Exhibit 4(h)
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DATED 21ST DECEMBER 2001
HK$2,050,000,000 TERM LOAN AND
STANDBY LETTER OF CREDIT FACILITIES
Between
PACIFIC CENTURY HKT LIMITED
as Borrower
PACIFIC CENTURY CYBERWORKS LIMITED
as Guarantor
EXCEL BRIGHT PROPERTIES LIMITED
GAIN SCORE LIMITED
as Obligors
INDUSTRIAL AND COMMERCIAL BANK OF CHINA (ASIA) LIMITED
as Co-ordinating Arranger
THE BANKS AND FINANCIAL INSTITUTIONS
named herein as Lenders
and
XXX XXXXXXXXXX XXX XXXXXXXXXX XXXX XX XXXXX,
XXXX XXXX BRANCH
as Agent
Xxxxxxx Xxxxx
23rd Floor, Gloucester Tower
The Landmark
Central
Hong Kong
(Ref: 2394/5054/30822918)
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TABLE OF CONTENTS
SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION ..........................................1
SECTION 2
THE FACILITIES
2. THE FACILITIES .........................................................12
3. PURPOSE ................................................................12
4. CONDITIONS OF DRAWDOWN AND UTILISATION .................................13
SECTION 3
DRAWDOWN
5. DRAWDOWN................................................................14
SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
6. REPAYMENT...............................................................18
7. PREPAYMENT AND CANCELLATION ............................................18
SECTION 5
INTEREST AND FEES
8. INTEREST ...............................................................21
9. INTEREST PERIODS .......................................................22
10. RIGHT OF SBLC LENDERS ..................................................22
11. PAYMENTS IN RESPECT OF SBLCS ...........................................24
12. CHANGES TO THE CALCULATION OF INTEREST .................................26
13. FEES ...................................................................27
SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
14. TAX GROSS-UP AND INDEMNITIES ...........................................29
15. INCREASED COSTS ........................................................30
16. OTHER INDEMNITIES ......................................................31
17. MITIGATION BY THE FINANCE PARTIES ......................................33
18. EXPENSES ...............................................................33
19. COSTS ..................................................................33
SECTION 7
GUARANTEE
20. GUARANTEE AND INDEMNITY ................................................34
SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
21. REPRESENTATIONS ........................................................37
22. INFORMATION UNDERTAKINGS ...............................................40
23. GENERAL UNDERTAKINGS ...................................................41
24. EVENTS OF DEFAULT ......................................................44
SECTION 9
CHANGES TO PARTIES
25. CHANGES TO THE LENDERS .................................................48
26. CHANGE TO THE BORROWER .................................................51
SECTION 10
THE FINANCE PARTIES
27. ROLE OF THE AGENT AND THE CO-ORDINATING ARRANGER .......................52
28. CONDUCT OF BUSINESS BY THE FINANCE PARTIES .............................56
29. SHARING AMONG THE LENDERS ..............................................56
XXXXXXX 00
XXXXXXXXXXXXXX
00. PAYMENT MECHANICS ......................................................59
31. SET-OFF ................................................................61
32. NOTICES ................................................................61
33. CALCULATIONS AND CERTIFICATES ..........................................62
34. PARTIAL INVALIDITY .....................................................63
35. REMEDIES AND WAIVERS ...................................................63
36. AMENDMENTS AND WAIVERS .................................................63
37. COUNTERPARTS ...........................................................64
SECTION 12
GOVERNING LAW AND ENFORCEMENT
38. GOVERNING LAW ..........................................................65
39. ENFORCEMENT.............................................................65
SCHEDULE 1 THE ORIGINAL LENDERS ..............................................67
SCHEDULE 2 CONDITIONS PRECEDENT ..............................................68
SCHEDULE 3 REQUESTS ..........................................................71
SCHEDULE 4 FORM OF TRANSFER CERTIFICATE ......................................73
SCHEDULE 5 FORM OF SBLC ......................................................75
SCHEDULE 6 SBLC REDUCTION SCHEDULE ...........................................77
SCHEDULE 7 FORM OF SBLC APPLICATION ..........................................78
SCHEDULE 8 FORM OF SBLC AMENDMENT APPLICATION ................................79
SCHEDULE 9 PRC PROPERTIES ....................................................80
SCHEDULE 10 LEASING ACCOUNT REPORT ...........................................81
THIS AGREEMENT is dated 21st December 2001 and made between:
(1) PACIFIC CENTURY HKT LIMITED (to be renamed PROFIT CENTURY FINANCE NO. 2
LIMITED) (the "Borrower");
(2) PACIFIC CENTURY CYBERWORKS LIMITED (the "Guarantor");
(3) EXCEL BRIGHT PROPERTIES LIMITED (the "Chargor");
(4) GAIN SCORE LIMITED ("Gain Score"), a company incorporated in the British
Virgin Islands;
(5) INDUSTRIAL AND COMMERCIAL BANK OF CHINA (ASIA) LIMITED (the
"Co-ordinating Arranger");
(6) THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1 as lenders
(the "Original Lenders");
(7) XXX XXXXXXXXXX XXX XXXXXXXXXX XXXX XX XXXXX, XXXX XXXX BRANCH as agent
of the Lenders (the "Agent");
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"Account Charge" means the account charge given or to be given by the
RMB Borrower in favour of the Beneficiary over the Charged Account.
"Affiliate" means, in relation to any person, a Subsidiary of that
person or a Holding Company of that person or any other Subsidiary of
that Holding Company.
"Agreement Date" means the date of this Agreement.
"Arrangement Fee Letter" means an arrangement fee letter of even date
between the Co-ordinating Arranger and the Borrower, setting out the
arrangement fees payable by the Borrower under Clause 13.4 (Arrangement
fee).
"Authorization" means an authorization, consent, approval, resolution,
licence, exemption, filing or registration.
"Availability Period" means the period from and including the Agreement
Date to and including 31st December 2002 or the date on which all
Available Commitments are reduced to zero whichever is the earlier.
"Available Commitment" means the aggregate for the time being of the
Available Term Loan Commitment and Available SBLC Commitment.
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"Available Facility" means the aggregate for the time being of the
Available Term Loan Facility and the Available SBLC Facility.
"Available SBLC Commitment" means an SBLC Lender's Commitment minus the
amount of its participation in any issue of an SBLC.
"Available SBLC Facility" means the aggregate for the time being of each
SBLC Lender's Available SBLC Commitment.
"Available Term Loan Commitment" means a Term Loan Lender's Commitment
minus:
(a) the amount of its participation in any outstanding Loans; and
(b) in relation to any proposed Drawdown, the amount of its
participation in any Loans that are due to be made on or before
the proposed Drawdown Date.
"Available Term Loan Facility" means the aggregate for the time being of
each Term Loan Lender's Available Term Loan Commitment.
"Beneficiary" means The Industrial and Commercial Bank of China, Head
Office.
"Break Costs" means the amount (if any) by which:
(a) the interest which a Lender should have received for the period
from the date of receipt of all or any part of its participation
in a Loan or Unpaid Sum to the last day of the current Interest
Period in respect of that Loan or Unpaid Sum, had the principal
amount or Unpaid Sum received been paid on the last day of that
Interest Period;
exceeds:
(b) the amount which that Lender would be able to obtain by placing
an amount equal to the principal amount or Unpaid Sum received by
it on deposit with a leading bank in the Hong Kong interbank
market for a period starting on the Business Day following
receipt or recovery and ending on the last day of the current
Interest Period.
"Business Day" means a day (other than a Saturday or a Sunday) on which
commercial banks are open for business in Hong Kong and where such term
is used in relation to the issue of or any payment under an SBLC, the
PRC.
"Car Parks" means the car parks owned by the RMB Borrower comprising
part of Pacific Century Place, Beijing 0X Xxxxxx'x Xxxxxxx Xxxx, Xxxxx
Xxxxxxxx Xxxxxxxx, Xxxxxxx, XXX.
"Charged Account" means the operating account held with ICBC in the name
of the RMB Borrower into which the RMB Borrower shall deposit proceeds
from the PRC Properties in accordance with the RMB Facility Documents.
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"Commitment" means:
(a) in relation to an Original Lender, the amount set opposite its
name under the heading "Commitment" in Schedule 1 (The Original
Lenders) and the amount of any other Commitment transferred to it
under this Agreement; and
(b) in relation to any other Lender, the amount of any Commitment
transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Debenture" means the debenture entered into or to be entered into by
Gain Score in favour of ICBC to secure the obligations of the Borrower
and the RMB Borrower under the HKD Facilities and the RMB Facility
respectively.
"Default" means an Event of Default or any event or circumstance
specified in Clause 24 (Events of Default) which would (with the expiry
of a grace period, the giving of notice, the making of any determination
under the Finance Documents or any combination of any of the foregoing)
be an Event of Default.
"Drawdown" means a drawdown of the Term Loan Facility.
"Drawdown Date" means the date of a Drawdown, being the date on which
the relevant Loan is to be made.
"Drawdown Request" means a notice substantially in the form set out in
Part I of Schedule 3 (Requests).
"Expiry Date" means, in relation to an SBLC, 14 Business Days after the
earlier of:
(a) the Repayment Date;
(b) the date upon which the RMB Loan in respect of which such SBLC
was issued together with all interest thereon and all other
amounts payable to the Beneficiary under the RMB Loan Agreement
relating thereto have been irrevocably and unconditionally repaid
or prepaid in full; and
(c) the date upon which the Principal Amount of that SBLC (as
determined in accordance with the terms of that SBLC) is
irrevocably reduced to zero in accordance with the terms of this
Agreement.
"Event of Default" means any event or circumstance specified as such in
Clause 24 (Events of Default).
"Facilities" means the Term Loan Facility and the SBLC Facility.
"Facility Office" means the office or offices notified by a Lender to
the Agent in writing on or before the date it becomes a Lender (or,
following that date, by not less than five Business Days' written
notice) as the office or offices through which it will perform its
obligations under this Agreement.
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"Finance Documents" means this Agreement, the Security Documents, the
RMB Facility Documents, the Arrangement Fee Letter, the ICBC HK
Indemnity Letter, the PCCW Indemnity Letter, each SBLC and any other
document designated as such by the Agent and the Borrower and "Finance
Document" shall mean any or a specific one of them as the context
requires.
"Finance Party" means the Agent, the Co-ordinating Arranger or a Lender.
"Financial Indebtedness" means any indebtedness for or in respect of:
(a) moneys borrowed;
(b) any acceptance credit;
(c) any bonds, notes, debentures, loan stock or any similar
instrument;
(d) any lease or hire purchase contract which would, in accordance
with generally accepted accounting principles in Hong Kong, be
treated as a finance or capital lease;
(e) receivables sold or discounted (other than on a non-recourse
basis);
(f) any amount raised under any other transaction having the
commercial effect of a borrowing;
(g) any derivative or hedging transaction entered into in connection
with protection against or benefit from fluctuation in any rate
or price (and, when calculating the value of any derivative
transaction, only the marked to market value shall be taken into
account);
(h) any counter indemnity obligation in respect of a guarantee,
indemnity, bond, standby or documentary letter of credit or any
other instrument issued by a bank or financial institution; and
(i) the amount of any liability in respect of any guarantee or
indemnity for any of the items referred to in paragraphs (a) to
(h) above.
"FX Cushion" means, at any time, the percentage of the HK$ amount of the
total SBLCs issued under this Agreement being at least 105% of the RMB
equivalent amount of the outstanding principal due to the Beneficiary
under the RMB Facility. For the purposes of the FX Cushion, the exchange
rate between HK$ and RMB shall be determined by the Agent in its sole
discretion (using the exchange rate for such currencies as is generally
applicable at the relevant time to transactions to which it is a party).
"Group" means the Borrower, the Guarantor, the RMB Borrower, Gain Score
and the Chargor.
"HIBOR" means, in relation to the determination of the relevant rate of
interest for a period,
(i) the rate designated as "FIXING@11:00" (or any other designation
which may from time to time replace that designation or, if no
such designation appears, the arithmetic average (rounded
upwards, to five decimal places) of the
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displayed rates) appearing under the headings "HONG KONG
INTERBANK OFFERED RATES (HK DOLLAR)" on the Reuters Screen
"HIBOR1 = R" Page (or, if that Reuters Screen "HIBOR1 = R" Page
is not available, its successor page as the Agent may in its
absolute discretion determine or from such other source as the
Agent may in its absolute discretion determine), for that period
(or, if there is no identical period, such period as is nearly
comparable to that period as the Agent may in its absolute
discretion determine), at or about 11:00 a.m. (Hong Kong time) on
the relevant Quotation Date (the "Reuters HIBOR Rate"), or
(ii) if the applicable Reuters HIBOR Rate is not available before
12:00 noon (Hong Kong time) on the first day of that period or if
at any time the Agent determines in its absolute discretion that
there is no nearly comparable period as mentioned in (i) above,
the interest rate at which HK Dollar deposits are offered to the
Agent in the Hong Kong inter-bank market at 12:00 noon (Hong Kong
time) on the first day of the relevant Quotation Date for a
period equivalent to the relevant required period (or, if the
period is not the same, such period as is nearly comparable
thereto as the Agent determines) in an amount comparable to the
Loan or any unpaid sum.
"HK Dollars" or "HK$" means the lawful currency for the time being of
Hong Kong.
"HKD Facilities" means the Term Loan Facility and the SBLC Facility.
"HKD Finance Documents" means all the Finance Documents save for the RMB
Facility Documents.
"Holding Company" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
"ICBC" means The Industrial and Commercial Bank of China.
"ICBC HK" means Xxx Xxxxxxxxxx xxx Xxxxxxxxxx Xxxx xx Xxxxx, Xxxx Xxxx
Branch.
"ICBC HK Indemnity Letter" means an indemnity letter entered into or to
be entered into by ICBC HK in favour of the Beneficiary in relation to
the RMB Facility.
"Interest Period" means, in relation to a Loan, each period determined
in accordance with Clause 9 (Interest Periods) and, in relation to an
Unpaid Sum, each period determined in accordance with Clause 8.3
(Default interest).
"Issue Date" means, in relation to the issue of an SBLC, the date on
which it is proposed in the relevant SBLC Application that it be opened
or, after it has been opened, the date on which it was opened.
"Lender" means:
(a) any Original Lender; and
(b) any bank or financial institution which has become a Party in
accordance with Clause 25 (Changes to the Lenders),
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which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
"Loan" means a loan made or to be made under the Term Loan Facility or
the principal amount outstanding for the time being of that loan.
"Loan to Value Ratio" means, at any time, the percentage of the
outstanding balance (including all amounts drawndown or to be drawndown
pursuant to a Drawdown Request (or the equivalent thereof under the RMB
Facility)) of the Term Loan Facility and the RMB Facility at such time
to the aggregate open market value at such time of the PRC Properties
mortgaged in favour of the Beneficiary plus the value of such other
security acceptable to the Lenders pursuant to Clause 23.8 (Loan to
Value Ratio).
"Major Subsidiaries" means from time to time any Subsidiary of the
Guarantor whose gross revenues exceeds 20% of the consolidated gross
revenues of the Guarantor and its Subsidiaries, as specified in the most
recent consolidated financial statements of the Guarantor.
"Majority Lenders" means:
(a) if there are no Loans or SBLCs then outstanding, a Lender or
Lenders whose Commitments aggregate more than 66 2/3 per cent. of
the Total Commitments (or, if the Total Commitments have been
reduced to zero, aggregated more than 66 2/3 per cent. of the
Total Commitments immediately prior to the reduction); or
(b) at any other time, a Lender or Lenders whose participations in
the Loans and/or the SBLCs then outstanding aggregate more than
66 2/3 per cent. of all the Loans and/or the SBLCs then
outstanding.
"Margin" means one point four five per cent. (1.45%) per annum.
"Material Adverse Effect" means, in respect of any Obligor, an effect on
the financial condition or operations of that Obligor, or the ability of
that Obligor to comply with its obligations under the Finance Documents,
that is in the reasonable opinion of the Majority Lenders, material and
adverse.
"Month" means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar month,
except that:
(a) if the numerically corresponding day is not a Business Day, that
period shall end on the next Business Day in that calendar month
in which that period is to end if there is one, or if there is
not, on the immediately preceding Business Day; and
(b) if there is no numerically corresponding day in the calendar
month in which that period is to end, that period shall end on
the last Business Day in that calendar month.
The above rules will only apply to the last Month of any period.
"Mortgages" means the mortgages given or to be given by the RMB Borrower
in favour of the Beneficiary in relation to the PRC Properties and
"Mortgage" means any of them.
6
"Obligors" means the Borrower, the Guarantor, Gain Score and the Chargor
and "Obligor" shall mean any or a specific one of them as the context
requires.
"Original Financial Statements" means:
(a) in relation to the Guarantor, its audited consolidated financial
statements for its financial year ended 31st December 2000;
(b) in relation to Gain Score, its audited financial statements for
its financial year ended 31st December 2000;
(c) in relation to the Borrower and the Chargor, its audited
financial statements for its financial year ended 31st December
2002.
"Party" means a party to this Agreement and includes its successors in
title, permitted assigns and permitted transferees.
"Permitted Disposal" means in respect of the RMB Borrower:
(1) any sale of any unit of the PRC Properties for a consideration
not less than 80% of the market price of the subject PRC Property
(as set out in the most recent valuation report);
(2) any lease of any unit of the PRC Properties for a rental not less
than 80% of the prevailing rental price of the subject PRC
Property (determined on a portfolio basis);
(3) any other sales of any unit of the PRC Properties, subject to a
maximum aggregate amount of such sales in any calendar year of
HK$200 million (or its equivalent in any other currency or
currencies); and
in respect of Gain Score, any transfer by Gain Score of its interests in
Beijing Jingwei Property Management Co. Ltd. to a Subsidiary of the
Guarantor.
"Permitted Purchases" means a purchase of (1) any property forming part
of the PRC Properties and (2) any other assets for an aggregate
consideration not exceeding HK$20,000,000 (or its equivalent in any
other currency or currencies) in any year.
"Permitted Indebtedness" means, in respect of any year, Financial
Indebtedness of the RMB Borrower which, when aggregated with all other
Financial Indebtedness incurred by the RMB Borrower during such year not
exceeding HK$20,000,000 (or its equivalent in any other currency or
currencies).
"PCCW Indemnity Letter" means an indemnity letter entered into or to be
entered into by the Guarantor in favour of ICBC HK in relation to the
obligations of ICBC HK under the ICBC HK Indemnity Letter.
"PRC" means the People's Republic of China.
"PRC Properties" means Pacific Century Place Beijing the details of
which are set out in Schedule 9.
7
"Proportion" means, in respect of an SBLC Lender, its SBLC Commitment
divided by the Total SBLC Commitments, both determined as at the Issue
Date of the relevant SBLC (but subject to any variation thereof pursuant
to Clause 25 (Changes to the Lenders)).
"Principal Amount" means, in relation to an SBLC, the amount stated
therein as being the principal amount of that SBLC.
"Quotation Date" means, in relation to any period for which an interest
rate is to be determined in accordance with the terms of this Agreement,
the day on which quotations would ordinarily be given by prime banks in
the Hong Kong interbank market for deposits in HK Dollars for delivery
on the first day of that period.
"Repayment Date" means (i) for the Term Loan Facility, 20th December
2008, and (ii) for the SBLC Facility, 20th January 2009.
"Repeating Representations" means each of the representations set out in
Clause 21 (Representations) except Clauses 21.7 (Deduction of Tax) and
21.8 (No filing or stamp taxes).
"RMB" means the lawful currency for the time being of the PRC.
"RMB Borrower" means Beijing Xxxx Xxx House and Land Estate Development
Co. Ltd., a sino-foreign co-operative joint venture established under
the laws of the PRC.
"RMB Commitment" means the commitment of the Beneficiary under the RMB
Facility as determined in accordance with the terms of the RMB Facility
Documents.
"RMB Facility" means the RMB1,300,000,000 facility provided by the
Beneficiary to the RMB Borrower under the RMB Loan Agreements.
"RMB Facility Agreement" means the RMB facility agreement entered or to
be entered into by the Beneficiary as lender and the RMB Borrower as
borrower in relation to the RMB Facility.
"RMB Facility Documents" means the RMB Loan Agreements, the RMB Facility
Agreement, the Mortgages and the Account Charge.
"RMB Loan" means a RMB loan made or to be made under the RMB Facility or
the principal amount outstanding of that loan.
"RMB Loan Agreements" means each of the RMB loan agreements entered into
or to be entered into between the Beneficiary as lender and the RMB
Borrower as borrower in relation to the RMB Facility and pursuant to the
terms of the RMB Facility Agreement and "RMB Loan Agreement" shall mean
any of them.
"Rollover Notice" means a notice substantially in the form set out in
Part II of Schedule 3 (Requests) given in accordance with Clause 9
(Interest Periods).
"SBLC" means each standby letter of credit issued by the Agent, as agent
for and on behalf of the SBLC Lenders, substantially in the form of
Schedule 6.
"SBLC Amendment Application" means a notice substantially in the form of
Schedule 8.
8
"SBLC Application" means a notice substantially in the form set out in
Schedule 7.
"SBLC Commitment" means in relation to an SBLC Lender, the amount set
out opposite its name in Part II of Schedule 1 as reduced, cancelled,
varied, increased or assumed (as the case may be) in accordance with the
terms of this Agreement.
"SBLC Facility" means the SBLC facility made available under this
Agreement as described in Clause 2 (The Facilities).
"SBLC Issuance Fee" means any issuance fee payable by the Borrower to
the Agent for the account of the SBLC Lenders pursuant to Clause 11.5
(SBLC Issuance Fee).
"SBLC Lenders" means those Lenders which have a SBLC Commitment.
"Security" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement or
arrangement having a similar effect.
"Security Documents" means the Debenture and the Share Charge and
"Security Document" shall mean either of them.
"Share Charge" means the share charge entered or to be entered into by
the Chargor over its shares in Gain Score in favour of ICBC to secure
the obligations of the Borrower and the RMB Borrower under the HKD
Facilities and the RMB Facility respectively.
"Subsidiary" of a person means any company or entity directly or
indirectly controlled by such person, for which purpose "control" means
either ownership of more than 50 per cent. of the voting share capital
(or equivalent right of ownership) of such company or entity or power to
direct its policies and management whether by contract or otherwise.
"Tax" means any tax, levy, impost, duty or other charge or withholding
of a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the
same).
"Term Loan Commitment" means in relation to a Term Loan Lender, the
amount set out opposite its name on Part I of Schedule 1 as reduced,
cancelled, varied, increased or assumed (as the case may be) in
accordance with the terms of this Agreement.
"Term Loan Facility" means the term loan facility made available under
this Agreement as described in Clause 2 (The Facilities).
"Term Loan Lenders" means each Lender whose name appears in Part I of
Schedule 1 in its capacity as a participant in the Term Loan Facility.
"Total Commitments" means the aggregate of the Total Term Loan
Commitments and the Total SBLC Commitments being HK$2,050,000,000 as at
the Agreement Date.
"Total SBLC Commitments" means the aggregate from time to time of all
the SBLC Commitments.
9
"Total Term Loan Commitments" means the aggregate from time to time of
all the Term Loan Commitments.
"Transfer Certificate" means a certificate substantially in the form set
out in Schedule 4 (Form of Transfer Certificate) or any other form
agreed between the Agent and the Borrower.
"Transfer Date" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer Certificate;
and
(b) the date on which the Agent executes the Transfer Certificate.
"Unpaid Sum" means any sum due and payable but unpaid by an Obligor
under the Finance Documents.
"US$" means the lawful currency of the United States of America.
1.2 Construction
1.2.1 Any reference in this Agreement to:
(A) "assets" includes present and future properties, revenues
and rights of every description;
(B) a "Finance Document" or any other agreement or instrument
is a reference to that Finance Document or other agreement
or instrument as amended or novated;
(C) "indebtedness" includes any obligation (whether incurred
as principal or as surety) for the payment or repayment of
money, whether present or future, actual or contingent;
(D) a "person" includes any person, firm, company,
corporation, government, state or agency of a state or any
association, trust or partnership (whether or not having
separate legal personality) or two or more of the
foregoing;
(E) a "regulation" includes any regulation, rule, official
directive, request or guideline (whether or not having the
force of law) of any governmental, intergovernmental or
supranational body, agency, department or regulatory,
self-regulatory or other authority or organisation;
(F) a provision of law is a reference to that provision as
amended or re-enacted; and
(G) unless a contrary indication appears, a time of day is a
reference to Hong Kong time.
1.2.2 Section, Clause and Schedule headings are for ease of reference
only.
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1.2.3 Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection
with any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement.
1.2.4 A Default (other than an Event of Default) is "continuing" if it
has not been remedied and an Event of Default is "continuing" if
it has not been waived.
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SECTION 2
THE FACILITIES
2. THE FACILITIES
2.1 The Facilities
Subject to the terms of this Agreement,
2.1.1 the Term Loan Lenders shall make available to the Borrower a HK
Dollar term loan facility in an aggregate principal amount equal
to the Total Term Loan Commitments; and
2.1.2 the SBLC Lenders shall make available to the Borrower a HK Dollar
standby letter of credit facility in an aggregate principal
amount equal to the Total SBLC Commitments.
2.2 Lenders' rights and obligations
2.2.1 The obligations of each Lender under the Finance Documents are
several. Failure by a Lender to perform its obligations under the
Finance Documents does not affect the obligations of any other
Party under the Finance Documents. No Finance Party is
responsible for the obligations of any other Finance Party under
the Finance Documents.
2.2.2 The rights of each Lender under or in connection with the Finance
Documents are separate and independent rights and any debt
arising under the Finance Documents to a Lender from an Obligor
shall be a separate and independent debt.
2.2.3 A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance
Documents.
3. PURPOSE
3.1 Purpose
3.1.1 The Borrower shall apply all amounts borrowed by it under the
Term Loan Facility towards the general working capital
requirements of the Guarantor and its Subsidiaries.
3.1.2 Each SBLC is to be issued as security in respect of the RMB
Borrower's obligations to the Beneficiary under the RMB Facility.
3.2 Monitoring
No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
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4. CONDITIONS OF DRAWDOWN AND UTILISATION
4.1 Initial conditions precedent
The Borrower may not deliver a Drawdown Request or an SBLC Application
unless the Agent has received all of the documents and other evidence
listed in Schedule 2 (Conditions Precedent) in form and substance
reasonably satisfactory to the Agent. The Agent shall notify the
Borrower and the Lenders promptly after being so satisfied.
4.2 Further conditions precedent
The Lenders will only be obliged to comply with their obligations to
make any amount available under the Term Loan Facility pursuant to
Clause 5.4 (Lenders' participation) or to participate in the issue of an
SBLC (as the case may be) if on the date of the Drawdown Request or the
SBLC Application (as the case may be) and on the proposed Drawdown Date
or the Issue Date (as the case may be):
4.2.1 no Default is continuing or would result from the proposed Loan
or issue of the relevant SBLC (as the case may be); and
4.2.2 the Repeating Representations to be made by each Obligor are true
in all material respects.
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SECTION 3
DRAWDOWN
5. DRAWDOWN
5.1 Delivery of a Drawdown Request and SBLC Application
The Borrower may utilise the Term Loan Facility and the SBLC Facility by
delivery to the Agent of a duly completed Drawdown Request or a duly
completed SBLC Application (as the case may be) not later than two (2)
Business Days, or in the case of an SBLC Application three (3) Business
Days before the Drawdown Date or the Issue Date (as the case may be).
5.2 Completion of a Drawdown Request and SBLC Application
5.2.1 Each Drawdown Request and SBLC Application is irrevocable and
will not be regarded as having been duly completed unless:
(A) the proposed Drawdown Date or the Issue Date (as the case
may be) is a Business Day within the Availability Period;
(B) the currency and amount of the Drawdown or the SBLC to be
issued (as the case may be) comply with Clause 5.3
(Currency and amount); and
(C) in the case of a Drawdown Request the proposed Interest
Period complies with Clause 9 (Interest Periods).
5.2.2 Only one Loan or one SBLC may be requested in each Drawdown
Request or SBLC Application, but the Borrower may, subject to the
other terms of this Agreement, deliver more than one Drawdown
Request and/or SBLC Application on any one day.
5.2.3 The Borrower may only deliver a maximum of five (5) Drawdown
Requests and a maximum of six (6) SBLC Applications during the
Availability Period.
5.3 Currency and amount
5.3.1 The currency specified in a Drawdown Request and an SBLC
Application must be HK Dollars.
5.3.2 The amount of the proposed Loan must be an amount which is not
more than the Available Term Loan Facility and which is a minimum
of HK$100,000,000 (or, if less, the Available Term Loan Facility)
and an integral multiple of HK$10,000,000. The amount of the
proposed SBLC must be less than or equal to the Available SBLC
Facility subject to Clause 5.9 (Uncommitted Facility).
5.4 Lenders' participation in Loans
5.4.1 If the conditions set out in this Agreement have been met, each
Term Loan Lender shall make its participation in each Loan
available through its Facility Office on the Drawdown Date.
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5.4.2 The amount of each Term Loan Lender's participation in each Loan
will be equal to the proportion borne by its Available Term Loan
Commitment to the Available Term Loan Facility immediately prior
to making the Loan.
5.4.3 The Agent shall notify each Term Loan Lender of the amount of
each Loan as soon as practicable after receiving the Drawdown
Request but in any event not later than two (2) Business Days
before the proposed Drawdown Date.
5.5 Issue of SBLCs
5.5.1 Subject to the terms of this Agreement, the Agent shall, as agent
for and on behalf of the SBLC Lenders, execute and issue an SBLC
in favour of the Beneficiary on the Issue Date for such SBLC. The
Principal Amount of each SBLC shall be an amount in HK Dollars
which is the equivalent of the amount of the RMB Loan in respect
of which it is issued. The exchange rate between HK$ and RMB
shall be determined by the Agent in its sole discretion (using
the exchange rate for such currencies as is generally applicable
at the relevant time to transactions to which it is a party) and
notified to the Borrower at least five (5) Business Days before
the Issue Date of each SBLC.
5.5.2 Each SBLC Lender's liability under and in respect of an SBLC
shall be its Proportion of the aggregate liabilities thereunder.
5.6 Agent to complete the SBLCs
5.6.1 Each SBLC Lender hereby (in the case of an SBLC Lender which is
an original party to this Agreement) or by its written
confirmation referred to in Clause 25.5 (Procedure for transfer)
(in the case of an SBLC Lender which is not an original party to
this Agreement) irrevocably:
(A) authorises the Agent (acting by any of its officers), for
and on behalf of the SBLC Lender concerned to sign and
issue each SBLC referred to in Clause 5.5 (Issue of
SBLCs);
(B) agrees that the Agent may effect the delivery of each such
SBLC to the Beneficiary by retaining the SBLC and holding
the SBLC on behalf of and to the order of the Beneficiary
(the Agent shall give to the Beneficiary a copy of each
such SBLC which it holds on its behalf);
(C) agrees to ratify, on first demand by the Agent, the
execution and issue of each such SBLC; and
(D) agrees, on first demand, to indemnify and hold harmless
the Agent (and its officers, employees, servants and
agents) from any and all actions, claims, costs, damages,
expenses, liabilities and losses which the Agent (or its
officers, employees, servants or agents, as the case may
be) may suffer or incur by reason of the Agent's executing
and issuing in good faith an SBLC on behalf of the SBLC
Lenders.
5.6.2 The Agent shall:-
(A) notify each SBLC Lender of the details of each drawdown
request delivered under the relevant RMB Loan Agreement
and of the
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associated SBLC Application and of that SBLC Lender's
Proportion of each SBLC to be issued on the relevant Issue
Date as soon as practicable after receiving such SBLC
Application;
(B) within two (2) Business Days of the issuance by the Agent
of any SBLC on behalf of an SBLC Lender, notify that SBLC
Lender by tested telex of details of each such SBLC
including the Issue Date and the Proportion of that SBLC
Lender in that SBLC; and
(C) if requested by an SBLC Lender, provide a copy of that
SBLC to that SBLC Lender as soon as reasonably practicable
following any such request.
5.7 Cancellation of the Available Facility
Any part of the Available Term Loan Facility and Available SBLC Facility
at the expiry of the Availability Period shall thereupon be deemed to be
cancelled and automatically reduced to zero.
5.8 Requests for Amendments to SBLC
5.8.1 Following the issuance of an SBLC pursuant to Clause 5.5 (Issue
of SBLCs) or an Additional SBLC under Clause 5.9 (Uncommitted
Facility) (as the case may be), the Borrower may on any Business
Day request the Agent to effect amendments to such SBLC issued to
increase or decrease (as referred to in Clause 11.3.4) the face
amount of such SBLC so that the SBLC (with such increased or
decreased face amount) will be sufficient to secure the RMB
Borrower's obligations under the RMB Facility and to maintain the
FX Cushion, provided that:
(a) the Agent shall have received not later than 12:00 noon
(Hong Kong time) on the third (3rd) Business Day before
the date on which such amendments to the SBLC is requested
to be made:
(i) an original SBLC Amendment Application duly
completed and signed by the Borrower (specifying
the increase or decrease in the face amount of such
SBLC required) together with all other documents
reasonably required by the Agent in connection
therewith;
(ii) evidence in form and substance reasonably
satisfactory to the Agent that the Loan to Value
Ratio and the FX Cushion shall be maintained after
taking into account the increase or decrease of
face amount as requested in such SBLC Amendment
Application; and
(iii) such other supporting documents as the Agent may
reasonably require;
(b) the Borrower shall pay the Agent all expenses and charges
properly and reasonably incurred by it in connection with
such amendments to the SBLC issued by the Agent forthwith
upon demand;
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(c) no Default shall have occurred (or be likely to occur as a
result of the amendments to the SBLC being made) and all
the Repeating Representations made by the Obligors in or
in connection with this Agreement respectively shall be
true and correct as at the date on which the amendments to
the SBLC are to be made with reference to the facts and
circumstances then subsisting;
(d) any amendment to an SBLC shall be subject to the prior
consent of the Beneficiary (not to be reasonably withheld
or delayed);
The Agent shall notify the SBLC Lenders of the details of the
SBLC Amendment Application as soon as practicable after receiving
such SBLC Amendment Application.
5.8.2 An SBLC Amendment Application once given shall be irrevocable and
the Borrower shall be bound in accordance therewith, except as
otherwise provided in this Agreement. An SBLC Amendment
Application submitted to the Agent shall constitute an
irrevocable authorisation for the Agent to amend the SBLC.
Following receipt of the documents listed in Clause 5.8.1
complying with the terms of this Agreement and subject to the
provisions of this Agreement, the Agent shall, on the date for
the amendments to be effected as requested in the relevant SBLC
Amendment Application, effect the amendments (in form and
substance approved by the Agent) to the SBLC so that the
aggregate increase or decrease in the face amount of the SBLC
shall be equal to the amount of increase or decrease requested in
such SBLC Amendment Application. The Agent shall promptly fax its
amendments to the SBLC issued by it to the Beneficiary with the
original to follow by courier o the terms set out in such SBLC
Amendment Application.
5.9 Uncommitted Facility
Any or all SBLC Lenders may, on an uncommitted basis and subject to
being provided with such collateral therefor as it or they shall
reasonably in its sole discretion require, agree to either issue further
SBLCs (each an "Additional SBLC") or amend any issued SBLCs for the
purpose of securing the obligations of the RMB Borrower under the RMB
Facility if required in order to maintain the FX Cushion for such
obligations. Any such Additional SBLCs or amended SBLCs shall at all
times (when aggregated with all other SBLCs) comply with the Loan to
Value Ratio and be subject to the provisions of this Agreement including
without limitation this Clause 5, Clause 10 (Rights of SBLC Lenders) and
Clause 11 (Payments in respect of SBLCs) and any other terms and
conditions agreed with the Borrower and such SBLC Lenders at the time
such SBLCs are issued or amended.
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SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
6. REPAYMENT
6.1 Repayment of Loans
The Borrower shall repay the Loans in full on the Repayment Date.
6.2 Reborrowing
The Borrower cannot reborrow any part of the Term Loan Facility which is
repaid.
7. PREPAYMENT AND CANCELLATION
7.1 Illegality
If it becomes unlawful in any relevant jurisdiction for a Lender to
perform any of its obligations as contemplated by this Agreement or to
fund its participation in any Loan or to issue an SBLC:
7.1.1 that Lender shall promptly notify the Agent upon becoming aware
of that event;
7.1.2 upon the Agent notifying the Borrower, the Commitment of that
Lender will be immediately cancelled;
7.1.3 if that Lender is a Term Loan Lender, the Borrower shall repay
that Lender's participation in the Loans made to the Borrower on
the last day of the Interest Period for each Loan occurring after
the Agent has notified the Borrower or, if earlier, the date
specified by the Lender in the notice delivered to the Agent
(being no earlier than the last day of any applicable grace
period permitted by law); and
7.1.4 if that Lender is an SBLC Lender, the Borrower shall at the
option of the relevant SBLC Lender either provide the relevant
SBLC Lender with cash cover in respect of its participation under
SBLCs or shall procure the reduction to zero (by variation of the
terms thereof) of the amount which may be demanded for on such
SBLC Lender under all SBLCs or shall procure the cancellation of
all SBLCs to which the SBLC Lender is a party.
7.2 Voluntary cancellation
The Borrower may, if it gives the Agent not less than 10 Business Days
(or such shorter period as the Majority Lenders may agree) prior notice,
cancel the whole or any part (being a minimum amount of HK$50,000,000)
of the Available Term Loan Facility and/or the Available SBLC Facility.
Any cancellation under this Clause 7.2 shall reduce the Commitments of
the Lenders under the relevant Facility rateably.
7.3 Voluntary prepayment of Loans
7.3.1 The Borrower may, if it gives the Agent not less than 10 Business
Days prior written notice, prepay the whole or any part of any
Loan (but, if in part, being an amount that reduces the amount of
the Loan by a minimum amount of
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HK$50,000,000 and an integral multiple of HK$50,000,000) on the
last day of an Interest Period.
7.3.2 A Loan may only be prepaid after the last day of the Availability
Period.
7.3.3 A prepayment fee of 1.5 per cent. of the amount prepaid under
Clause 7.3.1 shall be payable by the Borrower to the Agent (for
the account of each Term Loan Lender) on the date of prepayment
if such prepayment is not made in accordance with Clauses 7.3.1
and 7.3.2 (subject to Clause 7.3.4 below).
7.3.4 No prepayment fee shall be payable if a Loan is prepaid in whole
or in part in order to maintain the Loan to Value Ratio pursuant
to Clause 23.8 (Loan to Value Ratio) or pursuant to Clause 7.6
(Mandatory Prepayment).
7.4 Additional right of prepayment and cancellation
7.4.1 If:
(A) any sum payable to any Lender by the Borrower is required
to be increased under Clause 14.2 (Tax gross-up); or
(B) any Lender claims indemnification from the Borrower under
Clause 14.3 (Tax indemnity) or Clause 15.1 (Increased
costs); or
(C) interest on a Term Loan Lender's participation in a Loan
is being calculated in accordance with Clause 12.1 (Market
disruption),
the Borrower may, whilst the circumstance giving rise to the
requirement or indemnification or market disruption continues,
give the Agent notice of cancellation of the Term Loan Commitment
and/or, as the case may be, SBLC Commitment of that Lender and
its intention to procure the prepayment of that Lender's
participation in the Loans and/or, as the case may be (subject to
the Beneficiary's consent (which shall not be unreasonably
withheld or delayed) to the reduction of a corresponding amount
of the RMB Loan or providing alternative collateral therefor
acceptable to the Beneficiary) reduce the SBLCs by an aggregate
amount equal to such Lender's participation therein and release
such Lender from its obligations under this Agreement in respect
of such SBLCs.
7.4.2 On receipt of a notice referred to in paragraph 7.4.1 above, the
Term Loan Commitment of that Lender shall immediately be reduced
to zero.
7.4.3 On the last day of each Interest Period which ends after the
Borrower has given notice under paragraph 7.4.1 above (or, if
earlier, the date specified by the Borrower in that notice,
subject to payment of all amounts payable under Clause 16.4
(Break costs), the Borrower shall (without the payment of any
fee) prepay that Lender's participation in that Loan.
7.5 Restrictions
7.5.1 Any notice of cancellation or prepayment given by any Party under
this Clause 7 shall be irrevocable and, unless a contrary
indication appears in this Agreement, shall specify the date or
dates upon which the relevant
19
cancellation or prepayment is to be made and the amount of that
cancellation or prepayment.
7.5.2 Any prepayment under this Agreement shall be made together with
accrued interest on the amount prepaid and, if applicable the
prepayment fee under Clause 7.3.3 and all other amounts payable
under this Agreement including without limitation any amounts
payable under Clause 16.4 (Break costs).
7.5.3 The Borrower may not reborrow any part of the Term Loan Facility
which is prepaid.
7.5.4 The Borrower shall not repay or prepay all or any part of the
Loans or cancel all or any part of the Commitments except at the
times and in the manner expressly provided for in this Agreement.
7.5.5 No amount of the Total Commitments cancelled under this Agreement
may be subsequently reinstated.
7.6 Mandatory Prepayment
In the event that the RMB Borrower voluntarily repays or prepays in full
the RMB Loan and has discharged and released all or any of the Mortgages
(other than by reason of the RMB Lender demanding early repayment), then
the Agent, acting upon the instructions of the Majority Lenders, may, by
written notice to the Borrower require the Borrower to repay the Loan
together with all interest incurred thereon. If the Agent serves a
notice on the Borrower pursuant to this Clause 7.6 then the Borrower
shall not later than the last day of the then current Interest Period
repay the Loan in full together with all interest accrued thereon.
If the Agent receives a notice under this Clause 7 it shall promptly
forward a copy of that notice to either the Borrower or the affected
Lender, as appropriate.
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SECTION 5
INTEREST AND FEES
8. INTEREST
8.1 Calculation of interest
The rate of interest on each Loan for each Interest Period is the
percentage rate per annum which is the aggregate of the applicable:
8.1.1 Margin; and
8.1.2 HIBOR.
8.2 Payment of interest
The Borrower shall pay accrued interest on each Loan on the last day of
each Interest Period for that Loan.
8.3 Default interest
8.3.1 If the Borrower fails to pay any amount payable by it under a
Finance Document on its due date, interest shall accrue on the
Unpaid Sum from the due date up to the date of actual payment
(both before and after judgment) at a rate one per cent. (1%) per
annum higher than the rate which would have been payable if the
Unpaid Sum had, during the period of non-payment, constituted a
Loan for successive Interest Periods, each of a duration selected
by the Agent (acting reasonably). Any interest accruing under
this Clause 8.3 shall be immediately payable by the Borrower on
demand by the Agent.
8.3.2 The rate of default interest arising on an Unpaid Sum in relation
to the SBLC Facility shall be determined in accordance with
Clause 11.6 (SBLC Default Interest).
8.3.3 The default rate will be determined by the Agent on the first day
of such period selected by the Agent (acting reasonably) as the
Interest Period for such Unpaid Sum.
8.3.4 Default interest (if unpaid) arising on an Unpaid Sum will be
compounded with such Unpaid Sum at the end of each Interest
Period applicable to such Unpaid Sum but will remain immediately
due and payable.
8.4 Notification of rates of interest
The Agent shall promptly (and in any event before 5:00 p.m. (Hong Kong
time) on the date of determination) notify the Lenders and the Borrower
of the determination of a rate of interest under this Agreement.
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9. INTEREST PERIODS
9.1 Selection of Interest Periods
9.1.1 The Borrower may select an Interest Period for a Loan in the
Drawdown Request for that Loan or (if the Loan has already been
borrowed) by written notice to the Agent whether in the form of a
Rollover Notice or otherwise.
9.1.2 Each written notice to select an Interest Period given by the
Borrower (other than in the Drawdown Request) for a Loan is
irrevocable and must be delivered to the Agent by the Borrower
not later than two (2) Business Days before the commencement of
that Interest Period.
9.1.3 If the Borrower does not deliver a written notice to the Agent in
accordance with paragraph 9.1.2 above, the relevant Interest
Period will be the same length as the previous Interest Period.
9.1.4 Subject to this Clause 9, the Borrower may select an Interest
Period of one (1), two (2), three (3) or, six (6) Months or any
other period agreed between the Borrower and the Agent (acting on
the instructions of all the Lenders).
9.1.5 An Interest Period for a Loan shall not extend beyond the
Repayment Date. If an Interest Period would otherwise overrun the
Repayment Date, it shall be shortened so that it ends on the
Repayment Date.
9.1.6 Each Interest Period for a Loan shall start on the Drawdown Date
or (if already made) on the last day of its preceding Interest
Period.
9.2 Non-Business Days
If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period will instead end on the next Business
Day in that calendar month (if there is one) or the preceding Business
Day (if there is not).
9.3 Consolidation of Loans
Notwithstanding Clause 9.1 (Selection of Interest Periods), the first
Interest Period for each Loan shall end on the same day as the current
Interest Period for any other Loan. On the last day of those Interest
Periods, those Loans shall be consolidated and treated as one single
Loan.
10. RIGHT OF SBLC LENDERS
10.1 Indemnity
The Borrower agrees to indemnify each SBLC Lender, forthwith on first
demand, against any and all sums paid out by such SBLC Lender under or
pursuant to an SBLC in the same currency as such sums and for that
purpose will make payments to such SBLC Lender in accordance with the
provisions of this Agreement.
22
10.2 Borrower's confirmation
The Borrower confirms and agrees that:
10.2.1 each SBLC Lender shall be entitled and bound to make any payment
demanded in writing by the Beneficiary under an SBLC without
making any investigation as to the bona fide nature, validity or
genuineness of any such request or demand or the capacity of or
any limitation on the powers of any person issuing such demand
notwithstanding that the Borrower may dispute the validity of
such demand or payment or that the SBLC Lender may not have
confirmed that the Borrower agrees to the validity of such demand
or such payment;
10.2.2 the liability and obligation of such SBLC Lender to make such
payment shall be in no way diminished or prejudiced if it should
appear that, as between the Beneficiary and such SBLC Lender, the
Beneficiary was not entitled for whatever reason to demand
payment under such SBLC or that such demand was not valid or
genuine;
10.2.3 the SBLC Lenders deal in documents only and shall not be
concerned with the legality of any claim or any other underlying
transaction or any set-off, counterclaim or defence as between
the Borrower and the Beneficiary;
10.2.4 the obligations of the Borrower under this Agreement, including,
without limitation, its obligations under this Clause 10 shall
not be affected by any act, omission, matter or thing which but
for this provision, might operate to release or otherwise
exonerate the Borrower from such obligations in whole or in part
whether or not known to the Borrower, including, without
limitation:
(A) any time or waiver granted to or composition with any SBLC
Lender, the Beneficiary or any other person whatsoever; or
(B) any taking, variation, compromise, renewal or release of
or refusal or neglect to perfect or enforce any rights,
remedies or securities available to the SBLC Lender
concerned, the Beneficiary or any other person or arising
under any SBLC; or
(C) any variation of the SBLCs so that references in this
Agreement to any SBLC shall include any such variation in
that SBLC.
10.3 Continuing Indemnity
The indemnity contained in Clause 10.1 (Indemnity) above shall be a
continuing indemnity, shall extend to the ultimate balance of the
liabilities under any of the SBLCs and shall continue in force
notwithstanding any intermediate payment in whole or in part of any
liability under any SBLC.
10.4 SBLC Certificate
A certificate, in writing, signed by an officer of an SBLC Lender and
certifying the total amount of all claims, costs, damages, expenses,
liabilities, losses and obligations (actual or contingent) of that SBLC
Lender under or in respect of any SBLC shall be conclusive evidence of
the matters so certified, in the absence of manifest error.
23
10.5 No invalidity
No invalidity or unenforceability of all or any part of this Clause 10
or of any other term of this Agreement shall affect any rights of
indemnity or otherwise which an SBLC Lender would or may have in the
absence of or, in addition to the provisions of this Clause 10 or any
other term of this Agreement.
11. PAYMENTS IN RESPECT OF SBLCS
11.1 Demand on the Borrower
When any payment is made by an SBLC Lender under or pursuant to an SBLC,
such SBLC Lender shall as soon as practicable after:
11.1.1 making such payment; or
11.1.2 if such payment is effected by the debiting of any account of
such SBLC Lender by the bank (if any) at which payment under such
SBLC is available, receipt by such SBLC Lender of such bank's
debit advice,
make demand on the Borrower for payment of:
(A) an amount equal to the amount of such payment; and
(B) interest thereon payable under Clause 11.2 (Payment by the
Borrower).
11.2 Payment by the Borrower
The Borrower shall, forthwith on first demand, pay to an SBLC Lender an
amount equal to the aggregate of:
11.2.1 each sum paid by such SBLC Lender under an SBLC; and
11.2.2 interest thereon (which shall accrue in accordance with Clause
11.6 (SBLC Default Interest), for the period from the date of
such payment by such SBLC Lender up to the date of actual
reimbursement by the Borrower.
11.3 Prepayment of the RMB Facility and reduction of the SBLCs
11.3.1 If the RMB Borrower prepays any RMB Loan under any applicable
provision of the RMB Master Agreement:
(A) in full (together with all other amounts payable in
respect thereof under or pursuant to this Agreement) the
relevant SBLCs shall be returned to the Agent for
cancellation in accordance with the provisions of the RMB
Master Agreement; or
(B) in part only, the Beneficiary shall confirm in writing to
the Agent on behalf of the SBLC Lenders that the Principal
Amount of the SBLC issued to the Beneficiary is reduced by
the proportion of the amount prepaid which the SBLC issued
to it bears to all the SBLCs issued to the Beneficiary,
24
and the Agent, for and on behalf of the SBLC Lenders, shall
cancel or, as the case may be, reduce, the SBLC's concerned and
notify the SBLC Lenders and the Beneficiary.
11.3.2 A non-refundable prepayment fee of one point five per cent (1.5%)
of the amount reduced or cancelled under Clause 11.3.1 shall be
payable by the Borrower to the Agent (for the account of each
SBLC Lender) on the date of such reduction or cancellation
unless:
(A) the Borrower gives the Agent not less than six (6) Months
prior written notice to cancel or reduce the whole or any
part of any SBLC; and
(B) the prepayment of the RMB Facility shall be made solely
from funds from the Charged Account,
provided that no prepayment fee shall be payable under this
Clause 11.3.2 if the reduction or cancellation of such SBLC is to
maintain the FX Cushion and/or the Loan to Value Ratio pursuant
to the terms of this Agreement.
11.3.3 The SBLC Facility (and SBLCs issued under it) shall be reduced in
accordance with Schedule 7 provided that the reductions shall at
all times reflect the amortisation schedule of the RMB Facility
as determined from time to time by the RMB Lender and the date of
each reduction shall be one (1) Month from the due date of the
equivalent repayment instalment under the RMB Facility (or if
earlier the date of actual payment of such repayment instalment).
11.3.4 The SBLC Facility (and the SBLCs issued under it, including any
SBLCs referred to in Clause 5.9 (Uncommitted Facility)) may be
reduced from time to time (with the consent of the Agent and the
Beneficiary (such consent not to be unreasonably withheld or
delayed)) in order to reduce the value of the issued SBLCs to
maintain the FX Cushion. Any additional collateral provided to
the Lenders or any of them pursuant to Clause 5.9 (Uncommitted
Facility) shall be released upon the reduction of the related
SBLC in respect of which such collateral was given. Any portion
of the SBLC Facility and such SBLCs reduced in accordance with
this Clause may thereafter from time to time either (i) be
increased by an aggregate amount not exceeding the aggregate
amount of such reduction(s) if required to maintain the FX
Cushion provided that any such increase in the SBLC Facility
shall not be more than the FX Cushion or (ii) be reduced or
cancelled in accordance with Clause 11.3.1 but without payment of
any prepayment fee under Clause 11.3.2. The Agent shall make such
amendments to the SBLCs as may be required from time to time in
accordance with Clause 5.8 (Requests for Amendments to SBLC) (or
issue new SBLCs and amend the existing SBLCs) to give effect to
this Clause.
11.3.5 Any reduction or increase in the amount of the SBLC Facility
under Clause 11.3.4 shall only be permitted if the Loan to Value
Ratio is not breached.
11.4 Cancellation of SBLCs
After its Expiry Date, the Agent shall, on behalf of the SBLC Lenders,
promptly confirm to the Beneficiary and the Borrower that the SBLC
concerned has been cancelled.
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11.5 SBLC Issuance Fee
11.5.1 The Borrower shall pay to the Agent for the account of each SBLC
Lender a non-refundable (subject to Clause 11.5.3) issuance fee
on the aggregate amount of that SBLC Lender's Proportion of the
face amount of each issued SBLC at the rate of zero point six
eight per cent. (0.68%) per annum. The SBLC Issuance Fee for each
SBLC shall be payable in advance on the date of issuance of such
SBLC and then on 31st December 2002, 20th March 2003 and at the
end of each three (3) Month period after 20th March 2003 to the
Repayment Date (each a "SBLC Issuance Fee Payment Date") provided
that the period in which each SBLC Issuance Fee relates to shall
commence on the relevant SBLC Issuance Fee Payment Date and end
on the day immediately preceding the following SBLC Issuance Fee
Payment Date.
11.5.2 The amount of each SBLC Issuance Fee shall be determined with
reference to scheduled reductions in the amount of the SBLC
Facility and shall be adjusted at the end of each such period to
reflect the actual daily outstanding amount during such period.
11.5.3 If the SBLC Lenders are required to make any refunds to the
Borrower as a result of such adjustments under Clause 11.5.2 then
any refund shall be deducted from the amount of SBLC Issuance Fee
payable on the following SBLC Issuance Fee Payment Date provided
that the maximum amount of any refund that the SBLC Lenders are
required to make shall be limited to the total amount of SBLC
Issuance Fee payable on such SBLC Issuance Fee Payment Date.
11.6 SBLC Default Interest
If the Borrower fails to pay any sum under the SBLC Facility when due,
the Borrower shall pay interest on such sum from and including the due
date to the date of until payment (after as well as before judgement) at
the rate per annum determined by the Agent to be the aggregate of
11.6.1 two point four five per cent (2.45%); and
11.6.2 HIBOR or the SBLC Lenders' cost of funds whichever is the higher.
12. CHANGES TO THE CALCULATION OF INTEREST
12.1 Market disruption
12.1.1 If a Market Disruption Event occurs in relation to a Loan for any
Interest Period, then the rate of interest on each Term Loan
Lender's share of that Loan for the Interest Period shall be the
rate per annum which is the sum of:
(A) the Margin; and
(B) the rate notified to the Agent by that Term Loan Lender as
soon as practicable and in any event before interest is
due to be paid in respect of that Interest Period, to be
that which expresses as a percentage rate per annum the
cost to that Term Loan Lender of funding its
26
participation in that Loan from whatever source it may
reasonably select.
12.1.2 In this Agreement "Market Disruption Event" means:
(A) at or about 12:00 noon (Hong Kong time) on the relevant
Quotation Date HIBOR is not available and the Agent is
unable to determine HIBOR for the relevant Interest
Period; or
(B) before close of business in Hong Kong on the Quotation Day
for the relevant Interest Period, the Agent receives
notifications from a Term Loan Lender or Term Loan Lenders
(whose participations in a Loan exceed 50 per cent. of
that Loan) that the cost to it or them of obtaining
matching deposits in the Hong Kong Interbank Market would
be in excess of HIBOR for the relevant Interest Period.
12.2 Alternative basis of interest or funding
12.2.1 If a Market Disruption Event occurs and the Agent or the Borrower
so requires, the Agent and the Borrower shall enter into
negotiations (for a period of not more than thirty (30) days)
with a view to agreeing a substitute basis for determining the
rate of interest.
12.2.2 Any alternative basis agreed pursuant to paragraph 12.2.1 above
shall, with the prior consent of all the Term Loan Lenders and
the Borrower, be binding on all Parties.
13. FEES
13.1 Term Loan Commitment fee
The Borrower shall pay to the Agent (for the account of each Term Loan
Lender) a non-refundable fee calculated as follows:
13.1.1 for the first three Months period after the Agreement Date (the
"First Term Loan Available Period"), the commitment fee shall be
waived;
13.1.2 for the following three Months period after the end of the First
Term Loan Available Period (the "Second Term Loan Available
Period"), at the rate of 0.1% per annum on each Term Loan
Lender's Available Term Loan Commitment; and
13.1.3 for the period from the end of the Second Term Loan Available
Period to the date of expiry of the Availability Period, at the
rate of 0.4% per annum on each Term Loan Lender's Available Term
Loan Commitment.
13.2 SBLC Commitment Fee
The Borrower shall pay to the Agent (for the account of each SBLC
Lender) a non-refundable fee calculated as follows:
13.2.1 for the first Month after the Agreement Date (the "First SBLC
Available Period"), the commitment fee shall be waived;
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13.2.2 for the following five Months period after the end of the First
SBLC Available Period (the "Second SBLC Available Period"), at
the rate of 0.1% per annum on each SBLC Lender's Available SBLC
Commitment; and
13.2.3 for the period from the end of the Second SBLC Available Period
to the date of expiry of the Availability Period, at the rate of
0.4% per annum on each SBLC Lender's Available SBLC Commitment.
13.3 Payment of Commitment Fee
13.3.1 The commitment fee under Clause 13.1 (Term Loan Commitment Fee)
and 13.2 (SBLC Commitment Fee) above shall accrue after the
Agreement Date until the date of expiry of the Availability
Period.
13.3.2 The accrued commitment fee under Clause 13.1 (Term Loan
Commitment Fee) and 13.2 (SBLC Commitment Fee) is payable on the
date of expiry of the Availability Period and on the cancelled
amount of the relevant SBLC Lender's Commitment at the time the
cancellation is effective.
13.4 Arrangement fee
The Borrower shall pay to the Co-ordinating Arranger (for its own
account) a non-refundable arrangement fee in the amount and at the time
agreed in the Arrangement Fee Letter.
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SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
14. TAX GROSS-UP AND INDEMNITIES
14.1 Definitions
14.1.1 In this Clause 14:
"Protected Party" means a Finance Party which is or will be, for
or on account of Tax, subject to any liability or required to
make any payment in relation to a sum received or receivable (or
any sum deemed for the purposes of Tax to be received or
receivable) under a Finance Document.
"Tax Credit" means a credit against, relief or remission for, or
repayment of any Tax.
"Tax Deduction" means a deduction or withholding for or on
account of Tax from a payment under a Finance Document.
"Tax Payment" means an increased payment made by the Borrower to
a Finance Party under Clause 14.2 (Tax gross- up) or a payment
under Clause 14.3 (Tax indemnity).
14.1.2 In this Clause 14 a reference to "determines" or "determined"
means a determination made in the absolute discretion of the
person making the determination (acting reasonably).
14.2 Tax gross-up
14.2.1 The Borrower shall make all payments to be made by it under this
Agreement without any Tax Deduction, unless a Tax Deduction is
required by law.
14.2.2 The Borrower or a Lender shall promptly upon becoming aware that
the Borrower must make a Tax Deduction (or that there is any
change in the rate or the basis of a Tax Deduction) notify the
Agent accordingly. If the Agent receives such notification from a
Lender it shall notify the Borrower.
14.2.3 If a Tax Deduction is required by law to be made by the Borrower
the amount of the payment due from the Borrower shall be
increased to an amount which (after making any Tax Deduction)
leaves an amount equal to the payment which would have been due
if no Tax Deduction had been required.
14.2.4 If the Borrower is required by law to make a Tax Deduction, the
Borrower shall make that Tax Deduction and any payment required
in connection with that Tax Deduction within the time allowed and
in the minimum amount required by law.
14.2.5 Within thirty (30) days of making either a Tax Deduction or any
payment required in connection with that Tax Deduction, the
Borrower shall deliver to the Agent for the Finance Party
entitled to the payment evidence reasonably satisfactory to that
Finance Party that the Tax Deduction has been made or (as
applicable) any appropriate payment paid to the relevant taxing
authority.
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14.3 Tax indemnity
14.3.1 The Borrower shall (within three (3) Business Days of demand by
the Agent) pay to a Protected Party an amount equal to the loss,
liability or cost which that Protected Party determines will be
or has been (directly or indirectly) suffered for or on account
of Tax by that Protected Party.
14.3.2 Clause 14.3.1 above shall not apply with respect to any Tax
assessed on a Finance Party:
(A) under the law of the jurisdiction in which that Finance
Party is incorporated or, if different, the jurisdiction
(or jurisdictions) in which that Finance Party is treated
as resident for tax purposes; or
(B) under the law of the jurisdiction in which that Finance
Party's Facility Office is located in respect of amounts
received or receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net
income received or receivable (but not any sum deemed to be
received or receivable) by that Finance Party.
14.3.3 A Protected Party making, or intending to make a claim pursuant
to Clause 14.3.1 above shall promptly notify the Agent of the
event which will give, or has given, rise to the claim, following
which the Agent shall notify the Borrower.
14.3.4 A Protected Party shall, on receiving a payment from the Borrower
under this Clause 14.3 notify the Agent.
14.4 Tax Credit
If the Borrower makes a Tax Payment and the relevant Finance Party
determines, in its sole discretion, that:
14.4.1 a Tax Credit is attributable to that Tax Payment; and
14.4.2 that Finance Party has obtained, utilised and retained that Tax
Credit,
the Finance Party shall make a reasonable endeavour and to the extent
that it can do so without prejudice to the retention of such Tax Credit
pay an amount to the Borrower which that Finance Party determines, in
its sole discretion, will leave it (after that payment) in the same
after-Tax position as it would have been in had the Tax Payment not been
made by the Borrower.
15. INCREASED COSTS
15.1 Increased costs
15.1.1 Subject to Clause 15.3 (Exceptions) the Borrower shall, within
three (3) Business Days of a demand by the Agent, pay for the
account of a Finance Party the amount of any Increased Costs (as
defined in Clause 15.1.2) incurred by that Finance Party or any
of its Affiliates as a result of any change in law or in its
interpretation or administration and/or compliance with any
request from
30
or requirement of any central bank or other fiscal, revenue,
monetary or other authority (with the requests or requirements of
which the relevant Finance Party is accustomed to comply, whether
or not such requests or requirements have the force of law) or
any change thereto in each case occurring after the Agreement
Date.
15.1.2 In this Agreement "Increased Costs" means:
(A) a reduction in the rate of return from the Facility or on
a Finance Party's (or its Affiliate's) overall capital;
(B) an additional or increased cost; or
(C) a reduction of any amount due and payable under any
Finance Document,
which is incurred or suffered by a Finance Party or any of its
Affiliates to the extent that it is attributable to that Finance
Party having entered into the Finance Documents or funding or
performing its obligations under any Finance Document.
15.2 Increased cost claims
15.2.1 A Finance Party intending to make a claim pursuant to Clause 15.1
(Increased costs) shall notify the Agent of the event giving rise
to the claim, following which the Agent shall promptly notify the
Borrower.
15.2.2 Each Finance Party shall, as soon as practicable after a demand
by the Agent, provide a certificate confirming the amount of its
Increased Costs.
15.3 Exceptions
Clause 15.1 (Increased costs) does not apply to the extent any Increased
Cost is:
15.3.1 attributable to a deduction or withholding for or on account of
Tax from payment under a Finance Document;
15.3.2 compensated for by Clause 14.3 (Tax indemnity); or
15.3.3 attributable to the willful breach by the relevant Finance Party
or its Affiliates of any law or regulation.
16. OTHER INDEMNITIES
16.1 Currency indemnity
16.1.1 If any sum due from an Obligor under the Finance Documents (a
"Sum"), or any order, judgment or award given or made in relation
to a Sum, has to be converted from the currency (the "First
Currency") in which that Sum is payable into another currency
(the "Second Currency") for the purpose of:
(A) making or filing a claim or proof against that Obligor;
(B) obtaining or enforcing an order, judgment or award in
relation to any litigation or arbitration proceedings,
31
that Obligor shall as an independent obligation, within three (3)
Business Days of demand, indemnify each Finance Party to whom
that Sum is due against any cost, loss or liability arising out
of or as a result of the conversion including any discrepancy
between (1) the rate of exchange used to convert that Sum from
the First Currency into the Second Currency and (2) the rate or
rates of exchange available to that person at the time of its
receipt of that Sum.
16.1.2 The Borrower waives any right it may have in any jurisdiction to
pay any amount under the Finance Documents in a currency or
currency unit other than that in which it is expressed to be
payable.
16.2 Other indemnities
The Borrower shall, within three (3) Business Days of demand, indemnify
each Lender against any cost, loss or liability incurred by that Lender
as a result of:
16.2.1 the occurrence of any Event of Default;
16.2.2 a failure by an Obligor to pay any amount due under a Finance
Document on its due date, including without limitation, any cost,
loss or liability arising as a result of Clause 29 (Sharing among
the Lenders);
16.2.3 funding, or making arrangements to fund, its participation in a
Loan requested by the Borrower in a Drawdown Request but not made
by reason of the operation of any one or more of the provisions
of this Agreement (other than by reason of default or negligence
by that Lender alone); or
16.2.4 a Loan (or part of a Loan) not being prepaid in accordance with a
notice of prepayment given by the Borrower.
16.3 Indemnity to the Agent
The Borrower shall promptly indemnify the Agent against any cost, loss
or liability incurred by the Agent (acting reasonably) as a result of:
16.3.1 a Default or perceived Default; or
16.3.2 acting or relying on any notice, request or instruction which it
reasonably believes to be genuine, correct and appropriately
authorised.
16.4 Break costs
16.4.1 The Borrower shall within three (3) Business Days of demand by a
Finance Party, pay to that Finance Party its Break Costs
attributable to all or any part of a Loan or Unpaid Sum being
paid by the Borrower on a day other than the last day of an
Interest Period for that Loan or Unpaid Sum.
16.4.2 Each Lender shall, as soon as reasonably practicable after a
demand by the Agent, provide a certificate confirming the amount
of its Break Costs for any Interest Period in which they accrue.
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17. MITIGATION BY THE FINANCE PARTIES
17.1 Mitigation
17.1.1 Each Finance Party shall, in consultation with the Borrower, take
all reasonable steps to mitigate any circumstances which arise
and which would result in any amount becoming payable under, or
cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 14
(Tax gross-up and indemnities) or Clause 15 (Increased costs)
including (but not limited to) transferring its rights and
obligations under the Finance Documents to another Affiliate or
Facility Office.
17.1.2 Clause 17.1.1 above does not in any way limit the obligations of
the Borrower under the Finance Documents.
17.2 Limitation of liability
17.2.1 The Borrower shall indemnify each Finance Party for all costs and
expenses reasonably incurred by that Finance Party as a result of
steps taken by it under Clause 17.1 (Mitigation).
17.2.2 A Finance Party is not obliged to take any steps under Clause
17.1 (Mitigation) if, in the opinion of that Finance Party
(acting reasonably), to do so might be prejudicial to it.
18. EXPENSES
18.1 The Borrower shall promptly on demand pay the Agent and the
Co-ordinating Arranger the amount of all costs and expenses (including
legal fees) reasonably incurred by any of them in connection with the
negotiation, preparation, documentation, printing and execution of:
18.1.1 this Agreement and any other documents referred to in this
Agreement; and
18.1.2 any other Finance Documents executed after the Agreement Date.
19. COSTS
19.1 Amendment costs
If an Obligor requests an amendment, waiver or consent, such Obligor
shall, within three (3) Business Days of demand, reimburse the Agent for
the amount of all costs and expenses (including legal fees) reasonably
incurred by the Agent in responding to, evaluating, negotiating or
complying with that request or requirement.
19.2 Enforcement costs
The Borrower shall, within three (3) Business Days of demand, pay to
each Finance Party the amount of all costs and expenses (including legal
fees) incurred by that Finance Party in connection with the enforcement
of, or the preservation of any rights under, any Finance Document.
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SECTION 7
GUARANTEE
20. GUARANTEE AND INDEMNITY
20.1 Guarantee and indemnity
The Guarantor irrevocably and unconditionally:
20.1.1 guarantees to each Finance Party punctual performance by the
Borrower of all the Borrower's obligations under the Finance
Documents;
20.1.2 undertakes with each Finance Party that whenever the Borrower
does not pay any amount when due under or in connection with any
Finance Document, the Guarantor shall immediately on demand pay
that amount as if it was the principal obligor; and
20.1.3 indemnifies each Finance Party immediately on demand against any
cost, loss or liability suffered by that Finance Party if any
obligation guaranteed by it is or becomes unenforceable, invalid
or illegal. The amount of the cost, loss or liability shall be
equal to the amount which that Finance Party would otherwise have
been entitled to recover.
20.2 Continuing guarantee
This guarantee is a continuing guarantee and will extend to the ultimate
balance of sums payable by the Borrower under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
20.3 Reinstatement
If any payment by the Borrower or any discharge given by a Finance Party
(whether in respect of the obligations of the Borrower or any security
for those obligations or otherwise) is avoided or reduced as a result of
insolvency or any similar event:
20.3.1 the liability of the Guarantor shall continue as if the payment,
discharge, avoidance or reduction had not occurred; and
20.3.2 each Finance Party shall be entitled to recover the value or
amount of that security or payment from the Guarantor, as if the
payment, discharge, avoidance or reduction had not occurred.
20.4 Waiver of defences
The obligations of the Guarantor under this Clause 20 will not be
affected by an act, omission, matter or thing which, but for this
Clause, would reduce, release or prejudice any of its obligations under
this Clause 20 (without limitation and whether or not known to it or any
Finance Party including:
20.4.1 any time, waiver or consent granted to, or composition with, the
Borrower or other person;
20.4.2 the release of the Borrower or any other person under the terms
of any composition or arrangement with any creditor of any member
of the Group;
34
20.4.3 the taking, variation, compromise, exchange, renewal or release
of, or refusal or neglect to perfect, take up or enforce, any
rights against, or security over assets of, the Borrower or other
person or any non-presentation or non-observance of any formality
or other requirement in respect of any instrument or any failure
to realise the full value of any security;
20.4.4 any incapacity or lack of power, authority or legal personality
of or dissolution or change in the members or status of the
Borrower or any other person;
20.4.5 any amendment (however fundamental) or replacement of a Finance
Document or any other document or security;
20.4.6 any unenforceability, illegality or invalidity of any obligation
of any person under any Finance Document or any other document or
security; or
20.4.7 any insolvency or similar proceedings.
20.5 Immediate recourse
The Guarantor waives any right it may have of first requiring any
Finance Party (or any trustee or agent on its behalf) to proceed against
or enforce any other rights or security or claim payment from any person
before claiming from the Guarantor under this Clause 20. This waiver
applies irrespective of any law or any provision of a Finance Document
to the contrary.
20.6 Appropriations
Until all amounts which may be or become payable by the Obligors under
or in connection with the Finance Documents have been irrevocably paid
in full, each Finance Party (or any trustee or agent on its behalf) may:
20.6.1 refrain from applying or enforcing any other moneys, security or
rights held or received by that Finance Party (or any trustee or
agent on its behalf) in respect of those amounts, or apply and
enforce the same in such manner and order as it sees fit (whether
against those amounts or otherwise) and the Guarantor shall not
be entitled to the benefit of the same; and
20.6.2 hold in an interest-bearing suspense account any moneys received
from the Guarantor or on account of the Guarantor's liability
under this Clause 20.
20.7 Deferral of the Guarantor's rights
Until all amounts which may be or become payable by the Obligors under
or in connection with the Finance Documents have been irrevocably paid
in full and unless the Agent otherwise directs, the Guarantor will not
exercise any rights which it may have by reason of performance by it of
its obligations under the Finance Documents:
20.7.1 to be indemnified by the Borrower; and/or
20.7.2 to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
under the Finance Documents or of any other guarantee or security
taken pursuant to, or in connection with, the Finance Documents
by any Finance Party.
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20.8 Additional security
This guarantee is in addition to and is not in any way prejudiced by any
other guarantee or security now or subsequently held by any Finance
Party.
36
SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
21. REPRESENTATIONS
Each Obligor (or, in the case of Clause 21.16 (Negative Pledge), each
Obligor other than the Guarantor) makes the representations and
warranties set out in this Clause 21 to each Finance Party on the
Agreement Date.
21.1 Status
21.1.1 It is a corporation, duly incorporated and validly existing under
the law of jurisdiction of its incorporation.
21.1.2 It has the power to own its assets and carry on its business as
it is being conducted.
21.2 Binding obligations
The obligations expressed to be assumed by it in each Finance Document
are, subject to any general principles of law limiting its obligations
which are specifically referred to in any legal opinion delivered
pursuant to Clause 4 (Conditions of Drawdown), legal, valid, binding and
enforceable obligations.
21.3 Non-conflict with other obligations
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents do not and will not conflict
with:
21.3.1 any law or regulation applicable to it;
21.3.2 its constitutional documents; or
21.3.3 any agreement or instrument binding upon it or any of its assets.
21.4 Power and authority
It has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery
of, the Finance Documents to which it is a party and the transactions
contemplated by those Finance Documents.
21.5 Authorizations
All Authorizations required or desirable:
21.5.1 to enable it lawfully to enter into, exercise its rights and
comply with its obligations in the Finance Documents to which it
is a party; and
21.5.2 to make the Finance Documents to which it is a party admissible
in evidence in the jurisdiction of its incorporation,
have been obtained or effected and are in full force and effect.
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21.6 Governing law and enforcement
Subject as referred to in the legal opinions delivered pursuant to
Clause 4 (Conditions of Drawdown):
21.6.1 the choice of Hong Kong law as the governing law of the Finance
Documents to which it is party will be recognised and enforced in
its jurisdiction of incorporation;
21.6.2 any judgment obtained in Hong Kong in relation to a Finance
Document to which it is a party will be recognised and enforced
in its jurisdiction of incorporation.
21.7 Deduction of Tax
It is not required under the law of its jurisdiction of incorporation to
make any deduction for or on account of Tax from any payment it may make
under any Finance Document.
21.8 No filing or stamp taxes
Other than the registration of the Debenture and the Share Charge (and
the payment of registration fees in connection therewith) referred to in
the legal opinions delivered pursuant to Clause 4 (Conditions of
Drawdown), under the law of its jurisdiction of incorporation it is not
necessary that the Finance Documents to which it is party be filed,
recorded or enrolled with any court or other authority in that
jurisdiction or that any stamp, registration or similar tax be paid on
or in relation to the Finance Documents to which it is party or the
transactions contemplated by the Finance Documents to which it is party.
21.9 No default
21.9.1 No Default is continuing or might reasonably be expected to
result from the making of any Drawdown or any issue of SBLCs.
21.9.2 No other event or circumstance is outstanding which constitutes a
default under any other agreement or instrument which is binding
on it, (and in the case of the Guarantor, the Guarantor and any
of its Major Subsidiaries) or to which its, (and in the case of
the Guarantor, the Guarantor and its Major Subsidiaries') assets
are subject which might have a Material Adverse Effect.
21.10 Financial statements
The audited financial statements (including a profit and loss account,
balance sheet and any other financial statements, required by the laws
of Hong Kong) of an Obligor most recently delivered to the Agent have
been prepared in accordance with accounting principles and practices
generally accepted in Hong Kong consistently applied and have been
prepared, examined, audited, reported on and approved in accordance with
all procedures required by its constitutional documents and the laws of
Hong Kong and there has been no material adverse change in the financial
condition of such Obligor since the date to which those accounts were
drawn up.
38
21.11 No material adverse change
To the best of its knowledge and belief, there has been no material
adverse change in its financial position (or, in the case of the
Guarantor, in the consolidated financial position of itself and its
Major Subsidiaries) from that set forth in the financial statements
referred to in Clause 21.10 (Financial statements).
21.12 Pari passu ranking
Its payment obligations under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying
to companies generally.
21.13 No proceedings pending or threatened
No litigation, arbitration or administrative proceedings of or before
any court, arbitral body or agency which, if adversely determined, might
reasonably be expected to have a Material Adverse Effect have (to the
best of its knowledge and belief) been started or threatened against it
(and in the case of the Guarantor, the Guarantor and any of its Major
Subsidiaries).
21.14 Insolvency
It has not taken any corporate action and no other steps have been taken
or legal proceedings have been started or threatened against it for its
winding up, dissolution, administration or reorganisation or for the
appointment of a receiver, liquidator, administrator, trustee or similar
officer of it or of any or all of its assets or revenues.
21.15 Ownership
It is, or is a wholly-owned subsidiary (either directly or indirectly)
of, the Guarantor.
21.16 Negative Pledge
Save for the Security permitted pursuant to paragraph 23.3.2 of Clause
23.3 (Negative Pledge), no Security exists over any of its present or
future assets, rights or revenues.
21.17 No immunity
Neither it nor any of its assets is entitled to immunity on the grounds
of sovereignty or otherwise from any legal action or proceedings (which
shall include, without limitation, suit, attachment prior to judgment,
execution or other enforcement) in respect of its liabilities under the
Finance Documents.
21.18 Repetition
The Repeating Representations are deemed to be made by each Obligor by
reference to the facts and circumstances then existing on the date of
each Drawdown Request, the date of each SBLC Application, the date of
each SBLC Amendment Application and the first day of each Interest
Period, except (i) in the case of the representation and warranty set
out in Clause 21.10 (Financial statements) which shall be deemed to be
made with reference to the most recent financial statements delivered to
the Agent under Clause 22 (Information Undertakings) and (ii) in the
case of Clause 21.11 (No Material Adverse Change) which is deemed to be
made by each Obligor by reference
39
to the facts and circumstances then existing on the date of each
Drawdown Request, the date of each SBLC Application and date of each
SBLC Amendment Application only.
22. INFORMATION UNDERTAKINGS
The undertakings in this Clause 22 shall remain in force from the
Agreement Date for so long as any amount is outstanding under the
Finance Documents or any Commitment is in force.
22.1 Financial statements of the Guarantor
The Guarantor shall supply to the Agent in sufficient copies for all
Lenders:
22.1.1 as soon as the same become available, but in any event within 180
days after the end of each of its financial years its audited
consolidated financial statements for that financial year; and
22.1.2 as soon as the same become available, but in any event within 120
days after the end of each of its financial half year interim
reports for that financial half year.
22.2 Financial Statements of the Obligors
Each of the Obligors (other than the Guarantor) shall supply to the
Agent in sufficient copies for all the Lenders as soon as the same shall
become available, but in any event within 180 days after the end of its
financial years its financial statements for that financial year.
22.3 Information: miscellaneous
Each Obligor shall supply to the Agent (in sufficient copies for each of
the Lenders, if the Agent so requests):
22.3.1 all documents dispatched by that Obligor to its creditors
generally (and, in the case of the Guarantor, to its shareholders
(or any class of them)) at the same time as they are dispatched;
22.3.2 promptly upon becoming aware of them, the details of any
litigation, arbitration or administrative proceedings which are
current, threatened or pending against it, (and in the case of
the Guarantor, the Guarantor and any of its Major Subsidiaries),
and which might, if adversely determined, have a Material Adverse
Effect; and
22.3.3 promptly, such further information regarding the financial
condition, business and operations of it (and in the case of the
Guarantor, the Guarantor and any of its Major Subsidiaries) as
any Finance Party (through the Agent) may reasonably request.
22.4 Notification of default
22.4.1 Each Obligor shall notify the Agent of any Default or breach of
any representations and warranties under Clause 21
(Representations) (and the steps, if any, being taken to remedy
it) promptly upon becoming aware of its
40
occurrence (unless that Obligor is aware that a notification has
already been provided by another Obligor).
22.4.2 Promptly upon a request by the Agent, an Obligor shall supply to
the Agent a certificate signed by one of its directors or senior
officers on its behalf certifying that no Default is continuing
(or if a Default is continuing, specifying the Default and the
steps, if any, being taken to remedy it).
22.5 Leasing Account report
The Guarantor shall procure that the RMB Borrower supplies to the Agent
a semi-annual leasing account report in substantially the form of
Schedule 10 at the end of June and December of each year, in a form with
details reasonably satisfactory to the Agent within 45 days after each
half-yearly end and which shall:
22.5.1 confirm that (a) all rental income, sales of proceeds and other
earnings from the PRC Properties which is owned by the RMB
Borrower have been deposited in the Charged Account and (b) all
funds in the Charged Account have been used in accordance with
the terms of the Account Charge and the other Finance Documents;
and
22.5.2 give details of any sale of the PRC Properties and any other
information concerning the PRC Properties and/or Charged Account
as the Agent shall reasonably request.
22.6 Lease Agreement
On the date of this Agreement and on an annual basis thereafter, the
Guarantor shall procure that the RMB Borrower supplies to the Agent the
standard form lease agreement and the projected rental price for the PRC
Properties which is owned by the RMB Borrower for the Agent's consent
(such consent shall not be unreasonably withheld or delayed).
23. GENERAL UNDERTAKINGS
The undertakings in this Clause 23 remain in force from the Agreement
Date for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
23.1 Authorizations
Each Obligor shall promptly:
23.1.1 obtain, comply with and do all that is necessary to maintain in
full force and effect; and
23.1.2 supply certified copies to the Agent of,
any Authorization required under any law or regulation of its
jurisdiction of incorporation or its constitutional documents to enable
it to perform its obligations under the Finance Documents and to ensure
the legality, validity, enforceability or admissibility in evidence in
the jurisdiction of its incorporation of any Finance Document.
41
23.2 Compliance with laws
Each Obligor shall comply in all respects with all laws to which it may
be subject, if failure to comply would impair its ability to perform its
obligations under the Finance Documents.
23.3 Negative pledge
23.3.1 Each Obligor (other than the Guarantor) shall not (and shall
ensure that the RMB Borrower shall not) create or permit to
subsist any Security over any of its assets.
23.3.2 Paragraph 23.3.1 does not apply to:
(A) any lien arising by operation of law and in the ordinary
course of business or in respect of Taxes;
(B) any Security approved by the Agent (acting on the
instruction of the Majority Lenders); and
(C) any Security over the PRC Properties existing as at the
Agreement Date.
23.4 Disposals
23.4.1 No Obligor shall (and an Obligor shall ensure that no other
member of the Group will), without the prior written consent of
the Majority Lenders, enter into a single transaction or a series
of transactions (whether related or not) and whether voluntary or
involuntary to sell, lease, transfer or otherwise dispose of any
business, asset, or revenue.
23.4.2 Paragraph 23.4.1 above does not apply (1) to the Guarantor and
(2) to any sale, lease, transfer or other disposal made in the
ordinary course of business of the disposing entity or to any
Permitted Disposal.
23.5 Merger
No Obligor (other than the Guarantor) shall without the prior written
approval of the Agent (acting on the instructions of the Majority
Lenders), (and shall ensure that no other member of the Group will),
enter into any amalgamation, demerger, merger or corporate
reconstruction.
23.6 Change of business
No Obligor shall make any change to the general nature of its business
from that carried on at the Agreement Date.
23.7 Ownership
The Guarantor shall ensure that it shall remain the direct or indirect
beneficial owner (1) of 100% of the issued share capital of each of the
Borrower, the Chargor and Gain Score and (2) of at least 75% of the
registered capital of the RMB Borrower (and to have a 100% beneficial
interest in the RMB Borrower).
42
23.8 Loan to Value Ratio
The Borrower undertakes that if at any time the Loan to Value Ratio
exceeds sixty-five per cent (65%) it shall promptly notify the Agent and
shall within 30 days of such notification, maintain the Loan to Value
Ratio at fifty per cent (50%) by either (i) repaying sufficient amounts
outstanding under the Term Loan Facility or (ii) providing further
security or making other arrangements (each in form and substance
acceptable to the Lenders (acting reasonably)). For the purposes of
determining the Loan to Value Ratio and at the Agent's reasonable
request, the Borrower undertakes at its own cost once per calendar year
to arrange for a full appraisal report of the PRC Properties and any
other security acceptable to the Agent for the purposes of the Loan to
Value Ratio. The Borrower may consent (such consent not to be
unreasonably withheld or delayed) to any request by the Agent for an
additional valuation report to be provided.
23.9 RMB Borrower
Each of the Guarantor and Gain Score shall procure that the RMB Borrower
shall comply with its obligations under the RMB Facility, and the
Guarantor shall procure that each of the other Obligors shall comply
with its obligations under the Facilities.
23.10 Subordination
23.10.1 Each of the Obligors agrees that any Financial Indebtedness
extended by it to any other member of the Group shall be
subordinated in all respects to the obligations owed by the
Obligors to the Lenders under the Facilities.
23.10.2 The undertaking in paragraph 23.10.1 above shall not apply in
respect of any Financial Indebtedness extended in relation to (1)
expenses provided that the reimbursement of such expenses do not
exceed an aggregated amount of HK$20 million (or its equivalent
in any other currency or currencies) per year and (2) the
expenses payable under Clause 13 (Fees) and Clause 18 (Expenses).
23.11 Release of security
23.11.1 The Guarantor undertakes to procure that the RMB Borrower shall
not release or discharge any of the Mortgages or the Account
Charge without the prior written consent of the Majority Lenders
(such consent not to be unreasonably withheld or delayed).
23.11.2 Paragraph 23.11.1 does not apply to any Mortgage which is to be
released to permit the sale of any part of the PRC Properties
pursuant to the terms of the Finance Documents.
23.12 Preservation of assets
Each of the Obligors undertakes to procure that the RMB Borrower shall
not dispose of any of the PRC Properties (other than Permitted
Disposals), purchase any additional assets (other than Permitted
Purchases) or incur any Financial Indebtedness or liability (other than
Permitted Indebtedness) without the prior written consent of the
Majority Lenders (not to be unreasonably withheld or delayed).
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23.13 Release of shares
Except with the prior written consent of the Majority Lenders (not to be
unreasonably withheld or delayed), Gain Score will not permit any of its
rights under the co-operative joint venture contract in the RMB Borrower
to be altered or transferred to a third party in any respect or to
increase the registered capital of the RMB Borrower.
23.14 Loans and Guarantees
Gain Score and the RMB Borrower shall not make any loans, grant any
credit or give any guarantee or indemnity to or for the benefit of any
person other than in the ordinary course of business and to its
shareholders unless it has received prior written consent of the
Majority Lenders.
24. EVENTS OF DEFAULT
Each of the events or circumstances set out in Clause 24 (other than
Clause 24.16 (Acceleration)) is an Event of Default.
24.1 Non-payment
An Obligor does not pay on the due date any amount payable pursuant to a
Finance Document at the place at and in the currency in which it is
expressed to be payable unless:
24.1.1 its failure to pay is caused by administrative or technical
error; and
24.1.2 payment is made within three (3) Business Days of its due date.
24.2 Specific Undertakings
An Obligor fails to comply with Clause 23.3 (Negative Pledge), Clause
23.4 (Disposals), Clause 23.5 (Merger) or Clause 23.7 (Ownership).
24.3 Other obligations
24.3.1 An Obligor does not comply with any provision of the Finance
Documents (other than those referred to in Clause 24.1
(Non-payment) and Clause 24.2 (Specific Undertakings)).
24.3.2 No Event of Default shall occur under Clause 24.3.1 above unless
the circumstances underlying such Event of Default are:
(A) not (in the reasonable opinion of the Agent) capable of
being remedied; or
(B) not remedied within 20 Business Days of the Agent giving
written notice to the relevant Obligor requiring it to
remedy (or, If earlier, within 20 Business Days of the
date on which the Borrower first became aware of such
breach).
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24.4 Misrepresentation
Any representation or statement made or deemed to be made by an Obligor
in the Finance Documents or any other document delivered by or on behalf
of any Obligor under or in connection with any Finance Document is or
proves to have been incorrect or misleading in any material respect when
made or deemed to be made unless the underlying circumstances (if in the
Agent's reasonable opinion capable of remedy) are remedied within 20
Business Days of the Agent giving written notice to the relevant Obligor
requiring it to remedy or, if earlier, within 20 Business Days of the
date on which such Obligor became aware of such breach, and its effect
is such as to be reasonably likely (in the reasonable opinion of the
Agent) to give rise to a Material Adverse Effect.
24.5 Cross default
24.5.1 Any Financial Indebtedness of the Guarantor or any of its Major
Subsidiaries is not paid when due nor within any originally
applicable grace period.
24.5.2 Any Financial Indebtedness of the Guarantor or any of its Major
Subsidiaries is declared to be or otherwise becomes due and
payable prior to its specified maturity as a result of an event
of default (however described).
24.5.3 Any commitment for any Financial Indebtedness of the Guarantor or
any Major Subsidiary of the Guarantor is cancelled or suspended
by a creditor of the Guarantor or any Major Subsidiary of the
Guarantor as a result of an event of default (however described).
24.5.4 Any creditor of the Guarantor or any Major Subsidiary of the
Guarantor becomes entitled to declare any Financial Indebtedness
of the Guarantor or such Major Subsidiary due and payable prior
to its specified maturity as a result of an event of default
(however described)
provided that (i) it shall not constitute an Event of Default under
Clauses 24.5.1 to 24.5.4 in the case of any member of the Group (if, the
aggregate amount of all such Financial Indebtedness in relation to such
member of the Group is less than HK$20 million (or, in the case of the
Guarantor, or a Major Subsidiary of the Guarantor, US$30,000,000) (or
its equivalent in any other currency or currencies)) and (ii) this
Clause 24.5 shall not apply to the Financial Indebtedness of the RMB
Borrower.
24.6 Insolvency
24.6.1 The Guarantor or any of its Major Subsidiaries is unable or
admits inability to pay its debts as they fall due, suspends
making payments on any of its debts or, by reason of actual or
anticipated financial difficulties, commences negotiations with
one or more of its creditors with a view to rescheduling any of
its indebtedness.
24.6.2 A moratorium is declared in respect of any indebtedness of the
Guarantor or any of its Major Subsidiaries.
45
24.7 Insolvency proceedings
Any corporate action, legal proceedings or other procedure or step is
taken in relation to:
24.7.1 the suspension of payments, a moratorium of any indebtedness,
winding-up, dissolution, administration or reorganization (by way
of voluntary arrangement, scheme of arrangement or otherwise) of
the Guarantor or any of its Major Subsidiaries other than a
solvent liquidation or reorganisation of the Guarantor or a Major
Subsidiary of the Guarantor;
24.7.2 a composition, assignment or arrangement with any creditor of the
Guarantor or any of its Major Subsidiaries;
24.7.3 the appointment of a liquidator (other than in respect of a
solvent liquidation of the Guarantor or a Major Subsidiary of the
Guarantor), receiver, administrator, compulsory manager or other
similar officer in respect of any member of the Group or any of
its assets (save for any such person appointed by the RMB
Borrower in respect of indebtedness under the RMB Facility); or
24.7.4 enforcement of any Security over any assets of any member of the
Group (provided that it shall not constitute an Event of Default
if such Security secures (or the breach giving rise to such
enforcement is an amount of) Financial Indebtedness or commitment
for Financial Indebtedness which is less than HK$20,000,000 (or,
in the case of the Guarantor, US$30,000,000) or is Security for
the RMB Facility),
or any analogous procedure or step is taken in any jurisdiction.
24.8 Creditors' process
Any expropriation, attachment, sequestration, distress or execution
affects any asset or assets of a member of the Group (which is to
recover assets with a book value greater than HK$20,000,000) or, in the
case of the Guarantor, US$30,000,000 (in each case, or its equivalent in
any other currency or currencies)) (save for any such action or event by
the RMB Borrower in respect of indebtedness under the RMB Facility) and
is not discharged within ten (10) Business Days.
24.9 Ownership by the Guarantor
The Guarantor ceases to be the direct or indirect beneficial owner (1)
of 100% of the issued share capital of each of the Borrower, the Chargor
or Gain Score or (2) of 75% of the registered capital of the RMB
Borrower (or to have a 100% beneficial interest in the RMB Borrower).
24.10 Unlawfulness
It is or becomes unlawful or illegal for an Obligor to perform any of
its obligations under the Finance Documents and such non-performance has
a Material Adverse Effect.
46
24.11 Repudiation
An Obligor repudiates a Finance Document or evidences an intention to
repudiate a Finance Document where to do so would have a Material
Adverse Effect.
24.12 Material adverse change
Any event or series of events occurs which has a Material Adverse
Effect.
24.13 Government intervention
All or a material part of the undertakings, assets, rights or revenues
of or shares or other ownership interests of any member of the Group are
seized, nationalised, expropriated or compulsorily acquired by or under
the authority of any Government.
24.14 Cessation or change of business
24.14.1 Any member of the Group suspends or ceases or threatens to
suspend or cease to carry on all or a substantial part of its
respective business.
24.14.2 The general nature of the business of any member of the Group
(other than the Guarantor) changes substantially from that of the
Agreement Date.
24.15 Guarantee
The guarantee of the Guarantor under Clause 20 (Guarantee and Indemnity)
is not effective or is alleged by an Obligor to be ineffective for any
reason.
24.16 Acceleration
On and at any time after the occurrence of an Event of Default which is
continuing the Agent may, and shall if so directed by the Majority
Lenders, by notice to the Borrower:
24.16.1 cancel the Total Commitments whereupon they shall immediately be
cancelled;
24.16.2 declare that all or part of the Loans, together with accrued
interest, and all other amounts accrued under the Finance
Documents be immediately due and payable, whereupon they shall
become immediately due and payable; and/or
24.16.3 declare that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand by the
Agent on the instructions of the Majority Lenders.
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SECTION 9
CHANGES TO PARTIES
25. CHANGES TO THE LENDERS
25.1 Assignments and transfers by the Lenders
Subject to this Clause 25, a Lender (the "Existing Lender") may:
25.1.1 assign any of its rights under HKD Finance Documents; or
25.1.2 transfer by novation any of its rights and obligations under HKD
Finance Documents,
to any other bank or financial institution (the "New Lender").
25.2 Conditions of assignment or transfer
25.2.1 The consent of the Borrower is required for an assignment or
transfer by a Lender, unless the assignment or transfer is to
another bank or financial institution or an Affiliate of a
Lender.
25.2.2 The consent of the Borrower to an assignment or transfer must not
be unreasonably withheld or delayed. The Borrower will be deemed
to have given its consent five (5) Business Days after the Lender
has requested it unless consent is expressly refused by the
Borrower within that time.
25.2.3 An assignment will only be effective on receipt by the Agent of
written confirmation from the New Lender (in form and substance
satisfactory to the Agent) that the New Lender will assume the
same obligations to the other Parties as it would have been under
if it was an Original Lender.
25.2.4 A transfer will only be effective if the procedure set out in
Clause 25.5 (Procedure for transfer) is complied with.
25.2.5 If:
(A) a Lender assigns or transfers any of its rights or
obligations under the Finance Documents or any of them or
changes its Facility Office; and
(B) as a result of circumstances existing at the date the
assignment or transfer, the Borrower would be obliged to
make a payment to the New Lender or Lender acting through
its new Facility Office under Clause 14 (Tax gross-up and
indemnities) or Clause 15.1 (Increased costs),
then the New Lender or Lender acting through its new Facility
Office is only entitled to receive payment under those Clauses to
the same extent as the Existing Lender or Lender acting through
its previous Facility Office would have been if the assignment,
transfer or change had not occurred.
25.3 Assignment or transfer fee
The New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Agent (for its own account) a fee of US$500.
48
25.4 Limitation of responsibility of Existing Lenders
25.4.1 Unless expressly agreed to the contrary, an Existing Lender makes
no representation or warranty and assumes no responsibility to a
New Lender for:
(A) the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other
documents;
(B) the financial condition of any Obligor;
(C) the performance and observance by any Obligor of its
obligations under the Finance Documents or any other
documents; or
(D) the accuracy of any statements (whether written or oral)
made in or in connection with any Finance Document or any
other document,
and any representations or warranties implied by law are
excluded.
25.4.2 Each New Lender confirms to the Existing Lender and the other
Finance Parties that it:
(A) has made (and shall continue to make) its own independent
investigation and assessment of the financial condition
and affairs of each Obligor and its related entities in
connection with its participation in this Agreement and
has not relied exclusively on any information provided to
it by the Existing Lender in connection with any Finance
Document; and
(B) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities
whilst any amount is or may be outstanding under the
Finance Documents or any Commitment is in force.
25.4.3 Nothing in any Finance Document obliges an Existing Lender to:
(A) accept a re-transfer from a New Lender of any of the
rights and obligations assigned or transferred under this
Clause 25; or
(B) support any losses directly or indirectly incurred by the
New Lender by reason of the non-performance by any Obligor
of its obligations under the Finance Documents or
otherwise.
25.5 Procedure for transfer
25.5.1 Subject to the conditions set out in Clause 25.2 (Conditions of
assignment or transfer) a transfer is effected in accordance with
paragraph 25.5.2 below when the Agent executes an otherwise duly
completed Transfer Certificate delivered to it by the Existing
Lender and the New Lender. The Agent shall, as soon as reasonably
practicable after receipt by it of a duly completed Transfer
Certificate appearing on its face to comply with the terms of
this Agreement and delivered in accordance with the terms of this
Agreement, execute that Transfer Certificate and deliver a copy
of that Transfer Certificate to the Borrower.
49
25.5.2 On the Transfer Date:
(A) to the extent that in the Transfer Certificate the
Existing Lender seeks to transfer by novation its rights
and obligations under the Finance Documents each of the
Obligors and the Existing Lender shall be released from
further obligations towards one another under the Finance
Documents and their respective rights against one another
shall be cancelled (being the "Discharged Rights and
Obligations");
(B) each of the Obligors and the New Lender shall assume
obligations towards one another and/or acquire rights
against one another which differ from the Discharged
Rights and Obligations only insofar as that Obligor and
the New Lender have assumed and/or acquired the same in
place of that Obligor and the Existing Lender;
(C) the Agent, the Co-ordinating Arranger, the New Lender and
other Lenders shall acquire the same rights and assume the
same obligations between themselves as they would have
acquired and assumed had the New Lender been an Original
Lender with the rights and/or obligations acquired or
assumed by it as a result of the transfer and to that
extent the Agent, the Co-ordinating Arranger and the
Existing Lender shall each be released from further
obligations to each other under this Agreement; and
(D) the New Lender shall become a Party as a "Lender".
25.6 Disclosure of information
A Lender may not disclose any information about any Obligor, the Group
and the Finance Documents to any other person other than any of its
Affiliates and their respective legal or other advisers or any person:
25.6.1 to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under this Agreement;
25.6.2 with (or through) whom that Lender enters into (or may
potentially enter into) any sub-participation in relation to, or
any other transaction under which payments are to be made by
reference to, this Agreement or any Obligor; or
25.6.3 to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation,
and, in relation to paragraphs 25.6.1 and 25.6.2 above, any person to
whom the information is to be given which has entered into a
confidentiality undertaking. However, each Finance Party is entitled to
disclose confidential information:-
(i) in connection with any proceedings arising out of or in
connection with the Finance Documents;
(ii) if required to do so by an order of a court of competent
jurisdiction whether in pursuance of any procedure for
discovering documents or otherwise;
50
(iii) pursuant to any law or regulation in accordance with which that
Finance Party is required or accustomed to act;
(iv) to any governmental, banking or taxation authority of competent
jurisdiction where such disclosure is required by such authority;
or
(v) to its auditors or legal or other professional advisers where
required by them in connection with their professional duties
with such Finance Party.
26. CHANGE TO THE BORROWER
The Borrower may not assign any of its rights or transfer any of its
rights or obligations under the Finance Documents.
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SECTION 10
THE FINANCE PARTIES
27. ROLE OF THE AGENT AND THE CO-ORDINATING ARRANGER
27.1 Appointment of the Agent
27.1.1 Each of the Co-ordinating Arranger and the Lenders appoints the
Agent to act as its agent under and in connection with the
Finance Documents.
27.1.2 Each of the Co-ordinating Arranger and the Lenders authorises the
Agent to exercise the rights, powers, authorities and discretions
specifically given to the Agent under or in connection with the
Finance Documents together with any other incidental rights,
powers, authorities and discretions.
27.2 Duties of the Agent
27.2.1 The Agent shall promptly forward to a Party the original or a
copy of any document which is delivered to the Agent for that
Party by any other Party.
27.2.2 If the Agent receives notice from a Party referring to this
Agreement, describing a Default and stating that the circumstance
described is a Default, it shall promptly notify the Lenders.
27.2.3 The Agent shall promptly notify the Lenders of any Default
arising under Clause 24.1 (Non-payment).
27.2.4 The Agent's duties under the Finance Documents are solely
mechanical and administrative in nature.
27.3 Role of the Co-ordinating Arranger
Except as specifically provided in the Finance Documents, the
Co-ordinating Arranger has no obligations of any kind to any other Party
under or in connection with any Finance Document.
27.4 No fiduciary duties
27.4.1 Nothing in this Agreement constitutes the Agent or the
Co-ordinating Arranger as a trustee or fiduciary of any other
person.
27.4.2 Neither the Agent nor the Co-ordinating Arranger shall be bound
to account to any Lender for any sum or the profit element of any
sum received by it for its own account.
27.5 Business with the Group
The Agent and the Co-ordinating Arranger may accept deposits from, lend
money to and generally engage in any kind of banking or other business
with any member of the Group.
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27.6 Rights and discretions of the Agent
27.6.1 The Agent may rely on:
(A) any representation, notice or document believed by it to
be genuine, correct and appropriately authorised; and
(B) any statement made by a director, authorised signatory or
employee of any person regarding any matters which may
reasonably be assumed to be within his knowledge or within
his power to verify.
27.6.2 The Agent may assume (unless it has received notice to the
contrary in its capacity as agent for the Lenders) that:
(A) no Default has occurred (unless it has actual knowledge of
a Default arising under Clause 24.1 (Non-payment));
(B) any right, power, authority or discretion vested in any
Party or the Majority Lenders has not been exercised.
27.6.3 The Agent may engage, pay for and rely on the advice or services
of any lawyers, accountants, surveyors or other experts.
27.6.4 The Agent may act in relation to the Finance Documents through
its personnel and agents.
27.7 Majority Lenders' instructions
27.7.1 Unless a contrary indication appears in a Finance Document, the
Agent shall:
(A) act in accordance with any instructions given to it by the
Majority Lenders or, if so instructed by the Majority
Lenders, refrain from acting or exercising any right,
power, authority or discretion vested in it as Agent; and
(B) not be liable for any act (or omission) if it acts (or
refrains from taking any action) in accordance with such
an instruction of the Majority Lenders.
27.7.2 Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Lenders will be binding on all
the Lenders and the Co-ordinating Arranger.
27.7.3 The Agent may refrain from acting in accordance with the
instructions of the Majority Lenders (or, if appropriate, the
Lenders) until it has received such security as it may require
for any cost, loss or liability (together with any associated
services tax) which it may incur in complying with the
instructions.
27.7.4 In the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders) the Agent may act (or refrain from
taking action) as it considers to be in the best interest of the
Lenders.
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27.7.5 The Agent is not authorised to act on behalf of a Lender (without
first obtaining that Lender's consent) in any legal or
arbitration proceedings relating to any Finance Document.
27.8 Responsibility for documentation
Neither the Agent nor the Co-ordinating Arranger:
27.8.1 is responsible for the adequacy, accuracy and/or completeness of
any information (whether oral or written) supplied by the Agent,
the Co-ordinating Arranger, an Obligor or any other person given
in or in connection with any Finance Document; or
27.8.2 is responsible for the legality, validity, effectiveness,
adequacy or enforceability of any Finance Document or any other
agreement, arrangement or document entered into, made or executed
in anticipation of or in connection with any Finance Document.
27.9 Exclusion of liability
27.9.1 Without limiting paragraph 27.9.2 below, the Agent will not be
liable for any action taken by it under or in connection with any
Finance Document, unless directly caused by its gross negligence
or willful misconduct.
27.9.2 No Party may take any proceedings against any officer, employee
or agent of the Agent in respect of any claim it might have
against the Agent or in respect of any act or omission of any
kind by that officer, employee or agent in relation to any
Finance Document and any officer, employee or agent of the Agent
may rely on this Clause.
27.9.3 The Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required
under the Finance Documents to be paid by the Agent if the Agent
has taken all necessary steps as soon as reasonably practicable
to comply with the regulations or operating procedures of any
recognised clearing or settlement system used by the Agent for
that purpose.
27.10 Lenders' indemnity to the Agent
Each Lender shall (in proportion to its share of the Total Commitments
or, if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify the
Agent, within three (3) Business Days of demand, against any cost, loss
or liability incurred by the Agent (otherwise than by reason of the
Agent's gross negligence or willful misconduct) in acting reasonably as
Agent under the Finance Documents (unless the Agent has been fully
reimbursed by an Obligor pursuant to a Finance Document).
27.11 Resignation of the Agent
27.11.1 Subject to the prior written notice given by the Agent to the
Borrower, the Agent may resign and appoint one of its
Affiliates acting through an office in Hong Kong as successor
by giving notice to the Lenders and the Obligors.
54
27.11.2 Alternatively the Agent may resign by giving notice to the
Lenders and the Obligors, in which case the Majority Lenders
(after obtaining the prior written approval of the Borrower
(not to be unreasonably withheld or delayed)) may appoint a
successor Agent.
27.11.3 If the Majority Lenders have not appointed a successor Agent in
accordance with paragraph 27.11.2 above within thirty (30) days
after notice of resignation was given, the Agent may appoint a
successor Agent (acting through an office in Hong Kong) which
shall be a reputable financial institution.
27.11.4 The retiring Agent shall, at its own cost, make available to
the successor Agent such documents and records and provide such
assistance as the successor Agent may reasonably request for
the purposes of performing its functions as Agent under the
Finance Documents.
27.11.5 The Agent's resignation notice shall only take effect upon the
appointment of a successor.
27.11.6 Upon the appointment of a successor, the retiring Agent shall
be discharged from any further obligation in respect of the
Finance Documents but shall remain entitled to the benefit of
this Clause 27. Its successor and each of the other Parties
shall have the same rights and obligations amongst themselves
as they would have had if such successor had been an original
Party.
27.12 Confidentiality
27.12.1 In acting as agent for the Finance Parties, the Agent shall be
regarded as acting through its agency division which shall be
treated as a separate entity from any other of its divisions or
departments.
27.12.2 If information is received by another division or department of
the Agent, it may be treated as confidential to that division
or department and the Agent shall not be deemed to have notice
of it.
27.12.3 Notwithstanding any other provision of any Finance Document to
the contrary, neither the Agent nor the Co-ordinating Arranger
are obliged to disclose to any other person (i) any
confidential information or (ii) any other information if the
disclosure would or might in its reasonable opinion constitute
a breach of any law or a breach of a fiduciary duty.
27.13 Relationship with the Lenders
The Agent may treat each Lender as a Lender, entitled to payments under
this Agreement and acting through its Facility Office unless it has
received not less than five Business Days prior notice from that Lender
to the contrary in accordance with the terms of this Agreement.
27.14 Credit appraisal by the Lenders
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance
Document, each Lender confirms to the Agent and the Co-ordinating
Arranger that it has been, and will continue to be, solely
55
responsible for making its own independent appraisal and investigation
of all risks arising under or in connection with any Finance Document
including but not limited to:
27.14.1 the financial condition, status and nature of each member of
the Group;
27.14.2 the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document and any other agreement,
arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance
Document;
27.14.3 whether that Lender has recourse, and the nature and extent of
that recourse, against any Party or any of its respective assets
under or in connection with any Finance Document, the
transactions contemplated by the Finance Documents or any other
agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any
Finance Document; and
27.14.4 the adequacy, accuracy and/or completeness of any information
provided by the Agent, any Party or by any other person under
or in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance
Document.
28. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
28.1.1 interfere with the right of any Finance Party to arrange its
affairs (tax or otherwise) in whatever manner it thinks fit;
28.1.2 oblige any Finance Party to investigate or claim any credit,
relief, remission or repayment available to it or the extent,
order and manner of any claim; or
28.1.3 oblige any Finance Party to disclose any information relating
to its affairs (tax or otherwise) or any computations in
respect of Tax.
29. SHARING AMONG THE LENDERS
29.1 Payments to Lenders
If a Lender (a "Recovering Lender") receives or recovers any amount
from an Obligor other than in accordance with Clause 30 (Payment
mechanics) and applies that amount to a payment due under the Finance
Documents then:
29.1.1 the Recovering Lender shall, within three Business Days, notify
details of the receipt or recovery, to the Agent;
29.1.2 the Agent shall determine whether the receipt or recovery is in
excess of the amount the Recovering Lender would have been paid
had the receipt or recovery been received or made by the Agent
and distributed in accordance with Clause 30 (Payment
mechanics), without taking account of any Tax
56
which would be imposed on the Agent in relation to the receipt,
recovery or distribution; and
29.1.3 the Recovering Lender shall, within three (3) Business Days of
demand by the Agent, pay to the Agent an amount (the "Sharing
Payment") equal to such receipt or recovery less any amount
which the Agent determines may be retained by the Recovering
Lender as its share of any payment to be made, in accordance
with Clause 30.5 (Partial payments).
29.2 Redistribution of payments
The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other
than the Recovering Lender) in accordance with Clause 30.5 (Partial
payments).
29.3 Recovering Lender's rights
29.3.1 On a distribution by the Agent under Clause 29.2
(Redistribution of payments), the Recovering Lender will be
subrogated to the rights of the Finance Parties which have
shared in the redistribution.
29.3.2 If and to the extent that the Recovering Lender is not able to
rely on its rights under paragraph 29.3.1 above, the relevant
Obligor shall be liable to the Recovering Lender for a debt
equal to the Sharing Payment which is immediately due and
payable.
29.4 Reversal of redistribution
If any part of the Sharing Payment received or recovered by a
Recovering Lender becomes repayable and is repaid by that Recovering
Lender, then:
29.4.1 each Lender which has received a share of the relevant Sharing
Payment pursuant to Clause 29.2 (Redistribution of payments)
shall, upon request of the Agent, pay to the Agent for account
of that Recovering Lender an amount equal to its share of the
Sharing Payment (together with an amount as is necessary to
reimburse that Recovering Lender for its proportion of any
interest on the Sharing Payment which that Recovering Lender is
required to pay); and
29.4.2 that Recovering Lender's rights of subrogation in respect of
any reimbursement shall be cancelled and the relevant Obligor
will be liable to the reimbursing Lender for the amount so
reimbursed.
29.5 Exceptions
29.5.1 This Clause 29 shall not apply to the extent that the
Recovering Lender would not, after making any payment pursuant
to this Clause, have a valid and enforceable claim against the
relevant Obligor.
29.5.2 A Recovering Lender is not obliged to share with any other
Lender any amount which the Recovering Lender has received or
recovered as a result of taking legal or arbitration
proceedings, if:
(A) it notified the other Lenders of the legal or
arbitration proceedings; and
57
(B) the other Lender had an opportunity to participate in
those legal or arbitration proceedings but did not do
so as soon as reasonably practicable having received
notice or did not take separate legal or arbitration
proceedings.
58
SECTION 11
ADMINISTRATION
30. PAYMENT MECHANICS
30.1 Payments to the Agent
30.1.1 On each date on which an Obligor or a Lender is required to
make a payment under a Finance Document, that Obligor or Lender
shall make the same available to the Agent (unless a contrary
indication appears in a Finance Document) for value on the due
date at the time and in such funds specified by the Agent as
being customary at the time for settlement of transactions in
the relevant currency in the place of payment.
30.1.2 Payment shall be made to the following account with ICBC HK the
payment details of which are: For HK$, Bank Code: 214, Branch
Code: 120-0001, For account of Xxx Xxxxxxxxxx xxx Xxxxxxxxxx
Xxxx xx Xxxxx, Xxxx Xxxx Branch, Attn: Loan Processing
Department, or such other account with such bank as the Agent
shall specify.
30.2 Distributions by the Agent
Each payment received by the Agent under the Finance Documents for
another Party shall, subject to Clause 30.3 (Distributions to the
Obligor) and Clause 30.4 (Clawback) be made available by the Agent as
soon as practicable after receipt to the Party entitled to receive
payment in accordance with this Agreement (in the case of a Lender, for
the account of its Facility Office), to such account as that Party may
notify to the Agent by not less than five Business Days' notice with a
bank in the principal financial centre of the country of that currency.
30.3 Distributions to an Obligor
The Agent may (with the consent of the Obligor or in accordance with
Clause 31 (Set-off)) apply any amount received by it for that Obligor
in or towards payment (on the date and in the currency and funds of
receipt) of any amount due from that Obligor under the Finance
Documents or in or towards purchase of any amount of any currency to be
so applied.
30.4 Clawback
30.4.1 Where a sum is to be paid to the Agent under the Finance
Documents for another Party, the Agent is not obliged to pay
that sum to that other Party until it has been able to
establish to its satisfaction that it has actually received
that sum.
30.4.2 If the Agent pays an amount to another Party and it proves to
be the case that the Agent had not actually received that
amount, then the Party to whom that amount was paid by the
Agent shall on demand refund the same to the Agent together
with interest on that amount from the date of payment to the
date of receipt by the Agent, calculated by the Agent to
reflect its cost of funds.
59
30.5 Partial payments
30.5.1 If the Agent receives a payment that is insufficient to
discharge all the amounts then due and payable by an Obligor
under the Finance Documents, the Agent shall apply that payment
towards the obligations of that Obligor under the Finance
Documents in the following order:
(A) first, in or towards payment pro rata of any unpaid
fees, costs and expenses of the Agent under the Finance
Documents;
(B) secondly, in or towards payment of any unpaid fees of
the Co-ordinating Arranger under this Agreement;
(C) thirdly, in or towards payment pro rata of any accrued
interest or commission due but unpaid under this
Agreement;
(D) fourthly, in or towards payment pro rata of any
principal due but unpaid under this Agreement; and
(E) fifthly, in or towards payment pro rata of any other
sum due but unpaid under the Finance Documents.
30.5.2 The Agent shall, if so directed by the Majority Lenders, vary
the order set out in paragraphs 30.5.1(C) to 30.5.1(E) above.
30.5.3 Paragraphs 30.5.1 and 30.5.2 above will override any
appropriation made by an Obligor.
30.6 No set-off by Obligor
All payments to be made by an Obligor under the Finance Documents shall
be calculated and be made without (and free and clear of any deduction
for) set-off or counterclaim.
30.7 Business Days
30.7.1 Any payment which is due to be made on a day that is not a
Business Day shall be made on the next Business Day in the same
calendar month (if there is one) or the preceding Business Day
(if there is not).
30.7.2 During any extension of the due date for payment of any
principal or an Unpaid Sum under this Agreement interest is
payable on the principal at the rate payable on the original
due date.
30.8 Currency of account
30.8.1 Subject to paragraphs 30.8.2 to 30.8.3 below, HK Dollars is the
currency of account and payment for any sum due from an Obligor
under any Finance Document.
30.8.2 Each payment in respect of costs, expenses or Tax shall be made
in the currency in which the costs, expenses or Tax are
incurred.
30.8.3 Any amount expressed to be payable in a currency other than HK
Dollars shall be paid in that other currency.
60
31. SET-OFF
A Finance Party may set off any matured obligation due from an Obligor
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance
Party to that Obligor, regardless of the place of payment, booking
branch or currency of either obligation. If the obligations are in
different currencies, the Finance Party may convert either obligation
at a market rate of exchange in its usual course of business for the
purpose of the set-off. The Finance Party shall notify the Agent and
the Borrower forthwith upon the exercise or purported exercise of any
right of set-off giving full details in relation thereto and the Agent
shall inform the other Lenders.
32. NOTICES
32.1 Communications in writing
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be
made by fax, letter or telex.
32.2 Addresses
The address, fax number and telex number (and the department or
officer, if any, for whose attention the communication is to be made)
of each Party for any communication or document to be made or delivered
under or in connection with the Finance Documents is:
32.2.1 in the case of each Lender or any Obligor, that notified in
writing to the Agent on or prior to the date on which it
becomes a Party; and
32.2.2 in the case of the Agent, that identified with its name below,
or any substitute address, fax number, telex number or department or
officer as the Party may notify to the Agent (or the Agent may notify
to the other Parties, if a change is made by the Agent) by not less
than five (5) Business Days' notice.
32.3 Delivery
32.3.1 Any communication or document made or delivered by one person
to another under or in connection with the Finance Documents
will only be effective:
(A) if by way of fax (unless that other person has by
fifteen (15) days' notice to the Agent specified
another number) when made to such other person to the
fax number identified with its signature below (or, in
the case of a permitted transferee, at the end of the
Transfer Certificate to which it is a party as
permitted transferee) and shall be deemed to have been
received when transmission has been completed; or
(B) if by way of letter, when it has been left at the
relevant address or three Business Days after being
deposited in the post postage prepaid in an envelope
addressed to it at that address; or
61
(C) if by way of telex, when despatched, but only if, at
the time of transmission, the correct answerback
appears at the start and at the end of the sender's
copy of the notice;
and, if a particular department or officer is specified as part
of its address details provided under Clause 32.2 (Addresses),
if addressed to that department or officer.
32.3.2 Any communication or document to be made or delivered to the
Agent will be effective only when actually received by the
Agent and then only if it is expressly marked for the attention
of the department or officer identified with the name of the
Agent below (or any substitute department or officer as the
Agent shall specify for this purpose).
32.3.3 All notices from or to an Obligor shall be sent through the
Agent.
32.4 Notification of address, fax number and telex number
Promptly upon receipt of notification of an address, fax number and
telex number or change of address, fax number or telex number pursuant
to Clause 32.2 (Addresses) or changing its own address, fax number or
telex number, the Agent shall notify the other Parties.
32.5 English language
32.5.1 Any notice given under or in connection with any Finance
Document must be in English.
32.5.2 All other documents provided under or in connection with any
Finance Document must be:
(A) in English; or
(B) if not in English, and if so required by the Agent,
accompanied by a certified English translation and, in
this case, the English translation will prevail unless
the document is a constitutional, statutory or other
official document.
33. CALCULATIONS AND CERTIFICATES
33.1 Accounts
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters
to which they relate.
33.2 Certificates and Determinations
Any certification or determination by a Finance Party of a rate or
amount under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
62
33.3 Day count convention
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual
number of days elapsed and a year of 365 days or, in any case where the
practice in the Hong Kong Interbank Market differs, in accordance with
that market practice.
34. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of
such provision under the law of any other jurisdiction will in any way
be affected or impaired.
35. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver, nor shall any single or partial exercise of any
right or remedy prevent any further or other exercise or the exercise
of any other right or remedy. The rights and remedies provided in this
Agreement are cumulative and not exclusive of any rights or remedies
provided by law.
36. AMENDMENTS AND WAIVERS
36.1 Required consents
36.1.1 Subject to Clause 36.2 (Exceptions) any term of the Finance
Documents may be amended or waived only with the consent of the
Majority Lenders and the Obligors, and any such amendment or
waiver will be binding on all Parties.
36.1.2 The Agent may effect, on behalf of any Finance Party, any
amendment or waiver permitted by this Clause.
36.2 Exceptions
36.2.1 An amendment or waiver that has the effect of changing or which
relates to:
(A) the definition of "Majority Lenders" in Clause 1.1
(Definitions);
(B) an extension to the date of payment of any amount under
the Finance Documents;
(C) a reduction in the Margin or the amount of any payment
of principal, interest, fees or commission payable;
(D) an increase in Commitment;
(E) a change to or release of any Obligor or incorporation
of an additional Obligor;
(F) any provision which expressly requires the consent of
all the Lenders;
63
(G) Clause 2.2 (Lenders' rights and obligations), Clause 25
(Changes to the Lenders), Clause 29 (Sharing among the
Lenders), Clause 30.8 (Currency of account) or this
Clause 36,
shall not be made without the prior consent of all the Lenders.
36.2.2 An amendment or waiver which relates to the rights or
obligations of the Agent or the Co-ordinating Arranger may not
be effected without the consent of the Agent or the
Co-ordinating Arranger.
37. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts,
and this has the same effect as if the signatures on the counterparts
were on a single copy of the Finance Document.
64
SECTION 12
GOVERNING LAW AND ENFORCEMENT
38. GOVERNING LAW
This Agreement is governed by Hong Kong law.
39. ENFORCEMENT
39.1 Jurisdiction of Hong Kong courts
39.1.1 The courts of Hong Kong have non-exclusive jurisdiction to
settle any dispute arising out of or in connection with this
Agreement (including a dispute regarding the existence,
validity or termination of this Agreement) (a "Dispute").
39.1.2 The Parties agree that the courts of Hong Kong are the most
appropriate and convenient courts to settle Disputes and
accordingly no Party will argue to the contrary.
39.1.3 This Clause 39.1 is for the benefit of the Finance Parties
only. As a result, no Finance Party shall be prevented from
taking proceedings relating to a Dispute in any other courts
with jurisdiction. To the extent allowed by law, the Finance
Parties may take concurrent proceedings in any number of
jurisdictions.
39.2 Service of process
Without prejudice to any other mode of service allowed under any
relevant law, each Obligor (other than the Guarantor and the Borrower):
39.2.1 irrevocably appoints Aranea Limited of 00xx Xxxxx, XXXX Xxxxx,
Xxxxxx Xxxxx, Xxxxxx Xxx, Xxxx Xxxx as its agent for service of
process in relation to any proceedings before the Hong Kong
courts in connection with any Finance Document; and
39.2.2 agrees that failure by a process agent to notify the relevant
Obligor of the process will not invalidate the proceedings
concerned.
39.3 Waiver of Immunity
Each Obligor irrevocably and unconditionally:-
39.3.1 agrees that in any legal action or proceedings against it or
its assets in connection with this Agreement no immunity from
such legal action or proceedings (which shall include, without
limitation, suit, attachment prior to judgment, other
attachment, the obtaining of judgment, execution or other
enforcement) shall be claimed by or on behalf of such Obligor
or with respect to its assets;
39.3.2 irrevocably waives any such right of immunity which it or its
assets now have or may hereafter acquire or which may be
attributed to it or its assets; and
65
39.3.3 consents generally in respect of any such legal action or
proceedings to the giving of any relief or the issue of any
process in connection with such action or proceedings
including, without limitation, the making, enforcement or
execution against any property whatsoever, (irrespective of its
use or intended use) of any order or judgment which may be made
or given in such action or proceedings.
This Agreement has been entered into on the date stated at the beginning of
this Agreement.
66
SCHEDULE 1
THE ORIGINAL LENDERS
Part I: Term Loan Facility
Name of Original Lender Commitment (HK$)
----------------------- ----------------
The Industrial and Commercial Bank of China,
Hong Kong Branch 750,000,000
Part II: SBLC Facility
Name of Original Lender Commitment (HK$)
----------------------- ----------------
Xxx Xxxxxxxxxx xxx Xxxxxxxxxx Xxxx xx Xxxxx,
Xxxx Xxxx Branch 1,300,000,000
TOTAL: 2,050,000,000
67
SCHEDULE 2
CONDITIONS PRECEDENT
CONDITIONS PRECEDENT TO INITIAL DRAWDOWN
1. The Obligors
1.1 A copy of the constitutional documents of each Obligor.
1.2 A copy of a resolution of the board of directors of each Obligor:
1.2.1 approving the terms of, and the transactions contemplated
by, the Finance Documents to which it is a party and
resolving that it execute the Finance Documents to which
it is a party;
1.2.2 authorising a specified person or persons to execute the
Finance Documents to which it is a party on its behalf;
and
1.2.3 authorising a specified person or persons, on its behalf,
to sign and/or despatch all documents and notices
(including, in the case of the Borrower, any Drawdown
Request and Rollover Notice) to be signed and/or
despatched by it under or in connection with the Finance
Documents to which it is a party.
1.3 A specimen of the signature of each person authorised by the
resolution referred to in paragraph 1.2 above.
1.4 A certificate of each Obligor (signed by a director) confirming
that borrowing or guaranteeing, as appropriate, the Total
Commitments would not cause any borrowing, guaranteeing or
similar limit binding on such Obligor to be exceeded.
1.5 A certificate of an authorised signatory of the relevant Obligor
certifying that each copy document relating to it specified in
this Schedule 2 is correct, complete and in full force and effect
as at a date no earlier than the Agreement Date.
1.6 All Authorizations, governmental or otherwise required by each
Obligor (other than those specified in paragraph 2 of this
Schedule 2) to authorise, or required by that Obligor or which
the Agent considers to be necessary or desirable (if it has
notified the relevant Obligor accordingly) in connection with,
the execution, delivery, validity, enforceability and
admissibility in evidence of the Finance Documents to which it is
party and the performance by that Obligor of its respective
obligations under the Finance Documents to which it is party.
1.7 A copy of the Debenture duly executed by Gain Score.
1.8 A copy of the Share Charge duly executed by the Chargor.
1.9 A copy of the PCCW Indemnity Letter duly executed by the
Guarantor.
68
1.10 A copy of each of the RMB Facility Documents duly executed by the
RMB Borrower provided that only one executed RMB Loan Agreement
and Mortgage will be required for each SBLC to be issued.
1.11 Share certificates of Gain Score representing 100% of the issued
share capital of Gain Score owned by the Chargor and instruments
of transfer duly signed (but undated) in respect of such Gain
Score shares.
2. Approval and Registration
Evidence that the relevant Mortgage has been registered with the
appropriate PRC authorities.
3. Legal opinions
3.1 A legal opinion of Xxxxxxx Xxxxx, legal advisers to the Original
Lenders on Hong Kong law, substantially in the form distributed
to the Original Lenders prior to signing this Agreement.
3.2 A legal opinion of Jingtian & Gong Cheng, the legal advisers to
the Original Lenders and the RMB Lender on PRC law substantially
in the form distributed to the Original Lenders and the RMB
Lender prior to signing this Agreement for each SBLC to be
issued.
3.3 A legal opinion of Xxxxxx Westwood & Riegels, the legal advisers
to the Original Lenders and the RMB Lender on the laws of the
British Virgin Islands substantially in the form distributed to
the Original Lenders and the RMB Lender prior to signing of this
Agreement.
4. PRC Properties
4.1 A valuation report addressed to ICBC dated not earlier than 90
days from the Agreement Date on the PRC Properties by CB Xxxxxxx
Xxxxx or such other independent appraiser as approved by the
Agent in its reasonable opinion, showing the aggregate open value
of the PRC Properties bearing such amount as will provide for a
Loan-to-Value Ratio of 50% or less.
4.2 Copies of all the tenancy agreements relating to the PRC
Properties in form and substance reasonably satisfactory to the
Agent.
5. Other documents and evidence
5.1 The Arrangement Fee Letter duly executed by the Borrower.
5.2 Evidence that any process agent referred to in Clause 39.2
(Service of process) of this Agreement has accepted its
appointment.
5.3 The Original Financial Statements of each Obligor (other than the
Borrower and the Chargor).
5.4 Evidence that the fees, costs and expenses then due from the
relevant Obligor pursuant to Clause 13 (Fees) and Clause 18
(Expenses) have been paid or will be paid by the first Drawdown
Date.
69
5.5 Evidence that all insurance policies in relation to the PRC
Properties owned by the RMB Borrower note the Beneficiary as sole
loss payee.
5.6 Other documents which may be reasonably required by PRC counsel
(and notified in advance to the Obligor).
70
SCHEDULE 3
REQUESTS
PART I
DRAWDOWN REQUEST
From: Pacific Century HKT Limited
To: The Industrial and Commercial Bank of China, Hong Kong Branch
Dated:
Dear Sirs
HK$2,050,000,000 Facilities Agreement (the "Facilities Agreement") dated 21st
December 2001 with Pacific Century HKT Limited
-----------------------------------------------------------------------------
1. We wish to borrow a Loan on the following terms:
Proposed Drawdown Date: [ ] (or, if that is not a Business Day,
the next Business Day)
Amount: [ ] or, if less, the Available Facility
Interest Period: [1, 2, 3 or 6 Months]
2. We confirm that each condition specified in Clause 4.2 (Further
conditions precedent) is satisfied on the date of this Drawdown Request.
3. The proceeds of this Loan should be credited to [account].
4. This Drawdown Request is irrevocable.
5. Words and expressions defined in the Facilities Agreement shall have the
same meanings when used herein.
Yours faithfully
........................................
authorised signatory for
Pacific Century HKT Limited
71
PART II
ROLLOVER NOTICE
From: Pacific Century HKT Limited
To: The Industrial and Commercial Bank of China, Hong Kong Branch
Dated:
Dear Sirs
HK$2,050,000,000 Facilities Agreement (the "Facilities Agreement") dated 21st
December 2001 with Pacific Century HKT Limited
-----------------------------------------------------------------------------
1. We refer to the following Loan[s] with an Interest Period ending on
[ ]*.
2. We request that the next Interest Period for the above Loan[s] is [ ].
3. This Rollover Notice is irrevocable.
4. Words and expressions defined in the Facilities Agreement shall have the
same meanings when used herein.
Yours faithfully
......................................
authorised signatory for
Pacific Century HKT Limited
-------------
* Insert details of all Loans which have an Interest Period ending on the same
date.
72
SCHEDULE 4
FORM OF TRANSFER CERTIFICATE
To: as Agent
From: [The Existing Lender] (the "Existing Lender") and [The New Lender]
(the "New Lender")
Dated:
HK$2,050,000,000 Facilities Agreement (the "Facilities Agreement") dated 21st
December 2001 with Pacific Century HKT Limited
-------------------------------------------------------------------------------
1. We refer to Clause 25.5 (Procedure for transfer):
(1) The Existing Lender and the New Lender agree to the Existing
Lender and the New Lender transferring by novation all or part of
the Existing Lender's Commitment, rights and obligations referred
to in the Schedule in accordance with Clause 25.5 (Procedure for
transfer).
(2) The proposed Transfer Date is [ ].
(3) The Facility Office and address, fax number and attention details
for notices of the New Lender for the purposes of Clause 32.2
(Addresses) are set out in the Schedule.
2. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph 25.4.3 of Clause 25.4
(Limitation of responsibility of Existing Lenders).
3. This Transfer Certificate is governed by Hong Kong law.
4. Words and expressions defined in the Facility Agreement shall have the
same meanings when used herein.
THE SCHEDULE
Commitment/rights and obligations to be transferred
Amount of Term Loan Amount of SBLC Participation Participation Next Interest Portion
Commitment (HK$) Commitment (HK$) Loans drawn SBLC Issued (HK$) Payment Date transferred
(HK$) (HK$)
[ ] [ ] [ ] [ ] [ ] [ ]
73
Administrative details of the New Lender
Facility Office address: [ ]
Account for payments: [ ]
Tel. No.: [ ]
Fax No.: [ ]
Attention: [ ]
[Existing Lender] [New Lender]
By: By:
This Transfer Certificate is accepted by the Agent and the Transfer Date is
confirmed as [ ].
[Agent]
By:
74
SCHEDULE 5
FORM OF SBLC
Date:
To: The Industrial and Commercial Bank of China, Head Office
From: The Industrial and Commercial Bank of China, Hong Kong Branch
We hereby issue our Irrevocable Standby Letter of Credit No. [ ] in your
favour for the account of Pacific Century HKT Limited (the "Customer") whose
registered office is situated at . This Standby
Letter of Credit is available for payment in HK Dollars for an amount up to HK
Dollars [amount in words] Only (the "Maximum Liability") subject to the
reduction schedule attached to this Standby Letter of Credit (the "Reduction
Schedule").
Upon:
(a) presentation of your draft(s); and
(b) receipt of your tested telex demand not later than the expiry
date of this Standby Letter of Credit stating the amount drawn
and that the amount drawn represents the HK Dollar equivalent (at
the relevant exchange rate quoted by you on the date of your
drawing) of unpaid indebtedness due to you or your sub-branches
by Beijing Xxxx Xxx House and Land Estate Development Co. Ltd.
(the "Borrower") under a RMB1,300 million loan facility granted
by you to the Borrower on [date],
we shall, within seven (7) banking days pay you the amount specified in your
draft(s) drawn on us provided that the aggregate amount drawn under this
Standby Letter of Credit shall (1) not exceed the Maximum Liability and (2) be
reduced in accordance with the amounts and at the times set out in the
Reduction Schedule unless as otherwise notified by you via tested telex or
authenticated SWIFT to us from time to time.
Except as expressly stated herein, this undertaking is not subject to any
agreement, condition or qualification. The obligation of the issuing bank under
this Standby Letter of Credit shall be the individual obligation of the issuing
bank.
This Standby Letter of Credit will come into effect on [ ] and expire on
[ ] at the counter of The Industrial and Commercial Bank of China, Hong
Kong Branch.
All drafts drawn hereunder must be marked drawn under The Industrial and
Commercial Bank of China, Hong Kong Branch (the issuing bank) Standby Letter of
Credit No. [ ] dated [ ].
We engage with you that drafts drawn under and in compliance with the terms of
this Standby Letter of Credit shall be duly honoured on due presentation to us.
75
This Standby Letter of Credit is not transferable and not assignable.
This Standby Letter of Credit is subject to Uniform Customs and Practice for
documentary credits (1993 revision) International Chamber of Commerce
Publication No. 500.
Best regards,
FOR AND ON BEHALF OF
The Industrial and Commercial Bank of China,
Hong Kong Branch
76
SCHEDULE 6
SBLC REDUCTION SCHEDULE
Installments Reduction Total Reduction
1st - 4th HKD20 Million HKD80 Million
0xx - 0xx XXX00 Xxxxxxx XXX000 Million
0xx - 00xx XXX00 Xxxxxxx XXX000 Million
00xx - 00xx XXX00 Xxxxxxx XXX000 Million
17th - 20th HKD40 Million XXX000 Xxxxxxx
00xx - 00xx XXX00 Million HKD135 Million
24th (Final Maturity) HKD565 Million HKD565 Million
Total HKD1,300 Million
77
SCHEDULE 7
FORM OF SBLC APPLICATION
To: The Industrial and Commercial Bank of China Hong Kong branch (the "Agent")
From: Pacific Century HKT Limited (the "Borrower")
_______________________
Dear Sirs,
HK$2,050,000,000 Facility Agreement dated 21st December 2001 between, inter
alia, the Borrower and the Agent (the "Facilities Agreement")
We refer to the Facilities Agreement and request the Agent to issue a Standby
Letter of Credit with an aggregate face amount of HK$[ ] as per the
attached application.*
We confirm that:
(a) the representations and warranties set out in Clause 21 of the
Facilities Agreement, repeated with reference to the facts and
circumstances subsisting at the date of this application, remain true
and correct; and
(b) no Default or Event of Default has occurred which remains unwaived or
unremedied.
Terms defined in the Facilities Agreement have the same meaning when used in
this application.
For and on behalf of,
Pacific Century HKT Limited
_________________________
---------
* Attach application form and supporting documents as required by the Agent.
78
SCHEDULE 8
FORM OF SBLC AMENDMENT APPLICATION
To: The Industrial and Commercial Bank of China Hong Kong Branch (the "Agent")
From: Pacific Century HKT Limited (the "Borrower")
_______________________
Dear Sirs,
HK$2,050,000,000 Facilities Agreement dated 21st December 2001 between, inter
alia the Borrower and the Agent (the "Facilities Agreement")
We refer to the Facilities Agreement and SBLC issued by Agent as issuing bank
on pursuant thereto with a current face amount of HK$[ ].
We hereby request the Agent to effect amendments to the SBLC issued on
as per the attached application form*, so that following such amendments, the
SBLC will have an aggregate face amount of HK$ .
We confirm that:
(c) the representations and warranties set out in Clause 21 of the
Facilities Agreement, repeated with reference to the facts and
circumstances subsisting at the date of this application, remain true
and correct; and
(d) no Default or Event of Default has occurred which remains unwaived or
unremedied.
Terms defined in the Facilities Agreement have the same meaning when used in
this application.
For and on behalf of,
Pacific Century HKT Limited
________________________
---------
* Attach application form and supporting documents as required by Agent.
79
SCHEDULE 9
PRC PROPERTIES
Location: Northeast Corner, 4 Worker's Xxxxxxx Xxxx Xxxxx,
Xxxxxxxx Xxxxxxxx, Xxxxxxx, XXX;
Delimitation of the Land: East Boundary: 5 Bai Xxx Xxxxxx Li North;
South Boundary: 0 Xxxxxx'x Xxxxxxx Xxxx Xxxxx;
West Boundary: 0 Xxxxxx'x Xxxxxxx Xxxx Xxxxx;
North Boundary: Worker's Xxxxxxx Xxxx Xxxxx,
0 Worker's Stadium Road North, 5 Bai Xxx Xxxxxx Li
North;
The Area of Land: 29,350 Square Meters;
The Uses of Land and
Term of Land Use Right: Commercial (40 years), Office (50 years) and
Residential (70)
Serial Number of the
Land Use Right Certificate: Xxxx Xxxx Xxxxx Xxx Xxx Xxxx (94) Zi No. 00055
Serial Number of the
Land Use Right
Granting Agreement: Jing Xxxx Xx Xxx Rang [He] Zi (93) No.282 Jing Xxxx
Xx Xxx Rang [He] Zi (98) No.413
Serial Number of External
Sales License: Xxxx Xxxx Shi Xxx Xxxxx Zi No.118
Gross Floor Areas: 209,451.55 Square Meters.
Area of Tower A: 41,717.24 Square Meters.
Area of Tower B: 20,103.93 Square Meters.
Area of Tower C: 21,718.24 Square Meters.
Area of Tower D: 10,945.80 Square Meters.
Area of Podium: 67,525.00 Square Meters.
Number of car parks: 834 lots.
80
SCHEDULE 10
LEASING ACCOUNT REPORT
81
SIGNATORIES
The Borrower
PACIFIC CENTURY HKT LIMITED
By:
Address: Pacific Century CyberWorks Limited
38th Floor, Citibank Tower
Xxxxxxxx Xxxxx
0 Xxxxxx Xxxx
Xxxxxxx
Xxxx Xxxx
Tel No.: (000) 0000 0000
Fax No.: (000) 0000 0000
Attention: W. Xxxxxxx Xxxxx
The Guarantor
PACIFIC CENTURY CYBERWORKS LIMITED
By:
Address: Pacific Century CyberWorks Limited
38th Floor, Citibank Tower
Xxxxxxxx Xxxxx
0 Xxxxxx Xxxx
Xxxxxxx
Xxxx Xxxx
Tel No.: (000) 0000 0000
Fax No.: (000) 0000 0000
Attention: W. Xxxxxxx Xxxxx
82
The Co-ordinating Arranger
INDUSTRIAL AND COMMERCIAL BANK OF CHINA (ASIA) LIMITED
By:
Address: ICBC Tower
000-000 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Tel No.: (000) 0000 0000
Fax No.: (000) 0000 0000
Attention: Corporate Banking Department
The Original Lenders
XXX XXXXXXXXXX XXX XXXXXXXXXX XXXX XX XXXXX,
XXXX XXXX BRANCH
By:
Address: 00xx Xxxxx
0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Tel No.: (000) 0000 0000
Fax No.: (000) 0000 0000
Attention: Corporate Banking Department
83
The Obligors
GAIN SCORE LIMITED
By:
Address: Pacific Century CyberWorks Limited
38th Floor, Citibank Tower
Xxxxxxxx Xxxxx
0 Xxxxxx Xxxx
Xxxxxxx
Xxxx Xxxx
Tel No.: (000) 0000 0000
Fax No.: (000) 0000 0000
Attention: W. Xxxxxxx Xxxxx
EXCEL BRIGHT PROPERTIES LIMITED
By:
Address: Pacific Century CyberWorks Limited
38th Floor, Citibank Tower
Xxxxxxxx Xxxxx
0 Xxxxxx Xxxx
Xxxxxxx
Xxxx Xxxx
Tel No.: (000) 0000 0000
Fax No.: (000) 0000 0000
Attention: W. Xxxxxxx Xxxxx
84
The Agent
XXX XXXXXXXXXX XXX XXXXXXXXXX XXXX XX XXXXX, XXXX XXXX BRANCH
By:
Address: 00xx Xxxxx
0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Tel No.: (000) 0000 0000
Fax No.: (000) 0000 0000
Attention: Corporate Banking Department
85
