EXHIBIT 4(jj)
CONFORMED COPY
DATED: 22 December 2003
Facility Agreement
between
PCCW-HKT Telephone Limited
as Borrower
Industrial and Commercial Bank of China (Asia) Limited
as Co-ordinating Arranger
The Financial Institution listed herein
as Original Lender
and
Industrial and Commercial Bank of China (Asia) Limited
as Agent
relating to
HK$2,000,000,000 REVOLVING LOAN FACILITY
Simmons&Simmons
35th Floor Xxxxxx Kong Center 0 Xxxxx'x Xxxx Xxxxxxx Xxxx Xxxx
T (000) 0000 0000 F (000) 0000 0000 DX 009121 Central 1
CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
2. THE FACILITY 13
3. PURPOSE 14
4. CONDITIONS OF ADVANCE 14
5. REPAYMENT 15
6. CANCELLATION AND PREPAYMENT 16
7. INTEREST 17
8. INTEREST PERIODS 18
9. CHANGES TO THE CALCULATION OF INTEREST AND BREAK COSTS 19
10. FEES 20
11. TAX GROSS UP AND CREDIT 20
12. INCREASED COSTS 22
13. INDEMNITIES 24
14. ILLEGALITY AND MITIGATION 25
15. COSTS AND EXPENSES 26
16. REPRESENTATIONS AND WARRANTIES 26
17. INFORMATION UNDERTAKINGS 30
18. FINANCIAL COVENANTS 32
19. GENERAL UNDERTAKINGS 34
20. EVENTS OF XXXXXXX 00
00. CHANGES TO THE LENDERS 40
22. CHANGES TO THE BORROWER 44
23. AGENT 44
24. AMENDMENTS AND DECISIONS 50
25. RETIREMENT OF AGENT 53
26. SHARING AMONG LENDERS 53
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27. PAYMENT MECHANICS 55
28. PAYMENT OF TAXES AND RECOVERIES 56
29. SET-OFF 57
30. CONDUCT OF BUSINESS BY THE FINANCE PARTIES 57
31. NOTICES 57
32. CALCULATIONS AND CERTIFICATES 58
33. PARTIAL INVALIDITY 58
34. REMEDIES AND WAIVERS 58
35. COUNTERPARTS 59
36. GOVERNING LAW 59
37. ENFORCEMENT 59
SCHEDULE 1: THE ORIGINAL LENDER 60
SCHEDULE 2: CONDITIONS PRECEDENT 61
SCHEDULE 3: DRAWDOWN NOTICE 63
SCHEDULE 4: FORM OF TRANSFER CERTIFICATE 64
SCHEDULE 5: FORM OF ASSIGNEE'S UNDERTAKING 66
SCHEDULE 6: FORM OF CONFIDENTIALITY UNDERTAKING 69
SCHEDULE 7: FORM OF COMPLIANCE CERTIFICATE 71
ii
THIS AGREEMENT is made on the 22nd day of December 2003
BETWEEN:
(1) PCCW-HKT TELEPHONE LIMITED, a company incorporated in Hong Kong with
company number 676 (the "Borrower");
(2) INDUSTRIAL AND COMMERCIAL BANK OF CHINA (ASIA) LIMITED as co-ordinating
arranger (the "Co-ordinating Arranger");
(3) The financial institution listed in Schedule 1 as original lender (the
"Original Lender"); and
(4) INDUSTRIAL AND COMMERCIAL BANK OF CHINA (ASIA) LIMITED as agent (the
"Agent").
IT IS AGREED as follows:
PART 1: INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement (including the Schedules):
"Adjusted Consolidated Net Worth" means, in relation to the Borrower,
the sum of:
(A) all amounts paid up (or credited as paid up) on all classes of its
issued share capital, revenue or capital reserves, capital
contribution or any other accounts that are included as
shareholders' funds under Hong Kong GAAP; and
(B) the aggregate outstanding principal amount of its Subordinated
Indebtedness.
"Affiliate" means, in relation to any person, a Subsidiary of that
person or a Holding Company of that person or any other Subsidiary of
that Holding Company.
"Agent-Related Persons" means the Agent, the Co-ordinating Arranger and
any successor Agent arising under clause 25 (Retirement of Agent)
together with their respective Affiliates and the officers, directors,
employees, agents and attorneys-in-fact of such persons and Affiliates.
"Agreed Terms" means, in relation to any document, the form of that
document initialled by or on behalf of the Agent and the Borrower or if
no such form has been agreed, in such form as the Agent may require.
"Authorisation" means any governmental or regulatory authorisation,
consent, approval, licence, exemption, filing or registration.
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"Available Commitment" means, in respect of any Lender, such Lender's
Commitment minus:
(A) the amount of its participation in any outstanding Loans (other
than, in relation to any proposed Loan, that Lender's
participation in any Loans that are due to be repaid or prepaid on
or before the relevant proposed Drawdown Date); and
(B) in relation to any proposed Loan, the amount of its participation
in any Loans that are due to be made on or before the proposed
Drawdown Date.
"Available Facility" means the aggregate for the time being of each
Lender's Available Commitment.
"Availability Period" means the period from and including the date of
this Agreement to and including the date falling 1 Month before the
Final Repayment Date.
"Borrowed Money" means any indebtedness (other than Subordinated
Indebtedness) for or in respect of (but without double counting) all or
any of the following:
(A) any moneys borrowed;
(B) any amount raised by acceptance under any acceptance credit
facility;
(C) any amount raised pursuant to any note purchase facility or
the issue of bonds (including, for the avoidance of doubt,
convertible bonds to the extent not converted into equity),
notes, debentures, loan stock or any similar instrument;
(D) the amount of any liability in respect of any lease or hire
purchase contract which would, in accordance with Hong Kong
GAAP be treated as a finance or capital lease;
(E) the amount of any liability in respect of any advance or
deferred purchase agreement if the primary reasons for
entering into such agreement is to raise finance;
(F) receivables sold or discounted (other than on a non-recourse
basis);
(G) any agreement or option to re-acquire an asset if one of the
primary reasons for entering into such agreement or option is
to raise finance;
(H) any amount raised under any other transaction (including any
forward sale or purchase agreement) having the commercial
effect of a borrowing;
(I) the amount of any liability in respect of any guarantee or
indemnity for any of the items referred to in paragraphs (A)
to (H) above; and
(J) counter-indemnity obligations in respect of letters of credit,
guarantees or similar instruments issued by banks or financial
institutions to support indebtedness for Borrowed Money of any
other person.
"Borrower Group" means the Borrower and each of its Subsidiaries from
time to time and "Borrower Group Company" means each or any of them as
the context may require.
2
"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 an Unpaid Sum to the last day of
the current Interest Period in respect of such Loan or Unpaid
Sum, had the principal amount of such Loan or Unpaid Sum
received been paid on the last day of that Interest Period;
exceeds:
(B) the amount which that Lender would be able to obtain by
placing an amount equal to the principal amount of its
participation in such Loan or Unpaid Sum received by it on
deposit with a leading bank in the Hong Kong interbank market
for Hong Kong Dollar deposits for a period starting on the
Business Day following receipt or recovery of such amount and
ending on the last day of the current Interest Period.
"Business Day" means a day (other than a Saturday or Sunday) on which
banks are open for general business in Hong Kong.
"Commitment" means in relation to a Lender (subject to clause 21
(Changes to the Lenders)), the amount set opposite its name under the
heading "Commitment" in Schedule 1 (The Original Lender) and/or (as the
case may be) the amount of any other Commitment transferred to it under
this Agreement (in either case, regardless of whether a Loan has been
advanced), as the same may be reduced, varied or cancelled in
accordance with the terms of this Agreement.
"Companies Ordinance" means the Companies Ordinance (Chapter 32 of the
Laws of Hong Kong).
"Compliance Certificate" means a certificate duly signed and completed
by the Borrower and, where such certificate is delivered together with
audited financial statements, by the auditors of the Borrower
substantially in the form of Schedule 7 (Form of Compliance
Certificate).
"Continuing", in the context of a Default, means:
(A) where the underlying circumstances which caused that Default
are incapable of remedy when viewed objectively, that Default
is continuing, unless and until it has been expressly waived
in writing by the Agent and any conditions of such waiver have
all been fulfilled to the satisfaction of the Agent; or
(B) in any other case, that Default is continuing unless and until
either:
(1) it has been expressly waived in writing by the Agent
and any conditions of such waiver have all been
fulfilled to the reasonable satisfaction of the Agent;
or
(2) the underlying circumstances which caused that Default
have been remedied to the reasonable satisfaction of
the Agent and the resulting position is what it would
have been if such Default had not occurred (so that,
for example, in the case of the late delivery of a
document which is subsequently satisfactorily
delivered, or the withdrawal or settlement of a
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claim the existence or pursuance of which constituted a
Default, that Default is not continuing once the underlying
circumstances no longer apply); or
(3) in the case of a Potential Event of Default it is no
longer possible for the relevant circumstances to
constitute or bring about an Event of Default.
"Core Business" means the local telephony services (consisting of local
telephone services, value-added services, and wholesale interconnection
services provided to other carriers and service providers), the local
data services (consisting of local wholesale and retail leased
circuits, data services and wholesale broadband access lines, utilising
Borrower's broadband network) and the international telecommunications
services (consisting of retail international direct dial services,
retail international private leased circuits, international
interconnection services and international data services), in each
case, operated and carried on by the Borrower Group, provided that
Cascade Limited and the business carried on by it shall not form part
of the Core Business.
"Default" means an Event of Default or a Potential Event of Default.
"Drawdown Date" means the date on which monies are to be or, as the
context may require, have been advanced by the Lenders to the Borrower
pursuant to a Drawdown Notice.
"Drawdown Notice" means a notice substantially in the form set out in
Schedule 3 (Drawdown Notice).
"Encumbrance" means any mortgage, charge, pledge, lien, encumbrance,
hypothecation, title retention, security interest or security
arrangement of any kind but excluding any rights of set-off or
combination of accounts arising under applicable common law, equity,
statute or regulations.
"Event of Default" means any event or circumstance specified as such in
clause 20.1 (Events of Default).
"Facility" means the revolving loan facility made available under this
Agreement as described in clause 2 (The Facility), as the same may be
reduced, varied or cancelled in accordance with the terms of this
Agreement.
"Facility Office" means the office notified by a Lender to the Agent in
writing on or before the date it becomes a Lender by execution of this
Agreement (in the case of a Lender listed in Schedule 1 (The Original
Lender)) or in the case of any other Lender, in the relevant Transfer
Certificate (or, thereafter, by not less than five Business Days'
written notice to the Agent) as the office through which it will
perform its obligations under this Agreement.
"Fallback Period" means, in respect of the Borrower's selection of an
Interest Period of 6 Months or longer, the shorter fallback Interest
Period of 1, 2 or 3 Months as selected by the Borrower in a Drawdown
Notice which is to apply if not all the Lenders consent to an Interest
Period of 6 Months or longer.
"Fee Letter" means the letter between the Co-ordinating Arranger and
the Borrower dated on or about the date of this Agreement setting out
the relevant fees referred to in clause 10 (Fees).
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"Final Repayment Date" means the date falling 72 Months after the date
of this Agreement.
"Finance Documents" means this Agreement, the Fee Letter, any
subordination deed or inter-creditor agreement entered into by or on
behalf of the Lenders in respect of any Subordinated Indebtedness and
any other document designated as such by the Agent and the Borrower and
"Finance Document" means each or any of them as the context may
require.
"Finance Parties" means the Agent, the Co-ordinating Arranger and the
Lenders.
"Financial Statements" means the Original Financial Statements and the
financial statements provided by the Borrower to the Agent pursuant to
clause 17.1 (Financial Statements) and "Financial Statement" means any
of the same.
"Financial Year" means the twelve month period ending on 31 March in
each year or such other date as the Borrower may designate at its
discretion and notify to the Agent by not less than three Months prior
written notice or such shorter period as the Majority Lenders may
agree.
"FTNS Licence" means the fixed telecommunications network services
licence issued by the Telecommunications Authority to the Borrower on
29 June 1995 (and amended on 31 March 1998 to include the Borrower,
Reach Networks Hong Kong Limited (formerly known as PCCW-HKT
International Limited) ("Reach") and PCCW-HKT CAS Limited as joint and
several licensees and as further amended effective on 31 January 2001
such that the Borrower and Reach are no longer joint licensees but
rather are individual licensees in relation to FTNS licence held by
each of them and PCCW-HKT CAS Limited has surrendered its rights under
the joint and several licence) or any replacement or amendment thereof.
"Group" means the Parent and each of its Subsidiaries from time to time
and "Group Company" means each or any of them as the context may
require.
"Group Subordination Deed" means each deed of subordination executed by
the Borrower, the relevant Borrower Group Company (as borrower of the
relevant Inter-Group Borrowing) and the relevant Group Company (as
lender of the relevant Inter-Group Borrowing) in the Agreed Terms in
respect of such Inter-Group Borrowing.
"HIBOR" means, in relation to a Loan or any Unpaid Sum:
(A) the Screen Rate; or
(B) (if no Screen Rate is available for Hong Kong Dollars or for a
period comparable to the relevant Interest Period for that
Loan or Unpaid Sum) the arithmetic mean of the rates (rounded
upwards to 1/16%) as supplied to the Agent at its request
quoted by the Reference Banks to leading banks in the Hong
Kong interbank market,
as at 11:00 a.m. on the Quotation Day for the offering of deposits in
Hong Kong Dollars for a period comparable to that Interest Period for
such Loan or Unpaid Sum.
"Holding Company" means, in relation to a company or corporation, any
company or corporation of which the first-mentioned company or
corporation is a Subsidiary.
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"Hong Kong" means the Hong Kong Special Administrative Region of the
People's Republic of China.
"Hong Kong Dollars" or "HK$" means the lawful currency for the time
being of Hong Kong.
"Hong Kong GAAP" means generally accepted accounting principles in Hong
Kong.
"Indebtedness" of any person means any indebtedness for or in respect
of Borrowed Money that has a final maturity of one year or more from
its date of incurrence or issuance and that is evidenced by any
agreement or other instrument, excluding trade payables; provided,
however, that for the purpose of determining the amount of Indebtedness
of any Borrower Group Company outstanding at any relevant time, the
amount included as Indebtedness of such Borrower Group Company in
respect of finance leases shall be the net amount from time to time
properly characterised as "obligations under finance leases" in
accordance with Hong Kong GAAP.
"Inter-Group Borrowing" means any Indebtedness of any Borrower Group
Company owed to any other Group Company other than any Indebtedness
owing by any Borrower Group Company to another Borrower Group Company.
"Interest Payment Date" means the last day of an Interest Period.
"Interest Period" means, in relation to a Loan, each period determined
in accordance with clause 8 (Interest Periods) and, in relation to an
Unpaid Sum, each period determined in accordance with clause 7.3
(Default interest rate).
"Lender" means:
(A) any Lender listed in Schedule 1 (The Original Lender); and
(B) any bank or financial institution which has become a party in
accordance with clause 21 (Changes to the Lenders),
which in each case has not ceased to be a party in accordance with the
terms of this Agreement.
"Listed Principal Subsidiary" means any Principal Subsidiary of the
Borrower, the shares of which are at the relevant time listed on The
Stock Exchange of Hong Kong Limited or any other recognised stock
exchange.
"Loan" means a loan made or to be made under the Facility or the
principal amount outstanding for the time being of that loan.
"Majority Lenders" means:
(A) if there is no Loan then outstanding, a Lender or Lenders
whose Commitment(s) amount in aggregate to 66 2/3 % or more of
the Total Commitments (or, if the Total Commitments have been
reduced to zero, amounted in aggregate to 66 2/3 % or more of
the Total Commitments immediately prior to the reduction); or
(B) at any other time, a Lender or Lenders whose participations in
the Loans amount in aggregate to 66 2/3 % or more of all
Loans.
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"Margin" means 0.325% per annum.
"Material Adverse Change" means an event or circumstance which
constitutes an adverse change in the business, assets, financial
condition or trading position of the Borrower Group of such
significance that, in the reasonable opinion of the Majority Lenders,
it would reasonably be expected to affect the ability of the Borrower
to perform fully and punctually its payment obligations under this
Agreement.
"Material Adverse Effect" means any change in the financial condition
of the Borrower Group which, in the reasonable opinion of the Majority
Lenders will, or could reasonably be expected to, have a material and
adverse effect on the business, assets or financial condition of the
Borrower Group or which will have a material adverse effect on the
ability of the Borrower to perform fully and punctually its payment
obligations under this Agreement.
"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.
"Original Financial Statements" means the audited consolidated
financial statements of the Borrower Group for the Financial Year ended
31 March 2003.
"Original Lender" means the Lender whose details are set out in
Schedule 1 (The Original Lender) to this Agreement.
"Parent" means PCCW Limited, a company incorporated in Hong Kong with
company number 69030.
"Permitted Encumbrances" means:
(A) Encumbrances existing on or prior to the date of this Agreement
details of which have been disclosed to the Agent pursuant to
paragraph 3(D) of Schedule 2 (Conditions Precedent);
(B) Encumbrances for Taxes or assessments or other applicable
governmental charges or levies;
(C) Encumbrances created or arising by operation of law or created in
the ordinary course of business, including, but not limited to,
landlords' liens and statutory liens of carriers, warehousemen,
mechanics, materialmen, vendors and other liens securing amounts
which are not more than 60 days overdue or which are being
contested in good faith;
(D) Encumbrances incurred on deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security or to secure the
performance of tenders, statutory obligations,
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surety and appeal bonds, bids, leases, government contracts or
undertakings, performance and return of money bonds,
interconnection, access or resale agreements with other
telecommunications companies or organisations and similar
obligations;
(E) easements, rights-of-way, zoning and similar restrictions and
other similar charges or encumbrances not interfering with the
ordinary conduct of the business of the Borrower or any of its
Principal Subsidiaries;
(F) Encumbrances created on any property or assets acquired, leased or
developed (including improved, constructed, altered or repaired)
after the date of this Agreement; provided that (1) any such
Encumbrance shall be confined to the property or assets acquired,
leased or developed (including improved, constructed, altered or
repaired); (2) the principal amount of the debt encumbered by such
Encumbrance shall not exceed the cost of the acquisition or
development of such property or assets or any improvements thereto
(including any construction, repair or alteration) or thereon and
(3) any such Encumbrance shall be created concurrently with or
within three years following the acquisition, lease or development
(including construction, improvement, repair or alteration) of
such property or assets;
(G) rights of set-off of a financial institution with respect to
deposits or other accounts of the Borrower or any of its Principal
Subsidiaries held by such financial institution in an amount not
to exceed the aggregate amount owed to such financial institution
by the Borrower or such Principal Subsidiary, as the case may be;
(H) Encumbrances on documents and the goods they represent in
connection with letters of credit, trade finance and similar
transactions entered into in the ordinary course of business;
(I) Encumbrances arising in connection with industrial revenue,
development or similar bonds or other indebtedness or means of
project financing (not to exceed the value of the project financed
and limited to the project financed);
(J) Encumbrances in favour of the Borrower or any of its Principal
Subsidiaries;
(K) leases, subleases, licences and sublicences granted to third
parties in the ordinary course of business;
(L) attachment, judgment and other similar Encumbrances arising in
connection with court proceedings which are effectively stayed
while the underlying claims are being contested in good faith by
appropriate proceedings;
(M) any Encumbrance against any property or assets of a person
existing at the time such person becomes a Principal Subsidiary of
the Borrower or arising after such acquisition pursuant to
contractual commitments entered into prior to and not in
contemplation of such acquisition;
(N) any Encumbrance existing on any property or assets prior to the
acquisition thereof, which Encumbrance was not created in
connection with the acquisition thereof, except for Encumbrances
permitted pursuant to paragraph (F) above;
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(O) Encumbrances on any property or assets of the Borrower or any of
its Principal Subsidiaries in favour of any government or any
subdivision thereof, securing the obligations of the Borrower or
such Principal Subsidiary under any contract or payment owed to
such governmental entity pursuant to applicable laws, rules,
regulations or statutes;
(P) Encumbrances created in connection with any sale/leaseback
transaction;
(Q) any renewal or extension of any of the Encumbrances described in
the foregoing paragraphs which is limited to the original property
or assets covered thereby; or
(R) Encumbrances in respect of indebtedness with respect to which the
Borrower or its Principal Subsidiaries has paid money or deposited
money or securities with a fiscal agent, trustee or depository to
pay or discharge in full the obligations of the Borrower and its
respective Subsidiaries in respect thereof (other than the
obligations that such money or securities so paid or deposited,
and the proceeds therefrom, be sufficient to pay or discharge such
obligations in full).
"Potential Event of Default" means any event or circumstance which
would (with the expiry of a grace period, the giving of notice or the
making of any determination under the Finance Documents or any
combination of any of the foregoing) be or constitute an Event of
Default.
"Principal Subsidiary" means a Subsidiary of the Borrower:
(A) as to which one or more of the following conditions is satisfied:
(1) its net profit or (in the case of a Subsidiary of the
Borrower which has Subsidiaries) consolidated net
profit attributable to the Borrower (in each case
before taxation and exceptional items) is at least 5%
of the consolidated net profit (before taxation and
exceptional items but after deducting minority
interests in Subsidiaries) of the Borrower and its
Subsidiaries; or
(2) its net assets or (in the case of a Subsidiary of the
Borrower which has Subsidiaries) consolidated net
assets attributable to the Borrower (in each case
after deducting minority interests in Subsidiaries)
are at least 5% of the consolidated net assets (after
deducting minority interests in Subsidiaries) of the
Borrower and its Subsidiaries,
all as calculated by reference to the then latest audited
financial statements (consolidated or, as the case may be,
unconsolidated) of the Subsidiary of the Borrower and the then
latest audited financial statements of the Borrower provided
that:
(a) in the case of a Subsidiary of the Borrower acquired after
the end of the financial period to which the then latest
relevant audited accounts relate, the reference to the then
latest audited accounts for the purposes of the calculation
above shall, until audited accounts for the financial
period in which the acquisition is made are published, be
deemed to be a reference to the accounts adjusted to
consolidate the latest audited accounts of the Subsidiary
in the accounts;
9
(b) if, in the case of a Subsidiary of the Borrower which
itself has one or more Subsidiaries, no consolidated
accounts are prepared and audited, its consolidated net
assets and consolidated net profits shall be determined on
the basis of pro forma consolidated accounts of the
relevant Subsidiary and its Subsidiaries prepared for this
purpose by its auditors;
(c) if the accounts of a Subsidiary of the Borrower (not being
a Subsidiary referred to in paragraph (a) above) are not
consolidated with those of the Borrower then the
determination of whether or not the Subsidiary of the
Borrower is a Principal Subsidiary shall, if the Borrower
requires, be based on a pro forma consolidation of its
accounts (consolidated, if appropriate) with the
consolidated accounts of the Borrower and its respective
Subsidiaries; or
(B) to which is transferred all or substantially all of the assets of
a Subsidiary of the Borrower which immediately prior to the
transfer was a Principal Subsidiary, provided that, with effect
from such transfer, the Subsidiary which so transfers its assets
and undertakings shall cease to be a Principal Subsidiary (but
without prejudice to paragraph (A) above) and the Subsidiary of
the Borrower (as the case may be) to which the assets are so
transferred shall become a Principal Subsidiary.
A certificate of the auditors of the Borrower as to whether or not a
Subsidiary is a Principal Subsidiary shall be conclusive and binding on
all parties in the absence of manifest error.
"Quotation Day" means, in relation to any Interest Period in respect of
a Loan or any Unpaid Sum, the first day of that Interest Period.
"Reference Banks" means, subject to clause 21.6 (Reference Banks), the
principal Hong Kong offices of Industrial and Commercial Bank of China
(Asia) Limited and such other banks as may be appointed by the Agent in
consultation with the Borrower.
"Relevant Percentage" means, at any time in relation to any Lender and
any amount to be advanced to the Borrower under the Facility, the
percentage borne by that Lender's Commitment to the Total Commitments.
"Reservations" means:
(A) the principle that equitable remedies are remedies which may
be granted or refused at the discretion of the court;
(B) the limitation of enforcement by laws relating to bankruptcy,
insolvency, liquidation, reorganisation, court schemes,
moratoria, administration and other laws generally affecting
the rights of creditors;
(C) the time barring of claims under statutes, imposed limitations
on the periods for bringing such claims;
(D) defences of set-off or counterclaim and similar principles,
rights and defences under the laws of any jurisdictions in
which relevant obligations may have to be performed.
"Rollover Loan" means a Loan:
10
(A) made or to be made on the same day that one or more maturing
Loans are due to be repaid; and
(B) the amount of which is equal to or less than the aggregate
amount of such maturing Loans.
"Screen Rate" means the percentage rate per annum equal to the rate for
deposits in Hong Kong Dollars which is displayed on the Moneyline
Telerate Page 9898, provided that if the relevant page is replaced or
service ceases to be available, the Agent may specify another page or
service displaying the appropriate rate after consultation with the
Borrower and all of the Lenders.
"Subordinated Indebtedness" means the indebtedness of any Borrower Group
Company which is subordinated to the Borrower's indebtedness under this
Agreement pursuant to a Group Subordination Deed or a Third Party
Subordination Deed.
"Subsidiary" means, in relation to any company, any company or other
business entity of which the first-named company owns or controls
(either directly or through one or more other Subsidiaries) more than
50% of the issued share capital, or other ownership interest, giving
ordinary voting power to elect directors, managers or trustees of such
company or other business entity, or any company or other business
entity which at any time has its accounts consolidated with those of
the first-named company or which, under Hong Kong law or regulations
and under Hong Kong GAAP from time to time, should have its accounts
consolidated with those of the first-named company.
"Tax" means any tax, levy, impost, duty or other charge or withholding
of a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the
same).
"Telecommunications Authorisation" means the licences (including the
FTNS Licence) and statutory authorisations under the Telecommunications
Regulations and other consents, approvals, intellectual property, trade
names, franchises and contracts of a regulatory nature which are
material and necessary for the conduct by the Borrower Group of the
Core Business.
"Telecommunications Authority" means the Telecommunications Authority of
Hong Kong.
"Telecommunications Ordinance" means the Telecommunications Ordinance
(Chapter 106 of the Laws of Hong Kong).
"Telecommunications Regulations" the Telecommunications Ordinance, all
licences issued to the Borrower Group pursuant to the
Telecommunications Ordinance (including the FTNS Licence) and any
determinations or directions issued to the Borrower Group which
continue to have full force and effect as against the Borrower Group
and are not otherwise waived or revoked by the Telecommunications
Authority.
"Termination Date" means the last day of the Availability Period.
"Third Party Borrowing" means any Indebtedness of any Borrower Group
Company owed to any party which is not a Group Company.
"Third Party Subordination Deed" means each deed of subordination
executed by the Borrower, the relevant Borrower Group Company (as
borrower of the relevant Third Party
11
Borrowing) and any lender (or any agent on behalf of a syndicate of
lenders) of such Third Party Borrowing in the Agreed Terms in respect of
such Third Party Borrowing.
"Total Commitments" means the aggregate for the time being of the
Commitments, being, at the date of this Agreement, HK$2,000,000,000.
"Transfer Certificate" means a certificate substantially in the form
set out in Schedule 4 (Form of Transfer Certificate).
"Transfer Date" means, in relation to a transfer, the later of:
(A) the proposed Transfer Date specified in the Transfer Certificate;
and
(B) the date on which the Agent executes the Transfer Certificate.
"Unpaid Sum" means any sum due and payable but unpaid by the Borrower
under the Finance Documents.
"US$" means the lawful currency for the time being of the United States
of America.
1.2 Construction
(A) Any reference in this Agreement to:
(1) "assets" of any person shall be construed as a reference to
the whole or any part of its business, undertaking,
property, shareholdings, assets and revenues (including any
right to receive revenues and uncalled capital), whether
owned as at the date of this Agreement or acquired or owned
thereafter;
(2) a "Finance Document" or any other agreement or instrument
is a reference to that Finance Document or other agreement
or instrument as amended supplemented, varied, replaced,
restated or novated from time to time;
(3) "indebtedness" includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of
money, whether present or future, actual or contingent;
(4) a "person" means any individual, corporation, partnership,
joint venture, association, joint stock company, trust,
unincorporated organisation, government or any agency or
political sub-division thereof or any other entity;
(5) a "regulation" includes any regulation, rule, official
directive, request or guideline (whether or not having the
force of law) of any governmental, intergovernmental or
supranational body, agency, department or regulatory,
self-regulatory or other authority or organisation;
(6) a provision of law is a reference to that provision as
amended or re-enacted;
(7) unless a contrary indication appears, a time of day is a
reference to Hong Kong time;
(8) one gender shall include all genders, and references to the
singular shall
12
include the plural and vice versa;
(9) "arm's length terms" means, in relation to transactions
entered into by a Borrower Group Company, that the terms
thereof are no less favourable to that Borrower Group
Company than could reasonably be expected to be obtained in
a comparable transaction with a person which is not an
Affiliate of such Borrower Group Company;
(10) subject to clause 21 (Changes to the Lenders), references
to any "party" shall, where relevant, be deemed to be
references to or to include, as appropriate, their
respective lawful successors, assigns or transferees;
(11) "advance" means the making of a Loan pursuant to a Drawdown
Notice;
(12) a Lender includes a New Lender, but excludes a Lender if no
amount is or may be owed to or by that Lender under this
Agreement and its Commitment has been cancelled or reduced
to nil; and
(13) the "equivalent" means in respect of any sum on any given
date, in a specified currency (the "first currency") of an
amount denominated in another currency (the "other
currency") and unless otherwise stated, reference to the
amount of the first currency which could be purchased with
the second currency at the rate of exchange quoted by the
Agent at or about 11:00 a.m. on such date for the purchase
of the first currency with the other currency.
(B) Section, clause and Schedule headings are for ease of reference
only.
(C) Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection
with any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement.
PART 2: THE FACILITY
2. THE FACILITY
2.1 The Facility
Subject to the terms of this Agreement, the Lenders agree to make
available to the Borrower a Hong Kong Dollar revolving loan facility in
an aggregate amount equal to the Total Commitments.
2.2 Finance Party's rights and obligations
(A) The obligations of each Finance Party under the Finance
Documents are several. Failure by a Finance Party to perform
its obligations under the Finance Documents does not affect
the obligations of any other party under the Finance
Documents. No Finance Party is responsible for the obligations
of any other Finance Party under the Finance Documents.
(B) The rights of each Finance Party under or in connection with
the Finance Documents are separate and independent rights and
any debt arising under the
13
Finance Documents to a Finance Party from the Borrower shall be a
separate and independent debt.
(C) A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance
Documents.
3. PURPOSE
3.1 Purpose
The Borrower shall apply all amounts borrowed by it under the Facility
towards the general corporate purposes of the Borrower Group.
3.2 Monitoring
Without prejudice to the obligations of the Borrower under clause 3.1
(Purpose), no Finance Party is bound to monitor or verify the
application of any amount borrowed pursuant to this Agreement.
4. CONDITIONS OF ADVANCE
4.1 Initial conditions precedent
The Borrower may not deliver a Drawdown Notice unless the Agent has
received all of the documents appearing to conform on their face to
those listed in Schedule 2 (Conditions Precedent). The Agent shall
notify the Borrower and the Lenders promptly upon such receipt.
4.2 Further conditions precedent
The Lenders will make an advance to the Borrower if:
(A) Drawdown Notice: the Agent shall have received a Drawdown
Notice, not later than 10:00 a.m. (or such later time on the
same day as the Agent may agree) not less than 3 Business Days
before the proposed Drawdown Date and the proposed Drawdown
Date is a Business Day which is or precedes the Termination
Date;
(B) Amount: the amount of the proposed Loan shall be:
(1) equal to the Available Facility; or
(2) less than the Available Facility and a minimum of
HK$100,000,000 and a multiple of HK$10,000,000;
(C) Representations, etc, true: the representations and warranties
referred to and deemed to be repeated in accordance with
clause 16.18 (Repetition) are true and accurate in all
material respects on the proposed Drawdown Date with reference
to the facts and circumstances then existing;
(D) No Default: in the case of a Rollover Loan, no Event of
Default is Continuing or would result from the proposed
advance and, in the case of any other Loan, no Default is
Continuing or would result from the proposed advance;
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(E) No market disruption: in the case of a Loan other than a
Rollover Loan, none of the events described in clause 9.2
(Market disruption and alternative interest rates) has
occurred and is continuing;
(F) No Material Adverse Change: in the case of a Loan other than a
Rollover Loan, no Material Adverse Change has occurred since
the date of this Agreement or, if later, the date of the
latest Financial Statements delivered to the Agent under
clause 17.1 (Financial Statements); and
(G) Interest Period: the proposed Interest Period is determined
pursuant to clause 8.1 (Selection of Interest Periods).
4.3 Drawdown Notice irrevocable
Each Drawdown Notice shall be irrevocable and the Borrower shall be
bound, to the extent that the other provisions of this Agreement
permit, to draw down in accordance with such Drawdown Notice.
4.4 Notification of Drawdown Notice
Upon receipt of a Drawdown Notice in accordance with this clause 4
(Conditions of Advance), the Agent shall promptly notify each Lender of
the proposed Drawdown Date and the amount of each Lender's Relevant
Percentage and subject to and in accordance with the provisions of this
Agreement, each Lender shall make available through its Facility Office
its Relevant Percentage of the proposed Loan on the proposed Drawdown
Date in accordance with clause 4.5 (Payment of loan proceeds).
4.5 Payment of loan proceeds
All amounts to be made available by the Lenders under clause 4.4
(Notification of Drawdown Notice) shall be made available not later
than 11:00 a.m. on the proposed Drawdown Date in Hong Kong Dollars in
immediately available and freely transferable cleared funds by
remittance to such account specified by the Agent under clause 27.1
(Payments to the Agent).
PART 3: REPAYMENT, CANCELLATION AND PREPAYMENT
5. REPAYMENT
(A) Subject to paragraph (C) below, the Borrower shall repay each
Loan on the last day of its Interest Period.
(B) Subject to the terms of this Agreement, any amount repaid
pursuant to paragraph (A) above may be reborrowed.
(C) If all or part of a Loan is to be repaid from the proceeds of
all or part of a Rollover Loan, then as between each Lender
and the Borrower, the amount to be repaid by the Borrower
shall be set-off against the amount of such Rollover Loan and
the party to whom the smaller amount is to be paid shall pay
to the other party (through the Agent in accordance with
clause 27.1 (Payments to the Agent)) a sum equal to the
difference between the two amounts.
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(D) Any amount which remains outstanding under the Facility on the
Final Repayment Date shall be repaid in full on such date.
6. CANCELLATION AND PREPAYMENT
6.1 Mandatory cancellation
Any part of the Facility which remains undrawn at the end of the
Availability Period shall be automatically and immediately cancelled
and each Lender's undrawn Commitment shall at that time be reduced to
zero.
6.2 Voluntary cancellation
The Borrower may cancel the whole or any part of the Available Facility
without any penalty if:
(A) it has given to the Agent not less than 5 days' (or such shorter
period as the Majority Lenders may agree) prior written notice of
the date and the amount of the cancellation; and
(B) in the case of cancellation of part of the Available Facility, the
amount cancelled shall be a minimum of HK$100,000,000 and
thereafter in integral multiples of HK$10,000,000.
6.3 Right of prepayment and cancellation in relation to a single Lender
(A) If:
(1) any sum payable to any Lender by the Borrower is required
to be increased under paragraph (C) of clause 11.2 (Tax
gross-up); or
(2) any Lender claims indemnification from the Borrower under
clause 11.3 (Indemnity) or clause 12.1 (Increased Costs),
the Borrower may, whilst the circumstance giving rise to the
requirement or indemnification continues, give the Agent notice of
cancellation of the Commitment of that Lender and its intention to
procure the prepayment of that Lender's participation in all the
Loans.
(B) On receipt of a notice from the Borrower by the Agent referred to
in paragraph (A) above, the Commitment of that Lender shall
immediately be reduced to zero.
(C) On the last day of each Interest Period which ends after the
Borrower has given notice under paragraph (A) above (or, if
earlier, the date specified by the Borrower in that notice), the
Borrower shall prepay that Lender's participation in all the Loans
to which such Interest Period relates.
6.4 Restrictions
(A) Any notice of cancellation or prepayment given by the Borrower
under this clause 6 shall be irrevocable and, unless a contrary
indication appears in this Agreement, shall specify the date or
dates upon which the relevant cancellation or prepayment is to be
made and the amount of that cancellation or prepayment. Any
cancellation
16
or prepayment under this clause 6 (other than clause 6.3, where
only the Commitment of the relevant Lender shall be reduced) in
part shall reduce the Commitment of each Lender under the Facility
rateably.
(B) Any part of the Facility which is prepaid may be reborrowed in
accordance with the terms of this Agreement.
(C) The Borrower shall not 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.
(D) No Commitment cancelled (in whole or in part) under this Agreement
may be subsequently reinstated.
(E) If the Agent receives a notice under this clause 6, it shall
promptly forward a copy of that notice to the Borrower or the
affected Lender, as appropriate.
PART 4: COSTS OF ADVANCE
7. INTEREST
7.1 Calculation of interest
(A) Subject as provided in clauses 7.3 (Default interest rate) and 9.2
(Market disruption and alternative interest rates), the rate of
interest applicable to each Loan for each Interest Period relating
to it is the percentage rate per annum which is the aggregate of
the applicable (1) HIBOR and (2) the Margin.
(B) Interest in respect of any Loan shall accrue from day to day and
shall be calculated on the basis of the actual number of days
elapsed and a year of 365 days from and including the first day of
the relevant Interest Period to and excluding the last day of such
Interest Period.
7.2 Payment of interest
The Borrower shall pay accrued interest on each Loan on the Interest
Payment Date relating to it (and, if the Interest Period is longer than
six Months, on the dates falling at six Monthly intervals after the
first day of such Interest Period).
7.3 Default interest rate
(A) If the Borrower fails to pay any amount payable by it under a
Finance Document on its due date, interest shall accrue on the
Unpaid Sum from the due date up to the date of actual payment
(both before and after judgment) at a rate 1% per annum higher
than the rate which would have been payable if the Unpaid Sum had,
during the period of non-payment, constituted a Loan for
successive Interest Periods, each of a duration selected by the
Agent (acting in good faith and reasonably). Any interest accruing
under this clause 7.3 shall be immediately payable by the Borrower
on demand by the Agent.
(B) Default interest (if unpaid) arising on an Unpaid Sum will be
compounded with the
17
Unpaid Sum at the end of each Interest Period applicable to that
Unpaid Sum but will remain immediately due and payable.
7.4 Notification of rates of interest
The Agent shall promptly (and in any event no later than 5:00 p.m. on
the Quotation Day for any Interest Period) notify the Lenders and the
Borrower of the determination of a rate of interest under this
Agreement for such Interest Period.
8. INTEREST PERIODS
8.1 Selection of Interest Periods
(A) The Borrower may select the Interest Period for a Loan in the
Drawdown Notice for such Loan.
(B) Each Drawdown Notice must be delivered to the Agent by the
Borrower not later than 10:00 a.m. on or before the day falling 3
Business Days before the first day of the relevant Interest
Period. Where the Borrower selects an Interest Period of 6 Months
or longer (if available):
(1) the Borrower shall specify a Fallback Period;
(2) the Agent shall request in its notice of the receipt of the
Drawdown Notice to the Lenders, that each Lender notify the
Agent by no later than 11:00 a.m. on the first Business Day
immediately following the date of such notice from the
Agent of its consent to the Borrower's selection of such 6
Month or longer period; and
(3) if the Agent does not receive the consent of the Lenders by
the designated time, the Lenders shall be deemed to have
rejected such 6 Month or longer Interest Period selected by
the Borrower but accepted the Fallback Period which shall
be deemed to have been selected by the Borrower. The Agent
shall inform the Borrower and the Lenders promptly after
the designated time whether the Fallback Period is deemed
to have been selected or not (as the case may be).
(C) If the Borrower fails to specify a Fallback Period to the Agent in
accordance with paragraph (B) above, the relevant Fallback Period
will (in the absence of any contrary agreement) be 1 Month.
(D) Subject to this clause 8, the Borrower may select an Interest
Period of 1, 2, 3 or (if available) 6 Months or any other period
agreed between the Borrower and the Agent (acting on the
instructions of all the Lenders).
(E) Any Interest Period for a Loan which would otherwise extend beyond
the Final Repayment Date shall be of such duration that it shall
end on the Final Repayment Date.
(F) Each Interest Period shall start on the relevant Drawdown Date.
(G) A Loan has one Interest Period only.
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9. CHANGES TO THE CALCULATION OF INTEREST AND BREAK COSTS
9.1 Absence of quotations
Subject to clause 9.2 (Market disruption and alternative interest
rates), if HIBOR is to be determined by reference to the Reference
Banks but a Reference Bank does not supply a quotation by 12:00 noon on
the Quotation Day, HIBOR shall be determined on the basis of the
quotations of the remaining Reference Banks (if more than one).
9.2 Market disruption and alternative interest rates
(A) If a Market Disruption Event (as defined below) occurs in relation
to a Loan for its Interest Period, then:
(1) the Agent shall promptly notify the Borrower and the
Lenders accordingly giving full details of the
circumstances relevant to such notification;
(2) the Agent (on behalf of the Lenders) and after consultation
with the Lenders shall, within five Business Days of such
notice, commence negotiations with the Borrower with a view
to agreeing a mutually acceptable substitute basis on which
such Loan or Unpaid Sum may be maintained;
(3) any substitute basis agreed in writing by the Agent (on
behalf of and with the consent of all of the Lenders) and
the Borrower within 30 days of such notice shall take
effect in accordance with its terms and interest shall be
calculated as if the substitute basis had come into effect
from the beginning of the relevant Interest Period;
(4) if no agreement is reached within 30 days, each Lender's
participation in such Loan shall during that Interest
Period bear interest at the annual rate equal to the cost
to that Lender (as certified by it to the Borrower within
10 days of the end of that 30 day period and expressed as a
percentage rate per annum) of funding its portion of such
Loan, during that Interest Period by whatever means that
Lender reasonably determines to be most appropriate
(provided that each Lender shall use its reasonable
endeavours to obtain the cheapest source of funding
reasonably available to it) plus the prevailing Margin
(5) any substitute basis determined in accordance with this
clause 9.2 shall take effect until such time as the Agent
notifies the Borrower and the Lenders that none of the
circumstances previously notified to the Borrower and the
Lenders continue to exist whereupon the normal interest
rate fixing provisions of clause 7.1 (Calculation of
interest) shall apply as from the Quotation Day for the
next Interest Period.
(B) In this Agreement "Market Disruption Event" means:
(1) at or about 12:00 noon on the Quotation Day for the
relevant Interest Period the applicable Screen Rate is not
available and none or only one of the Reference Banks
supplies a rate to the Agent to determine HIBOR for the
relevant period; or
19
(2) at or before 4:00 p.m. on the Quotation Day for the
relevant Interest Period, the Agent receives notifications
from a Lender or Lenders (whose participations in the Loans
exceed 35% of the aggregate outstanding) that the cost to
it or them of obtaining matching deposits in the Hong Kong
interbank market would be in excess of HIBOR; or
(3) at or about 12:00 noon on the Quotation Day for the
relevant Interest Period the Agent reasonably determines
that, by reason of circumstances affecting the Hong Kong
interbank market, adequate and fair means do not or will
not exist for determining the rate of interest applicable
to such Interest Period.
9.3 Break Costs
(A) The Borrower shall, within five Business Days of demand by a
Finance Party, pay to that Finance Party its Break Costs
attributable to all or any part of 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.
(B) Each Lender shall, as soon as reasonably practicable after a
demand by the Agent or the Borrower, provide a letter to the
Agent and the Borrower certifying the amount of its Break
Costs for any Interest Period in which they accrue.
10. FEES
10.1 Facility fee
The Borrower shall pay to the Agent (for the account of each Lender in
respect of its Commitment) a facility fee at the rate of 0.275 per
cent. per annum and calculated on the amount of the Total Commitments
from time to time, such fee to be payable (1) quarterly in arrears,
with the first payment being made on the day falling 3 months after the
date of this Agreement and (2) on the day on which all Loans have been
repaid in full and the Available Facility is cancelled and reduced to
zero.
10.2 Front-end fee
The Borrower shall pay to the Co-ordinating Arranger a front-end fee in
the amount and at the time agreed in the Fee Letter.
PART 5: ADDITIONAL PAYMENT OBLIGATIONS
11. TAX GROSS UP AND CREDIT
11.1 Definitions
(A) In this clause 11:
"Protected Party" means a Finance Party which is or will be,
for or on account of Tax, subject to any liability or required
to make any payment in relation to a sum received or
receivable (or any sum deemed for the purposes of Tax to be
received or receivable) under a Finance Document.
20
"Tax Credit" means a credit against, relief or remission for,
or repayment of any Tax.
"Tax Deduction" means a deduction or withholding for or on
account of Tax from a payment under a Finance Document.
"Tax Payment" means an increased payment made by the Borrower
to a Finance Party under clause 11.2 (Tax gross-up).
(B) In this clause 11, a reference to "determines" or "determined"
means a determination made in the discretion of the person
making the determination (acting reasonably).
11.2 Tax gross-up
(A) The Borrower shall make all payments to be made by it without
any Tax Deduction, unless a Tax Deduction is required by law.
(B) The Borrower or a Lender shall promptly upon becoming aware
that the Borrower must make a Tax Deduction (or that there is
any change in the rate or the basis of a Tax Deduction) notify
the Agent accordingly. If the Agent receives such notification
from a Lender it shall notify the Borrower.
(C) If a Tax Deduction is required by law to be made by the
Borrower, the amount of the payment due from the Borrower
shall be increased to an amount which (after making any Tax
Deduction) leaves an amount equal to the payment which would
have been due if no Tax Deduction had been required.
(D) If the Borrower is required to make a Tax Deduction, the
Borrower shall make that Tax Deduction and any payment
required in connection with that Tax Deduction within the time
allowed in the minimum amount required by law.
(E) Within thirty days of making either a Tax Deduction or any
payment required in connection with that Tax Deduction or of
receiving a receipt from the relevant tax authority in respect
of any such payment, the Borrower shall deliver to the Agent
for the Finance Party entitled to the payment evidence
reasonably satisfactory to that Finance Party that the Tax
Deduction has been made or (as applicable) any appropriate
payment paid to the relevant taxing authority.
11.3 Indemnity
(A) The Borrower shall (within 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 in relation to a sum received or receivable (or
any sum deemed for the purposes of Tax to be received or
receivable) under a Finance Document provided that such loss,
liability or cost is not due to any delay or non-compliance by
that Protected Party.
(B) Paragraph (A) above shall not apply with respect to any Tax
assessed on a Finance Party:
21
(1) under the law of the jurisdiction in which that Finance
Party is incorporated or, if different, the jurisdiction
(or jurisdictions) in which that Finance Party is treated
as resident for tax purposes or carries on a business for
tax purposes; or
(2) under the law of the jurisdiction in which that Finance
Party's Facility Office is located in respect of amounts
received or receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the
net income received or receivable (but not any sum deemed to
be received or receivable) by that Finance Party;
(C) A Protected Party making, or intending to make a claim
pursuant to paragraph (A) above shall promptly notify the
Agent of the event which will give, or has given, rise to the
claim, following which the Agent shall notify the Borrower.
(D) A Protected Party shall, on receiving a payment from the
Borrower under this clause 11.3, notify the Agent.
11.4 Tax Credit
If the Borrower makes a Tax Payment and the relevant Finance Party
determines in good faith that:
(A) a Tax Credit is attributable to that Tax Payment; and
(B) that Finance Party has obtained, utilised and retained that Tax
Credit,
that Finance Party shall pay an amount to the Borrower which that
Finance Party determines in good faith will leave it (after that
payment) in the same after-Tax position as it would have been in had
the Tax Payment not been made by the Borrower.
Nothing in this clause 11.4 shall interfere with the right of a Finance
Party to arrange its Tax affairs in whatever manner it thinks fit. No
Finance Party shall be obliged to disclose any information relating to
its Tax affairs or any computations in respect thereof.
11.5 Stamp taxes
The Borrower shall pay and, within five Business Days of demand,
indemnify each Finance Party against any cost, loss or liability that
Finance Party incurs in relation to all stamp duty, registration and
other similar Taxes payable in respect of any Finance Document or any
judgment given in connection with them against the Borrower and shall
indemnify each of the Finance Parties against any and all liabilities,
including penalties, with respect to or resulting from its delay or
omission to pay promptly following a request from a Finance Party any
such stamp, registration and similar taxes or charges.
12. INCREASED COSTS
12.1 Increased Costs
(A) Subject to clause 12.3 (Exceptions) the Borrower shall, within
five Business Days of a demand by the Agent, pay for the
account of a Finance Party the amount of
22
any Increased Costs (as defined below) incurred by that Finance
Party or any of its Affiliates as a result of (1) the introduction
of or any change in (or in the interpretation or application of)
any law or regulation or (2) compliance with any applicable law or
regulation made after the date of this Agreement.
(B) In this Agreement, "Increased Costs" means:
(1) a reduction in the rate of return from the Facility or
on a Finance Party's (or its Affiliate's) overall
capital;
(2) an additional or increased cost; or
(3) a reduction of any amount due and payable under any
Finance Document,
which is incurred or suffered by a Finance Party or any of its
Affiliates to the extent that it is attributable to that
Finance Party having entered into its Commitment or funding or
performing its obligations under any Finance Document.
12.2 Increased Costs claims
(A) A Finance Party intending to make a claim pursuant to clause
12.1 (Increased Costs) shall notify the Agent of the event
giving rise to the claim, following which the Agent shall
promptly notify the Borrower.
(B) Each Finance Party shall, as soon as practicable after a
demand by the Agent, provide a certificate confirming the
amount of its Increased Costs.
12.3 Exceptions
(A) Clause 12.1 (Increased Costs) does not apply to the extent any
Increased Cost is:
(1) attributable to a Tax Deduction required by law to be
made by the Borrower; or
(2) attributable to the wilful breach by the relevant
Finance Party or its Affiliates of any law or
regulation; or
(3) compensated for in full by the operation of clause
11.3 (Indemnity) or any other provision of this
Agreement; or
(4) attributable to any change in the rate of any Tax
referred to in clause 11.3(B); or
(5) attributable to the implementation by the applicable
authorities having jurisdiction over such Lender of
any increase in capital adequacy requirements which is
pursuant to and in accordance with any timetable
relating to the implementation of capital adequacy
requirements where the Lender is aware of such
timetable as at the date of this Agreement.
(B) In this clause 12.3, a reference to a "Tax Deduction" has the
same meaning given to the term in clause 11.1 (Definitions).
23
13. INDEMNITIES
13.1 Currency indemnity
(A) If any sum due from the Borrower under the Finance Documents
(a "Sum"), or any order, judgment or award given or made in
relation to a Sum, has to be converted from the currency (the
"First Currency") in which that Sum is payable into another
currency (the "Second Currency") for the purpose of:
(1) making or filing a claim or proof against the Borrower; or
(2) obtaining or enforcing an order, judgment or award in
relation to any litigation or arbitration proceedings,
the Borrower shall, as an independent obligation, within five
Business Days of demand, indemnify each Finance Party to whom
that Sum is due against any cost, loss or liability arising
out of or as a result of the conversion including any
discrepancy between (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.
(B) The Borrower waives any right it may have in any jurisdiction
to pay any amount under the Finance Documents in a currency or
currency unit other than that in which it is expressed to be
payable.
13.2 Other indemnities
The Borrower shall, within five Business Days of demand, indemnify each
Finance Party against any cost, loss or liability properly incurred by
that Finance Party as a result of:
(A) the occurrence of any Default;
(B) a failure by the Borrower to pay any amount due under a
Finance Document on its due date including, without
limitation, any cost, loss or liabilities arising as a result
of clause 26.2 (Redistribution of payments);
(C) funding, or making arrangements to fund, its participation in
a Loan requested by the Borrower in the relevant Drawdown
Notice but not made by reason of the operation of any one or
more of the provisions of this Agreement (other than by reason
of default or negligence by that Lender alone); or
(D) a Loan (or part of a Loan) not being prepaid in accordance
with a notice of prepayment given by the Borrower.
13.3 Indemnity to the Agent
The Borrower shall promptly indemnify the Agent against any cost, loss
or liability incurred by the Agent (acting reasonably) as a result of:
(A) investigating any event which it reasonably believes is a
Default; or
(B) acting or relying on any notice, request or instruction which
it reasonably believes
24
to be genuine, correct and appropriately authorised.
14. ILLEGALITY AND MITIGATION
14.1 Illegality
If, at any time, it is or will become unlawful in any jurisdiction for
a Lender to perform any of its obligations as contemplated by this
Agreement or to fund its participation in any Loan:
(A) that Lender shall promptly notify the Agent upon becoming aware of
that event;
(B) upon the Agent notifying the Borrower, the relevant Commitment of
that Lender will be immediately cancelled. If a Lender's
Commitment is cancelled in accordance with the terms of this
Agreement after the Agent has received a Drawdown Notice, then the
amount to be advanced thereunder shall be reduced accordingly; and
(C) the Borrower shall repay that Lender's participation in each Loan
together with accrued interest to the date of actual payment and
all other sums due or which may become due to such Lender
including any additional amount payable under clause 13.2 (Other
indemnities) on the last day of the Interest Period for such 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).
14.2 Mitigation
Notwithstanding the provisions of Clauses 11 (Tax gross up and credit),
12 (Increased Costs) and 14.1 (Illegality), if in relation to a Lender
or (as the case may be) the Agent circumstances arise which would
result in:
(A) any deduction, withholding or payment of the nature referred
to in clause 11 (Tax gross up and credit);
(B) any increased cost of the nature referred to in clause 12
(Increased Costs); or
(C) a notification pursuant to clause 14.1 (Illegality),
then without in any way limiting, reducing or otherwise qualifying the
rights of such Lender or the Agent, as the case may be, under any of
those clauses, and without prejudice to the Borrower's obligations
under those clauses, such Lender or the Agent, as the case may be,
shall promptly upon becoming aware of the same notify the Agent thereof
(whereupon the Agent shall promptly notify the Borrower) and such
Lender or the Agent, as the case may be, shall enter into negotiations
in good faith with the Agent and the Borrower for a period not
exceeding thirty days (or such lesser period, as the parties may agree)
with a view to mitigating or removing such circumstances by means of
the transfer of its participation in the Facility and its rights and
obligations hereunder and under the Finance Documents to another
financial institution or Facility Office not affected by the
circumstances having the results set out in (A), (B) or (C) above and
shall otherwise take such reasonable steps as may be open to it to
mitigate the effects of such circumstances provided that such Lender or
the Agent, as the case may be, shall not be under any obligation to
take any such action if, in its opinion, to do so would or might have a
material adverse effect upon its business, operation or financial
condition or the management of its
25
Tax affairs or be contrary to its policies or would involve it in any
unlawful activity or any activity that is contrary to any request,
guidance or directive of any competent authority applicable to such
Lender or the Agent (whether or not having the force of law but if not
having the force of law being on which it is the general practice of
persons to whom it is intended to apply to comply with) or (unless
indemnified to its satisfaction) would involve it in any significant
expense or tax disadvantage.
14.3 The Borrower shall indemnify each Finance Party for all costs and
expenses reasonably incurred by that Finance Party as a result of steps
taken by it under clause 14.2 (Mitigation).
15. COSTS AND EXPENSES
15.1 Transaction expenses
The Borrower shall, within five Business Days of demand, pay the Agent
and the Co-ordinating Arranger the amount of all costs and expenses
(including legal fees) reasonably incurred by any of them (on a full
indemnity basis and whether or not the Facility is drawndown or
utilised) in connection with the negotiation, preparation, printing,
execution and syndication of:
(A) this Agreement and any other documents referred to in this
Agreement; and
(B) any other Finance Documents executed after the date of this
Agreement.
15.2 Amendment costs
If the Borrower requests an amendment, waiver or consent, the Borrower
shall, within five Business Days of demand, reimburse the Agent for the
amount of all costs and expenses (including legal fees) reasonably
incurred by the Agent in responding to, evaluating, negotiating or
complying with that request or requirement.
15.3 Enforcement costs
The Borrower shall, within five Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal
fees, valuation, accountancy and consultancy fees, administrative time
costs and communication out of pocket expenses) properly incurred by
that Finance Party in connection with the enforcement of, or the
preservation of any rights under, any Finance Document.
PART 6: REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
16. REPRESENTATIONS AND WARRANTIES
Subject to clause 16.18 (Repetition), the Borrower makes the
representations and warranties set out in this clause 16 to each
Finance Party on the date of this Agreement.
26
16.1 Status
(A) The Borrower is a limited company, duly incorporated and
validly existing under the laws of Hong Kong.
(B) Each of the Borrower and each other Borrower Group Company has
the power and all necessary governmental and other consents,
approvals, licences and authorities under any applicable
jurisdiction to own its assets and carry on its business as it
is being conducted.
16.2 Binding obligations
The obligations expressed to be assumed by the Borrower in each
relevant Finance Document are, subject to the Reservations, its legal,
valid, binding and enforceable obligations.
16.3 Non-conflict with other obligations
The entry into and performance by the Borrower of, and the transactions
contemplated by, the Finance Documents do not conflict in any material
way with:
(A) any law or regulation applicable to it;
(B) its constitutional documents; or
(C) any agreement or instrument binding upon it or any other
Borrower Group Company or any of its or any such company's
assets.
16.4 Power and authority
(A) The Borrower has the power to enter into, perform and deliver, and
has taken all necessary action to authorise its entry into,
performance and delivery of, the Finance Documents to which it is
a party and the transactions contemplated by those Finance
Documents.
(B) No limits on the Borrower's powers will be exceeded as a result of
the borrowings and grant of security or the taking of any other
action contemplated by any relevant Finance Document.
(C) (1) All actions, conditions and things required to be
taken, fulfilled and done (including the obtaining of any
necessary consents and approvals) in order to enable the
Borrower lawfully to enter into, exercise its rights and
perform and comply with its obligations contained in each
relevant Finance Document and to ensure that those
obligations are (subject to the Reservations) legally
valid, binding and enforceable have been taken, fulfilled
and done; and
(2) The requisite resolutions of the Borrower's board of
directors have been duly and properly passed to authorise
its execution and performance of the Finance Documents to
which it is a party and such resolutions are in full force
and effect and have not been varied or rescinded.
27
16.5 Validity and admissibility in evidence
Subject to the Reservations, all Authorisations required or desirable:
(A) to enable the Borrower lawfully to enter into, exercise its
rights and comply with its obligations in each relevant
Finance Document; and
(B) to make each relevant Finance Document admissible in evidence
in its jurisdiction of incorporation,
have been obtained or effected and are in full force and effect.
16.6 No Event of Default
No Event of Default has occurred which is Continuing.
16.7 Financial Statements
Its Financial Statements, together with the notes thereto, fairly
represent its and, in case of the consolidated Financial Statement, the
Borrower Group's financial condition during the relevant period in
respect of which the same were prepared.
16.8 No litigation
No litigation, arbitration or administrative or other proceedings
(together "proceedings") of or before any court have (to the best of
the Borrower's knowledge and belief) been started or threatened against
the Borrower or any other Borrower Group Company where, if such
proceedings were adversely determined against the Borrower or such
other Borrower Group Company they would (whether individually or in
aggregate) be likely to result in a liability in excess of
US$30,000,000 (or its equivalent) or result in a Material Adverse
Effect.
16.9 No Material Adverse Change
There has been no Material Adverse Change (to the best of the
Borrower's knowledge and belief) since the date of this Agreement or,
if later, the date of the latest Financial Statements delivered to the
Agent under clause 17.1 (Financial Statements).
16.10 Material business and consents
All licences and all material contracts, consents and authorisations
(including Telecommunications Authorisations) necessary for the
carrying on of the Borrower Group's Core Business have been obtained
and are in full force and effect and (to the best of the Borrower's
knowledge and belief) are not likely to be revoked or terminated (and
not be reinstated, renewed or replaced by a similar licence within 30
days after such revocation or termination) or be made subject to unduly
onerous conditions, and no notice has been received by the Borrower or,
so far as the Borrower is aware, by any other Borrower Group Company of
an intention to so revoke or terminate or impose such conditions.
28
16.11 Telecommunications compliance
Neither the Borrower nor, so far as the Borrower is aware, any other
Borrower Group Company has received notification of any breach or
alleged breach of the Telecommunications Regulations and the Borrower
has no reason to believe that any such notice is pending or threatened
and no circumstances exist which are known to the Borrower and which
may be expected to prevent or interfere with the Borrower or any other
Borrower Group Company being in compliance with any such
Telecommunications Regulations or result in any material liability
under them.
16.12 Governing law and enforcement
The choice of Hong Kong law as the governing law of the relevant
Finance Documents will, subject to the Reservations, be recognised and
enforced in its jurisdiction of incorporation.
16.13 Deduction of Tax
It is not required under the law of its jurisdiction of incorporation
to make any deduction for or on account of Tax from any payment it may
make under any Finance Document.
16.14 No filing or stamp taxes
Under the laws of Hong Kong it is not necessary that the Finance
Documents be filed, recorded or enrolled with any court or other
authority in that jurisdiction or that any stamp, registration or
similar tax be paid on or in relation to the Finance Documents or the
transactions contemplated by the Finance Documents.
16.15 Pari passu ranking
The Borrower's payment obligations under the Finance Documents rank at
least pari passu with the claims of all its other unsecured and
unsubordinated creditors, except for obligations mandatorily preferred
by law applying to companies generally.
16.16 Share capital interests
As at the date of this Agreement, the Borrower is an indirect wholly
owned subsidiary of the Parent.
16.17 No Encumbrances
There are no Encumbrances affecting any assets of the Borrower or any
of its Principal Subsidiaries (other than the Listed Principal
Subsidiaries and their Subsidiaries) except as permitted under clause
19.3 (Negative pledge).
16.18 Repetition
There shall be deemed to be repeated on the first day of each Interest
Period each of the representations and warranties contained in clauses
16.1 (Status), 16.2 (Binding obligations), 16.3 (Non-conflict with
other obligations), 16.4 (Power and authority), 16.5 (Validity and
admissibility in evidence), 16.6 (No Event of Default), 16.7 (Financial
Statements), 16.8 (No litigation), 16.9 (No Material Adverse Change),
16.10 (Material business and consents) 16.11 (Telecommunications
compliance), 16.12 (Governing law
29
and enforcement) and 16.15 (Pari passu ranking), by reference to the
facts and circumstances existing as at such date; except in the case of
the representation and warranty set out in clauses 16.7 (Financial
Statements) and 16.9 (No Material Adverse Change) which shall be deemed
to be repeated by reference to the most recent Financial Statements
delivered to the Agent under clause 17.1 (Financial Statements).
17. INFORMATION UNDERTAKINGS
The undertakings in this clause 17 shall remain in force from the date
of this Agreement for so long as any amount is outstanding or prior to
which, any Commitment is in force, under the Finance Documents.
17.1 Financial Statements
The Borrower will deliver to the Agent, in sufficient copies for all
the Lenders:
(A) as soon as available and in any event within 120 days after the
end of each of its Financial Years (beginning with the Financial
Year ending on 31 March 2004), its annual audited financial
statements both on a consolidated and non-consolidated basis as at
the end of and for that Financial Year;
(B) as soon as available and in any event within 90 days after the end
of the first six months of each of its Financial Years (beginning
with the six months ending on 30 September 2003), its semi-annual
unaudited financial statements both on a consolidated and
non-consolidated basis and as at the end of and for the relevant
six month period; and
(C) for so long as any securities issued by the Parent are listed on
The Stock Exchange of Hong Kong Limited or any recognised stock
exchange, its quarterly unaudited financial statements for the
quarters ending 30 June and 31 December in each Financial Year
both on a consolidated and non-consolidated basis as soon as the
same become available, but in any event not later than the date
falling 60 days after the end of each such quarter of each of its
Financial Years or, if later, one week after the date of the
announcement of the results of the Parent for the six months or,
as the case may be, twelve months ended at the end of such quarter
Provided that if a copy of such unaudited financial statements has
been delivered by the Borrower prior to the date of such
announcement to any third party not being a Group Company and
which is not bound by an obligation of confidentiality to the
Parent, then such unaudited financial statements shall be
delivered not later than the date falling one week after the date
on which such unaudited financial statements were delivered to
such third party. In the event that all the securities issued by
the Parent cease to be so listed, the Borrower shall deliver such
quarterly unaudited financial statements as soon as the same
become available, but in any event within 60 days after the end of
such quarter.
17.2 Requirements as to Financial Statements
(A) Each set of Financial Statements delivered by the Borrower
pursuant to clause 17.1 (Financial Statements) shall be certified
by a director of the Borrower as fairly representing the financial
condition of the Borrower Group or, as the case may be, of the
Borrower as at the date as at which those Financial Statements
were drawn up and shall be accompanied by a written confirmation
from the Borrower to the Agent certifying the aggregate amount of
all Indebtedness secured by all
30
Encumbrances referred to in paragraph (B) of clause 19.3 (Negative
pledge) as at such date.
(B) The Borrower shall procure that each set of Financial Statements
delivered pursuant to clause 17.1 (Financial Statements) is
prepared using Hong Kong GAAP and accounting practices consistent
with those applied in the preparation of the Original Financial
Statements unless, in relation to any set of Financial Statements,
it notifies the Agent that there has been a change in Hong Kong
GAAP, the accounting practices or reference periods and its
auditors deliver to the Agent:
(1) a description of any change necessary for those Financial
Statements to reflect Hong Kong GAAP, accounting practices
and reference periods upon which its Original Financial
Statements were prepared; and
(2) in the case of the Financial Statements delivered pursuant
to paragraphs (A) and (B) of clause 17.1 (Financial
Statements) sufficient information, in form and substance
as may be reasonably required by the Agent, to enable the
Lenders to determine whether clause 18 (Financial
covenants) has been complied with and make an accurate
comparison between the financial position indicated in
those Financial Statements and the Original Financial
Statements.
Any reference in this Agreement to those Financial Statements
shall be construed as a reference to those Financial Statements as
adjusted to reflect the basis upon which the Original Financial
Statements were prepared.
(C) The Borrower shall only appoint and retain as its auditors KPMG or
any other internationally recognised firm of accountants.
(D) The Borrower shall, at the same time as it delivers its annual or
semi-annual Financial Statements, deliver to the Agent a
Compliance Certificate.
17.3 Information: miscellaneous
The Borrower shall supply, or shall procure that there is supplied, to
the Agent (in sufficient copies for all the Lenders):
(A) as soon as reasonably practicable upon becoming aware of them,
details of any litigation, arbitration or administrative
proceedings which are current against the Borrower or any other
Borrower Group Company and which might, if adversely determined,
have a Material Adverse Effect and detailing to what extent such
liability or diminution is covered by insurance;
(B) as soon as reasonably practicable, such further information
regarding the financial condition, business and operations of the
Borrower or any other Borrower Group Company, taken as a whole, as
any Finance Party (through the Agent) may reasonably request;
(C) all documents dispatched by the Borrower or by any other Borrower
Group Company to its creditors generally, and following the
initial public offering of shares in any Borrower Group Company,
its public shareholders, at the same time as they are dispatched;
and
31
(D) as soon as reasonably practicable after the Borrower becomes aware
of the same, any statement, direction, notice, determination,
guideline, code of practice issued by any Telecommunications
Authority which amends, revokes, limits or suspends any of the
Telecommunications Authorisations granted to any Borrower Group
Company or which imposes any condition or obligation on any
Borrower Group Company (in addition to those to which it is
already subject as at the date of this Agreement) which may have a
Material Adverse Effect.
18. FINANCIAL COVENANTS
18.1 Definitions
In this clause 18:
"EBITDA" means, in respect of any Relevant Period, the total operating
profit (loss) for continuing operations before interest, tax,
depreciation of tangible assets and amortisation of goodwill and other
intangible assets of the Borrower Group as determined on a consolidated
basis in accordance with Hong Kong GAAP and excluding in respect of the
Borrower Group any share of results of associates, jointly controlled
and unconsolidated companies, any exceptional profits or losses on the
sale of or termination of an operation, exceptional costs of a
reorganisation or restructuring, any extraordinary losses or expenses
such as goodwill write-off, asset and investment impairment losses and
provisions for investments and properties and any exceptional profits
or losses on the disposals of assets and extraordinary items and
minority interests.
"Interest" means, in relation to any Relevant Period, interest
(including the interest element of any payments made under finance
leases or hire purchase agreements), commission, fees, discounts and
other finance expenses or charges payable by the Borrower Group during
the Relevant Period (but excluding any interest payable to any Borrower
Group Company) as determined on a consolidated basis in accordance with
Hong Kong GAAP.
"Relevant Period" means each period of twelve months ending on the last
day of the Borrower's Financial Year and each period of twelve months
ending on the last day of the first half of the Borrower's Financial
Year.
"Test Dates" means 1 February 2004 and 1 August 2004 and thereafter
each 1 February and 1 August (or, to the extent the Borrower's
Financial Year is amended, the first day of the fifth month following
the end of each Relevant Period) and "Test Date" means any of the
foregoing. Each "Test Date" will be in respect of the most recently
completed Relevant Period.
"Total Debt" of any person means, at any date, the aggregate
outstanding principal or capital amount of (without duplication) (A)
all Indebtedness of such person, (B) any other indebtedness for
Borrowed Money with a final maturity of less than one year from its
date of incurrence owed to any commercial bank or other credit
institution by such person, (C) all amounts outstanding under any
commercial paper programme of such person and (D) any guarantees,
indemnities or other assurances against financial loss given by such
person in respect of the Total Debt of any other person, in each case
as determined on a consolidated basis in accordance with Hong Kong
GAAP, provided that the following liabilities shall be excluded when
calculating the Total Debt of any person (1) any currency hedging in
relation to non-Hong Kong Dollar indebtedness by the Borrower or any of
its Subsidiaries from time to time, (2) any issue of securities which
are mandatorily
32
convertible into shares, (3) its Subordinated Indebtedness and (4) trade
payables and vendor financing.
18.2 Financial undertakings
The Borrower shall comply with the following for so long as any amount
remains outstanding under any Finance Document:
(A) The ratio of EBITDA to Interest in respect of any Relevant
Period shall not be less than 2.0 to 1.
(B) The ratio of Total Debt of the Borrower Group to EBITDA in
respect of any Relevant Period shall not exceed 5.0 to 1.
Compliance with and calculation of the ratios referred to in this
clause 18.2 shall be required as at the last day of each Relevant
Period only. Testing shall be carried out on each of the Test Dates the
first of which shall fall on 1 February 2004 by reference to the most
recent annual audited and/or semi-annual unaudited accounts prepared on
a consolidated basis in respect of the Borrower Group delivered by the
Borrower in respect of the Relevant Period.
Any Indebtedness owing by, or interest payable by, a Borrower Group
Company to another Borrower Group Company shall be ignored for the
purposes of this clause 18.2.
18.3 Terms of subordination
For the purpose of calculating the financial covenants under this
clause 18, the Borrower may procure any Inter-Group Borrowing or any
Third Party Borrowing be deemed and treated as Subordinated
Indebtedness pursuant to a Group Subordination Deed or, as the case may
be, a Third Party Subordination Deed. In either case, the Borrower may
subsequently at its option de-subordinate any such Subordinated
Indebtedness in accordance with the terms of the Group Subordination
Deed or, as the case may be, the Third Party Subordination Deed
relating thereto provided that such de-subordination applies to all but
not part only of such Subordinated Indebtedness and provided further
that the following conditions have been satisfied:
(A) the Borrower has given to the Agent not less than 30 Business
Days' (or such shorter period as the Majority Lenders may agree)
prior written notice of the date on which such de-subordination is
to become effective (the "Release Date");
(B) together with the notice referred to above, the Borrower has
delivered a confirmation in writing to the Agent certifying that
it is in compliance with the financial covenants contained in and
calculated in accordance with this clause 18 and would remain in
compliance notwithstanding the proposed de-subordination and
confirming that no Default has occurred and is Continuing or would
result from the proposed de-subordination. For the avoidance of
doubt, the relevant amount of the Subordinated Indebtedness to be
de-subordinated on the Release Date shall, as from and as at such
date, be treated as and included in the calculation of Total Debt
or, as the case may be, Interest for the purposes of this clause
18; and
(C) no Default is Continuing on the Release Date.
33
The Borrower shall not be entitled to de-subordinate any Subordinated
Indebtedness except as provided for in this clause 18.3.
19. GENERAL UNDERTAKINGS
The undertakings in this clause 19 shall remain in force for so long as
any amount is outstanding or prior to which, any Commitment is in
force, under the Finance Documents.
19.1 Authorisations
The Borrower shall, and shall procure that each other Borrower Group
Company shall, promptly obtain, comply with and do all that is
necessary to maintain in full force and effect any Authorisation
required under any applicable law to ensure the legality, validity,
enforceability or admissibility in evidence of any relevant Finance
Document in any relevant jurisdiction to enable each such company to
perform its payment obligations under such Finance Document and to
ensure the legality, validity, enforceability or admissibility in
evidence of such Finance Document in any relevant jurisdiction.
19.2 Compliance with laws
The Borrower shall, and shall procure that each other Borrower Group
Company shall, comply in all material respects with all laws to which
it may be subject, save where failure to so comply would not have a
Material Adverse Effect.
19.3 Negative pledge
The Borrower shall not, and shall procure that no Principal Subsidiary
(other than Listed Principal Subsidiaries and their Subsidiaries)
shall, create, incur, assume or permit to subsist any Encumbrance over
any of its assets to secure the Indebtedness of such company except
for:
(A) Permitted Encumbrances;
(B) the creation of Encumbrances (other than Permitted Encumbrances)
to secure Indebtedness incurred after the date of this Agreement
where the aggregate outstanding principal amount of such secured
Indebtedness (excluding secured Indebtedness of Listed Principal
Subsidiaries and their respective Subsidiaries and indebtedness
secured by Permitted Encumbrances) is less than or equal to 50% of
the Borrower's Adjusted Consolidated Net Worth as determined by
reference to the most recent Financial Statements delivered
pursuant to clause 17.1 (Financial Statements) provided that not
less than 10 Business Days after the creation of any such
Encumbrances in respect of Indebtedness of greater than
US$30,000,000 (or its equivalent), the Borrower has provided a
confirmation in writing to the Agent certifying compliance with
the foregoing requirement and setting out details of all
Indebtedness secured and to be secured and the Borrower's Adjusted
Consolidated Net Worth; or
(C) Encumbrances created, incurred, assumed or permitted to subsist on
terms satisfactory to the Agent (acting on the instructions of the
Majority Lenders) including effective provisions being made
whereby the Facility will be secured either at least equally and
rateably with such Indebtedness or by such other Encumbrances as
shall have been approved by the Majority Lenders for so long as
such Indebtedness will be so secured.
34
19.4 Pari passu
The obligations of the Borrower under the Finance Documents shall at
all times rank at least pari passu with all its other present and
future unsecured and unsubordinated indebtedness except for obligations
mandatorily preferred by law.
19.5 Maintenance of licences
The Borrower shall take all necessary action to protect and maintain
(and take no action which could foreseeably imperil the continuation
of) the Telecommunications Authorisations and shall procure that all
material conditions attaching to such Telecommunications Authorisations
are at all times complied with and that the business is carried on
within the limits specified in such Telecommunications Authorisations.
19.6 Notification of Events of Default
(A) The Borrower shall notify the Agent of any Default (and the steps,
if any, being taken to remedy it) promptly upon becoming aware of
its occurrence.
(B) Promptly upon a request by the Agent, the Borrower shall supply to
the Agent a certificate signed by one of its directors or a senior
officer on its behalf certifying that no Default is Continuing (or
if a Default is Continuing, specifying the Default and the steps,
if any, being taken to remedy it).
19.7 Consents and filings
The Borrower shall, and shall procure that each other Borrower Group
Company shall, ensure that there shall be:
(A) obtained, complied with and promptly renewed and maintained all
consents, licences, approvals and authorisations of;
(B) made all filings, recordings, registrations or enrolments with;
and
(C) paid any stamp, registration or similar tax to be paid to,
any governmental authorities or agencies or courts (if any) required
under any applicable law or regulation to enable the Borrower to
perform its material obligations under the Finance Documents or to
ensure the legality, validity and enforceability of the Finance
Documents.
19.8 Access
If an Event of Default is Continuing, upon reasonable notice being
given to the Borrower by the Agent (except in the case of emergency)
the Borrower shall, and shall procure that each other Borrower Group
Company shall, permit any one or more representatives of the Agent or
its advisers to have access to the property, assets, books and records
of the Borrower and the other Borrower Group Companies to inspect the
same during normal business hours.
35
19.9 No mergers
The Borrower shall not merge or consolidate with any other person,
enter into any demerger transaction or participate in any other type of
corporate reconstruction unless a continuing entity is the Borrower and
no breach of any other provision hereunder would result from such
merger.
19.10 Arm's length transactions
The Borrower shall not, and shall procure that no other Borrower Group
Company shall, enter into any transaction with any Affiliate outside
the Borrower Group otherwise than on arm's length terms.
19.11 Future borrowings
In relation to any future borrowing by any Borrower Group Company, the
Borrower shall, and shall procure each relevant party to such future
borrowing to, only agree to and enter into any subordination
arrangements contained in or contemplated by or entered into in respect
of such future borrowing which are on the same basis and subject to the
same terms and conditions as those contained in or contemplated by or
entered into in respect of the relevant Finance Documents.
20. EVENTS OF DEFAULT
20.1 Each of the events or circumstances set out in this clause 20.1 is an
Event of Default.
(A) Non-payment
The Borrower does not pay on the due date any amount payable
pursuant to any relevant Finance Document at the place at and in
the currency in which it is expressed to be payable under this
Agreement unless:
(1) the failure to pay is caused by administrative or technical
error beyond the Borrower's control; and
(2) payment is subsequently made within 3 Business Days of its
due date.
(B) Financial covenants
The Borrower fails to comply with clause 18.2 (Financial
undertakings) in the manner contemplated thereunder.
(C) Breach of specific covenants
The Borrower fails to comply with clause 19.3 (Negative pledge)
and/or clause 19.9 (No mergers).
(D) Other obligations
Without prejudice to paragraph (C) of clause 20.1 (Breach of
specific covenants), the Borrower fails to comply with clause 17
(Information undertakings) or clause 19 (General undertakings)
unless such failure is (in the reasonable opinion of the Majority
Lenders) capable of being remedied and is so remedied within 20
36
Business Days of the Agent giving written notice to the Borrower
requiring it to remedy, or if earlier, within 20 Business Days of
the date on which the Borrower first became aware of such breach.
(E) Misrepresentation
Any representation or statement made or deemed to be made by the
Borrower under clause 16 (Representations and warranties) is or
proves to have been incorrect or misleading in any material
respect when made or deemed to be made, unless the underlying
circumstances (if in the Majority Lenders' reasonable opinion
capable of remedy) are remedied within 20 Business Days of the
Agent giving written notice to the Borrower requiring it to remedy
or, if earlier, within 20 Business Days of the date on which the
Borrower first became aware of such breach, and its effect is such
as to be reasonably likely (in the opinion of the Agent acting on
the instructions of the Majority Lenders) to give rise to a
Material Adverse Effect.
(F) Insolvency
The Borrower or any Principal Subsidiary:
(1) ceases or suspends generally payment of its debts (or
announces an intention to do so) or is unable to pay its
debts or is deemed unable to pay its debts within the
meaning of Section 178 of the Companies Ordinance or any
other similar law of any applicable jurisdiction; or
(2) commences, or announces an intention to commence,
negotiations with all or any class of its creditors with a
view to the general readjustment or rescheduling of all or
any class of its indebtedness for Borrowed Money; or
(3) enters into any composition or other arrangement for the
benefit of its creditors generally or any class of
creditors; or
(4) is the subject of any voluntary or involuntary proceedings
under any law, regulation or procedure relating to
reconstruction or readjustment of its debts; or
(5) files a moratorium or has a moratorium declared in respect
of all or any class of its indebtedness for Borrowed Money.
(G) Insolvency proceedings
(1) Winding up:
(a) a meeting is convened; or
(b) a petition is presented (unless it is demonstrated
to the reasonable satisfaction of the Agent that the
petition is frivolous or vexatious and such petition
is set aside before the petition is advertised and
in any event within 14 days of presentation); or
(c) an order is made; or
(d) a resolution is passed
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for the dissolution, winding-up or bankruptcy of the
Borrower or any Principal Subsidiary (except for the
purposes of a reconstruction or amalgamation whilst
solvent on terms previously approved in writing by the
Agent); or
(2) Administration: a bona fide petition is presented for the
appointment of an administrator or provisional supervisor
or similar officer (if applicable) in relation to the
Borrower or any Principal Subsidiary (unless it is
demonstrated to the reasonable satisfaction of the Agent
that the petition is frivolous or vexatious and such
petition is set aside before the petition is advertised and
in any event within 14 days of presentation); or
(3) Request by directors or members: the directors or a member
of the Borrower or any Principal Subsidiary request the
appointment of a liquidator, receiver, receiver and
manager, administrative receiver, administrator, trustee,
provisional supervisor or similar official to the whole or
any substantial part of the assets of the Borrower or such
Principal Subsidiary.
(H) Creditors' process and distress
(1) an encumbrancer takes possession of the whole or any
substantial part of the assets or undertaking of the
Borrower or any Principal Subsidiary;
(2) a liquidator, receiver, receiver and manager,
administrative receiver, administrator, trustee or similar
official is appointed, of the whole or any substantial part
of the assets or undertaking of the Borrower or any
Principal Subsidiary;
(3) a distress, execution or other legal process is levied
against any of the assets of the Borrower or any Principal
Subsidiary to recover assets with a book value in excess of
US$30,000,000 (or its equivalent) in aggregate, and is not
discharged or paid out within 10 Business Days.
(I) Expropriation
The expropriation of all or a substantial part of the Borrower's
or any Principal Subsidiary's assets by any governmental or other
competent authority.
(J) Auditors' report
The auditors qualify their report to any audited Financial
Statements (other than qualifications of a technical nature which
are not material to the financial position of the Borrower)
(delivered under clause 17.1 (Financial statements)) so as to cast
doubt on their accuracy in any material respect or on the ability
of the Borrower or any Principal Subsidiary to continue as a going
concern.
(K) Rescission
Any party to the Finance Documents (other than a Finance Party)
rescinds or purports to rescind any of them in whole or in part
where to do so would have a Material Adverse Effect.
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(L) Revocation of Telecommunications Authorisation
The FTNS Licence is revoked or is suspended (and not reinstated,
renewed or replaced by a similar licence within 30 days after such
suspension or revocation) or is made subject to such conditions as
would have a Material Adverse Effect.
(M) Unlawfulness
It is or becomes unlawful for the Borrower to perform any of its
material obligations under the Finance Documents and such
non-performance has a Material Adverse Effect.
(N) Other Indebtedness
Any Indebtedness of the Borrower or any Principal Subsidiary which
in aggregate exceeds US$30,000,000 (or its equivalent) at any
time:
(i) is not paid on its due date (after the expiry of any
original grace period applicable thereto);
(ii) is declared due and payable before its stated maturity or
is placed on demand, in each case, by reason of an event of
default (howsoever described) or any circumstances arise as
a result of which any such Indebtedness could be so
declared due and payable before its stated maturity date;
or
(iii) which is repayable on demand is not repaid on demand being
made.
(O) Material Adverse Change
There occurs a Material Adverse Change.
20.2 Acceleration
Upon the occurrence of an Event of Default and so long as it is
Continuing the Agent may, and shall if so directed by the Majority
Lenders, by notice to the Borrower:
(A) cancel the Total Commitments whereupon they shall immediately be
cancelled;
(B) declare that all or part of the Loans, together with accrued
interest, and all other amounts accrued under the Finance
Documents be immediately due and payable, whereupon they shall
become immediately due and payable; and/or
(C) declare that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand by the
Agent on the instructions of the Majority Lenders.
20.3 Certain Events of Default regarding Principal Subsidiaries
For the purposes of paragraphs (F), (G), (H), (I) and (N) of clause
20.1, "Principal Subsidiaries" shall be deemed to include any Borrower
Group Company which has incurred any Third Party Borrowings in respect
of which the Borrower has issued any guarantee or indemnity or other
form of credit support.
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PART 7: CHANGES TO PARTIES
21. CHANGES TO THE LENDERS
21.1 Assignments and transfers by the Lenders
Subject to this clause 21, a Lender (the "Existing Lender") may:
(A) assign any of its rights; or
(B) transfer by novation any of its rights and obligations,
under the Finance Documents to another bank or financial institution
or, with the prior written consent of the Borrower, to any other entity
(the "New Lender") provided that such transfer or assignment is in a
minimum amount of HK$10,000,000.
21.2 Conditions of assignment or transfer
(A) If a Lender assigns any rights under the Finance Documents in
accordance with clause 21.1 (Assignments and transfers by the
Lenders) then, subject to the assignee delivering to the Agent at
least 7 Business Days' (or such shorter period agreed by the
Agent) prior to the proposed Assignment Date specified in such
undertaking an undertaking substantially in the form of Schedule 5
(Form of Assignee's Undertaking) in the Agreed Terms that it will
be bound by the terms of the Finance Documents as a Lender, and
paying the assignment fee referred to in clause 21.3 (Assignment
or transfer fee), the assignee shall be substituted for the
assignor and have the same rights against the Borrower as it would
have had if it had been an original party to this Agreement as a
Lender with the rights assigned to it. Such undertaking shall
contain the assignee's notice details for the purpose of clause
31.2 (Addresses).
(B) A transfer will only be effective if the procedure set out in
clause 21.5 (Procedure for transfer) is complied with.
(C) Each of the parties irrevocably authorises the Lenders to deliver,
and the Agent to receive, undertakings under clause 21.2(A) and/or
Transfer Certificates in accordance with clause 21.5 (Procedure
for transfer). In addition, each party (other than the Existing
Lender and the New Lender) irrevocably authorises the Agent to
execute any completed Transfer Certificates on its behalf.
(D) The Borrower shall enter into such additional documentation (if
any) required by the Agent to effect any assignment or transfer in
accordance with this clause 21.
The Agent shall distribute payments received by it in relation to the
Loans to the Lenders indicated in the records of the Agent as being
entitled thereto on the date on which such payment fell due (and, if
that date is the due date on which an assignment or transfer of such
portion takes effect, to the Lenders so indicated before such
assignment or transfer took effect).
40
21.3 Assignment or transfer fee
On the date of the Agent's receipt of the undertaking required under
clause 21.2(A) (Conditions of assignment or transfer) or of the
Transfer Certificate, the relevant New Lender shall pay a fee of
HK$5,000 to the Agent.
21.4 Limitation of responsibility of Existing Lenders
(A) Unless expressly agreed to the contrary, an Existing Lender makes
no representation or warranty and assumes no responsibility to a
New Lender for:
(1) the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other
documents;
(2) the financial condition, affairs, status or nature of the
Borrower or any of its Subsidiaries or the observance by
the Borrower of any term of the Finance Documents;
(3) the performance and observance by the Borrower of its
obligations under the Finance Documents or any other
documents; or
(4) the accuracy and/or completeness of any statements or
information (whether written or oral) made in or in
connection with or supplied to it in connection with any
Finance Document or any other document or supplied to it in
connection with the Borrower Group,
and any representations or warranties implied by law are excluded.
(B) Each New Lender confirms to the Existing Lender and the other
Finance Parties that it:
(1) has made (and shall continue to make) its own independent
investigation and assessment of the financial condition and
affairs of the Borrower and its related entities in
connection with its participation in this Agreement and has
not relied and will not rely on any information provided to
it by the Existing Lender or any Finance Party in
connection with any Finance Document;
(2) will continue to make its own independent appraisal of the
creditworthiness of the Borrower and its related entities
whilst any amount is or may be outstanding under the
Finance Documents or any Commitment is in force;
(3) has received copies of the Finance Documents and all
documentation and information required by it in connection
with this transaction (other than the Fee Letter referred
to in clause 10.2 (Front-end fee)); and
(4) has received copies of all outstanding consents and waiver
requests and will be bound by any decisions made by the
Existing Lender which have been communicated to the Agent
prior to the Transfer Date.
(C) Nothing in any Finance Document obliges an Existing Lender to:
(1) accept a re-transfer from a New Lender of any of the
rights and obligations assigned or transferred under
this clause 21; or
41
(2) support any losses directly or indirectly incurred by the New
Lender by reason of the non-performance by the Borrower of its
obligations under the Finance Documents or otherwise.
21.5 Procedure for transfer
(A) If an Existing Lender wishes to transfer any rights and/or
obligations under the Finance Documents in accordance with clause
21.1 (Assignments and transfers by the Lenders) such transfer will
only be effective if the Agent receives three executed copies of a
Transfer Certificate signed by the Existing Lender(s) and the New
Lender(s) at least 7 Business Days prior to the proposed Transfer
Date specified in the Transfer Certificate (or such shorter period
agreed by the Agent). As soon as reasonably practicable after its
receipt of a duly completed Transfer Certificate appearing to
comply with the terms of this Agreement, the Agent shall execute
that Transfer Certificate.
(B) On the Transfer Date specified in the Transfer Certificate (or if
later, on the date on which the Agent executes the Transfer
Certificate):
(1) to the extent that the Existing Lender(s) elect(s) in the
Transfer Certificate to transfer rights and obligations
under the Finance Documents, the Borrower and the Existing
Lender(s) shall each be released from further obligations
to the other and their respective rights against each other
cancelled (except for rights accrued before the date on
which the Transfer Certificate takes effect);
(2) the Borrower and the New Lender(s) shall acquire rights
against each other and assume obligations towards each
other which differ from the rights and obligations so
cancelled and released only insofar as the Borrower and the
New Lender(s) have acquired and assumed them in place of
the Borrower and the Existing Lender(s);
(3) the New Lender(s) and the Finance Parties shall acquire the
same rights and assume the same obligations between
themselves as they would have acquired and assumed had the
New Lender(s) been original parties to the Finance
Documents as Lender(s) with the rights and obligations
acquired and assumed as a result of such transfer (and, to
that extent, the Existing Lender(s) and the Finance Parties
shall each be released from further obligations to each
other under the Finance Documents); and
(4) the New Lender(s) shall become a party to the Finance
Documents as a "Lender".
21.6 Reference Banks
If a Reference Bank (or, if a Reference Bank is not a Lender, the
Lender of which it is an Affiliate) ceases to be one of the Lenders,
the Agent shall (after consultation with the Borrower) appoint another
Lender or an Affiliate of a Lender to replace that Reference Bank.
21.7 Sub-participations
Nothing in this Agreement restricts the ability of a Lender to
sub-contract an obligation if it remains liable under this Agreement
for that obligation.
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21.8 Limitation of specified indemnities
If, at any time, any Lender assigns or transfers any of its rights,
benefits and obligations under this Agreement and, at the time of such
assignment or transfer, there arises an obligation on the part of the
Borrower under clause 11.2 (Tax gross-up) or clause 12 (Increased
Costs) to pay to such Lender or its assignee or transferee any amount
in excess of the amount it would have then been obliged to pay but for
such assignment or transfer, then the Borrower shall not be obliged to
pay the amount of such excess provided that this clause 21.8 shall not
apply to any assignment or transfer made (1) pursuant to clause 14.2
(Mitigation) or (2) with prior consent of the Borrower or (3) at any
time whilst an Event of Default is Continuing.
21.9 Confidentiality
The Borrower agrees that the Finance Parties may at any time disclose
such information relating to the Borrower and other Borrower Group
Company as shall come into their possession whether or not in relation
to the Facility:
(A) to any prospective assignee, New Lender or sub-participant;
(B) to their respective advisers, professional or otherwise;
(C) to the other Finance Parties or any Affiliate of a Finance Party;
(D) if required to do so by an order of a court in any jurisdiction;
(E) under any law or regulation or to any applicable regulatory
authority (including the Hong Kong Monetary Authority) in any
jurisdiction; and
(F) where such information shall have already entered the public
domain,
and in the case of paragraphs (A), (B) and (C) above, subject to
requiring and receiving a written confidentiality undertaking
substantially in the form of Schedule 6 (Form of Confidentiality
Undertaking), a copy of which shall, as soon as practicable, be
delivered to the Borrower.
21.10 Agent's notification
The Agent shall as soon as practicable notify the Borrower of its
receipt of an undertaking under clause 21.2(A) (Conditions of
assignment and transfer) or upon execution of a Transfer Certificate
under clause 21.5 (Procedure for transfer).
21.11 Universal succession
If a Lender is to be merged with any other person by universal
succession, that Lender shall, at its own cost, within 30 days of that
merger furnish to the Agent:
(A) a copy of a legal opinion issued by a qualified legal counsel
practising law in its jurisdiction of incorporation confirming
that all that Lender's assets, rights and obligations generally
have been duly vested in the succeeding entity who has succeeded
to all relationships as if those assets, rights and obligations
had been originally acquired, incurred or entered into by the
succeeding entity; and
43
(B) a written confirmation by the Agent's legal counsel that the laws
of the jurisdiction in which the Facility Office is located
recognise such merger by universal succession under the relevant
foreign laws,
whereupon a transfer and novation of all that Lender's assets, rights
and obligations to its succeeding entity shall have been, or be deemed
to have been, duly effected as at the date of the said merger. If that
Lender, in a universal succession, does not comply with the
requirements under this clause 21.11, the Agent has the right to
decline to recognise the succeeding entity and demand that Lender and
the succeeding entity to sign and deliver a Transfer Certificate to the
Agent evidencing the disposal of all rights and obligations of that
Lender to that succeeding entity.
22. CHANGES TO THE BORROWER
The Borrower may not assign any of its rights or transfer any of its
rights or obligations under the Finance Documents.
PART 8: THE FINANCE PARTIES
23. AGENT
23.1 Appointment
(A) Appointment: Each Lender appoints the Agent to act as its agent in
connection with this Agreement; and authorises the Agent:
(a) to execute on its behalf those Finance Documents or any
document or certificate relating thereto expressed by this
Agreement to be executed by the Agent on behalf of the
Finance Parties;
(b) to exercise such rights, powers and discretions as are
specifically delegated to them by the terms of the Finance
Documents together with all reasonably incidental rights,
powers and discretions; and
(c) to make or receive any payment on its behalf as required by
the terms of any of the Finance Documents.
The Borrower shall be entitled to assume that the Agent
represents the Lender(s) or the Majority Lenders (as the case
may be), and that all consents and notices given by the Agent
on their behalf are validly given.
(B) Chinese Wall: In acting as Agent for the Lenders, the Agent's
syndication division (or such other division as may undertake such
task) shall be treated as a separate entity from any other of its
divisions or departments and, despite the provisions of this
clause 23, if the Agent acts for or transacts business with any
Group Company in any capacity in relation to any other matter
(including as a Lender under this Agreement), any information
given by any Group Company to the Agent in such other capacity may
be treated as confidential by the Agent.
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23.2 Powers
The Agent may:
(A) assume that:
(1) any representation made by the Borrower in or in connection
with the Finance Documents is true;
(2) no Default has occurred (unless it has actual knowledge of
a Default arising under clause 20.1(A) (Non-payment));
(3) the Borrower is not in breach of or default under its
obligations under any Finance Document; and
(4) any right, power, authority or discretion vested in any
party or the Majority Lenders has not been exercised;
unless the Agent has in its capacity as agent (or, where
relevant, as agent and trustee) for the Lenders actually
received written notice to the contrary from any other party
to this Agreement;
(B) assume that each New Lender's Facility Office is that identified
in the Transfer Certificate under which it became a party to this
Agreement until it has received from such New Lender a notice
designating some other office of such New Lender as its Facility
Office, and may act upon any such notice until the same is
superseded by a further such notice;
(C) engage and pay for the advice or services of any lawyers,
accountants or other advisers whose advice or services may seem
necessary, expedient or desirable to it and may rely upon any
advice so obtained;
(D) rely as to matters of fact which might reasonably be expected to
be within the knowledge of the Borrower upon a certificate or
statement signed by or on behalf of the Borrower;
(E) rely upon any communication or document believed by it to be
genuine and correct and to have been communicated or signed by the
person by whom it purports to be communicated or signed;
(F) refrain from exercising any right, power or discretion vested in
it under any Finance Document unless and until instructed by the
Majority Lenders or all of the Lenders (as the case may be)
whether or not such right, power or discretion is to be exercised
and, if it is to be exercised, as to the manner in which it should
be exercised, and it shall not be liable for acting or refraining
from acting in accordance with or in the absence of instructions
from the Majority Lenders or all of the Lenders (as the case may
be);
(G) refrain from taking any step to protect or enforce the rights of
any Lender under any Finance Document and from beginning any legal
action or proceeding arising out of or in connection with any
Finance Document until it has been indemnified and/or secured as
it may require (whether by way of payment in advance or otherwise)
45
against all costs, claims, expenses (including legal fees) and
liabilities which it will or may expend or incur in complying with
such instructions;
(H) refrain from doing anything which would or might in its opinion be
contrary to any applicable law or any requirements (whether or not
having the force of law) of any governmental, judicial or
regulatory body or otherwise render it liable to any person, and
it may do anything which is in its opinion necessary to comply
with any such applicable law or requirement;
(I) do any act or thing in the exercise of any of its powers and
duties under the Finance Documents which may lawfully be done and
which in its absolute discretion it deems advisable for the
protection and benefit of the Finance Parties collectively
including the investment of monies in any investments authorised
by any applicable law;
(J) perform any of its duties, obligations and responsibilities under
the Finance Documents by or through its personnel or agents;
(K) accept deposits from, lend money (secured or unsecured) to and
generally engage in any kind of banking or other business with any
Group Company without any liability to account;
(L) carry on any banking or other business with any Group Company
without liability to account as though it were not the Agent and
without notice to or consent of the Lenders and shall be under no
obligation to provide any information regarding any Group Company
which it receives as a result of such activities to any other
Finance Party. With respect to its participation in the Facility,
the Agent shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though
it were not the Agent;
(M) deposit any instruments, documents or deeds delivered to it with
any Lender or professional custodian or with any Finance Party's
legal advisers and shall not be liable for any loss thereby
incurred in the absence of any gross negligence or wilful default
by it; and
(N) delegate from time to time by power of attorney or otherwise to
any person it thinks fit any of its rights, trusts, powers,
authorities or discretions vested in it by any Finance Document
which, in each case, relate to purely administrative acts only and
on any terms and subject to any conditions or regulations as it
thinks fit.
23.3 Duties
The Agent shall:
(A) except as regards purely administrative acts, consult whenever
reasonably practicable with the Lenders before doing or refraining
from doing any act or thing in the exercise of its powers as agent
and/or trustee;
(B) as soon as practicable upon receipt inform each Lender of the
contents of any notice or document or other information (addressed
to all Lenders generally or which the Lenders are expressly
entitled to receive pursuant to the terms of this Agreement)
received by it in its capacity as Agent under this Agreement from
the Borrower;
46
(C) promptly following receipt of the notice referred to below, notify
each Lender of the occurrence of any Default or any material
breach by the Borrower in the due performance of its obligations
under this Agreement which is either a default in the payment of
principal or interest of which the Agent has received notice from
any other party to this Agreement;
(D) subject to the provisions of this clause 23 and except as
stipulated in clause 24 (Amendments and decisions), act in
accordance with any instructions given to it by the Majority
Lenders;
(E) if so instructed by the Majority Lenders, refrain from exercising
any right, power or discretion vested in it under the Finance
Documents; and
(F) refrain from beginning any legal action or proceedings in
connection with the Finance Documents on behalf of any Finance
Party until such Finance Party has given its written consent to
the proposed action.
This clause relates to every consent to be given, decision to be taken,
discretions to be exercised, or determination to be made which is
expressed to be made or taken by the Agent, except where the words "at
the request of any Lender" or similar, are used, or where the consent,
decision or discretion to be made or exercised would fall within the
scope of clause 24.2 (Unanimous Consent) in which case the Agent shall
act accordingly. Any requirement that such consent, decision or
determination must be reasonable or that the Agent is to "act
reasonably" is to be construed as an obligation on the Lenders granting
such consent or making such a decision or determination and not as an
individual obligation binding on the Agent in that capacity. The
Agent's duties under the Finance Documents are solely mechanical and
administrative in nature.
23.4 Exoneration
Despite anything to the contrary expressed or implied in this
Agreement, none of the Agent, the Co-ordinating Arranger or the Lenders
shall:
(A) be bound to enquire as to:
(1) whether or not any representation or warranty made by the
Borrower under or in connection with any Finance Document
is true;
(2) the occurrence or otherwise of any Default;
(3) the performance by the Borrower of its obligations under
any Finance Document;
(4) any breach or default by the Borrower of or under its
obligations under any Finance Document;
(B) be bound to account to any Finance Party for any fee or other sum
or the profit element of any sum received by it for its own
account;
(C) be bound to disclose to any other person any information relating
to any Group Company if such disclosure would or might in its
opinion constitute a breach of any law or regulation or be
otherwise actionable at the suit of any person;
47
(D) be under any fiduciary or other duty towards any Finance Party or
under any obligations (including any liability to hold any money
paid to it on trust or be liable to account for interest on such
money);
(E) be liable or responsible (in the absence of its own gross
negligence or wilful default):
(1) for any failure, omission, or defect in the due execution,
delivery, validity, legality, adequacy, performance,
enforceability, or admissibility in evidence of any Finance
Document or any communication, report or other document
delivered under any Finance Document; or
(2) in respect of its exercise or failure to exercise any of
its powers and duties under any Finance Document; or
(3) for the collectability of any sums payable under any
Finance Documents; or
(4) for any recital, statement, representation or warranty made
by any Borrower Group Company or any officer thereof,
contained in any Finance Document, or in any certificate,
report, statement or other document referred to or provided
for in, or received by it under or in connection with any
Finance Document; or
(5) for the supervision of any person to whom it has delegated
any trusts, powers, authorities or discretions vested in it
or (in the absence of gross negligence or wilful default by
the Agent) be in any way liable for any loss incurred
through the misconduct or default of such delegate;
(F) be under any obligations other than those expressly provided for
in this Agreement and shall have no liability or responsibility of
any kind to:
(1) the Borrower arising out of or in relation to any failure
or delay in the performance or breach by any Finance Party
(other than itself) of any of its obligations under any
Finance Document; or
(2) any Finance Party arising out of or in relation to any
failure or delay in the performance or breach by the
Borrower of any of its obligations under any Finance
Document; or
(G) be liable in any manner and each of them shall be fully protected
if it acts in accordance with the instructions of the Majority
Lenders in connection with the exercise of any right, power or
discretion or any matter not expressly provided for in the Finance
Documents. Any such instructions given by the Majority Lenders
will be binding on all the Finance Parties. In the absence of such
instructions the Agent may act as they consider to be in the best
interests of all the Finance Parties and in so doing shall be
fully protected.
23.5 Lenders' indemnity
Each Lender shall, on demand by the Agent, indemnify the Agent against
any and all fees (to the extent properly chargeable by the Agent under
any Finance Document but not promptly recovered from the Borrower),
costs, claims and expenses and liabilities which the Agent may pay or
incur (otherwise than by reason of its own gross negligence or wilful
48
misconduct) in acting in its capacity as agent for the Finance Parties.
The cost of indemnifying the Agent shall be borne by the Lenders in the
proportions determined in accordance with the definition of Relevant
Percentage. If a Lender (referred to in this clause 23.5 as a
"defaulting Lender") fails to pay its due contribution under this
indemnity, then the Agent may (without prejudice to its other rights
and remedies) deduct the amount due from the defaulting Lender from any
sums which are then or afterwards in its possession which would
otherwise be payable to the defaulting Lender.
23.6 Disclaimer
The Agent, the Co-ordinating Arranger and the Lenders accept no
responsibility to any other Finance Party for the accuracy and/or
completeness of any information supplied in connection with any Finance
Document or for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document and the Agent, the Co-ordinating
Arranger and the Lenders shall be under no liability to any other
Finance Party as a result of taking or omitting to take any action in
relation to any Finance Document (except in the case of its gross
negligence or wilful misconduct of the Agent, the Co-ordinating
Arranger or the Lenders (as the case may be)).
23.7 No actions against individuals
Each of the Finance Parties agrees that it will not assert or seek to
assert against any director, officer or employee of any other Finance
Party any claim it may have against any of them in respect of the
matters referred to in this clause 23 and such directors, officers or
employees may rely on this clause.
23.8 Credit appraisals
It is agreed by each Finance Party that it has itself been, and will
continue to be, solely responsible for making its own independent
appraisal of and investigations into the financial condition,
creditworthiness, condition, affairs, status and nature of each Group
Company, and, accordingly, each Lender confirms to each other Finance
Party that it has not relied, and will not rely, on any other Finance
Party:
(A) to check or enquire on its behalf into the adequacy, accuracy or
completeness of any information provided by or on behalf of any
Group Company in connection with any Finance Document and/or the
transactions contemplated in the Finance Documents (whether or not
such information has been or is after the date of this Agreement
circulated to such Lender by another Finance Party); or
(B) to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or nature
of any Group Company.
Each Lender acknowledges that none of the Agent-Related Persons has
made any representation or warranty to it, and that no act by the Agent
taken in the future, including any review of the affairs of the Group,
shall be deemed to constitute any representation or warranty by the
Agent or any Agent-Related Person to any Lender.
23.9 Extensions of protection to Agent-Related Persons
(A) All the provisions of this clause 23 and of any other provision of
this Agreement protecting or limiting the liability of an Agent,
or exonerating it from liability or responsibility, which may
enure to the benefit of an Agent shall also be deemed to
49
be given for the benefit of the Co-ordinating Arranger and all
Agent-Related Persons to whom they are capable of relating or in
respect of whom they are capable of taking effect.
(B) For the avoidance of doubt, the guarantee, indemnity, exonerations
and other protections in favour of the Agent, the Co-ordinating
Arranger, the Lenders and the Agent-Related Persons contained in
this Agreement and the other Finance Documents shall take effect
in respect of all events, action and omissions occurring before
the execution and completion of this Agreement as well as events,
actions and omissions occurring on or after its execution and
completion.
23.10 No duties
Except as specifically provided in this Agreement, the Co-ordinating
Arranger and the Lenders have no duties or responsibilities under or in
connection with any Finance Document.
23.11 Accession Deeds and Subordination Deeds
Each Lender:
(A) expressly authorises the Agent to execute on its behalf any Group
Subordination Deed and any Third Party Subordination Deed and to
undertake the obligations thereunder;
(B) agrees to take all and any steps necessary to enable the Agent to
comply with its obligations under the documents referred to in
paragraph (A) above; and
(C) agrees not to take or omit to take any action which could result
in the Agent being in breach of any of its obligations thereunder.
24. AMENDMENTS AND DECISIONS
24.1 Majority Lenders decisions
Except as provided in clause 24.2 (Unanimous Consent), with the prior
written consent of the Majority Lenders, the Agent and the Borrower may
from time to time enter into written amendments, supplements or
modifications to the Finance Documents (however fundamental) for the
purpose of adding any provisions to the Finance Documents or changing
in any manner the rights and/or obligations of all or any of the
Parent, the Borrower, the Agent and the Lenders, and:
(A) the Agent may execute and deliver to the Parent or the Borrower a
written instrument waiving prospectively or retrospectively, on
such terms and conditions as the Agent may specify in such
instrument, any of the requirements of any of the Finance
Documents;
(B) the Agent may effect, on behalf of the Majority Lenders, an
amendment or waiver to which they have agreed;
(C) the Agent may effect, on behalf of any Finance Party, any
amendment or waiver permitted by this clause; and/or
50
(D) the Agent shall promptly notify the other Parties of any amendment
or waiver effected under this clause and any such amendment or
waiver shall be binding on all the parties.
24.2 Unanimous consent
(A) An amendment or waiver that has the effect of changing or which
relates to:
(1) an increase or decrease in the amount of any Loan or a
lengthening or shortening of any Availability Period or any
amendment to the definition of the Final Repayment Date; or
(2) a reduction in the rate or rates of interest payable
hereunder or in the amount of or the due date for,
interest, fees or any other payment owing or to become
owing to any of the Lenders hereunder; or
(3) any provision relating to prepayment or scheduled payment
of principal or interest; or
(4) the definition of Majority Lenders or this clause; or
(5) the provisions of clause 26 (Sharing Among Lenders); or
(6) any provision which expressly requires the consent of all
the Lenders; or
(7) any condition precedent to the availability for drawing of
sums hereunder; or
(8) clause 2.2 (Finance Party's rights and obligations) or
clause 21 (Changes to the Lenders); or
(9) a change to the Borrower; or
(10) the currency in which any Loan is denominated.
shall not be made without the prior written consent of all of
the Lenders.
(B) Regardless of any other provision in this Agreement, no waiver
amendment, supplement or modification shall be effective without
the consent of the Agent, the Co-ordinating Arranger or the
Lenders (as the case may be) if any such waiver, amendment,
supplement or modification would otherwise amend, modify or waive
any of the rights of the Agent, the Co-ordinating Arranger or the
Lenders (as the case may be) under any of the Finance Documents or
(in each case) subject any of them to any additional obligations
under such documents or amend any amount payable to them.
24.3 Costs
If the Borrower requests any amendment, supplement, modification or
waiver under clause 24.1 (Majority Lenders decisions), or clause 24.2
(Unanimous Consent) then the Borrower shall, within five Business Days
of demand by the Agent, reimburse the Agent for the account of itself
and/or the respective party for all costs and expenses (including,
without limitation, reasonable legal fees), incurred by the Agent in
the negotiation, preparation and execution of any written instrument
contemplated by clause 24.1 (Majority
51
Lenders decisions) or clause 24.2 (Unanimous Consent).
24.4 Administrative determinations
The Agent may determine purely administrative matters without reference
to the Lenders.
24.5 Prior notice
Where this Agreement provides for any matter to be determined by
reference to the opinion of the Majority Lenders or to be subject to
the consent or request of the Majority Lenders or for any action to be
taken on the instructions of the Majority Lenders, such opinion,
consent, request or instructions shall only be regarded as having been
validly given or issued by the Majority Lenders if all the Lenders have
been given three Business Days' prior notice of the matter on which
such opinion, consent, request or instructions is sought but so that
the Borrower shall be entitled (and bound), if so informed by the
Agent, to assume that such notice has been duly received by each Lender
and that the relevant majority has been obtained to constitute Majority
Lenders whether or not this is the case.
24.6 Meaning of all Lenders
Where this Agreement or any other Finance Document, provides for any
matter to be determined by reference to the opinion of, or to be
subject to the consent of or request of all of the Lenders or the
Lenders acting unanimously or for any action to be taken on the
instruction of all the Lenders, such opinion, consent, request or
instructions shall (as between the Lenders) only be regarded as having
been validly given or issued by all the Lenders (or the Lenders acting
unanimously) if all the Lenders shall have received prior notice (the
"Agent's Notice") of such matter containing a request for written
instructions from such Lender to be received by the Agent within ten
Business Days of the receipt of the Agent's Notice. If, in respect of a
Lender, the Agent:
(A) shall not have received written instructions in respect of
such matter from such Lender; and
(B) the Agent shall have received written instructions in respect
of such matter from Lenders constituting the Majority Lenders,
in each case within such time period, such Lender shall be deemed to
have renounced and waived its right to make any such determination,
approval, consent or provide instructions to the Agent in respect of
such matter; shall not have any rights, recourse or remedy against the
Agent in respect of such matter; and shall be bound (as shall the
Borrower) by the determination, approval, consent or instructions of
the other Lenders in respect of such matter. If the Agent gives written
notice to the Borrower or any other Group Company that such unanimous
consent has been obtained from all of the Lenders then the Borrower
shall be entitled to assume that all the Lenders acted unanimously.
24.7 Lenders to act reasonably
If any provision of any Finance Document is made subject to or requires
the consent of the Agent and the Agent is required by such Finance
Document to act reasonably when considering whether its consent should
be granted, each of the Lenders agrees to act reasonably when the Agent
seeks its instructions in respect of the granting of such consent.
52
25. RETIREMENT OF AGENT
25.1 Notice of resignation
Subject to this clause 25, the Agent may (and, at the request of the
Majority Lenders shall) give notice of its wish to resign at any time
by giving at least 30 days' prior written notice to the Borrower and
the other Finance Parties.
25.2 Appointment of successor
If the Agent gives notice under clause 25.1 (Notice of resignation),
then the Majority Lenders, after consultation with the Borrower, may in
writing appoint a successor with an office in Hong Kong. If no such
successor is appointed or has not accepted office within 30 days of the
date of service of the notice of resignation as replacement Agent the
Agent may, after consultation with the Borrower, appoint a successor
for itself.
25.3 Provisions relating to successor
(A) Upon such appointment in writing and after execution by such
successor of such documents as may be necessary to transfer and
vest in the new Agent all the rights and obligations of the
retiring Agent, the retiring Agent shall be discharged from any
further obligations (but not, for the avoidance of doubt, from any
liability which such party shall have actually incurred at the
date of such retirement) under the Finance Documents (but shall
remain entitled to the benefit of clause 23 (Agent)) and its
successor and each of the other parties shall have the same rights
and obligations amongst themselves as they would have had if such
successor had been an original party to the Finance Documents; and
(B) the costs, charges and expenses of the resigning Agent shall be
discharged if recoverable under the provisions of this Agreement.
25.4 Transfer to Affiliates
Notwithstanding the above, the Agent may transfer its role to an
Affiliate of the Agent without the need to obtain the consent of the
Finance Parties, provided that the Agent gives at least 30 days notice
of such transfer to the Borrower and the Finance Parties.
26. SHARING AMONG LENDERS
26.1 Payments to Lenders
If a Lender (a "Recovering Lender") receives or recovers any amount
from the Borrower other than in accordance with clause 27 (Payment
mechanics) and applies that amount to a payment due under the Finance
Documents then:
(A) the Recovering Lender shall, within three Business Days, notify
details of the receipt or recovery, to the Agent;
(B) the Agent shall determine whether the receipt or recovery is in
excess of the amount the Recovering Lender would have been paid
had the receipt or recovery been received or made by the Agent and
distributed in accordance with clause 27 (Payment mechanics),
without taking account of any Tax which would be imposed on the
Agent in relation to the receipt, recovery or distribution; and
53
(C) the Recovering Lender shall, within three Business Days of demand
by the Agent, pay to the Agent an amount (the "Sharing Payment")
equal to such receipt or recovery less any amount which the Agent
determines may be retained by the Recovering Lender as its share
of any payment to be made, in accordance with clause 27.5 (Partial
payments).
26.2 Redistribution of payments
The Agent shall treat the Sharing Payment as if it had been paid by the
Borrower and distribute it between the Finance Parties (other than the
Recovering Lender) in accordance with clause 27.5 (Partial payments).
26.3 Recovering Lender's rights
(A) On a distribution by the Agent under clause 26.2 (Redistribution
of payments), the Recovering Lender will be subrogated to the
rights of the Finance Parties which have shared in the
redistribution.
(B) If and to the extent that the Recovering Lender is not able to
rely on its rights under paragraph (A) above, the Borrower shall
be liable to the Recovering Lender for a debt equal to the Sharing
Payment which is immediately due and payable.
26.4 Reversal of redistribution
If any part of the Sharing Payment received or recovered by a
Recovering Lender becomes repayable and is repaid by that Recovering
Lender, then:
(A) each Lender which has received a share of the relevant Sharing
Payment pursuant to clause 26.2 (Redistribution of payments)
shall, upon request of the Agent, pay to the Agent for account of
that Recovering Lender an amount equal to its share of the Sharing
Payment (together with an amount as is necessary to reimburse that
Recovering Lender for its proportion of any interest on the
Sharing Payment which that Recovering Lender is required to pay);
and
(B) that Recovering Lender's rights of subrogation in respect of any
reimbursement shall be cancelled and the Borrower will be liable
to the reimbursing Lender for the amount so reimbursed.
26.5 Exceptions
(A) This clause 26 shall not apply to the extent that the Recovering
Lender would not, after making any payment pursuant to this
clause, have a valid and enforceable claim against the Borrower.
(B) A Recovering Lender is not obliged to share with any other Lender
any amount which the Recovering Lender has received or recovered
as a result of taking legal or arbitration proceedings, if:
(1) it notified the other Lenders of the legal or arbitration
proceedings; and
(2) the other Lender had an opportunity to participate in those
legal or arbitration proceedings but did not do so as soon
as reasonably practicable having received notice or did not
take separate legal or arbitration proceedings.
54
27. PAYMENT MECHANICS
27.1 Payments to the Agent
(A) On each date on which a payment is due from the Borrower or
any Lender under this Agreement or any other Finance
Document, the Borrower or that Lender shall make such
payment to the Agent by 11:00 a.m. in immediately available
funds to such account of the Agent in Hong Kong in Hong
Kong Dollars as the Agent may have specified for this
purpose.
(B) Payments of principal, interest, default interest,
commitment fee, Taxes, Increased Costs, Unpaid Sums and
Break Costs shall be made in Hong Kong Dollars.
(C) Any payment of losses, costs, Taxes and expenses shall be
paid in the currency in which they were incurred.
27.2 Distributions by the Agent
Each payment received by the Agent under the Finance Documents for
another party shall, subject to clause 27.3 (Distributions to the
Borrower) and clause 27.4 (Clawback) be made available by the Agent as
soon as practicable after receipt to the party entitled to receive
payment in accordance with this Agreement (in the case of a Lender, for
the account of its Facility Office), to such account as that party may
notify to the Agent by not less than five Business Days' notice being
an account with a bank in the principal financial centre of the country
of that currency.
27.3 Distributions to the Borrower
The Agent may (with the consent of the Borrower or in accordance with
clause 29 (Set-off)) apply any amount received by it for the Borrower
in or towards payment (on the date and in the currency and funds of
receipt) of any amount due from the Borrower under the Finance
Documents or in or towards purchase of any amount of any currency to be
so applied.
27.4 Clawback
(A) Where a sum is to be paid to the Agent under the Finance Documents
for another party, the Agent is not obliged to pay that sum to
that other party (or to enter into or perform any related exchange
contract) until it has been able to establish to its satisfaction
that it has actually received that sum.
(B) If the Agent pays an amount to another party and it proves to be
the case that the Agent had not actually received that amount,
then the party to whom that amount (or the proceeds of any related
exchange contract) was paid by the Agent shall on demand refund
the same to the Agent together with interest on that amount from
the date of payment to the date of receipt by the Agent,
calculated by the Agent to reflect its cost of funds.
27.5 Partial payments
(A) If the Agent receives a payment that is insufficient to discharge
all the amounts then due and payable by the Borrower under the
Finance Documents, the Agent shall apply that payment towards the
obligations of the Borrower under the Finance Documents in the
following order:
55
(1) first, in or towards payment pro rata of any unpaid fees,
costs and expenses of the Agent under the Finance
Documents;
(2) secondly, in or towards payment pro rata of any accrued
interest or commission due but unpaid under this Agreement;
(3) thirdly, in or towards payment pro rata of any principal
due but unpaid under this Agreement; and
(4) fourthly, in or towards payment pro rata of any other sum
due but unpaid under the Finance Documents.
(B) The Agent shall, if so directed by the Majority Lenders, vary
the order set out in sub-paragraphs (A)(2) to (4) above.
(C) Paragraphs (A) and (B) above will override any appropriation
made by the Borrower.
27.6 No set-off by the Borrower
All payments to be made by the Borrower under the Finance Documents
shall be calculated and be made without (and free and clear of any
deduction for) set-off or counterclaim.
28. PAYMENT OF TAXES AND RECOVERIES
28.1 Payment of Taxes
The Agent shall be entitled to make the deductions and withholdings (on
account of Taxes or otherwise) from payments to the Agent under the
Finance Documents or any other Finance Party, which it is required by
any applicable law to make and to pay all Taxes assessed against it by
virtue of its capacity as agent or any act done by it in such capacity.
28.2 Application of recoveries
All sums recovered by the Agent or any of the Lenders shall be applied
as follows:
(A) first, to pay to the Agent the amount of any fees due from the
Borrower and in addition such sums as shall be necessary to
reimburse the Agent for all costs (including legal costs), charges
and expenses properly incurred by it in its capacity as such under
or in connection with the Finance Documents and to indemnify it
fully against any obligations or liabilities incurred by it in its
capacity as Agent; and
(B) second, in accordance with the provisions of clause 27.5(A)
(Partial payments).
56
PART 9: MISCELLANEOUS
29. SET-OFF
A Finance Party may set off any matured obligation due from the
Borrower under the Finance Documents (to the extent beneficially owned
by that Finance Party) against any matured obligation owed by that
Finance Party to the Borrower, regardless of the place of payment,
booking branch or currency of either obligation. If the obligations are
in different currencies, the Finance Party may convert either
obligation at a market rate of exchange in its usual course of business
for the purpose of the set-off.
30. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
(A) interfere with the right of any Finance Party to arrange its
affairs (tax or otherwise) in whatever manner it thinks fit;
(B) oblige any Finance Party to investigate or claim any credit,
relief, remission or repayment available to it or the extent,
order and manner of any claim; or
(C) oblige any Finance Party to disclose any information relating to
its affairs (tax or otherwise) or any computations in respect of
Tax.
31. NOTICES
31.1 Communications through the Agent
Save as expressly provided to the contrary in this Agreement, any
communication or document from or to any Finance Party from or to any
other party to this Agreement shall be sent in writing to or through
the Agent.
31.2 Addresses
Any notices, demands, proceedings or other documents made in writing to
be sent to any party to this Agreement under this Agreement shall be
addressed to such party at the address or facsimile number and marked
for the attention of the person (if any) from time to time designated
by that party in writing to the Agent (or, in the case of the Agent, by
it to each other party to this Agreement) for the purpose of this
Agreement. The initial address and facsimile number and person(s) (if
any) so designated by each party are set out under its name at the end
of this Agreement. The initial address and facsimile number and
person(s) (if any) so designated by a New Lender are those set out at
the end of the relevant Transfer Certificate.
31.3 Deeming provisions
(A) Any communication to the Borrower or to any Finance Party shall be
deemed to have been received by that Borrower or that Finance
Party:
(1) if delivered by hand, at the time of actual delivery;
(2) if transmitted by facsimile, at the time the facsimile
transmission report (or other appropriate evidence)
confirming that the facsimile transmission has
57
been transmitted to the addressee is received by the
sender; and
(3) if sent by post at noon on the second Business Day (in the
case of an address in Hong Kong) or the fifth Business Day
(in the case of an address outside Hong Kong) following the
day of posting and shall be effective even if it is
misdelivered or returned undelivered.
In proving such service it shall be sufficient to prove that
personal delivery was made, or that the envelope containing the
communication Swas correctly addressed and posted, or that a
facsimile transmission report (or other appropriate evidence) was
obtained that the facsimile had been transmitted to the addressee.
(B) Any communication to the Agent shall be deemed to have been given
only on actual receipt by the Agent.
32. CALCULATIONS AND CERTIFICATES
32.1 Accounts
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters
to which they relate.
32.2 Certificates and determinations
Any certification or determination by a Finance Party of a rate or
amount under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates. Each Finance
Party in making any certification or determination shall act in good
faith.
32.3 Day count convention
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual
number of days elapsed and a year of 365 days.
33. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of
such provision under the law of any other jurisdiction will in any way
be affected or impaired.
34. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver, nor shall any single or partial exercise of any
right or remedy prevent any further or other exercise or the 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.
58
35. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts,
and this has the same effect as if the signatures on the counterparts
were on a single copy of the Finance Document.
PART 10: GOVERNING LAW AND ENFORCEMENT
36. GOVERNING LAW
This Agreement is governed by and construed in accordance with the Laws
of Hong Kong.
37. ENFORCEMENT
Jurisdiction of Hong Kong courts:
(A) The courts of Hong Kong have exclusive jurisdiction to settle any
dispute arising out of or in connection with this Agreement
(including a dispute regarding the existence, validity or
termination of this Agreement) (a "Dispute").
(B) The Parties agree that the courts of Hong Kong are the most
appropriate and convenient courts to settle Disputes and
accordingly no party will argue to the contrary.
(C) This clause 37 is for the benefit of the Finance Parties only. As
a result, no Finance Party shall be prevented from taking
proceedings relating to a Dispute in any other courts with
jurisdiction. To the extent allowed by law, the Finance Parties
may take concurrent proceedings in any number of jurisdictions.
59
SCHEDULE 1: THE ORIGINAL LENDER
Name of the Original Lender Commitment (HK$)
--------------------------- ----------------
Industrial and Commercial Bank of China (Asia) Limited
2,000,000,000
-------------
TOTAL: 2,000,000,000
=============
60
SCHEDULE 2: CONDITIONS PRECEDENT (clause 4.1)
1. Borrower Corporate Documents
(A) Certified copies of the certificate of incorporation, certificate
of incorporation on change of name (if any) and up-to-date
memorandum and articles of association of the Borrower.
(B) A certified copy of a resolution (or an extract thereof) of the
board of directors of the Borrower:
(1) approving the terms of, and the transactions contemplated
by, the Finance Documents to which it is a party and
resolving that it executes the Finance Documents to which
it is a party;
(2) authorising a specified person or persons to execute the
Finance Documents to which it is a party on its behalf; and
(3) authorising a specified person or persons, on its behalf,
to sign and/or despatch all documents and notices
(including any Drawdown Notice) to be signed and/or
despatched by it under or in connection with the Finance
Documents to which it is a party.
(C) A specimen of the signature of each person authorised by the
resolution referred to in paragraph (B) above.
(D) The Original Financial Statements.
(E) A certificate signed by an authorised signatory of the Borrower to
the effect that :
(1) the resolution in paragraph (B) has been duly and properly
passed and is attached;
(2) such resolution is still in effect and has not been varied
or rescinded; and
(3) borrowing the Total Commitments would not cause any
borrowing or similar limit binding on the Borrower to be
exceeded.
2. Legal opinion
(A) A legal opinion of Lovells, legal advisers to the Finance Parties,
addressed to the Agent (for and on behalf of itself and the
Lenders), as to Hong Kong Law, substantially in the form
distributed to such parties prior to signing this Agreement which
will include customary assumptions and reservations.
(B) A legal opinion of Xxxxxxx & Xxxxxxx, legal advisers to the
Borrower, addressed to the Agent (for and on behalf of itself and
the Lenders), as to Hong Kong Law, substantially in the form
distributed to such parties prior to signing this Agreement which
will include customary assumptions and reservations.
61
3. Other documents and evidence
(A) The Fee Letter duly executed by the Borrower.
(B) The fees, costs and expenses then due from the Borrower
pursuant to clause 10 (Fees) and clause 15 (Costs and
expenses) have been paid.
(C) Executed copies of each Finance Document.
(D) A list of Encumbrances in existence on or prior to the date of
this Agreement created by the Borrower or any Principal
Subsidiary (other than the Listed Principal Subsidiaries and
their Subsidiaries) executed by an authorised signatory of the
Borrower.
62
SCHEDULE 3: DRAWDOWN NOTICE (clause 4.2(A))
From: PCCW-HKT Telephone Limited
To: Industrial and Commercial Bank of China (Asia) Limited (as Agent)
10/F, 000-000 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Attn: Xxxxxx Xxxxx / Xxx Xxxx, Loans Processing Dept.
Date: [o]
Dear Sirs
HK$2,000,000,000 Revolving Loan Facility Agreement dated 22 December 2003 with
PCCW-HKT Telephone Limited as borrower (the "Facility Agreement")
We refer to the Facility Agreement (as the same may from time to time be
amended, varied, supplemented, restated or novated). Terms defined in the
Facility Agreement shall have the same meanings when used in this notice.
We:
(a) give you notice that we request for an advance under the Facility in an
amount of HK$[insert amount] (or if less, the Available Facility) on
[insert date];
[(b) request that the proceeds of such advance are to be made available by
credit directly to the following account:
[o]] *
(c) confirm that the Interest Period of such advance shall be
[one/two/three/six/longer period]* Month(s) [provided that, if this
request for a 6 month or longer period is not accepted by the Lenders,
we shall be deemed to have requested an Interest Period of
[one/two/three]* Month(s) being the Fallback Period]; *
(d) confirm that the representations and warranties referred to and deemed
to be repeated in accordance with clause 16.18 (Repetition) of the
Facility Agreement are true and accurate as if made on the date of this
notice with reference to the facts and circumstances now existing;
(e) confirm that no [Event of Default/Default]* is Continuing or would
result from the making of such advance; and
(f) [confirm that no Material Adverse Change has occurred since the date of
the Facility Agreement or, if later, the date of the latest Financial
Statements delivered to you pursuant to clause 17.1 (Financial
Statements) of the Facility Agreement.]*
This Drawdown Notice is irrevocable and is governed by Hong Kong law.
Yours faithfully
For and on behalf of
PCCW-HKT Telephone Limited
........................................
Name:
Title:
* delete if not applicable
63
SCHEDULE 4: FORM OF TRANSFER CERTIFICATE (clause 21.5)
To: Industrial and Commercial Bank of China (Asia) Limited (as Agent)
10/F, 000-000 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Attn: Xxxxxx Xxxxx / Xxx Xxxx, Loans Processing Dept.
From: [The Existing Lender] (the "Existing Lender") and [The New Lender]
(the "New Lender")
Date: [o]
Dear Sirs
HK$2,000,000,000 Revolving Loan Facility Agreement dated 22 December 2003 with
PCCW-HKT Telephone Limited as borrower (the "Facility Agreement")
We refer to the Facility Agreement (as the same may from time to time be
amended, varied, supplemented, restated or novated). Terms defined in the
Facility Agreement shall have the same meanings when used in this notice.
1. We refer to clause 21.5 (Procedure for transfer) of the Facility
Agreement:
(A) The Existing Lender and the New Lender agree to the Existing
Lender and the New Lender transferring by novation all or part of
the Existing Lender's Commitment, rights and obligations referred
to in the Schedule in accordance with clause 21.5 (Procedure for
transfer).
(B) The proposed Transfer Date is [o].
(C) The Facility Office and address, fax number and attention details
for notices of the New Lender for the purposes of clause 31.2
(Addresses) are set out in the Schedule.
2. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (C) of clause 21.4
(Limitation of responsibility of Existing Lenders) and the provisions
regarding outstanding waivers and consents in sub-paragraph (B)(4) of
clause 21.4.
3. This transfer Certificate is governed by Hong Kong law.
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THE SCHEDULE
Details of Participation to be transferred
Transfer Details :
Interest Period(s) : [o]
Participation Transferred
Commitment Transferred
Drawn Amount : [o]
Undrawn Amount : [o]
Administrative Details of New Lender
Name of New Lender:
Facility Office:
Address for service of notices (if different):
Account for payments:
Telephone:
Telex:
Facsimile:
Attention:
Date: ______________________________ Date: _____________________________
SIGNED by ___________________________ SIGNED by _________________________
For and on behalf of [Existing Lender] For and on behalf of [New Lender]
Date: ______________________________
SIGNED by___________________________
For and on behalf of the Agent and all
the other parties to the Facility
Agreement
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SCHEDULE 5: FORM OF ASSIGNEE'S UNDERTAKING (clause 21.2(A))
To: (1) Industrial and Commercial Bank of China (Asia) Limited (as Agent)
10/F, 000-000 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Attn: Xxxxxx Xxxxx / Xxx Xxxx, Loans Processing Dept.
(2) PCCW-HKT Telephone Limited
00xx Xxxxx, XXXX Xxxxx
XxxXxx Xxxxx
000 Xxxx'x Xxxx
Xxxxxx Xxx
Xxxx Xxxx
Attention: Company Secretary
Date: [o]
Assignee's Undertaking
This Assignee's Undertaking relates to a facility agreement (the "Agreement",
which expression shall include any amendments to it in force from time to time)
dated 22 December 2003 between PCCW-HKT Telephone Limited as Borrower and
Industrial and Commercial Bank of China (Asia) Limited as Agent, Co-ordinating
Arranger and Original Lender. Terms defined in the Agreement shall have the same
meanings in this Assignee's Undertaking.
1. [*insert name of Assignor Bank*] (the "Assignor")
(a) confirms that the details appearing in the attached Schedule are
correct; and
(b) assigns to [*insert name of Assignee Bank*] (the "Assignee") the
portion of the Loan(s) specified in the attached Schedule by
countersigning and delivering this Assignee's Undertaking to the
Agent at its address for the service of notice specified in the
Agreement.
2. The Assignee requests the Agent to accept this Assignee's Undertaking
as being delivered under and for the purpose of paragraph (B) of clause
21.2 of the Agreement so as to take effect in accordance with the terms
of such clause on [*insert date of assignment*] (the "Assignment Date")
[or on such later date as may be determined in accordance with its
terms].
3. The Assignee undertakes to the Agent, the Assignor and each of the
other parties to the Agreement that it will be bound by the terms of
the Finance Documents as a Lender after delivery of this Assignee's
Undertaking to the Agent and after satisfaction of the conditions (if
any) subject to which this Assignee's Undertaking is expressed to take
effect.
4. The Assignee shall be substituted for the Assignor in respect of all of
the rights of the Assignor under Finance Documents and have the same
rights against the Borrower as it would have had if it had been an
original party to the Agreement.
5. The Assignee confirms that:
66
(a) it has received copies of the Finance Documents and all other
documentation and information required by the Assignee in
connection with the transactions contemplated by this
Assignee's Undertaking;
(b) it has made and will continue to make its own assessment of
the adequacy, legality, enforceability and validity of the
Finance Documents and this Assignee's Undertaking and has not
relied and will not rely on the Agent or any statements made
by it in that respect;
(c) it has made and will continue to make its own credit
assessment of the Borrower and the other parties to the
Finance Documents and has not relied and will not rely on the
Agent or any statements made by the Agent in that respect; and
(d) the Agent shall not have any liability or responsibility to
the Assignee in respect of any of the foregoing matters.
6. The Assignor makes no representation or warranty and assumes no
responsibility with respect to the adequacy, legality, enforceability
or validity of any Finance Document and assumes no responsibility for
the financial condition of the Borrower or any other party to any
Finance Document or for the performance and observance by the Borrower
or any other such party of any of its obligations under any Finance
Document and all such conditions and warranties, whether expressed or
implied by law or otherwise, are excluded.
7. Nothing in this Assignee's Undertaking, any Finance Document obliges
the Assignor to:
(a) accept a re-assignment from the Assignee of any of the rights
and/or obligations assigned, transferred or novated under
clause 21 (Changes to the Lenders) of the Agreement; or
(b) support any losses incurred by the Assignee by reason of the
non-performance by the Borrower of any of its obligations
under any Finance Document or otherwise.
8. This Assignee's Undertaking and the rights and obligations of the
parties under it shall be governed by and construed in accordance with
the law of Hong Kong.
Note: This Assignee's Undertaking is not a security, bond, note, debenture,
investment or other similar instrument.
AS WITNESS the hands of the authorised signatories of the parties the day and
year first above written.
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SCHEDULE TO ASSIGNEE'S UNDERTAKING
Details of Participation to be assigned
Assignment Details :
Interest Period(s) : [o]
Amount of Participation Assigned : [o]
Administrative Details of Assignee
Name of Assignee:
Facility Office:
Address for service of
notices (if different):
Account for payments:
Telephone:
Facsimile No:
Attention:
Dated: .......................... Dated: ..........................
SIGNED by ....................... SIGNED by........................
for and on behalf of for and on behalf of
[*Assignor Bank*] [*Assignee Bank*]
68
SCHEDULE 6: FORM OF CONFIDENTIALITY UNDERTAKING (clause 21.9)
PCCW-HKT Telephone Limited
00xx Xxxxx, XXXX Xxxxx
XxxXxx Xxxxx
000 Xxxx'x Xxxx
Xxxxxx Xxx
Xxxx Xxxx
Attention: Company Secretary
Date: [o]
Dear Sirs
HK$2,000,000,000 Revolving Loan Facility Agreement dated 22 December 2003 with
PCCW-HKT Telephone Limited as borrower (the "Facility Agreement")
We refer to the above Facility Agreement, a copy of which has been (or will be
upon execution of this Undertaking) provided to us. Capitalised terms used
herein and not otherwise defined shall have the same meaning as in the Facility
Agreement. We may from time to time have access to a number of agreements and
other non-public, confidential proprietary information regarding the
Borrower/Borrower Group and the Facility (the "Confidential Information").
In consideration of your supplying or agreeing to the supply of, such
Confidential Information to us, by signature of this letter we undertake:
1. (a) to hold and ensure that our officers, employees and agents
hold the Confidential Information whether received in written,
diskette or electronic medium, in complete confidence and not
disclose or otherwise make available the whole or any part of the
Confidential Information to any third party;
(b) upon written demand from you, to:
(i) return the Confidential Information and any copies of it to
you; or
(ii) confirm to you in writing that it has been destroyed,
save that we shall be permitted to retain one copy of the
Confidential Information for legal, regulatory, compliance or
internal records purpose and we undertake to keep such information
confidential on the terms of this letter.
2. Subject to paragraph 1 above, we shall be entitled to disclose the
Confidential Information:
(a) to any affiliate, subsidiary or outside professional
consultant in connection with the Facility but only after
first obtaining an agreement of confidentiality in similar
form to this letter from such affiliate, subsidiary or
consultant;
(b) where we are required to disclose the Confidential Information
by law or any regulatory or governmental authority.
69
3. Nothing in paragraphs 1(a) and (b) of this letter shall apply to any
Confidential Information which:
(a) at the time of its disclosure is in the public domain or comes
into the public domain for any reason except our failure, or
failure on the part of any disclosee, to comply with the terms
of this letter;
(b) is disclosed on a non-confidential basis;
(c) was lawfully in our possession prior to such disclosure; or
(d) is subsequently received by us from a third party without
obligations of confidentiality.
4. We acknowledge and agree that you may be irreparably harmed by the
breach of the terms of this letter and that damages may not be an
adequate remedy.
5. Our obligations under this letter shall terminate at such time as we
become a party to the Facility Agreement and bound by the terms
thereof.
This letter shall be governed by Hong Kong law.
Yours faithfully
For and on behalf of
---------------------------
[Authorised Signatory]
[Title]
70
SCHEDULE 7: FORM OF COMPLIANCE CERTIFICATE (clause 17.2(D))
To: Industrial and Commercial Bank of China (Asia) Limited (as Agent)
10/F, 000-000 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Attn: Xxxxxx Xxxxx / Xxx Xxxx, Loans Processing Dept.
Date: [o]
HK$2,000,000,000 Revolving Loan Facility Agreement dated 22 December 2003 with
PCCW-HKT Telephone Limited as borrower (the "Facility Agreement")
We refer to the Facility Agreement (as the same may from time to time be
amended, varied, supplemented, restated or novated). Terms defined in the
Facility Agreement shall have the same meanings when used in this certificate.
Financial Covenants
We confirm that, in respect of the Relevant Period from [o] to [o]:
(A) EBITDA was HK$[o];
(B) Total Debt of the Borrower Group as at the last day of the Relevant
Period was HK$[o];
(C) Interest for the Relevant Period was HK$[o]; and
(D) therefore:
(1) the ratio of EBITDA to Interest for such Relevant Period was
[o] to 1; and
(2) the ratio of Total Debt of the Borrower Group to EBITDA for
such Relevant Period was [o] to 1.
...........................................
For and on behalf of [name of auditors]* /
PCCW-HKT Telephone Limited
* delete as appropriate
71
AS WITNESS the hands of the duly authorised representatives of the parties on
the date first above written.
SIGNATORIES
THE BORROWER
PCCW-HKT TELEPHONE LIMITED
00xx Xxxxx
XXXX Xxxxx
XxxXxx Xxxxx
000 Xxxx'x Xxxx
Xxxxxx Xxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000 (copy (000) 0000 0000)
Attention: Company Secretary / Group Treasurer
By: (Sd) W. Xxxxxxx Xxxxx
(Sd) Xxxxxx Xxxx
THE CO-ORDINATING ARRANGER AND THE ORIGINAL LENDER
INDUSTRIAL AND COMMERCIAL BANK OF CHINA (ASIA) LIMITED
10/F, 000-000 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Xxxxxx Xxxxx / Xxx Xxxx, Loans Processing Dept.
By: (Sd) Xxxxxx Xxx
(Sd) Xxxxx Xxxxx
72
THE AGENT
INDUSTRIAL AND COMMERCIAL BANK OF CHINA (ASIA) LIMITED
10/F, 000-000 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Xxxxxx Xxxxx / Xxx Xxxx, Loans Processing Dept.
By: (Sd) Xxxxxx Xxx
(Sd) Xxxxx Xxxxx
73
