FACILITY LETTER
BANKING FACILITY OF
U.S. DOLLARS 20 MILLION
DATED: AUGUST 5, 1996
BETWEEN
THE BANK OF TOKYO-MITSUBISHI, LTD.
BEIJING BRANCH
AS LENDER
AND
HEBEI UNITED TELECOMMUNICATIONS ENGINEERING CO., LTD.
AS BORROWER
TERM LOAN AGREEMENT
TERM LOAN AGREEMENT dated as of August 5, 1996 between Hebei United
Telecommunications Engineering Co. Ltd., a legal person organized under the
laws of the People's Republic of China (the "Borrower"), and The Bank of
Tokyo-Mitsubishi, Ltd. (the "Bank") through its Beijing Branch (the "Bank's
Office"). The parties hereto hereby agree as follows:
Article I
AMOUNT AND TERMS OF THE LOAN
Section 1.01. TERM LOAN; DRAWDOWN PERIOD. The Bank agrees on the terms
and conditions hereinafter set forth to make advances in minimum amounts of Five
Hundred Thousand Dollars (US$500,000.00) each to the Borrower (in the aggregate,
the "Loan") from the date of this Agreement until the first anniversary of
the date of this Agreement up to the principal amount of Twenty
Million United States Dollars (US$20,000,000.00).
Section 1.02. NOTICE AND MANNER OF BORROWING. The Borrower shall give
the Bank at least three (3) days' prior notice of any request for an advance
under this Agreement, specifying the date and amount thereof. Not later than 10
A.M. on the date of such advance and upon fulfillment of the applicable
conditions set forth in Article II, the Bank will make such advance available to
the Borrower in immediately available funds by crediting the amount thereof to
the Borrower's account with the Bank.
Section 1.03. INTEREST. The Borrower shall pay interest to the Bank on the
outstanding and unpaid principal amount of the Loan at a rate per annum equal to
_____ percent (6.82%). Interest shall be calculated on the basis of a year of
three hundred and sixty (360) days for the actual number of days elapsed.
Interest shall be paid immediately available funds six months after the date of
this Agreement, every six months thereafter, and at maturity at the Bank's
Office. Any principal amount not paid when due (at maturity, by acceleration,
or otherwise) shall bear interest thereafter until paid in full, payable upon
demand, at a rate which shall be 15 percent (15%) per annum.
Section 1.04. TERM. The principal of the Loan shall be repaid in five
(5) equal, consecutive, semi-annual installments, each in an amount equal to
one-fifth (1/5) of the principal amount of the Loan outstanding on the third
anniversary of the date of this Agreement with subsequent installments on the
last day of each of the next four six-month periods thereafter, provided,
however, that the last such installment shall be in the amount necessary to
repay in full the unpaid principal amount of the Loan.
Section 1.05. PREPAYMENTS. There shall be no prepayment of the advances
made under this Agreement.
Section 1.06. METHOD OF PAYMENT. The Borrower shall make each payment
under this Agreement not later than 1 P.M. on the date when due in lawful money
of the United States to the Bank at the Bank's Office in immediately available
funds. Whenever any payment to be made under this Agreement shall be stated to
be due on a day other than a day on which the Bank's Office is open for
business, such payment shall be made on the next succeeding day on which it is
open, and such reduction of time shall in such case be included in the
computation of payment of interest. All payments hereunder shall be free and
clear of and without deduction of any tax, stamp duty, set-off or counterclaim.
If the Borrower is prohibited by the operation of law from making payments
without deduction, the payments due to the Bank shall be increased to equal
the amounts which would have been received as if such deduction or withholding
was not required.
Section 1.07. USE OF PROCEEDS. The proceeds of the Loan hereunder shall
be used by the Borrower to make payments to its local and foreign suppliers and
contractors for the purchase, leasing, construction, installation and
acquisition by other means of telecommunications equipment and facilities for
use in providing telecommunications related services in Hebei Province.
Article II
CONDITIONS PRECEDENT
Section 2.01. CONDITIONS PRECEDENT TO THE LOAN. The obligations of the Bank
hereunder are subject to the conditions precedent that the Bank shall have
received on or before the day of:
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(a) the first advance under this Agreement, in form and substance satisfactory
to the Bank, a guaranty of all of the obligations of the Borrower under this
Agreement by NTT International Corporation; and
(b) the first and every advance under this Agreement, upon request by the Bank,
evidence satisfactory to the Bank that the Borrower has obtained all
authorizations, consents, approvals and registrations, including but not limited
to a copy of the State Administration of Exchange Control ("SAEC") Registration
issued to the Borrower, following the Borrower's presentation to SAEC officials
a copy of this Agreement and its Chinese translation within fifteen (15) days of
signing this Agreement.
Article III
EVENTS OF DEFAULT
Section 3.01. EVENTS OF DEFAULT. If the Borrower fails either to pay the
principal of, or interest on, the Loan, as and when due and payable, or, upon
request by the Bank, provide to the Bank evidence satisfactory to the Bank that
the Borrower has obtained all those authorizations, consents, approvals and
registrations required from any governmental authority, as more specifically
described in Section 2.01(b) above, the Bank may by notice to the Borrower,
declare the Loan and all interest thereon to be immediately due and payable,
whereupon the Loan and all such interest shall become and be forthwith due and
payable.
Article IV
COMMITMENT FEE
Section 4.01. COMMITMENT FEE. The Borrower shall pay the Bank a
commitment fee calculated from and including the execution date of this
Agreement to the first anniversary thereof at a rate of one-eighth percent
(1/8%) per annum on the undrawn portion of the facility. Such commitment fee
shall accrue from day to day and be computed on the basis of a year of three
hundred and sixty (360) days and the actual number of days elapsed and shall be
paid in arrears on the first anniversary of the date of this Agreement.
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Article V
CHANGE IN CIRCUMSTANCES
Section 5.01. CHANGE IN CIRCUMSTANCES. If any change in the applicable
laws, ordinances, rules and regulations of the People's Republic of China
makes it unlawful for the Bank to continue its obligations under this
Agreement, those obligations shall terminate immediately, and the Borrower,
on demand from the Bank, shall repay the amount of total advances outstanding
under this Agreement plus any accrued interest. If under the applicable laws
of the People's Republic of China, the Borrower can not lawfully repay those
amounts, the Bank and the Borrower shall negotiate in good faith toward a
solution restoring those amounts to the Bank.
Article VI
MISCELLANEOUS
Section 6.01. COSTS, EXPENSES, AND TAXES. The Borrower agrees to pay on
demand all costs incurred by the Bank in connection with the preparation and
administration of this Agreement, and of any amendment, modification or
supplement to it, including, without limitation, reasonable fees and
out-of-pocket expenses of counsel for the Bank incurred in connection with
preparation of this Agreement. The Borrower also agrees to pay all such costs,
including arbitration and court costs, incurred in connection with enforcement
of this Agreement, or any amendment, modification of supplement thereto, whether
by negotiations, legal proceedings or otherwise. In addition, the borrower
shall pay any and all stamp and other taxes and fees payable or determined to be
payable in connection with the execution, delivery, filing and recording of this
Loan Agreement, and agrees to hold the Bank harmless from and against any and
all liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes and fees. This provision shall survive termination
of this Agreement.
Section 6.02. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of Japan.
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Section 6.03. ARBITRATION. Any dispute arising out of this Agreement,
including any question regarding its existence or validity, shall be finally
resolved in Tokyo, Japan by arbitration under the arbitration rules of the
Japanese Commercial Arbitration Association as at present in force.
Article VII
GUARANTY
Section 7.01. GUARANTY. The Bank shall have received a guaranty of all of the
obligations of the Borrower under this Agreement by NTT International
Corporation.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective officers thereunto duly authorized, as
of the date first above written.
HEBEI UNITED TELECOMMUNICATIONS
ENGINEERING CO.
By: /s/ [illegible]
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Title: [illegible]
[SEAL][SEAL]
THE BANK OF TOKYO-MITSUBISHI, LTD.
By: /s/ [illegible]
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Title:
5
APPENDIX I
FORM OF NOTICE OF DRAWING
To: The Bank of Tokyo-Mitsubishi, Ltd.
Beijing Branch
Beijing Fortune Building
No. ▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇: Loan Department
Dear Sirs:
RE: U.S. Dollar 20 Million
Facility Letter dated August 5, 1996
------------------------------------
We refer to the above Facility Letter between you and us. Terms defined in the
Facility Letter have the same meaning herein.
We hereby give you notice that we wish to borrow a principal amount of
__________ from ____________ to ___________ or, if any such date is not a
Banking Day, on the next succeeding Banking Day, provided, however, that such
period shall not end after the Maturity Date. Such amount should be credited to
our account number [ ] at [ ].
We confirm that:
no Event of Default or other event which, with the passing of time or
giving of notice or both, would constitute an Event of Default has occurred
which remains unwaived or unremedied.
For and on behalf of
Hebei United Telecommunications Engineering Co., Ltd.
By: Dated:
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