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EXHIBIT 10.1
DATED 28th June , 2001
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SUPPLY CHAIN SERVICES LIMITED
as BORROWER
and
DIGITAL WORLD FINANCE LIMITED
as LENDER
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LOAN AGREEMENT
re
HK$2,000,000.00 LOAN FACILITY
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J. CHAN, YIP, SO & PARTNERS
Solicitors & Notaries
31 New ▇▇▇▇▇ House
10 Ice House Street Tel: ▇▇▇▇ ▇▇▇▇
Central Fax: ▇▇▇▇-▇▇▇▇
Hong Kong Ref: L4612/2001/JWLY
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THIS AGREEMENT is made on 28th June, 2001
BETWEEN
1. SUPPLY CHAIN SERVICES LIMITED ( ), a company
incorporated and registered in Hong Kong having its registered office at 31
New ▇▇▇▇▇ House, 10 Ice House Street, Central, Hong Kong (the "Borrower");
and
2. DIGITAL WORLD FINANCE LIMITED ( ), a company
incorporated and registered in Hong Kong having its registered office at
▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ Diamond ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇-▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ (the "Lender").
NOW IT IS AGREED as follows:
1. INTERPRETATION
Words and phrases appearing in this Agreement shall be read and construed
in accordance with the definitions and provisions in Schedule 1.
2. THE FACILITY
2.1 Subject to the terms and conditions of this Agreement, the Lender agrees to
make available to the Borrower a loan facility of up to the maximum principal
amount of HK$2,000,000.00.
2.2 The Borrower shall use the entire proceeds of the Facility for the purpose
specified and in the manner provided in Clause 4.1 but, except for complying
with the provisions of that Clause, the Lender need not check that the Borrower
does do.
3. CONDITIONS PRECEDENT
3.1 The obligation of the Lender to make the Facility available to the Borrower
is conditional upon, and the Borrower shall not request that the Facility be
made available until, the Lender confirms that it has received and found to be
satisfactory each of the items and evidence (as the case may be) listed in
Schedule 2.
3.2 The obligation of the Lender to make the Facility available to the
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Borrower is further subject to the condition that at the time of a drawdown of
the Facility:
(a) all representations and warranties in Clause 12 have been complied with
and will be true and correct in all respects; and
(b) no Event of Default has occurred, which has not been waived or
remedied, or occurs and is not waved or remedied on or prior to the
proposed date of the drawdown of the Facility or will occur as a result of
the drawdown of the Facility and no event has occurred which with the lapse
of time or giving of notice would become an Event of Default.
3.3 The Lender may waive compliance with all or any of requirements of this
Clause 3 and Clause 4 upon such conditions as may be stipulated.
4. AVAILABILITY
4.1 Subject to the terms and conditions of this Agreement, the Facility shall be
made available to the Borrower during the Availability Period for drawing by the
Borrower in one lump sum for application in or towards financing the Borrower's
working capital requirement.
4.2 Subject as otherwise provided under this Agreement, a drawing under the
Facility may be made by the Borrower on Business Days falling within the
Availability Period only if the Lender has received a Notice of Drawdown duly
completed and signed by a director of the Borrower specifying the proposed date
of drawdown under the Facility (which must be a Business Day falling within the
Availability Period and at least twenty four (24) hours after the service of the
Notice of Drawdown).
4.3 A Notice of Drawdown, once given, shall be irrevocable.
5. PREPAYMENT
5.1 Subject as otherwise provided in this Agreement, the Borrower may, subject
to having given to the Lender not less than three (3) Business Days' prior
notice of its intention to make prepayment specifying the amount to be prepaid
and the date of such repayment, prepay the Loan or any part thereof, subject to
a minimum amount of HK$500,000.00 or a higher integral multiple thereof (other
than the last prepayment of the final balance of the Loan where such final
balance is
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less than HK$500,000.00).
5.2 Any prepayment made under this Agreement shall be made together with accrued
interest on the amount prepaid and any other sum then due to the Lender under
the Loan Documents.
5.3 Any notice of prepayment, once given, shall be irrevocable and shall oblige
the Borrower to prepay in accordance with that notice. The Borrower may not
reborrow any amount prepaid or repaid.
6. REPAYMENT
Subject as otherwise provided in this Agreement, the Borrower shall repay
the full principal amount of the Loan, so far as not otherwise repaid or prepaid
under the provisions of this Agreement, together with any other monies then
outstanding in one lump sum on the Maturity Date.
7. INTEREST
Interest on the Loan shall accrue at the rate of two per cent. (2%) per
annum above the best lending rate for HK Dollars from time to time announced by
The Hongkong and Shanghai Banking Corporation Limited and shall be paid by the
Borrower on:
(a) the date(s) of prepayment where the Borrower makes a prepayment in
accordance with Clauses 5, 10.1 and 10.2 (ii); and
(b) the Maturity Date where the Borrower makes a repayment in accordance
with Clause 6.
8. DEFAULT INTEREST
8.1 If the Borrower defaults in payment when due of any amount, whether
principal, interest or otherwise, payable in accordance with the provisions of
this Agreement, it shall pay to the Lender interest on such overdue amount from
the due date of payment until actual payment (as well after as before judgement)
at the rate of two per cent. (2%) per annum above the rate of interest
applicable to the Loan from time to time, or which would have been applicable to
the sum in default had it constituted part of the Loan.
8.2 Interest accrued on any overdue amount shall be payable on demand by the
Lender made at any time.
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9. DEDUCTIONS / TAXES
9.1 All amounts payable by the Borrower under this Agreement shall be paid
(except to the extent required by law):
(a) free of any restriction or condition;
(b) free and clear of and without any deduction or withholding on account
of any taxes; and
(c) without deduction or withholding on account of any other amount,
whether by way of set-off, counterclaim or otherwise.
9.2 If (i) the Borrower is required by law or by any taxing authority to make
any deduction, withholding or payment on account of any present or future tax or
other amount from or in respect of, as the case may be, any sum paid or payable
by the Borrower to the Lender under this Agreement or on or with regard to any
aspect of the transactions contemplated in this Agreement or the execution and
delivery of the Loan Documents or (ii) the Lender (or any person on its behalf)
is required by law or by any taxing authority to make (01) any deduction or
withholding from, or (02) (except on account of tax on the overall net income of
the Lender) any payment on or calculated by reference to the amount of, any sum
received or receivable by the Lender under this Agreement, then:
(a) if the deduction, withholding or payment in question is required to be
made by the Borrower, the Borrower shall notify the Lender of the
requirement or any change in any such requirement as soon as the
Borrower becomes aware of it;
(b) the Borrower shall pay such tax or other amount before the date on
which penalties attach thereto, such payment to be made (if the
liability to pay is imposed on the Borrower) for its own account or
(if that liability is imposed on the Lender) on behalf of and in the
name of the Lender;
(c) save and except where the deduction, withholding or payment is in
respect or on account of tax on the Lender's overall net income, the
sum payable, in respect of which the relevant deduction, withholding
or payment is required, shall be increased to the extent necessary to
ensure that, after the making of that deduction, withholding or
payment, the Lender receives on the due date (free from any liability
in respect of any such deduction, withholding or
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payment) a net sum equal to what it would have received had no such
deduction, withholding or payment been required or made; and
(d) within thirty (30) days after payment of any legally required
deduction or withholding, and within thirty (30) days after the due
date of payment of any tax or other amount required to be paid
pursuant to Paragraph (1) above, the Borrower shall deliver to the
Lender evidence, satisfactory to the Lender, of such deduction,
withholding or payment and of the remittance thereof to the relevant
taxing or other authority.
9.3 Without prejudice to the provisions of Clause 9.2, if any sum paid or
payable by the Borrower under this Agreement is or would when paid be subject to
any deduction or withholding on account of any tax or other amounts imposed by
or within any jurisdiction in or from which the payment is or is to be made, the
Borrower will, at the request of the Lender, agree to such change as the Lender
may request and the Borrower shall approve (such approval not to be unreasonably
withheld) in the manner or place of payment by the Borrower hereunder in order
to avoid the requirement of such deduction or withholding.
10. CHANGE IN CIRCUMSTANCES
10.1 If at any time the Lender determines that it is or will become unlawful or
contrary to any law or directive of any agency or state for it to make available
all or part of the Facility, to allow to be understanding all or part of the
Loan, to carry out all or any of its other obligations under this Agreement
and/or to charge or receive interest at the rate(s) payable pursuant to this
Agreement, upon the Lender so notifying the Borrower, the Borrower shall repay
all (but not part only) of the Loan on such date as the Lender shall certify to
be necessary to comply with the relevant law or directive, without premium or
penalty (other than any amounts payable under Clause 5.2) but together with all
accrued interest thereon and any other sum then due to the Lender under this
Agreement.
10.2 If any change in applicable law or in the interpretation or application
thereof or if compliance by the Lender with any applicable direction, request or
requirement (whether or not having the force of law) of any competent
governmental or other authority introduced or imposed after the date of this
Agreement shall, in the opinion of the Lender :
(a) subject the Lender to any taxes or increase the Lender's liability to
taxes with respect to the Loan or any part thereof (other than
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tax on its overall net income);or
(b) change the basis of taxation to the Lender in respect of payments of
principal, interest or any other payment due or to become due to its
pursuant to this Agreement (other than where the tax in effect after
such change in basis is still a tax on its overall net income);or
(c) impose on the Lender any other condition affecting the Loan or any
part thereof,
and the result of any of the foregoing is either directly or indirectly (I) to
increase the cost to the Lender of maintaining or funding all or part of the
Loan, (II) to reduce the amount of any payment received or receivable by the
Lender under this Agreement, (III) to oblige he Lender to make any payment on or
calculated by reference to the amount of any sum received or receivable by it
under this Agreement, (IV) to cause the Lender to forgo any interest or other
sum received or receivable by it or (V) to render the Lender otherwise unable to
obtain the rate of return on its overall capital which it would have been able
to achieve but for its entering into and/or performing its obligations under
this Agreement, in any such case by an amount which the Lender considers to be
material, then in any such case:
(i) the Lender shall notify the Borrower of the occurrence of such event
as soon as reasonably practicable after the Lender becomes aware of
such event; and
(ii) the Borrower shall indemnify the Lender against that increased cost,
reduction, payment or forgone interest or other sum and, accordingly,
shall from time to time on demand (whenever made) pay to the Lender
such additional amounts as the Lender may certify to be necessary so
to indemnify it. Any such demand may be made at any time before or
after the end of any period to which such demand relates and at any
time before or after any prepayment, repayment or transfer of all or
part of the Loan or any part thereof. In such circumstances the
Borrower shall be at liberty at any time after a demand has been made
of it, but without prejudice to its obligation to indemnify the Lender
under this Clause, to serve notice of its intention to prepay all (but
not part only) of the Loan on any date prior to the Maturity Date.
11. PAYMENT
11.1 On the date on which a drawdown of the Facility is to be made, the Lender
shall at or before 3:00p.m. on that date make available for
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collection by the Borrower at the Lender's office (or such other place in Hong
Kong as the Lender may from time to time notify the Borrower for the purpose) a
cashier order or a HK Dollar cheque drawn on a licensed bank in Hong Kong for
the amount of the Facility or in such manner as the parties hereto may from time
to time agree.
11.2 On each date on which any sum is due from the Borrower hereunder or in
connection herewith, it shall make such sum available to the Ledner before
1:00pm on the due date by delivery to the Lender's office (or such other place
in Hong Kong as the Lender may from time to time notify the Borrower for the
purpose ) of a cashier order or a HK Dollar cheque drawn on a licensed bank in
Hong Kong acceptable to the Lender and payable to the Lender for such amount.
11.3 Any payment to be made by the Borrower on a day which is not a Business Day
and which would otherwise be due on a non-Business Day shall instead be due on
the next Business Day in the same calendar month and, if none, on the
immediately preceding Business Day.
12. WARRANTIES
12.1 The Borrower represents and warrants to and for the benefit of the Lender
that:
(a) the Borrower is a limited liability company incorporated, registered
and existing under the laws of Hong Kong and has the power, authority
and legal right to own its assets and to carry on and conduct the
business and operations which it now conducts or proposes to conduct
and has compiled with and will comply with all requirements (legal or
otherwise) relative to it or its business;
(b) each of the Covenantors has the necessary corporate power and/or full
legal capacity, to enter into, exercise its rights and perform and
comply with its obligations under the Loan Documents to which each of
them is or will be a party;
(c) the entry into by each of the Covenantors, the exercise by each of
them of its rights and/or performance of or compliance with its
obligations under the Loan Documents to which it is or will be a party
do not and will not violate (as the case may be):
(i) any law, regulation, directive, judgment or order to which it is
subject; or
(ii) where appropriate, its memorandum and articles of
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association; or
(iii) any agreement to which it is a party or which is binding on it
or its assets,
and, except for Encumbrances created pursuant to or under the Loan
Documents, do not and will not result in the existence of, or oblige it to
create, any Encumbrance over its assets and will not constitute a default
or an event that with the giving of notice or lapse of time or both would
constitute a default under any agreement to which it is a party;
(d) all corporate, shareholders and other action, conditions, approvals,
including, but without limitation, all governmental and other official
consents, licences, approvals and authorizations, and things required
under the laws of Hong Kong to be taken, fulfilled and done in order:
(i) to enable each of the Covenantors lawfully to enter into,
exercise its rights and perform and comply with its obligations
under the Loan Documents to which it is or will be a party;
(ii) to ensure that those obligations are legal, valid and
enforceable in accordance with heir terms; and
(iii) to make such Loan Documents admissible in evidence,
have been or, as the case may be, will on or before 11:00am on the date of
the drawdown of the Facility be done, fulfilled and performed properly and
truthfully in strict compliance with any applicable laws;
(e) it is not necessary in order to ensure the legality, validity,
enforceability, admissibility in evidence or priority of the Loan
Documents that any of them be filed, recorded or enrolled with any
court or authority anywhere or that any stamp duty, registration or
similar tax be paid on or in relation to any of them (if any);
(f) the Loan Documents constitute (or, as and when each of them is
executed, will constitute) legal, valid and binding obligations of
each of the Covenantors enforceable in accordance with their
respective terms and there are no approvals required in respect of any
of the Loan Documents which have not been or will not be obtained by
the date of the drawdown of the Facility and are not or, as the case
may
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be, will not as of that date be in full force and effect;
(g) except for High Court Action No 1400 of 2001 no litigation,
arbitration or administrative proceeding is current, pending or
threatened:
(i) to restrain the entry into by any Covenantor of, the exercise by
any Covenantor of its rights and/or performance or enforcement of
or compliance with its obligations under, the Loan Documents to
which it is or will be a party; or
(ii) which has or could have a material adverse effect on or on the
financial condition of any of the Covenantors or the ability of
any of the Covenantors to make any payment when due or to perform
any of its other obligations in accordance with the Loan
Documents to which it is or will be a party; or
(iii) which has or could have a material adverse effect on the
security constituted by the Loan Documents;
(h) no Encumbrance exists over all or any of the undertaking or the
present or future revenues or assets of the Borrower save as
previously disclosed in writing to the Lender by the Borrower;
(i) the obligations of each of the Covenantors under the Loan Documents to
which it is or will be a party are or will be its direct, general and
unconditional obligations and, subject to the Encumbrances created or
to be created pursuant to or under such Loan Documents, rank or will
rank at least pari passu in all respects with all its other present
and future unsecured and unsubordinated Indebtedness and obligations
(including contingent obligations), with the exception of Indebtedness
and obligations, mandatorily preferred by law and not by contract;
(j) there is no withholding, income or other tax or charge of Hong Kong or
any other jurisdiction applicable to any payment to be made by each of
the Covenantors pursuant to the terms of the Loan Documents to which
it is or will be party or to be imposed on or by virtue of the
execution and delivery, performance or enforcement of the Loan
Documents;
(k) without prejudice to Paragraph c), none of the Covenantors is in
default or breach of any of its obligations under any agreement to
which it is a party which default or breach has or could have a
material adverse effect on its ability to make any payment when due or
to perform any of its other
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obligations in accordance with the Loan Documents to which it is or
will be a party;
(l) no event or circumstance has occurred or arisen which is or may
constitute or become (with the giving of notice and/or lapse of time
and/or fulfillment of any condition) an Event of Default or will occur
or arise as a result of the entry by any of the Covenantors into the
Loan Documents to which it is or will be a party.
12.2 The Borrower further represents and warrants to and for the benefit of the
Lender that :
(a) except for liens and title retention arrangements arising in the
ordinary course of business, no Encumbrance exists over all or any of
the undertaking or the present or future revenues or assets of the
Borrower other than those as previously disclosed in writing to the
Lender; and
(b) all information, data and materials supplied to the Lender by or on
behalf of each of the Covenantors concerning itself or in connection
with the Facility are to the best of its knowledge and belief true,
complete and accurate in all materials respects and not misleading and
do not omit material facts and all reasonable enquiries have been made
to verify the facts contained therein and there are no other facts the
omission of which would make any fact or statement therein misleading
and all forecasts and projections contained therein were made after
due and careful consideration on its part, are based on the best
information available to it and on fair and reasonable assumptions and
are, in its considered opinion, fair and reasonable in the
circumstances prevailing at the time such forecasts and projections
were made and in the light of the assumptions made, and it is not
aware at the date of this Agreement of any fact which might have a
material effect on any such assumptions or which might necessitate a
material revision to any of the said forecasts or projections.
12.3 The Borrower shall be deemed to repeat each of the representations and
warranties in Clauses 12.1 and 12.2 in the Notice of Drawdown issued hereunder
and on the date of drawdown under the Facility by reference to the facts and
circumstances then existing, save that the foregoing shall not preclude the
Borrower from taking any action which would otherwise be permitted under the
Loan Documents and so
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that the warranties in Clauses 12.1 and 12.2 shall be construed so as to take
account of any such action.
13. UNDERTAKINGS
13.1 General The Borrower undertakes to and in favour of the Lender that:
(a) it will conduct its business in a proper and efficient manner and will
comply with and duly and diligently perform all its duties and
obligations under the Loan Documents to which it is or will be a
party;
(b) it will obtain or cause to be obtained and will maintain and cause to
be maintained in full force and effect and will comply with the
conditions and restrictions (if any) imposed in, or in connection with
all consents, permits and approvals (whether governmental or
otherwise) in respect of the Loan Documents and do, or cause to be
done, all other acts and things, which from time to time may be
necessary to ensure that each of the Loan Documents and its
obligations thereunder remain in full force and effect and continue to
be legal, valid, binding and enforceable in accordance with their
respective terms and admissible in evidence;
(c) it will apply the facility only for the purpose for which the same
have been made available and it will on request by the Lender provide
evidence satisfactory to the Lender of such proper application
Provided that nothing herein contained shall oblige the lender to
enquire as to the application or proper application of the Facility;
(d) it will keep and prepare its books of account and all financial
statements to be delivered to the Lender under this Agreement in
accordance with generally accepted accounting principles and practices
in Hong Kong consistently applied;
(e) it will permit the Lender and its representatives to inspect its books
of account and other relevant accounting records at all reasonable
times on reasonable notice and shall cause its employees and
accountants to give their full cooperation and assistance in
connection with any such visits of inspection or any financial
conferences called by the Lender;
(f) it will promptly advise the Lender upon becoming aware of:
(i) any Event of Default;
(ii) any litigation, arbitration or administrative proceeding
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which, if it had been current or pending or threatened as at the
date of this Agrement, would have rendered the warranty in
Clause 12.1 (g) incorrect;
(iii) any other factor which the Borrower reasonably considers may
inhibit , impair or delay any of the Covenantors in the
performance of its obligations under any of the Loan Documents
to which it is or will be a party; or
(iv) any change in the taxes applicable to any respect of the
transactions contemplated by the Loan Documents;
(g) it will pay all of its Indebtedness and shall perform all its other
contractual obligations not specifically herein referred to duly and
promptly in accordance with the particular agreements to which it is a
party or by which its property or assets are bound;
(h) it will procure that its obligations under this Agreement at all times
rank at least pari passu with all its unsecured obligations, except
for Indebtedness and obligations mandatorily preferred by law and not
by contract;
(i) it will pay and discharge all taxes for which it is liable (whether in
Hong Kong or elsewhere), including without limitation any taxes
assessed against any of its assets, prior to the date after which
penalties attach for failure to pay, except, to the extent that such
taxes are being contested in good faith, adequate reserves have been
set aside for the payments thereof and will make timely filings of all
tax returns and governmental reports required to be filed or submitted
under any applicable laws or regulations;
(j) it will provide such information and assistance as the Lender may
reasonably require to enable it to review the business activities of
the Covenantors.
13.2 Negative The Borrower further undertakes to and in favour of the Lender
that without the prior written consent of the Lender (which consent may be
subject to such conditions as the Lender sees fit to impose) it will not :
(a) take any step with a view to dissolution, liquidation or winding-up;
(b) except for Indebtedness incurred pursuant to this Agreement or
Indebtedness incurred in the ordinary course of business and
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not material in amount, incur or create any Indebtedness or give any
guarantee or indemnity or act as surety in respect of any Indebtedness
of any other person;
(c) except as permitted in the Loan Documents, create or permit to arise
or exist any Encumbrance over all or any of its present or future
undertaking or property or its present or future revenues or assets
including its uncalled capital (if any) for the time being;
(d) lend any money or extend any credit other than in the ordinary course
of business or as permitted in the Loan Documents;
(e) make any payment to its shareholders, whether by way of dividend,
interest, return of capital, loan repayment or otherwise howsoever;
(f) repay or redeem its issued share capital or reduce its share capital;
(g) alter its financial year end;
(h) change the nature and scope of its current business in any material
respect;
(i) pay any Indebtedness owed to its shareholders until such time as the
Obligations shall have been paid and discharged in full; and / or
(j) enter into any agreement or incur any obligation which may materially
or adversely affect its financial and other conditions.
14. DEFAULT
14.1 If at any time and for any reason, whether within or beyond the control of
the party or parties concerned:
(a) the Borrower fails to pay any principal, interest or other amount
payable by it hereunder on the due date or where the same is payable
on demand, on demand; or
(b) any of the Covenantors fails to pay in the manner provided in the
other Loan Documents any sum payable by it thereunder when due or
where the same is payable on demand, on demand; or
(c) any representation, warranty or statement by any of the Covenantors in
any of the Loan Documents or in any information or document delivered
thereunder or otherwise (including but not limited to the Notice of
Drawdown) is not complied with or is or proves to have been incorrect
or misleading in any respect when made or in any material respect when
repeated or deemed to be repeated pursuant to any of the Loan
Documents, by reference to
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the circumstances then existing and such breach is not capable of
remedy or, if in the opinion of the Lender, remediable, has not been
remedied within seven (7) days after notice from the Lender requiring
its remedy; or
(d) any of the Covenantors fails duly to perform any of its obligations
(other than the obligation to pay) or to observe any of the terms and
conditions (other than terms and conditions of payment) imposed on it
by any of the Loan Documents to which it is or will be a party and
such failure is not capable of remedy or, if, in the opinion of the
Lender, remediable has not been remedied within seven (7) days after
notice from the Lender requiring its remedy; or
(e) all or any material part of the assets, rights or revenues of the
Borrower or any other material company beneficially owned or
controlled, whether directly or indirectly, by the Borrower shall be
seized, expropriated, re-entered or resumed or shall be subject to
compulsory purchase or acquisition (whether subject to compensation or
not) or shall be wholly or substantially destroyed; or
(f) all or any material part of the assets, rights or revenues of any of
the Covenantors shall be seized, expropriated, re-entered or resumed
or shall be subject to compulsory purchase or acquisition (whether
subject to compensation or not) or shall be wholly or substantially
destroyed; or
(g) any consent, authorization, licence or approval (whether from the
Government of Hong Kong or any other authority or agency whether
governmental or otherwise) required for or in connection with the Loan
Documents is not given or not obtained within any applicable time
limits or is revoked, withdrawn, terminated or changed or is or
becomes subject to conditions unacceptable to the Lender or otherwise
ceases to be in full force and effect or the Government of Hong Kong
or any other such authority or agency objects to the Loan Documents;
or
(h) any government, tax, monetary or other approval required is not given
or not obtained or is revoked or is withdrawn or is changed or is or
becomes subject to conditions unacceptable to any Lender; or
(i) (without prejudice to Clauses 14.1 (a) or 14.1(j)) any Indebtedness of
any of the Covenantors, other than in respect of this Agreement and
the Loan:
(i) is not paid when due or within any applicable grace period in
any agreement relating to that Indebtedness;
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or
(ii) becomes due and payable before its normal or anticipated
maturity by reason of a default or event of default, however
described; or
(iii) which is in respect of a guarantee, becomes actual Indebtedness
and such actual Indebtedness is not paid or discharged within
seven (7) days or in accordance with the relevant guarantee if
such guarantee provides for a longer grace period; or
(j) any event occurs:
(i) which constitutes or, with the fulfillment of any condition,
would constitute an event of default under any other agreement
to which any of the Covenantors is a party; or
(ii) which has a material adverse effect on the ability of any of the
Covenantors to perform its obligations under any of the Loan
Documents to which it is or will be a party; or
(k) any of the Covenantors becomes or is declared insolvent or bankrupt,
is unable to pay its debts as they fall due, stops, suspends or
threatens to stop or suspend payment of all or a material part of its
debts or begins negotiations or takes any proceeding or other step
with a view to readjustment, rescheduling or deferral of its
Indebtedness (or of any part of its Indebtedness which it will or
might otherwise be unable to pay when due) or proposes or makes a
general assignment or any arrangement, compromise or composition with
or for the benefit of its creditors or a moratorium is agreed or
declared in respect of or affecting all or any material part of its
Indebtedness; or
(l) a distress, attachment, execution or other legal process is levied,
enforced or sued out on or against the assets of any of the
Covenantors and is not discharged within ten (10) days; or
(m) any present or future security on or over the assets of any of the
Covenantors becomes enforceable, or any step (including the taking of
possession or the appointment of a receiver, manager or similar
officer) is taken to enforce that security; or
(n) a petition is presented or a proceeding is commenced, a resolution is
passed, an order is made or any action is taken by any person for the
dissolution, liquidation, winding-up or bankruptcy (except for the
purpose of and followed by a
17
reconstruction, amalgamation or reorganization on terms previously
approved by the Lender) or for the appointment of a liquidator,
receiver, administrator, trustee or similar officer, of any of the
Covenantors or of all or a material part of its business or assets or
if any event analogous thereto occurs or any of the Covenantors
becomes or is declared insolvent, liquidated, wound-up or bankrupt
under applicable laws; or
(o) any of the Covenantors ceases to exist or ceases or threatens to
cease to carry on its business or any part thereof or changes or
threatens to change the nature or scope of its business to any extent
or in a way unacceptable to the Lender, or any of the Covenantors
Disposes of or threatens to Dispose of all or any substantial part of
its business or assets, except as contemplated under the Loan
Documents; or
(p) any action, condition or thing (including the obtaining of any
necessary consent) required at any time to be taken, fulfilled or done
in order to ensure that each of the Loan Documents is legal, valid and
enforceable in all respects is not taken, fulfilled or done or any
such consent ceases to be in full force and effect without
modification or any condition in or relating to any such consent is
not complied with; or
(q) it is or will become unlawful for any of the Covenantors to perform or
comply with any one or more of its obligations under the Loan
Documents to which it is or will be a party or any such obligation is
not or ceases to be enforceable or is claimed by any of the
Covenantors or any other person not to be enforceable; or
(r) any action or proceeding of or before any court or authority shall be
commenced (and not withdrawn or dismissed within a period of twenty
eight (28) days after its commencement) to enjoin or restrain the
performance of and compliance with any obligation expressed to be
assumed by any of the Covenantors in any of the Loan Documents or in
any manner to question the right under and perform and comply with any
obligation expressed to be assumed by it under the Loan Documents or
the legality, validity or enforceability of the Loan Documents; or
(s) there occurs, in the opinion of the Lender, a material adverse change
in the financial position of any of the Covenantors or
18
there occurs, in the opinion of the Lender, any situation which has
materially adversely affected or may materially adversely affect the
ability of any of the Covenantors to perform any or all of its
obligations under the Loan Documents to which it is or will be a
party,
then, and in any such case, the Lender may, whether or not such Event of Default
is continuing, declare:
(i) the Loan and all interest accrued thereon to be immediately due
and payable (whereupon the same shall be immediately due and
payable by the Borrower); and/or
(ii) all other monies payable under the Loan Documents to be
immediately due and payable (whereupon the same shall be
immediately due and payable by the Borrower),
and at the same time as or at any time after the Lender makes any such
declaration it may declare the security constituted by the Loan Documents to be
and to have become immediately enforceable and duly enforce such security.
14.2 All monies received by the Lender at any time after the Loan and all other
monies payable under any of the Loan Documents have become immediately due and
payable pursuant to Clause 14.1 shall be paid into an interest bearing
recoveries account to be maintained by the Lender and shall be applied, subject
to any prior ranking claims :
Firstly: in or towards discharging all costs and expenses incurred by the
Lender in perfecting, preserving, exercising, protecting, enforcing or
attempting to so perfect, preserve, exercise, protect or enforce its rights
under the Loan documents;
Secondly: in or towards discharging all unpaid accrued interest payable
pursuant to the Loan Documents or any of them;
Thirdly: in or towards discharging the Loan and other monies payable
hereunder; and
Fourthly: subject to the rights of third parties of which the lender has
actual notice, any balance in payment to the Borrower.
19
15. INDEMNITIES
15.1 The Borrower shall on demand indemnify the Lender against any funding or
other cost (including administration costs), loss, expense or liability
sustained or incurred by it as a result of:
(a) any sum payable by the Borrower under this Agreement not being paid
when due; or
(b) delay or failure by the Borrower to pay any taxes or other monies
contemplated by Clause 9.2 and payment by the Lender of any such taxes
or monies, whether or not such taxes or monies shall be correctly or
legally asserted or otherwise contested or contestable, together with
any interest, penalties and expenses in connection therewith; or
(c) the occurrence or continuance of any other Event of Default; or
(d) the accelerated repayment of the Loan pursuant to Clause 14; or
(e) the receipt or recovery by the Lender of all or any part of an overdue
sum; or
(f) (without prejudice to any other provision hereof) any untrue or
misleading statement contained in any of the Loan Documents or in any
information or document delivered pursuant thereto.
15.2 (A) Except (i) where costs and expenses are incurred in a currency other
than HK Dollars and the Lender requires payment in that other currency and (ii)
as otherwise provided in this Agreement, HK Dollars shall be the currency of
account and payment for all sums payable by the Borrower under or in connection
with this Agreement, including damages.
(B) Any amount received or recovered in currency other than the currency of
account and payment stipulated in Sub-clause (A) ("Account Currency") (whether
as a result of, or of the enforcement of, a judgment or order of a court,
tribunal or authority of any jurisdiction, in the dissolution or bankruptcy of
the Borrower (as the case may be) or otherwise) by the Lender in respect of any
sum expressed to be due to it from the Borrower under this Agreement shall only
constitute a discharge to the Borrower to the extent of the amount in the
Account Currency which the Lender is able, in accordance with its usual
practice, to purchase with the amounts so received or recovered in that other
currency on the date of that receipt or recovery (or, if it is not practicable
to make
20
the purchase on that date, on the first date on which it is practicable to do
so).
(C) If that amount is less than the Account Currency amount expressed toi
be due to the Lender under the Loan Documents, the Borrower shall indemnify the
Lender against any loss sustained by it as a result. In any event, the Borrower
shall indemnify the Lender against the cost of making any such purchase.
(D) The indemnities in Sub-clause (C) constitute separate and independent
obligations form the other obligations of the Borrower in the Loan Documents,
shall give rise to a separate and independent cause of action, shall apply
irrespective of any indulgence granted by the Lender and shall continue in full
force and effect despite any judgement, order, claim or proof for a liquidated
amount in respect of any sum due under the Loan Documents or any judgement or
order. No proof or evidence of any actual loss may be required.
16. FEES, COSTS AND EXPENSES
16.1 The Borrower shall pay:
(a) upon the execution of this Agreement, a documentation fee of HK$30,000
incurred by the Lender in connection with the preparation of the Loan
Documents and other documents ancillary thereto;
(b) on demand by the Lender, all costs and expenses (including legal fees
on a full indemnity basis) incurred by the Lender in perfecting,
preserving or protecting any rights under the Loan Documents or in
exercising or enforcing or attempting to exercise or enforce any
rights under the Loan Documents and including, but without limitation,
all such costs and expenses incurred by the Lender in determining
whether an Event of Default has occurred; and
(c) promptly, any stamp, documentary, registration or similar tax payable
in connection with the entry into, registration, performance,
enforcement or admissibility in evidence of the Loan Documents and the
transactions contemplated thereby and/or any amendment or waiver
referred to in Paragraph (a), and the Borrower shall indemnify the
Lender against any liability with respect to or resulting from any
delay in paying or omission to pay any such tax.
21
17. CALCULATIONS AND EVIDENCE
17.1 All interest, fees and other payments of an annual nature under this
Agreement shall accrue from day to day and be calculated on the basis of actual
number of days elapsed over a year of three hundred and sixty five (365) days
and in the calculation of interest payable by the Borrower hereunder, inclusive
of the first day of the relevant period but excluding the last.
17.2 The entries made in the accounts maintained by the Lender in respect of
this Agreement in accordance with the usual practice shall, save for manifest
error, be conclusive evidence of the existence and amounts of the obligations of
the Borrower therein recorded.
17.3 A certificate issued by the Lender as to rate of interest determined to
apply, the amount of the Loan, the amount of any sum, fee or other payment
payable to it under this Agreement or any other Loan Documents and any other
certificate, determination, notification or opinion of the Lender provided for
in this Agreement or any other Loan Documents shall, in the absence of manifest
error, be conclusive evidence that such sum is so payable or as to any other
matter covered thereby.
18. ASSIGNMENT
18.1 This Agreement shall enure to the benefit of the parties hereto and their
respective permitted successors, assigns and transferees.
18.2 The Borrower shall not assign or transfer any or all of its rights or
obligations under this Agreement without prior written approval of the Lender.
18.3 (A) The Lender may at any time transfer by assignment or novation to any
one or more parties all or any part of its rights and benefits and/or of its
obligations under this Agreement and in that event the transferee shall have the
same rights and/or obligations (as the case may be) hereunder as it would have
had if it had been a party hereto.
(B) In the case of the transfer of all or part of the Lender's obligations
hereunder, the Borrower, the transferee and the Lender shall, at no cost to the
Borrower, execute a novation agreement under which the Lender is released from
its obligations or the part thereof transferred and the transferee assumes the
obligations of the Lender or the part thereof transferred.
22
18.4 The Lender may disclose to a potential transferee or any other person
proposing to enter into contractual arrangements with the Lender in relation to
any or all of the Loan Documents such information about the Covenantors and this
transaction as it may think fit.
19. REMEDIES, ETC.
19.1 Time shall be of the essence of this Agreement, but no failure or delay on
the part of the Lender to exercise or enforce any right, remedy, power or
privilege hereunder will operate as a waiver thereof, nor will any single or
partial or defective exercise of any right, remedy, power or privilege preclude
any other or further exercise or enforcement thereof or the exercise of any
other right, remedy, power or privilege. No act or conduct or negotiation on the
part or on behalf of the Lender shall in any way preclude it from exercising any
right, remedy, power or privilege hereunder or constitute a suspension or any
variation of any such right, remedy, power or privilege save the act conduct or
negotiation is directly expressly made for such purposes(s). Any consent
required to be given under any provision hereof may be given subject to such
conditions as the Lender may specify. Any waiver or consent shall be effective
only in the instance and for the purpose for which it is given. The rights,
remedies, powers and privileges herein provided are cumulative, may be exercised
as often as the Lender considers appropriate and are not exclusive of any
rights, remedies, powers or privileges provided by law.
19.2 Any provision of this Agreement may be amended only if the Borrower and the
Lender so agree in writing and any Event of Default may be waived before or
after it occurs only if the Lender so agrees in writing.
19.3 This Agreement constitutes the entire agreement between the parties in
relation to the subject matter contained herein and supersedes any other prior
commitments agreements promises or understandings written or verbal that the
parties hereto hereinbefore may have had.
20. COMMUNICATIONS
20.1 Any notice, consent, approval or other communication (collectively the
"communication") under this Agreement shall be made in writing but, unless
otherwise stated, may be made by facsimile or letter
23
but, if by facsimile form the Borrower, shall promptly be confirmed by letter.
20.2 (A) Each communication or document to be made or delivered to any party
under this Agreement shall be sent to that party at the facsimile number and/or
address from time to time designated by that party to the other party for the
purpose of this Agreement.
(B) Any communication or document form the Borrower pursuant to this
Agreement shall be irrevocable and shall not be effective until
received by the Lender. Any other communication or document shall be
deemed to have been delivered when dispatched (in the case of any
communication made by facsimile) or (in the case of any communication
made by letter) when left at that address or (as the case may be) when
deposited in the post first class postage prepaid in a duly addressed
envelope.
21. PARTIAL INVALIDITY
The illegality, invalidity or unenforceability of any provision of this
Agreement or of any other Loan Documents under the law of any jurisdiction shall
not affect its legality, validity or enforceability under the laws of any other
jurisdiction nor the legality, validity or enforceability of any other
provision.
22. COUNTERPARTS
This Agreement may be signed in any number of counterparts, all of which
taken together and when delivered to the Lender each of which shall constitute
one and the same respective instrument.
23. GOVERNING LAW
23.1 This Agreement shall be governed by and construed in accordance with the
laws of Hong Kong. The parties hereto hereby submit to the non-exclusive
jurisdiction of the Hong Kong Courts.
24
23.2 The submission of the parties hereto to the jurisdiction of the Hong Kong
courts shall not restrict the right of the Lender to take proceedings in
connection with this Agreement in any other courts having, claiming or accepting
jurisdiction in respect of matters pertaining to this Agreement, nor shall the
taking of proceedings in any one or more jurisdictions preclude the taking of
proceedings in any other jurisdiction whether concurrently or not.
23.3 To the extent that the Borrower may in any jurisdiction claim for itself or
its present or future assets any immunity (including immunity from suit or other
legal process), and to the extent that in any jurisdiction there may be
attributed such immunity (whether or not claimed), the Borrower hereby
irrevocably undertakes not to claim and hereby irrevocably waives all such
immunity.
23.4 The Borrower hereby irrevocably consents to the granting of any relief
and/or the issue of any process in connection with any legal action or
proceedings in connection with the Loan Documents, including the making,
enforcement or execution of any judgment or order against any of the property,
assets or revenues of the Borrower whatsoever.
IN WITNESS WHEREOF this Agreement has been duly executed on the date first
above written.
25
SCHEDULE 1
Interpretation (Clause 1)
Section (1)
In this Agreement, unless the context otherwise requires:
"AGREEMENT" means this Agreement together with the Schedules hereto as
the same may from time to time be amended, modified, supplemented or
varied in accordance with Clause 19.2;
"AVAILABILITY PERIOD" means the period commencing on the date of this
Agreement and ending on the date falling seven (7) days after the date
of this Agreement;
"BUSINESS DAY" means a day (other than a Saturday) on which banks are
open for business in Hong Kong;
"COVENANTORS" means the parties to the Loan Documents other than the
Lender and "Covenantor" means any or a specific one of the
Covenantors;
"DISPOSE" means to make or to agree to make, and
"DISPOSAL" means any sale, assignment, exchange, transfer, concession,
loan, lease, surrender of lease, direct or indirect reservation,
waiver, compromise, release, dealing with or in or granting of any
option, right of first refusal or other right or interest whatsoever
or any agreement for any of the same and "DISPONEE" shall be construed
accordingly;
"ENCUMBRANCE(s)" means any mortgage, charge, pledge, lien (other than
a lien arising by statute or operation of law) or other encumbrance,
priority or security interest, deferred purchase, title retention,
leasing, sale-and-repurchase or sale-and -leaseback arrangement
whatsoever over or in any property, assets or rights or interest of
whatsoever nature and includes any agreement for any of the same;
26
"EVENT OF DEFAULT" means any one of the events or circumstances
specified in Clause 14.1;
"FACILITY" means the loan facility to be made available under this
Agreement and described in Clause 2.1;
"GUARANTEE" means the guarantee in the form attached hereto as Exhibit
"A" (or such other form and substance as the Lender may require) to be
executed by the Guarantor in favour of the Lender as the same may from
time to time be amended, modified, supplemented or varied;
"GUARANTOR" means ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, holder of Hong Kong
Identity Card No. ▇▇▇▇▇▇▇(▇);
"HONG KONG" means the Hong Kong Special Administrative Region of the
People's Republic of China;
"HK DOLLARS" or "HK$" means the lawful currency for the time being of
Hong Kong;
"INDEBTEDNESS" means:
(a) any indebtedness or other obligation (actual or contingent,
present or future, secured or unsecured, as principal ,
surety or otherwise) for or in respect of the payment or
repayment of money borrowed, or raised by whatever mean;
(b) the deferred purchase price of property or assets;
(c) any guarantee or indemnity in respect of Indebtedness
described in sub-paragraphs (a), (b), (d), (e), (f) and (g)
of this definition;
(d) all amounts for the time being outstanding under any
acceptance credit or other ▇▇▇▇ of exchange or
27
promissory note;
(e) any rental or hire payable in respect of any asset or
property, whether accrued or contingent;
(f) any actual liability incurred in respect of interest and/or
foreign exchange hedging arrangements; and
(g) any indebtedness incurred under any other commercial
transaction,
and in relation to any person includes any indebtedness in
respect of which it has created an Encumbrance or given a
guarantee or indemnity;
"LOAN" means the amount outstanding and owing to the Lender from time
to time under the Facility;
"LOAN DOCUMENT(S)" means this Agreement, the Guarantee and any further
securities, charges, instruments or documents as any of the same may
from time to time be amended, modified, supplemented or varied which
are given or taken as security for or with respect to the Obligations;
"MATURITY DATE" means 15th October, 2001;
"NOTICE OF DRAWDOWN" means a notice in the form set out in Schedule 3
to be given by the Borrower to the Lender whenever it wishes to make a
drawdown under the Facility;
"OBLIGATIONS" means the Loan and interest thereon and all other monies
due or to become due from, or for the time being owing by, the
Borrower to the Lender under the Loan Documents (or any part thereof)
and all costs, charges and expenses incurred in connection with the
preservation, enforcement or exercise or intended or attempted
exercise of any right, power or remedy under the Loan Documents or any
part thereof.
28
Section (2)
Unless the context requires otherwise, any reference in this Agreement to:
An "AGREEMENT" also includes a concession, contract, deed, franchise,
licence, treaty or undertaking and any waiver or release (in each
case, whether oral, written, implied or by operation of law) and
includes the same as from time to time amended, modified, supplemented
or varied;
"ANY COLLECTIVE DEFINITION" shall be to the persons or things
comprising it as a whole or to any one or more of them or to any part
of the relevant thing or matter;
"ANY PARTY" to the Loan Documents or any other agreement shall be to
it and its permitted successors, assigns, and personal
representatives;
the "ASSETS" of any person shall be construed as reference to the
whole or any part of its business, undertaking, property, assets,
rights and revenues (including any right to receive revenues);
a "CONSENT" also includes an approval, authorization, exemption,
filing, licence, order, permission, recording or registration (and
references to "OBTAINING CONSENT" shall be construed accordingly);
one person being "CONTROLLED" by another means that (i) that other
(whether directly or indirectly and whether by the ownership of share
capital, the possession of voting power, contract or otherwise) has
the power to appoint and/or remove the majority of the members of the
governing body of that person, (ii) the person being controlled acts
or is accustomed to act in accordance with the instructions of that
other or (iii) that other otherwise controls or has the power to
control the affairs and policies of that person;
29
a "DIRECTIVE" includes any present or future directive, policy,
regulation, request, requirement, or credit restraint programme (in
each case, whether or not having the force of law but, it not having
force of law, compliance with which is in accordance with the general
practice of the person to whom the directive is addressed);
a "GUARANTEE" also includes any other obligation (whatever called) of
any person to pay, purchase, provide funds (whether by the advance of
money, the purchase of or subscription for shares or other securities,
the purchase of assets or services, or otherwise) for the payment of,
indemnify against the consequences of default in the payment of, or
otherwise be responsible for, any indebtedness of any other person;
a "LAW" includes common or customary law and any constitution, decree,
judgment, legislation, order, ordinance, regulation, statute, treaty
or other legislative measure, in each case of any jurisdiction
whatever (and "LAWFUL" and "UNLAWFUL" shall be construed accordingly);
something having a "MATERIAL ADVERSE EFFECT" on a person is a
reference to it having a material adverse effect (a) on that person's
financial condition or business or operations or (b) on its ability to
perform and comply with its obligations under the Loan Documents;
"MATERIALITY" in respect of any matter, thing or circumstance or to
any matter, thing or circumstance being "MATERIAL" is, subject as
otherwise provided in this schedule, to that matter, thing or
circumstance being considered by the lender of significance or having
or being likely to have in the reasonable opinion of the Lender a
consequence or effect in the context of the relevant situation;
any matter, warranty or obligation being correct, performed
30
or satisfied in "ANY MATERIAL RESPECT" or "IN ALL MATERIAL RESPECTS"
is to that matter, warranty or obligation being substantially correct,
performed or satisfied to the extent that in the reasonable opinion of
the Lender there has been no inaccuracy or omission which, in the
relevant circumstances, is of significance or has or may have any
effect or consequence;
a "MONTH" means a period commencing on a day in a calendar month and
ending on the corresponding day in the next calendar month or, if
there is none, ending on the last day of the next calendar month;
any "OBLIGATION" of any party under the Loan Documents shall be
construed as a reference to any obligation expressed to be assumed by
or imposed on it under the Loan Documents (and "DUE", "OWING",
"PAYABLE" and "RECEIVABLE" shall be similarly construed);
a "PERSON" includes any individual, company, corporation, firm,
partnership, joint venture, association, organization, trust, state or
agency of a state (in each case, whether or not having a separate
legal personality) and reference to any of the same shall include a
reference to the others;
"SUBSIDIARY", "HOLDING COMPANY" and "GROUP OF COMPANIES" shall bear
the meanings given by the Companies Ordinance (chapter 32 of the Laws
of Hong Kong) and "associated company" shall mean any company (not
being a subsidiary) of which a person shall, whether directly or
indirectly, beneficially own twenty per cent. (20%) or more of its
issued share capital;
"TAX(ES)" includes any present or future tax, levy, impost, stamp and
other duty, governmental and other charge or filing and other fee, (or
any deduction or withholding on account of any of the foregoing) of
any nature and whatever called, by whomsoever, on whomsoever and
wherever
31
imposed, levied, collected, withheld, deducted or assessed;
"TAX ON THE OVERALL NET INCOME" of a person shall be construed as a
reference to tax imposed by the jurisdiction in which its principal
office is located on all or part of the net income, profits or gains
of that person (whether worldwide, or only insofar as such income,
profits or gains are considered to arise in or to relate to a
particular jurisdiction, or otherwise);
"TIME" is to Hong Kong time unless otherwise stated; and
"WORDS" denoting the singular shall include the plural (and vice
versa) and any reference to the neuter gender shall include a
reference to the masculine and the feminine genders (and vice versa).
Section (3)
In this Agreement clause headings and the index have been inserted for
reference only and shall not affect construction or interpretation.
Section (4)
In this Agreement,
(a) references to Recitals, Clauses and Schedules and Exhibits are
references to recitals to, clauses of, schedules and exhibits to,
this Agreement;
(b) references to Sub-clauses and Paragraphs are, unless otherwise
stated, references to sub-clauses and paragraphs of the Clause or
sub-clause in which the reference appears;
(c) references to Sub-paragraphs are, unless otherwise stated,
references to sub-paragraphs of the Paragraph
32
in which the reference appears;
(d) the words "herein", "hereof", "hereunder" and words of similar
import shall be construed as references to this Agreement as a
whole and not to the particular provision in which the relevant
reference appears;
(e) references to (or to any specific provision of) this Agreement or
any other document (including, but not limited to, any Loan
Document) shall be construed as references to this Agreement,
that provision or that document as amended, modified,
supplemented or varied from time to time with the agreement of
the relevant parties and the prior written consent of the Lender
and in force at any relevant time.
Section (5)
References in this Agreement to any ordinance, enactment, rule, law,
directive or regulation include such ordinance, enactment, rule, law,
directive or regulation as modified, consolidated, extended or
re-enacted and include subsidiary legislation made thereunder.
33
SCHEDULE 2
CONDITIONS PRECEDENT
1. A certificate issued by a director of the Borrower incorporating:
(a) a certified true copy of its Certificate of Incorporation on Change of
Name, Memorandum and articles of Association and current Business
Registration Certificate;
(b) resolution of its board of directors authorizing execution and
performance of the Loan Documents to which it is or will be a party;
(c) a statement as to its incumbent directors; and
(d) specimen signatures of the persons authorized on its behalf to execute
the Loan Documents to which it is or will be a party and any documents
and communications ancillary thereto, including where applicable the
Notice of Drawdown;
2. The Guarantee duly executed by the Guarantor; and
3. Such other documents as the Lender's legal advisers shall stipulate should
properly be provided prior to the drawdown of the Facility or which the
Lender may reasonably require.
34
SCHEDULE 3
NOTICE OF DRAWDOWN
From : Supply Chain Services Limited
as Borrower
To : Digital World Finance Limited
as Lender
Dear Sirs, ,2001
35
HK$2,000,000.00 Facility
LOAN AGREEMENT DATED , 2001
We refer to the above Loan Agreement (the "Agreement").
Terms and expressions defined in the Agreement shall have the same meanings
when used in this notice, save where the context otherwise requires.
We hereby give you irrevocable notice that we wish to drawdown
HK$2,000,000.00 under the Facility on [Note#] or, if that is not a Business Day,
on the next succeeding Business Day.
We confirm that as at the date hereof and on the proposed date of drawdown
the representations and warranties in the Agreement are and, as the case may be,
will be true and accurate and no event or circumstance which is or may
constitute or become (with the giving of notice and/or lapse of time and/or
fulfillment of any condition) and Event of Default has occurred or will occur as
a result of the drawdown under the Facility hereby requested.
For and on behalf of
------------------------------------
Authorised signatory -- Director
Note:
(#) Insert date of proposed drawdown
36
SIGNED by ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ) /s/ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
For and on behalf of )
SUPPLY CHAIN SERVICES LIMITED )
in the presence of: / whose signature is
verified by: /s/ ▇▇▇▇▇ ▇.▇. ▇▇▇
Witness: ▇▇▇▇▇ ▇.▇. ▇▇▇
Address: 31 New ▇▇▇▇▇ House, ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Occupation: solicitor, Hong Kong SAR
SIGNED by ▇▇▇▇ ▇▇▇ Hung ) /s/ ▇▇▇▇ ▇▇▇ Hung
For and on behalf of )
DIGITAL WORLD FINANCE LIMITED )
in the presence of: /s/ ▇▇▇▇▇ ▇.▇. ▇▇▇
Witness: ▇▇▇▇▇ ▇.▇. ▇▇▇
Address: 31 New ▇▇▇▇▇ House, ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Occupation: Solicitor, Hong Kong SAR
