ABN AMRO BANK N.V. 38/F, Cheung Kong Centre Hong Kong
Exhibit
10.3
ABN
AMRO BANK N.V.
38/F,
Xxxxxx Kong Centre
2
Queen’s Road Central
Hong
Kong
October
11, 2007
0000
Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx,
Xxxxxxxx 00000
Xxxxxx
Xxxxxx
Re:
US
DOLLAR FACILITY FEE
LETTER
AGREEMENT
Ladies
and Gentlemen:
This
US
Dollar Facility Fee Letter Agreement (this “Agreement”)
is
delivered to you in connection with the Loan Agreement to be entered into on
the
date hereof (the “Loan
Agreement”)
among
Synutra International, Inc., as the Borrower (the “Borrower”),
ABN
AMRO Bank N.V., as the Arranger (the “Arranger”),
ABN
AMRO Bank N.V., as the Collateral Agent and the Administrative Agent (the
“Administrative
Agent”),
and
the Lenders party thereto (the “Lenders”).
WHEREAS,
in
order to induce the Arranger, the Administrative Agent and the Lenders to enter
into the Loan Agreement, the Borrower has agreed to enter into this Agreement
with the Arranger and the Administrative Agent.
NOW,
THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
*
* *
Terms
defined in the Loan Agreement and not otherwise defined herein have, as used
herein, the respective meanings provided for therein.
1. FEES.
In
connection with the Loan Agreement, the Borrower agrees with the Arranger and
the Administrative Agent as follows:
(a) The
Borrower will pay to the Arranger for its own account, as contemplated by the
Letter Agreement entered into between ABN AMRO Bank N.V., Hong Kong Branch
and
the Borrower dated March 29, 2007 (the “Commitment
Letter”),
a fee
(the “Arrangement
Fee”)
of
2.00% of the aggregate amount of the Commitment, as in effect on the Closing
Date. The Arrangement Fee shall be for arranging the transactions contemplated
in the Loan Agreement. The Arrangement Fee shall be earned upon the execution
of
the Loan Agreement. The Arrangement Fee shall be payable on the earlier of
(x)
the date of the first Credit Extension under the Loan Agreement and (y) the
fifth Business Day after the Closing Date.
(b) The
Borrower will pay to the Administrative Agent on behalf of the Lenders, as
contemplated by the Commitment Letter, a fee (the “Participation
Fee”)
of
0.75% of the aggregate amount of the Commitment, as in effect upon the Closing
Date. The Participation Fee shall be for facilitating the participation of
the
Lenders in the transactions contemplated in the Loan Agreement. The
Participation Fee shall be earned upon the execution of the Loan Agreement.
The
Participation Fee shall be payable on the earlier of (x) the date of the first
Credit Extension under the Loan Agreement and (y) the fifth Business Day after
the Closing Date. The Administrative Agent shall distribute the Participation
Fee in accordance with its agreement with the Lenders at its sole discretion
2. TAX
GROSS UP. For
the
avoidance of doubt, Section 3.01 of the Loan Agreement shall apply to any amount
due under this Agreement.
3. GOVERNING
LAW.
(a)
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY
WITHIN SUCH STATE; PROVIDED
THAT THE
ARRANGER AND THE ADMINISTRATIVE AGENT SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
(b) ANY
LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN XXX XXXXXX
XX XXX XXXXX XX XXX XXXX SITTING IN THE BOROUGH OF MANHATTAN, NEW YORK CITY
OR
OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWER, THE ARRANGER AND THE
ADMINISTRATIVE AGENT CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE BORROWER, THE ARRANGER
AND THE ADMINISTRATIVE AGENT IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF
VENUE
OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS,
WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN
SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR OTHER DOCUMENT RELATED THERETO.
EACH OF THE BORROWER, THE ARRANGER AND THE ADMINISTRATIVE AGENT WAIVES PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY
OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE. THE BORROWER AGREES THAT A
FINAL
JUDGMENT IN ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT SHALL
BE
CONCLUSIVE AND BINDING UPON IT AND WILL BE GIVEN EFFECT IN ANY OTHER
JURISDICTION TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND MAY BE
ENFORCED IN ANY COURT TO THE JURISDICTION OF WHICH THE BORROWER IS OR MAY BE
SUBJECT BY A SUIT UPON SUCH JUDGMENT; PROVIDED
THAT
SERVICE OF PROCESS IS EFFECTED UPON IT IN ONE OF THE MANNERS SPECIFIED HEREIN
OR
AS OTHERWISE PERMITTED BY LAW.
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4. WAIVER
OF RIGHT TO TRIAL BY JURY.
EACH
PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR
CAUSE OF ACTION ARISING UNDER THIS AGREEMENT OR IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH
RESPECT TO THIS AGREEMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT
OR
TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART
OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF
THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
5. PROCESS
AGENT.
Without
prejudice to any other mode of service allowed under any relevant Law, the
Borrower:
(a) irrevocably
shall have appointed, on or prior to the first Credit Extension, CT Corporation
System, located at 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, as its agent for
service of process in relation to any proceedings before the courts of the
State
of New York sitting in the Borough of Manhattan, New York City or of the United
States for the Southern District of New York in connection with this Agreement;
and
(b) agrees
that failure by its agent for service to notify the Borrower of the process
will
not invalidate the proceedings concerned.
6. MISCELLANEOUS.
(a)
The
fees, costs and expenses described in this Agreement shall be fully earned
upon
becoming due and payable in accordance with the terms hereof, shall be
nonrefundable for any reason whatsoever and shall be in addition to any other
fees, costs and expenses payable pursuant to the Commitment Letter, the Loan
Documents or any other definitive documentation existing or to be entered into
among the Borrower and its Subsidiaries and Affiliates, the Arranger and its
Affiliates and the Administrative Agent and its Affiliates.
(b) The
Borrower’s obligation to pay the fees or expense reimbursements described or
referred to herein will not be subject to counterclaim or setoff for, or be
otherwise affected by, any claim or dispute the Borrower or its Affiliates
may
have.
(c) The
provisions of Section 10.18 of the Loan Agreement relating to obligations to
make payments in US Dollars thereunder is hereby incorporated by reference
herein.
(d) Nothing
in this Agreement shall be construed to limit any of the rights of the Arranger
or its Affiliates or of the Administrative Agent or its Affiliates under (x)
the
Commitment Letter dated March 29, 2007 between Synutra International, Inc.
and
ABN AMRO Bank N.V., Hong Kong Branch, (y) the Warrant Agreement dated April
19,
2007 among Synutra International, Inc., The Bank of New York, as Warrant Agent
and ABN AMRO Bank N.V., Hong Kong Branch, as Initial Holder or (z) the US Dollar
Facility Side Letter Agreement dated April 19, 2007 between Synutra
International, Inc. and ABN AMRO Bank N.V., Hong Kong Branch.
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If
the
foregoing is in accordance with your understanding, please sign and return
a
counterpart of this Agreement whereupon it will become an enforceable agreement
among us.
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Very
truly yours,
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ABN
AMRO BANK N.V., as Arranger
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| |
|
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| By: |
/s/Xxxxxxx
Xxxx
|
|
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Name: Xxxxxxx Xxxx |
||
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Title: Executive
Directo
|
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By:
|
/s/Xxxx
Xxxxxxxxx
|
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Name: Xxxx
Xxxxxxxxx
|
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Title: Executive
Director
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ABN
AMRO BANK N.V., as
Administrative
Agent
|
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| |
|
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| By: |
/s/Xxxx
Xxxx Xxxx
|
|
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Name: Xxxx
Xxxx Xxxx
|
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Title: Senior
Vice President
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By:
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/s/Xxxxx
Xx
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Name: Xxxxx
Xx
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Title: Assistant
Manager
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THE
PROVISIONS OF THIS AGREEMENT ARE ACCEPTED AND
AGREED
TO
AS OF THE DATE FIRST ABOVE WRITTEN:
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SYNUTRA
INTERNATIONAL, INC. as Borrower
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| By: |
/s/
Xxxxx Xxxxx
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|||
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Name: Xxxxx
Xxxxx
Title: Chief
Executive Officer
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