EXHIBIT 4(ii)
CONFORMED COPY
DATED: 12 December 2003
Facility Agreement
between
PCCW-HKT Telephone Limited
as Borrower
The Financial Institutions listed herein
as Co-ordinating Arrangers
The Financial Institutions listed herein
as Lenders
and
Bayerische Landesbank, Hong Kong Branch
as Agent
relating to
HK$6,000,000,000 REVOLVING LOAN FACILITY
Xxxxxxx & Xxxxxxx
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........................................................14
3. PURPOSE.............................................................14
4. CONDITIONS OF ADVANCE...............................................14
5. REPAYMENT...........................................................16
6. CANCELLATION AND PREPAYMENT.........................................16
7. INTEREST............................................................18
8. INTEREST PERIODS....................................................18
9. CHANGES TO THE CALCULATION OF INTEREST AND BREAK COSTS..............19
10. FEES................................................................21
11. TAX GROSS UP AND CREDIT.............................................21
12. INCREASED COSTS.....................................................23
13. INDEMNITIES.........................................................24
14. ILLEGALITY AND MITIGATION...........................................25
15. COSTS AND EXPENSES..................................................27
16. REPRESENTATIONS AND WARRANTIES......................................27
17. INFORMATION UNDERTAKINGS............................................30
18. FINANCIAL COVENANTS.................................................32
19. GENERAL UNDERTAKINGS................................................34
20. EVENTS OF DEFAULT...................................................37
21. CHANGES TO THE LENDERS..............................................40
22. CHANGES TO THE BORROWER.............................................45
23. AGENT...............................................................45
24. AMENDMENTS AND DECISIONS............................................51
25. RETIREMENT OF AGENT.................................................53
26. SHARING AMONG LENDERS...............................................54
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27. PAYMENT MECHANICS...................................................55
28. PAYMENT OF TAXES AND RECOVERIES.....................................57
29. SET-OFF.............................................................57
30. CONDUCT OF BUSINESS BY THE FINANCE PARTIES..........................57
31. NOTICES.............................................................58
32. CALCULATIONS AND CERTIFICATES.......................................59
33. PARTIAL INVALIDITY..................................................59
34. REMEDIES AND WAIVERS................................................59
35. COUNTERPARTS........................................................59
36. GOVERNING LAW.......................................................59
37. ENFORCEMENT.........................................................60
SCHEDULE 1: THE LENDERS......................................................61
SCHEDULE 2: CONDITIONS PRECEDENT ............................................62
SCHEDULE 3: DRAWDOWN NOTICE..................................................64
SCHEDULE 4: FORM OF TRANSFER CERTIFICATE ....................................65
SCHEDULE 5: FORM OF ASSIGNEE'S UNDERTAKING ..................................67
SCHEDULE 6: FORM OF CONFIDENTIALITY UNDERTAKING .............................70
SCHEDULE 7: FORM OF COMPLIANCE CERTIFICATE ..................................72
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THIS AGREEMENT is made on the 12th day of December 2003
BETWEEN:
(1) PCCW-HKT TELEPHONE LIMITED, a company incorporated in Hong Kong with
company number 676 (the "Borrower");
(2) The financial institutions listed in Schedule 1 (together, the
"Co-ordinating Arrangers" and each, a "Co-ordinating Arranger");
(3) The financial institutions listed in Schedule 1 as lenders (together,
the "Lenders" and each, a "Lender"); and
(4) BAYERISCHE LANDESBANK, HONG KONG BRANCH 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 Arrangers
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.
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"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 Lenders) 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
Lenders)) 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 all or any of the following (as the context may
require):
(A) the letter between the Agent, the Co-ordinating Arrangers and
the Borrower dated on or about the date of this Agreement; and
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(B) the letter between the Agent and the Borrower dated on or about
the date of this Agreement,
each setting out the relevant fees referred to in clause 10 (Fees).
"Final Repayment Date" means the date falling 60 Months after the
date of this Agreement.
"Finance Documents" means this Agreement, each 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 Arrangers 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.
"Fitch" means Fitch Ratings.
"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
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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.
"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 Lenders); 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:
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(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.
"Margin" means in respect of an Interest Period the percentage rate
per annum specified in the table below opposite the highest senior
unsecured debt rating which has been given to the Borrower as at the
first day of such Interest Period by either Moody's or S&P or Fitch,
(provided (1) that the Margin shall be determined with reference to
the lower of such ratings given to the Borrower by Xxxxx'x, S&P and
Fitch, respectively and (2) that any changes in the Borrower's rating
during an Interest Period shall not affect the Margin payable in
respect of that Interest Period but only in respect of subsequent
Interest Periods):
Applicable Margin
Xxxxx'x S&P / Fitch (% per annum)
------- ----------- -------------
Rated lower than Baa3 Rated lower than BBB- 0.395
Baa3 BBB- 0.325
Baa2 BBB 0.275
Baa1 or higher BBB+ or higher 0.225
"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.
"Moody's" means Xxxxx'x Investors Service, Inc.
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"Original Financial Statements" means the audited consolidated
financial statements of the Borrower Group for the Financial Year
ended 31 March 2003.
"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, 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;
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(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;
(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
9
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;
(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 each of Bayerische Landesbank,
Bank of China (Hong Kong) Limited and
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Hang Seng Bank Limited or 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:
(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.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"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.
11
"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 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$6,000,000,000.
"Transfer Certificate" means a certificate substantially in the form
set out in Schedule 4 (Form of Transfer Certificate).
"Transfer Date" means, in relation to a transfer, the later of:
(A) the proposed Transfer Date specified in the Transfer
Certificate; and
(B) the date on which the Agent executes the Transfer Certificate.
"Unpaid Sum" means any sum due and payable but unpaid by the Borrower
under the Finance Documents.
"US$" 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
12
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 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.
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(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 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
14
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$500,000,000 and a multiple of HK$100,000,000;
(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;
(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
15
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.
(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$200,000,000 and
thereafter in integral multiples of HK$40,000,000.
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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 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.
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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.
(C) The Borrower shall notify the Agent of any change in the
Borrower's senior unsecured debt rating by Xxxxx'x or S&P or
Fitch that would result in a change in the Margin promptly after
it becomes aware of any public notification thereof.
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 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.
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(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 all 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.
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;
19
(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
(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.
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(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 0.225 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 Agent for the account of the
Co-ordinating Arrangers a front-end fee in the amount and at the time
agreed in the Fee Letter.
10.3 Agency fee
The Borrower shall pay to the Agent (for its own account) an agency
fee in the amount and at the times 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.
"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).
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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:
(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
22
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 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,
23
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).
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,
24
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 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,
25
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
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).
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15. COSTS AND EXPENSES
15.1 Transaction expenses
The Borrower shall, within five Business Days of demand, pay the
Agent and the Co-ordinating Arrangers 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.
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.
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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.
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.
28
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.
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.
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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 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:
30
(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
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)
31
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
(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:
32
"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 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.
33
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.
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
34
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.
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.
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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.
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
36
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 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.
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(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
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
38
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.
(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:
39
(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.
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,
40
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).
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
41
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 Letters referred
to in clauses 10.2 (Front-end fee) and 10.3 (Agency 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
(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 a Lender (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
42
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.
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.
43
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
(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.
44
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.
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
45
(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) 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
46
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;
(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
47
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 Arrangers 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;
(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
48
(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 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 Arrangers 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 Arrangers and the Lenders shall be under no liability
to any other Finance Party as a result of taking
49
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 Arrangers 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 be
given for the benefit of the Co-ordinating Arrangers 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 Arrangers, 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.
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23.10 No duties
Except as specifically provided in this Agreement, the Co-ordinating
Arrangers 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
(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
51
(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 Arrangers 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
Arrangers 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 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
52
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.
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
53
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
(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).
54
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.
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
55
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:
(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
56
(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).
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:
57
(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 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 was 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.
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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.
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.
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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.
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SCHEDULE 1: THE LENDERS
Name of Lenders Commitment (HK$)
--------------- ----------------
ABN AMRO Bank N.V. 400,000,000
ANZ Asia Limited 400,000,000
Bank of China (Hong Kong) Limited 400,000,000
Bayerische Landesbank, Hong Kong Branch 400,000,000
BNP Paribas Hong Kong Branch 400,000,000
Bank of Communications, Hong Kong Branch 400,000,000
The Bank of East Asia, Limited 400,000,000
Commerz (East Asia) Limited 400,000,000
Credit Agricole Indosuez, Hong Kong Branch 400,000,000
DBS Bank Ltd, Hong Kong Branch 400,000,000
Hang Seng Bank, Limited 400,000,000
X.X. Xxxxxx (S.E.A.) Limited 400,000,000
Mizuho Corporate Bank, Ltd., Hong Kong Branch 400,000,000
Scotiabank (Hong Kong) Limited 400,000,000
UFJ Bank Limited, Hong Kong Branch 400,000,000
-------------
TOTAL: 6,000,000,000
=============
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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 opinions
(F) 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.
(G) A legal opinion of Xxxxxxx & Xxxxxxx, legal advisers to the
Borrower, addressed to the Agent (for and on behalf of itself
and the Lenders) substantially in the form distributed to such
parties prior to signing this Agreement which will include
customary assumptions and reservations.
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3. Other documents and evidence
(A) All Fee Letters 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.
63
SCHEDULE 3: DRAWDOWN NOTICE (clause 4.2(A))
From: PCCW-HKT Telephone Limited
To: Bayerische Landesbank, Hong Kong Branch (as Agent)
Date: [o]
Dear Sirs
HK$6,000,000,000 Revolving Loan Facility Agreement dated 12 December 2003 with
PCCW-HKT Telephone Limited as borrower (the "Facility Agreement")
We refer to the Facility Agreement (as the same may from time to time be
amended, varied, supplemented, restated or novated). Terms defined in the
Facility Agreement shall have the same meanings when used in this notice.
We:
(a) give you notice that we request for an advance under the Facility in an
amount of HK$[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
64
SCHEDULE 4: FORM OF TRANSFER CERTIFICATE (clause 21.5)
To: Bayerische Landesbank, Hong Kong Branch (as Agent)
From: [The Existing Lender] (the "Existing Lender") and [The New Lender]
(the "New Lender")
Date: [o]
Dear Sirs
HK$6,000,000,000 Revolving Loan Facility Agreement dated 12 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.
65
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
66
SCHEDULE 5: FORM OF ASSIGNEE'S UNDERTAKING (clause 21.2(A))
To: (1) Bayerische Landesbank, Hong Kong Branch (as Agent)
19/F., Standard Chartered Bank Xxxxxxxx
0X Xxx Xxxxx Xxxx
Xxxxxxx
Xxxx Xxxx
Attention: Agency / Xx Xxxxx Xxxx / Ms Xxxxx Xxxx
(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 12 December 2003 between PCCW-HKT Telephone Limited as Borrower, the
financial institutions listed therein as Co-ordinating Arrangers, the financial
institutions listed in Schedule 1 of the Agreement as Lenders and Bayerische
Landesbank, Hong Kong Branch as Agent. 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.
67
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:
(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.
68
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*]
69
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$6,000,000,000 Revolving Loan Facility Agreement dated 12 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.
70
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]
71
SCHEDULE 7: FORM OF COMPLIANCE CERTIFICATE (clause 17.2(D))
To: Bayerische Landesbank, Hong Kong Branch (as Agent)
19/F., Standard Chartered Bank Xxxxxxxx
0X Xxx Xxxxx Xxxx
Xxxxxxx
Xxxx Xxxx
Attention: Agency / Xx Xxxxx Xxxx / Ms Xxxxx Xxxx
Date: [o]
HK$6,000,000,000 Revolving Loan Facility Agreement dated 12 December 2003 with
PCCW-HKT Telephone Limited as borrower (the "Facility Agreement")
We refer to the Facility Agreement (as the same may from time to time be
amended, varied, supplemented, restated or novated). Terms defined in the
Facility Agreement shall have the same meanings when used in this certificate.
Terms and expression defined in the Facility Agreement shall bear the same
meaning herein.
Financial Covenants
We confirm that, in respect of the Relevant Period [o] to [o]:
(A) EBITDA was HK$[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
72
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
THE CO-ORDINATING ARRANGERS AND THE LENDERS
-------------------------------------------
ABN AMRO BANK N.V.
38/F, Xxxxxx Kong Center
0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Xxxxxx Xxxxx
By: (Sd) Xxxxx Xxxxx
(Sd) Xxxxx Xxxxx
73
ANZ ASIA LIMITED
31/F, Xxx Xxxxxxxx Xxxxxx
0 Xxxxxxxxx Xxxxx
Xxxxxxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Xx Xxxxxx Xxx / Xx Xxxxxxx Xxxxx
By: (Sd) Xxxxxxx Xxxxx
(Sd) Xxxxx Xxxx
BANK OF CHINA (HONG KONG) LIMITED
Bank of Xxxxx Xxxxx
0 Xxxxxx Xxxx
Xxxxxxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000 (copy (000) 0000 0000)
Attention: Mr Xxxxxxx Man / Xx Xxxxx Xxxx / Xx Xxxxx Fai
By: (Sd) Xxxx Xxx Po
BAYERISCHE LANDESBANK, HONG KONG BRANCH
19/F., Standard Chartered Bank Xxxxxxxx
0X Xxx Xxxxx Xxxx
Xxxxxxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Xx Xxxxxxx Xxxxxxxxxxx / Xx Xxxxx Xxxx
By: (Sd) Paul C M Au
(Sd) Xxxxxxx Xxxxxxxxxxx
74
BNP PARIBAS HONG KONG BRANCH
0/X Xxxxxxx Xxxxx
00 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Xx Xxxxx Xx
By: (Sd) Xxxx Xxxx Yu
(Sd) Xxxxxx Xxx Xx, Xxxxxx
BANK OF COMMUNICATIONS, HONG KONG BRANCH
00 Xxxxxx Xxxxxx
Xxxxxxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Mr Xxxxx Xxxx / Xx Xxxxxxx Xxxx
By: (Sd) Xu Chengfa
(Sd) Leung Ho Man, Xxxxxx
THE BANK OF EAST ASIA, LIMITED
00/X., 00 Xxx Xxxxx Xxxx Xxxxxxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Mr Xxxxxxx Xxx / Xx Xxxxxxxxx Xxxx
Corporate Lending & Syndication Department
By: (Sd) Xxxxxxxxx Xxxx
(Sd) Xxxxxxx Xxx
75
COMMERZ (EAST ASIA) LIMITED
00/X, Xxxx Xxxx Xxxx Xxxxxxxx
0X Xxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Xx Xxxx Xxxxx / Xx Xxxxx Xxxx
By: (Sd) Xxxx Xxxx Ming
(Sd) Xxxxxx Xx
CREDIT AGRICOLE INDOSUEZ, HONG KONG BRANCH
42nd - 00xx Xxxxxx, Xxx Xxxxxxxx Xxxxxx
Xxxxxxx,
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Mr Kingston Ho / Xx Xxxxxx Xxxxx
Loan Administration
By: (Sd) Xxxxxx Xxxxxxxx
(Sd) Xxxxxx Xx
DBS BANK LTD, HONG KONG BRANCH
16th Floor, Man Xxx Xxxxxxxx
00 Xxx Xxxxx Xxxx Xxxxxxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Corporate Banking Middle Office
By: (Sd) Xxxxx Xxxx
76
HANG SENG BANK LIMITED
00 Xxx Xxxxx Xxxx Xxxxxxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000 / 0000 0000
Attention: Mr Lok Xxxxx Xxx / Xx Xxxx Xxx
Corporate Credit Administration Department
By: (Sd) Y T Ng
(Sd) Wing N Xxxxx
X.X. XXXXXX (S.E.A.) LIMITED
000 Xxxxxxxx Xxxx
00xx Xxxxx, Xxxxxxx Xxxxx
Xxxxxxxxx 000000
Facsimile No: (00) 0000 0000
Attention: Xxxxx XxXxxx
Corporate Banking
By: (Sd) Xxxxx XxXxxx
MIZUHO CORPORATE BANK, LTD., HONG KONG BRANCH
00/X Xxx Xxxxxxx Xxxxx
00 Xxxxxxxxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Xx Xxxxxx To / Xx Xxxxxx Xxxx
Loan Operations Department
By: (Sd) Xxxxxxx Xx
00
XXXXXXXXXX (XXXX XXXX) LIMITED
00xx Xxxxx Xxxxxx Xxxxxx
00 Xxxxxxxxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Xx Xxxxxx Xx
By: (Sd) Xxxxxxx Xxxx
(Sd) Xxxxx Xxx
UFJ BANK LIMITED, HONG KONG BRANCH
Xxxxxxxx Xxxxx
0 Xxxxxx Xxxx Xxxxx
Xxxxxxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Xx Xxxxxx Xxx
Loan Administration
By: (Sd) Rox Xxx
THE AGENT
---------
BAYERISCHE LANDESBANK, HONG KONG BRANCH
19/F., Standard Chartered Bank Xxxxxxxx
0X Xxx Xxxxx Xxxx
Xxxxxxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Agency / Xx Xxxxx Xxxx / Ms Xxxxx Xxxx
By: (Sd) Paul C M Au
(Sd) Xxxxxxx Xxxxxxxxxxx
78
