THIS AGREEMENT is dated , 2000 and made
BETWEEN:-
(1) NEW EPOCH INFORMATION (BVI) LIMITED, a company incorporated under the laws
of British Virgin Islands and whose registered office is situated at P.O.
Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin
Islands (the "Borrower"); and
(2) HANG ▇▇▇▇ GOLD TECHNOLOGY LIMITED, a company incorporated in Bermuda and
whose registered office is at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ and whose principal place of business in Hong Kong is
situated at ▇▇▇▇ ▇▇-▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇, Focal Industrial Centre, 21 Man
Lok Street, Hunghom, Kowloon, Hong Kong (the "Lender").
BACKGROUND:-
The Lender has agreed, upon the terms and subject to the conditions of this
Agreement, to make available to the Borrower a loan facility in the maximum
aggregate amount of HK$50 million.
IT IS AGREED as follows:-
1. DEFINITIONS AND CONSTRUCTION
1.1 Terms defined
In this Agreement, unless the context otherwise requires:-
"Advance" means an advance made or to be made by the Lender under this Agreement
or, as the case may be, the outstanding principal amount of any such advance.
"Affiliate" means a Subsidiary or a Holding Company of the Lender or any other
Subsidiary of that Holding Company.
"Auditors" means the auditors of the Borrower from time to time.
"Available Commitment" means, the Commitment at any time less the Outstandings.
"Banking Day" means a day (other than a Saturday) on which dealings in deposits
in Dollars are carried on in Hong Kong and (if payment is required to be made on
such day) on which banks are open for business in Hong Kong and the relevant
place of payment hereunder.
1
"Breakage Costs" means the amount determined by the Lender to be the cost (if
any) of liquidating deposits or re-employing funds taken or borrowed to make or
to maintain the Loan or any part thereof.
"Commitment" means the Loan as reduced from time to time by any cancellation, or
termination under the provisions of this Agreement.
"Default" means any Event of Default .
"Default Rate" means the annual rate determined by the Lender to be the
aggregate of (i) the Margin, (ii) Prime or, if the provisions of Clause 9.1
apply, the cost to the Lender referred to in Clause 9.3(b) and (iii) 3% per
annum.
"Dollars" and "HK$" means the lawful currency for the time being of Hong Kong.
"Drawdown Date" means in respect of any Advance, the date which is specified as
the Drawdown Date therefor in the relevant Drawdown Notice or (as the context
may require) the date on which that Advance is made to the Borrower.
"Drawdown Notice" means a notice substantially in the form of Schedule 1.
"Drawdown Period" means the period commencing on the date of this Agreement and
ending on the earlier of (i) the date falling 36 months after the date of this
Agreement and (ii) the first Banking Day on which the Available Commitment is
zero.
"Event of Default" means any of the events or circumstances described in Clause
17.1.
"Facility" means the loan facility in the maximum aggregate amount of the
greater of:
(a) HK$50 million; and
(b) two-thirds of the proceeds of issues of debt or equity securities by the
Lender (net of expenses attributable to such issues) from time to time,
to be made available on the terms set out in this Agreement.
"Final Repayment Date" means the third anniversary of the first Drawdown Date.
"Financial Indebtedness" means any Indebtedness in respect of:-
(a) moneys borrowed and debit balances at banks; or
2
(b) any debenture, bond, note, loan stock or other security; or
(c) any acceptance credit; or
(d) receivables sold or discounted (otherwise than on a non-recourse
basis); or
(e) the acquisition cost of any asset to the extent payable before or
after the time of acquisition or possession by the party liable where
the advance or deferred payment is arranged primarily as a method of
raising finance or financing the acquisition of that asset; or
(f) leases entered into primarily as a method of raising finance or
financing the acquisition of the asset leased; or
(g) currency swap or interest swap, cap or collar arrangements; or
(h) amounts raised under any other transaction having the commercial
effect of a borrowing or raising of money; or
(i) any guarantee, indemnity or similar assurance against financial loss
of any person,
but no particular indebtedness shall be taken into account more than once.
"GAAP" means accounting principles generally accepted in Hong Kong.
"Group" means the Borrower, any Subsidiary of the Borrower and any other company
which is a Subsidiary of such company and references to a "member of the Group"
shall be construed to mean any person or entity which is comprised within the
Group.
"Holding Company" means in relation to any person, an entity of which that
person is a Subsidiary.
"Hong Kong SAR" means the Hong Kong Special Administrative Region of the
People's Republic of China.
"Indebtedness" means any obligation for the payment or repayment of money,
whether as principal or as surety and whether present or future, actual or
contingent, primary or collateral, several or joint, secured or unsecured,
subordinated or unsubordinated.
"Interest Payment Date" means the last day of an Interest Period.
"Interest Period" means each period for the calculation of interest in respect
of the Loan ascertained in accordance with Clauses 8.2 or 8.4.
3
"Loan" means the aggregate principal amount borrowed by the Borrower on the
Drawdown Dates or (as the context may require) the aggregate principal amount
owing to the Lender under this Agreement at any relevant time.
"London Banking Day" means a day on which Dollar deposits may be dealt with in
the London interbank market.
"Margin" means 2.5% per annum.
"Outstandings" means at any relevant time the principal amount of the Advances
owing to the Lender.
"Prime" means the prime lending rate as quoted by the Hongkong and Shanghai
Banking Corporation Limited on the first Banking Day in the period in respect of
which interest is to be calculated;
"Security Documents" means this Agreement, the charge over 50.1% of the issue
share capital of the Borrower by New Epoch Holdings Limited and any other
document executed from time to time by whatever person as a further security for
the Borrower's obligations hereunder and "Security Document" means any of them;
"Security Interest" means any mortgage, charge (whether fixed or floating),
pledge, lien, hypothecation, assignment, security interest or other encumbrance
of any kind securing or conferring any priority of payment in respect of any
obligation of any person and includes any right granted by a transaction which,
in legal terms, is not the granting of security but which has an economic or
financial effect similar to the granting of security in each case under any
applicable law.
"Security Party" means each party to any Security Document (other than the
Lender) and "Security Parties" shall be construed accordingly.
"Subsidiary" of a person means any company or entity directly or indirectly
controlled by such person, for which purpose "control" means either ownership of
more than fifty per cent. (50%) of the voting share capital (or equivalent right
of ownership) of such company or entity or power to direct its policies and
management whether by contract or otherwise.
"Taxes" includes all present and future taxes, levies, imposts, duties, fees or
charges of whatever nature together with interest thereon and penalties in
respect thereof and "Taxation" shall be construed accordingly.
1.2 Clause headings
Clause headings and the table of contents are inserted for convenience of
reference only and shall be ignored in the interpretation of this Agreement.
4
1.3 Construction
In this Agreement, unless the context otherwise requires:-
(a) references to Clauses and Schedules are to be construed as references to
the clauses of, and schedules to, this Agreement and references to this
Agreement include its Schedules;
(b) reference in a Clause to a sub-clause shall be a reference to a sub-clause
of that Clause;
(c) references to (or to any specified provision of) this Agreement or any
other document shall be construed as references to this Agreement, that
provision or that document as in force for the time being and as amended in
accordance with the terms thereof, or, as the case may be, with the
agreement of the relevant parties and (where such consent is, by the terms
of this Agreement or the relevant document, required to be obtained as a
condition to such amendment being permitted) the prior written consent of
the Lender;
(d) words importing the plural shall include the singular and vice versa;
(e) references to a person shall be construed as including references to an
individual, firm, company, corporation, unincorporated body of persons or
any state or any agency thereof;
(f) references to a document or agreement being "in the agreed form" means any
such document or agreement in the form approved and initialled by the
Lender; and
(g) any reference to the "Lender" shall, where the context permits, be
construed so as to include its and any subsequent successors and permitted
assigns in accordance with their respective interests.
2. THE FACILITY
Subject to the terms of this Agreement, the Lender hereby agrees to make
available to the Borrower a loan facility in the maximum aggregate amount
of HK$50 million.
5
3. PURPOSE
The purpose of the Facility is to assist the Borrower in financing the
development of the internet and e-commerce business of the Group and
associated companies of a member of the Group and accordingly, the Loan
shall be applied for that purpose but the Lender shall not be obliged to
concern itself with the application by the Borrower of the Loan.
4. THE LOAN
4.1 Drawdown
Subject to the terms and conditions of this Agreement, an Advance will be
made by the Lender to the Borrower, at any time and from time to time if
the following conditions are fulfilled:-
(a) not later than 10:00a.m. (Hong Kong time) on the last Banking Day before
the proposed Drawdown Date of the relevant Advance, the Lender has received
from the Borrower a Drawdown Notice (receipt of which shall oblige the
Borrower to borrow the amount therein requested on the Drawdown Date upon
the terms and conditions of this Agreement);
(b) the proposed Drawdown Date of each Advance, is a Banking Day falling within
the Drawdown Period;
(c) the proposed amount of the relevant Advance is equal to or less than the
Available Commitment; and
(d) no Event of Default has occurred and is continuing or will occur as a
result of the relevant Advance.
4.3 Payment of Proceeds
All amounts to be made available by the Lenders to the Borrower shall be
made available on the due date in Dollars in immediately available freely
transferable cleared funds to the account of the Borrower.
4.4 Cancellation after Drawdown Period
Any part of the Facility which shall not have been drawn down or cancelled
by the end of the Drawdown Period shall at that time be automatically
cancelled and the Available Commitments shall at that time be reduced to
zero.
6
5. CONDITIONS PRECEDENT
5.1 Documentary Conditions Precedent
The obligation of the Lender under this Agreement shall be subject to the
condition that the Lender, or its duly authorised representative, shall
have received before the each Drawdown Notice is given, the documents and
evidence specified in Schedule 2, each in form and substance satisfactory
to the Lender.
5.2 Further conditions
The obligation of the Lender to make available the Loan is subject to the
further conditions that at the time of the making of the Loan:-
(a) the Lender has completed the acquisition of 49.9% of the issued share
capital of the Borrower pursuant to the Sale and Purchase Agreement dated
24th June, 2000 entered into between, inter alia, the Lender and New Epoch
Holdings International Limited for not less than 28 calendar days or if
earlier, after the Lender has placed new shares in the Lender for an
aggregate consideration of not less than HK$50 million;
(b) no event mentioned in Clause 9.1 occurs or has occurred;
(c) the representations and warranties set out in Clause 15.1 are true and
correct on and as of each such time as if each was made with respect to the
facts and circumstances existing at such time; and
(d) no Default shall have occurred and be continuing or would result from the
making of the Loan.
6. REPAYMENT
6.1 The Borrower shall repay the Loan in full in one amount on the Final
Repayment Date together with all interest accrued thereon and all other
amounts payable hereunder.
6.2 No part of the Loan repaid shall be available for reborrowing.
7. PREPAYMENTS AND CANCELLATION
7.1 Voluntary prepayments
The Borrower may prepay, without premium or penalty, all or any part of the
Loan on any Interest Payment Date or on any other Banking Day provided
that:-
7
(a) the Borrower shall have given to the Lender not less than 14 days
prior written notice specifying the amount and proposed date of
prepayment; and
(b) the amount of any partial prepayment shall be not less than
HK$1,000,000 or an integral multiple thereof.
7.2 Additional Amounts on prepayments
Prepayments under this Agreement shall be made together with accrued
interest thereon and all other sums then due and payable under this
Agreement.
7.3 Cancellation of the Loan
The Borrower may, by giving to the Lender not less than 30 days' prior
written notice specifying the amount to be cancelled, cancel without
premium or penalty all or any part (but, if in part, being an amount of not
less than HK$1,000,000 or integral multiples thereof) of the Facility. Any
cancellation in part shall reduce the commitment of the Lender under the
Facility rateably.
7.4 Irrevocability
Any notice of prepayment or cancellation given by the Borrower under this
Agreement shall be irrevocable, shall specify the date upon which such
prepayment or cancellation is to be made and the amount of such prepayment
or cancellation and shall oblige the Borrower to make such prepayment or
cancellation on such date.
7.5 Limitation on prepayments
The Borrower may not voluntarily prepay or repay all or any part of the
Loan or cancel any part of the Loan under the Facility except at the times
and in the manner expressly provided for in this Agreement. The Borrower
shall not be entitled to reborrow any amount prepaid pursuant to this
Agreement.
7.6 Application of prepayments
The Lender shall apply any partial prepayment made in accordance with
Clause 7.1 pro tanto against the Borrower's repayment obligations under
Clause 6. Any prepayment made in accordance with Clause 9.4, Clause 10.1 or
Clause 11 shall reduce rateably the remaining obligations of the Borrower
under Clause 6.
8. INTEREST
8
8.1 Interest Rate
The Borrower shall pay interest in arrears on the Loan in respect of each
Interest Period on the last day of such Interest Period at the rate per
annum determined by the Lender to be the aggregate of (i) the Margin and
(ii) Prime for that Interest Period.
8.2 Interest Periods
The Interest Periods applicable to the Loan shall be of 12 months duration
provided that:-
(a) the first Interest Period in relation to the Loan shall commence on
the first Drawdown Date;
(b) each Interest Period (other than the first) shall commence on the last
day of the preceding Interest Period;
(c) if any Interest Period would otherwise end on a non-Banking Day
interest payable in respect of that period shall instead be payable on
the next following Banking Day in which case no adjustment is to be
made to the amount of interest payable;
(d) if any Interest Period commences on the last Banking Day of a calendar
month or on a day for which there is no numerically corresponding day
in the calendar month 12 months thereafter as the case may be, that
Interest Period shall, subject to paragraph (e) end on the last
Banking Day of such later calendar month;
(e) any Interest Period which would otherwise extend beyond the Final
Repayment Date shall instead end on that date.
8.3 Day Count Fraction
Interest shall accrue from day to day, shall be calculated on the basis of
the actual number of days elapsed and a 360 day year, including the first day of
the period during which it accrues but excluding the last.
8.4 Default interest
If the Borrower fails to pay any sum on its due date for payment under this
Agreement, the Borrower shall on demand by the Lender pay interest on such sum
from the due date up to the date of actual payment (as well after as before
judgment) at the Default Rate. Such interest shall be compounded monthly, or
following such longer period as the Lender shall deem appropriate.
9. SUBSTITUTE BASIS
9.1 Market disruption
9
If, in relation to any Interest Period:-
(a) the Lender determines (which determination shall be conclusive and
binding) that by reason of circumstances affecting the Hong Kong
interbank market generally, adequate and fair means do not or will not
exist for ascertaining Prime for that Interest Period; or
(b) the Lender determines that deposits in Dollars in the required amount
for the relevant Interest Period are not available to it in the London
interbank market or that Prime does not adequately reflect the cost to
the Lender of obtaining funds for that Interest Period,
the Lender shall promptly notify the Borrower accordingly.
9.2 Consultation and Agreement
Immediately following the notification referred to in Clause 9.1, the
Borrower and the Lender shall negotiate in good faith with a view to
agreeing upon a substitute basis for determining the applicable interest
rate. If a substitute basis is agreed within a period of 30 days after such
notification or such longer period for discussion as the Borrower and the
Lender may agree, that substitute basis shall take effect in respect of
such Interest Period in accordance with its terms.
9.3 No agreement
If a substitute basis is not so agreed and the Loan has been made, the
Borrower shall pay interest on the Loan to the Lender for the relevant
Interest Period at the rate per annum equal to the aggregate of:-
(a) the Margin; and
(b) the cost (expressed as an annual interest rate) to the Lender of
funding the Loan during the relevant Interest Period (as conclusively
determined by the Lender).
9.4 Prepayment
If a substitute basis is not so agreed pursuant to Clause 9.2, if the Loan
has been made, the Lender or the Borrower may request the prepayment of the
Loan, by giving written notice to the other specifying a prepayment date
which is not less than 30 days after such notice is given. On the date
specified in the notice the Facility shall be cancelled and the Borrower
shall prepay the Loan in full together with interest thereon to the date of
prepayment and all other sums payable hereunder. For this purpose, the
interest rate from time to time applicable to the Loan shall be the rate as
ascertained in accordance with Clause 9.3 in relation to the relevant
period.
10
10. INCREASED COSTS
10.1 If the result of any change in, or the introduction of, any law, regulation
or regulatory requirement or any change in the interpretation or
application thereof or compliance by the Lender or any of its Affiliates
with any direction, request or requirement (whether or not having the force
of law) of any central bank, monetary, regulatory or other authority
(including, in each case without limitation, those relating to Taxation,
capital adequacy, liquidity, reserve assets and special deposits) is to:-
(a) subject the Lender or any of its Affiliates to Taxes or change the
basis of Taxation of the Lender or any of its Affiliates with respect
to any payment under this Agreement (other than Taxes or Taxation on
the overall net income or profits of the Lender or any of its
Affiliates imposed in the jurisdiction in which it is incorporated or
in which its lending office under this Agreement is located); and/or
(b) increase the cost of, or impose an additional cost on, the Lender or
any of its Affiliates in relation to the making, maintaining or
funding the Loan; and/or
(c) reduce the amount payable or the effective return to the Lender or any
of its Affiliates under this Agreement; and/or
(d) reduce the Lender's or any of its Affiliates' rate of return on its
overall capital by reason to a change in the manner in which it is
required to allocate capital resources to its obligations under this
Agreement; and/or
(e) require the Lender or any of its Affiliates to make a payment or forgo
a return on or calculated by reference to any amount received or
receivable by it under or by reason of this Agreement,
then and in each such case:-
(i) the Lender shall notify the Borrower in writing of such event promptly
upon its becoming aware of the same; and
(ii) the Borrower shall on demand pay to the Lender the amount which the
Lender certifies as the amount required to compensate the Lender or
its Affiliates for such increased cost, reduction, payment or forgone
return; and
(iii)the Borrower and the Lender shall discuss in good faith whether any
alternative arrangement may be made to avoid such increased cost,
reduction, payment or foregone return. If no such alternative
arrangement is agreed, the Borrower may prepay the Loan together with
accrued interest thereon to the date of actual payment, on giving not
less than 30 days' prior written notice to the Lender, provided that
such notice is given within 60 days of the notification under
paragraph (i) above. The Facility shall be cancelled on the giving of
such notice..
11
10.2 Allocation
The Lender may in good faith allocate or spread costs and/or losses among
its assets and liabilities (or any class thereof) or such basis as it
reasonably considers appropriate. A demand may be made by the Lender under
this Clause at any time whether or not the Loan has been repaid.
11. ILLEGALITY
If it shall become unlawful any change or introduction of any law,
regulation, treaty, or official directive or any change in the
interpretation or application thereof, shall make it unlawful or contrary
to such regulation, treaty or official directive, as the case may be, in
any jurisdiction applicable to the Lender for the Lender to make available
or fund or maintain the Loan or to give effect to its obligations as
contemplated hereby, the Lender shall promptly upon becoming aware of the
same, by written notice to the Borrower, declare that the Lender's
obligations shall be terminated forthwith whereupon the Borrower will if so
required pursuant to such law, regulation, treaty or official directive
prepay forthwith (or, if permitted by the relevant law, regulation, treaty
or official directive, at the end of the then current Interest Period) the
Loan. The Facility shall be cancelled on the giving of such notice.
12. INDEMNITIES
12.1 General Indemnity
The Borrower shall, on demand by the Lender, indemnify the Lender against
all costs, losses, expenses and liabilities, including (without limitation)
Breakage Costs and loss of margin, which the Lender may sustain or incur as
a consequence of all or any of:-
(a) any default in payment on the due date by the Borrower of any sum due
or expressed to be due under this Agreement;
(b) the occurrence or continuation of any Event of Default or Default;
(c) any accelerated repayment under Clause 17 (Events of Default);
(d) any failure to borrow in accordance with the Drawdown Notice,
including any failure by it to satisfy any of the conditions in Clause
5;
12
(e) any repayment or prepayment of the Loan or any part thereof (other
than in accordance with the provisions of Clause 7); or
(f) any payment of principal or an overdue amount being received from any
source otherwise than on the last day of an Interest Period subject to
Clauses 8.2 and 13.5.
12.2 Currency Indemnity
If an amount due to the Lender from the Borrower in one currency (the
"first currency") is received by the Lender in another currency (the
"second currency"), the Borrower's obligations to the Lender in respect of
such amount shall only be discharged to the extent that the Lender may
purchase the first currency with the second currency in accordance with its
normal banking practice. If the amount of the first currency which may be
so purchased (after deducting any costs of exchange and any other related
costs) is less than the amount so due, the Borrower shall indemnify the
Lender against the shortfall.
13. PAYMENTS
13.1 Place
All payments by the Borrower under this Agreement shall be made to the
Lender to its account at such office or bank as it may notify to the
Borrower for this purpose.
13.2 Funds
Payments under this Agreement shall be made for value on the due date at
such times and in such funds as the Lender may specify as being customary
at the time for the settlement of Dollars.
13.3 Set-off and counterclaim
All payments made by the Borrower under this Agreement shall be made
without set-off or counterclaim.
13.4 Refunds
Where any sum is to be paid under this Agreement to the Lender for the
account of another person, the Lender may assume that the payment will be
made when due and may (but shall not be obliged to) make such sum available
to the person so entitled. If it proves to be the case that such payment
was not made to the Lender, then the person to whom such sum was so made
available shall on request refund such sum to the Lender together with
interest thereon sufficient to compensate the Lender for the cost of making
available such sum up to the date of such repayment and the person by whom
such sum was payable shall indemnify the Lender for any and all loss or
expense which the Lender may sustain or reasonably incur as a consequence
of such sum not having been paid on its due date.
13
13.5 Business Day Convention
When any payment under this Agreement would otherwise be due on a day which
is not a Banking Day, the due date for payment shall be the immediately
following Banking Day and (subject to clause 8.2) the amount payable shall
be adjusted accordingly.
13.6 Certificates
Any certificate or determination of the Lender as to any rate of interest
or any other amount pursuant to and for the purposes of this Agreement or
any Security Document shall, in the absence of manifest error, be
conclusive and binding on the Borrower. Any such certificate shall set out
the basis of computation in reasonable detail.
14. TAXES
14.1 Taxes
If at any time the Borrower is required to make any deduction or
withholding in respect of Taxes or otherwise from any payment due under
this Agreement for the account of the Lender, the sum due from the Borrower
in respect of such payment shall be increased to the extent necessary to
ensure that, after the making of such deduction or withholding, the Lender
receives on the due date for such payment (and retains, free from any
liability in respect of such deduction or withholding) a net sum equal to
the sum which it would have received had no such deduction or withholding
been required to be made and the Borrower shall indemnify the Lender
against any losses or costs incurred by the Lender by reason of any failure
of the Borrower to make any such deduction or withholding or by reason of
any increased payment not being made on the due date for such payment. The
Borrower shall promptly deliver to the Lender any receipts, certificates or
other proof evidencing the amounts (if any) paid or payable in respect of
any deduction or withholding as aforesaid.
14.2 Tax Credits
If the Borrower pays any increased amount under Clause 14.1 and the Lender
effectively obtains a refund of tax or credit against tax by reason of that
payment, and if the Lender is able (in its sole opinion, which shall not be
capable of being challenged) to identify that refund or credit as being
attributable to that payment having regard to its other activities, then
the Lender shall reimburse to the Borrower such amount as it shall
determine (any such determination being conclusive) to be the proportion of
that refund or credit as will leave the Lender after that reimbursement in
no better or worse position than it would have been in if that payment had
not been required. The Lender shall not be obliged to arrange its tax
affairs in any particular manner or to disclose any information regarding
its tax affairs or commutations to the Borrower.
14
15. REPRESENTATIONS AND WARRANTIES
15.1 Representations and Warranties
The Borrower represents and warrants to the Lender that:-
(a) Status: the Borrower is a company duly incorporated and validly existing
under the laws of the British Virgin Islands and has full power, authority
and legal right to own its property and assets and to carry on its business
as such business is now being conducted;
(b) Power and Authority: the Borrower has all legal power and authority to
enter into this Agreement and each of the Security Documents to which it is
a party and perform its obligations under this Agreement and each of the
Security Documents to which it is a party and all action (including any
corporate action) required to authorise the execution and delivery of this
Agreement and each of the Security Documents to which it is a party and the
performance of its obligations under this Agreement and each of the
Security Documents to which it is a party has been duly taken (or, in the
case of any board meetings required in respect of the same, will be duly
taken prior to any Drawdown Date);
(c) Legal Validity: this Agreement and the Security Documents to which the
Borrower is a party constitutes or, when so executed and delivered, will
constitute legal, valid and binding obligations of the Borrower and,
subject to the usual qualifications as to matters of law, enforceable in
accordance with their terms;
(d) Non-conflict with laws: the entry into and performance of this Agreement
and each of the Security Documents to which the Borrower is a party and the
transactions contemplated by this Agreement and each of the Security
Documents to which the Borrower is a party do not and will not conflict
with or result in a breach of (i) any law, judgment or regulation or any
official or judicial order, or (ii) the constitutional documents of the
Borrower, or (iii) any agreement or document to which the Borrower is a
party or which is binding upon it or any of its assets or revenues, nor
cause any limitation placed on it or the powers of its directors to be
exceeded or result in the creation or imposition of any Security Interest
on any of its assets or revenues pursuant to the provisions of any such
agreement or document;
15
(e) No consents: no consent of, giving of notice to, or registration with, or
taking of any other action in respect of, any governmental authority or
agency in Hong Kong or any other relevant jurisdiction or any shareholders
or creditors of the Borrower is required for or in connection with the
execution, validity, delivery, enforceability and admissibility in evidence
in proceeding of this Agreement and the Security Documents to which the
Borrower is a party (other than registrations thereof at the Companies
Registry in Hong Kong), or the carrying out by, the Borrower of any of the
transactions contemplated hereby or thereby;
(f) Litigation: no litigation, arbitration or administrative proceeding is
currently taking place or pending or, to the knowledge of the Borrower,
threatened against the Borrower or its assets which would adversely affect
its financial condition or its ability to perform its obligations under
this Agreement or the Security Documents to which it is a party;
(g) Taxes on payments: all payments to be made by the Borrower under this
Agreement and each of the Security Documents to which the Borrower is a
party may be made by the Borrower free and clear of, and without deduction
for, Taxes and no deductions or withholdings are required to be made
therefrom;
(h) Pari passu ranking: the obligations of the Borrower hereunder rank at least
pari passu with all its other present and future unsecured and
unsubordinated obligations save for any obligations mandatorily preferred
by law and not by contract;
(i) Ownership of assets: each member of the Group has good title to or valid
leases of all its assets which are reflected in the financial statements as
at the date hereof subject to no Security Interest except as disclosed in
such financial statements or as created by the Security Documents or
otherwise permitted under Clause 16.8;
(j) Tax Liabilities: the Borrower have complied with all Taxation laws in all
jurisdictions in which they are subject to Taxation and have paid all Taxes
due and payable by each of them; no material claims are being asserted
against them with respect to Taxes;
(k) No Default: no Default has occurred and is continuing;
(l) No Immunity: the Borrower is generally subject to civil and commercial law
and to legal proceedings and neither the Borrower nor any of its assets or
revenues is entitled to any immunity or privilege (sovereign or otherwise)
from any set-off, judgment, execution, attachment or other legal process;
(m) Other Information: all financial and other information (other than any
plans or projections) supplied to the Lender by or on behalf of the
Borrower or any other Security Party in connection with the Facility or the
matters envisaged therein is to the best of the Company's knowledge (based
on information available at the time) true and accurate in all material
respects;
16
(n) Security Interests over Assets: save as may be permitted by Clause 16.8 or
as created by the Security Documents, no Security Interest exists over all
or any of the present or future revenues or assets of any member of the
Group;
(o) Choice of Law: in any proceedings taken in the Hong Kong SAR in relation to
this Agreement, the choice of the law of the Hong Kong SAR as the governing
law of this Agreement and any judgment obtained in the Hong Kong SAR would
be recognised and enforced.
15.2 Repetition
The representations and warranties in Clause 15.1 shall be deemed to be
repeated by the Borrower throughout the continuance of this Agreement as if
made, with reference to the facts and circumstances existing from time to
time.
16. UNDERTAKINGS
16.1 Duration
The undertakings in this Clause shall remain in force from and after the
date hereof and so long as any sum remains payable under this Agreement.
16.2 Information
The Borrower will furnish to the Lender:-
(a) as soon as they are available, but in any event within 90 days after the
end of each of its financial years, copies of the audited financial
statements (including a profit and loss account and balance sheet and in
the case of the Borrower, prepared on a consolidated basis) of the Borrower
and each of its Subsidiaries in respect of such financial year;
(b) as soon as they are available, but in any event within 60 days after the
end of each half of each of its financial years, copies of the unaudited
financial statements (including a profit and loss account and balance sheet
prepared on a basis consistent with the audited financial statements of the
relevant company and in the case of the Borrower, prepared on a
consolidated basis) of the Borrower and each of its Subsidiaries in respect
of such 6 months period;
17
(c) promptly on request, all notices or other documents despatched by the
Borrower to the Borrower's shareholders or creditors (or any class
thereof);
(d) promptly on request, such further information in the possession or control
of the Borrower or of any of its Subsidiaries with respect to the financial
condition and operations of the Borrower or any other member of the Group
as the Lender may from time to time reasonably request;
(e) promptly, details of any actual, pending or threatened litigation,
arbitration or administrative proceedings against the Borrower or any other
member of the Group or any of their respective assets which might
materially and adversely affect the Borrower's financial condition or its
ability to perform its obligations under this Agreement.
All audited financial statements required hereunder shall be prepared in
accordance with applicable laws and regulations of the British Virgin Islands
and Hong Kong and generally accepted accounting principles and policies
consistently applied and show a true and fair view of the financial position of
the Borrower and each member of the Group or the Group, as the case may be, as
at the end of, and the results of their respective operations for, the financial
period to which they relate, and as at the end of such period.
16.3 Records
The Borrower shall keep proper records and books of account in respect of
its business and that of its Subsidiaries and permit the Lender and/or any
professional consultants appointed by the Lender at all reasonable times
upon prior notice to inspect and examine the records and books of account
of the Borrower and its Subsidiaries.
16.4 Notification of Defaults
The Borrower will notify the Lender in writing of any Default forthwith
upon the occurrence thereof.
16.5 Compliance certificates
The Borrower will within 90 days of the end of each of its financial years
and also promptly at the request of the Lender from time to time furnish
the Lender with a certificate signed by the Auditors certifying that no
Default has occurred and is continuing or, if the same has occurred,
specifying the Default or event and the steps being taken to remedy the
same.
16.6 Consents
18
The Borrower will obtain and promptly renew from time to time and
thereafter maintain in full force and effect, and will comply with and
promptly furnish certified copies to the Lender of, all such
authorisations, approvals, consents, licences and exemptions as may be
required under any applicable law or regulation to enable it to perform its
obligations under this Agreement or the Security Documents to which it is a
party or required for the validity or enforceability of this Agreement or
the Security Documents to which it is a party.
16.7 Pari passu ranking
The Borrower undertakes that its obligations hereunder do and will at all
times rank at least pari passu with all other present and future unsecured
obligations of the Borrower save for any obligations preferred by law.
16.8 Mergers
The Borrower will not without the prior written consent of the Lender take
any step with a view to dissolution, liquidation or winding-up.
16.9 Maintenance of status and franchises
(a) The Borrower will do all such things as are necessary to maintain its
corporate existence in good standing and to conduct its business in a
proper and efficient manner and in compliance with all laws,
regulations, authorisations, agreements and obligations applicable to
it and pay all Taxes imposed on it when due.
(b) The Borrower will and will procure that each other member of the Group
will, ensure that it has the right and is duly qualified to conduct
its business as it is or is intended as at the date hereof to be
conducted in all applicable jurisdictions and will obtain and maintain
all franchises and rights necessary for the conduct of its business.
16.10 Indebtedness
Save with the consent of the Lender, no member of the Group will borrow or
obtain credit or execute any guarantees or indemnities in favour of any
person other than another member of the Group (other than any such
guarantees which arise in the ordinary course of business) or incur any
other Financial Indebtedness (in any such case if the total amount of such
Financial Indebtedness would at any time exceed the Financial Indebtedness
as at the date of this Agreement) to the extent that it will materially and
adversely affect the value of the assets secured by the Security Documents.
16.11 Lending
19
The Borrower will not and will procure that no other member of the Group
will make or grant any loan or advance to the extent that it will
materially and adversely affect the value of the assets secured by the
Security Documents.
17. EVENTS OF DEFAULT
17.1 There shall be an Event of Default if, for any reason and whether or not
for a reason outside the control of the Borrower:-
(a) Non-payment: the Borrower fails to pay any sum due from it under this
Agreement or any Security Document to which it is a party within 10
days of the due date, in the currency and in the manner stipulated
herein or therein Provided that such non-payment shall not constitute
an Event of Default if it is solely due to administrative or technical
reasons affecting the transfer of funds despite timely payment
instructions having been given by the Borrower; or
(b) Other Breach: the Borrower or any other Security Party fails duly to
comply with any of its respective obligations (other than those
referred to in Clause 17.1(a)) under this Agreement or any of the
Security Documents within 10 days of the due date therefor and in
respect only of a failure which in the opinion of the Lender is
capable of remedy, does not remedy such failure to the Lender's
satisfaction within 7 days after receipt of written notice from the
Lender requiring it to do so; or
(c) Breach of Representation: any representation or warranty made or
deemed to be made or repeated by or in respect of the Borrower or any
other Security Party in or pursuant to this Agreement or any of the
Security Documents is or proves to have been incorrect or misleading
in any respect considered by the Lender to be material; or
(d) Consents: any consent, authorisation, licence or approval of, or
registration with or declaration to, governmental or public bodies or
authorities or courts required by the Borrower or any other Security
Party to authorise, or required by the Borrower or any other Security
Party in connection with, the execution, delivery, performance,
validity, enforceability or admissibility in evidence of this
Agreement or any of the Security Documents is modified in a manner
unacceptable to the Lender or is not granted or is revoked or
terminated or expires and is not renewed or otherwise ceases to be in
full force and effect and, in any such case, such event is materially
prejudicial to the Borrower's ability to perform its obligations
hereunder; or
(e) Creditors: a creditor attaches or takes possession of, or a distress,
execution sequestration or other process is levied or enforced upon or
sued out against, any of the material undertakings, assets, rights or
revenues of any member of the Group and is not discharged within 20
days or any step is taken to enforce any present or future Security
Interest on or over all or any substantial part of the assets or
revenues of the Borrower and is not released or revoked within 20
days; or
20
(f) Suspension of Debts: any member of the Group stops or suspends or
threatens to stop or suspend payment of all or any material part of
its debts or is unable or admits inability to pay its debts as they
fall due or commences negotiations with one or more of its creditors
or takes any proceedings or other step with a view to the general
readjustment or rescheduling or a moratorium of all or part of its
Financial Indebtedness or proposes a general assignment or enters into
any composition or other arrangement for the benefit of its creditors
generally or any class of creditors or proceedings are commenced in
relation to any member of the Group under any law, regulation or
procedure relating to reconstruction or readjustment of debts; or
(g) Winding-up: any person takes any action, or any proceedings are
started or other steps taken by any person, for (i) any member of the
Group to be adjudicated or found bankrupt or insolvent, (ii) the
winding-up, re-organisation, reconstruction or dissolution of the
Borrower or (iii) the appointment of a liquidator, administrator,
trustee, receiver or similar officer of any member of the Group of the
whole or a material part of their respective undertakings, assets,
rights or revenues and such action, proceedings or steps are not
discontinued, withdrawn or dismissed within 14 days; or
(h) Other Jurisdictions: any event occurs or proceeding is taken with
respect to any member of the Group in any jurisdiction to which it is
subject which has an effect equivalent or similar to any of the events
mentioned in sub-clauses(e), (f) or (g); or
(i) Suspension of Business or Expropriation: any member of the Group
suspends or ceases or threatens to suspend or cease to carry on its
business or any substantial part thereof or changes or threatens to
change the nature or scope of its business or any governmental or
other authority expropriates, seizes, or compulsorily acquires or
threatens to expropriate, seize or compulsorily acquire all or any
substantial part of its business or assets; or
(j) Illegality: it becomes or will become unlawful at any time for the
Borrower or any other Security Party to perform all or any of its
respective obligations under this Agreement or any of the Security
Documents or any of the respective obligations of the Borrower or any
other Security Party under this Agreement or any of the Security
Documents are not or cease to be or is claimed by it not to be legal,
valid and binding and in full force and effect; or
21
(k) Repudiation: the Borrower or any other Security Party repudiates this
Agreement or any of the Security Documents or does or causes to be
done any act or thing evidencing an intention to repudiate this
Agreement or any of the Security Documents or any action or
proceedings are commenced (and not withdrawn or dismissed within a
period of 14 days after its commencement) to enjoin or restrain the
performance of or compliance with any respective obligation of the
Borrower or any other Security Party under this Agreement or any of
the Security Documents or otherwise dispute the ability of the
Borrower or any other Security Party to enter into, exercise its
respective rights or perform or comply with any of its respective
obligations under this Agreement or any of the Security Documents; or
(l) Material adverse change: any other event occurs or circumstance arises
which, in the reasonable opinion of the Lender (after consultation
with the Borrower), is likely, materially and adversely to affect the
ability of the Borrower to perform all or any of its respective
obligations under or otherwise to comply with the terms of this
Agreement or any of the Security Documents; or
(m) Lenders shareholding: the Lender's percentage shareholding in the
Borrower is reduced below 49.9% of the issued share capital of the
Borrower by reason of any new Issue of Shares by the Borrower without
the Lender's consent; or
(n) Control of Borrower and its investment: New Epoch Holdings
International Limited shall cease to hold at least 50.1% of the issued
share capital of the Borrower or ▇▇. ▇▇▇ ▇▇▇▇ ▇▇▇ shall cease to hold
at least 50.1% of New Epoch Holdings International Limited.
17.2 Acceleration
The Lender may, without prejudice to any other rights of the Lender, at any
time after the happening of an Event of Default and so long as the same is
continuing by notice to the Borrower:-
(a) declare that the obligation of the Lender to make the Loan available
shall be terminated, whereupon the Facility shall be reduced to zero
forthwith; and/or
(b) declare that the Loan, all interest and all other sums payable under
this Agreement have become due and payable, whereupon the same shall,
immediately or in accordance with the terms of such notice, become due
and payable without further demand or other legal formality of any
kind; and/or
(c) take any action, exercise any other right or pursue any other remedy
conferred upon the Lender by this Agreement or any of the other
Security Documents or by any applicable law or regulation or otherwise
as a consequence of such Event of ▇▇▇▇▇▇▇.
▇▇
▇▇. ASSIGNMENT AND TRANSFER
18.1 Benefit of Agreement
This Agreement shall be binding upon, and enure for the benefit of the
Lender and the Borrower and their respective successors.
18.2 Assignments by Borrower
The Borrower may not assign or transfer any of its rights or obligations
under this Agreement.
18.3 Assignments by the Lender The Lender may assign or otherwise transfer or
grant participations in all or any part of its rights under this Agreement
and the Security Documents to any of its affiliates (an "Assignee") without
the consent of the Borrower.
18.4 References
If the Lender assigns or transfers all or any part of its rights, benefits
and/or obligations in accordance with this Clause all relevant references
in this Agreement and each Security Document to the Lender shall thereafter
be construed as a reference to the Lender and/or its Assignee to the extent
of their respective interests.
18.5 Disclosure
The Lender may disclose on a confidential basis to a prospective assignee
or transferee or to any other person who may propose entering into, or who
has entered into, contractual relations with the Lender in relation to this
Agreement such information about the Borrower and/or any other Security
Party as the Lender shall consider necessary in connection with such
assignment on transfer.
18.6 Transfer or Assignment
In the event of any transfer or assignment pursuant to this Clause 18, the
Borrower or any other Security Party shall not, by reason of such transfer
or assignment or by reason of the place of incorporation or location of
such transferee, participant, assignee or lending office, be obliged to pay
any greater amount under this Agreement or any of the Security Documents
than it would have been obliged to pay had no such transfer or assignment
(as the case may be) taken place but so that this shall be without
prejudice to any liability of the Borrower or any other Security Party to
pay such Assignee or the Lender (as the case may be) any increased cost
which arises subsequent to the date of such transfer or assignment.
23
19. EXPENSES
19.1 Expenses
The Borrower shall pay to the Lender on demand and in the currency
specified by the Lender:-
(a) all reasonable expenses (including legal, printing and out-of-pocket
expenses) incurred by the Lender in connection with the negotiation,
preparation, registration (where relevant) and execution of this
Agreement and the Security Documents and any amendment of extension of
or the granting of any waiver or consent under this Agreement or any
of the Security Documents; and
(b) all expenses (including legal and out-of-pocket expenses) incurred by
the Lender in connection with, the enforcement of, or preservation of
any rights under this Agreement or any of the Security Documents, or
otherwise in respect of the moneys owing under this Agreement or any
of the Security Documents together with interest at the Default Rate
from the date on which such expenses were incurred to the date of
payment (as well after as before judgment).
19.2 Stamp Duty
The Borrower shall pay all stamp, documentary, registration or other like
duties or taxes (including any duties or taxes payable by the Lender)
imposed on or in connection with this Agreement , any Security Document,
the Facility or the Loan and shall indemnify the Lender against any
liability arising by reason of any delay or omission by the Borrower to pay
such duties or taxes.
20. SET-OFF
Without prejudice to any right of set-off, combination of accounts, lien or
other rights which the Lender is at any time entitled whether by operation
of law or contract or otherwise, the Lender may (but shall not be obliged
to) set off against any obligation of the Borrower due and payable by it
hereunder without prior notice any moneys held by the Lender for the
account of the Borrower at any office of the Lender anywhere and in any
currency. The Lender may effect such currency exchanges as are appropriate
to implement such set-off.
24
21. NOTICES
21.1 Notices
Any notice or communication under or in connection with this Agreement
shall be in writing and shall be delivered personally or by first-class
prepaid letter (airmail if available), telex or facsimile transmission to
the addresses set out below or at such other address as the recipient may
have notified to the other parties in writing. Proof of posting or despatch
of any notice or communication to any party hereto shall be deemed to be
proof of receipt:-
(a) in the case of a letter, on the 5th Banking Day after posting;
(b) in the case of a telex or facsimile transmission, on the Banking Day
immediately following the date of despatch;
21.2 Addresses
Notices or communications shall be sent to the following addresses:-
To the Borrower:-
Name New Epoch Information
(BVI) Limited
Address Room 3606
Shun Tak Center ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Fax (▇▇▇) ▇▇▇▇-▇▇▇▇
Attention ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
To the Lender:-
Name Hang ▇▇▇▇ Gold Technology
Limited
Address ▇▇▇▇ ▇▇-▇▇, ▇/▇, ▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Fax (▇▇▇) ▇▇▇▇-▇▇▇▇
Attention Mr ▇▇▇▇▇▇▇ ▇▇▇▇
25
21.3 Language
Each notice or document referred to herein or to be delivered hereunder
shall be in the English language.
22. WAIVERS, REMEDIES, SEVERABILITY AND COUNTERPARTS
22.1 Waivers
No failure or delay on the part of the Lender to exercise any power, right
or remedy under this Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise by the Lender of any power, right or remedy
preclude any other or further exercise thereof or the exercise of any other
power, right or remedy.
22.2 Remedies
The remedies provided in this Agreement are cumulative and are not
exclusive of any remedies provided by law.
22.3 Severability
If any provision of this Agreement is prohibited or unenforceable in any
jurisdiction such prohibition or unenforceability shall not invalidate the
remaining provisions hereof or affect the validity or enforceability of
such provision in any other jurisdiction.
22.4 Counterparts
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument, and any party
hereto may execute this Agreement by signing any such counterpart.
23. GOVERNING LAW AND JURISDICTION
23.1 Governing Law
This Agreement is governed by the law of the Hong Kong SAR.
23.2 Submission of Jurisdiction
For the benefit of the Lender, the Borrower irrevocably agrees that the
courts of the Hong Kong SAR are to have jurisdiction to settle any disputes
which may arise out of or in connection with this Agreement and that,
accordingly, any legal action or proceedings arising out of or in
connection with this Agreement ("Proceedings") may be brought in those
courts and the Borrower irrevocably submits to the jurisdiction of those
courts.
26
23.3 Other jurisdictions
Nothing in this Clause shall limit the right of the Lender to take
proceedings against the Borrower in any other court of competent
jurisdiction nor shall the taking of Proceedings in one or more
jurisdictions preclude the Lender from taking Proceedings in any other
jurisdiction, whether concurrently or not.
23.4 Waiver of inconvenient forum
The Borrower irrevocably waives any objection which it may at any time have
to the laying of the venue of any Proceedings in any court referred to in
this Clause and any claim that any such Proceedings have been brought in an
inconvenient forum.
23.5 Process Agent
The Borrower hereby irrevocably authorises and appoints ▇▇ ▇▇▇ Chun ▇▇▇,
▇▇▇▇▇▇▇▇ of Room 3606 Shun Tak Center ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ (or such other person being resident of or incorporated
in Hong Kong as it may by notice to the other Party substitute) to accept
service of all legal process arising out of or in connection with this
Agreement and service on ▇▇ ▇▇▇ Chun ▇▇▇, ▇▇▇▇▇▇▇▇ (or such substitute)
shall be deemed to be service on the Borrower.
23.6 Service
The Borrower irrevocably consents to any process in any Proceeding anywhere
being served by mailing a copy by post in accordance with Clause 21 and
such service shall become effective 7 days after mailing. Nothing shall
affect the right to serve any process in any other manner permitted by law.
23.7 Waiver of Immunities
To the extent that the Borrower has or hereafter may acquire any immunity
(sovereign or otherwise) from any legal action, suit or proceeding, from
the jurisdiction of any court or from set-off or any legal process (whether
service or notice, attachment prior to judgment, attachment in aid of
execution of judgment, execution of judgment or otherwise) with respect to
itself or any of its property, the Borrower hereby irrevocably waives and
agrees not to plead or claim such immunity in respect of its obligations
under this Agreement.
IN WITNESS whereof the parties to this Agreement have caused this Agreement to
be duly executed on the date first above written.
27
SCHEDULE 1
Form of Drawdown Notice
........................., 2000
To: [Name and address of Lender]
HK$[ ] loan
Facility Agreement dated ........................., 2000
We refer to the above Facility Agreement and hereby give you notice that we wish
to draw down in accordance under the Loan namely HK$...................., on
........................., 2000. The funds should be credited to [name and
number of account] with [insert bank details].
We confirm that:-
(a) no event or circumstance has occurred and is continuing which constitutes a
Default;
(b) the representations and warranties contained in the Facility Agreement are
true and correct at the date hereof as if made with respect to the facts
and circumstances existing at such date;
(c) the borrowing to be effected by the drawdown of the Loan will be within our
powers, has been validly authorised by appropriate action and will not
cause any limit on our borrowings (whether imposed by statute, regulation,
agreement or otherwise) to be exceeded.
Words and expressions defined in the Facility Agreement shall have the same
meanings where used herein.
For and on behalf of
New Epoch Information (BVI) Limited
....................................
28
SCHEDULE 2
Documents and evidence required as conditions precedent
1. Fully executed original counterparts of each of:-
(a) this Agreement;
(b) a legal charge in a form to the satisfaction of the Lender duly executed by
New Epoch Holdings Limited over such number of shares (rounded up to the
nearest integral number) of the Borrower to be calculated as follows
(subject to a maximum of 50.1% of the then issued share capital of the
Borrower):-
A x C
B
A = the aggregate of the amount of Advance then subject to the Drawdown
Notice and the principal amount of the Loan then outstanding
B = HK$374 million
C = total number of shares of the Borrower then in issue
(c) a certified copy of the board minutes of the chargor authorising the
creation and execution of the charge;
(d) all notices, consents, acknowledgements and other documents required to be
received, given or exchanged pursuant to this Agreement and the other
Security Documents prior to drawdown of the Loan;
(e) a certificate in the form set out in Schedule 3 together with all the
documents referred to therein.
2. Evidence that all governmental and other licences, approvals, consents,
registrations and filings necessary for any matter or thing contemplated by
this Agreement and the other Security Documents and for the legality,
validity, priority, enforceability, admissibility in evidence and
effectiveness thereof have been obtained or effected on an unconditional
basis and remain in full force and effect (or, in the case of effecting of
any registrations and filings, that arrangements satisfactory to the Lender
have been made for the effecting of the same within any applicable time
limit).
3. Arrangements satisfactory to the Lender have been made for all expenses
(referred to in Clause 19.2), including without limitation all legal fees,
incurred on or prior to the proposed Drawdown Date, to be paid.
29
4. Such other documents and evidence as the Lender may reasonably require.
30
SCHEDULE 3
Certificate of the Borrower
[ ], 2000
To: [Name and address of the Lender]
I refer to a loan facility agreement (the "Facility Agreement") dated [ ], 2000
between (1) [ ] as borrower (the "Borrower") and (2)
[_____________________________] as lender (the "Lender") in relation to a loan
facility in the maximum aggregate of HK$50 million to be made available on the
terms and conditions set out therein.
I am a Director of the Borrower and hereby certify as follows:-
1. I am duly authorised to give this Certificate.
2. Powers: Delivered with this Certificate and signed or initialled by me for
the purpose of identification is a true, complete and up-to-date copy of
the Memorandum of Association and Bye-laws of the Borrower as in effect
when it signed the Facility Agreement and on the date of this Certificate.
The Borrower is carrying on a business authorised under its Memorandum of
Association. Neither the entry into the Facility Agreement by the Borrower,
nor the exercise of its rights and/or performance of or compliance with its
obligations under the Facility Agreement does or will violate, or exceed
any borrowing or other power or restriction granted or imposed by, its
Memorandum of Association and Bye-laws.
3. Due Authorisation: Delivered with this Certificate and signed or initialled
by me for the purpose of identification is a true and complete copy of the
Minutes of a duly convened meeting of the Board of Directors of the
Borrower duly held on [ ], 2000 at which a duly constituted quorum of
Directors was present throughout and at which the Resolutions set out in
the Minutes were duly passed. Each of those Resolutions remains in full
force and effect without modification. Those Resolutions constitute all
action necessary on the part of the Borrower to approve the Facility
Agreement and to authorise the signing of the Facility Agreement and the
giving of any communications and/or taking of any other action required
under or in connection with the Facility Agreement on behalf of the
Borrower.
31
4. Due Execution: The Facility Agreement has been unconditionally signed and
delivered by the Borrower. The persons who signed the Facility Agreement on
behalf of the Borrower were duly authorised signatories of the Borrower
when the Facility Agreement was entered into.
5. Consents: No Consents are or will be required by or in relation to the
Borrower for any of the purposes stated in Clause 15.1(e) of the Facility
Agreement.
...............................................
Director of New Epoch Information (BVI) Limited
32
SIGNATURE PAGE
The Borrower
SIGNED by )
for and on behalf of )
NEW EPOCH INFORMATION (BVI) LIMITED )
The Lender
SIGNED by )
)
for and on behalf of )
HANG ▇▇▇▇ GOLD TECHNOLOGY LIMITED )
33
Private and Confidential
Dated , 2000
NEW EPOCH INFORMATION (BVI) LIMITED
(as Borrower)
and
HANG ▇▇▇▇ GOLD TECHNOLOGY LIMITED
(the Lender)
FACILITY AGREEMENT
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
HONG KONG
34
TABLE OF CONTENTS
CLAUSE NO. CLAUSE HEADING PAGE NO.
1. DEFINITIONS AND CONSTRUCTION
2. THE FACILITY
3. PURPOSE
4. THE LOAN
5. CONDITIONS PRECEDENT
6. REPAYMENT
7. PREPAYMENTS AND CANCELLATION
8. INTEREST
9. SUBSTITUTE BASIS
10. INCREASED COSTS
11. ILLEGALITY
12. INDEMNITIES
13. PAYMENTS
14. TAXES
15. REPRESENTATIONS AND WARRANTIES
16. UNDERTAKINGS
17. EVENTS OF DEFAULT
18. ASSIGNMENT AND TRANSFER
19. EXPENSES
20. SET-OFF
21. NOTICES
22. WAIVERS, REMEDIES, SEVERABILITY AND COUNTERPARTS
23. GOVERNING LAW AND JURISDICTION
SCHEDULE 1 - FORM OF DRAWDOWN NOTICE
SCHEDULE 2 - DOCUMENTS AND EVIDENCE REQUIRED AS CONDITIONS PRECEDENT
SCHEDULE 3 - CERTIFICATE OF THE BORROWER
35