EXHIBIT 4(gg)
CONFORMED COPY
DATED: 8 AUGUST 2003
Facility Agreement
between
PCCW-HKT Telephone Limited
as Borrower
Bank of China (Hong Kong) Limited
Barclays Capital
Bayerische Landesbank, Hong Kong Branch
Hang Seng Bank Limited
Industrial and Commercial Bank of China (Asia) Limited
Standard Chartered Bank
The Bank of East Asia, Limited
The Hongkong and Shanghai Banking Corporation Limited
as Co-ordinating Arrangers
The Financial Institutions listed herein
as Lenders
The Hongkong and Shanghai Banking Corporation Limited
as Agent
and
The Hongkong and Shanghai Banking Corporation Limited
as Security Trustee
relating to
HK$2,800,000,000 REVOLVING CREDIT AND TERM LOAN FACILITIES
Simmons&Simmons
35th Floor ▇▇▇▇▇▇ Kong Center ▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
T (▇▇▇) ▇▇▇▇ ▇▇▇▇ F (▇▇▇) ▇▇▇▇ ▇▇▇▇ DX 009121 Central 1
CONTENTS
1. DEFINITIONS AND INTERPRETATION..........................................1
2. THE FACILITY...........................................................16
3. PURPOSE................................................................16
4. CONDITIONS OF ADVANCE..................................................16
5. REPAYMENT..............................................................18
6. CANCELLATION AND PREPAYMENT............................................18
7. INTEREST...............................................................23
8. INTEREST PERIODS.......................................................23
9. CHANGES TO THE CALCULATION OF INTEREST AND BREAK COSTS.................24
10. FEES ..................................................................26
11. TAX GROSS UP AND CREDIT................................................26
12. INCREASED COSTS........................................................28
13. INDEMNITIES............................................................29
14. ILLEGALITY AND MITIGATION..............................................30
15. COSTS AND EXPENSES.....................................................32
16. REPRESENTATIONS AND WARRANTIES.........................................32
17. INFORMATION UNDERTAKINGS...............................................36
18. FINANCIAL COVENANTS....................................................38
19. GENERAL UNDERTAKINGS...................................................40
20. EVENTS OF DEFAULT......................................................42
21. CHANGES TO THE LENDERS.................................................46
22. CHANGES TO THE BORROWER................................................50
23. AGENT AND SECURITY TRUSTEE.............................................50
24. AMENDMENTS AND DECISIONS...............................................58
25. RETIREMENT OF AGENT AND SECURITY TRUSTEE...............................60
26. SHARING AMONG LENDERS..................................................61
27. PAYMENT MECHANICS......................................................63
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28. ENFORCEMENT OF SECURITY AND DISTRIBUTION OF RECOVERIES.................64
29. SET-OFF................................................................65
30. CONDUCT OF BUSINESS BY THE FINANCE PARTIES.............................65
31. NOTICES................................................................66
32. CALCULATIONS AND CERTIFICATES..........................................67
33. PARTIAL INVALIDITY.....................................................67
34. REMEDIES AND WAIVERS...................................................67
35. COUNTERPARTS...........................................................67
36. GOVERNING LAW..........................................................67
37. ENFORCEMENT............................................................68
SCHEDULE 1: THE LENDERS.......................................................69
SCHEDULE 2: CONDITIONS PRECEDENT..............................................70
SCHEDULE 3: NOTICES...........................................................72
SCHEDULE 4: FORM OF TRANSFER CERTIFICATE......................................74
SCHEDULE 5: FORM OF ASSIGNEE'S UNDERTAKING....................................76
SCHEDULE 6: FORM OF CONFIDENTIALITY UNDERTAKING...............................79
SCHEDULE 7: FORM OF COMPLIANCE CERTIFICATE....................................81
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THIS AGREEMENT is made on the 8th day of August 2003
BETWEEN:
(1) PCCW-HKT TELEPHONE LIMITED, a company incorporated in Hong Kong with
company number 676 (the "Borrower");
(2) BANK OF CHINA (HONG KONG) LIMITED, BARCLAYS CAPITAL, BAYERISCHE
LANDESBANK, HONG KONG BRANCH, HANG SENG BANK LIMITED, INDUSTRIAL AND
COMMERCIAL BANK OF CHINA (ASIA) LIMITED, STANDARD CHARTERED BANK, THE
BANK OF EAST ASIA, LIMITED and THE HONGKONG AND SHANGHAI BANKING
CORPORATION LIMITED (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");
(4) THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED as agent (the
"Agent"); and
(5) THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED as security
trustee (the "Security Trustee").
IT IS AGREED as follows:
PART 1: INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement (including the Schedules):
"Account Bank" means the bank at which the Prepayment Account is held
being The Hongkong and Shanghai Banking Corporation Limited.
"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 Security Trustee, the
Co-ordinating Arrangers and any successor Agent or Security Trustee
arising under clause 25 (Retirement of Agent and Security Trustee)
together with their respective Affiliates and the
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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 or the Security
Trustee, as the case may be, may require.
"Authorisation" means any governmental or regulatory authorisation,
consent, approval, licence, exemption, filing or registration.
"Available Commitment" means, in relation to a Facility, a Lender's
Commitment under that Facility minus:
(A) the amount of its participation in any outstanding Loans under
that Facility (other than, in relation to any proposed Facility B
Loan only, that Lender's participation in any Facility B Loans
that are due to be repaid or prepaid on or before the relevant
proposed Drawdown Date); and
(B) in relation to any proposed Facility B Loan, the amount of its
participation in any Loans that are due to be made under that
Facility on or before the proposed Drawdown Date.
"Available Facility" means, in relation to a Facility, the aggregate for
the time being of each Lender's Available Commitment in respect of that
Facility.
"Availability Period" means:
(A) in relation to Facility A the period from and including the date
of this Agreement to and including the earlier of the date
falling 3 Months after the date of this Agreement and the day on
which the Facility A Loan is made; and
(B) in relation to Facility B, 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);
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(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.
"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 a Facility A Commitment or a Facility B Commitment.
"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 an Event of Default or Potential Event
of Default, means:
(A) where the underlying circumstances which caused that Event of
Default or Potential Event of Default are incapable of remedy
when viewed objectively, that Event of Default or Potential Event
of 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
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(B) in any other case, that Event of Default or Potential Event of
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 Event of
Default or Potential Event of Default have been remedied
to the reasonable satisfaction of the Agent and the
resulting position is what it would have been if such
Event of Default or Potential Event of 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 claim the existence or pursuance of which constituted
an Event of Default or Potential Event of Default, that
Event of Default or Potential Event of 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.
"Costs" means in respect of any sale, transfer or disposal:
(A) all reasonable costs, fees (including legal fees), expenses
incurred or paid to third parties on arm's length terms solely
attributable thereto and liabilities to Tax; and
(B) all reasonable provisions for any capital Tax arising therefrom.
"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
Part 1 of Schedule 3 (Notices).
"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).
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"Facility" means Facility A or Facility B.
"Facility A" means the term loan facility to be made available under
this Agreement as described in clause 2 (The Facilities), as the same
may be reduced, varied or cancelled in accordance with the terms of this
Agreement.
"Facility A Commitment" means in relation to each Lender (subject to
clause 21 (Changes to the Lenders)), the amount set opposite its name
under the heading "Facility A Commitment" in Schedule 1 (The Lenders)
and/or (as the case may be) the amount of any other Facility A
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.
"Facility A Loan" means the loan made or to be made under Facility A or
the principal amount outstanding for the time being of that loan.
"Facility B" means the revolving loan facility made available under this
Agreement as described in clause 2 (The Facilities), as the same may be
reduced, varied or cancelled in accordance with the terms of this
Agreement.
"Facility B Commitment" means in relation to each Lender (subject to
clause 21 (Changes to the Lenders)), the amount set opposite its name
under the heading "Facility B Commitment" in Schedule 1 (The Lenders)
and/or (as the case may be) the amount of any other Facility B
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.
"Facility B Loan" means a loan made or to be made under Facility B or
the principal amount outstanding for the time being of that loan.
"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.
"Fair Market Value" means, in relation to the disposal of any asset, the
price which it would be reasonable to expect could be achieved on a
disposal of such asset on arm's length terms to a third party which is
not an Affiliate of the person disposing of such asset.
"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 the Selection
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 hereof; and
(B) the letter between the Agent, the Security Trustee and the
Borrower dated on or about the date hereof,
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each setting out the relevant fees referred to in clause 10 (Fees).
"Final Repayment Date" means the date falling 84 Months after the
earlier of the date on which the Facility A Loan is made and the date on
which the Facility A Commitment is otherwise cancelled in full.
"Finance Documents" means this Agreement, each Security Document, the
US$260 Million Subordinated Loan Accession Deed, the US$450 Million
Subordinated Loan Accession Deed, 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 Security Trustee, 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 member of the Group (as
lender of the relevant Inter-Group Borrowing) in favour of the Security
Trustee 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
6
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 the Borrower or
any of its Subsidiaries outstanding at any relevant time, the amount
included as Indebtedness of the Borrower or such Subsidiary 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 the Facility A Loan or a Facility B Loan.
"Majority Lenders" means:
7
(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 ▇▇▇▇▇'▇, 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
▇▇▇▇▇'▇ S&P / Fitch (% per annum)
------- ----------- -----------------
Rated lower than Baa3 Rated lower than BBB- 0.495
Baa3 BBB- 0.425
Baa2 BBB 0.375
Baa1 or higher BBB+ or higher 0.325
"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 ▇▇▇▇▇'▇ Investors Service, Inc.
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"Net Proceeds" means the cash proceeds received by the Borrower or (as
the case may be) any of its Subsidiaries from any sale, assignment,
transfer or disposal of assets less Costs.
"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(E) of Schedule 2 (Conditions Precedent) or created
pursuant to any of the Security Documents;
(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 (i) any
such Encumbrance shall be confined to the property or assets
acquired, leased or developed (including improved, constructed,
altered or repaired); (ii) 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 (iii) 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;
9
(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;
(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.
"Prepayment Account" means the interest bearing Hong Kong Dollar account
(including any sub-accounts thereof) in the name of the Borrower held
with the Account Bank for the purposes of mandatory prepayments under
clause 6.4 (Mandatory prepayment on disposal of Core Business Assets).
10
"Prepayment Account Charge" means a deed of charge over the Prepayment
Account granted by the Borrower in favour of the Security Trustee in the
Agreed Terms.
"Prepayment Date" means in relation to any balance standing to the
credit of the Prepayment Account, the last day of the current Interest
Period save in respect of any amounts deposited into the Prepayment
Account less than 3 Business Days' prior to the last day of the current
Interest Period in which case the Prepayment Date will be the last day
of the next succeeding Interest Period.
"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 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
11
(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 The Hongkong and Shanghai Banking
Corporation Limited, Standard Chartered Bank, Bayerische Landesbank,
Hong Kong Branch and Industrial and Commercial Bank of China (Asia)
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 any Facility, the
percentage borne by that Lender's Facility A Commitment or, as the case
may be, Facility B Commitment to the Total Facility A Commitments or, as
the case may be, Total Facility B 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 Facility B Loan:
(A) made or to be made on the same day that one or more maturing
Facility B Loans are due to be repaid; and
(B) the amount of which is equal to or less than the aggregate amount
of such maturing Facility B Loans.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Screen Rate" means the percentage rate per annum equal to the rate for
deposits in
12
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.
"Security Documents" means the Prepayment Account Charge and any other
document under which any security is granted by the Borrower to the
Security Trustee as required pursuant to the terms of this Agreement.
"Selection Notice" means a notice substantially in the form set out in
Part 2 of Schedule 3 (Notices) given in accordance with clause 8
(Interest Periods).
"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.
"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 in respect of a Facility the last day of the
Availability Period of such Facility.
"Third Party Borrowing" means any Indebtedness of any Borrower Group
Company owed to any party which is not a member of the Group.
13
"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 favour of the Security Trustee in the Agreed Terms in respect of such
Third Party Borrowing.
"Total Commitments" means the aggregate for the time being of the Total
Facility A Commitments and the Total Facility B Commitments, being, at
the date of this Agreement, HK$2,800,000,000.
"Total Facility A Commitments" means the aggregate of the Facility A
Commitments, being HK$1,400,000,000 at the date of this Agreement.
"Total Facility B Commitments" means the aggregate of the Facility B
Commitments, being HK$1,400,000,000 at the date of this Agreement.
"Transfer Certificate" means a certificate substantially in the form set
out in Schedule 4 (Form of Transfer Certificate).
"Transfer Date" means, in relation to a transfer, the later of:
(A) the proposed Transfer Date specified in the Transfer Certificate;
and
(B) the date on which the Agent executes the Transfer Certificate.
"US$" means the lawful currency for the time being of the United States
of America.
"US$260 Million Subordinated Loan Accession Deed" means an accession
deed to a Group Subordination Deed dated 11 March 2002 in respect of the
US$260 million subordinated loan advanced by the Parent to the Borrower
on 18 October 2001.
"US$450 Million Subordinated Loan Accession Deed" means an accession
deed to a Group Subordination Deed dated 11 March 2002 in respect of the
US$450 million subordinated loan advanced by the Parent to the Borrower
on 29 January 2002.
"Unpaid Sum" means any sum due and payable but unpaid by the Borrower
under the Finance Documents.
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 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 hereof 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;
14
(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;
(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; and
(14) "Barclays Capital" is a reference to Barclays Capital, the
investment banking division of Barclays Bank PLC.
(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.
15
PART 2: THE FACILITIES
2. THE FACILITIES
2.1 The Facilities
Subject to the terms of this Agreement, the Lenders agree to make
available to the Borrower:
(A) a Hong Kong Dollar term loan facility in an aggregate amount
equal to the Total Facility A Commitments; and
(B) a Hong Kong Dollar revolving loan facility in an aggregate amount
equal to the Total Facility B 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 each
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 the Drawdown Notice unless the Agent has
received all of the documents appearing to conform on their face to
those listed in Schedule 2 (Conditions Precedent). The Agent shall
notify the Borrower and the Lenders promptly upon such receipt.
16
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 (or in the
case of the Drawdown Notice for the Facility A Loan, 1 Business
Day) before the proposed Drawdown Date and the proposed Drawdown
Date is a Business Day which is or precedes the relevant
Termination Date;
(B) Amount: the amount of the proposed Loan shall be:
(1) equal to the relevant Available Facility or
(2) if less than the relevant Available Facility, 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: none of the events described in clause 9.2
(Market disruption and alternative interest rates) has occurred;
(F) No Material Adverse Change: 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);
(G) Interest Period: the proposed Interest Period is determined
pursuant to clause 8.1 (Selection of Interest Periods); and
(H) Facility A Loan: if such advance is a Facility A Loan, no prior
Facility A Loan has been advanced.
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
participating in the relevant Facility of the proposed Drawdown Date
and the amount of each such Lender's Relevant Percentage and subject
to and in accordance with the provisions of this Agreement, each such
Lender shall make available through its Facility Office its Relevant
Percentage of the
17
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
5.1 Repayment of the Facility A Loan
(A) The Borrower shall repay the Facility A Loan in full on the Final
Repayment Date.
(B) The Borrower may not reborrow any part of the Facility A which is
repaid, cancelled or prepaid.
5.2 Repayment of Facility B Loans
(A) Subject to clause 5.2(C), the Borrower shall repay each Facility
B Loan on the last day of its Interest Period.
(B) Subject to the terms of this Agreement, any amount repaid
pursuant to clause 5.2(A) may be reborrowed.
(C) If all or part of a Facility B Loan is to be repaid from the
proceeds of all or part of a Rollover Loan, then as between each
Facility B 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 Facility B on the
Final Repayment Date shall be repaid in full on such date.
6. CANCELLATION AND PREPAYMENT
6.1 Mandatory cancellation
Any part of a Facility which remains undrawn at the end of the
Availability Period for such Facility shall be automatically and
immediately cancelled and each Lender's undrawn Commitment in respect
of that Facility shall at that time be reduced to zero.
18
6.2 Voluntary cancellation
The Borrower may cancel the whole or any part of any 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 any Available Facility,
the amount cancelled shall be a minimum of HK$200,000,000 and
thereafter in integral multiples of HK$40,000,000.
6.3 Voluntary prepayment
The Borrower may prepay the whole or any part of the Facility A Loan
on any relevant Interest Payment Date without any premium or penalty
if:
(A) it has given to the Agent not less than 3 Business Days' (or such
shorter period as the Majority Lenders may agree) prior written
notice of the date and the amount of the prepayment;
(B) in the case of prepayment of part of the Facility A Loan, the
amount prepaid shall be a minimum of HK$200,000,000 and an
integral multiple of HK$40,000,000; and
(C) such prepayment is made together with accrued interest on the
amount prepaid and all other sums then due and payable to the
Facility A Lenders under the Finance Documents calculated up to
the date of prepayment.
6.4 Mandatory Prepayment on disposal of Core Business Assets
(A) The Borrower or any other Borrower Group Company may dispose of
or assign any part of its Core Business assets or ownership in
the Core Business to other parties on arm's length terms provided
that:
(1) each such disposal is reported in writing by the Borrower
to the Agent within 5 Business Days of the disposal
setting out details of the disposal and the amount of the
Disposal Proceeds (as defined below) received by the
relevant Borrower Group Company in respect of such
disposal;
(2) within 10 Business Days following each disposal notified
to the Agent pursuant to sub-paragraph (1) above, the
Borrower shall either (i) cause an amount equal to the Net
Prepayment Amount (as defined below) (if any) to be
deposited into the Prepayment Account or (ii) if such
deposit would cause a breach of any provision having a
similar effect to and containing similar restrictions to
those in clause 19.3 (Negative pledge) under any document
entered into in respect of the Indebtedness of any
Borrower Group Company, effect a prepayment in an amount
equal to the Net Prepayment Amount (as defined below) (if
any), such prepayment to be made together with accrued
interest on the amount prepaid and to the extent such
prepayment occurs otherwise than on an Interest Payment
Date, the Borrower shall also be liable for any Break
Costs in respect thereof; and
19
(3) the remaining provisions of this clause 6.4 are complied
with,
and PROVIDED FURTHER THAT in relation to any injection of Core
Business assets into any joint venture, the mandatory prepayment
provisions of this clause 6.4 shall apply as if the injection of
such assets was a disposal by the Borrower Group into the joint
venture unless such asset is injected into a joint venture in
respect of which the Borrower is the majority owner and retains
control. (For the avoidance of doubt "majority owner" means owner
of more than 50% of the paid up share capital of any company or
corporation).
"Disposal Proceeds" means the Net Proceeds (where such disposal
is wholly for cash) or the Fair Market Value less Costs (where
such disposal is in whole or in part for consideration other than
cash).
"Net Prepayment Amount" means an amount calculated in accordance
with the following formula:
[ 30 ] C
NPA =[ (A - B) x ----] x ---
[ 100] D
Where:
NPA = Net Prepayment Amount
A = in relation to any Core Business disposal, an
amount equal to the Disposal Proceeds received by
the relevant Borrower Group Company
B = the amount by which the HK$ equivalent of all
Disposal Proceeds (excluding the proceeds
comprising A) relating to Core Business disposals
during the then current Financial Year is less than
HK$1,000 million
C = the aggregate amount of the Facility A Loan
outstanding on the date of the disposal
D = the aggregate amount of the Facility A Loan
outstanding on the date of the disposal plus the
aggregate principal amount outstanding on the date
of the disposal under each other loan facility
which would be required to be prepaid under which
any Borrower Group Company is subject to a similar
mandatory prepayment covenant in respect of the
disposal of the Core Business assets (an "Other
Financing Arrangement").
(B) The Borrower shall at least 3 Business Days prior to the
date of deposit into the Prepayment Account or, as the
case may be, prepayment pursuant to sub-paragraph (A)(2)
of clause 6.4 deliver to the Agent a letter certifying:
(1) the Net Prepayment Amount;
(2) the date on which such amount will be deposited or,
as the case may be, prepaid; and
20
(3) the aggregate principal amount outstanding on the
date of the relevant disposal under each Other
Financing Arrangement.
(C) The Borrower shall, from time to time, notify the Agent of each
Other Financing Arrangement within 20 Business Days after
financial closing thereof.
(D) Each of the Agent, the Security Trustee and the Account Bank is
hereby authorised by the Borrower to take all steps necessary to
facilitate the prepayment pursuant to this clause 6.4. The Agent
shall apply all of the monies representing principal standing to
the credit of the Prepayment Account together with any interest
accrued on such sum calculated up to the Business Day immediately
preceding the Prepayment Date (the "Mandatory Prepayment Amount")
in effecting a prepayment hereunder in accordance with the
following provisions of this clause 6.4.
(E) The Agent, having determined the Mandatory Prepayment Amount on
the Business Day prior to the Prepayment Date, will, subject to
the Mandatory Prepayment Amount being in excess of HK$10,000,000,
on the Prepayment Date remit to each Lender under Facility A its
proportion of such Mandatory Prepayment Amount in respect of its
participation in the Facility A Loan.
(F) In relation to any disposal of Core Business assets by any member
of the Borrower Group where such consideration is in whole or in
part for consideration other than cash, the Borrower shall
deliver to the Agent within 10 Business Days following any such
disposal, a report by an independent third party valuer
acceptable to the Agent (acting reasonably) confirming the Fair
Market Value of the assets disposed of, provided that where the
Fair Market Value of such assets is less than US$30,000,000 or
its equivalent in any other currency then a certificate signed by
a director of the Borrower as to the Fair Market Value may be
provided instead of such third party valuation.
6.5 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 Commitments (under Facility A and Facility
B) 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 Commitments (under Facility A and
Facility B) 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
21
to which such Interest Period relates.
6.6 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, the relevant Facility or (as the case may be) Facilities in
respect of which the 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 6.5, where
only the Commitment of the relevant Lender shall be reduced) in
part shall reduce the Commitment of each Lender under the
relevant Facility rateably.
(B) The Borrower may not reborrow any part of Facility A which is
prepaid.
(C) Any part of Facility B which is prepaid may be reborrowed in
accordance with the terms of this Agreement.
(D) 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.
(E) No Commitment cancelled (in whole or in part) under this
Agreement may be subsequently reinstated.
(F) 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.
6.7 Interest on Prepayment Account
(A) The Account Bank agrees to use its reasonable efforts to accrue
interest on the amounts standing to the credit of the Prepayment
Account at the best rate it is then reasonably able to obtain in
relation to such amounts.
(B) Interest on all sums standing to the credit of the Prepayment
Account shall accrue from and including the relevant date of
credit to the Prepayment Account to and excluding the relevant
date of prepayment on a daily basis and shall be calculated on
the basis of the actual number of days elapsed and a 365 day
year. The Account Bank shall promptly notify the Borrower of the
interest rate determined under this clause 6.7.
(C) Subject to no Event of Default having occurred which is
Continuing accrued interest standing to the credit of the
Prepayment Account which has not been applied in effecting a
Prepayment shall be remitted to the Borrower on the Business Day
following the relevant Prepayment Date.
22
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 (i) HIBOR and (ii) 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 ▇▇▇▇▇'▇ 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 each (or, as
the case may be, 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 an Interest Period for a Loan in a
Drawdown Notice or (if
23
such Loan is the Facility A Loan and has already been borrowed)
in a Selection Notice.
(B) Each Selection Notice is (subject to this clause 8.1(B))
irrevocable and must be delivered to the Agent by the Borrower
not later than 11:00 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 Selection 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 deliver a Selection Notice or to specify
a Fallback Period to the Agent in accordance with paragraph (B)
above, the relevant Interest 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 or
(in the case of the Facility A Loan which is already made) on the
last day of the preceding Interest Period.
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 any Interest Period, then:
24
(1) the Agent shall promptly notify the Borrower and the
Lenders accordingly giving full details of the
circumstances relevant to such notification;
(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 Date 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 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
25
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.
(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 under each Facility) a facility fee at the
rate of 0.325 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 Facility A Loan has been made, and (2) on
the day on which all Loans have been repaid in full and the Available
Facility in relation to Facility B 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 and the Security Trustee (in each
case, 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).
26
(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).
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 and the Agent.
(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 three 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 any 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;
27
(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 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 faxes 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 (i) the introduction of or any change in (or in the
interpretation or application of) any law or regulation or (ii)
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 any Facility or on
a Finance Party's (or its Affiliate's) overall capital;
28
(2) an additional or increased cost; or
(3) a reduction of any amount due and payable under any
Finance Document,
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 any of its Commitments 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
29
(2) obtaining or enforcing an order, judgment or award in
relation to any litigation or arbitration proceedings,
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
(i) the rate of exchange used to convert that Sum from the First
Currency into the Second Currency and (ii) 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;
30
(B) upon the Agent notifying the Borrower, the relevant Commitments
(under Facility A and Facility B) of that Lender will be
immediately cancelled. If a Lender's Commitments are cancelled in
accordance with the terms of this Agreement after the Agent has
received a Drawdown Notice, 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 both
Facilities 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).
31
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 any 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.
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.
32
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 (subject to all necessary
registrations of the Security Documents, if any) 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.
16.6 No Event of Default
No Event of Default has occurred which is Continuing.
33
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 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.
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.
34
16.14 No filing or stamp taxes
Save for registration of the Security Documents at the Companies
Registry within the statutorily prescribed period and payment of the
registration fees in relation thereto, 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
(A) 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).
(B) Neither the execution of any Security Document nor the
performance by or exercise of any rights of the Borrower under
the terms of any such document will result in the existence of,
or oblige the Borrower to create, any Encumbrance which is not
permitted under clause 19.3 (Negative pledge) in favour of any
person over the whole or any part of the undertaking or assets
(present or future) of the Borrower.
16.18 Repetition
There shall be deemed to be repeated:
(A) on each Drawdown Date; and
(B) 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), 16.10 (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 clause 16.7 (Financial
Statements) 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). In addition, the representations and
warranties set out in clause 16.16 (Share capital interests) shall be
repeated only on the earlier of the first Drawdown Date and the last day
of the Availability Period for Facility A, and the representations and
warranties set out in
35
clause 16.9 (No Material Adverse Change) shall be repeated only on each
Drawdown Date 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:
(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 such
quarter 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 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 member of the
Group 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 Facility 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.
36
(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) 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 member of the Borrower Group, 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
37
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:
"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 (i) any currency hedging in
relation to non-Hong Kong Dollar indebtedness by the Borrower or any
of its Subsidiaries from time to time, (ii) any issue of securities
which are mandatorily convertible into shares, (iii) its Subordinated
Indebtedness and (iv) trade payables and vendor financing.
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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.
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 Facility 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 Facility 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.
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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 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 each 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.
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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.
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 Future borrowings
In relation to any future borrowing by any Borrower Group Company, the
Borrower shall:
41
(A) and shall procure that each other Borrower Group Company shall,
only agree to any provision for mandatory prepayment on disposal
of Core Business assets in any agreement relating to such
borrowing on terms which are similar to and consistent with those
set out herein; and
(B) procure each relevant party to such future borrowing to, only
agree to and enter into 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.
19.10 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. Any merger, consolidation, demerger or reconstruction of any
other Borrower Group Company shall be deemed to be a "disposal" for
the purposes of paragraph (A) of clause 6.4 (Mandatory prepayment on
disposal of Core Business Assets) unless the continuing entity is
majority owned and controlled by the Borrower and there would be no
breach of any other provision of this Agreement.
19.11 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.
19.12 Prepayment of existing indebtedness
The Borrower shall prepay in full the two HK$5,000,000,000 term loan
facilities dated 7 March 2002 and 17 April 2002 respectively to which
it is a party as borrower on or before 25 August 2003 or, failing
which, to obtain within 14 days thereafter from all the lenders under
any such facilities which remain outstanding at such time the consent
to the amendment of "Net Prepayment Amount" (as used in such
facilities) to include (at least) the Facility A Loan so that the
relevant amount to be applied for mandatory prepayment under such loan
facilities will be used to effect prepayment of such loan facilities
and Facility A (at least) on a pro rata basis.
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.
42
(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 19.10 (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.
(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
43
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 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 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.
44
(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:
(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;
45
(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,
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
(1) in a minimum amount of HK$10,000,000 and (2) in respect of its
rights and/or obligations under both Facilities pro rata to its
Commitment under each Facility.
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.
46
(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 or the Security Trustee 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 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;
47
(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
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
48
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 (i) pursuant to clause 14.2
(Mitigation) or (ii) with prior consent of the Borrower or (iii) at
any time whilst an Event of Default is Continuing.
21.9 Confidentiality
The Borrower agrees that the Finance Parties may at any time disclose
such information relating to the Borrower and other members of the
Borrower Group as shall come into their possession whether or not in
relation to a 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
49
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.
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 AND SECURITY TRUSTEE
23.1 Appointment
(A) Appointment: Each Lender appoints:
(1) the Agent to act as its agent in connection with this
Agreement; and
(2) the Security Trustee to act as its agent and trustee in
relation to the Security Documents;
and authorises each of the Agent and the Security Trustee:
50
(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 or Security Trustee 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) in the case of the Agent, 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 and the
Security Trustee represent the Lender or the Majority Lenders (as
the case may be), and that all consents and notices given by the
Agent or the Security Trustee on their behalf are validly given.
(B) Chinese Wall: In acting as Agent or Security Trustee for the
Lenders, the respective Agent's or, as the case may be, the
Security Trustee'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 any of the Agent or Security
Trustee acts for or transacts business with any member of the
Group in any capacity in relation to any other matter (including
as a Lender under this Agreement), any information given by any
member of the Group to any of the Agent or Security Trustee in
such other capacity may be treated as confidential by the Agent
or, as the case may be, the Security Trustee.
23.2 Powers
Each of the Agent and the Security Trustee 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
(4) any right, power, authority or discretion vested in any
party or the Majority Lenders has not been exercised;
unless the Agent or, as the case may be, the Security Trustee 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
51
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 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 member of the Group without any liability to account;
(L) carry on any banking or other business with any member of the
Group without liability to account as though it were not the
Agent or the Security Trustee and without notice to or consent of
the Lenders and shall be under no obligation to provide any
information regarding any member of the Group which it receives
as a result of such activities to any other Finance Party. With
respect to its participation
52
in any Facility, the Agent and the Security Trustee 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
or the Security Trustee;
(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) procure that any investment or any part of the property charged
or assigned under the Security Documents or the proceeds thereof
is held and/or registered in the name of its nominee; and
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
Each of the Agent and the Security Trustee 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 or as Security Trustee under the
Security Documents from the Borrower;
(C) promptly following receipt of the notice referred to below,
notify each Lender of the occurrence of any Default or Event of
Default or any material breach by the Borrower in the due
performance of its obligations under this Agreement or any
Security Document which is either a default in the payment of
principal or interest of which the Agent or, as the case may be,
the Security Trustee (in its capacity as such) 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, except in circumstances
set out in clause 28.1 (Enforcement), 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 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 or the Security Trustee,
except where the words "at the request of any Lender" or
53
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 or the Security Trustee shall act
accordingly. Any requirement that such consent, decision or
determination must be reasonable or that the Agent or the Security
Trustee 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 Security Trustee, 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 Event of Default or
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 member of the Group 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) other than those expressly provided for in clause 28.2
(Recoveries to be held on trust) of this Agreement;
(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
(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
54
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 Security Trustee or the Agent as the case
may be) 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 or the Security Trustee
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 or the Security Trustee,
indemnify the Agent or, as the case may be, the Security Trustee,
against any and all fees (to the extent properly chargeable by the
Agent or, as the case may be, the Security Trustee under any Finance
Document but not promptly recovered from the Borrower), costs, claims
and expenses and liabilities which the Agent or, as the case may be,
the Security Trustee may pay or incur (otherwise than by reason of its
own gross negligence or wilful misconduct) in acting in its capacity
as agent or security trustee for the Finance Parties. The cost of
indemnifying the Agent and the Security Trustee shall be borne by the
Lenders in the proportions determined in accordance with the
definition of Majority Lenders. 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 or, as the case may
be, the Security Trustee 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 Security Trustee, 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
55
Security Trustee, the Co-ordinating Arrangers and the Lenders shall be
under no liability to any other Finance Party as a result of taking 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 Security Trustee, the Co-ordinating Arrangers or the Lenders (as the
case may be)).
23.7 No actions against individuals
Each of the Finance Parties agree 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 member
of the Group, 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
member of the Group 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 member of the Group.
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 Security Trustee, the Co-ordinating
Arrangers, the Senior Lead 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
Security Trustee, 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.
56
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 Foreign security
In relation to any Security Document governed by a law other than Hong
Kong law each Finance Party:
(A) shall execute and deliver any Security Document which, under
applicable law, cannot be entered into by the Security Trustee on
its behalf, for example, because the security constituted by the
Security Document must be entered into by it as creditor having a
pro rata claim of the claims secured thereby;
(B) grants the Security Trustee power of representation in relation
to the execution, enforcement and administration of the Security
Documents; and
(C) shall enter into such notarial deeds or other deeds or documents
as are required under any applicable law relating to the security
constituted by the Security Documents to enable the Agent and the
Security Trustee or another attorney-in-fact to execute any
Security Document on such Finance Party's behalf and administer
and enforce such security.
23.12 Security Trustee
(A) The Security Trustee hereby declares that during the period
ending on the earlier of the last day of the period of 80 years
from the date of this Agreement and the date that the Security
Trustee releases the trust property held by it unconditionally it
shall hold the trust property as trustee upon trust for the
Finance Parties from time to time and the obligations, rights and
benefits vested or to be vested in the Security Trustee by the
Finance Documents or any document entered into pursuant thereto
shall (as well after as before enforcement) be performed and (as
the case may be) exercised in accordance with this Agreement.
(B) The Borrower and each of the Finance Parties agree that the
Security Trustee shall be the joint creditor (together with the
relevant Finance Party) of each and every obligation of the
Borrower towards each of the Finance Parties under this
Agreement, and that accordingly the Security Trustee will have
its own independent right to demand performance by the Borrower
of those obligations. However, any discharge of any such
obligation to one of the Security Trustee or the relevant Finance
Party shall, to the same extent, discharge the corresponding
obligation owing to the other.
(C) Without limiting or affecting the Security Trustee's rights
(under any of the Finance Documents against the Borrower or to
act in the protection or preservation of rights under or to
enforce any Security Document or to do any act reasonably
incidental to any of the foregoing), the Security Trustee agrees
with each other Finance Party severally that it will not exercise
its rights as a joint creditor with a Finance Party.
57
23.13 Accession Deeds and Subordination Deeds
Each Lender:
(A) expressly authorises each of the Agent and/or the Security
Trustee to execute on its behalf the US$260 Million Subordinated
Loan Accession Deed and the US$450 Million Subordinated Loan
Accession Deed, 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 each of the
Agent and/or the Security Trustee 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 Facility Agent or the Security Trustee being in breach of
any of their obligations thereunder.
24. AMENDMENTS AND DECISIONS
24.1 Majority Lender decisions
Except as provided in clause 24.2 (Unanimous Consent), with the prior
written consent of the Majority Lenders, the Agent (or as the case may
be, the Security Trustee) 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 (or as the case may be, the Security Trustee) 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 (or as the case may be, the
Security Trustee) may specify in such instrument, any of the
requirements of any of the Finance Documents;
(B) the Agent (or as the case may be, the Security Trustee) may
effect, on behalf of the Majority Lenders, an amendment or waiver
to which they have agreed;
(C) the Agent (or as the case may be, the Security Trustee) may
effect, on behalf of any Finance Party, any amendment or waiver
permitted by this clause; and/or
(D) the Agent (or as the case may be, the Security Trustee) 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
(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
58
owing to any of the Lenders hereunder; or
(3) any provision relating to voluntary or mandatory
prepayment or scheduled payment of principal or interest;
or
(4) the definition of Majority Lenders or this clause; or
(5) any release of a Security Document or any amendment,
waiver, discharge or termination which would prejudice the
Lenders' position under the Security Documents; or
(6) the provisions of clause 26 (Sharing Among Lenders); or
(7) any provision which expressly requires the consent of all
the Lenders; or
(8) any condition precedent to the availability for drawing of
sums hereunder; or
(9) clause 2.2 (Finance Party's rights and obligations) or
clause 21 (Changes to the Lenders); or
(10) a change to the Borrower; or
(11) 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 amendment
shall be effective without the consent of the Agent, the
Co-ordinating Arrangers, the Lenders or as the case may be, the
Security Trustee, where any such waiver, amendment, supplement or
modification if it would otherwise amend, modify or waive any of
the rights of the Agent, the Co-ordinating Arrangers, the Lenders
or as the case may be, the Security Trustee under any of the
Finance Documents or 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 Lender 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 any of the
Agent or the Security Trustee in the negotiation, preparation and
execution of any written instrument contemplated by clause 24.1
(Majority Lender 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
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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 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 or, as the
case may be, the Security Trustee within ten Business Days of the
receipt of the Agent's Notice. If, in respect of a Lender, the Agent
or the Security Trustee, as appropriate:
(A) shall not have received written instructions in respect of such
matter from such Lender; and
(B) the Agent or the Security Trustee 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 or the Security
Trustee in respect of such matter; shall not have any rights, recourse
or remedy against the Agent or the Security Trustee 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 (or as the case may be, the Security
Trustee) and the Agent (or as the case may be, the Security Trustee)
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 (or as the case may be, the
Security Trustee) seeks its instructions in respect of the granting of
such consent.
25. RETIREMENT OF AGENT AND SECURITY TRUSTEE
25.1 Notice of resignation
Subject to this clause 25, any of the Agent or the Security Trustee
may (and, at the request of the Majority Lenders shall) give notice of
its wish to resign at any time by giving
60
at least 30 days' prior written notice to the Borrower and the other
Finance Parties and, in the case of the resignation of the Security
Trustee, any other beneficiary under the Security Documents.
25.2 Appointment of successor
If the Agent or the Security Trustee 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 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 or Security Trustee (as the case may
be) the Agent or the Security Trustee (as the case may be) 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 or Security Trustee (as the case may be)
all the rights and obligations of the retiring Agent or Security
Trustee (as the case may be), the retiring Agent or Security
Trustee (as the case may be) 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 Security
Trustee)) 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 or
Security Trustee shall be discharged if recoverable under the
provisions of this Agreement.
25.4 Transfer to Affiliates
Notwithstanding the above, the Agent and the Security Trustee may
transfer their roles to an Affiliate of the Agent and the Security
Trustee without the need to obtain the consent of the Finance Parties,
provided that the Agent and the Security Trustee give 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
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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).
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
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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 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.
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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 and the Security Trustee
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
(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. ENFORCEMENT OF SECURITY AND DISTRIBUTION OF RECOVERIES
28.1 Enforcement
The Security Trustee shall (subject to the provisions contained in
clause 23.5 (Lenders' indemnity)) to the extent practicable use all
reasonable endeavours to enforce the security constituted by the
Security Documents at the direction of the Majority Lenders, if the
Loans have been declared to be immediately due and payable by the
Agent under clause 20.2 (Acceleration) and the Agent or the Security
Trustee may in its discretion invoke the requirements of clause
23.2(G) (Powers) as a precondition to any such action.
28.2 Recoveries to be held on trust
The Security Trustee shall hold the Recoveries on trust for
distribution to the Finance Parties in accordance with the provisions
of clause 28.5 (Application of recoveries) and shall hold the security
constituted by the Security Documents on trust for the Finance Parties
to give effect to this Agreement and shall exercise its rights, powers
and duties under the Security Documents (and particularly those
concerned with the protection and enforcement of the security afforded
by such documents) and/or under this Agreement for the benefit of all
Finance Parties.
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28.3 Perpetuity period
The perpetuity period applicable to all trusts declared by this
Agreement shall be 80 years.
28.4 Payment of Taxes
Each of the Agent and the Security Trustee 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 in respect of any property
charged or assigned pursuant to the Security Documents or by virtue of
its capacity as agent or trustee or any act done by it in such
capacity. The Borrower agrees that the obligations secured by the
Security Documents will only be discharged by virtue of receipt or
recovery by the Security Trustee of monies and payments made by the
Security Trustee to the extent the relevant Finance Party actually
receives monies and payments from the Security Trustee.
28.5 Application of recoveries
All sums recovered by the Agent, the Agent, the Security Trustee or
any of the Lenders shall be applied as follows:
(A) first, to pay to the Agent and the Security Trustee the amount of
any fees due from the Borrower and in addition such sums as shall
be necessary to reimburse each of the Agent and the Security
Trustee 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 each of
them fully against any obligations or liabilities incurred by it
in its capacity as Agent and Security Trustee respectively; and
(B) second, in accordance with the provisions of clause 27.5(A).
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:
(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
65
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 or the Security Trustee shall be
deemed to have been given only on actual receipt by the Agent or
the Security Trustee respectively.
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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$)
-------------------------------------------------------- --------------------------------------------
Facility A Commitment Facility B Commitment
--------------------- ---------------------
Bank of China (Hong Kong) Limited 175,000,000 175,000,000
Barclays Bank PLC 175,000,000 175,000,000
Bayerische Landesbank, Hong Kong Branch 175,000,000 175,000,000
Hang Seng Bank Limited 175,000,000 175,000,000
Industrial and Commercial Bank of China (Asia) Limited 175,000,000 175,000,000
Standard Chartered Bank 175,000,000 175,000,000
The Bank of East Asia, Limited 175,000,000 175,000,000
The Hongkong and Shanghai Banking Corporation Limited 175,000,000 175,000,000
------------- -------------
TOTAL: 1,400,000,000 1,400,000,000
============= =============
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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 the extract of the written resolutions passed
by all the 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 and any Selection 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
resolutions referred to in paragraph (B) above.
(D) The Original Financial Statements.
(E) A certificate signed by a director of the Borrower to the effect
that :
(1) the requisite resolutions of its board of directors have
been duly and properly passed and are attached;
(2) the resolutions in paragraph (B) are still in effect and
have 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
(A) A legal opinion of Lovells, legal advisers to the Finance
Parties, addressed to the Agent (for and on behalf of itself, the
Lenders and the Security Trustee), 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.
(B) A legal opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, legal advisers to the
Borrower, addressed to the Agent (for and on behalf of itself,
the Lenders, and the Security Trustee) substantially in the form
distributed to such parties prior to signing this Agreement which
will include customary assumptions and reservations.
70
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) Bank mandate in favour of the Account Bank in respect of the
establishment and holding of the Prepayment Account duly executed
by the Borrower.
(D) Executed copies of each Finance Document (including the
Prepayment Account Charge, the US$260 Million Subordinated Loan
Accession Deed and the US$450 Million Subordinated Loan Accession
Deed (together with all ancillary documents relating thereto)).
(E) A list of Encumbrances (other than those created pursuant to the
Security Documents) 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.
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SCHEDULE 3: NOTICES
PART 1: DRAWDOWN NOTICE (clause 4.2(A))
From: PCCW-HKT Telephone Limited
To: Agent
Date: [o]
Dear Sirs
HK$2,800,000,000 Revolving Credit and Term Loan Facility Agreement dated 8th
August 2003 with PCCW-HKT Telephone Limited as borrower (the "Facility
Agreement")
We refer to the Facility Agreement (as the same may from time to time be
amended, varied, supplemented, restated or novated). Terms defined in the
Facility Agreement shall have the same meanings when used in this notice.
We:
(a) give you notice that we request for an advance under the Facility [A/B]
in an amount of HK$[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 [first] 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
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Part 2: SELECTION NOTICE (clause 8.1)
From: PCCW-HKT Telephone Limited
To: Agent
Date: [o]
Dear Sirs
HK$2,800,000,000 Revolving Credit and Term Loan Facility Agreement dated 8th
August 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, supplemented, varied, replaced, restated or novated). Terms defined in
the Facility Agreement have the same meanings when used in this notice.
1. We refer to the Facility A Loan whose current Interest Period ends on
[o].
2. We request that the next Interest Period for the Facility A Loan is
[o] [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]*.
3. This Selection Notice is irrevocable and is governed by Hong Kong law.
Yours faithfully
For and on behalf of
PCCW-HKT Telephone Limited
........................................
Name:
Title:
* delete as appropriate
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SCHEDULE 4: FORM OF TRANSFER CERTIFICATE (clause 21.5)
To: The Hongkong and Shanghai Banking Corporation Limited as Agent
From: [The Existing Lender] (the "Existing Lender") and [The New Lender]
(the "New Lender")
Date: [o]
Dear Sirs
HK$2,800,000,000 Revolving Credit and Term Loan Facility Agreement dated 8th
August 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 Commitments, 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.
74
THE SCHEDULE
Details of Participation to be transferred
Transfer Details :
Nature : Facility A Loan and Facility B Loan(s)
Final Maturity : [o]
Interest Period : [o]
Participation Transferred
Commitments 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
[Agent]
75
SCHEDULE 5: FORM OF ASSIGNEE'S UNDERTAKING (clause 21.2(A))
To: (1) The Hongkong and Shanghai Banking Corporation Limited (as Agent)
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▇▇▇▇▇▇▇▇▇: HSBC Agency Department
(2) PCCW-HKT Telephone Limited
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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 8th August 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 The Hongkong
and Shanghai Banking Corporation Limited as Agent and Security Trustee. Terms
defined in the Agreement shall have the same meanings in this Assignee's
Undertaking.
[*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.
1. 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].
2. 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.
3. 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.
76
4. 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.
5. 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.
6. 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.
7. 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.
77
SCHEDULE TO ASSIGNEE'S UNDERTAKING
Details of Participation to be assigned
Assignment Details :
Nature : Facility A Loan and Facility B Loan(s)
Final Maturity : [o]
Interest Period : [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*]
78
SCHEDULE 6: FORM OF CONFIDENTIALITY UNDERTAKING (clause 21.9)
PCCW-HKT Telephone Limited
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Attention: Company Secretary
Date: [o]
Dear Sirs
HK$2,800,000,000 Revolving Credit and Term Loan Facility Agreement dated 8th
August 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 Facilities 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.
79
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]
80
SCHEDULE 7: FORM OF COMPLIANCE CERTIFICATE (clause 17.2(D))
To: THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED
(as Agent for the Finance Parties
participating in the agreement
referred to below)
Date: [o]
HK$2,800,000,000 Revolving Credit and Term Loan Facility Agreement dated 8th
August 2003 with PCCW-HKT Telephone Limited as borrower (the "Facility
Agreement")
We refer to the Facility Agreement (as the same may from time to time be
amended, varied, supplemented, restated or novated). Terms defined in the
Facility Agreement shall have the same meanings when used in this certificate.
Terms and expression defined in the Facility Agreement shall bear the same
meaning herein.
Financial Covenants
We confirm that, in respect of the Relevant Period [o] to [o]:
(A) EBITDA was HK$[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
81
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
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Facsimile No: (▇▇▇) ▇▇▇▇ ▇▇▇▇ (copy (▇▇▇) ▇▇▇▇ ▇▇▇▇)
Attention: Company Secretary / Group Treasurer
By: w. ▇▇▇▇▇▇▇ ▇▇▇▇▇ (Sd) W. ▇▇▇▇▇▇▇ ▇▇▇▇▇
THE CO-ORDINATING ARRANGERS AND THE LENDERS
BANK OF CHINA (HONG KONG) LIMITED
17/F, Bank of China Centre
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Facsimile No: (▇▇▇) ▇▇▇▇ ▇▇▇▇ (copy (▇▇▇) ▇▇▇▇ ▇▇▇▇)
Attention: ▇▇▇▇▇ ▇▇▇▇ / ▇▇▇▇▇▇▇ Man / ▇▇▇▇▇ ▇▇
By: ▇▇▇▇ ▇▇▇ Po (Sd) ▇▇▇▇ ▇▇▇ Po
82
BARCLAYS CAPITAL
as Co-ordinating Arranger
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Facsimile No: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attention: Head of Loan Operations
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇ (Sd) ▇▇▇▇▇ ▇▇▇▇▇▇▇
BARCLAYS BANK PLC
as Lender
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Facsimile No: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attention: Head of Loan Operations
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇ (Sd) ▇▇▇▇▇ ▇▇▇▇▇▇▇
BAYERISCHE LANDESBANK, HONG KONG BRANCH
19/F, Standard Chartered Bank ▇▇▇▇▇▇▇▇
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Facsimile No: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇ / ▇▇▇▇▇ ▇▇▇▇
By: Paul C. M. Au (Sd) Paul C. M. Au
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83
HANG SENG BANK LIMITED
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33 ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
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Facsimile No: (▇▇▇) ▇▇▇▇ ▇▇▇▇ / 2804 6880
Attention: Corporate Credit Administration Dept
By: Y.T. Ng.. (Sd) Y.T. Ng
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INDUSTRIAL AND COMMERCIAL BANK OF CHINA (ASIA) LIMITED
10/F, ▇▇▇-▇▇▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇
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Facsimile No: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇ / ▇▇▇ ▇▇▇▇
Loans Processing Department
By: ▇▇▇▇▇▇ ▇▇▇ (Sd) ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ (Sd) ▇▇▇▇ ▇▇▇▇
STANDARD CHARTERED BANK
14/F, Standard Chartered Bank ▇▇▇▇▇▇▇▇
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Facsimile No: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇ / ▇▇▇▇▇ ▇▇▇
By: ▇▇▇▇▇ ▇▇▇▇ Oei (Sd) ▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇ T.H. ▇▇▇▇ (Sd) ▇▇▇▇ T.H. Chan
84
THE BANK OF EAST ASIA, LIMITED
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Facsimile No: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇ / ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Corporate Lending & Syndication Department
Corporate Banking Division
By: ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇ (Sd) ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇ (Sd) ▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇
THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED
Hongs Division Corporate Banking
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Facsimile No: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ / ▇▇▇▇▇ ▇▇▇
By: ▇▇▇▇▇ ▇▇▇▇ (Sd) ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ (Sd) ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇
THE AGENT AND THE SECURITY TRUSTEE
THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED
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Facsimile No: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attention: Debt Finance, Support & Agency Services
By: ▇▇▇▇▇ ▇▇▇ (Sd) ▇▇▇▇▇ ▇▇▇
85