EXHIBIT 4(hh)
DATED: 29 OCTOBER 2003
Amendment Agreement
between
PCCW-HKT Telephone Limited
as Borrower
and
The Hongkong and Shanghai Banking Corporation Limited
as Agent
relating to
a HK$2,800,000,000 Revolving Credit and Term Loan
Facility Agreement dated 8 August 2003
Simmons&Simmons
35th Floor ▇▇▇▇▇▇ Kong Center ▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
T (▇▇▇) ▇▇▇▇ ▇▇▇▇ F (▇▇▇) ▇▇▇▇ ▇▇▇▇ DX 009121 Central 1
CONTENTS
1. INTERPRETATION..........................................................1
2. AMENDMENTS..............................................................2
3. RELEASE OF SECURITY.....................................................4
4. CONDITION PRECEDENT.....................................................4
5. CONTINUING EFFECT.......................................................4
6. REPRESENTATIONS.........................................................4
7. MISCELLANEOUS...........................................................4
8. LAW.....................................................................5
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THIS AMENDMENT AGREEMENT is dated 29 October 2003 and made
BETWEEN:
(1) PCCW-HKT TELEPHONE LIMITED, (the "Borrower"), a company incorporated
in Hong Kong with company number 676.
(2) THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED, (the "Agent"),
as agent for the other Finance Parties and on its own behalf.
Background:
(A) On 8 August 2003 the Borrower, various financial institutions listed as
Co-ordinating Arrangers and/or Lenders, and The Hongkong and Shanghai
Banking Corporation Limited as Agent and Security Trustee entered into
an agreement (the "Facility Agreement") under which the Lenders made a
HK$2,800,000,000 revolving credit and term loan facility available to
the Borrower.
(B) The Borrower requires each Facility to be made available on a revolving
basis and has requested that the Facility Agreement be amended to permit
this.
(C) By clause 24 (Amendments and decisions) of the Facility Agreement the
Agent, with the prior written consent of the Majority Lenders or, in
certain circumstances, all the Lenders, may enter into written
amendments to the Facility Agreement.
(D) The Agent (acting on the instructions of all the Lenders) and the
Borrower have now agreed to amend the Facility Agreement in the
following manner.
IN CONSIDERATION of the foregoing, the mutual covenants and agreements
contained in this Agreement, and other valuable consideration, the receipt and
adequacy of which are hereby acknowledged, IT IS AGREED as follows:
1. INTERPRETATION
1.1 Other definitions
Terms defined and aids to construction used in the Facility Agreement
will bear the same meaning or construction when used in this Agreement
unless the context otherwise requires.
1.2 References
In this Agreement, each reference to:-
any person (including the Agent and the Borrower) where the context so
admits, is deemed to include a reference to its successors, assigns
and/or transferees;
any document or agreement (including this Agreement) is deemed to
include a reference to such document or agreement as amended, novated,
supplemented, substituted or replaced from time to time; and
the singular, where the context so admits, is deemed to include the
plural and vice versa.
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1.3 Titles
The title of any provision of this Agreement shall not affect the
meaning of that or any other provision.
2. AMENDMENTS
With effect from the date of this Agreement the Facility Agreement
shall be read and construed as if:
2.1 all references in the Facility Agreement to "this Agreement" and such
words as "herein" and "hereunder" were references to the Facility
Agreement as amended by this Agreement; and
2.2 the following applied:
(A) The definition of "Final Repayment Date" in clause 1.1 were
deleted in its entirety and replaced by the following new
definition:
"Final Repayment Date" means the date falling 84 Months after the
earlier of the date on which the first Loan is advanced and the
date falling 3 Months after the date of this Agreement.
(B) The definitions of "Total Facility A Commitments" and "Total
Facility B Commitments" in clause 1.1 were deleted in their
entirety and replaced by the following new definitions:
"Total Facility A Commitments" means the aggregate of the
Facility A Commitments, being HK$0 at the date of this Agreement.
"Total Facility B Commitments" means the aggregate of the
Facility B Commitments, being HK$2,800,000,000 at the date of
this Agreement.
(C) Clause 6.4 (Mandatory Prepayment on disposal of Core Business
Assets) were deleted in its entirety, and as a consequence
thereof the following were also deleted in their entirety:
(1) the definitions of "Account Bank", "Prepayment Account",
Prepayment Account Charge" and "Prepayment Date";
(2) all references to such defined terms where used in the
Facility Agreement; and
(3) clause 6.7 (Interest on Prepayment Account),
and, in each case, such additional consequential amendments were
made as required to give sense to the remaining provisions.
(D) Clause 10.1 were deleted in its entirety and replaced by the
following new clause 10.1:
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10.1 Facility fee
The Borrower shall pay to the Agent (for the account of
each Lender in respect of its Commitment under each
Facility) a facility fee at the rate of 0.325 per cent.
per annum and calculated on the amount of the Total
Commitments from time to time, such fee to be payable (1)
quarterly in arrears, with the first payment being made on
the day falling 3 months after the date of this Agreement,
and (2) on the day on which all Loans have been repaid in
full and the Available Facility in relation to Facility B
is cancelled and reduced to zero.
(E) Clause 16.18 were amended by the deletion of "the representations
and warranties set out in clause 16.16 (Share capital interests)
shall be repeated only on the earlier of the first Drawdown Date
and the last day of the Availability Period for Facility A, and".
(F) Schedule 1 were deleted in its entirety and replaced by the
following new Schedule 1:
SCHEDULE 1: THE LENDERS
------------------------------------------------------------------------------------
Name of Lenders Commitment (HK$)
------------------------------------------------------------------------------------
Facility A Facility B
Commitment Commitment
---------- -------------
Bank of China (Hong Kong) Limited 0 350,000,000
Bayerische Landesbank, Hong Kong Branch 0 350,000,000
Hang Seng Bank Limited 0 350,000,000
Industrial and Commercial Bank of China (Asia) Limited 0 350,000,000
Standard Chartered Bank 0 350,000,000
The Bank of East Asia, Limited 0 350,000,000
The Hongkong and Shanghai Banking Corporation Limited 0 350,000,000
Barclays Bank PLC 0 290,000,000
Industrial and Commercial International Capital Ltd 0 60,000,000
---------- =============
TOTAL: 0 2,800,000,000
========== =============
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3. RELEASE OF SECURITY
Due to the deletions referred to in clause 2.2(C) above, the Security
Trustee shall promptly after the date of this Agreement deliver to the
Borrower (1) the original Prepayment Account Charge, (2) a duly
executed release of the security interest created thereby and (3) such
other documents and things as the Borrower may reasonably require to
perfect the release of the security interest created by the Prepayment
Account Charge.
4. CONDITION PRECEDENT
This Agreement shall not be effective unless and until the Agent has
received:
4.1 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; and
4.2 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.
5. CONTINUING EFFECT
5.1 Except as amended by this Agreement, the provisions of the Finance
Documents and the respective rights and obligations of the parties
under them will remain in full force and effect.
5.2 This Agreement does not affect the respective rights, duties or
obligations of any of the parties under the Finance Documents arising
prior to the date of this Agreement.
5.3 This Agreement shall be a Finance Document under the Facility Agreement.
6. REPRESENTATIONS
The Borrower represents and warrants to the Agent that as at the date
of this Agreement:
6.1 the representations and warranties set out 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), 16.12 (Governing law and enforcement) and
16.14 (No filing or stamp taxes) of the Facility Agreement would be
true and accurate if repeated mutatis mutandis in this Agreement with
reference to this Agreement instead of the Facility Agreement or the
Finance Documents; and
6.2 the representations and warranties set out in clause 16
(Representations and Warranties) of the Facility Agreement are true
and accurate.
7. MISCELLANEOUS
The provisions of clauses 31 (Notices), 33 (Partial Invalidity), 35
(Counterparts) and 37 (Enforcement) of the Facility Agreement will
apply mutatis mutandis to this Agreement as if references in such
clauses to the Facility Agreement or the Finance Documents were
references to this Agreement.
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8. LAW
This Agreement is governed by and will be construed in accordance with
Hong Kong law.
AS WITNESS the hands of the duly authorised representatives of the parties on
the date first above written.
The Borrower
PCCW-HKT TELEPHONE LIMITED
By:
The Agent
THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED
By:
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