AMENDED AND RESTATED FACILITY AGREEMENT DATED 4 JUNE 2019 US$150,000,000

Clause

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Schedules

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Signatories

THE COMPANIES listed in Schedule 1 (Original Parties) as borrowers (each in this capacity a Borrower and together the Borrowers);

THE COMPANIES listed in Schedule 1 (Original Parties) as original guarantors (each in this capacity an Original Guarantor and together the Original Guarantors);

THE FINANCIAL INSTITUTIONS listed in Schedule 1 (Original Parties) as original lenders (each in this capacity an Original Lender and together the Original Lenders);

THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED as arranger (in this capacity the Arranger);

THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED as facility agent (in this capacity the Facility Agent);

THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED as security trustee (in this capacity the Security Trustee); and

THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED as issuing bank (in this capacity the Issuing Bank).

INTERPRETATION

Definitions

the sales report;

the receipt voucher;

the credit note report; and

the credit / debit adjustment report.

for the Tranche A Facility, the period from and including the date of this Agreement to and including the date falling one month prior to the Final Maturity Date; and

for the L/C Facility, the period from and including the date of this Agreement to and including the date falling one Business Day prior to the Final Maturity Date.

the Total Tranche A Commitments; and

the Borrowing Base as calculated in the latest Collateral Report received by the Facility Agent in accordance with Subclause 4.1 (Initial Conditions precedent documents) (or if later, the latest Collateral Report received by the Facility Agent in accordance with Subclause 20.4 (Collateral Report).

the aggregate amount outstanding under the Tranche A Facility;

the undrawn amount of outstanding under the L/C Facility; and

unreimbursed drawings in respect of the L/C Facility,

the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;

the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and

any regulation published by the Bank for International Settlements, the Basel Committee on Banking Supervision and any other Governmental Agency relating to “Basel III”.

(in relation to any date for payment or purchase of euro), any TARGET Day; or

(in relation to any date for payment or purchase of a currency other than euro) the principal financial centre of the country of that currency.

an Event of Default; or

an event or circumstance which would be (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 them) an Event of Default.

a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party from:

performing its payment obligations under the Finance Documents; or

communicating with other Parties in accordance with the terms of the Finance Documents,

which is not subject to a first priority perfected security interest in favour of a Lender;

which is subject to any Security Interest other than as contemplated by the Finance Documents;

(i) which is unpaid more than 60 days after the original due date therefor or has a credit term of more than 120 days after the date of the original invoice therefor (ii) which has been written off the books of the Obligors or otherwise designated as uncollectible (in determining the aggregate amount from the same Account Debtor that is unpaid hereunder there shall be excluded the amount of any net credit balances relating to Accounts due from such Account Debtor which are unpaid more than 60 days from the original due date or has a credit term of more than 120 days after the date of the original invoice therefor);

which is owing by an Account Debtor for which more than 35% of the Accounts owing from such Account Debtor and its Affiliates are ineligible pursuant to paragraph (c) above;

with respect to which any covenant, representation or warranty contained a Finance Document has been breached or is not true in any material respect;

which (i) does not arise from the sale of goods or performance of services in the ordinary course of business, (ii) is not evidenced by an invoice or other documentation satisfactory to the Facility Agent (acting on the instructions of the Majority Lenders and following (to the extent practicable) reasonable prior notice to, and consultation with, the Borrowers) which has been sent to the Account Debtor, (iii) represents a progress billing, (iv) is contingent upon an Obligor’s completion of any further performance, (v) represents a sale on a ▇▇▇▇-and-hold, guaranteed sale, sale-and-return, sale on approval, consignment, cash-on-delivery or any other repurchase or return basis or (vi) relates to payments of interest;

(i) for which the goods giving rise to such Account have not been shipped to the Account Debtor or for which the services giving rise to such Account have not been performed by an Obligor or if such Account was invoiced more than once or (ii) for which the goods giving rise to such Account have been shipped to the Account Debtor by FOB shipment and such goods have not yet been received by the Account Debtor;

with respect to which any check or other instrument of payment has been returned uncollected for any reason;

which is owed by an Account Debtor in respect of which any of the events in Subclauses 23.6 (Insolvency) to 23.8 (Creditors’ process) has occurred;

which is owed by any Account Debtor which has sold all or substantially all of its assets;

which is owed in any currency other than US Dollars, RMB or EUR or any other currency agreed between the Borrowers and the Facility Agent (acting on the instructions of the Majority Lenders);

which is owed by any Affiliate of any Obligor or any employee, officer, director, agent or stockholder of any Obligor or any of its Affiliates;

which is owed by an Account Debtor or any Affiliate of such Account Debtor to which any Obligor is indebted, but only to the extent of such indebtedness, or is subject to any security, deposit, progress payment, retainage or other similar advance made by or for the benefit of an Account Debtor, in each case to the extent thereof;

which is subject to any counterclaim, deduction, defence, set-off or dispute but only to the extent of any such counterclaim, deduction, defence, set-off or dispute;

which is evidenced by any promissory note, chattel paper or instrument (other than banker’s acceptances or trade acceptances);

which is owed by an Account Debtor (i) located in any jurisdiction which requires filing of a “Notice of Business Activities Report” or other similar report in order to permit the applicable Obligor to seek judicial enforcement in such jurisdiction of payment of such Account, unless the applicable Obligor has filed such report or qualified to do business in such jurisdiction or (ii) which is a Restricted Party;

with respect to which any Obligor has made any agreement with the Account Debtor for any reduction thereof, other than discounts and adjustments given in the ordinary course of business, or any Account which was partially paid and the applicable Obligor created a new receivable for the unpaid portion of such Account;

which does not comply in all material respects with the requirements of all applicable laws and regulations;

which is for goods that have been sold under a purchase order or pursuant to the terms of a contract or other agreement or understanding (written or oral) that indicates or purports that any person other than an Obligor has or has had an ownership interest in such goods, or which indicates any party other than an Obligor as payee or remittance party;

which was created on cash on delivery terms;

which the Majority Lenders determine in its Permitted Discretion (following (to the extent practicable) reasonable prior notice to, and consultation with, the Borrowers) may not be paid by reason of the Account Debtor’s inability to pay; or

which is owing by an Account Debtor and its Affiliates to the extent the aggregate amount of the Accounts owing from such Account Debtor and its Affiliates to the Obligors exceeds 35% of the aggregate Eligible Accounts.

the pollution or protection of the environment;

the harm to or the protection of human health;

the conditions of the workplace; or

any emission or substance capable of causing harm to any living organism or the environment.

on or before the date it becomes a Lender; or

by not less than five Business Days’ notice,

sections 1471 to 1474 of the Code or any associated regulations;

any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or

any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.

this Agreement;

a Security Document;

a Fee Letter;

a Transfer Certificate;

an Accession Agreement;

a Resignation Request (if any); or

any other document designated as such by the Facility Agent and the Borrowers.

a Lender or an Administrative Party; or

a derivative transaction counterparty which the Facility Agent (acting on the instructions of the Majority Lenders) and the Borrowers designate as such for the purpose of paragraph (d) of Clause 22.5 (Negative pledge).

moneys borrowed;

any amount raised by acceptance under any acceptance credit facility;

any bond, note, debenture, loan stock or other similar instrument;

any redeemable preference share;

any agreement treated as a finance or capital lease in accordance with GAAP;

receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);

the acquisition cost of any asset or service to the extent payable before or after its acquisition or possession by the party liable where the advance or deferred payment:

is arranged primarily as a method of raising finance or of financing the acquisition of that asset or service or the construction of that asset or service; or

involves a period of more than six months before or after the date of acquisition or supply;

any derivative transaction protecting against or benefiting from fluctuations in any rate or price (and, except for non-payment of an amount, the then ▇▇▇▇-to-market value of the derivative transaction will be used to calculate its amount);

any other transaction (including any forward sale or purchase agreement) which has the commercial effect of a borrowing;

any counter-indemnity obligation in respect of any guarantee, indemnity, bond, letter of credit or any other instrument issued by a bank or financial institution; or

any guarantee, indemnity or similar assurance against financial loss of any person in respect of any item referred to in the above paragraphs.

each period when a Specified Event of Default shall have occurred and be continuing; and/or

each period beginning on the fifth consecutive Business Day on which the Available ABL Commitment is less than 12.5% of the ABL Commitments,

an additional or increased cost;

a reduction in the rate of return from a Facility or on a Finance Party’s (or its Affiliate’s) overall capital; or

a reduction of an amount due and payable under any Finance Document,

by reference to which interest on a Loan or an overdue amount is calculated; or

for which the Issuing Bank may be under a liability under a Letter of Credit.

the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and

the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,

for the Original Lenders, the amount set opposite its name in Schedule 1 (Original Parties) under the heading L/C Commitments and the amount of any other L/C Commitment it acquires; and

for any other Lender, the amount of any other L/C Commitment it acquires,

any Original Lender; or

any person which becomes a Party in accordance with Subclause 31.2 (Assignments and transfers by Lenders).

the applicable Screen Rate at the Specified Time (or such other time or day as determined by the Facility Agent if the market practice differs); or

as otherwise determined pursuant to Clause 13.1 (Unavailability of Screen Rate),

whose share in the outstanding Credits then aggregate 66²/₃ per cent. or more of the aggregate of all the outstanding Credits;

if there is no Credit then outstanding, whose undrawn Commitments then aggregate 66²/₃ per cent. or more of the ABL Commitments; or

if there is no Credit then outstanding and the ABL Commitments have been reduced to zero, whose Commitments aggregated 66²/₃ per cent. or more of the ABL Commitments immediately before the reduction.

the business, operations, property, condition (financial or otherwise) or prospects of any member of the Group or the Group as a whole;

the validity or enforceability of, or the effectiveness or ranking of any Security Interest granted or purported to be granted pursuant to, any Finance Document; or

any right or remedy of a Finance Party in respect of a Finance Document.

subject to paragraph (b) below:

the contribution of a Subsidiary of the Company will be determined from its financial statements which were consolidated into the latest audited consolidated financial statements of the Company; and

the financial condition of the Group will be determined from the latest audited consolidated financial statements of the Company;

if a Subsidiary of the Company becomes a member of the Group after the date on which the latest audited consolidated financial statements of the Company were prepared:

the contribution of the Subsidiary will be determined from its latest financial statements; and

the financial condition of the Group will be determined from the latest audited consolidated financial statements of the Company but adjusted to take into account any subsequent acquisition or disposal of a business or a company (including that Subsidiary);

the contribution of a Subsidiary will, if it has Subsidiaries, be determined from its consolidated financial statements;

if a Material Subsidiary disposes of all or substantially all of its assets to another member of the Group, it will immediately cease to be a Material Subsidiary and the other member of the Group (if it is not the Company or already a Material Subsidiary) will immediately become a Material Subsidiary;

a Subsidiary of the Company (if it is not already a Material Subsidiary) will become a Material Subsidiary on completion of any other intra-Group transfer or reorganisation if it would have been a Material Subsidiary had the intra-Group transfer or reorganisation occurred on the date of the latest audited consolidated financial statements of the Company; and

except as specifically mentioned in paragraph (d) above, a member of the Group will remain a Material Subsidiary until the next audited consolidated financial statements of the Company show otherwise under paragraph (a) above.

any moneys borrowed from; or

any transaction which has the commercial effect of a borrowing entered into with,

the USD account held with The Hongkong and Shanghai Banking Corporation Limited in the name of OPC, account number: ▇▇▇-▇▇▇▇▇▇-▇▇▇, which OPC has charged (by way of first fixed charge) in favour of the Security Trustee as agent and trustee for the Secured Creditors as pursuant to the OPC Bank Account Charge;

the EUR account held with The Hongkong and Shanghai Banking Corporation Limited in the name of OPC, account number: ▇▇▇-▇▇▇▇▇▇-▇▇▇, which OPC has charged (by way of first fixed charge) in favour of the Security Trustee as agent and trustee for the Secured Creditors as pursuant to the OPC Bank Account Charge; and

each other account with any bank, financial institution or other person in any jurisdiction which OPC purports to charge under the OPC Bank Account Charge,

if there is a change of Account Bank, any account into which all or part of a credit balance from such account is transferred;

any sub-account or sub-division thereof; and

any account which is a successor to such account on any re-numbering or re-designation, renewal or replacement of accounts and any account into which all or any part of a credit balance of such account is transferred for investment or other administrative purposes.

audited consolidated financial statements of the Parent for the three most recently completed fiscal years ended at least 90 days before the date of this Agreement;

unaudited consolidated financial statements of the Parent for each subsequent fiscal quarter ended (that is not a fiscal year-end) at least 45 days before the date of this Agreement; and

a pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Parent as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the date of this Agreement, prepared after giving effect to the transactions contemplated by the Finance Documents as if those Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income).

for the purpose of determining a Lender’s share in a utilisation of a Facility, the proportion which its Commitment under that Facility bears to all the Commitments under that Facility; and

for any other purpose on a particular date:

the proportion which a Lender’s share of the Credits (if any) bears to all the Credits;

if there is no Credit outstanding on that date, the proportion which its Commitment bears to the ABL Commitments on that date;

if the ABL Commitments have been cancelled, the proportion which its Commitments bore to the ABL Commitments immediately before being cancelled; or

when the term is used in relation to a Facility, the above proportions but applied only to the Credits and Commitments for that Facility.

if the Reference Bank is a contributor to the Screen Rate and it consists of a single figure, the rate (if any and applied to the relevant Reference Bank and the relevant currency and period) which contributors to the Screen Rate are asked to submit to the relevant administrator; or

in any other case, the rate at which the relevant Reference Bank could fund itself in the relevant currency for the relevant period with reference to the unsecured wholesale funding market.

listed on, or owned or controlled by a person listed on, or acting on behalf of a person listed on, any Sanctions List;

located in, incorporated under the laws of, or owned or (directly or indirectly) controlled by, or acting on behalf of, a person located in or organised under the laws of a country or territory that is the target of country-wide or territory-wide Sanctions; or

otherwise a target of Sanctions (“target of Sanctions” signifying a person with whom a US person or other national of a Sanctions Authority would be prohibited or restricted by law from engaging in trade, business or other activities).

to be made on the same day that a maturing Tranche A Loan is due to be repaid;

the aggregate amount of which is equal to or less than the maturing Loan or claim; and

to be made to a Borrower for the purpose of refinancing a maturing Tranche A Loan.

the United States government;

the United Nations;

the European Union;

the United Kingdom; and

the respective governmental institutions and agencies of any of the foregoing, including, without limitation, the Sanctions Authorities.

the OPC Security Assignment;

the OPC Bank Account Charge;

the TTMT Security Assignment; or

the TTMT Bank Account Charge.

each Security Agreement; or

any other document evidencing or creating security over any asset (present or future) of an Obligor to secure any obligation of any Obligor to a Secured Creditor under the Finance Documents.

which is controlled, directly or indirectly, by that person; or

more than half the issued share capital of which is beneficially owned, directly or indirectly by that person; or

which is a Subsidiary of another Subsidiary of that person,

for each of the Original Lenders, the amount set opposite its name in Schedule 1 (Original Parties) under the heading “Tranche A Commitments” and the amount of any other Tranche A Commitment it acquires; and

for any other Lender, the amount of any other Tranche A Commitment it acquires,

for a transfer by assignment, assumption and release, a certificate substantially in the form of Part 1 of Schedule 4 (Forms of Transfer Certificate), and

for a transfer by novation, a certificate substantially in the form of 0 of Schedule 4 (Forms of Transfer Certificate),

the USD account held with The Hongkong and Shanghai Banking Corporation Limited in the name of TTMT, account number: ▇▇▇-▇▇▇▇▇▇-▇▇▇, which TTMT has charged (by way of first fixed charge) in favour of the Security Trustee as agent and trustee for the Secured Creditors as pursuant to the TTMT Bank Account Charge;

the EUR account held with The Hongkong and Shanghai Banking Corporation Limited in the name of TTMT, account number: ▇▇▇-▇▇▇▇▇▇-▇▇▇, which TTMT has charged (by way of first fixed charge) in favour of the Security Trustee as agent and trustee for the Secured Creditors as pursuant to the TTMT Bank Account Charge; and

each other account with any bank, financial institution or other person in any jurisdiction which TTMT purports to charge under the TTMT Bank Account Charge,

if there is a change of Account Bank, any account into which all or part of a credit balance from such account is transferred;

any sub-account or sub-division thereof; and

any account which is a successor to such account on any re-numbering or re-designation, renewal or replacement of accounts and any account into which all or any part of a credit balance of such account is transferred for investment or other administrative purposes.

an Obligor which is resident for tax purposes in the US; or

an Obligor some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.

Construction

In this Agreement, unless the contrary intention appears, a reference to:

an amendment includes a supplement, novation, extension (whether of maturity or otherwise), restatement, re-enactment or replacement (however fundamental and whether or not more onerous) and amended will be construed accordingly;

assets includes properties, revenues and rights of every description;

an authorisation includes an authorisation, consent, approval, resolution, permit, licence, exemption, filing, registration or notarisation;

disposal means a sale, transfer, assignment, grant, lease, licence, declaration of trust or other disposal, whether voluntary or involuntary, and dispose will be construed accordingly;

indebtedness includes any obligation (whether incurred as principal or as surety and whether present or future, actual or contingent) for the payment or repayment of money;

customer due diligence requirements are to the identification checks that a Finance Party requests in order to meet its obligations under any applicable law or regulation to identify a person who is (or is to become) its customer;

a person includes any individual, company, corporation, unincorporated association or body (including a partnership, trust, fund, joint venture or consortium), government, state, agency, organisation or other entity whether or not having separate legal personality;

a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but, if not having the force of law, being of a type with which any person to which it applies is accustomed to comply) of any governmental, inter-governmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;

a currency is a reference to the lawful currency for the time being of the relevant country;

a Default being outstanding means that it has not been remedied or waived;

a provision of law is a reference to that provision as extended, applied, amended or re-enacted and includes any subordinate legislation;

a Clause, a Subclause or a Schedule is a reference to a clause or subclause of, or a schedule to, this Agreement;

a Party or any other person includes its successors in title, permitted assigns and permitted transferees;

a Finance Document or other document or security includes (without prejudice to any prohibition on amendments) any amendment to that Finance Document or other document or security, including any change in the purpose of, any extension for or any increase in the amount of a facility or any additional facility; and

a time of day is a reference to Hong Kong time.

Unless the contrary intention appears, a reference to a month or months is a reference to a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month or the calendar month in which it is to end, except that:

if the numerically corresponding day is not a Business Day, the period will end on the next Business Day in that month (if there is one) or the preceding Business Day (if there is not);

if there is no numerically corresponding day in that month, that period will end on the last Business Day in that month; and

notwithstanding subparagraph (i) above, a period which commences on the last Business Day of a month will end on the last Business Day in the next month or the calendar month in which it is to end, as appropriate.

Unless the contrary intention appears:

a reference to a Party will not include that Party if it has ceased to be a Party under this Agreement;

a word or expression used in any other Finance Document or in any notice given in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement; and

any obligation of an Obligor under the Finance Documents which is not a payment obligation remains in force for so long as any payment obligation of an Obligor is, may be or is capable of becoming outstanding under the Finance Documents.

The headings in this Agreement do not affect its interpretation.

Third party rights

Amendment and Restatement of the Original Facility Agreement

Acknowledgment and confirmation

an amount of US$30,000,000 is outstanding under the Tranche A Facility (“Rollover Loan”) as at the date of this Agreement; and

an irrevocable deemed request (“Deemed Request”) will be given in respect of the Rollover Loan for the first rollover such that a Request in the form of Schedule 3 (“Form of Request”) will not be required, and the Facility Agent shall, in acting under this Agreement, treat such Deemed Request as if it is a Request.

Joint and several liability

FACILITIES

Tranche A Facility

L/C Facility

Increase to Total Tranche A Commitments

The Borrowers may, by written notice to the Facility Agent, request that the Total Tranche A Commitments be increased by a maximum aggregate amount of US$50,000,000 (“Increased Commitment”).

The Increased Commitment shall be assumed by one or more of the Lenders each of which confirms in writing in its absolute discretion (“Increase Confirmation”) its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the Increased Commitment which it is to assume.

For the avoidance of doubt, a Lender has the sole discretion (which shall not be withheld unreasonably) on whether to accept such request and the date the Increased Commitment shall take effect, taking into account the prevailing market conditions on or around the date on which the written request in Clause 2.3(a) is provided by or on behalf of the Borrowers. If no Lender provides an Increase Confirmation, the request for the Increased Commitment shall be deemed lapsed after ten Business Days of the service of such request to the Facility Agent.

No Borrower may request an increase to the Total Tranche A Commitments on or after the day falling three calendar months before the Final Maturity Date.

Nature of a Finance Party’s rights and obligations

the obligations of a Finance Party under the Finance Documents are several;

failure by a Finance Party to perform its obligations does not affect the obligations of any other person under the Finance Documents;

no Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents;

the rights of a Finance Party under the Finance Documents are separate and independent rights;

a Finance Party may, except as otherwise stated in the Finance Documents, separately enforce those rights; and

a debt arising under the Finance Documents to a Finance Party is a separate and independent debt.

PURPOSE

The Facility

towards financing the Group’s working capital and capital investment requirements and for the Group’s general corporate purposes (including the payment of intercompany debt in compliance with all applicable laws and regulations); and

towards supporting Letters of Credit.

No obligation to monitor

CONDITIONS PRECEDENT

Initial Conditions precedent documents

A Lender will only be obliged to comply with Clause 5.3 (Advance of Loan) in relation to a Loan if on or before the Utilisation Date for that Loan, the Facility Agent has received (or waived receipt of) all of the documents and evidence listed in and appearing to comply with Part 1 (To be delivered before the first Request) of Schedule 2 (Conditions Precedent Documents). The Facility Agent shall notify the Borrower, the Issuing Bank and each Lender promptly upon receiving such documents and evidence.

Other than to the extent that the Majority Lenders notify the Facility Agent in writing to the contrary before the Facility Agent gives the notification described in paragraph (a) above, the Lenders authorise (but do not require) the Facility Agent to give that notification. The Facility Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.

Further conditions precedent

on both the date of the Request and the Utilisation Date for that Credit:

the Repeating Representations are correct in all material respects; and

no Default or, in the case of a Rollover Loan, no Event of Default is outstanding or would result from such Credit; and

after giving effect to the funding of the proposed Credit and any repayments of a Credit on the relevant Utilisation Date from the proceeds of the proposed Credit, the aggregate amount outstanding under the Facility will not exceed the Available ABL Commitment.

Maximum number

UTILISATION—LOANS

Giving of Requests

A Borrower may borrow a Loan by giving to the Facility Agent a duly completed Request.

Unless the Facility Agent otherwise agrees, the latest time for receipt by the Facility Agent of a duly completed Request is 11.00 a.m. three Business Days (or such shorter period as may be agreed by the Facility Agent but in any event not less than two Business Days) before the Rate Fixing Day for the proposed borrowing.

Each Request is irrevocable.

Completion of Requests

A Request for a Loan will not be regarded as having been duly completed unless:

the Utilisation Date is a Business Day falling within the Availability Period for the Facility under which the Loan is to be made;

the amount of the Loan requested is:

a minimum of US$5,000,000 and an integral multiple of US$1,000,000;

the maximum undrawn amount available under the Tranche A Facility on the proposed Utilisation Date; or

such other amount as the Facility Agent may agree; and

the proposed Interest Period complies with this Agreement.

Only one Loan may be requested in a Request.

Advance of Loan

The Facility Agent must promptly notify each Lender of the details of the requested Loan and the amount of its share in that Loan.

The amount of each Lender’s share of the requested Loan will be its Pro Rata Share on the proposed Utilisation Date.

No Lender is obliged to participate in a Loan if, as a result its share in the Credits under a Facility would exceed its Commitment for that Facility.

If the conditions set out in this Agreement have been met, each Lender must make its share in the requested Loan available to the Facility Agent for the relevant Borrower through its Facility Office on the Utilisation Date.

UTILISATION – LETTERS OF CREDIT

Giving of Requests

A Borrower may request a Letter of Credit to be issued by giving to the Facility Agent (with a copy to the Issuing Bank) a duly completed Request and all relevant supporting documents (including any relevant application forms) as determined necessary by the Majority Lenders in their Permitted Discretion and to the Majority Lenders’ satisfaction.

Unless the Issuing Bank and the Facility Agent otherwise agree, the latest time for receipt by the Facility Agent of a duly completed Request is 11.00 a.m. five Business Days before the proposed Utilisation Date.

The Facility Agent must, by close of business in Hong Kong on the day on which a Request for a Letter of Credit is received by it, notify the Issuing Bank in writing of the maximum undrawn amount available under the L/C Facility.

Each Request is irrevocable.

Completion of Requests

A Request for a Letter of Credit will not be regarded as being duly completed unless:

it specifies that it is for a Letter of Credit and whether it is to be a standby Letter of Credit or not;

the Utilisation Date is a Business Day falling within the Availability Period;

the amount of the Letter of Credit requested is:

not exceeding the maximum undrawn amount available under the L/C Facility on the proposed Utilisation Date; or

such other amount as the Issuing Bank may agree;

in the case of a Letter of Credit which is a standby letter of credit:

it is in the form of Letter of Credit (in substantially the form of Schedule 9 (Form of Letter of Credit)); and

all relevant supporting documents are attached;

in the case of a Letter of Credit which is not a standby letter of credit, the relevant application form (in substantially the form of applications generally accepted by the Issuing Bank for general letter of credit business from time to time) and all relevant supporting documents are attached;

the expiry date (including the last day of the issuance period) of the Letter of Credit falls on or before one Business Day before the Final Maturity Date;

the expiry date of the Letter of Credit does not exceed:

in respect of a Letter of Credit requested for the purpose of equipment purchases, 540 days from the Utilisation Date; and

in respect of a Letter of Credit requested for any other general purpose, 150 days from the Utilisation Date; and

the delivery instructions for the Letter of Credit are specified.

For the purpose of (a)(vii) above, if the expiry date of the Letter of Credit falls on a day other than a Business Day, the expiry date of the Letter of Credit shall be the Business Day immediately preceding such day.

Only one Letter of Credit may be requested in a Request, and only three Requests for Letters of Credit may be delivered on any day.

Issue of Letter of Credit

The Issuing Bank must promptly notify the Facility Agent of the details of the requested Letter of Credit.

The Facility Agent must promptly upon receipt of the notification under paragraph (a) above notify each L/C Lender of the details of the requested Letter of Credit and the amount of its share of that Letter of Credit.

The amount of each L/C Lender’s share in a Letter of Credit will be its Pro Rata Share on the proposed Utilisation Date.

If the conditions set out in Clause 4.1 (Initial Conditions precedent documents) and this Clause 6 (Utilisation – Letters of Credit) have been met, the Issuing Bank must issue the Letter of Credit on the Utilisation Date.

The Issuing Bank must promptly provide to the Facility Agent a copy of any Letter of Credit issued under this Clause. The Issuing Bank is solely responsible for the form of the Letter of Credit that it issues. The Facility Agent has no duty to monitor the form of that document.

Conditions precedent

The Issuing Bank is not obliged to issue any Letter of Credit if as a result:

a L/C Lender’s share in the Letters of Credit would exceed its Commitment for the L/C Facility; or

the Letters of Credit would exceed the Total L/C Commitments.

The Issuing Bank is not obliged to issue any Letter of Credit if either on the date of the Request or the Utilisation Date:

the Repeating Representations are not correct in all material respects; and/or

a Default is outstanding or would result from the issue of that Letter of Credit.

The Issuing Bank has no duty to enquire of any person whether or not any of the conditions precedent set out in paragraphs (a) and (b) above have been met. The Issuing Bank may assume that those conditions have been met unless it is expressly notified to the contrary by the Facility Agent in accordance with Clause 38 (Notices) by 12.00pm on the proposed Utilisation Date. The Issuing Bank will have no liability to any person for issuing a Letter of Credit based on any such assumption.

L/C—LETTERS OF CREDIT

General

A Letter of Credit is repaid or prepaid to the extent that:

the Borrower who requests for the Letter of Credit provides cash cover for that Letter of Credit;

the maximum amount payable under the Letter of Credit is reduced or cancelled in accordance with its terms; or

the Issuing Bank is satisfied that it has no further liability under that Letter of Credit.

If a Letter of Credit or any amount outstanding under a Letter of Credit becomes immediately payable under this Agreement, the Borrower who requests for that Letter of Credit must repay or prepay that amount immediately.

Cash cover is provided for a Letter of Credit if the Borrower who requests for that Letter of Credit pays an amount in the currency of the Letter of Credit to an interest-bearing account with the Issuing Bank in the name of such Borrower and the following conditions are met:

until no amount is or may be outstanding under that Letter of Credit, withdrawals from the account may only be made to pay the Finance Parties for which the cash cover is provided under this Clause; and

such Borrower has entered into and delivered a security document over that account, in form and substance satisfactory to the Issuing Bank, creating a first ranking security interest over that account.

The outstanding or principal amount of a Letter of Credit at any time is the maximum amount (actual or contingent) that is or may be payable by the relevant Borrower in respect of that Letter of Credit at that time.

The amount of cash cover will be ignored in calculating the undrawn Commitment of each Lender.

A reference to a claim being made under a Letter of Credit or a claim being paid by the Issuing Bank includes a reference to any amount due (actually or contingently) from the Issuing Bank under that Letter of Credit in any account taken for the purposes of any mandatory set-off under any applicable law or regulation in the insolvency proceedings of the beneficiary of that Letter of Credit or any other person.

Illegality

The Issuing Bank must notify the Company promptly if it becomes aware that it is unlawful in any jurisdiction for the Issuing Bank to perform any of its obligations under a Finance Document or to have outstanding any Letter of Credit.

After notification under paragraph (a) above:

the Company must use its best endeavours to ensure the release of the liability of the Issuing Bank under each outstanding Letter of Credit;

failing this, each Borrower must repay or prepay the share of each L/C Lender in each Letter of Credit requested by it on the date specified in paragraph (c) below; and

no further Letters of Credit will be issued.

The date for repayment or prepayment of a L/C Lender’s share in a Letter of Credit will be the date specified by the Issuing Bank in the notification under paragraph (a) above and which must not be earlier than the last day of any applicable grace period allowed by law.

Claims under a Letter of Credit

Each Borrower irrevocably and unconditionally authorises the Issuing Bank to pay any claim made or purported to be made under a Letter of Credit requested by it and which appears on its face to be in order (a claim).

The Issuing Bank may at its discretion determine whether a claim is in order. If the Issuing Bank determines that a claim is not in order, it must promptly notify the Facility Agent in writing of such determination and provide to the Facility Agent all relevant details (including any supporting documents) of the relevant claim. Upon receipt of such notification:

the Facility Agent shall promptly notify the L/C Lenders;

the L/C Lenders shall provide their response to the discrepancies, and if no reply is received within three Business Days of the request, such consent shall be deemed given; and

the Facility Agent may, subject to sub-paragraph (ii) above, instruct the Issuing Bank to accept the relevant claim.

Each Borrower that requested the issue of a Letter of Credit must pay to the Issuing Bank an amount equal to the amount of any claim one Business Day after each such claim.

The Issuing Bank must promptly notify the Facility Agent:

upon paying any claim made or purported to be made under a Letter of Credit pursuant to paragraph (a) above;

upon receipt from the Borrowers of all amounts payable by the Borrower pursuant to paragraph (c) above; and

if the Borrowers fail to pay any amounts due to the Issuing Bank in accordance with paragraph (c) above.

Each Borrower acknowledges that the Issuing Bank:

is not obliged to carry out any investigation or seek any confirmation from any other person before paying a claim; and

deals in documents only and will not be concerned with the legality of a claim or any underlying transaction or any available set-off, counterclaim or other defence of any person.

The obligations of a Borrower under this Clause will not be affected by:

the sufficiency, accuracy or genuineness of any claim or any other document; or

any incapacity of, or limitation on the powers of, any person signing a claim or other document.

Indemnities

Each Borrower must immediately on demand indemnify the Issuing Bank against any loss or liability which the Issuing Bank incurs under or in connection with any Letter of Credit requested by it, except to the extent that the loss or liability is directly caused by the gross negligence or wilful misconduct of the Issuing Bank.

Each L/C Lender must immediately on demand (to be issued directly by the Issuing Bank) directly indemnify the Issuing Bank against its share of any loss or liability which the Issuing Bank incurs under or in connection with any Letter of Credit and which has not been paid for by an Obligor, except to the extent that the loss or liability is directly caused by the gross negligence or wilful misconduct of the Issuing Bank.

The Facility Agent must, upon request by the Issuing Bank, provide to the Issuing Bank any relevant details of each L/C Lender for the purposes of issuing a demand under paragraph (b) above.

A L/C Lender’s share of the liability or loss referred to in paragraph (b) above will be its Pro Rata Share on the Utilisation Date of the relevant Letter of Credit, adjusted to reflect any subsequent assignment or transfer under this Agreement.

The Issuing Bank must promptly notify the Facility Agent:

upon issuing a demand pursuant to paragraph (b) above; and

upon receipt from a L/C Lender of any amounts referred to under paragraph (b) above.

Each Borrower must immediately on demand reimburse any L/C Lender for any payment it makes to the Issuing Bank under this Subclause.

The obligations of each Borrower and each L/C Lender under this Clause are continuing obligations and will extend to the ultimate balance of all sums payable by the Borrower or that L/C Lender under or in connection with any Letter of Credit, regardless of any intermediate payment or discharge in whole or in part.

The obligations of each Borrower and each L/C Lender under this Clause will not be affected by any act, omission or thing which, but for this provision, would reduce, release or prejudice any of its obligations under this Clause (whether or not known to it or any other person). This includes:

any time or waiver granted to, or composition with, any person;

any release of any person under the terms of any composition or arrangement;

the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets (present or future) of, any person;

any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any person;

any amendment of a Finance Document, any Letter of Credit or any other document or security;

any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any Letter of Credit or any other document or security; or

any insolvency or similar proceedings.

Rights of contribution

OPTIONAL CURRENCIES FOR LETTERS OF CREDIT

General

if the Letter of Credit is denominated in USD, its amount; or

if the Letter of Credit is denominated in an Optional Currency, its equivalent in USD calculated on the basis of the Agent’s Spot Rate of Exchange on the date of a duly completed Request for that Letter of Credit, as adjusted below at six monthly intervals.

Selection

Conditions relating to Optional Currencies

A Letter of Credit may be denominated in an Optional Currency for an Interest Period if that Optional Currency is EUR, HKD, JPY, GBP or (subject to all applicable laws, regulations and internal policy requirements of the Facility Agent and the Issuing Bank) RMB, or has been previously approved by the Facility Agent (acting on the instructions of all the relevant Lenders).

If the Facility Agent has received a request from the Company for a currency to be approved as an Optional Currency, the Facility Agent must, within five Business Days, confirm to the Company whether or not the Lenders have given their approval.

Optional Currency equivalents

whether any limit under this Agreement has been exceeded;

the amount of a Letter of Credit;

the share of a L/C Lender in a Letter of Credit;

the amount of any repayment or prepayment of a Letter of Credit; or

the undrawn amount of a Lender’s Commitment,

Letters of Credit in Optional Currency

If a Letter of Credit is denominated in an Optional Currency, the Facility Agent must at six monthly intervals after the date of this Agreement, recalculate the USD Amount of that Letter of Credit by notionally converting the outstanding amount of that Letter of Credit into USD on the basis of the Agent’s Spot Rate of Exchange on the date of calculation.

Each Borrower must, if requested by the Facility Agent within 10 days of any calculation under paragraph (a) above, ensure that sufficient Letters of Credit are repaid or prepaid to prevent the USD Amount of the Letters of Credit exceeding the Total L/C Commitments following any adjustment to a USD Amount under paragraph (a) above.

Notification

REPAYMENT

Repayment of Tranche A Loans

Each Borrower must repay each Tranche A Loan made to it in full on its Maturity Date.

Any part of Tranche A Loan which is repaid or prepaid may be reborrowed in accordance with the terms of this Agreement.

Without prejudice to each Borrower’s obligation under paragraph (a) above, if:

one or more Tranche A Loans are to be made available to a Borrower, (A) on the same day that a maturing Tranche A Loan is due to be repaid by that Borrower and (B) in whole or in part for the purpose of refinancing the maturing Tranche A Loan; and

the proportion borne by each Lender’s participation in the maturing Tranche A Loan to the amount of that maturing Tranche A Loan is the same as the proportion borne by that Lender’s participation in the new Tranche A Loans to the aggregate amount of those new Tranche A Loans,

if the amount of the maturing Tranche A Loan exceeds the aggregate amount of the new Tranche A Loan:

if the amount of the maturing Tranche A Loan is equal to or less than the aggregate amount of the new Tranche A Loans:

Repayment of Letters of Credit

PREPAYMENT AND CANCELLATION

Mandatory prepayment – illegality

A Lender must promptly notify the Issuing Bank, the Facility Agent and the Company if it becomes aware that it is unlawful in any applicable jurisdiction for that Lender to perform any of its obligations under a Finance Document or to fund or maintain its share in any Credit.

After notification under paragraph (a) above the Facility Agent must notify the Company promptly that:

each Borrower must repay or prepay the share of that Lender in each Credit utilised by it on the date specified in paragraph (c) below; and

the Commitments of that Lender will be immediately cancelled.

The date for repayment or prepayment of a Lender’s share in a Credit will be:

the last day of the current Interest Period of that Credit or, in the case of a Letter of Credit five days after the date of the notification; or

if earlier, the date specified by that Lender in the notification under paragraph (a) above and which must not be earlier than the last day of any applicable grace period allowed by law.

Mandatory prepayment – ABL Commitment

If, upon the delivery of any Collateral Report and its Aging Report under Subclause 20.4 (Collateral Report), the Facility Agent (acting on the instructions of the Majority Lenders) determines that the aggregate amount outstanding under the Facility less the then amount of cash cover provided pursuant to Subclause 7.1 (General) exceeds the then Borrowing Base, in each case as at the date such Collateral Report was prepared (the “Excess Amount”), each Borrower shall repay or prepay outstanding Loans utilised by it in an amount equal to the Excess Amount on the last day of the forthcoming Interest Period.

No prepayment under paragraph (a) above shall result in any ABL Commitments hereunder being permanently cancelled or reduced.

Mandatory prepayment – Cash Dominion

Voluntary cancellation

A Borrower may, by giving not less than 3 Business Days’ prior notice to the Facility Agent (or such shorter period as may be agreed between the Borrower and the Facility Agent (acting on the instructions of the Majority Lenders), cancel the unutilised amount of a Commitment in whole or in part.

Partial cancellation of Commitments must be, in respect of each of the Tranche A Facility and the L/C Facility, in a minimum amount of US$5,000,000 (or, if less, the maximum undrawn amount of the ABL Commitments) and an integral multiple of US$1,000,000.

Any cancellation in part will be applied against the relevant Commitment of each Lender pro rata.

Voluntary prepayment of Loans

Subject to Clause 28.3 (Break Costs), a Borrower may, by giving not less than 3 Business Days’ prior notice to the Facility Agent (or such shorter period as may be agreed between such Borrower and the Facility Agent (acting on the instructions of the Majority Lenders), prepay (or ensure that such Borrower prepays) any Loan in whole or in part.

A prepayment of part of a Loan must be in a minimum amount of US$5,000,000 and an integral multiple of US$1,000,000.

Right of repayment and cancellation of a single Lender

If an Obligor is, or will be, required to pay to a Lender:

a Tax Payment; or

an Increased Cost,

After notification under paragraph (a) above:

each Borrower must repay or prepay that Lender’s share in each Credit utilised by it on the date specified in paragraph (c) below; and

the Commitments of that Lender will be immediately cancelled.

The date for repayment or prepayment of a Lender’s share in a Credit will be:

the last day of the current Interest Period for that Credit, or in the case of a Letter of Credit, 10 days after the date of the notification; or

if earlier, the date specified by the Company in its notification.

Miscellaneous provisions

Any notice of prepayment and/or cancellation under this Agreement is irrevocable and must specify the relevant date(s) and the affected Credits and Commitments. The Facility Agent must notify the each relevant Lender promptly of receipt of any such notice.

All prepayments under this Agreement must be made with accrued interest on the amount prepaid. Subject to paragraph (c) below, no premium or penalty is payable in respect of any prepayment except for Break Costs.

The Majority Lenders may agree to a shorter notice period for a voluntary prepayment or a voluntary cancellation.

No prepayment or cancellation is allowed except in accordance with the express terms of this Agreement.

No amount of the ABL Commitments cancelled under this Agreement may subsequently be reinstated save as set out in Clause 10.2 (Mandatory prepayment – ABL Commitment).

INTEREST

Calculation of interest

Margin; and

LIBOR.

Payment of interest

Interest on overdue amounts

If an Obligor fails to pay any amount payable by it under the Finance Documents, it must immediately on demand by the Facility Agent pay interest on the overdue amount from its due date up to the date of actual payment, both before, on and after judgment.

Interest on an overdue amount is payable at a rate determined by the Facility Agent to be two per cent. per annum above the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount. For this purpose, the Facility Agent may (acting reasonably):

select successive Interest Periods of any duration of up to three months; and

determine the appropriate Rate Fixing Day for that Interest Period.

Notwithstanding paragraph (b) above, if the overdue amount is a principal amount of a Loan and becomes due and payable before the last day of its current Interest Period, then:

the first Interest Period for that overdue amount will be the unexpired portion of that Interest Period; and

the rate of interest on the overdue amount for that first Interest Period will be two per cent. per annum above the rate then payable on that Loan.

Interest (if unpaid) on an overdue amount will be compounded with that overdue amount at the end of each of its Interest Periods but will remain immediately due and payable.

Notification of rates of interest

INTEREST PERIODS

Selection—Tranche A Loans

Each Tranche A Loan has one Interest Period only.

Each Interest Period for a Tranche A Loan will be one month or any other period agreed by the Borrower, the Facility Agent and all the Lenders.

No overrunning the Final Maturity Date

Other adjustments

Notification

CHANGES TO CALCULATION OF INTEREST

Unavailability of Screen Rate

If no Screen Rate is available for the Interest Period of a Loan, the applicable Screen Rate shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of that Loan.

If no Screen Rate is available, any amendment or waiver which relates to providing for another benchmark rate to apply in relation to that currency in place of that Screen Rate (or which relates to aligning any provision of a Finance Document to the use of that other benchmark rate) may be made with the consent of the Majority Lenders and the Obligors.

If any Lender fails to respond to a request for an amendment or waiver described in paragraph (a) above within five Business Days (unless the Company and the Facility Agent agree to a longer time period in relation to any request) of that request being made:

its Commitment(s) shall not be included for the purpose of calculating the Total Commitments under the relevant Facility when ascertaining whether any relevant percentage of Total Commitments has been obtained to approve that request; and

its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request.

Subject to paragraph (e) below and after giving effect to paragraph (a) and any amendments contemplated by paragraphs (b) and (c) above, if no Screen Rate is available for LIBOR for the Interest Period of a Loan for (i) the currency of a Loan or (ii) the Interest Period of a Loan, the applicable LIBOR shall be the Reference Bank Rate as of the Specified Time for that Loan and for a period equal in length to the Interest Period of that Loan.

If no Reference Bank Rate is available for the relevant currency and Interest Period, there shall be no LIBOR for that Loan and Clause 13.4 (Cost of funds) shall apply to that Loan for that Interest Period.

Calculation of Reference Bank Rate

Subject to paragraph (b) below, if LIBOR is to be determined on the basis of a Reference Bank Rate but a Reference Bank does not supply a quotation by the Specified Time, the Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Reference Banks.

If at or about noon on the Quotation Day, none of the Reference Banks supplies a quotation, there shall be no Reference Bank Rate for that Interest Period.

Market disruption

Cost of funds

If this Clause 13.4 applies, the rate of interest on the Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:

the Margin; and

in the circumstances described in Subclause 13.1 (Unavailability of Screen Rate) or Subclause 13.3 (Market disruption), the rate notified to the Borrowers by the Facility Agent to be that which expresses as a percentage rate per annum, the cost to the Lenders of funding that Loan from whatever source they may reasonably select.

If this Clause 13.4 applies and a Lender or a Borrower so requires, the Lender and the Borrowers shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest.

Any alternative basis agreed pursuant to paragraph (a) above shall be binding on all the Parties.

TAXES

General

Tax gross-up

Each Obligor must make all payments to be made by it under the Finance Documents without any Tax Deduction, unless a Tax Deduction is required by law.

If an Obligor or a Lender is aware that an Obligor must make a Tax Deduction (or that there is a change in the rate or the basis of a Tax Deduction), it must promptly notify the Facility Agent. If the Facility Agent receives such notification from a Lender it shall notify that Obligor.

If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from the Obligor will be increased to an amount which (after making the Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

If an Obligor is required to make a Tax Deduction, that Obligor must make the minimum Tax Deduction allowed by law and must make any payment required in connection with that Tax Deduction within the time allowed by law.

Within 30 Business Days of making either a Tax Deduction or a payment required in connection with a Tax Deduction, the Obligor making that Tax Deduction or payment must deliver to the Facility Agent for the relevant Finance Party evidence reasonably satisfactory to that Finance Party (acting reasonably) that the Tax Deduction has been made or (as applicable) the appropriate payment has been paid to the relevant taxing authority.

Tax indemnity

Without prejudice to Subclause 14.2 (Tax gross-up), if any Finance Party is required to make any payment of or on account of Tax on or in relation to any sum received or receivable under the Finance Documents (including any sum deemed for purposes of Tax to be received or receivable by such Finance Party whether or not actually received or receivable) or if any liability in respect of any such payment is asserted, imposed, levied or assessed against any Finance Party, the Borrower shall, within seven Business Days of demand by the Facility Agent, indemnify the Finance Party which suffers a loss or liability as a result against such payment or liability, together with any interest, penalties, costs and expenses payable or incurred in connection therewith, provided that this Subclause shall not apply to:-

any Tax imposed on or calculated with reference to profit or net income received or receivable (but not any sum deemed to be received or receivable) of a Finance Party by the jurisdiction in which such Finance Party is incorporated;

any Tax imposed on or calculated with reference to profit or net income on the Facility Office of a Finance Party by the jurisdiction in which the Facility Office of such Finance Party is located; or

a FATCA Deduction required to be made by a party.

A Finance Party making, or intending to make, a claim under paragraph (a) above must promptly notify the Facility Agent and the Company in accordance with Subclause 38.4 (Obligors) of the event which will give, or has given, rise to the claim.

A Finance Party must, on receiving a payment from an Obligor under this Clause notify the Facility Agent.

Tax Credit

a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part, or to that Tax Payment; and

it has obtained, used and retained that Tax Credit,

Stamp taxes

Indirect tax

All consideration expressed to be payable under a Finance Document by any Obligor to a Finance Party shall be deemed to be exclusive of any Indirect Tax. If any Indirect Tax is chargeable on any supply made by any Finance Party to any Obligor in connection with a Finance Document, that Obligor shall pay to the Finance Party (in addition to and at the same time as paying the consideration) an amount equal to the amount of the Indirect Tax.

Where a Finance Document requires any Obligor to reimburse or indemnify a Finance Party for any costs or expenses, that Obligor shall also at the same time reimburse and indemnify (as the case may be) the Finance Party against all Indirect Tax incurred by that Finance Party in respect of such costs or expenses to the extent that the Finance Party reasonably determines that it is not entitled to credit or repayment in respect of the Indirect Tax.

FATCA Information

Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:

confirm to that other Party whether it is:

a FATCA Exempt Party; or

not a FATCA Exempt Party;

supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party’s compliance with FATCA; and

supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party’s compliance with any other law, regulation, or exchange of information regime.

If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party as soon as reasonably practicable.

Paragraph (a) above shall not oblige any Finance Party to do anything, and paragraph (a)(iii) above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:

any law or regulation;

any fiduciary duty; or

any duty of confidentiality.

If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.

If the Borrower is a US Tax Obligor or a Finance Party reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten Business Days of:

where the Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the date of this Agreement;

where the Borrower is a US Tax Obligor on a Transfer Date and the relevant Lender is a New Lender, the relevant Transfer Date;

the date a new US Tax Obligor accedes as the Borrower; or

where the Borrower is not a US Tax Obligor, the date of a request from the Facility Agent,

a withholding certificate on Form W-8, Form W-9 or any other relevant form; or

any withholding statement or other document, authorisation or waiver as the Facility Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.

The Facility Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) above to the relevant Borrower.

If any withholding certificate, withholding statement, document, authorisation or waiver provided to Facility Agent by a Lender is or becomes materially inaccurate or incomplete, the relevant Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Facility Agent unless it is unlawful for the relevant Lender to do so (in which case the Lender shall promptly notify the Facility Agent). The Facility Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the relevant Borrower.

The Facility Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) or (g) above without further verification. The Facility Agent shall not be liable for any action taken by it under or in connection with paragraph (e), (f) or (g) above.

If a Lender fails to supply any withholding certificate, withholding statement, document, authorisation, waiver or information in accordance with paragraph (e) above, or any withholding certificate, withholding statement, document, authorisation, waiver or information provided by a Lender to the Facility Agent is or becomes materially inaccurate or incomplete, then such Lender shall indemnify the Facility Agent, within three Business Days of demand, against any cost, loss, Tax or liability (including, without limitation, for negligence or any other category of liability whatsoever) incurred by the Facility Agent (including any related interest and penalties) in acting as Facility Agent under the Finance Documents as a result of such failure.

FATCA Deduction

Each Party may make any FATCA Deduction it is required by FATCA to make, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

Each Party shall as soon as reasonably practicable, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment, and in addition, shall notify the Company and the Agent and the Agent shall notify the other Finance Parties.

INCREASED COSTS

Increased Costs

the introduction of, or any change in, or any change in the interpretation, administration or application of, any law or regulation;

compliance with any law or regulation made after the date of this Agreement; or

compliance with Basel III, Capital Requirements Directive IV or the United States ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act (including any regulations relating to them).

Exceptions

compensated for under another Clause or would have been but for an exception to that Clause;

attributable to a Finance Party or its Affiliate wilfully failing to comply with any law or regulation;

attributable to a Tax Deduction which as at the date of this Agreement is required by law to be made by an Obligor;

attributable to a FATCA Deduction required to be made by a Party; or

attributable to the implementation or application of or compliance with the “International Convergence of Capital Measurement and Capital Standards, a Revised Framework” published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement (but excluding any amendment arising out of Basel III) (“Basel II”) or any other law or regulation which implements Basel II (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates).

Claims

A Finance Party intending to make a claim for an Increased Cost must notify the Facility Agent of the circumstances giving rise to and the amount of the claim, following which the Facility Agent will promptly notify the Borrower.

Each Finance Party must, as soon as practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Increased Cost.

MITIGATION

Mitigation

Each Finance Party must, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which result or would result in:

any Tax Payment or Increased Cost being payable to that Finance Party; or

that Finance Party being able to exercise any right of prepayment and/or cancellation under this Agreement by reason of any illegality,

Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.

Each Borrower must indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of any step taken by it under this Subclause.

A Finance Party is not obliged to take any step under this Subclause if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

Conduct of business by a Finance Party

interfere with the right of any Finance Party to arrange its affairs (Tax or otherwise) in whatever manner it thinks fit;

oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it in respect of Tax or the extent, order and manner of any claim; or

oblige any Finance Party to disclose any information relating to its affairs (Tax or otherwise) or any computation in respect of Tax.

PAYMENTS

Place

Funds

Distribution

Each payment received by the Facility Agent under the Finance Documents for another Party must, except as provided below, be made available by the Facility Agent to that Party by payment (as soon as practicable after receipt) to its account with such office or bank in the principal financial centre of the country of the relevant currency as it may notify to the Facility Agent for this purpose by not less than five Business Days’ prior notice.

The Facility Agent may apply any amount received by it for an Obligor in or towards payment (as soon as practicable after receipt) of any amount due from that Obligor under the Finance Documents or in or towards the purchase of any amount of any currency to be so applied.

Where a sum is paid to the Facility Agent under the Finance Documents for another Party, the Facility Agent is not obliged to pay that sum to that Party until it has established that it has actually received it. However, the Facility Agent may assume that the sum has been paid to it, and, in reliance on that assumption, make available to that Party a corresponding amount. If it transpires that the sum has not been received by the Facility Agent, that Party must immediately on demand by the Facility Agent refund any corresponding amount made available to it together with interest on that amount from the date of payment to the date of receipt by the Facility Agent at a rate calculated by the Facility Agent to reflect its cost of funds.

The Facility Agent shall distribute payments received by it in relation to all or any part of a Loan to the Lender indicated in the records of the Facility Agent as being so entitled on that date Provided that the Facility Agent is authorised to distribute payments to be made on the date on which any transfer becomes effective pursuant to Clause 31 (Changes to the Parties) to the Lender so entitled immediately before such transfer took place regardless of the period to which such sums relate.

Currency

Unless a Finance Document specifies that payments under it are to be made in a different manner, the currency of each amount payable under the Finance Documents is determined under this Subclause.

Interest is payable in the currency in which the relevant amount in respect of which it is payable is denominated.

A repayment or prepayment of any principal amount is payable in the currency in which that principal amount is denominated on its due date.

Amounts payable in respect of Taxes, fees, costs and expenses are payable in the currency in which they are incurred.

Each other amount payable under the Finance Documents is payable in USD.

No set-off or counterclaim

Business Days

If a payment under the Finance Documents is due on a day which is not a Business Day, the due date for that payment will instead be the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not) or whatever day the Facility Agent determines is market practice.

During any extension of the due date for payment of any principal under this Agreement interest is payable on that principal at the rate payable on the original due date.

Partial payments

If the Facility Agent receives a payment insufficient to discharge all the amounts then due and payable by the Obligors under the Finance Documents, the Facility Agent must apply that payment towards the obligations of the Obligors under the Finance Documents in the following order:

first, in or towards payment pro rata of any unpaid fees, costs and expenses of the Administrative Parties, Receivers or their respective Delegates under the Finance Documents;

secondly, in or towards payment pro rata of any accrued interest or fee due but unpaid under this Agreement;

thirdly, in or towards payment pro rata of any principal amount due but unpaid under this Agreement; and

fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.

The Facility Agent must, if so directed by the Majority Lenders, vary the order set out in sub-paragraphs (a)(ii) to (iv) above.

This Subclause will override any appropriation made by an Obligor.

Timing of payments

Disruption to payment system

the Facility Agent may, and shall if requested to do so by the Company, consult with the Company with a view to agreeing with the Company such changes to the operation or administration of the Facilities as the Facility Agent may deem necessary in the circumstances;

the Facility Agent shall not be obliged to consult with the Company in relation to any changes mentioned in paragraph (a) above if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;

the Facility Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) above but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;

any such changes agreed upon by the Facility Agent and the Company shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause 30 (Amendments and Waivers);

the Facility Agent shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause; and

the Facility Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.

GUARANTEE AND INDEMNITY

Guarantee and indemnity

guarantees to each Finance Party punctual performance by each other Borrower of all its obligations under the Finance Documents;

undertakes with each Finance Party that, whenever a Borrower does not pay any amount when due under or in connection with any Finance Document, it must immediately on demand by the Facility Agent pay that amount as if it were the principal obligor in respect of that amount; and

agrees with each Finance Party that if, for any reason, any amount claimed by a Finance Party under this Clause is not recoverable from that Guarantor on the basis of a guarantee then that Guarantor will be liable as a principal debtor and primary obligor to indemnify that Finance Party in respect of any loss it incurs as a result of the Borrower failing to pay any amount expressed to be payable by it under a Finance Document on the date when it ought to have been paid. The amount payable by a Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause had the amount claimed been recoverable on the basis of a guarantee.

Continuing guarantee

Reinstatement

If any discharge (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) or arrangement is made in whole or in part on the faith of any payment, security or other disposition which is avoided or must be restored on insolvency, liquidation, administration or otherwise without limitation, the liability of each Guarantor under this Clause will continue or be reinstated as if the discharge or arrangement had not occurred.

Each Finance Party may concede or compromise any claim that any payment, security or other disposition is liable to avoidance or restoration.

Waiver of defences

any time or waiver granted to, or composition with, any person;

any release of any person under the terms of any composition or arrangement;

the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets (present or future) of, any person;

any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any person;

any amendment of a Finance Document or any other document or security;

any unenforceability, illegality, invalidity or non-provability of any obligation of any person under any Finance Document or any other document or security; or

any insolvency or similar proceedings.

Immediate recourse

Each Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other right or security or claim payment from any person before claiming from that Guarantor under this Clause.

This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.

Appropriations

hold in a suspense account any moneys received from any Guarantor or on account of that Guarantor’s liability under this Clause.

Non-competition

all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full; or

the Facility Agent otherwise directs (acting on the instructions of the Majority Lenders),

be subrogated to any rights, security or moneys held, received or receivable by any Finance Party (or any trustee or agent on its behalf);

be entitled to any right of contribution or indemnity in respect of any payment made or moneys received on account of that Guarantor’s liability under this Clause;

claim, rank, prove or vote as a creditor of any Obligor or its estate in competition with any Finance Party (or any trustee or agent on its behalf); or

receive, claim or have the benefit of any payment, distribution or security from or on account of any Obligor, or exercise any right of set-off as against any Obligor.

Release of Guarantors’ right of contribution

that Guarantor will be released by each other Guarantor from any liability whatsoever to make a contribution to any other Guarantor arising by reason of the performance by any other Guarantor of its obligations under the Finance Documents; and

each other Guarantor will waive any rights it may have by reason of the performance of its obligations under the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any right of any Finance Party under any Finance Document or of any other security taken under, or in connection with, any Finance Document where the rights or security are granted by or in relation to the assets of the retiring Guarantor.

Additional security

Limitations

This guarantee does not apply to any liability to the extent it would result in this guarantee constituting unlawful financial assistance within the meaning of section 275 of the Companies Ordinance (Cap 622 of the Laws of Hong Kong).

The obligations of any Additional Guarantor are subject to the limitations (if any) set out in the Accession Agreement executed by that Additional Guarantor.

REPRESENTATIONS AND WARRANTIES

Representations and warranties

Status

It is a corporation or limited liability company, duly incorporated or formed and validly existing under the laws of its jurisdiction of incorporation or formation.

It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.

It is not a FATCA FFI or a US Tax Obligor.

Powers and authority

Legal validity

Subject to any general principles of law limiting its obligations and referred to in any legal opinion required under this Agreement, each Finance Document to which it is a party is its legally binding, valid and enforceable obligation.

Each Finance Document to which it is a party is in the proper form for its enforcement in the jurisdiction of its incorporation.

Non-conflict

any law or regulation applicable to it;

its or any of its Subsidiaries’ constitutional documents; or

any document which is binding upon it or any of its Subsidiaries or any of its or its Subsidiaries’ assets.

No default

No Default is outstanding or will result from the entry into of, or the performance of any transaction contemplated by, any Finance Document; and

no other event or circumstance is outstanding which constitutes a default under any document which is binding on it or any of its Subsidiaries or any of its or its Subsidiaries’ assets to an extent or in a manner which has or is reasonably likely to have a Material Adverse Effect.

Authorisations

Financial statements

have been prepared in accordance with GAAP, consistently applied; and

give a true and fair view of the relevant financial condition (consolidated, if applicable) as at the date to which they were drawn up,

No material adverse change

Pari passu ranking

Environmental laws

Each Obligor and each member of the Group is in compliance with Subclause 22.14 (Environmental matters) and no circumstances have occurred which would prevent such compliance in each case where non-compliance could reasonably be expected to have a Material Adverse Effect.

No Environmental Claim has been commenced or (to the best of its knowledge and belief (having made due and careful enquiry) is threatened against any Obligor or any member of the Group where such Environmental Claim is likely to be determined against the relevant Obligor or member of the Group and, if so determined, would reasonably be expected to have a Material Adverse Effect.

Litigation

Taxes on payments

Stamp duties

Immunity

The entry into by it of each Finance Document constitutes, and the exercise by it of its rights and performance of its obligations under each Finance Document will constitute, private and commercial acts performed for private and commercial purposes; and

it will not be entitled to claim immunity from suit, execution, attachment or other legal process in any proceedings taken in its jurisdiction of incorporation in relation to any Finance Document.

No adverse consequences

It is not necessary under the laws of its jurisdiction of incorporation:

in order to enable any Finance Party to enforce its rights under any Finance Document; or

by reason of the entry into of any Finance Document or the performance by it of its obligations under any Finance Document,

no Finance Party is or will be deemed to be resident, domiciled or carrying on business in its jurisdiction of incorporation by reason only of the entry into, performance and/or enforcement of any Finance Document.

Jurisdiction/governing law

In this Subclause:

its jurisdiction of incorporation;

any jurisdiction where any asset subject to or intended to be subject to a Security Document is situated;

any jurisdiction where it conducts its business; and

the jurisdiction whose laws govern the perfection of any Security Document entered into by it.

Its:

irrevocable submission under the Finance Documents to the jurisdiction of the courts of Hong Kong;

agreement that each Finance Document is governed by Hong Kong law; and

agreement not to claim any immunity to which it or its assets may be entitled,

any judgment obtained in Hong Kong will be recognised and be enforceable by the courts of its Relevant Jurisdiction.

No misleading information

Authorised signatories

Anti-corruption and anti-money laundering laws

No Obligor or any other member of the Group nor any directors, officers or, to the best of each Obligor’s knowledge (after due and careful inquiry), employees, agents or Affiliates of any or all of the foregoing and none of the persons acting on behalf of any or all of the foregoing, has taken any action that would result in any breach of the UK ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, the United States Foreign Corrupt Practices Act of 1977 or other similar legislation in any jurisdiction.

The operations of each Obligor and each other member of the Group are and have been conducted at all times in compliance with applicable anti-corruption laws, anti-money laundering laws, including all relevant regulations, rules and guidelines in its jurisdiction and in each other jurisdiction in which such entity conducts business or has assets.

Sanctions

is a Restricted Party; or

has received notice of or is aware of any claim, action, suit, proceeding or investigation against it with respect to Sanctions by any Sanctions Authority.

Times for making representations and warranties

The representations and warranties set out in this Clause are made by each Original Obligor on the date of this Agreement.

Unless a representation and warranty is expressed to be given at a specific date, each representation and warranty is deemed to be repeated by:

each Additional Guarantor and the Borrower on the date on which that Additional Guarantor becomes a Guarantor; and

each Obligor on the date of each Request and the first day of each Interest Period.

When a representation and warranty in Subclause 19.6(a) (No default) is repeated on a Request for a Rollover Loan, the reference to a Default will be construed as a reference to an Event of Default.

When a representation and warranty is repeated, it is applied to the circumstances existing at the time of repetition.

INFORMATION COVENANTS

Financial statements

The Borrowers shall supply to the Facility Agent in sufficient copies for each Lender:

the audited annual financial statements and unaudited semi-annual financial statements of each Obligor; and

if the Available ABL Commitment is less than or equal to 12.5% of the ABL Commitments, the unaudited quarterly financial statements of each Obligor.

All financial statements must be supplied as soon as they are available and:

in the case of the annual financial statements to be provided under paragraph (a) above, within 180 days; and

in the case of the semi-annual and quarterly financial statements to be provided under paragraph (a) above, within 90 days,

For the purpose of this Clause, financial statements of any Obligor which is a subsidiary of the Company incorporated in any country in Asia shall be unconsolidated.

Form of financial statements

The Borrowers will use all reasonable efforts to ensure that each set of financial statements supplied under this Agreement gives (if audited) a true and fair view of, or (if unaudited) fairly represents, the financial condition (consolidated or otherwise) of the relevant person as at the date to which those financial statements were drawn up.

The Borrowers must notify the Facility Agent of any change to the manner in which the financial statements referred to above are prepared.

If requested by the Facility Agent (acting upon the request of a Lender), the Borrowers must supply to the Facility Agent:

a full description of any change notified under paragraph (b) above; and

sufficient information to enable the Finance Parties to make a proper comparison between the financial position shown by the set of financial statements prepared on the changed basis and its most recent audited consolidated financial statements delivered to the Facility Agent under this Agreement.

If requested by the Facility Agent (acting upon the request of the Majority Lenders), the Borrowers must enter into discussions for a period of not more than 30 days with a view to agreeing any amendments required to be made to this Agreement to place the Borrowers and the Lenders in the same position as they would have been if the change had not happened. Any agreement between the Borrowers and the Facility Agent will be, with the prior consent of the Majority Lenders, binding on all the Parties.

If no agreement is reached under paragraph (d) above on the required amendments to this Agreement, the Borrowers will use all reasonable efforts to ensure that the Parent’s auditors certify those amendments; the certificate of the auditors will be, in the absence of manifest error, binding on all the Parties.

Compliance Certificate

The Company shall procure the Parent to supply or cause to be supplied to the Facility Agent a scanned copy of the Compliance Certificate with each set of financial statements sent to the Facility Agent under this Agreement.

A Compliance Certificate must be signed by at least one authorised signatory of the Parent.

Collateral Report

Information - miscellaneous

copies of all documents despatched by any member of the Group to any of their respective creditors to whom the aggregate amount of Financial Indebtedness owed by all members of the Group such that the amount outstanding exceeds HK$40,000,000 (or its equivalent in other currencies);

promptly upon becoming aware of them, details of any litigation, arbitration or administrative proceedings against any member of the Group which are current, threatened or pending and which have or might, if adversely determined, expose any member of the Group to a financial liability equal to or greater than HK$40,000,000 (or its equivalent in other currencies);

promptly upon becoming aware of them, details of any change in authorised signatories of each Obligor (including specimen signatures of any newly appointed authorised signatories);

promptly on request, a list of the then current Material Subsidiaries; and

subject to any applicable listing rule restrictions, the requirements of securities laws and regulations in the United States of America, promptly on request, such further information regarding the financial condition, business and operations of any member of the Group as any Finance Party through the Facility Agent may reasonably request.

Notification of Default

Unless each of the Facility Agent, and the Issuing Bank has already been so notified by another Obligor, each Obligor must notify each of the Facility Agent, and the Issuing Bank of any Default promptly upon becoming aware of its occurrence.

Promptly on request by the Facility Agent, the Company shall, and the Company shall also procure the Parent to, each supply to the Facility Agent a certificate, signed by two of its authorised signatories on its behalf, certifying that no Default is outstanding or, if a Default is outstanding, specifying the Default and the steps, if any, being taken to remedy it. For the avoidance of doubt, the Facility Agent shall not be required to verify if the persons signed are the authorised signatories.

Year end

Customer due diligence requirements

Each Obligor must promptly on the request of any Finance Party supply to that Finance Party any documentation or other evidence which is reasonably requested by that Finance Party (whether for itself, on behalf of any Finance Party or any prospective new Lender) to enable a Finance Party or prospective new Lender to carry out and be satisfied with the results of all applicable customer due diligence requirements.

Each Lender must promptly on the request of the Facility Agent supply to the Facility Agent any documentation or other evidence which is reasonably required by the Facility Agent to carry out and be satisfied with the results of all customer due diligence requirements.

FINANCIAL COVENANTS

Definitions

income tax expense;

interest expense, amortisation or writeoff of debt discount and debt issuance costs and commissions, discounts and other fees and charges associated with Financial Indebtedness (including the Facility);

depreciation and amortisation expense;

non-cash charges, losses, expenses, accruals and provisions, including stock-based compensation and sale of assets not in the ordinary course of business (but excluding any such non-cash charge to the extent that it represents an accrual or reserve for cash expenses in any future period);

amortisation of intangibles (including, but not limited to, impairment of goodwill) and organization costs;

any extraordinary, unusual or non-recurring expenses or losses;

any fees and expenses incurred during such period in connection with any Investment (including any Permitted Acquisition), Disposition, issuance of Financial Indebtedness or Capital Stock, or amendment or modification of any debt instrument, in each case permitted under the Finance Documents, including:

any such transactions undertaken but not completed and any transactions consummated prior to the date of this Agreement; and

any financial advisory fees, accounting fees, legal fees and other similar advisory and consulting fees, in each case paid in cash during such period (collectively, Advisory Fees);

any fees and expenses incurred in connection with the Transactions, including Advisory Fees and (solely for purposes of this paragraph (h)) cash charges in respect of strategic market reviews, stay or sign-on bonuses, integration-related bonuses, restructuring, consolidation, severance or discontinuance of any portion of operations, employees and/or management;

the amount of “run-rate” cost savings, operating expense reductions, operating improvements and synergies that are reasonably identifiable, factually supportable and projected by the Parent in good faith to be realized as a result of mergers and other business combinations, Permitted Acquisitions, divestitures, insourcing initiatives, cost savings initiatives, plant consolidations, openings and closings, product rationalization and other similar initiatives after the date of this Agreement, in each case to the extent not prohibited by this Agreement (collectively, Initiatives) (calculated on a pro forma basis as though such cost savings, operating expense reductions, operating improvements and synergies had been realized on the first day of the relevant Reference Period), net of the amount of actual benefits realized in respect thereof; provided that:

actions in respect of such cost-savings, operating expense reductions, operating improvements and synergies have been, or will be, taken within 12 months of the applicable Initiative;

no cost savings, operating expense reductions, operating improvements or synergies shall be added pursuant to this paragraph (i) to the extent duplicative of any expenses or charges otherwise added to (or excluded from) Consolidated EBITDA, whether through a pro forma adjustment or otherwise, for such period;

projected amounts (and not yet realised) may no longer be added in calculating Consolidated EBITDA pursuant to this paragraph (i) to the extent occurring more than four full fiscal quarters after the applicable Initiative;

the Borrower must deliver to the Facility Agent:

a certificate of an authorised signatory setting forth such estimated cost-savings, operating expense reductions, operating improvements and synergies; and

information and calculations supporting in reasonable detail such estimated cost savings, operating expense reductions, operating improvements and synergies; and

with respect to any Reference Period, the aggregate amount added back in the calculation of Consolidated EBITDA for such Reference Period pursuant to this paragraph (i) shall not exceed 20% of Consolidated EBITDA (calculated prior to giving effect to any add-backs pursuant to this paragraph (i)); and

non-recurring cash expenses recognized for restructuring costs, integration costs and business optimization expenses in connection with any Initiative, and minus,

to the extent included in the statement of such Consolidated Net Income for such period, the sum of:

interest income;

any extraordinary, unusual or non-recurring income or gains (including, whether or not otherwise includable as a separate item in the statement of such Consolidated Net Income for such period, gains on the sales of assets outside of the ordinary course of business);

income tax credits (to the extent not netted from income tax expense); and

any other non-cash income (other than normal accruals in the ordinary course of business for non-cash income that represents an accrual for cash income in a future period), and,

any cash payments made during such period in respect of items described in paragraph (d) above subsequent to the fiscal quarter in which the relevant non-cash expenses or losses were reflected as a charge in the statement of Consolidated Net Income, all as determined on a consolidated basis.

Consolidated EBITDA for such period less the aggregate amount actually paid by the Parent and its Restricted Subsidiaries during such period on account of Capital Expenditures (excluding the principal amount of Financial Indebtedness incurred in connection with such expenditures) less expenses for taxes paid in cash during such period; to

Consolidated Fixed Charges for such period.

Consolidated Interest Expense for such period;

scheduled principal payments made during such period on account of principal of Financial Indebtedness of the Parent or any Restricted Subsidiary;

Restricted Payments made in cash;

Capital Lease Obligation payments; and

cash contributions to any Plan, all calculated for the Parent and its Restricted Subsidiaries on a consolidated basis and, to the extent applicable, in accordance with GAAP.

the income (or deficit) of any person accrued prior to the date it becomes a Restricted Subsidiary of the Parent or is merged into or consolidated with the Parent or any of its Restricted Subsidiaries;

the income (or deficit) of any person (other than a Restricted Subsidiary of the Parent) in which the Parent or any of Restricted its Subsidiaries has an ownership interest, except to the extent that any such income is actually received by the Parent or such Restricted Subsidiary in the form of dividends or similar distributions;

the undistributed earnings of any Restricted Subsidiary of the Parent to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary is not at the time permitted by the terms of any Contractual Obligation (other than under any Finance Document) or requirement of law or regulation applicable to such Restricted Subsidiary; and

any income (or loss) for such period attributable to the early extinguishment of Financial Indebtedness or Swap Obligations.

any entity, whether or not incorporated, that is under common control with a Parent Group within the meaning of Section 4001(a)(14) of ERISA;

any corporation that is a member of a controlled group of corporations within the meaning of Section 414(b) of the Code of which a member of the Parent Group is a member;

any trade or business (whether or not incorporated) that is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Code of which a member of the Parent Group is a member; and

with respect to any member of the Parent Group, any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Code of which any corporation described in paragraph (b) above or any trade or business described in paragraph (c) above is a member. Any former ERISA Affiliate of any member of the Parent Group shall continue to be considered an ERISA Affiliate of the member of the Parent Group within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of the member of the Parent Group and with respect to liabilities arising after such period for which the member of the Parent Group could be liable under the Code or ERISA.

makes or is obligated to make contributions;

during the preceding five plan years, has made or been obligated to make contributions; or

has any actual or contingent liability.

any and all Swap Agreements; and

any and all cancellations, buy backs, reversals, terminations or assignments of any Swap Agreement transaction.

the Acquisition; and

the execution, delivery and performance by the Obligors of this Agreement, the borrowing of Loans hereunder and the use of proceeds thereof.

Interpretation

an accounting term used herein is to be construed in accordance with the principles applied in connection with GAAP;

any amount in a currency other than USD is to be taken into account at its USD equivalent calculated on the basis of:

the Facility Agent’s Spot Rate of Exchange for the purchase of the relevant currency in the Hong Kong foreign exchange market with USD at or about 11.00 a.m. on the day the relevant amount falls to be calculated; or

if the amount is to be calculated on the last day of a financial period of the Parent, the relevant rates of exchange used by the Parent in or in connection with its financial statements for that period; and

no item may be credited or deducted more than once in any calculation.

Consolidated Fixed Charge Coverage Ratio

the Available ABL Commitment is less than or equal to 10% of the ABL Commitments; or

a Specified Event of Default has occurred and is continuing,

GENERAL COVENANTS

General

Authorisations

obtain, maintain and comply with the terms; and

supply certified copies to the Facility Agent,

enable it to perform its obligations under the Finance Documents to which it is a party;

ensure the legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of any Finance Document to which it is a party; and

carry on its business where failure to do so has or could reasonably be expected to have a Material Adverse Effect.

Compliance with laws

Pari passu ranking

Negative pledge

Except as provided below, no Obligor may, and the Company shall procure that no Material Group Member will, create or allow to exist any Security Interest on any of its present or future assets.

No Obligor may, and the Company shall procure that no Material Group Member will:

sell, transfer or otherwise dispose of any of its present or future assets on terms where it is or may be leased to or re-acquired or acquired by a member of the Material Group or any of its related entities;

sell, transfer or otherwise dispose of any of its receivables on recourse terms;

enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or

enter into any other preferential arrangement having a similar effect,

Paragraphs (a) and (b) do not apply to:

any Security Interest constituted by the Security Documents;

any Security Interest comprising a netting or set-off arrangement entered into by a member of the Group in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances;

any lien arising by operation of law and in the ordinary course of trading;

any Security Interest given, by an Obligor or member of the Group listed in Part 1 (Existing Security Interest) of Schedule 5 (Existing Security Interest, Loans, Guarantees, and Letters of Credit), provided that the principal amount secured is not increased from the amount stated in that Schedule;

any Security Interest on an asset, or an asset of any person, acquired by a member of the Group after the date of this Agreement but only to the extent that the principal amount secured by that Security Interest has not been incurred or increased in contemplation of, or since, the acquisition;

any Security Interest on an asset, or an asset of any person, acquired or to be acquired by the Borrower to secure indebtedness raised for the purpose of financing or refinancing the acquisition or development of that asset but only to the extent that the principal amount secured by that Security Interest does not exceed the cost of the acquisition or development;

any Security Interest over cash collateral required to be provided under this Agreement or over cash collateral to be provided in connection with the Existing Letters of Credit; and

any Security Interest created by a member of the Material Group to secure Financial Indebtedness under Onshore PRC Bank Borrowing not exceeding RMB500,000,000 in aggregate.

For the avoidance of doubt, any Security Interest constituted by the Security Documents may be shared between (i) the Finance Parties and (ii) any party to a derivative transaction entered into with an Obligor in connection with this Agreement, protecting against or benefiting from fluctuations in any rate or price pursuant to the terms of an intercreditor agreement in form and substance satisfactory to the Facility Agent, Security Trustee and all Lenders at such time.

Disposals

Except as provided below, no member of the Group may, and the Company shall procure that no member of the Group will, either in a single transaction or in a series of transactions and whether related or not, sell, transfer, or otherwise dispose of all or any part of its present or future assets.

Paragraph (a) does not apply to any sale, transfer or disposal:

made on arm’s length commercial terms and for reasonable consideration and in the ordinary course of trading of the disposing entity, provided that:

the higher of the market value and consideration receivable for such sale, transfer or disposal (when aggregated with the higher of the market value and consideration for any other sale, transfer or disposal allowed under this Subclause) does not exceed HK$350,000,000 or its equivalent, provided that the Company shall inform the Facility Agent of any such sale, transfer or disposal of which the higher of the market value and consideration receivable exceeds HK$200,000,000 or its equivalent within 30 days of the completion of such sale, transfer or disposal; and

no Default or Event of Default would occur as a result of such sale, transfer or disposal;

of trading stock or cash, machinery, raw materials or other current assets made by any member of the Group in the ordinary course of trading of the Group;

by a member of the Group which is an Obligor to another member of the Group which is an Obligor;

by a member of the Group which is an Obligor to any other member of the Group of any machinery, raw materials and trading stock, for arm’s length consideration and commercial terms and for the ordinary course of business of the Group;

of any cash for the purpose of capital injections to be made by any member of the Group to another member of the Group, which is for the ordinary course of business of the Group;

by a member of the Group which is not an Obligor and not incorporated in the PRC to another member of the Group which is not an Obligor and not incorporated in the PRC;

by a member of the Group which is incorporated in the PRC to another member of the Group which is incorporated in the PRC;

of used, worn out, obsolete or surplus property by any Obligor in the ordinary course of business and the abandonment or other disposition of intellectual property that is, in the reasonable judgment of the Company, no longer economically practicable to maintain or useful in the conduct of the business of the Obligors taken as a whole; or

related to any amalgamation, demerger, merger or corporate reconstruction in compliance with Subclause 22.10 (Mergers).

Financial Indebtedness

Except as provided below, no Obligor may, and the Company shall procure that no member of the Group will incur or permit to be outstanding any Financial Indebtedness.

Paragraph (a) does not apply to:

any Financial Indebtedness incurred under the Finance Documents or the Original Facility Agreement;

any Financial Indebtedness incurred pursuant to a transaction permitted under Subclause 22.12 (Loans and Guarantees);

any Financial Indebtedness incurred by any member of the Group in relation to any loans or other credit made or granted by its shareholder(s), the Parent or any of the Parent’s Subsidiaries;

any Onshore PRC Bank Borrowing of a member of the Group not exceeding, when aggregated with the Onshore PRC Bank Borrowings of all other members of the Group, RMB500,000,000 or its equivalent at any time;

any derivative transaction protecting against or benefiting from fluctuations in any rate or price entered into (A) in connection with this Agreement; or (B) in the ordinary course of business of the relevant member of the Group but not, in any event, for speculative purposes;

Financial Indebtedness the details of which are set out in Part 2 (Existing Loans and Guarantees) and Part 3 (Existing Letters of Credit) of Schedule 5 (Existing Security Interest, Loans, Guarantees and Letters of Credit);

any Financial Indebtedness incurred under any counter-indemnity obligation in respect of any guarantee granted by a bank or financial institution in favour of a governmental body or authority or public utilities company in Hong Kong, provided that the amount of such Financial Indebtedness shall not at any time exceed the US$ equivalent of HK$10,000,000 calculated on the basis of the Agent’s Spot Rate of Exchange on the date of calculation by such member of the Group;

any Financial Indebtedness incurred in connection with the forward sale of non-HK Dollar cheques by a member of the Group to a bank or financial institution, provided that the amount of such Financial Indebtedness shall not at any time exceed the US$ equivalent of HK$30,000,000 calculated on the basis of the Agent’s Spot Rate of Exchange on the date of calculation by such member of the Group; and

any Financial Indebtedness incurred with the prior written consent of the Facility Agent (acting on the instructions of the Majority Lenders).

Change of business

The Company shall use its reasonable efforts to procure that no substantial change is made to the nature and scope of the business of the Parent from that carried on at the date of this Agreement other than changes that are reasonably related, ancillary or complimentary thereto.

The Company and each Borrower must ensure that no substantial change is made to the general nature of the business of the Company or the Group from that carried on at the date of this Agreement other than changes that are reasonably related, ancillary or complimentary thereto.

Application of FATCA

Mergers

No Obligor shall, and the Company shall procure that no member of the Group will, enter into any amalgamation, demerger, merger or corporate reconstruction.

Paragraph (a) above does not apply to any amalgamation, demerger, merger or corporate reconstruction:

between members of the Group which are not Obligors and not incorporated in the PRC;

between members of the Group incorporated in the PRC; or

resulting in one Obligor which is a member of the Group merging into another Obligor which is a member of the Group, provided that (1) the surviving entity continues to be bound by the Finance Documents as an Obligor, (2) in the opinion of the Facility Agent (acting on the instructions of the Majority Lenders) the creditworthiness of the relevant Obligor has not been adversely affected as a result of the merger and (3) the Finance Documents remain in full force and effect notwithstanding the merger.

Dividends and distributions

The Borrowers shall ensure that there are no restrictions on each of its Subsidiaries to declare, make or pay any dividend, charge, fee or other distribution (or interest on any unpaid dividend, charge, fee or other distribution), whether in cash or in kind.

The Company shall not declare, make or pay any dividend, charge, fee or other distribution if as a result of such declaration or payment a Default would occur.

Loans and Guarantees

No Obligor shall, and the Company shall ensure that no member of the Group will, make any loans, grant any credit (save in the ordinary course of trading) or give any guarantee or indemnity (except as required under any of the Finance Documents or in the ordinary course of trading) to or for the benefit of any person or otherwise voluntarily assume any liability, whether actual or contingent, in respect of any obligation of any person.