China Security & Surveillance Technology, Inc.
|
(Name of Issuer)
|
Common Stock, Par Value $0.0001 Per Share
|
(Title of Class of Securities)
|
16942J105
|
(CUSIP Number)
|
Tu Guo Shen
13/F, Shenzhen Special Zone Press Tower
Shennan Road
Futian, Shenzhen, 518034
China
(86) 755-8351-0888
With copies to:
Michael V. Gisser
Peter X. Huang
Skadden, Arps, Slate, Meagher & Flom LLP
30th Floor, China World Office 2
No. 1, Jianguomenwai Avenue
Beijing 100004
China
(86) 10 6535-5500
|
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
|
April 20, 2011
|
(Date of Event Which Requires Filing of this Statement)
|
*
|
The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
|
CUSIP No.
|
16942J105 |
1.
|
NAME OF REPORTING PERSON: WHITEHORSE TECHNOLOGY LIMITED
|
||
2.
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) T
(b) £
|
||
3.
|
SEC USE ONLY
|
||
4.
|
SOURCE OF FUNDS
BK, SC
|
||
5.
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): £
|
||
6.
|
CITIZENSHIP OR PLACE OF ORGANIZATION
BRITISH VIRGIN ISLANDS
|
||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
WITH
|
7.
|
SOLE VOTING POWER
0
|
|
8.
|
SHARED VOTING POWER
18,750,435
|
||
9.
|
SOLE DISPOSITIVE POWER
0
|
||
10.
|
SHARED DISPOSITIVE POWER
18,750,435
|
||
11.
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
18,750,435
|
||
12.
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
£
|
||
13.
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.9%
|
||
14.
|
TYPE OF REPORTING PERSON
CO
|
CUSIP No.
|
16942J105 |
1.
|
NAME OF REPORTING PERSON: TU GUO SHEN
|
||
2.
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) T
(b) £
|
||
3.
|
SEC USE ONLY
|
||
4.
|
SOURCE OF FUNDS
BK, SC
|
||
5.
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): £
|
||
6.
|
CITIZENSHIP OR PLACE OF ORGANIZATION
PEOPLE’S REPUBLIC OF CHINA
|
||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
WITH
|
7.
|
SOLE VOTING POWER
0
|
|
8.
|
SHARED VOTING POWER
18,750,435
|
||
9.
|
SOLE DISPOSITIVE POWER
0
|
||
10.
|
SHARED DISPOSITIVE POWER
21,708,428
|
||
11.
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
21,708,428
|
||
12.
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES1
T
|
||
13.
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
24.2%2
|
||
14.
|
TYPE OF REPORTING PERSON
IN
|
CUSIP No.
|
16942J105 |
1.
|
NAME OF REPORTING PERSON: INTELLIGENT ONE LIMITED
|
||
2.
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) T
(b) £
|
||
3.
|
SEC USE ONLY
|
||
4.
|
SOURCE OF FUNDS
BK, SC
|
||
5.
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): £
|
||
6.
|
CITIZENSHIP OR PLACE OF ORGANIZATION
BRITISH VIRGIN ISLANDS
|
||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
WITH
|
7.
|
SOLE VOTING POWER
0
|
|
8.
|
SHARED VOTING POWER
0
|
||
9.
|
SOLE DISPOSITIVE POWER
0
|
||
10.
|
SHARED DISPOSITIVE POWER
21,708,428
|
||
11.
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
21,708,428
|
||
12.
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES3
T
|
||
13.
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
24.2%4
|
||
14.
|
TYPE OF REPORTING PERSON
CO
|
CUSIP No.
|
16942J105 |
1.
|
NAME OF REPORTING PERSON: RIGHTMARK HOLDINGS LIMITED
|
||
2.
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) T
(b) £
|
||
3.
|
SEC USE ONLY
|
||
4.
|
SOURCE OF FUNDS
BK, SC
|
||
5.
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): £
|
||
6.
|
CITIZENSHIP OR PLACE OF ORGANIZATION
BRITISH VIRGIN ISLANDS
|
||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
WITH
|
7.
|
SOLE VOTING POWER
0
|
|
8.
|
SHARED VOTING POWER
0
|
||
9.
|
SOLE DISPOSITIVE POWER
0
|
||
10.
|
SHARED DISPOSITIVE POWER
21,708,428
|
||
11.
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
21,708,428
|
||
12.
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES5
T
|
||
13.
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
24.2%6
|
||
14.
|
TYPE OF REPORTING PERSON
CO
|
|
Exhibit 7.01
|
Joint Filing Agreement by and among the Reporting Persons dated April 21, 2011
|
|
Exhibit 7.02
|
Agreement and Plan of Merger by and among Rightmark, Merger Sub, the Issuer and Mr. Tu, dated April 20, 2011
|
|
Exhibit 7.03
|
Limited Guaranty by and between Mr. Tu and the Issuer, dated April 20, 2011
|
|
Exhibit 7.04
|
Facility Agreement by and between Rightmark and the Bank, dated April 20, 2011
|
|
Exhibit 7.05
|
Rollover Agreement by and among Rightmark, Intelligent One and the Rollover Shareholders, dated April 20, 2011
|
Tu Guo Shen
|
||
/s/ Tu Guo Shen
|
||
Name:
|
Tu Guo Shen
|
|
Whitehorse Technology Limited
|
||
By:
|
/s/ Tu Guo Shen
|
|
Name:
|
Tu Guo Shen
|
|
Title:
|
Director
|
|
Intelligent One Limited
|
||
By:
|
/s/ Tu Guo Shen
|
|
Name:
|
Tu Guo Shen
|
|
Title:
|
Director
|
|
Rightmark Holdings Limited
|
||
By:
|
/s/ Tu Guo Shen
|
|
Name:
|
Tu Guo Shen
|
|
Title:
|
Director
|
Tu Guo Shen
|
||
/s/ Tu Guo Shen
|
||
Name:
|
Tu Guo Shen
|
|
Whitehorse Technology Limited
|
||
By:
|
/s/ Tu Guo Shen
|
|
Name:
|
Tu Guo Shen
|
|
Title:
|
Director
|
|
Intelligent One Limited
|
||
By:
|
/s/ Tu Guo Shen
|
|
Name:
|
Tu Guo Shen
|
|
Title:
|
Director
|
|
Rightmark Holdings Limited
|
||
By:
|
/s/ Tu Guo Shen
|
|
Name:
|
Tu Guo Shen
|
|
Title:
|
Director
|
ARTICLE I THE MERGER
|
2
|
|
1.1
|
The Merger
|
2
|
1.2
|
Closing
|
2
|
1.3
|
Effective Time
|
2
|
1.4
|
Effects of the Merger
|
2
|
1.5
|
Effect on Capital Stock
|
3
|
1.6
|
Stock-Based Awards and Warrants
|
3
|
1.7
|
Dissenting Shares
|
4
|
1.8
|
Changes in Company Common Stock
|
5
|
1.9
|
Certificate of Incorporation and Bylaws of the Surviving Corporation
|
5
|
1.10
|
Directors and Officers of the Surviving Corporation
|
5
|
ARTICLE II DELIVERY OF MERGER CONSIDERATION
|
5
|
|
2.1
|
Paying Agent
|
5
|
2.2
|
Exchange Procedures
|
6
|
2.3
|
Termination of Exchange Fund
|
7
|
2.4
|
Lost, Stolen or Destroyed Certificates
|
7
|
2.5
|
Transfer Books
|
8
|
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY
|
8
|
|
3.1
|
Organization and Qualification
|
8
|
3.2
|
Subsidiaries
|
9
|
3.3
|
Authorization, Special Committee and Fairness
|
10
|
3.4
|
No Conflicts
|
11
|
3.5
|
Capitalization
|
11
|
3.6
|
Consents and Approvals
|
12
|
3.7
|
Company SEC Reports; Financial Statements
|
12
|
3.8
|
Material Changes; Undisclosed Events, Liabilities or Developments
|
13
|
3.9
|
Legal Proceedings
|
13
|
3.10
|
Compliance
|
14
|
3.11
|
Regulatory Permits
|
14
|
3.12
|
Title to Assets
|
14
|
3.13
|
Patents and Trademarks
|
15
|
3.14
|
Insurance
|
15
|
3.15
|
Contracts
|
15
|
3.16
|
Sarbanes-Oxley; Internal Accounting Controls
|
16
|
3.17
|
Company Information
|
16
|
3.18
|
Reserved
|
16
|
3.19
|
Tax Status
|
16
|
3.20
|
Environmental Matters
|
17
|
3.21
|
Disclosure Letter
|
17
|
3.22
|
Application of Takeover Protections
|
17
|
3.23
|
Reserved
|
17
|
3.24
|
No Other Representations or Warranties
|
17
|
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
|
18
|
|
4.1
|
Corporate Organization
|
18
|
4.2
|
Authorization
|
18
|
4.3
|
No Conflicts
|
19
|
4.4
|
Capitalization
|
19
|
4.5
|
Consents and Approvals
|
20
|
4.6
|
Operation and Ownership of Parent, Merger Sub and Intelligent One
|
20
|
4.7
|
Legal Proceedings
|
20
|
4.8
|
Parent Information
|
20
|
4.9
|
Financing
|
21
|
4.10
|
Broker's Fees
|
21
|
4.11
|
Limited Guaranty
|
21
|
4.12
|
Solvency
|
22
|
4.13
|
Interest in Competitors
|
22
|
4.14
|
Certain Actions
|
22
|
4.15
|
Buyer Group Contracts
|
23
|
4.16
|
Independent Investigation
|
23
|
4.17
|
Non-Reliance on Company Estimates
|
23
|
4.18
|
No Other Representations or Warranties
|
23
|
ARTICLE V COVENANTS RELATING TO CONDUCT OF BUSINESS
|
24
|
|
5.1
|
Conduct of Business Prior to the Effective Time
|
24
|
5.2
|
Company Forbearances
|
24
|
5.3
|
Parent Forbearances
|
26
|
ARTICLE VI ADDITIONAL AGREEMENTS
|
26
|
|
6.1
|
Proxy Statement and Schedule 13E-3; Stockholder Approval
|
26
|
6.2
|
Reasonable Best Efforts
|
27
|
6.3
|
Access to Information
|
28
|
6.4
|
Reserved
|
29
|
6.5
|
Indemnification; Advancement of Expenses; Exculpation and Insurance
|
29
|
6.6
|
Stock Exchange Delisting
|
31
|
6.7
|
No Solicitation
|
31
|
6.8
|
Notification of Certain Matters
|
35
|
6.9
|
Financing
|
35
|
6.10
|
Takeover Statutes
|
37
|
6.11
|
Resignations
|
37
|
6.12
|
Participation in Litigation
|
37
|
6.13
|
Publicity
|
37
|
6.14
|
Merger Sub
|
38
|
6.15
|
Knowledge of Inaccuracies
|
38
|
6.16
|
Employee Matters
|
38
|
ARTICLE VII CONDITIONS PRECEDENT
|
39
|
|
7.1
|
Conditions to Each Party's Obligation To Effect the Merger
|
39
|
7.2
|
Conditions to Obligations of Parent and Merger Sub
|
39
|
7.3
|
Conditions to Obligations of the Company
|
40
|
ARTICLE VIII TERMINATION AND AMENDMENT
|
40
|
|
8.1
|
Termination
|
40
|
8.2
|
Effect of Termination
|
42
|
8.3
|
Fees and Expenses
|
42
|
8.4
|
Amendment
|
44
|
8.5
|
Extension; Waiver
|
44
|
ARTICLE IX GENERAL PROVISIONS
|
45
|
|
9.1
|
Nonsurvival of Representations, Warranties and Agreements
|
45
|
9.2
|
Notices
|
45
|
9.3
|
Interpretation
|
46
|
9.4
|
Severability
|
46
|
9.5
|
Entire Agreement
|
47
|
9.6
|
Governing Law; Jurisdiction
|
47
|
9.7
|
Assignment; Third Party Beneficiaries
|
47
|
9.8
|
Specific Performance
|
47
|
9.9
|
WAIVER OF JURY TRIAL
|
48
|
9.10
|
Counterparts
|
48
|
Section
|
Section
|
|||
2006 Warrant
|
1.6(b)
|
Facility Agreement
|
4.9
|
|
2008 Warrant
|
1.6(b)
|
Filings
|
3.6
|
|
Acceptable Confidentiality Agreement
|
6.7(a)
|
Financing
|
4.9
|
|
Affiliate
|
3.8
|
GAAP
|
3.7(b)
|
|
Agreement
|
Preamble
|
Go-Shop Period End Date
|
6.7(a)
|
|
Alternative Financing Agreements
|
6.9(a)
|
Governmental Entity
|
3.6
|
|
Alternative Financings
|
6.9(a)
|
Indebtedness
|
4.12
|
|
Alternative Transaction Proposal
|
6.7(i)(i)
|
Indemnified Parties
|
6.5(a)
|
|
Business Day
|
1.2
|
Insolvent
|
4.12
|
|
Buyer Group Contracts
|
4.15
|
Intellectual Property Rights
|
3.13
|
|
Buyer Group Parties
|
4.15
|
Intelligent One
|
4.4(c)
|
|
Certificate
|
1.5(a)
|
Judgment
|
3.9
|
|
Certificate of Merger
|
1.3
|
Law
|
3.3(a)
|
|
Change of Recommendation
|
6.7(e)
|
Liens
|
3.2
|
|
Closing
|
1.2
|
Limited Guaranty
|
Recitals
|
|
Closing Date
|
1.2
|
Material Adverse Effect
|
3.1(b)
|
|
Company
|
Preamble
|
Material Permits
|
3.11
|
|
Company Acquisition Agreement
|
6.7(e)
|
Merger
|
Recitals
|
|
Company Board
|
Recitals
|
Merger Consideration
|
1.5(a)
|
|
Company Board Recommendation
|
Recitals
|
Merger Sub
|
Preamble
|
|
Company Bylaws
|
3.1(a)
|
Merger Sub Common Stock
|
1.5(c)
|
|
Company Certificate
|
3.1(a)
|
Notice of Superior Proposal
|
6.7(f)
|
|
Company Common Stock
|
1.5(a)
|
NYSE
|
3.3(a)(iii)
|
|
Company Contract
|
3.15(a)
|
Parent
|
Preamble
|
|
Company Preferred Stock
|
3.5(a)
|
Parent Material Adverse Effect
|
4.1(b)
|
|
Company Restricted Stock
|
1.6(a)
|
Parent Termination Fee
|
8.3(c)
|
|
Company SEC Reports
|
3.7(a)
|
Parties
|
Preamble
|
|
Company Termination Fee
|
8.3(b)
|
Paying Agent
|
2.1
|
|
Company Warrant
|
1.6(b)
|
Person
|
2.2(a)
|
|
Confidentiality Agreement
|
6.3(b)
|
PRC
|
3.25(a)
|
|
D&O Premium
|
6.5(c)
|
Proceeding
|
3.1(a)
|
|
Debt Financing Sources
|
6.9(g)(ii)
|
Proxy Statement
|
3.6
|
|
DGCL
|
Recitals
|
Regulatory Approvals
|
3.6
|
|
Disclosure Letter
|
3.21
|
Representatives
|
6.7(b)
|
|
Dissenting Shares
|
1.7(a)
|
Rollover Agreement
|
Recitals
|
|
Effective Time
|
1.3
|
Rollover Holders
|
Recitals
|
|
End Date
|
8.1(c)(i)
|
Rollover Shares
|
Recitals
|
|
Environmental Laws
|
3.20
|
SEC
|
3.6
|
|
Equity Incentive Plan
|
1.6(a)
|
Securities Act
|
3.7(a)
|
|
Evaluation Date
|
3.16
|
Solicited Person
|
6.7(a)
|
|
Exchange Act
|
3.7(a)
|
Special Committee
|
Recitals
|
|
Exchange Fund
|
2.1
|
Stockholder Approval
|
3.3(c)(ii)
|
|
Excluded Party
|
6.7(b)
|
Stockholders' Meeting
|
3.17
|
Subsidiary
|
3.2
|
Terminate Alternative Transaction Proposal
|
6.7(b)
|
|
Superior Proposal
|
6.7(i)(ii)
|
Total Common Stock Consideration
|
1.5(a)
|
|
Surviving Corporation
|
Recitals
|
Warrant Payments
|
1.6(b)
|
|
Takeover Statute
|
3.22
|
RIGHTMARK HOLDINGS LIMITED
|
||
By:
|
||
Name:
|
||
Title:
|
||
RIGHTMARK MERGER SUB LIMITED
|
||
By:
|
||
Name:
|
||
Title:
|
||
CHINA SECURITY & SURVEILLANCE TECHNOLOGY, INC.
|
||
By:
|
||
Name:
|
||
Title:
|
||
Solely for the purpose of agreeing to Section 6.15 of this Agreement
|
||
GUOSHEN TU
|
||
|
i.
|
complete all requisite filings or registrations with SAFE with regard to any change of his outbound investment in Offshore Companies as required under applicable laws, including but not limited to injection of assets or equity into Offshore Companies from the PRC, offshore equity financing, increase or deduction of investment, equity transfer or swap, merger or acquisition, long term equity investment, loan investment, or provision of security to an external party; and
|
|
ii.
|
ensure that his foreign exchange income from the profits, dividends and bonuses and capital gain of Offshore Companies shall be repatriated to the PRC within one hundred eighty (180) days from the date of receipt; and
|
CHINA SECURITY & SURVEILLANCE TECHNOLOGY, INC.
|
|||
By:
|
|||
Name:
|
|||
Title:
|
|
|
GUOSHEN TU
|
1.
|
DEFINITIONS AND INTERPRETATION
|
1
|
2.
|
THE FACILITY
|
16
|
3.
|
PURPOSE
|
16
|
4.
|
CONDITIONS OF UTILISATION
|
16
|
5.
|
UTILISATION
|
18
|
6.
|
REPAYMENT
|
19
|
7.
|
ILLEGALITY, VOLUNTARY PREPAYMENT AND CANCELLATION
|
19
|
8.
|
MANDATORY PREPAYMENT
|
21
|
9.
|
INTEREST
|
22
|
10.
|
INTEREST PERIODS
|
23
|
11.
|
CHANGES TO THE CALCULATION OF INTEREST
|
23
|
12.
|
FEES
|
24
|
13.
|
TAX GROSS-UP AND INDEMNITIES
|
25
|
14.
|
INCREASED COSTS
|
27
|
15.
|
OTHER INDEMNITIES
|
28
|
16.
|
MITIGATION BY THE LENDER
|
29
|
17.
|
COSTS AND EXPENSES
|
29
|
18.
|
REPRESENTATIONS
|
31
|
19.
|
INFORMATION UNDERTAKINGS
|
37
|
20.
|
FINANCIAL COVENANTS
|
40
|
21.
|
GENERAL UNDERTAKINGS
|
42
|
22.
|
EVENTS OF DEFAULT
|
51
|
23.
|
CHANGES TO THE LENDER
|
56
|
24.
|
CHANGES TO THE BORROWER
|
57
|
25.
|
PAYMENT MECHANICS
|
59
|
26.
|
SET-OFF
|
60
|
27.
|
NOTICES
|
61
|
28.
|
CALCULATIONS AND CERTIFICATES
|
62
|
29.
|
PARTIAL INVALIDITY
|
62
|
30.
|
REMEDIES AND WAIVERS
|
62
|
31.
|
AMENDMENTS AND WAIVERS
|
63
|
32.
|
COUNTERPARTS
|
63
|
33.
|
GOVERNING LAW
|
64
|
34.
|
ENFORCEMENT
|
64
|
SCHEDULE 1 CONDITIONS PRECEDENT
|
65
|
|
SCHEDULE 2 UTILISATION REQUEST
|
68
|
|
SCHEDULE 3 FORM OF COMPLIANCE CERTIFICATE
|
69
|
|
SCHEDULE 4 DOCUMENTS REQUIRED TO BE DELIVERED BY THE NEW BORROWER
|
70
|
(1)
|
Rightmark Holdings Limited, a BVI Business Company incorporated in the British Virgin Islands with limited liability whose registered office is at Palm Grove House, P.O. Box 438, Road Town, Tortola, British Virgin Islands as borrower (the “Borrower”); and
|
(2)
|
China Development Bank Corporation Hong Kong Branch, a company incorporated in the People’s Republic of China and registered as a non-Hong Kong company under Part XI of the Companies Ordinance (Cap. 32 of The Laws of Hong Kong) with company number F0017015, with its principal place of business in Hong Kong at Suite 3307-3315 33/F, One International Finance Centre, 1 Harbour View Street, Central, Hong Kong as lender (the “Lender”).
|
1.
|
DEFINITIONS AND INTERPRETATION
|
1.1
|
Definitions
|
1
|
|
(a)
|
substantially in the form agreed by the Borrower and the Lender prior to the Signing Date; or
|
|
(b)
|
in form and substance acceptable to the Borrower and the Lender each acting reasonably.
|
|
(a)
|
an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation, lodgement or registration; or
|
|
(b)
|
in relation to anything which will be fully or partly prohibited or restricted by law if a Governmental Agency intervenes or acts in any way within a specified period after lodgement, filing, registration or notification, the expiry of that period without intervention or action.
|
|
(a)
|
the interest which the Lender should have received pursuant to the terms of this Agreement for the period from the date of receipt of all or any part of the Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
|
|
(b)
|
the amount which the Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the London interbank market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
|
|
(a)
|
in relation to the determination of any interest rate, London;
|
|
(b)
|
in relation to any payment or purchase of US Dollars, New York; and
|
2
|
|
(c)
|
for all other purposes, Hong Kong.
|
|
(a)
|
the Sponsor ceases to beneficially hold (whether directly or indirectly),
|
|
(i)
|
subject to paragraph (ii) below, the entire Equity Interest of the Borrower;
|
|
(ii)
|
if, after the Acquisition Effective Time, the Borrower has issued any Equity Interests and provided that the proceeds of such issuance are applied in accordance with Clause 8 (Mandatory Prepayments), at least 70% of the entire Equity Interest of the Borrower; and/or
|
|
(b)
|
Mr. Tu ceases to beneficially hold (whether directly or indirectly) at least 60% of the entire Equity Interest of the Borrower; and/or
|
|
(c)
|
at or after the Acquisition Effective Time, the Borrower ceases to beneficially hold (whether directly or indirectly),
|
|
(i)
|
subject to paragraph (ii) below, the entire Equity Interest of the Target and other Group Members;
|
|
(ii)
|
if, after the Acquisition Effective Time, the Target or any other Group Member has issued any Equity Interests and provided that the proceeds of such issuance are applied in accordance with Clause 8 (Mandatory Prepayments), at least 70% of the entire Equity Interest of the Target or that Group Member; and/or
|
|
(d)
|
the Sponsor ceases to control directly or indirectly the Borrower or, at or after the Acquisition Effective Time, other Group Member. For the purposes of this definition, “control” of a person means the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:
|
|
(i)
|
appoint or remove all, or the majority, of the directors or other equivalent officers of that person; or
|
|
(ii)
|
give directions with respect to the management, financial or other policies of that person with which the directors or other equivalent officers of that person are obliged to comply.
|
3
|
|
(a)
|
air (including, without limitation, air within natural or man-made structures, whether above or below ground);
|
|
(b)
|
water (including, without limitation, territorial, coastal and inland waters, water under or within land and water in drains and sewers); and
|
|
(c)
|
land (including, without limitation, land under water).
|
|
(a)
|
the pollution or protection of the Environment;
|
|
(b)
|
the conditions of the workplace; or
|
|
(c)
|
the generation, handling, storage, use, release or spillage of any substance which, alone or in combination with any other, is capable of causing harm to the Environment, including, without limitation, any waste.
|
4
|
|
(a)
|
this Agreement,
|
|
(b)
|
the Personal Guarantee;
|
|
(c)
|
the Deed of Undertaking;
|
|
(d)
|
each Security Document, and
|
|
(e)
|
any other document designated as such by the Lender and the Borrower.
|
|
(a)
|
moneys borrowed and debit balances at banks and other financial institutions;
|
|
(b)
|
any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;
|
|
(c)
|
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
|
5
|
|
(d)
|
the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with Applicable GAAP, be treated as a finance or capital lease;
|
|
(e)
|
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
|
|
(f)
|
any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing;
|
|
(g)
|
any Treasury Transaction (and, when calculating the value of that Treasury Transaction , only the marked to market value (or, if any actual amount is due as a result of the termination or close out of the Treasury Transaction, the amount) shall be taken into account);
|
|
(h)
|
any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and
|
|
(i)
|
the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above.
|
6
|
|
(a)
|
any patents, trade marks, service marks, designs, business names, copyrights, database rights, design rights, domain names, moral rights, inventions, confidential information, knowhow and other intellectual property rights and interests (which may now or in the future subsist), whether registered or unregistered; and
|
|
(b)
|
the benefit of all applications and rights to use such assets of each Group Member (which may now or in the future subsist).
|
|
(a)
|
the principle that equitable remedies are remedies which may be granted or refused at the discretion of the court, the limitation of enforcement by laws relating to bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria, administration and other laws generally affecting the rights of creditors;
|
|
(b)
|
the time barring of claims under applicable limitation laws, the possibility that an undertaking to assume liability for or to indemnify a person against non-payment of stamp duty may be void, or subject to defences of set-off or counterclaim;
|
|
(c)
|
the Personal Guarantee, to the extent that the laws of PRC are applicable, shall be subject to the “Relevant Approvals” under and as defined in the Deed of Undertaking; and
|
|
(d)
|
any matters which are set out as qualifications or reservations as to matters of law of general application in any legal opinion delivered pursuant to Clause 4 (Conditions of Utilisation).
|
|
(a)
|
the Screen Rate; or
|
|
(b)
|
(if no Screen Rate is available for US Dollars for the Interest Period of that Loan) the rate at which the Lender is able to obtain comparable amounts of US Dollars from whatever source it may reasonably select for a period comparable to the relevant Interest Period,
|
7
|
|
(a)
|
with respect to the Borrower and Merger Sub only, any circumstances constituting a Default under any of Clause 22.1 (Non-Payment), Clause 22.3 (Other obligations) insofar as it relates to a breach of Clauses 21.8 (Debt Service Reserve Account and Operating Account); 21.9 (Negative pledge); 21.10 (Holding Companies); 21.13 (Disposals); 21.14 (Loans out); 21.15 (No Guarantees or indemnities); and 21.17 (Financial Indebtedness), Clause 22.4 (Misrepresentation) insofar as it relates to a breach of any Major Representation, Clause 22.6 (Insolvency), Clause 22.7 (Insolvency proceedings), Clause 22.8 (Creditors’ process), Clause 22.9 (Unlawfulness and invalidity), Clause 22.12 (Expropriation), Clause 22.13 (Repudiation and rescission of agreements) or paragraph (a) or (b) of Clause 22.14 (Litigation); or
|
|
(b)
|
the occurrence of any event or circumstance permitting the Borrower or Merger Sub to terminate its obligations under the Acquisition Agreement.
|
|
(a)
|
at all times from and including the Utilisation Date to and including the date falling thirty-six (36) Months after the Utilisation Date, three point five per cent (3.5%) per annum; and
|
|
(b)
|
at all times thereafter, four point five per cent (4.5%) per annum.
|
|
(a)
|
the business, operations, property, condition (financial or otherwise) or prospects of (i) the Borrower, (ii) the Group taken as a whole, or (iii) the Target Group taken as a whole; or
|
|
(b)
|
the ability of any Obligor to perform its obligations under the Finance Documents to which it is a party (in case of each Personal Guarantor, subject to paragraph (c) of the definition of “Legal Reservations”); or
|
|
(c)
|
the validity or enforceability of, the effectiveness of any Finance Document or the rights or remedies of the Lender under any of the Finance Documents.
|
8
|
|
(a)
|
(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
|
|
(b)
|
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and
|
|
(c)
|
if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.
|
|
(a)
|
of trading stock or cash made by any Group Member in the ordinary course of trading of the disposing entity;
|
9
|
|
(b)
|
of any asset by a Group Member (the “Disposing Company”) to another Group Member (the “Acquiring Company”), but if the Disposing Company had given Transaction Security over the asset, the Acquiring Company must give equivalent Transaction Security over that asset;
|
|
(c)
|
of assets in exchange for other assets comparable or superior as to type, value and quality;
|
|
(d)
|
of obsolete or redundant vehicles, plant and equipment for cash;
|
|
(e)
|
arising as a result of any Permitted Security; or
|
|
(f)
|
made with the prior written consent of the Lender.
|
|
(a)
|
the Existing Target Facilities; or
|
|
(b)
|
any refinancing of the Existing Target Facilities provided that:
|
|
(i)
|
the borrower and/or obligors under such refinancing are the same borrower and/or obligors under the Existing Target Facilities being refinanced;
|
|
(ii)
|
such refinancing is provided by the same lender or syndicate of lenders that made available the relevant Existing Target Facility;
|
|
(iii)
|
no prepayment or repayment (whether by way of instalment, mandatory prepayment, set-off or otherwise) may be made in respect of any part of such refinancing on or prior to the date falling six (6) months after the Termination Date;
|
|
(iv)
|
the principal amount of such refinancing is not greater than the principal amount of the relevant Existing Target Facility being refinanced that was outstanding immediately prior to such refinancing;
|
|
(v)
|
the refinancing is unsecured; and
|
|
(vi)
|
the terms of such refinancing are not more favourable to the lender than that of the relevant Existing Target Facility being refinanced.
|
|
(a)
|
Security for Taxes or assessments or other applicable governmental charges or levies;
|
|
(b)
|
Security created or arising by operation of law or created in the ordinary course of trade, including, but not limited to, landlords’ liens and statutory liens of carriers, warehousemen, mechanics, materialmen, vendors and other liens securing amounts which are not more than sixty (60) days overdue or which are being contested in good faith;
|
10
|
|
(c)
|
Security incurred on deposits made in the ordinary course of trade in connection with workers’ compensation, unemployment insurance and other types of social security or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts or undertakings, performance and return of money bonds, and similar obligations;
|
|
(d)
|
rights of set-off of a financial institution with respect to deposits or other accounts of a Group Member held by such financial institution in an amount not to exceed the aggregate amount owed to such financial institution by that Group Member, as the case may be;
|
|
(e)
|
Security on documents and the goods they represent in connection with letters of credit, trade finance and similar transactions entered into in the ordinary course of trade;
|
|
(f)
|
leases, subleases, licences and sublicences granted to third parties in the ordinary course of trade;
|
|
(g)
|
attachment, judgment and other similar Security arising in connection with court proceedings which are effectively stayed while the underlying claims are being contested in good faith by appropriate proceedings; or
|
|
(h)
|
any Security granted or permitted to subsist with the prior written consent of the Lender.
|
11
|
12
|
|
(a)
|
the Borrower Share Mortgage;
|
|
(b)
|
the Target Share Charge;
|
|
(c)
|
any other document evidencing or creating security over any asset to secure any obligation of the Borrower to the Lender under the Finance Documents; or
|
|
(d)
|
any other document designated as such by both the Lender and the Borrower in writing.
|
|
(a)
|
which is controlled, directly or indirectly, by the first mentioned company or corporation;
|
|
(b)
|
more than half the issued share capital of which is beneficially owned, directly or indirectly by the first mentioned company or corporation; or
|
|
(c)
|
which is a Subsidiary of another Subsidiary of the first mentioned company or corporation,
|
13
|
1.2
|
Construction
|
|
(a)
|
Unless a contrary indication appears, any reference in this Agreement to:
|
14
|
|
(i)
|
the “Lender”, the “Borrower” or any “Party” shall be construed so as to include its successors in title, permitted assigns and permitted transferees;
|
|
(ii)
|
“assets” includes present and future properties, revenues and rights of every description;
|
|
(iii)
|
a “Finance Document” or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended or restated (with respect to any Transaction Document, only to the extent permitted by the terms of the Finance Documents);
|
|
(iv)
|
“indebtedness” includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
|
|
(v)
|
a “person” includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);
|
|
(vi)
|
a “regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;
|
|
(vii)
|
a provision of law is a reference to that provision as amended or re-enacted; and
|
|
(viii)
|
a time of day is a reference to Hong Kong time.
|
|
(b)
|
section, Clause and Schedule headings are for ease of reference only.
|
|
(c)
|
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
|
|
(d)
|
A Default (other than an Event of Default) is “continuing” if it has not been remedied or waived and an Event of Default is “continuing” if it has not been waived.
|
|
(e)
|
Where this Agreement specifies an amount in a given currency (the “specified currency”) “or its equivalent”, the “equivalent” is a reference to the amount of any other currency which, when converted into the specified currency utilising the Lender’s spot rate of exchange for the purchase of the specified currency with that other currency at or about 11:00 a.m. on the relevant date, is equal to the relevant amount in the specified currency.
|
15
|
2.
|
THE FACILITY
|
3.
|
PURPOSE
|
3.1
|
Purpose
|
|
(a)
|
towards payment of the Acquisition Consideration;
|
|
(b)
|
towards repayment of the Existing Whitehorse Facility and the Existing Citadel Note; and
|
|
(c)
|
towards payment of the Transaction Costs and any fees described in Clause 12 (Fees).
|
3.2
|
Monitoring
|
4.
|
CONDITIONS OF UTILISATION
|
4.1
|
Initial conditions precedent
|
4.2
|
Further conditions precedent
|
|
(a)
|
Subject to Clause 4.1 (Initial conditions precedent), the Lender will only be obliged to comply with Clause 5.4 (Lender’s obligations) if on the date of the Utilisation Request (in respect of paragraphs (i) and (ii) below) and on the proposed Utilisation Date (in respect of paragraphs (i), (ii), (iii) and (iv) below):
|
|
(i)
|
no Major Default is continuing or would result from the proposed Loan;
|
16
|
|
(ii)
|
all the Major Representations are true;
|
|
(iii)
|
the Lender has received in form and substance satisfactory to it (x) evidence that the Sponsor has completed all steps required of it in order to subscribe for shares in the Borrower and, (y) if the Sponsor is required to make any equity capital contribution in cash to the Borrower pursuant to the Acquisition Documents, evidence that the Sponsor has made irrevocable wire transfers in an aggregate amount equal to such equity capital contribution to the Borrower and that such amount will be applied towards funding part of the Acquisition Consideration in accordance with the Funds Flow Statement; and
|
|
(iv)
|
the Lender has received a letter from the Borrower (in Agreed Form and signed by an authorized signatory) confirming that: (x) the Certificate of Merger has been filed with Secretary of State of the State of Delaware and attaching the stamped Certificate of Merger; (y) the Acquisition Agreement remains in full force and effect and has not been rescinded or repudiated by any party to it; and (z) the Acquisition Effective Time has occurred.
|
|
(b)
|
During the Availability Period (save in circumstances where, pursuant to paragraph (a) above, the Lender is not obliged to comply with Clause 5.4 (Lender’s obligations) and subject as provided in Clause 7.1 (Illegality) and unless any reduction of the Total Commitment is made by the Lender in accordance with Clause 2 (The Facility) or any of the circumstances or events described in Clause 8.1 (Exit) has arisen or occurred), the Lender shall not be entitled to:
|
|
(i)
|
cancel any of the Total Commitment;
|
|
(ii)
|
rescind, terminate or cancel this Agreement or the Facility or exercise any similar right or remedy or make or enforce any claim under the Finance Documents it may have to the extent to do so would prevent or limit the making of the Utilisation;
|
|
(iii)
|
refuse to make the Utilisation;
|
|
(iv)
|
exercise any right of set-off or counterclaim in respect of a Utilisation to the extent that to do so would prevent or limit the making of the Utilisation; or
|
|
(v)
|
cancel, accelerate or cause repayment or prepayment of any amounts owing under this Agreement or under any other Finance Document to the extent that to do so would prevent or limit the making of the Utilisation,
|
17
|
5.
|
UTILISATION
|
5.1
|
Delivery of a Utilisation Request
|
5.2
|
Completion of a Utilisation Request
|
|
(a)
|
The Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
|
|
(i)
|
the proposed Utilisation Date is a Business Day within the Availability Period;
|
|
(ii)
|
the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount); and
|
|
(iii)
|
the proposed Interest Period complies with Clause 10 (Interest Periods).
|
|
(b)
|
Only one Loan may be requested in each Utilisation Request.
|
5.3
|
Currency and amount
|
|
(a)
|
The currency specified in a Utilisation Request must be US Dollars.
|
|
(b)
|
The amount of the proposed Loan must be an amount which is not more than the Total Commitment and which is in integral multiples of US$1,000,000 (or such other amount that the Lender may otherwise agree).
|
5.4
|
Lender’s obligations
|
5.5
|
Cancellation of Commitment
|
18
|
6.
|
REPAYMENT
|
6.1
|
Repayment of Loans
|
|
(a)
|
Subject to Clause 7 (Illegality, Voluntary Prepayment and Cancellation), the Borrower shall repay the Facility on each date specified below (each a “Repayment Date”, by the amount as set out in the table below.
|
Repayment Date
|
Repayment Instalments
|
The date falling 24 Months from the Utilisation Date
|
Five per cent. (5%) of the total outstanding principal amount of the Loan immediately following the Utilisation
|
The date falling 36 Months from the Utilisation Date
|
Ten per cent. (10%) of the total outstanding principal amount of the Loan immediately following the Utilisation
|
The date falling 48 Months from the Utilisation Date
|
Fifteen per cent. (15%) of the total outstanding principal amount of the Loan immediately following the Utilisation
|
The date falling 60 Months from the Utilisation Date
|
Fifteen per cent. (15%) of the total outstanding principal amount of the Loan immediately following the Utilisation
|
The date falling 72 Months from the Utilisation Date
|
Fifteen per cent. (15%) of the total outstanding principal amount of the Loan immediately following the Utilisation
|
The date falling 84 Months from the Utilisation Date
|
Twenty per cent. (20%) of the total outstanding principal amount of the Loan immediately following the Utilisation
|
Termination Date
|
The outstanding principal amount at such time
|
|
(b)
|
All payments made under this Clause 6.1 shall be made together with accrued interest and all other amounts accrued or outstanding under this Agreement.
|
6.2
|
The Borrower may not reborrow any part of the Facility which is repaid.
|
7.
|
ILLEGALITY, VOLUNTARY PREPAYMENT AND CANCELLATION
|
7.1
|
Illegality
|
19
|
|
(a)
|
the Lender shall promptly notify the Borrower upon becoming aware of that event and the Total Commitment will be immediately cancelled; and
|
|
(b)
|
the Borrower shall repay the Loan on the Interest Payment Date next occurring after the Lender has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Borrower (being no earlier than the last day of any applicable grace period permitted by law).
|
7.2
|
Voluntary prepayment of Loan
|
|
(a)
|
The Borrower may, if it gives the Lender not less than five (5) Business Days’ prior notice, prepay the whole or any part of the Loan (but, if in part, being an amount that reduces the amount of the Loan by a minimum amount of US$10,000,000).
|
|
(b)
|
The Loan may only be prepaid after the last day of the Availability Period (or, if earlier, the day on which the Total Commitment in relation thereto is zero).
|
|
(c)
|
Any prepayment under this Clause 7.2 shall satisfy the obligations under Clause 6 (Repayment) in inverse chronological order.
|
7.3
|
Voluntary cancellation
|
7.4
|
Restrictions
|
|
(a)
|
Any notice of cancellation or prepayment given by any Party under this Clause 7 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.
|
|
(b)
|
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.
|
|
(c)
|
The Borrower shall not repay or prepay all or any part of the Loan or cancel all or any part of the Total Commitment except at the times and in the manner expressly provided for in this Agreement.
|
|
(d)
|
No amount of the Total Commitment cancelled under this Agreement may subsequently be reinstated.
|
|
(e)
|
Any amount prepaid in respect of the Facility may not be redrawn.
|
20
|
8.
|
MANDATORY PREPAYMENT
|
8.1
|
Exit
|
|
(a)
|
a Listing;
|
|
(b)
|
a Change of Control;
|
|
(c)
|
a Currency Event; or
|
|
(d)
|
the sale of all or substantially all of the assets of the Group or the Target Group whether in a single transaction or a series of related transactions,
|
8.2
|
Equity Issuance and Distribution Proceeds
|
|
(a)
|
For the purposes of this Clause 8.2:
|
|
(b)
|
Upon receipt of any Equity Issuance Proceeds and/or Distribution Proceeds by a Group Member, the Borrower shall promptly notify the Lender and, at the selection of the Lender which shall be communicated to the Borrower by three (3) Business Days’ (or such other period as agreed by the Lender and the Borrower) prior written notice, the Borrower must immediately prepay the Loan in an amount equal to all or such portion of the relevant proceeds amount as selected by the Lender.
|
|
(c)
|
A prepayment made under this Clause 8.2 shall be applied towards satisfaction of the Borrower’s obligations under Clause 6 (Repayment) in inverse chronological order.
|
21
|
9.
|
INTEREST
|
9.1
|
Calculation of interest
|
|
(a)
|
Margin; and
|
|
(b)
|
LIBOR.
|
9.2
|
Payment of interest
|
9.3
|
Default interest
|
|
(a)
|
If the Borrower fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the Unpaid Sum from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is two per cent. (2%) higher than the rate which would have been payable if the Unpaid Sum had, during the period of non-payment, constituted part of the Loan in the currency of the Unpaid Sum for successive Interest Periods, each of a duration selected by the Lender (acting reasonably). Any interest accruing under this Clause 9.3 shall be immediately payable by the Borrower on demand by the Lender.
|
|
(b)
|
If any Unpaid Sum consists of all or part of the Loan which became due on a day which was not the last day of an Interest Period relating to the Loan:
|
|
(i)
|
the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to the Loan; and
|
|
(ii)
|
the rate of interest applying to the Unpaid Sum during that first Interest Period shall be two per cent. (2%) higher than the rate which would have applied if the Unpaid Sum had not become due.
|
|
(c)
|
Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at the end of each Interest Period applicable to that Unpaid Sum but will remain immediately due and payable.
|
9.4
|
Notification of rates of interest
|
22
|
10.
|
INTEREST PERIODS
|
10.1
|
Interest Periods
|
|
(a)
|
Each Interest Period for the Loan shall be six (6) Months, provided that an Interest Period for the Loan shall not extend beyond the Termination Date.
|
|
(b)
|
Each Interest Period for the Loan shall start on the Utilisation Date or (if already made) on the last day of its preceding Interest Period.
|
10.2
|
Non-Business Days
|
11.
|
CHANGES TO THE CALCULATION OF INTEREST
|
11.1
|
Market disruption
|
|
(a)
|
If a Market Disruption Event occurs in relation to the Loan for any Interest Period, then the rate of interest on the Loan for the Interest Period shall be the percentage rate per annum which is the sum of:
|
|
(i)
|
the Margin; and
|
|
(ii)
|
the rate notified to the Borrower by the Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to the Lender of funding the Loan from whatever source it may reasonably select.
|
|
(b)
|
In this Agreement “Market Disruption Event” means:
|
|
(i)
|
at or about noon on the Quotation Day for the relevant Interest Period the Screen Rate is not available for the relevant currency and Interest Period; or
|
|
(ii)
|
before close of business in London on the Quotation Day for the relevant Interest Period, the Lender notifies the Borrower that the cost to it of obtaining matching deposits in the applicable interbank market would be in excess of LIBOR.
|
|
(c)
|
If a Market Disruption Event occurs, the Lender shall promptly notify the Borrower thereof.
|
11.2
|
Alternative basis of interest or funding
|
23
|
11.3
|
Break Costs
|
|
(a)
|
The Borrower shall, within five (5) Business Days of demand by the Lender, pay to the Lender its Break Costs attributable to all or any part of the Loan or Unpaid Sum being paid by the Borrower on a day other than the last day of an Interest Period for the Loan or Unpaid Sum.
|
|
(b)
|
The Lender shall, as soon as reasonably practicable after a demand by the Borrower, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.
|
12.
|
FEES
|
12.1
|
Up-front fee
|
24
|
13.
|
TAX GROSS-UP AND INDEMNITIES
|
13.1
|
Definitions
|
|
(a)
|
In this Agreement:
|
|
(b)
|
Unless a contrary indication appears, in this Clause 13 a reference to “determines” or “determined” means a determination made in the absolute discretion of the person making the determination.
|
13.2
|
Tax gross-up
|
|
(a)
|
The Borrower shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
|
|
(b)
|
The Borrower shall promptly upon becoming aware that it must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Lender accordingly. Similarly, the Lender shall notify the Borrower on becoming so aware in respect of a payment payable to it.
|
|
(c)
|
If a Tax Deduction is required by law to be made by the Borrower, the amount of the payment due from the Borrower shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
|
|
(d)
|
If the Borrower is required to make a Tax Deduction, the Borrower shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
|
|
(e)
|
Within thirty (30) days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Borrower making that Tax Deduction shall deliver to the Lender evidence reasonably satisfactory to the Lender that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
|
25
|
13.3
|
Tax indemnity
|
|
(a)
|
The Borrower shall, within three (3) Business Days of demand (or such other period as agreed by the Lender and the Borrower), pay to the Lender an amount equal to the loss, liability or cost which the Lender determines will be or has been (directly or indirectly) suffered for or on account of Tax by it in respect of a Finance Document.
|
|
(b)
|
Paragraph (a) above shall not apply with respect to any Tax assessed on the Lender:
|
|
(i)
|
under the law of the jurisdiction in which the Lender is incorporated or, if different, the jurisdiction (or jurisdictions) in which the Lender is treated as resident for tax purposes; or
|
|
(ii)
|
under the law of the jurisdiction in which the Lender’s Facility Office is located in respect of amounts received or receivable in that jurisdiction,
|
|
(c)
|
If the Lender makes or intends to make a claim under paragraph (a) above, it shall promptly notify the Borrower of the event which will give, or has given, rise to the claim.
|
13.4
|
Tax Credit
|
|
(a)
|
a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part, or to that Tax Payment; and
|
|
(b)
|
the Lender has obtained, utilised and retained that Tax Credit,
|
13.5
|
Stamp taxes
|
13.6
|
Indirect tax
|
|
(a)
|
All consideration expressed to be payable under a Finance Document by the Borrower to the Lender shall be deemed to be exclusive of any Indirect Tax. If any Indirect Tax is chargeable on any supply made by any the Lender to the
|
26
|
|
(b)
|
Where a Finance Document requires the Borrower to reimburse the Lender for any costs or expenses, the Borrower shall also at the same time pay and indemnify the Lender against all Indirect Tax incurred by the Lender in respect of the costs or expenses to the extent that the Lender reasonably determines that it is not entitled to credit or repayment in respect of the Indirect Tax.
|
14.
|
INCREASED COSTS
|
14.1
|
Increased costs
|
|
(a)
|
Subject to Clause 14.3 (Exceptions) the Borrower shall, within three (3) Business Days (or such other period as agreed by the Lender and the Borrower) of a demand by the Lender, pay to the Lender the amount of any Increased Costs incurred by it or any of its Affiliates as a result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation or (ii) compliance with any law or regulation made after the date of this Agreement.
|
|
(b)
|
In this Agreement “Increased Costs” means:
|
|
(i)
|
a reduction in the rate of return from the Facility or on the Lender’s (or its Affiliates’) overall capital;
|
|
(ii)
|
an additional or increased cost; or
|
|
(iii)
|
a reduction of any amount due and payable under any Finance Document,
|
14.2
|
Increased cost claims
|
|
(a)
|
If the Lender intends to make a claim pursuant to Clause 14.1 (Increased costs), it shall promptly notify the Borrower of the event giving rise to the claim.
|
|
(b)
|
The Lender shall, as soon as practicable after a demand by the Borrower, provide a certificate confirming the amount of its Increased Costs and a reasonable explanation of such costs.
|
14.3
|
Exceptions
|
|
(a)
|
Clause 14.1 (Increased costs) does not apply to the extent any Increased Cost is:
|
27
|
|
(i)
|
attributable to a Tax Deduction required by law to be made by the Borrower;
|
|
(ii)
|
compensated for by Clause 13.3 (Tax indemnity) (or would have been compensated for under Clause 13.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 13.3 (Tax indemnity) applied); or
|
|
(iii)
|
attributable to the wilful breach by the Lender or its Affiliates of any law or regulation.
|
|
(b)
|
In this Clause 14.3, a reference to a “Tax Deduction” has the same meaning given to the term in Clause 13.1 (Definitions).
|
15.
|
OTHER INDEMNITIES
|
15.1
|
Currency indemnity
|
|
(a)
|
If any sum due from the Borrower under the Finance Documents (a “Sum”), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the “First Currency”) in which that Sum is payable into another currency (the “Second Currency”) for the purpose of:
|
|
(i)
|
making or filing a claim or proof against the Borrower;
|
|
(ii)
|
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
|
(b)
|
The Borrower waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
|
15.2
|
Other indemnities
|
|
(c)
|
any enquiry, investigation, subpoena (or similar order) or litigation with respect to the Borrower or with respect to the transactions contemplated or
|
28
|
|
(d)
|
a failure by the Borrower to pay any amount due under a Finance Document on its due date or in the relevant currency;
|
|
(e)
|
funding, or making arrangements to fund, the Loan requested by the Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of wilful default or gross negligence by the Lender alone); or
|
|
(f)
|
the Loan (or part of the Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower.
|
16.
|
MITIGATION BY THE LENDER
|
16.1
|
Mitigation
|
|
(a)
|
The Lender shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 13 (Tax gross-up and indemnities) or Clause 14 (Increased costs) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.
|
|
(b)
|
Paragraph (a) above does not in any way limit the obligations of the Borrower under the Finance Documents.
|
16.2
|
Limitation of liability
|
|
(a)
|
The Borrower shall indemnify the Lender for all costs and expenses reasonably incurred by the Lender as a result of steps taken by it under Clause 16.1 (Mitigation).
|
|
(b)
|
The Lender is not obliged to take any steps under Clause 16.1 (Mitigation) if, in the opinion of the Lender (acting reasonably), to do so might be prejudicial to it.
|
17.
|
COSTS AND EXPENSES
|
17.1
|
Transaction expenses
|
|
(a)
|
this Agreement and any other documents referred to in this Agreement; and
|
|
(b)
|
any other Finance Documents executed after the date of this Agreement.
|
29
|
17.2
|
Amendment costs
|
17.3
|
Enforcement costs
|
30
|
18.
|
REPRESENTATIONS
|
18.1
|
General
|
18.2
|
Status
|
|
(a)
|
Each Group Member is a corporation, duly incorporated or established and validly existing and in good standing (if applicable) under the laws of its jurisdiction of incorporation or establishment.
|
|
(b)
|
Each Group Member has the power to own its assets and carry on its business as it is being conducted.
|
18.3
|
Binding obligations
|
18.4
|
Non-conflict with other obligations
|
|
(a)
|
(in case of each Personal Guarantor, subject to paragraph (c) of the definition of “Legal Reservations”) any law or regulation applicable to it;
|
|
(b)
|
(in case of each Obligor other than the Personal Guarantors) its constitutional documents; or
|
|
(c)
|
any agreement or instrument binding upon it or any of its assets or constitute a default or termination event (however described) under any such agreement or instrument.
|
18.5
|
Power and authority
|
|
(a)
|
Each Obligor has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Finance Documents to which it is a party and the transactions contemplated by those Finance Documents (in case of each Personal Guarantor, subject to paragraph (c) of the definition of “Legal Reservations”).
|
|
(b)
|
No limit on any Obligor’s powers will be exceeded as a result of the borrowing, granting of security or giving of guarantees or indemnities contemplated by the Finance Documents to which it is a party.
|
31
|
18.6
|
Validity and admissibility in evidence
|
|
(a)
|
All Authorisations (in case of each Personal Guarantor, subject to paragraph (c) of the definition of “Legal Reservations”) required or desirable:
|
|
(i)
|
to enable each Obligor lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party; and
|
|
(ii)
|
to make the Finance Documents to which it is a party admissible in evidence in its jurisdiction of incorporation,
|
|
(b)
|
All Authorisations necessary for the conduct of the business, trade and ordinary activities of the Group Members have been obtained or effected and are in full force and effect if failure to obtain or effect those Authorisations has or might reasonably be expected to have a Material Adverse Effect.
|
18.7
|
Governing law and enforcement
|
|
(a)
|
the choice of governing law of the Finance Documents to which each Obligor is a party will be recognised and enforced in its jurisdiction of incorporation; and
|
|
(b)
|
any judgment obtained in relation to a Finance Document to which each Obligor is a party will be recognised and enforced in its jurisdiction of incorporation.
|
18.8
|
No filing or stamp taxes
|
18.9
|
Deduction of Tax
|
18.10
|
No default
|
|
(a)
|
No Default is continuing or is reasonably likely to result from the making of any Utilisation or the entry into, the performance of, or any transaction contemplated by, any Transaction Document.
|
|
(b)
|
No other event or circumstance is outstanding which constitutes (or, with the expiry of a grace period, the giving of notice, the making of any determination
|
32
|
18.11
|
No misleading information
|
|
(a)
|
All material information provided to the Lender in writing by or on behalf of the Borrower in connection with the Acquisition and/or the Target Group on or before the date of this Agreement and not superseded before that date is accurate and not misleading in any material respect as at the date it was provided, and all projections provided to the Lender in writing on or before the date of this Agreement have been prepared in good faith on the basis of assumptions which were reasonable at the time at which they were prepared and supplied.
|
|
(b)
|
All other written information provided by any Group Member (including its advisers) to the Lender was true, complete and accurate in all material respects as at the date it was provided and is not misleading in any respect.
|
18.12
|
Original Financial Statements
|
|
(a)
|
The Original Financial Statements were prepared in accordance with the Applicable GAAP consistently applied unless expressly disclosed to the Lender in writing to the contrary before the date of this Agreement.
|
|
(b)
|
The Original Financial Statements give a true and fair view of the Target’s consolidated financial condition and results of operations during the relevant financial year.
|
|
(c)
|
There has been no material adverse change in the Target’s assets, business or financial condition since the date of Original Financial Statements.
|
|
(d)
|
The Group’s most recent financial statements delivered pursuant to Clause 19.1 (Financial Statements):
|
|
(i)
|
have been prepared in accordance with the Applicable GAAP as applied to the Original Financial Statements; and
|
|
(ii)
|
give a true and fair view of (if audited) or fairly present (if unaudited) its financial condition as at the end of, and results of operations for, the period to which they relate (consolidated where applicable).
|
|
(e)
|
The budgets and forecasts supplied under this Agreement were arrived at after careful consideration and have been prepared in good faith on the basis of recent historical information and on the basis of assumptions which were reasonable as at the date they were prepared and supplied.
|
|
(f)
|
Since the date of the most recent financial statements delivered pursuant to Clause 19.1 (Financial Statements) there has been no material adverse change in the business, assets or financial condition of the Group.
|
33
|
18.13
|
Pari passu ranking
|
18.14
|
No immunity
|
|
(a)
|
Each Obligor is subject to civil and commercial law with respect to its obligations under the Finance Documents.
|
|
(b)
|
The entry into and performance by each Obligor of the Finance Documents to which it is a party constitute private and commercial acts.
|
|
(c)
|
Neither the Obligors nor any of their respective assets enjoy any right of immunity from set-off, suit, execution, attachment or legal process.
|
18.15
|
No proceedings pending or threatened
|
18.16
|
No breach of laws
|
|
(a)
|
No Group Member has breached any law or regulation which breach has or might reasonably be expected to have a Material Adverse Effect.
|
|
(b)
|
No labour disputes are current or, to the best of its knowledge and belief (having made due and careful enquiry), threatened against any Group Member which have or might reasonably be expected to have a Material Adverse Effect.
|
18.17
|
Environmental laws
|
|
(a)
|
Each Group Member is in compliance with Clause 21.3 (Environmental compliance) and to the best of its knowledge and belief (having made due and careful enquiry) no circumstances have occurred which would prevent such compliance in a manner or to an extent which has or might reasonably be expected to have a Material Adverse Effect.
|
|
(b)
|
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
|
34
|
18.18
|
Taxation
|
|
(a)
|
No Group Member is materially overdue in the filing of any Tax returns or overdue in the payment of any amount of Tax.
|
|
(b)
|
To the best knowledge of each Obligor (after due and careful enquiry), no claims or investigations are being, or are reasonably likely to be, made or conducted against any Group Member with respect to Taxes.
|
|
(c)
|
Each Group Member is resident for Tax purposes only in the jurisdiction of its incorporation.
|
18.19
|
Holding Companies
|
|
(a)
|
the provision of administrative services (excluding treasury services) to other Group Members of a type customarily provided by a holding company to its Subsidiaries;
|
|
(b)
|
ownership of shares in its Subsidiaries, intra-Group debit balances, intra-Group credit balances and other credit balances in bank accounts and cash; or
|
|
(c)
|
any liabilities under the Transaction Documents to which it is a party and professional fees and administration costs in the ordinary course of business as a holding company.
|
18.20
|
Good title to assets
|
18.21
|
Shares
|
18.22
|
Intellectual Property
|
|
(a)
|
is the sole legal and beneficial owner of or has had licensed to it on normal commercial terms all the Intellectual Property which is material in the context of its business and which is required by it in order to carry on its business;
|
|
(b)
|
does not, in carrying on its businesses, infringe any Intellectual Property of any third party in any respect which, if subject to dispute and adversely
|
35
|
|
(c)
|
has taken all formal or procedural actions (including payment of fees) required to maintain any material Intellectual Property owned by it.
|
18.23
|
Group Structure Chart
|
|
(a)
|
Assuming the Acquisition Effective Time has occurred, the Group Structure Chart is true, complete and accurate in all material respects and shows the following information:
|
|
(i)
|
each Group Member and each Target Group Member, including current name and company registration number, its jurisdiction of incorporation and/or establishment, a list of shareholders and indicating whether a company is a dormant subsidiary or is not a company with limited liability; and
|
|
(ii)
|
all minority interests in any Group Member or Target Group Member and any person in which any Group Member or Target Group Member holds shares in its issued share capital or equivalent ownership interest of such person.
|
|
(b)
|
All necessary intra-Group loans, transfers, share exchanges and other steps resulting in the Group structure immediately following the Acquisition Effective Time are set out in the Group Structure Chart and have been or will be taken in compliance with all relevant laws and regulations and all requirements of relevant regulatory authorities.
|
18.24
|
Insurance
|
|
(a)
|
Each Group Member maintains insurances on and in relation to its business and assets against those risks and to the extent usually insured by prudent companies located in the same or similar location and carrying on a similar business.
|
|
(b)
|
All insurances of each Group Member are with reputable independent insurance companies or underwriters
|
18.25
|
Pensions
|
18.26
|
Acquisition Documents, disclosures and other Documents
|
|
(a)
|
The Acquisition Documents contain all the terms of the Acquisition and remain effective.
|
36
|
|
(b)
|
No default under the Acquisition Documents is continuing or is reasonably likely to result from the making of the Loan or the entry into, the performance of, or any transaction contemplated by, any Finance Document.
|
|
(c)
|
To the best of its knowledge, no representation or warranty given by any party to the Acquisition Documents is untrue or misleading in any material respect.
|
18.27
|
Repeating representations and warranties under the Acquisition Documents
|
18.28
|
Margin Stock
|
18.29
|
Investment Company Act
|
18.30
|
Times when representations made
|
|
(a)
|
All the representations and warranties in this Clause 18 are made by the Borrower on the Signing Date and the Acquisition Closing Date.
|
|
(b)
|
The Repeating Representations are deemed to be made by the Borrower on the date of the Utilisation Request, on the Utilisation Date and on the first day of each Interest Period (except that those contained in paragraphs (a) – (c) of Clause 18.12 (Original Financial Statements) will cease to be so made once subsequent financial statements have been delivered under this Agreement).
|
|
(c)
|
Each representation or warranty deemed to be made after the date of this Agreement shall be deemed to be made by reference to the facts and circumstances existing at the date the representation or warranty is deemed to be made.
|
19.
|
INFORMATION UNDERTAKINGS
|
19.1
|
Financial statements
|
37
|
|
(a)
|
as soon as they are available, but in any event within one hundred and twenty (120) days after the end of each of their respective financial years, the audited consolidated financial statements of the Group and the audited consolidated financial statements of the Target Group for that financial year; and
|
|
(b)
|
as soon as they are available, but in any event within ninety (90) days after the end of each half of each of their respective financial years, the unaudited consolidated financial statements of the Group and the unaudited consolidated financial statements of the Target Group for that financial half year.
|
19.2
|
Provision and contents of Compliance Certificates
|
|
(a)
|
The Borrower shall supply to the Lender, with each set of financial statements delivered pursuant to Clause 19.1 (Financial statements) a Compliance Certificate which shall, amongst other things, set out:
|
|
(i)
|
(in reasonable detail) computations as to compliance with Clause 20 (Financial covenants); and
|
|
(ii)
|
where there has been any change in the structure of the Group or Target Group since the provision of the last Group Structure Chart, an updated Group Structure Chart setting out the structure of the Group or Target Group as at the date of the delivery of such Group Structure Chart.
|
|
(b)
|
Each Compliance Certificate shall be signed by a director of the Borrower.
|
19.3
|
Requirements as to financial statements
|
|
(a)
|
Each set of financial statements delivered by the Borrower pursuant to Clause 19.1 (Financial statements) shall be certified by one (1) director of the Borrower as giving a true and fair view of (in the case of annual Financial Statements for any financial year), or fairly representing (in other cases), the financial condition and operations (consolidated where applicable) of the relevant companies as at the date as at which those financial statements were drawn up;
|
|
(b)
|
The Borrower shall procure that each set of financial statements delivered pursuant to Clause 19.1 (Financial statements) is prepared using Applicable GAAP, accounting practices and financial reference periods consistent with those applied in the preparation of the relevant Original Financial Statements unless, in relation to any set of financial statements, (i) it notifies the Lender that there has been a change in such Applicable GAAP, accounting practices or reference periods and (ii) the relevant Auditors deliver to the Lender a description of any change necessary for those financial statements to reflect Applicable GAAP, accounting practices or reference periods upon which the relevant Original Financial Statements were prepared.
|
38
|
|
(c)
|
If the Lender wishes to discuss the financial position of any Group Member with the relevant Auditors, the Lender may notify the Borrower, stating the questions or issues which the Lender wishes to discuss with the Auditors. In this event, the Borrower must ensure that such Auditors are authorised (at the expense of the Borrower):
|
|
(i)
|
to discuss the financial position of that Group Member with the Lender with respect to such questions or issues; and
|
|
(ii)
|
to disclose to the Lender any information which the Lender may reasonably request with respect to such questions or issues.
|
19.4
|
Information: miscellaneous
|
|
(a)
|
all documents dispatched by the Borrower to its creditors generally, or to its shareholder(s), or by the Target to the Borrower, in each case at the same time as they are dispatched;
|
|
(b)
|
promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against any Group Member and arising out of or in connection with the Acquisition and/or the Acquisition Documents;
|
|
(c)
|
promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings (other than those set forth under paragraph (b) above) which are current, threatened or pending against any Group Member, and which, if adversely determined, might reasonably be expected to have a Material Adverse Effect; and
|
|
(d)
|
promptly on request, such further information regarding the financial condition, assets and operations of the Group and/or any Target Group Member.
|
19.5
|
Notification
|
|
(a)
|
The Borrower shall notify the Lender of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence.
|
|
(b)
|
If the Lender reasonably believes a Default has occurred, the Borrower shall, upon a request by the Lender, promptly supply to the Lender a certificate signed by two of its directors or senior officers on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).
|
39
|
19.6
|
“Know your customer” checks
|
|
(a)
|
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement; or
|
|
(b)
|
any change in the status of the Borrower after the date of this Agreement; or
|
|
(c)
|
a proposed assignment or transfer by the Lender of its rights and obligations under this Agreement,
|
20.
|
FINANCIAL COVENANTS
|
20.1
|
Financial Condition
|
|
(a)
|
the Consolidated Tangible Net Worth shall not be less than RMB3,000,000,000; and
|
|
(b)
|
the ratio of the Consolidated Total Liabilities to the Consolidated Tangible Net Worth for such Relevant Period shall not be more than 3.0:1.0; and
|
|
(c)
|
the ratio of Consolidated EBITDA to the Consolidated Finance Charges for such Relevant Period shall not be less than 2.5:1.0;
|
20.2
|
Financial testing
|
40
|
20.3
|
Definitions and Interpretation
|
|
(a)
|
In this Clause 20:
|
|
(i)
|
before deducting any amount attributable to amortisation of goodwill or depreciation of tangible assets;
|
|
(ii)
|
before deducting any Consolidated Finance Charges;
|
|
(iii)
|
before taking into account any items or costs treated as exceptional or extraordinary items; and
|
|
(iv)
|
after deducting the amount of any profit of any Group Member which is attributable to minority interests,
|
|
(i)
|
excluding any such obligations owed to any other Group Member; and
|
|
(ii)
|
including the interest element of leasing and hire purchase payments.
|
41
|
|
(i)
|
any debit balance on the consolidated profit and loss account of the Target Group;
|
|
(ii)
|
(to the extent included) any amount shown in respect of goodwill (including goodwill arising only on consolidation) or other intangible assets of the Target Group;
|
|
(iii)
|
any amount in respect of interests of non-Group members in any Target Group Member subsidiaries;
|
|
(iv)
|
(to the extent included) any provision for deferred taxation;
|
|
(v)
|
(to the extent included) any amounts arising from an upward revaluation of assets made at any time after December 31, 2010; and
|
|
(vi)
|
any amount in respect of any dividend or distribution declared, recommended or made by any Target Group Member to the extent payable to a person who is not a Target Group Member and to the extent such distribution is not provided for in the most recent financial statements,
|
|
(b)
|
Unless otherwise stated therein, all definitions in paragraph (a) above shall be determined and calculated on a consolidated basis with respect to the Group and shall be construed in accordance with Applicable GAAP (if applicable).
|
21.
|
GENERAL UNDERTAKINGS
|
21.1
|
Authorisations
|
|
(a)
|
obtain, comply with and do all that is necessary to maintain in full force and effect; and
|
|
(b)
|
in the case of paragraph (i) and (ii) below, supply certified copies to the Lender of,
|
42
|
|
(i)
|
to enable it to perform its obligations under the Transaction Documents to which it is party,
|
|
(ii)
|
to ensure the legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of any Transaction Document to which it is party, and
|
|
(iii)
|
to carry on its business where failure to do so has or might reasonably be expected to have a Material Adverse Effect.
|
21.2
|
Compliance with laws
|
21.3
|
Environmental compliance
|
|
(a)
|
comply with all Environmental Law;
|
|
(b)
|
obtain, maintain and ensure compliance with all requisite Environmental Permits; and
|
|
(c)
|
implement procedures to monitor compliance with and to prevent liability under any Environmental Law,
|
21.4
|
Environmental claims
|
|
(a)
|
any Environmental Claim which has been commenced or, to the best of such Obligor’s knowledge and belief (after due and careful enquiry), is threatened against any Group Member; and
|
|
(b)
|
any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against any Group Member,
|
43
|
21.5
|
Taxation
|
|
(a)
|
The Borrower shall (and shall ensure that each Group Member will) pay and discharge all Taxes imposed upon it or its assets within the time period allowed without incurring penalties unless and only to the extent that:
|
|
(i)
|
such payment is being contested in good faith;
|
|
(ii)
|
adequate reserves are being maintained for those Taxes; and
|
|
(iii)
|
such payment can be lawfully withheld and failure to pay those Taxes does not have or might reasonably be expected to have a Material Adverse Effect.
|
|
(b)
|
No Group Member shall change its residence for Tax purposes.
|
21.6
|
Merger
|
|
(a)
|
Except for the Acquisition, the Borrower shall not (and shall ensure that no other Group Member will) enter into any amalgamation, demerger, merger, consolidation or corporate reconstruction without the prior consent of the Lender, save that no such prior consent shall be required for a solvent reorganization or restructuring and only to the extent that the same would not and is not reasonably expected to have a Material Adverse Effect on the business, operations, assets, financial condition or operating results of the Target Group taken as a whole, the ability of any Obligor to perform its obligations under the Finance Documents to which it is a party, or the validity or enforceability of any of the Finance Documents (provided that, if so requested by the Lender (acting reasonably), the relevant Obligor shall provide the Lender with legal opinions in respect of such reorganization or restructuring in form and substance satisfactory to it (acting reasonably)).
|
|
(b)
|
The Borrower shall not (and shall ensure that no other Group Member will) settle any litigation, arbitration or administrative proceedings which is arising out of or in connection with the Acquisition and/or the Acquisition Documents and has or might reasonably be expected to have a Material Adverse Effect, without prior consent of the Lender (which shall not be unreasonably withheld).
|
21.7
|
Change of business
|
21.8
|
Debt Service Reserve Account
|
|
(a)
|
The Borrower shall, prior to the Utilisation Date, open, and at all times maintain in its own name, the Debt Service Reserve Account.
|
|
(b)
|
The Borrower shall, promptly upon receipt, deposit all proceeds received from dividends or otherwise (except for any proceeds of the Utilisation and any
|
44
|
|
(c)
|
The Borrower shall ensure that from and including the 30th day prior to each Interest Payment Date or Repayment Date to and including that Interest Payment Date or Repayment Date, the total amount standing to the credit of the Debt Service Reserve Account is no less than the Required Reserve Balance of that Interest Payment date or Repayment Date. The Lender shall on the Utilisation Date, each Interest Payment Date and each Repayment Date notify the Borrower of the Required Reserve Balance for the next Interest Payment Date or Repayment Date; provided that the Lender’s failure to notify the Borrower of the Required Reserve Balance as of a particular date will not release the Borrower from its obligation to retain funds in the Debt Service Reserve Account and the Required Interest Reserve Balance applicable immediately prior to such Interest Payment Date or Repayment Date shall continue to apply until the Lender notifies the Borrower of an alternative Required Reserve Balance.
|
21.9
|
Negative pledge
|
|
(a)
|
No Group Member shall create or permit to subsist any Security over any of its assets.
|
|
(b)
|
No Group Member shall:
|
|
(i)
|
dispose of any of its receivables on recourse terms;
|
|
(ii)
|
dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by any other Group Member;
|
|
(iii)
|
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
|
|
(iv)
|
enter into any other preferential arrangement having a similar effect,
|
|
(c)
|
Paragraphs (a) and (b) above do not apply to any Security or (as the case may be) Quasi-Security, which is:
|
|
(i)
|
Permitted Security;
|
|
(ii)
|
Transaction Security; or
|
45
|
|
(iii)
|
any Security created by an Operating Company (other than a Security over the Equity Interest of any of its Subsidiaries).
|
21.10
|
Holding Companies
|
|
(a)
|
the provision of administrative services (excluding treasury services) to other Group Members of a type customarily provided by a holding company to its Subsidiaries;
|
|
(b)
|
ownership of shares in its Subsidiaries, intra-Group debit balances, intra-Group credit balances and other credit balances in bank accounts and cash; or
|
|
(c)
|
any liabilities under the Transaction Documents to which it is a party and professional fees and administration costs in the ordinary course of business as a holding company.
|
21.11
|
Preservation of assets
|
21.12
|
Arm’s-length terms
|
21.13
|
Disposals
|
|
(a)
|
Except as provided in paragraph (c) below, the Borrower shall not (and shall ensure that no other Group Member will), either in a single transaction or in a series of transactions and whether related or not, dispose of all or any material part of its assets.
|
|
(b)
|
Except as provided in paragraph (c) below, the Borrower shall ensure that no Target Group Member will dispose of any Equity Interest of its Subsidiaries.
|
|
(c)
|
Paragraphs (a) and (b) above do not apply to any disposal:
|
|
(i)
|
which constitutes a Permitted Disposal; or
|
|
(ii)
|
made with the prior written consent of the Lender.
|
46
|
21.14
|
Loans out
|
|
(a)
|
Except as provided below, the Borrower shall not (and shall ensure that no other Group Member will) be the creditor in respect of any Financial Indebtedness.
|
|
(b)
|
Paragraph (a) does not apply to:
|
|
(i)
|
trade credit extended by Group member on normal commercial terms and in the ordinary course of its trading activities; or
|
|
(ii)
|
any deposit placed with a bank or financial institution in accordance with the provisions of the Finance Documents.
|
21.15
|
No Guarantees or indemnities
|
|
(a)
|
Except as permitted under paragraph (b) below, the Borrower shall not (and the Borrower shall ensure that no Group Member will) incur or allow to remain outstanding any guarantee in respect of any obligation of any person.
|
|
(b)
|
Paragraph (a) does not apply to a guarantee which is:
|
|
(i)
|
the endorsement of negotiable instruments in the ordinary course of trade;
|
|
(ii)
|
any performance or similar bond guaranteeing performance by a Group Member under any contract entered into in the ordinary course of trade; or
|
|
(iii)
|
granted under the Finance Documents.
|
21.16
|
Dividends and share redemption
|
|
(a)
|
The Borrower shall ensure that each other Group Member declares the legally permissible amount of dividends and/or distributions in each financial year to enable the Borrower to repay or prepay the Facility in accordance with Clause 8 (Mandatory Prepayment).
|
|
(b)
|
Except as prescribed under paragraph (a) above, the Borrower shall not:
|
|
(i)
|
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) on or in respect of its share capital (or any class of its share capital);
|
|
(ii)
|
repay or distribute any dividend or share premium reserve;
|
|
(iii)
|
pay or allow any Group Member to pay any management, advisory or other fee to or to the order of the Sponsor; or
|
|
(iv)
|
redeem, repurchase, defease, retire or repay any of its share capital or resolve to do so.
|
46
|
21.17
|
Financial Indebtedness
|
|
(a)
|
Except as permitted under paragraph (b) below and under Clause 21.28 (Treasury transactions), the Borrower shall not (and shall ensure that no other Group Member (other than the Operating Companies) will) incur or remain liable under any Financial Indebtedness.
|
|
(b)
|
Paragraph (a) above does not apply to Financial Indebtedness which is:
|
|
(i)
|
Financial Indebtedness under any of the Permitted Facilities;
|
|
(ii)
|
Subordinated Indebtedness incurred by the Borrower; or
|
|
(iii)
|
incurred with the prior written consent of the Lender.
|
21.18
|
Share capital
|
21.19
|
Pari passu ranking
|
21.20
|
Acquisition Documents
|
|
(a)
|
The Borrower shall promptly pay all amounts payable by it under the Acquisition Documents as and when they become due (except to the extent that any such amounts are being contested in good faith by the Borrower and where adequate reserves are set aside for any such payment).
|
|
(b)
|
The Borrower shall take all reasonable and practical steps to preserve and enforce its rights and pursue any claims and remedies arising under the Acquisition Documents.
|
21.21
|
Insurance
|
|
(a)
|
The Borrower shall (and shall ensure that each Group Member will) maintain insurances on and in relation to its business and assets against those risks and to the extent usually insured by prudent companies located in the same or similar location and carrying on a similar business.
|
|
(b)
|
All insurances must be with reputable independent insurance companies or underwriters.
|
47
|
21.22
|
Pensions
|
21.23
|
Access
|
21.24
|
Auditors
|
21.25
|
Intellectual Property
|
|
(a)
|
preserve and maintain the subsistence and validity of the Intellectual Property necessary for the business of the relevant Group Member;
|
|
(b)
|
use reasonable endeavours to prevent any infringement in any material respect of the Intellectual Property;
|
|
(c)
|
make registrations and pay all registration fees and taxes necessary to maintain the Intellectual Property in full force and effect and record its interest in that Intellectual Property;
|
|
(d)
|
not use or permit the Intellectual Property to be used in a way or take any step or omit to take any step in respect of that Intellectual Property which may materially and adversely affect the existence or value of the Intellectual Property or imperil the right of any Group Member to use such property; and
|
|
(e)
|
not discontinue the use of the Intellectual Property,
|
48
|
21.26
|
Amendments
|
|
(a)
|
The Borrower shall not (and shall ensure that no Group Member will) amend, vary, novate, supplement, supersede, waive or terminate any term of a Transaction Document or any other document delivered to the Lender pursuant to Clause 4.1 (Initial conditions precedent) except:
|
|
(i)
|
in accordance with the provisions of Clause 31 (Amendments and Waivers);
|
|
(ii)
|
prior to or on the Acquisition Closing Date, with the prior written consent of the Lender; or
|
|
(iii)
|
after the Acquisition Closing Date, in a way which could not be reasonably expected materially and adversely to affect the interests of the Lender.
|
|
(b)
|
The Borrower shall promptly supply to the Lender a copy of any document relating to any of the matters referred to in paragraphs (i) to (iii) above.
|
21.27
|
No restriction on dividends
|
21.28
|
Treasury transactions
|
21.29
|
No restriction on share transfer
|
21.30
|
Delisting
|
49
|
21.31
|
Non-disclosure
|
21.32
|
Change in Financial Year
|
|
The Borrower shall not, and shall procure that no other Group Member will, change its financial year without the prior written consent of the Lender.
|
21.33
|
Waiver of Crown Immunity
|
22.
|
EVENTS OF DEFAULT
|
22.1
|
Non-payment
|
|
(a)
|
its failure to pay is caused by administrative or technical error; and
|
|
(b)
|
payment is made within three (3) Business Days of its due date.
|
22.2
|
Financial covenants
|
22.3
|
Other obligations
|
|
(a)
|
An Obligor fails to comply with any provision of the Finance Documents to which it is a party (other than those referred to in Clause 22.1 (Non-payment) and Clause 20 (Financial covenants)).
|
|
(b)
|
No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within ten (10) Business Days of
|
50
|
22.4
|
Misrepresentation
|
22.5
|
Cross default
|
|
(a)
|
Any Financial Indebtedness of any Group Member is not paid when due nor within any originally applicable grace period.
|
|
(b)
|
Any Financial Indebtedness of any Group Member is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).
|
|
(c)
|
Any commitment for any Financial Indebtedness of any Group Member is cancelled or suspended by a creditor of any Group Member as a result of an event of default (however described).
|
|
(d)
|
Any creditor of any Group Member becomes entitled to declare any Financial Indebtedness of any Group Member due and payable prior to its specified maturity as a result of an event of default (however described).
|
|
(e)
|
No Event of Default will occur under this Clause 22.5 if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness for the Group Members taken as a whole falling within paragraphs (a) to (d) above is less than US$12,000,000 (or its equivalent in any other currency or currencies).
|
22.6
|
Insolvency
|
|
(a)
|
Any Group Member is unable or admits inability to pay its debts as they fall due or is deemed to or declared to be unable to pay its debts under applicable law, suspends or threatens to suspend making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness.
|
|
(b)
|
The value of the assets of any Group Member is less than its liabilities (taking into account contingent and prospective liabilities).
|
|
(c)
|
A moratorium is declared in respect of any indebtedness of any Group Member.
|
22.7
|
Insolvency proceedings
|
|
(a)
|
Any corporate action, legal proceedings or other procedure or step is taken in relation to:
|
52
|
|
(i)
|
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Group Member, other than a solvent liquidation or reorganisation of any Group Member where the proceeds are paid to its Holding Companies in proportion to such Holding Companies’ direct equity interest in such member (provided that the same would not have a Material Adverse Effect) (a “Solvent Liquidation”);
|
|
(ii)
|
a composition, compromise, assignment or arrangement with any creditor of any Group Member;
|
|
(iii)
|
the appointment of a liquidator, provisional liquidator (other than in respect of a Solvent Liquidation), receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of any Group Member or any of its assets; or
|
|
(iv)
|
enforcement of any Security over any assets of any Group Member,
|
|
(b)
|
Paragraph (a) shall not apply to:
|
|
(i)
|
any winding-up petition which is being contested in good faith as frivolous or vexatious and is discharged, stayed or dismissed within sixty (60) days of commencement; or
|
|
(ii)
|
any step or procedure contemplated by transactions conducted in the ordinary course of trading on arm’s length terms.
|
22.8
|
Creditors’ process
|
22.9
|
Unlawfulness and invalidity
|
|
(a)
|
It is or becomes unlawful for an Obligor to perform any of its obligations under the Finance Documents to which it is a party (in case of each Personal Guarantor, subject to paragraph (c) of the definition of “Legal Reservations”).
|
|
(b)
|
Any obligation or obligations of an Obligor under any Finance Documents to which it is a party are not (subject to the Legal Reservations) or cease to be legal, valid, binding or enforceable and the cessation individually or cumulatively materially and adversely affects the interests of the Lender under the Finance Documents (in case of each Personal Guarantor, subject to paragraph (c) of the definition of “Legal Reservations”).
|
|
(c)
|
Any Finance Document ceases to be in full force and effect.
|
53
|
22.10
|
Cessation of business
|
22.11
|
Audit qualification
|
22.12
|
Expropriation
|
22.13
|
Repudiation and rescission of agreements
|
|
(a)
|
An Obligor (or any other relevant party) rescinds or purports to rescind or repudiates or purports to repudiate a Finance Document to which it is a party or evidences an intention to rescind or repudiate a Finance Document.
|
|
(b)
|
Any party to the Acquisition Documents rescinds or purports to rescind or repudiates or purports to repudiate any of those agreements or instruments in whole or in part where to do so has or is, in the reasonable opinion of the Lender, likely to have a material adverse effect on its interests under the Finance Documents.
|
22.14
|
Litigation
|
|
(a)
|
Any Disclosed Litigation is adversely determined and has or would reasonably be expected to have a Material Adverse Effect.
|
|
(b)
|
Any litigation, arbitration, administrative, governmental, regulatory or other investigations, proceedings or disputes arising out of or in connection with the Acquisition and/or the Acquisition Documents (other than the Disclosed Litigations) are commenced or threatened against any Group Member or its assets which is reasonably likely to be adversely determined and, if adversely determined, has or would reasonably be expected to have a Material Adverse Effect.
|
|
(c)
|
Any litigation, arbitration, administrative, governmental, regulatory or other investigations, proceedings or disputes (other than those set forth under paragraph (a) and (b) above) are commenced or threatened in relation to the Transaction Documents or the transactions contemplated in the Transaction Documents or against any Group Member or its assets which has or would reasonably be expected to have a Material Adverse Effect.
|
54
|
22.15
|
Material adverse change
|
22.16
|
Acceleration
|
|
(a)
|
cancel the Total Commitment whereupon they shall immediately be cancelled;
|
|
(b)
|
declare that all or part of the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable;
|
|
(c)
|
declare that all or part of the Loan be payable on demand, whereupon they shall immediately become payable on demand by the Lender; and/or
|
|
(d)
|
exercise all or any of its rights, remedies, powers or discretions under the Finance Documents.
|
55
|
23.
|
CHANGES TO THE LENDER
|
23.1
|
The Lender may, at any time, without the Borrower’s prior consent, assign any of its rights and/or transfer all or any of its rights, benefits and/or obligations in respect of the Facility, for this purpose the Lender may make such disclosure in relation to the Facility subject to the terms set out in Clause 23.5.
|
23.2
|
If:
|
|
(a)
|
the Lender assigns or transfers any of its rights or obligations under this Agreement pursuant to Clause 23.1 or changes its Facility Office; and
|
|
(b)
|
as a result of the circumstances existing at the date the assignment, transfer or change occurs, the Borrower would be obliged to make a payment to the relevant bank or financial institution or the Lender acting through its other office under Clauses 13 (Tax Gross Up and Indemnities) or 14 (Increased Costs),
|
23.3
|
The Borrower acknowledges that any person to which the rights, benefits and/or obligations of the Lender may from time to time be so assigned or transferred shall be entitled to the benefit of this Agreement and each other Finance Document as if such person had constituted an original lender under this Agreement to the extent of such assignment or transfer.
|
23.4
|
The Borrower agrees that, save as expressly provided in this Clause 23, any assignment or transfer by the Lender, as the case may be, shall as regards the Borrower, be on such terms as are customary in the wholesale lending market in relation to assignments or transfers by the lenders and that they will at the expense of the Lender execute and deliver, or procure the execution and delivery of, such document(s) as may be reasonably required by the Lender to effect such assignment or transfer.
|
23.5
|
The Lender, its officers, and its agents, may disclose information (on a confidential basis) relating to, the Borrower or any Group Member and their account(s) and/or dealing relationship(s) with the Lender and the Finance Documents, including but not limited to details of the facilities, any Security taken, transactions undertaken and balances and positions with the Lender, as the Lender shall consider appropriate to:
|
|
(a)
|
the head office of the Lender, any of its Subsidiaries or Subsidiaries of its Holding Company, Affiliates, representative and branch offices in any jurisdiction (the “Permitted Parties”);
|
|
(b)
|
professional advisers and service providers of the Permitted Parties who are under a duty of confidentiality to the Permitted Parties;
|
56
|
|
(c)
|
any actual or potential assignee, novatee, transferee, participant or sub-participant (on a confidential basis) in relation to any of the Lender’s rights and/or obligations under any Finance Document (or any agent or adviser of any of the foregoing);
|
|
(d)
|
any rating agency, insurer or insurance broker of, or direct or indirect provider of credit protection to any Permitted Party;
|
|
(e)
|
any court or tribunal or regulatory, supervisory, governmental or quasi-governmental authority with jurisdiction over the Permitted Parties;
|
|
(f)
|
any other person with (or through) whom the Lender enters into (or may potentially enter into) any other transaction under which payments are to be made by reference to, this Agreement or the Borrower; and
|
|
(g)
|
any other person to whom, and to the extent that, information is required to be disclosed by any applicable law or regulation.
|
23.6
|
The Borrower acknowledges the following:
|
|
(a)
|
the Borrower has received and read the Bank’s Notice to Customers and Other Individuals relating to the Personal Data (Privacy) Ordinance and the Code of Practice on Consumer Credit Data; and
|
|
(b)
|
the Borrower has, or will, notify each of its Relevant Individuals, that the Lender may, in the course of providing banking services to the Borrower, receive Borrower information in respect of that Relevant Individual.
|
24.
|
CHANGES TO THE BORROWER
|
|
(a)
|
the New Borrower is a limited liability company incorporated in Delaware, British Virgin Islands or Hong Kong;
|
|
(b)
|
the New Borrower beneficially holds (whether directly or indirectly) the same percentage of the Equity Interest of all the Operating Companies as the Borrower holds immediately before it assigns its rights or transfers its rights or obligations under the Finance Documents to the New Borrower; and
|
57
|
|
(c)
|
the Lender has received all of the documents and other evidence listed in Schedule 4 (Documents Required to be Delivered by the New Borrower), each in form and substance satisfactory to the Lender.
|
58
|
25.
|
PAYMENT MECHANICS
|
25.1
|
Payments between the Parties
|
|
(a)
|
On each date on which the Borrower or the Lender is required to make a payment under a Finance Document, the Borrower or the Lender (as the case may be) shall make the same available to the recipient for value on the due date at the time and in such funds as are customary at the time for settlement of transactions in the relevant currency in the place of payment.
|
|
(b)
|
Payment shall be made to such account in the principal financial centre of the country of that currency with such bank as the recipient specifies.
|
25.2
|
Partial payments
|
|
(a)
|
If the Lender receives a payment for application against amounts due in respect of any Finance Documents that is insufficient to discharge all the amounts then due and payable by the Borrower under the Finance Documents, the Lender shall apply that payment towards the obligations of the Borrower under the Finance Documents in the following order:
|
|
(i)
|
first, in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under those Finance Documents;
|
|
(ii)
|
secondly, in or towards payment pro rata of any principal due but unpaid under those Finance Documents; and
|
|
(iii)
|
thirdly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.
|
|
(b)
|
Paragraph (a) above will override any appropriation made by the Borrower.
|
25.3
|
No set-off by the Borrower
|
25.4
|
Business Days
|
|
(a)
|
Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
|
|
(b)
|
During any extension of the due date for payment of any principal or Unpaid Sum under paragraph (a) above, interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
|
59
|
25.5
|
Currency of account
|
|
(a)
|
Subject to paragraphs (a) to (d) below, the US Dollar is the currency of account and payment for any sum due from the Borrower under any Finance Document.
|
|
(b)
|
A repayment of the Loan or Unpaid Sum or a part of the Loan or Unpaid Sum shall be made in the currency in which the Loan or Unpaid Sum is denominated on its due date.
|
|
(c)
|
Each payment of interest shall be made in the currency in which the sum in respect of which the interest is payable was denominated when that interest accrued.
|
|
(d)
|
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
|
|
(e)
|
Any amount expressed to be payable in a currency other than the US Dollar shall be paid in that other currency.
|
25.6
|
Change of currency
|
|
(a)
|
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:
|
|
(i)
|
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Lender (after consultation with the Borrower ); and
|
|
(ii)
|
any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Lender (acting reasonably).
|
|
(b)
|
If a change in any currency of a country occurs, this Agreement will, to the extent the Lender (acting reasonably and after consultation with the Borrower) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice and otherwise to reflect the change in currency.
|
26.
|
SET-OFF
|
60
|
27.
|
NOTICES
|
27.1
|
Communications in writing
|
27.2
|
Addresses
|
|
(a)
|
in the case of the Borrower, that identified with its name on the signature pages below; and
|
|
(b)
|
in the case of the Lender, that identified with its name on the signature pages below,
|
27.3
|
Delivery
|
|
(a)
|
Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective:
|
|
(i)
|
if by way of fax, when received in legible form; or
|
|
(ii)
|
if by way of letter, when it has been left at the relevant address or five (5) Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address;
|
|
(b)
|
Any communication or document to be made or delivered to the Lender will be effective only when actually received by the Lender and then only if it is expressly marked for the attention of the department or officer identified with the Lender’s signature below (or any substitute department or officer as the Lender shall specify for this purpose).
|
|
(c)
|
Any communication or document made or delivered to the Borrower in accordance with this Clause will be deemed to have been made or delivered to the Borrower.
|
27.4
|
English language
|
|
(a)
|
Any notice given under or in connection with any Finance Document must be in English.
|
61
|
|
(b)
|
All other documents provided under or in connection with any Finance Document must be:
|
|
(i)
|
in English; or
|
|
(ii)
|
if not in English, and if so required by the Lender, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
|
28.
|
CALCULATIONS AND CERTIFICATES
|
28.1
|
Accounts
|
28.2
|
Certificates and Determinations
|
28.3
|
Day count convention
|
29.
|
PARTIAL INVALIDITY
|
30.
|
REMEDIES AND WAIVERS
|
62
|
31.
|
AMENDMENTS AND WAIVERS
|
32.
|
COUNTERPARTS
|
63
|
33.
|
GOVERNING LAW
|
34.
|
ENFORCEMENT
|
34.1
|
Jurisdiction
|
|
(a)
|
The courts of Hong Kong have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement) (a “Dispute”).
|
|
(b)
|
The Parties agree that the courts of Hong Kong are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.
|
|
(c)
|
This Clause 34.1 is for the benefit of the Lender only. As a result, the Lender shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Lender may take concurrent proceedings in any number of jurisdictions.
|
34.2
|
Service of process
|
|
(a)
|
irrevocably appoints JPS Consultants Limited (with its address at Room 2204, Tung Chiu Commercial Building, 193 Lockhart Rd., Wanchai, Hong Kong) as its agent for service of process in relation to any proceedings before the courts of Hong Kong in connection with any Finance Document; and
|
|
(b)
|
agrees that failure by a process agent to notify the Borrower of any process will not invalidate the proceedings concerned.
|
64
|
1.
|
Corporate Documents
|
|
(a)
|
A copy of the constitutional documents of each Obligor (other than the Personal Guarantors).
|
|
(b)
|
A copy of the constitutional documents of the Target certified by one director of the Target.
|
|
(c)
|
A copy of a resolution of the board of directors of each Obligor (other than the Personal Guarantors):
|
|
(i)
|
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;
|
|
(ii)
|
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
|
|
(iii)
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, the Utilisation Request) to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party.
|
|
(d)
|
A specimen of the signature of each person authorised by the resolution referred to in paragraph (c) above.
|
|
(e)
|
A certificate of the Borrower (signed by a director of the Borrower) confirming that:
|
|
(i)
|
borrowing the Total Commitment would not cause any borrowing or similar limit binding on it to be exceeded; and
|
|
(ii)
|
each copy document relating to it specified in this Schedule 1 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
|
|
(f)
|
A certificate of the Sponsor (signed by a director of the Sponsor) confirming that each copy document relating to it specified in this Schedule 1 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
|
|
(g)
|
A registered agent certificate issued by the registered agent of the Borrower in respect of the Borrower.
|
2.
|
Legal opinions
|
|
(a)
|
A legal opinion of White & Case, legal advisers to the Lender in Hong Kong, substantially in the form distributed to the Lender prior to the Signing Date;
|
65
|
|
(b)
|
A legal opinion of White & Case, legal advisers to the Lender as to New York law governed Target Share Pledge, substantially in the form distributed to the Lender prior to the Signing Date.
|
|
(c)
|
A legal opinion of Walkers, legal advisers to the Lender in British Virgin Islands, substantially in the form distributed to the Lender prior to the Signing Date; and
|
|
(d)
|
A legal opinion of Skadden, Arps, Slate, Meagher & Flom, legal advisers to the Borrower in the Delaware, substantially in the form distributed to the Lender prior to the Signing Date.
|
3.
|
Transaction Documents
|
|
(a)
|
A copy of each of the Transaction Documents (other than the Finance Documents) executed by the parties to those documents.
|
|
(b)
|
The Finance Documents (together with all ancillary documents relating thereto), each duly executed and delivered by all parties thereto.
|
4.
|
The Acquisition
|
|
(a)
|
Evidence that the Acquisition has been approved by (x) the Special Committee of the board of directors of the Target; and (y) holders of a majority of the outstanding shares of the Target.
|
|
(b)
|
A copy of each Requisite Regulatory Approval (if any).
|
|
(c)
|
Evidence that all the conditions precedent under the Acquisition Agreement has been satisfied except for payment of any amounts to be funded by the Loan (or will be satisfied concurrently with the Utilisation).
|
5.
|
Other documents and evidence
|
|
(a)
|
The Group Structure Chart.
|
|
(b)
|
Evidence that the Borrower Share Mortgage has been registered at the Companies Registry of British Virgin Islands.
|
|
(c)
|
Evidence that the Debt Service Reserve Account has been opened.
|
|
(d)
|
A copy of any other Authorisation or other document, opinion or assurance which the Lender considers (acting reasonably) to be necessary or desirable (if it has notified the Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document.
|
|
(e)
|
The Original Financial Statements.
|
|
(f)
|
The Funds Flow Statement.
|
66
|
|
(g)
|
Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 17 (Costs and expenses) have been paid or will be paid by the first Utilisation Date.
|
67
|
1.
|
We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.
|
2.
|
We wish to borrow the Loan on the following terms:
|
Proposed Utilisation Date:
|
[●] (or, if that is not a Business Day, the next Business Day)
|
Currency of Loan:
|
US$
|
Amount:
|
[●]
|
3.
|
We confirm that each condition specified in Clause 4.2 (Further conditions precedent), to the extent applicable, is satisfied on the date of this Utilisation Request.
|
4.
|
The proceeds of the Loan (save for US$[___], being the agreed deduction for ____________) should be credited to [account].
|
5.
|
This Utilisation Request is irrevocable.
|
68
|
|
[insert details of the financial covenants to be certified including calculations]
|
69
|
1.
|
An accession deed in the Agreed Form and duly executed by the New Borrower (the “Accession Deed”).
|
2.
|
A copy of the constitutional documents of the New Borrower.
|
3.
|
A copy of a resolution of the board of directors of the New Borrower:
|
|
(a)
|
approving the terms of, and the transactions contemplated by, the Accession Deed and the Finance Documents to which it is a party and resolving that it execute the Accession Deed;
|
|
(b)
|
authorising a specified person or persons to execute the Accession Deed on its behalf; and
|
|
(c)
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party.
|
4.
|
A specimen of the signature of each person authorised by the resolution referred to in paragraph 3 above.
|
5.
|
A certificate of the New Borrower (signed by a director) confirming that:
|
|
(a)
|
borrowing the Total Commitment would not cause any borrowing or similar limit binding on it to be exceeded; and
|
|
(b)
|
each copy document relating to it specified in this Schedule 4 is correct, complete and in full force and effect as at a date no earlier than the date of the Accession Deed.
|
6.
|
A legal opinion of the legal adviser to the Lender in Hong Kong.
|
7.
|
A legal opinion of the legal advisers to the Lender in the jurisdiction in which the New Borrower is incorporated.
|
70
|
Sincerely,
|
||||
By
|
||||
Name:
|
||||
Agreed to and accepted:
Rightmark Holdings Limited
|
||||
By
|
/s/ Guoshen Tu
|
|||
Name:
|
Guoshen Tu
|
|||
Title:
|
Director
|
|||
Agreed to and accepted:
Intelligent One Limited
|
||||
By
|
/s/ Guoshen Tu | |||
Name:
|
Guoshen Tu
|
|||
Title:
|
Director
|
|||
No.
|
Name
|
Number of Rollover Contribution Shares
|
1
|
Guoshen Tu
|
18,750,435
|
2
|
Wing Khai Yap (Terence)
|
1,360,000
|
3
|
Lizhong Wang
|
248,775
|
4
|
Zhongxin Xie
|
160,300
|
5
|
Lingfeng Xiong
|
239,980
|
6
|
Li Fang
|
175,000
|
7
|
Ying Zhang
|
38,811
|
8
|
Zhiming Wu
|
34,500
|
9
|
Daobin Sang
|
20,000
|
10
|
Guohui Cao
|
49,000
|
11
|
Po Kwai Chow
|
80,000
|
12
|
Yang Zhao
|
46,916
|
13
|
Yujuan Guan
|
17,500
|
14
|
Zhuo Gong
|
20,000
|
15
|
Xihong Dai
|
57,000
|
16
|
Qiaomin Wu
|
8,000
|
17
|
KaiCheng Cheng
|
175,211
|
18
|
Lei Wang
|
47,000
|
19
|
Xiaosheng Tong
|
180,000
|
Total
|
21,708,428
|