10.1 The Acknowledgement of the Loan Arrangement under the Syndicated Loan by the Banks The banks under this Agreement, including the Joint Lead Managers, Joint Lead Underwriters, the Agency Bank and other Member Banks and Lending Banks, hereby understand, acknowledge and agree:
1) The civil right of the banks under this Agreement, including the Joint Lead Managers, Joint Lead Underwriters, the Agency Bank and other Member Banks and Lending Banks, is equal; the voting right of each of the Lending Banks is in proportion to the amount of the Loan such bank provides;
2) The Member Banks and the Lending Banks shall be Chinese banks within the territory of China and/or foreign banks approved to conduct Renminbi businesses within the territory of China;
3) All financial institutions participating in the syndicated loan are Member Banks of the syndicated loan; The Loan under this Agreement is RMB loan;
4) In accordance with Chinese laws, the Lending Banks provide the Loan to the same Borrower pursuant to the same loan agreement, namely, this Agreement;
5) The principle of volunteer negotiation and volunteer loan subscription is observed when Member Banks and the Lending Banks participate in the syndicated loan;
6) All Member Banks and the Lending Banks have prudently examined materials for evaluating and examining the Borrower, Guarantors and other materials related to the Loan Arrangement provided by the Borrower through the Agency Bank; all Member Banks and the Lending Banks fully understand that pursuant to the provisions of Chinese laws, the Borrower is obliged to truthfully provide, through the Agency Bank, Member Banks and the Lending Banks with all necessary materials on the syndicated loan and answer their inquiries, and to make the decision to participate in the Loan Arrangement, all Member Banks and the Lending Banks have taken corresponding steps, procedures so as to fully understand materials and information related to the Loan Arrangement; the decision to participate in the Loan Arrangement under this Agreement is completely based upon the review conducted by the Member Banks and the Lending Banks themselves;
7) The amount of the Loan under this Agreement is acknowledged and set out in Schedule One herein;
8) The Joint Lead Managers, Joint Lead Underwriters, the Agency Bank and other Member Banks and the Lending Banks jointly execute this Agreement with the Borrower and Guarantors;
9) This Agreement is a single loan contract executed upon full negotiation, duly authorized representatives of the Lending Banks shall execute this Agreement with the respective official seals stamped;
10) The principal amount undertaken by each Lending Bank and the time to provide the amount shall be specified in this Agreement;
11) The interest accrued on the Loan under this Agreement is determined in accordance with the lending rate and measures set by the PBOC on the basis of interest rate adjustment plan negotiated between the Borrower and the Lending Banks; and
12) The Loan under this Agreement is guaranteed by the following Guarantors: Guangdong Mobile Communication Company Limited, Zhejiang Mobile Communication Company Limited, Jiangsu Mobile Communication Company Limited, Fujian Mobile Communication Company Limited, Henan Mobile Communication Company Limited, and Hainan Mobile Communication Company Limited. In the event that the Borrower fails to repay the principal, pay the interest and
other fees due on schedule, the Guarantors shall fulfill the obligation of payment or bear the responsibility pursuant to the provisions of this Agreement and the Letter of Guarantee.
10.2 Joint Lead Managers
The responsibilities of the Joint Lead Managers are as follows:
1) The Joint Lead Managers have accepted the formal written delegation by the Borrower to the Joint Lead Managers regarding the preparation and formation of the syndicate on September 21, 2000. The Joint Lead Managers, based on such written delegation, make invitations to their peers in the business with regard to organizing the bank syndicate;
2) Delivering invitations to the peers with regard to organizing the bank syndicate, information memorandum, and other related materials the Joint Lead Managers deem necessary, specifying the deadline for feedback and collecting their respective feedback;
3) Retaining lawyers for the bank syndicate;
4) Organizing and arranging the negotiation, preparation, and execution of this Agreement; and
5) Designating the Agency Bank.
10.3 Joint Lead Underwriters
The responsibilities of the Joint Lead Underwriters are as follows:
1) Being jointly responsible for underwriting the Loan under the Loan Arrangement herein. When Member Banks and/or the Lending Banks fail to provide the Loan pursuant to the provisions herein, the Joint Lead Underwriters bear the responsibility of making the Loan and providing the Loan to the Borrower pursuant to the provisions herein. The performance of Member Banks and/or the Lending Banks of this Agreement is not a precondition to borrowing the Loan to be provided by the Joint Lead Underwriters under this Agreement;
2) The Joint Lead Underwriters assume joint and several liability for the Loan Arrangement under this Agreement on principle of equality; and
3) In case that the Joint Lead Underwriters fail to fulfill their responsibilities under this Agreement, they shall assume the liability pursuant to relevant stipulations.
10.4 The Rights and Obligations of the Member Banks
1) They have the right to know and inquire, through the Agency Bank, the Borrower's credit condition, its utilization of the syndicated loan, and its performance of this Agreement;
2) Proposing to hold a bank syndicate meeting prior to the first Drawdown;
3) Providing Loan amounts undertaken in full on schedule in strict accordance with the stipulations herein; and
4) Once the Member Banks provide the Loan to the Borrower pursuant to the stipulations herein, they shall be entitled to the rights of the Lending Banks, and shall assume the liabilities of the Lending Banks.
10.5 The Rights and Obligations of the Lending Banks
1) They have the right to know and inquire, through the Agency Bank, the Borrower's credit condition, its utilization of the syndicated loan, and its performance of this Agreement;
2) They have the right to require the Agency Bank to distribute the interest and principal in accordance with the proportion and time agreed upon;
3) They have the right to point out and ask for the correction of the failure of the Agency Bank to perform its responsibilities and obligations or activities that impair the interest of other Lending Banks;
4) They shall enjoy the interest and assume the risk according to their proportion of the Loan as well as the stipulations of this Agreement;
5) Prior to the decision made at the bank syndicate meeting to call back the Loan to the Borrower ahead of schedule, they shall not call back their shares of the Loan ahead of schedule;
6) Proposing to hold a bank syndicate meeting and exercise voting right in proportion to their loan share;
7) Coordinating and assisting the Agency Bank in dealing with issues related to the Loan;
8) The Lending Banks shall not, without discussions with the Joint Lead Managers and the Agency Bank, make any addition and deletion, change or adjustment in any form to any article herein; shall not enter into any other agreements or undertakings related to this Agreement but not covered by this Agreement, and such agreements or m undertakings, if already reached or implemented is deemed invalid; and
9) The Lending Banks have conducted and will, through the Agency Bank, conduct investigation and evaluation on the Borrower's and/or Guarantors' financial condition, credit condition or any other conditions. The decision and judgment of the Lending Banks do not depend upon the presentation and introduction of the Joint Lead Managers and/or the Agency Bank, including but not limited to the following aspects:
i. Examining and inquiring about, for their own interest, the accuracy and completeness of any information related to the Loan Arrangement pursuant to this Agreement (no matter whether or not such information has been delivered or will henceforth be delivered to such Borrower and/or Guarantors by the Joint Lead Managers and/or the Agency Bank) provided by the Borrower and/or Guarantors; or,
ii. Evaluating and examining Borrower's and/or Guarantors' financial condition, credit condition or other conditions for their own interest.
10.6 Agency Bank
1) To perform this Agreement, the Borrower shall, in the name of the borrower, open a RMB current account at the Agency Bank;
2) Each Lending Bank agrees that the Agency Bank shall be their agent for the issues concerning this Agreement and entrust the Agency Bank to perform the rights, powers and authorities as well as all other reasonable associated rights, powers and authorities specially entrusted to the Agency Bank pursuant to the provisions herein;
3) In case that,
i. All representations related to this Agreement made by the Borrower and/or Guarantors are true;
ii. The Borrower has not violated or failed to fulfill its obligations under this Agreement; and
iii. The Guarantors have not violated or failed to fulfill their obligations under this Agreement and/or the Letter of Guarantee; then the Agency Bank shall enjoy the following rights and/or powers:
i. Relying on the certificates executed documents and information provided, by the Borrower and/or Guarantors or those representing the Borrower and/or Guarantors;
ii. With the authorization of the Lending Banks, the Agency Bank may directly take legal actions or procedures against the default of the Borrower and Guarantors until the losses resulting from such Event of Default have been fully compensated for and the Event of Default has been corrected; In addition, the Agency Bank shall fulfill the following obligations:
i. Immediately notifying each Lending Bank the content of any notice or document the Agency Bank receives from the Borrower or Guarantors; and
ii. Acting in accordance with reasonable instructions from theLending Banks;
4) The Agency Bank is not obliged to:
i. Inquire:
a) Whether or not any representations, warranties, and covenants made by the Borrower in this Agreement are true;
b) Whether or not any representations, warranties, and covenants made by the Guarantors in this Agreement and/or the Letter of Guarantee are true;
c) The occurrence of any event that constitutes an Event of Default or Anticipatory Event of Default;
d) The performance of the obligations under this Agreement by the Borrower; and
e) The performance of the Letter of Guarantee by the Guarantors;
ii. Disclosing any information concerning the Borrower and/or Guarantors to any other parties not specified in this Agreement; or
iii. Assuming any other obligations beyond those specified in this Agreement;
5) In accordance with relevant provisions herein, to protect the interest of all Lending Banks, and all expenses, including the lawyer fees, arising out of relevant legal actions or procedures taken by the Agency Bank shall be compensated by the Lending Banks, upon receiving a written notice from the Agency Bank, in proportion to their respective shares in the Loan pursuant to the requirement of the Agency Bank;
6) The Agency Bank shall not bear any responsibility for the accuracy and/or completeness of the information related to this Agreement or any information on the legality, validity, effectiveness, propriety or enforceability of this Agreement provided by the Borrower and/or Guarantors;
7) The Member Banks and Lending Banks agree that they do not advance any possible claim against any person of the Agency Bank with regard to items specified in item 4) of Article 10.6 herein;
8) The Responsibilities of the Agency Bank
The Lending Banks grant authorization to the Agency Bank and the Agency Bank acknowledges and warrants fulfilling the following responsibilities:
i. The Agency Bank shall responsible for the organization and implementation of this Agreement after its execution;
ii. The Agency Bank shall strictly perform this Agreement and safeguard the interest of Lending Banks pursuant to the provisions herein, and shall not impair the lawful interest of other Lending Banks by taking advantage of the Agency Bank's status;
iii. The Agency Bank is the loan manager after the execution of this Agreement; the Agency Bank designates a particular person to be in charge of the specific issues with regard to the syndicated loan, and is responsible for transferring to the Lending Banks relevant financial information and data provided by the Borrower;
iv. The Agency Bank, strictly in accordance with relevant provisions herein, shall handle the allocation of all the principal of the Loan as well as the collection of the principal and interest;
v. The Agency Bank will conduct registration of the total amount of the syndicated loan examined and approved by the Lending Banks and the respective loan shares provided by the Member Banks and register the collection of the principal and interest of the loan;
vi. The Agency Bank will timely repay the interest paid and principal repaid by the Borrower to the Lending Banks in accordance with their corresponding share of the Loan;
vii. In case that the Borrower fails to repay the syndicated loan in full on schedule, the Agency Bank shall, pursuant to the provisions herein, distribute the repaid amount among the Lending Banks in accordance with their corresponding share of the Loan. The default interest shall accrue on the overdue amount, and the Agency Bank, pursuant to relevant regulations of PBOC, will calculate and collect the default interest from the Borrower.
viii. Upon the execution of this Agreement, the Agency Bank shall submit the counterpart of this Agreement to PBOC for file;
ix. The Agency Bank is responsible to inform the Borrower its actions of default, and if no rectification is made, the Agency Bank is responsible to hold a bank syndicate meeting and impose penalties upon the Borrower; the penalty decision at the bank syndicate meeting will be sent to the Borrower and Guarantors in writing; the penalties include stopping the provision of the Loan, calling back the Loan ahead of schedule, and default interest, among others; when necessary, it can file law suits to relevant people's courts;
x. In case that the authorization to the Agency Bank and the authority of the Agency Bank is inexplicit and unclear, the Agency Bank will take bona fide measures to safeguard the interest of the Lending Banks; and
xi. Conduct other issues with regard to the syndicated loan that are entrusted by the Member Banks.
10.7 Bank Syndicate Meeting
1) The bank syndicate meeting will be proposed by the Agency Bank and/or Joint Lead Managers, or by more than two Member Banks and/or Lending Banks. The decision of a bank syndicate meeting shall be in written form and shall be executed by the legal representatives or authorized agents of the Lending Banks;
2) The following issues shall be discussed at the syndicate meeting and shall be approved by Member Banks that undertake more than two thirds of the loan share or Lending Banks that provide more than two thirds of the Loan, and the decisions will have the binding force upon all Member Banks and the Lending Banks:
i. Declaring an Event of Default on the part of the Borrower and ascertaining its responsibility for default pursuant to the Agreement;
ii. Determining the Anticipatory Event of Default;
iii. Deciding to stop the Loan;
iv. Deciding to cancel the undrawn Loan;
v. Deciding to call back the Loan ahead of schedule;
vi. Deciding to file lawsuit or arbitration against the Borrower and Warrantors; and
vii. Other material issues;
3) The following issues shall be discussed at the syndicate meeting and shall be approved unanimously by all the Member Banks or Lending
4) The Extension Application put forward by the Borrower shall be deemed accepted upon the consent from the Joint Lead Underwriters while other Lending Banks may or may not accept the Extension; in case that Lending Banks accept the Extension, they shall undertake their corresponding share of the balance of the Loan extended; in case that a Lending Bank does not accept the Extension, its relevant share of the balance of the Loan extended shall be automatically transferred to and undertaken by the Joint Lead Underwriters equally.
10.8 Fund Transfer among the Lending Banks and the Agency Bank
1) The Lending Banks assume the obligation of providing the Loan in the sum specified in Schedule One herein;
2) The fund transfer among the Lending Banks and the Agency Bank will be conducted through the Lending Banks (or their branches) and the clearing system of the PBOC at the place where the Agency Bank is located; transfer of fund by one party under this Agreement to the other party's account opened at PBOC of the aforesaid location is deemed the completion of payment;
3) The Drawdown Notice shall only be delivered by post or courier instead of being delivered by other means such as fax and e-mail; in case that it is delivered by post, the time when the Agency Bank signs the receipt for the post is deemed as the time of receipt; in case it is delivered by courier, the time when the Agency Bank signs the receipt for it is deemed as the time of receipt; no matter what means of delivery is adopted, receipt by the Agency Bank of the Notice prior to the end of its business hour on a given day is deemed as having received on such day;
4) The Agency Bank, upon receiving the Drawdown Notice from the Borrower, shall immediately notify each Lending Bank via fax followed by confirmation via telephone, and the time for such notice shall be no later than fifteen (15) o'clock(15:00) Beijing Time on the next day after the day when such Drawdown Notice is received;
5) The Member Banks and/or Lending Banks, upon receiving the Borrower's Drawdown Notice from the Agency Bank, shall, within TWO (2) Bank Business Days, make a written acknowledgement (including by means of fax) to the Agency Bank with regard to: (1) The receipt of Drawdown Notice; and (2) Whether or not agree to remit its loan share to the Agency Bank at the time and in the amount as specified in the Drawdown Notice. In case that Member Banks and/or Lending Banks agree to remit the amount to the Agency Bank at the time and in the amount as specified in the Drawdown Notice, such confirmation letter then constitutes their obligation of payment; in case that Member Banks and/or Lending Banks do not agree to remit the amount to the Agency Bank at the time and in the amount as specified in the Drawdown Notice, they shall notify the Agency Bank the following issues: (1) reasons why they fail to act in accordance with the instructions from the Agency Bank; (2) Whether or not they would continue to participate in the Loan Arrangement as Lending Banks. In the case of (2), the Joint Lead Underwriters shall make respective arrangement on a timely basis so that the principal amount under the Loan Arrangement continues to be equal to that at the time when this Agreement is executed;
6) In case that the Lending Banks fail to transfer the amount of Loan they have undertaken in full on schedule to the account designated by the Agency Bank pursuant to the provisions of the Drawdown Notice, the Agency Bank shall immediately notify the Joint Lead Underwriters, who shall take coordinated measures to raise corresponding amount of fund so as to ensure that the amount in full will be transferred to the account opened at the Agency Bank by the Borrower on the Drawdown Date; regarding any cost or loss resulting from the emergency measures taken by the Joint Lead Underwriters in an effort to raise fund under such a circumstance, the Joint Lead Underwriters shall, through the Agency Bank, deliver to the Lending Bank that has violated the Agreement a written notice detailing the loss and its amount, and such Lending Bank shall compensate, through the Agency Bank, to the Joint Lead Underwriters pursuant to such notice; in case under such a circumstance, the Joint Lead Underwriters fail to raise the necessary fund after making the best efforts, any loss, claim from the Borrower,as well as all the liabilities and consequences resulting therefrom shall be borne by such Lending Banks that fail to provide its share of the Loan in violation of the Agreement;
7) The Lending Banks shall, in strict accordance with the Agreement and provisions of this Agreement, remit the loan amount in full on schedule to the account of the Agency Bank; the arrival time of fund shall not be later than ten (10) o'clock (10:00) Beijing Time on the morning of the Drawdown Date, and any later time shall be deemed as the next day; and
8) In case that the amount paid by the Agency Bank to the Lending Banks exceeds the amount the Agency Bank received from the Borrower, the Agency Bank has the right to ask the Lending Banks to return any excess amount.
ARTICLE ELEVEN BORROWER'S REPRESENTATIONS AND WARRANTIES
第11条 借款人的陈述与保证
11.1 The Borrower hereby represents and warrants to the Joint Lead Managers,Joint Lead Underwriters, the Agency Bank, Member Banks, and Lending Banks as follows:
1) The Borrower is a wholly foreign-owned company of limited liability established under the laws of China with a qualification to conduct business in China, and has sufficient power, authority, and legal right to own its assets and operate its business;
2) The Borrower has the right to borrow the Loan pursuant to the provisions herein, and has taken all necessary actions and/or other actions necessary to approve the execution and performance of this Agreement;
3) This Agreement and other loan documents, upon execution thereof and with the official seals stamped, constitute an agreement with legal binding force upon the Borrower;
4) The execution of the loan documents or the performance of any obligation under the loan documents or the exercise of any rights under the loan documents by the Borrower will not contradict or conflict with any laws, regulations, statues, judgments, decrees, authorizations, agreements, or obligations applicable to the Borrower; in the event of any contradictions, the Borrower has already obtained from the competent authorities of the Chinese
government a valid waiver of legal binding force in China, which may be enforced by legal actions;
5) The Borrower does not have any material liabilities or contingent liabilities that have not been disclosed to the Agency Bank and Lending Banks;
6) No security interest of any kind has been imposed upon the assets or income of the Borrower that may have material adverse effect upon the borrowing of the Loan, the utilization and/or repayment of the Loan;
7) When the Agreement goes into effect, there is no factual or pending lawsuit, arbitration of the arbitration tribunal, or any other potential material disputes against the Borrower that may constitute material adverse effect in any form upon the borrowing of the Loan, the utilization and/or repayment of the Loan by the Borrower;
8) At present, the Borrower's latest financial statements are prepared in accordance with applicable Chinese laws and accounting standards. Such financial statements completely, truly and fairly reflect the financial status of the Borrower within corresponding fiscal period as well as its performance during the same period. There has been no material adverse change in the business or financial conditions of the Borrower following the end of such fiscal period;
9) The Borrower, upon borrowing the Loan, will utilize the borrowed fund in strict accordance with the purpose of the Loan as provided in this Agreement and the laws of China; and
10) All materials provided by the Borrower to the Joint Lead Managers and the Agency Bank are true, complete, and accurate in all material aspects.
11.2 The Borrower represents and warrants to the Agency Bank and Lending Banks that the above representations and warranties are all true and accurate in light of the existing fact and circumstance on each Drawdown Date.
ARTICLE TWELVE BORROWER'S COVENANTS第12条 借款人承诺
12.1 Affirmative Covenants
The Borrower undertakes to the Agency Bank and Lending Banks that within the Effective Term of the Loan Agreement and prior to the settlement and repayment of the full amount under the Loan, unless the Agency Bank consents in writing otherwise, the Borrower will:
1) Remain a wholly owned subsidiary of China Mobile (Hong Kong) Limited.
2) Provide to the Agency Bank
i. after the Agreement becomes effective, the counterpart of the latest annual financial statements (if any) which have been examined and acknowledged by the Board of Directors of the Borrower, and such statements shall be prepared in accordance with applicable Chinese laws and accounting standards;
ii. within six months after the end of each fiscal year, the counterpart of the financial statements for the fiscal year which have been examined and acknowledged by the Board of Directors of the Borrower, and such statements shall be prepared in accordance with applicable Chinese laws and
accounting standards; and
iii. upon request from the Agency Bank, relevant information on the Borrower on a timely basis;
3) Immediately notify the Agency Bank the following issues:
i. The occurrence of any Event of Default;
ii. Anticipatory Event of Default or any possible event that will impair the Lending Banks' interest under the Agreement;
iii. Any lawsuit, arbitration, or claim in any form involving anaggregate amount of more than RMB fifty million or the equivalent amount in other currencies claimed by any creditor; and
iv. Any other material issues, including but not limited to the change in equity interest structure (of the Borrower);
4) Abide by the applicable laws, regulations, authorizations, or agreements and fulfill relevant obligations as well as pay due taxes on time during business operations;
5) Provide the Agency Bank, on a timely basis, with the counterparts of any material agreement or other loan, guarantee or other financial arrangement agreements, executed after the Agreement comes into effect, that may have material adverse effect upon this Agreement;
6) Ensure that, the Borrower's Loan under this Agreement, at any given time, shall be at least equal to the Borrower's all other secured debt in terms of order of repayment; and
7) Procure insurance and maintain the validity of various insurances.
12.2 Negative Covenants
The Borrower undertakes to the Agency Bank and Lending Banks that Within the Term and prior to the settlement and repayment of the full amount under the Loan, the Borrower shall take all proper measures to safeguard the interest of the Lending Banks and protect it from infringement of any forms. Unless the Agency Bank otherwise consents in writing, the Borrower will not:
1) Ask for the withdrawal of any loan amount under this Agreement prior to the completion of the Overseas Financing of China Mobile (Hong Kong) Limited;
2) Merge with any other company, or take any measure with the aim to dissolve, liquidate, or terminate business operation;
3) Reduce its registered capital;
4) Sell, transfer, or dispose in any other ways any part of business or assets that may constitute material adverse effect upon its borrowing, utilization and/or repayment of the Loan;
5) Incur any other debt or contingent liability that has priority over the Loan in terms of order of repayment; and
6) Impose any material security interest upon its assets for benefit of any other creditors.
ARTICLE THIRTEEN LENDING BANKS' WARRANTIES
第13条 贷款银行的保证
13.1 Each of the Lending Banks, upon receiving the Drawdown Notice delivered by the Agency Bank, will remit the amount they undertake under the Loan Arrangement specified in Schedule One to the account designated by the Agency Bank on schedule pursuant to the stipulations of the Form of Drawdown Notice set out in Schedule Three.
13.2 The obligations each Lending Bank assumes are separate and individual, and any Lending Bank's failure to fulfill its obligations under this Agreement shall not affect nor restrict the other Lending Banks' fulfillment of obligations under this Agreement, nor affect the Borrower's due obligations to other Lending Banks. The other Lending Banks shall not assume any liabilities for the actions of the Lending Bank that fails to fulfill its obligations under this Agreement. Notwithstanding such provisions on the Lending Banks' obligations, the Joint Lead Managers and Joint Lead Underwriters shall assume the joint and several liabilities in presiding over the arrangement to provide the full amount of Loan under this Agreement.
13.3 Since the Joint Lead Underwriters, under the Loan Arrangement herein, take the responsibility to underwrite the Loan on firm commitment basis, when any Lending Bank fails to provide its share of the Loan to the account designated by the Agency Bank pursuant to the instruction of the Agency Bank, the Joint Lead Underwriters shall, in lieu of such Lending Bank, provide Loan to the Borrower, and each Lending Bank undertakes to compensate the Agency Bank and/or Joint Lead Underwriters for any cost, loss, compensation, and other direct relevant expenses in any form resulting therefrom; such compensation shall be paid within FIFTEEN (15) days upon receiving the written Payment Notice to such Lending Bank delivered by the Agency Bank. In the event of any disputes with regard to such compensation, the payment shall be made by the Lending Bank before taking any other measures to deal with the disputes. The Lending Bank undertakes that it will not refuse to pay or delay to pay such compensation on the ground of existing disputes.
13.4 The documents and information concerning this Agreement provided by the Borrower to the Lending Banks shall be used for the sole purpose of making the Loan Arrangement under this Agreement unless otherwise required by laws and regulations or the context herein.
ARTICLE FOURTEEN EVENTS OF DEFAULT AND OTHER SIMILAR EVENTS
第14条 违约事件和其他类似事件
14.1 Events of Default
Each of the following is an Event of Default:
1) The Borrower fails to pay on schedule any amount that is due and payable under this Agreement or any other loan documents and in a manner pursuant to their provisions (excluding during theExtension);
2) The Borrower or any Guarantor under this Agreement fails to duly and timely fulfill or abide by their respective obligations under such documents; and regarding the rectifiable Event of Default and Event of Default excluding the inability of payment, they, upon receiving the notice of a written request to rectify such default issued by the Agency Bank pursuant to the provision set out in Article 14.4 hereunder, fail to make rectification within TWENTY-EIGHT (28) Bank Business Days (or a longer period possibly approved at the bank syndicate meeting) pursuant to the provision of Article 14.4;
3) Any representations, warranties and/or undertaking made in loan documents or in connection with loan documents by the Borrower or any Guarantor under this Agreement is deemed as being wrong or misleading in material aspect by the Agency Bank;
4) The occurrence of any event having similar effect as any of the aforesaid event (details may vary) which relates to any other party (excluding Lending Banks) under the loan documents and have material adverse effect upon the financial condition of the Borrower;
14.2 Cross Event of Default
1) Any debt and other amount become or are declared to be due and payable prior to the stated maturity date are not repaid on the maturity date and as a result, the Borrower's ability to repay the principal and pay the interest of the Loan is materially affected;
2) The Borrower fails to repay any debt on the stated maturity date and fails to make rectifications within the corresponding grace period, and as a result, the Borrower's ability to repay the principal and pay the interest of the Loan is materially affected;
3) Any other creditor obtains the ownership of the entire or any part of the Borrower's business or assets, or the arbitration award or judgment is enforced against any assets of the Borrower, and as a result, the Borrower's ability to repay the principal and pay the interest of the Loan is materially affected;
4) The Borrower stops to pay due and payable sum to any other creditor, fails to repay any debt at maturity or seeks to reach any compromise or other arrangement with any other creditor, or is declared to be insolvent;
14.3 Anticipatory Event of Default (Determined at the Bank Syndicate Meeting)
1) The Borrower or Guarantors terminate or probably will terminate the operation of their business or any material part of their business, or the Borrower disposes of its entire business or assets or any material part of its business or assets, and as a result, the Borrower's ability to repay the principal and to pay the interest of the Loan is materially affected;
2) The financial condition of the Borrower or Guarantors experiences any material adverse change, or their ability to perform the this Agreement experiences any material adverse change;
3) Material undertakings or substantial guarantee provided by the Borrower or any material security interest of any form set upon its business, assets, proceeds, and other aspects;
4) Material undertakings or substantial guarantee provided by the Guarantors or any material security interest of any form set upon their business, assets, proceeds, and other aspects, and as a result, the Guarantors' fulfillment of the guarantee obligation is thereby materially and adversely affected (excluding the arrangement under this Agreement).
14.4 In the event of Event of Default, Cross Event of Default, and Anticipatory Event of Default on the part of the Borrower, or violation of the relevant stipulations of the negative covenants by the Borrower, the Agency Bank may, if the Borrower does not make rectifications within TWENTY-EIGHT (28) Bank Business Days upon receiving the notice of a written request to rectify such default from the Agency Bank, deliver to the Borrower a written notice declaring (a) the occurrence of the Event of Default and/or Anticipatory Event of Default, and (b) that the Loan becomes mature on the TWENTY-THIRD (23rd) Bank Business Day from Borrower's receipt of
such maturity notice without the need to make a request, deliver a notice or conduct other legal procedure or other procedure of any kind.
ARTICLE FIFTEEN DEFAULT INTEREST AND COMPENSATION
第15条 罚息和赔偿
15.1 Default interest accrues and is calculated and collected on overdue amountor diverted amount of the Loan, beginning from the date of becoming overdue or diversion, in accordance with the default interest rate set by PBOC, until the principal and interest is paid in full. In the event of a change in default interest rate, the interest is calculated in separate periods. Compound interest accrues and is calculated on a quarterly basis at the default interest rate on the default interest that is not paid. In the event of certain amount becoming overdue and being diverted, no cumulative default interest will be paid and the higher of (a) default interest accrued on the overdue amount and (b) default interest accrued on the diverted amount, will be paid by the Borrower.
1) On the date of the execution of this Agreement, the default interest rate for overdue loan is 0.021 percent per day, and that for diverted loan is 0.05 percent per day. The method of default interest calculation is as follows:
i. Default Interest for Overdue Loan = the Principal of the OverdueLoan x Daily Default Interest Rate for Overdue Loan x Actual Days Overdue; Interest on Unpaid Default Interest = Payable Default Interest on Overdue Loan x Daily Default Interest Rate for Overdue Loan x Actual Days Overdue.
ii. Default Interest for Diverted Amount of the Loan = the Diverted Principal Amount of the Loan x Daily Default Interest Rate for Diverted Amount of the Loan x Actual Days Overdue;Interest on Unpaid Default Interest = Payable Default Interest on Diverted Amount of the Loan x Daily Default Interest Rate for Diverted Amount of the Loan x Actual Days Overdue.
iii. The due and unpaid interest is classified into the principal on the Interest Payment Date.
2) The aforesaid default interest rate for overdue loan and/or diverted loan as well as the default interest calculation methods are subject to adjustments from time to time in accordance with the regulations concerning the default interest rate and default interest calculation methods promulgated by PBOC from time to time.
15.2 The Borrower shall, through the Agency Bank, compensate the Agency Bank and Lending Banks the entire actual losses, liabilities, damages, costs and expenses resulting from any Event of Default on the part of the Borrower or the Borrower's failure to fulfill its obligations under the loan documents.
ARTICLE SIXTEEN TRANSFER第16条 转让
16.1 This Agreement shall be binding upon the Borrower, and the Borrower shall not transfer any right and obligation under this Agreement without prior unanimous written consent from the Agency Bank and Lending Banks.
16.2 This Agreement shall be binding upon Lending Banks and their successors and transferees stipulated herein, and one Lending Bank may, at any time, transfer its entire or part of the rights and interest under this Agreement and other loan documents to another Lending Bank, and the Borrower shall be notified of such transfer on a timely basis upon the completion of the transfer; in case the Lending Bank needs to transfer its entire or part of the rights and interest under this Agreement and other loan documents to other banks or financial institutions other than the Lending Banks, it shall obtain a prior written consent from the Borrower (the Borrower shall not unreasonably withhold such consent), and such written consent shall be made within TEN (10) Bank Business Days from the receipt of Agency Bank's notice by the Borrower. In case that the
Borrower accepts such transfer,all agreements, representations, warranties, and covenants made by the Borrower herein shall apply to the interest of transferees and Lending Banks.
16.3 The Lending Banks may disclose to the potential transferees or banks accepting the transferred loan non-public information concerning the Borrower that the Lending Banks deem it appropriate. However, prior to the disclosure of such information, the Lending Banks shall, through the Agency Bank, notify the Borrower in writing, and the Borrower shall, within FIVE (5) Bank Business Days from receiving the written notice, make a reply to the Agency Bank regarding whether or not it agrees. In case that the Borrower does not agree, it shall state the reasons; in case that the Borrower, within FIVE (5) Bank Business Days from receiving the written notice, does not make a reply, it shall be deemed to consent.
ARTICLE SEVENTEEN NOTICES第17条 通知
17.1 Notices and requests pursuant to the stipulations herein shall be in writing and be sent to the following addresses or numbers:
17.2 The date of receipt of the aforesaid written notice or request refers to:
1) If sent by a courier, the date of delivery to the address is the date of receipt;
2) If delivered by an established express mail service company, the SECOND (2nd) day after it is submitted to the express mail service company is the date of receipt; or
3) If transmitted by telex or fax, either the date with the confirmation from the facsimile machine or the date of sending the fax is the date of receipt.
The Guarantors may, for the purpose stated herein, through delivering a notice in writing to the Agency Bank, change their addresses and means of communication.
ARTICLE EIGHTEEN GOVERNING LAW AND JURISDICTION
第18条 适用法律和管辖
18.1 This Agreement shall be governed by and interpreted in accordance with the law of the People's Republic of China.
18.2 Any lawsuit arising out of or relating to this Agreement shall be filed at the people's court where the Joint Lead Managers are located. The parties hereby agree that they will be irrevocably subject to the jurisdiction of such court.
ARTICLE NINETEEN INSURANCE第19条 保险
19.1 The Borrower and Guarantors shall purchase insurances required by relevant laws or regulations, competent authorities of the industry, or compulsory insurances of the industry.
ARTICLE TWENTY OTHER STIPULATIONS第20条 其他约定
20.1 Amendment and Waiver 修改和弃权
Amendment and waiver of any article under this Agreement as well as waivers to abandon the right to claim against the default under this Agreement shall be made in writing and be effective only upon the execution with the official seal stamped by the legal representatives or authorized signers of the Agency Bank, Lending Banks, and the Borrower.
20.2 Rights/Powers 权利/权力
The failure to exercise or delay to exercise any right, power, decision power or any other right or power under this Agreement by the Agency Bank and Lending Banks shall not be deemed as the abandonment of such right, power or decision power; any separate or partial performance of such right, power, decision power or any other right or power shall not restrict the complete or further exercise of such right, power, decision power or any other right or power; the rights, powers, and remedial measures stipulated herein are cumulative, not excluding any other rights, powers, and remedial measures provided by law.
20.3 The Entire Agreement 完整的协议
This Agreement and the loan documents mentioned herein constitute the entire rights and obligations of the Borrower, Joint Lead Managers, Joint Lead Underwriters, the Agency Bank, Member Banks, and Lending Banks, and shall supersede any intent or agreement in connection with this Loan Arrangement prior to the execution of this Agreement.
20.4 Copies 副本
The Agreement is prepared in EIGHTEEN (18) originals. Each of the Joint Lead Managers/Joint Lead Underwriters, Member Banks/Lending Banks, the Agency Bank, the Borrower and Guarantors shall keep one copy. Each original shall have the same validity. The originals of this Agreement shall be executed and stamped with the official seals by the formal authorized representatives of the parties to this Agreement.
20.5 Effectiveness 生效
This Agreement is executed on October 7, 2000, in Beijing. The Agreement becomes effective on the execution date.
IN WITNESS WHEREOF the duly authorized representatives of the Parties hereto have duly executed this Agreement.
BORROWER: CHINA MOBILE (SHENZHEN) LIMITED (Official Seal)
SCHEDULE THREE FORM OF DRAWDOWN NOTICE
附录三 提款通知格式
To: Construction Bank of China, Shenzhen Branch
RE: SYNDICATED LOAN AGREEMENT ON
RENMINBI 7,500,000,000 LOAN
In accordance with the stipulations under Article Three of the Syndicated Loan Agreement executed on the date of October 7, 2000, China Mobile (Shenzhen) Limited (the "Company") has satisfied all the conditions precedent to the withdrawal and is qualified to withdraw the advancement in any other aspect.
The Company hereby irrevocably notifies you (the "Bank") that the Company plans to withdraw [in one lump sum] the Advancement of RMB [000,000,000] on the date of [ ],200[ ] in accordance with the Loan Arrangement and delivers this notice accordingly. The advancement of the withdrawal shall be paid in accordance with stipulations under Article Nine of the Agreement.
The Company hereby acknowledge:
(1) No Event of Default or Anticipatory Event of Default occurs on the part of the Borrower;
(2) All the representations, warranties and Covenants made by the Borrower in the Agreement are true, correct and effective;
(3) All relevant documents regarding conditions precedent to the drawdown under Article 3.2 submitted to the Agency Bank by the Borrower are still true, correct and effective.
Terms used in this notice shall have the same meaning as defined in the Syndicated Loan Agreement.
China Mobile (Shenzhen) Limited (Official Seal)
Authorized representative:
SCHEDULE FOUR FORM OF PREPAYMENT NOTICE
附录四 提前还款通知格式
To: Construction Bank of China, Shenzhen Branch
RE: SYNDICATED LOAN AGREEMENT ON
RENMINBI 7,500,000,000 LOAN
In accordance with the stipulations under Article Five of the Syndicated Loan Agreement executed on the date of October 7, 2000, we plan to repay the amount of the Loan prior to its maturity to you and hereby irrevocably deliver this Notice accordingly. The principal of the Prepayment shall be Renminbi [000,000,000]. Prepayment shall be made on the date of [ ], [ ]. Detailed arrangement of the prepayment shall be in accordance with Article 5.4 under the Syndicated Loan Agreement.
We hereby acknowledge:
(1) Representations, warranties and Covenants under Article Eleven and Twelve are still true and correct on the date of the delivery of the Notice herein; and
(2) By the date of the delivery of this Notice, there has been no Event of Default or Anticipatory Event of Default that has not been cured or corrected.
Terms used in this Notice shall have the some meaning as defined under the Syndicated Loan Agreement.
China Mobile (Shenzhen) Limited (Official Seal)
Authorized representative:
SCHEDULE FIVE FORM OF REPLY TO PREPAYMENT NOTICE
附录五 提前还款通知回复格式
To: China Mobile (Shenzhen) Limited
RE: YNDICATED LOAN AGREEMENT ON RENMINBI 7,500,000,000 LOAN
We have received and reviewed the Prepayment Notice you delivered on the date of [ ], 200[ ]. Terms of prepayment shall be in accordance with the stipulations under the Syndicated Loan Agreement executed on the date of [ ], of which:
1. Principal of prepayment shall be _________;
2. As of the prepayment date ( )indicated in the Prepayment Notice, the due and payable interest on the principal amount of the prepayment shall be _____;
You shall pay the prepayment principal and its due and payable interest,____ in full, to our account as follows:
Construction Bank of China, Shenzhen Branch (Official Seal)
Authorized representative: _______
SCHEDULE SIX FORM OF PAYMENT NOTICE
附录六 付款通知格式
To: China Mobile (Shenzhen) Limited
RE: SYNDICATED LOAN AGREEMENT ON RENMINBI 7,500,000,000 LOAN
The Amount you borrowed on the date of October 7, 2000 in accordance with the Syndicated Loan Agreement will mature on the date of [ ], 200[ ]. In accordance with the provisions of Article 5 of the Syndicated Loan Agreement, please pay upon maturity of the Loan due principal and interest in full to the following accounts of the Bank:
Terms used in this Notice shall have the same meaning as defined under the Syndicated Loan Agreement.
Construction Bank of China, Shenzhen Branch (Official Seal)
Authorized representative:
SCHEDULE SEVEN FORM OF LETTER OF GUARANTEE
附录七 担保函格式
GUARANTEE
To: Construction Bank of China, Bank of China and other Lending Banks indicated in Schedule One of the Syndicated Loan Agreement
Re: Provision to the Lending Banks of irrevocable and unconditional
guarantee with joint liabilities regarding the Syndicated Loan Agreement (RMB7,500,000,000) (the "Loan Agreement") executed on the date of October 7, 2000 between China Mobile (Shenzhen) Limited and Construction Bank of China, Bank of China and other Lending Banks listed in Schedule One of the Syndicated Loan Agreement (the "Lending Banks").
[ ] Mobile Communication Company Limited (the "Guarantor") is a wholly foreign-owned limited liability company established and existing under the laws of the People's Republic of China ("China"), with its registered address of its headquarter at [ _____ ]. In accordance with Security Law of the People's Republic of China (the "Security Law") and other relevant laws and regulations, the Guarantor hereby provides the Lending Banks with a Guarantee in favor of the Lending Banks and undertakes to perform its obligations in accordance with stipulations under this Guarantee.
WHEREAS:
China Mobile (Shenzhen) Limited (the "Borrower"), a wholly foreign-owned limited liability company established and existing under the laws of China, will execute the Loan Agreement on the same date of the execution of the Letter of Guarantee. The Loan Agreement Provides that the total amount of the principal of the loan (the "Loan") granted to the Borrower by the Lending Banks shall not exceed Renminbi seven billion five hundred million (RMB 7,500,000,000.00).
The condition precedent to the Lending Banks' assumption of the obligation to disburse the Loan under the Loan Agreement is, including but not limited to, the receipt by the Agency Bank of the unconditional and irrevocable Guarantee in favor of the Lending Banks issued by the Guarantor, guaranteeing that the Borrower will pay all the payable sums from time to time to the Lending Banks through the Agency Bank on a timely basis in accordance with the Loan Agreement.
Therefore, this Guarantor hereby agrees that the Guarantor and other Guarantors, including [ ] Mobile Communication Company Limited, [ ] Communication Company Limited, [ ] Mobile Communication Company Limited, [ ] Mobile Communication Company Limited and [ ] Mobile Communication Company Limited (the "Guarantors") shall assume joint and several liabilities for all debts, responsibilities and obligations stipulated under the Loan Agreement, and that the Guarantor and the Borrower under the Syndicated Loan Agreement shall assume joint and several liabilities for all debts, responsibilities and obligations stipulated under the agreement.
Unless otherwise stipulated, terms used this Letter of Guarantee shall have the same meaning as defined in the Loan Agreement.
The Guarantor hereby further agrees:
1. As the surety with joint liabilities and/or joint guarantee liabilities (similarly hereinafter), the Guarantor and other Guarantors indicated hereby absolutely and unconditionally guarantee to the Agency Bank and the Lending Banks that the Borrower shall make payments in full, promptly and on a timely basis when any part of and/or all the principal, interest, Default Interest, compensation, fees to satisfy creditor's claim and other amounts fall due whether pursuant to the provisions, as a result of accelerated repayment or otherwise in accordance with the stipulations under the Loan Agreement, and any and/or all of any other relevant documents and agreements; the Guarantor understands and acknowledges that in accordance with the Security Law, (1) the Lending Banks may request the Borrower to perform its liabilities or request the Guarantor to assume its guarantee liabilities within the limit of the Guarantee in the event that Borrower under the Guarantee with joint liabilities has not performed its liabilities before the deadline for performance of the liabilities; i.e.,upon the Borrower's failure to pay the due and payable sum under the Loan Agreement and the occurrence of events and circumstances of default, the Agency Bank may first request payment from the Guarantors who assume joint liabilities for debts together with the Borrower and need not first request payment from the Borrower; (2) in the event that two or more than two Guarantors assume joint guarantee liabilities, the Lending Banks may request any one of
them to assume the entire guarantee liabilities. All Guarantors shall assume the obligation to guarantee the satisfaction of the entire creditor's claim.
2. Upon occurrence of Event of Default in the payment of partial or entire guaranteed obligation on the part of the Borrower, or upon occurrence of Event of Default or Anticipatory Event of Default, the Guarantors, as surety assuming joint guarantee liabilities, shall immediately pay the
entire amount of the due and payable guaranteed liabilities of the Borrower (whether as a result of acceleration or otherwise) to the Agency Bank in favor of the Lending Banks in accordance with instructions of the Agency Bank, stipulations under the Loan Agreement and in the manner required thereby. The Guarantors shall not advance any claim, set-off, counterclaim or defense to the Agency Bank or any Lending Bank regarding the partial or entire payment.
3. Upon occurrence of Event of Default or Anticipatory Event of Default hereof, if no corrections have been made within the correction period of twenty eight (28) working days stipulated under Article 14.4 of the Loan Agreement, the Lending Banks shall be vested the power to deliver Notice of Claims accompanied with certificates regarding the Borrower's non-payment of any of the due and payable amount to the Guarantors, who, upon receipt of the above Notice of Claims, shall perform its guarantee obligation in accordance with the amount indicated in the Notice of Claims. Notwithstanding the foregoing, should the loan principal and/or interest under the Loan Agreement not be repaid and/or paid, the Lending Banks shall be vested the power to deliver Notice of Claims accompanied with certificates regarding the Borrower's non-payment of such principal and/or interest to the Guarantors, who, upon receipt of the above Notice, shall perform its guarantee obligation in accordance with the amount indicated in the Notice of Claims.
4. The obligations of the Guarantors shall be absolute and unconditional and shall not be limited or affected by any circumstances, including (but not limited to) (1) the Borrower's failure to perform or comply with the Loan Agreement or any stipulations under any such documents or agreements;
(2) transfer by the Borrower for the benefit of the Creditor (not limited to the Creditor's interest under this Guarantee), request to nominate a Recipient, Trustee or Liquidator for the Borrower or any of its assets, upon declaration of liquidation or filing of the request of liquidation on the part of the Borrower, or any other measures taken for the above purposes; (3) changes in the Borrower's name, scope of business, registered capital or organization documents; or (4) any other circumstances that may constitute a relief of obligations that shall be assumed by a guarantor or surety.
5. The Lending Banks may neglect or restrain the enforcement of the Guarantee, the Loan Agreement or of the payment under any other relevant guarantees, documents or agreements, however, such negligence or restraint shall not affect or mitigate the Guarantors' obligations under the Guarantee herein. Guarantors shall not request the Agency Bank to make enforcement of the Loan Agreement or any other guarantees as a prerequisite of the enforcement of the Guarantee herein. The Failure to enforce the Loan Agreement or any other guarantees shall not affect or mitigate the Guarantee herein or defend against the Guarantee herein for such reasons.
6. The Guarantors undertakes that they shall remain the wholly owned subsidiaries directly or indirectly owned by CMHK in China within the term of the Loan Agreement.
7. Debts, responsibilities or liabilities guaranteed by the Guarantee herein may at any moment be renewed, extended, amended, compromised, exempted or abandoned by the Agency Bank or Lending Banks upon request of the Borrower, and such conducts shall not impair or affect the Guarantors' liabilities under the Guarantee herein; and the guarantee liabilities of the Guarantors under the Guarantee herein shall also apply to the above renewal, extension, amendment or compromise by the Agency Bank and Lending Banks.
8. The Guarantee is a continuous guarantee, which covers any debts under the guaranteed liabilities. However, before the Agency Bank is vested the power to receive any debts under the guarantee liabilities, it shall have no obligation to exhaust its right of recourse against the Borrower, nor shall it have any obligation to exhaust its right of recourse the Agency Bank or certain Lending Banks may have against any Guarantor or any guarantee. This Guarantee shall be irrevocable and with full force before the full performance of the guaranteed obligations and the full payment of any indebted amount under the guarantee. The Guarantors shall waive the defense arising from any time limit that might affect the obligations hereunder or the enforcement hereof.
9. Prior to the full payment and/or repayment of the principal, interest and/or other amounts under the Loan Agreement, the Guarantor shall not have the right of subrogation obtained as a result of its performance of any of the guarantee liabilities hereunder. Notwithstanding the foregoing, in the event that the Guarantor receives any sums as a result of its entitlement to such right of subrogation while one of the guaranteed obligations has not been performed, the Guarantor shall agree to pay all such sums to the Agency Bank to offset the amount over due under stipulations of the Loan Agreement.
10. The Guarantors agree to pay all fees and charges related to the enforcement of this Guarantee.
11. The Guaranteed obligations hereunder shall be obligations guaranteed in the form of Renminbi and paid by the Guarantors in accordance with the Guarantee in Renminbi. In any circumstances, Renminbi shall be the currency used in the account and payment.
12. Any Notice or Request delivered to the Guarantors shall be in writing, and (1) delivered by special messenger; (2) sent by reputable courier service, or (3) transmitted by telex or facsimile. The address of the Guarantor: Name of the Company: [ ], Address: [ ], Postal Code: [ ], Contact: [ ], Telephone Number: [ ], Fax: [ ], E-mail: [ ]. The date of Notice or Request referred to herein shall be (1) the day of the receipt thereof if by delivery by special messenger; (2) the next day following the delivery to the courier service company if delivered by a creditable courier service; or (3) the fourth day following the delivery to the postal service if delivered by post-paid registered mail; (4) the delivery date with confirmation of acceptance if delivered by telex or facsimile. For the purpose hereof, the Guarantor may change its address by a written notice to the Agency Bank.
13. This Guarantee shall be equally binding upon the Guarantor, its successorand the transferees and may be enforced by the Agency Bank, the Lending Banks, its successors and transferees. The Guarantor shall have no right to assign or to otherwise transfer the obligations hereunder. The Lending Bank may transfer part or all of its rights and interest hereunder to another Lending Bank at any time, in which case the Guarantor shall be promptly informed of such a transfer upon completion of the transfer; in the event that the Lending Bank needs to transfer its rights and interest hereunder to a bank or financial institution other than the Lending Banks, the Lending Bank shall obtain the consent of the Guarantors first (which consent shall not be unreasonably withheld). The Guarantors' Obligations hereunder shall not be Limited or affected in anyway by the above assignment or transfer. Any of the above assignment and transfer shall come into effect and be binding on the Guarantors upon the date of such assignment or transfer.
