Preview | Facility Agreement |

CONTENTS


CLAUSE		PAGE
Section 1			1

Interpretation			1

1.	Definitions And Interpretation		1

Section 2			13

The Facility			13

2.	The Facility		13

3.	Purpose		13

4.	Documents To Be Delivered Before First Utilisation		13

Section 3			14

Utilisation			14

5.	Utilisation		14

Section 4			15

Repayment, Prepayment And Cancellation			15

6.	Repayment		15

7.	Prepayment And Cancellation		15

Section 5			19

Costs Of Utilisation			19

8.	Interest		19

9.	Interest Periods		20

10.	Changes To The Calculation Of Interest		20

11.	Fees		22

Section 6			23

Additional Payment Obligations			23

12.	Tax Gross Up And Indemnities		23

13.	Increased Costs		25

14.	Other Indemnities		26

15.	Mitigation By The Lenders		27

16.	Costs And Expenses		27

Section 7			29

Representations, Undertakings And Events Of Default			29

17.	Representations		29

18.	Information Undertakings		33

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CLAUSE		PAGE
19.	Financial Covenants		35

20.	General Undertakings		36

21.	Events Of Default		41

Section 8			46

Changes	To Parties		46

22.	Changes To The Lenders		46

23.	Changes To The Borrower		49

Section 9			50

The Finance Parties			50

24.	Role Of The Agent And The Arrangers		50

25.	Conduct Of Business By The Finance Parties		54

26.	Sharing Among The Finance Parties		55

Section 10			57

Administration			57

27.	Payment Mechanics		57

28.	Set-Off		59

29.	Notices		59

30.	Calculations And Certificates		61

31.	Partial Invalidity		61

32.	Remedies And Waivers		61

33.	Amendments And Waivers		62

34.	Counterparts		62

Section 11			63

Governing Law And Enforcement			63

35.	Governing Law		63

36.	Enforcement		63

Schedule 1 The Original Lenders			64

Schedule 2 Documents To Be Delivered			65

Schedule 3 Requests			67

Schedule 4 Form Of Transfer Certificate			69

Schedule 5 Form Of Compliance Certificate			71

Schedule 6 Timetables			72

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THIS AGREEMENT is dated 25 April 2007 and made between:

(1)		TOM GROUP LIMITED as borrower (the Borrower);

(2)		DBS BANK LTD. (an Arranger);

(3)		THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED (an Arranger and together with the other Arranger, the Arrangers)

(4)		THE FINANCIAL INSTITUTIONS listed in of Schedule 1 (The Original Lenders) as lenders (the Original Lenders); and

(5)		DBS BANK LTD., HONG KONG BRANCH as agent of the Finance Parties (other than itself) (the Agent).

IT IS AGREED as follows:

SECTION 1

INTERPRETATION

1.		DEFINITIONS AND INTERPRETATION

1.1		Definitions

		In this Agreement:

		Affiliate means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.

		Agents Spot Rate of Exchange means the Agents spot rate of exchange for the purchase of the Base Currency with Hong Kong Dollars in the Hong Kong foreign exchange market at or about 11:00 a.m. (Hong Kong time) on the relevant day.

		Authorisation means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration.

		Availability Period means the period from and including the date of this Agreement to and including the Facility Termination Date.

		Available Commitment means a Lenders Commitment minus:

	(a)		the Base Currency Amount of its participation in any outstanding Loans; and

	(b)		in relation to any proposed Utilisation, the Base Currency Amount of its participation in any Loans that are due to be made on or before the proposed Utilisation Date.

Available Facility means the aggregate for the time being of each Lenders Available Commitment.

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Base Currency means US Dollars.

Base Currency Amount means, in relation to a Loan, the amount specified in the Utilisation Request delivered by the Borrower for that Loan (or, if the amount requested is not denominated in the Base Currency, that amount converted into the Base Currency at the Agents Spot Rate of Exchange on the date which is two Business Days before the Utilisation Date or, if later, on the date the Agent receives the Utilisation Request) adjusted to reflect any repayment of the Loan.

Break Costs means the amount (if any) by which:

(a)

the interest which a 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 its participation in the principal amount of a Loan or an Unpaid Sum to the last day of the current Interest Period in respect of that Loan or that Unpaid Sum, had the principal amount of the Loan or that Unpaid Sum so received or recovered been paid on the last day of that Interest Period;

exceeds:

(b)

the amount of interest which that Lender would be able to obtain by placing an amount equal to its participation in the principal amount of that Loan or that Unpaid Sum so received by it on deposit with a leading bank in the Relevant 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.

Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in Hong Kong, (in relation to any day for payment of US Dollars) New York City and (in relation to any determination of interest for loans denominated in US Dollars) London.

Commitment means:

	(a)		in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading Commitment in Schedule 1 (The Original Lenders) and the amount of any other Commitment transferred to it under Clause 22 (Changes to the Lenders); and

	(b)		in relation to any other Lender, the amount in the Base Currency of any Commitment transferred to it under this Agreement,

to the extent not cancelled, reduced or transferred by it under this Agreement.

Compliance Certificate means a certificate delivered pursuant to and in accordance with Clause 18.2 (Compliance Certificate) in form and substance satisfactory to the Agent.

Default means an Event of Default or any event or circumstance specified in Clause 21 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.

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Environmental Law means any applicable law or regulation which relates to:

	(a)		the pollution or protection of the environment;

	(b)		harm to or the protection of human health;

	(c)		the conditions of the workplace; or

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

Environmental Permits means any permit and other Authorisation and the filing of any notification, report or assessment required under any Environmental Law for the operation of the business of the Borrower or its Principal Subsidiaries conducted on or from the properties owned or used by the Borrower or its Principal Subsidiaries.

Event of Default means any event or circumstance specified as such in Clause 21 (Events of Default).

Facility means the term loan facility made available under this Agreement as described in Clause 2 (The Facility).

Facility Office means the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days written notice) as the office or offices through which it will perform its obligations under this Agreement.

Facility Termination Date means the date falling 11 Months after the date of this Agreement.

Fee Letter means any letter or letters dated on or about the date of this Agreement between the Arrangers and the Borrower (or the Agent and the Borrower) setting out any of the fees referred to in Clause 11 (Fees).

Final Maturity Date means the date falling 12 Months after the date of this Agreement.

Finance Document means this Agreement, any Fee Letter, the Letters of Comfort and any other document designated as such by the Agent and the Borrower.

Finance Party means the Agent, an Arranger or a Lender.

Financial Indebtedness means any indebtedness for or in respect of:

	(a)		moneys borrowed;

	(b)		any amount raised by acceptance under any acceptance credit facility;

	(c)		any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;

	(d)		the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with GAAP, be treated as a finance or capital lease;

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	(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 derivative transaction entered into to benefit from (and for the avoidance of doubt, excluding any derivative transaction to hedge against exposure to) fluctuations in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value 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.

GAAP means generally accepted accounting principles in Hong Kong.

Governmental Agency means any government or any governmental agency, semi-governmental or judicial entity or authority (including, without limitation, any stock exchange or any self-regulatory organisation established under statute).

Group means the Borrower and its Subsidiaries for the time being.

HIBOR means, in relation to any Loan:

	(a)		the applicable Screen Rate; or

	(b)		(if no Screen Rate is available for Hong Kong dollars for the Interest Period of that Loan) the arithmetic mean (rounded upwards to four decimal places if such mean is not already such a multiple) of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request quoted by the Reference Banks to leading banks in the Hong Kong interbank market,

as of the Specified Time on the Quotation Day for which an interest rate is to be determined for the offering of deposits in Hong Kong dollars and for a period comparable to the Interest Period for that Loan.

Holding Company means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.

Indirect Tax means any goods and services tax, consumption tax, value added tax or any tax of a similar nature.

Intellectual Property means any patents, trademarks, service marks, designs, business names, copyrights, design rights, moral rights, inventions, confidential information, knowhow and other intellectual property rights and interests, whether registered or unregistered.

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Interest Period means, in relation to a Loan, each period determined in accordance with Clause 9 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 8.3 (Default interest).

Lender means:

	(a)		any Original Lender; and

	(b)		any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 22 (Changes to the Lenders),

which in each case has not ceased to be a Party in accordance with the terms of this Agreement.

Letters of Comfort means the letters of comfort relating to this Agreement from each of the Sponsors to the Arrangers dated on or about the date of this Agreement.

LIBOR means, in relation to any Loan:

	(a)		the applicable Screen Rate; or

	(b)		(if no Screen Rate is available for the currency or Interest Period of that Loan) the arithmetic mean (rounded upwards to four decimal places if such mean is not already such a multiple) of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request quoted by the Reference Banks to leading banks in the London interbank market,

as of the Specified Time on the Quotation Day for which an interest rate is to be determined for the offering of deposits in the currency of that Loan and for a period comparable to the Interest Period for that Loan.

Loan means a loan made or to be made under the Facility or the principal amount outstanding for the time being of that loan.

Majority Lenders means:

	(a)		if there are no Loans then outstanding, a Lender or Lenders whose Commitments aggregate 66²/₃% or more of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated 66²/₃% or more of the Total Commitments immediately prior to the reduction); or

	(b)		at any other time, a Lender or Lenders whose participations in the Loans then outstanding aggregate 66²/₃% or more of all the Loans then outstanding.

Margin means 1 per cent. per annum.

Material Adverse Effect means a material adverse effect on (a) the business, operations, assets or condition (financial or otherwise) of the Borrower and its Principal Subsidiaries taken as a whole; (b) the ability of the Borrower to perform its obligations under the Finance Documents; or (c) the validity, legality or enforceability of this Agreement or the rights or remedies of any Finance Party under the Finance Documents.

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Month means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:

	(a)		(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.

The above rules will only apply to the last Month of any period.

Optional Currency means Hong Kong Dollars.

Original Financial Statements means in relation to the Borrower, the audited consolidated financial statements of the Group for the financial year ended 31 December 2006.

Party means a party to this Agreement.

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