Exhibit 10.27


 


	
  

  	
   

  	
  CLIFFORD
  CHANCE LLP

  



 


EXECUTION COPY


 


THE
SECOND AMENDMENT AGREEMENT


 


dated
OCTOBER 11, 2010


 


for


 


TIANJIN NEW HIGHLAND SCIENCE
AND TECHNOLOGY DEVELOPMENT CO., LTD.


as Borrower


 


with


 


DEUTSCHE BANK AG, HONG KONG
BRANCH


acting as Facility Agent


 


DEUTSCHE BANK AG, HONG KONG BRANCH


acting as Calculation Agent


 


and


 


DB TRUSTEES (HONG KONG)
LIMITED


acting as Security Agent


 






 


RELATING TO A


FACILITY AGREEMENT


DATED
8 JANUARY 2010 AS AMENDED AND RESTATED

PURSUANT TO AN AMENDMENT AGREEMENT DATED


11 JANUARY 2010


 






 

















 


CONTENTS


 


	
  Clause

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1.

  	
  Definitions And
  Interpretation

  	
  1

  
	
   

  	
   

  	
   

  
	
  2.

  	
  Restatement

  	
  3

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Representations

  	
  3

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Cayman Co Acknowledgement

  	
  3

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Continuity And Further
  Assurance

  	
  3

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Fees, Costs And Expenses

  	
  4

  
	
   

  	
   

  	
   

  
	
  7.

  	
  Miscellaneous

  	
  4

  
	
   

  	
   

  	
   

  
	
  8.

  	
  Governing Law

  	
  4

  
	
   

  	
   

  	
   

  
	
  Schedule 1 Conditions Precedent

  	
  5

  
	
   

  	
   

  	
   

  
	
  Schedule
  2 Amended And Restated Agreement

  	
  8

  



 

















 


THIS AGREEMENT is dated                                                 and
made between:


 


(1)                            TIANJIN NEW HIGHLAND SCIENCE AND TECHNOLOGY DEVELOPMENT
CO., LTD. , a wholly foreign-owned enterprise established under
the laws of the PRC (the “Borrower”);


 


(2)                            INTERNATIONAL PETROLEUM SERVICES CORPORATION LIMITED, a company incorporated in Hong Kong with company
number 1165755 (“Parentco”);


 


(3)                            SUPERPORT LIMITED, a BVI Business Company incorporated in the British Virgin Islands (“Holdco”);


 


(4)                            SINOTECH ENERGY LIMITED, an exempted company
incorporated in the Cayman Islands with company number 241866 (“Cayman Co”);


 


(5)                            DEUTSCHE
BANK AG, HONG KONG BRANCH as
Facility Agent;


 


(6)                            DEUTSCHE BANK AG, HONG KONG BRANCH as Calculation Agent; and


 


(7)                            DB TRUSTEES (HONG KONG) LIMITED  as Security Agent.


 


RECITALS:


 


(A)                    A facility agreement (the “Original
Facility Agreement”) dated 8 January 2010 was made between, among
others, the Borrower, Holdco, Parentco, Deutsche Bank AG, Hong Kong Branch as
Arranger, Calculation Agent and Facility Agent and DB Trustees (Hong Kong)
Limited as Security Agent, as amended and restated pursuant to an amendment
agreement dated 11 January 2010, and as further
amended from time to time prior to the date of
this Agreement.


 


(B)                      For good and valuable consideration the receipt of
which is hereby acknowledged by each Party, the Parties have agreed to amend
the Original Facility Agreement on the terms and conditions set out in the Amended and Restated
Agreement (as defined below).


 


(C)                      The Facility Agent is entering into this Agreement on
behalf of the Finance Parties in accordance with Clause 34.1 (Required consents) of the Original Facility Agreement.


 


IT IS AGREED as follows:


 


1.                                 DEFINITIONS
AND INTERPRETATION


 


1.1                           Definitions


 


In this Agreement:


 


“Amended and Restated
Agreement” means the Original Facility Agreement, as amended by this
Agreement, the terms of which are set out in Schedule 2 (Amended and Restated Agreement).


 


“Effective Date” means the date on which the Facility Agent
confirms to the Lenders and the Borrower that it has received each of the
documents and evidence listed in Schedule 1 (Conditions
Precedent) in form and substance satisfactory to the Facility Agent.


 


1

















 


“Restructuring Documents” means:


 


(a)                                      this Agreement;


 


(b)                                     the share charge in the
agreed form entered into or to be entered into between Premium Sino and the
Security Agent pursuant to which, among other things, Premium Sino grants
Security to the Security Agent over shares in Cayman Co (the “Share Charge over Cayman Co”);


 


(c)                                      the debenture in the agreed form entered into or to be
entered into between Cayman Co and the Security Agent pursuant to which, among
other things, Cayman Co grants Security over its assets to the Security Agent (the “Cayman Co
Debenture”);


 


(d)                                     the deed of release in relation to the Share
Charge over Holdco in
the agreed form granted or to be granted by the Security Agent in favour of Premium Sino
(the “Deed of Release”);


 


(e)                                      the share mortgage in the agreed form entered into or to be entered into
between
Cayman Co and the Security Agent pursuant to which, among other things, Cayman
Co grants Security to the Security Agent over all of the shares in Holdco (the “New Share Charge over Holdco”);


 


(f)                                        the amendment deed in relation to the
Security Trust Deed in the agreed form between, among others, the Borrower and
the Security Agent (the “Amendment to Security
Trust Deed”);


 


(g)                                     the Obligor Accession Letter (as defined in the Security Trust Deed) in respect of
Cayman Co’s accession to the Security Trust Deed (the “Cayman Co
Accession Letter”);


 


(h)                                     the first supplemental instruments to
instrument constituting Tranche A warrants, instrument constituting Tranche B warrants, instrument constituting Tranche C
warrants and instrument constituting Tranche D warrants (the “Relevant Warrants”) respectively, in each
case entered or to be entered into by Premium Sino as issuer, Cayman Co,
Holdco, Parentco and the Sponsor (the “First Supplemental
Instruments”); and


 


(i)                                         the second supplemental instruments to the
Relevant Warrants, in each case entered or to be entered into by Premium Sino
as issuer, Cayman Co, Holdco, Parentco and the Sponsor (the “Second Supplemental Instruments”).


 


“Obligors” means the Obligors (as defined in the Original
Facility Agreement) and Cayman Co.


 


1.2                           Incorporation
of defined terms


 


(a)                                      Unless a contrary indication appears, a term defined
in the Original Facility Agreement has the same meaning in this Agreement.


 


(b)                                     The principles of construction set out in the Original
Facility Agreement shall have effect as if set out in this Agreement mutatis mutandis.


 


2

















 


1.3                           Clauses


 


In this Agreement any reference to a “Clause”
or a “Schedule” is, unless the context otherwise requires, a reference to a
Clause or a Schedule to this Agreement.


 


1.4                           Designation


 


In accordance with the Original Facility
Agreement, each of the Borrower and the Facility Agent designates this
Agreement as a Finance Document.


 


2.                                 RESTATEMENT


 


With effect from the Effective Date, (a) the
Original Facility Agreement shall be amended and restated so that it shall be
read and construed for all purposes as set out in Schedule 2 (Amended and Restated Agreement); and (b) Cayman Co shall
become a party thereto; provided that the amendment and restatement referred to
in (a) is conditional upon the absence of any event or circumstance which would
invalidate any consent granted by the Transaction Warrant Holders (as defined
in the Security Trust Deed) in respect of any First Supplemental Instrument,
Second Supplemental Instrument or the transactions contemplated thereby.


 


3.                                 REPRESENTATIONS


 


3.1                           Repeating
representations


 


On the date of this Agreement and the Effective Date, each Obligor party hereto makes the representations
and warranties set out in Clause 18 (Representation)
of Schedule 2 (Amended and Restated
Agreement) to each Finance Party (by reference to the facts and
circumstances existing as at the date of this Agreement or the Effective Date (as
the case may be), and as if (a) any reference therein to the Original Facility Agreement or any Finance Document included a reference to this
Agreement and the Amended and Restated Agreement, and (b) any reference therein to any “
Obligor”, any “Obligor party hereto” or any “member of the Group” included a
reference to Cayman Co.


 


4.                                 CAYMAN
CO ACKNOWLEDGEMENT


 


Cayman Co confirms that it shall perform all the obligations
expressed to be binding upon it under,
and comply with and be bound by
all the terms of the Amended and Restated Agreement, as if Cayman Co were an original party to the Amended and Restated Agreement.


 


5.                                 CONTINUITY
AND FURTHER ASSURANCE


 


5.1                           Continuing
obligations


 


The provisions of the Original Facility
Agreement, as amended by this Agreement, shall continue in full force and
effect.  Each other Finance Document
shall continue in full force and effect.


 


5.2                           Further
assurance


 


Each Obligor party hereto shall (and shall
procure that each other Obligor shall), at the request of the Facility Agent
and at its own expense, do all such acts and things necessary or desirable to
give effect to the amendments effected or to be effected pursuant to this
Agreement.


 


3

















 


6.                                 FEES,
COSTS AND EXPENSES


 


6.1                           Transaction
expenses


 


The Borrower shall, within five Business Days
of demand, pay each of the Calculation Agent, the Facility Agent, the Security
Agent and the Arranger the amount of all costs and expenses (including without
limitation legal fees) properly incurred by any or all of them in connection
with the negotiation, preparation, printing and execution of this Agreement and
any other documents referred to in this Agreement.


 


6.2                           Enforcement
costs


 


The Borrower shall, within five Business Days
of demand, pay each of the Calculation Agent, the Facility Agent, the Security
Agent and the Arranger the amount of all costs and expenses (including legal
fees) incurred by any or all of them in connection with the enforcement of, or
the preservation of any rights under, this Agreement.


 


6.3                           Stamp
taxes


 


The Borrower shall pay and, within five
Business Days of demand, indemnify each Finance Party against any cost, loss or
liability that Finance Party incurs in relation to all stamp duty, registration
and other similar Taxes payable in respect of this Agreement.


 


7.                                 MISCELLANEOUS


 


7.1                           Incorporation
of terms


 


The provisions of Clause 30 (Notices), Clause 32 (Partial Invalidity), Clause 33 (Remedies and waivers) and Clause 37 (Enforcement) of
the Original Facility Agreement shall apply to this Agreement mutatis mutandis and as if references in those clauses to “this
Agreement” or any Finance Document were references to this Agreement.


 


7.2                           Counterparts


 


This Agreement may be executed in any number of
counterparts, and this has the same effect as if the signatures on the
counterparts were on a single copy of this Agreement.


 


8.                                 GOVERNING
LAW


 


This Agreement shall be governed by and shall
be construed in accordance the laws of Hong Kong.


 


This Agreement has been entered into on the date
stated at the beginning of this Agreement.


 


4

















 


SCHEDULE 1

CONDITIONS PRECEDENT


 


1.                                 Relevant
Obligors


 


In respect of each of the Borrower, Parentco, Holdco,
Cayman Co, Premium Sino and Wise Worldwide (each a “Relevant
Obligor”):


 


(a)                                      (in the case of the Borrower, Parentco,
Holdco, Premium Sino and Wise Worldwide) a certificate (signed on behalf of
that Relevant Obligor by a person authorised by the board of directors of that
Relevant Obligor) confirming that its constitutional documents are in full
force and effect and have not been amended, varied or supplemented (in each
case) from the form delivered to the Facility Agent under Schedule 2 (Conditions Precedent to Initial Utilisation) to the Original
Facility Agreement, or (if any such amendment, variation or supplement has been
made in respect of the constitutional documents of that Relevant Obligor) a
copy of the constitutional documents of that Relevant Obligor;


 


(b)                                     (in the case of Cayman Co) a copy of the constitutional
documents of Cayman Co including without limitation:


 


(i)                       its certificate of incorporation;


 


(ii)                    its memorandum of association;


 


(iii)                 its articles of association (which shall have been
amended to remove the discretion of the directors of Cayman Co in respect of
the registration of transfers of shares in Cayman Co); and


 


together with its statutory registers, including
its updated register of members, register of directors and register of
mortgages and charges;


 


(c)                                      copies of the resolution(s) of the board of directors of that Relevant Obligor
(save, in the case of the Borrower, if the legal advisers in the PRC to the
Facility Agent confirm in favour of the Facility Agent that the resolution(s)
of the board of directors of the Borrower delivered to the Facility Agent under
Schedule 2 (Conditions Precedent to Initial Utilisation)
to the Original Facility Agreement are sufficient for the following purposes):


 


(i)                       approving the terms of, and the transactions
contemplated by, the Restructuring Documents to which it is a party and resolving that it execute the Restructuring Documents to which it is a party;


 


(ii)                    authorising a specified person or persons to execute
the Restructuring
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 to be signed and/or
despatched by it under or in connection with the Restructuring Documents to which it is a party;


 


5

















 


(d)                                     a specimen signature of each person authorised by the
resolution(s) referred to in paragraph (c) above;


 


(e)                                      (in the case of Premium
Sino and Cayman Co only) a
certificate of (signed on behalf of that Relevant Obligor by a person authorised
by the board of directors of that Relevant Obligor) confirming that securing the Total Commitments (including any increase
thereto pursuant to the delivery of Lender Accession Memorandum(s) from time to
time) would not cause any security or similar limit binding on that Relevant Obligor to be exceeded; and and


 


(f)                                        a certificate of an authorised signatory of that Relevant Obligor certifying that each copy document specified in this
Schedule and/or any document or evidence delivered hereunder in copy form is
correct, complete and in full force and effect as at a date no earlier than the
date of such certificate.


 


2.                                 Sponsor


 


A certificate
(signed by the Sponsor) confirming that copies of his person identification
card, passport and household register that were delivered to the Facility Agent
under Schedule 2 (Conditions Precedent to
Initial Utilisation) to the Original Facility Agreement remain true,
complete and up-to-date copies of the same which are in full force and effect.


 


3.                                 Restructuring
Documents


 


(a)                                      Each of the Restructuring Documents (other
than the Deed of Release) duly executed by the parties thereto.


 


(b)                                     Evidence that unanimous written consent of the
relevant warrant holders in respect of each of the First Supplemental
Instruments, the Second Supplemental Instruments and the transactions
contemplated thereunder has been obtained.


 


(c)                                      All documents and evidence required, pursuant
to the terms of any of the Restructuring Documents, to be delivered promptly
upon execution of such Restructuring Document or prior to the Effective Date
(as defined in the Amendment to Security Trust Deed).


 


4.                                 Legal
opinions


 


(a)                                      A legal opinion of Clifford Chance, Hong Kong
legal adviser to the Facility Agent in form and substance satisfactory to the
Facility Agent.


 


(b)                                     A legal opinion of King and
Wood, legal advisers in the PRC to the Facility Agent in form and substance
satisfactory to the Facility Agent.


 


(c)                                      A legal opinion of Maples and Calder, legal
advisers as to British Virgin Islands law to the Borrower in form and substance
satisfactory to the Facility Agent.


 


(d)                                     A legal opinion of Maples and Calder, legal
advisers as to Cayman Islands law to the Borrower in form and substance
satisfactory to the Facility Agent.


 


6

















 


5.                                 Business


 


Amendments to the Sponsor Non-Compete Undertaking
in the agreed form duly executed by the parties thereto.


 


6.                                 Other documents and evidence


 


(a)                                      The group structure chart indicating the
group structure of Cayman Co and its Subsidiaries upon completion of the
Relevant Permitted Reorganisation (as defined in Schedule 2 (Amended and Restated Agreement)) and showing such
information as specified in Clause 18.25 (Group Structure Chart)
of the Original Facility Agreement.


 


(b)                                     Evidence of application to
SAFE for the filing of the particulars of this Agreement and the Amended and
Restated Agreement, if such filing is necessary or desirable as advised by the
legal advisers in the PRC to the Facility Agent.


 


(c)                                      A copy of the updated register of members and
register of transfers of Holdco, as certified by its registered agent.


 


(d)                                     A certificate of good standing in respect of
Cayman Co.


 


(e)                                      All documentation and other evidence as is reasonably requested by the Facility Agent (for any or all of the Finance Parties) in order for any or all of the Finance
Parties to carry out and be satisfied with the results of all necessary “know
your customer”, anti-money laundering and/or other similar checks under all
applicable laws and regulations in connection with any or all the Restructuring Documents and/or the transactions contemplated
thereunder.


 


(f)                                        Evidence that each of the
process agents (which is not a member of the Group) referred to in Clause 37.2
(Service of Process) of the Amended and
Restated Agreement (in respect of its appointment by Cayman Co) and/or in any
other Restructuring Document has accepted its appointment.


 


(g)                                     Evidence that the fees,
costs and/or expenses then due from any Obligor pursuant to Clause 5 (Fees, Costs and Expenses) or any Transaction Warrant
Document have been paid or will be paid by the Effective Date.


 


(h)                                     A copy of any other
Authorisation or other document, opinion or assurance which the Facility Agent
considers to be necessary or desirable (if it has notified the Borrower
accordingly) in connection with (i) the entry into and/or performance of the
transaction contemplated by any Restructuring Document or Transaction Finance
Document and/or (ii) for the legality, validity and/or enforceability of any
Restructuring Document or Transaction Finance Document.


 


7














 


SCHEDULE 2

AMENDED AND RESTATED AGREEMENT


 


(see
following page)


 


8














 




	
  

  	
   

  	
  

  






 


EXECUTION COPY


 


FACILITY AGREEMENT


dated 8 January 2010


 


and


 


AS
AMENDED AND RESTATED PURSUANT TO AN AMENDMENT AGREEMENT


dated 11 January 2010


 


and


 


AS FURTHER AMENDED AND RESTATED
PURSUANT TO A SECOND AMENDMENT AGREEMENT


dated October 11, 2010


 


for


 


TIANJIN NEW HIGHLAND SCIENCE
AND TECHNOLOGY DEVELOPMENT  CO., LTD.


as Borrower


 


arranged by


DEUTSCHE BANK AG, HONG KONG
BRANCH


 


with


 


DEUTSCHE BANK AG, HONG KONG BRANCH


acting as Calculation Agent


 


DEUTSCHE BANK AG, HONG KONG
BRANCH


acting as Facility Agent


 


and


 


DB TRUSTEES (HONG KONG)
LIMITED


acting as Security Agent


 










 


FACILITY AGREEMENT


 






 

















 


CONTENTS


 


	
  Clause

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
  Definitions And
  Interpretation

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  The Facility

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  Purpose

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  Accession Of Lenders

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  Conditions Of Utilisation

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  Utilisation

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  Repayment

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  Prepayment And Cancellation

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
  Interest

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
  Interest Periods

  	
   

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
  Changes To The Calculation
  Of Interest

  	
   

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
  12.

  	
  Fees

  	
   

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
  13.

  	
  Tax Gross Up And Indemnities

  	
   

  	
  46

  
	
   

  	
   

  	
   

  	
   

  
	
  14.

  	
  Increased Costs

  	
   

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
  15.

  	
  Other Indemnities

  	
   

  	
  50

  
	
   

  	
   

  	
   

  	
   

  
	
  16.

  	
  Mitigation

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
  17.

  	
  Costs And Expenses

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
  18.

  	
  Representations

  	
   

  	
  54

  
	
   

  	
   

  	
   

  	
   

  
	
  19.

  	
  Information Undertakings

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  
	
  20.

  	
  Financial Covenants

  	
   

  	
  69

  
	
   

  	
   

  	
   

  	
   

  
	
  21.

  	
  General Undertakings

  	
   

  	
  74

  
	
   

  	
   

  	
   

  	
   

  
	
  22.

  	
  Events Of Default

  	
   

  	
  92

  
	
   

  	
   

  	
   

  	
   

  
	
  23.

  	
  Changes To The Lenders

  	
   

  	
  99

  
	
   

  	
   

  	
   

  	
   

  
	
  24.

  	
  Changes To The Obligors

  	
   

  	
  103

  
	
   

  	
   

  	
   

  	
   

  
	
  25.

  	
  Role Of The Transaction
  Agents And The Arranger

  	
   

  	
  104

  
	
   

  	
   

  	
   

  	
   

  
	
  26.

  	
  Conduct Of Business By The
  Finance Parties

  	
   

  	
  119

  
	
   

  	
   

  	
   

  	
   

  
	
  27.

  	
  Sharing Among The Finance
  Parties

  	
   

  	
  119

  
	
   

  	
   

  	
   

  	
   

  
	
  28.

  	
  Payment Mechanics

  	
   

  	
  122

  
	
   

  	
   

  	
   

  	
   

  
	
  29.

  	
  Set-Off

  	
   

  	
  126

  
	
   

  	
   

  	
   

  	
   

  
	
  30.

  	
  Notices

  	
   

  	
  127

  
	
   

  	
   

  	
   

  	
   

  
	
  31.

  	
  Calculations And
  Certificates

  	
   

  	
  129

  
	
   

  	
   

  	
   

  	
   

  
	
  32.

  	
  Partial Invalidity

  	
   

  	
  129

  



 

















 


	
  33.

  	
  Remedies And Waivers

  	
   

  	
  129

  
	
   

  	
   

  	
   

  	
   

  
	
  34.

  	
  Amendments And Waivers

  	
   

  	
  130

  
	
   

  	
   

  	
   

  	
   

  
	
  35.

  	
  Counterparts

  	
   

  	
  131

  
	
   

  	
   

  	
   

  	
   

  
	
  36.

  	
  Governing Law

  	
   

  	
  132

  
	
   

  	
   

  	
   

  	
   

  
	
  37.

  	
  Enforcement

  	
   

  	
  132

  
	
   

  	
   

  	
   

  	
   

  
	
  38.

  	
  Effectiveness

  	
   

  	
  132

  
	
   

  	
   

  	
   

  	
   

  
	
  39.

  	
  Registration And Approvals

  	
   

  	
  132

  
	
   

  	
   

  	
   

  	
   

  
	
  40.

  	
  Language

  	
   

  	
  133

  
	
   

  	
   

  	
   

  
	
  Schedule
  1

  	
  THE ORIGINAL TRANCHE ONE
  LENDERS

  	
   

  	
  134

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  2

  	
  CONDITIONS PRECEDENT FOR
  INITIAL UTILISATION

  	
   

  	
  135

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  3

  	
  FORM OF UTILISATION
  REQUEST

  	
   

  	
  140

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  4

  	
  FORM OF TRANSFER
  CERTIFICATE

  	
   

  	
  142

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  5

  	
  FORM OF COMPLIANCE
  CERTIFICATE

  	
   

  	
  145

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  6

  	
  BANK ACCOUNTS

  	
   

  	
  147

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  7

  	
  INTENTIONALLY LEFT BLANK

  	
   

  	
  167

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  8

  	
  FORM OF NOTICE OF
  INTENTION TO PUT

  	
   

  	
  168

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  9

  	
  FORM OF LENDER
  ACCESSION MEMORANDUM

  	
   

  	
  169

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  10

  	
  INTENTIONALLY LEFT BLANK

  	
   

  	
  172

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  11

  	
  INTENTIONALLY LEFT BLANK

  	
   

  	
  173

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  12

  	
  CONDITIONS PRECEDENT FOR
  SUBSEQUENT TRANCHES

  	
   

  	
  174

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  13

  	
  CONDITIONS SUBSEQUENT

  	
   

  	
  175

  
					



 

















 


THIS AGREEMENT is dated October 11, 2010 and amended and
restated pursuant to the Second Amendment Agreement (as defined below) and made
between:


 


(1)                            TIANJIN NEW HIGHLAND SCIENCE AND TECHNOLOGY DEVELOPMENT
CO., LTD. , a wholly foreign-owned enterprise established under
the laws of the PRC (the “Borrower”);


 


(2)                            INTERNATIONAL PETROLEUM SERVICES CORPORATION LIMITED, a company incorporated in Hong Kong with company
number 1165755 (“Parentco”);


 


(3)                            SUPERPORT LIMITED, a BVI Business Company incorporated in the British
Virgin Islands (“Holdco”);


 


(4)                            SINOTECH ENERGY LIMITED, an exempted company incorporated in the Cayman Islands (“Cayman Co”);


 


(5)                            DEUTSCHE
BANK AG, HONG KONG BRANCH as
co-ordinating arranger (the “Arranger”);


 


(6)                            THE FINANCIAL INSTITUTIONS listed in Schedule 1 (The Original Tranche One Lenders) as lenders (the “Original Tranche One Lenders”);


 


(7)                            DEUTSCHE
BANK AG, HONG KONG BRANCH as
calculation agent (the “Calculation Agent”);


 


(8)                            DEUTSCHE
BANK AG, HONG KONG BRANCH as
agent of the other Finance Parties (the “Facility
Agent”); and


 


(9)                            DB TRUSTEES (HONG KONG) LIMITED  as security trustee for the Secured Parties (the “Security Agent”).


 


IT IS AGREED as follows:


 


SECTION 1


INTERPRETATION


 


1.                                 DEFINITIONS
AND INTERPRETATION


 


1.1                           Definitions


 


In this Agreement:


 


“Accession
Date” means, with respect to any Lender Accession Memorandum, the
date on which it is delivered to the Facility Agent.


 


“Account
Control Agreement” means the account control agreement in agreed
form entered or to be entered into between the Borrower, the Security Agent and
the AM in relation to the accounts of the Borrower.


 


“Accounting
Principles” means generally accepted accounting principles in the
United States of America.


 


1

















 


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


 


“AM”
means China Construction Bank Corporation as account manager.


 


“Amendment Agreement”
means the amendment agreement dated 11 January 2010 between, amongst others, the Borrower, Deutsche Bank
AG, Hong Kong Branch as arranger, facility agent and security agent and DB
Trustees (Hong Kong) Limited as security agent.


 


“Amendment to Security
Trust Deed”
means the
amendment deed in relation to the Security Trust Deed in the agreed form
between, among others, the Borrower and the Security Agent.


 


“Approved
Audit Firm” means any one of Deloitte, Ernst & Young, KPMG,
PricewaterhouseCooper and Grant Thornton.


 


“Approved Capex Budget”
means:


 


(a)                                  in respect of the Initial Budget Period, the budget of Capital
Expenditure of the Borrower (other than Project Capital Expenditure), in agreed
form; and


 


(b)                                 in respect of any subsequent half yearly period immediately
following the half yearly period to which the preceding Approved Capex Budget
relates, the budget of Capital
Expenditure of the Borrower (other than Project Capital Expenditure) of the
Borrower for such subsequent  half year (showing Capital Expenditure (other than Project
Capital Expenditure) for each month in such subsequent half year)  as
approved by the Facility Agent (acting on the instruction of the Majority
Lenders) pursuant to Clause 21.27
(Budgets),


 


in each case specifying
whether and the extent to which such Capital Expenditure (other than Project
Capital Expenditure) is to be funded from (i) the Onshore Controlled Account
or (ii) any account other than the accounts specified in paragraph 1(a) of
Schedule 6 (Bank Accounts) respectively.  For the avoidance of doubt, to the extent
that any Capital Expenditure is specified in an Approved Capex Budget as to be
funded from account(s) other than the accounts specified in paragraph 1(a) of
Schedule 6 (Bank Accounts), such Capital Expenditure
shall not constitute Capital Expenditure that is permitted to be funded or
withdrawn from the Onshore Controlled Account pursuant to such Approved Capex
Budget.


 


“Approved Opex Budget”
means:


 


(a)                                in respect of the Initial Budget Period, the budget of Operating Expenditure of the Borrower for such half year (showing Operating Expenditure for each month during such half year), in agreed form; and


 


(b)                               in respect of any subsequent half yearly period immediately following the half
yearly period to which the preceding Approved Opex Budget relates, the budget of Operating Expenditure of the Borrower
for such
subsequent  half year (showing Operating Expenditure for each month in such subsequent half year)  as


 


2

















 


approved by the Facility
Agent (acting on the instruction of the Majority Lenders) pursuant to Clause 21.27 (Budgets),


 


in each case specifying
whether and the extent to which such Operating Expenditure is to be funded from
(i) the Onshore Controlled Account or (ii) any account other than the
accounts specified in paragraph 1(a) of Schedule 6 (Bank
Accounts) respectively.  For
the avoidance of doubt, to the extent that any Operating Expenditure is
specified in an Approved Opex Budget as to be funded from any account other
than the accounts specified in paragraph 1(a) of Schedule 6 (Bank Accounts), such Operating Expenditure shall not
constitute Operating Expenditure that is permitted to be funded or withdrawn
from the Onshore Controlled Account pursuant to such Approved Opex Budget.


 


“Approved Project Capex
Schedule” means the schedule of Capital Expenditure in agreed form
showing payments of Capital Expenditure to the LHD Vendor under (i) the Financed LHD Acquisition Agreement in respect of the acquisition of the Financed LHD
Units
and (ii) the Upcoming LHD Acquisition Agreement in respect of the
acquisition of the Upcoming LHD Units.


 


“Authorisation”
means:


 


(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 Government 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.


 


“Availability
Period” means:


 


(a)                                      (in relation to Tranche One) the period from the date of this Agreement
to 22 January 2010 (if such date is not a Business Day, the immediately
following Business Day); or


 


(b)                                     (in relation to any other Tranche) the period from the Accession Date in
respect of the first Lender Accession Memorandum relating to such Tranche to the earlier of (i) the date falling 30 days after such Accession Date and
(ii) the date falling 9 Months after the Initial Utilisation Date.


 


“Available
Commitment” means, in respect of any Tranche and any Lender, at any
time and save as otherwise provided in this Agreement, that Lender’s Commitment
for such Tranche minus:


 


(a)                                      the aggregate amount of its participation in any and all outstanding
Loans that have been made under such Tranche (for such purpose taking into
account the principal amount of each such Loan when it is made and disregarding
any subsequent repayment or prepayment of such principal amount); and


 


(b)                                     (in relation to any proposed Utilisation) the amount of its
participation in any Loans (other than the Loan the subject of such proposed
Utilisation) that are due


 


3

















 


to be made under such
Tranche on or before the proposed Utilisation Date.


 


“Available
Facility” means, in relation to any Tranche, the aggregate for the
time being of each Lender’s Available Commitment for such Tranche.


 


“Base Case
Model” means the financial model and business plan relating to the
Group in the agreed form.


 


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


 


(a)                                      the interest which a Finance Party should have received for the period
from the date of receipt or recovery of all or any part of its participation in
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 that Loan
or had that Unpaid Sum so received or recovered been paid on the last day of
that Interest Period;


 


exceeds:


 


(b)                                     the amount which that Finance Party would be able to obtain by placing
an amount equal to the principal amount of that Loan or equal to that Unpaid
Sum so received or recovered by it on deposit with a leading bank in the London
interbank market for a period starting on the Business Day following such
receipt or recovery and ending on the last day of that current Interest Period.


 


“Business Day”
means a day (other than a Saturday or Sunday) on which banks are open for
general business in:


 


(a)                                      (in relation to the determination of any rate of interest or any
Utilisation Request) London;


 


(b)                                     (in relation to a payment in US dollars) New York City; and


 


(c)                                      (for all purposes) Beijing, Hong Kong and Singapore.


 


“Calculation
Period” means each consecutive period of 2 calendar months, provided
that (a) the first Calculation Period shall start on first day of the
calendar month (the “Starting Calendar Month”)
immediately following the calendar month in which the Initial Utilisation Date
falls and ending on the last day of the calendar month immediately following
the Starting Calendar Month and (b) each such subsequent Calculation
Period shall commence on the day immediately following the last day of the
immediately preceding Calculation Period.


 


“Cayman Co Debenture” means the debenture in the agreed form entered into or to be entered into between
Cayman Co and the Security
Agent pursuant to which, among other things, Cayman Co grants Security over its assets  to the Security Agent.


 


“Cayman Co
Entity” means Cayman Co or any wholly-owned Subsidiary (direct or indirect)
of Cayman Co.


 


“Capex
Withdrawal Request” means a withdrawal request in substantially the
form of the “Capex Withdrawal Request” scheduled or annexed to the Account
Control


 


4

















 


Agreement.


 


“Capital
Expenditure” means any expenditure or obligation in respect of
expenditure which in accordance with the Accounting Principles should be
treated as capital expenditure and includes, without limitation, the capital
element of any expenditure or obligation incurred in connection with any
finance or capital lease.


 


“Capital
Leasing Contract” means the capital lease entered into by the
Borrower in respect of certain office equipment with a monthly repayment amount
of RMB2,814 up to December 2012.


 


“Cash”
means, at any time, cash in hand or at bank or financial institution
denominated in US dollars and/or (in the case of Cash of the Borrower only) RMB
and (in each case) credited to an account in the name of a member of the Group
and to which that member of the Group is alone beneficially entitled and for so
long as:


 


(a)                                      that cash is (i) repayable on demand or (ii) on time deposit
and repayable within 3 months of such time;


 


(b)                                     repayment of that cash is not contingent on the prior discharge of any
other indebtedness of any member of the Group or of any other person whatsoever
or on the satisfaction of any other condition (other than lapse of time); and


 


(c)                                      neither such cash nor such account is subject to any Security or
Quasi-Security except for (i) any Transaction Security and/or (ii) any
Security falling within paragraph (b) of Clause 21.3 (Negative pledge).


 


“Charged
Property” means all of the assets of any or all of the Obligors
which from time to time are, or are expressed to be, the subject of the
Transaction Security.


 


“Commitment”
means:


 


(a)                                      in relation to Tranche One and any Lender:


 


(i)                               (in the case of an Original Tranche One Lender) the sum of:


 


(A)       the amount set opposite the name of such Original
Tranche One Lender under the heading “Commitment” in Schedule 1 (The Original Tranche One Lenders);
and


 


(B)         the amount of any other Commitment in respect of
Tranche One transferred to it pursuant to it under this Agreement; or


 


(ii)                            (in the case of any other Lender) the amount of any Commitment in
respect of Tranche One transferred to it under this Agreement,


 


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


 


(b)                                     in relation to any Tranche (other than Tranche One) any Lender:


 


(i)                                  (in the case of an Original Lender with respect to such Tranche) the sum
of:


 


5

















 


(A)       the amount set opposite the name of such Original
Lender under the heading “Commitment” in the schedule to any Lender Accession
Memorandum (for such Tranche) to which such Lender is a party (or, if there is
more than one Lender Accession Memorandum for such Tranche to which such Lender
is a party, the aggregate of the amount set opposite the name of such Lender
under the heading “Commitment” in the schedule to each Lender Accession
Memorandum (for such Tranche) to which such Lender is a party); and


 


(B)         the amount of any other Commitment in respect of such
Tranche transferred to it pursuant to it under this Agreement; or


 


(ii)                               (in the case of any other Lender) the amount of any Commitment in
respect of such Tranche transferred to it under this Agreement,


 


to the extent not cancelled, reduced or
transferred by it under this Agreement (provided that, for the avoidance of
doubt, any Commitment of any Lender referred to in paragraph (b)(i)(A) in
respect of any Tranche (other than Tranche One) shall only be included after
such Lender has become a Party hereto pursuant to the applicable Lender
Accession Memorandum (for such Tranche) referred to in paragraph (b)(i)(A) and
Clause 4.1 (Accession)).


 


“Compliance
Certificate” means a certificate substantially in the form set out
in Schedule 5 (Form of Compliance
Certificate).


 


“Covered Entities” means the Borrower, Parentco, Holdco, Cayman Co, any other member of
the Group, Premium Sino or the Sponsor (each a “Covered
Entity”).


 


“Current LHD Contracts” means:


 


(a)                                      the contract entitled “”
dated 26 October 2008 entered into between the Borrower and ; and


 


(b)                                     the contract entitled “” dated 3 November 2009 entered into between the
Borrower and .


 


“Current MD Contracts”
means:


 


(a)                                      the contract entitled “”
dated 1 January 2006 entered into between the Borrower and  dated September 2009 entered into between
the Borrower and ;


 


6

















 


(b)                                     the contract entitled “”
dated 1 January 2007 entered into between the Borrower and , and
the contract entitled “”
dated 8 February 2007 entered into between the Borrower and ; and


 


(c)                                      the contract entitled “”
dated 17 July 2008 entered into between the Borrower and .


 


“Debt Service
Reserve Account” or “DSRA”
means an RMB account (including any renewal or re-designation thereof) of the
Borrower to be established with China Construction Bank Corporation on or prior
to the delivery of the first Utilisation Request and designated in writing as
the “Debt Service Reserve Account” by the Borrower and the Arranger.


 


“DSRA
Determination Exchange Rate” means, as at any date, the “FX Fwd Ask
Market” rate for “6-month USDCNY NDF rate” as shown on the applicable Bloomberg
“NDF” page as at 11a.m. (Hong Kong time) on such date (or, if such rate is
not or ceases to be shown or cannot be ascertained from such page, or the
Bloomberg service ceases to be available, such other rate of exchange between
US dollars and RMB as selected by the Facility Agent).


 


“Default”
means an Event of Default or any event or circumstance 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.


 


“Dividend
Withdrawal Request” means a withdrawal request in substantially the
form of the “Dividend Withdrawal Request” scheduled or annexed to the Account
Control Agreement.


 


“DSRA Amount”
means, as at any date, the amount that is equal to the sum of the aggregate
interest which would be payable on the Loans (or any part thereof) at any time
during the period of six Months from and including such date, on the
assumptions that:


 


(a)                                      the aggregate principal amount of the Loans outstanding as at such
first-mentioned date includes without limitation any Loan that is to be made on
such date;


 


(b)                                     no repayment of any Loan will be made during such six Month period
except on the respective Repayment Dates (and in the amounts contemplated under
Clause 7.1 (Repayment of Loans));
and


 


(c)                                      the rate of interest applicable to each Loan will at all times during
such period be equal to the then prevailing rate of interest applicable to such
Loan as at such first-mentioned date.


 


7














 


“Entrustment
Creditor” has the meaning given to it in the definition of “Entrustment
Loan”.


 


“Entrustment
Debtor” has the meaning given to it in the definition of “Entrustment
Loan”.


 


“Entrustment
Deposit” has the meaning given to it in the definition of “Entrustment
Loan”.


 


“Entrustment
Loan” means any loan made by any bank or financial institution to
any person (the “Entrustment Debtor”),
where:


 


(a)                                      such loan is made by such bank or financial institution out of amounts
deposited by another person (the “Entrustment
Creditor”) with such bank or financial institution (such amounts so
deposited being the “Entrustment Deposit”);


 


(b)                                     such bank or financial institution is under a binding obligation to pay
any and all receipts of and/or recoveries made by such bank or financial
institution in respect of such loan (whether from the Entrustment Debtor or any
guarantor or credit support provider of the Entrustment Debtor or otherwise) to
the Entrustment Creditor (whether or not after deducting any out-of-pocket costs
and expenses incurred by such bank or financial institution in connection with
such receipts and/or recoveries); and


 


(c)                                      except as referred to in paragraph (b), such bank or financial
institution does not have any obligation to repay or make any interest or other
payment in respect of any such Entrustment Deposit or any part thereof to the
Entrustment Creditor.


 


“Environmental
Claim” means any claim, proceeding or investigation by any person in
respect of any Environmental Law.


 


“Environmental
Law” means any applicable law in any jurisdiction in which any
member of the Group conducts business which relates to the pollution or
protection of the environment or harm to or the protection of human health or
the health of animals or plants.


 


“Environmental
Permits” means any permit, licence, consent, approval and other
authorisation and/or the filing of any notification, report or assessment
required under any Environmental Law for the operation of the business of any
member of the Group conducted on or from the properties owned or used by any
member of the Group.


 


“Equipment Leasing
Contracts” means the two equipment leasing contracts dated
12 July 2007 entered into between the Borrower and  in respect of the sale and leaseback of
certain equipment by the Borrower.


 


“Equity
Interest” means, in relation to any person:


 


(a)                                      any shares of any class or capital stock of or equity interest in such
person or any depositary receipt in respect of any such shares, capital stock
or equity interest;


 


8

















 


(b)                                     any securities convertible or exchangeable (whether at the option of the
holder thereof or otherwise and whether such conversion is conditional or
otherwise) into any such shares, capital stock, equity interest or depositary
receipt, or any depositary receipt in respect of any such securities; or


 


(c)                                      any option, warrant or other right to acquire any such shares, capital
stock, capital interest, securities or depositary receipts referred to in
paragraphs (a) and/or  (b).


 


“Equity
Issuance” means, in relation to any person, any allotment or
issuance of (or the entering into of any agreement to allot or issue) any
Equity Interest of such person, or any grant to any person of any right
(whether conditional or unconditional) to call for or require the allotment or
issuance of any Equity Interest of such person.


 


“Equity
Pledge over Borrower” means the equity pledge in agreed form entered
into or to be entered into between Parentco and the Security Agent pursuant to
which, among other things, Parentco grants Security to the Security Agent over
all of its equity interests in the Borrower.


 


“Event of
Default” means any event or circumstance specified in Clauses 22.1 (Non-payment) to 22.22 (Material adverse change).


 


“Existing LHD
Units” means the 2 LHD Units that are, as at the date of this
Agreement, deployed on the Daqing and Liaoning projects that are the subject of
the Current LHD Contracts.


 


“Existing
Shareholders” means Premium Sino, Wise Worldwide, King Da and
Prosperia (each an “Existing Shareholder”).


 


“Exit Event”
means any of the following:


 


(a)                                      the occurrence of any Qualifying IPO;


 


(b)                                     any Covered Entity shall, in any transaction or series of related
transactions, sell, convey, or otherwise dispose (by lease, licence or otherwise)
of all or a material part of its assets, property or business or merge or
amalgamate with or into or consolidate with any other corporation, limited
liability company or other entity other than:


 


(i)                       a disposal of assets by a Cayman Co Entity to another Cayman Co Entity; or


 


(ii)                    a solvent merger or amalgamation between a Cayman Co Entity with another
Cayman Co Entity (and not involving any person that is not a Cayman Co Entity),
where (if Cayman Co is involved in such merger or amalgamation) Cayman Co is the surviving entity and there are no Equity
Interests in Cayman Co (following such merger or amalgamation) other than Ordinary Shares; or


 


(iii)                 the sale, transfer, conveyance or disposal of 90% of the issued shares
of and equity interests in Holdco by Premium Sino to Cayman Co as an


 


9

















 


integral part of the
Relevant Permitted Reorganisation; or


 


(c)                                      any transaction or series of related transactions shall occur pursuant
to which more than 40% of the shares or Equity Interests in a Covered Entity
(other than the Sponsor) are issued, sold, transferred or conveyed to, or
otherwise disposed of by, any person or person(s), other than:


 


(i)                       any issuance, sale, transfer, conveyance or disposal
of shares or Equity Interests in Cayman Co in favour of Premium Sino; or


 


(ii)                    any issuance, sale, transfer, conveyance or disposal
of shares or Equity Interests in any Cayman Co Entity (other than Cayman Co) in favour of
another Cayman Co Entity.


 


“Facility”
means the term loan facility made or to be made available under this Agreement,
comprising the Tranches.


 


“Facility
Office” means the office or offices notified by a Lender to the
Facility 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(s) through which it will perform its obligations under this
Agreement.


 


“Fee Letter”
means:


 


(a)                                      the letter dated on or about the date of this Agreement between the
Arranger and Premium Sino setting out the arrangement fees payable by Premium
Sino; and


 


(b)                                     the letter dated on or about the date of this Agreement between the
Facility Agent, the Security Agent and the Borrower setting out the agency fees
payable by the Borrower.


 


“Final
Maturity Date” means the date falling 60 Months from the Initial
Utilisation Date.


 


“Finance
Documents” means this Agreement, the Amendment Agreement, the Second Amendment Agreement, the Security Documents, any Fee Letter, any Lender Accession Memorandum
and any other document(s) designated as such by the Facility Agent and the
Borrower (each a “Finance Document”).


 


“Finance
Parties” means the Calculation Agent, the Facility Agent, the
Security Agent, the Arranger and the Lenders (each a “Finance Party”).


 


“Financed LHD Acquisition” means the acquisition by the Borrower of six LHD Units on the terms of
the Financed
LHD Acquisition Agreement.


 


“Financed LHD Acquisition Agreement” means the sale and purchase agreement(s) to be executed prior to the
delivery of the first Utilisation Request relating to the acquisition by the
Borrower of six LHD Units entered or to be entered into between the Borrower
and the
LHD Vendor.


 


“Financed LHD Contract” means any LHD
Contract relating to the use or deployment


 


10

















 


of
any Financed LHD Unit.


 


“Financed LHD Units” means the six LHD Units
(for the avoidance of doubt, not including any of the Upcoming LHD Units) the
acquisition of which are being financed (in whole or in part) by the proceeds
of any Loan.


 


“Financial
Indebtedness” means any indebtedness for or in respect of:


 


(a)                                      monies borrowed;


 


(b)                                     any amount raised by acceptance under any acceptance credit facility or
by any bill discounting or factoring facility or by any dematerialised
equivalent of any of the foregoing;


 


(c)                                      any amount raised pursuant to any note, or 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 the applicable Accounting Principles,
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 Treasury Transaction (and, when calculating the value of that
Treasury Transaction, only the marked to market value shall be taken into
account);


 


(g)                                     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;


 


(h)                                     any amount of any liability under an advance or deferred purchase
agreement if (i) one of the primary reasons behind entering into that agreement
is to raise finance or (ii) that agreement is in respect of the supply of
assets or services and payment is due more than 120 days after the date of
supply;


 


(i)                                         any arrangement pursuant to which an asset sold or otherwise disposed of
by any person may be re-acquired by such person, any Affiliate of such person
or any person acting in accordance with the directions of such person or any
Affiliate of such person;


 


(j)                                         any amount raised by the issue of redeemable shares;


 


(k)                                      any amount raised under any other transaction (including any forward
sale or purchase agreement) which is, or is to be, accounted for as a borrowing
under the applicable Accounting Principles; and/or


 


(l)                                         the amount of any liability in respect of any guarantee or indemnity or
other assurance against financial loss for any of the items referred to in
paragraphs (a) to (k) above.


 


“Financial
Quarter” means the quarterly accounting period of the Group (or any


 


11

















 


member of the Group) ending on 31 March, 30
June, 30 September or 31 December in any year.


 


“Financial
Year” means the annual accounting period of the Group (or any member
of the Group) ending on 30 September in any year.


 


“Government
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 Cayman Co, Holdco, Parentco, the Borrower and their respective Subsidiaries from time
to time.


 


“Group
Structure Chart” means the group structure chart for the Group in
the agreed form as may be updated and delivered to the
Facility Agent pursuant to the terms of the Second Amendment Agreement.


 


“Hedging Agreement” means any master agreement, confirmation, schedule
or other agreement entered into or to be entered into by the Borrower and a
Swap Counterparty for the purpose of hedging the Borrower’s exposure to
fluctuations in interest rates and/or currency exchange rates (including without
limitation any such exposure in connection with the Facility).


 


“Holdco Debenture”
means the debenture in agreed form entered into or to be entered into between
Holdco and the Security Agent pursuant to which, among other things, Holdco
grants Security over its assets (including without limitation all of the shares
in Parentco) to the Security Agent.


 


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


 


“Indebtedness
for Borrowed Money” means any Financial Indebtedness (other than any
Financial Indebtedness falling within paragraph (f) of the definition thereof).


 


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


 


“Initial Budget Period” means the half yearly period starting
with the first day of the calendar month immediately following the calendar month in which the Initial
Utilisation Date falls.


 


“Initial
Utilisation Date” means the date on which the first Loan is made
under this Agreement.


 


“Intellectual
Property” means:


 


(a)                                      any patents, trade marks, 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; and


 


12

















 


(b)                                     the benefit of all applications and rights to use any or all of the
rights, assets and/or items referred to in paragraph (a).


 


“Intercompany Loan Agreement” means the loan
agreement dated 6 May 2009 entered into between Premium Sino as borrower and
Wise Worldwide as lender pursuant to which Premium Sino borrowed HK$45,000,000
from Wise Worldwide.


 


“Interest
Period” means:


 


(a)                                      in relation to a Loan, any period determined in accordance with Clause
10 (Interest Periods); and/or


 


(b)                                     in relation to an Unpaid Sum, any period determined in accordance with
Clause 9.3 (Default interest).


 


“Joint
Venture” means any joint venture entity, whether a company,
unincorporated firm, undertaking, association, joint venture or partnership or
otherwise and whether or not having separate legal identity from the members
thereof.


 


“King Da” means King Da Investment Fund Limited, a BVI Business Company with limited liability incorporated in the
British Virgin Islands.


 


“Lender”
means:


 


(a)                                      any Original Tranche One Lender;


 


(b)                                     any bank, financial institution, trust, fund or other entity which has
become a Party to this Agreement as a “Lender” in accordance with Clause 4.1 (Accession); and/or


 


(c)                                      any bank, financial institution, trust, fund or other entity which has
become a Party in accordance with Clause 23 (Changes
to the Lenders),


 


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


 


“Lender
Accession Memorandum” means a memorandum in substantially the form
set out in Schedule 9 (Form of Lender
Accession Memorandum).


 


“LHD” means
lateral hydraulic drilling, a technology that enhanced production in oil and
coalbed methane wells by penetrating well casing and surrounding earth strata
using high pressure fluid.


 


“LHD Contract” means any contract or
agreement entered into between any member of the Group and any other person for
the provision by a member of the Group of LHD services to such other person.


 


“LHD Contract
Requirements” means, in relation to any LHD Contract:


 


(a)                                      such LHD Contract is entered into by the Borrower with a person that is
not a member of the Group;


 


13

















 


(b)                                     the unit price under such LHD Contract is not less than RMB2,500 (in the
case of any oil well) or RMB900 (in the case of any coalbed methane well);


 


(c)                                      the minimum number of wells covered by such LHD Contract is not less
than 67 wells per annum (in the case of oil wells) or 56 wells per annum (in
the case of coalbed methane wells); and


 


(d)                                     the term of such LHD Contract expires on a date that is not earlier than
the date that is 30 Months after the Initial Utilisation Date.


 


“LHD Exclusivity Agreement”
means the Exclusive Sales Agreement dated 31 August 2009 entered into between
the Borrower and Power Hydraulics in respect of the exclusive use of the LHD
technology by the Borrower in the PRC.


 


“LHD Relevant Time”
means the first date after the date of this Agreement when there are LHD
Contracts (to which the Borrower is a party) relating to at least 10 LHD Units
in aggregate.


 


“LHD Unit” means
a truck mounted system incorporating the LHD technology.


 


“LHD Vendor”
means Dongying Luda Petroleum Equipments, Inc.


 


“LHD Vendor
Joint Account” means the joint account of the Borrower and the LHD
Vendor established for the purpose of the payment of consideration by the
Borrower to the LHD Vendor relating to the purchase of LHD Units (including any
renewal or re-designation thereof).


 


“LIBOR”
means, in relation to any Loan or any Unpaid Sum and any Interest Period
relating thereto:


 


(a)                                      the applicable Screen Rate; or


 


(b)                                     (if no Screen Rate is available for the currency of such Loan or such
Unpaid Sum and such Interest Period) the arithmetic mean of the rates (rounded
upwards to four decimal places) as supplied to the Facility Agent at its
request quoted by the Reference Banks to leading banks in the London interbank
market,


 


as of 11:00 a.m. (London time) on the Quotation
Day for the offering of deposits in the currency of such Loan or such Unpaid
Sum and for a period comparable to that Interest Period.


 


“Listco”
has the meaning given to it in the definition of “Permitted Reorganisation”.


 


“Listing
Rules” means The Rules Governing the Listing of Securities on The
Stock Exchange of Hong Kong Limited.


 


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


 


“London
Business Day” means a day (other than a Saturday or a Sunday) on
which banks are open for general business in London.


 


14

















 


“Majority
Lenders” means:


 


(a)                                      if no Loan is then outstanding, a Lender or Lenders the aggregate of
whose Commitments (for any and all Tranches) is more than 50% of the Total
Commitments (or, if the Total Commitments have been reduced to zero, the
aggregate of whose Commitments (for any and all Tranches) was more than 50% of
the Total Commitments immediately prior to such reduction of the Total
Commitments to zero); or


 


(b)                                     at any other time, a Lender or Lenders the sum of whose participations
in the Loans then outstanding is more than 50% of the aggregate Loans then
outstanding.


 


“Margin”
means, as at any date, the percentage per annum set forth in the table below
beside the period in which such date falls:


 


	
  Period

  	
   

  	
  Margin (% per annum)

  
	
  From (and including) the Initial Utilisation
  Date to and excluding the date falling 12 Months after the Initial Utilisation
  Date

  	
   

  	
  4.50

  
	
   

  	
   

  	
   

  
	
  From (and including) the date falling 12
  Months after the Initial Utilisation Date to and excluding the date falling
  18 Months after the Initial Utilisation date

  	
   

  	
  6.50

  
	
   

  	
   

  	
   

  
	
  From (and including) the date falling 18
  Months after the Initial Utilisation date

  	
   

  	
  8.50

  



 


“Material
Adverse Effect” means a material adverse effect on:


 


(a)                                      the business, conditions (financial or otherwise), assets, performance,
operations or prospects of:


 


(i)                        the
Borrower;


 


(ii)                     the
Group taken as a whole; or


 


(b)                                     the ability of any Obligor to perform its obligations under any or all
of the Transaction Finance Documents; or


 


(c)                                      the legality, validity or enforceability of any or all of the
Transaction Finance Documents or any or all of the rights or remedies of any
Transaction Finance Party under any or all of the Transaction Finance
Documents, or the priority of any Transaction Security.


 


“Material
Contracts” means:


 


(a)                                      the Current LHD Contracts, the Upcoming LHD Contracts, and the Financed
LHD Contracts (including without limitation Replacement LHD Contracts


 


15

















 


relating
to any or all of the foregoing);


 


(b)                                     the Current MD Contracts (including without limitation Replacement MD
Contracts relating to any or all of the foregoing);


 


(c)                                      any other LHD Contract(s);


 


(d)                                     any other MD Contract(s);


 


(e)                                      the LHD Exclusivity Agreement;


 


(f)                                        the MD Supply Contract;


 


(g)                                     the Sky Non-Compete Undertaking;


 


(h)                                     the Sponsor Non-Compete Undertaking;


 


(i)                                         the Equipment Leasing Contracts;


 


(j)                                         the MD Patent Acquisition Agreement;


 


(k)                                      the MD Licensing Agreement;


 


(l)                                         the Power
Hydraulics Supply Contracts;


 


(m)                                   the Upcoming LHD
Acquisition Agreement and the Financed LHD Acquisition Agreement; and


 


(n)                                     any other agreement designated in writing as a “Material Contract” by
the Borrower and the Facility Agent.


 


“Material Sales Contracts”
means:


 


(a)                                 the contracts falling within paragraphs (a) and/or (b) of the definition
of “Material Contracts”; and/or


 


(b)                                any other LHD Contracts relating to any of the Current LHD Units, the
Upcoming LHD Units and/or the Financed LHD Units.


 


“MD”
means molecule deposition, a technology that enhances oil production by
depositing a thin layer onto oil sand’s surface and displacing immobile oil
attached to the sand.


 


“MD Contract” means any contract or
agreement entered into between any member of the Group and any other person for
the provision by a member of the Group of MD services to such other person.


 


“MD Licensing Agreement”
has the meaning given to it in paragraph 6(c) of Schedule 13 (Conditions subsequent).


 


“MD Patent”
means the patent of  with patent no. ZL 99 1
00061.7 registered with SIPO.


 


16

















 


“MD Patent Acquisition
Agreement” has the meaning given to it in paragraph 5(f) of Schedule
2 (Conditions Precedent for initial
Utilisation).


 


“MD Patent Owner”
means Mr. Gao Manglai (), holder of PRC identity card no. 220104196505271615.


 


“MD Supply Contract”
means the supply contract dated November 2005 entered into between the Borrower
and  in respect of the exclusive sale of MD
solutions by  to the Borrower.


 


“MOFCOM”
means the Ministry of Commerce of the PRC including its successors and local
counterparts.


 


“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 in
that next calendar month (in which that period is to end) is not a Business Day,
that period shall end on the next Business Day in that next calendar month if
there is one, or if there is not, on the immediately preceding Business Day in
that next calendar month;


 


(b)                                     if there is no numerically corresponding day in that next calendar month
(in which that period is to end), that period shall end on the last Business
Day in that next calendar month; and


 


(c)                                      if any period begins on the last Business Day of a calendar month, that
period shall end on the last Business Day in the calendar month in which that
period is to end.


 


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


 


“Mortgage
over LHD Units” means the mortgage in agreed form entered into
between or to be entered into between the Borrower and the Security Agent pursuant
to which, among other things, the Borrower grants Security over the Existing
LHD Units, the Financed LHD Units and the Upcoming LHD Units to the Security
Agent.


 


“New Share
Charge over Holdco”
means the
share mortgage in the agreed form entered into or to be entered into between
Cayman Co and the Security Agent pursuant to which, among other things, Cayman
Co grants Security to the Security Agent over the shares in Holdco.


 


“Notice of
Intention to Put” means a notice in substantially the form set out
in Schedule 8 (Form of Notice of Intention
to Put).


 


“Obligors”
means the Borrower, Parentco, Holdco, Cayman Co, the Existing Shareholders and each other party to any
Transaction Document (other than a Secured Party, the AM, the Administration
Agent (as defined in the Security Trust Deed) and the Warrant Calculation Agent
(as defined in the Security Trust Deed)) (each an “Obligor”).


 


17














 


“Offshore
Security Documents” means the Security Documents (other than the
Onshore Security Documents and the Security Trust Deed).


 


“Onshore Controlled Account” means an
account (including any renewal or re-designation thereof) of the Borrower to be
established with China Construction Bank Corporation on or prior to the
delivery of the first Utilisation Request and designated in writing as the “Onshore
Controlled Account” by the Borrower and the Arranger.


 


“Onshore Cash
Collateral Account” means an account (including any renewal or
re-designation thereof) of the Borrower to be established with China
Construction Bank Corporation on or prior to the delivery of the first
Utilisation Request and designated in writing as the “Onshore Cash Collateral
Account” by the Borrower and the Arranger.


 


“Onshore
Project Accounts” means the Onshore RMB Project Account and the
Onshore USD Project Account (each an “Onshore Project Account”).


 


“Onshore RMB Project Account” means an account (including any
renewal or re-designation thereof) of the Borrower to be established with China
Construction Bank Corporation on or prior to the delivery of the first
Utilisation Request and designated in writing as the “Onshore RMB Project
Account” by the Borrower and the Arranger.


 


“Onshore
Security Documents” means any Security Document the grantor of
security under which is the Borrower.


 


“Onshore USD
Project Account” means an account (including any renewal or
re-designation thereof) of the Borrower to be established with China
Construction Bank Corporation on or prior to the delivery of the first
Utilisation Request and designated in writing as the “Onshore USD Project
Account” by the Borrower and the Arranger.


 


“Operating
Expenditure” means any operating expenditure, sales and administrative
expenses, Tax, interest expense (including any applicable Tax gross-up payments
in connection with such interest expense) under the Facility, and any other
amounts approved by the Facility Agent (acting on the instructions of the
Majority Lenders).


 


“Opex
Withdrawal Request” means a withdrawal request in substantially the
form of the “Opex Withdrawal Request” scheduled or annexed to the Account
Control Agreement.


 


“Ordinary
Shares” means ordinary shares in the share capital of Cayman Co.


 


“Original
Financial Statements” means:


 


(a)                                      the audited financial statements of the Borrower for the financial year
ended 30 September 2008; and


 


(b)                                     the financial statements of the Borrower for the financial year ended 30
September 2009.


 


“Original Lender”
means:


 


(a)                                      (in relation to Tranche One) the Original Tranche One Lender; or


 


18

















 


(b)                                     (in relation to any other Tranche) any Lender who has entered into a
Lender Accession Memorandum in respect of such Tranche and become a Party in
accordance with Clause 4.1 (Accession).


 


“Parentco Controlled Account” means an
account (including any renewal or re-designation thereof) of Parentco to be
established with Deutsche Bank AG, Hong Kong Branch on or prior to the delivery
of the first Utilisation Request and designated in writing as the “Parentco
Controlled Account” by Parentco and the Security Agent.


 


“Parentco Debenture”
means the debenture in agreed form entered into or to be entered into between
Parentco and the Security Agent pursuant to which, among other things, Parentco
grants Security over its assets to the Security Agent.


 


“Parentco
Withdrawal Request” means a withdrawal request in substantially the
form of the “Parentco Withdrawal Request” scheduled or annexed to the Parentco
Debenture.


 


“Party”
means a party to this Agreement.


 


“Perfection
Requirements” means the making of the appropriate registrations of,
and the obtaining of any necessary Authorisation and taking of all other
actions in respect of the collateral covered by the Security Documents, as
contemplated by any legal opinion delivered pursuant to Clause 5.1 (Initial conditions precedent), paragraph (b) of Clause 5.2 (Further conditions precedent), Schedule 13 (Conditions subsequent) or Schedule 1 (Conditions Precedent)
to the Second Amendment Agreement.


 


“Permitted
Capex Limit” has the meaning given to it in paragraph 2(g) of
Schedule 6 (Bank Accounts).


 


“Permitted
Equity Injection” has the meaning given to it in paragraph (f)
Clause 21.14 (Restricted payments).


 


“Permitted
Financial Indebtedness” has the meaning given to it in Clause 21.16
(Financial Indebtedness).


 


“Permitted
Loan” has the meaning given to it in paragraph (g) of Clause 21.14 (Restricted payments).


 


“Permitted
Project Capex Limit” has the meaning given to it in paragraph 3(f)
of Schedule 6 (Bank Accounts).


 


“Permitted
Opex Limit” has the meaning given to it in paragraph 2(e) of
Schedule 6 (Bank Accounts).


 


“Permitted Reorganisation”
means a solvent restructuring of the Group (including without limitation
insertion of new holding companies into the Group and/or re-domicile of
existing members of the Group) to facilitate a Qualifying IPO with the prior
written consent of the Facility Agent (acting on the instructions of the
Majority Lenders), provided that pursuant to and following such restructuring:


 


(a)                                      the entity the shares in which are to be listed on any stock exchange
pursuant to such Qualifying IPO is a member of the Group incorporated outside
the PRC


 


19

















 


(“Listco”);


 


(b)                                     Listco does not have any assets other than Equity Interests in other
members of the Group; and


 


(c)                                      the Security Agent (as trustee for the Secured Parties) shall continue
to have the benefit of Transaction Security over (i) (without prejudice to
paragraph (ii) below) 100% of the Equity Interests in each member of the Group
(other than (A) Equity Interests in Listco and (B) Equity Interests in any
member of the Group that is incorporated in the PRC, which Equity Interests are
owned by a member of the Group that is incorporated in the PRC) and (ii) at
least 30% of the aggregate shares and/or equity interests in Listco (on a fully
diluted basis but excluding any shares to be issued by Listco in any share
offering as part of such Qualifying IPO).


 


“Permitted
Restricted Payment” has the meaning given to it in Clause 21.14 (Restricted payments).


 


“Permitted
Security” has the meaning given to it in Clause 21.3 (Negative pledge).


 


“Permitted
Sponsor Subordinated Debt” has the meaning given to it in paragraph
(e) of Clause 21.16 (Financial Indebtedness).


 


“Permitted
Trade Credit” means any trade credit extended by the Borrower to its
customers on normal commercial terms and in the ordinary course of its trading
activities.


 


“Pledge over Deposit
Certificates” means a pledge over deposit certificates relating to
the Onshore Cash Collateral Account (in form and substance satisfactory to the
Facility Agent) entered into or to be entered into between the Borrower and the
Security Agent pursuant to which, among other things, the Borrower grants
Security to the Security Agent over the deposit certificates relating to the
Onshore Cash Collateral Account.


 


“Pledge over
Receivables” means the pledge in agreed form entered or to be
entered into between the Borrower and the Security Agent pursuant to which,
among other things, the Borrower grants Security over its receivables relating
to the Material Sales Contracts to the Security Agent.


 


“Power Hydraulics”
means Power Hydraulics, LLC, a
limited liability company incorporated in Lake Charles, Louisiana, the United
States of America.


 


“Power Hydraulics Supply Contracts”
has the meaning given to it in paragraph 5(n) of Schedule 2 (Conditions Precedent for initial
Utilisation).


 


“PRC”
means the People’s Republic of China (excluding for such purposes Hong Kong
Special Administrative Region, Macau Special Administrative Region and Taiwan).


 


“Premium Sino”
means Premium Sino Finance Limited, a BVI Business Company with limited
liability incorporated in the British Virgin Islands.


 


“Project
Capital Expenditure” means Capital Expenditure and payments under
the


 


20

















 


Financed LHD Acquisition Agreement and/or the Upcoming LHD Acquisition
Agreement.


 


“Project  Capex Withdrawal Request” means a
withdrawal request in substantially the form of the “Project Capex Withdrawal
Request” scheduled or annexed to the Account Control Agreement.


 


“Prosperia” means Prosperia International Limited, a BVI Business Company with limited liability incorporated in the
British Virgin Islands.


 


“Qualifying
IPO” means any initial public offering of shares of Cayman Co or (as a result of a
Permitted Reorganisation) Listco on (i) the Hong Kong Stock Exchange, (ii) New York Stock Exchange or
the NASDAQ Stock Market or (iii) any other internationally recognised stock
exchange acceptable to the Facility Agent (acting on the instructions of the
Majority Lenders); and any reference in this Agreement to the “occurrence of a Qualifying IPO” or other
terms having a similar effect shall mean the commencement of trading of the
shares in the manner set forth above of Cayman Co or, as the case may be, Listco on the relevant stock
exchange.


 


“Quasi-Security”
means, in relation to any person:


 


(a)                                      any arrangement or transaction entered into by such person to sell,
transfer or otherwise dispose of any of its assets on terms whereby they are or
may be leased or licensed to or re-acquired by such person or any Related
Person;


 


(b)                                     any arrangement or transaction entered into by such person to sell,
transfer or otherwise dispose of any of its receivables on recourse terms;


 


(c)                                      entering 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


 


(d)                                     entering into any other preferential arrangement having a similar
effect,


 


in circumstances where such arrangement or
transaction is entered into primarily as a method of raising Financial
Indebtedness or of financing the acquisition of an asset.


 


“Quotation
Day” means, in relation to any period for which an interest rate is
to be determined, two London Business Days before the first day of that period
unless market practice differs in the London interbank market, in which case
the Quotation Day will be determined by the Facility Agent in accordance with
market practice in the London interbank market (and if quotations would
normally be given by leading banks in the London interbank market on more than
one day, the Quotation Day will be the last of those days).


 


“Ratio Periods” means each period of 12
calendar months ending on 31 March and 30 September of each year respectively
(each a “Ratio Period”).


 


“Reference
Banks” means the principal London offices of (a) Deutsche Bank AG,
The Hongkong and Shanghai Banking Corporation Limited and Citibank, N.A. or (b)
such other banks as may be appointed by the Facility Agent after consultation
with the


 


21

















 


Borrower.


 


“Related
Person” means:


 


(a)                                      the Sponsor, any holder or beneficial
owner of any Equity Interest of any Existing Shareholder or any of their respective associates (as defined in
Chapter 1 of the Listing Rules), or any person in which any of the Sponsor, any holder or beneficial owner of Equity Interest of any Existing
Shareholder or any of their respective
associates (as defined in Chapter 1 of the Listing Rules) holds or owns
(directly or indirect) any Equity Interest;


 


(b)                                     any Existing Shareholder, any Affiliate thereof;


 


(c)                                      any holder or beneficial owner of any Equity Interest of any member of
the Group or any Affiliate of any such holder or beneficial owner;


 


(d)                                     any member of the Group; and/or


 


(e)                                      any Joint Venture in which any person referred to in any of paragraphs
(a) to (d) above is a member or is party.


 


“Relevant Permitted
Reorganisation” means the reorganisation of the Group by interposing
Cayman Co between Holdco and the Existing Shareholders, where each of the
Existing Shareholders transfers all of the issued share capital in Holdco and
all rights attaching and accruing thereto on or after the date of this
Agreement to Cayman Co in exchange for the issue by Cayman Co of fully paid and
non-redeemable ordinary shares to the Existing Shareholders,  such that immediately upon
completion of such reorganisation:


 


(a)                                        Cayman Co will legally and beneficially own the entire
issued share capital of Holdco and all rights attaching and accruing thereto on
or after the date of this Agreement; and


 


(b)                                       the entire issued share capital of Cayman Co will be
legally and beneficially owned by Premium Sino as to 90%, Wise Worldwide as to
4.5%, King Da as to 1.5% and Prosperia as to 4%.


 


“Replacement LHD Contract” has the meaning
given to it in paragraph (f)(i) of Clause 21.20 (Material Contracts).


 


“Replacement MD Contract” has the meaning
given to it in paragraph (f)(ii) of Clause 21.20 (Material Contracts).


 


“Restricted
Payment” means:


 


(a)                                      any declaration, payment or making of any dividend or other distribution
(or interest on any unpaid dividend or distribution), whether in cash or in
kind, on or in respect of any Equity Interest of any member of the Group or any
distribution or return of any share premium or other reserve of any member of
the Group;


 


22

















 


(b)                                     any purchase, redemption, reduction, retirement, acquisition,
defeasance, repayment, cancellation or termination of any Equity Interest of
any member of the Group, or any payment (or any payment of interest on any
unpaid sum relating to such payment), whether in cash or in kind (and including
without limitation any payment in any sinking fund or similar deposit) on
account of any of the foregoing, or the entering into of any other arrangement
having a similar effect;


 


(c)                                      the making available of any Financial Indebtedness, directly or
indirectly (including without limitation through any Entrustment Loan or
similar arrangement), to any Related Person (and, for the avoidance of doubt,
the making or procurement by a person of any Entrustment Deposit for an
Entrustment Loan to be made to another person shall be considered to be the
making available of Financial Indebtedness by such first-mentioned person to
such latter-mentioned person), or the acquisition of any Financial Indebtedness
owing from any Related Person (or any interest in any Entrustment Loan owing
from any Related Person);


 


(d)                                     any payment, repayment or prepayment (whether on account of principal,
interest, fees or otherwise) on account of any Financial Indebtedness owed to
any Related Person;


 


(e)                                      any redemption, purchase, acquisition, or defeasance of any Financial
Indebtedness owed to any Related Person;


 


(f)                                        any acquisition (including, without limitation, acquisition by way of
subscription) of any Equity Interest of any Related Person;


 


(g)                                     any payment on account of fees to or to the order of any Related Person;
and/or


 


(h)                                     any other payment (not falling within paragraphs (a) to (g)) to any
Related Person.


 


“SAFE”
means the State Administration of Foreign Exchange of the PRC including its
successors and local counterparts.


 


“SAIC”
means the State Administration for Industry and Commerce of the PRC including
its successors and local counterparts.


 


“Screen Rate”
means, in relation to any Loan or any Unpaid Sum and any Interest Period relating
thereto, the percentage rate per annum equal to the British Bankers’
Association Interest Settlement Rate for the currency of such Loan or such
Unpaid Sum and such Interest Period, as displayed on the appropriate page of
the Reuters screen or, if such page is replaced or such service ceases to be
available, the percentage rate per annum quoted by the Reference Banks for the
currency of such Loan or such Unpaid Sum and such Interest Period.


 


“Second Amendment Agreement”
means the second amendment agreement dated                                      2010 and made between, amongst
others, the Borrower, Deutsche Bank AG, Hong Kong Branch as facility agent and
DB Trustees (Hong Kong)


 


23

















 


Limited as security agent in relation to this Agreement.


 


“Secured
Obligations” means all obligations owing or expressed to be owing to
the Secured Parties or any of them by the Obligors or any of them under or
pursuant to the Transaction Documents or any of them whether present or future,
actual or contingent (and whether incurred by any Obligor alone or jointly, and
whether as principal or surety or in some other capacity).


 


“Secured
Onshore Obligations” means the Secured Obligations other than the
Secured Warrant Obligations.


 


“Secured
Warrant Obligations” means all obligations owing or expressed to be
owing to the Transaction Warrant Holders or any of them by the Obligors or any
of them under or pursuant to the Transaction Warrant Documents or any of them
whether present or future, actual or contingent (and whether incurred by any
Obligor alone or jointly, and whether as principal or surety or in some other
capacity).


 


“Secured
Parties” means the Transaction Finance Parties and the Transaction
Warrant Holders.


 


“Security”
means a mortgage, charge, pledge, lien or other security interest securing any
obligation of any person or any other agreement or arrangement having a similar
effect.


 


“Security
Documents” means:


 


(a)                                      the Share Charge over Cayman Co;


 


(b)                                     Cayman Co Debenture;


 


(c)                                      the Share Charge over Holdco;


 


(d)                                     the New Share Charge over Holdco;


 


(e)                                      the Equity Pledge over Borrower;


 


(f)                                        the Holdco Debenture (incorporating a share charge over all of the
shares in Parentco);


 


(g)                                     the Parentco Debenture;


 


(h)                                     the Pledge over Deposit Certificates;


 


(i)                                         the Account Control Agreement;


 


(j)                                         the Mortgage over LHD Units;


 


(k)                                      the Pledge over Receivables;


 


(l)                                         any supplement entered into or to be entered into pursuant to the Pledge
over Deposit Certificates, Mortgage over LHD Units or the Pledge over
Receivables;


 


(m)                                   any Subordination Deed;


 


(n)                                     the Security Trust Deed; and


 


24

















 


(o)                                     any other document or instrument creating or governing any security for
any or all of the Secured Obligations,


 


(each a “Security
Document”).


 


“Security
Trust Deed” means the security trust deed entered into or to be
entered into between, among others, the Borrower, the Facility Agent and the
Security Agent, as amended by the Amendment to Security Trust Deed.


 


“Share Charge over Cayman
Co” means the share charge in the agreed form entered into or to be
entered into between Premium Sino and the Security Agent pursuant to which,
among other things, Premium Sino grants Security to the Security Agent over
shares in Cayman Co.


 


“Share Charge
over Holdco” means the share mortgage
dated 12 January 2010 entered into between Premium Sino and the Security Agent
pursuant to which, among other things, Premium Sino grants Security to the
Security Agent over shares in Holdco.


 


“SIPO” means the
State Intellectual Property Office of the PRC including its successors and
local counterparts.


 


“Sky Non-Compete
Undertaking” means the undertaking (in form and substance
satisfactory to the Arranger) from Sky China Petroleum Services Ltd. (“Sky”) in favour of the Borrower and the Group that Sky does
not and will not engage in any MD and LHD business whether in or outside the
PRC.


 


“Sponsor” means
Mr. Liu Qingzeng (),
holder of PRC passport number G27332374.


 


“Sponsor
Non-Compete Undertaking” has the meaning given to it in paragraph
5(g) of Schedule 2 (Conditions Precedent for
initial Utilisation), as amended pursuant to a letter from the
Sponsor dated
                                                  
2010.


 


“Subordination
Deed” means a subordination deed in form and substance satisfactory
to the Security Agent.


 


“Subsidiary”
means in relation to any company, corporation or entity, a company, corporation
or entity:


 


(a)                                      which is controlled, directly or indirectly, by the first mentioned company,
corporation or entity;


 


(b)                                     more than half the issued share capital, registered capital or equity
interest of which is beneficially owned, directly or indirectly by the first
mentioned company, corporation or entity; or


 


(c)                                      which is a Subsidiary of another Subsidiary of the first mentioned
company, corporation or entity,


 


and for this purpose, a company, corporation or
entity shall be treated as being controlled by another if that other company,
corporation or entity is able to direct its affairs and/or


 


25

















 


to control the majority of the composition of
its board of directors or equivalent body.


 


“Swap
Counterparty” has the meaning given to it in the Security Trust
Deed.


 


“Tax”
means any tax, levy, impost, duty or other charge or withholding of a similar
nature (including any penalty or interest payable in connection with any
failure to pay or any delay in paying any of the same.


 


“Total
Commitments” means the aggregate of the Commitments (for any and all
Tranches) of the Lenders.


 


“Tranche”
means:


 


(a)                                      Tranche One; or


 


(b)                                     the term loan facility constituted by the Commitments of the Lenders
(and/or the commitments represented thereby) established pursuant to a Lender
Accession Memorandum or a series of Lender Accession Memorandums that is/are
expressed to constitute, or form part of, a “Tranche” in accordance with
Clause  4.1 (Accession).


 


“Tranche One”
means the term loan facility constituted by the Commitments of the Lenders for
Tranche One (and/or the commitments represented thereby).


 


“Transaction
Agents” means the Calculation Agent, the Facility Agent and the
Security Agent (each a “Transaction Agent”).


 


“Transaction
Documents” means the Transaction Finance Documents and the
Transaction Warrant Documents (each a “Transaction
Document”).


 


“Transaction
Expense Withdrawal Request” means a withdrawal request in
substantially the form of the “Transaction Expense Withdrawal Request”
scheduled or annexed to the Account Control Agreement.


 


“Transaction
Finance Document Withdrawal Request” means a withdrawal request in
substantially the form of the “Transaction Finance Document Withdrawal Request”
scheduled or annexed to the Account Control Agreement.


 


“Transaction
Finance Documents” means the Finance Documents and the Hedging
Agreements (each a “Transaction Finance
Document”).


 


“Transaction
Finance Parties” means the Lenders, each Swap Counterparty, the
Arranger, the Calculation Agent, the Facility Agent and the Security Agent
(each a “Transaction Finance Party”).


 


“Transaction
Security” means the Security created or expressed to be created in
favour of any or all of the Secured Parties pursuant to or under any or all of
the Security Documents.


 


“Transaction
Security Proceeds” means, in relation to any Security Document, any
amounts and/or proceeds received or recovered pursuant to any enforcement of
any Transaction Security under such Security Document and/or the exercise or
enforcement


 


26

















 


of any rights or remedies under or in respect
of such Security Document and/or otherwise pursuant to the terms of such
Security Document.


 


“Transaction
Warrant” has the meaning given to it in the Security Trust Deed.


 


“Transaction
Warrant Documents” has the meaning given to it in the Security Trust
Deed.


 


“Transaction
Warrant Holder” has the meaning given to it in the Security Trust
Deed.


 


“Transfer
Certificate” means a certificate substantially in the form set out
in Schedule 4 (Form of Transfer Certificate)
or any other form agreed between the Facility Agent and the Borrower.


 


“Transfer
Date” means, in relation to a transfer by a Lender of any or all of
its rights and obligations under this Agreement, the later of:


 


(a)                                      the proposed Transfer Date specified in the Transfer Certificate
relating to such transfer; and


 


(b)                                     the date on which the Facility Agent executes the Transfer Certificate
relating to such transfer.


 


“Treasury
Transaction” means any derivative transaction entered into in
connection with protection against or to benefit from fluctuation in any rate,
index, price or other benchmark.


 


“Unpaid Sum”
means any sum due and payable but unpaid by any Obligor under any or all of the
Finance Documents.


 


“Upcoming LHD Acquisition” means the acquisition by the Borrower of two Upcoming LHD Units.


 


“Upcoming LHD Acquisition Agreement” means the sale and purchase agreement dated 2 June 2008 relating to
the acquisition by the Borrower of two LHD
Units entered or to be entered into between the Borrower and LHD Vendor.


 


“Upcoming LHD Contracts” has the meaning
given to it in paragraph 5(d) of Schedule 2 (Conditions
Precedent for initial Utilisation).


 


“Upcoming LHD Units” has the meaning given to it in paragraph
5(d) of Schedule 2 (Conditions Precedent for
initial Utilisation).


 


“USD Account
Withdrawal Request” means a withdrawal request in substantially the
form of the “USD Account Withdrawal Request” scheduled or annexed to the
Account Control Agreement.


 


“Utilisation”
means a utilisation of any Tranche.


 


“Utilisation
Date” means the date of a Utilisation, being the date on which a
Loan (the subject of such Utilisation) is made or to be made.


 


27














 


“Utilisation
Request” means a notice substantially in the form set out in
Schedule 3 (Form of Utilisation Request).


 


“Wise Worldwide”
means Wise Worldwide Limited, a BVI Business Company with limited liability
incorporated in the British Virgin Islands.


 


1.2         Construction


 


(a)             Unless
a contrary indication appears any reference in this Agreement to:


 


(i)        the Calculation Agent,  the Facility
Agent, the Security Agent,
the Arranger, any Finance Party, any Transaction Finance Party, any Secured Party, any Lender,
any Transaction Warrant Holder,
any Swap Counterparty or any Party shall be construed so as to include
its successors in title, permitted assigns and permitted transferees;


 


(ii)       “acting in concert” has the meaning given to
it in The Code on Takeovers and Mergers and Share Repurchases issued by the
Hong Kong Securities and Futures Commission;


 


(iii)      a document in “agreed form” is a document which is in the
form agreed in writing by or on behalf of the Borrower or any Obligor and
any Transaction Agent;


 


(iv)      “assets” includes present and future
properties, revenues and rights of every description;


 


(v)       “disposal” includes any sale, lease,
transfer, conveyance, assignment and other disposal of any asset or any
interest therein (including, without limitation, any other transaction or
arrangement pursuant to which the economic benefit of or beneficial interest in
such asset is lost or diluted) and “dispose” shall be construed accordingly;


 


(vi)      “guarantee” includes any guarantee, letter
of credit, bond, indemnity or similar assurance against loss, or any
obligation, direct or indirect, actual or contingent, to purchase or assume any
indebtedness of any person or to make an investment in or loan to any person or
to purchase assets of any person where, in each case, such obligation is
assumed in order to maintain or assist the ability of such person to meet its
indebtedness (and “guarantor”
shall be construed accordingly);


 


(vii)     a Finance Document, a Transaction Finance Document, a Transaction Document, a Security Document or any other agreement or
instrument is a reference to that Finance Document, Transaction Finance
Document, Transaction Document, Security Document or other agreement or
instrument as amended or novated from time to time;


 


(viii)    “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;


 


28

















 


(ix)      “management control” in relation to a company,
corporation or entity means the power (whether by way of ownership of shares,
proxy, contract, agency or otherwise) to:


 


(A)  cast, or control the casting
of, more than one-half of the maximum number of votes that might be cast at a
general meeting (or equivalent decision making person) of such company,
corporation or entity; and


 


(B)   appoint or remove at least a majority of the directors
or other equivalent officers of such company, corporation or entity (which
majority has right to exercise more than half of the voting rights capable of
being exercised at the board of directors or equivalent body of such company,
corporation or entity); and


 


(C)   give directions with respect to the operating and
financial policies of such company, corporation or entity with which the
directors or other equivalent officers of such company, corporation or entity
are obliged to comply;


 


(x)       a “person” includes any person, firm, company,
corporation, government, state or agency of a state or any association, trust
or partnership (whether or not having separate legal personality) of two or
more of the foregoing;


 


(xi)      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;


 


(xii)     “shares” or “share capital” of the Borrower includes a reference to
registered capital of the Borrower;


 


(xiii)    a provision of law is
a reference to that provision as amended or re-enacted; and


 


(xiv)    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 (such
waiver shall not be unreasonably withheld or delayed if the applicable Event of
Default has been remedied).


 


(e)             Each
Tranche established in accordance with Clause 4.1 (Accession) shall be numbered in accordance with the
following:


 


29

















 


(i)        the first Tranche
that is established in accordance with Clause 4.1 (Accession) shall be “Tranche Two”; and


 


(ii)       the second Tranche
that is established in accordance with Clause 4.1 (Accession) shall be “Tranche Three”,


 


and so on and so
forth (and the “Tranche Number” of
such Tranche shall be one (in the case of Tranche One), two (in the case of
Tranche Two), three (in the case of Tranche Three) and so on and so forth).


 


(f)             For
the avoidance of doubt, any reference in this Agreement (but not any other
Finance Document) to any “Obligor(s) party
hereto” shall not include Wise Worldwide.


 


(g)            A
reference to the date of this Agreement is a reference to
                                
notwithstanding any amendment or restatement of this Agreement.


 


1.3         Currency
symbols and definitions


 


“$”,
“US$”, “US dollar”, “US dollars”,
“dollar” and “dollars” denote lawful currency of the
United States of America.  “HK$” denotes lawful currency of Hong Kong. “RMB” denotes lawful currency of the PRC.


 


30

















 


SECTION 2


 


THE
FACILITY


 


2.           THE
FACILITY


 


2.1         The
Facility


 


Subject to the terms of this Agreement, the
Lenders agree to make available to the Borrower a US dollar term loan facility
in an aggregate amount of up to the Total Commitments.


 


2.2         Finance
Parties’ rights and obligations


 


(a)             The
obligations of each Finance Party under the Finance Documents are several.  Failure by a Finance Party to perform its
obligations under any or all of the Finance Documents does not affect the
obligations of any other Party under the Finance Documents.  No Finance Party is responsible for the
obligations of any other Finance Party under any or all of the Finance
Documents.


 


(b)             The
rights of each Finance Party under or in connection with the Finance Documents
are separate and independent rights and any debt arising under any or all of
the Finance Documents to a Finance Party from any Obligor party hereto shall be
a separate and independent debt.


 


(c)             A
Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce its rights under the Finance Documents.


 


3.           PURPOSE


 


3.1         Purpose


 


The
Borrower shall apply all amounts borrowed by it under the Facility towards:


 


(a)             Capital
Expenditure for the Financed LHD Acquisition and the Upcoming LHD Acquisition;


 


(b)             general
working capital of the Borrower; and


 


(c)             (in
the case of amounts borrowed pursuant to the first Loan) funding of the DSRA
Amount in the Onshore USD Project Account and payment of expenses incurred in
favour of the Finance Parties in connection with the Facility.


 


3.2         Monitoring


 


Without prejudice to Clause 21.24 (Bank accounts), no Finance Party is bound
to monitor or verify the application of any amount borrowed pursuant to this
Agreement.


 


4.           ACCESSION
OF LENDERS


 


4.1         Accession


 


(a)             Any
bank, financial institution, trust, fund or other entity (each an “Acceding


 


31

















 


Lender”)
may become a Party hereto as a “Lender” in accordance with this Clause 4.1 by
delivering to the Facility Agent and the Security Agent a Lender Accession
Memorandum duly executed by such Acceding Lender and the Arranger provided
that:


 


(i)           the
Arranger shall provide notice of the intention to enter into such Lender
Accession Memorandum to the Facility Agent at least three Business Days prior
to the proposed date of delivery of such Lender Accession Memorandum to the
Facility Agent;


 


(ii)          on
or prior to the delivery of such Lender Accession Memorandum to the Facility
Agent, the Facility Agent has notified the Arranger that it is satisfied that
it has complied with all necessary “know your customer” or other similar checks
under all applicable laws and regulations in relation to such Acceding Lender;


 


(iii)         such
Lender Accession Memorandum states that such Lender Accession Memorandum
relates to a “Tranche” (and the Tranche Number of such Tranche is specified in
such Lender Accession Memorandum);


 


(iv)         once
any Loan has been requested or made under any Tranche, no further Lender
Accession Memorandum in respect of such Tranche may be delivered (and any
further Lender Accession Memorandum delivered must relate to another Tranche);


 


(v)          the
Commitment of each such Acceding Lender in respect of such Tranche (as referred
to in paragraph (a)(iii)) is specified in such Lender Accession Memorandum and
is denominated in US dollars;


 


(vi)         the
aggregate Commitments of each such Acceding Lender in respect of such Tranche
so specified in such Lender Accession Memorandum, when aggregated with the (A) the
aggregate Commitments of the Lenders in respect of Tranche One (as at the date
of this Agreement and without giving effect to any subsequent reduction of any
such Commitment) and (B) the aggregate Commitments of the Lenders in
respect of each other Tranche (taking, in each case, the amount of each such
Commitment as specified in any applicable Lender Accession Memorandum relating
to such other Tranche, without giving effect to any subsequent reduction of any
such Commitment), does not exceed US$65,000,000;


 


(vii)        no Lender Accession
Memorandum in respect of any Tranche may be delivered unless a Loan has been
made under each Tranche (the Tranche Number of which is lower than that of such
first-mentioned Tranche); and


 


(viii)       no Lender Accession
Memorandum may be delivered at any time on or after the date falling 2 Business Days prior to
the date falling 9 Months after the
date of this Agreement.


 


32

















 


(b)             The
Facility Agent shall (and is irrevocably authorised by the Parties to), as soon
as reasonably practicable after receipt by it of a duly completed Lender
Accession Memorandum with respect to a Tranche (in triplicate) appearing on its
face to comply with the terms of this Agreement and delivered in accordance
with the terms of this Agreement, execute that Lender Accession Memorandum, and
with effect from the Accession Date with respect to such Lender Accession
Memorandum, each Acceding Lender party to such Lender Accession Memorandum
shall become party hereto as a “Lender” with a Commitment for such Tranche as
so specified in such Lender Accession Memorandum (in addition to any other
Commitment for any Tranche that it may already have prior to such Accession
Date) and assume all rights and obligations expressed to be assumed by it under
this Agreement.


 


(c)             The
Arranger shall not have any obligation to procure that any person becomes a
Party hereto as a Lender whether in accordance with this Clause 4.1 or
otherwise.


 


4.2         Notification
and Consent


 


(a)             The
Facility Agent shall as soon as practicable after its execution of any Lender
Accession Memorandum in accordance with paragraph (b) of Clause 4.1 (Accession), provide a copy of such Lender
Accession Memorandum to the Borrower.


 


(b)             Each
of the Parties consents to each such Acceding Lender becoming a Party in
accordance with Clause 4.1 (Accession).


 


4.3         Accession
fee


 


Unless the Facility Agent agrees otherwise,
each Acceding Lender shall, on the date on which the applicable Lender
Accession Memorandum (to which it is a party) is delivered to the Facility
Agent, pay to the Facility Agent (for its own account) a fee of US$1,500.


 


5.           CONDITIONS
OF UTILISATION


 


5.1         Initial
conditions precedent


 


The Borrower may not deliver any Utilisation
Request unless the Facility Agent (or, in the case of any document or evidence
set out in paragraph 5 (Business)
of Schedule 2 (Conditions Precedent for
initial Utilisation), the Arranger) has received all of the
documents and other evidence listed in Schedule 2 (Conditions Precedent for initial Utilisation) in form and
substance satisfactory to the Facility Agent (or the Arranger, as the case may
be) unless the Facility Agent (or the Arranger, as the case may be) has waived
in writing delivery of any of such documents or evidence. The Facility Agent
(or the Arranger, as the case may be) shall notify the Borrower and the Lenders
promptly upon being so satisfied.


 


5.2         Further
conditions precedent


 


The Lenders will only be obliged to comply with
Clause 6.4 (Lenders’ participation)
in relation to any Loan if:


 


33

















 


(a)             on
the date of the Utilisation Request (relating to such Loan) and on the proposed
Utilisation Date (for such Loan):


 


(i)           no
Default is continuing or would result from such proposed Loan;


 


(ii)          the
representations and/or warranties to be repeated by any or all of the Obligors
under any or all of the Finance Documents upon the date of such Utilisation
Request or such Utilisation Date are true in all material respects (whether
before or after giving effect to the proposed Loan); and


 


(iii)         no
Exit Event has occurred; and


 


(b)             in
the case of any Loan under any Tranche (other than Tranche One):


 


(i)           the Borrower shall have, on or prior to the delivery
of the Utilisation Request for such Loan, delivered to the Facility Agent all
of the documents and evidence set out in Schedule 12 (Conditions Precedent for subsequent Tranches);


 


(ii)          in
respect of such Tranche (each in form and substance satisfactory to the
Facility Agent);


 


(iii)         the
Arranger shall have confirmed to the Facility Agent in writing that it consents
to the making of such Loan (provided that it is acknowledged that the Arranger
shall be entitled to grant or withhold such consent at its discretion); and


 


(iv)        the Facility Agent
(acting on the instructions of the Majority Lenders) and the Borrower shall
have agreed in writing amendments to the provisions of Clause 20.2 (Financial condition) to reflect the making
of such Loan under such Tranche (and such amendments are expressly stated to
reflect the making of such Loan under such Tranche).


 


34

















 


SECTION 3


UTILISATION


 


6.           UTILISATION


 


6.1         Delivery
of a Utilisation Request


 


The Borrower may utilise the Facility by
delivery to the Facility Agent of a duly completed Utilisation Request not
later than 11:00 a.m. (Hong Kong time) on the date falling four Business
Days (or, only in the case of the first Utilisation, two Business Days) prior
to the proposed Utilisation Date.


 


6.2         Completion
of a Utilisation Request


 


(a)             Each
Utilisation Request is irrevocable and will not be regarded as having been duly
completed unless:


 


(i)           it
identifies the Tranche to be utilised;


 


(ii)          the
proposed Utilisation Date is a Business Day within the Availability Period for
such Tranche;


 


(iii)         the
currency and amount of the proposed Loan under such Tranche (the subject of the
Utilisation Request) comply with Clause 6.3 (Currency
and amount);


 


(iv)        the proposed Interest
Period complies with Clause 10 (Interest
Periods); and


 


(v)         the
account to which the proceeds of a proposed Loan should be credited (as
specified in any Utilisation Request) is the Onshore USD Project Account.


 


(b)             Only
one Loan may be requested in each Utilisation Request.  Only one Loan may be requested or made under
each Tranche.


 


6.3         Currency
and amount


 


In respect of each Utilisation Request:


 


(a)             the
currency for the proposed Loan specified in such Utilisation Request must be US
dollars; and


 


(b)             the
amount of the proposed Loan under any Tranche must be an amount which is not
more than the Available Facility for such Tranche and which is:


 


(i)           (in
the case of Tranche One) equal to the Available Facility for Tranche One; or


 


(ii)          (in
the case of any other Tranche) equal to the Available Facility for such
Tranche.


 


35

















 


6.4         Lenders’
participation


 


(a)             If
the conditions set out in this Agreement have been met, each Lender shall make
its participation in each Loan available by the Utilisation Date for such Loan
through its Facility Office.


 


(b)             The
amount of each Lender’s participation in each Loan under any Tranche will be
equal to the proportion of such Loan borne by such Lender’s Available
Commitment for such Tranche to the Available Facility for such Tranche
immediately prior to the making of such Loan.


 


(c)             The
Facility Agent shall notify each Lender of the amount of such Loan and the
amount of its participation in that Loan, in each case not later than 2:00 p.m.
(Hong Kong time) on the date falling three Business Days prior to the
Utilisation Date for such Loan.


 


(d)             Upon
the earlier of the making of any Loan under any Tranche or the expiry of the
Availability Period relating to such Tranche, the Available Commitment of each
Lender for such Tranche shall be immediately reduced to zero.


 


36

















 


SECTION 4


REPAYMENT,
PREPAYMENT AND CANCELLATION


 


7.           REPAYMENT


 


7.1         Repayment
of Loans


 


The Borrower shall repay the Loans made to it in full on the Final
Maturity Date.


 


7.2         No
re-borrowing


 


The Borrower may not reborrow any part of the
Facility which is repaid.


 


8.           PREPAYMENT
AND CANCELLATION


 


8.1         Illegality


 


If, at any time, it is or will become unlawful
in any applicable jurisdiction for a Lender to perform any of its obligations
as contemplated by this Agreement or to fund or maintain its participation in
any Loan or any part thereof:


 


(a)             that
Lender shall promptly notify the Facility Agent upon becoming aware of that
event and the Facility Agent shall promptly notify the Borrower upon the
receipt of such notification from that Lender;


 


(b)             upon
the Facility Agent notifying the Borrower, the Commitment of that Lender for
each Tranche will be immediately cancelled and reduced to zero; and


 


(c)             the
Borrower shall repay that Lender’s participation in each Loan on the last day
of the Interest Period for such Loan occurring after the Facility Agent has
notified the Borrower or, if earlier, the date specified by that Lender in the
notice delivered to the Facility Agent (being no earlier than the last day of
the applicable grace period permitted by law).


 


8.2         Lenders’
Put Option


 


(a)             In
this Clause 8.2:


 


“Put Option
Date” means the date falling 30 Months after the Initial Utilisation
Date.


 


(b)             Each
Lender may, if it gives the Facility Agent a Notice of Intention to Put
(executed by such Lender) no later than 15 Business Days prior to the Put
Option Date, require that all (but not part) of its participation in each of
the Loans be repaid by the Borrower on the Put Option Date.


 


(c)             On
the Put Option Date, the Borrower shall repay to each Lender who has given a
Notice of Intention to Put in accordance with paragraph (b) (or deemed to
have given a Notice of Intention to Put in accordance with paragraph (f)) all
of such Lender’s participation in each of the Loans together with accrued
interest thereon and any Break Costs relating thereto.


 


(d)             Any
Notice of Intention to Put given or deemed to be given by a Lender under


 


37














 


this Clause 8.2 shall be irrevocable. Promptly upon receipt of any
Notice of Intention to Put from any Lender, the Facility Agent shall forward a
copy of that notice to the Borrower.


 


(e)                                       Subject to paragraph (f):


 


(i)                                each Lender shall have an independent right to give a Notice of
Intention to Put in accordance with paragraph (b);


 


(ii)                             the exercise or non-exercise of such right by any Lender shall not
affect the right of any other Lender to give or refrain from giving any Notice
of Intention to Put under this Clause; and


 


(iii)                          if a Lender shall not have delivered (or deemed pursuant to paragraph (f) 
to have given) a Notice of Intention to Put to the Facility Agent on or prior
to the date falling 15 Business Days prior to the Put Option Date, such Lender
shall be considered not to have exercised its rights under this Clause 8.2 to
require its participation in the Loans to be repaid on the Put Option Date
under this Clause 8.2.


 


(f)                                         If the aggregate
portion of the Loans owed to Lender(s) who have given any Notice of
Intention to Put in accordance with paragraph (b) is not less than 80% of the aggregate Loans outstanding, then
each Lender who has not given a Notice of Intention to Put shall be deemed to
have give a Notice of Intention to Put (on the date falling 15 Business Days
prior to the Put Option Date) requiring its participation in each Loan to be
repaid on the Put Option Date.


 


8.3                           Mandatory
prepayment upon Exit Event


 


Upon
the occurrence of any Exit Event:


 


(a)                                       the Borrower shall (on the date of occurrence of such Exit Event) prepay
all of the Loans in full together with accrued interest thereon and any Break
Costs relating thereto; and


 


(b)                                      no further Lender Accession Memorandum may be delivered, and the
Available Commitment of each Lender in respect of each Facility shall be
immediately reduced to zero.


 


The
Borrower shall give no less than 21 days’ prior written notice of such Exit
Event to the Facility Agent, provided that failure to give such notice shall
not prejudice the Borrower’s obligations in respect of such prepayment in
accordance with the foregoing provisions.


 


8.4                           Mandatory
prepayment upon Equity Issuance


 


(a)                                       For the purposes of this Clause:


 


“Relevant
Equity Issuance” means any Equity Issuance by any member of the
Group (other than (i) any Equity Issuance constituting an Exit Event; (ii) any Equity
Issuance by a member of the Group in favour of another member of the 


 


38

















 


Group); and (iii) any
Equity Issuance by Cayman Co in favour of the Existing Shareholders as an
integral part of the Relevant Permitted Reorganisation.


 


“Net Equity Issuance
Proceeds” means, in respect of any Relevant Equity Issuance, the
proceeds and/or consideration received by or paid to the order of any member of
the Group in respect of such Relevant Equity Issuance, after deducting (without
duplication) reasonable expenses and/or Taxes (in the case of Taxes, as
reasonably determined by the member of the Group making such Relevant Equity
Issuance, on the basis of existing rates and taking account of any available
credit, deduction or allowance) incurred by that member of the Group (in favour
of persons who are not members of the Group or Related Persons) with respect to
such Relevant Equity Issuance.


 


(b)                                      To the extent that any Net Equity Issuance Proceeds are received by (or
paid to the order of) any member of the Group in respect of any Relevant Equity
Issuance, the Borrower shall procure that an amount equal to such Net Equity
Issuance Proceeds shall (or, if such amount is not in US dollars, an amount
that is the equivalent in US dollars of such first-mentioned amount) be applied
towards prepayment of the Loans (and payment of accrued interest on the amount
so prepaid and payment of any Break Costs relating thereto) rateably
immediately upon such receipt by (or payment to the order of) any member of the
Group of such Net Equity Issuance Proceeds.


 


(c)                                       The Borrower shall:


 


(i)                                give the Facility Agent not less than 15 Business Days’ prior notice of
any Relevant Equity Issuance and any prepayment under this Clause 8.4 (provided
that any failure to give such notice shall not prejudice the Borrower’s
obligations to make such prepayment in accordance with the foregoing provisions
of this Clause 8.4); and


 


(ii)                             provide to the Facility Agent (no later than the date of any prepayment
under this Clause 8.4 on account of any Relevant Equity Issuance) the Borrower’s
calculation of the Net Equity Issuance Proceeds in respect of such Relevant
Equity Issuance, including reasonable particulars and supporting evidence of
any amount deducted in the calculation of such Net Equity Issuance Proceeds
(including any expenses and Taxes).


 


8.5                           Voluntary
prepayment of Loans


 


(a)                                       The Borrower may, if it gives the Facility Agent not less than 30 days’
(or such shorter period as the Majority Lenders may agree) prior written
notice, prepay on the last day of the Interest Period applicable thereto the
whole or any part of any Loan.


 


(b)                                      A Loan may only be prepaid (in whole or in part) after the later of (i) the
date on which the Availability Period for each Tranche has expired (or, if
earlier, the date on which the Available Facility for each Tranche is zero) and
(ii) the date on which no further Lender Accession Memorandum may be
delivered in 


 


39

















 


accordance with Clause 4.1 (Accession).


 


(c)                                       A Loan may only be prepaid if:


 


(i)                                in the case where any Loan is so prepaid in part, in aggregate amount of
Loans so prepaid is a minimum amount of US$10,000,000 and an integral multiple
of US$5,000,000; and


 


(ii)                             (if any Lender Accession Memorandum with respect to any Tranche shall
have been delivered to the Facility Agent) the proportion borne by (1) the
aggregate amount prepaid on the Loan under any Tranche pursuant to such
prepayment to (2) the aggregate amount of the Loan under such Tranche
(immediately prior to such prepayment) is equal to the proportion borne by (A) the
aggregate amount prepaid on the Loan under each other Tranche pursuant to such
prepayment to (B) the aggregate amount of the Loan under such other
Tranche (immediately prior to such prepayment).


 


(d)                                      The Borrower may, in the event of any voluntary prepayment under this
Clause 8.5, request the Security Agent to authorise a withdrawal from the Onshore
Cash Collateral Account in accordance with paragraph 4(c) of Schedule 6 (Bank Accounts) for application towards such prepayment.


 


8.6                           Right
of replacement of a single Lender


 


(a)                                       If:


 


(i)                                any sum payable to any Lender by the Borrower is required to be increased
under paragraph (c) of Clause 13.2 (Tax
gross-up); or


 


(ii)                             any Lender claims indemnification from the Borrower under Clause 13.3 (Tax indemnity) or Clause 14 (Increased Costs),


 


the Borrower may, whilst the circumstance
giving rise to the requirement for such increase or indemnification continues,
give the Facility Agent notice of cancellation of the Commitment of that Lender
for each Tranche and its intention to procure the prepayment of that Lender’s
participation in the Loans (except that the Borrower may not give such notice
with respect to any Original Lender (for any Tranche) by reason of any
circumstances falling within paragraph (a)(i), if such circumstances are
subsisting (or are a continuation of circumstances subsisting) as at the date on
which such Original Lender became party to this Agreement).


 


(b)                                      On receipt of a notice referred to in paragraph (a) above, the
Commitment of that Lender for each Tranche shall immediately be reduced to
zero.


 


(c)                                       On the last day of each Interest Period relating to a Loan which ends
after the Borrower has given notice under paragraph (a) above (or, if
earlier, the date specified by the Borrower in that notice), the Borrower shall
repay that Lender’s participation in the Loan to which such Interest Period relates.


 


40

















 


8.7                           Restrictions


 


(a)                                       Any notice of cancellation or prepayment given by any Party under this
Clause 8 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 may not reborrow any part of the Facility which is prepaid.


 


(d)                                      The Borrower shall not repay or prepay all or any part of the Loans or
cancel all or any part of the Commitments or Available Commitments of the
Lenders (for any or all of the Tranches) except at the times and in the manner
expressly provided for in this Agreement.


 


(e)                                       No amount of the Total Commitments or any Commitment or Available
Commitment (in respect of any Tranche) of any Lender cancelled or reduced under
this Agreement may be subsequently reinstated.


 


(f)                                         If the Facility Agent receives a notice under this Clause 8 it shall
promptly forward a copy of that notice to either the Borrower or the affected
Lender, as appropriate.


 


41

















 


SECTION 5


COSTS OF
UTILISATION


 


9.                                 INTEREST


 


9.1                           Calculation
of interest


 


The rate of interest payable on each Loan at
any time during an Interest Period relating thereto is the percentage rate per
annum which is the aggregate of:


 


(a)                                       the Margin applicable to such Loan as at such time; and


 


(b)                                      LIBOR for such Loan and such Interest Period.


 


9.2                           Payment
of interest


 


On the last day of each Interest Period
relating to a Loan, the Borrower shall pay accrued interest on such Loan.


 


9.3                           Default
interest


 


(a)                                       If an Obligor party hereto fails to pay any amount payable by it under a
Finance Document on its due date, interest shall accrue on such overdue amount
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. per annum higher than the rate which would have been payable if such
overdue amount had, during the period of non-payment, constituted a Loan in the
currency of such overdue amount for successive Interest Periods, each of a
duration selected by the Facility Agent (acting reasonably).  Any interest accruing under this Clause 9.3
on any overdue amount owing by an Obligor party hereto shall be immediately payable
by that Obligor on demand by the Facility Agent.


 


(b)                                      If any overdue amount under any Finance Document consists of all or part
of a Loan which became due on a day which was not the last day of an Interest
Period relating to a Loan:


 


(i)                                the first Interest Period for that overdue amount shall have a duration
equal to the unexpired portion of the current Interest Period relating to that
Loan; and


 


(ii)                             the rate of interest applying to that overdue amount during that first
Interest Period shall be two per cent. per annum higher than the rate which
would have applied if that overdue amount had not become due.


 


(c)                                       Default interest (if unpaid) arising on an overdue amount under any
Finance Document will be compounded with that overdue amount at the end of each
Interest Period applicable to that overdue amount but will remain immediately
due and payable.


 


9.4                           Notification
of rates of interest and DSRA Amount


 


(a)                                       The Facility Agent shall promptly notify the relevant Finance Parties
and the 


 


42

















 


Borrower of the determination of a rate of interest under this
Agreement.


 


(b)                                      Upon the determination of a rate of interest under this Agreement, the
Facility Agent shall also promptly notify the AM and the Borrower of the DSRA
Amount and the RMB equivalent thereof (calculated using the DSRA Determination
Exchange Rate as at the date of determination of such rate of interest).


 


(c)                                       Without prejudice to paragraph (b), the Facility Agent shall have the
right (but not the obligation, unless otherwise instructed by the Majority
Lenders) to notify the AM and the Borrower from time to time of any change in
the RMB equivalent of the DSRA Amount (calculating using the DSRA Determination
Exchange Rate as at the date of such notification (or any date that is
reasonably close to the date of such notification as selected by the Facility
Agent)).


 


(d)                                      Any such notification to be given by the Facility Agent to the AM under
paragraph (b) or (c) shall be given through the Security Agent.


 


(e)                                       Without prejudice to Clause 21.23 (DSRA), at the
request of the Borrower, the Facility Agent shall promptly notify the Borrower
of the then applicable DSRA Amount and the RMB equivalent thereof (using the
DSRA Determination Exchange Rate as at the latest date of determination by the
Facility Agent under paragraph (b) or (c) above).


 


10.                           INTEREST
PERIODS


 


10.1                     Selection
of Interest Periods


 


(a)                                       Subject to the provisions of this Agreement, each Interest Period
relating to any Loan shall be six Months, provided that if as at the date of
the making of any Loan any other Loan is outstanding, the first Interest Period
relating to such first mentioned Loan shall end on the last day of the then
current Interest Period of such other Loan.


 


(b)                                      No Interest Period for any Loan shall extend beyond the Final Maturity
Date.


 


(c)                                       Each Interest Period for a Loan shall start on the Utilisation Date for
such Loan or (if already made) on the last day of the preceding Interest Period
relating to such Loan.


 


10.2                     Non-Business
Days


 


If an Interest Period would otherwise end on a
day which is not a Business Day, that Interest Period will instead end on the
next Business Day in that calendar month (if there is one) or the preceding
Business Day (if there is no such next Business Day in that calendar month).


 


11.                           CHANGES
TO THE CALCULATION OF INTEREST


 


11.1                     Absence
of quotations


 


Subject to Clause 11.2 (Market disruption), if LIBOR for any sum
and any Interest 


 


43

















 


Period relating thereto is to be determined by
reference to the Reference Banks but a Reference Bank does not supply a
quotation by 11:00 a.m. (London time) on the Quotation Day for such
Interest Period, the applicable LIBOR shall be determined on the basis of the
quotations of the remaining Reference Banks.


 


11.2                     Market
disruption


 


(a)                                       If a Market Disruption Event occurs in relation to a Loan for any
Interest Period relating thereto, then the rate of interest on each Lender’s
share of that Loan at any time during that Interest Period shall be the rate
per annum which is the sum of:


 


(i)                                the Margin applicable to such Loan as at such time; and


 


(ii)                             the rate notified to the Facility Agent by that 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 that Lender of funding its participation in that Loan from whatever
source it may reasonably select.


 


(b)                                      In this Agreement “Market Disruption
Event” means in relation to any Loan and any Interest Period
relating thereto:


 


(i)                                at or about noon (London time) on the Quotation Day for such Interest
Period the Screen Rate is not available and none or only one of the Reference
Banks supplies a rate to the Facility Agent to determine LIBOR for such Loan
and such Interest Period; or


 


(ii)                             before close of business in London on the Quotation Day for such Loan
and such Interest Period, the Facility Agent receives notifications from a
Lender or Lenders (whose aggregate participations in such Loan exceed 35 per
cent. of such Loan) that (1) the cost to it or them of obtaining matching
deposits in the London interbank market would be in excess of LIBOR for such
Loan and such Interest Period or (2) matching deposits are not available
to it or them in the London interbank market in the ordinary course of business
to fund its or their participation(s) in such Loan for such Interest
Period.


 


11.3                     Alternative
basis of interest or funding


 


(a)                                       If a Market Disruption Event occurs and the Facility Agent or the
Borrower so requires, the Facility Agent and the Borrower shall enter into
negotiations (for a period of not more than 30 days) with a view to agreeing a
substitute basis for determining the rate of interest.


 


(b)                                      Any alternative basis agreed pursuant to paragraph (a) above shall,
with the prior consent of all the Lenders and the Borrower, be binding on all
Parties.


 


(c)                                       For the avoidance of doubt, unless and until an alternative basis is
agreed in accordance with paragraphs (a) and (b), the rate of interest
applicable to any 


 


44

















 


Loan and any Interest Period relating thereto (in respect of which a
Market Disruption Event has occurred) shall continue to be determined in
accordance with Clause 11.2 (Market disruption).


 


(d)                                      Without prejudice to paragraphs (a) to (c), if a Market Disruption
Event in respect of any Loan and any Interest Period relating thereto has
occurred, the Borrower may, pending the agreement of a substitute basis for
determining the rate of interest in accordance with paragraph (a) above,
agree with the Facility Agent (acting on the instructions of all Lenders) that
such Interest Period for such Loan shall be for a duration of less than one
Month.


 


11.4                     Break
Costs


 


(a)                                       The Borrower shall, within five Business Days of demand by a Finance
Party, pay to that Finance Party its Break Costs attributable to all or any
part of a Loan or any Unpaid Sum being paid by or recovered from any Obligor on
a day other than the last day of an Interest Period for that Loan or that
Unpaid Sum provided that the Borrower shall not be required to pay any Break
Costs attributable to any prepayment under Clause 8.1 (Illegality).


 


(b)                                      Each Finance Party shall, as soon as reasonably practicable after a
demand by the Facility Agent, provide a certificate (in reasonable detail)
confirming the amount of its Break Costs, in relation to any Loan or any Unpaid
Sum and any Interest Period relating thereto.


 


12.                           FEES


 


12.1                     Agency
fee


 


The Borrower shall pay to the Facility Agent
and the Security Agent (for their own account) an agency fee in the amount and
at the times agreed in a Fee Letter.


 


12.2                     Deduction
of fees


 


Payment of the fees in Clause 12.1 (Agency fee) by the Borrower may, at the
election of the Facility Agent, be made out of the proceeds of a Utilisation by
the Borrower and the Facility Agent is hereby irrevocably authorised to deduct
the amount of such fees and apply the same towards payment of such fees on
behalf of the Borrower.


 


45

















 


SECTION 6


ADDITIONAL
PAYMENT OBLIGATIONS


 


13.                           TAX
GROSS UP AND INDEMNITIES


 


13.1                     Definitions


 


(a)                                       In this Agreement:


 


“Protected
Party” means a Finance Party which is or will be subject to any
liability, or required to make any payment, for or on account of Tax in
relation to a sum received or receivable (or any sum deemed for the purposes of
Tax to be received or receivable) under a Finance Document.


 


“Tax Credit”
means a credit against, relief or remission for, or repayment of any Tax.


 


“Tax
Deduction” means a deduction or withholding for or on account of Tax
from a payment under a Finance Document.


 


“Tax Payment”
means either an increase in a payment by an Obligor party hereto to a Finance
Party under paragraph (c) of Clause 13.2 (Tax
gross-up) or a payment by an Obligor party thereto under Clause 13.3
(Tax indemnity).


 


(b)                                      Unless a contrary indication appears, in this Clause 13 a reference to “determines”
or “determined” means a determination made in good faith by the person making
such determination.


 


13.2                     Tax
gross-up


 


(a)                                       Each Obligor party hereto shall make all payments to be made by it under
any or all of the Finance Documents without any Tax Deduction, unless a Tax
Deduction is required by law.


 


(b)                                      Each Obligor party hereto shall promptly upon becoming aware that an
Obligor must make a Tax Deduction (or that there is any change in the rate or
the basis of a Tax Deduction) notify the Facility Agent accordingly.  Similarly, a Lender shall notify the Facility
Agent on becoming so aware in respect of a payment payable to that Lender.  If the Facility Agent receives such
notification from a Lender it shall notify the Borrower and that Obligor.


 


(c)                                       If a Tax Deduction is required by law to be made by an Obligor party
hereto, the amount of the payment due from that Obligor shall be increased to
an amount which (after making any and all Tax Deduction) leaves an amount equal
to the payment which would have been due if no Tax Deduction had been required.


 


(d)                                      If an Obligor party hereto is required to make a Tax Deduction, that
Obligor 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 days of making either a Tax Deduction or any payment
required in 


 


46

















 


connection with that Tax Deduction, the Obligor party hereto making such
Tax Deduction or payment shall deliver to the Facility Agent for the Finance
Party entitled to the payment (to which such Tax Deduction relates) an original
receipt (or a certified copy thereof) reasonably satisfactory to that Finance
Party that such Tax Deduction has been made or (as applicable) any appropriate
payment has been paid to the relevant taxing authority.


 


(f)                                         No Transaction Agent shall have any duty or obligation to facilitate the
making of any Tax Deduction by any Obligor.


 


13.3                     Tax
indemnity


 


(a)                                       The Borrower shall (within five Business Days of demand by the Facility
Agent) pay to a Protected Party an amount equal to the loss, liability or cost
which that Protected Party determines will be or has been (directly or
indirectly) suffered for or on account of Tax by that Protected Party in
respect of any Finance Document.


 


(b)                                      Paragraph (a) above shall not apply:


 


(i)                       with
respect to any Tax assessed on a Protected Party:


 


(A)          under
the law of the jurisdiction in which that Protected Party is incorporated or,
if different, the jurisdiction (or jurisdictions) in which that Protected Party
is treated as resident for tax purposes; or


 


(B)            under
the law of the jurisdiction in which that Protected Party’s Facility Office is
located in respect of amounts received or receivable in that jurisdiction,


 


if that Tax is imposed on or calculated by
reference to the net income received or receivable (but not any sum deemed to
be received or receivable) by that Protected Party; or


 


(ii)                    to
the extent that the loss, liability or cost to which paragraph (a) would
otherwise apply is already compensated for by an increased payment under Clause
13.2 (Tax gross-up).


 


(c)                                       A Finance Party making, or intending to make, a claim under paragraph (a) above
shall notify the Facility Agent of the event which will give, or has given,
rise to such claim, following which the Facility Agent shall promptly notify
the Borrower.


 


(d)                                      A Finance Party shall, on receiving a payment from any Obligor under
this Clause 13.3, notify the Facility Agent.


 


13.4                     Tax
Credit


 


To the extent that an Obligor party hereto makes
a Tax Payment in respect of a Finance Party and that Finance Party determines
that:


 


47














 


(a)                                       a Tax Credit is attributable to that Tax Payment; and


 


(b)                                      that Finance Party has obtained, utilised and fully
retained that Tax Credit,


 


that Finance Party shall pay an amount to that
Obligor which that Finance Party determines will leave it (after that payment)
in the same after-Tax position as it would have been in had such Tax Payment
not been made or required to be made by that Obligor.


 


13.5                 Stamp taxes


 


The Borrower shall pay and, within five
Business Days of demand, indemnify each Finance Party against any cost, loss or
liability which that Finance Party incurs in relation to any or all stamp duty,
registration and/or other similar Taxes payable in respect of any Finance
Document.


 


13.6                 Indirect Tax


 


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


 


(b)                                      If any Indirect Tax is chargeable on any supply made
by any Finance Party (the “Supplier”)
to any other Finance Party (the “Recipient”)
under or in connection with a Finance Document, and to the extent that any
Party (the “Relevant Party”) is
required by the terms of any Finance Document to pay an amount equal to the
consideration for such supply to the Supplier (rather than being required to
reimburse the Recipient in respect of that consideration), that Party shall pay
to the Supplier (in addition to and at the same time as paying that
consideration) an amount equal to the amount of that Indirect Tax.


 


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


 


14.                       INCREASED COSTS


 


14.1                 Increased costs


 


(a)                                       Subject to Clause 14.3 (Exceptions), the Borrower shall, within five Business Days
of a demand by the Facility Agent, pay for the account of a Finance Party the
amount of any Increased Costs incurred by that Finance Party 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, enacted, issued or put into effect after the
date of this Agreement.


 


48

















 


(b)                                      In this Agreement “Increased
Costs” means:


 


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


 


(ii)                             an additional or increased cost; or


 


(iii)                          a reduction of any amount due and payable under any
Finance Document,


 


which is incurred or suffered by a Finance
Party or any of its Affiliates to the extent that it is attributable to that
Finance Party having entered into, or undertaken or assumed any commitment
represented by its Commitment for any Tranche under, or funding or maintaining
any of its share of any or all of the Loans or Unpaid Sums under, or performing
its obligations under, any Finance Document.


 


14.2                 Increased cost claims


 


(a)                                       A Finance Party intending to make a claim pursuant to
Clause 14.1 (Increased costs)
shall notify the Facility Agent of the event giving rise to such claim,
following which the Facility Agent shall promptly notify the Borrower.


 


(b)                                      Each Finance Party shall, as soon as practicable after
a demand by the Facility Agent, provide a certificate confirming the amount of
its Increased Costs in respect of any claim made by such Finance Party under
Clause 14.1 (Increased costs).


 


14.3                 Exceptions


 


(a)                                       Clause 14.1 (Increased
costs) does not apply to any Increased Cost to the extent such
Increased Cost is:


 


(i)                                attributable to a Tax Deduction that is required by
law to be made by an Obligor and that is already compensated for by Clause 13.2
(Tax gross-up);


 


(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)                          incurred by a Finance Party or an Affiliate of a
Finance Party and is attributable to the wilful breach by such Finance Party or
such Affiliate 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).


 


49

















 


15.                       OTHER INDEMNITIES


 


15.1                 Currency indemnity


 


(a)                                       If any sum due from any Obligor party hereto under any
or all of 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 that
Obligor;


 


(ii)                             obtaining or enforcing an order, judgment or award in
relation to any litigation or arbitration proceedings,


 


that Obligor shall as an independent
obligation, within five Business Days of demand, indemnify each Finance Party
to whom that Sum is due against any cost, loss or liability arising out of or
as a result of such conversion including any discrepancy between (A) the
rate of exchange used to convert that Sum from the First Currency into the
Second Currency and (B) the rate or rates of exchange available to that
person at the time of its receipt or recovery of that Sum.


 


(b)                                      Each Obligor party hereto 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


 


(a)                                       The Borrower shall, within three Business Days of
demand, indemnify each of the Finance Parties against any cost, loss or
liability incurred by that Finance Party as a result of:


 


(i)                                the occurrence of any Event of Default;


 


(ii)                             a failure by any Obligor to pay any amount due under a
Finance Document on its due date, including without limitation, any cost, loss
or liability arising as a result of Clause 27 (Sharing
among the Finance Parties);


 


(iii)                          funding, or making arrangements to fund, its
participation in a 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 default or negligence by that Finance
Party alone); or


 


(iv)                         a Loan (or part of a Loan) made to the Borrower not
being prepaid in accordance with a notice of prepayment given by the Borrower.


 


(b)                                      The Borrower shall, within three Business Days of
demand, indemnify each of the Finance Parties, their Affiliates and their
respective officers, directors, agents, employees, representatives and/or
advisers (each an “Indemnified Party”)
from and against any and all claims, damages, losses, liabilities, costs and
expenses (including, without limitation, legal fees and any applicable value 


 


50

















 


added tax), joint or several, that may be
incurred by, or asserted or awarded against, that Indemnified Party, in each
case arising out of or in connection with or relating to the use of the
proceeds of any part of or all of the Loans (including, without limitation,
arising out of or in connection with any investigation, litigation or
proceeding or the preparation of any defence with respect thereto, whether or
not such investigation, litigation or proceedings is brought by a member of the
Group, any Existing Shareholder, any shareholder or creditor of any member of
the Group, any Indemnified Party or any other person) except to the extent that
such claim, damage, loss, liability, cost or expense has been finally
judicially determined to have primarily resulted from such Indemnified Party’s
gross negligence or wilful default. Any Indemnified Party may rely on this
paragraph (b).


 


15.3                 Indemnity to the Calculation
Agent, the Facility Agent and the Security Agent


 


(a)                                       The Borrower shall, within three Business Days of
demand, indemnify each of the Calculation Agent, the Facility Agent and the
Security Agent against any cost, loss or liability incurred by the Calculation
Agent, the Facility Agent or the Security Agent as a result of:


 


(i)                                (in relation to the Facility Agent and the Security
Agent) investigating any event which it believes is a Default; or


 


(ii)                             acting or relying on any notice, request or
instruction which it believes to be genuine, correct and appropriately
authorised.


 


(b)                                      Each Obligor party hereto shall promptly indemnify the
Security Agent and every receiver and delegate against any cost, loss or
liability incurred by any of them as a result of:


 


(i)                                the taking, holding, protection or enforcement of the
Transaction Security,


 


(ii)                             the exercise of any of the rights, powers, discretions
and remedies vested in the Security Agent and each receiver and delegate by the
Finance Documents or by law; and


 


(iii)                          any default by any Obligor in the performance of any
of the obligations expressed to be assumed by it in the Finance Documents.


 


(c)                                       The Security Agent may, in priority to any payment to
the Secured Parties, indemnify itself out of the Charged Property in respect
of, and pay and retain, all sums necessary to give effect to the indemnity in
this Clause and shall have a lien on the Transaction Security and the proceeds
of the enforcement of the Transaction Security for all monies payable to it.


 


(d)                                      This Clause shall survive the termination of this
Agreement and the removal or termination of any Transaction Agent.


 


51

















 


16.                       MITIGATION


 


16.1                 Mitigation


 


(a)                                       Each Finance Party 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 8.1 (Illegality),
Clause 13 (Tax Gross Up and Indemnities)
or Clause 14 (Increased Costs),
except that an Original Lender in respect of any Tranche shall not have any
obligation to mitigate any circumstances that result in any amount becoming
payable under or pursuant to Clause 13 (Tax
Gross Up and Indemnities) if such circumstances are subsisting (or
are a continuation of circumstances subsisting) as at the date on which such
Original Lender became party to this Agreement.


 


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


 


16.2                 Limitation of liability


 


(a)                                       The Borrower shall indemnify each Finance Party,
within three Business Days of demand, for all costs and expenses reasonably
incurred by that Finance Party as a result of steps taken by it under
Clause 16.1 (Mitigation).


 


(b)                                      A Finance Party is not obliged to take any steps under
Clause 16.1 (Mitigation) if,
in the opinion of that Finance Party (acting reasonably), to do so might be
prejudicial to it.


 


17.                       COSTS AND EXPENSES


 


17.1                 Transaction expenses


 


The Borrower shall, within five Business Days
of demand, pay each of the Calculation Agent, the Facility Agent, the Security
Agent and the Arranger the amount of all costs and expenses (including without
limitation legal fees) properly incurred by any or all of them in connection with
the negotiation, preparation, printing, execution, delivery and syndication of:


 


(a)                                       this Agreement and/or any other documents referred to
in this Agreement; and/or


 


(b)                                      any other Finance Documents executed by it after the
date of this Agreement,


 


provided that all costs and expenses (including
without limitation legal fees) properly incurred by any or all of the
Calculation Agent, the Facility Agent, the Security Agent and the Arranger
which are due on the Initial Utilisation Date shall be paid by the Borrower
within 10 Business Days after the Initial Utilisation Date.


 


17.2                 Amendment costs


 


If (a) an Obligor requests an amendment,
waiver or consent or (b) an amendment is required pursuant to Clause 28.9
(Change of currency), the
Borrower shall, within five Business Days of demand, reimburse each of the
Calculation Agent, the Facility Agent, the Security Agent and the Lenders for
the amount of all costs and expenses (including 


 


52

















 


legal fees) properly incurred by it in
responding to, evaluating, negotiating or complying with that request or
requirement.


 


17.3                 Enforcement costs


 


The Borrower shall, within five Business Days
of demand, pay to each Finance Party the amount of all costs and expenses
(including legal fees) incurred by that Finance Party in connection with the
enforcement of, or the preservation of any rights under any Finance Document
and/or any Transaction Security, and/or any proceedings instituted by or
against any Finance Party as a consequence of taking or holding any Transaction
Security.


 


17.4                 Security Agency expenses


 


The Borrower shall, within five Business Days
of demand, pay the Security Agent the amount of all costs and expenses
(including legal fees) incurred by it in connection with the administration or
release of any Transaction Security created pursuant to any Security Document.


 


53

















 


SECTION 7


REPRESENTATIONS,
UNDERTAKINGS AND EVENTS OF DEFAULT


 


18.                       REPRESENTATIONS


 


Each Obligor party hereto makes the
representations and warranties set out in this Clause 18 to each Finance Party
on the date of this Agreement, on the date of the Amendment Agreement, and on the date of the Second Amendment Agreement.


 


18.1                 Status


 


(a)                                       Each of it and its Subsidiaries (if any) is a company
duly established with limited liability and validly existing under the laws of
its jurisdiction of incorporation.


 


(b)                                      Each of it and its Subsidiaries (if any) has the power
to own its assets and carry on its business as it is being conducted.


 


18.2                 Binding obligations


 


The obligations expressed to be assumed by it
in each Transaction Finance Document to which it is or will be a party are
legal, valid, binding and enforceable, subject to:


 


(a)                                       any general principles of law limiting its obligations
which are specifically referred to in any legal opinion accepted pursuant to
Clause 5 (Conditions of Utilisation) or Schedule 1 (Conditions Precedent)
to the Second Amendment Agreement;
and


 


(b)                                      in the case of any Security Document, the Perfection
Requirements.


 


18.3                 Non-conflict with other
obligations


 


The entry into and performance by it of, and
the transactions contemplated by, the Transaction Finance Documents to which it
is a party do not and will not:


 


(a)                                       conflict with any law or regulation applicable to it;


 


(b)                                      conflict with its or any of its Subsidiaries’
constitutional documents;


 


(c)                                       conflict with any agreement or instrument binding upon
it or any of its Subsidiaries or any of its or any of its Subsidiaries’ assets
in any material respect or in any way that might result in any liability on the
part of any Transaction Finance Party; or


 


(d)                                      result in the existence of or oblige it or any of its
Subsidiaries to create any Security over all or any of the assets of it or any
of its Subsidiaries (other than Transaction Security).


 


18.4                 Power and authority


 


(a)                                       It 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 Transaction Finance Documents to which it is a party and the
transactions contemplated by 


 


54

















 


those Transaction Finance Documents.


 


(b)                                      No limit on its powers will be exceeded as a result of
the borrowing, grant of security or giving of guarantees or indemnities
contemplated by the Transaction Finance Documents to which it is a party.


 


18.5                 Validity and admissibility in
evidence


 


All Authorisations required or desirable:


 


(a)                                       to enable it lawfully to enter into, exercise its rights
and comply with its obligations in the Transaction Finance Documents to which
it is a party;


 


(b)                                      to make the Transaction Finance Documents admissible
in evidence in its jurisdiction of incorporation; and/or


 


(c)                                       to enable it to create the Transaction Security
expressed to be created by it pursuant to any Security Document to which it is
a party and to ensure that such Transaction Security has the priority and
ranking it is expressed to have,


 


have been obtained or effected and are in full
force and effect, except:


 


(i)                                          for any applicable Perfection Requirements that are
yet to be complied with in accordance with the Transaction Finance Documents
(which will be complied with by the earlier of (A) the time required under
the Transaction Finance Documents) or (B) the time required under
applicable law or regulations);


 


(ii)                                       for qualifications on matters of law as specifically
referred to in any legal opinion accepted pursuant to Clause 5 (Conditions of Utilisation) or Schedule 1 (Conditions Precedent)
to the Second Amendment Agreement;
and


 


(iii)                                    that the presentation of a translation in Chinese of a
Transaction Finance Document to the relevant court in the PRC is required in
order for such Transaction Finance Document to be admitted in any legal
proceedings before such court in relation to all or any of the Transaction
Finance Documents.


 


18.6                 Governing law and enforcement


 


Except for qualifications on matters of law as
specifically referred to in any legal opinion accepted pursuant to Clause 5 (Conditions of Utilisation) or Schedule 1 (Conditions Precedent)
to the Second Amendment Agreement:


 


(a)                                       the choice of governing law of each Transaction
Finance Document, as set out in such Transaction Finance Document, will be
recognised and enforced in its jurisdiction of incorporation.


 


(b)                                      any judgment obtained in the jurisdiction of the
governing law of any Transaction Finance Document in relation to such
Transaction Finance Document will be recognised and enforced in its
jurisdiction of incorporation or in the jurisdiction where any asset that is
the subject of such judgment is located.


 


55

















 


18.7                 No filing or stamp taxes


 


Except for qualifications on matters of law as
specifically referred to in any legal opinion accepted pursuant to Clause 5 (Conditions of Utilisation) or Schedule 1 (Conditions Precedent)
to the Second Amendment Agreement,
under the law of its jurisdiction of incorporation it is not necessary that the
Transaction Finance Documents or any of them be filed, recorded or enrolled
with any court or other authority in that jurisdiction or that any stamp,
registration or similar tax be paid on or in relation to any or all of the
Transaction Finance Documents or the transactions contemplated by any or all of
the Transaction Finance Documents, except:


 


(a)                                       that the presentation of a translation in Chinese of a
Transaction Finance Document to the relevant court in the PRC is required in
order for such Transaction Finance Document to be admitted in any legal proceedings
before such court in relation to all or any of the Transaction Finance
Documents; and


 


(b)                                      for any applicable Perfection Requirements that are
yet to be complied with in accordance with the Transaction Finance Documents
(which will be complied with by the earlier of (A) the time required under
the Transaction Finance Documents) or (B) the time required under
applicable law or regulations).


 


18.8                 No default


 


(a)                                       No Event of Default is continuing or might reasonably
be expected to result from the making of any Loan or the entry into, the
performance of, or any transaction contemplated by, any Transaction Finance
Document to which it is a party.


 


(b)                                      No other event or circumstance is outstanding which
constitutes a default under any other agreement or instrument which is binding
on it or any of its Subsidiaries or to which any of the assets of it or any of
its Subsidiaries are subject which might have a Material Adverse Effect.


 


(c)                                       No other Default is continuing.


 


18.9                 No misleading information


 


(a)                                       Any factual information provided by or on behalf of
any Obligor, any Existing Shareholder or any member of the Group or any
Affiliate of any of the foregoing (or any of their respective advisers and/or
representatives) for the purposes of the Base Case Model is true and accurate
in all material respects and is not misleading.


 


(b)                                      The expressions of opinions and/or intention provided
by or on behalf of any Obligor, any Existing Shareholder, any member of the
Group or any Affiliate of any of the foregoing in or for the purposes of the
Base Case Model are made after due and careful consideration and are based on
reasonable grounds.


 


(c)                                       Any financial projections and/or forecasts provided by
or on behalf of any Obligor, any Existing Shareholder, any member of the Group
or any Affiliate of any of the foregoing (or any of their respective advisers
and/or representatives), or contained in the Base Case Model, have been
prepared on the basis of recent 


 


56

















 


historical information and on the basis of
reasonable assumptions.


 


(d)                                      All other information (including, without limitation,
information provided through electronic communications) supplied by or on
behalf of any Obligor, any Existing Shareholder, any member of the Group or any
Affiliate of any of the foregoing (or any of their respective advisers and/or
representatives) to any Secured Party (or any advisers or representatives
thereof) is true, complete and accurate in all material respects and not
misleading as at the date of such supply.


 


(e)                                       No event or circumstance has occurred or arisen and no
information has been given, omitted or withheld that results in the information
supplied by or behalf of any Obligor, any Existing Shareholder, any member of
the Group or any Affiliate of any of the foregoing (or any of their respective
advisers and/or representatives) to any Secured Party (or any advisers or
representatives thereof), or any opinions, intentions, forecasts or projections
contained in the Base Case Model, being untrue or misleading in any material
respect.


 


18.10           Financial statements


 


(a)                                       The Original Financial Statements were prepared in
accordance with the Accounting Principles consistently applied.


 


(b)                                      The Original Financial Statements give a true and fair
view of the financial condition of the Borrower as at the end of, and the
results of operations of the Borrower for the period in respect of which such
Original Financial Statements were prepared.


 


(c)                                       There has been no material adverse change in its
business, operations, property, assets, condition (financial or otherwise) or
prospects of the Borrower, or the Group (taken as a whole), since the date of
the Original Financial Statements.


 


(d)                                      The most recent financial statements relating to the
Borrower delivered pursuant to Clause 19.1 (Financial
statements):


 


(i)                                have been prepared in accordance with the Accounting
Principles; and


 


(ii)                             give a true and fair view of (if audited), or fairly
represent (if unaudited), the financial condition of the Borrower as at the end
of, and the results of operations of the Borrower for the period to which such
financial statements relate.  The
Borrower does not have any material liabilities (actual or contingent) as at
the date as at which such financial statements were prepared that are not
disclosed in such financial statements.


 


18.11           Solvency


 


(a)                                       Each member of the Group is able to meet its
obligations and pay its debts as they fall due, and no member of the Group
admits or has admitted any inability to pay its debts as they fall due or has
suspended making payments on any of its debts.


 


57






 










 


(b)                                      No member of the Group has by reason of actual or
anticipated financial difficulties commenced, or intends to commence,
negotiations with one or more of its creditors with a view to rescheduling any
of its indebtedness.


 


(c)                                       In respect of each Obligor, the fair value of its
assets is not less than its liabilities (taking into account contingent and
prospective liabilities).


 


(d)                                      Each member of the Group has sufficient capital to
carry on its business.


 


(e)                                       No moratorium has been, or may, in the reasonably
foreseeable future be, declared in respect of any of the indebtedness of any
member of the Group.


 


18.12           Ranking of obligations


 


(a)                                       Its payment obligations under the Transaction Finance
Documents to which it is a party rank at least pari
passu with the claims of all its other present and future unsecured
and unsubordinated creditors, except for obligations mandatorily preferred by
law applying to companies generally.


 


(b)                                      The Transaction Security has or will have the ranking
in priority which it is expressed to have in the Security Document(s) governing
or evidencing such Transaction Security.


 


18.13           No proceedings pending or
threatened


 


No investigation,
litigation, arbitration or administrative proceedings of or before any court,
arbitral body or agency which, if adversely determined, might reasonably be
expected to have a Material Adverse Effect have (to the best of its knowledge
and belief) been started or threatened, or are pending, against it or any of
its Subsidiaries.


 


18.14           No breach of laws


 


(a)                                       It has not (and none of its Subsidiaries has) breached
any law or regulation which breach has or could 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 member of the Group which have or could reasonably be expected to have a
Material Adverse Effect.


 


18.15           Environmental compliance


 


Each member of the
Group has performed and observed in all material respects all Environmental
Law, Environmental Permits and all other material covenants, conditions,
restrictions and/or agreements directly or indirectly concerned with any
contamination, pollution or waste or the release or discharge of any toxic or
hazardous substance in connection with any real property which is or was at any
time owned, leased or occupied by any member of the Group or on which any
member of the Group has conducted any activity.


 


58

















 


18.16           Environmental Claims


 


No Environmental
Claim has been commenced or (to the best of its knowledge and belief) is
threatened or pending against any member of the Group where that claim would or
could reasonably be expected, if determined against that member of the Group,
to have a Material Adverse Effect.


 


18.17           Taxation


 


(a)                                       Each of it and its Subsidiaries has duly and
punctually paid and discharged all Taxes imposed upon it or its assets within
the time period allowed without incurring penalties (save in each case to the
extent that (i) payment is being contested in good faith, (ii) it has
maintained adequate reserves for those Taxes and (iii) payment can be
lawfully withheld).


 


(b)                                      None of it or any of its Subsidiaries is materially
overdue in the filing of any Tax returns.


 


(c)                                       No claims are being or are reasonably likely to be
asserted against it or any of its Subsidiaries with respect to Taxes.


 


18.18           Insurance


 


Each member of the Group has valid insurance on
and in relation to its business and assets with reputable underwriters or
insurance companies against those risks and to the extent as is usual for
companies carrying on the same or substantially similar business in the
location(s) where such member carries on business and/or where any of its
assets are located, except for:


 


(a)                                       any insurance referred to in paragraph 5(i) of
Schedule 2 (Conditions Precedent for initial Utilisation)
which, to the extent that such insurance is available on reasonable commercial
terms, will have been effected and be in full force and effect with effect from
no later than the delivery of the first Utilisation Request; and


 


(b)                                      any insurance referred to in paragraph (b) of
Clause 21.10 (Insurance) which,
to the extent that such insurance is available on reasonable commercial terms,
will have been effected and be in full force and effect as soon as reasonably
practicable after customs clearance in respect of the applicable LHD Unit(s).


 


18.19           Intellectual Property


 


(a)                                       Each member of the Group:


 


(i)                                is the sole legal and beneficial owner of, or has a
valid licence of, any and all Intellectual Property which is material in the
context of its business and/or which is required by it in order to carry on its
business as it is being conducted from time to time;


 


(ii)                             is not in infringement of and has not infringed any
Intellectual Property of any third party in any material respect; and


 


(iii)                          has taken all actions (including without limitation
payment of fees) 


 


59

















 


required to maintain
any material Intellectual Property owned by it.


 


(b)                                      It is not aware of any adverse circumstances relating
to the validity, subsistence or use of any Intellectual Property owned by it or
any other member of the Group which would, or could reasonably be expected to,
have a Material Adverse Effect.


 


18.20           Material Authorisations


 


Each member of the Group has obtained and/or
effected, and has complied in all material respects with, any and all material
Authorisations that are required in respect of its business and/or its assets,
and all of such material Authorisations are in full force and effect.


 


18.21           Financial Indebtedness and
Security


 


(a)                                       No member of the Group has any Financial Indebtedness
outstanding except for any Permitted Financial Indebtedness.


 


(b)                                      No Security or Quasi-Security exists over all or any
of the present or future assets of any member of the Group except for any
Permitted Security.


 


18.22           Good title to assets


 


Each of it and its Subsidiaries has valid title
to, or valid leases or licences of, or is otherwise entitled to use, the assets
necessary to carry on its business as presently conducted, except where the
lack of such title, leases or licences in respect of such assets could not
reasonably be expected to have a Material Adverse Effect.


 


18.23           Legal and beneficial ownership


 


(a)                                       It is the sole beneficial owner of the assets over
which it grants or purports to grant any Transaction Security.


 


(b)                                      Subject to the Permitted Reorganisation:


 


(i)                                Parentco directly beneficially owns 100% of the
registered capital and equity interests in the Borrower, free and clear of any
Security (except for any Transaction Security);


 


(ii)                             Holdco directly beneficially owns 100% of the issued
shares (of each class) of and equity interests in Parentco, free and clear of
any Security (except for any Transaction Security);


 


(iii)                          prior to the completion of the Relevant Permitted Reorganisation,
Premium Sino directly beneficially owns at least 90% of the issued
shares of and equity interests in Holdco, free and clear of any Security
(except for any Transaction Security);


 


(iv)                         upon and after completion of the Relevant Permitted Reorganisation,
Cayman Co directly beneficially owns 100% of the issued shares of
and equity interests in Holdco, free and clear of any Security (except for any 


 


60

















 


Transaction Security);


 


(v)                            upon and after completion of the Relevant Permitted Reorganisation, Premium Sino directly beneficially owns at least 90%
of the issued shares of and equity interests in Cayman Co, free and clear of any Security (except for any
Transaction Security); and


 


(vi)                         the Sponsor directly beneficially owns 100% of the
issued shares of and equity interests in Premium Sino, free and clear of any
Security (except for any Transaction Security).


 


18.24           Shares


 


(a)                                       The shares of, registered capital of and/or equity
interests in each member of the Group which are subject to any Transaction
Security are fully paid and are not subject to any option to purchase or
similar rights.


 


(b)                                      None of the constitutional documents of any member of
the Group or any agreement or arrangement binding on any member of the Group
restricts or inhibits:


 


(i)                                the creation of any Transaction Security; or


 


(ii)                             any transfer of any shares of, registered capital of
or equity interests in any member of the Group (which shares or equity
interests are the subject of any Transaction Security) on enforcement of any
Transaction Security.


 


(c)                                       The shares of and/or equity interests in Parentco
which are subject to Security under any Security Document constitute all of the
shares of and equity interests in Parentco.


 


(d)                                      The registered capital of and/or equity interests in
the Borrower which are subject to Security under any Security Document
constitute all of the registered capital of and equity interests in the
Borrower.


 


18.25           Group Structure Chart


 


(a)                                       The Group Structure Chart is true, complete and
accurate in all material respects and shows the following information:


 


(i)                                each member of the Group, including current name, its
jurisdiction of incorporation and/or establishment, a list of holder(s) of
Equity Interests in it, the Equity Interests in it held by each such holder and
indicating whether it is a company with limited liability;


 


(ii)                             all minority interests in any member of the Group and
any person in which any member of the Group holds shares in its issued share
capital or equivalent ownership interest of such person; and


 


(b)                                      all necessary loans, share transfers and other steps
(if any) between members of 


 


61

















 


the Group resulting
in the Group structure 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.


 


18.26           Shareholders’ documents


 


(a)                                       The constitutional documents of Cayman Co, Holdco,
Parentco and the Borrower and (in the case of Cayman Co) the Transaction Warrant Documents contain all the
material terms of any and all agreements and arrangements between any or all of
the holders of Equity Interests in Cayman Co, Holdco, Parentco and the Borrower respectively, with
respect to the ownership of, the equity interests in, and/or the exercise of
voting and/or management rights (including without limitation any right to
appoint directors) and/or economic benefits attaching to any of the shares of
and/or equity interests in, Cayman Co, Holdco, Parentco and the Borrower respectively.


 


(b)                                      None of the Existing Shareholders or any of their
respective Affiliates has entered into any other agreement or arrangement with
respect to the ownership of, the equity interests in, and/or the exercise of
voting and/or management rights (including without limitation any right to
appoint directors) and/or economic benefits attaching to any of the shares of
and/or equity interests in, Cayman Co, Holdco, Parentco or the Borrower.


 


(c)                                       Each of the constitutional documents of each of the
Obligors party hereto is in full force and effect and has not been:


 


(i)                                terminated, rescinded or cancelled; or


 


(ii)                             amended, varied or supplemented (in each case, from
the form delivered to the Facility Agent under Schedule 2 (Conditions Precedent for initial Utilisation) or (in the case of Cayman Co) from the form delivered to the Facility
Agent pursuant to Schedule 1 (Conditions Precedent)
to the Second Amendment Agreement) in
any material respect except with the prior written consent of the Facility
Agent (except for any amendments that are expressly permitted under paragraphs
(c)(i) and (ii) of Clause 21.19 (Share
capital)).


 


18.27           Material Contracts


 


(a)                                       It is in compliance in all material respects with all
of its obligations under the Material Contracts to which it is a party, and to
the best of its knowledge:


 


(i)                                no representation or warranty given by any party to
any Material Contract is untrue or misleading in any material respect; and


 


(ii)                             no party to any Material Contract is in default under
or breach of any of its obligations under such Material Contract in any
material respect.


 


(b)                                      Each of the Material Contracts (that has been entered
into) is in full force and effect, and no termination, rescission, repudiation or
cancellation of any Material 


 


62

















 


Contract has occurred, and no member of the Group:


 


(i)                                has received or given any
notice of termination, rescission, repudiation or cancellation of or material
default or breach under any Material Contract;


 


(ii)                             has made or received any
allegation of illegality, invalidity or unenforceability of any Material
Contract; or


 


(iii)                          is aware of any ground for any such termination,
rescission, repudiation, cancellation, default, breach or allegation.


 


(c)                                       Except as otherwise
disclosed in writing to the Facility Agent prior to the date of this Agreement
and except (in respect of any Material Sales Contracts and/or any other LHD
Contracts and/or MD Contracts only) as otherwise permitted under Clause 21.20 (Material Contracts), there has been no
amendment, variation or supplement of or to, or waiver of any material right or
remedy by any member of the Group of, any of the terms of any Material
Contract, and no member of the Group has given any consent (which could
reasonably be expected to be materially adverse to the interests of any member
of the Group or any Transaction Finance Party) under any Material Contract.


 


18.28           Pensions


 


All pension schemes operated by or maintained
for the benefit of any or all members of the Group and/or any or all of their
respective employees are fully funded based on reasonable actuarial assumptions
and recommendations and are operated and maintained in accordance with the
requirements of applicable laws.


 


18.29           No immunity


 


In any proceedings taken in its jurisdiction of
incorporation in relation to any Transaction Finance Document to which it is a
party, it will not be entitled to claim for itself or any of its assets
immunity from suit, execution, attachment or other legal process.


 


18.30           Private and commercial acts


 


Its execution of the Transaction Finance
Documents to which it is a party constitutes, and its exercise of its rights
and performance of its obligations thereunder will constitute, private and
commercial acts done and performed for private and commercial purposes.


 


18.31           No prior business


 


(a)                                       None of Cayman Co, Holdco or Parentco has traded or incurred any
liabilities or commitments (actual or contingent, present or future) other
than:


 


(i)                                liabilities that arise in the ordinary course of
acting as a Holding Company of shares in its Subsidiaries;


 


(ii)                             liabilities under the Transaction Finance Documents to
which it is a party; and


 


63

















 


(iii)                          (in the case of Parentco) liabilities under any
Permitted Sponsor Subordinated Debt.


 


(b)                                      Cayman Co does not directly hold or own any Equity Interest in any
person other than Holdco.


 


(c)                                       Holdco does not directly hold or own any Equity
Interest in any person other than Parentco.


 


(d)                                      Parentco does not hold or own any Equity Interest in
any person other than the Borrower.


 


(e)                                       The Borrower does not hold or own any Equity Interest
in any person.


 


18.32           Anti-money laundering and
Anti-Terrorism Laws


 


(a)                                       It is not, and none of its directors, officers,
agents, employees or Affiliates are currently subject to any United States
sanctions administered by the Office of Foreign Assets Control of the United
States Department of the Treasury.


 


(b)                                      It has not, and none of its directors, officers,
agents, employees or Affiliates, or other person acting on its behalf or any of
its Subsidiaries has, used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political activity,
made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds, violated or is in
violation of any provision of the United States Foreign Corrupt Practices Act
of 1977 (the “FCPA”), or made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment prohibited under
any applicable law or regulation equivalent to the FCPA.


 


(c)                                       The operations of it and its Affiliates are and have
been conducted at all times in compliance with applicable financial record
keeping and reporting requirements and money laundering statutes in each of the
jurisdictions in which it and its Affiliates are incorporated and of all
jurisdictions in which it and its Affiliates conduct business, the rules and
regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency
(collectively, “Money Laundering Laws”) and no action, suit or proceeding
by or before any court of governmental agency, authority or body or any
arbitrator involving it or any of its Affiliates with respect to Money
Laundering Laws is pending and, to the best of its knowledge, no such actions,
suits or proceedings are threatened or contemplated.


 


18.33           Bank accounts


 


It has disclosed, prior to the date of this
Agreement or (in the case of Cayman Co) prior to the
date of the Secondment Amendment Agreement, each of its accounts (other than the accounts specified in paragraph 1(a) of
Schedule 6 (Bank Accounts)) to the Facility Agent.


 


18.34           Tax residence


 


None of  Cayman Co, Holdco or Parentco is deemed to be PRC residents for PRC tax
purposes.


 


64

















 


18.35           Repetition


 


(a)                                       All the representations and warranties in this Clause
18 are made by each Obligor party hereto to each Finance Party on the date of
this Agreement, on
the date of the Amendment Agreement and on the date of the
Second Amendment Agreement.


 


(b)                                      On the date of each Utilisation Request and on each
Utilisation Date, each of the representations and warranties set out in Clause
18 (Representations) (except Clause 18.7 (No filing or stamp taxes), paragraphs (a) to (c) and
(e) of Clause 18.9 (No misleading information),
paragraphs (a) and (b) of Clause 18.10 (Financial statements),
Clause 18.25 (Group Structure Chart),
paragraphs (a) and (b) of Clause 18.26 (Shareholders’ documents), Clause 18.27 (Material Contracts) and Clause 18.33 (Bank accounts)) shall be deemed to be made by each Obligor
party hereto.


 


(c)                                       On the first day of each Interest Period relating to
each Loan, and on the date on which any Lender Accession Memorandum is
executed, each of the representations and warranties in Clause 18 (Representations) (except Clause 18.7 (No filing or
stamp taxes), paragraph (c) of Clause 18.8 (No default), paragraphs (a) to (c) and (e) of
Clause 18.9 (No misleading information),
paragraphs (a) and (b) of Clause 18.10 (Financial statements), Clause 18.25 (Group
Structure Chart), paragraphs (a) and (b) of Clause 18.26 (Shareholders’ documents), Clause 18.27 (Material Contracts) and Clause 18.33 (Bank accounts)) shall be deemed to be made by each Obligor
party hereto.


 


(d)                                      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 on which such representation or
warranty is deemed to be made (except that, for the avoidance of doubt, any
representation or warranty that is expressed to be made by reference to the
facts and circumstances existing as at a specific date shall be made by
reference to the facts and circumstances existing as at such specific date).


 


19.                       INFORMATION UNDERTAKINGS


 


The undertakings in this Clause 19 shall remain
in force from the date of this Agreement for so long as any amount is
outstanding under any Finance Document or any commitment represented by any
Commitment in respect of any Tranche of any Lender is in force or any Lender
Accession Memorandum may be delivered in accordance with Clause 4.1 (Accession).


 


19.1                 Financial statements


 


The Borrower shall supply or procure the supply
to the Facility Agent (in sufficient copies for all the Finance Parties and the
Calculation Agent):


 


(a)                                       as soon as the same become available, but in any event
within 120 days after the end of each of its Financial Years the audited
financial statements of the Borrower for that Financial Year audited by an
Approved Audit Firm; and


 


65

















 


(b)                                      as soon as the same become available, but in any event
within 45 days after the end of the each Financial Quarter in each of its
Financial Years the unaudited financial statements of the Borrower for such
Financial Quarter.


 


19.2                 Compliance Certificate


 


(a)                                       The Borrower shall procure the delivery of a
Compliance Certificate to the Facility Agent with each set of financial
statements delivered under paragraphs (a) and (b) of Clause 19.1 (Financial statements).


 


(b)                                      Each Compliance Certificate in respect of any
financial statements delivered under Clause 19.1 (Financial statements) shall:


 


(i)                                (in the case of each set of financial statements
delivered under paragraph (a) of Clause 19.1 (Financial statements), and in the case of each set of
financial statements relating to any Financial Quarter ending on 31 March or
30 September delivered under paragraph (b) of Clause 19.1 (Financial statements)) set out (in
reasonable detail) computations as to compliance with Clause 20 (Financial covenants) as at the date as at
which such financial statements were drawn up; and


 


(ii)                             confirm that no Default has occurred and is continuing
or, if a Default is continuing, specify the nature of such Default and the
steps being taken to remedy such Default.


 


(c)                                       Each Compliance Certificate shall be signed by (A) the
most senior financial officer or the chief executive officer and (B) a
director of the Borrower.


 


19.3                 Requirements as to financial
statements


 


The Borrower shall ensure that each set of
financial statements delivered or procured pursuant to Clause 19.1 (Financial statements) shall be:


 


(a)                                       certified (for and on behalf of the Borrower) by (i) the
most senior financial officer of or the chief executive officer and (ii) a
director of the Borrower as giving a true and fair view of (if audited), or
fairly represent (if unaudited), the financial condition of the Borrower as at
the date as at which those financial statements were drawn up and the results
of operations of the Borrower during the period to which those financial
statements relate, and any such certification shall be binding on the Obligors
party hereto; and


 


(b)                                      prepared in accordance with the Accounting Principles
consistent with those applied in the preparation of the Original Financial
Statements unless, in relation to such financial statements, it notifies the
Facility Agent that there has been a change in the Accounting Principles and
delivers to the Facility Agent:


 


(i)                                a description of any change necessary for those
financial statements to reflect the Accounting Principles upon which the
Original Financial Statements were prepared; and


 


(ii)                             sufficient information, in form and substance as may
be reasonably 


 


66

















 


required by the
Facility Agent, to enable the Finance Parties to determine whether Clause 20 (Financial covenants) has been complied
with and make an accurate comparison between the financial position indicated
in those financial statements and such Original Financial Statements,


 


provided that any reference in this Agreement
to any financial statements of the Borrower shall be construed as a reference
to those financial statements as adjusted to reflect the basis upon which the
Original Financial Statements were prepared.


 


19.4                 Year-end


 


Each Obligor party hereto shall procure that
the last day of each Financial Year of it and each of its Subsidiaries falls on
30 September.


 


19.5                 Information: miscellaneous


 


(a)                                       Each Obligor party hereto shall supply to the Facility
Agent (in sufficient copies for all the Finance Parties, if the Facility Agent
so requests):


 


(i)                                all documents dispatched by any member of the Group to
its shareholders or investors (or any class of them) or its creditors generally
at the same time as they are dispatched;


 


(ii)                             promptly upon becoming aware of them, the details of
any investigation, litigation, arbitration or administrative proceedings which
are current, threatened or pending against any Obligor or any other member of
the Group and which would, if adversely determined, reasonably be expected to
have a Material Adverse Effect; and


 


(iii)                          promptly, such further information regarding the
Transaction Security and/or the financial condition, business and operations of
any member of the Group as any Finance Party (through the Facility Agent) may
reasonably request.


 


(b)                                      The Borrower shall supply the Calculation Agent, the
Facility Agent and/or the Security Agent with or procure the supply to the
Facility Agent and/or the Security Agent of such information as it may from
time to time reasonably require for the performance of its rights and
obligations under the Finance Documents.


 


19.6                 Notification of default


 


(a)                                       Each Obligor party hereto shall notify the Facility
Agent of any Default (and the steps, if any, being taken to remedy it) promptly
upon becoming aware of its occurrence.


 


(b)                                      Promptly upon a request by the Facility Agent, the
Borrower shall supply to the Facility Agent a certificate signed on its behalf
by (i) the most senior financial officer or the chief executive officer of
the Borrower and (ii) a director of the


 


67






 










 


Borrower certifying
that no Default is continuing (or if a Default is continuing, specifying such
Default and the steps, if any, being taken to remedy it).  Any such certificate shall be binding on the
Obligors party hereto.


 


19.7                 “Know your customer” checks


 


(a)                                       If:


 


(i)                                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;


 


(ii)                             any change in the status of any Obligor or the
composition of the shareholders, members or investors of any Obligor after the
date of this Agreement; or


 


(iii)                          a proposed assignment or transfer by a Finance Party
of any of its rights and obligations under any Finance Document to any person,


 


obliges the Calculation Agent, the Facility
Agent, the Security Agent or any Finance Party (or, in the case of paragraph (iii) above,
any prospective assignee or transferee of any Finance Party) to comply with any
“know your customer”, anti-money laundering or similar identification procedures
in circumstances where the necessary information is not already available to
it, each Obligor party hereto shall promptly upon the request of the
Calculation Agent, the Facility Agent, the Security Agent or any Finance Party
supply, or procure the supply of, such documentation and other evidence as is
reasonably requested by the Calculation Agent, the Facility Agent (for itself
or on behalf of any Finance Party), the Security Agent or any Finance Party
(for itself or, in the case of paragraph (iii) above, on behalf of any
prospective assignee or transferee of such Finance Party) in order for the
Calculation Agent, the Facility Agent, the Security Agent, such Finance Party
or, in the case of paragraph (iii) above, any prospective assignee or
transferee of such Finance Party to carry out and be satisfied with the results
of all necessary “know your customer”, anti-money laundering and/or other
similar checks under all applicable laws and regulations in connection with any
or all of the Finance Documents and/or the transactions contemplated
thereunder.


 


(b)                                      Each Lender shall promptly upon the request of any of
the Calculation Agent, the Facility Agent or the Security Agent supply, or
procure the supply of, such documentation and other evidence as is reasonably
requested by the Calculation Agent (for itself), the Facility Agent (for
itself) or the Security Agent (for itself) in order for the Calculation Agent,
the Facility Agent or the Security Agent to carry out and be satisfied with the
results of all necessary “know your customer”, anti-money laundering and/or
other similar checks under all applicable laws and regulations in connection
with any or all the Finance Documents and/or the transactions contemplated
thereunder.


 


68

















 


20.                       FINANCIAL COVENANTS


 


The undertakings in this Clause 20 shall remain
in force from the date of this Agreement for so long as any amount is
outstanding under any Finance Document or any commitment represented by any
Commitment in respect of any Tranche of any Lender is in force or any Lender
Accession Memorandum may be delivered in accordance with Clause 4.1 (Accession).


 


20.1                 Financial definitions


 


In this Clause 20:


 


“Cash Flow Before Debt
Service” means, in respect of any Ratio Period, without duplication
and in each case determined in accordance with Accounting Principles, EBITDA
for such Ratio Period:


 


(a)                                       less actual cash paid during such Ratio Period in
respect of Income Taxes;


 


(b)                                      less any changes in working capital (positive if there
is an increase in working capital, and negative if there is a reduction in
working capital) of the Borrower for such Ratio Period (provided that any
change to the “prepayment” item on the Borrower’s balance sheet which is
associated with fixed asset investment shall be excluded from any such
calculation of working capital);


 


(c)                                       less Maintenance Capital Expenditure paid by the
Borrower during such Ratio Period;


 


(d)                                      add cash balance (including the balance of the Onshore
Cash Collateral Account) of the Borrower as at the beginning of such Ratio
Period; and


 


(e)                                       less the Injection Amount as at the beginning of such
Ratio Period.


 


“EBIT” means,
for any Ratio Period, without duplication, the Net Income for such Ratio
Period, plus (without duplication) the following to the extent deducted in
calculating such Net Income:


 


(a)                                       Interest Expense;


 


(b)                                      Income Taxes;


 


(c)                                       other non-cash charges reducing such Net Income
(excluding any such non-cash charge to the extent it represents an accrual of
or reserve for cash charges in any future period or amortization of a prepaid
cash expense that was paid in a prior period and not included in the
calculation of EBIT), less any non-cash items increasing such Net Income for
such Ratio Period.


 


“EBITDA” means,
for any Ratio Period, without duplication, the EBIT for such Ratio Period, plus
(without duplication) the following to the extent deducted in calculating such
EBIT:


 


(a)                                       depreciation expense as required by the Accounting
Principles; and


 


(b)                                      amortization expense or impairment charges as required
by the Accounting Principles.


 


69

















 


“Income Taxes”
means, for any Ratio Period, taxes imposed upon the Borrower, determined in
accordance with the Accounting Principles, or other payments required to be
made by the Borrower by any Government Agency which taxes or other payments are
calculated by reference to the income or profits of the Borrower (to the extent
such income or profits were included in computing Net Income for such Ratio
Period), regardless of whether such taxes or payments are required to be
remitted to any Government Agency.


 


“Injection
Amount” means an amount equal to (i) the aggregate proceeds
received by the Borrower in respect of contributions towards its registered
capital at any time on or after 10 December 2009 less (ii) the
aggregate outstanding principal amount of any Permitted Loan(s) made by
the Borrower to the Sponsor (in calculating such principal amount, such
principal shall not include any capitalised interest), provided that if the
Injection Amount (as calculated pursuant to the foregoing) is negative, it
shall be deemed to be zero.


 


“Interest Expense”
means, for any Ratio Period, the total interest expense of the Borrower for
such Ratio Period (calculated without regard to any limitations on the payment
thereof and including amortization of debt discount and deferred financing
costs, capitalized interest, interest paid in kind, commitment fees, costs
incurred in hedging or terminating any hedge of Indebtedness for Borrowed
Money, and letter of credit fees) determined in accordance with the Accounting
Principles plus, without duplication:


 


(a)                                       the cash contributions to any employee stock ownership
plan or similar trust to the extent such contributions are used by such plan or
trust to pay interest or fees to any person (other than Borrower) in connection
with Indebtedness for Borrowed Money incurred by such plan or trust;


 


(b)                                      all interest payable with respect to discontinued
operations;


 


(c)                                       all interest on any Indebtedness for Borrowed Money of
any other person guaranteed by the Borrower,


 


but excluding interest expenses relating to (i) any
marked-to-market derivative transactions entered into in respect of the
Borrower’s payment obligations under the Facility and/or (ii) any option
to purchase shares in the Borrower or similar rights issued by it.


 


“Maintenance Capital
Expenditure” means, with respect to any person, for any Ratio
Period, expenditure made in connection with the maintenance, replacement, substitution
or restoration of existing property by such person, determined in accordance
with the Accounting Principles, but excluding:


 


(a)                                       any expenditure to the extent financed from proceeds
paid on account of the loss of or damage to the property being replaced or
restored;


 


(b)                                      any expenditure to the extent financed from with
awards of compensation arising from the taking by eminent domain or
condemnation of the property being replaced;


 


70

















 


(c)                                       (with regard to equipment that is purchased
simultaneously with the trade-in of existing equipment, fixed assets or
improvements) any expenditure to the extent financed from the credit granted by
the seller of such equipment for the trade-in of such equipment, fixed assets
or improvements; or


 


(d)                                      for the avoidance of doubt, any expenditure that is
not of a maintenance nature but that increases the value of the property, plant
or equipment as reflected in the balance sheet of such person.


 


“Net Cash”
means, for any Ratio Period, the Borrower’s cash balance less (a) the
Total Debt and (b) the Injection Amount (in each case) at the end of such
Ratio Period.


 


“Net Income”
means, for any Ratio Period, the net income (loss) of the Borrower determined
in accordance with the Accounting Principles; provided, however, that there
will not be included in such Net Income:


 


(a)                                      any net income (loss) of any person (other than the
Borrower), except that:


 


(i)                                the Borrower’s equity (calculated by reference to the
Borrower’s equity interest in such person) in the net income of any such person
for such period will be included in such Net Income up to the aggregate amount
of cash actually distributed by such person during such Ratio Period to the
Borrower as a dividend or other distribution; and


 


(ii)                             the Borrower’s equity (calculated by reference to the
Borrower’s equity interest in such person) in a net loss of any such person for
such Ratio Period will be included in determining such Net Income to the extent
such loss has been funded with cash from the Borrower;


 


(b)                                     any net income (loss) of any person acquired by the
Borrower in a pooling of interests transaction for any period prior to the date
of such acquisition.


 


“Net Worth”
means the stockholders’ equity of the Borrower, determined on in accordance
with the Accounting Principles, but excluding (for the avoidance of doubt):


 


(a)                                      all minority interests; and


 


(b)                                     all writeups in the book value of any asset owned by
the Borrower since the first Utilisation Date.


 


“Total Debt”
means total Financial Indebtedness of the Borrower as of the last day of any
Ratio Period, determined in accordance with Accounting Principles, excluding,
for the avoidance of doubt, any trade indebtedness incurred in the ordinary
course of business.


 


“Total Debt Service”
means, for any Ratio Period, the sum of:


 


(a)                                      Total Debt at the end of such Ratio Period; and


 


(b)                                     Interest Expense for such Ratio Period.


 


71

















 


20.2                 Financial condition


 


Each Obligor party hereto shall ensure that:


 


(a)                                       in respect of each Ratio Period ending on or after the
date of this Agreement:


 


(i)                                the ratio of Total Debt as at the end of such Ratio
Period to EBITDA for such Ratio period shall not exceed the ratio set out
beside such Ratio Period in the table below:


 


	
  Ratio Period ending

  	
   

  	
  Ratio

  
	
  0n 31 March 2010

  	
   

  	
  2.2 : 1

  
	
  On 30 September 2010

  	
   

  	
  2.0 : 1

  
	
  After 30 September 2010

  	
   

  	
  1.2 : 1

  



 


(ii)                             the ratio of Total Debt to Net Worth as at the end of
such Ratio Period shall not exceed the ratio set out beside such Ratio Period
in the table below:


 


	
  Ratio Period ending

  	
   

  	
  Ratio

  
	
  On 31 March 2010 and 30
  September 2010

  	
   

  	
  0.8 : 1

  
	
  On 31 March 2011 and 30
  September 2011

  	
   

  	
  0.6 : 1

  
	
  After 30 September 2011

  	
   

  	
  0.6 : 1

  



 


(iii)                          the ratio of Cash Flow Before Debt Service to Total
Debt Service for such Ratio Period shall not be less than the ratio set out
beside such Ratio Period in the table below:


 


	
  Ratio Period ending

  	
   

  	
  Ratio

  
	
  On 31 March 2010

  	
   

  	
  0.5 : 1

  
	
  On 30 September 2010

  	
   

  	
  0.7 : 1

  
	
  On 31 March 2011

  	
   

  	
  1.0 : 1

  
	
  On 30 September 2011

  	
   

  	
  1.3 : 1

  
	
  After 30 September 2011

  	
   

  	
  1.6 : 1

  



 


(iv)                         the ratio of EBIT to Interest Expense for such Ratio
Period shall not be less than the ratio set out beside such Ratio Period in the
table below:


 


72

















 


	
  Ratio Period ending

  	
   

  	
  Ratio

  
	
  On 31 March 2010

  	
   

  	
  12.0 :

  
	
  On 30 September 2010

  	
   

  	
  8.0 : 1

  
	
  On 31 March 2011

  	
   

  	
  12.0 : 1

  
	
  On 30 September 2011

  	
   

  	
  12.0 : 1

  
	
  After 30 September 2011

  	
   

  	
  8.0 : 1

  



 


and


 


(b)                                      in respect of each Ratio Period ending on or after 30 September 2011,
the ratio of Capital Expenditure for the 6-month period ending on the last day
of such Ratio Period to Net Cash as at the end of the immediately preceding
Ratio Period shall not exceed 0.75 : 1.


 


20.3                 Financial testing


 


(a)                                       The financial covenants set out in Clause 20.2 (Financial condition) shall be calculated
in accordance with the Accounting Principles and tested by reference to each of
the financial statements delivered pursuant to Clause 19.1 (Financial statements) and/or each
Compliance Certificate delivered pursuant to Clause 19.2 (Compliance Certificate).


 


(b)                                      For the purposes of this Clause 20, to the extent not
otherwise expressly defined in this Agreement, each of the accounting terms
used in the definitions in Clause 20.1 (Financial
definitions) and the related definitions in Clause 1.1 (Definitions) shall be construed in
accordance with the Accounting Principles.


 


20.4                 Capital Expenditure


 


(a)                                       Without prejudice to paragraph (b), each Obligor party
hereto shall ensure that:


 


(i)                                neither Cayman Co, Holdco or Parentco shall incur any Capital
Expenditure; and


 


(ii)                             the aggregate Capital Expenditure incurred by any and
all members of the Group (other than Cayman Co, Holdco and Parentco) during any Financial Year shall
not exceed (or the equivalent thereof in US$ shall not exceed) US$1,000,000,
provided that in calculating such Capital Expenditure incurred by any and all
members of the Group under this paragraph (a)(ii), the following Capital
Expenditure shall be excluded:


 


(A)                    any Project Capital Expenditure;


 


(B)                      any Capital Expenditure incurred on or prior to 31 December 2010
and approved under the applicable Approved Capex Budget, up to an aggregate
amount of RMB 25,000,000 (or its equivalent); 


 


73

















 


 and


 


(C)                      any Capital Expenditure incurred after 31 December 2010
and approved under the applicable Approved Capex Budget.


 


(b)                                      Each Obligor party hereto shall ensure that no member
of the Group shall incur any Capital Expenditure:


 


(i)                                that is funded from any amount in any of the accounts
in paragraph 1(a) of Schedule 6 (Bank
Accounts), except pursuant to the Approved Capex Budget or, as the
case may be, the Approved Project Capex Schedule; or


 


(ii)                             that is funded from any amount in any of its accounts
(other than the accounts in paragraph 1(a) of Schedule 6 (Bank Accounts)) or any other source,
except pursuant to (A) the Approved Capex Budget or, as the case may be,
the Approved Project Capex Schedule or (B) paragraph (a)(ii) above.


 


21.                       GENERAL UNDERTAKINGS


 


The undertakings in this Clause 21 shall remain
in force from the date of this Agreement for so long as any amount is
outstanding under any Finance Document or any commitment represented by any
Commitment in respect of any Tranche of any Lender is in force or any Lender
Accession Memorandum may be delivered in accordance with Clause 4.1 (Accession).


 


21.1                 Authorisations


 


(a)                                       Each Obligor party hereto shall promptly:


 


(i)                                obtain, comply with and do all that is necessary to
maintain in full force and effect; and


 


(ii)                             supply certified copies to the Facility Agent of,


 


any Authorisation
required under any law or regulation of its jurisdiction of incorporation
and/or the jurisdiction of the governing law of any Transaction Finance
Document to which it is a party to enable it to perform its obligations under
the Transaction Finance Documents to which it is a party and/or to ensure the
legality, validity, enforceability or admissibility in evidence in its
jurisdiction of incorporation and/or the jurisdiction of the governing law of
any Transaction Finance Document to which it is a party.


 


(b)                                      Without prejudice to paragraph (a), each Obligor party
hereto shall, and shall ensure that each of its Subsidiaries will, obtain,
comply with and do all that is necessary to maintain in full force and effect,
all material Authorisations that are required from time to time in respect of
its business, operations and/or assets.


 


(c)                                       Each Obligor party hereto shall ensure that the
Perfection Requirements are promptly complied with in each case by the earlier
of (i) the date when such Perfection Requirements are required to be
complied with under any or all of the 


 


74

















 


Transaction Finance
Documents) or (B) the date when such Perfection Requirements are required
to be complied with under applicable law or regulations).


 


21.2                 Compliance with laws


 


Each Obligor party hereto shall, and shall
procure that each of its Subsidiaries will, comply in all respects with all
laws to which it may be subject, if failure so to comply would or could
reasonably be expected to have a Material Adverse Effect.


 


21.3                 Negative pledge


 


No Obligor party hereto shall, and each Obligor
party hereto shall procure that none of its Subsidiaries will, create or permit
to subsist any Security and/or Quasi-Security over any of its assets (including
without limitation the MD Patent), except for:


 


(a)                                       any lien arising by operation of law and in the
ordinary course of trading and securing amounts not more than 60 days overdue;


 


(b)                                      any netting or set-off arrangement entered into by any
member of the Group in the ordinary course of its banking arrangements for the
purpose of netting debit and credit balances of members of the Group, provided
that (i) such arrangement does not permit credit balances of any Obligor
to be netted or set off against debit balances of any other member of the Group
or any other person, (ii) such arrangement does not give rise to other
Security over the assets of any Obligor in support of any of the liabilities of
any other member of the Group or any other person and (iii) such
arrangement is waived by the applicable counterparty thereto to the extent
required under any Security Document;


 


(c)                                       any Quasi-Security constituted under:


 


(i)                                the Equipment Leasing Contracts (on the terms
subsisting as at the date of this Agreement and notified to the Facility Agent
prior to the date of this Agreement) over the applicable MD related equipment
(excluding any LHD Unit) that is the subject of the Equipment Leasing Contracts;
and/or


 


(ii)                             the Capital Leasing Contract (on the terms subsisting
as at the date of this Agreement and notified to the Facility Agent prior to
the date of this Agreement) over certain office equipment that is the subject
of the Capital Leasing Contract; and/or


 


(d)                                      any Security created under or evidenced by any
Security Document


 


(paragraphs (a) to (d) being “Permitted Security”).


 


21.4                 Disposals


 


No Obligor party hereto shall, and each Obligor
party hereto shall procure that none of its Subsidiaries will, enter into a
single transaction or a series of transactions (whether 


 


75

















 


related or not) and whether voluntary or
involuntary to sell, lease, transfer or otherwise dispose of any asset, except
for:


 


(a)                                       any sale or disposal of trading stock or cash made by
any member of the Group in the ordinary course of trading of the disposing
entity on arm’s length terms;


 


(b)                                      any disposal of cash which (i) constitutes the
payment of a Permitted Restricted Payment, (ii) constitutes the payment
for Capital Expenditure made on arm’s length terms and in accordance with
Clause 20.4 (Capital Expenditure) or (iii) is
required pursuant to the terms of the Transaction Finance Documents;


 


(c)                                       any sale or disposal of any asset (other than any
Equity Interest, any other share or equity interest and/or any business or any
part thereof) in exchange for other assets comparable or superior as to type,
value or quality on arm’s length terms;


 


(d)                                      any sale or disposal of obsolete or redundant
vehicles, plant and equipment for Cash on arm’s length terms;


 


(e)                                       any disposal constituted by the creation of any
Permitted Security;  and/or


 


(f)                                         any sale, lease, licence, transfer or other disposal
of any asset by a member of the Group on arm’s length commercial terms at any
time during any Financial Year of the Borrower, where:


 


(i)                                the higher of the book value of and consideration
receivable (or, to the extent not in cash, the monetary value thereof) in
respect of such asset does not exceed (or the equivalent thereof in US$ does
not exceed) US$1,000,000; and


 


(ii)                             the higher of the book value of and consideration
receivable (or, to the extent not in cash, the monetary value thereof) in
respect of such asset, when aggregated with the higher (in each case) of the
book value and consideration receivable (or, to the extent not in cash, the
monetary value thereof) in respect of any and all assets the subject of any or
all other sales, leases, licences, transfers and/or disposals by any or all members
of the Group during such Financial Year (excluding any sale, lease, licence,
transfer or other disposal falling within any of paragraphs (a) to (e) above),
does not exceed (or the equivalent thereof in US$ does not exceed)
US$5,000,000; and/or


 


provided that none of the assets the subject of
any or all of paragraphs (a) to (d) and/or (f) above may include
any Equity Interest in any member of the Group or any Obligor.


 


21.5                 Merger


 


No Obligor party hereto shall, and each Obligor
party hereto shall procure that none of its Subsidiaries will, enter into or
effect any amalgamation, demerger, merger or corporate reconstruction other
than any Permitted Reorganisation.


 


76

















 


21.6                 Change of business


 


Each Obligor party hereto shall procure that no
material change is made to the general nature or scope of its business, or of
the Group taken as a whole, from that carried on at the date of this Agreement.


 


21.7                 Environmental Compliance


 


Each Obligor party hereto shall, and shall
ensure that each of its Subsidiaries will:


 


(a)                                       comply with all Environmental Law in all material
respects;


 


(b)                                      obtain, maintain and ensure compliance with any and
all Environmental Permits in all material respects;


 


(c)                                       comply in all material respects with all other
covenants, conditions, restrictions and/or agreements directly or indirectly
concerned with any contamination, pollution or waste or the release or
discharge of any toxic or hazardous substance in connection with any real property
which is or was at any time owned, leased or occupied by any member of the
Group or on which any member of the Group has conducted any activity; and


 


(d)                                      take all reasonable steps in anticipation of know or
expected future changes to or obligations under any Environmental Law or
Environmental Permit, where failure to do so would, or could reasonably be
expected to, have a Material Adverse Effect.


 


21.8                 Environmental Claims


 


Each Obligor party hereto shall inform the
Facility Agent in writing as soon as reasonably practicable upon becoming aware
of the same:


 


(a)                                       if any Environmental Claim has been commenced or (to
the best of such Obligor’s knowledge and belief) is threatened or pending
against any member of the Group; or


 


(b)                                      of any facts or circumstances which would or are
reasonably likely to result in any Environmental Claim being commenced or
threatened against any member of the Group,


 


where such Environmental Claim would be
reasonably likely, if determined against that member of the Group, to have a Material
Adverse Effect.


 


21.9                 Ranking of obligations


 


(a)                                       Each Obligor party hereto shall ensure that at all
times its payment obligations under the Transaction Finance Documents will rank
at least pari passu with the claims of all its
other unsecured and unsubordinated creditors, except for obligations
mandatorily preferred by law applying to companies generally.


 


(b)                                      Without prejudice to paragraph (a), each Obligor party
hereto shall ensure that any and all Transaction Security expressed to be
created by it under any or all of the Security Documents enjoys the priority
which such Transaction Security is


 


77






 










 


expressed to have.


 


21.10            Insurance


 


(a)                                      Each Obligor party hereto shall, and shall procure
that each of its Subsidiaries will, maintain insurance on and in relation to
its business and assets with reputable underwriters or insurance companies
against those risks and to the extent as is usual for companies carrying on the
same or substantially similar business in the location(s) where such
Obligor carries on business and/or where any of its assets are located, except
for:


 


(i)                       any insurance referred to in paragraph 5(i) of
Schedule 2 (Conditions Precedent for initial Utilisation)
which, to the extent that such insurance is available on reasonable commercial
terms, will be maintained with effect from no later than the delivery of the
first Utilisation Request); and


 


(ii)                    any insurance referred to in paragraph (ii) below.


 


(b)                                     The Borrower shall purchase, as soon as reasonably
practicable after the customs clearance (in the PRC) of each of the Upcoming
LHD Units and the Financed LHD Units, physical loss and damage, all risks and
machinery breakdown insurance on such LHD Unit (for full reinstatement value
thereof) (to the extent that such insurance is available on reasonable
commercial terms), and shall thereafter maintain such insurance with respect to
such LHD Unit.  The Borrower shall
promptly upon purchasing, effecting or renewing any such insurance deliver
copies of the applicable insurance documentation to the Facility Agreement
demonstrating such purchase, effect or renewal.


 


21.11            Taxation


 


Each Obligor party hereto shall, and shall
procure that each of its Subsidiaries will, duly and punctually pay and
discharge all Taxes imposed upon it or its assets within the time period
allowed without incurring penalties (save in each case to the extent that (a) payment
of such Taxes is being contested in good faith, (b) it has maintained
adequate reserves for those Taxes and (c) payment can be lawfully
withheld).


 


21.12            Preservation
of existence and assets


 


Each Obligor party hereto shall, and shall
procure that each of its Subsidiaries will:


 


(a)                                       maintain and preserve its corporate existence and not
change its jurisdiction of establishment or incorporation;


 


(b)                                      maintain and preserve in good working order (ordinary
wear and tear excepted) all of the assets necessary to the conduct of its
business from time to time; and


 


(c)                                       ensure that it has the power to own its assets and
carry on its business from time to time being conducted.


 


78

















 


21.13            Maintenance
of books and records, visitation


 


Each Obligor party hereto shall, and shall
procure that each of its Subsidiaries will:


 


(a)                                       maintain books and records (with respect to itself and
its business) in good order;


 


(b)                                      ensure that, if a Default is continuing or any Finance
Party suspects that a Default may be continuing, the representatives, agents
and/or advisers of any or all of the Finance Parties shall be allowed to have
access to the assets, books, records and premises of such Obligor or, as the
case may be, such Subsidiary and to inspect the same during normal business
hours (at the expense of such Obligor) upon reasonable notice; and


 


(c)                                       ensure that its officers shall, upon reasonable
notice, be available to discuss in good faith its affairs with the Finance
Parties and their respective representatives, agents and/or advisers.


 


21.14            Restricted
payments


 


No Obligor party hereto shall, and each Obligor
party hereto shall procure that none of its Subsidiaries will, make, or agree
to make, any Restricted Payment except for:


 


(a)                                      any Restricted Payment constituted by the declaration and/or payment of
dividends in cash at any time by Cayman Co to its shareholders, during any Financial Year of Cayman Co, provided that:


 


(i)                        no
Default is continuing (whether immediately prior to or after such Restricted
Payment) or would result from the making of such declaration and payment; and


 


(ii)                     Cayman Co has available distributable profits for the
declaration and payment of such dividends, and has available cash to fund the
payment of such dividends;


 


(b)                                     any Restricted Payment constituted by the declaration and/or payment of
dividends in cash at any time by Holdco to its shareholders, during any
Financial Year of Holdco, provided that:


 


(iii)                  no
Default is continuing (whether immediately prior to or after such Restricted
Payment) or would result from the making of such declaration and payment; and


 


(iv)                 Holdco
has available distributable profits for the declaration and payment of such
dividends, and has available cash to fund the payment of such dividends;


 


(c)                                      any Restricted Payment constituted by the declaration and/or payment of
dividends in cash at any time by Parentco to Holdco, during any Financial Year
of Parentco, provided that:


 


79

















 


(i)                        no
Default is continuing (whether immediately prior to or after such Restricted
Payment) or would result from the making of such declaration and payment;


 


(ii)                     each
of the Obligors party hereto is in compliance with the financial covenants
under Clause 20.2 (Financial condition)
in respect of the then most recently completed Ratio Period;


 


(iii)                  Parentco
has available distributable profits for the declaration and payment of such
dividends, and has available cash to fund the payment of such dividends; and


 


(iv)                 the
aggregate of any and all such dividends declared and/or paid during any
Financial Year of Parentco does not exceed (or the equivalent thereof in the
applicable currency does not exceed):


 


(1)                    in the case of the Financial Year of Parentco ending in 2010 or 2011)
10% of the shareholders’ equity of the Borrower (as determined in accordance
with the Accounting Principles and set out in the financial statements of the
Borrower relating to its immediately preceding Financial Year delivered under
paragraph (a) of Clause 19.1 (Financial statements)) as at the end of
the immediately preceding Financial Year of the Borrower; or


 


(2)                    (in the case of any financial year of Parentco ending in or after 2012)
15% of the shareholders’ equity of the Borrower (as determined in accordance
with the Accounting Principles and set out in the financial statements of the
Borrower relating to its immediately preceding Financial Year delivered under
paragraph (a) of Clause 19.1 (Financial statements)) as at the end of
the immediately preceding Financial Year of the Borrower;


 


(d)                                     any Restricted Payment constituted by the declaration and/or payment of
any dividends in cash by a member of the Group established within the PRC to
Parentco;


 


(e)                                      (without prejudice to Clause 22.18 (Restricted
Payment)) any payment to any Secured Party under any Transaction
Document;


 


(f)                                        any Restricted Payment constituted by any contribution by Parentco
towards the registered capital of the Borrower, provided that:


 


(i)                        such
contribution is made prior to the date of the first Utilisation Request under
this Agreement; and


 


(ii)                     such
contribution is entirely funded out of the proceeds of any Permitted Sponsor
Subordinated Debt made available by the Sponsor to Parentco; and


 


80

















 


(iii)                  all
of Parentco’s interest in such registered capital is pledged pursuant to the
Equity Pledge over Borrower,


 


(such contribution
being a “Permitted Equity Injection”);


 


(g)                                     any Restricted Payment constituted by the making by the Borrower of any
loan or advance to the Sponsor, provided that (i) such loan or advance is
made entirely out of the proceeds of any Permitted Equity Injection (which
Permitted Equity Injection made at any time on or after 10 December 2009)
and (ii) the aggregate amount of such loan or advance does not exceed the
proceeds of such Permitted Equity Injection so received by the Borrower (such
loan or advance falling within this paragraph (g) being a “Permitted Loan”); and/or


 


(h)                                     any Restricted Payment constituted by the repayment, settlement or
discharge by Parentco of any Permitted Sponsor Subordinated Debt provided that (i) the
aggregate amount of Permitted Loan(s) shall have been (immediately prior
to and in contemplation of such Restricted Payment) reduced by an amount equal
to the amount of such Restricted Payment and (ii) to the extent that such
Restricted Payment is effected through the payment of cash, such reduction in
the amount of Permitted Loan(s) is also effected through the payment of
cash by the Sponsor to the Borrower.


 


(paragraphs (a) to (h) being “Permitted Restricted Payments”).


 


21.15            Loans and
guarantees


 


No Obligor party hereto shall, and each Obligor
party hereto shall procure that none of its Subsidiaries will:


 


(a)                                       make any loan or provide any form of credit or
financial accommodation to, or be a creditor of any Financial Indebtedness
owing by, any other person; or


 


(b)                                      give or issue, or allow to be subsisting, any
guarantee, indemnity or bond to or for the benefit of any person or voluntarily
assume any liability (whether actual or contingent) of any other person,


 


except for:


 


(i)                                          (in the case of making available of any Financial
Indebtedness) any Permitted Trade Credit or any Permitted Loan; or


 


(ii)                                       (in the case of the giving or issuance of any
guarantee or indemnity) any guarantee or indemnity under (A) any
Transaction Finance Document and/or (B) any Transaction Warrant Document
provided that no amendment has been made to any Transaction Warrant Document
(from the form approved by the Arranger prior to the delivery of the first
Utilisation Request hereunder) that has the effect of increasing the aggregate
amount that may become payable or owing under the Transaction Warrant Documents
(except with the prior written consent of the Majority Lenders).


 


81

















 


21.16            Financial
Indebtedness


 


No Obligor party hereto shall, and each Obligor
party hereto shall procure that none of its Subsidiaries will, incur or allow
to remain outstanding any Financial Indebtedness other than:


 


(a)                                      any Financial Indebtedness arising from time to time under any of the
Finance Documents;


 


(b)                                     any Financial Indebtedness of Cayman Co or any member of the Group (incorporated outside the
PRC) arising from time to time under any of the Transaction Warrant Documents,
provided that no amendment has been made to any Transaction Warrant Document
(from the form approved by the Arranger prior to the delivery of the first
Utilisation Request hereunder) that has the effect of increasing the aggregate
amount that may become payable or owing under the Transaction Warrant Documents
(except with the prior written consent of the Majority Lenders);


 


(c)                                      any Financial Indebtedness of the Borrower under any Treasury
Transaction entered into by the Borrower with a Swap Counterparty for the
purpose of hedging the Borrower’s exposure to fluctuations in interest rates
and/or currency exchange rates (including without limitation any such exposure
in connection with the Facility) and not for any speculative purpose;


 


(d)                                     any Financial Indebtedness of the Borrower under any Equipment Leasing
Contract and/or the Capital Leasing Contract (in each case on the terms
subsisting as at the date of this Agreement and notified to the Facility Agent
prior to the date of this Agreement), provided that the aggregate outstanding
principal and/or capital amount of each such Financial Indebtedness is not
increased after the date of this Agreement; and/or


 


(e)                                      any  Financial Indebtedness owed
by Parentco to the Sponsor, provided that:


 


(i)                        such
Financial Indebtedness is constituted by a loan made by Parentco on or after 15
December 2009 but prior to the date of the first Utilisation Request under
this Agreement, and all of the proceeds of such loan are contributed by Parentco
towards the registered capital of the Borrower prior to the date of the first
Utilisation Request under this Agreement; and


 


(ii)                     all
of Parentco’s obligations under and in respect of such Financial Indebtedness
are (at all times with effect from the date of the first Utilisation under this
Agreement) subordinated to the Secured Obligations pursuant to a Subordination
Deed between the Sponsor, Parentco and the Security Agent,


 


(any Financial
Indebtedness falling within this paragraph (e)) being “Permitted Sponsor Subordinated Debt”),


 


(any Financial Indebtedness
falling within any of paragraphs (a) to (e) being “Permitted Financial Indebtedness”).


 


82

















 


21.17            Acquisitions


 


No Obligor party hereto shall, and each Obligor
party hereto shall procure that none of its Subsidiaries will:


 


(a)                                       acquire any shares, securities or interests in any
company, corporation or legal entity or any business or undertaking or any part
thereof (or, in each case, any interest in any of the foregoing);


 


(b)                                      incorporate or establish any company, corporation or
legal entity; or


 


(c)                                       enter into, invest in or acquire (or agree to acquire)
any shares, stocks, securities or other interest in any Joint Venture,


 


(in
each case) except (i) where the prior written consent of the Facility
Agent (acting on the instructions of the Majority Lenders) has been obtained
(for the avoidance of doubt, the Lenders shall consider any request for such
consent in good faith); (ii) (in the case of any acquisition of equity
interest by Parentco in the Borrower) for any Permitted Equity Injection; or (iii) the acquisition of 100% of the issued shares of and
equity interests in Holdco by Cayman Co as an integral part of the Relevant
Permitted Reorganisation.


 


21.18            Arm’s
length basis


 


(a)                                       Except as permitted by paragraph (b) below, no
Obligor party hereto shall, and each Obligor party hereto shall procure that
none of its Subsidiaries will, enter into any transaction with any Related
Person except on no worse than arm’s length terms and for full market value.


 


(b)                                      Paragraph (a) does not restrict any Permitted
Restricted Payment.


 


21.19            Share
capital


 


(a)                                       Each Obligor party hereto shall procure that no member
of the Group shall make any Equity Issuance, except for:


 


(i)                        the
issuance of any shares by Cayman Co to any person (including without limitation any of
the Existing Shareholders), where:


 


(1)                    no Default or Exit Event would arise as a result of such issuance;


 


(2)                    all of such shares are paid for in full in cash upon issue and by their
terms are not redeemable;


 


(3)                    not less than 30% of the total issued share capital of Cayman Co (on a fully diluted
basis but excluding any shares to be issued by Cayman Co in any share offering as part of a
Qualifying IPO) are subject to Transaction Security immediately prior to and
after such issuance; and/or


 


(4)                    the provisions of Clause 8.4 (Mandatory prepayment upon Equity Issuance) are complied with in respect of such issuance;


 


(ii)                     the issuance of any shares by Cayman Co to the Existing Shareholders as an integral part of the
Relevant Permitted Reorganisation;  and


 


83

















 


(iii)                  any Permitted Equity Injection.


 


(b)                                      Each Obligor party hereto shall procure that no other
member of the Group shall at any time enter into or be party to any agreement
or arrangement (other than any Finance Document) that would restrict its
ability or the ability of any Subsidiary of any of the Obligors to declare or
pay dividends or distributions to its shareholders or the holders of its
registered capital.


 


(c)                                       No Obligor party hereto shall, and each Obligor shall
ensure that none of its Subsidiaries will, without prior written consent of the
Facility Agent (acting on the instructions of the Majority Lenders), amend,
vary or supplement in any material respect, or waive any of its material rights
and/or remedies under, or terminate, rescind, supersede or cancel, any of the
constitutional documents (including without limitation articles of association)
of any member of the Group, or agree to any of the foregoing, except for:


 


(i)                        an
amendment to the constitutional documents of Cayman Co which amendment (1) is necessary for the purpose
of a Qualifying IPO and (2) could not reasonably be expected to have an adverse
effect on the interests of any or all of the Secured Parties under any or all
of the Transaction Documents; and


 


(ii)                     an
amendment to the constitutional documents of the Borrower which amendment (1) is
necessary for (and solely for the purpose of reflecting) an increase in the
registered capital of the Borrower that is contemplated or permitted under this
Agreement and (2) could not reasonably be expected to have an adverse
effect on the interests of any or all of the Secured Parties under any or all
of the Transaction Documents.


 


21.20            Material
Contracts


 


(a)                                       Each Obligor party hereto shall, and shall procure
that any member of the Group that is party to any Material Contract shall:


 


(i)                                comply in all material respects with the provisions of the Material
Contracts to which it is a party;


 


(ii)                             take all reasonable and practical steps to preserve and enforce its
rights and remedies under or in connection with, and pursue any claims under,
any or all of the Material Contracts;


 


(iii)                          inform the Facility Agent (promptly upon becoming aware of the same) of
any default under or breach of or non-compliance with the terms of any Material
Contract by any party thereto (including without limitation any breach of
warranty thereunder), which default or breach could reasonably be expected to
have a Material Adverse Effect; and


 


(iv)                         not,
without the prior written consent of the Facility Agent:


 


(A)                   make or agree to any amendment or variation of or supplement to 


 


84

















 


any provision of any Material Contract (other than any LHD Contract or
MD Contract which is not a Material Sales Contract) except (1) (in respect
of any Material Sales Contract) as permitted under paragraphs (b), (c) and
(d); (2) (in respect of the LHD Exclusivity Agreement only) as
contemplated by paragraph (b)(i) of Clause 21.21 (Intellectual Property) or (3) (in
respect of any other Material Contract) any amendment or variation which is not
materially adverse to the interest of any member of the Group and does not
conflict with any provision of any Transaction Finance Document;


 


(B)                     terminate, rescind, supersede, cancel or agree to terminate, rescind,
supersede or cancel any Material Contract (other than any LHD Contract or MD
Contract which is not a Material Sales Contract) except (1) (in respect of
any Material Sales Contract) any termination of any LHD Contract or MD Contract
which is immediately upon such termination replaced by an LHD Contract (as the
case may be) MD Contract as permitted under paragraphs (b), (c) and (d) or
(2) any termination of any Material Contract falling within paragraphs
(f), (i), (j), (k) or (n) of the definition thereof which is not
materially adverse to the interest of any member of the Group and does not
conflict with any provision of any Transaction Finance Document;


 


(C)                     grant or agree to any waiver of any of its material rights or remedies
under or in connection with any Material Contract;


 


(D)                     give any consent (which could reasonably be expected
to be materially adverse to the interests of any member of the Group or any
Transaction Finance Party) under any Material Contract; or


 


(E)                      assign, transfer, novate or otherwise dispose of any
or all of its rights and/or obligations under any Material Contract,
except for any assignment or disposal constituted by the creation of
Transaction Security over such rights.


 


(b)                                      At any time after the
Initial Utilisation Date but prior to the LHD Relevant Time, any of the Current
LHD Contracts and the Upcoming LHD Contracts (“Pre-change LHD Contract”) may be amended or replaced by
another LHD Contract provided that:


 


(i)                       such LHD Contract so
amended or such replacement LHD Contract (as the case may be) shall have no
less favourable terms than such Pre-change LHD Contract (prior to such amendment
or replacement, and without giving effect to any expiry, lapse or termination
of such Pre-change LHD Contract) in terms of unit price per metre drilled;


 


(ii)                    the tenor of such LHD
Contract so amended or such replacement LHD Contract (as the case may be) shall
have a tenor not shorter than such 


 


85

















 


Pre-change LHD Contract (prior to such amendment or replacement, and
without giving effect to any expiry, lapse or termination of such Pre-change
LHD Contract);


 


(iii)                 the provisions of Clause 21.30 (LHD customers) are complied with (after
such amendment or replacement); and


 


(iv)                such amendment or replacement is not materially
adverse to the interests of any member of the Group and does not conflict with
any provision of any Transaction Finance Document.


 


(c)                                       At any time after the LHD
Relevant Time, any of the LHD Contracts which is a Material Sales Contract (“Subject LHD Contract”) may be amended or
replaced provided that the following conditions are met and shall be maintained
after such amendment or replacement:


 


(i)                       the requirements of
paragraph (h) are complied with;


 


(ii)                    the provisions of Clause 21.30 (LHD customers) are complied with (after
such amendment or replacement); and


 


(iii)                 such amendment or replacement is not materially
adverse to the interests of any member of the Group and does not conflict with
any provision of any Transaction Finance Document.


 


(d)                                      At any time after the
Initial Utilisation Date, any of the MD Contracts which is a Material Sales
Contract (“Subject MD Contract”)
may be amended or replaced by another MD Contract provided that:


 


(i)                       the tenor of such Subject
MD Contract so amended or the replacement MD Contract which replaces such
Subject MD Contract (as the case may be) shall have a tenor not shorter than 3
years; and


 


(ii)                    such amendment or replacement is not materially
adverse to the interests of any member of the Group and does not conflict with
any provision of any Transaction Finance Document.


 


(e)                                       Nothing in paragraphs (b), (c) and (d) permits any Obligor party
hereto or any member of the Group to terminate, rescind, supersede, cancel or
agree to terminate, rescind, supersede or cancel any LHD Contract or MD
Contract (which is a Material Sales Contract) unless such LHD Contract or MD
Contract (as the case may be) is immediately replaced by an LHD Contract or(as
the case may be) MD Contract that is permitted under paragraphs (b), (c) and
(d).


 


(f)                                         Upon:


 


(i)                               replacement of any Current LHD Contract, any Upcoming LHD Contract or
any Financed LHD Contract by any LHD Contract(s) (the “Replacement LHD Contract(s)”) pursuant to
paragraphs (b) or (c), any reference in any Finance Document to such
Current LHD Contract, Upcoming LHD Contract or Financed LHD Contract (as the
case may 


 


86

















 


be)
shall be deemed to include a reference to such Replacement LHD Contract; and


 


(ii)                            replacement of any Current MD Contract by any MD Contract(s) (the “Replacement MD Contract(s)”) pursuant to
paragraph (d), any reference in any Finance Document to such Current MD
Contract shall be deemed to include a reference to such Replacement MD
Contract.


 


(g)                                      Without prejudice to the foregoing, the Borrower
shall:


 


(i)                               upon entering into any LHD Contract or MD Contract or any amendment,
modification or supplement thereof or thereto, or granting any waiver of any
provision of any LHD Contract or MD Contract, promptly (and in any event within
3 Business Days) notify the Facility Agent of the same together with copies and
details of such LHD Contract, MD Contract, amendment, modification, supplement
or waiver; and


 


(ii)                            promptly (and in any event within 3 Business Days) notify the Facility
Agent of any termination or expiry of any LHD Contract or MD Contract including
notification as to whether such LHD Contract or MD Contract is being replaced
by Replacement LHD Contract(s) or Replacement MD Contract(s) (as the
case may be).


 


(h)                                      The Borrower shall ensure
that, at all times with effect from the LHD Relevant Time, there are at least 10 subsisting LHD Contracts (providing
for the use and deployment of at least 10 LHD Units, including the Current LHD
Units, the Upcoming LHD Units and the Financed LHD Units), and:


 


(i)                       at least 5 of such LHD
Contracts (providing for the use and deployment of at least 5 LHD Units) comply
at all times with the LHD Contract Requirements; and


 


(ii)                    at least 2 of such LHD
Contracts (providing for the use and deployment of at least 2 LHD Units) (other
than the LHD Contracts referred to in paragraph (h)(i) above) comply at
all times with the following:


 


(A)                such LHD Contracts (taken
as a whole) are no less favourable to the Borrower than the terms of the
Current LHD Contracts (as subsisting as the date of the first Utilisation
Request) in terms of unit price per metre drilled; and


 


(B)                  the term of each such LHD Contract is not shorter
than the term of the Current LHD Contract (as subsisting as the date of the
first Utilisation Request) with the longer tenor (ignoring for such purpose any
early termination of the term of any Current LHD Contract).


 


(i)                                          The Borrower shall ensure that:


 


(i)                       at all times on or after
the delivery of the first Utilisation Request under


 


87














 


this Agreement, the subsisting Current LHD Contracts and Upcoming LHD
Contracts (including without limitation any Replacement LHD Contracts relating
thereto) provide for the use and deployment of at least 4 LHD Units (comprising
the Existing LHD Units and the Upcoming LHD Units);


 


(ii)                    at all times on or after the time when the third
instalment (or, if earlier, the final instalment) of the purchase consideration
payable by the Borrower under the Financed LHD Acquisition Agreement is paid, the subsisting
Financed LHD Contracts (including without limitation any Replacement LHD
Contracts relating thereto) provide for the use or deployment of at least 6
Financed LHD Units; and


 


(iii)                 at all times on or after
the delivery of the first Utilisation Request under this Agreement, there are
at least 3 subsisting Current MD Contracts (including any subsisting
Replacement MD Contracts relating thereto).


 


(j)                                          Without prejudice to the foregoing, the Borrower shall
ensure that none of the LHD Contracts or MD Contracts shall contain any
restriction against the creation of any Transaction Security over rights and
remedies under and/or in respect of such LHD Contract or MD Contract (including
without limitation any receivables thereunder).


 


(k)                                       The Borrower shall ensure
that the MD Supply Contract shall be on terms that the counterparty of the
Borrower under the MD Supply Contract may not supply MD solutions (or any other
products or services using or involving the MD Patent) to any person other than
the Borrower).


 


21.21            Intellectual
Property


 


Each Obligor party hereto shall (and each
Obligor party hereto shall procure that each of its Subsidiaries will):


 


(a)                                       preserve and maintain the subsistence and validity of
any and all Intellectual Property that is material for its business and/or
activities (including, without limitation, with respect to any Intellectual
Property that is not owned by it, ensuring that it has valid licences of such
Intellectual Property);


 


(b)                                      without prejudice to paragraph (a):


 


(i)                               by no later than the delivery of the first Utilisation Request, the
Borrower shall revise the LHD Exclusivity Agreement in form and substance
satisfactory to the Lenders; and


 


(ii)                            not assign, transfer, licence or create or to subsist any Security
and/or Quasi-Security over or otherwise dispose of the MD Patent (other than
any disposal constituted by the licensing arrangements contemplated under the
MD Licensing Agreement); and


 


(c)                                       in respect of any Intellectual Property that is owned
by any member of the 


 


88

















 


Group or in which any
member of the Group is beneficially interested:


 


(i)                               use reasonable endeavours to prevent any infringement in any material
respect of such Intellectual Property;


 


(ii)                            make registrations and pay all registration fees and taxes necessary to
maintain such Intellectual Property in full force and effect and record its
interest in such Intellectual Property;


 


(iii)                         not
use or permit such Intellectual Property to be used in a way or take any step
or omit to take any step in respect of such Intellectual Property which may
materially and adversely affect the existence or value of such Intellectual
Property or imperil the right of any member of the Group to use such
Intellectual Property; and


 


(iv)                        not
discontinue the use of such Intellectual Property.


 


21.22            Pensions


 


Each Obligor party hereto shall ensure that all
pension schemes operated by or maintained for the benefit of any or all members
of the Group and/or any or all of their respective employees are fully funded
based on reasonable actuarial assumptions and recommendations and are operated
and maintained in accordance with the requirements of applicable laws.


 


21.23            DSRA


 


The Borrower shall ensure that:


 


(a)                                       with effect from the date falling 3 Business Days
after the Initial Utilisation Date to the last day of the first Interest Period
for the first Loan, the aggregate amount standing to the credit of the Onshore
USD Project Account shall not at any time be less than the DSRA Amount at such
time (provided that such amount may be withdrawn on the last day of such first
Interest Period in accordance with Schedule 6 (Bank
Accounts) for application towards payment of interest that is due
and payable under the Finance Documents on the last day of such first Interest
Period); and


 


(b)                                      with effect from the last day of the first Interest
Period for the first Loan, the aggregate amount standing to the credit of the
DSRA shall not at any time be less than the RMB equivalent of the DSRA Amount
at such time (calculated using the DSRA Determination Exchange Rate as at the
latest date of determination by the Facility Agent pursuant to paragraph (b) or
(c) of Clause 9.4 (Notification of
rates of interest and DSRA Amount)).


 


21.24            Bank
accounts


 


Each
Obligor party hereto shall comply with, and shall ensure that each account of
any member of the Group shall be operated in accordance with, Schedule 6 (Bank Accounts).


 


89

















 


21.25            Holding
company


 


(a)                                       Each Obligor party hereto shall ensure that none of Cayman Co,
Holdco or Parentco shall trade, carry on any business, own any assets or incur
any indebtedness, liabilities or commitments (whether actual or contingent)
except for:


 


(i)                                the provision of administrative services (excluding treasury services)
to members of the Group (in which it holds any shares or interests) of a type
customarily provided by a holding company to its Subsidiaries;


 


(ii)                             ownership of shares and/or equity interests in members of the Group
and/or ownership of Cash;


 


(iii)                          the incurrence of liabilities that arise in the ordinary course of
acting as a Holding Company of shares in other members of the Group;


 


(iv)                         the
incurrence of liabilities under the Transaction Finance Documents to which it
is a party;


 


(v)                            the incurrence of liabilities under the Transaction Warrant Documents to
which it is a party, provided that no amendment has been made to any
Transaction Warrant Document (from the form approved by the Arranger prior to
the delivery of the first Utilisation Request hereunder) that has the effect of
increasing the aggregate amount that may become payable or owing under the
Transaction Warrant Documents (except with the prior written consent of the
Majority Lenders); and/or


 


(vi)                         (in
the case of Parentco) the incurrence of any Permitted Sponsor Subordinated
Debt.


 


(b)                                      Without prejudice paragraph (a):


 


(i)                               the Borrower shall not hold any Equity Interest in any person;


 


(ii)                             Parentco shall not  hold or own
any Equity Interest in any person other than equity interests in the Borrower,
and shall not hold or own any assets other than assets subject to Transaction
Security;


 


(iii)                          Holdco shall not hold or own any Equity Interest in
any person directly other than shares in Parentco; and


 


(iv)                         Cayman Co shall not hold or own
any Equity Interest in any person directly other than shares in Holdco,


 


except as a result of
a Permitted Reorganisation.


 


21.26            No
restrictions


 


Each Obligor party hereto shall ensure that
there shall not be any restriction in any document to which it is party  or any document or obligation binding on it
or any of its assets, on its performance of its obligations under the Finance
Documents.


 


90

















 


21.27            Budgets


 


(a)                                       No later than 10 Business Days prior to the
commencement of each successive half yearly period following the Initial Budget
Period, the Borrower shall submit to the Facility Agent (in sufficient copies
for the Finance Parties, if the Facility Agent so requires) for approval:


 


(i)                                a draft schedule showing Operating Expenditure of the Borrower for each
month during such half yearly period.  Such draft schedule shall be in such form and
contain such information as equivalent to that of the Approved Opex Budget for the Initial Budget Period.  Such draft schedule, if approved by the
Facility Agent (acting on the instructions of the Majority Lenders), shall
constitute the Approved Opex Budget for such first-mentioned half yearly period; and


 


(ii)                             a draft schedule showing Capital Expenditure (other than Project Capital
Expenditure) of the Borrower for each month during such half yearly
period.  Such draft schedule shall be in
such form and contain such information as equivalent to that of the Approved Capex Budget for the Initial
Budget Period.  Such draft schedule, if
approved by the Facility Agent (acting on the instructions of the Majority
Lenders), shall constitute the Approved Capex Budget for such first-mentioned half
yearly period.


 


(b)                                      Any amendment of any Approved Opex Budget, the
Approved Capex Budget or the Approved Project Capex Schedule shall require the
prior written consent of the Facility Agent (acting on the instructions of the
Majority Lenders).


 


21.28            Conditions
subsequent


 


Each Obligor party hereto shall ensure that the
requirements set out in Schedule 13 (Conditions subsequent)
are complied with and that, on or prior to the expiry of the prescribed time
limit set out in each paragraph under Schedule 13 (Conditions
subsequent), the documents and evidence set out in each paragraph
shall have been delivered to the Facility Agent (or in the case of any document
or evidence set out in paragraphs 2, 3, 4, 5 and 6 of Schedule 13 (Conditions subsequent), the Arranger), each in form and
substance satisfactory to the Facility Agent (or the Arranger, as the case may
be), and each action or step specified in that paragraph shall have been taken
and completed.


 


21.29            LHD
Vendor


 


The Borrower shall not purchase or agree to
purchase any LHD Units other than from the LHD Vendor, unless with the prior
written consent of the Facility Agent (acting on the instructions of the
Majority Lenders).


 


21.30            LHD
customers


 


Upon and at all times after the signing of the
memorandums of understanding in respect of the 6 Financed LHD Contracts
referred to in paragraph 5(e) of Schedule 2 (Conditions 


 


91

















 


Precedent for initial
Utilisation), the Borrower shall
ensure that there are subsisting LHD Contracts pursuant to which the Borrower
provides LHD services to at least 5 different customers each of which customers
complies with the following:


 


(a)                                       such customer is not a Subsidiary or Holding Company
of any other such customer; and


 


(b)                                      management decisions of such customer are made
independently of management decisions of any other such customer.


 


22.                        EVENTS
OF DEFAULT


 


Each of the events or circumstances set out in
Clause 22.1 (Non-payment) to
Clause 22.22 (Material adverse change)
is an Event of Default.


 


22.1                  Non-payment


 


An Obligor does not pay on the due date any
amount pursuant to a Transaction Document, at the place at and in the currency
in which it is expressed to be payable unless:


 


(a)                                       such failure to pay is caused by administrative or
technical error; and


 


(b)                                      payment is made within 7 Business Days of its due
date.


 


22.2                  Specific
covenants


 


Any requirement or condition set out in Clause
20 (Financial covenants), Clause
21.23 (DSRA) or Clause 21.28 (Conditions subsequent) is not satisfied at
any time.


 


22.3                  Other
obligations


 


(a)                                       An Obligor does not comply with any provision of the
Transaction Documents (other than those referred to in Clause 22.1 (Non-payment) and Clause 22.2 (Specific covenants)).


 


(b)                                      No Event of Default under paragraph (a) above
will occur in respect of any failure by any Obligor to comply with any
Transaction Document, if such failure to comply is capable of remedy and is
remedied within 20 Business Days of the earlier of (i) the Facility Agent
giving notice to the Borrower or such Obligor or (ii) the Borrower or such
Obligor becoming aware of such failure to comply.


 


22.4                  Misrepresentation


 


Any representation or statement made or deemed
to be made by any Obligor in any or all of the Transaction Documents, or any
other document delivered by or on behalf of any Obligor under or in connection
with any Transaction Document, is or proves to have been incorrect or
misleading in any material respect when made or deemed to be made.


 


92

















 


22.5                  Cross
default


 


Any:


 


(a)                                       Financial Indebtedness of any member of the Group is
not paid when due nor within any originally applicable grace period;


 


(b)                                      Financial Indebtedness of any member of the Group 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, and after the
expiry of any originally applicable grace period);


 


(c)                                       commitment for any Financial Indebtedness of any
member of the Group is cancelled or suspended by a creditor of any member of
the Group as a result of an event of default (however described, and after the
expiry of any originally applicable grace period); or


 


(d)                                      creditor of any member of the Group becomes entitled
to declare any Financial Indebtedness of any member of the Group due and
payable prior to its specified maturity as a result of an event of default
(however described),


 


provided that no Event of Default will occur
under this Clause 22.5 if the aggregate amount of any and all Financial
Indebtedness and/or commitment for Financial Indebtedness of any or all members
of the Group falling within paragraphs (a) to (d) above is less than
(or the equivalent thereof in US$ is less than) US$1,000,000 (such aggregate
being the aggregate for any and all members of the Group).


 


22.6                  Insolvency


 


(a)                                       Any member of the Group is unable or admits inability
to pay its debts as they fall due, suspends 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 fair value of the assets of any member of the
Group is less than its liabilities (taking into account contingent and
prospective liabilities); or


 


(c)                                       a moratorium is declared in respect of any
indebtedness of any member of the Group.


 


22.7                  Insolvency
proceedings


 


Any corporate action, legal proceedings or
other procedure or step is taken in relation to:


 


(a)                                       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 member of
the Group;


 


(b)                                      a composition, compromise, assignment or arrangement
with any creditor of any member of the Group;


 


(c)                                       the appointment of a liquidator, receiver, administrative
receiver, administrator, compulsory or interim manager or other similar officer
in respect of any member of the Group or any of the assets of any member of the
Group; or


 


93

















 


(d)                                      enforcement of any Security over any assets of any
member of the Group,


 


or any analogous procedure or step is taken in
any jurisdiction.


 


22.8                  Creditors’
process


 


Any expropriation, attachment, sequestration,
distress or execution affects any asset or assets of any member of the Group
having an aggregate book value of at least US$1,000,000 (or its equivalent in
any other currency or currencies) (such aggregate being the aggregate for any
and all members of the Group).


 


22.9                  Failure
to comply with final judgments


 


Any member of the Group fails to comply with or
pay any sum due from it under any final judgment or order made or given by any
court of competent jurisdiction, except that in the case of a failure to pay,
such failure shall not constitute an Event of Default under this Clause 22.9 if
the aggregate amount failed to be paid by any or all members of the Group under
any one or more such judgments or orders is less than (or the equivalent
thereof in US$ is less than) US$1,000,000.


 


22.10            Unlawfulness
or ineffective security


 


(a)                                       It is or becomes unlawful for an Obligor to perform
any of its obligations under the Transaction Documents or any of them;


 


(b)                                      any Transaction Security created or expressed to be
created or evidenced by any or all of the Security Documents is not or ceases
to be effective, or does not or ceases to have the priority which it is
expressed to have;


 


(c)                                       at any time after completion of the Relevant Permitted Reorganisation, the Equity Interests in Holdco subject to Transaction Security do not or cease to
constitute 100% of the Equity Interests in the Holdco;


 


(d)                                      the Equity Interests in Parentco subject to
Transaction Security do not or cease to constitute 100% of the Equity Interests
in Parentco;


 


(e)                                       the Equity Interests in the Borrower subject to
Transaction Security do not or cease to constitute 100% of the Equity Interests
in the Borrower; or


 


(f)                                         the shares and equity interests in Cayman Co subject to
Transaction Security do not or cease to constitute at least 30% of the shares
and equity interests in Cayman Co (on a fully diluted basis but excluding any shares to
be issued by Cayman Co in any share offering as part of a Qualifying IPO).


 


22.11            Repudiation,
unenforceability and amendments etc


 


(a)                                       An Obligor repudiates a Finance Document or Transaction
Warrant Document or evidences an intention to repudiate a Finance Document or
Transaction Warrant Document or any of the Transaction Security or evidences an
intention to repudiate or rescind or any Finance Document or Transaction
Warrant Document or any Transaction Security;


 


94

















 


(b)                                      any Finance Document or Transaction Warrant Document
ceases to be in full force and effect or is terminated, rescinded, superseded
or cancelled, or becomes avoidable at the instance of any person (except, in
each case, with the prior written consent of the Facility Agent), or any
obligation expressed to be assumed by any Obligor under any Finance Document or
any Transaction Warrant Document to which it is a party is not or ceases to be
legal, valid, binding or enforceable; or


 


(c)                                       any provision of any of the constitutional documents
of any member of the Group or any Transaction Warrant Document is amended,
varied or supplemented in any material respect except (i) with the prior
written consent of the Facility Agent and/or (ii) (in the case of any
Transaction Warrant Document) amendments that are not materially adverse to the
interests of the Lenders and that do not increase any amount payable
thereunder.


 


22.12            Sponsor
Non-compete Undertaking


 


The Sponsor does not or fails to comply with
any provision of the Sponsor Non-compete Undertaking.


 


22.13            Governmental
intervention or debt moratorium or control


 


(a)                                       By or under the authority of any government or any
authority, department, agency or instrumentality thereof:


 


(i)                               the management of any member of the Group is wholly or partially
displaced or the authority of any member of the Group in the conduct of its
business is wholly or partially curtailed; or


 


(ii)                            all or a majority of the issued shares or registered capital of or
equity interest in any member of the Group or the whole or any part (the book
value of which is 10 per cent. or more of the book value of the whole) of the
revenues or assets of any member of the Group is seized, nationalised,
expropriated or compulsorily acquired;


 


(b)                                      any moratorium or similar suspension of payment is
declared in respect of any indebtedness of the PRC or any governmental
authority, agency, department, court, central bank, ministry or instrumentality
thereof; or


 


(c)                                       any law or regulation is imposed, enacted or put in
effect, or any action is taken by any government (or any department, authority
or instrumentality thereof) in the PRC having jurisdiction over the Borrower,
in each case after the date of this Agreement which imposes any further foreign
exchange control or other restriction which would, or would reasonably be
expected to, have the effect of prohibiting, preventing or materially delaying
the remittance of any amount by the Borrower to any Transaction Finance Party
in US dollars.


 


22.14            Cessation
of business, shut-down or abandonment


 


(a)                                       Any member of the Group ceases to carry on or suspends
all or a substantial part 


 


95

















 


of its business,
provided that (in the case of suspension) such suspension shall not constitute
an Event of Default under this paragraph (a) if such suspension (i) is
solely caused by events beyond the control of members of the Group, (ii) is
for a period of not longer than 30 days (in aggregate) and (iii) could not
reasonably be expected to have a Material Adverse Effect;


 


(b)                                      any member of the Group abandons the operation of its
assets, business or facilities (or a substantial part thereof) for a period of
not less than 30 days;


 


(c)                                       the operation of the assets, business or facilities of
any member of the Group (or a substantial part thereof) is shut down or
substantially disrupted for a period of not less than 30 days;


 


(d)                                      any total loss or destruction occurs with respect to
the assets, business or facilities of any member of the Group (or a substantial
part thereof);


 


(e)                                       any material Authorisation required with respect to
any of the assets, business or operations of any member of the Group is not
obtained (when required) or is revoked or cease to be in full force and effect
(unless simultaneously replaced by an equivalent Authorisation); or


 


(f)                                         any dispute occurs or arises in relation to any of
such Authorisations which is not resolved within a period of 30 days and which
could reasonably be expected to have a Material Adverse Effect.


 


22.15            Ownership


 


At any time and except as a result of any
Permitted Reorganisation or the Relevant Permitted Reorganisation:


 


(a)                                       on or after the date of this Agreement, Parentco does
not or ceases to directly legally and beneficially own 100% of the registered
capital (of each class) of and equity interests in the Borrower, free from
Security (other than Transaction Security);


 


(b)                                      on or after the date of this Agreement, Holdco does
not or ceases to directly legally and beneficially own 100% of the shares (of
each class) of and equity interests in Parentco, free from Security (other than
Transaction Security);


 


(c)                                       on or after the date of this Agreement but prior to
the completion of the Relevant Permitted Reorganisation, Premium Sino does not
or ceases to
legally and beneficially own directly 90% of the shares (of each class) of and
equity interests in Holdco, free from Security (other than Transaction
Security, if any) or does not or ceases to have management control over Holdco;


 


(d)                                      upon or after the completion of the Relevant Permitted Reorganisation, Cayman Co does not or ceases to directly legally and
beneficially own 100% of the shares (of each class) of and equity interests in Holdco, free from Security (other
than Transaction Security);


 


(e)                                       upon or after the completion of the Relevant Permitted
Reorganisation but prior 


 


96

















 


to the occurrence of
a Qualifying IPO, Premium Sino does not or cease to legally and beneficially
own directly 90% of the shares (of each class) of and equity interests in Cayman Co, free from Security
(other than Transaction Security, if any) or does not or ceases to have
management control over Cayman Co; or


 


(f)                                         on or after the date of this Agreement, the Sponsor
does not or ceases to legally and beneficially own, directly or indirectly,
100% of the shares (of each class) of and equity interests in Premium Sino,
free from Security (other than Transaction Security, if any).


 


22.16            Deficiency
in cashflow


 


In respect of any Calculation Period, the
aggregate cashflow of the Borrower deposited into the Onshore Controlled
Account during such Calculation Period is less than 60% of the aggregate amount
of the projected cash inflow of the Borrower for such Calculation Period as set
out in the Base Case Model.


 


22.17            LHD
Vendor Joint Account


 


At any time on or after the establishment of
the LHD Vendor Joint Account, the Borrower is not or ceases to be one of the
signatories to the LHD Vendor Joint Account whose consent and written
instructions are required to authorise any withdrawal from the LHD Vendor Joint
Account.


 


22.18            Restricted
Payment


 


(a)                                       any member of the Group makes any Restricted Payment,
other than:


 


(i)                               any Permitted Restricted Payment falling within paragraph (a), (b) or (c) of
Clause 21.14 (Restricted payments);
or


 


(ii)                            any payment to any Transaction Finance Party under any Transaction
Finance Document; or


 


(b)                                      any Transaction Warrant Holder (or any person acting
on its behalf) demands payment from any member of the Group pursuant to any
guarantee given by such member of the Group in respect of the obligations of
Premium Sino under any Transaction Warrant Document.


 


22.19            Material
litigation


 


Any investigation, litigation, arbitration or
administrative proceedings of or before any court, arbitral body or agency
which would be reasonably likely to be adversely determined against a member of
the Group and which, if adversely determined against any member of the Group,
could reasonably be expected to have a Material Adverse Effect have been
commenced, or are pending, against, any member of the Group.


 


22.20            Audit
qualification


 


The auditors of the Borrower qualify any of the
annual financial statements of the Borrower in any material manner.


 


97














 


22.21            Tax
residence


 


Premium Sino is deemed to be PRC resident for
PRC tax purposes.


 


22.22            Material
adverse change


 


Any event or circumstance occurs which has a
Material Adverse Effect.


 


22.23            Acceleration


 


Upon or at any time after the occurrence of an Event
of Default which is continuing, the Facility Agent may, and shall if so
directed by the Majority Lenders, by notice to the Borrower:


 


(a)                                       cancel the Total Commitments whereupon the Total
Commitments and each of the Commitments of each of the Lenders for each Tranche
shall immediately be cancelled and reduced to zero;


 


(b)                                      declare that all or part of the Loans, 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 any part of the Loans be payable
on demand, whereupon it shall immediately become payable (together with accrued
interest and all other amounts accrued or outstanding under the Finance
Documents) on demand by the Facility Agent acting on the instructions of the
Majority Lenders; and/or


 


(d)                                      exercise or direct the Security Agent to exercise any
or all of its rights, remedies, powers or discretions under the Finance
Documents.


 


98

















 


SECTION 9


CHANGES TO
PARTIES


 


23.                        CHANGES
TO THE LENDERS


 


23.1                  Assignments
and transfers by the Lenders


 


Subject to this Clause 23, a Lender (the “Existing Lender”) may:


 


(a)                                       assign any of its right under this Agreement; or


 


(b)                                      transfer by novation any of its rights and/or
obligations under this Agreement,


 


to another bank or financial institution or to
a trust, fund or other entity which is regularly engaged in or established for
the purpose of making, purchasing or investing in loans, securities or other
financial assets (the “New Lender”).


 


23.2                  Conditions
of assignment or transfer


 


(a)                                       The consent of the Borrower is hereby given (and no
further consent of the Borrower shall be required) for any assignment or
transfer by an Existing Lender of any of its rights and/or obligations under
this Agreement. The Borrower shall do any act and/or execute any document as
the Facility Agent may reasonably require to effect such assignment or transfer
under PRC law and record (to the extent required under PRC law) such assignment
or transfer in all relevant Authorisations regarding the Facility and the
Transaction Security and/or with all applicable authorities.


 


(b)                                      An assignment by an Existing Lender to a New Lender will
only be effective upon receipt by the Facility Agent of written confirmation
from the New Lender (in form and substance satisfactory to the Facility Agent)
that the New Lender will assume the same obligations to the other Finance
Parties as it would have been under if it was originally party hereto as a
Lender.  The Existing Lender shall give
the Borrower notice of any assignment of any of its rights under this Agreement
upon or after such assignment.


 


(c)                                       A transfer by the Existing Lender to the New Lender
will only be effective if the procedure set out in Clause 23.5 (Procedure for transfer) is complied with
in respect of such transfer.


 


(d)                                      The Existing Lender shall, simultaneously with the
assignment or transfer by it of rights and/or obligations under this Agreement
to the New Lender, assign to the New Lender a proportionate share of the rights
held by it (in its capacity as Lender) under or in connection with each of the
other Finance Documents.


 


(e)                                       Any assignment or transfer by the Existing Lender of
any or all of its rights and/or obligations under this Agreement to the New
Lender shall be made on the basis that such Existing Lender:


 


(i)                               assigns or transfers the same proportionate share of its participation
in each Loan under a Tranche to such New Lender; and


 


99

















 


(ii)                            transfers the same proportionate share (which proportionate share shall,
for the avoidance of doubt, be the same as the proportionate share referred to
in paragraph (e)(i) above) of its Commitment (if any) for such Tranche to
such New Lender.


 


(f)                                         Any assignment or transfer by the Existing Lender of
any or all of its rights and/or obligations under this Agreement to the New
Lender shall not be effective unless the New Lender agrees that it shall be
liable to each of the Transaction Agents under Clause 25.18 (Lenders’ indemnity to the Transaction Agents)
for any cost, loss or liability incurred by such Transaction Agent in acting as
such under the Finance Documents whether prior to (to the extent that such
Transaction Agent has not been indemnified by such Existing Lender), on or
after the Transfer Date.


 


(g)                                      A Lender shall not be obliged to assign or transfer
any or all of its rights and/or obligations as a Transaction Warrant Holder or
a Swap Counterparty or transfer any of its Transaction Warrants together with
or in connection with any assignment or transfer of any or all of its rights
and/or obligations in its capacity as Lender under this Agreement or vice
versa.


 


23.3                  Assignment
or transfer fee


 


The New Lender shall, on the date upon which
the relevant assignment or transfer by the Existing Lender to the New Lender
takes effect, pay to the Facility Agent (for its own account) a fee of
US$1,500.


 


23.4                  Limitation
of responsibility of Existing Lenders


 


(a)                                       Unless expressly agreed to the contrary, neither the
Existing Lender nor any other Finance Party makes any representation or
warranty or assumes any responsibility to the New Lender for:


 


(i)                               the legality, validity, effectiveness, adequacy or enforceability of the
Transaction Documents or any other documents;


 


(ii)                            the financial condition of any Obligor or any Affiliate thereof;


 


(iii)                         the
performance and observance by any Obligor of its obligations under any of the
Transaction Documents or any other documents; or


 


(iv)                        the
accuracy of any statements (whether written or oral) made in or in connection
with any Transaction Document or any other document,


 


and any representations or warranties implied
by law are excluded.


 


(b)                                      The New Lender confirms to the Existing Lender and the
other Finance Parties that it:


 


(i)                               has made (and shall continue to make) its own independent investigation
and assessment of the financial condition and affairs of the Obligors and their
related entities in connection with its participation in this 


 


100

















 


Agreement
and/or the other Transaction Documents and has not relied exclusively on any
information provided to it by the Existing Lender in connection with any
Transaction Document; and


 


(ii)                            will continue to make its own independent appraisal of the
creditworthiness of the Obligors and their related entities whilst any amount
is or may be outstanding under the Transaction Documents or any commitment
represented by any Commitment of any Lender is in force.


 


(c)                                       Nothing in any Transaction Document obliges the
Existing Lender to:


 


(i)                               accept a re-assignment or re-transfer from the New Lender of any of the
rights and obligations assigned or transferred under this Clause 23; or


 


(ii)                            support any losses directly or indirectly incurred by the New Lender by
reason of the non-performance by any Obligor of its obligations under the
Transaction Documents or otherwise.


 


23.5                  Procedure
for transfer


 


(a)                                       Subject to the conditions set out in Clause 23.2 (Conditions of assignment or transfer) a
transfer by the Existing Lender of any or all of its rights and obligations
under this Agreement is effected on the Transfer Date in accordance with
paragraph (b) below.  The Facility
Agent shall, as soon as reasonably practicable after receipt by it of a duly
completed Transfer Certificate appearing on its face to comply with the terms
of this Agreement and delivered in accordance with the terms of this Agreement,
execute that Transfer Certificate, provided that the Facility Agent shall not
be under any obligation to execute any Transfer Certificate at any time prior
to the expiry of 3 Business Days (or any shorter period as the Facility Agent
may agree) after its receipt of such Transfer Certificate and until completion
of any “Know your customers” checks in accordance with Clause 19.7 (“Know your customer” checks).


 


(b)                                      On the Transfer Date:


 


(i)                               to the extent that in the Transfer Certificate the Existing Lender seeks
to transfer by novation its rights and obligations under this Agreement each of
the Obligors party hereto and the Existing Lender shall be released from
further obligations towards one another under this Agreement and their
respective rights against one another under this Agreement shall be cancelled
(being the “Discharged Rights and Obligations”);


 


(ii)                            each of the Obligors party hereto and the New Lender shall assume
obligations towards one another and/or acquire rights against one another under
this Agreement which differ from the Discharged Rights and Obligations only
insofar as that Obligor and the New Lender have assumed and/or acquired the
same in place of that Obligor and the Existing Lender;


 


101

















 


(iii)                         the
Transaction Agents, the Arranger, the New Lender and the other Lenders shall
acquire the same rights and assume the same obligations between themselves as
they would have acquired and assumed had the New Lender been originally party
hereto as a Lender with the rights and/or obligations acquired or assumed by it
as a result of the transfer (the subject of such Transfer Certificate) and to
that extent the Transaction Agents, the Arranger and the Existing Lender shall
each be released from further obligations to each other under this Agreement;
and


 


(iv)                        the
New Lender shall become a Party as a “Lender”.


 


23.6                  Notification
to the Borrower


 


The Facility Agent shall, as soon as reasonably
practicable after it has executed a Transfer Certificate, send to the Borrower
a copy of that Transfer Certificate.


 


23.7                  Change of
name


 


If a Lender changes its name, then it shall, at
its own cost and within 7 Business Days, provide the Facility Agent with an
original or certified true copy of a legal opinion issued by the legal advisers
to such Lender in the jurisdiction where such Lender is incorporated addressed
to the Facility Agent (for and on behalf of the Finance Parties), which is in
form and substance satisfactory to the Facility Agent, confirming that (a) such
Lender has changed its name; (b) the new name of such Lender; (c) the
date from which such change has taken effect; and (d) such Lender’s
obligations under the Finance Documents remain legal, valid, binding and
enforceable on such Lender after its change of name.  If such Lender fails to provide the Facility
Agent with such legal opinion, it shall, upon the request of the Facility
Agent, sign and deliver to the Facility Agent a Transfer Certificate in respect
of the transfer of its rights and obligations under this Agreement to the entity
with such new name.


 


23.8                  Re-organisation


 


If a Lender becomes subject to a
re-organisation, such Lender shall, at its own costs and within 7 Business Days
after the effective date of such re-organisation, deliver to the Facility Agent
an original or certified true copy of legal opinions, each in form and
substance satisfactory to the Facility Agent, addressed to the Facility Agent
(for and on behalf of the Finance Parties) and issued by legal advisers to such
Lender in each of the jurisdictions (a) where such Lender is incorporated;
(b) where such Lender’s Facility Office is located, and (c) the law
of which governs the Finance Documents such that all such legal opinions taken
together provide the Facility Agent with confirmation that such Lender’s obligations
under the Finance Documents remain legal, valid, binding and enforceable on the
surviving entity of such re-organisation after the re-organisation.  If such Lender fails to provide the Facility
Agent with such legal opinions, it shall, upon the request of the Facility
Agent, sign and deliver to the Facility Agent a Transfer Certificate in respect
of the transfer of its rights and obligations under this Agreement to the
surviving entity of such re-organisation.


 


102

















 


23.9                  Disclosure
of information


 


Each Finance Party may disclose to any of its
Affiliates and any other person:


 


(a)                                       to (or through) whom that Finance Party assigns or
transfers (or may potentially assign or transfer) all or any of its rights and
obligations under any Transaction Document;


 


(b)                                      with (or through) whom that Finance Party enters into
(or may potentially enter into) any sub-participation in relation to, or any
other transaction under which payments are to be made by reference to, any
Transaction Document or any Obligor;


 


(c)                                       who acquires or is proposing to acquire any interest
in, or enters into or is proposing to enter into any merger, amalgamation or
other similar arrangement with, that Finance Party;


 


(d)                                      who is a professional adviser of such Finance Party or
any of such Finance Party’s Affiliates;


 


(e)                                       who is a Secured Party;


 


(f)                                         who is an employee or officer of such Finance Party
(where such disclosure is reasonably required for the performance of the duties
or functions of such employee or officer);


 


(g)                                      who is such Finance Party’s agent, contractor or third
party service provider who is under a duty of confidentiality to such Finance
Party;


 


(h)                                      to whom, and to the extent that, information is
required to be disclosed by any applicable law or regulation or the rules or
requirements of any applicable securities exchange or regulatory or
self-regulatory body or authority; or


 


(i)                                          in any legal proceedings arising out of or in
connection with any Transaction Document, or to the extent otherwise reasonably
necessary in connection with any preservation or enforcement of any right or
remedy under any Transaction Document or any Transaction Security,


 


any information about any or all of the
Obligors, the Group and/or their respective Affiliates and/or the Transaction
Documents as that Finance Party shall consider appropriate provided that, in
the case of paragraph (a), (b), (c) or (d) above, the person to whom
the information is to be given has undertaken in writing that it shall keep
such information confidential and that it may only disclose such information to
another person on terms permitted under this Clause 23.9 (as if the
first-mentioned person were a Finance Party).


 


24.                        CHANGES
TO THE OBLIGORS


 


No Obligor party hereto may assign or transfer
any or all of its rights or obligations under any or all of the Transaction
Documents.


 


103

















 


SECTION 10


THE FINANCE
PARTIES


 


25.                        ROLE
OF THE TRANSACTION AGENTS AND THE ARRANGER


 


25.1                  Appointment
of the Calculation Agent


 


Each
Finance Party (other than the Calculation Agent):


 


(a)                                       appoints the Calculation Agent to act as its agent
under and in connection with the Finance Documents; and


 


(b)                                      authorises the Calculation Agent to exercise the
rights, powers, authorities and discretions specifically given to the
Calculation Agent under or in connection with the Finance Documents together
with any other incidental rights, powers, authorities and discretions.


 


25.2                  Appointment
of the Facility Agent


 


Each
Finance Party (other than the Facility Agent):


 


(a)                                       appoints the Facility Agent to act as its agent under
and in connection with the Finance Documents; and


 


(b)                                      authorises the Facility Agent to exercise the rights,
powers, authorities and discretions specifically given to the Facility Agent
under or in connection with the Finance Documents together with any other
incidental rights, powers, authorities and discretions.


 


25.3                  Appointment
of the Security Agent


 


(a)                                       Each Finance Party (other than the Security Agent)
appoints the Security Agent to act as its security trustee under and in
connection with the Finance Documents.


 


(b)                                      The Security Agent declares that it shall hold:


 


(i)                               any Transaction Security under any Offshore Security Document and all of
its rights and benefits under any Offshore Security Document on trust for the
Secured Parties; and


 


(ii)                            any Transaction Security under any Onshore Security Document and all of
its rights and benefits under any Onshore Security Document on trust for the
Transaction Finance Parties,


 


(in each case) on the
terms contained in this Agreement and the Security Trust Deed.


 


(c)                                       Each Finance Party (other than the Security Agent)
authorises the Security Agent to exercise the rights, powers, authorities and
discretions specifically given to the Security Agent under or in connection
with the Finance Documents together with any other incidental rights, powers,
authorities and discretions.


 


104

















 


25.4                  Duties of
the Calculation Agent


 


(a)                                       The Calculation Agent’s duties under the Finance
Documents are solely mechanical and administrative in nature.


 


(b)                                      Each Party agrees that the Calculation Agent shall
have only those duties, obligations and responsibilities expressly specified in
the Finance Documents to which the Calculation Agent is party (and no others
shall be implied).


 


(c)                                       Except where a Finance Document specifically provides
otherwise, the Calculation Agent is not obliged to review or check the
adequacy, accuracy or completeness of any document it forwards to any party to
any Finance Document or it relies on for the purposes of any calculation under
any Finance Document.


 


25.5                  Duties of
the Facility Agent


 


(a)                                       The Facility Agent shall promptly forward to a party
to any Finance Document the original or a copy of any document which is
delivered to the Facility Agent for that party by any other party to any
Finance Document.


 


(b)                                      Except where a Finance Document specifically provides
otherwise, the Facility Agent is not obliged to review or check the adequacy,
accuracy or completeness of any document it forwards to any party to any
Finance Document.


 


(c)                                       If the Facility Agent receives notice from any party
to any Finance Document referring to a Finance Document, describing a Default
and stating that the circumstance described is a Default, it shall promptly
notify the other Finance Parties.


 


(d)                                      If the Facility Agent is aware of the non-payment of
any principal, interest, commitment fee or other fee payable to a Finance Party
(other than any Transaction Agent or an Arranger) under a Finance Document it
shall promptly notify the other Finance Parties.


 


(e)                                       The Facility Agent’s duties under the Finance
Documents are solely mechanical and administrative in nature.


 


(f)                                         Each Party agrees that the Facility Agent shall have
only those duties, obligations and responsibilities expressly specified in the
Finance Documents to which the Facility Agent is party (and no others shall be
implied).


 


25.6                  Duties of
the Security Agent


 


(a)                                       Without prejudice to paragraph (c) of Clause 30.3
(Delivery), the Security Agent shall
promptly inform the Facility Agent of the contents of any notice or document or
payment received by it (in its capacity as security agent) from any Obligor
under any Finance Document.


 


(b)                                      Except where a Finance Document specifically provides
otherwise, the Security Agent is not obliged to review or check the adequacy,
accuracy or completeness 


 


105

















 


of any document it forwards to the Facility Agent.


 


(c)                                       If the Security Agent receives notice from any party
to any Finance Document referring to a Finance Document, describing a Default
and stating that the circumstance described is a Default, it shall promptly
notify the Facility Agent.


 


(d)                                      Each Party agrees that the Security Agent shall have
only those duties, obligations and responsibilities expressly specified in the
Finance Documents to which the Security Agent is party (and no others shall be
implied).


 


25.7                  Role of
the Arranger


 


(a)                                       Except as specifically provided in the Finance
Documents, the Arranger has no obligations of any kind to any other Party under
or in connection with any Transaction Document.


 


(b)                                      Without prejudice to the generality of the foregoing,
the Arranger shall not have any responsibility to any Party for accepting or
refusing to accept (at its discretion) any document or evidence for the
purposes for satisfying any requirement under any Finance Document for such
document or evidence to be delivered to the Arranger, and/or for such document
or evidence to be satisfactory to the Arranger.


 


25.8                  No
fiduciary duties


 


(a)                                       Nothing in this Agreement constitutes a Transaction
Agent or an Arranger as a trustee or fiduciary of any other person (except, in
the case of the Security Agent, to the extent expressly provided in Clause 25.3
(Appointment of the Security Agent)
and the Security Trust Deed).


 


(b)                                      None of the Transaction Agents and the Arranger shall
be bound to account to any other Finance Party for any sum or the profit element
of any sum received by it for its own account.


 


25.9                  Business
with the Group


 


Each of the Transaction Agents and the Arranger
may render advisory and related services to, accept deposits from, lend money
to and/or generally engage in any kind of banking or other business (together,
the “Other Business”) with any
Obligor or any Affiliate thereof and it is acknowledged and agreed that,
without prejudice to the generality of the foregoing:


 


(a)                                       none of the Transaction Agents and the Arranger shall
be obliged to disclose to any other Finance Party the existence of or details
of any actual or proposed Other Business or any information or documentation
relating thereto (including, without limitation, any and all non-public
information); and


 


(b)                                      each of the Transaction Agents and the Arranger may
possess material information not known to the other Finance Parties and none of
the Transaction Agents and the Arranger shall have any liability with respect
to any non-disclosure of such information, whether prior to, on or after the
date of this 


 


106

















 


Agreement,


 


provided that none of paragraphs (a) and  (b) shall apply to information delivered
or provided to any Transaction Agent or the Arranger in its capacity as such
(without prejudice to Clause 25.7 (Role of
the Arranger), Clause 25.15 (Responsibility
for documentation) and/or Clause 25.22 (Credit appraisal by the Lenders)).


 


25.10            Rights
and discretions of the Calculation Agent


 


(a)                                       The Calculation Agent may rely on:


 


(i)                               any representation, notice or document believed by it to be genuine,
correct and appropriately authorised; and


 


(ii)                            any statement made by a director, authorised signatory or employee of
any person regarding any matters which may reasonably be assumed to be within
his knowledge or within his power to verify.


 


(b)                                      The Calculation Agent may engage, pay for and rely on
the advice or services of any lawyers, accountants, surveyors or other experts.


 


(c)                                       The Calculation Agent may act in relation to the Finance
Documents through its personnel and agents.


 


(d)                                      The Calculation Agent may disclose to any other party
to any Finance Document any information it reasonably believes it has received
as agent under any Finance Document.


 


(e)                                       Notwithstanding any other provision of any Finance
Document to the contrary, the Calculation is not obliged to do or omit to do
anything if it would or might in its reasonable opinion constitute a breach of
any law or regulation or a breach of a fiduciary duty or duty of confidentiality.


 


(f)                                         The Calculation Agent shall be entitled to request
instructions, or clarification of any direction, from the Majority Lenders as
to whether, and in what manner, it should exercise or refrain from exercising
any rights, powers and discretions and the Calculation Agent may refrain from
acting unless and until those instructions or clarification are received by it.


 


25.11            Rights
and discretions of the Facility Agent


 


(a)                                       The Facility Agent may rely on:


 


(i)                               any representation, notice or document believed by it to be genuine,
correct and appropriately authorised; and


 


(ii)                            any statement made by a director, authorised signatory or employee of
any person regarding any matters which may reasonably be assumed to be within
his knowledge or within his power to verify.


 


(b)                                      The Facility Agent may assume (unless it has received
notice to the contrary in its capacity as agent for the Finance Parties) that:


 


107














 


(i)          no
Default has occurred (unless it has actual knowledge of a Default arising under
Clause 22.1 (Non-payment) of this
Agreement); and


 


(ii)         any
right, power, authority or discretion vested in any party to any Finance
Document or the Majority Lenders or the Majority Tranche Lenders (as defined in
Clause 34.2 (Exceptions)) with respect to any
Tranche has not been exercised.


 


(c)             The
Facility Agent may engage, pay for and rely on the advice or services of any
lawyers, accountants, surveyors or other experts.


 


(d)             The
Facility Agent may act in relation to the Finance Documents through its
personnel and agents.


 


(e)             The
Facility Agent may disclose to any other party to any Finance Document any
information it reasonably believes it has received as agent under any Finance
Document.


 


(f)              Notwithstanding
any other provision of any Finance Document to the contrary, neither the
Facility Agent nor the Arranger is obliged to do or omit to do anything if it
would or might in its reasonable opinion constitute a breach of any law or
regulation or a breach of a fiduciary duty or duty of confidentiality.


 


(g)             The
Facility Agent shall be entitled to request instructions, or clarification of
any direction, from the Majority Lenders as to whether, and in what manner, it
should exercise or refrain from exercising any rights, powers and discretions
and the Facility Agent may refrain from acting unless and until those
instructions or clarification are received by it.


 


25.12     Majority
Lenders’ instructions


 


(a)             Unless
a contrary indication appears in a Finance Document, the Facility Agent or, as
the case may be, the Calculation Agent shall (i) exercise any right,
power, authority or discretion vested in it as Facility Agent or, as the case
may be, the Calculation Agent in accordance with any instructions given to it
by the Majority Lenders (or, if so instructed by the Majority Lenders, refrain
from exercising any right, power, authority or discretion vested in it as
Facility Agent or, as the case may be, the Calculation Agent) and (ii) not
be liable for any act (or omission) if it acts (or refrains from taking any
action) in accordance with an instruction of the Majority Lenders.


 


(b)             Unless
a contrary indication appears in a Finance Document, any instructions so given
by the Majority Lenders will be binding on all of the Finance Parties.


 


(c)             The
Facility Agent or, as the case may be, the Calculation Agent may refrain from
acting in accordance with the instructions of the Majority Lenders (or, if
appropriate, the Lenders or the applicable Lenders) until it has received such
indemnity and/or security as it may require for any cost, loss or liability
(together with any associated Indirect Tax) which it may incur in complying
with such instructions.


 


108

















 


(d)             In
the absence of instructions from the Majority Lenders, (or, if appropriate, the
Lenders or the applicable Lenders) the Facility Agent or, as the case may be,
the Calculation Agent may (but shall not be obligated to) act (or refrain from
taking action) as it considers to be in the best interest of the Lenders.


 


(e)             The
Facility Agent or, as the case may be, the Calculation Agent is not authorised
to act on behalf of and/or in the name of a Finance Party (without first
obtaining that Finance Party’s prior written consent) in any legal or
arbitration proceedings relating to any Finance Document, provided that nothing
herein shall prejudice the ability of the Facility Agent or, as the case may
be, the Calculation Agent to bring, defend or conduct any proceedings in its
capacity as Facility Agent or, as the case may be, the Calculation Agent (in
the name of the Facility Agent or, as the case may be, the Calculation Agent).


 


(f)              Notwithstanding
any other provision of this Agreement, where a Lender gives instructions to the
Facility Agent, the Calculation Agent or the Security Agent, it shall not be
obliged to exercise its rights (as attributable to different parts of its
Commitments in respect of any Tranche and/or its share of the Loans) in the
same manner, and may (if it so elects) exercise such rights with respect to
such parts in different manners, in which case such Lender shall be treated as
more than one Lender each holding such part of such rights as may be specified
by such Lender to the Facility Agent, the Calculation Agent or, as the case may
be, the Security Agent at the time of the giving of such instructions.


 


25.13     Rights
and discretions of the Security Agent


 


(a)             The
Security Agent may rely on:


 


(i)          any
representation, notice or document believed by it to be genuine, correct and
appropriately authorised; and


 


(ii)         any
statement made by a director, authorised signatory or employee of any person
regarding any matters which may reasonably be assumed to be within his
knowledge or within his power to verify.


 


(b)             The
Security Agent may assume (unless it has received notice to the contrary from
the Facility Agent) that:


 


(i)          no
Default has occurred;


 


(ii)         any
right, power, authority or discretion vested in any party to any Finance Document,
the Majority Lenders or any other person has not been exercised; and


 


(iii)        (if it receives any
instructions or directions from the Facility Agent to take any action in
relation to any Transaction Security) all applicable conditions under the
Finance Documents for taking that action have been satisfied.


 


(c)             The
Security Agent may engage, pay for and rely on the advice or services of


 


109

















 


any lawyers, accountants, surveyors or other experts.


 


(d)             The
Security Agent may act in relation to the Finance Documents through its
personnel and agents.


 


(e)             The
Security Agent may disclose to any other party to any Finance Document any
information it reasonably believes it has received as security trustee under
any Finance Document.


 


(f)              Notwithstanding
any other provision of any Finance Document to the contrary, the Security Agent
is not obliged to do or omit to do anything if it would or might in its
reasonable opinion constitute a breach of any law or regulation or a breach of
a fiduciary duty or duty of confidentiality.


 


25.14     Facility
Agent’s instructions to the Security Agent


 


(a)             The
Security Agent shall, unless a contrary indication appears in a Finance
Document (including without limitation the Security Trust Deed), exercise any
right, power, authority or discretion vested in it as Security Agent in
accordance with any instructions given to it by the Facility Agent (or, if so
instructed by the Facility Agent, refrain from exercising any right, power, authority
or discretion vested in it as Security Agent) and shall be entitled to assume
that (i) any instructions received by it from the Facility Agent are duly
given by or on behalf of the Finance Parties in accordance with the terms of
the Finance Documents and (ii) (unless it has received actual notice of
revocation) any instructions or directions given by the Facility Agent have not
been revoked.  Except as otherwise
specified in the Security Trust Deed, the Security Agent shall not be obliged
to act in accordance with the instructions given by any or all of the Secured
Parties (other than the Facility Agent).


 


(b)             The
Security Agent shall be entitled to request instructions, or clarification of
any direction, from the Facility Agent as to whether, and in what manner, it
should exercise or refrain from exercising any rights, powers and discretions
and the Security Agent may refrain from acting unless and until those
instructions or clarification are received by it.


 


(c)             The
Security Agent shall be entitled to carry out all dealings with the Finance
Parties through the Facility Agent and may give to the Facility Agent any
notice or other communication required to be given by the Security Agent to any
or all of the other Finance Parties.


 


(d)             The
Security Agent may refrain from acting in accordance with the instructions of
the Facility Agent until it has received such indemnity and/or security as it
may require for any cost, loss or liability (together with any associated
Indirect Tax) which it may incur in complying with such instructions.


 


(e)             In
the absence of instructions from the Facility Agent and subject to the
provisions of the Security Trust Deed, the Security Agent may (but shall not be
obligated to) act (or refrain from taking action) as it considers to be in the
best interest of the Lenders.


 


110

















 


(f)              The
Security Agent is not authorised to act on behalf of and/or in the name of a
Finance Party (without first obtaining that Finance Party’s prior written
consent) in any legal or arbitration proceedings relating to any Finance
Document, provided that nothing herein shall prejudice the ability of the
Security Agent to bring, defend or conduct any proceedings in its capacity as
Security Agent (in the name of the Security Agent).


 


25.15     Responsibility
for documentation


 


None of the Transaction Agents or the Arranger:


 


(a)             is
responsible for the adequacy, accuracy and/or completeness of any information
(whether oral or written) supplied by any Transaction Agent, the Arranger, any
Obligor or any other person given in or in connection with any Transaction
Document; or


 


(b)             is
responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Transaction Document or any other agreement, arrangement
or document entered into, made or executed in anticipation of or in connection
with any Transaction Document.


 


25.16     Exclusion
of liability


 


(a)             Without
limiting paragraph (b) below, a Transaction Agent will not be liable for
any action taken by it under or in connection with any Finance Document, unless
directly caused by its gross negligence or wilful default.


 


(b)             No
Party (other than a Transaction Agent) may take any proceedings against any
officer, employee or agent of such Transaction Agent in respect of any claim it
might have against such Transaction Agent or in respect of any act or omission
of any kind by that officer, employee or agent in relation to any Finance
Document and any officer, employee or agent of such Transaction Agent may rely
on this Clause.


 


(c)             A
Transaction Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required under any of the
Finance Documents to be paid by such Transaction Agent if such Transaction
Agent has taken all necessary steps as soon as reasonably practicable to comply
with the regulations or operating procedures of any recognised clearing or
settlement system used by such Transaction Agent for that purpose.


 


(d)             None
of the Transaction Agents shall be responsible for making, or have any duty to
make, any investigation in respect of or in any way be liable whatsoever for:


 


(i)          the
nature, status, creditworthiness or solvency of any Obligor, any member of the
Group or any other person;


 


(ii)         the
execution, legality, validity, adequacy (including without limitation adequacy
of security, if any, relating to), admissibility in evidence or


 


111

















 


enforceability
of any Transaction Document or any other document entered into in connection
therewith;


 


(iii)        the title, ownership,
value, sufficiency or existence of any Charged Property;


 


(iv)        the registration,
filing, protection or perfection of any Security Document or the priority of
any Transaction Security;


 


(v)         the
scope, adequacy, accuracy or completeness of any representations, warranties or
statements made by or on behalf of, or any information (whether oral or
written) supplied by or on behalf of, any Obligor or any other person under or
in connection with any Transaction Document or any document entered into in
connection therewith;


 


(vi)        the performance or
observance by any Obligor or any other person with any provisions of any
Transaction Document or in any document entered into in connection therewith or
the fulfilment or satisfaction of any conditions contained therein or relating
thereto or as to the existence or occurrence at any time of any default, event
of default or similar event contained therein or any waiver or consent which
has at any time been granted in relation to any of the foregoing;


 


(vii)       the existence,
accuracy or sufficiency of any legal or other opinions, searches, reports,
certificates, valuations or investigations delivered or obtained or required to
be delivered or obtained at any time in connection with any Transaction
Document;


 


(viii)      the title of any
Obligor to any Charged Property;


 


(ix)         the
compliance of the provisions and contents of and the manner and formalities
applicable to the execution of any Transaction Document and any documents
connected therewith, and/or compliance of any such provisions, contents, manner
and/or formalities with any applicable laws or regulations;


 


(x)          the
failure by any Obligor to obtain or comply with any Authorisation or other
authority in connection with the origination, sale or purchase of any of the
Charged Property or the failure to effect or procure registration of or to give
notice to any person in relation to or otherwise protect the security created
or purported to be created by or pursuant to any Transaction Security or other
documents entered into in connection therewith;


 


(xi)         the
failure to call for delivery of documents of title to or require any transfers,
legal mortgages, charges or other further assurances in relation to any of the
assets the subject matter of any of the Transaction Documents or any other
document;


 


(xii)        any accounts subject
to any Transaction Security or any other accounts,


 


112

















 


books, records or
files maintained by any Obligor, or any other person in respect of any of the
Charged Property;


 


(xiii)      the accuracy of any
calculation prepared by any Transaction Agent (except in the case of gross
negligence or wilful default of such Transaction Agent); or


 


(xiv)      any other matter or
thing relating to or in any way connected with any Transaction Security or any
document entered into in connection therewith whether or not similar to the
foregoing.


 


(e)             The
obligations of the Calculation Agent, the Facility Agent and the Security Agent
are several and not joint.


 


(f)              Each
Transaction Agent shall be entitled to deal with moneys paid to it for the
purposes of any Transaction Document in the same manner as other moneys paid to
a banker by its customers and shall not be liable to account for any interest
thereon.


 


(g)             No
monies held by any Transaction Agent need be segregated except as may be
required by law.


 


(h)             Notwithstanding
any other term or provision of this Agreement to the contrary, no Transaction
Agent shall be liable under any circumstances for special, punitive, indirect
or consequential loss or damage of any kind whatsoever including but not
limited to loss of profits, whether or not foreseeable, even if such
Transaction Agent is actually aware of or has been advised of the likelihood of
such loss or damage and regardless of whether the claim for such loss or damage
is made in negligence, for breach of contract, breach of trust, breach of
fiduciary obligation or otherwise. The provisions of this Clause 25.16 shall
survive the termination or expiry of this Agreement or the resignation or
removal of such Transaction Agent.


 


(i)              No
Transaction Agent shall be under any obligation to monitor or supervise the
functions of any other person under this Agreement or any other agreement or
document relating to the transactions herein or therein contemplated and shall
be entitled, in the absence of actual knowledge of a breach of obligation, to
assume that each such person is properly performing and complying with its
obligations.


 


(j)              Nothing
in this Agreement shall oblige any Transaction Agent or the Arranger to carry
out any “know your customer”, anti-money laundering or other checks in relation
to any person on behalf of any Lender and each of the Lenders confirms to each
of the Transaction Agents and the Arranger that it is solely responsible for
any such checks it is required to carry out and that it may not rely on any
such checks made by, or any statement in relation to such checks made by, any
Transaction Agent or the Arranger.


 


25.17     Additional
protection for the Security Agent in relation to Transaction Security


 


(a)             The
Security Agent may accept without investigation, requisition or objection


 


113

















 


such right and title as any Obligor may have to any of the Charged
Property and the other Security created in favour of the Security Agent (as
trustee for any or all of the Secured Parties) by any Security Document and
shall not be bound or concerned to examine or enquire into or be liable for any
defect or failure in the right or title of any Obligor to all or any of the
Charged Property whether such defect or failure was known to the Security Agent
or might have been discovered upon examination or enquiry and whether capable
of remedy or not.


 


(b)             The
Security Agent shall not be liable for any failure, omission or defect in
perfecting, protecting or further assuring any Transaction Security including
(without prejudice to the generality of the foregoing) (i) any failure,
omission or defect in registering or filing or procuring registration or filing
of, or otherwise protecting or perfecting any Transaction Security or the
priority thereof or the right or title of any person in or to the assets
comprised in any Transaction Security by registering under any applicable
registration laws in any applicable territory any notice or other entry
prescribed by or pursuant to the provisions of any such laws and (ii) any
failure or omission to require any further assurances in relation to any
Transaction Security.


 


(c)             The
Security Agent shall not be responsible for any unsuitability, inadequacy or
unfitness of any Charged Property as security for any or all of the obligations
under any or all of the Transaction Documents and shall not be obliged to make
any investigation into, and shall be entitled to assume, the suitability,
adequacy and fitness of any Charged Property as security for any or all of the
obligations under any or all of the Transaction Documents.


 


(d)             The
Security Agent shall not be responsible for investigating, monitoring or
supervising the observance or performance by any person in respect of any
Charged Property or otherwise.


 


(e)             The
Security Agent shall not be responsible for any loss, damage, cost, charge,
claim, demand, expense, judgment, action, proceeding or other liability
(including, without limitation, in respect of Taxes) or any Indirect Taxes
charged or chargeable in respect thereof (“Liability”)
occasioned to any Transaction Security however caused, whether by an act or
omission of any Obligor or any other person (including, without limitation, any
bank, broker, depositary, warehouseman or other intermediary or any clearing
system or operator thereof) acting in accordance with or contrary to the
provisions of any of the Transaction Documents or otherwise and irrespective of
whether any Transaction Security is held by or to the order of any of such
persons, unless such Liability has been finally judicially determined to have
resulted from the fraud, wilful default or gross negligence of the Security
Agent.


 


(f)              Without
prejudice to the obligations of the Obligors relating to insurance under the
Finance Documents, the Security Agent shall not be under any obligation to
insure any of the Transaction Security or any deeds or documents of title or
other evidence in respect of any Transaction Security or to require any other
person to maintain any such insurance or monitor the adequacy of any such 


 


114

















 


insurance and shall not be responsible for any Liability which may be
suffered as a result of the lack of or inadequacy of any such insurance.


 


(g)             The
Security Agent shall not be responsible for any Liability occasioned by the
operation (whether by any Obligor or otherwise) of any account subject to any
Transaction Security whether by depreciation in value or by fluctuation in
exchange rates or otherwise unless such Liability is attributable to the
operation of such account by the Security Agent after the enforcement of
Transaction Security over such account and has been finally judicially
determined to have been occasioned by the fraud, wilful default or gross
negligence of the Security Agent.


 


(h)             The
Security Agent shall not be liable for any decline in the value nor any loss
realised upon any sale or other disposition of any of the Charged Property made
pursuant to any Finance Document.


 


(i)              The
Security Agent shall have no responsibility whatsoever to any Obligor or any
other Secured Party as regards any deficiency which might arise because the
Security Agent is subject to any Tax in respect of all or any of the Charged
Property, the income therefrom or the proceeds thereof.


 


(j)              The
Security Agent shall not be obliged (whether or not directed by the Secured
Parties) to perfect the legal title to any Transaction Security in its name or
any of the related collateral security if, in its opinion, such perfection
would or might result in the Security Agent becoming liable to or incurring any
obligation to any Obligor under any Transaction Security or any of the related
collateral security and/or in its opinion, there is or would be insufficient
cash to discharge, in accordance with the provisions of the Transaction
Documents, such liabilities or obligations as and when they arise.


 


(k)             The
Security Agent shall not, nor shall any receiver appointed pursuant to any
Finance Document or any attorney or agent of the Security Agent by reason of
taking possession of the whole or any part of the Charged Property or any other
reason whatsoever and whether as mortgagee in possession or on any other basis
whatsoever, be liable to account for anything except actual receipts or be
liable for any loss or damage arising from the realisation of the whole or any
part of the Charged Property or any other property, assets, rights or
undertakings of whatsoever nature whether or not owned by any Obligor or any
other person or in which any Obligor or any other person has an interest, from
any act, default or omission in relation to all or any of the Charged Property
or any other property, assets, rights or undertakings of whatsoever nature
whether or not owned by any Obligor or any other person or in which any Obligor
or any other person has an interest or from any act, default or omission in
relation to the whole or any part of the Charged Property or from any exercise
or non-exercise by it of any right, remedy or power conferred upon it in
relation to the whole or any part of the Charged Property or any other
property, assets, rights or undertakings of whatsoever nature whether or not
owned by any Obligor or any other person or in which any Obligor or any other
person has an interest, by or pursuant to any


 


115

















 


Finance Document or otherwise, unless such loss or damage is finally
judicially determined to have been caused by its fraud, wilful default or gross
negligence.


 


(l)              In
the event of (i) a Default or (ii) the Security Agent considering it
necessary or expedient or (iii) the Security Agent being requested by an
Obligor or the Majority Lenders to undertake duties which the Security Agent
and the Borrower agree to be of an exceptional nature and/or outside the scope
of the normal duties of the Security Agent under the Finance Documents, the
Borrower shall pay to the Security Agent any additional remuneration that may
be agreed between them.


 


(m)            If
the Security Agent and the Borrower fail to agree upon the nature of the duties
or upon any additional remuneration, that dispute shall be determined by an
investment bank (acting as an expert and not as an arbitrator) selected by the
Security Agent and approved by the Borrower or, failing approval nominated (on
the application of the Security Agent) by the President for the time being of
the Law Society of Hong Kong (the costs of the nomination and of the investment
bank being payable by the Borrower) and the determination of any investment
bank shall be final and binding upon the parties to this Agreement.


 


25.18     Lenders’
indemnity to the Transaction Agents


 


Each Lender shall in the proportion borne by (a) (if
no Loan is outstanding) the aggregate of its Commitment(s) (for any and
all of the Tranches) to the Total Commitments or, if the Total Commitments are
then zero, such proportion immediately prior to the reduction of the Total Commitments
to zero) or (b) (if any Loan or any part thereof is outstanding) its share
of the aggregate principal amount of the Loans to the aggregate principal
amount of the Loans) indemnify each of the Transaction Agents, within three
Business Days of demand, against any claims, damages, expenses (including,
without limitation, legal fees and any applicable value added tax), cost, loss
or liability incurred by such Transaction Agent (otherwise than by reason of
such Transaction Agent’s gross negligence or wilful default) in acting as
Transaction Agent under any or all of the Finance Documents (unless such
Transaction Agent has been reimbursed by any Obligor pursuant to a Finance
Document in respect of the same claims, damages, expenses (including, without limitation,
legal fees and any applicable value added tax), cost, loss or liability).


 


25.19     Resignation
of the Transaction Agents


 


(a)             A
Transaction Agent may resign and appoint one of its Affiliates as successor by
giving notice to the Lenders and the Borrower.


 


(b)             Alternatively
a Transaction Agent may resign by giving notice to the Lenders and the
Borrower, in which case the Majority Lenders (after consultation with the
Borrower) may appoint a successor Transaction Agent.


 


(c)             If
the Majority Lenders have not appointed a successor Transaction Agent in
accordance with paragraph (b) above within 30 days after notice of
resignation was given, the relevant Transaction Agent (after consultation with
the Borrower)


 


116

















 


may appoint a successor Transaction Agent.


 


(d)             The
retiring Transaction Agent shall make available to the successor Transaction
Agent such documents and records and provide such assistance as the successor
Transaction Agent may reasonably request for the purposes of performing its
functions as Transaction Agent under the Finance Documents.


 


(e)             A
Transaction Agent’s resignation notice shall only take effect upon (i) the
appointment of a successor to such Transaction Agent and (ii) (in the case
of the Security Agent) the assignment or transfer of all of the Transaction
Security held by the retiring Security Agent to that successor.


 


(f)              Upon
the appointment of a successor Transaction Agent, the retiring Transaction
Agent shall be discharged from any further obligation in respect of the Finance
Documents but shall remain entitled to the benefit of this Clause 25.19.  Its successor and each of the other Parties
shall have the same rights and obligations amongst themselves as they would
have had if such successor had been an original Party.


 


(g)             After
consultation with the Borrower, the Majority Lenders may, by notice to a
Transaction Agent, require it to resign in accordance with paragraph (b) above.  In this event, such Transaction Agent shall
resign in accordance with paragraph (b) above.


 


25.20     Confidentiality


 


(a)             In
acting as agent for any or all of the Finance Parties, each Transaction Agent
shall be regarded as acting through its agency division which shall be treated
as a separate entity from any other of its divisions or departments.


 


(b)             In
acting as trustee for any or all of the Secured Parties, each Transaction Agent
shall be regarded as acting through its agency division which shall be treated
as a separate entity from any other of its divisions or departments.


 


(c)             If
information is received by another division or department of a Transaction
Agent, it may be treated as confidential to that division or department and
such Transaction Agent shall not be deemed to have notice of it.


 


25.21     Relationship
with the Lenders


 


Each
Transaction Agent may treat each Lender as a Lender entitled to payments under
the Finance Documents (as a Lender) and acting through its Facility Office
unless it has received not less than five Business Days’ prior notice from (in
the case of the Facility Agent or, as the case may be, the Calculation Agent)
that Lender or (in the case of the Security Agent) the Facility Agent to the
contrary in accordance with the terms of this Agreement.


 


25.22     Credit
appraisal by the Lenders


 


Without affecting the responsibility of any
Obligor for information supplied by it or on its behalf in connection with any
Transaction Document, each of the Lenders confirms to


 


117














 


the Transaction Agents and the Arranger that it
has been, and will continue to be, solely responsible for making its own
independent appraisal and investigation of all risks arising under or in
connection with any Transaction Document including but not limited to:


 


(a)             the
financial condition, status and nature of the Obligors and their Affiliates;


 


(b)             the
legality, validity, effectiveness, adequacy or enforceability of any
Transaction Document and/or any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in connection with
any Transaction Document;


 


(c)             whether
that Lender has recourse, and the nature and extent of that recourse, against
any party to any Transaction Document or any of its respective assets under or
in connection with any Transaction Document, the transactions contemplated by
the Transaction Documents or any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in connection with
any Transaction Document; and


 


(d)             the
adequacy, accuracy and/or completeness any information provided by any
Transaction Agent, any party to any Transaction Document or by any other person
under or in connection with any Transaction Document, the transactions
contemplated by the Transaction Documents or any other agreement, arrangement
or document entered into, made or executed in anticipation of, under or in
connection with any Transaction Document.


 


25.23     Deduction
from amounts payable by Transaction Agents


 


If any Party owes an amount to any Transaction
Agent under any of the Finance Documents, any Transaction Agent may, after
giving notice to such Party, deduct an amount not exceeding that amount from
any payment to such Party which such Transaction Agent would otherwise be
obliged to make under the Finance Documents and apply the amount deducted in or
towards satisfaction of that amount owed by such Party to the relevant
Transaction Agent.  For the purposes of
the Finance Documents such Party shall be regarded as having received any
amount so deducted.


 


25.24     Money
laundering


 


Unless mandatorily required by applicable laws
or regulations to which a Transaction Agent is subject, that Transaction Agent
shall not be responsible to any Party for providing any certification or
documents with respect to any information (except for any information in
respect of itself) required for any anti-money laundering due diligence
purpose.  Such certificates and related
documents shall be provided directly by the Obligors provided that the request
for such information may be made through the Facility Agent.


 


25.25     Perpetuity
period


 


The perpetuity period (if applicable) for the
trusts constituted under the Finance Documents shall be 80 years from the date
of this Agreement.


 


118

















 


25.26     Waiver


 


Each of the Finance Parties acknowledges that:


 


(a)             the
Facility Agent or, as the case may be, the Calculation Agent shall act as agent
for any or all of the Finance Parties under the Finance Documents and
irrevocably waives, in favour of the Facility Agent or, as the case may be, the
Calculation Agent, any conflict of interest which may arise by virtue of the
Facility Agent or, as the case may be, the Calculation Agent acting as agent
for any or all of the other Finance Parties under or in connection with any or
all of the Finance Documents; and


 


(b)             the
Security Agent shall act as trustee for any or all of the Secured Parties under
the Finance Documents and irrevocably waives, in favour of the Security Agent,
any conflict of interest which may arise by virtue of the Security Agent acting
as trustee for any or all of the other Secured Parties under or in connection
with any or all of the Finance Documents.


 


25.27     Transaction
Agent’s management time


 


Any amount payable to a Transaction Agent under
Clause 15.3 (Indemnity to the Calculation
Agent, the Facility Agent and the Security Agent), Clause 17 (Costs and expenses) and Clause 25.18 (Lenders’ indemnity to the Transaction Agents)
shall include the cost of utilising the relevant Transaction Agent’s management
time or other resources and will be calculated on the basis of such reasonable
daily or hourly rates as the relevant Transaction Agent may notify to the
Borrower and the Lenders, and is in addition to any fee paid or payable to the
Transaction Agents under Clause 12 (Fees).


 


26.         CONDUCT
OF BUSINESS BY THE FINANCE PARTIES


 


No provision of this Agreement will:


 


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


 


(b)             oblige
any Finance Party to investigate or claim any credit, relief, remission or
repayment available to it or the extent, order and manner of any claim; or


 


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


 


27.         SHARING
AMONG THE FINANCE PARTIES


 


27.1       Payments
to Finance Parties


 


If a Finance Party (a “Recovering Finance Party”) receives or
recovers any amount from or in respect of any Obligor (“Relevant Obligor”) (including without
limitation pursuant to Clause 29 (Set-Off))
other than in accordance with Clause 28 (Payment
mechanics) and applies that amount to a payment due under any
Finance Document then:


 


(a)             the
Recovering Finance Party shall, within three Business Days, notify details of
such receipt or recovery, to the Facility Agent;


 


119

















 


(b)             the
Facility Agent shall determine whether such receipt or recovery is in excess of
the amount that the Recovering Finance Party would have been paid had such
receipt or recovery been received or made by the Facility Agent and distributed
in accordance with Clause 28 (Payment
mechanics), without taking account of any Tax which would be imposed
on the Facility Agent in relation to such receipt, recovery or distribution;
and


 


(c)             the
Recovering Finance Party shall, within three Business Days of demand by the
Facility Agent, pay to the Facility Agent an amount (the “Sharing Payment”) equal to such receipt or
recovery less any amount which the Facility Agent determines may be retained by
the Recovering Finance Party as its share of any payment to be made (by
reference to such receipt or recovery) in accordance with Clause 28.5 (Partial payments),


 


provided that issuance or transfer of any
shares of Cayman Co to any Transaction Warrant Holder in accordance with the terms of any
Transaction Warrant Document shall not be construed as a receipt or recovery of
any amount under any Transaction Document for the purpose of this Clause 27.


 


27.2       Redistribution
of payments


 


The Facility Agent shall treat the Sharing
Payment as if it had been paid by the Relevant Obligor and distribute it
between the applicable Finance Parties and/or Secured Parties (other than, in
each case, the Recovering Finance Party) in accordance with Clause 28.5 (Partial payments).


 


27.3       Recovering
Finance Party’s rights


 


(a)             On a
distribution by the Facility Agent under Clause 27.2 (Redistribution of payments), the
Recovering Finance Party will be subrogated to the rights of the applicable
Finance Parties and/or the Secured Parties which have shared in such
distribution.


 


(b)             If
and to the extent that the Recovering Finance Party is not able to rely on its
rights under paragraph (a) above, the Relevant Obligor (if party hereto,
or if the Relevant Obligor is not party hereto, the Borrower) shall be liable
to the Recovering Finance Party for a debt equal to the Sharing Payment which
is immediately due and payable.


 


27.4       Reversal
of redistribution


 


To the extent that any part of the amount
received or recovered by a Recovering Finance Party (which amount gives rise to
any Sharing Payment) becomes repayable and is repaid by that Recovering Finance
Party, then:


 


(a)             each
Lender which has received a share of such Sharing Payment pursuant to Clause
27.2 (Redistribution of payments)
shall, upon request of the Facility Agent, pay to the Facility Agent for
account of that Recovering Finance Party an amount equal to the appropriate
part of its share of such Sharing Payment (together with an amount as is
necessary to reimburse that Recovering Finance


 


120

















 


Party for its proportion of any interest on such repayable amount which
that Recovering Finance Party is required to pay); and


 


(b)             that
Recovering Finance Party’s rights of subrogation in respect of any
reimbursement shall be cancelled and the Relevant Obligor (if party hereto, or
if the Relevant Obligor is not party hereto, the Borrower) will be liable to
each reimbursing Lender for the amount so reimbursed.


 


27.5       Exceptions


 


(a)             This
Clause 27 shall not apply to the extent that the Recovering Finance Party would
not, after making any payment pursuant to this Clause, have a valid and
enforceable claim against the Relevant Obligor or the Borrower.


 


(b)             A
Recovering Finance Party is not obliged to share with any other Finance Party
any amount which that Recovering Finance Party has received or recovered as a
result of taking legal or arbitration proceedings, if:


 


(i)          it
notified that other Finance Party of the legal or arbitration proceedings; and


 


(ii)         that
other Finance Party had an opportunity to participate in those legal or
arbitration proceedings but did not do so as soon as reasonably practicable having
received notice and did not take separate legal or arbitration proceedings.


 


121

















 


SECTION 11


ADMINISTRATION


 


28.         PAYMENT
MECHANICS


 


28.1       Payments
to the Facility Agent


 


(a)             On
each date on which an Obligor party hereto or a Lender is required to make a
payment under a Finance Document, that Obligor or that Lender shall make the
same available to the Facility Agent (unless a contrary indication appears in a
Finance Document) for value on the due date at the time and in such funds
specified by the Facility Agent as being customary at the time for settlement
(in place of 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 the currency of such payment with such bank as the Facility Agent specifies
so as to be received by 2:00 pm (Hong Kong time) on the date for each such
payment.


 


(c)             Each
Obligor party hereto and each Lender shall ensure that by 5.00 p.m. (Hong
Kong time) on the Business Day prior to the date on which an amount is to be
paid by such Obligor or, as the case may be, advanced by such Lender to the
Facility Agent pursuant to the terms hereof, the Facility Agent shall have
received an authenticated SWIFT addressed to (DEUTHKHH xxx) marked for the
attention of Anson Chan/Kaiza Chun (Loan Operations) (or any other attention
details from time to time notified by the Facility Agent to such Obligor or, as
the case may be, such Lender), (or any other evidence satisfactory to the
Facility Agent) confirming that such amount shall be transferred to the account
of the Facility Agent in accordance with this paragraph (c).


 


28.2       Distributions
by the Transaction Agents


 


(a)             Each
payment received or recovered by the Facility Agent under any Finance Documents
for another Party shall, subject to Clause 28.3 (Distributions to an Obligor), Clause 28.4 (Clawback), Clause 28.5 (Partial payments) and Clause 25.23 (Deduction from amounts payable by Transaction Agents),
be made available by the Facility Agent as soon as practicable after receipt to
the Party entitled to receive payment in accordance with this Agreement (in the
case of a Lender, for the account of its applicable Facility Office), to such account
as that Party may notify to the Facility Agent by not less than five Business
Days’ notice with a bank in the principal financial centre of the country of
the currency of such payment.


 


(b)             If
the Security Agent receives or recovers any amount from or in respect of any
Obligor under or in connection with any Finance Document, it shall promptly
notify the Facility Agent, and the Facility Agent shall instruct the Security
Agent to make available such amount, subject to Clause 28.3 (Distributions to an Obligor), Clause 28.4
(Clawback), Clause 28.5 (Partial payments) and Clause 25.23 (Deduction from amounts payable by Transaction Agents),
as soon as 


 


122

















 


practicable after receipt or recovery to the Secured Party entitled to
receive payment in accordance with this Agreement and the Security Trust Deed
(in the case of a Party, to such account as that Party may notify to the
Facility Agent by not less than five Business Days’ notice with a bank in the
principal financial centre of the country of the currency of such payment (and,
in the case of a Lender, for the account of its applicable Facility
Office)).  The Security Agent shall be
entitled to rely on any instructions of the Facility Agent in making any distribution
or effecting any payment under any Finance Document.


 


28.3       Distributions
to an Obligor


 


A Transaction Agent may (with the consent of
the Obligor referred to below or in accordance with Clause 29 (Set-Off)) apply any amount received by it
for any Obligor party hereto in or towards payment (on the date and in the
currency and funds of receipt) of any amount due from that Obligor under any or
all of the Transaction Documents or in or towards purchase of any amount of any
currency to be so applied.


 


28.4       Clawback


 


(a)             Where
a sum is to be paid to a Transaction Agent under the Finance Documents for
another Party or Secured Party, that Transaction Agent is not obliged to pay
that sum to that other Party or Secured Party (or to enter into or perform any
related exchange contract) until it has been able to establish to its
satisfaction that it has actually received that sum.


 


(b)             To
the extent that a Transaction Agent pays an amount to another Party and it
proves to be the case that such Transaction Agent had not actually received
that amount, then the Party to whom that amount (or the proceeds of any related
exchange contract) was paid by such Transaction Agent shall on demand refund
the same to such Transaction Agent together with interest on that amount from
the date of payment to the date of receipt by such Transaction Agent,
calculated by such Transaction Agent to reflect its cost of funds.


 


28.5       Partial
payments


 


(a)             If
any Finance Party receives or recovers an amount from or in respect of any
Obligor under or in connection with any Finance Document (other than
Transaction Security Proceeds in respect of any Security Document) which amount
is insufficient (or is not applied) to discharge all the amounts then due and
payable by such Obligor under the Transaction Finance Documents, then (subject
to the provisions of the Security Trust Deed) such amount shall be applied (or,
in the case of any receipt or recovery by the Security Agent, the Facility
Agent shall instruct the Security Agent to apply such amount) towards the
obligations of such Obligor to the Transaction Finance Parties under the
Transaction Finance Documents in the following order:


 


(i)          firstly, in
or towards payment pro rata of any unpaid fees, costs and expenses of the
Transaction Agents and the Arranger under the Finance Documents;


 


123

















 


(ii)         secondly, in
or towards payment pro rata of (A) any accrued interest, fee or commission
due but unpaid under the Finance Documents and (B) any sum (other than any
sum payable in respect of termination, unwinding or rescission of any Treasury
Transaction or any reimbursement of costs, expenses or Taxes) due to any Swap
Counterparty under the Hedging Agreements but unpaid;


 


(iii)        thirdly, in
or towards payment pro rata of (A) any principal on the Loans (or any part
thereof) due but unpaid under the Finance Documents and (B) any sum due
but unpaid to any Swap Counterparty under any Hedging Agreement in respect of
any termination, unwinding or rescission of any Treasury Transaction under such
Hedging Agreement; and


 


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


 


(b)             All
Transaction Security Proceeds in respect of any Offshore Security Document shall
(subject to the provisions of such Offshore Security Document and the Security
Trust Deed) be applied towards the Secured Obligations in the following order:


 


(i)          first, in
or towards payment pro rata of any costs, charges, losses, liabilities and/or
expenses incurred by the Security Agent and/or any receiver(s) in
connection with the exercise or enforcement of any Transaction Security and/or
rights and/or remedies under any Security Document giving rise to the receipt
or recovery of such Transaction Security Proceeds;


 


(ii)         secondly, in
or towards payment pro rata of any unpaid fees, costs and expenses of the
Transaction Agents and the Arranger under the Finance Documents;


 


(iii)        thirdly, in
or towards payment pro rata of (A) any accrued interest, fee or commission
due but unpaid under the Finance Documents and (B) any sum (other than any
sum payable in respect of termination, unwinding or rescission of any Treasury
Transaction or any reimbursement of costs, expenses or Taxes) due to any Swap
Counterparty under the Hedging Agreements but unpaid;


 


(iv)        fourthly, in
or towards payment pro rata of (A) any principal on the Loans (or any part
thereof) due but unpaid under the Finance Documents and (B) any sum due
but unpaid to any Swap Counterparty under any Hedging Agreement in respect of
any termination, unwinding or rescission of any Treasury Transaction under such
Hedging Agreement; and


 


(v)         fifthly, in
or towards payment pro rata of any other sum due but unpaid under the
Transaction Documents (including without limitation any sum


 


124

















 


due
but unpaid under any Transaction Warrant Document).


 


(c)             All
Transaction Security Proceeds in respect of any Onshore Security Document shall
(subject to the provisions of such Onshore Security Document and the Security
Trust Deed) be applied towards the Secured Onshore Obligations in the following
order:


 


(i)          first, in
or towards payment pro rata of any costs, charges, losses, liabilities and/or
expenses incurred by the Security Agent and/or any receiver(s) in
connection with the exercise or enforcement of any Transaction Security and/or
rights and/or remedies under any Security Document giving rise to the receipt
or recovery of such Transaction Security Proceeds;


 


(ii)         secondly, in
or towards payment pro rata of any unpaid fees, costs and expenses of the
Transaction Agents and the Arranger under the Finance Documents;


 


(iii)        thirdly, in
or towards payment pro rata of (A) any accrued interest, fee or commission
due but unpaid under the Finance Documents and (B) any sum (other than any
sum payable in respect of termination, unwinding or rescission of any Treasury
Transaction or any reimbursement of costs, expenses or Taxes) due to any Swap
Counterparty under the Hedging Agreements but unpaid;


 


(iv)        fourthly, in
or towards payment pro rata of (A) any principal on the Loans (or any part
thereof) due but unpaid under the Finance Documents and (B) any sum due
but unpaid to any Swap Counterparty under any Hedging Agreement in respect of
any termination, unwinding or rescission of any Treasury Transaction under such
Hedging Agreement; and


 


(v)         fifthly, in
or towards payment pro rata of any other sum due but unpaid under the
Transaction Finance Documents.


 


(d)             Subject
to the provisions of the Security Trust Deed, the Facility Agent shall, if so
directed by the Majority Lenders and with the prior written consent of each
Swap Counterparty, vary the order set out in paragraphs (a)(ii) to (iv) above,
or the order set out in paragraphs (b)(iii) to (v) above or the order
set out in paragraphs (c)(iii) to (v) above.


 


(e)             Paragraphs
(a) to (d) above will override any appropriation made by an Obligor
party hereto.


 


28.6       No
set-off by Obligors


 


All payments to be made by any Obligor party
hereto under any or all of the Finance Documents shall be calculated and be
made without (and free and clear of any deduction for) set-off or counterclaim.


 


125

















 


28.7       Business
Days


 


(a)             Any
payment which is due to be made under a Finance Document 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
pursuant to paragraph (a) above, interest is payable on such principal or
Unpaid Sum at the rate payable on the original due date.


 


28.8       Currency
of account


 


(a)             Subject
to paragraphs (b) to (d) below the US dollar is the currency of
account and payment for any sum from an Obligor party hereto under any Finance
Document.


 


(b)             Each
payment of interest shall be made in the currency in which the sum in respect
of which such interest is payable was denominated when such interest accrued.


 


(c)             Each
payment in respect of costs, expenses or Taxes shall be made in the currency in
which such costs, expenses or Taxes are incurred.


 


(d)             Any
amount expressed to be payable in a currency other than US dollars shall be
paid in that other currency.


 


28.9       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 this Agreement to, and any obligations arising under this
Agreement in, the currency of that country shall be translated into, or paid
in, the currency or currency unit of that country designated by the Facility
Agent; 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
Facility Agent (acting reasonably).


 


(b)             If a
change in any currency of a country occurs, this Agreement will, to the extent
the Facility Agent (acting reasonably) specifies to be necessary, be amended to
comply with any generally accepted conventions and market practice in the
London interbank market and otherwise to reflect the change in currency.


 


29.         SET-OFF


 


A Finance Party may, upon and at any time after
the occurrence of an Event of Default, set-off any matured obligation due from
an Obligor party hereto under any or all of the


 


126

















 


Finance Documents (to the extent beneficially
owned by that Finance Party) against any matured obligation owed by that
Finance Party to that Obligor, regardless of the place of payment, booking
branch or currency of either obligation. 
If such obligations are in different currencies, that Finance Party may
convert either obligation at a market rate of exchange in its usual course of
business for the purpose of such set-off.


 


30.         NOTICES


 


30.1       Communications
in writing


 


Any communication to be made by a Party to
another Party under or in connection with the Finance Documents shall be made
in writing and, unless otherwise stated, may be made by fax or letter.


 


30.2       Addresses


 


The address and fax number (and the department
or officer, if any, for whose attention the communication is to be made) of
each Party for any communication or document to be made or delivered under or
in connection with the Finance Documents is:


 


(a)             in
the case of the Borrower, Parentco, Holdco or Cayman Co, that identified with its name in the
Second Amendment Agreement;


 


(b)             in
the case of any Lender, that notified in writing to the Facility Agent on or
prior to the date on which it becomes a Party; and


 


(c)             in
the case of a Transaction Agent, that identified with its name in the Second Amendment Agreement,


 


or any substitute address or fax number or
department or officer as that Party may notify to the Facility Agent (or the
Facility Agent may notify to the other Parties, if a change is made by the
Facility Agent) by not less than five Business Days’ notice.


 


30.3       Delivery


 


(a)             Any
communication or document made or delivered by one Party to another Party under
or in connection with any 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
Business Days after being deposited in the post postage prepaid in an envelope
addressed to it at that address,


 


and, if a particular department or officer is
specified as part of its address details provided under Clause 30.2 (Addresses), if addressed to that
department or officer.


 


(b)             Any
communication or document to be made or delivered to the Facility Agent or the
Security Agent under or in connection with any Finance Document will be
effective only when actually received by the Facility Agent or, as the case may
be, the Security Agent and then only if it is expressly marked for the
attention of


 


127














 


the department or officer identified with the signature below of the
Facility Agent or, as the case may be, the Security Agent (or any substitute
department or officer as the Facility Agent or, as the case may be, the
Security Agent shall specify for this purpose).


 


(c)             All notices from or to an Obligor party hereto under
or in connection with any Finance Document shall be sent through the Facility
Agent.


 


(d)             All notices from the Security Agent to any Finance
Party or from any Finance Party to the Security Agent under or in connection
with any Finance Document shall be sent through the Facility Agent.


 


(e)             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 each of the other Obligors party hereto.


 


30.4       Notification of address and fax
number


 


Promptly upon changing its own address or fax
number, the Facility Agent shall notify the other Parties.


 


30.5       Electronic communication


 


(a)             Any communication to be made between the Facility
Agent and a Lender under or in connection with any Finance Document may be made
by electronic mail or other electronic means, if the Facility Agent and that
Lender:


 


(i)          agree that, unless and until notified to the contrary,
this is to be an accepted form of communication;


 


(ii)         notify each other in writing of their electronic mail
address and/or any other information required to enable the sending and receipt
of information by that means; and


 


(iii)        notify each other of any change to their address or
any other such information supplied by them.


 


(b)             Any electronic communication made between the Facility
Agent and a Lender under or in connection with a Finance Document will be
effective only when actually received in readable form and in the case of any
electronic communication made by a Lender to the Facility Agent only if it is
addressed in such a manner as the Facility Agent shall specify for this
purpose.


 


(c)             Subject to paragraph (b) above, each of the
Parties acknowledges that electronic means of communication may not be secure
or virus or error free and could be intercepted, corrupted, lost, destroyed or
arrive late, and none of the Obligors, the Finance Parties or their Affiliates
will be liable to any other Party for any of such occurrences, unless directly
caused by such Party’s gross negligence or wilful default.  Such Affiliates may rely on this paragraph
(c).


 


128

















 


30.6       English language


 


(a)            Any notice given under or in connection with any
Finance Document must be in English.


 


(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 Facility
Agent, 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.


 


31.         CALCULATIONS AND CERTIFICATES


 


31.1       Accounts


 


In any litigation or arbitration proceedings
arising out of or in connection with a Finance Document, the entries made in
the accounts maintained by a Finance Party are prima facie evidence of the
matters to which they relate.


 


31.2       Certificates and Determinations


 


Any certification or determination by a Finance
Party of a rate or amount under any Finance Document is, in the absence of
manifest error, conclusive evidence of the matters to which it relates.


 


31.3       Day count convention


 


Any interest, commission or fee accruing under
a Finance Document will accrue from day to day and is calculated on the basis
of the actual number of days elapsed and a year of 360 days or, in any case
where the practice in the London interbank market differs, in accordance with
that market practice.


 


32.         PARTIAL INVALIDITY


 


If, at any time, any provision of the Finance
Documents is or becomes illegal, invalid or unenforceable in any respect under
any law of any jurisdiction, neither the legality, validity or enforceability
of the remaining provisions nor the legality, validity or enforceability of
such provision under the law of any other jurisdiction will in any way be
affected or impaired.


 


33.         REMEDIES AND WAIVERS


 


No failure to exercise, nor any delay in
exercising, on the part of any Finance Party, any right or remedy under the Finance
Documents shall operate as a waiver, nor shall any single or partial exercise
of any right or remedy prevent any further or other exercise or the exercise of
any other right or remedy.  The rights
and remedies provided in this Agreement are cumulative and not exclusive of any
rights or remedies provided by law.


 


129

















 


34.                        AMENDMENTS AND WAIVERS


 


34.1                  Required consents


 


(a)            Subject to Clause 34.2 (Exceptions) any term of any Finance Document may be amended
or waived only in writing and with the consent of the Majority Lenders and the
Obligor(s) party thereto.  Any such
amendment or waiver so made with such consent will be binding on all Parties.


 


(b)           The Facility Agent may effect, on behalf of any
Finance Party, any amendment or waiver permitted by this Clause.


 


34.2                  Exceptions


 


(a)            An amendment or waiver that has the effect of changing
or which relates to:


 


(i)          the definition of “Majority Lenders” in Clause 1.1 (Definitions);


 


(ii)         an extension to the date of payment of any amount
under the Finance Documents;


 


(iii)        a reduction in the Margin in respect of any Loan or a
reduction in the amount of, or any change in the currency of, any payment of
principal, interest, fees, premium or commission payable;


 


(iv)        an increase in or an extension of, or any change in
the currency of, any Commitment of any Lender in respect of any Tranche;


 


(v)         a change to an Obligor;


 


(vi)        any release of any Transaction Security (other than in
accordance with the terms of the Security Document(s) governing such
Transaction Security);


 


(vii)       any provision which expressly requires the consent of
all the Lenders; or


 


(viii)      Clause 2.2 (Finance
Parties’ rights and obligations), Clause 23 (Changes to the Lenders), Clause 27 (Sharing among the Finance Parties) or this Clause 34,


 


shall
not be made without the prior consent of all the Lenders.


 


(b)             In addition to any consent that may be required under
the other provisions of this Clause 34.2 and the consent of the Majority
Lenders required under Clause 34.1 (Required consents),
any amendment or waiver of the provisions of any of Clause 5 (Conditions of Utilisation) or Clauses 6.1 (Delivery of a Utilisation Request) to 6.3 (Currency and amount) shall, to the extent that (i) such
amendment or waiver relates to any proposed Utilisation of any Tranche (other
than Tranche One) and (ii) there are one or more Lenders with an Available
Commitment in respect of such Tranche of greater than zero, require the prior
consent of the Majority Tranche Lenders with respect to such Tranche.  For such purpose, “Majority
Tranche Lenders” means, with respect to any Tranche, a Lender or
Lenders the aggregate of whose Available Commitments for such Tranche is more
than 50% of the Available Facility for such Tranche.


 


130

















 


(c)             An amendment or waiver which relates to the rights or
obligations of a Transaction Agent or the Arranger may not be effected without
the consent of that Transaction Agent or, as the case may be, the Arranger.


 


35.         COUNTERPARTS


 


This Agreement may be executed in any number of
counterparts, and this has the same effect as if the signatures on the
counterparts were on a single copy of this Agreement.


 


131

















 


SECTION 12


GOVERNING
LAW AND ENFORCEMENT


 


36.         GOVERNING LAW


 


This Agreement shall be governed by and shall
be construed in accordance with the laws of Hong Kong.


 


37.         ENFORCEMENT


 


37.1       Jurisdiction of Hong Kong Courts


 


(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 regarding 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.


 


37.2       Service of process


 


Without prejudice to any other mode of service
allowed under any relevant law, each Obligor party hereto:


 


(a)             irrevocably appoints International Petroleum Services
Corporation Limited of 1/F., Sunning Plaza, 10 Hysan Avenue, Causeway Bay, Hong
Kong as its agent for service of process in relation to any proceedings before
the Hong Kong courts in connection with any Finance Document; and


 


(b)             agrees that failure by a process agent to notify that
Obligor of any process will not invalidate the proceedings concerned.


 


37.3       Waiver of immunity


 


Each Obligor party hereto waives generally all
immunity it or its assets or revenues may otherwise have in any jurisdiction,
including immunity in respect of:


 


(a)             the giving of any relief by way of injunction or order
for specific performance or for the recovery of assets or revenues; and/or


 


(b)             the issue of any process against its assets or
revenues for the enforcement of a judgment or, in an action in rem, for the
arrest, detention or sale of any of its assets and revenues.


 


38.         EFFECTIVENESS


 


This Agreement shall take effect as from the
date of this Agreement.


 


39.         REGISTRATION AND APPROVALS


 


39.1       Foreign debt registration


 


To the extent that any indebtedness of the
Borrower under this Agreement constitutes or 


 


132

















 


becomes “foreign debt” for the purposes of PRC
laws and regulations, the Borrower shall, in accordance with the requirements
under Article 18 of Chapter 3 of the Foreign Exchange Administration
Regulations of the PRC as amended and promulgated on 5 August 2009, effect
foreign debt registration in respect of this Agreement with the relevant local
branch of SAFE.  The registration
documentation issued by the relevant local branch of SAFE shall become one of
the essential legal documents in connection with this Agreement.


 


39.2       Approvals and other procedures


 


(a)             To the extent that any indebtedness of the Borrower
under this Agreement constitutes or becomes “foreign debt” for the purpose of
PRC laws and regulations, without prejudice to or modifying any of the
obligations of the Borrower hereunder, the Borrower shall ensure that all
approvals required by the competent authorities of the PRC responsible for the
administration of foreign exchange in respect of all the payment obligations of
the Borrower in foreign exchange under the Finance Documents (including,
without limitation, payment of interest and principal repayment) will be
obtained in a timely manner.


 


(b)             Without prejudice to the generality of paragraph (a),
to the extent that any indebtedness of the Borrower under this Agreement
constitutes or becomes “foreign debt” for the purposes of PRC laws and
regulations, the Borrower shall comply with the procedures for the repayment of
principal and payment of interest in respect of foreign debts in accordance
with the Provisions Governing the Administration of the Settlement, Sale and
Payment of Foreign Exchange promulgated in 1996 and other applicable PRC laws
and regulations and SAFE requirements, if any.


 


40.         LANGUAGE


 


This Agreement is written and executed in the
English language.  In the event that the
Borrower is required, for the purpose of its compliance with the requirements
of the laws of the PRC, to submit to any PRC authority (including, without
limitation, SAFE) a Chinese translation of this Agreement or a summary in the
Chinese language of the terms hereof, the Borrower shall (a) do so at its
own costs; (b) ensure that any translation or summary so prepared by it is
accurate; (c) forward to the Facility Agent in sufficient copies for the
Lenders copies of such translation or summary at the time when the Borrower
submits the same to any PRC authority; and (d) indemnify each Finance
Party against any liability which such Finance Party may sustain or incur by
reason of any inaccuracy of any translation or summary prepared by the
Borrower.


 


This Agreement has been
entered into on the date stated at the beginning of this Agreement.


 


133

















 


SCHEDULE 1


THE ORIGINAL TRANCHE ONE LENDERS


 


	
  Name of Original Lender

  	
   

  	
  Commitment (US$)

  	
   

  
	
  Deutsche Bank AG, Hong
  Kong Branch

  	
   

  	
  12,000,000

  	
   

  
	
  Triple Wise Asset
  Holdings Ltd.

  	
   

  	
  22,000,000

  	
   

  
	
  Sequoia Capital
  China Growth Fund I, L.P.

  	
   

  	
  10,466,400

  	
   

  
	
  Sequoia Capital
  China Growth Partners Fund I, L.P.

  	
   

  	
  249,600

  	
   

  
	
  Sequoia Capital
  China GF Principals Fund I, L.P.

  	
   

  	
  1,284,000

  	
   

  
	
  Good Merit
  International Limited

  	
   

  	
  4,000,000

  	
   

  
	
   

  	
   

  	
  Total:
  50,000,000

  	
   

  



 


134

















 


SCHEDULE 2


CONDITIONS PRECEDENT FOR INITIAL UTILISATION


 


1.           Obligors (other than the Sponsor)


 


In respect of each Obligor (other than the
Sponsor):


 


(a)             A
copy of the constitutional documents of that Obligor including without
limitation:


 


(i)           in the case of each Obligor incorporated in the
British Virgin Islands:


 


(A)       its certificate of incorporation and its current
memorandum of association and articles of association; and


 


(B)       the registered agent’s certificate certifying, among
other things, register of members, register of directors and officers, register
of mortgages and charges and good standing of that Obligor;


 


(ii)          in the case of each Obligor incorporated in Hong Kong:


 


(A)       its certificate of incorporation (and each certificate
of change of name); and


 


(B)       its memorandum and articles of association; and


 


(C)       its current (renewed) business registration
certificate that is in full force and effect; and


 


(iii)         in the case of each Obligor incorporated in the PRC:


 


(A)       its articles of association and any amendments
thereof;


 


(B)       approval letter issued by MOFCOM of Tianjin in respect
of its articles of association;


 


(C)       its certificate of approval for establishment of
enterprises with foreign investment issued by MOFCOM of Tianjin;


 


(D)       its business licence issued by SAIC;


 


(E)        its organisation code certificate;


 


(F)        its local tax registration certificate issued by the
relevant local taxation bureau;


 


(G)       its state tax registration certificate issued by the
relevant local taxation bureau;


 


(H)       its foreign exchange registration certificate issued
by SAFE; and


 


135

















 


(I)         capital verification reports issued by certified
public accountants confirming that the registered capital of the Borrower has
been paid up in full.


 


(b)            Copies
of the resolution(s) of the board of directors of that Obligor:


 


(i)           approving the terms of, and the transactions
contemplated by, the Transaction Documents to which it is a party and resolving
that it execute the Transaction Documents to which it is a party;


 


(ii)          authorising a specified person or persons to execute
the Transaction Documents to which it is a party on its behalf;


 


(iii)         (without prejudice to the foregoing) approving
increases in the aggregate principal amount of the Facility (pursuant to Lender
Accession Memorandum(s) delivered or to be delivered) up to US$65,000,000;
and


 


(iv)        authorising a specified person or persons, on its
behalf, to sign and/or despatch all documents and notices (including, if
relevant, any Utilisation Request) to be signed and/or despatched by it under
or in connection with the Transaction Documents to which it is a party.


 


(c)             A
specimen of the signature of each person authorised by the resolution(s) of
the board of directors of that Obligor referred to in paragraph (b) above.


 


(d)            (In
the case of Parentco) a copy of a resolution signed by all the holders of the
issued shares in Parentco approving the terms of, and transactions contemplated
by, the Transaction Documents to which it is a party.


 


(e)             A
certificate of that Obligor (signed on behalf of that Obligor by a person
authorised by the board of directors of that Obligor) confirming that
borrowing, guaranteeing or securing, as appropriate, the Total Commitments
(including without limitation any increase thereto pursuant to the delivery of
Lender Accession Memorandum(s)) would not cause any borrowing, guaranteeing or
similar limit binding on that Obligor to be exceeded.


 


(f)             A
certificate of an authorised signatory of that Obligor certifying that each
copy document specified in this Schedule 2 and/or any document or evidence
delivered hereunder in copy form is correct, complete and in full force and
effect as at a date no earlier than the date of this Agreement.


 


2.           Sponsor


 


A copy (certified by the Sponsor to be true,
complete and up-to-date) of the personal identification card, the passport and
the household register of the Sponsor.


 


3.           Transaction Documents


 


(a)             Each
of the Finance Documents duly executed by the parties thereto, except for the
Security Documents.


 


136

















 


(b)            Each
of the following Security Documents, duly executed by the parties thereto:


 


(i)           the Security Trust Deed;


 


(ii)          the Share Charge over Holdco;


 


(iii)         the Equity Pledge over Borrower;


 


(iv)        the Holdco Debenture (incorporating a share charge
over all of the shares in Parentco);


 


(v)         the Parentco Debenture;


 


(vi)        the Account Control Agreement;


 


(vii)       the Mortgage over LHD Units in respect of the Existing
LHD Unit;


 


(viii)      the Pledge over Receivables in respect of the Current
LHD Contracts;


 


(ix)         a Subordination Deed entered into between Premium Sino
as subordinated borrower, Wise Worldwide as subordinated lender and the
Security Agent with respect to any indebtedness from time to time owing by
Premium Sino to Wise Worldwide (including any indebtedness under the
Intercompany Loan Agreement); and


 


(x)          a Subordination Deed entered into between Parentco as
subordinated borrower, the Sponsor as subordinated lender and the Security
Agent with respect to any indebtedness from time to time owing by Parentco to
the Sponsor.


 


(c)             All
documents and evidence required, pursuant to the terms of any of the Security
Documents referred to in paragraph (b) above, to be delivered promptly
upon execution of such Security Document or otherwise prior to the Initial
Utilisation Date.


 


(d)            Each
of the Transaction Warrant Documents duly executed by the parties thereto.


 


4.           Legal opinions


 


(a)             A
legal opinion of Clifford Chance, Hong Kong legal advisers to the Arranger in
form and substance satisfactory to the Facility Agent.


 


(b)            A
legal opinion of King and Wood, legal advisers in the PRC to the Arranger in
form and substance satisfactory to the Facility Agent.


 


(c)             A
legal opinion of Walkers, legal advisers in the British Virgin Islands to the
Arranger in form and substance satisfactory to the Facility Agent.


 


5.           Business


 


(a)             Evidence
that the available foreign debt quota of the Borrower is not less than US$50,000,000.


 


137














 


(b)            Evidence
that the articles of association of the Borrower have been amended in form and
substance satisfactory to the Facility Agent.


 


(c)             Copies
of the Current LHD Contracts and the Current MD Contracts.


 


(d)            Copies
of LHD Contracts signed by the Borrower and third party customers (that provide
for the use and deployment of at least 2 LHD Units that are the subject of the
Upcoming LHD Acquisition Agreement (such LHD Units being “Upcoming LHD Units” and such LHD Contracts
being “Upcoming LHD Contracts”),
which LHD Units are not Financed LHD Units and Existing LHD Units) which
Upcoming LHD Contracts comply with the LHD Contract Requirements and the
requirements of Clause 21.20 (Material Contracts).


 


(e)             Copies
of memorandum(s) of understanding signed by the Borrower and at least two
third party customers in respect of Financed LHD Contracts for the use and
deployment of 6 Financed LHD Units and which comply (x) (in respect of at
least 3 Financed LHD Units) with the LHD Contract Requirements and (y) the
requirements of Clause 21.20 (Material Contracts).


 


(f)             A
copy of the Technology Transfer (Patent) Contract dated 29 September 2009
entered into between the Borrower and the Patent Owner (the “MD Patent Acquisition Agreement”).


 


(g)            Undertaking
from Sponsor in favour of the Borrower and the Group that the Sponsor does not
and will not engage in any business competing with the Borrower or the Group
whether in or outside the PRC (“Sponsor
Non-Compete Undertaking”).


 


(h)            Amendments
to the LHD Exclusivity Agreement in agreed form, which amendments should
include (among other things) the addition of Trinity Energy Holdings, LLC (“Trinity”) as a party to the LHD Exclusivity
Agreement, the undertaking by Trinity (in such amended LHD Exclusivity
Agreement) to ensure that none of it or its existing or future Subsidiaries
(other than Power Hydraulics) will have the right to exercise all or any part
of the exclusive marketing right assigned to it or them by Daniel Jacobson
under the Assignment of Exclusive Marketing Agreement dated 2 June 2009
and entered into between Daniel Jacobson and Redial Drilling Technologies I,
LLC.


 


(i)              Evidence
of physical loss and damage, all risks and machinery breakdown insurance on
each of the Existing LHD Units (in each case for full reinstatement value
thereof) (to the extent that such insurance is available on reasonable
commercial terms).


 


(j)              A
copy of the Financed
LHD Acquisition Agreement, with
a total purchase consideration for each LHD Unit not exceeding RMB46,000,000.


 


(k)             A
copy of the sale and purchase
documentation between the LHD Vendor and Power
Hydraulics in respect of the sale and purchase of the
Financed LHD Units (“Power Hydraulics
Financed LHD Supply Contract”).


 


138

















 


(l)              A
copy of the Upcoming
LHD Acquisition Agreement.


 


(m)            A
copy of a supplemental agreement (relating to the Upcoming LHD Acquisition
Agreement) providing for a 1-year warranty for the Upcoming LHD Units from the LHD Vendor to the Borrower.


 


(n)            A
copy of the sale and purchase
documentation between the LHD Vendor and Power Hydraulics
in respect of the sale and purchase of the Upcoming LHD Units (“Power Hydraulics Upcoming LHD Supply Contract”
and, together with the Power Hydraulics Financed LHD Supply Contract, the “Power Hydraulics Supply Contracts”).


 


6.           Other documents and evidence


 


(a)             The
Group Structure Chart.


 


(b)            A
copy of the Original Financial Statements.


 


(c)             The
Base Case Model.


 


(d)            Evidence (including without limitation the account
numbers) that the following accounts have been opened and maintained by the
Borrower (and, in the case of the LHD Vendor Joint Account, the Borrower and
the LHD Vendor):


 


(i)           the Onshore Controlled
Account;


 


(ii)          the Onshore USD Project
Account;


 


(iii)         the Onshore RMB Project Account;


 


(iv)        the
Onshore Cash Collateral Account;


 


(v)         the DSRA; and


 


(vi)        the LHD Vendor Joint Account.


 


(e)             Evidence
that the Borrower is one of the signatories to the LHD Vendor Joint Account
whose consent is required to authorise any withdrawal from such account.


 


(f)             Evidence
(including without limitation the account numbers) that the Parentco Controlled
Account has been opened and maintained by Parentco.


 


(g)            The
Approved Project Capex Schedule.


 


(h)            The
Approved Opex Budget and the Approved Capex Budget in respect of the Initial
Budget Period.


 


(i)              A
copy (certified by the Borrower to be true, complete and up-to-date) of the
foreign debt registration certificate issued by SAFE in respect of the Facility
provided under this Agreement.


 


139

















 


(j)              A
copy of the application to MOFCOM for approval of the Equity Pledge over
Borrower.


 


(k)             A
copy of the application to SAFE for registration and to MOFCOM for approval of
the Mortgage over LHD Units.


 


(l)              A
copy of the application to SAFE for registration and to MOFCOM for approval of
the Pledge over Receivables.


 


(m)            Evidence
of the discharge of (i) the memorandum of charge dated 19 June 2008
granted by Premium Sino in favour of UOB Kay Hian Finance Limited and (ii) the
underlying liabilities owed by premium Sino to UOB Kay Hian Finance Limited to
which the foregoing memorandum of charge relates.


 


(n)            All
documentation and other evidence as is reasonably requested by the Facility
Agent (for any or all of the Finance Parties) in order for any or all of the
Finance Parties to carry out and be satisfied with the results of all necessary
“know your customer”, anti-money laundering and/or other similar checks under
all applicable laws and regulations in connection with any or all the Finance
Documents and/or the transactions contemplated thereunder.


 


(o)            Evidence
that each of the process agents (which is not a member of the Group) referred
to in Clause 37.2 (Service of Process)
and/or in any other Finance Documents has accepted its appointment.


 


(p)            Evidence
that the fees, costs and/or expenses then due from any Obligor pursuant to
Clause 17 (Costs and expenses)
and/or Clause 13.5 (Stamp taxes)
and/or any Fee Letter have been paid or will be paid by the date falling 10
Business Days after the Initial Utilisation Date.


 


(q)            A
copy of any other Authorisation or other document, opinion or assurance which
the Facility Agent considers to be necessary or desirable (if it has notified
the Borrower accordingly) in connection with (i) the entry into and/or
performance of the transactions contemplated by any Transaction Finance
Document and/or (ii) for the legality, validity and/or enforceability of
any Transaction Finance Document.


 


SCHEDULE 3


FORM OF UTILISATION REQUEST


 


	
  From:

  	
  [name of Borrower]

  
	
   

  	
   

  
	
  To:

  	
  [name of
  Facility Agent] as Facility Agent

  
	
   

  	
   

  
	
  Dated:

  	
   

  



 


Dear Sirs


 


140

















 


Facility
Agreement dated [                          ]
and made between, among others, Tianjin New Highland Science and Technology
Development Co., Ltd. as Borrower and Deutsche Bank AG, Hong Kong Branch
as Arranger and the Facility Agent (as amended and restated pursuant to an
amendment agreement dated [           ] and a second amendment agreement dated [      ]
and as
amended from time to time, the “Facility Agreement”)


 


1.           We refer to the Facility Agreement.  This is a Utilisation Request.  Terms defined in or construed for the
purposes of the Facility Agreement have the same meaning in this Utilisation
Request unless given a different meaning in this Utilisation Request.


 


2.           We wish to borrow a Loan under Tranche [              ]
on the following terms:


 


	
   

  	
  Proposed Utilisation Date:

  	
   

  	
  [          ]
  (or, if that is not a Business Day, the next Business Day)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Currency of Loan:

  	
   

  	
  US dollars

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Amount:

  	
   

  	
  [        ]
  or, if less, the Available Facility for the above-mentioned Tranche

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Interest Period:

  	
   

  	
  Six Months, subject to the provisions of the
  Agreement

  



 


3.           We confirm that each condition specified in Clause 5.2
(Further conditions precedent) of
the Facility Agreement is satisfied on the date of this Utilisation Request.


 


4.           The proceeds of this Loan shall be deposited into the
following account of the Borrower: insert account details of
the Onshore USD Project Account.


 


5.           This Utilisation Request is irrevocable.


 


	
   

  	
  Yours faithfully

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  authorised signatory for

  	
   

  
	
   

  	
  [name of Borrower]

  	
   

  



 


141

















 


SCHEDULE 4


FORM OF TRANSFER CERTIFICATE


 


	
  To:

  	
  [name of
  Facility Agent] as Facility Agent

  
	
   

  	
   

  
	
   

  	
  [name of
  Security Agent] as Security Agent

  
	
   

  	
   

  
	
  From:

  	
  [The
  Existing Lender] (the “Existing
  Lender”) and [The New Lender]
  (the “New Lender”)

  
	
   

  	
   

  
	
  Dated:

  	
   

  



 


Facility Agreement dated [                   ]
and made between, among others, Tianjin New Highland Science and Technology
Development Co., Ltd. as Borrower and Deutsche Bank AG, Hong Kong Branch
as Arranger and the Facility Agent (as amended and restated pursuant to an
amendment agreement dated [               ] and a second amendment agreement dated [               ]  and as amended from time to time, the “Facility Agreement”)


 


Security Trust Deed dated [                 ]
between, among others, Deutsche Bank AG, Hong Kong Branch as facility agent,
Deutsche Bank AG, Hong Kong Branch as facility calculation agent, DB Trustees
(Hong Kong) Limited as security trustee and Deutsche Bank AG, Hong Kong Branch
as arranger (as amended from time to time, the “Security Trust Deed”)


 


1.           We refer to the Facility Agreement and the Security
Trust Deed. This is a Transfer Certificate. Terms defined in or construed for
the purposes of the Security Trust Deed have the same meaning in this Transfer
Certificate unless given a different meaning in this Transfer Certificate,
provided that for the purposes of paragraph 2 and the Schedule hereto, terms
defined in or construed for the purposes of the Facility Agreement have the
same meaning in paragraph 2 and the Schedule hereto unless otherwise defined in
this Transfer Certificate.


 


2.           We refer to Clause 23.5 (Procedure for transfer) of the Facility Agreement:


 


(a)             The
Existing Lender and the New Lender agree to the Existing Lender transferring to
the New Lender by novation all or part of the Existing Lender’s Commitment in
respect of any or all of the Tranches (including the commitment represented
thereby), and rights and obligations referred to in the Schedule, in accordance
with Clause 23.5 (Procedure for transfer)
of the Facility Agreement.


 


(b)             The Existing Lender hereby assigns to the New Lender,
with effect from the Transfer Date, a portion of the rights held by it (in its
capacity as Lender) under or in connection with the Finance Documents (other
than the Facility Agreement) which corresponds with the rights and obligations
under the Facility Agreement transferred pursuant hereto.


 


(c)             The proposed Transfer Date is [          ].


 


(d)             The Facility Office(s) and address, fax number
and attention details for notices 


 


142

















 


of the New Lender for the purposes of Clause 30.2 (Addresses) of the Facility Agreement and
Clause 15.2 (Addresses for notice)
of the Security Trust Deed are set out in the Schedule.


 


3.           The New Lender agrees to become party to the Security
Trust Deed as a “Lender” pursuant to Clause 9.2 (Accession of New Lender) of the Security Trust Deed.


 


4.           The New Lender expressly acknowledges the limitations
on the obligations of (a) the Existing Lender and/or the other Finance
Parties set out in Clause 23.4 (Limitation
of responsibility of Existing Lenders) of the Facility Agreement and
(b) the Existing Lender and the other Secured Parties set out in Clause
9.3 (Limitation of responsibility of
Existing Lender and Secured Parties) of the Security Trust Deed.


 


5.           This Transfer Certificate may be executed in any
number of counterparts and this has the same effect as if the signatures and/or
execution on the counterparts were on a single copy of this Transfer
Certificate.


 


6.           This Transfer Certificate is governed by and construed
in accordance with the laws of Hong Kong.


 


THE
SCHEDULE


 


Commitment(s)/rights
and obligations to be transferred


 


Commitment(s)/rights and obligations to be
transferred:


 


	
  Tranche: [         ]

  
	
  Commitment under
  such Tranche to be transferred: [         ]

  
	
  Participation in
  Loan(s) under such Tranche to be transferred: [         ]

  



 


and rights and obligations under the Facility
Agreement as a Lender corresponding to the above-mentioned Commitment and/or
participation in Loan(s)*


 


Administration Details:


 


New Lender’s receiving account: [         ]


Address: [         ]


Telephone: [         ]


Facsimile: [         ]


Attn/Ref: [         ]


 


IN WITNESS WHEREOF this Transfer Certificate has been duly executed by
the Existing Lender and the New Lender and shall (for the purposes of the Security
Trust Deed and accession of the New Lender thereto) take effect as a deed and
is intended to be delivered and is hereby delivered on the date first above
written.


 






*
Repeat for each relevant Tranche.


 


143

















 


	
  [THE COMMON SEAL of

  	
  )

  
	
  [the Existing Lender]

  	
  )

  
	
  was hereunto affixed

  	
  )

  
	
  in the presence of

  	
  )

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Name of witness)

  	
   

  
	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  [SIGNED, SEALED and DELIVERED

  	
  )

  
	
  as a DEED for and on behalf of

  	
  )

  
	
  [the Existing Lender]

  	
  )

  
	
  by

  	
  )

  
	
  [name of
  signatory]

  	
  )]

  
	
   

  	
   

  
	
   

  	
   

  
	
  [THE COMMON SEAL of

  	
  )

  
	
  [the New Lender]

  	
  )

  
	
  was hereunto affixed

  	
  )

  
	
  in the presence of

  	
  )

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Name of witness)

  	
   

  
	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  [SIGNED, SEALED and DELIVERED

  	
  )

  
	
  as a DEED for and on behalf of

  	
  )

  
	
  [the New Lender]

  	
  )

  
	
  by

  	
  )

  
	
  [name of
  signatory]

  	
  )]

  



 


 


This Transfer Certificate is accepted by the
Facility Agent and the Transfer Date is confirmed as [         ].


 


[name of
Facility Agent] as Facility Agent


 


By:


 


144

















 


SCHEDULE 5


FORM OF COMPLIANCE CERTIFICATE


 


	
  From:

  	
  [name of Borrower]

  
	
   

  	
   

  
	
  To:

  	
  [name of
  Facility Agent] as Facility Agent

  
	
   

  	
   

  
	
  Dated:

  	
   

  



 


Dear Sirs


 


Facility Agreement dated [                  ]
and made between, among others, Tianjin New Highland Science and Technology
Development Co., Ltd. as Borrower and Deutsche Bank AG, Hong Kong Branch
as Arranger and the Facility Agent (as amended and restated pursuant to an
amendment agreement dated [             ] and a second amendment agreement dated [             ]
and as amended from time to time, the “Facility Agreement”)


 


1.           We refer to the Facility Agreement. This is a
Compliance Certificate. Terms defined in or construed for the purposes of the
Facility Agreement have the same meaning in this Compliance Certificate unless
given a different meaning in this Compliance Certificate


 


2.           We confirm that:


 


[insert
details of financial covenants and whether such financial covenants have been
complied with]


 


Computations demonstrating such financial
covenants are attached to this Compliance Certificate.


 


3.           We confirm that:


 


(a)             as at the commencement of the Relevant Period ending [         ],
the Injection Amount (as defined in Clause 20.1 (Financial definitions) of the Facility Agreement) is [         ];
and


 


(b)            as at the end of such Relevant Period, the Injection
Amount (as so defined) is [         ].


 


Computations demonstrating
the same are attached to this Compliance Certificate.


 


4.           We confirm that no Default is continuing.*


 


Signed:


 


 


	
   

  	
   

  



name and title


For and on behalf of


[name of Borrower]


 






* If this statement cannot be made, the Compliance
Certificate should identify each of the Defaults that are continuing and the
steps, if any, being taken to remedy the same.


 


145

















 


	
   

  	
   

  



name and title


For and on behalf of


[name of Borrower]


 


146

















 


SCHEDULE 6


BANK ACCOUNTS


 


1.           Accounts


 


(a)             With effect from no later than the delivery of the
first Utilisation Request under this Agreement, the Borrower shall maintain the
following accounts at all times:


 


(i)        the Onshore Controlled Account;


 


(ii)       the Onshore USD Project Account;


 


(iii)      the Onshore RMB Project Account;


 


(iv)      the Onshore Cash Collateral Account;


 


(v)       the DSRA; and


 


(vi)      the LHD Vendor Joint Account (provided that the LHD
Vendor Joint Account shall be jointly established and maintained by the
Borrower and the LHD Vendor).


 


(b)            With effect from no later than the delivery of the
first Utilisation Request under this Agreement, Parentco shall maintain the
Parentco Controlled Account at all times.


 


(c)             None of the accounts referred to in this paragraph 1
may go into overdraft.


 


(d)            The Facility Agent shall (through the Security Agent)
notify the AM of the DSRA Amount and the RMB equivalent thereof (calculated
using the DSRA Determination Exchange Rate as at the latest date of
determination by the Facility Agent pursuant to paragraph (b) or (c) of
Clause 9.4 (Notification of rates of
interest and DSRA Amount)) in accordance with Clause 9.4 (Notification of rates of interest and DSRA Amount)).
AM shall be entitled to rely on the latest such notification from the Facility
Agent or Security Agent for the purpose of any applicable transfer contemplated
by this Schedule 6.  Such notification by
the Facility Agent or the Security Agent shall not in any way affect the
obligation of any Obligor to pay any amount that is due and payable under any
Transaction Document in the applicable currency in which such amount is due and
payable.


 


2.           Onshore Controlled Account


 


(a)             Main operating account


 


The Onshore Controlled Account shall be the
main operating account of the Borrower.


 


(b)            Receipts


 


The Borrower shall ensure that all sale
proceeds and other amounts received or recovered under the Borrower’s contracts
with its customers (including without


 


147














 


limitation all LHD Contracts and MD Contracts)
shall be deposited directly into the Onshore Controlled Account (and, if
otherwise received or recovered by the Borrower in any manner other than by
direct payment into the Onshore Controlled Account, shall be transferred into
the Onshore Controlled Account within 3 Business Days of such receipt or
recovery).


 


(c)             Withdrawals


 


Without prejudice to the rights of the Security
Agent under the Security Documents:


 


(i)        subject to paragraphs
(l) and (m), the Borrower may (but may only) request for a withdrawal from
the Onshore Controlled Account in accordance with paragraph (d), (f), (h), (i),
(j) or (k); and


 


(ii)       any withdrawal or
transfer from, and any other instructions relating to, the Onshore Controlled
Account must be authorised by the AM in writing in order for the same to be
effective.


 


(d)            Withdrawals - Operating Expenditure


 


The Borrower may by not less than 3 Business
Days’ prior written notice to the AM (with a copy to each of the Facility Agent
and the Security Agent), request the AM to authorise a withdrawal from the
Onshore Controlled Account for the payment of Operating Expenditure incurred by
the Borrower pursuant to an Opex Withdrawal Request duly completed and executed
by the Borrower.  Subject to paragraphs (l) and
(m), the AM shall authorise such withdrawal if:


 


(i)        the proposed amount,
the proposed date of withdrawal and payment instructions containing the details of the payee of such amount (“Opex Payee”) are specified in such Opex
Withdrawal Request; and


 


(ii)       the Borrower
certifies in such Opex Withdrawal Request (A) that the amount to be so
withdrawn shall be applied towards Operating Expenditure incurred by the
Borrower
and (B) that no amount has
been previous withdrawn or transferred from the Onshore Controlled Account for
such Operating Expenditure; and


 


(iii)      either:


 


(A)          the amount to be so
withdrawn, when aggregated with all other amounts withdrawn and/or requested to
be withdrawn (pursuant to Opex Withdrawal Requests) from the Onshore Controlled
Account during the calendar month in which such first-mentioned withdrawal is
to occur (excluding any amount approved pursuant to paragraph (d)(iii)(B)),
does not exceed the Permitted Opex Limit for such month; or


 


(B)          the amount to be so
withdrawn has been approved by the Facility Agent (acting on the instructions
of the Majority Lenders) upon 


 


148

















 


written application (with no less than 10 Business Days’ notice prior to
the proposed date of such withdrawal) by the Borrower, it being expressly
stated in such application stating that it is an application for approval of a
one-off withdrawal pursuant to this paragraph (d)(iii)(B) during the
applicable calendar month in which such withdrawal is proposed to occur.


 


Any amount so
withdrawn shall be paid directly from the Onshore Controlled Account to the
applicable Opex Payee in accordance with the payment instructions set out in
such Opex Withdrawal Request. For the avoidance of doubt, and without prejudice
to any paragraphs in this Schedule, the Borrower may be an Opex Payee.


 


(e)             Permitted Opex Limit


 


(i)        The “Permitted Opex Limit” for each month shall
be the sum of:


 


(A)         the aggregate amount of
approved Operating Expenditure for such month which is permitted to be funded
from the Onshore Controlled Account as set out in the Approved Opex Budget for
such month; and


 


(B)          any Unusued Opex Limit
for the immediately previous month as determined in accordance with paragraph
(e)(ii).


 


For the purposes
of the month in which the Initial Utilisation Date occurs, the amount in
paragraph (B) shall be deemed to be zero.


 


(ii)       With effect from the
Initial Utilisation Date:


 


(A)         if any amount is
withdrawn and/or transferred from the Onshore Controlled Account during a
calendar month in connection with any Opex Withdrawal Request (excluding any
amount approved pursuant to paragraph (d)(iii)(B)), the Borrower shall be
deemed to have utilised the Permitted Opex Limit for such month to the extent
of such amount so withdrawn or transferred (and within such
Permitted Opex Limit for such month, the Borrower shall be deemed to have
utilised the portion thereof falling within paragraph (B) of the
definition of “Permitted Opex Limit” first prior to utilising the portion
thereof falling with paragraph (A) of the definition of “Permitted Opex Limit”); and


 


(B)          to the extent that, as
at the end of a month, any portion of the Permitted Opex Limit for such month (falling within paragraph (A) of the definition of “Permitted Opex
Limit”) remains unutilised by the Borrower (as determined in accordance with
paragraph (e)(ii)(A)), such unutilised portion of the Permitted Opex Limit for
such month (falling within paragraph (A) of the
definition of “Permitted Opex Limit”) shall constitute the “Unused Opex Limit” for such month. For the avoidance of 


 


149

















 


doubt, any unutilised portion of the
Permitted Opex Limit for any month falling within paragraph (B) of the
definition of “Permitted Opex Limit” shall not form any part of the Unused Opex
Limit for such month.


 


(f)             Withdrawals - Capital Expenditure


 


The Borrower may by not less than 3 Business
Days’ prior written notice to the AM (with a copy to each of the Facility Agent
and the Security Agent), request the AM to authorise a withdrawal from the
Onshore Controlled Account for the payment of Capital Expenditure incurred by
the Borrower pursuant to a Capex Withdrawal Request duly completed and executed
by the Borrower.  Subject to paragraphs (l) and
(m), the AM shall authorise such withdrawal if:


 


(i)        the proposed amount,
the proposed date of withdrawal, payment instructions containing the details of the payee of such amount (“Capex Payee”), and the details of the
contract between the Borrower and such Capex Payee under which such Capital
Expenditure is incurred (“Capex Contract”)
are specified in such Capex Withdrawal Request (provided that where such Capex
Payee is the LHD Vendor, such payment instructions must specify that such
amount so withdrawn must be directly paid into the LHD Vendor Joint Account);


 


(ii)       the Borrower
certifies in such Capex Withdrawal Request:


 


(A)          that the amount to be
so withdrawn shall be applied towards Capital Expenditure incurred by the
Borrower;


 


(B)          the nature of such
Capital Expenditure;


 


(C)          whether such Capital
Expenditure constitutes Project Capital Expenditure (in the event where the
Borrower certifies in such Capex Withdrawal Request that such Capital
Expenditure is Project Capital Expenditure, such Capex Withdrawal Request shall
be a “Special Capex Withdrawal Request”,
and in the event where the Borrower certifies in such Capex Withdrawal Request
that such Capital Expenditure is not Project Capital Expenditure, such Capex
Withdrawal Request shall be a “General Capex
Withdrawal Request”) (provided that in the case of a Special Capex
Withdrawal Request, such Capex Payee must be the LHD Vendor); and


 


(D)          that no amount has been
previous withdrawn or transferred from the Onshore Controlled Account, the
Onshore USD Project Account or the Onshore RMB Project Account for such Capital
Expenditure;


 


(iii)      such Capex Withdrawal
Request is accompanied by (in the case of a Special Capex Withdrawal Request):


 


150

















 


(A)         a copy of the invoice
(for an amount not less than such amount to be so withdrawn) issued by the LHD
Vendor to the Borrower, which invoice must be an invoice under the Financed LHD
Acquisition Agreement or, as the case may be, the Upcoming LHD Acquisition
Agreement or (in the case of a General Withdrawal Request) a copy of the
invoice (for an amount not less than such amount to be so withdrawn) issued by
such Capex Payee; and


 


(B)          a copy of the invoice
(for an amount not less than such amount to be so withdrawn or the equivalent
thereof in US dollars) from Power Hydraulics to the LHD Vendor, which invoice
must be an invoice under the Power Hydraulics Financed LHD Supply Contact (in
the case where an invoice relating to the Financed LHD Acquisition Agreement is
delivered under paragraph (iii)(A)) or the Power Hydraulics Upcoming LHD Supply
Contract (in the case where an invoice relating to the Financed LHD Acquisition
Agreement is delivered under paragraph (iii)(A));


 


(iv)      (in the case of a Special
Capex Withdrawal Request) either:


 


(A)          the amount to be so
withdrawn, when aggregated with (x) all other amounts withdrawn and/or
requested to be withdrawn (pursuant to Special Capex Withdrawal Requests) from
the Onshore Controlled Account during the calendar month in which such
first-mentioned withdrawal is to occur (but excluding any amount approved
pursuant to paragraph (f)(iv)(B)) and (y) all amounts withdrawn and/or
requested to be withdrawn from the Onshore RMB Project Account pursuant to
paragraph 3(e) during the calendar month in which such first-mentioned
withdrawal is to occur (but excluding any amount approved pursuant to paragraph
3(e)(iv)(B)), does not exceed the Permitted Project Capex Limit (as defined in
paragraph 3(f)) for such month; or


 


(B)          the amount to be so withdrawn
has been approved by the Facility Agent (acting on the instructions of the
Majority Lenders) upon written application (with no less than 10 Business Days’
notice prior to the proposed date of such withdrawal) by the Borrower, it being
expressly stated in such application stating that it is an application for
approval of a one-off withdrawal pursuant to this paragraph (f)(iv)(B) during
the applicable calendar month in which such withdrawal is proposed to occur;
and


 


(v)       (in the case of a General
Capex Withdrawal Request) either:


 


(A)          the amount to be so
withdrawn, when aggregated with all other amounts withdrawn and/or requested to
be withdrawn (pursuant to General Capex Withdrawal Requests) from the Onshore 


 


151

















 


Controlled Account during the calendar month in which such
first-mentioned withdrawal is to occur (but excluding any amount approved
pursuant to paragraph (f)(v)(B)), does not exceed the Permitted Capex Limit for
such month; or


 


(B)          the amount to be so
withdrawn has been approved by the Facility Agent (acting on the instructions
of the Majority Lenders) upon written application (with no less than 10
Business Days’ notice prior to the proposed date of such withdrawal) by the
Borrower, it being expressly stated in such application stating that it is an
application for approval of a one-off withdrawal pursuant to this paragraph
(f)(v)(B) during the applicable calendar month in which such withdrawal is
proposed to occur,


 


provided that no
withdrawal shall be made from the Onshore Controlled Account pursuant to or in
respect of any Special Capex Withdrawal Request unless the balance standing to both Onshore
Project Accounts will be zero (after giving effect to any withdrawal from the
Onshore RMB Project Account but disregarding, at any time prior to the last day
of the first Interest Period for the first Loan, any DSRA Amount retained in
the Onshore USD Project Account in accordance with paragraph 3(d)(i)(A)) on the
proposed date of withdrawal specified in such Special Capex Withdrawal Request.


 


Any amount so withdrawn shall be paid directly
from the Onshore Controlled Account to the applicable Capex Payee in accordance
with the payment instructions set out in such Capex Withdrawal Request
(provided that where such Capex Payee is the LHD Vendor, such amount so
withdrawn must be directly paid into the LHD Vendor Joint Account).


 


(g)            Permitted Capex Limit


 


(i)        The “Permitted Capex Limit” for each month shall
be the sum of:


 


(A)         the aggregate amount of
approved Capital Expenditure for such month which is permitted to be funded
from the Onshore Controlled Account as set out in the Approved Capex Budget for
such month; and


 


(B)          any Unusued Capex Limit
for the immediately previous month as determined in accordance with paragraph
(g)(ii).


 


For the purposes
of the month in which the Initial Utilisation Date occurs, the amount in
paragraph (B) shall be deemed to be zero.


 


(ii)       With effect from the
Initial Utilisation Date:


 


(A)         if any amount is
withdrawn and/or transferred from the Onshore Controlled Account during a
calendar month in connection with any General Capex Withdrawal Request (but
excluding any amount approved pursuant to paragraph (f)(v)(B)), the Borrower 


 


152

















 


shall be deemed to have utilised the Permitted Capex Limit for such
month to the extent of such amount so withdrawn or transferred; (and within such Permitted Capex Limit for such
month, the Borrower shall be deemed to have utilised the portion thereof
falling within paragraph (B) of the definition of “Permitted Capex Limit”
first prior to utilising the portion thereof falling with paragraph (A) of
the definition of “Permitted Capex Limit”); and


 


(B)          to the extent that, as
at the end of a month, any portion of the Permitted Capex Limit for such month (failing within paragraph (A) of the definition of “Permitted Capex
Limit”) remains unutilised by the Borrower (as determined in accordance with
paragraph (g)(ii)(A)), such unutilised portion of the Permitted Capex Limit for
such month (failing within paragraph (A) of
the definition of “Permitted Capex Limit”) shall constitute the “Unused Capex Limit” for such month. For the avoidance of doubt, any unutilised portion of the Permitted
Capex Limit for any month  falling within paragraph (B) of
the definition of “Permitted Capex Limited” shall not form any part of the
Unused Capex Limit for such month.


 


(h)            Withdrawals — payment under
Transaction Finance Documents


 


Without prejudice to the rights of the Security
Agent under the Security Documents, the Borrower may by not less than three
Business Days’ notice request the AM (with a copy to each of the Facility Agent
and the Security Agent) to authorise a withdrawal from the Onshore Controlled
Account for the payment to the Facility Agent (for and on behalf of the
applicable Finance Parties) or any Swap Counterparty of all or any of the
Secured Onshore Obligations that are due and payable (which Secured Onshore
Obligations do not constitute Operating Expenditure) pursuant to a Finance
Document Withdrawal Request duly completed and executed by the Borrower.
Subject to paragraphs (l) and (m), the AM shall authorise such withdrawal
if:


 


(i)        the proposed amount,
the proposed date of withdrawal, payment instructions containing the details of
the payee of such amount (“Transaction
Finance Payee”) are specified in such Finance Document Withdrawal
Request;


 


(ii)       the Borrower
certifies in such Finance Document Withdrawal Request:


 


(A)         that the amount to be
so withdrawn shall be applied towards payment of (1) all or any of the
Secured Onshore Obligations due and payable to the Finance Parties under the
Finance Documents or (2) all or any of the Secured Onshore Obligations due
and payable to any Swap Counterparty under any Hedging Agreement; and


 


153

















 


(B)          that no amount has been
previously withdrawn or transferred from the Onshore Controlled Account for
such Secured Onshore Obligations; and


 


(iii)      such Transaction
Finance Payee is (in the case where the Borrower certifies in such Finance
Document Withdrawal Request that such amount is to be applied towards Secured
Onshore Obligations due and payable to the Finance Parties) the Facility Agent
or (in the case where the Borrower certifies in such Finance Document
Withdrawal Request that such amount is to be applied towards Secured Onshore
Obligations due and payable to any Swap Counterparty) such Swap Counterparty.


 


Any amount so withdrawn shall be paid directly
from the Onshore Controlled Account to the applicable Transaction Finance Payee
in accordance with the payment instructions set out in such Finance Document
Withdrawal Request.


 


(i)              Withdrawals — Dividends


 


Without prejudice to the rights of the Security
Agent under the Security Documents, the Borrower may by not less than three
Business Days’ notice request the AM (with a copy to each of the Facility Agent
and the Security Agent) to authorise a withdrawal from the Onshore Controlled
Account for the payment of dividends in cash by the Borrower to Parentco as
permitted under paragraph (d) of Clause 21.14 (Restricted payments) pursuant to a Dividend Withdrawal
Request duly completed and executed by the Borrower. Subject to paragraphs (l) and
(m), the AM shall authorise such withdrawal if:


 


(i)        the proposed amount,
the proposed date of withdrawal and payment instructions are specified in such Dividend Withdrawal Request
(provided that such Dividend Withdrawal Request must specify that any amount so
withdrawn shall be directly paid into the Parentco Controlled Account); and


 


(ii)       the Borrower
certifies in such Dividend Withdrawal Request that the amount to be so
withdrawn shall be applied towards payment of dividends in cash by the Borrower
to Parentco as permitted under Clause 21.14 (Restricted
payments).


 


Any amount so withdrawn shall be paid directly
from the Onshore Controlled Account to the Parentco Controlled Account.


 


(j)              Withdrawals — transfer to Cash
Collateral Account


 


Without prejudice to the rights of the Security
Agent under the Security Documents, the Borrower may by not less than three
Business Days’ notice request the AM (with a copy to each of the Facility Agent
and the Security Agent) to authorise a transfer from the Onshore Controlled
Account to the Onshore Cash Collateral Account.   Subject to paragraphs (l) and (m), the
AM shall authorise such withdrawal.


 


154

















 


(k)             Withdrawals — transfer to DSRA


 


Without prejudice to the rights of the Security
Agent under the Security Documents, the Borrower may by not less than three
Business Days’ notice request the AM (with a copy to each of the Facility Agent
and the Security Agent) to authorise a transfer from the Onshore Controlled
Account to the DSRA.   Subject to
paragraphs (l) and (m), the AM shall authorise such withdrawal.


 


(l)              Events of Default


 


If an Event of Default has occurred and is
continuing, the Security Agent may, and shall if so directed by the requisite
Secured Party or Secured Parties in accordance with the Security Trust Deeds,
give notice to AM that no further amount may be withdrawn or transferred from
the Onshore Controlled Account except upon the instructions of the Security
Agent as so directed by the requisite Secured Party or Secured Parties in
accordance with the Security Trust Deed. With effect from the giving of such
notice to AM, no further withdrawal or transfer may be made from the Onshore
Controlled Account except upon the instructions of the Security Agent (as so
directed by the requisite Secured Party or Secured Parties in accordance with
the Security Trust Deed), and AM shall not accept or act on the instructions of
the Borrower or any person (other than the Security Agent) with respect to the
Onshore Controlled Account.


 


(m)            Priority of withdrawals


 


In the event that the Onshore Controlled
Account does not sufficient balance standing to the credit thereto to enable
withdrawals or payments to be made pursuant to this paragraphs 2(d), (f), (h),
(i), (j) and/or (k), the balance standing to the credit of the Onshore
Controlled Account shall (subject to paragraph (l)) be applied to satisfy
withdrawals from the Onshore Controlled Account in the following order of
priority:


 


(i)        first, withdrawals under paragraph 2(j);


 


(ii)       second, withdrawals under paragraph 2(h);


 


(iii)      third, withdrawals under paragraph (k);


 


(iv)      fourth, withdrawals
under paragraphs 2(d) and/or (f); and


 


(v)       fifth, withdrawals under paragraph 2(i).


 


(n)             Monitoring


 


(i)        Within 10 Business
Days of the end of each month, AM shall provide to each of the Facility Agent
and the Security Agent an account statement in respect of the Onshore
Controlled Account for such month.


 


(ii)       Without prejudice to
paragraph (n)(i), AM shall set out in each account statement (for the month
ending on the last day of any Calculation Period) 


 


155

















 


in
respect of the Onshore Controlled Account (A) the aggregate amount
deposited into the Onshore Controlled Account for such Calculation Period and (B) whether
such aggregate amount is less than 60% of the projected cash inflow of the
Borrower for such Calculation Period as set out in the Base Case Model.


 


3.           Onshore Project Accounts


 


(a)             Withdrawals


 


Without prejudice to the rights of the Security
Agent under the Security Documents and subject to paragraphs (g) and (h):


 


(i)        the Borrower may (but
may only) request for a withdrawal from an Onshore Project Account in
accordance with paragraphs (b) to (e); and


 


(ii)       any withdrawal or
transfer from, and any other instructions relating to, any Onshore Project
Account must be authorised by the AM in writing in order for the same to be
effective.


 


(b)            Withdrawals — transaction expenses


 


(i)        Within 10 Business
Days after the Initial Utilisation Date, the Borrower shall by not less than three
Business Days’ notice request the AM (with a copy to the Facility Agent and the
Security Agent) to authorise a withdrawal from the Onshore USD Project Account
for the payment of all costs and expenses (including without limitation legal
fees) properly incurred by any or all of the Calculation Agent, the Facility
Agent, the Security Agent and the Arranger which are due on or about the
Initial Utilisation Date pursuant to a Transaction Expense Withdrawal Notice
duly completed by and executed by the Borrower.


 


(ii)       Subject to paragraph
(h), the Security Agent shall authorise such withdrawal if:


 


(A)          the proposed amount,
the proposed date of withdrawal and payment instructions
are specified in such Transaction Expense Withdrawal Request;


 


(B)          the Borrower certifies
in such Transaction Expense Withdrawal Request that the amount to be so
withdrawn shall be applied in accordance with paragraph (b)(i);


 


(C)          such Transaction
Expense Withdrawal Request specifies that all of the amount so withdrawn shall
be directly to an account of Facility Agent; and


 


(D)         the aggregate balance
standing to the credit of the Onshore USD Project Account after such withdrawal
is not less than the DSRA Amount at the time of such withdrawal.


 


156

















 


Any amount so withdrawn shall be paid directly
from the Onshore USD Project Account to the account of the Facility Agent
specified in such Transaction Expense Withdrawal Request.


 


(c)             Withdrawals — interest payment


 


(i)        The Borrower may by
not less than three Business Days’ notice request the AM (with a copy to the
Facility Agent and the Security Agent) to authorise a withdrawal from the
Onshore USD Project Account for the payment of interest due and payable on any
Loan(s) on the last day of the first Interest Period relating to the first
Loan, pursuant to a USD Account Withdrawal Request duly completed by and
executed by the Borrower.


 


(ii)       Subject to paragraph
(h), the AM shall authorise such withdrawal if:


 


(A)         the proposed amount,
the proposed date of withdrawal and payment instructions
are specified in such USD Account Withdrawal Request;


 


(B)          the Borrower certifies
in such USD Account Withdrawal Request that the amount to be so withdrawn shall
be applied in accordance with paragraph (c)(i); and


 


(C)          such USD Account
Withdrawal Request specifies that all of the amount so withdrawn shall be
directly to an account of Facility Agent.


 


Any amount so withdrawn shall be paid directly
from the Onshore USD Project Account to the account of the Facility Agent
specified in such USD Account Withdrawal Request.


 


(d)            Withdrawals — Onshore USD Project
Account / Transfer


 


(i)        As soon as the
proceeds of any Loan utilised pursuant to this Agreement have been paid into
the Onshore USD Project Account, the Borrower shall ensure that:


 


(A)         firstly, (in the case
of the first Loan) an amount equal to the DSRA Amount is set aside in the
Onshore USD Project Account for application in accordance with paragraph
(c)(i);


 


(B)          secondly, (in the case
of the first Loan) an amount required to comply with paragraph (b)(i) is
set aside in the Onshore USD Project Account for application in accordance with
paragraph (b)(i) (for the avoidance of doubt, such amount is in addition
to the amount to be retained in the Onshore USD Project Account pursuant to
paragraph (d)(i)(A)); and


 


(C)          thirdly, upon
verification by SAFE, an amount as verified by SAFE out of the remainder of
such proceeds so paid into the Onshore USD Project Account (after the setting
aside of any


 


157














 


amounts under paragraphs (d)(i)(A) and (d)(i)(B)) is converted into
RMB and transferred into the Onshore RMB Project Account.


 


(ii)       The Borrower may by
not less than 3 Business Days’ prior written notice to the AM (with a copy to
each of the Facility Agent and the Security Agent), request the AM to authorise
a withdrawal from the Onshore USD Project Account for application in accordance
with paragraph (d)(i)(C) pursuant to a USD Account Withdrawal Request duly
completed and executed by the Borrower. Subject to paragraph (h), the AM shall
authorise such withdrawal if:


 


(A)         the proposed amount,
the proposed date of withdrawal, payment instructions containing the details of
the payee of such amount are specified in such USD Account Withdrawal Request;


 


(B)          the Borrower certifies
in such USD Account Withdrawal Request that the amount to be so withdrawn shall
be applied in accordance with paragraph (d)(i)(C);


 


(C)          (1) the Borrower
specifies in such USD Account Withdrawal Request that all such amount so
withdrawn is to be converted by the AM into RMB and paid directly to the
Onshore RMB Project Account and (2) the Borrower provides evidence that
the applicable SAFE verification with respect to such withdrawal, conversion
and transfer into the Onshore RMB Project Account has been completed; and


 


(D)         (in the case where such
withdrawal is to be made on or prior to the last day of the first Interest
Period for the first Loan) the aggregate balance standing to the credit of the
Onshore USD Project Account after such withdrawal is not less than the DSRA
Amount at the time of such withdrawal.


 


Any amount so withdrawn shall be paid directly
from the Onshore USD Project Account to the AM for conversion into RMB and for
deposit of the proceeds of such conversion into the Onshore RMB Project
Account.


 


(e)             Withdrawals — Onshore RMB Project
Account / Approved Project Capex Schedule


 


The Borrower may by not less than 3 Business
Days’ prior written notice to the AM (with a copy to each of the Facility Agent
and the Security Agent), request the AM to authorise a withdrawal from the
Onshore RMB Project Account for the payment of Project Capital Expenditure
incurred by the Borrower pursuant to a Project Capex Withdrawal Request duly
completed and executed by the Borrower. 
Subject to paragraph (h), the AM shall authorise such withdrawal if:


 


(i)        the proposed amount,
the proposed date of withdrawal and payment instructions containing the details of the payee of such amount (“Project 


 


158

















 


Capex Payee”), provided that such Project Capex Payee must be the
LHD Vendor and such payment instructions must specify that such amount so
withdrawn must be directly paid into the LHD Vendor Joint Account;


 


(ii)       the Borrower
certifies in such Project Capex Withdrawal
Request (A) that the amount to be so withdrawn shall be applied towards
Project Capital Expenditure incurred by the Borrower under (x) the Financed LHD Acquisition Agreement in respect of the acquisition of Financed LHD
Units thereunder or (y) the Upcoming LHD Acquisition Agreement in respect of the
acquisition of Upcoming LHD Units thereunder, (B) that such Project Capex Payee is the LHD Vendor and is the
person entitled to receive such amount under the Financed LHD Acquisition Agreement or, as the case may be, the Upcoming LHD
Acquisition Agreement and
(C) that no amount has been previous withdrawn or transferred from the
Onshore RMB Project Account or the Onshore Controlled Account for such Capital
Expenditure;


 


(iii)      such Project Capex Withdrawal
Request is accompanied by:


 


(A)          a copy of the invoice
(for an amount not less than such amount to be so withdrawn) issued by the LHD
Vendor to the Borrower, which invoice must be an invoice under the Financed LHD
Acquisition Agreement or, as the case may be, the Upcoming LHD Acquisition
Agreement; and


 


(B)          a copy of the invoice
(for an amount not less than such amount to be so withdrawn or the equivalent
thereof in US dollars) from Power Hydraulics to the LHD Vendor, which invoice
must be an invoice under the Power Hydraulics Financed LHD Supply Contact (in
the case where an invoice relating to the Financed LHD Acquisition Agreement is
delivered under paragraph (iii)(A)) or the Power Hydraulics Upcoming LHD Supply
Contract (in the case where an invoice relating to the Financed LHD Acquisition
Agreement is delivered under paragraph (iii)(A)); and


 


(iv)      either:


 


(A)          the amount to be so
withdrawn, when aggregated with (x) all other amounts withdrawn and/or
requested to be withdrawn from the Onshore RMB Project Account pursuant to this (e) during the
calendar month in which such first-mentioned withdrawal is to occur (excluding
any amount approved pursuant to paragraph (e)(iv)(B)) and (y) all amounts
withdrawn and/or requested to be withdrawn from the Onshore Controlled Account
during the calendar month in which such first-mentioned withdrawal is to occur
pursuant to Special Capex Withdrawal Requests (excluding any amount approved
pursuant to paragraph 2(f)(iv)(B)), does not exceed (or the equivalent thereof
in
RMB) the Permitted Project 


 


159

















 


Capex Limit for such month; or


 


(B)          the amount to be so
withdrawn has been approved by the Facility Agent (acting on the instructions
of the Majority Lenders) upon written application (with no less than 10
Business Days’ notice prior to the proposed date of such withdrawal) by the
Borrower, it being expressly stated in such application stating that it is an
application for approval of a one-off withdrawal pursuant to this paragraph
(e)(iv)(B) during the applicable calendar month in which such withdrawal
is proposed to occur.


 


Any amount so
withdrawn shall be paid directly from the applicable Onshore RMB Project
Account into the LHD Vendor Joint Account.


 


(f)             Permitted Project Capex Limit


 


(i)        The “Permitted Project Capex Limit” for each
month shall be the sum of:


 


(A)         the aggregate amount of
approved Capital Expenditure for such month as set out in the Approved Project
Capex Schedule; and


 


(B)          any Unusued Project
Capex Limit for the immediately previous month as determined in accordance with
paragraph (f)(ii).


 


For the purposes
of the month in which the Initial Utilisation Date occurs, the amount in
paragraph (B) shall be deemed to be zero.


 


(ii)       With effect from the
Initial Utilisation Date:


 


(A)         if (x) any amount
is withdrawn and/or transferred from the Onshore RMB Project Account during a
calendar month in connection with any Project Capex Withdrawal Request
(excluding any amount approved pursuant to paragraph (e)(iv)(B)) and/or (y) any
amount is withdrawn and/or transferred from the Onshore Controlled Account
during a calendar month in connection with any Special Capex Withdrawal Request
(excluding any amount approved pursuant to paragraph 2(f)(iv)(B)), the Borrower
shall be deemed to have utilised the Permitted Project Capex Limit for such
month to the extent of such amount so withdrawn or transferred (or the
equivalent thereof in RMB); and


 


(B)          to the extent that, as
at the end of a month, any portion of the Permitted Project Capex Limit for
such month remains unutilised by the Borrower (as determined in accordance with
paragraph (f)(ii)(A)), such unutilised portion of the Permitted Project Capex
Limit for such month shall constitute the “Unused
Project Capex Limit” for such month.


 


160

















 


(iii)      For the avoidance of
doubt, any Unused Project Capex for any month may be allowed to carry forward
indefinitely to subsequent months in accordance with this paragraph (f).


 


(g)            Withdrawals — Onshore RMB Project
Account / Unused balance


 


Subject to paragraph (h), when all payments
contemplated under the entire Approved Project Capex Schedule (not, for the
avoidance of doubt, payments for a particular month covered by the Approved
Project Capex Schedule) have been fully made, if there is any balance then
standing to the credit of the Onshore RMB Project, all of such balance shall be
transferred to the Onshore Controlled Account pursuant to the terms of the
Account Control Agreement.


 


(h)            Events of Default


 


If an Event of Default has occurred and is
continuing, the Security Agent may, and shall if so directed by the requisite
instructing Secured Party or Secured Parties in accordance with the provisions
of the Security Trust Deed, give notice to AM that no further amount may be
withdrawn or transferred from any Onshore Project Account except upon the
instructions of the Security Agent as so directed by the requisite instructing
Secured Party or Secured Parties in accordance with the provisions of the
Security Trust Deed.  With effect from
the giving of such notice to AM, no further withdrawal or transfer may be made
from such Onshore Project Account except upon the instructions of the Security
Agent as so directed by the requisite instructing Secured Party or Secured
Parties in accordance with the provisions of the Security Trust Deed, and AM
shall not accept or act on the instructions of the Borrower or any person
(other than the Security Agent) with respect to such Onshore Project Account.


 


(i)              Monitoring


 


Within 10 Business Days of the end of each
month, AM shall provide to each of the Facility Agent and the Security Agent an
account statement in respect of each Onshore Project Account for such month.


 


4.           Onshore Cash Collateral Account


 


(a)             Sole signing authority


 


The Security Agent shall have sole signing
authority with respect to the Onshore Cash Collateral Account.  Any withdrawal or transfer from, and any
other instructions relating to, the Onshore Cash Collateral Account shall
require the written instructions of the Security Agent.


 


(b)            Receipts


 


(i)        The Borrower shall
procure deposits into the Onshore Cash Collateral Account in accordance with
paragraph 1 of Schedule 13 (Conditions subsequent).


 


(ii)       AM shall promptly
notify each of the Facility Agent and the Security 


 


161

















 


Agent whether the deposit
required to be made into the Onshore Cash Collateral Account on each of the
dates falling 6 Months and 9 Months after the Initial Utilisation Date
respectively in accordance with paragraph 1 of Schedule 13 (Conditions subsequent) has been made by 3pm (Tianjin time) on such date.


 


(c)             Withdrawals


 


Without prejudice to the rights of the Security
Agent under the Security Documents, provided that (A) no Event of Default
is continuing and (B) the aggregate amount paid into the Onshore Cash
Collateral Account in accordance with paragraph 1 of Schedule 13 (Conditions subsequent) is not less than minimum amount
required thereunder (as at the date falling 9 Months after the Initial
Utilisation Date):


 


(i)        the Borrower may, in
the event of any voluntary prepayment under Clause 8.5 (Voluntary prepayment of Loans) which is not made by an
amount withdrawn from the Onshore Cash Collateral Account pursuant to this
paragraph (i), request the Security
Agent (by not less than three Business Days’ notice to the Security Agent, such
notice expiring on the date on which such voluntary prepayment is made) to
authorise a withdrawal from the Onshore Cash Collateral Account in an aggregate
amount not exceeding the equivalent in RMB of 15% of the amount of such
prepayment
to be applied towards voluntary repayment under Clause 8.5 (Voluntary
prepayment of Loans);


 


(ii)       the Security Agent
shall authorise such withdrawal from the Onshore Cash Collateral Account
requested by the Borrower in accordance with paragraph (c)(i); and


 


(iii)      the amount so
withdrawn shall be paid to an account designated by the Facility Agent for the
purpose of paragraph (c)(i).


 


(d)            Monitoring


 


Within 10 Business Days of the end of each
month, AM shall provide to each of the Facility Agent and the Security Agent an
account statement in respect of the Onshore Cash Collateral Account for such
month.


 


5.           Debt Service Reserve Account


 


(a)             Sole signing authority


 


The Security Agent shall have sole signing
authority with respect to the DSRA.  Any
withdrawal or transfer from, and any other instructions relating to, the DSRA
shall require the written instructions of the Security Agent.


 


(b)            Withdrawals


 


Without prejudice to the rights of the Security
Agent under the Security Documents, the Security Agent may from time to time
apply amounts standing 


 


162

















 


to the credit of the DSRA towards the payment
of (or conversion into the applicable currency or currencies for application
towards the payment of) amounts that are due and payable but unpaid under the
Transaction Finance Documents (or any of them). 
For the avoidance of doubt, the applicable Obligor(s) shall remain
liable for the payment of any amount that is due and payable under the
Transaction Finance Documents to the extent that any amount so withdrawn or the
proceeds of conversion of any amount so withdrawn are insufficient to discharge
such amount that is due and payable under the Transaction Finance Documents.


 


6.           Parento Controlled Account


 


(a)             Withdrawals


 


Without prejudice to the rights of the Security
Agent under the Security Documents and subject to paragraph (c):


 


(i)        Parentco may (but may
only) request for a withdrawal from the Parentco Controlled Account in
accordance with paragraph (b); and


 


(ii)       any withdrawal or
transfer from, and any other instructions relating to, the Parentco Controlled
Account must be authorised by the Security Agent in writing in order for the
same to be effective.


 


(b)            Withdrawals - dividends, reinvestment
or repayment of Permitted Sponsor Subordinated Debt


 


Without prejudice to the rights of the Security
Agent under the Security Documents:


 


(i)        Parentco may by not
less than three Business Days’ notice request the Security Agent (with a copy
to the Facility Agent) to authorise a withdrawal from the Parentco Controlled
Account for:


 


(A)         the payment of
dividends in cash by Parentco to Holdco as permitted under paragraph (c) of
Clause 21.14 (Restricted payments);


 


(B)          the injection of any
amount by Parentco into any wholly-owned Subsidiary of Parentco established or
to be established in the PRC (provided that the written consent of the Facility
Agent (acting on the instructions of the Majority Lenders), in respect of the
establishment of such Subsidiary and such injection shall have been obtained);
or


 


(C)          the repayment in cash
by Parentco to the Sponsor of any Permitted Sponsor Subordinated Debt, which
repayment is permitted under paragraph (h) of Clause 21.14 (Restricted payments) and the terms of the
applicable Subordination Deed relating to such Permitted Sponsor Subordinated
Debt,


 


163

















 


in each case pursuant to a Parentco Withdrawal
Request duly completed and executed by Parentco; and


 


(ii)       subject to paragraph
(c), the Security Agent shall authorise such withdrawal if:


 


(A)          the proposed amount,
the proposed date of withdrawal and payment instructions
are specified in such Parentco Withdrawal Request;


 


(B)          Parentco certifies in
such Parentco Withdrawal Request that the amount to be so withdrawn shall be
applied in accordance with paragraph (b)(i)(A) or (b)(i)(B) or
(b)(i)(C);


 


(C)          (in the case where
Parentco certifies in such Parentco Withdrawal Request that the amount to be so
withdrawn shall be applied in accordance with paragraph (b)(i)(A)) such
Parentco Withdrawal Request specifies that all of the amount so withdrawn shall
be remitted directly to an account of Holdco and shall be accompanied by a copy
of the written notification of the Calculation Agent that the Calculation Agent
is (based on the audited financial statements of the Borrower for the
applicable Financial Year supplied by the Borrower pursuant to paragraph (a) of
Clause 19.1 (Financial statements))
satisfied that the payment of dividends by Parentco to Holdco out of the amount
to be so withdrawn is permitted under paragraph (c) of Clause 21.14 (Restricted payments).  The Calculation Agent shall, as soon as
reasonably practicable after it has received (1) written request by the
Borrower and Parentco, (2) the applicable financial statements of the
Borrower under paragraph (a) of Clause 19.1 (Financial statements), and (3) certification by the
Borrower (setting out reasonable details) in such form as the Calculation Agent
may require (acting reasonably) for the purpose of verifying compliance with
paragraph (c) of Clause 21.14 (Restricted
payments), if the Calculation Agent is so satisfied that such
dividends are permitted under paragraph (c) of Clause 21.14 (Restricted payments), issue such written
notification;


 


(D)          (in the case where
Parentco certifies in such Parentco Withdrawal Request that the amount to be so
withdrawn shall be applied in accordance with paragraph (b)(i)(B)) such
Parentco Withdrawal Request shall be accompanied by a copy of the written
consent of the Facility Agent with respect to such withdrawal and the account
into which such amount so withdrawn is to be paid (as set out in such Parentco
Withdrawal Request) complies with the terms of such written consent of the
Facility Agent (acting on the instructions of the Majority Lenders); and


 


(E)           (in the case where
Parentco certifies in such Parentco Withdrawal 


 


164

















 


Request that the
amount to be so withdrawn shall be applied in accordance with paragraph
(b)(i)(C)) such Parentco Withdrawal Request specifies that (1) all of the
amount so withdrawn shall be remitted directly to an account of the Sponsor, (2) the
amount of Permitted Loan(s) has been reduced (through repayment in cash)
by an amount not less than the amount to be so withdrawn and (3) no
withdrawal (other than the withdrawal that is the subject of such Parentco
Withdrawal Request) from the Parentco Controlled Account has been made or
requested on account of or in connection with such reduction in the amount of
Permitted Loan(s), and such Parentco Withdrawal Request shall be accompanied by
a copy of a written notification from the Facility Agent to the effect that the
Facility Agent (acting on the instructions of the Majority Lenders) is
satisfied that (x) the application of the amount to be so withdrawn in
accordance with paragraph (b)(i)(C) is permitted under paragraph (h) of
Clause 21.14 (Restricted payments),
(y) the amount of Permitted Loan(s) has been reduced (through
repayment in cash) by an amount not less than the amount to be so withdrawn and
(z) no withdrawal (other than the withdrawal that is the subject of such
Parentco Withdrawal Request) from the Parentco Controlled Account has been made
or requested on account of or in connection with such reduction in the amount
of Permitted Loan(s).


 


Any amount so withdrawn shall be paid directly
from the Parentco Controlled Account to (1) (in the case where Parentco
certifies in such Parentco Withdrawal Request that the amount to be so
withdrawn shall be applied in accordance with paragraph (b)(i)(A)) an account
of Holdco specified in such Parentco Withdrawal Request or (2) (in the
case where Parentco certifies in such Parentco Withdrawal Request that the
amount to be so withdrawn shall be applied in accordance with paragraph
(b)(i)(B)) the account specified in such Parentco Withdrawal Request or (3) (in
the case where Parentco certifies in such Parentco Withdrawal Request that the
amount to be so withdrawn shall be applied in accordance with paragraph
(b)(i)(C)) an account of the Sponsor specified in such Parentco Withdrawal
Request. Neither the Calculation Agent nor the Facility Agent shall have any
liability or responsibility to any Secured Party, any Obligor or any member of
the Group for any inaccuracy in its calculations or for accepting or relying on
any evidence or confirmation that it may think fit at its discretion for the
purposes of giving (or refraining from giving) such notification under
paragraph (C) or (E).  A Transaction
Agent may (but is under no obligation to) notify the Lenders or any other
Finance Party of the issuance (or refusal to issue) of any such notification.


 


(c)             Events of Default


 


If an Event of Default has occurred and is
continuing, no further amount may be withdrawn or transferred from the Parentco
Controlled Account except upon the 


 


165

















 


instructions of the Security Agent (acting on
the instructions of the Majority Lenders).


 


7.           Other Accounts


 


The Borrower shall:


 


(a)             notify
each of the Facility Agent and the Security Agent of each of its accounts
(other than the accounts specified in paragraph 1(a)) promptly upon the
establishment of such account; and


 


(b)            provide
each of the Facility Agent and the Security Agent a monthly statement in
respect of each such account (including without limitation details on the
balance standing to the credit thereof and transactions during the applicable month)
within 10 Business Days after the end of each month.


 


8.           Currency
conversion


 


In the event that
the currency in which any payment (to which any amount withdrawn from any of
the Onshore Controlled Account, the Onshore USD Project Account, the Onshore
RMB Project Account, the Onshore Cash
Collateral Account and/or the DSRA pursuant to this Schedule is to be applied)
is due is different from the currency of such amount so withdrawn, the Borrower
shall be responsible to convert such amount withdrawn into such currency in
which such payment is due at a prevailing market rate of exchange.


 


166

















 


SCHEDULE 7


INTENTIONALLY LEFT BLANK


 


167






 


 


 










 


SCHEDULE 8


FORM OF NOTICE OF INTENTION TO PUT


 


To:          [name of Facility Agent]
as Facility Agent


 


From:      [name of Lender]


 


Facility Agreement dated
[                              ]
and made between, among others, Tianjin New Highland Science and Technology Development
Co., Ltd. as Borrower and Deutsche Bank AG, Hong Kong Branch as Arranger
and Facility Agent (as amended and restated pursuant to an amendment agreement
dated [              ] and a second amendment agreement dated [              ] and as amended from time to time, the “Facility Agreement”)


 


1.           We
refer to the Facility Agreement.  This is
a Notice of Intention to Put.  Terms and
expressions defined in and or construed for the purposes of the Agreement have
the same meaning when used herein.


 


2.           Pursuant
to Clause 8.2 (Lenders’ Put Option)
of the Facility Agreement, we hereby give you notice that we require all of our
participation in each of the Loans to be repaid by the Borrower on the Put
Option Date.


 


 


	
  Yours faithfully

  
	
   

  
	
   

  
	
   

  	
   

  
	
   

  
	
  authorised signatory

  
	
  for and on behalf of

  
	
  [Name of
  Lender]

  



 


168

















 


SCHEDULE 9

FORM OF LENDER ACCESSION MEMORANDUM


 


To:          [name of Facility Agent]
as Facility Agent


 


[name of
Security Agent] as Security Agent


 


From:      Deutsche Bank AG, Hong Kong Branch (the “Arranger”)


The persons listed in the Schedule hereto (the “Acceding Lenders”)


 


Date:


 


Dear Sirs


 


Facility Agreement dated [                                ] and made between, among others,
Tianjin New Highland Science and Technology Development Co., Ltd. as
Borrower and Deutsche Bank AG, Hong Kong Branch as Arranger and the Facility
Agent (as amended and restated pursuant to an amendment agreement dated [           ]
and a second amendment agreement dated [            ] and as amended from time to time, the “Facility
Agreement”)


 


Security Trust Deed dated [                ] between, among others,
Deutsche Bank AG, Hong Kong Branch as facility agent, Deutsche Bank AG, Hong
Kong Branch as facility calculation agent, 
DB Trustees (Hong Kong) Limited as security trustee and Deutsche Bank
AG, Hong Kong Branch as arranger (as amended from time to time, the “Security
Trust Deed”)


 


1.           We
refer to the Facility Agreement and Security Trust Deed.  This is a Lender Accession Memorandum.  Terms and expressions defined in or construed
for the purposes of the Security Trust Deed shall bear the same meaning herein,
provided that for the purposes of paragraphs 2 and 3 and the Schedule hereto,
terms and expressions defined in or construed for the purposes of the Facility
Agreement shall bear the same meaning in paragraphs 2 and 3 and the Schedule
hereto unless otherwise defined in this Lender Accession Memorandum.


 


2.           This
Lender Accession Memorandum relates to and is delivered in respect of a Tranche
(and the commitments represented by the Commitments of the Acceding Lenders
specified in the Schedule hereto shall constitute or form part of a Tranche),
with Tranche Number
                      *.  Each of the Acceding Lenders and the Arranger
hereby delivers this Lender Accession Memorandum pursuant to Clause 4.1 (Accession) of the Facility Agreement.


 


3.           Each
of the Acceding Lenders agree and confirms that it shall, upon becoming a Party
to the Facility Agreement in accordance with pursuant to Clause 4 (Accession of Lenders) thereof, be bound by
the terms of the Facility Agreement as a Lender with a Commitment in respect of
Tranche
                      *
as set out beside its name under the heading “Commitment” in the Schedule
hereto (in addition to any Commitment for any Tranche that it may already
have).


 






*
Insert relevant Tranche Number e.g. “Two”, “Three” or “Four” etc.


 


169

















 


4.           Each
Acceding Lender agrees to become party to the Security Trust Deed as a “Lender”
pursuant to Clause 9.2 (Accession of New
Lender) of the Security Trust Deed.


 


5.           The
address, fax number and attention details for notices for each of the Acceding
Lender for the purposes of 30.2 (Addresses)
of the Facility Agreement and Clause 15.2 (Addresses
for notices) of the Security Trust Deed are set out in the signature
block of each Acceding Lender in this Lender Accession Memorandum.


 


6.           Each
Acceding Lender expressly acknowledges the limitations on the obligations of
the Secured Parties set out in Clause 9.3 (Limitation
of responsibility of Existing Lender and Secured Parties) of the
Security Trust Deed.


 


7.           This
Lender Accession Memorandum may be executed in any number of counterparts and
this has the same effect as if the signatures and/or execution on the
counterparts were on a single copy of this Lender Accession Memorandum.


 


8.           This
Lender Accession Memorandum shall be governed by and construed in accordance
with the laws of Hong Kong.


 


THE
SCHEDULE


 


	
  Name of Acceding Lender

  	
   

  	
  Commitment (US$)

  
	
   

  	
   

  	
   

  
	
  [insert
  name of each Acceding Lender]

  	
   

  	
   

  



 


IN WITNESS WHEREOF this Lender Accession Memorandum has been duly
executed by the Arranger and each Acceding Lender and shall (for the purposes
of the Security Trust Deed and accession of each Acceding Lender thereto) take
effect as a deed and is intended to be delivered and is hereby delivered on the
date first above written.


 


Arranger


 


SIGNED, SEALED and
DELIVERED


as a DEED for and on behalf of


DEUTSCHE BANK AG, HONG KONG
BRANCH


by


[name of
signatory]]


 


 


Acceding Lender


 


	
  [THE COMMON SEAL of

  	
  )

  
	
  [the applicable Acceding
  Lender]

  	
  )

  
	
  was hereunto affixed

  	
  )

  
	
  in the presence of

  	
  )

  



 


170

















 


Signature of witness:


 


Name of witness:


 


 


Address:


 


Fax:


 


Attention:]


 


 


	
  [SIGNED, SEALED and DELIVERED

  	
  )

  
	
  as a DEED for and on behalf of

  	
  )

  
	
  [the applicable Acceding Lender]

  	
  )

  
	
  by

  	
  )

  
	
  [name of signatory]

  	
  )

  



 


 


Address:


 


Fax:


 


Attention:]


 


 


This Lender Accession Memorandum is accepted by
the Facility Agent and the Facility Agent hereby confirms that the Accession
Date with respect to this Lender Accession Memorandum is [insert date].


 


[name of Facility Agent] as Facility Agent


 


	
  By:

  	
   

  



 


171

















 


SCHEDULE 10

INTENTIONALLY LEFT BLANK


 


172

















 


SCHEDULE 11

INTENTIONALLY LEFT BLANK


 


173

















 


SCHEDULE 12

CONDITIONS PRECEDENT FOR SUBSEQUENT TRANCHES


 


In
respect of any Tranche (other than Tranche One):


 


1.           Evidence
that the available foreign debt quota of the Borrower is not less than
US$50,000,000 plus the aggregate Commitments of the Lenders in respect of each
Tranche (other than Tranche One), provided that in calculating the aggregate
Commitments of the Lenders in respect of any Tranche, the aggregate maximum
Commitments of the Lenders in respect of such Tranche shall be used
irrespective of any subsequent reduction in any such Commitment.


 


2.           A
copy of the foreign debt registration certificate issued by SAFE in respect of
the supplement to this Agreement for such Tranche unless the Security Agent is
satisfied (upon advice by its PRC counsel) that the foreign debt registration
referred to in paragraph 6(i) of Schedule 2 (Conditions Precedent for initial Utilisation) is sufficient
to cover such Tranche.


 


3.           A
copy of any other Authorisation or other document, opinion or assurance which
the Facility Agent considers to be necessary or desirable (upon the advice of
its PRC counsel) in connection with such Tranche.


 


4.           A
legal opinion of legal counsel to the Facility Agent in the PRC, in form and
substance satisfactory to the Facility Agent.


 


5.           A certificate of an authorised signatory of the
Borrower certifying that each copy document specified in this Schedule 12
and/or any document or evidence delivered hereunder in copy form is correct,
complete and in full force and effect as at a date no earlier than the date of
the last Lender Accession Memorandum delivered in respect of such Tranche.


 


174

















 


SCHEDULE 13

CONDITIONS SUBSEQUENT


 


Part I  General


 


Each
Obligor party hereto shall:


 


1.           ensure that:


 


(a)             an amount of not less than RMB25,000,000 shall be deposited into the
Onshore Cash Collateral Account on or after the Initial Utilisation Date but on
or prior to the date falling 6 Months of the Initial Utilisation Date; and


 


(b)            (in addition to paragraph 1(a)) an additional amount of not less than
RMB25,000,000 shall be deposited into the Onshore Cash Collateral Account on or
after the Initial Utilisation Date but on or prior to the date falling 9 Months
of the Initial Utilisation Date; and


 


(c)             certificates of deposit are promptly issued by the AM (and such issuance
promptly notified in writing to the Security Agent) and each such certificate
of deposit relating to the Onshore Cash Collateral Account is promptly pledged
in favour of, and delivered to the possession of, the Security Agent pursuant
to the Pledge over Deposit Certificates;


 


2.           ensure
that by no later than the time when the payment of the third instalment (or, if
earlier, the final instalment) of the purchase consideration payable by the
Borrower under the Financed LHD Acquisition Agreement is paid, the Borrower
shall have entered into Financed LHD Contracts that together provide the use or
deployment of at least 6 Financed LHD Units, and shall have delivered copies
(certified to be true, complete and up-to-date) thereof to the Arranger;


 


3.           deliver
to the Arranger by no later than 30 days after the Initial Utilisation Date evidence in
form and substance satisfactory to the Arranger that the two Upcoming LHD Units
have been shipped out of a port at the United States of America;


 


4.           ensure
that the Sky Non-Compete Undertaking is entered into by the parties thereto,
and deliver to the Arranger a certified copy thereof, by no later than the
earlier of (i) the Qualifying IPO and (ii) the date falling six
Months after the Initial Utilisation Date;


 


5.           deliver
to the Arranger by no later than the date falling 60 days after the Initial
Utilisation Date a copy of the licensing agreement entered into between the
Borrower as owner of the MD Patent and  as licensee in
respect of the manufacture and supply of MD solution to the Borrower on an
exclusive basis (the “MD Licensing Agreement”),
including without limitation restrictions on any licensing, supply or
sub-licensing of the MD or any rights thereto by ; and


 


6.           procure
that there shall be delivered to the Arranger, by no later than the date
falling 60 days after the Initial Utilisation Date:


 

















 


(a)             evidence of the completion
the acquisition of the MD Patent by the Borrower;


 


(b)            evidence of the completion of registration of the MD Patent with SIPO in
the name of the Borrower; and


 


(c)             the MD Patent related documents pursuant to the MD Patent Acquisition
Agreement,


 


in
each case in form and substance satisfactory to the Arranger.


 


Part II  Security


 


Each Obligor party hereto shall:


 


7.           procure
that there shall be delivered to the Facility Agent within 30 days after the Initial
Utilisation
Date:


 


(a)             a copy (certified by the Borrower to be true, complete and up-to-date)
of the approval of MOFCOM in respect of the Equity Pledge over Borrower;


 


(b)            evidence (in form and substance satisfactory to the Facility Agent) that
the Equity Pledge over Borrower has been duly registered with SAIC; and


 


(c)             a legal opinion (with respect the Equity Pledge over Borrower) issued by
PRC counsel to the Facility Agent and in form and substance satisfactory to the
Facility Agent;


 


8.           procure
that (in the case where any supplement relating to the Equity Pledge over
Borrower has been executed after the date of the Equity Pledge over Borrower in
accordance with any Finance Document and/or to the extent required under PRC
law or by the relevant PRC authorities) there shall be delivered to the
Facility Agent within 30 days after the date of such supplement:


 


(a)             a copy (certified by the Borrower to be true, complete and up-to-date)
of the approval of MOFCOM in respect of such supplement;


 


(b)            evidence (in form and substance satisfactory to the Facility Agent) that
such supplement has been duly registered with SAIC; and


 


(c)             a legal opinion (with respect such supplement) issued by PRC counsel to
the Facility Agent and in form and substance satisfactory to the Facility
Agent;


 


9.           in respect of the Mortgage
over LHD Units relating to the 2 Existing LHD Units:


 


(a)             procure that there shall be delivered to the Facility Agent  within 30 days after the Initial
Utilisation
Date, a
copy (certified by the Borrower to be true, complete and up-to-date) of the
registration with SAIC in respect of the Mortgage over LHD Units;


 


(b)            use its best efforts
to procure that there shall
be delivered to the Facility Agent  within 90 days after the Initial Utilisation Date, a copy (certified by the
Borrower to be true, complete and up-to-date) of the registration with SAFE in 


 

















 


respect of the Mortgage over LHD Units and a copy (certified by the Borrower to be true, complete
and up-to-date) of the approval of MOFCOM in respect of the Mortgage over LHD
Units, provided that if the Borrower fails to
obtain (upon using its best efforts) such registration and approval, the
Borrower shall use its best effort to procure that there shall be delivered to the Facility Agent  within 90 days after the Initial
Utilisation
Date, a
copy (certified by the Borrower to be true, complete and up-to-date) of the rejection of  the application for registration
issued by SAFE in respect of
the Mortgage over LHD Units and a copy (certified by the Borrower to be true, complete
and up-to-date) of the rejection of the
application for approval  issued by MOFCOM in respect of
the Mortgage over LHD Units; provided further that if
the Borrower still fails (upon using its best efforts) to obtain such rejection
of application, the Borrower shall procure that there shall be delivered to the Facility Agent  within 90 days after the Initial
Utilisation
Date, a
copy (certified by the Borrower to be true, complete and up-to-date) of the postmarked receipt of the registration mail(s) evidencing that
applications to SAFE and MOFCOM for the registration and approval in respect of the Mortgage over LHD Units have been delivered to SAFE and MOFCOM respectively; and


 


(c)             procure that there shall be delivered to the Facility Agent  within 90 days after the Initial
Utilisation
Date, a
legal opinion (with respect the Mortgage over LHD Units) issued by PRC counsel
to the Facility Agent and in form and substance satisfactory to the Facility
Agent;


 


10.         in respect of the Mortgage over LHD Units relating to the 2 Upcoming
LHD Units:


 


(a)             procure that there shall be delivered to the Facility Agent  within 30 days after the date of the completion of the customs clearance (in the PRC) of the 2 Upcoming LHD Units, supplement(s) to the Mortgage over LHD Units
relating to the 2 Upcoming LHD Units;


 


(b)            procure that there shall be delivered to the Facility Agent  within 60 days after the date of the completion of the customs clearance (in the PRC) of the 2 Upcoming LHD
Units, a copy (certified by the
Borrower to be true, complete and up-to-date) of the registration with SAIC in
respect of the Mortgage over LHD Units relating to the 2 Upcoming LHD Units;


 


(c)             use its best efforts
to procure that there shall
be delivered to the Facility Agent  within 90 days after the date of the completion of the customs clearance (in the PRC) of the 2 Upcoming LHD
Units, a copy (certified by the
Borrower to be true, complete and up-to-date) of the registration with SAFE in
respect of the Mortgage over LHD Units relating to the 2
Upcoming LHD Units and a
copy (certified by the Borrower to be true, complete and up-to-date) of the
approval of MOFCOM in respect of the Mortgage over LHD Units relating to the 2 Upcoming LHD Units, provided that if the Borrower
fails to obtain (upon using its best efforts) such registration and approval,
the Borrower shall use its best effort to procure that there shall be delivered to the Facility Agent  within 90 days after the date of the completion of the customs clearance (in the PRC) of


 






 


 










 


the 2 Upcoming LHD
Units, a copy (certified by the
Borrower to be true, complete and up-to-date) of the rejection of  the application for registration issued by SAFE in respect of the Mortgage over LHD Units
relating to the 2 Upcoming LHD Units and a copy (certified by the Borrower to be true, complete
and up-to-date) of the rejection of the
application for approval  issued by MOFCOM in respect of
the Mortgage over LHD Units relating to the 2 Upcoming LHD Units; provided further that if the Borrower still fails (upon using its best
efforts) to obtain such rejection of application, the Borrower shall procure
that there shall be delivered to the
Facility Agent  within
90 days after the date of the completion of the customs clearance of the 2 Upcoming LHD Units, a copy (certified by the Borrower to be true,
complete and up-to-date) of the postmarked receipt of the
registration mail(s) evidencing that applications to SAFE and MOFCOM for
the registration and approval in
respect of the Mortgage over LHD Units relating to the 2
Upcoming LHD Units have been delivered to SAFE and MOFCOM respectively;


 


(d)                                     procure that there shall be delivered to the Facility
Agent  within
90 days after the date of the completion of the customs clearance (in the PRC) of the 2 Upcoming LHD Units, a legal opinion (with respect the Mortgage over LHD
Units relating to the 2 Upcoming LHD Units) issued by PRC counsel to the Facility Agent and in
form and substance satisfactory to the Facility Agent;


 


11.                           in respect of the Mortgage over LHD Units relating to the 6 Financed
LHD Units:


 


(a)                                      procure that
there shall be delivered to the Facility Agent  within 30 days after the date of the completion of the customs clearance (in
the PRC) of the 6 Financed LHD Units, supplement(s) to the
Mortgage over LHD Units relating to the 6 Financed LHD Units;


 


(b)                                     procure that there shall be delivered to the Facility
Agent  within
60 days after the date of the completion of the customs clearance (in the PRC) of the 6 Financed LHD Units, a copy (certified by the Borrower to be true,
complete and up-to-date) of the registration with SAIC in respect of the
Mortgage over LHD Units relating to the 6 Financed LHD Units;


 


(c)                                      use its best efforts to procure that there shall be delivered to the Facility Agent  within 90 days after the date of the completion of the customs clearance(in the PRC) of the 6 Financed LHD Units, a copy (certified by the Borrower to be true,
complete and up-to-date) of the registration with SAFE in respect of the
Mortgage over LHD Units relating to the 6 Financed LHD Units and a copy (certified by the Borrower to be true, complete
and up-to-date) of the approval of MOFCOM in respect of the Mortgage over LHD
Units relating to the 6 Financed LHD Units, provided that if the
Borrower fails to obtain (upon using its best efforts) such registration and
approval, the Borrower shall use its best effort to procure that there shall be delivered to the Facility Agent  within 90 days after the date of the completion of the customs clearance of the 6 Financed LHD Units, a copy (certified by the Borrower to be true,
complete and up-to-date) of the rejection of  the application for registration issued by SAFE in 


 

















 


respect of the Mortgage over LHD Units relating to the 6 Financed LHD
Units and a copy (certified by the Borrower to be true, complete and up-to-date)
of the rejection of the application for approval  issued by MOFCOM in respect of the Mortgage over LHD Units
relating to the 6 Financed LHD Units; provided further
that if the Borrower still fails (upon using its best efforts) to obtain such
rejection of application, the Borrower shall procure that there shall be delivered to the Facility Agent  within 90 days after the date of the completion of the customs clearance (in the PRC) of the 6 Financed LHD Units, a copy (certified by the Borrower to be true,
complete and up-to-date) of the postmarked receipt of the
registration mail(s) evidencing that applications to SAFE and MOFCOM for
the registration and approval in
respect of the Mortgage over LHD Units relating to the 6 Financed LHD Units have been delivered
to SAFE and MOFCOM respectively; and


 


(d)                                     procure that there shall be delivered to the Facility
Agent  within
90 days after the date of the completion of the customs clearance (in the PRC) of the 6 Financed LHD Units, a legal opinion (with respect the Mortgage over LHD
Units relating to the 6 Financed LHD Units) issued by PRC counsel to the Facility Agent and in
form and substance satisfactory to the Facility Agent;


 


12.                           in respect of any other supplement relating to the Mortgage over LHD
Units which is executed after the date of the Mortgage over LHD Units in accordance
with any Finance Document and/or to the extent required under PRC law or by the
relevant PRC authorities:


 


(a)                                      procure that there shall be delivered to the Facility
Agent within 30 days after the date of such supplement  a copy (certified by the Borrower to be true, complete
and up-to-date) of the registration with SAIC in respect of such supplement;


 


(b)                                     use its best efforts to procure that there shall be delivered to the Facility Agent  within 90 days after the date of such supplement, a copy (certified by the Borrower to be true,
complete and up-to-date) of the registration with SAFE in respect of the
Mortgage over LHD Units relating to such supplement
and a copy (certified by the
Borrower to be true, complete and up-to-date) of the approval of MOFCOM in
respect of the Mortgage over LHD Units relating such
supplement, provided that if the Borrower fails to obtain (upon using its best
efforts) such registration and approval, the Borrower shall use its best effort
to procure that there shall
be delivered to the Facility Agent  within 90 days after the date of such supplement, a copy (certified by the Borrower to be true,
complete and up-to-date) of the rejection of  the application for registration issued by SAFE in respect of the Mortgage over LHD Units
relating to such supplement and a copy (certified by the Borrower to be true, complete
and up-to-date) of the rejection of the
application for approval  issued by MOFCOM in respect of
the Mortgage over LHD Units relating such supplement;
provided further that if the Borrower still fails (upon using its best efforts)
to obtain such rejection of application, the Borrower shall procure that there shall be delivered to the Facility Agent  within 90 days after the date of such supplement, a
copy 


 

















 


(certified by the
Borrower to be true, complete and up-to-date) of the postmarked receipt
of the registration mail(s) evidencing that applications to SAFE and
MOFCOM for the registration and approval in respect of the Mortgage over LHD Units relating to such
supplement have been delivered to SAFE and MOFCOM respectively; and


 


(c)                                      procure that there shall be delivered to the Facility
Agent within 90 days after the date of such supplement a legal opinion (with respect
such supplement) issued by PRC counsel to the Facility Agent and in form and
substance satisfactory to the Facility Agent;


 


13.                           in respect of the Pledge over Receivables relating to the 2 Existing LHD
Contracts:


 


(a)                                      procure that there shall be delivered to the Facility
Agent  within
14 days after the Initial
Utilisation
Date,  a copy (certified by the
Borrower to be true, complete and up-to-date) of the registration certificate
issued by the  People’s Bank of China in
respect of the Pledge over Receivables;


 


(b)                                     use its best efforts to procure that there shall be delivered to the Facility Agent  within 90 days after the Initial Utilisation Date, a copy (certified by the
Borrower to be true, complete and up-to-date) of the registrations with SAFE and SAIC in respect of the
Pledge over Receivables and a copy (certified by the Borrower to be true, complete
and up-to-date) of the approval of MOFCOM in respect of the Pledge over
Receivables, provided that if the Borrower fails to
obtain (upon using its best efforts) such registrations and approval, the
Borrower shall use its best effort to procure that there shall be delivered to the Facility Agent  within 90 days after the Initial
Utilisation
Date, a
copy (certified by the Borrower to be true, complete and up-to-date) of the rejections of  the application for registration
issued by SAFE and SAIC in respect of the
Pledge over Receivables and a copy (certified by the Borrower to be true, complete
and up-to-date) of the rejections of the
application for approval  issued by MOFCOM in respect of
the Pledge over Receivables; provided further that if
the Borrower still fails (upon using its best efforts) to obtain such
rejections of application, the Borrower shall procure that there shall be delivered to the Facility Agent  within 90 days after the Initial
Utilisation
Date, a
copy (certified by the Borrower to be true, complete and up-to-date) of the postmarked receipt of the registration mail(s) evidencing that
applications to SAFE, SAIC and MOFCOM for the registration and approval in respect of the Pledge over Receivables have been delivered to SAFE, SAIC and MOFCOM respectively; and


 


(c)                                      procure that there shall be delivered to the Facility
Agent  within
90 days after the Initial Utilisation Date, a legal opinion (with
respect the Pledge over Receivables) issued by PRC counsel to the Facility
Agent and in form and substance satisfactory to the Facility Agent;


 


14.                           in respect of the Pledge over Receivables relating to the Upcoming LHD Contracts:


 

















 


(a)                                      procure that there shall be delivered to the Facility
Agent  within
14 days after (i) the execution of the Upcoming LHD Contracts or (ii) the
date of completion of the customs clearance (in the PRC) of the Upcoming LHD
Units, whichever is later, supplement(s) to the Pledge over Receivables
relating to such Upcoming LHD Contracts;


 


(b)                                     procure that there shall be delivered to the Facility
Agent  within
14 days after (i) the execution of such Upcoming LHD Contracts or (ii) the date of completion of the customs clearance (in the
PRC) of the Upcoming LHD Units, whichever is later,  a
copy (certified by the Borrower to be true, complete and up-to-date) of the
registration certificate issued by the 
People’s Bank of China in respect of the Pledge over Receivables relating to such
Upcoming LHD Contracts;


 


(c)                                      use its best efforts to procure that there shall be delivered to the Facility Agent  within 90 days after (i) the execution of such Upcoming LHD Contracts or (ii) the
date of completion of the customs clearance (in the PRC) of the Upcoming LHD
Units, whichever is later, a
copy (certified by the Borrower to be true, complete and up-to-date) of the
registrations
with SAFE and SAIC in respect of the Pledge over Receivables relating to such Upcoming LHD Contracts and a copy (certified by the Borrower to be true, complete
and up-to-date) of the approval of MOFCOM in respect of the Pledge over
Receivables relating to such Upcoming LHD Contracts, provided that if the
Borrower fails to obtain (upon using its best efforts) such registrations and
approval, the Borrower shall use its best effort to procure that there shall be delivered to the Facility Agent  within 90 days after (i) the execution of such Upcoming LHD Contracts or (ii) the date of completion of the customs clearance (in the
PRC) of the Upcoming LHD Units, whichever is later, a copy (certified by the Borrower to be true, complete and up-to-date)
of the rejections of  the application for registration issued by SAFE and SAIC in respect of the Pledge over Receivables relating to such Upcoming
LHD Contracts and a copy (certified by the Borrower to be true, complete and up-to-date)
of the rejections of the application for approval  issued by MOFCOM in respect of the Pledge over Receivables relating to such Upcoming
LHD Contracts; provided further that if the Borrower still
fails (upon using its best efforts) to obtain such rejections of application,
the Borrower shall procure that there shall be delivered to the Facility Agent  within 90 days after (i) the execution of such Upcoming LHD Contracts or (ii) the
date of completion of the customs clearance (in the PRC) of the Upcoming LHD
Units, whichever is later, a
copy (certified by the Borrower to be true, complete and up-to-date) of the postmarked receipt of the registration mail(s) evidencing that
applications to SAFE, SAIC and MOFCOM for the registration and approval in respect of the Pledge over Receivables relating to such Upcoming
LHD Contracts have been delivered to SAFE, SAIC and MOFCOM
respectively; and


 


(d)                                     procure that there shall be delivered to the Facility
Agent  within
90 days after (i) the execution of such Upcoming LHD Contracts or (ii) the date of completion of the customs clearance (in the
PRC) of the Upcoming LHD Units, whichever is later, a legal opinion (with respect the Pledge over Receivables) 


 

















 


issued by PRC counsel to the Facility Agent and in form and substance
satisfactory to the Facility Agent;


 


15.                           in respect of the Pledge over Receivables relating to the Financed LHD Contracts relating to 6 Financed LHD
Units (as referred to in paragraph 2):


 


(a)                                      procure that there shall be delivered to the Facility
Agent  within
14 days after (i) the execution of such Financed LHD Contracts or (ii) the date of completion of the customs clearance (in the
PRC) of the Financed LHD Units, whichever is later, supplement(s) to the Pledge over Receivables relating to such Financed LHD Contracts;


 


(b)                                     procure that there shall be delivered to the Facility
Agent  within
14 days after (i) the execution of such Financed LHD Contracts or (ii) the date of completion of the customs clearance (in the
PRC) of the Financed LHD Units, whichever is later,  a
copy (certified by the Borrower to be true, complete and up-to-date) of the
registration certificate issued by the 
People’s Bank of China in respect of the Pledge over Receivables relating to such
Financed LHD Contracts;


 


(c)                                      use its best efforts to procure that there shall be delivered to the Facility Agent  within 90 days after (i) the execution of such Financed LHD Contracts or (ii) the
date of completion of the customs clearance (in the PRC) of the Financed LHD
Units, whichever is later, a
copy (certified by the Borrower to be true, complete and up-to-date) of the
registrations
with SAFE and SAIC in respect of the Pledge over Receivables relating to such Financed LHD Contracts and a copy (certified by the Borrower to be true, complete
and up-to-date) of the approval of MOFCOM in respect of the Pledge over
Receivables relating to such Financed LHD Contracts, provided that if the
Borrower fails to obtain (upon using its best efforts) such registrations and
approval, the Borrower shall use its best effort to procure that there shall be delivered to the Facility Agent  within 90 days after (i) the execution of such Financed LHD Contracts or (ii) the
date of completion of the customs clearance (in the PRC) of the Finance LHD
Units, whichever is later, a copy (certified by the Borrower to be true,
complete and up-to-date) of the rejections of  the application for registration issued by SAFE and SAIC in respect of the Pledge over Receivables relating to such Financed
LHD Contracts and a copy (certified by the Borrower to be true, complete and up-to-date)
of the rejections of the application for approval  issued by MOFCOM in respect of the Pledge over Receivables relating to such Financed
LHD Contracts; provided further that if the Borrower still
fails (upon using its best efforts) to obtain such rejections of application,
the Borrower shall procure that there shall be delivered to the Facility Agent  within 90 days after (i) the execution of such Financed LHD Contracts or (ii) the date
of completion of the customs clearance (in the PRC) of the Finance LHD Units,
whichever is later, a
copy (certified by the Borrower to be true, complete and up-to-date) of the postmarked receipt of the registration mail(s) evidencing that
applications to SAFE, SAIC and MOFCOM for the registration and approval in respect of the Pledge over Receivables relating to such Financed
LHD Contracts have been delivered to SAFE, SAIC and MOFCOM
respectively; and


 

















 


(d)                                     procure that there shall be delivered to the Facility
Agent  within
90 days after (i) the execution of such Financed LHD Contracts or (ii) the date of completion of the customs clearance (in the PRC)
of the Financed LHD Units, whichever is later, a legal opinion (with respect the Pledge over Receivables) issued by
PRC counsel to the Facility Agent and in form and substance satisfactory to the
Facility Agent;


 


16.                           in respect of the Pledge over Receivables relating to any other Material Sales Contract:


 


(a)                                      procure that there shall be delivered to the Facility
Agent  within
14 days after the execution of such Material Sales Contract, a supplement to the Pledge over Receivables relating to such Material Sales
Contract;


 


(b)                                     procure that there shall be delivered to the Facility
Agent  within
14 days after the execution of such Material Sales Contract,  a
copy (certified by the Borrower to be true, complete and up-to-date) of the
registration certificate issued by the 
People’s Bank of China in respect of such supplement;


 


(c)                                      use its best efforts to procure that there shall be delivered to the Facility Agent  within 90 days after the execution of such Material Sales Contract, a copy (certified by the Borrower to be true,
complete and up-to-date) of the registrations with SAFE and SAIC in respect of the Pledge over Receivables relating to such supplement and a copy (certified by the Borrower to be true, complete and up-to-date)
of the approval of MOFCOM in respect of the Pledge over Receivables relating to such supplement, provided that if the Borrower fails to
obtain (upon using its best efforts) such registrations and approval, the
Borrower shall use its best effort to procure that there shall be delivered to the Facility Agent  within 90 days after the execution of such Material Sales Contract, a copy (certified by the Borrower to be true, complete and up-to-date)
of the rejections of  the application for registration issued by SAFE and SAIC in respect of the Pledge over Receivables relating to such supplement and a copy (certified by the Borrower to be true, complete and up-to-date)
of the rejections of the application for approval  issued by MOFCOM in respect of such supplement;
provided further that if the Borrower still fails (upon using its best efforts)
to obtain such rejections of application, the Borrower shall procure that there
shall be delivered to the Facility Agent  within 90 days after the execution of such Material Sales Contract, a copy (certified by the Borrower to be true, complete and up-to-date)
of the postmarked receipt of the registration mail(s) evidencing
that applications to SAFE, SAIC and MOFCOM for the registration and approval in respect of the Pledge over Receivables relating to such supplement have been delivered to SAFE, SAIC and
MOFCOM respectively; and


 


(d)                                     procure that there shall be delivered to the Facility
Agent  within
90 days after the execution of such Material Sales Contract, a legal opinion (with respect the Pledge over Receivables) issued by
PRC counsel to the Facility Agent and in form and substance satisfactory to the
Facility Agent;


 

















 


17.                           in respect of any other supplement relating to the Pledge over
Receivables which is executed after the date of the Pledge over Receivables in accordance
with any Finance Document and/or to the extent required under PRC law or by the
relevant PRC authorities:


 


(a)                                      procure that there shall be delivered to the Facility
Agent  within
14 days after the execution of such supplement,  a copy (certified by the Borrower to be true, complete
and up-to-date) of the registration certificate issued by the  People’s Bank of China in respect of such supplement;


 


(b)                                     use its best efforts to procure that there shall be delivered to the Facility Agent  within 90 days after the execution of such  supplement, a copy (certified by the Borrower to be true,
complete and up-to-date) of the registrations with SAFE and SAIC in respect of the Pledge over Receivables relating to such supplement and a copy (certified by the Borrower to be true, complete and up-to-date)
of the approval of MOFCOM in respect of the Pledge over Receivables relating to such supplement, provided that if the Borrower fails to
obtain (upon using its best efforts) such registrations and approval, the Borrower
shall use its best effort to procure that there shall be delivered to the Facility Agent  within 90 days after the execution of such supplement, a copy (certified by the Borrower to be true,
complete and up-to-date) of the rejections of  the application for registration issued by SAFE and SAIC in respect of the Pledge over Receivables relating to such supplement and a copy (certified by the Borrower to be true, complete and up-to-date)
of the rejections of the application for approval  issued by MOFCOM in respect of such supplement;
provided further that if the Borrower still fails (upon using its best efforts)
to obtain such rejections of application, the Borrower shall procure that there
shall be delivered to the Facility Agent  within 90 days after the execution of such supplement, a copy (certified by the
Borrower to be true, complete and up-to-date) of the postmarked receipt
of the registration mail(s) evidencing that applications to SAFE, SAIC and
MOFCOM for the registration and approval in respect of the Pledge over Receivables relating to such
supplement have been delivered to SAFE, SAIC and MOFCOM respectively; and


 


(c)                                      procure that there shall be delivered to the Facility
Agent  within
90 days after the execution of such supplement, a legal opinion (with
respect the Pledge over Receivables) issued by PRC counsel to the Facility
Agent and in form and substance satisfactory to the Facility Agent;


 


18.                           in respect of the Onshore Cash Collateral Account:


 


(a)                                      within 5 Business Days upon the deposit of the amount into the Onshore Cash Collateral Account in accordance with Clause 1(a) of
this Schedule 13, procure that there
shall be delivered to the Facility Agent the Pledge over Deposit Certificates, duly executed by
the parties thereto;


 


(b)                                     use its best efforts to procure that there shall be delivered to the Facility Agent  within 90 days after the Initial Utilisation Date, a copy (certified by the
Borrower to be true, complete and up-to-date) of the registrations with SAFE 


 

















 


and SAIC in respect of the Pledge over Deposit Certificates relating to such deposit and a copy (certified by the Borrower to be true, complete and up-to-date)
of the approval of MOFCOM in respect of the Pledge over Deposit Certificates relating to such deposit, provided that if the Borrower fails to obtain
(upon using its best efforts) such registrations and approval, the Borrower
shall use its best effort to procure that there shall be delivered to the Facility Agent  within 90 days after the Initial Utilisation Date, a copy (certified by the
Borrower to be true, complete and up-to-date) of the rejections of  the application for registration issued by SAFE and SAIC in respect of the Pledge over Deposit Certificates relating to such deposit and a copy (certified by the Borrower to be true, complete and up-to-date)
of the rejections of the application for approval  issued by MOFCOM in respect of the Pledge over Deposit
Certificates relating to such deposit; provided further
that if the Borrower still fails (upon using its best efforts) to obtain such
rejections of application, the Borrower shall procure that there shall be delivered to the Facility Agent  within 90 days after the Initial
Utilisation
Date, a
copy (certified by the Borrower to be true, complete and up-to-date) of the postmarked receipt of the registration mail(s) evidencing that
applications to SAFE, SAIC and MOFCOM for the registration and approval in respect of the Pledge over Deposit Certificates relating to such deposit have been delivered to SAFE, SAIC and MOFCOM
respectively; and


 


(c)                                      procure that there shall be delivered to the Facility
Agent  within
90 days after the Initial
Utilisation
Date, a
legal opinion (with respect the Pledge over Deposit Certificates) issued by PRC
counsel to the Facility Agent and in form and substance satisfactory to the
Facility Agent;


 


19.                           in respect of each of (i) the deposit of an additional amount into the Onshore
Cash Collateral Account in accordance with paragraph 1(b) of this Schedule
13 and (ii) any withdrawal from the Onshore Cash Collateral Account in
accordance with paragraph 4(c)(i) of Schedule 6 (Bank Accounts):


 


(a)                                      within 5 Business Days after such change in balance standing to the credit of the Onshore Cash
Collateral Account, procure
that there shall be delivered to the Facility Agent a supplement to the Pledge over Deposit Certificates, duly executed by
the parties to the Pledge over Deposit Certificates;


 


(b)                                     use its best efforts to procure that there shall be delivered to the Facility Agent  within 90 days after the date of such change in
balance, a copy (certified by the
Borrower to be true, complete and up-to-date) of the registrations with SAFE and SAIC in respect of the
Pledge over Deposit Certificates of such supplement and a copy (certified by the Borrower to be true, complete
and up-to-date) of the approval of MOFCOM in respect of the Pledge over Deposit
Certificates relating to such supplement, provided that
if the Borrower fails to obtain (upon using its best efforts) such
registrations and approval, the Borrower shall use its best effort to procure
that there shall be delivered to the
Facility Agent  within
90 days after the date of such change in balance, a
copy (certified by the Borrower to be true, complete and up-to-date) of the rejections of  the 


 

















 


application for registration issued by SAFE and SAIC in respect of the Pledge over Deposit Certificates of such supplement and a
copy (certified by the Borrower to be true, complete and up-to-date) of the rejections of the application for approval  issued by MOFCOM in respect of the Pledge over Deposit Certificates relating to such supplement; provided further that if the Borrower still
fails (upon using its best efforts) to obtain such rejections of application,
the Borrower shall procure that there shall be delivered to the Facility Agent  within 90 days after the date of such change in
balance, a copy (certified by the
Borrower to be true, complete and up-to-date) of the postmarked receipt
of the registration mail(s) evidencing that applications to SAFE, SAIC and
MOFCOM for the registration and approval in respect of the Pledge over Deposit Certificates of such supplement have been delivered to SAFE, SAIC and MOFCOM
respectively; and


 


(c)                                      procure that there shall be delivered to the Facility
Agent  within
90 days after the date of such change in balance, a
legal opinion (with respect the Pledge over Deposit Certificates) issued by PRC
counsel to the Facility Agent and in form and substance satisfactory to the Facility Agent;


 


20.                           in respect of any
other supplement relating to the Pledge over Deposit Certificates which is executed after the
date of the Pledge over Deposit Certificates in accordance with any Finance
Document:


 


(a)                                      use its best efforts to procure that there shall be delivered to the Facility Agent  within 90 days after the date of such supplement, a copy (certified by the Borrower to be true,
complete and up-to-date) of the registrations with SAFE and SAIC in respect of the Pledge over Deposit Certificates of such supplement and a
copy (certified by the Borrower to be true, complete and up-to-date) of the
approval of MOFCOM in respect of the Pledge over Deposit Certificates relating to such supplement, provided that if the Borrower fails to
obtain (upon using its best efforts) such registrations and approval, the Borrower
shall use its best effort to procure that there shall be delivered to the Facility Agent  within 90 days after the date of such supplement, a copy (certified by the Borrower to be true,
complete and up-to-date) of the rejections of  the application for registration issued by SAFE and SAIC in respect of the Pledge over Deposit Certificates of such supplement and a
copy (certified by the Borrower to be true, complete and up-to-date) of the rejections of the application for approval  issued by MOFCOM in respect of the Pledge over Deposit Certificates relating to such supplement; provided further that if the Borrower still
fails (upon using its best efforts) to obtain such rejections of application,
the Borrower shall procure that there shall be delivered to the Facility Agent  within 90 days after the date of such supplement, a copy (certified by the Borrower to be true,
complete and up-to-date) of the postmarked receipt of the
registration mail(s) evidencing that applications to SAFE, SAIC and MOFCOM
for the registration and approval in
respect of the Pledge over Deposit Certificates of such supplement
have been delivered to SAFE, SAIC and MOFCOM respectively; and


 

















 


(b)                                     procure that there shall be delivered to the Facility
Agent  within
90 days after the date of such supplement, a
legal opinion (with respect the Pledge over Deposit Certificates) issued by PRC
counsel to the Facility Agent and in form and substance satisfactory to the
Facility Agent;


 


21.                           ensure that, immediately after the execution of the Share
Charge over Holdco, a copy of the updated register of members and register of
transfers of Holdco, as certified by its registered agent, is delivered to the
Security Agent;


 


22.                           ensure that (in the case where any Lender Accession Memorandum relating
to any Tranche is delivered in accordance with Clause 4 (Accession of Lenders)) that, to the extent
required by the Facility Agent (upon the advice of its legal counsel), within
90 days after the Utilisation of such Tranche:


 


(a)                                      all applicable Authorisations evidencing that each
Lender (that has become party hereto pursuant to any Lender Accession
Memorandum relating to such Tranche) has become one of the beneficiaries of the
Transaction Security shall have been obtained and effected, and copies of such
Authorisations shall have been delivered to the Facility Agent; and


 


(b)                                     a legal opinion issued by PRC counsel to the Facility
Agent and in form and substance satisfactory to the Facility Agent shall have
been delivered to the Facility Agent (in respect of, among other things, the
Authorisations referred to in paragraph 22(a)).


 


Part III         Other documents and evidence


 


Each Obligor party hereto shall ensure that
there shall be delivered to the Facility Agent, in respect of each Security
Document entered into pursuant to any paragraph under Part II (Security) above (other than those
delivered under Schedule 2 (Conditions
Precedent for initial Utilisation)), each of the following in form
and substance satisfactory to the Facility Agent (such delivery to be made by no
later than 5 Business Days after the execution of such Security Document or
such later date as the Facility Agent may agree):


 


23.                           such Security Document duly executed (where appropriate, under seal) and
delivered by each Obligor party thereto (each an “Applicable Obligor”);


 


24.                           in respect of each Applicable Obligor:


 


(a)                                      copies of the constitutional documents of that
Applicable Obligor;


 


(b)                                     copies of the resolution(s) of the board of
directors (or equivalent body) of, and/or resolution(s) (as appropriate,
based on the advice of counsel to the Facility Agent) signed by all holders of
the issued shares and/or equity interests in, that Applicable Obligor:


 


(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 to be signed and/or
despatched by it under or in connection with the Finance Documents to which it
is a party;


 


(c)                                      a specimen signature of each person authorised by the
resolution(s) referred to in paragraph 24(b) above;


 


(d)                                     a certificate of that Applicable Obligor (signed on
behalf of that Applicable Obligor by the resolution(s) referred to in
paragraph  24(b) above) confirming
that guaranteeing and/or securing, as appropriate, the Total Commitments
(including any increase thereto pursuant to the delivery of Lender Accession
Memorandum(s) from time to time) would not cause any guarantee, security
or similar limit binding on that Applicable Obligor to be exceeded; and


 


(e)                                      a certificate of an authorised signatory of that
Applicable Obligor certifying that each copy document specified in this
Schedule and/or any document or evidence delivered hereunder in copy form is
correct, complete and in full force and effect as at a date no earlier than the
date of such certificate; and


 


25.                           the following legal opinions (if not already covered under Part II
(Security) above):


 


(a)                                      a legal opinion of the legal advisers to the Facility
Agent in the jurisdiction of incorporation or establishment of each Applicable
Obligor, in form and substance satisfactory to the Facility Agent; and


 


(b)                                     a legal opinion of the legal advisers to the Facility
Agent in the jurisdiction of any laws that are expressed to govern such
Security Document, in form and substance satisfactory to the Security Agent.


 


Part IV        Relevant Permitted Reorganisation


 


26.                           Each Obligor party hereto shall ensure that there shall be delivered to
the Facility Agent, promptly (but in any event by no later than 5 Business Days)
after completion of the Relevant Permitted Reorganisation, each of the
following in form and substance satisfactory to the Facility Agent:


 


(a)                                      a certified copy of the register of members of Cayman
Co evidencing that the entire issued share capital of Cayman Co is owned as to
90% by Premium Sino, as to 4.5% by Wise Worldwide, as to 1.5% by King Da and as
to 4% by Prosperia; and


 


(b)                                     a certified copy of the Register of Members (as
defined in the New Share Charge over Holdco) of Holdco evidencing that the
entire issued share capital of Holdco is owned by Cayman Co, together with
evidence that such Register of Members has been filed with the Registrar of Corporate Affairs (as
defined in the New Share Charge over Holdco).


 


27.                           If application to SAFE for the filing of the particulars of the Second
Amendment 


 

















 


Agreement
and this Agreement is advised by the legal advisers in the PRC to the Facility
Agent to be necessary or desirable (and evidence of such application is
required to be delivered to the Facility Agent pursuant to paragraph 6(b) of
Schedule 1 (Conditions Precedent)
to the Second Amendment Agreement), the Borrower shall ensure that there shall
be delivered to the Facility Agent, promptly (but in any event by no later than
such timing as notified by the Facility Agent to the Borrower in writing
(acting on the advice of its legal advisers in the PRC)) evidence (in form and
substance satisfactory to the Facility Agent) of acceptance of such filing by
SAFE.


 

















 


SIGNATURES


 


THE BORROWER


 


TIANJIN NEW HIGHLAND SCIENCE
AND TECHNOLOGY DEVELOPMENT CO., LTD.


 


 


	
  /s/ Liu Qingzeng

  	
   

  
	
   

  
	
  (Name of
  Authorized Signatory)

  
	
   

  
	
  Name: Liu Qingzeng

  



 


 


	
  Address:

  	
  

  
	
   

  	
   

  
	
  Telephone:

  	
  +86-22-6635-1185

  
	
   

  	
   

  
	
  Fax:

  	
  +86-22-6635-1181

  
	
   

  	
   

  
	
  Attention:

  	
  Mr
  Liu Qingzeng

  



 


SIGNATURE
PAGE TO THE SECOND AMENDMENT AGREEMENT


 

















 


PARENTCO


 


INTERNATIONAL PETROLEUM
SERVICES CORPORATION LIMITED


 


 


	
  /s/ Liu Qingzeng

  	
   

  
	
   

  
	
  (Name of
  Authorized Signatory)

  
	
   

  
	
  Name: Liu Qingzeng

  



 


 


	
  Address:

  	
  

  
	
   

  	
   

  
	
  Telephone:

  	
  +86-10-8712-5567

  
	
   

  	
   

  
	
  Fax:

  	
  +86-10-8712-5500

  
	
   

  	
   

  
	
  Attention:

  	
  Mr
  Liu Qingzeng

  



 


SIGNATURE
PAGE TO THE SECOND AMENDMENT AGREEMENT


 

















 


HOLDCO


 


SUPERPORT LIMITED


 


 


	
  /s/ Liu Qingzeng

  	
   

  
	
   

  
	
  (Name of
  Authorized Signatory)

  
	
   

  
	
  Name: Liu Qingzeng

  



 


 


	
  Address:

  	
  

  
	
   

  	
   

  
	
  Telephone:

  	
  +86-22-6635-1185

  
	
   

  	
   

  
	
  Fax:

  	
  +86-22-6635-1181

  
	
   

  	
   

  
	
  Attention:

  	
  Mr
  Liu Qingzeng

  



 


SIGNATURE
PAGE TO THE SECOND AMENDMENT AGREEMENT


 

















 


CAYMAN
CO


 


SINOTECH
ENERGY LIMITED


 


 


	
  /s/ Liu Qingzeng

  	
   

  
	
   

  
	
  (Name of
  Authorized Signatory)

  
	
   

  
	
  Name: Liu Qingzheng

  



 


 


	
  Address:

  	
  3/F,
  No. 19 Ronghua South Road

  
	
   

  	
  Beijing
  Economic-Technological Development Area

  
	
   

  	
  Beijing
  100176, People’s Republic of China

  



 


	
  Telephone:

  	
  +86
  10 8712 5555

  
	
  Fax:

  	
  +86 10 8712 5500

  
	
   

  	
   

  
	
  Attention:

  	
  Chief Executive Officer

  



 


SIGNATURE
PAGE TO THE SECOND AMENDMENT AGREEMENT


 

















 


THE FACILITY AGENT


 


DEUTSCHE BANK AG, HONG KONG BRANCH


 


 


	
  /s/ Aric Kay-Russell

  	
   

  	
  /s/Ng Yue Min

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Name of
  Authorized Signatory)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  



 


 


	
  Address:

  	
  48/F, Cheung Kong Center, 2 Queen’s Road
  Central, Hong Kong

  
	
   

  	
   

  
	
  Fax:

  	
  +852 2203 7320/7323

  
	
   

  	
   

  
	
  Attention:

  	
  Trust
  and Securities Services

  



 


SIGNATURE
PAGE TO THE SECOND AMENDMENT AGREEMENT


 

















 


THE CALCULATION AGENT


 


DEUTSCHE BANK AG, HONG KONG
BRANCH


 


 


	
  /s/ Aric Kay-Russell

  	
   

  	
  /s/Ng Yue Min

  
	
   

  	
   

  	
   

  
	
  (Name of
  Authorized Signatory)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  



 


 


	
  Address:

  	
  55th Floor, Cheung Kong
  Center, Queen’s Road Central, Hong Kong

  
	
   

  	
   

  
	
  Telephone:

  	
  +852-2203-8787

  
	
   

  	
   

  
	
  Fax:

  	
  +852-2203-7266

  



 


SIGNATURE
PAGE TO THE SECOND AMENDMENT AGREEMENT


 

















 


THE SECURITY AGENT


 


DB TRUSTEES (HONG KONG)
LIMITED


 


 


	
  /s/ Aric Kay-Russell

  	
   

  	
  /s/Ng Yue Min

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Name of
  Authorized Signatory)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  



 


 


	
  Address:

  	
  48/F, Cheung Kong Center, 2 Queen’s Road
  Central, Hong Kong

  
	
   

  	
   

  
	
  Fax:

  	
  +852
  2203 7320/7323

  
	
   

  	
   

  
	
  Attention:

  	
  Managing
  Director

  



 


SIGNATURE PAGE TO THE SECOND AMENDMENT AGREEMENT