Loan Agreement - Sina.com and Sun Television Cybernetworks Holdings Ltd.
DATED THE 12TH DAY OF SEPTEMBER 2001
SUN TELEVISION CYBERNETWORKS HOLDINGS LIMITED
(Borrower)
and
SINA.COM
(Lender)
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LOAN AGREEMENT
US$4,000,000
TERM LOAN FACILITY
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[PRESTON GATES ELLIS LOGO]
Solicitors
10th Floor,
Hutchison House,
10 Harcourt Road,
Central, Hong Kong.
Tel: (852) 2511 5100 / 2230 3500
Fax: (852) 2511 9515 / 2899 2996
Website: www.prestongates.com
Our ref.: VTSO/NKA/LL
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CONTENTS
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NUMBER CLAUSE HEADING PAGE
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1. Interpretation....................................................................1
2. The Facility......................................................................4
3. Conditions Precedent..............................................................5
4. Advance...........................................................................6
5. Interest..........................................................................6
6. Repayment.........................................................................7
7. Prepayment .......................................................................7
8. Market Disruption.................................................................7
9. Taxes and other Deductions........................................................8
10. Fees and Expenses.................................................................8
11. Payments and Evidence of Debt.....................................................9
12. Representations and Warranties...................................................10
13. Undertakings.....................................................................11
14. Events of Default................................................................12
15. Default Interest.................................................................14
16. Indemnities and Set-off..........................................................15
17. Waiver and Severability..........................................................15
18. Miscellaneous....................................................................15
19. Assignment.......................................................................16
20. Notices..........................................................................16
21. Governing Law and Jurisdiction...................................................17
EXECUTION................................................................................19
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THIS AGREEMENT is made on the 12th day of September 2001
BETWEEN:
(1) SUN TELEVISION CYBERNETWORKS HOLDINGS LIMITED, a company incorporated in
Bermuda whose registered office is at Cedar House, 41 Cedar Avenue,
Hamilton HM12, Bermuda as borrower (the "BORROWER"); and
(2) SINA.COM whose registered office is at 1313 Geneva Drive, Sunnyvale CA
94089, United States of America as lender (the "LENDER").
IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.01 Definitions
In this Agreement, unless the context requires otherwise:
"Advance" means the principal amount advanced to the
Borrower pursuant to Clause 4;
"Banking Day" means a day (other than a Saturday or
Sunday) on which banks are open for
business in Hong Kong;
"Charge" means:
(a) any mortgage, charge, pledge, lien,
encumbrance, hypothecation or other
security interest or security
arrangement of any kind;
(b) any arrangement whereby any rights are
subordinated to any rights of any
third party;
(c) any contractual right of set-off; and
(d) the interest of a vendor or lessor
under any conditional sale agreement,
lease, hire purchase agreement or
other title retention arrangement
other than an interest in a lease or
hire purchase agreement which arose in
the ordinary course of business;
"Completion Date" shall have the meaning ascribed thereto in
the Share Purchase Agreement;
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"Event of Default" means any event or circumstance specified
as such in Clause 14; and "prospective
Event of Default" means any event or
circumstance which with the giving of
notice and/or the passage of time and/or
the making of any relevant determination
and/or the forming of any necessary opinion
would be an Event of Default;
"Facility" means the loan facility to be made
available under this Agreement;
"Final Repayment Date" means the date falling thirty-six (36)
months after the date on which the Advance
is made;
"Hong Kong" means the Hong Kong Special Administrative
Region of the People's Republic of China;
"Interest Period" means, in relation to the Loan, an interest
period ascertained in accordance with
Clause 5;
"LIBOR" means, in relation to any relevant sum and
any relevant period, the rate determined by
the Lender to be:
(a) the arithmetic mean (rounded up if
necessary to the nearest integral
multiple of 1/16%) of the respective
rates shown on the Reuters Monitor
Screen as being the rate per annum at
which US Dollar deposits are offered
for a period equal or comparable to
such relevant period at or about 11:00
a.m. (London time) on the second
London Banking Day before the first
day of such relevant period; for this
purpose "Reuters Monitor Screen" means
the display designated as page "LIBO"
on the Reuters Monitor system or such
other page as may replace page "LIBO"
on that system for the purpose of
displaying offered rates for US Dollar
deposits; or
(b) if at or about such time on any
relevant day less than two (2) such
rates appear on the Reuters Monitor
Screen, the rate per annum at which US
Dollar deposits in an amount
comparable to such sum are or would be
offered to the Lender for such
relevant period by prime banks in the
London interbank market at or about
11:00 a.m. (London time) on the second
London Banking Day before the
commencement of such relevant period;
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"Loan" means the aggregate principal amount drawn
and for the time being outstanding under
the Facility;
"London Banking Day" means a day (other than a Saturday or
Sunday) on which US Dollar deposits may be
dealt in on the London interbank market;
"Margin" means one per cent (1%);
"Repayment Date" means the date on which the Loan is fully
repaid in accordance with this Agreement
which shall not be later than the Final
Repayment Date;
"Share Purchase Agreement" means an agreement dated the date hereof
made between, inter alia, the Lender and Ms
Yang Lan for the sale by Ms Yang Lan to the
Lender of certain shares of the Borrower;
"USA" means the United States of America;
"US Dollars" and "US$" mean the lawful currency for the time being
of USA;
"Yang Lan Loan Agreement" means the agreement of even date herewith
between the Lender and Ms. Yang Lan for a
loan facility of US$4,000,000 to be made
available to the Lender in accordance with
the provisions thereof.
1.02 Construction
In this Agreement, unless the context requires otherwise, any reference
to:
an "authorisation" includes any approvals, consents, licences, permits,
franchises, permissions, registrations, resolutions, directions,
declarations and exemptions;
"including" or "includes" means including or includes without
limitation;
"indebtedness" includes any obligation of any person for the payment or
repayment of money, whether present or future, actual or contingent,
including but not limited to any such obligation:
(a) under or in respect of any acceptance, bill, bond, debenture, note
or similar instrument;
(b) under or in respect of any guarantee, indemnity, counter-security or
other assurance against financial loss;
(c) in respect of the purchase, hire or lease of any asset or service;
or
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(d) in respect of any indebtedness of any other person whether or not
secured by or benefiting from a Charge on any property or asset of
such person;
"law" and/or "regulation" includes any constitutional provisions,
treaties, conventions, statutes, acts, laws, decrees, ordinances,
subsidiary and subordinate legislation, orders, rules and regulations
having the force of law and rules of civil and common law and equity;
an "order" includes any judgment, injunction, decree, determination or
award of any court, arbitration or administrative tribunal;
a "person" includes any individual, company, body corporate or
unincorporate or other juridical person, partnership, firm, joint
venture or trust or any federation, state or subdivision thereof or any
government or agency of any thereof;
"tax" includes any tax, levy, duty, charge, impost, fee, deduction or
withholding of any nature now or hereafter imposed, levied, collected,
withheld or assessed by any taxing or other authority and includes any
interest, penalty or other charge payable or claimed in respect thereof
and "taxation" shall be construed accordingly.
1.03 Successors and Assigns
The expressions "Borrower" and "Lender" shall where the context permits
include their respective successors and permitted assigns and any
persons deriving title under them.
1.04 Miscellaneous
In this Agreement, unless the context requires otherwise, references to
statutory provisions shall be construed as references to those
provisions as replaced, amended, modified or re-enacted from time to
time; words importing the singular include the plural and vice versa and
words importing a gender include every gender; references to this
Agreement shall be construed as references to such document as the same
may be amended or supplemented or novated from time to time; unless
otherwise stated, references to Clauses are to clauses of this
Agreement. Clause headings are inserted for reference only and shall be
ignored in construing this Agreement.
2. THE FACILITY
2.01 Amount
The aggregate principal amount of the Facility available to the Borrower
is four million US Dollars (US$4,000,000).
2.02 Purpose
The proceeds of the Facility shall be used exclusively by the Borrower
for working capital purposes.
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3. CONDITIONS PRECEDENT
3.01 Conditions
The Lender shall not be obliged to make the Advance to the Borrower
unless it shall have received:
Agreement
(a) an original counterpart of this Agreement duly executed by the
Borrower;
Corporate Documents
(b) in relation to the Borrower, certified true copies of:
(i) its certificate of incorporation, memorandum and articles of
association, bye-laws (if any) and all other constitutional
documents; and
(ii) resolutions of its board of directors approving the borrowing
on the terms of this Agreement and authorising a person or
persons to execute this Agreement and any other notices or
documents required in connection herewith;
Miscellaneous
(c) a certificate from the company secretary or a director of the
Borrower certifying that all authorisations have been obtained and
all necessary filings, registrations and other formalities have been
completed in order to ensure that this Agreement is valid and
binding;
(d) legal opinions covering such matters of Bermudan and other laws
relevant to this transaction as the Lender may reasonably request;
(e) written confirmation of acceptance of appointment from each agent
for service of process named in Clause 21.03.
3.02 Form of Documents and Evidence
All the documents and evidence referred to in Clause 3.01 shall be in
form and substance satisfactory to the Lender (acting reasonably).
Copies required to be certified shall be certified in a manner
satisfactory to the Lender (acting reasonably) by a director or
responsible officer of the Borrower.
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4. ADVANCE
4.01 Availability of the Advance
Subject to Clause 4.02 and the other terms and conditions of this
Agreement, the Lender shall, in accordance with Clause 11.01, advance
four million US Dollars (US$4,000,000) to the Borrower on the Completion
Date.
4.02 Conditions to the Making of the Advance
The making of the Advance is also subject to the conditions that:
(a) the requirements of Clause 3 shall have been satisfied on or before
the Completion Date or such later time as the Lender may agree;
(b) no Event of Default or prospective Event of Default shall have
occurred and all representations and warranties made by the Borrower
in this Agreement shall be true and correct as at the Completion
Date with reference to the facts and circumstances then subsisting;
and
(c) US$4,000,000 is advanced to the Lender in accordance with the
provisions of the Yang Lan Loan Agreement.
5. INTEREST
5.01 Interest
The Borrower shall pay interest on the Loan in accordance with the
provisions of this Clause.
5.02 Interest Periods
The Interest Periods applicable to the Loan shall be twelve (12) months,
provided that:
(a) the first Interest Period in relation to the Loan shall commence on
the date on which the Advance is made;
(b) each subsequent Interest Period shall commence on the last day of
the preceding Interest Period; and
(c) any Interest Period which would otherwise extend beyond the
Repayment Date shall instead end on that date, subject to adjustment
in accordance with Clause 11.04.
5.03 Rate and Calculation
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The rate of interest applicable to the Loan or the relevant part thereof
for each Interest Period shall be the rate per annum determined by the
Lender to be the aggregate of LIBOR for that Interest Period and the
Margin. Interest shall accrue from day to day, shall in the case of an
Interest Period of less than twelve (12) months be calculated on the
basis of the actual number of days elapsed and a 360 day year, including
the first day of the period during which it accrues but excluding the
last, and shall be paid in arrear on the Repayment Date. For the
avoidance of doubt, interest shall be calculated on a simple and not
compound basis.
6. REPAYMENT
The Borrower shall repay the Loan in full together with any interest
accrued thereon on the Repayment Date, subject to adjustment in
accordance with Clause 11.04.
7. PREPAYMENT
7.01 Voluntary Prepayment
The Borrower may prepay the Loan in full on any Banking Day, provided
that:
(a) the Borrower shall have given to the Lender not less than four (4)
Banking Days' prior written notice specifying the amount and date of
prepayment; and
(b) all sums (other than the Loan and interest accrued thereon) then due
and payable under this Agreement shall have been paid.
7.02 Provisions applicable to Prepayments
Any notice of prepayment given by the Borrower under this Agreement
shall be irrevocable and the Borrower shall be bound to make a
prepayment in accordance therewith. The Borrower may not prepay the Loan
or any part thereof except in accordance with the express terms of this
Agreement. Amounts prepaid may not be reborrowed under this Agreement.
If the Loan is prepaid under this Agreement, the Borrower shall also pay
to the Lender, at the time of prepayment, all interest accrued up to the
date of prepayment and all other sums payable by the Borrower under this
Agreement.
8. MARKET DISRUPTION
8.01 Market Disruption
If in relation to any Interest Period the Lender determines (which
determination shall be conclusive and binding) that by reason of
circumstances affecting the London interbank market generally, adequate
and fair means do not exist for ascertaining LIBOR for that Interest
Period, the Lender shall promptly notify the Borrower accordingly.
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8.02 Alternative Basis by Agreement
Immediately following such notification, the parties hereto shall
negotiate in good faith with a view to agreeing upon an alternative
basis for determining the applicable interest rate. If an alternative
basis is agreed in writing within a period of thirty (30) days after
such notification or such longer period for discussion as the parties
may agree, the alternative basis shall take effect in accordance with
its terms.
8.03 Alternative Basis Determined by Lender
If an alternative basis is not so agreed, the Borrower shall pay
interest to the Lender on the Loan for the relevant Interest Period at
the rate per annum determined by the Lender to be equal to the aggregate
of (i) the Margin and (ii) the cost (as certified by the Lender (acting
reasonably) to the Borrower and expressed as an annual interest rate) to
the Lender of maintaining the Loan during the relevant Interest Period.
9. TAXES AND OTHER DEDUCTIONS
9.01 No Deductions or Withholdings
All sums payable by the Borrower under this Agreement shall be paid in
full without set-off or counterclaim or any restriction or condition and
free and clear of any tax or other deductions or withholdings of any
nature. If the Borrower or any other person is required by any law or
regulation to make any deduction or withholding (on account of tax or
otherwise) from any payment, the Borrower shall, together with such
payment, pay such additional amount as will ensure that the Lender
receives (free and clear of any tax or other deductions or withholdings)
the full amount which it would have received if no such deduction or
withholding had been required. The Borrower shall promptly forward to
the Lender copies of official receipts or other evidence showing that
the full amount of any such deduction or withholding has been paid over
to the relevant taxation or other authority.
9.02 Advance Notification
If at any time the Borrower becomes aware that any such deduction,
withholding or payment contemplated by Clause 9.01 is or will be
required, it shall immediately notify the Lender and supply all
available details thereof.
10. FEES AND EXPENSES
10.01 Expenses
Each party shall bear all costs, charges and expenses (including legal
and other fees and all other out-of-pocket expenses) incurred by it in
connection with the negotiation,
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preparation, execution and (where relevant) registration of this
Agreement and any other documentation required hereunder.
10.02 Enforcement Costs
The Borrower shall from time to time forthwith on demand pay to or
reimburse the Lender for all costs, charges and expenses (including
legal and other fees on a full indemnity basis and all other
out-of-pocket expenses) incurred by it in exercising any of its rights
or powers under this Agreement or in suing for or seeking to recover any
sums due under this Agreement or otherwise preserving or enforcing its
rights under this Agreement or in defending any claims brought against
it in respect of this Agreement.
10.03 Taxes
The Borrower shall pay all present and future stamp and other like
duties and taxes and all notarial, registration, recording and other
like fees which may be payable in respect of this Agreement and shall
indemnify the Lender against all liabilities, costs and expenses which
may result from any default in paying such duties, taxes or fees.
11. PAYMENTS AND EVIDENCE OF DEBT
11.01 Advance
The Borrower hereby directs that the Advance shall be made by payment to
such account in Hong Kong as the Borrower shall have previously notified
to the Lender.
11.02 Payments by Borrower
All payments by the Borrower under this Agreement shall be made not
later than 2:00 p.m. (Hong Kong time) on the Repayment Date. The Lender
hereby directs the Borrower to make all such payments by delivery to the
Lender of a bankers' draft payable to or to the order of the Lender
(drawn on a bank acceptable to the Lender) for the relevant amount due
in immediately available funds or by crediting such payment to such
account as the Lender may notify the Borrower in writing at least two
(2) Banking Days prior to the Repayment Date.
11.03 Allocation of Receipts
If any amount received by the Lender by or on behalf of the Borrower
under this Agreement is less than the full amount due, the Lender shall
have the right to allocate the amount received towards principal,
interest and/or other sums owing hereunder as it considers appropriate.
11.04 Banking Days
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If any sum would otherwise become due for payment on a non-Banking Day
that sum shall become due on the next following Banking Day and interest
shall be adjusted accordingly.
11.05 Evidence of Debt
The Lender shall maintain on its books a set of accounts recording the
amounts from time to time owing by the Borrower hereunder. In any legal
proceeding and otherwise for the purposes of this Agreement the entries
made in such accounts shall, in the absence of fraud or manifest error,
be prima facie evidence as to the existence and amounts of the
obligations of the Borrower recorded therein.
11.06 Certificate Conclusive and Binding
Where any provision of this Agreement provides that the Lender may
certify or determine an amount or rate payable by the Borrower, a
certificate by the Lender as to such amount or rate shall be conclusive
and binding on the Borrower in the absence of fraud or manifest error
save that, if requested in writing to do so by the Borrower, the Lender
shall provide evidence satisfactory to the Borrower (acting reasonably)
as to the method of calculation of such amount or rate (as the case may
be).
12. REPRESENTATIONS AND WARRANTIES
12.01 Representations and Warranties
The Borrower represents and warrants to the Lender that:
(a) the Borrower is a company duly incorporated with limited liability
and validly existing under the laws of the place of its
incorporation, and has full power, authority and legal right to own
its property and assets and to carry on its business;
(b) the Borrower has full power, authority and legal right to enter into
and engage in the transactions contemplated by this Agreement and
has taken or obtained all necessary corporate and other action and
consents to authorise the execution and performance of this
Agreement;
(c) this Agreement constitutes legal, valid and binding obligations of
the Borrower;
(d) neither the execution of this Agreement nor the performance by the
Borrower of any of its obligations or the exercise of any of its
rights hereunder will conflict with or result in a breach of any
law, regulation, judgment, order, authorisation, agreement or
obligation applicable to it or cause any limitation placed on it or
the powers of its directors to be exceeded or result in the creation
of or oblige the Borrower to create a Charge in respect of any of
its property or assets;
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(e) all authorisations required from any governmental or other authority
or from any shareholders or creditors of the Borrower for or in
connection with the execution, validity and performance of this
Agreement have been obtained and are in full force and effect and
there has been no default under the conditions of any of the same;
(f) all filings and registration of any document required to be filed or
registered with, and all taxes required to be paid to, any authority
in Hong Kong in order to ensure the validity or admissibility in
evidence in proceedings of this Agreement in Hong Kong have been
performed or paid (as the case may be);
(g) the Borrower is not in default under any law, regulation, judgment,
order, authorisation, agreement or obligation applicable to it or
its assets or revenues, the consequences of which default could
materially and adversely affect its ability to perform its
obligations under this Agreement and no Event of Default or
prospective Event of Default has occurred;
(h) the Borrower is generally subject to civil and commercial law and to
legal proceedings and neither the Borrower nor any of its assets or
revenues is entitled to any immunity or privilege (sovereign or
otherwise) from any set-off, judgment, execution, attachment or
other legal process.
12.02 Continuing Representation and Warranty
The Borrower also represents and warrants to and undertakes with the
Lender that the foregoing representations and warranties will be true
and accurate on the last day of each Interest Period with reference to
the facts and circumstances subsisting at that time.
12.03 Acknowledgment of Reliance
The Borrower acknowledges that the Lender has entered into this
Agreement in reliance upon the representations and warranties contained
in this Clause.
13. UNDERTAKINGS
13.01 Affirmative Undertakings
The Borrower undertakes and agrees with the Lender throughout the
continuance of this Agreement and so long as any sum remains owing
hereunder that the Borrower will, unless the Lender otherwise agrees in
writing:
(a) keep proper records and books of account in respect of its business;
(b) promptly inform the Lender of the occurrence of any Event of Default
or prospective Event of Default;
(c) maintain its corporate existence and conduct its business in the
normal course;
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(d) maintain in full force and effect all such authorisations as are
referred to in Clause 12.01(e), and take immediate steps to obtain
and thereafter maintain in full force and effect any other
authorisations which may become necessary for the purposes stated
therein and comply with all conditions attached to all
authorisations so obtained;
(e) ensure that its obligations under this Agreement at all times rank
at least pari passu with all other unsecured and unsubordinated
obligations of the Borrower;
(f) use the Facility exclusively for the purpose specified in Clause
2.02; and
(g) punctually pay all sums due from it to the Lender and otherwise
comply with its obligations under this Agreement.
13.02 Negative Undertakings
The Borrower undertakes and agrees with the Lender throughout the
continuance of this Agreement and so long as any sum remains owing
hereunder that the Borrower will not, unless the Lender otherwise agrees
in writing:
(a) purchase or redeem any of its issued shares or reduce its share
capital or make a distribution of assets or other capital
distribution to its shareholders unless in accordance with all
applicable laws, rules and regulations;
(b) materially change the nature of its business, sell, transfer or
otherwise assign, deal with or dispose of all or any substantial
part of its business or (except in the normal course of its
business) all or any substantial part of its assets or revenues,
whether by a single transaction or by a number of transactions
whether related or not;
(c) make or grant any loan or advance or guarantee or in any other
manner be or become directly or indirectly or contingently liable
for any indebtedness or other obligation of any other person, except
in the normal course of its business;
(d) create or attempt or agree to create or permit to arise or exist any
Charge over all or any substantial part of its property, assets or
revenues except any possessory lien arising by operation of law or
in the normal course of its business;
(e) enter into any agreement or obligation which is likely to materially
and adversely affect its ability to perform its obligations under
this Agreement.
14. EVENTS OF DEFAULT
14.01 Events of Default
Each of the following events and circumstances shall be an Event of
Default:
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(a) the Borrower fails to pay any sum payable under this Agreement when
due or otherwise in accordance with the provisions hereof;
(b) the Borrower fails duly and punctually to perform or comply with any
of its obligations or undertakings hereunder and, in respect only of
a failure which in the opinion of the Lender is capable of remedy
and which is not a failure to pay money, does not remedy such
failure to the Lender's reasonable satisfaction within twenty-one
(21) days (or such longer period as the Lender may approve) after
receipt of written notice from the Lender requiring it to do so;
(c) any representation or warranty made by the Borrower in this
Agreement is, at the time it is made, materially incorrect or
misleading;
(d) any indebtedness of the Borrower in an aggregate amount exceeding
US$500,000 (or its equivalent in another currency) (i) is not paid
when due within any applicable grace period in any agreement or
instrument relating to borrowing or (ii) becomes due and payable or
capable of being declared due and payable before its normal or
agreed maturity by reason of an event of default (howsoever
described);
(e) any of the authorisations referred to in Clause 12.01(e) is not
granted or ceases to be in full force and effect or is modified in a
manner which, in the reasonable opinion of the Lender, is likely to
materially and adversely affect the ability of the Borrower to
perform its obligations under this Agreement, or if any law,
regulation, judgment or order (or the repeal or modification of any
of the foregoing) suspends, materially and adversely varies,
terminates or excuses performance by the Borrower of any of its
obligations under this Agreement or purports to do any of the same;
(f) a creditor takes possession of all or any substantial part of the
business or assets of the Borrower or any execution or other legal
process is enforced against all or any substantial part of the
business or asset of the Borrower and is not discharged within
twenty-eight (28) days;
(g) any competent action shall be taken, any enactment shall be passed,
any judgment or order of a court of competent jurisdiction shall be
made or any effective resolution shall be passed for the winding-up,
insolvency, administration or dissolution of the Borrower or for the
appointment of a liquidator, receiver, administrator, trustee or
similar officer of the Borrower or of all or any part of its
business or assets;
(h) the Borrower stops or suspends payments to its creditors generally
or is unable or admits its inability to pay its debts as they fall
due or seeks to enter into any composition or other arrangement with
its creditors or is declared or becomes insolvent;
(i) the Borrower ceases or threatens to cease to carry on its business
or any substantial part thereof or materially changes the nature or
scope of its business
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or the Borrower disposes of or threatens to dispose of or any
governmental or other authority expropriates or threatens to
expropriate all or any substantial part of its business or assets;
(j) this Agreement or any provision hereof ceases for any reason to be
in full force and effect or is terminated or jeopardised or becomes
invalid or unenforceable or if there is any dispute regarding the
validity or enforceability of the same or if there is any purported
termination or repudiation of the same or it becomes impossible or
unlawful for the Borrower to perform any of its obligations
hereunder.
14.02 Declarations
If an Event of Default has occurred the Lender may, by written notice to
the Borrower:
(a) declare the Loan, accrued interest and all other sums payable
hereunder to be, whereupon they shall become, due and payable within
seven (7) Banking Days of the receipt of such notice without further
demand, notice or other legal formality of any kind; and
(b) declare the Facility terminated whereupon all obligations of the
Lender hereunder shall immediately cease.
15. DEFAULT INTEREST
15.01 Rate of Default Interest
If the Borrower fails to pay any sum payable under this Agreement when
due, the Borrower shall pay interest on such sum from and including the
due date to the date of actual payment (after as well as before
judgment) at the rate per annum determined by the Lender to be the
aggregate of:
(a) three per cent (3%);
(b) the Margin; and
(c) LIBOR (as determined by the Lender on such date or dates on or after
the due date for payment as the Lender may select) calculated with
reference to such periods and such amounts as the Lender considers
appropriate or, if any of the circumstances described in Clause 7.01
applies, the rate from time to time certified by the Lender (acting
reasonably) to be the rate representing the cost to it of funding
the unpaid sum by whatever means it considers to be appropriate.
15.02 Calculation of Default Interest
Interest at the rate or rates determined from time to time as aforesaid
shall accrue from day to day, shall be calculated on the basis of the
actual number of days elapsed and a
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360 day year, shall be compounded at the end of each successive funding
period considered appropriate by the Lender for the purposes of Clause
15.01 and shall be payable from time to time on demand.
16. INDEMNITIES AND SET-OFF
16.01 General Indemnity
The Borrower shall indemnify the Lender against all losses, liabilities,
damages, costs and expenses which the Lender may reasonably incur as a
consequence of any Event of Default or any breach by the Borrower of any
of its obligations under this Agreement or otherwise in connection with
this Agreement (including any interest or fees incurred in funding any
unpaid sum), but taking into account any interest paid by the Borrower
in respect of such unpaid sum under Clause 15).
16.02 Currency Indemnity
US Dollars shall be the currency of account and of payment in respect of
sums payable under this Agreement. If an amount is received in another
currency, pursuant to a judgment or order or in the liquidation of the
Borrower or otherwise, the Borrower's obligations under this Agreement
shall be discharged only to the extent that the Lender may purchase US
Dollars with such other currency in accordance with normal banking
procedures upon receipt of such amount. If the amount in US Dollars
which may be so purchased, after deducting any costs of exchange and any
other related costs, is less than the relevant sum payable under this
Agreement, the Borrower shall indemnify the Lender against the
shortfall. This indemnity shall be an obligation of the Borrower
independent of and in addition to its other obligations under this
Agreement and shall take effect notwithstanding any time or other
concession granted to the Borrower or any judgment or order being
obtained or the filing of any claim in the liquidation, dissolution or
bankruptcy (or analogous process) of the Borrower.
17. WAIVER AND SEVERABILITY
Time is of the essence of this Agreement but no failure or delay by the
Lender or the Borrower in exercising any right, power or remedy
hereunder shall impair such right, power or remedy or operate as a
waiver thereof, nor shall any single or partial exercise of the same
preclude any further exercise thereof or the exercise of any other
right, power or remedy. The rights, powers and remedies herein provided
are cumulative and do not exclude any other rights, powers and remedies
provided by law. If at any time any provision of this Agreement is or
becomes illegal, invalid or unenforceable in any respect under the law
of any jurisdiction, the legality, validity and enforceability of such
provision under the law of any other jurisdiction, and of the remaining
provisions of this Agreement, shall not be affected or impaired thereby.
18. MISCELLANEOUS
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18.01 Execution
This Agreement shall become effective as of the date hereof.
18.02 Entire Agreement
This Agreement and the documents referred to herein constitute the
entire obligation of the Lender and the Borrower respectively and
supersede any previous expressions of intent or understandings in
respect of this transaction.
18.03 Publicity
No announcement or other publicity in connection with this Agreement or
relating in any way to the Facility shall be made or arranged by any
party, except as may be required by law or the rules of any stock
exchange or applicable regulatory authorities or except with the prior
written consent of the other party, such consent not to be unreasonably
withheld or delayed.
18.04 Amendments in Writing
Any amendment or waiver of any provision of this Agreement and any
waiver of any default under this Agreement shall only be effective if
made in writing and signed by the parties hereto.
18.05 Counterparts
This Agreement may be executed in counterparts and by different parties
on separate counterparts which when taken together shall be deemed to
constitute one agreement.
19. ASSIGNMENT
Neither party may assign any of its rights and benefits hereunder.
20. NOTICES
20.01 Delivery
Each notice, demand or other communication to be given or made under
this Agreement shall be in writing and delivered or sent to the relevant
party at its address or facsimile number set out below (or such other
address or facsimile number as the addressee has by five (5) days' prior
written notice specified to the other party):
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To the Borrower: Sun Television Cybernetworks Holdings Limited
6101, The Center,
99 Queen's Road Central,
Hong Kong.
Fax Number: (852) 2169 0292
Attention: Bruno Wu
To the Lender: Sina.com
1313 Geneva Drive
Sunnyvale
California 94089
U.S.A.
Fax Number: (1) 408 548 0068
Attention: Charles Chao
20.02 Deemed Delivery
Any notice, demand or other communication so addressed to the relevant
party shall be deemed to have been delivered (a) if given or made by
letter, when actually delivered to the relevant address; and (b) if
given or made by facsimile, when despatched, provided that, if such day
is not a working day in the place to which it is sent, such notice,
demand or other communication shall be deemed delivered on the next
following working day at such place and further provided that the sender
retains a mechanical or electronically generated confirmation of the
successful transmission of such facsimile.
20.03 Language
Each notice, demand or other communication hereunder and any other
documents required to be delivered hereunder shall be in English.
21. GOVERNING LAW AND JURISDICTION
21.01 Law
This Agreement and the rights and obligations of the parties hereunder
are governed by and shall be construed in accordance with the laws of
Hong Kong.
21.02 Jurisdiction
Each party agrees that any legal action or proceeding arising out of or
relating to this Agreement may be brought in the courts of Hong Kong and
irrevocably submits to the non-exclusive jurisdiction of such courts.
21.03 Process Agent
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The Lender irrevocably appoints Slaughter and May of 27th Floor, Two
Exchange Square, Hong Kong as its agent to receive and acknowledge on
its behalf service of any writ, summons, order, judgment or other notice
of legal process in Hong Kong. If for any reason the agent named above
(or its successor) no longer serves as agent of the Lender for this
purpose, the Lender shall promptly appoint a successor agent
satisfactory to the Borrower and notify the Borrower thereof, provided
that until the Borrower receives such notification, it shall be entitled
to treat the agent named above (or its said successor) as the agent of
the Lender for the purposes of this Clause. The Lender agrees that any
such legal process shall be sufficiently served on it if delivered to
such agent for service at its address for the time being in Hong Kong
whether or not such agent gives notice thereof to the Lender.
21.04 No Limitation on Right of Action
Nothing herein shall limit the right of either party to commence any
legal action against the other and/or its property in any other
jurisdiction or to serve process in any manner permitted by law, and the
taking of proceedings in any jurisdiction shall not preclude the taking
of proceedings in any other jurisdiction whether concurrently or not.
21.05 Waiver, Final Judgment Conclusive
Each party irrevocably and unconditionally waives any objection which it
may now or hereafter have to the choice of Hong Kong as the venue of any
legal action arising out of or relating to this Agreement and agrees not
to claim that any court thereof is not a convenient or appropriate
forum. Each party also agrees that a final judgment against it in any
such legal action shall be final and conclusive and may be enforced in
any other jurisdiction, and that a certified or otherwise duly
authenticated copy of the judgment shall be conclusive evidence of the
fact and amount of its indebtedness.
21.06 Waiver of Immunity
Each party irrevocably and unconditionally waives any immunity to which
it or its property may at any time be or become entitled, whether
characterised as sovereign immunity or otherwise, from any set-off or
legal action in Hong Kong or elsewhere, including immunity from service
of process, immunity from jurisdiction of any court or tribunal, and
immunity of any of its property from attachment prior to judgment or
from execution of a judgment.
IN WITNESS whereof this Agreement has been executed by the parties hereto on the
date stated at the beginning of this Agreement.
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THE BORROWER
SIGNED by /s/ Bruno Wu )
BRUNO WU )
duly authorised for and on behalf of )
SUN TELEVISION )
CYBERNETWORKS HOLDINGS )
LIMITED )
in the presence of: )
)
.......................................... )
Signature of witness )
)
.......................................... )
Name of witness (block letters) )
) By executing this Agreement the
.......................................... ) signatory warrants that the
Address of witness ) signatory is duly authorised
) to execute this Agreement on
.......................................... ) behalf of Sun Television
Occupation of witness ) Cybernetworks Holdings Limited
THE LENDER
SIGNED by /s/ Daniel Mao )
DANIEL MAO )
duly authorised for and on behalf of )
SINA.COM )
in the presence of: )
)
.......................................... )
Signature of witness )
)
.......................................... )
Name of witness (block letters) )
)
.......................................... ) By executing this Agreement the
Address of witness ) signatory warrants that the
) signatory is duly authorised
.......................................... ) to execute this Agreement on
Occupation of witness ) behalf of Sina.com
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