UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13E-3

(Rule 13e-100)

(Amendment No. 4)

 

RULE 13e-3 TRANSACTION STATEMENT UNDER SECTION 13(E)

OF THE SECURITIES EXCHANGE ACT OF 1934

 

 

58.COM INC.

(Name of the Issuer)

 

58.com Inc.
Quantum Bloom Group Ltd
Quantum Bloom Company Ltd

Warburg Pincus China-Southeast Asia II (Cayman), L.P.
Warburg Pincus China-Southeast Asia II-E (Cayman), L.P.
WP China-Southeast Asia II Partners (Cayman), L.P.
Warburg Pincus China-Southeast Asia II Partners, L.P.
Warburg Pincus (Callisto) Global Growth (Cayman), L.P.
Warburg Pincus (Europa) Global Growth (Cayman), L.P.
Warburg Pincus Global Growth-B (Cayman), L.P.
Warburg Pincus Global Growth-E (Cayman), L.P.
WP Global Growth Partners (Cayman), L.P.
Warburg Pincus Global Growth Partners (Cayman), L.P.
Polarite Gem Holdings Group Ltd
General Atlantic Partners (Bermuda) IV, L.P.
General Atlantic Partners (Bermuda) III, L.P.
GAP Coinvestments CDA, L.P.
GAP Coinvestments V, LLC
GAP Coinvestments IV, LLC
GAP Coinvestments III, LLC
General Atlantic LLC
GAP (Bermuda) Limited
General Atlantic GenPar (Bermuda), L.P.
General Atlantic Singapore Interholdco Ltd.
General Atlantic Singapore Fund Pte. Ltd.
General Atlantic Singapore 58 Pte. Ltd.
General Atlantic Singapore 58TP Pte. Ltd.
Mr. Nanyan Zheng
Mr. Tianyi Jiang
Ocean Link Partners II GP Limited
Ocean Link Partners II GP, L.P.
Ocean Link Partners II, L.P.
Ocean Alliance III Company Limited
Ocean Alliance III, L.P.
Ocean Magical Site Limited
Mr. Jinbo Yao
Nihao China Corporation
Internet Opportunity Fund LP
Tencent Holdings Limited
Ohio River Investment Limited
THL E Limited
Huang River Investment Limited

(Names of Persons Filing Statement)

 

Class A Ordinary Shares, par value US$0.00001 per share*

American Depositary Shares, each representing two Class A Ordinary Shares

(Title of Class of Securities)

 

31680Q104**

31680Q906***

(CUSIP Number)

 

58.com Inc.
Building 105, 10 Jiuxianqiao North Road Jia,
Chaoyang District, Beijing 100015, People’s Republic of
China
Tel: +86 10 5956-5858
  Quantum Bloom Group Ltd
Quantum Bloom Company Ltd
Building 105, 10 Jiuxianqiao North Road Jia,
Chaoyang District, Beijing 100015, People’s Republic of
China
Tel: +86 10 5956-5858

 

Warburg Pincus China-Southeast
Asia II (Cayman), L.P.
Warburg Pincus China-Southeast
Asia II-E (Cayman), L.P.
WP China-Southeast Asia II Partners
(Cayman), L.P.
Warburg Pincus China-Southeast
Asia II Partners, L.P.
Warburg Pincus (Callisto) Global
Growth (Cayman), L.P.
Warburg Pincus (Europa) Global
Growth (Cayman), L.P.
Warburg Pincus Global Growth-B
(Cayman), L.P.
Warburg Pincus Global Growth-E
(Cayman), L.P.
WP Global Growth Partners
(Cayman), L.P.
Warburg Pincus Global Growth
Partners (Cayman), L.P.
Polarite Gem Holdings Group Ltd

c/o Warburg Pincus LLC,

450 Lexington Ave, New York,

NY 10017 

c/o Warburg Pincus Asia LLC,
Suite 6703, Two International
Finance Center, Central, Hong Kong
People’s Republic of China
Tel: +1 (212) 878-0600

General Atlantic Singapore
Fund Pte. Ltd.
General Atlantic Singapore
58 Pte. Ltd.
General Atlantic Singapore
58TP Pte. Ltd.
8 Marina View, #41-04,
Asia Square Tower 1,
Singapore 018960
Tel: +65 6661-6700
General Atlantic Partners
(Bermuda) IV, L.P.
General Atlantic Partners
(Bermuda) III, L.P.

GAP Coinvestments CDA, L.P.
GAP Coinvestments V, LLC
GAP Coinvestments IV, LLC
GAP Coinvestments III, LLC
General Atlantic LLC
GAP (Bermuda) Limited
General Atlantic GenPar
(Bermuda), L.P.
General Atlantic Singapore
Interholdco Ltd.
c/o General Atlantic Service
Company, L.P.,
55 East 52nd Street, 33rd Floor,
New York, NY 10055
Tel: +1 (212) 715-4000

 

Nanyan Zheng
Tianyi Jiang
Ocean Link Partners II GP Limited
Ocean Link Partners II GP, L.P.
Ocean Link Partners II, L.P.
Ocean Alliance III Company Limited
Ocean Alliance III, L.P.
Ocean Magical Site Limited

Room 1220, Unit 02A, 12/F,
International Commerce Centre,
1 Austin Road, West Kowloon, Hong Kong,
People’s Republic of China
Tel: +852 3669 8586
Jinbo Yao
Nihao China Corporation
Building 105, 10 Jiuxianqiao
North Road Jia, Chaoyang District,
Beijing, People’s Republic of China
Tel: +86 10 5956-5858
Tencent Holdings Limited
Ohio River Investment Limited
THL E Limited
Huang River Investment Limited
c/o 29/F, Three Pacific Place,
No. 1 Queen’s Road East,
Wanchai, Hong Kong,
People’s Republic of China
Tel: +852 3148 5100

 

Internet Opportunity Fund LP
PO Box 309,
Ugland House, Grand Cayman,
KY 1-1104, Cayman Islands
Tel: +86 10 5956-5858  

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

 

* Not for trading, but only in connection with the listing on the New York Stock Exchange of the American depositary shares
** This CUSIP applies to the American depositary shares, each representing two Class A ordinary shares
*** This CUSIP applies to the Restricted American depositary shares, each representing two Class A ordinary shares

 

With copies to:

 

Z. Julie Gao, Esq.
Skadden, Arps, Slate, Meagher
& Flom LLP
42/F, Edinburgh Tower,
The Landmark
15 Queen’s Road Central, Hong Kong,
People’s Republic of China
Tel: +852 3740-4700  
Peter X. Huang, Esq.
Skadden, Arps, Slate, Meagher &
Flom LLP
30/F, China World Office 2 No. 1,
Jianguomenwai Avenue
Chaoyang District,
Beijing 100004
People’s Republic of China
Tel: +86 10 6535-5577  
Gordon K. Davidson, Esq.
David K. Michaels, Esq.
Ken S. Myers, Esq.
Fenwick & West LLP
801 California Street
Mountain View, California 94041
United States of America
Tel: +1-650-988-8500  
Weiheng Chen, Esq.
Jie Zhu, Esq.
Wilson Sonsini Goodrich & Rosati
Suite 1509, 15/F Jardine House
1 Connaught Place Central
Hong Kong,
People’s Republic of China
Tel: +852 3972 4955  
       
Matthew W. Abbott, Esq.
Neil Goldman, Esq.
Judie Ng Shortell, Esq.

Paul, Weiss, Rifkind, Wharton
& Garrison LLP
1285 Avenue of the Americas,
New York, NY 10019
Tel: +1 212 373 3000  
Daniel Dusek, Esq.
Xiaoxi Lin, Esq.

Kirkland & Ellis

26th Floor, Gloucester Tower,
The Landmark
15 Queen’s Road Central
Hong Kong,
People’s Republic of China
Tel: +852 3761 3300
Tim Gardner, Esq.
William Welty, Esq.
Weil, Gotshal & Manges LLP
29/F, Alexandra House
18 Chater Road, Central
Hong Kong,
People’s Republic of China
Tel: +852 3476 9000  
Miranda So, Esq.
Davis Polk & Wardwell LLP
18th Floor, The Hong Kong
Club Building
3A Chater Road
Hong Kong,
People’s Republic of China
Tel: +852 2533 3373

 

     

 

This statement is filed in connection with (check the appropriate box):

 

¨   The filing of solicitation materials or an information statement subject to Regulation 14A, Regulation 14-C or Rule 13e-3(c) under the Securities Exchange Act of 1934.
     
¨   The filing of a registration statement under the Securities Act of 1933.
     
¨   A tender offer
     
x   None of the above

 

Check the following box if the soliciting materials or information statement referred to in checking box (a) are preliminary copies: ¨

 

Check the following box if the filing is a final amendment reporting the results of the transaction: ¨

 

Calculation of Filing Fee

 

Transaction Valuation***   Amount of Filing Fee****
US$5,850,013,059.80   US$759,331.70

 

*** Calculated solely for the purpose of determining the filing fee in accordance with Rule 0-11(b)(1) under the Securities Exchange Act of 1934, as amended. The filing fee is calculated based on the sum of (a) the aggregate cash payment of US$28.00 per share for the 203,159,849 issued and outstanding ordinary shares of the issuer (including shares represented by American Depositary Shares) subject to the transaction plus (b) the product of 2,376,780 ordinary shares issuable under all outstanding and unexercised options that shall have become vested or are expected to vest on or prior to December 31, 2020 multiplied by US$18.41 per share (which is the difference between the US$28.00 per share merger consideration and the weighted average exercise price of US$9.59 per share) plus (c) the product of 4,206,456 outstanding restricted stock units that shall have become vested or are expected to vest on or prior to December 31, 2020 subject to the transaction multiplied by US$28.00 per unit ((a), (b), and (c) together, the “Transaction Valuation”).

 

**** The amount of the filing fee, calculated in accordance with Exchange Act Rule 0-11(b)(1) and the Securities and Exchange Commission Fee Rate Advisory #1 for Fiscal Year 2020, was calculated by multiplying the Transaction Valuation by 0.0001298.

 

¨ Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting of the fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.

 

Amount Previously Paid:   N/A   Filing Party:  N/A
   
Form or Registration No.:  N/A   Date Filed:    N/A

 

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of this transaction, passed upon the merits or fairness of this transaction, or passed upon the adequacy or accuracy of the disclosure in this transaction statement on schedule 13e-3. Any representation to the contrary is a criminal offense.

 

 

 

 

 

Table of Contents

 

Item 3 Identity and Background of Filing Persons 2
     
Item 10 Source and Amount of Funds or Other Consideration 2
     
Item 15 Additional Information 2
     
Item 16 Exhibits 3

 

 

 

 

INTRODUCTION

 

This amendment No. 4 to Rule 13e-3 transaction statement on Schedule 13E-3 (“this Amendment“), together with the exhibits hereto and as amended (this “Transaction Statement”), is being filed with the United States Securities and Exchange Commission (the “SEC”) pursuant to Section 13(e) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), jointly by the following persons (each, a “Filing Person,” and collectively, the “Filing Persons”): (a) 58.com Inc., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the “Company”), the issuer of the Class A ordinary shares, par value US$0.00001 per share (each, a “Class A Share” and collectively, the “Class A Shares,” and, together with the Class B ordinary shares of the Company, par value US$0.00001 per share (each, a “Class B Share” and collectively, the “Class B Shares”), the “Shares”), including the Class A Shares represented by the American depositary shares, each representing two Class A Shares (the “ADSs”), that is subject to the transaction pursuant to Rule 13e-3 under the Exchange Act; (b) Quantum Bloom Group Ltd, an exempted company with limited liability incorporated under the laws of the Cayman Islands (“Parent”); (c) Quantum Bloom Company Ltd, an exempted company with limited liability incorporated under the laws of the Cayman Islands and a wholly-owned subsidiary of Parent (“Merger Sub”); (d)Warburg Pincus China-Southeast Asia II (Cayman), L.P., Warburg Pincus China-Southeast Asia II-E (Cayman), L.P., WP China-Southeast Asia II Partners (Cayman), L.P., Warburg Pincus China-Southeast Asia II Partners, L.P., Warburg Pincus (Callisto) Global Growth (Cayman), L.P., Warburg Pincus (Europa) Global Growth (Cayman), L.P., Warburg Pincus Global Growth-B (Cayman), L.P., Warburg Pincus Global Growth-E (Cayman), L.P., WP Global Growth Partners (Cayman), L.P. and Warburg Pincus Global Growth Partners (Cayman), L.P., each an exempted limited partnership formed under the laws of the Cayman Islands (collectively, the “Warburg Entities”); (e) Polarite Gem Holdings Group Ltd, an exempted company with limited liability incorporated and existing under the laws of the Cayman Islands (“WP SPV,” and, together with the Warburg Entities, collectively “Warburg Pincus”); (f) General Atlantic Partners (Bermuda) IV, L.P., a Bermuda exempted limited partnership and General Atlantic Partners (Bermuda) III, L.P. (collectively, the “GA Bermuda Funds”); (g) GAP Coinvestments CDA, L.P., a Delaware limited partnership (“GA CDA”), GAP Coinvestments V, LLC, a Delaware limited liability company (“GAPCO V”), GAP Coinvestments IV, LLC, a Delaware limited liability company (“GAPCO IV”), and GAP Coinvestments III, LLC, a Delaware limited liability company (“GAPCO III,” and, together with GA CDA, GAPCO V and GAPCO IV, collectively, the “GA Delaware Funds”); (h) General Atlantic GenPar (Bermuda), L.P., a Bermuda exempted limited partnership (“GA GenPar Bermuda”); (i) General Atlantic LLC, a Delaware limited liability company (“GA LLC”); (j) GAP (Bermuda) Limited, a Bermuda exempted company (“GA Bermuda”); (k) General Atlantic Singapore Interholdco Ltd., a Bermuda exempted company (“GA Interholdco”); (l) General Atlantic Singapore Fund Pte. Ltd., a company incorporated and existing under the laws of Singapore (“GA Fund”); (m) General Atlantic Singapore 58 Pte. Ltd., a company incorporated and existing under the laws of Singapore (“GA SPV I”), (n) General Atlantic Singapore 58TP Pte. Ltd., a company incorporated and existing under the laws of Singapore (“GA SPV II,” and, together with the GA Bermuda Funds, the GA Delaware Funds, GA GenPar Bermuda, GA LLC, GA Bermuda, GA Interholdco, GA Fund and GA SPV I, collectively, “General Atlantic” or the “General Atlantic Filing Persons”); (o) Mr. Nanyan Zheng, a citizen of the People’s Republic of China (“Mr. Zheng”); (p) Mr. Tianyi Jiang, a Hong Kong permanent resident (“Mr. Jiang”); (q) Ocean Link Partners II GP Limited, an exempted company with limited liability incorporated and existing under the laws of the Cayman Islands (“Ocean Link GP”); (r) Ocean Link Partners II GP, L.P., an exempted limited partnership formed under the laws of the Cayman Islands (“Ocean Link Partners”); (s) Ocean Link Partners II, L.P., an exempted limited partnership formed under the laws of the Cayman Islands (“Ocean Link Fund II”); (t) Ocean Alliance III Company Limited, an exempted company with limited liability incorporated and existing under the laws of the Cayman Islands (“Ocean Alliance GP”), (u) Ocean Alliance III, L.P., an exempted limited partnership formed under the laws of the Cayman Islands (“Ocean Alliance Fund”), (v) Ocean Magical Site Limited, an exempted company with limited liability incorporated and existing under the laws of the Cayman Islands (“Ocean Link SPV,” and, together with Mr. Zheng, Mr. Jiang, Ocean Link GP, Ocean Link Partners, Ocean Link Fund II, Ocean Alliance GP and Ocean Alliance Fund, collectively, “Ocean Link”); (w) Mr. Jinbo Yao, chairman of the board of directors, chief executive officer and founder of the Company (“Mr. Yao”); (x) Nihao China Corporation, a company incorporated under the Laws of the British Virgin Islands (“Nihao”); (y) Internet Opportunity Fund LP, an exempted limited partnership formed under the laws of the Cayman Islands (“Internet Opportunity Fund”); (z) Tencent Holdings Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands (“Tencent Holdings”); (aa) Ohio River Investment Limited, a British Virgin Islands company and a wholly owned subsidiary of Tencent Holdings (“Ohio River”); (bb) THL E Limited, a British Virgin Islands company and a wholly owned subsidiary of Tencent Holdings (“THL E”); and (cc) Huang River Investment Limited, a British Virgin Islands company and a wholly owned subsidiary of Tencent Holdings (“Huang River,” and, together with Ohio River and THL E, collectively the “Other Rollover Shareholders”; and, together with Tencent Holdings collectively, the “Other Rollover Entities”). Mr. Yao, Nihao and GA SPV I are collectively referred to as the “Supporting Shareholders.” Mr. Yao, Nihao and the Other Rollover Shareholders are collectively referred to as the “Rollover Shareholders.” Filing Persons (b) through (y) are collectively referred to herein as the “Buyer Group.” Filings persons (b) through (cc) are collectively referred to herein as the “Participants.”

 

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All capitalized terms used in this Amendment and not otherwise defined have the meanings ascribed to such terms in the Transaction Statement, including the Proxy Statement attached as exhibit (a)-(1) to the Transaction Statement.

 

Item 3 Identity and Background of Filing Persons

 

Item 3 is hereby amended and supplemented to include Ocean Alliance GP and Ocean Alliance Fund as additional Ocean Link Filing Persons to this Amendment.

 

Ocean Alliance GP is an exempted company with limited liability incorporated and existing under the laws of the Cayman Islands. Ocean Alliance Fund is an exempted limited partnership formed under the laws of the Cayman Islands. Each of Mr. Zheng and Mr. Jiang beneficially owns 50% of the equity interest in Ocean Alliance GP. Ocean Alliance GP is the general partner of Ocean Alliance Fund. Ocean Alliance Fund, together with Ocean Link Fund II, owns 100% of the equity interest in Ocean Link SPV. The principal business of each of Ocean Alliance GP and Ocean Alliance Fund is investment activities.

 

The principal business address and telephone number of each of Ocean Alliance GP and Ocean Alliance Fund is Room 1220, Unit 02A, 12/F, International Commerce Centre, 1 Austin Road, West Kowloon, Hong Kong, +852 3669 8586.

 

Mr. Zheng and Mr. Jiang serve as directors of Ocean Alliance GP. As of the date of this Amendment, Ocean Alliance GP does not have any executive officers, and Ocean Alliance Fund does not have any executive officers or directors.

 

During the past five years, neither Ocean Alliance GP or Ocean Alliance Fund has been (a) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) a party to any judicial or administrative proceeding (except for matters that were dismissed without sanction or settlement) that resulted in a judgment, decree or final order enjoining the person from future violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any violation of federal or state securities laws.

 

  Item 10 Source and Amount of Funds or Other Consideration

 

Item 10 is hereby amended and supplemented as follows:

 

Debt Financing

 

On September 2, 2020, as contemplated by the Debt Commitment Letter, Parent, Merger Sub, SPDB (as Sole Original Mandated Lead Arranger, Agent and Security Agent), China Merchants Bank Co., Ltd. Shanghai Branch (as Joint Mandated Lead Arranger), Industrial Bank Co., Ltd. Shanghai Branch (as Arranger) and Ping An Bank Co., Ltd., Shanghai Branch (as Arranger) entered into a facilities agreement (the “Facilities Agreement”). The Facilities Agreement provides for (i) a term loan facility of $2.00 billion, (ii) a $500.00 million offshore cash bridge facility and (iii) a $1.00 billion (or its equivalent in RMB) offshore cash bridge facility that, subject to the conditions set forth in the Facilities Agreement, will be used for the purpose of financing a portion of the consideration for the Merger and fees and expenses incurred in connection with the Merger. Reference is hereby made to such Facilities Agreement, which is attached hereto as Exhibit (b)-(6) and incorporated herein by reference.

 

On September 8, 2020, Nihao, its subsidiary Nihao Haven Corporation (“Nihao Haven”) and SPDB (as Mandated Lead Arranger, Lender, Agent and Security Agent) entered into a facility agreement (the “Nihao Facility Agreement”) pursuant to which SPDB will arrange a term loan facility of up to $300.00 million to Nihao which, subject to the conditions set forth therein, will be used for the purpose of funding a portion of the equity contribution to Parent contemplated by Internet Opportunity Fund’s Equity Commitment Letter. Reference is hereby made to such Nihao Facility Agreement, which is attached hereto as Exhibit (b)-(7) and incorporated herein by reference.

 

Terms of the Term Loan Facility in the Nihao Facility Agreement (the “Nihao Facility”)

 

· Interest Rate. The Nihao Facility will bear interest at a rate equal to LIBOR (London interbank offer rate) plus 4.20% per annum.

 

· Maturity. The Nihao Facility will mature seven years after the initial utilisation date.

 

· Amortization. The loan under the Nihao Facility will be repaid in semi-annual instalments starting from 30 months following the closing of the Merger.

 

· Conditions Precedent. The availability of the Nihao Facility is subject to, among other things, (a) each of the conditions set forth in the share subscription agreement entered into between Nihao Haven and Parent in connection with the closing of the Merger (the “Nihao Share Subscription Agreement”) having been or will be satisfied (or waived, where such waiver is not materially adverse to the interests of the finance parties under the Nihao Facility Agreement (taken as a whole, acting reasonably)) prior to or on the closing date of the Merger (other than payment of the subscription price under the Nihao Share Subscription Agreement or any other matter or condition which by their terms cannot be satisfied until the consummation of the Merger or following the Merger or to the extent it is not reasonably likely to materially and adversely affect the interests of the lenders or with the consent of the facility agent (acting on the instruction of the majority lenders, such consent not to be unreasonably withheld or delayed), (b) delivery of the agreed form shareholders’ agreement to be entered into by Parent and its shareholders in connection with the closing of the Merger setting forth certain provisions contemplated by the Nihao Facility Agreement with respect to (i) the granting and enforcement of security over shares of Parent in connection with the Nihao Facility, (ii) Mr. Yao’s voting and ownership interests in Parent, and (iii) the issuance to Nihao Haven of any shares in Parent upon the exercise of awards granted to Mr. Yao under any share incentive plan, in each case, following the closing of the Merger, (c) the execution of the ancillary documents required under the Nihao Facility Agreement, and (d) certain other customary conditions set forth in the Nihao Facility Agreement.

 

· Security. The Nihao Facility will be secured, subject to agreed exceptions, by: (i) security over all intercompany loans made to Nihao Haven by Nihao, (ii) security over certain bank account of Nihao, (iii) security over all the shares in Parent held by Nihao Haven as at Closing, (iv) security over all the shares in Nihao Haven held by Nihao, (v) security over certain assets of Nihao Haven, and (vi) security over certain bank account of Nihao Haven. The delivery of security set out in clauses (i) to (vi) above is each a condition precedent to the availability of the Nihao Facility.

 

Item 15 Additional Information

 

Item 15(c) is hereby amended and supplemented as follows:

 

On September 7, 2020, at 10:30 am (Beijing time), an extraordinary general meeting of the shareholders of the Company was held at Building 105, 10 Jiuxianqiao North Road Jia, Chaoyang District, Beijing, China. At the extraordinary general meeting, the shareholders of the Company authorized and approved execution, delivery and performance of the Merger Agreement, and the Plan of Merger and the consummation of the transactions contemplated thereby, including the Merger, and authorized each of the directors and officers of the Company to do all things necessary to give effect to the Merger Agreement, the Plan of Merger and the consummation of the transactions contemplated thereby, including the Merger.

 

  2  

 

 

Item 16 Exhibits

 

(a)-(1) Proxy Statement of the Company dated August 7, 2020.*

 

(a)-(2) Notice of Extraordinary General Meeting of Shareholders of the Company, incorporated herein by reference to the Proxy Statement.*

 

(a)-(3) Form of Proxy Card, incorporated herein by reference to Annex F to the Proxy Statement.*

 

(a)-(4) Form of Depositary Notice and Form of ADS Voting Instruction Card, each incorporated herein by reference to Annex G to the Proxy Statement.*

 

(a)-(5) Press Release issued by the Company, dated June 15, 2020, incorporated herein by reference to Exhibit 99.1 to the Current Report on Form 6-K furnished by the Company to the SEC on June 16, 2020.*

 

(a)-(6) Annual Report on Form 20-F for the year ended December 31, 2019 of the Company filed with the SEC on April 29, 2020.*

 

(a)-(7) Amendment No. 1 to the Annual Report on Form 20-F for the year ended December 31, 2019 of the Company filed with the SEC on June 29, 2020.*

 

  (a)-(8) Press Release issued by the Company, dated September 7, 2020, incorporated herein by reference to Exhibit 99.1 to the Current Report on Form 6-K furnished by the Company to the SEC on September 8, 2020.

 

(b)-(1) Equity Commitment Letter, dated June 15, 2020, by and between Parent and the Warburg Entities.*

 

(b)-(2) Equity Commitment Letter, dated June 15, 2020, by and between Parent and GA Fund, incorporated herein by reference to Exhibit 99.6 to the Schedule 13D/A filed with the SEC by General Atlantic on June 17, 2020.*

 

(b)-(3) Equity Commitment Letter, dated June 15, 2020, by and between Parent and Ocean Link Fund II.*

 

(b)-(4) Equity Commitment Letter, dated June 15, 2020, by and between Parent and Internet Opportunity Fund, incorporated herein by reference to Exhibit 7.07 to the Schedule 13D/A filed with the SEC by Mr. Yao, Nihao, Internet Opportunity Fund and the other reporting persons named therein on June 17, 2020.*

 

(b)-(5) Debt Commitment Letter, dated June 5, 2020, by and between Merger Sub and Shanghai Pudong Development Bank Co., Ltd. Shanghai Branch incorporated herein by reference to Exhibit 7.06 to the Schedule 13D/A filed with the SEC by Mr. Yao, Nihao, Internet Opportunity Fund and the other reporting persons named therein on June 17, 2020.*

 

  (b)-(6) Facilities Agreement, dated September 2, 2020, between Parent, Merger Sub, Shanghai Pudong Development Bank Co., Ltd. Shanghai Branch (as Sole Original Mandated Lead Arranger, Agent and Security Agent), China Merchants Bank Co., Ltd. Shanghai Branch (as Joint Mandated Lead Arranger), Industrial Bank Co., Ltd. Shanghai Branch (as Arranger) and Ping An Bank Co., Ltd., Shanghai Branch (as Arranger).
     
  (b)-(7) Facility Agreement, dated September 8, 2020, between Nihao, Nihao Haven Corporation and Shanghai Pudong Development Bank Co., Ltd. Shanghai Branch (as Mandated Lead Arranger, Lender, Agent and Security Agent).

 

(c)-(1) Opinion of Houlihan Lokey, dated June 15, 2020, incorporated herein by reference to Annex B to the Proxy Statement.*

 

(c)-(2) Discussion Materials prepared by Houlihan Lokey for discussion with the special committee of the board of directors of the Company, dated June 12, 2020.*

 

(c)-(3) Discussion Materials prepared by Houlihan Lokey for discussion with the special committee of the board of directors of the Company, dated June 15, 2020.*

 

(d)-(1) Agreement and Plan of Merger, dated June 15, 2020, among the Company, Parent and Merger Sub, incorporated herein by reference to Annex A-1 to the Proxy Statement.*

 

(d)-(2) Support Agreement, dated June 15, 2020, by and among Parent and the Supporting Shareholders, incorporated herein by reference to Annex D to the Proxy Statement.*

 

(d)-(3) Limited Guarantee, dated June 15, 2020, by the Warburg Entities in favor of the Company.*

 

(d)-(4) Limited Guarantee, dated June 15, 2020, by GA Fund in favor of the Company, incorporated herein by reference to Exhibit 99.9 to the Schedule 13D/A filed with the SEC by General Atlantic on June 17, 2020.*

 

(d)-(5) Limited Guarantee, dated June 15, 2020, by Ocean Link Fund II in favor of the Company.*

 

  3  

 

 

(d)-(6) Limited Guarantee, dated June 15, 2020, by Internet Opportunity Fund in favor of the Company, incorporated herein by reference to Exhibit 7.10 to the Schedule 13D/A filed with the SEC by Mr. Yao, Nihao, Internet Opportunity Fund and the other reporting persons named therein on June 17, 2020.*

 

(d)-(7) Interim Investors Agreement, dated June 15, 2020, by and among Parent, Merger Sub, Mr. Yao, Internet Opportunity Fund, WP SPV, GA SPV II and Ocean Link SPV, incorporated herein by reference to Exhibit 7.09 to the Schedule 13D/A filed with the SEC by Mr. Yao, Nihao, Internet Opportunity Fund and the other reporting persons named therein on June 17, 2020.*

 

(d)-(8) Rollover Agreement, dated June 15, 2020, by and among Parent and the Other Rollover Shareholders, incorporated herein by reference to Exhibit 2 to the Schedule 13D/A filed with the SEC by Tencent Holdings and the other reporting persons named therein on June 17, 2020.*

 

  (d)-(9) Plan of Merger to be executed by and between the Company and Merger Sub, incorporated herein by reference to Annex A-2 to the Proxy Statement.*

 

(f)-(1) Dissenters’ Rights, incorporated herein by reference to the section entitled “Dissenters’ Rights” in the Proxy Statement.*

 

(f)-(2) Section 238 of the Companies Law Cap. 22 (Law 3 of 1961, as consolidated and revised) of the Cayman Islands, incorporated herein by reference to Annex C to the Proxy Statement.*

 

(g) Not applicable.

 

* Previously filed.

  4  

 

 

 

SIGNATURES

 

After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

Date: September 8, 2020

 

  58.com Inc.
  By: /s/ Robert Frank (Bob) Dodds, Jr.
    Name:  Robert Frank (Bob) Dodds, Jr.
    Title:  Member of the Special Committee

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

  Quantum Bloom Group Ltd
  By: /s/ Cheung Lun Julian CHENG
    Name: Cheung Lun Julian CHENG
    Title: Director

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

  Quantum Bloom Company Ltd
  By: /s/ Cheung Lun Julian CHENG
    Name: Cheung Lun Julian CHENG
    Title: Director

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

  Polarite Gem Holdings Group Ltd
   
  By: /s/ Steven G. Glenn
    Name:   Steven G. Glenn
    Title:     Director

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

 

Warburg Pincus China-Southeast Asia II (Cayman), L.P.
     
  By: Warburg Pincus (Cayman) China-Southeast Asia II GP, L.P., its general partner
     
  By: Warburg Pincus (Cayman) China-Southeast Asia II GP LLC, its general partner
     
  By: Warburg Pincus Partners II (Cayman), L.P., its managing member
     
  By: Warburg Pincus (Bermuda) Private Equity GP Ltd., its general partner
     
   
  By: /s/ Steven G. Glenn
    Name:     Steven G. Glenn
    Title:       Authorised Signatory

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

 

WARBURG PINCUS CHINA-SOUTHEAST ASIA II-E (CAYMAN), L.P.
     
  By: Warburg Pincus (Cayman) China-Southeast Asia II GP, L.P., its general partner
     
  By: Warburg Pincus (Cayman) China-Southeast Asia II GP LLC, its general partner
     
  By: Warburg Pincus Partners II (Cayman), L.P., its managing member
     
  By: Warburg Pincus (Bermuda) Private Equity GP Ltd., its general partner
     
   
  By: /s/ Steven G. Glenn
    Name:     Steven G. Glenn
    Title:       Authorised Signatory

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

 

WP CHINA-SOUTHEAST ASIA II PARTNERS (CAYMAN), L.P.
     
  By: Warburg Pincus (Cayman) China-Southeast Asia II GP, L.P., its general partner
     
  By: Warburg Pincus (Cayman) China-Southeast Asia II GP LLC, its general partner
     
  By: Warburg Pincus Partners II (Cayman), L.P., its managing member
     
  By: Warburg Pincus (Bermuda) Private Equity GP Ltd., its general partner
     
   
  By: /s/ Steven G. Glenn
    Name:     Steven G. Glenn
    Title:       Authorised Signatory

  

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

 

WARBURG PINCUS CHINA-SOUTHEAST ASIA II PARTNERS, L.P.
     
  By: Warburg Pincus (Cayman) China-Southeast Asia II GP, L.P., its general partner
     
  By: Warburg Pincus (Cayman) China-Southeast Asia II GP LLC, its general partner
     
  By: Warburg Pincus Partners II (Cayman), L.P., its managing member
     
  By: Warburg Pincus (Bermuda) Private Equity GP Ltd., its general partner
     
   
  By: /s/ Steven G. Glenn
    Name:     Steven G. Glenn
    Title:       Authorised Signatory

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

 

WARBURG PINCUS (CALLISTO) GLOBAL GROWTH (CAYMAN), L.P.
     
  By:

Warburg Pincus (Cayman) Global Growth GP, L.P., its general partner

     
  By:

Warburg Pincus (Cayman) Global Growth GP LLC, its general partner

     
  By:

Warburg Pincus Partners II (Cayman), L.P., its managing member

     
  By:

Warburg Pincus (Bermuda) Private Equity GP Ltd., its general partner

     
   
  By: /s/ Steven G. Glenn
    Name:     Steven G. Glenn
    Title:       Authorised Signatory

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

 

WARBURG PINCUS (EUROPA) GLOBAL GROWTH (CAYMAN), L.P.
     
  By:

Warburg Pincus (Cayman) Global Growth GP, L.P., its general partner

     
  By:

Warburg Pincus (Cayman) Global Growth GP LLC, its general partner

     
  By: Warburg Pincus Partners II (Cayman), L.P., its managing member
     
  By: Warburg Pincus (Bermuda) Private Equity GP Ltd., its general partner
     
   
  By: /s/ Steven G. Glenn
    Name:     Steven G. Glenn
    Title:       Authorised Signatory

  

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

 

WARBURG PINCUS GLOBAL GROWTH-B (CAYMAN), L.P.
     
  By: Warburg Pincus (Cayman) Global Growth GP, L.P., its general partner
     
  By: Warburg Pincus (Cayman) Global Growth GP LLC, its general partner
     
  By: Warburg Pincus Partners II (Cayman), L.P., its managing member
     
  By: Warburg Pincus (Bermuda) Private Equity GP Ltd., its general partner
     
   
  By: /s/ Steven G. Glenn
    Name:     Steven G. Glenn
    Title:       Authorised Signatory

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

 

WARBURG PINCUS GLOBAL GROWTH-E (CAYMAN), L.P.
     
  By:

Warburg Pincus (Cayman) Global Growth GP, L.P., its general partner

     
  By:

Warburg Pincus (Cayman) Global Growth GP LLC, its general partner

     
  By: Warburg Pincus Partners II (Cayman), L.P., its managing member
     
  By: Warburg Pincus (Bermuda) Private Equity GP Ltd., its general partner
     
   
  By: /s/ Steven G. Glenn
    Name:     Steven G. Glenn
    Title:       Authorised Signatory

  

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

 

WARBURG PINCUS GLOBAL GROWTH PARTNERS (CAYMAN), L.P.
     
  By: Warburg Pincus (Cayman) Global Growth GP, L.P., its general partner
     
  By: Warburg Pincus (Cayman) Global Growth GP LLC, its general partner
     
  By: Warburg Pincus Partners II (Cayman), L.P., its managing member
     
  By: Warburg Pincus (Bermuda) Private Equity GP Ltd., its general partner
     
   
  By: /s/ Steven G. Glenn
    Name:     Steven G. Glenn
    Title:       Authorised Signatory

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

 

WP GLOBAL GROWTH PARTNERS (CAYMAN), L.P.
     
  By: Warburg Pincus (Cayman) Global Growth GP, L.P., its general partner
     
  By: Warburg Pincus (Cayman) Global Growth GP LLC, its general partner
     
  By: Warburg Pincus Partners II (Cayman), L.P., its managing member
     
  By: Warburg Pincus (Bermuda) Private Equity GP Ltd., its general partner
     
   
  By: /s/ Steven G. Glenn
    Name:     Steven G. Glenn
    Title:       Authorised Signatory

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

  GAP Coinvestments CDA, L.P.  
   
  By: General Atlantic LLC, its General Partner
       
  By: /s/ J. Frank Brown
    Name: J. Frank Brown
    Title: Managing Director

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

  GAP Coinvestments V, LLC  
   
  By: General Atlantic LLC, its Managing Member
       
  By: /s/ J. Frank Brown
    Name: J. Frank Brown
    Title: Managing Director

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

  GAP Coinvestments IV, LLC  
   
  By: General Atlantic LLC, its Managing Member
       
  By: /s/ J. Frank Brown
    Name: J. Frank Brown
    Title: Managing Director

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

  GAP Coinvestments III, LLC  
   
  By: General Atlantic LLC, its Managing Member
       
  By: /s/ J. Frank Brown
    Name: J. Frank Brown
    Title: Managing Director

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

  General Atlantic LLC
     
  By: /s/ J. Frank Brown
    Name: J. Frank Brown
    Title: Managing Director

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

  GAP (Bermuda) Limited
     
  By: /s/ J. Frank Brown
    Name: J. Frank Brown
    Title: Managing Director

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

 

  General Atlantic GenPar (Bermuda), L.P.
   
  By: GAP (Bermuda) Limited, its General Partner
   
  By: /s/ J. Frank Brown
    Name: J. Frank Brown
    Title: Managing Director

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

 

  General Atlantic Partners (Bermuda) IV, L.P.
   
  By: General Atlantic GenPar (Bermuda), L.P., its General Partner
  By: GAP (Bermuda) Limited, its General Partner
   
  By: /s/ J. Frank Brown
    Name: J. Frank Brown
    Title: Managing Director

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

  General Atlantic Partners (Bermuda) III, L.P.
   
  By: General Atlantic GenPar (Bermuda), L.P., its General Partner
  By: GAP (Bermuda) Limited, its General Partner
   
  By: /s/ J. Frank Brown
    Name: J. Frank Brown
    Title: Managing Director

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

  General Atlantic Singapore Interholdco Ltd.
   
  By: /s/ J. Frank Brown
    Name: J. Frank Brown
    Title: Director

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

  General Atlantic Singapore Fund Pte. Ltd.
   
  By: /s/ Ong Yu Huat 
    Name:  Ong Yu Huat
    Title:  Director

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

  General Atlantic Singapore 58 Pte. Ltd.
   
  By: /s/ Ong Yu Huat
    Name:  Ong Yu Huat
    Title:  Director

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

  General Atlantic Singapore 58TP Pte. Ltd.
   
  By: /s/ Ong Yu Huat
    Name:  Ong Yu Huat
    Title:  Director

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

  

  Nanyan Zheng
  /s/ Nanyan Zheng

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

  Tianyi Jiang
  /s/ Tianyi Jiang

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

  Ocean Link Partners II GP Limited
   
  By: /s/ Tianyi Jiang
    Name: Tianyi Jiang
    Title: Director

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

  Ocean Link Partners II GP, L.P.
  By: Ocean Link Partners II GP Limited, its general partner
   
  By: /s/ Tianyi Jiang 
    Name: Tianyi Jiang
    Title: Director

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

  Ocean Link Partners II, L.P.
  By: Ocean Link Partners II GP, L.P., its general partner
  By: Ocean Link Partners II GP Limited, its general partner
   
  By: /s/ Tianyi Jiang 
    Name: Tianyi Jiang
    Title: Director

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

  Ocean Alliance III Company Limited
   
  By: /s/ Tianyi Jiang
    Name: Tianyi Jiang
    Title: Director

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

 

Ocean Alliance III, L.P.

By: Ocean Alliance III Company Limited, its general partner

   
  By: /s/ Tianyi Jiang
    Name: Tianyi Jiang
    Title: Director

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

  Ocean Magical Site Limited
   
  By: /s/ Tianyi Jiang 
    Name: Tianyi Jiang
    Title: Director

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

  Jinbo Yao
  /s/ Jinbo Yao

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

  Internet Opportunity Fund LP
  By:

Internet Opportunity Company,

its general partner  

   
  By: /s/ Jinbo Yao
    Name: Jinbo Yao
    Title: Director

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

  Nihao China Corporation
   
  By: /s/ Jinbo Yao
    Name: Jinbo Yao
    Title: Director  

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

  Tencent Holdings Limited
   
  By: /s/ Huateng Ma 
    Name: Huateng Ma
    Title: Director

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

  Ohio River Investment Limited
   
  By: /s/ Huateng Ma
    Name: Huateng Ma
    Title: Director

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

  THL E Limited
   
  By: /s/ Huateng Ma 
    Name:  Huateng Ma
    Title: Director

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

 

  Huang River Investment Limited
   
  By: /s/ Huateng Ma 
    Name:  Huateng Ma
    Title: Director

 

[Signature Page to Schedule 13E-3/A and Proxy Statement]

 

 

 

Exhibit (b)-(6)

 

PRIVATE AND CONFIDENTIAL

EXECUTION VERSION

 

FACILITIES AGREEMENT

 

2 September 2020

 

for 

 

QUANTUM BLOOM COMPANY LTD

as Company

 

arranged by

 

SHANGHAI PUDONG DEVELOPMENT BANK CO., LTD. SHANGHAI BRANCH

(上海浦东发展银行股份有限公司上海分行),

CHINA MERCHANTS BANK CO., LTD. SHANGHAI BRANCH

(招商银行股份有限公司上海分行),

INDUSTRIAL BANK CO., LTD. SHANGHAI BRANCH

(兴业银行股份有限公司上海分行)

 

and

 

PING AN BANK CO., LTD., SHANGHAI BRANCH

(平安银行股份有限公司上海分行)

 

with

 

SHANGHAI PUDONG DEVELOPMENT BANK CO., LTD. SHANGHAI BRANCH

(上海浦东发展银行股份有限公司上海分行)

as Agent

 

and

 

SHANGHAI PUDONG DEVELOPMENT BANK CO., LTD. SHANGHAI BRANCH

(上海浦东发展银行股份有限公司上海分行)

as Security Agent 

 

Legal counsel to the Obligors Legal counsel to the Finance Parties
   

 

 

 

 

TABLE OF CONTENTS

 

Page

 

1 Definitions and Interpretation 1

 

2 The Facilities 79

 

3 Purpose 86

 

4 Conditions of Utilisation 87

 

5 Utilisation - Loans 89

 

6 Optional Currencies 91

 

7 Ancillary Facilities 92

 

8 Repayment 98

 

9 Illegality, Voluntary Prepayment and Cancellation 99

 

10 Mandatory Prepayment 101

 

11 Restrictions 104

 

12 Interest 106

 

13 Interest Periods 108

 

14 Changes to the Calculation of Interest 109

 

15 Fees 111

 

16 Tax Gross-Up and Indemnities 112

 

17 Increased Costs 115

 

18 Other Indemnities 117

 

19 Mitigation by the Lenders 119

 

20 Costs and Expenses 119

 

21 Representations 120

 

22 Information Undertakings 127

 

23 Financial Covenants 131

 

24 General Undertakings 143

 

25 Events of Default 162

 

26 Changes to the Lenders 167

 

27 Debt Purchase Transactions 174

 

28 Changes to the Obligors 178

 

29 Role of the Agent, the Arranger and Others 180

 

30 Conduct of Business by the Finance Parties 190

 

31 Sharing Among the Finance Parties 190

 

32 Payment Mechanics 192

 

33 Set-Off 195

 

34 Notices 195

 

35 Calculations and Certificates 198

 

  i
 

 

36 Partial Invalidity 198

 

37 Remedies and Waivers 198

 

38 Amendments and Waivers 198

 

39 Confidentiality 203

 

40 Counterparts 207

 

41 Governing Law 207

 

42 Enforcement 207

 

Schedule 1 The Original Lenders 210

 

Part A – Original Initial Term Facility Lenders 210
Part B – Original Cash Bridge Facility (Tranche A) Lenders 210
Part C – Original Cash Bridge Facility (Tranche B) Lenders 211

 

Schedule 2 Conditions Precedent and Conditions Subsequent 213
Schedule 3 Requests and Notices 222
Schedule 4 Form of Transfer Certificate 225
Schedule 5 Form of Assignment Agreement 228
Schedule 6 Form of Accession Deed 231
Schedule 7 Form of Compliance Certificate 234
Schedule 8 Form of Resignation Letter 235
Schedule 10 Timetables 236
Schedule 11 Security Principles 238
Schedule 12 Form of Increase Confirmation - Cancelled Commitments 246
Schedule 13 Forms of Notifiable Debt Purchase Transaction Notice 249
Schedule 14 Additional Facility 251
Schedule 15 Form of Confidentiality Undertaking 257
Schedule 16 Group Structure Chart 262
Schedule 17 Approved Banks 263

 

Signatures  

 

  ii
 

 

THIS AGREEMENT is dated 2 September 2020 and made BETWEEN:

 

(1) QUANTUM BLOOM COMPANY LTD, an exempted company incorporated in the Cayman Islands with limited liability with registration number 363043 and having its registered office at PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands as the original borrower under the Initial Facilities which will be merged into the Target on completion of the Merger and thereafter any reference to the Company means that surviving entity of the Merger (the Company);

 

(2) QUANTUM BLOOM GROUP LTD, an exempted company incorporated in the Cayman Islands with limited liability with registration number 363042 and having its registered office at PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands (the Parent);

 

(3) SHANGHAI PUDONG DEVELOPMENT BANK CO., LTD. SHANGHAI BRANCH (上海浦东发展银行股份有限公司上海分行), incorporated in the PRC with limited liability as sole original mandated lead arranger (the SOMLA), CHINA MERCHANTS BANK CO., LTD. SHANGHAI BRANCH (招商银行股份有限公司上海分行), incorporated in the PRC with limited liability as joint mandated lead arranger (the JMLA), INDUSTRIAL BANK CO., LTD. SHANGHAI BRANCH (兴业银行股份有限公司上海分行), incorporated in the PRC with limited liability and PING AN BANK CO., LTD., SHANGHAI BRANCH (平安银行股份有限公司上海分行), incorporated in the PRC with limited liability as arrangers (together with the SOMLA and JMLA and whether individually or together, the Arranger);

 

(4) THE FINANCIAL INSTITUTIONS listed in Part A of Schedule 1 (The Original Lenders) as original Initial Term Facility Lenders (the Original Initial Term Facility Lenders);

 

(5) THE FINANCIAL INSTITUTIONS listed in Part B of Schedule 1 (The Original Lenders) as original Cash Bridge Facility (Tranche A) Lenders (the Original Cash Bridge Facility (Tranche A) Lenders);

 

(6) THE FINANCIAL INSTITUTIONS listed in Part C of Schedule 1 (The Original Lenders) as original Cash Bridge Facility (Tranche B) Lenders (the Original Cash Bridge Facility (Tranche B) Lenders);

 

(7) SHANGHAI PUDONG DEVELOPMENT BANK CO., LTD. SHANGHAI BRANCH (上海浦东发展银行股份有限公司上海分行), incorporated in the PRC with limited liability as agent of the other Finance Parties (the Agent); and

 

(8) SHANGHAI PUDONG DEVELOPMENT BANK CO., LTD. SHANGHAI BRANCH (上海浦东发展银行股份有限公司上海分行), incorporated in the PRC with limited liability as security trustee for the Secured Parties (the Security Agent).

 

IT IS AGREED as follows:

 

1 Definitions and Interpretation

 

1.1 Definitions

 

In this Agreement:

 

Acceleration Event means an Event of Default in respect of which the Agent has taken any action pursuant to paragraph (b) or (c) of Clause 25.17 (Acceleration) in respect of the full principal amount of each of the Utilisation(s) then outstanding.

 

  1
 

 

Acceptable Funding Sources means, without double-counting, the aggregate of amounts constituting:

 

(a) New Shareholder Injections and/or any Permitted Sponsor Amounts;

 

(b) any Excess Cashflow;

 

(c) Retained Net Proceeds;

 

(d) amounts constituting Completion Opening Cash;

 

(e) (in the case of application towards capital expenditure only) investment grants (including subsidies) and landlord incentives received by Group Members;

 

(f) any prepayments waived by the Lenders; and

 

(g) the proceeds of any Financial Indebtedness not expressly restricted under this Agreement (but excluding any intra-group indebtedness) (including by way of Permitted Additional Debt, Permitted PRC Indebtedness or Refinancing Indebtedness);

 

in each case, which have not been and which are not required to be applied in prepayment of any of the Facilities and to the extent not otherwise already allocated or utilised for a purpose not restricted under the Finance Documents.

 

Accession Deed means a document substantially in the form set out in Schedule 6 (Form of Accession Deed).

 

Account Bank means an Offshore Account Bank or an Onshore Account Bank.

 

Account Control Agreement means any account control agreement entered into between, amongst others, the relevant Target Group Members and an Original Cash Bridge Facility (Tranche A) Lender in respect of any CBF Tranche A Cash or an Original Cash Bridge Facility (Tranche B) Lender in respect of any CBF Tranche B Cash (as the case may be) on or prior to the Initial Utilisation Date in respect of the Initial Term Facility with account control mechanism therein to be effective from the Closing Date in the form agreed by the Company and the Agent on or prior to the Signing Date.

 

Accounting Principles means, in respect of:

 

(a) a Group Member incorporated in a jurisdiction which has generally accepted accounting principles, standards and practices, the generally accepted accounting principles, standards and practices in that jurisdiction or IFRS; or

 

(b) the consolidated Group or a Group Member incorporated in a jurisdiction which does not have generally accepted accounting principles, standards and practices, IFRS.

 

Acquired Entity has the meaning given to that term in Clause 23.1 (Financial definitions).

 

Acquiring Company has the meaning given to that term in paragraph (b) of Permitted Disposal definition.

 

Additional Facility means one or more additional facilities made available pursuant to Clause 2.3 (Additional Facility) which are documented under this Agreement, including as new or existing facility commitment(s) and/or as an additional tranche or class of, or an increase of, or an extension of, any existing Facility or a previously incurred Additional Facility (including, in each case, term or revolving facilities and any Additional Revolving Facility).

 

  2
 

 

Additional Facility Borrower means the Company or any Offshore Material Company which is specified as a borrower under an Additional Facility in the applicable Additional Facility Notice and which becomes an Additional Facility Borrower in accordance with Clause 28.2 (Additional Facility Borrowers).

 

Additional Facility Commencement Date means in respect of an Additional Facility, the date specified as such in the Additional Facility Notice relating to that Additional Facility (being the date when the relevant Additional Facility is available for utilisation).

 

Additional Facility Commitment means:

 

(a) in relation to an Additional Facility Lender, the amount set out in each Additional Facility Notice signed by that Additional Facility Lender and the amount of any other Additional Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase - Cancelled Commitments) or Clause 2.3 (Additional Facility); and

 

(b) in relation to any other Lender, the amount of any Additional Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase - Cancelled Commitments) or Clause 2.3 (Additional Facility),

 

to the extent:

 

(i) not cancelled, reduced or transferred by it under this Agreement;

 

(ii) not deemed to be zero pursuant to Clause 27.2 (Debt Purchase Transactions by Sponsor Affiliates).

 

Additional Facility Lender means any Lender or other bank, financial institution, fund, entity or other person which signs an Additional Facility Notice and confirms its willingness to provide all or a part of an Additional Facility.

 

Additional Facility Lender Accession Notice means a notice substantially in the form set out in Part I (Form of Additional Facility Lender Accession Notice) of Schedule 14 (Additional Facility) or any other form agreed between the Agent and the Company (each acting reasonably).

 

Additional Facility Loan means a loan made or to be made under any Additional Facility or the principal amount outstanding for the time being of that loan (including any amount which is outstanding prior to the Additional Facility Commencement Date).

 

Additional Facility Notice means, in respect of an Additional Facility, a notice substantially in the form set out in Part II (Form of Additional Facility Notice for Additional Facility) of Schedule 14 (Additional Facility) (or any other form agreed between the Agent and the Company (each acting reasonably)) delivered by the Company to the Agent in accordance with Clause 2.3 (Additional Facility).

 

Additional Obligor means an Additional Facility Borrower or an Additional Security Provider.

 

Additional Revolving Facility means any Additional Facility which is designated as a revolving facility in an Additional Facility Notice.

 

Additional Revolving Facility Loan means a loan made or to be made under any Additional Revolving Facility or the principal amount outstanding for the time being of that loan (including any amount which is outstanding prior to the Additional Facility Commencement Date).

 

  3
 

 

Additional Revolving Facility Utilisation means an Additional Revolving Facility Loan or a letter of credit issued or to be issued under any Additional Revolving Facility.

 

Additional Security Provider means any Group Member which becomes an Additional Security Provider in accordance with Clause 28.3 (Additional Security Providers) and provides Security over all or any part of its assets under any of the Transaction Security Documents in accordance with Clause 24.29 (Conditions subsequent) after the Initial Utilisation Date of the Initial Term Facility.

 

Adjustment Amount has the meaning given to that term in Part A – Original Initial Term Facility Lenders of Schedule 1 (The Original Lenders).

 

Adjusted EBITDA has the meaning given to that term in Clause 23.1 (Financial definitions).

 

Adverse Controlled Entity Impact has the meaning given to that term in Clause 24.26 (Controlled Entities Documents).

 

Advisor means any advisory entity to a Sponsor.

 

Affected Lender has the meaning given to that term in paragraph (b) of Clause 14.2 (Market disruption).

 

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

 

Agent's Spot Rate of Exchange means, in relation to any currency (other than the applicable Base Currency), the Agent’s spot rate of exchange for the purchase of that currency with such Base Currency in the PRC interbank foreign exchange market at or about 11:00 a.m. on a particular day.

 

Agreed FX Rate means a rate of currency exchange for the purchase of US$ with RMB using the proceeds of the Cash Bridge Facility (Tranche B) Loan as agreed between the Company and the Agent on or prior to the Initial Utilisation Date of the Cash Bridge Facility (Tranche B).

 

Allocation Adjustment has the meaning given to that term in Part A – Original Initial Term Facility Lenders of Schedule 1 (The Original Lenders).

 

Ancillary Commencement Date means, in relation to an Ancillary Facility, the date on which that Ancillary Facility is first made available, which date shall be a Business Day within the Availability Period for the Additional Revolving Facility all or part of which is provided by way of such Ancillary Facility.

 

Ancillary Commitment means, in relation to an Ancillary Lender and an Ancillary Facility, the maximum Base Currency Amount which that Ancillary Lender has agreed (whether or not subject to satisfaction of conditions precedent) to make available from time to time under an Ancillary Facility and which has been authorised as such under Clause 7 (Ancillary Facilities), to the extent that amount is not cancelled or reduced under this Agreement or the Ancillary Documents relating to that Ancillary Facility.

 

Ancillary Document means each document relating to or evidencing the terms of an Ancillary Facility.

 

Ancillary Facility means any ancillary facility made available by an Ancillary Lender in accordance with Clause 7 (Ancillary Facilities).

 

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Ancillary Lender means each Lender (or Affiliate of a Lender) which makes available an Ancillary Facility in accordance with Clause 7 (Ancillary Facilities).

 

Ancillary Outstandings means, at any time, in relation to an Ancillary Lender and an Ancillary Facility then in force the aggregate of the equivalents (as calculated by that Ancillary Lender) in the Base Currency of the following amounts outstanding under that Ancillary Facility:

 

(a) the principal amount under each overdraft facility and on-demand short term loan facility (net of any Available Credit Balance);

 

(b) the face amount of each guarantee, bond and letter of credit under that Ancillary Facility; and

 

(c) the amount fairly representing the aggregate exposure (excluding interest and similar charges) of that Ancillary Lender under each other type of accommodation provided under that Ancillary Facility,

 

in each case as determined by such Ancillary Lender, acting reasonably in accordance with its normal banking practice and in accordance with the relevant Ancillary Document.

 

Annual Financial Statements means the financial statements for a Financial Year delivered pursuant to paragraph (a) of Clause 22.1 (Financial statements).

 

Anti-Corruption Laws means, as applicable, the US Foreign Corrupt Practices Act of 1977, the UK Bribery Act of 2010 and/or any similar anti-bribery laws, rules or regulations issued, administered or enforced by any Governmental Agency having jurisdiction over any Group Member concerning bribery and corruption.

 

Anti-Money Laundering Laws means all applicable money laundering statutes and rules and regulations thereunder and any related or similar rules, regulations or guidelines, which in each case are issued, administered or enforced by any Governmental Agency having jurisdiction over any Group Member concerning money laundering.

 

Applicable Jurisdiction has the meaning given to that term in Part II (Additional Obligor Conditions Precedent) of Schedule 2 (Conditions Precedent and Conditions Subsequent).

 

Approved Bank means:

 

(a) a Finance Party or any Affiliate of a Finance Party;

 

(b) any bank or financial institution listed in Schedule 17 (Approved Banks);

 

(c) a national commercial bank which is rated at least AA+ by any one of China Lianhe Credit Rating Co. Ltd., Dagong Global Credit Rating Co., Ltd. or China Chengxin International Credit Rating Co., Ltd;

 

(d) a commercial bank which is rated at least A-1 by Standard & Poor's Ratings Group or A3 by Moody's Investors Service, Inc. or a comparable rating from an internationally recognised credit rating agency for its long term debt obligations; or

 

(e) any other bank or financial institution approved by the Agent (acting on the instructions of the Majority Lenders),

 

provided that in the case of paragraphs (c) and (d) above, no bank or financial institution shall cease to be an Approved Bank as a result of a downgrade to its rating below the applicable rating threshold as set out in paragraphs (c) and (d) above unless (i) 90 Business Days has passed since the earlier of the date on which the Agent has notified the Company of such downgrade or the Company becomes aware of such downgrade and (ii) that bank or financial institution's rating on such date remains below the applicable rating threshold as set out in paragraphs (c) and (d) above.

 

  5
 

 

Asset Principles has the meaning given to that term in Schedule 11 (Security Principles).

 

Assignment Agreement means an agreement substantially in the form set out in Schedule 5 (Form of Assignment Agreement) or any other form agreed between the relevant assignor and assignee provided that if that other form does not contain the undertaking set out in the form set out in Schedule 5 (Form of Assignment Agreement) it shall not be a Creditor/Creditor Representative Accession Undertaking as defined in, and for the purposes of, the Intercreditor Agreement.

 

Assumed Commitment has the meaning given to that term in Clause 2.2 (Increase - Cancelled Commitments).

 

Auditors means (a) PricewaterhouseCoopers, Ernst & Young, KPMG or Deloitte & Touche; (b) any Affiliate of any auditors referred to in (a); or (c) any other firm approved in advance by the Majority Lenders (such approval not to be unreasonably withheld or delayed).

 

Authorisation means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration, in each case, as required by law.

 

Authorised Signatory means the CEO, the CFO or any director of the Company.

 

Availability Period means:

 

(a) (in relation to each Initial Facility) the period from and including the Signing Date to and including the earliest of:

 

(i) the Initial Utilisation Date of the Initial Term Facility;

 

(ii) the first date on which the Merger Agreement is terminated or ceases to have effect and has lapsed in accordance with its terms; and

 

(iii) 5 June 2021 subject to extension of a further 12 Months from the date of a newly issued commitment letter to be issued by the Arrangers on the same terms at the written request of the Company on a date falling no earlier than 5 December 2020, if the Company in its reasonable opinion, determines that the long stop date under the Merger Agreement has been or will be extended provided that internal credit approval for such newly issued commitment letter has been obtained by each Arranger; or

 

(b) (in relation to any Additional Facility), the availability period specified in the Additional Facility Notice delivered by the Company in accordance with Clause 2.3 (Additional Facility) for that Additional Facility.

 

Available Commitment means, in relation to a Lender and a Facility, that Lender's Commitment under that Facility minus:

 

(a) the Base Currency Amount of its participation in any outstanding Utilisations under that Facility and, in the case of any Additional Revolving Facility only, the Base Currency Amount of the aggregate of its (and its Affiliate's) Ancillary Commitments; and

 

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(b) in relation to any proposed Utilisation, the Base Currency Amount of its participation in any other Utilisations that are due to be made under such Facility on or prior to the proposed Utilisation Date, including, in the case of any Additional Revolving Facility only, the Base Currency Amount of its (and its Affiliate's) Ancillary Commitment in relation to any new Ancillary Facility that is due to be made available on or before the proposed Utilisation Date,

 

in each case, provided that for the purposes of calculating a Lender's Available Commitment in relation to any proposed Utilisation under any Additional Revolving Facility only, that Lender's participation in any Additional Revolving Facility Loans that are due to be repaid or prepaid on or prior to the proposed Utilisation Date and that Lender's (and its Affiliate's) Ancillary Commitments to the extent that they are due to be reduced or cancelled on or before the proposed Utilisation Date shall not be deducted from that Lender's Additional Facility Commitment in respect of an Additional Revolving Facility.

 

Available Credit Balance means, in relation to an Ancillary Facility, credit balances on any account of any Additional Facility Borrower of that Ancillary Facility with the Ancillary Lender making available that Ancillary Facility to the extent that those credit balances are freely available to be set off by that Ancillary Lender against liabilities owed to it by that Additional Facility Borrower under that Ancillary Facility.

 

Available Facility means in relation to a Facility, the aggregate for the time being of each Lender's Available Commitment in relation to that Facility.

 

Base Case Model means the financial model in the form agreed by the Company and the Agent on or prior to the Signing Date or as amended or supplemented with the consent of the Agent (acting reasonably and such consent shall not be unreasonably withheld or delayed).

 

Base Currency means:

 

(a) in relation to the Initial Term Facility, US dollars;

 

(b) in relation to the Cash Bridge Facility (Tranche A), US dollars;

 

(c) in relation to the Cash Bridge Facility (Tranche B), US dollars or RMB as selected by the Company in accordance with Clause 5.8 (Selection of currency for Cash Bridge Facility (Tranche B) Loan); and

 

(d) in relation to any Additional Facility, such Base Currency as specified in its Additional Facility Notice.

 

Base Currency Amount means:

 

(a) in relation to a Utilisation (other than a Utilisation of a Cash Bridge Facility (Tranche B) Loan with RMB selected as the Base Currency), the amount specified in the Utilisation Request delivered by a Borrower for that Utilisation or, in relation to a Utilisation of a Cash Bridge Facility (Tranche B) Loan with RMB selected as the Base Currency, the Cash Bridge Facility (Tranche B) Commitments in US$ that are proposed to be utilised in respect of that Loan ;

 

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(b) in relation to an Ancillary Commitment, the amount specified as such in the notice delivered to the Agent by the Company pursuant to Clause 7.2 (Availability) (or, if the amount specified is not denominated in the Base Currency, that amount converted into the Base Currency at the Agent's Spot Rate of Exchange on the date which is three Business Days before the Ancillary Commencement Date for that Ancillary Facility or, if later, the date the Agent receives the notice of the Ancillary Commitment in accordance with the terms of this Agreement); and

 

(c) in relation to an Additional Facility Commitment, the amount specified as such in the Additional Facility Notice delivered to the Agent by the Company pursuant to Clause 2.3 (Additional Facility) (or, if the amount specified is not denominated in the Base Currency, that amount of the Additional Facility converted into the Base Currency at the Agent's Spot Rate of Exchange on the date which is three Business Days before the Additional Facility Commencement Date for that Additional Facility or, if later, the date the Agent receives the notice of the Additional Facility in accordance with the terms of this Agreement),

 

as adjusted to reflect any repayment, prepayment, consolidation or division of a Utilisation, or (as the case may be) cancellation or reduction of an Ancillary Facility.

 

Basel II has the meaning given to that term in paragraph (b) of Clause 17.1 (Increased Costs).

 

Basel III has the meaning given to that term in paragraph (b) of Clause 17.1 (Increased Costs).

 

Borrower means the Company as the original borrower under the Initial Facilities and an Additional Facility Borrower unless, in each case, it has ceased to be a Borrower in accordance with Clause 28 (Changes to the Obligors).

 

Borrowings has the meaning given to that term in Clause 23.1 (Financial definitions).

 

Breach Period has the meaning given to that term in paragraph (a) of Clause 23.5 (Cure rights).

 

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

 

(a) the interest (excluding any portion thereof representing the Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in any Loan or any 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 that Unpaid Sum received been paid on the last day of that Interest Period;

 

exceeds:

 

(b) the amount which that Lender would be able to obtain by placing an amount equal to the principal amount of that Loan or that Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of that current Interest Period,

 

provided that there shall be no Break Cost in respect of any Cash Bridge Facility (Tranche B) Loan with RMB selected as the Base Currency.

 

Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in Beijing and Hong Kong and in relation to any Transaction Security Document entered into by any Group Member, the Relevant Jurisdiction of that Group Member, and:

 

(a) (in relation to any date for payment in US$) New York City; and

 

  8
 

 

(b) (the determination of any interest rate by reference to LIBOR for any Interest Period in relation to any Loan) London.

 

Cancellation Notice has the meaning given to that term in Clause 38.5 (Replaceable Lender).

 

Cancelled Commitment has the meaning given to that term in Clause 2.2 (Increase - Cancelled Commitments).

 

Capital Expenditure has the meaning given to that term in Clause 23.1 (Financial definitions).

 

Capital Reinvestment Purposes has the meaning given to that term in paragraph (s) of the definition of Permitted Disposal in Clause 1.1 (Definitions).

 

Capitalised Lease Obligations has the meaning given to that term in Clause 23.1 (Financial definitions).

 

Cash means, at any time, cash in hand or at bank and (in the latter case) credited to an account in the name of a Group Member with an Approved Bank and to which a Group Member is alone (or together with other Group Members) beneficially entitled and for so long as:

 

(a) that cash is repayable within 30 days after the relevant date of calculation;

 

(b) repayment of that cash is not contingent on the prior discharge of any other Financial Indebtedness of any Group Member or of any other person whatsoever or on the satisfaction of any other condition outside the control of the Group Members;

 

(c) there is no Security over that cash except for (i) any Permitted Security falling under any of paragraphs (a), (b), (i), (j), (k), (p), (q), (r) and (u) of the definition of Permitted Security or (ii) any other Permitted Security securing any Permitted Financial Indebtedness; and

 

(d) that cash is denominated in US dollars, RMB, HKD or other freely transferable and freely convertible currency and (except as mentioned in paragraphs (a) and/or (c) above) immediately available to the applicable Group Member (or, in the case of any term deposit, available at the expiry of the applicable term of such deposit or at any time subject to any loss of interest upon breaking the applicable term of such deposit),

 

and shall include cash in tills and cash in transit.

 

Cashflow has the meaning given to that term in Clause 23.1 (Financial definitions).

 

Cash Bridge Facilities means Cash Bridge Facility (Tranche A) and/or Cash Bridge Facility (Tranche B) (each a Cash Bridge Facility).

 

Cash Bridge Facility (Tranche A) means the offshore cash bridge facility made available under this Agreement as described in paragraph (b) of Clause 2.1 (The Initial Facilities).

 

Cash Bridge Facility (Tranche B) means the offshore cash bridge facility made available under this Agreement as described in paragraph (c) of Clause 2.1 (The Initial Facilities).

 

Cash Bridge Facility (Tranche A) Commitment means:

 

(a) in relation to an Original Cash Bridge Facility (Tranche A) Lender, the amount in US$ set opposite its name under the heading Cash Bridge Facility (Tranche A) Commitment in Schedule 1 (The Original Lenders) and the amount of any other Cash Bridge Facility (Tranche A) Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase - Cancelled Commitments); and

 

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(b) in relation to any other Cash Bridge Facility (Tranche A) Lender, the amount in US$ of any Cash Bridge Facility (Tranche A) Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase - Cancelled Commitments),

 

to the extent:

 

(i) not cancelled, reduced or transferred by it under this Agreement; and

 

(ii) not deemed to be zero pursuant to Clause 27.2 (Debt Purchase Transactions by Sponsor Affiliates).

 

Cash Bridge Facility (Tranche B) Commitment means:

 

(a) in relation to an Original Cash Bridge Facility (Tranche B) Lender, the amount in US$ set opposite its name under the heading Cash Bridge Facility (Tranche B) Commitment in Schedule 1 (The Original Lenders) and the amount of any other Cash Bridge Facility (Tranche B) Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase - Cancelled Commitments); and

 

(b) in relation to any other Cash Bridge Facility (Tranche B) Lender, the amount in US$ of any Cash Bridge Facility (Tranche B) Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase - Cancelled Commitments),

 

to the extent:

 

(i) not cancelled, reduced or transferred by it under this Agreement; and

 

(ii) not deemed to be zero pursuant to Clause 27.2 (Debt Purchase Transactions by Sponsor Affiliates).

 

Cash Bridge Facility (Tranche A) Lender means:

 

(a) any Original Cash Bridge Facility (Tranche A) Lender; and

 

(b) any bank, financial institution, trust, fund or other entity which has become an Cash Bridge Facility (Tranche A) Lender in accordance with Clause 2.2 (Increase - Cancelled Commitments) or Clause 26 (Changes to the Lenders),

 

which, in each case, has not ceased to be a Cash Bridge Facility (Tranche A) Lender in accordance with this Agreement, and for which purposes the:

 

(i) termination in full of all of the Cash Bridge Facility (Tranche A) Commitment(s) of any Cash Bridge Facility (Tranche A) Lender; and

 

(ii) payment in full of all amounts which are payable to such Cash Bridge Facility (Tranche A) Lender under the Finance Documents,

 

will result in that Cash Bridge Facility (Tranche A) Lender ceasing to be regarded as a Cash Bridge Facility (Tranche A) Lender for the purposes of and in relation to any provision of any of the Finance Documents requiring consultation with or the consent or approval of or instruction from all the Lenders, the Super Majority Lenders, the Majority Lenders and/or any class or group of Lenders.

 

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Cash Bridge Facility (Tranche B) Lender means:

 

(a) any Original Cash Bridge Facility (Tranche B) Lender; and

 

(b) any bank, financial institution, trust, fund or other entity which has become an Cash Bridge Facility (Tranche B) Lender in accordance with Clause 2.2 (Increase - Cancelled Commitments) or Clause 26 (Changes to the Lenders),

 

which, in each case, has not ceased to be a Cash Bridge Facility (Tranche B) Lender in accordance with this Agreement, and for which purposes the:

 

(i) termination in full of all of the Cash Bridge Facility (Tranche B) Commitment(s) of any Cash Bridge Facility (Tranche B) Lender; and

 

(ii) payment in full of all amounts which are payable to such Cash Bridge Facility (Tranche B) Lender under the Finance Documents,

 

will result in that Cash Bridge Facility (Tranche B) Lender ceasing to be regarded as a Cash Bridge Facility (Tranche B) Lender for the purposes of and in relation to any provision of any of the Finance Documents requiring consultation with or the consent or approval of or instruction from all the Lenders, the Super Majority Lenders, the Majority Lenders and/or any class or group of Lenders.

 

Cash Bridge Facility (Tranche A) Loan means a loan made or to be made under the Cash Bridge Facility (Tranche A) Facility or the principal amount outstanding for the time being of that loan.

 

Cash Bridge Facility (Tranche B) Loan means a loan made or to be made under the Cash Bridge Facility (Tranche B) Facility or the principal amount outstanding for the time being of that loan.

 

Cash Equivalent Investments means at any time:

 

(a) (i) certificates of deposit or time deposits (in each case) maturing within one year, or (ii) structured deposits maturing within six months, (in each case) after the relevant date of calculation and issued or distributed by (A) any national commercial bank in the PRC; or (B) an Approved Bank;

 

(b) any investment in marketable debt obligations maturing within one year after the relevant date of calculation which is not convertible or exchangeable to any other security, issued or guaranteed by a government, Governmental Agency or multilateral intergovernmental organisation which is rated at least A-1 by S&P Global Ratings, F1 by Fitch Ratings Ltd. or P-1 by Moody's Investors Service Limited;

 

(c) any investment in debt securities maturing within one year after the relevant date of calculation which is not convertible into any other security and is rated either A-1 or higher by S&P Global Ratings, F1 or higher by Fitch Ratings Ltd. or P-1 or higher by Moody's Investors Service Limited (or, if no rating is available in respect of such debt securities, the issuer of which has, in respect of its long-term debt obligations, an equivalent rating);

 

(d) commercial paper not convertible or exchangeable to any other security:

 

(i) for which a recognised trading market exists;

 

  11
 

 

(ii) which matures within one year after the relevant date of calculation; and

 

(iii) which has a credit rating of either A-1 or higher by S&P Global Ratings, F1 or higher by Fitch Ratings Ltd. or P-1 or higher by Moody's Investors Service Limited, or, if no rating is available in respect of such commercial paper, the issuer of which has, in respect of its long-term unsecured and non-credit enhanced debt obligations, an equivalent rating;

 

(e) investments accessible within three months in money market funds which:

 

(i) have a credit rating of either A-1 or higher by S&P Global Ratings, F-1 or higher by Fitch Ratings Ltd. or P-1 or higher by Moody's Investors Service Limited; and

 

(ii) invest substantially all of their assets in securities or investments of the types described in paragraphs (a) to (d) above;

 

(f) time deposit accounts, certificates of deposit and money market deposits (which mature within one year after the relevant date of calculation) with:

 

(i) any Approved Bank; or

 

(ii) any other bank or trust company organised under the laws of the PRC whose long-term debt is rated as high as or higher than any of those entities referred to in paragraph (f)(i) above; or

 

(g) any other debt security approved by the Agent (acting on the instructions of the Majority Lenders, with each Lender acting reasonably),

 

in each case, denominated in US dollars, RMB, HKD or other freely transferable and freely convertible currencies and which any Group Member is alone (or together with other Group Members) beneficially entitled at that time and which is not issued or guaranteed by any Group Member or subject to any Security (other than (A) any Permitted Security falling under any of paragraphs (a), (b), (i), (j), (k), (p), (q), (r) and (u) of the definition of Permitted Security or (B) any other Permitted Security securing any Permitted Financial Indebtedness).

 

Cash Pledge has the meaning given to that term in the definition of Permitted Collateralised Indebtedness.

 

CBF Cash has the meaning given to that term in paragraph (g) of Clause 24.29 (Conditions subsequent).

 

CBF Currency means, in respect of a Cash Bridge Facility, the Base Currency of the Loan under that Cash Bridge Facility.

 

CBF Exchange Rate means, on the date of determination, the central parity rate between RMB and US$ published by China Foreign Exchange Trade System (中国外汇交易中心银行间外汇市场人民币汇率中间价) at or about 9:15 a.m. (Beijing time) on that date.

 

CBFB Currency Selection Notice has the meaning to that term in Clause 5.8 (Selection of currency for Cash Bridge Facility (Tranche B) Loan).

 

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CBF Test Date means the day which is numerically corresponding to the Initial Utilisation Date of the Cash Bridge Facility (Tranche B) in each subsequent calendar month, except that:

 

(a) (subject to paragraph (b) below) if such numerically corresponding day is not a PRC Business Day, the CBF Test Date shall be the next PRC Business Day in that calendar month if there is one, or if there is not, on the immediately PRC preceding Business Day;

 

(b) if there is no numerically corresponding day in that calendar month, the last PRC Business Day in that calendar month.

 

CBF Security means any Transaction Security over any CBF Cash pursuant to paragraph (g) of Clause 24.29 (Conditions subsequent).

 

CBF Security Coordination Agreement means any coordination agreement to be entered into between, among others, the Company, the Agent, the Security Agent and the Original Cash Bridge Facility (Tranche A) Lenders or the Original Cash Bridge Facility (Tranche B) Lenders (as the case may be) in respect of coordination of CBF Security.

 

CBF Security Signing Date means, in respect of a Cash Bridge Facility, the date upon which the Transaction Security Documents in relation to the CBF Security securing such Cash Bridge Facility are duly executed by the parties thereto.

 

CBF Tranche A Accounts has the meaning given to that term in paragraph (g) of Clause 24.29 (Conditions subsequent).

 

CBF Tranche A Cash has the meaning given to that term in paragraph (g) of Clause 24.29 (Conditions subsequent).

 

CBF Tranche B Accounts has the meaning given to that term in paragraph (g) of Clause 24.29 (Conditions subsequent).

 

CBF Tranche B Cash has the meaning given to that term in paragraph (g) of Clause 24.29 (Conditions subsequent).

 

CBF (Tranche B) Interest Payment Date means each of 21 March, 21 June, 21 September and 21 December of each year.

 

CEO means the chief executive officer of the Group for the time being (or such person(s) undertaking such equivalent role from time to time).

 

Certain Funds Event means:

 

(a) a Major Default is continuing;

 

(b) a Change of Control has occurred; or

 

(c) a Certain Funds Illegality Event is continuing.

 

Certain Funds Illegality Event means:

 

(a) it becomes illegal in any applicable jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or to fund, issue or maintain its participation in a Certain Funds Utilisation due to a Change in Law (provided that this shall not affect the obligation of any other Lender); and

 

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(b) any funding shortfall created as a result of such illegality or unlawfulness referred to in paragraph (a) above is not and cannot be met by the aggregate of:

 

(i) funding or commitment provided by one or more new or existing Lenders as a result of all or part of the Commitment (attributable to such first-mentioned Lender) being transferred or assigned to (or as a result of equivalent Commitment(s)) assumed by such new or existing Lenders in accordance with Clause 2.2 (Increase - Cancelled Commitments), Clause 2.3 (Additional Facility), Clause 19 (Mitigation By The Lenders) or Clause 38.5 (Replaceable Lender); and

 

(ii) the Group’s own funds (including the proceeds of any New Shareholder Injections made available to the Company).

 

Certain Funds Period means:

 

(a) in respect of an Initial Facility, the period from the Signing Date until (and including) the last day of the Availability Period in respect of that Initial Facility; and

 

(b) in respect of an Additional Facility which purpose is for funding any Permitted Acquisition and which all of the Additional Facility Lenders providing such Additional Facility have agreed shall be provided on a "certain funds basis" in accordance with the provisions of Clause 4.3 (Certain Funds Utilisation), the period specified in the relevant Additional Facility Notice.

 

Certain Funds Utilisation means:

 

(a) a Utilisation made or to be made under an Initial Facility during the Certain Funds Period applicable to that Initial Facility; and

 

(b) in respect of an Additional Facility the purpose of which is for funding any Permitted Acquisition or such other agreed purpose and in respect of which all of the Additional Facility Lenders providing such Additional Facility have agreed shall be provided on a "certain funds basis" in accordance with the provisions of Clause 4.3 (Certain Funds Utilisation), a Utilisation made or to be made under the relevant Additional Facility during the Certain Funds Period solely for any of the purposes agreed with the relevant Additional Facility Lenders providing such Additional Facility.

 

CFO means the chief financial officer of the Group for the time being (or such person(s) undertaking such equivalent role from time to time).

 

Change in Law means, with respect to a Lender:

 

(a) the introduction of any law or regulation occurring after the later of (i) the Signing Date and (ii) the date on which that Lender became Party as a Lender (such later date being the Relevant Date in respect of such Lender); or

 

(b) any change in or re-enactment of (or in the interpretation, administration or application of) any law or regulation in existence as at the Relevant Date (in respect of such Lender) that results in such law or regulation not being substantively comparable to or being materially more onerous to comply with than, in each case, such law or regulation as at the Relevant Date in respect of such Lender, but, in each case, excluding the introduction of, change in or re-enactment of any law or regulation that has been overcome and no longer affects such Lender.

 

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Change of Control means any of the following events: (A) the Sponsors (taken together) cease to control the Company; (B) at any time, the Founder and his Family Members (in the aggregate) cease to hold directly or indirectly at least 10% of the issued shares or voting power of the Target or (after the Closing Date) the Company; or (C) at any time after the Closing Date, the Founder and his Family Members cease to have the power to appoint at least one director to the board of directors of the Company. For the purposes of this definition, control of the Company means:

 

(a) before the occurrence of an IPO:

 

(i) the ownership (directly or indirectly) of more than 50 per cent. of the issued shares and voting power of the Company; and

 

(ii) the power to appoint or remove all of the directors or other equivalent officers of the Company which together control at least the majority of votes which may be cast at a meeting of the board of directors of the Company; and

 

(b) on and following the occurrence of an IPO:

 

(i) the ownership of (directly or indirectly) more than 30 per cent. of the issued shares and voting power of the Company; and

 

(ii) the holding of a greater percentage of the voting share capital or the issued share capital of the Company than any other person or group of persons acting in concert (other than any Sponsor).

 

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

 

Clean-Up Date means,

 

(a) in respect of the Merger, the date falling 120 Business Days after the Closing Date; and

 

(b) in respect of any Permitted Business Acquisition or any acquisition falling within paragraph (b) of the definition of Permitted Acquisition, the date falling 120 Business Days from the closing of that Permitted Business Acquisition or acquisition.

 

Clean-Up Default means an Event of Default other than an Event of Default under Clauses 25.1 (Non-payment), 25.6 (Insolvency), 25.7 (Insolvency proceedings), 25.8 (Creditors' process), 25.9 (Unlawfulness and invalidity) and 25.14 (Repudiation and rescission of agreements).

 

Clean-Up Representation means any of the representations and warranties under Clause 21 (Representations).

 

Clean-Up Undertaking means any of the undertakings specified in Clause 22 (Information Undertakings) and Clause 24 (General Undertakings) (other than Clause 24.29 (Conditions subsequent)).

 

Closing Date means the date on which the completion of the Merger occurs.

 

Closing Legal Opinion means the legal opinions of:

 

(a) Linklaters, legal advisors to the Agent and the Arrangers as to the laws of Hong Kong;

 

(b) JunHe LLP, legal advisors to the Agent and the Arrangers as to the laws of the PRC; and

 

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(c) Harney Westwood & Riegels, legal advisors to the Agent and Arrangers as to the laws of the Cayman Islands,

 

provided that, in each case, if such legal advisor to the Agent and Arranger is not willing to issue such legal opinion, the Company’s legal counsel may deliver such legal opinion in a materially equivalent form or such other form agreed between the Agent, the Arranger and the Company’s legal counsel.

 

Code means the US Internal Revenue Code of 1986.

 

Commitment means the Initial Term Facility Commitment, Cash Bridge Facility (Tranche A) Commitment, Cash Bridge Facility (Tranche B) Commitment or an Additional Facility Commitment, provided that:

 

(a) any reference to a Commitment in relation to the Initial Term Facility shall be a reference to Initial Term Facility Commitment;

 

(b) any reference to a Commitment in relation to the Cash Bridge Facility (Tranche A) shall be a reference to Cash Bridge Facility (Tranche A) Commitment;

 

(c) any reference to a Commitment in relation to the Cash Bridge Facility (Tranche B) shall be a reference to Cash Bridge Facility (Tranche B) Commitment; and

 

(d) any reference to a Commitment in relation to an Additional Facility shall be a reference to Additional Facility Commitment.

 

Company Prepayment Account has the meaning given to that term in paragraph (a) of Clause 24.34 (Prepayment Account).

 

Competitor means any person or entity (other than a Group Member) engaging principally in a business that is in commercial competition with the Core Business and each Affiliate of such person or entity engaged in such activities.

 

Completion Opening Cash means the aggregate Cash and Cash Equivalent Investments held by any Group Member immediately after the Closing Date (after deducting any CBF Cash).

 

Compliance Certificate means a certificate substantially in the form set out in Schedule 7 (Form of Compliance Certificate).

 

Confidential Information means all information relating to an Investor, the Parent, the Company, any Obligor, the Group, the Target Group, the Merger, the Transaction Documents or any or all of the Facilities which is provided to a Finance Party in its capacity as, or for the purpose of it becoming, a Finance Party (the Receiving Party) in relation to the Merger, the Finance Documents or any or all of the Facilities by an Investor, the Parent, the Company, the Group, the Target Group or any of their Affiliates or advisers (the Providing Party), in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes information that:

 

(a) is or becomes public information other than as a direct or indirect result of any breach by the Receiving Party of a confidentiality agreement to which that Receiving Party is party;

 

(b) is identified in writing at the time of delivery as non-confidential by the Providing Party; or

 

  16
 

 

(c) is known by the Receiving Party before the date such information is disclosed to the Receiving Party by the Providing Party or is lawfully obtained by the Receiving Party after that date, from a source which is, as far as the Receiving Party is aware, unconnected with the Investors, the Parent, the Company, the Group and the Target Group and which, in either case, as far as the Receiving Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.

 

Confidentiality Undertaking means a confidentiality undertaking substantially in the form as set out in Schedule 15 (Form of Confidentiality Undertaking) or in any other form agreed between the Company and the Agent, in each case which is capable of being relied upon by the Company without requiring its signature and which has not been materially amended without the consent of the Company.

 

Conflicted Lender means any Lender (which term, for the purposes of this definition shall include any Affiliate of that Lender) which is or is acting on behalf of (including in its capacity as the grantor of a Participation or any other agreement pursuant to which such rights may pass):

 

(a) a Competitor;

 

(b) an investor or equity holder in a Competitor; or

 

(c) an adviser to any such person referred to in paragraphs (a) or (b) above,

 

in each case whether before or after such person becomes a Lender and including where a Lender notifies the Agent that it is such (in a Transfer Certificate or otherwise) and where it has been notified as such to the Agent by the Company (acting reasonably and in good faith), provided that a Lender will not be deemed to be a Conflicted Lender solely by virtue of that Lender:

 

(i) dealing in shares in or securities of a Competitor, where the relevant teams and employees of that Lender engaged in such dealings operate on the public side of an Information Barrier;

 

(ii) becoming an investor or equity holder in a Competitor as a consequence of a debt-for-equity swap in, or enforcement of security over shares of, that Competitor; provided that the relevant teams and employees of that Lender involved in such transactions are separated from any teams or employees of that Lender working in relation to the Group and the Finance Documents (and related transactions) by way of an Information Barrier;

 

(iii) engaging in any merger and acquisition or other advisory activity in relation to or on behalf of a Competitor, provided that the relevant teams and employees of that Lender involved in such advisory activity are separated from any teams or employees of that Lender working in relation to the Group and the Finance Documents (and related transactions) by way of an Information Barrier;

 

(iv) being an investor or equity holder in a Competitor through a separately managed private equity investment fund owned or managed by that Lender, provided that the relevant teams and employees of that Lender involved in such private equity fund are separated from any teams or employees of that Lender working in relation to the Group and the Finance Documents (and related transactions) by way of an Information Barrier; or

 

(v) having one or more Affiliates who is an investor or equity holder of less than (in aggregate) 10% equity interest in a Competitor.

 

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Controlled Entities Documents mean any arrangement, instrument or agreement constituting a Controlled Entities Structure including any amendment, renewal or replacement of any of the foregoing, and a Controlled Entities Document means any one of them.

 

Controlled Entities Structure means any arrangement, for the purposes of the consolidated financial statements of the Company, where an entity (that is established in the PRC and in respect of which the Company does not, directly or indirectly, hold or own a majority of its equity interests) (each a Controlled Entity) and/or any or all of its shareholder(s) enter into contractual arrangements with any member of the Group which enables the Company to exercise effective control over and consolidate the financial condition and results of operation of such Controlled Entity in accordance with GAAP.

 

Controlled Entity has the meaning given to that term in the definition of Controlled Entities Structure.

 

Core Assets means the real estate agency business (房产经纪), recruitment agency (招聘) business and local yellow page business (本地黄页) of the Target Group, equity interests of each WFOE and each Material Company that is incorporated in the PRC holding such businesses (including equity interests of each Initial WFOE) (and for the avoidance of doubt, exclude any entity which is not a Target Group).

 

Core Business means the business of developing, managing and providing services (including related financial services) in respect of the Core Assets.

 

Credit-Specific Account means any interest reserve, debt service or similar account established in accordance with any Additional Facility and designated as such by the Company.

 

Credit-Specific Transaction Security means any Transaction Security over any Credit-Specific Account.

 

Cure Amount has the meaning given to that term in Clause 23.5 (Cure rights).

 

Debt Purchase Transaction means, in relation to a person, a transaction where such person:

 

(a) purchases by way of assignment or transfer;

 

(b) enters into any sub-participation in respect of; or

 

(c) enters into any other agreement or arrangement having an economic effect substantially similar to a sub-participation in respect of,

 

any Commitment (or any commitment represented thereby) or amount outstanding under this Agreement.

 

Debt Service Reserve Account means the bank account opened or to be opened in the name of the Company with the Agent or its Affiliates in which the Debt Service Reserve Amount is maintained.

 

Debt Service Reserve Amount means, in respect of the Initial Term Facility Loan, for any Debt Service Reserve Period in respect of a DSRA Calculation Date, the amount calculated as at that DSRA Calculation Date, to be the interest and periodic fee under any Fee Letter that will accrue on the outstanding principal amount under the Initial Term Facility with respect to that Initial Term Facility Loan during that Debt Service Reserve Period (determined by applying a forward-looking basis the rates of interest and periodic fee under any Fee Letter most recently determined in relation to the Initial Term Facility Loan (being the rates of interest and periodic fee under any Fee Letter determined for the Interest Period commencing on that DSRA Calculation Date) and assuming that such rates of interest and periodic fee under any Fee Letter will not change during that Debt Service Reserve Period) and assume, for the purposes of such calculation, that no prepayment of the Initial Term Facility Loan will be made during such period.

 

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Debt Service Reserve Period means, in respect of a DSRA Calculation Date, a period commencing on that DSRA Calculation Date and ending on the later of (i) the last day of the current Interest Period commencing on that DSRA Calculation Date for the Initial Term Facility Loan determined in accordance with Clause 13 (Interest Periods) and (ii) the date falling 90 days after that DSRA Calculation Date.

 

Default means an Event of Default or any event or circumstance specified in Clause 25 (Events of Default) (save for Clause 25.17 (Acceleration) and Clause 25.18 (Clean-up period)) 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, provided that any such event which requires the satisfaction of a condition as to materiality before it becomes an Event of Default shall not be a Default until that condition is satisfied.

 

Defaulting Lender means any Lender (other than a Lender which is a Sponsor Affiliate):

 

(a) which has failed to make its participation in a Loan available or has notified the Agent that it will not make its participation in a Loan available by the Utilisation Date for such Loan in accordance with Clause 5.4 (Lenders’ participation);

 

(b) which has otherwise rescinded or repudiated any of its material obligations under a Finance Document; or

 

(c) with respect to which an Insolvency Event has occurred and is continuing,

 

unless, in the case of paragraph (a) above:

 

(i) its failure to pay is caused by:

 

(A) administrative or technical error; or

 

(B) a Disruption Event; and

 

payment is made within three Business Days of its due date; or

 

(ii) that Lender is disputing in good faith whether it is contractually obliged to make the payment in question.

 

Deferred Consideration means, in relation to a Permitted Acquisition, any vendor loan, earn out or other deferred payment arrangement entered into in connection with that Permitted Acquisition.

 

Delegate means any delegate, agent, attorney or co-trustee appointed by the Security Agent.

 

Designated Gross Amount means the amount notified by the Company to the Agent upon the establishment of a Multi-account Overdraft as being the maximum amount of Gross Outstandings that will, at any time, be outstanding under that Multi-account Overdraft.

 

  19
 

 

Designated Net Amount means the amount notified by the Company to the Agent upon the establishment of a Multi-account Overdraft as being the maximum amount of Net Outstandings that will, at any time, be outstanding under that Multi-account Overdraft.

 

Discharged Rights and Obligations has the meaning given to that term in Clause 26.5 (Procedure for transfer).

 

Disclosure letter means a disclosure letter setting out certain existing transactions of the Target Group and certain transactions contemplated by the Target Group provided by the Company and accepted by the Agent on or prior to the Signing Date.

 

Disposal means a sale, lease, licence, transfer, loan or other disposal by a person of any asset, undertaking or business (whether by a voluntary or involuntary single transaction or series of transactions).

 

Disposal Proceeds means:

 

(a) the Net Proceeds of any Disposal (falling within paragraph (s) of the definition of Permitted Disposal) made by any Group Member except for Excluded Disposal Proceeds; and

 

(b) the Net Proceeds of any Disposal of Core Assets made by any Group Member provided that the Majority Lenders have given their prior consent to such Disposal.

 

Disposed Entity has the meaning given to that term in Clause 23.1 (Financial definitions).

 

Dispute has the meaning given to that term in Clause 42.1 (Jurisdiction of Hong Kong courts).

 

Disruption Event means either or both of:

 

(a) a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facilities (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; and/or

 

(b) the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

 

(i) from performing its payment obligations under the Finance Documents; or

 

(ii) from communicating with other Parties in accordance with the terms of the Finance Documents, and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.

 

Dissenting Shareholders has the meaning given to it in the Merger Agreement.

 

Dissenting Shares has the meaning given to it in the Merger Agreement.

 

Distressed Investor means a loan to own fund, vulture fund, distressed debt fund or any other entity (including a business group within a bank or financial institution) which is established for or principally invests in distressed debt (or any similar fund or entity).

 

  20
 

 

Dividend Proceeds means any dividends, distributions, money, interests, repayment of shareholder loan, repatriation of capital or other income receivable by such Group Member in respect of or pursuant to its ownership and equity interests in its direct Subsidiaries.

 

Dividends Collection Account means a dividends collection account opened or to be opened in the name of a Group Member with the Agent or its Affiliates into which the Dividend Proceeds receivable by such Group Member will be deposited.

 

DSRA Calculation Date means the first day of any Interest Period for the Initial Term Facility Loan.

 

DSRA Excess Amount has the meaning given to that term in paragraph (d) of Clause 24.32 (Debt Service Reserve Account).

 

EBITDA has the meaning given to that term in Clause 23.1 (Financial definitions).

 

EBITDA Cure has the meaning given to that term in Clause 23.5 (Cure rights).

 

Environment means humans, animals, plants and all other living organisms including the ecological systems of which they form part and the following media:

 

(a) air (including air within natural or man-made structures, whether above or below ground);

 

(b) water (including territorial, coastal and inland waters, water under or within land and water in drains and sewers); and

 

(c) land (including land under water).

 

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

 

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

 

(a) the pollution or protection of the Environment;

 

(b) the conditions of the workplace; or

 

(c) the generation, handling, storage, use, release or spillage of any substance which, alone or in combination with any other, is capable of causing harm to the Environment, including any waste.

 

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

 

Equity Investment means the aggregate of:

 

(a) the cash proceeds received by the Parent for the fully paid ordinary shares issued by the Parent to its shareholders, such cash proceeds which are contributed by the Parent to the Company on or prior to the Closing Date;

 

(b) the cash proceeds of Parent Liabilities received by the Company from the Parent on or prior to the Closing Date; and

  

  21
 

 

(c) the rollover consideration for the Merger in the form of exchanging shares and/or equity interests in the Target for shares and/or equity interest in the Parent by the Supporting Shareholders and/or their Affiliates pursuant to the Support Agreement or the Tencent Rollover Agreement.

 

Event of Default means any event or circumstance specified as such in Clause 25 (Events of Default) (save for Clause 25.17 (Acceleration) and Clause 25.18 (Clean-up period)).

 

Exceptional Items has the meaning given to that term in Clause 23.1 (Financial definitions).

 

Excess Cashflow has the meaning given to that term in Clause 23.1 (Financial definitions).

 

Excess Cashflow Financial Year has the meaning given to that term in Clause 23.1 (Financial definitions).

 

Excluded Disposal Proceeds means any proceeds of any Disposal:

 

(a) arising from paragraph (s) of the definition of Permitted Disposal which are applied or committed or designated to be applied (and subsequently actually applied) towards any Capital Reinvestment Purposes within the applicable Reinvestment Period;

 

(b) arising from paragraph (s) of the definition of Permitted Disposal which are applied or committed or designated to be applied (and subsequently actually applied) towards any General Reinvestment Purposes within the applicable Reinvestment Period, but only to the extent that the aggregate amount of all such proceeds applied for the General Reinvestment Purposes does not exceed US$150,000,000 (or its equivalent) in any Financial Year (the General Reinvestment Basket) (so that any excess constituted by any such proceeds shall, immediately following the expiry of the applicable Reinvestment Period for such proceeds, cease to be to excluded under this paragraph (b)); or

 

(c) any Net Proceeds of any Disposal of Core Assets made by any Group Member not required to be applied in prepayment of any of the Facilities.

 

Existing Joint Venture means:

 

(a) a Joint Venture in existence at the Closing Date or a Joint Venture in respect of which a contractual commitment relating to the entry into of that Joint Venture has been entered into by a Target Group Member on or prior to the Closing Date; or

 

(b) any Joint Venture (i) to which any Future Acquisition Target (or any Subsidiary thereof) is party and in existence as at the closing date of the Permitted Business Acquisition relating to such Future Acquisition Target or (ii) where a contractual commitment relating to the entry into of that Joint Venture has been entered into by any Future Acquisition Target (or any Subsidiary thereof) as at the closing date of the Permitted Business Acquisition relating to such Future Acquisition Target.

 

Existing Lender has the meaning given to that term in Clause 26.1 (Transfers by the Lenders).

 

Existing Obligor has the meaning given to that term in the definition of Permitted Reorganisation.

 

Facilities means each Initial Facility and each Additional Facility (each a Facility).

 

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Facility Office means:

 

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

 

(b) in respect of any other Finance Party, the office in the jurisdiction in which it is resident for tax purposes.

 

Family Members means, in relation to any individual, his or her spouse, his or her lineal descendants, brothers and sisters, and any trust or other similar entity established for the sole benefit of or the sole beneficial owner(s) of which (directly or indirectly) are any or all of the foregoing, any of their respective heirs, estate or any executor of their respective estate, any/or (in the case of any such trust or other similar entity) any trustee in bankruptcy or similar officer in respect of any such trust or such other similar entity.

 

FATCA means:

 

(a) sections 1471 to 1474 (or any successor sections thereto) of the Code, any associated regulations and other official guidance;

 

(b) any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the United States of America and any other jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or

 

(c) any agreement pursuant to the implementation of paragraphs (a) or (b) above with the United States Internal Revenue Service, the government of the United States of America or any governmental or taxation authority in any other jurisdiction.

 

FATCA Application Date means:

 

(a) in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the United States of America), 1 July 2014; or

 

(b) in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraph (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA, or, in each case, such other date from which such payment may become subject to a deduction or withholding required by FATCA after the Signing Date.

 

FATCA Deduction means a deduction or withholding from a payment under a Finance Document required by FATCA.

 

FATCA Exempt Party means a Party that is entitled to receive payments free from any FATCA Deduction.

 

Fee Letter means:

 

(a) any letter or letters between a Finance Party and the Company setting out any of the fees referred to in Clause 15.1 (Upfront and/or arrangement fee); and

 

(b) any agreement setting out fees payable to a Finance Party referred to in paragraph (f) of Clause 2.2 (Increase - Cancelled Commitments) or paragraph (o) of Clause 2.3 (Additional Facility) or under any other Finance Document.

 

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Finance Document means this Agreement, any Accession Deed, any Compliance Certificate, any Fee Letter, any Hedging Agreement, the Intercreditor Agreement, any CBF Security Coordination Agreement, any Resignation Letter, any Selection Notice, any Increase Confirmation - Cancelled Commitments, any Ancillary Document, any Transaction Security Document, any Account Control Agreement (prior to the granting of any CBF Security), any Utilisation Request, any Additional Facility Notice, any Additional Facility Lender Accession Notice and any other document designated as a Finance Document by the Agent and the Company in writing, provided that where the term Finance Document is used in, and construed for the purposes of, this Agreement or the Intercreditor Agreement, a Hedging Agreement shall be a Finance Document only for the purposes of:

 

(a) the definition of Material Adverse Effect;

 

(b) paragraph (a) of the definition of Permitted Transaction;

 

(c) the definition of Transaction Documents;

 

(d) Clauses 2.4 (Finance Parties' rights and obligations) and 2.5 (Obligors' Agent);

 

(e) the definition of Transaction Security Documents;

 

(f) paragraph (a)(v) of Clause 1.2 (Construction); and

 

(g) Clause 25 (Events of Default) (other than Clause 25.14 (Repudiation and rescission of agreements) and Clause 25.17 (Acceleration)).

 

Finance Lease means any lease or hire purchase contract which would, in accordance with the Accounting Principles, be treated as a finance or capital lease.

 

Finance Party means the Agent, the Arranger, the Security Agent, a Lender or a Hedge Counterparty or any Ancillary Lender provided that where the term Finance Party is used in, and construed for the purposes of, this Agreement or the Intercreditor Agreement, a Hedge Counterparty shall be a Finance Party only for the purposes of:

 

(a) the definition of Secured Parties;

 

(b) paragraph (a)(i) of Clause 1.2 (Construction);

 

(c) paragraph (c) of the definition of Material Adverse Effect;

 

(d) Clauses 2.4 (Finance Parties' rights and obligations) and 2.5 (Obligors' Agent);

 

(e) Clause 25.10 (Intercreditor Agreement) and Clause 25.14 (Repudiation and rescission of agreements); and

 

(f) Clause 30 (Conduct of Business by the Finance Parties).

 

Financial Half-Year has the meaning given to that term in Clause 23.1 (Financial definitions).

 

Financial Indebtedness means (without double counting) any indebtedness in respect of:

 

(a) moneys borrowed;

 

  24
 

 

(b) any moneys raised under or pursuant to any debenture, bond (other than a performance bond or advance payment bond), note or loan stock or other similar debt instrument (but, in each case, excluding Trade Instruments);

 

(c) any amount raised pursuant to any acceptance or documentary credit or by a bill discounting or factoring credit facility or dematerialised equivalents thereof (other than to the extent the same is discounted or factored on a non-recourse basis);

 

(d) receivables sold or discounted (otherwise than on a non-recourse basis) but only to the extent of the recourse to the relevant Group Member;

 

(e) the amount of liability under any deferred purchase agreement arranged primarily as a method of raising finance and is either treated as a borrowing under the Accounting Principles or to the extent payable more than 180 days after the period customarily allowed by the relevant supplier (save where payment is deferred because of a dispute with the supplier or because of contractual terms establishing payment schedules linked with contractual performance where the deferred payment does not represent normal trade credit and/or the results of operational testing and excluding earn outs and other contingent consideration arrangements);

 

(f) Capitalised Lease Obligations;

 

(g) any counter indemnity obligation in respect of a guarantee, indemnity, bond (excluding any performance bond or advance payment bond), standby or documentary or any other instrument (excluding any performance bond or advance payment bond or Trade Instrument) issued by a bank or financial institution (each, an instrument) provided that the underlying obligation in respect of which the instrument was issued would, under one or more of the other paragraphs of this definition, be treated as being Financial Indebtedness;

 

(h) amounts raised under any other transaction (not contemplated by the other paragraphs of this definition) which is classified as a borrowing under the Accounting Principles;

 

(i) any guarantee, indemnity or other legally binding obligation in respect of financial loss of any person in respect of any indebtedness falling within one or more of the other paragraphs of this definition;

 

(j) for the purposes of Clause 25.5 (Cross default) only, any Treasury Transaction (and, when calculating the value of that Treasury Transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that Treasury Transaction, that due amount) as at that time shall be taken into account); or

 

(k) shares which are expressed to be redeemable (otherwise than solely at the option of the issuer thereof) prior to the date falling six months after the Termination Date in respect of the Initial Term Facility,

 

but excluding all indebtedness for or in respect of pension or post-employment benefit related liabilities, indebtedness under any New Shareholder Injection or any indebtedness owing between the Group Members, unless and until such liability is due but unpaid for 90 days (and is not being disputed).

 

Financial Year has the meaning given to that term in Clause 23.1 (Financial definitions).

 

Financial Quarter means each period of three months ending on a Quarter Date.

 

First Currency has the meaning given to that term in Clause 18.1 (Currency indemnity).

 

  25
 

 

First Test Date means the date falling on the earlier of (i) the last day of the first Financial Year ending after 12 months from the Initial Utilisation Date of the Initial Term Facility; and (ii) 31 December 2021.

 

Founder means Mr. Jinbo Yao (姚劲波), holder of PRC identification card number 432321197610190959.

 

Funds Flow Statement means the statement showing the funds flow on the Initial Utilisation Date of each Initial Facility (including the borrowing and lending of money pursuant to this Agreement).

 

Future Acquisition Target means the target of any acquisition by a Group Member, being (a) the entity any shares or equity interests in which are being acquired by any Group Member pursuant to such acquisition or (b) the business which is being acquired by any Group Member pursuant to such acquisition.

 

Future Clean-up Acquisition has the meaning given to that term in Clause 25.18 (Clean-up period).

 

Future Clean-up Entities has the meaning given to that term in Clause 25.18 (Clean-up period).

 

General Reinvestment Basket has the meaning given to that term in the definition of Excluded Disposal Proceeds.

 

General Reinvestment Purposes has the meaning given to that term in paragraph (s) of the definition of Permitted Disposal.

 

Governmental Agency means any government or any governmental agency, semi- governmental or judicial entity or authority (including any stock exchange or any self- regulatory organisation established under statute).

 

Gross Outstandings means, in relation to a Multi-account Overdraft, the Ancillary Outstandings of that Multi-account Overdraft but calculated on the basis that the words “(net of any Available Credit Balance)" in paragraph (a) of the definition of Ancillary Outstandings were deleted.

 

Group means the Company and each of its Subsidiaries from time to time (each a Group Member).

 

Group Structure Chart means the group structure of the Group set out in Schedule 16 (Group Structure Chart) and assuming that the Closing Date has occurred.

 

Hedge Counterparty means any person which has become a Party as a Hedge Counterparty in accordance with Clause 26.9 (Accession of Hedge Counterparties), which is or has become a party to the Intercreditor Agreement as a Hedge Counterparty (as defined in the Intercreditor Agreement) in accordance with the provisions of the Intercreditor Agreement.

 

Hedging Agreement means any master agreement, confirmation, schedule or other agreement entered into or to be entered into by an Obligor under paragraph (a) of the definition of Permitted Treasury Transaction provided that, to the extent it is to be secured by any Transaction Security, such documents comply with the requirements in relation to hedging documents stipulated in the Intercreditor Agreement.

 

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.

 

  26
 

 

Hong Kong means the Special Administrative Region of Hong Kong.

 

IFRS means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.

 

Illegal Lender means a Lender whom the Company is or becomes obliged to repay or prepay pursuant to Clause 9.1 (Illegality).

 

Impaired Agent means the Agent at any time when:

 

(a) it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;

 

(b) the Agent otherwise rescinds or repudiates a Finance Document;

 

(c) (if the Agent is also a Lender) it is a Defaulting Lender under paragraph (a) of the definition of Defaulting Lender; or

 

(d) an Insolvency Event has occurred and is continuing with respect to the Agent,

 

unless in the case of paragraph (a) above:

 

(i) its failure to pay is caused by:

 

(A) administrative or technical error; or

 

(B) a Disruption Event, and

 

payment is made within five Business Days of its due date; or

 

(ii) the Agent is disputing in good faith whether it is contractually obliged to make the payment in question.

 

Increase Confirmation - Cancelled Commitments means a confirmation substantially in the form set out in Schedule 12 (Form of Increase Confirmation - Cancelled Commitments).

 

Increase Lender has the meaning given to that term in paragraph (a)(i) of Clause 2.2 (Increase - Cancelled Commitments).

 

Increased Costs has the meaning given to that term in paragraph (b) of Clause 17.1 (Increased Costs).

 

Increased Costs Lender means a Lender to whom the Company is required to pay Increased Costs under Clause 17 (Increased Costs), to make a tax gross-up under Clause 16.1 (Tax gross-up) or tax indemnity payment under Clause 16.2 (Tax indemnity).

 

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

 

Information has the meaning given to that term in Clause 21.11 (Information Package and Base Case Model).

 

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Information Barrier means, in relation to a Lender, a system of controls and monitoring (including, but not limited to, physical segregation of employees and restrictions on access to and flow of information) sufficient to ensure that:

 

(a) information relating to the Group and the Finance Documents (and related transactions) held by that Lender is not disclosed to any person who is or who is acting on behalf of either a Competitor or an investor or equity holder in a Competitor or who is engaged in any merger and acquisition or other advisory activity in relation to or on behalf of a Competitor; and

 

(b) information available to any team or employee of that Lender who is or who is acting on behalf of either a Competitor or an investor or equity holder in a Competitor or who is engaged in any merger and acquisition or other advisory activity in relation to a Competitor is not disclosed to any team or employee of that Lender acting in relation to the Group or the Finance Documents (and related transactions).

 

Information Package means the Reports.

 

Initial Default has the meaning given to that term in Clause 1.2 (Construction).

 

Initial Facilities means each of the Initial Term Facility, Cash Bridge Facility (Tranche A) and/or Cash Bridge Facility (Tranche B) (each an Initial Facility).

 

Initial Facility Loan means the Initial Term Facility Loan, the Cash Bridge Facility (Tranche A) Loan and/or the Cash Bridge Facility (Tranche B) Loan.

 

Initial Offshore Material Company means each Target Group Member which is a Material Company as at the Closing Date and is incorporated outside the PRC, as listed in Part V of Schedule 2 (Conditions Precedent and Conditions Subsequent).

 

Initial Onshore Material Company means each Target Group Member which is a Material Company as at the Closing Date and is incorporated in the PRC, as listed in Part VI of Schedule 2 (Conditions Precedent and Conditions Subsequent).

 

Initial Term Facility means the term loan facility made available under this Agreement as described in paragraph (a) of Clause 2.1 (The Initial Facilities).

 

Initial Term Facility Commitment means:

 

(a) in relation to an Original Initial Term Facility Lender, the amount in US$ set opposite its name under the heading Initial Term Facility Commitment in Schedule 1 (The Original Lenders) and the amount of any other Initial Term Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase - Cancelled Commitments) or Clause 2.3 (Additional Facility); and

 

(b) in relation to any other Initial Term Facility Lender, the amount in US$ of any Initial Term Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase - Cancelled Commitments) or Clause 2.3 (Additional Facility),

 

to the extent:

 

(i) not cancelled, reduced or transferred by it under this Agreement; and

 

(ii) not deemed to be zero pursuant to Clause 27.2 (Debt Purchase Transactions by Sponsor Affiliates).

 

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Initial Term Facility Lender means:

 

(a) any Original Initial Term Facility Lender; and

 

(b) any bank, financial institution, trust, fund or other entity which has become an Initial Term Facility Lender in accordance with Clause 2.2 (Increase - Cancelled Commitments), Clause 2.3 (Additional Facility) or Clause 26 (Changes to the Lenders),

 

which, in each case, has not ceased to be an Initial Term Facility Lender in accordance with this Agreement, and for which purposes the:

 

(i) termination in full of all of the Initial Term Facility Commitment(s) of any Initial Term Facility Lender; and

 

(ii) payment in full of all amounts which are payable to such Initial Term Facility Lender under the Finance Documents,

 

will result in that Initial Term Facility Lender ceasing to be regarded as an Initial Term Facility Lender for the purposes of and in relation to any provision of any of the Finance Documents requiring consultation with or the consent or approval of or instruction from all the Lenders, the Super Majority Lenders, the Majority Lenders and/or any class or group of Lenders.

 

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

 

Initial Utilisation Date means in relation to any Initial Facility, the date on which the first Loan under that Initial Facility is made or to be made.

 

Initial WFOE means each WFOE which is a Target Group Member as at the Closing Date, as listed in Part IV of Schedule 2 (Conditions Precedent and Conditions Subsequent).

 

Insolvency Event in relation to a Finance Party means that such Finance Party:

 

(a) is dissolved (other than pursuant to a consolidation, amalgamation or merger);

 

(b) becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;

 

(c) makes a general assignment, arrangement or composition with, or for the benefit of, its creditors;

 

(d) institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;

 

(e) has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:

 

  29
 

 

(i) results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or

 

(ii) is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;

 

(f) has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);

 

(g) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets;

 

(h) has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;

 

(i) causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (h) above; or

 

(j) takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.

 

Intellectual Property means:

 

(a) any patents, trademarks, service marks, designs, business names, copyrights, database rights, design rights, domain names, moral rights, inventions, confidential information, knowhow and other intellectual property rights and interests (which may now or in the future subsist), whether registered or unregistered; and

 

(b) the benefit of all applications and rights to use such assets of each Group Member (which may now or in the future subsist).

 

Intercreditor Agreement means the intercreditor agreement dated on or about the Signing Date between, among others, the Parent, the Company, the Debtors (as defined in the Intercreditor Agreement), the Agent, the Security Agent, the Lenders, the Arranger, the Ancillary Lenders, the Hedge Counterparties (each as defined in the Intercreditor Agreement) and the Intercompany Lenders (as defined in the Intercreditor Agreement).

 

Interest has the meaning given to that term in Clause 23.1 (Financial definitions).

 

Interest Payable has the meaning given to that term in Clause 23.1 (Financial definitions).

 

Interest Period means:

 

(a) in relation to a Loan, each period determined in accordance with Clause 13 (Interest Periods);

 

(b) in relation to an Additional Facility Loan (in respect of any Additional Facility), each period determined in accordance with the Additional Facility Notice relating to such Additional Facility; and

 

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(c) in relation to an Unpaid Sum, each period determined in accordance with Clause 12.3 (Default interest).

 

Interim Investor Agreement means the interim investors agreement dated 15 June 2020 amongst the Founder, the Sponsors, the Parent and the Company, as amended, restated, supplemented or otherwise modified from time to time.

 

Interpolated Screen Rate means, in relation to LIBOR for any Loan and any Interest Period relating thereto, the rate per annum (rounded upwards to the same number of decimal places as the two Screen Rates referred to in paragraphs (a) and (b) below) for the period that is equal in length to such Interest Period which results from interpolating on a linear basis between:

 

(a) the rate per annum that is equal to the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the length of such Interest Period; and

 

(b) the rate per annum that is equal to the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the length of such Interest Period,

 

each as of the Specified Time on the Quotation Day for US Dollars of that Loan and for such Interest Period.

 

Investor Affiliates means an Investor, any Affiliate of an Investor, any trust of which an Investor or any of its respective Affiliates is a trustee, any partnership of which an Investor or any of its Affiliates is a partner and any trust, fund or other entity which is managed by, or is under the control of, an Investor or any of its respective Affiliates (in each case, including their respective successors, assigns and transferees) provided that any such trust, fund or other entity which has been established for the purpose of making, purchasing or investing in loans or debt securities and which is managed or controlled independently from all other trusts, funds or other entities managed or controlled by an Investor or any of its respective Affiliates which have been established for the primary purpose or main purpose of investing in the share capital of companies, in each case, shall not constitute an Investor Affiliate.

 

Investors means the Sponsors, any Sponsor Affiliate, management, employees and any other person holding an interest in the Group pursuant to a management incentive plan, incentive scheme or similar arrangement, any co-investor agreed with the Agent and any other person approved by the Majority Lenders, in each case, including their respective successors, assigns and transferees.

 

IPO means the listing or admission to trading on any stock or securities exchange or market of any share or securities of the Company, or any other Group Member or any Holding Company of the Company that has been established for the purposes of holding the Investors’ investment in the Company (but excluding any Investor or Investor Affiliate or any holding company thereof, other than any direct or indirect Holding Company of the Company whose primary assets comprise a direct or indirect shareholding in the Company) (IPO Holding Company), or any sale or issue by way of listing, flotation or public offering (or any equivalent circumstances) of any shares or securities of the Company, any other Group Member or any IPO Holding Company, in any jurisdiction or country (the entity whose shares or securities are so listed, admitted to trading, sold or issued being the IPO Entity).

 

IPO Entity has the meaning given to that term in the definition of IPO.

 

IPO Holding Company has the meaning given to that term in the definition of IPO.

 

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Joint Venture means any joint venture entity, whether a company, unincorporated firm, undertaking, association, joint venture or partnership or any other entity.

 

Joint Venture Investment means, in respect of a Joint Venture:

 

(a) an amount subscribed for shares in, lent to, or invested in, that Joint Venture by any Group Member since the Closing Date;

 

(b) the continuing amount of a contingent liability of a Group Member under any outstanding guarantee given in respect of the liabilities of that Joint Venture; and

 

(c) an amount equal to the higher of the book value and the market value of assets transferred by any Group Member to that Joint Venture since the Closing Date,

 

(in each case without double-counting), provided that (i) for the avoidance of doubt, an amount will no longer be a Joint Venture Investment and deemed never to have been made on and from the date that the Joint Venture it relates to becomes a Group Member (and no longer a Joint Venture) and (ii) Joint Venture Investment in respect of any Joint Venture and any Financial Year shall mean (A) any such amount (falling within paragraph (a)) so subscribed for shares in, lent to or invested in that Joint Venture during that Financial Year, (B) the continuing amount of a contingent liability of a Group Member under any such outstanding guarantee (falling within paragraph (b)) granted during that Financial Year in respect of the liabilities of that Joint Venture and (C) any such amount (falling within paragraph (c)) in respect of assets transferred by any Group Member to that Joint Venture during that Financial Year, in each case without double-counting.

 

Knowledge means, in respect of an Obligor, the Parent or a Group Member, to the best of the knowledge and belief of the directors of such Obligor or, the Parent or such Group Member (as the case may be) (after due and careful enquiry).

 

Leakage Cap has the meaning set forth in Clause 10.5 (Trapped Amounts).

 

Leakages has the meaning set forth in Clause 10.5 (Trapped Amounts).

 

Legal Opinion means any legal opinion delivered to the Agent under Clause 4.1 (Initial conditions precedent) or Clause 28 (Changes to the Obligors).

 

Legal Reservations means:

 

(a) the principle that certain (including equitable) remedies may be granted or refused at the discretion of a court, the principle of reasonableness and fairness where implied by law and the limitation of enforcement by laws relating to bankruptcy, insolvency, reorganisation, court schemes, administration, moratoria and other laws generally affecting the rights of creditors;

 

(b) the time barring of claims under applicable statutes of limitation (or equivalent legislation), the possibility that an undertaking to assume liability for or indemnify a person against non-payment of stamp duty may be void and defences of acquiescence, set off or counterclaim;

 

(c) similar principles, rights and defences in respect of the enforceability of a contract, agreement or undertaking under the laws of any Relevant Jurisdiction;

 

(d) the principle that in certain circumstances Security granted by way of fixed charge may be recharacterised as a floating charge or that Security purported to be constituted as an assignment may be recharacterised as a charge;

 

  32
 

 

(e) the principle that additional interest imposed pursuant to any relevant agreement may be held to be unenforceable on the grounds that it is a penalty and thus void;

 

(f) the principle that a court may not give effect to an indemnity for legal costs incurred by an unsuccessful litigant;

 

(g) the principle that the creation or purported creation of Security over any contract or agreement which is subject to a prohibition on transfer, assignment or charging may be void, ineffective or invalid and may give rise to a breach of the contract or agreement over which Security has purportedly been created; and

 

(h) any other matters which are set out as qualifications or reservations as to matters of law of general application and which are set out in the Legal Opinions (as if references therein to any document to which such Legal Opinions apply were references to any document to which any representation or warranty under any Finance Document (which is qualified by the Legal Reservations) relates).

 

Lender means:

 

(a) any Original Lender; and

 

(b) any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 2.2 (Increase - Cancelled Commitments), or Clause 2.3 (Additional Facility) or Clause 26 (Changes to the Lenders),

 

which, in each case, has not ceased to be a Lender in accordance with this Agreement, and for which purposes the:

 

(i) termination in full of all of the Commitment(s) of any Lender; and

 

(ii) payment in full of all amounts which are payable to such Lender under the Finance Documents,

 

will result in that Lender ceasing to be regarded as a Lender for the purposes of and in relation to any provision of any of the Finance Documents requiring consultation with or the consent or approval of or instruction from all the Lenders, the Super Majority Lenders, the Majority Lenders and/or any class or group of Lenders.

 

Leverage has the meaning given to that term in Clause 23.1 (Financial definitions).

 

Liabilities Acquisition has the meaning given to that term in the Intercreditor Agreement.

 

LIBOR means, in relation to any Loan and any Interest Period relating thereto, the rate equal to:

 

(a) the applicable Screen Rate as of the Specified Time on the Quotation Day for the currency of such Loan and for a period equal in length to such Interest Period;

 

(b) (if no Screen Rate is available for the currency of such Loan and a period equal in length to such Interest Period) the Interpolated Screen Rate for such Loan and such Interest Period; or

 

(c) (if (i) no Screen Rate is available for the currency of such Loan and a period equal in length to such Interest Period and (ii) it is not possible to calculate the Interpolated Screen Rate for such Loan and such Interest Period) the Reference Bank Rate as of the Specified Time on the Quotation Day for the currency of such Loan and for a period equal in length to such Interest Period,

 

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provided that if that rate is less than zero, LIBOR for such Loan and such Interest Period shall be deemed to be zero.

 

LMA means the Loan Market Association.

 

Loan means the Initial Term Facility Loan, Cash Bridge Facility (Tranche A) Loan, Cash Bridge Facility (Tranche B) Loan or an Additional Facility Loan provided that:

 

(a) any reference to "Loan" in relation to the Initial Term Facility shall be a reference to the Initial Term Facility Loan;

 

(b) any reference to "Loan" in relation to the Cash Bridge Facility (Tranche A) shall be a reference to the Cash Bridge Facility (Tranche A) Loan;

 

(c) any reference to "Loan" in relation to the Cash Bridge Facility (Tranche B) shall be a reference to the Cash Bridge Facility (Tranche B) Loan; and

 

(d) any reference to "Loan" in relation to an Additional Facility shall be a reference to an Additional Facility Loan in respect of that Additional Facility.

 

Local Prepayment Account has the meaning given to that term in paragraph (b) of Clause 24.34 (Prepayment Account).

 

London Business Day means a day (other than a Saturday or Sunday) on which commercial banks are open for general business including dealings in interbank deposits in London.

 

Major Default means any Event of Default (only insofar as it relates to the Parent and the Company only (and without any application (including by way of procurement obligation) in respect of the Target or any member of the Target Group)) under any of Clause 25.1 (Non-payment), Clause 25.3 (Other obligations) (only insofar as it relates to a Major Undertaking), Clause 25.4 (Misrepresentation) (only insofar as it relates to a Major Representation), Clause 25.6 (Insolvency), Clause 25.7 (Insolvency proceedings), Clause 25.8 (Creditors' process), Clause 25.9 (Unlawfulness and invalidity) and Clause 25.14 (Repudiation and rescission of agreements).

 

Major Event of Default means an Event of Default under any of Clause 25.1 (Non-payment), Clause 25.2 (Financial covenants), Clause 25.6 (Insolvency), Clause 25.7 (Insolvency proceedings) or Clause 25.8 (Creditors' process).

 

Major Representation means a representation or warranty given under any of Clause 21.2 (Status) to Clause 21.6 (Authorisations) (inclusive), Clause 21.19 (Legal and beneficial ownership), Clause 21.20 (Shares) (only insofar as it relates to the shares in the Company are fully paid up and are not subject to restrictions on transfer) and Clause 21.25 (Holding Companies).

 

Major Undertaking means an undertaking described in Clause 24.5 (Merger), Clause 24.7 (Acquisitions), Clause 24.8 (Joint ventures), Clause 24.9 (Holding Companies), Clause 24.13 (Negative pledge), Clause 24.14 (Disposals), Clause 24.16 (Loans or credit), Clause 24.17 (No guarantees or indemnities), Clause 24.18 (Dividends, share redemption and other restricted payments), Clause 24.19 (Financial Indebtedness) and Clause 24.12 (Merger Documents).

 

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Majority Facility Lenders means in respect of any Facility, a Lender or Lenders whose Commitment(s) in respect of such Facility aggregate more than 66⅔ per cent. of the aggregate Commitments of the Lenders in respect of such Facility (or, if the aggregate Commitments of the Lenders in respect of such Facility have been reduced to zero, aggregated more than 66⅔ per cent. of the aggregate Commitments of the Lenders in respect of such Facility immediately prior to the reduction of such aggregate Commitments in respect of such Facility to zero).

 

Majority Lenders means a Lender or Lenders whose Commitments aggregate more than 66⅔ per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 66⅔ per cent. of the Total Commitments immediately prior to the reduction of the Total Commitments to zero).

 

Management Fees has the meaning given to that term in the definition of Permitted Payment.

 

Margin means:

 

(a) in relation to any Initial Term Facility Loan, 1.70% per annum;

 

(b) in relation to any Cash Bridge Facility (Tranche A) Loan, 1.30% per annum;

 

(c) in relation to any Cash Bridge Facility (Tranche B) Loan with Base Currency in US$, 1.80% per annum; and

 

(d) in relation to any Additional Facility Loan or any Unpaid Sum in relation to such Additional Facility Loan the percentage rate per annum specified by the Company in the relevant Additional Facility Notice.

 

Market Disruption Event has the meaning given to that term in paragraph (b) of Clause 14.2 (Market disruption).

 

Material Adverse Effect means a material adverse effect (after taking into account all resources, insurance, indemnity and assurance available to the Group and the timing and likelihood of recovery) on:

 

(a) the consolidated business, assets or financial condition of the Group (taken as a whole); or

 

(b) the ability of the Company to perform its payment obligations under any Finance Document; or

 

(c) (subject to the applicable Legal Reservations and Perfection Requirements) the validity or the enforceability of any of the Finance Documents (in each case, in accordance with its terms) or the effectiveness of any Transaction Security granted pursuant to any of the Finance Documents in a manner which would be materially adverse to the interests of the relevant Finance Parties under the Finance Documents taken as a whole, provided that, in each case under this paragraph (c), if capable of remedy, the applicable event or circumstance giving rise to such material adverse effect is not remedied within 30 Business Days of the Company first becoming aware of such event or circumstance or being given notice of such event or circumstance by the Agent.

 

Material Company means:

 

(a) each Initial WFOE; and

 

(b) (at any time on or after the Closing Date) any other Group Member (whether or direct or indirect Subsidiary of the Company) whose earnings before interest, tax, depreciation and amortisation (in each case calculated on the same basis as EBITDA but excluding intra-group items and investments in Subsidiaries) represents more than 5% of the consolidated EBITDA of the Group (which shall, in each case, be tested annually by reference to the Annual Financial Statements),

 

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provided that no Group Member which is a Joint Venture will be a Material Company. Compliance with the condition set out in paragraph (b) above in relation to a Group Member shall be determined by reference to the latest audited annual financial statements of that Group Member (consolidated in the case of a Group Member which itself has Subsidiaries) (if available and otherwise by reference to the latest available annual financial statements), the latest Annual Financial Statements and any Compliance Certificate supplied by the Company with those Annual Financial Statements (or, prior to the delivery of the first set of Annual Financial Statements to the Agent, the Original Financial Statements, as if the Original Financial Statements constituted Annual Financial Statements and as if the Closing Date had occurred at the commencement of the period to which the Original Financial Statements relate). However, if a person becomes a Group Member since the date as at which the latest Annual Financial Statements (or, as the case may be, the Original Financial Statements) were prepared, such financial statements shall, for such purposes, be deemed to be adjusted in order to take into account such person’s becoming a Group Member (that adjustment being certified by the Company as representing an accurate reflection of the revised gross assets or revenue of the Group) as if such person had become a Group Member as at the commencement of the period to which such financial statements relate. A report by the Auditors of the Company that a Group Member is or is not a Material Company shall, in the absence of manifest error, be conclusive and binding on all Parties.

 

Merger means the merger of the Company and the Target on the terms of which the Target shall be the surviving company in accordance with Part XVI of the Companies Law (2020 Revision) of the Cayman Islands and upon the terms and subject to the conditions of the Merger Agreement.

 

Merger Agreement means the agreement and plan of merger dated 15 June 2020 amongst the Parent, the Company and the Target, as amended, restated, supplemented or otherwise modified from time to time.

 

Merger Costs means any fees, costs (including any hedging costs), expenses and stamp, registration and other Taxes incurred, or any amortisation thereof, in connection with the Merger or the Transaction Documents or any liabilities arising under the Merger Documents.

 

Merger Documents means:

 

(a) the Merger Agreement;

 

(b) the support agreement dated 15 June 2020 among the Founder, Nihao China Corporation and General Atlantic Singapore 58 Pte. Ltd. (the Supporting Shareholders) and the Parent which provides, among other things, the contribution of Target shares by the Supporting Shareholders to the Parent or any direct holding company of the Parent in exchange for shares of the Parent to be issued to the Supporting Shareholders (and/or their respective Affiliates) immediately before the Closing Date (the Support Agreement); and

 

(c) any other documents designated as such by the Company and the Agent (including any disclosure letter).

 

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:

 

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(a) (subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;

 

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

 

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

 

The rules in paragraphs (a) to (c) above will only apply to the last Month of any period.

 

Most Recent Leverage means, at any time, the Leverage for Most Recent Relevant Period as at such time.

 

Most Recent Relevant Period means, as at any date, the most recently elapsed Relevant Period in respect of which the Annual Financial Statements for a period ending on the last day of such Relevant Period and the accompanying Compliance Certificate have been delivered to the Agent in accordance with Clauses 22.1 (Financial statements) and 22.2 (Provision and contents of Compliance Certificate) provided that if such date falls prior to the date on which the first set of the Annual Financial Statements and the accompanying Compliance Certificate shall have been delivered to the Agent in accordance with Clauses 22.1 (Financial statements) and 22.2 (Provision and contents of Compliance Certificate), then (a) the Most Recent Relevant Period as at such date shall be deemed to be the Relevant Period ending on the date as at which the Original Financial Statements are prepared, (b) the Annual Financial Statements for such Most Recent Relevant Period shall be deemed to be the Original Financial Statements (and the Closing Date shall be deemed to have occurred as at the commencement of such Most Recent Relevant Period), and (c) the requirements under Clause 23.2 (Financial condition) applicable to the Relevant Period ending on the First Test Date shall be deemed to apply to such Most Recent Relevant Period for the purposes of any pro forma calculation of any of the requirements under Clauses 23.2 (Financial condition) and 23.3 (Financial testing).

 

Multi-account Overdraft means an Ancillary Facility which is an overdraft facility comprising more than one account.

 

Net Interest Payable has the meaning given to that term in Clause 23.1 (Financial definitions).

 

Net Outstandings means, in relation to a Multi-account Overdraft, the Ancillary Outstandings of that Multi-account Overdraft.

 

Net Proceeds means the cash proceeds received or recovered by a Group Member (and if that Group Member is not the Company or a direct or indirect wholly-owned Subsidiary of the Company, a percentage of such cash proceeds which is equal to the percentage interest (direct or indirect) held by the Company in that Group Member) of any Disposal after deducting:

 

(a) fees, costs and expenses incurred by any Group Member with respect to that Disposal, to persons who are not Group Members (including the disposed business or entity);

 

(b) any Tax incurred and required to be paid or reserved for by any Group Member or seller in connection with that Disposal (as reasonably determined by the relevant Group Member or seller and taking into account any available credit or relief) or the transfer of the proceeds thereof intra-Group for the purpose of making any prepayment of any of the Facilities from such proceeds;

 

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(c) amounts retained to cover anticipated liabilities reasonably expected to arise in connection with that Disposal in the 18 Months immediately following the date of such Disposal provided that where such anticipated liabilities do not materialise in that 18 Month period, those amounts retained shall, upon the expiry of that 18 Month period, be deemed to be Net Proceeds;

 

(d) costs of closure, relocation, reorganisation and restructuring, and costs incurred preparing any asset for such Disposal as certified by the Company as being reasonably incurred in connection with such Disposal and payable to a person who is not a Group Member;

 

(e) the amount of any repayment of Financial Indebtedness or amounts owed to joint venture partners in Permitted Joint Ventures as a consequence of any such Disposal;

 

(f) amounts to be repaid to any entity disposed of (or any Subsidiary thereof) in respect of intra-Group indebtedness; and

 

(g) third party debt secured on any assets disposed of (or secured on any assets of any entity disposed of or any of its Subsidiaries) which is to be repaid out of those proceeds.

 

New Lender has the meaning given to that term in Clause 26.1 (Transfers by the Lenders).

 

Non-Obligor means a Group Member which is not an Obligor.

 

New Offshore Material Company has the meaning given to that term in Clause 24.29 (Conditions subsequent).

 

New Onshore Material Company has the meaning given to that term in Clause 24.29 (Conditions subsequent).

 

New Shareholder Injections has the meaning given to that term in Clause 23.1 (Financial definitions).

 

Non-Base Currency Commitments has the meaning given to that term in Clause 1.2 (Construction).

 

Non-Commercial Lender means any hedge fund, loan-to-own fund, private equity fund, debt restructuring fund or activist fund but, for the purpose of this definition, excluding any Sponsor Affiliate.

 

Non-Consenting Lender means any Lender which does not consent to any decision requiring a waiver or amendment or other consent requested in respect of any of the Facilities, if:

 

(a) the Company, through the Agent, has requested that consent, waiver or amendment in relation to any Finance Document; and

 

(b) the Majority Lenders have agreed to that consent, waiver or amendment.

 

Non-Market Lender means any Lender whose Commitment is being included to trigger a Market Disruption Event pursuant to paragraph (B) of the definition of that term.

 

Non-Responding Lender means any Lender that fails to:

 

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(a) accept or reject a request by or on behalf of any of the Obligors for any waiver, amendment or other consent requested in relation to any of the Facilities within 20 Business Days (or any other period of time specified by the Company with the prior agreement of the Agent (acting on the instructions of all the Lenders) if less than 20 Business Days) of a written request made in accordance with Clause 34 (Notices); or

 

(b) sign a Transfer Certificate within 10 Business Days of any request pursuant to paragraph (a) of Clause 38.5 (Replaceable Lender).

 

Notifiable Debt Purchase Transaction has the meaning given to that term in paragraph (b) of Clause 27.2 (Debt Purchase Transactions by Sponsor Affiliates).

 

Obligor means the Company or an Additional Obligor (and for the avoidance of doubt, shall exclude the Parent at all times).

 

Obligors’ Agent means the Company, appointed to act on behalf of each Obligor and the Parent in relation to the Finance Documents pursuant to Clause 2.5 (Obligors' Agent).

 

Offshore Account Bank means any of the Arrangers or its Affiliates.

 

Offshore Group Member means a Group Member which is not an Onshore Group Member.

 

Offshore Material Company means an Initial Offshore Material Company or a New Offshore Material Company.

 

Onshore Account Bank means any of the Arrangers or its Affiliates.

 

Onshore Group Member means a Group Member which is incorporated in the PRC.

 

Open Order has the meaning given to that term in Clause 27.1 (Debt Purchase Transactions by Group Members).

 

Open Order Process has the meaning given to that term in Clause 27.1 (Debt Purchase Transactions by Group Members).

 

Optional Currency means a currency (other than the Base Currency) which complies with the conditions set out in Clause 4.4 (Conditions relating to Optional Currencies).

 

Original Facility has the meaning given to that term in Clause 2.3 (Additional Facility).

 

Original Financial Statements means a copy of the audited consolidated annual financial statements of the Target Group for the financial year ending on 31 December 2019.

 

Original Initial Term Facility Lender means a Lender listed in Schedule 1 (The Original Lenders) as having an Initial Term Facility Commitment.

 

Original Jurisdiction means, in relation to the Company or the Parent, the jurisdiction under whose laws the Company or the Parent is incorporated as at the Signing Date or, in the case of any other Obligor which becomes an Obligor after the Signing Date, the jurisdiction under whose laws that Obligor is incorporated as at the date on which that Obligor becomes a party to this Agreement.

 

Original Lender means a Lender listed in Schedule 1 (The Original Lenders) as having an Initial Term Facility Commitment, Cash Bridge Facility (Tranche A) Commitment and/or Cash Bridge Facility (Tranche B) Commitment.

 

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Original Security Documents means each of the documents listed as being an Original Security Document in Part III (Original Security Documents) of Schedule 2 (Conditions Precedent and Conditions Subsequent).

 

Parent Liabilities has the meaning given to that term in the Intercreditor Agreement.

 

Parent Loan Document means any document or intercompany account pursuant to which any loan is owing from the Company to the Parent.

 

Participating Lender has the meaning given to that term in Clause 38.4 (Structural Adjustment).

 

Participation means a Debt Purchase Transaction other than a purchase falling within paragraph (a) of the definition thereof.

 

Party means a party to this Agreement.

 

Paying Party has the meaning given to that term in Clause 32.5 (Impaired Agent).

 

Perfection Requirements means the making of the appropriate registrations, filings, endorsements, notarisation, stamping, notifications or other actions or steps to be made in any jurisdiction in order to perfect Security created by a Transaction Security Document and/or in order to achieve the relevant priority for the Security created thereunder.

 

Permitted Acquisition means:

 

(a) the Merger;

 

(b) an acquisition under and pursuant to the terms of any agreement or commitment entered into by a Target Group Member on or prior to the Closing Date (being limited to those set out in the Structure Memorandum, and any others not procured or approved by the Company or the Parent in contemplation of this restriction);

 

(c) an acquisition which constitutes, is part of or arising from a Permitted Disposal, a Permitted Loan (to the extent such Permitted Loan is constituted by a loan or debt securities convertible into or exchangeable with the equity securities of an entity), a Permitted Share Issue, a Permitted Reorganisation or a Permitted Transaction;

 

(d) an acquisition of securities which are Cash Equivalent Investments;

 

(e) any acquisition of ownership interests in a Group Member and the acquisition of ownership interests in a Permitted Joint Venture which are not, in each case, already owned by a Group Member provided that:

 

(i) any Financial Indebtedness incurred to finance investment in such ownership interests is Permitted Financial Indebtedness;

 

(ii) promptly after the date of any Group Member’s entry into a legally binding commitment to make such investment, the Company certifies that (to the Company’s Knowledge) if the Leverage referred to in Clause 23.2 (Financial condition) were re-calculated for the Most Recent Relevant Period on a pro forma basis (taking into account, any cost savings and synergies cost savings and synergies (calculated on the same basis as Adjusted EBITDA)) and as if the consideration for such investment had been paid and the Financial Indebtedness incurred or to be incurred in connection with such investment had been utilised at the start of that Most Recent Relevant Period, it would have complied with the requirements of Clause 23.2 (Financial condition) for that Most Recent Relevant Period (provided that if such legal commitment to make such investment is entered into prior to the First Test Date, the maximum Leverage for that Most Recent Relevant Period shall be deemed to be the maximum Leverage permitted under Clause 23.2 (Financial condition) as at the First Test Date);

 

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(f) the acquisition by a Group Member of the entire issued share capital of a company with limited liability (including by way of formation) which has not traded and has no assets or any liabilities prior to the date of such acquisition;

 

(g) an acquisition constituting a Permitted Joint Venture Investment;

 

(h) a Permitted Business Acquisition;

 

(i) any acquisition by a Group Member of any assets (but not shares or a business or undertaking) that constitutes Capital Expenditure that is not restricted by a Finance Document;

 

(j) the reacquisition by a Group Member of any asset previously owned by any Group Member upon the termination of a Finance Lease that is Permitted Financial Indebtedness;

 

(k) any acquisition by a Future Acquisition Target (that is the subject of any Permitted Business Acquisition and that was not a Group Member prior to such Permitted Business Acquisition but becomes a Group Member pursuant to such Permitted Business Acquisition) or any Subsidiary thereof under and pursuant to the terms of any agreement or commitment existing at completion of that Permitted Business Acquisition (provided such agreement or commitment has not been entered into in contemplation of this restriction); and

 

(l) any acquisition by the Parent of shares in the Company as contemplated under paragraph (j) of the definition of Permitted Share Issue.

 

Permitted Additional Debt means Financial Indebtedness incurred or established by any Offshore Material Company:

 

(a) by way of an Additional Facility;

 

(b) by way of one or more additional term or revolving facilities incurred or established outside of this Agreement; or

 

(c) by way of bonds or notes (or any other financing or debt arrangement),

 

provided that (unless otherwise agreed by the Majority Lenders) each of the following applicable conditions are met:

 

(i) the purposes of such Financial Indebtedness shall be limited to Permitted Acquisitions, Capital Expenditure, working capital and/or general corporate purposes (other than funding any Permitted Payments);

 

(ii) the final maturity date of a Permitted Additional Debt shall be no earlier than the Termination Date in respect of the Initial Term Facility;

 

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(iii) if the repayment profile of such Financial Indebtedness (which is a term facility in nature) is a bullet repayment profile, the maturity date for such Financial Indebtedness must fall on or after the Termination Date in respect of the Initial Term Facility or if it is an amortising repayment profile, (x) the weighted average life of such Permitted Additional Debt shall not be shorter than the remaining weighted average life of the Initial Term Facility or (y) the Lenders of the Initial Term Facility are offered the same amortisation percentage per annum as the proposed amortising Permitted Additional Debt (if shorter than the amortisation percentage per annum of the Initial Term Facility);

 

(iv) such Financial Indebtedness ranks pari passu with the Initial Term Facility and shall be secured by the same (or less) Security as is securing the Initial Term Facility (other than, in each case, any Credit-Specific Transaction Security) and shall be on terms no more onerous for the Group than the Initial Term Facility or otherwise on terms satisfactory to the Agent (acting on the instructions of the Majority Lenders (acting reasonably));

 

(v) such Financial Indebtedness shall be on terms no more onerous for the Group (as determined by the board of directors of the Company acting in good faith) than the Initial Term Facility or otherwise on terms satisfactory to the Agent (acting on the instructions of the Majority Lenders (acting reasonably));

 

(vi) the Leverage for the Most Recent Relevant Period as at which such proposed Permitted Additional Debt is incurred (recalculated on a pro forma basis, giving effect to (x) the incurrence and utilisation of any Permitted Additional Debt and any Initial Facility that occurs after the last day of such Most Recent Relevant Period but on or before the date on which such proposed Permitted Additional Debt is incurred and (y) such incurrence and full utilisation of such proposed Permitted Additional Debt) would be equal to or less than the Leverage for that Most Recent Relevant Period under Clause 23.2 (Financial condition) provided that if such proposed Permitted Additional Debt is incurred prior to the First Test Date, the maximum Leverage for that Most Recent Relevant Period shall be deemed to be the maximum Leverage permitted under Clause 23.2 (Financial condition) as at the First Test Date; and

 

(vii) no Event of Default is continuing at the time the relevant Financial Indebtedness is committed (or would result therefrom).

 

Permitted Basket has the meaning given to that term in Clause 1.6 (Basket Increases).

 

Permitted Business Acquisition means an acquisition by any Group Member(s) of any Future Acquisition Target, if:

 

(a) subject to Clause 25.18 (Clean-up period), no Event of Default is continuing or would occur as a result of completion of such acquisition on the date of any Group Member's entry into of a legally binding commitment to make such acquisition (the Acquisition Commitment Date) by reference to the facts and circumstances known to the Group as at the date of entry into of such commitment;

 

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(b) promptly after any Acquisition Commitment Date, the Company notifies the Agent of such pending acquisition and certifies that (to the Company's Knowledge) if the Leverage referred to in Clause 23.2 (Financial condition) were re-calculated consolidating the financial statements of the Future Acquisition Target for the Most Recent Relevant Period (as at the Acquisition Commitment Date of that acquisition) with the Annual Financial Statements (construed in accordance with the definition of Most Recent Relevant Period) relevant to that Most Recent Relevant Period on a pro forma basis (taking into account any cost savings and synergies (calculated on the same basis as Adjusted EBITDA)) and as if the consideration for such acquisition had been paid and the Financial Indebtedness incurred or to be incurred in connection with such acquisition had been utilised at the last day of that Most Recent Relevant Period, it would have complied with the requirements of Clause 23.2 (Financial condition) for that Most Recent Relevant Period provided that if the Acquisition Commitment Date of that acquisition is prior to the First Test Date, the maximum Leverage for that Most Recent Relevant Period shall be deemed to be the maximum Leverage permitted under Clause 23.2 (Financial condition) as at the First Test Date;

 

(c) that Future Acquisition Target and (if it has any Subsidiaries) its Subsidiaries, taken as a whole, carry on a principal business which falls within the general nature of the principal business carried on by the Group or is similar to, complementary to, compatible with or related to, the Core Business or is reasonably related, synergistic, incidental or ancillary to, the Core Business; and

 

(d) any Financial Indebtedness incurred to finance such acquisition is Permitted Financial Indebtedness.

 

Permitted Cash Pooling means any cash pooling, netting or set-off arrangement entered into by any Obligor or Group Member in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances of Obligor(s) and/or Group Member(s) (including an overdraft comprising more than one account).

 

Permitted Collateralised Hedging Transaction means any foreign exchange or interest rate hedging transaction(s) entered into by any Offshore Group Member for the purposes of hedging (in the case of foreign exchange hedging) any currency exposure (between US$ and RMB) of a Group Member relating to any Permitted Collateralised Indebtedness or (in the case of interest rate hedging) any interest rate exposure of a Group Member relating to any Permitted Collateralised Indebtedness, provided that (in each case):

 

(a) the aggregate notional amount of any and all such hedging transaction(s) does not exceed (or its equivalent in the applicable currency does not at any time exceed) 100 per cent. of the aggregate principal amount of all Permitted Collateralised Indebtedness;

 

(b) at all times, the terms of such hedging are substantially based on, and are not more onerous to that Offshore Group Member or any other Group Member in any material respect than those in, the 1992 ISDA Master Agreement or the 2002 ISDA Master Agreement; and

 

(c) the scheduled termination date for any and all such hedging falls on or prior to the scheduled maturity date for the Permitted Collateralised Indebtedness to which such hedging relates.

 

Permitted Collateralised Indebtedness means any Financial Indebtedness incurred by any Offshore Group Member:

 

(a) which Financial Indebtedness is collateralised by one or more standby letters of credit (an SBLC) (or its equivalent) issued by a bank or financial institution in the PRC (an SBLC Bank) at the request of an Onshore Group Member which letter(s) of credit (or equivalent) are in an aggregate amount not exceeding the amount of the Cash Pledge (as defined below) and which letter(s) of credit (or equivalent) are secured by a Cash Pledge (collectively the SBLC Arrangements); or

 

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(b) which Financial Indebtedness is itself secured by a Cash Pledge,

 

provided that:

 

(i) the relevant Onshore Group Member has deposited cash with:

 

(A) (in the case of paragraph (a) above) the SBLC Bank, to secure its counter-indemnity obligations in respect of the SBLC, the aggregate amount of which cash deposit does not exceed the aggregate principal amount of such Financial Indebtedness incurred by that Offshore Group Member, plus reasonable costs and interest thereon for the duration of such SBLC Arrangements; or

 

(B) (in the case of paragraph (b) above) the lender of such Financial Indebtedness or its Affiliate, the aggregate amount of which cash deposit does not exceed the aggregate principal amount of such Financial Indebtedness incurred by that Offshore Group Member, plus reasonable costs and interest thereon for the duration of such Financial Indebtedness,

 

(such cash deposit being the Cash Pledge);

 

(ii) such Financial Indebtedness (and, in the case of paragraph (a) above, the SBLC) shall not have the benefit of any guarantee or Security from any Group Member (other than the SBLC (in the case of paragraph (a) above), the Cash Pledge (in the case of paragraph (b) above) and any Security or Quasi-Security created by such Offshore Group Member over its rights and interests under any Permitted Collateralised Hedging Transaction relating to such Financial Indebtedness (the Permitted Hedging Security));

 

(iii) no Major Event of Default is continuing or would arise as a result of the incurrence of such Financial Indebtedness; and

 

(iv) the proceeds of such Financial Indebtedness are applied to repay or prepay the Facilities or to fund the payment of interest, costs and expenses in respect of the Facilities.

 

Permitted Disposal means a Disposal:

 

(a) of assets in the ordinary course of day to day business of the disposing entity;

 

(b) of any asset by a Group Member or an Obligor (the Disposing Company) to a Group Member (the Acquiring Company), but if the Disposing Company is an Obligor, either:

 

(i) the Acquiring Company must be an Obligor; or

 

(ii) the aggregate consideration for such Disposal does not exceed US$30,000,000 (or its equivalent) at any time;

 

(c) of assets in exchange for, replacement for or investment in other assets (which are of a comparable or superior type, value or quality) which are used in the operation of the business of the Group and which are, subject to the Security Principles, subject to Transaction Security if the assets that they have been exchanged for were subject to Transaction Security;

 

(d) of assets which are obsolete, redundant or no longer required for the business or operations of the Group for cash;

 

(e) of cash or Cash Equivalent Investments (including by way of realisation) which is not specifically prohibited by the terms of the Finance Documents;

 

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(f) constituting a Permitted Joint Venture Investment or arising as a result of any Permitted Security (other than paragraph (g) of the definition of Permitted Security to the extent that it relates to any Permitted Disposal) or which constitutes, is part of, or is made under or is necessary to implement, a Permitted Transaction, Permitted Payment or Permitted Share Issue or is otherwise expressly permitted elsewhere in a Finance Document;

 

(g) of receivables (or of any contracts, guarantees or other obligations in respect of such receivables and other related assets customarily transferred in connection with such Disposal of receivables) (including those which are overdue or delinquent accounts receivables in connection with the collection or compromise of the unpaid accounts relating to those receivables) on arm’s length terms for cash either:

 

(i) on a non-recourse (as regards the ability of the account debtors of the relevant receivables to pay) basis; or

 

(ii) on a recourse basis to the extent constituting, part of or made under a Permitted Receivables Financing;

 

(h) that is constituted by any collection of trade receivables in the ordinary course of day to day business by way of receipt of any note or other instrument evidencing the indebtedness constituted by such receivable, and a transfer/presentation of such note or instrument by a bank or financial institution in exchange for a cash payment;

 

(i) under Finance Leases, hire purchase, conditional sale and other similar arrangements, which are otherwise permitted by the Finance Documents;

 

(j) constituting a licence, lease, sub-licence or sub-lease of real property or a licence of intellectual property rights, in each case in the ordinary course of business;

 

(k) any Permitted Sale and Leaseback;

 

(l) required by law or regulation or any order of any government entity made thereunder (including any seizure, expropriation or compulsory purchase of any asset or any shares or equity interests in any Group Member by (or by the order of) any Governmental Agency, provided that such seizure, expropriation or compulsory purchase does not result from any default or breach by any Obligor, the Parent or any Group Member);

 

(m) under and pursuant to the terms of any agreement or commitment entered into by a Target Group Member on or prior to the Closing Date (being limited to those set out in the Structure Memorandum and not entered into in contemplation of this restriction);

 

(n) by a Future Acquisition Target (that is the subject of any Permitted Business Acquisition and that was not a Group Member prior to such Permitted Business Acquisition but becomes a Group Member pursuant to such Permitted Business Acquisition) or any Subsidiary thereof under and pursuant to the terms of any agreement existing at completion of that Permitted Business Acquisition;

 

(o) of rights relating to Treasury Transactions, constituted by any termination or close-out of such Treasury Transaction (provided that, in the case of any Treasury Transaction under any Hedging Agreement, such termination is permitted under the Intercreditor Agreement);

 

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(p) of treasury shares (or shares otherwise already held by a Group Member) in any Group Member in connection with share incentive schemes;

 

(q) constituting, or that is part of or made under, a Permitted Transaction;

 

(r) of shares or equity interests in a Group Member (other than the Company a WFOE or a Material Company) on arm's length terms or better provided that the relevant Group Member continues to be a Group Member;

 

(s) of any asset (other than any Core Asset, shares of a Group Member or Material IP) on normal commercial terms where the proceeds are applied or committed or designated to be applied in reinvestment in the business of the Group, (A) to fund purchase of other assets to be used in the business of the Group; or (B) for financing Capital Expenditure (or refinancing Capital Expenditure incurred in the 12 Months immediately following the receipt of the Net Proceeds of such Disposal by a Group Member); or (C) for financing a Permitted Acquisition or a Permitted Joint Venture Investment (or refinancing a Permitted Acquisition or a Permitted Joint Venture Investment incurred in the 12 Months immediately following the receipt of the Net Proceeds of such Disposal by a Group Member) (the purposes described in the foregoing items (A), (B) and (C) being the Capital Reinvestment Purposes); or (D) otherwise for any working capital or general corporate purposes of the Group (the purposes described in the foregoing item (D) being the General Reinvestment Purposes), in each case within 12 Months of when those proceeds are received by the applicable Group Member (and, if a binding reinvestment commitment is entered into (or a reinvestment plan is formulated) or reinvestment is designated by the board of the relevant Group Member in that period, are actually applied within 18 Months of receipt by the applicable Group Member) (such period being the Reinvestment Period) or are, on or prior to the expiry of the applicable Reinvestment Period, applied in prepayment of the Initial Term Facility, Permitted Additional Debt, Permitted PRC Indebtedness or Refinancing Indebtedness, provided that such proceeds shall be allocated between the Initial Term Facility and such other Financial Indebtedness on a pro rata basis) in accordance with Clause 10.2 (Disposal Proceeds) and the Intercreditor Agreement; and

 

(t) of any asset (other than any Core Asset) for cash where the Net Proceeds of that Disposal (when aggregated with the Net Proceeds receivable for any other Disposal not allowed under the preceding paragraphs and not constituting a Permitted Transaction) does not exceed US$30,000,000 (or its equivalent ) in any Financial Year.

 

Permitted Financial Indebtedness means Financial Indebtedness:

 

(a) arising under any of the Finance Documents;

 

(b) which constitutes (i) Parent Liabilities or (ii) Financial Indebtedness that is otherwise subordinated to the Facilities on terms that are acceptable to the Agent (acting on the instructions of the Majority Lenders) or (iii) Financial Indebtedness owing by the Parent to any one or more of its shareholders or Affiliates of its shareholders and subject to the Intercreditor Agreement, but (in the case of (ii)) only if the creditor's rights in respect of such Financial Indebtedness are assigned to the Security Agent by way of security on terms acceptable to the Agent (acting on the instructions of the Majority Lenders);

 

(c) constituting, or that is part of or made or incurred under, a Permitted Guarantee, (other than paragraph (d) of the definition of Permitted Guarantee, to the extent that it applies to any Permitted Financial Indebtedness), a Permitted Loan (other than paragraph (b) of the definition of Permitted Loan to the extent that it applies to any Permitted Financial Indebtedness), a Permitted Transaction, Permitted Cash Pooling or a Permitted Treasury Transaction;

 

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(d) arising under any Deferred Consideration;

 

(e) arising under a Finance Lease of vehicles, equipment, computers or fixed assets provided that the aggregate capital value of all such items so leased under outstanding leases by Group Members (excluding any Financial Indebtedness that falls within any other paragraph of this definition) does not (when aggregated with (without duplication) the aggregate amount of any Financial Indebtedness incurred pursuant to paragraph (f) below) exceed US$10,000,000 (or its equivalent) at any time;

 

(f) arising under any vendor financing relating to purchased equipment provided that the aggregate principal amount outstanding under all such arrangements (excluding any Financial Indebtedness that falls within any other paragraph of this definition) does not (when aggregated with (without duplication) the aggregate amount of any Financial Indebtedness incurred pursuant to paragraph (e) above) exceed US$10,000,000 (or its equivalent) at any time;

 

(g) raised by the issue of redeemable shares which are held by another Group Member pursuant to a Permitted Share Issue;

 

(h) incurred by any Offshore Group Member under any Permitted Collateralised Indebtedness;

 

(i) arising under or in connection with any bill payable or similar instrument issued by any financial institution in the PRC on behalf of any Onshore Group Member to support obligations of any Onshore Group Member incurred in the course of ordinary day-to-day business, where any Onshore Group Member has provided cash collateral to such financial institution in respect of the full face value of such bill payable or similar instrument;

 

(j) which is Permitted Additional Debt or a Refinancing Indebtedness;

 

(k) which is a Permitted Receivables Financing;

 

(l) incurred by any Group Member which is not the Company or a Material Company provided that such Financial Indebtedness is not guaranteed or secured by the Company or a Material Company and shall be applied towards a Permitted Acquisition and/or Capital Expenditure;

 

(m) incurred by any person acquired by the Group (or indebtedness attaching to the assets of such person) pursuant to a Permitted Acquisition (whether secured on pari passu basis with the Facilities or on a junior basis or senior unsecured, guaranteed or unguaranteed) and which is in existence at the time of acquisition and not incurred or increased in contemplation of the acquisition and is discharged within 4 months of completion of the acquisition unless otherwise permitted to remain outstanding pursuant to another paragraph of this definition);

 

(n) arising between any Group Member;

 

(o) of any Group Member the aggregate outstanding principal amount of which does not exceed 35% of the Adjusted EBITDA of the Group as at the Most Recent Relevant Period;

 

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(p) which is Financial Indebtedness of any entity acquired by a Member of the Group (or Financial Indebtedness attaching to the assets of such entity) pursuant to a Permitted Acquisition (whether secured on pari passu basis with the Initial Term Facility or on a junior basis or senior unsecured, guaranteed or unguaranteed) provided that if the Leverage referred to Clause 23.2 (Financial condition) were re-calculated for the Most Recent Relevant Period on a pro forma basis (taking into account, any cost savings and synergies cost savings and synergies (calculated on the same basis as Adjusted EBITDA) and the Financial Indebtedness of such acquired entity), the requirements of Clause 23.2 (Financial condition) for that Most Recent Relevant Period would be complied with and provided further that such Financial Indebtedness is in existence at the time of the acquisition and not incurred or increased in contemplation of the acquisition;

 

(q) Group cash pooling and daylight exposures under ordinary course banking and treasury activities; and

 

(r) any secured or unsecured Financial Indebtedness of any Onshore Group Member, provided that (x) the net proceeds of such Financial Indebtedness is used primarily for the purpose of repaying and/or refinancing the Initial Term Facility Loan or (y) the following conditions are met at the time of such incurrence (a) no Event of Default is continuing or would occur as a result of such incurrence and (b) if the Leverage referred to in Clause 23.2 (Financial condition) were re-calculated for the Most Recent Relevant Period on a pro forma basis (taking into account the incurrence of such Financial Indebtedness, application of proceeds of such Financial Indebtedness including any adjustments to EBITDA in accordance with paragraphs (b) to (d) of Clause 23.3 (Financial testing) in respect of any acquisition and any other pro forma adjustments in respect of any repayment of such Financial Indebtedness), the requirements of Clause 23.2 (Financial condition) for that Most Recent Relevant Period would be complied with (provided that if such Financial Indebtedness is incurred prior to the First Test Date, the maximum Leverage for that Most Recent Relevant Period shall be deemed to be the maximum Leverage permitted under Clause 23.2 (Financial condition) as at the First Test Date) (Permitted PRC Indebtedness),

 

provided that in the event that any Financial Indebtedness (Refinancing Debt) is incurred for the purposes of refinancing any other Financial Indebtedness (Refinanced Debt), any temporary non-compliance of any foregoing limit (including in respect of the Permitted Additional Debt) shall not result in any Refinancing Debt or Refinanced Debt not being permitted, as long as such limit would have been complied with had the proceeds of such Refinancing Debt been applied towards such refinancing and the applicable Group Members are taking reasonable steps to apply the proceeds of such Refinancing Debt towards the refinancing of such Refinanced Debt provided further that such application towards refinancing of such Refinanced Debt will be made within 10 Business Days after the date of incurrence of such Refinancing Debt and provided further that in the event that the Facilities are being replaced or refinanced in part only (such replacing or refinancing Financial Indebtedness being Refinancing Indebtedness) (A) the weighted average life of the Refinancing Indebtedness shall be no shorter than the remaining weighted average life of the Initial Term Facility, (B) the final maturity date of any such Refinancing Indebtedness shall be no earlier than the Termination Date in respect of the Initial Term Facility, (C) the provider(s) of such Refinancing Indebtedness (or, where customary for financing of the relevant type, the agent or trustee in respect of such Refinancing Indebtedness) shall become party to the Intercreditor Agreement on pari passu or junior basis, (D) any proceeds from such Refinancing Indebtedness shall be applied towards the purported refinancing only (dollar for dollar) and any associated Transaction Costs and shall be so applied within five Business Days of after the date of incurrence of such Refinancing Indebtedness, (E) any Refinancing Indebtedness may only receive any mandatory prepayments pro rata with or after (and not in priority to) the Initial Term Facility, (F) the Refinancing Indebtedness shall only be secured by the Transaction Security that also secure the Facilities (on pari passu or junior basis), (G) (in respect of refinancing of part of the Initial Term Facility only) such Refinancing Indebtedness shall be on terms no more onerous for the Group than the Initial Term Facility or otherwise on terms satisfactory to the Agent (acting on the instructions of the Majority Lenders (acting reasonably)), and (H) no Event of Default is continuing or would result from the incurrence of such Refinancing Debt.

 

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Permitted Gross Outstandings means, in relation to a Multi-account Overdraft, any amount, not exceeding its Designated Gross Amount, which is the amount of the Gross Outstandings of that Multi-account Overdraft.

 

Permitted Guarantee means:

 

(a) any guarantee under the Finance Documents;

 

(b) the endorsement of negotiable instruments and the giving of indemnities in the ordinary course of business;

 

(c) guarantees in relation to performance by any Obligor or any Group Member under any contract entered into in the ordinary course of business (and counter-indemnities to financial institutions which have guaranteed such performance) but, in each case, not in respect of Financial Indebtedness;

 

(d) guarantees which constitute, are part of or are given under, any Permitted Financial Indebtedness (other than paragraph (c) of the definition of Permitted Financial Indebtedness to the extent it relates to any Permitted Guarantee), any Permitted Cash Pooling, any Permitted Joint Venture Investment in a Permitted Joint Venture, a Permitted Transaction, Permitted Receivables Financing or a Permitted Treasury Transaction;

 

(e) guarantees granted by a Target Group Member on or prior to the Closing Date (being limited to those set out in the Structure Memorandum and not entered into in contemplation of this restriction);

 

(f) guarantees granted by any Future Acquisition Target (that is the subject of any Permitted Business Acquisition and that was not a Group Member prior to such Permitted Business Acquisition but becomes a Group Member pursuant to such Permitted Business Acquisition) or any Subsidiary thereof and existing at the time of such Permitted Business Acquisition;

 

(g) indemnities (in customary form) given in the ordinary course of the documentation of an acquisition or disposal transaction;

 

(h) guarantees required by a court, tribunal, arbitral body or agency in connection with arbitration and other legal proceedings not otherwise being an Event of Default;

 

(i) guarantees given by any Obligor or Group Member in respect of the obligations of another Group Member;

 

(j) guarantees given by a Group Member to landlords in the ordinary course of business and guarantees and counter-indemnities in favour of financial institutions which have guaranteed rent obligations of a Group Member in respect of real property in the ordinary course of business for such Group Members;

 

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(k) guarantees made by any Obligor or Group Member in substitution for an extension of credit permitted under the definition of Permitted Loan to the extent that such Obligor or Group Member would have been entitled to extend credit in an equivalent amount under the definition of Permitted Loan (taking into account the substitution of such credit with the guarantees and indemnities as contemplated in this paragraph (k)) to the person whose obligations are being so guaranteed or, as applicable, indemnified;

 

(l) any guarantee granted by any Obligor or Group Member to the trustee of any employee share option or employee unit trust scheme of any Obligor or Group Member;

 

(m) customary indemnities given in mandate, engagement and commitment letters and financing documentation and to professional advisers and consultants;

 

(n) customary indemnities in favour of directors and officers of Obligors and Group Members in their capacity as such in connection with the performance of their duties to the relevant Obligor(s) and/or Group Member(s);

 

(o) any counter-indemnity obligations of any Group Member in respect of any performance bond or similar instrument issued by a bank or financial institution guaranteeing or in support of performance by any Group Member under any contract entered into in the ordinary course of its business (and not relating to Financial Indebtedness);

 

(p) guarantees granted or arising under legislation relating to tax or corporate law under which any Obligor or Group Member assumes general liability for the obligations of another Obligor or Group Member incorporated or tax resident in the same jurisdiction;

 

(q) any counter-indemnity obligations of any Onshore Group Member in respect of any SBLC issued in connection with any Permitted Collateralised Indebtedness or any guarantee by an Onshore Group Member which has granted a Cash Pledge in respect of any Permitted Collateralised Indebtedness; and

 

(r) any guarantee the outstanding principal amount of which, when aggregated with all other guarantees and indemnities under this paragraph (r) (excluding any guarantee or indemnity permitted under any other paragraph of this definition) and any Financial Indebtedness incurred under paragraph (n) of the definition of Permitted Loan, does not exceed US$30,000,000 (or its equivalent) in aggregate at any time.

 

Permitted Hedging Security has the meaning given to that term in the definition of Permitted Collateralised Indebtedness.

 

Permitted Holding Company Activity means:

 

(a) liabilities arising from the incurrence of and payment of Transaction Costs, and fees, costs, commissions and expenses in the ordinary course of business of a holding company including in connection with maintenance of existence, all necessary filings and compliance with all applicable laws and liabilities arising by operation of law or agreement of similar effect;

 

(b) treasury and normal holding company activities, including the provision of administrative, management, legal and accounting services to other Group Members of a type customarily provided by a holding company to its subsidiaries;

 

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(c) making or receiving Permitted Loans, giving or benefiting from Permitted Guarantees, making any Permitted Treasury Transactions, making or receiving any Permitted Payments, issuing or subscribing for a Permitted Share Issue, making a Permitted Acquisition or acquiring rights or incurring liabilities otherwise permitted under the Finance Documents and incurring any Permitted Financial Indebtedness including:

 

(i) any rights and liabilities that are Parent Liabilities;

 

(ii) any Financial Indebtedness and/or other liabilities incurred under the Transaction Documents; and

 

(iii) any guarantee or indemnity given under the Transaction Documents;

 

(d) ownership of shares in its Subsidiaries, intra-Group credit balances and other credit balances in bank accounts, cash and Cash Equivalent Investments;

 

(e) the payment of salaries to management, directors, officers and employees of the Group;

 

(f) any action taken pursuant to a Permitted Transaction or pursuant to other steps set out in the Structure Memorandum and any arrangement in respect of, or the making of, a Permitted Payment or entering into a transaction to facilitate making a Permitted Payment;

 

(g) non-trading activities customary for non-trading companies in a transaction of this nature and/or incurrence of liabilities in connection with Taxes, including as a result of acting as the person responsible for payment of Taxes in a tax group (or equivalent) involving other Group Members;

 

(h) any activity in connection with any employee or participation scheme operated by a Group Member or any Holding Company thereof;

 

(i) (in respect of the Parent only) making any loan to a Sponsor, taking guarantee and/or security in connection therewith and applying the proceeds of interest and repayment of such loan in connection with any Permitted Holding Company Activity; and

 

(j) any other activity or transaction permitted by the Agent (with the consent of the Majority Lenders).

 

Permitted IPO means any IPO of the Company, any other Group Member or an IPO Holding Company at any time where:

 

(a) the IPO will not result in a Change of Control;

 

(b) no Event of Default is continuing or would result from the IPO; and

 

(c) in the case of an IPO of a Material Company, after giving effect to the IPO, such IPO Entity remains a Subsidiary of the Company after the IPO.

 

Permitted Joint Venture means:

 

(a) an Existing Joint Venture;

 

(b) any Joint Venture which ((if it has any Subsidiary) together with its Subsidiaries, taken as a whole) carries on a principal business which falls within the general nature of the principal business carried on by the Group or is similar to, complementary to, compatible with or related to, the Core Business or is reasonably related, synergistic, incidental or ancillary to, the Core Business; and

 

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(c) any Joint Venture constituting, being part of, arising from or entered into under or pursuant to, a Permitted Loan (to the extent such Permitted Loan is constituted by a loan or debt securities convertible into or exchangeable with the equity securities of an entity), a Permitted Share Issue or a Permitted Transaction.

 

Permitted Joint Venture Investment means:

 

(a) any Joint Venture Investment in an Existing Joint Venture falling within paragraph (a) of that definition, provided that any further investment in such Existing Joint Venture after the Initial Utilisation Date of the Initial Term Facility is contractually committed or contemplated by the Target Group as at the Initial Utilisation Date of the Initial Term Facility and to the extent disclosed to the Agent in the Disclosure Letter;

 

(b) any Joint Venture Investment in an Existing Joint Venture falling within paragraph (b) of that definition, provided that any further investment in such Existing Joint Venture after the date on which the relevant Future Acquisition Target becomes a Group Member is committed on or prior to the date on which that Future Acquisition Target becomes a Group Member;

 

(c) any Joint Venture Investment constituting, being part of, arising from or entered into under or pursuant to, a Permitted Loan (to the extent such Permitted Loan is constituted by a loan or debt securities convertible into or exchangeable with the equity securities of an entity), a Permitted Share Issue or a Permitted Transaction; and

 

(d) any Joint Venture Investment in a Permitted Joint Venture, provided that:

 

(i) as at the date where any Group Member enters into a legally binding commitment to make such Joint Venture Investment, no Event of Default is continuing or would result from such Joint Venture Investment, in each case by reference to the facts and circumstances known to the Group as at the date of entry into of such commitment;

 

(ii) any Financial Indebtedness incurred to finance any Joint Venture Investment is Permitted Financial Indebtedness; and

 

(iii) promptly after the date of any Group Member's entry into a legally binding commitment to make such Joint Venture Investment, the Company certifies that (to the Company's Knowledge) if the Leverage referred to in Clause 23.2 (Financial condition) were re-calculated for the Most Recent Relevant Period on a pro forma basis (taking into account any cost savings and synergies cost savings and synergies (calculated on the same basis as Adjusted EBITDA)) and as if the consideration for such Joint Venture Investment had been paid and the Financial Indebtedness to be incurred in connection with such Joint Venture Investment had been utilised at the start of that Most Recent Relevant Period, and after giving pro forma effect to (A) amounts subscribed for shares in or invested in (net of all redemptions) or lent to (net of any repayment) all such Joint Ventures by any Group Member, (B) the contingent liabilities of any Group member under any guarantee given in respect of the liabilities of any such Joint Venture, and (C) the market value of any assets transferred by any Group Member to any such Joint Venture (not being sales or purchases for cash made between a Group Member and any such Joint Venture in the ordinary course of trade and on arm’s lengths terms), the Group would have complied with the Leverage financial covenant set out in Clause 23.2 (Financial condition) for that Most Recent Relevant Period (provided that if such legal commitment to make such Joint Venture Investment is entered into prior to the First Test Date, the maximum Leverage for that Most Recent Relevant Period shall be deemed to be the maximum Leverage permitted under Clause 23.2 (Financial condition) as at the First Test Date). For the avoidance of doubt, any reference in this paragraph (ii) to a Joint Venture Investment shall be a reference to that Joint Venture Investment as renewed, extended or otherwise replaced from time to time (provided that any increase in the amount of that investment must otherwise be permitted under this definition).

 

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Permitted Loan means:

 

(a) any trade credit extended in the ordinary course of day-to-day business and/or any advance payment made (including advance payment in relation to permitted Capital Expenditure) in the ordinary course of day-to-day business;

 

(b) a loan or credit which constitutes, is part of or is made under or is necessary to implement or is consideration for, any Permitted Financial Indebtedness (except under paragraph (g) of the definition thereof and paragraph (c) thereof to the extent that such paragraph (c) relates to any Permitted Loan), a Permitted Acquisition, a Permitted Joint Venture Investment, a Permitted Payment or a Permitted Transaction;

 

(c) any loan or credit made available for the purposes of enabling the Borrower to meet its payment obligations under the Finance Documents or in respect of any Parent Liabilities permitted under the Finance Documents, to make a Permitted Payment or to facilitate compliance with applicable law;

 

(d) any loan or credit made available by a Group Member to another Group Member (and if both debtor and creditor in respect of such loan are Onshore Group Members, such loan may be made by way of entrustment loan or similar arrangements) provided that to the extent required by the Intercreditor Agreement but subject to the Security Principles, if the outstanding principal amount of that loan exceeds US$30,000,000 (or its equivalent), the creditor thereof (if it is an Offshore Group Member) and the debtor thereof (if it is also an Offshore Group Member) are or become party to the Intercreditor Agreement as an Intercompany Lender and a Debtor (as defined, in each case, in the Intercreditor Agreement), respectively;

 

(e) any loan or credit made available by the Parent to the Company (including any loan or credit made available by the Parent pursuant to a Parent Loan Document);

 

(f) a loan made by any Obligor or Group Member to a director, officer, manager or employee of any Obligor or Group Member if the amount of that loan when aggregated with the amount of all other such loans (excluding any loan falling within any other paragraph of this definition) does not exceed US$15,000,000 (or its equivalent) at any time;

 

(g) any loans made to an employee share option scheme or employee unit trust scheme of the Group (or to directors, officers or other employees of the Group for the purposes of participating in such schemes) up to an aggregate amount of US$10,000,000 (or its equivalent) at any time;

 

(h) any loan or credit arrangement made by a Target Group Member on or prior to the Closing Date and to the extent disclosed to the Agent in the Disclosure Letter provided that the principal amount of that loan or credit arrangement is not increased from the principal amount outstanding on the Closing Date (except pursuant to a commitment binding on any Target Group Member as at the Closing Date);

 

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(i) any loan or credit made by a Future Acquisition Target (the subject of a Permitted Business Acquisition, which Future Acquisition Target was not a Group Member prior to such Permitted Business Acquisition but becomes a Group Member pursuant to such Permitted Business Acquisition) or any Subsidiary thereof, which loan or credit is existing as at the closing date of such Permitted Business Acquisition (as any such loan or credit arrangement may be transferred to another Group Member), provided that the principal amount of that loan or credit arrangement is not increased from the principal amount outstanding on the date of closing of such Permitted Business Acquisition (except pursuant to a commitment binding on such Future Acquisition Target or any Subsidiary thereof as at the date of closing of such Permitted Business Acquisition);

 

(j) any loan or credit representing deferred consideration on a Permitted Disposal which loan or credit is no more than 50 per cent. of the total consideration for that Permitted Disposal (provided that contingent consideration arrangements (including earn-outs) shall not be treated as a loan or credit for this purpose) and the terms of such deferred consideration are that it shall be paid within 18 months of the closing date of such Permitted Disposal;

 

(k) any loan or credit constituted by any cash credit balance at a bank or other financial institution;

 

(l) loans or extensions of credit to the extent the amount thereof would be permitted under paragraph (r) of the definition of Permitted Guarantee if such loans or extensions of credit were made by third parties under and with the benefit of the guarantee of any Obligor or Group Member (for the amount of such loans or extensions of credit);

 

(m) any loan made by a Target Group Member to any shareholder of a Controlled Entity on or prior to the Closing Date and to the extent disclosed to the Agent in the Disclosure Letter; and

 

(n) any loan or credit so long as the aggregate amount of the Financial Indebtedness under such loan or credit does not, when aggregated with the Financial Indebtedness under all other loans and credits under this paragraph (m) (excluding any falling within any other paragraph of this definition) and any guarantee or indemnity permitted under paragraph (r) of the definition of Permitted Guarantee, exceed US$30,000,000 (or its equivalent) in aggregate at any time.

 

Permitted Payment means:

 

(a) payment of a management fee per annum plus any Indirect Tax thereon (if applicable) plus reasonable expenses in any Financial Year by the Company to the Investors and/or any of their Affiliates (together, the Management Fees) where the aggregate of Management Fees (when aggregated with any amount paid under paragraphs (f) and (k) below) in any Financial Year does not exceed US$15,000,000 (or its equivalent);

 

(b) the making of any Restricted Payment (not falling within paragraph (c) of the definition of Restricted Payment), (i) by a Group Member (other than the Company) in favour of the holder(s) of shares or equity interests in such Group Member pro rata according to the applicable holding of shares or equity interests in such first-mentioned Group Member held by such holder(s) (but excluding any payment to nominal shareholders of any Controlled Entity) and (ii) by a Group Member to another Group Member in accordance with the Controlled Entities Documents;

 

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(c) any payment made by the Company to any Holding Company of the Company for funding the consideration payable by such Holding Company of any acquisition falling within paragraph (e) of the definition of Permitted Transaction;

  

(d) a payment to any Investor and any of its Affiliates to cover transaction fees and expenses incurred in connection with the Merger, provided that such payments are reflected in the Funds Flow Statement;

 

(e) payment to departing managers, directors, employees or officers in accordance with the terms of their employment or directorship contracts (provided that such contracts relate principally to the business of the Group);

 

(f) payment to or for the account of a (direct or indirect) Holding Company of the Company in order to enable that Holding Company to maintain its corporate existence (including payment of applicable regulatory costs), to pay fees, costs and expenses related to the Group, to pay fees and expenses (including ad hoc advisory fees), to pay Taxes, to the extent they relate to or are attributable to the Group (including as a result of any tax grouping arrangement) and to pay any interest or fees in respect of any Permitted Collateralised Indebtedness, provided that the aggregate of such payments by Group Members (when aggregated with any amount paid under paragraph (a) above and paragraph (k) below) (excluding any payment falling within any other paragraph of this definition) does not exceed US$15,000,000 (or its equivalent) in any Financial Year (provided that, any amount which is not paid in any Financial Year may be carried over into (and paid during) subsequent Financial Years;

 

(g) the declaration and payment of a Restricted Payment in cash by the Company provided that:

 

(i) no Event of Default is continuing at that time of declaration of such Restricted Payment or would result from that Restricted Payment being made; and

 

(ii) either:

 

(A) the Most Recent Leverage (as at the time of declaration of such Restricted Payment) calculated giving pro forma effect to such payment (and any Financial Indebtedness incurred or to be incurred to finance such payment) is less than 3.50:1 but more than or equal to 2.50:1 as at the time of declaration of such Restricted Payment provided that an amount equal to such Restricted Payment is, on the date on which such Restricted Payment is paid by the Company, is applied towards in prepayment of the Initial Term Facility Loan and such prepayment shall reduce the Repayment Instalments of the Initial Term Facility Loan pursuant to Clause 8.1 (Repayment of Term Facility Loan) on a pro rata basis; or

 

(B) the Most Recent Leverage (as at the time of declaration of such Restricted Payment) calculated giving pro forma effect to such payment (and any Financial Indebtedness incurred or to be incurred to finance such payment) is less than 2.50:1 as at the time of declaration of such Restricted Payment,

 

provided further that, for the avoidance of doubt, if the Most Recent Leverage calculated giving pro forma effect to such payment (and any Financial Indebtedness incurred or to be incurred to finance such payment) is greater than or equal to 3.50:1, no such Restricted Payment may be declared or paid in accordance with this paragraph (g);

 

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(h) payment of any Royalty Payment by a Group Member to another Group Member;

 

(i) a payment constituting, or that is part of or made under, a Permitted Transaction;

 

(j) any payment to directly or indirectly acquire shares or other ownership interests (and/or to cancel, discharge, purchase or repay any related loans and other amounts owing to the Group) held by (or owing to) any present or former employees, directors, officers, managers or consultants of the Group Members or any Holding Company (or any transferee thereof) (or their estates or the beneficiaries of such estates) in respect of:

 

(i) the Liquidity Program (as defined in the Shareholders Agreement) in substitution of the existing 2010 Employee Stock Option Plan and the 2013 Share Incentive Plan of the Target Group; and

 

(ii) any other management equity, incentive, benefit or stock option plan (or other similar agreement or arrangement) not exceeding US$50,000,000 (or its equivalent) in any Financial Year;

 

(k) a Restricted Payment made in respect of any bona fide acquisition and transaction advisory fee in relation to any debt raising or acquisition activities, provided that the aggregate of such Restricted Payments by Group Members does not exceed (when aggregated with any amount paid under paragraphs (a) and (f) above) the aggregate of US$15,000,000 (or its equivalent) in any Financial Year;

 

(l) any Restricted Payment by any other Group Members to a Borrower for the purposes of debt service of the Group (including any prepayment or repayment thereof) at any time; and

 

(m) any payment of Portfolio Company Consideration (provided that it is fully funded from the Portfolio Company Deposit) and the Portfolio Company Premium.

 

Permitted PRC Indebtedness has the meaning given to that term in paragraph (r) of the definition of Permitted Financial Indebtedness.

 

Permitted Receivables Financing means an arrangement for the sale or discontinuing of receivables of Group Members on a recourse basis (including by way of securitisation or similar programme and where the recourse is limited to such receivables), provided that the Financial Indebtedness incurred by Group Members pursuant to those arrangements constitutes Permitted Financial Indebtedness (other than paragraph (k) of the definition of Permitted Financial Indebtedness) and, to the extent that any Security or Quasi-Security is granted in connection therewith (the Secured Receivables Financing), the outstanding principal amount secured by such Security or Quasi-Security does not exceed the amounts permitted pursuant to paragraph (y) of the definition of Permitted Security (when aggregated with all other amounts incurred in accordance with that paragraph and any other Secured Receivables Financing).

 

Permitted Reorganisation means:

 

(a) the liquidation, reorganisation, merger, demerger, amalgamation, consolidation or corporate reconstruction (a Reorganisation) on a solvent basis of any Group Member (other than the Company) so long as any payments or assets distributed as a result of such liquidation or reorganisation are distributed to other Group Members (or to the holder(s) of shares or equity interests in such Group Member pro rata according to their respective holding of shares or equity interests in such Group Member);

 

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(b) a Reorganisation contemplated under the Structure Memorandum;

  

(c) a Reorganisation required to effect a Permitted IPO;

 

(d) a Reorganisation required for the purposes of a debt push-down, prepayment or repayment of a Cash Bridge Facility provided that the net proceeds are used to prepay the Initial Term Facility or a Cash Bridge Facility (as the case may be); and

 

(e) a Reorganisation on a solvent basis of an Obligor (other than the Company),

 

provided that:

 

(i) in the case of a Reorganisation under any of the paragraphs (c) and (e) above, all of the assets of the Obligors subject to the Reorganisation shall be retained by one or more of the Obligors (except to the extent constituting a Permitted Disposal (excluding paragraph (f) of the definition of Permitted Disposal to the extent it relates to a Permitted Transaction falling within paragraph (b) of the definition thereof));

 

(ii) in the case of a Reorganisation under paragraph (c) above, the Finance Parties shall receive, subject to the Security Principles, Transaction Security over shares in the IPO Entity held by a Group Member or the Parent that is in place immediately prior to the Reorganisation;

 

(iii) in the case of a Reorganisation of a Group Member or an Obligor under paragraphs (a) and (e) above (such Group Member or Obligor, the Existing Entity), the Finance Parties shall receive, subject to the Security Principles, Transaction Security and guarantee substantially the same in scope to any Transaction Security and guarantee that is in place over the assets of the Existing Entity or over its ownership interests (or, in the case of a guarantee, from the Existing Entity) immediately prior to that Reorganisation (including security granted by any successor to the Existing Entity over its assets, or any security granted by any Holding Company of any successor to the Existing Entity over the shares in such successor) and the surviving entity assumes liability for the Existing Entity under the Finance Documents; and

 

(iv) in each case of paragraphs (a) to (e) above, no Event of Default is continuing at the commencement of that Reorganisation.

 

Permitted Sale and Leaseback means the disposal of one or more assets (including any real property (or any fixtures thereon)) by a Group Member on terms where they may be leased back to a Group Member, provided that the aggregate amount of the higher of the market value of those assets and the proceeds raised from that disposal does not exceed (in aggregate for any and all such disposals) US$10,000,000 (or its equivalent) over the life of the Facilities.

 

Permitted Security means:

 

(a) any Security or Quasi-Security arising by operation of law or agreement of similar effect and in the ordinary course of business;

 

(b) any Security or Quasi-Security arising in connection with Permitted Cash Pooling and any Security or Quasi-Security granted to a financial institution on that financial institution's standard terms and conditions (or better) or under applicable law in respect of accounts and services;

 

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(c) any Security or Quasi-Security over or affecting any asset acquired by a Group Member after the Closing Date if:

 

(i) that Security or Quasi-Security was not created in contemplation of (and was subsisting at the time of) the acquisition of that asset by a Group Member;

 

(ii) the principal amount secured (otherwise than by a capitalisation of interest) has not been increased in contemplation of or since the acquisition of that asset by that Group Member; and

 

(iii) that Security or Quasi-Security is removed or discharged within four months of the date of acquisition of that asset by that Group Member (save to the extent that such Security or Quasi-Security constitutes Permitted Security under another paragraph of this definition);

 

(d) any Security or Quasi-Security over or affecting any asset of any person which becomes a Group Member after the Closing Date, where that Security or Quasi-Security is created prior to the date on which that person becomes a Group Member; if:

 

(i) that Security or Quasi-Security was not created in contemplation of that person's becoming a Group Member;

 

(ii) the principal amount secured has not increased (otherwise than by capitalisation of interest) in contemplation of or since that person's becoming a Group Member; and

 

(iii) that Security or Quasi-Security is removed or discharged within four months of that person's becoming a Group Member (save to the extent that such Security or Quasi-Security constitutes Permitted Security under another paragraph of this definition);

 

(e) any Security or Quasi-Security arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to any Obligor or Group Member in the ordinary course of business and on the supplier's standard or usual terms and not as a result of any default or omission by any Obligor or Group Member;

 

(f) any Security or Quasi-Security subsisting over assets of a Target Group Member provided that such Security or Quasi-Security is irrevocably removed or discharged on or prior to the Closing Date or is disclosed to the Agent in the Disclosure Letter (save to the extent that such Security or Quasi-Security constitutes Permitted Security under another paragraph of this definition);

 

(g) any Security or Quasi-Security arising in connection with a Permitted Disposal (other than paragraphs (f) or (g)(ii) of the definition of Permitted Disposal to the extent it relates to any Permitted Security) or a Permitted Acquisition;

 

(h) any Security or Quasi-Security arising as a consequence of or in connection with any finance or capital lease where the Financial Indebtedness arising under that arrangement is Permitted Financial Indebtedness;

 

(i) any payment or close-out netting or set-off arrangements under Permitted Treasury Transactions, provided that such arrangements shall not provide for any amount owing to a Group Member to be netted or set off against any obligations or liabilities of any person other than a Group Member;

 

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(j) any set-off arrangements under Permitted Financial Indebtedness, provided that such arrangements shall not provide for any amount owing to a Group Member to be set off against any obligations or liabilities of any person other than a Group Member;

  

(k) any Transaction Security, including cash collateral to secure, and any blocked accounts in respect of, obligations under the Finance Documents or a Permitted Additional Debt;

 

(l) any Security or Quasi-Security arising out of judgments or awards and/or arising by operation of law or the rules of any applicable court in respect of litigation involving any Obligor or Group Member (including any escrow payment into court);

 

(m) any Security over any rental deposits in respect of any property leased or licenced by any Obligor or Group Member in the ordinary course of business;

 

(n) any Security over documents of title and goods and rights relating to those goods created by any Obligor or Group Member as part of a documentary credit transaction;

 

(o) any Security or Quasi-Security (arising by operation of law or pursuant to mandatory provisions of applicable law) over any assets of any Obligor or Group Member as security for the payment of any taxes, assessments, charges or claims of or imposed by any Governmental Agency against or on such Group Member;

 

(p) any Security or Quasi-Security which does not secure any outstanding actual or contingent obligation, provided that the relevant Obligor or Group Member takes commercially reasonable steps to procure the release of that Security or Quasi-Security;

 

(q) any Security or Quasi-Security over cash paid into an escrow or similar account in connection with a Permitted Disposal or a Permitted Acquisition including those in favour of any tax, customs or bonding authorities;

 

(r) any cash collateral provided in respect of letters of credit or bank guarantees to the issuer of those letters of credit or bank guarantees (where such letters of credit or bank guarantees are issued for the benefit of any Obligor or Group Member);

 

(s) deposits to secure the performance of bids, trade contracts, governmental contracts and leases (in each case other than Financial Indebtedness), statutory obligations, surety, stays, customs and appeal bonds, performance bonds and other obligations of a like nature (including those to secure health, safety and environmental obligations) of any Obligor or Group Member incurred in the ordinary course of business;

 

(t) any Security or Quasi-Security constituted by easements, rights-of-way, restrictions, encroachments, protrusions and other similar encumbrances and title defects affecting real property which, in the aggregate, do not materially interfere with the ordinary conduct of the business of the applicable Obligor or Group Member;

 

(u) any Security or Quasi-Security constituted by (i) any Cash Pledge made by an Onshore Group Member in connection with any Permitted Collateralised Indebtedness or (ii) any Permitted Collateralised Hedging Transaction;

 

(v) any Security or Quasi-Security granted in respect of any Permitted Financial Indebtedness in respect of bills payable under paragraph (i) of Permitted Financial Indebtedness;

 

(w) any Security or Quasi-Security granted in respect of Permitted PRC Indebtedness the outstanding principal amount of the principal amount of any Permitted PRC Indebtedness that is outstanding at any time provided that such Security or Quasi-Security is not granted over assets subject to Transaction Security;

 

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(x) utility easements, building restrictions and such other Security against real property as are of a nature generally existing with respect to properties of a similar character;

 

(y) any Security or Quasi-Security granted by any Obligor or Group Member securing Permitted Receivables Financing, the outstanding principal amount of which does not exceed US$10,000,000 (or its equivalent) at any time;

 

(z) any Security or Quasi-Security granted under the Controlled Entities Documents; and

 

(aa) any Security or Quasi-Security granted by any Obligor or Group Member securing any other indebtedness, the outstanding principal amount of which (when aggregated with the outstanding principal amount of any and all other indebtedness which has the benefit of Security given by any or all of the Obligors and Group Members other than any permitted under paragraphs (a) to (y) above) does not exceed US$30,000,000 (or its equivalent) at any time.

 

Permitted Share Issue means an issue of shares:

 

(a) by the Company to the Parent which are not redeemable at the option of the holder thereof before the date falling six Months after the Termination Date in respect of the Initial Term Facility, where such issue does not lead to a Change of Control;

 

(b) by a Group Member to its immediate Holding Company or to another Group Member or to a minority shareholder in each case proportionate to its existing holding of shares in such Group Member provided that if the existing shares of the issuing Group Member are the subject of the Transaction Security, the newly-issued shares also become subject to the Transaction Security on the same terms;

 

(c) by the Company to the Parent of shares in exchange for an asset (whether contributed to the Company or any other Group Member) provided that such shares issued or to be issued by the Company are, or are required by the Finance Documents to be, subject to the same Transaction Security under the Transaction Security Documents as the Company's shares already in issue;

 

(d) by a Group Member (other than the Company, a WFOE or a Material Company) to a person (that is not a Group Member), provided that such Group Member remains a Group Member after such issuance;

 

(e) by a Group Member (other than the Company) to managers, officers, directors, employees or distributors of the Group pursuant to any share incentive scheme;

 

(f) as part of a Permitted Joint Venture Investment;

 

(g) as part of a Permitted IPO;

 

(h) constituting, or that is part of or made under or pursuant to, a Permitted Transaction;

 

(i) by a Target Group Member provided that such issue is contractually committed or contemplated by the Target Group as at the Initial Utilisation Date of the Initial Term Facility and to the extent disclosed to the Agent in in the Disclosure Letter; and

 

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(j) by the Company of shares as consideration for any Permitted Acquisition, provided that such shares (if issued to any person other than the Parent) are promptly transferred directly or indirectly (whether through equity contribution or otherwise) to the Parent and become subject to Transaction Security (free from any claims, third party rights or competing interests).

  

Permitted Sponsor Amounts means, at any time, any amounts that the Group may, at that time, pay to one or more of the Sponsors in accordance with the terms of this Agreement (to the extent not actually paid to one or more of the Sponsors or otherwise utilised for any other purpose under this Agreement).

 

Permitted Transaction means:

 

(a) any disposal required, Financial Indebtedness incurred, guarantee, indemnity or Security or Quasi-Security given, or other transaction arising, under the Finance Documents or the Transaction Documents;

 

(b) a Permitted Reorganisation;

 

(c) where necessary to comply with Tax or other legislation, any conversion into distributable reserves or share capital, capitalisation, forgiveness, waiver, release or other discharge of a loan or credit (including an intercompany account) outstanding between Group Members or between the Parent and the Company, provided that if that loan or credit was subject to Transaction Security prior to such event, the Finance Parties will (subject to the Security Principles) enjoy equivalent Transaction Security over any asset resulting from such event;

 

(d) any payment or other transaction set out in, described in or contemplated by the Structure Memorandum, the Merger Documents or permitted by the Majority Lenders, or any action or intermediate step necessary to implement any such payment or transaction;

 

(e) any acquisition by any Group Member or any Holding Company of the Company of, or any loan to a trust or special purpose vehicle to fund the acquisition of, shares or other ownership interests or loan notes of managers, directors, officers and employees of a Group Member on their ceasing to be employed or appointed, but only if the aggregate amount of consideration paid (excluding any such consideration funded from any New Shareholder Injection or Permitted Financial Indebtedness) (when aggregated with any payment made under paragraph (e) of the definition of Permitted Payment) does not exceed the threshold set out in paragraph (e) of the definition of Permitted Payment;

 

(f) any acquisition by way of merger or amalgamation (provided that such acquisition is a Permitted Acquisition other than pursuant to paragraph (c) of that definition); and

 

(g) subject to Clause 24.26 (Controlled Entities Documents), any contractual arrangements, transactions or steps entered into by a Group Member for the ultimate purpose of implementing a Controlled Entities Structure.

 

Permitted Transferee means, in relation to a Transfer, any bank, financial institution, trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in syndicated loans but excluding any such entity which is, to the knowledge of such Existing Lender or Lender, a Conflicted Lender or a Distressed Investor.

 

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Permitted Treasury Transaction means:

 

(a) any hedging transaction in respect of foreign exchange and/or interest rate liabilities and/or risks relating to the Facilities (including any CBF Cash) and/or Permitted Additional Debt provided that the aggregate notional amount of such interest rate hedging or, as the case may be, the aggregate notional amount of such exchange rate hedging does not (in each case) exceed the aggregate principal amount then outstanding under the Facilities or the relevant Permitted Additional Debt or the aggregate amount of the CBF Cash (as applicable) (or, if any such excess arises, the applicable Obligor or Group Member takes prompt action to eliminate such excess, including through close-out or termination of any such hedging transaction in whole or in part);

  

(b) any Permitted Transaction;

 

(c) any Permitted Collateralised Hedging Transaction;

 

(d) spot and forward delivery foreign exchange transactions entered into in the ordinary course of business and not for speculative purposes; and

 

(e) any Treasury Transaction entered into for the hedging of actual or projected real exposures arising in the ordinary course of trading activities of a Group Member and not for speculative purposes.

 

Portfolio Company Consideration means the consideration which would be payable to the Dissenting Shareholders in respect of the Dissenting Shares under the Merger if such persons had not been Dissenting Shareholders and such shares had not been Dissenting Shares.

 

Portfolio Company Deposit has the meaning given to that term in Clause 24.36 (Portfolio Company Deposit).

 

Portfolio Company Liability means any liability arising from claims by the Dissenting Shareholders in connection with the Merger and the Dissenting Shares as determined in accordance with Section 238 of the Companies Law (2020 Revision) of the Cayman Islands.

 

Portfolio Company Premium means the amount by which the Portfolio Company Liability exceeds the Portfolio Company Consideration.

 

PRC means the People's Republic of China which, for the purpose of this Agreement, does not include Hong Kong, Macau or Taiwan.

 

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

 

Proposed Additional Facility Borrower means any person proposed to become an Additional Facility Borrower.

 

Proposed Additional Obligor means any person proposed to become an Additional Obligor.

 

Proposed Additional Security Provider means any person proposed to become an Additional Security Provider.

 

Proposed Assignment or Transfer has the meaning given to that term in Clause 22.9 (Know your customer checks).

 

Providing Party has the meaning given to that term in the definition of Confidential Information.

 

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Purchase Agent has the meaning given to that term in Clause 27.1(c)(ii).

 

Quarter Date means each of 31 March, 30 June, 30 September and 31 December.

 

Quarterly Financial Statements means the financial statements delivered pursuant to paragraph (c) of Clause 22.1 (Financial statements).

 

Quasi-Security has the meaning given to that term in Clause 24.13 (Negative pledge).

 

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

 

Receiver means a receiver or receiver and manager or administrative receiver of the whole or any part of the Charged Property.

 

Receiving Party has the meaning given to that term in the definition of Confidential Information.

 

Recipient Parties has the meaning given to that term in Clause 32.5 (Impaired Agent).

 

Recovered Amount has the meaning given to that term in Clause 31.1 (Payments to Finance Parties).

 

Recovering Finance Party has the meaning given to that term in Clause 31.1 (Payments to Finance Parties).

 

Redistributed Amount has the meaning given to that term in Clause 31.4(a).

 

Reference Bank Rate means in relation to LIBOR and any Interest Period relating thereto, the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by each of the Reference Banks in relation to LIBOR, as the rate at which that Reference Bank could borrow funds in the Relevant Interbank Market, in that currency and for that period, were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period.

 

Reference Banks means, in relation to LIBOR, the principal London office of HSBC Bank plc, Standard Chartered Bank plc, J.P. Morgan plc and Deutsche Bank, AG and such other banks as may be appointed by the Agent in consultation with the Company.

 

Refinanced Debt has the meaning given to that term in the definition of Permitted Financial Indebtedness.

 

Refinancing Debt has the meaning given to that term in the definition of Permitted Financial Indebtedness.

 

Refinancing Indebtedness has the meaning given to that term in the definition of Permitted Financial Indebtedness.

 

Register has the meaning given to that term in Clause 26.7 (The Register).

 

Reinvestment Period has the meaning given to that term in paragraph (s) of the definition of Permitted Disposal in Clause 1.1 (Definitions).

 

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Related Fund in relation to a fund (the first fund), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.

 

Relevant Annual Basket has the meaning given to that term in Clause 1.6 (Basket Increases).

 

Relevant Date means has the meaning given to that term in the definition of Change in Law

 

Relevant Financial Statements means the Annual Financial Statements, the Semi-Annual Financial Statements and the Quarterly Financial Statements (as applicable).

 

Relevant Financial Year has the meaning given to that term in the definition of Cashflow in Clause 23.1 (Financial definitions).

 

Relevant Increase has the meaning given to that term in Clause 1.6 (Basket Increases).

 

Relevant Interbank Market means in relation to LIBOR, the London interbank market. Relevant Jurisdiction means, in relation to an Obligor, the Parent or a Group Member:

 

(a) its Original Jurisdiction;

 

(b) any jurisdiction where any asset subject to or intended to be subject to the Transaction Security to be created by it is situated; and

 

(c) any jurisdiction where it conducts a material part of its business.

 

Relevant Nominating Body means any applicable central bank, regulator or other supervisory authority or a group of them, or any working group or committee sponsored or chaired by, or constituted at the request of, any of them or the Financial Stability Board.

 

Relevant Obligations has the meaning given to that term in Clause 26.6 (Procedure for assignment).

 

Relevant Period has the meaning given to that term in Clause 23.1 (Financial definitions).

 

Relevant Proposed Utilisation Date has the meaning given to that term in Clause 5.7 (Revocation).

 

Relevant Synergy has the meaning given to that term in paragraph (b) of Clause 23.3 (Financial testing).

 

Reorganisation has the meaning given to that term in the definition of Permitted Reorganisation.

 

Repayment Date means each date set out in Clause 8.1 (Repayment of Term Facility Loan).

 

Repayment Instalment means each repayment instalment for the Initial Term Facility Loan calculated and payable as set out in Clause 8.1 (Repayment of Term Facility Loan).

 

Repeating Representations means each of the representations set out in Clause 21.2 (Status) to 21.6 (Authorisations), paragraph (a) of Clause 21.10 (No default) and Clause 21.19 (Legal and beneficial ownership).

 

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Replaceable Lender means a Conflicted Lender, a Defaulting Lender, an Increased Costs Lender, an Illegal Lender, a Non-Consenting Lender, a Non-Responding Lender or a Non-Market Lender.

  

Replacement Lender has the meaning given to that term in Clause 38.5 (Replaceable Lender).

 

Reports means:

 

(a) financial and tax due diligence report dated 4 June 2020 prepared by Ernst & Young;

 

(b) commercial due diligence report dated June 2020 prepared by Bain & Company;

 

(c) legal due diligence report dated 4 June 2020 prepared by Fangda Partners;

 

(d) legal due diligence report dated 4 June 2020 prepared by Paul, Weiss, Rifkind, Wharton & Garrison LLP;

 

(e) legal due diligence report dated 5 June 2020 prepared by Maples and Calder (Hong Kong) LLP; and

 

(f) the Structure Memorandum.

 

Representative means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.

 

Request means any request for a consent, waiver, release, amendment or other vote under the Finance Documents.

 

Requested Base Currency Amount has the meaning given to that term in Clause 5.6 (Exchange rate conversion mechanics).

 

Resignation Letter means a letter substantially in the form set out in Schedule 8 (Form of Resignation Letter).

 

Restricted Payment means:

 

(a) any declaration, making or payment of any dividend, charge, fee or other distribution (or interest on any unpaid dividend, charge, fee or other distribution) (whether in cash or in kind) in each case on or in respect of any shares or equity interests (or any class of shares or equity interests);

 

(b) any repayment, return or distribution of any dividend or share premium or other reserve;

 

(c) any payment of any management, advisory or other fee to or to the order of the Company, any of the shareholders of the Company or any other Investor (or Affiliate of an Investor);

 

(d) any purchase, repurchase, redemption, reduction, retirement, acquisition, defeasance, repayment, cancellation or termination by the applicable person of any shares or equity interests in such person, or any payment (or any payment of interest on any unpaid sum relating to such payment), whether in cash or in kind (and including 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; or

 

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(e) any payment, repayment, prepayment, redemption, purchase, acquisition or defeasance (whether on account of principal, interest, fees or otherwise) on account of any Financial Indebtedness owed to any Investor (or Affiliate of an Investor that is not a Group Member) or in connection with any Parent Liabilities.

  

Retained Net Proceeds means the aggregate of any Disposal Proceeds which is not (or are not) required to be applied in prepayment of any of the Initial Term Facility, Additional Facility, any Permitted Additional Debt, Permitted PRC Indebtedness or Refinancing Indebtedness (including any Excluded Disposal Proceeds) (other than as a result of Clause 10.5 (Trapped Amounts)).

 

Revenue Collection Accounts has the meaning given to that term in Clause 24.33 (Revenue Collection Accounts).

 

Royalty Payment means any payment of any royalty, technical or other fee by a Group Member whether in connection with the use or licence of any intellectual property or otherwise, together with any Indirect Tax imposed thereon.

 

SAFE means the State Administration of Foreign Exchange of the PRC and its local branches and/or counterparts.

 

SAMR means the State Administration for Market Regulation of the PRC and its local counterparts.

 

Sanction Restricted Party means any persons or entities that are the subject of Sanctions.

 

Sanctionable Activity means any activity that could trigger a designation under existing Sanctions administered by a Sanctions Authority.

 

Sanctioned Countries means a country or territory that is the subject of Sanctions (as of the Signing Date, comprising Crimea, Cuba, Iran, North Korea, Sudan and Syria, but subject to such changes as take place over time).

 

Sanctions means any economic or financial sanctions or trade embargoes implemented, administered or enforced by the U.S. Department of Treasury's Office of Foreign Assets Control, the U.S. Departments of State or Commerce or any other US government authority, the United National Security Council, the European Union, Her Majesty's Treasury, the Department for Business, Innovation and Skills or any other UK government authority, any French government authority, the Monetary Authority of Singapore or the Monetary Authority of Hong Kong (such authorities, the Sanctions Authorities).

 

Sanctions Authorities has the meaning given to that term in the definition of Sanctions.

 

SBLC Arrangements has the meaning given to that term in the definition of Permitted Collateralised Indebtedness.

 

SBLC Bank has the meaning given to that term in the definition of Permitted Collateralised Indebtedness.

 

Screen Rate means in relation to LIBOR, the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the US Dollars and for the relevant period displayed (before any correction, recalculation or republication by the administrator) on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate), or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters. If such page or service is replaced or ceases to be available, the Agent (acting reasonably) may specify another page or service displaying the relevant rate in accordance with Clause 12.5 (Replacement of Screen Rate).

 

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Second Currency has the meaning given to that term in Clause 18.1(a).

 

Secured Liabilities has the meaning given to that term in the Intercreditor Agreement.

 

Secured Parties has the meaning given to that term in the Intercreditor Agreement.

 

Secured Receivables Financing has the meaning given to that term in the definition of Permitted Receivables Financing.

 

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 Principles means the principles set out in Schedule 11 (Security Principles).

 

Security Provider means the Company, the Parent or any Additional Security Provider.

 

Selection Notice means a notice substantially in the form set out in Part II (Selection Notice) of Schedule 3 (Requests and Notices) given in accordance with Clause 13 (Interest Periods) in relation to any Initial Facility Loan.

 

Semi-Annual Financial Statements means the financial statements delivered pursuant to paragraph (b) of Clause 22.1 (Financial statements).

 

Shareholders Agreement means the shareholders’ agreement in respect of the Parent to be dated as of the Closing Date between, amongst others, the Parent, the Founder and the Sponsors.

 

Sharing Finance Parties has the meaning given to that term in Clause 31.2 (Redistribution of payments).

 

Sharing Payment has the meaning given to that term in Clause 31.1 (Payments to Finance Parties).

 

Signing Date means the date of this Agreement.

 

Solicitation Process has the meaning given to that term in Clause 27.1 (Debt Purchase Transactions by Group Members).

 

Specified Time means a time determined in accordance with Schedule 10 (Timetables).

 

Sponsor Affiliate means:

 

(a) any Advisor, any Sponsor, each of their respective Affiliates, any trust of which any Advisor, any Sponsor or any of their respective Affiliates is a trustee, any partnership of which any Advisor, any Sponsor or any of their respective Affiliates is the general partner, the manager or any other role with similar functions and any trust, fund or other entity which is managed or is advised by, or is under the control of, any Advisor, any Sponsor or any of their respective Affiliates; and

 

(b) any person acting in concert with any party listed in paragraph (a) above,

 

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provided that any such trust, fund or other entity which has been established for the purpose of making, purchasing or investing in loans or debt securities not convertible into or exchangeable with the equity securities of an entity and which is managed or controlled independently from all other trusts, funds or other entities managed or controlled by any Advisor, any Sponsor or any of their respective Affiliates which have been established for the primary purpose or main purpose of investing in the share capital of companies, in each case, shall not constitute a Sponsor Affiliate. For the purpose of this definition, a person is acting in concert with another person if: (i) they are a shareholder in any Advisor, any Sponsor or any of their respective Affiliates; and (ii) in relation to such shareholding, they, whether pursuant to any agreement or understanding, formal or informal or otherwise, actively co-operate to obtain, maintain, consolidate or exercise control over that company or control of the voting rights attaching to their holding of shares in that company to a greater extent than would be possible by reason of their individual shareholdings alone.

  

Sponsors means funds, partnerships and/or other entities, directly or indirectly, owned, managed, controlled, under the direct or indirect common control or advised by (a) Warburg Pincus Asia LLC, General Atlantic Service Company, L.P., Ocean Link Partners II Limited, the Founder and Internet Opportunity Fund LP and any additional parties who may accede to the Interim Investor Agreement on or before the Closing Date in accordance with the terms thereof and (b) Tencent who will become a direct or indirect shareholder of the Parent on or before the Closing Date and/or any Affiliate of the foregoing.

 

Structural Adjustment means:

 

(a) the introduction of any additional tranche, commitment or facility under the Finance Documents (whether ranking junior or pari passu to any of the Facilities) (other than in respect of a Permitted Additional Debt, Permitted PRC Indebtedness or Refinancing Indebtedness);

 

(b) any increase in or addition of any commitment (other than in respect of an Additional Facility established pursuant to Clause 2.3 (Additional Facility)), any extension of the availability of any commitment;

 

(c) the re-denomination of any commitment into another currency, any extension of the date for, or maturity of, or redenomination of, or a reduction of, any amount (including any principal, interest, fee, commission or any mandatory prepayment) owing or payable under the Finance Documents;

 

(d) (unless permitted under paragraph (h) of Clause 24.29 (Conditions subsequent)) any changes to the nature or scope of any CBF Security (including any release thereof); and

 

(e) any changes to the Finance Documents (including changes to, the taking of, or the release coupled with the retaking of, any guarantee or security) that are consequential on, incidental to or required to implement or reflect any of the foregoing.

 

Structure Memorandum means the structure memorandum dated 12 June 2020 prepared by Ernst & Young incorporating transaction steps in connection with the Merger and any Permitted Reorganisation.

 

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

 

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

 

and for this purpose:

 

(i) a company, corporation or entity shall be treated as being controlled by another if that other company, corporation or entity is (A) able to direct its affairs and/or to control the majority of the composition of its board of directors or equivalent body and/or (B) able to exercise effective control over it or consolidate its financial condition or results of operation in accordance with the Accounting Principles for the purposes of the consolidated financial statements; and

 

(ii) each Controlled Entity shall be deemed to be an indirect Subsidiary of the Company.

 

Sum has the meaning given to that term in paragraph (a) of Clause 18.1 (Currency indemnity).

 

Super Majority Facility Lenders means, in respect of any Facility, a Lender or Lenders whose Commitment(s) in respect of such Facility aggregate more than 75 per cent. of the aggregate Commitments of the Lenders in respect of such Facility (or, if the aggregate Commitments of the Lenders in respect of such Facility have been reduced to zero, aggregated more than 75 per cent. of the aggregate Commitments of the Lenders in respect of such Facility immediately prior to the reduction of such aggregate Commitments in respect of such Facility to zero).

 

Super Majority Lenders means a Lender or Lenders whose Commitment(s) aggregate more than 75 per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 75 per cent. of the Total Commitments immediately prior to the reduction of the Total Commitments to zero).

 

Support Agreement has the meaning given to that term in paragraph (b) of the definition of Merger Documents in Clause 1.1 (Definitions).

 

Supporting Shareholders has the meaning given to that term in the definition of Merger Documents.

 

Target means 58.com Inc, a company incorporated in the Cayman Islands, the shares of which are listed on the New York Stock Exchange (stock code NYSE: WUBA).

 

Target Cash means the aggregate of Cash held by Target Group Members to be applied towards the purchase price payable for the Merger pursuant to the Merger Documents (other than any CBF Cash).

 

Target Group means the Target and its Subsidiaries (each a Target Group Member).

 

Target Group Member has the meaning given to that term in the definition of Target Group.

 

Tax Agreement means any bilateral Tax agreement/arrangement or mutual Tax agreement/arrangement, or any other agreement or arrangement having a similar effect, addressing the tax issues between different counties or separate customs territories or zones.

 

Tax means any tax, levy, impost, duty or other charge or withholding of a similar nature that is imposed by law or by a Governmental Agency (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).

 

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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 (other than a FATCA Deduction).

 

Tax Discount has the meaning given to that term in Clause 24.29 (Conditions subsequent).

 

Tax Payment means an increased payment made by the Company to a Finance Party under Clause 16.1 (Tax gross-up) or a payment under Clause 16.2 (Tax indemnity).

 

Tencent means Tencent Holdings Limited or any of its Affiliates.

 

Tencent Rollover Agreement means the rollover agreement dated 15 June 2020 between, among others, Ohio River Investment Limited, THL E Limited and Huang River Investment Limited in respect of the Target by which Tencent agrees to become a direct or indirect shareholder of the Target (or the surviving entity after the Merger) upon the completion of the Merger and contribute the consideration for such shareholding solely in the form of the Target shares held by Tencent immediately before the Closing Date.

 

Termination Date means:

 

(a) in respect of the Initial Term Facility, the date which is 84 Months after the Initial Utilisation Date of the Initial Term Facility;

 

(b) in respect of the Cash Bridge Facility (Tranche A), the date which is 6 Months after the Initial Utilisation Date of the Cash Bridge Facility (Tranche A);

 

(c) in respect of the Cash Bridge Facility (Tranche B), the date which is 24 Months after the Initial Utilisation Date of the Cash Bridge Facility (Tranche B); and

 

(d) in respect of any Additional Facility Commitments, the date specified in the relevant Additional Facility Notice (provided that such date is in accordance with paragraph (c) of Clause 2.3 (Additional Facility)).

 

Test Date has the meaning given to that term in Clause 23.1 (Financial definitions).

 

Third Parties Ordinance has the meaning given to that term in Clause 1.5 (Third party rights).

 

Total Additional Facility Commitments means the aggregate of the Additional Facility Commitments.

 

Total Cash Bridge Facility (Tranche A) Commitments means the aggregate of the Cash Bridge Facility (Tranche A) Commitments, being US$500,000,000 at the Signing Date.

 

Total Cash Bridge Facility (Tranche B) Commitments means the aggregate of the Cash Bridge Facility (Tranche B) Commitments, being US$1,000,000,000 at the Signing Date.

 

Total Commitments means the aggregate of the Total Initial Term Facility Commitments, the Total Cash Bridge Facility (Tranche A) Commitments, the Total Cash Bridge Facility (Tranche B) Commitments and the Total Additional Facility Commitments (only if any Additional Facility is established after the Signing Date), being US$3,500,000,000 at the Signing Date.

 

Total Debt Service has the meaning given to that term in Clause 23.1 (Financial definitions).

 

Total Initial Term Facility Commitments means the aggregate of the Initial Term Facility Commitments, being US$2,000,000,000 at the Signing Date.

 

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Total Net Debt has the meaning given to that term in Clause 23.1 (Financial definitions).

  

Total Sale means the sale of all or substantially all of the assets of the Group, whether in a single transaction or a series of related transactions.

 

Trade Instruments means any performance bonds or advance payment bonds or documentary letters of credit issued in respect of the obligations of any Group Member arising in the ordinary course of trading of that Group Member.

 

Transaction Costs means any fees and expenses incurred, or any amortisation thereof, in connection with the transaction, any Portfolio Company Liability or any liabilities arising under the Merger Documents, any acquisition (including the Merger and any Permitted Acquisitions and any join venture permitted under the Facilities Agreement), investment, asset disposal, incurrence or repayment of indebtedness, issuance of shares or other equity interests, refinancing transaction or amendment or modification of any debt instrument, in each case whether or not consummated.

 

Transaction Documents means:

 

(a) the Finance Documents;

 

(b) the Merger Documents;

 

(c) the Shareholders Agreement (but included in this definition of Transaction Documents only to the extent any provisions directly or indirectly using or referring to this definition of Transaction Documents constitute restrictions on the Parent (which are more specifically listed in Clause 1.7 (Restrictions on the Parent)); and

 

(d) and the Parent Loan Documents.

 

Transaction Security means the Security created or expressed to be created in favour of the Security Agent pursuant to the Transaction Security Documents.

 

Transaction Security Documents means:

 

(a) each Original Security Document;

 

(b) each of the documents delivered to the Agent under Clause 24.29 (Conditions subsequent); and

 

(c) any other document entered into by any Obligor, the Parent or a Group Member creating or expressed to create any Security over all or any part of its assets in respect of the obligations of any of the Obligors under any of the Finance Documents.

 

Transfer means a Debt Purchase Transaction entered into by a Lender as assignor or transferor or by way of Voting Participation.

 

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 Agent and the Company.

 

Transfer Date means, in relation to an assignment or a transfer by a Lender, the later of:

 

(a) the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate relating to such assignment or transfer; and

 

(b) the date on which the Agent executes the relevant Assignment Agreement or Transfer Certificate relating to such assignment or transfer.

 

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Treasury Transactions means any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price.

 

Unpaid Sum means any sum due and payable but unpaid by an Obligor under the Finance Documents.

 

Unused Amount has the meaning given to that term in Clause 1.6 (Basket Increases).

 

US and United States means the United States of America, its territories and possessions.

 

Utilisation means a Loan.

 

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

 

Utilisation Request means a notice substantially in the relevant form set out in Part I (Utilisation Request - Loans) of Schedule 3 (Requests and Notices).

 

Voting Participation means a Participation which involves a transfer of any voting rights, directly or indirectly, under, or in relation to, the Finance Documents (including arising as a result of being able to direct the way that another person exercises its voting rights).

 

WFOE means any Onshore Group Member that is directly and wholly-owned by an Offshore Group Member.

 

Working Capital has the meaning given to that term in Clause 23.1 (Financial definitions).

 

1.2 Construction

 

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

 

(i) the Agent, the Arranger, any Finance Party, any Hedge Counterparty, any Lender, any Obligor, the Parent, any Group Member, any Party any Secured Party, the Security Agent or any other person shall be construed so as to include its successors in title (including the surviving entity of any merger involving that person), permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents and, in the case of the Security Agent, any person for the time being appointed as Security Agent or Security Agents in accordance with the Finance Documents;

 

(ii) a document in agreed form is a document which is:

 

(A) previously agreed in writing by or on behalf of the Agent and the Company; or

 

(B) if such document is to be delivered pursuant to Clause 4.1 (Initial conditions precedent) or specified in Schedule 2 (Conditions Precedent and Conditions Subsequent), in the form in respect of which the Agent has given the notification referred to in Clause 4.1 (Initial conditions precedent);

 

(iii) an amendment includes any amendment, supplement, variation, novation, modification, replacement or restatement (however fundamental), and amend and amended shall be construed accordingly;

 

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(iv) assets includes properties, assets, businesses, undertakings, revenues and rights of every kind (including uncalled share capital), present and future, actual or contingent and any interest in any of the foregoing;

 

(v) a Finance Document or a Transaction Document or any other agreement or instrument is (unless expressed to be a reference to such document, agreement or instrument in its original form or form as at a particular date) a reference to that Finance Document or Transaction Document or other agreement or instrument as amended, novated, supplemented, extended or restated (however fundamentally and whether or not more onerously) or replaced and includes any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under that Finance Document or other agreement or instrument (in any other manner whatsoever) and including any waiver or consent granted in respect of any term of any Finance Document or Transaction Document from time to time;

 

(vi) a finance lease or a capital lease is any lease which would, in accordance with IAS 17 (Leases) (or any equivalent measure under GAAP), be treated as a finance or capital lease but, for the avoidance of doubt, shall exclude any lease, concession, license of property or other arrangement (or guarantee thereof) which would be considered an operating lease under IAS 17 (Leases) (or any equivalent measure under GAAP) and which is subsequently treated as a finance or capital lease as a result of any change to the treatment of such leases or other arrangements under the Accounting Principles and operating lease will be construed accordingly as any lease which is not a finance lease or capital lease;

 

(vii) a consent includes an authorisation, permit, approval, consent, exemption, licence, order, filing, registration, recording, notarisation, permission or waiver;

 

(viii) a disposal includes any sale, transfer, grant, lease, licence or other disposal, whether voluntary or involuntary, and dispose will be construed accordingly;

 

(ix) a group of Lenders includes all the Lenders or another subset of the Lenders as appropriate;

 

(x) guarantee means any guarantee, counter-indemnity, letter of credit, bond, indemnity or similar assurance against loss in respect of any indebtedness of any other person 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;

 

(xi) indebtedness includes any obligation (whether incurred as principal or as guarantor or surety) for the payment or repayment of money, whether present or future, actual or contingent (but shall not include deposits held on behalf of clients);

 

(xii) losses includes losses, actions, damages, claims, proceedings, costs, demands, expenses (including legal and other fees) and liabilities of any kind, and loss shall be construed accordingly;

 

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(xiii) a person includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, fund, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);

 

(xiv) a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but, if not having the force of law, one with which entities to which the same applies customarily comply) of any governmental, intergovernmental or supranational body, agency or department or of any regulatory, self-regulatory or other authority or organisation;

 

(xv) signed communications, documents or notices refers to written communication, documents or notices that carry a manuscript, or a digital or electronic copy of a manuscript, signature, and signature shall be construed accordingly;

 

(xvi) a sub-participation means any sub-participation or sub-contract (whether written or oral) or any other agreement or arrangement having an economically substantially similar effect, including any credit default or total return swap or derivative (whether disclosed, undisclosed, risk or funded) by a Lender of or in relation to any of its rights or obligations under, or its legal, beneficial or economic interest in relation to, the Facilities and/or Finance Documents to a counterparty;

 

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

 

(xviii) a time of day is a reference to Hong Kong time; and

 

(b) Any reference in this Agreement to including (or similar expressions) means including, without limitation and includes and included shall be interpreted accordingly.

 

(c) The equivalent of an amount (expressed in US$) in a currency other than US$ shall, at any time (but without prejudice to Clause 23.4 (Exchange rates)), be the amount in such other currency that could purchase such first-mentioned amount in US$ at that time based on the Agent's Spot Rate of Exchange from such other currency to US$ at that time.

 

(d) The Parent, an Obligor or a Group Member will only be aware of a fact, event or circumstance to the extent that such Obligor or Group Member has Knowledge of such fact, event or circumstance.

 

(e) Any obligation of the Parent, any Obligor or Group Member to make due and careful enquiry shall be satisfied by such due and careful enquiry being made by it through its directors or other equivalent officers as is practicable in the circumstances.

 

(f) Unless a contrary indication appears, a reference in Clause 16 (Tax Gross-Up and Indemnities) to determines or determined (or any similar expression) means a determination made by the person making such determination in good faith.

 

(g) Other than in respect of the financial covenants in Clause 23 (Financial Covenants), for the purposes of determining compliance with any basket amount, threshold and any other exceptions to any undertaking under Clause 24 (General Undertakings) and any Event of Default under Clause 25 (Events of Default), the equivalent to any amount in US dollars shall be determined as at the time of the applicable incurrence, disposal, acquisition, investment, lease, loan, guarantee or other relevant action.

 

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(h) No breach of any representation under Clause 21 (Representations), any undertaking under Clause 24 (General Undertakings) or Event of Default under Clause 25 (Events of Default) shall arise merely as a result of a subsequent change in the US dollar equivalent of any amount due to fluctuation in exchange rates (except that compliance with financial covenants in Clause 23 (Financial Covenants) as at any Test Date or in respect of any Relevant Period shall be determined using the applicable exchange rates specified in Clause 23.4 (Exchange rates)).

 

(i) Any calculation or determination to be made on a pro forma basis will be made after taking into account any applicable adjustments pursuant to paragraphs (b), (c) and (d) of Clause 23.3 (Financial testing) assuming the relevant Groups Initiative, incurrence, assumption or repayment of Financial Indebtedness had accrued at the beginning of the applicable Most Recent Relevant Period.

 

(j) The determination of the extent to which a rate is for a period equal in length to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.

 

(k) Section, Clause and Schedule headings are for ease of reference only.

 

(l) 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.

 

(m) A Default (including, for the avoidance of doubt, an Event of Default and a Major Default or Major Event of Default) is continuing if it has not been remedied or waived.

 

(n) A Default, an Event of Default or a Major Default will be remedied (and cease to be continuing) where the underlying circumstances giving rise to the Default or Event of Default or a Major Default (as the case may be) cease to exist or where actions have been taken which have addressed the underlying circumstances in each case with the effect that those underlying circumstances (after giving effect to the taking of such actions) no longer constitute a Default or an Event of Default or a Major Default (as the case may be), provided that if an Acceleration Event has occurred, then such Event of Default is no longer capable of being remedied and will be continuing unless it has been waived.

 

(o) An Acceleration Event is continuing if the relevant Acceleration Event has occurred and the underlying notice of acceleration has not been withdrawn by the Agent.

 

(p) In addition to paragraph (n) above, and subject to paragraph (n) above, if a Default (including an Event of Default and a Major Default) occurs for a failure to deliver a required certificate, notice or other document in connection with another default (an Initial Default) then at the time such Initial Default is remedied or waived, such Default (including an Event of Default and a Major Default) for a failure to report or deliver a required certificate, notice or other document in connection with the Initial Default will also be cured without any further action. Any Default (including an Event of Default and a Major Default) for the failure to comply with the time periods prescribed in Clause 22 (Information Undertakings), or otherwise to deliver any notice, certificate or other document, as applicable, even though such delivery is not within the prescribed period specified in this Agreement or any other Finance Document, shall be deemed to be cured upon the delivery of any such report required by such covenant or notice, certificate or other document, as applicable, even though such delivery is not within the prescribed period specified in this Agreement or any other Finance Document.

 

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(q) references to any matter being permitted shall include references to such matters not being expressly prohibited by the Finance Documents or otherwise approved by the requisite Lenders.

 

(r) If and to the extent that the Majority Lenders or Super Majority Lenders are required to act reasonably under the terms of a Finance Document with respect to any matter, each Lender must act reasonably with respect to such matter.

 

(s) Notwithstanding any other provision of any Finance Document, none of the steps, transactions, reorganisations or events set out or described in, or contemplated by, the Structure Memorandum or the actions or intermediate steps necessary to implement any of those steps, actions or events (in each case other than the incurrence of indebtedness or the granting of security) shall constitute a breach of any representation or warranty, a breach of any undertaking or otherwise result in the occurrence of a Default or an Event of Default under a Finance Document and shall be expressly permitted under the terms of this Agreement and the other Finance Documents.

 

(t) In ascertaining the Majority Lenders or whether any given percentage of the Total Commitments has been obtained to approve any request for a consent, waiver, amendment or other vote under the Finance Documents or for the purpose of the allocation of any repayment or prepayment or for the purposes of taking any step, decision, direction or exercise of discretion which is calculated by reference to drawn amounts any Commitments not denominated in the Base Currency (Non-Base Currency Commitments) shall be deemed to be converted into the Base Currency at the Agent’s Spot Rate of Exchange on the date on which that Commitment was provided under this Agreement.

 

(u) Reference to the weighted average life of the Initial Term Facility shall be calculated on the basis of the period from the first drawdown or utilisation of the Initial Term Facility to the last scheduled repayment of the Initial Term Facility and the remaining weighted average life of the Initial Term Facility shall be calculated on the basis of the period from the date of calculation to the last scheduled repayment of the Initial Term Facility, provided that, in each case, if the Initial Term Facility has not been utilised at the date of calculation then it will be ignored for the purposes of this calculation.

 

1.3 Currency symbols and definitions

 

Any reference in this Agreement to RMB is to the lawful currency of the PRC, HKD is to the lawful currency of Hong Kong and US$ and US dollars is to the lawful currency of the United States of America.

 

1.4 Intercreditor Agreement

 

This Agreement is subject to, and has the benefit of, the Intercreditor Agreement. In the event of any inconsistency between this Agreement and the Intercreditor Agreement, the Intercreditor Agreement shall prevail.

 

1.5 Third party rights

 

(a) Unless expressly provided to the contrary in a Finance Document a person who is not a Party has no right under the Contracts (Rights of Third Parties) Ordinance (Cap. 623) (the Third Parties Ordinance) to enforce or enjoy the benefit of any term of this Agreement.

 

(b) Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.

 

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1.6 Basket Increases

 

(a) If:

 

(i) as shown by the most recent Compliance Certificate delivered with the Annual Financial Statements, Adjusted EBITDA exceeds EBITDA by reference to the Base Case Model; and/or

 

(ii) (without double-counting) any Group Member makes any Permitted Acquisition and on the last day of the Financial Year in which completion of that Permitted Acquisition occurs, such Permitted Acquisition results in Adjusted EBITDA exceeding EBITDA (immediately prior to any adjustment resulting from that Permitted Acquisition),

 

(in each case calculated in accordance with Clause 23 (Financial Covenants) and the proportion by which (i) Adjusted EBITDA exceeds EBITDA by reference to the Base Case Model or (ii) Adjusted EBITDA exceeds EBITDA solely as a result of that Permitted Acquisition being the Relevant Increase and shown in the most recent Compliance Certificate delivered with the Annual Financial Statements) each of the baskets (including all "Financial Year", "life of Facilities" and "at any time" and "aggregate" baskets) for which a specific amount is set out in this Agreement and any definitions used therein (including the definitions of Permitted Business Acquisition, Permitted Disposal (but excluding the General Reinvestment Basket), Permitted Financial Indebtedness, Permitted Guarantee, Permitted Loan, Permitted Sale and Leaseback, and Permitted Security (each, Permitted Basket) but excluding Permitted Payment) shall be permanently increased by the same percentage as the Relevant Increase. The Company may re-designate the Relevant Increase between each of the baskets within each Permitted Basket (which appear in the same provision or the same definition (including the definition of Permitted Business Acquisition, Permitted Disposal (but excluding the General Reinvestment Basket), Permitted Financial Indebtedness, Permitted Guarantee, Permitted Loan, Permitted Sale and Leaseback and Permitted Security)) at its sole discretion.

 

(b) For any relevant basket set by reference to a fixed period (including a Financial Year), at the option of the Company, the maximum amount permitted during such fixed period (the Relevant Annual Basket) may be increased by an amount equal to the difference (if positive) between the Relevant Annual Basket for the immediately preceding fixed period and the amount thereof actually used or applied by the Group during such preceding fixed period (the Unused Amount). Any Unused Amount carried forward will be deemed to be utilised prior to the Relevant Annual Basket for the then current fixed period.

 

(c) For any relevant basket set by reference to a fixed period (including a Financial Year), at the option of the Company, not more than 50 per cent. of the Relevant Annual Basket for the immediately following fixed period may be carried back to the then current fixed period, and the Relevant Annual Basket for the immediately following fixed period shall be decreased by an amount equal to such amount being carried back.

 

(d) In the event that any amount or transaction meets the criteria of more than one of the baskets or exceptions set out within a single “Permitted” definition in this Agreement, the Company, in its sole discretion, will classify and may from time to time reclassify that amount or transaction to a particular basket or exception and will only be required to include that amount or transaction in one of those baskets or exceptions (and, for the avoidance of doubt, an amount or transaction may at the option of the Company be split between different baskets or exceptions).

 

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(e) For any relevant basket set by reference to a Financial Year, in respect of any period that is shorter than one Financial Year to which such basket should have been applicable, such basket shall be adjusted to be equal to the product of the amount of such basket and the fraction borne by the number of days in such period (as the numerator) to 360 (as the denominator).

 

1.7 Restrictions on the Parent

 

Notwithstanding any other provision of the Finance Documents to the contrary, no restriction in any provision of Clause 24 (General Undertakings) shall be applicable to the Parent other than in respect of:

 

(a) Clause 24.1 (Authorisations);

 

(b) Clause 24.5 (Merger);

 

(c) Clause 24.9 (Holding Companies);

 

(d) Clause 24.11 (Pari passu ranking);

 

(e) Clause 24.13 (Negative pledge);

 

(f) Clause 24.14 (Disposals) (with respect to its shares in and shareholder loans to the Company only);

 

(g) Clause 24.27 (Further assurance); and

 

(h) Clause 24.28 (Anti-corruption, anti-money laundering and sanctions).

 

1.8 Exchange rate fluctuations

 

(a) Subject to paragraph (c) below, when applying any monetary limits, thresholds and other exceptions to the representations and warranties, undertakings and Events of Default under the Finance Documents, the equivalent to an amount in the Base Currency shall be calculated at the rate for the conversion of the Base Currency into the relevant currency of the non-base currency monetary limit, threshold and other exception which would have been used had an audited consolidated balance sheet of the Group been prepared in accordance with the Accounting Principles, or at the option of the Company at the Agent’s Spot Rate of Exchange, in each case, as at the date of the Group incurring or making the relevant disposal, acquisition, investment, lease, loan, debt or guarantee or taking any other relevant action.

 

(b) Subject to paragraph (c) below, no Event of Default or breach of any representation and warranty or undertaking under this Agreement or the other Finance Documents shall arise merely as a result of a subsequent change in the Base Currency equivalent or any other currency specified for any basket due to fluctuations in currency exchange rates.

 

(c) Paragraphs (a) and (b) above shall not apply to or in respect of the calculation or for the purpose of testing any financial covenant under Clause 23 (Financial Covenants).

 

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1.9 Excluded Matters

 

Prior to the Closing Date (and subject at all times to Clause 4.3 (Certain Funds Utilisation)), no breach of Clause 21 (Representations) to Clause 24 (General Undertakings) (both inclusive) or other term of (or actual or potential Event of Default (however so described) under) any document relating to the existing financing arrangements of any member of the Target Group shall constitute a breach of Clause 21 (Representations) to Clause 24 (General Undertakings) (both inclusive) in this Agreement or any of the other Finance Documents or result in the occurrence of an actual or potential Event of Default.

 

1.10 Personal liability

 

No director, officer, employee or other individual acting (or purporting to act) on behalf of an Investor Affiliate, the Parent, the Company or any Group Member (or any Affiliate of any of the foregoing) shall be personally liable for any representation, certification or statement made or deemed to be made by him or her, an Investor Affiliate, the Parent, the Company or any Group Member in any Finance Document or any certificate, notice or other document required to be delivered under, or in connection with, any Finance Document, whether or not signed by that director, officer, employee or other individual, save in the case of fraud, or intention to mislead (in which case any liability shall be determined in accordance with applicable law) and each such individual may rely on this Clause subject to Clause 1.5 (Third party rights) and the provisions of the Third Parties Ordinance .

 

1.11 No Investor Affiliate Recourse

 

Subject to Clause 1.10 (Personal liability), no Finance Party will have any recourse to any Investor Affiliate (excluding the Parent and any Group Member but, in respect of the Parent, on a limited recourse basis and with respect to assets the subject of security only) in respect of any term of any Finance Document, any statements by Investor Affiliates, or otherwise.

 

1.12 Management amendments

 

Each Finance Party acknowledges and agrees that this Agreement and the other Finance Documents (including without limitation, representations, warranties, undertakings, financial covenants and Events of Default, and related baskets and thresholds) have been negotiated without full access to the management of the Target Group. The Finance Parties shall negotiate in good faith any amendments, variations or supplements to this Agreement or any other Finance Document to the extent reasonably requested prior to the Initial Utilisation Date by the Target Group for the anticipated operational requirements and flexibilities of the Group in respect of such provisions and the other terms and conditions contained in such documentation following the Closing Date.

 

2 The Facilities

 

2.1 The Initial Facilities

 

Subject to the terms of this Agreement:

 

(a) the Initial Term Facility Lenders make available to the Company a US$ term loan facility in an aggregate amount equal to the Total Initial Term Facility Commitments;

 

(b) the Cash Bridge Facility (Tranche A) Lenders make available to the Company a US$ offshore cash bridge facility in an aggregate amount equal to the Total Cash Bridge Facility (Tranche A) Commitments; and

 

(c) the Cash Bridge Facility (Tranche B) Lenders make available to the Company a US$ or RMB (as selected by the Company in accordance with Clause 5.8 (Selection of currency for Cash Bridge Facility (Tranche B) Loan) offshore cash bridge facility in an aggregate amount (subject to Clause 5.6 (Exchange rate conversion mechanics), if applicable) equal to the Total Cash Bridge Facility (Tranche B) Commitments.

 

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2.2 Increase - Cancelled Commitments

 

(a) The Company may by giving prior notice to the Agent by no later than the date falling 20 Business Days after the effective date of a cancellation of the Available Commitment or the Commitment (in respect of any Facility) of an Illegal Lender in accordance with Clause 9.1 (Illegality) or a Replaceable Lender in accordance with paragraph (b) of Clause 38.5 (Replaceable Lender) (such Available Commitment or Commitment so cancelled being the Cancelled Commitment) request that the Total Commitments be increased (and the Commitments under that Facility shall be so increased) by an aggregate amount in US$ (or its equivalent) of up to the amount of the Cancelled Commitment as follows:

 

(i) such increased Commitments under that Facility will be assumed by one or more Lenders or persons (other than a Group Member) (each an Increase Lender) selected by the Company each of which confirms its willingness to assume and does assume all the obligations of a Lender corresponding to that part of such increased Commitments under that Facility which it is to assume (the Assumed Commitment of such Increase Lender), as if it had been an Original Lender;

 

(ii) each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had that Increase Lender been an Original Lender (with the Assumed Commitment in respect of such Increase Lender, in addition to any other Commitment which such Increase Lender may otherwise have in accordance with this Agreement);

 

(iii) each Increase Lender shall become a Party as a Lender and any Increase Lender (with the Assumed Commitment in respect of such Increase Lender, in addition to any other Commitment which such Increase Lender may otherwise have in accordance with this Agreement) and each of the other Finance Parties and Hedge Counterparties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties and Hedge Counterparties would have assumed and/or acquired had the Increase Lender been an Original Lender;

 

(iv) the Commitments of the other Lenders shall continue in full force and effect; and

 

(v) such increase in the Commitments under that Facility shall take effect on the later of (1) the date specified by the Company in the notice referred to above or (2) any later date on which the conditions set out in paragraph (b) below are satisfied in respect of such increase.

 

(b) An increase in the Commitments under any Facility pursuant to this Clause 2.2 will only be effective on:

 

(i) the execution by the Agent of an Increase Confirmation - Cancelled Commitments from each relevant Increase Lender in respect of such increase which the Agent shall execute promptly on request; and

 

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(ii) in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase:

 

(A) that Increase Lender entering into the documentation required for it to accede as a party to the Intercreditor Agreement; and

 

(B) the Agent being satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assumption of the Assumed Commitments by that Increase Lender. The Agent shall promptly notify the Company and the Increase Lender upon being so satisfied.

 

(c) Each Increase Lender, by executing an Increase Confirmation - Cancelled Commitments, confirms that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase in Commitments (to which such Increase Confirmation - Cancelled Commitments relates) becomes effective.

 

(d) The Company shall promptly on demand pay the Agent and the Security Agent the amount of all costs and expenses (including legal fees) reasonably incurred by either of them and, in the case of the Security Agent, by any Receiver or Delegate in connection with any increase in Commitments under this Clause 2.2.

 

(e) An Increase Lender shall, on the date upon which its assumption of any Assumed Commitment takes effect, pay to the Agent (for its own account) a fee in an amount equal to the fee which would be payable under Clause 26.3 (Assignment or transfer fee) if such assumption was a transfer pursuant to Clause 26.5 (Procedure for transfer) and if the Increase Lender was a New Lender.

 

(f) The Company may pay to an Increase Lender a fee in the amount and at the times agreed between the Company and that Increase Lender in a Fee Letter.

 

(g) Clause 26.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to an Increase Lender as if references in that Clause to:

 

(i) an Existing Lender were references to all the Lenders immediately prior to the relevant increase in Commitments;

 

(ii) the New Lender were references to that Increase Lender; and

 

(iii) a re-transfer and re-assignment were references to, respectively, a transfer and assignment.

 

2.3 Additional Facility

 

(a) Subject to this Clause 2.3, the Company may, at any time and from time to time following the Closing Date, by delivering to the Agent and the Security Agent a duly completed Additional Facility Notice signed by an Authorised Signatory and complying with paragraphs (b) and (c) below, establish an Additional Facility by way of (i) the introduction of a new additional commitment or facility as a Facility under this Agreement or (ii) as an additional tranche of or increase in an existing Facility (including any previously incurred Additional Facility) under this Agreement.

 

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(b) No consent of any Finance Party is required to establish an Additional Facility at any time (other than, in relation to an Additional Facility, the relevant Additional Facility Lenders) provided that the Financial Indebtedness under such Additional Facility constitutes Permitted Additional Debt and is designated as "Senior Lender Liabilities" as defined in and for the purposes of the Intercreditor Agreement.

 

(c) Each Additional Facility Notice shall not be regarded as having been duly completed unless it is signed by the Company and each party thereto and specifies the following matters in respect of such Additional Facility:

 

(i) the proposed borrower(s) (which, if not a Borrower, shall accede in accordance with Clause 28 (Changes to the Obligors)) in respect of the Additional Facility;

 

(ii) the person(s) to become Additional Facility Lenders (which shall not be a Group Member) in respect of the Additional Facility and the amount of the commitments of such Additional Facility allocated to each Additional Facility Lender (and whether such Lender is a Sponsor Affiliate);

 

(iii) the aggregate amount of the commitments of the Additional Facility and the currency being made available and any other or optional currency or currencies which are available for utilisation under such Additional Facility;

 

(iv) the purpose and permitted usage of such Additional Facility and any additional conditions to drawdown of such Additional Facility (which may be as agreed between the Company and the Additional Facility Lenders providing that Additional Facility), including any applicable certain funds period and related conditions;

 

(v) the rate of interest applicable to the Additional Facility (including any applicable margin, basis, floor and/or margin ratchet) and commitment fee and other fees payable in respect of that Facility;

 

(vi) the Additional Facility Commencement Date and Availability Period for the Additional Facility;

 

(vii) the Termination Date, repayment profile, amortisation schedule and any mandatory prepayment provisions; and

 

(viii) each of the requirements of paragraph (b) above and confirmation of each of the conditions set out in paragraph (b) above are satisfied; and

 

such Additional Facility Notice shall be deemed to have been duly completed if it is signed by each party thereto and specifies the matters in paragraphs (c)(i) to (c)(viii) above in respect of such Additional Facility, and prior to the applicable Additional Facility Commencement Date, without prejudice to the rights of the Agent to request any other information which the Agent or Security Agent may reasonably require in relation to such Additional Facility provided that where the Additional Facility is an additional tranche or class of, or an increase of, or an extension of, any existing Facility or a previously incurred Additional Facility (the Original Facility), then the terms applicable to that Additional Facility set out in paragraph 2 of the Additional Facility Notice shall be the same as those applicable to the Original Facility (other than the identity of the Additional Facility Lenders and the amount of the Additional Facility Commitment).

 

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(d) Subject to the conditions set out in paragraphs (b) and (c) of this Clause 2.3 being satisfied, following receipt by the Agent of a duly completed Additional Facility Notice and with effect from the relevant Additional Facility Commencement Date (or any later date on which the conditions set out in paragraph (e) below are satisfied) the relevant Additional Facility shall come into effect and be established in accordance with its terms and:

 

(i) the Additional Facility Lenders participating in the relevant Additional Facility shall make available that Additional Facility in the aggregate amount set out in the Additional Facility Notice;

 

(ii) each of the Obligors and each Additional Facility Lender shall assume such obligations towards one another and/or acquire such rights against one another as the Obligors and such Additional Facility Lenders would have assumed and/or acquired had the Additional Facility Lenders been Original Lenders;

 

(iii) in relation to an Additional Facility Lender which is not already a Lender, each Additional Facility Lender under the relevant Additional Facility shall become a Party to this Agreement as a Lender;

 

(iv) each Additional Facility Lender under the relevant Additional Facility and each of the other Finance Parties shall assume such obligations towards one another and acquire such rights against one another as those Additional Facility Lenders and those Finance Parties would have assumed and/or acquired had the Additional Facility Lenders been Original Lenders in respect of the relevant Additional Facility; and

 

(v) the Commitments of the other Lenders shall continue in full force and effect.

 

(e) The establishment of an Additional Facility will only be effective on:

 

(i) the execution of the Additional Facility Notice relating to such Additional Facility by the Company, the relevant Borrower(s) and the relevant Additional Facility Lender(s) and delivery of such executed notice to the Agent;

 

(ii) in relation to an Additional Facility Lender which is not already a Lender, receipt by the Agent of an Additional Facility Lender Accession Notice from each person referred to in the relevant Additional Facility Notice as an Additional Facility Lender and the accession of each Additional Facility Lender to the Intercreditor Agreement as a "Senior Lender" (as defined in the Intercreditor Agreement); and

 

(iii) in relation to an Additional Facility Lender which is not already a Lender, the performance by the Agent of all necessary know your customer or other similar checks under all applicable laws and regulations in relation to that Additional Facility Lender making available an Additional Facility, the completion of which the Agent shall promptly notify to the Company,

 

no Utilisation Request in relation to an Additional Facility shall be valid unless prior to (or simultaneously with) the delivery of the relevant Utilisation Request in relation to such Additional Facility, the requirements of this Clause 2.3 have been satisfied.

 

(f) Each Obligor and the Parent:

 

(i) irrevocably authorises the Company to sign each Additional Facility Notice and to agree, implement and establish Additional Facilities in accordance with this Agreement on its behalf; and

 

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(ii) confirms that all Transaction Security granted by it, subject only to any Accession Deed pursuant to which it became an Obligor or the terms of the Transaction Security Documents, will extend to include the Additional Facility Loans and any other obligations arising under or in respect of the Additional Facility Commitments.

 

(g) Each Party irrevocably authorises, empowers and instructs:

 

(i) the Agent to acknowledge, execute and confirm acceptance of each Additional Facility Notice;

 

(ii) the Agent and the Security Agent to acknowledge, execute and confirm acceptance of each Additional Facility Lender Accession Notice and if applicable, the documentation required for the Additional Facility Lender to accede to the Intercreditor Agreement; and

 

(iii) the Agent and the Security Agent to execute any necessary amendments, confirmations, supplements or revisions to this Agreement, the Transaction Security Documents and any other Finance Documents as may be required in order to ensure that any Additional Facility, if legally possible, ranks pari passu with the other Facilities and that the Transaction Security is shared pari passu between the Secured Parties.

 

(h) The Agent and/or the Security Agent shall as soon as reasonably practicable send to the Company a copy of each executed Additional Facility Notice and, if applicable, Additional Facility Lender Accession Notice and if applicable, the documentation required for the Additional Facility Lender to accede to the Intercreditor Agreement.

 

(i) By signing an Additional Facility Notice as an Additional Facility Lender, each such entity agrees to commit the Additional Facility Commitments set out against its name in that notice and, in the case of an entity which is not already a party to this Agreement as a Lender, become a Lender and a Party to this Agreement and to the Intercreditor Agreement.

 

(j) Notwithstanding any provision of a Finance Document to the contrary, there shall be no obligation or requirement to enter into any hedging arrangement or other derivative transaction in relation to any Additional Facility.

 

(k) Each Additional Facility Lender, by executing the relevant Additional Facility Notice confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any consent, release, waiver or amendment that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the relevant Additional Facility becomes effective and that it is bound by that decision and by the operations of any other provisions of this Agreement in relation to such consent, release, waiver or amendment.

 

(l) No Lender will have any obligation to participate in an Additional Facility (unless it has executed and delivered an Additional Facility Lender Accession Notice or otherwise become an Additional Facility Lender in respect of that Additional Facility). By signing an Additional Facility Notice as an Additional Facility Lender, each such entity agrees to commit the Additional Facility Commitments set out against its name in that Additional Facility Notice.

 

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(m) The Agent may, and is authorised to, disclose the terms of any Additional Facility Notice to any of the other Finance Parties and will do so promptly upon request by the Company or other Finance Parties.

 

(n) Clause 26.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.3 in relation to an Additional Facility Lender as if references in that Clause to:

 

(i) an Existing Lender were references to all the Lenders immediately prior to the establishment of the relevant Additional Facility;

 

(ii) the New Lender were references to that Additional Facility Lender; and

 

(iii) a re-transfer and re-assignment were references to respectively a transfer and assignment.

 

(o) The Company may pay to an Additional Facility Lender a fee in the amount and at the times agreed between the Company and the Additional Facility Lender in a Fee Letter.

 

(p) The establishment, terms or conditions or use of proceeds of any Additional Facility shall be governed by this Clause 2.3 which shall apply irrespective of and notwithstanding any other provision of this Agreement and, except to the extent as provided in this Clause 2.3, the terms applicable to any Additional Facility will be those agreed by the Additional Facility Lenders in respect of that Additional Facility and the Company and set out in the applicable Additional Facility Notice, provided that:

 

(i) if there is any inconsistency between any such term agreed in respect of an Additional Facility and any term of a Finance Document, the term agreed in respect of the Additional Facility shall prevail with respect to such Additional Facility (subject to the other terms and conditions of this Clause 2.3);

 

(ii) unless otherwise specified in the applicable Additional Facility Notice, the terms of any Additional Facility shall be the same as the terms given to the Initial Term Facility under this Agreement;

 

(iii) the provisions of this Agreement will apply to each Additional Facility and the provisions of Clause 4 (Conditions of Utilisation) and Clause 5 (Utilisation - Loans) will apply to all Utilisations of any Additional Facility, provided that no Utilisation Request in relation to an Additional Facility shall be valid unless prior to (or simultaneously with) such Utilisation Request being delivered the requirements of this Clause 2.3 have been satisfied; and

 

(iv) any Additional Facility shall rank pari passu with the other Facilities and the terms of and treatment given to such Additional Facility, shall not be more favourable or advantageous to the lenders of such Additional Facility than the Initial Term Facility (save as contemplated by paragraph (c) above).

 

2.4 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 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 the Finance Documents.

 

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(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 the Finance Documents to a Finance Party from an Obligor is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party's participation in a Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor.

 

(c) A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.

 

2.5 Obligors' Agent

 

(a) Each Obligor (other than the Company) and the Parent by its execution of this Agreement or an Accession Deed irrevocably appoints the Company to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:

 

(i) the Company on its behalf to supply all information concerning itself contemplated by any Finance Document to the Finance Parties and to give all notices and instructions, to execute on its behalf any Accession Deed, to make such agreements and to effect all amendments, supplements and variations capable of being given, made or effected by any Obligor or the Parent notwithstanding that they may affect that Obligor or the Parent (as the case may be), without further reference to or the consent of that Obligor or the Parent (as the case may be); and

 

(ii) each Finance Party to give any notice, demand or other communication to that Obligor or the Parent (as the case may be) pursuant to the Finance Documents to the Company,

 

and in each case that Obligor or the Parent (as the case may be) shall be bound as though that Obligor or the Parent (as the case may be) itself had supplied such information, given such notices and instructions, executed such Accession Deed, made such agreements, effected such amendments, supplements and variations and received such relevant notice, demand or other communication.

 

(b) Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Obligors' Agent or given to the Obligors' Agent under any Finance Document on behalf of another Obligor or the Parent (as the case may be) or in connection with any Finance Document (whether or not known to any other Obligor or the Parent (as the case may be) and whether occurring before or after such other Obligor or the Parent (as the case may be) became an Obligor or the Parent (as the case may be) under any Finance Document) shall be binding for all purposes on that Obligor or the Parent (as the case may be) as if that Obligor, the Parent (as the case may be) had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Obligors' Agent and any other Obligor or the Parent (as the case may be), those of the Obligors' Agent shall prevail.

 

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3 Purpose

 

3.1 Purpose

 

(a) The Company shall apply all amounts borrowed by it:

 

(i) under the Initial Term Facility towards financing or refinancing (directly or indirectly):

 

(A) the purchase price payable for the Merger pursuant to the Merger Documents; and/or

 

(B) payment (or reimbursement) of Merger Costs; and

 

(ii) under each Cash Bridge Facility towards financing or refinancing (directly or indirectly):

 

(A) the purchase price payable for the Merger pursuant to the Merger Documents; and/or

 

(B) payment (or reimbursement) of Merger Costs,

 

in each case as described in the Funds Flow Statements.

 

(b) Each Additional Facility Borrower shall apply all amounts borrowed by it under an Additional Facility towards the purposes specified in the Additional Facility Notice relating to the relevant Additional Facility Commitments.

 

3.2 Monitoring

 

No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.

 

4 Conditions of Utilisation

 

4.1 Initial conditions precedent

 

The Lenders will only be obliged to comply with Clause 5.4 (Lenders’ participation) in relation to any Utilisation if the Agent has, on or prior to the Initial Utilisation Date, received (or the Arranger or the Agent has waived the requirement to receive) all of the documents and other evidence listed in Part I (Conditions Precedent to Initial Utilisation) of Schedule 2 (Conditions Precedent and Conditions Subsequent), in form and substance satisfactory to the Agent (acting reasonably). The Agent shall notify the Company and the Lenders promptly upon being so satisfied.

 

4.2 Further conditions precedent

 

The Lenders will only be obliged to comply with Clause 5.4 (Lenders’ participation) in relation to an Additional Facility Loan under any Additional Facility if the conditions to making of such Additional Facility Loan as specified in the Additional Facility Notice relating to such Additional Facility are satisfied (or waived in accordance with the terms of such Additional Facility).

 

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4.3 Certain Funds Utilisation

 

(a) Subject to Clause 4.1 (Initial conditions precedent), during the applicable Certain Funds Period, the Lenders will only be obliged to comply with Clause 5.4 (Lenders’ participation) in relation to a Certain Funds Utilisation if, on the date of the Utilisation Request and on the proposed Utilisation Date:

 

(i) in respect of an Initial Facility, no Certain Funds Event has occurred and is continuing; and

 

(ii) in respect of an Additional Facility, the Company and the relevant Additional Facility Lenders have agreed that the relevant Additional Facility shall be made on a "certain funds basis" for a specified purpose in connection with a Permitted Acquisition or such other agreed purpose for such period and on such terms or conditions (if any) as the Company and those relevant Additional Facility Lenders shall agree and notify in writing to the Agent at least three Business Days (or such shorter period agreed with the Agent) prior to the date of the Utilisation Request.

 

(b) During the Certain Funds Period (save in circumstances where, pursuant to paragraph (a) of this Clause 4.3 above, a Lender is not obliged to comply with Clause 5.4 (Lenders’ participation) with respect to Certain Funds Utilisations), none of the Finance Parties shall be entitled to:

 

(i) cancel any of its Commitments to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;

 

(ii) rescind, terminate or cancel this Agreement or the Facilities or exercise any similar right or remedy or make or enforce any claim under the Finance Documents it may have to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;

 

(iii) refuse to participate in the making of a Certain Funds Utilisation;

 

(iv) exercise any right of set-off or counterclaim in respect of a Utilisation to the extent to do so would prevent or limit the making of a Certain Funds Utilisation; or