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51job, Inc.
Building 3, No. 1387 Zhang Dong Road Shanghai 201203 People’s Republic of China Tel: +86 21 6160 1888 |
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Garnet Faith Limited
DCP Capital Partners II, L.P. Oriental Poppy Limited c/o DCP Capital 21/F, York House, The Landmark 15 Queen’s Road, Central Hong Kong Tel: +852 2878 9193 |
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Nanyan Zheng
Tianyi Jiang Alliance Ascend GP Limited Alliance Ascend L.P. Ocean Link Partners II GP Limited Ocean Link Partners II GP, L.P. Ocean Link Partners II, L.P. Ocean Ascend Holding Limited Ocean Ascend Limited Unit 2823, 28/F, AIA Central 1 Connaught Road, Central Hong Kong Tel: +852 3651 6101 |
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Recruit Holdings Co., Ltd.
GranTokyo South Tower 1-9-2 Marunouchi, Chiyoda-ku Tokyo 100-6640 Japan Tel: +81 3 6835 1111 |
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Rick Yan
RY Holdings Inc. RY Elevate Inc. 51 Elevate Limited Building 3, No. 1387 Zhang Dong Road Shanghai 201203 People’s Republic of China Tel: +86 21 6160 1888 |
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Kathleen Chien
Building 3, No. 1387 Zhang Dong Road Shanghai 201203 People’s Republic of China Tel: +86 21 6160 1888 |
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LLW Holding Ltd.
c/o 20F, Tower C Star City International Plaza 10 Jiuxianqiao Road, Chaoyang District Beijing 100016 People’s Republic of China Tel: +86 10 5827 3388 |
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Miranda So, Esq.
Davis Polk & Wardwell LLP The Hong Kong Club Building 3A Chater Road, Central Hong Kong Tel: +852 2533 3373 |
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Ian C. Ho, Esq.
Simpson Thacher & Bartlett 35th Floor ICBC Tower 3 Garden Road, Central Hong Kong Tel: +852 2514 7600 |
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Judie Ng Shortell, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison LLP Unit 5201, Fortune Financial Center 5 Dongsanhuan Zhonglu Chaoyang District Beijing 100020 People’s Republic of China Tel: +86 10 5828 6318 |
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Tim Gardner, Esq.
William Welty, Esq. Weil, Gotshal & Manges LLP 29/F, Alexandra House 18 Chater Road, Central Hong Kong Tel: +852 3476 9000 |
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Daniel Dusek, Esq.
Joseph Raymond Casey, Esq. Kirkland & Ellis 26th Floor, Gloucester Tower The Landmark 15 Queen’s Road, Central Hong Kong Tel: +852 3761 3300 |
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Brian E. Hamilton, Esq.
Sullivan & Cromwell LLP 125 Broad Street New York, New York 10004 Tel: +1 212 558 4000 |
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Exhibit (b)-(11)
SECOND AMENDMENT AGREEMENT | ||
dated 25 April 2022 | ||
BETWEEN
GARNET
FAITH LIMITED
and
CHINA MERCHANTS BANK CO., LTD. SHANGHAI BRANCH (招商银行股份有限公司上海分行) 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 Arrangers
and
CHINA MERCHANTS BANK CO., LTD. SHANGHAI BRANCH (招商银行股份有限公司上海分行) 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 Original Lenders
and
CHINA MERCHANTS BANK CO., LTD. SHANGHAI BRANCH (招商银行股份有限公司上海分行) as Agent
and
CHINA MERCHANTS BANK CO., LTD. SHANGHAI BRANCH (招商银行股份有限公司上海分行) as Security Agent
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Table of Contents
Clause | Page | |
1. | Definitions and Interpretation | 1 |
2. | Amendments to the Original Facilities Agreement | 2 |
3. | Representations | 2 |
4. | Miscellaneous | 3 |
5. | Governing Law and enforcement | 3 |
SCHEDULE 1 | 4 |
AMENDMENTS TO ORIGINAL FACILITIES AGREEMENT | 4 |
i |
THIS AGREEMENT is dated 25 April 2022 and is made between:
(1) | GARNET FAITH LIMITED, an exempted company incorporated under the laws of the Cayman Islands with limited liability with registration number 368971 and having its registered address at offices at c/o Intertrust Corporate Services (Cayman) Limited, One Nexus Way, Camana Bay, Grand Cayman KY1-9005, Cayman Islands as 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) | 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 sole original mandated lead arranger (the Original Lead Arranger) 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), incorporated in the PRC with limited liability as original joint mandated lead arranger (the Original Co-Lead Arranger, together with the original lead arranger and whether individually or together, the Arrangers); |
(3) | CHINA MERCHANTS BANK CO., LTD. SHANGHAI BRANCH (招商银行股份有限公司上海分行) 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 Original Lenders; |
(4) | CHINA MERCHANTS BANK CO., LTD. SHANGHAI BRANCH (招商银行股份有限公司上海分行) as agent of the other Finance Parties (the Agent); and |
(5) | CHINA MERCHANTS BANK CO., LTD. SHANGHAI BRANCH (招商银行股份有限公司上海分行) as security trustee for the Secured Parties (the Security Agent). |
BACKGROUND:
(A) | The Parties (as defined below) enter into this Agreement in connection with the Original Facilities Agreement (as defined below). |
(B) | The Parties intend that this Agreement will amend the Original Facilities Agreement on the date of this Agreement. Save as amended and supplemented herein, all terms and conditions of the Original Facilities Agreement (as amended and supplemented by this Agreement) shall remain unchanged and shall be binding and have full force and effect. |
IT IS AGREED as follows:
1. | Definitions and Interpretation |
1.1 | Definitions |
In this Agreement:
Amended Facilities Agreement means the Original Facilities Agreement as amended by this Agreement.
Original Facilities Agreement means the facilities agreement originally dated 21 October 2021 entered into between, among others, the Company, the Arrangers, the Original Lenders, the Agent and the Security Agent as amended and supplemented by the Amendment Agreement.
Party means a party to this Agreement.
1 |
1.2 | Construction |
(a) | Unless otherwise expressly defined in this Agreement or the context otherwise requires, words and expressions defined in the Original Facilities Agreement have the same meaning in this Agreement. |
(b) | Save as set out in this Agreement, the provisions of clause 1.2 (Construction) and clause 1.5 (Third party rights) of the Original Facilities Agreement apply to this Agreement as though they were set out in full in this Agreement, except that references therein to "this Agreement" will be construed as references to this Agreement. |
1.3 | Finance Document |
This Agreement is designated as a Finance Document by the Agent and the Company.
2. | Amendments to the Original Facilities Agreement |
2.1 | Amended Facilities Agreement |
For the purposes of Clause 38 (Amendments and Waivers) of the Original Facilities Agreement, the Parties agree that the Original Facilities Agreement be varied and amended by this Agreement on and from the date of this Agreement as set out in Schedule 1 (Amendments to Original Facilities Agreement).
2.2 | Continuation |
(a) | On and from the date hereof, the Original Facilities Agreement and this Agreement shall be read and construed as one document. |
(b) | Except as otherwise provided in this Agreement, the Original Facilities Agreement and the other Finance Documents remain in full force and effect. |
(c) | Save as expressly provided in this Agreement, nothing in this Agreement shall constitute or be construed as a waiver or compromise of any term or condition of the Finance Documents or of the rights of any Finance Party in relation to the Finance Documents. |
(d) | On and from the date hereof, references in the Original Facilities Agreement to "this Agreement", "hereunder", "herein" and like terms or to any provision of the Original Facilities Agreement shall be construed as a reference to the Amended Facilities Agreement or a provision of the Amended Facilities Agreement, as applicable. |
3. | Representations |
The Company:
(a) | confirms to each Finance Party that on the date of this Agreement the Repeating Representations are true; and |
(b) | makes each Repeating Representation on the date of this Agreement as if references to the Original Facilities Agreement and Finance Documents are construed as references to this Agreement, the Amended Facilities Agreement and the Finance Documents, |
in each case, each Repeating Representation is applied to the facts and circumstances then existing.
2 |
4. | Miscellaneous |
4.1 | Incorporation |
The provisions of clauses 34 (Notices), 36 (Partial Invalidity) and 38 (Amendments and Waivers), of the Original Facilities Agreement shall apply to this Agreement as though they were set out in full in this Agreement, except that references therein to "this Agreement" will be construed as references to this Agreement.
4.2 | Counterparts |
This Agreement may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.
5. | Governing Law and enforcement |
5.1 | Governing Law |
This Agreement is governed by Hong Kong law.
5.2 | Enforcement |
Clause 42 (Enforcement) of the Original Facilities Agreement shall apply to this Agreement as though it was set out in full in this Agreement, except that references therein to "this Agreement" will be construed as references to this Agreement.
This Agreement has been entered into on the date stated at the beginning of this Agreement.
3 |
SCHEDULE 1
AMENDMENTS TO ORIGINAL FACILITIES AGREEMENT
Terms defined in or construed for the purposes of the Original Facilities Agreement have the same meaning when used in this Schedule unless given a different meaning herein.
4 |
5 |
6 |
7 |
7. | Sub-paragraph (j)(iii)(G) of the definition of “Permitted Payment” in Clause 1.1 (Definitions) |
(G) US$30,000,000 (or its equivalent) in aggregate during the period from (and including) the sixth anniversary of the Initial Utilisation Date of the Initial Term Facility to (and including) the Termination Date of the Initial Utilisation Date of the Initial Term Facility;
|
Sub-paragraph (j)(iii)(G) of the definition of “Permitted Payment” in Clause 1.1 (Definitions) shall be deleted in its entirety and be replaced with the following:
(G) US$30,000,000 (or its equivalent) in aggregate during the period from (and including) the sixth anniversary of the First Utilisation Date to (and including) the Termination Date of the Initial Term Facility; |
8 |
9 |
10. | Definition of “Total Cash Bridge Facility (Tranche A) Commitments (Collateralised)” in Clause 1.1 (Definitions) | No equivalent provision in the Original Facilities Agreement. |
The following definition shall be added after the definition of “Total Cash Bridge Facility (Tranche A) Commitments” in Clause 1.1 (Definitions):
Total Cash Bridge Facility (Tranche A) Commitments (Collateralised) means an amount in US$ of the Total Cash Bridge Facility (Tranche A) Commitments as notified by the Company to the Agent pursuant to Clause 5.9 (Collateralised Commitments of Cash Bridge Facilities), provided that such amount shall not exceed the Total Cash Bridge Facility (Tranche A) Commitments. |
11. | Definition of “Total Cash Bridge Facility (Tranche B) Commitments (Collateralised)” in Clause 1.1 (Definitions) | No equivalent provision in the Original Facilities Agreement. |
The following definition shall be added after the definition of “Total Cash Bridge Facility (Tranche B) Commitments” in Clause 1.1 (Definitions):
Total Cash Bridge Facility (Tranche B) Commitments (Collateralised) means an amount in US$ of the Total Cash Bridge Facility (Tranche B) Commitments as notified by the Company to the Agent pursuant to Clause 5.9 (Collateralised Commitments of Cash Bridge Facilities), provided that such amount shall not exceed the Total Cash Bridge Facility (Tranche B) Commitments. |
12. | Clause 1.2 (Construction) | No equivalent provision in the Original Facilities Agreement. |
The following paragraph shall be added as new paragraph (x) of Clause 1.2 (Construction):
(x) Any reference to “the Cash Bridge Facility (Tranche A) Loan” or “the Cash Bridge Facility (Tranche B) Loan” in this Agreement shall refer to any and all Cash Bridge Facility (Tranche A) Loans or Cash Bridge Facility (Tranche B) Loans (as the case may be). |
10 |
11 |
12 |
13 |
19. | Paragraph (h)(i) of Clause 24.29 (Conditions subsequent) | The reference to “the aggregate amount of Cash Bridge Facility (Tranche A) Loan outstanding as at the Initial Utilisation Date in respect of the Cash Bridge Facility (Tranche A)” |
The reference to “the aggregate amount of Cash Bridge Facility (Tranche A) Loan outstanding as at the Initial Utilisation Date in respect of the Cash Bridge Facility (Tranche A)” shall be deleted in its entirety and replaced with “the Total Cash Bridge Facility (Tranche A) Commitments (Collateralised)”.
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20. | Paragraph (h)(ii) of Clause 24.29 (Conditions subsequent) | (ii) within 15 Business Days of the Initial Utilisation Date in respect of the Cash Bridge Facility (Tranche B), first priority Transaction Security is granted over Cash held in the onshore bank accounts of Onshore Group Members opened with each Original Cash Bridge Facility (Tranche B) Lender (the CBF Tranche B Accounts) with an aggregate credit balance of Cash in RMB in the CBF Tranche B Accounts of an amount which is equal to or greater than the aggregate amount of Cash Bridge Facility (Tranche B) Loan outstanding as at the Initial Utilisation Date in respect of the Cash Bridge Facility (Tranche B) multiplied by (A) 1.10 (if the Base Currency of the Cash Bridge Facility (Tranche B) Loan is RMB or, if the Base Currency of the Cash Bridge Facility (Tranche B) Loan is US$, FX hedging in the CBF Currency has been entered into in connection with such Cash denominated in RMB and such Cash in RMB is converted to the CBF Currency using the exchange rate agreed in such FX hedging) or (B) 1.15 (if the Base Currency of the Cash Bridge Facility (Tranche B) Loan is US$ and no FX hedging in the CBF Currency has been entered into in connection with such Cash denominated in RMB, in which case, for the purpose of this calculation, such currency will be converted to the CBF Currency at the CBF Exchange Rate as at the date falling one PRC Business Day before the CBF Security Signing Date in relation to the Cash Bridge Facility (Tranche B)) (CBF Tranche B Cash, together with CBF Tranche A Cash, CBF Cash), provided that in each case the CBF Tranche B Cash shall be deposited and maintained in the CBF Tranche B Accounts opened with each Original Cash Bridge Facility (Tranche B) Lender in an amount pro rata to its Cash Bridge Facility (Tranche B) Commitment (all the requirements on the amount of the CBF Tranche B Cash in this paragraph (ii) collectively being the CBF Tranche B Cash Requirements); |
Paragraph (h)(ii) of Clause 24.29 (Conditions subsequent) shall be deleted in its entirety and be replaced with the following:
(ii) within 15 Business Days of the Initial Utilisation Date in respect of the Cash Bridge Facility (Tranche B), first priority Transaction Security is granted over Cash held in the onshore bank accounts of Onshore Group Members opened with each Original Cash Bridge Facility (Tranche B) Lender (the CBF Tranche B Accounts) with an aggregate credit balance of Cash in RMB in the CBF Tranche B Accounts of an amount which is equal to or greater than the Total Cash Bridge Facility (Tranche B) Commitments (Collateralised) multiplied by (A) 1.10 (if the Base Currency of the Cash Bridge Facility (Tranche B) Loan is RMB or, if the Base Currency of the Cash Bridge Facility (Tranche B) Loan is US$, FX hedging in the CBF Currency has been entered into in connection with such Cash denominated in RMB and such Cash in RMB is converted to the CBF Currency using the exchange rate agreed in such FX hedging) or (B) 1.15 (if the Base Currency of the Cash Bridge Facility (Tranche B) Loan is US$ and no FX hedging in the CBF Currency has been entered into in connection with such Cash denominated in RMB, in which case, for the purpose of this calculation, such currency will be converted to the CBF Currency at the CBF Exchange Rate as at the date falling one PRC Business Day before the CBF Security Signing Date in relation to the Cash Bridge Facility (Tranche B)) (CBF Tranche B Cash, together with CBF Tranche A Cash and in each case, subject to any release and reduction pursuant to paragraph (j) of this Clause 24.29 below, CBF Cash), provided that in each case the CBF Tranche B Cash shall be deposited and maintained in the CBF Tranche B Accounts opened with each Original Cash Bridge Facility (Tranche B) Lender in an amount pro rata to its Cash Bridge Facility (Tranche B) Commitment (all the requirements on the amount of the CBF Tranche B Cash in this paragraph (ii) collectively being the CBF Tranche B Cash Requirements);
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14 |
21. | Sub-paragraph (j)(ii)(C) of Clause 24.29 (Conditions subsequent) | (C) the CBF Cash shall be repatriated to a Dividends Collection Account held by an Offshore Material Company with the Agent or its Affiliates and shall be applied towards prepayment of the relevant Cash Bridge Facility Loan within one Business Day after such proceeds are credited into the aforementioned Dividends Collection Account. |
Sub-paragraph (j)(ii)(C) of Clause 24.29 (Conditions subsequent) shall be deleted in its entirety and be replaced with the following:
(C) the CBF Cash shall be repatriated to a Dividends Collection Account held by an Offshore Material Company with the Agent or its Affiliates and shall be applied towards prepayment of the relevant Cash Bridge Facility Loan within one Business Day after such proceeds are credited into the aforementioned Dividends Collection Account;
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15 |
22. | Paragraph (j) of Clause 24.29 (Conditions subsequent) | No equivalent provision in the Original Facility Agreement. |
The following paragraphs shall be added as new sub-paragraphs (j)(iv) and (j)(v) of Clause 24.29 (Conditions subsequent):
(iv) (after the expiry of the Availability Period of Cash Bridge Facility (Tranche A)) if the amount of CBF Tranche A Cash standing to the credit of the CBF Tranche A Accounts exceeds the aggregate amount of Cash Bridge Facility (Tranche A) Loans outstanding as at the end of the Availability Period of the Cash Bridge Facility (Tranche A) multiplied by (A) 1.10 (if the Base Currency of the Cash Bridge Facility (Tranche A) Loans is RMB or, if the Base Currency of the Cash Bridge Facility (Tranche A) Loans is US$, FX hedging in the CBF Currency has been entered into in connection with such Cash denominated in RMB and such Cash in RMB is converted to the CBF Currency using the exchange rate agreed in such FX hedging) or (B) 1.15 (if the Base Currency of the Cash Bridge Facility (Tranche A) Loans is US$ and no FX hedging in the CBF Currency has been entered into in connection with such Cash denominated in RMB, in which case, for the purpose of this calculation, such currency will be converted to the CBF Currency at the CBF Exchange Rate as at the date of proposed release), in an amount up to such excess at the request of the Company; or (v) (after the expiry of the Availability Period of Cash Bridge Facility (Tranche B)) if the amount of CBF Tranche B Cash standing to the credit of the CBF Tranche B Accounts exceeds the aggregate amount of Cash Bridge Facility (Tranche B) Loans outstanding as at the end of the Availability Period of the Cash Bridge Facility (Tranche B) multiplied by (A) 1.10 (if the Base Currency of the Cash Bridge Facility (Tranche B) Loans is RMB or, if the Base Currency of the Cash Bridge Facility (Tranche B) Loans is US$, FX hedging in the CBF Currency has been entered into in connection with such Cash denominated in RMB and such Cash in RMB is converted to the CBF Currency using the exchange rate agreed in such FX hedging) or (B) 1.15 (if the Base Currency of the Cash Bridge Facility (Tranche B) Loans is US$ and no FX hedging in the CBF Currency has been entered into in connection with such Cash denominated in RMB, in which case, for the purpose of this calculation, such currency will be converted to the CBF Currency at the CBF Exchange Rate as at the date of proposed release), in an amount up to such excess at the request of the Company,
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16 |
17 |
18 |
SIGNATURES
THE COMPANY
GARNET FAITH LIMITED
By | /s/ David Haifeng Liu |
Garnet Faith Limited
c/o DCP Capital
21/F, York House, The Landmark, 15 Queen’s Road Central, Hong Kong
Attention: Julian Wolhardt
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison LLP
Unit 5201, Fortune Financial Center,
5 Dongsanhuan Zhonglu, Chaoyang District, Beijing 100020, China
Attention: Judie Ng Shortell
Email: jngshortell@paulweiss.com
Kirkland & Ellis LLP
26th Floor, Gloucester Tower, The Landmark
15 Queen’s Road Central
Hong Kong
Attention: Jacqueline Zheng; Daniel Dusek; Joseph Raymond Casey
Email: jacqueline.zheng@kirkland.com; daniel.dusek@kirkland.com;
joseph.casey@kirkland.com
Weil, Gotshal & Manges LLP
29/F, Alexandra House
18 Chater Road, Central
Hong Kong
Attention: Tim Gardner; William Welty
E-mail: tim.gardner@weil.com; william.welty@weil.com
Sullivan & Cromwell LLP
125 Broad Street
New York, New York 10004
Attention: Brian E. Hamilton; Garth W. Bray
Email: hamiltonb@sullcrom.com; brayg@sullcrom.com