RNS Number:5635A
Tuntex (Thailand) PCL
15 March 2001
PART 1
Letter to Company Announcements Office
Tuntex (Thailand) Public Company Limited - US$70,000,000 Floating Rate Notes due
1998 (extended to 2001)
Please find attached copies of the resolutions approving the extension
of the maturity of the Notes to 31 March 2001.
I also attach a copy of a notice to the Noteholders (and a summary of the
notice) sent Friday, 9 March 2001 requesting an approval of extension of
maturity of the Notes to 31 May 2001, for your reference. The result of
any approval to extend the maturity will be sent to you in due course.
Letter from Bobby Ladwa (Clifford Chance)
NOTICE
to the Holders of the Outstanding
U.S.$70,000,000 Floating Rate Notes due 1998 (extended to be due 2000)
Issued by
Tuntex (Thailand) Public Company Limited
NOTICE IS HEREBY GIVEN to the holders of the above Notes that, at the
Meeting of such holders held at Function Rooms (IV) & (V), Miramar Hotel
Hong Kong, 130 Nathan Road, Tsim Sha Tsui, Kowloon, Hong Kong on 28 September
2000 at 2.00 p.m. (Hong Kong time), in accordance with the terms of the Agency
Agreement for such Notes the following Extraordinary Resolution was passed:
EXTRAORDINARY RESOLUTION
"That this meeting of the holders of the outstanding U.S$70,000,000
Floating Rate Notes due 1998 (extended to be due 2000) (the "Notes")
of Tuntex (Thailand) Public Company Limited (the "Issuer") which are the
subject of an Agency Agreement dated 26 September 1995 (the "Original
Agency Agreement") between the Issuer, Bankers Trust Company, Hong Kong
Branch as fiscal agent and principal paying agent (the "Fiscal Agent",
which expression shall include its successor, Deutsche Bank AG, Hong
Kong Branch) and Bankers Trust Company, London Branch as paying agent
(which expression shall include its successor, Deutsche Bank AG London
and, together with the Fiscal Agent, the "Paying Agents") as amended by
a supplemental fiscal agency agreement dated 21 December 1998 (the
"Supplemental Agency Agreement" and together with the Original Agency
Agreement, the "Agency Agreement") and made between the Issuer, the
Paying Agents and Yuhow Chen as guarantor, HEREBY RESOLVES THAT:
Condition 5(a) shall be deleted and replaced forthwith by the
following:
"(a) Final redemption
Unless previously redeemed, or purchased and cancelled, the Notes will be
redeemed at their principal amount on the Interest Payment Date falling in
December 2000.
Tuntex (Thailand) Public Company Limited
29 September 2000
NOTICE OF MEETING OF NOTEHOLDERS
U.S.$70,000,000 Floating Rate Notes due 1998 (extended to be due 2000)
issued by
Tuntex (Thailand) Public Company Limited
Tuntex (Thailand) Public Company Limited (the "Issuer") hereby gives
notice to the holders (the "Noteholders", which expression shall include
persons holding interests in Notes (as defined below) through the Clearing
Systems (as defined below)) of its U.S.$70,000,000 Floating Rate Notes
due 1998 (extended to be due 2000) (the "Notes") that the meeting of
Noteholders' originally scheduled to be held on 7 December 2000 is
cancelled due to requests from certain Noteholders that they need more
time to consider the terms of the proposed Extraordinary Resolution.
The Issuer wishes to propose certain terms for the restructuring of the
Notes and is in the course of preparing legal documents for such
restructuring (the "Restructuring Documentation"). The Issuer hereby gives
notice to the Noteholders that, pursuant to Condition 11(a) of the terms
and conditions of the Notes and the provisions of Schedule 4 of the Agency
Agreement dated 26 September 1995 (the "Original Agency Agreement,")
relating to the Notes and made between the Issuer, Bankers Trust Company,
Hong Kong Branch as fiscal agent and principal paying agent (the "Fiscal
Agent", which expression shall include its successor, Deutsche Bank AG,
Hong Kong Branch) and Bankers Trust Company, London Branch as paying agent
(which expression shall include its successor, Deutsche Bank AG London
and, together with the Fiscal Agent, the "Paying Agents") as amended by a
supplemental fiscal agency agreement dated 21 December 1998 (the
"Supplemental Agency Agreement" and together with the Original Agency
Agreement, the "Agency Agreement") relating to the Notes and made between
the Issuer, the Paying Agents and Yuhow Chen as guarantor, a meeting of
the Noteholders (the "Meeting") will be held at Function Room 1, Basement
2, Miramar Hotel Hong Kong, 130 Nathan Road, Tsim Sha Tsui, Kowloon,
Hong Kong on 21 December 2000 at 2:00 p.m. (Hong Kong time) for
considering and, if thought fit, passing the following resolution (the
"Resolution") which will be proposed as an Extraordinary Resolution (as
defined in the Agency Agreement) in accordance with the provisions
of the Agency Agreement:
EXTRAORDINARY RESOLUTION
"That this meeting of the holders of the outstanding U.S.$70,000,000 Floating
Rate Notes due 1998 (extended to be due 2000) (the "Notes") of Tuntex
(Thailand) Public Company Limited (the "Issuer") which are the subject of an
Agency Agreement dated 26 September 1995 (the "Original Agency Agreement")
between the Issuer, Bankers Trust Company, Hong Kong Branch as fiscal
agent and principal paying agent (the "Fiscal Agent", which expression
shall include its successor, Deutsche Bank AG, Hong Kong Branch) and Bankers
Trust Company, London Branch as paying agent (which expression shall include its
successor, Deutsche Bank AG London and, together with the Fiscal Agent, the
"Paying Agents") as amended by a supplemental fiscal agency agreement dated 21
December 1998 (the "Supplemental Agency Agreement" and together with the
Original Agency Agreement, the "Agency Agreement") and made between the
Issuer, the Paying Agents and Yuhow Chen as guarantor, HEREBY RESOLVES THAT:
1. Interest Payments and Extension of Maturity Date
Condition 4(b) shall be amended by deleting the word "Interest" at the beginning
of the Condition and replacing it by:
"Subject to Condition 4(b)(b), interest":
The following Condition 4(b)(b) shall be inserted immediately after Condition
4(b):
"(b)(b) Deferral of Interest
For the period from the Interest Payment Date falling in September 2000 to the
due date for redemption of the Notes, only the Rate of Interest excluding the
Margin (as defined below) will be payable on each Interest Payment Date and
payment of the accrued but unpaid Margin will be deferred until the due date for
redemption of the Notes"(1);
Condition 4(c)(iv) shall be deleted and replaced by the following:
"(iv) the margin (the "Margin") is (i) 1.45 per cent. per annum in respect of
any Interest Period ending on or before the Interest Payment Date falling
in September 1998 (ii) 4 per cent. per annum in respect of any subsequent
Interest Period ending on or before the Interest Payment Date falling in
September 1999 (iii) 4.5 per cent. per annum in respect of subsequent Interest
Period ending on or before the Interest Payment Date falling in September 2000
and (iv) 1.5 per cent. per annum thereafter."; and
1 **The footnotes do not form part of the Extraordinary Resolutions
The deferral of interest until the due date for redemption of the Notes is put
in as a temporary measure only pending insertion of the final deferral terms
upon implementation of the Restructuring Documentation. For details of such
deferral of interest pursuant to the Restructuring Documentation. please refer
to paragraph 5 of Section II of this Notice.
Condition 5(a) shall be deleted and replaced forthwith by the
following:
"(a) Final redemption
Unless previously redeemed, or purchased and cancelled, the Notes will be
redeemed at their principal amount on the Interest Payment Date falling in March
2001." (2)
II. Restructuring
The Issuer's proposed terms for restructuring of the Notes (the "Proposed
Terms") summarised below be and they are hereby approved:
1. Repayment
The maturity date of the Notes shall be extended. The Notes shall be redeemed in
stages on or before 30 September 2007 on the following dates at the
corresponding percentages of their current outstanding principal amount:
Principal Repayment Schedule
Repayment Date Principal Repayment Percentage (%)
31 March 2003 3
30 September 2003 3
31 March 2004 4
30 September 2004 4
31 March 2005 5.5
30 September 2005 5.5
31 March 2006 6.5
30 September 2006 6.5
31 March 2007 7
30 September 2007 55
Total 100
2. Priority of Repayment to Creditors upon Default of Restructuring
If the Issuer's operating cash flow is not sufficient to pay all its debt
(principal and interest) which is due and payable at any time, the Issuer shall
apply the operating cash flow in the following order:
(i) interest payment in respect of the New Working Capital Facilities
on a pro rata basis;
(ii) principal repayment in respect of the New Working Capital
Facilities on a pro rata basis;
2 The maturity date of the Notes will be postponed to 30 September 2007 if the
Restructuring Documentation is signed.
(iii) interest payment in respect of the Existing Working Capital Facilities
on a pro rata basis;
(iv) principal repayment in respect of the Existing Working Capital Facilities
on a pro rata basis;
(v) interest payment in respect of the Baht Tranche, the Dollar Tranche and
the Supplier's Overdue Debt to the Creditors and the Supplier on a pro
rata basis;
(vi) principal repayment in respect of the Baht Tranche and the Dollar Tranche
to the Existing Secured Creditor; and
(vii) principal repayment in respect of the Baht Tranche, the Dollar Tranche
and the Supplier's Overdue Debt to the Existing Unsecured Creditors and
the Supplier on a pro rata basis,
and subject to paragraph 3 below, the Majority Lenders, on behalf of the
Creditors, shall have the right to call an event of default and accelerate
(inter alia) the Notes. The events of default set out in Condition 8 of the
original terms and conditions of the Notes will no longer be applicable.
3. Request for Deferral of Principal Repayment
(i) If the Issuer encounters potential difficulties in complying with the
obligation to make repayment in accordance with the principal repayment
schedule in paragraph 2 above, it may request deferral of the principal
repayment (the "Deferred Principal") which shall be due and payable on
the next following principal repayment date by submitting a request in
writing to the Facility Agent not less than one month prior to the
scheduled repayment date on which the principal repayment will be
deferred. The amount of principal repayment to be deferred shall not
exceed the shortfall amount of the operating cash flow of the Issuer. If
the Majority Lenders consider that there is a cash shortfall as informed
by the Issuer, the Majority Lenders shall approve the deferral of principal
repayment as requested by the Issuer, provided however that the amount
of the Deferred Principal shall be subject to the approval by the Majority
Lenders.
(ii) Deferral of principal repayment shall not exceed two occasions.
(iii)The Issuer is obliged to pay interest at the rate of 1% per annum
above the then prevailing interest rate applicable to the Notes on the
outstanding principal and the Deferred Principal starting from the date
of the deferral until whichever is the earlier of (i) the day on which
the amount of the Deferred Principal and interest thereon up to that day
are received by or on behalf of the relevant Noteholder and (ii) the day
which is seven days after the Fiscal Agent has notified the Noteholders
that it has received such Deferred Principal and interest thereon up to
such seventh day (except to the extent that there is any subsequent default
in payment). Such 1% increase in interest shall be deferred and become
payable by the Issuer in the same manner as the relevant Deferred Interest.
(iv) The Deferred Principal shall be due and payable by the Issuer upon the
Issuer's obtaining of new funds as a result of capital injection or assets
disposal under paragraph 6 or upon there being an Excess Cash Flow pursuant
to paragraph 7, whichever is earlier, but in no event shall payment thereof
be later than 30 September 2007.
4. Voluntary Prepayment through Refinancing
(i) The Issuer may at any time prepay the whole amount or any portion of
the Notes using funds obtained from a refinancing; provided however
that the terms and conditions of the refinancing and the prepayment must
be acceptable to the Majority Lenders.
(ii) The prepayment amount shall be applied in the following order:
(a) prepayment to the Foreign Creditors on a pro rata basis and in order of
maturity; and
(b) prepayment to the Local Lenders on a pro rata basis and in order of
maturity.
5. Interest
(i) Subject to paragraphs 3(iii) and 7, the Notes shall bear interest at the
rate which is the aggregate of (i) 1.5% per annum and (ii) LIBOR.
(ii)From the Interest Payment Date in December 2000 to 31 December 2002,
interest paid during that period shall be limited to LIBOR only. The
additional accrued but unpaid interest of 1.5% per annum (the
"Deferred Interest") shall be deferred and become payable by the Issuer in
the manner set out in paragraphs 6 and 9. From the Interest Payment Date in
March 2002 to the maturity date of the Notes, LIBOR and 1.5% per annum
shall be paid by the Issuer. Interest shall be due and payable quarterly
on the last banking day of each quarter. For the avoidance of doubt, no
interest shall be charged on the Deferred Interest.
6. Capital Injection or Asset Disposal
(i) Prior to the end of each year commencing from 2001, the Issuer shall,
by its best efforts, raise new funds, either by means of injection of
capital or disposal of assets, in the amount as set out below (each, a
"Milestone":
(a) before 31 December 2001 : an amount of not less than
Baht 1,500,000,000;
(b) before 31 December 2002 : an additional amount of not
less than Baht 1,500,000,000;
(c) before 31 December 2003 : an additional amount of not
less than Baht 1,500,000,000;
(d) before 31 December 2004 : an additional amount of not
less than Baht 1,500,000.000;
and
(e) before 31 December 2005 : an additional amount of
not less than the
outstanding total amount
of Deferred Interest and
Default Interest.
Despite any failure by the Issuer in raising new funds from
time to time in accordance with the relevant Milestone, the
Issuer shall be obliged to raise new funds until the total
amount of all Milestones as at their respective due dates
have been achieved.
(ii) Each amount of the proceeds received by the Issuer pursuant to this
paragraph be used in the following manner:
(a) subject to consent by the Majority Lenders, up to 25% of
the proceeds received can be used to pay the outstanding
amount of the New Working Capital Facilities and the
Existing Working Capital Facilities, respectively;
(b) the remaining amount of the proceeds shall be used in the
following order of priority:
(i) payment of Deferred Interest for the Baht Tranche,
Deferred Interest for the Dollar Tranche and Default
Interest to the Creditors on a pro rata basis; and
(ii)first, repayment of Deferred Principal (if any) to
the Existing Secured Creditor and Existing Unsecured Creditors on
a pro rata basis and, second, prepayment of the outstanding
principal under the Baht Tranche and the Dollar
Tranche to the Creditors on a pro rata basis within each relevant
repayment period and in inverse order of maturity.
7. Increase of Interest Rate after Failure to Achieve Milestone
(i) If the Issuer in any year fails to achieve the relevant
Milestone (paragraph 6) and so long as the Majority Lenders
do not declare an Event of Default, with effect from the first
interest period following the year in which the Issuer fails
to achieve the Milestone, the then prevailing interest rate
applicable to the Notes shall be additionally increased by 0.25%
per annum.
(ii)The Issuer shall be liable to pay interest at the relevant
increased rate as specified above to the Creditors up until the
Issuer shall have fully obtained new funds in the amount equal
to the cumulative amount of all relevant Milestones calculated until
and including the year in which the failure to achieve any Milestone giving
rise to the increase in interest rates pursuant to sub-paragraph (i) above
occurred. When the aforementioned condition is fully complied
with by the Issuer, the Facility Agent shall notify the Creditors and
with effect from the quarter following the aforesaid compliance by the
Issuer, the interest rate applicable to the Notes shall be reduced by the
rate equal to the interest rate increase in accordance with sub-paragraph
(i) above and the Issuer shall no longer be liable to pay interest at
the increased rate as specified under sub-paragraph (i) above.
8. Default Interest
(i) If the Issuer fails to pay any principal amount which is then
due to the Noteholders (except for Deferred Principal and Deferred
Interest) or upon a declaration of an Event of Default (in case of
non-payment), it shall pay additional default interest at the rate
of 1% per annum above the then prevailing rate applicable to the Notes
("Default Interest") calculated on the outstanding amount of the
Notes until such failure has been remedied. The Default Interest shall
become payable by the Issuer in the manner set out in paragraph 6.
(ii)Any interest which is overdue for more than one year shall be
compounded and such interest shall be added as principal.
9. Cash Sweep
(i) To the extent that there is an Excess Cash Flow on 31 March
and 30 September of each year, the Issuer shall apply the
amount of such Excess Cash Flow to make payment (a "Mandatory
Payment") in the following order:
first, repayment of Deferred Interest for the Baht Tranche,
Deferred Interest for the Dollar Tranche and Default Interest
to the Creditors on a pro rata basis: second, repayment of
the Deferred Principal (if any) to the Existing Secured Creditor and
Existing Unsecured Creditors on a pro rata basis; and third, repayment of
the outstanding principal under the Baht Tranche and the Dollar Tranche
to the Creditors on a pro rata basis within each relevant prepayment
period and in inverse order of maturity.
(ii)The Excess Cash Flow shall be calculated on a semi-annual basis and applied
to make the Mandatory Payment on 31 March and 30 September of each year
after the Restructuring Date. If such calculation when compared with the
audited financial statements is not accurate, the Issuer shall pay the
deficiency to the Creditors at the end of the immediate succeeding quarter.
10. Accounts and Cash Monitoring
(i) For the purpose of cash monitoring, the Issuer shall cause all revenues to
be deposited in the account(s) to be further determined and such account(s)
shall be opened and maintained for the benefit of the Creditors.
(ii)The Majority Lenders may allow the Issuer to open and maintain any other
bank accounts (the "Bank Accounts") under the name of the Issuer; provided
however that, the Bank Accounts shall be the subject of security interests
for the benefit of all the Creditors.
11 Cash Flow Monitoring
All cash flow shall be monitored by the Security Agent and reported to
the Noteholders quarterly and be applied in accordance with the
provisions concerning cash flow application under the Restructuring
Documentation.
12. Sponsor Support
The Sponsor and the Issuer shall enter into a Support Agreement, wherein
the Sponsor shall agree that if at any time during the principal repayment
period the Issuer does not have sufficient funds to pay any of its
indebtedness (including Deferred Principal and Deferred Interest) owed
to the Creditors pursuant to the Term Sheet, the Sponsor shall provide
cash deficiency support (the "CDS") of not less than Baht 1,600,000,000
which shall be in the form and subject to the terms and conditions
approved by the Majority Lenders. Upon notification by the Majority
Lenders, the Issuer shall immediately demand the Sponsor to provide the
CDS to it and the Issuer, the Local Lenders, the Security Agent and the
Sponsor shall enter into an agreement to set out the terms upon
which the obligations of the Issuer towards the Sponsor in relation to the
CDS shall be subordinated to the indebtedness owed by the Issuer to the
Creditors. In the case that the Issuer does not demand the CDS from the
Sponsor as so notified by the Majority Lenders, the Majority Lenders shall
have the right to demand the CDS directly from the Sponsor.
13. Covenants
(i) Positive Covenants
The Restructuring Documentation shall contain the following
positive covenants on the part of the Issuer:
(a) Financial ratios: to maintain financial ratios, including debt
service coverage ratio, debt to equity ratio and tangible net
worth ratio at levels satisfactory to the Creditors;
(b) New security: to procure that new security, including a pledge
of Bank Accounts and conditional assignment of Bank Accounts,
be created and maintained in favor of the Security Agent for
the benefit of the Creditors and in form and substance
satisfactory to the Creditors to the extent possible and
practicable under Thai law;
(c) Nomination of director: to cause the shareholders of the Issuer
to appoint at least one director nominated by the Majority
Lenders to act as an authorised director of the Issuer;
(d) Sponsor Support: to procure that the Sponsor provide CDS in
accordance with paragraph 12; and
(e) Others: to comply with other standard covenants and
undertakings applicable to similar types of restructuring.
(ii)Negative Covenants
The Restructuring Documentation shall contain the following negative
covenants on the part of the Issuer:
(a) Incur indebtedness: not to incur, create, assume or permit to
exist any indebtedness except indebtedness incurred in relation
to the Restructuring Documentation and the restructuring
agreement(s) with the Foreign Creditors, indebtedness in the
ordinary course of business of the Issuer's business and the
borrowing of money as approved by the Majority Lenders;
(b) Payment of dividend: not to declare or pay dividends unless the
Issuer meets the dividend payment criteria as specified in the
Restructuring Documentation;
(c) Principal Repayment: until the Restructuring Date, not to make
any repayment of principal under the Baht Tranche, the Dollar
Tranche, the Supplier's Overdue Debt or any of its indebtedness
(other than those necessary under its ordinary course of
business) to any of its Creditors; and
(d) Supplier's Overdue Debt: not to pay nor agree to pay:
(i) any (or all) principal under the Supplier's Overdue
Debt in a proportion higher than the repayment
percentage due and payable to the Creditors on each
repayment date pursuant to the principal repayment
schedule;
(ii) any (or all) interest accrued on the Supplier's
Overdue Debt to the Supplier at a rate higher than
the interest rates charged by the Local Lenders
pursuant to the Term Sheet and the Thai Bank
Restructuring Agreement; and
iii) the Supplier's Overdue Debt in full prior to 30
September 2007 or before all indebtedness under the
Baht Tranche and the Dollar Tranche shall have been
fully paid to the Creditors.
14. Expenses
The Issuer be responsible for and indemnify the Creditors
against all fees and expenses incurred by the Creditors in
connection with the Restructuring Documentation.
15. Material Adverse Change
It is a condition of the debt restructuring of the Issuer that
between the date of this Resolution and the execution date of the
Restructuring Documentation no event shall occur, which would, in
the opinion of the Majority Lenders, result in any material
adverse change in the financial conditions or prospects of the
Issuer, either in Thai or international monetary, financial,
political or economic conditions, such as would be likely to
materially prejudice financial conditions of the Issuer.
16. Rescheduling Fee
The Issuer shall pay to each Noteholder a rescheduling fee at the
rate of 0.5% of the aggregate principal amount of Notes held by
such Noteholder as at the date of the execution of the
Restructuring Documentation, payable as at the following dates:
Percentage of Restructuring Fee Payment Date
0.125% Restructuring Date
0.125% 31 March 2001
0.125% 31 March 2002
0.125% 31 March 2003
17.Amendments
(i) Any amendment or waiver which is made in writing by the Agent
at the direction of the Majority Lenders shall be binding on all
Creditors, provided that the written approval from each Class of the
Creditors as provided in sub-paragraph (iii)(a) to (c) shall be required
where that amendment or waiver relates to:
(a) Payment: the amount or currency of, the due date for, any
payment of principal of the Restructured Debt or interest
on the Restructured Debt or any put thereof;
(b) Calculation: any change in any rate of interest or the
manner of calculation of any rate of interest or any other amounts
payable to the Creditors under the Restructuring Documentation;
(c) Prepayment: any voluntary or mandatory prepayment;
(d) Decision-making: any amendment of the definition of
"Majority Lenders" or of the provisions described in this
paragraph 17;
(e) Security: the waiver of any requirement that any security
document or security (other than the Existing Security)
be provided, or the release of any person providing security
pursuant to the security documents from any security document or
the release of any security (other than the Existing Security)
created thereby, or the amendment of any provision of any
security documents;
(f) Order of Priority: any change in the ranking priority of any
amount under the Facilities or any amendment of the order of
payment application of any amount or proceeds under the
Restructuring Documentation; and
(h) Subordination of Debt: any change or waiver of terms of
subordination of debt owed by the Issuer to the Sponsor
pursuant to or in connection with the Sponsor Support
Agreement;
Any amendment affecting the rights of the Agent shall also require the consent
of the Agent,
(iii) For the purpose of the amendment and waiver pursuant to this paragraph
17, the Creditors shall be classified as follows:
(a) Class A, consisting of the Existing Secured Creditor;
(b) Class B, consisting of the Existing Unsecured Creditors
(other than the Noteholders); and
(c) Class C, consisting of the Noteholders.
In determining the approval of the amendments or waivers of
the matters set out in sub-paragraph (ii) by each Class of the
Creditors, the affirmative votes from:
(i) the Creditors whose outstanding debts under the Restructured Debt
exceed 50% of the outstanding debts owed to the Creditors
comprising Class A and Class B, and
(ii) the Noteholders holding not less than three-quarters of
the outstanding principal amount of the Notes as required
for the relevant matter pursuant to the Fiscal Agency
Agreement,
are required to constitute an approval from such Class of
Creditors.
18. Definitions
In this Resolution,
"Agent" means the entity to be appointed as Agent under the Term
Sheet;
"Baht Tranche" means the indebtedness of Baht 2,593,473,828 of
the Issuer existing as at 29 September 2000 set out in Appendix 1;
"BAY" means Bank of Ayudhya Public Company Limited;
"BBL" means Bangkok Bank Public Company Limited;
"Creditors" means Local Lenders and Foreign Creditors;
"Dollar Tranche" means the indebtedness of US$213,541,449.88 of
the Issuer existing as at 29 September 2000 set out in Appendix 1,
"Event of Default" means the following:
(i) an event of default under the Financing Documents and the
Offering Circular relating to the Notes;
(ii) an event of default under the Restructuring Documentation;
(iii) any failure by the Issuer or the Sponsor to comply with
any terms or conditions under the Term Sheet or any of the
Restructuring Documentation; and
(iv) any sale or transfer of shares in the Issuer by any of the
Major Shareholders except as permitted under The Term Sheet,
For the avoidance of doubt, the occurrence of an Event of Default
shall not cause the payment of the outstanding amount under the
Baht Tranche and the Dollar Tranche to be accelerated unless and
until the Majority Lenders shall have declared an Event of Default and
accelerated the payment of the outstanding amount under the Baht
Tranche and the Dollar Tranche pursuant to the Restructuring
Documentation;
"Excess Cash Flow" means the amount of cash available in the
account of the Issuer opened and maintained as the operating
account on the last day of each semi-annual period in excess of the
aggregate of:
(i) the amount of expenditure (including working capital and
capital expenditure which has been approved by the Majority
Lenders ), and
(ii) Baht 50,000,000;
"Existing Secured Creditor" means BBL in such capacity;
"Existing Security" means the list of security set out in Appendix 2;
"Existing Unsecured Creditors" means SCB, KTB, BAY and the Foreign
Creditors;
"Existing Working Capital Facilities" means the commitment amount
up to Baht 1,465,000,000, the details of which are set out in
Appendix 3;
"Facilities" means the Restructured Debt and New Working Capital
Facilities;
"Facility Agent" means the entity to be appointed as Facility Agent
under the Term Sheet;
"Financing Documents" means the terms and conditions under the
existing agreements between the Issuer and the Local Lenders in
respect of the Restructured Debt;
"Foreign Creditors" means (i) Central Finance (BVI) Company Limited,
(ii) Grand Commercial Bank, (iii) Cosmos Bank, Taiwan,
(iv) Advance Engineering (BVI) Company Limited, and (v) the
Noteholders;
"KTB" means Krung Thai Bank Public Company Limited;
"Local Lenders" means BBL, SCB, KTB and BAY;
"Majority Lenders" means one or more Creditors holding more than
50% of the outstanding amount under the Facilities;
"Major Shareholders" means Mycene Holdings (B.V.I.) Ltd., the
Sponsor, Tuntex Distinct Corporation and T.D.C. (Thailand) Company
Limited or otherwise as mutually agreed by the Issuer and BBL;
"New Working Capital Facilities" means the commitment amount up to Baht
450,000,000 from the Local Lenders;
"Restructured Debt" means the Baht Tranche, the Dollar Tranche and
the Existing Working Capital Facilities;
"Restructuring Date" means the date on which the Restructuring
Documentation have been executed;
"Restructuring Documentation" means the Thai Banks Restructuring
Agreement, the Inter-creditors Agreement, the Sponsor Support
Agreement and the Shareholders' and/or Sponsor's Undertaking
Agreement as set out in the Term Sheet;
"SCB" means Siam Commercial Bank Public Company Limited;
"Sponsor" means Mr. Yu-how Chen;
"Supplier" means Tuntex Petrochemicals (Thailand) Public Company
Limited;
"Supplier's Overdue Debt" means the principal amount of Baht
800,000,000 owed by the Issuer to the Supplier as at 29 September
2000; and
"Term Sheet" means the term sheet dated 9 November 2000 between
the Issuer and BBL.
III. Appointment of Committee
A committee (the "Committee") consisting of two institutions (the
"Voting Members") to be selected by the Noteholders as described
in this paragraph and one more institution (the "Non-Voting
Member") to be appointed by the Issuer by written notice to the
Noteholders be and it is hereby (subject to appointment of the
Non-Voting Member by the Issuer and to appointment of the Voting
Members by the Noteholders as described in this paragraph)
constituted in order to review and approve on behalf of the
Noteholders all such agreements, deeds or other documents (the
"Documents") as may be deemed necessary or desirable by the
Committee in order to implement the Proposed Terms. In order to
constitute the Committee, the Issuer will nominate two institutions
to be Voting Members. Such nominations shall be notified to the
Noteholders through the clearing systems. Noteholders shall have 7
calendar days from the date of such notification to indicate whether
or not they approve the nomination of such institutions as the
Voting Members. Any Noteholder wishing to make such an indication must
send a notice to that effect through the clearing systems to the Fiscal
Agent. The nominated institutions shall become the Voting Members if
they are approved by the holders of more than 50 per cent. of the
outstanding principal amount of the Notes during that period. As
soon as practicable after the end of such period of 7 calendar
days or on such earlier date as the holders of more than 50 per
cent. in outstanding principal amount of Notes have approved such
nomination, the Fiscal Agent shall notify the Noteholders whether
such nomination has been approved. If it is not approved, the
Issuer will make a further nomination and Noteholders shall again
be asked to approve such nomination as set forth above. Upon
approval by the Noteholders as described above, the nominated
institutions shall become the Voting Members and upon appointment by
the Issuer as described above the relevant institution shall become
the Non-Voting Member, whereupon the Committee shall henceforth
be fully constituted. The Restructuring Documentation shall be
required to be approved by the Voting Members unanimously
whereupon it shall be binding on the Noteholders whether or not
they are Voting Members and whether or not duly voted for or
against the appointment of the Voting Members and each of the
Noteholders shall be bound to give effect to the same
accordingly. For the avoidance of doubt, the Non-Voting Member
shall not have any power to approve any Restructuring
Documentation. The Committee shall not be subject to any
liability whatsoever as a result of a decision to approve or not
approve any Restructuring Documentation."
The Issuer has accordingly convened the Meeting by this Notice to request
the agreement by the Noteholders by Extraordinary Resolution to the
matters contained in the Resolution.
Attention of the Noteholders is drawn to the matters set out below.
Capitalised terms used below and not otherwise defined herein have the
meanings given to them in the Agency Agreement.
Attendance and Voting
1 .If a Noteholder wishes to vote in person the Noteholder should instruct
Morgan Guaranty Trust Company of New York, Brussels office, as operator of
the Euroclear system and Clearstream Banking, societe anonyme, Luxembourg
(together the "Clearing Systems"), as appropriate, to inform any Paying Agent
no later than 48 hours before the scheduled time for the Meeting of its
desire to vote in person and to request such Paying Agent to issue a Voting
Certificate in favour of such Noteholder.
2. If a Noteholder wishes to appoint a proxy (as defined in the Agency
Agreement) it should instruct the relevant Clearing System to inform
any Paying Agent no later than 48 hours before the scheduled time for
the Meeting of its desire to appoint a proxy and to request such
Paying Agent to issue a Block Voting Instruction. Such instructions
should include instructions as to the number of votes to be cast for
and against the Extraordinary Resolution and (unless the Noteholder
wishes the Paying Agent to select a proxy on its behalf, as to which
see the following paragraph) details of the relevant proxy.
3. If a Noteholder wishes a Paying Agent to appoint a proxy to vote on
its behalf at the Meeting, the Noteholder should instruct the relevant
Clearing System to request the Paying Agent to issue the Block Voting
Instruction to a proxy of its choice, instructing such proxy to cast
such vote(s) in the manner specified by such Noteholder.
4. Since the Notes are represented by a Permanent Global Note, no
representative of a Noteholder (in its capacity as such) will be
permitted to attend the Meeting unless it holds a Voting Certificate or is
a proxy appointed by a Block Voting Instruction, in either case issued
by a Paying Agent.
Quorum
1. The quorum shall be one or more persons present in person holding Voting
Certificates or being proxies and holding or representing in the aggregate
not less than 75 per cent. of the principal amount of the Notes for the time
being outstanding.
2. If within 15 minutes from the time fixed for the Meeting a quorum is not
present the Meeting shall stand adjourned for such period, not being less
than 14 days nor more than 42 days, and to such time and place, as may
be appointed by the Chairman of the Meeting and approved by the Fiscal
Agent. In view of the very short period of time available for achieving a
quorum, and the need to check Voting Certificates and Block Voting
Instructions and to complete certain other administrative tasks before
the Meeting can commence, Noteholders bearing Voting Certificates, and
proxies, are requested to ensure that they arrive at least fifteen minutes
prior to the scheduled time for the Meeting.
3. In the event that a quorum is not achieved within fifteen minutes of the
scheduled time and the Meeting is adjourned, at the adjourned Meeting the
quorum shall be one or more persons present in person holding Voting
Certificates or being proxies and holding or representing in the aggregate
not less than 25% of the principal amount of the Notes for the time being
outstanding. At least 10 days' notice (exclusive of the day on which the
notice is given and the day on which the Meeting is to be held) must be
given of any adjourned Meeting in the same manner as notice of the original
Meeting save that the quorum requirements for the adjourned Meeting must be
specified in such notice.
4. Every question submitted to the Meeting will be decided on a show of hands
unless a poll is duly demanded by the Chairman of the Meeting, the Issuer or
by one or more persons holding Voting Certificates or being proxies and
holding or representing in the aggregate not less than two per cent. of the
principal amount of the Notes then outstanding. On a show of hands every
person who is present in person and produces a Voting Certificate or is a
proxy shall have one vote. On a poll every person who is so present has one
vote in respect of each U.S.$10,000 in aggregate face amount of Notes
represented by the Voting Certificate so produced or in respect of which he
is a proxy. On both a show of hands and on a poll, the Chairman has a
casting vote in addition to any votes to which he may be entitled as a
holder of a Voting Certificate or as a proxy or representative.
5. To be passed, the Extraordinary Resolution requires a majority in
favour consisting of not less than three-quarters of the persons voting (on a
show of hands), or a majority in favour consisting of not less than three-
quarters of the votes cast (on a poll). If passed, the Extraordinary
Resolution will be binding on all the Noteholders, whether or not
present at such Meeting and whether or not voting, and upon all the
holders of the coupons relating to the Notes.
6. Notice of the result of the Meeting will be given in accordance with
the Terms and Conditions of the Notes within 14 days of the passing of
the Resolution.
Additional Information
Copies of the Original Agency Agreement and the Supplemental Agency Agreement
and the terms and conditions of the Notes as amended by an Extraordinary
Resolution of Noteholders passed at a meeting of Noteholders on 4 December 1998
are available for inspection at the offices of the Paying Agents as specified
below and, in addition, at the offices of Asia Financial Products (HK) Limited
as specified below. In addition, further information may be obtained from Stuart
Somer or Grace Tan of Asia Financial Products (HK) Limited on telephone (+852)
2536 4567 or facsimile (+852) 2147 2813.
The Fiscal Agent
Deutsche Bank AG, Hong Kong Branch
55th Floor, Cheung Kong Center
2 Queen's Road Central
Hong Kong
The Paying Agent
Deutsche Bank AG London
Winchester House
London EC2N 2DB
United Kingdom
Financial Advisor
Asia Financial Products (HK) Limited
907 Asia Pacific Finance Tower
Citibank Plaza
3 Garden Road
Central
Hong Kong
Dated: 29 November 2000
APP
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