UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 6-K
Report of Foreign Private Issuer
Pursuant to Rule 13a-16 or 15d-16
of the Securities Exchange Act of 1934
FOR THE MONTH OF FEBRUARY 2016
COMMISSION FILE NUMBER: 001-33863
XINYUAN REAL ESTATE CO., LTD.
27/F, China Central Place, Tower II
79 Jianguo Road, Chaoyang District
Beijing 100025
People’s Republic of China
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F x Form 40-F o
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): o
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): o
This Form 6-K is hereby incorporated by reference into the registration statements of Xinyuan Real Estate Co., Ltd. (“Xinyuan” or the “Company”) on Form S-8 (Registration Numbers 333-152637, 333-198525 and 333-205371) and on Form F-3 (Registration Number 333-192046) and any outstanding prospectus, offering circular or similar document issued or authorized by the Company that incorporates by reference any of the Company’s reports on Form 6-K that are incorporated into its registration statements filed with the Securities and Exchange Commission, and this Form 6-K shall be deemed a part of each such document from the date on which this Form 6-K is filed, to the extent not superseded by documents or reports subsequently filed or furnished by the Company under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended.
TABLE OF CONTENTS
| Page | ||
| Signature | 2 | |
| Exhibit Index | 3 | |
| Exhibit 99.1 | Announcement, dated February 3, 2016, of Execution of Indenture Supplements in respect of (i) 13.25% Senior Notes due 2018 and (ii) 13% Senior Notes due 2019 | |
| Exhibit 99.2 | Indenture Supplement No. 4, dated as of February 3, 2016, among Citicorp International Limited as Trustee, Citicorp International Limited as Shared Security Agent, Xinyuan Real Estate Co., Ltd. and the entities listed in Schedule I as the Subsidiary Guarantors, to the Indenture, dated as of May 3, 2013, relating to the Company's 13.25% Senior Notes Due 2018 | |
| Exhibit 99.3 | Indenture Supplement No. 2, dated as of February 3, 2016, among Citicorp International Limited as Trustee, Citicorp International Limited as Shared Security Agent, Xinyuan Real Estate Co., Ltd. and the entities listed in Schedule I as the Subsidiary Guarantors, to the Indenture, dated as of December 6, 2013, relating to the Company's 13% Senior Notes Due 2019 |
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Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| Xinyuan Real Estate Co., Ltd. | |||
| By: |
/s/ Huaiyu Liu | ||
| Name: | Huaiyu Liu | ||
| Title: | Chief Financial Officer | ||
Date: February 3, 2016
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| Exhibit Number |
|
| Exhibit 99.1 | Announcement, dated February 3, 2016, of Execution of Indenture Supplements in respect of (i) 13.25% Senior Notes due 2018 and (ii) 13% Senior Notes due 2019 |
| Exhibit 99.2 | Indenture Supplement No. 4, dated as of February 3, 2016, among Citicorp International Limited as Trustee, Citicorp International Limited as Shared Security Agent, Xinyuan Real Estate Co., Ltd. and the entities listed in Schedule I as the Subsidiary Guarantors, to the Indenture, dated as of May 3, 2013, relating to the Company's 13.25% Senior Notes Due 2018 |
| Exhibit 99.3 | Indenture Supplement No. 2, dated as of February 3, 2016, among Citicorp International Limited as Trustee, Citicorp International Limited as Shared Security Agent, Xinyuan Real Estate Co., Ltd. and the entities listed in Schedule I as the Subsidiary Guarantors, to the Indenture, dated as of December 6, 2013, relating to the Company's 13% Senior Notes Due 2019 |
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Exhibit 99.1
This announcement does not constitute an offer to sell or the solicitation of an offer to buy any securities in the United States or any other jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No securities may be offered or sold in the United States absent registration or an applicable exemption from registration requirements. Any public offering of securities to be made in the United States will be made by means of a prospectus. Such prospectus will contain detailed information about the company making the offer, management, as well as financial statements. No public offer of securities is to be made by the Company in the United States.
Xinyuan Real Estate Co., Ltd.
(Incorporated in the Cayman Islands with Limited Liability)
Execution of Indenture Supplements in respect of
(i) 13.25% Senior Notes Due 2018, and
(ii) 13% Senior Notes Due 2019
Announcement
Hong Kong – February 3, 2016 – Reference is made to the announcement of Xinyuan Real Estate Co., Ltd. (the “Company”) (NYSE: XIN) dated February 3, 2016 in relation to the receipt of the requisite number of consents necessary for certain proposed amendments (the “Proposed Amendments”) to:
| · | the Indenture, dated as of May 3, 2013 (as supplemented or amended to the date hereof, the “2018 Notes Indenture”), by and between the Company, the Subsidiary Guarantors (as defined therein) and Citicorp International Limited, as trustee (the “2018 Notes Trustee”) and as shared security agent (the “Shared Security Agent”), governing its 13.25% Senior Notes Due 2018 (Common Code 092214109, ISIN No. XS0922141097) (the “2018 Notes”) pursuant to a consent solicitation statement dated January 19, 2016 (the “Consent Solicitation Statement”); and |
| · | the Indenture, dated as of December 6, 2013 (as supplemented or amended to the date hereof, the “2019 Notes Indenture” and, together with the 2018 Notes Indenture, the “Indentures”), by and between the Company, the Subsidiary Guarantors (as defined therein) and Citicorp International Limited, as trustee (the “2019 Notes Trustee”), and the Shared Security Agent, governing its 13% Senior Notes Due 2019 (Common Code 099896493, ISIN No. XS0998964935) (the “2019 Notes” and, together with the 2018 Notes, the “Notes”) pursuant to the Consent Solicitation Statement. |
Capitalized terms used herein but not defined shall have the meanings ascribed to them in the Indentures.
The Company is pleased to announce the execution of (i) the indenture supplement dated February 3, 2016 (the “2018 Notes Indenture Supplement”), by and among the Company, the Subsidiary Guarantors, the 2018 Notes Trustee and the Shared Security Agent, giving effect to the Proposed Amendments in compliance with the conditions contained in the 2018 Notes Indenture and (ii) the indenture supplement dated February 3, 2016 (the “2019 Notes Indenture Supplement” and, together with the 2018 Notes Indenture Supplement, the “Indenture Supplements”), by and among the Company, the Subsidiary Guarantors, the 2019 Notes Trustee and the Shared Security Agent, giving effect to the Proposed Amendments in compliance with the conditions contained in the 2019 Notes Indenture. The Indenture Supplements amended the Indentures to give the Company additional flexibility in pursuing new business opportunities and new sources of capital. The Company will send the 2018 Notes Indenture Supplement and the 2019 Notes Indenture Supplement to holders of the 2018 Notes and 2019 Notes, respectively, upon request.
For a detailed statement of the Proposed Amendments, holders of the Notes should refer to the Consent Solicitation Statement and to related documents.
The Company expects to pay any consent fee due as soon as practicable in accordance with the terms set forth in the Consent Solicitation Statement.
The distribution of this announcement in certain jurisdictions may be restricted by law. Persons into whose possession this press release comes are required to inform themselves about, and to observe, any such restrictions.
ABOUT THE COMPANY
The Company is an NYSE-listed real estate developer and property manager primarily in China and recently in other countries. In China, the Company develops and manages large scale, high quality real estate projects in over ten tier one and tier two cities, including Beijing, Shanghai, Zhengzhou, Jinan, Xi’an, Suzhou, among others. The Company was one of the first Chinese real estate developers to enter the U.S. market and over the past few years has been active in real estate development in New York. The Company aims to provide comfortable and convenient real estate related products and services to middle-class consumers. For more information, please visit http://www.xyre.com.
FORWARD-LOOKING INFORMATION
Forward-looking statements in this announcement, including those statements relating to the Consent Solicitation, such as the payment of the consent fee, are based on current expectations. These statements are not guarantees of future events or results. Future events and results involve some risks, uncertainties and assumptions that are difficult to predict. Actual events and results could vary materially from the description contained herein due to many factors including changes in the market and price for the Notes; changes in the business and financial condition of the Company and its subsidiaries; changes in the debt markets in general.
| On behalf of the Board | |
| Xinyuan Real Estate Co., Ltd. | |
| Zhang Yong | |
| Chairman |
February 3, 2016
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Exhibit 99.2
EXECUTION VERSION
INDENTURE SUPPLEMENT NO. 4
dated as of February 3, 2016
among
Citicorp
International Limited
as Trustee,
Citicorp International Limited
as Shared Security Agent,
XINYUAN REAL ESTATE CO., LTD.
and
The entities listed in Schedules I hereto
as the Subsidiary Guarantors
13.25% Senior Notes Due 2018
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INDENTURE SUPPLEMENT NO. 4, dated as of February 3, 2016 (this “Indenture Supplement”), pursuant to the Indenture dated as of May 3, 2013 (as amended, restated or supplemented from time to time, the “Indenture”), by and among Xinyuan Real Estate Co., Ltd., a company incorporated with limited liability under the laws of the Cayman Islands (the “Company”), Citicorp International Limited, as trustee (the “Trustee”), Citicorp International Limited, as shared security agent (the “Shared Security Agent”), and the entities listed in Schedule I hereto collectively (the “Subsidiary Guarantors”). Unless otherwise defined herein, capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
RECITALS
WHEREAS, the Company, the Subsidiary Guarantors party thereto and the Trustee entered into the Indenture, dated as of May 3, 2013, relating to the Company’s 13.25% Senior Notes Due 2018 (the “Notes”).
WHEREAS, Section 9.02 of the Indenture provides that the Indenture may be amended with the consent of the Holders of not less than a majority in aggregate principal amount of the outstanding Notes; provided that certain amendments may not be affected without the consent of each Holder of the Notes affected;
WHEREAS, the Company desires and has requested the Trustee to join with it in entering into this Indenture Supplement for the purpose of amending the Indenture in certain respects as permitted by Section 9.02 of the Indenture;
WHEREAS, the Company has received the consent of the Holders of not less than a majority in aggregate principal amount of the outstanding Notes and has satisfied all other conditions precedent, if any, provided under the Indenture to enable the Company and the Trustee to enter into this Indenture Supplement, all as certified by an Officers’ Certificate, delivered to the Trustee simultaneously with the execution and delivery of this Indenture Supplement as contemplated by Section 9.04 of the Indenture; and
WHEREAS, the Company has delivered to the Trustee simultaneously with the execution and delivery of this Indenture Supplement an Opinion of Counsel relating to this Indenture Supplement as contemplated by Section 9.04 of the Indenture;
NOW, THEREFORE, in
consideration of the foregoing and the mutual promises and covenants contained herein and for other good and valuable consideration,
each party hereby agrees, for the benefit of the others and for the equal and ratable benefit of the Holders of the Notes, as
follows (amended texts of the Indenture are shown in quotation marks below, with additions shown in double
underscore and deletions shown in strikethrough):
ARTICLE I
AMENDMENTS TO THE INDENTURE
Section 1.1 Amendments to certain defined terms in Section 1.01 of the Indenture. The following defined terms contained in Section 1.01 of the Indenture are hereby amended and restated as follows:
““Commodity Agreement”
means any spot, forward or option commodity price protection agreements or other similar agreement or arrangement designed to
protect againstreduce or manage exposure to fluctuations
in commodity prices.”
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““Contractor Guarantees”
means any Guarantee by the Company or any Restricted Subsidiary of Indebtedness of any contractor, builder or other similar Person
engaged by the Company or such Restricted Subsidiary in connection with the development, construction or improvement of real or
personal property or equipment to be used in a Permitted Business by the Company or any Restricted Subsidiary
in the ordinary course of business, which Indebtedness was Incurred by such contractor, builder or other similar Person to finance
the cost of such development, construction or improvement.”
““Currency Agreement”
means any foreign exchange forward contract, currency swap agreement or other similar agreement or arrangement designed to protect
againstreduce or manage exposure to fluctuations in foreign
exchange rates.”
““Entrusted Loans”
means borrowings by a PRCNon-Guarantor Restricted
Subsidiary from a bank that are secured by a pledge of deposits made byfrom
the Company or another PRC Restricted Subsidiary (whether
directly or through or facilitated by a bank or other financial institution)to the lending bank as security
for such borrowings, provided that such borrowings are not reflected on the consolidated balance sheet of the
Company.”
““Indebtedness” means, with respect to any Person at any date of determination (without duplication):
(1) all indebtedness of such Person for borrowed money;
(2) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(3) all obligations of such Person in respect of letters of credit, bankers’ acceptances or other similar instruments;
(4) all obligations of such Person to pay the deferred and unpaid purchase price of property or services, except Trade Payables;
(5) all Capitalized Lease Obligations and Attributable Indebtedness;
(6) all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided that the amount of such Indebtedness shall be the lesser of (a) the Fair Market Value of such asset at such date of determination and (b) the amount of such Indebtedness;
(7) all Indebtedness of other Persons Guaranteed by such Person to the extent such Indebtedness is Guaranteed by such Person;
(8) to the extent not otherwise included in this definition, Hedging Obligations; and
(9) all Disqualified Stock issued by such Person valued at the greater of its voluntary or involuntary liquidation preference and its maximum fixed repurchase price plus accrued dividends.
Notwithstanding the foregoing,
Indebtedness shall not include any (1) capital commitments, pre-sale receipts in advance from customers, deferred payment obligations
or similar obligations, Incurred in the ordinary course of business in connection with the acquisition, development, construction
or improvement of real or personal property (including land use rights) to be used in a Permitted Business or
(2) Entrusted Loans; provided that such Indebtedness is not reflected on the balance sheet of the Company or any Restricted
Subsidiary (contingent obligations and commitments referred to in a footnote to financial statements and not otherwise reflected
on the balance sheet will not be deemed to be reflected on such balance sheet). The amount of Indebtedness of any Person at any
date shall be the outstanding balance at such date of all unconditional obligations as described above and, with respect to contingent
obligations, the maximum liability upon the occurrence of the contingency giving rise to the obligation; provided that:
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(A) the amount outstanding at any time of any Indebtedness issued with original issue discount is the face amount of such Indebtedness less the remaining unamortized portion of the original issue discount of such Indebtedness at such time as determined in conformity with GAAP,
(B) money borrowed and set aside at the time of the Incurrence of any Indebtedness in order to prefund the payment of the interest on such Indebtedness shall not be deemed to be “Indebtedness” so long as such money is held to secure the payment of such interest, and
(C) the amount of Indebtedness with respect to any Hedging Obligation shall be (i) zero if Incurred pursuant to clause (vi) of Section 4.05(b) or (ii) equal to the net amount payable by such Person if the Commodity Agreement, Currency Agreement or Interest Rate Agreement giving rise to such Hedging Obligation were terminated at that time due to default by such Person if not Incurred pursuant to clause (vi) of Section 4.05(b).”
““Interest Rate
Agreement” means any interest rate protection agreement, interest rate future agreement, interest rate option agreement,
interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement, option
or future contract or other similar agreement or arrangement designed to protect againstreduce
or manage exposure to fluctuations in interest rates.”
““Minority Joint
Venture” means any corporation, association or other business entity that is accounted for by the equity method of accounting
in accordance with GAAP by the Company or a Restricted Subsidiary and primarily engaged in the Permitted Businesses,
and such Minority Joint Venture’s Subsidiaries.”
““Permitted Investment” means:
(1) any Investment in the Company
or a Restricted Subsidiary that is primarily engaged in a Permitted Business or a Person which will, upon the
making of such Investment, become a Restricted Subsidiary that is primarily engaged in a Permitted Business or
be merged or consolidated with or into or transfer or convey all or substantially all its assets to, the Company or a Restricted
Subsidiary that is primarily engaged in a Permitted Business;”
(2) Temporary Cash Investments;
(3) payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses in accordance with GAAP;
(4) stock, obligations or securities received in satisfaction of judgments;
(5) an Investment in an Unrestricted Subsidiary consisting solely of an Investment in another Unrestricted Subsidiary;
(6) any
Investment pursuant to a Hedging Obligation designed solely to protectto
reduce or manage the exposure of the Company or any Restricted Subsidiary againstto
fluctuations in commodity prices, interest rates or foreign currency exchange rates and not for speculation;”
(7) receivables owing to the Company or any Restricted Subsidiary, if created or
acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;
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(8) Investments made by the Company or any Restricted Subsidiary consisting of consideration received in connection with an Asset Sale made in compliance with Section 4.13;
(9) pledges or deposits (i) with respect to leases or utilities provided to third parties in the ordinary course of business or (ii) otherwise described in the definition of “Permitted Liens” or made in connection with Liens permitted under Section 4.07;
(10) any Investment pursuant to Pre-Registration Mortgage Guarantees or Contractor Guarantees by the Company or any Restricted Subsidiary otherwise permitted to be Incurred under this Indenture;
(11) Investments in securities of trade creditors, trade debtors or customers received pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such trade creditor, trade debtor or customer;
(12) advances to contractors and suppliers for the acquisition of assets or consumables or services in the ordinary course of business that are recorded as deposits or prepaid expenses on the Company’s consolidated balance sheet;
(13) deposits of pre-sale proceeds made in order to secure the completion and delivery of pre-sold properties and issuance of the related land use title in the ordinary course of business;
(14) deposits made in order to comply with statutory or regulatory obligations to
maintain deposits for workers compensation claims and other purposes specified by statute or regulation from time to time in the ordinary course of business;
(15) deposits made in order to secure the performance of the Company or any
Restricted Subsidiary and prepayments made in connection with the acquisition of real property or land use rights by the Company or any Restricted Subsidiary, in each case in the ordinary course of business;
(16) advances in the ordinary course of business to government authorities or
government-affiliated entities in the PRC for the purpose of the development and preparation by such government authority or government affiliated entity of primary land for auction purposes which advances are recorded as deposits or prepaid expenses on the Company’s consolidated balance sheet to the extent each such advance is on normal commercial terms including being subject to repayment from the relevant government authority;
(17) an acquisition of assets, Capital Stock or other securities by the Company or a Subsidiary for consideration to the extent such consideration consists solely of Common Stock of the Company;
(18) repurchases of the Notes;
(19) Guarantees permitted under Section 4.05(b)(xx);
(20) obligations (but not
payments thereon) with respect to homeowners association obligations, community facility district bonds, metro district bonds,
mello-roos bonds and subdivision improvement bonds and similar bonding requirements arising in the ordinary course of business
of a homebuilder; and
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(21) any Investment (including any deemed Investment upon the redesignation of a Restricted Subsidiary as an Unrestricted Subsidiary or upon the sale of Capital Stock of a Restricted Subsidiary) by the Company or any Restricted Subsidiary in any Person (other than a Restricted Subsidiary), provided that:
| (i) | the aggregate of all Investments made under this clause (21) since the Original Issue Date shall not exceed in aggregate an amount equal to 20% of Total Assets. Such aggregate amount of Investments shall be calculated after deducting an amount equal to the net reduction in all Investments made under this clause (21) since the Original Issue Date resulting from: |
| (A) | payments of interest on Indebtedness, dividends or repayments of loans or advances made under this clause, in each case to the Company or any Restricted Subsidiary (except, in each case, to the extent any such payment or proceeds are included in the calculation of Consolidated Net Income), |
| (B) | the unconditional release of a Guarantee provided by the Company or a Restricted Subsidiary after the Original Issue Date under this clause (21) of an obligation of any such Person, or |
| (C) | to the extent that an Investment made after the Original Issue Date under this clause (21) is sold or otherwise liquidated or repaid for cash, the lesser of (x) cash return of capital with respect to such Investment (less the cost of disposition, if any) and (y) the initial amount of such Investment, not to exceed, in each case, the amount of Investments made by the Company or a Restricted Subsidiary after the Original Issue Date in any such Person pursuant to this clause (21); |
| (ii) |
| (iii) |
| (iv) | no Default has occurred and is continuing or would occur as a result of such Investment; and |
| (v) | in the case of any Investment by the Company or any Restricted Subsidiary in a Person of which less than 50% of the Voting Power of the outstanding Voting Stock is owned, directly or indirectly, by the Company or its Restricted Subsidiaries, at the time of such Investment, the Company could Incur at least US$1.00 of Indebtedness under the proviso in Section 4.05(a); provided however that this paragraph (v) shall not apply if such Investment would otherwise have been permitted under this clause (21) and such Investment, together with the aggregate amount of all other Investments made in reliance on this proviso since the Original Issue Date, shall not exceed in aggregate an amount equal to 5% of Total Assets (such aggregate amount of Investments shall be calculated after deducting an amount equal to the net reduction in all Investments made in reliance on this proviso since the Original Issue Date resulting from the events set forth in paragraphs (i)(A) through (i)(C) above, where references in such paragraphs to “under this clause (21)” shall be substituted with “in reliance on the proviso in paragraph (v)”). |
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For the avoidance of doubt, the
value of each Investment made pursuant to this clause (21) shall be valued at the time such Investment is made.;
and
(22) any Investment deemed to have been made by the Company or any Restricted Subsidiary in the Restructuring Group in connection with the Restructuring upon designation of such Subsidiaries as Unrestricted Subsidiaries, provided that (A) (i) the Board of Directors has determined in good faith that the designation of such Subsidiaries as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (ii) at the time of such designation, such Subsidiaries remain Subsidiaries of the Company, and (iii) at the time of such designation, such Subsidiaries remain primarily engaged in the businesses other than property development business; and (B) the aggregate of all Investments made under this clause (22) since the Effective Time shall not exceed an amount equal to 10% of Total Assets (for the avoidance of doubt, any portion of such Investments exceeding 10% of Total Assets shall not constitute a Permitted Investment pursuant to this clause (22) but may be made, characterized and accounted for in accordance with the other provisions of this Indenture); and provided further that, at the time when (x) the Company ceases to hold, directly or indirectly, at least 30% of the Voting Stock of any entity so designated as an Unrestricted Subsidiary or (y) any Person or group of Persons other than the Company and its Subsidiaries acquires a higher percentage of the Voting Stock of such entity than the percentage held directly or indirectly by the Company, the Company will be deemed to make an Investment in such entity equal to the Fair Market Value of any Investment that the Company retains, directly or indirectly, in such entity immediately following such event.”
““Permitted Liens” means:
(1) Liens for taxes, assessments, governmental charges or claims that are being contested in good faith by appropriate legal or administrative proceedings promptly instituted and diligently conducted and for which a reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made;
(2) statutory and common law Liens of landlords and carriers, warehousemen, mechanics, suppliers, repairmen or other similar Liens arising in the ordinary course of business and with respect to amounts not yet delinquent or being contested in good faith by appropriate legal or administrative proceedings promptly instituted and diligently conducted and for which a reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made;
(3) Liens incurred or deposits made to secure the performance of tenders, bids, leases, statutory or regulatory obligations, bankers’ acceptances, surety and appeal bonds, government contracts, performance and return-of-money bonds and other obligations of a similar nature incurred in the ordinary course of business (exclusive of obligations for the payment of borrowed money);
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(4) leases or subleases granted to others that do not materially interfere with the ordinary course of business of the Company and its Restricted Subsidiaries, taken as a whole;
(5) Liens encumbering property or assets under construction arising from progress or partial payments by a customer of the Company or its Restricted Subsidiaries relating to such property or assets;
(6) Liens on property of, or on shares of Capital Stock or Indebtedness of, any Person existing at the time such Person becomes, or becomes a part of, any Restricted Subsidiary; provided that such Liens do not extend to or cover any property or assets of the Company or any Restricted Subsidiary other than the property or assets acquired; provided further that such Liens were not created in contemplation of or in connection with the transactions or series of transactions pursuant to which such Person became a Restricted Subsidiary;
(7) Liens in favor of the Company or any Restricted Subsidiary;
(8) Liens arising from the rendering of a final judgment or order against the Company or any Restricted Subsidiary that does not give rise to an Event of Default;
(9) Liens securing reimbursement obligations with respect to letters of credit that encumber documents and other property relating to such letters of credit and the products and proceeds thereof;
(10) Liens encumbering customary
initial deposits and margin deposits, and other Liens that are within the general parameters customary in the industry
and incurred in the ordinary course of business, in each case, securing Indebtedness under Hedging Obligations permitted
by clause (vi) of Section 4.05(b);”
(11) Liens existing on the Original Issue Date;
(12) Liens securing Indebtedness which is Incurred to refinance secured Indebtedness which is permitted to be Incurred under clause (v) of Section 4.05(b); provided that such Liens do not extend to or cover any property or assets of the Company or any Restricted Subsidiary other than the property or assets securing the Indebtedness being refinanced;
(13) Liens under the Security Documents;
(14) Liens securing any Permitted Pari Passu Secured Indebtedness that complies with each of the requirements set forth under Section 4.22;
(15) any interest or title of a lessor in the property subject to any operating lease;
(16) Liens securing Indebtedness of the Company or any Restricted Subsidiary under any Pre-Registration Mortgage Guarantee which is permitted to be Incurred under clause (vii) of Section 4.05(b);
(17) easements, rights-of-way, municipal and zoning ordinances or other restrictions as to the use of properties in favor of governmental agencies or utility companies that do not materially adversely affect the value of such properties or materially impair the use for the purposes of which such properties are held by the Company or any Restricted Subsidiary;
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(18) Liens (including extensions and renewals thereof) upon real or personal property; provided that (a) such Lien is created solely for the purpose of securing Indebtedness of the type described under clause (viii) of Section 4.05(b) and such Lien is created prior to, at the time of or within 180 days after the later of the acquisition or the completion of development, construction or improvement of such property, (b) the principal amount of the Indebtedness secured by such Lien does not exceed 100% of the cost of such property, development, construction or improvement and (c) such Lien shall not extend to or cover any property or assets other than such item of property and any improvements on such item, provided that, in the case of clauses (b) and (c), such Lien may cover other property or assets (instead of or in addition to such item of property or improvements) and the principal amount of Indebtedness secured by such Lien may exceed 100% of such cost if (x) such Lien is incurred in the ordinary course of business and (y) the aggregate book value of property or assets (as of the last day of the most recent fiscal quarter period for which consolidated financial statements of the Company (which the Company shall use its reasonable best efforts to compile in a timely manner) are available (which may include internal consolidated financial statements) or, if any such property or assets have been acquired since the date of such financial statements, the cost of such property or assets) subject o Liens incurred pursuant to this clause (18) does not exceed 130% of the aggregate principal amount of Indebtedness secured by such Liens;
(19) Liens on deposits of pre-sale proceeds made in order to secure the completion and delivery of pre-sold properties and issuance of the related land use title made in the ordinary course of business and not securing Indebtedness of the Company or any Restricted Subsidiary;
(20) Liens on deposits made in order to comply with statutory obligations to maintain deposits for workers compensation claims and other purposes specified by statute made in the ordinary course of business and not securing Indebtedness of the Company or any Restricted Subsidiary;
(21) Liens on deposits made in order to secure the performance of the Company or any Restricted Subsidiary in connection with the acquisition of real property or land use rights by the Company or any Restricted Subsidiary in the ordinary course of business and not securing Indebtedness of the Company or any Restricted Subsidiary;
(22) Liens incurred or deposits made to secure Entrusted Loans;
(23) Liens on the Capital Stock of the Person that is to be acquired under the relevant Staged Acquisition Agreement securing Indebtedness which is permitted to be Incurred under clause (xv) of Section 4.05(b);
(24) Liens securing Indebtedness permitted to be under clause (xiv) of Section 4.05(b);
(25) Liens on the Capital
Stock of a PRC Project Company granted by the Company or any PRC Restricted Subsidiary in favor of any Trust
Company Investor (including the sale or transfer of such Capital Stock to such Trust Company Investor) in respect of, and to secure,
the Indebtedness permitted to be Incurred under clause (xvi) of Section 4.05(b);
(26) Liens on cash deposits, bank accounts or other assets to secure Bank Deposit Secured Indebtedness permitted to be Incurred under clause (xvii) of Section 4.05(b);
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(27) Liens on Investment Properties securing Indebtedness of the Company or any Restricted Subsidiary permitted to be Incurred under clause (b)(xviii) of Section 4.05(b);
(28) Liens securing Indebtedness of Restricted Subsidiaries (other than Subsidiary
Guarantors or JV Subsidiary Guarantors) Incurred pursuant to clause (xix) of Section 4.05(b);
(29) Liens securing Indebtedness Incurred under clause (xx) of Section 4.05(b);
(30) Liens on assets of a Non-Guarantor Subsidiary securing any Permitted Subsidiary Indebtedness of any Non-Guarantor Subsidiary permitted to be Incurred under Section 4.05(a);
(31) Liens Incurred to secure cash management services or to implement cash pooling arrangements in the ordinary course of business;
(32) Liens for homeowner,
property owner, condominium and similar association fees, assessments and other payments; and
(33) Liens arising from filing Uniform Commercial Code financing statements
regarding leases; and
(34) Liens to secure Indebtedness Incurred under clause (xxii) of Section 4.05(b).
provided that, with respect to the Collateral, “Permitted Liens” shall only refer to the Liens described in clauses (1), (6), (13) and (14) of this definition.”
““Permitted Subsidiary
Indebtedness” means Indebtedness of, and all Preferred Stock issued by, the Non-Guarantor Subsidiaries, taken as a whole;
provided that, on the date of the Incurrence of such Indebtedness and after giving effect thereto and the application of
the proceeds thereof, the aggregate principal amount outstanding of all such Indebtedness (excluding Public Indebtedness and any
Indebtedness of any Non-Guarantor Subsidiary permitted under clauses (i), (ii), (iv), (vi) and (vii) of Section 4.05(b)) does
not exceed an amount equal to 20.030.0% of Total Assets.”
““PRC Non-Guarantor Subsidiaries” means all Restricted Subsidiaries organized under the laws of the PRC.”
““PRC Project
Company” means any corporation, association or other business entity organized under the laws of the PRC primarily engaged
in a Permitted Businessproperty development which, at
any time, is treated as a “subsidiary” of the Company under GAAP, other than an Unrestricted Subsidiary.”
““Replacement
Assets” means, on any date, property or assets (other than current assets) of a nature or type or that are used in a
Permitted Businessthe businesses of the Company or any of its Restricted
Subsidiaries (including any Capital Stock in a Person holding such property or assets, which is primarily engaged
in a Permitted Business and is or will upon the acquisition by the Company or any Restricted Subsidiary of such Capital
Stock become a Restricted Subsidiary).”
Section 1.2 Deletion of certain defined terms from Section 1.01 of the Indenture. The following defined terms are hereby deleted from Section 1.01 of the Indenture:
““Permitted
Businesses” means any business conducted by the Company and its Restricted Subsidiaries on the Original Issue Date and
other businesses reasonably related, ancillary or complementary thereto.”
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““PRC Restricted
Subsidiary” means a Restricted Subsidiary organized under the laws of the PRC.”
Section 1.3 Addition of certain defined terms to Section 1.01 of the Indenture. The following defined terms are hereby added to Section 1.01 of the Indenture:
““Effective Time” means the date when the Supplemental Indenture enabling the proposed amendments to this Indenture pursuant to the consent solicitation statement in relation to the Notes dated as of January 19, 2016 prepared by the Company and the Subsidiary Guarantors is executed by the Company, the Subsidiary Guarantors, the Trustee and the Shared Security Agent.”
““Exempted Subsidiary” means any Restricted Subsidiary established after the Effective Time organized in any jurisdiction other than the PRC that is prohibited by applicable law or regulation to provide a Subsidiary Guarantee or a JV Subsidiary Guarantee or create any Lien over its Capital Stock to secure any of the secured obligations subject to the Intercreditor Agreement; provided that (x) the Company shall have failed, upon using commercially reasonable efforts, to obtain any required governmental or regulatory approval or registration with respect to such Subsidiary Guarantee, JV Subsidiary Guarantee or Lien over its Capital Stock, to the extent that such approval or registration is available under any applicable law or regulation and (y) such Restricted Subsidiary shall cease to be an Exempted Subsidiary immediately upon such prohibition ceasing to be in force or apply to such Restricted Subsidiary or upon the Company having obtained such applicable approval or registration.”
““Qualified Exchange” means either (1) The New York Stock Exchange, the London Stock Exchange, The Stock Exchange of Hong Kong Limited, the Nasdaq Stock Market or Singapore Exchange Securities Trading Limited or (2) a national securities exchange (as such term is defined in Section 6 of the Exchange Act) or a designated offshore securities market (as such term is defined in Rule 902(b) under the Securities Act).”
““Qualified IPO” means an initial public offering, and a listing, of ordinary shares of a company on a Qualified Exchange; provided that in the case that such listing is on a national securities exchange (as such term is defined in Section 6 of the Exchange Act) or a designated offshore securities market (as such term is defined in Rule 902(b) under the Securities Act), such listing shall result in a public float of no less than the percentage required by the applicable listing rules.”
““Restructuring” means the restructuring and Qualified IPO of the common shares of a Subsidiary in the Restructuring Group.”
““Restructuring Group” means a Subsidiary of the Company through which the Company conducts (directly or indirectly) businesses other than property development business immediately prior to the completion of the Restructuring and its Subsidiaries.”
Section 1.4 Amendment to Section 4.03 of the Indenture. Section 4.03 of the Indenture is hereby amended and restated as follows:
“Section 4.03. Governmental
Approvals and Licenses; Compliance with Law. The Company shall, and shall cause each Restricted Subsidiary to, (a) obtain
and maintain in full force and effect all governmental approvals, authorizations, consents, permits, concessions and licenses
as are necessary to engage in the Permitted Businessesbusinesses
of the Company or any Restricted Subsidiary, (b) preserve and maintain good and valid title to its properties and assets
(including land-use rights) free and clear of any Liens other than Permitted Liens and (c) comply with all laws, regulations,
orders, judgments and decrees of any governmental body, except to the extent that failure so to obtain, maintain, preserve and
comply would not reasonably be expected to have a material adverse effect on (i) the business, results of operations or prospects
of the Company and its Restricted Subsidiaries, taken as a whole, or (ii) the ability of the Company, any Subsidiary Guarantor
or any JV Subsidiary Guarantor to perform its obligations under the Notes, the relevant Subsidiary Guarantee, the relevant JV
Subsidiary Guarantee or this Indenture.”
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Section 1.5 Amendments to Sections 4.05(a) and (b) of the Indenture. Sections 4.05(a) and (b) of the Indenture are hereby amended and restated as follows:
“Section 4.05 Limitation
on Indebtedness and Preferred Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, Incur any
Indebtedness (including Acquired Indebtedness), and the Company shall not permit any Restricted Subsidiary to issue Preferred
Stock, provided that the Company, and any Subsidiary Guarantor or any JV Subsidiary Guarantor may Incur
Indebtedness (including Acquired Indebtedness) and any Restricted Subsidiary that is a Non- Guarantor Subsidiary
may Incur Permitted Subsidiary Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and
application of the proceeds therefrom, (x) no Default has occurred and is continuing and (y) the Fixed Charge Coverage Ratio would
not be less than 3.02.75 to 1.0. Notwithstanding the
foregoing, the Company shall not permit any Restricted Subsidiary to Incur any Disqualified Stock (other than Disqualified Stock
of Restricted Subsidiaries held by the Company or a Subsidiary Guarantor, so long as it is so held).
(b) Notwithstanding the foregoing, the Company and, to the extent provided below, any Restricted Subsidiary may Incur each and all of the following (“Permitted Indebtedness”):
(i) Indebtedness under the Notes (excluding any Additional Notes and any Permitted Pari Passu Secured Indebtedness of the Company) and each Subsidiary Guarantee and JV Subsidiary Guarantee;
(ii) any Pari Passu Subsidiary Guarantees by any Subsidiary Guarantor or any JV Subsidiary Guarantor;
(iii) Indebtedness of the Company
or any Restricted Subsidiary outstanding on the Original Issue Date excluding Indebtedness permitted under clause (iv) below;
provided that such Indebtedness of Restricted Subsidiaries that are Non-Guarantor Subsidiaries shall be
included in the calculation of Permitted Subsidiary Indebtedness;
(iv) Indebtedness of the Company or any Restricted Subsidiary owed to the Company or any Restricted Subsidiary; provided that (i) any event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or any Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (d) and (ii) if the Company is the obligor on such Indebtedness, such Indebtedness must expressly be subordinated in right of payment to the Notes, and if a Subsidiary Guarantor or a JV Subsidiary Guarantor is the obligor on such Indebtedness and the Company is not the obligee, such Indebtedness must be expressly subordinated in right of payment to the Subsidiary Guarantee of such Subsidiary Guarantor or the JV Subsidiary Guarantee of such JV Subsidiary Guarantor, as the case may be;
(v) Indebtedness of the Company or any Restricted Subsidiary (“Permitted Refinancing Indebtedness”) issued in exchange for, or the net proceeds of which are used to refinance or refund, replace, exchange, renew, repay, defease, discharge or extend (collectively, “refinance” and “refinances” and “refinanced” shall have a correlative meaning), then outstanding Indebtedness Incurred under the immediately preceding paragraph (a) or clauses (i), (ii), (iii), (viii), (xvi), (xvii), (xviii) or (xix) of this paragraph (b) and any refinancings thereof in an amount not to exceed the amount so refinanced (plus premiums, accrued interest, fees and expenses); provided that (1) Indebtedness the proceeds of which are used to refinance the Notes or Indebtedness that is pari passu with, or subordinated in right of payment to, the Notes or a Subsidiary Guarantee or a JV Subsidiary Guarantee shall only be permitted under this clause (v) if (A) in case the Notes are refinanced in part or the Indebtedness to be refinanced is pari passu with the Notes or a Subsidiary Guarantee or a JV Subsidiary Guarantee, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made pari passu with, or subordinate in right of payment to, the remaining Notes or such Subsidiary Guarantee or such JV Subsidiary Guarantee, as the case may be, or (B) in case the Indebtedness to be refinanced is subordinated in right of payment to the Notes or a Subsidiary Guarantee or a JV Subsidiary Guarantee, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes or such Subsidiary Guarantee or such JV Subsidiary Guarantee, as the case may be, at least to the extent that the Indebtedness to be refinanced is subordinated to the Notes or such Subsidiary Guarantee or such JV Subsidiary Guarantee, (2) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced, (3) in no event may Indebtedness of the Company, any Subsidiary Guarantor or any JV Subsidiary Guarantor be refinanced pursuant to this clause by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor or a JV Subsidiary Guarantor, and (4) in no event may Indebtedness of the Company or any Subsidiary Guarantor be refinanced pursuant to this clause by means of any Indebtedness of any JV Subsidiary Guarantor;
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(vi) Indebtedness Incurred
by the Company or any Restricted Subsidiary pursuant to Hedging Obligations entered into in the ordinary course of business
designed solely to protectto reduce or manage the exposure
of the Company or any Restricted Subsidiary against fluctuations in commodity prices, interest rates or foreign currency
exchange rates;
(vii) Pre-Registration Mortgage Guarantees by the Company or any Restricted Subsidiary;
(viii) Indebtedness Incurred
by the Company or any Restricted Subsidiary for the purpose of financing (x) all or any part of the purchase price of assets,
real or personal property (including the lease purchase price of land use rights) or equipment to be used in the ordinary course
of business by the Company or a Restricted Subsidiary in the Permitted Business, including any such purchase
through the acquisition of Capital Stock of any Person that owns such real or personal property or equipment which will, upon
acquisition, become a Restricted Subsidiary, or (y) all or any part of the purchase price or the cost of development, construction
or improvement of assets, real or personal property (including the lease purchase price of land use rights) or equipment to be
used in the ordinary course of business by the Company or such Restricted Subsidiary in the Permitted Business;
provided that, in the case of clauses (x) and (y), (A) the
aggregate principal amount of such Indebtedness shall not exceed such purchase price or cost, (B) such Indebtedness shall
be Incurred no later than 180 days after the acquisition of such asset, property or equipment or completion of such development,
construction or improvement and (C) on the date of the Incurrence of such Indebtedness and after giving effect thereto, the
sum of (1) the aggregate principal amount outstanding of all such Indebtedness permitted by this clause (viii) (together
with refinancings thereof, but excluding any Contractor Guarantee Incurred under this clause (viii) to the extent the amount
of such Contractor Guarantee is otherwise reflected in such aggregate principal amount) plus (2) the aggregate amount outstanding
of all Indebtedness permitted and then outstanding under clauses (xvi), (xvii), (xviii) and,
(xx) and (xxii) below (together with any refinancings thereof)
below does not exceed an amount equal to 40.050.0%
of Total Assets;
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(ix) Indebtedness Incurred by the Company or any Restricted Subsidiary constituting reimbursement obligations with respect to workers’ compensation claims or self- insurance obligations or bid, performance or surety bonds (in each case other than for an obligation for borrowed money);
(x) Indebtedness Incurred by the Company or any Restricted Subsidiary constituting reimbursement obligations with respect to letters of credit or trade guarantees issued in the ordinary course of business to the extent that such letters of credit or trade guarantees are not drawn upon or, if drawn upon, to the extent such drawing is reimbursed no later than 30 days following receipt by the Company or such Restricted Subsidiary of a demand for reimbursement;
(xi) Indebtedness arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligation of the Company or any Restricted Subsidiary pursuant to such agreements, in any case, Incurred in connection with the disposition of any business, assets or Restricted Subsidiary, other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of financing such acquisition; provided that the maximum aggregate liability in respect of all such Indebtedness shall at no time exceed the gross proceeds actually received by the Company or any Restricted Subsidiary from the disposition of such business, assets or Restricted Subsidiary;
(xii) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business provided, that such Indebtedness is extinguished within five Business Days of Incurrence;
(xiii) (A) Guarantees by the Company or any Subsidiary Guarantor of Indebtedness of the Company or any Restricted Subsidiary that was permitted to be Incurred by another provision of this covenant (B) Guarantees by any Restricted Subsidiary of Indebtedness of another Restricted Subsidiary that was permitted to be Incurred by another provision of this covenant, or (C) Guarantees by any JV Subsidiary Guarantor of Indebtedness of any other JV Subsidiary Guarantor that is a direct or indirect Subsidiary or parent of such JV Subsidiary Guarantor, which Indebtedness was permitted to be Incurred by another provision of this covenant;
(xiv) Indebtedness of the Company or any Restricted Subsidiary maturing within one year; provided that the aggregate principal amount of Indebtedness permitted by this clause (xiv) at any time outstanding does not exceed US$30.0 million (or the Dollar Equivalent thereof);
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(xv) Indebtedness of the Company or any Restricted Subsidiary constituting an obligation to pay the deferred purchase price of Capital Stock of a Restricted Subsidiary pursuant to a Staged Acquisition Agreement, to the extent that such deferred purchase price is paid within 12 months after the date the Company or such Restricted Subsidiary enters into such Staged Acquisition Agreement;
(xvi) Indebtedness Incurred
or Preferred Stock issued by the Company or any Restricted Subsidiary arising from any Investment made by a Trust Company Investor
in a PRC Project Company; provided that, on the date of Incurrence
of all such Indebtedness or issuance of such Preferred Stock and after giving effect thereto, the sum of (1) the aggregate amount
outstanding of all Indebtedness and Preferred Stock permitted under this clause (xvi) plus (2) the aggregate principal amount
outstanding of all Indebtedness permitted under clause (viii) above and clauses (xvii), (xviii) and,
(xx) and (xxii) below (together with refinancings thereof,
but excluding any Contractor Guarantee Incurred under clause (viii) above to the extent the amount of such Contractor Guarantee
is otherwise reflected in such aggregate principal amount) does not exceed an amount equal to 40.050.0%
of Total Assets;
(xvii) Bank Deposit Secured
Indebtedness Incurred by the Company or any Restricted Subsidiary; provided that,
on the date of the Incurrence of such Indebtedness and after giving effect thereto, the sum of (1) the aggregate
principal amount outstanding of all such Indebtedness Incurred pursuant to this clause (xvii) (together with any refinancings
thereof), plus (2) the aggregate principal amount outstanding of all such Indebtedness Incurred pursuant to clauses (viii)
and (xvi) above and clauses (xviii) and, (xx) and
(xxii) below (together with any refinancings thereof, but excluding any Contractor Guarantee Incurred under clause (viii)
above to the extent the amount of such Contractor Guarantee is otherwise reflected in such aggregate principal amount), does not
exceed an amount equal to 40.050.0% of Total Assets;
(xviii) Indebtedness Incurred
by any Restricted Subsidiary which is secured by Investment Properties; provided that,
on the date of the Incurrence of all such Indebtedness and after giving effect thereto, the sum of (1) the aggregate
principal amount outstanding of all such Indebtedness Incurred pursuant to this clause (xviii) (together with any refinancings
thereof), plus (2) the aggregate principal amount outstanding of all such Indebtedness Incurred pursuant to clauses (viii),
(xvi) and (xvii) above and clauses (xx) and
(xxii) below (together with any refinancings thereof, but excluding any Contractor Guarantee Incurred under clause (viii)
above to the extent the amount of such Contractor Guarantee is otherwise reflected in such aggregate principal amount), does not
exceed an amount equal to 40.050.0% of Total Assets;
(xix) Indebtedness of the Company or any Restricted Subsidiary in an aggregate principal amount outstanding at any time (together with refinancings thereof) not to exceed US$15.0 million (or the Dollar Equivalent thereof);
(xx) Indebtedness Incurred by the
Company or any Restricted Subsidiary constituting a Guarantee of Indebtedness of any Person (other than the Company or a Restricted
Subsidiary) by the Company or such Restricted Subsidiary; provided that,
on the date of the Incurrence of all such Indebtedness and after giving effect thereto, (1) the aggregate principal
amount outstanding of all such Indebtedness Incurred under this clause (xx) (together with any refinancing thereof), plus (2)
the aggregate principal amount outstanding of all Indebtedness Incurred pursuant to clauses (viii), (xvi), (xvii) and (xviii)
above and clause (xxii) below (together with any refinancings thereof,
but excluding any Contractor Guarantee Incurred under clause (viii) to the extent the amount of such Contractor Guarantee is otherwise
reflected in such aggregate principal amount), does not exceed an amount equal to 40.050.0%
of Total Assets; and
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(xxi) Indebtedness Incurred
by the Company or a Restricted Subsidiary Constituting a Subordinated Shareholder Loan.;
and
(xxii) Acquired Indebtedness of any Restricted Subsidiary Incurred and outstanding on the date on which such Person becomes a Restricted Subsidiary (other than Indebtedness Incurred (A) to provide all or any portion of the funds utilized to consummate the transaction or series of transactions pursuant to which a Person becomes a Restricted Subsidiary or (B) otherwise in contemplation of a Person becoming a Restricted Subsidiary or any such acquisition); provided that, on the date of the Incurrence of all such Indebtedness and after giving effect thereto, (1) the aggregate principal amount outstanding of all such Indebtedness Incurred under this clause (xxii) (together with any refinancings thereof), plus (2) the aggregate principal amount outstanding of all Indebtedness Incurred pursuant to clauses (viii), (xvi), (xvii), (xviii) and (xx) above (together with any refinancings thereof, but excluding any Contractor Guarantee Incurred under clause (viii) to the extent the amount of such Contractor Guarantee is otherwise reflected in such aggregate principal amount), does not exceed an amount equal to 50.0% of Total Assets.”
Section 1.6 Amendments to Sections 4.06(c) and (d) of the Indenture. Sections 4.06(c) and (d) of the Indenture are hereby amended and restated as follows:
“(c) The amount of any Restricted Payments (other than cash) will be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or the Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The value of any assets or securities that are required to be valued by Section 4.06 will be the Fair Market Value. The Board of Directors’ determination of the Fair Market Value of a Restricted Payment or any such assets or securities must be based upon an opinion or appraisal issued by an appraisal or investment banking firm of recognized international standing if the Fair Market Value exceeds US$10.0 million (or the Dollar Equivalent thereof), except with respect to any Investment deemed to have been made by the Company or any Restricted Subsidiary in the Restructuring Group in connection with the Restructuring upon designation of such Subsidiaries as Unrestricted Subsidiaries (to the extent such Investment does not constitute a Permitted Investment pursuant to clause (22) of the definition thereof).
(d) Not later than the date
of making any Restricted Payment in excess of US$10.0 million (or the Dollar Equivalent thereof) (other than any Restricted Payments
set forth in clauses (v) through (x) of Section 4.06(a) above and any Investment
deemed to have been made by the Company or any Restricted Subsidiary in the Restructuring Group in connection with the Restructuring
upon designation of such Subsidiaries as Unrestricted Subsidiaries (to the extent such Investment does not constitute a Permitted
Investment pursuant to clause (22) of the definition thereof)), the Company will deliver to the Trustee an Officers’
Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required
by Section 4.06 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.”
Section 1.7 Amendment to Section 4.14(b) of the Indenture. Section 4.14(b) of the Indenture is amended as follows:
“(b) The limitation set forth in Section 4.14(a) above does not limit, and shall not apply to:
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(i) the payment of reasonable and customary regular fees to directors of the Company who are not employees of the Company;
(ii) transactions between or among the Company and any of its Wholly Owned Restricted Subsidiaries or between or among Wholly Owned Restricted Subsidiaries;
(iii) any Restricted Payment of the type described in clause (i) or (ii) of
Section 4.06(a) if permitted by that Section 4.06(a);
(iv) any sale of Capital Stock (other than Disqualified Stock) of the Company;
(v) any issuance of securities,
or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements and
other compensation arrangements, options to purchase Capital Stock, restricted stock plans, long-term incentive plans, share award
schemes, stock appreciation rights plans, participation plans or similar employee plans and/or indemnity provided on behalf of
employees, officers and directors of the Company or any Restricted Subsidiary, so long as such plan or scheme is in compliance
with the listing rules of the New York Stock Exchange; and
(vi) any employment, consulting,
service or termination agreement, or reasonable and customary indemnification arrangements, entered into by the Company or any
of its Restricted Subsidiaries with directors, officers, employees and consultants in the ordinary course of business and the
payment of compensation pursuant thereto.;
(vii) any transaction between (A) the Company or any Restricted Subsidiary and (B) any entity in the Restructuring Group entered into in connection with the Restructuring, including, without limitation, transactions entered into for purposes of any reorganization in connection with the Restructuring and the entry into, and the performance thereof, of any underwriting agreement or other transaction documents in connection with the Restructuring; and
(viii) any transaction between (A) the Company or any Restricted Subsidiary and (B) any entity in the Restructuring Group entered into in the ordinary course of business, on fair and reasonable terms and disclosed in the offering document issued in connection with the Restructuring, or any amendment, modification, extension or replacement thereof, so long as such amendment, modification or replacement is not more disadvantageous to the Company and its Restricted Subsidiaries than the original transaction described in the offering document issued in connection with the Restructuring and in compliance with the rules of the relevant Qualified Exchange.”
Section 1.8 Amendment to Section 4.15 of the Indenture. Section 4.15 of the Indenture is amended and restated as follows:
“Section
4.15. Limitation on the Company’s Business Activities. The Company shall not, and shall
not permit any Restricted Subsidiary to, directly or indirectly, engage in any business other than a Permitted Business; provided,
however, that the Company or any Restricted Subsidiary may own Capital Stock of an Unrestricted Subsidiary or joint venture
or other entity that is engaged in a business other than Permitted Businesses as long as any Investment therein was not prohibited
when made under Section 4.06.[This Section is Intentionally Left
Blank]
Section 1.9 Amendment to Section 4.17(a) of the Indenture. Section 4.17(a) of the Indenture is hereby amended and restated as follows:
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“Section 4.17. Designation of Restricted and Unrestricted Subsidiaries. (a) Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) neither the Company nor any Restricted Subsidiary provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness of, or any Lien on any property of, the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.05 or such Lien would violate Section 4.07;
(iv) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated to be Unrestricted Subsidiaries in accordance with Section 4.17(a); and
(v) the Investment deemed to have been made thereby in such newly-designated Unrestricted Subsidiary and each other newly-designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.06 (other than any Investment deemed to have been made by the Company or any Restricted Subsidiary in the Restructuring Group upon the designation of the Subsidiaries in the Restructuring Group as Unrestricted Subsidiaries in connection with the Restructuring, provided that (A) the Board of Directors has determined in good faith that the designation of such Subsidiaries as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, such Subsidiaries remain Subsidiaries of the Company, and (C) at the time of such designation, such Subsidiaries remain primarily engaged in the businesses other than property development business).”
Section 1.10 Amendment to Section 4.23(a) of the Indenture. Section 4.23(a) of the Indenture is amended and restated as follows:
“Section 4.23. Suspension of Certain Covenants. (a) If, on any date following the
date of this Indenture, the Notes have a rating of Investment Grade from both of the Rating Agencies and no Default has occurred and is continuing (a “Suspension Event”), then, beginning on that day and continuing until such time, if any, at which the Notes cease to have a rating of Investment Grade from either of the Rating Agencies, the following provisions of this Indenture will be suspended:
(1) Section 4.05;
(2) Section 4.06;
(3) Section 4.08;
(4) Section 4.09;
(5) Section 4.10;
(6) Section 4.11; and
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(7) Section 4.13; and
(8) Section 4.15.
Section 1.11 Amendments to Sections 10.02(a) and 10.02(b) of the Indenture. Sections 10.02(a) and 10.02(b) of the Indenture are amended and restated as follows:
“Section 10.02. Future Subsidiary Guarantor Pledgors. (a) None of the Capital Stock of the Non-Guarantor Subsidiaries will be pledged on the Original Issue Date or at any time in the future. In addition, none of the Capital Stock of any future Restricted Subsidiary that may be organized under the laws of the PRC (and, after the Effective Time, the Capital Stock of any Exempted Subsidiaries) will be pledged at any time in the future. If any JV Subsidiary Guarantor is established, the Capital Stock of such JV Subsidiary Guarantor owned by the Company or any Subsidiary Guarantor will be pledged to secure the obligations of the Company under the Notes and the Indenture, and of such Subsidiary Guarantor under its Subsidiary Guarantee, as the case may be, in the manner described above. However, none of the JV Subsidiary Guarantors will provide a Security Document pledging the Capital Stock of its direct or indirect Subsidiaries as security in favor of the Shared Security Agent for itself and for the benefit of the Trustee and the Holders.
(b) The Company shall, for the benefit of the Holders of the Notes, pledge, and cause each Subsidiary Guarantor (other than a JV Subsidiary Guarantor, if any) to pledge, the Capital Stock directly owned by the Company or such Subsidiary Guarantor of any Person that becomes a Restricted Subsidiary or of any Non-Guarantor Subsidiary that becomes a Subsidiary Guarantor, or additional shares of Capital Stock acquired or otherwise received by the Company or such Subsidiary Guarantor of any existing Restricted Subsidiary (in each case, other than Persons organized under the laws of the PRC or Other Non-Guarantor Subsidiaries) after the Original Issue Date, promptly upon such Person becoming a Restricted Subsidiary, to secure the obligations of the Company under the Notes and the Indenture, and of such Subsidiary Guarantor under its Subsidiary Guarantee. After the Effective Time, the Company shall, for the benefit of the Holders of the Notes, pledge, and cause each Subsidiary Guarantor (other than a JV Subsidiary Guarantor, if any) to pledge, the Capital Stock directly owned by the Company or such Subsidiary Guarantor of any Person that becomes a Restricted Subsidiary or of any Non-Guarantor Subsidiary that becomes a Subsidiary Guarantor, or additional shares of Capital Stock acquired or otherwise received by the Company or such Subsidiary Guarantor of any existing Restricted Subsidiary (in each case, other than Persons organized under the laws of the PRC, Other Non-Guarantor Subsidiaries or Exempted Subsidiaries), as soon as practicable after such Person becomes a Restricted Subsidiary or ceases to be an Exempted Subsidiary, to secure the obligations of the Company under the Notes and the Indenture, and of such Subsidiary Guarantor under its Subsidiary Guarantee.”
Section 1.12 Amendments to Section 11.09(a) of the Indenture. Section 11.09(a) of the Indenture is amended and restated as follows:
“Section 11.09.
Further Subsidiary Guarantors. (a) The Company shall cause each of its future Restricted Subsidiaries (other
than Persons organized under the laws of the PRC) after the Original Issue Date
(other than any Person organized under the laws of the PRC or, if on or after the Effective Time, any Exempted Subsidiary),
promptly upon becoming a Restricted Subsidiary or ceasing to be an Exempted Subsidiary,
to execute and deliver to the Trustee a supplemental indenture to this Indenture pursuant to which such Restricted Subsidiary
will guarantee the payment of the Notes as either a Subsidiary Guarantor or JV Subsidiary Guarantor. Notwithstanding the foregoing,
the Company may elect to have any such future Restricted Subsidiary (and
its Restricted Subsidiaries) organized outside the PRC not provide a Subsidiary Guarantee or JV Subsidiary Guarantee
at the time such entityPerson becomes a Restricted Subsidiary
or ceases to be an Exempted Subsidiary, provided that, after giving
effect to the Consolidated Assets of such Restricted Subsidiary, the Consolidated Assets of all Restricted Subsidiaries organized
outside the PRC (other than Exempted Subsidiaries) that are not Subsidiary
Guarantors or JV Subsidiary Guarantors do not account for more than 20.0% of Total Assets as of the date such SubsidiaryPerson
becomes a Restricted Subsidiary or ceases to be an Exempted Subsidiary.
Each such Restricted Subsidiary and its Restricted Subsidiaries that do not provide a Subsidiary Guarantee or a JV Subsidiary
Guarantee will also be referred to as Other Non-Guarantor Subsidiaries. If, at any time, the Consolidated Assets of all Restricted
Subsidiaries organized outside the PRC (other than Exempted Subsidiaries)
that are not Subsidiary Guarantors or JV Subsidiary Guarantors exceed 20.0% of the Total Assets, the Company
must promptly cause one or more Other Non-Guarantor Subsidiaries to execute and deliver to the Trustee a supplemental indenture
to the Indenture pursuant to which such Other Non-Guarantor Subsidiaries will guarantee the payment of the Notes and
will become Subsidiary Guarantors such that the 20.0% limitation is complied with and will become Subsidiary
Guarantors.”
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ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.1 This Indenture Supplement shall be governed by and construed in accordance with the laws of the State of New York.
Section 2.2 This Indenture Supplement may be signed in various counterparts which together will constitute one and the same instrument.
Section 2.3 This Indenture Supplement is an amendment supplemental to the Indenture and the Indenture and this Indenture Supplement will henceforth be read together. Except as amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Indenture Supplement shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered under the Indenture shall be bound by the Indenture as amended hereby.
Section 2.4 The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Indenture Supplement or for or in respect of the recitals contained herein all of which are made solely by the Company and the Subsidiary Guarantors.
Section 2.5 Notwithstanding anything contained herein, nothing in this Indenture Supplement shall relieve the Company, the Subsidiary Guarantors, the Trustee and the Shared Security Agent of any of their obligations under the Indenture, as amended and supplemented by this Indenture Supplement, and the Notes.
Section 2.6 In case any provision in this Indenture Supplement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 2.7 The provisions of Articles I of this Indenture Supplement shall be effective upon execution, and shall not become operative until the time the Company pays the Holders who delivered consents to the amendment set forth in this Indenture Supplement, pursuant to and in accordance with the terms and conditions set forth in the Consent Solicitation Statement issued by the Company, dated as of January 19, 2016.
[The remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture Supplement to be duly executed as of the date first above written.
| Xinyuan Real Estate Co., Ltd. By: /s/ Yong Zhang | |
| Name: Yong Zhang | |
| Title: Chairman | |
Xinyuan International Property Investment Co.,
Ltd. | |
| Name: Yong Zhang | |
| Title: Chairman | |
| Xinyuan Real Estate, Ltd. as Subsidiary Guarantor By: /s/ Yong Zhang | |
| Name: Yong Zhang | |
| Title: Chairman | |
| Xinyuan International (HK) Property Investment Co., Limited | |
| as Subsidiary Guarantor By: /s/ Yong Zhang | |
| Name: Yong Zhang | |
| Title: Chairman | |
| Victory Good Development Limited as Subsidiary Guarantor By: /s/ Yong Zhang | |
| Name: Yong Zhang | |
| Title: Chairman | |
[Signature Page – Indenture Supplement]
| South Glory International Limited | |
| as Subsidiary Guarantor By: /s/ Yong Zhang | |
| Name: Yong Zhang | |
| Title: Chairman | |
Elite Quest Holdings Limited
| |
| Name: Yong Zhang | |
| Title: Chairman | |
[Signature Page – Indenture Supplement]
| Citicorp International Limited, as Trustee | |
| By: /s/ Terence Yeung | |
| Name: Terence Yeung | |
| Title: Vice President |
[Signature Page – Indenture Supplement]
| Citicorp International Limited, as Shared Security Agent | |
| By: /s/ Terence Yeung | |
| Name: Terence Yeung | |
| Title: Vice President |
[Signature Page – Indenture Supplement]
SCHEDULE I
LIST OF SUBSIDIARY GUARANTORS
| Name of Company | |
| 1. | Xinyuan International Property Investment Co., Ltd. |
| 2. | Xinyuan Real Estate, Ltd. |
| 3. | Xinyuan International (HK) Property Investment Co., Limited |
| 4. | Victory Good Development Limited |
| 5. | South Glory International Limited |
| 6. | Elite Quest Holdings Limited |
Schedule I – 1
Exhibit 99.3
EXECUTION VERSION
INDENTURE SUPPLEMENT NO. 2
dated as of February 3, 2016
among
Citicorp
International Limited
as Trustee,
Citicorp International Limited
as Shared Security Agent,
XINYUAN REAL ESTATE CO., LTD.
and
The entities listed in Schedules I hereto
as the Subsidiary Guarantors
13% Senior Notes Due 2019
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INDENTURE SUPPLEMENT NO. 2, dated as of February 3, 2016 (this “Indenture Supplement”), pursuant to the Indenture dated as of December 6, 2013 (as amended, restated or supplemented from time to time, the “Indenture”), by and among Xinyuan Real Estate Co., Ltd., a company incorporated with limited liability under the laws of the Cayman Islands (the “Company”), Citicorp International Limited, as trustee (the “Trustee”), Citicorp International Limited, as shared security agent (the “Shared Security Agent”), and the entities listed in Schedule I hereto collectively (the “Subsidiary Guarantors”). Unless otherwise defined herein, capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
RECITALS
WHEREAS, the Company, the Subsidiary Guarantors party thereto and the Trustee entered into the Indenture, dated as of December 6, 2013, relating to the Company’s 13% Senior Notes Due 2019 (the “Notes”).
WHEREAS, Section 9.02 of the Indenture provides that the Indenture may be amended with the consent of the Holders of not less than a majority in aggregate principal amount of the outstanding Notes; provided that certain amendments may not be affected without the consent of each Holder of the Notes affected;
WHEREAS, the Company desires and has requested the Trustee to join with it in entering into this Indenture Supplement for the purpose of amending the Indenture in certain respects as permitted by Section 9.02 of the Indenture;
WHEREAS, the Company has received the consent of the Holders of not less than a majority in aggregate principal amount of the outstanding Notes and has satisfied all other conditions precedent, if any, provided under the Indenture to enable the Company and the Trustee to enter into this Indenture Supplement, all as certified by an Officers’ Certificate, delivered to the Trustee simultaneously with the execution and delivery of this Indenture Supplement as contemplated by Section 9.04 of the Indenture; and
WHEREAS, the Company has delivered to the Trustee simultaneously with the execution and delivery of this Indenture Supplement an Opinion of Counsel relating to this Indenture Supplement as contemplated by Section 9.04 of the Indenture;
NOW, THEREFORE, in
consideration of the foregoing and the mutual promises and covenants contained herein and for other good and valuable consideration,
each party hereby agrees, for the benefit of the others and for the equal and ratable benefit of the Holders of the Notes, as follows
(amended texts of the Indenture are shown in quotation marks below, with additions shown in double
underscore and deletions shown in strikethrough):
ARTICLE I
AMENDMENTS TO THE INDENTURE
Section 1.1 Amendments to certain defined terms in Section 1.01 of the Indenture. The following defined terms contained in Section 1.01 of the Indenture are hereby amended and restated as follows:
““Commodity Agreement”
means any spot, forward or option commodity price protection agreements or other similar agreement or arrangement designed to protect
againstreduce or manage exposure to fluctuations in commodity
prices.”
““Contractor Guarantees”
means any Guarantee by the Company or any Restricted Subsidiary of Indebtedness of any contractor, builder or other similar Person
engaged by the Company or such Restricted Subsidiary in connection with the development, construction or improvement of real or
personal property or equipment to be used in a Permitted Business by the Company or any Restricted Subsidiary
in the ordinary course of business, which Indebtedness was Incurred by such contractor, builder or other similar Person to finance
the cost of such development, construction or improvement.”
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““Currency Agreement”
means any foreign exchange forward contract, currency swap agreement or other similar agreement or arrangement designed to protect
againstreduce or manage exposure to fluctuations in foreign exchange
rates.”
““Entrusted Loans”
means borrowings by a PRCNon-Guarantor Restricted
Subsidiary from a bank that are secured by a pledge of deposits made byfrom
the Company or another PRC Restricted Subsidiary (whether
directly or through or facilitated by a bank or other financial institution)to the lending bank as security
for such borrowings, provided that such borrowings are not reflected on the consolidated balance sheet of the Company.”
““Indebtedness” means, with respect to any Person at any date of determination (without duplication):
(1) all indebtedness of such Person for borrowed money;
(2) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(3) all obligations of such Person in respect of letters of credit, bankers’ acceptances or other similar instruments;
(4) all obligations of such Person to pay the deferred and unpaid purchase price of property or services, except Trade Payables;
(5) all Capitalized Lease Obligations and Attributable Indebtedness;
(6) all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided that the amount of such Indebtedness shall be the lesser of (a) the Fair Market Value of such asset at such date of determination and (b) the amount of such Indebtedness;
(7) all Indebtedness of other Persons Guaranteed by such Person to the extent such Indebtedness is Guaranteed by such Person;
(8) to the extent not otherwise included in this definition, Hedging Obligations; and
(9) all Disqualified Stock issued by such Person valued at the greater of its voluntary or involuntary liquidation preference and its maximum fixed repurchase price plus accrued dividends.
Notwithstanding the foregoing,
Indebtedness shall not include any (1) capital commitments, pre-sale receipts in advance from customers, deferred payment obligations
or similar obligations, Incurred in the ordinary course of business in connection with the acquisition, development, construction
or improvement of real or personal property (including land use rights) to be used in a Permitted Business or
(2) Entrusted Loans; provided that such Indebtedness is not reflected on the balance sheet of the Company or any Restricted
Subsidiary (contingent obligations and commitments referred to in a footnote to financial statements and not otherwise reflected
on the balance sheet will not be deemed to be reflected on such balance sheet). The amount of Indebtedness of any Person at any
date shall be the outstanding balance at such date of all unconditional obligations as described above and, with respect to contingent
obligations, the maximum liability upon the occurrence of the contingency giving rise to the obligation; provided that:
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(A) the amount outstanding at any time of any Indebtedness issued with original issue discount is the face amount of such Indebtedness less the remaining unamortized portion of the original issue discount of such Indebtedness at such time as determined in conformity with GAAP,
(B) money borrowed and set aside at the time of the Incurrence of any Indebtedness in order to prefund the payment of the interest on such Indebtedness shall not be deemed to be “Indebtedness” so long as such money is held to secure the payment of such interest, and
(C) the amount of Indebtedness with respect to any Hedging Obligation shall be (i) zero if Incurred pursuant to clause (vi) of Section 4.05(b) or (ii) equal to the net amount payable by such Person if the Commodity Agreement, Currency Agreement or Interest Rate Agreement giving rise to such Hedging Obligation were terminated at that time due to default by such Person if not Incurred pursuant to clause (vi) of Section 4.05(b).”
““Interest Rate
Agreement” means any interest rate protection agreement, interest rate future agreement, interest rate option agreement,
interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement, option
or future contract or other similar agreement or arrangement designed to protect againstreduce
or manage exposure to fluctuations in interest rates.”
““Minority Joint
Venture” means any corporation, association or other business entity that is accounted for by the equity method of accounting
in accordance with GAAP by the Company or a Restricted Subsidiary and primarily engaged in the Permitted Businesses,
and such Minority Joint Venture’s Subsidiaries.”
““Permitted Investment” means:
(1) any Investment in the Company
or a Restricted Subsidiary that is primarily engaged in a Permitted Business or a Person which will, upon the
making of such Investment, become a Restricted Subsidiary that is primarily engaged in a Permitted Business or
be merged or consolidated with or into or transfer or convey all or substantially all its assets to, the Company or a Restricted
Subsidiary that is primarily engaged in a Permitted Business;”
(2) Temporary Cash Investments;
(3) payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses in accordance with GAAP;
(4) stock, obligations or securities received in satisfaction of judgments;
(5) an Investment in an Unrestricted Subsidiary consisting solely of an Investment in another Unrestricted Subsidiary;
(6) any
Investment pursuant to a Hedging Obligation designed solely to protectto
reduce or manage the exposure of the Company or any Restricted Subsidiary againstto
fluctuations in commodity prices, interest rates or foreign currency exchange rates and not for speculation;”
(7) receivables owing to the Company or any Restricted Subsidiary, if created or
acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;
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(8) Investments made by the Company or any Restricted Subsidiary consisting of consideration received in connection with an Asset Sale made in compliance with Section 4.13;
(9) pledges or deposits (i) with respect to leases or utilities provided to third parties in the ordinary course of business or (ii) otherwise described in the definition of “Permitted Liens” or made in connection with Liens permitted under Section 4.07;
(10) any Investment pursuant to Pre-Registration Mortgage Guarantees or Contractor Guarantees by the Company or any Restricted Subsidiary otherwise permitted to be Incurred under this Indenture;
(11) Investments in securities of trade creditors, trade debtors or customers received pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such trade creditor, trade debtor or customer;
(12) advances to contractors and suppliers for the acquisition of assets or consumables or services in the ordinary course of business that are recorded as deposits or prepaid expenses on the Company’s consolidated balance sheet;
(13) deposits of pre-sale proceeds made in order to secure the completion and delivery of pre-sold properties and issuance of the related land use title in the ordinary course of business;
(14) deposits made in order to comply with statutory or regulatory obligations to
maintain deposits for workers compensation claims and other purposes specified by statute or regulation from time to time in the ordinary course of business;
(15) deposits made in order to secure the performance of the Company or any
Restricted Subsidiary and prepayments made in connection with the acquisition of real property or land use rights by the Company or any Restricted Subsidiary, in each case in the ordinary course of business;
(16) advances in the ordinary course of business to government authorities or
government-affiliated entities in the PRC for the purpose of the development and preparation by such government authority or government affiliated entity of primary land for auction purposes which advances are recorded as deposits or prepaid expenses on the Company’s consolidated balance sheet to the extent each such advance is on normal commercial terms including being subject to repayment from the relevant government authority;
(17) an acquisition of assets, Capital Stock or other securities by the Company or a Subsidiary for consideration to the extent such consideration consists solely of Common Stock of the Company;
(18) repurchases of the Notes;
(19) Guarantees permitted under Section 4.05(b)(xx);
(20) obligations (but not
payments thereon) with respect to homeowners association obligations, community facility district bonds, metro district bonds,
mello-roos bonds and subdivision improvement bonds and similar bonding requirements arising in the ordinary course of business
of a homebuilder; and
5
(21) any Investment (including any deemed Investment upon the redesignation of a Restricted Subsidiary as an Unrestricted Subsidiary or upon the sale of Capital Stock of a Restricted Subsidiary) by the Company or any Restricted Subsidiary in any Person (other than a Restricted Subsidiary), provided that:
| (i) | the aggregate of all Investments made under this clause (21) since the Original Issue Date shall not exceed in aggregate an amount equal to 20% of Total Assets. Such aggregate amount of Investments shall be calculated after deducting an amount equal to the net reduction in all Investments made under this clause (21) since the Original Issue Date resulting from: |
| (A) | payments of interest on Indebtedness, dividends or repayments of loans or advances made under this clause, in each case to the Company or any Restricted Subsidiary (except, in each case, to the extent any such payment or proceeds are included in the calculation of Consolidated Net Income), |
| (B) | the unconditional release of a Guarantee provided by the Company or a Restricted Subsidiary after the Original Issue Date under this clause (21) of an obligation of any such Person, or |
| (C) | to the extent that an Investment made after the Original Issue Date under this clause (21) is sold or otherwise liquidated or repaid for cash, the lesser of (x) cash return of capital with respect to such Investment (less the cost of disposition, if any) and (y) the initial amount of such Investment, not to exceed, in each case, the amount of Investments made by the Company or a Restricted Subsidiary after the Original Issue Date in any such Person pursuant to this clause (21); |
| (ii) |
| (iii) |
| (iv) | no Default has occurred and is continuing or would occur as a result of such Investment; and |
| (v) | in the case of any Investment by the Company or any Restricted Subsidiary in a Person of which less than 50% of the Voting Power of the outstanding Voting Stock is owned, directly or indirectly, by the Company or its Restricted Subsidiaries, at the time of such Investment, the Company could Incur at least US$1.00 of Indebtedness under the proviso in Section 4.05(a); provided however that this paragraph (v) shall not apply if such Investment would otherwise have been permitted under this clause (21) and such Investment, together with the aggregate amount of all other Investments made in reliance on this proviso since the Original Issue Date, shall not exceed in aggregate an amount equal to 5% of Total Assets (such aggregate amount of Investments shall be calculated after deducting an amount equal to the net reduction in all Investments made in reliance on this proviso since the Original Issue Date resulting from the events set forth in paragraphs (i)(A) through (i)(C) above, where references in such paragraphs to “under this clause (21)” shall be substituted with “in reliance on the proviso in paragraph (v)”). |
6
For the avoidance of doubt, the
value of each Investment made pursuant to this clause (21) shall be valued at the time such Investment is made.;
and
(22) any Investment deemed to have been made by the Company or any Restricted Subsidiary in the Restructuring Group in connection with the Restructuring upon designation of such Subsidiaries as Unrestricted Subsidiaries, provided that (A) (i) the Board of Directors has determined in good faith that the designation of such Subsidiaries as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (ii) at the time of such designation, such Subsidiaries remain Subsidiaries of the Company, and (iii) at the time of such designation, such Subsidiaries remain primarily engaged in the businesses other than property development business; and (B) the aggregate of all Investments made under this clause (22) since the Effective Time shall not exceed an amount equal to 10% of Total Assets (for the avoidance of doubt, any portion of such Investments exceeding 10% of Total Assets shall not constitute a Permitted Investment pursuant to this clause (22) but may be made, characterized and accounted for in accordance with the other provisions of this Indenture); and provided further that, at the time when (x) the Company ceases to hold, directly or indirectly, at least 30% of the Voting Stock of any entity so designated as an Unrestricted Subsidiary or (y) any Person or group of Persons other than the Company and its Subsidiaries acquires a higher percentage of the Voting Stock of such entity than the percentage held directly or indirectly by the Company, the Company will be deemed to make an Investment in such entity equal to the Fair Market Value of any Investment that the Company retains, directly or indirectly, in such entity immediately following such event.”
““Permitted Liens” means:
(1) Liens for taxes, assessments, governmental charges or claims that are being contested in good faith by appropriate legal or administrative proceedings promptly instituted and diligently conducted and for which a reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made;
(2) statutory and common law Liens of landlords and carriers, warehousemen, mechanics, suppliers, repairmen or other similar Liens arising in the ordinary course of business and with respect to amounts not yet delinquent or being contested in good faith by appropriate legal or administrative proceedings promptly instituted and diligently conducted and for which a reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made;
(3) Liens incurred or deposits made to secure the performance of tenders, bids, leases, statutory or regulatory obligations, bankers’ acceptances, surety and appeal bonds, government contracts, performance and return-of-money bonds and other obligations of a similar nature incurred in the ordinary course of business (exclusive of obligations for the payment of borrowed money);
7
(4) leases or subleases granted to others that do not materially interfere with the ordinary course of business of the Company and its Restricted Subsidiaries, taken as a whole;
(5) Liens encumbering property or assets under construction arising from progress or partial payments by a customer of the Company or its Restricted Subsidiaries relating to such property or assets;
(6) Liens on property of, or on shares of Capital Stock or Indebtedness of, any Person existing at the time such Person becomes, or becomes a part of, any Restricted Subsidiary; provided that such Liens do not extend to or cover any property or assets of the Company or any Restricted Subsidiary other than the property or assets acquired; provided further that such Liens were not created in contemplation of or in connection with the transactions or series of transactions pursuant to which such Person became a Restricted Subsidiary;
(7) Liens in favor of the Company or any Restricted Subsidiary;
(8) Liens arising from the rendering of a final judgment or order against the Company or any Restricted Subsidiary that does not give rise to an Event of Default;
(9) Liens securing reimbursement obligations with respect to letters of credit that encumber documents and other property relating to such letters of credit and the products and proceeds thereof;
(10) Liens encumbering customary
initial deposits and margin deposits, and other Liens that are within the general parameters customary in the industry
and incurred in the ordinary course of business, in each case, securing Indebtedness under Hedging Obligations permitted
by clause (vi) of Section 4.05(b);”
(11) Liens existing on the Original Issue Date;
(12) Liens securing Indebtedness which is Incurred to refinance secured Indebtedness which is permitted to be Incurred under clause (v) of Section 4.05(b); provided that such Liens do not extend to or cover any property or assets of the Company or any Restricted Subsidiary other than the property or assets securing the Indebtedness being refinanced;
(13) Liens under the Security Documents;
(14) Liens securing any Permitted Pari Passu Secured Indebtedness that complies with each of the requirements set forth under Section 4.22;
(15) any interest or title of a lessor in the property subject to any operating lease;
(16) Liens securing Indebtedness of the Company or any Restricted Subsidiary under any Pre-Registration Mortgage Guarantee which is permitted to be Incurred under clause (vii) of Section 4.05(b);
(17) easements, rights-of-way, municipal and zoning ordinances or other restrictions as to the use of properties in favor of governmental agencies or utility companies that do not materially adversely affect the value of such properties or materially impair the use for the purposes of which such properties are held by the Company or any Restricted Subsidiary;
8
(18) Liens (including extensions and renewals thereof) upon real or personal property; provided that (a) such Lien is created solely for the purpose of securing Indebtedness of the type described under clause (viii) of Section 4.05(b) and such Lien is created prior to, at the time of or within 180 days after the later of the acquisition or the completion of development, construction or improvement of such property, (b) the principal amount of the Indebtedness secured by such Lien does not exceed 100% of the cost of such property, development, construction or improvement and (c) such Lien shall not extend to or cover any property or assets other than such item of property and any improvements on such item, provided that, in the case of clauses (b) and (c), such Lien may cover other property or assets (instead of or in addition to such item of property or improvements) and the principal amount of Indebtedness secured by such Lien may exceed 100% of such cost if (x) such Lien is incurred in the ordinary course of business and (y) the aggregate book value of property or assets (as of the last day of the most recent fiscal quarter period for which consolidated financial statements of the Company (which the Company shall use its reasonable best efforts to compile in a timely manner) are available (which may include internal consolidated financial statements) or, if any such property or assets have been acquired since the date of such financial statements, the cost of such property or assets) subject o Liens incurred pursuant to this clause (18) does not exceed 130% of the aggregate principal amount of Indebtedness secured by such Liens;
(19) Liens on deposits of pre-sale proceeds made in order to secure the completion and delivery of pre-sold properties and issuance of the related land use title made in the ordinary course of business and not securing Indebtedness of the Company or any Restricted Subsidiary;
(20) Liens on deposits made in order to comply with statutory obligations to maintain deposits for workers compensation claims and other purposes specified by statute made in the ordinary course of business and not securing Indebtedness of the Company or any Restricted Subsidiary;
(21) Liens on deposits made in order to secure the performance of the Company or any Restricted Subsidiary in connection with the acquisition of real property or land use rights by the Company or any Restricted Subsidiary in the ordinary course of business and not securing Indebtedness of the Company or any Restricted Subsidiary;
(22) Liens incurred or deposits made to secure Entrusted Loans;
(23) Liens on the Capital Stock of the Person that is to be acquired under the relevant Staged Acquisition Agreement securing Indebtedness which is permitted to be Incurred under clause (xv) of Section 4.05(b);
(24) Liens securing Indebtedness permitted to be under clause (xiv) of Section 4.05(b);
(25) Liens on the Capital
Stock of a PRC Project Company granted by the Company or any PRC Restricted Subsidiary in favor of any Trust Company
Investor (including the sale or transfer of such Capital Stock to such Trust Company Investor) in respect of, and to secure, the
Indebtedness permitted to be Incurred under clause (xvi) of Section 4.05(b);
(26) Liens on cash deposits, bank accounts or other assets to secure Bank Deposit Secured Indebtedness permitted to be Incurred under clause (xvii) of Section 4.05(b);
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(27) Liens on Investment Properties securing Indebtedness of the Company or any Restricted Subsidiary permitted to be Incurred under clause (b)(xviii) of Section 4.05(b);
(28) Liens securing Indebtedness of Restricted Subsidiaries (other than Subsidiary
Guarantors or JV Subsidiary Guarantors) Incurred pursuant to clause (xix) of Section 4.05(b);
(29) Liens securing Indebtedness Incurred under clause (xx) of Section 4.05(b);
(30) Liens on assets of a Non-Guarantor Subsidiary securing any Permitted Subsidiary Indebtedness of any Non-Guarantor Subsidiary permitted to be Incurred under Section 4.05(a);
(31) Liens Incurred to secure cash management services or to implement cash pooling arrangements in the ordinary course of business;
(32) Liens for homeowner,
property owner, condominium and similar association fees, assessments and other payments; and
(33) Liens arising from filing Uniform Commercial Code financing statements
regarding leases; and
(34) Liens to secure Indebtedness Incurred under clause (xxii) of Section 4.05(b).
provided that, with respect to the Collateral, “Permitted Liens” shall only refer to the Liens described in clauses (1), (6), (13) and (14) of this definition.”
““Permitted Subsidiary
Indebtedness” means Indebtedness of, and all Preferred Stock issued by, the Non-Guarantor Subsidiaries, taken as a whole;
provided that, on the date of the Incurrence of such Indebtedness and after giving effect thereto and the application of
the proceeds thereof, the aggregate principal amount outstanding of all such Indebtedness (excluding Public Indebtedness and any
Indebtedness of any Non-Guarantor Subsidiary permitted under clauses (i), (ii), (iv), (vi) and (vii) of Section 4.05(b)) does not
exceed an amount equal to 20.030.0% of Total Assets.”
““PRC Non-Guarantor Subsidiaries” means all Restricted Subsidiaries organized under the laws of the PRC.”
““PRC Project Company”
means any corporation, association or other business entity organized under the laws of the PRC primarily engaged in a
Permitted Businessproperty development which, at any time, is
treated as a “subsidiary” of the Company under GAAP, other than an Unrestricted Subsidiary.”
““Replacement Assets”
means, on any date, property or assets (other than current assets) of a nature or type or that are used in a Permitted
Businessthe businesses of the Company or any of its Restricted Subsidiaries
(including any Capital Stock in a Person holding such property or assets, which is primarily engaged in a Permitted Business
and is or will upon the acquisition by the Company or any Restricted Subsidiary of such Capital Stock become a Restricted
Subsidiary).”
Section 1.2 Deletion of certain defined terms from Section 1.01 of the Indenture. The following defined terms are hereby deleted from Section 1.01 of the Indenture:
““Permitted
Businesses” means any business conducted by the Company and its Restricted Subsidiaries on the Original Issue Date and
other businesses reasonably related, ancillary or complementary thereto.”
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““PRC Restricted
Subsidiary” means a Restricted Subsidiary organized under the laws of the PRC.”
Section 1.3 Addition of certain defined terms to Section 1.01 of the Indenture. The following defined terms are hereby added to Section 1.01 of the Indenture:
““Effective Time” means the date when the Supplemental Indenture enabling the proposed amendments to this Indenture pursuant to the consent solicitation statement in relation to the Notes dated as of January 19, 2016 prepared by the Company and the Subsidiary Guarantors is executed by the Company, the Subsidiary Guarantors, the Trustee and the Shared Security Agent.”
““Exempted Subsidiary” means any Restricted Subsidiary established after the Effective Time organized in any jurisdiction other than the PRC that is prohibited by applicable law or regulation to provide a Subsidiary Guarantee or a JV Subsidiary Guarantee or create any Lien over its Capital Stock to secure any of the secured obligations subject to the Intercreditor Agreement; provided that (x) the Company shall have failed, upon using commercially reasonable efforts, to obtain any required governmental or regulatory approval or registration with respect to such Subsidiary Guarantee, JV Subsidiary Guarantee or Lien over its Capital Stock, to the extent that such approval or registration is available under any applicable law or regulation and (y) such Restricted Subsidiary shall cease to be an Exempted Subsidiary immediately upon such prohibition ceasing to be in force or apply to such Restricted Subsidiary or upon the Company having obtained such applicable approval or registration.”
““Qualified Exchange” means either (1) The New York Stock Exchange, the London Stock Exchange, The Stock Exchange of Hong Kong Limited, the Nasdaq Stock Market or Singapore Exchange Securities Trading Limited or (2) a national securities exchange (as such term is defined in Section 6 of the Exchange Act) or a designated offshore securities market (as such term is defined in Rule 902(b) under the Securities Act).”
““Qualified IPO” means an initial public offering, and a listing, of ordinary shares of a company on a Qualified Exchange; provided that in the case that such listing is on a national securities exchange (as such term is defined in Section 6 of the Exchange Act) or a designated offshore securities market (as such term is defined in Rule 902(b) under the Securities Act), such listing shall result in a public float of no less than the percentage required by the applicable listing rules.”
““Restructuring” means the restructuring and Qualified IPO of the common shares of a Subsidiary in the Restructuring Group.”
““Restructuring Group” means a Subsidiary of the Company through which the Company conducts (directly or indirectly) businesses other than property development business immediately prior to the completion of the Restructuring and its Subsidiaries.”
Section 1.4 Amendment to Section 4.03 of the Indenture. Section 4.03 of the Indenture is hereby amended and restated as follows:
“Section 4.03. Governmental
Approvals and Licenses; Compliance with Law. The Company shall, and shall cause each Restricted Subsidiary to, (a) obtain and
maintain in full force and effect all governmental approvals, authorizations, consents, permits, concessions and licenses as are
necessary to engage in the Permitted Businessesbusinesses of the
Company or any Restricted Subsidiary, (b) preserve and maintain good and valid title to its properties and assets (including
land-use rights) free and clear of any Liens other than Permitted Liens and (c) comply with all laws, regulations, orders, judgments
and decrees of any governmental body, except to the extent that failure so to obtain, maintain, preserve and comply would not reasonably
be expected to have a material adverse effect on (i) the business, results of operations or prospects of the Company and its Restricted
Subsidiaries, taken as a whole, or (ii) the ability of the Company, any Subsidiary Guarantor or any JV Subsidiary Guarantor to
perform its obligations under the Notes, the relevant Subsidiary Guarantee, the relevant JV Subsidiary Guarantee or this Indenture.”
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Section 1.5 Amendments to Sections 4.05(a) and (b) of the Indenture. Sections 4.05(a) and (b) of the Indenture are hereby amended and restated as follows:
“Section 4.05 Limitation
on Indebtedness and Preferred Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, Incur any
Indebtedness (including Acquired Indebtedness), and the Company shall not permit any Restricted Subsidiary to issue Preferred Stock,
provided that the Company, and any Subsidiary Guarantor or any JV Subsidiary Guarantor may Incur Indebtedness
(including Acquired Indebtedness) and any Restricted Subsidiary that is a Non- Guarantor Subsidiary may Incur
Permitted Subsidiary Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application
of the proceeds therefrom, (x) no Default has occurred and is continuing and (y) the Fixed Charge Coverage Ratio would not be less
than 3.02.75 to 1.0. Notwithstanding the foregoing, the
Company shall not permit any Restricted Subsidiary to Incur any Disqualified Stock (other than Disqualified Stock of Restricted
Subsidiaries held by the Company or a Subsidiary Guarantor, so long as it is so held).
(b) Notwithstanding the foregoing, the Company and, to the extent provided below, any Restricted Subsidiary may Incur each and all of the following (“Permitted Indebtedness”):
(i) Indebtedness under the Notes (excluding any Additional Notes and any Permitted Pari Passu Secured Indebtedness of the Company) and each Subsidiary Guarantee and JV Subsidiary Guarantee;
(ii) any Pari Passu Subsidiary Guarantees by any Subsidiary Guarantor or any JV Subsidiary Guarantor;
(iii) Indebtedness of the Company
or any Restricted Subsidiary outstanding on the Original Issue Date excluding Indebtedness permitted under clause (iv) below; provided
that such Indebtedness of Restricted Subsidiaries that are Non-Guarantor Subsidiaries shall be included in the
calculation of Permitted Subsidiary Indebtedness;
(iv) Indebtedness of the Company or any Restricted Subsidiary owed to the Company or any Restricted Subsidiary; provided that (i) any event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or any Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (d) and (ii) if the Company is the obligor on such Indebtedness, such Indebtedness must expressly be subordinated in right of payment to the Notes, and if a Subsidiary Guarantor or a JV Subsidiary Guarantor is the obligor on such Indebtedness and the Company is not the obligee, such Indebtedness must be expressly subordinated in right of payment to the Subsidiary Guarantee of such Subsidiary Guarantor or the JV Subsidiary Guarantee of such JV Subsidiary Guarantor, as the case may be;
(v) Indebtedness of the Company or any Restricted Subsidiary (“Permitted Refinancing Indebtedness”) issued in exchange for, or the net proceeds of which are used to refinance or refund, replace, exchange, renew, repay, defease, discharge or extend (collectively, “refinance” and “refinances” and “refinanced” shall have a correlative meaning), then outstanding Indebtedness Incurred under the immediately preceding paragraph (a) or clauses (i), (ii), (iii), (viii), (xvi), (xvii), (xviii) or (xix) of this paragraph (b) and any refinancings thereof in an amount not to exceed the amount so refinanced (plus premiums, accrued interest, fees and expenses); provided that (1) Indebtedness the proceeds of which are used to refinance the Notes or Indebtedness that is pari passu with, or subordinated in right of payment to, the Notes or a Subsidiary Guarantee or a JV Subsidiary Guarantee shall only be permitted under this clause (v) if (A) in case the Notes are refinanced in part or the Indebtedness to be refinanced is pari passu with the Notes or a Subsidiary Guarantee or a JV Subsidiary Guarantee, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made pari passu with, or subordinate in right of payment to, the remaining Notes or such Subsidiary Guarantee or such JV Subsidiary Guarantee, as the case may be, or (B) in case the Indebtedness to be refinanced is subordinated in right of payment to the Notes or a Subsidiary Guarantee or a JV Subsidiary Guarantee, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes or such Subsidiary Guarantee or such JV Subsidiary Guarantee, as the case may be, at least to the extent that the Indebtedness to be refinanced is subordinated to the Notes or such Subsidiary Guarantee or such JV Subsidiary Guarantee, (2) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced, (3) in no event may Indebtedness of the Company, any Subsidiary Guarantor or any JV Subsidiary Guarantor be refinanced pursuant to this clause by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor or a JV Subsidiary Guarantor, and (4) in no event may Indebtedness of the Company or any Subsidiary Guarantor be refinanced pursuant to this clause by means of any Indebtedness of any JV Subsidiary Guarantor;
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(vi) Indebtedness Incurred by
the Company or any Restricted Subsidiary pursuant to Hedging Obligations entered into in the ordinary course of business
designed solely to protectto reduce or manage the exposure of
the Company or any Restricted Subsidiary against fluctuations in commodity prices, interest rates or foreign currency exchange
rates;
(vii) Pre-Registration Mortgage Guarantees by the Company or any Restricted Subsidiary;
(viii) Indebtedness Incurred
by the Company or any Restricted Subsidiary for the purpose of financing (x) all or any part of the purchase price of assets, real
or personal property (including the lease purchase price of land use rights) or equipment to be used in the ordinary course of
business by the Company or a Restricted Subsidiary in the Permitted Business, including any such purchase through
the acquisition of Capital Stock of any Person that owns such real or personal property or equipment which will, upon acquisition,
become a Restricted Subsidiary, or (y) all or any part of the purchase price or the cost of development, construction or improvement
of assets, real or personal property (including the lease purchase price of land use rights) or equipment to be used in the ordinary
course of business by the Company or such Restricted Subsidiary in the Permitted Business; provided that,
in the case of clauses (x) and (y), (A) the aggregate principal amount of such Indebtedness shall not exceed such
purchase price or cost, (B) such Indebtedness shall be Incurred no later than 180 days after the acquisition of such
asset, property or equipment or completion of such development, construction or improvement and (C) on the date of the Incurrence
of such Indebtedness and after giving effect thereto, the sum of (1) the aggregate principal amount outstanding of all such
Indebtedness permitted by this clause (viii) (together with refinancings thereof, but excluding any Contractor Guarantee Incurred
under this clause (viii) to the extent the amount of such Contractor Guarantee is otherwise reflected in such aggregate principal
amount) plus (2) the aggregate amount outstanding of all Indebtedness permitted and then outstanding under clauses (xvi),
(xvii), (xviii) and, (xx) and
(xxii) below (together with any refinancings thereof) below does not exceed an amount equal to 40.050.0%
of Total Assets;
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(ix) Indebtedness Incurred by the Company or any Restricted Subsidiary constituting reimbursement obligations with respect to workers’ compensation claims or self- insurance obligations or bid, performance or surety bonds (in each case other than for an obligation for borrowed money);
(x) Indebtedness Incurred by the Company or any Restricted Subsidiary constituting reimbursement obligations with respect to letters of credit or trade guarantees issued in the ordinary course of business to the extent that such letters of credit or trade guarantees are not drawn upon or, if drawn upon, to the extent such drawing is reimbursed no later than 30 days following receipt by the Company or such Restricted Subsidiary of a demand for reimbursement;
(xi) Indebtedness arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligation of the Company or any Restricted Subsidiary pursuant to such agreements, in any case, Incurred in connection with the disposition of any business, assets or Restricted Subsidiary, other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of financing such acquisition; provided that the maximum aggregate liability in respect of all such Indebtedness shall at no time exceed the gross proceeds actually received by the Company or any Restricted Subsidiary from the disposition of such business, assets or Restricted Subsidiary;
(xii) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business provided, that such Indebtedness is extinguished within five Business Days of Incurrence;
(xiii) (A) Guarantees by the Company or any Subsidiary Guarantor of Indebtedness of the Company or any Restricted Subsidiary that was permitted to be Incurred by another provision of this covenant (B) Guarantees by any Restricted Subsidiary of Indebtedness of another Restricted Subsidiary that was permitted to be Incurred by another provision of this covenant, or (C) Guarantees by any JV Subsidiary Guarantor of Indebtedness of any other JV Subsidiary Guarantor that is a direct or indirect Subsidiary or parent of such JV Subsidiary Guarantor, which Indebtedness was permitted to be Incurred by another provision of this covenant;
(xiv) Indebtedness of the Company or any Restricted Subsidiary maturing within one year; provided that the aggregate principal amount of Indebtedness permitted by this clause (xiv) at any time outstanding does not exceed US$30.0 million (or the Dollar Equivalent thereof);
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(xv) Indebtedness of the Company or any Restricted Subsidiary constituting an obligation to pay the deferred purchase price of Capital Stock of a Restricted Subsidiary pursuant to a Staged Acquisition Agreement, to the extent that such deferred purchase price is paid within 12 months after the date the Company or such Restricted Subsidiary enters into such Staged Acquisition Agreement;
(xvi) Indebtedness Incurred or
Preferred Stock issued by the Company or any Restricted Subsidiary arising from any Investment made by a Trust Company Investor
in a PRC Project Company; provided that, on the date of Incurrence
of all such Indebtedness or issuance of such Preferred Stock and after giving effect thereto, the sum of (1) the aggregate amount
outstanding of all Indebtedness and Preferred Stock permitted under this clause (xvi) plus (2) the aggregate principal amount
outstanding of all Indebtedness permitted under clause (viii) above and clauses (xvii), (xviii) and,
(xx) and (xxii) below (together with refinancings thereof, but excluding
any Contractor Guarantee Incurred under clause (viii) above to the extent the amount of such Contractor Guarantee is otherwise
reflected in such aggregate principal amount) does not exceed an amount equal to 40.050.0%
of Total Assets;
(xvii) Bank Deposit Secured Indebtedness
Incurred by the Company or any Restricted Subsidiary; provided that,
on the date of the Incurrence of such Indebtedness and after giving effect thereto, the sum of (1) the aggregate principal
amount outstanding of all such Indebtedness Incurred pursuant to this clause (xvii) (together with any refinancings thereof),
plus (2) the aggregate principal amount outstanding of all such Indebtedness Incurred pursuant to clauses (viii) and (xvi)
above and clauses (xviii) and, (xx) and
(xxii) below (together with any refinancings thereof, but excluding any Contractor Guarantee Incurred under clause (viii)
above to the extent the amount of such Contractor Guarantee is otherwise reflected in such aggregate principal amount), does not
exceed an amount equal to 40.050.0% of Total Assets;
(xviii) Indebtedness Incurred
by any Restricted Subsidiary which is secured by Investment Properties; provided that,
on the date of the Incurrence of all such Indebtedness and after giving effect thereto, the sum of (1) the aggregate
principal amount outstanding of all such Indebtedness Incurred pursuant to this clause (xviii) (together with any refinancings
thereof), plus (2) the aggregate principal amount outstanding of all such Indebtedness Incurred pursuant to clauses (viii),
(xvi) and (xvii) above and clauses (xx) and
(xxii) below (together with any refinancings thereof, but excluding any Contractor Guarantee Incurred under clause (viii)
above to the extent the amount of such Contractor Guarantee is otherwise reflected in such aggregate principal amount), does not
exceed an amount equal to 40.050.0% of Total Assets;
(xix) Indebtedness of the Company or any Restricted Subsidiary in an aggregate principal amount outstanding at any time (together with refinancings thereof) not to exceed US$15.0 million (or the Dollar Equivalent thereof);
(xx) Indebtedness Incurred by the
Company or any Restricted Subsidiary constituting a Guarantee of Indebtedness of any Person (other than the Company or a Restricted
Subsidiary) by the Company or such Restricted Subsidiary; provided that,
on the date of the Incurrence of all such Indebtedness and after giving effect thereto, (1) the aggregate principal amount outstanding
of all such Indebtedness Incurred under this clause (xx) (together with any refinancing thereof), plus (2) the aggregate principal
amount outstanding of all Indebtedness Incurred pursuant to clauses (viii), (xvi), (xvii) and (xviii) above
and clause (xxii) below (together with any refinancings thereof, but excluding any Contractor Guarantee Incurred under
clause (viii) to the extent the amount of such Contractor Guarantee is otherwise reflected in such aggregate principal amount),
does not exceed an amount equal to 40.050.0% of Total
Assets; and
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(xxi) Indebtedness Incurred by
the Company or a Restricted Subsidiary Constituting a Subordinated Shareholder Loan.;
and
(xxii) Acquired Indebtedness of any Restricted Subsidiary Incurred and outstanding on the date on which such Person becomes a Restricted Subsidiary (other than Indebtedness Incurred (A) to provide all or any portion of the funds utilized to consummate the transaction or series of transactions pursuant to which a Person becomes a Restricted Subsidiary or (B) otherwise in contemplation of a Person becoming a Restricted Subsidiary or any such acquisition); provided that, on the date of the Incurrence of all such Indebtedness and after giving effect thereto, (1) the aggregate principal amount outstanding of all such Indebtedness Incurred under this clause (xxii) (together with any refinancings thereof), plus (2) the aggregate principal amount outstanding of all Indebtedness Incurred pursuant to clauses (viii), (xvi), (xvii), (xviii) and (xx) above (together with any refinancings thereof, but excluding any Contractor Guarantee Incurred under clause (viii) to the extent the amount of such Contractor Guarantee is otherwise reflected in such aggregate principal amount), does not exceed an amount equal to 50.0% of Total Assets.”
Section 1.6 Amendments to Sections 4.06(c) and (d) of the Indenture. Sections 4.06(c) and (d) of the Indenture are hereby amended and restated as follows:
“(c) The amount of any Restricted Payments (other than cash) will be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or the Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The value of any assets or securities that are required to be valued by Section 4.06 will be the Fair Market Value. The Board of Directors’ determination of the Fair Market Value of a Restricted Payment or any such assets or securities must be based upon an opinion or appraisal issued by an appraisal or investment banking firm of recognized international standing if the Fair Market Value exceeds US$10.0 million (or the Dollar Equivalent thereof), except with respect to any Investment deemed to have been made by the Company or any Restricted Subsidiary in the Restructuring Group in connection with the Restructuring upon designation of such Subsidiaries as Unrestricted Subsidiaries (to the extent such Investment does not constitute a Permitted Investment pursuant to clause (22) of the definition thereof).
(d) Not later than the date
of making any Restricted Payment in excess of US$10.0 million (or the Dollar Equivalent thereof) (other than any Restricted Payments
set forth in clauses (v) through (x) of Section 4.06(a) above and any Investment
deemed to have been made by the Company or any Restricted Subsidiary in the Restructuring Group in connection with the Restructuring
upon designation of such Subsidiaries as Unrestricted Subsidiaries (to the extent such Investment does not constitute a Permitted
Investment pursuant to clause (22) of the definition thereof)), the Company will deliver to the Trustee an Officers’
Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required
by Section 4.06 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.”
Section 1.7 Amendment to Section 4.14(b) of the Indenture. Section 4.14(b) of the Indenture is amended as follows:
“(b) The limitation set forth in Section 4.14(a) above does not limit, and shall not apply to:
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(i) the payment of reasonable and customary regular fees to directors of the Company who are not employees of the Company;
(ii) transactions between or among the Company and any of its Wholly Owned Restricted Subsidiaries or between or among Wholly Owned Restricted Subsidiaries;
(iii) any Restricted Payment of the type described in clause (i) or (ii) of Section 4.06(a) if permitted by that Section 4.06(a);
(iv) any sale of Capital Stock (other than Disqualified Stock) of the Company;
(v)
any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding
of, employment agreements and other compensation arrangements, options to purchase Capital Stock, restricted stock plans, long-term
incentive plans, share award schemes, stock appreciation rights plans, participation plans or similar employee plans and/or indemnity
provided on behalf of employees, officers and directors of the Company or any Restricted Subsidiary, so long as such plan or scheme
is in compliance with the listing rules of the New York Stock Exchange; and
(vi)
any employment, consulting, service or termination agreement, or reasonable and customary indemnification arrangements,
entered into by the Company or any of its Restricted Subsidiaries with directors, officers, employees and consultants in the ordinary
course of business and the payment of compensation pursuant thereto.;
(vii) any transaction between (A) the Company or any Restricted Subsidiary and (B) any entity in the Restructuring Group entered into in connection with the Restructuring, including, without limitation, transactions entered into for purposes of any reorganization in connection with the Restructuring and the entry into, and the performance thereof, of any underwriting agreement or other transaction documents in connection with the Restructuring; and
(viii) any transaction between (A) the Company or any Restricted Subsidiary and (B) any entity in the Restructuring Group entered into in the ordinary course of business, on fair and reasonable terms and disclosed in the offering document issued in connection with the Restructuring, or any amendment, modification, extension or replacement thereof, so long as such amendment, modification or replacement is not more disadvantageous to the Company and its Restricted Subsidiaries than the original transaction described in the offering document issued in connection with the Restructuring and in compliance with the rules of the relevant Qualified Exchange.”
Section 1.8 Amendment to Section 4.15 of the Indenture. Section 4.15 of the Indenture is amended and restated as follows:
“Section
4.15. Limitation on the Company’s Business Activities. The Company shall not, and shall
not permit any Restricted Subsidiary to, directly or indirectly, engage in any business other than a Permitted Business; provided,
however, that the Company or any Restricted Subsidiary may own Capital Stock of an Unrestricted Subsidiary or joint venture
or other entity that is engaged in a business other than Permitted Businesses as long as any Investment therein was not prohibited
when made under Section 4.06.[This Section is Intentionally Left
Blank]
Section 1.9 Amendment to Section 4.17(a) of the Indenture. Section 4.17(a) of the Indenture is hereby amended and restated as follows:
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“Section 4.17. Designation of Restricted and Unrestricted Subsidiaries. (a) Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary, provided that:
(i) no Default shall have occurred and be continuing at the time of or after giving effect to such designation;
(ii) neither the Company nor any Restricted Subsidiary provides credit support for the Indebtedness of such Restricted Subsidiary;
(iii) such Restricted Subsidiary does not own any Disqualified Stock of the Company or Disqualified or Preferred Stock of another Restricted Subsidiary or hold any Indebtedness of, or any Lien on any property of, the Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock or Indebtedness could not be Incurred under Section 4.05 or such Lien would violate Section 4.07;
(iv) such Restricted Subsidiary does not own any Voting Stock of another Restricted Subsidiary, and all of its Subsidiaries are Unrestricted Subsidiaries or are being concurrently designated to be Unrestricted Subsidiaries in accordance with Section 4.17(a); and
(v) the Investment deemed to have been made thereby in such newly-designated Unrestricted Subsidiary and each other newly-designated Unrestricted Subsidiary being concurrently redesignated would be permitted to be made under Section 4.06 (other than any Investment deemed to have been made by the Company or any Restricted Subsidiary in the Restructuring Group upon the designation of the Subsidiaries in the Restructuring Group as Unrestricted Subsidiaries in connection with the Restructuring, provided that (A) the Board of Directors has determined in good faith that the designation of such Subsidiaries as Unrestricted Subsidiaries is necessary to obtain approval from a Qualified Exchange for the Restructuring, (B) at the time of such designation, such Subsidiaries remain Subsidiaries of the Company, and (C) at the time of such designation, such Subsidiaries remain primarily engaged in the businesses other than property development business).”
Section 1.10 Amendment to Section 4.23(a) of the Indenture. Section 4.23(a) of the Indenture is amended and restated as follows:
“Section 4.23. Suspension of Certain Covenants. (a) If, on any date following the
date of this Indenture, the Notes have a rating of Investment Grade from both of the Rating Agencies and no Default has occurred and is continuing (a “Suspension Event”), then, beginning on that day and continuing until such time, if any, at which the Notes cease to have a rating of Investment Grade from either of the Rating Agencies, the following provisions of this Indenture will be suspended:
(1) Section 4.05;
(2) Section 4.06;
(3) Section 4.08;
(4) Section 4.09;
(5) Section 4.10;
(6) Section 4.11; and
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(7) Section 4.13; and
(8) Section 4.15.
Section 1.11 Amendments to Sections 10.02(a) and 10.02(b) of the Indenture. Sections 10.02(a) and 10.02(b) of the Indenture are amended and restated as follows:
“Section 10.02. Future Subsidiary Guarantor Pledgors. (a) None of the Capital Stock of the Non-Guarantor Subsidiaries will be pledged on the Original Issue Date or at any time in the future. In addition, none of the Capital Stock of any future Restricted Subsidiary that may be organized under the laws of the PRC (and, after the Effective Time, the Capital Stock of any Exempted Subsidiaries) will be pledged at any time in the future. If any JV Subsidiary Guarantor is established, the Capital Stock of such JV Subsidiary Guarantor owned by the Company or any Subsidiary Guarantor will be pledged to secure the obligations of the Company under the Notes and the Indenture, and of such Subsidiary Guarantor under its Subsidiary Guarantee, as the case may be, in the manner described above. However, none of the JV Subsidiary Guarantors will provide a Security Document pledging the Capital Stock of its direct or indirect Subsidiaries as security in favor of the Shared Security Agent for itself and for the benefit of the Trustee and the Holders.
(b) The Company shall, for the benefit of the Holders of the Notes, pledge, and cause each Subsidiary Guarantor (other than a JV Subsidiary Guarantor, if any) to pledge, the Capital Stock directly owned by the Company or such Subsidiary Guarantor of any Person that becomes a Restricted Subsidiary or of any Non-Guarantor Subsidiary that becomes a Subsidiary Guarantor, or additional shares of Capital Stock acquired or otherwise received by the Company or such Subsidiary Guarantor of any existing Restricted Subsidiary (in each case, other than Persons organized under the laws of the PRC or Other Non-Guarantor Subsidiaries) after the Original Issue Date, promptly upon such Person becoming a Restricted Subsidiary, to secure the obligations of the Company under the Notes and the Indenture, and of such Subsidiary Guarantor under its Subsidiary Guarantee. After the Effective Time, the Company shall, for the benefit of the Holders of the Notes, pledge, and cause each Subsidiary Guarantor (other than a JV Subsidiary Guarantor, if any) to pledge, the Capital Stock directly owned by the Company or such Subsidiary Guarantor of any Person that becomes a Restricted Subsidiary or of any Non-Guarantor Subsidiary that becomes a Subsidiary Guarantor, or additional shares of Capital Stock acquired or otherwise received by the Company or such Subsidiary Guarantor of any existing Restricted Subsidiary (in each case, other than Persons organized under the laws of the PRC, Other Non-Guarantor Subsidiaries or Exempted Subsidiaries), as soon as practicable after such Person becomes a Restricted Subsidiary or ceases to be an Exempted Subsidiary, to secure the obligations of the Company under the Notes and the Indenture, and of such Subsidiary Guarantor under its Subsidiary Guarantee.”
Section 1.12 Amendments to Section 11.09(a) of the Indenture. Section 11.09(a) of the Indenture is amended and restated as follows:
“Section 11.09. Further
Subsidiary Guarantors. (a) The Company shall cause each of its future Restricted Subsidiaries (other than Persons organized
under the laws of the PRC) after the Original Issue Date (other than any
Person organized under the laws of the PRC or, if on or after the Effective Time, any Exempted Subsidiary), promptly
upon becoming a Restricted Subsidiary or ceasing to be an Exempted Subsidiary,
to execute and deliver to the Trustee a supplemental indenture to this Indenture pursuant to which such Restricted Subsidiary will
guarantee the payment of the Notes as either a Subsidiary Guarantor or JV Subsidiary Guarantor. Notwithstanding the foregoing,
the Company may elect to have any such future Restricted Subsidiary (and
its Restricted Subsidiaries) organized outside the PRC not provide a Subsidiary Guarantee or JV Subsidiary Guarantee
at the time such entityPerson becomes a Restricted Subsidiary
or ceases to be an Exempted Subsidiary, provided that, after giving effect to the Consolidated Assets of such
Restricted Subsidiary, the Consolidated Assets of all Restricted Subsidiaries organized outside the PRC (other
than Exempted Subsidiaries) that are not Subsidiary Guarantors or JV Subsidiary Guarantors do not account for more than
20.0% of Total Assets as of the date such SubsidiaryPerson
becomes a Restricted Subsidiary or ceases to be an Exempted Subsidiary.
Each such Restricted Subsidiary and its Restricted Subsidiaries that do not provide a Subsidiary Guarantee or a JV Subsidiary Guarantee
will also be referred to as Other Non-Guarantor Subsidiaries. If, at any time, the Consolidated Assets of all Restricted Subsidiaries
organized outside the PRC (other than Exempted Subsidiaries) that are
not Subsidiary Guarantors or JV Subsidiary Guarantors exceed 20.0% of the Total Assets, the Company must promptly
cause one or more Other Non-Guarantor Subsidiaries to execute and deliver to the Trustee a supplemental indenture to the Indenture
pursuant to which such Other Non-Guarantor Subsidiaries will guarantee the payment of the Notes and
will become Subsidiary Guarantors such that the 20.0% limitation is complied with and will become Subsidiary
Guarantors.”
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ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.1 This Indenture Supplement shall be governed by and construed in accordance with the laws of the State of New York.
Section 2.2 This Indenture Supplement may be signed in various counterparts which together will constitute one and the same instrument.
Section 2.3 This Indenture Supplement is an amendment supplemental to the Indenture and the Indenture and this Indenture Supplement will henceforth be read together. Except as amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Indenture Supplement shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered under the Indenture shall be bound by the Indenture as amended hereby.
Section 2.4 The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Indenture Supplement or for or in respect of the recitals contained herein all of which are made solely by the Company and the Subsidiary Guarantors.
Section 2.5 Notwithstanding anything contained herein, nothing in this Indenture Supplement shall relieve the Company, the Subsidiary Guarantors, the Trustee and the Shared Security Agent of any of their obligations under the Indenture, as amended and supplemented by this Indenture Supplement, and the Notes.
Section 2.6 In case any provision in this Indenture Supplement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 2.7 The provisions of Articles I of this Indenture Supplement shall be effective upon execution, and shall not become operative until the time the Company pays the Holders who delivered consents to the amendment set forth in this Indenture Supplement, pursuant to and in accordance with the terms and conditions set forth in the Consent Solicitation Statement issued by the Company, dated as of January 19, 2016.
[The remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture Supplement to be duly executed as of the date first above written.
| Xinyuan Real Estate Co., Ltd. By: /s/ Yong Zhang | |
| Name: Yong Zhang | |
| Title: Chairman | |
Xinyuan International Property Investment Co.,
Ltd. | |
| Name: Yong Zhang | |
| Title: Chairman | |
| Xinyuan Real Estate, Ltd. as Subsidiary Guarantor By: /s/ Yong Zhang | |
| Name: Yong Zhang | |
| Title: Chairman | |
| Xinyuan International (HK) Property Investment Co., Limited | |
| as Subsidiary Guarantor By: /s/ Yong Zhang | |
| Name: Yong Zhang | |
| Title: Chairman | |
| Victory Good Development Limited as Subsidiary Guarantor By: /s/ Yong Zhang | |
| Name: Yong Zhang | |
| Title: Chairman | |
[Signature Page – Indenture Supplement]
| South Glory International Limited | |
| as Subsidiary Guarantor By: /s/ Yong Zhang | |
| Name: Yong Zhang | |
| Title: Chairman | |
Elite Quest Holdings Limited
| |
| Name: Yong Zhang | |
| Title: Chairman | |
[Signature Page – Indenture Supplement]
| Citicorp International Limited, as Trustee | |
| By: /s/ Terence Yeung | |
| Name: Terence Yeung | |
| Title: Vice President |
[Signature Page – Indenture Supplement]
| Citicorp International Limited, as Shared Security Agent | |
| By: /s/ Terence Yeung | |
| Name: Terence Yeung | |
| Title: Vice President |
[Signature Page – Indenture Supplement]
SCHEDULE I
LIST OF SUBSIDIARY GUARANTORS
| Name of Company | |
| 1. | Xinyuan International Property Investment Co., Ltd. |
| 2. | Xinyuan Real Estate, Ltd. |
| 3. | Xinyuan International (HK) Property Investment Co., Limited |
| 4. | Victory Good Development Limited |
| 5. | South Glory International Limited |
| 6. | Elite Quest Holdings Limited |
Schedule I – 1