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Astro Nusantara International B.v. And Others v Pt Ayunda Prima Mitra And Others

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date31 October 2013
Year2013
Citation[2014] 1 HKLRD 197
Judgement NumberHCCT45/2010
Subject MatterConstruction and Arbitration Proceedings
CourtHigh Court (Hong Kong)
HCCT45E/2010 ASTRO NUSANTARA INTERNATIONAL B.V. AND OTHERS v. PT AYUNDA PRIMA MITRA AND OTHERS

HCCT 45/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 45 OF 2010

____________

BETWEEN

(1)
 ASTRO NUSANTARA INTERNATIONAL B.V. Judgment Creditors
(2)
 ASTRO NUSANTARA HOLDINGS B.V. (Applicants)
(3)
 ASTRO MULTIMEDIA CORPORATION N.V.
(4)
 ASTRO MULTIMEDIA N.V.
(5)
 ASTRO OVERSEAS LIMITED (formerly known as AAAN (Bermuda) Limited)
(6)
 ASTRO ALL ASIA NETWORKS PLC
(7)
 MEASAT BROADCAST NETWORK SYSTEMS SDN BHD
(8)
 ALL ASIA MULTIMEDIA NETWORK FZ-LLC

and
(1) PT AYUNDA PRIMA MITRA Judgment debtors
(2) PT FIRST MEDIA TBK
(formerly known as PT BROADBAND MULTIMEDIA TBK)		 (Respondents)
(3) PT DIRECT VISION
and
ACROSSASIA LIMITED Garnishee

____________

Before: Deputy High Court Judge Mayo in Chambers
Dates of Hearing: 9-13, 16-19 September and 19 October 2013
Date of Decision: 31 October 2013

________________

D E C I S I O N

________________

INTRODUCTION

1. This is an application of the judgment creditors (herein after referred to as “Astro”) a group of companies based in Malaysia.

2. Astro obtained five arbitral awards against the judgment debtors who for the purposes of this application are represented by the 2nd judgment debtor, PT First Media TBK (“FM”).

3. The judgment debtors are part of a group of companies based in Indonesia referred to as The Lippo Group of companies.

4. The awards were made against FM in the Singapore International Arbitration Centre (“SIAC”) from May 2009 to August 2010 which were registered as a judgment.

5. In this application the garnishee AcrossAsia Ltd (“AAL”) is a company incorporated in the Cayman Islands and is having its principle place of business in Hong Kong.

6. It is relevant to observe that AAL is the parent company of FM. It holds 55.1% of the shares in FM and has a controlling interest in it.

7. FM owes approximately HK$1 billion under the said judgment to Astro.

8. The arbitration awards were made following a bitterly contested dispute relating to a failed satellite television joint venture. (“CVC Venture”)

9. From September to December 2010 pursuant to two orders and a judgment of Saunders J Astro obtained leave to enforce the SIAC Awards in Hong Kong.

10. On 30 June 2011 AAL entered into a Facility Agreement with FM. This Agreement was as follows:



“1) Borrower
AcrossAsia Limited

2) Lender
PT First Media Tbk

3) Credit amount
Up to a maximum of USD44,000,000 (US Dollar forty four million); and at all time the facility amount shall be kept below 50% of FM’s equity (‘the Threshold’): Should the amount withdrawn exceed the Threshold, the Borrower shall repay the excess of FM within 1(one) business day upon receiving written notification from FM

4) Effective date/Conditions
Precedent
The Credit Facility shall be available upon obtaining of the following documents and the completion of the following actions in form and substance satisfactory to FM:

(a)A duly signed and executed copy of this Facility Agreement by the Borrower
(b) Satisfaction of FM’s review of all relevant documents provided by the Borrower pertaining to the Credit Facility
(c)All third parties’ regulatory (including stock exchange, if applicable) and other consents/approvals, required are satisfied both for the Borrower and FM
(d) Fairness Opinion report carried out by internal and/or
an independent valuer/consultant regarding the Credit Facility for FM to enter into
(e)Approval from board of directors of FM to enter into this Facility Agreement
(f) The Borrower has provided a drawdown instruction letter to FM and payment instruction on the beneficiary accounts to receive the Credit Facility
(g) Any other documents as may be reasonably requested by FM


The availability of the Credit Facility for utilisation by the Borrower shall also be subject to there being no material adverse change in the international financial markets and no Event of Default (as set out in the section entitled ‘Events of Default’ below) and the availability of funds of FM from time to time and at the time of request for utilisation by the Borrower.

5) Internal Approval
The availability of the Credit Facility hereunder is subject to the FM’s (applicable) internal approval, having been obtained and subject to review from time to time at any time at FM’s discretion without prior notice to the Borrower

6) Purpose and Utilisation
General working capital and business development and is available in the following manner:
3 months which shall be automatically rolled over (automatic revolving) for a duration of up to 1(one) year (“Maturity”), except for at least 5 business days’ notification in advance in writing by the Borrower, or at FM’s [discretionary] call(as set out in the section entitled ‘On Call’ below)
Upon Maturity, the Credit Facility can be renewed at FM’s [discretionary] decision upon receiving an extension letter from the Borrower at least 7 business days in advance from the Borrower

7) Availability period
The Credit Facility is available for withdrawing for 2 months after signing the Indicative Term Sheet which was made on 27 June 2011

8) Drawdown
Partial drawdown is allowed within the availability period

9) On Call
Notwithstanding any terms contained in this Agreement or any other documentation to the contrary, the Credit Facility provided by FM hereunder is uncommitted and FM reserves its overriding rights at ANY TIME with at least 5 business days prior written notice to the Borrower and at FM’s sole discretion (“On Call”) to (a) terminate the Credit Facility, (b) cancel and withdraw the Credit Facility, (c) cancel or withdraw any undrawn or unutilised Credit Facility or the entire Credit Facility should no part have been utilised or outstanding at such time, (d) demand immediate repayment of all or any amounts withdrawn by the Borrower or contingently outstanding and accrued interest FM is not obliged to provide a reason for any exercise of its discretion hereunder

10) Interest rate
Interest rate is based on London Interbank Offered Interest Rate (“LIBOR”) for a3-month rate plus a fixed margin currently set at 4.75% per annum: The interest received by FM shall be NET of applicable taxes. The fixed margin may be subject to change at any time taking into account prevailing market conditions
Interest will be payable in areas on a Quarterly basis and will be calculated on an actual 360-daybasis
Interest payment date shall be on 30 September, December, March and June(“Interest period”)

11) Repayment
Repayment of the withdrawn amount under this Credit Facility shall be a bullet repayment at Maturity
Repayment shall be including principal and interest secured (if any) from the date of receipt by the Borrower of the Credit Facility up to the date of the payment by the Borrower
In the Event of On Call:
Within5 business days after written notification by FM to the Borrower at any time, the Credit Facility shall be repaid together with interest accrued (if any) from the date of receipt by the Borrower of the Facility up to the date of the payment by the Borrower of the said repayment

12) Prepayment


Subject to at least 5 business days prior written notification to FM, the Borrower may prepay the amount withdrawn, in whole or in part, in minimum amount of USD 50 million and in integral multiples of USD 1.0 million in excess thereof, and WITHOUT penalty at the end of any Interest Period, Amounts prepaid shall not be re-borrowed
Prepayment on any other date of the Interest Period shall be subject to Break-Funding cost of 0.05% and shall be calculated from the date of receipt of the prepayment to the last day of the applicable Interest Period. Break-funding cost will not apply for FM’s call
Amounts prepaid shall not be reborrowed
In the event of Threshold, the payment from the Borrower to FM is not subject to Breaking [funding] cost

13) Event of default
Each of the events or circumstances set out therein is an Event of Default:
(a) The Borrower does not pay on any date any amount payable pursuant to this Agreement
(b) the Borrower fails to comply with or perform any other obligations set out in this Agreement and/or any other related documents and/or any of the conditions contained herein or therein is not met
(c) in the event that FM becomes aware that the Borrower is likely to be unable to comply with its obligations under this Facility Agreement, FM becomes entitled to declare a default and accelerate any payment obligation of the Borrower
(d) the Borrower has a petition for bankruptcy or liquidation served on or commenced by the Borrower

14) Automatic termination
On or at any time after the occurrence of an Event of Default, it shall be FM’s prudence to exercise its rights to terminate this Agreement immediately or at such later time. No failure to exercise not any delay in exercising FM’s right to terminate this Agreement shall in any way impair or affect the exercise thereof or operate as a waiver in whole or in part

15) Cancellation
This Agreement may be cancelled by the Borrower at any time by giving at least 5 business day’s written notice to FM. A 0.3% flat fee shall be applied for such cancellation

16) Covenants by the Borrower
The Borrower covenants and undertakes to FM that:
(a) The Borrower obtain FM’s written consent prior to execution of any other arrangements that
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