In re Hong Kong (Link) Bicycles Ltd.

HCCW856/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING-UP NO.856 OF 1998

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R E A S O N S

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1. The petition to wind up Hong Kong (Link) Bicycles Ltd. ("HKL") was presented on 13 November 1998 and first came on for hearing on 25 January 1999. Since then, there have been several adjournments. HKL applied for a further adjournment which was opposed by Credit Agricole Indosuez ("CAI"), one of the supporting creditors. Both the Petitioner, International Finance Company ("IFC") and the other supporting creditor, Bank of America Asia Ltd. ("BoA") adopt a neutral stance in that although they support the adjournment, they have no objection to a winding up order either. At the hearing, the Company's application for a further adjournment was refused and a winding up order made. The reasons appear below.

The corporate structure

2. HKL is a wholly owned subsidiary (via Canda Co. Inc.) of Hong Kong Link International (Holdings) Ltd. which is wholly owned by Sze Chin Hung, Jerome and his wife, Rita Chan. HKL in turn owns 19.4% of the issued shares in Shenzhen China Bicycle Co. (Holdings) Ltd. ("SCBC") which is a joint stock limited company incorporated under the laws of the PRC and listed on the Shenzhen Stock Exchange. HKL, which is a Hong Kong incorporated company, has been the vehicle through which SCBC has carried on the major part of its international business activities. HKL also owns 100% of the shares in Bejka Trading Co.

3. Bejka was one of the vendors in the transaction known as "the Diamondback Sale" entered into on 8 December 1998, after the presentation of the petition. Inter alia, all Bejka's assets were sold and the proceeds transferred to SCBC, partly to repay a debt owed to SCBC and the balance as a loan to SCBC. SCBC has a number of wholly-owned subsidiaries including China Bicycle Co. (HK) Ltd. ("CBC(HK)") and Zoria Pte Ltd. ("Zoria"), a company incorporated in Singapore used as a special purpose for borrowings from Singapore. It is not disputed that SCBC, CBC(HK) and Zoria (together "the SCBC Group") has no shareholding interest directly or indirectly in HKL.

HKL's Indebtedness

4. HKL is guarantor of various loans made to the SCBC Group to fund SCBC's business activities. It is also the guarantor of a bank loan made to Diamondback Deutschland GmbH ("DB Deutschland"). This is part of the Diamondback Group which is also owned by Mr Sze and his wife.

5. In addition to indirect indebtedness arising under guarantees, HKL is directly indebted to (a) ING Bank ("ING") in respect of a bank loan, (b) to the Petitioner under certain put options, (c) to HKL's employees and sundry creditors and (d) to SCBC, CBC(HK), Regal International Development Co. Ltd. and certain companies in which Mr Sze but not HKL has a direct or indirect equity interest (collectively "Related Parties"). Set out below is a summary of HKL's indebtedness.

A. Indirect debts arising under guarantees

B. Direct debts

The Group's Debt Compromise Proposal ("DCP")

6. At the first hearing of the petition in January, HKL sought an adjournment on the basis that SCBC had put forward a restructuring plan with which HKL and the Related Parties were in agreement. A critical feature of the restructuring plan was the completion of the Diamondback Sale scheduled for the end of January 1999. The restructuring plan would extend to HKL's indebtedness to banks (direct or indirect), IFC and the Related Parties. The hearing was adjourned to 23 March to enable Pricewaterhouse Coopers ("PwC") to prepare a report on the restructuring plan, and if positive, would lead to a DCP to be put to the Group's non-domestic lenders. "Group" in this context refers to the SCBC Group, DB Deutschland and HKL in all of which Mr Sze has an indirect equity interest but as noted above the SCBC Group has no shareholding interest in HKL. Nor has DB Deutschland. PwC's report was positive and a DCP was sent to non-domestic lenders on 15 March 1999 ("DCP I"). The non-domestic lenders were given until 19 April to respond.

7. Set out below is a list of non-domestic lenders whose consent to DCP I was sought ("the non-domestic lenders").

a. UOB is a lender only as Syndicate member and unlike the other three Syndicate members had not made any independent loan.

b. This does not include the amount of $4.8 million due to IFC from HKL under put options.

8. DCP I was conditional on the support of 100% of the non-domestic lenders. In view of the opposition of CAI, it was clear by the hearing on 22 March 1999 that DCP I could go no further. On 1 April 1999, a revised proposal ("DCP II") was sent to the non-domestic lenders. The terms were the same as in DCP I save that the support of only 90% in value of monies owed by the Group was sought. The non-domestic lenders were asked to respond by 9 April 1999 although DCP II was not to lapse until 19 April.

9. On 9 April 1999, DBS as lead bank for the Singapore Syndicate made a counter proposal which was repeated by all Singapore based non-domestic lenders on 12 April 1999. The 9 April fax from DBS stated :

".... the syndicate banks are willing to consider a compromise package, which must include the following key terms (not exhaustive):

(i) At least 30% immediate payment of the total loan outstanding (P+1) under the Facility.

(ii) Satisfactory residual claim arrangement on the remaining 70% tota (sic) loan outstanding under the Facility.

(iii) To transfer the US$20 million Diamondback sale proceeds to an independent custodian bank."

The Singapore based non-domestic lenders together hold over 40% of the indebtedness owed to the non-domestic lenders whose consent to DCP II was sought. In view of their response, DCP II was clearly a dead letter. It had the effect of precipitating a further DCP on 29 April 1999 ("DCP III"), the closing date for which is 31 May 1999.

10. By letter dated 26 April 1999, the non-domestic lenders were advised by SCBC that DCP III would be presented to them during that week. The non-domestic lenders were advised that :

".... [The winding up] proceedings have now reached a stage where the Court will require some indication from HKL's creditors (56% of which are non-domestic lenders under guarantees and 38.5% of which are related companies - total of 94.5%) as to whether they support a further adjournment of the winding up proceeding against HKL. In this regard, if creditors are supportive of a further adjournment to enable them to consider a revised DCP, then the Court may take this into consideration when dealing with the winding up petition. Generally, the Court is supportive of genuine restructuring initiatives but does expect (at this late stage of the restructure) that non-domestic lenders will indicate to it their wishes to assist it with its determination.

If you do not make your position clear to the Court then, by keeping silent, you are allowing another party to sweep away your opportunity to consider DCP or other alternatives to the liquidation of the Group. Your express support is now necessary if you do not wish HKL to be liquidated. HKL cannot avoid liquidation by acting alone ...

In summary, we are now looking for some constructive feedback from non-domestic lenders in respect to the winding up of HKL so this can be advised to the Court. In this regard, attached to the letter from Richards Butler dated 23 April 1999, is a pro-forma letter for your consideration which we request that you complete and return to Richard Bulter by facsimile by no latter than noon on Friday, 30 April 1999 so they can advise the Court of your attitude."

The letter dated 23 April 1999 from SCBC's solicitors reported on the winding up proceedings to date. Since DCP II had failed to attain the level of support required, Richards Butler opined that :

"... This now leaves HKL with the following alternatives:

1. Allow a winding up order to be made against it.

2. Persuade all Non-Domestic Banks, including the two which rejected [DCP II], to accept it.

3. Formulate a different debt restructuring proposal which may be accepted by all Non-Domestic Banks.

4. Proceed with a s.166 Companies Ordinance scheme of arrangement. This will require the support of 50% in number and 75% in value of HKL's creditors. Compared with a debt restructuring where 100% of creditors are in agreement, the disadvantages of a scheme of arrangement are that the procedure is cumbersome, more costly and is likely to take several months to complete."

It then referred to an anticipated DCP III being released during the week of 26 April and advised SCBC in the following terms :

"... If the Court is permit a further adjournment of the hearing of the winding up petition to enable the Non-Domestic Banks to consider a further proposal, we expect that it will require written indications from the remaining Non-Domestic Banks that they are interested in further considering alternatives to the liquidation of HKL and support a further adjournment of the hearing of the winding up petition to enable them to do so. In the absence of such evidence for the hearing on 3 May 1999, the Court may well conclude that those Non-Domestic Banks who have not responded are indifferent or may favour the liquidation of HKL, and accordingly grant a winding up order. This is a matter which requires the support of HKL's Non-Domestic Banks. HKL's voice alone will be insufficient to persuade the Court that an alternative to liquidation is in the interests of HKL's creditors and what HKL's creditors want."

11. Pursuant to Richards Butler's advice, SCBC sent out the pro forma letter to each non-domestic lender requesting its return by noon on Friday, 30 April 1999 in view of the impending court hearing on 3 May 1999.

12. In the event, the petition could not be heard on 3 May. Instead, it was adjourned for three days and heard on 6 May. Notwithstanding the additional three days, there was no response from five of the non-domestic lenders (i.e. Nanyang, DBS, the Singapore Syndicate, the Bank of East Asia and ICBC as lender to SCBC) to the pro forma letter. Together they hold approximately 30% of the total indebtedness to the Group. Three of the non-domestic lenders whose debts total 18.4% of the indebtedness rejected DCP III and supported the making of a winding up order on 6 May. Plainly, if DCP III was contingent on the support of creditors holding at least 90% in value of the overall indebtedness, the position of these three non-domestic lenders (i.e., Chinese Merchants, China Mercantile and CAI) would have put paid to DCP III, rendering otiose any further adjournment.

13. Counsel for HKL submitted that the fact that DCP III did not achieve the 90% support sought did not mean that it could still not go forward. But the validity of that submission has to be examined in the light of the evidence.

14. In his 4th Affirmation, Mr Weerdenburg, an Associate Director of Managing Partners Limited, a specialist corporate recovery firm seconded to SCBC, stated as follows :

"7. ... If Non-Domestic Lenders who hold at least 90% of the amount of debt owned by the Group to Non-Domestic Lenders accept one or more of the options offered, the Group proposes to proceed with the 29 April 1999 Proposal (subject to legal and regulatory requirements) and, if necessary, will consider proceeding by way of a formal scheme of arrangement for HKL. ...

.....

"9. If the 29 April 1999 Proposal is accepted by Non-Domestic Lenders who hold at least 90% of the amount of debt owned by the Group to Non-Domestic Lenders but there is not unanimous acceptance, in outline, the Group's management envisages proceeding as follows:

(a) HKL would propose a formal scheme of arrangement ('the HKL Scheme') under which the following payments would be offered to HKL's creditors from part of the Escrow Monies:

(i) 7c in the $ in respect of the ING Debt, the Guarantee debts, the IFC Debt and the BoA Debt. The return under the HKL Scheme in respect of the fore-going debts would be a slightly higher than that estimated in PwC's Report in the event of liquidation of HKL (6.8%).

(ii) 25c in the $ to employees of HKL with the balance paid over the 12 months following completion of the HKL Scheme.

(iii) 25c in the $ to trade and sundry creditors of HKL in full settlement of their debts.

(iv) The Related Party Debts would be sub-ordinated to the claims of HKL's other creditors and no payment would be made in respect of the Related Party Debts under the HKL Scheme.

(b) The Group excluding HKL would make a debt compromise proposal ('the SCBC DCP') along the lines of the 29 April 1999 Proposal with the cash element in Options A, B and C reduced to take account of funds re-allocated in relation to the HKL Scheme.

(c) Creditors in respect of the ING Debt, the Guarantee Debts and the IFC Debt who participate in the HKL Scheme and receive 7c in the $ under the HKL Scheme would still be entitled to accept the SCBC DCP. However, such creditors would then only be entitled to receive a maximum of 17c in the $ rather than 24c in the $ through the SCBC DCP. Alternatively, creditors in respect of the ING Debt, the Guarantee Debts and the IFC Debt could elect not to claim in the HKL Scheme at all in which case they would be entitled to receive a maximum of 24c in the $ through the SCBC DCP. Such creditors would be required to fully release HKL in respect of their claims" (emphasis added)

15. I do not consider that Mr Weerdenburg's evidence can be read as meaning that DCP III may still proceed although there is less than 90% support : it would render "at least 90%" meaningless. Further, it is also clear that "the HKL Scheme" will not get off the ground unless there is support for DCP III from non-domestic lenders who hold at least 90% of the overall indebtedness. The reason appears in Mr Weerdenburg's 3rd Affirmation where at para.6 he said :

"In view of the time and expense involved in connection with such scheme of arrangement, the Group is not prepared to incur additional costs in proceeding with such a scheme until it knows there is a sufficient level of support from the non-domestic lenders."

The "level of support" referred to and sought for DCP II was again a 90% support. In the circumstances, I have the greatest difficulty in accepting HKL's submission that notwithstanding the express requirement of "at least 90%" support, something less (the extent of which remains at large) would somehow do. That the level of support required is infinitely 'elastic' is unsupported by the evidence.

16. Even assuming for th e sake of argument that a 90% level of support is not an inflexible requirement, the viability of DCP III and also that of the HKL Scheme would depend on the stance of the Singapore Syndicate and DBS one of the constituent members of the Syndicate but which is independently a non-domestic lender. From the perspective of the HKL Scheme, creditors other than employers of HKL and Related Parties form a separate class. Of that class, 37.873% in value support an adjournment whereas 24.306% are against it. DBS and the Singapore Syndicate which hold the remaining 37.821% have chosen to remain silent notwithstanding the very clear terms of both SCBC's letter of 26 April and Richard Butler's letter of 23 April.

17. There is evidence in the form of an affirmation of Wong Yu May, the General Manager of CAI, Guangzhou Branch, that he had spoken with a representative of DBS in its capacity as agent of the Singapore Syndicate on 5 May 1999 and was informed that the Singapore Syndicate is not prepared to accept DCP III. Mr Wong went on to say that he was also informed by the same representative that the Singapore Syndicate is not prepared to agree to an adjournment and therefore has not returned a letter to HKL to indicate support for an adjournment despite Mr Weerdenburg's request. Given that DCP III does not satisfy the terms and conditions expressly stated in DBS's fax of 9 April 1999, this is hardly surprising.

18. Mr Carolan, counsel for HKL, urged the court to attach little weight to that evidence for two reasons : first, the representative of DBS was not identified by name and second, it was hearsay. It is Mr Carolan's understanding on instructions that a communication was expected from the Singapore Syndicate on the very day of the hearing (6 May) which would be in the nature of a further counter proposal. Since a counter proposal necessarily implies a rejection of DCP III, it is not apparent why little weight should be attached to Mr Wong's evidence.

19. Each of the non-domestic lenders including the Singapore Syndicate was put on notice by the very clear terms of the letters from SCBC and Richards Butler of the importance of making its position known to the court. Completion of the pro forma letter would not have committed the relevant non-domestic lender to any binding acceptance of DCP III. Failure to do so is evidence, at a minimum, of an indifference to an adjournment. As explained above, the support of the Singapore Syndicate and DBS is critical to any HKL Scheme even assuming (in favour of HKL) that SCBC (through Mr Van Weerdenburg) did not mean what it said as to having to have "at least 90%" support before proceeding further with any HKL Scheme.

20. In view of the fact that specific support sought of 90% has not been achieved, what SCBC may or may not do in the circumstances in terms of proceeding with DCP III and the HKL Scheme is entirely speculative. The court is driven to conclude that it is being used as leverage in the brinkmanship bargaining that is and has been taking place between SCBC and some of the non-domestic lenders which is quite improper. It would not be appropriate to grant any further adjournment unless it would serve a useful purpose. The case for granting a further adjournment of the petition plainly has not been made out in that it does not have the necessary support. Accordingly, the application for an adjournment must be dismissed and HKL wound up.