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3BB INTERNET INFRASTRUCTURE FUND Proxy Solicitation & Information Statement 2022

Sep 12, 2022

75066_rns_2022-09-12_c219188f-f495-489b-9b64-4b249ed30abe.pdf

Proxy Solicitation & Information Statement

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(Translation)

Date: 12 September 2022

  • No. 1642/2022

  • Re: Notifying the change of the date and agenda of extraordinary general meeting of unitholders no.1/2022

  • To: President, The Stock Exchange of Thailand

  • Ref: Information memorandum of Jasmine Broadband Internet Infrastructure Fund (JASIF) re: termination of or amendment to various agreements in relation to the seeking of benefits from JASIF’s infrastructure assets and other related transactions; and fixing the record date in respect of EGM no. 1/2022, dated 4 August 2022

  • Enc.: 1. Information memorandum on related party transactions in relation to the termination of or amendment to the agreements in relation to the seeking of benefits from the infrastructure assets – optical fibre cables, and other related transactions (Annex 1)

  • Key summary of the proposed amendments to the agreements in relation to the Fund (Annex 2)

BBL Asset Management Company Limited (the “ Management Company ”), as management company of Jasmine Broadband Internet Infrastructure Fund ( JASIF or the Fund ), published an information memorandum referred to above on 4 August 2022 to notify that the Fund’s electronic extraordinary general meeting of unitholders no.1/2022 (the E-EGM no. 1/2022 ) will take place on Friday 23 September 2022 at 13.00 and that the record date for concluding a list of unitholders entitled to attend the E-EGM no. 1/2022 is Friday 19 August 2022.

As the relevant parties have agreed on the relevant terms of the amendments to the relevant transactions to be proposed to the unitholders and the Management Company has been notified by Jasmine International Public Company Limited on 11 September 2022 on its proposal to pay the advance rental, the Management Company considers that it needs more time to amend and prepare meeting documents and restructure the unitholders’ meeting agendas so as to be in line with the terms as amended by the relevant parties and to ensure that the unitholders have comprehensive information for their decision making. The Management Company therefore deems it appropriate to change the date and agendas of the E-EGM no.1/2022, details of which are as set out below:

Original date and agenda of
meeting		 New date and agenda of meeting
Date of E-EGM no.1/2022 Friday 23 September 2022 at 13.00 Tuesday 18 October 2022 at 13.00
Record Date of E-EGM
no.1/2022		 Friday 19 August 2022 Friday 19 August 2022
The Management Company deems
it appropriate to use the original
Record Date (i.e. Friday 19 August
2022) in order to preserve the rights
of the unitholders entitled to attend
the
E-EGM
no.
1/2022
in
accordance with the said Record
Date.

1

Agenda

Agenda 1:

To consider and approve the waiver of and/or amendment to certain provisions of the Benefits Seeking Agreements, the termination of the relevant Benefits Seeking Agreements, and the amendment to the Fund’s scheme to the extent necessary to comply with the resolution of unitholders on the related matters

Agenda 1.1:

To consider and approve (i) JAS’s sale of its investment units in the Fund and its ordinary shares in TTTBB to AWN and/or any person designated by AWN, (ii) the waiver of and/or amendments to certain provisions relating to the replacement of JAS with AWN and/or any person designated by AWN as the sponsor, and (iii) the amendment to the Fund’s scheme to the extent necessary to reflect the unitholders’ resolution

Agenda 1.2:

To consider and approve the waiver of and/or amendment to the noncompetition provision and other matters under the Undertaking Agreement and the amendment to the Fund’s scheme to the extent necessary to reflect the unitholders’ resolution

Agenda 1.3:

To consider and approve (i) the waiver of and/or amendment to certain provisions relating to the lease and rental payment of optical fibre cables, (ii) the termination of the Rental Assurance Agreement and the Marketing Services Agreement, and (iii) the amendment to the Fund’s scheme to the extent necessary to reflect the unitholders’ resolution

Agenda 1.4:

To consider and approve the waiver of and/or amendment to certain provisions relating to the Undertaking Agreement, the termination of the Escrow Account Agreement, and the amendment to the Fund’s scheme to

Agenda 1:

To consider and approve: (i) JAS’ sale of its investment units in the Fund and its ordinary shares in TTTBB to AWN and/or any person designated by AWN, (ii) the waiver of and/or amendment to certain provisions of the Benefits Seeking Agreements, (iii) the termination of the relevant agreements, (iv) the increase in advance rental payment payable by TTTBB to the Fund, and (v) the amendment to the Fund’s scheme to the extent necessary to reflect the unitholders’ resolution, including any amendment to the Fund’s scheme which ensures the Fund’s recovery of investments in an amount not exceeding the advance rental payment payable by TTTBB to the Fund.

The meeting will consider agenda 2 only if the unitholders’ meeting does not approve the agenda 1.

Agenda 2:

To consider and approve: (i) JAS’s sale of its investment units in the Fund and its ordinary shares in TTTBB to AWN and/or any person designated by AWN, (ii) the waiver of and/or amendment to certain provisions of the Benefits Seeking Agreements, (iii) the termination of the relevant agreements, (iv) the increase in advance rental payment payable by TTTBB to the Fund, and (v) the amendment to the Fund’s scheme to the extent necessary to comply with the resolution of unitholders on the related matters, including any amendment to the Fund’s scheme which assures the Fund’s recovery of investments in an amount not exceeding the advance rental payment payable by TTTBB to the Fund, provided each matter will be considered separately.

However, the unitholders’ meeting will consider and vote on agenda 2.2 and 2.3 only after agenda 2.1 is approved. The result of agenda 2.2 and 2.3 are not conditional upon

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the extent necessary to reflect the
unitholders’ resolution
The result of the unitholders’ meeting
under agenda 1.1-1.2 above are
conditional upon each other but are
not conditional upon the result of
agenda 1.3-1.4 and the result of
agenda 1.3 and 1.4 are not conditional
upon each other. In other words, the
Fund will be able to proceed with
agenda 1.1 and 1.2 only if the
unitholders’ meeting approve both of
the agenda 1.1 or 1.2 and if the
unitholders’ meeting disapprove the
proposed matters under any of agenda
1.3 and/or 1.4, the Fund will still be
able to proceed with agenda 1.1 and
1.2 as approved.
Agenda 2:
To consider other business (if any)		 each other and not conditional on
the result of agenda 2.1.
Agenda 2.1:
To consider and approve: (i) JAS’s
sale of its investment units in the
Fund and its ordinary shares in
TTTBB to AWN and/or any person
designated by AWN, (ii) the waiver
of and/or amendment to certain
provisions
relating
to
the
replacement of JAS with AWN
and/or any person designated by
AWN as the sponsor, (iii) the
amendment to the non-competition
provision and other matters under
the Undertaking Agreement, and
(iv) the amendment to the Fund’s
scheme to the extent necessary to
reflect the unitholders’ resolution
Agenda 2.2:
To consider and approve (i) the
waiver of and/or amendment to
certain provisions relating to the
lease and rental payment of optical
fibre cables, (ii) the termination of
the Rental Assurance Agreement
and
the
Marketing
Services
Agreement, (iii) the increase in
advance rental payment payable by
TTTBB to the Fund, and (iv) the
amendment to the Fund’s scheme to
the extent necessary to reflect the
unitholders’ resolution, including
any amendment to the Fund’s
scheme which ensures the Fund’s
recovery of investments in an
amount not exceeding the advance
rental payment payable by TTTBB
to the Fund
Agenda 2.3:
To consider and approve: (i) the
waiver of and/or amendment to
certain provisions relating to the
Undertaking Agreement, (ii) the
termination of the Escrow Account
Agreement,
and
(iii)
the
amendment to the Fund’s scheme to
the extent necessary to reflect the
unitholders’ resolution

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Also, please review the following documents attached hereto: (i) the information memorandum on related party transactions ( Annex 1 ), (ii) and the key summary of the proposed amendment to the agreements in relation to the Fund ( Annex 2 ).

The entry into the transaction by the Fund is conditional upon (a) the Fund having obtained an approval from its unitholders’ meeting and the Management Company having successfully discussed terms of the relevant agreements with all parties concerned; (b) the Fund having been granted an approval or waiver from Bangkok Bank Public Company Limited (“ BBL ”) under the Facilities Agreement between the Fund and BBL dated 19 November 2019 for the purpose of this transaction; and (c) the disposal of shares and investment units between JAS and AWN having been completed. However, if one of the aforementioned conditions is not met, the Fund will not enter into the transactions as proposed to the unitholders.

The Management Company will send written notice of meeting, together with supporting documents, to unitholders at least 14 days before the date of meeting.

Please be informed accordingly.

Sincerely yours,

Mr. Pornchalit Ploykrachang Deputy Managing Director BBL Asset Management Company Limited

Real Estate & Infrastructure Investment Tel 0-2674-6400 ext. 551 ext. 554

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(Translation)

Annex 1

Information Memorandum on Related Party Transactions In relation to the Termination of or Amendment to the Agreements on the Seeking of Benefits from the Infrastructure Assets - Optical Fibre Cables, and other Related Transactions

BBL Asset Management Co., Ltd. (the “Management Company” ), acting as a management company for Jasmine Broadband Internet Infrastructure Fund ( “JASIF” or the “Fund” ), has considered a letter on the details of proposed amendments to certain agreements relating to the Fund dated 4 July 2022 (the “Letter dated 4 July 2022” ) and a letter on the proposed advance rental payment to the Fund dated 11 September 2022 (the “Letter dated 11 September 2022” ), from Jasmine International Public Company Limited (“ JAS” ), which relate to (i) the sale of its ordinary shares in Triple T Broadband Public Company Limited ( “TTTBB” ) and its investment units in the Fund to Advanced Wireless Network Company Limited ( “AWN” ), and (ii) the termination of or amendment to the agreements concerning the seeking of benefits from the infrastructure assets (collectively, the Benefits Seeking Agreements ). Then, the Management Company has considered to further propose the above matters and other related transactions into which the Fund may enter with its related parties to the unitholders’ meeting of the Fund for their consideration and approval. Details are set out as follows:

1. Transaction date

The entry into the transaction by the Fund is conditional upon (a) the Fund having obtained an approval from its unitholders’ meeting and the Management Company having successfully discussed terms of the Benefits Seeking Agreements with all parties concerned; (b) the Fund having been granted an approval or waiver from Bangkok Bank Public Company Limited ( “BBL” ) under the Facilities Agreement between the Fund and BBL dated 19 November 2019 (the “Facilities Agreement ”) for the purpose of this transaction; and (c) the disposal of shares and investment units between JAS and AWN having been completed. The proposed transaction is expected to complete in the first quarter of 2023. However, if one of the aforementioned conditions is not met, the Fund will not enter into the transactions as proposed to the unitholders.

2. Parties involved, their relationship with the Fund and related person to the Fund

The parties involved consist of:

  • (a) JAS

  • (b) TTTBB;

  • (c) TTT Internet Co., Ltd. ( TTTI ),

whereby the parties under (a) to (c) are parties to the Benefits Seeking Agreements; and

  • (d) AWN (or any person designated by AWN) as the new Sponsor, which is not related to the Fund.

Related parties

(a) JAS

JAS’s unitholding in the Fund exceeds 10.00% of the Fund’s total issued units. As at 19 August 2022, JAS held 19.00% of the Fund’s total issued and outstanding units. As such, JAS is a related party of the Fund under the definition set out in the Notification of the Capital Market Supervisory Board no. Tor Nor. 38/2562 re: rules, conditions and procedures for the

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(Translation)

establishment and management of infrastructure funds dated 25 April 2019 (as amended) (the “Notification No. Tor Nor. 38/2562” ) and the Notification of the Office of Securities and Exchange Commission no. Sor Thor. 14/2558 re: rules on the prevention and management of conflicts of interest dated 7 April 2015 (as amended) (the “Notification No. Sor Thor. 14/2558” ).

(b) TTTBB and TTTI

TTTBB and TTTI are the Fund’s related parties under the definition of the Notification No. Tor Nor. 38/2562 and the Notification No. Sor Thor. 14/2558. This is because TTTBB and TTTI are the persons whose major shareholder is a major unitholder of the Fund, which means a holder of more than 10% of the Fund’s total issued and outstanding units, i.e. TTTBB and TTTI are subsidiaries of JAS. As at 19 August 2022, JAS (directly or indirectly) held 99.87% and 99.99% of the total issued and outstanding shares in TTTBB and TTTI, respectively, and JAS is a major unitholder of the Fund owning 19.00% of the total issued and outstanding units as at 19 August 2022.

(c) AWN

After the completion of the proposed transaction, AWN will become a holder of 19.00% of the Fund’s total issued and outstanding units (which is more than 10% of the Fund’s total issued and outstanding units) and so AWN will be considered as a related party of the Fund under the definition of the Notification No. Tor Nor. 38/2562 and the Notification No. Sor Thor. 14/2558.

3. General information about the Transaction

3.1. Approval of (i) the sale of investment units in the Fund and the sale of shares in TTTBB by JAS to AWN and/or any person as designated by AWN and (ii) the waiver of and/or amendment to certain provisions relating to the replacement of JAS with AWN and/or any person as designated by AWN as the Sponsor

Under the Amended and Restated Undertaking Agreement to which the Fund, JAS, TTTBB and TTTI are parties (the “Undertaking Agreement” ), JAS is required to maintain its minimum shareholding and control in TTTBB and TTTI (indirectly) of 76% of the total shares in each of TTTBB and TTTI. In addition, JAS is required to maintain its minimum unitholding of 19% of the total investment units in the Fund until 20 November 2025 and its minimum unitholding of 15% from 21 November 2025 to 29 January 2032, which is the expiry date of the Main Lease Agreement, unless prior consent is granted by the Fund or otherwise permitted under the Undertaking Agreement.

Therefore, the sale of 7,529,234,885 ordinary shares in TTTBB held by Acumen Co., Ltd. ( “ACU” ) (ACU is a wholly-owned subsidiary of JAS), accounting for 99.87% of the total issued and outstanding shares in TTTBB, to AWN and/or any person designated by AWN (the “Disposal of Shares ”) and the sale of 1,520,000,000 investment units in the Fund held by JAS, accounting for 19.00% of the total investment units in the Fund, to AWN and/or any person designated by AWN (the “Disposal of Investment Units” ), requires prior consent from the Fund.

In line with the Disposal of Shares and the Disposal of Investment Units, JAS must further assign its rights and obligations under the Undertaking Agreement to AWN and/or any person designated by AWN in accordance with the original terms and conditions. As such, JAS, AWN and/or any person designated by AWN and the Fund must enter into a new agreement and the waivers and/or amendments to certain provisions of the Benefits Seeking Agreements which relate to the replacement of JAS with AWN and/or any person designated by AWN as the Sponsor, which requires prior consent from the Fund.

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(Translation)

Furthermore, the terms of the Facilities Agreement entered into between the Fund and BBL prohibit the Fund from amending, novating or terminating the Benefits Seeking Agreements, amending the Fund’s scheme except as required by law or to comply with the law, decreasing its capital unless consented by BBL. The termination of any of the Benefits Seeking Agreements by the Fund will constitute an event of default under the Facilities Agreement. Accordingly, the Fund also needs to seek a prior waiver from BBL before proceeding with the above. The Management Company has initially informed BBL of the Disposal of Shares and the Disposal of Investment Units and is currently coordinating with BBL on this matter, in concurrence with, convening a unitholders’ meeting.

Set out below is the general information of AWN for consideration.

General information of AWN

Company name : Advanced Wireless Network Company Limited Business : Telecommunication service provider, for example cellular telephone network, high speed internet, corporate service including cloud, data center, cyber security and ICT solution Company registration number : 0105548115897 Registered capital (as at 3 August 2022) : THB 1,350,000,000 Head office : 414 Phaholyothin Road Samsen Nai Sub-District Phayathai District Bangkok List of directors : 1. Mr. Kan Trakulhoon 2. Mr. Allen Lew Yoong Keong 3. Mr. Somchai Lertsutiwong 4. Mr. Krairit Euchukanonchai

  1. Mr. Surasak Vajasit 6. Miss Jean Low Ngiap Jong 7. Mr. Gerardo C. Jr. Ablaza

  2. Mr. Sarath Ratanavadi

  3. Miss Yupapin Wangviwat 10. Mr. Smith Banomyong 11. Mr. Arhur Lang Tao Yih

  4. List of shareholders : 1. Advanced Info Service Company Limited (13,499,998 shares)

    1. Miss Chutima Anantachatri (1 share)

  6. Mr. Thanet Preuksomboon (1 share)

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(Translation)

3.2. Approval of the termination of or amendment to the Benefits Seeking Agreements

Apart from the Disposal of Shares and the Disposal of Investment Units, JAS also requested the Management Company to call a unitholders’ meeting of the Fund in order to consider and approve the proposed amendments to the Benefits Seeking Agreements as proposed by JAS in the Letter dated 4 July 2022 and the Letter dated 11 September 2022 as follows:

  • (a) the termination of, and amendment to, the following agreements:

  • (1) the termination of the Rental Assurance Agreement and the Marketing Services Agreement; and

  • (2) the amendment to the key terms of the Main Lease Agreement as follows:

    • (i) the term of the Main Lease Agreement shall be extended from 29 January 2032 to 31 December 2037 and the rental fee payable from 30 January 2032 to 31 December 2032 shall be THB 402.37 per core kilometre per month. The rental fee payable from 1 January 2033 to 31 December 2037 will be subject to annual review on every 1 January according to the consumer price index (CPI) published by the Ministry of Commerce; however, the rental fee will increase by no more than 3% (but no less than 0%) per annum each year;

    • (ii) the right of the Fund to renew the Main Lease Agreement shall be revoked; and

    • (iii) TTTBB agrees to pay the advance rental to the Fund in an amount of THB 3,000 million, payable in three instalments of THB 1,000 million per each instalment, as follows: (1) on the date that the proposed amendments to the Main Lease Agreement become effective (“ Effective Date ”); (2) the date falling one year from the Effective Date; and (3) the date falling two years from the Effective Date. The advance rental constitutes the rental payment for January of each year during the period from 2030 – 2031 for an amount of THB 300 million per month and the rental payment for January of each year during the period from 2031-2037 for an amount of THB 400 million per month (“ Advance Rental ”). However, if the rental which the Fund is entitled to receive for January of each such year exceeds the Advance Rental as mentioned above, TTTBB will pay the shortfall rental to the Fund when the rental payment for such month falls due according to the details as set out in the Main Lease Agreement.

The Advance Rental which TTTBB agrees to pay the Fund is subject to the conditions that (aaa) the unitholders’ meeting approves the details as set out under paragraph 3.2(a) above and paragraphs 3.2((b)(1) and (2) below and (bbb) the sales of shares and investment units between JAS and AWN is completed.

In addition, after the Fund receives such Advance Rental from TTTBB as proposed above, the Management Company plans to reduce the registered capital of the Fund in order to distribute such Advance Rental (either in whole or in part) to unitholders. The Management Company will need to obtain approval from unitholders’ meeting to amend the fund scheme before it can carry out such action.

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(Translation)

  • (b) the assignment of JAS’s rights and obligations under the Undertaking Agreement to AWN and/or any person designated by AWN and the amendment to the key terms of the Undertaking Agreement, as follows

  • (1) the cancellation of and amendment to the Fund’s right to terminate the Main Lease Agreement and the Rental Assurance Agreement if a transfer of the shares in TTTBB to the shareholders of TT & T Public Company Limited is required by court’s order;

  • (2) the cancellation of and amendment to certain negative pledges, including (a) the restriction which requires that the conduct of broadband internet services must be done by TTTBB and TTTI only and (b) the non-competition restriction;

  • (3) the cancellation of, and amendment to, the undertaking in relation to the maintenance of key financial ratios and the reserve account for rental payment in relation to the optical fibre cables;

  • (4) the cancellation of, and amendment to, the restriction on dividend payment of TTTBB in case of its failure to maintain the prescribed financial ratios.

  • (5) the cancellation of, and amendment to, any terms relating to Financial Indebtedness – Borrowings, etc. and Financial Indebtedness – Loans.

However, the lock-up undertaking (i.e. no transfer of investment units is permitted if such transfer will cause the Sponsor’s unitholding to be lower than the minimum threshold specified in the Undertaking Agreement) will remain unchanged.

4. Transaction size and total consideration value

The entry into the aforementioned transaction is the extension of the Main Lease Agreement between the Fund and TTTBB from the original expiry date on 29 January 2032 to 31 December 2037 and the Advance Rental payment from TTTBB to the Fund, which has the transaction size between THB 38,442,081,945 – 41,482,696,665, accounting for 43.58 – 47.03 % of the net asset value of the Fund as at 30 June 2022, which is THB 88,202,694,716.

Moreover, the Fund will terminate the Rental Assurance Agreement between the Fund and TTTBB in respect of the optic fibre cable in the amount of 196,100 core kilometers invested by the Fund on 11 February 2015 and the optic fibre cable in the amount of 140,000 core kilometers invested by the Fund on 20 November 2019 (based on the assumption that the transaction will be completed by 31 December 2022 and the Rental Assurance Agreement will be terminated on the same day). The size of this transaction is between THB 17,661,332,462 to 19,984,212,784, accounting for 20.02 – 22.66 % of the net asset value of the Fund as at 30 June 2022, which is THB 88,202,694,716.

5. Expected Benefits to the Fund and the Appropriateness of the Entry into the Related Party Transactions

The Management Company has expressed its view on the possible impacts of JAS’ proposals indicated in the Letter dated 4 July 2022 and the Letter dated 11 September 2022 and the above amendments to the Benefits Seeking Agreements on the Fund and unitholders in the notice for the EGM 1/2022. Therefore, the unitholders should carefully consider information in such notice.

6. Consideration in respect to the entry into Transactions

The Management Company has considered the proposed transactions referred to in paragraph 3 above and considered that the extraordinary general meeting of unitholders should be called to consider and approve all the above matters proposed by JAS.

5

(Translation)

7. Conditions for the Transaction

The termination of or amendment to the Benefits Seeking Agreements as set out under paragraphs 3.1 and 3.2 above constitutes a transaction between the Fund and its related parties, which relates to the entry into, amendment to or termination of those agreements regarding the management or seeking of interests and benefits derived from infrastructure assets worth no less than THB 20 million or 3% of the net asset value of the Fund as at the date of the entry into, amendment to or termination of those agreements, whichever is higher. As such, the above transaction must be approved by the unitholders’ meeting with no less than three-quarters of the total units in the Fund held by the unitholders who are present and eligible to vote, provided that quorum for that meeting requires the presence of at least 25 unitholders or half of the total unitholders, in each case, holding an aggregate of one-third (1/3) of the Fund’s total issued and outstanding units. A unitholder having a special interest in this transaction is not eligible to cast a vote in this transaction, but his/her presence and the Fund’s units held by that person can be counted towards a constitution of quorum required for the meeting.

As at 19 August 2022, the unitholder having a special interest in this transaction is:

Name Amount of units held Unitholding percentage
JAS 1,520,000,000 19.00%

8. Opinion of the Management Company on the entry into the Transaction

The Management Company deems it appropriate to hold the extraordinary general meeting of unitholders no. 1/2022 for considering the abovementioned agendas. The Management Company is in the process of studying the possible impacts of JAS’ proposals indicated in the Letter dated 4 July 2022 and the Letter dated 11 September 2022 and the above amendments to the Benefits Seeking Agreements on the Fund and unitholders and will inform the unitholders of such impacts in the notice for the EGM which will be further dispatched to the unitholders.

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Annex 2

Key Summary of the Proposed Amendments to the Agreements in relation to the Fund1

Conditions under the Original Agreements Proposed Amendments Relevant agenda of the EGM no.1/2022
1.
Main Lease Agreement
1.1.
The term of the lease of the main lease OFCs shall
terminate on the expiration of TTTBB’s Type 3
telecommunications license, which is January 29,
2032.
If TTTBB’s service income from broadband
internet (FTTX and xDSL) in 2030 is no less than
THB 40,000,000,000 and all relevant licences
held by TTTBB are renewed and all approvals
necessary for the extension of the term of the
Main Lease Agreement have been obtained, the
Fund has an option to extend the term of the Main
Lease Agreement for another 10 years from the
expiry date of the Main Lease Agreement (i.e. 29
January 2032).
The rental fee for such extended 10-year period
will start at THB 433.21 per core kilometre per
month(VAT excluded) (which equals to the		 To extend the term of the Main Lease Agreement to 31
December 2037 and fix the rental fee as follows:
(1)
for the period until 31 December 2019, at the rate
of THB 433.21 per core kilometre per month (VAT
excluded);
(2)
for the period from 1 January 2020 until 29 January
2032, the base rental shall be adjusted once a year
on 1 January according to the consumer price index
(CPI) published by the Ministry of Commerce;
however, the fee will increase by no more than 3%
(but no less than 0%) per annum each year;
(3)
for the period from 30 January 2032 until 31
December 2032, at the rate of THB 402.37 per core
kilometre per month (VAT excluded); and
(4)
for the period from 1 January 2033 until 31
December 2037, the rental fee shall be adjusted		 Agenda 1 and (if the unitholders’ meeting does
not approve Agenda 1) Agenda 2.2

1 This table only sets out the key summary of the amendments to the transaction documents and does not aim to specify any non-material or consequential amendments required as a result of the amendments to the material amendments, including the amendments to the OFCs Maintenance Agreement and the Assignment Agreement.

1

Conditions under the Original Agreements Proposed Amendments Relevant agenda of the EGM no.1/2022
rental fee under the Main Lease Agreement in
2 0 1 9 ) and will be adjusted once a year on 1
January according to the consumer price index
(CPI) published by the Ministry of Commerce;
however, the fee will increase by no more than 3%
(but no less than 0%) per annum each year.		 once a year on 1 January according to the consumer
price index (CPI) published by the Ministry of
Commerce; however, the fee will increase by no
more than 3% (but no less than 0%) per annum each
year.
In addition, AWN proposed to revoke the Fund’s option to
extend the term of the Main Lease Agreement for another
10 year in case where TTTBB’s service income from
broadband internet (FTTX and xDSL) in 2030 is no less
than THB 40,000,000,000 and all relevant licences held by
TTTBB are renewed and all approvals necessary for the
extension of the term of the Main Lease Agreement have
been obtained. However, if the Fund wishes to extend the
Main Lease Agreement after the expiry date, the Fund
shall notify TTTBB at least 36 months prior to the expiry
date. TTTBB shall have the right to decline such request
to extend the Main Lease Agreement.
1.2.
TTTBB may change or switch any main lease
OFCs with any second lease OFCs under the
conditions prescribed under the Main Lease
Agreement. For example,such changes or
switching shall not cause any damage to the
optical fiber cables and the ratio of the main lease
OFCs and the second lease OFCs must be in
accordance with the Main Lease Agreement.		 To remove in its entirety as a result of the proposed
termination of the Rental Assurance Agreement.		 Agenda 1 and (if the unitholders’ meeting does
not approve Agenda 1) Agenda 2.2

2

Conditions under the Original Agreements Proposed Amendments Relevant agenda of the EGM no.1/2022
1.3.
TTTBB shall be responsible for costs and
expenses in relation to the grounding of, and the
rentals of subduct of, (i) any initial main lease
OFCs (in which the Fund has invested upon the
establishment of the Fund) which is in excess of
80% of the estimated relocation expense, as
agreed between parties since the initial public
offering of the investment units in 2015 (which is
not part of the amount that TTTBB is responsible
under the Rental Assurance Agreement) and (ii)
the additional main lease OFCs (in which the
Fund has invested upon its capital increase in
2019), in full, until the expiry date of the Main
Lease Agreement.		 TTTBB will remain responsible for such costs and
expenses. However, the estimated relocation expense as
agreed between parties since the initial public offering of
the investment units in 2015 is an estimate for the period
until the original expiry date of the Main Lease Agreement
(i.e. January 29, 2032). Therefore, when the term of the
Main Lease Agreement is extended to December 31, 2037,
TTTBB will not be responsible for such costs and
expenses in relation to the initial main lease OFCs (in
which the Fund has invested upon the establishment of the
Fund) which are to be incurred for the period from January
30, 2032 until the new expiry date of the Main Lease
Agreement (i.e. December 31, 2037).		 Agenda 1 and (if the unitholders’ meeting does
not approve Agenda 1) Agenda 2.2
1.4.
No condition on additional advance rental
payment other than advance rental payment of
THB 816.51 million that TTTBB paid to JASIF at
the date on which the original assets sale has been
completed upon the establishment of the Fund		 AWN has made an additional proposal in relation to the
payment of advance rental under the Main Lease
Agreement, whereby TTTBB agrees to pay the advance
rental to the Fund in an amount of THB 3,000 million
(“Advance Rental”), payable in three instalments of THB
1,000 million per each instalment, as follows:
(1)
on the date of the proposed amendments to the
Main
Lease
Agreement
become
effective
(“Effective Date”);
(2)
the date falling one year from the Effective Date;
and		 Agenda 1 and (if the unitholders’ meeting does
not approve Agenda 1) Agenda 2.2

3

Conditions under the Original Agreements Proposed Amendments Relevant agenda of the EGM no.1/2022
(3)
the date falling two years from the Effective Date.
The advance rental constitutes the rental payment for
January of each year during the period from 2030 – 2031
for an amount of THB 300 million per month and the rental
payment for January of each year during the period from
2031-2037 for an amount of THB 400 million per month.
However, if the rental which the Fund is entitled to receive
for January of each such year exceeds the Advance Rental,
TTTBB will pay the shortfall rental to the Fund when the
rental payment for such month falls due, details as
specified under the Main Lease Agreement. TTTBB will
only pay the Advance Rental only if the following
conditions are satisfied:
(1)
the unitholders’ meeting of JASIF has approved the
following matters:
(i)
the assignment of JAS’s rights and
obligations
under
the
Undertaking
Agreement to AWN and/or any person
designated by AWN and the amendments to
the details of the non-competition provision
and other matters relating to the replacement
of JAS with AWN and/or any person
designated by AWN as the Sponsor under
the Undertaking Agreement; and
(ii)
the
amendment to the
Main
Lease
Agreement and the termination of the Rental
Assurance Agreement; and

4

Conditions under the Original Agreements Proposed Amendments Relevant agenda of the EGM no.1/2022
(2)
the disposal of shares and investment units is
completed.
In addition, after the Fund receives such Advance Rental
from TTTBB as proposed above, the Management
Company plans to reduce the registered capital of the Fund
in order to distribute such Advance Rental (either in whole
or in part) to unitholders. The Management Company will
need to obtain approval from unitholders’ meeting to
amend the fund scheme before it can carry out such action.
2. Rental Assurance Agreement
2.1 The purpose of the Rental Assurance Agreement
is to give an opportunity to the Fund, as the owner
of the second lease OFCs, to lease the second
lease OFCs to third party lessees, either in whole
or in part, which is in line with the NBTC’s policy
to
promote
the
shared
use
of
the
telecommunications infrastructure.
During the period in which there are no third party
lessees leasing the second lease OFCs from the
Fund, TTTBB agrees to lease such second lease
OFCs and make rental payments for such second
lease OFCs to the Fund in order to guarantee the
Fund’s rental revenue throughout the term of the
Rental Assurance Agreement.		 To terminate the Rental Assurance Agreement, resulting
in the Fund no longer receiving any rental payments under
the Rental Assurance Agreement.		 Agenda 1 and (if the unitholders’ meeting does
not approve Agenda 1) Agenda 2.2

5

Conditions under the Original Agreements Proposed Amendments Relevant agenda of the EGM no.1/2022
2.2
TTTBB is responsible for any relocation expenses
in relation to the grounding of, and the rentals of
subduct of, (i) any initial second lease OFCs (in
which the Fund has invested upon the
establishment of the Fund) which is in excess of
20% of the estimated relocation expense as agreed
between parties since the initial public offering of
the investment units in 2015 and (ii) the additional
second lease OFCs (in which the Fund has
invested upon its capital increase in 2019), in full,
until the expiry date of the Rental Assurance
Agreement.		 To terminate the Rental Assurance Agreement, resulting
in TTTBB not having to be responsible for any expenses
in relation to the grounding and the rentals of subduct of
any OFCs under the Rental Assurance Agreement because
such OFCs will be returned to the Fund for benefits
seeking.		 Agenda 1 and (if the unitholders’ meeting does
not approve Agenda 1) Agenda 2.2
3.
Marketing Service Agreement
The Fund cannot lease the OFCs to any person
who has not obtained the relevant license from the
NBTC; therefore, the Fund needs to appoint a
holder of telecommunications license to procure
the lessees for the Fund. The Marketing Service
Agreement is entered into for the purpose of
appointing TTTBB to procure third party lessees
in respect of the second lease OFCs, in whole or
in part, with the commission fee as specified in the
agreement.		 To terminate the Marketing Service Agreement. Agenda 1 and (if the unitholders’ meeting does
not approve Agenda 1) Agenda 2.2

6

Conditions under the Original Agreements Proposed Amendments Relevant agenda of the EGM no.1/2022
4.
Undertaking Agreement
4.1
JAS is the Sponsor		 The Sponsor will be changed from JAS to AWN. Agenda 1 and (if the unitholders’ meeting does
not approve Agenda 1) Agenda 2.1
4.2
If there is the final judgement of a competent court
requiring the Sponsor to transfer its shares in
TTTBB to any shareholder of TT&T Public
Company Limited which results in the Sponsor’s
shareholding in TTTBB and TTTI falling below
76% of the total issued shares in each of TTTBB
and TTTI, if, after taking into consideration the
factors
as
specified
in
the
Undertaking
Agreement, including the capabilities of the new
group of shareholder(s) (the shareholders of
TT&T Public Company Limited) and new
management team, policies and business plan of
the new group of shareholder(s) and the financial
status and operating results of the new group of
shareholder(s),
the
Management
Company
considers that it is likely that TTTBB or TTTI will
not be able to pay the rental under the Main Lease
Agreement and the Rental Assurance Agreement,
the Management Company reserves the right to
call for a meeting of the unitholders of the Fund
to
consider
terminating
the
Main
Lease
Agreement
and/or
the
Rental
Assurance		 To remove in its entirety. Agenda 1 and (if the unitholders’ meeting does
not approve Agenda 1) Agenda 2.1

7

Conditions under the Original Agreements Proposed Amendments Relevant agenda of the EGM no.1/2022
Agreement and to claim for damages under the
transaction documents.
4.3
TTTBB and TTTI is restricted from incurring any
financial indebtedness unless otherwise permitted
under the Undertaking Agreement, for example
any financial indebtedness which, (i) in aggregate
does not exceed THB12,000,000,000 (ii) is
subordinated to all claims by the Fund, (iii)
incurred between TTTI and TTTBB, (iv) incurred
with the prior written consent of the Fund, or (v)
arises under the relevant transaction document.		 To remove in its entirety. Agenda 1 and (if the unitholders’ meeting does
not approve Agenda 1) Agenda 2.3

8

Conditions under the Original Agreements Proposed Amendments Relevant agenda of the EGM no.1/2022
4.4
TTTBB and TTTI shall not make any loan or
provide any financial support to any person or
otherwise be a creditor, including giving any
guarantee or indemnity to or for the benefit of any
person or enter into any document under which
TTTBB or TTTI assumes any liability in respect
of any other person, except (a) any accounts
receivable incurred by TTTBB and TTTI in the
ordinary course of business and on an arm's length
basis, (b) a loan extended by and between TTTI
and TTTBB, (c) any guarantee by TTTBB or
TTTI in respect of any financial indebtedness of
TTTBB or TTTI, provided that the amount of
such guarantee, when aggregated with all other
financial indebtedness of TTTBB and TTTI shall
not exceed THB12,000,000,000, or (d) a
revolving loan extended by TTTBB to the
Sponsor and/or any subsidiary of the Sponsor
under a loan agreement which can be repaid and
redrawn by the Sponsor and/or such Subsidiary
provided that the subsidiaries of the Sponsor must
comply with the terms of the Undertaking
Agreement.		 To remove in its entirety. Agenda 1 and (if the unitholders’ meeting does
not approve Agenda 1) Agenda 2.3

9

Conditions under the Original Agreements Proposed Amendments Relevant agenda of the EGM no.1/2022
4.5 The Sponsor, TTTBB and TTTI will only conduct
its broadband business in Thailand through
TTTBB and TTTI only and not through any other
member of the Group, unless otherwise permitted
under the Undertaking Agreement.		 To remove in its entirety. Agenda 1 and (if the unitholders’ meeting does
not approve Agenda 1) Agenda 2.1
4.6 TTTBB is restricted from paying any dividends
unless otherwise provided for under the
Undertaking Agreement (including compliance
with the financial covenants ratios and no
occurrence of default).		 To remove in its entirety. Agenda 1 and (if the unitholders’ meeting does
not approve Agenda 1) Agenda 2.3
4.7 TTTBB, TTTI and the Sponsor (and the
subsidiary of the Sponsor) are restricted from
building, developing, installing, or laying down
any additional optical fiber cables or any other
telecommunications infrastructure assets (i) in a
manner that might, either directly or indirectly,
cause or allow or entice TTTBB to cease,
terminate or not renew any of the Main Lease
Agreement and the Rental Assurance Agreement
(in whole or in part); (ii) if such additional optical
fiber cables or any other telecommunications
infrastructure assets might, either directly or
indirectly, affect, compete with, replace or
reduce, the usage or the lease of the Fund’s assets
(in whole or in part) by TTTBB or TTTI; or (iii)
on any route overlapping with the route of optical
fiber cables of the Fund, unless:		 Given that it is necessary for AWN to operate optical fiber
cables for its mobile business as well as internet broadband
business which are its existing businesses, AWN request
that the non-competition restriction will only apply to
TTTBB and TTTI and not the Sponsor nor any company
within the Sponsor’s group.		 Agenda 1 and (if the unitholders’ meeting does
not approve Agenda 1) Agenda 2.1

10

Conditions under the Original Agreements Proposed Amendments Relevant agenda of the EGM no.1/2022

such route has reached no less than 80%
utilisation rate; and

TTTBB or TTTI has obtained a consent
from the Fund, provided that TTTBB or
TTTI must notify the Fund in writing
together with evidence showing that the
overlapping route has reached no less
than 80% utilisation rate. If the Fund
does not otherwise notify TTTBB within
30 Business Days after it has received the
notice from TTTBB or TTTI, the Fund
shall be deemed to have provided such
consent.
However, TTTBB and TTTI are permitted to
build, develop, install, or lay down additional
optical fiber cables without notifying or obtaining
a consent from the Fund and such operations shall
be deemed as non-competition to the Fund, if such
optical fiber cables:

are to expand their subscriber base, by
increasing coverage area to uncovered
potential customers or to maintain cable
redundancy
in
alternate
routes
in
accordance with the industry practice;

are from Distribution Point (DP)/Fiber
Access Terminal (FAT) to the residences
of customers of TTTBB or TTTI or last

11

Conditions under the Original Agreements Proposed Amendments Relevant agenda of the EGM no.1/2022
miles with no more than 2 cores in such
optical fiber cables;

do not have the same routes as the
existing optical fiber cables of the Fund;

support the upgrade of the technology
from DSL system to FTTX system; and

increase stability to the network to
provide quality service in order to ensure
continuity of data transmission, provided
that a report of such overlay is provided
to the Fund within 15 business days after
the end of each quarter,
provided that any such overlay, build, development
or installation must not have any adverse effect on
the usage or the lease of the Fund’s assets or on the
benefit of the Fund.
In addition, any overlay, build, development or
installation of any new optical fiber cables or other
telecommunication assets is permitted if the Fund
notifies TTTBB that it wishes to extend or renew the
Main Lease Agreement after its expiry date (i.e. 29
January 2032) and such notification is made at least
36 months before the expiry date but the Fund and
TTTBB cannot reach an agreement to extend or
renew the Main Lease Agreement within 12 months
after the commencement of such negotiation to
extend or renew such agreement.

12

Conditions under the Original Agreements Proposed Amendments Relevant agenda of the EGM no.1/2022
4.8
TTTBB must maintain the following financial
ratios:
(1)
total current liabilities not exceeding the
total equity;
(2)
total liabilities not exceeding two times
the total equity; and
(3)
the consolidated earnings of TTTBB
before all interest, taxes, depreciation,
amortisation and rentals in respect of the
OFCs for the then most recent four fiscal
quarters (“LTM EBITDAR”) to the
projected annual rentals for a period of the
next four fiscal quarters (“NTM Rental
Expenses”) not less than 1.25 (the
“Minimum Ratio”). If it appears that the
ratio of LTM EBITDAR to NTM Rental
Expenses is less than the Minimum Ratio
at the end of any particular quarter,
TTTBB must deposit into the rental
service reserve account an amount, which
causes the ratio of LTM EBITDAR to the
NTM Rental Expenses to be not less than
the Minimum Ratio.
The definitions and details for the calculations are
set out in the Undertaking Agreement.		 To remove in its entirety. Agenda 1 and (if the unitholders’ meeting does
not approve Agenda 1) Agenda 2.3

13

Conditions under the Original Agreements Proposed Amendments Relevant agenda of the EGM no.1/2022
5.
Escrow Account Agreement
TTTBB agrees to open and maintain the rental
service reserve account with Bangkok Bank in
order to ensure that the ratio of LTM EBITDAR
to NTM Rental Expenses complies with the terms
of the Undertaking Agreement.		 To terminate the Escrow Account Agreement. Agenda 1 and (if the unitholders’ meeting does
not approve Agenda 1) Agenda 2.3

14

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