Contract

Exhibit 10.1

Execution Version

Portions of this Exhibit have omitted because the information contained in such portions is both not material and would likely cause competitive harm to the registrant if publicly disclosed.  Such portions are indicated in the Exhibit by [ ].

US$100,000,000

FACILITY AGREEMENT

dated 22 January 2021

for

DIODES HONG KONG LIMITED

arranged by

THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED

with

THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED

acting as Agent

and

THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED

acting as Security Agent

KING & WOOD MALLESONS

Xxxxx 00

Xxxxxxxx Xxxxxxx Tower

0 Xxxxxx Xxxxx

Xxxxxx  XXX  0000

Xxxxxxxxx

T x00 0 0000 0000

F x00 0 0000 0000

DX 000 Xxxxxx

xxx.xxx.xxx

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CONTENTS
CLAUSE	PAGE

SECTION 1 INTERPRETATION 1

1. Definitions and Interpretation 1

SECTION 2 THE FACILITY 22

2. The Facility 22

3. Purpose 22

4. Conditions of Utilisation 23

SECTION 3 UTILISATION 24

5. Utilisation 24

SECTION 4 REPAYMENT, PREPAYMENT AND CANCELLATION 26

6. Repayment 26

7. Prepayment and Cancellation 27

SECTION 5 COSTS OF UTILISATION 31

8. Interest 31

9. Interest Periods 32

10. Changes to the Calculation of Interest 32

11. Fees 34

SECTION 6 ADDITIONAL PAYMENT OBLIGATIONS 36

12. Tax Gross-up and Indemnities 36

13. Increased Costs 40

14. Mitigation by the Lenders 41

15. Other Indemnities 42

16. Costs and Expenses 44

SECTION 8 REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT 46

17. Representations 46

18. Information Undertakings 51

19. Financial Covenants 54

20. General Undertakings 56

21. Events of Default 64

SECTION 9 CHANGES TO PARTIES 70

22. Changes to the Lenders 70

23. Changes to the Borrower 75

SECTION 10 THE FINANCE PARTIES 76

24. Role of the Administrative Parties and the Reference Banks 76

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25. Application of Proceeds 93

26. Sharing among the Finance Parties 95

SECTION 11 ADMINISTRATION 98

27. Payment Mechanics 98

28. Reserved 101

29. Notices 101

30. Calculations and Certificates 105

31. Partial Invalidity 105

32. Remedies and Waivers 105

33. Amendments and Waivers 106

34. Confidential Information 109

35. Confidentiality of Funding Rates and Reference Bank Quotations 113

36. Counterparts 115

SECTION 12 GOVERNING LAW AND ENFORCEMENT 116

37. Governing Law 116

38. Enforcement 116

39. Contractual recognition of Bail-In 116

Schedule 1 The Original Lenders 118

Schedule 2 Conditions Precedent 119

Schedule 3 Utilisation Request 121

Schedule 4 Form of Transfer Certificate 123

Schedule 5 Form of Assignment Agreement 126

Schedule 6 Form of Compliance Certificate 129

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THIS AGREEMENT is dated 22 January 2021 and made between:

(1) DIODES HONG KONG LIMITED, a company incorporated in Hong Kong with company number 1168572 whose registered office is at Xxxx 0000-0000, Xxxxxxxx Xxxxxx, 43-59 Queen’s Road East, Wanchai, Hong Kong (the "Borrower");

(2) THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED (the "Arranger");

(3) THE FINANCIAL INSTITUTIONS listed in Schedule 1 (The Original Lender) as lenders (each an "Original Lender");

(4) THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED as agent of the Finance Parties (other than itself) (the "Agent"); and

(5) THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED as security trustee for the Secured Parties (the "Security Agent").

IT IS AGREED as follows:

SECTION 1
INTERPRETATION

1. Definitions and Interpretation

1.1 Definitions

In this Agreement:

"Account" means an account for the supply of goods and/or services under a Contract of Sale including all rights to payment of any amount owing, whether present, future or contingent, by an Account Debtor for such supply and all related indemnity amounts, interest and charges (if any) relating to that account.

"Account Bank" means The Hongkong and Shanghai Banking Corporation Limited or any other bank approved by the Agent with whom a Security Account is maintained.

"Account Debtor" means any person obligated on an Account.

"Account Records" means any document evidencing a Contract of Sale, including (without limitation) any quotation, purchase order, invoice, sales acknowledgment, delivery note, completion certificate, books, accounts, computer and other records, evidence of remittances, any correspondence and any other documents relating to an Account that the Agent may designate an Account Record.

"Administrative Party" means each of the Agent, the Arranger and the Security Agent.

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"Affiliate" means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.

"Agent's Spot Rate of Exchange" means:

(a) the Agent's spot rate of exchange; or

(b) (if the Agent does not have an available spot rate of exchange) any publicly available spot rate of exchange selected by the Agent (acting reasonably),

for the purchase of the relevant currency with US Dollars in the London foreign exchange market at or about 11 a.m. London time on a particular day.

"Approved Valuer" means any person approved as such by the Agent (acting on the instructions of the Majority Lenders) as notified by the Agent in writing to the Borrower from time to time.

"Assigned Accounts" means each and every Account and associated asset, right, interest and property of the Borrower which is (or is expressed to be) the subject of any assignment under the Debenture.

"APLMA" means the Asia Pacific Loan Market Association Limited.

"Assignment Agreement" means an agreement substantially in the form set out in Schedule 5 (Form of Assignment Agreement) or any other form agreed between the relevant assignor, assignee and the Agent.

"Authorisation" means:

(a) an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation, lodgement or registration; or

(b) in relation to anything which will be fully or partly prohibited or restricted by law if a Governmental Agency intervenes or acts in any way within a specified period after lodgement, filing, registration or notification, the expiry of that period without intervention or action.

"Availability Period" means the period from and including the date of this Agreement to and including the date falling one month prior to the Final Repayment Date.

"Available Commitment" means a Lender's Commitment under the Facility minus:

(a) the amount of its participation in any outstanding Loans; and

(b) in relation to any proposed Utilisation, the amount of its participation in any Loans that are due to be made on or before the proposed Utilisation Date,

other than that Lender's participation in any Loans that are due to be repaid or prepaid on or before the proposed Utilisation Date.

"Available Facility" means, at any time, the lesser of:

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(a) the aggregate of each Lender's Available Commitment; and

(b) the Borrowing Base.

"Bail-In Action" means the exercise of any Write-down and Conversion Powers.

"Bail-In Legislation" means, in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time.

"Basel III" means:

(a) the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;

(b) the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and

(c) any regulation published by the Bank for International Settlements, the Basel Committee on Banking Supervision and any other Governmental Agency relating to “Basel III”.

"Borrowing Base" means, at any time, an amount equal to the Eligible Accounts Availability.

"Break Costs" means the amount (if any) by which:

(a) the interest which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;

exceeds:

(b) the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.

"Business Day" means a day (other than a Saturday or Sunday) on which banks are open for general business in New York, London and Hong Kong.

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"CFR" means Cost and Freight (as defined under the Incoterms).

"Code" means the US Internal Revenue Code of 1986.

"Commitment" means:

(a) in relation to an Original Lender, the amount set opposite its name under the heading "Commitment" in Schedule 1 (The Original Lender) and the amount of any other Commitment transferred to it under this Agreement; and

(b) in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement,

to the extent not cancelled, reduced or transferred by it under this Agreement.

"Compliance Certificate" means a certificate delivered pursuant to Clause 18.2 (Compliance Certificate) and signed by two directors of the Borrower substantially in the form set out in Schedule 6 (Form of Compliance Certificate).

"Confidential Information" means all information relating to the Borrower, the Parent, the Finance Documents or the Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or the Facility from either:

(a) the Borrower, the Parent, or any of their advisers; or

(b) another Finance Party, if the information was obtained by that Finance Party directly or indirectly from the Borrower, the Parent any of their advisers,

in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes:

(i) information that:

(A) is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 34 (Confidential Information);

(B) is identified in writing at the time of delivery as non-confidential by the Borrower, the Parent or any of their advisers; or

(C) is known by that Finance Party before the date the information is disclosed to it in accordance with paragraph (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Borrower or the Parent and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and

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(ii) any Funding Rate or Reference Bank Quotation.

"Confidentiality Undertaking" means a confidentiality undertaking substantially in a recommended form of the APLMA or in any other form agreed between the Borrower and the Agent.

"Consolidated Leverage Ratio" has the meaning given to that term in the Parent Credit Agreement, in the form of that agreement as at the date of this Agreement, and as reported in the applicable Parent Credit Agreement Compliance Certificate.

"Contract of Sale" means a contract for the supply of goods and/or the provision of services by the Borrower.

"Debenture" means the document entitled "Hong Kong Debenture" between the Borrower and the Security Agent dated on or about the date of this Agreement.

"Default" means an Event of Default or any event or circumstance specified in Clause 21 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.

"Delegate" means any delegate, agent, attorney or co-trustee appointed by the Security Agent.

"DHK Multi-Currency Account" means the following bank account of the Borrower:

Account Name:[              ]

Bank Name:[              ]

Account Number:[              ]

Swift Code:[              ]

Bank Address:[              ]

"Disruption Event" means either or both of:

(a) a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; and

(b) the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

(i) from performing its payment obligations under the Finance Documents; or

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(ii) from communicating with other Parties in accordance with the terms of the Finance Documents,

and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.

"Eligible Accounts" means, at any time, the Assigned Accounts which the Agent determines in its Permitted Discretion are eligible as the basis for the extension of the Facility.  Without limiting the Agent’s Permitted Discretion provided in this Agreement, Eligible Accounts shall not include any Account:

(a) which is not subject to a first priority perfected security interest in favour of the Security Agent;

(b) which is subject to any Security other than created under the Finance Documents;

(c) which is not a legally binding, valid and enforceable obligation of an Account Debtor;

(d) which is payable more than 120 days after the relevant invoice date;

(e) which is unpaid for more than 60 days from the due date under the relevant invoice;

(f) with respect to which any covenant, representation or warranty contained in a Finance Document has been breached or is not true in any material respect;

(g) which (i) does not arise from the sale of goods or performance of services in the ordinary course of business, (ii) is not evidenced by an invoice or other documentation satisfactory to the Agent (utilising its Permitted Discretion) which has been sent to the Account Debtor, (iii) is contingent upon the Borrower’s completion of any further performance, (iv) represents a sale on a xxxx-and-hold, guaranteed sale, sale-and-return, sale on approval, consignment, stock bailment, pay when paid or sold, cash-on-delivery or any other repurchase or return basis or (v) relates to payments of interest;

(h) (i) for which the goods giving rise to such Account have not been shipped to the Account Debtor or for which the services giving rise to such Account have not been performed by the Borrower or if such Account was invoiced more than once or (ii) for which the goods giving rise to such Account have been shipped to the Account Debtor by a shipment type other than CFR and such goods have not yet been received by the Account Debtor;

(i) with respect to which any check or other instrument of payment has been returned uncollected for any reason;

(j) which is owed by an Account Debtor in respect of which any of the events in Clauses 21.6 (Insolvency) to 21.8 (Creditors’ process) has occurred;

(k) which is owed by any Account Debtor which has sold all or substantially all of its assets;

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(l) which is owed in any currency other than USD, Hong Kong Dollars or any other currency agreed between the Borrower and the Agent;

(m) which is owed by any Affiliate of the Borrower or any employee, officer, director, agent or stockholder of the Borrower or any of its Affiliates;

(n) which is owed by an Account Debtor or any Affiliate of such Account Debtor to which the Borrower is indebted, but only to the extent of such indebtedness, or is subject to any security, deposit, progress payment, retainage or other similar advance made by or for the benefit of an Account Debtor, in each case to the extent thereof;

(o) which is subject to any rescission, counterclaim, deduction, defence (including the defence of usury), set-off or dispute other than statutory bankruptcy and insolvency defences, but only to the extent of any such counterclaim, deduction, defence, set-off or dispute;

(p) which is evidenced by any promissory note, chattel paper or instrument (other than banker’s acceptances or trade acceptances);

(q) which is owed by an Account Debtor which is a Restricted Party;

(r) with respect to which the Borrower has made any agreement with the Account Debtor for any reduction thereof, other than discounts and adjustments given in the ordinary course of business, or any Account which was partially paid and the Borrower created a new receivable for the unpaid portion of such Account;

(s) which does not comply in all material respects with the requirements of all applicable laws and regulations;

(t) which is for goods that have been sold under a purchase order or pursuant to the terms of a contract or other agreement or understanding (written or oral) that indicates or purports that any person other than the Borrower has or has had an ownership interest in such goods, or which indicates any party other than the Borrower as payee or remittance party;

(u) which was created on cash on delivery terms;

(v) which the Agent determines in its Permitted Discretion may not be paid by reason of the Account Debtor’s inability to pay; or

(w) which is owing by an Account Debtor and its Affiliates to the extent the aggregate amount of the Accounts owing from such Account Debtor and its Affiliates to the Borrower exceeds 20% of the aggregate amount owed on all Accounts.

In determining the amount of an Eligible Account, any amount in a currency other than USD is to be taken into account at its USD equivalent calculated using the Agent’s Spot Rate of Exchange, and the face amount of an Account may, in the Agent’s Permitted Discretion, be reduced by, without duplication, to the extent not reflected in such face amount, (i) the amount of all accrued and actual discounts,

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claims, credits or credits pending, promotional program allowances, price adjustments, finance charges or other allowances (including any amount that the Borrower may be obligated to rebate to an Account Debtor pursuant to the terms of any agreement or understanding (written or oral)), (ii) the aggregate amount of all cash received in respect of such Account but not yet applied by the Borrower to reduce the amount of such Account and (iii) the amount of any withholding tax or similar deductions in connection with the payment of such Account.  Standards of eligibility may be made more restrictive from time to time by the Agent in its Permitted Discretion, with any such changes to be effective four days after delivery of notice thereof to the Borrower and the Agent; provided that if failure to implement any such change within a shorter time period would, in the good faith judgment of the Agent, reasonably be expected to result in a Material Adverse Effect, such change may be implemented within a shorter time as determined by the Agent in its Permitted Discretion.

"Eligible Accounts Availability" means, at any time, the lower of:

(a) the amount equal to 85 per cent of the principal outstanding at that time of the Eligible Accounts; and

(b) the amount equal to 75 per cent of the principal outstanding at that time of all Accounts of the Borrower,

in each case, as determined by reference to the latest Monthly Report delivered by the Borrower and approved by the Agent.

"Environmental Claim" means any claim, proceeding or investigation by any person in respect of any Environmental Law.

"Environmental Law" means any applicable law in any jurisdiction in which the Borrower conducts business which relates to the pollution or protection of the environment or harm to or the protection of human health or the health of animals or plants.

"Environmental Permits" means any Authorisation and the filing of any notification, report or assessment required under any Environmental Law for the operation of the business of the Borrower conducted on or from the properties owned or used by the Borrower.

"EU Bail-In Legislation Schedule" means the document described as such and published by the Loan Market Association (or any successor person) from time to time.

"Event of Default" means any event or circumstance specified as such in Clause 21 (Events of Default).

"Facility" means the revolving loan facility made available under this Agreement as described in Clause 2 (The Facility).

"Facility Office" means the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less

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than five Business Days' written notice) as the office or offices through which it will perform its obligations under this Agreement.

"FATCA" means:

(a) sections 1471 to 1474 of the Code or any associated regulations;

(b) any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or

(c) any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraph (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.

"FATCA Application Date" means:

(a) in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; or

(b) in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraph (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA.

"FATCA Deduction" means a deduction or withholding from a payment under a Finance Document required by FATCA.

"FATCA Exempt Party" means a Party that is entitled to receive payments free from any FATCA Deduction.

"FATCA FFI" means a foreign financial institution as defined in section 1471(d)(4) of the Code.

"Fee Letter" means any letter or letters referring to this Agreement or the Facility between one or more Administrative Parties and the Borrower setting out any of the fees referred to in Clause 11 (Fees).

"Final Repayment Date" means the second anniversary of the date of this Agreement.

"Finance Document" means this Agreement, any Fee Letter, any Transaction Security Document, any Utilisation Request and any other document designated as such by the Agent and the Borrower.

"Finance Party" means an Administrative Party or a Lender.

"Financial Indebtedness" means any indebtedness for or in respect of:

(a) moneys borrowed;

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(b) any amount raised by acceptance under any acceptance credit facility;

(c) any bond, note, debenture, loan stock or other similar instrument;

(d) any redeemable preference share;

(e) any agreement treated as a finance or capital lease in accordance with GAAP;

(f) receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);

(g) the acquisition cost of any asset or service to the extent payable before or after its acquisition or possession by the party liable where the advance or deferred payment:

(i) is arranged primarily as a method of raising finance or of financing the acquisition of that asset or service or the construction of that asset or service; or

(ii) involves a period of more than six months before or after the date of acquisition or supply;

(h) any derivative transaction protecting against or benefiting from fluctuations in any rate or price (and, except for non-payment of an amount, the then xxxx-to-market value of the derivative transaction will be used to calculate its amount);

(i) any other transaction (including any forward sale or purchase agreement) which has the commercial effect of a borrowing (including without limitation any deferred consideration in connection with any acquisition);

(j) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and

(k) the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (j) above.

"FCPA" means the United States Foreign Corrupt Practices Act of 1977.

"Funding Rate" means any individual rate notified by a Lender to the Agent pursuant to paragraph (a)(ii) of Clause 10.4 (Cost of funds).

"GAAP" means generally accepted accounting principles in Hong Kong.

"Governmental Agency" means any government or any governmental agency, semi-governmental or judicial entity or authority (including any stock exchange or any self-regulatory organisation established under statute).

"HMT" means Her Majesty’s Treasury.

"Holding Company" means, in relation to a person, any other person in respect of which it is a Subsidiary.

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"HSBC Group" means HSBC Holdings plc together with its subsidiary undertakings and associated companies from time to time.

"Indirect Tax" means any goods and services tax, consumption tax, value added tax or any tax of a similar nature.

"Insolvent" in relation to a person, means the occurrence any of the events or proceedings set out in Clauses 21.6 (Insolvency), 21.7 (Insolvency proceedings) or 21.8 (Creditors’ process), or any analogous event or proceedings in any jurisdiction, in respect of that person.

"Interest Period" means, in relation to a Loan, each period determined in accordance with Clause 9 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 8.3 (Default interest).

"Interpolated Screen Rate" means, in relation to any Loan, the rate (rounded to four decimal places) which results from interpolating on a linear basis between:

(a) the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and

(b) the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,

each as of the Specified Time for the currency of that Loan.

"Legal Reservations" means:

(a) the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;

(b) the time barring of claims under the Limitation Ordinance (Cap. 347) of the Laws of Hong Kong, the possibility that an undertaking to assume liability for or indemnify a person against non-payment of stamp duty may be void and defences of set-off or counterclaim;

(c) the limitation of the enforcement of the terms of leases of real property by laws of general application to those leases;

(d) similar principles, rights and remedies under the laws of any Relevant Jurisdiction; and

(e) any other matters which are set out as qualifications or reservations as to matters of law of general application in any legal opinions supplied to the Agent as a condition precedent under this Agreement on or before the first Utilisation Date.

"Lender" means:

(a) an Original Lender; and

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(b) any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 22 (Changes to the Lenders),

which in each case has not ceased to be a Party as such in accordance with the terms of this Agreement.

"Letter of Comfort" means the letter of comfort dated on or about the date of this Agreement between the Parent and the Security Agent.

"LIBOR" means, in relation to any Loan:

(a) the applicable Screen Rate as of the Specified Time for the currency of that Loan and for a period equal in length to the Interest Period of that Loan; or

(b) as otherwise determined pursuant to Clause 10.1 (Unavailability of Screen Rate),

and if, in either case, that rate is less than zero, LIBOR shall be deemed to be zero.

"Loan" means a loan made or to be made under the Facility or the principal amount outstanding for the time being of that loan.

"London Business Day" means a day (other than a Saturday or Sunday) on which commercial banks are open for general business, including dealings in interbank deposits, in London.

"Majority Lenders" means a Lender or Lenders whose Commitments aggregate more than 66²/₃ per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 66²/₃ per cent. of the Total Commitments immediately prior to the reduction).

"Margin" means the percentage per annum set out below in the column opposite the Consolidated Leverage Ratio reported in the most recent Parent Credit Agreement Compliance Certificate delivered to the Agent:

Consolidated Leverage Ratio	Margin
Less than 1.50:1	1.25%
Greater than or equal to 1.50:1 but less than 2.00:1	1.50%
Greater than or equal to 2.00:1 but less than 2.50:1	1.75%
Greater than or equal to 2.50:1 but less than 3.00:1	2.00%
Greater than or equal to 3.00:1	2.25%

however, if:

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(a) following receipt by the Agent of a Parent Credit Agreement Compliance Certificate for any period that Parent Credit Agreement Compliance Certificate does not contain the necessary or appropriate figures to permit the calculation of the Consolidated Leverage Ratio;

(b) a Parent Credit Agreement Compliance Certificate is not provided to the Agent when due; or

(c) an Event of Default is continuing,

the Margin for the relevant Interest Period shall be the highest percentage per annum set out above.

"Material Adverse Effect" means a material adverse effect on:

(a) the business, operations, property, condition (financial or otherwise) or prospects of the Borrower;

(b) the ability of the Borrower to perform its obligations under the Finance Documents; or

(c) the validity or enforceability of, or the effectiveness or ranking of any Security over material assets granted or purported to be granted pursuant to, any of the Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents.

"Month" means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:

(a) (subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;

(b) if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and

(c) if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.

The above rules will only apply to the last Month of any period.

"Monthly Report" means a report substantially in a form which is acceptable to the Agent (acting on the instructions of the Majority Lenders), signed and certified as accurate by an authorised signatory of the Borrower, to be supplied by the Borrower in accordance with Clause 18.4 (Monthly Report).

"New Lender" has the meaning given to that term in Clause 22 (Changes to the Lenders).

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"OFAC" means the Office of Foreign Assets Control of the US Department of Treasury.

"Original Financial Statements" means the audited consolidated financial statements of the Borrower for the financial year ended 31 December 2020.

"Parent" means Diodes Incorporated.

"Parent Credit Agreement" means the second amended and restated credit agreement dated 29 May 2020 as amended, modified, amended and restated, and supplemented from time to time, between, among others, the Parent (as Domestic Borrower) and HSBC Bank USA, N.A. (as a Lender).

"Parent Credit Agreement Compliance Certificate" means each “Compliance Certificate” required to be provided by the Parent pursuant to paragraph (a) of section 6.02 (Certificates; Other Information) of the Parent Credit Agreement, in the form of that agreement as at the date of this Agreement.

"Party" means a party to this Agreement.

"Perfection Requirements" means the making or the procuring of filings, stampings, registrations, notarisations, endorsements, translations and/or notifications of any Finance Document (and/or any Security created under it) necessary for the validity, enforceability (as against the Borrower or any relevant third party) and/or perfection of that Finance Document.

"Permitted Discretion" means a determination made by the Agent (acting on the instructions of the Majority Lenders, acting in good faith and in the exercise of reasonable (from the perspective of a secured asset-based lender) business judgment).

"Quotation Day" means:

(a) in relation to any period for which an interest rate is to be determined two London Business Days before the first day of that period; or

(b) in relation to any Interest Period the duration of which is selected by the Agent pursuant to Clause 8.3 (Default interest), such date as may be determined by the Agent (acting reasonably).

"Receiver" means a receiver or receiver and manager or administrative receiver of the whole or any part of the Security Assets.

"Reference Bank Quotation" means any quotation supplied to the Agent by a Reference Bank.

"Reference Bank Rate" means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by the Reference Banks:

(a) if:

(i) the Reference Bank is a contributor to the applicable Screen Rate; and

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(ii) it consists of a single figure,

the rate (applied to the relevant Reference Bank and the relevant currency and period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator; or

(b) in any other case, the rate at which the relevant Reference Bank could fund itself in the relevant currency for the relevant period with reference to the unsecured wholesale funding market.

"Reference Banks" means the principal London offices of no less than two banks as may be appointed by the Agent in consultation with the Borrower.

"Related Fund", in relation to a fund (the "first fund"), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.

"Relevant Jurisdiction" means, in relation to the Borrower:

(a) its jurisdiction of incorporation;

(b) any jurisdiction where any asset subject to or intended to be subject to the Transaction Security to be created by it is situated;

(c) any jurisdiction where it conducts its business; and

(d) any jurisdiction whose laws govern the perfection of any of the Transaction Security Documents entered into by it.

"Relevant Market" means the London interbank market.

"Repeating Representations" means at any time the representations and warranties which are then made or deemed to be repeated under Clause 17.28 (Repetition) or any other Finance Document.

"Representative" means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.

"Resolution Authority" means any body which has authority to exercise any Write-down and Conversion Powers.

"Restricted Party" means a person that is:

(a) listed on, or owned or controlled by a person listed on, or acting on behalf of a person listed on, any Sanctions List;

(b) located in, incorporated under the laws of, or owned or (directly or indirectly) controlled by, or acting on behalf of, a person located in or organised under the

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laws of a country or territory that is the target of country-wide or territory-wide Sanctions; or

(c) otherwise a target of Sanctions ("target of Sanctions" signifying a person with whom a US person or other national of a Sanctions Authority would be prohibited or restricted by law from engaging in trade, business or other activities).

"Rollover Loan" means one or more Loans:

(a) made or to be made on the same day that a maturing Loan is due to be repaid;

(b) the aggregate amount of which is equal to or less than the amount of the maturing Loan;

(c) in the same currency as the maturing Loan; and

(d) made or to be made to the Borrower for the purpose of refinancing that maturing Loan.

"Sanctions" means the economic sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by:

(a) the United States government;

(b) the United Nations;

(c) the European Union;

(d) the United Kingdom; and

(e) the respective governmental institutions and agencies of any of the foregoing, including, without limitation, the Sanctions Authorities.

"Sanctions List" means the "Specially Designated Nationals and Blocked Persons" list maintained by OFAC, the Consolidated List of Financial Sanctions Targets and the Investment Ban List maintained by HMT, or any similar list maintained by, or public announcement of Sanctions designation made by, any of the Sanctions Authorities.

"Sanctions Authorities" means OFAC, the United States Department of State and HMT.

"Screen Rate" means the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed (before any correction, recalculation or republication by the administrator) on pages LIBOR01 or LIBOR02 of the Reuters screen (or any replacement Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Reuters.  If the relevant page is replaced or the

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service ceases to be available, the Agent (after consultation with the Borrower) may specify another page or service displaying the appropriate rate.

"Secured Liabilities" means all present and future obligations and liabilities (whether actual or contingent and whether owed jointly or severally or in any other capacity whatsoever) of the Borrower to any Secured Party under each Finance Document.

"Secured Party" means a Finance Party, a Receiver or any Delegate.

"Security" means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.

"Security Account" means the USD account established by the Account Bank, in the name of the Account Bank, for receipt of the proceeds of the Accounts, the details of which are advised to the Borrower and the Agent by the Account Bank from time to time.

"Security Account Opening Date" means the date falling three Months after the date of this Agreement.

"Security Agent's Spot Rate of Exchange" means:

(a) the Security Agent's spot rate of exchange; or

(b) (if the Security Agent does not have an available spot rate of exchange) any publicly available spot rate of exchange selected by the Security Agent (acting reasonably),

for the purchase of the relevant currency with US Dollars.

"Security Asset" means all of the assets which from time to time are, or are expressed to be, the subject of the Transaction Security.

"Security Property" means

(a) the Transaction Security expressed to be granted in favour of the Security Agent as trustee for the Secured Parties and all proceeds of that Transaction Security;

(b) all obligations expressed to be undertaken by the Borrower to pay amounts in respect of the Secured Liabilities to the Security Agent as trustee for the Secured Parties and secured by the Transaction Security, together with all representations and warranties expressed to be given by the Borrower in favour of the Security Agent as trustee for the Secured Parties; and

(c) any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Security Agent is required by the terms of the Finance Documents to hold as trustee on trust for the Secured Parties.

"Specified Time" means the Quotation Day as of 11:00 a.m. London time.

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"Subsidiary" means, in relation to any company or corporation, a company or corporation:

(a) which is controlled, directly or indirectly, by the first mentioned company or corporation;

(b) more than half the issued equity share capital of which is beneficially owned, directly or indirectly, by the first mentioned company or corporation; or

(c) which is a Subsidiary of another Subsidiary of the first mentioned company or corporation,

and, for this purpose, a company or corporation shall be treated as being controlled by another if that other company or corporation is able to direct its affairs and/or to control the composition of its board of directors or equivalent body.

"Tax" means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).

"Tax Deduction" has the meaning given to such term in Clause 12.1 (Tax definitions).

"Third Parties Legislation" means the Contracts (Rights of Third Parties) Ordinance (Cap. 623).

"Total Commitments" means at any time the aggregate of the Commitments (being US$100,000,000 at the date of this Agreement).

"Transaction Security" means the Security created or evidenced or expressed to be created or evidenced under the Transaction Security Documents.

"Transaction Security Document" means:

(a) the document listed as being a Transaction Security Document in paragraph 4(a) of Schedule 2 (Conditions Precedent);

(b) any other document evidencing or creating or expressed to evidence or create Security over any asset to secure any obligation of the Borrower to a Secured Party under the Finance Documents; or

(c) any other document designated as such by the Security Agent and the Borrower.

"Transfer Certificate" means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Agent and the Borrower.

"Transfer Date" means, in relation to an assignment or a transfer, the later of:

(a) the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and

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(b) the date on which the Agent executes the relevant Assignment Agreement or Transfer Certificate.

"UK Bribery Act" means the UK Xxxxxxx Xxx 0000.

"Unpaid Sum" means any sum due and payable but unpaid by the Borrower under the Finance Documents.

"US" means the United States of America.

"US Tax Obligor" means the Borrower if:

(a) it is resident for tax purposes in the US; or

(b) some or all of its payments under the Finance Documents are from sources within the US for US federal income tax purposes.

"Utilisation" means a utilisation of the Facility.

"Utilisation Date" means the date of a Utilisation, being the date on which the relevant Loan is to be made.

"Utilisation Request" means a notice substantially in the form set out in Schedule 3 (Utilisation Request).

"Write-down and Conversion Powers" means, in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule.

1.2 Construction

(a) Unless a contrary indication appears, any reference in this Agreement to:

(i) any "Administrative Party", the "Agent", the "Arranger", any "Finance Party", any "Lender", any "Party", any "Secured Party", the "Security Agent" or any other person shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents and in the case of the Security Agent, any person for the time being appointed as Security Agent or Security Agents in accordance with the Finance Documents;

(ii) "assets" includes present and future properties, revenues and rights of every description;

(iii) a "Finance Document" or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended or restated;

(iv) a "group of Lenders" or a "group of Finance Parties" includes all the Lenders or, as the case may be, all the Finance Parties;

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(v) "including" shall be construed as "including without limitation" (and cognate expressions shall be construed similarly);

(vi) "indebtedness" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

(vii) a Lender's "participation" in a Loan or Unpaid Sum includes an amount (in the currency of such Loan or Unpaid Sum) representing the fraction or portion (attributable to such Lender by virtue of the provisions of this Agreement) of the total amount of such Loan or Unpaid Sum and the Lender's rights under this Agreement in respect thereof;

(viii) a "person" includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);

(ix) a "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;

(x) a provision of law is a reference to that provision as amended or re-enacted from time to time; and

(xi) a time of day is a reference to Hong Kong time.

(b) The determination of the extent to which a rate is "for a period equal in length" to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.

(c) Section, Clause and Schedule headings are for ease of reference only.

(d) Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.

(e) A Default (other than an Event of Default) is "continuing" if it has not been remedied or waived and an Event of Default is "continuing" if it has not been waived.

(f) Where this Agreement specifies an amount in a given currency (the "specified currency") "or its equivalent", the "equivalent" is a reference to the amount of any other currency which, when converted into the specified currency utilising the Agent's spot rate of exchange (or, if the Agent does not have an available spot rate of exchange, any publicly available spot rate of exchange selected by the Agent (acting reasonably)) for the purchase of the specified

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currency with that other currency at or about 11 a.m. on the relevant date, is equal to the relevant amount in the specified currency.

1.3 Currency symbols and definitions

"US$" and "US dollars" denote the lawful currency of the US.

1.4 Third party rights

(a) Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has no right under the Third Parties Legislation to enforce or to enjoy the benefit of any term of this Agreement.

(b) Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.

(c) Any Receiver, Delegate or any person described in Clause 24.11 (Exclusion of liability), may, subject to this Clause 1.4 and the Third Parties Legislation, rely on any Clause of this Agreement which expressly confers rights on it.

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SECTION 2
THE FACILITY

2. The Facility

2.1 The Facility

Subject to the terms of this Agreement, the Lenders make available to the Borrower a US Dollar revolving loan facility in an aggregate amount equal to the Total Commitments.

2.2 Finance Parties' rights and obligations

(a) The obligations of each Finance Party under the Finance Documents are several.  Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents.  No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.

(b) The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from the Borrower is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by the Borrower which relates to a Finance Party's participation in the Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by the Borrower.

(c) A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.

3. Purpose

3.1 Purpose

The Borrower shall apply all amounts borrowed by it under the Facility towards:

(a) the repayment of any Financial Indebtedness; and/or

(b) financing its working capital requirements and its general corporate purposes.

The Borrower may, but shall not be obligated, to apply any amounts borrowed by it under the Facility toward the repayment of any Financial Indebtedness, and shall be entitled to apply any or all amounts so borrowed to finance its working capital requirements and its general corporate purposes without repaying any Financial Indebtedness.

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3.2 Monitoring

No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.

4. Conditions of Utilisation

4.1 Initial conditions precedent

(a) The Borrower may not deliver a Utilisation Request unless the Agent has received all of the documents listed in and appearing to comply with the requirements of Schedule 2 (Conditions Precedent).  The Agent shall notify the Borrower and the Lenders promptly upon being so satisfied.

(b) Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (a) above, the Lenders authorise (but do not require) the Agent to give that notification.  The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.

4.2 Further conditions precedent

The Lenders will only be obliged to comply with Clause 5.4 (Lenders' participation) if on the date of the Utilisation Request and on the proposed Utilisation Date:

(a) in the case of a Rollover Loan, no Event of Default is continuing or would result from the proposed Loan and, in the case of any other Loan, no Default is continuing or would result from the proposed Loan and none of the circumstances described in Clause 7.2 (Change of control) has occurred;

(b) the Repeating Representations to be made by the Borrower are true in all material respects;

(c) the Borrower has provided to the Agent the most recent Monthly Report required to be delivered under Clause 18.4 (Monthly Report); and

(d) after giving effect to the funding of the proposed Utilisation and any repayments of a Rollover Loan on the relevant Utilisation Date from the proceeds of the proposed Utilisation the aggregate amount outstanding under the Facility will not exceed the lesser of the Total Commitments and the Borrowing Base.

4.3 Maximum number of Loans

(a) The Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation four or more Loans would be outstanding.

(b) The Borrower may not request that a Loan be divided.

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SECTION 3
UTILISATION

5. Utilisation

5.1 Delivery of a Utilisation Request

The Borrower may utilise the Facility by delivery to the Agent of a duly completed Utilisation Request:

(a) on a Business Day; and

(b) not later than 11:00 a.m. three Business Days (or such shorter period as may be agreed by the Agent but in any event not less than two Business Days) before the proposed Utilisation Date.

5.2 Completion of a Utilisation Request

(a) Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:

(i) the proposed Utilisation Date is a Business Day within the Availability Period;

(ii) the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount);

(iii) the proposed first Interest Period complies with Clause 9 (Interest Periods); and

(iv) confirms that the proceeds of the Loan shall be funded to the DHK Multi-Currency Account.

(b) Only one Loan may be requested in each Utilisation Request.

5.3 Currency and amount

(a) The currency specified in a Utilisation Request must be US Dollars.

(b) The amount of the proposed Loan must be a minimum of US$500,000 or, if less, the Available Facility.

5.4 Lenders' participation

(a) If the conditions set out in Clause 4 (Conditions of Utilisation) and Clauses 5.1 (Delivery of a Utilisation Request) to 5.3 (Currency and amount) have been met, and subject to Clause  6(b) (Repayment), each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.

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(b) The amount of each Lender's participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.

(c) The Agent shall notify each Lender of the amount of each Loan, the amount of its participation in that Loan and, if different, the amount of that participation to be made available in accordance with Clause 27.1 (Payments to the Agent), in each case not later than noon two Business Days before the Utilisation Date.

5.5 Cancellation of Available Facility

The Commitments which, at that time, are unutilised shall be immediately cancelled at 5 p.m. on the last day of the Availability Period for the Facility.

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SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION

6. Repayment

(a) The Borrower shall repay each Loan drawn down on the last day of its Interest Period.

(b) Without prejudice to the Borrower's obligation under paragraph (a) above, if:

(i) one or more Loans are to be made available to the Borrower:

(A) on the same day that a maturing Loan is due to be repaid by the Borrower; and

(B) in whole or in part for the purpose of refinancing the maturing Loan; and

(ii) the proportion borne by each Lender's participation in the maturing Loan to the amount of that maturing Loan is the same as the proportion borne by that Lender's participation in the new Loans to the aggregate amount of those new Loans,

the aggregate amount of the new Loans shall, unless the Borrower notifies the Agent to the contrary in the relevant Utilisation Request, be treated as if applied in or towards repayment of the maturing Loan so that:

(A) if the amount of the maturing Loan exceeds the aggregate amount of the new Loans:

(1) the Borrower will only be required to make a payment under Clause 27.1 (Payments to the Agent) in an amount in the relevant currency equal to that excess; and

(2) each Lender's participation in the new Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation in the maturing Loan and that Lender will not be required to make a payment under Clause 27.1 (Payments to the Agent) in respect of its participation in the new Loans; and

(B) if the amount of the maturing Loan is equal to or less than the aggregate amount of the new Loans:

(1) the Borrower will not be required to make a payment under Clause 27.1 (Payments to the Agent); and

(2) each Lender will be required to make a payment under Clause 27.1 (Payments to the Agent) in respect of its participation in the new Loans only to the extent that its participation in the new Loans exceeds that Lender's

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participation in the maturing Loan and the remainder of that Lender's participation in the new Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation in the maturing Loan.

7. Prepayment and Cancellation

7.1 Illegality

If, at any time, it is or will become unlawful in any applicable jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Loan or it is or will become unlawful for any Affiliate of a Lender for that Lender to do so:

(a) that Lender shall promptly notify the Agent upon becoming aware of that event;

(b) upon the Agent notifying the Borrower, the Available Commitments of that Lender will be immediately cancelled; and

(c) to the extent that the Lender's participation has not been transferred pursuant to paragraph (a) of Clause 14.1 (Mitigation), the Borrower shall repay that Lender's participation in the Loans made to the Borrower on the last day of the Interest Period for each Loan occurring after the Agent has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender's corresponding Commitment(s) shall be immediately cancelled in the amount of the participations repaid.

7.2 Change of control

(a) If the Parent ceases to control the Borrower:

(i) the Borrower shall promptly notify the Agent upon becoming aware of that event;

(ii) a Lender shall not be obliged to fund a Utilisation (except for a Rollover Loan); and

(iii) if a Lender so requires and notifies the Agent within five days of the Borrower notifying the Agent of the event, the Agent shall, by not less than five days' notice to the Borrower, cancel each Available Commitment of that Lender and declare the participation of that Lender in all Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents in relation to that Lender's participation(s) immediately due and payable, whereupon each such Available Commitment will be immediately cancelled, any Commitment of that Lender shall immediately cease to be available for further utilisation and all such Loans, accrued interest and other amounts shall become immediately due and payable.

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(b) For the purpose of paragraph (a) above, "control" means the power to direct or the right to prevent (without positive consent), the exercise or implementation of the management and policies of any entity whether through the ownership of voting capital, by contract or otherwise.  

7.3 Voluntary cancellation

The Borrower may, if it gives the Agent not less than 30 Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of US$100,000) of the Available Facility.  Any cancellation under this Clause 7.3 shall reduce the Commitments of the Lenders rateably.

7.4 Voluntary prepayment

The Borrower may, if it gives the Agent not less than 15 Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of a Loan (but if in part, being an amount that reduces the amount of that Loan by a minimum amount of US$100,000).

7.5 Right of prepayment and cancellation in relation to a single Lender

(a) If:

(i) any sum payable to any Lender by the Borrower is required to be increased under paragraph (a) of Clause 12.2 (Tax gross-up); or

(ii) any Lender claims indemnification from the Borrower under Clause 12.3 (Tax indemnity) or Clause 13.1 (Increased Costs),

the Borrower may, whilst the circumstance giving rise to the requirement for that increase or indemnification continues, give the Agent notice of cancellation of the Commitment(s) of that Lender and its intention to procure the prepayment of that Lender's participation in the Loans.

(b) On receipt of a notice of cancellation referred to in paragraph (a) above, the Available Commitment(s) of that Lender shall be immediately reduced to zero.

(c) On the last day of each Interest Period which ends after the Borrower has given notice of cancellation under paragraph (a) above (or, if earlier, the date specified by the Borrower in that notice), the Borrower shall prepay that Lender's participation in the relevant Loan and that Lender's corresponding Commitment(s) shall be immediately cancelled in the amount of the participations repaid.

7.6 Not used

7.7 Mandatory prepayment – Borrowing Base

(a) If, upon the delivery of any Monthly Report under Clause 18.4 (Monthly Report), the Agent determines (acting on the instructions of the Majority Lenders) that the aggregate amount outstanding under the Facility exceeds the

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then Borrowing Base, in each case as at the date such Monthly Report was prepared (the “Excess Amount”), the Borrower must repay or prepay outstanding Loans in an aggregate amount at least equal to the Excess Amount within three (3) Business Days.

(b) No prepayment under paragraph (a) above shall result in any Commitments hereunder being permanently cancelled or reduced.

(c) Subject to the other terms of this Agreement, any amounts prepaid under paragraph (a) above may be re-utilised.

7.8 Mandatory prepayment – Security Account balances

The Agent may (but is not obliged to) apply all or any amounts in the Security Account at any time to repay or prepay all amounts outstanding under the Facility.

7.9 Restrictions

(a) Any notice of cancellation, prepayment or repayment given by any Party under this Clause 7 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation, prepayment or repayment is to be made and the amount of that cancellation, prepayment or repayment.

(b) Any prepayment or repayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.

(c) Unless a contrary indication appears in this Agreement, any part of the Facility which is repaid or prepaid may be reborrowed in accordance with the terms of this Agreement.

(d) The Borrower shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.

(e) No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

(f) If the Agent receives a notice under this Clause 7 it shall promptly forward a copy of that notice to either the Borrower or the affected Lender, as appropriate.

(g) If all or part of any Lender's participation in a Loan is repaid or prepaid and is not available for redrawing (other than by operation of Clause 4.2 (Further conditions precedent)), an amount of that Lender's Commitment (equal to the amount of the participation which is repaid or prepaid) will be deemed to be cancelled on the date of repayment or prepayment.  

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7.10 Application of prepayments

Any prepayment of a Loan pursuant to Clauses 7.4 (Voluntary prepayment), 7.7 (Mandatory prepayment – Borrowing Base) or 7.8 (Mandatory prepayment – Security Account balances) shall be applied pro rata to each Lender's participation in that Loan.

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SECTION 5
COSTS OF UTILISATION

8. Interest

8.1 Calculation of interest

The rate of interest on each Loan for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:

(a) Margin; and

(b) LIBOR.

8.2 Payment of interest

The Borrower shall pay accrued interest on each Loan on the last day of each Interest Period (and, if the Interest Period is longer than six Months, on the dates falling at six-monthly intervals after the first day of the Interest Period).

8.3 Default interest

(a) If the Borrower fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the Unpaid Sum from the due date to the date of actual payment (both before and after judgment) at a rate which is, subject to paragraph (b) below, four per cent. per annum higher than the rate which would have been payable if the Unpaid Sum had, during the period of non-payment, constituted a Loan in the currency of the Unpaid Sum for successive Interest Periods, each of a duration selected by the Agent (acting reasonably).  Any interest accruing under this Clause 8.3 shall be immediately payable by the Borrower on demand by the Agent.

(b) If any Unpaid Sum consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:

(i) the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and

(ii) the rate of interest applying to the Unpaid Sum during that first Interest Period shall be four per cent. per annum higher than the rate which would have applied if the Unpaid Sum had not become due.

(c) Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at the end of each Interest Period applicable to that Unpaid Sum but will remain immediately due and payable.

8.4 Notification of rates of interest

(a) The Agent shall promptly notify the relevant Lenders and the Borrower of the determination of a rate of interest under this Agreement.

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(b) The Agent shall promptly notify the Borrower of each Funding Rate relating to a Loan.

9. Interest Periods

9.1 Interest Periods

(a) Each Loan has one Interest Period only which shall start on the Utilisation Date of that Loan.

(b) Each Interest Period for a Loan will be one Month (or any other period, subject to availability, agreed by the Borrower and the Agent (acting on the instructions of all the Lenders)).

9.2 No overrunning

An Interest Period for a Loan shall not extend beyond the Final Repayment Date. If an Interest Period would otherwise overrun the Final Repayment Date, it will be shortened so that it ends on the Final Repayment Date.

9.3 Notification

The Agent shall promptly notify the Borrower and the Lenders of the duration of each Interest Period promptly after ascertaining its duration.

9.4 Non-Business Days

If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).

10. Changes to the Calculation of Interest

10.1 Unavailability of Screen Rate

(a) Interpolated Screen Rate:  If no Screen Rate is available for LIBOR for the Interest Period of a Loan, LIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of that Loan.

(b) Reference Bank Rate:  If no Screen Rate is available for LIBOR for:

(i) the currency of a Loan; or

(ii) the Interest Period of a Loan and it is not possible to calculate the Interpolated Screen Rate,

LIBOR shall be the Reference Bank Rate as of noon on the Quotation Day (London time) for the currency of that Loan and for a period equal in length to the Interest Period of that Loan.

(c) Cost of funds:  If paragraph (b) above applies but no Reference Bank Rate is available for the relevant currency or Interest Period there shall be no LIBOR

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for that Loan and Clause 10.4 (Cost of funds) shall apply to that Loan for that Interest Period.

10.2 Calculation of Reference Bank Rate

(a) Subject to paragraph (b) below, if LIBOR is to be determined on the basis of a Reference Bank Rate but a Reference Bank does not supply a quotation by noon on the Quotation Day (London time), the Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Reference Banks.

(b) If at or about noon London time on the Quotation Day none or only one of the Reference Banks supplies a quotation, there shall be no Reference Bank Rate for the relevant Interest Period.

10.3 Market disruption

If before 5 p.m. on the Business Day immediately following the Quotation Day for the relevant Interest Period, the Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 50 per cent. of that Loan) that the cost to it of funding its participation in that Loan from whatever source it may reasonably select would be in excess of LIBOR then Clause 10.4 (Cost of funds) shall apply to that Loan for the relevant Interest Period.

10.4 Cost of funds

(a) If this Clause 10.4 applies, the rate of interest on each Lender's share of the relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:

(i) the Margin; and

(ii) the rate notified to the Agent by that Lender as soon as practicable and in any event by 5 p.m. on the date falling two Business Days before the date on which interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Loan from whatever source it may reasonably select.

(b) If this Clause 10.4 applies and the Agent or the Borrower so requires, the Agent and the Borrower shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest.

(c) Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Borrower, be binding on all Parties.

(d) If this Clause 10.4 applies pursuant to Clause ‎10.3 (Market disruption) and:

(i) a Lender's Funding Rate is less than LIBOR; or

(ii) a Lender does not supply a quotation by the time specified in paragraph (a)(ii) above,

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the cost to that Lender of funding its participation in that Loan for that Interest Period shall be deemed, for the purposes of paragraph ‎(a) above, to be LIBOR.

10.5 Notification to Borrower

If Clause 10.4 (Cost of funds) applies the Agent shall, as soon as is practicable, notify the Borrower.

10.6 Break Costs

(a) The Borrower shall, within three Business Days of demand by a Finance Party and receipt of the certificate referred to in paragraph (b) below, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by the Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.

(b) Each Lender shall, as soon as reasonably practicable after a demand by the Agent or the Borrower, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.

11. Fees

11.1 Non-utilisation fee

(a) The Borrower shall pay to the Agent (for the account of each Lender) a non-utilisation fee (the “Non-utilisation Fee”) calculated and accruing on a daily basis, at the percentage per annum opposite the then applicable Consolidated Leverage Ratio set out below as reported in the most recent Parent Credit Agreement Compliance Certificate delivered to the Agent, on the undrawn and uncancelled amount of each Lender’s Commitment under the Facility (as at 5 p.m. on each day of the Availability Period (or, if any such day is not a Business Day, at 5 p.m. on the immediately preceding Business Day)), in respect of the period from and including the date of this Agreement to and including the last day of the Availability Period:

Consolidated Leverage Ratio	Non-utilisation Fee
Less than 1.50:1	0.15%
Greater than or equal to 1.50:1 but less than 2.00:1	0.20%
Greater than or equal to 2.00:1 but less than 2.50:1	0.25%
Greater than or equal to 2.50:1 but less than 3.00:1	0.325%
Greater than or equal to 3.00:1	0.35%

however, if:

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(i) following receipt by the Agent of a Parent Credit Agreement Compliance Certificate for any period that Parent Credit Agreement Compliance Certificate does not contain the necessary or appropriate figures to permit the calculation of the Consolidated Leverage Ratio;

(ii) a Parent Credit Agreement Compliance Certificate is not provided to the Agent when due; or

(iii) an Event of Default is continuing,

the Non-utilisation Fee for the relevant period shall be the highest percentage per annum set out above.

(b) The Borrower must pay the Non-utilisation Fee to the Agent (for the account of each Lender) quarterly in arrears and on the last day of the Availability Period.

(c) The Borrower must pay to the Agent (for the account of each Lender) the accrued Non-utilisation Fee for such Lender on the date that such Lender’s Commitment is cancelled in full.

(d) The Agent is entitled to deduct the Non-utilisation Fee from the DHK Multi-Currency Account.

(e) The Non-utilisation Fee shall not be refundable under any circumstance.

11.2 Arrangement fee

The Borrower shall pay to the Arranger an arrangement fee in the amount and at the times agreed in a Fee Letter.

11.3 Agency fee

The Borrower shall pay to the Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter.

11.4 Security agency fee

The Borrower shall pay to the Security Agent (for its own account) a security agency fee in the amount and at the times agreed in a Fee Letter.

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SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS

12. Tax Gross-up and Indemnities

12.1 Tax definitions

In this Clause 12:

"Tax Credit" means a credit against, relief or remission for, or repayment of any Tax.

"Tax Deduction" means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction.

"Tax Payment" means an increased payment made by the Borrower to a Finance Party under Clause 12.2 (Tax gross-up) or a payment under Clause 12.3 (Tax indemnity).

Unless a contrary indication appears, in this Clause 12 a reference to "determines" or "determined" means a determination made in the absolute discretion of the person making the determination.

12.2 Tax gross-up

(a) All payments to be made by the Borrower to any Finance Party under the Finance Documents shall be made free and clear of and without any Tax Deduction unless the Borrower is required to make a Tax Deduction, in which case the sum payable by the Borrower (in respect of which such Tax Deduction is required to be made) shall be increased to the extent necessary to ensure that such Finance Party receives a sum net of any deduction or withholding equal to the sum which it would have received had no such Tax Deduction been made or required to be made.

(b) The Borrower shall promptly upon becoming aware that it must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly.  Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender.  If the Agent receives such notification from a Lender it shall notify the Borrower.

(c) If the Borrower is required to make a Tax Deduction, it shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

(d) Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Borrower shall deliver to the Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment has been paid to the relevant taxing authority.

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12.3 Tax indemnity

(a) Without prejudice to Clause 12.2 (Tax gross-up), if any Finance Party is required to make any payment of or on account of Tax on or in relation to any sum received or receivable under the Finance Documents (including any sum deemed for the purposes of Tax to be received or receivable by such Finance Party whether or not actually received or receivable) or if any liability in respect of any such payment is asserted, imposed, levied or assessed against any Finance Party, the Borrower shall, within three Business Days of demand of the Agent, promptly indemnify the Finance Party which suffers a loss or liability as a result against such payment or liability, together with any interest, penalties, costs and expenses payable or incurred in connection therewith, provided that this Clause 12.3 shall not apply to:

(i) any Tax imposed on and calculated by reference to the net income actually received or receivable by such Finance Party (but, for the avoidance of doubt, not including any sum deemed for the purposes of Tax to be received or receivable by such Finance Party but not actually receivable) by the jurisdiction in which such Finance Party is incorporated;

(ii) any Tax imposed on and calculated by reference to the net income of the Facility Office of such Finance Party actually received or receivable by such Finance Party (but, for the avoidance of doubt, not including any sum deemed for the purposes of Tax to be received or receivable by such Finance Party but not actually receivable) by the jurisdiction in which its Facility Office is located; or

(iii) a FATCA Deduction required to be made by a Party.

(b) A Finance Party intending to make a claim under paragraph (a) above shall notify the Agent of the event giving rise to the claim, whereupon the Agent shall notify the Borrower thereof.

(c) A Finance Party shall, on receiving a payment from the Borrower under this Clause 12.3, notify the Agent.

12.4 Tax Credit

If the Borrower makes a Tax Payment and the relevant Finance Party determines that:

(a) a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and

(b) that Finance Party has obtained and utilised that Tax Credit,

the Finance Party shall pay an amount to the Borrower which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Borrower.

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12.5 Stamp taxes

The Borrower shall:

(a) pay all stamp duty, registration and other similar Taxes payable in respect of any Finance Document; and

(b) within three Business Days of demand, indemnify each Secured Party against any cost, loss or liability that Secured Party incurs in relation to any stamp duty, registration or other similar Tax paid or payable in respect of any Finance Document.

12.6 Indirect Tax

(a) All amounts set out or expressed in a Finance Document to be payable by any Party to a Finance Party shall be deemed to be exclusive of any Indirect Tax.  If any Indirect Tax is chargeable on any supply made by any Finance Party to any Party in connection with a Finance Document, that Party shall pay to the Finance Party (in addition to and at the same time as paying the consideration) an amount equal to the amount of the Indirect Tax.

(b) Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any costs or expenses, that Party shall also at the same time pay and indemnify the Finance Party against all Indirect Tax incurred by that Finance Party in respect of the costs or expenses to the extent that the Finance Party reasonably determines that it is not entitled to credit or repayment in respect of the Indirect Tax.

12.7 FATCA information

(a) Subject to paragraph (c) below, each Party shall, within 10 Business Days of a reasonable request by another Party:

(i) confirm to that other Party whether it is:

(A) a FATCA Exempt Party; or

(B) not a FATCA Exempt Party;

(ii) supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and

(iii) supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation, or exchange of information regime.

(b) If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or

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has ceased to be a FATCA Exempt Party, that Party shall notify that other Party as soon as reasonably practicable.

(c) Paragraph (a) above shall not oblige any Finance Party to do anything, and paragraph (a)(iii) above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:

(i) any law or regulation;

(ii) any fiduciary duty; or

(iii) any duty of confidentiality.

(d) If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (a)(ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.

(e) If the Borrower is a US Tax Obligor or the Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within 10 Business Days of:

(i) where the Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the date of this Agreement;

(ii) where the Borrower is a US Tax Obligor on a date on which any other Lender becomes a Party as a Lender, that date;

(iii) where the Borrower is not a US Tax Obligor, the date of a request from the Agent,  

supply to the Agent:

(A) a withholding certificate on Form W-8, Form W-9 or any other relevant form; or

(B) any withholding statement or other document, authorisation or waiver as the Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.

(f) The Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) above to the Borrower.

(g) If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Agent by a Lender pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding

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statement, document, authorisation or waiver to the Agent unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Agent). The Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the relevant Borrower.

(h) The Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) or (g) above without further verification. The Agent shall not be liable for any action taken by it under or in connection with paragraph (e), (f) or (g) above.

12.8 FATCA Deduction

(a) Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

(b) Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Borrower and the Agent and the Agent shall notify the other Finance Parties.

13. Increased Costs

13.1 Increased Costs

(a) Subject to Clause 13.3 (Exceptions) the Borrower shall, within three Business Days of receipt of written demand by the Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation, (ii) compliance with any law or regulation made after the date of this Agreement or compliance with Basel III, CRD IV or the United States Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (including any regulations relating to them).  The terms "law" and "regulation" in this paragraph (a) shall include any law or regulation concerning capital adequacy, prudential limits, liquidity, reserve assets or Tax.

(b) In this Agreement, "Increased Costs" means:

(i) a reduction in the rate of return from the Facility or on a Finance Party's (or its Affiliate's) overall capital (including as a result of any reduction in the rate of return on capital brought about by more capital being required to be allocated by such Finance Party);

(ii) an additional or increased cost; or

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(iii) a reduction of any amount due and payable under any Finance Document,

which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to the undertaking, funding or performance by such Finance Party of any of its obligations under any Finance Document or any participation of such Finance Party in any Loan or Unpaid Sum.

13.2 Increased Cost claims

(a) A Finance Party (other than the Agent) intending to make a claim pursuant to Clause 13.1 (Increased Costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Borrower.

(b) Each Finance Party (other than the Agent) shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs.

13.3 Exceptions

Clause 13.1 (Increased Costs) does not apply to the extent any Increased Cost is:

(a) compensated for under another Clause or would have been but for an exception to that Clause;

(b) attributable to a FATCA Deduction required to be made by a Party; or

(c) attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation.

14. Mitigation by the Lenders

14.1 Mitigation

(a) Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 12 (Tax Gross-up and Indemnities) or Clause 13 (Increased Costs), including in relation to any circumstances which arise following the date of this Agreement, transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.

(b) Paragraph (a) above does not in any way limit the obligations of the Borrower under the Finance Documents.

14.2 Limitation of liability

(a) The Borrower shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 14.1 (Mitigation).

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(b) A Finance Party is not obliged to take any steps under Clause 14.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

14.3 Conduct of business by the Finance Parties

No provision of this Agreement will:

(a) interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;

(b) oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or

(c) oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.

15. Other Indemnities

15.1 Currency indemnity

(a) If any sum due from the Borrower under the Finance Documents (a "Sum"), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the "First Currency") in which that Sum is payable into another currency (the "Second Currency") for the purpose of:

(i) making or filing a claim or proof against the Borrower; or

(ii) obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,

the Borrower shall as an independent obligation, within three Business Days of demand, indemnify each Secured Party to whom that Sum is due against any cost, loss or liability reasonably incurred and arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.

(b) The Borrower waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.

15.2 Other indemnities

The Borrower shall, within three Business Days of demand, indemnify each Secured Party against any cost, loss or liability incurred by that Secured Party as a result of:

(a) the occurrence of any Event of Default;

(b) any information produced or approved by the Borrower being or being alleged to be misleading and/or deceptive in any respect;

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(c) any enquiry, investigation, subpoena (or similar order) or litigation with respect to the Borrower or with respect to the transactions contemplated or financed or secured under any Finance Document;

(d) a failure by the Borrower to pay any amount due under a Finance Document on its due date or in the relevant currency, including any cost, loss or liability arising as a result of Clause 26 (Sharing among the Finance Parties);

(e) funding, or making arrangements to fund, its participation in a Loan requested by the Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone);

(f) a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower; or

(g) any reasonable action taken by a Secured Party in connection with the fulfilment of any anti-money laundering laws and regulations, counter-terrorist financing laws and regulations or other similar laws and regulations due to the contravention of such laws and regulations by the Borrower in relation to the monies under this Agreement.

15.3 Indemnity to the Agent

The Borrower shall promptly indemnify the Agent against any cost, loss or liability incurred by the Agent (acting reasonably) as a result of:

(a) investigating any event which it reasonably believes is a Default;

(b) acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or

(c) instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement.

15.4 Indemnity to the Security Agent

(a) The Borrower shall promptly indemnify the Security Agent and every Receiver and Delegate against any cost, loss or liability incurred by any of them as a result of:

(i) any failure by the Borrower to comply with obligations under Clause ‎16 (Costs and Expenses);

(ii) acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;

(iii) investigating any event which it reasonably believes is a Default;

(iv) the taking, holding, protection or enforcement of the Transaction Security;

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(v) the exercise of any of the rights, powers, discretions and remedies vested in the Security Agent and each Receiver and Delegate by the Finance Documents or by law;

(vi) any default by the Borrower in the performance of any of the obligations expressed to be assumed by it in the Finance Documents;

(vii) instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement; or

(viii) acting as Security Agent, Receiver or Delegate under the Finance Documents or which otherwise relates to any of the Security Property or the performance of the terms of the Finance Documents (otherwise, in each case, than as a direct result of the relevant Security Agent's, Receiver's or Delegate's gross negligence or wilful misconduct).

(b) The Security Agent and every Receiver and Delegate may, in priority to any payment to the Secured Parties, indemnify itself out of the Security Property in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 15.4 and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all moneys payable to it.

16. Costs and Expenses

16.1 Transaction expenses

The Borrower shall, within three Business Days of demand, pay the Administrative Parties the amount of all pre-agreed costs and expenses (including legal fees) reasonably incurred by any of them (and, in the case of the Security Agent, by any Receiver or Delegate) in connection with the negotiation, preparation, printing, execution, syndication and perfection of:

(a) this Agreement and any other documents referred to in this Agreement or in a Transaction Security Document; and

(b) any other Finance Documents executed after the date of this Agreement.

16.2 Amendment costs

If:

(a) the Borrower requests an amendment, waiver or consent; or

(b) an amendment is required pursuant to Clause 27.9 (Change of currency),

the Borrower shall, within three Business Days of demand, reimburse each of the Agent and the Security Agent for the amount of all costs and expenses (including legal fees) (which in the case of paragraph (a) above, must be pre-agreed) reasonably incurred by the Agent or the Security Agent (and, in the case of the Security Agent, by any Receiver or Delegate) in responding to, evaluating, negotiating or complying with that request or requirement.

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16.3 Enforcement and preservation costs

The Borrower shall, within three Business Days of demand, pay to each Secured Party the amount of all costs and expenses (including legal fees) incurred by that Secured Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document and the Transaction Security and any proceedings instituted by or against that Secured Party as a consequence of it entering into a Finance Document, taking or holding the Transaction Security, or enforcing those rights.

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SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT

17. Representations

The Borrower makes the representations and warranties set out in this Clause 17 to each Finance Party on the date of this Agreement.

17.1 Status

(a) It is a corporation, duly incorporated and validly existing under the laws of its jurisdiction of incorporation.

(b) It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.

(c) It is not a FATCA FFI or a US Tax Obligor.

17.2 Binding obligations

Subject to the Legal Reservations:

(a) the obligations expressed to be assumed by it in each Finance Document are legal, valid, binding and enforceable obligations; and

(b) without limiting the generality of paragraph (a) above, each Transaction Security Document to which it is a party creates the security interests which that Transaction Security Document purports to create and those security interests are valid and effective.

17.3 Non-conflict with other obligations

The entry into and performance by it of, and the transactions contemplated by, the Finance Documents and the granting of the Transaction Security do not and will not conflict with:

(a) any law or regulation applicable to it;

(b) its or any of its Subsidiaries' constitutional documents; or

(c) any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries' assets.

17.4 Power and authority

(a) It has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Finance Documents to which it is a party and the transactions contemplated by those Finance Documents.

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(b) No limit on its powers will be exceeded as a result of the borrowing, grant of security or giving of guarantees or indemnities contemplated by the Finance Documents to which it is a party.

17.5 Validity and admissibility in evidence

Except for registration of the Transaction Security Documents in accordance with Clause 17.6 (Registration requirements), all Authorisations required or desirable:

(a) to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party;

(b) to make the Finance Documents to which it is a party admissible in evidence in its Relevant Jurisdictions; and

(c) for it and its Subsidiaries to carry on its business, and which are material,

have been obtained or effected and are in full force and effect.

17.6 Registration requirements

Except for registration of the Debenture with the Hong Kong Companies Registry, it is not necessary to file, register or record any Finance Document in any public place or elsewhere.

17.7 Governing law and enforcement

(a) Subject to the Legal Reservations, the choice of the governing law of the Finance Documents will be recognised and enforced in its Relevant Jurisdictions.

(b) Subject to the Legal Reservations, any judgment obtained in relation to a Finance Document in the jurisdiction of the governing law of that Finance Document will be recognised and enforced in its Relevant Jurisdictions.

17.8 Deduction of Tax

It is not required under the law applicable where it is incorporated or resident or at the address specified in this Agreement to make any Tax Deduction from any payment it may make under any Finance Document.

17.9 No filing or stamp taxes

Except for registration fees associated with the registration of the Transaction Security Documents in accordance with Clause 17.6 (Registration requirements), it is not necessary under the laws of its Relevant Jurisdictions that the Finance Documents be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration or similar tax be paid on or in relation to the Finance Documents or the transactions contemplated by the Finance Documents.

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17.10 No default

(a) No Event of Default is continuing or would result from the making of any Utilisation.

(b) No other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on it or any of its Subsidiaries or to which its (or any of its Subsidiaries') assets are subject which is reasonably likely to have a Material Adverse Effect.

17.11 No misleading information

All information supplied by it to any Finance Party was true, complete and accurate in all material respects as at the date it was given and was not misleading in any respect.  

17.12 Financial statements

(a) Its audited financial statements most recently supplied to the Agent (which, at the date of this Agreement, are its Original Financial Statements) were prepared in accordance with GAAP consistently applied save to the extent expressly disclosed in such financial statements.

(b) Its financial statements most recently supplied to the Agent (which, at the date of this Agreement, are its Original Financial Statements) give a true and fair view of (if audited) or fairly represent (if unaudited of its financial condition and operations) for the period to which they relate, save to the extent expressly disclosed in such financial statements.

(c) There has been no material adverse change in its business or financial condition since the date to which Original Financial Statements were drawn up.

17.13 Pari passu ranking

Its payment obligations under the Finance Documents rank at least pari passu with the claims of all of its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.

17.14 No proceedings

(a) No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency which, if adversely determined, is reasonably likely to have a Material Adverse Effect has or have (to the best of its knowledge and belief) been started or threatened against it or any of its Subsidiaries.

(b) No judgment or order of a court, arbitral body or agency which might reasonably be expected to have a Material Adverse Effect has (to the best of its knowledge and belief) been made against it or any of its Subsidiaries.

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17.15 Authorised signatories

Any person specified as its authorised signatory under Schedule 2 (Conditions Precedent) or paragraph (f) of Clause 18.5 (Information: miscellaneous) is authorised to sign Utilisation Requests and other notices on its behalf.

17.16 Ranking of Security

Subject to the Legal Reservations and Perfection Requirements, the Transaction Security has or will have first ranking priority and is not subject to any prior ranking or pari passu ranking Security.

17.17 Good title to assets

It and each of its Subsidiaries has a good, valid and marketable title to, or valid leases or licences of, and all appropriate Authorisations to use, the assets necessary to carry on its business as presently conducted.

17.18 Ownership

(a) The Borrower’s entire issued share capital is wholly but indirectly owned and controlled by the Parent.

(b) The shares in the capital of the Borrower are fully paid and are not subject to any option to purchase or similar rights.  The shares in the capital of the Borrower are pledged to secure certain obligations under the Parent Credit Agreement.

17.19 Legal and beneficial ownership

It and each of its Subsidiaries is the sole legal and beneficial owner of the respective assets over which it purports to grant Security free from all Security, except for the Security created under the Transaction Security Documents or expressly permitted by this Agreement.

17.20 Solvency

It is not Insolvent.

17.21 No breach of laws

(a) It has not (and none of its Subsidiaries has) breached any law or regulation which breach has or is reasonably likely to have a Material Adverse Effect.

(b) No labour disputes are current or, to the best of its knowledge and belief (having made due and careful enquiry), threatened against it or its Subsidiaries which have or are reasonably likely to have a Material Adverse Effect.

17.22 Environmental laws

(a) The Borrower is in compliance with Clause 20.7 (Environmental compliance) and no circumstances have occurred which would prevent such compliance in

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each case where non-compliance could reasonably be expected to have a Material Adverse Effect.

(b) No Environmental Claim has been commenced or (to the best of its knowledge and belief (having made due and careful enquiry) is threatened against it where such Environmental Claim is likely to be determined against it and, if so determined, would reasonably be expected to have a Material Adverse Effect.

17.23 Payment of taxes

(a) It is not (and none of its Subsidiaries is) materially overdue in the filing of any Tax returns and it is not (and none of its Subsidiaries is) overdue in the payment of any amount in respect of Tax

(b) No claims or investigations are being, or are reasonably likely to be, made or conducted against it (or any of its Subsidiaries) with respect to Taxes.

17.24 Immunity

(a) The entry into by it of each Finance Document constitutes, and the exercise by it of its rights and performance of its obligations under each Finance Document will constitute, private and commercial acts performed for private and commercial purposes.

(b) It will not be entitled to claim immunity from suit, execution, attachment or other legal process in any proceedings taken in its jurisdiction of incorporation in relation to any Finance Document.

17.25 Anti-corruption and anti-money laundering laws

(a) None of the Borrower nor, to the knowledge of the Borrower, any director, officer, agent, employee, Affiliate or other person acting on behalf of the Borrower or any of its Subsidiaries is aware of, or has taken, any action, directly or indirectly, that would result in any violation by such person of any applicable anti-bribery law, including but not limited to the UK Bribery Act, the FCPA or other similar legislation in any jurisdiction. Furthermore, the Borrower and, to the knowledge of the Borrower, its Affiliates have conducted their businesses in compliance with the UK Bribery Act, the FCPA and similar laws, rules or regulations and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith. No part of the proceeds of the Facility will be used, directly or indirectly, for any payments that could constitute a violation of any applicable anti-bribery law.

(b) The operations of the Borrower and the Parent are and have been conducted at all times in material compliance with applicable financial record keeping and reporting requirements, anti-corruption laws and anti-money laundering laws, including all relevant regulations, rules and guidelines in its jurisdiction and in each other jurisdiction in which such entity conducts business or has assets. No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Borrower or the Parent, in

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each case, with respect to any anti-money laundering laws is pending or, to the best of the Borrower’s knowledge, threatened.

17.26 Sanctions

Neither the Borrower nor the Parent nor any directors, officers or, to the best of the Borrower’s knowledge (after due and careful inquiry), employees, agents or Affiliates of any or all of the foregoing and none of the persons acting on behalf of any or all of the foregoing:

(a) is a Restricted Party; or

(b) has received notice of or is aware of any claim, action, suit, proceeding or investigation against it with respect to Sanctions by any Sanctions Authority.

17.27 Monthly Report

(a) All Accounts referred to in a Monthly Report are Eligible Accounts.

(b) The Borrower is, with full title guarantee, the owner of all Accounts referred to in a Monthly Report as Eligible Accounts.

17.28 Repetition

The representations and warranties in this Clause are deemed to be made by the Borrower by reference to the facts and circumstances then existing on the date of each Utilisation Request and the first day of each Interest Period.

18. Information Undertakings

The undertakings in this Clause 18 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.

18.1 Financial statements

(a) The Borrower shall supply to the Agent for communication by the Agent to the Lenders:

(i) as soon as the same become available, but in any event within 180 days after the end of each of its financial years its audited financial statements for that financial year; and

(ii) as soon as the same become available, but in any event within 90 days after the end of each of its financial quarters its unaudited financial statements (which may be management accounts) for that financial quarter (and, where the financial quarter is also the end of its financial half year, that financial half year).

(b) If at any time the financial statements of the Parent required to be provided pursuant to paragraphs (a) and (b) of section 6.01 (Financial Statements) of the Parent Credit Agreement are no longer publicly available, the Borrower shall

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provide, or procure that the Parent provides, those financial statements to the Agent promptly following the Agent’s request.

18.2 Compliance Certificate

(a) The Borrower shall supply to the Agent, with each set of financial statements delivered pursuant to paragraph (a)(i) or (a)(ii) of Clause 18.1 (Financial statements), a Compliance Certificate.

(b) Each Compliance Certificate delivered pursuant to paragraph (a) above shall be signed by two authorised signatories of the Borrower.

(c) The Borrower shall deliver (or caused to be delivered) to the Agent a copy of each Parent Credit Agreement Compliance Certificate at the same time it is required to be delivered to the lenders under the Parent Credit Agreement.  For this purpose, the Borrower authorises the Agent to obtain the Parent Credit Agreement from HSBC Bank USA, N.A..

18.3 Requirements as to financial statements

(a) Each set of financial statements delivered by the Borrower pursuant to Clause 18.1 (Financial statements) shall be certified by a director of the Borrower as giving a true and fair view of (in the case of any such financial statements which are audited) or fairly representing (in the case of any such financial statements which are unaudited) its financial condition as at the date as at which those financial statements were drawn up.

(b) The Borrower shall procure that each set of audited financial statements delivered pursuant to Clause 18.1 (Financial statements) is prepared using GAAP, accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements unless, in relation to any set of financial statements, it notifies the Agent that there has been a change in GAAP, the accounting practices or reference periods and the Borrower (or, if appropriate, its auditors) deliver to the Agent:

(i) a description of any change necessary for those financial statements to reflect the GAAP, accounting practices and reference periods upon which the Original Financial Statements were prepared; and

(ii) sufficient information, in form and substance as may be reasonably required by the Agent, to enable the Lenders to determine whether the requirements of this Agreement have been complied with and make an accurate comparison between the financial position indicated in those financial statements and the Original Financial Statements.

Any reference in this Agreement to those financial statements shall be construed as a reference to those financial statements as adjusted to reflect the basis upon which the Original Financial Statements were prepared.

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18.4 Monthly Report

The Borrower must supply to the Agent (for distribution to all the Lenders) a Monthly Report prepared as at the last day of each fiscal month and supplied by no later than the 10^th day of the following fiscal month or, if such 10^th day is not a Business Day, the immediately following Business Day.  The Monthly Report must list the top ten Account Debtors of the Borrower (by value) for the relevant month.

18.5 Information: miscellaneous

The Borrower shall supply to the Agent:

(a) all documents dispatched by the Borrower to its shareholders (or any class of them) or its creditors generally at the same time as they are despatched;

(b) promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against it or the Parent, and which, if adversely determined, is reasonably likely to have a Material Adverse Effect;

(c) promptly, such information as the Security Agent may reasonably require about the Security Assets and compliance of the Borrower with the terms of any Transaction Security Documents;

(d) promptly upon becoming aware of them, the details of any judgment or order of a court, arbitral body or agency which is made against the Borrower or the Parent, and which might have a Material Adverse Effect;

(e) promptly, such further information regarding the financial condition, business and operations of the Borrower or the Parent as any Finance Party (through the Agent) may reasonably request;

(f) promptly, notice of any change in its authorised signatories signed by a director or company secretary accompanied by specimen signatures of any new authorised signatories; and

(g) promptly upon the Agent’s reasonable request, an up to date copy of the Parent Credit Agreement or extracts of the sections of the Parent Credit Agreement requested by the Agent.

18.6 Notification of default

(a) The Borrower shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence.

(b) Promptly upon a request by the Agent, the Borrower shall supply to the Agent a certificate signed by two of its directors or senior officers on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).

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18.7 Direct electronic delivery by Borrower

The Borrower may satisfy its obligation under this Agreement to deliver any information in relation to a Lender by delivering that information directly to that Lender in accordance with Clause 29.5 (Electronic communication) to the extent that Lender and the Agent agree to this method of delivery.

The Borrower may satisfy its obligation under this agreement to deliver any information to the Finance Parties, the Lenders or any Administrative Party by delivering that information directly to the Agent in accordance with Clause 29.5 (Electronic communication).

18.8 "Know your customer" checks

(a) The Borrower shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any other Finance Party (including on behalf of any prospective new Finance Party)) in order for the Agent, such other Finance Party or any prospective new Finance Party to conduct all "know your customer" and other similar procedures that it is required (or deems desirable) to conduct.

(b) Each other Finance Party shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the Agent to conduct all "know your customer" and other similar procedures that it is required (or deems desirable) to conduct.

19. Financial Covenants

19.1 Definitions

In this Clause:

EBITDA means, for any period, the consolidated operating profit (loss) for continuing operations before interest, tax, depreciation of tangible assets and amortisation of goodwill and other intangible assets of the Borrower for that period, as determined based on the most recent financial statements of the Borrower, and excluding any exceptional profits or losses on the sale of or termination of an operation, exceptional costs of a reorganisation or restructuring and any extraordinary losses or expenses such as goodwill write-off, asset and investment impairment losses and provisions for investments and properties and any exceptional profits or losses on the disposals of assets and extraordinary items and minority interests.

Interest Cover Ratio means, on any date, the ratio of EBITDA for the immediately preceding 12-month period to Interest Expense for that period.

Interest Expense means, for any period, the total cash interest expense (including the interest element of any payments made under finance leases or hire purchase agreements) of the Borrower for such period with respect to all outstanding Financial Indebtedness of the Borrower (including all commissions, discounts and other fees, expenses and charges owed with respect to letters of credit and bankers’ acceptance

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financing and net costs under hedge agreements in respect of interest rates to the extent such net costs are allocable to such period in accordance with GAAP), as determined based on the most recent financial statements of the Borrower.

Leverage Ratio means, on any date, the ratio of Total Financial Liabilities to Tangible Net Worth.

Tangible Net Worth means, on any date, the aggregate of:

(a) the amount paid up on the issued share capital (other than any redeemable share capital) of the Borrower; and

(b) the amounts standing to the credit of the capital and revenue reserves (including but not limited to share premium account, any credit balance of property revaluation reserves (provided that such revaluation is supported by a valuation report on the relevant property prepared by an independent reputable firm of valuer acceptable to the Agent) and any credit balance on profit and loss account) of the Borrower,

but after deducting therefrom (if not otherwise deducted or excluded from the amounts under paragraphs (a) or (b) above):

(i) any amounts attributable to goodwill, capitalised research and development costs, intellectual property (including, but not limited to, patents and trade marks) and all other intangible assets;

(ii) amounts attributable to minority interests in the Borrower’s Subsidiaries (if any);

(iii) any declared dividend or other distributions to the Borrower’s shareholders;

(iv) any amount standing to the debit of the Borrower's capital and reserves (including profit and loss account),

and so that no amount shall be included or excluded more than once in the same calculation, in each case, as determined based on the most recent financial statements of the Borrower.

Test Date means 31 March, 30 June, 30 September and 31 December each year.

Total Financial Liabilities means, on any date, the aggregate Financial Indebtedness of the Borrower recorded on the balance sheet of the Borrower, as determined based on the most recent financial statements of the Borrower.

19.2 Interpretation

In this Clause:

(a) an accounting term used herein is to be construed in accordance with the principles applied in connection with GAAP;

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(b) any amount in a currency other than USD is to be taken into account at its USD equivalent calculated on the basis of:

(i) the Agent’s Spot Rate of Exchange; or

(ii) if the amount is to be calculated on the last day of a financial period of the Borrower, the relevant rates of exchange used by the Borrower in or in connection with its financial statements for that period; and

(c) no item may be credited or deducted more than once in any calculation.

19.3 Tangible Net Worth

The Borrower must ensure that its Tangible Net Worth at all times is greater than USD400,000,000.

19.4 Interest Cover Ratio

19.5 The Borrower must ensure that its Interest Cover Ratio at all times is not less than 4.0 times.

19.6 Leverage Ratio

The Borrower must ensure that its Leverage Ratio at all times is not greater than 0.6 times.

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