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EXHIBIT 10.1
DATED THIS 30TH DAY OF APR 1999
BETWEEN
UNITED TEST AND ASSEMBLY CENTER (S) PTE LTD
(the Borrower)
AND
THE DEVELOPMENT BANK OF SINGAPORE (LIMITED)
(the Lender)
==============
LOAN AGREEMENT
==============
XXXXXXX XXXX & PARTNERS
SINGAPORE
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C O N T E N T S
CLAUSE HEADINGS PAGE
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1. INTERPRETATION 1
2. FACILITIES 8
3. PURPOSE 8
4. CONDITIONS PRECEDENT TO DISBURSEMENT 9
5. LETTER OF CREDIT FACILITY 11
6. OVERDRAFT FACILITY 16
7. LOANS UNDER THE TERM LOAN FACILITIES 16
8. INTEREST ON THE TERM LOAN FACILITIES 18
9. REPAYMENT OF TERM LOAN FACILITIES 20
10. PREPAYMENT OF THE TERM LOAN FACILITIES 20
11. COMMITMENT FEE AND CANCELLATION FEE FOR THE FACILITIES 21
12. FRONT-END FEE 22
13. DEFAULT INTEREST 22
14. PAYMENTS 23
15. TAXES 23
16. CHANGE IN CIRCUMSTANCES 25
17. SET-OFF AND DEBIT OF ACCOUNT 26
18. REPRESENTATIONS AND WARRANTIES 26
19. AFFIRMATIVE UNDERTAKINGS 30
20. NEGATIVE UNDERTAKINGS 36
21. DEFAULT IN PAYMENT OF EXPENSES 38
22. EVENTS OF DEFAULT 38
23. INDEMNITY 42
24. CURRENCY INDEMNITY 43
25. SPECIAL CONSULTANT 43
26. WAIVER 44
27. INDULGENCE OF LENDER NOT TO DISCHARGE BORROWER 45
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CLAUSE HEADINGS PAGE
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28. PAYMENT OF COSTS 45
29. NOTICE 45
30. XXXXXXXXXX 00
00. SUCCESSORS AND ASSIGNS 47
32. SEVERABILITY 49
33. EVIDENCE 49
34. CTB SECURITIES 49
35. GOVERNING LAW AND SUBMISSION TO JURISDICTION 50
36. SECURITIES 50
37. MERGER 50
SCHEDULE 1 51
SCHEDULE 2
SCHEDULE 3
SCHEDULE 4
SCHEDULE 5
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THIS AGREEMENT is made the day of One thousand nine
hundred and ninety-nine (1999) Between:-
1. UNITED TEST AND ASSEMBLY CENTER (S) PTE LTD (Company Registration
No. 199708070H), a company incorporated in the Republic of Singapore and
having its registered office at 00 Xxxxxx Xxxx #00-00/00 Xxxxxxxxx 0 Xxxxx,
Xxxxxxxxx 000000 (hereinafter called the "Borrower") of the one part; and
2. THE DEVELOPMENT BANK OF SINGAPORE LIMITED, a company incorporated in the
Republic of Singapore and having its registered office at 0 Xxxxxxx Xxx,
XXX Xxxxxxxx, Xxxxxxxxx 000000 (hereinafter called the "Lender") of the
other part.
NOW IT IS AGREED as follows:-
1. INTERPRETATION
1.1 In this Agreement where the context so admits:-
"Agreement" means this Agreement and includes all amendments and variations
thereof made from time to time;
"Assignment of Property" means the deed of assignment and
mortgage-in-escrow executed or to be executed by the Borrower in favour of
the Lender in respect of all rights title interest and benefit of the
Borrower in under or arising out of the Building Agreement and in the
Property and includes any amendments and variations thereto or any further
mortgages or any mortgage executed in substitution for or in addition to
the Assignment of Property;
"Available Commitment" means the L/C Facility Limit less the L/C Facility
Outstandings;
"Availability Period" means:-
(a) for TL 1, the period commencing from the date of this Agreement and
ending on the earlier of (i) 30 June 1999 or (ii) the date on which
the Lender's commitment for TL 1 is cancelled under the provisions of
this Agreement;
(b) for TL 2, the period commencing from the date of this Agreement and
ending on the earlier of (i) 31 December 1999 or (ii) the date on
which the Lender's commitment for TL 2 is cancelled under the
provisions of this Agreement;
(c) for TL 3, the period commencing from the date of this Agreement and
ending on the earlier of (i) 31 December 1999 or (ii) the date on
which the Lender's commitment for TL 3 is cancelled under the
provisions of this Agreement;
(d) for the Letter of Credit Facility, the period commencing from the date
of this Agreement and ending on the earliest of (i) 31 December 1999
or (ii) the date on which TL 2 is fully borrowed or cancelled or
(iii) the date on which TL 3 is fully borrowed or cancelled or
(iv) the date on which the Lender's commitment for the Letter of
Credit Facility is cancelled under the provisions of this Agreement,
unless otherwise agreed to be extended by the Lender;
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"Borrower" includes its successors;
"Building Agreement" means the Building Agreement dated 28 February 1995
made between Micropolis Limited and JTC as varied by a First Supplementary
Agreement dated 9 September 1997 made between JTC of the one part and
Micropolis (S) Limited (formerly known as Micropolis (S) Pte Ltd) of the
other part (including any amendments modifications or variations thereto
and any further agreement, instrument, deed or document executed in
substitution therefor or in addition thereto) whereby JTC agreed to grant a
Lease of the Property to the Borrower as lessee on the terms and conditions
mentioned therein;
"Business Day" means any day, other than a Saturday, Sunday or public
holiday, on which banks are open for business in Singapore, and (if a
transaction relates to US Dollars) also in New York City;
"CTB" means Xxxxx Xxxx Bank Co. Ltd., Singapore branch, a bank incorporated
in Taiwan, the Republic of China and having a place of business at
00 Xxxxxxx Xxxxx #00-00 XXX Xxxxx 0 Xxxxxxxxx 000000 and includes its
successor;
"CTB Assignment of Property" means the deed of assignment and
mortgage-in-escrow substantially in the forms of the Assignment of Property
executed or to be executed by the Borrower in favour of CTB in respect of
all rights title interest and benefit of the Borrower in under or arising
out of the Building Agreement and in the Property;
"CTB Debenture" means the deed of debenture substantially in the form of
the Debenture executed or to be executed by the Borrower in favour of CTB
creating first faced and floating charges over all the properties, assets
and undertakings (both present and future) of the Borrower;
"CTB Securities" mean the CTB Assignment of Property and the CTB Debenture;
"Debenture" means the deed of debenture executed or to be executed by the
Borrower in favour of the Lender creating first fixed and floating charges
over all the properties, assets and undertakings (both present and future)
of the Borrower and includes any amendments and variations thereto or any
further deed of debenture or charge or any deed executed in addition to or
in substitution for the Debenture;
"Default Interest Rate" means:-
(a) at any time in respect of all amounts under TL 2, the rate per annum
exceeding by three per cent (3%) the average of the prevailing prime
lending rates for Singapore Dollars for the time being quoted by the
principal Singapore offices of the Lender, United Overseas Bank
Limited, Oversea-Chinese Banking Corporation Limited and Overseas
Union Bank Limited;
(b) at any time in respect of all amounts under TL 1 and TL 3, the rate
per annum exceeding by three per cent (3%) the applicable Interest
Rate or at such other rate or rates as the Lender may at the time and
from time to time determine at its absolute discretion;
(c) at any time in respect of all amounts under the Short Term Facilities
and all other amounts due under the Facility Documents, the rate or
rates as the
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Lender may at the time and from time to time determine at its absolute
discretion;
"EDB" means the Economic Development Board established under the Economic
Development Board Act (Chapter 85, Singapore Statutes);
"Event of Default" means any, each or all (as the context may require) of
the events specified in Clause 22.1;
"Facilities" means the Term Loan Facilities and the Short Term Facilities
and "Facility" means any of the Facilities, as the context may require;
"Facility Documents" mean this Agreement and the Securities;
"Interest Payment Date" means the last day of an Interest Period;
"Interest Period" means in respect of TL 1 and TL 3, each successive
interest period of three (3) months;
"Interest Rate" means:-
(a) for the Overdraft Facility, the rate per annum exceeding by one per
cent (1%) the Prime Rate or such other rate or rates as the Lender may
at the time and from time to time determine at its absolute discretion
and notified to the Borrower;
(b) for TL 1, with respect to any Interest Period, the rate per annum
determined by the Lender to be the sum of one point five per cent
(1.5%) per annum and the applicable SWAP Offer Rate for that Interest
Period;
(c) for TL 2, the rate or rates per annum under the Scheme as varied from
time to time in accordance with Clause 8.3.4;
(d) for TL 3, with respect to any Interest Period, the rate per annum
determined by the Lender to be the sum of one point five per cent
(1.5%) per annum and the applicable SIBOR for that Interest Period;
"JTC" means the Jurong Town Corporation of Singapore;
"JTC Consent" means the letter of consent dated 13 August 1998 issued by
JTC to the Borrower consenting to the Borrower's purchase of the Property;
"Lease" means a lease for a term of thirty (30) years commencing from
1 October 1994, granted or to be granted by JTC to the Borrower pursuant to
the terms and conditions of the Building Agreement and includes any
amendments and variations thereto or any further leases or any leases
executed in substitution for or in addition to the Lease;
"Lender" includes its successors and assigns;
"L/C Application" means the application in the form set out in Schedule 4;
"L/C Facility Limit" means the amount set out in Clause 2.2 as it may be
reduced from
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time to time;
"L/C Facility Outstandings" means at any time the total of (i) the
aggregate amounts of the actual and/or contingent liability of the Lender
under or in connection with all Letters of Credit and (ii) the aggregate
amounts paid by the Lender under or in connection with the Letters of
Credit and not reimbursed by the Borrower to the Lender;
"Letter of Credit" means a documentary letter of credit opened by the
Lender at the Borrower's request in favour of such third party and in such
form as the Lender shall determine;
"Letter of Credit Facility" means the facility for issuance of Letters of
Credit on the terms and conditions of this Agreement;
"Loan" means the principal amount of each borrowing made or to be made by
the Borrower under TL 1, TL 2 or TL 3 or the principal amount outstanding
of that borrowing;
"Notice of Drawing" means a notice substantially in the form of Schedule 5;
"Overdraft Facility" means advances, loans, credit and/or other banking
facilities granted or to be granted to the Borrower from time to time by
the Lender on overdraft account (including payments made from time to time
by the Lender on cheques, drafts, bills of exchange, promissory notes or
orders drawn, made, accepted or endorsed by the Borrower or discounted with
the Lender) on the terms and conditions of this Agreement;
"Potential Event of Default" means any condition act or event which with
the giving of notice lapse of time and/or determination of materiality or
other condition would become an Event of Default;
"Prime Rate" means at the relevant time, the rate per annum that is the
prevailing prime lending rate for US Dollars for the time being quoted by
the Lender's New York Agency;
"Property" means all that piece of land known as Xxxxxxx Xxx X00000
(formerly known as Private Lot A16262) comprised in part of Government
Resurvey Lots 13614 (formerly known as part of Lot 7634), 9419, 10979 and
12500 all of Mukim 18, Ang Mo Ko containing an area of 17,930 square metres
or thereabouts together with the buildings erected or to be erected thereon
and known as Xx. 0 Xxxxxxxxx Xxxxx Xxxxxx 0, Xxxxxxxxx 000000;
"Scheme" means the Resource Productivity Scheme of the EDB as varied,
supplemented or substituted from time to time;
"Securities" means the Assignment of Property and the Debenture or any one
of them as the case may be and/or any other security created in favour of
the Lender from time to time as security for the Total Indebtedness or any
part thereof and includes any amendments and variations thereto or any
further agreement or deed executed in supplement to or in addition to or in
substitution for the Securities;
"Short Term Facilities" means the Letter of Credit Facility and the
Overdraft Facility;
"SIBOR" means the rate per annum determined by the Lender to be the
arithmetic mean (rounded upwards if necessary to the nearest 1/16 of 1%) of
the rates at which US Dollars
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deposits are being offered by prime banks in Singapore Interbank Market at
or about 11.00 a.m. on the second Business Day before the commencement of
the relevant Interest Period as quoted on the page "SIBO" of the Xxxxxx
Money Rates Service (or such other page as may replace the SIBO page) for
the purpose of displaying Singapore Interbank US Dollar offered rates for
prime banks;
"Singapore Dollars" and the sign "S$" mean the lawful currency for the time
being of the Republic of Singapore;
"Special Consultant" means the special consultant appointed in accordance
with Clause 25;
"SWAP Offer Rate" has the meaning ascribed to it in Schedule 1;
"TL 1" means the term loan facility of up to an aggregate principal amount
of Singapore Dollars Ten Million (S$10,000,000.00);
"TL 2" means the term loan facility of up to an aggregate principal amount
of Singapore Dollars Ten Million (S$10,000,000.00);
"TL 3" means the term loan facility of up to an aggregate principal amount
of US Dollars Eight Million (US$8,000,000.00);
"Term Loan Facilities" means TL 1, TL 2 and TL 3;
"Total Indebtedness" mean at any time all amounts (whether of principal,
interest, default interest, commission, costs, fees, charges or otherwise)
at that time owing or payable (whether contingently or otherwise) by the
Borrower to the Lender under the provisions of the Facility Documents
(including any amounts for which the Borrower has agreed to indemnify the
Lender);
"US Dollars" and the sign "US$" mean the lawful currency for the time being
of the United States of America.
1.2 Any reference in this Agreement to:-
1.2.1 an "authorisation" includes any approval, consent, licence,
permit, franchise, permission, registration, resolution,
direction, declaration and exemption;
1.2.2 "borrowed moneys" mean (a) moneys borrowed or raised
(including hire under financial leases) and interest
thereon, (b) any liability under any bond, note, guarantee,
indemnity or other security or under acceptance credit
facilities, (c) any liability in respect of the acquisition
cost of assets or services to the extent payable after the
time of acquisition or possession thereof other than assets
or services obtained in the normal course of business, and
(d) any guarantee or other assurance against financial loss
in respect of such moneys borrowed or raised, interest or
liability;
1.2.3 a "certified copy" means a copy certified by an authorised
signatory as being a true, complete and up to date copy of
an original then currently in full force and effect;
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1.2.4 a "Clause", "Recital" or "Schedule" is to be construed as a
reference to a clause, recital or schedule of this Agreement
unless the context requires otherwise;
1.2.5 an "encumbrance" includes any mortgage, charge (whether
fixed or floating), pledge, lien (other than a lien arising
by operation of law in the ordinary course of business
unless the lien remains undischarged fourteen (14) days
after it arose), hypothec, hypothecation, assignment,
fiduciary assignment, fiduciary transfer, power of attorney
to establish hypothec, power of attorney to sell, security
interest or any other type of preferential agreement or
arrangement having substantially the same economic effect
(including sale and repurchase agreements, title retention
or flawed asset arrangements);
1.2.6 "indebtedness" shall be construed so as to include any
obligation (whether incurred as principal or as surety) for
the payment or repayment of money, whether present or
future, actual or contingent;
1.2.7 a "person" shall be construed as a reference to any
individual, firm, company, corporation, government, state or
agency of a state or any association or partnership (whether
or not having separate legal personality) of two or more of
the foregoing;
1.2.8 a "subsidiary" shall mean a subsidiary as defined in the
Companies Act (Chapter 50, Singapore Statutes);
1.2.9 "tax" shall be construed so as to include any present or
future tax, levy, impost, duty, goods and services tax,
value added tax or other charge of a similar nature
(including, without limitation, any penalty or interest
payable in connection with any failure to pay or any delay
in paying any of the same) imposed, levied, collected,
withheld or assessed by any agency of Singapore;
1.2.10 the "winding-up", "dissolution" or "judicial management" of
a company, the "bankruptcy" of an individual, the
appointment of a receiver and/or manager, liquidator,
administrator, judicial manager or trustee shall be
construed so as to include any equivalent or analogous
proceedings or appointment under the law of the jurisdiction
in which such company is incorporated or such individual is
domiciled or any jurisdiction in which such company or such
individual carries on business or has assets;
1.2.11 a "year", "month" or "day" shall be construed as a reference
to a calendar year, a calendar month or a calendar day;
1.2.12 any statute or other legislation, subsidiary legislation or
rules shall be read as referring to such statute or other
legislation, subsidiary legislation or rules as amended or
re-enacted from time to time; and
1.2.13 a time of day is a reference to Singapore time unless
provided otherwise.
1.3 The headings in this Agreement are inserted for convenience only and shall
be ignored in construing this Agreement.
1.4 Unless the context requires otherwise, words (including words defined
herein) denoting
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the singular number shall also include the plural and vice versa and words
denoting any gender shall include any other gender.
2. FACILITIES
Subject to the terms and conditions of this Agreement, the Lender shall
make available to the Borrower the following:-
2.1 an Overdraft Facility of up to an aggregate principal amount of
US Dollars One Million (US$1,000,000.00); and
2.2 a Letter of Credit Facility of [up] to an aggregate principal amount
of US Dollars Five Million (US$5,000,000.00); and
2.3 TL 1 of up to an aggregate principal amount of Singapore Dollars Ten
Million (S$10,000,000.00) or thirty per cent (30%) of the purchase
price of the factory on the Property, whichever is the lower; and
2.4 TL 2 of up to an aggregate principal amount of Singapore Dollars Ten
Million (S$10,000,000.00) or fifty per cent (50%) of the purchase
price of the automation machinery and equipment described in
Schedule 2 or such other machinery as shall be approved by EDB from
time to time, whichever is the lower; and
2.5 TL 3 of up to an aggregate principal amount of US Dollars Eight
Million (US$8,000,000.00) or fifty per cent (50%) of the purchase
price of the machinery and equipment described in Schedule 3 or such
other machinery as shall be approved by the Lender from time to time,
whichever is the lower.
3. PURPOSE
Subject to the terms and conditions of this Agreement, the Borrower shall
utilise the Facilities, unless the Lender approves otherwise, as follows:-
3.1 the Overdraft Facility shall be utilised to finance the Borrower's
working capital requirements;
3.2 the Letter of Credit Facility shall be utilised to finance the
Borrower's purchase of the machinery and equipment described in
Schedules 2 and 3 or such other machinery as shall be approved by EDB
or the Lender (as the case may be) from time to time;
3.3 TL 1 shall be utilised to finance the Borrower's purchase of the
factory on the Property;
3.4 TL 2 shall be utilised to finance the Borrower's purchase of the
automation machinery and equipment described in Schedule 2 or such
other machinery as shall be approved by EDB from time to time; and
3.5 TL 3 shall be utilised to finance the purchase of the machinery and
equipment described in Schedule 3 or such other machinery as shall be
approved by the Lender from time to time.
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4. CONDITIONS PRECEDENT TO DISBURSEMENT
Unless the Lender at its discretion permits otherwise the Borrower shall
not be entitled to utilise any part of the Facilities until and unless:-
4.1 the Lender shall have received and found reasonably satisfactory the
following:-
4.1.1 a certified copy of each of the Certificate of Incorporation and
the Memorandum and Articles of Association of the Borrower;
4.1.2 a certified copy of the resolutions of the board of directors of
the Borrower authorising, in accordance with the Memorandum and
Articles of Association of the Borrower:-
(a) the execution of the Facility Documents;
(b) a person or persons to sign this Agreement, any L/C
Application, any Notice of Drawing and any other documents to
be given pursuant to or ancillary to the Facility Documents by
or on behalf of the Borrower;
(c) the execution of all other documents called for by the
Facility Documents;
4.1.3 specimen signatures of each of the authorised signatories
referred to in Clause 4.1.2 authenticated by a director of the
Borrower or such other party acceptable to the Lender;
4.1.4 the Building Agreement and all other title documents in respect
of the Property and the Facility Documents duly executed and
unconditionally delivered by the Borrower to the Lender and where
applicable, duly stamped and registered with the Singapore Land
Registry and the Registry of Companies in Singapore;
4.1.5 evidence that JTC has consented to the creation of the Assignment
of Property and to the terms and conditions therein and that the
Borrower has complied with all the terms and conditions thereto;
4.1.6 evidence that the Borrower and any other party have complied with
all the terms and conditions in the JTC Consent which are
required to be complied with by the Borrower and any other party;
4.1.7 documentary evidence of the payment of all fees due and payable
by the Borrower hereunder;
4.1.8 replies to legal requisitions, the Road and Drainage (if
applicable) Interpretation Plans in respect of the Property and
the Lender's decision in relation thereto shall be final,
conclusive and binding on the Borrower;
4.1.9 evidence that all land rents (if applicable) and property tax in
respect of the Property have been
paid up-to-date;
4.1.10 evidence that the Borrower has effected insurance of the Property
and the machinery and equipment described in Schedules 2 and 3;
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4.1.11 EDB's approval to the Lender's grant of TL 2 to the Borrower under
the Scheme.
Provided that the condition precedent mentioned in Clause 4.1.11 is applicable
only for the borrowing of the first Loan under TL 2.
4.2 the Lender is reasonably satisfied that the following conditions have been
met:-
4.2.1 all acts, conditions and things required to be done and performed
and to have happened precedent to the execution and delivery of
the Facility Documents to constitute the same legal, valid and
binding obligations enforceable in accordance with their terms
shall have been done and performed and have happened in due and
strict compliance with all applicable laws;
4.2.2 there is no adverse change in the financial condition, operating
environment, management of the Borrower or any other conditions
which in the opinion of the Lender will materially and adversely
affect the ability of the Borrower to perform its obligations
under the Facility Documents;
4.2.3 there is no legal administrative or arbitration proceeding suit
or action of any kind whatsoever (whether criminal or civil)
instituted against the Borrower which in the reasonable opinion
of the Lender will materially and adversely affect the ability of
the Borrower to perform its obligations under any of the Facility
Documents;
4.2.4 there is no winding-up notice/petition/proceeding against the
Borrower;
4.2.5 no Event of Default or Potential Event of Default (other than any
waived) has occurred and is continuing;
4.2.6 all conditions imposed by the EDB have been fully complied with by
the Borrower;
4.2.7 a current account has been opened by the Borrower with the Lender;
4.2.8 there are no notices or orders issued or served under Section 13,
Section 23, Section 24 or Section 25 of the Building Control Act
(Cap. 29) in respect of the Property or any part thereof or
restrictive covenants which would affect the Lender taking the
Property as security;
4.2.9 the title to the Property is acceptable to the Lender in its
absolute discretion and the Property is acceptable to the Lender
in its absolute discretion as security in all respects for the
Facilities and the Lender's decision shall be final, conclusive
and binding on the Borrower.
5. LETTER OF CREDIT FACILITY
5.1 Subject to the provisions of this Agreement, the Borrower may on any
Business Day during the applicable Availability Period request the Lender
to issue or renew Letters of Credit under the Letter of Credit Facility by
giving to the Lender a L/C Application Provided Always that on both the
date of such L/C Application and the proposed issue or renewal date of such
Letter of Credit:-
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5.1.1 no Potential Event of Default or Event of Default (other than any
waived) has occurred and is continuing or would occur as a result
of issuing or renewing such Letter of Credit;
5.1.2 the representations and warranties contained in Clause 18 are
true and correct in all material respects as at each such date
with reference to the circumstances then existing.
5.2 Each L/C Application shall be received by the Lender, duly signed and
completed by the Borrower, not less than five (5) Business Days before the
proposed date of the issue or renewal of a Letter of Credit and shall:-
5.2.1 state:-
(a) the proposed issue or renewal date of such Letter of Credit
which must be a Business Day within the Availability Period;
(b) the amount for which such Letter of Credit is to be issued or
renewed which shall not exceed the Available Commitment at that
time;
5.2.2 be accompanied by evidence satisfactory to the Lender that the
payment covered by the Letter of Credit is required for the
purpose specified in Clause 3.2; such evidence to be in the form
of certified copies of the relevant purchase contracts and
invoices relating to the machinery and equipment in respect of
which such Letter of Credit is requested to be issued or renewed.
5.3 Each Letter of Credit shall:-
5.3.1 cover payment of amounts required for the purpose specified in
Clause 32;
5.3.2 expire not later than the applicable Availability Period;
5.3.3 provide for payment at sight against drafts drawn on the Lender;
5.3.4 in other respects be in such form and contain such terms as the
Lender may approve in accordance with its usual practice.
5.4 For the purpose only of calculating the Available Commitment in connection
with the proposed request for issue or renewal of a Letter of Credit (and
not for any other purpose), if any L/C Application (including L/C
Applications currently under consideration but excluding the Letter of
Credit currently requested) are outstanding for issue or renewal of Letters
of Credit on or before the proposed date of such Letter of Credit, the
aggregate amounts of those Letters of Credit shall be treated as
outstanding.
5.5 The requirements of Clause 4 shall have been satisfied before the first L/C
Application is made. A L/C Application, once given, shall constitute an
irrevocable authorisation to the Lender to issue or renew a Letter of
Credit.
5.6 The Borrower hereby unconditionally and irrevocably undertakes to keep the
Lender fully indemnified in accordance with the following provisions of
this Clause from and against all liabilities, claims, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses and
disbursements of any kind whatsoever, legal or otherwise, which the
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Lender may reasonably sustain, suffer or incur under or in connection with
any Letter of Credit which may be issued by the Lender under the Letter of
Credit Facility.
5.7 If the Lender notifies the Borrower that a beneficiary under any Letter of
Credit has required it to pay any sum under such Letter of Credit the
Borrower shall forthwith on demand pay to the Lender the amount which it
has been so required to pay under and in accordance with the terms of such
Letter of Credit (whether or not the Lender has already paid it) in the
currency in which payment was or is to be made by the Lender in accordance
with the terms of the Letter of Credit and the Lender shall be entitled at
its absolute discretion to debit, at any time and without notice to the
Borrower, the current account or any other account of the Borrower with the
Lender such amount which the Lender has been so required to pay under such
Letter of Credit notwithstanding that:-
5.7.1 such sum may not have been properly due under such Letter of
Credit because the corresponding sum was not properly due to such
beneficiary thereunder in respect of the amounts guaranteed or
payable or for any reason whatsoever Provided that the relevant
claim was made in accordance with the terms of the relevant
Letter of Credit; or
5.7.2 such Letter of Credit or any provision thereof or any other document
is void, voidable or invalid or is not binding on or enforceable
against the Borrower or the Lender respectively for any reason
whatsoever, whether known to the Lender or not, including,
without limitation, illegality, disability, lack of authorisation
or capacity, or lack of powers on the part of the members,
officers or agents of the Borrower or the members, officers or
agents of the Lender and without regard to any condition
sufficiency accuracy or genuineness of any such claim, request or
demand or any certificate statement or document in connection
therewith.
5.8 The Lender shall at all times be entitled to make any payment under any
Letter of Credit for which a demand has been made in accordance with the
terms of the Letter of Credit, without further investigation or enquiry,
and need not concern itself with the propriety of any claim made or
purported to be made under and in the manner required by the terms of such
Letter of Credit; accordingly it shall not be a defence to any demand made
of the Borrower under this Agreement, nor shall any of the Borrower's
obligations hereunder, be affected or impaired by the fact that the Lender
was or might have been justified in refusing payment, in whole or in part,
of the amounts so claimed.
5.9 The indemnity in this Clause shall continue until all the terms, covenants
and conditions of this Agreement have been fully and completely performed
by the Borrower or otherwise discharged and until the Lender has been
discharged from all its obligations under each of the Letters of Credit
issued or renewed under the Letter of Credit Facility whereupon the
indemnity shall be discharged Provided that such discharge shall be deemed
to be made subject to the condition that it will be void if any security,
disposition or payment to the Lender or to a Beneficiary under any Letter
of Credit made by the Borrower or any other person is set aside, avoided or
reduced pursuant to any provision or enactment relating to the dissolution,
deregistration, bankruptcy, liquidation, reorganisation or otherwise of the
Borrower or such other person (whether as a fraudulent preference or
otherwise) or proves otherwise to have been invalid, in which event the
Borrower shall make good to the Lender upon demand the whole of the amount
thereof and the Lender shall be entitled to enforce this indemnity against
the Borrower subsequently as if such discharge had not occurred.
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5.10 The indemnity contained in this Clause shall be in addition to and shall
not be in any way prejudiced or affected by any collateral or other
security now or hereafter held by the Lender for all or any part of the
obligations and payments hereby indemnified.
5.11 Without prejudice to the other provisions of this Agreement, the Borrower
shall, upon demand in writing from the Lender or upon the making of a
declaration by the Lender pursuant to Clause 22.1, whichever is the
earlier, (a) procure the complete and unconditional release of all Letters
of Credit which are still then in force or (b) place with the Lender such
sums as are required to enable the Lender to procure the complete and
unconditional release of all such Letters of Credit or keep the Lender in
funds for fully meeting and discharging all its liabilities under all such
Letters of Credit.
5.12 All or any payments made by the Lender from time to time pursuant to a
demand by a beneficiary under and in accordance with the terms of any
Letter of Credit and all payments made by the Lender to obtain a complete
and unconditional release of any Letter of Credit shall be immediately
repaid to the Lender by the Borrower on demand together with interest
thereon calculated at the applicable Default Interest Rate from the date
of such payment by the Lender up to and including the date of repayment by
the Borrower (as well after as before judgment in respect thereof) and the
Lender will notify the Borrower of such payment made by it as soon as
practicable.
5.13 The Borrower's liabilities and obligations under this Agreement shall not
be diminished or extinguished by any act, omission, default, matter or
thing which would but for this Clause have discharged the Borrower (wholly
or in part) or would have afforded the Borrower any legal or equitable
defence except the full and complete performance of all the terms of this
Agreement, including the due and punctual payment of all amounts that may
become due to the Lender hereunder and the final discharge of the
indemnity under this Clause, including without limitation any of the
following matters:-
(a) if the beneficiary/beneficiaries under a Letter of Credit grant(s)
any indulgence forbearance or extension of time to the Borrower or
the Lender or release(s) or discharge(s) (wholly or in part) or
make(s) any settlement, composition or arrangement with the Borrower
or the Lender; or
(b) if the Lender grants any indulgence, forbearance or extension of
time, release or discharge to the Borrower or the
beneficiary/beneficiaries under a Letter of Credit (wholly or in
part) or makes any settlement, composition or arrangement with the
Borrower or such beneficiary/beneficiaries; or
(c) If the Lender or any of the beneficiaries under a Letter of Credit
asserts or pursues, fails or neglects to assert or pursue, or delays
in asserting or pursuing, or waives, any of its rights or remedies
(arising under or by virtue of this Agreement, the Letter of Credit,
the general law or otherwise) against the Borrower; or
(d) if the Lender at the request of the beneficiary/beneficiaries under
a Letter of Credit accepts, varies, deals with, exchanges,
surrenders or abstains from perfecting or enforcing, any collateral
or other security or other guarantee in relation to the transactions
contemplated under the Letter of Credit.
5.14 The Borrower shall pay to the Lender commission for Letters of Credit in
accordance with the following provisions of this Clause:-
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5.14.1 commission shall be payable on the full amount for which a Letter
of Credit is to be granted and for its full duration, at the
Lender's prevailing rate as notified by the Lender to the Borrower
from time to time;
5.14.2 for the purpose of this Agreement, the full duration of a Letter
of Credit shall mean the period commencing on the effective date
of that Letter of Credit up till and including the last day on
which the beneficiary makes or may make a claim thereunder;
5.14.3 all commission shall be paid in one sum in advance on or before
the date of issue or renewal (as the case may be) of that Letter
of Credit;
5.14.4 the Lender shall notify the Borrower of the amount of commission
payable by the Borrower on or before the date of issue or renewal
of a Letter of Credit.
5.15 All commission payable under this Agreement shall be computed on the basis
of a three hundred and sixty (360) day year and on actual days elapsed.
5.16 Notwithstanding any other provisions of this Agreement, the Letter of
Credit Facility may be reviewed from time to time and at any time by the
Lender or may be varied, reduced or cancelled accordingly and nothing in
this Agreement shall be deemed to impose on the Lender any obligation at
law or equity to make or continue to make available the Letter of Credit
Facility to the Borrower.
6. OVERDRAFT FACILITY
6.1 Subject to the discretion of the Lender to permit otherwise and to the
terms and conditions of this Agreement, the Overdraft Facility shall be
available and continue to be available to the Borrower for advances in
US Dollars up to the aggregate amount of US Dollars One Million
(US$1,000,000.00) and shall be operated in accordance with and subject to
the Lender's normal terms from time to time for overdraft facilities of
this nature.
6.2 Each drawing and/or utilisation under the Overdraft Facility shall
constitute a representation and warranty by the Borrower that at the date
thereof:-
6.2.1 no Potential Event of Default or Event of Default (other than any
waived) has occurred and is continuing or would occur as a result
of such drawing and/or utilisation;
6.2.2 the representations and warranties contained in Clause 18 are true
and correct in all material respects as at each such date with
reference to the circumstances then existing.
6.3 The Borrower shall pay on demand to the Lender all such sums of money which
are now or shall from time to time and at any time hereafter be owing or
remaining unpaid to the Lender by the Borrower under the Overdraft Facility
together with interest (and default interest if applicable) owing or
remaining unpaid under the Overdraft Facility at the applicable Interest
Rate or Default Interest Rate (as the case may be) and calculated on a
daily basis on a 360 day year and until payment shall accumulate by way of
compound interest with monthly rests or in such other manner as the Lender
may from time to time stipulate as well after as before judgment (if any)
in respect thereof.
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6.4 Notwithstanding any other provisions of this Agreement, the Overdraft
Facility may be reviewed from time to time and at any time by the Lender or
may be varied, reduced or cancelled accordingly and nothing in this
Agreement shall be deemed to impose on the Lender any obligation at law or
equity to make or continue to make available the Overdraft Facility to the
Borrower.
7. LOANS UNDER THE TERM LOAN FACILITIES
7.1 Subject to the Lender's discretion to permit otherwise and to the other
terms and conditions of this Agreement, the Borrower may on a Business Day
during the applicable Availability Period borrow a Loan under any of the
Term Loan Facilities by giving the Lender a Notice of Drawing Provided that
both on the date of such Notice of Drawing and the date of the proposed
borrowing of such Loan:-
7.1.1 no Potential Event of Default or Event of Default (other than any
waived) has occurred and is continuing or would occur as a result of
borrowing such Loan; and
7.1.2 the representations and warranties contained in Clause 18 of this
Agreement are correct and accurate in all material respects on and
as of each such date with reference to circumstances then existing.
7.2 Each Notice of Drawing shall be received by the Lender, duly signed and
completed by the Borrower, not less than five (5) Business Days before the
proposed date of the borrowing of a Loan and shall:-
7.2.1 state from which of the Term Loan Facilities such Loan is to be made
and the amount of such Loan;
7.2.2 state the proposed date of the borrowing of the Loan (which must be
a Business Day within the applicable Availability Period);
7.2.3 set out the particulars of the bank account in Singapore (in the
case of a Loan under TL 1 and TL 2) or in New York City (in the case
of a Loan under TL 3) into which the funds shall be paid;
7.2.4 be accompanied by such purchase invoices, delivery orders, shipping
documents and/or other documentary evidence reasonably satisfactory
to the Lender evidencing that such Loan is required for the purpose
specified in Clause 3.3, Clause 3.4 or Clause 3.5 (as the case may
be).
7.3 Once having been given by the Borrower, a Notice of Drawing shall be
irrevocable and the Borrower shall be bound to borrow in accordance with
that Notice of Drawing. In addition to the other remedies of the Lender
hereunder, the Borrower shall be fully liable and accountable to the Lender
for any costs incurred by the Lender resulting from the failure of the
Borrower to borrow such Loan or a failure to satisfy the conditions of such
Loan, including but not limited to costs and losses incurred or suffered by
the Lender from re-employment of funds obtained at rates lower than the
cost of such funds or any expense incurred by the Lender in liquidating
such funds.
7.4 No Loan shall be made to finance any payment which has been financed by any
previous Loan.
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7.5 Any amount under TL 1 or TL 2 or TL 3 which is not borrowed by the end of
its applicable Availability Period shall be deemed to have been cancelled
by the Borrower on that date and in the case of TL 1 and TL 3, the Borrower
shall pay to the Lender on that date the applicable cancellation fee set
out in Clause 11.2.2 on such amount.
8. INTEREST ON THE TERM LOAN FACILITIES
8.1 The Borrower shall pay to the Lender interest on the Loans in accordance
with the following provisions of this Clause.
8.2 8.2.1 The rate of interest on each Loan under TL 1 for each of its
Interest Period shall be the applicable Interest Rate;
8.2.2 The rate of interest on each Loan under TL 3 for each of its
Interest Period shall be the applicable Interest Rate;
8.2.3 Interest shall accrue on each Loan under TL 1 and TL 3 during each
of its Interest Periods from day to day and shall be calculated on
the actual number of days elapsed and on a 365 day year (for Loans
under TL 1) and on a 360 day year (for Loans under TL 3), from and
including the first day of the relevant Interest Period up to but
excluding the last day thereof.
8.2.4 Interest accrued during each Interest Period for each Loan under
TL 1 and TL 3 shall be paid by the Borrower to the Lender without
demand on the last day of each Interest Period for that Loan.
8.2.5 Each Interest Period for each Loan under TL 1 and TL 3 shall be of
the duration of three (3) months but such that:-
(a) each Interest Period for each Loan shall commence on its
relevant date of borrowing (in the case of the initial Interest
Period) or the date of expiry of its preceding Interest Period
(in the case of any subsequent Interest Period);
(b) (i) an Interest Period for a Loan under TL 1 which would
otherwise end after the date for repayment of an
instalment as specified in Clause 9.1 shall be abridged
to end on that date for repayment of such instalment;
(ii) an Interest Period for a Loan under TL 3 which would
otherwise end after the date for repayment of an
instalment as specified in Clause 9.3 shall be abridged
to end on that date for repayment of such instalment;
(c) an Interest Period which would otherwise end on a day which is
not a Business Day shall be extended to the next succeeding
day which is a Business Day unless that succeeding Business
Day falls within the next calendar month in which case such
Interest Period shall end on the previous Business Day,
(d) any Interest Period which commences on a day for which there
is no numerically corresponding day in the calendar month
three (3) months
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thereafter, as the case may be, shall,
subject to the provisions of this Clause 8.2.5, end on the
last Business Day of such calendar month or the first Business
Day of the next calendar month as may be agreed between the
Borrower and the Lender.
8.3 8.3.1 The rate of interest on each Loan under TL 2 shall be the applicable
Interest Rate;
8.3.2 Interest shall accrue on each Loan under TL 2 from day to day and
shall be calculated on the basis of a 365 day year and compounded
monthly;
8.3.3 Interest accrued on each Loan under TL 2 shall be payable monthly in
arrears until the commencement of the Borrower's repayment by
instalments as specified in Clause 9.2, whereupon interest on each
Loan shall be paid on the due date of those installments;
8.3.4 The Lender may, upon written notice to the Borrower, vary the rate
of interest for TL 2 from time to time in accordance with the Scheme
as directed by EDB (or any other authoritative body in lieu of EDB)
whereupon the Borrower shall as from the date specified in the said
notice pay such increased or reduced interest or instalments of Loan
and interest thereon as shall be appropriate.
8.4 A certificate of the Lender as to the applicable SIBOR, SWAP Offer Rate,
Default Interest Rate, Interest Rate and the amount of interest payable by
the Borrower shall (save for manifest errors) be final, conclusive and
binding on the Borrower for all purposes.
8.5 Unless otherwise expressly set out herein, all interest, default interest,
commission, fees and other payments calculated based on a rate per annum
shall accrue from day to day and shall be calculated on the actual number
of days elapsed and a 365 day year (for Singapore Dollars) and a 360 day
year (for US Dollars) from and including the date of disbursement or the
date the amount became owing by the Borrower under the terms hereof up to
but excluding the date of payment.
8.6 If and whenever at any time prior to the commencement of any Interest
Period by reason of circumstances affecting the Singapore Interbank Market
generally, adequate and reasonable means do not exist for ascertaining
SIBOR or the Swap Offer Rate for that Interest Period, then the Lender may
notify the Borrower of such determination and shall certify an alternative
basis (the "Substitute Basis") for the calculation of the rates of interest
required to be calculated for the purpose of Clause 8.2. The Substitute
Basis may (without limitation) include an alternative interest period or
alternative interest rate which shall represent the applicable margin above
the cost to the Lender of funding the relevant amount. If at any time while
a Substitute Basis is in force the Lender determines that the circumstances
giving rise to the application of the Substitute Basis have ceased to
exist, and there being no other supervening event under this Clause, then
the Lender shall notify the Borrower accordingly and the parties will
revert to the other provisions of this Agreement as soon as practicable.
9. REPAYMENT OF TERM LOAN FACILITIES
The Borrower hereby covenants to repay to the Lender the Loans as follows:-
9.1 The Borrower shall repay all the Loans under TL 1 by twenty-eight (28)
equal quarterly
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instalments of such amount as determined by the Lender. The first of such
instalments shall be repaid on 1 February 2000 and subsequent instalments
shall be repaid at three (3) monthly intervals from that date until all
such Loans are repaid in full;
9.2 The Borrower shall repay all the Loans under TL 2 together with interest
thereon by sixty (60) equal monthly instalments of such amount as
determined by the Lender. The first of such instalments shall be repaid on
1 February 2000 and subsequent instalments shall be repaid at monthly
intervals from that date until all such Loans and interest thereon are
repaid in full; and
9.3 The Borrower shall repay all the Loans under TL 3 by twelve (12) equal
quarterly instalments of such amount as determined by the Lender. The
first of such instalments shall be repaid on 1 February 2000 and
subsequent instalments shall be repaid at three (3) monthly intervals from
that date until all such Loans are repaid in full.
10. PREPAYMENT OF THE TERM LOAN FACILITIES
10.1 The Borrower may, on giving not less than ten (10) Business Days' prior
written notice to the Lender and upon paying the prepayment fee stipulated
in Clause 10.2, prepay any Loan under TL 1 and TL 3 in whole or in part on
the last day of an Interest Period for that Loan. Any such prepayment
shall be applied against the instalments for repayment of the Loans under
TL 1 and/or TL 3 (as the case maybe) as specified in Clause 9 in inverse
order of maturity.
10.2 The sums payable to the Lender by the Borrower upon the exercise of the
right of prepayment as aforesaid in respect of TL 1 and TL 3 shall
include:-
10.2.1 all interest accrued on the amount prepaid up to the date of
prepayment and all charges and other sums then due and payable
under TL 1 or, as the case may be, TL 3 as herein provided; and
10.2.2 a premium computed on the amount prepaid at the rate of zero point
five per cent (0.5%) flat.
10.3 The Borrower may on giving not less than thirty (30) Business Days' prior
written notice to the Lender, prepay in advance, any Loan under TL 2 in
whole or in part (but, if in part, in integral multiples of Singapore
Dollars One Thousand (S$1,000.00) together with interest accrued thereon
up to the date of prepayment and all charges and other sums then due and
payable under TL 2 as provided in this Agreement save that any payments
made under this sub-clause shall not affect the amount of monthly
instalments payable to the Lender under Clause 9.2 but shall reduce the
number of instalments thereof. Any such prepayment shall be applied
against the instalments for repayment of the Loans and interest under TL 2
as specified in Clause 9.2 in inverse order of maturity.
10.4 Save as expressly provided in this Clause, the Borrower shall not be
entitled to repay or prepay any of the Term Loan Facilities or any part
thereof.
10.5 Any notice of prepayment shall be irrevocable and shall oblige the
Borrower to make the prepayment. Without prejudice to the Lender's rights
under this Agreement, if the Borrower shall fail to make such prepayment
when due, the Borrower shall be liable to pay default interest to the
Lender on all such unpaid amounts at the applicable Default Interest Rate.
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10.6 No partial prepayment of any sum under the Term Loan Facilities shall
relieve the Borrower of its obligations under this Agreement except to the
extent of the amount prepaid.
10.7 Any amount of the Term Loan Facilities repaid or prepaid shall not be
redrawn, reborrowed or exchanged.
11. COMMITMENT FEE AND CANCELLATION FEE FOR THE FACILITIES
11.1 The Borrower shall pay to the Lender a commitment fee of zero point five
per cent (0.5%) per annum on the undrawn amounts of:-
(a) TL 1 calculated from the date of acceptance of TL 1 until the date of
full utilisation or cancellation of TL 1; and
(b) TL 3 calculated from the date of acceptance of TL 3 until the date of
full utilisation or cancellation of TL 3,
the amount of such commitment fees shall accrue daily and shall be
calculated on the basis of a 365 day year for TL 1 and a 360 day year for
TL 3 and the actual number of days elapsed. The amount of commitment fees
so accruing from time to time shall be paid in arrears on such date or
dates as the Lender may in its discretion stipulate.
11.2 11.2.1 The Borrower may at any time before the last day of the relevant
Availability Period for TL 1 and TL 3, by giving to the Lender
prior written notice and upon payment of the cancellation fee
stipulated in Clause 11.2.2, cancel all or any part of TL 1 and
TL 3 which have not been drawn down.
11.2.2 A cancellation fee equivalent to zero point five per cent (0.5%)
shall be payable by the Borrower on any amount of TL 1 and/or TL 3
cancelled pursuant to Clause 11.2.1 or deemed to be cancelled
pursuant to Clause 7.5 by the Borrower.
11.2.3 No part of TL 1 and TL 3 which has been cancelled or deemed
cancelled may be redrawn or re-borrowed.
11.2.4 Any notice of cancellation shall be irrevocable.
12. FRONT-END FEE
The Borrower shall pay to the Lender a non-refundable front-end fee
calculated at zero point five per cent (0.5%) of the aggregate amount of the
Term Loan Facilities not later than 30 April 1999.
13. DEFAULT INTEREST
In the event of failure by the Borrower to make payment on the due date of
any sum due under this Agreement (whether by way of a payment, repayment or a
prepayment of any principal, interest, commission, costs, fees, charges, or
otherwise) then subject always to and without prejudice to the other rights and
remedies of the Lender contained in the Facility Documents, the Borrower shall
(to the fullest extent permitted by applicable law) pay to the Lender interest
on all such overdue amounts at the applicable Default Interest Rate so long as
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the same remains unpaid calculated on a daily basis on a 360 day year (for
amounts denominated in US Dollars) and a 365 day year (for amounts denominated
in Singapore Dollars) and compounded monthly from and including the due date
thereof to but excluding the day of actual payment as well after as before
judgment, if any, is obtained in respect thereof. The Borrower shall pay any
interest accrued on any overdue sum (including sums payable under this
sub-clause) on the last Business Day of the month in which such interest
accrued, failing which such interest shall be added to the overdue sum and
itself bear interest accordingly.
14. PAYMENTS
14.1 All payments, repayments and prepayments to be made by the Borrower
pursuant to this Agreement shall be made by the Borrower not later than
10.00 a.m. on the due day in the currency in which the amount due is
denominated to such account or accounts as the Lender may from time to
time designate by notice to the Borrower or in such manner as the Lender
may direct. If such payments, repayments and prepayments are:-
14.1.1 in US Dollars, they shall be made in same day funds (or such other
funds as the Lender determines to be customary in New York City
for the settlement in New York City of international banking
transactions in US Dollars); and
14.1.2 in any other currency, they shall be made in immediately available
funds, at such place of payment notified by the Lender to the
Borrower.
14.2 If any sum shall become due for payment hereunder on a day which is not a
Business Day, such payment shall be made on the next succeeding Business
Day, unless that succeeding Business Day falls within the next month, in
which case such payment shall be made on the preceding Business Day and
interest shall be adjusted accordingly.
14.3 If the amount received by the Lender from the Borrower on any date shall
be less than the total sum due or overdue from the Borrower on that date,
the Borrower waives any right it may have to make any appropriation of
such amount and the Lender shall apply that amount in such order as the
Lender shall determine.
15. TAXES
15.1 All sums payable by the Borrower under the Facility Documents shall be
paid (i) free of any restriction or condition, (ii) free and clear of and
(except to the extent required by Singapore law) without any deduction or
withholding on account of any taxes, levies or any other charges
whatsoever imposed by Singapore law (including but not limited to any
goods and services tax) present or future and (iii) without deduction or
withholding (except to the extent required by Singapore law) on account of
any other amount, whether by way of set-off counterclaim or otherwise.
15.2 If (i) the Borrower or any other person on behalf of the Borrower is
required by Singapore law to make any payment deduction or withholding on
account of any such tax or other amount from any sum paid or payable by
the Borrower to the Lender or any sum received or receivable by the Lender
under any of the Facility Documents or (ii) the Lender (or any person on
its behalf) is required by Singapore law to make any deduction or
withholding from, or (except on account of tax on the overall net income
of the Lender) any payment on or calculated by reference to the amount of,
any sum received or receivable by the Lender under any of the Facility
Documents:-
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15.2.1 the Borrower shall notify the Lender of any such requirement or
any change in any such requirement as soon as practicable after
the Borrower becomes aware of it;
15.2.2 the Borrower shall pay any such taxes, levies, charges or other
amount before the date on which the penalties attach thereto, such
payment to be made, if the liability to pay is imposed on the
Borrower, for its account, or otherwise on behalf of and in the
name of the Lender (if the liability to pay is imposed on the
Lender);
15.2.3 the sums payable by the Borrower shall (except, in the case of any
such payment, to the extent that the Borrower's amount is not
ascertainable when that sum is paid) be increased to the extent
necessary to ensure that, after the making of that deduction,
withholding or payment, the Lender receives on the due date and
retains (free from the liability in respect of any such deduction,
withholding or payment) a net sum equal to what the Lender would
have received and so retained had no such deduction, withholding
or payment been required or made; and
15.2.4 within fourteen (14) days after paying any sum from which the
Borrower is required by law to make any deduction or withholding,
and within fourteen (14) days after the due date of payment of any
taxes, levies, charges or the amount which the Borrower is
required by Clause 15.2.2 above to pay, the Borrower shall deliver
to the Lender evidence of such deduction, withholding or payment
and of the remittance thereof to the relevant taxing or other
authority.
15.3 Without prejudice to the generality of the foregoing, in the event that
any goods and services tax or value added tax or any other taxes levies or
charges whatsoever now or hereafter required by law to be paid on or in
respect of any sums payable to the Lender under or relating to any of the
Facility Documents or the banking facilities granted to the Borrower, the
same shall (except to the extent prohibited by law) be borne by the
Borrower and the Borrower shall pay to the Lender on demand a sum
equivalent to the amount of such goods and services tax or value added tax
or other taxes, levies or charges (or such part thereof which the law does
not prohibit the Lender from collecting from the Borrower) less any such
part thereof as has been paid by the Borrower under Clause 15.2, in
addition to all other sums payable to the Lender under the Facility
Documents and the Borrower shall indemnify the Lender against all payment
of such amounts.
15.4 The obligations of the Borrower under this Clause 15 shall survive the
repayment of the Total Indebtedness and the termination of the Facility
Documents.
16. CHANGE IN CIRCUMSTANCES
16.1 If at any time the Lender determines that it is or will become unlawful or
contrary to any directive of any agency of Singapore for the Lender to
allow all or any part of the Facilities or any other moneys to remain
outstanding, to make, fund or allow to remain outstanding all or any part
of the Facilities and/or to carry out all or any of its other obligations
under any of the Facility Documents and/or to charge or receive interest,
fee or commission at the rate or rates applicable, the Lender shall
promptly notify the Borrower to that effect and upon such notification to
the Borrower the obligation of the Lender to make available the Facilities
shall cease to the extent necessary to comply with the relevant law or
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directive and the Borrower shall procure the release of all Letters of
Credit which are then still in force or pay to the Lender such sums as are
required to enable the Lender to procure such release and prepay without
premium or penalty all moneys owing to the Lender under this Agreement on
the date necessary to comply with the relevant law or directive (but
without prejudice to Clause 23 which shall nevertheless apply).
16.2 If the Lender determines that, as a result of (a) the introduction of or
any change in, or in the interpretation or application of any law
regulation or treaty of Singapore or (b) compliance by it with any
directive of any agency of Singapore:-
16.2.1 the cost to the Lender of making available the Facilities or of
making, maintaining or funding all or any part of the Facilities
is increased; and/or
16.2.2 any sum received or receivable by the Lender under this Agreement
or the effective return to it under this Agreement is reduced
(except on account of tax on its overall net income); and/or
16.2.3 the Lender makes any payment (except on account of tax on its
overall net income) or foregoes any interest fee or other return
on or calculated by reference to the amount of any sum received or
receivable by it under this Agreement,
the Borrower shall indemnify the Lender against that increased cost,
reduction, payment or foregone interest or other return (except to the
extent that the Lender has already been compensated therefor by an
increase in the relevant interest rate) and, accordingly, shall from time
to time on demand (whenever made) pay to the Lender for its own account
the amount certified by it to be necessary so to indemnify it and any such
certificate shall contain in reasonable detail the basis and calculation
of the amount the Borrower is liable to indemnify the Lender under this
Clause 16.2 Provided that this Clause 16.2 shall not apply to TL 2.
17. SET-OFF AND DEBIT OF ACCOUNT
17.1 In addition to any banker's lien, right of set-off or other right which
the Lender may have, the Lender shall be entitled at any time at its
absolute discretion and without prior notice to the Borrower, to combine
or consolidate all or any of the accounts of the Borrower with the Lender
including accounts of the Borrower either alone or jointly with others
(whether current, deposit, savings or of any other nature whatsoever, and
whether in Singapore Dollars or other currency) wheresoever situate (in
Singapore or elsewhere) and set-off or transfer any sum standing to the
credit of any one or more such accounts in or towards satisfaction of any
moneys owing by and any obligations and liabilities of the Borrower to the
Lender on any other account (whether in Singapore or elsewhere) and
whether such liabilities be actual, contingent, liquidated, unliquidated,
primary, collateral, several or joint and where the Borrower's liabilities
are contingent, the Lender shaft be entitled to set aside such amounts to
keep the Lender in funds for fully meeting and discharging its
liabilities. Where such combination, set-off or transfer requires the
conversion of one currency into another, the Lender is hereby authorised
to effect such conversion at the Lender's own rate of exchange then
prevailing and in accordance with its normal practice. The Lender shall
notify the Borrower in writing as soon as practicable after any
combination set-off or transfer is effected.
17.2 Without prejudice to the other provisions of this Agreement, the Lender
shall be entitled
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at its absolute discretion to debit at any time and from time to time
without prior notice to the Borrower, the current account or any other
account of the Borrower with the Lender (whether in Singapore or
elsewhere) for all or any moneys whether for principal, interest, default
interest, commission, costs, fees charges or any other moneys due and
payable by the Borrower under the Facility Documents including insurance
premia, legal fees, stamp duty, travelling expenses, governmental or
statutory levies and taxes and any other costs charges and expenses which
the Borrower is liable to pay under any provisions of any of the Facility
Documents but the Lender shall promptly on or after such debiting notify
the Borrower of such debiting Provided always that such debiting shall not
constitute nor be deemed to be payment of any moneys to which it relates
(except to the extent of any amount in credit in the said current account
or other account of the Borrower with the Lender) nor shall it be deemed a
waiver of a Potential Event of Default or an Event of Default.
18. REPRESENTATIONS AND WARRANTIES
18.1 The Borrower hereby represents and warrants to and for the benefit of the
Lender as follows:-
18.1.1 that the Borrower is a company duly incorporated and validly
existing under the laws of Singapore and has full power and
authority and the legal rights to own assets and to conduct the
business which it conducts and to xxx and be sued in its own
name;
18.1.2 that the Borrower has full corporate power and authority and the
legal rights to enter into and execute the Facility Documents,
exercise its rights and perform and comply with its obligations
under the Facility Documents;
18.1.3 that the Borrower has taken or obtained all necessary corporate
and other action to authorise the execution and delivery of the
Facility Documents and the consummation and performance of the
transactions contemplated by such Facility Documents and no
limitation on its powers will be exceeded as a result of the
transactions to be undertaken pursuant to the Facility Documents;
18.1.4 that the Facility Documents constitute legal, valid and binding
obligations of the Borrower and are enforceable in accordance
with their terms;
18.1.5 that the certified copies of the Memorandum and Articles of
Association and the board resolutions of the Borrower delivered
to the Lender for the purpose of Clause 4 are true accurate
complete and up to date copies of the corporate records of the
Borrower as at the date of such delivery;
18.1.6 that all action, conditions and things required to be taken,
fulfilled and done including the obtaining of any necessary
exchange approvals or any other authorisations, filing,
registration, documentation or claim in order (i) to enable the
Borrower to lawfully enter into, exercise its rights and perform
and comply with its obligations under the Facility Documents,
including without prejudice to the generality to the aforesaid,
its obligations to pay and remit to the Lender all moneys due
under the Facility Documents, (ii) to ensure that those
obligations are legal, valid, binding and enforceable, (iii) to
ensure that those obligations will at all times rank in
accordance with Clauses 18.1.12 and 19.1.9, and (iv) to ensure
that all necessary steps and/or actions required to
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make the Facility Documents admissible as evidence in the courts
of Singapore have been taken, done, fulfilled and obtained and
there has been no default in the observance of the conditions or
restrictions (if any) imposed in or in connection with any of the
same;
18.1.7 that the audited financial statements of the Borrower which have
been submitted to the Lender under this Agreement were prepared
in accordance with applicable laws and regulations of Singapore
and in accordance with generally accepted accounting practices
and principles applied on a consistent basis and are complete and
correct and fairly represents the financial condition of the
Borrower and the result of its operations for the period stated;
18.1.8 that the statements, documents and information supplied in
writing by the Borrower to the Lender and EDB concerning the
Property, the Borrower, its accounts, businesses or operations
(including any cash flow or other projections, appraisals,
reports and forecasts) and all related matters required under the
Facility Documents are to the knowledge of the Borrower (having
made all enquiries) true and correct in all material respects and
do not contain any material mis-statement of fact or omit to
state any material fact and were made after due and careful
consideration on the Borrower's part or on the part of its agents
and are, in the Borrower's considered opinion, fair and
reasonable in the circumstances prevailing at the time when such
projections, appraisals, reports or forecasts were made in the
light of the assumptions made, and the Borrower is not aware of
any fact or circumstances which if disclosed would necessitate a
material revision to any such projections, appraisals, reports or
forecasts, or which might adversely affect the Lender's decision
on whether or not to make the Facilities available to it or to
maintain its Facilities;
18.1.9 that there is no provision of (i) any existing laws, regulation
or authorisation to which the Borrower is subject to which
materially and adversely affect the Borrower's ability to perform
its obligations under the Facility Agreement, or (ii) any
existing mortgage, trust, deed, contract, licence, permit,
franchise, concession, agreement or treaty binding on the
Borrower which is being or will be contravened or breached by the
acceptance by the Borrower of the Facilities or the execution of
the Facility Documents by the Borrower or by the Borrower's
performance or observance of any of its obligations under the
Facility Documents and which will result in an Event of Default
or which will result in the creation of or oblige the Borrower to
create an encumbrance in respell of any of its assets or
property;
18.1.10 that the Borrower is not in default in the payment or performance
of any of its obligations for borrowed money exceeding a maximum
aggregate of Singapore Dollars One Million (S$1,000,000.00) at
any time;
18.1.11 that, save (i) as previously disclosed in writing to and agreed
by the Lender, (ii) for the CTB Securities and (iii) for the
encumbrances and charges in favour of Citibank NA. and United
Overseas Bank Limited which will be discharged by the Borrower
prior to the utilisation of the Facilities, no encumbrance exists
over all or any part of the properties, undertaking, assets and
revenues of the Borrower or any assets comprised in the
Securities;
18.1.12 that the claims of the Lender against the Borrower under this
Agreement and
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the Securities will rank at least pari passu in right and
priority of payment with all the other present and future
unsecured indebtedness of the Borrower except those claims
preferred by any bankruptcy, insolvency, liquidation or other
similar laws affecting creditors' rights generally;
18.1.13 that no Event of Default and no Potential Event of Default (other
than any waived) has occurred and is continuing;
18.1.14 that there are no litigation, arbitration or administrative
proceedings pending, current or to the knowledge of the Borrower,
threatened against or affecting the Borrower or the Borrower's
assets which will materially and adversely affect the Borrower's
ability to perform its obligations under any of the Facility
Documents;
18.1.15 that no steps have been taken or are being taken to appoint
either a receiver, liquidator, administrator, trustee, judicial
manager or similar officer to take over the assets of the
Borrower or to wind up the Borrower;
18.1.16 that there is no material adverse change in the business, assets
or financial condition of the Borrower from that set forth in the
latest financial statements submitted to the Lender by it
pursuant to Clause 19.1.6;
18.1.17 that neither the Borrower nor any of the assets of the Borrower
are entitled to immunity from suit, execution, attachment or
other legal process and the Borrower's entry into the Facility
Documents and the exercise of the Borrower's rights and
performance of its obligations under the Facility Documents
constitute private and commercial acts performed for private and
commercial purposes;
18.1.18 all authorisations required from any governmental or other
authority or from any shareholders or creditors of the Borrower
for or in connection with the execution, validity and performance
of the Facility Documents have been obtained and are in full
force and effect;
18.1.19 that, save as previously disclosed in writing to and agreed by
the Lender, the Borrower is the legal and beneficial owner of the
Property and of all the undertaking, assets and property
comprised in the Securities;
18.1.20 that the Borrower has complied with all the terms and conditions
of the Scheme and the JTC Consent which at the relevant time is
or are required to be complied with by the Borrower.
18.2 Each of the representations and warranties (except Clause 18.1.5)
contained in the Clause 18.1 shall be true and correct in all material
respects when deemed repeated on each Interest Payment Date.
18.3 The Borrower acknowledges that the Lender, has entered into this Agreement
in reliance upon the representations and warranties contained in this
Clause.
19. AFFIRMATIVE UNDERTAKINGS
19.1 The Borrower hereby undertakes to and agrees with the Lender that so long
as any
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moneys remain to be lent or remain payable under this Agreement and
the Securities:-
19.1.1 the Borrower shall maintain its corporate existence and will
carry on and conduct its business in such a manner so as not to
affect its ability to perform any of its obligations under the
Facility Documents;
19.1.2 the Borrower shall procure that the Facility Documents are and
will be maintained in full force and effect and shall obtain:-
(a) all such authorisations, licences and consents which are or
may become necessary for the Borrower to perform its
obligations under the Facility Documents and to comply with
and observe all terms, conditions and restrictions (if any)
imposed in connection with any of the foregoing and maintain
or accomplish any filing, registration, documentation or
claim with any court, judicial, administrative or
governmental agency or other authority or person which may
be or become necessary for such purposes; and
(b) maintain in full force and effect all such authorisations,
licences and consents as are referred to in Clause 18 and
take immediate steps to obtain and thereafter maintain in
full force and effect any other authorisations which may
become necessary or advisable for the purposes stated
therein;
19.1.3 the Borrower shall from time to time on request by the Lender and
at the Borrower's own expense, execute, sign, perfect, do and
procure the doing of and if required register every document, act
or thing as in the opinion of the Lender may be necessary for
giving full effect to the Facility Documents or securing to the
Lender the full benefits of all rights, powers and remedies
conferred upon the Lender in the Facility Documents;
19.1.4 in so far as may be necessary, the Borrower shall amend its
Memorandum and Articles of Association and any other corporate
documents so as to enable the Borrower to observe and perform all
the covenants, undertakings, terms, stipulations, conditions and
other provisions of the Facility Documents;
19.1.5 the Borrower shall use the Facilities exclusively for the
purposes specified in Clause 3;
19.1.6 the Borrower shall:-
(a) furnish to the Lender annually and in any event not later
than six (6) months after the close of each financial year
of the Borrower beginning with the current financial year,
certified copies of the Borrower's audited financial
statements, in each case including a balance sheet and a
profit and loss account together with its directors' reports
for the period then ended prepared in accordance with
generally accepted accounting practices and principles
consistently applied in Singapore and certified by an
internationally recognised firm of independent accountants
acceptable to the Lender;
(b) furnish to the Lender not later than thirty (30) days after
the relevant
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period, certified copies of the Borrower's interim unaudited
financial statements, in each case including a balance sheet
and a profit and loss account relating to the Borrower
containing financial information (in no less detail than
those which had been prepared prior to the date of this
Agreement) in respect of successive quarterly periods during
the Borrower's financial years;
(c) furnish to the Lender as soon as they are available and in
any event not later than thirty (30) days after the end of
each yearly period of this Agreement, a certificate signed
by one of its directors certifying that there did not and
does not exist any Event of Default or Potential Event of
Default as at the end of such yearly period (or if an Event
of Default or Potential Event of Default did exist, setting
out details of the same and of any action taken or proposed
to be taken to remedy it);
(d) promptly furnish and provide the Lender with and permit the
Lender to obtain all such statements, information,
explanations and data (except information of a confidential
or proprietary nature) as the Lender may reasonably require
regarding the affairs, operations, administration, financial
or corporate state or condition of the Borrower or any of
the matters in this Clause 19 mentioned, and without
prejudice to the generality of the foregoing, the Borrower
shall allow EDB's representatives to examine and make copies
of all records of the Borrower relating to the Facilities;
(e) promptly notify the Lender of any material adverse change in
the condition (financial or otherwise) of the Borrower and
of any litigation, action, proceedings or claim being
threatened or initiated against the Borrower before any
court, tribunal, arbitrator or administrative agency or any
other matter, and in all cases, which might materially and
adversely affect the operations or financial condition of
the Borrower or the Borrower's ability to perform its
obligations under any of the Facility Documents; and
(f) immediately notify the Lender of the occurrence of any Event
of Default or Potential Event of Default after becoming
aware thereof;
19.1.7 the Borrower shall immediately upon the occurrence of the event
concerned notify the Lender of:-
(a) the giving of notice by the Borrower to convene a general
meeting for passing any resolution to wind up the Borrower;
or
(b) the filing of any application for placing the Borrower under
any scheme with a view to readjustment, rescheduling or
deferral of its indebtedness generally or under the judicial
management of a judicial manager or any analogous or
equivalent process which they have in the courts of
Singapore or in any other jurisdiction in which the Borrower
carries on business; or
(c) the filing of any petition for liquidation or winding-up of
the Borrower.
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Where such notification as aforesaid is given verbally by
the Borrower to the Lender, the Borrower shall confirm the
same in writing within twenty-four (24) hours thereof;
19.1.8 the Borrower shall deliver to the Lender upon demand any
documents or evidence under the provisions hereof the production
of which has been waived and to comply with all the terms and
conditions of any provisions hereof which have been waived;
19.1.9 the Borrower shall ensure that at all times the claims of the
Lender against the Borrower under this Agreement and the
Securities shall rank at least pari passu in right and priority
of payment with all its other present and future unsecured
indebtedness;
19.1.10 after the occurrence of an Event of Default, the Lender shall be
entitled after prior notification to the Borrower to enter into
and upon its premises and the Property and inspect the same and
all property and assets whatsoever therein or thereon and to
inspect all the records and statements of the Borrower and all
the assets, property and undertaking comprised in the Debenture
wherever the same may be situate and to make inventories, records
or copies thereof and the Borrower shall give the Lender such
written authorities or other directives and provide such
facilities and access as the Lender may require for the aforesaid
inspection and the Borrower agrees to pay all reasonable costs
and expenses (including any travelling expenses) which the Lender
may incur in connection with the inspection;
19.1.11 the Borrower shall maintain a positive networth of not less than
US Dollars Forty-Two Million (US$42,000,000.00) at all times. For
the purpose of this Clause, "networth" means at any time in
respect of the Borrower the amount calculated in accordance with
generally accepted accounting principles in Singapore of the
aggregate at the time of (i) the amounts paid up or credited as
paid up in respect of its issued share capital, and (ii) its
retained earnings less the aggregate at that time of (a) all
losses carried forward to the extent to which the same have not
been taken into account in the computation of retained earnings,
(b) the amount of any deficit in reserves and excluding any
surplus arising from a revaluation of the assets of the Borrower
and (c) any amount attributable to goodwill;
19.1.12 the Borrower undertakes with the Lender that at all times its
financial position shall be such that Net Borrowings shall not
exceed one hundred per cent (100%) of networth. For the purposes
of this sub-clause, the expressions:-
(a) "networth" has the same meaning as in Clause 19.1.11;
(b) "Net Borrowings" at any time means the aggregate Financial
Indebtedness of the Borrower (including without limitation
overdue interest and the capitalised element in accordance
with generally accepted accounting principles in the
Republic of Singapore of outstanding commitments under
finance leases);
(c) "Financial Indebtedness" means indebtedness incurred in
respect of:
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(i) money borrowed or raised;
(ii) any xxxx, xxxx of exchange, note, loan stock,
debenture, commercial paper or similar security or
instrument;
(iii) acceptance, documentary credit or guarantee
facilities;
(iv) deferred payments for assets or services acquired
but excluding trade credit in the ordinary course of
business not exceeding ninety (90) days;
(v) rental payments so far as attributable to payments
of capital under finance leases, whether in respect
of land, building, machinery, equipment or
otherwise;
(vi) payments under hire purchase contracts;
(vii) factored debts, to the extent that there is
recourse;
(viii) guarantees, bonds, standby letters of credit or
other instruments issued in connection with the
performance of contracts or obligations;
(ix) guarantees, indemnities or other assurances against
financial loss in respect of indebtedness of any
person falling within any of paragraphs (i) to
(viii) inclusive above; and
(x) amounts raised or obligations incurred under any
other transaction having the commercial effect of
any of the above.
19.1.13 the Borrower will conduct through the Lender a reasonable amount
of banking transactions and unless otherwise agreed all banking
transactions including foreign exchange) involving purchase of
goods financed out of the proceeds of the Facilities;
19.1.14 notwithstanding Clause 19.1.10, the Lender shall have the right
after prior appointment with the Borrower to inspect the
machinery and equipment set out in Schedules 2 and 3 and, if
requested by the Lender, EDB's representatives shall have the
right to inspect the machinery and equipment set out in Schedule
2, and all machinery plant and equipment on order prior to their
despatch from the supplier to the Borrower and/or at any time
thereafter;
19.1.15 the Borrower shall comply and observe all the terms and
conditions as are set out or varied from time to time by EDB in
respect of the Scheme;
19.1.16 the Borrower shall obtain all necessary licences and comply with
all laws and regulations rules and orders relating to the
carrying on of its business;
19.1.17 the Borrower shall at all times fully comply with all the terms
condition stipulations and undertakings contained in the Building
Agreement, the Lease and the JTC Consent;
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19.1.18 the Borrower shall duly pay all property taxes from time to time
levied upon the Property prior to the date on which penalties
become attached thereto;
19.1.19 the Borrower will, unless otherwise agreed by the Lender in
writing, take out and maintain or cause to be taken out and
maintained all risks policies of insurance in the joint names of
the Borrower and the Lender with an insurance company nominated
or selected by the Lender, fully insuring the Property and all
machinery and equipment financed or to be financed from the
Facilities against, inter alia, loss or damage by fire,
lightning, riots, extraneous perils and all other risks commonly
covered with respect to properties and business of a similar kind
and such policies shall be in such amounts and shall contain such
terms and provisions as shall be reasonably approved by the
Lender, and shall contain standard mortgagee clauses naming as
loss payee the Lender and the policies shall be delivered to and
retained by the Lender; that the Borrower will punctually pay all
premiums payable in respect of the said policies of insurance and
submit to the Lender copies of the receipts for such payments and
will, in respect of premiums payable for renewal of such
policies, pay the premiums before the expiry dates of the
policies and submit to the Lender copies of the receipts for
every such payment not less than three (3) Business Days before
such expiry date, and if the Borrower fails to comply with the
provisions of this sub-clause the Lender may at its discretion
(but without any obligation on its part to do so) have such
insurance effected at the cost of the Borrower and all moneys
paid by the Lender in respect of such insurance shall on demand
be repaid by the Borrower to it and until repayment shall be
added to the principal moneys secured by the Securities and bear
interest at the applicable Default Interest Rate and all other
statutory powers of insurance for the said moneys so paid by the
Lender as aforesaid may be exercised by the Lender;
19.1.20 the Borrower will not, except with the consent of the Lender,
effect or keep on foot any insurance against any risk in respect
of any building or structure on the Property where any insurance
hereinbefore mentioned has been effected or kept on foot;
19.1.21 all moneys received or receivable under any of the policies of
insurance taken for the machinery and equipment financed from the
Facilities by whomsoever effected shall be paid to the Lender and
applied towards making good the loss or damage incurred or at the
election of the Lender towards payment to the Lender in reduction
of the Total Indebtedness in such manner as the Lender may agree
and if any such moneys are received by the Borrower the Borrower
shall hold the same in trust for the Lender and pay it promptly
to the Lender or as the Lender shall direct and the Lender may
receive and give a good discharge for any such moneys;
19.1.22 all moneys received or receivable under any of the policies of
insurance taken for the Property by whomsoever effected shall be
paid to the Lender and applied towards reinstatement of the
Property (unless JTC permits otherwise in which event such moneys
may be applied by the Lender towards reduction of the Total
Indebtedness in such manner as the Lender may agree) and if any
such moneys are received by the Borrower the Borrower shall hold
the same in trust for the Lender and pay it promptly to the
Lender or as the Lender shall direct and the Lender may receive
and give a good discharge for any such
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moneys;
19.1.23 the Borrower shall, within seven (7) days of the receipt
thereof, give to the Lender full particulars of any notice,
order, permission or proposal given issued or made to the
Borrower affecting the Property by or on behalf of any planning,
local government, public health, sanitary, housing or other
authority and which in the reasonable opinion of the Lender
could materially affect the Property and if so required by the
Lender produce such notice, order, permission or proposal to the
Lender together with such copies thereof as the Lender may
reasonably require and also within the period prescribed by such
notice, order, permission or proposal take all reasonable or
necessary steps to comply with the provisions of such notice,
order, permission or proposal and also at the reasonable request
of the Lender and at the costs of the Borrower make or join with
the Lender in making such objection or representation against or
in respect of any such notice, order, permission or proposal as
the Lender shall reasonably deem expedient;
19.1.24 the Borrower shall execute all deeds, agreements, assignments or
confirmation and also all other things as may be necessary to
assign to the Lender all the rights, benefits and interest in
any agreement that the Borrower may execute with JTC.
20. NEGATIVE UNDERTAKINGS
The Borrower undertakes that, so long as any moneys remain to be lent or
remains payable under this Agreement and the Securities, it shall not, without
the Lender's prior written consent (which consent shall not be unreasonably
withheld):-
20.1 sell, transfer or otherwise assign, deal with or dispose of all or any
part of its business (whether outright by a sale and repurchase or sale
and leaseback arrangement or otherwise) or (except (i) as permitted under
the terms of this Agreement or any of the Securities or (ii) for good
consideration in the ordinary course of its business or (iii) for
disposal of obsolete assets, or production assets no longer required for
the purpose of the Borrower's business, in each case, for cash on normal
commercial terms or (iv) payment of cash as consideration in the
acquisition of any asset on normal commercial terms or (v) for disposals
of non-production assets where the aggregate value of such assets
disposed of in a financial year does not exceed Singapore Dollars One
Hundred Thousand (S$100,000.00) in the total) its assets or property or
revenues, whether by a single transaction or a number of transactions
whether related or not and whether voluntarily or involuntarily;
20.2 redeem any of the Borrower's issued shares or reduce the Borrower's
registered and paid up share capital;
20.3 create or agree or permit to subsist or arise any encumbrance whatsoever,
whether fixed or floating or otherwise howsoever, on or over or all or
any part of the Property or any of the Borrower's other properties or
assets or revenues or any part thereof, both present and future
whatsoever and wheresoever situate except that the foregoing prohibitions
shall not apply to (i) pledges of goods, the related document of title
and/or other related documents as security for indebtedness directly
relating to such goods or documents on or over which that pledge exists,
(ii) security arising out of title retention provisions in a supplier's
standard conditions of supply of goods purchased by the Borrower in its
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ordinary course of business and (iii) any encumbrance created by the
Securities and the CTB Securities;
20.4 enter into any agreement or obligation which could materially and
adversely affect the ability of the Borrower to perform its obligations
under the Facility Documents;
20.5 make any substantial alterations to the nature of the business of the
Borrower from that carried on at the date of this Agreement or amend or
alter any of the provisions in the Borrower's Memorandum and Articles of
Association or any corporate documents relating to the borrowing powers
and principal business activities of the Borrower;
20.6 terminate any of the principal businesses of the Borrower as now
conducted;
20.7 effect, carry out, undertake or permit any form of re-construction,
re-organisation, amalgamation, take-over or permit any change of the
shareholdings held by Xxxx Xxxxx-Xxx who must at all times own
beneficially, not less than nine per cent (9%) of the issued and paid-up
share capital of the Borrower or any scheme of arrangement or compromise
or any other scheme affecting its existing constitution or structure of
share holdings except that the foregoing prohibition shall not apply to
the listing of the shares of the Borrower for quotation on the official
list of The Stock Exchange of Singapore Limited;
20.8 borrow or in any way obtain loans or advances or raise money or credit
from any other bank;
20.9 make advances or loans to any person whatsoever or provide guarantees or
indemnities to secure advances or loans to any person whatsoever or be in
any manner directly or indirectly or contingently liable for any
indebtedness or other obligation of any person except to or for the
benefit of the Borrower's employees;
20.10 factor or assign any of its accounts receivables except pursuant to the
CTB Securities;
20.11 make any change or variations to the Building Agreement the Lease or the
JTC Consent; and
20.12 lease or licence or agree to let, lease or licence or part with
possession of the Property or any part thereof save as previously
disclosed in writing to and agreed by the Lender.
21. DEFAULT IN PAYMENT OF EXPENSES
In addition to and not in derogation of the other provisions of this
Agreement, if the Borrower shall fail or refuse to pay any insurance premia,
legal fees, stamp duty, travelling expenses and other commission, costs, fees,
charges and expenses which the Borrower is liable to pay under any provision of
the Facility Documents the Lender may at its discretion after giving not less
than three (3) days' notice to the Borrower (such notice will not be required
for any payment of insurance, stamp duty, taxes and JTC's and any governmental
authority's costs, charges and expenses) pay the same (but shall not be under
any obligation to do so) and if such payment is made by the Lender the Borrower
shall forthwith on demand repay the same to the Lender together with interest
thereon at the applicable Default Interest Rate or such other rate as may be
prescribed from time to time by the Lender calculated from the date of payment
thereof up to the date of repayment (as well after as before judgment), and
until so repaid shall be subject to and secured by this Agreement and the
Securities held by the Lender.
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22. EVENTS OF DEFAULT
22.1 Upon the happening of any of the following events:-
22.1.1 if the Borrower does not pay any moneys (whether principal
interest or otherwise) payable by it under the Facility Documents
at the place at and in the currency and funds in which it is
expressed to be payable when it is due or otherwise in accordance
with the provisions thereof provided that such failure shall not
be an Event of Default if (i) it occurs by reason only of
technical difficulties affecting the transfer of funds from the
Borrower and (ii) the Lender receives such sum within three (3)
days after it is due or payable otherwise in accordance with the
provisions thereof; or
22.1.2 if the Borrower commits or threatens to commit a breach of any of
the covenants, undertakings, stipulations, terms and conditions
or provisions contained in any of the Facility Documents and in
respect only of a breach which in the reasonable opinion of the
Lender is capable of remedy such breach is not rectified within
fourteen (14) days after notice of such breach has been given by
the Lender to the Borrower; or
22.1.3 if any representation or warranty made by the Borrower in or in
connection with any of the Facility Documents or any of the
documents called for under any of the Facility Documents is
incorrect or untrue in any material respect at the time it was
made or reported or deemed to have been made or reported or
ceases to be true and correct in any material respect; or
22.1.4 if any of the accounts of the Borrower delivered to the Lender
under Clause 19.1.6 are qualified in a manner or to an extent
unacceptable to the Lender; or
22.1.5 if any other indebtedness of the Borrower for borrowed moneys
shall not be paid at its stated maturity or by reason of its
default shall become due or be declared due prior to its stated
maturity or any creditor of the Borrower becomes entitled to
declare any indebtedness of the Borrower for borrowed moneys due
and payable before its stated maturity; or
22.1.6 if the Borrower becomes insolvent, is unable to pay its debts as
they fall due, stops or suspends payment of all or a material
part of its debts, begins negotiations or takes any proceedings
or other step with a view to readjustment, rescheduling or
deferral of all its indebtedness (or of a material part of its
indebtedness which it will or might otherwise be unable to pay
when due) or proposes or makes a general assignment or an
arrangement or composition with or for the benefit of its
creditors or a moratorium is agreed or declared in respect of or
affecting all or a material part of any indebtedness on the part
of the Borrower for any moneys whatsoever; or
22.1.7 if any competent order is made or step or petition is taken by
any person for the dissolution, winding-up, reorganisation,
reconstruction or insolvency of the Borrower or for the
appointment of a liquidator, receiver, administrator, trustee,
judicial manager or other similar officer over its assets and
undertakings or part thereof except that it shall not be an Event
of Default in the case of a reorganisation or reconstruction
permitted under Clause 20.7; or
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22.1.8 if the Borrower shall cease or threaten to cease to carry on any
of the principal businesses as now conducted or changes or
threatens to change the nature or scope of any of its principal
businesses, whether voluntarily or involuntarily; or
22.1.9 if a distress or execution or other similar or analogous
proceeding is levied or enforced upon or issued against any part
of the properties or assets of the Borrower; or
22.1.10 if any legal, administrative or arbitration proceeding, suit or
action of any kind whatsoever (whether criminal or civil) is
instituted against the Borrower which in the reasonable opinion
of the Lender will materially and adversely affect the ability of
the Borrower to repay the amounts payable to the Lender under any
of the Facility Documents, or the ability of the Borrower to
perform its obligations under any of the Facility Documents; or
22.1.11 if any present or future security on or over all or a material
part of the assets of the Borrower becomes enforceable; or
22.1.12 if the Borrower shall transfer or otherwise dispose of all or any
substantial part of its business or assets except in accordance
with Clause 20.1; or
22.1.13 if any agency of any state threatens to or seizes, compulsorily
acquires, expropriates or nationalises all or any material part
of the assets or properties of the Borrower; or
22.1.14 if it is or will become unlawful for the Borrower to perform or
comply with any one or more of its material obligations under the
Facility Documents; or
22.1.15 if any of the authorisations referred to in any of the Facility
Documents is not obtained or granted or ceases to be in full
force and effect or is modified (unless such authorisation is no
longer required or applicable); or
22.1.16 if there shall occur a material adverse change in the business,
assets or financial position of the Borrower or if in the
reasonable opinion of the Lender the Borrower may be unable to
perform its obligations under any of the Facility Documents and
notice thereof has been given to the Borrower; or
22.1.17 if the Borrower is declared by the Minister to be declared
company under the provisions of Part IX of the Companies Act
(Chapter 50, Singapore Statutes); or
22.1.18 if a notice or proposal for compulsory acquisition of the
Property or any material part thereof shall be issued or made
under or by virtue of an Ordinance Act of Parliament or other
statutory provision; or
22.1.19 if at any time, any act condition or thing required to be done,
fulfilled or performed by the Borrower in order:-
(a) to enable the Borrower to execute and enter into the
Facility Documents and perform and fulfil its obligations
and liabilities in terms thereof;
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(b) to ensure that the Facility Documents constitute legal valid
and binding obligations on the Borrower enforceable against
the Borrower in accordance with its terms;
(c) to ensure that the Facility Documents are admissible in
evidence in Singapore and such other states and countries
that the Lender may require,
is not done, fulfilled or performed; or
22.1.20 the management of the Borrower as at the date of this Agreement
is wholly or substantially displaced or has its authority
curtailed; or
22.1.21 if the security under any of the Securities is in jeopardy and
notice thereof has been given to the Borrower; or
22.1.22 it becomes impossible for the Borrower or any other party to the
Facility Documents to perform any of its obligations thereunder
or for the Lender to exercise all or any of its rights, powers
and remedies thereunder; or
22.1.23 if the Borrower no longer meets the eligibility criteria as
stipulated from time to time by the EDB and becomes ineligible
for assistance under the Scheme,
the Lender may at any time thereafter by notice in writing to the Borrower
declare the Total Indebtedness to be immediately due and payable whereupon
they shall become so due and payable without further demand, notice or
other legal formality of any kind.
22.2 Upon such declaration by the Lender pursuant to Clause 22.1:-
22.2.1 the Lender shall be entitled to apply any credit balance standing
to any account of the Borrower with the Lender and in whatever
currency towards satisfaction of any sum due to the Lender from
the Borrower on any account whatsoever (without prejudice to the
generality of Clause 17);
22.2.2 the Lender's commitment under this Agreement shall automatically
be cancelled and forthwith cease; and
22.2.3 the Borrower shall procure the immediate discharge and
cancellation of all Letters of Credit which are then still in
force or pay to the Lender an amount sufficient for the Lender to
obtain such discharge and cancellation; and
22.2.4 the Lender shall be entitled to exercise forthwith all or any of
its rights, powers or remedies under the Facility Documents
including the power of sale and without prejudice to the
generality of the foregoing, the power of sale shall be
exercisable without any restrictions imposed by section 25 of the
Conveyancing and Law of Property Act (Chapter 61, Singapore
Statutes) and the provisions of that section 25 shall be so varied
and extended in their application to the Securities so that all
the statutory powers may be exercised in accordance with the
provision of this Clause 22.2.
22.3 In the event that any sum of the Total Indebtedness paid by the Borrower
under the Facility Documents is for payment of any amount owing to the
Lender which is of a
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contingent nature ("Earmarked Sum") that Earmarked Sum shall be held by
the Lender with the intent that in the event of the occurrence of that
contingency, the Earmarked Sum shall be utilised towards the discharge of
that contingent liability. If the said contingency eventually does not
occur, the Earmarked Sum shall be returned to the Borrower without
interest.
23. INDEMNITY
23.1 Without prejudice to the foregoing terms and provisions, the Borrower
shall on demand indemnify the Lender and hold the Lender harmless from and
against all losses, expenses, costs or liabilities whatsoever, legal or
otherwise, which the Lender may reasonably sustain, suffer or incur as a
consequence of:-
23.1.1 any failure to borrow any Loan in accordance with a Notice of
Drawing or to proceed with the Letter of Credit in accordance with
a L/C Application or any prepayment of a Loan under TL 1 or TL 3
otherwise than on the last day of an Interest Period relating to
such Loan (if permitted); or
23.1.2 the occurrence of any Event of Default.
23.2 Such losses, expenses, costs or liabilities shall include but not be
limited to such amount as the Lender shall certify (such certification
being conclusive and binding upon the Borrower save for any manifest
error) as being necessary to compensate the Lender for (a) any loss of
interest or commission incurred on account of such default, and (b) any
costs, interest, commission or fees paid or payable on account of any
funds borrowed in order to carry or maintain any unpaid amount including
without limitation any loss which the Lender shall certify as sustained or
incurred by it in maintaining or funding the Facilities or any part
thereof or in liquidating or in re-employing deposits from third parties
acquired to effect or maintain the Facilities or any part thereof as a
consequence of any prepayment of the Facilities or part thereof being made
(for any reason whatsoever) except to the extent that such interest,
commission or fees are recovered under the provisions of this Agreement.
24. CURRENCY INDEMNITY
24.1 The obligation of the Borrower shall be to pay the obligations or
liabilities in the same currency in which the said obligations or
liabilities are incurred ("relevant currency"). Any amount received or
recovered in a currency other than the relevant currency (whether as a
result of, or arising from the enforcement of, a judgment or order of a
court of any jurisdiction, in the dissolution of the Borrower or
otherwise) in respect of any sum expressed to be due to the Lender from
the Borrower under the relevant Facility Document shall only constitute a
discharge to the Borrower to the extent of the relevant currency amount
which the Lender is able, in accordance with its usual practice, to
purchase with the amount so received or recovered in that other currency
on the date of that receipt or recovery (or, if it is not practicable to
make that purchase on that date, on the first date on which it is
practicable to do so).
24.2 If that amount in the relevant currency is less than the relevant currency
amount expressed to be due to the Lender under the relevant Facility
Document, the Borrower shall indemnify the Lender against any loss
sustained by it as a result thereof. In any event, the Borrower shall
indemnify the Lender against the cost of making any such purchase. For,
the purpose of this Clause, it shall be sufficient for the Lender to
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demonstrate that it would have suffered a loss had an actual exchange or
purchase been made.
24.3 These indemnities constitute a separate and independent obligation from
the other obligations in this Agreement, shall give rise to a separate and
independent cause of action, shall apply irrespective of any indulgence
granted by the Lender hereto and shall continue in full force and effect
despite any judgment, order, claim or proof for a liquidated amount in
respect of any sum due under this Agreement or any judgment or order. No
proof or evidence of any actual loss is required.
25. SPECIAL CONSULTANT
25.1 If there shall have arisen circumstances which lead the Lender to
reasonably determine that the Borrower is or will be unable to perform any
of its material obligations under any of the Facility Documents, the
Borrower will, notwithstanding that none of the events mentioned in
Clause 22.1 has occurred, forthwith upon the Lender's request appoint a
Special Consultant nominated by the Lender. In the event of the Borrower
failing to make the appointment, the Lender shall be entitled at its
discretion at any time thereafter to appoint the Special Consultant on the
Borrower's behalf.
25.2 The Lender shall have the full discretion to nominate any person suitably
qualified to be a Special Consultant and, without limiting the generality
of the foregoing, the Lender may for the purpose nominate an accountant,
lawyer, banker or engineer.
25.3 The Special Consultant so appointed (whether by the Borrower or by the
Lender on the Borrower's behalf) shall be the agent of the Borrower and
the Borrower shall be solely responsible for his acts, defaults and
remuneration. The Special Consultant shall perform and carry out all such
duties and functions as the Lender may specify which may, without
limitation, include the following:-
25.3.1 to carry out an audit for the accounts of the Borrower and report
the outcome of such audit to the Lender;
25.3.2 to verify and submit to the Lender a list of the Borrower's
account receivables; and
25.3.3 to verify and submit to the Lender a list of the Borrower's
creditors.
26. WAIVER
26.1 The Lender may from time to time waive either unconditionally or on such
terms and conditions as it may reasonably deem fit any breach by the
Borrower of any of the covenants, undertakings, stipulations, terms and
conditions contained in the Facility Documents and any modification
thereof but without prejudice to its powers, rights and remedies for
enforcement thereof Provided Always that:-
26.1.1 neither any neglect nor forbearance of the Lender to require and
enforce payment of any moneys under or the performance and
observance of any covenants, undertakings, stipulations, terms and
conditions contained in any of the Facility Documents, nor any
time which may be given to the Borrower shall in any way prejudice
or affect any of the rights, powers or remedies of the Lender at
any time afterwards to act strictly in accordance with the
provisions
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of the Facility Documents; and
26.1.2 no such waiver of any such breach as aforesaid shall prejudice the
rights of the Lender in respect of any other or subsequent breach
of any of the covenants, undertakings, stipulations, terms or
conditions aforesaid.
26.2 Any such waiver and any consent by the Lender under any provision of the
Facility Documents must be in writing and may be given subject to any
conditions reasonably deemed fit by the Lender. Any waiver or consent
shall be effective only in the instance and for the purpose for which it
is given.
27. INDULGENCE OF LENDER NOT TO DISCHARGE BORROWER
The liability of the Borrower hereunder shall not be impaired or
discharged by reason of the fact that any person is or has become in any way,
whether with or without the acceptance of the Lender, liable to pay any of the
moneys owing by the Borrower hereunder or by reason of any time or other
indulgence being granted by or with the consent of the Lender to any such person
or by reason of any arrangement being entered into or composition accepted by
the Lender modifying the operation of law or otherwise the rights and remedies
of the Lender under the provisions of this Agreement.
28. PAYMENT OF COSTS
The Borrower shall indemnify the Lender for and shall pay forthwith to the
Lender on demand:-
28.1 all reasonable expenses including stamp, documentary and other duties
(whether as a penalty or otherwise), legal fees, goods and services tax,
administrative, registration and execution fees, out-of-pocket expenses
and any other reasonable costs or charges incurred or expended by the
Lender in connection with the negotiation, preparation or completion of
the Facility Documents; and
28.2 all expenses including all legal fees as between solicitors and clients
(on a full indemnity basis) and other expenses, costs and disbursements
whatsoever including but not limited to stamp or other duties incurred by
the Lender in connection with any variation, consent or approval relating
to the Facility Documents or in connection with demanding and enforcing
payments of moneys due under the Facility Documents or otherwise howsoever
in the enforcement or attempted enforcement of any of its rights under any
of the Facility Documents or incurred in connection with any delay or
omission on the part of the Borrower to pay stamp or other duties in
connection with any of the Facility Documents or any other documents
called for by the terms of any of the Facility Documents.
29. NOTICE
29.1 Except as otherwise expressly provided herein, any notice, request, demand
or other communication to be given or served under this Agreement to or on
any party under this Agreement may be delivered at or sent by prepaid
registered post or by telex or facsimile transmission to the address,
telex number or facsimile number and marked for the attention of the
person or department (if any) from time to time designated by that party
for the purpose of this Agreement and shall be deemed to be duly served:-
29.1.1 if it is delivered, at the time of delivery;
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29.1.2 if it is sent by prepaid registered post, forty-eight (48) hours
after posting thereof; or
29.1.3 if it is sent by telex or facsimile transmission, immediately
after transmission thereof if the date of transmission is a
Business Day, and if the date of transmission is not a Business
Day, then the notice by telex or facsimile transmission shall be
deemed to be served an the next Business Day.
29.2 Any communication from the Borrower shall be irrevocable, and shall not be
effective until actually received by the addressee. Except as otherwise
expressly provided herein, all notices, requests, demands or other
communications which are required by this Agreement to be in writing may
be made by telex or facsimile transmission.
29.3 Each notice, request demand or other communication in connection herewith
may be given to or served on the relevant party at its address, telex
number or facsimile number set out below or as such party hereto shall
from time to time notify the other parties.
The Borrower
UNITED TEST AND ASSEMBLY CENTER (S) PTE LTD
00 Xxxxxx Xxxx #00-00/00
Xxxxxxxxx X Xxxxx
Xxxxxxxxx 000000
Attention: Xxxxxxx Xxx
Facsimile: 5511155
The Lender
THE DEVELOPMENT BANK OF SINGAPORE LIMITED
Institutional Banking, Singapore Corporate 1
0 Xxxxxxx Xxx
XXX Xxxxxxxx
Xxxxx Xxx
Xxxxxxxxx 000000
Attention: Managing Director,
Institutional Banking, Singapore Corporate 1
Facsimile: 00-0000000
29.4 For the purposes of this Clause 29, each of the parties hereto shall from
time to time notify the other parties in writing of an address in
Singapore where such notice, request or demand or other communication as
aforesaid can be given or served.
30. DISCLOSURE
Without prejudice to all rights of the Lender to disclose information
relating to the accounts of the Borrower, and for all purposes whether under
common law or Section 47(4)(a) of the Banking Act (Chapter 19, Singapore
Statutes), or otherwise, the Borrower hereby irrevocably (so long as any moneys
or liabilities shall remain owing or unpaid to the Lender under any of the
Facility Documents or any banking facility or service is extended by the Lender
to the
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Borrower) permits the Lender and all persons to whom Section 47(3) of
that Act applies, to disclose (whether with or without notice to the Borrower
and whether orally or in writing) any information whatsoever concerning any
matters or transactions in relation to the Facilities and the account(s)
(including any information whatsoever regarding the money or other relevant
particulars of any account) which the Borrower now has or may hereafter have
with the Lender:-
30.1 to the Commissioner of Stamp Duties, the Registrar of Companies, Registrar
of Businesses, Registrar of Titles, Registrar of Deeds and/or any other
government officials or departments or relevant bodies for purposes in
connection with stamping (or assessment of stamp duties on), registering,
lodging or filing any or all documents or conducting of searches in
connection with the Facilities;
30.2 to CTB, the Monetary Authority of Singapore and any other governmental
authority;
30.3 to any solicitor acting for the Lender, the Borrower or any party involved
with the Facilities or any security therefor, in relation to the accounts
of the Borrower, the Facilities and any security given in connection
therewith or any other party mentioned in the foregoing provisions of this
Clause,
and save aforesaid the Lender shall obtain the Borrower's prior written consent
(such consent not to be unreasonably withheld) prior to the disclosure of any
matter set out above.
31. SUCCESSORS AND ASSIGNS
31.1 This Agreement shall be binding upon and inure to the benefit of the
Borrower and the Lender and the successors in title and assigns of the
Lender and any reference in this Agreement to any party shall be construed
accordingly. All undertakings, agreements, representations and warranties
given, made or entered into by the Borrower under this Agreement shall
survive the making of any assignments hereunder.
31.2 The Borrower shall have no right to assign or transfer any of its rights
or obligations hereunder and it shall remain fully liable for all of its
undertakings, agreements, duties, liabilities and obligations hereunder,
and for the due and punctual observance and performance thereof.
31.3 (a) The Lender may at any time, after giving to the Borrower prior
notice in writing of its intention to do so, assign all or part of
its rights or transfer all or part of its obligations under this
Agreement to any one or more banks or other lending institutions
(each of which is in this Clause 31.3 called an "Assignee Lender")
Provided that within fourteen (14) days of the Borrower's receipt of
such notification, the Borrower may by giving not more than fifteen
(15) days' prior notice in writing to the Lender, prepay, without
prepayment fee or premium (but without prejudice to Clause 23 which
shall nevertheless apply), to the Lender all Loans, accrued interest
and all other sums payable under the Facility Documents and procure
the immediate discharge and cancellation of the Letters of Credit
which are then still in force or pay to the Lender an amount
sufficient for the Lender to obtain such discharge and cancellation.
31.3 (b) Any such Assignee Lender shall be treated as a party to this
Agreement for all purposes of this Agreement and shall be entitled to
the full benefit of this Agreement to the same extent as if it were
an original party in respect of the rights or obligations assigned or
transferred to it and all references in this
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Agreement to the Lender (hereinafter called the "Assignor Lender")
shall subsequently be construed as references to the Assignor Lender
and its Assignee Lender or Assignee Lenders to the extent of their
respective participation and the Borrower shall subsequently look
only to the Assignee Lender or Assignee Lenders (to the exclusion of
the Assignor Lender) in respect of that proportion of the Assignor
Lender's obligations under this Agreement as corresponds to such
Assignee Lender's or Assignee Lenders' respective participation in
this Agreement and accordingly the Assignor Lender's commitment under
this Agreement shall be appropriately reduced and the Assignee Lender
shall assume a commitment (or, as the case may be, the Assignee
Lenders shall proportionately assume commitments in aggregate) equal
to such reduction in the Assignor Lender's commitment under this
Agreement.
(c) In the event the Lender does not receive a notice from the Borrower
pursuant to the provisions of the proviso to Clause 31.3(a) within
fourteen (14) days of the Borrower's receipt of its notification to
the Borrower of its intention to assign, then, the Lender may proceed
to assign all or part of its rights or transfer all or part of its
obligations under this Agreement and without prejudice to the
generality of Clause 30, the Lender may disclose to the Assignee
Lender or Assignee Lenders or potential assignee or transferee such
information about the Borrower as the Lender shall consider
appropriate.
32. SEVERABILITY
If any one or more of the provisions contained in the Facility Documents
or any part of such provisions shall be deemed invalid, unlawful or
unenforceable in any respect under any applicable law, the validity, legality
and enforceability of the remaining provisions or part thereof contained therein
shall not in any way be affected or impaired but the Facility Documents shall be
construed as if such invalid, unlawful or unenforceable provision or part
thereof had never been contained therein.
33. EVIDENCE
The entries made in the accounts maintained by the Lender in accordance
with its usual practice and a statement or certificate in writing signed by the
Lender or its servant or any person nominated by the Lender under the hand of
any authorised officer of the Lender certifying (a) the amount due at any time
in respect of any moneys owing or payable by the Borrower to it and/or any
liabilities incurred by it and payable by the Borrower to it under or by virtue
of any terms, conditions or stipulations of the Facility Documents, (b) any
interest rate applicable to it, (c) its cost of funds or (d) any other matter
provided in the Facility Documents shall (in the absence of any manifest error)
be prima facie evidence of the amounts of the obligations of the Borrower and of
the matters so certified.
34. CTB SECURITIES
34.1 At the request of the Borrower, the Lender agrees that the Borrower may,
subject to the terms and conditions herein, obtain banking facilities of
up to an aggregate principal amount of United States Dollars Twenty
million (US$20,000,000.00) from CTB ("CTB Facilities") to be secured by
the CTS Securities provided:-
(a) the terms and conditions of the CTB Facilities shall be on terms and
conditions
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comparable to the terms and conditions of the Lender under
the Facilities (excluding TL 2) and without prejudice to the
generality of the foregoing and in particular, the interest rates,
fees and financing periods for the CTB Facilities, shall not exceed
those charged or otherwise agreed by the Borrower and the Lender
under this Agreement; and
(b) subject to this Clause, the CTS Securities may, at most, rank pari
passu, without preference or priority, with the Securities; and
(c) the Borrower shall and shall procure CTB to enter into a security
sharing deed with the Lender in a form mutually agreed between the
Lender and CTB for regulating the rights and interests between the
Lender and CTB in respect of the Securities and the CTB Securities;
and
(d) save for the CTB Securities, the Borrower shall not create or attempt
or agree or permit to subsist or arise any encumbrance whatsoever,
whether fixed or floating or otherwise howsoever, on or over or all
or any part of the Borrower's other properties or assets or revenues
or any part thereof, both present and future whatsoever and
wheresoever situate in favour of CTB.
34.2 The Lender and the Borrower hereby acknowledge and agree that in the event
any of the provisions contained in Clause 34.1(a) to (d) are not complied
with to the satisfaction of the Lender, except for this Clause 34, any
reference to CTB or CTB Securities in any of the Facility Documents shall
have no effect whatsoever.
35. GOVERNING LAW AND SUBMISSION TO JURISDICTION
This Agreement shall be governed by, and construed in accordance with, the
laws of Singapore.
36. SECURITIES
36.1 The Total Indebtedness shall be secured by the Securities.
36.2 The Facility Documents shall bind and continue to bind the Borrower
notwithstanding the occurrence at any time whether before, on or after the
execution of the Facility Documents of:-
36.2.1 any change by amalgamation, reconstruction or otherwise which may
be made in the constitution of the company by which the business
of the Borrower or the Lender may for the time being be carried on
and shall be available to the company carrying on the business of
the Borrower or the Lender for the time being; or
36.2.2 any winding-up (whether voluntary or compulsory), amalgamation or
reconstruction of or affecting the Borrower or the Lender, or
36.2.3 any order placing the Borrower or the Lender under judicial
management of a judicial manager.
36.3 The powers which each of the Facility Documents confers on the Lender
thereunder are cumulative and are not exclusive of any other rights,
powers, privileges or remedies
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provided by law and may be exercised as often as the Lender thinks
appropriate in accordance with each of the Facility Documents.
36.4 The Lender shall not be liable for any loss or damage suffered by the
Borrower on account of any delay in executing any of the Facility
Documents.
37. MERGER
This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and shall supersede all oral statements and
prior writings with respect thereof.
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SCHEDULE 1
SWAP Offer Rate
DETERMINATION OF SWAP OFFER RATE FOR EACH INTEREST PERIOD
The swap offer rate (the "Swap Offer Rate") for Interest Period will be the
percentage rate per annum determined by the Lender two (2) Business Days prior
to the first day of the relevant Interest Period as follows (rounded to the
nearest five decimal places if necessary):
Swap Offer = (US$ SIBOR x (365/360)) plus
Rate ((Swap Points/Spot) x (36500/Days)) plus
((Swap Points/Spot) x US$ SIBOR x (365/360))
Where,
US$ SIBOR : is the US$ interbank offered rate in Singapore, for a
period ("Period") equal or approximately equal to the
Interest Period, appearing on page 7311 of the Telerate
screen under the column entitled "Fixing" at approximately
11.00 a.m. Singapore time, two (2) Business Days prior to
the first day of such period (the "Determination Date")
after such page has been updated to reflect the fixing on
the Determination Date. If such rate is not available, US$
SIBOR shall be the arithmetic mean (rounded, if necessary,
to the nearest five decimal places) of the following
quotations: (x) the offered quotations (as communicated to
the Lender) by the principal Singapore offices of all
banks that most recently appeared on Page 7311 of the
Telerate screen, at such time for US$ deposits for the
period to leading banks in Singapore interbank market or,
if less than two (2) such banks communicate such
quotations to the Lender, (y) the rates (as communicated
to the Lender) as at approximately 11.00 a.m. New York
time on the Determination Date at which such deposits are
offered to leading European banks by three (3) prime banks
in the City of New York (designated by the Lender) for
such deposits quoted two (2) Business Days prior to the
first day of such period.
Swap Points : is the average, expressed in decimal form (where one Swap
Point equals 1/10,000 or 0.0001), of the Swap Point offer
quotations, provided by the Lender at approximately
11.00 a.m. Singapore time on the Determination Date,
being the difference between the rates (expressed as a
value of S$ per US$) at which the Lender would
simultaneously buy US$in exchange for S$ on the first day
of such Interest Period and sell US$ in exchange for S$
on the Interest Payment Date corresponding to such
Interest Period, such difference being a negative number
if the quotation is priced at a discount to the spot rate
or a positive number if the quotation is priced at a
premium to the spot rate.
Spot : is the rate of exchange calculated by the Lender to be the
arithmetic mean of the spot buying and selling rates (by
cable transfer) in the Singapore foreign exchange market
of US$ in exchange for S$ (expressed as a value of S$
per US$), as provided by the Lender at approximately
11.00 a.m. Singapore time on the Determination Date
Days : is the actual number of days in such Interest Period.
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SCHEDULE 2
Machinery and Equipment financed by TL 2
----------------------------------------
Equipment Units
--------- -----
T5581 -- Advantest Memory System to perform testing 4
of all memory devices
M6741A -- Advantest Handler -- Handling Devices for 8
testing devices
J971-SP -- Teradyne 60MHZ Upgradable to 120MHZ 3
Tester for logic devices, with built in option of CTV, MTV,
VTV, HCVS and with 2M Vector, 288 Channel
J971-SM 1
Delta RFS -- Test Handler with pick and place mechanism 3
to handle big or fragile package units
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Schedule 3
[Table]
45
[Table]
46
[Table]
47
[Table]
48
[Table]
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SCHEDULE 4
Form of L/C Application
Five (5) Business Days before
proposed issue or renewal of
Letter of Credit
The Development Bank of Singapore Limited
Xx. 0 Xxxxxxx Xxx
DBS Building Tower 1, Institutional Banking
Singapore Corporate 1
Xxxxxxxxx 000000
("the Bank")
Attention:
Dear Sir
Re: UNITED TEST AND ASSEMBLY CENTER(S) PTE LTD
LETTER OF CREDIT FACILITY OF UP TO US$5,000,000
-----------------------------------------------
Pursuant to Clause 5 of the Loan Agreement dated ___________________ 199 made
between ourselves and yourselves ("the Agreement") in respect of the Letter of
Credit Facility (as defined in the Agreement), we hereby give you notice for the
issue or renewal of a Letter of Credit as per attached application form.
We confirm:-
(a) that each of the representations and warranties contained in Clause 18 of
the Agreement are true and correct in all material respects as though made
on the date of this L/C Application and on the proposed date of issue or
renewal of the Letter of Credit with reference to facts and circumstances
then subsisting; and
(b) that as at the date hereof, no Potential Event of Default or Event of
Default (other than any waived) has occurred and is continuing or will
occur as a result of the issue or renewal of the Letter of Credit.
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Terms in the Agreement have the same meanings when used in this application.
Yours faithfully,
UNITED TEST AND ASSEMBLY CENTER(S) PTE LTD
-------------------------------------
Name:
Title:
* Attach application form as required by The Development Bank of Singapore
Limited
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SCHEDULE 5
NOTICE OF DRAWING
Five (5) Business Days before
date of borrowing
The Development Bank of Singapore Limited
Xx. 0 Xxxxxxx Xxx
DBS Building Tower 1, Institutional Banking
Singapore Corporate 1
Xxxxxxxxx 000000
("the Bank")
Attention:
Dear Sir
Re: UNITED TEST AND ASSEMBLY CENTER(S) PTE LTD
------------------------------------------
Pursuant to Clause 7 of the Loan Agreement dated _______________ 199 made
between ourselves and yourselves ("the Agreement") in respect of inter alia, the
TL 1*/TL 2*/TL 3* (as defined in the Agreement) we hereby give you notice for
the following:-
1. Amount & Currency : ( )
2. Date of borrowing of Loan :
3. Payment : *Please credit the full amount of the Loan to
our account number
*Please issue cheque in favour of
4. Purpose of Loan :
5. Supporting Documents:-
The following supporting documents accompany this Notice of Drawing:-
(a)
(b)
(c)
6. Confirmation:
We confirm:-
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(a) that each of the representations and warranties contained in Clause 18
of the Agreement are true and correct in all material respects as
though made on the date of this Notice of Drawing and on the proposed
date of borrowing of the Loan with reference to facts and
circumstances then subsisting; and
(b) that as at the date hereof, no Potential Event of Default or Event of
Default (other than any waived) has occurred and is continuing or will
occur as a result of the borrowing of the Loan.
Terms in the Agreement have the same meanings when used in this notice.
Yours faithfully,
UNITED TEST AND ASSEMBLY CENTER(S) PTE LTD
-----------------------------------
Name:
Title:
*Please delete whichever is inapplicable
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IN WITNESS WHEREOF the parties hereto have executed this Agreement.
The Common Seal of UNITED TEST AND )
ASSEMBLY CENTER (S) PTE LTD was )
hereunto affixed in the presence of:- )
[SEAL]
DIRECTOR: /s/ [SIGNATURE]
------------------------------------
DIRECTOR/SECRETARY: /s/ [SIGNATURE]
--------------------------
SIGNED SEALED and DELIVERED by )
THE DEVELOPMENT BANK OF )
SINGAPORE LIMITED by its Attorney )
XXXX XXXX XXXX )
acting under a Power of Attorney dated ) /s/ Xxxx Xxxx Xxxx
23 MARCH 1998 (a copy ) ------------------------------
of which was on 27 MARCH )
1998 deposited in the Registry, Supreme )
Court, Singapore and registered as )
No. 1920 of 1998) in the presence of:- )
/s/ Tan Xxxx Xxxx
-------------------------------
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I, XXXXX X. X. SIM, an Advocate and Solicitor of the Supreme
Court of the Republic of Singapore practising in Singapore hereby certify that
on the 23rd day of April A.D. 1999 the Common Seal of UNITED TEST AND ASSEMBLY
CENTER (S) PTE LTD was duly affixed to the above written instrument in Singapore
in my presence in accordance with the regulations of the Borrower (which
regulations have been produced and shown to me).
WITNESS my hand this 23rd day of April, 1999
/s/ Xxxxx H. C. Sim
-------------------------
I, , an Advocate and Solicitor of the Supreme
Court of the Republic of Singapore practising in Singapore hereby certify that
on the day of A.D. 1999 the abovementioned instrument
was duly executed at Singapore by as the Attorneys
of the Lender.
WITNESS MY HAND.
/s/ [SIGNATURE]
---------------------
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