Exhibit 10.1
------------
DATED THIS 19TH DAY OF JUNE 2001
--------------------------------
(1) ASSOCIATED SPRING-ASIA PTE LTD
as the Borrower
(2) THE DEVELOPMENT BANK OF SINGAPORE LIMITED
as the Agent
And
(3) THE DEVELOPMENT BANK OF SINGAPORE LIMITED
as the Original Term Loan Bank
FACILITY AGREEMENT
TAN JINHWEE, ▇▇▇▇▇▇ & ▇▇▇ CHOOENG
ADVOCATES & SOLICITORS
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ #▇▇-▇▇
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
TJH/NSR/200113-4806
18.6.2001
nsr 51-c
TABLE OF CONTENTS
-----------------
PART I
------
INTRODUCTION
------------
1. DEFINITIONS AND INTERPRETATION............................. 2
2. THE FACILITY.............................................. 10
3. PURPOSE OF THE FACILITY................................... 11
4. CONDITIONS PRECEDENT AND AVAILABILITY..................... 11
PART II
-------
FACILITY
--------
5. DRAWING OF FACILITY....................................... 14
6. INTEREST ON TERM LOAN..................................... 15
7. REPAYMENT OF TERM LOAN.................................... 15
PART III
--------
FEES, CANCELLATION AND PREPAYMENT
---------------------------------
8. FEES...................................................... 16
9. CANCELLATION AND PREPAYMENT............................... 16
PART IV
-------
INTEREST PROVISIONS
-------------------
10. INTEREST PROVISIONS....................................... 18
PART V
------
PAYMENT, SET-OFF AND WITHHOLDINGS
---------------------------------
11. PAYMENT PROVISIONS........................................ 21
12. SET-OFF AND WITHHOLDINGS.................................. 21
13. PRO RATA SHARING.......................................... 23
PART VI
-------
CHANGE IN CIRCUMSTANCES
-----------------------
14. ILLEGALITY................................................ 25
15. INCREASED COSTS........................................... 25
ii
PART VII
--------
REPRESENTATIONS AND COVENANTS
-----------------------------
16. REPRESENTATIONS AND WARRANTIES............................ 27
17. UNDERTAKINGS.............................................. 29
PART VIII
---------
EVENTS OF DEFAULT AND INDEMNITIES
---------------------------------
18. EVENTS OF DEFAULT......................................... 35
19. SPECIAL CONSULTANT........................................ 39
20. INDEMNITIES............................................... 40
PART IX
-------
AGENCY PROVISIONS
-----------------
21. THE AGENCY................................................ 42
PART X
------
GENERAL PROVISIONS
------------------
22. SET-OFF................................................... 47
23. NOTICES................................................... 47
24. TRANSFERS................................................. 48
25. MISCELLANEOUS............................................. 51
APPENDICES
----------
APPENDIX 1 CHARGE
APPENDIX 2 GUARANTEE
APPENDIX 3 NOTICE OF DRAWING
APPENDIX 4 TRANSFER NOTICE
THIS FACILITY AGREEMENT is made the 19th day of June Two thousand
and one (2001) Between:-
(1) ASSOCIATED SPRING-ASIA PTE LTD (Company Registration No. 198100597E), a
company incorporated in Singapore and having its registered office at
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Borrower");
--------
(2) THE DEVELOPMENT BANK OF SINGAPORE LIMITED (Company Registration No.
196800306E), a company incorporated in Singapore and having its
registered office at ▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the
"Agent"); and
-----
(3) THE DEVELOPMENT BANK OF SINGAPORE LIMITED (Company Registration No.
196800306E), a company incorporated in Singapore and having its
registered office at ▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the
"Original Term Loan Bank").
-----------------------
WHEREAS the Term Loan Banks (as hereinafter defined) have
agreed to make available to the Borrower a transferable term loan facility of up
to the principal amount of Yen three billion and three hundred million
((Yen)3,300,000,000), for the purposes and upon the terms and conditions
hereinafter appearing.
IT IS AGREED as follows:-
2
PART I
------
INTRODUCTION
------------
1. DEFINITIONS AND INTERPRETATION
------------------------------
1.1 Terms defined: In this Agreement, unless the context otherwise
-------------
requires, the following words or expressions shall have the following meanings:-
"Availability Period" means, subject to the provisions contained
-------------------
in this Agreement, the period commencing on the date hereof and
terminating on the close of business in Singapore on 30 June 2001
or such later date as the Term Loan Banks may agree;
"Available Commitment" means, in relation to a Term Loan Bank,
--------------------
the amount, from time to time, of its Commitment less the
principal amount of its share of the Term Loan made to the
Borrower;
"Available Facility" means, at any time, the aggregate amount of
-------------------
the Available Commitment of all the Term Loan Banks;
"Business Day" means a day (other than a Saturday or Sunday) or
------------
public holiday on which commercial banks in Singapore, London and
New York are open for business and also, in relation to a day in
which payment is required, in the place where such payment is to
be made in accordance with this Agreement;
"Charge" means the deed of charge over the Debt Service Account
------
executed or to be executed by the Borrower substantially in the
form of Appendix 1;
----------
"Commitment" means:-
----------
(a) in relation to the Original Term Bank, Yen three
billion and three hundred million ((Yen)3,300,000,000);
and
(b) in relation to a Term Loan Bank (other than the
Original Term Loan Bank), the amount of such Term Loan
Bank's commitment acquired by it under Clause 24,
to the extent not cancelled, reduced or transferred under this
Agreement, and "Total Commitments" means the aggregate for the
-----------------
time being of the Commitments, being Yen three billion and three
hundred million ((Y)3,300,000,000) at the date of this Agreement;
"Debt Service Account" means the Yen account numbered 002-012494-
--------------------
08 or any other account in place thereof opened and maintained by
the Borrower with the Agent for the purpose of paying principal
and interest on the Term Loan;
3
"Drawing" means the drawing or utilisation made or to be made by
-------
the Borrower under the Facility;
"Drawing Date" means the date on which the Drawing is made, such
------------
date being within the Availability Period;
"Event of Default" and "Events of Default" mean any, each or all
---------------- -----------------
(as the context may require) of the Events of Default mentioned
in Clause 18.1;
"Facility" means the transferable term loan facility made or to
--------
be made available to the Borrower in accordance with the terms
and conditions set out herein;
Facility Office" means in relation to the Agent or any Term Loan
---------------
Bank, the office identified with its signature below (or, in the
case of a New Bank, as stated in the Transfer Notice to which it
is a party as New Bank) or such other office as it may from time
to time select;
"Final Repayment Date" means the earlier of (a) the date falling
--------------------
five (5) years after the Drawing Date, and (b) 30 June 2006;
"Finance Documents" means this Agreement, the Security Documents
-----------------
and the Transfer Notices, and "Finance Document" means each or
----------------
any of them;
"Finance Parties" means the Agent and the Term Loan Banks;
---------------
"Financial Indebtedness" means any indebtedness for or in respect
----------------------
of:-
(a) Indebtedness for Borrowed Money;
(b) any foreign currency, interest rate, commodity or other
swap, option, forward purchase or sale, or similar
transaction or any combination of any such transactions
entered to cover against fluctuations in interest rates
or exchange rates or to reduce overall interest cost;
(c) any guarantee; and
(d) amounts raised or obligations incurred under any other
transaction having the commercial effect of any of the
above;
"Government Approval" and "Government Approvals" mean any, each
------------------- --------------------
or all action, agreement or consent by or with any Government
Authority;
"Government Authority" and "Government Authorities" mean any,
-------------------- ----------------------
each or all governmental department or agency, regulatory
authority, instrumentality, judicial or administrative body
having jurisdiction over the matter in question;
4
"Guarantee" means the guarantee executed or to be executed by the
---------
Guarantor in favour of the Agent, substantially in the form of
Appendix 2;
----------
"Guarantor" means ▇▇▇▇▇▇ Group Inc., a company incorporated in
---------
the state of Delaware, United States of America;
"Hedge Agreement" means the hedging agreement dated 19 June 2001
---------------
and made between the Borrower and the Hedging Counterparty and
each other such interest rate or currency hedging agreement
between the Borrower and the Hedging Counterparty;
"Hedging Counterparty" means The Development Bank of Singapore
--------------------
Limited;
"Indebtedness for Borrowed Money" means any indebtedness for or
-------------------------------
in respect of:-
(a) moneys borrowed;
(b) any amount raised under any acceptance credit facility;
(c) any amount raised pursuant to any note purchase facility
or the issue of bonds, notes, debentures, loan stock or
similar securities or instruments;
(d) any amount raised pursuant to any issue of shares which
are expressed to be redeemable;
(e) any rental payments primarily for the purposes of
raising or obtaining finance whether in respect of land,
machinery, equipment or otherwise;
(f) any amounts payable under any agreement for the hire
purchase or conditional sale of goods or equipment on
deferred terms which agreement was entered into
primarily for the purpose of raising or obtaining
finance;
(g) receivables sold or discounted (other than on a non-
recourse basis);
(h) any amount raised under any transaction (including any
forward sale or purchase agreement) having the
commercial effect of a borrowing; and
(i) the amount of any liability in respect of any guarantee
for any of the items referred to in paragraphs (a) to
(h) above;
"Interest Payment Date" means the last day of an Interest Period;
---------------------
"Interest Period" means a period of six (6) months and determined
---------------
as
5
follows:-
(a) the first Interest Period shall commence on the Drawing
Date of the Drawing and shall end on the earlier of (i)
the date falling six (6) months immediately following,
and (ii) 31 December 2001;
(b) each successive Interest Period shall commence on the
last day of the previous Interest Period, and shall end
on the date falling six (6) months immediately
following;
(c) if an Interest Period would otherwise extend beyond the
Final Repayment Date it shall be abridged to end on the
Final Repayment Date; and
(d) if any Interest Period would otherwise end on a day
which is not a Business Day, the Interest Period shall
be extended to the next succeeding day which is a
Business Day unless such next succeeding Business Day
falls in the following month in which event such
Interest Period shall end on the immediately preceding
Business Day;
"Interest Rate" means the rate of interest for the time being
-------------
determined in accordance with Clause 6.2;
"LIBOR" means in relation to the Term Loan or an unpaid sum:-
-----
(a) the rate which is quoted at or about 11 a.m. (London
time) on the second Business Day before the commencement
of the required period on the page of the Telerate
Screen which displays an average British Bankers
Association Interest Settlement Rate for deposits in the
currency of the Term Loan or unpaid sum, as the case may
be, for such required period (or if the required periods
are not the same, such period, if any, as the Agent
determines to be substantially the same) or, if such
page or such service shall cease to be available, such
other page or such other service for the purpose of
displaying an average British Bankers Association
Interest Settlement Rate for the relevant currency as
the Agent, after consultation with the Term Loan Banks
and the Borrower, shall select; or
(b) if no quotation in the relevant currency and the
required period is displayed and the Agent has not
selected an alternative service on which a quotation is
displayed, the rate shall be arithmetic mean (rounded
upwards to four decimal places) of the respective rates
(as quoted to the Agent at its request) at which each
Reference Bank is offering to prime banks in the London
Inter-bank market deposits in the relevant currency for
such period at or about 11.00 a.m. (London time) on the
second Business Day before the commencement of such
period,
6
and, for the purposes of this definition, "required period" means
---------------
the Interest Period of the Term Loan or the period in respect of
which LIBOR falls to be determined in relation to any unpaid sum;
"Majority Banks" means at any time the Term Loan Banks to which
--------------
not less than sixty-six and two-thirds of one per cent. (66_%) of
the Term Loan is outstanding or, in the event that no amount of
the Term Loan is outstanding at such time, the Term Loan Banks
whose Commitments under the Facility then aggregate not less than
sixty-six and two-thirds of one per cent. (66_%) of the Total
Commitments under the Facility;
"Margin" means one and one-half of one per cent. (1 1/2%);
------
"New Bank" has the meaning given to it by Clause 24.2;
--------
"Notice of Drawing" means a notice substantially in the form set
-----------------
out in Appendix 3;
----------
"Potential Event of Default" means an event or happening which
--------------------------
would be likely to constitute an Event of Default if all notices
required to be given, determinations required to be made, periods
of time required to have expired and/or conditions required to be
satisfied under Clause 18.1 to make such event or happening an
Event of Default, had been given, made, expired and/or been
satisfied;
"Reference Banks" means:-
---------------
(a) where the Original Term Loan Bank is the only Term Loan
Bank for the time being, The Development Bank of
Singapore Limited; and
(b) where there are more than one Term Loan Bank for the
time being, The Development Bank of Singapore Limited
and one other Reference Bank from among the Term Loan
Banks as the Borrower and the Agent may agree;
"Repayment Date" and "Repayment Dates" mean any, each or all the
-------------- ---------------
dates of payment of the Repayment Instalments;
"Repayment Instalment" and "Repayment Instalments" mean, in
-------------------- ---------------------
relation to the Term Loan, any, each or all of the instalments of
repayment referred to in Clause 7;
"Security Documents" means the Charge, the Guarantee and all
------------------
other documents for the time being constituting security or
relating to security (whether executed pursuant to this Agreement
or otherwise) for all or any part of the Total Indebtedness, and
"Security Document" means each or any of them;
-----------------
"Security Interest" means any mortgage, pledge, lien,
-----------------
hypothecation,
7
assignment by way of security, contractual right of set-off,
title retention, security interest or other arrangement, charge
or encumbrance of any kind whatsoever conferring security or the
economic effect of which is to confer security, howsoever created
or existing, or any agreement for any of the same;
"Security Parties" means the Guarantor and all other persons
----------------
providing security for all or any part of the Total Indebtedness,
and "Security Party" means each or any of them;
--------------
"Singapore Dollar" and "S$" mean the lawful currency for the time
---------------- --
being of Singapore;
"Term Loan" means the amount of the Drawing made or to be made
---------
under the Facility or, as the context may require, the principal
amount of the Drawing made by the Borrower under the Facility and
for the time being owing and outstanding;
"Term Loan Banks" means the Original Term Loan Bank (so long as
---------------
it has any right or obligation as such under this Agreement) and
the Transferees (so long as the relevant Transferee has any right
or obligation as such under this Agreement), and each a "Term
----
Loan Bank"; and, for the avoidance of doubt, any reference to the
---------
Term Loan Bank or Term Loan Banks shall be construed, where
appropriate, to mean the Original Term Loan Bank alone until a
transfer is/has been made by it pursuant to the terms of this
Agreement;
"Total Indebtedness" means the aggregate of:-
------------------
(a) the Term Loan; and
(b) all interests, fees, costs, expenses and other moneys
whatsoever, whether actually or contingently, which are
expressed to be payable (whether at maturity or
otherwise) by the Borrower to that Term Loan Banks under
or in connection with or which the Borrower has
covenanted to pay or discharge to the Finance Parties
under or pursuant to this Agreement and the Security
Documents to which it is a party,
and includes any part thereof;
"Transfer Notice" means a notice substantially in the form of
---------------
Appendix 4;
----------
"Transferee" means a bank or other financial institution to which
----------
a Term Loan Bank transfers all or part of such Term Loan Bank's
rights and obligations hereunder;
"United States Dollar" and "US$" mean the lawful currency for the
-------------------- ---
time being of the United States of America; and
8
"Yen" and "(Yen)" mean the lawful currency for the time being of
--- ---
Japan.
1.2 Construction: Except as otherwise specified herein or to the
------------
extent that the context requires otherwise, any reference in this Agreement to:-
an "agency" of a state includes, at any particular time, any
------
agency, authority, central bank, department, government,
legislature, minister, ministry, official, or public or statutory
person (whether autonomous or not) of, or of the government of,
that state or any political sub-division in or of that state;
an "agreement" includes a concession, contract, deed, franchise,
---------
licence or undertaking (in each case, whether oral or in
writing);
the "assets" of any person shall be construed as a reference to
------
the whole or any part of its business, undertaking, property,
assets and revenue (including any right to receive revenues);
a "consent" includes an approval, authorisation, exemption,
-------
filing, notarisation, licence, order, permission, recording,
decision or registration (and references to "obtaining consents"
------------------
shall be construed accordingly);
a "guarantee" includes any obligation (whatever called) of any
---------
person to pay, to purchase, to provide funds (whether by the
advance of money, the purchase of or subscription for shares or
other securities, the purchase of assets or services, or
otherwise) for the payment of, to indemnify against the
consequences of default in the payment of, or otherwise to be
responsible for, any indebtedness of any other person;
"indebtedness" includes any obligation (whether present or
------------
future, actual or contingent, secured or unsecured, as principal
or surety or otherwise) for the payment or repayment of money but
excludes trade credits in the ordinary course of business;
a "law" includes applicable common or customary law and any
---
constitution, decree, judgment, legislation, order, ordinance,
regulation, statute, treaty or other legislative measure, in each
case of any jurisdiction whatever, or any present or future
directive, regulation, request (in each case, whether or not
having the force of law, but, if not having the force of law, the
compliance with which is in accordance with the general practice
of persons to whom the directive is addressed) (and references to
"lawful" and "unlawful" shall be construed accordingly);
------ --------
something having a "material adverse effect" on a person is a
-----------------------
reference to it having a material adverse effect (a) on that
person's financial condition or business/operations or on the
consolidated financial condition or business/operations of it and
its subsidiaries, or (b) on its ability to perform and comply
with its obligations under the Finance Documents to which it is a
party;
9
"month" means a calendar month;
-----
any "obligation" of any party under any Finance Document shall be
----------
construed as a reference to an obligation expressed to be assumed
by or imposed on it under that Finance Document (and references
to "due", "owing", "payable" and "receivable" shall be construed
--- ----- ------- ----------
accordingly);
a "person" includes any individual, company, corporation, body,
------
agency, government, firm, partnership, joint venture,
association, organisation, trust, state or agency of a state (in
each case, whether or not having separate legal personality);
"related corporation" shall be construed in accordance with
-------------------
Section 6 of the Companies Act (Cap. 50);
"subsidiary" shall be construed in accordance with Section 5 of
----------
the Companies Act (Cap. 50);
"tax(es)" includes all present and future taxes, levies, imposts,
-------
duties, charges, fees, deductions and withholdings of any nature
and whatever called together with interest thereon, additions to
tax and penalties and fines with respect thereto, if any, and any
payments made on or in respect thereof (and references to
"taxation" shall be construed accordingly); and
--------
"year" means a calendar year.
----
1.3 In this Agreement, unless the context otherwise requires:-
(a) words importing the singular number include the plural
number, and vice versa and words importing any gender
include any other gender;
(b) the words "hereof", "herein", "hereon" and "hereunder"
------ ------ ------ ---------
and words of similar import, when used in this
Agreement, refer to this Agreement as a whole and not to
any particular provision of this Agreement;
(c) the headings of the Clauses hereof shall not be deemed
to be a part thereof or be taken in consideration in the
interpretation or construction thereof or of this
Agreement;
(d) references herein to Clauses and Appendices are
references to clauses and appendices of this Agreement;
(e) references to documents (including, without limitation,
the Finance Documents) include amendments, replacements
and modifications thereof and supplements thereto;
(f) references to statutes and other legislation or any
provision thereof include re-enactments and amendments
thereof and include any
10
subordinate legislation made under any such statute;
(g) references to a party include its permitted assigns and
transferees and its successors in title;
(h) references to times of day shall (unless otherwise
stated) be references to Singapore time; and
(i) references to a day, month or year shall be construed by
reference to the Gregorian calendar.
2. THE FACILITY
------------
2.1 Facility: Subject to the provisions of this Agreement and in
--------
particular to those of Clause 4, the Term Loan Banks will make available to the
Borrower the Facility of up to the principal amount of Yen three billion and
three hundred million ((Y)3,300,000,000), at the times and in the manner
hereinafter provided.
2.2. Obligations several: The obligations of each Finance Party under
-------------------
this Agreement are several. Failure of any Finance Party to carry out its
obligations hereunder shall not relieve any other party hereto of any of its
obligations hereunder and/or affect the rights of any other party hereto. No
Finance Party shall be responsible for the obligations of any other Finance
Party hereunder Except that the Original Term Loan Bank shall, in consultation
with the Borrower, use reasonable efforts to procure that the Facility shall be
made available to the Borrower during the Availability Period regardless of the
failure of any Finance Party to comply with its obligations hereunder.
2.3 Rights several: The obligations of the Borrower towards the
--------------
Finance Parties under this Agreement are given to each of the Finance Parties as
separate and independent rights. Each Finance Party may separately enforce its
rights hereunder.
2.4 Security Documents: The Borrower shall contemporaneously on, or
------------------
as soon as practicable after, the date of execution of this Agreement deliver to
the Agent the Security Documents duly executed.
3. PURPOSE OF THE FACILITY
-----------------------
3.1 Purpose: Subject to the terms and conditions of this Agreement
-------
and in particular to those of Clause 4, the Facility will be made available to
the Borrower for the subscription for and/or purchase of shares in any or more
of the subsidiaries of the Guarantor and deposit to the Debt Service Account to
be applied towards payment of principal and interest under the Facility, and
save with the prior written consent of the Majority Banks, the Borrower shall
not use the proceeds of the Facility for purposes other than that mentioned in
this Clause 3.1.
3.2 No enquiry by the Finance Parties: Without prejudice to Clause
---------------------------------
3.1 and the other provisions of this Agreement, none of the Finance Parties
shall be bound to enquire as to nor shall any Finance Party be responsible for
the use or application of the
11
proceeds of the Facility.
4. CONDITIONS PRECEDENT AND AVAILABILITY
-------------------------------------
4.1 General conditions precedent: The obligations of the Term Loan
----------------------------
Banks under this Agreement are subject to the condition that the Agent shall
have received, not later than noon on the seventh Business Day before the
Drawing Date under the Facility (or such shorter interval before such Drawing
Date as shall be acceptable to the Majority Banks):-
(a) in respect of the Borrower:-
(i) certified true copies of the following:-
(aa) its Certificate of Incorporation; and
(bb) its Memorandum and Articles of
Association, as amended up to the date
hereof;
(ii) a certified true copy of the resolutions of the
board of directors of the Borrower, which are
in full force and effect, approving the terms
and authorising the execution, delivery and
performance of the Finance Documents to which
it is a party, and approving the execution and
delivery of the Notice of Drawing, and all
other notices and documents to be given from
time to time under any of the foregoing on
behalf of the Borrower and affixation of its
common seal to all necessary documents; and
(iii) a certificate signed by a director or the
company secretary of the Borrower setting out
the names of its directors and company
secretary and the names and signatures of
persons authorised to sign, on its behalf, the
Finance Documents to which it is a party, the
Notice of Drawing and all other notices and
documents to be delivered by it pursuant
thereto;
(b) in respect of the Guarantor:-
(i) certificate of good standing;
(ii) certified true copies of the following:-
(aa) its Articles of Incorporation,
certified by the Secretary of State of
Delaware, United States of America; and
(bb) its Bye-laws and other constitutive
documents, amended up to the date
hereof;
12
(iii) a certified true copy of the resolutions of
the board of directors of the Guarantor,
which are in full force and effect,
approving the terms and authorising the
execution, delivery and performance of the
Finance Documents to which it is a party,
and approving the execution and delivery of
all notices and documents to be given from
time to time under any of the foregoing on
behalf of the Guarantor and affixation of
its common seal to all necessary documents;
and
(iv) a certificate signed by the company
secretary of the Guarantor setting out the
names of its directors and company secretary
and the names and signatures of persons
authorised to sign, on its behalf, the
Finance Documents to which it is a party,
and all notices and documents to be
delivered by it pursuant thereto;
(v) a certificate signed by an officer of the
Guarantor in respect of factual matters
relating to the Guarantor;
(c) the following documents duly executed by the relevant
party thereto (other than the Finance Parties):-
(i) the Charge; and
(ii) the Guarantee;
(d) evidence that the Debt Service Account has been
opened and is maintained by the Borrower with the
Agent;
(e) the consent of the Borrower to its appointment by the
Guarantor as its agent to receive service of process
in Singapore, in form and substance satisfactory to
the Agent;
(f) the legal opinion of legal counsel(s) acceptable to
the Agent as to the laws of Delaware, Connecticut and
New York in respect of the Guarantee; and
(g) all fees, costs and expenses which are due and
payable under the Finance Documents have been paid.
4.2 Agent's approval: All the documents referred to in Clause 4.1
----------------
shall be in form and substance reasonably satisfactory to the Agent.
Save as otherwise provided, copies required to be certified shall be
certified to the Agent by a director, company secretary or responsible
officer of the Borrower or other party concerned.
4.3 Waiver: The Agent may waive in whole or in part and with or
------
without conditions in respect of the Drawing any of the conditions in
Clause 4.1 without prejudicing the right of the Term Loan Banks to
require, at a later date, fulfilment of such
13
conditions in whole or in part.
14
PART II
-------
FACILITY
--------
5. DRAWING OF FACILITY
-------------------
5.1 Conditions for Drawing: Subject to the terms and conditions of
----------------------
this Agreement, the Borrower may on any Business Day during the
Availability Period make one Drawing under the Facility if:-
(a) no Event of Default or Potential Event of Default has
occurred and is continuing;
(b) the Agent has actually received a Notice of Drawing
substantially in the form of Appendix 3 not later
----------
than 10.00 a.m. five (5) Business Days prior to the
proposed Drawing Date (which must be a Business Day)
or such shorter interval before the proposed Drawing
Date as shall be acceptable to the Agent;
(c) each of the representations and warranties mentioned
in Clause 16.1 remains accurate in all respects on
the proposed Drawing Date as if given on that date by
reference to the facts and circumstances then
existing;
(d) the Agent has received evidence that the Borrower has
made arrangements with the Hedging Counterparty for
the hedging of its foreign exchange exposure in
respect of the proposed Drawing;
(e) each of the conditions contained in Clause 4.1 has
been fulfilled or waived; and
(f) the Agent has received and found to be satisfactory
such additional information, legal opinion and/or
other documents as it may reasonably have requested.
5.2 Irrevocability: A Notice of Drawing once received by the Agent
--------------
shall be irrevocable and, subject to the provisions of this Agreement, the
Borrower shall be bound to borrow the amount stated in the Notice of
Drawing on the proposed Drawing Date.
5.3 Cancellation: Any part of the Facility left undrawn at the
------------
close of business on the last day of the Availability Period shall be
cancelled and shall not thereafter be available to the Borrower. Any
cancellation under this Clause 5.3 shall be deemed to be a cancellation at
the request of the Borrower under, and shall be subject to the payment of a
cancellation fee referred to in, Clause 9.1.
5.4 Advance by Term Loan Banks: The Agent shall by 5.00 p.m. on
--------------------------
the date following the receipt of the Notice of Drawing notify each Term
Loan Bank of the proposed Drawing Date, the amount of that Term Loan Bank's
share, and the Interest Rate, of the Term Loan.
15
6. INTEREST ON TERM LOAN
---------------------
6.1 Interest payment: Subject as otherwise provided in this
----------------
Agreement, the Borrower shall pay to the Agent for account of the Term Loan
Banks on each Interest Payment Date interest in arrears on the Term Loan at
the Interest Rate from time to time prevailing and in accordance with this
Clause 6 and Clause 10.
6.2 Interest Rate:
-------------
The rate of interest payable on the Term Loan shall be:-
(a) the rate per annum agreed in writing between the Agent,
with the approval of the Term Loan Banks, not less than
two (2) Business Days before the Drawing Date, or if
there is no such agreement,
(b) the rate per annum determined from time to time by the
Agent to be the sum of the Margin and LIBOR.
7. REPAYMENT OF TERM LOAN
----------------------
Subject as otherwise provided in this Agreement, the Borrower
shall repay the Term Loan to the Agent for account of the Term Loan Banks
in ten (10) semi-annual instalments falling on consecutive Interest Payment
Dates commencing on the first Interest Payment Date as follows:-
Instalment number Amount of each such instalment
----------------- ------------------------------
1st to 9th instalments (Yen)87,300,000
10th instalment (Yen)2,514,300,000 or the
amount outstanding.
In any event and subject as otherwise provided in this Agreement, the Term
Loan owing and outstanding as at the Final Repayment Date shall be
forthwith repaid in full to the Agent for account of the Term Loan Banks on
the Final Repayment Date.
16
PART III
--------
FEES, CANCELLATION AND PREPAYMENT
---------------------------------
8. FEES
----
8.1 Facility fee: The Borrower shall pay to the Agent (to be shared
------------
with the Term Loan Banks as agreed between them) a one-time facility fee as
set out in and in accordance with the terms of, a fee letter dated on or
about the date of this Agreement.
8.2 Commitment fee: The Borrower shall pay to the Agent for account
---------------
of the Term Loan Banks a commitment fee which:-
(a) shall be calculated on the basis of the actual number of
days elapsed from 29 March 2001 (excluding the date of
payment) and a 360-day year at the rate of one-half of
one per cent. (1/2%) per annum on the daily amount of
the Available Facility; and
(b) shall be paid in arrears on the date falling at monthly
intervals after 29 March 2001 but so that the last of
such payments shall be made on the last day of the
Availability Period or any earlier date when the
Facility is fully cancelled or drawn.
9. CANCELLATION AND PREPAYMENT
---------------------------
9.1 Cancellation: The Borrower may at any time cancel, the whole or
------------
any part of, the Facility which has not been drawn by giving to the Agent
written notice thereof together with payment of a cancellation fee for
account of the Term Loan Banks of:-
(a) in relation to a cancellation before the date of issue
of the Notice of Drawing, one-half of one per cent.
(1/2%) flat;
(b) in relation to a cancellation after the date of issue of
the Notice of Drawing and before the last day of the
Availability Period, one per cent. (1%) flat; and
(c) in relation to a cancellation on the last day of the
Availability Period (whether pursuant to this Clause 9.1
or Clause 5.4), the rate of one per cent. (1%) flat,
on the amount so cancelled. Each cancellation shall reduce the Commitment
of each of the Term Loan Banks pro rata.
9.2 Voluntary prepayment: The Borrower may, upon giving not less than
--------------------
five (5) Business Days' prior notice in writing to the Agent (which shall
promptly give notice thereof to the Term Loan Banks), prepay to the Agent
for account of the Term Loan Banks, on any Interest Payment Date, the whole
or any part of, the Term Loan, together with a prepayment fee of one-eight
of one per cent. (_%) flat on the amount prepaid for each
17
period of six (6) months or part thereof before the Final Repayment Date.
9.3 Miscellaneous provisions:
------------------------
(a) Each notice of cancellation and/or prepayment under
this Agreement is irrevocable.
(b) All prepayments under this Agreement shall be made
together with accrued interest on the amount prepaid
and any other amount due hereunder, including for the
avoidance of doubt, any amount due in respect of that
prepayment under Clause 20.1 if prepayment is made
other than on an Interest Payment Date.
(c) A cancellation made after the date of issue of the
Notice of Drawing shall be subject to payment of any
amount due in respect of the amount so cancelled under
Clause 20.1.
(d) No cancellation or prepayment is permitted except in
accordance with the express terms of this Agreement.
(e) All amounts prepaid shall be applied in the inverse
order of maturity.
(f) No amount prepaid under this Agreement may
subsequently be re-borrowed. No amount cancelled under
this Agreement may subsequently be reinstated.
18
PART IV
-------
INTEREST PROVISIONS
-------------------
10. INTEREST PROVISIONS
-------------------
10.1 Certificate of the Agent: The certificate of the Agent as to the
------------------------
Interest Rate and any fee applicable under this Agreement from time to time
shall be conclusive and binding on the Borrower, save for manifest error.
10.2 Basis for interest: Interest payable under this Agreement shall
------------------
accrue from day to day and shall be calculated on the basis of a year of
360 days, for the actual number of days elapsed.
10.3 Alternative rate: If, in relation to any Interest Period (where
-----------------
the Interest Rate is determined in accordance with Clause 6.2(b)):-
(a) the Agent is unable to determine LIBOR or the Agent
otherwise determines that adequate and fair means do not
exist for ascertaining LIBOR for that Interest Period;
or
(b) the Agent is notified by Banks (whose participation in
the Term Loan exceed 50% of the Term Loan) that (i) they
are or expect to be unable to obtain matching deposits
in the Singapore Interbank Market at or about 11.00 a.m.
(Singapore time) on the rate fixing date for that
Interest Period in sufficient amounts to fund their
respective shares of the Term Loan during that Interest
Period, or (ii) the Interest Rate fixed for that
Interest Period does not reflect the cost of funds to
those Term Loan Banks of funding their participation in
the Term Loan,
then the Agent shall forthwith give notice of such fact to the Borrower and
the Term Loan Banks and, if that Interest Period is the first Interest
Period, the Term Loan shall not be made available to the Borrower. The
Borrower and the Agent (on behalf of and in consultation with the Term Loan
Banks) shall negotiate in good faith with a view to agreeing upon a
mutually acceptable alternative basis for determining the relevant rate of
interest for that Interest Period. If, within such period as the Agent
shall consider to be reasonable, such period being not less than fourteen
(14) days from the date of the aforesaid notice to the Borrower, the
Borrower and the Agent are unable to agree upon such alternative basis for
determining the relevant rate of interest, then the Term Loan shall bear
interest for that Interest Period (but only in respect of the period that
the circumstances giving rise to the Agent's aforesaid notice are still
subsisting), at the rate per annum equal to the sum of the Margin and the
cost to each Term Loan Bank (expressed as a rate per annum) of funding its
share of the Term Loan (including, without limitation, the cost to that
Term Loan Bank occasioned by or attributable to complying with reserves,
liquidity, deposit or other requirements imposed on that Term Loan Bank by
any relevant Government Authority) by whatsoever means it determines to be
appropriate (the "Substitute Rate"). Where the Agent and the Borrower agree
---------------
upon a mutually acceptable alternative basis for determining the relevant
rate of interest under this Clause, it shall take
19
effect in accordance with its terms.
10.4 Default interest:
----------------
(a) The Borrower recognises and accepts that the rate
specified in this sub-Clause represents a genuine pre-
estimate of the damage the Finance Parties would suffer
in the event of a failure by the Borrower to pay any
amount payable by it under any Finance Document on the
due date therefor. If the Borrower fails as aforesaid,
it shall forthwith on demand by the Agent pay to the
Agent for account of the Finance Parties interest on the
overdue amount from the due date up to the date of
actual payment, as well after as before judgment, at the
rate per annum (the "Default Rate") determined by the
-------------
Agent to be three per cent. (3%) above:-
(i) where the overdue amount constitutes all or
part of the principal of the Term Loan, the
higher of the rate on the overdue amount
immediately before the due date and the rate
applicable to such overdue amount in accordance
with paragraph (ii) below; and
(ii) the rate which would have been payable if the
overdue amount (whether or not such overdue
amount constitutes all or part of the principal
of the Term Loan) had, during the period of
non-payment, constituted a Term Loan in the
currency of the overdue amount for such
successive interest periods of such duration as
the Agent may determine (each a "Designated
----------
Interest Period").
---------------
(b) The Default Rate will be determined by the Agent on each
Business Day of, or two (2) Business Days before the
first day of, the relevant Designated Interest Period,
as appropriate.
(c) If the Agent determines that the Default Rate cannot be
determined pursuant to paragraph (a) above, the Default
Rate will be determined by reference to the weighted
average of the cost of funds to the relevant Finance
Parties from whatever sources it may select plus three
per cent. (3%) plus the Margin.
10.5 Failure to comply: In addition to and not in derogation of the
-----------------
other provisions of this Agreement, if the Borrower shall fail or refuse to
comply with any provision of this Agreement, any Finance Party may, without
being in any way obliged to do so or responsible for so doing and without
prejudice to its ability to treat that non-compliance as an Event of
Default, effect compliance on the Borrower's behalf, whereupon the Borrower
shall become liable to pay immediately on demand therefor any sums expended
by such Finance Party together with all costs and expenses (including legal
fees on a full indemnity basis) in connection therewith, together with
interest thereon at the rate determined in accordance with Clause 10.4.
10.6 Compound interest: Interest payable under Clauses 10.4 and 10.5
-----------------
shall
20
accumulate by way of compound interest with monthly rests (as well after as
before any judgment) from and including (in the case of Clause 10.4) the
date of default or (in the case of Clause 10.5) the date of such Finance
Party's expenditure or payment to the date of actual payment by the
Borrower.
21
PART V
------
PAYMENT, SET-OFF AND WITHHOLDINGS
---------------------------------
11. PAYMENT PROVISIONS
------------------
11.1 By the Borrower: All payments to be made by the Borrower under or
---------------
pursuant to the Finance Documents to which it is a party shall be made by
on the relevant due date, in the case of the Term Loan, in Yen, and in any
other case, in the currency in which such amount is due, as follows:-
(a) if due in Yen, by payment in Yen not later than 11.00
a.m. (Singapore) time on the relevant due date in
immediately available and freely transferable funds (or
such other funds as the Agent determines to be customary
in Tokyo for the settlement in Tokyo of international
banking transactions in Yen), to the Debt Service
Account or such other account or accounts in Singapore
as the Agent may in writing by prior notice designate;
and
(b) if due in any other currency, by payment in that
currency to the Agent not later than 11.00 a.m.
(Singapore) time on the relevant due date in immediately
available and freely transferable funds, to such account
or accounts as the Agent may in writing by prior notice
designate.
11.2 By the Term Loan Banks: The Term Loan to be made by the Term Loan
----------------------
Banks to the Borrower under this Agreement shall be remitted in Yen and in
immediately available and freely transferable funds not later than 11.00
a.m. on the Drawing Date to the Agent who shall make available to the
Borrower the amounts so remitted before close of business on the same day
by payment in Yen to the account and bank in Singapore which are specified
in the Notice of Drawing. If the Agent makes available to the Borrower any
amount which has not been made unconditionally available to the Agent, the
Borrower shall forthwith on notice from the Agent repay such amount to the
Agent together with interest on such amount until its repayment at a rate
determined by the Agent to reflect its cost of funds.
11.3 Payment on Business Day: If any sum becomes due for payment under
-----------------------
or pursuant to any Finance Document to which the Borrower is a party on a
day which is not a Business Day, such payment shall be made on the next
succeeding Business Day unless such next succeeding Business Day falls in
the following month in which event such payment shall be made on the
immediately preceding Business Day and all calculations of interest shall
be adjusted accordingly.
12. SET-OFF AND WITHHOLDINGS
------------------------
12.1 No set-off or withholdings: All sums payable by the Borrower to
--------------------------
the Finance Parties under or pursuant to the Finance Documents to which it
is a party, whether of principal, interest, fees or otherwise, shall be
paid in full, free of any restriction
22
or condition, without set-off or counterclaim and without any deduction or
withholding for or on account of any taxes or otherwise unless the
deduction or withholding is required by law, in which event the Borrower
shall:-
(a) promptly notify the Agent as soon as the Borrower
becomes aware of such a requirement;
(b) ensure that such deduction or withholding does not
exceed the minimum legal liability therefor and
forthwith pay to the Agent for account of the relevant
Finance Parties such additional amount as is necessary
to ensure that the relevant Finance Parties receive on
the due date and retains (free from any liability other
than tax on the overall net income of such Finance
Party) a net sum equal to what it would have received
and so retained had no such deduction or withholding
been required or made;
(c) forthwith pay the full amount required to be deducted or
withheld (including, but without prejudice to the
generality of the foregoing, the full amount of any
deduction or withholding from any additional amount paid
pursuant to this sub-Clause) to the relevant taxation or
other authority within the time allowed for such payment
under applicable law and promptly deliver to the Agent,
after it has made such payment to the relevant
authority, an original receipt (or a certified true copy
thereof) issued by such authority evidencing the payment
to such authority of all amounts so required to be
deducted or withheld in respect of the relevant Finance
Party's share of such payment.
12.2 Indemnities: Without prejudice to the provisions of Clause 12.1,
-----------
if any Finance Party is required by any applicable law to make any payment,
whether on account of tax (not being a tax imposed on the overall net
income of such Finance Party) or otherwise or on or in relation to any sum
received or receivable under any Finance Document by such Finance Party
(including, without limitation, any sum received or receivable under this
Clause 12.2) or any liability in respect of any such payment is asserted,
imposed, levied or assessed against any Finance Party, the Borrower shall,
upon demand of the Agent, promptly indemnify such Finance Party against
such payment or liability, together with any interest, penalties and
expenses payable or incurred in connection therewith.
12.3 Goods and services tax: The Borrower shall also pay on demand to
----------------------
the Agent for account of the relevant Finance Parties, in addition to any
amount payable by the Borrower under or pursuant to the Finance Documents
to which it is a party, any goods and services, value added or other
similar tax payable in respect of that amount (and references in this
Agreement to that amount shall be deemed to include any such taxes payable
in addition to it).
12.4 Tax credit: If the Borrower pays any increased amount under
----------
Clause 12.1 and any Finance Party effectively obtains a refund of tax or
credit against tax by reason of that payment, and if such Finance Party is
able (in its sole opinion, which shall not be
23
capable of being challenged) to identify that refund or credit as being
attributable to that payment having regard to its other activities, then such
Finance Party shall reimburse to the Borrower such amount as it shall determine
(any such determination being conclusive) to be the proportion of that refund or
credit as will leave such Finance Party after that reimbursement in no better or
worse position than it would have been in if that payment had not been required.
None of the Finance Parties shall be obliged to arrange its tax affairs in any
particular manner or to apply for such refund or credit for itself or the
Borrower or to disclose any information regarding its tax affairs or
computations to the Borrower.
13. PRO RATA SHARING
----------------
13.1 Redistribution: If, at any time, any Term Loan Bank (a "Recovering
-------------- ----------
Bank") shall receive or recover (whether by payment, the exercise of a right of
----
set-off or combination of accounts or otherwise) a proportion in respect of its
share of the aggregate sum due from the Borrower to the Term Loan Banks under
this Agreement at the time of so receiving or recovering the same which is
greater than the proportion in respect of its or their respective share(s)
received or recovered by the Term Loan Bank or Term Loan Banks receiving or
recovering the smallest proportion thereof (the portion of such receipt or
recovery giving rise to such excess proportion being herein called an "excess
------
amount") then:-
------
(a) the Recovering Bank shall promptly pay to the Agent an amount
equal to the excess amount, whereupon the Agent shall notify the
Borrower of such amount and of its receipt by the Agent;
(b) the Agent shall treat such payment as if it were a payment by the
Borrower on account of the sum owed to the Term Loan Banks and
shall distribute the same pro-rata to the Term Loan Banks; and
(c) as between the Borrower and the Term Loan Banks the excess amount
shall be treated as having been paid to the Term Loan Banks to
which and in the proportion in which, it is distributed under
paragraph (b) above rather than as having been paid to the
Recovering Bank,
provided that if the excess amount or any part thereof is subsequently required
to be returned by the Recovering Bank to the Borrower, the Agent (if it shall
then hold the same) and each of the Term Loan Banks who has received any part
thereof from the Agent shall repay the excess amount or the relevant part
thereof to the Recovering Bank together with such amount, if any, as is
necessary to reimburse to the Recovering Bank the appropriate proportion of any
interest it shall have been obliged to pay when returning such amounts as
aforesaid, and the relevant adjustments pursuant to sub-paragraphs (a), (b) and
(c) above shall be to that extent cancelled.
13.2 Receipt from legal proceedings: Notwithstanding Clause 13.1, if any
------------------------------
Term Loan Bank shall commence any action or proceedings in any court to enforce
its rights hereunder after consultation with the other Term Loan Banks and, as a
result thereof or in connection therewith, shall receive any excess amount (as
defined in Clause 13.1), then
24
such Term Loan Bank shall not be required to share any portion of such excess
amount with any Term Loan Bank which has the legal right to, but does not, join
in such action or proceedings or commence and diligently prosecute a separate
action or proceeding to enforce its rights in another court. No excess amount
recovered by any Term Loan Bank, whether or not shared in proportion with the
other Term Loan Banks, under this Clause 13.2 shall be recovered again (i.e. no
double claim) against the Borrower and the Security Parties in any other
separate action or proceeding.
25
PART VI
-------
CHANGE IN CIRCUMSTANCES
-----------------------
14. ILLEGALITY
----------
If at any time by reason of any present or future applicable law or
any change in the interpretation or administration or application thereof, it
shall become unlawful or otherwise prohibited or impractical without breaching
such law for any Term Loan Bank to make available or maintain its Commitment or
any part thereof, to make, fund or allow to remain outstanding its share of the
Term Loan or to give effect to its obligations as contemplated by this Agreement
or to charge or receive interest or fee at the rate applicable for the Facility
or any part thereof (the "Affected Facility"), such Term Loan Bank may whereupon
-----------------
notify the Borrower through the Agent to that effect, whereafter such Term Loan
Bank's Commitment shall be terminated forthwith and the Borrower shall prepay,
without prepayment fee, premium or penalty, such Term Loan Bank's Term Loan and
any amount due hereunder including, for the avoidance of doubt, any amount due
under Clause 20.1, within such period as such Term Loan Bank may certify to be
necessary to comply with the relevant law or prohibition.
15. INCREASED COSTS
---------------
15.1 Increased costs: Where as a result of any change in or introduction of
---------------
or change in the interpretation or application of or in the compliance by any
Term Loan Bank with any law or with any request or requirement (whether or not
having the force of law, but if not having the force of law, the compliance with
which is in accordance with the general practice of persons to whom such request
or requirement is addressed), including any request or requirement which affects
the manner in which the such Term Loan Bank is required or does maintain
reserve, special deposit, cash ratio, liquidity or capital adequacy requirements
or resources in relation to its obligations under this Agreement, from any
central bank or other fiscal, monetary or other authority or agency:-
(a) the cost to such Term Loan Bank of making, funding or maintaining
its share of the Term Loan or of maintaining its Commitment in
respect of the Facility is increased; or
(b) the amount of any sum received or receivable by such Term Loan
Bank in respect of its Commitment in respect of the Facility or
its share of the Term Loan or the amount received or receivable
by such Term Loan Bank under this Agreement is reduced; or
(c) such Term Loan Bank is obliged to make any payment (except in
respect of tax imposed on the overall net income of such Term
Loan Bank) in respect of or forgoes any interest or other return
on, or calculated by reference to, the amount of any sum received
or receivable by such Term Loan Bank from the Borrower under this
Agreement; or
26
(d) the effective return to the Term Loan Bank under this Agreement
is reduced;
then and in each such case:-
(i) such Term Loan Bank shall notify the Borrower through the Agent
of such event upon its becoming aware of the same;
(ii) forthwith upon demand by such Term Loan Bank through the Agent,
the Borrower shall pay to such Term Loan Bank such amount as
shall compensate such Term Loan Bank for such increased cost,
reduction, payment or forgone interest or other return; and
(iii) the Borrower may prepay to such Term Loan Bank, without
prepayment fee, premium or penalty, such Term Loan Bank's share
of the Term Loan, in whole but not in part only, on giving not
less than fourteen (14) days' prior written notice (which shall
be irrevocable) to such Term Loan Bank through the Agent
Provided That such notice is given within thirty (30) days of
the relevant notification under sub-paragraph (i) above.
15.2 Prepayment: Where the Borrower has given notice under Clause 15.1 to
----------
prepay a Term Loan Bank:-
(a) the amount of the prepayment shall become due and payable on
expiry of the period specified in the notice to such Term Loan
Bank; and
(b) such Term Loan Bank's Commitment in respect of the Facility
shall be automatically cancelled.
15.3 Interest and other amounts: On prepaying the Bank under this Clause,
--------------------------
the Borrower shall pay to the relevant Term Loan Bank accrued interest on the
amount prepaid together with all other amounts due to such Term Loan Bank in
respect thereof, including for the avoidance of doubt, any amount payable under
Clause 20.1.
27
PART VII
--------
REPRESENTATIONS AND COVENANTS
-----------------------------
16. REPRESENTATIONS AND WARRANTIES
------------------------------
16.1 The Borrower hereby represents and warrants to each of the Finance
Parties as follows:-
(a) Status: it is a limited liability company incorporated in
------
accordance with, and validly existing under, the laws of
Singapore;
(b) Assets: it has the power to own its assets and carry on its
------
business and operations as they are now being conducted and will
maintain, preserve and protect all of its assets in accordance
with good business practice;
(c) Validity: the Finance Documents to which it is a party when
--------
executed and delivered will constitute its legal, valid, binding
and enforceable obligations in accordance with their respective
terms;
(d) Authorisations and consents: save for the registration of the
---------------------------
Charge with the Registry of Companies under the Companies
Regulations, all acts, conditions and things required to be done,
fulfilled and performed (including the obtaining of any necessary
consents) in order (aa) to enable it lawfully to enter into,
exercise its rights under and perform and comply with the
obligations expressed to be assumed by it in the Finance
Documents to which it is a party, (bb) to ensure that the
obligations expressed to be assumed by it in the Finance
Documents to which it is a party are legal, valid, binding and
enforceable, and (cc) to make the Finance Documents to which it
is a party admissible in evidence in Singapore, have been done,
fulfilled and performed;
(e) Non-conflict: its entry into and performance of the Finance
------------
Documents to which it is a party and the transactions
contemplated thereby do not and will not:-
(i) conflict with (aa) its Memorandum or Articles of
Association, (bb) any law or any official or judicial order
applicable to it or otherwise binding on it, or (cc) any
agreement or document to which it is a party or which is
binding on it or its assets; or
(ii) result in the creation or imposition of (or enforceability
of) any Security Interest on or over all or any of its
assets pursuant to the provisions of any agreement or
document other than the Finance Documents;
28
(g) No default: it is not in default in the payment or performance of
----------
any of its obligations for its Financial Indebtedness and no
Event of Default has occurred and is continuing;
(h) Litigation: no litigation, arbitration or administrative
----------
proceedings or claim which might by itself or together with any
other such proceedings or claims have a material adverse effect
on it is presently in progress or pending or, to the best of its
knowledge, information and belief, threatened against it or any
of its assets;
(i) Solvency: it is solvent; no appointment of a receiver and/or
--------
manager or a judicial manager or liquidator or similar officer
has been or is being made;
(j) Corporate documents: copies of its Memorandum and Articles of
-------------------
Association and certified extracts of its board resolutions
delivered to the Agent are true and accurate copies of its
corporate records;
(k) Tax liabilities: it has filed and will file all tax returns in
---------------
all jurisdictions which it is required by law to file and all
taxes due and payable by it have been paid in full; no claims are
being asserted against it with respect to taxes except such as
are being contested in good faith and by appropriate means;
(l) Records: it will keep adequate records and books of account
-------
reflecting its transactions in conformity with generally accepted
accounting principles, consistently applied;
(m) Information: all of the written information supplied to the
-----------
Agent, including, but not limited to, information relating to
itself and the Security Parties, are true, complete and accurate
in all respects and it is not aware of any fact or circumstance
that has not been disclosed to Finance Parties and which might,
if disclosed, adversely affect the decision of a person
considering whether or not to provide or maintain finance to the
Borrower;
(n) Security Interest: save as permitted by Clause 17.2(a), no
-----------------
Security Interest exists on or over all or any of its present or
future assets;
(o) Financial statements: its audited financial statements most
--------------------
recently delivered to the Agent:-
(i) have been prepared in accordance with accounting principles
and practices generally accepted in Singapore consistently
applied; and
(ii) present a true and fair view of its financial condition as
at the date to which they were drawn up; since that date
there has been no material adverse change in its financial
condition as shown in such accounts; and
29
(p) Pari passu ranking: its payment obligations under the Finance
------------------
Documents rank at least pari passu with the claims of all its
other unsecured and unsubordinated creditors, for obligations
which are unconditionally preferred by law applying to creditors
generally;
(q) Shareholding: (i) the whole of its issued share capital is
------------
legally and beneficially owned by ▇▇▇▇▇▇ Group (Bermuda) Limited
(Company Registration UF19573Z) ("▇▇▇▇▇▇ Bermuda"), and (ii) the
--------------
whole of the issued share capital of ▇▇▇▇▇▇ Bermuda is legally
and beneficially owned by the Guarantor.
16.2 Repetition: Each of the representations and warranties contained in
----------
Clause 16.1 shall survive and continue to have full force and effect after the
execution of this Agreement and shall be deemed to be repeated on each Interest
Payment Date so long as the Total Indebtedness remains outstanding under this
Agreement or the Facility is in effect, with reference to the facts and
circumstances then subsisting as if made at each such time.
17. UNDERTAKINGS
------------
17.1 The Borrower undertakes and agrees with each of the Finance Parties
that so long as the Total Indebtedness remains outstanding under this Agreement
or the Facility is in effect that:-
(a) Accounts and information: it will:-
------------------------
(i) deliver to the Agent, in sufficient copies of each of the
Finance Parties, as soon as they become available, but in
any event within one hundred and eighty (180) days after
the end of each of its financial periods (which shall not
be longer than fifteen (15) months), copies of its and the
Guarantor's financial statements for that period, which
shall contain an income statement and a balance sheet, be
prepared on a basis consistently applied, be audited and
certified by a firm of independent accountants of
recognised international standing and if qualified, such
qualification shall not be in a manner which is, in the
opinion of the Agent, material in the context of the
Finance Documents to which it is a party, together with
the auditor's report;
(ii) deliver to the Agent, in sufficient copies for each of the
Finance Parties, as soon as they are available but in any
event within ninety (90) days after the end of its
financial period to which they relate, copies of its
unaudited half-yearly financial statements;
(iii) all notices or other documents dispatched by it to its
30
shareholders (or any class thereof), its holding company
(direct or indirect) or its creditors generally (or any
class thereof); and
(iv) promptly upon the request of the Agent, supply the Agent
with sufficient copies for each of the Finance Parties
with such information (except that of a proprietary
nature) relating to its and the Guarantor's operations and
finances or other additional other information as the
Agent may from time to time reasonably request;
(b) Conduct of business: it will carry on and conduct its affairs and
-------------------
business in a proper and efficient manner and comply with all
laws relating to the conduct of its affairs and business the non-
compliance of which will have a material and adverse effect on
it;
(c) Insurance: except as otherwise expressly agreed in writing by the
---------
Agent, it will take out, maintain and comply with the terms of
insurance in respect of its assets which are of an insurable
nature against such risks and contingencies as are normally
covered by a comprehensive policy maintained by a prudent company
owning similar assets and carrying on similar business in
Singapore and as the Majority Banks may from time to time
require;
(d) Premium: it will pay or cause to be paid the premiums and other
-------
moneys payable in connection with effecting or maintaining the
insurance taken out pursuant to paragraph (c) above and will on
demand at any other time, deliver to the Agent the policies of
insurance, renewal slips and/or receipts of payment of premium
(as the case may be);
(e) Pari passu ranking: it will ensure that its payment obligations
------------------
under the Finance Documents to which it is a party rank at least
pari passu with the claims of all its other direct,
unconditional, unsubordinated and general obligations save those
claims which are preferred solely by any bankruptcy, insolvency,
liquidation or other laws of general application; and that such
payment obligations will at all times be secured by the Security
Documents;
(f) Authorisations and consents: it will maintain in full force and
---------------------------
effect all such authorisations and consents as are referred to in
Clause 16.1(d), take prompt steps to obtain any other
authorisation or consent which may be necessary or advisable for
the purposes specified in Clause 16.1(d), and comply with all
terms, conditions and restrictions, if any, imposed in connection
with any of such authorisations and consents and maintain or
accomplish any filing or registration with any Government
Authority which may be or become necessary or advisable for such
purposes;
(g) Performance of Finance Documents: it will perform all covenants,
--------------------------------
31
provisions, undertakings, terms and conditions on its part to be
performed and observed under the Finance Documents to which it is
a party;
(h) Notification of change: it will promptly notify the Agent of any
----------------------
event or change in its condition (financial, business or
otherwise) and of any litigation, arbitration or administrative
proceedings being threatened or initiated against it before any
court, tribunal or administrative agency, which might have a
material adverse effect on it, all such notification to be given
to the Agent as soon as practicable after it has knowledge of the
said event or change or of the said proceedings or threat thereof
and the amount of contingent liability, if such amount is
ascertainable;
(i) Notification of default: it will upon becoming aware of the
-----------------------
occurrence of an Event of Default or Potential Event of Default
forthwith notify the Agent and provide the Agent with full
details of any steps which it is taking, or is considering
taking, in order to remedy, or mitigate the effect of, the Event
of Default or Potential Event of Default or otherwise in
connection with it;
(j) Notification of winding-up and judicial management: it will
--------------------------------------------------
immediately upon becoming aware thereof notify the Agent of any
petition filed or notice for passing of a resolution for the
winding-up or appointment of a judicial manager if the Borrower
or any Security Party, such notification if made verbally to be
followed up in writing within twenty-four (24) hours therefor;
(k) Inspection: it will, if required and upon reasonable prior notice
----------
by the Agent permit the Finance Parties or any of them or
their/its agent during business hours to enter onto its offices
and properties and inspect the same and all accounts, records and
statements of the Borrower and the Borrower shall pay all costs,
fees and other expenses (including legal fees on a full indemnity
basis) reasonably incurred in respect of such inspection and give
to the such Finance Parties or their agent/s such written
authorities or other directions and provide such facilities and
access as such Finance Parties or their/its agent/s may require
for such inspection;
(l) Use of proceeds: it will use the proceeds of the Facility for the
---------------
purposes set out in Clause 3.1; and
(m) Debt Service Account: it will open and maintain the Debt Service
--------------------
Account and maintain in the Debt Service Account at all times an
amount not less than the aggregate of the amount of the Repayment
Instalment and interest payable under this Agreement on the
following Interest Payment Date.
17.2 The Borrower hereby undertakes and agrees with each of the Finance
Parties that so long as the Total Indebtedness remains outstanding under this
Agreement or
32
the Facility is in effect that:-
(a) Negative pledge: it will not, without the prior written consent
---------------
of the Agent (with the approval of the Term Loan Banks) (such
consent not to be unreasonably withheld), create or have
outstanding any Security Interest on or over, all or any of its
assets, present or future other than:-
(i) the security created pursuant to the Security Documents;
and
(ii) liens and rights of set-off arising solely by operation of
law in the ordinary course of day-to-day operations and not
in connection with the borrowing or raising of money or
credit;
(b) Disposal: it will not (whether by a single transaction or by a
--------
number of related or unrelated transactions and whether at one
time or over a period of time) except with the prior written
consent of the Agent (with the approval of the Term Loan Banks)
sell, transfer or otherwise dispose of (whether outright, by a
sale-and-repurchase or sale-and-leaseback arrangement or
otherwise): (i) any of the shares in any of the subsidiaries of
the Guarantor purchased with the proceeds of the Facility, (ii)
any of its substantial or material assets, other than surplus,
obsolete or redundant machinery and equipment not required for
the efficient operation of the business, or (iii) any of its
receivables except for the discounting of bills or notes in the
ordinary course of business;
(c) No cessation of business: it will not cease to conduct and carry
------------------------
on its present business;
(d) Insurance restrictions: it will not effect or keep on foot any
----------------------
insurance against any risk in respect of any of its assets where
any insurance hereinbefore mentioned has been effected or kept on
foot except at the request or with the prior written consent of
the Agent or do or suffer to be done or omitted anything by
reason whereof any policy of insurance effected on its assets may
be rendered void or voidable;
(e) No loans: it will not, without the prior written consent of the
--------
Term Loan Banks, make any loans or grant any credit (save in the
ordinary course of business) to or for the benefit of any person
except that in relation to loans and/or credit to subsidiaries of
the Guarantor not exceeding in aggregate United States Dollars
two million (US$2,000,000), the consent of the Term Loan Banks
shall not be unreasonably withheld;
(f) Restriction on Financial Indebtedness: it will not, without the
-------------------------------------
prior written consent of the Term Loan Banks, incur or have
outstanding
33
any Financial Indebtedness except:-
(i) the Facility from the Term Loan Banks;
(ii) the Financial Indebtedness under the Hedge Agreement;
(iii) any additional Financial Indebtedness provided the
aggregate Financial Indebtedness in paragraphs (i) and
(ii) above and this paragraph (iii) shall not exceed in
aggregate United States Dollars thirty million
(US$30,000,000) (or its equivalent in other currencies)
but excluding such additional Financial Indebtedness
resulting solely and directly from the upward movement of
Yen against the United States Dollar in foreign currency
exchange;
(ii) loans from the Guarantor or its related corporations; and
(g) Other restrictions: save with the prior written consent of the
------------------
Agent (with the approval of the Term Loan Banks, which, in
relation to sub-paragraphs (i), (ii) and (iv) below, shall not be
unreasonably withheld), it will not:-
(i) Reconstruction: effect any form of reconstruction or
--------------
amalgamation by way of a scheme of arrangement or
otherwise except for the purpose of a solvent
reconstruction or amalgamation on terms and conditions
which shall have first been approved by the Term Loan
Banks; or
(ii) Change of Memorandum or Articles of Association: amend,
-----------------------------------------------
modify or vary any provision in its Memorandum or Articles
of Association or other constitutional documents except
that amendments, modifications or variations may be made,
if in the opinion of the Majority Banks, such amendments,
modifications or variations would not prejudice the
Finance Parties' position under the Finance Documents; or
(iii) No change of ownership: permit any change in its ownership
----------------------
except pursuant to a reconstruction or amalgamation
permitted under sub-paragraph (i) above and provided that
the Guarantor continues to own beneficially (directly or
indirectly) all of the issued capital of the Borrower and
retain control of the Borrower; or
(iv) No other activities: engage in any activities other than
-------------------
its present business activities.
34
PART VIII
---------
EVENTS OF DEFAULT AND INDEMNITIES
---------------------------------
18. EVENTS OF DEFAULT
-----------------
18.1 Events of Default: Each of the events set out below is an Event of
-----------------
Default (whether or not caused by any reason whatsoever outside the control of
the Borrower or any other person):-
(a) Non-payment of principal or interest: the Borrower fails to make
------------------------------------
payment when due in the manner provided herein of any sum in
respect of principal or interest; or
(b) Non-payment of other money: the Borrower fails to pay or
--------------------------
otherwise discharge when due any money (other than any amount
referred to in paragraph (a) above) payable under any Finance
Document to which it is a party within five (5) Business Days of
written notice from the Agent; or
(c) Breach of Finance Documents: the Borrower or any Security Party
---------------------------
defaults or threatens to default in the due performance or
observance of any provision contained in any Finance Document to
which it is a party (other than those contained in paragraphs (a)
and (b) above) and, in relation to a default, if in the opinion
of the Majority Banks that default is capable of remedy within
seven (7) Business Days, it is not in the opinion of the Majority
Banks remedied within seven (7) Business Days of its occurrence;
or
(d) Misrepresentation: any representation, warranty or statement by
-----------------
the Borrower or any Security Party in any Finance Document to
which it is a party or in any document delivered by the Borrower
or any Security Party under any Finance Document to which it is a
party or in any document delivered by any party thereunder, is
not complied with in any material respect or is or proves to have
been incorrect in any material respect when made or, if made on
any later date, is or proves to have been incorrect in any
respect on that later date; or
(e) Cross default: any Financial Indebtedness of (i) the Borrower or
-------------
any of its subsidiaries, or (ii) any Security Party exceeding in
aggregate US$1,000,000 (aa) is or is declared to be due and
payable before its normal maturity by reason of any actual
default, event of default or the like (howsoever called), (bb) is
not being repaid on the due date for payment thereof as extended
by any days of grace permitted under the agreement or other
document evidencing or constituting such Financial Indebtedness,
or (cc) the availability of any loan, guarantee or other facility
under which the Borrower or any Security Party may incur
Financial Indebtedness is
35
cancelled by the provider thereof or becomes capable of being so
cancelled; or
(f) Insolvency: the Borrower or any Security Party (i) stops,
----------
suspends or threatens to stop or suspend payment of all or any
part of its debts or commences negotiations or takes proceedings
or any other steps with a view to rescheduling or deferring all
its indebtedness or any part thereof which it will or might
otherwise be unable to pay when due (and, for the avoidance of
doubt, a refinancing of the Facility by the Borrower with any
financial institution shall not be treated as a rescheduling or
deferring of indebtedness), or (ii) proposes or makes a general
assignment or an arrangement or composition with or for the
benefit of its creditors, or (iii) otherwise than for the
purposes of a consolidation, amalgamation, merger, reconstruction
or scheme the terms of which have previously been approved by the
Majority Banks, ceases or threatens to cease to carry on its
business, or (iv) becomes insolvent or is unable or deemed unable
to pay its debts within the meaning of Section 254(2) of the
Companies Act (Cap. 50) or relevant law or admits in writing its
inability to pay its debts as and when they fall due; or
(g) Execution proceedings: a distress, attachment, execution or other
---------------------
legal process is levied, enforced or sued out on or against all
or any part of the business or assets of the Borrower or any
Security Party and is not discharged or stayed within seven (7)
Business Days; or
(h) Enforcement of security: an encumbrancer takes possession of, or
-----------------------
a trustee, receiver, judicial manager, administrator or similar
officer is appointed in respect of all or any part of the
business or assets of the Borrower or any Security Party and is
not discharged within seven (7) Business Days or any Security
Document or any Security Interest which for the time being
affects all or any of the assets of the Borrower or any Security
Party becomes enforceable; or
(i) Insolvency proceedings: except for the purpose of a solvent
----------------------
reconstruction or amalgamation on terms and conditions which
shall have first been approved by the Majority Banks (such
approval to be unreasonably withheld):-
(i) a meeting of the shareholders or of the directors of the
Borrower or any Security Party is convened to consider a
resolution to petition for its winding-up, judicial
management or administration and any such resolution is
passed; or
(ii) a petition is presented or other proceedings initiated for
the winding-up, judicial management or administration of the
Borrower or any Security Party; or
36
(iii) an order is made for the winding-up, judicial management
or administration of the Borrower or any Security Party;
or
(iv) a moratorium is agreed or declared in respect of any
indebtedness of the Borrower or any Security Party; or
(j) Illegality: it is or becomes unlawful for the Borrower or any
----------
Security Party to perform or comply with any of its obligations
under any Finance Document to which it is a party; or
(k) Invalidity: any Finance Document is not, or is claimed by any
----------
party (other than the Finance Parties) to the Finance Document
not to be, in full force and effect; or
(l) Legal proceedings: any litigation, arbitration or administrative
-----------------
proceedings of any kind whatsoever (whether criminal or civil) is
instituted against the Borrower or any Security Party which if
adversely determined could have a material adverse effect on the
Borrower or such Security Party; or
(m) Compulsory acquisition: a notice or proposal shall be issued or
----------------------
made or any step is taken for the compulsory acquisition,
seizure, nationalisation or expropriation of all or part of the
assets of the Borrower or any Security Party; or
(n) Security enforceable: the security created by any Security
--------------------
Document shall become enforceable and written notice thereof has
been given to the Borrower; or
(o) Business in jeopardy: the business of the Borrower or any
--------------------
Security Party is, in the opinion of the Majority Banks, in
jeopardy and notice thereof has been given to the Borrower;
(p) Displacement of management: the management of the Borrower
--------------------------
existing at the date of this Agreement is wholly or substantially
displaced or has its authority curtailed;
(q) Declared company: the Borrower or any Security Party is a
----------------
declared company under Part IX of the Companies Act (Cap. 50); or
(r) Qualified audit: the Borrower's or any Security Party's
---------------
respective auditors qualify their report to the audited accounts
of the Borrower or such Security Party (as the case may be) in a
manner which is, in the opinion of the Majority Banks, materially
adverse in the context of the Finance Documents; or
(s) Material adverse change: any event or series of events whether
-----------------------
related or not occurs or circumstances arise which, in the
opinion of the Majority Banks, has or could have a material
adverse effect
37
on the Borrower or any Security Party and give(s) the Majority
Banks reasonable grounds for believing that the Borrower or such
Security Party, as the case may be, may not (or may be unable to)
perform or comply with any of its payment or other material
obligations under any Finance Document to which it is a party; or
(t) Analogous proceedings: any event occurs which, under the law of
---------------------
any relevant jurisdiction, has an analogous or equivalent effect
to any of the events mentioned in this Clause 18.1.
18.2 Acceleration: In the case of any such event as is mentioned in Clause
------------
18.1, and at any time thereafter, the Agent may, and shall if so directed by the
Majority Banks, by written notice to the Borrower:-
(a) declare that the whole of the Total Indebtedness shall
immediately become due and payable upon demand whereupon the same
shall become immediately due and payable;
(b) declare that the whole or part of the Term Loan shall be payable
on demand whereupon the same shall become immediately payable on
demand by the Agent acting on the instructions of the Majority
Banks; and/or
(c) declare that the obligations of the Term Loan Banks under this
Agreement and the Facility shall be automatically and forthwith
cancelled whereupon the same shall be so cancelled forthwith.
18.3 Distribution: Any sum which is received or recovered by the Agent
------------
pursuant to or in connection with any of the Finance Documents and is to be
applied in or towards satisfaction of sums due and payable by the Borrower under
any of the Finance Documents shall, without prejudice to the rights of any of
the Finance Parties pursuant to any of the Finance Documents to credit any
monies received or recovered by any of them to any suspense or impersonal
account, be applied by the Agent in the following order:-
(a) firstly, in or towards payment pro rata of any unpaid costs and
expenses of the Agent;
(b) secondly, in or towards payment pro rata of any accrued
commitment commissions, cancellation and agency fees due but
unpaid;
(c) thirdly, in or towards payment pro rata of any accrued interest
due but unpaid;
(d) fourthly, in or towards payment pro rata of any principal due but
unpaid; and
(e) fifthly, in or towards payment pro rata of any other sum due but
unpaid.
38
Provided that any amount paid by a Security Party under a Security Document to
which it is a party shall be applied in the above order but only to the extent
of such Security Party's liability for each such amount under such Security
Document.
18.4 Variation of order: The order of partial payments set out in Clause
------------------
18.3 shall override any appropriation made by the Borrower or Security Party to
which the partial payment relates but the order set out in paragraphs (b), (c),
(d) and (e) of that Clause may be varied if agreed by all the Term Loan Banks.
18.5 Enforcement: After the declaration by the Agent that an Event of
-----------
Default has occurred, it shall be lawful for each of the Finance Parties without
giving any prior notice to the Borrower or any Security Party, to forthwith
enforce the Security Documents in accordance with their respective terms.
19. SPECIAL CONSULTANT
------------------
If, in the reasonable opinion of the Majority Banks, circumstances
have arisen which give cause for concern that the Borrower may not be able to
meet its obligations to the Finance Parties under the Finance Documents, the
Borrower will notwithstanding that no Event of Default has occurred, forthwith
upon the request of the Agent (with the approval of the Majority Banks) appoint
a special accountant ("Special Consultant") nominated by the Agent; and such
------------------
nominee may be an accountant, lawyer, banker, engineer, or, without limitation,
any person whom the Agent considers so suitably qualified. The Agent may at its
absolute discretion immediately after such request appoint a Special Consultant
on the Borrower's behalf. The Special Consultant so appointed shall be the agent
of the Borrower and the Borrower shall be solely responsible for his acts,
defaults and reasonable remuneration. The functions of the Special Consultant
shall include the following:-
(a) to carry out an audit of the accounts of the Borrower and report
the outcome of such audit to the Agent;
(b) to verify and submit to the Agent an inventory of the Borrower's
assets;
(c) to verify and submit to the Agent a list of the Borrower's
accounts receivables;
(d) to verify and submit to the Agent a list of the Borrower's
creditors; and
(e) to render such advisory services with respect to the financial
affairs of the Borrower as the Agent may specify.
20. INDEMNITIES
-----------
20.1 Broken funding and other indemnities: The Borrower shall fully
------------------------------------
indemnify each Finance Party from and against any expense, loss, damage or
liability (as to the
39
amount of which the certificate of such Finance Party (containing reasonable
details of such amount but without any confidential information relating to the
organisation of its affairs) shall, in the absence of manifest error, be prima
facie evidence), whether arising under this Agreement or otherwise, which such
Finance Party may sustain or incur as a consequence of (a) any failure on the
part of the Borrower to borrow or draw in accordance with a Notice of Drawing,
(b) the receipt or recovery by the any Finance Party of all or any part of the
Term Loan or an overdue sum otherwise than on (in relation to the Term Loan) the
Repayment Date or (in relation to an overdue sum) the due date relating to that
overdue sum, (c) the occurrence or continuance of any Event of Default or
Potential Event of Default, or (d) any other default by the Borrower or any
Security Party in the performance of any of the obligations expressed to be
assumed by the Borrower or such Security Party under any Finance Document to
which it is a party, including but not limited to:-
(i) any interest, fees or other sums whatsoever paid or payable on
account of any funds borrowed or contracted for or utilised to
fund the amount so repaid or prepaid or in order to carry any
unpaid amount; and
(ii) any loss, premium, penalty or expense which may be incurred as a
result of any payment of any amount before its due date or in
liquidating or employing deposits from third parties acquired to
make, maintain or fund the Term Loan (or any part thereof) or any
other amount due or to become due under this Agreement.
20.2 Currency indemnity:
------------------
(a) Any amount received or recovered by any Finance Party in respect
of any sum expressed to be due to it from the Borrower under the
Finance Documents to which it is a party in a currency (the
"Payment Currency") other than that agreed to be payable
----------------
hereunder or thereunder (the "Agreed Currency") whether as a
---------------
result of, or of the enforcement of, a judgment or order of a
court or tribunal of any jurisdiction shall only constitute a
discharge to the Borrower to the extent of the amount in the
Agreed Currency which such Finance Party is able, in accordance
with its usual practice at such Finance Party's prevailing
exchange rate, to purchase with the amount so received or
recovered in the Payment 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).
(b) If that amount in the Payment Currency is less than the amount in
the Agreed Currency due to such Finance Party under the Finance
Documents, the Borrower shall indemnify such Finance Party
against any loss sustained by it in that event. In any event, the
Borrower shall indemnify such Finance Party against the cost of
making any such purchase.
20.3 Independent obligations: The indemnities contained in Clauses 20.1 and
-----------------------
40
20.2 constitute separate and independent obligations from the other obligations
in the Finance Documents, shall give rise to separate and independent causes of
action, shall apply irrespective of any indulgence granted by the Finance
Parties or any of them and shall continue in full force and effect whether
before and after any judgment, order, claim or proof for a liquidated amount in
respect of any sum due under any Finance Document to which the Borrower is a
party or any judgment or order. With regard to Clause 20.2, no proof or evidence
of any actual loss may be required other than proof of the actual amount in the
Agreed Currency purchased by the recipient as mentioned in Clause 20.2(a) and
the date upon which such purchase was effected.
41
PART IX
-------
AGENCY PROVISIONS
-----------------
21. THE AGENCY
----------
21.1 Appointment: Each Finance Party (other than the Agent) irrevocably
-----------
appoints the Agent to act as its agent for the purposes of the Finance Documents
and authorises the Agent on such Finance Party's behalf to enter into and
execute each of the Security Documents (and any document required in connection
therewith) and authorises the Agent to perform such duties and to exercise such
rights and powers under the Finance Documents as are specifically delegated to
it by the Finance Documents, together with such rights, powers and discretions
as are reasonably incidental thereto. The Agent shall hold the Security
Documents executed in favour of the Agent for the benefit of the Finance Parties
and in terms of the Security Documents. However, the Agent may not begin any
legal action or proceeding in the name of a Finance Party without its consent.
All notices or documents to be given or delivered pursuant to the Security
Documents shall be given or delivered to the Agent.
21.2 Majority Banks' directions: In the exercise of any right or power and
--------------------------
as to any matter not expressly provided for by the Finance Documents, the Agent
may act or refrain from acting in accordance with the instructions of the
Majority Banks and shall be fully protected in so doing. In the absence of any
such instructions, the Agent may act or refrain from acting as it shall see fit.
Any such instructions shall be binding on all the Finance Parties.
21.3 Relationship:
------------
(a) The relationship between the Agent and the other Finance Parties
is that of principal and agent only. Nothing herein shall
constitute the Agent a trustee or fiduciary for any other Finance
Party, the Borrower or any other person.
(b) The Agent shall not in any respect be agent of the Borrower by
virtue of this Agreement.
(c) The Agent shall not be liable to the Borrower for any breach by
any other Finance Party of the Finance Documents or be liable to
any other Finance Party for any breach by the Borrower hereof or
thereof.
(d) The Agent shall have only those duties, obligations and
responsibilities expressly specified in the Finance Documents.
21.4 Delegation: The Agent may act hereunder through its personnel and
----------
agents.
21.5 Documentation: Neither the Agent nor any of its officers, employees or
-------------
agents shall be responsible to any other party hereto for:-
42
(a) the execution, genuineness, validity, legality, enforceability,
admissibility in evidence or sufficiency of any Finance Documents
or any notice or other document in connection therewith; or
(b) the collectability of amounts payable under any Finance Document;
or
(c) the accuracy, adequacy, completeness or reasonableness of any
representation, warranty, projection, assumption, statement or
information (whether written or oral) made in or in connection
with any Finance Document or any notice or other document in
connection therewith.
21.6 Events of Default: The Agent shall not be required to ascertain or
-----------------
inquire as to the performance or observance by the Borrower or any Security
Party of the terms of the Finance Documents or any notice or other document in
connection therewith. The Agent shall not be deemed to have knowledge of the
occurrence of any Event of Default (or Potential Event of Default) unless it has
received notice from a party hereto describing such Event of Default or event
and stating that such notice is a "Notice of Default". If the Agent receives
such a notice of default, it shall give notice thereof to the other Finance
Parties. The Agent shall take or refrain from taking such action with respect to
such Event of Default or event as shall be reasonably directed by the other
Finance Parties. Until it shall have received such directions, the Agent may
(but shall not be obliged to) take or refrain from taking such action with
respect to such Event of Default or event as it shall see fit.
21.7 Exoneration: Neither the Agent nor any of its officers, employees or
-----------
agents shall be liable to any party hereto for any action taken or omitted
under, or in connection with, the Finance Documents unless caused by its gross
negligence or wilful misconduct.
21.8 Reliance:-
--------
(a) The Agent may rely on any communication or document believed by
it to be genuine and correct.
(b) The Agent may engage, pay for and rely on legal or other
professional advisers selected by it and shall be protected in so
relying.
21.9 Credit approval: Each of the Finance Parties (other than the Agent)
---------------
severally represents and warrants to the Agent that it has made its own
independent investigation and assessment of the financial condition and affairs
of the Borrower, the Guarantor and their related entities in connection with its
participation in this Agreement and has not relied exclusively on any
information provided to such Finance Party by the Agent in connection herewith.
Each Finance Party represents, warrants and undertakes to the Agent that it
shall continue to make its own independent appraisal of the creditworthiness of
the Borrower, the Security Parties and their related entities while the Total
Indebtedness is outstanding or its Commitment is in force.
43
21.10 Information:
-----------
(a) The Agent shall promptly furnish each Finance Party details of
each communication received by it pursuant to any of the Finance
Documents (but it shall not be obliged to review or check the
accuracy or completeness thereof), except that details of any
communication relating to a particular Finance Party shall be
sent to that Finance Party only.
(b) The Agent shall not have any duty:-
(i) either initially or on a continuing basis to provide any
other Finance Party with any credit or other information
with respect to the financial condition or affairs of the
Borrower, any Security Party or any of their related
entities whether coming into its possession or that of any
of its related entities of before the entry into of this
Agreement or at any time thereafter; or
(ii) unless specifically requested to do so by such Finance
Party, to request any certificates or other documents from
the Borrower or any Security Party under any Finance
Document.
(c) The Agent need not disclose any information relating to the
Borrower or any Security Party or any related entities if such
disclosure would or might, in the opinion of the Agent,
constitute a breach of any law or any duty of secrecy or
confidence.
(d) In acting as the Agent, the agency division of the Agent will be
treated as a separate entity from its other divisions and
departments. Any information required by the Agent which, in its
opinion, is acquired by it otherwise than in its capacity as the
Agent may be treated as confidential by the Agent and will not be
deemed to be information possessed by the Agent in its capacity
as such.
21.11 Agent's rights:
--------------
(a) The Agent shall have the same rights and powers hereunder as any
other Finance Party and may exercise the same as though it were
not an Agent.
(b) The Agent may accept deposits from, lend money to, and generally
engage in any kind of banking, trust, advisory or other business
whatsoever with, the Borrower, any Security Party and their
related entities and accept and retain any fees payable by the
Borrower, any Security Party or any of their related entities for
its own account in connection herewith without liability to
account therefor to such Finance Party.
44
21.12 Indemnity:
---------
(a) Each Term Loan Bank agrees to indemnify the Agent on demand (to
the extent not reimbursed by the Borrower and without prejudice
to the liability of the Borrower under this Agreement) for any
and all liabilities, losses, damages, penalties, actions,
judgments, costs, expenses or disbursements of any kind
whatsoever which may be imposed on, incurred by, or asserted
against, the Agent in any way relating to, or arising out of its
acting as an agent under, the Finance Documents or performing its
duties under the Finance Documents or for any action taken or
omitted by the Agent under the Finance Documents. Such
indemnification by each Term Loan Bank shall be pro rata to its
Commitment or (as the case may be) its share of the Term Loan.
Notwithstanding the foregoing, no Term Loan Bank shall be liable
for any portion of the foregoing resulting from the Agent's gross
negligence or wilful misconduct.
(b) Without prejudice to the liability of the Borrower, each Term
Loan Bank shall reimburse the Agent the amount of such Term Loan
Bank's pro rata share of charges and expenses not reimbursed by
the Borrower under Clauses 25.12 and 25.13.
21.13 Legal restrictions: The Agent may refrain from doing any thing which
------------------
would or might in its opinion (a) be contrary to the law of any jurisdiction or
any official directive, or (b) render it liable to any person, and may do
anything which in its opinion is necessary to comply with any such law or
directive.
21.14 Resignation:
-----------
(a) The Agent may resign at any time (after consultation with the
Borrower) by giving notice thereof to the Term Loan Banks and the
Borrower. However, no resignation shall be effective until the
successor has been appointed and accepted its appointment in
accordance with this Clause 20.14. In the event of any such
resignation, the Majority Banks may appoint a successor. If the
successor to a resigning Agent has not been so appointed and
accepted its appointment within fourteen (14) days after the date
of the notice of resignation, the resigning Agent may appoint a
successor Agent, which must be a reputable and experienced bank.
(b) Any appointment of a successor must be in writing, signed by the
person(s) appointing that successor and delivered to that
successor. Any acceptance of such appointment must be in writing,
signed by the person appointed and delivered to the person(s)
appointing that successor. The other parties to this Agreement
shall be promptly informed of the acceptance by a successor
Agent. Upon the successor accepting its appointment, the
resigning Agent shall
45
be automatically discharged from any further obligation under the
Finance Documents and its successor and each of the other parties
to the Finance Documents shall have the same rights and
obligations among themselves as they would have had if such
successor agent had been a party hereto. The resigning Agent
shall provide its successor with (or with copies of) such records
as its successor requires to carry out its duties under the
Finance Documents. All legal costs and expenses reasonably
incurred in connection with the appointment of the new Agent
shall be borne by the Borrower provided the Agent shall consult
with the Borrower prior to its resignation.
(c) This Clause 21 shall continue to benefit a retiring Agent in
respect of any action taken or omitted by it hereunder while it
was the Agent.
21.15 Recovery of payments: Unless the Agent shall have received notice from
--------------------
a Term Loan Bank or the Borrower not less than two (2) Business Days prior to
the date upon which such Term Loan Bank or the Borrower ("the party liable") is
----------------
to pay an amount to the Agent for transfer to the Borrower or any Term Loan Bank
respectively ("the payee") that the party liable does not intend to make that
---------
amount available to the Agent, the Agent may assume that the party liable has
paid such amount to the Agent on the due date in accordance herewith. In
reliance upon such assumption, the Agent may (but shall not be obliged to) make
available to the payee(s) a corresponding sum. If such amount is not in fact so
made available to the Agent, the payee(s) shall forthwith on demand repay such
sum to the Agent together with interest on such amount until its repayment at a
rate determined by the Agent as reflecting its cost of funds. The provisions of
this Clause 21.15 are without prejudice to any rights the Agent and the payee
may have against the party liable. This Clause 21.15 shall apply similarly in
respect of payments by any Security Party.
21.16 Assignments: The Agent may treat each Term Loan Bank named as a party
-----------
hereto as such a party, as entitled to payments hereunder and as acting
hereunder through its office specified on the signature pages of this Agreement
until it has received notice from the Term Loan Bank concerned to the contrary.
21.17 Application of proceeds: All amounts received by the Agent pursuant to
-----------------------
the Security Documents shall be held by it on trust for the Finance Parties, in
each case, according to their respective interests pursuant to the Finance
Documents and shall be applied by the Agent in accordance with the Finance
Documents.
46
PART X
-------
GENERAL PROVISIONS
------------------
22. SET-OFF
-------
Each Finance Party may at any time (whether before or after the
declaration of an Event of Default) without notice to the Borrower set off or
transfer any credit balance (whether or not then due) to which the Borrower is
at any time beneficially entitled on any account (expressed in any currency) or
debit such account at any office or branch of such Finance Party (whether in
Singapore or elsewhere) in or towards satisfaction of any of the Borrower's
liabilities which is due and owing to such Finance Party under the Finance
Documents or any part thereof then due and unpaid Provided That such debiting
shall not constitute a waiver of any Event of Default. For that purpose, each
Finance Party is authorised to use all or any part of any such credit balance to
buy such other currencies as may be necessary to effect such application. None
of the Finance Parties shall be obliged to exercise any of its rights under this
Clause, which shall be without prejudice and in addition to any right of set-
off, combination of accounts, lien or other right to which it is at any time
otherwise entitled (whether by operation of law, contract or otherwise). Each
Finance Party shall through the Agent notify the Borrower within three (3)
Business Days after the exercise by it of any of its rights under this Clause.
23. NOTICES
-------
23.1 Address: Each notice or other communication under this Agreement shall
-------
be made by facsimile, letter or otherwise in writing. Each notice or other
communication to be delivered to any party under this Agreement shall be sent to
that party at the facsimile number or address, and marked for the attention of
the person (if any), from time to time designated by that party to the Agent
(or, in the case of the Agent, by it to each other party) for the purpose of
this Agreement. The initial facsimile number, address and person (if any) so
designated by each party are set out under its name at the end of this
Agreement. Any notice or other communication or document from or to the Borrower
under this Agreement shall be sent to, by or through, the Agent.
23.2 Deemed delivery: Any notice or other communication from the Borrower
---------------
shall be irrevocable and shall not be effective until received by the Agent. Any
notice or other communication from any Finance Party to the Borrower shall be
deemed to be received by the Borrower (if sent by facsimile) on the day of
despatch or (in any other case) when left at the address required by Clause 23.1
and receipt thereof acknowledged by the Borrower or within 24 hours after being
sent by pre-paid registered post addressed to it at that address.
24. TRANSFERS
---------
24.1 No transfer by the Borrower: The Borrower may not assign, transfer,
--------------------------
novate or dispose of any of, or any interest in, its rights or obligations under
the Finance Documents.
47
24.2 Transfers by Term Loan Banks:
----------------------------
(a) A Term Loan Bank (the "Existing Bank") may, at any time with the
-------------
consent of the Agent assign, transfer or novate all or any part
of its Commitment and/or rights and/or obligations under this
Agreement to another bank or financial institution (the "New
---
Bank").
----
(b) A transfer of obligations will be effective only if either:-
(i) the obligations are novated in accordance with Clause 24.3;
or
(ii) the New Bank confirms to the Agent and the Borrower that it
undertakes to be bound by the terms of this Agreement as a
Term Loan Bank in form and substance satisfactory to the
Agent. On the transfer becoming effective in this manner
the Existing Bank shall be relieved of its obligations
under this Agreement to the extent that they are
transferred to the New Bank.
(c) Nothing in this Agreement restricts the ability of a Term Loan
Bank to sub-contract an obligation if that Term Loan Bank remains
liable under this Agreement for that obligation.
(d) On each occasion an Existing Bank assigns, transfers or novates
any of its rights or obligations under this Agreement, the
Existing Bank shall, on the date the assignment, transfer or
novation takes effect, pay to the Agent for its own account an
administrative fee, unless such fee is waived by the Agent. Until
further notice that fee (which will be subject to review by the
Agent from time to time) will be Singapore Dollars one thousand
($1,000) for each such occasion.
(e) An Existing Bank is not responsible to a New Bank for:-
(i) the execution, genuineness, validity, legality,
enforceability, admissibility in evidence or sufficiency of
any Finance Document or any notice or other document in
connection therewith; or
(ii) the collectability of amounts payable under any Finance
Document; or
(iii) the accuracy, adequacy, completeness or reasonableness of
any representation, warranty, projection, assumption,
statement or information (whether written or oral) made in
or in connection with any Finance Document or any notice or
other document in connection therewith.
48
(f) Each New Bank confirms to the Existing Bank and the other Finance
Parties that it:-
(i) has made its own independent investigation and assessment
of the financial condition and affairs of the Borrower and
its related entities in connection with its participation
in this Agreement and has not relied exclusively on any
information provided to it by the Existing Bank in
connection with any Finance Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of the Borrower and its related entities
while any amount is or may be outstanding under this
Agreement or any Commitment is in force.
(g) Nothing in any Finance Document shall oblige an Existing Bank
to:-
(i) accept a re-transfer from a New Bank of any of the rights
or obligations assigned, transferred or novated under this
Clause; or
(ii) be liable for, contribute or otherwise support any loss
incurred by the New Bank by reason of the non-performance
by the Borrower of its obligations under this Agreement or
otherwise.
(h) Any reference in this Agreement to a Term Loan Bank includes a
New Bank but excludes a Term Loan Bank if no amount is or may be
owed to or by it under this Agreement and its Commitment has been
cancelled or reduced to nil.
24.3 Procedure for novations:
-----------------------
(a) A novation is effected if:-
(i) the Existing Bank and the New Bank deliver to the Agent a
duly completed Transfer Notice; and
(ii) the Agent executes it within ten (10) days after execution
by the Existing Bank and the New Bank.
(b) Each party hereto (other than the Existing Bank and the New Bank)
irrevocably authorises the Agent to execute any duly completed
Transfer Notice on its behalf. The Agent shall be entitled (but
not obliged) to decline to accept and/or countersign any proposed
Transfer Notice which is not in the form set out in Appendix 4;
----------
(c) To the extent that they are expressed to be the subject of the
49
novation in the Transfer Notice:-
(i) the Existing Bank and the other parties hereto (the
"existing Parties") will be released from their obligations
----------------
to each other (the "discharged obligations");
----------------------
(ii) the New Bank and the existing Finance Parties will assume
obligations towards each other which differ from the
discharged obligations only insofar as they are owed to or
assumed by the New Bank instead of the Existing Bank;
(iii) the rights of the Existing Bank against the existing
Finance Parties and vice versa (the "discharged rights")
-----------------
will be cancelled; and
(iv) the New Bank and the existing parties hereto will acquire
rights against each other which differ from the discharged
rights only insofar as they are exercisable by or against
the New Bank instead of the Existing Bank,
all on the date of execution of the Transfer Notice by the Agent
or, if later, the date specified in the Transfer Notice.
24.4 Protection of Agent: The Agent shall be entitled to rely on any
-------------------
Transfer Notice delivered to it pursuant to this Clause which appears on its
face to be complete and regular and appears to be signed on behalf of the
Existing Bank and the New Bank named as party to it. The Agent shall have no
liability or responsibility to any party as a consequence of placing reliance on
and acting in accordance with and countersigning any such Transfer Notice.
24.5 Notwithstanding the provisions of this Clause 24, if the immediate
result of an assignment, transfer or novation pursuant to Clause 24 would be to
cause sums to become payable by the Borrower pursuant to Clauses 12.1 and/or
15.1 which were not previously payable or to increase the amount of any such
sums previously payable, the Borrower shall not be obliged the pay such sums or
increased sums, as the case may be.
24.6 Notification: The Agent shall notify each Term Loan Bank and the
------------
Borrower of each transfer and at the request of any other party hereto supply
that party at that party's expense a copy of any Transfer Notice.
24.7 Further documentation: Each party hereto, including the Existing Bank
---------------------
and the New Bank, further agrees to execute at the cost of the Existing Bank
such additional documentation as shall be reasonably required to transfer the
rights of the Existing Bank under the Finance Documents (other than this
Agreement) to the New Bank in accordance with all applicable laws.
24.8 Disclosure by Term Loan Banks: Each of the Finance Parties may from
-----------------------------
time to time disclose to its head office and branches, any governmental or
monetary authority in Singapore or relevant jurisdiction, any Security Party or
any person who derives or may derive rights under or by reference to the Finance
Documents (including
50
but not limited to any actual or potential participant, assignee, New Bank or
lender) such information relating to the Total Indebtedness, the Borrower, the
Finance Documents or any account of the Borrower with any Finance Party as it
may reasonably think fit.
25. MISCELLANEOUS
-------------
25.1 Accounts: Each Term Loan Bank shall maintain in accordance with its
--------
usual practice accounts evidencing the amount from time to time lent by it and
owing to it hereunder.
25.2 Control account: The Agent shall maintain in its books a control
---------------
account or accounts in which shall be recorded (a) the amount of all the Term
Loan and each Term Loan Bank's share of the Term Loan, (b) amount of all the
Total Indebtedness and each Term Loan Bank's share of the Total Indebtedness,
and (c) the amount of any sum received or recovered by the Agent hereunder and
each Term Loan Bank's share therein.
25.3 Evidence of indebtedness: In any legal action or proceedings arising
------------------------
out of or in connection with the Finance Documents a statement as to any amount
due to the Agent or any Term Loan Bank under the Finance Documents which is
certified as being correct by a duly authorised officer or officers of the Agent
or such Term Loan Bank shall (unless otherwise provided in the Finance
Documents), in the absence of manifest error, be prima facie evidence of the
existence and the amounts of the obligations of the Borrower.
25.4 Certificates and determinations: Except as otherwise provided under
-------------------------------
provisions of the Finance Documents or otherwise directed by a court of law, any
certificate, determination or notification by any Finance Party as to any amount
payable to it under the Finance Documents is conclusive and binding on the
Borrower, save for manifest error, and any other certificate, determination,
notification, opinion or the like of the Agent provided for in the Finance
Documents is prima facie evidence of the matter to which it relates save for
manifest error.
25.5 Application of moneys: If any sum paid or recovered in respect of the
---------------------
liabilities of the Borrower under the Finance Documents is less than the amount
then due, the Agent shall apply that sum in accordance with Clause 18.3.
25.6 Waivers and consents: No delay or omission on the part of any Finance
--------------------
Party in exercising any right or remedy under this Agreement shall impair that
right or remedy or operate as or be taken to be a waiver of it, nor shall any
single partial or defective exercise by any Finance Party of any such right or
remedy preclude any other or further exercise under this Agreement of that or
any other right or remedy; and no act or course of conduct or negotiation on its
part or on its behalf shall in any way preclude it from exercising any such
right or remedy or constitute a suspension or variation of any such right or
remedy. Any waiver by any Finance Party under any provision of this Agreement
must be in writing and may be given subject to any conditions as such Finance
Party may think fit. Any waiver or consent shall be effective only in the
instance and for the purpose for which it is given. Any waiver may be given
before or after a breach occurs. The rights and remedies provided in this
Agreement are cumulative and are not exclusive of any rights or remedies
provided by law.
51
25.7 Amendments, waivers and consents:
--------------------------------
(a) Any provision of this Agreement may be amended or supplemented
only if the Borrower and the Majority Banks so agree in writing
and any Event of Default, Potential Event of Default, provision
or breach of any provision of this Agreement may be waived before
or after it occurs only if the Majority Banks so agree in writing
but:-
(i) an amendment, supplement or waiver which puts one or more
Term Loan Banks in a better or worse position than one or
more other Term Loan Banks or changes or relates to (aa)
the amount of any of the Commitments, (bb) the Repayment
Dates, (cc) the amount or currency of the Term Loan, (dd)
the length of Interest Periods, (ee) the rate or dates of
payment, manner of calculation or currency of interest,
(ff) the amount, date(s) of payment, manner of calculation
or currency of the fees payable under Clauses 8.2, 9.1 and
9.2, (gg) the currency of any payment, (hh) the definition
of "Majority Banks", (ii) the release of any Security
Interest under the Security Documents, or (jj) this Clause
25.7, shall require the agreement of all the Term Loan
Banks and (in the case of an amendment or supplement) the
Borrower also; and
(ii) an amendment, supplement or waiver which changes or relates
to the rights and/or obligations of the Agent shall require
its agreement also.
(b) Any consent by the Agent, any Term Loan Bank or the Majority
Banks under any provision of this Agreement must also be in
writing. Any such waiver or consent may be given subject to any
conditions thought fit by the person giving it and shall be
effective only in the instance and for the purpose for which it
is given.
(c) The Agent may effect, on behalf of any Finance Party, an
amendment, supplement or waiver permitted under this Clause 25.7.
(d) The Agent shall promptly notify the other parties hereto of any
amendment, supplement or waiver effected under paragraph (a)
above, and any such amendment, supplement or waiver shall be
binding on all the parties hereto.
25.8 Severance: The illegality, invalidity or unenforceability of any
---------
provision of this Agreement under the law of any jurisdiction shall not affect
its legality, validity or enforceability under the law of any other jurisdiction
nor the legality, validity or enforceability of any other provision.
52
25.9 Counterparts: This Agreement may be signed in any number of
------------
counterparts, all of which taken together and when delivered to the Bank shall
constitute one and the same instrument. Any party may enter into this Agreement
by signing any such counterpart.
25.10 Governing law: This Agreement shall be governed by and construed in
-------------
accordance with the laws of Singapore.
25.11 Submission to jurisdiction: In relation to any legal action or
--------------------------
proceedings arising out of or in connection with this Agreement ("Proceedings"),
-----------
each party irrevocably submits to the non-exclusive jurisdiction of the courts
of Singapore and waives any objection to Proceedings in any such court on the
grounds of venue or on the grounds that the Proceedings have been brought in an
inconvenient forum. These submissions shall not affect the right of any Finance
Party to take Proceedings in any other jurisdiction nor shall the taking of
Proceedings in any jurisdiction preclude such Finance Party from taking
Proceedings in any other jurisdiction, whether concurrently or not.
25.12 Costs and expenses: All legal and other fees and out-of-pocket
------------------
expenses (including, without limitation, goods and services tax) reasonably
incurred by the Finance Parties or any of them or payable in connection with the
preparation, execution, completion, filing and registration of the Finance
Documents and all the other documents referred to in the Finance Documents shall
be paid by the Borrower.
25.13 Enforcement expenses: All legal fees on a full indemnity basis and
--------------------
other costs and disbursements (including, without limitation, goods and services
tax) reasonably incurred by the Finance Parties or any of them or payable in
connection with demanding and enforcing payment of moneys due under the Finance
Documents and all the other documents referred to in the Finance Documents and
otherwise howsoever in enforcing or contemplation of the enforcement of the
performance of any other undertakings, stipulations, terms, conditions, or
provisions of the Finance Documents shall be paid by the Borrower.
25.14 GST and others: Any stamp duty, levies, transaction taxes (including,
--------------
without limitation, goods and services tax), imposed by law or required to be
paid in respect of any moneys paid or payable to or received or receivable by
the Finance Parties or any of them or any expenses incurred by the Finance
Parties or any of them or incurred in connection with the execution, delivery,
performance or enforcement of the Finance Documents and all the other documents
referred to in the Finance Documents shall (except to the extent prohibited by
law) be borne and paid by the Borrower.
25.15 Language: All notices or communications under or in connection with
--------
this Agreement shall be in English or, if in any other language, accompanied by
a translation into English certified as the Agent may require. In the event of
any conflict between the English text and the text in any other language, the
English text shall prevail.
25.16 Letter of offer: If there is any inconsistency between any provision
--------------
of the letter of offer dated 5 March 2001 as supplemented by the letter of offer
dated 2 May 2001 from the Original Term Loan Bank to the Borrower in relation to
the Facility and any provision of any of the Finance Documents, such provision
of such Finance Document shall prevail.
53
IN WITNESS WHEREOF the parties have caused this Agreement to be duly
executed.
54
The Borrower
------------
ASSOCIATED SPRING-ASIA PTE LTD
By: Sd. ▇▇▇ ▇▇ ▇▇▇▇▇
--------------------------
Name: ▇▇▇ ▇▇ ▇▇▇▇▇
--------------------------
Title: MANAGING DIRECTOR
--------------------------
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇) ▇▇▇ ▇▇▇▇
Facsimile No.: (▇▇) ▇▇▇ ▇▇▇▇
Attention: ▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇
Managing Director
The Agent
---------
THE DEVELOPMENT BANK OF SINGAPORE LIMITED
By: Sd. Tan ▇▇ ▇▇▇
--------------------------
Name: TAN ▇▇ ▇▇▇
--------------------------
Title: VICE PRESIDENT
--------------------------
Address: ▇ ▇▇▇▇▇▇▇ ▇▇▇ #▇▇-▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇) ▇▇▇ ▇▇▇▇
Facsimile No.: (▇▇) ▇▇▇ ▇▇▇▇
Attention: Advisory Banking, Investment Banking Group
55
The Original Term Loan Bank
---------------------------
THE DEVELOPMENT BANK OF SINGAPORE LIMITED
By: Sd. Tan ▇▇ ▇▇▇
--------------------------
Name: TAN ▇▇ ▇▇▇
--------------------------
Title: VICE PRESIDENT
--------------------------
Address: ▇ ▇▇▇▇▇▇▇ ▇▇▇ #▇▇-▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇) ▇▇▇ ▇▇▇▇
Facsimile No.: (▇▇) ▇▇▇ ▇▇▇▇
Attention: Advisory Banking, Investment Banking Group
Appendix 1
----------
DATED THIS 19TH DAY OF JUNE 2001
--------------------------------
(1) ASSOCIATED SPRING-ASIA PTE LTD
as the Borrower
And
(2) THE DEVELOPMENT BANK OF SINGAPORE
LIMITED
as the Agent
CHARGE
TAN JINHWEE, ▇▇▇▇▇▇ & ▇▇▇ CHOOENG
ADVOCATES & SOLICITORS
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ #▇▇-▇▇
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
TJH/NSR/200113-4806
18.6.2001
TABLE OF CONTENTS
-----------------
1. DEFINITIONS AND INTERPRETATION........................ 1
2. COVENANT TO PAY....................................... 2
3. CHARGE................................................ 2
4. TERMS OF CHARGE....................................... 2
5. RIGHT OF SET-OFF...................................... 3
6. COVENANTS AND REPRESENTATIONS BY THE BORROWER......... 3
7. POWER OF ATTORNEY..................................... 3
8. FURTHER ASSURANCES.................................... 4
9. NON-MERGER AND CONTINUING SECURITY.................... 4
10. CONVEYANCING AND LAW OF PROPERTY ACT.................. 6
11. DISCHARGE TO BE CONDITIONAL........................... 6
12. NOTICES............................................... 7
13. SUCCESSORS BOUND...................................... 7
14. MISCELLANEOUS......................................... 7
THIS CHARGE is made the 19th day of June Two thousand and one (2001)
Between:-
(1) ASSOCIATED SPRING-ASIA PTE LTD (Company Registration No. 198100597E), a
company incorporated in Singapore and having its registered office at ▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Borrower"); and
--------
(2) THE DEVELOPMENT BANK OF SINGAPORE LIMITED (Company Registration No.
196800306E), a company incorporated in Singapore and having its registered
office at ▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as agent for itself
and the Term Loan Banks as defined in the Facility Agreement referred to
below (the "Agent" which expression shall include its successors in title,
-----
assigns and transferees).
WHEREAS:
(A) By a facility agreement of even date ("Facility Agreement") made
------------------
between (1) the Borrower, (2) the Agent, and (3) The Development Bank of
Singapore Limited as the Original Term Loan Bank, the Term Loan Banks agreed to
make available to the Borrower a transferable term loan facility of up to the
principal amount of Yen three million and three hundred million
((Yen)3,300,000,000), on and subject to the terms and conditions therein
contained.
(B) Under the Facility Agreement it was agreed, inter alia, that the Total
Indebtedness should be secured, inter alia, by this Charge as hereinafter
provided.
NOW THIS DEED WITNESSETH as follows:-
1. DEFINITIONS AND INTERPRETATION
------------------------------
1.1 In this Charge, unless where otherwise defined herein or the context
otherwise requires, all words and expressions as defined in the Facility
Agreement shall have the same meanings when used or referred to herein and the
following words or expressions shall have the following meanings respectively:-
"Debt Service Account" means the account numbered ▇▇▇-▇▇▇▇▇▇-▇▇ and
--------------------
each other account in place thereof opened and maintained by the
Borrower with the Agent pursuant to Clause 17.1(m) of the Facility
Agreement;
2
"Deposit" means the sum or sums which are from time to time deposited
-------
in the Debt Service Account together with all entitlements to interest
and other rights and benefits accruing to or arising in connection
therewith; and
"Discharge Date" means the date the Total Indebtedness is fully
--------------
discharged and the Facility under the Facility Agreement ceases to be
available for utilisation and the Borrower ceases to be under any
liability to the Finance Parties under or in connection with the
Facility Agreement, this Charge and the other Security Documents and
an absolute discharge of the Borrower is signed by the Agent.
1.2 Clauses 1.2 and 1.3 of the Facility Agreement shall apply to this
Charge as if set out in full except that references in the said Clauses to "this
----
Agreement" shall be deemed to be references to this Charge.
---------
2. COVENANT TO PAY
---------------
The Borrower hereby covenants with each of the Finance Parties to pay
and discharge the Total Indebtedness in accordance with the provisions of the
Finance Documents.
3. CHARGE
------
3.1 By way of continuing security for the payment of the Total
Indebtedness and for the performance of all its other obligations under the
Finance Documents, the Borrower as beneficial owner HEREBY CHARGES as a first
fixed charge in favour of the Agent for and on behalf of the Finance Parties,
free from any Security Interest, all the Borrower's right, title, benefit and
interest in the Deposit.
3.2 The Agent (with the approval of the Finance Parties) will at the
request and cost of the Borrower discharge the security hereby created as soon
as practicable after the Discharge Date.
4. TERMS OF CHARGE
---------------
4.1 The Borrower shall not be entitled, without the consent of the Agent
(with the approval of the Majority Banks), to withdraw or transfer all or any
part of the money standing to the credit of the Debt Service Account.
4.2 Interest shall accrue on the Deposit at such rates as may be agreed
between the Borrower and the Agent from time to time and such interest shall be
credited to the Debt Service Account and form part of the Deposit.
4.3 Any agreement that all or any part of the Deposit is to be held on
fixed time deposit shall be for the purposes of calculation and payment of
interest only and shall not prejudice the Finance Parties' rights or obligations
under any provision of this Charge.
3
The Agent may unilaterally terminate any such fixed time deposit period at any
time and adjust any interest payable by the Agent accordingly.
5. RIGHT OF SET-OFF
----------------
In addition to any general lien or right of set-off or other rights
which the Finance Parties may be entitled by law or under any other agreement or
document, the Agent may (and shall on the instruction of the Majority Banks), at
any time upon the occurrence of an Event of Default, without prior notice to the
Borrower:-
(a) appropriate or set-off any moneys for the time being standing to
the credit of the Debt Service Account in or towards payment or
discharge of any of the Total Indebtedness; and
(b) for the purposes of or with a view to any such appropriation or
set-off, convert any moneys now or hereafter standing to the
credit of the Debt Service Account at the Borrower's expense into
any currency other than that in which the same is or are held by
the Agent.
6. COVENANTS AND REPRESENTATIONS BY THE BORROWER
---------------------------------------------
The Borrower hereby covenants with and represents to each of the
Finance Parties that:-
(a) it is and will be the sole absolute and beneficial owner of all
the moneys standing to the credit of the Debt Service Account
free from any Security Interests and will not create or attempt
to create or permit to arise or subsist any Security Interests
(other than this Charge) on or over the Debt Service Account or
all or any part of the Deposit; and
(b) it has not sold, assigned or otherwise disposed of or agreed to
sell assign or dispose of and will not at any time before the
Discharge Date, sell, assign or dispose of or agree to sell,
assign or otherwise dispose of all or any of the its right, title
and interest in and to all or any part of the Deposit.
7. POWER OF ATTORNEY
-----------------
7.1 As security for the performance of its obligations under this Charge,
the Borrower hereby irrevocably appoints the Agent and every person to whom the
Agent shall from time to time delegate the exercise of the power of attorney
conferred by this Clause jointly and also severally to be the attorney or
attorneys of the Borrower and in the name of the Borrower or otherwise and as
its act and deed to sign, seal, execute, deliver, perfect and do all deeds,
instruments, notices, documents, acts and things which the Borrower may or ought
to do under the covenants and provisions contained in this Charge
4
and generally to execute and do all such assurances, acts and things and to
exercise all rights and privileges and perform all duties which now or hereafter
may vest in or appertain to the Borrower in relation to the Deposit and
generally do all acts and execute all instruments as the Agent may lawfully do
and be entitled to do or which the Borrower has agreed to do hereunder and under
the other Finance Documents, and the Borrower hereby declares that all acts and
things done, and all deeds, instruments and documents executed, on behalf of the
Borrower by the Agent or any attorney or any person nominated by the Agent as
aforesaid by virtue of the provisions of this Charge shall be as good, valid and
effectual to all intents and purposes whatsoever as if the same had been duly
and properly done or executed by the Borrower itself and the Borrower hereby
undertakes to ratify and confirm all such acts and things done, and all such
deeds instruments and documents executed, by virtue of the authorities and
powers hereby conferred.
7.2 The Borrower hereby further declares that the authorities and powers
hereby conferred shall be and remain irrevocable until the Discharge Date.
7.3 The authorities and powers conferred on the Agent by this Clause shall
only be exercised after the occurrence of an Event of Default.
7.4 None of the Finance Parties shall be liable to the Borrower for any
loss suffered by the Borrower as a result of the exercise by the Agent of its
authorities and powers under Clause 9.1 except for its own gross negligence or
wilful default.
8. FURTHER ASSURANCES
------------------
The Borrower shall, from time to time on being required to do so by
the Agent, now or at any time in the future, do or procure the doing of all such
acts and/or execute or procure the execution of all such documents in form and
substance satisfactory to the Agent as the Agent may consider necessary for
giving full effect to this Charge and securing to the Finance Parties the full
benefit of the rights, powers and remedies conferred upon the Finance Parties in
this Charge.
9. NON-MERGER AND CONTINUING SECURITY
----------------------------------
9.1 This Charge is made pursuant to the Facility Agreement and shall be
held by the Agent as a continuing security for the payment of the Total
Indebtedness and the security created by or pursuant to this Charge and the
obligations of the Borrower under this Charge shall not be considered as
satisfied or discharged or affected by:-
(a) any intermediate payment or settlement of account or satisfaction
of the whole or any part of any sum or sums of money due or owing
to the Finance Parties under the Facility Agreement or this
Charge or any other Security Document or otherwise and shall
extend to cover all moneys which shall from time to time be owing
by the Borrower to the Finance Parties under the Facility
Agreement and the Security Documents to which it is a party and
all moneys outstanding and not immediately payable for which the
5
Borrower is absolutely or contingently liable to the Finance
Parties thereunder or hereunder;
(b) any change by amalgamation, reconstruction or otherwise which may
be made in the constitution of the company by which the business
of any of the Finance Parties may for the time being be carried
on and shall be available to the company carrying on the business
of such Finance Parties for the time being;
(c) (i) any time, covenant not to ▇▇▇, indulgence, concession, waiver
or consent at any time given to the Borrower or any other person,
(ii) any alteration, amendment, variation, supplement, renewal or
replacement of any agreement, guarantee, document or Security
Interest (including, without limitation, the Facility Agreement
and the Security Documents), (iii) the making or absence of any
demand on the Borrower or any other person for payment, (iv) the
enforcement or absence of enforcement of any agreement,
guarantee, document or Security Interest (including, without
limitation, the Facility Agreement and the Security Documents),
(v) the taking, existence or release of any agreement, guarantee,
document, Security Interest, right, power, authority, discretion
or remedy (including the release of any of the properties, assets
and rights for the time being comprised in or subject to the
assignments and charges contained in this Charge), (vi) the
bankruptcy, insolvency, winding-up, dissolution, amalgamation,
reconstruction or reorganisation of the Borrower or any other
person (or the commencement of any of the foregoing), (vii) any
arrangement, composition or compromise entered into by the
Borrower or any other person, (viii) any moratorium or other
suspension of any agreement, guarantee, document, Security
Interest, right, power, authority, discretion or remedy, (ix) the
illegality, invalidity, unenforceability or otherwise of limited
force or effect of or any defect in any provision of any
agreement, guarantee, document or Security Interest (including,
without limitation, the Facility Agreement and the Security
Documents) or any of the obligations of any of the parties
thereunder, (x) any failure to take, or fully to take, any
Security Interest contemplated by the Facility Agreement or
otherwise agreed to be taken in respect of the Total
Indebtedness, (xi) any other act, matter or thing whatsoever
which, but for this Clause 9, would or might impair or discharge
the rights of the Finance Parties under this Charge or the
Facility Agreement or the other Security Documents.
For the avoidance of doubt and notwithstanding the provisions of Clause 9.1(c),
it is hereby agreed that the provisions of this Charge and the obligations and
liabilities of the Borrower and the Finance Parties hereunder may be waived,
amended, varied and/or supplemented (whether wholly or in part) in writing
executed by the Borrower and the Agent (with the consent of all the Term Loan
Banks), and such waiver, amendment, variation and/or supplement shall be valid
and enforceable between the parties hereto.
6
9.2 This Charge shall be in addition to and shall not be in any way
prejudiced or affected by any collateral or other security, guarantee,
indemnity, right, remedy or lien of whatever nature which the Finance Parties or
any of them or any other person may now or at any time hereafter have for or in
respect of all or any part of the Total Indebtedness nor shall any such
collateral or other security, guarantee, indemnity, right, remedy or lien be in
any way prejudiced or affected by this Charge. The Finance Parties may, in
connection with the exercise of their powers, join or concur with any person in
any transaction scheme or arrangement whatsoever.
10. CONVEYANCING AND LAW OF PROPERTY ACT
------------------------------------
10.1 Section 21 of the Conveyancing and Law of Property Act (Cap. 61) (the
"Act") shall not apply to this Charge.
----
10.2 The powers conferred by this Charge in relation to the Deposit or any
part thereof on the Agent shall be in addition to and not in substitution for
the powers conferred on mortgagees under the Act, which shall apply to the
security created by this Charge except insofar as they are expressly or
impliedly excluded. Where there is any ambiguity or conflict between the powers
or protections in this Charge which are more extensive or less restricted than
those provided by the Act, then the terms of this Charge shall prevail to the
extent permitted by law.
11. DISCHARGE TO BE CONDITIONAL
---------------------------
Any release, discharge or settlement between the Borrower and the
Agent in relation to this Charge shall be conditional upon no right, security,
disposition or payment to the Finance Parties or any of them by the Borrower and
any other person being void, set aside or ordered to be refunded pursuant to any
law relating to breach of duty by any person, bankruptcy, liquidation,
administration, judicial management, protection from creditors generally or
insolvency or for any other reason. If any such right, security, disposition or
payment is void or at any time set aside or ordered to be refunded, the Finance
Parties shall be entitled subsequently to enforce this Charge against the
Borrower as if such release, discharge or settlement had not occurred and any
such security, disposition or payment had not been made.
12. NOTICES
-------
12.1 Address: Each notice or other communication under this Charge shall be
-------
made by facsimile, letter or otherwise in writing. Each notice or other
communication to be delivered to any party under this Charge shall be sent to
that party at the facsimile number or address, and marked for the attention of
the person (if any), from time to time designated by that party to the other
party for the purpose of this Charge. The initial facsimile number, address and
person (if any) so designated by each party are set out under its name at the
end of this Charge. Any notice or other communication or document to the
Borrower under this Charge shall be sent to, by or through, the Agent.
12.2 Deemed delivery: Any notice or other communication from the Borrower
---------------
7
shall be irrevocable and shall not be effective until received by the Agent. Any
notice or other communication from the Agent to the Borrower shall be deemed to
be received by the Borrower (if sent by facsimile) on the day of despatch or (in
any other case) when left at the address required by Clause 12.1 and receipt
thereof acknowledged by the Borrower or within 24 hours after being sent by pre-
paid registered post addressed to it at that address.
13. SUCCESSORS BOUND
----------------
13.1 This Charge shall be binding upon and enure to the benefit of the
parties hereto and their respective successors and permitted assigns (as the
case may be), but the Borrower shall not assign or transfer all or any of its
rights and obligations hereunder.
13.2 Each of the Finance Parties may assign this Charge or the whole or a
portion of its rights hereunder, in which event references herein to each
Finance Party shall thenceforth be deemed to include a reference to such
assignee to the extent of its interest.
14. MISCELLANEOUS
-------------
14.1 Evidence of indebtedness: In any legal action or proceedings arising
------------------------
out of or in connection with this Charge a statement as to any amount due to any
Finance Party under this Charge which is certified as being correct by a duly
authorised officer or officers of such Finance Party shall (unless otherwise
provided in this Charge), in the absence of manifest error, be prima facie
evidence of the existence and the amounts of the obligations of the Borrower.
14.2 Certificates and determinations: Except as otherwise provided under
-------------------------------
the provisions of this Charge or otherwise directed by a court of law, any
certificate, determination or notification by any Finance Party as to any amount
payable to it under this Charge is conclusive and binding on the Borrower, save
for manifest error, and any other certificate, determination, notification,
opinion or the like of any Finance Party provided for in this Charge is prima
facie evidence of the matter to which it relates, save for manifest error.
14.3 Application of moneys: If any sum paid or recovered in respect of the
---------------------
liabilities of the Borrower under this Charge is less than the amount then due,
the Secured Parties may apply that sum in accordance with Clause 18.3 of the
Facility Agreement.
14.4 Waivers and consents: No delay or omission on the part of any Finance
--------------------
Party in exercising any right or remedy under this Charge shall impair that
right or remedy or operate as or be taken to be a waiver of it, nor shall any
single partial or defective exercise by any Finance Party of any such right or
remedy preclude any other or further exercise under this Charge of that or any
other right or remedy; and no act or course of conduct or negotiation on its
part or on its behalf shall in any way preclude it from exercising any such
right or remedy or constitute a suspension or variation of any such right or
remedy. Any waiver by any Finance Party under any provision of this Charge must
be in writing and may be given subject to any conditions as such Finance Party
may think fit. Any waiver or consent shall be effective only in the instance and
for the purpose for
8
which it is given. Any waiver may be given before or after a breach occurs. The
rights and remedies provided in this Charge are cumulative and are not exclusive
of any rights or remedies provided by law.
14.5 Disclosure: Each of the Finance Parties and all persons to whom
----------
Section 47(3) of the Banking Act (Cap. 19) applies may, for the purposes of
Section 47(4)(a) of the Banking Act (Cap. 19) or other law, from time to time
disclose on a confidential basis to any Government Authority in Singapore or
relevant jurisdiction, any person who derives or may derive rights under or by
reference to this Charge (including but not limited to any actual or potential
participant, assignee, transferee or lender) such information in relation to the
Borrower, this Charge, the money and other relevant particulars of any account
which the Borrower has with any Finance Party, as it may be required.
14.6 Severance: The illegality, invalidity or unenforceability of any
---------
provision of this Charge under the laws of any jurisdiction shall not affect its
legality, validity or enforceability under the laws of any other jurisdiction
nor the legality, validity or enforceability of any other provision.
14.7 Counterparts: This Charge may be signed in any number of
------------
counterparts, all of which taken together and when delivered to the Agent shall
constitute one and the same instrument. Any party may enter into this Charge by
signing any such counterpart.
14.8 Governing law: This Charge shall be governed by and construed in
-------------
accordance with the laws of Singapore.
14.9 Submission to jurisdiction: In relation to any legal action or
--------------------------
proceedings arising out of or in connection with this Charge ("Proceedings"),
-----------
the Borrower irrevocably submits to the non-exclusive jurisdiction of the courts
of Singapore and waives any objection to Proceedings in any such court on the
grounds of venue or on the grounds that the Proceedings have been brought in an
inconvenient forum. These submissions shall not affect the right of any Finance
Party to take Proceedings in any other jurisdiction nor shall the taking of
Proceedings in any jurisdiction preclude the Finance Parties from taking
Proceedings in any other jurisdiction, whether concurrently or not.
14.10 Costs and expenses: All legal and other fees and out-of-pocket
------------------
expenses (including, without limitation, goods and services tax) reasonably
incurred by the Finance Parties or payable in connection with the preparation,
execution, completion, filing and registration of this Charge and all the other
documents referred to in this Charge, unless paid or discharged by the Borrower,
shall be paid by the Borrower.
14.11 Enforcement expenses: All legal fees on a full indemnity basis and
--------------------
other costs and disbursements (including, without limitation, goods and services
tax) reasonably incurred by the Finance Parties or payable in connection with
demanding and enforcing payment of moneys due under this Charge and all the
other documents referred to in this Charge and otherwise howsoever in enforcing
or contemplation of the enforcement of the performance of any of the
undertakings, stipulations, terms, conditions or provisions of this Charge shall
be paid by the Borrower.
14.12 GST and others: Any stamp duty, levies, transaction taxes (including,
--------------
without limitation, goods and services tax) imposed by law or required to be
paid in
9
respect of any moneys paid or payable to or received or receivable by the
Finance Parties or any expenses incurred by the Finance Parties or incurred in
connection with the execution, delivery, performance or enforcement of this
Charge and all the other documents referred to in this Charge shall (except to
the extent prohibited by law) be borne and paid by the Borrower.
14.13 Language: All notices or communications under or in connection with
--------
this Charge shall be in English or, if in any other language, accompanied by a
translation into English certified as the Agent may require. In the event of any
conflict between the English text and the text in any other language, the
English text shall prevail.
IN WITNESS WHEREOF this Charge was executed as a deed.
10
The Borrower
------------
The Common Seal of )
ASSOCIATED SPRING-ASIA ) Affixed a Common Seal
PTE LTD )
was hereunto affixed in the )
presence of:- )
Sd. ▇▇▇ ▇▇ ▇▇▇▇▇
DIRECTOR
Sd. Tan-Goh Song Gek ▇▇▇▇▇
DIRECTOR / SECRETARY
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇) ▇▇▇ ▇▇▇▇
Facsimile No.: (▇▇) ▇▇▇ ▇▇▇▇
Attention: ▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇
Managing Director
The Agent
---------
SIGNED SEALED and DELIVERED )
for and on behalf of )
THE DEVELOPMENT BANK )
OF SINGAPORE LIMITED )
by its Attorney ) Affixed a Seal
TAN ▇▇ ▇▇▇ )
acting under a Power of Attorney ) Sd. Tan ▇▇ ▇▇▇
dated the 28th day of March 2000 )
(a copy of which was deposited )
in the Registry, Supreme Court, )
Singapore on the 10th day of )
April 2000 and registered as )
No. 2645 of 2000) in the )
presence of:- )
Sd. Ng Su-Ran
______________________
Name of Witness: NG SU-RAN
Address: ▇ ▇▇▇▇▇▇▇ ▇▇▇ #▇▇-▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇) ▇▇▇ ▇▇▇▇
Facsimile No.: (▇▇) ▇▇▇ ▇▇▇▇
Attention: Advisory Banking, Investment Banking Group
11
I, ▇▇▇▇▇ ▇▇▇ SONG GEK, an Advocate and Solicitor of the Supreme Court of the
Republic of Singapore practising in Singapore hereby certify that on 19th June
2001, the Common Seal of ASSOCIATED SPRING-ASIA PTE LTD was duly affixed on the
above Charge at Singapore in my presence in accordance with the Articles of
Association of the said company (which Articles of Association have been
produced and shown to me).
Witness my hand this 19th day of June 2001.
Sd. ▇▇▇▇▇ ▇▇▇ Song Gek
EXHIBIT 10.2
------------
DATED THIS 19TH DAY OF JUNE 2001
--------------------------------
(1) ▇▇▇▇▇▇ GROUP INC.
as the Guarantor
And
(2) THE DEVELOPMENT BANK
OF SINGAPORE LIMITED
as the Agent
GUARANTEE
TAN JINHWEE, ▇▇▇▇▇▇ & LIM CHOOENG
ADVOCATES & SOLICITORS
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ #▇▇-▇▇
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
TJH/NSR/200113-4806
18.6.2001
nsr 51-f
TABLE OF CONTENTS
-----------------
1. DEFINITIONS AND INTERPRETATION....................... 1
2. GUARANTEE AND INDEMNITY.............................. 2
3. SECURITY UNAFFECTED.................................. 2
4. REPRESENTATIONS AND WARRANTIES....................... 5
5. UNDERTAKINGS......................................... 7
6. PAYMENT PROVISIONS................................... 9
7. SET-OFF AND WITHHOLDINGS............................. 10
8. INDEMNITIES.......................................... 11
9. SET-OFF.............................................. 12
10. NOTICES.............................................. 12
11. SUCCESSORS BOUND..................................... 13
12. MISCELLANEOUS........................................ 13
THIS GUARANTEE is made the 19th day of June Two thousand and one
(2001) Between:-
(1) ▇▇▇▇▇▇ GROUP INC., a company incorporated in the State of Delaware, United
States of America and having its executive office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America (the "Guarantor"); and
---------
(2) THE DEVELOPMENT BANK OF SINGAPORE LIMITED (Company Registration No.
196800306E), a company incorporated in Singapore and having its registered
office at ▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as agent for itself
and the Term Loan Banks as defined in the Facility Agreement referred to
below (the "Agent" which expression shall include its successors in title,
-----
assigns and transferees).
WHEREAS:-
(A) By a facility agreement dated 19th June 2001 ("Facility Agreement")
------------------
made between (1) the Borrower (as hereinafter defined), (2) the Agent, and (3)
The Development Bank of Singapore Limited as the Original Term Loan Bank, the
Term Loan Banks (as therein defined) agreed to make available to the Borrower a
transferable term loan facility of up to the principal amount of Yen three
billion and three hundred million ((Yen)3,300,000,000), on and subject to the
terms and conditions therein contained.
(B) The execution and delivery of this Guarantee by the Guarantor is one
of the conditions precedent to the obligations of the Term Loan Banks under the
Facility Agreement.
(C) The Guarantor (after giving due consideration to the terms and
conditions of the Facility Agreement and satisfying itself that the execution
and delivery of this Guarantee will benefit it and is in its best interests) has
agreed to enter into this Guarantee.
NOW THIS GUARANTEE WITNESSETH as follows:-
1. DEFINITIONS AND INTERPRETATION
------------------------------
1.1 Terms defined: In this Guarantee, unless where otherwise defined
-------------
herein or the context otherwise requires, all words and expressions as defined
in the Facility Agreement shall have the same meanings when used or referred to
herein and the following words or expressions shall have the following meanings
respectively:-
2
"Borrower" means Associated Spring-Asia Pte Ltd (Company Registration
--------
No. 198100597E), a company incorporated in Singapore and having its
registered office at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇; and
"Discharge Date" means the date the Total Indebtedness is fully
--------------
discharged and the Facility under the Facility Agreement ceases to be
available for utilisation and each of the Borrower and the Guarantor
ceases to be under any liability to the Term Loan Banks and the Agent
under or in connection with the Facility Agreement, this Guarantee and
the other Security Documents and an absolute discharge of the Borrower
and the Guarantor is signed by the Agent.
1.2 Construction: Clauses 1.2 and 1.3 of the Facility Agreement shall
------------
apply to this Guarantee as if set out in full except that references in the said
Clauses to "this Agreement" shall be deemed to be references to this Guarantee.
--------------
2. GUARANTEE AND INDEMNITY
-----------------------
2.1 In consideration of the premises and the Term Loan Banks agreeing to
make the Facility available to the Borrower and the Finance Parties acting under
or in connection with the Facility Agreement (a copy of which the Guarantor
acknowledges having received), the Guarantor hereby unconditionally and
irrevocably guarantees to each Finance Party, as a continuing guarantee, the due
and punctual payment by the Borrower of the Total Indebtedness and
unconditionally and irrevocably undertakes that, if at any time and for any
reason the Borrower does not make payment of any amount of the Total
Indebtedness, by the time, on the date and in the currency and otherwise in the
manner specified in the Facility Agreement (whether on maturity date, on
acceleration or otherwise), the Guarantor shall pay the amounts not so paid
within five (5) Business Days of first written demand by the Agent in the
currency provided in the Facility Agreement as if the Guarantor was expressed to
be the primary obligor.
2.2 As a separate, additional and continuing obligation the Guarantor
unconditionally and irrevocably undertakes with the Finance Parties that, should
the Total Indebtedness not be recoverable from the Guarantor for any reason
whatsoever (including, but without prejudice to the generality of the foregoing,
by reason of any provision of this Guarantee or the Facility Agreement or any
other Security Document being or becoming void, unenforceable or otherwise
invalid under any applicable law) then notwithstanding that it may have been
known to the Finance Parties or any of them, the Guarantor will, as sole,
original and independent obligor, make payment of the Total Indebtedness by way
of full indemnity in such currency and otherwise in such manner as is provided
for in this Guarantee.
3. SECURITY UNAFFECTED
-------------------
3.1 The liabilities and obligations of the Guarantor under this Guarantee
remain in full force and effect, subject to Clause 3.2, until the Discharge
Date, notwithstanding any act, omission, neglect, event or matter whatsoever,
and without prejudice to its generality, the foregoing shall apply in relation
to anything which would have discharged the Guarantor (wholly or in part) or
which would have afforded the
3
Guarantor any legal or equitable defence, and in relation to any winding-up or
dissolution of, or any change in the constitution or corporate identity or loss
of corporate identity by, the Borrower or any other person.
3.2 Any such discharge or release as is referred to in Clause 3.1 and any
composition or arrangement which the Guarantor may effect with the Finance
Parties or any of them, shall be deemed to be made subject to the condition that
it will be void, if any payment or security which the Finance Parties or any of
them may previously have received or may thereafter receive from any person in
respect of the Total Indebtedness or other payments as stipulated in this
Guarantee, is set aside under any applicable law or proves to have been for any
reason invalid and, in the event of any such payment or security being so set
aside or invalid, the Finance Parties shall be entitled subsequently to enforce
this Guarantee against the Guarantor as if such discharge, release, composition
or arrangement had not occurred.
3.3 Without prejudice to the generality of Clauses 3.1 and 3.2, none of
the liabilities or obligations of the Guarantor under this Guarantee shall be
affected or impaired by:-
(a) the Finance Parties or any of them agreeing with the Borrower or
any other person on any variation or departure (however
substantial) of or from the Facility Agreement or any Security
Document and any such variation or departure shall, whatever its
nature, be binding upon the Guarantor in all circumstances
notwithstanding that it may increase or otherwise affect the
liability of the Guarantor Provided however that if any such
variation is made without the Guarantor's prior written consent
increasing the principal amount of the Facility, the liability of
the Guarantor shall be limited to the amount for which it would
have been liable had such variation not been made;
(b) any provision of this Guarantee or the Facility Agreement or any
other Security Document or any other document or security being
or becoming void, frustrated, unenforceable or otherwise invalid
under any applicable law as regards the Borrower or any other
person for any reason whatsoever, to the intent that the
Guarantor's obligations hereunder shall remain in full force and
effect and this Guarantee be construed accordingly as if there
were no such voidness, frustration, unenforceability or
invalidity;
(c) any legal limitation, disability, incapacity or other
circumstances relating to the Borrower or any other party;
(d) any intermediate payment or settlement of account or satisfaction
of the whole or any part of any sum or sums of money due or owing
to the Finance Parties under the Facility Agreement or this
Guarantee or any other Security Document or otherwise and shall
extend to cover all moneys which shall from time to time be owing
by the Borrower to the Finance Parties under the Facility
Agreement and the Security Documents to which it is a party and
by the Guarantor to the Finance Parties under this Guarantee and
4
all moneys outstanding and not immediately payable for which the
Borrower is absolutely or contingently liable to the Finance
Parties thereunder and Guarantor is absolutely or contingently
liable to the Finance Parties hereunder;
(e) any change by amalgamation, reconstruction or otherwise which may
be made in the constitution of the company by which the business
of any of the Finance Parties may for the time being be carried
on and shall be available to the company carrying on the business
of the such Finance Parties for the time being;
(f) (i) any time, covenant not to ▇▇▇, indulgence, concession, waiver
or consent at any time given to the Borrower or any other person,
(ii) any alteration, amendment, variation, supplement, renewal or
replacement of any agreement, document, guarantee or Security
Interest (including, without limitation, the Facility Agreement
and the Security Documents), (iii) the making or absence of any
demand on the Borrower or any other person for payment, (iv) the
enforcement or absence of enforcement of any agreement,
guarantee, document or Security Interest (including, without
limitation, the Facility Agreement and the Security Documents),
(v) the taking, existence or release of any agreement, guarantee,
document, Security Interest, right, power, authority, discretion
or remedy, (vi) the bankruptcy, insolvency, winding-up,
dissolution, amalgamation, reconstruction or reorganisation of
the Borrower or any other person (or the commencement of any of
the foregoing), (vii) any arrangement, composition or compromise
entered into by the Borrower or any other person, (viii) any
moratorium or other suspension of any agreement, guarantee,
document, Security Interest, right, power, authority, discretion
or remedy, (ix) the illegality, invalidity, unenforceability or
otherwise of limited force or effect of or any defect in any
provision of any agreement, guarantee, document or Security
Interest (including, without limitation, the Facility Agreement
and the Security Documents) or any of the obligations of any of
the parties thereunder, (x) any failure to take, or fully to
take, any Security Interest contemplated by the Facility
Agreement or otherwise agreed to be taken in respect of the Total
Indebtedness, or (xi) any other act, matter or thing whatsoever
which, but for this Clause 3, would or might impair or discharge
the rights of the Finance Parties under this Guarantee or the
Facility Agreement or the other Security Documents.
For the avoidance of doubt and notwithstanding the provisions of Clause 3.3(f),
it is hereby agreed that the provisions of this Guarantee and the obligations
and liabilities of the Guarantor and the Finance Parties hereunder may be
waived, amended, varied and/or supplemented (whether wholly or in part) in
writing executed by the Guarantor and the Agent (with the consent of all the
Term Loan Banks), and such waiver, amendment, variation and/or supplement shall
be valid and enforceable between the parties hereto.
5
3.4 The Guarantor agrees to be bound by this Guarantee notwithstanding
that any other person which has intended to sign or to be bound may not do so or
be effectually bound and notwithstanding that this Guarantee may be determined
or become invalid or unenforceable against any one or more of such persons
whether or not the deficiency is known to the Finance Parties or any of them.
3.5 The Agent may place and keep any monies received by virtue of this
Guarantee (whether before or after the insolvency, bankruptcy or winding-up of
the Borrower or any other person) to the credit of a suspense account for so
long as the Agent may think fit in order to preserve the rights of the Finance
Parties to ▇▇▇ or prove for the whole of the Total Indebtedness against the
Borrower or any other person.
3.6 The security created by this Guarantee shall constitute and be a
continuing security notwithstanding any settlement of account or reduction or
repayment of the Total Indebtedness for the time being owing or any other matter
or thing whatsoever and shall be in addition to, and shall not be merged in, or
be in any way prejudiced or affected by any collateral or other security from
time to time held or judgment or order obtained by the Finance Parties or any of
them for all or any part of the Total Indebtedness nor shall any such collateral
or other security, judgment or order or any lien to which the Finance Parties or
any of them may be otherwise entitled or the liability of the Borrower or any
others not parties hereto for all or any part of the Total Indebtedness be in
any way prejudiced or affected by this Guarantee.
3.7 The Guarantor shall, from time to time upon being required to do so by
the Agent, now or at any time in the future, do or procure the doing of all such
acts and/or execute or procure the execution of all such documents, in form and
substance satisfactory to the Agent, as the Agent may consider necessary or
desirable for giving full effect to this Guarantee and securing to the Finance
Parties the full benefit of the rights, powers and remedies conferred upon the
Finance Parties in this Guarantee.
4. REPRESENTATIONS AND WARRANTIES
------------------------------
4.1 The Guarantor hereby warrants and represents to each of the Finance
Parties as follows:-
(a) Status: it is a corporation incorporated in accordance with, and
------
validly existing under, the laws of the State of Delaware, United
States of America;
(b) Assets: it has the power to own its assets and carry on its
------
business and operations as they are now being conducted and will
maintain, preserve and protect all of its assets in accordance
with good business practice;
(c) Validity: this Guarantee when executed and delivered will
--------
constitute its legal, valid, binding and enforceable obligations
in accordance with its terms;
(d) Authorisations and consents: all acts, conditions and things
---------------------------
required to be done, fulfilled and performed (including the
6
obtaining of any necessary consents) in order (aa) to enable it
lawfully to enter into, exercise its rights under and perform and
comply with the obligations expressed to be assumed by it in this
Guarantee, (bb) to ensure that the obligations expressed to be
assumed by it in this Guarantee are legal, valid, binding and
enforceable, and (cc) to make this Guarantee admissible in
evidence in the State of Delaware, United States of America and
Singapore, have been done, fulfilled and performed;
(e) Non-conflict: its entry into and performance of this Guarantee
------------
and the transactions contemplated hereby do not and will not:-
(i) conflict with (aa) its Bye-laws or other constitutional
documents, (bb) any law or any official or judicial order
applicable to it or otherwise binding on it, or (cc) any
agreement or document to which it is a party or which is
binding on it or its assets; or
(ii) result in the creation or imposition of (or enforceability
of) any Security Interest on or over all or any of its
assets pursuant to the provisions of any agreement or
document;
(f) Litigation: no litigation, arbitration or administrative
----------
proceedings or claims which might by itself or together with any
other such proceedings or claims have a material adverse effect
on it is presently in progress or pending or, to the best of its
knowledge, information and belief, threatened against it or any
of its assets;
(g) Solvency: it is solvent; no appointment of a receiver and/or
--------
manager, judicial manager, liquidator, administrator or similar
officer has been or is being made;
(h) Corporate documents: copies of its Bye-laws and other
-------------------
constitutional documents and certified extracts of its board
resolutions delivered to the Agent are true and accurate copies
of its corporate records;
(i) Information: all of the written information supplied to the
-----------
Agent are true, complete and accurate in all material respects
and it is not aware of any fact or circumstance that has not been
disclosed to the Finance Parties and which might, if disclosed,
adversely affect the decision of a person considering whether or
not to provide or maintain finance to the Borrower;
(j) Financial statements: its audited financial statements most
--------------------
recently delivered to the Agent:-
(i) have been prepared in accordance with accounting principles
and practices generally accepted in the United States of
America consistently applied; and
7
(ii) present a true and fair view of its financial condition as
at the date to which they were drawn up; since that date
there has been no material adverse change in its financial
condition as shown in such accounts; and
(k) Ownership: (i) the whole of the issued share capital of the
---------
Borrower is legally and beneficially owned by ▇▇▇▇▇▇ Group
(Bermuda) Limited (Company Registration UF19573Z) ("▇▇▇▇▇▇
------
Bermuda"), and (ii) the whole of the issued share capital of
-------
▇▇▇▇▇▇ Bermuda is legally and beneficially owned by the
Guarantor.
4.2 Repetition: Each of the representations and warranties contained in
----------
Clause 4.1 shall survive and continue to have full force and effect after the
execution of this Guarantee and shall be deemed to be repeated on each Interest
Payment Date so long as the Total Indebtedness remains outstanding or the
Facility is in effect, with reference to the facts and circumstances then
subsisting as if made at each such time.
5. UNDERTAKINGS
------------
The Guarantor undertakes and agrees with each of the Finance Parties
that so long as the Total Indebtedness remains outstanding or the Facility is in
effect that:-
(a) Accounts and information: it will:-
------------------------
(i) deliver to the Agent, in sufficient copies for each of the
Finance Parties, as soon as they become available, but in
any event within one hundred and eighty (180) days after
the end of each of its financial periods (which shall not
be longer than fifteen (15) months), copies of its
financial statements for that period, which shall contain
an income statement and a balance sheet, be prepared on a
basis consistently applied, be audited and certified by a
firm of independent accountants of recognised
international standing and if qualified, such
qualification shall not be in a manner which is, in the
opinion of the Agent, material in the context of this
Guarantee, together with the auditor's report;
(ii) deliver to the Agent, in sufficient copies for each of the
Finance Parties, as soon as they become available, but in
any event within ninety (90) days after the end of its
financial period to which they relate, copies of its
unaudited half-yearly financial statements;
(iii) deliver to the Agent, in sufficient copies for each of the
Finance Parties, all notices or other documents dispatched
by it to its shareholders (or any class thereof) or its
creditors generally (or any class thereof); and
8
(iv) promptly supply the Agent with sufficient copies for each of
the Finance Parties with such information (except that of a
proprietary nature) as the Agent may from time to time
reasonably request;
(b) Claims pari passu: it will ensure that its payment obligations
-----------------
under this Guarantee rank at least pari passu with the claims of
all its other direct, unconditional, unsubordinated and general
obligations save those claims which are preferred solely by any
bankruptcy, insolvency, liquidation or other laws of general
application;
(c) Authorisations and consents: it will maintain in full force and
---------------------------
effect all such authorisations and consents as are referred to in
Clause 4.1(d), take prompt steps to obtain any other
authorisation or consent which may be necessary or advisable for
the purposes specified in Clause 4.1(d), and comply with all
terms, conditions and restrictions, if any, imposed in connection
with any of such authorisations and consents and maintain or
accomplish any filing or registration with any Government
Authority which may be or become necessary or advisable for such
purposes;
(d) Performance of this Guarantee: it will perform all covenants,
-----------------------------
provisions, undertakings, terms and conditions on its part to be
performed and observed under this Guarantee;
(e) Notification of change: it will promptly notify the Agent of any
----------------------
event or change in its condition (financial, business or
otherwise) and of any litigation, arbitration or administrative
proceedings being threatened or initiated against it before any
court, tribunal or administrative agency, which might have a
material adverse effect on it, all such notification to be given
to the Agent as soon as practicable after it has knowledge of the
said event or change or of the said proceedings or threat thereof
and the amount of contingent liability, if such amount is
ascertainable; and
(f) Notification of winding-up and judicial management, etc: it will
-------------------------------------------------------
immediately upon becoming aware thereof notify the Agent of any
petition filed or notice for passing of a resolution for the
winding-up or appointment of a judicial manager, trustee,
administrator or similar officer of the Guarantor, such
notification if made verbally to be followed up in writing within
twenty-four (24) hours therefor.
6. PAYMENT PROVISIONS
------------------
6.1 Time and place of payment: All payments to be made by the Guarantor
-------------------------
under or pursuant to this Guarantee shall be made by on the relevant due date,
if due in Yen, in Yen, and in any other case, in the currency in which such
amount is due, as follows:-
9
(a) if due in Yen, by payment in Yen not later than 11.00 a.m.
(Singapore) time on the relevant due date in immediately
available and freely transferable funds (or such other funds as
the Agent determines to be customary in Tokyo for the settlement
in Tokyo of international banking transactions in Yen), to such
account or accounts in Singapore as the Agent may in writing by
prior notice designate; and
(b) if due in any other currency, by payment in that currency to the
Agent not later than 11.00 a.m. (Singapore) time on the relevant
due date in immediately available and freely transferable funds,
to such account or accounts as the Agent may in writing by prior
notice designate.
6.2 Payment on Business Day: If any sum becomes due for payment under or
-----------------------
pursuant this Guarantee on a day which is not a Business Day, such payment shall
be made on the next succeeding day which is a Business Day unless such next
succeeding Business Day falls in the following month in which event such sum
shall be made on the immediately preceding Business Day and all calculations of
interest shall be adjusted accordingly.
6.3 Payment by deduction: Where the Guarantor has failed to make the
--------------------
requisite payment by the relevant due date, the Finance Parties shall in
addition to its other remedies be entitled to effect payment (to the extent not
already paid or discharged) of all fees, expenses and other sums due and payable
by the Guarantor under this Guarantee out of and by deduction against any
account which the Guarantor may have with the Finance Parties or any of them and
the Guarantor hereby authorises each of the Finance Parties to do so.
7. SET-OFF AND WITHHOLDINGS
------------------------
7.1 No set-off or withholdings: All sums payable by the Guarantor to the
--------------------------
Finance Parties under or pursuant to this Guarantee shall be paid in full, free
of any restriction or condition, without set-off or counterclaim and without any
deduction or withholding for or on account of any taxes or otherwise, unless the
deduction or withholding is required by law, in which event the Guarantor
shall:-
(a) notify the Agent as soon as the Guarantor becomes aware of such a
requirement;
(b) ensure that such deduction or withholding does not exceed the
minimum legal liability therefor and forthwith pay to the Agent
for account of the relevant Finance Parties such additional
amount as is necessary to ensure that the relevant Finance
Parties receive on the due date and retains (free from any
liability other than tax on the overall net income of such
Finance Party) a net sum equal to what it would have received and
so retained had no such deduction or withholding been required or
made; and
10
(c) forthwith pay the full amount required to be deducted or withheld
(including, but without prejudice to the generality of the
foregoing, the full amount of any deduction or withholding from
any additional amount paid pursuant to this sub-Clause) to the
relevant taxation or other authority within the time allowed for
such payment under applicable law and promptly deliver to the
Agent, after it has made such payment to the relevant authority,
an original receipt (or a certified true copy thereof) issued by
such authority evidencing the payment to such authority of all
amounts so required to be deducted or withheld in respect of the
relevant Finance Party's share of such payment.
7.2 Indemnities: Without prejudice to the provisions of Clause 7.1, if any
-----------
Finance Party is required by any applicable law to make any payment, whether on
account of tax (not being a tax imposed on the overall net income of such
Finance Party) or otherwise or on or in relation to any sum received or
receivable under this Guarantee by any Finance Party (including, without
limitation, any sum received or receivable under this Clause 7.2) or any
liability in respect of any such payment is asserted, imposed, levied or
assessed against any Finance Party, the Guarantor shall, upon demand of the
Agent, promptly indemnify such Finance Party against such payment or liability,
together with any interest, penalties and expenses payable or incurred in
connection therewith.
7.3 Goods and services tax: The Guarantor shall also pay on demand to the
----------------------
Agent for account of the relevant Finance Parties on demand, in addition to any
amount payable by the Guarantor under or pursuant to this Guarantee, any goods
and services, value added or other similar tax payable in respect of that amount
(and references in this Guarantee to that amount shall be deemed to include any
such taxes payable in addition to it).
7.4 Tax credit: If the Guarantor pays any increased amount under Clause 7.1
----------
and any Finance Party effectively obtains a refund of tax or credit against tax
by reason of that payment, and if such Finance Party is able (in its sole
opinion, which shall not be capable of being challenged) to identify that refund
or credit as being attributable to that payment having regard to its other
activities, then such Finance Party shall reimburse to the Guarantor such amount
as it shall determine (any such determination being conclusive) to be the
proportion of that refund or credit as will leave such Finance Party after that
reimbursement in no better or worse position than it would have been in if that
payment had not been required. None of the Finance Parties shall be obliged to
arrange its tax affairs in any particular manner or to apply for such refund or
credit for itself or the Guarantor or to disclose any information regarding its
tax affairs or computations to the Guarantor.
8. INDEMNITIES
-----------
8.1 Indemnities: The Guarantor shall fully indemnify the Finance Parties
-----------
from and against any expense, loss, damage or liability (as to the amount of
which the certificate of such Finance Party shall, in the absence of manifest
error, be prima facie evidence), whether arising out of this Guarantee or
otherwise, which such Finance Party may incur as a consequence of any default on
the Guarantor's part under or in connection with this Guarantee.
11
8.2 Currency indemnity:
------------------
(a) Any amount received or recovered by any Finance Party in respect
of any sum expressed to be due to it from the Guarantor under
this Guarantee in a currency (the "Payment Currency") other than
----------------
that agreed to be payable hereunder (the "Agreed Currency")
---------------
whether as a result of, or of the enforcement of, a judgment or
order of a court or tribunal of any jurisdiction shall only
constitute a discharge to the Guarantor to the extent of the
amount in the Agreed Currency which such Finance Party is able,
in accordance with its usual practice at such Finance Party's
prevailing exchange rate, to purchase with the amount so received
or recovered in the Payment 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).
(b) If that amount in the Payment Currency is less than the amount in
the Agreed Currency due to such Finance Party under this
Guarantee, the Guarantor shall indemnify it against any loss
sustained by it in that event. In any event, the Guarantor shall
indemnify such Finance Party against the cost of making any such
purchase.
8.3 Independent obligations: The indemnities contained in Clauses 8.1 and
-----------------------
8.2 constitute separate and independent obligations from the other obligations
in this Guarantee, shall give rise to separate and independent causes of action,
shall apply irrespective of any indulgence granted by the Finance Parties and
shall continue in full force and effect whether before and after any judgment,
order, claim or proof for a liquidated amount in respect of any sum due under
this Guarantee or any judgment or order. With regard to Clause 8.2, no proof or
evidence of any actual loss may be required other than proof of the actual
amount in the Agreed Currency purchased by the recipient as mentioned in Clause
8.2(a) and the date upon which such purchase was effected.
9. SET-OFF
-------
Each Finance Party may at any time (whether before or after the
declaration of an Event of Default) without notice to the Guarantor set off or
transfer any credit balance (whether or not then due) to which the Guarantor is
at any time beneficially entitled on any account (expressed in any currency) or
debit such account at any office or branch of such Finance Party (whether in
Singapore or elsewhere) in or towards satisfaction of the Total Indebtedness or
any part thereof then due and unpaid or any money owing to such Finance Party by
the Guarantor hereunder Provided That such debiting shall not constitute a
waiver of any event of default. For that purpose, each Finance Party is
authorised to use all or any part of any such credit balance to buy such other
currencies as may be necessary to effect such application. None of the Finance
Parties shall be obliged to exercise any of its rights under this Clause, which
shall be without prejudice and in addition to any right of set-off, combination
of accounts, lien or other right to which it is at any time otherwise entitled
(whether by operation of law, contract or otherwise). Each Finance Party shall
through the Agent notify the Guarantor within three (3) Business Days after the
exercise by it of any of its rights under this Clause.
12
10. NOTICES
-------
10.1 Address: Each notice or other communication under this Guarantee shall
-------
be made by facsimile, letter or otherwise in writing. Each notice or other
communication to be delivered to any party under this Guarantee shall be sent to
that party at the facsimile number or address, and marked for the attention of
the person (if any), from time to time designated by that party to the other
party for the purpose of this Guarantee. The initial facsimile number, address
and person (if any) so designated by each party are set out under its name at
the end of this Guarantee. Any notice or other communication or document to the
Borrower under this Guarantee shall be sent to, by or through, the Agent.
10.2 Deemed delivery: Any notice or other communication from the Guarantor
---------------
shall be irrevocable and shall not be effective until received by the Agent. Any
notice or other communication from the Agent to the Guarantor shall be deemed to
be received by the Guarantor (if sent by facsimile) 24 hours after despatch or
(in any other case) when left at the address required by Clause 10.1 and receipt
thereof acknowledged by the Guarantor or within three (3) Business Days after
being sent by pre-paid registered post addressed to it at that address.
11. SUCCESSORS BOUND
----------------
11.1 This Guarantee shall be binding upon and enure to the benefit of the
parties hereto and their respective successors and permitted assigns (as the
case may be), but the Guarantor shall not assign or transfer all or any of its
rights and obligations hereunder.
11.2 Each of the Finance Parties may assign this Guarantee or the whole or a
portion of its rights hereunder to any financial institution to which it sells
or assigns all or any part of its share of the Facility, in which event
references herein to each Finance Party shall thenceforth be deemed to include a
reference to such assignee to the extent of its interest.
12. MISCELLANEOUS
-------------
12.1 Evidence of indebtedness: In any legal action or proceedings arising
------------------------
out of or in connection with the this Guarantee a statement as to any amount due
to any Finance Party under this Guarantee which is certified as being correct by
a duly authorised officer or officers of such Finance Party shall (unless
otherwise provided in this Guarantee), in the absence of manifest error, be
prima facie evidence of the existence and the amounts of the obligations of the
Guarantor.
12.2 Certificates and determinations: Except as otherwise provided under
-------------------------------
the provisions of this Guarantee or otherwise directed by a court of law, any
certificate, determination or notification by any Finance Party as to any amount
payable to it under this Guarantee is conclusive and binding on the Guarantor,
save for manifest error, and any other certificate, determination, notification,
opinion or the like of any Finance Party provided for in this Guarantee is prima
facie evidence of the matter to which it relates, save for manifest error.
13
12.3 Application of moneys: If any sum paid or recovered in respect of the
---------------------
liabilities of the Guarantor under this Guarantee is less than the amount then
due, the Agent shall apply that sum in accordance with Clause 18.3 of the
Facility Agreement.
12.4 Waivers and consents: No delay or omission on the part of any Finance
--------------------
Party in exercising any right or remedy under this Guarantee shall impair that
right or remedy or operate as or be taken to be a waiver of it, nor shall any
single partial or defective exercise by any Finance Party of any such right or
remedy preclude any other or further exercise under this Guarantee of that or
any other right or remedy; and no act or course of conduct or negotiation on its
part or on its behalf shall in any way preclude it from exercising any such
right or remedy or constitute a suspension or variation of any such right or
remedy. Any waiver by any Finance Party under any provision of this Guarantee
must be in writing and may be given subject to any conditions as such Finance
Party may think fit. Any waiver or consent shall be effective only in the
instance and for the purpose for which it is given. Any waiver may be given
before or after a breach occurs. The rights and remedies provided in this
Guarantee are cumulative and are not exclusive of any rights or remedies
provided by law.
12.5 Disclosure: Each of the Finance Parties and all persons to whom Section
----------
47(3) of the Banking Act (Cap. 19) applies may, for the purposes of Section
47(4)(a) of the Banking Act (Cap. 19) or other law, from time to time disclose
on a confidential basis to any Government Authority in Singapore or relevant
jurisdiction, any person who derives or may derive rights under or by reference
to this Guarantee (including but not limited to any actual or potential
participant, assignee, transferee or lender) such information in relation to the
Guarantor, this Guarantee, the money and other relevant particulars of any
account which the Guarantor has with any Finance Party, as it may be required.
12.6 Severance: The illegality, invalidity or unenforceability of any
---------
provision of this Guarantee under the laws of any jurisdiction shall not affect
its legality, validity or enforceability under the laws of any other
jurisdiction nor the legality, validity or enforceability of any other
provision.
12.7 Counterparts: This Guarantee may be signed in any number of
------------
counterparts, all of which taken together and when delivered to the Agent shall
constitute one and the same instrument. Any party may enter into this Guarantee
by signing any such counterpart.
12.8 Governing law: This Guarantee shall be governed by and construed in
-------------
accordance with the laws of Singapore.
12.9 Submission to jurisdiction: In relation to any legal action or
---------------------------
proceedings against the Guarantor or any of its property arising out of or in
connection with this Guarantee ("Proceedings"), the Guarantor hereby irrevocably
-----------
consents to such Proceedings being brought in the courts of Singapore and/or any
state or Federal court in Connecticut and the City of New York, United States of
America, as the Agent may elect and by execution and delivery of this Guarantee
the Guarantor hereby submits to and accepts with regard to such Proceedings, for
itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. These submissions shall not affect the
right of any Finance Party to take Proceedings in any other jurisdiction nor
shall the taking of Proceedings in any jurisdiction preclude the Finance Parties
from taking Proceedings in any other jurisdiction, whether concurrently or not.
The Guarantor
14
irrevocably consents to the service of process in any such Proceedings by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
the Guarantor at its address as provided in Clause 10.1. The foregoing, however,
shall not limit the rights of the Finance Parties to serve process in any other
manner permitted by law. The Guarantor hereby irrevocably:-
(a) appoints the Borrower whose registered office is now at ▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to receive, for and on behalf
of the Guarantor any service of process in Singapore in any
Proceedings with respect to this Guarantee;
(b) agrees to maintain in Singapore a duly appointed process agent,
notified to the Agent, for the purposes of sub-clause (a) above;
(c) agrees that failure by any such process agent to give notice of
such process to it shall not impair the validity of such service
or of any judgment or order based thereon;
(d) consents to the service of process out of any of the said courts
in any such proceedings by the airmailing of copies, postage
prepaid, to the Guarantor at its said address; and
(e) agrees that nothing herein shall affect the right to serve
process in any other manner permitted by law.
The Guarantor hereby irrevocably waives any objection which may now or hereafter
have to the laying of the venue of any Proceedings in Singapore, the State of
Connecticut and/or the State of New York and further waives any claim that any
of Singapore and the State of Connecticut and State of New York is not a
convenient forum for such Proceeding.
12.10 Costs and expenses: All legal and other fees and out-of-pocket
------------------
expenses (including, without limitation, goods and services tax) reasonably
incurred by the Finance Parties or payable in connection with the preparation,
execution, completion, filing and registration of this Guarantee and all the
other documents referred to in this Guarantee, unless paid or discharged by the
Borrower, shall be paid by the Guarantor.
12.11 Enforcement expenses: All legal fees on a full indemnity basis and
--------------------
other costs and disbursements (including, without limitation, goods and services
tax) reasonably incurred by the Finance Parties or payable in connection with
demanding and enforcing payment of moneys due under this Guarantee and all the
other documents referred to in this Guarantee and otherwise howsoever in
enforcing or contemplation of the enforcement of the performance of any of the
undertakings, stipulations, terms, conditions or provisions of this Guarantee
shall be paid by the Guarantor.
12.12 GST and others: Any stamp duty, levies, transaction taxes (including,
--------------
without limitation, goods and services tax) imposed by law or required to be
paid in respect of any moneys paid or payable to or received or receivable by
the Finance Parties or any expenses incurred by the Finance Parties or incurred
in connection with the execution, delivery, performance or enforcement of this
Guarantee and all the other documents referred to in this Guarantee shall
(except to the extent prohibited by law) be borne and paid by the Guarantor.
15
12.13 Language: All notices or communications under or in connection with
--------
this Guarantee shall be in English or, if in any other language, accompanied by
a translation into English certified as the Agent may require. In the event of
any conflict between the English text and the text in any other language, the
English text shall prevail.
IN WITNESS WHEREOF this Guarantee was executed as a deed.
16
The Guarantor
-------------
▇▇▇▇▇▇ GROUP INC., ) Subscribed and sworn to before me
a Delaware corporation ) this 18th day of June 2001.
by: Sd. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ )
its: Assistant Treasurer ) Sd. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Notary Public
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Telephone No.: (1) (▇▇▇) ▇▇▇ ▇▇▇▇
Facsimile No.: (1) (▇▇▇) ▇▇▇ ▇▇▇▇
Attention: ▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Treasurer
The Agent
---------
SIGNED SEALED and DELIVERED )
for and on behalf of )
THE DEVELOPMENT BANK )
OF SINGAPORE LIMITED ) Affixed a Seal
by its Attorney )
TAN ▇▇ ▇▇▇ ) Sd. Tan ▇▇ ▇▇▇
acting under a Power of Attorney )
dated the 28th day of March 2000 )
(a copy of which was deposited )
in the Registry, Supreme Court, )
Singapore on the 10th day of )
April 2000 and registered as )
No. 2645 of 2000) in the )
presence of:- )
Sd. ▇▇▇▇▇▇ ▇▇▇▇
-----------------
Name of Witness: ▇▇▇▇▇▇ ▇▇▇▇
Address: ▇ ▇▇▇▇▇▇▇ ▇▇▇ #▇▇-▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇) ▇▇▇ ▇▇▇▇
Facsimile No.: (▇▇) ▇▇▇ ▇▇▇▇
Attention: Advisory Banking, Investment Banking Group
EXHIBIT 10.3
------------
(Multicurrency -- Cross Border)
ISDA (R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of 19 June 2001
------------
ASSOCIATED SPRING-ASIA PTE LTD and THE DEVELOPMENT BANK OF SINGAPORE LIMITED
------------------------------ -----------------------------------------
have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as follows: --
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions of
the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the fact
that this Master Agreement and all Confirmations form a single agreement between
the parties (collectively referred to as this "Agreement"), and the parties
would not otherwise enter into any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of
this Agreement.
(ii) Payments under this Agreement will be made on the due date for
value on that date in the place of the account specified in the
relevant Confirmation or otherwise pursuant to this Agreement, in
freely transferable funds and in the manner customary for payments
in the required currency. Where settlement is by delivery (that
is, other than by payment), such delivery will be made for receipt
on the due date in the manner customary for the relevant
obligation unless otherwise specified in the relevant Confirmation
or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or Potential
Event of Default with respect to the other party has occurred and
is continuing, (2) the condition precedent that no Early
Termination Date in respect of the relevant Transaction has
occurred or been effectively designated and (3) each other
applicable condition precedent specified in this Agreement.
1
(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable
objection to such change.
(c) Netting. If on any date amounts would otherwise be payable:--
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to make
payment of any such amount will be automatically satisfied and discharged and,
if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by whom the larger aggregate
amount would have been payable to pay to the other party the excess of the
larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be made
in the Schedule or a Confirmation by specifying that subparagraph (ii) above
will not apply to the Transactions identified as being subject to the election,
together with the starting date (in which case subparagraph (ii) above will not,
or will cease to, apply to such Transactions from such date). This election may
be made separately for different groups of Transactions and will apply
separately to each pairing of Offices through which the parties make and receive
payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as
modified by the practice of any relevant governmental revenue
authority, then in effect. If a party is so required to deduct or
withhold, then that party ("X") will:--
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to be
deducted or withheld including the full amount required to be
deducted or withheld from any additional amount paid by X to Y
under this Section 2(d)) promptly upon the earlier of determining
that such deduction or withholding is required or receiving
notice that such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy),
or other documentation reasonably acceptable to Y, evidencing
such payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to the
payment to which Y is otherwise entitled under this Agreement,
such additional amount as is necessary to ensure that the net
amount actually received by Y (free and clear of Indemnifiable
Taxes, whether assessed against X or Y) will equal the full
amount Y would have received had no such deduction or withholding
been required. However, X will not be required to pay any
additional amount to Y to the extent that it would not be
required to be paid but for:--
(A) the failure by Y to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d); or
2
(B) the failure of a representation made by Y pursuant to Section
3(f) to be accurate and true unless such failure would not have
occurred but for (I) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the
date on which a Transaction is entered into (regardless of
whether such action is taken or brought with respect to a party
to this Agreement) or (II) a Change in Tax Law.
(ii) Liability. If: --
(1) X is required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, to make any
deduction or withholding in respect of which X would not be
required to pay an additional amount to Y under Section
2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly against
X,
then, except to the extent Y has satisfied or then satisfies the liability
resulting from such Tax, Y will promptly pay to X the amount of such
liability (including any related liability for interest, but including any
related liability for penalties only if Y has failed to comply with or
perform any agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) Default Interest; Other Amounts. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant Transaction,
a party that defaults in the performance of any payment obligation will, to the
extent permitted by law and subject to Section 6(c), be required to pay interest
(before as well as after judgment) on the overdue amount to the other party on
demand in the same currency as such overdue amount, for the period from (and
including) the original due date for payment to (but excluding) the date of
actual payment, at the Default Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed. If, prior to
the occurrence or effective designation of an Early Termination Date in respect
of the relevant Transaction, a party defaults in the performance of any
obligation required to be settled by delivery, it will compensate the other
party on demand if and to the extent provided for in the relevant Confirmation
or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is entered into
and, in the case of the representations in Section 3(f), at all times until the
termination of this Agreement) that:--
(a) Basic Representations.
(i) Status. It is duly organised and validly existing under the laws of
the jurisdiction of its organisation or incorporation and, if relevant
under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to deliver
this Agreement and any other documentation relating to this Agreement that
it is required by this Agreement to deliver and to perform its obligations
under this Agreement and any obligations it has under any Credit Support
Document to which it is a party and has taken all necessary action to
authorise such execution, delivery and performance;
(iii) No Violation or Conflict. Such execution, delivery and performance do
not violate or conflict with any law applicable to it, any provision of its
constitutional documents, any order or judgment of any court or other
agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets;
3
(iv) Consents. All governmental and other consents that are required to
have been obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party have been obtained and are in full
force and effect and all conditions of any such consents have been complied
with; and
(v) Obligations Binding. Its obligations under this Agreement and any
Credit Support Document to which it is a party constitute its legal, valid
and binding obligations, enforceable in accordance with their respective
terms (subject to applicable bankruptcy, reorganisation, insolvency,
moratorium or similar laws affecting creditors' rights generally and
subject, as to enforceability, to equitable principles of general
application (regardless of whether enforcement is sought in a proceeding in
equity or at law)). proceeding in equity or at law)).
(b) Absence of Certain Events. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has occurred
and is continuing and no such event or circumstance would occur as a result of
its entering into or performing its obligations under this Agreement or any
Credit Support Document to which it is a party.
(c) Absence of Litigation. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or proceeding at
law or in equity or before any court, tribunal, governmental body, agency or
official or any arbitrator that is likely to affect the legality, validity or
enforceability against it of this Agreement or any Credit Support Document to
which it is a party or its ability to perform its obligations under this
Agreement or such Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.
(e) Payer Tax Representation. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.
(f) Payee Tax Representations. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(f) is accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party:--
(a) Furnish Specified Information. It will deliver to the other party or, in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs:--
(i) any forms, documents or certificates relating to taxation specified
in the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation;
and
(iii) upon reasonable demand by such other party, any form or document that
may be required or reasonably requested in writing in order to allow such
other party or its Credit Support Provider to make a payment under this
Agreement or any applicable Credit Support Document without any deduction
or withholding for or on account of any Tax or with such deduction or
withholding at a reduced rate (so long as the completion, execution or
submission of such form or document would not materially prejudice the
legal or commercial position of the party in receipt of such demand), with
any such form or document to be accurate and completed in a manner
reasonably satisfactory to such other party and to be executed and to
4
be delivered with any reasonably required certification, in each case by
the date specified in the Schedule or such Confirmation or, if none is
specified, as soon as reasonably practicable.
(b) Maintain Authorisations. It will use all reasonable efforts to maintain in
full force and effect all consents of any governmental or other authority that
are required to be obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party and will use all reasonable efforts to
obtain any that may become necessary in the future.
(c) Comply with Laws. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Agreement or any Credit Support Document to which it is a party.
(d) Tax Agreement. It will give notice of any failure of a representation made
by it under Section 3(f) to be accurate and true promptly upon learning of such
failure.
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance of this
Agreement by a jurisdiction in which it is incorporated, organised, managed and
controlled, or considered to have its seat, or in which a branch or office
through which it is acting for the purpose of this Agreement is located ("Stamp
Tax Jurisdiction") and will indemnify the other party against any Stamp Tax
levied or imposed upon the other party or in respect of the other party's
execution or performance of this Agreement by any such Stamp Tax Jurisdiction
which is not also a Stamp Tax Jurisdiction with respect to the other party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any of the following events constitutes an event of default (an
"Event of Default") with respect to such party:--
(i) Failure to Pay or Deliver. Failure by the party to make, when due,
any payment under this Agreement or delivery under Section 2(a)(i) or 2(e)
required to be made by it if such failure is not remedied on or before the
third Local Business Day after notice of such failure is given to the
party;
(ii) Breach of Agreement. Failure by the party to comply with or perform
any agreement or obligation (other than an obligation to make any payment
under this Agreement or delivery under Section 2(a)(i) or 2(e) or to give
notice of a Termination Event or any agreement or obligation under Section
4(a)(i), 4(a)(iii) or 4(d)) to be complied with or performed by the party
in accordance with this Agreement if such failure is not remedied on or
before the thirtieth day after notice of such failure is given to the
party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of such party
to comply with or perform any agreement or obligation to be complied
with or performed by it in accordance with any Credit Support
Document if such failure is continuing after any applicable grace
period has elapsed;
(2) the expiration or termination of such Credit Support Document or
the failing or ceasing of such Credit Support Document to be in full
force and effect for the purpose of this Agreement (in either case
other than in accordance with its terms) prior to the satisfaction of
all obligations of such party under each Transaction to which such
Credit Support Document relates without the written consent of the
other party; or
5
(3) the party or such Credit Support Provider disaffirms, disclaims,
repudiates or rejects, in whole or in part, or challenges the
validity of, such Credit Support Document;
(iv) Misrepresentation. A representation (other than a representation
under Section 3(e) or (f)) made or repeated or deemed to have been made or
repeated by the party or any Credit Support Provider of such party in this
Agreement or any Credit Support Document proves to have been incorrect or
misleading in any material respect when made or repeated or deemed to have
been made or repeated;
(v) Default under Specified Transaction. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such party (1)
defaults under a Specified Transaction and, after giving effect to any
applicable notice requirement or grace period, there occurs a liquidation
of, an acceleration of obligations under, or an early termination of, that
Specified Transaction, (2) defaults, after giving effect to any applicable
notice requirement or grace period, in making any payment or delivery due
on the last payment, delivery or exchange date of, or any payment on early
termination of, a Specified Transaction (or such default continues for at
least three Local Business Days if there is no applicable notice
requirement or grace period) or (3) disaffirms, disclaims, repudiates or
rejects, in whole or in part, a Specified Transaction (or such action is
taken by any person or entity appointed or empowered to operate it or act
on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a default, event
of default or other similar condition or event (however described) in
respect of such party, any Credit Support Provider of such party or any
applicable Specified Entity of such party under one or more agreements or
instruments relating to Specified Indebtedness of any of them (individually
or collectively) in an aggregate amount of not less than the applicable
Threshold Amount (as specified in the Schedule) which has resulted in such
Specified Indebtedness becoming, or becoming capable at such time of being
declared, due and payable under such agreements or instruments, before it
would otherwise have been due and payable or (2) a default by such party,
such Credit Support Provider or such Specified Entity (individually or
collectively) in making one or more payments on the due date thereof in an
aggregate amount of not less than the applicable Threshold Amount under
such agreements or instruments (after giving effect to any applicable
notice requirement or grace period);
(vii) Bankruptcy. The party, any Credit Support Provider of such party or
any applicable Specified Entity of such party: --
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is unable to pay
its debts or fails or admits in writing its inability generally to
pay its debts as they become due; (3) makes a general assignment,
arrangement or composition with or for the benefit of its creditors;
(4) institutes or has instituted against it a proceeding seeking a
judgment of insolvency or bankruptcy or any other relief under any
bankruptcy or insolvency law or other similar law affecting
creditors' rights, or a petition is presented for its winding-up or
liquidation, and, in the case of any such proceeding or petition
instituted or presented against it, such proceeding or petition (A)
results in a judgment of insolvency or bankruptcy or the entry of an
order for relief or the making of an order for its winding-up or
liquidation or (B) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution or
presentation thereof; (5) has a resolution passed for its winding-
up, official management or liquidation (other than pursuant to a
consolidation, amalgamation or merger); (6) seeks or becomes subject
to the appointment of an administrator, provisional liquidator,
conservator, receiver, trustee, custodian or other similar official
for it or for all or substantially all its assets; (7) has a secured
party take possession of all or substantially all its assets or has
a distress, execution, attachment, sequestration or other legal
process levied, enforced or sued on or against all or substantially
all its assets and such secured party maintains possession, or any
such process is not dismissed, discharged, stayed or restrained, in
each case within 30 days thereafter; (8) causes or is subject to any
event with respect to it which, under the applicable laws of any
jurisdiction, has an analogous effect to any of the events specified
in clauses (1) to (7) (inclusive); or (9) takes any
6
action in furtherance of, or indicating its consent to, approval of,
or acquiescence in, any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit Support Provider
of such party consolidates or amalgamates with, or merges with or into, or
transfers all or substantially all its assets to, another entity and, at
the time of such consolidation, amalgamation, merger or transfer: --
(1) the resulting, surviving or transferee entity fails to assume
all the obligations of such party or such Credit Support Provider
under this Agreement or any Credit Support Document to which it or
its predecessor was a party by operation of law or pursuant to an
agreement reasonably satisfactory to the other party to this
Agreement; or
(2) the benefits of any Credit Support Document fail to extend
(without the consent of the other party) to the performance by such
resulting, surviving or transferee entity of its obligations under
this Agreement.
(b) Termination Events. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any event specified below constitutes an Illegality if the
event is specified in (i) below, a Tax Event if the event is specified in (ii)
below or a Tax Event Upon Merger if the event is specified in (iii) below, and,
if specified to be applicable, a Credit Event Upon Merger if the event is
specified pursuant to (iv) below or an Additional Termination Event if the event
is specified pursuant to (v) below:--
(i) Illegality. Due to the adoption of, or any change in, any applicable
law after the date on which a Transaction is entered into, or due to the
promulgation of, or any change in, the interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any
applicable law after such date, it becomes unlawful (other than as a result
of a breach by the party of Section 4(b)) for such party (which will be the
Affected Party): --
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in respect of
such Transaction or to comply with any other material provision of
this Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party to
perform, any contingent or other obligation which the party (or such
Credit Support Provider) has under any Credit Support Document
relating to such Transaction;
(ii) Tax Event. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the date on which
a Transaction is entered into (regardless of whether such action is taken
or brought with respect to a party to this Agreement) or (y) a Change in
Tax Law, the party (which will be the Affected Party) will, or there is a
substantial likelihood that it will, on the next succeeding Scheduled
Payment Date (1) be required to pay to the other party an additional amount
in respect of an Indemnifiable Tax under Section 2(d)(i)(4) (except in
respect of interest under Section 2(e), 6(d)(ii) or 6(e)) or (2) receive a
payment from which an amount is required to be deducted or withheld for or
on account of a Tax (except in respect of interest under Section 2(e),
6(d)(ii) or 6(e)) and no additional amount is required to be paid in
respect of such Tax under Section 2(d)(i)(4) (other than by reason of
Section 2(d)(i)(4)(A) or (B));
(iii) Tax Event Upon Merger. The party (the "Burdened Party") on the next
succeeding Scheduled Payment Date will either (1) be required to pay an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount has been deducted or
withheld for or on account of any Indemnifiable Tax
7
in respect of which the other party is not required to pay an additional
amount (other than by reason of Section 2(d)(i)(4)(A) or (B)), in either
case as a result of a party consolidating or amalgamating with, or merging
with or into, or transferring all or substantially all its assets to,
another entity (which will be the Affected Party) where such action does
not constitute an event described in Section 5(a)(viii);
(iv) Credit Event Upon Merger. If "Credit Event Upon Merger" is specified
in the Schedule as applying to the party, such party ("X"), any Credit
Support Provider of X or any applicable Specified Entity of X consolidates
or amalgamates with, or merges with or into, or transfers all or
substantially all its assets to, another entity and such action does not
constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee entity is
materially weaker than that of X, such Credit Support Provider or such
Specified Entity, as the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee, as appropriate, will
be the Affected Party); or
(v) Additional Termination Event. If any "Additional Termination Event" is
specified in the Schedule or any Confirmation as applying, the occurrence
of such event (and, in such event, the Affected Party or Affected Parties
shall be as specified for such Additional Termination Event in the Schedule
or such Confirmation).
(c) Event of Default and Illegality. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes
an Illegality, it will be treated as an Illegality and will not constitute
an Event of Default.
6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event of
Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of
Default, designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all outstanding Transactions. If, however,
"Automatic Early Termination" is specified in the Schedule as applying to a
party, then an Early Termination Date in respect of all outstanding Transactions
will occur immediately upon the occurrence with respect to such party of an
Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the
extent analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party, specifying the
nature of that Termination Event and each Affected Transaction and will
also give such other information about that Termination Event as the other
party may reasonably require.
(ii) Transfer to Avoid Termination Event. If either an Illegality under
Section 5(b)(i)(1) or a Tax Event occurs and there is only one Affected
Party, or if a Tax Event Upon Merger occurs and the Burdened Party is the
Affected Party, the Affected Party will, as a condition to its right to
designate an Early Termination Date under Section 6(b)(iv), use all
reasonable efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer within 20 days after
it gives notice under Section 6(b)(i) all its rights and obligations under
this Agreement in respect of the Affected Transactions to another of its
Offices or Affiliates so that such Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days after
the notice is given under Section 6(b)(i).
8
Any such transfer by a party under this Section 6(b)(ii) will be subject to
and conditional upon the prior written consent of the other party, which
consent will not be withheld if such other party's policies in effect at
such time would permit it to enter into transactions with the transferee on
the terms proposed.
(iii) Two Affected Parties. If an Illegality under Section 5(b)(i)(1) or a
Tax Event occurs and there are two Affected Parties, each party will use
all reasonable efforts to reach agreement within 30 days after notice
thereof is given under Section 6(b)(i) on action to avoid that Termination
Event.
(iv) Right to Terminate. If: --
(1) a transfer under Section 6(b)(ii) or an agreement under Section
6(b)(iii), as the case may be, has not been effected with respect to
all Affected Transactions within 30 days after an Affected Party
gives notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax Event Upon
Merger occurs and the Burdened Party is not the Affected Party,
either party in the case of an Illegality, the Burdened Party in the case
of a Tax Event Upon Merger, any Affected Party in the case of a Tax Event
or an Additional Termination Event if there is more than one Affected
Party, or the party which is not the Affected Party in the case of a Credit
Event Upon Merger or an Additional Termination Event if there is only one
Affected Party may, by not more than 20 days notice to the other party and
provided that the relevant Termination Event is then continuing, designate
a day not earlier than the any such notice is effective as an Early
Termination Date in respect of all Affected Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under
Section 6(a) or (b), the Early Termination Date will occur on the date so
designated, whether or not the relevant Event of Default or Termination
Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early Termination
Date, no further payments or deliveries under Section 2(a)(i) or 2(e) in
respect of the Terminated Transactions will be required to be made, but
without prejudice to the other provisions of this Agreement. The amount, if
any, payable in respect of an Early Termination Date shall be determined
pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and will
provide to the other party a statement (1) showing, in reasonable detail,
such calculations (including all relevant quotations and specifying any
amount payable under Section 6(e)) and (2) giving details of the relevant
account to which any amount payable to it is to be paid. In the absence of
written confirmation from the source of a quotation obtained in determining
a Market Quotation, the records of the party obtaining such quotation will
be conclusive evidence of the existence and accuracy of such quotation.
(ii) Payment Date. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day that
notice of the amount payable is effective (in the case of an Early
Termination Date which is designated or occurs as a result of an Event of
Default) and on the day which is two Local Business Days after the day on
which notice of the amount payable is effective (in the case of an Early
Termination Date which is designated as a result of a Termination Event).
Such amount
9
will be paid together with (to the extent permitted under applicable law)
interest thereon (before as well as after judgment) in the Termination
Currency, from (and including) the relevant Early Termination Date to (but
excluding) the date such amount is paid, at the Applicable Rate. Such
interest will be calculated on the basis of daily compounding and the
actual number of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the Schedule
of a payment measure, either "Market Quotation" or "Loss", and a payment method,
either the "First Method" or the "Second Method". If the parties fail to
designate a payment measure or payment method in the Schedule, it will be deemed
that "Market Quotation" or the "Second Method", as the case may be, shall apply.
The amount, if any, payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from an Event
of Default: --
(1) First Method and Market Quotation. If the First Method and Market
Quotation apply, the Defaulting Party will pay to the Non-defaulting
Party the excess, if a positive number, of (A) the sum of the
Settlement Amount (determined by the Non-defaulting Party) in respect
of the Terminated Transactions and the Termination Currency Equivalent
of the Unpaid Amounts owing to the Non-defaulting Party over (B) the
Termination Currency Equivalent of the Unpaid Amounts owing to the
Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply, the
Defaulting Party will pay to the Non-defaulting Party, if a positive
number, the Non-defaulting Party's Loss in respect of this Agreement.
(3) Second Method and Market Quotation. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A) the sum
of the Settlement Amount (determined by the Non-defaulting Party) in
respect of the Terminated Transactions and the Termination Currency
Equivalent of the Unpaid Amounts owing to the Non-defaulting Party
less (B) the Termination Currency Equivalent of the Unpaid Amounts
owing to the Defaulting Party. If that amount is a positive number,
the Defaulting Party will pay it to the Non-defaulting Party; if it is
a negative number, the Non-defaulting Party will pay the absolute
value of that amount to the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss apply, an
amount will be payable equal to the Non-defaulting Party's Loss in
respect of this Agreement. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting Party; if it is a
negative number, the Non-defaulting Party will pay the absolute value
of that amount to the Defaulting Party.
(ii) Termination Events. If the Early Termination Date results from a
Termination Event: --
(1) One Affected Party. If there is one Affected Party, the amount
payable will be determined in accordance with Section 6(e)(i)(3), if
Market Quotation applies, or Section 6(e)(i)(4), if Loss applies,
except that, in either case, references to the Defaulting Party and to
the Non-defaulting Party will be deemed to be references to the
Affected Party and the party which is not the Affected Party,
respectively, and, if Loss applies and fewer than all the Transactions
are being terminated, Loss shall be calculated in respect of all
Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties: --
(A) if Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated Transactions, and
an amount will be payable equal to (I) the
10
sum of (a) one-half of the difference between the Settlement
Amount of the party with the higher Settlement Amount ("X")
and the Settlement Amount of the party with the lower
Settlement Amount ("Y") and (b) the Termination Currency
Equivalent of the Unpaid Amounts owing to X less (II) the
Termination Currency Equivalent of the Unpaid Amounts owing
to Y; and
(B) if Loss applies, each party will determine its Loss in
respect of this Agreement (or, if fewer than all the
Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable equal
to one-half of the difference between the Loss of the party
with the higher Loss ("X") and the Loss of the party with
the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X; if
it is a negative number, X will pay the absolute value of that
amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination" applies in
respect of a party, the amount determined under this Section 6(e) will be
subject to such adjustments as are appropriate and permitted by law to
reflect any payments or deliveries made by one party to the other under
this Agreement (and retained by such other party) during the period from
the relevant Early Termination Date to the date for payment determined
under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation applies an
amount recoverable under this Section 6(e) is a reasonable pre-estimate of
loss and not a penalty. Such amount is payable for the loss of bargain and
the loss of protection against future risks and except as otherwise
provided in this Agreement neither party will be entitled to recover any
additional damages as a consequence of such losses.
7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of the
other party, except that: --
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to any
other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in any
amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be void.
8. Contractual Currency
(a) Payment in the Contractual Currency. Each payment under this Agreement will
be made in the relevant currency specified in this Agreement for that payment
(the "Contractual Currency"). To the extent permitted by applicable law, any
obligation to make payments under this Agreement in the Contractual Currency
will not be discharged or satisfied by any tender in any currency other than the
Contractual Currency, except to the extent such tender results in the actual
receipt by the party to which payment is owed, acting in a reasonable manner and
in good faith in converting the currency so tendered into the Contractual
Currency, of the full amount in the Contractual Currency of all amounts payable
in respect of this Agreement. If for any reason the amount in the Contractual
Currency so received falls short of the amount in the Contractual Currency
payable in respect of this Agreement, the party required to make the payment
will, to the extent permitted by applicable law, immediately pay such additional
11
amount in the Contractual Currency as may be necessary to compensate for the
shortfall. If for any reason the amount in the Contractual Currency so received
exceeds the amount in the Contractual Currency payable in respect of this
Agreement, the party receiving the payment will refund promptly the amount of
such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the Contractual
Currency received by such party as a consequence of sums paid in such other
currency and will refund promptly to the other party any excess of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency if such shortfall or such excess arises or results from any
variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgment or order for the purposes of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner and in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency with the
amount of the currency of the judgment or order actually received by such party.
The term "rate of exchange" includes, without limitation, any premiums and costs
of exchange payable in connection with the purchase of or conversion into the
Contractual Currency.
(c) Separate Indemnities. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the party
to which any payment is owed and will not be affected by judgment being obtained
or claim or proof being made for any other sums payable in respect of this
Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced by
a facsimile transmission) and executed by each of the parties or confirmed by an
exchange of telexes or electronic messages on an electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts (including by
facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether orally or
otherwise). A Confirmation shall he entered into as soon as
12
practicable and may he executed and delivered in counterparts (including by
facsimile transmission) or be created by an exchange of telexes or by an
exchange of electronic messages on an electronic messaging system, which in
each case will be sufficient for all purposes to evidence a binding
supplement to this Agreement. The parties will specify therein or through
another effective means that any such counterpart, telex or electronic
message constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise, of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than its head or home office
represents to the other party that, notwithstanding the place of booking office
or jurisdiction of incorporation or organisation of such party, the obligations
of such party are the same as if it had entered into the Transaction through its
head or home office. This representation will be deemed to be repeated by such
party on each date on which a Transaction is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office through
which it makes and receives payments or deliveries with respect to a Transaction
will be specified in the relevant Confirmation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support Document to
which the Defaulting Party is a party or by reason of the early termination of
any Transaction, including, but not limited to, costs of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:--
(i) if in writing and delivered in person or by courier, on the date it
is delivered;
(ii) if sent by telex, on the date the recipient's answer back is
received;
(iii) if sent by facsimile transmission, on the date that transmission is
received by a responsible employee of the recipient in legible form (it
being agreed that the burden of proving receipt will be on the sender and
will not be met by a transmission report generated by the sender's
facsimile machine);
13
(iv) if sent by certified or registered mail (airmail, if overseas) or the
equivalent (return receipt requested), on the date that mail is delivered
or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic
message is received, unless the date of that delivery (or attempted
delivery) or that receipt, as applicable, is not a Local Business Day or
that communication is delivered (or attempted) or received, as applicable,
after the close of business on a Local Business Day, in which case that
communication shall be deemed given and effective on the first following
day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating to
this Agreement ("Proceedings"), each party irrevocably:--
(i) submits to the jurisdiction of the English courts, if this Agreement
is expressed to be governed by English law, or to the non-exclusive
jurisdiction of the courts of the State of New York and the United
States District Court located in the Borough of Manhattan in New York
City, if this Agreement is expressed to be governed by the laws of the
State of New York; and
(ii) waives any objection which it may have at any time to the laying of
venue of any Proceedings brought in any such court, waives any claim
that such Proceedings have been brought in an inconvenient forum and
further waives the right to object, with respect to such Proceedings,
that such court does not have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments ▇▇▇ ▇▇▇▇ or any modification, extension or re-
enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process Agent (if
any) specified opposite its name in the Schedule to receive, for it and on its
behalf, service of process in any Proceedings. If for any to reason any party's
Process Agent is unable to act as such, such party will promptly notify the
other party and within 30 days appoint a substitute process agent acceptable to
the other party. The parties irrevocably consent to service of process given in
the manner provided for notices in Section 12. Nothing in this Agreement will
affect the right of either party to serve process in any other manner permitted
by law.
(d) Waiver of Immunities. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and assets
(irrespective of their use or intended use), all immunity on the grounds of
sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.
14. Definitions
14
As used in this Agreement:--
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control" of
any entity or person means ownership of a majority of the voting power of the
entity or person.
"Applicable Rate" means:--
(a) in respect of obligations payable or deliverable (or which would have been
but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either
party from and after the date (determined in accordance with Section 6(d)(ii))
on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which would
have been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default
Rate; and
(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or ratification
of, or any change in or amendment to, any law (or in the application or official
interpretation of any law) that occurs on or after the date on which the
relevant Transaction is entered into.
"consent" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is specified as
such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
15
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with Section
6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if applicable,
in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"Indemnifiable Tax" means any Tax other than a Tax that would not be imposed in
respect of a payment under this Agreement but for a present or former connection
between the jurisdiction of the government or taxation authority imposing such
Tax and the recipient of such payment or a person related to such recipient
(including, without limitation, a connection arising from such recipient or
related person being or having been a citizen or resident of such jurisdiction,
or being or having been organised, present or engaged in a trade or business in
such jurisdiction, or having or having had a permanent establishment or fixed
place of business in such jurisdiction, but excluding a connection arising
solely from such recipient or related person having executed, delivered,
performed its obligations or received a payment under, or enforced, this
Agreement or a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the case of
tax matters, by the practice of any relevant governmental revenue authority) and
"lawful" and "unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and foreign
currency deposits) (a) in relation to any obligation under Section 2(a)(i), in
the place(s) specified in the relevant Confirmation or, if not so specified, as
otherwise agreed by the parties in writing or determined pursuant to provisions
contained, or incorporated by reference, in this Agreement, (b) in relation to
any other payment, in the place where the relevant account is located and, if
different, in the principal financial centre, if any, of the currency of such
payment, (c) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the city specified in the address for
notice provided by the recipient and, in the case of a notice contemplated by
Section 2(b), in the place where the relevant new account is to be located and
(d) in relation to Section 5(a)(v)(2), in the relevant locations for performance
with respect to such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be its
total losses and costs (or gain, in which case expressed as a negative number)
in connection with this Agreement or that Terminated Transaction or group of
Terminated Transactions, as the case may be, including any loss of bargain, cost
of funding or, at the election of such party but without duplication, loss or
cost incurred as a result of its terminating, liquidating, obtaining or re-
establishing any hedge or related trading position (or any gain resulting from
any of them). Loss includes losses and costs (or gains) in respect of any
payment or delivery required to have been made (assuming satisfaction of each
applicable condition precedent) on or before the relevant Early Termination Date
and not made, except, so as to avoid duplication, if Section 6(e)(i)(1) or (3)
or 6(e)(ii)(2)(A) applies. Loss does not include a party's legal fees and out-
of-pocket expenses referred to under Section 11. A party will determine its Loss
as of the relevant Early Termination Date, or, if that is not reasonably
practicable, as of the earliest date thereafter as is reasonably practicable. A
party may (but need not) determine its Loss by reference to quotations of
relevant rates or prices from one or more leading dealers in the relevant
markets.
"Market Quotation" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or by
such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document
with respect to the obligations of such party) and the quoting Reference Market-
maker to enter into a transaction (the "Replacement Transaction") that would
have the effect of preserving for such party the economic equivalent of any
payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i)
16
in respect of such Terminated Transaction or group of Terminated Transactions
that would, but for the occurrence of the relevant Early Termination Date, have
been required after that date. For this purpose, Unpaid Amounts in respect of
the Terminated Transaction or group of Terminated Transactions are to be
excluded but, without limitation, any payment or delivery that would, but for
the relevant Early Termination Date, have been required (assuming satisfaction
of each applicable condition precedent) after that Early Termination Date is to
be included. The Replacement Transaction would be subject to such documentation
as such party and the Reference Market-maker may, in good faith, agree. The
party making the determination (or its agent) will request each Reference
Market-maker to provide its quotation to the extent reasonably practicable as of
the same day and time (without regard to different time zones) on or as soon as
reasonably practicable after the relevant Early Termination Date. The day and
time as of which those quotations are to be obtained will be selected in good
faith by the party obliged to make a determination under Section 6(e), and, if
each party is so obliged, after consultation with the other. If more than three
quotations are provided, the Market Quotation will be the arithmetic mean of the
quotations, without regard to the quotations having the highest and lowest
values. If exactly three such quotations are provided, the Market Quotation will
be the quotation remaining after disregarding the highest and lowest quotations.
For this purpose, if more than one quotation has the same highest value or
lowest value, then one of such quotations shall be disregarded. If fewer than
three quotations are provided, it will be deemed that the Market Quotation in
respect of such Terminated Transaction or group of Terminated Transactions
cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it) if
it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's head or
home office.
"Potential Event of Default" means any event which, with the giving of notice or
the lapse of time or both, would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria that
such party applies generally at the time in deciding whether to offer or to make
an extension of credit and (b) to the extent practicable, from among such
dealers having an office in the same city.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions (a) in
which the party is incorporated, organised, managed and controlled or considered
to have its seat, (b) where an Office through which the party is acting for
purposes of this Agreement is located, (c) in which the party executes this
Agreement and (d) in relation to any payment, from or through which such payment
is made.
"Scheduled Payment Date" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"Set-off" means set-off, offset, combination of accounts, right of retention or
withholding or similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising under this Agreement,
another contract, applicable law or otherwise) that is exercised by, or imposed
on, such payer.
"Settlement Amount" means, with respect to a party and any Early Termination
Date, the sum of: --
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference to
any Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not (in
the reasonable belief of the party making the determination) produce a
commercially reasonable result.
17
"Specified Entity" has the meanings specified in the Schedule.
"Specified Indebtedness" means, subject to the Schedule, any obligation (whether
present or future, contingent or otherwise, as principal or surety or otherwise)
in respect of borrowed money.
"Specified Transaction" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between one party to this Agreement (or any Credit Support Provider of such
party or any applicable Specified Entity of such party) and the other party to
this Agreement (or any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions), (b) any combination of
these transactions and (c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant confirmation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost, duty, charge, assessment or
fee of any nature (including interest, penalties and additions thereto) that is
imposed by any government or other taxing authority in respect of any payment
under this Agreement other than a stamp, registration, documentation or similar
tax.
"Tax Event" has the meaning specified in Section 5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"Terminated Transactions" means with respect to any Early Termination Date (a)
if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either case) in effect
immediately before the effectiveness of the notice designating that Early
Termination Date (or, if "Automatic Early Termination" applies, immediately
before that Early Termination Date).
"Termination Currency" has the meaning specified in the Schedule.
"Termination Currency Equivalent" means, in respect of any amount denominated in
the Termination Currency, such Termination Currency amount and, in respect of
any amount denominated in a currency other than the Termination Currency (the
"Other Currency"), the amount in the Termination Currency determined by the
party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or, if
the relevant Market Quotation or Loss (as the case may be), is determined as of
a later date, that later date, with the Termination Currency at the rate equal
to the spot exchange rate of the foreign exchange agent (selected as provided
below) for the purchase of such Other Currency with the Termination Currency at
or about 11:00 a.m. (in the city in which such foreign exchange agent is
located) on such date as would be customary for the determination of such a rate
for the purchase of such Other Currency for value on the relevant Early
Termination Date or that later date. The foreign exchange agent will, if only
one party is obliged to make a determination under Section 6(e), be selected in
good faith by that party and otherwise will be agreed by the parties.
"Termination Event" means an Illegality, a Tax Event or a Tax Event Upon Merger
or, if specified to be applicable, a Credit Event Upon Merger or an Additional
Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as certified
by such party) if it were to fund or of funding such amounts.
18
"Unpaid Amounts" owing to any party means, with respect to an Early Termination
Date, the aggregate of (a) in respect of all Terminated Transactions, the
amounts that became payable (or that would have become payable but for Section
2(a)(iii)) to such party under Section 2(a)(i) on or prior to such Early
Termination Date and which remain unpaid as at such Early Termination Date and
(b) in respect of each Terminated Transaction, for each obligation under Section
2(a)(i) which was (or would have been but for Section 2(a)(iii)) required to be
settled by delivery to such party on or prior to such Early Termination Date and
which has not been so settled as at such Early Termination Date, an amount equal
to the fair market value of that which was (or would have been) required to be
delivered as of the originally scheduled date for delivery, in each case
together with (to the extent permitted under applicable law) interest, in the
currency of such amounts, from (and including) the date such amounts or
obligations were or would have been required to have been paid or performed to
(but excluding) such Early Termination Date, at the Applicable Rate. Such
amounts of interest will be calculated on the basis of daily compounding and the
actual number of days elapsed. The fair market value of any obligation referred
to in clause (b) above shall be reasonably determined by the party obliged to
make the determination under Section 6(e) or, if each party is so obliged, it
shall be the average of the Termination Currency Equivalents of the fair market
values reasonably determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
Associated Spring-Asia Pte Ltd The Development Bank of Singapore Limited
------------------------------ -----------------------------------------
(Name of Party) (Name of Party)
By: /s/ .Sd. ▇▇▇ ▇▇ ▇▇▇▇▇ By /s/ Sd. ▇▇▇▇▇ ▇▇▇ Mew Cheng
--------------------- ---------------------------
Name: ▇▇▇ ▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇ MEW CHENG (MRS)
Title: Managing Director Title: Managing Director
Date: 19 June 2001 Date: 20 June 2001
19
SCHEDULE to the Master Agreement
dated as of 19 June 2001
------------
between
ASSOCIATED SPRING ASIA PTE LTD
("Party A")
and
THE DEVELOPMENT BANK OF SINGAPORE LTD
("Party B")
Part 1
------
Termination Provisions
(1) "Specified Entity" means in relation to Party A for the purpose of:-
Section 5(a)(v) All Affiliates.
Section 5(a)(vi) All Affiliates.
Section 5(a)(vii) All Affiliates.
Section 5(b)(iv) All Affiliates.
and in relation to Party B for the purpose of:-
Section 5(a)(v) Not Applicable.
Section 5(a)(vi) Not Applicable.
Section 5(a)(vii) Not Applicable.
Section 5(b)(iv) Not Applicable.
(2) "Specified Transaction" will have the meaning given to it in Section 14.
(3) The "Cross Default" provisions will apply to both parties Provided That
where there is non-payment by reason of mistake, oversight or transfer
difficulty and it does not continue beyond three (3) Local Business Days
after receipt of written notice from the relevant holder(s) of Specified
Indebtedness, such events or conditions shall not constitute a Cross
Default hereunder.
"Threshold Amount" means 3% of the shareholders' funds of Party A or Party
B as the case may be (as specified from time to time in its most recently
published audited annual accounts).
"Specified Indebtedness" will have the meaning given to it in Section 14,
and shall include any amount payable under any Derivative Transaction. In
this context, "Derivative Transaction" means any rate swap, rate cap, rate
floor, rate collar, currency exchange transaction, equity swap, commodity
swap, forward rate agreement or other exchange or rate protection
transaction, or any option or future in relation to any security, basket of
securities or index, or any combination of such transactions or agreements
or any option or future with respect to any such transaction. For the
purpose of Section 5(a)(vi)(1):-
(a) any reference to Specified Indebtedness becoming, or becoming capable
of being declared, due and payable, shall in the case of Specified
Indebtedness which is a Derivative Transaction, be deemed to be a
reference to such Specified Indebtedness being, or becoming capable,
of being terminated by the other party to such Derivative Transaction
by virtue of an event of default affecting the first party;
(b) in determining amount to be included in "Threshold Amount" with
respect to Specified Indebtedness which is a Derivative Transaction,
the ▇▇▇▇-to-market value of such Derivative Transaction shall be used
or, if it is not available, the Non-Defaulting Party shall determine
the ▇▇▇▇-to-market value of such Derivative Transaction in good faith
on the basis of the information available to it.
PROVIDED, however, that obligations in respect of interbank deposits
received shall not constitute Specified Indebtedness for the purposes of
clause (2) of Section 5(a)(vi).
(4) "Termination Currency" means United States Dollars unless all Transactions
hereunder are denominated in a single currency in which case such currency
shall be the Termination Currency.
(5) The "Credit Event upon Merger" provisions of Section 5(b)(iv) will apply to
both Party A and Party B.
(6) The Automatic Early Termination provisions of Section 6(a) shall not apply
to Party A and Party B provided, however, where the Event of Default
specified in Section 5(a)(vii)(1), (3), (4), (5), (6) or to the extent
analogous thereto, (8) of the Agreement, is governed by a system of law
which does not permit termination to take place after the occurrence of the
relevant Event of Default, then the Automatic Early Termination provision
of Section 6(a) of the Agreement will apply to Party A and Party B*.
* to be inserted whenever AET is not to apply to a counterparty.
Section 6(e)(iii) of this Agreement shall be amended to include the
following sentences after the existing sentence:-
"In addition to, and notwithstanding anything to the contrary in the
preceding sentence of this Section 6(e)(iii), if an Early Termination Date
is deemed to have occurred under Section 6(a) as a result of Automatic
Early Termination, the Defaulting Party hereby agrees to indemnify the Non-
Defaulting Party on demand against all loss or damage that the Non-
Defaulting Party may sustain or incur in respect of each Transaction as a
result of movement in interest rates, currency exchange rates or market
quotations between the Early Termination Date and the date (the
"Determination Date") upon which the Non-Defaulting Party first becomes
aware that the Early Termination Date has been deemed to have occurred
under Section 6(a).
2
If the Non-Defaulting Party shall determine that it would gain or benefit
from the movement in interest rates, currency exchange rates or market
quotations between the Early Termination Date and the Determination Date,
the amount of such gain or benefit shall be deducted from the amount
payable by the Defaulting Party pursuant to Section 6(e)(i)(4).
The Determination Date shall be a date not later than the date upon which
creditors generally of the Defaulting Party are notified of the occurrence
of the Event of Default leading to the deemed Early Termination Date."*
* to be used in cases where AET is to apply to counterparties
(7) Payments on Early Termination: For the purpose of Section 6(e) of the
Agreement, "Second Method" and "Loss" will apply.
(8) The following Additional Termination Events shall be inserted after Section
5(b)(v):
"(vi) Singapore Dollar Transactions. With respect only to any Singapore
Dollar Transaction, the occurrence of any event in relation to a
party (which shall be the Affected Party) which, in the
reasonable determination of the other party, would make such
Transaction subject to consultation with, and approval of, the
Monetary Authority of Singapore ("MAS") pursuant to any MAS
Notice (including without limitation MAS Notice 757, as it may be
amended, supplemented or otherwise modified from time to time and
at any time) and MAS approval for such Transaction, or the
transfer of such Transaction by the Affected Party to another
office or entity acceptable to the other party, is not given
within 14 Local Business Days of such occurrence. "Singapore
Dollar Transaction" will mean (i) any Transaction identified as
such in the relevant Confirmation and (ii) any Transaction in
which payments are calculated with reference to the "S$ Swap
Offer Rate", as defined in the relevant Confirmation. For
purposes of Section 14, all Singapore Dollar Transactions shall
be treated as a separate group of Terminated Transactions for
which a separate Settlement Amount shall be calculated.
(vii) Impossibility. Due to the occurrence of a natural or man-made
disaster, armed conflict, act of terrorism, riot, labour
disruption or any other circumstance beyond its control after the
date on which a Transaction is entered into, it becomes
impossible (other than as a result of its own misconduct) for
such a party (which will be the Affected Party):-
(i) to perform any absolute or contingent obligation, to make a
payment or delivery or to receive a payment or delivery in
respect of such Transaction or to comply with any other
material provision of this Agreement relating to such
Transaction; or
(ii) to perform, or any Credit Support Provider of such party to
perform, any contingent or other obligations which the party
(or such Credit Support Provider) has under any Credit
Support Document relating to such Transaction.
An Impossibility shall be treated as an Illegality for all
purposes of this Agreement, provided that, in the event of an
Impossibility, both parties will be treated as Affected Parties."
3
Part 2
------
Tax Representations
(1) Payer Tax Representations
For the purpose of Section 3(e), Party A and Party B each make the
following representation:-
It is not required by any applicable law, as modified by the practice of
any relevant governmental authority, of any Relevant Jurisdiction to make
any deduction or withholding for or on account of any Tax from any payment
(other than interest under Section 2(e), 6(d)(ii) or 6(e) of this
Agreement) to be made by it to the other Party under this Agreement. In
making this representation, it may rely on:-
(i) the accuracy of any representation made by the other Party pursuant
to Section 3(f);
(ii) the satisfaction of the agreement of the other Party contained in
Section 4(a)(i) or 4(a)(iii) of this Agreement and the accuracy and
effectiveness of any document provided by the other Party pursuant
to Section 4(a)(i) or 4(a)(iii); and
(iii) the satisfaction of the agreement of the other Party contained in
Section 4(d) of this Agreement,
PROVIDED that it shall not be a breach of this representation where
reliance is placed on Clause (ii) and the other Party does not deliver a
form or document under Section 4(a)(iii) by reason of material prejudice to
its legal or commercial position.
(2) Payee Tax Representations
Representations of Party A
--------------------------
(Please advise)
Representations of Party B
--------------------------
For the purpose of Section 3(f), Party B makes no Payee Tax
Representations.
Part 3
------
Agreement to deliver documents
For the purpose of Sections 4(a), each party agrees to deliver the following
documents, as applicable:-
(1) Tax forms, documents or certificates to be delivered are:-
Party required to Form/Document/Certificate Date by which to be
deliver document delivered
Party A and Party B Any form or document required or Upon the earlier of (i)
reasonably requested in order to reasonable demand by
allow the other party to make the other party and (ii)
4
payments under this Agreement learning that the form
without any deduction or or document is
withholding for or on account of any required.
Tax or with such deduction or
withholding at a reduced rate.
(2) Other documents to be delivered are:-
Party Form/Document/Certificate Date by which Covered by
required to to be delivered Section 3(d)
deliver Representation
document
Party A and Evidence of the authority, On execution of Yes
Party B incumbency and specimen this Agreement
signatures of each person executing and thereafter on
this Agreement or any Confirmation the request of the
or any other document on its behalf other party.
in connection with this Agreement.
Party A All information (except that of a On request Yes
proprietary nature) regarding its
operations & finances as Party B
may reasonably request
Party A A certified true copy each of the On execution of this Yes
Memorandum & Articles of Agreement and
Association and Resolution of the thereafter on the request
Board of Directors of Party A of the other party.
authorising the execution of this
Agreement and any Confirmation
hereunder.
Party A A legal opinion in a form satisfactory On execution of this No
to Party B. Agreement.
Party A Annual Audited Financial Statements As soon as No
prepared in accordance practicable after
with accounting principles that are execution of this
generally accepted in the country in Agreement and
which the entity to which they relate also within 180
is organised. days of the financial
year end of Party A
while there are any
obligations outstanding
under this Agreement.
Party A A Corporate Guarantee document to be On execution of this Yes
signed by ▇▇▇▇▇▇ Group Inc. Agreement.
5
Part 4
------
Miscellaneous
(1) Governing Law. This Agreement will be governed by and construed in
accordance with the laws of Singapore. In this connection, Section
13(b)(i) of this Agreement is hereby deleted and substituted by the
following:-
"(i) submits to the non-exclusive jurisdiction of the Singapore courts to
determine any proceedings; and"
(2) Process Agent. For the purpose of Section 13(c):-
Party A appoints as its Process Agent: (Please advise)
Party B appoints as its Process Agent: Not Applicable.
(3) "Affiliate" will have the meaning specified in Section 14.
(4) Offices, Multibranch Party. For the purpose of Section 10:-
The provisions of Section 10(a) will apply to this Agreement.
Party A is not a Multibranch Party.
Party B is a Multibranch Party and may act through any of the following
offices:-
Singapore Head Office, Tokyo Branch, London Branch, Los Angeles Agency and
Hong Kong Branch.
(5) Address for Notices. For the purpose of Section 12(a):-
Addresses for notices to Party A:
Associated Spring Asia Pte Ltd
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Attn : Mr Ngiang ▇▇▇▇▇ ▇▇▇▇▇ (Tel : ▇▇▇ ▇▇▇▇, Fax : ▇▇▇ ▇▇▇▇)
Or Mrs ▇▇▇▇▇ Hsien (Tel : ▇▇▇ ▇▇▇▇, Fax : ▇▇▇ ▇▇▇▇)
Address for notices to Party B:
DBS Bank, DBS Building, Tower Two
▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Attn: Manager, Settlements - Derivatives Section,
Telex No: RS 24455 Answerback: DBSBNK
Fax No: [+65] ▇▇▇▇▇▇▇, Telephone No: [+65] ▇▇▇▇▇▇▇
with a copy to:-
6
(Address same as above)
Attn: Manager, Treasury - Derivatives Section
Telex No: RS 24850 Answerback: DBSDEAL
Fax No: [+65]▇▇▇▇▇▇▇, Telephone No: [+65]▇▇▇▇▇▇▇
(6) Credit Support Document: A Corporate Guarantee to be duly executed.
Credit Support Provider:-
Credit Support Provider means in relation to Party A: ▇▇▇▇▇▇ Group Inc.
Credit Support Provider means in relation to Party B: Not Applicable.
(7) Netting of Payments: Subparagraph (ii) of Section 2(c) of this Agreement
shall apply.
(8) Calculation Agent: The Calculation Agent is Party B.
7
Part 5
------
Other provisions
(1) 1991 ISDA Definitions. The definitions and provisions contained in the 1991
ISDA Definitions (as published by the International Swaps and Derivatives
Association, Inc) (the "1991 ISDA Definitions") are incorporated in this
Agreement. For these purposes, all references in the 1991 ISDA Definitions
to a "Swap Transaction" shall be deemed to apply to each Transaction under
this Agreement. In the event of any inconsistency between the 1991 ISDA
Definitions and any other definitions incorporated in a Confirmation, the
definitions incorporated into such Confirmation will govern. In the event
of any inconsistency between the provisions of this Agreement and the 1991
ISDA Definitions, this Agreement will prevail.
(2) 1998 ISDA FX and Currency Option Definitions.
(a) The definitions and provisions contained in the 1998 FX and Currency Option
Definitions published by the International Swaps and Derivatives
Association, Inc., the Emerging Markets Traders Association and The Foreign
Exchange Committee (the "1998 FX Definitions") are incorporated in this
Agreement and shall apply to any FX Transaction or Currency Option
Transaction, whether now existing or hereafter entered into by the parties
hereto. In the event of any inconsistency between the 1991 ISDA Definitions
and the 1998 FX Definitions, the 1998 FX Definitions shall prevail.
(b) Any transaction:-
(i) outstanding between the parties at the date this Agreement comes
into force; or
(ii) entered into by the parties at or after the date this Agreement
comes into force
which is an FX Transaction or a Currency Option Transaction as defined in
the 1998 FX Definitions will be a Transaction for the purposes of this
Agreement.
(c) The following shall be inserted after Section 9(e)(ii):-
"(iii) Electronic Foreign Exchange and Currency Option Confirmations
Where an FX or Currency Option Transaction is confirmed by means
of an electronic messaging system or other document or other
confirming evidence exchanged between the parties confirming such
Transaction,
(i) such electronic messages, document or evidence will
constitute a Confirmation for the purposes of this Agreement
even where not so specified therein and
(ii) the definitions and provisions contained in the 1998 FX
Definitions will be incorporated into the Confirmation.
In the event of any inconsistency between the 1998 FX Definitions
applicable pursuant to clause (ii) of this subsection and any
Confirmation, the Confirmation will prevail for the purpose of the
relevant Transaction."
(3) Currency Payments in Trust. If the parties are each required to make
payments pursuant to Section 2(a) on the same day in respect of a
Transaction but the payments due to be made are in different currencies,
the party that receives the payment due to it first shall hold an amount
equal
8
to the payment it received in trust for the benefit of the other party
until that other party receives the corresponding payment due to it. Party
B has the right to commingle any payments received with its general funds.
(4) Set-off. Any amount (the "Early Termination Amount") payable to one party
(the Payee) by the other party (the Payer) under Section 6(e), in
circumstances where there is a Defaulting Party or one Affected Party in
the case where a Termination Event under Section 5(b)(iv) has occurred,
will, at the option of the party ("X") other than the Defaulting Party or
the Affected Party (and without prior notice to the Defaulting Party or the
Affected Party) be reduced by its set-off against any amount(s) (the "Other
Agreement Amount") payable (whether at such time or in the future or upon
the occurrence of a contingency) by the Payee to the Payer (irrespective of
the currency, place of payment or booking office of the obligation) under
any other agreement(s) between the Payee and the Payer or instrument(s) or
undertaking(s) issued or executed by one party to, or in favour of, the
other party (and the Other Agreement Amount will be discharged promptly and
in all respects to the extent it is so set-off). X will give notice to the
other party of any set-off effected under this Section 6(f).
For this purpose, either the Early Termination Amount or the Other
Agreement Amount (or the relevant portion of such amounts) may be converted
by X into the currency in which the other is denominated at the rate of
exchange at which such party would be able, acting in a reasonable manner
and in good faith, to purchase the relevant amount of such currency.
If an obligation is unascertained, X may in good faith estimate that
obligation and set-off in respect of the estimate, subject to the relevant
party accounting to the other when the obligation is ascertained.
Nothing in this Section 6(f) shall be effective to create a charge or other
security interest. This Section 6(f) shall be without prejudice and in
addition to any right of set-off, combination of accounts, lien or other
right to which any party is at any time otherwise entitled (whether by
operation of law, contract or otherwise).
(5) No Agency. Each Party has entered into this Agreement and each Transaction
as principal and not as agent or in any other capacity, fiduciary or
otherwise.
(6) Further Representation. Party A represents it has the capacity to enter
into this Agreement and each Transaction and that it has entered into this
Agreement and each Transaction for the purpose of managing its borrowings
or investments, hedging its underlying assets or liabilities or in
connection with its line of business and not for purposes of speculation.
(7) Relationship Between Parties. Each party will be deemed to represent to
the other party on the date on which it enters into a Transaction that
(absent a written agreement between the parties that expressly imposes
affirmative obligations to the contrary for that Transaction):
(a) Non-Reliance. It is acting for its own account, and has made its own
independent decisions to enter into that Transaction and as to whether
that Transaction is appropriate or proper for it based upon its own
judgement and upon advice from such advisors as it has deemed
necessary. It is not relying on any communication (written or oral) of
the other party as investment advice or as a recommendation to enter
into that Transaction; it being understood that information and
explanations related to the terms and conditions of a Transaction
shall not be considered investment advice or a recommendation to enter
into that Transaction. No communication (written or oral) received
from the other party shall be deemed to be an assurance or guarantee
as to the expected results of that Transaction.
9
(b) Assessment and Understanding. It is capable of assessing the merits of
and understanding (on its own behalf of through independent
professional advice), and understands and accepts, the terms,
conditions and risks of that Transaction. It is also capable of
assuming, and assumes, the risks of that Transaction.
(c) Status of Parties. The other party is not acting as a fiduciary for an
advisor to it in respect of that Transaction.
(8) Risk Disclosure Statement. Party A acknowledges that it has received, read
and understood the contents of the Generic Risk Disclosure Statement at
Annex A.
(9) ISDA/FRABBA Bridge. Any forward rate agreement into which the parties have
entered and in respect of which the confirmation or other confirming
evidence refers to or incorporates the British Bankers' Association London
Interbank Forward Rate Agreements Recommended Terms and Conditions (1985
edition) ("FRABBA Terms") will be governed by this Agreement. Any forward
rate agreement into which the parties may enter and in respect of which the
confirmation or other confirming evidence refers to or incorporates the
FRABBA Terms will be governed by this Agreement in all circumstances except
when the parties expressly agree that this provision will not apply. Each
such transaction will be deemed to be a Transaction and each such
confirmation or other confirming evidence will be deemed to constitute a
Confirmation for purposes of this Agreement. Sections B, C and E and
clauses 1, 4, 5 and 6 of Section D of the Sections of the FRABBA Terms are
hereby incorporated by reference in this Agreement. Those Sections are
applicable only to transactions to which this provision relates and will
prevail in the event of any inconsistency with any other provision of this
Agreement. In the event of any other inconsistency between the FRABBA Terms
and this Agreement, this Agreement will govern. Clauses 2, 3, 7, 8, 9 and
10 of Section D of the FRABBA Terms are not applicable to any transaction
to which this provision relates.
(10) Consent to Recording. Each Party hereto (i) consents to the electronic
recording of its telephone conversation involving trading or marketing
personnel of such party in connection with this Agreement or any actual or
potential Transaction, and (ii) agrees to obtain the consent of, and give
notice of such recording to, such personnel.
(11) Disclosure. Party A authorises Party B, and each of Party B's officers,
agents and/or employees, to disclose any information relating to this
Agreement and any Transaction of this Agreement (i) to any branch of Party
B, (ii) to the extent required by law, any regulatory, statutory and
governmental authority provided that where such information is provided to
any regulatory, statutory or governmental authority and (iii) to any
Affiliate of Party B in connection with data processing or the outsourcing
of any of Party B's operational functions and cross-selling of products.
Part 6
------
Currency Option Transactions
(1) Amendment to the 1998 FX Definitions. The following amendments are made to
the 1998 FX Definitions:-
(a) Section 3.5(g) is amended by deleting the word "facsimile" in the
4/th/ line thereof.
(b) Section 3.4 is amended by the addition of the following as a new
section 3.4(c):-
10
"(c) Terms Relating to Payment of Premium. If any Premium is not
received on the Premium Payment Date, the Seller may elect: (i)
to accept a late payment of such Premium; (ii) to give written
notice of such non-payment and, if such payment shall not be
received within two(2) Local Business Days of such notice,
treat the related Currency Option as void; or (ii) to give
written notice of such non-payment and, if such payment shall
not be received within two(2) Local Business Days of such
notice, treat such non-payment as an Event of Default under
Section 5(a)(i). If the Seller elects to act under either
clause (i) or (ii) of the preceding sentence, the Buyer shall
pay all out-of-pocket costs and actual damages incurred in
connection with such unpaid or late Premium or void Currency
Option, including, without limitation, interest on such Premium
in the same currency as such Premium at the prevailing market
rate and any other costs or expenses incurred by the Seller in
covering its obligation (including, without limitation, a delta
hedge) with respect to such Currency Option."
(2) Other Provisions.
(a) Any Confirmation with respect to a Currency Option Transaction shall
be substantially in the form of one of the Exhibits to the 1998 FX
Definitions, or in such other form as the parties may agree.
(b) Any documents or other evidence exchanged (or to be exchanged) between
the parties confirming any such Currency Option Transaction shall be
deemed to be a "Confirmation" and any such Currency Option Transaction
shall constitute a Transaction for all purposes of this Agreement.
ASSOCIATED SPRING ASIA PTE LTD THE DEVELOPMENT BANK
OF SINGAPORE LTD
By: /s/ Sd. ▇▇▇ ▇▇ ▇▇▇▇▇ By: /s/ Sd. ▇▇▇▇▇ ▇▇▇ Mew Cheng
-------------------- ---------------------------
Name: ▇▇▇ ▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇ MEW CHENG (MRS)
Title: Managing Director Title: Managing Director
11
EXHIBIT 10.4
------------
DATED THIS 19TH DAY OF JUNE 2001
--------------------------------
(1) ▇▇▇▇▇▇ GROUP INC.
as the Guarantor
And
(2) THE DEVELOPMENT BANK
OF SINGAPORE LIMITED
as the Hedging Counterparty
GUARANTEE
TAN JINHWEE, ▇▇▇▇▇▇ & LIM CHOOENG
ADVOCATES & SOLICITORS
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ #▇▇-▇▇
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
TJH/NSR/200113-4806
18.6.2001
nsr 51-g
TABLE OF CONTENTS
-----------------
1. DEFINITIONS AND INTERPRETATION....................... 2
2. GUARANTEE AND INDEMNITY.............................. 2
3. SECURITY UNAFFECTED.................................. 3
4. REPRESENTATIONS AND WARRANTIES....................... 6
5. UNDERTAKINGS......................................... 7
6. PAYMENT PROVISIONS................................... 9
7. SET-OFF AND WITHHOLDINGS............................. 10
8. INDEMNITIES.......................................... 11
9. SET-OFF.............................................. 12
10. NOTICES.............................................. 12
11. SUCCESSORS BOUND..................................... 13
12. MISCELLANEOUS........................................ 13
THIS GUARANTEE is made the 19th day of June Two thousand and one
(2001) Between:-
(1) ▇▇▇▇▇▇ GROUP INC., a company incorporated in the State of Delaware, United
States of America and having its executive office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America (the "Guarantor"); and
---------
(2) THE DEVELOPMENT BANK OF SINGAPORE LIMITED (Company Registration No.
196800306E), a company incorporated in Singapore and having its registered
office at ▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Hedging
-------
Counterparty" which expression shall include its successors in title,
------------
assigns and transferees).
WHEREAS:-
(A) By a facility agreement dated 19 June 2001 ("Facility Agreement") made
------------------
between (1) the Borrower (as hereinafter defined), (2) The Development Bank of
Singapore Limited as the Agent, and (3) The Development Bank of Singapore
Limited as the Original Term Loan Bank, the Term Loan Banks (as therein defined)
agreed to make available to the Borrower a transferable term loan facility of up
to the principal amount of Yen three billion and three hundred million
((Yen)3,300,000,000), on and subject to the terms and conditions therein
contained.
(B) In connection with the Facility Agreement, the Borrower entered into a
currency swap and interest rate hedging agreement with the Hedging Counterparty
dated June 2001 ("Hedge Agreement"), on and subject to the terms and conditions
---------------
therein contained.
(C) The execution and delivery of this Guarantee by the Guarantor is one
of the conditions precedent to the obligations of the Hedging Counterparty under
the Hedge Agreement.
(D) The Guarantor (after giving due consideration to the terms and
conditions of the Hedge Agreement and satisfying itself that the execution and
delivery of this Guarantee will benefit it and is in its best interests) has
agreed to enter into this Guarantee.
NOW THIS GUARANTEE WITNESSETH as follows:-
2
1. DEFINITIONS AND INTERPRETATION
------------------------------
1.1 Terms defined: In this Guarantee, unless where otherwise defined
-------------
herein or the context otherwise requires, all words and expressions as defined
in the Facility Agreement shall have the same meanings when used or referred to
herein and the following words or expressions shall have the following meanings
respectively:-
"Borrower" means Associated Spring-Asia Pte Ltd (Company Registration
--------
No. 198100597E), a company incorporated in Singapore and having its
registered office at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇;
"Discharge Date" means the date the Guaranteed Indebtedness is fully
--------------
discharged and the facilities under the Hedge Agreement cease to be
available for a and each of the Borrower and the Guarantor ceases to
be under any liability to the Hedging Counterparty under or in
connection with the Hedge Agreement and this Guarantee and an absolute
discharge of the Borrower and the Guarantor is signed by the Hedging
Counterparty; and
"Guaranteed Indebtedness" means all and any amounts whatsoever
-----------------------
(whether principal, interest, fees or otherwise) which may now or at
any time hereafter be payable (actually or contingently) by the
Borrower to the Hedging Counterparty under or pursuant to the Hedge
Agreement, and references to the Guaranteed Indebtedness include any
part thereof.
1.2 Construction: Clauses 1.2 and 1.3 of the Facility Agreement shall
------------
apply to this Guarantee as if set out in full except that references in the said
Clauses to "this Agreement" shall be deemed to be references to this Guarantee.
--------------
2. GUARANTEE AND INDEMNITY
-----------------------
2.1 In consideration of the premises and the Hedging Counterparty agreeing
to make the currency swap and interest rate hedging facilities available to the
Borrower and the Hedging Counterparty acting under or in connection with the
Hedge Agreement (a copy of which the Guarantor acknowledges having received),
the Guarantor hereby unconditionally and irrevocably guarantees to the Hedging
Counterparty, as a continuing guarantee, the due and punctual payment by the
Borrower of the Guaranteed Indebtedness and unconditionally and irrevocably
undertakes that, if at any time and for any reason the Borrower does not make
payment of any amount of the Guaranteed Indebtedness, by the time, on the date
and in the currency and otherwise in the manner specified in the Hedge Agreement
(whether on maturity date, on acceleration or otherwise), the Guarantor shall
pay the amounts not so paid within five (5) Business Days of first written
demand by the Hedging Counterparty in the currency provided in the Hedge
Agreement as if the Guarantor was expressed to be the primary obligor.
2.2 As a separate, additional and continuing obligation the Guarantor
unconditionally and irrevocably undertakes with the Hedging Counterparty that,
should the Guaranteed Indebtedness not be recoverable from the Guarantor for any
reason whatsoever (including, but without prejudice to the generality of the
foregoing, by reason of any provision of this Guarantee or the Hedge Agreement
being or becoming void,
3
unenforceable or otherwise invalid under any applicable law) then
notwithstanding that it may have been known to the Hedging Counterparty, the
Guarantor will, as sole, original and independent obligor, make payment of the
Guaranteed Indebtedness by way of full indemnity in such currency and otherwise
in such manner as is provided for in this Guarantee.
3. SECURITY UNAFFECTED
-------------------
3.1 The liabilities and obligations of the Guarantor under this Guarantee
remain in full force and effect, subject to Clause 3.2, until the Discharge
Date, notwithstanding any act, omission, neglect, event or matter whatsoever,
and without prejudice to its generality, the foregoing shall apply in relation
to anything which would have discharged the Guarantor (wholly or in part) or
which would have afforded the Guarantor any legal or equitable defence, and in
relation to any winding-up or dissolution of, or any change in the constitution
or corporate identity or loss of corporate identity by, the Borrower or any
other person.
3.2 Any such discharge or release as is referred to in Clause 3.1 and any
composition or arrangement which the Guarantor may effect with the Hedging
Counterparty, shall be deemed to be made subject to the condition that it will
be void, if any payment or security which the Hedging Counterparty may
previously have received or may thereafter receive from any person in respect of
the Guaranteed Indebtedness or other payments as stipulated in this Guarantee,
is set aside under any applicable law or proves to have been for any reason
invalid and, in the event of any such payment or security being so set aside or
invalid, the Hedging Counterparty shall be entitled subsequently to enforce this
Guarantee against the Guarantor as if such discharge, release, composition or
arrangement had not occurred.
3.3 Without prejudice to the generality of Clauses 3.1 and 3.2, none of
the liabilities or obligations of the Guarantor under this Guarantee shall be
affected or impaired by:-
(a) the Hedging Counterparty agreeing with the Borrower or any other
person on any variation or departure (however substantial) of or
from the Hedge Agreement and any such variation or departure
shall, whatever its nature, be binding upon the Guarantor in all
circumstances;
(b) any provision of this Guarantee or the Hedge Agreement or any
other document or security being or becoming void, frustrated,
unenforceable or otherwise invalid under any applicable law as
regards the Borrower or any other person for any reason
whatsoever, to the intent that the Guarantor's obligations
hereunder shall remain in full force and effect and this
Guarantee be construed accordingly as if there were no such
voidness, frustration, unenforceability or invalidity;
(c) any legal limitation, disability, incapacity or other
circumstances relating to the Borrower or any other party;
4
(d) any intermediate payment or settlement of account or satisfaction
of the whole or any part of any sum or sums of money due or owing
to the Hedging Counterparty under the Hedge Agreement or this
Guarantee or otherwise and shall extend to cover all moneys which
shall from time to time be owing by the Borrower to the Hedging
Counterparty under the Hedge Agreement and by the Guarantor to
the Hedging Counterparty under this Guarantee and all moneys
outstanding and not immediately payable for which the Borrower is
absolutely or contingently liable to the Hedging Counterparty
thereunder and Guarantor is absolutely or contingently liable to
the Hedging Counterparty hereunder;
(e) any change by amalgamation, reconstruction or otherwise which may
be made in the constitution of the company by which the business
of the Hedging Counterparty may for the time being be carried on
and shall be available to the company carrying on the business of
the Hedging Counterparty for the time being;
(f) (i) any time, covenant not to ▇▇▇, indulgence, concession, waiver
or consent at any time given to the Borrower or any other person,
(ii) any alteration, amendment, variation, supplement, renewal or
replacement of any agreement, document, guarantee or Security
Interest (including, without limitation, the Hedge Agreement),
(iii) the making or absence of any demand on the Borrower or any
other person for payment, (iv) the enforcement or absence of
enforcement of any agreement, guarantee, document or Security
Interest (including, without limitation, the Hedge Agreement),
(v) the taking, existence or release of any agreement, guarantee,
document, Security Interest, right, power, authority, discretion
or remedy, (vi) the bankruptcy, insolvency, winding-up,
dissolution, amalgamation, reconstruction or reorganisation of
the Borrower or any other person (or the commencement of any of
the foregoing), (vii) any arrangement, composition or compromise
entered into by the Borrower or any other person, (viii) any
moratorium or other suspension of any agreement, guarantee,
document, Security Interest, right, power, authority, discretion
or remedy, (ix) the illegality, invalidity, unenforceability or
otherwise of limited force or effect of or any defect in any
provision of any agreement, guarantee, document or Security
Interest (including, without limitation, the Hedge Agreement) or
any of the obligations of any of the parties thereunder, (x) any
failure to take, or fully to take, any Security Interest
contemplated by the Hedge Agreement or otherwise agreed to be
taken in respect of the Guaranteed Indebtedness, or (xi) any
other act, matter or thing whatsoever which, but for this Clause
3, would or might impair or discharge the rights of the Hedging
Counterparty under this Guarantee or the Hedge Agreement.
For the avoidance of doubt and notwithstanding the provisions of Clause 3.3(f),
it is hereby agreed that the provisions of this Guarantee and the obligations
and liabilities of the Guarantor and the Hedging Counterparty hereunder may be
waived, amended, varied
5
and/or supplemented (whether wholly or in part) in writing executed by the
Guarantor and the Hedging Counterparty, and such waiver, amendment, variation
and/or supplement shall be valid and enforceable between the parties hereto.
3.4 The Guarantor agrees to be bound by this Guarantee notwithstanding
that any other person which has intended to sign or to be bound may not do so or
be effectually bound and notwithstanding that this Guarantee may be determined
or become invalid or unenforceable against any one or more of such persons
whether or not the deficiency is known to the Hedging Counterparty.
3.5 The Hedging Counterparty may place and keep any monies received by
virtue of this Guarantee (whether before or after the insolvency, bankruptcy or
winding-up of the Borrower or any other person) to the credit of a suspense
account for so long as the Hedging Counterparty may think fit in order to
preserve the rights of the Hedging Counterparty to ▇▇▇ or prove for the whole of
the Guaranteed Indebtedness against the Borrower or any other person.
3.6 The security created by this Guarantee shall constitute and be a
continuing security notwithstanding any settlement of account or reduction or
repayment of the Guaranteed Indebtedness for the time being owing or any other
matter or thing whatsoever and shall be in addition to, and shall not be merged
in, or be in any way prejudiced or affected by any collateral or other security
from time to time held or judgment or order obtained by the Hedging Counterparty
for all or any part of the Guaranteed Indebtedness nor shall any such collateral
or other security, judgment or order or any lien to which the Hedging
Counterparty may be otherwise entitled or the liability of the Borrower or any
others not parties hereto for all or any part of the Guaranteed Indebtedness be
in any way prejudiced or affected by this Guarantee.
3.7 The Guarantor shall, from time to time upon being required to do so by
the Hedging Counterparty, now or at any time in the future, do or procure the
doing of all such acts and/or execute or procure the execution of all such
documents, in form and substance satisfactory to the Hedging Counterparty, as
the Hedging Counterparty may consider necessary or desirable for giving full
effect to this Guarantee and securing to the Hedging Counterparty the full
benefit of the rights, powers and remedies conferred upon the Hedging
Counterparty in this Guarantee.
4. REPRESENTATIONS AND WARRANTIES
------------------------------
4.1 The Guarantor hereby warrants and represents to the Hedging
Counterparty as follows:-
(a) Status: it is corporation incorporated in accordance with, and
------
validly existing under, the laws of the State of Delaware, United
States of America;
(b) Assets: it has the power to own its assets and carry on its
------
business and operations as they are now being conducted and will
maintain, preserve and protect all of its assets in accordance
with good business practice;
6
(c) Validity: this Guarantee when executed and delivered will
--------
constitute its legal, valid, binding and enforceable obligations
in accordance with its terms;
(d) Authorisations and consents: all acts, conditions and things
---------------------------
required to be done, fulfilled and performed (including the
obtaining of any necessary consents) in order (aa) to enable it
lawfully to enter into, exercise its rights under and perform and
comply with the obligations expressed to be assumed by it in this
Guarantee, (bb) to ensure that the obligations expressed to be
assumed by it in this Guarantee are legal, valid, binding and
enforceable, and (cc) to make this Guarantee admissible in
evidence in the State of Delaware, United States of America and
Singapore, have been done, fulfilled and performed;
(e) Non-conflict: its entry into and performance of this Guarantee
------------
and the transactions contemplated hereby do not and will not:-
(i) conflict with (aa) its Bye-laws or other constitutional
documents, (bb) any law or any official or judicial order
applicable to it or otherwise binding on it, or (cc) any
agreement or document to which it is a party or which is
binding on it or its assets; or
(ii) result in the creation or imposition of (or enforceability
of) any Security Interest on or over all or any of its
assets pursuant to the provisions of any agreement or
document;
(f) Litigation: no litigation, arbitration or administrative
----------
proceedings or claims which might by itself or together with any
other such proceedings or claims have a material adverse effect
on it is presently in progress or pending or, to the best of its
knowledge, information and belief, threatened against it or any
of its assets;
(g) Solvency: it is solvent; no appointment of a receiver and/or
--------
manager, judicial manager, liquidator, administrator or similar
officer has been or is being made;
(h) Corporate documents: copies of its Bye-laws and other
-------------------
constitutional documents and certified extracts of its board
resolutions delivered to the Hedging Counterparty are true and
accurate copies of its corporate records;
(i) Information: all of the written information supplied to the
-----------
Hedging Counterparty are true, complete and accurate in all
material respects and it is not aware of any fact or circumstance
that has not been disclosed to the Hedging Counterparty and which
might, if disclosed, adversely affect the decision of a person
considering whether or not to provide or maintain finance to the
Borrower;
7
(j) Financial statements: its audited financial statements most
--------------------
recently delivered to the Hedging Counterparty:-
(i) have been prepared in accordance with accounting principles
and practices generally accepted in the United States of
America consistently applied; and
(ii) present a true and fair view of its financial condition as
at the date to which they were drawn up; since that date
there has been no material adverse change in its financial
condition as shown in such accounts; and
(k) Ownership: (i) the whole of the issued share capital of the
---------
Borrower is legally and beneficially owned by ▇▇▇▇▇▇ Group
(Bermuda) Limited (Company Registration UF19573Z) ("▇▇▇▇▇▇
------
Bermuda"), and (ii) the whole of the issued share capital of
-------
▇▇▇▇▇▇ Bermuda is legally and beneficially owned by the
Guarantor.
4.2 Repetition: Each of the representations and warranties contained in
----------
Clause 4.1 shall survive and continue to have full force and effect after the
execution of this Guarantee and shall be deemed to be repeated on each day so
long as the Guaranteed Indebtedness remains outstanding or the currency swap
facility or interest rate hedging facility is in effect, with reference to the
facts and circumstances then subsisting as if made at each such time.
5. UNDERTAKINGS
------------
The Guarantor undertakes with the Hedging Counterparty that so long as
the Guaranteed Indebtedness remains outstanding or the currency swap facility or
interest rate hedging facility is in effect that:-
(a) Accounts and information: it will:-
------------------------
(i) deliver to the Hedging Counterparty as soon as they become
available, but in any event within one hundred and eighty
(180) days after the end of each of its financial periods
(which shall not be longer than fifteen (15) months), copies
of its financial statements for that period, which shall
contain an income statement and a balance sheet, be prepared
on a basis consistently applied, be audited and certified by
a firm of independent accountants of recognised
international standing and if qualified, such qualification
shall not be in a manner which is, in the opinion of the
Hedging Counterparty, material in the context of this
Guarantee, together with the auditor's report;
(ii) deliver to the Hedging Counterparty as soon as they become
available, but in any event within ninety (90) days
8
after the end of its financial period to which they
relate, copies of its unaudited half-yearly financial
statements;
(iii) deliver to the Hedging Counterparty all notices or other
documents dispatched by it to its shareholders (or any
class thereof) or its creditors generally (or any class
thereof); and
(iv) promptly supply the Hedging Counterparty with such
information (except that of a proprietary nature) as the
Hedging Counterparty may from time to time reasonably
request;
(b) Claims pari passu: it will ensure that its payment obligations
-----------------
under this Guarantee rank at least pari passu with the claims of
all its other direct, unconditional, unsubordinated and general
obligations save those claims which are preferred solely by any
bankruptcy, insolvency, liquidation or other laws of general
application;
(c) Authorisations and consents: it will maintain in full force and
---------------------------
effect all such authorisations and consents as are referred to in
Clause 4.1(d), take prompt steps to obtain any other
authorisation or consent which may be necessary or advisable for
the purposes specified in Clause 4.1(d), and comply with all
terms, conditions and restrictions, if any, imposed in connection
with any of such authorisations and consents and maintain or
accomplish any filing or registration with any Government
Authority which may be or become necessary or advisable for such
purposes;
(d) Performance of this Guarantee: it will perform all covenants,
-----------------------------
provisions, undertakings, terms and conditions on its part to be
performed and observed under this Guarantee;
(e) Notification of change: it will promptly notify the Hedging
----------------------
Counterparty of any event or change in its condition (financial,
business or otherwise) and of any litigation, arbitration or
administrative proceedings being threatened or initiated against
it before any court, tribunal or administrative agency, which
might have a material adverse effect on it, all such notification
to be given to the Hedging Counterparty as soon as practicable
after it has knowledge of the said event or change or of the said
proceedings or threat thereof and the amount of contingent
liability, if such amount is ascertainable; and
(f) Notification of winding-up and judicial management, etc: it will
-------------------------------------------------------
immediately upon becoming aware thereof notify the Hedging
Counterparty of any petition filed or notice for passing of a
resolution for the winding-up or appointment of a judicial
manager, trustee, administrator or similar officer of the
Guarantor, such notification if made verbally to be followed up
in writing within twenty-four (24) hours therefor.
9
6. PAYMENT PROVISIONS
------------------
6.1 Time and place of payment: All payments to be made by the Guarantor
-------------------------
under or pursuant to this Guarantee shall be made by on the relevant due date in
the currency in which such amount is due by payment in that currency to the
Hedging Counterparty not later than 11.00 a.m. (Singapore) time on the relevant
due date in immediately available and freely transferable funds, to such account
or accounts as the Hedging Counterparty may in writing by prior notice
designate.
6.2 Payment on Business Day: If any sum becomes due for payment under or
-----------------------
pursuant this Guarantee on a day which is not a Business Day, such payment shall
be made on the next succeeding day which is a Business Day unless such next
succeeding Business Day falls in the following month in which event such sum
shall be made on the immediately preceding Business Day and all calculations of
interest shall be adjusted accordingly.
6.3 Payment by deduction: Where the Guarantor has failed to make the
--------------------
requisite payment by the relevant due date, the Hedging Counterparty shall in
addition to its other remedies be entitled to effect payment (to the extent not
already paid or discharged) of all fees, expenses and other sums due and payable
by the Guarantor under this Guarantee out of and by deduction against any
account which the Guarantor may have with the Hedging Counterparty and the
Guarantor hereby authorises Hedging Counterparty to do so.
7. SET-OFF AND WITHHOLDINGS
------------------------
7.1 No set-off or withholdings: All sums payable by the Guarantor to the
--------------------------
Hedging Counterparty under or pursuant to this Guarantee shall be paid in full,
free of any restriction or condition, without set-off or counterclaim and
without any deduction or withholding for or on account of any taxes or
otherwise, unless the deduction or withholding is required by law, in which
event the Guarantor shall:-
(a) notify the Hedging Counterparty as soon as the Guarantor becomes
aware of such a requirement;
(b) ensure that such deduction or withholding does not exceed the
minimum legal liability therefor and forthwith pay to the Hedging
Counterparty such additional amount as is necessary to ensure
that the Hedging Counterparty receives on the due date and
retains (free from any liability other than tax on the overall
net income of the Hedging Counterparty) a net sum equal to what
it would have received and so retained had no such deduction or
withholding been required or made; and
(c) forthwith pay the full amount required to be deducted or withheld
(including, but without prejudice to the generality of the
foregoing, the full amount of any deduction or withholding from
any additional amount paid pursuant to this sub-Clause) to the
relevant taxation or other authority within the time allowed for
such payment under applicable law and promptly deliver to the
10
Hedging Counterparty, after it has made such payment to the
relevant authority, an original receipt (or a certified true copy
thereof) issued by such authority evidencing the payment to such
authority of all amounts so required to be deducted or withheld
in respect of the Hedging Counterparty share of such payment.
7.2 Indemnities: Without prejudice to the provisions of Clause 7.1, if
-----------
the Hedging Counterparty is required by any applicable law to make any payment,
whether on account of tax (not being a tax imposed on the overall net income of
the Hedging Counterparty) or otherwise or on or in relation to any sum received
or receivable under this Guarantee by the Hedging Counterparty (including,
without limitation, any sum received or receivable under this Clause 7.2) or any
liability in respect of any such payment is asserted, imposed, levied or
assessed against the Hedging Counterparty, the Guarantor shall, upon demand of
the Hedging Counterparty, promptly indemnify the Hedging Counterparty against
such payment or liability, together with any interest, penalties and expenses
payable or incurred in connection therewith.
7.3 Goods and services tax: The Guarantor shall also pay on demand to the
----------------------
Hedging Counterparty on demand, in addition to any amount payable by the
Guarantor under or pursuant to this Guarantee, any goods and services, value
added or other similar tax payable in respect of that amount (and references in
this Guarantee to that amount shall be deemed to include any such taxes payable
in addition to it).
7.4 Tax credit: If the Guarantor pays any increased amount under Clause
----------
7.1 and the Hedging Counterparty effectively obtains a refund of tax or credit
against tax by reason of that payment, and if the Hedging Counterparty is able
(in its sole opinion, which shall not be capable of being challenged) to
identify that refund or credit as being attributable to that payment having
regard to its other activities, then the Hedging Counterparty shall reimburse to
the Guarantor such amount as it shall determine (any such determination being
conclusive) to be the proportion of that refund or credit as will leave the
Hedging Counterparty after that reimbursement in no better or worse position
than it would have been in if that payment had not been required. The Hedging
Counterparty shall not be obliged to arrange its tax affairs in any particular
manner or to apply for such refund or credit for itself or the Guarantor or to
disclose any information regarding its tax affairs or computations to the
Guarantor.
8. INDEMNITIES
-----------
8.1 Indemnities: The Guarantor shall fully indemnify the Hedging
-----------
Counterparty from and against any expense, loss, damage or liability (as to the
amount of which the certificate of the Hedging Counterparty shall, in the
absence of manifest error, be prima facie evidence), whether arising out of this
Guarantee or otherwise, which the Hedging Counterparty may incur as a
consequence of any default on the Guarantor's part under or in connection with
this Guarantee.
8.2 Currency indemnity:
------------------
(a) Any amount received or recovered by the Hedging Counterparty in
respect of any sum expressed to be due to it from the Guarantor
under this Guarantee in a currency (the "Payment Currency") other
----------------
11
than that agreed to be payable hereunder (the "Agreed Currency")
---------------
whether as a result of, or of the enforcement of, a judgment or
order of a court or tribunal of any jurisdiction shall only
constitute a discharge to the Guarantor to the extent of the
amount in the Agreed Currency which the Hedging Counterparty is
able, in accordance with its usual practice at the Hedging
Counterparty's prevailing exchange rate, to purchase with the
amount so received or recovered in the Payment 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).
(b) If that amount in the Payment Currency is less than the amount in
the Agreed Currency due to the Hedging Counterparty under this
Guarantee, the Guarantor shall indemnify it against any loss
sustained by it in that event. In any event, the Guarantor shall
indemnify the Hedging Counterparty against the cost of making any
such purchase.
8.3 Independent obligations: The indemnities contained in Clauses 8.1 and
-----------------------
8.2 constitute separate and independent obligations from the other obligations
in this Guarantee, shall give rise to separate and independent causes of action,
shall apply irrespective of any indulgence granted by the Hedging Counterparty
and shall continue in full force and effect whether before and after any
judgment, order, claim or proof for a liquidated amount in respect of any sum
due under this Guarantee or any judgment or order. With regard to Clause 8.2, no
proof or evidence of any actual loss may be required other than proof of the
actual amount in the Agreed Currency purchased by the recipient as mentioned in
Clause 8.2(a) and the date upon which such purchase was effected.
9. SET-OFF
-------
The Hedging Counterparty may at any time (whether before or after the
declaration of an Event of Default) without notice to the Guarantor set off or
transfer any credit balance (whether or not then due) to which the Guarantor is
at any time beneficially entitled on any account (expressed in any currency) or
debit such account at any office or branch of the Hedging Counterparty (whether
in Singapore or elsewhere) in or towards satisfaction of the Guaranteed
Indebtedness or any part thereof then due and unpaid or any money owing to the
Hedging Counterparty by the Guarantor hereunder Provided That such debiting
shall not constitute a waiver of any event of default. For that purpose, the
Hedging Counterparty is authorised to use all or any part of any such credit
balance to buy such other currencies as may be necessary to effect such
application. The Hedging Counterparty shall not be obliged to exercise any of
its rights under this Clause, which shall be without prejudice and in addition
to any right of set-off, combination of accounts, lien or other right to which
it is at any time otherwise entitled (whether by operation of law, contract or
otherwise). The Hedging Counterparty shall notify the Guarantor within three (3)
Business Days after the exercise by it of any of its rights under this Clause.
12
10. NOTICES
-------
10.1 Address: Each notice or other communication under this Guarantee
-------
shall be made by facsimile, letter or otherwise in writing. Each notice or other
communication to be delivered to any party under this Guarantee shall be sent to
that party at the facsimile number or address, and marked for the attention of
the person (if any), from time to time designated by that party to the other
party for the purpose of this Guarantee. The initial facsimile number, address
and person (if any) so designated by each party are set out under its name at
the end of this Guarantee.
10.2 Deemed delivery: Any notice or other communication from the Guarantor
---------------
shall be irrevocable and shall not be effective until received by the Hedging
Counterparty. Any notice or other communication from the Hedging Counterparty to
the Guarantor shall be deemed to be received by the Guarantor (if sent by
facsimile) 24 hours after despatch or (in any other case) when left at the
address required by Clause 10.1 and receipt thereof acknowledged by the
Guarantor or within three (3) Business Days after being sent by pre-paid
registered post addressed to it at that address.
11. SUCCESSORS BOUND
----------------
11.1 This Guarantee shall be binding upon and enure to the benefit of the
parties hereto and their respective successors and permitted assigns (as the
case may be), but the Guarantor shall not assign or transfer all or any of its
rights and obligations hereunder.
11.2 The Hedging Counterparty may assign this Guarantee or the whole or a
portion of its rights hereunder to any financial institution to which it sells
or assigns all or any part of its rights and/or obligations under the Hedge
Agreement, in which event references herein to the Hedging Counterparty shall
thenceforth be deemed to include a reference to such assignee to the extent of
its interest.
12. MISCELLANEOUS
-------------
12.1 Evidence of indebtedness: In any legal action or proceedings arising
------------------------
out of or in connection with the this Guarantee a statement as to any amount due
to the Hedging Counterparty under this Guarantee which is certified as being
correct by a duly authorised officer or officers of the Hedging Counterparty
shall (unless otherwise provided in this Guarantee), in the absence of manifest
error, be prima facie evidence of the existence and the amounts of the
obligations of the Guarantor.
12.2 Certificates and determinations: Except as otherwise provided under
-------------------------------
the provisions of this Guarantee or otherwise directed by a court of law, any
certificate, determination or notification by the Hedging Counterparty as to any
amount payable to it under this Guarantee is conclusive and binding on the
Guarantor, save for manifest error, and any other certificate, determination,
notification, opinion or the like of the Hedging Counterparty provided for in
this Guarantee is prima facie evidence of the matter to which it relates, save
for manifest error.
13
12.3 Application of moneys: If any sum paid or recovered in respect of the
---------------------
liabilities of the Guarantor under this Guarantee is less than the amount then
due, the Hedging Counterparty may apply that sum to principal, interest, fees or
any other amount due under this Guarantee in such proportions and order and
generally in such manner as the Hedging Counterparty shall determine.
12.4 Waivers and consents: No delay or omission on the part of the Hedging
--------------------
Counterparty in exercising any right or remedy under this Guarantee shall impair
that right or remedy or operate as or be taken to be a waiver of it, nor shall
any single partial or defective exercise by the Hedging Counterparty of any such
right or remedy preclude any other or further exercise under this Guarantee of
that or any other right or remedy; and no act or course of conduct or
negotiation on its part or on its behalf shall in any way preclude it from
exercising any such right or remedy or constitute a suspension or variation of
any such right or remedy. Any waiver by the Hedging Counterparty under any
provision of this Guarantee must be in writing and may be given subject to any
conditions as the Hedging Counterparty may think fit. Any waiver or consent
shall be effective only in the instance and for the purpose for which it is
given. Any waiver may be given before or after a breach occurs. The rights and
remedies provided in this Guarantee are cumulative and are not exclusive of any
rights or remedies provided by law.
12.5 Disclosure: The Hedging Counterparty and all persons to whom Section
----------
47(3) of the Banking Act (Cap. 19) applies may, for the purposes of Section
47(4)(a) of the Banking Act (Cap. 19) or other law, from time to time disclose
on a confidential basis to any Government Authority in Singapore or relevant
jurisdiction, any person who derives or may derive rights under or by reference
to this Guarantee (including but not limited to any actual or potential
participant, assignee, transferee or lender) such information in relation to the
Guarantor, this Guarantee, the money and other relevant particulars of any
account which the Guarantor has with the Hedging Counterparty as it may be
required.
12.6 Severance: The illegality, invalidity or unenforceability of any
---------
provision of this Guarantee under the laws of any jurisdiction shall not affect
its legality, validity or enforceability under the laws of any other
jurisdiction nor the legality, validity or enforceability of any other
provision.
12.7 Counterparts: This Guarantee may be signed in any number of
------------
counterparts, all of which taken together and when delivered to the Hedging
Counterparty shall constitute one and the same instrument. Any party may enter
into this Guarantee by signing any such counterpart.
12.8 Governing law: This Guarantee shall be governed by and construed in
-------------
accordance with the laws of Singapore.
12.9 Submission to jurisdiction: In relation to any legal action or
--------------------------
proceedings against the Guarantor or any of its property arising out of or in
connection with this Guarantee ("Proceedings"), the Guarantor hereby irrevocably
-----------
consents to such Proceedings being brought in the courts of Singapore and/or any
state or Federal court in Connecticut and the City of New York, United States of
America, as the Hedging Counterparty may elect and by execution and delivery of
this Guarantee the Guarantor hereby submits to and accepts with regard to such
Proceedings, for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. These submissions
shall not affect the right of the Hedging Counterparty to take Proceedings in
14
any other jurisdiction nor shall the taking of Proceedings in any jurisdiction
preclude the Hedging Counterparty from taking Proceedings in any other
jurisdiction, whether concurrently or not. The Guarantor irrevocably consents to
the service of process in any such Proceedings by the mailing of copies thereof
by registered or certified mail, postage prepaid, to the Guarantor at its
address as provided in Clause 10.1. The foregoing, however, shall not limit the
rights of the Hedging Counterparty to serve process in any other manner
permitted by law. The Guarantor hereby irrevocably:-
(a) appoints the Borrower whose registered office is now at ▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to receive, for and on behalf
of the Guarantor any service of process in Singapore in any
Proceedings with respect to this Guarantee;
(b) agrees to maintain in Singapore a duly appointed process agent,
notified to the Agent, for the purposes of sub-clause (a) above;
(c) agrees that failure by any such process agent to give notice of
such process to it shall not impair the validity of such service
or of any judgment or order based thereon;
(d) consents to the service of process out of any of the said courts
in any such proceedings by the airmailing of copies, postage
prepaid, to the Guarantor at its said address; and
(e) agrees that nothing herein shall affect the right to serve
process in any other manner permitted by law.
The Guarantor hereby irrevocably waives any objection which may now or hereafter
have to the laying of the venue of any Proceedings in Singapore, the State of
Connecticut and/or the State of New York and further waives any claim that any
of Singapore and the State of Connecticut and State of New York is not a
convenient forum for such Proceeding.
12.10 Costs and expenses: All legal and other fees and out-of-pocket
------------------
expenses (including, without limitation, goods and services tax) reasonably
incurred by the Hedging Counterparty or payable in connection with the
preparation, execution, completion, filing and registration of this Guarantee
and all the other documents referred to in this Guarantee, unless paid or
discharged by the Borrower, shall be paid by the Guarantor.
12.11 Enforcement expenses: All legal fees on a full indemnity basis and
--------------------
other costs and disbursements (including, without limitation, goods and services
tax) reasonably incurred by the Hedging Counterparty or payable in connection
with demanding and enforcing payment of moneys due under this Guarantee and all
the other documents referred to in this Guarantee and otherwise howsoever in
enforcing or contemplation of the enforcement of the performance of any of the
undertakings, stipulations, terms, conditions or provisions of this Guarantee
shall be paid by the Guarantor.
12.12 GST and others: Any stamp duty, levies, transaction taxes (including,
--------------
without limitation, goods and services tax) imposed by law or required to be
paid in respect of any moneys paid or payable to or received or receivable by
the Hedging Counterparty or any expenses incurred by the Hedging Counterparty or
incurred in connection with the execution, delivery, performance or enforcement
of this Guarantee
15
and all the other documents referred to in this Guarantee shall (except to the
extent prohibited by law) be borne and paid by the Guarantor.
12.13 Language: All notices or communications under or in connection with
--------
this Guarantee shall be in English or, if in any other language, accompanied by
a translation into English certified as the Hedging Counterparty may require. In
the event of any conflict between the English text and the text in any other
language, the English text shall prevail.
IN WITNESS WHEREOF this Guarantee was executed as a deed.
16
The Guarantor
-------------
▇▇▇▇▇▇ GROUP INC. ) Subscribed and sworn to before me
a Delaware corporation ) this 18th day of June 2001.
by: Sd. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ )
its: Assistant Treasurer ) Sd. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Notary Public
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Telephone No.: (1) (▇▇▇) ▇▇▇ ▇▇▇▇
Facsimile No.: (1) (▇▇▇) ▇▇▇ ▇▇▇▇
Attention: ▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Treasurer
The Hedging Counterparty
------------------------
SIGNED SEALED and DELIVERED )
for and on behalf of )
THE DEVELOPMENT BANK )
OF SINGAPORE LIMITED ) Affixed a Seal
by its Attorney )
TAN ▇▇ ▇▇▇ ) Sd. Tan ▇▇ ▇▇▇
acting under a Power of Attorney )
dated the 28th day of March 2000 )
(a copy of which was deposited )
in the Registry, Supreme Court, )
Singapore on the 10th day of )
April 2000 and registered as )
No. 2645 of 2000) in the )
presence of:- )
Sd. ▇▇▇▇▇▇ ▇▇▇▇
--------------------
Name of Witness: ▇▇▇▇▇▇ ▇▇▇▇
Address: ▇ ▇▇▇▇▇▇▇ ▇▇▇ #▇▇-▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇) ▇▇▇ ▇▇▇▇
Facsimile No.: (▇▇) ▇▇▇ ▇▇▇▇
Attention: Advisory Banking, Investment Banking Group
