THIS AGREEMENT is made the 29th day of September 2010 Between WHEREBY IT IS AGREED as follows:-
Exhibit
10(xli)
Kulicke
& Xxxxx Global Holdings Corporation
(Company
No. LL05002)
Short
Term Loan Facility of up to
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
THIS
AGREEMENT is made the 29th day of September 2010
Between
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(1)
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KULICKE & XXXXX GLOBAL
HOLDING CORPORATION (Company No. LL05002) a company incorporated in
Malaysia and having its registered office at Unit Level 13(E), Xxxx Xxxxxx
Xxxxx, Xxxxxxxxx Xxxx Xxxxxx, Xxxxx Xxxxxxx, 00000 Labuan, F.T,
Malaysia (“Borrower” and includes
its successors in title); and
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(2)
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DBS BANK LTD, LABUAN BRANCH
(Company No. LF00330) (Licensed Labuan Bank 940031C) a financial
institution registered under the Labuan Financial Services and Securities
Xxx 0000 and having its registered office at Xxxxx 00 (X) Xxxx Xxxxxx
Xxxxx, Xxxxxxxxx Xxxx Labuan, Xxxxx Xxxxxxx, 00000 X.X Xxxxxx, Xxxxxxxx
(“Lender”).
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WHEREBY IT IS AGREED as
follows:-
RECITAL
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(A)
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At
the request of the Borrower, the Lender has agreed to make available to
the Borrower the following banking facilities
(“Facilities”):-
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(i)
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a
short term loan facility of up to the maximum aggregate principal amount
of US Dollar Twelve Million (USD12,000,000.00) only (“STL Facility”);
and
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(ii)
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a
revolving credit facility of up to the maximum aggregate principal amount
of US Dollar Eight Million (USD8,000,000.00) only (“RC
Facility”),
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upon the
terms and subject to the conditions herein contained.
INTERPRETATION
1.1 Definitions:
In this Agreement, each of the following expression has, except where the
context otherwise requires, the meaning shown opposite it:-
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Address
for Service
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the
addresses as set out in clause 19.7
hereof;
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Availability
Period
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(a)
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in
relation to the STL Facility, a period commencing from the date of this
Agreement and ending on the close of business in Kuala Lumpur on the day
falling on the date of notice to terminate the STL Facility by the Lender
pursuant to clause 5.10 hereof and/or cancellation of the STL Facility by
the Borrower pursuant to clause 5.11
hereof;
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Kulicke
& Xxxxx Global Holding
Corporation
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(Company
No. LL05002)
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Short
Term Loan Facility of up to
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USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
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(b)
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in
relation to the RC Facility, a period commencing from the date of this
Agreement and ending on the close of business in Kuala Lumpur on the day
falling one (1) month before the Final Maturity Date or such later date as
may be agreed by the Lender in its absolute
discretion;
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Borrower
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KULICKE & XXXXX GLOBAL
HOLDING CORPORATION (Company No. LL05002), a company incorporated
in Malaysia and having its registered office at Unit Level 13(E), Main
Office Tower, Financial Park Labuan, Jalan Merdeka, 87000 Labuan, F.T,
Malaysia and includes its successors in
title;
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Business
Day
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a
day (other than a Saturday, Sunday or public holiday) on which banks are
open for business in Labuan, Kuala Lumpur, Singapore and New York City for
the transaction of business of the nature required by this
Agreement;
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Corporate
Guarantee
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a
corporate guarantee in the form and substance prescribed by the Lender and
agreed by the Corporate Guarantor executed or to be executed by the
Corporate Guarantor in favour of the Lender to guarantee the payment and
repayment of the Total Secured Amounts upon the terms and subject to the
conditions therein contained, and which expression shall, where the
context so admits, include any amendment(s) or variations(s) thereof and
addition(s) thereto and any other instrument(s) executed supplemental
thereto or in substitution thereof;
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Corporate
Guarantor
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KULICKE & XXXXX INDUSTRIES,
INC, a company incorporated in Pennsylvania, United States of
America and having its registered office at 0000 Xxxxxxxx Xxxxx, Xx.
Xxxxxxxxxx, XX 00000 and includes its successors in
title;
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Events
of Default
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any
of those events specified in clause 13.1
hereof;
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Facilities
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collectively,
the STL Facility and the RC
Facility;
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Final
Maturity Date
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10
September 2013;
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2
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Kulicke
& Xxxxx Global Holding
Corporation
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(Company
No. LL05002)
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Short
Term Loan Facility of up to
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USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
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Group
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the
Corporate Guarantor and its subsidiaries collectively and “member of the
Group” shall be construed
accordingly;
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Interest
Determination Date
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the
date which is the second (2nd)
Business Day prior to the commencement of each Interest
Period;
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Interest
Payment Date
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the
last day of an Interest
Period;
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Legal
Process
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pleadings,
all forms of originating process, interlocutory applications of whatever
nature, affidavits, orders and such other documents which are required to
be served under the Rules of Court;
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Lender
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DBS BANK LTD, LABUAN BRANCH
(Company No. LF00330) (Licensed Labuan Bank 940031C), a company
incorporated in Singapore and having a place of business at Level 10(A)
Xxxx Xxxxxx Xxxxx, Xxxxxxxxx Xxxx Xxxxxx, Xxxxx Xxxxxxx, 00000 Federal
Territory of Labuan, Malaysia and includes its successors and
assigns;
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Letters
of Offer
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collectively,
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(i)
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the
letter of offer dated 21 April 2010 relating to the STL Facility;
and
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(ii)
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the
letter of offer dated 21 April 2010 relating to the RC
Facility,
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both issued by the Lender in favour of
the Borrower which reference shall include any amendment(s) or variation(s)
thereto or addition(s) thereto and any instrument(s) executed supplemental
thereto or in substitution thereof;
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Malaysia
Debenture
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a
debenture in form and substance prescribed by the Lender executed or
to be executed by the Borrower in favour of the Lender whereby the
Borrower shall create or has created a first (1st)
fixed charge and a first (1st)
floating charge over the assets and the properties of the Borrower in
Malaysia as security for the Total Secured Amounts, and which expression
shall, where the context so admits, include any amendment(s) or
variations(s) thereof and addition(s) thereto and any other instrument(s)
executed supplemental thereto or in substitution
thereof;
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3
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Kulicke
& Xxxxx Global Holding
Corporation
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(Company
No. LL05002)
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Short
Term Loan Facility of up to
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USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
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RC
Drawing
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the
amount of a drawing made or to be made under the RC Facility following the
delivery of a RC Drawing Notice under clause 4.1(f) or, where the context
so requires, any part thereof for the time being
outstanding;
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RC
Drawing Notice
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a
notice of drawing substantially in the form set out in Schedule 6, duly
completed and signed by the Borrower;
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RC
Facility
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a
revolving credit facility of up to the maximum aggregate principal amount
of US Dollar Eight Million (USD8,000,000.00) only made or to be made
available by the Lender to the Borrower upon the terms and subject to the
conditions herein contained;
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RC
Interest Determination Date
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the
date which is the second (2nd)
Business Day prior to the commencement of each of the RC Interest
Period;
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RC
Interest Payment Date
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the
last day of a RC Interest Period;
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RC
Interest Period
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in
relation to any RC Drawing or the RC Rollover, a period of one (1), two
(2), three (3) or six (6) month(s) as selected by the Borrower pursuant to
clause 7.1 hereof, or if an Event of Default shall occur and is continuing
or if the sum to be drawndown is not available to the Lender for the
period selected by the Borrower (which non-availability shall be notified
by the Lender to the Borrower at least two (2) Business Days prior to the
proposed RC Drawing or RC Rollover, as the case may be), such other period
of any duration as the Lender may at its discretion determine (provided
that to the extent practicable the Lender will inform and consult with the
Borrower prior to such determination) and for which funds are available
but so that:-
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(a)
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the
first (1st)
RC Interest Period shall commence on the date of the RC Drawing and expire
on the last day of the RC Interest Period current at that
time;
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(b)
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each
subsequent RC Interest Period shall commence on the day next following the
last day of the previous RC Interest Period;
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(c)
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a
RC Interest Period which would otherwise end on a day which is not a
Business Day shall end on the next succeeding Business Day or, if that
Business Day falls in the following month, the preceding Business
Day;
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4
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Kulicke
& Xxxxx Global Holding
Corporation
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(Company
No. LL05002)
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Short
Term Loan Facility of up to
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USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
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(d)
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if
a RC Interest Period is extended or shortened by the application of (c)
above, the following RC Interest Period shall (without prejudice to the
application of (c) above) end on the day on which it would have ended if
the preceding RC Interest Period had not been so extended or shortened;
and
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(e)
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a
RC Interest Period which would otherwise terminate after the expiry of the
Availability Period in relation to the RC Facility shall be shortened to
end of the expiry of such Availability Period;
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RC
Loan
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at
any time, the aggregate amount of all RC Drawings and RC Rollovers
outstanding at that time;
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RC
Rollover
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the
amount of the RC Drawing rolled over following the delivery of the RC
Rollover Notice under clause 4.1 hereof;
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RC
Rollover Notice
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a
notice of the rollover substantially in the form set out in Schedule 6duly
completed and signed by the Borrower;
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RC
Secured Amounts
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at
any time, the aggregate of the RC Loan, interest thereon, and such other
sums as are outstanding or otherwise due and owing under the RC Facility
and in accordance with the terms of this
Agreement;
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RC
Prescribed Rate
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subject
to clause 7.7 hereof, such rate equal to the aggregate of two point five
per centum (2.5%) per annum and the SIBOR determined by the Lender on each
RC Interest Determination Date;
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Reference
Banks
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in
relation to the determination of SIBOR, the principal Singapore offices
of:-
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(a) DBS
BANK LTD;
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(b) CITIBANK;
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(c) BANK
OF TOKYO MITSUBISHI UFJ,
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or
such other banks as may from time to time be mutually agreed between the
Borrower and the Lender;
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Said
Debentures
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collectively,
the Malaysia Debenture and the Singapore Debenture;
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Singapore
Debenture
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a
debenture in form and substance prescribed by the Lender executed or to be
executed by the Borrower in favour of the Lender whereby the Borrower
shall create or has created a first (1st)
fixed charge and a first (1st)
floating charge over the assets and the properties of the Borrower in
Singapore
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5
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Kulicke
& Xxxxx Global Holding
Corporation
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(Company
No. LL05002)
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Short
Term Loan Facility of up to
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USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
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as
security for the Total Secured Amounts, and which expression shall, where the
context so admits, include any amendment(s) or variations(s) thereof and
addition(s) thereto and any other instrument(s) executed supplemental thereto or
in substitution thereof;
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Standard
Terms and Conditions
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the
standard terms and conditions governing banking facilities granted by the
Lender generally, which are appended to the Letter of
Offer;
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Security
Documents
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collectively,
the Corporate Guarantee, the Said Debentures and any other documents for
the time being or from time to time constituting the security for the
Total Secured Amounts and the obligations and liabilities of the Borrower
under the Facilities and this Agreement; and references to “Security
Document” include references to any of
them;
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Security
Interest
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any
encumbrance, mortgage, charge (whether fixed or floating), pledge, lien,
hypothecation, right of set-off, assignment by way of security, or any
security interest whatsoever, howsoever created or arising excluding hire
purchase transactions, liens and rights of set-off arising in the normal
course of trading or by operation of
law;
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SIBOR
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in
relation to any amount proposed to be drawndown or owing by the Borrower
hereunder in relation to the RC Drawing, RC Rollover or STL Drawing, on
which interest for the relevant STL Interest Period and/or RC Interest
Period is to accrue:-
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(a)
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the
percentage rate per annum equal to the offered quotation published or
reported by Reuters Limited and appearing on the Reuters monitor screen
which displays the offered rate (rounded upwards if necessary to the
nearest one sixteenth (1/16) of one per centum (1%)) for deposits in US
Dollar for such period equal or approximate to the STL Interest Period
and/or the RC Interest Period at or about 11.00 a.m. (Singapore time) on
the STL Interest Determination Date and/or RC Interest Determination Date,
as the case may be, for such period;
or
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6
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Kulicke
& Xxxxx Global Holding
Corporation
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(Company
No. LL05002)
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Short
Term Loan Facility of up to
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USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
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(b)
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if
no quotation for US Dollar and the relevant STL Interest Period and/or RC
Interest Period is displayed and no alternative basis is agreed pursuant
to clause 10.3(b)(ii) for determining the rate of interest and/or basis of
funding, the arithmetic mean (rounded upwards to four decimal places) of
the rates (as notified to the Lender) at which each of the Reference Banks
was offering to prime banks in the Singapore Interbank Market at or about
11.00 a.m. (Singapore time) on the STL Interest Determination Date and/or
the RC Interest Determination Date, for such period equal or approximate
to the relevant STL Interest Period and/or RC Interest Period, as the case
may be;
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STL
Drawing
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the
amount of the drawing made or to be made under the STL Facility following
the delivery of a STL Drawing Notice under clause 4.1(e)
hereof;
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STL
Drawing Notice
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the
notice of STL Drawing substantially in the form set out in Schedule 3
hereto, duly completed and signed by an authorised officer of the Borrower
and where the context so requires shall mean any one or more of
them;
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STL
Facility
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a
short term loan facility of up to the maximum aggregate principal amount
of US Dollar Twelve Million (USD12,000,000.00) only made or to be made
available by the Lender to the Borrower upon the terms and subject to the
conditions herein contained;
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STL
Interest Determination Date
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the
date which is second (2nd)
Business Days prior to the commencement of each STL Interest
Period;
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STL
Interest Period
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in
relation to the STL Drawing, a period of one (1), two (2), three (3) or
six (6) month(s) as selected by the Borrower pursuant to clause 5.1
hereof, or if an Event of Default shall occur and is continuing or if the
sum to be drawndown is not available to the Lender for the period selected
by the Borrower (which non-availability shall be notified by the Lender to
the Borrower at least two (2) Business Days prior to the proposed STL
Drawing), such other period of any duration as the Lender may at its
discretion determine (provided that to the extent practicable the Lender
will inform and consult with the Borrower prior to such determination) and
for which funds are available but so
that:-
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7
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Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
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(a)
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the
first (1st)
STL Interest Period shall commence on the date of the STL Drawing and
expire on the last day of the STL Interest Period current at that
time;
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(b)
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each
subsequent STL Interest Period shall commence on the day next following
the last day of the previous STL Interest
Period;
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(c)
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a
STL Interest Period which would otherwise end on a day which is not a
Business Day shall end on the next succeeding Business Day or, if that
Business Day falls in the following month, the preceding Business
Day;
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(f)
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if
a STL Interest Period is extended or shortened by the application of (c)
above, the following STL Interest Period shall (without prejudice to the
application of (c) above) end on the day on which it would have ended if
the preceding STL Interest Period had not been so extended or shortened;
and
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(e)
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a
STL Interest Period which would otherwise terminate after the STL
Repayment Date shall be shortened such that it shall expire on the STL
Repayment Date;
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STL
Loan
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at
any time, the aggregate amount of the STL Drawings outstanding, at that
time;
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STL
Prescribed Rate
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subject
to clause 5.9 hereof, such rate equal to the aggregate of one point five
per centum (1.5%) per annum and the SIBOR determined by the Lender on each
STL Interest Determination Date;
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STL Repayment Date
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the
date falling on the last day of the selected STL InterestPeriod
for that STL Drawing;
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STL
Rollover
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the
amount of the STL Drawing rolled over following the delivery of the STL
Rollover Notice under clause 4.1(d)
hereof;
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STL
Rollover Notice
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a
notice of the rollover substantially in the form set out in Schedule 5
duly completed and signed by the
Borrower;
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8
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Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
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USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
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STL
Secured Amounts
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at
any time, the aggregate of the STL Loan together with interest thereon and
all other amounts payable by the Borrower to the Lender in connection with
the STL Facility as provided under the terms of this
Agreement;
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Total
Secured Amounts
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the
aggregate of the STL Secured Amounts and the RC Secured Amounts in
accordance with the terms contained in this Agreement at that time and
references to the “Total Secured Amounts” include any part
thereof;
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USD
and US Dollar
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the
lawful currency of United States of America and, in relation to all
payments to be made under this Agreement, same day
funds.
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1.2
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Construction:
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(a)
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Unless
the context otherwise requires, any reference in this Agreement
to:
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(i)
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an
“agreement” also includes a concession, contract, deed, franchise,
licence, treaty or undertaking (in each case, whether oral or
written);
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(ii)
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the
“assets” of the Borrower shall be construed as a reference to the whole or
any part of its undertaking, property, assets, revenues and
rights;
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(iii)
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a
“clause” shall, subject to any contrary indication, be construed as a
reference to a clause hereof;
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(iv)
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an
“encumbrance” shall be construed as a reference to a mortgage, charge,
pledge, lien or other encumbrance securing any obligation of any person or
any other type of preferential arrangement (including, without limitation,
title transfer and retention arrangements) having a similar
effect;
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(v)
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a
“guarantee” also includes any other obligation (whatever called) of any
person to pay, purchase, provide funds (whether by way of 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,
indemnify against the consequences of default in the payment of, or
otherwise be responsible for, any indebtedness of any other
person;
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(vi)
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“indebtedness”
shall be construed as to include 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;
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(vii)
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“law”
includes common or customary law and any constitution, decree, judgment,
legislation, order, ordinance, regulation, statute, treaty or other
legislative measure in any jurisdiction or any present or future
directive, regulation, request or requirement (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, regulation, request or requirement is
addressed);
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9
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
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(viii)
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a
“month” is a reference to a period starting on one day in a calendar month
and ending on the numerically corresponding day in the next calendar month
save that, where any such period would otherwise end on a day which is not
a Business Day, it shall end on the next Business Day, unless that day
falls in the calendar month succeeding that in which it would otherwise
have ended, in which case it shall end on the preceding Business Day
provided that, if a period starts on the last Business Day in a calendar
month or if there is no numerically corresponding day in the month in
which that period ends, that period shall end on the last Business Day in
that later month (and references to “months” shall be construed
accordingly);
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(ix)
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a
“person” shall be construed as a reference to any person, firm, company,
corporation, government, state or agency of a state or any association or
partnership (whether or not having separate legal personality) of two or
more of the foregoing;
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(x)
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a
“Schedule” shall, subject to any contrary indication, be construed as a
reference to a schedule hereto;
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(xi)
|
“tax”
shall be construed so as to include any tax, levy, impost, duty or other
charge of a similar nature (including, without limitation, any penalty
payable in connection with any failure to pay or any delay in paying any
of the same); and
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(xii)
|
the
“winding-up” or “dissolution” of a company shall be construed so as to
include any equivalent or analogous proceedings under the law of the
jurisdiction in which such company is incorporated or any jurisdiction in
which such company carries on
business;
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(b)
|
this
Agreement or any other agreement or document shall be construed as a
reference to this Agreement or, as the case may be, such other agreement
or document as the same may have been, or may from time to time be,
amended, varied or supplemented;
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(c)
|
a
statute shall be construed as a reference to such statute as the same may
have been, or may from time to time be, amended or
re-enacted;
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(d)
|
words
importing the plural shall include the singular and vice versa;
and
|
(e) Clause
and Schedule headings are for ease of reference only.
THE
FACILITIES
2.1 The
Facilities: Subject to the provisions of this Agreement, the Lender has,
at the request of the Borrower, agreed to make available to the Borrower the
following banking facilities:-
|
(a)
|
a
short term loan facility of up to the maximum aggregate principal amount
of US Dollar Twelve Million (USD12,000,000.00) only;
and
|
10
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities Agreement
|
|
(b)
|
a
revolving credit facility of up to the maximum aggregate principal amount
of US Dollar Eight Million (USD8,000,000.00)
only.
|
2.2 Purpose:
The Facilities shall be utilised by the Borrower to finance its working capital
requirement.
AVAILABILITY
3.1 Conditions
Precedent: The Facilities shall become available to the Borrower on the
date the Lender has received the documents and evidence listed in Schedule 1
hereto in each case in form and content satisfactory to the Lender.
3.2 Waiver of
Conditions Precedent: The documents and evidence set out in Schedule 1
hereto are inserted for the sole benefit of the Lender and may be waived in
whole or in part by the Lender with or without terms or conditions and without
prejudicing the rights of the Lender under this Agreement to assert such terms
and conditions in respect of subsequent utilisation of the
Facilities.
UTILISATION
4.1 Conditions:
Subject to the provisions of this Agreement, the Borrower may, on any Business
Day during the Availability Period, utilise the Facilities if:-
|
(a)
|
no
Event of Default has occurred and subsisting or will occur as a result of
the making of the proposed utilisation of the
Facilities;
|
|
(b)
|
the
conditions precedent contained in Schedule 1 have been fulfilled by the
Borrower (or otherwise waived by the Lender pursuant to clause
3.2);
|
|
(c)
|
in
relation to the STL Facility, the Lender has received a STL Drawing Notice
at least five (5) Business Days before the relevant proposed STL
Drawing;
|
|
(d)
|
in
the case of the STL Rollover, the Lender has received the STL Rollover
Notice at least three (3) Business Days before the STL Interest
Determination Date;
|
|
(e)
|
following
the making of proposed STL Drawing, the STL Loan does not exceed US Dollar
Twelve Million (USD12,000,000.00);
|
|
(f)
|
in
relation to the RC Drawing, the Lender has received a RC Drawing Notice
from the Borrower at least five (5) Business Days before the date of a
proposed RC Drawing;
|
|
(g)
|
in
the case of the RC Rollover, the Lender has received the RC Rollover
Notice at least three (3) Business Days before the RC Interest
Determination Date;
|
11
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities Agreement
|
|
(h)
|
following
the making of a proposed RC Drawing or RC Rollover, the RC Loan does not
exceed US Dollar Eight Million (USD8,000,000.00)
only;
|
|
(i)
|
in
respect of a RC Rollover, the Borrower shall have paid in full all
interest due and payable on the amount to be rolled over at the end of the
relevant RC Interest Period;
|
|
(j)
|
there
has been no material adverse change in the condition (financial or
otherwise) of the Borrower and no extraordinary circumstance or change of
law or other governmental action which would materially and adversely
affect the ability of the Borrower to observe and perform the covenants
and obligations on its part to be performed and observed under this
Agreement; and
|
|
(k)
|
each
of the representations and warranties set out in clause 11.1 remains
accurate to the extent provided therein on the date of the proposed
utilisation of the Facilities as if given on that date by reference to the
facts and circumstances then
existing,
|
then
subject to the provisions of this Agreement, the Borrower may on any Business
Day during the tenure of the STL Facility or the RC Facility make a STL Drawing
or RC Drawing or a RC Rollover, as the case may be, under the
Facilities.
4.2 Irrevocability:
Subject to the provisions in clause 4.3, each STL Drawing Notice and/or RC
Drawing Notice shall be irrevocable and, subject to clauses 10.1, 10.2 and 10.7,
the Borrower shall borrow the amount stated in each STL Drawing Notice and/or
the RC Drawing Notice on the date specified therein.
4.3 Amount:
The amount of each STL Drawing and/or RC Drawing shall be in multiples of US
Dollar One Hundred Thousand (USD100,000.00) only and shall not be less than US
Dollar Five Hundred Thousand (USD500,000.00). For the avoidance of doubt, the
Borrower may have multiples STL Drawing and/or RC Drawing.
4.4 Confirmation:
The Lender shall, as soon as practicable, send to the Borrower a confirmation in
respect of each STL Drawing and/or RC Drawing made by the Borrower under the
Facilities. Such confirmation shall be conclusive and binding on the Borrower
unless the Borrower objects in writing thereto within fourteen (14) days of the
date of such confirmation.
PROVISIONS RELATING TO THE STL
FACILITY
5.1 STL
Interest Period: Subject to the definition of “STL Interest Period” in
clause 1.1, each STL Interest Period shall be for one (1), two (2), three (3) or
six (6) month(s) as selected by the Borrower in a written notice received by the
Lender not later than 11.00 a.m. on the STL Interest Determination
Date.
5.2 STL
Rate: The rate of interest payable on the STL Facility shall be the STL
Prescribed Rate.
5.3 Payment:
Interest under this Agreement and the STL Facility shall be calculated on the
basis of actual days elapsed and a year of three hundred and sixty (360) days
and shall be paid by the Borrower to the Lender in arrears on each STL Interest
Payment Date.
12
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities Agreement
|
5.4 Late
Payments: In addition to and without prejudice to the rights of the
Lender under this Agreement, if the Borrower fails to pay any amount due and
owing under the STL Facility in accordance with this Agreement, the Borrower
shall pay interest on that overdue amount from the date of default up to the
date of actual payment (as well before and after judgment and notwithstanding
that the relationship of banker and customer between the Borrower and the Lender
has been terminated) at the rate per annum, subject to clause 5.9 hereof, which
is three per centum (3.0%) per annum above the STL Prescribed Rate.
Notwithstanding that demand has been made, interest shall accrue until the date
of actual payment. Such default interest shall be calculated on a daily basis,
based on the number of days elapsed and a year of three hundred and sixty (360)
days. Unless otherwise provided in this Agreement, interest on such overdue
amounts shall be due and payable immediately on demand by the Lender but if not
previously demanded, shall be paid at the end of each month or period as may be
mutually agreed between the Lender and the Borrower.
5.5 Lender's
Notification: The Lender shall notify the Borrower of the amount of
interest payable as soon as it is determined under this Agreement. The
notification of the Lender as to the amount of interest payable shall, in the
absence of manifest error, be conclusive and notwithstanding anything
hereinafter contained, any delay on the part of the Lender to give notice in
accordance with the provisions herein contained shall not absolve the Borrower
from its obligation to pay the rate of interest as notified pursuant to this
clause 5.5.
5.6 Capitalisation
of Interest: The interest on any principal monies for the time being
hereby secured under the STL Facility including capitalised interest shall, if
remaining unpaid, on each STL Interest Payment Date be capitalised and added for
all purpose to the principal sum then owing and shall thenceforth bear interest
at the rate specified in clause 5.4 hereof and be payable accordingly and all
the covenants and conditions contained in these presents and all powers and
remedies conferred by law or these presents and all rules of law or equity in
relation to the said principal sum and interest shall equally apply to such
capitalised arrears of interest and to interest on such arrears.
5.7 Ascertaining
Limits: For the purposes of ascertaining whether the limit of the
principal intended to be hereby secured under the STL Facility has been exceeded
or not, all accumulated and capitalised interest shall be deemed to be interest
and not principal sum.
5.8 Interest
After Cessation of Relationship: The Borrower expressly agrees that the
rights of the Lender to charge interest and/or interest on late payments and/or
capitalised interest as provided for herein, shall subsist until full payment of
the STL Secured Amounts shall have been received by the Lender, notwithstanding
that the Lender may have issued any notice of or demand to the Borrower to repay
the STL Facility and/or the relationship between the Lender and the Borrower as
banker and customer may have been terminated and/or the account of the Borrower
with the Lender closed.
5.9 Variation:
Notwithstanding the provisions relating to the rate of interests payable under
clause 5.2 and clause 5.4, the Lender shall be entitled to vary at its
discretion the margin of interest over the SIBOR and/or the late payment
interest referred in Clause 5.4 above within the guidelines issued by the Labuan
Financial Service Authority and/or any other authorities having jurisdiction
over the Lender in Malaysia, by serving a notice in writing to the Borrower of
such intention and the new rate of interest shall be payable on such date of the
RC Drawing, the RC Rollover or the STL Drawing, as the case may be, made after
the date specified in the said notice. Service of such notice shall
be effected in the same manner as a notice demanding payment of the balance due
as hereinafter provided.
13
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities Agreement
|
5.10 Review:
Subject always to the Lender’s right to recall and cancel the STL Facility upon
demand and pursuant to clause 13.1 hereof, the STL Facility shall be subject to
such periodic review by the Lender at the Lender’s absolute discretion. Upon
conducting such review on the STL Facility, the Lender is entitled at its sole
and absolute discretion to immediately terminate, cancel,
suspend, reduce the amount made available under the STL Facility or
vary the terms of the STL Facility as it deems fit by giving a written notice to
the Borrower. The Borrower agrees that any termination, cancellation,
suspension, reduction of amount or variation of terms of the STL Facility by the
Lender pursuant to this clause 5.10 shall not entitle the Borrower to claim from
the Lender any damages or costs or expenses the Borrower may suffer as a result
of such termination, cancellation, suspension, reduction of amount or variation
of terms of the STL Facility or part thereof.
5.11 Cancellation:
At any time before the expiry of the Availability Period of the STL Facility,
the Borrower may, by giving one (1) week’s prior written notice, cancel the
whole or part of the available and undrawn portion of the STL Facility and shall
not be available to the Borrower. In the event the Borrower’s request to cancel
the STL Facility occurs after a STL Drawing Notice has been issued but before
the requested STL Drawing is made, the Borrower shall bear all reasonable and
documented costs incurred by the Lender in liquidating or employing deposits
from third parties to make or fund such STL Drawing but not drawn by the
Borrower as a result of such cancellation of the STL Facility.
REPAYMENT AND PREPAYMENT OF STL
FACILITY
|
6.1
|
Repayment
of STL Facility:
|
|
(a)
|
Notwithstanding
anything to the contrary contained herein, upon the occurrence of an Event
of Default, the Borrower shall repay to the Lender on demand the STL Loan,
interest thereon and such other sums as are outstanding or otherwise due
and owing under the STL Facility. Upon demand by the Lender all sums then
outstanding and due shall be chargeable with interest at such rate
provided in clause 5.4 hereof.
|
|
(b)
|
Until
demanded pursuant to clause 6.1(a) of this Agreement, each STL Drawing
shall, unless rolled over, be repaid in full on the STL Interest Payment
Date relative thereto together with all interest accrued thereon, and in
any event, the amount of the STL Drawing shall be repaid in full on that
date.
|
6.2 Rollover: If
a STL Rollover Notice has been received by the Lender in accordance with clause
4.1 requesting STL Rollover of a STL Drawing described in the STL Rollover
Notice then, subject to the provisions of this Agreement, no actual repayment of
principal by the Borrower shall be required on the STL Interest Payment Date of
the STL Drawing to be rolled over and no actual advance by the Lender shall be
made in respect of that STL Rollover Notice but in all other respects the
repayment of the STL Drawing falling to be repaid shall be deemed to have been
made and a new STL Drawing shall be deemed to have been made under the STL
Facility. Subject to clause 1.1, the tenor of the STL Rollover shall be divided
into successive STL Interest Periods which shall be elected by the Borrower by
giving a written notice not later than 11.00 a.m. on the STL Interest
Determination Date Revolving Credit not later than three (3) Business Days
before the first day of a Revolving Credit Interest Period a notice selecting
one (1), two (2), three (3) or six (6) months.
14
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities Agreement
|
6.3 Prepayment:
The Borrower may at any time prepay the STL Loan in whole or in part subject to
a minimum amount of US Dollar One Hundred Thousand (USD100,000.00) and in
integral multiples of US Dollar One Hundred Thousand (USD100,000.00) provided
that:-
|
(a)
|
the
Borrower shall pay to the Lender the funding loss incurred by the Lender
as a result of such prepayment; and
|
|
(b)
|
the
Borrower has paid in full all accrued interest, fees and other amount due
and payable under this Agreement on such prepayment
date.
|
6.4 Irrevocability:
Any notice under clause 6.2 shall be irrevocable. The amount of any prepayment
under clause 6.2 shall become due and payable on the date specified in the
relevant notice.
6.5 Limitation: The
Borrower shall not be entitled to prepay the STL Loan or any part of it or
cancel the STL Facility in whole or in part otherwise than as specifically
provided in this Agreement.
PROVISIONS
RELATING TO THE RC FACILITY
7.1 Revolving
Credit Interest
Period: Subject to the definition of “RC Interest Period” in
clause 1.1, the tenor of the RC Facility shall be divided into successive RC
Interest Periods which shall be elected by the Borrower by giving the Lender a
written notice not later than 11.00 a.m. on the RC Interest Determination Date a
notice selecting one (1), two (2), three (3) or six (6) months.
7.2 Rate: Subject
to clause 7.7, the rate of interest payable on the RC Facility shall be the RC
Prescribed Rate.
7.3 Payment: Interest
under this Agreement and the RC Facility shall be calculated on the basis of
actual days elapsed and a year of three hundred and sixty (360) days and shall
be paid by the Borrower to the Lender in arrears on each RC Interest Payment
Date.
7.4 Interest
on Late Payment: In addition to and without prejudice to the
rights of the Lender under this Agreement, if the Borrower fails to pay any
amount due and owing under the RC Facility in accordance with this Agreement,
the Borrower shall pay interest on that overdue amount from the date of default
up to the date of actual payment (as well before and after judgment and
notwithstanding that the relationship of banker and customer between the
Borrower and the Lender has been terminated) at the rate per annum, subject to
clause 7.7 hereof, which is three per centum (3.0%) per annum above the RC
Prescribed Rate. Notwithstanding that demand has been made, interest shall
accrue until the date of actual payment. Such default interest shall be
calculated on a daily basis, based on the number of days elapsed and a year of
three hundred and sixty (360) days. Unless otherwise provided in this Agreement,
interest on such overdue amounts shall be due and payable immediately on demand
by the Lender but if not previously demanded, shall be paid at the end of each
month or period as may be mutually agreed between the Lender and the
Borrower.
15
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities Agreement
|
7.5 Lender’s
Notification: The Lender shall notify the Borrower of the
amount of interest payable as soon as it is determined under this
Agreement. The notification of the Lender as to a amount of interest
payable shall, in the absence of manifest error, be conclusive and
notwithstanding anything hereinafter contained any delay on the part of the
Lender to give notice in accordance with the provisions herein contained shall
not absolve the Borrower from its obligation to pay the rate of interest as
specified pursuant to this clause 7.5.
7.6 Interest
after cessation of relationship: The Borrower expressly agrees
that the rights of the Lender to charge interest and/or interest on late
payments and/or capitalised interest as provided for herein, shall subsist until
full payment of the RC Secured Amounts shall have been received by the Lender,
notwithstanding that the Lender may have issued any notice of or demand to the
Borrower to repay the RC Facility and/or the relationship between the Lender and
the Borrower as banker and customer may have been terminated and/or the account
of the Borrower with the Lender closed.
7.7 Tenure:
In relation to the RC Facility, the tenure of the RC Facility is for a period of
commencing from the date of this Agreement up to the Final Maturity
Date.
7.8 Cancellation:
It is hereby agreed that any part of the RC Facility not utilised at the end of
the Availability Period in relation to the RC Facility shall be automatically
cancelled and shall not be available to the Borrower. At any time before the
expiry of the Availability Period in relation to the RC Facility, the Borrower
may, by giving thirty (30) Business Days’ prior written notice, cancel the whole
or part of the available and undrawn portion of the RC Facility provided always
that the Borrower has paid to the Lender a Cancellation Fee as set out in clause
7.11 below. In the event the Borrower’s request to cancel the RC Facility occurs
after a RC Drawing Notice has been issued but before the requested RC Drawing is
made, the Borrower shall bear all reasonable and documented costs incurred by
the Lender in liquidating or employing deposits from third parties to make or
fund such RC Drawing but not drawn by the Borrower as a result of such
cancellation of the RC Facility.
7.9 Commitment
Fee: The Borrower shall pay to the Lender quarterly in arrears as
commitment fee on the unutilised portion of the RC Facility at the end of every
quarter at the rate of one per centum (1%) per annum during the Availability
Period in relation to the RC Facility. The Commitment Fee shall be calculated on
the basis of actual days elapsed and a year of three hundred and sixty (360)
days.
7.10 Arranger
Fee: The amount of US Dollar Eighty Thousand (USD80,000.00) being one per
centum (1%) of the RC Facility (“Arrangement Fee”) amount paid to DBS Bank Ltd,
Singapore on 11 May 2010 shall be deemed as the Arrangement Fee due and payable
to DBS Bank Ltd, Singapore for its role in arranging the RC Facility. The
Arrangement Fee shall not be refunded in whole or in part.
7.11 Cancellation
Fee: The Borrower shall pay the Lender a cancellation fee of one per
centum (1%) (“Cancellation Fee”) of the amount to be cancelled unless the RC
Facility is refinanced by the Lender, its overseas branch or its subsidiaries or
the refinancing of the RC Facility by the Borrower is pursuant to a transfer or
restructuring of business of the Borrower and or the Group and the Lender is
unable to refinance the whole of the RC Facility.
16
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities Agreement
|
REPAYMENT
AND PREPAYMENT OF RC FACILITY
8.1 Repayment
of RC Facility:
|
(a)
|
Notwithstanding
anything to the contrary contained herein, upon the occurrence of an Event
of Default, the Borrower shall repay to the Lender on demand the RC Loan,
interest thereon and such other sums as are outstanding or otherwise due
and owing under the RC Facility. Upon demand by the Lender all sums then
outstanding and due but unpaid shall be chargeable with interest at such
rate provided in clause 7.4 hereof from the date of
demand.
|
|
(b)
|
Until
demanded pursuant to clause 8.1(a) of this Agreement, each RC Drawing
shall, unless rolled over, be repaid in full on the RC Interest Payment
Date relative thereto together with all interest accrued thereon, and in
any event, the amount of the RC Drawing shall be repaid in full on that
date.
|
8.2 Rollover: If
a RC Rollover Notice has been received by the Lender in accordance with clause
4.1(g) requesting RC Rollover of a RC Drawing described in the RC Rollover
Notice then, subject to the provisions of this Agreement, no actual repayment of
principal by the Borrower shall be required on the RC Interest Payment Date of
the RC Drawing to be rolled over and no actual advance by the Lender shall be
made in respect of that RC Rollover Notice but in all other respects the
repayment of the RC Drawing falling to be repaid shall be deemed to have been
made and a new RC Drawing shall be deemed to have been made under the RC
Facility. Subject to clause 1.1, the tenor of the RC Rollover shall
be divided into successive RC Interest Periods which shall be elected by the
Borrower by giving a written notice not later than 11.00 a.m. on the RC Interest
Determination Date Revolving Credit not later than three (3) Business
Days before the first day of a Revolving Credit Interest Period a notice
selecting one (1), two (2), three (3) or six (6) months.
8.3 Prepayment
of the RC Facility:
|
(a)
|
The
Borrower may on any Business Day which is an Interest Payment Date prepay
the RC Loan in whole or in part subject to a minimum amount of US Dollar
One Hundred Thousand (USD100,000.00) or in integral multiples of US Dollar
One Hundred Thousand (USD100,000.00) PROVIDED
THAT:
|
|
|
(i)
|
the
Borrower has given the Lender not less than five (5) Business Days prior
to the proposed date of prepayment written notice stating the principal
amount to be prepaid;
|
|
|
(ii)
|
the
Borrower shall pay to the Lender a prepayment fee of one point five per
centum (1.5%) flat on the amount to be prepaid for the unexpired period of
maturity; and
|
|
|
(iii)
|
the
Borrower has paid in full all accrued interest and other amount due on
such prepayment date.
|
|
(b)
|
If
prepayment is made on a Business Day which is not the Interest Payment
Date, the Borrower shall pay to the Lender the funding loss incurred by
the Lender as a result of such
prepayment.
|
|
(c)
|
Any
notice under clause 8.3 (a) shall be
irrevocable.
|
|
(d)
|
Any
amount prepaid under clause 8.3 (a) shall be available for reborrowing
subject to the provisions of this
Agreement.
|
17
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities Agreement
|
SECURITY
9.1 Security
for Total Secured Amounts: For the purpose of better securing the payment
and repayment of the Total Secured Amounts, the Borrower shall upon the
execution of this Agreement execute the Said Debentures and cause the Corporate
Guarantor to execute the Corporate Guarantee.
9.2 Covenant
to Provide Further Security: Without prejudice in any manner whatsoever
to the rights of the Lender under this Agreement, the Borrower shall
when reasonably requested (which request may be made at any time and
under such circumstances as the Lender may deem fit), by the Lender so to do,
execute or cause to be executed in favour of the Lender or as the Lender shall
reasonably direct such legal or other mortgages, charges, assignment, transfers
or agreements as they shall require of and on all the Borrower's estate, right,
title and interest in any property or assets or business now belonging to or
which may hereafter be acquired by or belong to the Borrower (including any
vendor's lien) and the benefit of all licences held in connection therewith to
secure all monies and liabilities hereby agreed to be paid, such charges,
assignments, transfers or agreements to be prepared by or on behalf of the
Lender at the cost of the Borrower and to contain all such terms and conditions
for the benefit of the Lender as the Lender may reasonably require.
9.3 Further
Assurance: The Borrower shall from time to time and at any time execute
and do all such transfers, assignments, assurances, charges, debentures,
instruments documents acts and things as the Lender may reasonably require for
perfecting the security intended to be hereby constituted and provided that an
Event of Default has occurred and is continuing for facilitating the realisation
of the property charged or to be charged or intended or agreed to be charged to
the Lender and the exercise by it of all the powers authorities and discretion
hereby conferred on the Lender and the Borrower shall also give all notices
orders and directions which the Lender may think expedient.
9.4 Continuing
Security: The security created by this Agreement and the
Security Documents are expressly intended to be and shall be a continuing
security for all monies whatsoever now or hereafter or from time to time owing
and due to the Lender by the Borrower whether pursuant to the Facilities or
otherwise howsoever, notwithstanding that the Borrower may at any time or times
cease to be indebted to the Lender for any period or periods and notwithstanding
any settlement of any account or accounts or otherwise.
9.5 Liens and
other securities not affected: Nothing herein contained shall
prejudice or affect any lien to which the Lender is entitled or any securities
which the Lender may from time to time hold for or on account of the monies
hereby secured or any part thereof nor shall anything herein contained operate
so as to merge or otherwise affect any xxxx nor guarantee mortgage or other
security which the Lender may have for any monies intended to be hereby or
otherwise secured or any right or remedy of Lender there under.
18
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities Agreement
|
CHANGES IN CIRCUMSTANCES
10.1 Illegality: Where
after the date of this Agreement the introduction, imposition or variation of
any law or any change in the interpretation or application thereof by the Labuan
Financial Services Authority and/or any other authorities having jurisdiction
over the Lender in Malaysia, or any fiscal, monetary or other authority charged
with the administration thereof, makes it apparent to the Lender that it will be
unlawful or impractical without breaching any such law for the Lender to
maintain, fund or give effect to its obligations under this Agreement or to
continue to make available the Facilities (which shall include the funding of
the Facilities by the Lender):-
|
(a)
|
the
Lender shall forthwith give the Borrower a notice in writing of the
relevant circumstances (certifying the effect thereof) whereupon the
Lender’s obligation (if any) in respect of the Facilities shall forthwith
including any obligation in respect of future STL Drawing and/or RC
Drawing, be suspended and the Facilities shall be suspended to such
extent;
|
|
(b)
|
the
Lender shall thereupon forthwith negotiate in good faith with the Borrower
with a view to agreeing to such terms for making the Facilities available
to the Borrower on a basis which is not unlawful or impracticable (as the
case may be) without breaching such law;
and
|
|
(c)
|
if
after thirty (30) days of such negotiations or within any shorter period
as the relevant law, order regulation, official directive or governmental
or administrative policy or guideline may allow, no agreement shall have
been reached as aforesaid, the Lender shall give notice of that fact in
writing to the Borrower and the Lender’s outstanding obligation (if any)
in respect of the Facilities shall thereupon be terminated and the
Facilities shall be cancelled, and the Borrower, shall upon so being
notified, prepay to the Lender without any payment of fees and/or
penalties, all of the Total Secured Amounts in accordance with clause 10.4
and clause 10.5 hereof on such date as the Lender shall certify to be
necessary to comply with the relevant
law.
|
10.2 Increased
Costs Without prejudice to clause 14.1 below where if by reason of the
introduction or variation of any law by the Labuan Financial Services Authority
and/or any other authorities having jurisdiction over the Lender in Malaysia, or
other fiscal, monetary or other authority charged with the administration
thereof which:-
|
(a)
|
imposes,
modifies or deems applicable any reserve, deposit or similar requirement
against any assets held by, or deposits with, in or for the account of, or
loans by, the Lender which would increase the cost to the Lender of
funding the Facilities or reduce the amount receivable by the Lender in
respect of the Facilities; or
|
|
(b)
|
subjects
the Lender to any tax (other than tax on the overall net income of the
Lender) with respect to this Agreement, the Facilities or any part thereof
or changes the basis of taxation in respect of any payment made or to be
made to the Lender under this Agreement (except for changes in the rate of
tax on the overall net income of the Lender);
or
|
|
(c)
|
imposes
on the Lender any other condition affecting its granting of the Facilities
which would increase the cost to the Lender of making or maintaining the
Facilities or the Total Secured Amounts or reduce the amount of any sum
received or receivable by it in respect of the Facilities or oblige it to
make any payment on, or calculated by reference to, the amount of any sum
received or receivable by it from the Borrower under this Agreement,
then:-
|
19
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities Agreement
|
|
|
(i)
|
the
Lender shall forthwith upon becoming aware thereof, give the Borrower a
notice in writing of the happening of any such
event;
|
|
|
(ii)
|
the
Lender shall thereupon forthwith negotiate in good faith with the Borrower
for a period not exceeding thirty (30) days after the date of such notice
referred to in sub-clause (i) above, with a view to agreeing on a means of
mitigating the increased cost or other reduction aforesaid;
and
|
|
|
(iii)
|
whether
or not such agreement to mitigate the increased cost or other reduction as
aforesaid is reached within the said period of thirty (30) days, the
Borrower shall (without prejudice to the Borrower’s right or prepayment as
provided for herein below) on demand, pay to the Lender such amounts as
the Lender from time to time and at any time determines is material and
notifies the Borrower (in a certificate setting forth the basis of
computation of such amount in reasonable detail and with written evidence
supporting such claim) to be necessary to compensate it for such
additional cost, reduction or payment, Subject Always
to:-
|
|
|
(aa)
|
at
the Borrower’s irrevocable election (by a notice to the Lender) the
Facilities shall be cancelled; and
|
|
|
(bb)
|
the
Borrower may upon giving the Lender not less than thirty (30) days’ notice
or such other period as may be mutually agreed between the Borrower and
the Lender, which shall be irrevocable, prepay the STL Loan and/or the RC
Loan, as the case may be, in accordance with clauses 10.4 and 10.5 without
any payment of fees and/or penalties in respect of such
prepayment.
|
|
10.3
|
Market
Disruption: If, in relation to any STL Interest Period and/or RC
Interest Period:-
|
|
(a)
|
by
reason of circumstances affecting the Singapore Interbank Market
generally, the Lender reasonably determines that, reasonable and adequate
means do not or will not exist for ascertaining under clause 5.2 and
clause 7.2 its cost of funding the STL Loan and/or RC Loan, as the case
may be; or
|
|
(b)
|
the
Lender reasonably determines that deposits in US Dollars are not in the
ordinary course of business available in the Singapore Interbank Market
for a period equal to the forthcoming STL Interest Period and/or RC
Interest Period in amounts sufficient to fund a STL Drawing or a RC
Drawing or the STL Loan or the RC Loan, then the Lender shall notify the
Borrower of such circumstances
and:-
|
|
|
(i)
|
no
STL Drawing or RC Drawing or further STL Drawings or RC Drawings (if any)
shall be made while such circumstances continue to
exist;
|
20
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities Agreement
|
|
|
(ii)
|
unless
within thirty (30) days after the giving of the notice, the Borrower and
the Lender arrive, by negotiation in good faith, at an alternative basis
acceptable to the Borrower and the Lender for continuing the STL Loan
and/or the RC Loan, as the case may be, (and any alternative basis agreed
in writing shall be retroactive to and effective from the commencement of
the relevant STL Interest Period and/or RC Interest Period), the Borrower
will prepay the STL Loan and/or the RC Loan, as the case may
be, to the Lender after the end of the thirty (30) day period in
accordance with clause 10.4 save that the accrued interest shall be
payable to the Lender at a rate equal to the relevant margin specified in
clause 5.2 and clause 7.2 plus the aggregate of the amounts determined by
the Lender as being its cost of continuing the STL Loan and/or the RC
Loan, as the case may be, during the period referred to in this clause;
and
|
|
|
(iii)
|
while
any agreed alternative basis is in force, the Lender, in consultation with
the Borrower, shall periodically (but at least monthly) determine whether
circumstances are such that the basis is no longer necessary;
and if the Lender so reasonably determines, it shall forthwith notify
the Borrower and that basis shall cease to be effective on a date
specified by the Lender.
|
10.4 Prepayment:
Where the Borrower has given notice under clauses, 10.1, 10.2 or
10.3 to prepay the STL Loan and/or the RC Loan, as the case may
be:-
|
|
(i)
|
the
amount of the prepayment shall become due and payable on the expiry of
five (5) days after the receipt of the notice by the Lender;
and
|
|
|
(ii)
|
the
Lender’s obligations (if any) in respect any further STL Drawing and/or RC
Drawing shall terminate and the Facilities shall be
cancelled.
|
For the
avoidance of doubt, any prepayment pursuant to clauses 10.1, 10.2 or 10.3 the
Borrower shall not be liable to pay any no break funding cost or prepayment
penalty.
10.5 Amount:
On prepaying to the Lender the STL Loan and/or RC Loan under clauses 10.1, 10.2
or 10.3, the Borrower shall pay the accrued interest on the STL Loan and/or the
RC Loan together with all other amounts due and payable to the Lender under this
Agreement.
10.6 Notifications:
Any notification by the Lender concerning any matter referred to in clauses 10.1
or 10.2 or 10.3 shall, in the absence of manifest error, be conclusive evidence
as to that matter and shall be binding on the Borrower and the
Lender.
REPRESENTATIONS AND
WARRANTIES
11.1 Representations
and Warranties: The Borrower acknowledges that the Lender has entered
into this Agreement and the Security Documents and agreed to provide the
Facilities in full reliance on representations by the Borrower in the following
terms; and the Borrower now represents and warrants to the Lender
that:-
|
(a)
|
Status:
the Borrower is duly incorporated with limited liability and is validly
existing under the laws of
Malaysia;
|
21
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities Agreement
|
|
(b)
|
Authorisations:
the memorandum and articles of association and/or the constitutional
documents of the Borrower and the Corporate Guarantor include provisions
which give power, and all necessary corporate authority has been obtained
and action taken, for the Borrower and the Corporate Guarantor to own
their assets, carry on their business
and
|
|
|
operations
as they are now being conducted, and execute, deliver, and perform its
obligations under this Agreement and the Security Documents and each of
this Agreement and the Security Documents constitutes valid and binding
obligations of the Borrower and the Corporate Guarantor enforceable in
accordance with their terms;
|
|
(c)
|
Non-violation:
neither the execution and delivery of this Agreement and the Security
Documents nor the performance of any of the transactions contemplated
herein does or will contravene or constitute a default under, or cause to
be exceeded any limitation on the Borrower or the powers of its directors
imposed by or contained in, (i) any law or regulation or any order or
decree of any governmental authority or agency by which the Borrower or
the Corporate Guarantor or any of their assets is bound or materially
affected, (ii) the Borrower’s and the Corporate Guarantor’s constitutional
documents or (iii) any agreement, mortgage, contract or other undertaking
or instrument to which the Borrower or the Corporate Guarantor is a party
or by which any of their assets is bound or (iv) any other limitation
imposed by reason of any borrowing by the Borrower, and will not result in
the creation or imposition of, or any obligation to create or impose any
mortgage lien pledge or charge on any of the Borrower’s assets pursuant to
the provisions of any such mortgage, contract or other undertaking or
instrument;
|
|
(d)
|
Consents:
all consents, licences, approvals or authorisations of any governmental
authority in Malaysia which are required to be obtained by the Borrower in
connection with the execution, performance, validity or enforceability of
this Agreement and the Security Documents and the carrying on of the
Borrower’s and the Corporate Guarantor’s business have been obtained or
will be obtained and are or will be in full force and effect and save and
except for the endorsement of exemption of stamp duty in Malaysia, no
exemption, registration, recording, filing or notarisation and no payment
of any duty or tax and no other action whatsoever which has not been duly
and unconditionally obtained, made or taken prior to the date hereof is
necessary or desirable to be obtained, made or taken by the Borrower or
the Corporate Guarantor to ensure the legality, validity, enforceability
or priority of the liabilities and obligations of the Borrower or the
Corporate Guarantor or the rights of the Lender under this Agreement
and/or the Security Documents;
|
|
(e)
|
No
default: no event of default has occurred and is continuing under
any agreement or instrument which the Borrower or the Corporate Guarantor
or any of their assets is bound or affected, being a contravention or
default which have a material and adverse effect on the business, assets
or financial condition of the Borrower or the Corporate
Guarantor;
|
|
(f)
|
Litigation:
no litigation or arbitration or administrative proceedings that have an
effect on the Borrower’s or the Corporate Guarantor’s business, assets or
condition which may materially and adversely affect the Borrower’s or the
Corporate Guarantor’s solvency or the Borrower’s or Corporate Guarantor’s
ability to observe or perform its obligations under this Agreement and the
Security Document, is presently in progress or pending or threatened
against the Borrower or the Corporate Guarantor or any of their
assets;
|
22
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities Agreement
|
|
(g)
|
Tax
liabilities: all necessary returns have been or will be delivered
by or on behalf of the Borrower to the relevant taxation authorities and
the Borrower is not in default in the payment of any taxes, and no claim
is being asserted with respect to taxes which is not disclosed in the
relevant financial statements;
|
|
(h)
|
No
security: none of the assets of the Borrower is affected by any
Security Interest, and the Borrower is not a party to, nor is it or any of
its assets bound by, any order, agreement or instrument under which the
Borrower is, or in certain events may be, required to create, assume or
permit to arise any Security Interest, other than those Security Interests
permitted under clause 12.1(a)
hereof;
|
|
(i)
|
Accounts:
the audited financial statements (including the income statement and
balance sheet) of the Borrower for each of its financial year will be
prepared on a basis consistently applied in accordance with standards for
private entities issued by the Malaysian Accounting Standards Board so as
to give a true and fair view of the financial position and of the results
and the cash flows of the Borrower for that relevant financial
year;
|
|
(j)
|
Information:
the information furnished by the Borrower in connection with the
Facilities does not contain any untrue statement or omit to state any fact
the omission of which makes the statements therein, in the light of the
circumstances under which they were made, misleading and all expressions
of expectation, intention, belief and opinion contained therein were
honestly made on reasonable grounds after due and careful enquiry by the
Borrower;
|
|
(k)
|
Disclosure:
the Borrower has fully disclosed in writing to the Lender all facts
relating to the Borrower and the Corporate Guarantor which the Borrower
knows or should reasonably know which are material for disclosure to the
Lender in the context of this Agreement and the Security
Documents;
|
|
(l)
|
Material
Adverse Change: there has been no material adverse change in the
Borrower’s financial condition since the date of application of the
Facilities by the Borrower sufficient to impair the Borrower’s ability to
pay the Total Secured Amounts in accordance with the terms of this
Agreement and the Security Documents;
and
|
|
(m)
|
Title:
the Borrower is the legal and beneficial owner or has title to all its
assets.
|
11.2 Survival:
The representations and warranties in clause 11.1 shall survive the signing and
delivery of this Agreement and the making of each of the utilisation of the
Facilities, except that each reference to the audited financial statements of
the Borrower in clause 11.1(i) shall be construed as a reference to the then
latest available financial statements of the Borrower.
23
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities Agreement
|
|
|
UNDERTAKINGS
|
12.1 Affirmative
Undertakings: The Borrower undertakes with the Lender that, from the date
of this Agreement and for so long as it has any liabilities (be it actual or
contingent) under this Agreement and the Security Documents:-
|
(a)
|
Ranking:
the liabilities of the Borrower under this Agreement will constitute
direct, unconditional and unsubordinated obligations of the Borrower and
will at all times rank at least equally and rateably (pari passu) without any
preference or priority among themselves and at least equally and rateably
(pari passu) in
point of priority with all its other present and future unsecured and
unsubordinated liabilities (both actual and contingent)
except:-
|
|
|
(i)
|
liabilities
which are subject to liens or rights of set off arising in the normal
course of business;
|
|
|
(ii)
|
liabilities
which are preferred solely by applicable laws and not by reason of any
Security Interest; and
|
(iii) liabilities
which have been consented to by the Lender;
|
(b)
|
Preparation
of Accounts: the Borrower will prepare the financial statements
referred to in clauses 12.1(c)(i) and 10.1(c)(ii) below on a basis
consistently applied in accordance with the accounting standards for
private entities issued by the Malaysian Accounting Standards Board so as
to give a true and fair view of the financial positions and of the results
and the cash flows of the Borrower for that relevant financial
year;
|
|
(c)
|
Information:
the Borrower will deliver to the
Lender:
|
|
|
(i)
|
as
soon as they become available (and in any event within one hundred and
twenty (120) days after the end of each of its financial year) a certified
true copy of its audited and (if applicable) consolidated financial
statements for that period which shall contain an income statement and a
balance sheet of the Borrower;
|
|
|
(ii)
|
as
soon as they become available (and in any event within ninety (90) days
after the end of each quarter of its financial year) a certified true copy
of its management account which shall contain an income statement,
unaudited balance sheet and profit and loss
statement;
|
|
|
(iii)
|
promptly,
such additional information and/or documents relating to the Borrower and
the Borrower’s business as the Lender may from time to time reasonably
request as permitted by law and the disclosure of which will not cause the
Borrower to breach any of its confidential
obligations;
|
24
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities Agreement
|
|
(d)
|
Consents:
it will obtain maintain in full force and effect and promptly renew from
time to time, and will promptly deliver to the Lender certified copies of,
any authorisation, approval, consent, licence, exemption, order,
registration, recording, filing or notarisation as may be necessary or
desirable to ensure the validity, enforceability or priority of the
liabilities and obligations of the Borrower or the Corporate Guarantor or
the rights of the Lender under this Agreement and the Security Documents
(other than those authorisations, approvals, consents, licences,
exemptions, registrations, recordings, filings or notarisations which are
required to be obtained by the Lender specifically in connection with the
conduct of its banking business) and the Borrower shall comply and/or
cause to be complied with the terms of the
same;
|
|
(e)
|
Event
of Default: the Borrower will promptly, upon it becoming aware,
give notice in writing to the Lender of the occurrence of an Event of
Default or any other event which could reasonably be expected to have a
material and adverse effect on the Borrower’s ability to perform its
obligations under this Agreement;
|
|
(f)
|
Conduct
of Business: the Borrower will carry out and operate its business
and affairs diligently and in accordance with sound financial and
commercial standards and practices and in accordance with its
constitutional documents;
|
|
(g)
|
Indebtedness:
the Borrower will punctually pay all of its indebtedness whensoever and
wheresoever occurred which are due and
payable;
|
|
(h)
|
Obligations:
the Borrower will duly perform and observe and will cause to be duly
performed and observed all the covenants, conditions, provisions and
obligations contained in this
Agreement;
|
|
(i)
|
Adverse
Changes: the Borrower will, upon it becoming aware, promptly notify
the Lender, of any material event or adverse change in the condition
(financial or otherwise) of the Borrower and/or the Corporate Guarantor
and of any litigation or other proceedings of any nature whatsoever being
threatened or initiated against the Borrower or the Corporate Guarantor
before any court tribunal or administrative agency which may materially
and adversely affect the financial condition of the Borrower or the
Corporate Guarantor or their ability to perform their obligations under
this Agreement and/or in the Security
Documents;
|
|
(j)
|
Licences
and Approvals: the Borrower will obtain all necessary licences and
approvals and comply with all regulations relating to the carrying on of
its business;
|
|
(k)
|
Annual
Return: the Borrower will submit and/or cause to be submitted to
the Lender a certified true copy of the Borrower’s annual return and
return of allotment of shares upon request by the
Lender;
|
|
(l)
|
Changes
in the board of directors: the Borrower will inform the Lender of
any change in its board of
directors;
|
|
(m)
|
Authorised
Signatories: the Borrower will notify the Lender should any of the
Borrower’s authorised signatories as provided by the Borrower to the
Lender pursuant to this Agreement be no longer authorised to sign any
documents or to give notices and communications under or in connection
with this Agreement;
|
25
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities Agreement
|
|
(n)
|
Valuation:
the Borrower will upon reasonable request by the Lender at any time and
from time to time procure or cause to be procured to the Lender a
valuation of the property, assets and undertaking of Borrower, such
valuation to be carried out at its own cost and expense by independent
professional valuers/surveyors acceptable to the Lender in accordance with
the standards and practices for the time being accepted in the relevant
industry and with such other requirements as the Lender may
stipulate;
|
|
(o)
|
Insurances:
the Borrower will:-
|
|
|
(i)
|
insure
the fixed assets and stocks charged to the Lender pursuant to the Said
Debentures for a sum not less than one hundred per centum (100%) of the
net book value of the asset insured with an insurance company acceptable
to the Lender and in such form and substance acceptable to the
Lender, under an All Risk Insurance Policy and additionally such other
risks as we may from time to time
require;
|
|
|
(ii)
|
ensure
that such insurance(s) shall name DBS Bank Ltd as loss payee or
beneficiary, contain a non-cancellation clause and endorse “DBS Bank Ltd”
as chargee; and
|
|
|
(iii)
|
punctually
pay all premiums and deliver the policy(ies), cover notes and receipts to
the Lender before the activation of the Facilities or renewal thereof, the
Lender may (but shall not be obliged to) arrange for insurance cover with
an insurance company as we may deem appropriate from time to time and the
Borrower hereby irrevocably authorise the Lender to debit the Borrower’s
account with the Lender for the premium so
incurred;
|
|
(p)
|
Auditors:
the Borrower will appoint from time to time such reputable auditor or firm
of auditors and authorise such auditor or firm of auditors to supply the
Lender with a certified copy of any communication sent by such auditor to
the Borrower and further to communicate directly with the Lender at any
time in respect of any matter connected with the accounts and operations
of the Borrower;
|
|
(q)
|
Operating
Account: the Borrower will maintain all its material operating
accounts with DBS Bank Ltd, Singapore and/or the Lender and the Borrower
will use its best endeavour to maintain such material operating accounts
to the satisfaction of the Lender, promptly and in any event no later than
six (6) months from the date of this Agreement or such other longer period
as may be agreed between the Borrower and the
Lender;
|
|
(r)
|
Subsidiary:
the Borrower will not do or cause to be done anything that results in the
Corporate Guarantor not holding (directly or indirectly) one hundred per
centum (100%) shareholding in the
Borrower;
|
|
(s)
|
Billing
Entity: the Borrower will remain a key billing entity within the
Group contributing at least sixty per centum (60%) of the Group’s revenue
at any point in time;
|
|
(u)
|
Positive
Networth: the Borrower will maintain a positive
networth.
|
12.2 Negative
Undertakings: The Borrower undertakes with the Lender that, from the date
of this Agreement and for so long as there are monies remaining due or owing or
payable under this Agreement and the Security Documents, the Borrower will not
without the prior written consent of the Lender:-
26
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities
Agreement
|
|
(a)
|
Negative
Pledge: create or permit to exist over all or any part of the
business or assets (fixed or floating, present or future, including but
not limited to any right, interest, receivable and revenue) of the
Borrower any Security Interest save and except for the Security Interest
permitted under clause 12.1(a)
above;
|
|
(b)
|
Constitutional
documents: add to, delete, vary or amend its constitutional
documents relating to the Borrower’s borrowing powers and principal
business activities in any manner which is inconsistent with the terms of
this Agreement;
|
|
(c)
|
Alteration
of Capital: reduce or in
any way whatsoever alter (other than by way of increase), its authorised
and/or issued shares in existence at the date hereof whether by varying
the amount, structure or value thereof or the rights attached thereto or
connected to any of its share capital into stock, or by consolidating,
dividing or sub-dividing all or any of its
shares;
|
|
(d)
|
Change
Nature of Business: substantially alter or otherwise change the
nature or scope of its existing
business;
|
|
(e)
|
Disposal:
save and except in the ordinary course of business and on commercial terms
on the basis of arm’s length transaction, sell, transfer, lease out, lend
or otherwise dispose of or in any way cease to exercise control over,
whether by single transaction or a number of transactions, related or not,
the whole or a substantial part of the Borrower’s
assets;
|
|
(f)
|
Restriction
on Transactions: enter into any transaction with any person, firm
or company save and except in the ordinary course of business, on ordinary
commercial terms and on the basis of arm’s length arrangements, or enter
into any transaction whereby the Borrower might pay more than the ordinary
commercial price for any purchase or might receive less than the full
commercial price for its products save and except in the ordinary course
of business;
|
|
(g)
|
Incur
Indebtedness: incur, assume, guarantee or permit to exist any
indebtedness other than:-
|
|
|
(i)
|
the
indebtedness under the Facilities;
|
|
|
(ii)
|
the
indebtedness which have been disclosed to the Lender prior to the date of
this Agreement;
|
|
(h)
|
Amalgamation,
reconstruction etc: undertake or permit any re-organisation,
amalgamation, reconstruction, take-over or any other schemes of compromise
or arrangement affecting its present
constitution;
|
|
(i)
|
Loans:
make any loans or advance or guarantee or grant any credit to any of its
directors or purchase or otherwise acquire the capital stock, assets or
obligation of any of its
directors;
|
27
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities
Agreement
|
|
(j)
|
Enter
into partnership: save and except in the ordinary course
of business, enter into any partnership, profit-sharing or royalty
agreement or other arrangement of whatsoever nature whereby the Borrower's
income or profits are, or might be, shared with any other person, firm or
company or enter into any management contract or other arrangement of
whatsoever nature whereby the Borrower's business or operations are
managed by any other person, firm or
company.
|
EVENTS OF DEFAULT
|
13.1
|
Events
of Default: If:-
|
|
(a)
|
Non-payment:
the Borrower fails to pay any amount due under this Agreement on the due
dates whether formally demanded or
not;
|
|
(b)
|
Breach
of obligations: the Borrower or the Corporate Guarantor fails to
observe or perform or commits a breach of any of its obligations under
this Agreement or the Security Documents, as the case may be, or under any
undertaking or arrangement entered into in connection therewith, other
than an obligation referred to in clause 13.1(a)
above;
|
|
(c)
|
Misrepresentation:
any representation, warranty or statement which is made (or acknowledged
to have been made) by the Borrower or the Corporate Guarantor in this
Agreement or the Security Documents or which is contained in any
certificate, statement, legal opinion or notice provided or caused to be
provided hereunder or in connection with this Agreement proves to be
incorrect or untrue in any material respect or, if repeated at any time
with reference to the facts and circumstances then existing, would not be
correct and true in any material
respects;
|
|
(d)
|
Invalidity:
at any time it is or will become unlawful for the Borrower or the
Corporate Guarantor to perform or comply with any of its obligations under
this Agreement or the Security Documents, as the case may be, or any
provision of this Agreement or the Security Documents, is or becomes, or
is claimed by the Borrower or the Corporate Guarantor for any reason, to
be invalid or unenforceable;
|
|
(e)
|
Suspension
of business and expropriation: the Borrower or the Corporate
Guarantor changes or threatens to change in any substantial manner the
nature or scope of its business (unless in accordance with clause
12.2(d)), ceases or suspends or threatens to or cease or suspend the
operation of all or a substantial part of its
business;
|
|
(f)
|
Cross
Default: the Borrower or the Corporate Guarantor stops payment in
respect of its obligations generally or if any other debenture of or
monies borrowed by the Borrower or the Corporate Guarantor respectively
becomes repayable by reason of default or any amount owing thereunder or
in respect thereof is not repaid on its due date (or within any applicable
grace period), or any guarantee or indemnity given by the Borrower or the
Corporate Guarantor respectively is not honoured when due and called upon
or if any security for any such debenture, monies borrowed, guarantee or
indemnity becomes enforceable;
|
28
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities
Agreement
|
|
(g)
|
Appointment
of receiver, legal process: an encumbrancer takes possession of, or
a trustee, receiver or similar officer is appointed in respect of, the
whole or substantial part of the business or assets of the Borrower or the
Corporate Guarantor or distress, legal process, sequestration or any form
of execution is levied or enforced upon or instituted against any
substantial part of the assets of the Borrower or the Corporate
Guarantor;
|
|
(h)
|
Inability
to pay debts: the Borrower or the Corporate Guarantor is deemed
unable to pay its debts within the meaning of Section 218(2) of the
Companies Xxx 0000 or by reason of financial difficulties, stops,
suspends, or threatens to stop or suspend, making payments with respect to
all or a material part of its
debts;
|
|
(i)
|
Winding-up:
any bona fide step is taken by any person with a view to the bankruptcy,
liquidation, winding up or dissolution of the Borrower or the Corporate
Guarantor (other than for the purpose of undertaking a solvent
reconstruction of the Borrower or the Corporate Guarantor with the consent
of the Lender);
|
|
(j)
|
Arrangement
with creditors: the Borrower or the Corporate Guarantor convenes a
meeting of its creditors or proposes or makes any arrangement or
composition with, or any assignment for the benefit of, its creditors or a
petition is presented or a meeting is convened for the purpose of
considering a resolution or other steps are taken for making an
administration order against or for winding up, dissolution,
administration or reorganisation of the Borrower or the Corporate
Guarantor (other than for the purposes of and followed by a reconstruction
approved by the Lender);
|
|
(k)
|
Analogous
events: anything analogous to any of the events set out in clause
13.1(g), (h), (i) and (j) above occurs under any applicable
jurisdiction;
|
|
(l)
|
Judgment
Passed: the Borrower or the Corporate Guarantor shall fail to
satisfy any judgment passed against it by any Court of competent
jurisdiction;
|
|
(m)
|
Disposal
of assets: the Borrower or the Corporate Guarantor
transfers or disposes of substantial part or the whole of its business or
assets save and except in the ordinary course of business and on ordinary
commercial terms on the basis of arm’s length
transaction;
|
|
(n)
|
Cessation
of business: the Borrower or the Corporate Guarantor
changes or threatens to change the nature or scope of its business,
suspends or threatens to suspend a substantial part of the present
business operations which it now conducts directly or
indirectly;
|
|
(o)
|
Insolvency: the
Borrower or the Corporate Guarantor is deemed unable to pay its debts or
becomes unable to pay its debts as they fall due or suspends or threatens
to suspend making payments (whether of principal or interest) with respect
to all or any class of its debts;
|
|
(p)
|
Jeopardy: any
security created in any of the Security Documents or otherwise is in
jeopardy;
|
|
(q)
|
Material
Adverse Change: in the opinion of the Lender, there
should occur any material adverse change in the financial condition of the
Borrower and/or the Corporate Guarantor which would affect the Borrower’s
and/or the Corporate Guarantor’s ability to perform its obligations under
this Agreement and the Security
Documents;
|
29
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities
Agreement
|
|
(r)
|
Nationalisation:
all or a substantial part of the assets or share capital of the Borrower
or the Corporate Guarantor are seized, nationalised, expropriated or
compulsorily acquired by or under the authority of any governmental body
or other authority;
|
|
(s)
|
Moratorium:
the Borrower or the Corporate Guarantor begins negotiations or takes any
proceedings or other steps with a view of rescheduling, readjusting or
deferring all or a material part of its indebtedness or a moratorium
(including but not limited to a scheme of arrangement under Section 176 of
the Companies Act, 1965) is agreed or declared by a court of competent
jurisdiction in respect of or affecting any part of its indebtedness or
for the suspension of payments of its indebtedness
generally;
|
|
(t)
|
Licence:
any authorisations, licence, approval, consent, order or exemption which
is required for the Borrower or the Corporate Guarantor to carry on its
business is withheld withdrawn revoked modified or terminated or has
expired and not renewed;
|
|
(u)
|
Repudiation:
the Borrower or the Corporate Guarantor repudiates this Agreement or the
Security Documents, as the case may be;
or
|
|
(v)
|
Event
or Events: any event or change or series of events or changes
occurs which, in the Lender’s opinion could be expected to have a material
and adverse effect on the ability of the Borrower or the Corporate
Guarantor to perform its obligations under this Agreement or the Security
Documents, as the case may be,
|
then, and
in any such case and at any time thereafter the Lender may, by written notice to
the Borrower declare that the Total Secured Amounts to be immediately due and
payable whereupon:-
|
(i)
|
the
Total Secured Amounts shall become so due and
payable;
|
|
(ii)
|
any
part of the Facilities which has not been drawndown, utilised or
cancelled, shall be cancelled;
|
|
(iii)
|
this
Agreement and the Security Documents shall immediately become enforceable;
and
|
|
(iv)
|
any
sum repaid to the Lender by the Borrower shall be applied at the Lender’s
sole discretion towards the settlement and discharge of the Borrower’s
liabilities and obligations under this
Agreement.
|
13.2 Concurrent
Proceedings: Notwithstanding any provision hereof, it is hereby expressly
agreed that upon the occurrence of an Event of Default, the Lender shall have
vested in it the right to exercise all or any of the remedies available whether
by this Agreement or by statute or otherwise and upon the declaration of an
Event of Default, the Lender shall be entitled to exercise such remedies
concurrently to recover all monies due and owing to the Lender.
13.3 Enforcement
of security: After the security created by the Security Documents becomes
enforceable pursuant to clause 13.1, the Lender shall be entitled, but not
obligated, to enforce the same.
30
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities
Agreement
|
13.4 Deficiency
in Proceeds of Sale: If the amount realised by the Lender on a sale or
application of the properties and assets deposited with the Lender after
deduction and payment from the proceeds of such sale of all fees, dues, costs,
rates, taxes and other outgoings thereon is less than the amount due to the
Lender and whether at such sale the Lender is the purchaser thereof or
otherwise, the Borrower shall pay to the Lender the difference between the
amount due and the amount so realised and until payment will also pay interest
on such balance at the rate specified in accordance to the terms and condition
of this Agreement.
INDEMNITY
14.1 Indemnity:
The Borrower shall fully indemnify the Lender from and against any expense,
loss, damage or liability (as to the amount of which the certificate of the
Lender shall, in the absence of manifest error, be conclusive) which the Lender
may reasonably incur under or in connection with this Agreement and the Security
Documents as a result of the occurrence of any Event of Default. Without
prejudice to its generality, the foregoing indemnity shall extend to any
interest, commission, fees or other amounts whatsoever paid or payable on
account of any funds borrowed in order to carry any unpaid amount and to any
loss (including loss of profit), premium, penalty or expense which may be
incurred in liquidating or employing deposits from third parties required to
make, maintain or fund the Facilities (or any part of it) or any other amount
due or to become due under this Agreement to the extent not otherwise
compensated under any other provisions in this Agreement.
14.2 Currency
Indemnity:
|
(a)
|
If
any sum due from the Borrower under this Agreement or any order or
judgment given or made in relation hereto has to be converted from the
currency (“first
currency”) in which the same is payable hereunder or under such
order or judgment into another currency (“second currency”) for
the purpose of (i) making or filing a claim or proof against the Borrower,
(ii) obtaining an order or judgment in any court or other tribunal or
(iii) enforcing any order or judgment given or made in relation hereto,
the Borrower shall, subject to the Borrower receiving a certificate from
the Lender showing the calculations (in reasonable detail) of such costs
and expenses together with other relevant documentary evidence, indemnify
and hold harmless the Lender to whom such sum is due from and against any
loss suffered as a result of any discrepancy between (1) the rate of
exchange used for such purpose to convert the sum in question from the
first currency into the second currency and (2) the rate or rates of
exchange at which the Lender may in their ordinary course of business
purchase the first currency with the second currency upon receipt of a sum
paid to them in satisfaction, in whole or in part, of any such order,
judgment, claim or proof.
|
|
(b)
|
In
the event of the winding up of the Borrower at any time while any amounts
or damages owing to the Lender or under an order rendered in respect
thereof shall remain outstanding the Borrower shall indemnify and hold the
Lender harmless against any deficiency arising or resulting from any
variation in rates of exchange
between:
|
31
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities
Agreement
|
|
|
(i)
|
the
date as of which the equivalent in any currency (other than US Dollar) of
the amount in US Dollar due or to become due hereunder (other than under
this sub-clause), or under any order into which the relevant obligations
in this Agreement shall have been merged, is calculated for the purposes
of such winding-up; and
|
|
|
(ii)
|
the
final date or dates for the filing of proofs of claim in such winding-up.
For the purposes of this sub-clause, the final date or dates for the
filing of proofs in a winding-up of the debtor shall be the date fixed by
the liquidator or otherwise applicable under the relevant provisions of
law as being the latest practicable date as at which liabilities of the
Borrower may be ascertained for such winding-up prior to the payment by
the liquidator in respect thereof.
|
|
(c)
|
The
above indemnities shall constitute separate and independent obligations of
the Borrower from its other obligations under this Agreement and shall not
in any way prejudice or affect or be prejudiced or affected
by:-
|
|
|
(i)
|
any
collateral or other security now or hereafter held by the Lender for all
or any part of the obligations and payments hereby indemnified;
and
|
|
|
(ii)
|
any
right of subrogation, lien or security to which the Lender may be
otherwise entitled.
|
Any such
deficiency as aforesaid shall be deemed to constitute a loss suffered by the
Borrower and no proof or evidence of any actual loss shall be required by the
Borrower or its liquidator. In the case of clause 14.2(b), the amount of such
deficiency shall not be deemed to be reduced by any variation in rates of
exchange occurring between the said final date or dates for the filing of proofs
distribution.
14.3 Indemnity
for acting on facsimile instructions:
|
(a)
|
The
Borrower hereby authorises the Lender to accept and act on all facsimile
instructions on all matters pertaining to the Facilities provided that in
each and every case the facsimile instruction (i) bears the facsimile
signature of the duly authorised signatory(ies) of the
Borrower and (ii) is legible and
complete.
|
|
(b)
|
The
Borrower undertakes to mail to the Lender or deliver to its branch office
in Kuala Lumpur, the original transaction instructions in writing duly
signed by the authorised signatory(ies) within three (3) Business Days
from the date of the facsimile instructions issued to the Lender or such
longer period as agreed by the Lender. Failure to comply as
aforesaid shall not constitute a revocation of the authorisation,
indemnity or in any way affect any waiver contained in the indemnity
herein contained.
|
|
(c)
|
The
Lender shall not be liable for any loss or liability whatsoever arising
out of or in connection with the Lender acting in accordance with such
authorisation or taking instructions from the Borrower and/or the
Borrower’s authorised signatory(ies) provided that the Lender has acted in
good faith on the belief that such facsimile instructions are genuine and
validly issued by the Borrower or any delay or failure in any transmission
or communication facilities regardless of the circumstances prevailing at
the time of such instruction provided that such delay or failure was not
caused by or due to the acts and/or omissions of the
Lender.
|
32
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities
Agreement
|
|
(d)
|
No
cancellations or amendments may be made by the Borrower in respect of any
facsimile instructions if the Lender has already acted on such facsimile
instructions.
|
|
(e)
|
The
Borrower hereby agrees and undertakes to indemnify the Lender, its
successors in title and assigns and at all times to keep the Lender, fully
and completely indemnified from and against any loss, damage, cost,
expense, liability, action, proceedings, demands or claims suffered or
incurred or sustained by the Lender as a result of the Lender having acted
in good faith on the facsimile instructions duly authorised by the
Borrower’s authorised signatory(ies). The Borrower shall not be liable to
indemnify the Lender for any loss, damage, cost, expense, liability,
action, proceedings, demands or claims which the Lender may incur or
suffer as a result of the Lender’s own negligence, wilful misconduct,
fraud or breach.
|
PAYMENTS
15.1 By the
Borrower: All payments to be made by the Borrower hereunder for the
account of the Lender, shall be made in US Dollar in same day funds not later
than 11.00 am (Labuan time) on the relevant day to the Lender’s account as the
Lender may have notified to the Borrower.
15.2 Taxes:
The Borrower will pay all goods and services tax and all other similar levies
and taxes (if any) now or hereafter imposed by any laws of Malaysia on any
payment under this Agreement and indemnify the Lender against such payment. The
Lender shall have the right to, with prior notice in writing to the Borrower,
debit the same from the Borrower’s account(s) if the Borrower defaults in making
such payments.
15.3 Withholdings:
All payments by the Borrower under this Agreement, whether in respect of
principal, interest, commission, fees or any other amount, shall be made in full
without any deduction or withholding (whether in respect of set off,
counterclaim, duties, taxes, charges or otherwise whatsoever) unless the
deduction or withholding is required by law, in which event the Borrower
shall:
|
(a)
|
ensure
that the deduction or withholding does not exceed the minimum amount
legally required;
|
|
(b)
|
forthwith
pay to the Lender such additional amount so that the net amount received
by the Lender will equal the full amount which would have been received by
it had no such deduction or withholding been
made;
|
|
(c)
|
pay
to the relevant taxation or other authorities within the period for
payment permitted by applicable law the full amount of the deduction or
withholding (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
clause);
|
33
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities
Agreement
|
|
(d)
|
furnish
to the Lender, within the period for payment permitted by applicable law,
either:
|
|
|
(i)
|
a
copy of the official receipt of the relevant taxation authorities in
respect of all amounts so deducted or withheld as aforesaid;
or
|
|
|
(ii)
|
if
such receipts are not issued by the relevant taxation authorities on
payments to them of amounts so deducted or withheld, a copy of the
certificate of deduction or equivalent evidence of the relevant deduction
or withholding,
|
Provided
That the Lender shall have furnished to the Borrower a certificate setting forth
the computation of such additional amounts required to be paid by the Borrower
in reasonable detail and supported by relevant documentary
evidence.
15.4 Date:
If any payment would otherwise be due on a day which is not a Business Day it
shall be due on the next succeeding Business Day or, if that Business Day falls
in the following month, the preceding Business Day.
SET OFF
16.1 Set-Off:
Following the declaration of an Event of Default under clause 13.1, the Lender
may without notice to the Borrower combine, consolidate or merge all or any of
the Borrower’s accounts with, and liabilities to, the Lender and may set off
transfer or apply any sum standing to the credit of any such accounts in or
towards the satisfaction of any of the Borrower’s liabilities to the Lender
under this Agreement, and may do so notwithstanding that the obligation of the
Borrower or the Lender are primary or collateral, booked or payable at different
branches (including branches outside Malaysia), or the balances on such accounts
and the liabilities may not be expressed in the same currency and the Lender is
hereby authorised to effect any necessary conversions at the then prevailing
spot buying rate quoted by or available to the Lender. If the amount of an
obligation is unascertained, the Lender may estimate that amount and set-off or
debit based on the estimated amount subject to a final settlement being made
between the Borrower and the Lender when the amount of the obligation is
ascertained. The foregoing shall be without prejudice and in addition
to any rights of set-off, combination of accounts, lien, security or other right
to which the Lender is at any time otherwise entitled to (whether by operation
of law, contract or otherwise).
DISTRIBUTION OF PROCEEDS
17.1 Distribution
of Proceeds: Upon enforcement of this Agreement, all monies and other
property held or received by the Lender under this Agreement shall (subject to
the payment of debts which by law have priority) be applied in the following
manner:-
34
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities
Agreement
|
|
(a)
|
first,
in payment of all documented costs, charges, expenses and liabilities
incurred by the Lender and every agent, delegate or other person appointed
by the Lender under this Agreement or in the enforcement of this Agreement
or in the performance of any duties or the exercise of any powers vested
in it or him under this Agreement;
|
|
(b)
|
second,
in or towards payment of the liabilities of the Borrower in respect of the
Total Secured Amounts (other than principal and any interest thereon) due
to the Lender;
|
|
(c)
|
third,
in or towards payment of all interest (including interest on overdue
interest) which has accrued on the Total Secured Amounts to the date of
such application; and
|
|
(d)
|
fourth,
in or towards payment of the principal amount of the Facilities due to the
Lender,
|
and the
surplus (if any) after the payment in full of all liabilities of the Borrower
under this Agreement shall be paid to or to the order of the Borrower or such
other person for the time being
entitled thereto, PROVIDED ALWAYS THAT if any sum
paid or recovered in respect of
the liabilities of the Borrower under this Agreement is less than the Total
Secured Amounts then due, the Lender may apply that sum to principal, interest,
fees or any other amount due under this Agreement in such proportions and order
and generally in such manner as instructed by the Lender.
FEES AND
EXPENSES
18.1 Expenses:
The Borrower shall on demand pay to the Lender on a full indemnity
basis:
|
(a)
|
all
costs and expenses (including legal fees, on a solicitor and client basis,
and out-of-pocket expenses) whether on a abortive basis or otherwise
reasonably incurred in connection with the negotiation, preparation,
execution and perfection of this Agreement, the Security Documents and any
related documents; and
|
|
(b)
|
all
costs and expenses (including legal fees, on a solicitor and client basis,
and out-of-pocket expenses) incurred in connection with the preservation
or enforcement or attempted preservation or enforcement of any of rights
of the Lender under this Agreement, the Security Documents or any related
documents.
|
All such
payments shall be made in the currencies in which such costs and expenses have
been incurred. If the Lender in its discretion pays any legal fees, stamp duty,
governmental or statutory levies and taxes and other costs, expenses or other
moneys whatsoever which the Borrower is required but fails to pay under this
Agreement, then on default of such payment by the Borrower, the Borrower shall
(subject to it receiving a certificate from the Lender showing the calculations
(in reasonable detail) of such costs and expenses together with other relevant
documentary evidence), repay the same to the Lender, within ten (10) days of
receipt of such certificate, together with interest thereon at the rate(s)
referred herein calculated from the date of payment thereof by the Lender up to
the date of repayment by the Borrower.
35
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities
Agreement
|
18.2 Stamp
duty: The Borrower shall pay any stamp, documentary and other similar
duties and taxes (if any) to which this Agreement or any related documents may
be subject or give rise and shall fully indemnify the Lender from and against
any expense, damage, loss or liability which it may incur as a result of any
delay or omission by the Borrower to pay any such duties.
MISCELLANEOUS
19.1 Evidence
of indebtedness: In any proceedings relating to this Agreement a
statement as to any amount due to the Lender under this Agreement which is
certified as being correct by an officer of the Lender duly authorised for that
purpose, shall, unless otherwise provided in this Agreement, save for manifest
error, be final and conclusive and binding on the Borrower. The entries in the
accounts which the Lender maintains in accordance with its usual practice shall
be prima facie evidence of the existence and amounts of the obligations of the
Borrower recorded in them.
19.2 Right to
Debit: The Borrower irrevocably authorises the Lender to debit its
accounts with the Lender (whether in Malaysia or elsewhere) as the Lender deems
fit, in the event of any occurrence of an Event of Default and without any
further notice to the Borrower for the payment of the Total Secured Amounts and
any other amounts owing to the Lender.
19.3 Reconstruction
of Borrower and Lender: The liabilities and/or obligations created by
this Agreement shall continue to be valid and binding for all purposes
whatsoever notwithstanding any change by amalgamation, reconstruction or
otherwise which may be made in the constitution of the Lender and similarly the
liabilities and/or obligations created by this Agreement continue to be valid
and binding for all purposes whatsoever notwithstanding any liquidation
(compulsory or voluntary) affecting the Borrower or any change by amalgamation,
reconstruction or otherwise howsoever in the constitution of the Borrower, and
it is expressly declared that no change of any sort whatsoever in relation to or
affecting the Borrower shall in any way affect the liabilities and/or
obligations created hereunder in relation to any transaction whatsoever whether
past present and future.
19.4 Rights
cumulative, waivers: The rights of the Lender under this Agreement are
cumulative, and may be exercised as often as it considers appropriate and are in
addition to its rights under any applicable law. The rights of the Lender in
relation to the Facilities and/or the Total Secured Amounts (whether arising
under this Agreement or under any applicable law) shall not be capable of being
waived or varied otherwise than by an express waiver or variation in writing;
and in particular any failure to exercise or any delay in exercising any of such
rights shall not operate as a waiver or variation of that or any other such
right; any defective or partial exercise of any of such rights shall not
preclude any other or further exercise of that or any other such right; and no
act or course of conduct or negotiation on its part or on its behalf shall in
any way preclude them from exercising any such right or constitute a suspension
or any variation of any such right.
19.5 Time:
Time shall be of the essence of this Agreement.
19.6 Notices:
Any notice or communication under or in connection with this Agreement shall be
in writing and shall be delivered personally, or by post, or facsimile (followed
by post) addressed to the respective parties given in this Agreement or at such
other address as the recipient may have notified to the other parties hereto in
writing. Proof of posting or despatch of any notice or communication to any
party to this Agreement shall be deemed to be proof of receipt:
36
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities
Agreement
|
|
(a)
|
if
personally delivered, at the time of
delivery;
|
|
(b)
|
in
the case of posting, on the fifth (5th)
day after posting; and
|
|
(c)
|
in
the case of facsimile transmission, at the time the transmission report is
received by the sender which purports to confirm that the addressee has
received such facsimile in full and without
error.
|
The
following are the respective addresses and facsimile numbers of the parties
hereto:-
THE
BORROWER
KULICKE
& XXXXX GLOBAL HOLDING CORPORATION
(Company
No. LL05002)
Xxxx 000 Xxxxx 0 Xxxxxx
0
Xx. 0, Xxxxx XX 21/37
Xxxxxxxxx Xxxxx
00000 Petaling Jaya
Selangor
Attention :
Director
Facsimile
No. : 00-0000 0000
THE
LENDER
DBS
BANK LTD, LABUAN BRANCH
Level
10(A) Main Office Tower
Financial
Park Labuan, Jalan Merdeka
87000
Federal Territory of Labuan
Attention :
Credit Control Department (Xx Xxxx Xxx Tai)
Facsimile
No. : 000-000
000
|
19.7
|
Service
of Legal Process:
|
|
(a)
|
The
service of any Legal Process may be given by prepaid registered or
ordinary post sent to the Address for Service of the respective recipient
thereof and such Legal Process shall be deemed to have been duly served
after the expiration of five (5) days from the date it is
posted.
|
|
(b)
|
No
change in the Address for Service howsoever brought about shall be
effective or binding on either party unless that party has given to the
other actual notice of the change of Address for Service and nothing done
in reliance on clause 19.8(a) shall be affected or prejudiced by any
subsequent change in the Addresses for Service over which the other party
has no actual knowledge of at the time the act or thing was done or
carried out.
|
37
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities
Agreement
|
19.8 Invalidity
of any provision: If any of the provisions of this Agreement becomes
invalid, illegal or unenforceable in any respect under any law, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired and the remaining provisions of this Agreement shall be
construed as if such invalid, illegal or unenforceable provisions or part
thereof had never been contained in this Agreement.
19.9 Governing
Law: This Agreement is governed by, and shall be construed in accordance
with, the laws of Malaysia. The parties hereby irrevocably and unconditionally
submit to the non-exclusive jurisdiction of the Malaysian courts to hear and
determine suit, action or proceeding, and to settle any dispute which may arise
out of or in connection with this Agreement, waives any objection which the
Borrower may have at any time to such courts being nominated as the forum to
hear and determine any proceedings and agrees not to claim that any court is not
a convenient or appropriate forum. Nothing in this clause 19.10 shall limit the
right of the Lender to take proceedings against the Borrower in any other court
of competent jurisdiction nor shall the taking of proceedings in one or more
jurisdictions preclude the Lender from taking proceedings in any other
jurisdiction, whether concurrently or not.
19.10 Modification
and Indulgence: The Lender may at any time without in any way affecting
this Agreement:-
|
(a)
|
grant
to the Borrower or to any surety any time or indulgence;
and/or
|
|
(b)
|
renew
any xxxx, notes or other negotiable securities;
and/or
|
|
(c)
|
deal
with, exchange, release or modify or abstain from perfecting or enforcing
any securities or other guarantees or rights it may now or at any time
hereafter or from time to time have from or against the Borrower or any
other person; and/or
|
|
(d)
|
compound
with the Borrower or any other
person.
|
19.11 Variation
of Terms: It is hereby expressly agreed and declared by the parties
hereto that notwithstanding any of the provisions of this Agreement to the
contrary, the provisions and terms of this Agreement may at any time and from
time to time be mutually varied or amended by the parties hereto by means of a
mutual exchange of letters or such other means as the parties may agree from
time to time whereupon such amendments and variations shall be deemed to have
been amended or varied accordingly and shall be read and construed as if such
amendments and variations have been incorporated in and had formed part of this
Agreement at the time of execution hereof.
19.12 Disclosure
of Information: The Borrower hereby agrees and permits the Lender its
officers and agents for as long as the Facilities shall subsist and any monies
shall be due and remain outstanding under this Agreement, to disclose any
information relating to the Facilities to:-
|
(i)
|
any
person to whom such disclosure is required under any law or pursuant to
any court order;
|
38
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities
Agreement
|
|
(ii)
|
any
person in connection with a transfer or proposed transfer. For the
purposes of this sub-clause, “transfer” includes any assignment or
transfer of any of the Lender’s rights or obligations, any participation,
sub-participation, transfer of credit or other risk (entirely or in part)
or benefit (entirely or in part) by any means, and entry into any other
contractual relationship, in relation to the
Facilities;
|
|
(iii)
|
any
person for the purposes of enforcing or protecting its rights or interests
in relation to the Facilities;
|
|
(iv)
|
any
person in connection with any insolvency proceeding (including judicial
management, winding-up, compromise or arrangement, and receivership)
relating to the Borrower;
|
|
(v)
|
the
Collector of Stamp Duties and any other government department, agency or
statutory board if it is, the Lender’s opinion, necessary in connection
with the Facilities; and
|
|
(vi)
|
to
any companies within the Lender’s group of companies (i.e. DBS Group
Holdings Ltd and its subsidiaries, direct or indirect) in connection with
the promotion of financial products and services offered by any such
companies.
|
19.13 Assignment:
The Lender may transfer or assign all or part of its rights, benefits and/or
obligations under this Agreement to one or more financial institution(s)
licensed under the Labuan Financial Services and Securities Xxx 0000 or to its
affiliates, and:-
|
(a)
|
for
such purposes may disclose to a potential assignee or transferee who
derives or may derive rights or obligations under or by reference to this
Agreement such information about the Borrower as shall have been made
available to the Lender generally in accordance with clause
19.13;
|
|
(b)
|
where
the Lender transfers its obligations or any part thereof, the Borrower
shall execute such documents as are reasonably necessary to release the
Lender to the extent of the transfer and join the transferee as a party
hereto; and
|
|
(c)
|
where
the Lender transfers all its obligations and rights hereunder the Borrower
shall thereafter deal solely with the transferee with respect to payments,
notices and other matters relating to the administration of this
Agreement.
|
The
Borrower shall not assign or transfer any rights or obligations under this
Agreement. The Lender will promptly notify the Borrower of any transfer or
assignment made under this clause 19.14.
19.14 Force
Majeure: The Facilities may at any time be terminated by the Lender if it
can reasonably shown there has been a material adverse change in the local,
national or international financial, political or economic conditions or
currency exchange controls as would reasonably be likely to materially prejudice
the obligations of the Borrower under the Facilities.
19.15 Immunity:
Neither the Borrower nor any of its subsidiaries or any of the assets of the
Borrower or the subsidiaries has any right to immunity in any jurisdiction or
court from any set off, legal proceedings, attachment prior judgment or other
legal process on the grounds of sovereignty or otherwise, and to the extent that
the Borrower or any of its subsidiaries may acquire such right to immunity, the
Borrower hereby irrevocably waives such right to immunity.
39
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities
Agreement
|
19.16 Labuan
Financial Services Authority: The Facilities shall be at all times
governed by such rules, regulations and/or directives (whether or not having the
force of law) required of or imposed upon the Lender from time to time and at
any time by the Labuan Financial Services Authority or any authority having
jurisdiction over the Lender in Malaysia.
19.17 English
Language: All notices or communication under or in connection with this
Agreement shall be in the English Language or if in any other language,
accompanied by a translation in English. In the event of any conflict between
the English text and the text in any other language, the English text shall
prevail.
19.18 Successors
Bound: This Agreement shall be binding upon and enure for the benefit of
the Lender and the Borrower and their respective successors.
19.19 Compliance
with the Labuan Financial Services and Securities Xxx 0000: The Borrower
hereby declares that all financial and other information provided by the
Borrower to the Lender is true and correct as at the date on which they are made
and/or provided having regard to the facts and circumstances then existing and
does not contravene the Labuan Financial Services and Securities Xxx 0000 (to
the extent required to be complied with by the Borrower).
19.20 Incorporation
of Letter of Offer and Standard Terms and Conditions: The Letter of Offer
and the Standard Terms and Conditions shall be taken read and be construed as an
essential part of this Agreement. In the event of any inconsistency or
discrepancy between the Letter of Offer, the Standard Terms and Conditions and
this Agreement, the provisions of this Agreement shall prevail.
19.20 Counterparts:
This Agreement may be executed in any number of counterparts in which case this
Agreement will be as effective as if all signatories on the counterparts were on
a single copy of this Agreement.
19.21 Stamping:
It is hereby agreed and declared that this Agreement and the Security Documents
are instruments employed in one transaction to secure the sum of US Dollar
Twenty Million (USD20,000,000.00) for principal only and interest thereon within
the meaning of Section 4(3) of the Xxxxx Xxx 0000 of the States of Malaya, and
this Agreement is exempted from the stamp duty pursuant to the provisions of the
Stamp Duty (Exemption) Order 2000.
40
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities
Agreement
|
IN WITNESS WHEREOF the parties have
hereto set their respective seals and hands the day and year first
abovewritten.
|
The
execution of this Agreement by
|
)
|
|
KULICKE
& XXXXX GLOBAL
|
)
|
|
HOLDING
CORPORATION
|
)
|
|
(Company
No. LL05002) was duly effected
|
)
|
|
in
a manner authorised by its Articles of
|
)
|
|
Association
under the Seal of
|
)
|
|
KULICKE
& XXXXX GLOBAL
|
)
|
|
HOLDING
CORPORATION
|
)
|
|
(Company
No. LL05002)
|
)
|
|
which
said Seal was hereunto duly affixed
|
)
|
|
in
the presence of:-
|
)
|
|
/s/ XXXXXXX BIN
XXXXXX@XXXXX
|
/s/ XXXXXXX BIN
OTHMAN@XXXXX
|
|||
|
Director
|
Director
|
|||
|
XXXXXXX
BIN OTHMAN@XXXXX
|
XXXXXXX
BIN XXXXXX@XXXXX
|
|||
|
NRIC
NO: 780630-12-5191
|
NRIC
NO: 780630-12-5191
|
THE
LENDER
|
SIGNED
by Xxxxxxx Xxxx
|
)
DBS BANK LTD, LABUAN
BRANCH
|
|
)
(Licensed Labuan Bank 940031C)
|
|
|
as
Attorney for and on behalf of
|
)
By its Attorneys
|
|
DBS
BANK LTD, LABUAN BRANCH
|
)
|
|
(Licensed
Labuan Bank 940031C)
|
)
|
|
in
the presence of:-
|
)
|
|
/s/
Xxxxxxx Xxxx
|
|
|
/s/
Xxxxxx Xxxx Kong Xxx
|
General
Manager
|
|
VICE
PRESIDENT
|
Country
Head
|
|
DBS
Bank Ltd, Labuan Branch,
Malaysia
|
41
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities
Agreement
|
SCHEDULE
1
Conditions
Precedent
|
1.
|
The
Letter of Offer has been duly accepted by the
Borrower.
|
|
2.
|
This
Agreement and the Security Documents have been duly executed by the
parties thereto and endorsed as exempted from stamp duty pursuant to the
provisions of the Stamp Duty (Exemption) Order
2000.
|
|
3.
|
A
certificate signed by a director of the Borrower substantially in the form
set out in Part I of Schedule 2 and the documents therein referred
to.
|
|
4.
|
A
certified signed by a director of the Corporate Guarantor substantially in
the form set out in Part II of Schedule 2 and the documents therein
referred to.
|
|
5.
|
A
certificate of incumbency and true signature of the officer executing the
Corporate Guarantor, signed by the secretary or assistant secretary of the
Corporate Guarantor (if
applicable).
|
|
6.
|
Evidence
that the Form 18 (as prescribed under the Labuan Financial Services and
Securities Act 2010) in respect of the charge created by this Agreement
and the Said Debentures for the purpose of registration of such charge
with the Labuan Financial Services Authority (“Labuan Registrar”) in
accordance with Section 84 of the Labuan Companies Xxx 0000, has been duly
lodged with the Labuan Registrar and that, immediately prior to the
lodgement of such Form 18, a search conducted revealed that there are no
other charges that have been registered in the Labuan Registrar which
would adversely affect the interest of the
Lender.
|
|
7.
|
Winding
up search conducted on the Borrower wherein the Director General of
Insolvency confirms that no winding up order has been made against the
Borrower. In the event the winding up search results on the Borrower is
not available to the Lender, the relevant statutory declaration in the
form prescribed by the Lender shall have been signed by a director of the
Borrower declaring that the Borrower is not wound up and that no winding
up petition has been presented against the Corporate
Guarantor.
|
|
8.
|
The
Malaysia Debenture shall have been presented to the High Court of Malaya
for the registration of the power of attorney therein
contained.
|
|
9.
|
Documentary
evidence that the Corporate Guarantor has appointed a process agent in
Malaysia to receive service of
process.
|
|
10.
|
The
Borrower shall have delivered to the Lender the insurance policy(ies),
cover notes & premium receipts from insurers acceptable to the Lender
covering all assets charged to the Lender pursuant to the Said Debentures
and in accordance with such conditions as mentioned in clause 12.1(q)
hereof.
|
42
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities
Agreement
|
|
11.
|
The
Borrower shall have delivered to the Lender certified copies of any
consents, licenses, approvals or authorisations of any governmental or
supervising authority bureau, agency or institution required in connection
with the Facilities or otherwise in connection with the matters
contemplated by this Agreement.
|
|
12.
|
A
legal opinion in form and substance acceptable to the Lender from
Pennsylvania, United State of America counsel in respect of the legality,
validity and enforceability of the Corporate Guarantee in Pennsylvania,
United States of America.
|
|
13.
|
A
legal opinion in form and substance acceptable to the Lender from
Singapore counsel in respect of the legality, validity and enforceability
of the Singapore Debenture in
Singapore.
|
|
14.
|
A
legal opinion in form and substance acceptable to the Lender from Messrs
Albar & Partners in respect of the legality, validity and
enforceability of this Agreement and the Malaysia
Debenture.
|
|
15.
|
All
fees due and payable to the Lender under this Agreement shall have been
settled in full by the Borrower.
|
|
16.
|
Written
confirmation by Messrs Albar & Partners that the conditions precedent
contained in Schedule 1 have been complied
with.
|
43
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities
Agreement
|
SCHEDULE
2
Certificate
Part I
(to be
given by the Borrower)
referred
to in paragraph 3 of Schedule 1
(Letterhead
of the Borrower)
To: DBS BANK LTD, LABUAN
BRANCH
I, [name]
a director of KULICKE &
XXXXX GLOBAL HOLDING CORPORATION (Company No. LL05002) (the “Borrower”) of [address],
HEREBY CERTIFY that:
|
(a)
|
attached
hereto, marked “A”, are true, correct and up to date copies latest
Memorandum and Articles of Association, Forms 14, 20 and 22 of the
Borrower;
|
|
(b)
|
attached
hereto, marked “B”, is a true and correct copy of the resolution duly
passed by the board of directors of the Borrower duly convened and held on
* 2010:
|
|
|
(i)
|
approving
and accepting a short term loan facility of up to US Dollar Twelve Million
(USD12,000,000.00) only and a revolving credit facility of up to US Dollar
Eight Million (USD8,000,000.00) (collectively the “Facilities”) pursuant
to an agreement (“Facilities Agreement”)
dated * 2010
between (1) the Borrower, and (2) DBS BANK LTD, LABUAN BRANCH (as
Lender);
|
|
|
(ii)
|
authorising
the execution, delivery and performance of the Facilities Agreement and
such other documents relating to the Facilities (including but not limited
to the Security Documents (as defined in Facilities Agreement)) and where
required the affixation of its common seal thereto in accordance with its
Memorandum and Articles of
Association,
|
and such
resolutions have not been amended, modified or revoked and are in full force and
effect;
|
(c)
|
attached
hereto, marked “C”, is the list of signatories of all the authorised
signatories of the Borrower and their respective specimen signatures, any
one (1) of whom has been authorised to give notices and communications
under or in connection with the Facilities
Agreement.
|
|
Signed:
|
|
|
Director
|
Date:
44
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities
Agreement
|
I,
[name], a director of KULICKE
& XXXXX GLOBAL HOLDING CORPORATION (Company No. LL05002) (the
“Borrower”) hereby certify that [name of director giving above certificate] is a
duly appointed director of the Borrower and that the signature above is his/her
signature.
|
Signed:
|
|
|
Director
|
Date:
45
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities
Agreement
|
Part II
(to be
given by the Corporate Guarantor)
referred
to in paragraph of Schedule 5 of Schedule 1
(Letterhead
of the Corporate Guarantor)
To: DBS BANK LTD, LABUAN
BRANCH
I, [name]
a director of KULICKE &
XXXXX INDUSTRIES, INC (Company No. **) (the “Corporate Guarantor”) of
[address], HEREBY CERTIFY that:
|
(a)
|
attached
hereto, marked “A”, are true, correct and up to date copies of the
constitutional documents of the Corporate
Guarantor;
|
|
(b)
|
attached
hereto, marked “B”, is a true and correct copy of the resolution duly
passed by the board of directors of the Corporate Guarantor duly convened
and held on
* 2010:
|
|
|
(i)
|
approving
and accepting a short term loan facility of up to US Dollar Twelve Million
(USD12,000,000.00) only and a revolving credit facility of up to US Dollar
Eight Million (USD8,000,000.00) (collectively the “Facilities”) pursuant
to an agreement (“Facilities Agreement”)
dated * 2010
between (1) KULICKE &
XXXXX GLOBAL HOLDING CORPORATION (as Borrower), and (2) DBS BANK LTD, LABUAN
BRANCH (as Lender);
|
|
|
(ii)
|
authorising
the execution, delivery and performance of the Corporate Guarantee (as
defined in the Facilities Agreement) and such other documents relating to
the Facilities and where required the affixation of its common seal
thereto in accordance with its constitutional
documents,
|
and such
resolutions have not been amended, modified or revoked and are in full force and
effect;
|
(c)
|
attached
hereto, marked “C”, is the list of signatories of all the authorised
signatories of the Corporate Guarantor and their respective specimen
signatures, any one (1) of whom has been authorised to give notices and
communications under or in connection with the Corporate
Guarantee.
|
|
Signed:
|
|
|
Director
|
46
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities
Agreement
|
I,
[name], a director of KULICKE
& XXXXX INDUSTRIES, INC (Company No. **) (the “Corporate Guarantor”)
hereby certify that [name of director giving above certificate] is a duly
appointed director of the Borrower and that the signature above is his/her
signature.
|
Signed:
|
|
|
Director
|
Date:
47
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities
Agreement
|
SCHEDULE
3
STL Drawing
Notice
To: DBS BANK LTD, LABUAN
BRANCH
(as
Lender)
[Date]
Facilities Agreement dated
** 2010
We refer
to the STL Facility constituted by a facilities agreement dated [*] day of [*]
2010 (the “Facilities Agreement”) between (1) KULICKE & XXXXX GLOBAL HOLDING
CORPORATION (Company No. LL05002) (“Borrower”); and (2) DBS BANK LTD, LABUAN BRANCH
(Company No. LF00330) (Licensed Labuan Bank 940031C)
(“Lender”).
Terms
defined in the Facilities Agreement shall have the same meanings
herein.
We
hereby:
|
(a)
|
give
you notice that we wish to make a STL Drawing under the STL Facility in
the amount of [**] only on [ * ]
2010;
|
|
(b)
|
elect
the tenure of the STL Interest Period to be for a period of one (1) / two
(2) / three (3) / six (6) month(s); [delete whichever not
applicable]
|
|
(c)
|
request
you to remit the STL Drawing directly to
[**];
|
|
(d)
|
confirm
that:-
|
|
|
(i)
|
the
conditions contained in clause 4.1 of the Facilities Agreement are
satisfied as at the date hereof and we know of no reason why it should not
be satisfied as at the date referred to in (a)
above;
|
|
|
(ii)
|
the
representations and warranties contained in clause 11.1 of the Facilities
Agreement if repeated at the date of this STL Drawing Notice with
reference to the facts and circumstances subsisting at the date of this
STL Drawing Notice would be true and accurate in all material respects;
and
|
|
|
(iii)
|
no
event of default mentioned in 14.1 has occurred which constitutes, or with
the lapse of time and or the giving of notice and/or a relevant
determination would constitute a
default.
|
|
Yours
faithfully
|
|
|
|
for
and on behalf of
|
KULICKE & XXXXX GLOBAL HOLDING
CORPORATION (Company No. LL05002)
48
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities
Agreement
|
SCHEDULE
5
STL Rollover
Notice
To: DBS BANK LTD, LABUAN
BRANCH
(as
Lender)
[Date]
Facilities Agreement dated
* 2010
We refer
to the STL Facility constituted by a facilities agreement dated [*] day of [*]
2010 (the “Facilities Agreement”) between (1) KULICKE & XXXXX GLOBAL HOLDING
CORPORATION (Company No. LL05002) (“Borrower”); and (2) DBS BANK LTD, LABUAN BRANCH
(Company No. LF00330) (Licensed Labuan Bank 940031C)
(“Lender”).
Terms
defined in the Facilities Agreement shall have the same meanings
herein.
We
hereby:
|
(a)
|
give
you notice that we wish to rollover a STL Drawing of Ringgit Malaysia *
(RM* ) having a STL Interest Payment Date on * and the Rollover is to have
a STL Interest Period of * months after the date of the Rollover provided
that the Lender has the funds for the requested STL Interest
Period;
|
|
(b)
|
request
you to remit the Drawing to
[
];
|
|
(c)
|
confirm
that:-
|
|
|
(i)
|
the
conditions contained in clause 4.1 of the Facilities Agreement are
satisfied as at the date hereof and we know of no reason why it should not
be satisfied as at the date referred to in (a)
above;
|
|
|
(ii)
|
the
representations and warranties contained in clause 11.1 of the Facilities
Agreement if repeated at the date of this STL Rollover Notice with
reference to the facts and circumstances subsisting at the date of this
STL Rollover Notice would be true and accurate in all material respects;
and
|
|
|
(iii)
|
no
event of default mentioned in 14.1 has occurred which constitutes, or with
the lapse of time and or the giving of notice and/or a relevant
determination would constitute a
default.
|
|
Yours
faithfully
|
|
|
|
for
and on behalf of
|
KULICKE & XXXXX GLOBAL HOLDING
CORPORATION (Company No. LL05002)
* delete
whichever is inapplicable
49
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities
Agreement
|
SCHEDULE
6
RC Drawing
Notice
To: DBS BANK LTD, LABUAN
BRANCH
(as
Lender)
[Date]
Facilities Agreement dated
* 2010
We refer
to the RC Facility constituted by a facilities agreement dated [*] day of [*]
2010 (the “Facilities Agreement”) between (1) KULICKE & XXXXX GLOBAL HOLDING
CORPORATION (Company No. LL05002) (“Borrower”); and (2) DBS BANK LTD, LABUAN BRANCH
(Company No. LF00330) (Licensed Labuan Bank 940031C)
(“Lender”).
Terms
defined in the Facilities Agreement shall have the same meanings
herein.
|
We
hereby:
|
|
(a)
|
give
you notice that we wish to make a RC Drawing under the RC Facility of
RM_______ on
*
2010;
|
|
(b)
|
elect
the tenure of the RC Interest Period to be for a period of one (1) / two
(2) / three (3) / six (6) month(s); [delete whichever not
applicable]
|
|
(c)
|
request
you to remit the RC Drawing to
[
];
|
|
(d)
|
confirm
that:-
|
|
|
(i)
|
the
conditions contained in clause 4.1 of the Facilities Agreement are
satisfied as at the date hereof and we know of no reason why it should not
be satisfied as at the date referred to in (a)
above;
|
|
|
(ii)
|
the
representations and warranties contained in clause 11.1 of the Facilities
Agreement if repeated at the date of this RC Drawing Notice with reference
to the facts and circumstances subsisting at the date of this RC Drawing
Notice would be true and accurate in all material respects;
and
|
|
|
(iii)
|
no
event of default mentioned in 14.1 has occurred which constitutes, or with
the lapse of time and or the giving of notice and/or a relevant
determination would constitute a
default.
|
|
Yours
faithfully
|
|
|
|
for
and on behalf of
|
KULICKE & XXXXX GLOBAL HOLDING
CORPORATION (Company No. LL05002)
50
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities
Agreement
|
SCHEDULE
6
RC Rollover
Notice
To: DBS BANK LTD, LABUAN
BRANCH
(as
Lender)
[Date]
Facilities Agreement dated
* 2010
We refer
to the RC Facility constituted by a facilities agreement dated [*] day of [*]
2010 (the “Facilities Agreement”) between (1) KULICKE & XXXXX GLOBAL HOLDING
CORPORATION (Company No. LL05002) (“Borrower”); and (2) DBS BANK LTD, LABUAN BRANCH
(Company No. LF00330) (Licensed Labuan Bank 940031C)
(“Lender”).
Terms
defined in the Facilities Agreement shall have the same meanings
herein.
We
hereby:
|
(a)
|
give
you notice that we wish to rollover a RC Drawing of Ringgit Malaysia *
(RM* ) having a RC Interest Payment Date on * and the Rollover is to have
a RC Interest Period of * months after the date of the Rollover provided
that the Lender has the funds for the requested RC Interest
Period;
|
|
(b)
|
request
you to remit the Drawing to [
|
];
|
|
(c)
|
confirm
that:-
|
|
|
(i)
|
the
conditions contained in clause 4.1 of the Facilities Agreement are
satisfied as at the date hereof and we know of no reason why it should not
be satisfied as at the date referred to in (a)
above;
|
|
|
(ii)
|
the
representations and warranties contained in clause 11.1 of the Facilities
Agreement if repeated at the date of this RC Rollover Notice with
reference to the facts and circumstances subsisting at the date of this RC
Rollover Notice would be true and accurate in all material respects;
and
|
|
|
(iii)
|
no
event of default mentioned in 14.1 has occurred which constitutes, or with
the lapse of time and or the giving of notice and/or a relevant
determination would constitute a
default.
|
|
Yours
faithfully
|
|
|
|
for
and on behalf of
|
KULICKE & XXXXX GLOBAL HOLDING
CORPORATION (Company No. LL05002)
* delete
whichever is inapplicable
51
|
Kulicke
& Xxxxx Global Holding
Corporation
|
|
|
(Company
No. LL05002)
|
|
|
Short
Term Loan Facility of up to
|
|
|
USD12,000,000.00
& Revolving
Credit
Facility of up to
USD8,000,000.00
|
|
|
-
Facilities
Agreement
|
Dated
this 29 day
of September 2010
SHORT
TERM LOAN FACILITY OF UP TO USD12,000,000.00
REVOLVING
CREDIT FACILITY OF UP TO USD8,000,000.00
FACILITIES
AGREEMENT
Between
KULICKE
& XXXXX GLOBAL HOLDING CORPORATION
(Company
No. LL05002)
(the
Borrower)
And
DBS
BANK LTD, LABUAN BRANCH
(Company
No. LF00330)
(Licensed
Labuan Bank 940031C)
(the
Lender)
52
