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EXHIBIT 10.173
Execution Copy
MAXTOR PERIPHERALS (S) PTE. LIMITED
as Borrower
THE BANK OF NOVA SCOTIA, SINGAPORE BRANCH
as Bank
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S$48,000,000
GUARANTEE FACILITY AGREEMENT
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XXXXXXXX CHANCE
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Execution Copy
CONTENTS
CLAUSE PAGE
1. DEFINITIONS AND INTERPRETATION..........................................1
2. THE FACILITY............................................................8
3. UTILIZATION OF THE FACILITY.............................................9
4. GUARANTEE COMMISSION....................................................9
5. BORROWER'S LIABILITIES IN RELATION TO BANK GUARANTEE...................10
6. CANCELLATION...........................................................11
7. TAXES..................................................................11
8. TAX RECEIPTS...........................................................12
9. INCREASED COSTS........................................................13
10. ILLEGALITY.............................................................13
11. MITIGATION.............................................................14
12. REPRESENTATIONS........................................................14
13. SECURITY...............................................................18
14. FINANCIAL INFORMATION..................................................19
15. FINANCIAL CONDITION....................................................21
16. COVENANTS..............................................................22
17. EVENTS OF DEFAULT......................................................25
18. COMMITMENT COMMISSION AND FEES.........................................29
19. COSTS AND EXPENSES.....................................................30
20. DEFAULT INTEREST AND BREAK COSTS.......................................30
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Execution Copy
21. BORROWER'S INDEMNITIES.................................................31
22. CURRENCY OF ACCOUNT AND PAYMENT........................................32
23. PAYMENTS...............................................................32
24. SET-OFF................................................................32
25. ASSIGNMENTS............................................................33
26. EVIDENCE OF DEBT.......................................................34
27. REMEDIES AND WAIVERS, PARTIAL INVALIDITY...............................34
28. NOTICES................................................................34
29. GOVERNING LAW..........................................................35
30. JURISDICTION...........................................................35
SCHEDULE 1 - CONDITIONS PRECEDENT
SCHEDULE 2 - UTILIZATION REQUEST
SCHEDULE 3
PART 1 - FORM OF PARENT COMPLIANCE CERTIFICATE
SCHEDULE 3
PART 2 - FORM OF BORROWER COMPLIANCE CERTIFICATE
SCHEDULE 4 - FORM OF BANK GUARANTEE
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THIS AGREEMENT is made as of August 31, 1999
BETWEEN
(1) MAXTOR PERIPHERALS (S) PTE. LIMITED registered no. 199000789E (the
"BORROWER"); and
(2) THE BANK OF NOVA SCOTIA, SINGAPORE BRANCH (the "BANK").
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCOUNT" means the account securing the Bank under the Account Charge.
"ACCOUNT BANK" means Xxx Xxxx xx Xxxx Xxxxxx, Xxxx Xxxx Branch as
account bank under the Account Charge.
"ACCOUNT CHARGE" means the account charge dated on or about the same
date hereof between the Borrower as chargor, the Bank as secured party
and the Account Bank.
"AUTHORIZED SIGNATORY" means, in relation to the Borrower or the Parent,
any person who is duly authorized (in such manner as may be reasonably
acceptable to the Bank) and in respect of whom the Bank has received a
certificate signed by a director or another Authorized Signatory of the
Borrower or the Parent, as the case may be, setting out the name and
signature of such person and confirming such person's authority to act.
"AVAILABILITY PERIOD" means the period from and including the date
hereof to and including the earlier of (a) the day which is three months
after the date hereof and (b) the first Business Day on which the
Available Facility is zero.
"AVAILABLE FACILITY" means, at any time and save as otherwise provided
herein, S$48,000,000 less the maximum principal amount of the EDB Loan
guaranteed by the Bank pursuant to the Bank Guarantee which has then
been issued hereunder.
"BANK GUARANTEE" means a guarantee issued or to be issued by the Bank
pursuant to Clause 3 (Utilization of the Facility) substantially in the
form set out in Schedule 4 (Form of Bank Guarantee) or in such other
form requested by the Borrower which is acceptable to the Bank.
"BANK GUARANTEE COMMISSION" means the guarantee commission payable
pursuant to Clause 4 (Guarantee Commission).
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"BANK GUARANTEE COMMISSION RATE" means, if Class A Security is in
effect, 0.15% per annum flat and, if Class B Security is in effect, the
rate agreed between the Bank and the Borrower, in each case, calculated
on the maximum principal amount of the EDB Loan guaranteed by the Bank
pursuant to the Bank Guarantee which has then been issued hereunder.
"BUSINESS DAY" means a day (other than a Saturday or Sunday) which is
not a public holiday and on which banks are open for general business in
Hong Kong, New York and Singapore.
"CASH DEPOSITS" means on any date the Singapore dollar deposits
maintained by the Borrower with the Account Bank and secured in favor of
the Bank pursuant to the Account Charge.
"CLASS A SECURITY" means the Cash Deposits.
"CLASS B SECURITY" means the assets of the Borrower subject to a first
priority security interest to be mutually agreed between the Borrower
and the Bank and such other collateral to be mutually agreed between the
Borrower and the Bank, all such security to be in form, value and
substance satisfactory to the Bank.
"COMPLIANCE CERTIFICATE" means, in respect of the Parent, a certificate
substantially in the form set out in Part 1 of Schedule 3 (Form of
Parent Compliance Certificate) and, in respect of the Borrower, a
certificate substantially in the form set out in Part 2 of Schedule 3
(Form of Borrower Compliance Certificate).
"COMPUTER SYSTEM" means any computer hardware or software or any
equipment operated by electronic means.
"DISPUTE" means any dispute referred to in Clause 30 (Jurisdiction).
"EDB" means the Economic Development Board of Singapore.
"EDB LOAN" means the term loan made under the EDB Loan Agreement in an
aggregate principal amount up to S$48,000,000 to be granted to the
Borrower by EDB under its capital assistance scheme upon the terms and
conditions set out in the EDB Offer Letter and the EDB Loan Agreement.
"EDB LOAN AGREEMENT" means the agreement to be entered into between the
Borrower and EDB pursuant to which EDB will grant the EDB Loan to the
Borrower.
"EDB OFFER LETTER" means the letter from EDB to the Borrower dated
August 7, 1999 offering to make available the EDB Loan.
"ENCUMBRANCE" means (a) a mortgage, charge, pledge, lien or other
encumbrance securing any obligation of any person, (b) any arrangement
under which money or claims to, or the benefit of, a bank or other
account may be applied, set off or made subject to a combination of
accounts so as to effect discharge of any sum owed or
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payable to any person or (c) any other type of preferential arrangement
(including any title transfer and retention arrangement) having a
similar effect.
"ENVIRONMENTAL CLAIM" means any claim, proceeding or investigation by
any person pursuant to any Environmental Law.
"ENVIRONMENTAL LAW" means any applicable law in any jurisdiction in
which the Borrower conducts business which relates to the pollution or
protection of the environment or harm to or the protection of human
health or the health of animals or plants.
"ENVIRONMENTAL PERMITS" means any permit, licence, consent, approval and
other authorisation and the filing of any notification, report or
assessment required under any Environmental Law for the operation of the
business of the Borrower conducted on or from the properties owned or
used by the Borrower.
"EVENT OF DEFAULT" means any circumstance described as an event of
default in Clause 17 (Events of Default).
"FACILITY" means the Singapore dollar guarantee issuance facility
granted to the Borrower hereunder.
"FACILITY OFFICE" means the lending office of the Bank identified under
the Bank's signature below or such other lending office as it may from
time to time select by notice to the Borrower.
"FINANCE DOCUMENTS" means this Agreement, any Security Document, any fee
letter delivered pursuant to Clause 18 (Commitment Commission and Fees),
the Bank Guarantee and any document(s) delivered or to be delivered
pursuant to any of the foregoing.
"FINANCIAL INDEBTEDNESS" means, without duplication, any indebtedness
for or in respect of:
(a) Indebtedness for Borrowed Money;
(b) any documentary or standby letter of credit facility other than
those supporting trade payables in the ordinary course of
business due not later than 90 days after the date of
determination;
(c) any interest rate swap, currency swap, forward foreign exchange
transaction, cap, floor, collar or option transaction or any
other treasury transaction or any combination thereof or any
other transaction entered into in connection with protection
against or benefit from fluctuation in any rate or price (and
the amount of the Financial Indebtedness in relation to any such
transaction shall be calculated by reference to the
xxxx-to-market valuation of such transaction at the relevant
time); and
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(d) any guarantee or indemnity for any of the items referred to in
paragraphs (a) to (c) above.
"GROUP" means the Parent and its subsidiaries.
"INDEBTEDNESS FOR BORROWED MONEY" means, without duplication, any
indebtedness for or in respect of:
(e) moneys borrowed;
(f) any amount raised by acceptance under any acceptance credit
facility;
(g) any amount raised pursuant to any note purchase facility or the
issue of bonds, notes, debentures, loan stock or any similar
instrument;
(h) any amount raised pursuant to any issue of shares which are
expressed to be redeemable at the option of the holder thereof;
(i) the amount of any liability in respect of any lease or hire
purchase contract which would, in accordance with generally
accepted accounting principles in the relevant jurisdiction, be
treated as a capital lease;
(j) the amount of any liability in respect of any advance or
deferred purchase agreement if one of the primary reasons for
entering into such agreement is to raise finance, other than
trade payables in the ordinary course of business due not later
than 90 days after the date of determination;
(k) receivables sold or discounted (other than (i) on a non-recourse
basis or (ii) pursuant to the asset securitization program
currently in effect with Fleet National Bank, as administrator,
and any renewal or replacement thereof on substantially similar
terms);
(l) any agreement to re-acquire an asset if one of the primary
reasons for entering into such agreement is to raise finance;
(m) any amount raised under any other transaction (including any
forward sale or purchase agreement) having the effect of a
borrowing; and
(n) the amount of any liability in respect of any guarantee or
indemnity for any of the items referred to in paragraphs (a) to
(i) above.
"INTEREST PERIOD" means, save as otherwise provided herein, in relation
to an Unpaid Sum, any of those periods mentioned in Clause 20.1 (Default
Interest Periods).
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or
prospects of the Borrower or the Parent, as the case may be; (b) the
ability of the Borrower to perform its obligations under this Agreement;
or (c) the validity or enforceability of this
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Agreement or any of the other Finance Documents or the rights or
remedies of the Bank hereunder or thereunder.
"MATERIAL SUBSIDIARY" means one or more subsidiaries of the Parent whose
consolidated assets constitute at least 5% of the total assets of the
Group or whose consolidated revenues constitute at least 20% of the
total revenue of the Group.
"MINISTRY OF TRADE" means the Ministry of Trade and Industry of the
Republic of Singapore (or any successor thereto).
"ORIGINAL FINANCIAL STATEMENTS" means, in respect of the Borrower, the
audited financial statements of the Borrower for its financial year
ended December 26, 1998 and, in respect of the Parent, the audited
consolidated financial statements of the Parent and its consolidated
subsidiaries for its financial year ended December 26, 1998.
"PARENT" means Maxtor Corporation, a Delaware corporation.
"PERMITTED ENCUMBRANCE" means (i) any Encumbrance created under the
Finance Documents, (ii) Encumbrances for taxes, fees, assessments or
other governmental charges which are not delinquent or remain payable
without penalty, (iii) Encumbrances of materialmen, mechanics,
warehousemen, carriers or similar other Encumbrances arising in the
ordinary course of business and securing obligations which are not yet
delinquent, (iv) judgment or attachment Encumbrances and (v)
Encumbrances arising solely by virtue of any statutory or common law
provision relating to bankers' liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained
with a creditor depository institution.
"PIONEER STATUS" means that the Borrower shall continue (i) to be
certified as a pioneer enterprise by the Ministry of Trade, (ii) to be
entitled to the benefits of the Economic Expansion Incentives (Relief
from Income Tax) Act (CAP. 86) of the Republic of Singapore and (iii) to
comply with the conditions set forth in Certificate No. 1228 dated June
3, 1998 issued by the Ministry of Trade in order to maintain such
certification and entitlement.
"POTENTIAL EVENT OF DEFAULT" means any event which may become (with the
passage of time, the giving of notice, the making of any determination
hereunder or any combination thereof) an Event of Default.
"REPAYMENT DATE" means each of the dates specified as such in the EDB
Loan Agreement.
"SECURITY" means the Class A Security or the Class B Security as
selected by the Borrower pursuant to Clause 13 (Security).
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"SECURITY DOCUMENTS" means any document creating or evidencing a
security interest in favor of the Bank (including, without limitation,
the Account Charge) and any document(s) delivered pursuant to any of the
foregoing.
"UNPAID SUM" means the unpaid balance of any of the sums referred to in
Clause 20.1 (Default Interest Periods).
"UTILIZATION DATE" means the date on which the Bank Guarantee is issued.
"UTILIZATION REQUEST" means a notice substantially in the form set out
in Schedule 2 (Utilization Request).
"YEAR 2000 COMPLIANT" means, in relation to any Computer System, that
any reference to or use of a date before, on or after December 31, 1999
in the operation of that Computer System will not have an adverse effect
on the use of that Computer System.
1.2 INTERPRETATION
Any reference in this Agreement to:
the "BANK" shall be construed so as to include its and any subsequent
successors in accordance with their respective interests;
"CONTINUING", in relation to an Event of Default, shall be construed as
a reference to an Event of Default which has not been waived in
accordance with the terms hereof and, in relation to a Potential Event
of Default, one which has not been remedied within the relevant grace
period or waived in accordance with the terms hereof;
a "HOLDING COMPANY" of a company or corporation shall be construed as a
reference to any company or corporation of which the first-mentioned
company or corporation is a subsidiary;
"INDEBTEDNESS" shall be construed so as to include any obligation
(whether incurred as principal or as surety) for the payment or
repayment of money, whether present or future, actual or contingent;
a "LAW" shall be construed as any law (including common or customary
law), statute, constitution, decree, judgment, treaty, regulation,
directive, bye-law, order or any other legislative measure of any
government, supranational, local government, statutory or regulatory
body or court;
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
succeeding calendar month save that,
(a) if any such numerically corresponding day is not a Business Day,
such period shall end on the immediately succeeding Business Day
to occur in that next
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succeeding calendar month or, if none, it shall end on the immediately
preceding Business Day; and
(b) if there is no numerically corresponding day in that next
succeeding calendar month, that period shall end on the last
Business Day in that next succeeding calendar month;
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;
"REPAY" (or any derivative form thereof) shall, subject to any contrary
indication, be construed to include "PREPAY" (or, as the case may be,
the corresponding derivative form thereof);
a "SUBSIDIARY" of a company or corporation shall be construed as a
reference to any company or corporation:
(c) which is controlled, directly or indirectly, by the
first-mentioned company or corporation;
(d) more than half the issued share capital of which is beneficially
owned, directly or indirectly, by the first-mentioned company or
corporation and which is consolidated with the first-mentioned
company or corporation in such company or corporation's
financial accounts; or
(e) which is a subsidiary of another subsidiary of the
first-mentioned company or corporation
and, for these purposes, a company or corporation shall be treated as
being controlled by another if that other company or corporation is able
to direct its affairs and/or to control the composition of its board of
directors or equivalent body;
a "SUCCESSOR" shall be construed so as to include an assignee or
successor in title of such party and any person who under the laws of
its jurisdiction of incorporation or domicile has assumed the rights and
obligations of such party under this Agreement or to which, under such
laws, such rights and obligations have been transferred;
"TAX" shall be construed so as to include any tax, levy, impost, duty or
other charge of a similar nature (including any penalty or interest
payable in connection with any failure to pay or any delay in paying any
of the same);
"VAT" shall be construed as a reference to value added tax including any
similar tax which may be imposed in place thereof from time to time; and
the "WINDING-UP", "DISSOLUTION" or "ADMINISTRATION" of a company or
corporation shall be construed so as to include any equivalent or
analogous proceedings under the law of the jurisdiction in which such
company or corporation is incorporated or any
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jurisdiction in which such company or corporation carries on business
including the seeking of liquidation, winding-up, re-organisation,
dissolution, administration, arrangement, adjustment, protection or
relief of debtors.
1.3 CURRENCY SYMBOLS
"S$" and "SINGAPORE DOLLARS" denote lawful currency of the Republic of
Singapore and "US$" and "US DOLLARS" denote lawful currency of the
United States of America.
1.4 AGREEMENTS AND STATUTES
Any reference in this Agreement to:
1.4.1 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, novated or
supplemented; and
1.4.2 a statute or treaty shall be construed as a reference to such
statute or treaty as the same may have been, or may from time to
time be, amended or, in the case of a statute, re-enacted.
1.5 HEADINGS
Clause and Schedule headings are for ease of reference only.
1.6 TIME
Any reference in this Agreement to a time of day shall, unless a
contrary indication appears, be a reference to Singapore time.
1.7 BASIS OF ACCRUAL
Except as otherwise provided in this Agreement, interest, Bank Guarantee
Commission, commitment commission and fees shall accrue from day to day
and shall be calculated on the basis of a year of 360 days and the
actual number of days elapsed.
2. THE FACILITY
2.1 GRANT OF THE FACILITY
The Bank grants to the Borrower through the Facility Office, upon the
terms and subject to the conditions hereof, a Singapore dollar guarantee
issuance facility in an aggregate amount of S$48,000,000.
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2.2 PURPOSE
The Facility is intended to support the obligations of the Borrower
under the EDB Loan and accordingly, the Borrower shall utilise the Bank
Guarantee solely for this purpose and the Bank shall not be obliged to
concern itself with such application.
3. UTILIZATION OF THE FACILITY
The Bank Guarantee will be issued by the Bank at the Borrower's request
if:
3.1.1 not more than ten nor less than two Business Days before the
proposed date for the issuance of the Bank Guarantee, the Bank
has received a completed Utilization Request;
3.1.2 the proposed date for the issuance of the Bank Guarantee is a
Business Day within the Availability Period;
3.1.3 no prior Bank Guarantee has been issued by the Bank;
3.1.4 the proposed maximum principal amount of the EDB Loan to be
guaranteed by the Bank pursuant to the Bank Guarantee is equal
to the amount of the Available Facility;
3.1.5 the proposed term of the Bank Guarantee is a period not
exceeding two years from the Utilization Date and the proposed
form of the Bank Guarantee is satisfactory to the Bank; and
3.1.6 on and as of the proposed date for the issuance of the Bank
Guarantee (a) the Bank has received all of the documents and
other evidence listed in Schedule 1 (Conditions Precedent) and
that each is, in form and substance, satisfactory to the Bank,
(b) the EDB Loan Agreement is in full force and effect and all
conditions precedent (other than the issuance of the Bank
Guarantee) specified therein have been complied with and (c) no
Event of Default or Potential Event of Default is continuing.
4. GUARANTEE COMMISSION
The Borrower shall, in respect of the Bank Guarantee requested by it,
pay to the Bank a guarantee commission at the Bank Guarantee Commission
Rate on the maximum principal amount of the EDB Loan guaranteed by the
Bank under the Bank Guarantee (taking into account any prior repayments
or prepayments under the EDB Loan). Such guarantee commission shall be
paid in advance in respect of each successive period of three months (or
such shorter period as shall end on the next succeeding Repayment Date)
which begins during the period from the Utilization Date until the date
on which the Bank's obligations under the Bank Guarantee are terminated,
the first such payment to be made on the Utilization Date for the Bank
Guarantee and thereafter on the first day of each such period.
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5. BORROWER'S LIABILITIES IN RELATION TO BANK GUARANTEE
5.1 BORROWER'S INDEMNITY TO BANK
The Borrower shall irrevocably and unconditionally as a primary
obligation indemnify (on demand of the Bank) the Bank against:
5.1.1 any sum paid or due and payable by the Bank under the Bank
Guarantee; and
5.1.2 all liabilities, costs (including, without limitation, any costs
incurred in funding any amount which falls due from the Bank
under the Bank Guarantee or in connection with the Bank
Guarantee), claims, losses and expenses which the Bank may at
any time incur or sustain in connection with or arising out of
the execution, delivery or performance by the Bank of the Bank
Guarantee or the other Finance Documents, provided that such
amounts shall not include any amounts payable under Clause 19.1
(Transaction Expenses) or 19.2 (Preservation and Enforcement of
Rights).
5.2 PRESERVATION OF RIGHTS
Neither the obligations of the Borrower set out in this Clause 5 nor the
rights, powers and remedies conferred on the Bank by this Agreement or
by law shall be discharged, impaired or otherwise affected by:
5.2.1 the winding-up, dissolution, administration or re-organisation
of the Bank or any other person or any change in its status,
function, control or ownership;
5.2.2 any of the obligations of the Bank or any other person hereunder
or under the Bank Guarantee or under any other security taken in
respect of its obligations hereunder or otherwise taken in
connection with the Bank Guarantee being or becoming illegal,
invalid, unenforceable or ineffective in any respect;
5.2.3 time or other indulgence being granted or agreed to be granted
to the Bank or any other person in respect of its obligations
hereunder or under or in connection with the Bank Guarantee or
under any Security;
5.2.4 any amendment to, or any variation, waiver or release of, any
obligation of the Bank or any other person under any Security;
or
5.2.5 any other act, event or omission which, but for this Clause 5,
might operate to discharge, impair or otherwise affect any of
the obligations of the Borrower set out in this Clause 5 or any
of the rights, powers or remedies conferred upon the Bank by
this Agreement or by law.
The obligations of the Borrower set out in this Clause 5 shall be in
addition to and independent of every other security which the Bank may
at any time hold in respect of the Borrower's obligations hereunder.
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5.3 SETTLEMENT CONDITIONAL
Any settlement or discharge between the Borrower and the Bank shall be
conditional upon no security or payment to the Bank by the Borrower, or
any other person on behalf of the Borrower, being avoided or reduced by
virtue of any laws relating to bankruptcy, insolvency, liquidation or
similar laws of general application and, if any such security or payment
is so avoided or reduced, the Bank shall be entitled to recover the
value or amount of such security or payment from the Borrower
subsequently as if such settlement or discharge had not occurred.
5.4 RIGHT TO MAKE PAYMENTS UNDER BANK GUARANTEE
The Bank shall be entitled to make any payment in accordance with the
terms of the Bank Guarantee without any reference to or further
authority from the Borrower or any other investigation or enquiry. The
Borrower irrevocably authorises the Bank to comply with any demand under
the Bank Guarantee which is valid on its face.
6. CANCELLATION
6.1 CANCELLATION
The Borrower may, by giving to the Bank not less than ten Business Days'
prior notice to that effect, cancel the whole or any part (being an
amount or integral multiple of S$1,000,000) of the Available Facility.
6.2 NOTICE OF CANCELLATION
Any notice of cancellation given by the Borrower pursuant to Clause 6.1
(Cancellation) shall be irrevocable, shall specify the date upon which
such cancellation is to be made and the amount of such cancellation.
7. TAXES
7.1 TAX GROSS-UP
All payments to be made by the Borrower to the Bank under the Finance
Documents shall be made free and clear of and without deduction for or
on account of tax unless the Borrower is required to make such a payment
subject to the deduction or withholding of tax, in which case the sum
payable by the Borrower (in respect of which such deduction or
withholding is required to be made) shall be increased to the extent
necessary to ensure that the Bank receives a sum net of any deduction or
withholding equal to the sum which it would have received had no such
deduction or withholding been made or required to be made.
7.2 TAX INDEMNITY
Without prejudice to Clause 7.1 (Tax Gross-up), if the Bank is required
to make any payment of or on account of tax on or in relation to any sum
received or receivable
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under any Finance Document (including any sum deemed for purposes of tax
to be received or receivable by the Bank whether or not actually
received or receivable) or if any liability in respect of any such
payment is asserted, imposed, levied or assessed against the Bank, the
Borrower shall, upon demand of the Bank, promptly indemnify the Bank
against such payment or liability, together with any interest,
penalties, costs and expenses payable or incurred in connection
therewith, PROVIDED THAT this Clause 7.2 shall not apply to:
7.2.1 any tax imposed on and calculated by reference to the net income
actually received or receivable by the Bank by the jurisdiction
in which the Bank is incorporated; or
7.2.2 any tax imposed on and calculated by reference to the net income
of the Facility Office of the Bank actually received or
receivable by the Bank by the jurisdiction in which the Facility
Office is located.
7.3 CLAIMS BY THE BANK
If the Bank intends to make a claim pursuant to Clause 7.2 (Tax
Indemnity), it shall notify the Borrower of the event giving rise to
such claim.
8. TAX RECEIPTS
8.1 NOTIFICATION OF REQUIREMENT TO DEDUCT TAX
If, at any time, the Borrower is required by law to make any deduction
or withholding from any sum payable by it under the Finance Documents
(or if thereafter there is any change in the rates at which or the
manner in which such deductions or withholdings are calculated), the
Borrower shall promptly notify the Bank.
8.2 EVIDENCE OF PAYMENT OF TAX
If the Borrower makes any payment under the Finance Documents in respect
of which it is required to make any deduction or withholding, it shall
pay the full amount required to be deducted or withheld to the relevant
taxation or other authority within the time allowed for such payment
under applicable law and shall deliver to the Bank, within thirty days
after it has made such payment to the applicable authority, an original
receipt (or a certified copy thereof) issued by such authority
evidencing the payment to such authority of all amounts so required to
be deducted or withheld in respect of such payment.
8.3 TAX AND OTHER AFFAIRS
No provision of this Agreement shall interfere with the right of the
Bank to arrange its tax or any other affairs in whatever manner it
thinks fit, oblige the Bank to claim any credit, relief, remission or
repayment in respect of any payment under Clause 7 (Taxes) in priority
to any other credit, relief, remission or repayment available to it
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nor oblige the Bank to disclose any information relating to its tax or
other affairs or any computations in respect thereof.
9. INCREASED COSTS
9.1 INCREASED COSTS
If, by reason of (a) any change in law or in its interpretation or
administration and/or (b) compliance with any request or requirement
relating to the maintenance of capital or any other request from or
requirement of any central bank or other fiscal, monetary or other
authority:
9.1.1 the Bank or any holding company of the Bank is unable to obtain
the rate of return on its capital which it would have been able
to obtain but for the Bank's entering into or assuming or
maintaining a commitment, issuing the Bank Guarantee or
performing its obligations under the Finance Documents;
9.1.2 the Bank or any holding company of the Bank incurs a cost as a
result of the Bank's entering into or assuming or maintaining a
commitment, issuing the Bank Guarantee or performing its
obligations under the Finance Documents; or
9.1.3 there is any increase in the cost to the Bank or any holding
company of the Bank of funding or maintaining any Unpaid Sum or
the Bank Guarantee,
then the Borrower shall, from time to time on demand of the Bank,
promptly pay to the Bank amounts sufficient to indemnify the Bank or to
enable the Bank to indemnify its holding company from and against, as
the case may be, (i) such reduction in the rate of return of capital,
(ii) such cost or (iii) such increased cost.
9.2 INCREASED COSTS CLAIMS
If the Bank intends to make a claim pursuant to Clause 9.1 (Increased
Costs), it shall notify the Borrower of the event giving rise to such
claim.
9.3 EXCLUSIONS
Notwithstanding the foregoing provisions of this Clause 9, the Bank
shall not be entitled to make any claim in respect of any cost,
increased cost or liability compensated by Clause 7 (Taxes).
10. ILLEGALITY
If, at any time, it is or will become unlawful for the Bank to make,
fund or allow to remain outstanding all or part of the Bank Guarantee,
then the Bank shall, promptly after becoming aware of the same, deliver
to the Borrower a notice to that effect and:
17
10.1.1 the Bank shall not thereafter be obliged to issue the Bank
Guarantee and the amount of the Available Facility shall be
immediately reduced to zero; and
10.1.2 if the Bank so requires, the Borrower shall on such date as the
Bank shall have specified ensure that the liabilities of the
Bank under or in respect of the Bank Guarantee issued by it is
reduced to zero.
11. MITIGATION
If circumstances arise which would or would upon the giving of notice
result in:
11.1.1 an increase in any sum payable to it or for its account pursuant
to Clause 7.1 (Tax Gross-up);
11.1.2 a claim for indemnification pursuant to Clause 7.2 (Tax
Indemnity) or Clause 9.1 (Increased Costs); or
11.1.3 the reduction of the Available Facility to zero or any repayment
to be made by the Borrower pursuant to Clause 10 (Illegality),
then, without in any way limiting, reducing or otherwise qualifying the
rights of the Bank or the obligations of the Borrower under any of the
Clauses referred to above, the Bank shall promptly upon becoming aware
of such circumstances notify the Borrower thereof and, in consultation
with the Borrower to the extent that it can do so lawfully and without
prejudice to its rights hereunder, take reasonable steps (including a
change of location of the Facility Office or the transfer of its rights,
benefits and obligations hereunder to another financial institution
acceptable to the Borrower and willing to participate in the Facility)
to mitigate the effects of such circumstances, PROVIDED THAT the Bank
shall be under no obligation to take any such action if, in the opinion
of the Bank, to do so might have any adverse effect upon its business,
operations or financial condition (other than any minor costs and
expenses of an administrative nature).
12. REPRESENTATIONS
The Borrower makes the representations and warranties set out in Clause
12.1 (Status) to Clause 12.23 (Year 2000) and acknowledges that the Bank
has entered into this Agreement in reliance on those representations and
warranties.
12.1 STATUS
It is a corporation duly organised under the laws of Singapore.
12.2 GOVERNING LAW AND JUDGMENTS
In any proceedings taken in its jurisdiction of incorporation in
relation to this Agreement, the choice of New York law as the governing
law of this Agreement and any judgment obtained in New York will be
recognised and enforced.
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12.3 BINDING OBLIGATIONS
It has duly executed and delivered each of the Finance Documents and the
obligations expressed to be assumed by it under the Finance Documents
are legal and valid obligations binding on it and enforceable against it
in accordance with the terms thereof.
12.4 EXECUTION OF THIS AGREEMENT
Its execution of the Finance Documents and the EDB Loan Agreement and
its exercise of its rights and performance of its obligations thereunder
do not and will not:
12.4.1 conflict with any agreement, mortgage, bond or other instrument
or treaty to which it is a party or which is binding upon it or
any of its assets unless such conflict would not have a Material
Adverse Effect;
12.4.2 conflict with its constitutive documents; or
12.4.3 conflict with any applicable law.
It has the power to enter into the Finance Documents and the EDB Loan
Agreement and all corporate and other action required to authorise the
execution of the Finance Documents and the EDB Loan Agreement and the
performance of its obligations thereunder has been duly taken.
12.5 NO WINDING-UP
Neither the Borrower nor, to the best of the Borrower's knowledge and
belief, the Parent has taken any corporate action nor have any other
steps been taken or legal proceedings been started or (to the best of
its knowledge and belief) threatened against the Borrower or the Parent
for its winding-up, dissolution, administration or re-organisation
(whether by voluntary arrangement, scheme of arrangement or otherwise)
or for the appointment of a receiver, administrator, administrative
receiver, conservator, custodian, trustee or similar officer of it or of
any or all of its assets or revenues.
12.6 NO MATERIAL DEFAULTS
Neither the Borrower nor, to the best of the Borrower's knowledge and
belief, the Parent is in breach of or in default under any agreement to
which it is a party or which is binding on it or any of its assets to an
extent or in a manner which might have a Material Adverse Effect.
12.7 NO MATERIAL PROCEEDINGS
No action or administrative proceeding of or before any court or agency
which would reasonably be expected to have a Material Adverse Effect has
been started or, to the best of the Borrower's knowledge and belief,
threatened against the Borrower or, to
19
the best of the Borrower's knowledge and belief, the Parent except as
disclosed in a filing with the Securities and Exchange Commission.
12.8 AUDITED FINANCIAL STATEMENTS
The most recent audited financial statements of the Borrower and, to the
best of the Borrower's knowledge and belief, the most recent audited
consolidated financial statements of the Parent:
12.8.1 were prepared in accordance with accounting principles generally
accepted in Singapore (in the case of the Borrower) and the
United States of America (in the case of the Parent) and
consistently applied; and
12.8.2 save as disclosed therein, are true, accurate and complete and
fairly present the financial condition and operations of the
Borrower or the Parent (as the case may be) during the relevant
financial year.
12.9 NO MATERIAL ADVERSE CHANGE
Since the date as at which the most recent audited financial statements
of the Borrower and the most recent audited consolidated financial
statements of the Parent were stated to be prepared, there has been no
material adverse change in the business or financial condition of any
member of the Group which has not been disclosed to the Bank or
disclosed in a filing with the Securities and Exchange Commission.
12.10 DEBT AGREEMENTS
Each of the Borrower and, to the best of the Borrower's knowledge and
belief, the Parent is in compliance with its respective material
obligations under any agreement in respect of Financial Indebtedness in
excess of US$10,000,000.
12.11 PIONEER STATUS
It has obtained Pioneer Status.
12.12 WRITTEN INFORMATION
All written information supplied by any member of the Group is true,
complete and accurate in all material respects as at the date it was
given and is not misleading in any respect.
12.13 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All acts, conditions and things required to be done, fulfilled and
performed in order (a) to enable it lawfully to enter into, exercise its
rights under and perform and comply with the obligations expressed to be
assumed by it in the Finance Documents and the EDB Loan Agreement, (b)
to ensure that the obligations expressed to be assumed by it in the
Finance Documents and the EDB Loan Agreement are legal,
20
valid, binding and enforceable and (c) to make the Finance Documents and
the EDB Loan Agreement admissible in evidence in its jurisdiction of
incorporation have been done, fulfilled and performed.
12.14 CLAIMS PARI PASSU
Under the laws of its jurisdiction of incorporation in force at the date
hereof, the claims of the Bank against it under the Finance Documents
will rank at least pari passu with the claims of all its unsecured and
unsubordinated creditors save those whose claims are preferred solely by
any bankruptcy, insolvency, liquidation or other similar laws of general
application.
12.15 NO FILING OR STAMP TAXES
Under the laws of its jurisdiction of incorporation in force at the date
hereof, it is not necessary that the Finance Documents be filed,
recorded or enrolled with any court or other authority in such
jurisdiction or that any stamp, registration or similar tax be paid on
or in relation to the Finance Documents except such filings, recordings,
enrollment or payments as have been made.
12.16 ENCUMBRANCES
Save for Permitted Encumbrances, no Encumbrance exists over all or any
part of the Security.
12.17 NO DEDUCTION OR WITHHOLDING
Under the laws of its jurisdiction of incorporation in force at the date
hereof, it will not be required to make any deduction or withholding
from any payment it may make under the Finance Documents to the Bank in
Singapore.
12.18 ENVIRONMENTAL COMPLIANCE
The Borrower has duly performed and observed in all material respects
all Environmental Law, Environmental Permits and all other material
covenants, conditions, restrictions or agreements directly or indirectly
concerned with any contamination, pollution or waste or the release or
discharge of any toxic or hazardous substance in connection with any
real property which is or was at any time owned, leased or occupied by
the Borrower or on which the Borrower has conducted any activity where
failure to do so might reasonably be expected to have a Material Adverse
Effect.
12.19 ENVIRONMENTAL CLAIMS
No Environmental Claim has been commenced or (to the best of the
Borrower's knowledge and belief) is threatened against the Borrower
where such claim would be reasonably likely, if determined against the
Borrower, to have a Material Adverse Effect.
21
12.20 TAX RETURN
It has filed all tax returns required to be filed by it under all
applicable laws and has paid all taxes due and payable by it PROVIDED
THAT it has not filed a tax return for the fiscal years ending in 1997
and 1998. The Borrower represents and warrants that any fines due and
payable as a result of such late filing will be immaterial in amount.
12.21 MATERIAL ADVERSE EFFECT
No event has occurred or, to the best of its knowledge, is reasonably
anticipated to occur, which is likely to have a Material Adverse Effect.
12.22 OWNERSHIP OF THE BORROWER
The Parent owns, directly or indirectly, 100 percent of the issued share
capital of the Borrower.
12.23 YEAR 2000
The Borrower believes (having undertaken a comprehensive review and
assessment) that all Computer Systems used by any member of the Group
are Year 2000 Compliant. The Borrower (having made due enquiry) believes
that each of the Group's suppliers and customers (which are of material
importance to the business and operations of the Group) will also, on a
timely basis, ensure that their Computer Systems are Year 2000
Compliant.
13. SECURITY
13.1 SECURITY
The Borrower shall ensure that the Class A Security is in full force and
effect from the Utilization Date and at all times thereafter until the
Class A Security is replaced with the Class B Security pursuant to
Clause 13.2 (Change of Security). The Borrower may elect to replace the
Class A Security with the Class B Security or the Class B Security with
the Class A Security in accordance with Clause 13.2 (Change of
Security). The Borrower shall ensure that at all times during which the
Class A Security is in effect, the amount of the Cash Deposits shall
equal at least (a) if on such date the interest rate at which the EDB
Loan is accruing interest is less than 7.5 percent per annum,
S$50,400,000 less (i) 105 percent multiplied by (ii) the aggregate
amount of all repayments and prepayments of principal made by the
Borrower under the EDB Loan Agreement and (b) if on such date the rate
at which the EDB Loan is accruing interest is equal to or greater than
7.5 percent per annum, (i) the sum of (x) 100 percent and (y) such
interest rate multiplied by (ii) the aggregate principal amount of the
EDB Loan outstanding on such date. By way of example and for the
avoidance of doubt, if on a day the rate at which the EDB Loan is
accruing interest is 8 percent per annum and no prepayments or
repayments shall have been made under the EDB
22
Loan, then the amount of the required Cash Deposits shall equal 108
percent multiplied by S$48,000,000, or S$51,840,000.
13.2 CHANGE OF SECURITY
The Security provided by the Borrower may be changed at the Borrower's
request if:
13.2.1 not more than 90 nor less than 30 days before the next due date
for payment of the Bank Guarantee Commission, the Bank has
received a written request from the Borrower to change the
Security from Class A Security to Class B Security or vice
versa;
13.2.2 the proposed date for the change of Security shall be a date on
which the Bank Guarantee Commission is payable pursuant to
Clause 4 (Guarantee Commission);
13.2.3 the Borrower has not already requested a change of Security
during the immediately preceding three month period PROVIDED
THAT the Borrower shall be entitled to make an additional three
requests for a change of Security during the effectiveness of
this Agreement;
13.2.4 the Bank is satisfied in its sole discretion that its rights
under the Facility and in respect of the Security shall not be
prejudiced in any way by the change of Security requested by the
Borrower;
13.2.5 in the case of a requested change from Class A Security to Class
B Security, the identity, value, form and substance of the Class
B Security and the related Security Documents and the amount of
the applicable Bank Guarantee Commission Rate have been mutually
agreed to the satisfaction of the Bank; and
13.2.6 on and as of the proposed date of the change of Security, no
Event of Default or Potential Event of Default is continuing,
then, save as otherwise provided herein or in the existing Security
Documents, the Security will be changed on the next due date for the
payment of the Bank Guarantee Commission by the Borrower delivering
replacement Security Documents and complying with all other matters
required therein.
14. FINANCIAL INFORMATION
14.1 ANNUAL STATEMENTS
The Borrower shall as soon as the same become available, but in any
event within 180 days after the end of each of its or, as the case may
be, the Parent's financial years, deliver to the Bank its consolidated
financial statements and the Parent's consolidated financial statements
for such financial year, audited by an internationally
23
recognised firm of independent auditors licensed to practise in
Singapore (in the case of the Borrower) and the United States of America
(in the case of the Parent).
14.2 QUARTERLY STATEMENTS
The Borrower shall as soon as the same become available but in any event
within 90 days after the end of each quarter of each of the Parent's
financial years deliver to the Bank the Parent's consolidated statements
for such period.
14.3 REQUIREMENTS AS TO FINANCIAL STATEMENTS
The Borrower shall ensure that each set of financial statements
delivered by it pursuant to this Clause 14 is:
14.3.1 prepared on the same basis as was used in the preparation of its
Original Financial Statements and in accordance with accounting
principles generally accepted in Singapore (in the case of the
Borrower) or United States of America (in the case of the
Parent) and consistently applied; and
14.3.2 certified by an Authorized Signatory of the Borrower or the
Parent (as the case may be) as being true, accurate and complete
and fairly presenting its financial condition as at the end of
the period to which those financial statements relate and of the
results of its operations during such period subject, in the
case of the financial statements delivered pursuant to Clause
14.2 (Quarterly Statements), to year-end audit adjustments.
14.4 COMPLIANCE CERTIFICATES
The Borrower shall ensure that each set of consolidated financial
statements delivered by it pursuant to Clause 14.1 (Annual Statements)
or Clause 14.2 (Quarterly Statements) is accompanied by a Compliance
Certificate signed by a director or senior financial officer of the
Borrower and, in the case of the Parent's financial statements, a
Compliance Certificate signed by a director or senior financial officer
of the Parent.
14.5 OTHER INFORMATION
The Borrower shall furnish and provide the Bank with and permit the Bank
to obtain all such statements, information, explanations and data,
except information of a confidential nature, as the Bank may reasonably
require, by prior written notice, regarding the affairs, operations,
administration, financial or other state or condition of the Borrower.
14.6 ACCOUNTING POLICIES
The Borrower shall ensure that each set of financial statements
delivered pursuant to this Clause 14 is prepared using accounting
policies, practices, procedures and reference period consistent with
those applied in the preparation of the Original Financial Statements
unless, in relation to any such set of financial statements, the
24
Borrower notifies the Bank that there have been one or more changes in
any such accounting policies, practices, procedures or reference period
and the Borrower's or the Parent's (as the case may be) auditors
provide:
14.6.1 a description of the changes and the adjustments which would be
required to be made to those financial statements in order to
cause them to use the accounting policies, practices, procedures
and reference period upon which the Original Financial
Statements were prepared; and
14.6.2 sufficient information, in such detail and format as may be
reasonably required by the Bank, to enable it to make an
accurate comparison between the financial position indicated by
those financial statements and the Original Financial
Statements,
and any reference in this Agreement to those financial statements shall
be construed as a reference to those financial statements as adjusted to
reflect the basis upon which the Original Financial Statements were
prepared.
15. FINANCIAL CONDITION
15.1 FINANCIAL CONDITION
The Borrower covenants that:
15.1.1 Consolidated Cash Balance shall not at any time be less than
US$75,000,000.
15.1.2 Consolidated Tangible Net Worth shall not at any time be less
than 50 percent of Consolidated Tangible Net Worth as at July 3,
1999 (or such other date as may be agreed between the parties)
plus 75 percent of consolidated positive net income for each
successive quarter ended thereafter in respect of which the
Parent has issued its consolidated financial statements pursuant
to Clause 14.1 (Annual Statements) or 14.2 (Quarterly
Statements).
15.2 FINANCIAL DEFINITIONS
In Clause 15.1 (Financial Condition) the following terms have the
following meanings.
"CONSOLIDATED CASH BALANCE" means the aggregate amount of cash, cash
equivalents and marketable securities (provided that any marketable
securities maturing later than 90 days after the date of determination
shall be marked to market every 90 days) held by the Parent and its
consolidated subsidiaries (excluding the Cash Deposits and any drawings
under any short term or revolving term bank facilities other than the
Parent's asset securitization program currently in effect with Fleet
National Bank, as administrator, and any renewal or replacement thereof
on substantially similar terms).
"CONSOLIDATED TANGIBLE NET WORTH" means, without duplication, at any
time consolidated shareholders' equity of the Parent and its
consolidated subsidiaries (net of
25
any unrealized gains or losses on assets) less (to the extent included)
any amount shown in respect of goodwill (including goodwill arising only
on consolidation), franchise, licences, patents, tradenames, copyright,
service marks, brandnames or other intangible assets of the Parent and
its consolidated subsidiaries.
"RELEVANT PERIOD" means each period of twelve months ending on the last
day of each quarter of the Parent's financial year.
15.3 FINANCIAL TESTING
The financial covenants set out in Clause 15.1 (Financial Condition)
must be complied with at all times and shall be reported upon quarterly
by reference to each of the Parent's consolidated financial statements
and each Compliance Certificate delivered pursuant to Clause 14
(Financial Information).
15.4 ACCOUNTING TERMS
All accounting expressions which are not otherwise defined herein shall
be construed in accordance with generally accepted accounting principles
in the United States of America.
16. COVENANTS
16.1 MAINTENANCE OF LEGAL VALIDITY
The Borrower shall obtain, comply with the terms of and do all that is
necessary to maintain in full force and effect all authorisations,
approvals, licences and consents required in or by the laws of its
jurisdiction of incorporation to enable it lawfully to operate its
business and enter into and perform its obligations under the Finance
Documents and the EDB Loan Agreement and to ensure the legality,
validity, enforceability or admissibility in evidence in its
jurisdiction of incorporation of the Finance Documents and the EDB Loan
Agreement, except for such authorisations, approvals, licenses and
consents the failure of which to obtain would not be reasonably likely
to have a Material Adverse Effect.
16.2 INSURANCE
The Borrower shall maintain insurances on and in relation to its
business and assets with reputable underwriters or insurance companies
against such risks and to such extent as is usual for companies carrying
on a business such as that carried on by it.
16.3 ENVIRONMENTAL COMPLIANCE
The Borrower shall comply in all material respects with all
Environmental Law and obtain and maintain any Environmental Permits and
take all reasonable steps in anticipation of known or expected future
changes to or obligations under the same, breach of which (or failure to
obtain, maintain or take which) might reasonably be expected to have a
Material Adverse Effect.
26
16.4 ENVIRONMENTAL CLAIMS
The Borrower shall inform the Bank in writing as soon as reasonably
practicable upon becoming aware of the same if any Environmental Claim
has been commenced or (to the best of the Borrower's knowledge and
belief) is threatened against the Borrower in any case where such claim
would be reasonably likely, if determined against the Borrower, to have
a Material Adverse Effect or of any facts or circumstances which will or
are reasonably likely to result in any Environmental Claim being
commenced or threatened against the Borrower in any case where such
claim would be reasonably likely, if determined against the Borrower, to
have a Material Adverse Effect.
16.5 NOTIFICATION OF EVENTS OF DEFAULT, MATERIAL ADVERSE CHANGE, LITIGATION,
ETC.
The Borrower shall promptly and, in any event not more than 7 days after
it becomes aware of such occurrence inform the Bank of the occurrence
of:
16.5.1 any Event of Default, Potential Event of Default or default or
event of default under the EDB Loan Agreement and, upon receipt
of a written request to that effect from the Bank, confirm to
the Bank that, save as previously notified to the Bank or as
notified in such confirmation, no Event of Default, Potential
Event of Default or default or event of default under the EDB
Loan Agreement has occurred;
16.5.2 any material adverse change in its condition (financial or
otherwise) or of any of its related corporations as reasonably
determined by the Borrower, except as disclosed in a filing with
the Securities and Exchange Commission; and
16.5.3 the institution of any action or administrative proceeding of or
before any court or agency claiming an amount in excess of
US$25,000,000.
The Borrower shall provide the Bank with copies of all notices,
documents or other information provided to, or received from, EDB
pursuant to the EDB Loan Agreement.
16.6 CLAIMS PARI PASSU
The Borrower shall ensure that at all times the claims of the Bank
against it under the Finance Documents rank at least pari passu with the
claims of all its unsecured and unsubordinated creditors save those
whose claims are preferred by any bankruptcy, insolvency, liquidation or
other similar laws of general application.
16.7 NEGATIVE PLEDGE
The Borrower shall not create or permit to subsist any Encumbrance over
all or any part of the Security other than Permitted Encumbrances.
27
16.8 TAXES
The Borrower shall duly pay and discharge all rents, rates, taxes,
assessments and government charges levied upon the Borrower or against
the Borrower's properties prior to the date on which penalties accrue
thereon, the non-payment of which would reasonably be likely to have a
Material Adverse Effect, unless and to the extent only that the same
shall be contested in good faith and in appropriate proceedings by the
Borrower. The Borrower shall file tax returns for the fiscal year ending
in 1997 by December 31, 1999 and for the fiscal year ending in 1998 by
March 31, 2000, and in each case shall pay all applicable fines, if any,
arising as a result of such late filing.
16.9 INSPECTION
The Borrower shall permit, upon reasonable prior written request of the
Bank, the Bank to inspect any land or premises where the Borrower
carries on its business and inspect the same and all property and assets
whatsoever therein or thereon and all accounts records and statements
wherever the same may be situate and to make inventories and record
thereof.
16.10 EQUIPMENT
The Borrower shall keep all its plant, machinery, equipment, buildings,
constructions, fixtures, fittings, implements and other effects in good
and substantial repair and proper working condition in accordance with
good business practice.
16.11 DISPOSAL OF ASSETS
The Borrower shall not sell, transfer or otherwise dispose of all or any
part of its assets or properties (whether in a single transaction or in
a number of related transactions), except for:
(a) disposals in the ordinary course of business on an arms' length
basis;
(b) disposals of obsolete, worn out or damaged assets; and
(c) disposals of assets which, together with all such other
disposals of assets pursuant to this clause (c) occurring after
the date hereof, do not exceed in the aggregate US$25,000,000.
16.12 INSPECTION AUTHORITIES
The Borrower shall give to the Bank such written authorisations or other
directions and provide such facilities and access as the Bank may
require for the inspection referred to in Clause 16.9 (Inspection) and,
during the continuance of an Event of Default, shall pay all costs,
fees, travelling and other out-of-pocket expenses whether legal or
otherwise in respect of such inspection.
28
16.13 MEMORANDUM AND ARTICLES OF ASSOCIATION
Insofar as may be necessary the Borrower shall amend its Memorandum and
Articles of Association so as to enable it to observe and perform all
the covenants, undertakings, terms, stipulations, conditions and other
provisions of this Agreement.
16.14 YEAR 2000
The Borrower shall procure that all Computer Systems used by any member
of the Group are (or will by no later than September 30, 1999 be) Year
2000 Compliant.
17. EVENTS OF DEFAULT
Each of Clause 17.1 (Failure to Pay) to Clause 17.19 (Material Adverse
Change) describes circumstances which constitute an Event of Default for
the purposes of this Agreement.
17.1 FAILURE TO PAY
The Borrower fails to pay any sum due from it under any Finance Document
or the EDB Loan Agreement at the time, in the currency and in the manner
specified therein within three days after the due date thereof.
17.2 MISREPRESENTATION
Any representation or statement made or deemed to be made by the
Borrower or the Parent in any Finance Document or in any notice or other
document, certificate or statement delivered by it pursuant thereto or
in connection therewith is or proves to have been incorrect or
misleading in any material respect when made or deemed to be made.
17.3 SPECIFIC COVENANTS
The Borrower fails duly to perform or comply with any of the obligations
expressed to be assumed by it in Clause 13 (Security), Clause 14
(Financial Information) or Clause 16.5 (Notification of Events of
Default, etc.) and, in the case of the obligations under Clause 13
(Security), the failure, if capable of remedy, is not remedied within
two Business Days after the Borrower becomes aware thereof.
17.4 PIONEER STATUS
The Borrower ceases at any time to maintain its Pioneer Status and fails
to reacquire Pioneer Status within 30 days thereafter.
17.5 OTHER OBLIGATIONS
The Borrower fails duly to perform or comply with any other obligation
expressed to be assumed by it in any Finance Document and such failure,
if capable of remedy, is
29
not remedied within fifteen days after the Bank has given notice thereof
to the Borrower.
17.6 CROSS DEFAULT
Any Financial Indebtedness of any member of the Group is not paid when
due or any creditor of any member of the Group becomes entitled to
declare any Financial Indebtedness of any member of the Group due and
payable prior to its specified maturity, PROVIDED THAT it shall not
constitute an Event of Default if the aggregate amount (or its
equivalent in another currency) of all such Financial Indebtedness of
all members of the Group is less than US$50,000,000.
17.7 CROSS ACCELERATION
Any Financial Indebtedness of any member of the Group is declared to be
or otherwise becomes due and payable prior to its specified maturity,
PROVIDED THAT it shall not constitute an Event of Default if the
aggregate amount (or its equivalent in another currency) of all such
Financial Indebtedness of all members of the Group is less than
US$10,000,000.
17.8 INSOLVENCY AND RESCHEDULING
Any of the Borrower, the Parent or any Material Subsidiary is unable to
pay its debts as they fall due, commences negotiations with any one or
more of its creditors with a view to the general readjustment or
rescheduling of its indebtedness or makes a general assignment for the
benefit of or a composition with its creditors.
17.9 WINDING-UP
Any of the Borrower, the Parent or any Material Subsidiary takes any
corporate action or other steps are taken or legal proceedings are
started for its winding-up, dissolution, administration or
re-organisation (whether by way of voluntary arrangement, scheme of
arrangement or otherwise) for the benefit of or a composition with its
creditors or for the appointment of a liquidator, receiver,
administrator, administrative receiver, conservator, custodian, trustee
or similar officer of it or of any or all of its revenues and assets.
17.10 EXECUTION OR DISTRESS
Any execution or distress is levied against, or an encumbrancer takes
possession of, the whole or any part of, the property, undertaking or
assets of any of the Borrower, the Parent or any Material Subsidiary or
any event occurs which under the laws of any jurisdiction has a similar
or analogous effect and is not discharged in full within 30 days of
having been so levied.
30
17.11 FAILURE TO COMPLY WITH FINAL JUDGMENT
Any member of the Group fails to comply with or pay any sum due from it
under any final judgment or any final order made or given by any court
of competent jurisdiction in an amount which, together with all such
other amounts owing by any other members of the Group, exceeds in the
aggregate US$25,000,000 (or its equivalent in another currency) and such
judgment or order is not satisfied, discharged or stayed pending appeal
within 30 days.
17.12 GOVERNMENTAL INTERVENTION
By or under the authority of any government, (a) the management of the
Borrower is wholly or partially displaced or the authority of the
Borrower in the conduct of its business is wholly or partially curtailed
or (b) all or a majority of the issued shares of the Borrower or 5% of
its consolidated assets or 20% of its consolidated revenues is seized,
nationalised, expropriated or compulsorily acquired.
17.13 OWNERSHIP OF THE BORROWER
The Parent ceases to own, directly or indirectly, 100 percent of the
issued share capital of the Borrower.
17.14 THE GROUP'S BUSINESS
Any member of the Group ceases to carry on the business it carries on at
the date hereof or enters into any unrelated business if the assets of
such unrelated business constitute more than 50 percent of the assets of
the Group after giving effect to such unrelated business.
17.15 REPUDIATION
The Borrower repudiates any Finance Document or the EDB Loan Agreement
or does or causes to be done any act or thing evidencing an intention to
repudiate any Finance Document or the EDB Loan Agreement.
17.16 ILLEGALITY
At any time it is or becomes unlawful for the Borrower to perform or
comply with any or all of its obligations under any Finance Document or
the EDB Loan Agreement or any of the obligations of, or any of the
security created by, the Borrower thereunder are not or cease to be
legal, valid, binding and enforceable.
17.17 MERGER
The Parent merges or consolidates with any other person (where the
Parent is not the surviving company), enters into any demerger
transaction or participates in any other similar type of corporate
reconstruction.
31
17.18 EDB LOAN
17.18.1 The Borrower shall fail to duly and punctually comply with any
of its obligations under the EDB Loan Agreement and such
failure, if capable of remedy, is not remedied within 30 days
after the Bank has given notice to the Borrower requiring the
Borrower to remedy such failure.
17.18.2 Any amendment or waiver is made under the EDB Loan Agreement
without the Bank's prior written consent which relates to change
in the principal amount or currency of the EDB Loan, or a change
in any repayment date, or a reduction in the principal amount
due on any repayment date; or a change in the currency of any
payment of interest in respect of the EDB Loan.
17.19 MATERIAL ADVERSE CHANGE
To the extent not contemplated by any of the foregoing Clause 17.1
(Failure to Pay) to Clause 17.18 (EDB Loan), any event or circumstance
occurs which the Bank reasonably believes might have a material adverse
effect on the ability of the Borrower to perform or comply with its
obligations under any of the Finance Documents or the EDB Loan
Agreement.
17.20 ACCELERATION AND CANCELLATION
During the continuance of an Event of Default (other than an event with
respect to the Borrower described in Clause 17.8 (Insolvency and
Rescheduling), Clause 17.9 (Winding-up) or Clause 17.10 (Execution or
Distress)) and at any time thereafter, the Bank may by notice to the
Borrower:
17.20.1 require the Borrower to procure that the liability of the Bank
under the Bank Guarantee is promptly reduced to zero and/or
declare all or any part of the amounts outstanding and unpaid by
the Borrower under the Finance Documents and all liabilities of
the Borrower thereunder, present or future, matured or
unmatured, contingent or absolute to be immediately due and
payable without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower
(whereupon the same shall become so payable together with
accrued interest thereon and any other sums then owed by the
Borrower thereunder) or declare all such amounts to be due and
payable on demand of the Bank; and/or
17.20.2 declare that any unutilised portion of the Facility shall be
cancelled, whereupon the same shall be cancelled and the
Available Facility shall be reduced to zero; and/or
17.20.3 exercise any rights of the Bank under the Account Charge.
and in the case of any event with respect to the Borrower described in
Clause 17.8 (Insolvency and Rescheduling), 17.9 (Winding-up) or Clause
17.10 (Execution or
32
Distress), the Available Facility shall automatically reduce to zero and
all moneys outstanding and unpaid by the Borrower under the Finance
Documents and all liabilities of the Borrower thereunder, present or
future, matured or unmatured, contingent or absolute shall automatically
become due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower.
17.21 ADVANCES DUE ON DEMAND
If, pursuant to Clause 17.20 (Acceleration and Cancellation), the Bank
declares all or any part of the amounts outstanding and unpaid by the
Borrower under the Finance Documents and all liabilities of the Borrower
thereunder, present or future, matured or unmatured, contingent or
absolute to be due and payable on demand of the Bank, then, and at any
time thereafter, the Bank may by notice to the Borrower:
17.21.1 require repayment of all or such part of such amount on such
date as it may specify in such notice, without presentation,
demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower (whereupon the same shall become
due and payable on the date specified together with accrued
interest thereon and any other sums then owed by the Borrower
thereunder) or withdraw its declaration with effect from such
date as it may specify; and/or
17.21.2 select as the duration of any Interest Period which begins while
such declaration remains in effect a period of six months or
less.
18. COMMITMENT COMMISSION AND FEES
18.1 COMMITMENT COMMISSION
The Borrower shall pay to the Bank a commitment commission on the amount
of the Available Facility from day to day during the Availability
Period, such commitment commission to be calculated at the rate of 0.25
percent per annum and payable in arrears on the last day of each
successive period of three months which ends during the Availability
Period and on the last day of the Availability Period PROVIDED THAT if
(a) the Class A Security is in full force and effect on the date hereof,
(b) the amount of the Cash Deposits is at least equal to S$50,400,000
and (c) the Class A Security is provided by the Borrower throughout the
Availability Period, the payment of the commitment commission will be
waived.
18.2 CLOSING FEE AND ADMINISTRATION FEE
The Borrower shall pay to the Bank the closing fee and administration
fee specified in the commitment letter dated August 12, 1999 from the
Bank to the Borrower and the Parent at the times, and in the amounts,
specified in such letter.
33
19. COSTS AND EXPENSES
19.1 TRANSACTION EXPENSES
The Borrower shall, from time to time on demand of the Bank, reimburse
the Bank for all reasonable costs and expenses (including legal fees)
together with any VAT thereon incurred by it in connection with the
negotiation, preparation and execution of the Finance Documents, any
change of Security requested pursuant to Clause 13 (Security), any other
document referred to in the Finance Documents and the completion of the
transactions therein contemplated.
19.2 PRESERVATION AND ENFORCEMENT OF RIGHTS
The Borrower shall, from time to time on demand of the Bank, reimburse
the Bank for all costs and expenses (including legal fees) on a full
indemnity basis together with any VAT thereon incurred in or in
connection with the preservation and/or enforcement of any of the rights
of the Bank under the Finance Documents and any other document referred
to in the Finance Documents (including, without limitation, in the event
that the Bank reasonably believes that an Event of Default or Potential
Event of Default has occurred, any costs and expenses relating to any
investigation thereof or any steps necessary or desirable in connection
with any proposal for remedying or otherwise resolving such Event of
Default or Potential Event of Default).
19.3 STAMP TAXES
The Borrower shall pay all stamp, registration and other taxes to which
this Agreement, any other document referred to in this Agreement or any
judgment given in connection therewith is or at any time may be subject
and shall, from time to time on demand of the Bank, indemnify the Bank
against any liabilities, costs, claims and expenses resulting from any
failure to pay or any delay in paying any such tax.
19.4 AMENDMENT COSTS
If the Borrower requests any amendment, waiver or consent then the
Borrower shall, within five Business Days of demand by the Bank,
reimburse the Bank for all reasonable costs and expenses (including
legal fees) together with any VAT thereon incurred by such person in
responding to or complying with such request.
20. DEFAULT INTEREST AND BREAK COSTS
20.1 DEFAULT INTEREST PERIODS
If any sum due and payable by the Borrower hereunder is not paid on the
due date therefor in accordance with Clause 23 (Payments) or if any sum
due and payable by the Borrower under any judgment of any court in
connection herewith is not paid on the date of such judgment, the period
beginning on such due date or, as the case may
34
be, the date of such judgment and ending on the date upon which the
obligation of the Borrower to pay such sum is discharged shall be
divided into successive periods, each of which (other than the first)
shall start on the last day of the preceding such period and the
duration of each of which shall (except as otherwise provided in this
Clause 20) be selected by the Bank.
20.2 DEFAULT INTEREST
An Unpaid Sum shall bear interest during each Interest Period in respect
thereof at the rate per annum which is two percent per annum above the
rate per annum equal to the cost to the Bank of funding such Unpaid
Amount from whatever sources it may select.
20.3 PAYMENT OF DEFAULT INTEREST
Any interest which shall have accrued under Clause 20.2 (Default
Interest) in respect of an Unpaid Sum shall be due and payable and shall
be paid by the Borrower on demand of the Bank.
21. BORROWER'S INDEMNITIES
21.1 BORROWER'S INDEMNITY
The Borrower undertakes to indemnify the Bank against:
21.1.1 any cost, claim, loss, expense (including legal fees) or
liability (including, without limitation, any break costs)
together with any VAT thereon, whether or not reasonably
foreseeable, which it may sustain or incur as a consequence of
the occurrence of any Event of Default; and
21.1.2 any cost or loss (including, without limitation, any break
costs) it may suffer or incur as a result of its issuing or
making arrangements to issue the Bank Guarantee requested by the
Borrower but not made by reason of the operation of any one or
more of the provisions hereof.
21.2 CURRENCY INDEMNITY
If any sum (a "SUM") due from the Borrower under this Agreement or any
other Finance Document is paid in a currency (the "FIRST CURRENCY")
other than the currency (the "SECOND CURRENCY") in which such Sum is
payable or any order or judgment given or made in relation hereto has to
be converted from the First Currency into the Second Currency, the
Borrower shall indemnify the Bank from and against any loss suffered or
incurred as a result of any discrepancy between (a) the rate of exchange
used for such purpose to convert such Sum from the First Currency into
the Second Currency and (b) the rate or rates of exchange available to
the Bank at the time of receipt of such Sum.
35
22. CURRENCY OF ACCOUNT AND PAYMENT
The Singapore dollar is the currency of account and payment for each and
every sum at any time due from the Borrower hereunder, PROVIDED THAT:
22.1.1 each payment in respect of costs and expenses shall be made in
the currency in which the same were incurred; and
22.1.2 each payment pursuant to Clause 7.2 (Tax Indemnity), Clause 9.1
(Increased Costs) or Clause 21.1 (Borrower's Indemnity) shall be
made in the currency specified by the Bank.
23. PAYMENTS
23.1 PAYMENTS TO THE BANK
On each date on which this Agreement requires an amount to be paid by
the Borrower, the Borrower shall make the same available to the Bank for
value on the due date at such time and in such funds and to such account
with such bank as the Bank shall specify from time to time.
23.2 ALTERNATIVE PAYMENT ARRANGEMENTS
If, at any time, it shall become impracticable (by reason of any action
of any governmental authority or any change in law or any similar event)
for the Borrower to make any payments in the manner specified in Clause
23.1 (Payments to the Bank), then the Borrower may agree with the Bank
alternative arrangements for such payments to be made, PROVIDED THAT, in
the absence of any such agreement, the Borrower shall be obliged to make
all payments due to the Bank in the manner specified herein.
23.3 NO SET-OFF
All payments required to be made by the Borrower hereunder shall be
calculated without reference to any set-off or counterclaim and shall be
made free and clear of and without any deduction for or on account of
any set-off or counterclaim.
24. SET-OFF
24.1 SET-OFF
The Bank may, from time to time, apply any credit balance to which the
Borrower is entitled on any account of the Borrower with the Bank in
satisfaction of any sum due and payable from the Borrower to the Bank
hereunder but unpaid PROVIDED THAT such rights of set-off will not
extend to any amounts maintained at, or in the possession of, the Bank
that relate to vendor remittances being made by the Bank on behalf of
any member of the Group and which are contained in Account No.
08213004213 or Account No. 01213004213 at the Bank or any sub-account or
successor account
36
thereto. For this purpose, the Bank is authorized to purchase with the
moneys standing to the credit of any such account such other currencies
as may be necessary to effect such application.
24.2 SET-OFF NOT MANDATORY
The Bank shall not be obliged to exercise any right given to it by
Clause 24.1. (Set-off).
25. ASSIGNMENTS
25.1 BINDING AGREEMENT
This Agreement shall be binding upon and enure to the benefit of each
party hereto and its or any subsequent successors and permitted assigns.
25.2 NO ASSIGNMENTS AND TRANSFERS BY THE BORROWER
The Borrower shall not be entitled to assign or transfer all or any of
its rights, benefits and obligations hereunder.
25.3 ASSIGNMENTS BY THE BANK
The Bank may, at any time, assign any of its rights and benefits
hereunder to a bank or financial institution PROVIDED THAT the Bank
shall not make any such assignment of more than 50% of the amount of the
Bank Guarantee without the prior written consent of the Borrower, which
consent shall not be unreasonably withheld or delayed.
25.4 DISCLOSURE OF INFORMATION
The Bank may disclose to any person:
25.4.1 to (or through) whom the Bank assigns (or may potentially
assign) all or any of its rights, benefits and obligations
hereunder;
25.4.2 with (or through) whom the Bank enters into (or may potentially
enter into) any sub-participation in relation to, or any other
transaction under which payments are to be made by reference to,
this Agreement or the Borrower; or
25.4.3 to whom information may be required to be disclosed by any
applicable law,
such information about the Borrower or the Group and this Agreement as
the Bank shall consider appropriate PROVIDED THAT the Bank shall notify
the Borrower of any such disclosure and PROVIDED FURTHER THAT prior to
the Bank disclosing any information which is subject to a
confidentiality undertaking by the Bank in favor of any member of the
Group, the Bank shall first obtain an equivalent confidentiality
undertaking from the proposed recipient of such information except in
connection with any such disclosure pursuant to Clause 25.4.3.
37
26. EVIDENCE OF DEBT
26.1 EVIDENCE OF DEBT
The Bank shall maintain in accordance with its usual practice accounts
evidencing the amounts from time to time paid by it under the Bank
Guarantee and owing to it hereunder.
26.2 PRIMA FACIE EVIDENCE
In any legal action or proceeding arising out of or in connection with
this Agreement, the entries made in the accounts maintained pursuant to
Clause 26.1 (Evidence of Debt) shall be prima facie evidence of the
existence and amounts of the specified obligations of the Borrower.
26.3 CERTIFICATES OF THE BANK
A certificate of the Bank as to (a) the amount by which a sum payable to
it hereunder is to be increased under Clause 7.1 (Tax Gross-up), (b) the
amount for the time being required to indemnify it against any such
cost, payment or liability as is mentioned in Clause 7.2 (Tax
Indemnity), Clause 9.1 (Increased Costs) or Clause 21.1 (Borrower's
Indemnity) shall, in the absence of manifest error, be prima facie
evidence of the existence and amounts of the specified obligations of
the Borrower.
27. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
27.1 REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of the
Bank any right or remedy hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any right or remedy prevent
any further or other exercise thereof or the exercise of any other right
or remedy. The rights and remedies herein provided are cumulative and
not exclusive of any rights or remedies provided by law.
27.2 PARTIAL INVALIDITY
If, at any time, any provision hereof is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, neither
the legality, validity or enforceability of the remaining provisions
hereof nor the legality, validity or enforceability of such provision
under the law of any other jurisdiction shall in any way be affected or
impaired thereby.
28. NOTICES
28.1 COMMUNICATIONS IN WRITING
Each communication to be made hereunder shall be made in writing and,
unless otherwise stated, shall be made by fax or letter.
38
28.2 DELIVERY
Any communication or document to be made or delivered by one person to
another pursuant to this Agreement shall:
28.2.1 if by way of fax (unless that other person has by fifteen days'
notice specified another number) be made to such other person to
the fax number identified with its signature below and shall be
deemed to have been received when transmission has been
completed and receipt has been confirmed by telephone; and
28.2.2 if by way of letter (unless that other person has by fifteen
days' notice specified another address) be delivered to that
other person at the address identified with its signature below
and shall be deemed to have been delivered when left at that
address or, as the case may be, ten days after being deposited
in the post postage prepaid in an envelope addressed to it at
that address,
PROVIDED THAT any communication or document to be made or delivered to
the Bank shall be effective only when received by the Bank.
28.3 ENGLISH LANGUAGE
Each communication and document made or delivered by one party to
another pursuant to this Agreement shall be in the English language or
accompanied by a translation thereof into English certified (by an
officer of the person making or delivering the same) as being a true and
accurate translation thereof.
29. GOVERNING LAW
This Agreement and all matters arising from or connected with it are
governed by the law of the State of New York.
30. JURISDICTION
30.1 SUBMISSION TO JURISDICTION
Each party hereto hereby agrees that any suit, action or proceeding with
respect to this Agreement, the other Finance Documents or any judgment
entered by any court in respect thereof may be brought in the courts of
the State of New York, County of New York or the United States District
Court for the Southern District of New York; and each party hereto
hereby irrevocably submits to the jurisdiction of such courts for the
purpose of any such suit, action, proceeding or judgment. Each party
hereto further submits, for the purpose of any such suit, action,
proceeding or judgment brought or rendered against it, to the
appropriate courts of the jurisdiction of its domicile.
39
30.2 PROCESS AGENT
The Borrower hereby agrees that service of all writs, process and
summonses in any such suit, action or proceeding brought in the State of
New York may be made upon CT Corporation at 0000 Xxxxxxxx, Xxx Xxxx, XX
00000 (or at such other address or at the office of such other
authorized agent as the Borrower may designate by written notice to the
Bank) (the "PROCESS AGENT"), and the Borrower hereby confirms and agrees
that the Process Agent has been duly and irrevocably appointed as its
agent and true and lawful attorney-in-fact in its name, place and stead
to accept such service of any and all such writs, process and summonses,
and agrees that the failure of the Process Agent to give any notice of
any such service of process to the Borrower shall not impair or affect
the validity of such service or of any judgment based thereon. The
Borrower hereby further irrevocably consents to the service of process
in any suit, action or proceeding in such courts by the mailing thereof
by the Bank by registered or certified mail, postage prepaid, at its
address set forth beneath its signature hereto.
30.3 OTHER SERVICE
Nothing herein shall in any way be deemed to limit the ability of the
Bank to serve any such writs, process or summonses in any other manner
permitted by applicable law or to obtain jurisdiction over the Borrower
in such other jurisdictions, and in such manner, as may be permitted by
applicable law.
30.4 WAIVER OF VENUE
The Borrower hereby irrevocably waives any objection that it may now or
hereafter have to the laying of the venue of any suit, action or
proceeding arising out of or relating to this Agreement or any other
Finance Document brought in the courts of the State of New York, County
of New York or the United States District Court for the Southern
District of New York, and hereby further irrevocably waives any claim
that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum.
30.5 WAIVER OF JURY TRIAL
EACH OF THE BORROWER AND THE BANK HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
30.6 NO IMMUNITY
To the extent that the Borrower may be or become entitled, in any
jurisdiction in which judicial proceedings may at any time be commenced
with respect to this Agreement or any other Finance Document, to claim
for itself or its assets or
40
revenues any immunity from suit, court jurisdiction, attachment prior to
judgment, attachment in aid of execution of a judgment, execution of a
judgment or from any other legal process or remedy relating to its
obligations under this Agreement, or any other Finance Document, and to
the extent that in any such jurisdiction there may be attributed such an
immunity (whether or not claimed), the Borrower hereby irrevocably
agrees not to claim and hereby irrevocably waives such immunity to the
fullest extent permitted by the laws of such jurisdiction.
30.7 INTEGRATION
This Agreement, together with the other Finance Documents (but only
paragraphs 5 and 6 of the commitment letter dated August 12, 1999 from
the Bank to the Borrower and the Parent), embodies the entire agreement
and understanding among the Borrower and the Bank, and supersedes all
prior or contemporaneous agreements and understandings of such persons,
verbal or written, relating to the subject matter hereof and thereof.
30.8 COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument and
any of the parties hereto may execute this Agreement by signing any such
counterpart.
41
WITNESS the hands of the duly authorized representatives of the parties hereto
the day and year first before written.
THE BORROWER
MAXTOR PERIPHERALS (S) PTE. LTD.
By:
--------------------------------
Name:
Title:
Address: 00 Xxxxxxxx Xxxx, #00-00
Xxxx Xxxxx
Xxxxxxxxx 000000
Tel: (00) 000-0000
Fax: (00) 000-0000
Attention: X.X. Xxxxx
THE BANK
THE BANK OF NOVA SCOTIA, SINGAPORE BRANCH
By:
--------------------------------
Name:
Title:
Address: #00-00, Xxxxx Xxxxxxxx
00 Xxxxxxx Xxxx
Xxxxxxxxx 000000
Tel: (00) 000-0000
Fax: (00) 000-0000
Attention: Manager
In addition, a copy of all notices shall be sent to:
The Bank of Nova Scotia, Hong Kong Branch
00xx Xxxxx, Xxxxxx Xxxxxx
00 Xxxxxxxxx
Xxxx Xxxx
Tel: (000) 0000-0000
Fax: (000) 0000-0000
Attention: Vice President & Manager
42
SCHEDULE 1
CONDITIONS PRECEDENT
1. A copy, certified as a true and up-to-date copy by an Authorized Signatory
of the Borrower, of its memorandum and articles of association and
certificate of incorporation.
2. A copy, certified as a true and up-to-date copy by an Authorized Signatory
of the Borrower, of a board resolution of the Borrower approving the
execution, delivery and performance of the Finance Documents and the EDB
Loan Agreement and the terms and conditions hereof and authorising a named
person or persons to sign the Finance Documents and any documents to be
delivered by the Borrower pursuant hereto.
3. A certificate of an Authorized Signatory of the Borrower setting out the
names and signatures of the persons authorized to sign, on behalf of the
Borrower, the Finance Documents and any documents to be delivered by the
Borrower pursuant hereto.
4. A certificate of an Authorized Signatory of the Borrower confirming that
utilization of the Facility would not breach any restriction on its
borrowing powers.
5. A copy, certified as a true copy by an Authorized Signatory of the
Borrower, of each consent and approval required in connection with the
execution, delivery and performance by the Borrower of the Finance
Documents.
6. An opinion of the Borrower's New York counsel satisfactory in form and
substance to the Bank.
7. An opinion of the Borrower's Singapore counsel satisfactory in form and
substance to the Bank.
8. An opinion of Xxxxxxxx Chance, counsel to the Bank.
9. A copy, certified as a true copy by an Authorized Signatory of the
Borrower, of the Original Financial Statements of the Borrower.
10. A copy, certified as a true copy by an Authorized Signatory of the Parent,
of the Original Financial Statements of the Parent.
11. Evidence that the fees, costs and expenses required to be paid by the
Borrower pursuant to Clause 18.1 (Commitment Commission), Clause 18.2
(Closing Fee and Administration Fee), Clause 19.1 (Transaction Expenses)
and 19.3 (Stamp Taxes) have been paid.
12. Evidence that CT Corporation has agreed to act as the agent of the Borrower
for the service of process in New York.
43
13. Evidence that the Cash Deposits have been deposited with the Account Bank
at least one day prior to the Utilization Date.
14. A duly executed copy of the Account Charge.
15. A copy, certified as a true and up-to-date copy by an Authorized Signatory
of the Borrower, of the EDB Offer Letter and the acceptance thereof by the
Borrower.
16. A duly executed copy of the EDB Loan Agreement and the letter dated
September 6, 1999 from Xxxxx Sim, Director, Electronics at EDB, to XX
Xxxxx, Vice President, Finance at the Borrower, each certified as a true
and up-to-date copy by an Authorized Signatory of the Borrower.
17. A copy of the certificate of Pioneer Status, Certificate No. 1228, issued
by the Ministry of Trade on June 3, 1998, certified as a true and
up-to-date copy by an Authorized Signatory of the Borrower.
44
SCHEDULE 2
UTILIZATION REQUEST
From: Maxtor Peripherals (S) Pte. Ltd.
To: The Bank of Nova Scotia, Singapore Branch
Dated:
Dear Sirs,
1. We refer to the agreement (the "Facility Agreement") dated [ ] 1999 and
made between Maxtor Peripherals (S) Pte. Ltd. as borrower and The Bank of
Nova Scotia, Singapore Branch as bank. Terms defined in the Facility
Agreement shall have the same meaning in this notice.
2. This notice is irrevocable.
3. We hereby give you notice that, pursuant to the Facility Agreement and on
[date of proposed utilization], we wish the Bank to issue a Bank Guarantee
in the aggregate amount of S$[ ] upon the terms and subject to the
conditions contained therein.
4. We confirm that, at the date hereof, no Event of Default or Potential Event
of Default is continuing.
Yours faithfully
-----------------------------
Authorized Signatory
for and on behalf of
Maxtor Peripherals (S) Pte. Ltd.
45
SCHEDULE 3
PART 1
FORM OF PARENT COMPLIANCE CERTIFICATE
To: The Bank of Nova Scotia, Singapore Branch
Date:
Dear Sirs,
We refer to an agreement (the "Facility Agreement") dated [ ], 1999 and made
between Maxtor Peripherals (S) Pte. Ltd. and The Bank of Nova Scotia, Singapore
Branch as bank.
Terms defined in the Facility Agreement shall bear the same meaning herein.
We confirm that:
(a) the Consolidated Cash Balance as at [ ] is US$[ ]; and
(b) the Consolidated Tangible Net Worth as at [ ] is US$[ ] which is equal
to at least 50 percent of Consolidated Tangible Net Worth as at July 3,
1999 plus 75 percent of consolidated positive net income for each
successive quarter ended thereafter in respect of which the Parent has
issued its consolidated financial statements pursuant to Clause 14.1
(Annual Statements) or 14.2 (Quarterly Statements) of the Facility
Agreement.
Signed:
------------------- ---------------------------------
Director Director/Senior Financial Officer
46
SCHEDULE 3
PART 2
FORM OF BORROWER COMPLIANCE CERTIFICATE
To: The Bank of Nova Scotia, Singapore Branch
Date:
Dear Sirs,
We refer to an agreement (the "Facility Agreement") dated [ ], 1999 and made
between Maxtor Peripherals (S) Pte. Ltd. and The Bank of Nova Scotia, Singapore
Branch as bank.
Terms defined in the Facility Agreement shall bear the same meaning herein.
We confirm that, as at the date hereof, we are in compliance with all terms and
conditions of the Facility Agreement and the EDB Loan Agreement and no Event of
Default or Potential Event of Default has occurred and is continuing [or
describe any non-compliance or default].
Signed:
------------------- ---------------------------------
Director Director/Senior Financial Officer
47
SCHEDULE 4
FORM OF BANK GUARANTEE
BANK GUARANTEE
To: Singapore Economic Development Board
1. In consideration of your advancing to maxtor peripherals (s) pte.
limited (the "company") a loan facility in an aggregate amount not
exceeding singapore dollars 48,000,000 pursuant and subject to the terms
and conditions of the edb loan agreement ("loan agreement") entered into
by yourselves and the company dated ______________, we the bank whose
name appears in the signature pages hereto unconditionally and
irrevocably guarantee as follows:
(a) We shall, in respect of the principal amount, in the event that
the Company defaults in the repayment of such part or all of the
amount of the Guaranteed Principal Sum which is due or owing to
you under the terms of the Loan Agreement (including due or
owing by reason of your having exercised your rights under
Clause 15 of the Loan Agreement) (the "DEFAULTED PRINCIPAL
AMOUNT"), pay the Defaulted Principal Amount to yourselves
within 3 Business Days of our receipt of such demand, unless
such demand is received on a day which is not a Business Day (as
defined in the Loan Agreement) or after 12 noon on any Business
Day, in which event payment shall be made within 3 Business Days
from the next immediately succeeding Business Day. For the
purposes of this Guarantee, "GUARANTEED PRINCIPAL SUM" shall
mean the principal amount outstanding under the Loan Agreement
from time to time. For the avoidance of doubt, the Guaranteed
Principal Sum shall equal zero upon termination of this
Guarantee pursuant to Clause 10.
(b) We shall, in respect of all interest accrued, due or owing under
the Loan Agreement (including all default interest), in the
event that the Company defaults in the payment of such part or
all of the amount of the interest which is accrued, due or owing
to you under the terms of the Loan Agreement (including due or
owing by reason of your having exercised your rights under
Clause 15 of the Loan Agreement) (the "DEFAULTED INTEREST
AMOUNT"), pay the Defaulted Interest Amount to yourselves within
3 Business Days of our receipt of such demand, unless such
demand is received on a day which is not a Business Day or after
12 noon on any Business Day, in which event payment shall be
made within 3 Business Days from the next immediately succeeding
Business Day.
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2. We also agree as primary obligation to indemnify you on demand from and
against any loss, cost or expense incurred by you as a result of the
obligations guaranteed pursuant hereto being or becoming void, voidable,
unenforceable or ineffective for any reason whatsoever, whether or not
known to you, the amount of such loss being the amount which you would
otherwise have been entitled to recover from us under this guarantee.
3. We represent and warrant that we have full power to enter into this
guarantee and have taken all necessary steps to authorise its execution
on our behalf and have obtained all necessary governmental and other
consents required to enable us to perform our obligations and hereunder
and that this guarantee is legal, valid and binding on us.
4. Subject to clause 10 below, this guarantee and indemnity shall be a
continuing security and accordingly (i) shall extend to cover the
balance of the guaranteed principal sum and interest due at any time
from the company to you and (ii) shall not be discharged by an
intermediate payment or settlement of account between the borrower and
you.
5. It is agreed that a certificate from you as to the amount due from the
company by way of principal or interest under the loan agreement at the
date of such certificate shall, in the absence of manifest error, be
conclusive evidence of the amounts so due for all purposes.
6. You may not assign your rights under this guarantee without our prior
written consent.
7. This guarantee shall not be affected by any change in your constitution
or the constitution of the company.
8. Any demand to be made on us hereunder shall be made by facsimile or
letter to singapore branch, , and shall
specify whether such demand is made in respect of principal or interest
or both.
9. This guarantee shall remain in full force and effect until the earliest
of (i) the date on which you certify that there is no amount owing, due
or payable by the company to you by way of principal under the loan
agreement and no amount of interest accrued but unpaid; (ii) the date on
which this guarantee is specified to be terminated by us pursuant to a
notice given by us following termination of the guarantee issuance
facility entered into between ourselves and the company, such notice to
be given at least [30] days prior to the termination date; and (iii) the
date following two years from the date hereof of (or such later date as
may be mutually agreed among the company, maxtor corporation and
ourselves).
10. This guarantee shall be governed by and construed in accordance with the
laws of the republic of singapore.
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Dated the
--------------------------
Signed:
For and on behalf of
Singapore Branch
[NAME]
