EXHIBIT 10.3
[ALLEN&GLEDHILL LOGO]
ADVOCATES & SOLICITORS
Dated 7th FEBRUARY 2003
AUTOMATED TECHNOLOGY (PHIL.) INC
as Borrower
and
THE DEVELOPMENT BANK OF SINGAPORE LTD
as Lender
FACILITY AGREEMENT
XXXXX & XXXXXXXX
00 XXXXXXXX XXXX
#00-00 XXXX XXXXX
XXXXXXXXX 000000
TABLE OF CONTENTS
CONTENTS PAGE
1. DEFINITIONS AND INTERPRETATION.......... 1
2. THE FACILITY............................ 7
3. PURPOSE................................. 7
4. CONDITIONS OF UTILISATION............... 8
5. UTILISATION............................. 8
6. REPAYMENT............................... 9
7. PREPAYMENT AND CANCELLATION............. 10
8. INTEREST................................ 12
9. INTEREST PERIODS........................ 13
10. CHANGES TO THE CALCULATION OF INTEREST.. 14
11. FEES.................................... 15
12. TAX GROSS UP AND INDEMNITIES............ 15
13. INCREASED COSTS......................... 17
14. OTHER INDEMNITIES....................... 18
15. MITIGATION BY THE LENDER................ 19
16. COSTS AND EXPENSES...................... 19
17. REPRESENTATIONS......................... 19
18. INFORMATION UNDERTAKINGS................ 23
19. GENERAL UNDERTAKINGS.................... 24
20. FINANCIAL COVENANTS..................... 28
21. EVENTS OF DEFAULT....................... 33
22. CHANGES TO THE LENDER................... 36
23. CHANGES TO THE BORROWER................. 37
24. CONDUCT OF BUSINESS BY THE LENDER....... 37
25. PAYMENT MECHANICS....................... 38
26. SET-OFF................................. 39
27. NOTICES................................. 40
28. CALCULATIONS AND CERTIFICATES........... 40
29. PARTIAL INVALIDITY...................... 41
30. REMEDIES AND WAIVERS.................... 41
31. AMENDMENTS AND WAIVERS.................. 41
32. COUNTERPARTS............................ 41
33. GOVERNING LAW........................... 41
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CONTENTS PAGE
34. ENFORCEMENT............................. 41
35. CONFLICT................................ 42
SCHEDULE 1 CONDITIONS PRECEDENT.............. 43
SCHEDULE 2 REQUESTS.......................... 45
ii
THIS AGREEMENT is made on 7TH February 2003 BETWEEN:
(1) AUTOMATED TECHNOLOGY (PHIL.) INC (the "BORROWER"); and
(2) THE DEVELOPMENT BANK OF SINGAPORE LTD (the "LENDER").
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"ACQUISITION EXERCISE" means the acquisition by the Guarantor of all of
the shares in Mayon Capital Limited, Gold Xxxx Limited, Finetech
International Limited and Global Crown Limited, who are immediately prior
to the Acquisition Exercise Date collectively the registered and
beneficial owners of all the issued capital stock of the Borrower.
"ACQUISITION EXERCISE DATE" means the date on which the Acquisition
Exercise is or is to be completed.
"AFFILIATE" means, in relation to any person, a Subsidiary of that person
or a Holding Company of that person or any other Subsidiary of that
Holding Company.
"AUTHORISATION" means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration.
"AVAILABILITY PERIOD" means
(i) in relation to Facility A, the period from and including the date of
this Agreement to and including 30 June 2003; and
(ii) in relation to Facility B, the period from and including the date of
this Agreement to and including the Termination Date (or, if such
date is not a Business Day, the preceding Business Day).
"AVAILABLE FACILITY" means in relation to a Facility, the Lender's
Facility Amount under that Facility minus:
(i) the amount of any outstanding Loans under that Facility; and
(ii) in relation to any proposed Utilisation, the amount of any Loans
that are due to be made under that Facility on or before the
proposed Utilisation Date (but excluding, for the avoidance of
doubt, the amount of a Loan due to be made in relation to such
proposed Utilisation),
plus, in relation to any proposed Utilisation of Facility B only, any
Facility B Loans that are due to be repaid or prepaid on or before the
proposed Utilisation Date.
"BORROWER GROUP" means the Borrower and its Subsidiaries for the time
being.
"BREAK COSTS" means the amount (if any) by which:
(i) the interest which the Lender should have received for the period
from the date of receipt of all or any part of a Loan or Unpaid Sum
to the last day of the current
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Interest Period in respect of that Loan or Unpaid Sum, had the
principal amount or Unpaid Sum received been paid on the last day of
that Interest Period,
exceeds:
(ii) the amount which the Lender would be able to obtain by placing an
amount equal to the principal amount or Unpaid Sum received by it on
deposit with a leading bank in the Singapore interbank market for a
period starting on the Business Day following receipt or recovery
and ending on the last day of the current Interest Period.
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are open for general business in Singapore and, if on that day a
transfer of funds in US Dollars is to be made under this Agreement, New
York City.
"COMPLIANCE CERTIFICATE" means a certificate in form and substance
satisfactory to the Lender.
"EVENT OF DEFAULT" means any event or circumstance specified as such in
Clause 21.
"FACILITY" means Facility A or Facility B.
"FACILITY A" means the term loan facility made available under this
Agreement as described in Clause 2.
"FACILITY A AMOUNT" means US$10,000,000, to the extent not cancelled,
reduced or transferred by the Lender under this Agreement.
"FACILITY A LOAN" means a loan made or to be made under Facility A or the
principal amount outstanding for the time being of that loan.
"FACILITY A REPAYMENT DATES" means each date specified in Clause 6.1.1.
"FACILITY AMOUNT" means Facility A Amount or Facility B Amount.
"FACILITY B" means the uncommitted revolving credit facility made
available under this Agreement as described in Clause 2.
"FACILITY B AMOUNT" means US$3,000,000, to the extent not cancelled,
reduced or transferred by the Lender under this Agreement.
"FACILITY B LOAN" means a loan made or to be made under Facility B or the
principal amount outstanding for the time being of that loan.
"FACILITY OFFICE" means the office or offices through which the Lender
will perform its obligations under this Agreement from time to time, as
agreed by the Borrower.
"FINANCE DOCUMENT" means this Agreement, any Security Document and any
other document designated as such by the Lender and the Borrower.
"FINANCIAL INDEBTEDNESS" means any indebtedness for or in respect of:
(i) moneys borrowed;
(ii) any amount raised by acceptance under any acceptance credit
facility;
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(iii) any amount raised pursuant to any note purchase facility or the
issue of bonds, notes, debentures, loan stock or any similar
instrument;
(iv) the amount of any liability as lessee in respect of any lease or
hire purchase contract which would, in accordance with GAAP, be
treated as a finance or capital lease;
(v) receivables sold or discounted (other than any receivables to the
extent they are sold on a non-recourse basis);
(vi) any amount raised under any other transaction (including any forward
sale or purchase agreement) having the commercial effect of a
borrowing;
(vii) any derivative transaction entered into in connection with
protection against or benefit from fluctuation in any rate or price
(and, when calculating the value of any derivative transaction, only
the marked to market value shall be taken into account);
(viii)shares which are expressed to be redeemable;
(ix) any counter-indemnity obligation in respect of a guarantee,
indemnity, bond, standby or documentary letter of credit or any
other instrument issued by a bank or financial institution; and
(x) the amount of any liability in respect of any guarantee or indemnity
for any of the items referred to in paragraphs (i) to (ix) above.
"GAAP" means (in relation to either Obligor) generally accepted accounting
principles, standards and practices in the jurisdiction of its
incorporation or (for so long as the Borrower has obtained approval from
the relevant governmental authority in its jurisdiction of incorporation
for such purpose) generally accepted accounting principles, standards and
practices in the United States of America.
"GROUP" means the Guarantor and its Subsidiaries for the time being.
"GUARANTEE" means a guarantee from the Guarantor in favour of the Lender,
in such form as may be agreed by the Borrower and the Lender.
"GUARANTOR" means Infiniti Solutions Pte Ltd, a company incorporated in
Singapore, and includes its successors.
"HOLDING COMPANY" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
"INTEREST PERIOD" means, in relation to a Loan, each period determined in
accordance with Clause 9 and, in relation to an Unpaid Sum, each period
determined in accordance with Clause 8.3.
"LOAN" means a Facility A Loan or a Facility B Loan.
"MARGIN" means:
(i) (in relation to a Facility A Loan) 3.5 per cent. per annum; and
(ii) (in relation to a Facility B Loan) three per cent. per annum.
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"MATERIAL ADVERSE EFFECT" means a material adverse effect on:
(i) the financial condition, a material asset or the business of either
Obligor;
(ii) the ability of either Obligor to perform and comply with its payment
or other material obligations under any Finance Document;
(iii) the validity, legality or enforceability of, or the rights or
remedies of the Lender under, any Finance Document; or
(iv) the validity, legality or enforceability of any Security expressed
to be created pursuant to any Security Document or on the priority
and ranking of any of that Security.
"OBLIGOR" means the Borrower or the Guarantor.
"ORIGINAL FINANCIAL STATEMENTS" means:
(i) in relation to the Borrower, the audited consolidated financial
statements of the Borrower for the financial year ended 31 December
2001, and the unaudited management accounts of the Borrower for the
financial year ended 31 December 2002; and
(ii) in relation to the Guarantor, the unaudited consolidated financial
statements of the Group for the financial year ended 31 December
2001 and the unaudited management accounts of the Group for the
period from 1 January 2002 until 30 June 2002.
"PARTY" means a party to this Agreement and includes its successors in
title, permitted assigns and permitted transferees.
"POLITICAL RISK INSURANCE" means any political risk insurance maintained
or to be maintained pursuant to Clause 19.7(ii) below.
"POTENTIAL EVENT OF DEFAULT" means any event or circumstance which would
(with the expiry of a grace period, the giving of notice, the making of
any determination under the Finance Documents or any combination of any of
the foregoing) be an Event of Default.
"POTENTIAL UNLAWFUL EVENT" means any event or circumstance which would
(with the expiry of a grace period, the giving of notice, the making of
any determination under the Finance Documents or any combination of any of
the foregoing) be an Unlawful Event.
"PRI INSURANCE PROCEEDS" means the proceeds of any Political Risk
Insurance received or receivable by an Obligor or received or receivable
by the Lender as loss payee, as assignee or otherwise.
"QUOTATION DAY" means, in relation to any period for which an interest
rate is to be determined, two Business Days before the first day of that
period.
"REPEATING REPRESENTATIONS" means each of the representations set out in
Clauses 17.1, 17.2, 17.4, 17.6, 17.10, 17.11.1, 17.11.2, 17.12.2 and
17.15.
"SECURED OBLIGATIONS" has the meaning ascribed to it in Section 1.02 of
the Security Agreement.
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"SECURED PROPERTIES" means all properties from time to time charged,
pledged, mortgaged or otherwise subject to any Security pursuant to the
Security Documents.
"SECURITY" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement or
arrangement having substantially the same economic effect.
"SECURITY AGREEMENT" means the agreement (governed under Philippines law)
made or to be made between (i) the Borrower, and (ii) the Lender, in such
form as may be agreed by the Borrower and the Lender.
"SECURITY DOCUMENT" means the Guarantee, the Security Agreement and any
other security document that may at any time be given to the Lender as
security for any of the Secured Debt pursuant to or in connection with any
Finance Document.
"SELECTION NOTICE" means a notice substantially in the form set out in
Part II of Schedule 2 given in accordance with Clause 9.
"SIBOR" means, in relation to a Loan or Unpaid Sum, the rate internally
quoted by the Lender to leading banks in the Singapore interbank market,
as of 11:00 a.m. on the Quotation Day for the offering of deposits in US
Dollars in an amount substantially equal to the amount of that Loan or
Unpaid Sum, and for a period comparable to the Interest Period for that
Loan or Unpaid Sum, as the case may be.
"SUBSIDIARY" means a subsidiary within the meaning of section 5 of the
Companies Act, Chapter 50 of Singapore.
"TAX" means any tax, levy, impost, duty or other charge or withholding of
a similar nature (including any penalty or interest payable in connection
with any failure to pay or any delay in paying any of the same).
"TERMINATION DATE" means:
(i) (in relation to Facility A) 31 December 2005; and
(ii) (in relation to Facility B) the date on which Facility B is
cancelled in full by the Lender in accordance with Clause 2.2 or any
other provision of this Agreement.
"TOTAL FACILITY AMOUNTS" means the aggregate of the Facility A Amount and
the Facility B Amount, being US$13,000,000 at the date of this Agreement.
"UNLAWFUL EVENT" means the event or circumstance specified in Clause 7.5.
"UNPAID SUM" means any sum due and payable but unpaid by the Borrower
under the Finance Documents.
"US DOLLARS" and "US$" mean the lawful currency of the United States of
America.
"UTILISATION" means a utilisation of a Facility.
"UTILISATION DATE" means the date of a Utilisation, being the date on
which the relevant Loan is to be made.
"UTILISATION REQUEST" means a notice substantially in the form set out in
Part I of Schedule 2.
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1.2 CONSTRUCTION
1.2.1 Unless a contrary indication appears, any reference in this
Agreement to:
(i) the "LENDER", the "BORROWER", the "GUARANTOR" or "OBLIGOR" or
any "PARTY" shall be construed so as to include their
respective successors in title, permitted assigns and
permitted transferees;
(ii) "ASSETS" includes present and future properties, revenues and
rights of every description;
(iii) a "FINANCE DOCUMENT" or any other agreement or instrument is a
reference to that Finance Document or other agreement or
instrument as amended or novated from time to time;
(iv) "INDEBTEDNESS" includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
(v) a "PERSON" includes any person, firm company, corporation,
government, state or agency of a state or any association,
trust or partnership (whether or not having separate legal
personality) or two or more of the foregoing;
(vi) a "REGULATION" includes any regulation, rule, official
directive, request or guideline (whether or not having the
force of law) of any governmental, intergovernmental or
supranational body, agency, department or regulatory,
self-regulatory or other authority or organisation;
(vii) a provision of law is a reference to that provision as amended
or re-enacted from time to time; and
(viii) a time of day is a reference to Singapore time.
1.2.2 Clause and Schedule headings are for ease of reference only.
1.2.3 Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection with
any Finance Document has the same meaning in that Finance Document
or notice as in this Agreement.
1.2.4 A Potential Event of Default or Potential Unlawful Event is
"continuing" if it has not been remedied or waived and an Event of
Default or Unlawful Event is "continuing" if it has not been
remedied or waived.
1.3 THIRD PARTY RIGHTS
1.3.1 Unless expressly provided to the contrary in this Agreement, a
person who is not a Party has no right under the Contracts (Rights
of Third Parties) Act, Chapter 53B of Singapore to enforce or to
enjoy the benefit of any term of this Agreement.
1.3.2 Notwithstanding any terms of this Agreement, the consent of any
third party is not required for any variation (including any release
or compromise of any liability under) or termination of this
Agreement.
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2. THE FACILITY
2.1 THE FACILITY
Subject to the terms of this Agreement, the Lender makes available to the
Borrower:
2.1.1 a term loan facility in an amount equal to the Facility A Amount;
and
2.1.2 an uncommitted revolving credit facility in an amount equal to the
Facility B Amount.
2.2 RIGHT OF REVIEW
Notwithstanding anything to the contrary, expressed or implied, in any of
the Finance Documents, the Lender may at its absolute discretion, at any
time and from time to time review Facility B and may vary any or all of
the terms and conditions of Facility B and/or cancel the whole or any part
of Facility B at any time. The Lender shall notify the Borrower of any
variation or cancellation of Facility B and such variation or cancellation
shall take effect, in the case of any variation, on the date specified by
the Lender in such notice (which shall be at least 14 days after the date
of the notice) and, in the case of any cancellation, on the date specified
by the Lender in such notice (each such date being at least 30 days after
the date of the notice). On and from the date such notice is given by the
Lender, Facility B or (as the case may be) such part thereof as has been
cancelled shall cease to be available and upon any such cancellation
taking effect, the Borrower shall repay (without any premium, penalty or
(provided such repayment is made on the date specified by the Lender in
the notice referred to above) Break Costs) all amounts outstanding in
respect of each Facility B Loan or (as the case may be) such part thereof
as has been cancelled together with all unpaid accrued interest thereon.
Nothing contained in this Agreement or any of the Finance Documents shall
be deemed to impose on the Lender any obligation either at law or in
equity to make or continue to make Facility B available to the Borrower.
3. PURPOSE
3.1 PURPOSE
3.1.1 The Borrower shall apply all amounts borrowed by it under Facility A
towards the payment of principal and interest due under its existing
bank borrowings and/or the financing of its future capital
expenditure.
3.1.2 The Borrower shall apply all amounts borrowed by it under Facility B
towards its general working capital expenditure.
3.2 MONITORING
The Lender is not bound to monitor or verify the application of any amount
borrowed pursuant to this Agreement.
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4. CONDITIONS OF UTILISATION
4.1 INITIAL CONDITIONS PRECEDENT
The Borrower may not deliver a Utilisation Request unless the Lender has
received all of the documents and other evidence listed in Schedule 1 in
form and substance satisfactory to the Lender. The Lender shall notify the
Borrower promptly upon being so satisfied.
4.2 FURTHER CONDITIONS PRECEDENT
The Lender will only be obliged to comply with Clause 5.4 if on the date
of the Utilisation Request and on the proposed Utilisation Date:
4.2.1 no Event of Default, Unlawful Event, Potential Event of Default,
Potential Unlawful Event or an event (howsoever named or defined in
a Political Risk Insurance) which entitles the insured thereunder to
make a claim under such Political Risk Insurance has occurred and is
continuing or would result from the proposed Loan; and
4.2.2 the Repeating Representations to be made by the Borrower are true in
all material respects.
5. UTILISATION
5.1 DELIVERY OF A UTILISATION REQUEST
The Borrower may utilise a Facility by delivery to the Lender of a duly
completed Utilisation Request not later than 10:00 a.m. five Business Days
(in the case of a Facility A Loan) or two Business Days (in the case of a
Facility B Loan) before the Utilisation Date.
5.2 COMPLETION OF A UTILISATION REQUEST
5.2.1 Each Utilisation Request is irrevocable and will not be regarded as
having been duly completed unless:
(i) it identifies the Facility to be utilised;
(ii) the proposed Utilisation Date is a Business Day within the
Availability Period applicable to that Facility;
(iii) the currency and amount of the Utilisation comply with Clause
5.3;
(iv) the proposed Interest Period complies with Clause 9;
(v) (in the case where that Utilisation Request relates to a
Facility A Loan to be utilised to repay existing bank
borrowings) it is accompanied by a confirmation from the
financial institution(s) to whom such bank borrowings are owed
of the outstanding amount of such borrowings;
(vi) (in the case where that Utilisation Request relates to a
Facility A Loan to be utilised to finance any capital
expenditure) it is accompanied by the confirmatory acceptance
by the Borrower against the quotation of the supplier(s) with
which the Borrower will expend such capital expenditure; and
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(vii) it specifies the account and bank to which the proceeds of the
Utilisation are to be credited.
5.2.2 Only one Loan may be requested in each Utilisation Request.
5.3 AMOUNT
The amount of the proposed Loan must be a minimum of US$100,000 or a
higher multiple thereof for each of Facility A and Facility B or in either
case, if less, the Available Facility.
5.4 AVAILABILITY OF LOAN
If the conditions set out in this Agreement have been met, the Lender
shall make each Loan available through its Facility Office.
6. REPAYMENT
6.1 REPAYMENT OF FACILITY A LOANS
6.1.1 The Facility A Loans outstanding at the end of the Availability
Period for Facility A shall be repaid on the following dates in the
following amounts (provided that, in the event that the amount of
the Facility A Loans outstanding at the end of the Availability
Period for Facility A is less than US$10,000,000, the amount of each
of the instalments specified below shall be reduced in inverse order
of maturity):
Facility A Repayment Date Repayment Instalment
30 September 2003 US$ 500,000
31 December 2003 US$ 500,000
31 March 2004 US$ 500,000
30 June 2004 US$ 500,000
30 September 2004 US$ 1,000,000
31 December 2004 US$ 1,000,000
31 March 2005 US$ 1,000,000
30 June 2005 US$ 1,000,000
30 September 2005 US$ 2,000,000
Termination Date US$ 2,000,000
6.1.2 The Borrower may not reborrow any part of Facility A which is
repaid.
6.2 REPAYMENT OF FACILITY B LOANS
6.2.1 Subject to Clauses 2.1.2 and 25.4, the Borrower shall repay each
Facility B Loan on the last day of its Interest Period.
6.2.2 All Facility B Loans shall be repaid on the Termination Date.
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7. PREPAYMENT AND CANCELLATION
7.1 ILLEGALITY
If, at any time after the date of this Agreement, it becomes unlawful in
any applicable jurisdiction for the Lender to perform any of its
obligations as contemplated by this Agreement or to fund or maintain any
Loan or any part thereof:
7.1.1 the Lender shall promptly notify the Borrower upon becoming aware of
that event;
7.1.2 upon the Lender notifying the Borrower, the Facility or (as the case
may be) such affected part thereof will be immediately cancelled
without any premium or penalty; and
7.1.3 the Borrower shall repay the Loans or (as the case may be) such
affected part thereof accompanied by any Break Costs but without any
premium or penalty on the date specified by the Lender in the notice
delivered to the Borrower (being no earlier than the last day of any
applicable grace period permitted by law).
7.2 DEEMED CANCELLATION
Any part of Facility A which remains undrawn on the last day of the
Availability Period for Facility A shall be deemed to have been cancelled
by the Borrower on that day.
7.3 VOLUNTARY PREPAYMENT OF FACILITY A LOANS
7.3.1 The Borrower may, if it gives the Lender not less than five Business
Days' prior notice, prepay the whole or any part of the principal
amount outstanding in respect of Facility A (but, if in part, being
a minimum amount of US$500,000 or any higher integral multiple
thereof) on any Facility A Repayment Date.
7.3.2 Any prepayment of Facility A may only be made after the date falling
12 months from the first Utilisation Date of a Facility A Loan.
7.3.3 Any prepayment under this Clause 7.3 or Clauses 7.1, 7.4, 7.6 or any
other provision of this Agreement shall satisfy the obligations
under Clause 6.1 in inverse chronological order.
7.4 PREPAYMENT WITH CAUSE
If (i) the Borrower becomes obliged to pay any amount for the account of
the Lender under Clause 13.1 or an alternative basis is not agreed with
the Lender pursuant to Clause 10.2.1 within the 30 day period referred to
in Clause 10.2.1, and (ii) the Borrower gives to the Lender not less than
14 days' notice of the date of prepayment, the Borrower may prepay all
(but not part only) of the Loans without premium or penalty at any time.
Upon the Lender receiving that notice, the Facilities (if any) shall be
cancelled. Any such prepayment must be accompanied by accrued interest on
the Loans and by any Break Costs.
7.5 UNLAWFULNESS
If, at any time, it is or becomes unlawful for an Obligor to perform any
of its obligations under the Finance Documents, the Lender may by written
notice to the Borrower:
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7.5.1 cancel the Facility (or any part thereof) whereupon it shall
immediately be cancelled;
7.5.2 declare that all or part of the Loans, together with accrued
interest, and all other amounts accrued or outstanding under the
Finance Documents in relation to such Loans be immediately due and
payable, whereupon they shall become immediately due and payable;
and/or
7.5.3 declare that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand by the
Lender.
7.6 MANDATORY PREPAYMENT
The Borrower irrevocably authorises the Lender to apply any PRI Insurance
Proceeds received by the Lender in prepayment of first, the Facility A
Loans and secondly, the Facility B Loans, together with accrued interest
thereon and any Break Costs and if either Obligor has received any such
PRI Insurance Proceeds, the Borrower shall ensure that such PRI Insurance
Proceeds are immediately applied as aforesaid. Notwithstanding the
foregoing, if:
7.6.1 either Obligor delivers to the Lender notice in writing that it
intends to obtain additional Political Risk Insurance for an amount
specified in such notice; and
7.6.2 either Obligor delivers to the Lender, within seven Business Days of
its receipt of such PRI Insurance Proceeds or, as the case may be,
notification from the Lender of the Lender's receipt of such PRI
Insurance Proceeds, a copy of such additional Political Risk
Insurance naming the Lender as sole loss payee in accordance with
Clause 19.7 (in form and substance acceptable to the Lender)
together with the receipts for the most recent premium; and
7.6.3 no Event of Default or Unlawful Event has occurred and is
continuing,
then the amount of the Loans shall only be prepaid by an amount equal to
the PRI Insurance Proceeds so received less the amount specified in the
notice delivered by that Obligor pursuant to Clause 7.6.1 above. The
balance, if any, of the PRI Insurance Proceeds remaining with the Lender
after such application as aforesaid shall, at the request of the
Guarantor, be returned to the Borrower to be utilised solely for the
purposes of equipment and machinery purchases by the Borrower, including
but not limited to, replacement of equipment and machinery.
7.7 RESTRICTIONS
7.7.1 Any notice of cancellation or prepayment given by either Party under
this Clause 7 shall be irrevocable and, unless a contrary indication
appears in this Agreement, shall specify the date or dates upon
which the relevant cancellation or prepayment is to be made and the
amount of that cancellation or prepayment.
7.7.2 Any prepayment under this Agreement shall be made together with:
(i) accrued interest on the amount prepaid;
(ii) (in the case of a prepayment under Clause 7.3) a prepayment
fee equal to the Relevant Percentage of the amount prepaid;
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(iii) Break Costs; and
(iv) any other sum then due by the Borrower to the Lender under
this Agreement in relation to the amount prepaid.
For the purposes of this Clause 7.7.2, "Relevant Percentage" means
(a) in the case of any prepayment made at any time after the date
falling 12 months from the first Utilisation Date of a Facility A
Loan and before the date falling 24 months from such first
Utilisation Date, 0.5 per cent. and (b) at any time after the date
falling 24 months from such first Utilisation Date, 0.375 per cent.
7.7.3 The Borrower may not reborrow any part of Facility A which is
prepaid.
7.7.4 The Borrower shall not repay or prepay all or any part of the Loans
or cancel all or any part of the Facility except at the times and in
the manner expressly provided for in this Agreement.
7.7.5 No amount of the Total Facility Amounts cancelled under this
Agreement may be subsequently reinstated.
8. INTEREST
8.1 CALCULATION OF INTEREST
The rate of interest on each Loan for each Interest Period is the
percentage rate per annum which is the aggregate of the applicable:
8.1.1 Margin; and
8.1.2 SIBOR.
8.2 PAYMENT OF INTEREST
Subject to Clause 9.1, the Borrower shall pay accrued interest on each
Loan on the last day of each Interest Period in relation thereto.
8.3 DEFAULT INTEREST
8.3.1 If the Borrower fails to pay any amount payable by it under a
Finance Document on its due date, interest shall accrue on the
overdue amount from the due date up to the date of actual payment
(both before and after judgment) at a rate which, subject to Clause
8.3.2 below, is the sum of three per cent and the rate which would
have been payable if the overdue amount had, during the period of
non-payment, constituted a Loan for successive Interest Periods,
each of a duration selected by the Lender (acting reasonably). Any
interest accruing under this Clause 8.3 shall be immediately payable
by the Borrower on demand by the Lender.
8.3.2 If any overdue amount consists of all or part of a Loan which became
due on a day which was not the last day of an Interest Period
relating to that Loan:
(i) the first Interest Period for that overdue amount shall have a
duration equal to the unexpired portion of the current
Interest Period relating to that Loan; and
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(ii) the rate of interest applying to the overdue amount during
that first Interest Period shall be the sum of three per cent
and the rate which would have applied if the overdue amount
had not become due.
8.3.3 Default interest (if unpaid) arising on an overdue amount will be
compounded with the overdue amount at the end of each Interest
Period applicable to that overdue amount but will remain immediately
due and payable on demand by the Lender.
8.4 NOTIFICATION OF RATES OF INTEREST
The Lender shall promptly notify the Borrower of the determination of a
rate of interest under this Agreement.
9. INTEREST PERIODS
9.1 SELECTION OF INTEREST PERIODS
9.1.1 The Borrower may select an Interest Period for a Loan in the
Utilisation Request for that Loan or (if, in the case of Facility A,
the Loan that has already been borrowed) in a Selection Notice.
9.1.2 Each Selection Notice for a Facility A Loan is irrevocable and must
be delivered to the Lender by the Borrower not later than 10.00 a.m.
two Business Days before the first day of the relevant Interest
Period.
9.1.3 If the Borrower fails to deliver a Selection Notice to the Lender in
accordance with Clause 9.1.2 above, the relevant Interest Period
will be three months.
9.1.4 Subject to this Clause 9, the Borrower may select an Interest Period
of three months or any shorter period agreed between the Borrower
and the Lender.
9.1.5 Any Interest Period for a Facility A Loan which would otherwise
extend beyond a Facility A Repayment Date shall instead end on that
date.
9.1.6 The first Interest Period for a Facility A Loan shall start on the
Utilisation Date of such Facility A Loan and each subsequent
Interest Period shall start on the last day of the preceding
Interest Period of such Loan. Each Interest Period shall end (in the
case of the first Facility A Loan) three months or such shorter
period thereafter, as so selected or agreed pursuant to Clause 9.1.4
and (in the case of the first Interest Period relating to any
subsequent Facility A Loan) on the same date as the then current
Interest Period relating to the first Facility A Loan.
9.1.7 Each Facility B Loan has one Interest Period only.
9.2 NON-BUSINESS DAYS
If an Interest Period would otherwise end on a day which is not a Business
Day, that Interest Period will instead end on the next Business Day.
9.3 CONSOLIDATION OF FACILITY A LOANS
If two or more Interest Periods:
9.3.1 relate to Facility A Loans; and
9.3.2 end on the same date,
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those Facility A Loans will be consolidated into, and treated as, a single
Facility A Loan on the last day of the Interest Period relating thereto.
10. CHANGES TO THE CALCULATION OF INTEREST
10.1 MARKET DISRUPTION
10.1.1 If a Market Disruption Event occurs in relation to a Loan for any
Interest Period, then the rate of interest on that Loan for the
Interest Period shall be the rate per annum which is the sum of:
(i) the Margin; and
(ii) the rate notified to the Borrower by the Lender as soon as
practicable and in any event at least one Business Day
before interest is due to be paid in respect of that
Interest Period, to be that which expresses as a percentage
rate per annum the cost to the Lender of funding that Loan
from whatever source it may reasonably select.
10.1.2 The Lender shall, together with any notification given pursuant
to Clause 10.1.1 above, provide the Borrower with the basis for
determining the rate so notified and confirm to the Borrower that
it has or intends to make similar claims for compensation under
loans denominated in US Dollars granted by the Lender to its
other customer(s) of similar standing which accrue interest based
on the Singapore inter-bank offer rate (provided that the Lender
is entitled to do so under the terms of such loans and subject to
any obligation of confidentiality).
10.1.3 In this Agreement "MARKET DISRUPTION EVENT" means:
(i) before close of business in Singapore on the Quotation Day
for the relevant Interest Period, the Screen Rate is not
available and the Lender is unable to provide a quotation
to determine SIBOR for US Dollars and the relevant Interest
Period; or
(ii) before close of business in Singapore on the Quotation Day
for the relevant Interest Period, the Borrower receives
notification from the Lender that the cost to it of
obtaining matching deposits in the Singapore interbank
market would be in excess of SIBOR due to unavailability of
funds in, or other circumstances generally affecting, the
Singapore inter-bank market (and not circumstances relating
to the Lender or its funding sources).
10.2 ALTERNATIVE BASIS OF INTEREST OR FUNDING
10.2.1 If a Market Disruption Event occurs and the Lender or the
Borrower so requires, the Lender and the Borrower shall enter
into negotiations (for a period of not more than 30 days) with a
view to agreeing a substitute basis for determining the rate of
interest.
10.2.2 Any alternative basis agreed pursuant to Clause 10.2.1 above
shall, with the prior consent of the Lender and the Borrower, be
binding on all Parties. If the Lender or the Borrower so request
(such request not to be made more frequently than once a month so
long as such alternative basis applies), the Parties shall
negotiate with
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each other in good faith to determine whether such alternative
basis shall continue to apply.
10.3 BREAK COSTS
10.3.1 The Borrower shall on demand by the Lender, pay to the Lender its
Break Costs attributable to all or any part of a Loan or Unpaid
Sum being paid by the Borrower on a day other than the last day
of an Interest Period for that Loan or Unpaid Sum.
10.3.2 The Lender shall, as soon as reasonably practicable after a
demand by the Borrower, provide a certificate confirming the
amount of its Break Costs for any Interest Period in which they
accrue.
11. FEES
11.1 COMMITMENT FEE
11.1.1 The Borrower shall pay to the Lender a fee in US Dollars computed
at the rate of 0.5 per cent. per annum on the undrawn portion of
Facility A Amount (insofar as such undrawn portion of Facility A
Amount has not been cancelled) from day to day during the period
commencing from the date of this Agreement to the last day of the
Availability Period for Facility A.
11.1.2 The accrued commitment fee is payable on 31 March, 2003, and on
the last day of the Availability Period for Facility A or, if
Facility A is cancelled in full before the last day of the
Availability Period for Facility A, on the cancelled amount of
the undrawn portion of Facility A at the time the cancellation is
effective.
11.2 FRONT-END FEE
The Borrower shall pay to the Lender a front-end fee of US$65,000 (being
0.50 per cent. of the Total Facility Amounts) on the date of this
Agreement.
12. TAX GROSS UP AND INDEMNITIES
12.1 DEFINITIONS
In this Clause 12:
"TAX CREDIT" means a credit against, relief or remission for, or repayment
of any Tax.
"TAX DEDUCTION" means a deduction or withholding for or on account of Tax
from a payment under a Finance Document.
"TAX PAYMENT" means an increased payment made by the Borrower to the
Lender under Clause 12.2 or a payment under Clause 12.3.
12.2 TAX GROSS-UP
12.2.1 The Borrower shall make all payments to be made by it without any
Tax Deduction, unless a Tax Deduction is required by law, in
which case the amount of the payment due from it shall be
increased to an amount which (after making any Tax Deduction)
leaves an amount equal to the payment which would have been due
if no Tax Deduction had been required.
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12.2.2 The Borrower shall promptly upon becoming aware that it must make
a Tax Deduction (or that there is any change in the rate or the
basis of a Tax Deduction) notify the Lender accordingly.
12.2.3 If the Borrower is required to make a Tax Deduction, it shall
make that Tax Deduction and any payment required in connection
with that Tax Deduction within the time allowed and in the
minimum amount required by law.
12.2.4 Within thirty days of making either a Tax Deduction or any
payment required in connection with that Tax Deduction, the
Borrower shall deliver to the Lender evidence reasonably
satisfactory to the Lender that the Tax Deduction has been made
or (as applicable) any appropriate payment paid to the relevant
taxing authority.
12.3 TAX INDEMNITY
12.3.1 If the Lender is or will be subject to any liability, or required
to make any payment, for or on account of Tax in relation to a
sum received or receivable (or any sum deemed for the purposes of
Tax to be received or receivable) under a Finance Document, then
the Borrower shall (within three Business Days of demand by the
Lender) pay to the Lender an amount equal to the loss, liability
or cost which the Lender determines will be or has been (directly
or indirectly) suffered for or on account of Tax by it in respect
of a Finance Document.
12.3.2 Clause 12.3.1 above shall not apply with respect to any Tax
assessed on the Lender:
(i) under the law of the jurisdiction in which the Lender is
incorporated or, if different, the jurisdiction (or
jurisdictions) in which the Lender is treated as resident
for tax purposes; or
(ii) under the law of the jurisdiction in which the Lender's
Facility Office is located in respect of amounts received
or receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net
income received or receivable (but not any sum deemed to be
received or receivable) by the Lender.
12.3.3 If the Lender makes, or intends to make, a claim under Clause
12.3.1 above, it shall promptly notify the Borrower of the event
which will give, or has given, rise to the claim and giving the
basis for calculating any amount so claimed.
12.4 TAX CREDIT
If the Borrower makes a Tax Payment and the Lender determines that:
12.4.1 a Tax Credit is attributable to that Tax Payment; and
12.4.2 the Lender has obtained, utilised and retained that Tax Credit,
the Lender shall pay an amount to the Borrower which the Lender determines
will leave it (after that payment) in the same after-Tax position as it
would have been in had the Tax Payment not been made by the Borrower.
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12.5 STAMP TAXES
The Borrower shall pay and, within three Business Days of demand,
indemnify the Lender against any cost, loss or liability the Lender incurs
in relation to all stamp duty, registration and other similar Taxes
payable in respect of any Finance Document.
12.6 GOODS AND SERVICES TAX
The Borrower shall also pay to the Lender within three Business Days of
demand, in addition to any amount payable by the Borrower to the Lender
under a Finance Document, any goods and services, value added or similar
Tax payable in respect of that amount (and references in that Finance
Document to that amount shall (where appropriate) be deemed to include any
such Taxes payable in addition to it).
13. INCREASED COSTS
13.1 INCREASED COSTS
13.1.1 Subject to Clause 13.3 the Borrower shall, within three Business
Days of a demand by the Lender, pay the Lender the amount of any
Increased Costs incurred by the Lender as a result of (i) the
introduction of or any change after the date of this Agreement in
(or in the interpretation, administration or application of) any
law or regulation of the Philippines, Singapore and/or the
jurisdiction of incorporation of the Lender or (ii) compliance
with any law or regulation of the Philippines, Singapore and/or
the jurisdiction of incorporation of the Lender made after the
date of this Agreement.
13.1.2 In this Agreement "INCREASED COSTS" means:
(i) a reduction in the rate of return from the Facility or on
the Lender's overall capital (except on account of Tax on
its overall net income);
(ii) an additional or increased cost; or
(iii) a reduction of any amount due and payable under any Finance
Document,
which is incurred or suffered by the Lender to the extent that it
is attributable to the Lender having entered into this Agreement
or funding or performing its obligations under any Finance
Document.
13.2 INCREASED COST CLAIMS
13.2.1 If the Lender intends to make a claim pursuant to Clause 13.1 it
shall notify the Borrower of the event giving rise to the claim.
13.2.2 The Lender shall, together with any notification given pursuant
to Clause 13.2.1, provide a certificate confirming the amount of
its Increased Costs together with the basis for calculating any
such amount.
13.3 EXCEPTIONS
13.3.1 Clause 13.1 does not apply to the extent any Increased Cost is:
(i) attributable to a Tax Deduction required by law to be made
by the Borrower; or
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(ii) compensated for by Clause 12.3 (or would have been
compensated for under Clause 12.3 but was not so
compensated solely because the exclusion in Clause 12.3.2
applied).
13.3.2 In this Clause 13.3, a reference to a "TAX DEDUCTION" has the
same meaning given to the term in Clause 12.1.
14. OTHER INDEMNITIES
14.1 CURRENCY INDEMNITY
14.1.1 If any sum due from the Borrower under the Finance Documents (a
"SUM"), or any order, judgment or award given or made in relation
to a Sum, has to be converted from the currency (the "FIRST
CURRENCY") in which that Sum is payable into another currency
(the "SECOND CURRENCY") for the purpose of:
(i) making or filing a claim or proof against the Borrower;
(ii) obtaining or enforcing an order, judgment or award in
relation to any litigation or arbitration proceedings,
the Borrower shall as an independent obligation, within three
Business Days of demand, indemnify the Lender against any cost,
loss or liability arising out of or as a result of the conversion
including any discrepancy between (a) the rate of exchange used
to convert that Sum from the First Currency into the Second
Currency and (b) the rate or rates of exchange available to that
person at the time of its receipt of that Sum.
14.1.2 The Borrower waives any right it may have in any jurisdiction to
pay any amount under the Finance Documents in a currency or
currency unit other than that in which it is expressed to be
payable.
14.2 OTHER INDEMNITIES
The Borrower shall, within three Business Days of demand, indemnify the
Lender against any cost, loss or liability incurred by the Lender as a
result of:
14.2.1 the occurrence of any Event of Default, Potential Event of
Default, Unlawful Event or Potential Unlawful Event;
14.2.2 a failure by the Borrower to pay any amount due under a Finance
Document on its due date;
14.2.3 funding, or making arrangements to fund, a Loan requested by the
Borrower in the Utilisation Request but not made by reason of
non-fulfilment of any of the conditions of Clause 4 or 5 or the
Borrower revoking a Utilisation Request (other than by reason of
default or negligence by the Lender alone);
14.2.4 a Loan (or part of a Loan) not being prepaid in accordance with a
notice of prepayment given by the Borrower;
14.2.5 investigating any event which it reasonably believes is an Event
of Default, Potential Event of Default, Unlawful Event or
Potential Unlawful Event; or
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14.2.6 acting or relying on any notice, request or instruction which it
reasonably believes to be genuine, correct and appropriately
authorised.
15. MITIGATION BY THE LENDER
15.1 MITIGATION
15.1.1 The Lender shall, in consultation with the Borrower, take all
reasonable steps to mitigate any circumstances which arise and
which would result in any amount becoming payable under, or
cancelled pursuant to, any of Clause 7.1, Clause 10, Clause 12 or
Clause 13 including (but not limited to) transferring its rights
and obligations under the Finance Documents to another Affiliate
or Facility Office.
15.1.2 Clause 15.1.1 above does not in any way limit the obligations of
the Borrower under the Finance Documents.
15.2 LIMITATION OF LIABILITY
15.2.1 The Borrower shall indemnify the Lender for all costs and
expenses reasonably incurred by the Lender as a result of steps
taken by it under Clause 15.1.
15.2.2 The Lender is not obliged to take any steps under Clause 15.1 if,
in its opinion (acting reasonably), to do so might be prejudicial
to it.
16. COSTS AND EXPENSES
16.1 TRANSACTION EXPENSES
The Borrower shall within three Business Days of demand pay the Lender the
amount of all costs and expenses (including legal fees) reasonably
incurred by it in connection with the negotiation, preparation, printing
and execution of:
16.1.1 this Agreement and any other documents referred to in this
Agreement; and
16.1.2 any other Finance Documents executed after the date of this
Agreement.
16.2 AMENDMENT COSTS
If the Borrower requests an amendment, waiver or consent, the Borrower
shall, within three Business Days of demand, reimburse the Lender for the
amount of all costs and expenses (including legal fees) reasonably
incurred by the Lender in responding to, evaluating, negotiating or
complying with that request.
16.3 ENFORCEMENT COSTS
The Borrower shall, within three Business Days of demand, pay to the
Lender the amount of all costs and expenses (including legal fees)
incurred by the Lender in connection with the enforcement of, or the
preservation of any rights under, any Finance Document.
17. REPRESENTATIONS
The Borrower makes the representations and warranties set out in this
Clause 17 to the Lender on the date of this Agreement.
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17.1 STATUS
17.1.1 It is a corporation duly incorporated and validly existing under
the law of its jurisdiction of incorporation.
17.1.2 It and each of the Borrower's Subsidiaries has the power to own
its assets and carry on its business as it is being conducted.
17.2 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in each Finance Document are
(subject to any general principles of law limiting its obligations which
are specifically referred to in any legal opinion delivered pursuant to
Clause 4 and other general equitable principles and insolvency,
liquidation and other laws affecting creditors' rights generally) legal,
valid, binding and enforceable obligations.
17.3 NON-CONFLICT WITH OTHER OBLIGATIONS
The entry into and performance by it of, and the transactions contemplated
by, the Finance Documents do not and will not conflict with:
17.3.1 any law or regulation applicable to it;
17.3.2 the constitutional documents of any member of the Borrower Group;
or
17.3.3 any agreement or instrument binding upon it or any member of the
Borrower Group or any assets of it or any member of the Borrower
Group to an extent or in a manner which has or will have a
Material Adverse Effect,
nor (except as provided in any Security Document) result in the existence
of, or oblige it to create, any Security over any of its assets.
17.4 POWER AND AUTHORITY
It has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery of,
the Finance Documents to which it is a party and the transactions
contemplated by those Finance Documents.
17.5 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All Authorisations required or desirable:
17.5.1 to enable it lawfully to enter into, exercise its rights and
comply with its obligations in the Finance Documents to which it
is a party; and
17.5.2 to make the Finance Documents to which it is a party admissible
in evidence in its jurisdiction of incorporation,
have been obtained or effected and are in full force and effect (save for
any stamp duty payable on the Financing Documents which shall be paid
within any applicable grace period).
17.6 GOVERNING LAW AND ENFORCEMENT
17.6.1 The choice of Singapore law as the governing law of this
Agreement will be recognised and enforced in its jurisdiction of
incorporation.
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17.6.2 Any judgment against the Borrower obtained in Singapore in
relation to this Agreement will, subject to compliance with the
appropriate civil procedures to enforce such judgement
(particularly Section 48 of Rule 39 and Section 24 of Rule 132 of
the Rules of Court of the Philippines), be enforceable in the
Philippines unless, with respect to the action in which the
foreign judgement was rendered, there is evidence of want of
jurisdiction, want of notice to the Borrower, collusion, fraud or
clear mistake of law or fact, or if such judgement is found to be
contrary to the laws, customs and public policy of the
Philippines.
17.7 DEDUCTION OF TAX
It is not required under the law of its jurisdiction of incorporation to
make any deduction for or on account of Tax from any payment it may make
under any Finance Document subject as stated in any legal opinion
delivered pursuant to Clause 4.
17.8 NO FILING OR STAMP TAXES
Under the law of its jurisdiction of incorporation, it is not necessary
that the Finance Documents be filed, recorded or enrolled with any court
or other authority in that jurisdiction or that any stamp, registration or
similar tax be paid on or in relation to the Finance Documents or the
transactions contemplated by the Finance Documents subject as stated in
any legal opinion delivered pursuant to Clause 4.
17.9 NO DEFAULT
17.9.1 No Event of Default or Unlawful Event is continuing or might
reasonably be expected to result from the making of any
Utilisation.
17.9.2 No other event or circumstance is outstanding which constitutes a
default under any other agreement or instrument which is binding
on it or any of the Borrower's Subsidiaries or to which its (or
the Borrower's Subsidiaries) assets are subject which might have
a Material Adverse Effect.
17.10 NO MISLEADING INFORMATION
17.10.1 So far as it is aware (after making all due enquiry), any factual
information provided by it in relation to any Finance Document
was true and accurate in all material respects as at the date it
was provided or as at the date (if any) at which it is stated.
17.10.2 So far as it is aware (after making all due enquiry), nothing has
occurred or been omitted from the factual information referred to
in Clause 17.10.1 above and no information has been given or
withheld that results in that information being untrue or
misleading in any material respect.
17.11 FINANCIAL STATEMENTS
17.11.1 The Original Financial Statements were prepared in accordance
with GAAP consistently applied.
17.11.2 Its Original Financial Statements fairly represent its
consolidated financial condition and operations as at the end of
and for the relevant financial year.
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17.11.3 There has been no material adverse change in its business or
financial condition since 31 December 2002.
17.12 PARI PASSU RANKING
17.12.1 Each Security Document creates (or, once entered into, will
create) in favour of the Lender the Security which it is
expressed to create with the ranking and priority it is expressed
to have except as may be described in any legal opinion delivered
pursuant to Clause 4 and subject to the Security referred to in
Clause 19.3.3.(ii) below.
17.12.2 Without limiting Clause 17.12.1 above, its payment obligations
under the Finance Documents rank at least pari passu with the
claims of all its other unsecured and unsubordinated creditors,
except for obligations mandatorily preferred by the law in its
place of incorporation applying to companies generally.
17.13 TITLE
It has good title to the assets subject to the Security created by it
pursuant to any Security Document, free from all Security except the
Security created pursuant to, or permitted by, the Finance Documents.
17.14 WINDING-UP
No meeting has been convened for the winding-up of it or any of the
Borrower's Subsidiaries or for the appointment of a receiver, trustee,
judicial manager, administrator, administrative receiver, compulsory
manager or other similar officer of it, any of the Borrower's Subsidiaries
or any of their respective assets, no such step is intended by it or any
of its Subsidiaries and, so far as it is aware, no petition, application
or the like is outstanding for the winding-up of it or any of its
Subsidiaries or for the appointment of a receiver, trustee, judicial
manager, administrator, administrative receiver, compulsory manager or
other similar officer of it, any of its Subsidiaries or any of their
respective assets or any of them.
17.15 IMMUNITY
Neither it nor any of its assets is entitled to immunity from suit,
execution, attachment or other legal process and in any proceedings taken
in the Philippines or Singapore in relation to the Finance Documents, it
will not be entitled to claim immunity for itself or any of its assets
arising from suit, execution or other legal process.
17.16 ACQUISITION
The Acquisition Exercise has been completed on 20 December, 2002.
17.17 REPETITION
The Repeating Representations are deemed to be made by the Borrower by
reference to the facts and circumstances then existing at all times during
the continuance of this Agreement.
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18. INFORMATION UNDERTAKINGS
18.1 The undertakings in this Clause 18 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Facility is in force.
18.2 FINANCIAL STATEMENTS
The Borrower shall supply to the Lender:
18.2.1 as soon as the same become available, but in any event within 180
days after the end of each of its financial years, certified true
copies of its audited consolidated financial statements for that
financial year;
18.2.2 as soon as the same become available, but in any event within 90
days after the end of each half of each of its financial years,
certified true copies of its unaudited consolidated financial
statements for that financial half year;
18.2.3 as soon as the same become available, but in any event within 180
days after the end of each of the financial years of the
Guarantor, certified true copies of the audited consolidated
financial statements of the Guarantor for that financial year;
and
18.2.4 as soon as the same become available, but in any event within 90
days after the end of each half of each of the financial years of
the Guarantor, certified true copies of the unaudited
consolidated financial statements of the Guarantor for that
financial half year.
18.3 COMPLIANCE CERTIFICATE
18.3.1 The Borrower shall supply to the Lender, with each set of
financial statements delivered pursuant to Clause 18.1, a
Compliance Certificate setting out (in reasonable detail)
computations as to compliance with Clause 20 as at the date as at
which those financial statements were drawn up.
18.3.2 Each Compliance Certificate shall be signed by two directors of
the Borrower.
18.4 REQUIREMENTS AS TO FINANCIAL STATEMENTS
18.4.1 Each set of financial statements delivered by the Borrower
pursuant to Clause 18.1 shall be certified by a director of the
Borrower or (as the case may be) the Guarantor as fairly
representing its consolidated financial condition and operations
as at the end of and for the period in relation to which those
financial statements were drawn up.
18.4.2 The Borrower shall procure that each set of financial statements
delivered pursuant to Clause 18.1 is prepared using GAAP.
18.5 INFORMATION: MISCELLANEOUS
The Borrower shall supply to the Lender:
18.5.1 promptly upon becoming aware of them, the details of any
litigation, arbitration or administrative proceedings which are
current, or pending against it, the Guarantor or any other member
of the Borrower Group, and which might, if adversely determined,
have a Material Adverse Effect; and
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18.5.2 promptly, such further information (other than information of a
confidential or proprietary nature or in respect of which
disclosure is prohibited pursuant to any law or directive to
which the Borrower or the Guarantor is subject) regarding the
financial condition, business and operations of itself, the
Guarantor or any other member of the Borrower Group as the Lender
may reasonably request.
18.6 NOTIFICATION OF DEFAULT
18.6.1 The Borrower shall notify the Lender of any Event of Default or
Unlawful Event which is continuing (and the steps, if any, being
taken to remedy it) promptly upon becoming aware of its
occurrence. The Borrower shall also notify the Lender of any
Potential Event of Default or Potential Unlawful Event which is
continuing (and the steps, if any, being taken to remedy it) and
which, in the reasonable opinion of the Borrower, is materially
adverse to its operations or would affect its ability to fulfil
its obligations under this Agreement, promptly upon becoming
aware of its occurrence
18.6.2 Promptly upon a request by the Lender, the Borrower shall supply
to the Lender a certificate signed by two of its directors or
senior officers on its behalf certifying that, so far as it is
aware and (if applicable) except as previously notified to the
Lender or waived by the Lender, no Event of Default or Unlawful
Event and no Potential Event of Default or Potential Unlawful
Event which, in the reasonable opinion of the Borrower, is
materially adverse to its operations or would affect its ability
to fulfil its obligations under this Agreement, has occurred and
is continuing (or if an Event of Default or Unlawful Event or
Potential Event of Default or Potential Unlawful Event which, in
the reasonable opinion of the Borrower, is materially adverse to
its operations or would affect its ability to fulfil its
obligations under this Agreement, is continuing, specifying the
Event of Default, Potential Event of Default, Unlawful Event or
Potential Unlawful Event and the steps, if any, being taken to
remedy it).
18.7 WINDING-UP
The Borrower will promptly notify the Lender of:
18.7.1 the giving of any notice to convene a general meeting of it for
the passing of a resolution for its winding-up;
18.7.2 the filing of any application to place it under judicial
management;
18.7.3 the filing of any petition for its winding-up,
and any verbal notification so given by it shall be confirmed in writing
within 24 hours thereof.
19. GENERAL UNDERTAKINGS
The undertakings in this Clause 19 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Facility is in force.
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19.1 AUTHORISATIONS
The Borrower shall promptly:
19.1.1 obtain, comply with and do all that is necessary to maintain in
full force and effect; and
19.1.2 supply certified copies to the Lender of,
any Authorisation required under any law or regulation of its jurisdiction
of incorporation to enable it to perform its obligations under the Finance
Documents and to ensure the legality, validity, enforceability or
admissibility in evidence in its jurisdiction of incorporation of any
Finance Document.
19.2 COMPLIANCE WITH LAWS
The Borrower shall comply in all respects with all laws to which it may be
subject, if failure to so comply would materially impair its ability to
perform its obligations under the Finance Documents.
19.3 NEGATIVE PLEDGE
19.3.1 The Borrower shall not (and shall ensure that no other member of
the Borrower Group will), without the prior consent in writing of
the Lender (which shall not be unreasonably withheld), create or
permit to subsist any Security over any of its assets.
19.3.2 The Borrower shall not (and shall ensure that no other member of
the Borrower Group will):
(i) sell, transfer or otherwise dispose of any of its assets on
terms whereby they are or may be leased to or re-acquired
by any other member of the Borrower Group;
(ii) sell, transfer or otherwise dispose of any of its
receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit
of a bank or other account may be applied, set-off or made
subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a
similar effect,
in circumstances where the arrangement or transaction is entered
into primarily as a method of raising Financial Indebtedness or
of financing the acquisition of an asset.
19.3.3 Clauses 19.3.1 and 19.3.2 above do not apply to:
(i) any netting or set-off arrangement entered into by any
member of the Borrower Group in the ordinary course of its
banking arrangements for the purpose of netting debit and
credit balances;
(ii) any existing Security granted by the Borrower in favour of
Rizal Commercial Banking Corp. (RCBC) and/or Banco de Oro
Universal Bank (BDO) which
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shall be discharged within three Business Days after the
date of the first Loan;
(iii) any lien arising by operation of law and in the ordinary
course of trading;
(iv) any Security entered into pursuant to any Finance Document;
or
(v) any Security granted by the Borrower over any asset
acquired by the Borrower to secure the purchase of such
asset or to secure the indebtedness incurred solely for the
purpose of financing the acquisition of such asset,
provided that:
(a) the Borrower shall have given the Lender the first
right of refusal to finance the Borrower's
acquisition of such asset; and
(b) the aggregate purchase price of such assets subject
to Security pursuant to this Clause 19.3.3(v) shall
not exceed US$2,000,000 (or its equivalent).
19.4 DISPOSALS
19.4.1 The Borrower shall not (and shall ensure that no other member of
the Borrower Group will) sell, lease, transfer or otherwise
dispose of all or substantially all of its assets or any part of
such assets which, either alone or when aggregated with all other
disposals required to be taken in account under this Clause
19.4.1, is substantial in relation to its assets or those of
itself and its Subsidiaries taken as a whole or the disposal of
which (either alone or when so aggregated) would have a Material
Adverse Effect.
19.4.2 Clause 19.4.1 above does not apply to any sale, lease, transfer
or other disposal:
(i) made in the ordinary course of trading of the disposing
entity; or
(ii) of assets in exchange for other assets comparable or
superior as to type, value and quality.
19.5 REORGANISATION
The Borrower will not, without the prior consent in writing of the Lender
(such consent not to be unreasonably withheld), undertake or permit any
reorganisation, amalgamation, reconstruction, takeover or any other
schemes of compromise or arrangement affecting its present constitution.
19.6 CHANGE OF BUSINESS
The Borrower shall procure that no substantial change is made to the
general nature of the business of the Borrower or the Borrower Group taken
as a whole from that carried on at the date of this Agreement.
19.7 INSURANCE
The Borrower will (i) at all times effect and maintain with any reputable
insurer or underwriter having a rating of not less than "AA" from Standard
& Poor's insurances against such risks and liabilities customary for
businesses similar to its business and in amounts and on terms
satisfactory to the Lender, including but not limited to insurances
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over the Secured Properties against loss and damage by fire, explosion,
aircraft and other aerial devices and articles dropped therefrom, xxxxx,
xxxxxxx, flooding, burst pipes and tanks, subsidence, malicious damage and
other customary risks and (ii) ensure and procure that the Guarantor will
effect and maintain with any reputable insurer or underwriter having a
rating of not less than "AA" from Standard & Poor's insurances against
political risks of the Philippines in amounts and on terms satisfactory to
the Lender, and will give such information to the Lender regarding such
insurances as the Lender may from time to time require and punctually pay
or procure to be paid all premiums and deliver or procure to be delivered
receipts therefor to the Lender.
Each of such insurances shall:
(a) be taken out in the name of the relevant Obligor;
(b) name the Lender as sole loss payee or beneficiary;
(c) acknowledge that the relevant Obligor is the sole party liable to
pay the premiums in respect thereof;
(d) provide for the insurers or underwriters to give to the Lender at
least 30 days' prior notice of cancellation by reason of non-payment
of calls, premiums or otherwise and allow the Lender an opportunity
of paying such calls or premiums which may be in default; and
(e) provide that they may not be altered or amended without the prior
consent in writing of the Lender.
Each of such insurances shall also contain a notice of assignment signed
in accordance with the relevant policy rules.
19.8 REGISTRATION
The Borrower will ensure that it does not need to obtain US Dollars from
the Philippine banking system to service any amount of debt under this
Agreement and it will promptly, at the request of the Lender (if such
registration is necessary pursuant to any applicable law or regulation or
is required by any applicable governmental authority in the Philippines),
register this Agreement with the Bangko Sentral ng Pilipinas.
19.9 CAPITAL EXPENDITURE
The Borrower shall not make or incur any capital expenditure without the
prior consent in writing of the Lender (such consent not to be
unreasonably withheld) provided that the Borrower may make or incur
capital expenditure in an aggregate amount not exceeding US$4,500,000
during its financial year ending 31 December, 2003.
19.10 POLITICAL RISK EVENT
If any event occurs which entitles the Borrower to make a claim under a
Political Risk Insurance, it shall immediately inform the Lender and shall
take all necessary steps and action to make any such claim.
19.11 FURTHER ASSURANCE
It will from time to time on request by the Lender do or procure the doing
of all such acts and will execute or procure the execution of all such
documents as is or would be
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necessary for giving full effect to each of the Finance Documents or
securing to the Lender the full benefits of all rights, powers and
remedies conferred upon the Lender in any of the Finance Documents.
19.12 CONDITIONS SUBSEQUENT
The Borrower shall:
19.12.1 immediately after any acquisition by it of any real property in
the Philippines, execute a mortgage over such real property in
such form as the Lender may require and do all such acts and
execute all such documents as may be necessary to perfect or give
full effect to such mortgage under all applicable laws;
19.12.2 ensure that immediately after the making of the Facility A Loan
referred to in Clause 5.2.1(v) above which is utilised to repay
its existing bank borrowings, the financial institution(s) to
whom such bank borrowings are owed shall confirm to the Lender
(i) that such bank borrowings have been fully satisfied or
discharged and (ii) that such financial institution(s) shall take
all steps as may be required under applicable laws to discharge
any Security securing such bank borrowings; and
19.12.3 within three Business Days after the making of the Facility A
Loan referred to in Clause 5.2.1(v) above, deliver to the Lender
an acknowledgement of each notice of assignment referred to in
paragraph 2(c) of Schedule 1 signed by the person to whom that
notice was addressed.
19.13 SPECIAL CONSULTANT
If the Lender determines that the Borrower is or will be unable to perform
its obligations under any of the Financing Documents, the Lender may
appoint on the Borrower's behalf or require the Borrower to appoint, a
Special Consultant to conduct an audit of the Borrower or perform such
other duties as the Lender may specify. The Lender may nominate as Special
Consultant an accountant, lawyer, banker, engineer or, with limitation,
any person whom the Lender considers suitably qualified. A Special
Consultant so appointed shall be the agent of the Borrower who shall be
solely responsible for his acts, defaults and remuneration.
20. FINANCIAL COVENANTS
20.1 FINANCIAL CONDITION
The Borrower shall ensure that:
20.1.1 Consolidated Liabilities will not at any time exceed such
percentage of Consolidated Networth as set out below:
(i) as of 30 June 2003, 175 per cent.;
(ii) as of 31 December 2003 and 30 June 2004, 150 per cent.; and
(iii) as of 31 December 2004 and each 30 June and 31 December
falling thereafter for so long as any amount is outstanding
under the Finance Documents or any Facility is in force,
100 per cent;
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20.1.2 The ratio of Consolidated EBITDA less Tax to Consolidated Debt
Service for any Relevant Period will not be less than 1.25 to 1;
20.1.3 Liabilities will not at any time exceed such percentage of
Networth as set out below:
(i) as of 30 June 2003, 175 per cent.;
(ii) as of 31 December 2003 and 30 June 2004, 150 per cent.; and
(iii) as of 31 December 2004 and each 30 June and 31 December
falling thereafter for so long as any amount is outstanding
under the Finance Documents or any Facility is in force,
100 per cent; and
20.1.4 The ratio of EBITDA less Tax to Debt Service for any Relevant
Period will not be less than 1.25 to 1.
20.2 FINANCIAL COVENANT CALCULATIONS
Consolidated Liabilities, Consolidated Networth, Consolidated Debt
Service, Consolidated EBITDA, Debt Service, EBITDA, Liabilities and
Networth shall be calculated and interpreted in accordance with the GAAP
applicable to the Original Financial Statements of the Borrower and shall
be expressed in US Dollars.
20.3 DEFINITIONS
In this Clause 20:
"CONSOLIDATED DEBT SERVICE" means in respect of any Relevant Period, the
aggregate of:
(i) the aggregate amount of interest and any other finance charges
(whether or not paid, payable or capitalised) payable by the
Borrower Group in that Relevant Period in respect of Consolidated
Liabilities adjusted (but without double counting) by deducting
interest income of the Borrower Group in respect of that Relevant
Period to the extent freely distributable to the Borrower Group
in cash, as determined (except as needed to reflect the terms of
this Clause 20) from the financial statements of the Borrower and
Compliance Certificates delivered under Clause 18.1 and Clause
18.2; and
(ii) the aggregate of the scheduled repayments under Facility A and
any other Financial Indebtedness of the Borrower Group (excluding
any indebtedness of any member of the Borrower Group to any other
member of the Borrower Group to the extent permitted hereunder)
falling due during the Relevant Period.
"CONSOLIDATED EBITDA" means, in relation to any Relevant Period, the total
consolidated operating profit of the Borrower Group for that Relevant
Period:
(i) before taking into account:
(a) Interest Expense;
(b) Tax;
(c) any share of the profit of any associated company or
undertaking, except for dividends received in cash by any
member of the Borrower Group; and
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(d) extraordinary and exceptional items; and
(ii) after adding back all amounts provided for depreciation and
amortisation for that Relevant Period,
as determined (except as needed to reflect the terms of this Clause 20
from the financial statements of the Borrower Group and Compliance
Certificates delivered under Clause 18.1 and Clause 18.2.
"CONSOLIDATED LIABILITIES" means, as at any particular time in relation to
the Borrower Group, an amount for the time being including:
(i) bank overdrafts and any part of any other borrowings maturing
within 12 months;
(ii) the principal amount of any bonds or debentures or any other debt
instruments issued by any member of the Borrower Group whether
issued for cash or a consideration other than cash;
(iii) the liabilities of any member of the Borrower Group under any
other liabilities in the nature of borrowings;
(iv) all other indebtedness whatsoever for borrowed moneys;
(v) current creditors, dividends, and taxation payable within 12
months;
(vi) the principal amount raised by acceptances under any acceptance
credit in favour of any member of the Borrower Group;
(vii) the face amount of any bills of exchange (other than cheques) or
other instruments upon which any member of the Borrower Group is
liable as drawer, acceptor or endorser;
(viii) all actual and contingent liabilities of whatsoever nature of any
member of the Borrower Group in respect of borrowed moneys
including, without limitation, the maximum premium payable on a
redemption of any debenture or other indebtedness of any member
of the Borrower Group and all actual and contingent liabilities
of any other person (including the par value of any shares and
the principal amount of any debentures of any person) to the
extent that such liabilities, shares or debentures are directly
or indirectly guaranteed or secured by or are, directly or
indirectly, the subject of an indemnity given by, or with a right
of recourse against, any member of the Borrower Group;
(ix) the aggregate of the principal amounts outstanding under all
agreements or transactions entered into by any member of the
Borrower Group for leasing, hire purchase, conditional sale or
purchase on deferred terms, or provision of funds in support of
obligations of third parties and similar transactions in relation
to any property, and any other amounts due to creditors other
than current creditors;
(x) amounts standing to the credit of any deferred tax account or tax
equalisation reserve; and
(xi) any amount proposed to be distributed to shareholders,
Provided that no liabilities shall be included in a calculation of
Consolidated Liabilities more than once.
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For this purpose, any amount outstanding or repayable in a currency other
than US Dollars shall on that day be taken into account in its US Dollars
equivalent at the rate of exchange that would have been used had an
audited consolidated balance sheet of the Borrower Group been prepared as
at that day in accordance with the GAAP applicable to the Original
Financial Statements of the Borrower.
"CONSOLIDATED NETWORTH" means, as at any particular time, the aggregate
of:
(i) the amount paid up or credited as paid up on the issued share
capital of the Borrower and (to the extent required by GAAP
applicable to the Original Financial Statements of the Borrower)
of the subsidiaries of the Borrower (other than any shares which
are expressed to be redeemable); and
(ii) the amount standing to the credit of the consolidated reserves of
the Borrower Group,
less (but without double counting) any amount included in the above which
is attributable to:
(a) goodwill or other intangible assets;
(b) amounts set aside for Tax;
(c) minority interests;
(d) the amount by which the net book value of any asset has been
written up after the date as at which the Original Financial
Statements were prepared (or, in the case of a person becoming a
member of the Borrower Group after that date, the date on which
that person became or becomes a member of the Borrower Group) by
way of revaluation or on its transfer from one member of the
Borrower Group to another; and
(e) any dividend or other distribution declared, recommended or made
by any member of the Borrower Group,
but ignoring any variation in the credit or debit balance on the Borrower
Group consolidated profit and loss account since the date of the then
latest audited consolidated balance sheet of the Borrower Group except to
the extent reflected in any later Borrower Group consolidated profit and
loss statement delivered to the Lender under Clause 18.
"DEBT SERVICE" means in respect of any Relevant Period, the aggregate of:
(i) the aggregate amount of interest and any other finance charges
(whether or not paid, payable or capitalised) payable by the
Borrower in that Relevant Period in respect of Liabilities
adjusted (but without double counting) by deducting interest
income of the Borrower in respect of that Relevant Period to the
extent freely distributable to the Borrower in cash, as
determined (except as needed to reflect the terms of this Clause
20) from the financial statements of the Borrower and Compliance
Certificates delivered under Clause 18.1 and Clause 18.2; and
(ii) the aggregate of the scheduled repayments under Facility A and
any other Financial Indebtedness of the Borrower falling due
during the Relevant Period.
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"EBITDA" means, in relation to any Relevant Period, the total operating
profit of the Borrower for that Relevant Period:
(i) before taking into account:
(a) Interest Expense;
(b) Tax;
(c) any share of the profit of any associated company or
undertaking, except for dividends received in cash by the
Borrower; and
(d) extraordinary and exceptional items; and
(ii) after adding back all amounts provided for depreciation and
amortisation for that Relevant Period,
as determined (except as needed to reflect the terms of this Clause 20)
from the financial statements of the Borrower and Compliance Certificates
delivered under Clause 18.1 and Clause 18.2.
"LIABILITIES" means, as at any particular time in relation to the
Borrower, an amount for the time being including:
(i) bank overdrafts and any part of any other borrowings maturing
within 12 months;
(ii) the principal amount of any bonds or debentures or any other debt
instruments issued by the Borrower whether issued for cash or a
consideration other than cash;
(iii) the liabilities of the Borrower under any other liabilities in
the nature of borrowings;
(iv) all other indebtedness whatsoever for borrowed moneys;
(v) current creditors, dividends, and taxation payable within 12
months;
(vi) the principal amount raised by acceptances under any acceptance
credit in favour of the Borrower;
(vii) the face amount of any bills of exchange (other than cheques) or
other instruments upon which the Borrower is liable as drawer,
acceptor or endorser;
(viii) all actual and contingent liabilities of whatsoever nature of the
Borrower in respect of borrowed moneys including, without
limitation, the maximum premium payable on a redemption of any
debenture or other indebtedness of the Borrower and all actual
and contingent liabilities of any other person (including the par
value of any shares and the principal amount of any debentures of
any person) to the extent that such liabilities, shares or
debentures are directly or indirectly guaranteed or secured by or
are, directly or indirectly, the subject of an indemnity given
by, or with a right of recourse against, the Borrower;
(ix) the aggregate of the principal amounts outstanding under all
agreements or transactions entered into by the Borrower for
leasing, hire purchase, conditional sale or purchase on deferred
terms, or provision of funds in support of obligations of third
parties and similar transactions in relation to any property, and
any other amounts due to creditors other than current creditors;
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(x) amounts standing to the credit of any deferred tax account or tax
equalisation reserve; and
(xi) any amount proposed to be distributed to shareholders,
Provided that no liabilities shall be included in a calculation of
Liabilities more than once.
For this purpose, any amount outstanding or repayable in a currency other
than US Dollars shall on that day be taken into account in its US Dollars
equivalent at the rate of exchange that would have been used had an
audited balance sheet of the Borrower been prepared as at that day in
accordance with the GAAP applicable to the Original Financial Statements
of the Borrower.
"NETWORTH" means, as at any particular time, the aggregate of:
(i) the amount paid up or credited as paid up on the issued share
capital of the Borrower (other than any shares which are
expressed to be redeemable); and
(ii) the amount standing to the credit of the consolidated reserves of
the Borrower,
less (but without double counting) any amount included in the above which
is attributable to:
(a) goodwill or other intangible assets;
(b) amounts set aside for Tax;
(c) minority interests;
(d) the amount by which the net book value of any asset has been
written up after the date as at which the Original Financial
Statements were prepared by way of revaluation; and
(e) any dividend or other distribution declared, recommended or made
by the Borrower,
but ignoring any variation in the credit or debit balance on the Borrower
profit and loss account since the date of the then latest audited balance
sheet of the Borrower except to the extent reflected in any later Borrower
profit and loss statement delivered to the Lender under Clause 18.
"RELEVANT PERIOD" means:
(i) in relation to the computation of EBITDA, the period of 12
calendar months immediately preceding such date of computation;
and
(ii) in relation to the computation of Debt Service, the period of 12
calendar months immediately preceding such date of computation.
21. EVENTS OF DEFAULT
Each of the events or circumstances set out in Clause 21 is an Event of
Default.
21.1 NON-PAYMENT
An Obligor does not pay on the due date any amount payable pursuant to a
Finance Document at the place at and in the currency in which it is
expressed to be payable.
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21.2 FINANCIAL COVENANTS
Any requirement of Clause 20 is not satisfied.
21.3 OTHER OBLIGATIONS
21.3.1 An Obligor does not comply with any provision of the Finance
Documents (other than those referred to in Clause 21.1 and Clause
21.2).
21.3.2 No Event of Default under Clause 21.3.1 above will occur if the
failure to comply is capable of remedy and is remedied within 14
days of the Lender giving notice to the Borrower or the Borrower
becoming aware of the failure to comply.
21.4 MISREPRESENTATION
Any representation or statement made or deemed repeated by an Obligor in
the Finance Documents or any other document delivered by or on behalf of
any Obligor under or in connection with any Finance Document is or proves
to have been incorrect or misleading in any material respect when made or
deemed repeated and if that default is capable of remedy, it is not
remedied within 14 days of the Lender giving notice to the Borrower or the
Borrower becoming aware of the default.
21.5 CROSS DEFAULT
21.5.1 Any Financial Indebtedness exceeding in aggregate US$500,000 of
any Obligor or any member of the Borrower Group is not paid when
due nor within any applicable grace period.
21.5.2 Any Financial Indebtedness of any Obligor or any member of the
Borrower Group is declared to be due and payable prior to its
specified maturity as a result of an event of default (however
described).
21.5.3 Any commitment for any Financial Indebtedness of any Obligor or
any member of the Borrower Group is cancelled or suspended by a
creditor of any Obligor or member of the Borrower Group as a
result of an event of default (however described).
21.5.4 Any creditor of any Obligor or any member of the Borrower Group
becomes entitled to declare any Financial Indebtedness of any
Obligor or any member of the Borrower Group due and payable prior
to its specified maturity as a result of an event of default
(however described).
21.6 INSOLVENCY
21.6.1 Any Obligor or a member of the Borrower Group is deemed to be
unable or admits inability to pay its debts generally, suspends
making payments on all or a material part of its debts or, by
reason of actual or anticipated financial difficulties, commences
negotiations with one or more of its creditors with a view to
rescheduling all or a material part of its indebtedness.
21.6.2 The value of the assets of any Obligor or any member of the
Borrower Group is less than its liabilities (taking into account
contingent and prospective liabilities).
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21.6.3 A moratorium is declared in respect of all or a material part of
the indebtedness of any Obligor or any member of the Borrower
Group.
21.7 INSOLVENCY PROCEEDINGS
Any corporate action, legal proceedings or other procedure or step (other
than those of a frivolous or vexatious nature in the reasonable opinion of
the Lender) is taken in relation to:
21.7.1 the suspension of payments, a moratorium of any indebtedness,
winding-up, dissolution, administration, provisional supervision,
supervision or reorganisation (by way of voluntary arrangement,
scheme of arrangement or otherwise) other than a solvent
liquidation or reorganisation on terms approved by the Lender
(such approval not to be unreasonably withheld);
21.7.2 a composition, assignment or arrangement with any creditor of any
Obligor or any member of the Borrower Group;
21.7.3 the appointment of a liquidator (other than in a solvent
liquidation of a member of the Borrower Group which is not an
Obligor), receiver, administrator, administrative receiver,
compulsory manager, provisional supervisor, supervisor or other
similar officer in respect of any Obligor or any member of the
Borrower Group or any of its assets; or
21.7.4 the enforcement of any Security over any assets of any Obligor or
any member of the Borrower Group,
or any analogous procedure or step is taken in any jurisdiction.
21.8 CREDITORS' PROCESS
Any expropriation, attachment, sequestration, distress or execution
affects all or a material part of the assets of any Obligor or any member
of the Borrower Group and is not discharged or stayed within 21 days.
21.9 OWNERSHIP OF BORROWER
At any time after the Acquisition Exercise Date, the Borrower is not or
ceases to be a wholly owned direct or indirect Subsidiary of the
Guarantor.
21.10 REPUDIATION
An Obligor repudiates a Finance Document or evidences an intention to
repudiate a Finance Document.
21.11 SECURITY
Any Security Document is not in full force and effect or does not create
in favour of the Lender the Security which it is expressed to create with
the ranking and priority it is expressed to have.
21.12 BUSINESS IN JEOPARDY
In the reasonable opinion of the Lender (i) the business of the Borrower
is in jeopardy and/or (ii) the key management of the Borrower as at the
date of this Agreement is wholly
- 35 -
or substantially displaced or the authority of the Borrower in the conduct
of its business is wholly or substantially curtailed.
21.13 DECLARED COMPANY
The Guarantor is declared by the Minister to be a declared company under
the provisions of Part IX of the Companies Act, Chapter 50 of Singapore.
21.14 NO PROCEEDINGS PENDING OR THREATENED
Any litigation, arbitration or administrative proceedings of or before any
court, arbitral body or agency have been started or threatened against the
Borrower or any of the Borrower's Subsidiaries which, if adversely
determined, might reasonably be expected to have a Material Adverse
Effect.
21.15 MATERIAL ADVERSE CHANGE
Any event or circumstance occurs which the Lender reasonably determines
would have a Material Adverse Effect.
21.15A POLITICAL RISK EVENT
An event (howsoever named or defined in a Political Risk Insurance) which
entitles the insured thereunder to make a claim under such Political Risk
Insurance occurs and either (i) any grace or waiting period for such
insured to make such claim has expired or (ii) the payment of such claim
has been made under such Political Risk Insurance.
21.16 ACCELERATION
On and at any time after the occurrence of an Event of Default the Lender
may, by notice in writing to the Borrower:
21.16.1 cancel the Total Facility Amounts whereupon it shall immediately
be cancelled;
21.16.2 declare that all or part of the Loans, together with accrued
interest, and all other amounts accrued or outstanding under the
Finance Documents be immediately due and payable, whereupon they
shall become immediately due and payable; and/or
21.16.3 declare that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand by the
Lender.
22. CHANGES TO THE LENDER
22.1 ASSIGNMENTS AND TRANSFERS BY THE LENDER
Subject to this Clause 22, a Lender (the "EXISTING LENDER") may, at its
own cost and expense, without the consent of the Borrower:
22.1.1 assign any of its rights; or
22.1.2 transfer by novation any of its rights and obligations,
to another bank or financial institution or to a trust fund or other
entity which is regularly engaged in or established for the purpose of
making, purchasing or investing in loans, securities or other financial
assets (the "NEW LENDER").
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22.2 CONDITIONS OF ASSIGNMENT OR TRANSFER
If:
22.2.1 the Lender assigns or transfers any of its rights or obligations
under the Finance Documents or changes its Facility Office; and
22.2.2 as a result of circumstances existing at the date the assignment,
transfer or change occurs, the Borrower would be obliged to make
a payment to the New Lender or the Lender acting through its new
Facility Office under Clause 12 or Clause 13,
then the New Lender or the Lender acting through its new Facility Office
is only entitled to receive payment under those Clauses to the same extent
as the Existing Lender or the Lender acting through its previous Facility
Office would have been if the assignment, transfer or change had not
occurred.
22.3 DISCLOSURE OF INFORMATION
The Lender and any of its officers (as defined in the Banking Act, Chapter
19 of Singapore (the "BANKING ACT")) may disclose to any of its Affiliates
and any other person:
22.3.1 to whom the Lender assigns or transfers (or may potentially
assign or transfer) all or any of its rights and obligations
under this Agreement;
22.3.2 to whom the Lender 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;
22.3.3 to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation;
22.3.4 to whom the Lender is under a duty to disclose; or
22.3.5 who is a person, or who belongs to a class of persons, specified
in the second column of the Sixth Schedule to the Banking Act,
any customer information (as defined in the Banking Act) or any other
information about the Borrower, the Group and the Finance Documents as the
Lender shall consider appropriate.
This Clause 22.3 is not, and shall not be deemed to constitute, an express
or implied agreement by the Lender with the Borrower for a higher degree
of confidentiality than that described in Section 47 of the Banking Act
and in the Sixth Schedule to the Banking Act.
23. CHANGES TO THE BORROWER
The Borrower may not assign any of its rights or transfer any of its
rights or obligations under the Finance Documents.
24. CONDUCT OF BUSINESS BY THE LENDER
No provision of this Agreement will:
24.1.1 impose a legal obligation on the Lender to take any steps that
might be prejudicial to it or which might conflict with its
general banking policies;
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24.1.2 interfere with the right of the Lender to arrange its affairs
(tax or otherwise) in whatever manner it thinks fit;
24.1.3 oblige the Lender to claim any credit, relief, remission or
repayment available to it or the extent, order and manner of any
claim; or
24.1.4 oblige the Lender to disclose any information relating to its
affairs (tax or otherwise).
25. PAYMENT MECHANICS
25.1 PAYMENTS TO THE LENDER
25.1.1 On each date on which the Borrower is required to make a payment
under a Finance Document, it shall make the same available to the
Lender for value on the due date at the time and in such funds
specified by the Lender as being customary at the time for
settlement of transactions in the relevant currency in the place
of payment.
25.1.2 Payment shall be made to such account in the principal financial
centre of the country of that currency with such bank as the
Lender may notify to the Borrower by not less than five Business
Days' notice.
25.2 PAYMENTS BY THE LENDER
25.2.1 On each date on which the Lender is required to make a payment
under a Finance Document, the Lender shall make the same
available to the Borrower for value on the due date at the time
and in such funds specified by the Lender as being customary at
the time for settlement of transactions in the relevant currency
in the place of payment.
25.2.2 Payment shall be made to such account in the principal financial
centre of the country of that currency with such bank as the
Borrower may notify to the Lender in the relevant Utilisation
Request.
25.3 DISTRIBUTIONS TO THE BORROWER
The Lender may (with the consent of the Borrower or in accordance with
Clause 26 (Set-Off)) apply any amount payable by it to the Borrower in or
towards payment (on the date and in the currency and funds of receipt) of
any amount due from the Borrower under the Finance Documents or in or
towards purchase of any amount of any currency to be so applied.
25.4 NETTING OF PAYMENTS
Notwithstanding Clauses 6.2 or 25.1 to 25.3 or any other provision of this
Agreement, if on any date an amount under Facility B (the "FIRST AMOUNT")
is to be advanced by the Lender under this Agreement and an amount under
Facility B (the "SECOND AMOUNT") is due from the Borrower to the Lender
under this Agreement, the Lender shall apply the first amount in or
towards payment of the second amount. The Lender shall remain obliged to
advance any excess (or, as the case may be, the Borrower shall remain
obliged to pay any shortfall) in accordance with this Clause 25. Nothing
in this Clause 25.4 shall be effective to create a charge.
- 38 -
25.5 PARTIAL PAYMENTS
25.5.1 If the Lender receives a payment that is insufficient to
discharge all the amounts then due and payable by an Obligor
under the Finance Documents, the Lender shall apply that payment
towards the obligations of the Borrower under the Finance
Documents in any order selected by the Lender.
25.5.2 Clause 25.5.1 above will override any appropriation made by the
Borrower.
25.6 NO SET-OFF BY BORROWER
All payments to be made by the Borrower under the Finance Documents shall
be calculated and be made without (and free and clear of any deduction
for) set-off or counterclaim subject, however, to Clause 22.2.
25.7 BUSINESS DAYS
25.7.1 Any payment which is due to be made on a day that is not a
Business Day shall be made on the next Business Day.
25.7.2 During any extension of the due date for payment of any principal
or an Unpaid Sum under this Agreement interest is payable on the
principal or Unpaid Sum at the rate payable on the original due
date.
25.8 CURRENCY OF ACCOUNT
25.8.1 Subject to Clauses 25.8.2 to 25.8.5 below, US Dollars is the
currency of account and payment for any sum due from the Borrower
under any Finance Document.
25.8.2 A repayment of an Unpaid Sum or a part of an Unpaid Sum shall be
made in the currency in which that Unpaid Sum is denominated on
its due date.
25.8.3 Each payment of interest shall be made in the currency in which
the sum in respect of which the interest is payable was
denominated when that interest accrued.
25.8.4 Each payment in respect of costs, expenses or Taxes shall be made
in the currency in which the costs, expenses or Taxes are
incurred.
25.8.5 Any amount expressed to be payable in a currency other than US
Dollars shall be paid in that other currency.
26. SET-OFF
The Lender may, at any time after the occurrence of an Event of Default
and so long as such Event of Default is continuing, but is not obliged to,
set off any matured obligation due from the Borrower under the Finance
Documents (to the extent beneficially owned by the Lender) against any
obligation owed by the Lender to the Borrower, regardless of the place of
payment, booking branch or currency of either obligation. If the
obligations are in different currencies, the Lender may convert either
obligation at a market rate of exchange in its usual course of business
for the purpose of the set-off. The Lender shall as soon as reasonably
practicable upon effecting such set-of or conversion give notice in
writing thereof to the Borrower.
- 39 -
27. NOTICES
27.1 COMMUNICATIONS IN WRITING
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be
made by fax, letter or telex.
27.2 ADDRESSES
The address, fax number and telex number (and the department or officer,
if any, for whose attention the communication is to be made) of each Party
for any communication or document to be made or delivered under or in
connection with the Finance Documents is that identified with its name
below, or any substitute address, fax number, telex number or department
or officer as the Party may notify to the other Party by not less than
five Business Days' prior notice in writing.
27.3 DELIVERY
27.3.1 Any communication or document made or delivered by the Lender to
the Borrower under or in connection with the Finance Documents
will only be effective:
(i) if by way of fax, when received in legible form; or
(ii) if by way of letter, when it has been left at the relevant
address or five Business Days after being sent by prepaid
registered post (by airmail) in an envelope addressed to it
at that address; or
(iii) if by way of telex, when despatched, but only if, at the
time of transmission, the correct answerback appears at the
start and at the end of the sender's copy of the notice,
and, if a particular department or officer is specified as part
of its address details provided under Clause 27.2, if addressed
to that department or officer.
27.3.2 Any communication or document to be made or delivered to the
Lender will be effective only when actually received by the
Lender and then only if it is expressly marked for the attention
of the department or officer identified with the Lender's
signature below (or any substitute department or officer as the
Lender shall specify for this purpose).
27.3.3 Any communication or document made or delivered to the Borrower
in accordance with this Clause will be deemed to have been made
or delivered to the Borrower.
28. CALCULATIONS AND CERTIFICATES
28.1 ACCOUNTS
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by the Lender are prima facie evidence of the matters to which
they relate.
28.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by the Lender of a rate or amount under
any Finance Document is prima facie evidence of the matters to which it
relates.
- 40 -
28.3 DAY COUNT CONVENTION
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual number
of days elapsed and a year of 360 days.
29. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction will in any way be
affected or impaired.
30. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of the
Lender, any right or remedy under the Finance Documents shall operate as a
waiver, nor shall any single or partial exercise of any right or remedy
prevent any further or other exercise or the exercise of any other right
or remedy. The rights and remedies provided in this Agreement are
cumulative and not exclusive of any rights or remedies provided by law.
31. AMENDMENTS AND WAIVERS
No term of any of the Finance Documents may be amended or waived without
the prior consent of the Lender and the Borrower and any such amendment or
waiver will be binding on all Parties.
32. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were on
a single copy of the Finance Document.
33. GOVERNING LAW
This Agreement is governed by Singapore law.
34. ENFORCEMENT
34.1 JURISDICTION OF SINGAPORE COURTS
34.1.1 The courts of Singapore have jurisdiction to settle any dispute
arising out of or in connection with this Agreement (including a
dispute regarding the existence, validity or termination of this
Agreement) (a "DISPUTE").
34.1.2 The Parties agree that the courts of Singapore are the most
appropriate and convenient courts to settle Disputes and
accordingly no Party will argue to the contrary.
34.1.3 This Clause 34.1 is for the benefit of the Lender only. As a
result, the Lender shall not be prevented from taking proceedings
relating to a Dispute in any other courts with jurisdiction. To
the extent allowed by law, the Lender may take concurrent
proceedings in any number of jurisdictions.
- 41 -
34.2 SERVICE OF PROCESS
Without prejudice to any other mode of service allowed under any relevant
law the Borrower :
34.2.1 irrevocably appoints the Guarantor as its agent for service of
process in relation to any proceedings before the Singapore
courts in connection with any Finance Document; and
34.2.2 agrees that failure by a process agent to notify the Borrower of
the process will not invalidate the proceedings concerned.
This Agreement has been entered into on the date stated at the beginning
of this Agreement
35. CONFLICT
In the event of any inconsistency between the provisions of this Agreement
and the provisions of any of the Finance Documents, the provisions of this
Agreement will prevail.
- 42 -
SCHEDULE 1
CONDITIONS PRECEDENT
1. OBLIGORS
(a) A copy of the certificate of incorporation and memorandum and articles of
association of the Guarantor and the analogous constitutional documents of
the Borrower.
(b) A copy of a resolution of the board of directors of each Obligor:
(i) approving the terms of, and the transactions contemplated by, the
Finance Documents to which it is a party and resolving that it
execute the Finance Documents to which it is a party;
(ii) in the case of the Guarantor, to the effect that it is in the
commercial interests of the Guarantor, giving reasons;
(iii) authorising a specified person or persons to execute the Finance
Documents to which it is a party on its behalf; and
(iv) authorising a specified person or persons, on its behalf, to sign
and/or despatch all documents and notices (including, if relevant,
any Utilisation Request and Selection Notice) to be signed and/or
despatched by it under or in connection with the Finance Documents
to which it is a party.
(c) A specimen of the signature of each person authorised by the resolution
referred to in paragraph (b) above.
(d) A certificate of a director or the secretary of the relevant Obligor
certifying that:
(i) each copy document relating to it specified in paragraphs (a) and
(b) above is correct, complete and in full force and effect as at a
date no earlier than the date of this Agreement; and
(ii) borrowing or guaranteeing, as appropriate, the Total Facility
Amounts would not cause any borrowing, guaranteeing or similar limit
binding on that Obligor to be exceeded.
2 SECURITY
The following documents in such form as may be agreed by the Borrower and
the Lender:
(a) A copy of each Security Document, duly executed by the Parties to it.
(b) A copy of all insurance policies required to be effected by the Borrower
under Clause 19.7 (in form and substance acceptable to the Lender) naming
the Lender as sole loss payee and the receipts for the most recent
premium.
(c) Notices of assignment of Assigned Accounts signed by the Borrower, all as
required by the Security Agreement.
In this paragraph 2, the term "ASSIGNED ACCOUNTS", has the meaning given
to it in the Security Agreement.
- 43 -
3 LEGAL OPINIONS
(a) A legal opinion of Xxxxx & Xxxxxxxx, legal advisers to the Lender in
Singapore, substantially in the form agreed by the Lender prior to signing
this Agreement.
(b) A legal opinion of SyCip Xxxxxxx Xxxxxxxxx & Xxxxxxxxx, legal advisers to
the Lender in the Philippines.
4 OTHER DOCUMENTS AND EVIDENCE
(a) Evidence that any process agent referred to in Clause 34.2, if not an
Obligor, has accepted its appointment.
(b) A copy of any other Authorisation which is necessary (if the Lender has
notified the Borrower accordingly) in connection with the entry into and
performance of the transactions contemplated by any Finance Document or
for the validity and enforceability of any Finance Document.
(c) The Original Financial Statements of each Obligor.
(d) Evidence that the fees, costs and expenses then due from the Borrower
pursuant to Clause 11 and Clause 16 have been paid or will be paid by the
first Utilisation Date.
(e) Evidence that the cash component of the consideration payable in relation
to the Acquisition Exercise does not exceed US$8,000,000.
(f) Evidence that the existing key management of the Borrower has signed or
will sign a service agreement of not less than two years from the
Acquisition Exercise Date.
- 44 -
SCHEDULE 2
REQUESTS
PART I
UTILISATION REQUEST
From: Automated Technology (Phil.) Inc
To: The Development Bank of Singapore Ltd
Dated: [ ]
Dear Sirs
AUTOMATED TECHNOLOGY (PHIL.) INC
FACILITY AGREEMENT
DATED [__________] (THE "FACILITY AGREEMENT")
1 We refer to the Facility Agreement. This is a Utilisation Request. Terms
defined in the Facility Agreement shall have the same meaning in this
Utilisation Request.
2 We wish to borrow a Loan on the following terms:
Proposed Utilisation Date: [ ] (or, if that is not a Business
Day, the next Business Day)
Facility to be utilised: [Facility A]/[Facility B]*
Amount: [ ] or, if less, the Available
Facility
Interest Period: [ ]
3 We confirm that each condition specified in Clause 4.2 is satisfied on the
date of this Utilisation Request.
4 The proceeds of this Loan should be credited to [account].
5 This Utilisation Request is irrevocable.
Yours faithfully
--------------------------
authorised signatory for
[name of the Borrower]
----------
* Delete as appropriate.
- 45 -
PART II
SELECTION NOTICE
From: Automated Technology (Phil.) Inc
To: The Development Bank of Singapore Ltd
Dated:
Dear Sirs
AUTOMATED TECHNOLOGY (PHIL.) INC
FACILITY AGREEMENT
DATED [ ] (THE "AGREEMENT ")
1 We refer to the Agreement. This is a Selection Notice. Terms defined in
the Agreement have the same meaning when used in this Selection Notice
unless given a different meaning in this Selection Notice.
2 We refer to the Interest Period of the Facility A Loan ending on [ ].*
3 We request that the next Interest Period for that Facility A Loan is [ ].
4 This Selection Notice is irrevocable.
Yours faithfully
--------------------------
authorised signatory for
Automated Technology (Phil.) Inc
----------
* INSERT DETAILS OF ALL LOANS WHICH HAVE AN INTEREST PERIOD ENDING ON THE SAME
DATE.
- 46 -
IN WITNESS WHEREOF this Agreement has been entered into on the date stated at
the beginning.
THE BORROWER
AUTOMATED TECHNOLOGY (PHIL.) INC
Address: Main Avenue cor. Hologram Road
Light Industry and Science Park of the Philippines - XXXX 0000
Xxxxxx, Xxxxxx, Xxxxxxxxxxx
Fax No.: (0000) 000 0000
Tel No.: (0000) 000 0000
Attention: Xxxx Xxxxxxx X. Xxxxxxxx
SVP/CFO
By: /s/ Xxxxxx Xxxxxxx /s/ Xxxxxxxx Xxxxx
THE LENDER
THE DEVELOPMENT BANK OF SINGAPORE LTD
Address: 0 Xxxxxxx Xxx #00-00
XXX Xxxxxxxx Xxxxx Xxx
Xxxxxxxxx 000000
Fax No.: 0000 0000
Attention: Manager, Advisory Banking, Investment Banking Group
By: /s/ DBS Representative
/s/ Sia Moon Joon
Notarary Public Singapore
- 47 -
Execution Copy
OMNIBUS SECURITY AGREEMENT
dated as of February 5, 2003
between
AUTOMATED TECHNOLOGY (PHIL.) INC.
and
THE DEVELOPMENT BANK OF SINGAPORE LTD.
THIS OMNIBUS SECURITY AGREEMENT (this "Agreement"), dated as of February 5,
2003, is made by and between AUTOMATED TECHNOLOGY (PHIL.) INC., a corporation
organized under the laws of the Philippines (the "Company"), and THE DEVELOPMENT
BANK OF SINGAPORE LTD., a banking corporation organized under the laws of
Singapore (the "Bank").
PRELIMINARY STATEMENT
(A) By a Facility Agreement dated February 5, 2003, between the Company and
the Bank (as amended or supplemented, the "Facility Agreement"), the Bank
agreed to provide to the Company a term loan facility in the amount of
US$10,000,000 and an uncommitted revolving credit facility in the amount
of US$3,000,000 under the terms and conditions of the Facility Agreement;
(B) In order to secure the due and full payment and performance by the Company
of all Secured Obligations, the Company agreed to mortgage and/or assign
the Collateral in favor of the Bank in accordance with and under the terms
and conditions of this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
PART A
COMMON PROVISIONS
SECTION 1. DEFINITIONS AND OTHER TERMS
1.01 PRINCIPLES OF CONSTRUCTION
(a) Capitalized terms used in this Agreement but not otherwise defined
shall have the meanings set forth in Section 1.02 of this Part A.
(b) The headings in this Agreement are inserted for convenience of
reference only and shall not limit or affect the construction of the
provisions hereof. Unless the context otherwise requires, words denoting
the singular number shall include the plural and vice versa. Unless
otherwise provided herein, all terms of accounting used herein shall be
construed in accordance with generally accepted accounting principles in
effect in the Philippines on the date applied. References to "Part" or
"Schedule" are references to the Parts of and Schedules to this Agreement.
(c) Unless the context otherwise requires, references in any Part of this
Agreement to "Section" or "Sections" are references to the Sections of
such Part.
(d) Reference in this Agreement to any statute, law, decree or regulation
shall be construed as a reference to such statute, law, decree or
regulation as re-enacted, redesignated, amended or extended from time to
time, and reference in this Agreement to any document or agreement shall
be deemed to include
references to such document or agreement as amended, varied, supplemented
or replaced from time to time.
(e) References to any Person or Persons shall be construed as a reference
to any permitted successors or assigns of such Person or Persons.
1.02 COMMON DEFINED TERMS
When used in this Agreement, the following terms shall have the following
meanings (terms used in the singular to have a correlative meaning when
used in the plural and vice versa):
"Applicable Law" shall mean any statute, law, regulation, ordinance, rule,
judgment, order, decree, Governmental Approval, concession, grant,
franchise, license, directive, guideline, policy, requirement or other
governmental restriction or any similar form of decision of, or
determination by, or any interpretation or administration of any of the
foregoing by, any Governmental Authority.
"Base Rate" shall mean the interest rate referred to in Clause 8.3 of the
Facility Agreement.
"Business Day" shall mean a day on which commercial banks are not
authorized or required to close in the cities of Manila and Makati.
"Collateral" shall mean all property, rights, title and interest of any
kind or character covered by, or purported to be covered by, this
Agreement.
"Declaration" shall mean the declaration or notice that the Bank may issue
under Clause 21.16 of the Facility Agreement.
"Event of Default" shall mean any of the events specified in Clause 21 of
the Facility Agreement.
"Facilities" shall mean the aggregate principal amount of the loan and
credit facilities made to the Company under the Facility Agreement, or as
the context may require, the amount thereof then outstanding.
"Governmental Approval" shall mean any authorization, consent, approval,
license, franchise, ruling, permit, tariff, rate, certification,
exemption, filing, variance, claim, order, judgment, decree, publication,
notices to, declarations of or with or registration by or with, any
Governmental Authority.
"Governmental Authority" shall mean any nation or government, any state or
other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to the government.
2
"Lien" shall mean, with respect to any Person, any mortgage, charge,
pledge, lien or other security interest on or with respect to any asset or
revenue of such Person securing any obligation of any Person or any other
agreement or arrangement having substantially the same economic effect.
"Material Adverse Effect" shall have the meaning ascribed thereto in
Clause 1.1 of the Facility Agreement.
"Person" shall mean an individual, corporation, partnership, joint
venture, unincorporated association, trust or other juridical entity, or
any Governmental Authority.
"Secured Obligations" shall mean all indebtedness, liabilities and
obligations of the Company to the Bank under or pursuant to the terms of
the Facility Agreement and this Agreement.
"Termination" shall mean the occurrence of both of the following: (i) the
payment in full of all the Secured Obligations, and (ii) the termination
in whole of the obligations of the Bank to extend or maintain the
Facilities under the Facility Agreement.
"US Dollars" and "US$" shall mean the lawful currency of the United States
of America.
SECTION 2. COLLATERAL
2.01 GRANTING CLAUSE
In consideration of the extension of the Facilities to the Company under
the Facility Agreement, and in order to secure the due and full payment
and performance of all Secured Obligations according to their terms, as
well as for the prompt observance and performance of all the provisions of
this Agreement (including any instrument supplemental hereto and any
modification or alteration hereof made as herein provided), the Company
has granted, conveyed, mortgaged, assigned, transferred, and confirmed,
and by these presents do hereby grant, convey, mortgage, assign, transfer,
and confirm unto the Bank, the following Collateral:
(1) all personal property, tangible and intangible, owned by the
Company on the date of the execution hereof, and all personal property,
tangible and intangible, which may be hereafter acquired by it, situated
in the Philippines, excepting in each case such property as is hereinafter
expressly excepted and excluded from the Lien and operations of this
Agreement, each of which property will be granted by the Company to the
Bank by way of chattel mortgage and/or assignment in accordance with the
applicable provisions of Part B and Part C;
3
(2) all revenues now or hereafter collected by the Company, and all
moneys now or hereafter payable by the customers of the Company, as
granted by the Company to the Bank by way of assignment in accordance with
the provisions of Part C; and
(3) all of the proceeds of the foregoing.
The particular description of the Collateral in any provision of this
Agreement shall be without prejudice to the generality of the granting
clause contained in this Section 2.01.
2.02 EXCEPTIONS AND EXCLUSIONS
Any and all property, permits, licenses or franchises now owned or
hereafter acquired or constructed by or granted to the Company for use in
connection with its business, to the extent that any such property,
permit, license or franchise is or may be stated or required to be
non-transferable by virtue of any Applicable Law or any agreement entered
into by the Company with any Governmental Authority, and any personal
property owned by the Company over which any Lien may from time to time be
granted by the Company pursuant to Clause 19.3.3(v) of the Facility
Agreement, are hereby excepted and excluded from this Agreement and from
the Lien created hereunder.
2.03 DEFEASANCE CLAUSE
It is of the essence of this Agreement that if the Company shall pay or
perform or cause to be paid or performed in full all of the Secured
Obligations, and if the Company shall also observe and perform its
covenants and obligations set forth in this Agreement, then this Agreement
and the estate and rights hereby granted shall cease and terminate, and
the Bank shall, as soon as practicable thereafter and at the cost and
request of the Company, execute and deliver to the Company, as
appropriate, such deeds or other instruments as shall be requisite to
cancel and discharge the Lien of this Agreement and reconvey to the
Company, as appropriate, the estate and titles hereby conveyed.
2.04 DECLARATION
If an Event of Default shall have occurred and be continuing, the Bank
under the Facility Agreement may issue a Declaration in accordance with
the terms of such agreement, and shall then have such rights and remedies
as are provided in this Agreement.
SECTION 3. MISCELLANEOUS PROVISIONS
4
3.01 WAIVER, CUMULATIVE RIGHTS
No failure or delay on the part of the Bank in exercising any right, power
or remedy accruing to it upon any breach or default of the Company under
this Agreement shall impair any such right, power or remedy, nor shall it
be construed as a waiver of any such breach or default thereafter
occurring, nor shall a waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring,
nor shall any single or partial exercise of any such right or power
preclude any other or further exercise thereof or the exercise of any
other right or power hereunder. All remedies, either under this Agreement
or by Applicable Law or otherwise afforded the Bank shall be cumulative
and not alternative. No notice to or demand on the Company in any case
shall entitle it to any other or further notice or demand in similar or
other circumstances.
3.02 AMENDMENTS
Subject to any other requirement as may be specified in any other Part,
the written consent of the Bank shall be required for an amendment or any
waiver of the provisions of this Agreement.
3.03 VENUE FOR SUIT
The Company irrevocably agrees that any legal action, suit or proceeding
arising out of or relating to this Agreement or any Part may be
instituted, at the option of the Bank, in any competent court in Metro
Manila, and by the execution and delivery of this Agreement, the Company
submits to and accepts with regard to any such action or proceeding for
itself and in respect of its properties or assets, generally and
unconditionally, the non-exclusive jurisdiction of any such court. The
Company hereby waives any objection which it may now or hereafter have to
the laying of the venue of any such action, suit or proceeding, and
further waives any claim that any such suit, action or proceeding has been
brought in an inconvenient forum. The foregoing, however, shall not limit
or be construed to limit the rights of the Bank to commence proceedings or
to obtain execution of judgment against the Company in any venue or
jurisdiction where assets of the Company may be found. Furthermore, the
foregoing shall be without prejudice to the right of the Bank to bring
action in the courts of and in any appropriate venue in order to proceed
against the Collateral in accordance with the provisions of Part A, B and
C.
3.04 GOVERNING LAW
This Agreement shall be governed in all respects, including validity,
construction, performance and effect, by the laws of the Philippines.
5
3.05 SEVERABILITY OF PROVISIONS
If any one or more of the provisions contained in this Agreement or any
document executed in connection herewith shall be invalid, illegal or
unenforceable under any Applicable Law, the validity, legality and
enforceability of the remaining provisions contained herein shall not in
any way be affected or impaired.
3.06 ASSIGNMENT
This Agreement shall be binding upon and shall be enforceable against the
Company, the Bank and their respective successors and assigns, except that
the Company shall not have the right to transfer or assign its rights or
obligations hereunder. The Bank may at its own cost be entitled to
transfer or assign any part or all of its rights and/or obligations
hereunder to any Person in favour of whom it has transferred or assigned
any part or all of its rights and obligations under the Facility
Agreement. An assignment by the Bank of all or a part of its rights and
obligations hereunder shall be effective and binding only when the Company
receives written notice of such assignment, together with a copy of the
instrument effecting such assignment, duly executed by the Bank and its
assignee. Upon any assignment by the Bank, the assignee shall be entitled,
to the extent of the interest assigned, to the benefits, rights and
remedies of the Bank pursuant to the provisions of this Agreement as fully
as if a party hereto.
3.07 ENTIRE AGREEMENT
This Agreement and the documents referred to herein, and such other
documents as may be executed by the parties contemporaneously herewith or
subsequently pursuant hereto, constitute the entire agreement of the
parties with respect to the subject matter hereof and shall supersede any
prior expressions of intent or understanding with respect to this
transaction.
3.08 NOTICES
Unless otherwise stated, each notice or other communication to be made
hereunder shall be made in accordance with the provisions in Clause 27 of
the Facility Agreement.
3.09 LIABILITY FOR TAXES
The Company agrees to pay, within three (3) Business Days of demand by the
Bank, any taxes imposed on or with regard to the execution, formalization,
notarization, registration or perfection of this Agreement or any other
documentation contemplated hereunder or delivered pursuant hereto. In the
event that the Company fails to pay, and the Bank is required by any
Governmental Authority to pay, any such taxes, the Company shall, within
three (3) Business Days of demand by the Bank, reimburse the Bank for such
6
taxes paid.
3.10 FEES AND EXPENSES
(a) The Company shall, within three (3) Business Days of demand by the
Bank, pay all reasonable and documented costs and expenses, including fees
and expenses of counsel, in connection with the preparation, negotiation,
execution, delivery and administration of this Agreement and any other
document or instrument required to be executed in relation thereto, as
well as costs and expenses, if any, in connection with the registration,
notation and amendment thereof and the issue of any consents or waivers in
connection therewith, and any and all fees, stamps and other taxes, and
shall save the Bank from any and all liabilities with respect to or
resulting from any delay or omission to pay such taxes, if any, which may
be payable or determined to be payable in connection with the execution
and delivery of this Agreements and all other documents or instruments
related thereto.
(b) The Company shall reimburse the Bank, within three (3) Business Days
of demand by the Bank, for all reasonable and documented expenses incurred
by it, including expenses and fees of counsel, (i) in connection with the
enforcement and administration of any part of this Agreement from and
after the occurrence of an Event of Default, or (ii) with respect to any
action which may be instituted by any Person against the Bank in respect
of any of the foregoing or as a result of any transaction, action or
non-action arising from the foregoing, except when such action cannot be
attributed to the fault or negligence of the Company. Such expenses shall
be reimbursed whether or not the Bank gives notice of such Event of
Default or demands acceleration of the payment of the Facilities or takes
other action to enforce the provisions of the Facility Agreement, unless
the Bank waives the Event of Default and in such waiver specifically waive
reimbursement of administration and enforcement expenses resulting from
such waived Event of Default.
(The space below has been left blank intentionally.)
7
PART B
MORTGAGE
SECTION 1. ADDITIONAL DEFINITIONS
1.01 ADDITIONAL DEFINITIONS APPLICABLE TO PART B
Wherever used in this Part B, unless the context otherwise requires, the
following terms shall have the following meanings:
"Chattel" shall mean the movable assets of the Company referred to in
Section 2.02, except (i) the properties and assets of the Company covered
by Part C, to the extent they have already been effectively assigned,
conveyed, set over and transferred to the Bank pursuant to Part C and (ii)
the personal property owned by the Company over which any Lien may from
time to time be granted by the Company pursuant to Clause 19.3.3(v) of the
Facility Agreement.
"Chattel Mortgage" shall mean the mortgage or mortgages created and/or to
be created by the Company pursuant to Section 2.01, together with the
rights, benefits and remedies of the Bank inherent therein or provided for
herein.
"Future Chattel" shall mean the personal properties of the Company other
than those assets classified as Present Chattel.
"Mortgaged Assets" shall mean the Present Chattel and the Future Chattel.
"Mortgage Supplement" shall mean each document in substantially the form
of Schedule 1, to be executed and registered by the Company pursuant to
Section 3.02.
"Present Chattel" shall mean the personal properties of the Company that
exist at the time of the execution of this Agreement, as listed in
Schedule 2.
SECTION 2. CHATTEL MORTGAGE
2.01 CREATION OF THE CHATTEL MORTGAGE
(a) As security for the timely payment, discharge, observance and
performance of the Secured Obligations, and the faithful performance and
observance of the covenants contained herein, the Company
(i) hereby creates, establishes and constitutes in favor of the
Bank, subject to Section 3.03(a), a second ranking mortgage on the Present
Chattel; and
8
(ii) hereby (x) agrees to and, to the extent permitted under
Applicable Law, does create, establish and constitute a first ranking
mortgage on the Future Chattel, upon the coming into existence and/or
acquisition by the Company of ownership of such assets, and (y) further
agrees that, without prejudice to the obligation of the Company to execute
and register the Mortgage Supplements, a first ranking mortgage on the
Future Chattel shall be and, to the extent permitted under Applicable Law,
is hereby, automatically created, established and constituted upon the
coming into existence and/or acquisition by the Company of ownership of
such assets and shall be subject to the same terms and conditions of this
Part B (and of Part A of this Agreement, as applied to this Part B) as are
applicable to the mortgage on the Present Chattel.
(b) The Chattel Mortgage shall include all equity, right, title and
interest of the Company in and to any of the Chattel, if not fully paid
for and owned by the Company at the time of purchase or acquisition, as
well as all rights, indemnities or benefits inherent therein or
appertaining thereto, and the Chattel shall forthwith upon the purchase,
acquisition and delivery thereof, become subject to the Lien constituted
herein, upon the same terms and conditions of this Part B as fully and
completely to all intents and purposes as if owned by the Company on the
date hereof.
2.02 CHATTEL
The Chattel shall consist of the following:
(a) the Present Chattel and the Future Chattel, as well as replacements
and substitutions thereof; and
(b) all rights, benefits and indemnities received by or due to the Company
in lieu of, or inherent to, or in connection with any of the assets
referred to in sub-paragraph (a) of this Section 2.02.
SECTION 3. COVENANTS AND UNDERTAKINGS OF THE COMPANY
3.01 REGISTRATION OF THE CHATTEL MORTGAGE
The Company shall, at its own cost and expense:
(a) promptly after the date of this Agreement, (i) cause the Chattel
Mortgage on the Present Chattel to be registered with the appropriate
Register(s) of Deeds in the Philippines, (ii) perform such other acts,
deeds, registrations, deposits and formalities necessary or reasonably
advisable to give full effect to, ensure the validity of, and render
enforceable against the Company and all third parties, such Chattel
Mortgage and this Part B, and (iii) furnish the Bank with evidence,
reasonably satisfactory to the Bank, that such registration and all acts,
deeds, deposits and formalities, as required under the
9
preceding clauses (i) to (ii) of this Section 3.01(a) have been made and
performed; and
(b) promptly after the date of each Mortgage Supplement, which shall be
executed and delivered in accordance with Section 3.02, (i) cause the
Chattel Mortgage on the Future Chattel covered by such Mortgage Supplement
to be registered with the appropriate Register(s) of Deeds in the
Philippines, (ii) perform such other acts, deeds, registrations, deposits
and formalities necessary or reasonably advisable to give full effect to,
ensure the validity of, and render enforceable against the Company and all
third parties, such Lien created by the Mortgage Supplement, and (iii)
furnish the Bank with evidence reasonably satisfactory to the Bank, that
such registration and all acts, deeds, deposits and formalities, as
required under the preceding clauses (i) and (ii) of this Section 3.01(b)
have been made and performed.
3.02 MORTGAGE SUPPLEMENTS
(a) The Company shall execute and deliver a Mortgage Supplement in respect
of Future Chattel, each with value in excess of US$200,000, that have not
yet been subject to the Lien of the Chattel Mortgage under this Part B,
every six (6) months from the date of the original registration of the
Chattel Mortgage on the Present Chattel.
(b) If required by the Bank, the Company shall deliver to the Bank, in
connection with the registration of each Mortgage Supplement, a legal
opinion or opinions, in form and substance satisfactory to the Bank,
confirming the validity, priority and enforceability of the Chattel
Mortgage as supplemented by such Mortgage Supplement, and such other
matters incident to the Chattel Mortgage and such Mortgage Supplement as
the Bank shall reasonably request.
3.03 COVENANTS
The Company shall perform and observe each of the covenants and agreements
of the Company contained in this Agreement. In addition, unless the Bank
shall otherwise agree in writing, the Company covenants and agrees that:
(a) It shall, within three (3) Business Days from initial drawdown under
the Facility Agreement, (i) secure the discharge of all Liens existing on
the Present Chattel and obtain a certificate of discharge, in form and
substance acceptable to the Bank, from the holders of such Liens, and (ii)
perform all acts and comply with any and all requirements necessary to
convert the Chattel Mortgage on the Present Chattel from a second ranking
mortgage into a first ranking mortgage;
(b) It shall permit officers and designated representatives of the Bank,
after prior notice to the Company and during normal office hours, to visit
and inspect any of the Mortgaged Assets or any of the premises where any
of the
10
Mortgaged Assets may be located as required by the Bank to exercise and
enforce to the fullest extent its rights and remedies hereunder.
(c) It shall within three (3) Business Days of demand reimburse the Bank
or pay as directed by the Bank any amounts incurred or defrayed or caused
to be incurred or defrayed by the Bank in the exercise of its rights and
remedies hereunder, including without limitation, such costs and expenses
referred to in Section 3.04.
(d) (i) It shall warrant and defend its title to, interest in, and/or
possession of the Mortgaged Assets owned by it against the claims and
demands of all persons whomsoever, except the rightful claims of the Bank
pursuant to this Agreement, and (ii) as soon as practicable, but in no
event more than five (5) Business Days after the Company obtains knowledge
of any litigation or governmental proceeding which could reasonably be
expected to have a Material Adverse Effect, give the Bank written notice
of such litigation or proceeding and, at its own cost and expense,
diligently make all defenses and take all actions to protect its rights
under the Mortgaged Assets and those of the Bank hereunder.
(e) In the event the Bank becomes involved in any litigation relating to,
or connected with, its rights over any or all of the Mortgaged Assets, it
shall pay within three (3) Business Days of demand all expenses of the
Bank in such litigation, including a reasonable amount for attorney's fees
to be determined by the Bank, the Chattel Mortgage to stand as security
for such payment.
(f) As soon as practicable, but in any event no more than five (5)
Business Days after the Company obtains knowledge thereof, it shall inform
the Bank in writing of any material loss or damage affecting any of the
Mortgaged Assets (excluding any wear and tear in the ordinary course of
business), together with the extent of such loss or damage and otherwise
of any event which has had or may be reasonably likely to have a Material
Adverse Effect.
(g) It shall not demolish or permit to be demolished any fixture or
installation constituting the Mortgaged Assets, or make or permit to be
made (other than in the normal course of maintenance) any alteration or
substitution in respect of any of the Mortgaged Assets or cause or allow
the Mortgaged Assets to be misused, wasted or to deteriorate (other than
normal wear and tear) or do or permit to be done upon the Mortgaged Assets
anything which would in any manner have or be reasonably likely to have a
Material Adverse Effect.
(h) It shall not sell, assign, alienate, encumber, lease, remove, transfer
or otherwise dispose of, otherwise than in the ordinary course of business
or in accordance with the provisions of the Facility Agreement, any of the
Mortgaged Assets from the premises where they were installed, situated or
used, as the case may be, at the time of the establishment of the Lien
thereon in accordance herewith or from the place where they were intended
to be installed, situated or
11
used, as the case may be, at the time of the purchase or acquisition of
ownership thereof by the Company, in each case.
(i) During the existence of the Chattel Mortgage, it shall at all times
keep the Mortgaged Assets in good condition (normal wear and tear
excepted), promptly making repairs, and, in general, doing or causing to
be done all such acts and things as may be reasonably required or
necessary for the care, preservation and maintenance of the Mortgaged
Assets. In default thereof, the Bank may, in its discretion, keep the
Mortgaged Assets in good repair and condition, and all expenses which the
Bank may incur in connection therewith shall be payable within three (3)
Business Days of demand, plus interest thereon at the rate per annum equal
to the Base Rate, accruing from the date of payment by the Bank to the
date of reimbursement and such amounts shall form part of the Secured
Obligations.
(j) It shall pay and discharge on time all taxes and assessments levied or
assessed on the Mortgaged Assets (except assessments contested in good
faith) and, upon request, surrender to the Bank, certified true copies of
the official receipts for such payment. Should the Company fail to pay
such taxes and assessments, the Bank may, in its discretion, pay such
taxes and assessments. All payments made by the Bank in connection
therewith shall be payable within three (3) Business Days of demand, plus
interest thereon at the rate per annum equal to the Base Rate accruing
from the date of payment by the Bank to the date of reimbursement, and
such amounts shall likewise form part of the Secured Obligations.
3.04 ADDITIONAL COVENANT
The Bank may advance the expenses of litigation and/or the expenses of
execution, notarization, registration and cancellation of contracts or
instruments required to be paid on the part of the Company but with
respect to which the Company has defaulted, and all sums so advanced shall
be reimbursed by the Company within three (3) Business Days of demand with
interest at the rate per annum equal to the Base Rate accruing from the
date of payment by the Bank to the date of reimbursement, and shall, prior
to repayment, be likewise secured by the Chattel Mortgage.
SECTION 4. RIGHTS AND REMEDIES OF THE BANK
4.01 RIGHT TO ACT FOR THE COMPANY IN GENERAL
(a) Without prejudice to any other rights and remedies that the Bank may
have under this Part B or under any Applicable Law, upon its issuance if a
Declaration, the Bank shall have the right, but not the obligation, to do
or cause to be done at the expense of the Company, such acts and things
which are otherwise to be done by the Company under this Part B and
otherwise to take or
12
cause to be taken such actions and measures as the Bank shall deem
necessary or advisable to protect its rights under this Part B and
preserve the value of the Mortgaged Assets.
(b) All reasonable costs, expenses, charges and fees paid or incurred by
the Bank in the exercise of its rights and remedies under this Part B
shall be for the account of the Company, and the Company undertakes to pay
the same or, as the case may be, to reimburse the Bank and/or its agents,
representatives, successors and assigns, as the case may be, for any
monies paid by it within three (3) Business Days of demand with interest
thereon at the rate per annum equal to the Base Rate, computed on the
basis of the actual number of days elapsed and a year of 360 days, from
the date the same shall have been paid by the Bank and/or its agents,
representatives, successors and assigns until actually paid by the
Company. Any sums so advanced with interest thereon as aforesaid shall be
deemed to be secured by the Chattel Mortgage and form part of the Secured
Obligations.
4.02 UNAUTHORIZED SALE AND OTHER DISPOSITION OF MORTGAGED ASSETS
(a) If any of the Mortgaged Assets shall be sold, assigned, transferred,
alienated, leased or in any other manner disposed of otherwise than as
permitted by this Part B, any third party who may have acquired title to
or possession of any such Mortgaged Assets shall be deemed not to have
acquired the same in good faith. Accordingly, without prejudice to any
other rights and remedies that the Bank may have under this Part B or
under Applicable Law, and to the extent permitted under Applicable Law,
the relevant Mortgaged Assets being the subject thereof may be repossessed
by judicial or direct means which may then be available or permitted under
the circumstances, at the joint and several expense of the Company and
such third party, by the Bank or, at the request of the Bank and to the
extent permitted under Applicable Law, shall be repossessed by the Company
free from any Lien whatsoever other than the Chattel Mortgage created
hereby.
(b) Alternatively and to the extent permitted under Applicable Law, at the
option of the Bank, the third party acquiring any of the Mortgaged Assets
otherwise than permitted in this Part B shall be deemed to have assumed
the Company's debt secured under this Agreement as primary co-obligor and
for all intents and purposes, the Chattel Mortgage shall continue in full
force and effect under the terms and conditions of this Part B (and of
Part A, as applied to this Part B) until the Secured Obligations shall
have been repaid in full.
4.03 UNAUTHORIZED LIENS
If the Company shall hereafter create or permit to exist any Lien on any
of the Mortgaged Assets in favor of any third party, the same shall,
without prejudice to any rights and remedies that the Bank may have under
this Part B or under any Applicable Law, be and remain junior in rank to
the Chattel Mortgage
13
hereby created in favor of the Bank until the Termination, notwithstanding
any extension of the term or amendment and modification of any of the
terms, provisions and conditions of this Agreement and notwithstanding any
additional mortgages or other Liens at any time created as security for
the same amounts hereby secured or any other amounts at a later date
advanced by the Bank to the Company, all of which shall be and at all
times remain a first ranking and senior security in relation to such
security created by the Company in favor of such third party.
4.04 DECLARATION
(a) Upon its issuance of a Declaration, the Bank shall have the right to
immediately commence proceedings to foreclose upon the Chattel Mortgage,
and such foreclosure may be carried out, at the option of the Bank, either
extra-judicially under Act No. 1508, as amended, or judicially.
(b) Promptly upon receipt of notification that foreclosure proceedings
have been commenced by the Bank, the Company shall turn over possession of
all of its Mortgaged Assets being foreclosed upon to the Bank or to
another party designated by the Bank, as the Bank shall direct; provided,
however, that the Company shall, at its own expense, deliver possession of
the Chattel owned by it to the Bank or as it may direct, at the place
designated by the Bank or its duly authorized representatives, in each
case in its or their reasonable discretion; and provided further, that if
the Company shall fail to turn over possession of any of the Mortgaged
Assets as required in this Part B, the Bank shall be entitled and
authorized to repossess the same wherever they may be located by whichever
means the Bank shall determine and to enter for that purpose any premises
where any such Mortgaged Assets may be located and transport them, at the
expense of the Company, to the place otherwise determined by the Bank for
turning over possession thereof.
(c) The Company agrees that neither it nor anyone claiming through or
under it, will set up, claim or seek to take advantage of, any
appraisement, valuation, stay, extension, period, redemption or any other
benefit under any Applicable Law in any locality where any property
subject to the Lien hereof may be situated, in order to prevent, hinder or
delay the enforcement or foreclosure of the Chattel Mortgage, or the
absolute sale of the Mortgaged Assets or any part thereof, or the final
and absolute transfer of possession thereof, immediately after such sale
to the purchasers of any such Mortgaged Assets; and the Company for itself
and all who may at any time claim through or under it, hereby waives the
benefit of all such Applicable Laws.
(d) In the event that the Chattel Mortgage shall be foreclosed, whether
judicially or extrajudicially, any sheriff or notary public conducting the
sale at public auction, or the Bank where a direct sale is permitted by
Applicable Law, shall, at the option of the Bank, sell the Mortgaged
Assets individually, in groups or as a whole lot.
14
4.05 WAIVER OF REDEMPTION RIGHT
The Company hereby waives and relinquishes all rights, present and, to the
fullest extent permitted by Applicable Law, future, that it may have by
Applicable Law or otherwise to redeem any of the Mortgaged Assets that may
have been sold, whether in a judicial or extrajudicial foreclosure, and
whether the sale took place at public auction or was a direct sale.
SECTION 5. POWER OF ATTORNEY
5.01 APPOINTMENT AND AUTHORITY OF ATTORNEY-IN-FACT
The Company hereby irrevocably appoints the Bank as its attorney-in-fact,
with right of substitution, so that the Bank or any other Person empowered
by the Bank, shall be authorized, without need of further authorization
from the Company, (i) to execute and deliver Mortgage Supplements and
cause the Chattel Mortgage constituted on the Mortgaged Assets covered by
such Mortgage Supplements to be duly registered with the appropriate
Register(s) of Deeds and other appropriate Governmental Authorities in the
Philippines in the event the Company fails to execute, deliver and
register the Mortgage Supplements in accordance with Section 3.01(b) of
this Part B and (ii) upon the issuance of a Declaration and in
preservation or enforcement of the rights of the Bank under this Part B or
under this Agreement:
(1) to effect the sale of any of the Mortgaged Assets owned by it in
one or more transactions, in accordance with Act No. 1508, as amended, or
other Applicable Law and in such other manner as may be determined by such
attorney-in-fact, including (to the extent permitted by Applicable Law)
the direct sale without public auction of any such Mortgaged Assets at
such price and upon such terms as may be determined by such
attorney-in-fact.
(2) to enter upon any premises where the Mortgaged Assets or any of
them may be located without the need for a court order or other form of
authority otherwise than upon the authority granted herein;
(3) to take and retain possession and control of any such Mortgaged
Assets as receivers without bond or otherwise for the purpose of
foreclosure of the Chattel Mortgage, and transport any of them to any
location as determined by such attorney-in-fact;
(4) to make any repairs, additions and improvements on the Mortgaged
Assets owned by it at the expense of the Company as such attorney-in-fact
shall deem proper or necessary;
(5) to exercise any of the rights of the Company arising under or in
15
connection with this Part B, to designate or delegate to another Person,
in substitution of such attorney-in-fact, the exercise of such rights of
the Company, under such terms as such attorney-in-fact shall deem proper
or necessary;
(6) to collect, claim, receive and deposit all monies in accordance
with this Part B, and to avail itself of all benefits that accrue, and
that may become due and payable to the Company under this Part B;
(7) to institute and maintain such suits and proceedings as such
attorney-in-fact shall deem expedient to prevent any impairment of the
Mortgaged Assets or to preserve and protect the interest of such
attorney-in-fact therein;
(8) to execute and deliver such deeds of conveyance or sale as may
be necessary or proper for the purpose of conveying full title and
ownership, free from any claims and rights of the Company to any of the
Mortgaged Assets, after foreclosure thereof;
(9) to execute and deliver in the name of the Company, and on its
behalf, mortgages (in substantially the form of the Mortgage Supplement)
on the property or assets hereafter acquired by the Company or received by
the Company in replacement, substitution or exchange of any of the
Mortgaged Assets, to do or cause to be done all such acts and things which
are otherwise required to be done by the Company under this Part B for
this purpose and, to advance such sums of money as are necessary to give
full effect to the provisions of this clause (9); and
(10) in general, to sign such agreements and documents and perform
such acts and things required, necessary or, in the opinion of such
attorney-in-fact, advisable to fully accomplish the purpose of this Part
B.
5.02 RATIFICATION OF ATTORNEY'S ACTS
The Company hereby agrees to and ratifies any and all actions and things
performed or done by the Bank pursuant to and in accordance with Section
6.01 as the Company's attorney-in-fact.
5.03 POWER OF ATTORNEY COUPLED WITH INTEREST
This special power of attorney shall be deemed coupled with an interest
and cannot be revoked by the Company until, and shall be automatically
revoked upon, the Termination. Upon the issuance of a Declaration, the
Company shall abstain from exercising any rights under any contract to
which it is a party which shall be inconsistent with the exercise of the
rights, powers, remedies and functions herein granted to the Bank as the
Company's attorney-in-fact, provided, however, that nothing herein shall
prevent the Company from, prior to the exercise by the Bank of any such
rights, powers and remedies and functions
16
in accordance with this Part B, undertaking the Company's operations in
the ordinary course of business.
SECTION 6. MISCELLANEOUS PROVISIONS
6.01 CONTINUING AND PARTIAL SECURITY
(a) The Company hereby duly notes and agrees that the security created by
this Part B in favor of the Bank in the form of a Chattel Mortgage in
accordance with the provisions of this Part B shall be a continuing
security and shall remain in full force and effect until the Termination.
Accordingly, the validity and enforceability of the Chattel Mortgage
hereunder shall not be affected or impaired by any of the following: any
extension of time, forbearance or concession given to the Company; any
assertion of, or failure to assert, or delay in asserting, any right,
power or remedy against the Company, or in respect of any other security
for any of the Secured Obligations; any modification or amplification of
any of the provisions of this Agreement or the Facility Agreement; any
failure of the Company to comply with any requirement of any Applicable
Law; the dissolution, liquidation, reorganization or any other alteration
of the legal structure of the Company; any purported or actual assignment
of any of the Secured Obligations by the Bank to any other Person; any
other circumstance (other than payment in full of the Secured Obligations
by the Company) which might otherwise constitute a legal or equitable
discharge of a security; or to the fullest extent permitted by Applicable
Law, any voidability or unenforceability of any provision of this
Agreement or the Facility Agreement.
(b) The Company hereby agrees that the security created in accordance with
the provisions of this Part B shall be construed as a partial security for
the Secured Obligations, and is in addition to any other security that the
Bank may, now or in the future, obtain to secure the same obligations.
Accordingly, in the event that the monies at any time realized by the Bank
in the judicial or extrajudicial foreclosure of the Chattel Mortgage on
any of the Mortgaged Assets and/or in the exercise of any of its rights,
powers and remedies under this Part B shall not be sufficient to pay and
discharge all the Secured Obligations, any remaining unpaid balance
thereof shall remain due and payable by the Company in accordance with the
terms of this Agreement and the Facility Agreement and all rights, powers
and remedies of the Bank in respect thereof are hereby reserved.
6.02 PROCEEDS RECEIVED BY BANK
All monies realized and received by the Bank in the exercise of its
rights, powers and remedies under this Part B, including, without
limitation, any proceeds realized as a result of expropriation or
otherwise in respect of the Mortgaged Assets pursuant to the provisions of
this Part B shall be applied by
17
the Bank towards the payment or performance of the Secured Obligations in
accordance with the provisions of the Facility Agreement and this
Agreement. Any surplus monies remaining after payment in full of the
Secured Obligations shall be reconveyed to the Company. For the avoidance
of doubt, it is understood that the Company shall remain liable to the
extent of any deficiency between the amount of the proceeds of the
Mortgaged Assets and the aggregate amount of the Secured Obligations.
6.03 CERTIFICATE OF BANK BINDING
Any written notice delivered by the Bank in accordance with this Agreement
as to the amounts of principal of, and interest, charges, fees and
expenses or any other amount due and payable at any time by the Company
under this Agreement, shall, in the absence of manifest error, be prima
facie evidence in any legal proceedings with respect to the Chattel
Mortgage and any other provisions of this Part B.
6.04 RATIFICATION OF ACTS IN GENERAL OF BANK
The Company hereby confirms and ratifies all actions, acts or things
taken, performed or done by the Bank (other than those taken, performed or
done in the Bank's gross negligence or wilful misconduct) in the exercise
of any or all rights, powers and remedies granted to it under this Part B,
including without limitation, the rights, powers and remedies referred to
in Sections 4 and 5.
6.05 RIGHTS, POWERS AND REMEDIES
(a) The rights, powers and remedies of the Bank provided for in this Part
B are not exclusive of, but are in addition to, any other rights, powers
and remedies that the Bank may have under Applicable Law or under any
other provision of this Agreement. The Bank shall not be liable to the
Company or any other Person (except as otherwise provided in this
Agreement) for any action taken or not taken by it under this Part B. One
or more exercises of the rights, powers and remedies granted in this Part
B shall not extinguish or exhaust such rights, powers or remedies until
the Termination shall have occurred. If the Secured Obligations are now or
hereafter further secured by any real estate mortgages, chattel mortgages,
pledges, contracts or guaranty, assignments or other security, including,
without limitation, pursuant to Part C of this Agreement, the Bank may
exhaust the remedies granted under any of said security instruments
including, without limitation, under Part C of this Agreement, either
concurrently or independently, and in such other manner as the Bank in the
exercise of its discretion may determine.
(b) No course of dealing and no delay in exercising, or omission to
exercise, any right, power or remedy accruing to the Bank upon issuance of
any Declaration or other circumstance under the Chattel Mortgage and/or
this Part B shall impair any such right, power or remedy or be construed
to be a waiver
18
thereof or an acquiescence thereto; nor shall the action of the Bank in
respect of such default, Event of Default or circumstance, or any
acquiescence by it thereto, affect or impair any right, power or remedy of
the Bank in respect of any other Declaration.
6.06 TERMINATION; DISCHARGE OF SECURITY; REINSTATEMENT
On or after the Termination, the Bank, at the written request and expense
of the Company, will thereafter promptly execute and deliver to the
Company the proper instrument or instruments identified by the Company
acknowledging the termination of this Part B and Part A as applicable to
this Part B, and will promptly duly release from the Chattel Mortgage such
of the Mortgaged Assets as have not theretofore been sold or otherwise
foreclosed, applied or released pursuant to this Part B.
6.07 BANK WITHOUT OBLIGATIONS
Notwithstanding anything contained herein, this Part B and the Chattel
Mortgage are only intended as security for the Secured Obligations, and
the Bank shall not be obligated to perform or discharge, and do not hereby
undertake to perform or discharge, any obligation, duty, or liability of
the Company under or relating to any of the Mortgaged Assets.
(The space below has been left blank intentionally.)
19
PART C
ASSIGNMENT
SECTION 1. ADDITIONAL DEFINITIONS
1.01 ADDITIONAL DEFINITIONS APPLICABLE TO PART C
Wherever used in this Part C, unless the context otherwise requires, the
following terms shall have the following meanings:
"Assigned Accounts" shall mean any account established or to be
established by the Company at any bank or financial institution, including
the accounts to which all proceeds of the Assigned Receivables shall be
deposited in trust for the benefit of the Bank, and including, without
limitation, the accounts listed in Schedule 3.
"Assigned Contracts" shall mean any and all contracts and agreements
(except (i) the Assigned Receivables relating thereto, to the extent they
have been assigned, conveyed, set over and transferred pursuant to this
Part C and (ii) existing and future contracts of the Company that contain
specific prohibitions against assignment by the Company of its rights and
interest thereunder) between the Company and its customers, whether such
contracts and agreements are existing or hereafter from time to time
entered into by the Company.
"Assigned Properties" shall mean the Assigned Accounts, the Assigned
Contracts, and the Assigned Receivables.
"Assigned Receivables" shall mean all monies now or hereafter payable to
the Company under the Assigned Contracts.
"Consents" shall mean the respective written consents (substantially in
the form attached as Schedule 5) of the Depositaries to the assignment of
the Assigned Accounts to the Bank as set out in this Part C.
"Depositaries" shall mean the banks and financial institutions in which
the Assigned Accounts are maintained.
"Obligors" shall mean the parties to the Assigned Contracts (other than
the Company), the Depositaries, and other Persons against whom claims for
payment of the Assigned Receivables may be made.
SECTION 2. ASSIGNMENT AND SECURITY INTEREST
20
2.01 OUTRIGHT ASSIGNMENT OF RECEIVABLES
In consideration of the extension of the Facilities to the Company, and to
ensure the payment by the Company of the Secured Obligations, and for
other good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged by the Company, the Company does hereby assign,
convey, set over and transfer unto the Bank, absolutely and
unconditionally, all of the Company's rights, title and interest in
respect of the Assigned Properties, including the right of the Company to
receive payment of the Assigned Receivables from the Obligors. The
assignment, conveyance, setting over and transfer to the Bank under this
Agreement extend to all Assigned Properties of the kind described in this
Part C, which the Company may establish, enter into or acquire at any time
during the continuation of this Agreement. For the avoidance of doubt, the
assignment, conveyance, setting over and transfer hereunder of the
Assigned Properties shall constitute, for all purposes, a present,
irrevocable and absolute assignment of such receivables subject to no
contingencies or conditions.
2.02 DELIVERY OF CONSENTS
(a) The Company shall notify the Depositaries, substantially in the form
attached as Schedule 4, of the assignment of the Assigned Accounts
contemplated in this Part C, and secure the Consents (i) within three (3)
Business Days of the execution of this Agreement, with respect to the
Company's existing Assigned Accounts or (ii) with respect to Assigned
Accounts to be established by the Company after the execution of this
Agreement, as soon as practicable after such Assigned Accounts are
established. The Company shall further secure the confirmation of the
Depositaries that they shall not exercise any right of set-off against the
Company in respect of any and all funds available in the Assigned
Accounts, other than pursuant to any netting or set-off arrangement
entered into in the ordinary course of banking arrangements for the
purpose of netting debit and credit balances.
(b) The Company agrees and confirms that the execution and delivery of the
Consents shall constitute an unconditional and irrevocable instruction
from the Company and the Bank to the Depositaries:
(1) to comply with all directives of the Bank in respect of the
Assigned Accounts not inconsistent with this Agreement; and
(2) that all funds available or to be deposited from time to time in
the Assigned Accounts shall be maintained in such accounts in trust for
the benefit of the Bank until all Secured Obligations shall have been paid
and performed in full or as otherwise directed by the Bank.
21
2.03 EFFECTIVENESS OF ASSIGNMENT
For the avoidance of doubt, it is expressly understood that the assignment
of the Assigned Properties pursuant to Section 2.01 takes effect
immediately upon the execution of this Agreement, whereupon all of the
right, title, interest and benefit of the Company in and to the Assigned
Properties shall vest upon and accrue in favor of the Bank, to the
exclusion of all other Persons. Notwithstanding the foregoing, however,
the assignment by the Company of' the Assigned Properties as contemplated
herein is not intended and shall not be deemed to result in the discharge
or release of the Company's obligation to pay or perform the Secured
Obligations or any part thereof, it being understood that any such
discharge or release shall take effect if and only to the extent that the
proceeds of the Assigned Properties have been received by the Bank and
applied by it towards the payment of all Secured Obligations. Upon the due
and full payment of all Secured Obligations, and the faithful performance
and observance by the Company of its covenants contained in this
Agreement, the assignment, conveyance and transfer made under this Part C
shall become null and void; otherwise, they shall remain in full force and
effect.
2.04 POWER OF ATTORNEY
(a) The Company hereby irrevocably appoints the Bank as its
attorney-in-fact with right of substitution, so that the Bank or any other
Person empowered by the Bank shall be authorized upon the issuance of a
Declaration by the Bank, without need of further authorization from the
Company:
(1) to send written notice to all Obligors (in respect of the
Assigned Receivables), instructing any or all of them to pay all monies
due and owing to the Company from time to time to any of the Assigned
Accounts;
(2) to file any claim, institute and maintain such suits and
proceedings or take any action as such attorney-in-fact shall deem
expedient or desirable for the collection of any Assigned Receivable;
(3) to exercise any of the rights of the Company arising under or in
connection with any Assigned Contract and to designate or delegate to
another Person or entity, in substitution of such attorney-in-fact, the
exercise of such rights of the Company, under such terms as such
attorney-in-fact shall deem proper or necessary;
(4) to withdraw all or any funds available in or thereafter received
into any of the Assigned Accounts; and
(5) in general, to sign such agreements and documents and perform
such acts and things required, necessary or, in the opinion of such
attorney-in-fact, advisable, to fully accomplish the purpose of this Part
C.
22
(b) The Company hereby confirms and ratifies any and all actions and
things properly performed or done by the Bank as the Company's
attorney-in-fact or any of its representatives hereunder in each case
pursuant to the powers granted hereunder.
(c) This special power of attorney shall be deemed coupled with an
interest, and cannot be revoked by the Company until, and shall be
automatically revoked upon, the Termination.
2.05 COSTS AND EXPENSES
All reasonable costs, expenses, charges and fees paid or incurred by the
Bank in the exercise of any of the rights, remedies or powers granted
under this Part C shall be for the account of the Company, and the Company
undertakes to pay the same or, as the case may be, to reimburse the Bank
and/or its agents, representatives, successors and assigns as the case may
be, for any monies paid by it within three (3) Business Days of demand
with interest thereon at the rate per annum equal to the Base Rate,
computed on the basis of the actual number of days elapsed and a year of
360 days, from the date the same shall have been paid by the Bank and/or
its agents, representatives, successors and assigns until actually paid by
the Company. Any sums advanced with interest thereon as aforesaid shall
form part of the Secured Obligations.
2.06 PROTECTION OF THE BANK'S INTEREST
(a) The Company shall do nothing to impair the rights of the Bank in
respect of the Assigned Properties, provided, however, that nothing herein
shall prevent the Company, prior to the exercise by the Bank of any such
rights in accordance with the terms of this Part C, from undertaking the
Company's operations in the ordinary course of business. The Company shall
assume all liabilities, obligations and responsibilities in connection
with the Assigned Properties and the liability of the Company with respect
to the Secured Obligations shall in no way be affected or diminished by
reason of the fact that any of the Assigned Properties may be lost,
destroyed, stolen, damaged, impaired or for any reason whatsoever
unavailable to the Company.
(b) The Company shall ensure that all Assigned Receivables are deposited
in any of the Assigned Accounts.
2.07 FURTHER ASSURANCES
The Company agrees that at any time and from time to time, at its sole
expense, it shall promptly execute and deliver all further notices,
instruments and documents (including, without limitation, any additional
or supplemental assignment agreement or security agreement), and take all
further action that, in
23
the reasonable opinion of the Bank, may be reasonably necessary in order
to perfect, preserve and protect the assignment, conveyance, setting over
and transfer of Assigned Properties.
SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS
The Company represents, warrants and covenants, which representations,
warranties and covenants shall survive the execution and delivery of this
Agreement and the making and repayment of the Secured Obligations, as
follows:
3.01 NO LIENS
The Company shall defend the Assigned Properties against all claims and
demands of all Persons at any time claiming the same or any interest
therein adverse to the Bank. Without limitation to the preceding
sentences, the Company shall not assign, charge, convey, sell, set over,
transfer or grant any security interest in the Assigned Properties other
than pursuant to this Part C and any other Part of this Agreement or as
otherwise provided pursuant to the Facility Agreement.
3.02 CONSENTS
The Company shall obtain after the date of the execution and delivery of
this Agreement such other consents of Persons and Governmental Approvals
as may be required under Applicable Law or any of the Assigned Contracts
or, in the reasonable judgment of the Bank, necessary or appropriate after
the date of this Agreement (i) for the assignment, conveyance, setting
over and transfer of the Assigned Properties to the Bank, (ii) for the
performance of this Part C by the Company, (iii) for the perfection or
maintenance of the assignment, conveyance, setting over and transfer
effected hereby with respect to the Assigned Properties or (iv) for the
exercise by the Bank of the rights, remedies and powers provided for in
this Part C or the remedies in respect of the Assigned Properties pursuant
to this Part C. Notwithstanding the foregoing, any notice of the
assignment, conveyance, setting over and transfer by the Company to the
Bank of the Assigned Receivables and the Assigned Contracts may only be
given to the Obligors after a Declaration has been issued.
3.04 RECOURSE
This Part C is made with full recourse to the Company and pursuant to and
in reliance upon all the warranties, representations, covenants and
agreements on the part of the Company contained herein, in any other Part
of this Agreement, or in the Facility Agreement.
24
SECTION 4. PROCEEDS OF ASSIGNED RECEIVABLES
4.01 APPLICATION OF PROCEEDS
The Company agrees that the proceeds of the Assigned Receivables held in
any of the Assigned Accounts and other funds available in any of the
Assigned Accounts shall be applied towards the payment of the Secured
Obligations as and when such obligations fall due under the terms of the
Facility Agreement. For the avoidance of doubt, it is understood that the
Company shall remain liable to the extent of any deficiency between the
amount of the proceeds of the Assigned Receivables or Assigned Accounts
received by the Bank and the aggregate amount of the Secured Obligations.
In the event the Bank shall receive any amount in excess of the
outstanding Secured Obligations, it shall, after all the Secured
Obligations shall have been paid in full in accordance with their terms,
reconvey such excess amounts in favor of the Company. Any funds remaining
in the Assigned Account after full payment of all Secured Obligations
shall be reconveyed to the Company.
4.02 PAYMENTS MADE TO COMPANY
If the Company shall directly receive any payments in respect of the
Assigned Properties, the Company shall receive such payments in trust for
the benefit of the Bank, shall segregate such payments from its other
funds, and shall forthwith and in no event later than five Business Days
deposit such payments to any of the Assigned Accounts or, in the event a
Declaration has been issued, deliver such payments directly to the Bank.
4.03 WITHDRAWALS
The Company shall be entitled to receive, withdraw or otherwise transfer
any credit balance from time to time in the Assigned Accounts in the
ordinary course of business prior to the occurrence of an Event of
Default. Upon the occurrence of an Event of Default and for so long as
such Event of Default is continuing, the Company shall not be entitled to
receive, withdraw or otherwise transfer any credit balance from the
Assigned Accounts without the prior consent of the Bank.
SECTION 5. REMEDIES UPON ISSUANCE OF A DECLARATION
5.01 REMEDIES IN RESPECT OF ASSIGNED ACCOUNTS AND ASSIGNED RECEIVABLES
(a) The Company agrees that, if any Declaration shall have been issued,
then and in every such case, subject to any mandatory requirements of
Applicable Law then in effect, the Bank, in addition to any rights now or
25
hereafter existing under Applicable Law or as set forth elsewhere in this
Agreement, may:
(1) instruct the Obligors to make any payments in respect of the Assigned
Receivables directly to the Bank, and apply the same towards the payment
of all Secured Obligations; and
(2) take any credit balances in the Assigned Accounts, and apply the same
towards the payment of all Secured Obligations.
(b) For the avoidance of doubt, it is understood that the Company shall
remain liable to the extent of any deficiency between the amount of funds
received by the Bank under Section 5.01(a) and the aggregate amount of the
Secured Obligations.
5.02 DISPOSITION OF THE ASSIGNED CONTRACTS
(a) Any Assigned Contract may be sold, transferred assigned or otherwise
disposed of under one or more contracts or as an entirety, and without the
necessity of gathering at the place of sale the property to be sold, and
in general, in such manner, at such time or times, at such place or places
and on such terms as the Bank may, in compliance with any mandatory
requirements of Applicable Law, determine to be commercially reasonable.
Any such disposition, which shall be a private sale or other private
proceeding permitted by such requirements, shall be made upon not less
than ten days' written notice to the Company specifying the time at which
such disposition is to be made and the intended sale price or other
consideration therefore, and shall be subject, for the ten days after the
giving of such notice, to the right of the Company or any nominee of the
Company to acquire the Assigned Contracts involved at a price or for such
other consideration equal to the intended sale price or other
consideration so specified. If, under mandatory requirements of Applicable
Law, the Bank shall be required to make disposition of the Assigned
Contracts within a period of time which does not permit the giving of
notice to the Company as hereinabove specified, the Bank need give the
Company only such notice of disposition as shall be reasonably practicable
in view of such mandatory requirements of Applicable Law.
(b) The Company hereby irrevocably appoints the Bank as its
attorney-in-fact, with full power of substitution, so that the Bank, or
any Person empowered by the Trustee, shall be authorized to sell, assign
or otherwise dispose of the Assigned Contracts or any part thereof
pursuant to the provisions of the preceding paragraph, and, in general, to
do or cause to be done all such acts and things which are otherwise
required to be done by the Company under this Section 5.02.
26
5.03 WAIVER OF CLAIMS
The Company hereby waives, to the extent permitted by Applicable Law,
notice and judicial hearing (except as to the issue of liability under
this Part C or under the other Parts of this Agreement) in connection with
the Bank's disposition of any of the Assigned Contracts, including,
without limitation, any and all prior notice and hearing for any
prejudgment remedy or remedies and any such right which the Company would
otherwise have under the constitution or any statute of the Philippines or
any political subdivision thereof, and the Company hereby further waives,
to the extent permitted by Applicable Law:
(i) all damages occasioned by such disposition except any damages
which are the direct result of the gross negligence or wilful misconduct
of the Bank or any Person acting on its behalf or instruction;
(ii) all other requirements as to the time, place and terms of sale
or other requirements with respect to the enforcement of the Bank's rights
hereunder; and
(iii) all rights of redemption, appraisement, valuation, stay,
extension or moratorium now or hereafter in force under any Applicable Law
in order to prevent or delay the enforcement of this Part C or the
absolute sale, assignment or transfer of the Assigned Contracts or any
portion thereof, and the Company, for itself and all who may claim under
it, insofar as it or they now or hereafter lawfully may, hereby waives the
benefit of all such laws.
5.04 APPLICATION OF PROCEEDS
The proceeds of the sale, assignment, transfer or other disposition of any
Assigned Contract pursuant to Section 5.02 shall be applied towards the
full payment of all Secured Obligations. For the avoidance of doubt, it is
understood that the Company shall remain liable to the extent of any
deficiency between the amount of such proceeds and the aggregate amount of
the Secured Obligations.
(The space below has been left blank intentionally.)
27
PART D
SIGNATURE PAGES
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
by their respective duly authorized officers as of the date first above written.
AUTOMATED TECHNOLOGY (PHIL.) INC.
By:
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman of the Board
/s/ Xxxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxx
Title: CEO
THE DEVELOPMENT BANK OF SINGAPORE LTD.
By:
/s/ Xxxx Xxx
-------------------------------------
Name: Xxxx Xxx
Title: Vice President
/s/ Sia Moon Joon
-------------------------------------
Name: Sia Moon Joon
Title: Notary Public Singapore
SIGNED IN THE PRESENCE OF:
/s/ Witness /s/ Witness
------------------------------------- --------------------------------------
28
AFFIDAVIT OF GOOD FAITH
We swear that the Chattel Mortgage created by Part B of the foregoing Omnibus
Security Agreement is made for the purpose of securing the obligations specified
therein, and for no other purpose, and that the same are just and valid
obligations and not one entered into for the purpose of fraud.
AUTOMATED TECHNOLOGY (PHIL.) INC.
By:
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman of the Board
/s/ Xxxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxx
Title: CEO
/s/ Sia Moon Joon
-------------------------------------
Name: Sia Moon Joon
Title: Notary Public Singapore
29
ACKNOWLEDGMENT AND CERTIFICATE OF OATH
REPUBLIC OF THE PHILIPPINES)
Makati City )ss.
BEFORE ME, a Notary Public for and in Feb 06, 2003, Philippines, personally
appeared:
Name Comm. Tax Certificate/Passport No. Date/Place Issued
---- ---------------------------------- -----------------
Xxxxxx X. Xxxxxxx 14404666 Makati - 1-09-03
known to me and by me to be the same persons who executed the foregoing Omnibus
Security Agreement and who further acknowledged to me that the same is their
free and voluntary act and deed and the free and voluntary act and deed of the
corporations they respectively represent. I further certify that Mr./Xx. Xxxxxx
X. Xxxxxxx of Automated Technology (Phil.) Inc. signed the above Affidavit of
Good Faith and made oath to the truth thereof.
The foregoing instrument relates in part to a mortgage covering personal
properties identified and described in Schedule 2 thereto, and the instrument
consists of forty-three (43) pages, including the pages of the Schedules annexed
thereto and the pages on which this Acknowledgment and Certificate of Oath is
written, executed by the parties and their instrumental witnesses on the
Signature Pages and on the left margin of each and every other page thereof.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my seal this
6th day of February, 2003, at the place written above.
Doc. No. 226 ;
Page No. 047 ; /s/ Xxxxxxxxx Xxxxx X. Xxxxxxx
Book No. 11 ; Notary Public
Series of 2003.
30
GUARANTEE
1. In consideration of The Development Bank of Singapore Ltd., a banking
corporation incorporated in Singapore, with an office at 0, Xxxxxxx Xxx,
#00-00, XXX Xxxxxxxx Xxxxx Xxx, Xxxxxxxxx 000000, ("the Lender") agreeing
to make available the loan facilities (the "Facilities") to Automated
Technology (Phil) Inc., a company incorporated in Philippines and having
its registered office at Light Industry & Science Park of the Philippines,
XXXX 0000, Xxxxxxx, Xxxxxx, Xxxxxxxxxxx ("the Borrower") pursuant to the
terms and conditions set out in a Term Loan and Revolving Credit Facility
Agreement dated as of 29 January, 2003 between the Borrower and the Lender
(as such agreement may hereafter be amended, restated, supplemented or
otherwise modified from time to time, the "Facility Agreement"), we,
Infiniti Solutions Pte Ltd, a company incorporated in Singapore and having
a registered office at 0000 Xxxxx Xxxx, #00-00, Xxxxxx Xxxx Xxxxxxx,
Xxxxxxxxx 000000 ("the Guarantor") HEREBY IRREVOCABLY AND UNCONDITIONALLY
guarantees to pay and satisfy the Lender on demand as principal debtor and
not merely as surety all sums of money which are now or shall from time to
time and at any time hereafter be due or owing to the Lender by the
Borrower under the Facility Agreement (the "Guaranteed Money", which
expression shall include any part thereof). Terms used and not otherwise
defined herein shall have the meanings ascribed to such terms in the
Facility Agreement.
2. The Guarantor shall:
(a) maintain a consolidated gearing ratio not exceeding (i) 1.85 to 1.0
as of 31 December 2002 and 30 June 2003, (ii) 1.75 to 1.0 as of 31
December 2003 and 30 June 2004 and (iii) 1.50 to 1.0 as of 31
December 2004 and as of the end of any covenant testing period
thereafter. The consolidated gearing ratio is defined as the ratio
of (i) Consolidated Liabilities of the Guarantor and its
Subsidiaries net of payables to (a) the former shareholders of the
Borrower under the Share Purchase Agreement dated 20 November 2002
between the Guarantor and such shareholders and (b) the former
shareholders of Viko Technology, Inc. under the Purchase Agreement
dated 18 December, 2001 between the Guarantor and such shareholders
to (ii) Consolidated Networth of the Guarantor and its Subsidiaries.
Consolidated Networth shall include redeemable preference shares for
periods up to 31 December 2005 only. The consolidated gearing
covenant shall be tested on a semi-annual basis on every 30 June and
31 December until the Guaranteed Money has been fully paid or
satisfied. "Consolidated Liabilities" and "Consolidated Networth"
shall have the meanings ascribed to them in the Facility Agreement
except that references to "the Borrower" therein shall be construed
as references to the Guarantor;
(b) ensure that there is no significant change in the key management of
the Guarantor until the Guaranteed Money has been fully paid or
satisfied;
(c) ensure that sufficient funds in new equity are raised by the
Guarantor for the payment of the cash components under the purchase
consideration of Viko Technology, Inc. and the Borrower;
(d) ensure that any redemption of preference shares by the Guarantor
shall not cause an Event of Default under the Facility Agreement;
(e) give the Lender or an Affiliate thereof at least ten Business Days
to match offers of other financial institutions in connection with
the future debt financing needs of the Guarantor and any Affiliate
thereof;
(f) give the Lender or an Affiliate thereof at least ten Business Days
to match offers of other financial institutions in connection with
the future fund raising needs of the Guarantor and any Affiliate
thereof in equity markets where the Lender or an Affiliate has a
strong presence;
(g) ensure that it is the legal and beneficial owner, direct or
indirect, of all of the outstanding capital stock of the Borrower;
(h) notify the Lender immediately in the event that there is a
threatened action or proceeding (other than those of a frivolous or
vexatious nature or those disputed promptly in good faith and by
appropriate proceedings) affecting the Guarantor or its Subsidiaries
before any governmental authority, arbitrator or referee that could
reasonably be expected to materially and adversely affect the
financial condition or operations of the Guarantor or any of its
Subsidiaries;
(i) file all income tax returns required to have been filed and pay all
taxes, assessments, charges and other amounts due thereunder, except
to the extent disputed by appropriate proceedings diligently pursued
and to the extent that appropriate reserves are being maintained
with respect to any amounts so disputed;
(j) represent that the Original Financial Statements of the Guarantor
fairly represent the consolidated financial condition and operations
of the Guarantor as at the end of and for the relevant financial
period; and
(k) not amend or alter its memorandum and articles of association
relating to its borrowing powers and its principal business
activities without the prior written consent of the Lender, such
consent not to be unreasonably withheld.
3. This Guarantee shall not be considered as satisfied by any intermediate
payment or satisfaction of the Guaranteed Money but shall be a continuing
security and shall extend to cover all or any part of the Guaranteed Money
which shall for the time being constitute the balance due or owing from the
Borrower to the Lender upon any account or otherwise as aforesaid.
4. The Lender may at any time and without affecting its rights against the
Guarantor determine enlarge or vary any credit to the Borrower, vary
exchange abstain from perfecting or release any other securities held or to
be held by the Lender for or on account of the Guaranteed Money, open a
fresh account or accounts and/or continue with any account or accounts
current or otherwise with or for the Borrower renew bills and promissory
notes in any manner and compound with give time for payment, accept
compositions from and make any other arrangements with the Borrower or any
obligors on bills notes or other securities held or to be held by the
Lender for and on behalf of the Borrower.
5. This Guarantee shall be in addition to and shall not be in any way
prejudiced or affected by any collateral or other security now or hereafter
held by the Lender for the Guaranteed Money nor shall such collateral or
other security or any lien to which the Lender may be otherwise entitled or
the liability of any person or persons not parties hereto for all or any
part of the Guaranteed Money be in any way prejudiced or affected by this
Guarantee. The Lender shall have full power at its discretion to give time
for payment or to make any other arrangement with any such other person or
persons without prejudice to this Guarantee or the Guarantor's liability
hereunder. All monies received by the Lender from the Guarantor or the
Borrower or any person or persons liable to pay the same may be applied by
the Lender to any account or item of account or to any transaction which
the same may be applicable.
6. No disposition assurance security or payment which may be avoided under any
law relating to bankruptcy or under any provisions of the Singapore
Companies Act (Cap 50) or any statutory modification thereof or under any
other applicable laws or is otherwise avoided in any manner and no release
settlement or discharge which may have been given or made on the faith of
any such disposition assurance security or payment shall prejudice or
affect the Lender's right to recover from the Guarantor monies to the full
extent of this Guarantee as if such disposition assurance security payment
release settlement or discharge had never been granted given or made.
7. All dividends compositions and monies received by the Lender from the
Borrower or from any other company person or estate capable of being
applied by the Lender in reduction of the indebtedness of the Borrower
shall be regarded for all purposes as payments in gross and in the event of
bankruptcy or winding up or any receiving order or other analogous order
being made or any other analogous events occurring under any applicable
laws in relation to the Borrower the Lender shall be entitled to prove in
the bankruptcy winding up dissolution or liquidation of the Borrower in
respect of the whole of the Borrower's indebtedness to the Lender and
without any
2
right of the Guarantor to be subrogated to the Lender in respect of any
such proof until the Lender shall have received in the bankruptcy winding
up or liquidation of the Borrower or from other sources one hundred (100)
cents on the dollar.
8. Any payments by the Guarantor hereunder shall be made without any set-off
or counterclaim and shall be free and clear of any taxes including
withholding taxes, import or levies. If the Guarantor is required to make
any payment hereunder subject to the deduction or withholding of tax, the
Guarantor shall increase the sum payable by it to the extent necessary to
ensure that, after making the required deduction or withholding, the Lender
receives and retains (free from any liability in respect of any such
deduction or withholding) a net sum equal to the sum which it would have
received and so retained had no such deduction or withholding been made or
required to be made. The Guarantor shall thereafter submit all tax receipts
or such evidence of payment of tax to the Lender as soon as reasonably
practicable. In the event that the Lender actually receives the benefit of
a tax credit, allowance or refund resulting solely and directly from a
deduction or withholding in respect of which the Guarantor has paid an
additional amount under this Clause, the Lender shall reimburse to the
Guarantor such part of that benefit as, will leave it (after such
reimbursement) in a position which is no more and no less favourable than
the position in which it would have been if such deduction, withholding,
payment or liability had not been made or incurred.
9. If any goods and services tax ("GST" which expression includes any tax of a
similar nature which may be substituted or levied in addition to it)
whatsoever is now or hereafter chargeable by law on any payment hereunder,
the Guarantor shall pay such GST in addition to all other sums payable
hereunder or relating hereto and agrees to indemnify the Lender against the
payment if the Lender is required by law to collect and make payment in
respect of such GST. The Lender may debit the Guarantor's account(s) for
such GST including default interest payable in the same manner as may be
provided herein or in any agreement relating hereto for the Facilities
and/or other charges or as the Lender may prescribe from time to time,
notwithstanding such debiting may result in the Guarantor's account
becoming overdrawn Provided that the Lender shall forthwith upon making
such debit give notice thereof to the Guarantor.
10. The Lender may but is not bound to resort for the Lender's own benefit to
any other means of payment at any time and in any order the Lender deems
fit without thereby diminishing the Guarantor's liability hereunder and the
Lender may exercise its rights under this Guarantee in force either for
payment of the ultimate balance after resorting to other means of payment
or for the balance due notwithstanding that other means of payment have not
been resorted to and in the latter case without entitling the Guarantor to
any benefit from such other means of payment so long as the Guaranteed
Money remains owing and unpaid by the Borrower to the Lender and in
addition the Lender may require payment by the Guarantor of its liability
without taking any proceedings first to enforce such payment by the
Borrower.
11. If any monies shall be paid by the Guarantor to the Lender under this
Guarantee, the Guarantor shall not in respect of the amount so paid seek to
enforce repayment or to exercise any other rights or legal remedies of
whatsoever kind which may accrue howsoever to the Guarantor in respect of
the amount so paid until the Guaranteed Money owing from the Borrower to
the Lender has been fully paid to the Lender. The Guarantor will not prove
in competition with the Lender for any monies owing by the Borrower to the
Guarantor on any account whatsoever and/or in respect of any monies due or
owing from the Borrower to the Lender but will give to the Lender the full
benefit of any proof which the Guarantor may be able to make in the
bankruptcy or winding up or liquidation of the Borrower or in any
arrangement or composition with creditors until the Lender shall have
received all monies guaranteed hereunder outstanding and remaining unpaid
by the Borrower to the Lender.
12. Any indebtedness of the Borrower now or hereafter held by the Guarantor
shall be fully subordinated to the indebtedness of the Borrower to the
Lender under the Facility Agreement and such indebtedness of the Borrower
to the Guarantor if the Lender so requires shall be collected enforced and
received by the Guarantor and shall be paid over to the Lender on account
of the indebtedness of the Borrower to the Lender but without reducing or
affecting in any manner the liability of the Guarantor under this Guarantee
until all the Guaranteed Money has been fully paid to the Lender.
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13. The Guarantor agrees and acknowledges that the obligations and liabilities
of the Guarantor hereunder shall be absolute and unconditional and in
addition to the other provisions of this Guarantee, shall not be abrogated,
prejudiced, affected or discharged:
(a) by the Lender granting explicitly or by conduct or otherwise,
whether directly or indirectly, to the Borrower, the Guarantor or
any other person of any time, forbearance, concession, credit
compounding, compromise, waiver, variation, renewal, release,
discharge or other advantage or indulgence;
(b) by the Lender failing neglecting or deciding not to recover the
moneys hereby guaranteed or any part thereof by the realisation of
any collateral or other security or in any manner otherwise or in
the event of enforcement by the Lender of any collateral or other
security or any remedy or otherwise, by any act, omission,
negligence or other conduct or failure on the part of the Lender or
any other person in connection therewith;
(c) by any laches, acquiescence, delay, acts, omissions, mistakes on the
part of the Lender or any other person;
(d) by reason of any agreement, deed, mortgage, charge, debenture,
guarantee, indemnity or security held or taken at any time by the
Lender or by reason of the same being void, voidable or
unenforceable;
(e) by any moratorium or other period staying or suspending by statute
or order of any court or other authority all or any of the Lender's
rights, remedies or recourse against the Borrower or the Guarantor;
(f) by reason of any other dealing, matter or thing which, but for the
provisions of this Clause, could or might operate to affect or
discharge all or any part of the obligations and liabilities of the
Guarantor hereunder; or
(g) by the Lender asserting or failing to assert any right or remedy
against the Borrower or doing or omitting to do any act in pursuance
of any authority or permission contained in this Guarantee.
14. The Guarantor declares it has not taken and undertakes not to take directly
or indirectly from the Borrower in respect of its liability and obligation
hereunder any security of any nature whatsoever whereby the Guarantor or
any person claiming under it might in the Borrower's bankruptcy or
winding-up or liquidation increase the proofs in such bankruptcy or
liquidation or diminish the property available for distribution to the
Lender's detriment.
15. For the consideration aforesaid and as a separate and independent
stipulation:
(a) the Guarantor agrees that all sums of money which may not be
recoverable from the Guarantor on the footing of a guarantee whether
by reason of any legal limitation disability or incapacity including
without limitation the bankruptcy or winding-up or liquidation or
any other analogous events in relation to the Borrower under any
other applicable laws or any other fact or circumstance whether
known to the Lender or not shall nevertheless be recoverable from
the Guarantor on demand as though the Guarantor was the sole and
principal debtor;
(b) the Guarantor irrevocably and unconditionally undertakes to
indemnify the Lender on a full indemnity basis against all
reasonable legal costs between solicitors and clients and other
costs and disbursements incurred for or in connection with demanding
and enforcing payment of all monies guaranteed hereunder or
otherwise howsoever in enforcing this Guarantee and/or the covenants
agreements undertakings stipulations terms and conditions of this
Guarantee.
(c) the Guarantor agrees to furnish and provide the Lender with and
permits the Lender to obtain all such statements information
explanation and data as the Lender may reasonably require from time
to time regarding the operations and financial affairs of the
Guarantor.
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The Guarantor hereby agrees and undertakes to furnish to the Lender
(i) every fiscal quarter immediately after their issue, but in any
case not later than 90 days after the end of each fiscal quarter,
unaudited consolidated financial statements of the Guarantor for
such quarter, including a balance sheet, income statement and cash
flow statement and (ii) every year immediately after their issue,
but in any case not later than 120 days after the close of its
financial year, (A) the audited annual consolidated financial
statements of the Guarantor, including a balance sheet, income
statement and cash flow statement, audited by a firm of auditors
approved by the Lender together with auditors' and directors'
reports and (B) a copy of the annual return which the Guarantor is
required by law to file with the Registrar of Companies.
16. A statement or certificate signed by the Manager Accountant or other
officer of the Lender as to the monies and liabilities for the time being
due to or incurred by the Lender (and setting out the computation and basis
thereof) shall subject only to computational and/or clerical mistakes be
final and conclusive and be binding on the Guarantor.
17. This Guarantee shall continue to bind the Guarantor notwithstanding :
(a) any change by amalgamation reconstruction or otherwise which may be
made in the constitution of the company by which the business of the
Lender may for the time being be carried on and shall be available
to the company carrying on the business of the Lender for the time
being; or
(b) any winding-up (whether voluntary or compulsory) amalgamation or
reconstruction of or affecting the Borrower or any defect
informality or insufficiency of the Borrower's borrowing powers; or
(c) any winding-up (whether voluntary or compulsory) amalgamation or
reconstruction of or affecting the Guarantor.
18. The Guarantor shall, immediately upon any occurrence of the following:
(i) the giving of notice by the Guarantor to convene its general meeting
for passing any resolution to wind up the Guarantor; or
(ii) the filing of any application for placing the Guarantor under
judicial management; or
(iii) the filing of any petition for winding up the Guarantor.
notify the Lender of the same.
Where any such notification as aforesaid is given verbally by the Guarantor
to the Lender, the Guarantor shall confirm it in writing within twenty-four
(24) hours thereof.
19. The Guarantor shall not be discharged or released from this Guarantee by
any alteration in the obligations covenants undertakings stipulations terms
and conditions governing the Facilities ("the Terms"). The Lender may from
time to time vary, or add to the Terms and this Guarantee shall extend and
apply to the Terms varied or added to (notwithstanding such variations or
additions may impose further liabilities or more onerous covenants
undertakings or burdens on the Borrower) notwithstanding the Guarantor
shall not have received notice or been made aware of or consented to such
variations of or additions to the Terms Provided that the Lender shall
forthwith upon effecting such variation or addition (as the case may be)
give notice thereof to the Guarantor..
20. Any demand for payment of monies or any other demand or notice under this
Guarantee may be made by any officer of the rank of Assistant Treasurer and
above or any Secretary Manager Accountant Legal Officer or by any person or
firm acting as solicitors for the Lender by a letter addressed to the
Guarantor and sent by registered post or delivered to the address
abovestated and a notice or demand so served shall be deemed to be served
and received on the day it was so left or the 3rd day from the date it is
posted (where the Guarantor's address is in Singapore) or 7 days after
posting (where the Guarantor's address is outside Singapore), as the case
may be.
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21. The Guarantor may not determine or revoke this Guarantee unless the Lender
receives notice of its intention to revoke this Guarantee and agrees in
writing, and the Guarantor makes full provision for any other outstanding
liabilities or obligations to the Lender of the Borrower's account
guaranteed hereunder and not unless the Guaranteed Money is paid to the
Lender in full.
22. In addition to any lien right of set-off or other right which the Lender
may have the Lender shall be entitled at any time upon the Guarantor's
failure to pay the Guaranteed Money or any part thereof pursuant to a
declaration of an Event of Default pursuant to Clause 21.17 of the Facility
Agreement and without prior notice to the Borrower or the Guarantor to
combine or consolidate all or any of the accounts and liabilities of the
Borrower or the Guarantor with or to the Lender anywhere whether in or
outside Singapore or set-off or transfer any sums standing to the credit of
one or more of such accounts in or towards satisfaction of any of the
liabilities of the Borrower or the Guarantor to the Lender on any other
accounts whether in or outside Singapore or in any other respect whether
such liabilities be actual or contingent primary or collateral several or
joint notwithstanding that the credit balances on such accounts and the
liabilities on any other accounts may not be expressed in the same currency
and the Lender is hereby authorised to effect any necessary conversions at
the Lender's prevailing rate of exchange Provided that the Lender shall
forthwith upon effecting such application or conversion (as the case may
be) give notice thereof to the Guarantor.
23. In addition and without prejudice to any right or remedies of the Lender
under this Guarantee or by law conferred upon the Lender, the Lender may
from time to time and at any time upon the Guarantor's failure to pay the
Guaranteed Money or any part thereof pursuant to a declaration of an Event
of Default pursuant to Clause 21.17 of the Facility Agreement, debit to any
account of the Guarantor with the Lender, whether the account be current or
otherwise, all or any part of the Guaranteed Money and the sums so debited
shall be deemed to be monies advanced by the Lender to the Guarantor on the
Guarantor's account and payable on demand Provided that the Lender shall
forthwith upon making such debit give notice thereof to the Guarantor.
24. In addition and without prejudice to any other rights of the Lender under
the loan and security documents relating to the Facilities, if this
Guarantee or any other security for the Facilities is terminated, or for
any other reason which the Lender deems justifiable, the Lender may
forthwith open a new or separate interest-bearing account ("the new
account") for the Borrower in the Lender's books with a view to preserving
the rights of the Lender to prove the whole of the moneys owing by the
Borrower and if the Lender does not in fact open such new account it shall
nevertheless be deemed to have done so at the time of such termination and
as from and after the time that the new account was opened or so deemed to
have been opened, all payments made by or on behalf of the Borrower shall
(notwithstanding any legal or equitable rule of presumption to the
contrary) be credited or deemed to have been credited to the new account
and shall not go to reduce the amount owing by the Borrower to the Lender
at the time the new account was opened or deemed to have been opened,
unless the Lender expressly directs otherwise after all sums (actual or
contingent) owing to the Lender under the new account have been paid and
satisfied to the Lender in full or at any other time. For the avoidance of
doubt, if a payment which would (but for this Clause) have been applied in
the reduction of the Guaranteed Money is instead credited to a new account
of the Borrower under this Clause, then for the purpose of calculating
interest on the Guaranteed Money, the Guaranteed Money shall be deemed to
have been reduced by the amount of that payment
25. In addition to the rights conferred by any applicable laws, the Guarantor
consents to the Lender disclosing any information relating to this
Guarantee where such disclosure may be required under any applicable law or
regulation or by any governmental authority or body with whose requests the
Lender is accustomed to or required to comply.
26. (a) Without prejudice to the other provisions of this Guarantee any
amount received or recovered by the Lender in a currency other than
the contractual currency whether as a result of or of the
enforcement of a judgment or order of court or tribunal of any
jurisdiction in the dissolution of the Borrower and/or the Guarantor
or otherwise, shall only constitute a discharge to the extent of the
amount in the contractual currency which the Lender is able in
accordance with its usual practice to purchase with the amount so
received or recovered in such other currency on the date of that
receipt or recovery (or if it
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is not practicable to make that purchase on that date on the first
date on which it is practicable to do so).
(b) If that amount in the contractual currency is less than the amount
in the contractual currency due to the Lender by the Borrower, the
Guarantor shall indemnify the Lender against any loss sustained by
the Lender as a result. In any event, the Guarantor shall indemnify
the Lender against the cost of making any such purchase.
(c) These indemnities constitute a separate and independent obligation
from the other obligations in this Guarantee and shall give rise to
a separate and independent cause of action.
27. (a) This Guarantee shall be governed by and construed in all respects in
accordance with the laws of Singapore and shall be subject to the
non-exclusive jurisdiction of the courts of Singapore. The Guarantor
hereby agrees that where any actions or proceedings are initiated
and taken in Singapore the Guarantor shall submit to the
jurisdiction of the courts of Singapore. The service of any writ of
summons or any legal process in respect of any action or proceeding
hereunder may be effected on the Guarantor by forwarding a copy of
the writ of summons and statement of claim or other legal process by
registered post to the address of the Guarantor hereinbefore stated.
(b) To the extent that the Guarantor may in any jurisdiction claim for
itself or its assets immunity from suit, execution, attachment
(whether in aid of execution, before judgment or otherwise) or other
legal process and to the extent in any such jurisdiction there may
be attributed to itself or its assets such immunity whether on
grounds of sovereignty or otherwise (whether or not claimed), the
Guarantor irrevocably agrees not to claim and irrevocably waives
such immunity to the full extent permitted by the laws of such
jurisdiction. The Guarantor irrevocably agrees and undertakes that
it and its assets are, and shall be subject to any proceedings
attachment or execution in respect of its obligations under this
Guarantee.
(c) The Guarantor irrevocably consents in respect of any proceedings
anywhere to the giving of any relief or the issue of any process in
connection with those proceedings including, without limitation, the
making, enforcement or execution against any assets whatsoever
(irrespective of the use or intended use) of any order or judgment
which may be made or given in those proceedings.
28. The Guarantor may not assign its rights nor transfer its obligations or any
part thereof under this Guarantee without the prior written consent of the
Lender (such consent not to be unreasonably withheld). The Lender shall at
its own cost be entitled to assign or transfer any part or all of its
rights and/or obligations under this Guarantee to any person in favour of
whom it has assigned any part or all of its rights or transferred any part
or all of its obligations under the Facility Agreement.
29. In the event that the Guarantor is in default of the payment of insurance
premiums, legal fees, property taxes or any other out-of-pocket expenses,
the Lender may in its sole and absolute discretion pay such amounts and the
Guarantor agrees to reimburse the Lender for such amounts, together with
interest on such amounts from the date that the Lender paid such amounts
until the date on which such amounts are paid in full, payable on demand,
at an interest per annum equal to the Prime Rate plus 5% per annum. In the
event that the amount of such interest is less than $250, the Guarantor
will pay the Lender an administrative charge of $250 rather than the amount
of such interest Provided that the Lender shall notify the Guarantor of the
amount payable by the Guarantor under this Clause and shall in such
notification set out the computation and basis of such amount.
30. In this Guarantee where the context so admits :
(a) words importing the singular number include the plural number and
vice versa;
(b) words importing the masculine gender include the feminine or neuter
gender;
(c) the expression "the Guarantor" includes the personal representatives
and successors-in-title of the Guarantor;
7
(d) the expression "the Lender" and "the Borrower" include their
respective successors and assigns; and
(e) the word "person" includes any company or association or body of
persons, corporate or unincorporated.
31. Third Party Rights. The Contracts (Rights of Third Parties) Act (Chap 53B)
shall not apply to this Guarantee and no person not party to this Guarantee
shall have or acquire any right to enforce any term of it pursuant to that
Act. This Clause shall not affect any right or remedy of any third party
which exists or is available otherwise than by reason of that Act and shall
prevail over any other provision of this Guarantee which is inconsistent
with it.
IN WITNESS WHEREOF the Guarantor has hereunto affixed its Common Seal on the day
of January, 2003.
The Common Seal of )
Infiniti Solutions Pte Ltd )
was hereunto affixed )
in the presence of )
- Director
- Secretary
I, , an Advocate & Solicitor of practising in hereby
certify that on the day of 20 the Common Seal of was duly affixed to
the within written instrument at in my presence in accordance with the
regulations of the said company (which regulations have been produced and shown
to me).
Witness my hand.
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