DATED AUGUST , 2000
INTERNATIONAL SEMICONDUCTOR PRODUCTS PTE LTD
as Borrower
- and -
KEPPEL TATLEE BANK LIMITED
as Bank
------------------------------------------
$11,950,000
FACILITY AGREEMENT
for
(1) a $2,500,000 "A" Term Loan Facility
(2) a $3,800,000 "B" Term Loan Facility
(3) a $2,800,000 "C" Term Loan Facility
(4) a $2,850,000 Overdraft Facility
--------------------------------------------
XXXXX & XXXXXXXX
00, Xxxxxxxx Xxxx, #00-00,
Xxxx Xxxxx,
Xxxxxxxxx 000000.
1.
THIS DEED is made on , 2000 BETWEEN:-
(1) THE SEVERAL PERSONS listed under the heading "The Shareholders" at the
end of this Deed (the "Shareholders");
(2) INTERNATIONAL SEMICONDUCTOR PRODUCTS PTE LTD (the "Borrower"); and
(3) KEPPEL TATLEE BANK LIMITED (the "Bank").
W H E R E A S:-
(A) By a Facility Agreement (the "Facility Agreement") dated
2000 made between (1) the Borrower, as borrower, and (2) Keppel TatLee Bank
Limited, as bank, the Bank has agreed to grant to the Borrower (a) a $2,500,000
term loan facility under which the Bank will make to the Borrower "A" Advances
(as defined in the Facility Agreement), (b) a $3,800,000 term loan facility
under which the Bank will make to the Borrower "B" Advances (as defined in the
Facility Agreement), (c) a $2,800,000 term loan facility under which the Bank
will make to the Borrower "C" Advances (as defined in the Facility Agreement)
and (d) a $2,850,000 overdraft facility under which the Bank will allow the
Borrower to make Drawings (as defined in the Facility Agreement) on the
Overdraft Account (as defined in the Facility Agreement) (the facilities
referred to in paragraphs (a), (b), (c) and (d) above being referred to as the
"Facilities"), upon the terms and subject to the conditions of the Facility
Agreement.
(B) The Borrower may not make its first request for an Advance nor make a
Drawing on the Overdraft Account unless and until, inter alia, this Deed has
been duly entered into by the Shareholders, the Borrower and the Bank.
(C) Each of the Shareholders which is a corporation has (after giving due
consideration to the terms and conditions of the Facility Agreement and
satisfying itself that there are reasonable grounds for believing that the entry
into by it of this Deed will benefit it) decided in good faith and for the
purposes of its business to enter into this Deed.
THIS DEED WITNESSES AS FOLLOWS:-
1. INTERPRETATION
(A) In this Deed, except to the extent that the context requires
otherwise:-
"Bank" includes its successors and assigns;
"Facilities" has the meaning ascribed to it in Clause 1(A) of the
Facility Agreement;
"Financing Documents" means the Facility Agreement and the Security
Documents and any and every other document from time to time executed
in relation to the Secured Indebtedness;
"$" means the lawful currency of Singapore;
"Security Documents" has the meaning ascribed to it in Clause 1(A) of
the Facility Agreement;
"Senior Indebtedness" means (1) all sums (whether principal, interest,
fee, commission or otherwise) which are or at any time may be or become
due from or owing by the Borrower to the Bank, whether actually or
contingently, under or in connection with, or which the Borrower has
covenanted to pay or discharge under or pursuant to, any of the
Financing Documents and (2) all other liabilities and moneys (whether
principal, interest, fee, commission or otherwise) which now are or at
any time hereafter may be or become due from or owing by, or be
incurred by the Borrower to the Bank, in whatever currency, the same
shall be
2
denominated or owing whether alone or jointly with any other person and
on any account whatsoever, whether present, future, actual or
contingent and whether current or otherwise, and whether as principal
debtor, guarantor, surety or otherwise howsoever, including (without
limitation) interest and all liabilities in connection with foreign
exchange transactions, paying, accepting, endorsing or discounting any
cheques, notes or bills, or under bonds, guarantees, indemnities,
documentary or other credits or any instruments whatsoever from time to
time entered into by the Bank for or at the request of the Borrower;
"Subordinated Indebtedness" means in relation to each of the
Shareholders, the aggregate amount from time to time of all moneys,
debts and liabilities (whether principal, interest, fee or otherwise)
whatsoever which now are or have been or at any time hereafter may be
or become due from or owing by the Borrower to the Shareholders, or any
of them, or for which the Borrower may be under liability to the
Shareholders, or any of them, whether actually or contingently; and
"Termination Date" means the date on which the Bank becomes satisfied
that the Senior Indebtedness has been discharged in full and on which
the Borrower and the Shareholders and other related persons cease to be
under any liability to the Bank under or in connection with the
Financing Documents.
(B) Financing Documents: Except as otherwise provided in this Deed, all
terms and references which are defined or construed in the Financing Documents
but are not defined or construed in this Deed shall have the same meaning and
construction in this Deed. Any reference in this Deed to a Financing Document
shall include that Financing Document as amended, modified or supplemented from
time to time and any document which amends, modifies or supplements that
Financing Document.
(C) Headings and Clauses: The headings in this Deed are inserted for
convenience only and shall be ignored in construing this Deed. Unless the
context otherwise requires, words (including words defined herein) denoting the
singular number only shall include the plural and vice versa and words denoting
persons shall include corporations and partnerships. Save where otherwise
indicated, references to "Clauses" and the "Schedule" are to be construed as
references to the clauses of, and the schedule to, this Deed. Any reference to a
sub-Clause or a paragraph is to a sub-Clause or paragraph of the Clause in which
such reference appears.
2. SUBORDINATION
(A) The Shareholders and the Borrower hereby agree with and undertakes to
the Bank that, notwithstanding anything to the contrary contained in any
agreement or other document constituting or evidencing the Subordinated
Indebtedness of the Shareholders, before the Termination Date such Subordinated
Indebtedness and the respective rights and claims of the Shareholders in
relation to its Subordinated Indebtedness are subordinated to the Senior
Indebtedness and the Bank's rights and claims in relation to the Senior
Indebtedness and accordingly, subject as provided in this Deed, payments to the
Shareholders of any amount of its Subordinated Indebtedness are conditional upon
the whole of the Senior Indebtedness having first been fully satisfied and
discharged and no payment of any amount of such Subordinated Indebtedness which,
but for this Deed, would otherwise fall due for payment will fall so due, and
instead such payment will fall due only if and when the Senior Indebtedness has
been fully satisfied and discharged.
(B) Subject as provided below:-
(1) before the Termination Date, the Borrower shall not without
the prior consent in writing of the Bank make or purport to
make any payment, whether in cash or in kind, to any of the
Shareholders on account of the Subordinated Indebtedness;
(2) before the Termination Date, none of the Shareholders shall
without the prior consent in writing of the Bank ask, demand,
xxx for, take or receive, directly or indirectly, whether by
exercise of set-off, counterclaim or in any other manner, or
recover or
3.
enforce payment of any of the Subordinated Indebtedness, and
in addition shall not have any charge, mortgage, lien or any
security for the Subordinated Indebtedness on any moneys,
property (movable or immovable) or assets of or belonging to
the Borrower whether held by the Borrower or others on its
behalf;
(3) the Borrower shall not make any loans or advances, whether
directly or indirectly, to any of the Shareholders or provide
any guarantee, indemnity or security for or in connection with
any indebtedness or liabilities of any of the Shareholders;
and
(4) none of the Shareholders shall without the prior consent in
writing of the Bank assign, transfer, sell, charge or purport
to assign, transfer, sell, charge or otherwise dispose or
purport to dispose of the whole or any part of or any interest
in any rights which it may from time to time and for the time
being have against the Borrower in respect of the Subordinated
Indebtedness or agree to the assumption by any other person of
any liability in respect of its Subordinated Indebtedness.
(C) (1) The Borrower undertakes, upon the request of the Bank, to cause or
permit the Subordinated Indebtedness to be paid to the Bank and each of the
Shareholders acknowledges and confirms that the Borrower can act in such manner,
and if, notwithstanding the other provisions of this Deed, any of the
Shareholders, or any person on its behalf, receives, directly or indirectly,
whether in the liquidation of the Borrower or otherwise, any amount (whether in
cash or in debt) on account of the Subordinated Indebtedness prior to the
Termination Date, it will forthwith pay or deliver the same, or cause the same
to be paid or delivered, to the Bank for application against or retention on
account of the Senior Indebtedness in accordance with the provisions of
sub-Clause (D) below and, until so paid or delivered, the same shall be held in
trust by it to apply the same in accordance with the provisions of sub-Clause
(D) below.
(2) In the event of the liquidation of the Borrower, each of the
Shareholders undertakes to the Bank to take all reasonable steps to prove any
claims which it may have for any of the Subordinated Indebtedness and to pay, or
cause to be paid, any amount received or recovered by it to the Bank in
accordance with the provisions of paragraph (1) above and, until so paid, such
amount shall be held in trust by it to apply the same in accordance with the
provisions of sub-Clause (D) below.
(D) Any amount received by the Bank from any of the Shareholders, or any
person on its behalf, under sub-Clause (C) above shall be applied as follows:-
(1) first, in or towards payment or satisfaction of the costs,
charges, expenses and liabilities incurred by the Bank in or
about the execution and/or enforcement of this Deed against
such Shareholder;
(2) secondly, in or towards payment or satisfaction of the Senior
Indebtedness; and
(3) thirdly, in payment of the surplus to such Shareholder or
other person entitled thereto.
3. REPRESENTATIONS AND WARRANTIES
(A) The Shareholders and the Borrower each represents and warrants to and
for the benefit of the Bank that:-
(1) it has the power to enter into this Deed and to undertake and
perform its obligations under this Deed;
(2) all action, conditions and things required to be taken,
fulfilled and done (including the obtaining of any necessary
consents) except for stamp duty on this Deed and any filings
in relation to this Deed, which will be paid or done within
the time limit allowed under the relevant legislation in order
(a) to enable it lawfully to enter into and perform and comply
with its obligations under this Deed, (b) to ensure that those
obligations are legally binding and enforceable in accordance
with their respective terms and (c)
4.
to make this Deed admissible in evidence in the courts of
Singapore have been taken, fulfilled and done;
(3) its entry into exercise of its rights and/or performance of or
compliance with its obligations under this Deed do not and
will not violate, or exceed any borrowing or other power or
restriction granted or imposed by (a) any law to which it is
subject, (b) (in the case of a Shareholder which is a
corporation) any provision of its constitutive documents, or
(c) any agreement to which it is a party or which is binding
on it or its assets;
(4) its obligations under this Deed are valid, binding and
enforceable in accordance with their respective terms;
(5) no litigation, arbitration or administrative proceeding is
current or pending or, so far as it is aware, threatened (a)
to restrain the entry into, exercise of its rights under
and/or performance or enforcement of or compliance with its
obligations under this Deed or (b) which has or could have a
material adverse effect on it; and
(6) no meeting has been convened for the winding-up of any of the
Shareholders which is a corporation or for the appointment of
a receiver, trustee, judicial manager or similar officer of
it, its assets or any of them, no such step is intended by it
and, so far as it is aware, no petition, application or the
like is outstanding for its winding-up or for the appointment
of a receiver, trustee, judicial manager or similar officer of
it, its assets or any of them.
(B) The Shareholders and the Borrower each represents and warrants to and
for the benefit of the Bank that each of the representations and warranties
contained in sub-Clause (A) above will be correct and complied with in all
material respects at all times prior to the Termination Date.
4. CONTINUING OBLIGATIONS
The obligations of each of the Shareholders and the Borrower under this
Deed shall be continuing obligations and shall be and remain fully effective
until the Termination Date and shall apply in respect of the Senior Indebtedness
notwithstanding any intermediate payment in whole or in part of the Senior
Indebtedness. None of the Shareholders shall, by virtue of any payment or
distribution or other benefit in respect of the Subordinated Indebtedness and
received by the Bank, be entitled to any right of subrogation.
5. POSITION OF THE BANK
(A) The rights and benefits of the Bank under this Deed shall not be
affected by any action or inaction on its part with respect to the Senior
Indebtedness including, without limitation, (1) any time, indulgence,
concession, waiver, forbearance or consent at any time given to the Borrower,
any of the Shareholders or any other person, (2) any amendment or supplement to
any provision of this Deed, any of the Financing Documents or any other
agreement, security, guarantee, indemnity, right, remedy or lien, (3) the making
or absence of any demand on the Borrower, any of the Shareholders or any other
person for payment, (4) the enforcement or absence of enforcement of this Deed,
any of the Financing Documents or any other agreement, security, guarantee,
indemnity, right, remedy or lien, (5) the taking, existence or release of any of
the other Security Documents or any other agreement, security, guarantee,
indemnity, right, remedy or lien, (6) the insolvency, bankruptcy, dissolution,
winding-up, amalgamation, reconstruction or reorganisation of the Borrower or
any other person (or the commencement of any of the foregoing), (7) the
illegality, invalidity or unenforceability of or any defect in any provision of
this Deed, any of the Financing Documents or any other agreement, security,
guarantee, indemnity, right, remedy or lien, or any of the obligations of any of
the parties thereunder or (8) any other matter or thing whatsoever.
(B) The Bank shall not incur any liability to any of the Shareholders by
reason of any action or inaction on its part in relation to the Subordinated
Indebtedness in exercise of any of the powers and discretions contained in this
Deed.
5.
(C) This Deed is in addition to, and shall not be merged with or in any way
affect or prejudice, any other security or right which the Bank may now or at
any time hereafter hold or have in respect of the obligations of the Borrower
under or in connection with the Facility Agreement.
6. COSTS AND EXPENSES
The Shareholders and the Borrower shall each pay on demand all costs
and expenses (including legal fees on a full indemnity basis and all goods and
services, value added and other duties or tax payable on such costs and
expenses) incurred by the Bank in protecting or enforcing any rights against it
under this Deed.
7. ASSIGNMENTS, REMEDIES AND WAIVERS
(A) None of the Shareholders nor the Borrower may assign or transfer any of
its respective rights, benefits or obligations under this Deed.
(B) The Bank may assign all or part of its rights under this Deed after
giving to the Borrower not less than thirty (30) days' prior notice but without
the consent of any party. Any such assignee shall be entitled to the full
benefit of this Deed to the same extent as if it were an original party in
respect of the rights assigned to it.
(C) The Bank may disclose to an actual or potential assignee, transferee or
any other person such information about any of the Shareholders or the Borrower
as it may think fit.
(D) No failure on the part of the Bank to exercise, and no delay on its
part in exercising, any right or remedy under this Deed will operate as a waiver
thereof, nor will any single or partial exercise of any right or remedy under
this Deed preclude any other or further exercise thereof or the exercise of any
other right or remedy. The rights and remedies in this Deed provided are
cumulative and not exclusive of any rights or remedies provided by law. Any
waiver or consent given by the Bank under this Deed shall be in writing and may
be given subject to such conditions as the Bank may impose. Any waiver or
consent shall be effective only in the instance and for the purpose for which it
is given.
8. PARTIAL INVALIDITY
The illegality, invalidity or unenforceability of any provision of this
Deed under the law of any jurisdiction shall not affect its legality, validity
or enforceability under the law of any other jurisdiction nor the legality,
validity or enforceability of any other provision.
9. COMMUNICATIONS
(A) Each demand, notice or other communication under this Deed shall be
made by fax or otherwise in writing. Each communication or document to be
delivered to any party under this Deed shall be sent to that party at the fax
number or address, and marked for the attention of the person (if any), from
time to time designated by that party for the purpose of this Deed. The initial
fax number, address and person (if any) so designated by each party are as
follows:-
The Shareholders : SEMX Corporation
0-0 Xxxxxxxx Xxxxx
Xxxxxx
Xxx Xxxx 00000-0000 X.X.X.
Facsimile No : 914-2735860
Attention : Xx Xxxxxxx X. Xxxxx
6.
Semiconductor Alliance Pte Ltd
000 Xxxxxx Xxxx #00-00/00
Xxxxxxx Xxxxxxxx
Xxxxxxxxx 000000
Facsimile No :
Attention : Xx Xxx Xxxx Xxx/
Xx Xxxxxx Xxx
The Borrower : International Semiconductor Products
Pte Ltd
00 Xxx Xxxx Xxxxxxxx
Xxxxxxxxx 000000
Facsimile No : 863 1700
Attention : Xx Xxxxxx Xxx/Xx Xxx Xxx
The Bank : Keppel TatLee Bank Limited
00 Xxx Xxxxxx Xxxx
Xxxxxx Xxxxxx
Xxxxxxxxx 000000
Facsimile No : 222 5572
Attention : Xx Xxxxxxxxxx Xxxxxx/
Xx Xxx Xx Xxxx
(B) Any demand, notice or other communication from the Borrower and any of
the Shareholders shall be irrevocable, and shall not be effective until received
by the Bank. Any other demand, notice or other communication made or given from
one party to another party in accordance with sub-Clause (A) above shall be
effective (notwithstanding that it is returned undelivered) and shall be deemed
to be received by it, if sent by fax, on the date of despatch or, in any other
case, when left at the address required by that sub-Clause or within two (2)
days after being sent by prepaid registered post addressed to that address.
10. GOVERNING LAW
This Deed shall be governed by, and construed in accordance with, the
laws of Singapore.
7.
IN WITNESS WHEREOF the parties hereto have entered into this Deed.
The Shareholders
Signed, Sealed and Delivered by )
as the attorney of and for )
and on behalf of )
SEMX CORPORATION )
in the presence of :- )
The Common Seal of )
SEMICONDUCTOR ALLIANCE PTE LTD )
was hereunto affixed )
in the presence of :- )
Director
-----------------------------
Director/Secretary
-----------------------------
The Borrower
The Common Seal of )
INTERNATIONAL SEMICONDUCTOR )
PRODUCTS PTE LTD )
was hereunto affixed )
in the presence of :- )
Director
-----------------------------
Director/Secretary
-----------------------------
8.
The Bank
Signed, Sealed and Delivered )
by )
as the attorney of and for )
and on behalf of )
KEPPEL TATLEE BANK LIMITED )
in the presence of :- )
