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EXHIBIT 10.30
DATED THIS 18th DAY OF JUNE 1997
BETWEEN
XXXXX LOGISTICS (S) PTE LTD
AND
STANDARD CHARTERED BANK, SINGAPORE BRANCH
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LOAN AGREEMENT
RELATING TO
S$19,500,000 TERM LOAN FACILITY
===================================
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RAJAH & XXXX
SINGAPORE
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C O N T E N T S
CLAUSE HEADING PAGE
1. INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. THE FACILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . 8
4. DRAWINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5. INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6. REPAYMENT, PREPAYMENT AND CANCELLATION . . . . . . . . . . . . . . . 13
7. MARKET DISRUPTION . . . . . . . . . . . . . . . . . . . . . . . . . . 14
8. CHANGE OF LAW OR CIRCUMSTANCES . . . . . . . . . . . . . . . . . . . 15
9. TAXES AND OTHER DEDUCTIONS . . . . . . . . . . . . . . . . . . . . . 16
10. FEES AND EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . 17
11. ADVERSE MARKET CHANGE . . . . . . . . . . . . . . . . . . . . . . . . 18
12. PAYMENTS AND EVIDENCE OF DEBT . . . . . . . . . . . . . . . . . . . . 18
13. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . 19
14. UNDERTAKINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
15. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . 29
16. DEFAULT INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . 32
17. INDEMNITIES AND SET-OFF . . . . . . . . . . . . . . . . . . . . . . . 32
18. AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
19. WAIVER AND SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . 33
20. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
21. ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
22. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
23. GOVERNING LAW AND JURISDICTION . . . . . . . . . . . . . . . . . . . 36
SCHEDULE 1 FORM OF NOTICE OF DRAWING . . . . . . . . . . . . . . . . . . . . . . 38
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THIS AGREEMENT is made on the 18th day of June 1997
BETWEEN :-
(1) XXXXX LOGISTICS (S) PTE LTD, a company incorporated under the
laws of the Republic of Singapore with its registered office at
0 Xxxxxx Xxxxx Xxxx Xxxxxxxxx 000000 as borrower ("THE
BORROWER"); and
(2) STANDARD CHARTERED BANK, a corporation established in England by
Royal Charter and having a place of business in Singapore at Xx.
0, Xxxxxxx Xxxx, Xxxxxxxxx 000000, as lender ("THE LENDER").
IT IS HEREBY AGREED as follows :-
1. INTERPRETATION
1.1 Definitions. In this Agreement, unless the context requires
otherwise :-
"ADVANCE" means the principal amount advanced to the Borrower on the occasion
of each Drawing;
"ASSIGNMENT OF PROPERTY" means the Deed of Assignment in the agreed form
executed or to be executed by the Borrower in respect of all the estate rights
title and interests of the Borrower in under or arising out of the Building
Agreement and in the Property and includes any amendments and variations
thereto or any further deed of assignment or any deed executed in substitution
for or in addition to the Assignment of Property;
"AVAILABILITY PERIOD" means the period commencing on the date of this Agreement
and ending on the earlier of (i) the date one (1) year after the date of this
Agreement; and (ii) the date on which the Facility is fully drawn, cancelled or
terminated under the provisions of this Agreement;
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"BANKING DAY" means a day (excluding Saturday and Sunday) on which banks are
open for business in Singapore;
"BUILDING AGREEMENT" means the Building Agreement dated 23 August 1996 and made
between the Lessor of the one part and the Borrower of the other part in which
the Lessor has agreed to grant to the Borrower a licence in relation to the
Property for a term of two (2) years from 1 January 1995 and thereafter, a
lease of the Property for a term of thirty (30) years from 1 January 1995 on
the terms and conditions contained therein and includes any amendments and
variations thereto or any further or supplemental agreement or deed executed in
substitution for or in addition to the Building Agreement;
"CHARGE" means :-
(a) any mortgage, charge, pledge, lien, encumbrance, hypothecation or
other security interest or security arrangement of any kind;
(b) any arrangement whereby any rights of one party are subordinated
to any rights of any third party;
(c) any contractual right of set-off; and
(d) any title retention, sale and leaseback and sale and repurchase
other than those created in the ordinary course of business;
"COST OF FUNDS" means in relation to any relevant sum and any relevant period
the costs incurred or to be incurred by the Lender in making available sums
under the Facility to the Borrower, expressed either as the Swap Rate or SIBOR
together with statutory reserve costs (as determined by the Lender) at the
Borrower's option;
"DRAWING" means a drawing under the Facility pursuant to Clause 4;
"EVENT OF DEFAULT" means any event or circumstance specified as such in Clause
15; and "PROSPECTIVE EVENT OF DEFAULT" means any event or circumstance which
with the giving of notice and/or the passage of time would be an Event of
Default, and which event or circumstance is not remedied by the Borrower to the
Lender's satisfaction by the end of each Fiscal Quarter;
"FACILITY" means the term loan facility of up to S$19,500,000 to be made
available under this Agreement;
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"FISCAL QUARTER" means each three (3) month period in a financial year of the
Borrower, the first such period beginning at the commencement of the financial
year of the Borrower;
"XXXXX GROUP OF COMPANIES" means Xxxxx Companies Inc. and its subsidiaries;
"GUARANTEE" means the guarantee in the agreed form executed or to be executed
by the Guarantor to secure the obligations of the Borrower under this Agreement
and includes any amendments and variations thereto or any further deed of
guarantee or any deed executed in substitution for or in addition to the
Guarantee;
"GUARANTOR" means Xxxxx Companies, Inc, a company incorporated under the laws
of the State of Delaware, United States of America, with its registered office
at 000, Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, XX 00000;
"INSURANCES" means the insurances to be effected in accordance with Clause
14.1.8;
"INTEREST PAYMENT DATE" means the last day of an Interest Period;
"INTEREST PERIOD" means an interest period ascertained in accordance with
Clause 5;
"LEASE" means the lease for a term of thirty (30) years from the 1st January
1995 granted or to be granted by the Lessor to the Borrower pursuant to the
terms and conditions of the Building Agreement and includes any amendments and
variations and any supplemental lease thereto;
"LESSOR" means Jurong Town Corporation;
"LOAN" means the aggregate principal amount drawn and for the time being
outstanding under the Facility;
"MATURITY DATE" means the date five (5) years from the date of this Agreement;
"MARGIN" in relation to each Interest Period means :-
(a) where the total of the Loan(s) is an aggregate of S$15,000,000
or more and the Guarantor's Cash Flow Leverage Ratio (as defined
in the Multicurrency Agreement) is equal to or greater than 2.0,
three quarters of one percent (0.75%);
(b) where the total of the Loan(s) is an aggregate of S$15,000,000
or more and the Guarantor's Cash Flow Leverage Ratio is less
than 2.0, six tenths of one percent (0.60%) ;
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(c) where the total of the Loan(s) is less than an aggregate of
S$15,000,000 and the Guarantor's Cash Flow Leverage Ratio is
equal to or greater than 2.0, six tenths of one percent (0.60%);
and
(d) where the total of the Loan(s) is less than an aggregate of
S$15,000,000 and the Guarantor's Cash Flow Leverage Ratio is
less than 2.0, one half of one percent (0.50%);
"MORTGAGE" means the mortgage in the agreed form executed or to be executed by
the Borrower in respect of the Property pursuant to the Assignment of Property
and includes any amendments and variations thereto or any further mortgage or
any mortgage executed in substitution for or in addition to the Mortgage;
"MULTICURRENCY AGREEMENT" means the Multicurrency Credit Agreement dated 15
December 1995 made between the Guarantor, Bank of America National Trust &
Savings Association as agent and the other financial institutions party thereto
and includes any amendments and variations thereto;
"NOTICE OF DRAWING" means a notice in or in substantially the form set out in
Schedule 2;
"PROPERTY" means the property known as Xxxxxxx Xxx X00000 and comprised in Lot
403 and part of Lots 401, 402, 404, 405, 406, 393, 394, 395, 396 and 7895 of
Mukim 27 more particularly described in the First Schedule of and delineated
on the plan annexed to the Building Agreement together with the building and
all other appurtenances erected or to be erected thereon (excluding the
automated storage and retrieval system to be acquired by the Borrower on
hire-purchase) known as 0 Xxxxxx Xxxxx Xxxx, Xxxxxxxxx 000000;
"REFERENCE BANKS" means the principal offices of Bank of America and Citibank
NA or any substitute reference bank(s) appointed by the Lender and agreed by
the Borrower;
"REPAYMENT DATE" means the date(s) on which the Loan is to be repaid in
accordance with Clause 6;
"SECURITY DOCUMENTS" means the Guarantee, the Mortgage, the Assignment of
Property and any other document executed from time to time by whatever person
as a further guarantee of or security for the Borrower's obligations hereunder;
"SECURITY PARTY" means the Guarantor, and where the context permits, any person
other than the Borrower which has provided or subsequently provides a guarantee
of or security for the Borrower's obligations under this Agreement;
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"SIBOR" means, in relation to any relevant sum and any relevant period, the
rate determined by the Lender to be :-
(a) the rate shown on the Telerate Monitor Screen as being the rate
per annum at which Singapore Dollar deposits are offered for a
period equal or comparable to such period at or about 11:00 a.m.
(Singapore time) on the second Banking Day before the first day
of such period; for this purpose "Telerate Monitor Screen" means
the display designated as page "7310" on the Telerate Monitor
system or such other page as may replace page "7310" on that
system for the purpose of displaying offered rates for Singapore
Dollar deposits; or
(b) if at or about such time on any relevant day no such rate
appears on the Telerate Monitor Screen, the rate determined by
the Lender to be the arithmetic mean (rounded up if necessary to
the nearest integral multiple of 1/16%) of the respective rates
notified to the Lender by each Reference Bank as being the rate
per annum at which Singapore Dollar deposits in an amount
comparable to such sum are offered to that Reference Bank for
such period by prime banks in the Singapore interbank market at
or about 11:00 a.m. (Singapore time) on the second Banking Day
before the first day of such period provided that if any
Reference Bank does not notify such a rate to the Lender for any
relevant period SIBOR for such period shall be determined on the
basis of the rates notified by the other Reference Banks;
"SINGAPORE DOLLARS" and the sign "S$" mean the lawful currency for the time
being of Singapore;
"SUBSIDIARY" in relation to any company mean any other company or other entity
directly or indirectly under the control of the first-mentioned company, for
this purpose "control" means ownership of more than fifty per cent (50%) of the
voting share capital or equivalent right of ownership of such company or
entity, or power to direct its policies and management whether by contract or
otherwise;
"SWAP RATE" means, in relation to an Advance or overdue sum, the rate per annum
(expressed as a percentage) determined by the Lender to be equal to Y (which
shall be calculated to the nearest four decimal places) calculated in
accordance with the following formula :-
Y = (R x 365) + (F x 36500) + (F x R x 365)
000 X X X 000
where :-
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F = the premium (being a positive number) or the
discount (being a negative number), as the case
may be, which would have been received or paid by
the Lender in offering to sell US Dollars forward
in exchange for Singapore Dollars on the last day
of the term of such Advance or, as the case may
be, the last day of such Interest Period relating
to such overdue sum in the Singapore inter-bank
market at or about 11:00 a.m. (Singapore time) on
the second (2nd) Banking Day before the first
(1st) day of the term of such Advance or, as the
case may be, the first (1st) day of such Interest
Period relating to such overdue sum;
S = the exchange rate at which the Lender sells US
Dollars spot in exchange for Singapore Dollars in
the Singapore foreign exchange market as quoted
by the Lender at or about 11:00 a.m. (Singapore
time) on the second (2nd) Banking Day before the
first (1st) day of the term of such Advance or,
as the case may be, the first (1st) day of such
Interest Period relating to such overdue sum;
R = the rate at which the Lender is offering US
Dollar deposits for the term of such Advance or,
as the case may be, such Interest Period relating
to such overdue sum in an amount comparable to
the US Dollar equivalent of such Advance or, as
the case may be, such overdue sum (such US Dollar
equivalent to be determined by that Reference
Bank at such rate or rates as that Reference Bank
determines to be most appropriate) to prime banks
in the Singapore inter-bank market at or about
11:00 a.m. (Singapore time) on the second (2nd)
Banking Day before the first (1st) day of the
term of such Advance or, as the case may be, the
first (1st) day of such Interest Period relating
to such overdue sum; and
N = the actual number of days in the term of such
Advance or, as the case may be, such Interest
Period relating to such overdue sum.
"UNITED STATES DOLLARS" and the sign "US$" mean the lawful currency for the
time being of the United States of America;
1.2 Construction. In this Agreement, unless the context requires
otherwise, any reference to :-
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an "AUTHORISATION" includes any approvals, consents, licences, permits,
franchises, permissions, registrations, resolutions, directions, declarations
and exemptions;
"INDEBTEDNESS" includes any obligation of any person for the payment or
repayment of money, whether present or future, actual or contingent, including
but not limited to, any such obligation :-
(a) under or in respect of any acceptance, xxxx, bond, debenture,
note or similar instrument;
(b) under or in respect of any guarantee, indemnity,
counter-security or other assurance against financial loss;
(c) in respect of the purchase, or capital lease of any asset or
service, other than in respect of the automated storage and
retrieval system to be acquired by the Borrower on
hire-purchase; or
(d) in respect of any indebtedness of any other person whether or
not secured by or benefiting from a Charge on any property or
asset of such person;
"LAW" and/or "REGULATION" includes any constitutional provisions, treaties,
conventions, statutes, acts, laws, decrees, ordinances, subsidiary and
subordinate legislation, orders, rules and regulations having the force of law
and rules of civil and common law and equity;
an "ORDER" includes any judgment, injunction, decree, determination or award of
any court, arbitration or administrative tribunal;
a "PERSON" includes any individual, company, body corporate or unincorporate or
other juridical person, partnership, firm, joint venture or trust or any
federation, state or subdivision thereof or any government or agency thereof;
and
"TAX" includes any tax, levy, duty, charge, impost, fee, deduction or
withholding of any nature now or hereafter imposed, levied, collected, withheld
or assessed by any taxing or other authority and includes any interest, penalty
or other charge payable or claimed in respect thereof and "TAXATION" shall be
construed accordingly.
1.3 Successors and Assigns. The expressions "BORROWER" and "LENDER"
shall, where the context permits, include their respective successors and
permitted assigns and any persons deriving title under them.
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1.4 Miscellaneous. In this Agreement, unless the context requires
otherwise, references to statutory provisions shall be construed as references
to those provisions as replaced, amended, modified or re-enacted from time to
time; words importing the singular include the plural and vice versa and words
importing a gender include every gender; references to this Agreement or any
Security Document shall be construed as references to such document as the same
may be amended, supplemented or novated from time to time; unless otherwise
stated, references to Clauses, Schedules and Appendices are to clauses of, and
schedules and appendices to this Agreement and references to this Agreement
include its Schedules and Appendices. Clause headings are inserted for
reference only and shall be ignored in construing this Agreement.
2. THE FACILITY
2.1 Amount. Subject to the provisions of this Agreement the Lender
will make available to the Borrower the Facility in aggregate of up to
S$19,500,000 in accordance with the terms of this Agreement.
2.2 Purpose. The proceeds of the Facility shall be used by the
Borrower to finance the development costs of the Property. The Lender shall
have no responsibility to see to the application of the proceeds of the
Facility by the Borrower.
3. CONDITIONS PRECEDENT
3.1 Conditions. The Lender shall not be obliged to make any Advance
to the Borrower unless the Lender shall have received not less than ten (10)
Banking Days from the proposed date of the first Drawing :-
Facility Agreement
3.1.1 this Agreement duly executed by all the parties;
Corporate Documents
3.1.2 in relation to the Borrower, certified true copies of :-
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(i) its Certificate of Incorporation and Memorandum and
Articles of Association;
(ii) a list of its current directors and officers with their
specimen signatures;
(iii) resolutions of its board of directors approving the
borrowing and the giving of security on the terms of this
Agreement and the Security Documents to which it is a
party and authorising the relevant person or persons to
execute this Agreement, the relevant Security Documents,
all Notices of Drawing and other documents required in
connection herewith, and the specimen signature(s) of
such person(s); and
(iv) the FY1996 audited financial statements of the Borrower.
3.1.3 in relation to the Guarantor certified true copies of :-
(i) its certificate of incorporation and memorandum and
articles of association;
(ii) its current business registration certificate and all
other necessary authorisations for the operation of its
business, if any;
(iii) a list of its current directors and officers; and
(iv) resolutions of its board of directors (and, where
relevant, its shareholders) approving the execution of
the relevant Security Documents to which it is a party
and authorising the relevant person or persons to execute
such Security Documents and any other notices and
documents required in connection therewith, and the
specimen signature(s) of such person(s);
Security and other Documents
3.1.4 the Guarantee duly executed by the Guarantor;
3.1.5 the Assignment of Property to the Lender duly executed by the
Borrower and all documents required pursuant thereto;
3.1.6 the Mortgage duly executed by the Borrower and registered with
the relevant authorities and all documents required pursuant
thereto;
Miscellaneous
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3.1.7 certified true copy of a satisfactory valuation report on the
Property by a valuer acceptable to the Lender and on a basis
approved by the Lender;
3.1.8 the originals of the policies of insurance referred to in Clause
14.1.8 in relation to the Property arranged with such insurer as
the Lender may agree;
3.1.9 evidence that all necessary filings, registrations and other
formalities have been or will be completed in order to ensure
that this Agreement and the Security Documents are valid and
enforceable (certified copies of official receipts to be
sufficient evidence of such filings or registration);
3.1.10 the Borrower's financial projections (incorporating projected
profits) for each of the five (5) years beginning from the date
of this Agreement; and
3.1.11 such other documents as the Lender may reasonably request and
which are agreed to by the Borrower in connection with the
Facility.
3.2 Lender's Approval. All the documents and evidence referred to
in Clause 3.1 shall be in form and substance satisfactory to the Lender, and
shall be received not later than ten (10) days before the first Drawing under
the Facility. Copies required to be certified shall be certified in a manner
satisfactory to the Lender by a director of the Borrower.
4. DRAWINGS
4.1 Drawings. Subject to the provisions of Clause 4.2 and the other
terms and conditions of this Agreement, the Borrower may from time to time on
any Banking Day during the Availability Period make Drawings under the Facility
for the purpose set out in Clause 2.2 provided that :-
4.1.1 the amount of each Drawing shall be at least S$1,000,000, and in
integral multiples of S$100,000; and
4.1.2 the aggregate principal amount of all Drawings under Clause
4.1.1 shall not exceed the aggregate principal amount of the
Facility available for drawing under the Facility.
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4.2 Other Conditions applicable to Drawings. The making of each
Drawing is also subject to the conditions that :-
4.2.1 the requirements of Clause 3 shall have been satisfied before
the first Notice of Drawing is given;
4.2.2 the Lender shall have received not later than 12:00 noon
(Singapore time) on the third (3rd) Banking Day before the date
on which the Drawing is to be made a duly completed and signed
original Notice of Drawing; and
4.2.3 no Event of Default or Prospective Event of Default shall have
occurred (or would be likely to occur as a result of the Drawing
being made) and all representations and warranties made by the
Borrower in or in connection with this Agreement shall be true
and correct as at the date such Drawing is to be made with
reference to the facts and circumstances then subsisting.
4.3 Notice of Drawings Irrevocable. A Notice of Drawing once given
shall be irrevocable and the Borrower shall be bound to make a Drawing in
accordance therewith, except as otherwise provided in this Agreement. If for
any reason a Drawing is not made in accordance with a Notice of Drawing, the
Borrower shall on demand pay to the Lender such amount (if any) as the Lender
may certify to be necessary to compensate it for any loss or expense reasonably
incurred in liquidating or redeploying funds arranged for the purpose of the
proposed Drawing or otherwise as a consequence of the proposed Drawing not
having been made in accordance with the Notice of Drawing.
4.4 Cancellation. Any part of the Facility that is undrawn at the
end of the Availability Period shall be deemed to be cancelled pursuant to
Clause 6.5.
5. INTEREST
5.1 Interest. The Borrower shall pay interest on the Loan on each
Interest Payment Date in accordance with the provisions of this Clause. In the
case of an Interest Period of six (6) months' duration, the interest accrued
during the first three (3) months shall be paid on the last day of that three
(3) month period and the interest accrued during the next three (3) months
shall be paid on the last day of that Interest Period.
5.2 Interest Periods. Interest shall be calculated on each advance
by reference to successive Interest Periods. The Interest Periods applicable
to the Loan and each Advance shall
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be one (1), two (2), three (3) or six (6) months as selected by the Borrower in
accordance with Clause 5.3 provided that :-
5.2.1 the first Interest Period shall commence on the date on which
the first Advance is made and end on the date falling one (1),
two (2), three (3) or six (6) months after the date of the
Advance;
5.2.2 in relation to each Advance after the first Advance, the first
Interest Period shall end on the last day of the Interest Period
then running in respect of the Loan so that all existing
Advances shall be consolidated upon the expiry of each Interest
Period (to the extent not already consolidated in accordance
with this Clause);
5.2.3 each Interest Period (except the first Interest Period in
relation to each Advance) shall commence on the last day of the
preceding Interest Period;
5.2.4 any Interest Period which would otherwise end on a non-Banking
Day shall instead end on the next following Banking Day or, if
that Banking Day is in another calendar month, on the
immediately preceding Banking Day;
5.2.5 if any Interest Period commences on the last Banking Day of a
calendar month or on a day for which there is no numerically
corresponding day in the calendar month one (1), two (2), three
(3) or six (6) months thereafter, that Interest Period shall,
subject to Clauses 5.2.2 and 5.2.6, end on the last Banking Day
of such later calendar month; and
5.2.6 if any Interest Period would otherwise extend beyond a repayment
date under Clause 6.1, then, subject to adjustment in accordance
with Clause 12.3, such Interest Period shall end on that date.
5.3 Selection. Subject to Clause 5.2, the Borrower may select the
length of an Interest Period, and the determination of the Cost of Funds by
reference either to the Swap Rate or SIBOR, by written notice to be received by
the Lender not later than 12:00 noon (Singapore time) on the fifth (5th)
Banking Day before the start of that Interest Period, and if the Borrower does
not give such a notice it shall be deemed to have selected a three (3) month
Interest Period and the determination of the Cost of Funds by SIBOR.
5.4 Rate and Calculation. The rate of interest applicable to the
Loan or the relevant part thereof for each Interest Period shall be the rate
per annum computed by the Lender to be the aggregate of the Cost of Funds for
that Interest Period and the Margin. Interest shall accrue from day to day,
shall be calculated on the basis of the actual number of days elapsed on a 360
day
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year, including the first day of the period during which it accrues but
excluding the last, and shall be paid (subject to Clause 5.1) in arrears on the
last day of each Interest Period applicable to the amount in respect of which
interest is payable. The Lender shall notify the Borrower in writing of each
interest rate determined under this Clause within three (3) working days after
value date of drawdown.
6. REPAYMENT, PREPAYMENT AND CANCELLATION
6.1 Repayment. The Borrower shall repay the Loan by eight (8)
successive quarterly instalments in the sum of S$250,000 for the first seven
(7) instalments and the full balance of unpaid principal for the final
instalment, the first instalment to be paid on the date falling thirty-nine
(39) months after the date of this Agreement. Any prepayment pursuant to Clause
6.2 shall reduce the amount of the repayment instalments calculated as
aforesaid in inverse order of maturity.
6.2 Voluntary Prepayment. The Borrower may prepay all or part of
the Loan on any Interest Payment Date, provided that :-
6.2.1 the Borrower shall have given to the Lender not less thirty (30)
days' prior written notice specifying the amount and date of
prepayment; and
6.2.2 all other sums then due and payable under this Agreement shall
have been paid.
6.3 Provisions applicable to Prepayments. Any notice of prepayment
given by the Borrower under any provision of this Agreement shall be
irrevocable and the Borrower shall be bound to make a prepayment in accordance
therewith. The Borrower may not prepay the Loan or any part thereof except in
accordance with the express terms of this Agreement. Amounts prepaid may not
be reborrowed under this Agreement. All prepayments shall comprise the stated
amount of principal and interest accrued and unpaid.
6.4 Other Amounts. If the Loan or any part thereof is prepaid under
any provision of this Agreement except Clause 6.2, the Borrower shall (unless
otherwise expressly provided for in this Agreement) also pay to the Lender :-
6.4.1 at the time of prepayment, interest accrued up to the date of
prepayment and all other sums payable by the Borrower under this
Agreement; and
6.4.2 on demand, such amount as is reasonably necessary to compensate
it for any loss or expense incurred as a consequence of such
prepayment (including any breakage
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cost, make-whole premium or any loss reasonably and properly
incurred in liquidating or redeploying funds acquired to
maintain the Loan), as certified in writing by the Lender.
6.5 Voluntary Cancellation. The Borrower may cancel all or part of
the undrawn Facility by giving to the Lender not less than thirty (30) days'
prior written notice, provided that any cancellation shall only be made on the
expiry of each Interest Period.
Any partial cancellation pursuant to this Clause shall reduce the undrawn part
of the Facility accordingly.
6.6 Final Repayment. The balance (if any) of the Loan together with
all accrued interest and other monies outstanding in connection with the
Facility shall be repaid on the Maturity Date.
7. MARKET DISRUPTION
7.1 Market Disruption. If in relation to any Interest Period :-
7.1.1 The Lender determines (which determination shall be conclusive
and binding) that by reason of circumstances affecting the
Singapore interbank market generally, adequate and fair means do
not exist for ascertaining SIBOR or Swap Rate for that Interest
Period; or
7.1.2 no rate appears on the Telerate Monitor Screen for that Interest
Period and less than two (2) Reference Banks notify the Lender
of a rate for the purpose of determining SIBOR for that Interest
Period,
the Lender shall promptly notify the Borrower and no Advance or further Advance
(as the case may be) shall be made unless and until an alternative basis is
agreed in accordance with Clause 7.2.
7.2 Alternative Basis by Agreement. Immediately following such
notification, the Borrower and the Lender shall negotiate in good faith with a
view to agreeing upon an alternative basis for funding the Loan and determining
the applicable interest rate, interest periods and interest payment dates. If
an alternative basis is agreed in writing within a period of thirty (30) days
after such notification or such longer period for discussion as the Borrower
and the Lender may agree, the alternative basis shall take effect in accordance
with its terms.
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7.3 Alternative Basis Determined by Lender for Outstanding Advances.
If an alternative basis is not so agreed and one or more Advances have been
made, the Borrower shall pay interest to the Lender for the relevant Interest
Period at the rate per annum equal to the aggregate of (i) the Margin and (ii)
the cost (expressed as an annual interest rate) to the Lender of funding the
Loan during the relevant Interest Period as certified in writing by the Lender.
7.4 Cancellation and Prepayment. If an alternative basis is not so
agreed pursuant to Clause 7.2 and :-
7.4.1 if no Advance has been made, the Facility shall be cancelled and
all sums outstanding under this Agreement shall be paid to the
Lender at the end of the period for negotiation ascertained in
accordance with Clause 7.2; or
7.4.2 if one or more Advances have been made, the Borrower may request
to, or the Lender may require the Borrower to, prepay the Loan
(in either case without any prepayment penalty), by way of
giving written notice to the other party specifying a prepayment
date which is not less than ninety (90) days after such notice
is given. On the specified date the Facility shall be cancelled
and the Borrower shall prepay the Loan in full together with
interest thereon from the beginning of the relevant Interest
Period to the date of prepayment. For this purpose, the
interest rate from time to time applicable to the Lender shall
be the rate ascertained in accordance with Clause 7.3 in
relation to the relevant period.
8. CHANGE OF LAW OR CIRCUMSTANCES
8.1 Unlawfulness. If it becomes unlawful for the Lender to give
effect to its obligations hereunder, the Lender shall so notify the Borrower,
whereupon the Lender's obligations under the Facility shall cease. The
Borrower shall forthwith after such notification, or within such longer period
as the Lender may certify as being permitted by the relevant law, prepay
(without any prepayment penalty being payable) the Loan in full together with
interest accrued thereon to the date of prepayment and any other monies owing
hereunder to the Lender. The Lender shall notify the Borrower as soon as
practicable if it receives notice that there will be any change in law as
aforesaid.
8.2 Increased Cost. If the Lender determines that any change in any
applicable law or regulation or in the interpretation or application thereof or
compliance by the Lender with any applicable direction, request or requirement
(whether or not having the force of law) of any competent governmental or other
authority does or will :-
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8.2.1 subject the Lender to any tax or other payment with reference to
sums payable by the Borrower under this Agreement; or
8.2.2 impose on the Lender any other condition the effect of which is
to (i) increase the cost to the Lender of funding under the
Facility or (ii) reduce the amount of any payment receivable by,
or the effective return to, the Lender in respect of the
Facility or (iii) impose a cost on the Lender resulting from its
funding under the Facility;
the Lender may notify the Borrower, and the Borrower shall from time to time
upon demand pay to the Lender such amounts as are necessary to compensate it
for such tax, payment, increased cost or reduction (each an "increased cost").
So long as the circumstances giving rise to such increased cost continue, the
Borrower may, after giving the Lender not less than thirty (30) days' prior
written notice, prepay (without any prepayment penalty being payable) all (but
not only part of) the Loan, and upon the giving of such notice the Lender's
obligation under the Facility shall cease. The Borrower shall in such event on
the applicable date of prepayment prepay the Loan, interest accrued up to the
date of prepayment and all other sums payable by the Borrower under this
Agreement. Clause 6.3 shall apply to any such prepayment. In any case where
the cost to the Lender of funding the Facility is increased, the Lender shall
in any notification to the Borrower provide a certified schedule explaining how
the increased cost applies to the Facility.
9. TAXES AND OTHER DEDUCTIONS
9.1 No Deductions or Withholdings. All sums payable by the Borrower
under this Agreement shall be paid in full without set-off or counterclaim or
any restriction or condition and free and clear of any tax or other deductions
or withholdings of any nature. If the Borrower or any other person is required
by any law or regulation to make any deduction or withholding (on account of
tax or otherwise) from any payment for the account of the Lender, the Borrower
shall, together with such payment, pay such additional amount as will ensure
that the Lender receives (free and clear of any tax or other deductions or
withholdings other than those for which the Lender would otherwise have been
liable) the full amount which it would have received if no such deduction or
withholding had been required. The Borrower shall promptly forward to the
Lender copies of official receipts or other evidence showing that the full
amount of any such deduction or withholding has been paid over to the relevant
taxation or other authority.
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9.2 Advance Notification. If at any time the Borrower becomes aware
that any such deduction, withholding or payment contemplated by Clause 9.1 is
or will be required, it shall immediately notify the Lender and supply all
available details thereof.
9.3 Tax Credits. In the event that the Lender actually receives the
benefit of a tax credit or allowance resulting solely and directly from a
payment by the Borrower under Clause 9.1 then the Lender shall pay to the
Borrower such part of that benefit as in the opinion of the Lender will leave
it (after such payments) in the same position that it would have been if the
Borrower had not been required under Clause 9.1 to make payment on account of
any deduction or withholding as referred to in Clause 9.1. Provided Always
That the Lender shall :-
9.3.1 determine the amount of any such benefit in consultation with
the Borrower;
9.3.2 have an absolute discretion as to the order and manner in which
it employs or claims tax credits and allowances available to it;
and
9.3.3 not be obliged to disclose to the Borrower any information
regarding its tax affairs or tax compensations.
10. FEES AND EXPENSES
10.1 Front-end Fee. The Borrower shall within fourteen (14) days
from the date of this Agreement pay to the Los Angeles branch of the Lender a
front-end fee of US$35,000.
10.2 Expenses. The Borrower shall forthwith on demand and whether or
not any Advance is made pay to or reimburse the Lender for its own account for
all costs, charges and expenses (including legal and other fees on a full
indemnity basis and printing, translation, communication, advertisement, travel
and all other out-of-pocket expenses properly and reasonably incurred by it in
connection with the negotiation, preparation, execution and (where relevant)
registration of this Agreement, the Security Documents and any other
documentation required hereunder or thereunder and any amendment hereto or to
any Security Document and any inspection, calculation, approval, consent or
waiver to be conducted, made or given by the Lender pursuant to any provision
of this Agreement or any Security Document, subject to a maximum sum of
S$25,000.00.
10.3 Enforcement Costs. The Borrower shall from time to time
forthwith on demand pay to or reimburse the Lender for all costs, charges and
expenses (including legal and other fees on a full indemnity basis and all
other out-of-pocket expenses including valuation costs) certified by the
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Lender as being properly and reasonably incurred by it in exercising any of its
rights or powers under this Agreement or any Security Document or in suing for
or seeking to recover any sums due under this Agreement or any Security
Document or otherwise preserving or enforcing its rights under this Agreement
or any Security Document or in defending any claims brought against it by any
third party in respect of this Agreement or any Security Document or in
releasing or re-assigning any Security Document.
10.4 Duties. The Borrower shall pay all present and future stamp and
other like duties and taxes and all notarial, registration, recording and other
like fees certified by the Lender as being payable in respect of this Agreement
or any Security Document and shall indemnify the Lender and the Security Agent
against all liabilities, costs and expenses which may result from any default
by the Borrower in paying such duties, taxes or fees.
11. ADVERSE MARKET CHANGE
Notwithstanding anything herein contained, if after the
execution of this Agreement there shall come to the attention of the Lender
such a change in national or international monetary, financial, political,
economic or stock market conditions or currency exchange or interest rates or
exchange controls as would, in the reasonable opinion of the Lender, be likely
to prejudice materially the success of the Facility, the Lender may terminate
this Agreement and upon such notice being given the parties hereto shall
(except as otherwise specifically provided herein) be released and discharged
from their respective obligations under this Agreement.
12. PAYMENTS AND EVIDENCE OF DEBT
12.1 Advances. The Lender shall make available to the Borrower all
Advances by payment in Singapore Dollars and in immediately available and
transferable funds to such account in Singapore as the Borrower shall have
previously agreed with the Lender.
12.2 Payments by Borrower. All payments by the Borrower under this
Agreement shall be made to the Lender not later than 10:00 a.m. (Singapore
time) on the relevant due date by payment in Singapore Dollars and in
immediately available and transferable funds to such account of the Lender with
such bank in Singapore as the Lender shall have designated for that purpose.
12.3 Banking Days. If any sum would otherwise become due for payment
on a non-Banking Day that sum shall become due on the next following Banking
Day and interest shall be
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adjusted accordingly, except that if any repayment due under Clause 6.1 would
then become due in another calendar month such repayment shall become due on
the immediately preceding Banking Day.
12.4 Evidence of Debt. The Lender shall maintain in its books in
accordance with its usual practice a set of accounts recording the amounts from
time to time owing by the Borrower hereunder. In any legal proceeding and
otherwise for the purposes of this Agreement the entries made in such accounts
shall, in the absence of manifest error, be conclusive as to the existence and
amounts of the obligations of the Borrower recorded therein.
12.5 Certificate Conclusive and Binding. Where any provision of this
Agreement provides that the Lender may certify or determine an amount or rate
payable by the Borrower, a certificate by the Lender (signed by any of its
officers) as to such amount or rate shall be conclusive and binding on the
Borrower in the absence of manifest error.
13. REPRESENTATIONS AND WARRANTIES
13.1 Representations and Warranties. The Borrower represents and
warrants to the Lender that :-
13.1.1 each of the Borrower and the Security Parties is a company duly
incorporated and validly existing under the laws of its country
of incorporation and has full power, authority and legal right
to own its property and assets and to carry on its business;
13.1.2 each of the Borrower and the Security Parties has the power to
enter into, exercise its rights and perform and comply with its
obligations under this Agreement and the Security Documents to
which it is a party;
13.1.3 all actions, conditions and things required to be taken,
fulfilled and done (including the obtaining of any necessary
authorisation) in order to enable each of the Borrower and the
Security Parties (i) to lawfully enter into, exercise its rights
and perform and comply with its obligations under this Agreement
and the Security Documents to which it is a party and (ii) to
ensure that those obligations are valid, legally binding and
enforceable have been taken, fulfilled and done;
13.1.4 the obligations of each of the Borrower and the Security Parties
under this Agreement and the Security Documents to which it is a
party are valid, binding and enforceable;
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13.1.5 neither the execution of this Agreement or the Security
Documents to which the Borrower or any Security Party is a party
nor the performance by the Borrower or any Security Party of any
of its obligations or the exercise of any of its rights
hereunder or thereunder will conflict with or result in a breach
of any law, regulation, judgment, order, authorisation,
agreement or obligation applicable to it or cause any limitation
placed on it or the powers of its directors to be exceeded or
result in the creation of or oblige the Borrower or any Security
Party to create a Charge in respect of any of its property or
assets except in favour of the Lender under or pursuant to the
Security Documents to which it is a party;
13.1.6 except for the registration of the Assignment of Property and
the Mortgage with the Land Titles Registry in Singapore and the
lodging with the Registry of Companies and Businesses of
particulars of the charges created pursuant to the Security
Documents, it is not necessary in order to ensure the validity,
enforceability or admissibility in evidence in proceedings of
this Agreement or any of the Security Documents in Singapore or
any other relevant jurisdiction that it or any other document be
filed or registered with any authority in Singapore, or
elsewhere or that any tax be paid in respect thereof;
13.1.7 no material litigation, arbitration or administrative proceeding
is currently taking place or pending or threatened against the
Borrower or any Security Party or its assets or revenues which
has or would have a material effect on its ability to perform
its obligations hereunder or under any Security Document to
which it is a party, with the exception of the current class
action law suits against the Guarantor, full details of which
have been furnished to the Lender;
13.1.8 neither the Borrower nor any Security Party is in default under
any law, regulation, judgment, order, authorisation, agreement
or obligation applicable to it or its assets or revenues, the
consequences of which default could materially affect its
ability to perform its obligations under this Agreement or any
of the Security Documents to which it is a party and no Event of
Default has occurred;
13.1.9 no Charge exists over all or any part of the assets or revenues
of the Borrower (save in respect of the Borrower's automated
storage and retrieval system) except as created by the Security
Documents or liens arising by operation of law in the ordinary
course of business or as previously disclosed in writing to and
agreed by the Lender;
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13.1.10 the Borrower has no indebtedness to any party except
indebtedness arising in the ordinary course of its business or
as previously disclosed in writing to and agreed by the Lender;
13.1.11 the most recent audited financial statements of the Borrower for
the time being (including the audited profit and loss account
and balance sheet) were prepared in accordance with applicable
laws and regulations of Singapore and generally accepted
accounting principles and policies in Singapore consistently
applied (except for changes in such principles and policies
required for the business expediency of the Borrower) and show a
true and fair view of the financial position of the Borrower as
at the end of, and the results of its operations for, the
financial period to which they relate, and there has been no
material adverse change in the business or financial condition
of the Borrower since the date of such financial statements;
13.1.12 no meeting has been convened for the winding-up of the Borrower
or any Security Party 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;
13.1.13 neither the Borrower nor any of its assets is entitled to
immunity from suit, execution, attachment or other legal
process, and its entry into this Agreement and each of the
Security Documents to which it is a party constitutes, and the
exercise of its rights and performance of and compliance with
its obligations under this Agreement and each of the Security
Documents to which it is a party will constitute, private and
commercial acts done and performed for private and commercial
purposes;
13.1.14 no information, exhibit or report furnished in writing by the
Borrower or any Security Party to the Lender in connection with
the negotiation of this Agreement or the Security Documents
contained any misstatement of fact as at the date of such
exhibit or report or as at the date when such information was
given which was material in the context of this Agreement or the
Security Documents or omitted to state a fact as at such date
which in any such case would be materially adverse to the
interests of the Lender under this Agreement or the Security
Documents;
13.1.15 the Borrower is the legal and beneficial owner of all rights of
the Lessee (as defined in the Building Agreement) under the
Building Agreement, the Lease and the estate and right in the
Property thereunder and the Property is free from any lien,
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mortgage, charge or encumbrance other than the Lessor's rights
and entitlement under the terms of the Building Agreement and
the Lease and the Assignment of Property and the Mortgage;
13.1.16 the accounting year of the Borrower ends on 31 May of each year;
13.1.17 the Borrower's paid up capital (including retained earnings) is
not less than S$1,000,000; and
13.1.18 the Facility shall at all times be used exclusively for the
purpose set out in Clause 2.2.
13.2 Continuing Representation and Warranty. The Borrower also
represents and warrants to and undertakes with the Lender that the foregoing
representations and warranties will be true and accurate throughout the
continuance of this Agreement with reference to the facts and circumstances
subsisting from time to time.
13.3 Acknowledgement of Reliance. The Borrower acknowledges that the
Lender has entered into this Agreement in reliance upon the representations and
warranties contained in this Clause.
14. UNDERTAKINGS
14.1 Affirmative undertakings. The Borrower undertakes and agrees
with the Lender throughout the continuance of this Agreement and so long as any
sum remains owing hereunder that the Borrower will, unless the Lender otherwise
agrees in writing :-
14.1.1 supply to the Lender (via Standard Chartered Bank Los Angeles or
Standard Chartered Bank Singapore):-
(i) as soon as they are available, but in any event within
ninety (90) days after the end of each accounting year of
the Borrower and the Guarantor, copies of their
respective financial statements in respect of such
accounting year (including a profit and loss account and
balance sheet) together with the auditor's clearance
letter with the final audited statutory accounts to be
provided not later than one hundred and eighty (180) days
after the end of each accounting year, such financial
statements to be audited by an auditor acceptable to the
Lender;
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(ii) as soon as they are available, but in any event within
ninety (90) days after the end of each quarter of each
accounting year of the Borrower and the Guarantor, copies
of their respective unaudited financial statements
(including a profit and loss account and balance sheet)
prepared on a basis consistent with the audited financial
statements of the Borrower and the Guarantor together
with certificates signed by a director of the Borrower
and the Guarantor (as applicable) to the effect that such
financial statements are, in the opinion of such officer,
true in all material respects and present fairly the
financial position of the Borrower and the Guarantor (as
the case may be) as at the end of, and the results of its
operations for, such half-year period;
(iii) as soon as practicable, copies of all financial
statements and related financial information issued by
the Borrower and the Guarantor to their respective
creditors in general; and
(iv) promptly on request, such additional financial or other
information (including, but not limited to, cash flows
and profit and loss projections) relating to the Borrower
and the Guarantor, and any Security Party and use its
best endeavours to supply the same in respect of any
Security Party, as the Lender may from time to time
reasonably request;
14.1.2 keep proper records and books of account in respect of its
business and permit the Lender and/or any professional
consultants appointed by the Lender at all reasonable times to
inspect and examine the records and books of account of the
Borrower and the Guarantor;
14.1.3 promptly inform the Lender in writing upon becoming aware of :-
(i) any Event of Default or Prospective Event of Default (and
of any action taken or proposed to be taken to remedy it)
promptly after becoming aware of it;
(ii) any litigation, arbitration or administrative proceeding
as referred to in Clause 13.1.7; and
(iii) any event coming to the knowledge of the Borrower which
might have a material and adverse effect on the ability
of the Borrower to perform its obligations hereunder;
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14.1.4 maintain its corporate existence and conduct its business in a
proper and efficient manner and in compliance with all laws,
regulations, authorisations, agreements and obligations
applicable to it and pay all taxes imposed on it when due
(except those being contested in good faith);
14.1.5 procure that there is no change in its shareholdings without the
prior written consent of the Lender, such consent not to be
unreasonably withheld;
14.1.6 procure that no material amendment or supplement is made to the
memorandum or articles of association of the Borrower, which has
or may have a material effect on the ability of the Borrower to
perform any of its obligations under this Agreement;
14.1.7 maintain in full force and effect all such authorisations as are
referred to in Clause 13.1.3, and take steps to obtain and
thereafter maintain in full force and effect any such
authorisations which may become necessary or advisable for the
purposes stated therein and comply with all conditions attached
to all authorisations obtained;
14.1.8 (i) keep itself and all its insurable assets (including the
Property) adequately insured with such insurance
companies acceptable to the Lender against loss or
destruction by fire, theft or flood and in amounts and on
terms usual or current for insurances of property similar
to the Property, including but not limited to
construction all risks insurance and/or property all
risks insurance covering the replacement value of the
Property and in any event in an amount not less than one
hundred percent (100%) of the Loan and punctually pay all
premiums and deliver copies of receipts therefor to the
Lender;
(ii) assign absolutely the benefit of the said policies except
third party liability insurance to the Lender; and
(iii) procure that the interest of the Lender is noted on the
said policies in a manner satisfactory to the Lender and
that the proceeds thereof shall be payable directly to
the Lender if the Lender has not otherwise been repaid;
14.1.9 use the Facility exclusively for the purposes specified in
Clause 2.2;
14.1.10 punctually pay all sums due from it and otherwise comply with
its obligations under this Agreement and all the Security
Documents to which it is a party; and
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14.1.11 at all times fully comply with all the terms, conditions,
stipulations in the Building Agreement and the Lease and any
valid order or notice made or served on the Borrower by any
relevant authorities with respect to the Property;
14.1.12 not do or suffer to be done or omitted any act matter or thing
in or in respect of the Property or any part thereof which shall
contravene the provisions of law, rule or regulations now or
hereafter affecting the Property;
14.1.13 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 the Lender may reasonably
consider necessary for giving full effect to this Agreement and
the Security Documents or securing to the Lender the full
benefits of all rights, powers and remedies conferred upon the
Lender in this Agreement and the Security Documents; and
14.1.14 ensure and procure that all covenants set out in the
Multicurrency Agreement to be observed by the Guarantor are duly
observed and/or complied with by the Guarantor. Notwithstanding
any termination or cancellation of said agreement, all such
covenants shall be incorporated by reference hereto and shall
remain in effect until this loan agreement is terminated
subject to the terms and conditions herein.
14.2 Negative undertakings. The Borrower undertakes and agrees with
the Lender throughout the continuance of this Agreement and so long as any sum
remains owing hereunder that the Borrower will not, unless the Lender otherwise
agrees in writing:-
14.2.1 merge or consolidate with any other entity or take any step with
a view to dissolution, liquidation or winding-up except for
mergers and consolidations between the Xxxxx Group of Companies;
14.2.2 invest in any other entity or provide financing to any person
(save to companies within the Xxxxx Group of Companies) except
by way of trade credit in the ordinary course of its business;
14.2.3 materially change the nature of its business or engage in any
other activities other than those relating to freight
forwarding, transport, distribution, customs broking,
warehousing, commission, shipping, booking and chartering, save
for involvement in the provision of financial services to the
Xxxxx Group of Companies;
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14.2.4 (whether by a single transaction or a number of related or
unrelated transactions and whether at one time or over a period
of time) sell, transfer, lease out, lend or otherwise dispose of
(whether outright, by a sale-and-repurchase or
sale-and-leaseback arrangement, or otherwise) all or
substantially all of its assets nor of any part of its assets
which, either alone or when aggregated with all other disposals
required to be taken into account under this paragraph, is
substantial in relation to its assets, taken as a whole or the
disposal of which (either alone or when so aggregated) could
have a material adverse effect on it except for :-
(i) disposals in the ordinary course of trading; and
(ii) any disposal which the Lender shall have agreed shall not
be taken into account;
14.2.5 make or grant any loan or advance or guarantee or in any other
manner be or become directly or indirectly or contingently
liable for any indebtedness or other obligation of any other
person, except as may be necessary in the ordinary course of its
business;
14.2.6 create or attempt to create, and shall not suffer or permit any
of its subsidiaries to, directly or indirectly, make, create,
incur, assume or suffer to exist any Charge upon or with respect
to any part of its property, whether now owned or hereafter
acquired, other than the following :-
(i) any Charge created by the Security Documents or
previously disclosed in writing to and agreed by the
Lender as of the date of this Agreement;
(ii) Charges for taxes, fees, assessments or other
governmental charges which are not overdue or remain
payable without penalty;
(iii) carrier's, warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar liens arising
in the ordinary course of business which are not overdue
or remain payable without penalty or which are being
contested in good faith and by appropriate proceedings,
which proceedings have the effect of preventing the
forfeiture or sale of the property subject thereto;
(iv) Charges on the property of the Borrower or any of its
subsidiaries securing the non-overdue performance of
bids, trade contracts (other than for borrowed money),
leases or statutory obligations, contingent obligations
or
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surety and appeal bonds and other non-delinquent
obligations of a like nature, in each case, incurred in
the ordinary course of business; provided that all such
Charges in the aggregate would not (even if enforced)
cause a material adverse effect on the ability of the
Borrower to perform its obligations hereunder and that
none of such Charges secure any indebtedness;
(v) liens consisting of judgment or judicial attachment
liens, provided that the enforcement of such liens is
effectively stayed and all such liens in the aggregate at
any time outstanding for the Borrower and its
subsidiaries do not exceed S$1,000,000;
(vi) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business
which, in the aggregate, are not substantial in amount,
and which do not in any case materially detract from the
value of the property subject thereto or interfere with
the ordinary conduct of the businesses of the Borrower
and its subsidiaries;
(vii) Charges on assets of corporations which become the
Borrower's subsidiaries after the date of this Agreement;
provided that such Charges existed at the time the
respective corporations became subsidiaries and were not
created in anticipation thereof; provided that any
indebtedness secured by such Charges shall not exceed
twenty percent (20%) of the Borrower's total assets on an
unconsolidated basis;
(viii) purchase money security interests on any property
acquired or held by the Borrower or any of its
subsidiaries in the ordinary course of business, securing
indebtedness incurred or assumed for the purpose of
financing all or any part of the cost of acquiring such
property; provided that (a) any such Charge attaches to
such property concurrently with or within twenty (20)
days after the acquisition thereof (or in the case of the
construction of improvements on real property, twenty
(20) days after substantial completion thereof), (b) such
Charge attaches solely to the property so acquired in
such transaction, (c) the principal amount of the debt
secured thereby and does not exceed one hundred percent
(100%) of the cost of such property, (d) the principal
amount of the indebtedness secured by any and all such
purchase money security interests shall not at any time
exceed twenty percent (20%) of the Borrower's total
assets on an unconsolidated basis and (e) no such Charge
which attaches after the date of this Agreement is on any
software or data (including data pertaining to accounts
receivable) used in connection
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with the accounting or other management information
systems of the Borrower or any of its subsidiaries;
(ix) liens securing obligations in respect of capital leases
on assets subject to such leases; provided that such
capital leases are otherwise permitted hereunder and that
the indebtedness secured by such liens shall not exceed
twenty percent (20%) of the Borrower's total assets on an
unconsolidated basis and no such Charge which attaches
after the date of this Agreement is on any software or
data (including data pertaining to accounts receivable)
used in connection with the accounting or other
management information systems of the Borrower or any of
its subsidiaries; and
(x) liens arising solely by virtue of any statutory or common
law provision relating to banker's liens, rights of
set-off or similar rights and remedies as to deposit
accounts or other funds maintained with a creditor
depository institution; provided that (a) such deposit
account is not a dedicated cash collateral account and is
not subject to restrictions against access by the
Borrower, and (b) such deposit account is not intended by
the Borrower or any subsidiary to provide collateral to
the depository institution;
14.2.7 borrow or raise credit save and except :-
(i) from the Lender pursuant to this Agreement;
(ii) from other banks or financial institutions for the
purpose of satisfying the Borrower's working capital
requirements, provided that such parties' rights in
respect of such borrowing or raising of credit is
subordinated (in such manner as may be required by the
Lender) to the Lender's rights under the Facility;
(iii) indebtedness existing on the date of this Agreement and
disclosed to the Lender;
(iv) indebtedness incurred in the ordinary course of its
business; or
(v) indebtedness secured by Charges permitted by Clause
14.2.6(vii), (viii) and (ix) in an aggregate amount
outstanding not to exceed twenty percent (20%) of the
Borrower's total assets on an unconsolidated basis;
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without the prior written consent of the Lender;
14.2.8 enter into any agreement or obligation which might materially an
adversely affect its financial or other condition;
14.2.9 it will not, without the prior consent in writing of the Lender,
sell or otherwise dispose or part with possession of, or agree,
conditionally or unconditionally, to sell or otherwise dispose
or part with possession of, any of its interest in the Property
or the building(s) thereon;
15. EVENTS OF DEFAULT
15.1 Events of Default. Each of the following events and
circumstances shall be an Event of Default :-
15.1.1 the Borrower fails to pay any sum payable under this Agreement
or any Security Document to which it is a party within ten (10)
Banking Days of such sum becoming due;
15.1.2 the Borrower or any Security Party fails duly and punctually to
perform or comply with any of its respective obligations,
representations, warranties or undertakings hereunder or under
any Security Document to which it is a party and in respect only
of a failure which is capable of remedy and which is not a
failure to pay money, does not remedy such failure to the
Lender's satisfaction within thirty (30) days (or such longer
period as the Lender may approve) after receipt of written
notice from the Lender requiring it to do so;
15.1.3 any representation or warranty made or deemed to be made or
repeated by the Borrower or any Security Party in or in
connection with this Agreement or any Security Document proves
to have been incorrect or misleading in any material respect;
15.1.4 the Borrower or any Security Party defaults or receives notice
of default of performance or compliance with any term or
condition under any agreement or obligation relating to
borrowing (including, without limitation, the Guarantor under
the Multicurrency Agreement) or any indebtedness of the Borrower
or any Security Party in an aggregate amount of the Singapore
Dollar equivalent of US$2,500,000 becomes payable or capable of
being declared payable before its stated maturity or
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is not paid within seven (7) days of such payment becoming due
or any Charge, guarantee or other security now or hereafter
created by the Borrower or any Security Party becomes
enforceable;
15.1.5 any of the consents, approvals or authorisations referred to in
Clause 14.1.7 is not granted or ceases to be in full force and
effect or is modified in a manner which, in the opinion of the
Lender, would materially and adversely affect the operations,
business or financial condition of the Borrower or the ability
of the Borrower to perform its obligations under this Agreement
or any Security Document to which it is a party, or if any law,
regulation, judgment or order suspends, varies, terminates or
excuses performance by the Borrower of any of its obligations
under this Agreement or any Security Document to which it is a
party or purports to do any of the same;
15.1.6 a creditor takes possession of all or a material part of the
business or assets of the Borrower or any execution or other
legal process is enforced against the business or any material
asset of the Borrower and is not discharged within thirty (30)
days;
15.1.7 a petition is presented or a proceeding is commenced or an order
is made or an effective resolution is passed or any other step
is taken by any person for the winding-up, insolvency, judicial
management, administration, reorganisation, reconstruction,
dissolution or bankruptcy of the Borrower or for the appointment
of a liquidator, receiver, judicial manager, administrator,
trustee or similar officer of the Borrower or of all or any part
of its business or assets and such petition, proceeding, order
or resolution is not discharged or nullified within thirty (30)
days of its occurrence;
15.1.8 the Borrower stops or suspends payments to its creditors
generally or is unable or admits its inability to pay its debts
as they fall due or seeks to enter into any composition or other
arrangement with its creditors or is declared or becomes
insolvent;
15.1.9 any event occurs which has an effect analogous to the matters
set out in Clauses 15.1.6, 15.1.7 and 15.1.8 above in any
jurisdiction in which the Borrower carries on business;
15.1.10 the Borrower ceases to carry on its business or any substantial
part thereof or changes the nature or scope of its business or
the Borrower disposes of or any governmental or other authority
expropriates all or any substantial part of its business or
assets;
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15.1.11 any event which has an effect equivalent or similar to any of
the events described in Clauses 15.1.6., 15.1.7, 15.1.8 or
15.1.10 above occurs, mutatis mutandis, in relation to any
Security Party;
15.1.12 this Agreement, any Security Document, or any provision hereof
or thereof ceases for any reason to be in full force and effect
or is terminated or becomes invalid or unenforceable or if there
is any dispute regarding the validity or enforceability of the
same which is not resolved within thirty (30) days from the date
of the dispute having arisen or if there is any purported
termination otherwise than in accordance with its terms or
repudiation of the same or it becomes impossible or unlawful for
the Borrower or any other party thereto to perform any of its
respective obligations hereunder or thereunder or for the Lender
to exercise all or any of its rights, powers and remedies
hereunder or thereunder;
15.1.13 the whole or a substantial part of the Property or any material
part thereof is seized, expropriated or subject to any
compulsory acquisition or requisition for use or is wholly
destroyed, or any material damage occurs in respect of the
buildings on the Property, whether insured or not;
15.1.14 any situation occurs which in the opinion of the Lender gives
reasonable grounds to believe that a material adverse change in
the business or financial condition or prospects of the Borrower
or any Security Party has occurred which cannot be reversed
within thirty (30) days and that as a result the ability of the
Borrower or any such other party to perform its respective
obligations hereunder or under any Security Document to which it
is a party has been or will be materially and adversely
affected.
15.2 Declarations. If an Event of Default has occurred and is
continuing the Lender may, by written notice to the Borrower :-
15.2.1 declare the Loan, accrued interest and all other sums payable
hereunder to be, whereupon they shall become, immediately due
and payable without further demand, notice or other legal
formality of any kind, and/or
15.2.2 declare the Facility terminated whereupon the obligation of the
Lender to make further Advances hereunder shall immediately
cease.
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16. DEFAULT INTEREST
16.1 Rate of Default Interest. If the Borrower fails to pay any sum
payable under this Agreement when due, the Borrower shall pay interest on such
sum from and including the due date to the date of actual payment (as well
after as before judgment) at the rate per annum computed by the Lender to be
the higher of :-
16.1.1 the rate of interest (if any) payable in respect of such sum
immediately before the due date; or
16.1.2 the aggregate of (i) five percent (5%), (ii) the Margin and
(iii) SIBOR calculated with reference to such periods and such
amounts as the Lender may reasonably consider appropriate or, if
Clause 7.1 applies, the rate from time to time certified by the
Lender to be the rate representing the cost to it of funding the
unpaid sum. For these purposes, SIBOR shall be determined by
the Lender on such date or dates on or after the due date for
payment as the Lender may reasonably select.
16.2 Calculation of Default Interest. Interest at the rate or rates
determined from time to time as aforesaid shall accrue from day to day, shall
be calculated on the basis of the actual number of days elapsed and a 360 day
year shall be compounded at the end of each successive funding period which may
reasonably be considered appropriate by the Lender for the purposes of this
Clause and shall be payable from time to time on demand. The Lender shall
notify the Borrower of the duration of each funding period and each interest
rate determined under this Clause.
17. INDEMNITIES AND SET-OFF
17.1 General Indemnity. The Borrower shall indemnify the Lender
against all losses, liabilities, damages, costs and expenses (including loss of
profit) which the Lender may reasonably incur as a consequence of any Event of
Default or any other breach by the Borrower of any of its obligations under
this Agreement or any failure to borrow in accordance with a Notice of Drawing
or any prepayment under this Agreement (except under Clause 6.2, and Clause
9.2) or otherwise in connection with this Agreement (including any loss or
expense incurred in liquidating or redeploying funds acquired to maintain the
Loan or arranged for the purpose of a proposed Advance (as the case may be) and
any interest or fees incurred in funding any unpaid sum, but taking into
account any interest paid by the Borrower in respect of such unpaid sum under
Clause 16.
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17.2 Currency Indemnity. Singapore Dollars shall be the currency of
account and of payment in respect of sums payable under this Agreement. If an
amount is received in another currency, pursuant to a judgment or order or in
the liquidation of the Borrower or otherwise, the Borrower's obligations under
this Agreement shall be discharged only to the extent that the Lender may
purchase Singapore Dollars with such other currency in accordance with normal
banking procedures upon receipt of such amount. If the amount in Singapore
Dollars which may be so purchased, after deducting any costs of exchange and
any other related costs, is less than the relevant sum payable under this
Agreement, the Borrower shall indemnify the Lender and the Security Agent
against the shortfall. This indemnity shall be an obligation of the Borrower
independent of and in addition to its other obligations under this Agreement
and shall take effect notwithstanding any time or other concession granted to
the Borrower or any judgment or order being obtained or the filing of any claim
in the liquidation, dissolution or bankruptcy (or analogous process) of the
Borrower.
17.3 Set-Off. If an Event of Default has occurred, the Lender shall
(without prejudice to any general or banker's lien, right of set-off or any
other right to which it may be entitled) have the right, upon notice to the
Borrower, to set off and apply any credit balance on any account (whether
subject to notice or not and whether matured or not and in whatever currency)
of the Borrower with the Lender and any other indebtedness owing by the Lender
(as the case may be) to the Borrower, against the liabilities of the Borrower
under this Agreement, the Lender is authorised to purchase with the monies
standing to the credit of any such account such other currencies as may be
necessary for this purpose.
18. AMENDMENTS
Any amendment or waiver of any provision of this Agreement and
any waiver of any default under this Agreement shall only be effective if made
in writing and signed by or on behalf of the Borrower and the Lender.
19. WAIVER AND SEVERABILITY
Time is of the essence of this Agreement but no failure or delay
by the Lender in exercising any right, power or remedy hereunder shall impair
such right, power or remedy or operate as a waiver thereof, nor shall any
single or partial exercise of the same preclude any further exercise thereof or
the exercise of any other right, power or remedy. The rights, powers and
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remedies herein provided are cumulative and do not exclude any other rights,
powers and remedies provided by law. If at any time any provision of this
Agreement is or becomes illegal, invalid or unenforceable in any respect under
the law of any jurisdiction, the legality, validity and enforceability of such
provision under the law of any other jurisdiction, and of the remaining
provisions of this Agreement, shall not be affected or impaired thereby.
20. MISCELLANEOUS
20.1 Entire Agreement. This Agreement and the documents referred to
herein constitute the entire obligation of the Lender and supersede any
previous expressions of intent or understandings in respect of this
transaction.
20.2 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties on separate counterparts which when taken
together shall be deemed to constitute one agreement.
21. ASSIGNMENT
21.1 The Borrower. This Agreement shall be binding on and inure to
the benefit of the Borrower and its successors, but the Borrower shall not
assign any of its rights hereunder.
21.2 The Lender. This Agreement shall be binding on and inure to the
benefit of the Lender and its successors and permitted assigns. The Lender may
at any time, subject to giving prior notice to the Borrower, assign to any one
or more banks or other third party (an "assignee lender") all (but not only
part of) its rights, benefits and obligations of the Lender under or arising
out of this Agreement and the Security Documents.
21.3 Disclosure. The Lender may disclose to any assignee, transferee
or participant or potential assignee, transferee or participant on a
confidential basis such public information about the Borrower as the Lender
shall consider appropriate. The Lender and any person to whom disclosure has
been made pursuant to this Clause may also make such disclosures as may be
required by any applicable law or regulation of the United States of America or
elsewhere. All information concerning the Borrower of a non-public nature may
only be disclosed with the prior consent of the Borrower.
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21.4 Reference Banks. The Lender may, at any time, replace any
Reference Bank at any time with such other reputable bank as the Lender shall
designate and the Lender shall give notice of any such replacement to the
Borrower.
22. NOTICES
22.1 Delivery. Each notice, demand or other communication to be
given or made under this Agreement shall be in writing and delivered or sent to
the relevant party at its address or fax number set out below (or such other
address or fax number as the addressee has by five (5) days' prior written
notice specified to the other parties) :-
To the Borrower: Xxxxx Logistics (S) Xxx Xxx
0 Xxxxxx Xxxxx Xxxx
Xxxxxxxxx 000000
Fax Number : 546 4748
Attention : Xx Xxx Xxxxx Xxxx
With copies to: Xxxxx Companies, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxx of America
Fax Number : 0 (000) 000 0000/000 0000
Attention : General Counsel / Treasurer
To the Lender: Standard Chartered Bank
0 Xxxxxxx Xxxx #00-00
Xxxxxxxxx 000000
Fax Number : 538 9363
Attention : Xx Xxxxxx Xxx
22.2 Deemed Delivery. Any notice, demand or other communication so
addressed to the relevant party shall be deemed to have been delivered (a) if
given or made by letter, when actually delivered to the relevant address, and
(b) if given or made by fax, when despatched, provided that, if such day is not
a working day in the place to which it is sent, such notice, demand or other
communication shall be deemed delivered on the next following working day at
such place.
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22.3 Language. Each notice, demand or other communication hereunder
and any other documents required to be delivered hereunder shall be either in
English or accompanied by a certified translation thereof into the English
language.
23. GOVERNING LAW AND JURISDICTION
23.1 Law. This Agreement and the rights and obligations of the
parties hereunder shall be governed by and construed in accordance with the
laws of Singapore.
23.2 Jurisdiction. The Borrower agrees that any legal action or
proceeding arising out of or relating to this Agreement may be brought in the
courts of Singapore and irrevocably submits to the non-exclusive jurisdiction
of such courts.
23.3 No Limitation on Right of Action. Nothing herein shall limit
the right of the Lender to commence any legal action against the Borrower
and/or its property in any other jurisdiction or to serve process in any manner
permitted by law, and the taking of proceedings in any jurisdiction shall not
preclude the taking of proceedings in any other jurisdiction whether
concurrently or not.
23.4 Waiver, Final Judgement Conclusive. The Borrower hereby
irrevocably and unconditionally waives any objection which it may now or
hereafter have to the choice of Singapore as the venue of any legal action
arising out of or relating to this Agreement. The Borrower also agrees that a
final judgment against it in any such legal action shall be final and
conclusive and may be enforced in any other jurisdiction, and that a certified
or otherwise duly authenticated copy of the judgment shall be conclusive
evidence of the fact and amount of its indebtedness.
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IN WITNESS WHEREOF this Agreement has been executed by the
parties hereto on the day and year first above written.
THE BORROWER
SIGNED for and on behalf of )
)
XXXXX LOGISTICS (S) PTE LTD )
)
by :- Xxxxx Xxxxxxx )
by :- X. X. Xxx
THE LENDER
SIGNED for and on behalf of )
)
STANDARD CHARTERED BANK )
)
by :- Xxxxxx X. Xxxxxxxx )
by :- Xxxx X. Xxxxxxx-Xxxxxxxx
THE GUARANTOR
SIGNED for and on behalf of )
)
XXXXX COMPANIES, INC. )
)
by :- Xxxxxx Xxxxxx
by :- Xxxxxx X. Xxxxxx )
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SCHEDULE 1
FORM OF NOTICE OF DRAWING
From : Xxxxx Logistics (S) Pte Ltd
To : Standard Chartered Bank
n 1997
Dear Sirs,
S$19,500,000 LOAN FACILITY:
LOAN AGREEMENT DATED n
We refer to the above Loan Agreement, and hereby give notice that we wish to
make a Drawing under the Facility on n 199n in the amount of S$n.
The proceeds of the Drawing are to be used exclusively for the purposes
specified in the Loan Agreement.
The proceeds of the Drawing should be disbursed to [specify account details or
the ways of disbursed].
The First Interest Period in relation to the Advance shall be n month (subject
as provided in Clause 5.2 of the Loan Agreement).
The Cost of Funds shall be calculated with reference to the [Swap Rate/SIBOR]*.
We confirm that :-
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(a) the representations and warranties set out in Clause 13.1 of the Loan
Agreement, repeated with reference to the facts and circumstances subsisting at
the date of this notice, remain true and correct; and
* Please delete where appropriate
(b) no Event of Default or Prospective Event of Default has occurred which
remains unwaived or unremedied or would result from the making of the Drawing.
Terms defined in the Loan Agreement have the same meanings when used in this
notice.
For and on behalf of
Xxxxx Logistics (S) Pte Ltd
