The 28th of May 2009 BETWEEN ASTRATA (ASIA PACIFIC) PTE LTD as Chargor And FAME TRADING LTD as Lender DEBENTURE
Exhibit 10.4
Execution
Copy
The
28th
of May
2009
BETWEEN
ASTRATA
(ASIA PACIFIC) PTE LTD
as
Chargor
And
FAME
TRADING LTD
as
Lender
Execution
Copy
CONTENTS
| Clause | Heading |
Page
|
|
1.
|
Definitions
|
1-2
|
|
2.
|
Facility
|
3
|
|
3.
|
Charge
|
3
|
|
4.
|
Position
of Other Security
|
4
|
|
5.
|
Continuing
Security
|
4-5
|
|
6.
|
Covenants
and undertakings
|
5.7
|
|
7.
|
Events
of Default
|
7-8
|
|
8.
|
Powers
of The Lender on Default By The Charger
|
8-9
|
|
9.
|
Representations
and Warranties
|
9-10
|
|
10.
|
Appointment
of Receiver
|
11
|
|
11.
|
Receiver
|
11-13
|
|
12.
|
Power
of Attorney
|
13
|
|
13.
|
Application
of Monies By Receiver
|
13-14
|
|
14.
|
Appointment
of Receiver Not Affecting Other Powers
|
14
|
|
15.
|
Appointment
of Lender As Attorney in Fact
|
|
|
16.
|
No
Enquiry By Third Puny
|
1-1
|
|
17.
|
Waiver
Not To Prejudice Rights of The Lender
|
14-15
|
|
IS.
|
Indulgence
|
15
|
|
19.
|
Rights
of The Lender
|
15
|
|
20.
|
Payment
|
16
|
|
21.
|
Remedies
and Waivers
|
16
|
|
22.
|
Indemnity
|
16-17
|
Execution
Copy
CONTENTS
|
Clause
|
Heading |
Page
|
|
23.
|
Calculations
|
17
|
|
24.
|
Assignment
|
17
|
|
25.
|
Notices
and Xxxxxxxxxxx
|
00
|
|
00.
|
Partial
Invalidity
|
19
|
|
27
|
Counterparts
|
19
|
|
28.
|
Governing
Law and Jurisdiction
|
19
|
THIS
DEBENTURE is made the
18th day of May 2009/
BETWEEN
|
A.
|
ASTRATA (ASIA PACIFIC)
PTE LTD (the "Chargor", which
expression shall unless the context otherwise requires. include its
successors and permitted assigns), a company incorporated in the Republic
of Singapore and having its registered office at 000 Xxx Xxxx Xxxx #00-0 X, Xxxxxxxxx
000000.
|
AND
|
B.
|
FAME
TRADING LTD (the "Lender", which
expression shall unless the context otherwise requires, include its
successors and permitted assigns), a company incorporated in British
Virgin Islands and having its registered office at Akara Building. 00 Xx
Xxxxxx Xxxxxx. Wickhams Cay I, Road Town, Tortola. British Virgin
Islands.
|
WHEREAS
|
(1)
|
The
Lender has, at the request of the Chargor, agreed to make available to the
Chargor, inter alia, theFacility
(as hereinafter defined) on the terms and conditions contained in the
Transaction Documents (as hereinafter
defined)
|
|
(2)
|
As
a condition precedent to and security for the grant of the Facility, the
Chargor has agreed, inter alia, to execute
a floating charge over the Charged Property (as hereinafter defined) in
favour of the Lender, as security, for the payment and repayment by the
Chargor of the Total Indebtedness (as hereinafter
defined).
|
NOW THIS DEBENTURE WITNESSETH
as follows:
|
1.
|
DEFINITIONS
|
|
(A)
|
Interpretation:
In this Debenture, except to the extent that the context otherwise
requires all words and expressions as defined in the
Facility Agreement shall have the same meanings when used or referred to
herein and in addition, the following words or expressions shall have the
following meanings respectively:
|
"Business Day" means a
day on which the banks are open for business in United States of America and
Singapore except Saturdays, Sundays and public holidays in the said
countries;
“Charged Property”
means the property and assets of the Chargor charged pursuant to Clause 3
hereof:
"Event of
Default" means any one of the
events mentioned in Clause 7
or any event or circumstance which, with the giving of any notice. And
for the lapse of any period of time, and/or the fulfilment of any other
requirement could become in the view of the Lender one of the events mentioned
in that Clause;
"Facility Agreement"
means the facility agreement to be executed by the Lender and the
Borrower contemporaneously with the execution of this Debenture:
"Lien" means any
mortgage, deed of trust, charge, pledge, lien. attachment, encumbrance or other
security interest or any segregation of assets or revenues or other preferential
arrangement) whether or not constituting a security interest and whether or not
enforceable in law) with respect to any present or future assets, revenues or
rights to the receipt of income of the party referred to in the context in which
the term is used:
Page 1 of
23
"Receivables" means
all rights now owned or hereafter acquired or created, to payment under any
contract not yet earned by performance, all book debts, invoice debts, contract
rights, accounts, notes, bills, acceptances and other forms of obligation owed
by or owing to the Chargor (including all
rights to receive payments under presently existing or hereafter acquired or
created letters of credit) or by virtue of goods sold or leased, services
rendered whether or not evidenced by any writing, and all extensions and
renewals of any of the above:
“Total Indebtedness”
has the meaning
ascribed to it in the Facility Agreement;
"Facility" has the
meaning ascribed to it in the Facility Agreement; and
"Transaction
Documents" has the meaning ascribed to it in the Facility
Agreement.
|
(B)
|
Miscellaneous
:
|
|
(i)
|
References
to the "Debenture" include references to any deed or other document
executed in order to perfect the security hereby constituted or in
pursuance of any of the provisions
contained or incorporated herein.
|
|
(ii)
|
Any
reference to a “Receiver” includes a reference to a "Receiver and Manager”
or "Manager”;
|
|
(iii)
|
Words
importing the singular number
include the plural number and vice versa, and words importing a
particular gender include any other gender.
|
|
(iv)
|
|
(v)
|
The
headings to the Clauses hereof shall not be deemed to be a part thereof or
be taken in consideration in the interpretation or construction thereof or
of this Debenture;
|
|
(vi)
|
References
herein to Clauses, Schedules and Appendices are references to Clauses,
Schedules and Appendices of this
Debenture:
|
|
(vii)
|
References
to documents include amendments, modification, variations, replacements
and supplements thereto;
|
|
(viii)
|
References
to statutes and other legislation include re-enactments and amendments
thereof and include any subordinate legislation made under any such
statute;
|
|
(ix)
|
References
to a party include its permitted assigns and transferees and
its successors in title; and
|
|
(x)
|
References
to a ''person" includes any individual, company, corporation, firm
partnership, joint venture, association, organization, trust, state or
agency of a state (in each case, whether or not having separate legal
personality).
|
Page 2 of
23
|
2.
|
FACILITY
|
|
(A)
|
Subjectto
the provisions of the Transaction Documents, the Lender hereby agrees to
make available the Chargor the Facility in accordance with the terms of
the Facility Agreement.
|
|
(B)
|
The
Chargor hereby covenants and undertakes that it will duly pay to the
Lender the Total Indebtedness.
|
|
3.
|
CHARGE
|
|
(A)
|
Floating Charge
: The Chargor as beneficial owner, and as a continuing security for the
payment and discharge of the Total Indebtedness and for the observance and
performance by the Chargor of all its
obligations to the Lender under or in connection with the Facility,
hereby charges and agrees to charge in favour of the Lender by way of
FIRST FLOATING CHARGE the whole of the Chargor's undertaking and all its
property and assets whatsoever and wheresoever present and future
including all its present and future estate, right, title and interest in
and to all benefits accrued and to accrue to the
Chargor in relation to its Receivables and cash at bank and all other book
and other debts and monetary claims now or at any time hereafter due or
owing (including without limitation, things in action which may give rise
to any debt, revenue or claim) to the Chargor in connection with or in
relation to its Receivables together with the full benefit of all
guarantees and securities therefor and indemnities in respect thereof and
all Liens, reservations of title, rights of tracing and other rights and
remedies enabling the Chargor to enforce or obtain the Receivables or such
cash at bank
or any such debts or claims, or any crystallization of the flouting charge
hereby create whatsoever and wheresoever present (the undertaking,
property, assets and rights comprised within the floating charge created
by this clause hereinafter called the "Charged
Property").
|
PROVIDED
ALWAYS THAT from the date hereof the Chargor is not to be at liberty to and
shall not create any assignment, mortgage or charge upon and so that no Lien
shall in any case or in any manner arise on or affect any pan of the Charged
Property either in priority to or part pari passu or ranking after
the charges hereby created and further that the Chargor shall have no power
without the prior consent of the Lender (such consent not to be unreasonably
withheld) in writing to:
|
(a)
|
(save
in favour of the Lender) create, extend or permit to subsist any mortgage
or other fixed security. floating charge, pledge, hypothecation or Lien
(other than a lien, arising in the ordinary course of business by
operation of law) or other security interest of any kind, whether in any
such case ranking in priority to or pari passu with or
after the floating charge created by the Charger under the preceding
provisions of this Clause 3(A).
and/or
|
|
(b)
|
(save
in the ordinary course of business) sell, transfer, assign or part with in
any way or otherwise dispose of, whether by means of one or a number of
transactions refuted or not and whether at one time or over a period of
time, the whole or any part of the Charged Property, or enter into an
agreement (other than an agreement conditional upon such consent or
agreement of the Lender being obtained) for any such sale, transfer,
assignment or other disposal.
|
|
(B)
|
Continuing
Obligations: Notwithstanding anything in this Debenture to the
contrary, all obligations of the Chargor in respect of the Charged
Property shall continue to be the obligations of and shall be promptly and
duty performed and complied with by the
Chargor.
|
Page 3 of
23
|
(C)
|
Rights and
Privileges : The Charged Property shall be charged in favour of the
Lender together with all rights and privileges connected
therewith.
|
|
4.
|
POSITION OF OTHER
SECURITY
|
|
(A)
|
Debenture Not to
Prejudice other Securities: This Debenture is in addition and
without prejudice to nor shall it affect any other charge, mortgage, lien,
collateral, security or other instruments or letters of set-off which the
Lender may now or hereafter hold from limit to time from or on account of
the Chargor nor shall such collateral or other security or any Lien to
which the Lender may otherwise be entitled (including any security, charge
or Lien prior to the date of this Debenture) or the liability of any
person or persons not parties hereto for all or any part of the Total
Indebtedness be in any way prejudiced or affected by this Debenture. The
Lender shall have full powers and absolute discretion to deal with,
exchange, release, omit, modify, omit, neglect or abstain from perfecting
or enforcing any such collateral or other securities or other guarantees
or rights which the Lender may now or hereunder have from or against such
person or persons or to give time for payment or any indulgence to any
such other person or persons without discharging or in any way affecting
the Chargor's liabilities or the Total Indebtedness or the security
created hereunder. All moneys received by the Lender from the Charger or
any person or persons liable to pay the same may be applied by the Lender
to any account or item of account or any transactions to which the same
may be applicable.
|
|
(B)
|
Other Securities not
to Prejudice Debenture : Nothing contained in any other charge,
mortgage, lien or security which the Lender holds or may at any time hold
from the Chargor alone or jointly with any other person on arts account
whatsoever anywhere whether in or outside Singapore shall prejudice or
affect this Debenture.
|
|
5.
|
CONTINUING
SECURITY
|
|
(A)
|
No Discharge by Part
Payment : This security shall not be considered as satisfied by any
intermediate payment or satisfaction of the whole or any part of the Total
Indebtedness but shall constitute and be a continuing security to the
Lender and extend to cover all or any of the Total
Indebtedness.
|
|
(B)
|
Avoidance of Security :
No assurance, security or payment which may be avoided under the Companies
Act, Chapter 50 Singapore or under any other provision or enactment of any
jurisdiction relating to bankruptcy, winding up, insolvency or any
analogous proceedings and no release, settlement, discharge or arrangement
which may has been given or made on the faith of any such assurance,
security or payment shall prejudice or affect the right of the Lender to
enforce the security provided hereunder to the full extent or to recover
from the Chargor to the full extent as provides, for hereunder as if such
payment, release, settlement,
discharge or arrangement (as the case may bet had never been granted,
given or made: and any such release, settlement, discharge or arrangement
shall (as between the Lender and the Chargor) be deemed to have been
granted, given or made upon the express condition that it shall be wholly
void and of no effect if the pay merit
on the faith of which it was granted, given or made shall at any time
thereafter be void under any such provision as referred to above so that
thereafter the Lender shall be entitled to exercise all their rights
hereunder against the Charger as if such release, settlement, discharge or
arrangement had never been granted, given or made. If in
the Lender's reasonable opinion there is a possibility that any such
payment, release, settlement, discharge or arrangement may be void or
avoided, the Lender shall be at liberty at its absolute discretion to
retain the security so created as security for the Total Indebtedness for
a period of six months after the Total Indebtedness have been paid
in
|
|
(C)
|
Security to Continue
to be Valid and Binding : This security shall continue to be valid
and binding for all purposes notwithstanding:
|
|
(i)
|
any
change by amalgamation, consolidation, reconstruction, merger,
reorganisation or otherwise which may be made in the constitution of the
company by which the business of the Lender may for the time being be
carried on and shall be available to the company carrying on the business
of the Lender for the time being;
or
|
Page 4 of
23
|
(ii)
|
the
insolvency, liquidation or winding-up of the Chargor (as the case may be)
or any commencement of any of the foregoing;
or
|
|
(iii)
|
any
change in constitution, amalgamation, consolidation, reconstruction,
merger or reorganisation or or affecting the Chargor (as the case may be):
or
|
|
(iv)
|
the
illegality, invalidity or unenforeeability of or any defect in any
provision of any of the Transaction Documents, the Facility or any other
security, guarantee or indemnity or any of the obligations of any of the
parties thereunder: or
|
|
(v)
|
any
other matter or thing whatsoever.
|
|
6.
|
COVENANTS AND
UNDERTAKINGS
|
|
(A)
|
Affirmative
Undertakings: The Chargor hereby covenants and undertakes with the
Lender that at all times during the continuance of the Transition
Documents and until the full and final discharge of all the Total
Indebtedness, the Chargor
shall:
|
|
(i)
|
Punctual
Payment punctually pay all amounts due owing or remaining unpaid
under the Transaction Documents on the due dates thereof and in
accordance. With the provisions of the Transaction Documents: and the
Chargor shall also duly observe, perform and comply with all the terms,
conditions, obligations, undertakings, stipulations and covenants to be
observed and performed and complied with by it in accordance with the
Transaction Document or any other documents called for by the terms of the
Transaction Documents:
|
|
(ii)
|
Payments: duly and
punctually pay and discharge all rents rates assessments taxes and
governmental charges and all outgoings and all charges payable in
respect of its assets as soon as the same become due and in any event
prior to the date on which penalties become attached thereto, unless and
to the extent only that the same shall be contested in good faith and by
appropriate proceedings and will produce to the Lender on demand all
receipts for such payments and in default of payment or production as
aforesaid it shall be lawful (but not obligatory) for the Lender to pay
all or any of such rents rates assessments taxes and other outgoings and
charges on behalf of the Chargor and thereupon the sums so paid by the
Lender shall on demand be repaid to the Lender, and the Chargor will also
make timely filings of all tax returns and got governmental reports
required to be filed or submitted under any applicable laws or
regulations:
|
|
(iii)
|
Authorisations: maintain in full
force and effect all governmental consents, licences,
authorizations, approvals,
declarations, filings and registrations obtained or made in connection
with the Transaction Documents and every. document the execution and
delivery of which is contemplated hereby (including without limitation
foreign exchange and transfer permits regarding amounts due hereunder and
thereunder) and take all such additional action as may be proper or
advisable in connection therewith, and obtain or effect any new or
additional governmental consents,
licences,
authorizations, approvals, declarations, filings or
registrations as may become necessary for the performance of any of the
terms and conditions of the Transaction
Documents:
|
|
(iv)
|
Adverse
Change: promptly notify the
Lender of any material adverse event or material change in its
condition (financial or otherwise) and of any litigation, arbitration
or administrative proceedings being threatened or initiated against it
which is likely to affect materially and adversely its operations or
financial condition, all such
notification to be given to the Lender promptly upon the Chargor becoming
aware of the said change or of the said litigation, arbitration
or proceedings or threat thereof and the amount
of contingent liability, if such
amount is ascertainable:
|
Page 5 of
23
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(v)
|
Notification:
promptly inform the Lender of any Event of Default or any event or the
receipt of any notice which may affect the the fulfilment by the Chargor
of any of its covenants or obligations hereunder, or may affect its
ability to carry on its businesses or any
application made or an order for the
Chargor to be placed under judicial management or for the appointment of a
judicial
manager upon occurrence thereof;
|
|
(vi)
|
Subordination:
ensure that all shareholders' and/or directors' loans or advances save and
except for bonds issued by the Chargor to their shareholders (including
interest payment relating thereto). whether now or hereafter owing from
time to time by the Chargor to any shareholder or
director including all such shareholders' and/or directors' loans or
advances owing prior to the date or this Debenture shall henceforth at
all times be
subordinated to the Facility hereof and will procure all of its
shareholders and/or directors which have granted such loans or advances to
the Chargor to agree to subordinate their loans to the Facility
hereof and
to execute such deed of subordination in form and substance satisfactory
to the Lender in favour of the Lender if the Lender so requires..
|
|
(vii)
|
Insurance: at
its own expense, effect and maintain or cause to be effected and
maintained insurance over all its assets and property charged or to be
charged to the Lender in connection with the Facility with reputable
insurer(s). All policies and all endorsements, supplements or amendments
thereto shall at the Lender's request be delivered to the Lender with the
receipt for every premium payable in respect thereof seven (7) days prior
to the expiry of such policies and in default of such delivery or
production it shall he lawful
(but not obligatory)
for the Lender to renew and or effect the insurance aforesaid in such sum
as the Lender shall think fit at the Chargors
expense:
|
|
(viii)
|
Further Acts:
from time to time on reasonable 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 consider necessary or desirable for
giving full effect to this Debenture and/or secure
to the Lender the full benefits of all rights, powers and remedies
conferred upon the Lender by this
Debenture.
|
|
(B)
|
Negative
Undertakings:
The Chargor undertakes
that at all times during the continuance of the Transaction Documents and
until the full and final discharge of all the Total Indebtedness it shall
not, save and except with the prior given consent of the Lender,
such consent not to be unreasonably
withheld:
|
|
(i)
|
undertake
or permit or effect any re-organisation, amalgamation, reconstruction, or
any other schemes of compromise or arrangement or otherwise affecting its
present constitution:
|
|
(ii)
|
create
or permit to arise or subsist or have outstanding any mortgage, charge
(whether fixed or floating), pledge, hypothecation, lien (other than a
lien arising by operation of law) or any other encumbrance or security
whatsoever on or over the whole or any part of its properties or
assets, both present and future whatsoever and wheresoever situate
(including without limitation any factoring of the Charger's
Receivables);
|
|
(iii)
|
permit
or suffer any substantial
change in the shareholding of the
Chargor:
|
Page 6 of
23
|
(iv)
|
lease,
let out, sublet or otherwise part with possession of any of the properties
charged to theLender under the
Transaction Documents;
|
|
(v)
|
make
substantial alteration to the nature of its business or effect any
alteration of the Chargor'sMemorandum and
Articles of Association relating to its borrowing powers or principal
business;
|
|
(vi)
|
declare
make or pay any dividend or other distribution (in cash or in kind) in
respect of any of itsshare capital in, or
in respect of, any financial year
or period; and
|
|
(vii)
|
place
the Lender in a less favourable position in relation to other lenders,
whether banks or otherfinancial
institutions, in terms of security or
support.
|
|
7.
|
EVENTS OF
DEFAULT
|
The Total
Indebtedness (whether subject to any specific agreement or otherwise) shall at
the option of the Lender (without giving prior notice) become immediately due
and payable upon the occurrence or declaration by the Lender of any of the
following events:
|
(i)
|
Non-payment:
the Chargor fails to punctually pay the Total Indebtedness at such time
and date as
provided in the
Transaction Documents: or
|
|
(ii)
|
Breach
of
warranty: any
representation, warranty. covenant or statement made by the Chargor in
any Transaction Document or in any document delivered under it now
or at any later date is not complied with or is incorrect, misleading or
untrue or ceases to be correct, accurate or
true in any material respect; or
|
|
(iii)
|
Breach of obligation
or undertaking: the Chargor commits or threatens to commit any breach of
or fails to observe am of the obligations accepted or undertakings
given by its execution and delivery of the Transaction Documents to which
it is a party or any other document called for by the terms of the Transaction
Documents or commits any breach of or fails to observe any of its
obligations or undertakings under the Transaction Documents to which it is
a party or in the reasonable judgment of the Lender threatens or is likely
to commit any breach of or threatens or is likely not to observe any of
the obligations or undertakings of the Chargor under the Transaction
Documents and in the case of such breach or failure which in the
reasonable opinion of the Lender is capable of being remedied, the Chargor
fails to remedy such breach or failure to the satisfaction of the
Lender within 30 days of
its occurrence; or
|
|
(iv)
|
Insolvency: the Chargor becomes
insolvent, is unable to pay its debts as they fall due, stops,
suspends or in the reasonable judgment of the Lender, threatens
to stop or suspend its business or payment of its debts, begins
negotiations or takes any proceedings or other step with a view to
re-adjustment, rescheduling or deferral of its indebtedness or proposes or
makes a general assignment or any statutory or other arrangement or
composition with or for the benefit of its creditors or a moratorium is
agreed or declared in respect of or affecting the indebtedness of the
Chargor, or
|
|
(v)
|
Enforcement
proceedings: a distress, writ of seizure and
sale, attachment, encumbrance, execution
or other legal process is levied, enforced or sued over on or against the
assets of the Charger:
or
|
|
(vi)
|
Security
enforceable: any present or future security on or offer the assets
of the Chargor becomes nforceable
and any step (including the taking of
possession or the appointment of a Receiver or similar officer) is taken
to enforce that security;
or
|
Page 7 of
23
|
(vii)
|
Dissolution : any step is taken
by any person for the dissolution (including judicial management)
of the Chargor (including if a petition is presented, an order is
made or a notice is given for the passing of a resolution for such
dissolution (including judicial management), except for the purpose of and
followed by a reconstruction,
amalgamation or reorganisation on terms approved by the Lender before that
step is taken); or for the appointment of a liquidator (including a
provisional liquidator), Receiver, judicial manager,
trustee, assignee,
administrator, agent or
similar officer of the Chargor over any part of the assets of the Chargor:
or
|
|
(viii)
|
Change in
ownership: any change occurs in the management, ownership or
control of the Charger or a significant portion of its assets, which in
the reasonable opinion of the Lender constitutes a material adverse change
affecting the financial condition or operations of the Chargor:
or
|
|
(ix)
|
Authorisation and
consents: any governmental registration, consent, licence,
authorisation, approval,
act, condition or thing required in connection with the Transaction
Documents (including without limitation required to ensure that the
Transaction Document,:
are legal, valid and binding on the Charger and any other party thereto,
and admissible in evidence in the courts of Singapore), or any other
document, the execution and delivery of which is contemplated therein,
expires, is not done, complied with or obtained or is terminated, revoked,
modified or restricted in any way unacceptable to the Lender, or any
certificate or opinion furnished under any Transaction Document is shown
to have been false or misleading as of its date in any material respect;
or
|
|
(x)
|
Illegality: it
is or will become unlawful for the Chargor or any party to the Transaction
Documents to perform or comply with any one or more of its respective
obligations under the Transaction Documents:
or
|
|
(xi)
|
Accounts: the
audited accounts of the Chargor delivered to the Lender under paragraph
1.7 of Schedule
2 to the Facility Agreement are qualified in a manner or to an extent
unacceptable to the Lender; or
|
|
(xii)
|
Transaction
Decrement: any Transaction Document is not in full force and
effect: or
|
|
(xiii)
|
Legal
Proceedings: any suit or action of any
kind whatsoever (whether criminal or civil) shall be instituted or
threatened against the Chargor which may have a material adverse effect on
the financial condition or business of the Chargor,
or
|
|
(xiv)
|
Analogous
events: any event occurs which under the law of any relevant
jurisdiction, has an analogous
or equivalent effect to any of the events mentioned in this Clause 7;
or
|
|
(xv)
|
Compulsatory
Acquisition: any notice or
proposal for compulsory acquisition of any property or assets
issued or made which in
the reasonable
opinion of the Lender has or may have a material adverse effect on the
Chargor, or
|
|
(xvi)
|
Materiel
adverse change: any event occurs or circumstance arises which, in the
reasonableopinion
of the Lender, gives grounds for believing that the Chargor or any party
to the Transaction Documents will or may not for may be unable to perform
or comply with any one or more of their respective obligations under the
Transaction Documents or any other documents called for by the Transaction
Documents or is otherwise in jeopardy and notice thereof is given to the
Chargor.
|
|
8.
|
POWERS OF THE LENDER
ON DEFAULT RV THE CHARGOR
|
|
(A)
|
Powers :
Subject to the proviso in 8031 below, if any Event of Default shall have
occurred or is declared, the
Lender shall be entitled to, inter alia,
exercise all or any of the following powers, that is to
say:
|
Page 8 of
23
|
(i)
|
Payment of Total
Indebtedness: the Lender may by prior written notice of 5 Business
Days to the Chargor declare the Total Indebtedness hereunder to be
immediately due and payable, whereupon the some shall, notwithstanding any
other provision of this Debenture, become so payable together with accrued
interest thereon (including without limitation any
default interest) and any other sums then owed by the Chargor or hereunder
without further demand, presentment, protest or other notice whosoever,
and without the consent, decree or authorisation of any court, all of
which are hereby expressly waived by the
Chargor.
|
|
(ii)
|
Cancellation of
undisbursed Facilit : the Lender may by written notice to the
Chargor, declare
that any undisbursed portion of the Facility shall be cancelled, whereupon
the same shall be cancelled notwithstanding
any subsequent action by the Charger to remedy any of the Events of
Default, and, or
|
|
(iii)
|
Give notice and xxx for
recovery: the Lender may from time to time at its discretion be at
liberty to give any notice which may be deemed necessary by the Lender to
any person or persons owing moneys to the Charger that all such moneys be
paid to the Lender and the Chargor hereby irrevocably appoints the Lender
to be its attorney in fact to demand xxx for recover and take all
appropriate legal proceedings to recover such moneys and to give a good
receipt for the same and to give such notices to the debtors of the
Chargor and to take all necessary steps to complete the assignment of such
moneys to the Lender.
|
|
(B)
|
Provided
that no Event of Default under Clause 7 will occur if the failure to
comply or breach is capable of remedy and is remedied within five (5)
Business Days of the Lender giving notice to the Chargor of the failure to
comply or breach. Such notice shall include reasonable details of the non
compliance or breach.
|
|
(C)
|
Exercisable at Lenders
Discretion: All or any of the rights, powers or remedies conferred
by this Debenture shall be exercisable by the Lender at its discretion, or
at any time and from time to time and in any order as may be determined by
the Lender.
|
|
u
|
REPRESENTATIONS AND
WARRANTIES
|
The
Charger hereby represents and warrants to the Lender as follows:
|
(i)
|
Status: the
Chargor is a company with
limited liability and was duly incorporated in the Republic of Singapore
and is validly existing under the laws of the Republic of Singapore with
the power and authority to own assets and to conduct the business which it
conducts and/or purports to
conduct;
|
|
(ii)
|
Powers and authorisation:
the Chargor has full power and authority to carry on the business
currently carried on by it, to borrow monies and to enter into, exercise
its rights and perform its obligations under the Transaction
Documents;
|
|
(iii)
|
Valid and binding
obligations: the Transaction Documents have been validly authorised
by the appropriate corporate actions of the Chargor and when executed and
delivered will constitute legal valid and binding obligations of the
Chargor and are enforceable against the Chargor in accordance with their
respective terms;
|
|
(iv)
|
Requirements
fulfilled: all actions, conditions and things required to be taken,
fulfilled and done
(including without limitation the obtaining of any necessary consents and
the like except for stamp duty on the Transaction Documents (where
applicable and any filings in relation thereto which will be
done within the time agreed between the Lender and the Chargor
and in accordance with the requirements of.
the law in order (i) to enable the Chargor lawfully to enter into,
exercise its rights and perform and comply with its obligations under the
Transaction Documents, (ii) to ensure that the said obligations are
legally binding andenforceable, and (iii) to make the Transaction
Documents admissible as evidence in the courts of Singapore have been
taken, fulfilled and done;
|
|
(v)
|
No material adverse
effect: the Chargor has not committed, under any agreement to which
it is a party or by which it is bound, a default which might have a
material adverse effect on the business, assets or financial condition of
the Charger:
|
Page 9 of
23
|
(vi)
|
No
litigation: save as disclosed
by the Chargor to the Lender prior to the execution of this
Debenture, there are
no litigation, arbitration
or administrative proceedings current or pending before any court or to
the knowledge; of the Chargor threatened against or affecting the Charger
and no proceedings are before any court,
tribunal, government
agency or administrative body pending or to the knowledge of the Chargor
threatened against it which if adversely determined would materially and
adversely affect the financial condition or operations of the Charter or
impair the rights of the Chargor to carry on its business substantially as
now conducted or the ability of the Chargor to observe and perform its
obligations under the Transaction Documents, and to the
best of the knowledge and belief of the Chargor, the Chargor has complied
with all applicable laws statutes and regulations and with the requirements of
all government authorities having jurisdiction over the Chargor;
|
|
(vii)
|
No dissolution:
no legal procedure has been started nor have any legal proceedings been
initiated or,
to the best of the Chargor's knowledge and belief, threatened, for the
dissolution, winding-up or reorganisation of, or for the appointment of a
receiver, manager (including a judicial manager appointed under Part VIIIA
of the Companies Act),
trustee or similar officer of the Chargor or of any or all of its
assets;
|
|
(viii)
|
Taxes: the Chargor has
filed all tax returns which it is required by law to file and has paid and
discharged
all taxes, assessments, fees and other governmental charges (other than
payroll taxes in the aggregate sum of $$113,353.00) assessed against it or
upon any of its assets or adequate reserves have been established for the
payment thereof Provided that this sub-Clause shall apply only to tax
returns or payments (described as aforesaid) where the failure in file
such tax returns and/or make such payments might, in the reasonable
opinion of the Lender, have a material and adverse effect on the business
or financial condition of the
Charger:
|
|
(ix)
|
No
Default: the Chargor is not in default in the payment or performance of
any of its obligationsfor
borrowed money and no Event of Default has occurred or is continuing or is
anticipated;
|
|
(x)
|
Compliance: neither the
execution and delivery of the Transaction Documents nor the performance
of any of the terms thereof will:
|
|
(a)
|
contravenee
or constitute a default under any provision contained in any
agreement.Instrument,
law, judgment, order, licence, permit or consent by which the Chargor is
bound or affected: or
|
|
(b)
|
cause
any limitation on the Chargor or the powers of its directors,
whether imposed by or
contained in its Memorandum and Articles of Association or
by-laws or in any law, judgment, agreement, instrument or otherwise, to be
exceeded:
|
|
(xi)
|
No security: saw
as otherwise disclosed in the Accounting and Corporate Regulatory
Authority and
except for any security granted in favour of the Lender in relation to
this Debenture, no security exists on or over the assets of the Chargor
other than any lien arising by operation of
law:
|
Page 10
of 23
|
(xii)
|
Repetition:
each of the above representations and warranties will be correct and
complied with in all
respects so long as any sum remains to be lent or remains payable under
this Debenture as if repeated then by reference to the then existing
circumstances.
|
|
10.
|
APPOINTMENT OF
RECEIVER
|
|
(A)
|
Appointment :
At any time after (i) any of the Total Indebtedness shall have become
payable under Clause
7 hereof or (ii) the Chargor shall have requested the Lender to appoint a
Receiver hereunder, the Lender may appoint one or more persons to be a Receiver of
the Charged Property.
|
|
(B)
|
Removal : The
Lender may (i) remove any Receiver previously appointed hereunder and (ii)
appoint another
person or other persons as Receiver or Receivers, either in the place of a
Receiver so removed or who has otherwise ceased to act or to act jointly
with a Receiver or Receivers previously appointed hereunder. If at any
time and by virtue of any such appointments) any two or more persons shall
hold office as Receivers of the same assets, each one of such Receivers
shall be entitled (unless the contrary shall be stated in any of the deeds
or other instruments) appointing them to exercise all the powers and
discretion hereby conferred an Receivers individually and to the exclusion
of the other or others of them.
|
|
(C)
|
By Deed or in
Writing : Every such appointment or removal, and every delegation,
appointment or removal by the Lender in the exercise of any right to
delegate powers or to remove delegates herein contained, may be made
either by deed or by instrument in writing under the hand of any officer
of the Lender or by any person authorized in writing in that behalf by any
such officer.
|
|
11.
|
RECEIVER
|
|
(A)
|
Powers of
Receiver : A Receiver so appointed shall be the agent of the
Chargor and the Chargor shall be solely
responsible for his acts and defaults and remuneration. Such Receiver
shall have power:
|
|
(i)
|
Entry onto land
: to enter into and take possession of or control any land or premises of
the Chargor or any part thereof
or collect and get in any Charged Property and for that purpose to take
any proceedings in the name of the Chargor or otherwise as may seem
expedient:
|
|
(ii)
|
Carry on
business : to carry on, manage or concur in carrying on and
managing the business of
the Chargor or any part thereof including the power where the Chargor has
one or more subsidiaries of supervising, controlling and financing such
subsidiary or subsidiaries and its or their business or businesses and the
conduct thereof and for any of those purposes to raise or borrow any money
from the Lender or any other person
to rank for payment in priority to the security constituted by or pursuant
to this Debenture and with or without a mortgage or charge that may be
required upon the security of the whole or any part of the Charged
Property;
|
|
(iii)
|
Call on Shares
: where any capital in respect of any such capital or shares of the
Chargor is outstanding
and uncalled to require the directors of the Chargor forthwith to call up
all or so much of such uncalled capital of the Chargor and to
enforce payment of calls so made and any previous unpaid calls by taking
proceedings in the name of the Chargor or his own name or otherwise as may
seem expedient and as may be sufficient to pay to the Lender all moneys
then due and owing hereunder,
|
Page 11
of 23
|
(iv)
|
Sell or Lease
Property : forthwith and without restriction to sell, lease,
surrender or otherwise dispose of or agree in selling, leasing,
accepting surrenders or otherwise disposing (obtaining only when and
where necessary the leave of the Court) of the whole or any part of the
Charged Property and for this purpose. (0 sever. if necessary, plant,
machinery and other fixtures from the land) by public auction or by
private contract on such term and conditions as he may think fit, with
power to vary any contract for sale and to resell without being answerable
for any loss occasioned thereby; any such sale may be for cash, shares or
stocks, debenture stock or other valuable consideration to be paid or
satisfied at such time or times as the Receiver shall think
fit;
|
|
(v)
|
License
Property: to lease, let, hire and license or agree in leasing,
letting, hiring and licensing or accept surrenders of leases, tenancies or
licences of all or any part of the land and premises of the Charged
Property and assets on such terms and far such consideration as he may
deem fit;
|
|
(vi)
|
Arrangement or
compromise : to make
any arrangement or enter into any compromise which he shall think
expedient:
|
|
(vii)
|
Repair property
: to repair
and keep in repair and make and effect all or any improvements of the
Charged Property and assets and for this purpose to apply in the name or the Chargor
for such licences or approvals as may be required by any law or regulation
and to take out maintain and renew all insurances in respect of the
Charged Property and assets against loss or damage by fire or any
other risk
as he shall think fit:
|
|
(viii)
|
Employ professional
advisers : to employ, engage, appoint and terminate the services of
such managers and other employees and professional advisors or otherwise
on such terms and conditions as to remuneration or otherwise as he shall
think fit including without limitation the power to engage his own firm in
the conduct of the receivership;
|
|
(ix)
|
Acquire share
capital : to promote or otherwise acquire the share capital of any
body corporate with a view to such body corporate becoming a subsidiary of
the Charger and purchasing, leasing or otherwise acquiring an interest in
the whole or any part of the Charged Property. or
carrying on any business in succession to the Chargor or any subsidiary of
the Chargor;
|
|
(x)
|
Take
proceedings : to take or defend proceedings in the name of the
Charger including proceedings fur the compulsory winding-up of the Charger
and to submit to arbitration, negotiate, compromise, abandon and settle
any claims and proceedings concerning the Charged Property and to demand,
receive, give sales receipt for or discharge the
same:
|
|
(xi)
|
Incidental acts
: to execute and do all such acts, deeds and things as
to him or the Lender may
appear incidental or conducive to any of the powers vested in him or to be
conducive to the realisation of the security constituted by or pursuant to
this Debenture and which he /awfully may or can do as agent for the
Chargor: and
|
|
(xii)
|
General :
generally to do or cause to be done such acts or things which the Charger
may have
done in the ordinary conduct of its business for the protection as well as
for the improvement of
the Charged Property;
|
|
(B)
|
Consideration for Sale
or Disposal : In making any sale or other disposal of any of the
Charged Property in
the exercise of their respective powers (including a disposal by the
Receiver to any such subsidiary as is referred to in sub-Clause (A) above, the
Receiver or the Lender may accept, as and by way of
consideration, or such sale or other disposal, cash,
shares, loan capital or other obligations, including without limitation
consideration fluctuating according to or depend upon profit or turnover
and consideration the amount whereof is to be determined by a third party.
Any such consideration may be receivable in a lump sum or by instalments
and upon receipt by the Receiver shall ipso facto be and become charged
with the payment of the Total Indebtedness. Any contract for any such sale
or other disposal
may contain conditions excluding or restricting the personal liability of
the Receiver or the Lender.
Plane machinery and other fixtures may be severed and sold in the exercise
of their respective powers by the Receiver or the Lender separately from
the premises to which they are
attached without any consent being obtained from the
Chargor.
|
Page 12
of 23
|
12.
|
POWER OF
ATTORNEY
|
|
(A)
|
Appointment :
The Chargor hereby irrevocably appoints any and every Receiver appointed
as aforesaid and
his substitute or substitutes the attorney or
attorneys in fact of the Chargor where more than one jointly and
severally and on its behalf and as its acts and deeds to execute, sign,
seal and deliver and otherwise perfect any deed, assurance, agreement,
instrument or act which may be required or may be deemed proper for
any of
the purposes set out in the preceding Clause 11 hereof and with power for
such attorney or attorneys to appoint or remove any substitute or
substitutes.
|
|
(B)
|
Ratification :
The Chargor
hereby declares that such power of attorney has been given for
valuable onsideration
and shall be and remain irrevocable for as long as any part of the Total
Indebtedness remains unpaid or outstanding. The Chargor hereby ratifies
and confirms and agrees to ratify and confirm
whatever any such attorney appointed pursuant to paragraph (A) above shall
do or purport to do in the exercise or purported exercise of all or any of
the powers, authorities and discretions referred to in paragraph (A)
above.
|
|
13.
|
APPLICATION OF MONIES
BY RECEIVER
|
|
(A)
|
Order of
Application : All monies received by any Receiver appointed under
this Debenture shall (subject to
the rights and claims of any person having a security ranking in priority
to the security constituted by or pursuant to this Debenture)
be applied in the following order:
|
|
(i)
|
in
the payment of the costs,
charges and expenses of and incidental to the Receiver's appointment
and the payment of his
remuneration;
|
|
(ii)
|
in
the payment and discharge of any liabilities incurred by the Receiver
on the Chargor's behalf
in the exercise of any of the powers of the
Receiver;
|
|
(iii)
|
in
or towards payment of any debt or claim which are by statute payable in
preference to the Total Indebtedness but only to the extent to which such
debt or claim have such preference;
|
|
(iv)
|
in
or towards the satisfaction of all interest remaining unpaid on the Total
Indebtednessowing
to the Lender.,
|
|
(v)
|
in
or towards the satisfaction of all Total Indebtedness owing to the Lender,
and
|
|
(vi)
|
any
other fees or expenses accruing hereunder, and any surplus shall be Paid
to the Chargor or other person entitled
thereto.
|
|
(B)
|
Remuneration :
Every Receiver so appointed shall be entitled to reasonable remuneration
for his services at
a rate to be fixed by agreement between him and the Lender (or, failing
such agreement, to be fixed by the Lender) appropriate to the work and
responsibilities involved upon the basis of charging from time to time
adopted in accordance with his current practice or the current practice of
his firm.
|
|
(C)
|
Application :
Only monies actually paid by the Receiver to the Lender in satisfaction
or discharge
of theTotal Indebtedness shall be capable of being applied in satisfaction
thereof.
|
Page 13
of 23
|
(D)
|
No Liability :
Save as aforesaid the Lender shall be under no liability whatsoever to the
Receiver for his Remuneration,
costs, charges, expenses or
otherwise.
|
|
(E)
|
Exclusions :
The provisions of Sections 29(6) and (8) of the Conveying Law
of Property Act, Chapter 61.
1994 Revised Edition Singapore shall not apply to this
Debenture.
|
|
14.
|
APPOINTMENT OF
RECEIVER NOT AFFECTING OTHER
POWERS
|
The
powers of
appointment of a Receiver hereunder
shall be in addition to and not to the prejudice of any statutory and other
powers (whether of sale, receiving rents, distraining for rents or otherwise) of
the Lender or otherwise and so that such powers shall be and remain exercisable
by the Lender in respect of any of the Charged Property and of which no
appointment of a Receiver by the Lender shall from time to time be subsisting
and that notwithstanding that an appointment under the provisions hereof shall
hate subsisted and been withdrawn in respect of that
property or assets or shall be subsisting in respect of arty other Charged
Property.
|
15.
|
APPOINTMENT OF LENDER
AS ATTORNEY IN FACT
|
|
(A)
|
Appointment :
The Charger hereby irrevocably appoints the Lender and any attorney in
fact for the time being
of the
Lender its attorney in fact and in its name and on its behalf and as its
acts and deeds or otherwise to sign, seal, deliver and otherwise perfect
any such legal or other mortgages, charges, assignments, transfers or
agreements as aforesaid or without executing any such montage) any
deed, assurance,
instrument or act which may be required or may be deemed
proper or expedient for the full
exercise of all of any of the powers hereby conferred on the Lender or the
Receiver for the purposes of enforcing or realising this security..
|
|
(B)
|
Ratification :
The Charger hereby declares that such power of attorney has been given for
valuable consideration
and shall be and remain irrevocable for as long as any pan of the Total
Indebtedness remains unpaid or outstanding. The Charger hereby ratifies
and confirms and agrees to ratify and confirm whatever any such attorney
appointed pursuant to paragraph (A) above shall do or purport to do in the
exercise or purported exercise of all or any of the powers, authorities
and discretions referred to in paragraph (A)
above.
|
|
16.
|
NO ENQUIRY THIRD
PARTY
|
Any
person dealing with the Lender or any of its delegates or the Receiver appointed
hereunder shall not be bound to see or enquire whether any event has happened
upon which any of the powers contained in this Debenture are or may be
exercisable by the Lender or the Receiver or otherwise as to the propriety or
regularity of any exercise thereof or any act purporting or intended to be an
exercise thereof or whether any money remains owing upon this security or be
concerned to see whether any such delegation shall have lapsed for any reason or
been revoked.
|
17.
|
WAIVER NOT TO
PREJUDICE, RIGHTS OF THE
LENDER
|
The
Lender may from time to time and at any time waive either unconditionally or on
such terms and conditions as it may deem fit any breach by the Chargor of the
covenants, undertakings, stipulations, terms and conditions contained in the
Transaction Documents and any modification thereof but without prejudice to any
power, right and remedy for enforcement thereof, provided that:
Page 14
of 23
Page 15
of 23
|
(i)
|
no
neglect or forbearance of the Lender to require and enforce payment of any
money under any Transaction Document or the performance and observance of
any covenant, undertaking, stipulation, term and condition contained in
any Transaction Document, nor any time which may be given to the Chargor
or any
person shall in any way prejudice or affect any of the rights, powers or
remedies of the Lender at any time afterwards to act strictly in
accordance with the provisions hereof: and no
such waiver of or any breach as aforesaid shall prejudice the rights of
the Lender in respect of any other or subsequent breach of any of the
covenants, undertakings, stipulations, terms or conditions
aforesaid.
|
|
18.
|
INDULGENCE
|
|
(A)
|
Time: The liability of
the Chargor hereunder shall not be impaired or discharged by reason of any
time or other
indulgence being granted by or with the consent of the Lender to any
person who or by which may be in any way liable to pay any of the Total
Indebtedness or by reason of any arrangement being entered into or composition
accepted by the Lender modifying the operation of law or
otherwise its rights and remedies under the provisions of any Transaction
Document.
|
|
(B)
|
Abstention :
The Lender may at any time or times without discharging or in any way
affecting the security
created by or pursuant to this Debenture or any remedy in respect of such
security grant to the Chargor time or indulgence or abstain from
asserting, calling, exercising or enforcing any remedy, security,
guarantee or other rights which it may now or hereafter have from or
against the Chargor.
|
|
19.
|
RIGHTS OFTHE
LENDER
|
|
(A)
|
Set-Off : The
Chargor authorises the Lender (who shall not be obliged) to apply at any
time and without prior
notice to the Charge, any credit balance (whether or not then due) to which the Chargor
is at any time beneficially entitled to any account of the Chargor at any
office of the Lender (whether
in Singapore or elsewhere) in or towards the immediate satisfaction of any
plan of the Total Indebtedness whether matured or otherwise, whether
contingent, unliquidated or joint and whether expressed in a currency
different from the currency. on
the account of the Chargor, and unpaid. For that purpose, the Lender is
authorised to (i) withhold payment of all or any part of such credit
balance and/or (ii) use all or any part of any such credit balance to buy
such other currencies as may be necessary to effect such application. The
Lender's rights under this Clause, which shall be without prejudice and in
addition to any right of set-of combination of accounts, Lien or other
right to which it is at any time otherwise omitted (whether by operation
of law contract or otherwise).
|
|
(B)
|
Right to Debit
: If any of the Total Indebtedness shall not be paid on the due date
thereof the Lender shall be at liberty forthwith or any time thereafter to
debit the same to any account of the Chargor then current without
prejudice to the rights and remedies of the Lender against the Chargor and
any other party liable to the Lender for the same and also without
prejudice to any right of the Lender under this
Debenture.
|
|
(C)
|
Right of
Consolidation :
|
|
(i)
|
The
provisions of Section 21(1) of the Conveyancing and Law of Property Act,
Chapter 61,199-1
Revised Edition, (restricting the right of consolidation)
shall not apply to this Debenture.
|
|
(ii)
|
Without
prejudice to any equitable right of consolidation it is hereby declared
that no property of the Chargor which at the date hereof is or which at
any time hereafter shall become subject to a mortgage or charge in favour
of or vested in the Lender shall be redeemed except on payment not only of
all moneys secured thereby but also of all Total
Indebteness.
|
Page 16
of 23
|
20.
|
PAYMENT
|
|
(A)
|
Manner
of Payment: Unless otherwise provided in this Debenture
or otherwise specified by the Lender, payments to be made by the Chargor
to the Lender under this Debenture, including all repayments of principal
and payments of interest and any other sums due from the Chargor, shall be
made by wire transfer in USD to the Lender at [please provide account
details for wire transfer]or to such account or at such
other address as the Lender may designate from time to
time.
|
|
(B)
|
Non-Business
Day: Any payment to be made by the Chargor on a day which would
otherwise be due on a
non-Business Day shall instead be made on the next Business Day in the
same calendar month (if there is one) or the preceding Business Day or
there is none), and all calculations of interest shall be adjusted
accordingly.
|
|
(C)
|
Free
and Clear
Payments: Clause 10 of the Facility Agreement shall
apply.
|
|
(D)
|
Payments to be in Gross
All moneys received by the Lender from the Chargor or from any other
person or
state or party capable of being applied in reduction of the Total
Indebtedness shall be regarded for all purposes as payments in gross and
if the Chargor or any petrson
or party shall become bankrupt or insolvent or be wound up (either by order of court
or by an effective resolution for winding up)the Lender may prove against
the Charger or any such other person or party for the whole of the moneys
then owing and no money received under such proof shall be considered as
received in respect of this Debenture but the full amount of the Total
Indebtedness shall be pay able until the Lender have received from all
sources one hundred cents in the dollar and if the amount ultimately
received by the Lender shall exceed the amount of the ultimate balance
owing to the Lender the excess only over such ultimate balance shall be
repaid to the person or party on whose account the same shall have been
received by the Lender.
|
|
21.
|
REMEDIES AND
WAIVERS
|
Neither
the failure to exercise nor any delay in exercising on the part of the Lender
any right or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right or remedy prevent any further or other
exercise thereof or the exercise of any other right or remedy.
|
22.
|
INDEMNITY
|
|
(A)
|
Indemnity : The Chargor
acknowledges that the Facility is granted and extended by the Lender on
the terms and conditions of the Transaction Documents and the security
created therein. In connection therewith and without prejudice to any of
the provisions herein, the Chargor shall keep the Lender fully and
effectively indemnified from and against all actions, losses, claims,
proceedings, costs, demands or liabilities which may he suffered or
incurred by the Lender under or by virtue of the Charged Property, this
Debenture and/or by virtue of the lender granting to the Charger any part
of the Facility.
|
|
(13)
|
Tax indemnity :
Without prejudice to the provisions of any Transaction Document, if the
Lender is required
by law to make any payment, whether on account of tax (not being a payment
of tax of tax on its overall net income) or otherwise, on or calculated by
reference to any sum received or receivable by it under any Transaction
Document or any liability in respect of any such payment is asserted
imposed, levied or assessed against the Lender as a consequence
of any credit deduction or refund obtained by the Lender in respect of
interest paid under any Transaction Document being disallowed, the Chargor
will on demand pay to that
Lender free and clear of all withholdings and deductions en amount
sufficient to indemnify it against
such payment or liability, together with any interest penalty and expense
payable
or
incurred in
connection therewith.
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Page 17
of 23
|
(C)
|
Currency
Indemnity : In respect
of any sum payable by the
Chargor under or in connection
with any Transaction Instrument and any damages in relation thereto. USD
(the “Currency of Account") shall be the sole currency of account and
payment.
|
|
(ii)
|
Any
amount received or recovered in a currency other than the Currency of
Account (whether as a result of, or of the enforcement of a judgment or
order of court of any jurisdiction, in the dissolution of the Chargor or
otherwise) by the Lender in respect of any sum expressed to be due to it
from the Chargor under arty Transaction
Document shall only constitute a discharge to the Chargor to the extent of
the amount of the Currency of Account which the recipient is able, in
accordance with its usual practice, to purchase with the amount so
received or recovered in that currency on the date of that receipt or
recover; tor,
if it is not practicable to make that purchase on that date, on the first
date on which it is practicable to do
50).
|
|
(ii)
|
If
that amount in the Currency of Account is less than the amount of the
Currency ofAccount
expressed to be due to the
recipient under any Transaction Document, the Charger shall indemnify it
against any loss sustained by it as a result. In any event, the Chargor shall
indemnify the recipient against the cost of making any such
purchase.
|
|
(D)
|
Indemnities Separate
and Independent : Each of the indemnities in this Debenture
constitutes a separate and
independent obligation from the other obligations in this Debenture, shall
give rise to a separate and independent cause of action, shall apply
irrespective of any indulgence strained by any Lender and shall continue
in full force and effect despite any judgment, order, claim or proof for a
liquidated amount in respect of any sum due under this Debenture or
any judgment or order. No proof or evidence of any actual loss may be
required.
|
|
23.
|
CALCULATIONS
|
|
(A)
|
Basis of
Calculation: All interest and fees shall accrue from day to day and
shall be calculated on the basis of a year of 365 days and the actual
number of days elapsed.
|
|
24.
|
ASSIGNMENT
|
|
(A)
|
Benefit and Burden of
this Debenture: This Debenture shall benefit and be binding on the
parties, their respective
successors and any permitted assignee or transferee of some or all of a
party's rights or obligations under this Debenture. Any references in this
Debenture to any party shall be construed
accordingly.
|
|
(B)
|
Chargor: The
Chargor may not assign or transfer all or any part of its
rights or obligations under this Debenture.
|
|
(C)
|
Lender:
|
|
(i)
|
The
Lender may assign or transfer all or any part of its tights and/or
obligations under this Debenture without the consent of the Chargor. Any
such assignment or transfer shall alter such assignment or transfer be
notified in writing by the Lender to the
Chargor.
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Page 18
of 23
|
(ii)
|
Any
such assignee or transferee shall be and be treated as a Lender for all
purposes of eachTransaction
Document and shall be entitled to the full benefit of each Transaction
Document to the same extent as if it were an original party in respect of
the rights and obligations assigned or transferred to
it.
|
|
25.
|
.NOTICES AND
DISCLOSURE
|
|
(A)
|
Any
notice or other communication given under this Debenture shall be in
writing and shall be servedby
delivering it personally or sending it by registered post or by registered
air mail (if posted to a country other than where the serving Party is
located) or courier or facsimile
transmission to the address or electronic
transmission to the answerback address and for the attention of the
relevant party. Any such notice shall be deemed to have been
received.
|
|
a)
|
if
delivered personally, at the time of
delivery;
|
|
b)
|
in
the case of registered post or by courier. 48 hours from the date of
posting or dispatch ;
|
|
c)
|
in
the case of registered airmail, 5 days from the date of posting;
and
|
|
d)
|
in
the ease of facsimile or electronic transmission; at the time of
transmission
|
Provided
that if deemed receipt occurs before 9 am on a Business Day the notice shall be
deemed to have been received at 9 am on that day, and if receipt occurs after 5
pm on a Business Day, or on a day which is not a Business Day, the notice shall
be deemed to have been received at 9 am on the non Business Day.
|
(B)
|
Addresses
and fax numbers of the parties are:
|
|
(a)
|
In
the ease of the Lender:
|
|
(i)
|
Attn: Mohan
Xxx Xxxxxxx
Address: 19. Xxxxxx
Xxxx #00-00, Xxx Xxx Xxxxxxxx
Xxxxxxxxx 000000
Fax
x00 0000 0000
Email:
xxxxxXxxxxxxxxxxxxxxxxx.xxx
|
|
|
and |
|
(ii)
|
Attn:
Xxxxx Xxxxxxx
Address: Wind
Fields
00000 Xxxxxxxxxxxxx Xxxxxxxx
Xxxxxxxxxx XX 00000
Fax:
000 000 0000
Email.
xxxxxxxxxxx@xxx.xxx
|
|
b)
|
In
the case or the Chargor:
|
|
(i)
|
Attn: Xxxxxxx
Xxxxxxxx
Address: 000 Xxx Xxxx Xxxx #0-00,
Xxxxxxxxx
000000
Fax:
x00 0000 0000
Email:
xxxxxxxxx@xxxxxxxxxxxx.xxx
|
or such
other address or facsimile number as may be notified in writing from time to
time by the relevant puny to the other party.
Page 19
of 23
Page 20
of 23
|
(C)
|
Each
party may change its address from time to time, provided notice of such
change of address is provided
to the other party in accordance with this
Clause.
|
|
(D)
|
Certification:
Any document to be delivered to the Lender under the Transaction Documents
shall be signed
or certified by a director or authorised signatory) of the
Chargor.
|
|
26.
|
PARTIAL
INVALIDITY
|
The
illegality, invalidity or unenforceability of any provision of this Debenture
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.
|
27.
|
COUNTERPARTS
|
This
Debenture may be signed in any number of counterparts, all of which taken
together when delivered to the Lender shall constitute one and the same
instrument. Any party may enter into this Debenture by signing any such
counterpart.
|
28.
|
.GOVERNING LAW AND
JURISDICTION
|
|
(A)
|
Govening Law :
This Debenture shall be governed by and construed in accordance with the
laws of Singapore.
|
|
(B)
|
Jurisdiction
:
|
|
(i)
|
The
courts in Singapore have non-exclusive jurisdiction to settle any dispute
arising out of or in connection with this Debenture including disputes
regarding the existence, validity or termination or this Debenture,
(“Dispute”);
|
|
(ii)
|
The
parties agree that the courts of Singapore are the most appropriate and
convenient courts to settle
any Disputes and accordingly no party will argue to the
contrary.
|
(This
space is intentionally left blank)
Page 21
of 23
IN WITNESS WHEREOF
the Chargor has caused its C.ommon Seal to be hereunto affixed and the
authorised representavtive of the Lender has set his hand, the day and year
first abone written.
THE
CHARGOR
the
Common Seal of
ASTRATA
(ASIA PACIFIC) PTE LTD
was
hereunto affixed in
the
presence of:
____________________________DIRECTOR
__________________________SECRETARY
THE LENDER
Signed by
XXXXX X. XXXXXXX, Director
for and
on behalf of
FAME
TRADING LTD. the presence of:
Tavil
Selvi Kvishnaroy
Xxxxxxx
Advocates and Solicitors
Page 22 of 23
