Loan Agreement
EXHIBIT 10.18
050907
| (Translation) | stamp duty paid. -signature + seal- 6 June 2005 |
TMB Bank Public Company Limited
| [ ] Head office | ||||||||||
| [/] Simummuang Market- | ||||||||||
| Rangsit Branch |
| Agreement No. |
Date: June 6, 2005
We, Fabrinet Co., Ltd., with office located at Xx. 000 Xxx 0, Xxxxxxxxxx Xxxxxxx Xxxx, Xxxxxx Xxxxx, Amphur Lamlukka, Pathumthani province, registration No. 1158/2542 and/or
We, FABRINET, with office located at Xxxxxx House, 87 Xxxx Street, Grand Cayman, Cayman Islands, British West Indies, hereinafter referred to as the “Borrower”, hereby enter into this Agreement with TMB Bank Public Company Limited, hereinafter referred to as the “Lender”, as follows:
1. Definitions
“SIBOR” means the interest rate per annum offered for loans in US$ for the period equal to the interest period, printed or reported by Reuter through Reuters Screen that displays the SIBOR, or by other equivalent service (the “Screen”) at 11.00 a.m. (Singapore time) of 2 business days immediately preceding the commencement date of the relevant interest period, provided that
| (a) | Where there are more than 2 said interest rates on the Screen, the rate per annum determined by the Bank as the maximum rate offered for loans in US$ in the interbank market in Singapore for the period equal to such interest period at 11.00 a.m. (Singapore time) on the said date shall be charged, or |
| (b) | Where it is unable to determine the said offered interest rate from the Screen, the average of the interest rates offered for lending in US$ in the interbank market in Singapore for the period equal to such interest period at 11.00 a.m. (Singapore time) on the said date of the Development Bank of Singapore, Citibank, N.A. and Bank of Tokyo-Mitsubishi, Singapore branch, obtained by any means by the Bank from the said three banks shall be charged. |
“MLR (Minimum Loan Rate)” means the interest rate charged by the Lender to its prime major customers obtaining term loans, which, at the time of execution hereof, is announced by the Lender at the rate of 6.00% per annum.
Page 1
“Default rate” means the maximum interest rate announced and charged by the Lender to a defaulting or breaching debtor, which, at the time of execution hereof, is announced by the Lender at the rate of 13.00% per annum.
“Margin” means the margin used by the Lender to add to or subtract from the interest rate charged hereunder.
2. The Borrower agrees to borrow from the Lender in the amount of US$ 8,000,000 (eight million), and the Borrower has received the loan from the Lender properly and completely on the date hereof.
3. Interest rate
The Borrower agrees to pay interest on the principal of the loan hereunder to the Lender at the rate equal to the SIBOR (for 6 months) [/] plus [ ] minus the margin of 1.50% per annum.
Where the law or the notification of the Bank of Thailand prescribes a change in interest rate and discount or margin for extending credits by commercial banks, or where the Lender changes the SIBOR used as a reference for the interest rate hereunder, the Borrower agrees that the Lender may change the SIBOR as provided herein immediately as the Lender deems appropriate, without prior consent from the Borrower or notice or any further evidence to be provided to the Borrower.
4. The Borrower agrees to repay the loan and interest under Clauses 2 and 3 to the Lender at the place and during office hours of the Lender as follows:
4.1 The Borrower agrees to pay interest at each interval of 6 months, on the last business day of every month.
4.2 The Borrower agrees to repay the principal to the Lender completely within 7 years from the date hereof, with a grace period of repayment of principal of 1 year (from June 2005 until May 2006). Upon completion of the said 1-year period, the Borrower agrees to repay the principal to the Lender at each interval of 6 months on the last business day of November and May, by dividing into 12 installments, i.,e., 1st – 11th installments, in the amount of US$ 670,000 (six hundred seventy thousand) and 12th installment, in the amount of balance of US$ 630,000 (six hundred thirty thousand).
If the scheduled date of repayment falls on the Lender’s holiday, the repayment shall be made on the immediately following business day. In addition, the Borrower agrees that, if after the date hereof, the amount to be paid in installment has changed due to the adjustment of interest rate under Clause 3 or for any reasons as may be deemed appropriate by the Lender, the Borrower agrees to pay the amount so changed provided that the Lender merely notifies the Borrower of the same, and the Borrower shall not raise any objections whatsoever.
5. Under any one of the following circumstances, the Borrower shall be deemed to be in default and breach hereof:
5.1 The Borrower is in default of payment of principal, interest or any amount and whether in any installment as provided herein.
Page 2
5.2 The Borrower fails to comply with the Agreement, or is in breach of any provisions as provided herein.
5.3 Any evidence, writing, representation or document delivered by the Borrower to the Lender relating to the credit facility contains any false statement or is a false document, or is not legally effective.
5.4 The Borrower is sued, subject to execution of judgment, or there is any other event which the Lender considers that it may cause damage to the Borrower’s operation or financial condition.
5.5 The Borrower is insolvent or is sued in a bankruptcy case, or is placed under receivership, or its assets are seized or attached by the official.
5.6 The value or reliability of any security provided by the Borrower to the Lender has decreased for any reasons, and after the Lender has given notice to the Borrower requiring placement of additional security, whose value is not less than the original security’s, the Borrower fails or is unable to do so.
Where the Borrower is in default or breach as aforesaid, the Borrower shall be deemed to be in default of payment of the entire loan hereunder, and the entire debt shall become immediately due and payable. The Lender shall be entitled to enforce the debt immediately, and the Borrower agrees to immediately pay debt hereunder in full together with its interest and accessories, as well as any other debts or amounts payable by the Borrower to the Lender hereunder, and agrees to pay interest at the default rate from the date of default until complete payment is made, and agrees to pay other damages arising from the default, breach, expenses incurred in the claim, demand, lawsuit, legal fees, court fees and compensation.
Where the law, notification of the Bank of Thailand, or the Lender announces a change in the said default rate, the Borrower agrees that the Lender shall be entitled to immediately change the default rate provided herein, without the prior consent from the Borrower and without notice or any further evidence to be provided to the Borrower.
6. A change in any interest rates under Clauses 3 and 5 shall be notified by the Lender to the Borrower at the office of the Lender, whereby the Borrower shall be deemed to acknowledge the announcement of such change by the Lender every time.
7. The Borrower agrees to pay all stamp duties, fees (other than those provided herein) taxes, insurance premiums for security, expenses and any amounts incurred in connection with any steps taken involving the security, renewal of insurance, survey and appraisal of the value of security, review of the appraised value of security, and any other expenses incurred in any steps taken as provided herein.
In addition, the Borrower agrees to pay the following fees to the Lender:
Fees: These shall be in accordance with the Memorandum of Agreement dated June 6, 2005.
Page 3
If the Borrower is in default of payment of any fee or expense in the amount and within the period provided as a condition above, the Borrower agrees that the Bank may charge interest at the default rate on the said fee or expense from the date of default until payment of such fee or expense is made in full.
8. In lending hereunder, if the Borrower is in default of payment of interest at the rate and within the period provided in Clauses 3 and 4 for a period of not less than one year, whether the Lender has made a demand or not, the Borrower agrees that the overdue interest for the said period may be compounded with the principal immediately when it is overdue from time to time, and the same shall become the principal to be repaid in installments by the Borrower under Clause 4.
9. Payment in installments by the Borrower under Clause 4 hereof shall not bar the right of the Lender to demand the Borrower to pay debt hereunder either in whole or in part prior to the due date under Clause 4 hereof as the Lender may deem appropriate due to any event in which the Lender believes that the Borrower will not pay debt or may be unable to pay debt as usual, without giving any reasons to the Borrower. The Borrower agrees that in case of such demand by the Lender, the Borrower shall pay debt to the Lender without reluctance, and shall not raise the benefit of time as a defense against the Lender.
10. In order to secure the performance hereof, the Borrower has placed land title deed Nos. 1645 and 7132, Tambol Bangwaitai (Klong 0 Xxx), Xxxxx Xxxx (Xxxxx 0, Xxx), Xxxxxx Xxxxx Luang, Pathumthani province (Thunyaburi), for registration of mortgage as security in favor of the Lender, and the Borrower has delivered all documents relating to such security to the Lender until the Lender is fully paid the debt hereunder.
11. The Borrower agrees to insure the property placed as security under Clause 10 with an insurance company approved by the Lender, in the insured amount designated by the Lender, allowing the Lender as the beneficiary under the policy. The Borrower also agrees to completely take out the insurance prior to receipt of the loan under Clause 2 or within the period as the Lender may deem appropriate. The Borrower shall pay insurance premiums and bear all expenses incurred in the insurance. The Borrower also agrees to renew the insurance contract as long as the Borrower is indebted to the Lender.
If the Borrower fails to take out or renew the insurance, the Borrower agrees that the Lender may do so on its behalf, and the Borrower agrees to reimburse the insurance premiums paid by the Lender, to the Lender together with interest at the default rate from the date of such payment by the Lender until reimbursement is made in full.
12. The Borrower agrees to review every year the assessed value of the property placed as security with the Lender, by an appraiser approved by the Lender, and the Borrower agrees to bear expenses involved therewith.
13. The Borrower agrees that the Lender shall have the power to deduct money from the Borrower’s current account, No. 099-1-05185-5 at [ ] head office, [/] Simummuang
Page 4
Market- Rangsit branch, every month or at each time according to the repayment in installments to be made by the Borrower hereunder, to pay the principal and interest, as well as fees, stamp duties, taxes, insurance premiums, expenses and money advanced for the Borrower by the Lender in connection with the survey and appraisal of the value of the security, review of the appraised value of the security, insurance, renewal of insurance, expenses, damages or any amounts payable by the Borrower to the Lender hereunder or under any other documents or juristic acts relating to the execution of this Agreement, without notice to the Borrower, and the Borrower agrees that the Lender may exercise the right of retention or inhibit the Borrower from withdrawing such money, until the Borrower has paid debt to the Lender in full.
The consent under the preceding paragraph shall also be applicable to other types of deposit accounts or any other amounts owned by the Borrower and kept at the Lender, whether such amounts are deposited or kept at any office of the Lender.
In addition to the property placed as security hereunder, if the Borrower has any properties mortgaged, pledged or placed by the Borrower as security for other types of debts owed by the Borrower itself, or placed as security for payment of debt by any other person, whether such properties are kept at any office of the Lender, the Borrower agrees that the Lender may use all such properties to pay the debt payable by the Borrower hereunder. The Borrower also agrees that the Lender may exercise the right of retention or inhibit the Borrower from withdrawing mortgage, pledge or such properties if the Lender considers that such act of the Borrower will cause damage to the Lender or may cause the Lender to be unable to receive payment of debt hereunder.
14. At any time insofar as the debt hereunder has not been paid in full by the Borrower, in case the Lender considers that the rate of exchange of US$ into Thai baht is higher than such exchange rate on the day the Borrower makes a disbursement of loan in excess of ten percent (10%), or in case the circumstance of the Lender’s source of loan in US$ has changed, or in case the Lender deems it appropriate and more beneficial, or in any case where the Lender, at its absolute discretion, considers that it may affect the Borrower’s ability to make payment of principal of credit facility, its interest, fee and / or any other money payable in US$ to the Lender by the Borrower hereunder, the Lender shall immediately convert the currency of all credit facility owed to the Lender by the Borrower into Thai baht with no Borrower’s opposition thereto. The Borrower agrees to waive all its claim for any damages from the Lender. In such case, the Borrower agrees to comply with the following conditions:
In such conversion of currency, the Borrower agrees to allow the Lender to apply the official exchange rate determined by the Lender in selling of US$ on such date of conversion of such currency. The Borrower agrees to pay interest on the principal so conversion at MLR ¨ plus ¨ less the margin at the rate of per year. If the Borrower is in breach of the Agreement, the Borrower agrees to pay interest to the Lender at the default rate until payment of debt is completely made.
In addition, in conversion of US$ into Thai baht as aforesaid, the Borrower agrees to comply with all conditions and rules of the Lender, and agrees to allow the Lender, as its agent, to act on its behalf in signing any documents in connection with translation of such
Page 5
currency, and to do all necessary acts on its behalf including the international remittance of currency on account of conversion of such currency as determined by the Lender, as well as the entering into a loan agreement with TMB Bank Public Company Limited for the purpose of borrowing of Thai baht (if necessary).
15. The Borrower agrees to give prior consent for the Lender to dispose of or transfer debt or assign claims hereunder, or assign the right of mortgage, pledge, guarantee or right to any other security involving such debt or claims of the Lender either in whole or in part, to any person or juristic person at any time, regardless of whether the Lender has given notice to the Borrower of the same or not.
16. Any communication, demand, notice or any other letter sent to the Borrower by registered or unregistered mail or by any means, or by hand, to the address written above shall be deemed to have been duly given to the Borrower, regardless of whether there is a recipient or not. If it cannot be delivered because the address indicated herein has changed or removed without notice thereof from the Borrower to the Lender, or if it cannot be delivered because the address written above is not found, the Borrower shall be deemed to have duly received and acknowledged such communication, demand, notice or any other letter from the Lender.
17. If the Borrower is in breach of any or all of the provisions hereof, and if it is necessary to take legal action, the Lender shall be entitled to file a lawsuit with the Civil Court or the court having jurisdiction over the locality in which the Borrower or the Lender has domicile, or the court of the locality where the immovable property is located, or the court of the locality where this Agreement was executed, as the Lender may deem appropriate.
The Borrower has thoroughly read and understood the contents hereof, and has therefore signed (with seal affixed) in the presence of witnesses on the date written above.
Fabrinet Co., Ltd.
(Seal)
Signed -Signature- Borrower
(Mr. Soon Kaewchansilp)
Authorized Director of the Company
Signed -Signature- Borrower
(FABRINET by Mr. David Xxxxxx Xxxxxxxx, President & CEO)
TMB Bank Public Company Limited
Signed -Signature- and seal Lender
By (Mrs. Phawana Wej-anurak 336)
Page 6
Authorized signatory of the Bank
| Signed -Signature- Witness | Signed -Signature- Witness | |
| (Xx. Xxxxx Masnithat) | (Mrs. Jinrapha Thaithae) |
Page 7
070907
(Translation)
TMB Bank Public Company Limited
Memorandum of Agreement
| Made at TMB Bank Public | ||||||
| Company Limited |
Date: June 6, 2005
Whereas Fabrinet Co., Ltd. and/or FABRINET, as the Borrower, hereinafter referred to as the “Company”, has received support of credit for use as working capital in the business of the Company from TMB Bank Public Company Limited, as the Lender, hereinafter referred to as the “Bank”, in the total amount of US$ 8,000,000.00 (eight million only) pursuant to the Loan Agreement dated June 6, 2005, hereinafter referred to as the “Loan Agreement”.
The Company wishes to provide representations and confirmations to the Bank. The Company therefore executes this Memorandum for the Bank as follows:
1. The Company shall furnish to the Bank every year the Affidavit showing registration as a juristic person of the Company, issued not more than ninety (90) days from the last day of its fiscal period. In addition, at each time of change in the Company’s register, the Company shall furnish to the Bank such documents of change in its register within thirty (30) days from the date of the change.
2. The Company shall furnish to the Bank the annual financial statements of the Company and of Fabrinet together with notes to the financial statements certified by the certified public accountant within one hundred and twenty (120) days from the last day of its fiscal period, and shall furnish to the Bank the quarterly financial statements (if any) within ninety (90) days from the last day of its [quarterly] fiscal period, certified as correct by the authorized director(s) of the Company.
3. The Company shall notify the Bank in writing within thirty (30) days upon a change in the major shareholder, executive, director or authorized director of the Company, or change in the Company’s seal, or upon any significant event affecting its financial condition and operation.
4. The Company confirms that on the date of execution of the Loan Agreement, Mr. David Xxxxxx Xxxxxxxx is a major shareholder holding shares at the ratio of 20% and is the Chairman of the Board of the Company. If Xx. Xxxxx Xxxxxx maintains his shareholding in Fabrinet lower than 10.00% of all shares or ceases to be the main executive of the Company, the Company shall inform the Bank within thirty (30) days from the date of decrease of shareholding ratio or cessation of being the executive.
Page 8
5. The Company shall maintain the overall financial ratios at the end of December and June of each year throughout the period of extending credit by the Bank as follows:
5.1 The Company shall maintain the debt service coverage ratio (DSCR) at not lower than 2.00. The DSCR is calculated as follows:
| Profit before interest expense and depreciation and amortized expenses + cash and savings at banks |
| Long-term debts due in 1 year + interest expense + short-term financial debts |
5.2 The Company shall maintain its D/E ratio at not more than 2.00. The D/E ratio is calculated as follows:
| Liabilities and obligations |
| Shareholders’ equity – intangible assets – loan receivables from related companies and directors – investment |
6. The Company shall maintain its reserved cash in its reserve account to be equal to the interest and principal payable for the period of 6 months ahead.
7. If the Company is in default of payment of debt owed to any financial institution, the Company agrees to be deemed to also be in default of payment of debt owed to the Bank.
8. If the investment budget for construction of factory building invested this time is higher than the amount of US$ 10 Million (ten million only), the shareholder or the Company shall be responsible for the additional capital.
9. The Company shall not pay debt owed to its directors and affiliates until the long-term loan debt owed to the Bank is paid in full, except payment of debt arising in the normal course of business.
10. Any disposal of, distribution or transfer of assets other than in the normal course of business in the amount more than Baht 50,000,000 (fifty million only) must first be consented in writing by the Bank.
11. The Company may pay dividend only in the following cases:
11.1 The Company is able to repay principal, pay interest and fees incurred relating to credit facilities when due.
11.2 The Company is able to maintain its reserved cash in its reserve account, which is equal to the amount of interest and principal payable for the period of 6 months ahead, and must obtain the prior approval from the Bank.
12. If the Company gains profit from its operation, the Company may pay dividend by not more than 50% of its net profit of that year. If the Company wishes to pay dividend by more than 50% of its net profit of the relevant year, the prior written consent from the Bank must be obtained.
Page 9
13. The Company shall maintain its DSCR (debt service coverage ratio) after payment of dividend at not lower than 2.00, using the calculation basis under Clause 5.1.
14. If the Company fails to comply with the provisions of this Memorandum of Agreement, the Company shall be deemed to be in breach of the agreement with the Bank, which is regarded as an event of default. The Bank may then consider cancelling the Loan Agreement and demand the Company to pay debt in full immediately, whereby the Company shall not raise any objections whatsoever.
In Witness Whereof, the Company has thoroughly read and understood the contents above, and has therefore signed (with seal affixed) in the presence of witnesses.
Fabrinet Co., Ltd.
(Seal)
Signed -Signature- Company
(Mr. Soon Kaewchansilp, Director)
FABRINET
Signed -Signature- Company
(FABRINET by Mr. David Xxxxxx Xxxxxxxx, President & CEO)
TMB Bank Public Company Limited
Signed -Signature- and seal Bank
(Mrs. Phawana Wej-anurak 336)
Authorized signatory of the Bank
| Signed -Signature- Witness | Signed -Signature- Witness | |
| (Xx. Xxxxx Masnithat) | (Mrs. Jinrapha Thaithae) |
Page 10
050907
(Translation)
TMB Bank Public Company Limited
Memorandum
| Made at TMB Bank Public | ||||||
| Company Limited |
Date: June 6, 2005
Whereas we, Fabrinet Co., Ltd. and/or FABRINET, the Borrower, have been approved:
| Overdraft in the amount of | ||||
| Loan in the amount of | US$ 8,000,000 (eight million only) | |||
| Amount under letter of guarantee | ||||
| (electricity) in the amount of | Baht 15,000,000 (fifteen million only) |
From TMB Bank Public Company Limited. We hereby enter into this Memorandum of Agreement with TMB Bank Public Company Limited as follows:
We hereby agree to pay fees to be charged to us by the Bank as follows:
1. Fee for extending credit/analysis of project and relevant documents (front-end fee) at the rate of 0.25% of the amount of credit facility approved, payable to the Bank in full on the date hereof.
2. Prepayment fee at the rate of – % of the loan prepaid, payable to the Bank on the rate of payment of debt. However, the Bank may charge such fee only in cases where there is a transfer of the credit so prepaid, to another financial institution. The prepayment must be notified to the Bank not less than 45 days in advance, and the prior written consent from the Bank must be obtained.
3. Cancellation fee at the rate of 1.00% of the amount of credit cancelled, payable to the Bank on the date of notice by the Borrower of such cancellation.
4. Commitment fee at the rate of 1.00% per annum of the amount of undrawn portion of the credit facility or of the overdrawn or underdrawn portion of the credit facility provided in the above-mentioned agreement, payable to the Bank within – days after the scheduled date of drawdown of credit facility at the relevant time.
5. Extension fee at the rate of 1.00% of the principal, extension of time for repayment of which is requested, provided that the prior written consent of the Bank is obtained.
6. Penalty fee at the rate of – % of the principal due but not yet repaid.
Page 11
7. Conversion fee of – % of the amount converted, payable on the date of conversion of currency of credit facility.
8. Processing fee, which the Borrower agrees to pay to the Lender in the amount of Baht – ( – )
| 9. | – | |
|
| ||
|
| ||
If we are in default of payment of any fee in the amount and within the period provided as a condition above, we agree that the Bank may charge interest at the rate of 13.00% per annum on the amount of such fee, from the date of default until payment of such fee is made in full.
In Witness Whereof, we have signed and affixed seal (if any) in the presence of witnesses.
Fabrinet Co., Ltd.
(Seal)
Signed -Signature- Memorandum Maker
(Mr. Soon Kaewchansilp, Director)
FABRINET
Signed -Signature- Memorandum Maker
(FABRINET by Mr. David Xxxxxx Xxxxxxxx, President & CEO)
Signed -Signature- Witness
(Xx. Xxxxx Masnithat)
Signed -Signature- Witness
(Mrs. Jinrapha Thaithae)
Page 12
