Exhibit 10(b)
CREDIT FACILITIES AGREEMENT
BETWEEN
INNOVEX (THAILAND) LIMITED
as the Borrower
BANK OF AYUDHYA PUBLIC COMPANY LIMITED
as the Facility Agent
THE INDUSTRIAL FINANCE CORPORATION OF THAILAND
as the Security Agent
AND
THE INDUSTRIAL FINANCE CORPORATION OF THAILAND
and
BANK OF AYUDHYA PUBLIC COMPANY LIMITED
as the Creditors
Siam Premier International Law Office Limited
24th - 26th Floor, Thai Wah Tower II
00/000-000 Xxxxx Xxxxxxx Xxxx
Xxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
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TABLE OF CONTENTS
Page
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1. Definition and Interpretation..........................................21
2. The Facilities.........................................................27
3. Conditions Precedent...................................................28
4. Utilization of Facility................................................29
5. Fees and Interest......................................................32
6. Repayment and Prepayment...............................................33
7. Payment................................................................35
8. The Facility Agent, the Security Agent and the Creditors...............35
9. Change in Circumstances................................................38
10. Representations and Warranties.........................................40
11. Affirmative Covenants and Negative Covenants...........................41
12. Event of Default.......................................................47
13. Security...............................................................49
14. Distribution of Security...............................................50
15. Indemnity..............................................................52
16. Expenses...............................................................52
17. Notices................................................................52
18. Assignment.............................................................54
19. Void Provision not Affecting Valid Provision...........................54
20. Amendment or Waiver....................................................54
21. Set-Off................................................................54
22. Governing Laws.........................................................55
23. No Waiver..............................................................55
24. Effective Date of this Agreement.......................................55
Attachment 1 Details of the Facilities and the Creditors
Attachment 2 Drawdown Notice
Attachment 3 Receipt (for Long Term Facility)
Attachment 3.1 Receipt (for Packing Credit Facility)
Attachment 3.2 Receipt (for Short Term Working Capital Facility)
Attachment 4 Notice of Commitment Percentage
Attachment 5 General Conditions Precedent
Attachment 6 Repayment Schedule
Attachment 7 Details of Land and Building
Attachment 8 Guarantee Agreement
Attachment 9 Equipment Pledge Agreement
Attachment 10 Escrow Agreement
Attachment 11 Prioritization Agreement
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CREDIT FACILITIES AGREEMENT
This Agreement is made to be effective from 23 April 2001
BETWEEN
INNOVEX (THAILAND) LIMITED (Registration No. Bor Aor Chor. Lor Por 253)
with its head office located at Xx. 00 Xxx 0 Xxxxxx Xxxxxxxxxx Xxxx 2, Northern
Industrial Estate, Baan Klang Sub-district, Muang Lampoon District, Lampoon
Province (hereinafter referred to as the "Borrower")
BANK OF AYUDHYA PUBLIC COMPANY LIMITED ("Bank of Ayudhya") as the Facility Agent
(hereinafter referred to in this Agreement as the "Facility Agent")
THE INDUSTRIAL FINANCE CORPORATION OF THAILAND ("IFCT") as the Security Agent
(hereinafter referred to as the "Security Agent").
AND
THE INDUSTRIAL FINANCE CORPORATION OF THAILAND and BANK OF AYUDHYA PUBLIC
COMPANY LIMITED as the Creditors (hereinafter referred to collectively as the
"Creditors" and individually as "Creditor").
WHEREAS
(A) The Borrower intends to obtain the Facilities from the Creditors for
the business of manufacturing Flexible Interconnect Assembles and/or
any products of the Borrower; and
(B) The Creditors are desirous of providing the Facilities to the Borrower
in accordance with the details and conditions of this Agreement.
The Borrower, the Facility Agent, the Security Agent and the Creditors have
already studied this Agreement to understand the contents hereof and have
obtained the necessary consultation and instruction from their counsels and are
of the opinion that the contents of this Agreement are correct in accordance
with their intention and have agreed to enter into this Agreement in accordance
with the following details.
1. DEFINITION AND INTERPRETATION
1.1 Unless the context required otherwise, all the words and terms provided
in this Agreement have the following meanings:
"AUTHORIZED DIRECTOR" means one or more directors who are authorized to
sign and affix the company seal to bind the limited company in
accordance with their authorization registered with the registrar of
the partnerships and corporations, Lampoon Province;
"CREDITORS" means all the financial institutions specified in
Attachment 1 and the "CREDITOR" means each financial institution
specified in Attachment 1;
"LONG TERM CREDITORS" and "LONG TERM CREDITOR" mean the Long Term
Creditors and each Long Term Creditor (as the case may be) under this
Agreement;
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"PACKING CREDIT CREDITORS" and "PACKING CREDIT CREDITOR" mean the
Packing Credit Creditors and each Packing Credit Creditor (as the case
may be) under this Agreement;
"WORKING CAPITAL CREDITORS" and "WORKING CAPITAL CREDITOR" mean IFCT as
the Short Term Working Capital Creditor and Bank of Ayudhya as the
Overdraft Creditor (as the case may be) under this Agreement;
"PLEDGEES" means IFCT and Bank of Ayudhya;
"DRAWDOWN" and "DRAWDOWN" mean an act of borrowing and other
utilization of Facility under this Agreement;
"REPAYMENT SCHEDULE" means the repayment schedule for Long Term
Facility under the condition specified in Clause 6.1.1 and Attachment
6;
"EQUIPMENT" means all the equipment and appliances installed or will be
installed, imported or purchased locally or used in the Project at
present and in the future from the Effective Date of this Agreement
until 31 December 2002 including Registrable Equipment in accordance
with the details specified in Attachment 9 and any amendment thereof;
"REGISTRABLE EQUIPMENT" means all the equipment located in the Project
which is capable of registration under the Machinery Registration Acts
B.E. 2514 (including any amendment thereof);
"PROJECT" means the project for the manufacturing of Flexible
Interconnect Assembles and/or any products of the Borrower;
"NOTICE OF DRAWDOWN" means the notice of drawdown in the form specified
in Attachment 2;
"LOAN" means the aggregate principal amount that the Long Term
Creditors, Packing Credit Creditors and/or Working Capital Creditors
allow the Borrower to drawdown under this Agreement and for the time
being of outstanding under this Agreement;
"BAHT CURRENCY" or "BAHT" means the lawful currency of Thailand;
"FINANCIAL STATEMENTS" means balance sheet, income statement, cashflow
statement of the Borrower or the Guarantor (as the case may be)
together with the notes attached thereto including the statements
specifying the sources and uses of funds;
"INTEREST PERIOD" means the interest period as specified in Clause
5.1.2, Clause 5.2, Clause 5.3, Clause 9.3.2, Clause 9.3.5 and Clause
12.3.2;
"UTILIZED AMOUNT" means the principal that any Creditor allow the
Borrower to drawdown or that any Creditor is deemed to allow the
Borrower to drawdown on each Utilization Date;
"AUTHORIZED OFFICER" means any or more persons authorized by the
Authorized Director of a company to act and sign to bind the company;
"EQUITY" means the equity of the Borrower which includes paid-up share
capital, share premiums, reserves, retained earnings and also includes
the subordinated loans provided by any of Innovex Group Companies to
the Borrower in compliance with the form and substance acceptable to
the Creditors;
"LAND AND BUILDING" means the land and building which are the location
of the Project in accordance with the details specified in Attachment
7;
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"INNOVEX GROUP COMPANIES" means any company registered in any
jurisdiction which holds shares or have controlling power or being
controlled by or under common control with other companies, whether
directly or indirectly, in the Borrower; for the benefit of the
foregoing, the power to control, being controlled or under common
control mean having the power, whether directly or indirectly, to order
or have the power to designate the management or policies of such
company whether by being the holder of voting shares, by contract or
otherwise;
"RECEIPT" means the receipt issued by the Borrower to each Creditor as
evidence of the drawdown from (a) the Long Term Facility in accordance
with the form specified in Attachment 3 (b) the Packing Credit Facility
in accordance with the form specified in Attachment 3.1, and (c) the
Short Term Working Capital Facility in accordance with the form
specified in Attachment 3.2;
"SECURITY KEEPER" means each of (a) Xx. Xxxxx Xxxxxx and/or (b) Xx.
Xxxxxx Xxxxxx who is a director of the Borrower and has the power to
control the Equipment for and on behalf of the Creditors in accordance
with the conditions set forth in Attachment 9;
"GUARANTOR" means Innovex Inc which is an ultimate parent company of
the Borrower and/or the Innovex Group Companies;
"AUDITOR" means any authorized auditor of Xxxxx Xxxxxxxx or other
independent audit firm appointed by the Borrower with the consent of
the Creditors;
"AVAILABILITY PERIOD FOR LONG TERM FACILITY" means the period
commencing from the Effective Date of this Agreement and expiry on the
earlier of (a) 30 June 2001 or (b) the Long Term Creditors have no
obligation to provide Long Term Facility to the Borrower or (c) the
Long Term Creditors agree with the Borrower;
"AVAILABILITY PERIOD FOR PACKING CREDIT FACILITY" means the period
commencing from the Effective Date of this Agreement and expiring on
the earlier of (a) the Packing Credit Creditors have no obligation to
provide Packing Credit Facility to the Borrower under this Agreement
and/or the Documents for the Utilization of Packing Credit Facility or
(b) the Packing Credit Creditors agree with the Borrower;
"AVAILABILITY PERIOD FOR WORKING CAPITAL FACILITY" means the period
commencing from the Effective Date of this Agreement and expiring on
the earlier of (a) the Working Capital Creditors have no obligation to
provide Working Capital Facility to the Borrower under this Agreement
and/or the Documents for the Utilization of Overdraft Facility or
Documents for the Utilization of Short Term Working Capital Facility
(as the case may be) or (b) the Working Capital Creditors agree with
the Borrower;
"PROMISSORY NOTE" means any promissory note issued by the Borrower to
the Packing Credit Creditor and/or Working Capital Creditor as an
evidence for the granting and/or drawing of that type of FACILITY to
the Borrower and shall be in accordance with the form specified by each
such Creditor;
"FACILITY LIMIT OF EACH CREDITOR" means the facility limit for Long
Term Facility, Packing Credit Facility and Working Capital Facility
provided by each Creditor to the Borrower under Attachment 1 under the
name of each such Creditor, this facility limit may be reduced or
cancelled under the term of this Agreement;
"BANKING DAY" means the day the Creditors open for business in Bangkok
(except Saturdays, Sundays and other holidays of the financial
institutions announced by the Bank of Thailand);
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"UTILIZATION DATE" means the date the Borrower utilizes any type of
Facility under this Agreement;
"EFFECTIVE DATE OF THIS AGREEMENT" means 23 April 2001;
"REPAYMENT DATE" means the day on which the loan shall be repaid as
specified in Clause 6 of this Agreement and under Attachment 6 (as the
case may be);
"INTEREST PAYMENT DATE" means the day on which the interest shall be
due and payable under this Agreement;
"COMMITMENT PERCENTAGE" means the commitment percentage for the
Facility of each Creditor specified under the name of such Creditor in
Attachment 1;
"GUARANTEE AGREEMENT" means the Guarantee Agreement issued by the
Guarantor to the Creditors in accordance with the form of Attachment 8
as a security of the Debt of the Borrower under this Agreement;
"LAND AND BUILDING MORTGAGE" means the agreement to mortgage the Land
and Building including the agreement attached to the Land and Building
Mortgage in accordance with the form and substance specified by the
Security Agent;
"EQUIPMENT MORTGAGE AGREEMENT" means the agreement to mortgage the
Registrable Equipment including the agreement attached to the Equipment
Mortgage Agreement in accordance with the form and substance specified
by the Security Agent;
"EQUIPMENT PLEDGE AGREEMENT" means the pledge agreement for Equipment
made between the Borrower, Security Keeper, Security Agent and the
Creditors for the benefit of the Creditor in accordance with the form
specified in Attachment 9 of this Agreement;
"POOL ASSETS" means all assets of the Borrower including trade debtor,
note receivable, security, income from the Insurance, money paid by
other person to the Borrower, and other revenues received by the
Borrower under the conditions of this Agreement or other type of the
Agreement;
"FACILITY" means the credit Facility provided by the Creditors to the
Borrower under this Agreement including Long Term Facility, Packing
Credit Facility and Working Capital Facility;
"LONG TERM FACILITY" means the facility in Baht as specified in Clause
2.1.1;
"PACKING CREDIT FACILITY" means the facility in Baht or foreign
currency equivalent to Baht as specified in Clause 2.1.2;
"WORKING CAPITAL FACILITY" means the Short Term Working Capital
Facility and Overdraft Facility in Baht as specified in Clause 2.1.3;
"SHORT TERM WORKING CAPITAL FACILITY" means the short term working
capital facility that IFCT allows the Borrower to drawdown under this
Agreement;
"OVERDRAFT FACILITY" means the overdraft facility that Bank of Ayudhya
allows the Borrower to drawdown under this Agreement;
"NOTICE OF COMMITMENT PERCENTAGE" means the notice informing the
Commitment Percentage for each Facility arranged by the Facility Agent
in accordance with the form specified in Attachment 4;
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"DEBT" and "INDEBTEDNESS" means all debts and obligations of the
Borrower under this Agreement and the Transaction Documents whether
existing debt, future debt or conditional debt including the obligation
of the Borrower to repay the money to the Creditors under the
Transaction Documents;
"EXISTING DEBT" means the Debt which is already in existence at any
time;
"AGGREGATE DEBT" means all debts and obligations of the Borrower at any
time;
"LONG TERM DEBT" means all the debts which has the repayment maturity
of not less than one year from the date of incurrence of such debts;
"SECURITY" means the security specified in Clause 3.1, Clause 13 and
Attachment 5 including the additional security to be provided in
addition to or as a substitution in the form and value acceptable to
the Creditors;
"EVENT OF DEFAULT" means any event as specified in Clause 12.1 as an
event of default;
"PROPORTION OF DEBT" means the proportion of the Existing Debt of the
Borrower for each Creditor and all the Existing Debts of the Borrower
under the Long Term Facility, Packing Credit Facility or Working
Capital Facility (as the case may be) at any time under this Agreement;
"TRANSACTION DOCUMENTS" means this Agreement, and agreements, documents
and other agreements relating to the utilization of the Facility under
this Agreement including all the documents relating to Security,
Guarantee Agreement, Land and Building Mortgage Agreement, Equipment
Pledge Agreement, Equipment Mortgage Agreement, Escrow Agreement,
Prioritization Agreement, Documents for the Utilization of Overdraft
Facility, Documents for the Utilization of Packing Credit Facility,
Documents for the Utilization of Short Term Working Capital Facility,
Receipt and Promissory Notes;
"DOCUMENTS FOR THE UTILIZATION OF OVERDRAFT FACILITY" means application
for the utilization of overdraft and/or documents or agreements which
are used for the utilization of overdraft Facility (including overdraft
agreement) in the form and substance specified by Bank of Ayudhya;
"DOCUMENTS FOR THE UTILIZATION OF SHORT TERM WORKING CAPITAL FACILITY"
means application for the utilization of Short Term Working Capital
Facility and/or any documents, instruments, Promissory Notes or other
agreements which are used for the utilization of the Short Term Working
Capital Facility in the form and substance specified by IFCT;
"DOCUMENTS FOR THE UTILIZATION OF PACKING CREDIT FACILITY" means
application for the utilization of Packing Credit and/or any documents,
instruments, Promissory Notes or other agreements which are used for
the utilization of Packing Credit Facility in the form and substance
acceptable to Packing Credit Creditors;
"DEFAULT INTEREST RATE" means
(a) In the case of IFCT, the maximum interest rate IFCT is legally
allowed at that particular time to use in compliance with the
laws regarding interest for loans of financial institutions
which, on the Effective Date of this Agreement, is at the rate
of seventeen (17) percent per annum but can be changed as
announced, from time to time, by IFCT; and/or
(b) In the case of Bank of Ayudhya, the maximum interest rate
applicable to the general customers who breach any condition
specified by Bank of Ayudhya under the notification of the
Bank of Thailand relating to the specification for commercial
banks to perform in relation to interest and discount which,
on the Effective Date of this Agreement, is at the rate
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of fourteen point five (14.5) percent per annum but can be
changed as announced, from time to time, by Bank of Ayudhya;
"MARKET RATE" means an annual interest rate to be used with Packing
Credit Facility which is MOR or any rate used by each Packing Credit
Creditor to calculate the interest on that particular date from its
prime customers;
"AVERAGE MLR" means an annual interest rate specified by the Facility
Agent by using the annual interest rate that each Creditor used to
calculate the interest for the long term debt in Baht from the prime
customers of each Creditor;
"MOR" means
(a) In the case of Bank of Ayudhya, an annual interest rate
specified by Bank of Ayudhya using the annual interest rate
that Bank of Ayudhya used to calculate the interest for the
overdraft facility in Baht from its prime customers which, on
the Effective Date of this Agreement, is at the rate of eight
point two five (8.25) percent per annum but can be changed as
announced from time to time by Bank of Ayudhya; and
(b) In the case of IFCT, a minimum annual interest rate for the
purchase of bills from the prime customers as announced by
IFCT which, on the Effective Date of this Agreement, is at the
rate of eight point two five (8.25) percent per annum but can
be changed as announced from time to time, by IFCT;
"ESCROW AGENT" means Citibank, N.A., Bangkok Branch;
"ESCROW AGREEMENT" means the escrow agreement dated 23 April 2001
executed by the Borrower, Creditors, U.S. Bank and Xxxxx Fargo Bank in
accordance with the form specified in Attachment 10;
"PRIORITIZATION AGREEMENT" means the prioritization agreement dated 23
April 2001 executed by the Guarantor, Creditors, U.S. Bank and Xxxxx
Fargo Bank in accordance with the form specified in Attachment 11;
"U.S. BANK" means U.S. Bank National Association, which is one of the
banks which currently provides credit facilities to the Guarantor or
any Innovex Group Company other than the Borrower; and
"XXXXX FARGO BANK" means Xxxxx Fargo Bank Minnesota National
Association, which is one of the banks which currently provides credit
facilities to the Guarantor or any Innovex Group Company other than the
Borrower.
1.2 Under this Agreement unless the context required otherwise
(a) References to this Agreement or Transaction Documents shall
include annexes and attachments of this Agreement or
Transaction Documents and also includes this Agreement or the
Transaction Documents as amended and supplemented from time to
time;
(b) The term "Facility Agent", "Security Agent" and "Creditor" are
references to the assignee or transferee of such person;
(c) The term "Law" includes the codes, emergency decrees,
constitution, statutes, acts, decrees, emergency decrees,
treaties, conventions, guidelines and judgments (whether or
not having the force of laws) and also includes the laws of
the countries other than Thailand.
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1.3 Contents, headings or names of this Agreement and the Transaction
Documents are for the purpose of references only and will not be used
for the interpretation of any terms of this Agreement or the
Transaction Documents.
2. THE FACILITIES
2.1 Subject to the terms and conditions of this Agreement, the Facilities
to be made available to the Borrower under this Agreement shall consist
of:
2.1.1 LONG TERM FACILITY the Baht loan facility provided by the Long
Term Creditors to the Borrower under the terms and conditions
of this Agreement for the aggregate amount of not exceeding
Baht 590,000,000 (Five Hundred Ninety Million Baht)
2.1.2 PACKING CREDIT FACILITY the Baht or foreign currency
equivalent to Baht facility as Packing Credit Creditors agree
but not exceeding the Packing Credit Facility Limit provided
by Packing Credit Creditors to the Borrower under the terms
and conditions of this Agreement for the aggregate amount of
not exceeding Baht 530,000,000 (Five Hundred Thirty Million
Baht)
2.1.3 WORKING CAPITAL FACILITY Baht loan or overdraft provided by
Working Capital Creditors to the Borrower under the terms and
conditions of this Agreement for the aggregate amount of not
exceeding Baht 80,000,000 (Eighty Million Baht) divided in to
the following type of the Facility:
(1) SHORT TERM WORKING CAPITAL FACILITY to be provided by
IFCT to the Borrower for the amount not exceeding
Baht 70,000,000 (Seventy Million Baht); and
(2) OVERDRAFT FACILITY to be provided by Bank of Ayudhya
to the Borrower for the amount not exceeding Baht
10,000,000 (Ten Million Baht).
2.2 The Borrower shall use the Facilities exclusively for the following
purposes:
2.2.1 LONG TERM FACILITY The Borrower shall use the Long Term
Facility for the payment of expenses related to the Project.
2.2.2 PACKING CREDIT FACILITY The Borrower shall use the Packing
Credit Facility for the payment of expenses related to the
Project and as working capital for the Project.
2.2.2 WORKING CAPITAL FACILITY The Borrower shall use the Working
Capital Facility as working capital for the Project.
2.3 The fact that, for whatsoever reason, the Facility or any part thereof
is not fully utilized by the Borrower or is unavailable to the Borrower
shall neither affect nor impair the liabilities of the Borrower to
perform any and all of its obligations under this Agreement in full nor
impose any obligation on any Creditor to provide the Borrower any
Facility other than the Commitment Percentage of the Facility of each
Credit as specified in this Agreement.
2.4 Failure by a Creditor to perform its obligation under this Agreement
shall not release other Creditor, Facility Agent, Security Agent or the
Borrower from their respective obligations under this Agreement nor
shall any Creditor, Security Agent or Facility Agent be liable in any
respect for the failure of such Creditor to perform its obligation
under this Agreement. In the event of any circumstance as specified
above has happened, other Creditor will arrange the consultation with
the Borrower immediately to find a possible remedy for such
circumstance.
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3. CONDITIONS PRECEDENT
3.1 GENERAL CONDITIONS PRECEDENT
In addition to other conditions specified in this Agreement, the
Creditors are bound to provide the Facility to the Borrower under this
Agreement when the Facility Agent is of the opinion that the Borrower
and the Guarantor have fulfilled the conditions precedent as specified
in Attachment 5 completely no later than seven (7) Banking Days before
the first Utilization Date or if the Facility Agent has waived any
condition precedent in writing before or on the first Utilization Date.
3.2 Conditions Precedent for the utilization of Long Term Facility, Packing
Credit Facility and Working Capital Facility
In addition to other conditions specified in this Agreement, the Long
Term Creditors, Packing Credit Creditors and Working Capital Creditors
are bound to provide the Long Term Facility, Packing Credit Facility
and Working Capital Facility to the Borrower under this Agreement when
the Facility Agent is of the opinion that the Borrower has fulfilled
the conditions precedent as specified under this clause in full no
later than three (3) Banking Days before the Utilization Date for the
Long Term Facility, Utilization Date for Packing Credit Facility or
Utilization Date for Working Capital Facility (as the case may be) or
when the Facility Agent has waived any condition precedent to the
Borrower in writing before or on the Utilization Date for Long Term
Facility, Utilization Date for Packing Credit Facility or Utilization
Date for Working Capital Facility (as the case may be). The conditions
precedent for Long Term Facility, Packing Credit Facility and Working
Capital Facility are as follows:
3.2.1 Events which are conditions precedent for Long Term Facility,
Packing Credit Facility and Working Capital Facility
(a) all representations and warranties made by the
Borrower and the Guarantor (as the case may be) under
Clause 10 and under other Transaction Documents are
true and correct as if made or provided on that
proposed Utilization Date;
(b) The Borrower and the Guarantor (as the case may be)
are in compliance with the conditions precedent as
specified in Clause 3.1 completely and/or being
waived in writing by the Facility Agent;
(c) The Borrower and the Guarantor (as the case may be)
have fulfilled the affirmative covenants and negative
covenants provided under Clause 11 of this Agreement
and/or provided pursuant to other Transaction
Documents and there is no Event of Default which has
happened or may happen as a result of the utilization
of Long Term Facility, Packing Credit Facility and
Working Capital Facility (as the case may be);
(d) The Transaction Documents, authorization, permit or
other documents of the same kind as specified in
Attachment 5 are in full force and effect and has not
been cancelled or amended in the way which is not
acceptable to the Long Term Creditors, Packing Credit
Creditors or Working Capital Creditors (as the case
may be).
3.2.2 Documents which are conditions precedent for each utilization
of Long Term Facility
The Facility Agent has received the following documents within
the time specified above.
(a) a Notice of Drawdown for that drawdown; and
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(b) the Transaction Documents, other documents relating
to this Agreement or related to the Borrower or other
parties as requested by Long Term Creditors.
The Borrower shall deliver the documents specified in Clause
3.2.2 to the Facility Agent with sufficient copy for the
Creditors (one copy for each Long Term Creditor of which the
Facility Agent will keep the original of all the documents).
For the copy of all documents, the Borrower will arrange for
its Authorized Director or Authorized Officer to certify each
document as true and correct copy and in full force on the
date of the certification of such documents.
3.2.3 Documents which are conditions precedent for each utilization
of the Packing Credit Facility
Before the utilization of each Packing Credit Facility, each
Packing Credit Creditor will receive the Documents for the
Uitilization of Packing Credit Facility and Promissory Note
which is duly signed by the Authorized Director of the
Borrower and proper stamp duties have already been affixed.
3.2.4 Documents which are conditions precedent for each utilization
of the Short Term Working Capital Facility.
Before the utilization of each Short Term Working Capital
Facility, IFCT will receive the Documents for the Utilization
of Short Term Working Capital Facility (in Baht) and the
Promissory Note which is duly signed by the Borrower and
proper stamp duties have already been affixed.
3.2.5 Documents which are conditions precedent for each utilization
of the Overdraft Facility.
Before the first utilization of Overdraft Facility, Bank of
Ayudhya will receive the Documents for the Utilization of the
Overdraft Facility (which includes overdraft agreement) duly
signed by the Authorized Director of the Borrower and proper
stamp duties are affixed and in case for the extension of each
additional Overdraft Facility, the Borrower will affix proper
stamp duties as specified by Bank of Ayudhya.
4. UTILIZATION OF FACILITY
4.1 UTILIZATION OF LONG TERM FACILITY
4.1.1 Subject to the terms of Clause 3.1 and Clause 3.2 and other
terms and conditions specified in this Agreement or the
Transaction Documents, the Borrower may utilize the Long Term
Facility on any Banking Days during the Availability Period
for Long Term Facility.
4.1.2 Each drawdown of the Long Term Facility will be in compliance
with the following conditions:
(a) The Facility Agent has received a Notice of Drawdown
from the Borrower no later than three (3) Banking
Days prior to the date of such drawdown;
(b) The Borrower shall deliver Receipt to the Facility
Agent on each Utilization Date by delivering
(1) Receipt specifying the total amount for such
drawdown;
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(2) Receipt specifying the amount that each Long
Term Creditor provided to the Borrower under
the Commitment Percentage for each Long Term
Creditor for all the Long Term Creditors.
(c) Subject to the conditions of Clause 2.1.1, the
Borrower is entitled to drawdown Long Term Facility
for the aggregate amount of Baht 590,000,000 (Five
Hundred Ninety Million Baht).
(d) In case the Borrower has drawndown Long Term Facility
in full during the Availability Period for Long Term
Facility, the Borrower is not entitled to drawdown
such amount again.
4.1.3 A Notice of Drawdown issued by the Borrower shall be
irrevocably binding on the Borrower to act in compliance with
such notice.
In case the Borrower issues a Notice of Drawdown to the
Facility Agent and there is no drawdown on the date specified
as Utilization Date due to the reason that the Borrower fails
to drawdown or the reason that the Borrower fails to comply
with any conditions specified in Clause 3 in full, the
Borrower will pay the money to the Long Term Creditor upon
request to remedy the damage, loss and expenses as a result of
the failure to drawdown on such date including the loss,
interest margin, costs and expenses incurred from the
reallocation of the amount prepared for the providing of such
Long Term Facility to the Borrower.
4.1.4 Payment of Loan by the Long Term Creditors
Subject to the terms and conditions of this Agreement, for
each drawdown of Long Term Facility, the Facility Agent will
issue the Notice of Commitment Percentage to inform each Long
Term Creditor of the amount of money that such Long Term
Creditor has to provide to the Borrower in compliance with the
Commitment Percentage of the Facility of such Long Term
Creditor for the Long Term Facility no later than two (2)
Banking Days prior to the Utilization Date and within 10.00
a.m of the Utilization Date that the Borrower is allowed to
drawdown the Long Term Facility, each Long Term Creditor will
deliver the amount specified by the Facility Agent by
transferring the money to the Borrower's account (in which
case the Long Term Creditor will deliver copy of the transfer
slip to the Facility Agent within the Utilization Date) or
deliver cashier's cheque under the name of the Borrower dated
the Utilization Date to the Facility Agent for deposit in the
Borrower's account.
The parties clearly agree that the Borrower will be deemed to
receive the Loan when each Long Term Creditor has delivered
the amount of money in accordance with the Commitment
Percentage to the account of the Borrower or delivered the
cashier's cheque in the name of the Borrower dated the
Utilization Date to the Facility Agent which has deposited
such funds in the Borrower's account in compliance with the
condition of this Clause.
4.2 UTILIZATION OF PACKING CREDIT FACILITY
4.2.1 Subject to Clauses 3.1 and 3.2 and other conditions specified
in this Agreement or the Transaction Documents, on any Banking
Days during the Availability Period for Packing Credit
Facility, the Borrower is entitled to utilize the Packing
Credit Facility in Baht or in other foreign currency which is
equivalent to Baht acceptable by each of the Packing Credit
Creditor but not exceeding the Facility Limit of Each Creditor
of such Packing Credit Creditor.
4.2.2 For the utilization of the Packing Credit Facility from each
Packing Credit Creditor, the Borrower shall execute the
Documents for the Utilization of Packing Credit Facility for
such
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Packing Credit Creditor no later than two (2) Banking Days
before the Utilization Date for Packing Credit Facility and
shall deliver a Receipt to each Packing Credit Creditor on
each Utilization Date for Packing Credit Facility obtained
from such Packing Credit Creditor.
4.2.3 The maximum amount for the Packing Credit Facility the
Borrower is entitled to utilize from the Packing Credit
Creditors under this Agreement is Baht 530,000,000 (Five
Hundred Thirty Million Baht).
4.2.4 The maturity of each Packing Credit Facility of the Borrower
will not exceed one hundred and eighty (180) days.
4.2.5 Subject to the conditions of Clause 4.2.3 for any amount
drawndown by the Borrower under the Packing Credit Facility
and has been prepaid or repaid by the Borrower, the Borrower
is entitled to drawdown such amount again under the terms and
conditions set forth by each Packing Credit Creditor under its
Documents for the Utilization of Packing Credit Facility.
4.2.6 The utilization of Packing Credit Facility must be renewed on
a yearly basis in accordance with the conditions specified by
each Packing Credit Creditor in the Documents for the
Utilization of Packing Credit Facility.
4.2.7 The Borrower agrees that the Borrower shall use its best
efforts to utilize Packing Credit Facility from each Packing
Credit Creditor at the proportionate ratio of 8 (IFCT) to 5
(Bank of Ayudhya) or the ratio specified by the Packing Credit
Creditors and shall prepare the reports for the drawdown of
Packing Credit Facility and other Facilities to the Facility
Agent on the first and sixteenth days of each month under the
calendar year.
In case the amount of Packing Credit Facility utilized cannot
be proportionately maintained in accordance with the ratio
specified above, the Facility Agent shall divide the amount as
close as possible to the proportionate ratio specified above.
4.3 UTILIZATION OF OVERDRAFT FACILITY
4.3.1 Subject to Clauses 3.1 and 3.2 and other conditions specified
in this Agreement or the Transaction Document, on any Banking
Days during the Availability Period for Working Capital
Facility, the Borrower is entitled to utilize the Overdraft
Facility with Bank of Ayudhya in accordance with the
conditions specified in the Documents for the Utilization of
Overdraft Facility made with the Bank of Ayudhya.
4.3.2 The maximum amount for the Overdarft Facility that the
Borrower is entitled to utilize under this Agreement is Baht
10,000,000 (Ten Million Baht).
4.3.3 In case Bank of Ayudhya changes the form of Overdraft
Agreement, the Borrower agrees to execute new Overdraft
Agreement in compliance with the new format in substitution
for the old Overdraft Agreement to Bank of Ayudhya immediately
upon request by the Bank.
4.3.4 The Utilization of Overdraft Facility must be renewed on a
yearly basis in accordance with the conditions specified by
Bank of Ayudhya and/or the conditions specified in the
Documents for the Utilization of Overdraft Facility.
4.4 UTILIZATION OF SHORT TERM WORKING CAPITAL FACILITY
4.4.1 Subject to Clauses 3.1 and Clause 3.2 and other conditions
specified in this Agreement or the Transaction Documents, on
any Banking Days during the Availability Period for Working
Capital Facility, the Borrower is entitled to utilize the
Short Term Working Capital Facility in Baht by executing the
Documents for the Utilization of Short Term Working Capital
Facility to IFCT no later than two (2) Banking Days before
that Utilization date for
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the Short Term Working Capital Facility and shall deliver a
Receipt to IFCT on each Utilization Date for Short Term
Working Capital Facility obtained from IFCT.
4.4.2 The maximum amount the Borrower is entitled to utilize the
Short Term Working Capital Facility from IFCT under this
Agreement is Baht 70,000,000 (Seventy Million Baht).
4.4.3 The maturity of each Short Term Working Capital Facility will
not exceed one hundred and twenty (120) days from the
Utilization Date and in any case shall not exceed the
Availability Period for Working Capital Facility unless IFCT
will agree otherwise.
4.4.4 The Borrower will issue and deliver Promissory Note to IFCT as
specified by IFCT in relation to the utilization of Short Term
Working Capital Facility in compliance with the conditions
specified by IFCT and/or the conditions specified in the
Documents for the Utilization of Short Term Working Capital
Facility.
4.4.5 The utilization of Short Term Working Capital Facility must be
renewed on a yearly basis in accordance with the conditions
specified by IFCT and/or the conditions specified in the
Documents for the Utilization of Short Term Working Capital
Facility.
4.4.6 Subject to the conditions of Clause 4.4.2, for any amount
drawndown by the Borrower under the Short Term Working Capital
Facility and has been prepaid or repaid by the Borrower, the
Borrower is entitled to drawdown such amount again under the
terms set forth by IFCT and/or the terms specified in the
Documents for the Utilization of Short Term Working Capital
Facility.
5. FEES AND INTEREST
5.1 LONG TERM FACILITY
5.1.1 FRONT END FEE FOR THE LONG TERM FACILITY
Within seven (7) days from the Effective Date of this
Agreement, the Borrower will pay the front end fee for the
Long Term Facility to IFCT for the amount of Baht 1,500,000
(One Million Five Hundred Thousand Baht) and to the Bank of
Ayudhya for the amount of Baht 1,450,000 (One Million Four
Hundred Fifty Thousand) by using bank checks of the commercial
bank which has its head office or branches in Bangkok
Metropolis and payable in the name of IFCT or Bank of Ayudhya.
5.1.2 INTEREST FOR THE LONG TERM FACILITY
The interest rate for the Loan in relation to the Long Term
Facility will be calculated as an annual rate specified by the
Facility Agent on the date of first drawdown date and on the
date the interest for the Long Term Facility has changed at
the following rate:
(1) From the first drawdown date until 23 April 2003 at
the rate of seven (7) percent per annum.
(2) From 24 April 2003 until 31 December 2005 at the rate
equal to Average MLR per annum.
For each Interest Period, the Borrower will pay interest for
the Loan under the Long Term Facility in compliance with the
conditions in this Agreement to the Facility Agent for the
benefit of the Long Term Creditors pursuant to its Proportion
of Debt by payment within 10:00 a.m. (Bangkok time) on the
last Banking Day of each month under the calendar year.
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5.2 PACKING CREDIT FACILITY
The interest rate for the Loan under Packing Credit Facility will be
calculated on an annual basis specified by the Facility Agent as Market
Rate.
For each Interest Period, the Borrower will pay such interest in
compliance with the conditions specified by each Packing Credit
Creditor in the Documents for the Utilization of Packing Credit
Facility of such Packing Credit Creditor. In case those documents do
not specify any specific condition on this, the Borrower will pay
interest on the last Banking Day of each month under the calendar year.
5.3 WORKING CAPITAL FACILITY
5.3.1 FRONT END FEE FOR THE WORKING CAPITAL FACILITY
Within seven (7) days from the Effective Date of this
Agreement, the Borrower will pay front end fee for the Working
Capital Facility to IFCT for the amount of Baht 350,000 (Three
Hundred Fifty Thousand Baht) and to Bank of Ayudhya for the
amount of Baht 50,000 (Fifty Thousand Baht). The payment of
front end fee in relation to the Working Capital Facility
shall be made by the Borrower by using similar method as the
payment of front end fee in relation to the Long Term Facility
as specified in Clause 5.1.1.
5.3.2 INTEREST FOR THE OVERDRAFT FACILITY
The Borrower will pay the interest for Overdraft Facility to
Bank of Ayudhya under this Agreement at the rate equal to MOR
of Bank of Ayudhya.
For each Interest Period, such interest will be paid pursuant
to the conditions specified by Bank of Ayudhya in the
Documents for the Utilization of Overdraft Facility on a
compound basis. In case those documents do not specify any
specific condition on this, the Borrower will pay interest on
the one day prior to the last Banking Day of each month under
the calendar year.
5.3.3 INTEREST FOR THE SHORT TERM WORKING CAPITAL FACILITY
The Borrower will pay interest for the Short Term Working
Capital Facility to IFCT under this Agreement at the rate
equal to MOR of IFCT.
For each Interest Period, such interest will be paid pursuant
to the terms specified by IFCT in the Documents for the
Utilization of Short Term Working Capital Facility. In case
those documents do not specify any specific condition on this,
the Borrower will pay interest on the last Banking Day of each
month under the calendar year.
5.4 THE CALCULATION OF INTEREST FOR ALL TYPES OF FACILITIES
Interest for all types of Facilities will be calculated on the basis of
actual number of days elapsed and a year of 365 days for the Facilities
in Baht and a year of 360 days for the Facilities in other foreign
currencies other than Baht.
5.5 FACILITY AGENT'S FEE AND SECURITY AGENT'S FEE
The Borrower will pay Facility Agent's Fee and Security Agent's Fee in
accordance with the conditions specified in the letter(s) between the
Facility Agent, Security Agent and Borrower dated 23 April 2001. The
Borrower will pay the Facility Agent's Fee and Security Agent's Fee
within seven (7) days from the Effective Date of this Agreement and
every anniversary thereof and shall be paid by using similar method as
the payments of other fees to the Creditor under Clause 5.1.1 of this
Agreement.
6. REPAYMENT AND PREPAYMENT
6.1 LONG TERM FACILITY
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6.1.1 The Borrower shall repay the Loan under the Long Term Facility
to each Long Term Creditor on the last Banking Day of March,
June, September and December (for the total 18 installments)
in accordance with Repayment Schedule commencing from 30
September 2001 onwards.
6.1.2 Before 10.00 a.m on each Repayment Date, the Borrower will
repay the Loan to the Facility Agent for the benefit of the
Long Term Creditors in accordance with the condition of Clause
6.1.1 and in compliance with the Repayment Schedule. In case
the Borrower does not utilize the whole amount of Long Term
Facility, the amount of Loan to be repaid by the Borrower on
each Repayment Date will be reduced in the inverse order of
maturity.
6.1.3 After the Borrower has repaid the Loan, the Borrower may not
utilize such repayment amount again.
6.1.4 The Borrower is entitled to prepay the Loan in relation to the
Long Term Facility in whole or in part on any Interest Payment
Date before the Repayment Schedule in compliance with the
following conditions:
(a) The Borrower has delivered the notice in writing
specifying the intention to prepay the Loan by
specifying the amount to be prepaid and the date of
such prepayment to the Facility Agent in advance no
later than thirty (30) Banking Days;
(b) Subject to Clause 7.1, the amount to be partially
prepaid will be in the amount of not less than
5,000,000 Baht (Five Million Baht) or the integral
multiple of 5,000,000 Baht (Five Million Baht);
(c) The Borrower shall prepay the Loan together with
interest calculated until the date of such prepayment
and any other amount which is due and payable under
this Agreement;
(d) The amount prepaid will firstly be used to pay the
expenses which are due under this Agreement. After
that it will be used to pay the fees and interest
which are due and payable and the Loan in the inverse
order of maturity;
(e) On each Prepayment Date, the Borrower agrees to pay
the prepayment fee equal to two percent (2%) of the
amount prepaid to the Facility Agent for the benefit
of the Long Term Creditors in compliance with their
Proportion of Debt in relation to the Long Term
Facility except in the case where the prepayment
money is obtained from the operation of the Borrower
or from the capital increase of the Borrower; in
which case the Borrower shall not be responsible to
pay the prepayment fee.
6.1.5 Any notices of prepayment given by the Borrower shall be
irrevocable and the Borrower shall be bound to make the
prepayment in accordance with such notice.
6.1.6 Except as otherwise clearly mentioned in this Agreement, the
Borrower is not entitled to prepay any or all part of the
Loan. The Loan which is prepaid shall not be available for
further drawdown.
6.2 REPAYMENT OF PACKING CREDIT FACILITY AND WORKING CAPITAL FACILITY
The Borrower shall comply with all the conditions specified in the
Documents for the Utilization of Packing Credit Facility, Documents for
the Utilization of Overdraft Facility, and the Documents for the
Utilization of Short Term Working Capital Facility or other relevant
documents or agreements
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and shall reduce Packing Credit Facility and all types of Working
Capital Facility to zero upon the expiry of Availability Period for
Packing Credit Facility or the Availability period for Working Capital
Facility (as the case may be).
7. PAYMENT
7.1 Except as otherwise expressly provided under this Agreement, on each
day on which any sum is due under this Agreement, the Borrower shall
make payment to the Creditors in Baht (or in other foreign currency (in
some cases) for the Packing Credit Facility) which may be utilized
immediately within that day within 10.00 a.m. Bangkok time by, for the
case of Long Term Facility, payment to the Facility Agent for the
benefit of the Creditors or payment directly to each Creditor in
accordance with their Proportion of Debt for Long Term Facility and for
the other types of Facilities, by direct payments to the Creditors for
such Facilities.
For Packing Credit Facility which is denomiated in other foreign
currency other than Baht, the Borrower hereby irrevocably waives any
rights it may have under Section 196 of the Civil and Commercial Code
of Thailand (or any modification or re-enactment thereof for the time
being in force) to make payment under the Packing Credit Facility in
Baht and shall make payment to the Packing Credit Creditors under the
terms and conditions specified in the Documents for the Utilization of
Packing Credit Facility.
7.2 The Borrower shall promptly upon demand by the Facility Agent make or
cause to make any evidence of debt to evidence the obligations of the
Borrower under this Agreement.
7.3 The Borrower agrees to be bound as each Creditor records in its book of
account and other records in the absence of manifest error.
7.4 Except as otherwise specified in this Agreement or the Transaction
Documents, if any due date for payment under this Agreement is on any
Banking Holidays such payment shall be extended to the next succeeding
Banking Day except in the case that the succeeding Banking Day is in
the subsequent month in which case the due date for the payment shall
be shortened to be on the last Banking Day of that month.
8. THE FACILITY AGENT, THE SECURITY AGENT AND THE CREDITORS
8.1 APPOINTMENT
(a) Each of the Creditors hereby appoints Bank of Ayudhya to act
as the Facility Agent of the Creditors and appoints IFCT as
the Security Agent of the Creditors and authorizes the
Facility Agent and Security Agent to act in compliance with
the terms of this Agreement and the Transaction Document on
behalf of the Creditors and/or the Borrower. In addition, the
Facility Agent and the Security Agent may perform its duties
under this Agreement and the Transaction Documents through
agent, employee or professional consultant;
(b) Each of the Creditors hereby appoints the Security Agent to
sign all the documents, instruments and agreements relating to
the Security on its behalf.
8.2 OBLIGATIONS OF THE FACILITY AGENT
The Facility Agent has the following duties:
(1) promptly inform each of the Creditors of the contents of any
notice, demand or document concerning this Agreement upon
receipt of such notice, demand or other document, including
inform the portions of each type of Facilities as notified by
the Borrower to the Facility Agent pursuant to Clause 11.1.15
on each of the first and sixteenth day of each month under the
calendar year.
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(2) promptly notify each of the Creditors of the occurrence of any
Event of Default in case
(a) any official of the Facility Agent who is directly
responsible for administration of this Agreement has
been notified by the Borrower, the Creditor or other
reliable source; or
(b) any official of the Facility Agent who is directly
responsible for administration of this Agreement
actually knows about such Event of Default.
(3) notify the Creditors about the status of the conditions
precedent as specified in Clause 3 as appropriate.
(4) subject to the terms and conditions of this Agreement, acts or
refrains from acting for the benefit of all the Creditors or
in accordance with instruction of the Creditors or Majority
Creditors.
(5) review and notify the report prepared by the Borrower in
relation to the drawdown of Facilities under this Agreement to
the other Creditors.
(6) inform the Borrower in advance of the amount of interest
and/or principal of the Long Term Facility which the Borrower
has to pay to the Long Term Creditors on each Interest Period
or Repayment Schedule.
8.3 RIGHTS OF THE FACILITY AGENT AND SECURITY AGENT
In performing its duties under this Agreement, the Facility Agent and
the Security Agent has the following rights:
(1) assume that no Event of Default and no prespective Event of
Default has occurred and the Borrower is not in breach of any
of its obligation under this Agreement unless and until it has
actual knowledge or has received actual notice under Clause
8.2 (2);
(2) rely upon the written notice, certificate, order or other
documents believed by it to be genuine and correct which are
duly signed by the Authorized Director or Authorized Officer
of the person preparing such notice, certificate, order and
document and shall not be liable to any other party under this
Agreement for any loss incurred as a result of such reliance
(other than in cases of its gross negligence or willful
misconduct); and
(3) engage and pay for the advice and services of any lawyer,
accountant, advisor independent appraiser or valuer or other
professional advisor or expert as it may consider necessary,
expedient or desirable upon consent by the Creditors and rely
on and act upon such advice so obtained.
(4) the time frame for the performance of obligations of the
Facility Agent shall be the period commencing from the
Effective Date of this Agreement and expiring on the later of
(a) five (5) years from such date and (b) the date the
Borrower has paid the Debt under this Agreement and the
Transaction Documents in full while the Security Agent shall
perform its obligations until the Creditors have received the
payment of Debt under their respective Proportion of Debt in
full from the Borrower.
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8.4 INDEMNITY
The Creditors agree to reimburse and indemnify the Facility Agent or
Security Agent in accordance with their respective Commitment
Percentages to the extent not actually reimbursed by the Borrower from
and against all liabilities of claims or proceeding resulting from the
performance by the Facility Agent or Security Agent under this
Agreement or which is advance or expenses incurred by the Facility
Agent or Security Agent for any enforcement or preservation of the
rights of the Creditors under this Agreement or the Transaction
Documents provided that no Creditor shall be liable for any such
liabilities resulting from the gross negligence or willful misconduct
of the Facility Agent or Security Agent.
8.5 BEFORE THE DECLARATION OF AN EVENT OF DEFAULT
Before declaring any or all of the debts of the Borrower to be
immediately due and enforceable pursuant to Clause 12.2 of this
Agreement, the Facility Agent will consult with the Creditors and act
in compliance with the unanimous instruction of the Creditors. The
Creditors agree to reimburse any loss to the Facility Agent and will
protect the Facility Agent from the claims, damages, penalty and other
expenses of whatsoever nature which have been claimed from the Facility
Agent or as the Facility Agent may have to suffer or be responsible
from any act performed by the Facility Agent in the capacity of the
Facility Agent in accordance with the Commitment Percentage of the
Creditors under this Agreement.
8.6 DISTRIBUTE OF THE PROCEEDS AMONG THE CREDITORS
Subject to Clause 14, the Facility Agent or Security Agent (as the case
may be) shall, as soon as practicable, distribute the proceeds which is
the part of each Creditor to each Creditor in accordance with the
Proportion of Debt in the principal, interest, fee and other types of
money actually received by the Facility Agent or Security Agent (as the
case may be) from the Borrower on behalf of the Creditors in accordance
with such part of Facility in which such Creditor has some stake in. If
such money is not sufficient to be distributed among the Creditors,
each Creditor will receive such part of money in accordance with its
Proportion of Debt.
8.7 THE RIGHTS AND POWER OF THE FACILITY AGENT AND THE SECURITY AGENT AS
ONE OF THE CREDITOR
As the Facility Agent and the Security Agent are Creditors which is
obligated to perform in compliance with this Agreement, the Facility
Agent and the Security Agent has the right and power under this
Agreement the same as other Creditor and has the right and obligation
as if they are not Facility Agent or Security Agent. The term
"Creditor" or "Creditors" shall include the Facility Agent and the
Security Agent as one of the Creditors except as expressly provided
otherwise in this Agreement.
8.8 THE OBLIGATIONS OF EACH CREDITOR
The obligations of each Creditor under this Agreement are several and
no Creditor shall be responsible for the obligations of the other
Creditor under this Agreement and the failure of any Creditor to
perform any of its obligations under this Agreement shall not be deemed
to release other Creditor from its obligation to perform under this
Agreement.
8.9 RESIGNATION AND TERMINATION OF FACILITY AGENT OR SECURITY AGENT
The Facility Agent or Security Agent may resign at any times and the
Creditors may terminate the Facility Agent or Security Agent by giving
written notice to the Creditors and the Borrower in
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advance at least sixty (60) days from the date the Facility Agent or
the Security Agent intends to resign or from the date for such
termination and the Creditors shall perform the obligations of the
Facility Agent or Security Agent until there is any appointment of the
substituted Facility Agent or Security Agent.
The new Facility Agent or Security Agent shall have all the rights,
powers and obligations of the resigned or terminated Facility Agent or
Security Agent and the resigned Facility Agent or Security Agent will
be released from all the obligations and commitments as the Facility
Agent or Security Agent under this Agreement immediately upon the
appointment of the new Facility Agent or Security Agent.
9. CHANGE IN CIRCUMSTANCES
9.1 UNLAWFULNESS OR IMPRACTICALITY
Upon the occurrence of any of the following events:
9.1.1 any enactment or change in laws or regulations or any change
in interpretation or application of any laws or regulations
resulting in any part of this Agreement and/or the entering
into this Agreement of any Creditor is illegal or not in full
force and effect;
9.1.2 any compliance in good faith by any Creditor with any
applicable instruction (whether or not having force of laws)
of the Bank of Thailand, government agency or authority made
it impracticable for that Creditor to perform any condition of
this Agreement.
In such event, that Creditor will inform the Facility Agent and the
Borrower of the event in which case the obligations of such Creditor
whether in whole or in part will be terminated and the Borrower will
repay the debt which is affected in full immediately or provide
additional security for the debt which is not due and enforcable in
compliance with the form specified by the Facility Agent upon request
by the Facility Agent for the benefit of that Creditor.
9.2 INCREASED COST
9.2.1 In the event that
(a) any enactment or change in laws or regulation or any
change in the interpretation or application of any
laws or regulation; or
(b) any compliance in good faith by a Creditor with any
applicable instruction (whether or not having the
force of laws) of the Bank of Thailand, any other
governmental agency or authority shall
(1) increase the cost of any Creditor to perform
under this Agreement and/or
(2) reduce any interest, fee or any payment
received or receivable by that Creditor
under this Agreement.
In this circumstance, the Borrower shall perform as follows:
(a) The Borrower shall pay additional amount as the
Creditor specified as necessary to compensate it for
such increased cost or to compensate for the amount
of interest, fees or other payment which the Creditor
is entitled to receive under this
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Agreement equal to the shortfall of such amount to
that Creditor upon request by such Creditor; and
(b) After the Borrower has received such notification to
pay the money under such Clause (a), there is still
additional cost or there is still an event the result
of which will reduce the interest, fee or other
payment entitled by such Creditor under this
Agreement, the Borrower may select to pay the
relevant part of Debt which is affected in full by
acting in compliance with the condition set froth
Clause 9.1.
9.2.2 After the occurrence of the event pursuant to Clause 9.2.1,
the Creditor is entitled to demand the Borrower to pay the
debt under this Clause at any time even after the settlement
of debt under this Agreement (except the debt under this
Clause) in full.
9.3 CHANGE IN BASIS FOR INTEREST OR FEE CALCULATION
9.3.1 At any times, if
(a) the Facility Agent or any Creditor considers that
there is any event which effect the money market in
general and there is no proper method to determine
the fees or interest under Clause 5; or
(b) The Facility Agent is notified by any Creditor that
there is no determination of Average MLR or MOR or
Market Rate any longer, the Facility Agent shall give
notice of such determination to the Creditors and the
Borrower within seven (7) days from the date of such
event or from the date of notification by the
Facility Agent (as the case may be).
9.3.2 After the giving of a notice pursuant to Clause 9.3.1 last
paragraph, the Borrower and the Creditors shall enter into
negotiation in good faith with a view to agreeing upon and
alternative basis for the calculation of interest, fee,
Interest Period and Interest Payment Date and other relevant
conditions (hereinafter referred to as "Substituted Basis of
Financing").
9.3.3 If the Creditors and the Borrower can agree in writing for the
Substituted Basis of Financing within thirty (30) days from
the date of notification by the relevant notification pursuant
to Clause 9.3.1 last paragraph, such basis shall take effect
in accordance with its terms.
9.3.4 If no Substituted Basis of Financing is agreed upon within
thirty (30) days from the date of notification or the
Creditors determine that the Agreement on the Substituted
Basis of Financing cannot be completed prior to the expiry of
such period, the parties agree to perform in compliance with
the following conditions:
(a) The Creditors have the right to require the Borrower
to pay the affected part of the Facility by sending
notice in advance specifying the date for such
prepayment within thirty (30) days from the date of
notification to the Borrower. In such case, the
Borrower will repay the affected part of the Facility
together with interest accrued thereon [in case there
is no determination of Average MLR, MOR or Market
Rate (as the case may be) the last available rate
applicable thereto will be used] on the calculation
of the interest which is due or payable and other
amount of money which is due and payable to the
Creditors within the time specified therein; and
(b) In any case, so long as the circumstances referred to
in Clause 9.3.1 (a) or (b) shall continue and the
Facility Agent have sent the notification of such
event, the Borrower is entitled to repay the affected
part of Facility in full to the Creditors
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together with the interest [in case there is no
determination of Average MLR, MOR or Market Rate (as
the case may be) the last available interest rate
will be used] and other amount due under this
Agreement without having to pay the penalty fine.
9.3.5 Upon the occurrence of the event pursuant to Clause 9.3.1 and
there is no agreement on the Substituted Basis of Financing,
the interest shall be calculated at the annual rate which is
equal to the aggregate of (1) the per annum interest rate
determined by the Creditors from time to time and (2) the
average interest provided by the Creditor to the prime
customers as the substitution for Average MLR, MOR or Market
Rate (as the case may be) provided the Borrower will pay such
interest calculating from the last day of interest period
designated by the Facility Agent from time to time.
9.3.6 If there is a notification pursuant to Clause 9.3.1 before the
utilization of any Facility, the Borrower is not entitled to
utilize such Facility except the Substituted Basis of
Financing have been agreed upon.
10. REPRESENTATIONS AND WARRANTIES
10.1 THE BORROWER REPRESENTS AND WARRANTS TO THE FACILITY AGENT, THE
SECURITY AGENT AND THE CREDITORS THAT:
10.1.1 The Borrower is a limited company registered under Thai laws
and has the registered office at the address mentioned above
and has the branch offices as specified in the affidavit. The
Borrower is authorized or registered to conduct the business
in Thailand and has power to hold titles to all of its assets
(including Equipment, Land and Buildings). The Borrower has
the right to operate its business operation or has the plan to
operate in the future.
10.1.2 The Borrower has the right and power to perform in accordance
with this Agreement and the Transaction Documents and has
taken all necessary actions to authorize the execution of this
Agreement and the Transaction Documents.
10.1.3 The Borrower has obtained the authorization from any
governmental agency, competent authority and other related
persons for or in connection with the execution and
performance of this Agreement and the Transaction Documents
and under the Project.
10.1.4 The execution of this Agreement and the Transaction Documents
or the performance by the Borrower of its obligations under
this Agreement and the Transaction Documents do not and shall
not:
(a) contravene or contradict to the terms, conditions,
representations, contracts, agreements, laws or
regulations binding on the Borrower.
(b) contravene any restrictions on the power to borrow
money, incur indebtedness or any other authorities of
the Borrower.
(c) result in incurring any encumbrances on all or any
part of its assets or income for the benefit of any
other persons other than the Creditors under this
Agreement or result in the Borrower being in default
or breach any document or agreement in which the
Borrower is a party or the assets of the Borrower
have to be encumbered other than for the benefit of
the Creditors under this Agreement.
10.1.5 The Borrower has taken all necessary actions according to the
laws to authorized the Authorized Director and/or the
Authorized Officer to execute and deliver this Agreement and
each of the Transaction Documents to which the Borrower is a
party including any documents, instruments and contracts
necessary to be executed according to such agreements.
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10.1.6 This Agreement and the Transaction Documents (whether or not
existing on the date of this Agreement) constitute legal,
valid and binding obligations of the Borrower and each person
entered into the said Agreement and the Transaction Documents.
10.1.7 No litigation or arbitration proceeding is pending and no case
is under the consideration of any administrative bureaus and
no prospective litigation against the Borrower or to enforce
on assets or rights of the Borrower; provided that the result
of such litigation, arbitration or proceeding may materially
and adversely affect the business operation under the Project,
assets, debts or status (financial or otherwise) of the
Borrower or the Borrower's ability to perform its obligations
under this Agreement and the Transaction Documents.
10.1.8 The Borrower has not done any acts against the laws or as
required by laws, regulations, orders, agreements,
representations, instruments, preferential rights,
concessions, permits, licenses, authorizations, obligations,
or any duties binding on the Borrower or its assets or incomes
provided that the result of any acts against the laws or as
required by laws of the Borrower may materially affect the
business operation under the Project, assets, debts or status
(financial or otherwise) of the Borrower or the Borrower's
ability to perform its obligations under the Agreement and the
Transaction Documents and no Events of Default occurred and
still in existence.
10.1.9 The Borrower is not adjudicated bankrupt, under the
receivership or insolvent or any court procedures, resolutions
or application for bankruptcy has been taken or filed for the
order of bankruptcy, control of assets, debt restructure,
dissolution, liquidation of the borrower or a receiver,
administrator, planner, plan administrator or similar officers
is appointed or under the procedure of business rehabilitation
in the Court according to the Bankruptcy law.
10.1.9 No guarantee agreement issued by the Borrower in favor of
Xxxxx Fargo Bank and/or U.S. Bank or any other bank to
guarantee the debt of the Guarantor.
10.1.10 The Borrower represent and warrant that the conditions under
Clause 10.1.3, 10.1.4,10.1.6,10.1.7,10.1.8 and 10.1.9 shall be
deemed to constitute the representations and warranties of the
Guarantor.
10.2 The representations and warranties in Clauses 10.1.1 to 10.1.11 are the
representations and warranties of the Borrower to the Facility Agent,
Security Agent and Creditors made on the Effective Date of this
Agreement and still be in full force and effect after the Effective
Date of this Agreement until the Creditors have received payment for
the Debt in full.
11. AFFIRMATIVE COVENANTS AND NEGATIVE COVENANTS
11.1 GENERAL AFFIRMATIVE COVENANTS
The Borrower agrees with the Facility Agent, the Security Agent and the
Creditors that as long as any debt under this Agreement and/or
Transaction Documents is outstanding, the Borrower covenants that it
shall:
11.1.1 promptly on reasonable request from the Creditors, provides
the Creditors through the Facility Agent the statement and
other information relating to its operation, asset, condition
(financial or otherwise), Project, business plan or status of
the Borrower as the Creditors may require from time to time
with appropriate reason, including the report on the change of
structure or shareholder of the Borrower or change in control
of the Guarantor and the details relating to Director and
authorization of the Director of the Borrower. In case there
is any change of the structure or shareholder of the Borrower
or change in control of the Guarantor or the details relating
to Directors and/or authorization of the Director of the
Borrower, the Borrower must receive the written consent from
the Creditors in advance. For the purpose of this Clause
11.1.1, the term "control" means the power, whether directly
or indirectly, to order or designate the management or
policies of a company whether by being the holder of voting
shares, by contract or otherwise.
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11.1.2 the Borrower shall promptly notify the Facility Agent about
the following matters (together with all the relevant details)
(a) the occurrence of any Event of Default;
(b) the occurrence of any current litigation, arbitration
or administrative proceeding or which is pending or
where any person expressly shows its intention to xxx
the Borrower or the Guarantor or to enforce the
assets or rights of the Borrower or the Guarantor
under any law;
(c) the commencement by the Borrower or the Guarantor of
any negotiation with any other creditors of the
Borrower or the Guarantor apart from the Creditors
for the restructure of any debt of the Borrower or
the Guarantor;
(d) the dispute between the Borrower or the Guarantor and
any governmental authorities with respect to the
payment of taxes or any matter where in any such case
the dispute if resolved adversely to the Borrower or
the Guarantor would be materially and adversely
affect the operation, business, asset, debt or
condition (financial or otherwise) of the Borrower or
the Guarantor or the ability of the Borrower or the
Guarantor to perform its obligation of the Borrower
or the Guarantor under this Agreement or the
Transaction Documents or any financial document
executed by the Guarantor with U.S. Bank or Xxxxx
Fargo Bank or any financial institution or any other
document with any third party; and
(e) any change in the personnel who is authorized to
sign, certify true and correct and deliver notice and
document or instrument as specified in this Agreement
on behalf of the Borrower.
11.1.3 The Borrower shall ensure that the obligation of the Borrower
under this Agreement and/or the Transaction Documents at all
time rank at least PARRI PASSU with all other obligations of
the Borrower at all time except for preferential rights
arising by operation of the laws of Thailand.
11.1.4 The Borrower shall pay all taxes upon and of the assets,
revenue or income or profit of the Borrower before the same
shall become overdue and shall pay or cause to be paid any
money in compliance with the lawful claims in whatsoever
nature which is the claim where the non-payment of which may
result in the encumbrance over the asset, revenue, income or
profit of the Borrower or any other preferential rights except
where (1) taxes or money is being contested in good faith by
proper proceeding and (2) such reserve or provision as may be
required by generally accepted accounting principal and taxes
shall have been made therefore.
11.1.5 The Borrower shall maintain the assets, Equipment and
appliances in the Project of the Borrower in the good
maintenance status, operational and in good condition and will
repair, change and improve the asset, Equipment and appliance
as necessary and appropriate from time to time.
11.1.6 The Borrower agrees to deliver the following documents to the
Facility Agent
(a) as soon as they are available (but in event within
one hundred and twenty (120) days) after the end of
each fiscal year of the Borrower and the Guarantor
after the Effective Date of this Agreement, copies
of the Financial Statements of the Borrower and the
Guarantor for each fiscal year equal to the number of
the Creditors and ensure in each case that they were
prepared in accordance with accounting principles and
practices generally acceptable in Thailand (in the
case of the Borrower) or in the United States of
America (in
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the case of the Guarantor) and gives in conjunction
with the notes thereto including the note on changes
in the accounting principles and practices (1)
financial condition of the Borrower and the Guarantor
on the date of such Financial Statements and (2) the
result of the operation of the Borrower and the
Guarantor for the period to which they relate, having
been prepared with due care and diligence and were
audited by Auditor acceptable to the Creditors;
(b) as soon as they are available, (but in any event
within forty five (45) days) after the end of each of
the three (3) months period after the Effective Date
of this Agreement, copies of unaudited quarterly
financial statements of the Borrower and the
Guarantor for such quarterly financial period
together with the cashflow statements and sources and
uses of funds in respect of such periods for the
number enough for all the Creditors having ensured
that they were prepared in accordance with accounting
principles and practices generally acceptable in
Thailand (in the case of the Borrower) or in the
United States of America (in the case of the
Guarantor) and gives in conjunction with the notes
thereto including the notes on changes in the
application of an accounting principles and practices
(1) the financial condition of the Borrower or the
Guarantor as of the last day of such financial period
and (2) the result of the operation of the Borrower
or the Guarantor for the period of which they relate,
having been prepared with the due care and diligence,
in the case of the Borrower or accepted by U.S. Bank,
Xxxxx Fargo Bank or any other creditors of the
Guarantor, in case of the Guarantor;
(c) simultaneously with the delivery of Financial
Statements for the three (3) month period of the
Borrower or the Guarantor pursuant to subclause (b)
above, the Borrower or the Guarantor shall deliver
certificate signed by its Authorized Director or
Authorized Officer certifying on the date of such
certification that (which must be dated not more than
ten (10) days before the date of delivery to the
Facility Agent) no Event of Default from the latest
submission of such certification under this subclause
(c) (or from the Effective Date of this Agreement for
the first submission of this certificate) or if such
certification cannot be made, the Borrower or the
Guarantor will specify the details of the Event of
Default which has happened together with all the
details of the things that the Borrower or the
Guarantor has made or proposed to be done to remedy
such Event of Default or status or other surrounding
circumstances.
11.1.7 The Borrower shall duly and punctually perform and observe all
terms, covenants and conditions on its part to be performed
and observed under each of the documents to which the Borrower
is or will be the party and not offer or agree to enter into
any agreement to amend or cancel any of the Transaction
Documents the Facility Agent considers to be material and
shall proceed to ensure that the Transaction Documents are in
full force and effect.
11.1.8 The Borrower shall obtain and maintain all authorization and
privileges from any governmental authority, bureau, agency or
other person in Thailand or other places as necessary in
connection with the execution, delivery or performance of the
Transaction Documents or related to the operation of the
Borrower or the Project of the Borrower.
11.1.9 The Borrower shall notify the Facility Agent in writing of the
litigation or proceeding in court or other authority with
resulting in the prohibition or obstruction to the performance
of the Borrower under this Agreement or the Transaction
Documents or affect the validity and enforceability of this
Agreement or the Transaction Documents as soon as practicable.
11.1.10 The Borrower shall allow the Facility Agent, the Security
Agent, the Creditors or the representatives of such persons to
during business hours examine the operation of the Borrower
including all documents which, in the opinion of the Facility
Agent, the Security
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Agent, the Creditors or the representatives of such person
consider to be related to the business operation of the
Borrower and the Board of Directors of the Borrower shall
strictly follow the advice and suggestion of the Facility
Agent, the Security Agent, the Creditors or the
representatives of such persons in relation to the
preservation of their rights over all or any part of the
Security or assets of the Borrower and will ensure as
necessary that the said advice and/or suggestion must be
approved by the shareholders of the Borrower with enough
majority votes pursuant to the Articles of Association of the
Borrower to make that advice and/or suggestion operational in
the event that according to the Articles of Association of the
Borrower such action requires approval from the shareholders
of the Borrower.
11.1.11 The Borrower shall arrange to increase the registered capital
so that the registered capital and the paid-up capital of the
Borrower shall be no less than Baht 735,000,000 (Seven Hundred
Thirty Five Million Baht) within 31 December 2001 and shall
ensure that the capital increase shall not affect the
privileges under the Investment Promotion Certificate issued
by the Board of Investment of the Borrower. In addition, the
Borrower must arrange to deposit the shares resulting from
such capital increase to the possession of the Escrow Agent in
the form and substance satisfactory to the Creditors until the
Debt of the Borrower under this Agreement and the Transaction
Documents shall be paid in full.
11.1.12 The Borrower shall maintain:
(a) the ratio of Aggregate Debt to Equity at the rate of
not exceeding 3:1 as long as there is any Debt under
this Agreement and/or Transaction Documents
outstanding.
(b) the ratio of all Long Term Debts to Equity at the
rate of not exceeding 2:1 as long as there is any
Debt under this Agreement and/or Transaction
Documents outstanding.
11.1.13 The Borrower shall arrange for the Guarantor to support the
Project throughout the term of this Agreement which includes
the support in raw materials, and other necessary tools and
appliances and the marketing for the Project.
11.1.14 The Borrower shall arrange for (a) the Guarantor to control
whether directly or indirectly the operation of the Borrower
and hold the shares in the Borrower whether directly or
through any of the Innovex Group Companies not less than 99.99
percent of the paid-up capital and (b) the Guarantor which is
the ultimate parent company to hold the shares in the last
layer in the Borrower to be the controller of the business of
the Borrower and the Borrower agrees to provide comfort to the
Creditors that throughout the term of this Agreement (1) there
will be no change in control in the Borrower in a way which
results in the Guarantor having no control over the Borrower
whether directly or through any of the Innovex Group
Companies, and (2) apart from the change of control in the
Borrower as aforesaid, there will be no similar kind of change
in control in the Guarantor. For the purpose of this Clause
11.1.14, the term "control" means the power, whether directly
or indirectly, to order or designate the management or
policies of a company whether by being the holder of voting
shares, by contract or otherwise.
11.1.15 The Borrower shall inform the portions of each type of
Facilities drawndown by the Borrower under this Agreement
and/or the Transaction Documents to the Facility Agent in the
form and substance satisfactory to the Facility Agent on each
of the first and sixteenth day of each month under the
calendar year.
11.1.16 The Borrower agrees that the Security currently held by the
Creditors is the Security which has preferential rights which
are valid and enforceable under the Thai law.
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11.2 COVENANT IN RELATION TO INSURANCE
Throughout the term of this Agreement, the Borrower agrees to perform
in accordance with the following matters:
11.2.1 The Borrower shall obtain and maintain and/or arrange to
obtain and maintain insurance on the Building, Equipment,
stocks and other assets relating to the Project of the
Borrower in the insurable amount not less than the aggregate
commitments of the Creditors under this Agreement and the
Transaction Documents including third party liabilities
insurances which insurances will be the type of All Risks
insurance in compliance with the terms, conditions and within
the time the Creditors consider appropriate in which case, the
Borrower shall designate the Creditors to be the casualty
insurance agent as specified by the Creditors with the
insurance company acceptable to the Creditors and at the
amount acceptable to the Creditors and will designate the
Creditors as sole beneficiary of such insurances.
11.2.2 In the event the Creditors determine that the insurance
effected and maintained pursuant to this sub-clause will not
at any time adequately cover the interest of the Creditors
under this Agreement or the Transaction Documents, the
Creditors may notify the Borrower to arrange the additional
insurance or change the insurance company and the Borrower (as
the case may be) shall comply with the request of the
Creditors at its own expenses and the conditions for such
insurance and the benefits shall be in compliance with Clause
11.2.1.
11.2.3 The Borrower shall delivery or arrange to deliver the original
of all insurance policies or cover notes pursuant to the
condition of Clause 11.2.1 above to the Security Agent as soon
as practicable.
11.2.4 The Borrower shall promptly pay all premiums (or installment
thereof) in respect of each of the policy of insurances
promptly and within the due date and produce copy of receipt
in respect of payment of such premiums (or installment thereof
) or other evidence of such payment to the Security Agent as
accepted by the Security Agent in its own discretion within
fourteen (14) days from the date of payment and in case of
renewal of such policy produce to the Security Agent the
evidence of each such renewal no later than the date of expiry
of such policy and pay the renewal and other premiums (and
installment thereof) as required by the term of such policy
and shall promptly produce such evidence of payment to the
Security Agent and in case the Borrower fails to pay insurance
premiums (or installment thereof) in time the Creditor may pay
such premiums (or installment thereof) in accordance with the
Commitment Percentage on behalf of the Borrower in which case
the Borrower will repay such amount to the Creditors promptly
upon demand by the Creditors with interest at the Default
Interest Rate.
11.2.5 The Borrower shall do all things necessary and provide all
documents, evidence and information and/or assist the Security
Agent to collect or recover any money which becomes due and
payable to the Security Agent or Creditors in respect of the
insurances referred to in this Agreement.
11.2.6 The Borrower shall send notice to the Security Agent of the
occurrence of the loss under the insurance policy together
with details of the same.
11.3 NEGATIVE COVENANT
The Borrower covenants with the Facility Agent, the Security Agent and
the Creditors that as long as there is any Debt under this Agreement
and/or Transaction Documents outstanding, the Borrower shall not
without prior written consent of the Creditors perform any of the
following acts:
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11.3.1 The Borrower shall not merge or consolidate with or into any
other person or perform any act which have the feature and
consequence similar to merger or acquisition or take any step
with a view to dissolution, liquidation or winding-up.
11.3.2 The Borrower shall not make any substantial change or
alteration in the nature of the business or Project in which
the Borrower is currently operating.
11.3.3 The Borrower shall not sell, transfer, lend, lease or dispose
of the operation or asset or fixed asset of the Borrower
whether in whole or in part including not enter into any
securitization except in the ordinary course of business of
the Borrower or guarantee any debt of any of the Innovex Group
Companies and/or the Guarantor.
11.3.4 Except the performance under this Agreement and the
Transaction Documents, the Borrower shall not incur or
maintain any obligation, debt or encumbrance by borrowing from
any person (including each Creditor under this Agreement) or
lending to any person or giving guarantee or other means
except
(a) The borrowing from any of the Innovex Group Companies
(including the Guarantor of the Borrower) in the
subordinated nature, namely having the right for the
payment of debt after the Creditors receive all the
payment of Debt under this Agreement and Transaction
Documents in full; or
(b) The debt incurred in the ordinary course of business
of the Borrower.
11.3.5 The Borrower shall not transfer its rights or revenues or
income and shall not pay any Creditor under this Agreement
otherwise than pursuant to the methods specified in this
Agreement or Transaction Documents.
11.3.6 Except for the Security provided to the Creditors prior to the
Effective Date of this Agreement or pursuant to the condition
of this Agreement or the Transaction Documents, the Borrower
shall not incur or allow any lien, mortgage, pledge or
encumbrances, option, preferential rights (except preferential
rights created by operation of laws) assignment or transfer by
way of security, deposit asset as security, trust receipt, any
agreement allowing one Creditor to have any rights over other
Creditors, securitization, benefit as the seller, lessee,
purchaser or lessor pursuant to the conditional purchase and
sale agreement, hire purchase, leasing (except commercial
lease of the appliances, stationary in the office, factory and
car in the normal business operation) installment agreement or
agreement with right for ownership retention in whatsoever
nature existing over the security, revenue or right whether in
whole or any part of the Borrower relating to the operating of
the business pursuant to the Project of the Borrower except
items designated by this Agreement for the benefit of the
Creditors or any Creditor and will not allow any person to
utilize the asset of the Borrower relating to the operation of
the Project of the Borrower and the Security; and
11.3.7 The Borrower shall not pay dividend, interest or any money
according to the loan agreement or any other type of agreement
to the shareholders or Innovex Group Companies and/or
Directors except with prior written consent from the
Creditors.
11.3.8 Throughout the term of this Agreement, the Borrower shall
arrange to prohibit the Guarantor to incur additional debt
whether with U.S. Bank, Xxxxx Fargo Bank or any other creditor
in excess of the credit line of the Guarantor which is
currently the aggregate principal amount of US$ 37,000,000
(Thirty Seven Million United States Dollar).
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12. EVENT OF DEFAULT
12.1 Each of the following events shall be an Event of Default unless the
Creditors agree in writing in advance that it is not an Event of
Default.
12.1.1 The Borrower fails to pay any sums due hereunder and/or under
the Transaction Documents on the due date pursuant to the
terms of this Agreement and/or Transaction Documents.
12.1.2 The Borrower fails to perform or observe any of its other
obligations under this Agreement and/or the Transaction
Documents for whatsoever reason and such failure the Facility
Agent considers that it is not remediable.
12.1.3 Apart from the events under Clauses 12.1.1 and 12.1.2 of this
Agreement, the Borrower fails to perform or observe any of its
other obligations under this Agreement and/or the Transaction
Documents for whatsoever reason and such failure the Facility
Agent considers it is capable of remedy but that failure has
not been remedied within thirty (30) days from the earlier of
(a) the date on which the Borrower becomes aware or with the
exercise of reasonable diligence to have become aware of such
failure or (b) the date upon which the written notice of such
failure is given to the Borrower by the Facility Agent.
12.1.4 Any representation or warranty given by the Borrower under
this Agreement or the Transaction Documents is not true, or
proves to have been untrue, incorrect or misleading in any
material respect or the Borrower fails to comply with any of
the affirmative and negative covenants as specified in Clause
11 which the Facility Agent considers to be material.
12.1.5 (a) any indebtedness of the Borrower or the Guarantor becomes
due and payable prior to its stated majority or (b) any
indebtedness of the Borrower or the Guarantor which is payable
on demand or after the notice is not paid on demand or on the
expiry of due notice (as the case may be) or (c) the Borrower
or the Guarantor defaults in the payment of any indebtedness
(or upon the expiration of the any applicable grace period) or
(d) any guarantee or indemnity of the Borrower or the
Guarantor is not honor when due or demanded or (e) steps are
taken to enforce any encumbrances or other security of the
Borrower or the Guarantor given in respect of its liability or
liability of any other persons.
12.1.6 Any of the authorization, permit or consent referred to in
Clause 9 of Attachment 5 is modified or restricted in the
nature which is not acceptable to the Creditors or revoked,
withdrawn, suspended, terminated or expire whether in whole or
in part or is not renewed or extended or not in full force and
effect in whatsoever nature or there is any promulgate,
announcement, cancellation or revocation or change in laws or
regulations or orders the result of which is the suspension,
change, cancel or except the performance of the obligation of
the Borrower under the Transaction Documents whether in whole
or in part.
12.1.7 The Transaction Documents or any part of the Transaction
Documents cease to be in full force and effect at any time and
for whatever reason (except the expiration on the maturity or
the relevant parties have completed all the obligations under
the Agreement) or announce to be void or reject or ineffective
or the Borrower or any person oppose to the completion or
effectiveness of the Transaction Documents at any time or the
Borrower rejects that it has any obligation or commitment
under the Transaction Documents.
12.1.8 Any action, proceeding or litigation is instituted in any
courts or authorities to prohibit or sustain the performance
of the Borrower under this Agreement or the Transaction
Documents in whatsoever nature which affects the legality,
completeness, binding effect or enforceability of the
Transaction Documents.
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12.1.9 The performance of the Borrower or other person under the
Transaction Documents or the utilization by any Creditor of
its rights under this Agreement or the Transaction Document is
impossible or illegal.
12.1.10 The Borrower ceases or demonstrates the possibility of ceasing
of the operation of the Borrower which is material or the
Borrower disposes of its operation or assets in whole or in
any material part.
12.1.11 The Borrower or the Guarantor enters into any agreements with
any other creditors apart from the Creditors or be adjudicated
bankrupt or insolvent upon prove that the Borrower or the
Guarantor has more debts than assets, enter into receivership,
or transfer the rights for the benefit of its Creditor or
similar proceeding is instituted or any dissolution is made
for the issuance of the order in relation to the business
rehabilitation, bankruptcy, receivership, winding-up, dissolve
of operation, corporate restructuring or debt restructuring or
rehabilitation of the Borrower or the Guarantor, the
winding-up or any acts in similar nature relating to the
Borrower or the Guarantor under the Thai law or other law or
there is any appointment of Official Receiver, administrator,
planner, plan administrator or official of similar nature or
any administrator of the encumbrancer takes possession of all
or part of assets of the Borrower or the Guarantor or there is
any judgment or execution order of the similar nature for
whatsoever over all or part of the assets of the Borrower or
the Guarantor.
12.1.12 Any law or regulation or order is enacted, promulgated or made
or governmental action is taken or proceedings instituted for
the winding-up, liquidation, rehabilitation or restructuring
of the structure of the Borrower or the Guarantor or for the
suspension or revocation of any substantial part of the
Borrower's or the Guarantor's operations or for
nationalization of the property or assets, seizure,
expropriation or suspension of any material part of the assets
of the Borrower or the Guarantor or any such person considers
it appropriate to restrain the control of the assets of the
Borrower or the Guarantor from normal managerial control over
all or any substantial part of property or asset of the
Borrower or the Guarantor or
12.1.13 Any situation shall occur which in the opinion of the
Creditors or there is reasonable ground to believe that a
material adverse change in the operations, assets, debts or
status (financial or otherwise) of the Borrower has occurred
or there is any justifiable ground to believe that the event
may have a material adverse affect to the ability of the
Borrower to perform the obligations of the Borrower under this
Agreement and the Transaction Documents.
12.2 Subject to the terms and conditions of this Agreement, upon the
happening of any Event of Default, the Facility Agent or Security Agent
(as the case may be) shall perform the following acts whether in whole
or in part at any time after such Event of Default by issuing the
written notification to the Borrower and the Guarantor without
prejudice to any other available rights and remedies the Creditors may
have:
12.2.1 declare or accelerate all or part of the indebtedness together
with the fees, and other money to be paid under this Agreement
and or the Transaction Documents to be immediately due and
payable without further demand, notice or legal formality of
any kind. In such case, the Borrower shall be responsible to
pay such Debt including interest to the Creditors.
12.2.2 declare all part of the Facility terminated where upon the
obligation of the Creditors to provide the Facility under this
Agreement or Transaction Documents shall immediately
terminate.
12.2.3 Enforce the Security or enforce the rights or remedies as
specified in the Transaction Documents.
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12.3 DEFAULT INTEREST
12.3.1 If the Borrower fails to pay when due any money payable under
this Agreement and/or the Transaction Documents on the due
date under this Agreement and/or the Transaction Documents,
the Borrower must pay (to the extent possible under the laws)
the interest for the principal of the Facility which is due
and payable by the Borrower to the Creditors from and
including the date of default until the date of actual payment
(both after and before the judgment) at the Default Interest
Rate each Creditor is entitled to collect from loan from the
date of default until the Borrower repays such debt in full.
12.3.2 The Default Interest Rate determined from time to time
pursuant to Clause 12.3.1 of this sub-clause will be
calculated on the basis of actual number of day elapsed and a
year of three hundred sixty five (365) days for the Facilities
in Baht and a year of three hundred and sixty (360) days for
the Facilities in any other foreign currency other than Baht
and shall be payable from time to time upon written demand
from the Facility Agent, the Security Agent or the Creditors
and the certificate of the Facility Agent or the Security
Agent in relation to the interest rate, Interest Period and
amount of interest to be paid under this sub-clause will be
completed and binding on the Borrower except for manifest
error.
12.4 After the declaration pursuant to Clause 12.2.1 by the Facility Agent
or the Security Agent, if the Creditor receives or obtains the
principal of the Facility or any amount of money under this Agreement
whether in whole or in part on the day which is not the Interest
Payment Date for the principal amount of the Facility or any amount of
money under this Agreement, the Borrower shall pay the amount certified
by the Creditors (which is due to be completed and binding on the
Borrower except for manifest error) as the amount which is necessary to
compensate the Creditors for the loss or expense whether directly or
indirectly that the Creditors sustain as the result of the receive of
such amount on the date which is not an Interest Payment Date
(including the loss of profit and the loss or expense incurred or may
incur in liquidation or redeploying funds acquired to make or maintain
the loan or any part of the loan or the utilization of such money again
at any one or more rates which is lower than the rate which would have
been payable by the Borrower under this Agreement) to the Creditors
upon request.
13. SECURITY
The Borrower agrees to provide additional Security as follows as the
security for the debt of the Borrower under this Agreement and the
Transaction Documents.
13.1 The Borrower shall pledge all the Equipment for the benefit of the
Creditors under the Equipment Pledge Agreement, from time to time, as
soon as practicable for the pledge under the laws or upon request by
the Security Agent or Creditors by instructing the Security Keeper
designated by the Facility Agent, the Security Agent and the Creditors
to control the said Equipment for the benefit of the Creditors and
after the Borrower has registered the mortgage of Registrable Euipment
in the name of the Creditors under the conditions of Clause 13.3 such
Registrable Equipment will be released from the pledge under this
clause.
13.2 The Borrower shall submit the application to register the ownership of
the Registrable Equipment of the Borrower to the Equipment Registrar,
from time to time, as soon as practicable under the laws or upon
request by the Security Agent or Creditors, but in any case the
Borrower shall submit the application to register the ownership of the
first lot of the Registrable Equipment no later than 31 December 2001
or any other date agreed by the Creditors and after the registration of
the equipment the Borrower must submit all documents which are the
evidence of such ownership registration in the equipment which is the
original to the Security Agent for the safe custody and apart from the
first lot of the Registrable Equipment, the Borrower agrees to also
pledge the Registrable Equipment and register the ownership and
mortgage the Registrable Equipment used to install relating to the
operation and Project after 31 December 2001.
13.3 The Borrower must register the mortgage of all of the Registrable
Equipment the ownership of which have already been registered pursuant
to Clause 13.2, from time to time, under the form and
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substance satisfactory to the Creditors as a security for the debt
under this Agreement and the Transaction Documents in which case the
Borrower shall be responsible to pay for the fees and expenses for such
mortgage and after the registration of any Equipment the Borrower shall
deliver all the evidences (which is the original) relating to such
mortgage to the Security Agent for the benefit of the Creditors,
provided that before each registration of the mortgage of the
Registrable Equipment, the Borrower shall obtain all consents,
licenses, permits or other similar type of documents from any relevant
governmental authority, agency, organization, board (including the
Board of Investment) or other person as necessary to mortgage that
Registrable Equipment.
13.4 In case the Borrower has additional land and/or building for the
operating of the Project, the Borrower shall mortgage such land and/or
building to the Creditors in the form and substance satisfactory to the
Creditors in which case the Borrower shall be responsible to pay for
the fees and expenses for such mortgage registration and after any
mortgage registration, the Borrower shall deliver all evidences (which
is original) relating to such mortgage to the Security Agent for the
benefit of the Creditors.
13.5 The Borrower shall provide additional Security as requested by the
Creditors when the Creditors consider that the Security provided by the
Borrower to the Creditors under this Agreement or the Transaction
Documents are deteriorated or the value of such Security has been
diminished.
14. DISTRIBUTION OF SECURITY
The Security Agent agrees to perform the following obligations:
14.1.1 accept and hold the Pool Assets and revenues from the
enforcement of the Pool Assets and the claims for insurance
for the benefit in accordance with the Proportion of Debt of
the Creditors within the safe place and release or distribute
the Pool Assets in compliance with the terms of this
Agreement.
14.1.2 arrange for the filing and custody of all correspondences
between the Borrower and the Security Agent under this
Agreement.
14.1 Each party in this Agreement will inform the other party of any matter
which may have material affect to the operation of this Agreement or
the Transaction Documents.
14.2 If any Creditor obtains or acquires any amount of money from the Pool
Assets (apart from the receipt from Facility Agent or Security Agent
relating to performance of the duties of the Facility Agent or the
Security Agent under this Agreement), such Creditor shall inform other
Creditors and the Security Agent about such receipt of money promptly.
14.3 After the notification under Clause 14.3, the Creditors agree to
jointly distribute the money received in the following orders:
14.4.1 firstly, the money will be used to repay the court fees, legal
expenses and other expenses incurred for the joint benefit of
the enforcement, distribution and/or maintenance of Pool
Assets; and
14.4.2 subsequently, the remaining of such amount will be used to
repay the interest on the debt which is outstanding and due
but not payable and will be used to repay the debt at that
time which is due and payable and which is the debt of each
Creditor under this Agreement in Proportion of Debt at that
time.
14.5 The provision of this Clause is made for the benefit of the Creditors
such that initially will be used as security for the due and punctual
payment of the debt and subsequent as the security for the performance
of the obligations and all types of Debt which is outstanding from time
to time of the Borrower.
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14.6 The provision of this Clause will not be deemed to be novation among
the Borrower and the Creditors or each of the Creditor whether for the
Debt under any agreement and shall not be interpreted to reduce the
rights of the Creditors against the Borrower.
14.7 In case any Creditor obtains any benefit from the security which is
additional benefit in whatsoever nature which is the security for any
Debt or the whole Debt of the Borrower at any time whether now or in
the future such benefit under the security will be deemed to be the
Pool Assets for the joint benefit of the Creditors as if such benefit
under the security is obtained pursuant to the term of this Agreement
and in the event of any breach which followed by enforcement of Pool
Assets, the Security Agent shall obtain and maintain such benefits in
security for the joint benefit of the Creditors and will distribute all
the money received from the enforcement of such benefit under the
security to the Creditors pursuant to Clause 14.4 above.
14.8 Each Creditor agrees that the provision of this Clause shall not have
any effect to other security or preferential rights, assets or rights
which any Creditor obtains from any person freely by making a written
agreement to exempt its from being a Pool Asset from other Creditors.
14.9 If there is any Event of Default, the Creditors shall consult each
other immediately to agree on the joint cause of actions.
14.10 In the event of Pool Assets being enforced, all the money resulting
from that enforcement together with any money from the insurance which
is payable after the proceeding to enforce the Pool Assets will be paid
to the Security Agent for the benefit of Creditors in accordance with
their Proportion of Debt. All such proceeds shall be distributed within
five (5) Banking Days from the date of receipt as follows:
Firstly, to be used to repay the fees and expenses incurred in
relation to the enforcement of such Pool Assets.
Secondly, subject to the provision of Clause 14.4 shall be used
to repay the debt which is due and payable to each
Creditor in accordance with its Proportion of Debt at
that time and
Thirdly, to return the balance (if any) to the Borrower.
Provided that if the money received is not enough to repay the debt in
full, such money will be used to pay according to the Proportion of
Debt of each Creditor at the time of the distribution of money without
any preferential rights or the rights to receive before others among
the Creditors.
14.11 In any cases if any Creditors receives the distribution or
portion of enforcement of Pool Assets exceeding its Proportion
of Debt, such Creditor shall return the exceeding amount to be
distributed among the Creditors in accordance with the
Proportion of Debt, in order for the debt to be paid in
compliance with correct Proportion of Debt.
14.12 The Facility Agent, the Security Agent and Creditors shall
jointly take care of and maintain the rights that each of the
Creditors has in the Pool Assets as long as the Borrower is
indebted under this Agreement. If any Creditor performs or
refrains from performing which results in the rights in the
Pool Assets in relation to such Creditor to be diminished
without obtaining the consent from other Creditors the
proportion that such Creditor shall receive from the
enforcement of Pool Assets pursuant to Clause 14.10 shall be
reduced by the same amount.
14.13 The Borrower shall not perform any of following acts except
where the Creditors agree in writing
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(a) create any mortgage rights or encumbrances over the
Pool Assets whether in whole or in part apart from
those specified in this Agreement or the Transaction
Documents.
(b) incur debt or binding obligation with any Creditor
under this Agreement apart from what have already
provided in this Agreement or the Transaction
Documents.
(c) repay the debt to any Creditor in this Agreement
other than pursuant to the procedures set forth in
this Agreement or the Transaction Documents.
14.14 The parties agree that the Security Agent shall be responsible
for the safe keeping of the Agreement, title deeds,
certificates of ownership, insurance policies, instruments and
documents relating to the Pool Assets, Security and
Transaction Documents which must be submitted to the Security
Agent under this Agreement for the benefit of the Creditors in
the safe place.
15. INDEMNITY
Without affecting other provision of this Agreement, the Borrower shall
indemnify any of the Creditors, promptly upon request from such
Creditor with reasonable supporting evidences, from and against all
actions, losses, expenses or liabilities whether directly or indirectly
including the legal fees, the Creditors or any Creditor have incurred
or paid as a result of the Borrower not performing its obligation on
the due date or as a result of the misrepresentation of any facts or as
a result of any Event of Default (whether such debt is declared to be
immediately due and payable or not) (including interest or fees which
is paid or to be paid for the money which is borrowed to support any
amount which has not been paid).
16. EXPENSES
16.1 Upon request in writing by the Facility Agent or the Security Agent to
the Borrower, the Borrower shall pay any reasonable amount as are
necessary to reimburse the Creditors for all costs, charges, and
expenses (including without limitation legal fees and expenses and
other advances in whatsoever nature) incurred by the Creditors in
negotiation, preparing and execution of this Agreement and/or the
Transaction Documents and other documents to be made under this
Agreement and/or the Transaction Documents are arranged for the return
of any money which is due and payable to the Creditors under this
Agreement and/or the Transaction Documents or in preserving or
enforcing or seeking to preserve or enforce any of the rights of the
Creditors under this Agreement and/or the Transaction Documents to the
Creditors.
16.2 The Borrower shall pay or cause to be paid all present and future stamp
and other like duties and taxes in similar nature together with the
registration fees, recording fees, and other types of fees in the
similar nature which is payable under this Agreement or the Transaction
Documents or documents or instruments referred to in this Agreement,
the Transaction Documents and shall indemnify the Creditors against all
liabilities, costs, claims and expenses with respect to or resulting
from any delay in paying such duties, taxes or fees. A certificate as
to the amount in respect of which the indemnity is so required
submitted by the Facility Agent or Security Agent shall be conclusive
and binding on the Borrower (in the absence of manifest error).
16.3 The Borrower shall, upon request from the Security Agent and/or
Creditors, pay the expenses for the appraisal of the Security and/or
other assets of the Borrower from time to time to the independent
appraiser designated by the Security Agent.
17. NOTICES
17.1 All notices, demands or other communications required to be delivered
or done under this Agreement or the Transaction Documents shall be sent
and made in writing and deliver by hand, registered mail, talex, or
facsimile unless otherwise specified in this Agreement.
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17.2 All notices, demands or other communications to be sent or made to the
Borrower, the Facility Agent, the Security Agent or Creditor under this
Agreement or the Transaction Documents shall be sent to such person at
the following addresses (except the recipient has designated other
address or telex or facsimile numbers and such notification was made no
later than five (5) days in advance.)
To the Borrower: Innovex (Thailand) Limited
00 Xxx 0, Xxxxxx Xxxxxxxxxx Xxxx 0
Xxxxxxxx Xxxxxxxxxx Xxxxxx
Baan Klang Sub-district
Muang Lampoon District
Lampoon Province
Thailand
Tel: (053) 554-700
Fascimile: (053) 554-699
To the Security Agent: The Industrial Finance Corporation of Thailand
0000 Xxx Xxxxxxxxx Xxxx
Bangkapi Sub-district
Xxxxxxxxx Xxxxxxxx
Xxxxxxx 00000
Xxxxxxxx
Tel: 000-0000, 000-0000 Ext 1711
Fascimile: 251-1029
To the Facility Agent: Bank of Ayudhya Public Company Limited
0000 Xxxx XXX Xxxx
Xxxxxxxxxxxx, Xxxxxxx
Xxxxxxx 00000
Thailand
Tel: 000-0000, 000-0000
Fascimile: 683-1298, 683-1324
To the Creditors: The Industrial Finance Corporation of Thailand
0000 Xxx Xxxxxxxxx Xxxx
Bangkapi Sub-district
Xxxxxxxxx Xxxxxxxx
Xxxxxxx 00000
Xxxxxxxx
Tel: 000-0000, 000-0000 Ext 1711
Fascimile: 251-1029
Bank of Ayudhya Public Company Limited
0000 Xxxx XXX Xxxx
Xxxxxxxxxxxx, Xxxxxxx
Xxxxxxx 00000
Thailand
Tel: 000-0000, 000-0000
Fascimile: 683-1264
The address of the Borrower as specified above (or other address
designated in writing by the Borrower under the terms and conditions of
this Agreement as the case may be) shall be deemed to be special
domicile of the Borrower for the communication from the Facility Agent
or the Creditors and/or other Judicial Authority in relation to this
Agreement and the Transaction Documents.
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17.3 All notices, demands, and other communications address to the Borrower
as mentioned above shall be deemed to deliver to the Borrower and the
Borrower has received such the documents as follows:
17.3.1 in case of notices, demands or other communications delivered
by person (namely by way of messenger) shall be deemed to be
delivered and the Borrower has received when such notices,
requests, or other communications are delivered to the said
address or after five (5) days from the date of delivery if it
is a registered mail or
17.3.2 in case of notices, requests or other communications made by
way of telex to be deemed to deliver to the Borrower and the
Borrower has received the same when deliver with confirmed
answer back to this of delivery, by facsimile to be deemed to
be delivered and the Borrower has received the same upon
delivery and all notices, demands or other communications made
by the Borrower and delivered to the Facility Agent, the
Security Agent or Creditors shall be deemed to be delivered
when the Facility Agent, the Security Agent or Creditors have
actually received such documents at the address specified
above or such other address notified by the Facility Agent,
Security Agent and Creditors under this sub-clause.
18. ASSIGNMENT
18.1 This Agreement shall be binding on and inure to the benefit of the
Borrower, Facility Agent, Security Agent and Creditors and their
respective successors, assignees and transferees, except that the
rights of the Borrower under this Agreement and/or Transaction
Documents are personal to it and cannot be assigned or transferred
either in whole or in part.
18.2 Subject to the conditions of this Agreement, any Creditor may assign
its rights and benefits in whole or in part under this Agreement and/or
Transaction Documents to anyone or more banks, financial institutions,
asset management companies or entities (in whatever nature) at any
time.
18.3 All agreements, representations, and warranties made under this
Agreement and/or the Transaction Documents shall survive any assignment
made pursuant to this Clause and shall inure to the benefit of the
assignee.
18.4 Any Creditor may disclose to prospective or actual assignee such
information about the Borrower as such Creditor may consider
appropriate.
19. VOID PROVISION NOT AFFECTING VALID PROVISION
If at any time any provision of any document is or become illegal,
invalid or unenforceable in any way, other provision, as the case may
be, will still be legal, complete and enforceable under the laws and
shall not be invalidated by the illegality, invalidity or
unenforcability of the said provision or the document.
20. AMENDMENT OR WAIVER
Any amendment of any provision of this Agreement or any waiver of any
acts or obligation under this Agreement or the Transaction Documents
except the waiver of the condition precedent which is within the power
of the Facility Agent for the benefit of the Creditors shall be made
upon consent of the Majority Creditors.
21. SET-OFF
In addition to the rights of the Creditor under this Agreement, upon
the occurrence of any Event of Default, each Creditor is entitled to
set-off the debt by using the debt that the Borrower is owing under
this Agreement to be deducted from the deposit, balance or other
monetary debt which the Creditor is obligated to pay to the Borrower
whether such amount is due and payable or not or whether it is the
deposit that the Borrower deposits jointly with any person. Each
Creditor is entitled to exercise the set-off under this Agreement by
not having to send notification, any types of notices to the Borrower
or any other person and it will be deemed that the Borrower has waived
the right to
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receive such notification under this Agreement. After the set-off under
this Agreement, the Creditors will notify the Borrower about such
set-off within appropriate time.
The proceedings under this Clause will be in compliance with the
conditions of Clause 14 of this Agreement.
22. GOVERNING LAWS
This Agreement shall be governed by and interpreted and contrued in
accordance with the laws of Thailand.
23. NO WAIVER
No failure or delay by the Creditors, the Security Agent or the
Facility Agent (as the case may be) to exercise any rights or remedy
shall constitute the waiver of such rights or remedy and any partial
exercise of any rights or remedy shall not be deemed to preclude
further exercise of such rights or remedy or the utilization of any
other rights or remedy and the Creditors, Security Agent or Facility
Agent (as the case may be) may use any of the rights of the Creditors,
Security Agent or Facility Agent (as the case may be) as if there is no
such waiver been given.
24. EFFECTIVE DATE OF THIS AGREEMENT
This Agreement shall be effective from the Effective Date of this
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the
date specified above.
THE BORROWER:
INNOVEX (THAILAND) LIMITED
----------------------------------
THE SECURITY AGENT:
THE INDUSTRIAL FINANCE CORPORATION OF THAILAND
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THE FACILITY AGENT:
BANK OF AYUDHYA PUBLIC COMPANY LIMITED
----------------------------------
THE CREDITORS:
THE INDUSTRIAL FINANCE CORPORATION OF THAILAND
----------------------------------
BANK OF AYUDHYA PUBLIC COMPANY LIMITED
----------------------------------
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