EXHIBIT 4.82
EQUIPMENT FACILITY AGREEMENT
THIS EQUIPMENT FACILITY AGREEMENT ("THIS AGREEMENT") is made on the 10th day of
September, 2007,
BETWEEN:
(1) TOWER SEMICONDUCTOR LTD., a company incorporated under the laws of Israel
(company no. 52-004199-7), whose registered office is at X.X. Xxx 000,
Xxxxxxxxxx Xxxx, Xxxxxx Xxxxxx 00000, Xxxxxx ("THE BORROWER");
AND
(2) BANK HAPOALIM B.M. ("THE BANK")
WHEREAS: the Borrower carries on business as an independent "foundry"
manufacturer of semiconductor integrated circuits and a provider
of related design services and the Borrower wishes to purchase
the Ramp-Up Equipment (as defined in the Facility Agreement dated
January 18, 2001, as amended and restated on August 24, 2006, as
further amended on September 10, 2007 and as may be amended from
time to time ("THE FACILITY AGREEMENT")) and requires financing
for payment of the cost of acquisition of the Ramp-Up Equipment;
AND WHEREAS: the Bank, Bank Leumi le-Israel B.M. and the Borrower are parties
to the Facility Agreement;
AND WHEREAS: subject to the terms and conditions of this Agreement, including
the fulfilment of the conditions precedent set out below, the
Bank is willing to make available to the Borrower a secured US
Dollar credit facility in order to finance partially the cost of
acquisition of the Ramp-Up Equipment,
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. INTERPRETATION
1.1. DEFINITIONS
In this Agreement, the following terms have the meanings given to them
in this clause 1.1:
1.1.1. "AVAILABILITY PERIOD" - means the period commencing on the
Closing Date and ending on the Termination Date;
1.1.2. "AVAILABLE COMMITMENT" - means the Commitment less: (a) all
outstanding Equipment Facility Credits provided by the Bank; and
(b) any such Equipment Facility Credits that have been requested
and are due to be made under the Equipment Facility on or before
the proposed Drawdown Date or Issue Date, as the case may be;
1.1.3. "BANK" - means Bank Hapoalim B.M.;
1.1.4. "BORROWER" - means Tower Semiconductor Ltd.;
1.1.5. "CHARGED ACCOUNT" - means account number 545454 at the Bank,
Xxxxxx Haemek Branch No. 728, in the name of the Borrower, into
which account:
(a) all Equipment Loans by the Bank will be paid in accordance
with clause 4.2.4 below;
(b) all repayments and prepayments of Equipment Loans to the
Bank will be made;
- 2 -
(c) all deposits (if any), made in respect of an Equipment L/C
issued by the Bank, as referred to in clause 4.3.2.4 below
will be deposited; and
(d) all other payments to the Bank under this Agreement are to
be made pursuant to this Agreement;
1.1.6. "CLOSING DATE" - means the second Business Day following the
date on which the Bank is satisfied that all of the conditions
precedent referred to in clause 3 below have been fulfilled;
1.1.7. "COMMITMENT" - means the amount of US $15,000,000 fifteen
million United States Dollars);
1.1.8. "DRAWDOWN DATE" - means, in respect of any Equipment Loan, the
date of the making of such Equipment Loan;
1.1.9. "DRAWDOWN REQUEST" - means a notice substantially in the form
of SCHEDULE 1.1.9 hereto;
1.1.10. "EQUIPMENT FACILITY" - means the US Dollar credit facility
granted to the Borrower by the Bank pursuant to clause 2.1 below;
1.1.10A. "EQUIPMENT FACILITY CREDITS" - means any Equipment Loans made
to the Borrower pursuant to the Equipment Facility and/or any
Equipment L/Cs issued by the Bank in lieu of all or part of the
Equipment Loans or, as the context requires, the principal amount
of such Equipment Loans at such relevant time and the Maximum
Drawing Amount of such Equipment L/Cs at such relevant time;
provided that, the maximum aggregate amount of all Equipment
Facility Credits shall not exceed US $15,000,000 (fifteen million
United States Dollars);
- 3 -
1.1.11. "EQUIPMENT FACILITY DEFAULT" - means any Equipment Facility
Event of Default or any event which with the giving of notice or
lapse of time, or the making of any determination hereunder, or
the satisfaction of any other condition (or any combination
thereof) would constitute an Equipment Facility Event of Default;
1.1.12. "EQUIPMENT FACILITY EVENT OF DEFAULT" - means any of the
events or circumstances described in clauses 12.2-12.9
(inclusive) below;
1.1.13. "EQUIPMENT L/C" - means a standby or documentary letter of
credit or bank guarantee issued, or to be issued, by the Bank
under the Equipment Facility for the account of the Borrower in
accordance with clause 4.3 below;
1.1.14. "EQUIPMENT LOAN" - means a loan made or to be made by the Bank
under the Equipment Facility pursuant to clause 4.2 below;
1.1.15. "EQUIPMENT LOAN MATURITY DATE" - means the earlier of:
(a) the Final Equipment Facility Maturity Date; and
(b) the Business Day immediately following the second
anniversary of the date on which the Equipment Loan was
made,
subject, in each case, to mandatory prepayment on an earlier date
pursuant to clause 6.2 below;
- 4 -
1.1.16. "FEE LETTER" - means the fee letter dated the date hereof
between the Bank and the Borrower in the form of SCHEDULE 1.1.16
hereto;
1.1.17. "FINAL EQUIPMENT FACILITY MATURITY DATE" - means March 31,
2010;
1.1.18. "ISSUE DATE" - means, in respect of any Equipment L/C, the
date of the issue of such Equipment L/C;
1.1.19. "L/C APPLICATION" - means an application by the Borrower for
the issue of an Equipment L/C in such form as may be agreed upon
by the Bank and the Borrower from time to time and which is to be
made pursuant to clause 4.3 hereof;
1.1.20. "SHARE WARRANTS" - means the warrants to acquire shares of the
Borrower to be issued by the Borrower to the Bank in the form of
SCHEDULE 1.1.20 hereto;
1.1.21. "TERMINATION DATE" - means the Business Day immediately
following the second anniversary of the Closing Date.
1.2. Unless otherwise defined in this Agreement, terms defined and
references construed in the Facility Agreement shall have the same
meaning and construction in this Agreement.
1.3. The recitals and schedules hereto form an integral part thereof.
2. THE EQUIPMENT FACILITY
2.1. GRANT OF EQUIPMENT FACILITY
Subject to the fulfilment of the conditions precedent set out in
clause 3 below and to compliance with the further conditions set out
in clause 4 below, the Bank, relying upon each of the representations
and warranties made or incorporated by reference in this Agreement,
agrees to grant to the Borrower, for application only in accordance
with clause 2.2 below and otherwise subject to the terms and
conditions of this Agreement, the Equipment Facility in the aggregate
amount of US $15,000,000 (fifteen million United States Dollars),
being a Dollar Facility.
- 5 -
2.2. PURPOSE
The Borrower shall apply all Equipment Facility Credits only towards
the payment of the cost of acquisition of the Ramp-Up Equipment.
2.3. NO OBLIGATION TO MONITOR
The Bank shall not be under any obligation to monitor or verify the
application of any Equipment Facility Credit made pursuant to this
Agreement. The Borrower shall promptly notify the Bank of the making
of any commitments to purchase or of any purchase order relating to
any acquisition of Ramp-Up Equipment.
3. CONDITIONS PRECEDENT
The obligations of the Bank under this Agreement are subject to the
condition that the Bank shall have received, by not later than December 31,
2007, the following documents, matters and things in form and substance
satisfactory to the Bank:
3.1. a copy, certified as a true copy by the external legal counsel of the
Borrower, of the Certificate of Incorporation, Memorandum of
Association and Articles of Association of the Borrower or, if
applicable, a certificate from external legal counsel as to the
absence of changes from the certified copies of the aforegoing
delivered to the Bank on or about September 5, 2006;
3.2. copies of resolutions of the Board of Directors of the Borrower
authorising named officers of the Borrower to execute, deliver and
perform this Agreement and each of the other Finance Documents entered
into in connection with this Agreement and to give all notices and
take all other action required to be given or taken by the Borrower
under this Agreement and under each other Finance Document;
3.3. no Material Adverse Effect shall have occurred;
- 6 -
3.4. there shall be no impediment, restriction, limitation or prohibition,
including impediments, restrictions, limitations or prohibitions
imposed under law or by any Governmental Body, as to the proposed
financing under this Agreement or as to the issuance of the Share
Warrants to the Bank or as to the security interests to be created
with respect to the Ramp-Up Equipment under the Security Documents or
as to any rights of any collateral thereunder or as to application of
the proceeds of the realisation of any such rights;
3.5. an opinion of Xxxxx Xxxxx & Co., Advocates, the Borrower's external
legal counsel, addressed to the Bank;
3.6. all of the Borrower's representations and warranties given by the
Borrower pursuant to this Agreement shall be accurate in all material
respects as of the Closing Date, as if made on the Closing Date;
3.7. execution of the Share Warrants;
3.8. execution of the Fee Letter and payment of all fees payable to the
Bank thereunder;
3.9. the Facility Agreement, including Amendment No. 1, dated September 10,
2007, to the Restated Facility Agreement, dated August 24, 2006, shall
be effective and in full force and effect;
3.10. all of the conditions precedent set forth in clause 1.1.115(l) of the
Facility Agreement shall have been fulfilled, including:
3.10.1. the closing under the definitive documentation between the
Borrower and TIC, with respect to the US $30,000,000 (thirty
million United States Dollars) of Permitted Subordinated TIC Debt
to be provided by TIC to the Borrower, shall have occurred or
shall occur simultaneously with the closing of this Agreement;
provided that, for the avoidance of doubt, the terms of such
Permitted Subordinated TIC Debt shall be in accordance with
clause 1.1.115(l) of the Facility Agreement;
3.10.2. the delivery to the Bank of an irrevocable and unconditional
undertaking by TIC, in the form attached hereto as SCHEDULE 3.10
("THE UNDERTAKING"), to provide Permitted Subordinated TIC Debt
to the Borrower in accordance with clause 4.1.2.2 below, such
that at no time shall the amount of principal of Permitted
Subordinated TIC Debt provided by TIC be in an amount less than
the principal of all Equipment Loans (as such term is defined in
the Facility Agreement) provided by all Equipment Lenders (as
such term is defined in the Facility Agreement) (including an
undertaking by TIC directly to make one-half of the payment to be
made to the beneficiary of the Equipment L/C (or immediately
reimburse the Bank for one-half of the payment to the beneficiary
so made by the Bank), which payment shall be deemed a portion of
the Permitted Subordinated TIC Debt required to be provided by
TIC to the Borrower); and
- 7 -
3.10.3. a net amount of at least US $40,000,000 (forty million United
States Dollars) shall have been: (a) unconditionally and
irrevocably invested in the Borrower by way of Paid-in-Equity,
Permitted Subordinated Debt, excluding (for the avoidance of
doubt) Permitted Subordinated TIC Debt (including a gross amount
of US $39,977,064 (thirty-nine million, nine hundred and
seventy-seven thousand and sixty-four United States Dollars)
already raised) or unsecured customer advances, in form and
substance satisfactory to the Banks; or (b) generated from Excess
Cash Flow, including as may be reflected in the Borrower's
Accounts for a Quarter commencing from the first Quarter of 2007,
provided that any such Excess Cash Flow is held by the Borrower
as cash in short term bank deposits.
3.11. the Borrower shall have received written confirmations of the receipt
of all requisite corporate and third party, including Israeli and
foreign Governmental Body, approvals to the transactions contemplated
by this Agreement;
3.12. the closing(s) under the definitive documentation between the
Borrower and the Equipment Lender(s), with respect to the remaining US
$15,000,000 (fifteen million United States Dollars) of Equipment Loans
(as such term is defined in the Facility Agreement) and/or Equipment
L/Cs (as such term is defined in the Facility Agreement) shall have
occurred or shall occur simultaneously with the closing of this
Agreement; provided that, the terms of such Equipment Loans (as such
term is defined in the Facility Agreement) and/or Equipment L/Cs (as
such term is defined in the Facility Agreement) shall be in accordance
with clause 1.1.115(l) of the Facility Agreement;
3.13. no Equipment Facility Default shall have occurred and the
consummation of this Agreement shall not cause an Equipment Facility
Default to occur; and
- 8 -
3.14. an officer's certificate signed by the CEO and CFO of the Borrower on
behalf of the Borrower indicating that all of the provisions of this
clause 3 have been complied with in their entirety.
In the event that the conditions precedent are not fulfilled by December
31, 2007 then this Agreement shall no longer be of any force or effect and
neither party shall have any claim against the other party arising out of
or in connection with this Agreement. The Bank undertakes that promptly
following the fulfilment to the satisfaction of the Bank of all the
conditions precedent referred to in this clause 3 above, the Bank shall
confirm to the Borrower in writing that the conditions precedent have been
fulfilled and the Bank is prepared to close.
4. AVAILABILITY OF EQUIPMENT FACILITY CREDITS
4.1. AVAILABILITY
Notwithstanding anything to the contrary in this Agreement:
4.1.1. the Bank shall not be obliged to make any Equipment Facility
Credit available to the extent that doing so would cause the
aggregate amount thereof to exceed the Commitment; and
4.1.2. Equipment Facility Credits shall be made during the
Availability Period only and then only if all the following
conditions for each specific type of Equipment Facility Credit
specified hereunder in this clause 4 are fulfilled;
4.1.2.1. the other Equipment Lender or Lenders providing, in
accordance with clause 1.1.115(l) of the Facility Agreement,
an equal amount of Equipment Loans (as such term is defined
in the Facility Agreement) and/or Equipment L/Cs (as such
term is defined in the Facility Agreement) having the same
purpose and the same maturity date as the Equipment Facility
Credit proposed to be provided by the Bank;
4.1.2.2. TIC simultaneously therewith, providing, in accordance
with clause 1.1.115(l) of the Facility Agreement, Permitted
Subordinated TIC Debt to the Borrower in an amount equal to
the aggregate amount of Equipment Loans (as such term is
defined in the Facility Agreement) to be provided by the
Bank and the other Equipment Lender or Lenders, such
Permitted Subordinated TIC Debt to have the same purpose as,
and the same or later maturity date than, such parallel
Equipment Loans (as such term is defined in the Facility
Agreement);
- 9 -
4.1.2.3. the proposed date for the making of such Equipment
Facility Credit is a Business Day which is or precedes the
Termination Date;
4.1.2.4. the Borrower shall have entered into a purchase contract
and/or submitted a purchase order for the Ramp-Up Equipment,
whereby upon payment therefor, the Borrower shall own the
Ramp-Up Equipment, free and clear of all Encumbrances (other
than Permitted Encumbrances); the Borrower shall not be in
default under its purchase obligations with respect to the
Ramp-Up Equipment and the Borrower shall not have
voluntarily or involuntarily sold, transferred, leased or
otherwise disposed of all, or any part of, or interest in,
the Ramp-Up Equipment to any person;
4.1.2.5. no Encumbrance over the Ramp-Up Equipment purchased by
the Borrower as aforesaid or any part thereof shall exist
(other than Permitted Encumbrances);
4.1.2.6. no Equipment Facility Default shall have occurred and be
continuing and no Equipment Facility Default shall occur as
a result of the making of such Equipment Facility Credit;
4.1.2.7. the amount of the Equipment Facility Credit requested
shall not exceed the total Available Commitment as at the
Drawdown Date or Issue Date, as the case may be;
4.1.2.8. the representations and warranties given by the Borrower
pursuant to this Agreement shall be true and accurate in all
material respects on and as at the proposed date for the
making of the Equipment Facility Credit; and
4.1.2.9. the Available Commitment as at the Termination Date
shall automatically be cancelled.
- 10 -
4.2. EQUIPMENT LOANS
Subject to the fulfilment of the conditions precedent, to compliance
with the conditions set out in clause 4.1 above and to compliance with
the following conditions, the Bank shall make an Equipment Loan under
the Equipment Facility during the Availability Period only if:
4.2.1. the Borrower shall have delivered to the Bank a Drawdown
Request for such Equipment Loan, specifying a date for making
such Equipment Loan, being at least 7 (seven) Business Days after
the date of delivery of such Drawdown Request. Any Drawdown
Request will upon delivery thereof be irrevocable;
4.2.2. the minimum amount of each Equipment Loan shall be a minimum
amount of US $1,000,000 (one million United States Dollars) and
an integral multiple of US $1,000,000 (one million United States
Dollars) (other than (i) in the case of an Equipment Loan
provided in connection with an Equipment L/C which shall not be
required to be in any minimum amount or in any integral multiple
or (ii) in the case of an Equipment Loan which shall be for the
balance of the Available Commitment);
4.2.3. all Equipment Loans made under this Agreement shall be in US
Dollars; and
4.2.4. all Equipment Loans shall be made by the Bank by credit of the
amount to be loaned by the Bank to the Charged Account.
4.3. LETTERS OF CREDIT
4.3.1. Subject to the fulfilment of the conditions precedent, to the
compliance with the conditions set out in clause 4.1 above and to
compliance with the following conditions (and subject to the
conditions that the Bank shall not be required to issue any
Equipment L/C until: (a) the terms of the Equipment L/C have been
agreed between the Bank and the beneficiary thereof; and (b) the
Bank is satisfied that the Undertaking is in full force and
effect), the Bank shall issue Equipment L/Cs under the Equipment
Facility during the Availability Period, if:
4.3.1.1. the Borrower shall have delivered to the Bank an L/C
Application, specifying the proposed Issue Date of such
Equipment L/C, being at least 5 (five) Business Days after
the date of delivery of such L/C Application, as well as the
name of the beneficiary of the Equipment L/C and the details
of the transaction in respect of which the Equipment L/C is
to be issued;
- 11 -
4.3.1.2. the Equipment L/C is denominated in US Dollars;
4.3.1.3. the L/C Application is accompanied by a copy of the
terms of the proposed Equipment L/C;
4.3.1.4. the expiry date of the Equipment L/C is a Business Day
falling no later than the Termination Date;
4.3.1.5. there is a maximum limit to the stated liability of the
Bank under the Equipment L/C; and
4.3.1.6. the Maximum Drawing Amount of such Equipment L/C, when
aggregated with the Maximum Drawing Amounts of all other
Equipment L/Cs outstanding or to be issued on such Issue
Date and the amount of Equipment Loans outstanding or to be
drawn down pursuant to a pending Drawdown Request, shall not
exceed US $15,000,000 (fifteen million United States
Dollars);
4.3.1.7 the Borrower shall have delivered to the Bank, at least 2
(two) Business Days prior to the proposed issuance date of
the proposed Equipment L/C, a confirmation from TIC that the
provisions of paragraph 2 of the Undertaking are fully
applicable to the Equipment L/C covered by such L/C
Application.
4.3.2. The Borrower shall pay to the Bank a commission in respect of
an Equipment L/C equal to the following percentage per annum of
the Maximum Drawing Amount of such Equipment L/C:
4.3.2.1. 0.75% (nought point seven five percent) per annum; or
4.3.2.2. in certain special cases, if so determined by the Bank,
1% (one percent) per annum; or
4.3.2.3. in the case where an advising, nominated or confirming
bank is required, the fees of such advising, nominated or
confirming bank, in addition to the commissions set forth in
clauses 4.3.2.1 or 4.3.2.2 above, as the case may be; or
- 12 -
4.3.2.4. in the event that the Borrower shall have placed funds
on deposit in the Charged Account at the Bank in an amount
equal at least to the Maximum Drawing Amount of the
Equipment L/C, which deposit is duly pledged in favour of
the Bank (or if all of the Equipment Lenders are the Banks,
in favour of the Banks) by a first-ranking fixed charge in
form and manner acceptable to the Bank as security for the
Borrower's obligations to the Bank under the Finance
Documents, including this Agreement, 0.25% (nought point two
five percent) per annum, provided that if prior to the
expiry date of such Equipment L/C, any part of the amount on
deposit pledged as aforesaid is, with the consent of the
Bank, released such that the amount on deposit is not equal
to the Maximum Drawing Amount with respect to such Equipment
L/C, the commission payable in respect of such Equipment
L/C, as the case may be as aforesaid, shall be such
percentage per annum as determined pursuant to clauses
4.3.2.1 and 4.3.2.2 above.
Commissions as aforesaid shall be paid in advance on the Issue
Date for such Equipment L/C on the Maximum Drawing Amount of such
Equipment L/C.
4.3.3. Each L/C Application shall be effective on actual receipt by
the Bank and once given shall be irrevocable.
4.3.4. The terms of the Equipment L/C must contain a clear procedure
for the making of claims under such Equipment L/C satisfactory to
the Bank which shall include a requirement that the beneficiary
gives at least 10 (ten) Business Days' notice of payment
(together with all documents required to accompany such notice,
in full compliance with the terms of such Equipment L/C) under
the relevant Equipment L/C.
4.3.5. For the removal of doubt, subject only to the terms of this
Agreement, each Equipment L/C shall be governed by the terms and
conditions customary at the Bank with respect to such an L/C.
- 13 -
4.3.6. The Bank shall, promptly after being notified by a beneficiary
under an Equipment L/C that the Bank is required to make payment
under such Equipment L/C (together with all documents required to
accompany such requirement in full compliance with the terms of
such Equipment L/C), notify the Borrower and TIC that such
payment is due, of the amount demanded and of the date for
payment thereof ("THE SETTLEMENT DATE").
On receipt of a notice from the Bank under this clause 4.3.6, the
Borrower shall either:
4.3.6.1. subject to the terms and conditions of this Agreement:
(a) incur Permitted Subordinated TIC Debt in an amount equal
to half of the relevant amount demanded through TIC's direct
payment to said beneficiary, on the date such amount is to
be paid by the Bank to said beneficiary under said Equipment
L/C, of one-half of the payment to be made to the
beneficiary of such Equipment L/C (or immediately, but no
later than the second Business Day after the making of such
payment, TIC's reimbursement of the Bank for one-half of the
payment to such beneficiary made by the Bank); and (b)
convert one-half of the relevant amount demanded into an
Equipment Loan. Each Equipment Loan and Permitted
Subordinated TIC Debt shall be denominated in US Dollars and
shall be in an aggregate amount (in US Dollars) equal to the
amount to be paid by the Bank on the Settlement Date. The
Borrower shall deliver to the Bank, by no later than the
close of business on the first Business Day following the
date of receipt of such notice ("THE CONVERSION DATE"), a
notice informing the Bank that this clause 4.3.6.1 shall
apply and in accordance therewith one-half of the relevant
amount demanded shall be converted into an Equipment Loan as
aforesaid on the Settlement Date. For the avoidance of
doubt, nothing in the aforegoing shall derogate from the
condition set out in clause 4.1.2.2 above; or
4.3.6.2. pay to the Bank, by no later than the close of business
on the Conversion Date, the full relevant amount demanded
under the Equipment L/C.
In the event that clause 4.3.6.1 above shall be applicable, the
Bank shall settle the amount demanded on the Settlement Date and
the Borrower shall be deemed to have received on the Settlement
Date an Equipment Loan from the Bank in an amount as determined
in accordance with clause 4.3.6.1 above.
- 14 -
In the event that clause 4.3.6.2 above shall be applicable, but
the Borrower shall fail to pay on the Conversion Date the full
relevant amount demanded on the Equipment L/C, the Bank shall
have the option to require TIC, pursuant to, and in accordance
with, the Undertaking, to pay to the Bank (such payment to be
Permitted Subordinated TIC Debt provided to the Borrower)
one-half of the amount payable thereunder by the Borrower and the
Borrower shall be deemed to have received on the Conversion Date
an Equipment Loan from the Bank in the remaining amount payable
pursuant to clause 4.3.6.2 above and not paid either by TIC or
the Borrower.
4.3.7. The Borrower unconditionally and irrevocably:
4.3.7.1. authorises and directs the Bank to pay any demand under
and in accordance with an Equipment L/C (which the Bank
believes, in its sole discretion, to be valid) without
requiring proof of the agreement of the Borrower that the
amounts so demanded or paid are or were due and
notwithstanding that the Borrower may dispute the validity
of any such request, demand or payment;
4.3.7.2. confirms that the Bank deals in documents only and shall
not be concerned with the legality of the claim or any other
underlying transaction or any set-off, counterclaim or
defence as between the Borrower and any beneficiary of an
Equipment L/C;
4.3.7.3. agrees that, subject to the last sentence of this clause
4.3.7, the Bank need not have regard to the sufficiency,
accuracy or genuineness of any such demand or any
certificate or statement in connection therewith or any
incapacity of or limitation upon the powers of any person
signing or issuing such demand, certificate or statement
which appears on its face to be in order and agrees that the
Bank shall not be obliged to enquire as to any such matters
and may assume, unless notified to the contrary, that any
such demand, certificate or statement which appears on its
face to be in order is correct and properly made;
- 15 -
4.3.7.4. without prejudice to the preceding clauses, agrees that
subject to the last sentence of this clause 4.3.7, if the
Bank pays any such demand in accordance with the terms of
the relevant Equipment L/C which is not legally payable,
that amount shall nevertheless be regarded as having been
properly paid for the purposes of this Agreement; and
4.3.7.5. agrees that subject to the last sentence of this clause
4.3.7, the Bank shall not be liable for any error, omission,
interruption or delay in transmission, despatch or delivery
of any message or advice, however transmitted, in connection
with any Equipment L/C. The Borrower agrees that subject to
the last sentence of this clause 4.3.7, any action taken or
omitted by the Bank under or in connection with each
Equipment L/C and the related drafts and documents, if done
in good faith, shall be binding upon the Borrower and shall
not result in any liability on the part of the Bank to the
Borrower.
Notwithstanding anything else herein, the Bank shall examine all
documents (if any) stipulated in an Equipment L/C with reasonable
care to ascertain whether or not they appear on their face to be
in compliance with the terms and conditions of the relevant
Equipment L/C.
4.3.8. The Borrower shall on demand indemnify and hold harmless the
Bank from and against all liabilities, costs, losses, damages and
expenses which the Bank incurs or sustains by reason of, or
arising in any way whatsoever in connection with, or by reference
to, the issue of any Equipment L/C or the Bank's performance of
the obligations expressed to be assumed by it under or in respect
of any Equipment L/C.
4.3.9. The Borrower's obligations under clause 4.3.8 above shall,
subject to the last sentence of clause 4.3.7 above, be absolute
and unconditional under any and all circumstances and
irrespective of the occurrence of any Equipment Facility Default
or Equipment Facility Event of Default or any condition precedent
whatsoever or any set-off, counterclaim or defence to payment
which the Borrower may have or have had against the Bank or any
beneficiary of an Equipment L/C.
- 16 -
4.3.10. The Bank shall subject to the last sentence of clause 4.3.7
above, be entitled to rely and shall be fully protected in
relying upon, any Equipment L/C, draft, resolution, written
notice, written consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message,
statement, Order or other document believed by it to be genuine
and correct and to have been signed, sent or made by the proper
person or persons, provided that any of the above may be
transmitted by facsimile or electronic transmission, if permitted
by the Equipment L/C.
4.3.11. The Borrower's obligations under clause 4.3.8 above shall,
subject to the last sentence of clause 4.3.7 above, not be
affected by any act, omission, matter or thing which, but for
this provision, might reduce, release or prejudice any of its
obligations under clause 4.3.8 above in whole or in part,
including and whether or not known to it:
4.3.11.1. any time or waiver granted to or composition with the
beneficiary of any Equipment L/C or any other person;
4.3.11.2. any taking, variation, compromise, exchange, renewal or
release of, or refusal or neglect to perfect, take up or
enforce, any rights, remedies or securities available to any
Bank or other person or arising under any Equipment L/C; and
4.3.11.3. any unenforceability, illegality or invalidity of any
Equipment L/C (so that the Borrower's obligations under
clause 4.3.8 above shall remain in full force and be
construed as if there were not such defect).
4.3.12. The indemnity under clause 4.3.8 above is a continuing
indemnity, extends to the ultimate balance of the Borrower's
obligations and liabilities under clause 4.3.8 above and shall
continue in force notwithstanding any intermediate payment in
whole or in part of those obligations or liabilities.
5. REPAYMENT
5.1. REPAYMENT OF LOANS
The Borrower shall repay each Equipment Loan in full upon the earlier
of: (a) the Final Equipment Facility Maturity date; and (b) the
Business Day immediately following, the second anniversary of the
making of such Equipment Loan, subject to mandatory prepayment in
accordance with clause 6 below.
- 17 -
5.2. PAYMENT OF ALL OTHER SUMS DUE ON THE FINAL MATURITY DATE
On the Final Equipment Facility Maturity Date, the Borrower
additionally shall pay to the Bank all other sums then outstanding
under this Agreement.
5.3. REPAYMENT IN CURRENCY OF LOAN
For the removal of doubt, each Equipment Loan, as well as all Interest
thereon, shall be repaid in US Dollars.
5.4. REPAYMENTS (INCLUDING PREPAYMENT) TO CHARGED ACCOUNT
All repayments as aforesaid and all prepayments (in accordance with
clause 6 below) shall be made by transfer to the Bank to the Charged
Account.
5.5. NO REBORROWING
The Borrower shall not be entitled to reborrow any part of an
Equipment Loan which is repaid. For removal of doubt: (a) the expiry
of an Equipment L/C (to the extent that it is not converted into an
Equipment Loan pursuant to clause 4.3.6 above) shall not reduce the
Commitment; and (b) the making of an Equipment Loan pursuant to clause
4.3.6 in respect of an Equipment L/C shall not constitute a
re-borrowing.
5.6. CANCELLATION OF COMMITMENT
For the removal of doubt and subject to the clarifications set forth
in clause 5.5 above with respect to Equipment L/Cs, the Commitment of
the Bank shall be cancelled by any amount repaid or prepaid under this
Agreement.
- 18 -
6. PREPAYMENT
6.1. VOLUNTARY PREPAYMENT
The provisions of clause 7 ("VOLUNTARY PREPAYMENTS") of the Facility
Agreement are hereby incorporated by reference and shall apply,
MUTATIS MUTANDIS, as if all references therein to the "Banks" and the
"Loans" were references to the "Bank" and "Equipment Loans",
respectively, each reference to a "Proportion" of a Loan shall be
deemed to refer to all of the Equipment Loans provided by the Bank,
and the reference in clause 7.1 of the Facility Agreement to "US
$10,000,000 (ten million United States Dollars)" shall be replaced
with "US $1,000,000 (one million United States Dollars)". For the
avoidance of doubt, the term "Total Outstanding" in clause 7.5 of the
Facility Agreement refers only to the Loans under the Facility
Agreement and not to the Equipment Loans that may be made hereunder.
6.2. MANDATORY PREPAYMENT
6.2.1. Upon the occurrence of a Triggering Quarter, the Borrower
shall, immediately and on a PRO RATA basis, prepay the Equipment
Loans and/or deposit funds in the Charged Account with respect to
the outstanding Equipment L/C's issued by the Bank at a rate of
US $3,750,000 (three million seven hundred and fifty thousand
United States Dollars) per Quarter, commencing on the last
Business Day of each Quarter following the Triggering Quarter
until the Equipment Loans are fully paid and until there shall
have been deposited in the Charged Account and duly pledged in
accordance with clause 4.3.2.4 above, an amount equal to the
Maximum Drawing Amounts of all outstanding Equipment L/C's issued
by the Bank.
For the avoidance of doubt and by way of illustration only, if
the Triggering Quarter is the Quarter ended March 31, 2008 and
the then outstanding Equipment Facility Credits aggregate US
$15,000,000 (fifteen million United States Dollars), consisting
of US $10,000,000 (ten million United States Dollars) in
Equipment loans and US $5,000,000 (five million United States
Dollars) in Equipment L/C's, the Borrower shall prepay US
$2,500,000 (two million five hundred thousand United States
Dollars) of Equipment Loans and deposit US $1,250,000 (one
million two hundred and fifty thousand United States Dollars) in
the Charged Account, duly pledged in accordance with clause
4.3.2.4 above, on the last Business Day of each of the Quarters
ended in June, September and December, 2008 and March, 2009.
- 19 -
6.2.2. Upon the occurrence of an Accelerated Trigger Quarter, the
Borrower shall, immediately and on a PRO RATA basis, prepay the
Equipment Loans to the Bank and/or deposit funds in the Charged
Account with respect to Equipment L/C's issued by the Bank at a
rate of US $6,250,000 (six million two hundred and fifty thousand
United States Dollars) per Quarter, commencing on the last
Business Day of each Quarter following the Accelerated Trigger
Quarter until the Equipment Loans are fully paid and until there
shall have been deposited in the Charged Account with the Bank
and duly pledged in accordance with clause 4.3.2.4 above, an
amount equal to Maximum Drawing Amounts of all outstanding
Equipment L/C's issued by the Bank.
For the avoidance of doubt and by way of illustration only, if
the Accelerated Trigger Quarter is the Quarter ended March 31,
2008 and the then outstanding Equipment Facility Credits
aggregate US $15,000,000 (fifteen million United States Dollars),
consisting of US $12,000,000 (twelve million United States
Dollars) of Equipment Loans and US $3,000,000 (three million
United States Dollars) in Equipment L/C's, the Borrower shall
prepay approximately US $5,000,000 (five million United States
Dollars) in Equipment Loans and deposit approximately US
$1,250,000 (one million two hundred and fifty thousand United
States Dollars) in the Charged Account, duly pledged in
accordance with clause 4.3.2.4 above, on the last Business Day of
each of the Quarters ended in June, September and December, 2008.
6.2.3. If and to the extent the Equipment L/C's in respect of which
deposits have been made pursuant to clauses 6.2.1 and 6.2.2 above
expire without any drawdown by the beneficiary thereof or any
other liability thereunder to the Bank and no Equipment Facility
Event of Default shall have occurred and be continuing, such
deposits shall be released to the Borrower.
6.2.4. Should the Borrower wish to make a voluntary prepayment with
respect to any Equipment Facility Credits to any other Equipment
Lender, the Borrower shall, simultaneously with such voluntary
prepayment, pay an amount equal to the amount of any such
voluntary prepayment to the Bank.
6.3. The provisions of clauses 8.2 ("NO REBORROWING OF MANDATORY
PREPAYMENT"), 8.4 ("MANDATORY PREPAYMENT TOGETHER WITH INTEREST AND
OTHER SUMS OWED"), 8.5 ("CURRENCY FOR MANDATORY PREPAYMENT") and 8.6
("SCHEDULE FOR MANDATORY PREPAYMENT") of the Facility Agreement are
hereby incorporated by reference and shall apply, mutatis mutandis, as
if all references to "Loans" were to "Equipment Loans".
- 20 -
7. INTEREST
7.1. INTEREST RATE
The rate of Interest applicable to the Equipment Loans in respect of
each Interest Period (provided that the first Interest Period in
respect of any Equipment Loan made other than on the first day of a
Quarter, shall commence on the date of the making of such Equipment
Loan and end on the last Business Day of the Quarter in which such
Equipment Loan is made) shall be the sum of: (a) the rate per annum
determined to be LIBOR in accordance with clause 1.1.94 of the
Facility Agreement on the Interest Determination Date for such
Interest Period; and (b) 3% (three percent) per annum.
7.2. ACCRUAL OF INTEREST
Interest as aforesaid in clause 7.1 above in respect of the Equipment
Loans shall accrue from day to day and shall be calculated on the
basis of the actual number of days elapsed and a 360 (three hundred
and sixty) day year.
7.3. PAYMENT OF INTEREST
All Interest accrued as aforesaid in clause 7.2 above on the Equipment
Loans shall be paid on each Interest Payment Date and on the Final
Equipment Facility Maturity Date. The Borrower shall pay to the Bank
all Interest payable as aforesaid into the Charged Account.
7.4. SUBSTITUTE INTEREST RATES
The provisions of clause 10 ("SUBSTITUTE INTEREST RATES") of the
Facility Agreement are hereby incorporated by reference and shall
apply, MUTATIS MUTANDIS, to this Agreement as if all references
therein to the "Banks" and the "Loans" were references to the "Bank"
and the "Equipment Loans".
- 21 -
8. COMMISSIONS, FEES AND EXPENSES
8.1. COMMITMENT COMMISSION
The Borrower shall, in respect of the Availability Period, pay to the
Bank a Commitment commission at the rate per annum of 0.25% (nought
point two five percent) on the Available Loan Commitment from time to
time as from the date of signature of this Agreement until the last
day of the Availability Period. Such fee shall accrue from day to day
and shall be calculated on the basis of the actual number of days
elapsed and a 360 (three hundred and sixty) day year and shall be paid
in arrears on each Interest Payment Date during the Availability
Period and on the Termination Date. "AVAILABLE LOAN COMMITMENT" means,
at any time, the Commitment at such time, less: (a) all Equipment
Loans outstanding at such time; and (b) the Maximum Drawing Amount of
all Equipment L/Cs outstanding at such time.
8.2. The provisions of clauses 11.3 ("LEGAL AND OTHER COSTS"), 11.5 ("STAMP
DUTIES AND LIKE TAXES"), 11.6 ("OTHER COMMISSIONS, FEES AND
EXPENSES"), 11.7 ("CURRENCY FOR PAYMENT") and 11.8 ("VAT") of the
Facility Agreement are hereby incorporated by reference and shall
apply, MUTATIS MUTANDIS, to this Agreement as if all references
therein to the "Banks" and the "Facility" were references to the
"Bank" and the "Equipment Facility".
9. TAXES; INCREASED COSTS; ILLEGALITY
The provisions of clauses 12 ("TAXES"), 13 ("INCREASED COSTS") and 14
("ILLEGALITY") of the Facility Agreement are hereby incorporated by
reference and shall apply, MUTATIS MUTANDIS, to this Agreement as if all
references to the "Banks", the "Loans" and the "Total Outstandings" therein
were references to the "Bank", the "Equipment Loans" and the "sum in
Dollars of the outstanding Equipment Loans at such time", respectively.
10. REPRESENTATIONS AND WARRANTIES
10.1. The provisions of clause 15 of the Facility Agreement, as amended by
Amendment No. 1, dated September 10, 2007, are hereby incorporated by
reference and shall apply, MUTATIS MUTANDIS, to this Agreement as if
all references to the "Banks" therein were references to the "Bank".
10.2. The Borrower confirms that this Agreement is a "Finance Document" as
defined in the Facility Agreement and that, for the avoidance of
doubt, all references to a Finance Document in the Facility Agreement
are, INTER ALIA, references to this Agreement.
- 22 -
11. UNDERTAKINGS
Without derogating from the Borrower's obligations under the Finance
Documents, including the Facility Agreement and the Debenture, the Borrower
undertakes to the Bank that, so long as any sum remains payable by the
Borrower under this Agreement or the Bank is under any obligation to
provide any Financial Indebtedness to the Borrower:
11.1. NEGATIVE PLEDGE
The Borrower shall not create or permit to subsist any Encumbrance on
the whole or any part of the Ramp-Up Equipment or the Charged Account,
save for Permitted Encumbrances.
11.2. DISPOSAL OF RAMP-UP EQUIPMENT
The Borrower will not and will procure that none of its Subsidiaries
will, either in a single transaction or in a series of transactions,
whether related or not and whether voluntarily or involuntarily, sell,
transfer, lease or otherwise dispose of all or any part of or interest
in the Ramp-Up Equipment to any person, except with the prior written
consent of the Bank.
11.3. INSUFFICIENCY IN CHARGED ACCOUNT
The Borrower acknowledges that neither any insufficiency of funds in
the Charged Account, nor any inability to apply any fund in the
Charged Account against any or all amounts owing under this Agreement,
shall at any time limit, reduce or otherwise affect the Borrower's
payment obligations under this Agreement.
11.4. FURTHER CHARGES
Without derogating from the Borrower's obligations under the Facility
Agreement and Debenture, the Borrower undertakes that it shall, from
time to time as requested by the Bank, execute:
11.4.1. a Supplement to the Debenture relating, INTER ALIA, to the
Ramp-Up Equipment and other assets and rights required under the
Debenture to be pledged by way of first-ranking fixed charge in
favour of the Banks, but not as yet specifically included in the
Debenture and shall cause such Supplement to be perfected and
duly registered with the Registrar of Companies and the Registrar
of Pledges and the Borrower shall deliver all documents as
referred to in clause 3.2 of the Debenture (MUTATIS MUTANDIS) and
shall sign all other documents and forms required for the
purposes of the aforegoing; provided that, if any Equipment
Lender is not a Bank, the Borrower undertakes promptly to execute
such further documents evidencing the pledge of the Ramp-Up
Equipment by way of first-ranking fixed charge in favour of the
Bank in such forms as shall be requested by the Bank from time to
time;
- 23 -
11.4.2. notices of assignment by way of charge of all Material
Contracts relating to the Ramp-Up Equipment (other than those
referred to in clauses 1.1.36(c)(i) and (ii) of the Facility
Agreement); and
11.4.3. notices to insurers and acknowledgements of such notices, as
referred to in clause 3.2 of the Debenture with respect to the
Ramp-Up Equipment (other than under Insurance Policies in respect
of liability of the Borrower to third parties or of liability of
the Borrower for damage to property of third parties or of the
type listed in Schedule 16.10.6(d) to the Facility Agreement).
11.5. EQUIPMENT L/CS
Upon the issuance of each Equipment L/C, the Borrower shall promptly
give TIC written notice of the terms and conditions thereof, including
the amount to be paid thereunder and the expiry date thereof, which
notification shall include a reference to the Undertaking and TIC's
responsibility to provide Permitted Subordinated TIC Debt in
connection therewith. The Borrower shall, at the same time as it gives
such notice to TIC, provide the Bank with a copy thereof.
12. DEFAULT
12.1. EVENTS OF DEFAULT
Each of the events set out in clause 12.2 to clause 12.9 is an event
of default ("AN EQUIPMENT FACILITY EVENT OF DEFAULT") (whether or not
caused by any reason outside the control of the Borrower or of any
other person). Promptly after the occurrence of an Equipment Facility
Event of Default, the Borrower will notify the Bank that such
Equipment Facility Event of Default has occurred.
- 24 -
12.2. NON-PAYMENT
The Borrower does not pay any amount payable by it under this
Agreement at the place and in the funds expressed to be payable,
within the earlier of: (a) 7 (seven) Business Days; or (b) 10 (ten)
days, of the due date for payment.
12.3. BREACH OF OBLIGATIONS
There is any breach of any undertaking by the Borrower in this
Agreement and, if such default is capable of remedy within such
period, within 7 (seven) days after receipt by the Borrower of written
notice from the Banks requiring the failure to be remedied, the
Borrower shall have failed to cure such default.
12.4. MISREPRESENTATION/BREACH OF WARRANTIES
Any representation or warranty made or repeated by or on behalf of the
Borrower in this Agreement (including through incorporation by
reference into this Agreement), or in any certificate or statement
delivered by or on behalf of the Borrower or under this Agreement is
incorrect or misleading in any material respect when made or deemed to
be made or repeated.
12.5. INVALIDITY
This Agreement shall cease to be in full force and effect in any
respect or shall cease to constitute the legal, valid, binding and
enforceable obligation of the Borrower or in the case of any Security
Document, fail to provide effective perfected security in favour of
the Bank over the Ramp-Up Equipment.
12.6. DEFAULT UNDER THE FACILITY AGREEMENT
A Default or Event of Default has occurred and is continuing. For the
avoidance of doubt, default under or a breach of the terms and
conditions of Permitted Subordinated Debt (including the Permitted
Subordinated TIC Debt) constitutes an Event of Default under clause
17.6.5 of the Facility Agreement.
12.7. NO ENCUMBRANCE
There shall exist no Encumbrance over the Ramp-Up Equipment other than
Permitted Encumbrances.
- 25 -
12.8. EXECUTION OR OTHER PROCESS
Any execution, attachment, sequestration or other process arising out
of any claim by any third party against the Borrower, save where: (a)
the Borrower is in good faith on reasonable grounds, contesting the
execution, attachment, sequestration or other process by appropriate
Proceedings diligently pursued; (b) the Bank is satisfied that the
ability of the Borrower to comply with its respective obligations
under this Agreement will not be adversely affected whilst such
distress, execution, attachment, diligence or other process is being
so contested; and (c) such process as aforesaid is cancelled or
withdrawn not later than 45 (forty-five) days after the institution
thereof.
12.9. TIC UNDERTAKING
12.9.1. Any of the representations and warranties by TIC in the
Undertaking are incorrect or misleading in any material respect
when made or deemed to be made or repeated.
12.9.2. TIC fails to comply with any undertaking or obligation
contained in the Undertaking and, if such default is capable of
remedy within such period, within 7 (seven) days after the
earlier of TIC becoming aware of such default and receipt by TIC
of written notice from the Bank requiring the failure to be
remedied, that TIC shall have failed to cure such default.
12.9.3. The Undertaking shall cease to be in full force and effect in
any material respect or shall cease to constitute the legal,
valid, binding and enforceable obligation of TIC or it shall be
unlawful for TIC to perform any of its material obligations under
the Undertaking, unless it expires in accordance with its terms.
12.9.4. TIC repudiates the Undertaking.
12.10. ACCELERATION
Upon the occurrence of an Equipment Event of Default and at any time
thereafter while the same is continuing, the Bank may, by notice to
the Borrower:
12.10.1. declare that an Equipment Facility Event of Default has
occurred; and/or
- 26 -
12.10.2. declare that the Equipment Loans together with all Interest
accrued on all Equipment Loans and all other amounts (including
amounts due under clause 14, to the extent applicable) payable by
the Borrower under this Agreement from time to time, shall
thenceforth be repayable on demand being made by the Bank (and in
the event of any such demand, the Equipment Loans, such Interest
and such other amounts shall be immediately due and payable);
and/or
12.10.3. declare the Equipment Loans immediately due and payable,
whereupon they shall become immediately due and payable, together
with all Interest accrued on the Equipment Loans and all other
amounts payable by the Borrower (including, amounts due under
clause 14, to the extent applicable); and/or
12.10.4. declare that the following amounts shall be payable on
demand, or demand that the Borrower immediately place on deposit
in the Charged Account, such deposit to be duly charged, by way
of a first-ranking fixed pledge and charge, to the satisfaction
of the Bank, an aggregate amount equal to the aggregate Maximum
Drawing Amounts of all Equipment L/Cs issued by the Bank.
12.11. EQUIPMENT LOANS DUE ON DEMAND
If, pursuant to clause 12.10.2 above the Bank declares the Equipment
Loans to be due and payable on demand, then and at any time
thereafter, so long as any Equipment Facility Event of Default is
continuing or has not been waived, the Bank may by written notice to
the Borrower require repayment of the Equipment Loans on such date as
the Bank may specify in such notice (whereupon the same shall become
due and payable on such date together with accrued Interest thereon
and any other sums then owed by the Borrower hereunder) or withdraw
such declaration with effect from such date as they may specify in
such notice.
12.12. COLLECTION
In the event of acceleration of the Equipment Loans pursuant to clause
12.10.3 above or of a written notice under clause 12.11 above, then,
without derogating from any other remedies or relief available to the
Bank under law or under this Agreement, the Bank shall be entitled to
take all steps as it deems fit in order to collect all sums owed by
the Borrower to the Bank under or in connection with this Agreement
(including all sums referred to in clause 12.10 above), including, to
realise all or any of the assets secured under the Security Documents
with respect to the Equipment Loans, all at the expense of the
Borrower and to utilise the sums received to repay in part or in full
all amounts owed by the Borrower hereunder.
- 27 -
12.13. INDEMNITY
The Borrower shall indemnify the Bank against any losses, charges or
expenses which the Bank may sustain or incur as a consequence of:
12.13.1. the occurrence of any Equipment Facility Event of Default or
Equipment Facility Default; or
12.13.2. the operation of clauses 12.10, 12.11 or 12.12,
including, any losses, charges or expenses on account of funds
acquired, contracted for or utilised to fund any amount payable under
this Agreement or any amount repaid or prepaid. A certificate of the
Bank as to the amount of any such loss or expense shall be PRIMA FACIE
evidence in the absence of manifest error.
12.14. TERMINATION OF COMMITMENT
In the event of the operation of clause 12.10 above, the Bank shall be
entitled to terminate its Commitments. For the removal of doubt, such
termination shall not derogate from any obligations of the Borrower to
the Bank under this Agreement.
12.15. NO DEROGATION OF RIGHTS UNDER FACILITY AGREEMENT
For the avoidance of doubt, nothing in this Agreement shall derogate
from the rights of the Banks to declare, upon the occurrence of an
Equipment Facility Event of Default, that an Event of Default under
the Facility Agreement has occurred and to exercise any and all rights
of the Banks in connection therewith, including, INTER ALIA, to
declare all of the Loans under the Facility Agreement to be
immediately due and payable.
- 28 -
13. DEFAULT INTEREST
13.1. DEFAULT RATE PERIODS
If any sum due and payable by the Borrower hereunder is not paid (or,
in the case of the sums referred to in clause 12.10.4 above, not paid
or deposited) on the due date therefor in accordance with the
provisions of this Agreement ("UNPAID SUM"), the period beginning on
such due date and ending on the date upon which the obligation of the
Borrower to pay the Unpaid Sum is discharged, shall be divided into
successive periods, each of which (other than the first) shall start
on the last day of such preceding period and the duration of each of
which shall (except as otherwise provided in this clause 13) be
selected by the Bank (such periods selected as aforesaid "INTEREST
PERIODS").
13.2. DEFAULT INTEREST
During each such Interest Period as is mentioned in clause 13.1 above,
an Unpaid Sum shall bear Interest at the rate per annum which is the
sum from time to time of: (a) 3% (three percent); and (b) the Interest
rate in respect of such Interest Period as would have been determined
in accordance with clause 7.1 above (provided that, if, for any such
Interest Period LIBOR cannot be determined, the rate of Interest
applicable to such Unpaid Sum shall be the rate per annum which is the
sum of: (i) 3% (three percent); and (ii) 3% (three percent) plus a
rate as certified by the Bank in accordance with clause 7.4 above.
13.3. PAYMENT OF DEFAULT INTEREST
Any Interest which shall have accrued under clause 13.2 above in
respect of an Unpaid Sum shall be due and payable and shall be paid by
the Borrower at the end of each Interest Period by reference to which
it is calculated or on such other dates as the Bank may specify by
written notice to the Borrower.
- 29 -
14. BROKEN FUNDING INDEMNITY
14.1. BROKEN FUNDING
If the Bank receives or recovers all or any part of any Equipment Loan
otherwise than on the scheduled date of repayment of such amount
relating to such Equipment Loan, the Borrower shall on the first
Interest Payment Date following such repayment on demand pay to the
Bank an amount equal to the amount (if any) by which: (a) the
additional amount of Interest which would, in accordance with the
terms of this Agreement, have been payable on the amount so received
or recovered had it been received or recovered on the following
Interest Payment Date exceeds (b) the amount of Interest which, in the
opinion of the Bank, would have been payable to the Bank on the last
day of such Interest Period in respect of a deposit in the currency of
the relevant Loan, of an amount equal to the amount so received or
recovered, had such an amount been placed by it with a prime bank in
London for a period starting on the date of such receipt or recovery
and ending on the following Interest Payment Date. For the removal of
all doubt: (i) with respect to all or any part of any Equipment Loan
received or recovered otherwise than on the scheduled date of
repayment of such amount relating to such Equipment Loan, the payment
set forth above shall only be made once; and (ii) voluntary or
mandatory prepayments made in accordance with clause 6 above on an
Interest Payment Date shall not be subject to a payment of broken
funding in accordance with this clause 14.1.
14.2. FAILURE TO DRAW AN EQUIPMENT LOAN
In the event that the Borrower shall make any Drawdown Request, but
shall not be entitled to receive the relevant Equipment Loan by reason
of not having fulfilled all of the conditions therefor listed in
clauses 4.1 or 4.2 above, then, without derogating from any other
right of the Bank hereunder and under any applicable law, the Borrower
shall indemnify and compensate the Bank for any and all of the Bank's
costs and expenses in financing the amount requested by the Borrower,
the liquidation of any such funds and including loss of profit of the
Bank by reason of any such event.
15. PAYMENTS
15.1. PAYMENTS BY BORROWER
All payments to be made by the Borrower to the Bank shall be made in
same day funds to the Charged Account, which account shall be duly
charged in favour of the Bank (or if all of the Equipment Lenders are
the Banks, in favour of the Banks) by way of a first-ranking fixed
pledge and charge under the Debenture. All payments required to be
made by the Borrower under this Agreement shall be calculated without
reference to any set-off or counterclaim and shall be made free and
clear of and without any deduction for or on account of, any set-off
or counterclaim.
- 30 -
15.2. PAYMENTS BY BANK TO BORROWER
All payments to be made by the Bank to the Borrower in respect of
Advances shall be made by transfer of such payment to the Charged
Account.
16. SET-OFF; APPLICATION OF PAYMENTS;
CALCULATIONS AND EVIDENCE OF DEBT
The provisions of clause 21 ("SET-OFF"), clause 22 ("APPLICATION OF
PAYMENTS") and clause 23 ("CALCULATIONS AND EVIDENCE OF DEBT") of the
Facility Agreement are hereby incorporated by reference and shall apply,
MUTATIS MUTANDIS, as if all references therein to the "Banks" or any of
them were references to the "Bank".
17. MISCELLANEOUS
The provisions of clause 25 ("ASSIGNMENTS AND TRANSFERS"), clause 26
("REMEDIES AND WAIVERS"), clause 27 ("NOTICES") (other than clause 27.2.3),
clause 28 ("AMENDMENTS"), clause 29 ("COUNTERPARTS"), clause 30 ("GOVERNING
LAW AND JURISDICTION"), clause 31 ("ENTIRE AGREEMENT"), clause 32
("CONFIDENTIALITY") and clause 33 ("BANKS REPRESENTATION") of the Facility
Agreement are hereby incorporated by reference and shall apply, MUTATIS
MUTANDIS, as if all references therein to the "Banks" or any of them or the
"Loans" were references to the "Bank" and the "Equipment Loans".
- 31 -
IN WITNESS WHEREOF, THE PARTIES HAVE SIGNED THIS EQUIPMENT FACILITY AGREEMENT ON
THE DATE FIRST MENTIONED ABOVE.
for: TOWER SEMICONDUCTOR LTD.
By:
_____________________________
Title:
_____________________________
for: BANK HAPOALIM B.M.
By:
_____________________________
Title:
_____________________________
- 32 -
