EXHIBITI 10.20
LOAN AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
This LOAN AGREEMENT made and executed by and between:
ALLEGRO MICROSYSTEMS PHILIPPINES INC., a corporation duly organized and
existing under and by virtue of the laws of the Republic of the Philippines
with principal office and place of business at Sampaguita St., Marimar
Village, Paranaque City, represented herein by its Director of Finance,
Admin. & HR, and its Finance & Accounting Manager, hereinafter referred to
as the "Borrower";
- and -
EQUITABLE PCI BANK, a banking corporation duly organized and existing under
and by virtue of the laws of the Republic of the Philippines with principal
offices at Equitable XXXXxxx Xxxxx 0, Xxxxxx Xxxxxx corner H.V. De la Costa
Street, Makati City, represented herein by Its Executive Vice President,
XXXXXX X. XXXXXXX, and its First Vice President, XXXXXXX X. XXXXXXX,
hereinafter referred to as the "Bank";
WITNESSETH:
WHEREAS, the Borrower has requested the Bank for loans aggregating up to
FORTY SIX MILLION ONE HUNDRED EIGHTY FIVE THOUSAND PESOS (P46,185,000.00) which
amount shall be used to finance and aid its subsidiary company Allegro
Microsystems Philippines Realty, Inc., the acquisition of a portion of a parcel
of land located at ____________ covered by Transfer Certificate of Title No.
__________ presently owned by _______________, and the Bank is willing to grant
such loans on the terms and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the foregoing premises, and of
the mutual covenants and agreements stated herein, the parties hereby agree as
follows:
SECTION 1. DEFINITIONS
1.01. Defined Terms. As used herein, the following terms shall have the
following meanings:
"Agreement" shall mean this Loan Agreement, as amended or supplemented from
time to time.
"Availability Period" shall mean the period from August 1, 2003 up to
December 15, 2003.
"Banking Day" shall mean a day on which commercial banks are open for
business in Makati City, Philippines.
"BSP" shall mean the Bangko Sentral ng Pilipinas or any governmental
authority that succeeds to the functions thereof.
"Collateral" (or collectively the "Collaterals") shall mean the security
documents required by the Bank and indicated under Section 4, in form and
substance satisfactory to the Bank.
"Event of Default" shall mean any one of the Events specified in Section 8.
"Loan" or "Loans" shall mean the principal amount of each drawing under
this Agreement, or (as the context may require) the principal amount thereof
from time to time outstanding.
"MART1" shall mean the quoted yield for the Treasury Xxxx Rate based on
secondary market bids displayed on MART1 page of Bloomberg.
"Note" (or collectively the "Notes") shall mean the promissory note of the
Borrower in form and substance satisfactory to the Bank, or any promissory note
delivered by the Borrower with the consent or upon the request of the Bank in
extension or renewal thereof or in substitution therefor or in consolidation of
all the drawings under this Agreement and evidencing all or part of the Loan.
"Peso/s" or "P" shall mean pesos in the lawful currency of the Republic of
the Philippines.
PHIBOR" shall mean the Philippine Interbank Offer Rate as quoted by Xxxxxx
Monitor Money Rate Services at approximately 11:00 a.m. (Manila Time) on the
business day immediately preceding the first day of such Interest Period.
1.02. Construction. The headings in this Agreement are inserted for
convenience only and shall be ignored in construing this Agreement. Unless the
context otherwise requires, words denoting the singular number shall include the
plural and vice versa, and words denoting persons shall include corporations,
partnerships, business organizations and any government or any agency or
political subdivision thereof. References to Sections are to be construed as
references to the sections of this Agreement.
SECTION 2. AMOUNT AND TERMS
2.01. Loan. Subject to the terms and conditions of this Agreement, the Bank
agrees to grant a loan to the Borrower on any Banking Day during the
Availability Period up to the aggregate principal amount of FORTY SIX MILLION
ONE HUNDRED THOUSAND PESOS (P46,185,000.00). The Bank may, for any cause or
reason and without notice to the Borrower, terminate this Agreement to lend,
without prejudice to any obligation already incurred by the Borrower under this
Agreement.
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2.02. Availability of Loan.
a. The Loan shall be available to the Borrower in one or more drawings on
such Banking Day or Banking Days during the Availability Period as may
be mutually agreed upon by and between the Bank and the Borrower but
always subject to availability of funds on the agreed date of
disbursement.
b. The Borrower shall deliver to the Bank a Notice of Borrowing at least
seven (7) Banking Days (to commence to run after the Bank shall have
determined that all the conditions precedent to the Loan have been
fulfilled), prior to the date of any borrowing hereunder (which date
shall be a Banking Day). The Notice of Borrowing shall be in the form
and substance as may be required by the Bank and shall contain the
Borrower's certification that as of the date of the borrowing, no
Event of Default, and no event which, with the giving of notice or the
passage of time, or both, would constitute an Event of Default, has
occurred or is continuing, that the representations and warranties of
the Borrower contained herein will remain to be true and correct as of
the date of the borrowing and that all conditions precedent required
hereunder, have been met. The notice of Borrowing once received and
accepted by the Bank shall be irrevocable and binding on the Borrower.
Thereafter, in addition to the Bank's other remedies hereunder, the
Borrower shall have full liability and accountability for any costs
incurred by the Bank resulting from the Borrower's failure to effect
the drawing or a failure to satisfy the conditions for such drawing,
including losses from re-employment of funds obtained for the drawing
at rates lower than the cost of such funds. The Bank shall certify
such costs and losses and shall notify the Borrower of the aggregate
amount thereof, and such costs and losses as determined by the Bank
shall be binding and conclusive on the Borrower.
c. The Bank, at its sole discretion, may waive the required Notice of
Borrowing.
2.03. Interest. The Borrower hereby promises to pay on the Interest Payment
Date/s, as stated in Section 2.04(a), interest (computed on the basis of a year
of 365 days and actual days elapsed) on the outstanding balance of the principal
amount of each Loan from the date of each Loan until full payment thereof at the
rate of two point five percent (2.5%) per annum over and above the applicable
Base Rate, plus the applicable final/withholding tax, value added tax and/or
gross receipts tax, if any.
The Base Rate, to be set on the Interest Payment Date shall be the 90-day
MART 1 Rate.
The Alternative Base Rate as defined herein shall be used automatically in
lieu, of the Base Rate on the interest payment date if difference between the
90-day PHIBOR and the Base Rate is greater than one hundred fifty (150) basis
points on the actual repricing date.
The "Alternative Base rate" shall be the average of the latest 90-day MART
1 Rate and the 90-day PHIBOR prevailing on actual repricing date + 2.5% + plus
the applicable final/withholding tax, value added tax and/or gross receipts tax,
if any.
For purposes of the Loan, Interest Period shall mean each of the successive
periods of three (3) months into which the period between the date of Borrowing
and the last Payment Date
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is to be divided. Each Interest Period shall end on the numerically
corresponding day of each third month period after the date of Borrowing (or if
there is no day so corresponding in such month, such Interest Period shall end
on the last day of such month): Provided, that if any Interest Period would
otherwise end on a day which is not a Banking Day, such Interest Period shall be
extended to the next succeding day which is a Banking Day, unless the result of
such extension would be to carry such Interest Period over into another calendar
month, in which event such Interest Period shall end on the immediately
preceding Banking Day.
In the event that:
(i) the interest rate to be applied to the Loan for any Interest
Period cannot be ascertained in accordance with Section 2.03, or
(ii) the Bank, on or prior to the commencement of any Interest Period,
shall have determined, whether or not such determination shall be by reason
of any change in law, rule or regulation or in the interpretation or
administration thereof and which determination shall be conclusive and
binding upon the borrower, that the applicable interest rate determined in
accordance with Section 2.03 does not or will not accurately reflect the
cost to the Bank of maintaining the Loan(s) during such Interest Period,
the Bank shall promptly give written notice of such event to the Borrower.
Within a period of 30 calendar days following the giving of such notice, the
Borrower and the Bank shall negotiate in good faith with a view toward
ascertaining an alternative mutually satisfactory basis for determining the
interest rate to be applied to the Loan. If within such a 30-day period the
Borrower and the Bank shall have agreed on a substitute interest rate, it shall
be retroactive to and take effect from the first day of the relevant Interest
Period. If within such 30-day period the Borrower and the Bank shall fail to
agree in writing upon such substitute interest rate, then the Borrower shall
prepay the Loan in full, without any prepayment penalty, on the first Banking
Day following the expiry of such 30-day period, but with accrued interest from
the last day of the preceding Interest Period to the date of such prepayment at
the rate applicable for the immediately preceding Interest Period.
In the event that:
(i) any of the principal of the Loan(s) or any installment thereof,
or
(ii) any interest due thereon, or
(iii) any other sum due hereunder or under the Note(s),
shall not be paid in full when due (whether at stated maturity, by acceleration
or otherwise), the Borrower shall pay the Bank a default penalty on any such
amount, whether of principal or of interest or of any and all amounts, from the
due date thereof until payment thereof in full, at a rate of three percent (3%)
per month, or a fraction of a month, above and in addition to the interest rate
payable under this Agreement and the Note(s), and such default penalty shall be
payable from time to time on demand by the Bank.
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Interest not paid when due shall, at the Bank's option and 30 calendar days
after it falls due, be added to and become part of the principal and shall bear
the same rate of interest as the principal.
2.04. Notes; Repayment.
a. The Loan shall be for a term of FIVE (5) YEARS years inclusive of a
grace period of ONE (1) YEAR in the payment of amortization in the principal and
shall be evidenced by Note(s) in the amount of such Loan, which Note(s) shall be
dated as of the date of drawing, and be payable with respect to principal and
interest as follows (date of payment called "Payment Date/s"):
Principal : Payable in sixteen(16) quarterly amortization to commence
on the numerically corresponding day at the end of the
fifth (5th) quarter from the date of initial borrowing and
every numerically corresponding day of each third month
thereafter (or if there is no day so corresponding in such
month, the last day of the month), until full payment of
the Loan.
Interest : Payable quarterly in arrears in accordance with the rate
provided in Section 2.03 of this Agreement, to commence on
the numerically corresponding day of the third month from
the date of initial borrowing and every numerically
corresponding day of each third month thereafter (or if
there is no day so corresponding in such month, the last
day of such month), until full payment of the Loan.
b. All sums payable to the Bank hereunder or under any document
contemplated herein, including but not limited to payments of interest and
principal, other fees and any costs, losses, indemnities or expenses, shall be
payable in cleared funds in the currency in which the Loan was obtained not
later than 12:00 noon of the due date(s) of such amount(s).
c. Any payment made to the Bank hereunder shall be applied first against
costs, expenses, losses and indemnities due hereunder, then against fees due to
the Bank, then against default penalty, if any, then against interest due on the
Loan(s), then against the Loan(s) due and payable, and thereafter to the
prepayment of the Loan(s) in accordance with Section 2.06.
2.05. Consolidation of Notes; Cancellation; Adjustment. If and as the Bank
shall from time to time request, the Borrower shall execute and deliver to the
Bank a replacement note (for purposes only of this Section 2.05, the
"Replacement Note") in the aggregate principal amount of the Loan(s) which shall
have been disbursed by the Bank and shall be outstanding at the time of such
request. Upon the delivery of such Replacement Note, any note which shall have
been issued or delivered to the Bank shall be canceled and, in addition,
appropriate adjustments shall be made so that there shall be no loss to the Bank
or to the Borrower in respect of any principal of the Loan or the interest
thereon. The issuance of the Replacement Note shall not be construed as a
novation with respect to the Loan(s).
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2.06. Prepayments. The Borrower may prepay the Loan, in full or in part,
subject to the following conditions:
a. the Borrower shall give at least thirty (30) calendar days irrevocable
prior written notice to the Bank of the amounts and the date (which
shall be a Banking Day) of such prepayment;
b. for loans with multiple interest payment dates, each prepayment shall
be made on an interest payment date;
c. prepayment shall be in minimum multiples of PESOS: ONE MILLION
(PHP1,000,000.00);
d. the Borrower shall pay accrued interest on the amount prepaid and any
incremental tax;
e. for installment loans, each partial prepayment shall be applied to the
principal amount of installments in the inverse order of their
maturity (i.e., to the last maturing installment or installments of
principal) or, at the sole option of the Bank, to installments of
principal and interest succeeding the date of prepayment; and
f. amounts paid may not be reborrowed hereunder.
2.07. Conclusiveness of Bank's Books. The books of the Bank shall be deemed
final and conclusive evidence concerning the amount due it from the Borrower..
SECTION 3. FUNDING AND YIELD PROTECTION
3.01. Taxes.
a. All payments due to the Bank hereunder or under the Notes, whether of
principal, interest, penalties, fees or otherwise, shall be made without set-off
or counterclaim, and free and clear of and without any deduction or withholding
on account of any taxes (including, without limitation, the final or withholding
tax on interest payable to the Bank hereunder and gross receipts tax and/or
value-added tax thereon), all of which shall be for the account of the Borrower
and paid by it directly to the relevant taxing or other authority when due. If
the Borrower shall be required by law to make any deduction or withholding in
respect of taxes from any payment hereunder, the sum payable shall be increased
as will result in the receipt by the Bank, after such deduction or withholding,
of the amount that would have been received if such deduction or withholding had
not been required. Whether by voluntary or involuntary pretermination or
acceleration of the Loan, the Borrower shall be liable to pay any resulting tax
deficiencies, penalties, surcharges and incremental taxes on the Gross Receipts
Tax, as well as on all other applicable taxes that may be imposed.
b. The Borrower shall forward to the Bank copies of official receipts or
other evidence acceptable to the Bank establishing the rate and payment of taxes
within ten (10) calendar days of such payment.
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c. The Borrower's obligations under this Subsec. 3.01 shall survive the
repayment of the Loan to the extent that the obligations hereunder have not been
fully discharged by the Borrower to the prejudice of the Bank.
3.02. Change in Circumstances. In the event that there shall hereafter
occur any change in any applicable law or regulation which shall increase (i)
the cost to the Bank of maintaining any reserves or special deposits against the
Loan or (ii) any other cost of complying with any law, regulation or condition
with respect to such Loan, and the result of any of the foregoing is to increase
the cost to the Bank of making or maintaining the Loan or to reduce the amount
of any payment (whether of principal, interest or otherwise) receivable by the
Bank hereunder, then the Borrower shall pay or reimburse to the Bank such amount
as will compensate it for such additional cost or reduction of payment.
3.03. Change in Regulations. Notwithstanding anything to the contrary
contained herein, in the event that there shall hereafter occur any change in
applicable law or regulation or in the interpretation or administration thereof,
which shall make it unlawful for the Bank to maintain or give effect to its
obligations as contemplated under this Agreement or to receive the intended
benefits of this Agreement, then by written notice to the Borrower, the Bank may
(i) declare its obligation to lend hereunder terminated, and it shall thereby be
terminated, and (ii) require payment immediately of the principal amount of the
Loan then outstanding as well as accrued interest thereon together with such
additional amounts as may be necessary to compensate the Bank from loss
pertaining to the cost of re-employment of funds so repaid at rates lower than
the cost to the Bank of such funds. The Bank shall certify the aggregate amount
of such losses and costs to the Borrower (which certification shall include a
reasonably detailed description of such costs and expenses) and such
certification shall be binding and conclusive on the Borrower.
3.04. Funding Costs and Losses. The Borrower shall indemnify the Bank
against any cost or loss in connection with the unwinding or liquidating of any
deposits, funding or financing arrangement that the Bank may in good faith incur
as a result of (i) any Loan not being made by the Bank due to the failure of the
Borrower to satisfy the conditions specified in Sec. 6 on the proposed date of
borrowing, or (ii) any prepayment or repayment of the Loan of the Bank on a date
that is not an Interest Payment Date.
SECTION 4. SECURITY
As security for the prompt and full payment by the Borrower when due
(whether at stated maturity, by acceleration or otherwise) of all amounts
payable to the Bank under this Agreement and the Note, whether of principal,
interest or otherwise, as well as for the faithful performance of all other
terms and conditions of this Agreement and the Note, the Borrower agrees to
execute and deliver, or cause to be executed and delivered, to the Bank the
Collaterals indicated below in form and substance acceptable to the latter on or
prior to the date of the initial drawing hereunder:
- Real Estate Mortgage constituted over the property described in and
covered by Transfer Certificate of Title No. _______________ of the
Register of Deeds of Manila registered under the name of
_________________, including all
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improvements existing thereon and to be erected thereon the same
property which will be purchased as referred to in the first whereas
clause;
- Comfort Letter by Allegro Microsystems, Inc. (USA);
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Bank to enter into this Agreement and to grant the Loan to
the Borrower, the Borrower represents and warrants to the Bank (which
representations and warranties shall survive the execution and delivery of this
agreement and the making of the Loan) that:
5.01. Corporate Existence. The Borrower is a corporation duly organized,
validly existing and in good standing under Philippine laws and has the
corporate power to own its property and to carry on its business as now being
conducted.
5.02. Corporate Power and Authorization. The Borrower has the corporate
power to execute and deliver, and to perform its obligations under, this
Agreement, the Note, and the Collateral, and has taken all necessary corporate
and legal action to authorize each of the foregoing; and, to the extent that any
Collateral is executed, or any property subject of any Collateral is owned, by a
person other than the Borrower, such person has the power to execute and deliver
and to perform its obligations under such Collateral and has taken all necessary
legal action to authorize the same.
5.03. Patents and Copyrights. The Borrower possesses the patents,
copyrights, trademarks and trade names needed to conduct its business.
5.04. Validity and Enforceability. This Agreement and the Note(s) and the
Collateral, constitute legal, valid and binding obligations of the Borrower
enforceable in accordance with their respective terms; and, to the extent that
any Collateral is executed, or any property subject of any Collateral is owned
by a person other than the Borrower, such Collateral constitutes legal, valid
and binding obligations of such person, enforceable in accordance with its
terms.
5.05. No Default. No event has occurred which constitutes a default by the
Borrower under or in respect of ay agreement, undertaking or instrument to which
the Borrower is a party or by which it or any of its assets or properties may be
bound, and no event has occurred which with the giving of notice, lapse of time
or other condition would constitute a default by the Borrower under or in
respect of any such agreement, undertaking or instrument.
5.06. Pending or Threatened Action. There are no pending or (to the
knowledge of the Borrower) threatened action or proceedings before any court or
administrative agency of any jurisdiction which may materially and adversely
affect the financial condition or operations of the Borrower.
5.07. General Condition. The balance sheet of the Borrower as of the end of
the calendar quarter immediately preceding the date hereof, and other related
statements of income and retained earnings, submitted to the Bank in connection
with this Agreement, correctly set forth the financial condition of the Borrower
as of the dates thereof, and since such dates there has been no material adverse
change in the financial condition or the operations of the Borrower.
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There are no substantial liabilities of the Borrower, direct or contingent, not
reflected in such balance sheet.
5.08. Taxes. The Borrower has prepared and filed with the appropriate
governmental authorities, national and local, all tax returns required to be
filed, and the Borrower has paid all taxes shown to be due on such tax returns
and on all assessments received by it, to the extent that such taxes and
assessments have become due, or has provided adequate reserves for the payment
thereof. The Borrower is not a party to any pending action or subject of any
proceeding by or before any governmental authority for the assessment or
collection of taxes.
5.09. Title. The Borrower has good title to all of its properties, free and
clear of all liens, encumbrances, restrictions, pledges, mortgages, security
interest or charges, except any thereof as have been disclosed to the Bank in
writing prior to the date of this Agreement.
5.10. Ranking. The Loan and the Note will at all times, with respect to
said Collateral, rank first in priority of payment against all other obligations
of the Borrower. Should the Collateral be insufficient to fully satisfy the
obligations of the Borrower to the Bank, the Loan and the Note, to the extent of
the insufficiency or lack of Collateral, will at all times be direct and
unconditional obligations of the Borrower and will at all times rank at least
pari passu in right of payment with all the indebtedness of the Borrower with
any person, whether outstanding or hereafter incurred.
5.11. Non-violation of Articles, By-Laws, Existing Agreements. The Borrower
has not violated any of the provisions of its Articles of Incorporation or
By-Laws, or any existing agreement.
5.12. Laws, Orders, Consents, Approvals. The Borrower has complied with all
laws and lawful orders and has obtained all the necessary consents and approvals
in regard to the Loan and the conduct of its business operations.
SECTION 6. CONDITIONS PRECEDENT
The eligibility of the Borrower to avail itself of the Loan under this
Agreement is subject to the condition precedent (the fulfillment of which shall
be determined solely by the Bank) that the Bank shall have received, not less
than three (3) Banking Days prior to date of the drawing:
a. Articles and By-Laws. Copies of Articles of Incorporation and By-Laws
of the Borrower, certified true by the Corporate Secretary of the
Borrower.
b. Secretary's Certificate. A certificate executed by the Corporate
Secretary/Assistant Corporate Secretary of the Borrower, attesting to
the passage and continuing validity of resolutions:
(i) approving and authorizing the execution, delivery and
performance of this Agreement, the Note, the Collateral and all other
documents, instruments and deeds required hereunder, and
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(ii) authorizing designated officer/s to execute and deliver this
Agreement, the Note and the Collateral and other documents,
instruments and deeds required hereunder on behalf of the Borrower and
attesting to the specimen signature of each such designated officer/s.
To the extent that any Collateral is executed, or any property subject
of any Collateral is owned, by a person other than the Borrower, the
certificate herein required shall, with respect to such Collateral, be
issued by the Corporate Secretary/Assistant Corporate Secretary of
such person.
c. Governmental Approvals. Certified copies of all governmental
approvals, authorizations and consents that, in the opinion of the
Bank, are required or necessary for the due execution, delivery,
performance and enforceability of this Agreement, the Note(s) and
related documentation, together with such other documents as may be
necessary to evidence approval by the appropriate government agency of
the form of the Note.
d. Collateral. The Bank shall have received the Collateral, duly executed
and delivered by the Borrower or, as the case may be, the owner of any
property subject of the Collateral, or, in case of a Surety/Guaranty
Agreement, by persons designated by the Bank.
e. Opinion of Counsel to Borrower. When required by the Bank, favorable
opinion of Counsel to the Borrower, dated as of the date of the
drawing and addressed to the Bank, with respect to the matters
referred to in Section 5.01 through 5.12 (except Section 5.07) and
with respect to such other matters as the Bank or its Counsel may
reasonably request, in form and substance satisfactory to the Bank and
its Counsel.
f. Opinion of Counsel to Bank. Favorable opinion of the Bank's Counsel,
as to sufficiency in form and substance of the documents delivered to
the Bank hereunder and as to such other matters as the Bank may
reasonably request.
g. Note. The Note evidencing the Loan.
h. No default and representations. A notarized certificate that no event
of Default or other event that, with the giving of notice or lapse of
time or both, would become an Event of Default, shall have occurred
and be continuing as of the date of such Loan, and that the
representations made by the Borrower in this Agreement shall be true
and correct as of the date of such Loan.
SECTION 7. COVENANTS OF THE BORROWER
7.01. Positive Covenants. Until payment in full of the Loan and any other
amount due under this Agreement and the Note, and unless the Bank shall
otherwise consent in writing:
a. Collateral. The Borrower shall maintain, at its expense, the
Collateral in full force and effect in accordance with their
respective terms. If, in the sole opinion
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of the Bank, any such Collateral shall have been impaired or
diminished in value, or is found to have been the subject of a prior
lien or adverse claim, the Borrower shall immediately deliver such
other Collateral as may be acceptable to the Bank.
b. Use of proceeds. The Borrower shall use the proceeds of the Loan
obtained from the Bank for the sole purpose stated in the preamble of
this Agreement.
c. Reports. The Borrower will furnish the Bank:
(i) within sixty (60) calendar days after the close of each
quarterly period of the fiscal year of the Borrower, unaudited
financial statements of the Borrower, as of the end of such quarterly
period, certified by an authorized officer of the Borrower;
(ii) within one hundred twenty (120) calendar days after the
close of the fiscal year of the Borrower, copies of the annual audited
reports of the Borrower, certified by independent accountants of
recognized standing acceptable to the Bank, including balance sheets
as of the end of such fiscal year and earnings and surplus statements
of the Borrower for such fiscal year;
(iii) such other accounting reports or interim statements or
certifications that may be requested from time to time by the Bank,
within ten (10) calendar days from date of request;.
d. Appraisals. The Borrower shall submit an appraisal of properties
mortgaged pursuant to Section 4 conducted by an appraisal company
acceptable to the Bank every two (2) years.
e. Inspection of Properties and Examination of Books. The Borrower shall
allow any duly authorized officer of the Bank to inspect the
properties and examine the books of accounts of the Borrower.
f. Corporate Existence. The Borrower shall preserve and maintain its
corporate existence and all rights, privileges and franchises
necessary or desirable in the normal conduct of its business
(including without limitation any governmental approval or
certification necessary or advisable for the legality, validity and
enforceability of this Agreement, the Note and, the Collateral),
conduct its business in an orderly, efficient and regular manner and
keep in good working order and condition, ordinary wear and tear
excepted, all properties necessary in its business.
g. Taxes and Assessments. The Borrower shall duly pay and discharge all
taxes, assessments and governmental charges of whatsoever nature and
by whomsoever levied upon it or against its properties prior to the
date on which penalties attach thereto, unless and to the extent only
that the same shall be contested in good faith and by appropriate
proceedings by the Borrower.
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h. Insurance. The Borrower shall, at its own expense:
(i) keep its properties including the Collateral adequately
insured at all times by financially sound and reputable insurers
acceptable to the Bank and maintain such insurance, to such extent and
against such risks as is customary with companies in the same or
similar business;
(ii) maintain in full force and effect public liability insurance
against claims for personal injury or death or properly damage
occurring upon, in, about or in connection with the use of any
property owned, occupied or controlled by the Borrower, in such amount
as the Bank shall reasonably deem sufficient; and
(iii) maintain such other insurance as may be required by law.
The Borrower shall submit to the Bank within ten (10) calendar days
from the date of payment, the original copy/ies of the official
receipt/s issued by the insurance company, evidencing payment of
premiums for the insurance coverage for the Collateral.
At any time during the life of the Loan, the Bank may at its option,
secure insurance coverage for the Collateral in an amount and with
such insurance company as may be acceptable to the Bank, and debit the
premium on such insurance against any fund or account of the Borrower
in the possession or control of the Bank or charge the Borrower for
reimbursement of said premiums, with interest at the highest rate
permissible by law. The Bank may furnish to the insurance agency or
company any information contained in the loan application for purposes
of securing the above insurance coverage. The Borrower shall not
secure any additional insurance policy on the Collateral without the
consent of the Bank and without properly endorsing in favor of the
Bank the policies corresponding thereto.
Each insurance policy for the Collateral shall, by virtue of these
presents, be considered assigned to the Bank, which shall, as such
assignee of the original and of the additional policy or policies,
have authority to settle or liquidate, in case the risks insured
should occur, all claims pertaining to said policy and apply the
proceeds thereof to the account of the Borrower, which shall be
credited only with cash that the Bank may receive for said property,
and only from the date it actually receives the same.
i. Current Ratio. The Borrower shall maintain at all times a ratio of
current assets to current liabilities of at least 1.75X TO 1. For
purposes hereof, "current assets" and "current liabilities" (including
taxes and other proper accruals) of the Borrower shall be determined
in accordance with generally accepted accounting principles and
practices.
j. Debt to Equity Ratio. The Borrower shall maintain at all times a total
debt-to-equity ratio of not more than 2.0X. For purposes hereof, the
term "total debt" shall mean the aggregate amount of all short-term
and long-term liabilities of the Borrower. "Equity" shall mean the
aggregate issued share capital, surplus
12
reserves, retained earnings account and any incremental revaluation on
a balance sheet of the Borrower, computed in accordance with generally
accepted accounting principles.
k. Debt Service Coverage Ratio. The Borrower shall maintain at all times
a debt service coverage ratio of at least 1.50x. For purposes hereof,
the term "Debt Service Coverage Ratio" shall mean the sum of earnings
before income taxes, interest expenses, depreciation and amortization
divided by the sum of the current maturing long-term debt and interest
payments (on short-term and long-term debt).
l. Continuing Consents and Approvals. The Borrower shall maintain in full
force and effect all authorizations, approvals, licenses or consents
obtained in connection with this Agreement from any governmental
authority or agency, or any entity or person, and shall secure such
further authorizations, approvals, licenses or consents which may be
necessary or required in order that the Borrower may fulfill its
obligations under this Agreement and the other instruments mentioned
herein.
m. Compliance with Law. The Borrower shall comply in all respects with
all applicable laws, rules and regulations.
n. Other obligations. The Borrower shall promptly perform all its
obligations and pay all its indebtedness under any agreement to which
it is a party or by which it is bound as well as promptly comply with
all its commitments with any governmental agency or authority for the
continued enjoyment of its tax exemptions and/or other privileges.
o. Financial Records. The Borrower shall maintain adequate financial
records in accordance with generally accepted accounting principles in
the Republic of the Philippines and permit the Bank or its
representatives to examine such records and discuss the business of
the Borrower with any of its officers.
p. Maintenance of Property. The Borrower shall maintain its property,
plant and equipment in good order and repair and shall allow the Bank
to examine the same during reasonable hours.
q. Certificate of No Default and Notice of Default. The Borrower shall
furnish the Bank:
(i) simultaneous with the unaudited financial statements a
certificate dated not more than ten (10) calendar days prior to the
delivery thereof, stating that no event has occurred and is continuing
which constitutes or which, with the giving of notice or lapse of time
or both, would constitute an Event of Default; and
(ii) within five (5) calendar days after the occurrence of any
event which constitutes or which, with the giving of notice or lapse
of time or both,
13
would constitute an Event of Default, notice of such occurrence,
together with a detailed statement by an authorized officer of the
Borrower as to the nature thereof and the steps taken and/or being
taken by the Borrower to cure such event.
r. Notice of Adverse Action. The Borrower shall give the Bank prompt
written notice of:
(i) any action, suit or proceeding at law or in equity or by or
before any governmental instrumentality or other agency which, if
adversely determined, could materially impair the ability of the
Borrower to carry on its business substantially as now conducted, or
could adversely affect its ability to observe and perform its
obligations under this Agreement and the Note or
(ii) any other event or matter of any nature whatsoever which
adversely affects the operations, properties, assets or condition,
financial or otherwise, of the Borrower or
(iii) any proposal by any public authority to acquire the assets
or business of the Borrower.
s. Notice of Change of Address. The Borrower shall give the Bank written
notice of any change of address five (5) Banking Days prior to such
change.
t. Reports. The Borrower shall promptly execute and deliver such
additional reports, documents and other information with respect to
the business, properties, assets or condition, financial or otherwise,
of the Borrower as the Bank may reasonably require from time to time
to perfect and confirm to the Bank all its rights, powers and remedies
hereunder, as well as additional agreements and instruments as may be
reasonably required by the Bank.
u. Title. The Borrower shall maintain, warrant and defend the rights,
title and interests of the Bank hereunder, under the Note, and with
respect to all properties included in the Collateral.
7.02. Negative Covenants. Until payment in full of the Loan and any other
amount due under this Agreement and the Note and unless the Bank shall otherwise
consent in writing:
a. Debt. The Borrower shall not incur any debt with a maturity of more
than one year.
b. Encumbrances. The Borrower shall not create or suffer to exist any
lien, security interest or other charge or encumbrance of any other
type of preferential arrangement, upon or with respect to any of its
properties, whether now owned or hereafter acquired, or assign any
right to receive income for the purpose of securing any other debt.
c. Nature of Business. The Borrower shall not make any material change in
the present nature of its business taken as a whole.
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d. Ownership or Management. The Borrower shall not cause or allow a
substantial change in its present majority ownership or management nor
shall the Borrower voluntarily suspend its business operations or
dissolve its affairs.
e. Merger or Consolidation. The Borrower shall not enter into any merger
or consolidation or any change in its ownership.
f. Sale or Lease of Assets. The Borrower shall not sell, lease or
otherwise transfer a substantial portion of its assets except in the
ordinary course of business.
g. Loans, Investments, Advances. The Borrower shall not make any loans or
advances to or investment in/with its directors, officers,
stockholders, subsidiaries or affiliates, which will significantly
change the scope or nature of its business or operations, and any
loans, investments, advances or subsidies to any corporation.
h. Lease of Collateral. In the event the Collateral is a Real Estate
Mortgage, the Borrower shall not lease part or whole of such
Collateral to any banking or financial institution other than the
Bank.
i. Guarantee. The Borrower shall not assume, guarantee, endorse, or
otherwise become directly or contingently liable in connection with
any obligation of any other person, firm or corporation except by
endorsement of negotiable instruments for deposit or collection or
similar transactions in the ordinary course of the Borrower's
business.
j. Dividends/Repurchase of Shares. The Borrower shall not declare or pay
any cash dividend, management bonus or profits pursuant to a profit
sharing or similar plan to any of its officers or stockholders or
redeem or repurchase any outstanding share or make any capital or
asset distribution to its stockholders. Neither shall the Borrower
declare cash dividends if payment of such dividends will result in
non-compliance with the ratios specified in Section 7.01.
k. Prepayment. The Borrower shall not prepay any other indebtedness
unless the Borrower shall, if the Bank so requires, contemporaneously
make a proportionate prepayment of the Loan.
l. Articles and By-Laws. The Borrower shall not amend its Articles of
Incorporation or By-Laws, reorganize, undertake a
quasi-reorganization, reduce its capital or change its fiscal year
which will materially and adversely affect the financial ability or
capacity of the Borrower to perform its obligations under this
Agreement or impair or adversely affect the Loan.
SECTION 8. EVENTS OF DEFAULT
If any of the following Events of Defaults shall have occurred and be
continuing:
a. The Borrower shall fail to pay when due the Loan, any installment
thereof, or any other amount payable under this Agreement, the Note or
under the Collateral; or
15
b. The Borrower shall default in the due performance or observance of any
other covenant contained in the Agreement, the Note or the Collateral,
or if the Collateral is executed or any property subject of any
Collateral is owned, by a person other than the Borrower, such person
shall default in the due performance or observance of any covenant
contained in such Collateral, and such default shall remain unremedied
for a period of five (5) calendar days after the Borrower shall have
received written notice thereof from the Bank; or
c. Any statement, representation, or warranty made by the Borrower in
this Agreement, in the loan application or in any other document
delivered or made pursuant thereto shall prove to be incorrect or
untrue in any material respect; or
d. The Borrower/any subsidiary or affiliate fails to pay or defaults in
the payment of any installment of the principal or interest relative
to, or fails to comply with or to perform, any other obligation, or
commits a breach or violation of any of the terms, conditions or
stipulations, of any agreement, contract or document with the Bank or
any third person or persons to which the Borrower/any subsidiary or
affiliate is a party or privy, whether executed prior to or after the
date hereof, under which credit has or may have been extended to such
Borrower/subsidiary or affiliate by the Bank or such third person or
persons or under which the Borrower has agreed to act as guarantor,
surety or accommodation party, which, under the terms of such
agreement, contract, document, guaranty or suretyship, including any
agreement similar or analogous thereto, shall constitute a default
thereunder; or
e. The Borrower/any subsidiary or affiliate shall become insolvent or
unable to pay its debts as they mature, or take advantage of
insolvency, moratorium, or other laws for the relief of debtors, or
there shall be commenced against the Borrower/any subsidiary or
affiliate any proceeding under such laws, or any judgment or order is
entered by a court of competent jurisdiction for the appointment of a
receiver, trustee or the like to take charge of all or substantially
all of the assets of the Borrower; or
f. Any act or deed or judicial or administrative proceeding in the nature
of an expropriation, confiscation, nationalization, intervention,
acquisition, seizure, or condemnation of or with respect to the
Borrower, the business and operations, management, or ownership
thereof, or its capital stock, property, or assets, or any substantial
portion thereof shall be undertaken or instituted by any government,
governmental agency, or authority, present or future, of the Republic
of the Philippines; or
g. Any of the concessions, permits, rights, franchises, or privileges
required for the conduct of the business and operations of the
Borrower or for its enjoyment of certain tax exemptions and/or other
privileges shall be revoked, canceled or otherwise terminated, or the
free and continued use and exercise thereof shall be curtailed or
prevented, or the occurrence of any act in general, whether similar or
not to the foregoing, in such manner as materially and adversely to
affect the
16
financial condition or operations of the Borrower as reasonably
determined by the Bank; or
h. There shall have occurred a material change in the business assets or
financial circumstances or condition of the Borrower (including,
without limitation, the making of any investment unrelated to the
Borrower's business, excessive losses due to having made unnecessary
investments or having exposed itself to unnecessary risks, the
undertaking of a major expansion program or permitting earnings before
interest and taxes to fall below a level which would be necessary to
service the interest expense on present and future loan obligation)
which, in the reasonable opinion of the Bank, would adversely affect
the ability of the Borrower to perform its obligations under this
Agreement and the Note; or
i. In the reasonable opinion of the Bank, the Borrower shall have
abandoned the Project or the completion thereof, whether such
abandonment shall have occurred within the Availability Period or
during the effectivity of this Agreement; or
j. Any adverse circumstances occurs, which in the reasonable opinion of
the Bank, materially or adversely affects the ability of the Borrower
to perform its obligations under this Agreement; or
k. Any of the events of default enumerated in the Note shall occur; or
l. An attachment or garnishment of or levy upon any of the properties of
the Borrower is made; or
m. The Collateral or any document related thereto or any other document
which serves as security for the Loan shall for any reason (at any
time after their execution and delivery) become ineffective, impaired
or cease to be in full force and effect or declared null and void or
the applicability thereof to the Loan is disaffirmed by the Borrower,
or any right or lien established or created in favor of the Bank in
and under the Collateral is lost or otherwise impaired;
then, and in any such event, the Bank may by written notice to the Borrower
declare all amounts owing to the Bank under this Agreement/the Note, whether of
principal, interest or otherwise, to be forthwith due and payable, whereupon all
such amounts shall become immediately due and payable without demand or other
notice of any kind, all of which are expressly waived by the Borrower, provided,
that no such declaration of amounts due and payable shall be necessary in case
of an event of default under Section 8(a) and 8(d) upon the occurrence of which
default the whole principal sum and/or all installments thereof, together with
accrued interest and all other charges and penalties due thereon, shall
immediately become due and payable without demand or notice of any kind, all of
which the Borrower expressly waives. The Borrower shall pay on demand by the
Bank, in respect of any amount or principal paid in advance of stated maturity
pursuant to this Section 8, a prepayment penalty equal to three per cent (3%) of
the amount prepaid.
17
SECTION 9. MISCELLANEOUS
9.01. Right of Set-Off. The Borrower authorizes and empowers the Bank,
without need of notice to the Borrower, to apply funds of the Borrower on
deposit or otherwise with the Bank in reduction of amounts due or owing under
this Agreement and the Note.
9.02. Right to Sell and Transfer Properties of Borrower. The Borrower
hereby irrevocably constitutes and appoints the Bank as its attorney-in-fact
with full power and authority and without the necessity of prior notice, to
negotiate, sell and transfer by public or private sale any of the Borrower's
stocks, securities, bonds or personal properties of which the Bank may be in
possession and to apply the proceeds of such sale or disposition to the payment
of the obligations of the Borrower to the Bank.
9.03. Application of Payments. The Borrower waives its rights under Article
1252 of the Civil Code of the Philippines to designate the application of its
payment and irrevocably authorizes the Bank or its assigns to apply such payment
to any of its existing obligations to the Bank or its assigns, at the Bank's
discretion.
9.04. Expenses. The Borrower agrees to pay to the Bank, on demand, all
costs and expenses of the Bank, including without limitation all notarial fees,
stamps taxes and other charges, incurred or payable in connection with the
execution, registration or enforcement of this Agreement, the Note, the
Collateral and other documents required to be executed in connection herewith.
9.05. No Waiver; Cumulative Remedies. No failure to exercise and no delay
in exercising on the part of the Bank, any right, power or privilege hereunder,
under the Note(s), the Collateral or any other document executed in connection
herewith, shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege preclude any other or further exercise
thereof, or the exercise of any other right or power. The rights and remedies
herein provided shall be cumulative, may be exercised concurrently and shall not
be exclusive of any rights or remedies of the Bank under the Note and the
Collateral, if any, or granted by law.
9.06. Amendments. No amendment or waiver of any provision of this Agreement
shall in any event be effective unless the same shall be in writing and signed
by the Bank and the Borrower, and such amendment or waiver shall be effective
only in the specific instance or for the special purpose for which given. No
notice to or demand on the Borrower in any case shall entitle the Borrower to
any other notice or demand in similar circumstances.
9.07. Notices. All notices, requests or demands to or upon any party hereto
shall be in writing, addressed to such party at its address set forth herein or
as may be subsequently specified in a written notice to the other party. Each
notice, request or demand shall be deemed effective, if by personal delivery,
when received and if by mail, five (5) days after being deposited in the post
office, postage prepaid.
9.08. Attorney's Fees and Liquidated Damages. If upon default by the
Borrower the Bank shall engage the services of legal counsels, the Borrower
agrees to pay attorney's fees equal to fifteen percent (15%) of the total amount
due from the Borrower to the Bank but in no case less than P20,000.00),
exclusive of all expenses of collection and all costs, and liquidated
18
damages equal to fifteen percent (15%) of the total amount due but in no case
less than P20,000.00.
9.09. Venue. The parties hereby agree that any legal action, or proceeding
arising out of or relating to this Agreement or the Note(s) shall be instituted
only in the proper court of Makati City, without prejudice to the right of the
Bank to proceed against the Collateral, either judicially or extrajudicially in
the sheriff's office of the jurisdiction wherein any of the properties covered
thereby is located. The Borrower waives all other venues.
9.10. Successors. This Agreement shall be binding upon and inure to the
benefit of the Borrower and the Bank and their respective successors, endorsees
and assignees, provided that the Borrower may not assign or transfer any of its
rights or obligations hereunder.
9.11. Severability. In case any one or more of the provisions contained in
this Agreement, the Note(s) or the Collateral shall be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby.
9.12. Counterparts. This Agreement may be signed in any number of
counterparts. Any single counterpart or a set of counterparts signed, in either
case, by all the parties hereto shall constitute a full and original agreement
for all purposes.
9.13. Inconsistency. Should there be any inconsistency between the
provisions of this Agreement and the Note(s), those of the former shall prevail.
9.14. Solidarity. If the term "Borrower" is defined in Sec. 1.01 as the
collective reference to two or more persons, the obligations of the Borrower
stipulated in this Agreement shall be deemed to be the joint and several
obligations of such persons and the representations and covenants of the
Borrower set forth herein shall be deemed to be the representations and
covenants of each such persons.
THE BORROWER REPRESENTS THAT ITS DULY AUTHORIZED REPRESENTATIVE/S HAS/HAVE
CAREFULLY READ ALL THE PROVISIONS OF THIS AGREEMENT AND HAS/HAVE UNDERSTOOD ALL
THE TERMS AND CONDITIONS STATED HEREIN. THE BORROWER FURTHER REPRESENTS THAT AT
THE TIME ITS REPRESENTATIVE/S SIGNED THIS AGREEMENT, ALL THE BLANK SPACES HAVE
BEEN CORRECTLY AND COMPLETELY FILLED-UP.
19
IN WITNESS WHEREOF, the parties hereto have signed this Agreement on
_____________, at Makati City, Philippines.
ALLEGRO MICROSYSTEMS EQUITABLE PCI BANK
PHILIPPINES INC.
Borrower
TIN:000-419-293-000 TIN:_____________________
By: /s/ Xxxxxxxxx X. Meroy, Jr. By: /s/ Xxxxxx X. Xxxxxx
--------------------------------- ------------------------------------
Name: Xxxxxxxxx X. Meroy, Jr. Name: Xxxxxx X. Xxxxxx
Designation: Dir. of Fin., Admin. & HR Designation: Executive Vice President
[stamp affixed]
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
------------------------------------- ----------------------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx
Designation: Fin. & Acctg. Manager Designation: First Vice President
SIGNED IN THE PRESENCE OF:
/s/ Xxxxx Xxxxx Xxxxxxx /s/ Xxxx X. Alcars
------------------------------------- ----------------------------------------
Xxxxx Xxxxx Xxxxxxx Xxxx X. Alcars
ACKNOWLEDGMENT
REPUBLIC OF THE PHILIPPINES )
MAKATI CITY ) S.S.
BEFORE ME, Notary Public for and in the above jurisdiction, this OCT 10
2003 personally appeared:
NAME COMM. TAX CERT. NO. DATE/PLACE ISSUED
---- ------------------- -------------------------
ALLEGRO MICROSYSTEMS 00132939 00-00-00/Xxxxxxxxx Xxxx
XXXXXXXXXXX INC.
By: Xxxxxxxxx X. Meroy, Jr. 20206731 01-10-03/ Paranaque City
--------------------------------- 11935923 00-00-00/ Xxxxxxxxx Xxxx
Xxxxxx X. Xxxxxxx
EQUITABLE PCI BANK
By: Xxxxxx X. Xxxxxxx 14496022 04-11-03 / Makati City
--------------------------------- 00695188 04-14-03 / Paranaque City
Xxxxxxx X. Xxxxxxx
known to me and to me known to be the same persons who executed the foregoing
instrument, and they acknowledged to me that the same is their free and
voluntary act and deed and the free and voluntary act and deed of the
corporations herein represented.
20
This instrument refers to a Loan Agreement and consists of ______________
(________) pages signed by the parties and their witnesses on all pages
including the one on which this acknowledgment is written.
IN WITNESS WHEREOF, I have hereunto affixed my signature and notarial seal
on the date and place first above written:
Doc. No. 343
Page No. 70
Book No. LXXV
Series of 2003
/s/ [illegible]
-------------------------------------
/s/ Xxxxxxxx X. Xxxx
----------------------------------------
Xxxxxxxx X. Xxxx
Notary Public
until Dec. 31, 2003
XXX X.X. Xx. X-00 0000
Xxx. 02 January 2003
21
