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EXHIBIT 10.2
DATED THIS 30TH DAY OF APR 1999
BETWEEN
UNITED TEST AND ASSEMBLY CENTER (S) PTE LTD
as Borrower
AND
THE DEVELOPMENT BANK OF SINGAPORE LIMITED
as Lender
=================
DEED OF DEBENTURE
=================
AC RL se 99 K9028
XXXXXXX XXXX & PARTNERS
SINGAPORE
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C O N T E N T S
PAGE
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1. BANKING FACILITIES 1
2. CHARGES 2
3. STIPULATIONS RELATING TO INTEREST AND OTHER MATTERS 3
4. DEPOSIT OF DEEDS 3
5. FURTHER SECURITY 4
6. CONTINUING SECURITY 4
7. PROHIBITION AGAINST OTHER CHARGES 4
8. POSITION OF OTHER SECURITY 4
9. REPRESENTATIONS AND WARRANTIES 4
10. AFFIRMATIVE UNDERTAKINGS 7
11. NEGATIVE UNDERTAKINGS 11
12. DEFAULT INTEREST AND DEBIT OF ACCOUNT 12
13. SECURITY ENFORCEABLE IN CERTAIN EVENTS 13
14. POWERS OF THE LENDER ON EVENTS OF XXXXXXX 00
00. APPOINTMENT OF RECEIVER 16
16. POWERS OF RECEIVER 16
17. APPOINTMENT OF RECEIVER AS ATTORNEY 18
18. APPLICATION OF MONEYS BY RECEIVER 18
19. APPOINTMENT OF RECEIVER NOT AFFECTING OTHER POWERS 18
20. APPOINTMENT OF LENDER AS ATTORNEY 18
21. SPECIAL CONSULTANT 19
22. SET-OFF 19
23. RIGHT OF REVIEW 19
24. NO ENQUIRY BY THIRD PARTY 20
25. THE LENDER NOT ANSWERABLE FOR LOSS 20
26. INDEMNITY 20
27. DISCLOSURE 21
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PAGE
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28. CALCULATIONS AND EVIDENCE 21
29. WAIVER NOT TO PREJUDICE RIGHT OF LENDER 22
30. INDULGENCE OF THE LENDER NOT TO DISCHARGE THE BORROWER 22
31. RIGHT OF CONSOLIDATION 22
32. CURRENCY INDEMNITY 22
33. TAXES 23
34. CHANGE IN CIRCUMSTANCES 24
35. PAYMENT OF COSTS 24
36. SERVICE OF DEMAND OR NOTICE 25
37. RIGHT OF ASSIGNMENT 26
38. SEVERABILITY 27
39. GOVERNING LAW AND SUBMISSION TO JURISDICTION 27
40. INTERPRETATION 27
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THIS DEED OF DEBENTURE is made the day of One
thousand nine hundred and ninety-nine (1999) Between:-
1. UNITED TEST AND ASSEMBLY CENTER (S) PTE LTD (Company Registration
No. 199708070H), a company incorporated in Singapore and having its
registered office at 00 Xxxxxx Xxxx #00-00/00 Xxxxxxxxx X Xxxxx,
Xxxxxxxxx 000000 (hereinafter called the "Borrower"); and
2. THE DEVELOPMENT BANK OF SINGAPORE LIMITED, a company incorporated in
Singapore and having its registered office at 0 Xxxxxxx Xxx, XXX Xxxxxxxx
Xxxxxxxxx 000000 (hereinafter called the "Lender").
WHEREAS at the request of the Borrower, the Lender has agreed to make
available to the Borrower advances loans credit and other facilities to such an
extent and for so long as the Lender may think fit (hereinafter called the
"banking facilities" which expression shall where the context so admits include
any part thereof) upon the security and on the terms and conditions hereinafter
appearing.
NOW THIS DEBENTURE WITNESSETH as follows:-
1. BANKING FACILITIES
In consideration of the Lender agreeing to grant or continuing to grant the
banking facilities to the Borrower to such an extent and for so long as the
Lender may think fit the Borrower hereby covenants with the Lender as follows:-
(a) To pay to the Lender on demand all such sums of moneys which are now
or shall from time to time and at any time hereafter be due or owing
to the Lender by the Borrower solely or jointly with any other person
or persons and whether as principal or surety or which the Borrower
may be or become liable to pay to the Lender anywhere on any account
or otherwise or in any manner whatsoever and all other liabilities
whether certain or contingent including the balance for the time being
owing for or in respect of cheques bills notes drafts or other
negotiable or non-negotiable instruments accepted paid or discounted
for and on behalf of the Borrower whether solely or jointly with
another or others or for any other payments credits or advances made
to or for the use or accommodation of or on behalf of the Borrower
whether solely or jointly with another or others pursuant to or in
respect of or under any guarantee or letter of credit given
established or opened by the Lender for the Borrower or any contracts
for the forward delivery of goods bills or specie or in respect of any
other banking facilities whatsoever whether or not given upon or under
any trust receipts or other security whatsoever or otherwise howsoever
together with in all cases aforesaid interest next hereinafter
covenanted to be paid calculated on such basis and with such periodic
rests as are applicable under the agreements and arrangements giving
rise to the relevant obligations or liabilities and if no such rate or
rates are specified, at such rate or rates which the Lender may at the
time and from time to time stipulate and together also with commission
discount and other usual bankers' charges And if when any such account
current or otherwise shall
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be closed or ceased to be current a balance shall be owing or
remaining unpaid to the Lender so long as the same or any part thereof
shall remain owing or unpaid to pay to the Lender interest thereon at
the rate or rates for the time being applicable under the agreements
or arrangements giving rise to the relevant obligations or liabilities
and if no such rate or rates are specified, at such rate as the Lender
may at the time and from time to time stipulate from the time when
such balance shall have been ascertained to the date of actual payment
both after as well as before judgment (if any) obtained in respect
thereof.
(b) To pay to the Lender interest on the principal amount of the banking
facilities from time to time owing or remaining unpaid to the Lender
as aforesaid and all other moneys secured or intended to be secured
hereby at such rate or rates per annum or other rates and calculated
in such manner as applicable under the agreements or arrangements
giving rise to the relevant obligations or liabilities and if no such
rate or rates are specified, at such rate or rates per annum or other
rates and calculated in such manner as the Lender may at the time and
from time to time stipulate as applicable respectively to various
lines or kinds of the banking facilities or other moneys or
liabilities owing to the Lender or in various cases as the Lender may
prescribe as well after as before judgment (if any) obtained in
respect thereof.
2. CHARGES
(a) For the consideration aforesaid, the Borrower as beneficial owner hereby
charges with the payment to the Lender of the banking facilities, interest
thereon and all other moneys and liabilities whatsoever hereby agreed to be
paid by the Borrower under this Debenture or intended to be hereby secured
(including all fees charges costs and expenses arising out of or in
connection with the provisions of this Debenture):-
(i) by way of fixed charge all and singular all estates and other
interests in leasehold, freehold and other immovable property, all
plant, machinery and fixtures, all chattels hired, leased or rented
by the Borrower to any other persons together with the benefit of the
related hiring, leasing or rental contract and other security
therefor and all other fixed property and assets of the Borrower
whatsoever and wheresoever situate, all stocks, shares, warrants,
debentures, loan capital and other securities of any kind and all
rights and income relating thereto, the goodwill and uncalled capital
of the Borrower and all patents, patent applications, trademarks,
trade names, registered designs and copyrights and all licences and
ancillary and connected rights relating to the intangible property of
the Borrower, in all cases aforesaid, both present and future; and
(ii) by way of floating charge the whole of the undertaking of the
Borrower and all and singular its property and assets (other than the
property and assets hereinbefore charged) whatsoever and wheresoever
situate, both present and future, including all stocks, raw
materials, works-in-progress, goods-in-progress (whether such are
upon its premises or in the course of
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transit) and all its products whether finished or unfinished and all
book and other debts due and owing to the Borrower.
(b) The Lender shall be entitled at any time after the occurrence of an Event
of Default by notice in writing to the Borrower to convert the floating
charge created by Clause 2(a)(ii) into a fixed charge affecting all
property and assets which for the time being are the subject of such
floating charge or, as the case may be, such of the said property and
assets as are specified by such notice and without prejudice and in
addition to the aforesaid, in such an event, the Borrower covenants with
the Lender, upon demand, to execute at its own cost, as a continuing
security for the payment or discharge of all moneys hereby secured or
intended to be hereby secured, a first fixed charge in terms specified by
the Lender of all or any part of the property and assets comprised in this
security (or such part thereof as is specified in such notice).
(c) Without prejudice to Clause 7 and the other provisions of this Debenture,
if at any time the Borrower charges, pledges or otherwise encumbers in
breach of Clause 7 any of the property or assets of the Borrower comprised
in this security or if any of the property and assets of the Borrower
comprised in this security shall be in danger of seizure, distress,
execution or other legal process, the floating charge created under this
Debenture over those property or assets shall automatically without notice
operate as a fixed charge instantly on such event occurring and in
addition, the Lender shall be entitled without notice to the Borrower to
take possession of or hold the same or to appoint a Receiver thereof
Provided That the Lender shall give notice to the Borrower as soon as
practicable after taking possession or taking hold of the same or
appointment, as the case may be. The provisions of Clauses 15 and 16 shall
govern the appointment, removal and powers of a Receiver appointed under
this Clause as if he were a Receiver appointed under that Clause.
3. STIPULATIONS RELATING TO INTEREST AND OTHER MATTERS
It is hereby expressly agreed and declared as follows:-
(a) if the Borrower shall execute or create any further or subsequent
mortgage charge or incumbrance fixed or floating over or otherwise
deal with any of the property or assets comprised in this security or
any part or parts thereof in favour of any other person of which the
Lender receives notice either actual or constructive the Lender may on
receiving such notice forthwith open a new or separate account with
the Borrower in the books and if the Lender does not in fact open such
new or separate account, then unless the Lender gives express written
notice to the contrary to the Borrower the Lender shall nevertheless
be deemed to have done so at the time when the Lender received or was
deemed to have received such notice (hereinafter called the "time of
notice") and as from and after the time of notice all payments in
account made by the Borrower or by or on behalf of the Borrower to the
Lender shall (notwithstanding any legal or equitable rule of
presumption to the contrary) be placed or deemed to have been placed
to the credit of the new or separate account so opened or deemed to
have been opened as aforesaid and shall not go in reduction of the
amount owing by the Borrower to the Lender at the time of notice.
PROVIDED ALWAYS that nothing in this paragraph contained shall
prejudice the
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security which the Lender otherwise would have had hereunder for the
payment of the moneys costs charges and expenses herein referred to
notwithstanding that the same may become due or owing or be incurred
after the time of notice;
(b) this security shall continue to be valid and binding for all purposes
notwithstanding--
(i) any change by amalgamation reconstruction or otherwise which
may be made in the constitution of the company by which the
business of the Borrower or the Lender may for the time being
be carried on and shall be available to the company carrying on
the business of the Borrower or the Lender for the time being,
or
(ii) any winding-up (whether voluntary or compulsory), amalgamation
or reconstruction of or affecting the Borrower or the Lender;
or
(iii) any order placing the Borrower or the Lender under judicial
management of a judicial manager;
(c) In addition to the provisions hereof, the Borrower shall perform,
observe and shall be bound by the terms and conditions of the
agreements and arrangements applicable to the relevant banking
facilities advanced by the Lender to the Borrower from time to time
and in the event of any contradictions and/or inconsistencies between
the terms arid conditions of such agreements and/or arrangements and
the terms and conditions contained in this Debenture, the terms and
conditions in such agreements and/or arrangements shall prevail.
4. DEPOSIT OF DEEDS
The Borrower will deposit with the Lender and the Lender during the
continuance of this security shall be entitled to hold and retain all deeds and
documents of title relating to the Borrower's property for the time being both
movable and immovable.
5. FURTHER SECURITY
The Borrower will at any time, if and when required by the Lender so to do,
execute and deliver to the Lender or as the Lender shall direct, at the
Borrower's cost and expense mortgages charges assignments pledges or transfers
whether legal or otherwise over all or any of the Borrower's property comprised
in the security created under this Debenture movable and immovable now belonging
to or which may hereafter be acquired by or belong to the Borrower (including
any vendor's lien) to secure all moneys and liabilities whatsoever hereby
secured such mortgages charges assignments pledges or transfers to contain such
terms and provisions as the Lender may require.
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6. CONTINUING SECURITY
The security hereby created shall not be considered satisfied by any
intermediate payment or satisfaction of the whole or any part of any sum or sums
of moneys owing as aforesaid or otherwise but shall constitute and be a
continuing security to the Lender and extend to cover all or any sum or sums of
moneys whatsoever which shall for the time being be owing by the Borrower to the
Lender.
7. PROHIBITION AGAINST OTHER CHARGES
During the continuance of this security, the Borrower shall not and shall
not have power without the prior written consent of the Lender, such consent not
to be unreasonably withheld, to:-
(1) create or agree or permit to subsist or arise any encumbrance whatsoever,
whether fixed or floating or otherwise howsoever on or over all or any of the
Borrower's properties or assets or revenues or any part thereof, both present
and future whatsoever and wheresoever situate except that the foregoing
prohibitions shall not apply to (i) pledges of goods, the related document of
title and/or other related documents as security for indebtedness directly
relating to such goods or documents on or over which that pledge exists,
(ii) security arising out of title retention provisions in a supplier's standard
conditions of supply of goods purchased by the Borrower in its ordinary course
of business and (iii) any encumbrance created by the CTB Securities; or
(2) factor or assign any of its accounts receivables except pursuant to the CTB
Securities; or
(3) sell, transfer or otherwise assign, deal with or dispose ail or any part of
its business (whether outright by a sale and repurchase or sale and leaseback
arrangement or otherwise) or (except (i) as permitted under the terms of this
Debenture or (ii) for good consideration in the ordinary course of its business
or (iii) for disposal of obsolete assets, or production assets no longer
required for the purpose of the Borrower's business, in each case, for cash on
normal commercial terms or (iv) payment of cash as consideration in the
acquisition of any asset on normal commercial terms or (v) for disposals of
nonproduction assets where the aggregate value of such assets disposed of in a
financial year does not exceed Singapore Dollars One Hundred Thousand
(S$100,000.00) in the total) its assets or property or revenues, whether by a
single transaction or a number of transactions whether related or not and
whether voluntarily or involuntarily.
8. POSITION OF OTHER SECURITY
Nothing contained in this Debenture shall prejudice or affect any lien to
which the Lender is entitled or any other charge mortgage or security which the
Lender holds or may at any time hold from the Borrower or others on any account
whatsoever.
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9. REPRESENTATIONS AND WARRANTIES
(1) The Borrower hereby represents and warrants to and for the benefit of the
Lender as follows:-
(a) it is a company duly incorporated and validly existing under the laws
of Singapore and has full power and authority and the legal rights to
own assets, to conduct the business which it conducts and to xxx and
be sued in its own name;
(b) it has full corporate power and authority and the legal rights to
borrow moneys, enter into and execute this Debenture, exercise its
rights and perform and comply with its obligations under this
Debenture;
(c) it has taken or obtained all necessary corporate and other action to
authorise the execution and delivery of this Debenture and the
consummation and performance of the transactions contemplated by this
Debenture and no limitation on its powers will be exceeded as a result
of the transactions to be undertaken pursuant to this Debenture;
(d) this Debenture constitutes legal, valid and binding obligations of the
Borrower and is enforceable in accordance with its terms;
(e) the certified copies of its Memorandum and Articles of Association and
corporate documents delivered to the Lender are true accurate complete
and up to date copies of the Memorandum and Articles of Association
and corporate documents of the Borrower as at the date of such
delivery;
(f) that all action, conditions and things required to be taken, fulfilled
and done including the obtaining of any necessary exchange approvals
or any other authorizations, filing, registration, documentation or
claim in order (i) to enable the Borrower to lawfully enter into,
exercise its rights and perform and comply with its obligations under
this Debenture, including without prejudice to the generality to the
aforesaid, its obligations to pay and remit to the Lender all moneys
due under this Debenture, (ii) to ensure that those obligations are
legal, valid, binding and enforceable, (iii) to ensure that those
obligations will at all times rank in accordance with Clauses 9(1)(I)
and 10(p), and (iv) to ensure that all necessary steps and/or actions
required to make this Debenture admissible as evidence in the courts
of Singapore have been taken, done, fulfilled and obtained and there
has been no default in the observance of the conditions or
restrictions (if any) imposed in or in connection with any of the
same;
(g) all its audited financial statements which have been submitted to the
Lender under this Debenture were prepared in accordance with
applicable laws and regulations of Singapore in accordance with
generally accepted accounting practices and principles applied on a
consistent basis and are complete and correct and fairly represent the
financial condition of the Borrower and the results of its operations
for the period stated;
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(h) the statements, documents and information supplied in writing by it to
the Lender concerning itself, its property, assets and revenues, its
accounts, businesses or operations (including any cashflow or other
projections, appraisals, reports and forecasts) and all related
matters required under this Debenture are to the knowledge of the
Borrower (having made all enquiries) true and correct in all material
respects and do not contain any material misstatement of fact or omit
to state any material fact and were made after due and careful
consideration on the Borrower's part or on the part of its agents and
are, in the Borrower's considered opinion, fair and reasonable in the
circumstances prevailing at the time when such projections,
appraisals, reports or forecasts were made in the light of the
assumptions made, and the Borrower is not aware of any fact or
circumstances which if disclosed would necessitate a material revision
to any such projections, appraisals, reports or forecasts, or which
might adversely affect the Lender's decision on whether or not to make
the banking facilities available to it or to maintain the banking
facilities;
(i) there is no provision of (i) any existing laws, regulation or
authorization to which the Borrower is subject to which materially and
adversely affect the Borrower's ability to perform its obligations
under this Debenture, or (ii) any existing mortgage, trust, deed,
contract, licence, permit, franchise, concession, agreement or treaty
binding on the Borrower which is being or will be contravened or
breached by the acceptance by the Borrower of the banking facilities
or the execution of this Debenture by the Borrower or by the
Borrower's performance or observance of any of its obligations under
this Debenture and which will result in an Event of Default or which
will result in the creation of or oblige the Borrower to create an
encumbrance in respect of any of its assets or property;
(j) it is not in default in the payment or performance of any of its
obligations for borrowed moneys exceeding a maximum aggregate of
Singapore Dollars One Million (S$1,000,000.00) at any time;
(k) that, save (i) as previously disclosed in writing to and agreed by the
Lender, (ii) for CTB Securities, and (iii) for the encumbrances and
charges in favour of Citibank N.A. and United Overseas Bank Limited
which will be discharged by the Borrower prior to the utilization of
any of the banking facilities, no encumbrance exists over all or any
part of the properties, undertaking, assets or revenues of the
Borrower;
(l) the claims of the Lender against the Borrower under this Debenture
will rank first in priority of payment and security against the claims
of all its creditors to the extent of the security created hereunder
and otherwise at least pari passu in right and priority of payment
with all its other present and future unsecured indebtedness except
those claims preferred by any bankruptcy, insolvency, liquidation or
other similar laws affecting creditors' rights generally;
(m) no Event of Default or Potential Event of Default (other than any
waived) has occurred and is continuing;
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(n) there are no litigation, arbitration or administrative proceedings
pending, current or to the knowledge of the Borrower, threatened
against or affecting the Borrower or the Borrower's assets which will
materially and adversely affect the Borrower's ability to perform its
obligations under this Debenture;
(o) no steps have been taken or are being taken to appoint either a
receiver, liquidator, administrator, trustee, judicial manager or
similar officer to take over the assets of the Borrower or to wind up
the Borrower;
(p) there is no material adverse change in its business, assets or
financial condition from that set forth in the latest financial
statements submitted to the Lender by it pursuant to Clause 10(f);
(q) neither the Borrower nor any of the assets of the Borrower are
entitled to immunity from suit, execution, attachment or other legal
process and the Borrower's entry into this Debenture and the exercise
of the Borrower's rights and performance of its obligations under this
Debenture constitute private and commercial acts performed for private
and commercial purposes;
(r) all authorizations required from any governmental or other authority
or from any shareholders or creditors of the Borrower for or in
connection with the execution, validity and performance of this
Debenture have been obtained and are in full force and effect;
(s) that, save as previously disclosed in writing to and agreed by the
Lender, the Borrower is the legal and beneficial owner of all the
undertaking, assets and property secured by this Debenture.
(2) Except as may be expressly provided otherwise in an agreement or
arrangement relating to a banking facility granted by the Lender to the
Borrower, each of the representations and warranties contained in Clause 9(1)
(except Clause 90)(e)) shall be true and correct in all material respects at all
times with reference to the facts and circumstances existing at all such times
until all moneys payable or agreed to be paid to the Lender under this Debenture
are fully repaid.
10. AFFIRMATIVE UNDERTAKINGS
The Borrower hereby undertakes to and agrees with the Lender that so long
as any moneys remain to be lent or remain payable under this Debenture:-
(a) it shall maintain its corporate existence and will carry on and
conduct its business in such manner so as not to affect its ability to
perform any of its obligations under this Debenture;
(b) it shall procure that this Debenture is and will be maintained in full
force and effect and shall obtain all such authorizations, licences
and consents which are or may become necessary for it to perform its
obligations under this Debenture and to comply with and observe all
terms, conditions and
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restrictions (if any) imposed in connection with any of the foregoing
and maintain or accomplish any filing, registration, documentation or
claim with any court, judicial, administrative or governmental agency
or other authority or person which may be or become necessary for such
purposes and maintain in full force and effect all such
authorizations, licences and consents as are referred to in Clause 9
and take immediate steps to obtain and thereafter maintain in full
force and effect any other authorizations which may become necessary
or advisable for the purposes stated therein;
(c) it shall from time to time on request by the Lender and at its own
expense, execute, sign, perfect, do and procure the doing of and if
required register every document, act or thing as in the opinion of
the Lender may be necessary for giving full effect to this Debenture
or securing to the Lender the full benefits of all rights, powers and
remedies conferred upon the Lender in this Debenture;
(d) in so far as may be necessary, it shall amend its Memorandum and
Articles of Association and any other corporate documents as to enable
it to observe and perform all the covenants, undertakings,
stipulations, terms, conditions and other provisions of this
Debenture;
(e) it shall use the various lines or kinds of banking facilities only for
the purpose for which they were granted and the Borrower shall not use
Singapore dollar funds from any such banking facilities for any
financial investments, trade or other activities outside Singapore;
(f) it shall:-
(i) furnish to the Lender annually and in any event not later than
six (6) months after the close of each financial year of the
Borrower beginning with the current financial year, certified
copies of the Borrower's audited financial statements, in each
case including a balance sheet and a profit and loss account
together with its directors' reports for the period then ended
prepared in accordance with generally accepted accounting
practices and principles consistently applied in Singapore and
certified by an internationally recognised firm of independent
accountants acceptable to the Lender;
(ii) furnish to the Lender not later than thirty (30) days after the
relevant period, certified copies of the Borrower's interim
unaudited financial statements, in each case including a
balance sheet and a profit and loss account relating to the
Borrower containing financial information (in no less detail
than those which had been prepared prior to the date of this
Debenture) in respect of successive quarterly periods during
the Borrower's financial years;
(iii) furnish to the Lender as soon as they are available and in any
event not later than thirty (30) days after the end of each
yearly period of this Debenture, a certificate signed by one of
its directors
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certifying that there did not and does not exist any Event of
Default or Potential Event of Default as at the end of such
yearly period (or if an Event of Default or Potential Event of
Default did exist, setting out details of the same and of any
action taken or proposed to be taken to remedy it);
(iv) promptly furnish and provide the Lender with and permit the
Lender to obtain all such statements, information, explanations
and data (except information of a confidential or proprietary
nature) as the Lender may reasonably require regarding the
affairs, operations, administration, financial or corporate
state or condition of the Borrower or any guarantor (which
expression shall hereinafter include but not be limited to (if
any) any surety or indemnitor or any owner of any property
mortgaged or charged to the Lender at the request of the
Borrower or at the request of the Lender with the consent of
the Borrower as security for the moneys secured or intended to
be secured hereby) or any of the matters in this Clause 10
mentioned, and without prejudice to the generality of the
foregoing, the Borrower shall, upon request, furnish and
provide the Lender with a list of all persons, firms,
corporations, companies or groups of companies which the
Borrower is able to control or influence so as to enable the
Lender to comply with the provisions of section 29 of the
Banking Act (Chapter 19, Singapore Statutes), as amended or
re-enacted from time to time, and shall forthwith inform the
Lender of any change in such list as soon as such change
occurs;
(v) promptly notify the Lender of any material adverse change in
its condition (financial or otherwise) and of any litigation,
action, proceedings or claim being threatened or initiated
against it before any court, tribunal, arbitrator or
administrative agency or any other matter, and in all cases,
which might materially and adversely affect its operations or
financial condition or its ability to perform its obligations
under this Debenture;
(vi) immediately notify the Lender of the occurrence of any Event of
Default or a Potential Event of Default after becoming aware
thereof;
(g) punctually pay all rents rates assessments taxes and all outgoings
payable in respect of any land and/or premises belonging to the
Borrower or at which it carries on business and obtain all necessary
licences and comply with all laws regulations rules and orders
relating to the carrying on of its business on such premises;
(h) take out and maintain a policy of insurance in respect of the
Borrower's liability or potential liability to its employees under the
common law and the Workmen's Compensation Act (Chapter 354, Singapore
Statutes), as amended or re-enacted from time to time, or any
statutory modification thereof for the time being in force;
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(i) furnish to the Lender particulars of any kind of immovable property
now owned by the Borrower and hereafter acquired or to be acquired by
the Borrower;
(j) keep all its plant machinery equipment buildings constructions
fixtures fittings implements and other effects subject to the charges
hereunder in good and substantial repair and proper working condition
to the satisfaction of the Lender;
(k) the Borrower will, unless otherwise agreed by the Lender in writing,
take out and maintain or cause to be taken out and maintained all
risks policies of insurance in the joint names of the Borrower and the
Lender with an insurance company nominated or selected by the Lender,
fully insuring all the Borrower's assets and property comprised in
this security against, inter alia, loss or damage by fire, lightning,
riots, extraneous perils and all other risks commonly covered with
respect to properties and business of a similar kind and such policies
shall be in such amounts and shall contain such terms and provisions
as shall be reasonably approved by the Lender, and shall contain
standard mortgagee clauses naming as loss payee the Lender and the
policies shall be delivered to and retained by the Lender; that the
Borrower will punctually pay all premiums payable in respect of the
said policies of insurance and submit to the Lender copies of the
receipts for such payments and will, in respect of premiums payable
for renewal of such policies, pay the premiums before the expiry dates
of the policies and submit to the Lender copies of the receipts for
every such payment not less than three (3) business days before such
expiry date, and if the Borrower fails to comply with the provisions
of this sub-Clause the Lender may at its discretion (but without any
obligation on its part to do so) have such insurance effected at the
cost of the Borrower and all moneys paid by the Lender in respect of
such insurance shall on demand be repaid by the Borrower to it and
until repayment shall be added to the principal moneys secured by this
Debenture and bear interest at such rate or rates for the time being
applicable under the agreements or arrangements giving rise to the
relevant obligations or liabilities and if no such rate or rates are
specified, at such rate as may be determined at the time and from time
to time by the Lender and all other statutory powers of insurance for
the said moneys so paid by the Lender as aforesaid may be exercised by
the Lender;
(l) it will not, except with the consent of the Lender, effect or keep on
foot any insurance against any risk in respect of any building or
structure comprised in this security where any insurance hereinbefore
mentioned has been effected or kept on foot;
(m) all moneys received or receivable under any of the policies of
insurance aforesaid by whomsoever effected shall be paid to the Lender
and applied towards making good the loss or damage incurred or at the
election of the Lender towards payment to the Lender in reduction of
all moneys due or owing to the Lender in such manner as the Lender may
agree and if any such moneys are received by the Borrower the Borrower
shall hold the same in trust for the Lender and pay it promptly to the
Lender or as the
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Lender shall direct and the Lender may receive and give a good
discharge for any such moneys;
(n) it shall immediately upon the occurrence of the event concerned notify
the Lender of:-
(i) the giving of notice by the Borrower or any guarantor (if a
corporation) to convene a general meeting for passing any
resolution to wind up the Borrower or that guarantor; or
(ii) the filing of any application for placing the Borrower or any
guarantor (if a corporation) under any scheme with a view to
readjustment, rescheduling or deferral of its indebtedness
generally or under the judicial management of a judicial
manager or any analogous or equivalent process which they have
in the courts of Singapore or in any other jurisdiction in
which the Borrower or that guarantor carries on business; or
(iii) the filing of any petition for its liquidation or winding-up of
the Borrower or any guarantor (if a corporation); or
(iv) the filing of any application for the bankruptcy of any
guarantor (if an individual).
Where such notification as aforesaid is given verbally by the Borrower
to the Lender, the Borrower shall confirm the same in writing within
twenty-four (24) hours thereof;
(o) it shall deliver to the Lender upon demand any documents or evidence
under the provisions hereof the production of which has been waived
and to comply with all the terms and conditions of any provisions
hereof which have been waived;
(p) it shall ensure that at all times the claims of the Lender against the
Borrower under this Debenture shall rank first in priority of payment
and security against the claims of all its creditors to the extent of
the security created under this Debenture and otherwise at least pari
passu in right and priority of payment with all is other present and
future unsecured indebtedness;
(q) after the occurrence of an Event of Default, the Lender shall be
entitled after prior notification to the Borrower enter into and upon
its premises and inspect the same and all property and assets
whatsoever therein or thereon and to inspect all the records and
statements of the Borrower and all the assets, property and
undertaking comprised in this Debenture wherever the same may be
situate and to make inventories, records or copies thereof and the
Borrower shall give the Lender such written authorities or other
directives and provide such facilities and access as the Lender may
require for the aforesaid inspection and the Borrower agrees to pay
all reasonable costs and expenses (including any travelling expenses)
which the Lender may incur in connection with the inspection;
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(r) the Lender shall have the right to inspect all materials machinery and
equipment on order prior to their despatch from the supplier to the
Borrower and/or at any time thereafter;
(s) it shall forthwith inform the Lender in writing of any changes in the
directors or members of the Borrower;
(t) it shall maintain a positive networth of not less than United States
Dollars Forty-Two Million (US$42,000,000.00) at all times. For the
purpose of this Clause, "networth" means at any time in respect of the
Borrower the amount calculated in accordance with generally accepted
accounting principles in Singapore of the aggregate at the time of
(i) the amounts paid up or credited as paid up in respect of its
issued share capital, and (ii) its retained earnings less the
aggregate at that time of (a) all losses carried forward to the extent
to which the same have not been taken into account in the computation
of retained earnings, (b) the amount of any deficit in reserves and
excluding any surplus arising from a revaluation of the assets of the
Borrower and (c) any amount attributable to goodwill;
(u) it undertakes with the Lender that at all times its financial position
shall be such that Net Borrowings shall not exceed one hundred per
cent (100%) of net worth. For the purposes of this sub-clause, the
expressions:-
(i) "net worth" has the same meaning as in Clause 10(t);
(ii) "Net Borrowings" at any time means the aggregate Financial
Indebtedness of the Borrower (including without limitation
overdue interest and the capitalised element in accordance with
generally accepted accounting principles in Singapore of
outstanding commitments under finance leases);
(iii) "Financial Indebtedness" means indebtedness incurred in respect
of:
(1) money borrowed or raised;
(2) any xxxx, xxxx of exchange, note, loan stock, debenture,
commercial paper or similar security or instrument;
(3) acceptance, documentary credit or guarantee facilities;
(4) deferred payments for assets or services acquired but
excluding trade credit in the ordinary course of business
not exceeding ninety (90) days;
(5) rental payments so far as attributable to payments of
capital under finance leases, whether in respect of land,
building, machinery, equipment or otherwise;
(6) payments under hire purchase contracts;
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(7) factored debts, to the extent that there is recourse;
(8) guarantees, bonds, standby letters of credit or other
instruments issued in connection with the performance of
contracts or obligations;
(9) guarantees, indemnities or other assurances against
financial loss in respect of indebtedness of any person
falling within any of paragraphs (1) to (8) inclusive
above; and
(10) amounts raised or obligations incurred under any other
transaction having the commercial effect of any of the
above.
(v) it shall obtain all necessary licences and comply with all laws and
regulations rules and orders relating to the carrying on of its
business;
(w) it shall, within seven (7) days of the receipt thereof, give to the
Lender full particulars of any notice, order, permission or proposal
given issued or made to the Borrower affecting its properties and
assets by or on behalf of any planning, local government, public
health, sanitary, housing or other authority and which in the
reasonable opinion of the Lender could materially affect its
properties and assets and if so required by the Lender produce such
notice, order, permission or proposal to the Lender together with such
copies thereof as the Lender may reasonably require and also within
the period prescribed by such notice, order, permission or proposal
take all reasonable or necessary steps to comply with the provisions
of such notice, order, permission or proposal and also at the
reasonable request of the Lender and at the costs of the Borrower make
or join with the Lender in making such objection or representation
against or in respect of any such notice, order, permission or
proposal as the Lender shall reasonably deem expedient;
(x) it shall take all necessary steps required by the Lender to preserve
and protect the value of the properties and assets charged herein and
(where applicable) to enforce its title thereto;
(y) it will conduct through the Lender a reasonable amount of banking
transactions and unless otherwise agreed all banking transactions
(including foreign exchange) involving purchase of goods financed out
of the proceeds of the banking facilities.
11. NEGATIVE UNDERTAKINGS
The Borrower undertakes that, so long as any moneys remain to be lent or
remains payable under this Debenture, it shall not, without the Lender's prior
written consent (such consent shall not be unreasonably withheld):-
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(a) effect, carry out, undertake or permit any form of re-construction,
re-organisation, amalgamation, take-over or permit any change of the
shareholdings held by Xxxx Xxxxx-Xxx who must at all times own
beneficially, not less than nine per cent (9%) of the issued and paid-up
share capital of the Borrower or any scheme of arrangement or compromise or
any other scheme affecting its existing constitution or structure of share
holdings except that the foregoing prohibition shall not apply to the
listing of the shares of the Borrower for quotation on the official list of
The Stock Exchange of Singapore Limited;
(b) borrow or in any way obtain loans or advances or raise money or credit from
any other bank;
(c) redeem any of the Borrower's issued shares or reduce the Borrower's
registered and paid up share capital;
(d) enter into any agreement or obligation which could materially and adversely
affect the ability of the Borrower to perform its obligations under this
Debenture;
(e) make any substantial alterations to the nature of the business of the
Borrower from that carried on at the date of this Debenture or amend or
alter any of the provisions in the Borrower's Memorandum and Articles of
Association or any corporate documents relating to the borrowing powers and
principal business activities of the Borrower;
(f) terminate any of its principal businesses as now conducted;
(g) make advances or loans to any person whatsoever or provide guarantees or
indemnities to secure advances or loans to any person whatsoever or be in
any manner directly or indirectly or contingently liable for any
indebtedness or other obligation of any person except to or for the benefit
of the Borrower's employees;
(h) do or suffer to be done or omitted any act matter or thing in or in respect
of its properties and assets or any part thereof which shall contravene the
provisions of any act, ordinance, order, rule or regulation now or
hereafter affecting the same and the Borrower will at all times hereafter
indemnify and keep indemnified the Lender in full against all actions,
proceedings, costs, expenses, claims and demands in respect of any such act
matter or thing done or omitted to be done in contravention of the said
provisions;
(i) dismantle pull down or remove any part of its buildings fixtures plant
machinery and equipment except in cases where such dismantling pulling down
or removal shall in the opinion of the Borrower be rendered necessary by
reason of the same being worn out or damaged, in which case the Borrower
shall give sufficient written notice to the Lender and will replace such
property by property of a similar nature and value after giving intimation
to the Lender;
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(j) lease or licence or agree to let, lease or licence or part with possession
with any of the properties or assets or revenues or any part thereof
comprised in this security, save as previously disclosed in writing to and
agreed by the Lender;
(k) use any building comprised in its properties or suffer the same to be used
for purposes other than those for which the same has or will be built; nor
do or omit to do or permit or suffer to be done or omitted anything by
reason whereof any policy of insurance effected on such properties may be
rendered void or voidable.
12. DEFAULT INTEREST AND DEBIT OF ACCOUNT
(1) In the event of failure by the Borrower to make payment on the due date of
any sum due under the banking facilities or this Debenture (whether by way of a
payment, repayment or a prepayment of any principal, interest, commission,
costs, fees, charges, or otherwise) then subject always to and without prejudice
to the other rights and remedies of the Lender contained in this Debenture, the
Borrower shall (to the fullest extent permitted by applicable law) pay to the
Lender default interest at the rate applicable under the agreements and
arrangements giving rise to the relevant obligations or liabilities and if no
such rate or rates are specified, at such rate or rates which the Lender may at
the time and from time to time stipulate on that overdue sum so long as the same
remains unpaid calculated on a daily basis on a 360 day year (for amounts
denominated in United States Dollars) and a 365 day year (for amounts
denominated in Singapore Dollars) and compounded monthly from and including the
due date thereof to the day of actual payment as well after as before judgment,
if any, is obtained in respect thereof. The Borrower shall pay any interest
accrued on any overdue sum (including sums payable under this sub-clause) on the
last business day of the month in which such interest accrued, failing which
such interest shall be added to the overdue sum and itself bear interest
accordingly.
(2) In addition to and not in derogation of the other provisions of this
Debenture if the Borrower shall fail or refuse to pay any insurance premia legal
fees stamp duty travelling expenses and other commission costs fees charges and
expenses which the Borrower is liable to pay under any provisions of this
Debenture the Lender may at its discretion after giving not less than three (3)
days' notice to the Borrower (such notice will not be required for payment of
insurance, stamp duty, taxes and any governmental authority's costs, charges and
expenses) pay the same (but shall not be under any obligation to do so) and all
such moneys so due and unpaid or paid by the Lender on the Borrower's behalf
together with interest thereon at the rate per annum exceeding by three per cent
(3%) the prevailing prime lending rate of the Lender or at such other rate(s) as
may for be prescribed from time to time by the Lender calculated from the date
of payment thereof up to the date of repayment (as well after as before
judgment) and shall on demand be repaid to the Lender by the Borrower and until
so repaid shall be a charge on the undertaking and property hereby charged in
addition to the principal moneys hereby secured and may be debited to the
account of the Borrower.
(3) Without prejudice to the other provisions of this Debenture, the Lender
shall be entitled at its absolute discretion to debit at any time and from time
to time without prior notice to the Borrower, the current account or any other
account of the Borrower with
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the Lender (whether in Singapore or elsewhere) for all or any moneys whether for
principal, interest, default interest, commission, costs, fees charges or any
other moneys due and payable by the Borrower under the banking facilities or
this Debenture including insurance premia, legal fees, stamp duty, travelling
expenses, governmental or statutory levies and taxes and any other costs charges
and expenses which the Borrower is liable to pay under the banking facilities or
any provisions of this Debenture but the Lender shall promptly on or after such
debiting notify the Borrower of such debiting Provided always that such debiting
shall not constitute nor be deemed to be payment of any moneys to which it
relates (except to the extent of any amount in credit in the said current
account or other account of the Borrower with the Lender) nor shall it be deemed
a waiver of a Potential Event of Default or an Event of Default.
13. SECURITY ENFORCEABLE IN CERTAIN EVENTS
(1) Upon happening of any of the following events:-
(a) if the Borrower does not pay any moneys (whether principal interest or
otherwise) payable by it under the banking facilities or this
Debenture at the place at and in the currency and funds in which it is
expressed to be payable when it is due or otherwise in accordance with
the provisions thereof or hereof provided that such failure shall not
be an Event of Default if (i) it occurs by reason only of technical
difficulties affecting the transfer of funds from the Borrower and
(ii) the Lender receives such sum within three (3) days after it is
due or payable otherwise in accordance with the provisions thereof or
hereof; or
(b) if any representation or warranty made by the Borrower or any
guarantor in or in connection with any of the banking facilities or
this Debenture or any of the documents called for under this Debenture
or any certificate or statement delivered or made under any of the
banking facilities or this Debenture is incorrect or untrue in any
material respect at the time it was made or reported or deemed to have
been made or reported or ceases to be true and correct in any material
respect; or
(c) if the Borrower and/or any guarantor commits or threatens to commit a
breach of any of the covenants, undertakings, stipulations, terms and
conditions or provisions contained in this Debenture and/or in any
guarantee or in any agreement made between the Borrower and the Lender
relating to any of the banking facilities and on the Borrower's and/or
any guarantor's part to be observed and performed and in respect only
of a breach which in the reasonable opinion of the Lender is capable
of remedy such breach is not rectified within fourteen (14) days after
notice of such breach has been given by the Lender to the Borrower
and/or that guarantor; or
(d) if the accounts of the Borrower delivered to the Lender under
Clause 10(f) are qualified in a manner or to an extent unacceptable to
the Lender; or
(e) if any other indebtedness of the Borrower for borrowed moneys shall
not be paid at its stated maturity or by reason of its default shall
become due
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or be declared due prior to its stated maturity or any creditor of the
Borrower or any guarantor for the banking facilities becomes entitled
to declare any indebtedness of the Borrower or that guarantor for
borrowed moneys due and payable before its stated maturity; or
(f) if the Borrower or any guarantor becomes insolvent, is unable to pay
its debts as they fall due, stops or suspends payment of all or a
material part of its debts, begins negotiations or takes any
proceedings or other step with a view to readjustment, rescheduling or
deferral of all its indebtedness (or of a material part of its
indebtedness which it will or might otherwise be unable to pay when
due) or proposes or makes a general assignment or an arrangement or
composition with or for the benefit of its creditors or a moratorium
is agreed or declared in respect of or affecting all or a material
part of any indebtedness on the part of the Borrower or that guarantor
for any moneys whatsoever; or
(g) if any competent order is made or step or petition is taken by any
person for the dissolution, reorganisation, reconstruction,
insolvency, bankruptcy or winding-up of the Borrower or any guarantor
or for the appointment of a liquidator, receiver, administrator,
trustee, judicial manager or other similar officer of the Borrower or
that guarantor over its property, assets and undertakings or part
thereof except that it shall not be an Event of Default in the case of
a reorganisation or reconstruction permitted under Clause 11(a); or
(h) if the Borrower or any guarantor shall cease or threaten to cease to
carry on any of its principal businesses as now conducted or changes
or threatens to change the nature or scope of any of its principal
businesses, whether voluntarily or involuntarily; or
(i) if a distress or execution or other similar or analogous proceeding is
levied or enforced upon or issued against any part of the properties
or assets of the Borrower and/or any guarantor; or
(j) if any legal, administrative or arbitration proceedings, suits or
action of any kind whatsoever (whether criminal or civil) is
instituted against the Borrower or any guarantor which in the
reasonable opinion of the Lender will materially and adversely affect
the ability of the Borrower or that guarantor to repay the amounts
payable to the Lender under this Debenture or that guarantee or any
agreement relating to any of the banking facilities or the ability of
the Borrower or that guarantor to perform its obligations under this
Debenture or that guarantee; or
(k) if any present or future security on or over all or a material part of
the assets of the Borrower or any guarantor becomes enforceable; or
(l) if the Borrower or any guarantor shall transfer or otherwise dispose
of all or any substantial part of its business or assets except in
accordance with Clause 7(3); or
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(m) if any agency of any state threatens to or seizes, compulsorily
acquires, expropriates or nationalises all or any material part of the
assets or properties of the Borrower or any guarantor (as the case may
be); or
(n) if at any time, any act condition or thing required to be done,
fulfilled or performed by the Borrower or any guarantor in order:-
(i) to enable the Borrower or such guarantor to execute and enter
into this Debenture or any security or guarantee and perform
and fulfil its obligations and liabilities in terms hereof or
thereof;
(ii) to ensure that this Debenture and any security or guarantee
given by such guarantor constitute legal valid and binding
obligations on the Borrower or such guarantor enforceable
against the Borrower or such guarantor in accordance with its
terms;
(iii) to ensure that this Debenture and any security or guarantee
given by such guarantor are admissible in evidence in Singapore
and such other states and countries that the Lender may
require,
is not done, fulfilled or performed; or
(o) if there shall occur a material adverse change in the business, assets
or financial position of the Borrower or any guarantor or if in the
reasonable opinion of the Lender the Borrower or any guarantor may be
unable to perform its obligations under this Debenture or that
guarantee or any agreement in relation to any of the banking
facilities and notice thereof has been given to the Borrower; or
(p) if the security under any security given by the Borrower to the Lender
or the business of the Borrower or any guarantor is in jeopardy and
notice thereof has been given to the Borrower or such guarantor; or
(q) if the management of the Borrower as at the date of this Debenture is
wholly or substantially displaced or has its authority curtailed; or
(r) if the Borrower or any guarantor is declared by the Minister to be
declared company under the provisions of Part IX of the Companies Act
(Chapter 50, Singapore Statutes); or
(s) if (in the case of an individual) any guarantor dies or becomes
insane; or
(t) if it is or will become unlawful for the Borrower or any guarantor to
perform or comply with any one or more of its material obligations
under any agreement or arrangement relating to any of the banking
facilities, this Debenture or any security or guarantee; or
(u) if any of the authorizations referred to in this Debenture or any of
the banking facilities is not obtained or granted or ceases to be in
full force and effect or is modified unless such authorization is no
longer required or applicable; or
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(v) if it becomes impossible for the Borrower or any guarantor to perform
any of its obligations under this Debenture, any agreement or
arrangement relating to any of the banking facilities or any guarantee
or for the Lender to exercise all or any of its rights, powers and
remedies hereunder or under any agreement or arrangement relating to
any of the banking facilities or any guarantee; or
(w) if this Debenture or a guarantee is terminated or extinguished or
otherwise ceases to remain in full force and effect or if there shall
be any change in any applicable law, regulations, treaty, directive or
requirement which makes it impossible or unlawful for the Lender to
make or continue making available the banking facilities or any part
thereof to the Borrower; or
(x) if a substantial part of any property or assets (whether or not
belonging to the Borrower) mortgaged or charged or pledged to or in
any way held by the Lender as security for any indebtedness to the
Lender (or any moneys secured or intended to be secured by this
Debenture) is seized or expropriated or is subject to compulsory
purchase or acquisition (whether subject to compensation or not) or is
wholly or substantially destroyed,
the Lender may at any time thereafter by notice in writing to the Borrower
declare that the whole of the principal moneys lent or advanced by the Lender
(including contingent liabilities) or the balance thereof for the time being
outstanding and unpaid together with interest and all other moneys hereby
secured to be immediately due and payable whereupon they shall become so due and
payable without further demand, notice or legal formality of any kind and the
security hereby created shall become enforceable.
(2) The Borrower undertakes to immediately notify the Lender in writing after
it has notice of the occurrence of any of the Events of Default, such
notification to set out the details of the Event of Default concerned.
14. POWERS OF THE LENDER ON EVENTS OF DEFAULT
(1) At any time after the principal sum interest and all other moneys as
mentioned in Clause 13 hereof shall have become payable under the said Clause 13
the Lender shall be entitled to exercise all or any of the following rights or
powers, that is to say:-
(a) the Lender or any person authorised by the Lender may enter into the
land and premises belonging to and/or occupied by the Borrower
anywhere without notice and may take possession and control of all or
any of the property and assets hereby charged without being liable as
a mortgagee in possession; and
(b) the Lender may immediately exercise all the statutory powers of a
mortgagee in respect of all or any of the property and assets hereby
charged (including but not limited to the power of sale).
(2) The provisions of Section 25 of the Conveyancing and Law of Property Act
(Chapter 61, Singapore Statutes), as amended or re-enacted from time to time,
(hereinafter called "the said Act") shall be so varied or extended in the
application to this Debenture that the
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power of sale may be exercised at any time in accordance with the foregoing
provisions and in exercising the power of sale the Lender may sell all or any of
the property and assets hereby charged without any of the restrictions imposed
by the said Section 25 and at such prices and in such manner and subject to such
terms and conditions as the Lender shall reasonably think fit.
15. APPOINTMENT OF RECEIVER
At any time after the principal moneys interests and other moneys hereby
secured shall have become payable under Clause 13 hereof the Lender may appoint
by writing under the hand of the President, Deputy President, Executive
Vice-President, Senior Vice-President, Vice-President, Assistant Vice-President,
Treasurer, Legal Officer or other authorised officer for the time being of the
Lender any person to be a Receiver of the undertaking property and assets
comprised in this security and may in like manner from time to time remove any
such Receiver so appointed and appoint another in his stead.
16. POWERS OF RECEIVER
A Receiver so appointed shall be the agent of the Borrower and the Borrower
shall be solely responsible for his acts and defaults and remuneration. Such
Receiver shall have power:-
(a) To enter into and take possession or control of any land or premises
of the Borrower or any part thereof or collect and get in any property
and assets comprised in this security and for that purpose to take any
proceedings in the name of the Borrower or otherwise as may be deemed
expedient.
(b) To carry on manage or concur in carrying on and managing the business
of the Borrower or any part thereof and for any of those purposes to
raise or borrow any moneys that may be required upon the security of
the whole or any part of the Borrower's property.
(c) Where any capital in respect of any shares of the Borrower is
outstanding and uncalled to require the Borrower forthwith to call up
all or so much of such uncalled capital of the Borrower as may be
sufficient to pay to the Lender all moneys then due and owing
hereunder.
(d) Forthwith and without restriction to sell or agree in selling
(obtaining only when and where necessary the leave of the Court) any
of the Borrower's property and assets comprised in this security or
any part thereof by public auction or by private contract subject to
such conditions respecting title or evidence of title or other matter
as the Receiver may deem fit with power to vary any contract for sale
and to resell without being answerable for any loss occasioned
thereby. Any such sale may be for cash shares stocks debentures
debenture stock or other obligations or valuable consideration and may
be payable in a lump sum or by installments as the Lender shall think
fit. Plant machinery and other fixtures may be severed and/or detached
and sold separately from the premises containing them without the
consent of the Borrower.
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(e) To lease let hire and licence or agree in leasing letting hiring and
licensing or accept surrenders of leases tenancies or licences of all
or any part of the land and premises or the Borrower's property and
assets on such terms and for such consideration as the Receiver may
deem fit.
(f) To make any arrangements or enter into any compromise which he shall
think expedient.
(g) To repair and keep in repair and make or effect all or any
improvements of the Borrower's property and assets and for this
purpose to apply in the name of the Borrower for any licences
permissions or consent required under any Act Ordinance order rule
regulations or by-laws and to take out maintain and renew all
insurances in respect of the Borrower's property and assets against
loss or damage by fire or any other risk and for such sums as he shall
think fit.
(h) To employ and dismiss managers agents officers servants clerks
accountants and workmen and others in respect of the Borrower's
property and assets charged hereunder and upon such terms and with
such salaries wages or remuneration for such purposes as he shall
think proper.
(i) To execute and do all such acts deeds and things as to him or the
Lender may appear necessary or proper for or in relation to any of the
purposes aforesaid and which he lawfully may or can do as agent for
the Borrower.
(j) To appoint and remove at pleasure any substitute for or agent under
the Receiver in respect of all or any of the matters aforesaid upon
such terms as the Receiver shall reasonably think fit.
(k) Generally to do or cause to be done such acts or things which the
Borrower may have done in the ordinary conduct of its business as well
for the protection as for the improvement of the property and assets
comprised in this security.
17. APPOINTMENT OF RECEIVER AS ATTORNEY
The Borrower hereby irrevocably appoints any and every Receiver appointed
as aforesaid and his substitute or substitutes to be the attorney or attorneys
of the Borrower, where more than one jointly and severalty and on its behalf and
as its acts and deeds to execute sign seal and deliver and otherwise perfect any
deed assurance agreement instrument or act which may be required or may be
deemed proper for any of the purposes set out in the preceding clause hereof and
with power for such attorney or attorneys to appoint or remove any substitute or
substitutes.
18. APPLICATION OF MONEYS BY RECEIVER
The net profits of carrying on the said business and the net proceeds of
any sale shall be applied by the Receiver subject to the claims of all secured
and unsecured creditors (if any) ranking in priority to this Debenture:-
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Firstly, in or towards payment of all costs charges and expenses of and
incidental to the appointment of the Receiver and the exercise by him of all or
any of the powers aforesaid including the reasonable remuneration of the
Receiver.
Secondly, in or towards payment of all costs, fees, charges and expenses
whatsoever incurred or paid by the Lender under or in connection with the
Debenture.
Thirdly, in or towards payment to the Lender of all interest for the time
being owing to the Lender.
Fourthly, in or towards payment of all principal moneys and other sums due
to the Lender and hereby secured.
Fifthly, any surplus shall be paid to the Borrower.
Save as aforesaid the Lender shall be under no liability whatsoever to the
Receiver for his remuneration costs charges expenses or otherwise.
19. APPOINTMENT OF RECEIVER NOT AFFECTING OTHER POWERS
The powers of appointment of a Receiver hereunder shall be in addition to
and not to the prejudice of any statutory and other powers (whether of sale,
receiving rents, distraining for rents or otherwise) of the Lender or otherwise
and so that such powers shall be and remain exercisable by the Lender in respect
of any of the property or assets comprised in this security and of which no
appointment of a Receiver by the Lender shall from time to time be subsisting
notwithstanding that an appointment under the provisions i hereof shall have
subsisted and been withdrawn in respect of that property or asset or shall be
subsisting in respect of any other property or assets hereby charged.
20. APPOINTMENT OF LENDER AS ATTORNEY
(1) The Borrower hereby irrevocably appoints the Lender and any attorney for
the time being of the Lender and either of them to be its attorney or attorneys
and in its name and on its behalf and as its acts and deeds to execute sign seal
deliver and otherwise perfect any such legal or other mortgages charges
assignments transfers or agreements as aforesaid or (without executing any such
mortgage) any deed assurance instrument or act which may be required or may be
deemed proper or expedient for the full exercise of all or any of the powers
hereby conferred on the Lender or the Receiver and also for the purpose of
enforcement or realisation of the security created herein Provided That the
Lender shall not exercise any of the powers conferred under this Clause 20(1)
unless and until the Borrower fails to perform, observe or comply with any of
the provisions herein.
(2) The Borrower hereby declares that any and all such deeds instruments and
documents executed on behalf of the Borrower by the Lender as aforesaid by
virtue of the provisions hereof shall be as good valid and effectual to all
intents and purposes whatsoever as if the same has been duly and properly
executed by the Borrower itself and the Borrower hereby undertakes that, when
required by the Lender so to do, the Borrower shall ratify and confirm all such
deeds instruments and documents executed by virtue of the authority and the
powers hereby conferred.
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21. SPECIAL CONSULTANT
(1) If there shall have arisen circumstances which lead the Lender to
reasonably determine that the Borrower is or will be unable to perform any of
its material obligations under this Debenture or any other agreement made
between the Borrower and the Lender relating to the banking facilities the
Borrower will, notwithstanding that none of the events mentioned in Clause 13(1)
has occurred, forthwith upon the Lender's request appoint a Special Consultant
nominated by the Lender. In the event of the Borrower failing to make the
appointment, the Lender shall be entitled at its discretion at any time
thereafter to appoint the Special Consultant on the Borrower's behalf.
(2) The Lender shall have the full discretion to nominate any person suitably
qualified to be a Special Consultant and, without limiting the generality of the
foregoing, the Lender may for the purpose nominate an accountant, lawyer, banker
or engineer.
(3) The Special Consultant so appointed (whether by the Borrower or by the
Lender on the Borrower's behalf) shall be the agent of the Borrower and the
Borrower shall be solely responsible for his acts, defaults and remuneration.
The Special Consultant shall perform and carry out all such duties and functions
as the Lender may specify which may, without limitation, include the following:-
(a) to carry out an audit for the accounts of the Borrower and report the
outcome of such audit to the Lender;
(b) to verify and submit to the Lender a list of the Borrower's account
receivables; and
(c) to verify and submit to the Lender a list of the Borrower's creditors.
22. SET-OFF
In addition to any banker's lien, right of set-off or other right which the
Lender may have, the Lender shall be entitled at any time at its absolute
discretion and without prior notice to the Borrower to combine or consolidate
all or any of the accounts of the Borrower with the Lender including accounts of
the Borrower either alone or jointly with others (whether current, deposit,
savings or of any other nature whatsoever, and whether in Singapore Dollars or
other currency) wheresoever situate (in Singapore or elsewhere) and set-off or
transfer any sum standing to the credit of any one or more such accounts in or
towards satisfaction of any moneys owing by and any obligations and liabilities
of the Borrower to the Lender on any other account (whether in Singapore or
elsewhere) and whether such liabilities be actual, contingent, liquidated,
unliquidated, primary, collateral, several or joint and where the Borrower's
liabilities are contingent, the Lender shall be entitled to set aside such
amounts to keep the Lender in funds for fully meeting and discharging its
liabilities. Where such combination, set-off or transfer requires the conversion
of one currency into another, the Lender is hereby authorised to effect such
conversion at the Lender's own rate of exchange then prevailing and in
accordance with its normal practice. The Lender shall notify the Borrower in
writing as soon as practicable after any combination set-off or transfer is
effected.
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23. RIGHT OF REVIEW
(1) Unless expressly provided otherwise in an agreement or arrangement relating
to a banking facility granted by the Lender to the Borrower:-
(a) The banking facilities granted or to be granted shall be reviewed from
time to time and at any time by the Lender; and
(b) The Lender shall at any time and from time to time be entitled to
terminate cancel or withdraw the banking facilities or part thereof
and nothing in these presents contained shall be deemed to impose on
the Lender any obligation either at law or in equity to make or
continue to make any advances to the Borrower.
(2) Without prejudice to the generality of Clause 23(1), the Lender may from
time and at any time by notice to the Borrower require additional or further
security or securities for the banking facilities unless expressly provided
otherwise in an agreement or arrangement relating to a banking facility granted
by the Lender to the Borrower.
(3) Unless expressly provided otherwise in an agreement or arrangement relating
to a banking facility granted by the Lender to the Borrower, the banking
facilities granted or to be granted to the Borrower shall be repayable to the
Lender on demand.
(4) In the event the Lender demands repayment of the banking facilities or any
part thereof the Borrower shall repay to the Lender all principal money owing to
it under such banking facilities together with accrued interest thereon and any
other sum then due to the Lender under such banking facilities and shall pay the
Lender such amount necessary for meeting and discharging all its liabilities
(whether actual or contingent) under all banker's guarantees and letters of
credit and all other contingent liabilities (and irrespective of whether or not
any beneficiary under guarantee or letter of credit has made any claim thereon).
24. NO ENQUIRY BY THIRD PARTY
Any person dealing with the Lender or the Receiver shall not be concerned
to enquire whether any event has happened upon which any of the powers contained
in these presents are or may be exercisable by the Lender or the Receiver or
otherwise as to the propriety or regularity of any exercise thereof or of any
act purporting or intended to be an exercise thereof or whether any moneys
remains owing upon this security.
25. THE LENDER NOT ANSWERABLE FOR LOSS
The Lender shall not be answerable for any involuntary loss happening in or
about the exercise or execution of the powers or trusts which may be vested in
the Lender by virtue of this Debenture or by law for the time being in force
except for any loss resulting from any gross negligence of the Lender and/or its
agents or employees.
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26. INDEMNITY
(1) Without prejudice to the foregoing terms and provisions, the Borrower shall
on demand indemnify the Lender and hold the Lender harmless from and against all
losses, expenses, costs or liabilities whatsoever, legal or otherwise, which the
Lender may reasonably sustain, suffer or incur as a consequence of any
enforcement of the payment of any principal moneys when due or any interest
accrued thereon or any other amounts payable hereunder and any prepayment of a
banking facility otherwise than or any failure to borrow or to proceed with a
banking facility in accordance with the agreements or arrangements applicable to
such banking facility and the occurrence of any Event of Default.
(2) Such losses, expenses, costs or liabilities shall include but not be
limited to such amount as the Lender shall certify (such certification being
conclusive and binding upon the Borrower save for any manifest error) as being
necessary to compensate the Lender for (a) any loss of interest or commission
incurred on account of such default, and (b) any costs, interest, commission or
fees paid or payable on account of any funds borrowed in order to carry or
maintain any unpaid amount including without limitation any loss which the
Lender shall certify as sustained or incurred by it in maintaining or funding
the banking facilities or any part thereof or in liquidating or in re-employing
deposits from third parties acquired to effect or maintain the banking
facilities or any part thereof as a consequence of any prepayment of the banking
facilities or part thereof being made (for any reason whatsoever) except to the
extent that such interest, commission or fees are recovered under the provisions
of this Debenture.
27. DISCLOSURE
Without prejudice to all rights of the Lender to disclose information
relating to the accounts of the Borrower, and for all purposes whether under
common law or Section 47(4)(a) of the Banking Act, (Chapter 19, Singapore
Statutes) or otherwise, the Borrower hereby irrevocably (so long as any moneys
or liabilities shall remain owing or unpaid to the Lender hereunder or any
banking facility or service is extended by the Lender to the Borrower) permits
the, Lender and all persons to whom Section 47(3) of that Act applies, to
disclose (whether with or without notice to the Borrower and whether orally or
in writing) any information whatsoever concerning any matters or transactions in
relation to the banking facilities and the account(s) (including any information
whatsoever regarding the money or other relevant particulars of any account)
which the Borrower now has or may hereafter have with the Lender:-
(a) to any chargee or mortgagee or proposed or purported chargee or
mortgagee of or any other person having or claiming any interest in
the property and assets hereby charged or any person in favour of whom
the Borrower is proposing to create or grant an interest in the
property and assets hereby charged for the purpose of seeking any
consent for the creation or variation of any interest in or increasing
the amount of moneys and liabilities secured or to be secured by any
encumbrance over the property and assets hereby charged or in
connection with any security sharing arrangements relating to the
property and assets hereby charged or any enforcement of any security
or any sale transfer disposition or any
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other dealing by any person whatsoever over or of or with the property
and assets hereby charged;
(b) to the Commissioner of Stamp Duties, the Registrar of Companies,
Registrar of Businesses, Registrar of Titles, Registrar of Deeds
and/or any other government officials or departments or relevant
bodies for purposes in connection with stamping (or assessment of
stamp duties on), registering, lodging or filing any or all documents
or conducting of searches in connection with the banking facilities;
(c) to CTB, the Monetary Authority of Singapore and any other governmental
authority; and
(d) to any solicitor acting for the Lender, the Borrower, any guarantor or
any other party involved with the banking facilities or any security
therefor, in relation to the accounts of the Borrower, the banking
facilities and any security given in connection therewith or any other
party mentioned in the foregoing provisions of this Clause,
and save aforesaid the Lender shall obtain the Borrower's prior written consent
(such consent not to be unreasonably withheld) prior to the disclosure of any
matter set out above.
28. CALCULATIONS AND EVIDENCE
The entries made in the accounts maintained by the Lender in accordance
with its usual practice and a statement or certificate in writing signed by the
Lender or its servant or any person nominated by the Lender under the hand of
any authorised officer of the Lender certifying (i) the amount due at any time
in respect of any moneys owing or payable by the Borrower to the Lender and/or
any liabilities incurred by the Lender and payable by the Borrower to the Lender
under or by virtue of any terms, conditions or stipulations of this Debenture
and/or any banking facilities, or (ii) any interest rate applicable to it, or
(iii) its costs of funds, or (iv) any other matter provided in this Debenture,
shall (in the absence of any manifest error) be prima facie evidence of the
amounts of the obligations of the Borrower and of the matters so certified.
29. WAIVER NOT TO PREJUDICE RIGHT OF LENDER
(1) The Lender may from time to time waive either unconditionally or on such
terms and conditions as it may reasonably deem fit any breach by the Borrower of
any of the covenants undertakings stipulations terms and conditions herein
contained and any modification thereof but without prejudice to its powers
rights and remedies for enforcement thereof, Provided Always that:-
(a) neither any neglect nor forbearance of the Lender to require and
enforce payment of any moneys hereunder or the performance and
observance of any covenants undertakings stipulations terms and
conditions herein maintained, nor any time which may be given to the
Borrower shall in any way prejudice or affect any of the rights powers
or remedies of the Lender
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at any time afterwards to act strictly in accordance with the
provisions hereof;
(b) no such waiver of any such breach as aforesaid shall prejudice the
rights of the Lender in respect of any other or subsequent breach of
any of the covenants undertakings stipulations terms or conditions
aforesaid.
(2) Any such waiver and any consent by the Lender under any provision of
this Debenture must be in writing and may be given subject to any reasonable
conditions deemed fit by the Lender. Any waiver or consent shall be effective
only in the instance and for the purpose for which it is given.
(3) The powers which this Debenture confers on the Lender hereunder are
cumulative and are not exclusive of any other rights, powers, privileges or
remedies provided by law and may be exercised as often as the Lender thinks
appropriate in accordance with this Debenture.
30. INDULGENCE OF THE LENDER NOT TO DISCHARGE THE BORROWER
The liability of the Borrower hereunder shall not be impaired or discharged
by reason of the fact that any person is or has become in any way, whether with
or without the acceptance of the Lender, liable to pay any of the moneys owing
by the Borrower hereunder or by reason of any time or other indulgence being
granted by or with the consent of the Lender to any such person who or which may
be in any way liable to pay any of the moneys secured hereby or by any other
security in favour of the Lender or by reason of any arrangement being entered
into or composition accepted by the Lender modifying the operation of law or
otherwise its rights and remedies under the provisions of this Debenture.
31. RIGHT OF CONSOLIDATION
Section 21(1) of the said Act (restricting the right of consolidation)
shall not apply to this security, and in addition and without prejudice to any
right of consolidation none of the property of the Borrower which at the date
hereof is or which at any time hereafter shall become subject to a mortgage or a
charge in favour of or vested in the Lender shall be redeemed except in payment
of not only all moneys thereby secured but also all moneys secured by this
Debenture.
32. CURRENCY INDEMNITY
(1) The obligation of the Borrower shall be to pay the obligations or
liabilities in the same currency in which the said obligations or liabilities
are incurred ("relevant currency"). Any amount received or recovered in a
currency other than the relevant currency (whether as a result of, or arising
from the enforcement of, a judgment or order of a court of any jurisdiction in
the dissolution of the Borrower or otherwise) in respect of any sum expressed to
be due to the Lender from the Borrower under the agreements or arrangements
applicable to the relevant banking facilities shall only constitute a discharge
to the Borrower to the extent of the relevant currency amount which the Lender
is able,
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in accordance with its usual practice, to purchase with the amount so
received or recovered in that other currency on the date of that receipt or
recovery (or, if it is not practicable to make that purchase on that date, on
the first date on which it is practicable to do so).
(2) If that amount in the relevant currency is less than the relevant currency
amount expressed to be due to the Lender under this Debenture, the Borrower
shall indemnify the Lender against any loss sustained by it as a result thereof.
In any event, the Borrower shall indemnify the Lender against the cost of making
any such purchase. For the purpose of this Clause, it shall be sufficient for
the Lender to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
(3) These indemnities constitute a separate and independent obligation from the
other obligations in this Debenture, shall give rise to a separate and
independent cause of action, shall apply irrespective of any indulgence granted
by the Lender and shall continue in full force and effect despite any judgment,
order, claim or proof for a liquidated amount in respect of any sum due under
this Debenture or any judgment or order. No proof or evidence of any actual loss
may is required.
33. TAXES
(1) All sums payable by the Borrower under this Debenture shall be paid
(i) free of any restriction or condition, (ii) free and clear of and without any
deduction or withholding (except to the extent required by Singapore law) on
account of any taxes, levies or any other charges whatsoever imposed by
Singapore law (including but not limited to any goods and services tax) present
or future and (iii) without deduction or withholding (except to the extent
required by Singapore law) on account of any other amount, whether by way of
set-off counterclaim or otherwise.
(2) If (i) the Borrower or any other person on behalf of the Borrower is
required by Singapore law to make any payment deduction or withholding on
account of any such taxes levies charges or other amount from any sum paid or
payable by the Borrower to the Lender or any sum received or receivable by the
Lender under this Debenture or (ii) the Lender (or any person on its behalf) is
required by Singapore law to make any deduction or withholding from, or (except
on account of tax on the overall net income of the Lender) any payment on or
calculated by reference to the amount of, any sum received or receivable by the
Lender under this Debenture:-
(a) the Borrower shall notify the Lender of any such requirement or any
change in any such requirement as soon as practicable after the
Borrower becomes aware of it;
(b) the Borrower shall pay any such taxes, levies, charges or other amount
before the date on which the penalties attach thereto, such payment to
be made, if the liability to pay Is Imposed on the Borrower, for the
Borrower's account, or otherwise on behalf of and in the name of the
Lender (if the liability to pay is imposed on the Lender);
(c) the sums payable by the Borrower shall (except, in the case of any
such payment, to the extent that its amount is not ascertainable when
that sum
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is paid) be increased to the extent necessary to ensure that,
after the making of that deduction, withholding or payment, the Lender
receives on the due date and retains (free from the liability in
respect of any such deduction, withholding or payment) a net sum equal
to what it would have received and so retained had no such deduction,
withholding or payment been required or made; and
(d) within fourteen (14) days after paying any sum from which the Borrower
is required by law to make any deduction or withholding, and within
fourteen (14) days after the due date of payment of any taxes, levies,
charges or the amount which the Borrower is required by paragraph (b)
above to pay, the Borrower shall deliver to the Lender evidence of
such deduction, withholding or payment and of the remittance thereof
to the relevant taxing or other authority.
(3) Without prejudice to the generality of the foregoing, in the event that any
goods and services tax or value added tax or any other taxes levies or charges
whatsoever now or hereafter required by law to be paid on or in respect of any
sums payable to the Lender under or relating to this Debenture or the banking
facilities granted to the Borrower, the same shall (except to the extent
prohibited by law) be borne by the Borrower and the Borrower shall pay to the
Lender on demand a sum equivalent to the amount of such goods and services tax
or value added tax or other taxes, levies or charges (or such part thereof which
the law does not prohibit the Lender from collecting from the Borrower) less any
such part thereof as has been paid by the Borrower under the preceding
subclauses, in addition to all other sums payable to the Lender under this
Debenture and the Borrower shall Indemnify the Lender against all payments of
such amounts.
(4) The obligations of the Borrower under this Clause 33 shall survive the
repayment of the banking facilities and termination of this Debenture.
34. CHANGE IN CIRCUMSTANCES
(1) If at any time the Lender determines that it is or will become unlawful or
contrary to any directive of any agency of Singapore for it to allow all or part
of the banking facilities or any other moneys to remain outstanding, to make,
fund or allow to remain outstanding all or part of the banking facilities and/or
to carry out all or any of its other, obligations under this Debenture and/or to
charge or receive interest, fees or commission at the rate or rates applicable,
the Lender shall promptly notify the Borrower to that effect and upon such
notification to the Borrower the obligation of the Lender to make available the
banking facilities shall cease to the extent necessary to comply with the
relevant law or directive, and the Borrower shall procure the release of all the
banker's guarantees and letters of credit issued pursuant to the banking
facilities granted by the Lender which are then still in force or pay the Lender
such sums as are required to enable the Lender to procure such release and
prepay without premium or penalty ail moneys owing to the Lender under this
Debenture or the banking facilities on the date necessary to comply with the
relevant law or directive (but without prejudice to Clause 26 which shall
nevertheless apply.)
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(2) If the Lender determines that, as a result of (a) the introduction of or
any change in, or in the interpretation or application of any law, regulation or
treaty of Singapore, or (b) compliance by it with any directive of any agency of
Singapore:-
(a) the cost to the Lender of making available all or any part of the
banking facilities or of making, maintaining or funding all or any
part of the banking facilities is increased; and/or
(b) any sum received or receivable by the Lender under this Debenture or
any agreement or arrangement relating to any of the banking facilities
or the effective return to it under this Debenture or any agreement or
arrangement relating to any of the banking facilities is reduced
(except on account of tax on its overall net income); and/or
(c) the Lender makes any payment (except on account of tax on its overall
net income) or foregoes any part of any interest fee or other return
on or calculated by reference to the amount of any sum received or
receivable by it under or any other matter relating to this Debenture
or any agreement or arrangement relating to any of the banking
facilities,
the Borrower shall indemnify the Lender against that increased cost, reduction,
payment or foregone interest or other return (except to the extent that the
Lender has already been compensated therefor by an increase in the relevant
interest rate) and, accordingly, shall from time to time on demand (whenever
made) pay to the Lender for its own account the amount certified by it to be
necessary so to indemnify it and any such certificate shall contain in
reasonable detail the basis and calculation of the amount the Borrower is liable
to indemnify the Lender under this Clause 34(2).
35. PAYMENT OF COSTS
The Borrower shall indemnify the Lender for and shall pay forthwith to the
Lender on demand:-
(a) all reasonable expenses including stamp documentary and other duties
(whether as a penalty or otherwise) legal fees goods and services tax
administrative registration and execution fees out-of-pocket expenses
and any other reasonable costs or charges incurred or expended by the
Lender In connection with the negotiation preparation and/or
completion of this Debenture or any charges mortgages pledges
guarantees or other documents required by the Lender under the
provisions of this Debenture; and
(b) all expenses including all legal fees as between solicitors and
clients (on a full indemnity basis) and other expenses costs and
disbursements whatsoever including but not limited to stamp or other
duties incurred by the Lender in connection with any variation consent
or approval relating to the Debenture or in connection with demanding
and enforcing payments of moneys due hereunder or otherwise howsoever
in the enforcement or attempted enforcement of any of its rights under
this Debenture or incurred in connection with any delay or omission on
the part of the Borrower to pay
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stamp or other duties in connection with this Debenture or any other
documents called for by this Debenture.
36. SERVICE OF DEMAND OR NOTICE
(1) Except as otherwise expressly provided herein, any notice, request, demand
or other communication to be given or served under this Debenture to or on
any party under this Debenture may be delivered at or sent by prepaid
registered post or by telex or facsimile transmission to the address, telex
number or facsimile number and marked for the attention of the person or
department (if any) from time to time designated by that party for the
purpose of this Debenture and shall be deemed to be duly served:-
(a) if it is delivered, at the time of delivery;
(b) if it is sent by prepaid registered post, forty-eight (48) hours after
posting thereof; or
(c) if it is sent by telex or facsimile transmission, immediately after
transmission thereof if the date of transmission is a business day,
and if the date of transmission is not a business day, then the notice
by telex or facsimile transmission shall be deemed to be served on the
next business day.
(2) Any communication from the Borrower shall be irrevocable, and shall not be
effective until actually received by the addressee. Except as otherwise
expressly provided herein, all notices, requests, demands or other
communications which are required by this Debenture to be in writing may be
made by telex or facsimile transmission.
(3) Each notice, request demand or other communication in connection herewith
may be given to or served on the relevant party at its address, telex
number or facsimile number set out below or as such party hereto shall from
time to time notify the other parties.
The Borrower
UNITED TEST AND ASSEMBLY CENTER (S) PTE LTD
00 Xxxxxx Xxxx #00-00/00
Xxxxxxxxx X Xxxxx
Xxxxxxxxx 000000
Attention: Xxxxxxx Xxx
Facsimile: 5511155
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The Lender
THE DEVELOPMENT BANK OF SINGAPORE LIMITED
Institutional Banking, Singapore Corporate 1
0 Xxxxxxx Xxx
XXX Xxxxxxxx Xxxxx Xxx
Xxxxxxxxx 000000
Attention: Managing Director, Institutional Banking
Singapore Corporate 1
Facsimile: 00-0000000
(4) For the purposes of this Clause 36, each of the parties hereto shall from
time to time notify the other parties in writing of an address in Singapore
where such notice, request or demand or other communication as aforesaid
can be given or served.
37. RIGHT OF ASSIGNMENT
(1) This Debenture shall be binding upon and inure to the benefit of the
Borrower and the Lender and the successors in title and assigns of the Lender
and any reference in this Debenture to any party shall be construed accordingly.
All undertakings, agreements, representations and warranties given, made or
entered into by the Borrower under this Debenture shall survive the making of
any assignments hereunder.
(2) The Borrower shall have no right to assign or transfer any of its rights or
obligations hereunder and it shall remain fully liable for all of its
undertakings, agreements, duties, liabilities and obligations hereunder, and for
the due and punctual observance and performance thereof.
(3) (a) The Lender may at any time, after giving to the Borrower prior notice
in writing of its intention to do so, assign all or part of its rights
or transfer all or part of its obligations under this Debenture to any
one or more banks or other lending institutions (each of which is in
this Clause 37(3) called an "Assignee Lender") Provided that within
fourteen (14) days of the Borrower's receipt of such notification, the
Borrower may by giving not more than fifteen (15) days' prior notice
in writing to the Lender, prepay, without prepayment fee or premium
(but without prejudice to Clause 26 which shall nevertheless apply),
to the Lender all principal moneys, accrued interest and all other
sums hereby secured and procure the immediate discharge and
cancellation of all banker's guarantees and letters of credit issued
pursuant to the banking facilities granted by the Lender which are
then still in force or pay to the Lender an amount sufficient for the
Lender to obtain such discharge and cancellation.
(b) Any such Assignee Lender shall be treated as a party to this Debenture
for all purposes of this Debenture and shall be entitled to the full
benefit of this Debenture to the same extent as if it were an original
party in respect of the rights or obligations assigned or transferred
to it and all references in
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this Debenture to the Lender (hereinafter called the "Assignor
Lender") shall subsequently be construed as references to the Assignor
Lender and its Assignee Lender or Assignee Lenders to the extent of
their respective rights or obligations assigned or transferred to it
or them.
(c) In the event the Lender does not receive a notice from the Borrower
pursuant to the provisions of the proviso to Clause 37(3)(a) within
fourteen (14) days of the Borrower's receipt of its notification to
the Borrower of its intention to assign, then, the Lender may proceed
to assign all or part of its rights or transfer all or part of its
obligations under this Debenture and without prejudice to the
generality of Clause 27, the Lender may disclose to the Assignee
Lender or Assignee Lenders or potential assignee or transferee such
information about the Borrower as the Lender shall consider
appropriate.
38. SEVERABILITY
If any one or more of the provisions contained in this Debenture or any
part of such provisions shall be deemed invalid, unlawful or unenforceable in
any respect under any applicable law, the validity, legality and enforceability
of the remaining provisions or part thereof contained herein shall not in any
way be affected or impaired but this Debenture shall be construed as if such
invalid, unlawful or unenforceable provision or part thereof had never been
contained herein.
39. GOVERNING LAW AND SUBMISSION TO JURISDICTION
This Debenture shall be governed by, and construed in accordance with, the
laws of Singapore.
40. INTERPRETATION
(1) In this Debenture where the context so admits:-
(a) an "authorization" includes any approval, consent, licence, permit,
franchise, permission, registration, resolution, direction,
declaration and exemption;
(b) "borrowed moneys" mean (a) moneys borrowed or raised (including hire
under financial leases) and interest thereon, (b) any liability under
any bond, note, guarantee, indemnity or other security or under
acceptance credit facilities, (c) any liability in respect of the
acquisition cost of assets or services to the extent payable after the
time of acquisition or possession thereof other than assets or
services obtained in the normal course of business, and (d) any
guarantee or other assurance against financial loss in respect of such
moneys borrowed or raised, interest or liability;
(c) "Borrower" includes the successors of the Borrower;
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(d) "business day" means any day, other than a Saturday, Sunday or public
holiday, on which banks are open for business in Singapore, and (if a
transaction relates to United States Dollars) also in New York City;
(e) "CTB Securities" has the meaning assigned to it in a loan agreement of
even date made between the Lender and the Borrower;
(f) an "encumbrance" includes any mortgage, charge (whether fixed or
floating), pledge, lien (other than a lien arising by operation of law
in the ordinary course of business unless the lien remains
undischarged fourteen (14) days after it arose), hypothec,
hypothecation, assignment, fiduciary assignment, fiduciary transfer,
power of attorney to establish hypothec, power of attorney to sell,
security interest or any other type of preferential agreement or
arrangement having substantially the same economic effect (including
sale and repurchase agreements, title retention or flawed asset
arrangements);
(g) "Event of Default" means any, each or all (as the context may require)
of the events specified in Clause 13(1);
(h) "indebtedness" shall be construed so as to include any obligation
(whether incurred as principal or as surety) for the payment or
repayment of money, whether present or future, actual or contingent;
(i) "Lender" includes the successors assigns and transferees of the
Lender;
(j) "Potential Event of Default" means any condition act or event which
with the giving of notice lapse of time and/or determination of
materiality or other condition would become an Event of Default;
(k) any reference to a "Receiver" includes a reference to a "Receiver and
Manager" or "Manager";
(l) "this Debenture" means this deed of debenture and includes any
amendments and variations thereto or any further deed of debenture or
charge or any deed executed in addition to or in substitution for the
Debenture;
(m) in the absence of any expression to the contrary, all payments and
repayments made under the provisions of this Debenture shall be made
in the currency in which the relevant amount is incurred;
(n) words importing the masculine gender include the feminine or neuter
gender;
(o) words importing the singular number include the plural number and vice
versa.
(2) The headings to the clauses hereof shall not be deemed to be a part
thereof or be taken into consideration in the interpretation or
construction thereof or of this Debenture.
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IN WITNESS WHEREOF the Borrower has caused its Common Seal to be hereunto
affixed.
The Common Seal of UNITED TEST )
AND ASSEMBLY CENTER (S) PTE )
LTD was hereunto affixed in the )
presence of:- ) [SEAL]
DIRECTOR
-------------------------
DIRECTOR/SECRETARY /s/ [SIGNATURE]
-------------------------
I, , an Advocate and Solicitor of the
Supreme Court of the Republic of Singapore practising in Singapore hereby
certify that on the day of A.D. 1999 the Common
Seal of UNITED TEST AND ASSEMBLY CENTER (S) PTE LTD was duly affixed to the
above written instrument in Singapore in my presence in accordance with the
regulations of the Borrower (which regulations have been produced and shown to
me).
WITNESS my hand this day of 1999.
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