EXHIBIT 10.55
DATED FEBRUARY 16, 1996
MICROPOLIS CORPORATION
as Borrower
-and-
ST CHATSWORTH PTE LTD
as Lender
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US$10,000,000
FACILITY AGREEMENT
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C O N T E N T S
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CLAUSE HEADING PAGE
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1. INTERPRETATION 1
2. THE FACILITY 2
3. CONDITIONS PRECEDENT 2
4. DRAWDOWN 2
5. REPAYMENT 3
6. INTEREST 3
7. TAXES 4
8. REPRESENTATION AND WARRANTIES 5
9. UNDERTAKINGS 6
10. EVENTS OF DEFAULT 6
11. DEFAULT INTEREST 8
12. INDEMNITIES 9
13. SET-OFF 9
14. EXPENSES AND STAMP DUTY 10
15. ASSIGNMENT 10
16. REMEDIES, WAIVERS, AMENDMENTS AND CONSENTS 11
17. COMMUNICATIONS 11
18. PARTIAL INVALIDITY 11
19. GOVERNING LAW AND JURISDICTION 11
20. EXECUTION 12
SCHEDULE 1--CONDITIONS PRECEDENT 13
SCHEDULE 2--FORM OF REQUEST FOR ADVANCE 14
THIS AGREEMENT is made on February 16, 1996 BETWEEN:
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(1) MICROPOLIS CORPORATION (the "Borrower"); and
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(2) ST CHATSWORTH PTE LTD (the "Lender").
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WHEREAS:-
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(A) The Borrower and the Lender have pursuant to an Asset Purchase Agreement, as
defined below agreed to sell and purchase the Disk Drive Business as defined in
the Asset Purchase Agreement.
(B) At the request of the Borrower, the Lender is prepared to make certain
advances to the Borrower to assist the Borrower in carrying on the Disk Drive
Business prior to the Closing Date as defined in the Asset Purchase Agreement.
IT IS AGREED as follows:-
1. INTERPRETATION
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Definitions: In this Agreement, except to the extent that the context
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requires otherwise:-
"Advance" means, depending on the context, an advance made or to be made
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by the Lender to the Borrower pursuant to this Agreement;
"Asset Purchase Agreement" means the Asset Purchase Agreement dated 24th
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January, 1996 made between (1) Micropolis Corporation and (2) ST
Chatsworth Pte Ltd;
"Available Amount" means the Facility Amount less (i) that part of it
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(if any) which has been cancelled in accordance with this Agreement and
(ii) the Advances made by the Lender to the Borrower under this Agreement;
"Business Day" means a day (other than Saturday or Sunday) on which
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commercial banks and the foreign exchange market are open for business
in Singapore and, if on that day a payment or transfer of funds is to be
made under or pursuant to this Agreement, New York City also;
"Event of Default" means one of the events mentioned in Clause 10(A);
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"Facility" means the facility granted under this Agreement;
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"Facility Amount" means US$10,000,000;
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"Margin" means 1 per cent.;
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"Potential Event of Default" means any event or circumstance which, if it
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continued after the giving of any notice, the expiry of any grace period
and/or (as the case may be) the making of any determination by the Lender,
provided for in Clause 10(A), would become an Event of Default;
"Repayment Date" means 29th March, 1996; and
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"US Dollar(s)" and "US$" mean the lawful currency of the United States of
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America.
2. THE FACILITY
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(A) Amount: Subject to the Lender's right of review as stated in sub-Clause (C)
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below, the Lender agrees to make to the Borrower Advances, in an aggregate
principal amount not exceeding US$10,000,000 upon the terms and subject to the
conditions of this Agreement.
(B) Purpose: The Borrower shall use the proceeds of each Advance to repay the
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suppliers approved by the Lender.
(C) Review of Facility: Notwithstanding anything herein to the contrary,
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expressed or implied, the Facility hereby agreed to be made available and
granted from time to time to the Borrower shall, at the absolute discretion of
the Lender, be reviewed from time to time and at any time and may be subject to
cancellation by the Lender as the Lender deems fit, and except where the Lender
has given the notice to the Borrower pursuant to Clause 4(B) that it is prepared
to make an Advance requested, nothing in this Agreement shall be deemed to
impose on the Lender any obligation either at law or in equity to make or
continue to make the Facility available to the Borrower or to make any Advance
to the Borrower.
3. CONDITIONS PRECEDENT
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The Borrower may not make its request for an Advance until the Lender has
confirmed to it that the Lender has received each of the documents listed in
Schedule 1 and has found them satisfactory.
4. DRAWDOWN
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(A) Drawdown Notice: Subject to the provisions of this Agreement, Advances may
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be made by the Lender to the Borrower at its request if the following additional
conditions are fulfilled:-
(i) not later than 10 a.m. on the third Business Day before the proposed
date of the relevant Advance (or such other Business Day before the
proposed date of the relevant Advance as the Lender may agree), the
Lender has received from the Borrower a notice substantially in the
form set out in Schedule 2 specifying:-
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(a) the proposed advance date (which must be a Business Day)
(b) the amount of the Advance (which must be equal to or less than
the Available Amount); and
(c) a list of the suppliers and the amount owing to them by the
Borrower, which is to be discharged by the proceeds of the
Advance.
(ii) all representations and warranties in Clause 8 (except to any extent
waived in accordance with Clause 16(B)) have been complied with and
would be correct in all respects if repeated on the proposed date of
the Advance by reference to the circumstances then existing;
(iii) no Event of Default or Potential Event of Default has occurred on or
before the proposed date of the Advance or will occur as a result of
the making of the Advance (unless otherwise waived in accordance
with Clause 16(B)); and
(iv) not later than 10 a.m. on the proposed date of the Advance, the Lender
has received and found satisfactory such additional information,
legal opinions and/or other documents relevant in the context of or
relating to this Agreement as it may request.
(B) Acceptance by Lender: (i) On receipt of the notice of drawdown pursuant to
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sub-Clause (A), the Lender shall not later than 2 Business Days thereafter
inform the Borrower as to whether it is prepared to make the Advance and the
amount of the Advance it is prepared to make.
(ii) In the event the Lender notifies the Borrower that it is prepared to
make the Advance, it shall make available the amount of the Advance it is
prepared to make in accordance with the terms of the notice of drawdown.
5. REPAYMENT
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Subject as otherwise provided in this Agreement, the Advances outstanding
shall be repaid in full by the Borrower on the Repayment Date.
6. INTEREST
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(A) Interest Periods: Interest shall be calculated on each Advance by reference
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to the term of the Advance and shall begin on the proposed date of that Advance
and shall accrue from day to day based on a year of 360 days.
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(B) Normal Interest Rate: The rate of interest applicable to each Advance shall
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be the rate per annum (as determined by the Lender) equal to the sum of the
Margin and the US Dollar prime lending rate of Citibank N.A. Singapore branch
prevailing from time to time.
(C) Payment of Interest: Subject as otherwise provided in this Agreement, the
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Borrower shall pay the interest accrued on each Advance at the rate applicable
on the Repayment Date.
7. TAXES
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(A) Payments to be Free and Clear: All sums payable by the Borrower under this
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Agreement shall be paid (i) free of any restriction or condition, (ii) free and
clear of and (except to the extent required by law) without any deduction or
withholding for or on account of any tax and (iii) without deduction or
withholding (except to the extent required by law) on account of any other
amount, whether by way of set-off or otherwise.
(B) Grossing-up of Payments: (i) If the Borrower or any other person (whether or
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not a party to, or on behalf of a party to, this Agreement) must at any time
deduct or withhold any tax or other amount from any sum paid or payable by, or
received or receivable from, the Borrower under this Agreement, the Borrower
shall pay such additional amount as is necessary to ensure that the Lender
receives on the due date and retains (free from any liability other than tax on
its own overall net income) a net sum equal to what it would have received and
so retained had no such deduction or withholding been required or made.
(ii) If the Borrower or any other person (whether or not a party to, or on
behalf of a party to, this Agreement) must at any time pay any tax or other
amount on, or calculated by reference to, any sum received or receivable by the
Lender under this Agreement (except for a payment by the Lender of tax on its
own overall net income), the Borrower shall pay or procure the payment of that
tax or other amount before any interest or penalty becomes payable or, if that
tax or other amount is payable and paid by the Lender, shall reimburse it on
demand for the amount paid by it.
(iii) The Borrower shall:-
(a) within 30 days after paying any sum from which it is required by
law to make any deduction or withholding, and within 30 days
after the due date of payment of any tax or other amount which it
is required by paragraph (ii) to pay, deliver to the Lender
evidence satisfactory to the Lender of that deduction,
withholding or payment and (where remittance is required) of the
remittance thereof to the relevant taxing or other authority; and
(b) promptly after receipt from the relevant taxing or other
authority of its acknowledgement of receipt for any payment made
pursuant to paragraph (ii) above, deliver an original or
certified copy thereof to the Lender.
(iv) as soon as the Borrower is aware that any such deduction, withholding
or
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payment is required (or of any change in any such requirement), it shall notify
the Lender.
8. REPRESENTATIONS AND WARRANTIES
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The Borrower represents and warrants to and for the benefit of the Lender
that:-
(1) Powers: (a) it has the power to enter into, exercise its rights and
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perform and comply with its obligations under this Agreement;
(ii) Authorisation and Consents: all action, conditions and things
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required to be taken, fulfilled and done (including the obtaining of
any necessary consents) in order (a) to enable it lawfully to enter
into, exercise its rights and perform and comply with its
obligations under this Agreement, (b) to ensure that those
obligations are valid, legally binding and enforceable, (c) to
ensure that those obligations rank and will at all times rank in
accordance with Clause 9(i) and (d) to make this Agreement
admissible in evidence in the courts of Singapore have been taken,
fulfilled and done;
(iii) Non-Violation of Laws by Borrower: its entry into, exercise of its
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rights and/or performance of or compliance with its obligations
under this Agreement do not and will not violate, or exceed any
borrowing or other power or restriction granted or imposed by,
(a) any law to which it is subject, (b) any provision of its
constitutive documents or (c) any agreement to which it is a
party or which is binding on it or its assets and do not and
will not result in the creation of, or oblige it to create, any
security over those assets;
(iv) Obligations Binding: its obligations under this Agreement are
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valid, binding and enforceable;
(v) Litigation: no litigation, arbitration or administrative proceeding
-----------
is current or pending or, so far as it is aware, threatened to
restrain the entry into, exercise of its rights under and/or
performance or enforcement of or compliance with its obligations
under this Agreement;
(vi) Winding-up of Borrower: no meeting has been convened for its
----------------------
winding-up or for the appointment of a receiver, trustee,
judicial manager or similar officer of it, its assets or any
of them, no such step is intended by it and, so far as it is
aware, no petition, application or the like is outstanding for its
winding-up or for the appointment of a receiver, trustee, judicial
manager or similar officer of it, its assets or any of them; and
(vii) Repetition: each of the above representations and warranties will
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be correct and complied with in all respects so long as any sum
remains
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to be lent or remains payable under this Agreement as if repeated
then by reference to the then existing circumstances.
9. UNDERTAKINGS
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The Borrower undertakes that, so long as any sum remains to be lent or
remains payable under this Agreement:-
(i) Ranking of Obligations: its payment obligations under this Agreement
-----------------------
rank and will at all times rank at least equally and rateably in all
respects with all its other unsecured and/or unsubordinated
indebtedness except for such indebtedness as would, by virtue only of
the law in force in the United States of America, be preferred in the
event of its winding-up;
(ii) Negative Pledge: except for security existing at the date hereof
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notice of which has been given to the Lender, it will not create or
have outstanding any security on or over any of its assets;
(iii) Use of Advance: it will use the proceeds of each Advance to repay the
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suppliers approved by the Lender and as directed by the Lender; and
(iv) Further Assurance: it will from time to time on request by the Lender
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do or procure the doing of all such acts and will execute or procure
the execution of all such documents as the Lender may consider
necessary or desirable for giving full effect to this Agreement or
securing to the Lender the full benefits of all rights, powers and
remedies conferred upon the Lender in this Agreement.
10. EVENTS OF DEFAULT
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(A) Events of Default: The following are Events of Default:-
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(i) Non-Payment: the Borrower does not pay in the manner provided in this
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Agreement any sum payable under it when due;
(ii) Breach of Other Obligations: the Borrower does not perform or comply
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with any one or more of its obligations (other than the payment
obligation of the Borrower referred to in paragraph (i)) under this
Agreement and, if in the opinion of the Lender that default is capable
of remedy, it is not in the opinion of the Lender remedied within 14
days of its occurrence;
(iii) Breach of Warranty: any representation, warranty, certification or
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statement by the Borrower in this Agreement or in any other document
delivered under this Agreement is not complied with or is or proves to
have been incorrect in any respect when made or, if it had been made
on any later date by reference to the circumstances then existing,
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would have been incorrect in any respect on that later date, or is
not complied with or is or proves to have been incorrect when made or
deemed repeated;
(iv) Cross Default: any other indebtedness of the Borrower or any of its
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subsidiaries in respect of borrowed money is or is declared to be or
is capable of being rendered due and payable before its normal
maturity by reason of any actual or potential default, event of
default or the like (however described) or is not paid when due nor
within any applicable grace period in any agreement relating to that
indebtedness or, as a result of any actual or potential default,
event of default or the like (however described) any facility
relating to any such indebtedness is or is declared to be or is
capable of being cancelled or terminated before its normal expiry
date or any person otherwise entitled to use any such facility is not
so entitled; the foregoing shall not apply to default under the CIT
Financing Agreement.
(v) Insolvency: the Borrower or any of its subsidiaries is (or is, or
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could be, deemed by law or a court to be) insolvent or unable to pay
its debts, stops, suspends or threatens to stop or suspend payment of
all or a material part of (or of a particular type of) its
indebtedness;
(vi) Enforcement Proceedings: a distress, attachment, execution or other
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legal process is levied, enforced or sued out on or against the
assets of the Borrower or any of its subsidiaries and is not
discharged or stayed within 14 days;
(vii) Security Enforceable: any security on or over the assets of the
---------------------
Borrower or any of its subsidiaries becomes enforceable;
(viii) Winding-up: any step is taken by any person with a view to the
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winding-up of the Borrower or any of its subsidiaries or for the
appointment of a liquidator (including a provisional liquidator),
receiver, judicial manager, trustee, administrator, agent or similar
officer of the Borrower or any of its subsidiaries or over any part
of the assets of the Borrower or any of its subsidiaries;
(ix) Cessation of Business: the Borrower or any of its subsidiaries ceases
----------------------
or threatens to cease to carry on all or a substantial part of its
business;
(x) Authorisations and Consents: any action, condition or thing
----------------------------
(including the obtaining of any necessary consent, approvals or
licences) at any time required to be taken, fulfilled or done for any
of the purposes stated in Clause 8(ii) is not taken, fulfilled or
done, or any such consent, approval or licence is revoked, withdrawn,
cancelled or otherwise ceases to be in full force and effect without
modification or any condition in or relating to any such consent is
not complied with (unless that consent or condition is no longer
required or applicable);
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(xi) Illegality: it is or will become unlawful for the Borrower to
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perform or comply with any one or more of its obligations under
this Agreement;
(xii) Cessation: this Agreement ceases for any reason (or is claimed by
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the Borrower) not to be the legal and valid obligations of the
Borrower binding upon it in accordance with its terms;
(xiii) Litigation: any litigation, arbitration or administrative proceeding
-----------
is current or pending to (a) restrain the exercise of any of the
rights and/or the performance or enforcement of or compliance with
any of the obligations of the Borrower under this Agreement or (b)
which has or could have a material adverse effect on the Borrower or
on the Borrower and its subsidiaries taken as a whole;
(xiv) Analogous Event: any event occurs which, under the law of any
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relevant jurisdiction, has an analogous or equivalent effect to any
of the events mentioned in paragraphs (v), (vi), (viii) or (ix); and
(xv) Material Adverse Change: any event occurs or circumstances arise
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which the Lender reasonably determines give(s) reasonable grounds
for believing that the Borrower may not (or may be unable to)
perform or comply with any one or more of its obligations under this
Agreement.
(B) Cancellation/Acceleration: If at any time and for any reason (and whether
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within or beyond the control of either party to this Agreement) any Event of
Default has occurred then at any time thereafter, whether or not any Event of
Default is continuing, the Lender may by notice to the Borrower declare:-
(i) the Facility to be cancelled, whereupon it shall be cancelled;
and/or
(ii) all Advances, all unpaid accrued interest and any other sum then
payable under this Agreement to be immediately due and payable,
whereupon they shall become so due and payable.
11. DEFAULT INTEREST
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(A) Interest on Overdue Sums: If the Borrower does not pay any sum payable
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under this Agreement (including, without limitation, any sum payable under this
Clause) when due, it shall pay interest on the amount from time to time
outstanding in respect of that overdue sum for the period beginning on its due
date and ending on the date of its receipt by the Lender (both before and after
judgment) in accordance with this clause.
(B) Default Interest Periods and Rates: Interest under this Clause shall be
-----------------------------------
calculated by reference to successive interest periods, each of which (other
than the first, which shall begin on the due date) shall begin on the last day
of the previous one. Each such interest period shall be of one month or such
shorter period as the Lender may from time to time select and the rate of
interest applicable for all or any part of a particular interest period
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shall be the rate per annum equal to the sum of five per cent. and the US Dollar
prime lending rate of Citibank N.A. Singapore branch prevailing from time to
time (as certified by it and expressed as a rate per annum).
(C) Payment and Compounding of Default Interest: (i) On the last day of each
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interest period, the Borrower shall pay the unpaid interest accrued during that
interest period on the overdue sum to which it relates at the rate applicable
for that interest period.
(ii) Interest accrued under this Clause on an overdue sum shall be due on
demand by the Lender but, if not previously demanded, shall be paid when due in
accordance with paragraph (i). If not paid when due, the interest shall be added
to that overdue sum and itself bear interest accordingly.
12. INDEMNITIES
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(A) Miscellaneous Indemnities: The Borrower shall on demand indemnify the
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Lender against any funding or other cost, loss, expense or liability sustained
or incurred by it as a result of:-
(i) the occurrence or continuance of any Event of Default or
Potential Event of Default; or
(ii) the receipt or recovery by the Lender of all or any part of any
Advance otherwise than on the Repayment Date.
(B) Currency Indemnity: (i) US Dollars is the sole currency of account and
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payment for all sums payable by the Borrower under or in connection with this
Agreement, including damages.
(ii) Any amount received or recovered in a currency other than US Dollars
(whether as a result of, or of the enforcement of, a judgment or order of a
court of any jurisdiction, in the winding-up of the Borrower or otherwise) by
the Lender in respect of any sum expressed to be due to it from the Borrower
under this Agreement shall only constitute a discharge to the Borrower to the
extent of the amount in US Dollars which it is able, in accordance with its
usual practice, to purchase with the amount so received or recovered in such
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).
(iii) If that amount in US Dollars is less than the amount in US Dollars
expressed to be due to the Lender under this Agreement, the Borrower shall
indemnify it against any loss sustained by it as a result. In any event, the
Borrower shall indemnify the Lender against the cost of making any such
purchase. For the purpose of this sub-Clause (B), it will be sufficient for the
Lender to demonstrate that it would have suffered a loss had an actual exchange
or purchase been made.
13. SET-OFF
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The Borrower authorises the Lender to apply (without prior notice) any
credit
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balance (whether or not then due) to which it is at any time beneficially
entitled on any account at, any sum held to its order by and/or any liability of
the Lender including the liability of the Lender to make the payments under the
Asset Purchase Agreement in or towards satisfaction of any sum then due from it
to the Lender under this Agreement and unpaid and, for that purpose, to convert
one currency into another (but so that nothing in this Clause shall be effective
to create a charge). The Lender shall not be obliged to exercise any of its
rights under this Clause, which shall be without prejudice and in addition to
any right of set-off, combination of accounts, lien or other right to which it
is at any time otherwise entitled (whether by operation of law, contract or
otherwise).
14. EXPENSES AND STAMP DUTY
-----------------------
Whether or not any Advance is made under this Agreement, the Borrower shall
pay:-
(i) on demand, all costs and expenses (including legal fees) incurred by
the Lender in connection with the preparation, negotiation or entry
into of this Agreement and/or any amendment of, supplement to or
waiver in respect of this Agreement;
(ii) on demand, all costs and expenses (including legal fees) incurred by
the Lender in protecting or enforcing any rights under this Agreement
and/or any such amendment, supplement or waiver; and
(iii) promptly, and in any event before any interest or penalty becomes
payable, any stamp, documentary, registration or similar duty or tax
payable in connection with the entry into, performance, enforcement
or admissibility in evidence of this Agreement and/or any such
amendment, supplement or waiver, and shall indemnify the Lender
against any liability with respect to or resulting from any delay in
paying or omission to pay any such duty or tax.
15. ASSIGNMENT
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(A) Benefit and Burden of Agreement: This Agreement shall benefit and be
--------------------------------
binding on the parties, their permitted assignees and their respective
successors. Any reference in this Agreement to either party shall be construed
accordingly.
(B) Borrower: The Borrower may not assign or transfer all or part of its rights
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or obligations under this Agreement.
(C) Lender: the Lender may assign all or part of its rights or transfer all or
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part of its obligations (if any) under this Agreement without the consent of the
Borrower. Any such assignee or transferee shall be and be treated as a party for
all purposes of this Agreement and shall be entitled to the full benefit of this
Agreement to the same extent as if it were an original party in respect of the
rights or obligations assigned or transferred to it.
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16. REMEDIES, WAIVERS, AMENDMENTS AND CONSENTS
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(A) No Implied Waivers: No failure on the part of the Lender to exercise, and
-------------------
no delay on its part in exercising, any right or remedy under this Agreement
will operate as a waiver thereof, nor will any single or partial exercise of any
right or remedy preclude any other or further exercise thereof or the exercise
of any other right or remedy. The rights and remedies provided in this Agreement
are cumulative and not exclusive of any other rights or remedies (whether
provided by law or otherwise).
(B) Amendments, Waivers and Consents: Any provision of this Agreement may be
---------------------------------
amended or supplemented only if the Borrower and the Lender so agree in writing
and any Event of Default, Potential Event of Default, provision or breach of any
provision of this Agreement may be waived before or after it occurs only if the
Lender so agrees in writing. Any consent by the Lender under any provision of
this Agreement must also be in writing. Any such waiver or consent may be given
subject to any conditions thought fit by the Lender and shall be effective only
in the instance and for the purpose for which it is given.
17. COMMUNICATIONS
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Each communication under this Agreement shall be made by fax or otherwise
in writing. Each communication or document to be delivered to any party under
this Agreement shall be sent to that party at the fax number or address, and
marked for the attention of the person (if any), from time to time designated by
that party for the purpose of this Agreement. The initial fax number, address
and person (if any) so designated by each party are set out under its name at
the end of this Agreement.
18. PARTIAL INVALIDITY
------------------
The illegality, invalidity or unenforceability of any provision of this
Agreement under the law of any jurisdiction shall not affect its legality,
validity or enforceability under the law of any other jurisdiction nor the
legality, validity or enforceability of any other provision.
19. GOVERNING LAW AND JURISDICTION
------------------------------
(A) Governing Law: This Agreement shall be governed by, and construed in
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accordance with, the laws of Singapore.
(B) Singapore Courts: For the benefit of the Lender, the parties irrevocably
-----------------
agree that the courts of Singapore are to have jurisdiction to settle any
disputes which may arise out of or in connection with this Agreement and that,
accordingly, any legal action or proceedings arising out of or in connection
with this Agreement ("Proceedings") may be brought in those courts and the
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Borrower irrevocably submits to the jurisdiction of those courts.
(C) Other Competent Jurisdiction: Nothing in this Clause shall limit the right
-----------------------------
of the Lender to take Proceedings against the Borrower in any other court of
competent jurisdiction nor shall the taking of Proceedings in one or more
jurisdictions preclude the
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Lender from taking Proceedings in any other jurisdiction, whether concurrently
or not.
(D) Venue: The Borrower irrevocably waives any objection which it may at any
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time have to the laying of the venue of any Proceedings in any court referred to
in this Clause and any claim that any such Proceedings have been brought in an
inconvenient forum.
(E) Service of Process: (i) The Borrower irrevocably consents to any process in
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any Proceedings anywhere being serviced by mailing a copy by registered prepaid
airmail post to it in accordance with Clause 17. Such service shall become
effective 14 days after mailing.
(ii) Nothing shall affect the right to serve process in any other manner
permitted by law.
(F) Consent to Enforcement, etc: The Borrower irrevocably and generally
----------------------------
consents in respect of any Proceedings anywhere to the giving of any relief or
the issue of any process in connection with those Proceedings including, without
limitation, the making, enforcement or execution against any assets whatsoever
(irrespective of their use or intended use) of any order or judgment which may
be made or given in those Proceedings.
20. EXECUTION
---------
This Agreement may be executed in counterparts and by each party hereto on
a separate counterpart, all of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier or facsimile transmission shall be effective as delivery
of a manually executed counterpart of this Agreement.
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S C H E D U L E 1
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CONDITIONS PRECEDENT
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1. A copy certified by a director or the Borrower of the Charter and By-Laws
of the Borrower.
2. A copy certified by a director of the Borrower of the resolutions of the
Borrower's Board of Directors approving this Agreement and authorising the
persons specified therein to sign this Agreement, give any certificate or
communications and take any other action required under or in connection with
this Agreement on its behalf.
3. Legal opinions dated on or after the date of this Agreement from ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, legal advisers in the United States of America to the Borrower, as to
such matters of the laws of the United States of America relevant to this
Agreement as the Lender may request.
-14-
S C H E D U L E 2
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FORM OF REQUEST FOR ADVANCE
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To: ST Chatsworth Pte Ltd
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#01-01/02 The ▇▇▇▇▇
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For the attention of: [Name and Title of relevant person]
Dear Sirs,
Micropolis Corporation
US$10,000,000 Facility Agreement
dated [ ] 1996
--------------------------------
We refer to the above Agreement between (i) ourselves, as Borrower, and
(ii) yourselves, as Lender. Terms defined in the Agreement have the same meaning
in this notice.
We give you notice that we request an Advance of US$[ ] to be made
to us under the Agreement on [date] (or, if that is not a Business Day, the next
succeeding Business Day).
We confirm that no Event of Default or Potential Event of Default has
occurred or will occur as a result of the making of the Advance, we represent
and warrant that the representations and warranties contained in Clause 8 of the
Agreement have been complied with and would be correct in all respects if
repeated today by reference to the circumstances now existing and we confirm
that all the undertakings on our part contained in Clause 9 of the Agreement
have been fully performed and observed by us.
We annex herewith a list of the suppliers and the amount owing to them
which is to be discharged by the proceeds of the Advance.
-15-
You are requested to make the proceeds of the Advance to us by credit to our
account as provided from time to time.
Dated February 16, 1996.
Yours faithfully,
For and on behalf of
MICROPOLIS CORPORATION
By: /s/ B. V. ▇▇▇▇▇▇▇
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Name: B. V. ▇▇▇▇▇▇▇
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Title: V.P. Finance, CFO & Treasurer
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-16-
IN WITNESS WEREOF this Agreement has been entered into on the date stated
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at the beginning.
The Borrower
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MICROPOLIS CORPORATION
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▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Fax Number: 1818709 3302
Attention: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By: /s/ B. V. ▇▇▇▇▇▇▇ Witness: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: B. V. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: V.P. Finance, CFO & Treasurer Address: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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The Lender
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ST CHATSWORTH PTE LTD
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Fax Number: ▇▇-▇▇▇-▇▇▇▇
Attention: Mr ▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇ ▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇
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Title: President, ST Chatsworth