Dated this 18th day of May 2009 Between Fame Trading Ltd. as Lender And Astrata (Asia Pacific) Pte. Ltd. as Borrower
Exhibit
10.1
Dated
this 18th day of May 2009
Between
Fame
Trading Ltd.
as
Lender
And
Astrata
(Asia Pacific) Pte. Ltd.
as
Borrower
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Advocates
and Solicitors
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#▇▇-▇▇,
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1
CONTENTS
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Clause
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Heading
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Page
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1.
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Definitions
and Interpretations
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1-5
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2.
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Facility
|
5
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|
3.
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Conditions
Precedent and Availability
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5-6
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|
4.
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Disbursement
of Facility
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6-7
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5.
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Interest
on Facility
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7
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6.
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Repayment
of Facility
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7-8
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7.
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Facility
Fee
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8
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|
8.
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Representations,
Warranties and Covenants
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8
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|
9.
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Securities
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8
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10.
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Designated
Bank Accounts
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8-9
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11.
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Set-off
and Withholdings
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9
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12.
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Notices
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9-11
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13.
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Assignment
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11
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14.
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Partial
Invalidity
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12
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15.
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Miscellaneous
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12-13
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Schedule
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Heading
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Page
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1
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Corporate
Structure of Astrata Group Inc.
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14
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2
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Representations.
Warranties and Covenants
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15-24
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3
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Borrowers
Intellectual Property Rights
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25-26
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2
This
Facility Agreement ("Agreement") is made the 18th
day of May, 2009 BETWEEN:-
(1) FAME
TRADING LTD., a company incorporated in British Virgin Islands and having its
registered office at Akara Building, ▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Cay 1, Road
Town, Tortola, British Virgin Islands ("Lender"); and
(2) ASTRATA
(ASIA PACIFIC) PTE LTD (Co. Reg No. 200309962E), a company incorporated in the
Republic of Singapore and having its registered office at ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇,
#▇▇-▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ("Borrower").
RECITAL:-
(A) The
Lender has, at the request of the Borrower. agreed to make available to the
Borrower, the Facility (as hereinafter defined) on the terms and conditions
contained in the Transaction Documents (as hereinafter defined).
(B) The
Borrower is a subsidiary of the Holding Company (as hereinafter defined), which
has a number of subsidiaries and associate companies as diagrammatically
illustrated in Schedule 1.
IT IS
HEREBY AGREED as follows:
1. Definitions
and Interpretation
1.1 In
this Agreement, unless the context otherwise admits, all words and expressions
shall have the following meanings respectively:-
"Business
Day" means a day on which the banks are open for business in United States of
America and Singapore except Saturday, Sunday and public holidays in the said
countries;
"Connected
Person" means –
(a) in
relation to an individual:
3
(i)
the individual's spouse, son, adopted son, step-son, daughter, adopted daughter,
step-daughter, father, step-father, mother, stepmother, brother,
step-brother, sister or step-sister; and
(ii) a
firm, a limited liability partnership or a corporation in which the individual
or any of the persons mentioned in sub-paragraph (i) has control of not less
than 20 per cent of the voting power in the firm, limited liability partnership
or corporation, whether such control is exercised individually or
jointly
(b) in
relation to a firm, limited liability partnership or a corporation: another
firm, limited liability partnership or corporation in which the first-mentioned
firm, limited liability partnership or corporation has control of not less than
20 per cent of the voting power;
"Debentures”
means:
(i) the
debenture executed or to be executed between the Lender and the Borrower;
and
(ii) the
debenture executed or to be executed between the Lender and the Second
Chargor,
"Disbursement"
has the meaning ascribed to it in Clause 4.1;
"Encumbrance"
means any claim, charge, mortgage, security, lien, option, equity, power of
sale, hypothecation or other third party rights, retention of title, right of
pre-emption, right of first refusal or security interest of any
kind;
"Events
of Default" means the events of default as provided in the
Debentures;
"Facility"
means the principal sum of US$8,500,000 (or such lesser sum as the case maybe)
that shall be advanced by the Lender to the Borrower pursuant and subject to
this Agreement;
4
"Facility
Fee" has the meaning ascribed to it in Clause 7;
“Facility
Repayment Date" means the date immediately following the day on which the period
of 90 days expires from the date the Facility (or the first portion of the
Facility, as the case maybe) is disbursed by the Lender to the
Borrower;
"Holding
Company" means Astrata Group Inc. (Co. Reg No. C55761996), a company
incorporated in the State of Nevada. United States of America, and having its
registered office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
United States of America, which is the holding company of the
Borrower;
"Interest
Rate" means the rate equivalent to LIBOR plus 5 per cent per annum;
"LIBOR"
means the daily reference rate based on the London Interbank Offer
Rate;
“Parties"
mean the parties to this Agreement:
"Second
Chargor" means Astrata (Singapore) Pte Ltd (Co. Reg. No. 200309965W), a company
incorporated in the Republic of Singapore and having its registered office at
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ #▇▇-▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
"Senior
Employee" means an employee of the Borrower whose monthly remuneration exceeds
US$ 10,000.00;
"Total
Indebtedness" means collectively the principal sum of US$8.500.000 (or such
lesser sum that have been disbursed by the Lender to the Borrower) and all
interest, fees, costs. and other moneys whatsoever, whether actually or
contingently, which are expressed to be payable (whether at maturity or
otherwise) by the Borrower under or in connection with or which the Borrower has
covenanted to pay or discharge under the Transaction Documents;
5
"Transaction
Documents" means collectively this Agreement and the following
documents:-
(i) the
Debenture executed or to be executed between the Lender and the
Borrower;
(ii) the
Debenture executed or to be executed between the Lender and the Second
Chargor;
(iii) the
Pledge Agreement executed or to be executed between the Lender and the Holding
Company; and
(iv) the
Continuing Guarantee executed or to be executed between the Lender and the
Holding Company.
any other
facility or security document or other document that may hereafter and from time
to time be executed in connection with the Facility including any amendments,
variations, supplements or modifications thereto and Transaction Document means
each and any one of them.
"US$"
means the lawful currency of United States of America.
1.2 Construction
(a) The
headings in this Agreement are inserted for convenience only and shall not
affect the construction of this Agreement;
(b) Any
reference in this Agreement to "this Agreement" includes all amendments.
additions, and variations thereto agreed between the parties
hereto;
(c) Unless
the context otherwise requires. words importing the singular shall include the
plural and vice versa; words importing a specific gender shall include the other
genders (male, female or neuter), and "person" shall include an individual,
corporation, company, partnership, firm, trustee,
6
trust,
executor, administrator or other legal personal representative, unincorporated
association, joint venture, syndicate or other business enterprise, any
governmental, administrative or regulatory authority or agency (notwithstanding
that "person" may be sometimes used herein in conjunction with some of such
words), and their respective successors, legal personal representatives and
assigns, as the case may be, and pronouns shall have a similarly extended
meaning;
(d) A
reference to a "month" is a reference to a period starting on one day in a
calendar month and ending on the day immediately preceding the numerically
corresponding day in the next succeeding calendar month; and
(e) The
words "written" and "in writing" include any means of visible reproduction.
References to "Recitals", "Clauses", and "Schedules.' are to the recitals,
clauses of, and the schedules to. this Agreement (unless the context otherwise
requires). Any reference to a "paragraph" is to a reference to a paragraph of
the Clause in which such reference appears. The Schedules forms part of this
Agreement and have the same force and effect as if expressly set out in the body
of this Agreement.
2. Facility
Subject
to the provisions of the Transaction Documents, the Lender hereby agrees to make
available to the Borrower the Facility at the time and in the manner herein
provided.
3. Conditions
Precedent and Availability
3.1 The
Facility shall be made available to the Borrower subject to the fulfilment of
the following conditions precedent, that is to say:-
7
(a) the
Lender shall have received in form and substance satisfactory to it the
following:-
(i) the
Transaction Documents (other than this Agreement) duly executed by the Borrower;
and
(ii) any
other document which the Lender may reasonably require.
(b) all
representations, warranties and statements contained herein and in the
Transaction Documents or otherwise made in writing in connection herewith or in
any certificate or statement or document furnished pursuant to any provisions
hereof shall be true and correct with the same effect as though made on the date
on which the Facility or any portion thereof is made available by the Lender to
the Borrower; and
(c) there
shall not exist any Event of Default at or prior to the Disbursement of the
Facility or any portion thereof by the Lender to the Borrower.
4. Disbursement
of Facility
4.1 The
Lender hereby agrees to disburse the Facility or any portion thereof as and when
the Borrower requisitions for it.
4.2 The
Borrower shall produce to the Lender a requisition for Disbursement in writing
no later than 5 Business Days before the date such Disbursement is to be
effected.
4.3 The
aforesaid requisition for Disbursement shall be accompanied by a budget of
income and capital expenditure that has been or is to be incurred and paid by
the Borrower in the month immediately following the month in which the
requisition is made supported by invoices or any other evidence demonstrating
that such expenditure is payable in the relevant month and shall additionally
include a requisition
for a portion of the Facility Fee representing a sum equal to 5 per cent of the
relevant Disbursement.
8
4.4 The
Lender shall at its absolute discretion, determine whether or not any item of
expenditure shall be excluded from the relevant budget or the payment of which
shall be deferred to a later date and may accordingly exclude such item of
expenditure from any Disbursement that it may make to the Borrower.
4.5
Where a notice has been issued by the Lender to the Borrower pursuant to Clause
6.2 of this Agreement, the Lender shall no longer be obliged thenceforth to make
any further Disbursement (if any portion of the Facility is not disbursed as of
the date of the notice).
5. Interest
on Facility
5.1 The
Borrower shall pay to the Lender interest on the Facility at the Interest Rate
for the period commencing from the date the Facility or any portion thereof is
made available by the Lender to the Borrower to the Facility Repayment
Date.
5.2 In
the Event of Default by the Borrower in the payment of any sum due on the
Facility Repayment Date, the Borrower shall (in addition to the interest payable
under clause 5.1 above) pay an additional 5 per cent interest by way of default
interest on the Total Indebtedness for the period from the Facility Repayment
Date until the date the Total Indebtedness is received.
5.3 All
interest payable pursuant to this Agreement shall accrue from day to day and
shall be calculated on the basis of a year of 365 days.
6. Repayment
of Facility
6.1 Subject
to Clause 7 in the Debentures, the Borrower shall repay the Facility on the
Facility Repayment Date, provided that the Borrower may in its discretion,
repay the
Facility or any portion thereof at any date earlier than the Facility Repayment
Date, without any penalty or fee.
9
6.2 Notwithstanding
anything herein contained, the Facility is repayable on demand by the Lender at
any time, by the Lender sending a written notice to the Borrower to repay the
Facility within 7 Business Days from the date of the notice.
7. Facility
Fee
The
Borrower hereby acknowledge that Jaker Investments Limited ("Jaker) , a company
duly incorporated in Hong Kong and having its registered office at ▇▇▇▇▇ ▇▇▇▇-▇,
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ had introduced the
Borrower to the Lender and had negotiated the terms of the Facility with the
Borrower and the Lender. In consideration therefor the Borrower shall pay to
Jaker by way of a Facility Fee, a sum equal to 10 per cent of the Facility; 5
per cent of which shall be payable as and when the Disbursements are made, and
the remaining 5 per cent shall be payable on or before the expiry of 180 days
from the date hereof.
8. Representations,
Warranties and Covenants
The
Borrower's representations, warranties and covenants are as set out in Schedule
2.
9. Securities
The
Borrower hereby agrees and declares that the Debentures, the Pledge Agreement
and the Continuing Guarantee shall be and remain as continuing securities for
the payment of the Total Indebtedness.
10. Designated
Bank Accounts
10.1 Whether
or not an Event of Default shall have occurred, the Borrower shall at the
written request of the Lender forthwith cause a bank account to be opened in its
name and shall forthwith cause the Second Chargor to open a bank account in
its name
(collectively known as the "Designated Bank Accounts', and to do all things,
acts and deeds as shall be necessary for the said accounts to be operated
jointly by a director of the Borrower or of the Second Chargor (as the case may
be) and a person nominated by the Lender (Signatories"). The Borrower undertakes
to keep its Designated Bank Account opened and operated and cause the Second
Chargor to keep its Designated Bank Account opened and operated by the
Signatories, and to deposit and procure that the Second Charger deposits and/or
pay into the respective Designated Bank Accounts all monies that the Borrower
and the Second Chargor shall receive from time to time from their respective
debtors or otherwise, and continue to make such deposits or payments into the
said accounts until such time as the Borrower shall receive a notice in writing
from the Lender notifying the Borrower and the Second Chargor to do
otherwise.
10
10.2 All
monies deposited into the Designated Bank Accounts shall be appropriated,
disbursed or otherwise dealt with in such manner as the Signatories to the
respective Designated Bank Accounts shall from time to time
determine.
11. Set-off
and Withholdings
All sums
payable by the Borrower to the Lender pursuant to the Transaction Documents,
whether principal, interest or otherwise, shall be paid in full, free of any
restriction or condition, without set-off or counter-claim and without any
deduction or withholding for or on account of any taxes. All such taxes shall be
borne and paid by the Borrower.
12. Notices
12.1 Any
notice or other communication given under this Agreement shall be in writing and
shall be served by delivering it personally or sending it by registered post or
by registered airmail (if posted to a country other than where the serving Party
is located) or courier or facsimile transmission to the address or electronic
transmission
to the answerback address and for the attention of the relevant Party. Any such
notice shall be deemed to have been received:
11
a) if
delivered personally, at the time of delivery;
b) in
the case of registered post or by courier, 48 hours from the date of posting or
dispatch ;
c) in
the case of registered airmail, 5 days from the date of posting;
and
d) in
the case of facsimile or electronic transmission, at the time of
transmission
Provided
that if deemed receipt occurs before 9 am on a Business Day the notice shall be
deemed to have been received at 9 am on that day, and if receipt occurs after 5
pm on a Business Day, or on a day which is not a Business Day, the notice shall
be deemed to have been received at 9 am on the next Business Day.
12.2
Addresses and fax numbers of the Parties are:
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a)
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In
the case of the Lender:
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i)
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Attn:
Mohan
▇▇▇ ▇▇▇▇▇▇▇
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Address:
▇▇, ▇▇▇▇▇▇ ▇▇▇▇ #▇▇-▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇
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Fax:
▇▇▇ ▇▇▇▇ ▇▇▇▇
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Email:
▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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and
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ii)
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Attn:
▇▇▇▇▇
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Address:
Wind Fields
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Fax:
▇▇▇
▇▇▇ ▇▇▇▇
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Email:
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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12
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b)
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In
the case of the Borrower:
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Attn:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Address:
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ #▇▇-▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Fax:
▇▇▇ ▇▇▇▇ ▇▇▇▇
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Email:
aharrison@astratagroup_com
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or such
other address or facsimile number as may be notified in writing from time to
time by the relevant Party to the other Party.
12.3 Each
Party may change its address from time to time, provided notice of such change
of address is provided to the other Party in accordance with this
Clause.
13. Assignment
13.1 This
Agreement shall benefit and be binding on the Parties, their permitted assignees
and their respective successors.
13.2 The
Borrower may not assign or transfer any of its rights or obligations under the
Transaction Documents.
13.3 The
Lender may assign all or part of its rights or transfer all or part of its
obligations under the Transaction Documents without the consent of the Borrower.
The assignee or transferee shall be and be treated as a party for all purposes
of the Transaction Documents and be entitled to the full benefit of the
Transaction Documents as it if were an original party in respect of the rights
and obligations assigned or transferred to it.
13
14. Partial
Invalidity
If at any
time, any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any respect under the laws of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions of this
Agreement nor of such provisions under the laws of any other jurisdiction shall
in any way be affected or impaired thereby.
15. Miscellaneous
15.1
Law
This
Agreement shall be governed by and construed in accordance with the laws of
Singapore.
15.2
Jurisdiction
In
relation to any legal action or proceedings arising out of or in connection with
this Agreement ("Proceedings"), each Party hereby irrevocably submits to the
exclusive jurisdiction of the courts of Singapore and waives any objection to
Proceedings on the ground of venue or on the ground that the Proceedings have
been brought in an inconvenient forum.
15.3
Costs
All costs
and charges (including legal expenses) of the Lender incurred in connection with
this Agreement and the Transaction Documents and all administration costs and
charges of the Lender shall be on the account of and paid by the
Borrower.
15.4
Time is of Essence
Time is
of the essence of this Agreement but no failure to exercise and no delay in
exercising. on the part of the Lender, any right, power, or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right,
power or privilege preclude any other or further exercise thereof, or the
exercise of any other power of right. The rights and remedies herein provided
are cumulative and not exclusive of any rights or remedies provided by
law.
15.5
Counterparts
This
Agreement may be signed in any number of counterparts, all of which taken
together when delivered to the Lender shall constitute one and the same
instrument. Any party may enter into this Agreement by signing any such
counterpart.
(This
space is intentionally left blank)
14
Schedule
1
Corporate
Structure of Astrata Group Inc.
|
Astrata
(Europe) Ltd
100%
|
Astrata
(Asia Pacific)
Pte
Ltd
100%
|
Passtime
Telematics Inc.
51%
|
|
Astrata
(Singapore)
Pte
Ltd
100%
|
Astrata
(Malaysia)
Sdn
Bhd
100%
|
Astrata
(Brunei)
Sdn
Bhd
70%
|
Astrata
(New
Zealand)
Ltd
49%
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Astrata
(Middle
East)
LLC
49%
|
15
Schedule
2
Representations,
Warranties and Covenants
1. Borrower's
Representations, Warranties & Covenants
The
Borrower hereby represents, warrants and covenants the following to the
Lender:
1.1 Capital
Expenditure:
that save
with the written consent of the Lender, the Borrower will not enter into any
agreement or incur any commitment involving any capital expenditure in excess of
US$250,000.00 in the aggregate;
1.2 Contracts
& Commitments:
that save
with the written consent of the Lender, the Borrower will not enter into or
amend any contract or incur any commitment which is not capable of being
terminated without compensation at any time with three months' notice or less
and which is not in the ordinary and usual course of business and which involves
or may involve total annual expenditure in excess of US$250,000.00 in each
case:
1.3 Borrowings:
that save
with the written consent of the Lender, the Borrower will not incur any
borrowings or any other indebtedness in excess of US$250.000 00 in the
aggregate;
1.4 Senior
Employees:
that the
Borrower will not, save as required by law or with the written consent of the
lender, make any amendment to the terms and conditions of employment (including,
without limitation, remuneration, pension entitlements and other benefits) of
Senior Employees, or provide or agree to provide any gratuitous payment or
benefit to any such person or any of their dependants, or dismiss any such
employee or engage or appoint any additional Senior Employees;
16
1.5 Increase,
Decrease or Repurchase of Capital:
that the
Borrower will not allot, issue, redeem or repurchase any share or loan capital
(or grant options to subscribe for the same);
1.6 Disclosure
of Information:
that the
information contained in this Agreement and all other information which has been
or will be given in writing by the Borrower to the Lender, to the best of the
knowledge, information and belief of the Borrower was and will be when given,
(and remains if given prior to the date of this Agreement), true, complete and
accurate in all respects and not misleading and the Borrower is not aware of any
fact or matter or circumstances not disclosed in writing to the Lender which
renders any such information untrue, inaccurate or misleading or the disclosure
of which might reasonably affect the willingness of the Lender to grant the
Facility to the Borrower or impair the Facility;
1.7 Accounts:
that
copies of the audited and management accounts of the Borrower and the
constitutional documents of the Borrower that have been/are to be delivered or
made available to the Lender under this Agreement are/shall be complete and
are/shall be accurate in all respects and in the case of the constitutional
documents contain full details of the rights and restrictions attached to the
share capital of the Borrower;
17
1.8 Shareholders
Agreements:
that
there is no shareholders' agreement or other agreement executed by the Borrower,
the terms of which supersede or prevail over the provisions of the
constitutional documents of the Borrower:
1.9 Power
of Attorney:
that the
Borrower has not given any power of attorney or any other authority (express,
implied or ostensible) which is still outstanding or effective, to any person to
enter into any contract or commitment or do anything on its behalf and shall not
hereafter give any such power of attorney or such authority;
1.10 Granting
of Securities, etc:
that
there shall be no indebtedness (actual or contingent) or any indemnity,
guarantee or security arrangement between the Borrower and any current or former
employee, current or former director or any current or former consultant of the
Borrower or any Connected Person of any of such persons as of this
date;
1.11 Contracts
to Connected Person:
that save
as disclosed in the audited and management accounts, the Borrower has not been a
party to any contract, arrangement or understanding (i) with any current or
former employee, any current or former director or any current or former
consultant of the Borrower or any Connected Person of any such person, or (ii)
in which any current or former employee, any current or former director or any
current or former consultant of the Borrower or any Connected Person of any of
such persons is interested (whether directly or indirectly);
18
1.12 Extraordinary
Contracts & Commitments:
that the
Borrower has not been a party to any contract, commitment, arrangement,
transaction, understanding, obligation or liability which:
(i) is
outside the ordinary and usual course of business;
(ii) is
not wholly on an arm's length basis;
(iii) save
in the ordinary course of business is of a long-term nature (that is, unlikely
to have been fully performed in accordance with its terms more than six months
after the date it was entered into or undertaken or incapable of termination on
six months' notice or less);
(iv) cannot
readily be fulfilled or performed on time without undue or unusual expenditure
of money or effort; or
(v) involves,
or is likely to involve, obligations or liabilities which by reason of their
nature or magnitude, ought reasonably to be made known to the
Lender.
1.13 Restrictive
Agreements or Joint Ventures
that save
as disclosed to the Lender, the Borrower:
(i) is
not or has not been a party to any agreement or arrangement which restricts its
freedom to carry on its business in any part of the world;
(ii) is
not, or has not agreed to become, a member of any joint venture, consortium,
partnership or other unincorporated association; or
(iii) is
not, or has not agreed to become, a party to any agreement or arrangement for
participating with others in any business sharing commissions or other
income.
19
1.14 Assets
that all
assets (other than the Intellectual Property) of the Borrower, including all
debts due to the Borrower which are included in the audited and management
accounts or have otherwise been represented as being the property of or due to
the Debtors or at the balance sheet date used or held for the purposes of its
business, were at the balance sheet date the absolute property of the Borrower
and (save for those subsequently disposed of or realized in the ordinary and
usual course of business) all such assets and all assets and debts which have
subsequently been acquired or arisen are the absolute property of the Borrower
and none is the subject of any assignment or Encumbrance (excepting only liens
arising by operation of law in the normal course of trading) or the subject of
any factoring arrangement, hire purchase. conditional sale or credit sale
agreement to which the Borrower is a party;
1.15 Stocks
that the
stock (if any) currently held is not excessive but is adequate in relation to
the current trading requirements of the Borrower, is in good. undamaged and
merchantable condition, is not obsolete, slow-moving or inappropriate and is
capable of being sold in the ordinary and usual course of business in accordance
with its current price list, without rebate or allowance to a purchaser (or to
the extent that this is not the case, adequate provision or reserve has been
made therefor in the audited and management accounts of the
Borrower);
1.16 Plant
& Machinery:
that the
plant, machinery, vehicles and all other equipment owned or used in connection
with the business of the Borrower.
(i) are
(subject to normal wear and tear) in good repair and condition and reasonable
working order having regard to their age and use:
20
(ii) have
been regularly and properly maintained where such maintenance is usually
required;
(iii) are
not dangerous, obsolete, inefficient or surplus to requirements and are in the
possession and control the Borrower and are not expected to require replacements
or additions at a cost in excess of US$100,000.00 within 12 months after the
date of this Agreement; and
(iv) are
capable and will (subject to normal wear and tear) remain capable throughout the
respective periods of time during which they are written down to a nil value in
the accounts of the Borrower of doing the work for which it was designed or
purchased.
1.17 Maintenance
Contracts
that the
maintenance contracts are in full force and effect in respect of all assets of
the Borrower which are normal or prudent to have maintained by independent or
specialist contractors and in respect of all assets which the Borrower is
obliged to maintain or repair under any agreement; and all such assets have been
maintained regularly to a good technical standard and in accordance with safety
regulations usually observed in relation thereto and in accordance with the
terms of any leasing or other agreement; and
1.18 Proprietary
information:
that the
following proprietary information are true and accurate at the date of this
Agreement:
(i) Definitions
For the
purposes of this paragraph 1.18:
"Business Information" means
all information, Know-how and records (whether or not confidential and in
whatever form held) including, without limitation, all formulae, designs,
specifications. drawings, data, manuals and instructions and all client lists,
sales information business plans and forecasts, and all technical or other
expertise and all computer software and all accounting and tax records,
correspondence, orders and inquiries;
21
"Business IP" means all rights
and interest owned by the Borrower (whether as owner, licensee or otherwise) in
Intellectual Property which is at or immediately before the date hereof used or
is capable of being used in or in connection with the business of the Borrower
including but not limited to the rights of the software and hardware more
particularly described in Schedule 3;
"Confidential Business
Information" means Business Information which is confidential and which
is not accessible to or within the domain of the public at large;
"Intellectual Property" means
trade marks, service marks, trade names, domain names, logos, get-up, patents,
inventions, registered and unregistered design rights, copyrights,
semi-conductor topography rights. database rights and all other similar rights
in any part of the world (including Know-how) where such rights are obtained or
enhanced by registration, any registration of such rights and applications and
rights to apply for such registrations; and
"Know-how" means confidential
and proprietary industrial and commercial information and techniques in any form
including, without limitation, drawings. formulae, test results, reports,
project reports and testing procedures, instruction and training manuals, tables
of operating conditions, market forecasts, and lists and particulars of
customers and suppliers.
(ii) Ownership
etc.
All
Intellectual Property (whether registered or not) and all pending applications
therefor which have been, are, or are capable of being used in or in relation to
or which are necessary for the business of the Borrower is (or, where
appropriate in the case of pending applications, will be):
(a) legally
and beneficially owned by the Borrower or lawfully used with the consent of the
owner under a licence;
22
(b) valid
and enforceable:
(c) not
being infringed or attacked or opposed by any person:
(d) not
subject to any Encumbrance or any licence or authority save as disclosed in the
audited and management account or as disclosed in writing to the
Lender;
(e) in
the case of rights in such Intellectual Property as are registered or the
subject of applications for registration. and all renewal fees which are due and
steps which are required for their maintenance and protection have been paid and
taken; and
(f) in
the case of unregistered trademarks which are likely to be material to the
Borrower, and no claims have been made an no applications are pending, which if
pursued or granted might be material to the truth and accuracy of any of the
above.
(iii) Intellectual
Property
(a) All
rights in all Intellectual Property and Business Information owned, used by or
otherwise required for the business of the Borrower are vested in or validly
granted to the Borrower and are not subject to any limit as to time or any other
limitation, right of termination or restriction and all renewal fees and steps
required for their maintenance or protection have been paid and
taken.
(b) All
rights in the Intellectual Property and all Business Information owned, used by
or otherwise required for the business of the Borrower is in the possession of
the Borrower and the Borrower is not a party to any confidentiality or other
agreement or subject to any duty which restricts the free use or disclosure of
any of such Business Information.
(c) The
Borrower has not granted or is obliged to grant any licence, sub-licence or
assignment in respect of any Intellectual Property owned, used by or otherwise
required for the business of the Borrower or has disclosed or is obliged to
disclose any Confidential Business Information required for the business of the
Borrower to any person, other than its employees or those of the Borrower for
the purposes of carrying on its business.
23
(d) The
Borrower nor any party with which the Borrower has contracted with is not in
breach of any licence, sub-licence or assignment granted to or by it in respect
of any Intellectual Property owned, used by or otherwise required for the
business of the Borrower or of any agreement under which any Business
Information was, or is to be made available to it.
(e) There
is no, nor has there been at any time any, unauthorized use or infringement by
any person of any of the Intellectual Property or Confidential Business
Information owned, used by or otherwise required for the business of the
Borrower.
(iv) Processes
etc.
The
processes employed, the businesses conducted by the Borrower and the products
and services dealt in by the Borrower both now and at any time within the last
six years do and did not use, embody or infringe any rights or interests of
third parties in Intellectual Property (other than those belonging to or
licensed to the) and no claims of infringement of any such rights or interests
have been made by any third party.
(v) Licences
Where
there are licences secured by the Borrower from third parties, such licences are
in full force and effect, no notice having been given on either side to
terminate them; the obligations of all parties have been fully complied with; no
disputes have arisen or are foreseeable in respect thereof: and where such
licences are of such a nature that they could be registered with the appropriate
authorities and where such registration would have the effect of strengthening
the Borrower's rights they have been so registered.
(vi) Know-how
There is
and has been no misuse of Know-how by the Borrower and the Borrower has made no
disclosure of Know-how to any person except properly and in the ordinary and
usual course of business and on the basis that such disclosure is to be treated
as being of a confidential character.
24
(vii) No
Assertion of Moral Rights
No moral
rights have been asserted or are likely to be asserted which would affect the
use of any of the Intellectual Property in the business of the
Borrower.
(viii) Patents
All
patentable inventions made by employees of the Borrower and used or intended to
be used in the business of the Borrower were made in the normal course of the
duties of the employees concerned and there are no outstanding or potential
claims against the Borrower under any contract or law providing for employee
compensation or ownership in respect of any rights or interests in Intellectual
Property.
(ix) Sufficiency
of Business IP
The
Business IP comprises all the rights and interests in Intellectual Property
necessary or convenient for the carrying on of the business of the Borrower in
and to the extent which it is presently conducted.
2. Subsidiaries
The
Borrower hereby represents, warrants and covenants to cause its subsidiaries to
comply with and observe the representations, warranties and covenants in this
Schedule 2.
(This
space is intentionally left blank)
25
Schedule
3
Borrower's
Intellectual Property Rights
A. Software
& Firmware IP
|
1.
|
Scalable
high capacity system architecture.
|
|
2.
|
Fault
tolerant system redundancy mechanisms for enhanced
reliability.
|
|
3.
|
Backend
scalable Zone management element/mechanism.
|
|
4.
|
Intelligent
reverse-geo coding processing for enhanced scalability and data
flow.
|
|
5.
|
Selectable
immobilization methods (instant, gradual, deferred).
|
|
6
|
Over
the air upgradability for firmware. settings and
hardware.
|
|
7.
|
Flexible
Zone event management means (device & backend, backend only, device
only).
|
|
8.
|
Accelerometer
self calibration algorithm for improved accuracy and installation
flexibility. Settable via PDA or OTA.
|
|
9.
|
Adaptive
3-axis accelerometer incline detection and recalibration for improved
accuracy.
|
|
10.
|
Speed
limiter algorithm using loosely coupled inertial navigation system with
adaptive speed limiting settings.
|
|
11.
|
RFID
based Mesh Network system using Neural Network
Concepts.
|
|
12.
|
E-Clamp
mechanism for public traffic enforcement.
|
|
13.
|
RFID
based Public Access Control system.
|
|
14.
|
RF
Collision avoidance system using RFID Beacon, GPS and estimation
algorithms for enhanced vehicle escort and VIP
protection.
|
|
15.
|
Comprehensive
device configuration and registration via Bluetooth or RS485 and PDA
means.
|
26
|
16.
|
Battery
level monitoring for internal and vehicle batteries with backend
communication reporting (levels, duration estimates, fault
events).
|
|
17.
|
Enhanced
battery management means.
|
|
18.
|
Enhanced
theft and fault recognition. Reporting to backend with autonomous vehicle
immobilization option.
|
|
19.
|
Audio
interface means using RS232 or RS485.
|
|
20.
|
Driver
performance data/ management system for improved fleet resource and asset
management.
|
B. Hardware/Device
IP
|
1.
|
Input/Output
device with onboard immobilization and speed limiter.
|
|
2.
|
433MHz
RF Beacon device for collision avoidance.
|
|
3.
|
E-Frame
license plate mechanism for holding track and trace
devices.
|
|
4
|
IP67
compliant Advanced Track 8 Trace device with 3-axis accelerometer.
RS232/485, 96OVdc, external i/o module, internal battery modular GPS. GSM
and RFID transceivers.
|
|
5.
|
Motion
detector with deep sleep state for enhanced battery
life.
|
|
6.
|
Inertial
Navigation System with Trailer ID.
|
|
7.
|
Tamper
detection module for improved cable interconnect
security.
|
|
8.
|
Remotely
Deployable Unit system for as-required track and trace
applications.
|
|
9.
|
Container
tracking and management system for land transportation
applications.
|
|
10.
|
Tag
based Driver ID system for authentication and driver
management.
|
27
IN
WITNESS WHEREOF, the Parties have executed and delivered this Agreement on the
day and year first above written.
The
Lender
|
Signed
by Mohan ▇▇▇ ▇▇▇▇▇▇▇
|
)
|
|
|
Director,
for and on behalf of
|
)
|
/s/
Mohan ▇▇▇ ▇▇▇▇▇▇▇
|
|
FAME
TRADING LTD.
|
)
|
|
|
in
the presence of:
|
/s/
Signature
▇▇▇▇▇
▇▇▇▇▇ Krishnaray
▇▇▇▇▇▇▇
Advocates/
Solicitors
The
Borrower
|
Signed
by
|
)
|
|
|
for
and on behalf of
|
)
|
/s/
▇. ▇. ▇▇▇▇▇▇▇▇
|
|
ASTRATA
(ASIA PACIFIC)
PTE,
LTD.
|
)
|
|
|
in
the presence of:
|
/s/ Choo
Bee Eng
28