This
Deed is made on 8 November 2006 between:
(1) Marvell
International Ltd., a Bermuda exempted company incorporated and existing
under the laws of Bermuda with registration number EC29736 (the “Chargor”); and
(2) Credit
Suisse, Cayman Islands Branch (the “Administrative Agent”),
as trustee for the benefit of, the Secured Parties (as defined in the Credit
Agreement defined below).
Whereas:
(A) Pursuant to a Credit Agreement (the “Credit Agreement”,
which term includes any amendment, amendment and restatement, supplement or
modification thereof) dated as of November 8, 2006, made among (1) Marvell
Technology Group Ltd (the “Borrower”),
as borrower, (2) the lenders from time to time party thereto (the “Lenders”), as lenders, and (3) the Administrative Agent, the
Borrower intends to borrow funds for the purposes set forth therein.
(B) Pursuant to a Guarantee Agreement (the “Guarantee Agreement”, which term includes
any amendment, amendment and restatement, supplement or modification thereof)
dated as of November 8, 2006 made among (1) the Borrower, as borrower, (2) the
subsidiaries of the Borrower listed on the signature pages of the Guarantee
Agreement (including the Chargor) (the “Guarantors”),
as guarantors and (3) the Administrative Agent, the Guarantors agree to
guarantee the obligations of the Borrower under (a) the Credit Agreement and
(b) certain Hedging Agreements (as defined in the Credit Agreement).
(C) The Guarantee Agreement provides that the Lenders are
not willing to make loans under the Credit Agreement unless the guarantee of
the Chargor, as a Guarantor under the Guarantee Agreement, is secured by Liens
(as defined in the Credit Agreement) on the assets of the Chargor.
(D) The Chargor has agreed to enter into this Deed and to
create, upon the terms and conditions of this Deed, the security interest
expressed to be created by this Deed over the Charged Assets (as defined below)
as a continuing security interest to secure its Transaction Guarantee (as
defined in the Credit Agreement).
It is
agreed as follows:
1. Definitions
and Interpretation
1.1 Definitions
In this Deed, unless a contrary indication appears, and except to the
extent that the content requires otherwise, terms used in the Credit Agreement
have the same meaning and construction and, in addition:
“Act” means the Conveyancing and Law of
Property Act, Chapter 61 of Singapore.
“Authorisation” means an authorisation,
consent, approval, resolution, licence, exemption, filing, notarisation or
registration.
“Charged Assets” means the assets from
time to time subject, or expressed to be subject, to the Charges or any part of
those assets.
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“Charges” means all or any of the
Security created or expressed to be created by or pursuant to this Deed.
“Collateral” mean all property, whether
now owned or hereafter acquired, on which a Lien is granted or purports to be
granted to the Administrative Agent pursuant to the Security Documents and when
used with respect to the Chargor, “Collateral”
means all its assets on which such a Lien is granted or purports to be granted
by the Chargor
“Company” means Marvell Asia Pte Ltd, a
company incorporated in Singapore with company registration number 199702379M,
having its registered office at 151 Lorong Chuan #02-05 New Tech Park,
Singapore 556741.
“Contingent Secured Obligation” means,
at any time, any Secured Obligation (or portion thereof) that is contingent in
nature at such time, including any Secured Obligation that is:
(a) an
obligation under a Hedging Agreement to make payments that cannot be quantified
at such time;
(b) any
other obligation (including any guarantee) that is contingent in nature at such
time; or
(c) an
obligation to provide collateral to secure any of the foregoing types of
obligations.
“Currency of Account” means the currency
in which the relevant indebtedness is denominated or, if different, is payable.
“Delegate” means a delegate or
sub-delegate appointed under Clause 8.2 (Delegation).
“Dividends” means, in relation to any
Share, all present and future:
(a) dividends
and distributions of any kind and any other sum received or receivable in
respect of that Share;
(b) rights,
shares, money or other assets accruing or offered by way of redemption, bonus,
option or otherwise in respect of that Share;
(c) allotments,
offers and rights accruing or offered in respect of that Share; and
(d) other
rights and assets attaching to, deriving from or exercisable by virtue of the
ownership of, that Share.
“Party” means a party to this Deed.
“Permitted Liens” means (a) the
Transaction Liens and (b) any other Liens on the Collateral permitted to be
created or assumed or to exist pursuant to Section 6.02 of the Credit
Agreement.
“Post-Petition Interest” means any
interest that accrues after the commencement of any case, proceeding or other
action relating to the Winding-up, bankruptcy, insolvency or reorganisation of
any one or more of the Lien Grantors (or would accrue but for the operation of
applicable Winding-up, bankruptcy or insolvency laws), whether or not such
interest is allowed or allowable as a claim in any such proceeding.
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“Ratings Release Conditions” means the
following conditions for terminating all the Transaction Liens:
(a) the
Borrower shall have given notice to the Administrative Agent at least 15 days
prior to a date (the “Release Date”)
specifying such Release Date;
(b) as
of the Release Date, the corporate family rating of the Borrower shall be at
least Baa3 by Moody’s and the corporate rating of the Borrower shall be at
least BBB - by S&P, in each case with no negative outlook;
(c) as
of the Release Date, no Default shall have occurred and be continuing; and
(d) on
the Release Date, the Administrative Agent shall have received a certificate,
dated the Release Date and executed by the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower, confirming the
satisfaction of the preceding conditions.
“Secured Obligations” means (i) all principal of all Loans outstanding
from time to time under the Credit Agreement, all interest (including
Post-Petition Interest) on such Loans and all other amounts now or hereafter
payable by the Borrower pursuant to the Loan Documents and (ii) all obligations
of any Lien Grantor under any Hedging Agreement that is entered into with any
counterparty that is the Arranger, the Administrative Agent or a Lender or an
Affiliate of the Arranger, the Administrative Agent or a Lender, in each case
at the time such Hedging Agreement is entered into.
“Secured Parties” means
the holders from time to time of the Secured Obligations.
“Security” means a Lien or any mortgage,
charge, pledge, lien or other security interest securing any obligation of any
person or any other agreement or arrangement having a similar effect.
“Security Documents” means this Deed and
all other supplemental or additional charge documents or similar instruments
delivered with respect to the Charged Assets pursuant to the Credit Agreement.
“Shares” means:
(a) all
present and future shares in the Company, including the shares issued and
outstanding at the date of this Deed described in Schedule 2 (Shares); and
(b) all
warrants, options or other rights to subscribe for, purchase or otherwise
acquire those shares,
in each case now or in
the future owned by the Chargor or (to the extent of its interest) in which it
now or in the future has an interest.
“Transaction
Guarantee” means, with respect to the Chargor, its guarantee of the
Secured Obligations pursuant to the Guarantee Agreement.
“Transaction
Liens” means the Security granted by the Lien Grantors under the
Security Documents.
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“UCC”
means the Uniform Commercial Code as in effect from time to time in the State
of New York.
“Winding-up” means winding-up,
amalgamation, reconstruction, administration, judicial management, dissolution,
liquidation, merger or consolidation or any analogous procedure or step in any
jurisdiction.
1.2 Construction
1.2.1 Unless a
contrary indication appears, any reference in this Deed to:
(i) “assets” includes present and future
properties, revenues and rights of every description;
(ii) the
“Administrative Agent”, the “Chargor”, any “Credit
Party”, any “Lien Grantor”,
any “Party” or any “Secured
Party” shall be construed so as to include its successors in title,
permitted assigns and permitted transferees;
(iii) a
“Loan Document” or any other agreement
or instrument is to a reference to that Loan Document or other agreement or
instrument as amended or novated;
(iv) “indebtedness” includes any obligation
(whether incurred as principal or as surety) for the payment or repayment of
money, whether present or future, actual or contingent;
(v) a
“person” includes any person,
firm, company, corporation, government, state or agency of a state or any
association, trust or partnership (whether or not having separate legal
personality) or two or more of the foregoing;
(vi) a
“regulation” includes any
regulation, rule, official directive, request or guideline (whether or not
having the force of law) of any governmental, intergovernmental or
supranational body, agency, department or regulatory, self-regulatory or other
authority or organisation; and
(vii) a
provision of law is a reference to that provision as amended or re-enacted.
1.2.2 Clause
and Schedule headings are for ease of reference only.
1.2.3 An Event
of Default is “continuing” if it
has not been remedied or waived.
1.3 Third
party rights
1.3.1 Unless
expressly provided to the contrary, a person who is not a Party (other than a
Secured Party) has no right under the Contracts (Rights of Third Parties) Act,
Chapter 53B of Singapore to enforce or to enjoy the benefit of any term of this
Deed.
1.3.2 Notwithstanding
any terms of this Deed, the consent of any third party (other than a Secured
Party) is not required for any variation (including any release or compromise
of any liability under) or termination of this Deed.
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2. Security
The Chargor, as beneficial owner and as continuing security for its
Transaction Guarantee and for the due and punctual payment and discharge of all
the Secured Obligations guaranteed by the Chargor under its Transaction
Guarantee, charges in favour of the Administrative Agent (as trustee for the
benefit of the Secured Parties) by way of first fixed charge all of the Chargor’s
present and future Shares and Dividends.
3. Restrictions
and Further Assurance
3.1 Security
The Chargor shall not create or permit to subsist any Security (other
than Transaction Liens) over any of its assets except for the Charges and the
Permitted Liens, nor do anything else prohibited by or under the terms of the
Credit Agreement, the Guarantee Agreement, the US Pledge Agreement or the
Bermuda Pledge Agreement.
3.2 Disposal
The Chargor shall not (nor shall it agree to) enter into a single
transaction or a series of transactions (whether related or not and whether
voluntary or involuntary) to sell, lease, transfer or otherwise dispose of any
Charged Asset except, in the case of Dividends, as permitted by Clause 4.5 (Dividends prior to an Event of Default).
3.3 Further
assurance
The Chargor shall promptly do whatever the Administrative Agent
reasonably requests:
3.3.1 to
perfect or protect the Charges or the priority of the Charges; or
3.3.2 to
facilitate the realisation of the Charged Assets or the exercise of any rights
vested in the Administrative Agent or any Delegate,
including, without limitation, executing any transfer, charge,
mortgage, assignment or assurance of the Charged Assets (whether to the
Administrative Agent or its nominees or otherwise), making any registration and
giving any notice, order or direction.
3.4 Bermuda
filing
The Chargor will promptly after the execution of this Deed, cause to be
filed, in Bermuda, a Form 9 with the Registrar of Companies of Bermuda in
substantially the form attached hereto as Schedule 3 (Form 9).
4. Charged
Assets
4.1 Acquisition
The Chargor shall, as soon as practicable, notify the Administrative
Agent of its acquisition of, or agreement to acquire, any Shares.
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4.2 Documents
The Chargor shall, on the date of this Deed and, where
Shares are acquired by it after the date of this Deed, on the date of such
acquisition:
4.2.1 deposit
with the Administrative Agent, or as it directs, all certificates representing
the Shares; and
4.2.2 execute
and/or deliver to the Administrative Agent such other documents relating to the
Shares, including stamped transfers of Shares executed in blank, as the
Administrative Agent requires.
4.3 Voting
prior to an Event of Default
At any time before an Event of Default shall have occurred and be
continuing, and the Administrative Agent shall have notified the Chargor of its
intent to exercise its rights under this Deed, the Chargor shall be entitled to
exercise or direct the exercise of the voting and other rights attached to any
Share as it sees fit provided that:
4.3.1 it does
so for a purpose not inconsistent with any Loan Document; and
4.3.2 the
exercise of or failure to exercise those rights would not have an adverse
effect on the value of the relevant Shares or the Charged Assets and would not
otherwise prejudice the interests of any Secured Party under any Loan Document.
4.4 Voting
after an Event of Default
At any time after an Event of Default shall have occurred and be
continuing, and the Administrative Agent shall have notified the Chargor of its
intent to exercise its rights under this Deed:
4.4.1 the
Administrative Agent shall be entitled to exercise or direct the exercise of
the voting and other rights attached to any Share as it sees fit; and
4.4.2 the
Chargor shall comply or procure the compliance with any directions of the
Administrative Agent in respect of the exercise of those rights and shall
promptly execute and/or deliver to the Administrative Agent such forms of proxy
as it requires with a view to enabling such person as it selects to exercise
those rights.
4.5 Dividends prior to an Event of Default
At any time before an Event of Default shall have occurred and be
continuing, and the Administrative Agent shall have notified the Chargor of its
intent to exercise its rights under this Deed, the Chargor is entitled to
receive, retain and use any Dividends or any other distribution.
4.6 Dividends
after an Event of Default
At any time after an Event of Default shall have occurred and be
continuing, and the Administrative Agent shall have notified the Chargor of its
intent to exercise its rights under this Deed, the Administrative Agent shall
have the right to receive and retain all Dividends and the Chargor shall take
all such action as the Administrative Agent may deem necessary or appropriate
to give effect to such right and if any Dividend or other distribution is
received by
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the Chargor at such time, the Chargor shall hold such Dividend or other
distribution received by it on trust for the benefit of the Administrative
Agent and the Secured Parties and, if the Administrative Agent so directs,
shall forthwith upon demand by the Administrative Agent pay the same over to
the Administrative Agent or as it may direct, provided that after all Events of
Default have been remedied, the Administrative Agent’s right to retain any such
Dividend or other distribution shall cease and the Administrative Agent shall
pay over to the Chargor, without interest, any such Dividends or other
distributions that the Chargor would otherwise be permitted to receive, retain
and use pursuant to Clause 4.5 (Dividends prior to an
Event of Default).
5. General
Undertakings
5.1 Authorisations
The Chargor shall promptly obtain, comply with and maintain in full
force and effect, any Authorisation required to enable it to perform its
obligations under this Deed and to ensure the legality, validity,
enforceability or admissibility in evidence in its jurisdiction of
incorporation and any other relevant jurisdiction of this Deed.
5.2 Compliance
with laws
The Chargor shall comply
in all respects with all laws to which it may be subject, if failure so to
comply would have a material adverse effect on the validity, enforceability or
priority of the Security created by this Deed.
5.3 Depreciation
of Charged Assets
The Chargor shall not do or cause or permit to be done anything which
may in any way depreciate, jeopardise or otherwise prejudice the value of the
Charged Assets.
5.4 No
prejudicial conduct
The Chargor shall not do, or permit to be done, anything which could
prejudice the Charges.
5.5 Discharge other debts
The Chargor shall punctually pay and discharge all debts and
obligations which by law have priority over the Charges.
5.6 Transfers
The Chargor shall at the request of the
Administrative Agent, at any time after an Event of Default shall have occurred
and be continuing, procure the passing, by the board of directors of the
Company of a resolution, in terms approved by the Administrative Agent,
approving the registration of the transfers of all of the Charged Assets, or
any Charged Assets specified in the relevant request, to the Administrative
Agent or, as the Administrative Agent may direct, any third party.
5.7 Memorandum
and Articles of Association
The Chargor will (unless it has already done so) cause the
Articles of Association of the Company to be amended in the manner requested by
the Administrative Agent for the purpose of ensuring:
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5.7.1 that the
directors of the Company shall not decline to register, or suspend the
registration of, any transfer of any Shares where such transfer is executed
(whether as transferor or transferee) by any bank or financial institution
holding any Security over such Shares, or by any nominee of such bank or
financial institution;
5.7.2 that any
bank or other institution (including any agent or trustee on behalf of such
bank or other institution) holding any Security over any Shares have been
charged by way of security from time to time, shall have a first fixed charge
over such Shares, ranking in priority over any lien expressed to be created
under the Articles of Association of the Company (which shall in all respects
be subject to such first fixed charge) whether the period for the payment,
fulfilment or discharge of the relevant secured debt shall have actually
arrived or not, and, regardless of when such charge and such Security was
created;
5.7.3 that any bank or other institution (including any
agent or trustee on behalf of such bank or other institution) holding any
Security over any Shares, shall not be required to provide any other evidence
to prove its title to those Shares apart from the certificates of the Shares,
but shall not, unless the Administrative
Agent shall otherwise have given its prior consent in writing, cause, procure
or allow any other amendments or variations to be made to the Memorandum of
Association or Articles of Association of the Company which may have the effect
of superseding, revoking or otherwise negating the abovementioned amendments.
5.8 Change
of name or corporate structure
5.8.1 The
Chargor shall not:
(i) change
its name or corporate structure;
(ii) change
its location (determined as provided in UCC Section 9-307); or
(iii) become
bound, as provided in UCC Section 9-203(d), by a security agreement
entered into by another Person as lien grantor,
unless it shall have given the Administrative
Agent prior notice thereof and delivered a certificate of a Financial Officer
with respect thereto in accordance with Clause 5.8.2.
5.8.2 At least
30 days before it takes any action contemplated by Clause 5.8.1, the Chargor
will, at the Borrower’s expense, cause to be delivered to the Administrative
Agent a certificate of a Financial Officer, in form and substance reasonably
satisfactory to the Administrative Agent, to the effect that:
(i) all
financing statements and amendments or supplements thereto, continuation
statements and other documents required to be filed or recorded in order to
perfect and protect the Transaction Liens against all creditors of and
purchasers from the Chargor after it takes such action (except any continuation
statements specified in such certificate that are to be filed more than six
months after the date thereof) have been filed or recorded in each office
necessary for such purpose;
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(ii) all
fees and taxes, if any, payable in connection with such filings or recordations
have been paid in full; and
(iii) except
as otherwise agreed by the Required Lenders, such action will not adversely
affect the perfection or priority of the Charges on any of the Charged Assets
after it takes such action or the accuracy of the representations and warranties of the Chargor
set out in Clause 6 (Representations and
Warranties) relating to the Charged Assets.
6. Representations
and Warranties
The Chargor makes the representations and warranties set out in this
Clause 6 to the Administrative Agent on the date of this Deed.
6.1 Binding
obligations
The obligations expressed to be assumed by it in this Deed are legal,
valid, binding and enforceable, subject to:
6.1.1 any
general principles of law limiting its obligations or the enforceability of the
Security expressed to be created by this Deed which are specifically referred
to in any legal opinion delivered pursuant to a Loan Document; or
6.1.2 the
requirements specified at the end of Clause 6.2 (Validity and admissibility in evidence).
6.2 Validity
and admissibility in evidence
All Authorisations required or desirable:
6.2.1 to enable
it lawfully to enter into, exercise its rights and comply with its obligations
in this Deed and the transactions contemplated by it;
6.2.2 to make
this Deed admissible in evidence in its jurisdiction of incorporation and other
relevant jurisdictions; and
6.2.3 to
enable it to create the Charges and to ensure that the Charges have and will
have the priority and ranking which they are expressed to have,
have been obtained or effected and are in
full force and effect, save for the payment
of stamp duty up to a maximum amount of S$500 payable in Singapore in respect
of the stamping of this Deed.
6.3 No
filing or stamp Taxes
Except for the requirements specified at the end of Clause 6.2 (Validity and admissibility in evidence) it
is not necessary, under the laws of its jurisdiction of incorporation that this
Deed be filed, recorded or enrolled with any court or other authority in that
jurisdiction or that any stamp, registration or similar Tax be paid on or in
relation to this Deed or the transactions contemplated by this Deed.
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6.4 Ranking
Subject to any applicable reservations in
legal opinions delivered pursuant to any Loan Document and the requirements
specified at the end of Clause 6.2 (Validity
and admissibility in evidence), this Deed creates in favour of the
Administrative Agent the Security which it is expressed to create, with the
ranking and priority it is expressed to have.
6.5 Title
It has good and valid title in all respects to the assets which are
expressed to be subject to the Security created by or pursuant to this Deed,
free from all Security except for the Charges.
6.6 Winding-up
Except as permitted pursuant to the Credit Agreement, no meeting has
been convened, order made or resolution passed for its Winding-up, 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.
6.7 Shares
fully paid etc
The Shares (described in Schedule 2 (Shares))
are duly authorised, validly issued and non-assessable and are (or will be when
the Memorandum and Articles of Association of the Company have been amended
pursuant to Clause 5.7 (Memorandum and Articles of
Association)) freely transferable in accordance with the terms of
the Articles of Association of the Company. There are no moneys or liabilities
outstanding or payable in respect of any of the Shares.
6.8 Share
capital
The Shares constitute all the share capital in the Company and no
person has or is entitled to any conditional or unconditional option, warrant
or other right to subscribe for, purchase or otherwise acquire any issued or
unissued Shares, or any interest in Shares, in the capital of the Company.
6.9 Form
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6.9.1 This Deed
creates in favour of the Secured Parties a valid security interest in the Shares,
securing the Secured Obligations and other obligations secured under Clause
2. Upon the filing of a Form 9 with the
Registrar of Companies of Bermuda, which will be made promptly following the
execution of this Deed, the security interest in the Shares will constitute a
security interest in favour of the Secured Parties enforceable against third
parties (including creditors of, and any liquidator or administrator appointed
with respect to, the Chargor or the Borrower) prior to all Liens and rights of
others therein, except for statutorily preferred claims under the laws of the
Bermuda (“Statutory Claims”),
including without limitation claims in respect of Taxes, assessments or
impositions, certain wages or salaries. No Statutory Claims against the Chargor
or the Company exist as of the date hereof.
6.9.2 Other
than the filing of Form 9 with the Registrar of Companies of Bermuda, which
will be made promptly following the execution of this Deed, no authorisation or
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approval or
other action by, and no notice to or filing with, any Governmental Authority or
regulatory body or any other third party is required for (i) the grant by the
Chargor of the security interest granted hereunder or for the execution,
delivery or performance of this Deed by the Chargor, or (ii) the maintenance or
effectiveness of the security interest created hereunder (including the first
priority nature of the Secured Parties’ security interest or its enforceability
against third parties). Except as
provided in Clause 6.2 and paragraph 6.9.1 above, no authorisation or approval
or other action by, and no notice to or filing with, any Governmental Authority
or regulatory body or any other third party is required for the exercise by the
Secured Parties of their rights provided for in this Deed or the remedies in
respect of the Shares pursuant to this Deed.
7. Enforcement
7.1 When
enforceable
The Charges shall be enforceable, and the power of sale and other
powers conferred by Section 24 of the Act as varied and extended by this Deed
shall be exercisable, if an Event of Default shall have occurred and be
continuing.
7.2 Power
of sale
The statutory power of sale, of appointing a receiver and the other
statutory powers conferred on mortgagees by the Act as varied and extended by
this Deed shall arise on the date of this Deed and may be exercised by the
Administrative Agent free from the restrictions imposed by Section 25 of the
Act, provided that if any of the Charged Assets are to be sold pursuant to the
exercise of such statutory power of sale then, to the extent that reasonable
notice of such sale is required by any applicable law, ten days’ notice (which
shall be deemed to be reasonable notice) of such sale shall be given to the
Chargor (but nothing in this Clause 7.2 confers any right on the Administrative
Agent to take any action before an Event of Default shall have occurred and be
continuing which it would not have had in the absence of this Clause 7.2).
7.3 Consolidation
Section 21 of the Act shall not apply to this Deed.
8. Administrative
Agent’s Rights
8.1 Rights
of Administrative Agent
At any time after an Event of Default shall have occurred and be
continuing (whether or not the Administrative Agent shall have taken possession
of the Charged Assets), the Administrative Agent shall have the rights set out
in Schedule 1 (Rights of Administrative Agent).
8.2 Delegation
The Administrative Agent may delegate in any manner to any person any
rights exercisable by the Administrative Agent under any Loan Document. Any
such delegation may be made
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upon such terms and conditions (including power to sub-delegate) as the
Administrative Agent thinks fit.
9. Order
of Distributions
9.1 Application
of proceeds
If an Event of Default shall have occurred and be continuing and the
Administrative Agent shall have notified the Chargor of its intent to exercise
its rights under the Security Documents, the Administrative Agent or any
Delegate in exercise of its rights under this Deed may, subject to the rights
of any creditors having priority, apply (a) any cash held by it and (b) the
proceeds of any sale or other disposition of all or any part of the Charged
Assets or any enforcement of its rights under this Deed in the order provided
in Clause 9.2 (Order of distributions).
9.2 Order
of distributions
The order referred to in Clause 9.1 (Application
of proceeds) is:
9.2.1 in or
towards the payment of all expenses of and incidental to such sale or other
disposition (including, reasonable compensation to any Delegate, agent of and
counsel for the Administrative Agent and all costs, losses, expenses,
liabilities, and advances incurred or made by the Administrative Agent in
connection with this Deed and the other Loan Documents) and any other amounts
then due and payable to the Administrative Agent pursuant to Section 9.03 of
the Credit Agreement;
9.2.2 in or
towards (i) payment of the unpaid principal of the Secured Obligations rateably
and (ii) rateable provision for the payment of the Contingent Secured
Obligations, until payment in full of the principal of all Secured Obligations
shall have been made and provided for;
9.2.3 in or
towards payment rateably of all interest (including Post-Petition Interest) on
the Secured Obligations payable under the Credit Agreement, until payment in
full of all such interest and fees shall have been made;
9.2.4 in or
towards (i) payment of all other Secured Obligations rateably and (ii) rateable
provision for the payment of all other Contingent Secured Obligations, until
payment in full of all such other Secured Obligations and other Contingent
Secured Obligations shall have been made (or so provided for); and
9.2.5 in
payment of any surplus to the Chargor or other person entitled to it,
provided that Collateral owned by the Chargor
and any proceeds thereof shall be applied pursuant to Clauses 9.2.1, 9.2.2,
9.2.3 and 9.2.4 only to the extent permitted by the limitation in Section 2(i)
of the Guarantee Agreement (which provides that the obligations of the Chargor
under its Transaction Guarantee shall be limited to an aggregate amount equal
to the largest amount that would not render such Transaction Guarantee subject
to avoidance under Section 548 of the United States Bankruptcy Code or any
comparable provisions of applicable law).
The Administrative Agent may make such distributions hereunder in cash
or in kind or, on a rateable basis, in any combination thereof.
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9.3 Contingent Secured Obligation
If, at any
time, any portion of any monies collected or received by the Administrative
Agent would, but for the provisions of this Clause 9.3, be payable pursuant to
Clause 9.2 in respect of a Contingent Secured Obligation, the Administrative
Agent shall not apply any monies to pay such Contingent Secured Obligation but
instead shall request the holder thereof, at least 10 days before each proposed
distribution hereunder, to notify the Administrative Agent as to the maximum
amount of such Contingent Secured Obligation if then ascertainable. If the holder of such Contingent Secured
Obligation does not notify the Administrative Agent of the maximum
ascertainable amount thereof at least two Business Days before such
distribution, such holder will not be entitled to share in such
distribution. If such holder does so
notify the Administrative Agent as to the maximum ascertainable amounts thereof,
the Administrative Agent will allocate to such holder a portion of the monies
to be distributed in such distribution, calculated as if such Contingent
Secured Obligation were outstanding in such maximum ascertainable amount.
10. Liability
of Administrative Agent and Delegates
10.1 Possession
If the Administrative Agent or any Delegate takes possession of the
Charged Assets, it or he may at any time relinquish possession.
10.2 Administrative
Agent’s liability
Neither the Administrative Agent nor any Delegate
shall (either by reason of taking possession of the Charged Assets or for any
other reason and whether as mortgagee in possession or otherwise) be liable to
the Chargor, any Secured Party or any other person for any costs, losses,
liabilities or expenses relating to the realisation of any Charged Assets or
from any act, default, omission or misconduct of the Administrative Agent, any
Delegate or their respective officers, employees or agents in relation to the
Charged Assets or in connection with the Loan Documents except to the extent
caused by its or his own gross negligence or wilful misconduct. Any third party
referred to in this Clause 10 may enjoy the benefit or enforce the terms of
this Clause 10 in accordance with the provisions of the Contracts (Rights of
Third Parties) Act, Chapter 53B of Singapore.
11. Power
of Attorney
11.1 Appointment
The Chargor by way of security irrevocably appoints the Administrative
Agent and every Delegate severally its attorney (with full power of
substitution), on its behalf and in its name or otherwise, at such time and in
such manner as the attorney thinks fit:
11.1.1 to do anything
which the Chargor is obliged to do (but has not done) under any Loan Document
to which it is a party (including to execute charges over, transfers,
conveyances, mortgages, assignments and assurances of, and other instruments,
notices, orders and directions relating to, the Charged Assets); and
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11.1.2 to exercise any
of the rights conferred on the Administrative Agent or any Delegate in relation
to the Charged Assets or under any Loan Document, the Act or under general law,
provided that the Administrative Agent shall not exercise any rights or
powers conferred on in this Clause 11.1 unless an Event of Default shall have
occurred and be continuing and the Administrative Agent shall have notified the
Chargor of its intent to exercise any right to sell or otherwise dispose of any
of the Charged Assets. The
Administrative Agent will give the Chargor at least ten days’ prior written
notice of the time and place of any public sale or the time at which any
private sale or other intended disposition thereof will be made.
11.2 Ratification
The Chargor ratifies and confirms and agrees to ratify and confirm
whatever any such attorney shall do in the exercise or purported exercise of
the power of attorney granted by it in Clause 11.1 (Appointment). Any attorney referred to in this Clause 11
which is not a party to this Deed may enjoy the benefit or enforce the terms of
this Clause 11 in accordance with the provisions of the Contracts (Rights of
Third Parties) Act, Chapter 53B of Singapore.
12. Protection
of Third Parties
12.1 No
duty to enquire
No purchaser or other person dealing with the Administrative Agent, any
other Secured Party or any Delegate shall be concerned to enquire:
12.1.1 whether the
rights conferred by or pursuant to any Loan Document are exercisable;
12.1.2 whether any
consents, regulations, restrictions or directions relating to such rights have
been obtained or complied with;
12.1.3 otherwise as to
the propriety or regularity of acts purporting or intended to be in exercise of
any such rights; or
12.1.4 as to the
application of any money borrowed or raised.
12.2 Protection
to purchasers
Upon any sale or disposal of the Charged Assets or any part thereof
which the Administrative Agent shall make or purport to make under the
provisions of this Deed, a statement in writing from the Administrative Agent
that the Charges have become enforceable and that the power of sale has become
exercisable shall be conclusive evidence of the fact in favour of any purchaser
or other person to whom any of the Charged Assets may be transferred and such
purchaser or other person will take the same free of any rights of the Chargor.
13. Saving
Provisions
13.1 Continuing
Security
Subject to Clause 14 (Discharge of Security),
the Charges are continuing Security and will extend to the ultimate balance of
the Secured Obligations, regardless of any intermediate payment or discharge in
whole or in part.
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13.2 Reinstatement
If any payment by the Chargor or any discharge given by a Secured Party
(whether in respect of the obligations of any Credit Party or any Security for
those obligations or otherwise) is avoided or reduced as a result of insolvency
or any similar event:
13.2.1 the liability of
the Chargor and the Charges shall continue as if the payment, discharge,
avoidance or reduction had not occurred; and
13.2.2 each Secured
Party shall be entitled to recover the value or amount of that security or
payment from the Chargor, as if the payment, discharge, avoidance or reduction
had not occurred.
13.3 Waiver
of defences
Neither the obligations of the Chargor under this Deed nor the Charges
will be affected by an act, omission, matter or thing which, but for this Clause,
would reduce, release or prejudice any of its obligations under any Loan
Document or any of the Charges (without limitation and whether or not known to
it or any Secured Party) including:
13.3.1 any time, waiver
or consent granted to, or composition with, the Chargor, any other Credit Party
or other person;
13.3.2 the release of
the Chargor, any other Credit Party or any other person under the terms of any
composition or arrangement with any creditor of any Credit Party;
13.3.3 the taking,
variation, compromise, exchange, renewal or release of, or refusal or neglect
to perfect, take up or enforce any rights against, or security over assets of,
the Chargor, any other Credit Party or other person or any non-presentation or
non-observance of any formality or other requirement in respect of any
instrument or any failure to realise the full value of any security;
13.3.4 any incapacity
or lack of power, authority or legal personality of or dissolution or change in
the members or status of the Chargor, any other Credit Party or any other
person;
13.3.5 any amendment
(however fundamental) or replacement of a Loan Document or any other document
or security;
13.3.6 any
unenforceability, illegality or invalidity of any obligation of any person
under any Loan Document or any other document or security;
13.3.7 any insolvency,
liquidation, Winding-up or similar proceedings; or
13.3.8 this Deed or any
other Loan Document not being executed by or binding against any person
intended or expressed to be party thereto.
13.4 Immediate
recourse
The Chargor waives any right it may have of first requiring any Secured
Party (or any trustee or agent on its behalf) to proceed against or enforce any
other rights or security or claim payment from any person before claiming from
the Chargor under this Deed. This waiver
applies irrespective of any law or any provision of a Loan Document to the
contrary.
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13.5 Appropriations
Until all the Secured Obligations have been irrevocably paid in full
and all facilities which might give rise to Secured Obligations have
terminated, each Secured Party (or any trustee or agent on its behalf) may:
13.5.1 refrain from
applying or enforcing any other moneys, security or rights held or received by
that Secured Party (or any trustee or agent on its behalf) in respect of those
amounts, or apply and enforce the same in such manner and order as it sees fit
(whether against those amounts or otherwise) and the Chargor shall not be
entitled to the benefit of the same; and
13.5.2 hold in an
interest-bearing suspense account any moneys received from the Chargor or on
account of the Chargor’s liability under this Deed.
13.6 Deferral
of Chargor’s rights
Until all the Secured Obligations have been irrevocably paid in full
and all facilities which might give rise to Secured Obligations have terminated
and unless the Administrative Agent otherwise directs, the Chargor will not
exercise any rights which it may have by reason of performance by it of its
obligations under the Loan Documents:
13.6.1 to be
indemnified by any other Credit Party;
13.6.2 to claim any
contribution from any other Credit Party or any other guarantor of any Credit
Party’s obligations under the Loan Documents; and/or
13.6.3 to
take the benefit (in whole or in part and whether by way of subrogation or
otherwise) of any rights of the Secured Parties under the Loan Documents or of
any guarantee or other security taken pursuant to, or in connection with, the
Loan Documents by any Secured Party.
13.7 Additional Security
The Charges are in addition to and are not in
any way prejudiced by any other guarantees or Security now or subsequently held
by any Secured Party.
14. Discharge
of Security
14.1 Discharge
of Security
14.1.1 Subject to
Clause 14.2 (Retention of Security) and to
reinstatement as set forth in Section 5.12 of the Credit Agreement, upon the
occurrence of the earlier of (i) the release of the Transaction Guarantee of
the Chargor pursuant to Section 2(c) of the Guarantee Agreement and (ii) the
satisfaction of all of the Ratings Release Conditions, the Administrative Agent
shall, at the request and cost of the Chargor, release, reassign or discharge
(as appropriate) the Charged Assets from the Charges.
14.1.2 At any time
before the Transaction Liens granted by the Borrower terminate, the Administrative
Agent may, at the written request of the Borrower, (i) release any Charged Assets (but not all or substantially all
the Charged Assets) with the prior
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written
consent of the Required Lenders or (ii) release all or substantially all the
Charged Assets with the prior written consent of all Lenders.
14.2 Retention
of Security
If the Administrative Agent considers that any amount paid or credited
to any Secured Party under any Loan Document is capable of being avoided or
otherwise set aside on the Winding-up of the Chargor or any other person or
otherwise so that the Transaction Guarantee of the Chargor may be reinstated
pursuant to Section 2(c)(i) of the Guarantee Agreement, the event described in
Clause 14.1.1(i) above shall not be considered to have occurred.
15. Conduct
of Business by the Secured Parties
No provision of this Deed will:
15.1.1 interfere with
the right of each Secured Party to arrange its affairs (Taxes or otherwise) in
whatever manner it thinks fit;
15.1.2 oblige any
Secured Party to investigate or claim any credit, relief, remission or
repayment available to it or the extent, order and manner of any claim; or
15.1.3 oblige any
Secured Party to disclose any information relating to its affairs (Taxes or
otherwise) or any computations in respect of Taxes.
16. Currency
Indemnity
16.1 Currency
indemnity
16.1.1 If any sum due
from the Chargor under this Deed (a “Sum”), or any
order, judgment or award given or made in relation to a Sum, has to be
converted from the Currency of Account into another currency (the “Second Currency”) for the purpose of:
(i) making
or filing a claim or proof against the Chargor;
(ii) obtaining
or enforcing an order, judgment or award in relation to any litigation or
arbitration proceedings,
the Chargor shall as an independent
obligation, within three Business Days of demand, indemnify each Secured Party
to whom that Sum is due against any cost, loss or liability arising out of or
as a result of the conversion including any discrepancy between (a) the rate of
exchange used to convert that Sum from the Currency of Account into the Second
Currency and (b) the rate or rates of exchange available to that Secured Party
at the time of its receipt of that Sum.
16.1.2 The Chargor
waives any right it may have in any jurisdiction to pay any amount under this
Deed in a currency or currency unit other than that in which it is expressed to
be payable.
16.2 Indemnities
separate
The indemnity in Clause
16.1 shall:
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16.2.1 constitute a
separate and independent obligation from the other obligations in this Deed;
16.2.2 give rise to a
separate and independent cause of action;
16.2.3 apply
irrespective of any indulgence granted by any Secured Party;
16.2.4 continue in full
force and effect despite any judgment, order, claim or proof for a liquidated
amount in respect of any Secured Obligation or any other judgment or order; and
16.2.5 apply whether or
not any claim under it relates to any matter disclosed by the Chargor or
otherwise known to any Secured Party.
17. Payments
17.1 Payments
All payments by the Chargor under this Deed (including damages for its
breach) shall be made in the Currency of Account and to such account, with such
financial institution and in such other manner as the Administrative Agent may
direct.
17.2 Continuation
of accounts
At any time after:
17.2.1 the receipt by
any Secured Party of notice (either actual or otherwise) of any subsequent
Security affecting the Charged Assets; or
17.2.2 the presentation
of a petition or the passing of a resolution in relation to the Winding-up of
the Chargor,
any Secured Party may open a new account in the name of the Chargor
with that Secured Party (whether or not it permits any existing account to
continue). If that Secured Party does not open such a new account, it shall
nevertheless be treated as if it had done so when the relevant event occurred.
No moneys paid into any account, whether new or continuing, after that event
shall discharge or reduce the amount recoverable pursuant to any Loan Document
to which the Chargor is party.
18. Trust Provisions
18.1 Declaration of Trust
The Administrative Agent agrees to
and shall hold the Charged Assets and the benefit of this Deed on trust for the
Secured Parties from time to time as security for the Transaction Guarantee of
the Chargor and for the due and punctual payment and discharge of all the
Secured Obligations guaranteed by the Chargor under the Transaction Guarantee
of the Chargor and on the terms and subject to the conditions contained in this
Deed and the obligations, rights and benefits vested or to be vested in the
Administrative Agent by this Deed or any document entered into pursuant hereto
shall (as well before as after enforcement) be performed and (as the case may
be) exercised in accordance with the provisions of this Deed.
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18.2 Rights upon enforcement
At any time after an Event of
Default shall have occurred and be continuing and until the whole of the
Charged Assets shall be sold, called in, collected or converted under the
powers of conversion conferred upon the Administrative Agent, the
Administrative Agent shall have, in addition to the powers conferred upon it by
or pursuant to this Deed, power at its discretion and without being responsible
for any loss or damage which may arise or be occasioned thereby and without any
consent by the Secured Parties or the Chargor to do each and every of the
following things:
18.2.1 settle, adjust, refer to arbitration, compromise or
arrange all accounts, questions, claims and demands whatsoever in relation to
the Charged Assets or any part thereof;
18.2.2 execute and do contracts, deeds, documents and things
and bring, defend or abandon actions, suits and proceedings in relation to the
Charged Assets in the name of the Chargor;
18.2.3 discharge the Charged Assets or any part thereof from
the security constituted by this Deed where the Administrative Agent considers
such discharge to be expedient in the interests of the Secured Parties and on
such terms and conditions as it thinks fit; and
18.2.4 generally to do anything in relation to the Charged
Assets or any part thereof as it could do if it were absolutely entitled
thereto.
18.3 Indemnification
The Administrative Agent shall not
be bound to take any steps to enforce the performance of any provisions of this
Deed unless it shall be indemnified to its satisfaction by the Secured Parties
against all proceedings, claims and demands to which it may be or become liable
and all costs, charges, expenses and liabilities which may be incurred by it in
connection therewith.
18.4 Raise Moneys
The Administrative Agent may at any
time after the security constituted by this Deed shall have become enforceable,
advance, raise or borrow money on the security of the Charged Assets or any
part thereof for the purpose of defraying any costs, charges, losses and
expenses which shall be paid or incurred by the Administrative Agent in
relation to this Deed (including remuneration of the Administrative Agent) or
which the Administrative Agent anticipates may be paid or incurred in the
exercise of the powers, authorities and discretions vested in it or for all
other purposes of this Deed and the Administrative Agent may advance, raise and
borrow such moneys at such rates of interest and generally on such terms and
conditions as the Administrative Agent shall think fit and may secure the
repayment of the moneys so advanced, raised or borrowed with interest on the
same by mortgaging or otherwise charging the Charged Assets or any part thereof
and generally in such manner and form as the Administrative Agent shall think
fit and for the purposes aforesaid may execute and do all such assurances,
deeds, acts and things as it shall think fit and no person lending any such
money shall be concerned to enquire as to the propriety or purpose of the
exercise of this power or to see to the application of any moneys so raised or
borrowed.
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18.5 Supplement to the Trustees Act
By way of supplement to the
Trustees Act, Chapter 337 of Singapore, it is expressly declared as follows:
18.5.1 the Administrative Agent may, in relation to this
Deed, act on the opinion, certificate or advice of, or information obtained
from, any lawyer, valuer, banker, broker, accountant or other expert appointed
by the Administrative Agent, the Chargor
or any other Secured Party and shall not be responsible for any loss occasioned
by so acting;
18.5.2 any such opinion, certificate, advice or information
may be sent or obtained by letter or facsimile transmission and the
Administrative Agent shall not be liable for acting on any opinion,
certificate, advice or information purporting to be conveyed by any such letter
or facsimile transmission although the same shall contain some error or shall
not be authentic;
18.5.3 the Administrative Agent may call for and shall be at
liberty to accept a certificate signed by any director of the Chargor as to any
fact or matter on which the Administrative Agent may need or wish to be
satisfied as sufficient evidence thereof and a like certificate that any assets
in the opinion of
the person so certifying have a
particular value or produce a particular income or are suitable for such
company’s purposes as sufficient evidence that they have that value or produce
that income or are so suitable and a like certificate to the effect that any
particular dealing, transaction, step or thing is in the opinion of the person
so certifying expedient as sufficient evidence that it is expedient and the
Administrative Agent shall not be bound in any such case to call for further
evidence or be responsible for any loss that may be occasioned by its failing
to do so or by its acting on any such certificate;
18.5.4 with a view to facilitating sales and other dealings
under any provisions of this Deed, the Administrative Agent shall have full
power prospectively to consent to any specified transaction conditionally on
the same conforming to any specified conditions laid down or approved by the
Administrative Agent;
18.5.5 the Administrative Agent shall have full power to
determine as between itself and the other Secured Parties all questions and
doubts arising in relation to any of the provisions of this Deed and every such
determination whether made upon a question actually raised or implied in the
acts or proceedings of the Administrative Agent shall be conclusive and shall
bind all persons interested under this Deed;
18.5.6 the Administrative Agent shall not be bound to take
any steps to ascertain whether any event has happened which causes, or which
with the lapse of time and/or a relevant determination, would cause, the
Secured Obligations to become payable or the security constituted by this Deed
to become enforceable and the Administrative Agent shall be entitled to assume
without enquiry that no such event has happened and that the Chargor is duly
performing all its obligations contained in this Deed and that the Borrower and
each of the other Loan Parties is duly performing its obligations contained in
the other Loan Documents;
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18.5.7 the Administrative Agent shall not be concerned with
or be responsible for any consolidation, amalgamation or merger of the Chargor
or any sale or transfer of all or substantially all of the assets of the
Chargor or the form or substance of any plan relating thereto or the
consequences thereof to any Secured Party;
18.5.8 the Administrative Agent shall be at liberty to hold
or deposit this Deed and any share certificates or documents relating to this
Deed with any banker or banking company or any company whose business includes
undertaking the safe custody of share certificates or documents or with any
lawyer or firm of lawyers of good repute and the Administrative Agent shall not
be responsible for, or be required to insure against, any loss incurred in
connection with any such holding or deposit and the Administrative Agent may
pay all sums required to be paid on account or in respect of any such deposit;
18.5.9 save as herein expressly provided, the Administrative
Agent shall as between itself and the other Secured Parties, as regards all the
duties, trusts, powers, authorities, rights and discretions vested in it by
this Deed, have absolute and uncontrolled discretion as to the exercise thereof
and it shall be in no way responsible for any loss, costs, damages, expenses or
inconvenience which may result from the exercise or non-exercise thereof
and whenever the Administrative Agent is, under the provisions of this Deed,
bound to act at the request or direction of the Secured Parties the
Administrative Agent shall nevertheless not be so bound unless first
indemnified to its satisfaction
against all actions, proceedings,
claims and demands to which it may render itself liable and all costs, charges,
damages, expenses and liabilities which it may incur by so doing;
18.5.10 the Administrative Agent may, in the conduct of the
trusts of this Deed, instead of acting personally, employ and pay an agent,
whether or not a lawyer or other professional person, to transact or conduct,
or concur in transacting or conducting, any business and to do or concur in
doing all acts required to be done by the Administrative Agent (including the
receipt and payment of money) and any trustee, being a lawyer, banker, broker
or other person engaged in any profession or business, shall be entitled to
charge and be paid all usual professional and other charges for business
transacted and acts done by him or any partner of his or by his firm in
connection with such trusts and also his charges in addition to disbursements
for all other work and business done and all time spent by him or his partner
or firm on matters arising in connection with this Deed, including matters
which might or should have been attended to in person by a trustee not being a
lawyer, banker, broker or other person engaged in any profession or business;
and the Administrative Agent shall not be in any way responsible for any loss
incurred by reason of any misconduct or default on the part of any such person
appointed by it hereunder or be bound to supervise the proceedings or acts of
any such person;
18.5.11 the Administrative Agent may whenever it thinks it
expedient in the interest of the Secured Parties, whether by power of attorney
or in such other manner as it may think fit, delegate to any person or persons
or fluctuating body of persons selected by it all or any of the trusts, rights,
powers, duties, authorities and discretions vested in it by this Deed and any
such delegation may be made upon such terms and conditions
21
(including power to sub-delegate with the approval of the
Administrative Agent) and subject to such regulations as the Administrative
Agent may in the interests of the Secured Parties think fit and, provided that
the Administrative Agent shall have exercised reasonable care in the selection
of such delegate, it shall not be under any obligation to supervise the
proceedings of and shall not be in any way responsible for any loss incurred by
reason of any misconduct or default on the part of any such delegate or sub-delegate
or be bound to supervise the proceedings or acts of any such person; the
Administrative Agent shall, within a reasonable time of any such delegation or
any renewal, extension or termination thereof, give notice thereof to the
Chargor and shall procure that any delegate shall give notice to the Chargor of
any appointment of any sub-delegate;
18.5.12 the Administrative Agent shall be entitled to rely on
the certificate of a duly authorised officer of any Secured Party as to the
amount payable in respect of the Secured Obligations due to such Secured Party
and shall not be liable to the Chargor by reason of such reliance;
18.5.13 any consent given by the Administrative Agent for the
purposes of this Deed may be given on such terms and conditions (if any) as the
Administrative Agent thinks fit;
18.5.14 the Administrative Agent shall not (unless ordered so
to do by a court of competent jurisdiction) be required to disclose to any
Secured Party any confidential, financial, price sensitive, or other
information made available to the Administrative Agent by the Chargor in connection
with this Deed and no Secured Party shall be entitled to take any action to
obtain from the Administrative Agent any such information; and
18.5.15 the Administrative Agent may determine whether or not
a default in the performance by the Chargor of any obligation under the
provisions of this Deed is in its opinion capable of remedy and/or is
materially prejudicial to the interests of the Secured Parties and any such
determination shall be conclusive and binding upon the Chargor and the Secured
Parties,
Provided,
nevertheless, that nothing contained in this sub-Clause shall, in any case in
which the Administrative Agent has failed to show the degree of care and
diligence required of it as trustee having regard to the provisions of this
Deed conferring on the Administrative Agent any powers, authorities or
discretions, relieve or indemnify the Administrative Agent against any
liability for breach of trust or any liability which by virtue of any rule of
law would otherwise attach to it in respect of any negligence, default, breach
of duty or breach of trust of which it may be guilty in relation to its duties
under this Deed.
18.6 Title
The Administrative Agent shall
accept without investigation, requisition or objection, such title as the
Chargor may have to the Charged Assets and shall not be bound or concerned to
examine or enquire into nor be liable for any defect or failure in the title of
the Chargor to the Charged Assets or any part thereof whether such defect or
failure was known to the Administrative Agent or might have been discovered
upon examination or enquiry and whether capable of remedy or not but the
Chargor shall nevertheless observe any undertaking given by them with regard to
any such title.
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18.7 Indemnity
The Administrative Agent and every
other attorney, agent or other person appointed by the Administrative Agent
under the provisions of this Deed shall be entitled to be indemnified out of
the Charged Assets in respect of all liabilities, costs, charges and expenses
properly incurred by it or him in relation to this Deed or to the preparation
and execution or purported execution thereof or to the carrying out of the
trusts of this Deed or the exercise of any trusts, powers or discretions vested
in it or him pursuant to this Deed and against all actions, proceedings, costs,
claims and demands in respect of any matter or thing done or omitted in any way
relating to this Deed in priority to any payments to the Secured Parties and
the Administrative Agent and the Administrative Agent may retain and pay out of
any moneys in its or his hands arising from this Deed all sums necessary to
effect such indemnity and also the remuneration of the Administrative Agent (if
any). Any third party referred to in this Clause 18.7 may enjoy the benefit of
or enforce the terms of this Clause in accordance with the provisions of the
Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore.
18.8 Performance of covenants
The Administrative Agent is hereby
authorised and it is declared that it is entitled to assume without enquiry (in
the absence of knowledge by or an express notice to it to the contrary) that
the Chargor is duly performing and observing all the covenants and provisions
contained in this Deed and on its part to be performed and observed and notwithstanding
knowledge by or notice to the Administrative Agent of any breach of any such
covenant, condition, provision or obligation it shall be in the discretion of
the Administrative Agent whether to take any action or proceedings or to
enforce the performance thereof and notwithstanding that the security
constituted by this Deed shall have become enforceable and that it may be
expedient to enforce the same the Administrative Agent shall not be bound to
enforce the same or any of the covenants, conditions, provisions or obligations
of this Deed unless and until in any of such cases the Administrative Agent is
requested to do so by the Required Lenders and then only if it shall be
indemnified to its satisfaction against all actions, proceedings, costs, claims
and demands to which it may render itself liable and all costs, charges,
damages and expenses which it may incur by so doing.
18.9 Other transactions
The Administrative Agent and any
director or officer of any corporation being a trustee pursuant to this Deed or
any company or person in any other way associated with the Administrative Agent
hereof shall be entitled to enter into or to be otherwise interested in any
banking, financial or business contracts or any other transactions or
arrangements with the Chargor or in connection with the whole or any part of
the Charged Assets which it could have entered into had it not been a trustee
pursuant to this Deed; and the Administrative Agent shall not be accountable to
the Chargor or any of the Secured Parties for any profits or benefits resulting
or arising from any contract, transaction or arrangement as is mentioned in
this Clause and the Administrative Agent shall also be at liberty to retain for
its own benefit and shall be in no way accountable to the Chargor or any of the
Secured Parties for any benefits or profits or any fees, commissions, discounts
or share of brokerage allowed to it by bankers, brokers or other parties in
relation to or otherwise arising out of any contract, transaction or arrangement
(including any dealing with the Charged Assets) permitted by or
23
effected under or in connection
with this Deed and if any contract, transaction or arrangement as is mentioned
in this Clause is dependent on or involves the exercise by the Administrative
Agent of any discretion the Administrative Agent shall be free if it thinks fit
to exercise such discretion so as to permit such contract, transaction or
arrangement notwithstanding its interest therein.
18.10 Modifications
The Administrative Agent may at any
time and from time to time without the consent or sanction of the Secured
Parties concur with the Chargor in making such modifications to this Deed as
may be agreed between the Chargor and the Administrative Agent, provided that
the Administrative Agent is of the opinion that such modification will not be
materially prejudicial to the interests of the Secured Parties or where the
modification is to correct a manifest error or omission.
18.11 Waiver
Unless otherwise directed by the
Secured Parties, the Administrative Agent may from time to time and at any
time, provided that in its opinion the interests of the Secured Parties will
not thereby be materially prejudiced, waive or authorise, on such terms and
conditions (if any) as shall seem expedient to the Administrative Agent, any
breach or proposed breach by the Chargor of any of the covenants, conditions,
provisions or obligations on its part contained in this Deed other than a
breach which gives rise to an event upon which the security constituted by this
Deed becomes enforceable without prejudice to the rights of the Administrative
Agent in respect of any subsequent breach thereof.
18.12 Discretion
Where under this Deed provision is
made for the giving of any consent or the exercise of any discretion by the
Administrative Agent any such consent may be given and any such discretion may
be exercised on such terms and conditions (if any) as the Administrative Agent
may think fit and the Chargor shall observe and perform any such terms and
conditions and the Administrative Agent may at any time waive or agree to a
variation in such terms and conditions.
Any such consent may be given retrospectively.
18.13 New Trustee
Subject to Clause 18.15, the power
to appoint a new trustee hereof shall be vested in the Chargor but no person
shall be appointed who shall not previously have been approved by the Secured
Parties. Any appointment of a new
trustee hereof shall as soon as practicable thereafter be notified by the Chargor
to the Secured Parties. The Required Lenders shall have power to remove any
trustee for the time being hereof.
18.14 Retirement
Any Administrative Agent hereof
may, subject to Clause 18.15, retire at any time on giving not less than 30
days’ prior written notice thereof to the Chargor and each of the Lenders
without assigning any reason and without being responsible for any costs
occasioned by such retirement. The Chargor undertakes that, in the event of the
Administrative Agent giving notice under this Clause, it shall as soon as
possible procure a new trustee to be appointed.
24
The retirement of an Administrative
Agent shall not take effect unless and until a new trustee is appointed.
18.15 Documentation
Where a new trustee is appointed
pursuant to Clause 18.13 or 18.14, each of the Parties agrees to execute such
documents and take such steps as are necessary to procure that the rights and
benefits of the security constituted by this Deed are fully and effectually
vested in such new trustee.
18.16 Powers Additional
The powers conferred on the Administrative
Agent shall be in addition to any powers which may from time to time be vested
in the Administrative Agent by the general law.
18.17 No Action
The Administrative Agent shall be
fully justified in failing or refusing to take any action hereunder (i) if such
action would, in the opinion of the Administrative Agent, be contrary to law or
the terms herein or any other Loan Document or (ii) if the Administrative Agent
shall not first be indemnified to its satisfaction against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action.
19. Rights,
Amendments, Waivers and Determinations
19.1 Ambiguity
Where there is any ambiguity or conflict between the rights conferred
by law and those conferred by or pursuant to any Loan Document, the terms of
that Loan Document shall prevail.
19.2 Exercise
of rights
No failure to exercise, nor any delay in exercising, on the part of any
Secured Party or Delegate, any right or remedy under any Loan Document shall
operate as a waiver, nor shall any single or partial exercise of any right or
remedy prevent any further or other exercise or the exercise of any other right
or remedy. The rights and remedies provided in the Loan Documents are
cumulative and not exclusive of any rights or remedies provided by law.
19.3 Amendments
and waivers
Any term of this Deed may be amended or waived only with the consent of
the Administrative Agent and the Chargor.
19.4 Determinations
Any certification or determination by any Secured Party or any Delegate
under any Loan Document is, in the absence of manifest error, conclusive
evidence of the matters to which it relates.
25
20. Separate
and Independent Obligations
The Security created by the Chargor by or in connection with any Loan
Document is separate from and independent of the Security created or intended
to be created by any other Credit Party by or in connection with any Loan
Document.
21. Partial
Invalidity
If, at any time, any provision of the Loan Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the remaining
provisions nor the legality, validity or enforceability of such provision under
the law of any other jurisdiction will in any way be affected or impaired.
22. Notices
22.1 Communications
in writing
Any communication to be made under or in connection with this Deed
shall be made in writing and, unless otherwise stated, may be made by fax or
letter.
22.2 Addresses
The address and fax number (and the department or officer, if any, for
whose attention the communication is to be made) of each Party for any
communication or document to be made or delivered under or in connection with
this Deed is that identified with its name below, or any substitute address,
fax number or department or officer as the Party may notify to the other by not
less than five Business Days’ notice.
22.3 Delivery
22.3.1 Any
communication or document made or delivered by one Party to another under or in
connection with this Deed will only be effective:
(i) if by way of fax,
when received in legible form; or
(ii) if by way of letter,
when it has been left at the relevant address or five Business Days after being
deposited in the post postage prepaid in an envelope addressed to it at that
address;
and, if a particular department or officer is specified as part of its
address details provided under Clause 22.2 (Addresses),
if addressed to that department or officer.
22.3.2 Any
communication or document to be made or delivered to the Administrative Agent
will be effective only when actually received by the Administrative Agent and
then only if it is expressly marked for the attention of the department or
officer specified below (or any substitute department or officer as the
Administrative Agent shall specify for this purpose).
23. Counterparts
This Deed may be executed in any number of counterparts, and this has
the same effect as if the signatures on the counterparts were on a single copy
of this Deed.
26
24. Governing
Law
This Deed shall be governed by, and construed in accordance with, the
laws of Singapore.
25. Jurisdiction
25.1 Jurisdiction
of Singapore courts
The courts of Singapore have non-exclusive jurisdiction to settle any
dispute arising out of or in connection with this Deed (including a dispute
regarding the existence, validity or termination of this Deed) (a “Dispute”).
25.2 Service of
process
Without prejudice to any other mode of service allowed under any
relevant law the Chargor:
25.2.1 irrevocably
appoints the Company as its agent for service of process in relation to any
proceedings before the Singapore courts in connection with this Deed; and
25.2.2 agrees that
failure by a process agent to notify the Chargor of the process will not
invalidate the proceedings concerned.
25.3 Venue
The Parties agree that the courts of Singapore are the most appropriate
and convenient courts to settle Disputes and accordingly no Party will argue to
the contrary.
25.4 Other
competent jurisdiction
This Clause 25 is for the benefit of the Administrative Agent only. As
a result, the Administrative Agent shall not be prevented from taking
proceedings relating to a Dispute in any other courts with jurisdiction. To the
extent allowed by law, the Administrative Agent may take concurrent proceedings
in any number of jurisdictions.
25.5 Consent to
enforcement
25.5.1 The Chargor
irrevocably and generally consents in respect of any Dispute anywhere to the
giving of any relief or the issue of any process in connection with that
Dispute including, without limitation, the making, enforcement or execution
against any assets whatsoever (irrespective of their use of intended use) of
any order or judgment which may be made or given in that Dispute, and agrees
that any final order or judgment shall be conclusive.
25.5.2 The Chargor
expressly agrees and consents to the provisions of this Clause 25.
25.6 Waiver of
immunity
The Chargor irrevocably agrees that, should any Party take any
proceedings anywhere (whether for an injunction, specific performance, damages
or otherwise in connection with any Loan Document), no immunity (to the extent
that it may at any time exist, whether on the grounds of sovereignty or
otherwise) from those proceedings, from attachment (whether in aid of
execution, before judgment or otherwise) of its assets or from execution of
judgment shall be claimed by it or with respect to its assets, any such
immunity being irrevocably waived.
27
The Chargor irrevocably agrees that it and its assets are, and shall be,
subject to such proceedings, attachment or execution in respect of its
obligations under this Deed.
28
Schedule
1
Rights of
Administrative Agent
The Administrative Agent
shall, in addition to the rights and benefits to which it shall be entitled,
under Clause 18, have the right, either in its own name or in the name of the
Chargor or otherwise and in such manner and on such terms and conditions as the
Administrative Agent thinks fit, and either alone or jointly with any other
person:
(a) Enter into possession
to take possession of,
get in and collect the Charged Assets and to require payment to it of all
Dividends;
(b) Deal
with
Charged Assets
to sell, transfer,
assign, exchange or otherwise dispose of or realise the Charged Assets to any
person either by public or private offer or auction, tender or private contract
and for a consideration of any kind (which may be payable or delivered in one
amount or by instalments spread over a period or deferred);
(c) Borrow money
to borrow or raise money
either unsecured or on the security of the Charged Assets (either in priority
to the Charges or otherwise);
(d) Claims
to settle, adjust, refer
to arbitration, compromise and arrange any claims, accounts, disputes,
questions and demands with or by any person who is or claims to be a creditor
of the Chargor or relating to the Charged Assets;
(e) Legal actions
to bring, prosecute,
enforce, defend and abandon actions, suits and proceedings in relation to the
Charged Assets or any business of the Chargor;
(f) Redemption of Security
to redeem any Security
(whether or not having priority to the Charges) over the Charged Assets and to
settle the accounts of any person with an interest in the Charged Assets;
(g) Rights of ownership
to exercise and do (or
permit the Chargor or any nominee of it to exercise and do) all such rights and
things as the Administrative Agent would be capable of exercising or doing if
it were the absolute beneficial owner of the Charged Assets; and
29
(h) Other powers
to do anything else it
may think fit for the realisation of the Charged Assets or incidental to the
exercise of any of the rights conferred on the Administrative Agent under or by
virtue of any Loan Document to which the Chargor is party, the Act or any other
applicable laws or regulations.
30
Schedule
2
Shares
100,000 issued and fully paid-up ordinary shares in
the capital of the Company.
31
Schedule
3
Form No. 9
BERMUDA
THE COMPANIES ACT 1981
PARTICULARS OF A MORTGAGE OR CHARGE
Pursuant to section 55 of the Companies Act 1981
Name of Company
Marvell
International Ltd. (the “Company”)
Date and description of the instrument creating or evidencing
the mortgage or charge
Share
Charge (the “Charge”)
dated as of 8 November 2006 between the
Company and Credit Suisse, Cayman Islands Branch, as trustee for the benefit of
the Secured Parties (as defined in the Charge).
Amount due or owing on the mortgage or charge
Secured Obligations (as defined in the Charge) guaranteed
by the Company under its Transaction Guarantee (as defined in the Charge), and such Transaction Guarantee
Names, addresses and description of the mortgagees or persons
entitled to the charge
Credit Suisse, Cayman
Islands Branch
c/o
Eleven Madison Avenue, New York, New York 10010, U.S.A.
as
trustee for the benefit of the Secured Parties (as defined in the Charge).
Short particulars of all the property mortgaged or charged
Charged
Assets (as defined in the Charge)
Particulars as to commission, allowance or discount (Note 3)
32
N/A
Signed: Date:
[8] November 2006
Conyers Dill &
Pearman
Designation of position in relation to the company
Attorneys to Credit
Suisse
33
NOTES:
1. The
original instrument or certified copy creating the charge, together with this
form, must be delivered to the Registrar and must be accompanied by the
prescribed fee. Please complete the form in black type.
2. A
description of the instrument, eg “Trust Deed” “Debenture”, “Mortgage” or “legal
charge”, etc, as the case may be, should be given.
3. In
this section should be inserted the amount or rate per cent of the commission,
allowance or discount (if any) paid or made either directly or indirectly by
the company to any person in consideration of his subscribing or agreeing to
subscribe, whether absolutely or conditionally, or procuring or agreeing to
procure subscriptions, whether absolute or conditional for any of the
debentures included in this return. The
rate of interest payable under the terms of the debentures should not be
entered.
4. If
the spaces overleaf are insufficient, the particulars may be continued on a
separate sheet.
34
In
witness whereof this
Deed has been duly executed as a deed on the date stated at the beginning of
this Deed.
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The Chargor
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SIGNED SEALED
and DELIVERED
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by /s/ Carol
Feathers
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as attorney of
and for and on behalf of
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MARVELL
INTERNATIONAL LTD.
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in the presence
of :
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Witness’s
signature
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Address:
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c/o Marvell Technology Group Ltd.
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5488 Marvell
Lane, Santa Clara, CA 95054
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United States of
America
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Fax No.:
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+1 408 832 4309
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Attention: Chief Financial Officer
35
|
The Administrative Agent
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SIGNED SEALED
and DELIVERED
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by
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Cassandra Droogan
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Vice President
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Shaheen Malik
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Associate
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as attorney of
and for and on behalf of
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CREDIT
SUISSE,
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CAYMAN
ISLANDS BRANCH
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in the presence
of :
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/s/ NUPUR KUMAR
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Witness’s signature Nupur
Kumar
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Address:
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Eleven Madison Avenue,
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New York, New
York 10010
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United States of
America
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Fax No.:
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+ 1 212 325 8304
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Attention: Thomas Lynch
36
