Dated this 18th day of May
2009
Between
Fame Trading Ltd.
as Lender
And
Astrata (Asia Pacific) Pte.
Ltd.
as Borrower
Facility Agreement
ABRAHAM
Advocates and
Solicitors
19, Keppel Road
#09-05, Jit Poh
Building
Singapore 089058
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
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5
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3.
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Conditions
Precedent and Availability
|
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
|
15-24
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3
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Borrowers
Intellectual Property Rights
|
25-26
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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, 24 De Castro
Street, Wickhams 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 135 Joo Seng Road, #02-01, Singapore 368363 ("
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:
(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;
(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$8,500,000 (or such lesser sum as the
case maybe) that shall be advanced by the Lender to the Borrower
pursuant and subject to this Agreement;
"Facility Fee"
has the meaning ascribed to it in Clause 7;
“Facility
Repayment Date" means the date immediately following the day on
which the period of 90 days expires from the date the Facility (or
the first portion of the Facility, as the case maybe) is disbursed
by the Lender to the Borrower;
"Holding
Company" means Astrata Group Inc. (Co. Reg No. C55761996), a
company incorporated in the State of Nevada. United States of
America, and having its registered office at 1000 East William
Street, Suite 204, Carson City, NV 89701, United States of America,
which is the holding company of the Borrower;
"Interest Rate"
means the rate equivalent to LIBOR plus 5 per cent per
annum;
"LIBOR" means
the daily reference rate based on the London Interbank Offer
Rate;
“Parties"
mean the parties to this Agreement:
"Second
Chargor" means Astrata (Singapore) Pte Ltd (Co. Reg. No.
200309965W), a company incorporated in the Republic of Singapore
and having its registered office at 135 Joo Seng Road #02-01,
Singapore 368363.
"Senior
Employee" means an employee of the Borrower whose monthly
remuneration exceeds US$ 10,000.00;
"Total
Indebtedness" means collectively the principal sum of US$8.500.000
(or such lesser sum that have been disbursed by the Lender to the
Borrower) and all interest, fees, costs. and other moneys
whatsoever, whether actually or contingently, which are expressed
to be payable (whether at maturity or otherwise) by the Borrower
under or in connection with or which the Borrower has covenanted to
pay or discharge under the Transaction Documents;
"Transaction
Documents" means collectively this Agreement and the following
documents:-
(i) the
Debenture executed or to be executed between the Lender and the
Borrower;
(ii) the
Debenture executed or to be executed between the Lender and the
Second Chargor;
(iii) the
Pledge Agreement executed or to be executed between the Lender and
the Holding Company; and
(iv) the
Continuing Guarantee executed or to be executed between the Lender
and the Holding Company.
any other
facility or security document or other document that may hereafter
and from time to time be executed in connection with the Facility
including any amendments, variations, supplements or modifications
thereto and Transaction Document means each and any one of
them.
"US$" 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,
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:-
(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.
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.
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 Suite 2302-3, Great Eagle Centre, 23 Harbour Road,
Wanchai, Hong Kong 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.
10.2 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:
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
