Form 8-K AMKOR TECHNOLOGY, INC. For: Mar 28

SECTION 1 INTERPRETATION

1.

SECTION 2 THE FACILITY

2.

3.

4.

SECTION 3 UTILISATION

5.

SECTION 4 REPAYMENT, PREPAYMENT AND CANCELLATION

6.

7.

SECTION 5 COSTS OF UTILISATION

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10.

11.

SECTION 6 ADDITIONAL PAYMENT OBLIGATIONS

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15.

16.

SECTION 7 GUARANTEE

17.

SECTION 8 REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT

18.

19.

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21.

22.

SECTION 9 CHANGES TO PARTIES

23.

24.

SECTION 10 THE FINANCE PARTIES

25.

26.

27.

SECTION 11 ADMINISTRATION

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35.

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39.

SECTION 12 GOVERNING LAW AND ENFORCEMENT

40.

41.

42.

Schedule 1 The Original Parties

Part I The Original Obligors

Part II The Original Lenders

Schedule 2 Conditions Precedent

Part I Conditions Precedent to Initial Utilisation

Part II Conditions precedent required to be delivered by an Additional Guarantor

Schedule 3 Utilisation Request

Schedule 4 Form of Transfer Certificate

Schedule 5 Form of Assignment Agreement

Schedule 6 Form of Compliance Certificate

Schedule 7 Form of Accession Letter – Additional Guarantor

Schedule 8 Existing Security and Financial Indebtedness

Schedule 9 Existing Buyers

Schedule 10 Timetables

Schedule 11 Form of Confidentiality Undertaking

Schedule 12 Compounded Rate Terms

Schedule 13 Daily Non-Cumulative Compounded RFR Rate

Schedule 14 Cumulative Compounded RFR Rate

Schedule 15 Restricted List

AMKOR TECHNOLOGY INC. as parent (the “Parent”);

AMKOR TECHNOLOGY SINGAPORE HOLDING PTE. LTD. as borrower (the “Company”);

THE SUBSIDIARIES OF THE COMPANY listed in Part I of Schedule 1 (The Original Parties) as original guarantors (together with the Parent, the “Original Guarantors”);

THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED, SINGAPORE BRANCH and DBS BANK LTD. each a mandated lead arranger and bookrunner (whether acting individually or together the “MLAB”);

THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 (The Original Parties) as lenders (the “Original Lenders”);

THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED, SINGAPORE BRANCH as agent of the Finance Parties (other than itself) (the “Agent”);

THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED, SINGAPORE BRANCH as offshore security trustee of the Secured Parties (the “Offshore Security Agent”); and

CTBC BANK CO., LTD. as onshore security agent of the Secured Parties (the “Onshore Security Agent” and, together with the Offshore Security Agent, the “Security Agents”).

DEFINITIONS AND INTERPRETATION

Definitions

an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation, lodgement or registration; or

in relation to anything which will be fully or partly prohibited or restricted by law if a Governmental Agency intervenes or acts in any way within a specified period after lodgement, filing, registration or notification, the expiry of that period without intervention or action.

the amount of its participation in any outstanding Loans; and

in relation to any proposed Utilisation, the amount of its participation in any Loans that are due to be made on or before the proposed Utilisation Date,

any Subsidiary of the Parent operating for the purpose of:

insuring the businesses, operations or properties owned or operated by the Parent or any of its Subsidiaries, including their future, present or former employee, director, officer, manager, contractor, consultant or advisor (or their respective Affiliates or family members), and related benefits; and/or

conducting any activities or business incidental thereto (it being understood and agreed that activities which are relevant or appropriate to qualify as an insurance company for U.S. federal or state tax purposes shall be considered “activities or business incidental thereto”); or

any Subsidiary of any such insurance subsidiary operating for the same purpose described in paragraph (a) above.

which is referred to in Schedule I (Details of the Mortgaged Property) to each ROC Chattel Mortgage; or

which is not referred to in paragraph (a) above and:

was originally acquired from the relevant manufacturer or other seller within the immediately preceding 12 Month period as at the date on which that asset becomes, or is required to become, subject to the Transaction Security;

has an appraisal value provided by CRIF China Credit Information Service (or any other reputable credit information agency or service) or an invoiced value which is equal to or exceeds NT5,000,000 on the date of such appraisal or, as the case may be, the invoice (or its equivalent in any other currency or currencies as determined by the Onshore Security Agent utilising the closing rate published by the Central Bank of Taiwan); and

falls within the following categories of equipment:

equipment-accessory;

general equipment;

machinery and equipment;

test equipment; and

test equipment accessory.

in relation to an Original Lender, the amount set opposite its name under the heading “Commitment” in Part II of Schedule 1 (The Original Parties) and the amount of any other Commitment transferred to it under this Agreement; and

in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement,

is agreed in writing by the Company and the Agent (acting on the instructions of the Majority Lenders);

specifies the relevant terms which are expressed in this Agreement to be determined by reference to Compounded Rate Terms; and

has been made available to the Company and each Finance Party.

a Loan or an Unpaid Sum;

an Interest Period for such a Loan or Unpaid Sum (or other period for the accrual of commission or fees); and

any term of this Agreement relating to the determination of a rate of interest in relation to such a Loan or Unpaid Sum,

the Daily Non-Cumulative Compounded RFR Rate for that RFR Banking Day; and

the applicable Credit Adjustment Spread.

is agreed in writing by the Company, the Agent (in its own capacity) and the Agent (acting on the instructions of the Majority Lenders);

specifies a calculation methodology for that rate; and

has been made available to the Company and each Finance Party.

any member of the Group or any of its advisers; or

another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,

information that:

is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 35 (Confidential Information);

is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or

is known by that Finance Party before the date the information is disclosed to it in accordance with paragraph (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and

any Funding Rate.

specified as such in the Compounded Rate Terms; or

determined by the Agent (or by any other Finance Party which agrees to determine that rate in place of the Agent) in accordance with the methodology specified in the Compounded Rate Terms.

which has failed to make its participation in a Loan available (or has notified the Agent or the Company (which has notified the Agent) that it will not make its participation in a Loan available) by the Utilisation Date of that Loan in accordance with Clause 5.4 (Lenders’ participation);

which has otherwise rescinded or repudiated a Finance Document; or

with respect to which an Insolvency Event has occurred and is continuing,

its failure to pay is caused by:

administrative or technical error; or

a Disruption Event; and

payment is made within five (5) Business Days of its due date; or

the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.

listed in the annex to, or otherwise subject to the provisions of, the Executive Order;

owned or controlled by, or acting for or on behalf of, any person listed in the annex to, or otherwise subject to the provisions of, the Executive Order;

with which any Finance Party is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law;

that commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order; or

named as a “specially designated national and blocked Person” on the most current list published by OFAC at its official website or any replacement website or other replacement official publication of such list.

a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; and

the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

from performing its payment obligations under the Finance Documents; or

from communicating with other Parties in accordance with the terms of the Finance Documents,

any reportable event, as defined in Section 4043 of ERISA, with respect to an Employee Plan, other than events for which the thirty (30) day notice period has been waived;

the filing of a notice of intent to terminate any Employee Plan or the termination of any Employee Plan under Section 4041 of ERISA;

the institution of proceedings under Section 4042 of ERISA by the PBGC for the termination of, or the appointment of a trustee to administer, any Employee Plan or the termination of any Multiemployer Plan under Section 4041A of ERISA;

any failure by any Employee Plan to satisfy the minimum funding standard (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Employee Plan, in each case whether or not waived;

the filing under Section 412(c) of the Code or Section 302(c) of ERISA of any request for a minimum funding variance, with respect to any Employee Plan or Multiemployer Plan;

the complete or partial withdrawal of any Obligor or any ERISA Affiliate from any Multiemployer Plan;

an Obligor or an ERISA Affiliate incurring any liability under Title IV of ERISA with respect to any Employee Plan (other than premiums due and not delinquent under Section 4007 of ERISA);

a determination that any Employee Plan is, or is expected to be, in “at risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code);

the existence of an Unfunded Pension Liability;

the failure to make a required contribution to any Employee Plan that could result in the imposition of a lien under Section 303(k) of ERISA or Section 430(k) of the Code; and/or

the receipt by an Obligor or any of its ERISA Affiliates of any notice of the imposition of withdrawal liability or of a determination that a Multiemployer Plan is, or is expected to be, insolvent, within the meaning of Title IV of ERISA, or in “endangered” or “critical” status or in “critical and declining” status within the meaning of Section 305 of ERISA or Section 432 of the Code.

an Unrestricted Subsidiary;

not wholly-owned or ceases to be wholly-owned as a result of a transaction with an unaffiliated third party for a bona fide business purpose;

created for the primary purpose of facilitating one or more Receivables Programs or holding or purchasing inventory or a non-operating Subsidiary which does not have any material liabilities to persons other than the Parent or its Subsidiaries;

a FSHCO or a CFC (or any direct or indirect Subsidiary of a Subsidiary that is a FSHCO or CFC);

prohibited or restricted by applicable law from guaranteeing the obligations under the Finance Documents, or which would require governmental (including regulatory) consent, approval, license or authorisation to provide a guarantee unless, such consent, approval, license or authorisation has been received;

prohibited or restricted from guaranteeing the obligations under the Finance Documents by any contractual obligation in existence on the date such entity becomes a US Subsidiary (but not entered into in contemplation thereof) and for so long as any such contractual obligation exists;

a Subsidiary with respect to which a guarantee by it of the obligations under the Finance Documents would result in a significant adverse tax consequence to the Parent or any of its Subsidiaries or direct or indirect equity owners (including, without limitation, as a result of any law or regulation in any applicable jurisdiction similar to Section 956 of the Code), or significant adverse regulatory consequences, in each case, as reasonably determined by the Lenders (in consultation with the Parent);

a not-for-profit Subsidiary;

an employee benefit trust or similar construct or a trust company;

in the reasonable judgment of the Parent, a Subsidiary as to which the cost or other consequences of guaranteeing the obligations under the Finance Documents would be excessive in view of the benefits to be obtained by the Secured Parties, which such designation shall be evidenced to the Agent by delivering to the Agent an Officers’ Certificate certifying that such Subsidiary has been so designated;

a special purpose entity; or

a Captive Insurance Subsidiary.

sections 1471 to 1474 of the Code as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof;

any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or

any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraph (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.

in relation to a “withholdable payment” described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; or

in relation to a “passthru payment” described in section 1471(d)(7) of the Code not falling within paragraph (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA.

moneys borrowed;

any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;

any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;

the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with GAAP, be treated as a balance sheet liability (other than any liability in respect of a lease or hire purchase contract which would, in accordance with GAAP in force prior to 1 January 2019, have been treated as an operating lease);

receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis) and provided that the reference to discounted shall not apply to internal provisioning of receivables;

any amount raised under any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other paragraph of this definition having the commercial effect of a borrowing;

any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that derivative transaction, that amount) shall be taken into account);

any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and

the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above.

equity share capital (including, for this purpose, any debt or other instrument treated as equity for U.S. federal income tax purposes (as reasonably determined by the Parent)); and

indebtedness, in either case of paragraphs (a) and (b) of this definition, in one or more Subsidiaries that are Foreign Subsidiaries, CFCs and/or one or more other FSHCOs.

in respect of the Parent, generally accepted accounting principles in the United States of America, including IFRS;

in respect of the Company, generally accepted accounting principles in Singapore;

in respect of AATT and ATT, generally accepted accounting principles in Taiwan; and

in respect of each Additional Guarantor, generally accepted accounting principles in its jurisdiction of incorporation on the date it becomes party to this Agreement.

with revenue or assets that individually would not exceed 2.5% of the revenue or assets, respectively, of the Parent on a consolidated basis, as of or for, as applicable, the four-quarter period ended on the date of the most recent Filed Financial Statements; or

with revenues or assets which, when aggregated with the revenues and assets of all other Immaterial US Subsidiaries, would not exceed 5.0% of the revenue or assets, respectively, of the Parent on a consolidated basis, as of or for, as applicable, the four-quarter period ended on the date of the most recent Filed Financial Statements.

is dissolved (other than pursuant to a consolidation, amalgamation or merger);

becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;

makes a general assignment, arrangement or composition with or for the benefit of its creditors;

institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;

has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:

results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or

is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;

has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);

seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets (other than for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in paragraph (d) above);

has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;

causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (h) above; or

takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.

is, or is scheduled to become, payable under any Finance Document; and

relates to a Loan.

the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;

the time barring of claims under the Limitation Acts, the possibility that an undertaking to assume liability for or indemnify a person against non-payment of stamp duty may be void and defences of set-off or counterclaim;

the limitation of the enforcement of the terms of leases of real property by laws of general application to those leases;

similar principles, rights and remedies under the laws of any Relevant Jurisdiction; and

any other matters which are set out as qualifications or reservations as to matters of law of general application in any legal opinions supplied to the Agent as a condition precedent under this Agreement on or before the first Utilisation Date.

any Original Lender; and

any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 23 (Changes to the Lenders),

its jurisdiction of incorporation;

any jurisdiction where any asset subject to or intended to be subject to the Transaction Security to be created by it is situated;

any jurisdiction where it conducts its business; and

any jurisdiction whose laws govern the perfection of any of the Transaction Security Documents entered into by it.

ATT and the Onshore Security Agent; and

AATT and the Onshore Security Agent.

ATT and the Onshore Security Agent; and

AATT and the Onshore Security Agent.

ATT and the Onshore Security Agent; and

AATT and the Onshore Security Agent.

ATT and the Onshore Security Agent; and

AATT and the Onshore Security Agent.

each ROC Assignment Agreement (Intercompany Loans);

each ROC Assignment Agreement (Insurance);

the ROC Share Pledge;

each ROC Real Estate Mortgage; and

each ROC Chattel Mortgage.

made or to be made on the same day that a maturing Loan is due to be repaid;

the aggregate amount of which is equal to or less than the amount of the maturing Loan; and

made or to be made to the Company for the purpose of refinancing that maturing Loan.

the United States;

the United Nations Security Council;

the European Union;

the United Kingdom;

Japan;

Singapore; and

the respective governmental institutions and agencies of any of the foregoing, including, without limitation, the US Department of the Treasury’s Office of Foreign Assets Control, the US Department of State, Her Majesty’s Treasury, and the Monetary Authority of Singapore.

the Transaction Security expressed to be granted in favour of the Offshore Security Agent as trustee, or as the case may be, the Onshore Security Agent as agent for the Secured Parties and all proceeds of that Transaction Security;

all obligations expressed to be undertaken by an Obligor to pay amounts in respect of the Secured Liabilities to the Offshore Security Agent as trustee, or as the case may be, the Onshore Security Agent as agent for the Secured Parties and secured by the Transaction Security, together with all representations and warranties expressed to be given by an Obligor in favour of the Offshore Security Agent as trustee, or as the case may be, the Onshore Security Agent as agent, for the Secured Parties; and

any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which each Security Agent is required by the terms of the Finance Documents to hold, in the case of the Offshore Security Agent, as trustee on trust for the Secured Parties and, in the case of the Onshore Security Agent, as agent for the benefit of the Secured Parties.

which is controlled, directly or indirectly, by the first mentioned company or corporation;

more than half the issued equity share capital of which is beneficially owned, directly or indirectly, by the first mentioned company or corporation; or

which is a Subsidiary of another Subsidiary of the first mentioned company or corporation,

the Singapore Debenture;

each US Security Document;

each ROC Security Document;

any other document evidencing or creating or expressed to evidence or create Security over any asset to secure any obligation of any Obligor to a Secured Party under the Finance Documents; and

any other document designated as such by the relevant Security Agent and the Company.

the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and

the date on which the Agent executes the relevant Assignment Agreement or Transfer Certificate.

has no Financial Indebtedness, other than non-recourse debt;

is a person with respect to which neither the Parent nor any of its Restricted Subsidiaries has any direct or indirect obligation:

to subscribe for additional equity share capital; or

to maintain or preserve such person’s financial condition or to cause such person to achieve any specified levels of operating results; and

has not guaranteed or otherwise directly or indirectly provided credit support for any Financial Indebtedness of the Parent or any of its Restricted Subsidiaries.

the Company if it is resident for tax purposes in the US; or

an Obligor some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.

US$250,000,000; and

an amount equal to 37.5 per cent. of the Group’s aggregate accounts receivable (net of allowances) as set out in the Filed Financial Statements.

Construction

Unless a contrary indication appears, any reference in this Agreement to:

any “Administrative Party”, the “Agent”, the “MLAB”, any “Finance Party”, any “Lender”, any “Obligor”, any “Party”, any “Secured Party”, any “Security Agent” or any other person shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents and in the case of each Security Agent, any person for the time being appointed as Security Agent or Security Agents in accordance with the Finance Documents;

“assets” includes present and future properties, revenues and rights of every description;

a “Finance Document” or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended or restated;

“including” shall be construed as “including without limitation” (and cognate expressions shall be construed similarly);

a “group of Lenders” or a “group of Finance Parties” includes all the Lenders or, as the case may be, all the Finance Parties;

“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;

a Lender’s “participation” in a Loan or Unpaid Sum includes an amount (in the currency of such Loan or Unpaid Sum) representing the fraction or portion (attributable to such Lender by virtue of the provisions of this Agreement) of the total amount of such Loan or Unpaid Sum and the Lender’s rights under this Agreement in respect thereof;

a “person” includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);

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 of any regulatory, self-regulatory or other authority or organisation;

a provision of law is a reference to that provision as amended or re-enacted from time to time; and

a time of day is a reference to Singapore time.

Section, Clause and Schedule headings are for ease of reference only.

Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.

A Default (other than an Event of Default) is “continuing” if it has not been remedied or waived and an Event of Default is “continuing” if it has not been remedied or waived. If a Default or an Event of Default occurs as a result of any event or circumstance (the “Primary Default”), and such Primary Default is remedied or waived in accordance with the terms of the Finance Documents, any other Default or Event of Default (the “Secondary Default”) which arises as a direct consequence of the event or circumstance giving rise to the Primary Default (and not any other event(s) or circumstance(s)) shall, for the avoidance of doubt, be deemed to be automatically remedied or waived at the same time as the Primary Default is remedied or waived, provided that, at the time any such Secondary Default arises, no Senior Officer of the Parent had knowledge of that Secondary Default.

Where this Agreement specifies an amount in a given currency (the “specified currency”) “or its equivalent”, the “equivalent” is a reference to the amount of any other currency which, when converted into the specified currency utilising the Agent’s spot rate of exchange (or, if the Agent does not have an available spot rate of exchange, any publicly available spot rate of exchange selected by the Agent (acting reasonably)) for the purchase of the specified currency with that other currency at or about 11 a.m. on the relevant date, is equal to the relevant amount in the specified currency.

A reference in this Agreement to a page or screen of an information service displaying a rate shall include:

any replacement page of that information service which displays that rate; and

the appropriate page of such other information service which displays that rate from time to time in place of that information service,

A reference in this Agreement to a Central Bank Rate shall include any successor rate to, or replacement rate for, that rate.

Any Compounded Rate Supplement overrides anything in:

Schedule 12 (Compounded Rate Terms); or

any earlier Compounded Rate Supplement.

A Compounding Methodology Supplement relating to the Daily Non-Cumulative Compounded RFR Rate or the Cumulative Compounded RFR Rate overrides anything relating to that rate in:

Schedule 13 (Daily Non-Cumulative Compounded RFR Rate) or Schedule 14 (Cumulative Compounded RFR Rate), as the case may be; or

any earlier Compounding Methodology Supplement.

Currency symbols and definitions

“$”, “USD”, “US$” and “US dollars” denote the lawful currency of the US.

“NT” denotes the lawful currency of Taiwan.

Third party rights

Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the “Third Parties Act”) to enforce or to enjoy the benefit of any term of this Agreement.

Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.

Any Receiver, Delegate or any person described in Clause 25.11 (Exclusion of liability) may, subject to this Clause 1.4 and the Third Parties Act, rely on any Clause of this Agreement which expressly confers rights on it.

THE FACILITY

The Facility

Finance Parties’ rights and obligations

The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.

Subject to paragraph (d) below, the rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party’s participation in the Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor.

Subject to paragraph (d) below, a Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.

With respect to Transaction Security which is related to assets located in Taiwan or the rights created under Taiwanese law by the relevant Transaction Security Document, each Obligor and each Finance Party agrees that each Finance Party shall be joint and several creditors under Article 283 of the Taiwan Civil Code with respect to their rights and claims hereunder and the other Finance Documents. The Onshore Security Agent shall hold and exercise such interest in its capacity as a joint and several creditor with all other Finance Parties in accordance with Article 283 of the Taiwan Civil Code and for the joint and several benefit of the Finance Parties.

Obligors’ Agent

Each Obligor (other than the Company) by its execution of this Agreement or an Accession Letter irrevocably appoints the Company to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:

the Company on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions, to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect the Obligor, without further reference to or the consent of that Obligor; and

each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Company,

Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Obligors’ Agent or given to the Obligors’ Agent under any Finance Document on behalf of another Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or after such other Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Obligors’ Agent and any other Obligor, those of the Obligors’ Agent shall prevail.

PURPOSE

Purpose

Monitoring

CONDITIONS OF UTILISATION

Initial conditions precedent

The Company may not deliver a Utilisation Request unless the Agent has received all of the documents and other evidence listed in Part I of Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Agent (acting on the instructions of the Majority Lenders). The Agent shall notify the Company and the Lenders promptly upon being so satisfied.

Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (a) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.

Further conditions precedent

in the case of a Rollover Loan, no Event of Default is continuing or would result from the proposed Loan and, in the case of any other Loan, no Default is continuing or would result from the proposed Loan and none of the circumstances described in Clause 7.2 (Change of control) has occurred;

the aggregate Loans outstanding on the proposed Utilisation Date (after the advance of the relevant Loan) would not be in excess of the Utilisation Threshold as at such Utilisation Date; and

the Repeating Representations to be made by each Obligor are true in all material respects.

Maximum number of Loans

The Company may not deliver a Utilisation Request if as a result of the proposed Utilisation more than 8 Loans would be outstanding.

The Company may not request that a Loan be divided.

UTILISATION

Delivery of a Utilisation Request

Completion of a Utilisation Request

Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:

the proposed Utilisation Date is a Business Day within the Availability Period;

the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount); and

the proposed Interest Period complies with Clause 9 (Interest Periods).

Only one Loan may be requested in each Utilisation Request.

Currency and amount

The currency specified in a Utilisation Request must be US dollars.

The amount of the proposed Loan must be:

in respect of the first Utilisation, an amount which is not more than the Available Facility and in an amount sufficient to make the payments of fees, costs and expenses referred to in Clause 3.1 (Purpose); and

in respect of any subsequent Utilisation, an amount which is not more than the Available Facility and which is a minimum of US$5,000,000 (and in integral multiples of US$1,000,000) or, if less, the Available Facility.

Lenders’ participation

If the conditions set out in Clause 4 (Conditions of Utilisation) and Clauses 5.1 (Delivery of a Utilisation Request) to 5.3 (Currency and amount) have been met, and subject to Clause 6.1 (Repayment of Loans), each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.

The amount of each Lender’s participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.

The Agent shall notify each Lender of the amount of each Loan, the amount of its participation in that Loan and, if different, the amount of that participation to be made available in accordance with Clause 28.1 (Payments to the Agent), in each case by the Specified Time.

Cancellation of Available Facility

REPAYMENT

Repayment of Loans

The Company shall repay each Loan on the last day of its Interest Period.

Without prejudice to each Company’s obligation under paragraph (a) above, if:

one or more Loans are to be made available to the Company:

on the same day that a maturing Loan is due to be repaid by the Company; and

in whole or in part for the purpose of refinancing the maturing Loan; and

the proportion borne by each Lender’s participation in the maturing Loan to the amount of that maturing Loan is the same as the proportion borne by that Lender’s participation in the new Loans to the aggregate amount of those new Loans,

if the amount of the maturing Loan exceeds the aggregate amount of the new Loans:

the Company will only be required to make a payment under Clause 28.1 (Payments to the Agent) in an amount in the relevant currency equal to that excess; and

each Lender’s participation in the new Loans shall be treated as having been made available and applied by the Company in or towards repayment of that Lender’s participation in the maturing Loan and that Lender will not be required to make a payment under Clause 28.1 (Payments to the Agent) in respect of its participation in the new Loans; and

if the amount of the maturing Loan is equal to or less than the aggregate amount of the new Loans:

the Company will not be required to make a payment under Clause 28.1 (Payments to the Agent); and

each Lender will be required to make a payment under Clause 28.1 (Payments to the Agent) in respect of its participation in the new Loans only to the extent that its participation in the new Loans exceeds that Lender’s participation in the maturing Loan and the remainder of that Lender’s participation in the new Loans shall be treated as having been made available and applied by the Company in or towards repayment of that Lender’s participation in the maturing Loan.

PREPAYMENT AND CANCELLATION

Illegality

that Lender shall promptly notify the Agent upon becoming aware of that event;

upon the Agent notifying the Company, the Available Commitment of that Lender will be immediately cancelled; and

to the extent that the Lender’s participation has not been transferred pursuant to paragraph (d) of Clause 7.7 (Right of prepayment and cancellation in relation to a single Lender), the Company shall repay that Lender’s participation in the Loans made to the Company on the last day of the Interest Period for each Loan occurring after the Agent has notified the Company or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender’s corresponding Commitment(s) shall be immediately cancelled in the amount of the participations repaid.

Change of control

If:

any Obligor (other than the Parent) ceases to be controlled by the Parent; or

any person or group of persons (other than Permitted Holders) acting in concert holds, directly or indirectly, more than 35 per cent. of the ordinary voting shares in the Parent,

a Lender shall not be obliged to fund a Utilisation (except for a Rollover Loan); and

if a Lender so requires and notifies the Agent within 15 Business Days of the Company or the Parent notifying the Agent of the event, the Agent shall (subject to the Company’s right to replace such Lender under paragraph (d) of Clause 7.7 (Right of prepayment and cancellation in relation to a single Lender)), by not less than 5 days’ notice to the Company, cancel each Available Commitment of that Lender and declare the participation of that Lender in all Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents in relation to that Lender’s participation(s) immediately due and payable, whereupon each such Available Commitment will be immediately cancelled, any Commitment of that Lender shall immediately cease to be available for further utilisation and all such Loans, accrued interest and other amounts shall become immediately due and payable.

For the purpose of paragraph (a) above, “control” or “controlled” means:

the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to do any of the following:

cast, or control the casting of, all the votes that might be cast at a general meeting of an Obligor (other than the Parent) (and excluding, in respect of AATT, up to 0.03% of the shares in AATT which are not held by ATT); or

appoint or remove all of the directors or other equivalent officers of an Obligor (other than the Parent); or

give directions with respect to the operating and financial policies of an Obligor (other than the Parent) which the directors or other equivalent officers of such company are obliged to comply with; or

the holding, directly or indirectly of all of the issued share capital of an Obligor (other than the Parent) (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital and excluding, in respect of AATT, up to 0.03% of the shares in AATT which are not held by ATT).

For the purpose of paragraph (a) above, “acting in concert” means, in relation to the Parent, a group of persons who, pursuant to an agreement or understanding (whether formal or informal), actively co-operate, through the acquisition by any of them, either directly or indirectly, of shares in that company, to obtain or consolidate control of the Parent.

Utilisation Threshold

If at any time the aggregate principal amount of the outstanding Loans is greater than the relevant Utilisation Threshold at such time (such event being a “Threshold Breach”), the Company shall make a prepayment of the outstanding Loans.

The amount of the prepayment required shall be equal to the amount which, if subtracted from the aggregate principal amount of the outstanding Loans as at the date of such Threshold Breach, would have resulted in the aggregate outstanding Loans being equal or lower than to the relevant Utilisation Threshold.

Any prepayment under this Clause 7.3 shall be made within seven (7) Business Days of the earlier of (A) the Agent giving notice to the Company and (B) any Obligor becoming aware of the Threshold Breach. For the avoidance of doubt, the Agent shall not be obliged to monitor whether a Threshold Breach has occurred.

Asset sales

The Company shall:

ensure that all Disposal Proceeds (other than Excluded Disposal Proceeds) are applied in prepayment of the outstanding Loans; and

subject to paragraph (b) below, cancel the Available Commitments in an amount equal to all amounts prepaid under paragraph (i) above,

The Majority Lenders may elect to waive the cancellation of the Available Commitments under paragraph (a)(ii) above.

In this Clause 7.4:

“Asset Sale” means a sale, lease, transfer or other disposal by a member of the Group (whether by a voluntary or involuntary single transaction or series of transaction) referred to under paragraph (v) of Clause 21.5 (Disposals);

“Disposal Proceeds” means the consideration receivable by any member of the Group for any Asset Sale made by any member of the Group after deducting:

any reasonable expenses which are incurred by that member of the Group with respect to that Asset Sale to persons who are not members of the Group; and

any Tax incurred and required to be paid by the seller in connection with that Asset Sale (as reasonably determined by the seller, on the basis of existing rates and taking account of any available credit, deduction or allowance); and

“Excluded Disposal Proceeds” means Disposal Proceeds which are applied by the relevant member of the Group in reinvestments in assets used in operations of that member of the Group within:

365 days of receipt of those Disposal Proceeds; or

365 days of the relevant member of the Group making a binding commitment to the Agent (such commitment being given within 365 days of receipt of the relevant Disposal Proceeds) to reinvest such Disposal Proceeds.

Voluntary cancellation

Voluntary prepayment of Loans

Right of prepayment and cancellation in relation to a single Lender

If:

any sum payable to any Lender by an Obligor is required to be increased under paragraph (a) of Clause 12.2 (Tax gross-up);

any Lender claims indemnification from the Company under Clause 12.3 (Tax indemnity) or Clause 13.1 (Increased Costs); or

any Lender is a Defaulting Lender,

On receipt of a notice of cancellation referred to in paragraph (a) above, the Available Commitment(s) of that Lender shall be immediately reduced to zero.

On the last day of each Interest Period which ends after the Company has given notice of cancellation under paragraph (a) above (or, if earlier, the date specified by the Company in that notice), the Company shall prepay that Lender’s participation in that Loan and that Lender’s corresponding Commitment(s) shall be immediately cancelled in the amount of the participations repaid.

If:

any of the circumstances set out in paragraph (a) above apply to a Lender;

any Lender becomes a Non-Consenting Lender (as defined in paragraph (h) below);

a Lender gives the notice referred to in paragraph (a)(iv) of Clause 7.2 (Change of control);

an Obligor becomes obliged to pay any amount in accordance with Clause 7.1 (Illegality) to any Lender; or

an Existing Lender intends to assign any of its rights or transfer by novation any of its rights and obligations to an entity on the Restricted List in accordance with paragraph (d) of Clause 23.2 (Conditions of assignment or transfer),

The replacement of a Lender pursuant to paragraph (d) above shall be subject to the following conditions:

the Company shall have no right to replace the Agent or any Security Agent;

none of the Agent, any Security Agent nor any Lender shall have any obligation to find a replacement Lender;

in the event of a replacement of a Non-Consenting Lender such replacement must take place no later than 120 days after the date on which that Lender is deemed to be a Non-Consenting Lender;

in no event shall the Lender replaced under paragraph (d) above be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents; and

no Lender shall be obliged to execute a Transfer Certificate unless it is satisfied that it has completed all “know your customer” and other similar procedures that it is required to conduct in relation to the transfer to such replacement Lender.

A Lender shall perform the procedures described in paragraph (e)(v) above as soon as reasonably practicable following delivery of a notice referred to in paragraph (d) above and shall notify the Agent and the Company when it is satisfied that it has completed those checks.

If any Lender becomes a Defaulting Lender, the Company may, at any time whilst the Lender continues to be a Defaulting Lender, give the Agent five (5) Business Days’ notice of cancellation of the Available Commitment of that Lender.

On the notice referred to in paragraph (i) above becoming effective, the Available Commitment of that Defaulting Lender shall immediately be reduced to zero.

The Agent shall as soon as practicable after receipt of a notice referred to in paragraph (i) above, notify all the Lenders.

In the event that:

the Company or the Agent (at the request of the Company) has requested the Lenders to give consent in relation to, or to agree to a waiver or amendment of, any provisions of the Finance Documents;

the consent, waiver or amendment in question requires the approval of all the Lenders; and

the Majority Lenders have consented or agreed to such waiver or amendment,

Restrictions

Any notice of cancellation or prepayment given by any Party under this Clause 7 shall, except as expressly provided in Clause 7.5 (Voluntary cancellation), be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.

Unless a contrary indication appears in this Agreement, any part of the Facility which is repaid or prepaid may be reborrowed in accordance with the terms of this Agreement.

The Company shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.

No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

If the Agent receives a notice under this Clause 7 it shall promptly forward a copy of that notice to either the Company or the affected Lender, as appropriate.

If all or part of any Lender’s participation in a Loan is repaid or prepaid and is not available for redrawing (other than by operation of Clause 4.2 (Further conditions precedent)), an amount of that Lender’s Commitment (equal to the amount of the participation which is repaid or prepaid) will be deemed to be cancelled on the date of repayment or prepayment.

Application of prepayments

Any prepayment of a Loan pursuant to Clause 7.2 (Change of control), Clause 7.3 (Utilisation Threshold), Clause 7.6 (Voluntary prepayment of Loans) shall be applied pro rata to each Lender’s participation in that Loan.

Any prepayment of a Loan and/or cancellation of any Available Commitment pursuant to Clause 7.4 (Asset sales), or as the case may be, paragraph (e) of Clause 20.4 (Equity Cure) shall be applied in the following order:

first, unless the Majority Lenders have waived that requirement pursuant to paragraph (b) of Clause 7.4 (Asset sale) or, as the case may be, paragraph (f) of Clause 20.4 (Equity Cure), in cancellation of the Available Commitments under the Facility on a pro rata basis (and the Available Commitments of the Lenders under the Facility will be cancelled rateably); and

secondly, in prepayment of that Loan, such that the outstanding Loan shall be prepaid on a pro rata basis in accordance with each Lender’s participation in that Loan, and cancellation of the corresponding Commitments.

INTEREST

Calculation of interest

The rate of interest on each Loan for any day during an Interest Period is the percentage rate per annum which is the aggregate of the applicable:

Margin; and

Compounded Reference Rate for that day.

If any day during an Interest Period for a Loan is not an RFR Banking Day, the rate of interest on that Loan for that day will be the rate applicable to the immediately preceding RFR Banking Day.

Payment of interest

Default interest

If either:

an Event of Default of the kind referred to in Clause 22.6 (Insolvency), 22.7 (Insolvency proceedings) or 22.8 (Creditors’ process) is continuing; or

an Obligor fails to pay any amount payable by it under a Finance Document on its due date and a Lender so requires by notice to the Agent,

in the case of the circumstances described in paragraph (a)(i) above, on the aggregate outstanding Loans until such Event of Default ceases to be continuing; or

in the case of the circumstances described in paragraph (a)(ii) above, on the overdue amount due to such Lender from the due date up to the date of actual payment (both before and after judgment),

Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.

Notification of rates of interest

The Agent shall promptly upon an Interest Payment being determinable notify:

the Company of that Interest Payment;

each relevant Lender of the proportion of that Interest Payment which relates to that Lender’s participation in the relevant Loan; and

the relevant Lenders and the Company of:

each applicable rate of interest relating to the determination of that Interest Payment; and

to the extent it is then determinable, the Market Disruption Rate (if any) relating to the relevant Loan.

The Agent shall promptly notify the Company of each Funding Rate relating to a Loan.

The Agent shall promptly notify the relevant Lenders and the Company of the determination of a rate of interest relating to a Loan to which Clause 10.3 (Cost of funds) applies.

This Clause 8.4 shall not require the Agent to make any notification to any Party on a day which is not a Business Day.

INTEREST PERIODS

Selection of Interest Periods

The Company may select an Interest Period for a Loan in the Utilisation Request for that Loan.

Subject to this Clause 9, the Company may select an Interest Period of any period specified in the Compounded Rate Terms or of any other period agreed between the Company, the Agent and all the Lenders in relation to the relevant Loan.

An Interest Period for a Loan shall not extend beyond the Final Repayment Date.

A Loan has one Interest Period only which shall start on the Utilisation Date of that Loan.

No Interest Period for a Loan shall be longer than six Months.

Non-Business Days

Other than where paragraph (b) below applies, if an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).

If there are rules specified as “Business Day Conventions” in the Compounded Rate Terms, those rules shall apply to each Interest Period for a Loan or an Unpaid Sum.

CHANGES TO THE CALCULATION OF INTEREST

Interest calculation if no RFR or Central Bank Rate

there is no applicable RFR or Central Bank Rate for the purposes of calculating the Daily Non-Cumulative Compounded RFR Rate for an RFR Banking Day during an Interest Period for a Loan; and

“Cost of funds will apply as a fallback” is specified in the Compounded Rate Terms,

Market disruption

a Market Disruption Rate is specified in the Compounded Rate Terms; and

before the Reporting Time, the Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 35 per cent. of that Loan) that the cost to it of funding its participation in that Loan from whatever source it may reasonably select would be in excess of that Market Disruption Rate,

Cost of funds

If this Clause 10.3 applies to a Loan for an Interest Period, Clause 8.1 (Calculation of interest) shall not apply to that Loan for that Interest Period and the rate of interest on each Lender’s share of that Loan for that Interest Period shall be the percentage rate per annum which is the sum of:

the applicable Margin; and

the rate notified to the Agent by that Lender as soon as practicable and in any event by the Reporting Time, to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Loan from whatever source it may reasonably select.

If this Clause 10.3 applies and the Agent so requires, the Agent and the Company shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest.

Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Company, be binding on all Parties.

If this Clause 10.3 applies pursuant to Clause 10.2 (Market disruption) and in relation to a Loan:

a Lender’s Funding Rate is less than the relevant Market Disruption Rate; or

a Lender does not supply a quotation by the Reporting Time,

If this Clause 10.3 applies the Agent shall, as soon as is practicable, notify the Company.

Break Costs

If an amount is specified as Break Costs in the Compounded Rate Terms, the Company shall, within three (3) Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs (if any) attributable to all or any part of a Loan or Unpaid Sum being paid by the Company on a day prior to the last day of an Interest Period for that Loan or Unpaid Sum.

Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in respect of which they become, or may become, payable.

FEES

Commitment fee

The Company shall pay to the Agent (for the account of each Lender) a fee computed and accruing on a daily basis at the rate of:

on any day on which the aggregate of the undrawn and uncancelled Commitments is less than or equal to 33.3% of the Total Commitments, 0.30 per cent. per annum;

on any day on which the aggregate of the undrawn and uncancelled Commitments is less than or equal to 66.7% of the Total Commitments and greater than 33.3% of the Total Commitments, 0.40 per cent. per annum; or

on any day on which the aggregate of the undrawn and uncancelled Commitments is greater than 66.7% of the Total Commitments, 0.50 per cent. per annum,

The accrued commitment fee is payable:

on the last day of each successive period of three (3) Months which ends during the Availability Period;

on the last day of the Availability Period; and

if a Lender’s Commitment is reduced to zero before the last day of the Availability Period, on the day on which such reduction to zero becomes effective.

Arrangement fee

Agency fee

Onshore Security agency fee

Offshore Security agency fee

TAX GROSS-UP AND INDEMNITIES

Tax definitions

a Treaty Lender; or

a Lender which:

is a financial institution resident in Singapore for Singapore tax purposes or is acting through a Facility Office in Singapore which has been granted a waiver from the Inland Revenue Authority of Singapore for payments of interest to be made to it without any Singapore withholding tax; and

is in possession of (A) a valid licence granted under the Banking Act 1970 of Singapore, authorising it to conduct banking business in Singapore or (B) a valid licence granted by the Monetary Authority of Singapore, authorising it to conduct merchant banking business in Singapore.

is treated as a resident of a Singaporean Treaty State for the purposes of a Singaporean Treaty;

does not carry on a business in Singapore through a permanent establishment with which that Lender’s participation in any Loan is effectively connected; and

is, on the date it becomes a Lender, entitled under the relevant Singaporean Treaty in force on that date (subject to the completion of any necessary procedural formalities and to the satisfaction of all other conditions for relief under that Singaporean Treaty) to the relevant payment without a deduction or withholding on account of tax imposed by Singapore.

Tax gross-up

All payments to be made by an Obligor to any Finance Party under the Finance Documents shall be made free and clear of and without any Tax Deduction unless such Obligor is required by applicable law or regulation to make a Tax Deduction, in which case the sum payable by such Obligor (in respect of which such Tax Deduction is required to be made) shall be increased to the extent necessary to ensure that such Finance Party receives a sum net of any deduction or withholding equal to the sum which it would have received had no such Tax Deduction been made or required to be made.

The Company shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from a Lender it shall notify the Company and that Obligor.

If an Obligor is required by applicable law or regulation to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

No additional amounts shall be payable to a Lender under paragraph (a) above in respect of a Tax Deduction on account of Tax imposed by:

Singapore, if on the date on which the payment falls due the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Singaporean Qualifying Lender, but on that date that Lender is not or has ceased to be a Singaporean Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty or any published practice or published concession of any relevant taxing authority;

Singapore, if on the date on which the payment falls due the relevant Lender is a Treaty Lender and the Obligor making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under paragraph (f) below; or

any jurisdiction in the case of Taxes described in paragraphs (a)(i) and (ii) of Clause 12.3 (Tax indemnity).

Within 45 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

Any Finance Party and each Obligor which makes a payment to which that Finance Party is entitled shall co-operate in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without, or at a reduced rate of, a Tax Deduction.

Tax indemnity

Without prejudice to Clause 12.2 (Tax gross-up), if any Finance Party is required to make any payment of or on account of Tax on or in relation to any sum received or receivable under the Finance Documents (including any sum deemed for the purposes of Tax to be received or receivable by such Finance Party whether or not actually received or receivable) or if any liability in respect of any such payment is asserted, imposed, levied or assessed against any Finance Party, the Company shall, within five (5) Business Days of demand of the Agent, promptly indemnify the Finance Party which suffers a loss or liability as a result against such payment or liability, together with any interest, penalties, costs and expenses payable or incurred in connection therewith, provided that this Clause 12.3 shall not apply to:

any Tax imposed on and calculated by reference to the net income actually received or receivable by such Finance Party (but, for the avoidance of doubt, not including any sum deemed for the purposes of Tax to be received or receivable by such Finance Party but not actually receivable) by the jurisdiction in which such Finance Party is incorporated;

any Tax imposed on and calculated by reference to the net income of the Facility Office of such Finance Party actually received or receivable by such Finance Party (but, for the avoidance of doubt, not including any sum deemed for the purposes of Tax to be received or receivable by such Finance Party but not actually receivable) by the jurisdiction in which its Facility Office is located; or

a FATCA Deduction required to be made by a Party.

A Finance Party intending to make a claim under paragraph (a) above shall notify the Agent of the event giving rise to the claim, whereupon the Agent shall notify the Company thereof.

A Finance Party shall, on receiving a payment from an Obligor under this Clause 12.3, notify the Agent.

Tax credit

a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and

that Finance Party has obtained and utilised that Tax Credit,

Stamp taxes

pay all stamp duty, registration and other similar Taxes payable in respect of any Finance Document; and

within five (5) Business Days of demand, indemnify each Secured Party against any cost, loss or liability that Secured Party incurs in relation to any stamp duty, registration or other similar Tax paid or payable in respect of any Finance Document.

Indirect tax

All amounts set out or expressed in a Finance Document to be payable by any Party to a Finance Party (including for the avoidance of doubt any amounts payable under Clause 16.1 (Transaction expenses)) shall be deemed to be exclusive of any Indirect Tax. If any Indirect Tax is chargeable on any supply made by any Finance Party to any Party in connection with a Finance Document, that Party shall pay to the Finance Party (in addition to and at the same time as paying the consideration) an amount equal to the amount of the Indirect Tax.

Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any costs or expenses, that Party shall also at the same time pay and indemnify the Finance Party against all Indirect Tax incurred by that Finance Party in respect of the costs or expenses to the extent that the Finance Party reasonably determines that it is not entitled to credit or repayment in respect of the Indirect Tax.

FATCA information

Subject to paragraph (c) below, each Party shall, within ten (10) Business Days of a reasonable request by another Party:

confirm to that other Party whether it is:

a FATCA Exempt Party; or

not a FATCA Exempt Party;

supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party’s compliance with FATCA; and

supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party’s compliance with any other law, regulation, or exchange of information regime.

If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.

Paragraph (a) above shall not oblige any Finance Party to do anything, and paragraph (a)(iii) above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:

any law or regulation;

any fiduciary duty; or

any duty of confidentiality.

If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (a)(ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.

If the Company is a US Tax Obligor or the Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten (10) Business Days of the date of a request from the Agent, supply to the Agent:

a withholding certificate on the applicable Form W-8, Form W-9 or any other relevant form; or

any withholding statement or other document, authorisation or waiver as the Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.

The Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) above to the Company.

If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Agent by a Lender pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Agent unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Agent). The Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the Company.

The Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) or (g) above without further verification. The Agent shall not be liable for any action taken by it under or in connection with paragraph (e), (f) or (g) above.

FATCA Deduction

Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Company and the Agent and the Agent shall notify the other Finance Parties.

INCREASED COSTS

Increased Costs

Subject to Clause 13.3 (Exceptions) the Company shall, within three (3) Business Days of a demand by the Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation or (ii) compliance with any law or regulation made after the date of this Agreement, provided that notwithstanding anything herein to the contrary, the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith shall be deemed to have been introduced after the date of this Agreement, regardless of the date enacted, adopted or issued. The terms “law” and “regulation” in this paragraph (a) shall include any law or regulation concerning capital adequacy, prudential limits, liquidity, reserve assets or Tax.

In this Agreement, “Increased Costs” means:

a reduction in the rate of return from the Facility or on a Finance Party’s (or its Affiliate’s) overall capital (including as a result of any reduction in the rate of return on capital brought about by more capital being required to be allocated by such Finance Party);

an additional or increased cost; or

a reduction of any amount due and payable under any Finance Document,

Increased Cost claims

A Finance Party (other than the Agent) intending to make a claim pursuant to Clause 13.1 (Increased Costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Company.

Each Finance Party (other than the Agent) shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs.

Exceptions

attributable to a Tax Deduction required by law to be made by an Obligor;

attributable to a FATCA Deduction required to be made by a Party;

compensated for by Clause 12.3 (Tax indemnity) (or would have been compensated for under Clause 12.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in paragraph (a) of Clause 12.3 (Tax indemnity) applied); or

attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation.

MITIGATION BY THE LENDERS

Mitigation

Each Finance Party shall, in consultation with the Company, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 12 (Tax Gross-up and Indemnities) or Clause 13 (Increased Costs), including:

providing such information as the Company may reasonably request in order to permit the Company to determine its entitlement to claim any exemption or other relief (whether pursuant to a double taxation treaty or otherwise) from any obligation to make a Tax Deduction; and

in relation to any circumstances which arise following the date of this Agreement, transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.

Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.

Limitation of liability

The Company shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 14.1 (Mitigation).

A Finance Party is not obliged to take any steps under Clause 14.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

Conduct of business by the Finance Parties

interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;

oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or

oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.

OTHER INDEMNITIES

Currency indemnity

If any sum due from an Obligor under the Finance Documents (a “Sum”), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the “First Currency”) in which that Sum is payable into another currency (the “Second Currency”) for the purpose of:

making or filing a claim or proof against that Obligor; or

obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,

Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.

Other indemnities

the occurrence of any Event of Default;

the Information Memorandum or any other information produced or approved by any Obligor being or being alleged to be misleading and/or deceptive in any respect;

any enquiry, investigation, subpoena (or similar order) or litigation with respect to any Obligor or with respect to the transactions contemplated or financed or secured under any Finance Document;

a failure by an Obligor to pay any amount due under a Finance Document on its due date, including any cost, loss or liability arising as a result of Clause 26 (Application of Proceeds);

funding, or making arrangements to fund, its participation in a Loan requested by the Company in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or

a Loan (or part of a Loan) not being prepaid or cancelled in accordance with a notice of prepayment or cancellation given by the Company.

Indemnity to the Agent

investigating any event which it reasonably believes is a Default;

acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or

instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement.

Indemnity to the Security Agents

Each Obligor shall jointly and severally promptly indemnify each Security Agent and every Receiver and Delegate against any cost, loss or liability incurred by any of them as a result of:

any failure by the Company to comply with obligations under Clause 16 (Costs and Expenses);

acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;

the taking, holding, protection or enforcement of the Transaction Security;

the exercise of any of the rights, powers, discretions and remedies vested in that Security Agent and each Receiver and Delegate by the Finance Documents or by law;

any default by any Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents;

instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement; or

acting as Security Agent, Receiver or Delegate under the Finance Documents or which otherwise relates to any of the Security Property or the performance of the terms of the Finance Documents (otherwise, in each case, than by reason of the relevant Security Agent’s, Receiver’s or Delegate’s gross negligence or wilful misconduct).

Each Security Agent and every Receiver and Delegate may, in priority to any payment to the Secured Parties, indemnify itself out of the Security Property in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 15.4 and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all moneys payable to it.

Continuing indemnity

COSTS AND EXPENSES

Transaction expenses

this Agreement and any other documents referred to in this Agreement or in a Transaction Security Document; and

any other Finance Documents executed after the date of this Agreement.

Amendment costs

an Obligor requests an amendment, waiver or consent;

an amendment is required pursuant to Clause 28.9 (Change of currency); or

an amendment or waiver is required under Clause 34.4 (Replacement of Rate),

Enforcement and preservation costs

GUARANTEE AND INDEMNITY

Guarantee and indemnity

Each Guarantor irrevocably and unconditionally jointly and severally:

guarantees to each Finance Party punctual performance by the Company of all its obligations under the Finance Documents (including, without limitation, all amounts which, but for any US Debtor Relief Law, would become due and payable and all interest accruing after the commencement of any proceeding under a US Debtor Relief Law at the rate provided for in the relevant Finance Document, whether or not allowed in any such proceeding);

undertakes with each Finance Party that whenever the Company does not pay any amount when due under or in connection with any Finance Document, that Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and

agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability it incurs as a result of the Company not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount payable by a Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 17 if the amount claimed had been recoverable on the basis of a guarantee.

Notwithstanding anything to the contrary herein, upon the occurrence of any Automatic Acceleration Event, any presentment, demand, protest or notice of any kind required by the foregoing clauses are expressly waived.

Continuing guarantee

Reinstatement

Waiver of defences

any time, waiver or consent granted to, or composition with, any Obligor or any other person;

the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group or such other person;

the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, execute, take up or enforce, any rights against, or security over assets of, any Obligor or any 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;

any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;

any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;

any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security;

any insolvency or similar proceedings; or

this Agreement or any other Finance Document not being executed by or binding upon any other party.

Immediate recourse

Appropriations

refrain from applying or enforcing any other moneys, security or rights held or received by that Finance 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 no Guarantor shall be entitled to the benefit of the same; and

hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor’s liability under this Clause 17.

Deferral of Guarantors’ rights

to be indemnified by an Obligor or any other person;

to claim any contribution from any other guarantor of or provider of security for any Obligor’s obligations under the Finance Documents or any other person;

to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party;

to bring legal or other proceedings for an order requiring any Obligor or any other person to make any payment, or perform any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under Clause 17.1 (Guarantee and indemnity);

to exercise any right of set-off against any Obligor or any other person; and/or

to claim or prove as a creditor of any Obligor or any other person in competition with any Finance Party.

Additional security

Guarantee Limitation - Fraudulent Conveyance

REPRESENTATIONS

Status

It is a corporation, duly incorporated and validly existing under the law of its jurisdiction of incorporation.

It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.

Binding obligations

the obligations expressed to be assumed by it in each Finance Document are legal, valid, binding and enforceable obligations; and

without limiting the generality of paragraph (a) above, each Transaction Security Document to which it is a party creates the security interests which that Transaction Security Document purports to create and those security interests are valid and effective.

Non-conflict with other obligations

any law or regulation applicable to it;

its or any of its Subsidiaries’ constitutional documents; or

any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries’ assets which might reasonably be expected to have a Material Adverse Effect.

Power and authority

Validity and admissibility in evidence

to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party;

to make the Finance Documents to which it is a party admissible in evidence in its Relevant Jurisdictions; and

for it and its Subsidiaries to carry on their business, and which are material,

Registration and stamping requirements

registration of statements containing the prescribed particulars of the Security created by the Singapore Debenture with the Accounting and Corporate Regulatory Authority of Singapore in accordance with the time frame set out in the Companies Act 1967 of Singapore;

the payment of Singapore stamp duty of S$500 on the execution of the Singapore Debenture within 14 days from the date of the Singapore Debenture;

the payment of Singapore stamp duty of S$10 on the declaration of trust set out in paragraph (b) of Clause 25.1 (The Agent and the Security Agents) within 14 days from the date of this Agreement;

the registration of each ROC Chattel Mortgage and each ROC Real Estate Mortgage with the relevant Taiwanese authorities;

the filing of UCC financing statements in respect of each US Security Document; and

the recording in the United States Patent and Trademark Office and/or the United States Copyright Office of a fully executed intellectual property security agreement supplemental in accordance with the terms of the US Security Agreement,

Governing law and enforcement

Subject to the Legal Reservations, the choice of the governing law of each of the Finance Documents to which it is a party will be recognised and enforced in its Relevant Jurisdictions.

Subject to the Legal Reservations, any judgment obtained in relation to a Finance Document to which it is a party in the jurisdiction of the governing law of that Finance Document will be recognised and enforced in its Relevant Jurisdictions.

Deduction of Tax

No filing or stamp taxes

No default

No Default or Event of Default is continuing or might reasonably be expected to result from the making of any Utilisation.

No other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on it or any of its Subsidiaries or to which its (or any of its Subsidiaries’) assets are subject which might have a Material Adverse Effect.

No misleading information

Any factual information contained in or provided by any member of the Group for the purposes of the Information Memorandum was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated;

nothing has occurred or been omitted from the Information Memorandum and no information has been given or withheld that results in the information contained in the Information Memorandum being untrue or misleading in any material respect; and

all information (other than the Information Memorandum) supplied by any member of the Group was true, complete and accurate in all material respects as at the date it was given and was not misleading in any respect,

Financial statements

Each Obligor’s financial statements most recently supplied to the Agent (which, at the date of this Agreement, are the Original Financial Statements) were prepared in accordance with GAAP consistently applied save to the extent expressly disclosed in such financial statements or as otherwise expressly permitted by this Agreement.

Each Obligor’s financial statements most recently supplied to the Agent (which, at the date of this Agreement, are the Original Financial Statements) give a true and fair view of (if audited) or fairly represent (if unaudited) its financial condition and operations for the period to which they relate, save to the extent expressly disclosed in such financial statements.

There has been no material adverse change in its or any Obligor’s business or financial condition (or the business or consolidated financial condition of the Group, in the case of the Parent) since the date of the Original Financial Statements.

Each Finance Party acknowledges that an Obligor may be required to restate historical financial statements and, without prejudice to any other terms of the Finance Documents, that such restatements will not result in a Default or Event of Default under this Clause 18.12 only.

Pari passu ranking

No proceedings

No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency which would reasonably be expected to have a Material Adverse Effect has or have (to the best of its knowledge and belief) been started or threatened against it or any of its Subsidiaries.

No judgment or order of a court, arbitral body or agency which might reasonably be expected to have a Material Adverse Effect has (to the best of its knowledge and belief) been made against it or any of its Subsidiaries.

Authorised signatures

Environmental laws

Each member of the Group is in compliance with Clause 21.8 (Environmental compliance) and to the best of its knowledge and belief no circumstances have occurred which would prevent such compliance in a manner or to an extent which has or is reasonably likely to have a Material Adverse Effect.

No Environmental Claim has been commenced or (to the best of its knowledge and belief) is threatened against any member of the Group where that claim has or is reasonably likely, if determined against that member of the Group, to have a Material Adverse Effect.

Ranking of Security

Good title to assets

Legal and beneficial ownership

Sanctions

Anti-bribery law

Anti-money Laundering

Anti-Terrorism Laws

is in violation of any Anti-Terrorism Law;

is a Designated Person; or

deals in any property or interest in property blocked pursuant to any Anti-Terrorism Law.

ERISA Compliance

No ERISA Event has occurred, is continuing or is reasonably likely to occur that would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

Each Employee Plan has been operated and administered in accordance with its terms, ERISA, the Code and applicable law, and is in compliance in form with ERISA and the Code (including, where intended to be qualified under Section 401(a) of the Code, such Employee Plan has received a favorable determination (or an opinion or advisory letter from the IRS affording equivalent reliance) or an application for such a letter is currently being processed by the IRS with respect thereto) and all other applicable federal, state or local laws and regulations save where any failure to comply would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

There are no actions, suits or claims pending against or involving an Employee Plan (other than routine claims for benefits) or, to the knowledge of any Obligor or any ERISA Affiliate, threatened, which would reasonably be expected to be asserted successfully against any Employee Plan and, if so asserted successfully, would reasonably be expected either singly or in the aggregate to have a Material Adverse Effect.

To the knowledge of each Obligor and each ERISA Affiliate, no Multiemployer Plan is or is reasonably likely to become insolvent for purposes of Title IV of ERISA, except where any such insolvency would not reasonably be expected to have a Material Adverse Effect.

Federal Reserve Regulations

No Obligor is engaged or will engage, principally or as one of its important activities, in the business of purchasing or carrying Margin Stock or extending credit for the purpose of purchasing or carrying Margin Stock.

None of the proceeds of the Loans or other extensions of credit under this Agreement will be used, directly or indirectly, for the purpose of buying or carrying any Margin Stock, for the purpose of reducing or retiring any Financial Indebtedness that was originally incurred to buy or carry any Margin Stock or for any other purpose which might cause all or any Loans or other extensions of credit under this Agreement to be considered a “purpose credit” within the meaning of Regulation U or Regulation X.

Investment Companies

Immunity

Repetition

the date of each Utilisation Request;

the first day of each Interest Period; and

in the case of an Additional Guarantor, the day on which that Additional Guarantor accedes to this Agreement under an Accession Letter.

INFORMATION UNDERTAKINGS

Financial statements

as soon as the same become available, but in any event within 120 days after the end of each of its financial years, the Parent’s audited consolidated financial statements for that financial year;

as soon as the same become available, but in any event within 270 days after the end of each of its financial years, the audited consolidated financial statements of each Obligor (other than the Parent) for that financial year; and

as soon as the same become available, but in any event within 60 days after the end of each quarter of each of its financial years (other than the last quarter of each such year), the Parent’s consolidated financial statements for that financial quarter and the consolidated financial statements of each other Obligor for that financial quarter.

Compliance Certificate

The Parent shall supply to the Agent, with each set of financial statements delivered pursuant to paragraph (a) or (c) of Clause 19.1 (Financial statements), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 20 (Financial Covenants) and computations as to the Utilisation Threshold as at the date as at which those financial statements were drawn up.

Each Compliance Certificate delivered pursuant to paragraph (a) above shall be signed by a Senior Officer.

Requirements as to financial statements

Each set of financial statements delivered by the Parent pursuant to Clause 19.1 (Financial statements) shall be certified by a Senior Officer of the Parent as giving a true and fair view of (in the case of any such financial statements which are audited) or fairly representing (in the case of any such financial statements which are unaudited) the relevant Obligor’s financial condition as at the date as at which those financial statements were drawn up.

The Parent shall procure that each set of financial statements delivered pursuant to Clause 19.1 (Financial statements) is prepared using GAAP, accounting practices and financial reference periods consistent with those applied in the preparation of its Original Financial Statements unless, in relation to any set of financial statements, it notifies the Agent that there has been a change in GAAP, the accounting practices or reference periods and it delivers to the Agent:

a description of any change necessary for those financial statements to reflect the GAAP, accounting practices and reference periods upon which the Original Financial Statements were prepared; and

sufficient information, in form and substance as may be reasonably required by the Agent, to enable the Lenders to determine whether Clause 20 (Financial Covenants) has been complied with and make an accurate comparison between the financial position indicated in those financial statements and the Original Financial Statements.

Any reference in this Agreement to those financial statements shall be construed as a reference to those financial statements as adjusted to reflect the basis upon which the Original Financial Statements were prepared.

ERISA-related information

promptly upon written request of the Agent, deliver to the Agent copies of each annual and other return, report or valuation with respect to each Employee Plan or Multiemployer Plan, as filed with any applicable Governmental Agency; and

promptly following receipt thereof, deliver to the Agent copies of:

any documents described in Sections 101(k) or 101(l) of ERISA that any Obligor or any ERISA Affiliate may request with respect to any Multiemployer Plan; and

any documents described in Section 101(f) of ERISA that any Obligor or any ERISA Affiliate receives with respect to any Multiemployer Plan; and

promptly and in any event within 15 Business Days after any Obligor or any ERISA Affiliate becomes aware that an ERISA Event has occurred and that such ERISA Event has or would reasonably be expected to have a Material Adverse Effect, deliver to the Agent a statement describing such ERISA Event and the action, if any, that such Obligor or such ERISA Affiliate has taken and proposes to take with respect thereto.

Information: miscellaneous

all documents dispatched by the Parent to its public shareholders (or any class of them) or by any member of the Group to its creditors generally at the same time as they are dispatched;

promptly, any announcement, notice or other document relating specifically to the Parent posted onto any electronic website maintained by any stock exchange on which shares in or other securities of the Parent are listed or any electronic website required by any such stock exchange to be maintained by or on behalf of the Parent;

promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against any member of the Group, and which would reasonably be expected to have a Material Adverse Effect;

promptly, such information as a Security Agent may reasonably require about the Security Assets and compliance of the Obligors with the terms of any Transaction Security Documents;

promptly upon becoming aware of them, the details of any judgment or order of a court, arbitral body or agency which is made against any member of the Group, and which would reasonably be expected to have a Material Adverse Effect;

promptly upon becoming aware of any Threshold Breach, details of that Threshold Breach, including the amount of the prepayment required under Clause 7.3 (Utilisation Threshold);

promptly, such further information regarding any member of the Group as any Finance Party (through the Agent) may reasonably request;

promptly, notice of any change in authorised signatories of any Obligor signed by a director or company secretary of such Obligor accompanied by specimen signatures of any new authorised signatories;

promptly and, in any event, at the same time as such filing, the details of any acquisition for which the Parent is required to file a Form 8-K with the U.S. Securities and Exchange Commission; and

promptly and, in any event, on or prior to the date of each anniversary of the date of this Agreement, a list of Chattels (including the invoices relating to such Chattels and the categories of such Chattels).

Notification of default

Each Obligor shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).

Promptly upon a request by the Agent, the Company shall supply to the Agent a certificate signed by two of its Senior Officers on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).

Direct electronic delivery by Company

“Know your customer” checks

Each Obligor shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any other Finance Party (including on behalf of any prospective new Finance Party)) in order for the Agent, such other Finance Party or any prospective new Finance Party to conduct all “know your customer” and other similar procedures that it is required (or deems desirable) to conduct.

Each other Finance Party shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the Agent to conduct all “know your customer” and other similar procedures that it is required (or deems desirable) to conduct.

FINANCIAL COVENANTS

Financial definitions