DEED OF RELEASE
THIS DEED OF RELEASE (this “Deed”) is made on ________________,
BY:
- THE PARTIES listed in Part 1 of Schedule 1 (The Lenders) as Senior Lenders and in Part 2 of Schedule 1 (The Lenders) as Junior Lenders (collectively, the “Lenders”);
- (ADMINISTRATIVE PARTY), in its respective capacities as the Agent, the Security Agent, the Account Bank, the Calculation Agent, the Hedge Counterparty and the Arranger (the “Administrative Party”);
- THE PARTIES listed in Schedule 2 (Additional Lender Parties) as Additional Lender Parties (the “Additional Lender Parties”);
- BORROWER (the “(BORROWER)”);
- THE PARTIES listed in Part 1 of Schedule 3 (The Obligors) as guarantors (the “Guarantors”) and in Part 2 of Schedule 3 (The Obligors) as the Additional Obligors (collectively, and together with (BORROWER), the “Obligors”); and
- THE PARTIES listed in Schedule 4 (Additional Company Parties) as Additional Company Parties (the “Additional Company Parties”),
(each a “Party”, and collectively, the “Parties”).
WHEREAS
(A) Pursuant to a facility agreement dated …..between, amongst others, (BORROWER) as borrower, and (Administrative Party), as agent, the Lenders have made available to (BORROWER) certain term loan facilities in the aggregate principal amount of XXX (as amended, novated, supplemented, extended, replaced or restated prior to the date of this Deed and from time to time, the “(BORROWER) Facility Agreement”).
(B) In connection with the (BORROWER) Facility Agreement, the Guarantors agreed to guarantee the payment and discharge by (BORROWER) and the other Obligors of their respective obligations (including payment obligations) under or in connection with any Finance Document (as defined in the (BORROWER) Facility Agreement).
(C) In connection with the (BORROWER) Facility Agreement, all the Obligors have granted or created the Transaction Security (as defined in the (BORROWER) Facility Agreement) as security for the payment and discharge by (BORROWER) and the other Obligors of their respective obligations (including payment obligations) under or in connection with any Finance Document.
(D) In consideration of (Party) incurring and assuming the liabilities under a facility agreement dated [..] 2010 (the “(Party) Facility Agreement”) and the reciprocal releases referred to in Recital (E) below, the Lender Parties (as defined below) have agreed to release, terminate, cancel and discharge any and all liabilities of, and any and all Security granted by, the Company Parties (as defined below) under or in connection with the (BORROWER) Facility Agreement and the Facility (as defined in the (BORROWER) Facility Agreement) and otherwise agreed to release all other claims referred to in this Deed.
(E) In consideration of the restructuring of the Facility and the reciprocal releases referred to in Recital (D) above, the Company Parties have agreed to release, terminate, cancel and discharge any and all liabilities of the Lender Parties under or in connection with the (BORROWER) Facility Agreement and the Facility and otherwise agreed to release all other claims referred to in this Deed.
(F) The Lenders constitute all of the lenders under the (BORROWER) Facility Agreement on the date of this Deed.
(G) The Lender Parties intend that this Deed shall take effect as a deed and shall operate as a full and effective release of all the claims against the Company Parties as more particularly described below.
(H) The Company Parties intend that this Deed shall take effect as a deed and shall operate as a full and effective release of all the claims against the Lender Parties as more particularly described below.
NOW THIS DEED WITNESSETH as follows:
1. DEFINITION
Unless the context requires otherwise, words and expressions defined in the (BORROWER) Facility Agreement and which are not defined in this Deed shall bear the same meanings when used in this Deed. In addition:
“Company Parties” means collectively, (BORROWER), all other Obligors except (BORROWER), and the Additional Company Parties, and “Company Party” means any one of them;
“Lender Parties” means collectively, the Lenders, the Administrative Party and the Additional Lender Parties, and “Lender Party” means any one of them; and
“Release Date” means the date on which each of the following events shall have occurred:
(a) the (PARTY) Facility Agreement is executed by all of the parties to it;
(b) the Effective Date (as defined in the (PARTY) Facility Agreement) has occurred;
(c) the scheme of arrangement to be proposed on or about [insert proposed date for creditors voting] in respect of (BORROWER) has been approved by the percentage of creditors required under section 210 of the Singapore Companies Act, and such scheme of arrangement having been approved by the relevant court in Singapore; and
(d) each transfer of shares contemplated under the Share Contribution Agreement (as defined in the (XXX) Facility Agreement) has completed.
2. RELEASE
2.1 Release of Company Parties
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the Lender Parties, each of the Lender Parties, for itself and on behalf of each of their respective former, current, and future, direct and indirect (to the extent applicable) parents, subsidiaries, divisions, affiliates, shareholders, principals, members, partners, directors, managers, officers, employees, financial or investment advisors, consultants, bankers, insurers, attorneys, legal advisors, agents and families and the heirs, executors, successors and assigns of each of the foregoing, with effect from the Release Date irrevocably and unconditionally waives, releases, and forever discharges each Company Party from any and all claims, rights, causes of action, obligations or liabilities whatsoever, whether known or unknown, fixed, contingent or conditional, joint or several, in law or in equity and howsoever described or arising[1], in relation to any facts, transactions, occurrences, representations, acts, or omissions relating to or arising or possibly arising under or in connection with the (BORROWER) Facility Agreement and all other agreements, documents, notices or writings (in each case howsoever described or arising) delivered thereunder or in connection therewith or otherwise in any manner related thereto PROVIDED HOWEVER that the release of the Company Parties contained herein shall not affect any future obligations arising under the (XXX) Facility Agreement and the documents delivered thereunder.
2.2 Release of Lender Parties
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the Company Parties, each of the Company Parties, for itself and on behalf of each of their respective former, current, and future, direct and indirect (to the extent applicable) parents, subsidiaries, divisions, affiliates, shareholders, principals, members, partners, directors, managers, officers, employees, financial or investment advisors, consultants, bankers, insurers, attorneys, legal advisors, agents and families and the heirs, executors, successors and assigns of each of the foregoing, with effect from the Release Date irrevocably and unconditionally waives, releases, and forever discharges each Lender Party from any and all claims, rights, causes of action, obligations or liabilities whatsoever, whether known or unknown, fixed, contingent or conditional, joint or several, in law or in equity and howsoever described or arising, in relation to any facts, transactions, occurrences, representations, acts, or omissions relating to or arising or possibly arising under or in connection with the (BORROWER) Facility Agreement and all other agreements, documents, notices or writings (in each case howsoever described or arising) delivered thereunder or in connection therewith or otherwise in any manner related thereto PROVIDED HOWEVER that the release of the Lender Parties contained herein shall not affect any future obligations arising under the (XXX) Facility Agreement and the documents delivered thereunder.
3. THIRD PARTY BENEFIT
Unless expressly provided to the contrary, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Deed.
4. FURTHER ASSURANCE
4.1 Further assurance by Lender Parties
Each of the Lender Parties hereby agrees and undertakes with each of the Company Parties to take such actions and steps and enter into such agreements and documents as may from time to time be necessary in order to give effect to the releases, waivers and discharges that are provided for in this Deed.
4.2 Further assurance by Company Parties
Each of the Company Parties hereby agrees and undertakes with each of the Lender Parties to take such actions and steps and enter into such agreements and documents as may from time to time be necessary in order to give effect to the releases, waivers and discharges that are provided for in this Deed.
5. COUNTERPARTS
This Deed may be executed in any number of counterparts (including by facsimile or other electronic transmission), all of which taken together shall constitute one and the same instrument. Any Party may enter into this Deed by executing any such counterpart. Each counterpart shall constitute an original signature to this Deed.
6. PARTIAL VALIDITY
If, at any time, any provision of this Deed is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, such provision shall be inapplicable and deemed omitted only to the extent of illegality, invalidity or unenforceability but neither the legality, validity or enforceability of the remaining provisions of this Deed nor of such provision under the law of any other jurisdiction shall in any way be affected or impaired thereby.
7. GOVERNING LAW
This Deed shall be governed by and construed in accordance with English law.
IN WITNESS whereof this Deed has been executed as a deed and delivered by each of the Parties hereto on the date stated at the beginning of this Deed.
SCHEDULE 1
The Lenders
Senior Lenders
| Name of Senior Lender |
Junior Lenders
| Name of Junior Lender |
SCHEDULE 2
Additional Lender Parties
| No. | Name | Description / Designation |
SCHEDULE 3
The Obligors
Guarantors
| Name of Guarantor | Jurisdiction of incorporation | Registration Number |
Additional Obligors
| Name | Jurisdiction of incorporation | Registration Number |
SCHEDULE 4
Additional Company Parties
| No. | Name | Description / Designation |
EXECUTION
The Senior Lenders
SIGNED, SEALED AND DELIVERED )
as a DEED )
by: )
for and on behalf of )
[NAME OF SENIOR LENDER] )
In the presence of:
Name:
Address:
SIGNED, SEALED AND DELIVERED )
as a DEED )
by: )
for and on behalf of )
[NAME OF SENIOR LENDER] )
In the presence of:
Name:
Address:
The Junior Lenders
SIGNED, SEALED AND DELIVERED )
as a DEED )
by: )
for and on behalf of )
[NAME OF JUNIOR LENDER] )
In the presence of:
Name:
Address:
SIGNED, SEALED AND DELIVERED )
as a DEED )
by: )
for and on behalf of )
[NAME OF JUNIOR LENDER] )
In the presence of:
Name:
Address:
The Administrative Party
SIGNED, SEALED AND DELIVERED )
as a DEED )
by: )
for and on behalf of )
(ADMINISTRATIVE PARTY), )
In the presence of:
Name:
Address:
The Additional Lender Parties
SIGNED, SEALED AND DELIVERED )
as a DEED )
by: )
[NAME OF ADDITIONAL LENDER PARTY] )
In the presence of:
Name:
Address:
(BORROWER)
SIGNED, SEALED AND DELIVERED )
as a DEED )
by: )
for and on behalf of )
(BORROWER) )
In the presence of:
Name:
Address:
The Guarantors
SIGNED, SEALED AND DELIVERED )
as a DEED )
by: )
for and on behalf of )
In the presence of:
Name:
Address:
SIGNED, SEALED AND DELIVERED )
as a DEED )
by: )
for and on behalf of ).
In the presence of:
Name:
Address:
SIGNED, SEALED AND DELIVERED )
as a DEED )
by: )
for and on behalf of )
In the presence of:
Name:
Address:
SIGNED, SEALED AND DELIVERED )
as a DEED )
by: )
for and on behalf of )
In the presence of:
Name:
Address:
SIGNED, SEALED AND DELIVERED )
as a DEED )
by: )
for and on behalf of )
In the presence of:
Name:
Address:
SIGNED, SEALED AND DELIVERED )
as a DEED )
by: )
for and on behalf of )
In the presence of:
Name:
Address:
SIGNED, SEALED AND DELIVERED )
as a DEED )
by: )
for and on behalf of )
In the presence of:
Name:
Address:
SIGNED, SEALED AND DELIVERED )
as a DEED )
by: )
for and on behalf of )
In the presence of:
Name:
Address:
SIGNED, SEALED AND DELIVERED )
as a DEED )
by: )
for and on behalf of )
In the presence of:
Name:
Address:
SIGNED, SEALED AND DELIVERED )
as a DEED )
by: )
for and on behalf of )
)
In the presence of:
Name:
Address:
Additional Obligors
Signed by legal representative: [Company seal to be impressed]
Name:
Signed by legal representative: [Company seal to be impressed]
Name:
The Additional Company Parties
SIGNED, SEALED AND DELIVERED )
as a DEED )
by: )
)
[NAME OF ADDITIONAL COMPANY PARTY] )
In the presence of:
Name:
Address:
[1] The release should not go beyond the (BORROWER) Facilty Agreement and should not include unrelated claims. Any releases must be mutual.
