Exhibit 4.6
Confidential Treatment Requested:
The portions of this document marked by "xxxxx" have been omitted pursuant to a
request for confidential treatment and have been filed separately with the
Securities and Exchange Commission
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
ADVOCATES & SOLICITORS
CONFORMED COPY
Dated 23 December 2004
CHARTERED SEMICONDUCTOR MANUFACTURING LTD.
AS BORROWER
and
OVERSEA-CHINESE BANKING CORPORATION LIMITED
SUMITOMO MITSUI BANKING CORPORATION
AS ARRANGER
and
SUMITOMO MITSUI BANKING CORPORATION, SINGAPORE BRANCH
ACTING AS AGENT
FACILITY AGREEMENT
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ #▇▇-▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
TABLE OF CONTENTS
CLAUSE PAGE
1. DEFINITIONS AND INTERPRETATION................. 1
2. THE FACILITIES................................. 10
3. PURPOSE........................................ 11
4. CONDITIONS OF UTILISATION...................... 11
5. UTILISATION.................................... 11
6. REPAYMENT...................................... 12
7. PREPAYMENT AND CANCELLATION.................... 12
8. INTEREST....................................... 14
9. INTEREST PERIODS............................... 15
10. CHANGES TO THE CALCULATION OF INTEREST......... 16
11. FEES........................................... 17
12. TAX GROSS UP AND INDEMNITIES................... 17
13. INCREASED COSTS................................ 19
14. OTHER INDEMNITIES.............................. 21
15. MITIGATION BY THE LENDERS...................... 22
16. COSTS AND EXPENSES............................. 22
17. REPRESENTATIONS................................ 23
18. INFORMATION UNDERTAKINGS....................... 25
19. FINANCIAL COVENANTS............................ 26
20. GENERAL UNDERTAKINGS........................... 27
21. EVENTS OF DEFAULT.............................. 31
22. CHANGES TO THE LENDERS......................... 34
23. CHANGES TO THE BORROWER........................ 38
24. ROLE OF THE AGENT AND THE ARRANGER............. 38
25. CONDUCT OF BUSINESS BY THE FINANCE PARTIES..... 43
26. SHARING AMONG THE LENDERS...................... 44
27. PAYMENT MECHANICS.............................. 45
28. SET-OFF........................................ 47
29. NOTICES........................................ 47
30. CALCULATIONS AND CERTIFICATES.................. 49
31. PARTIAL INVALIDITY............................. 49
32. REMEDIES AND WAIVERS........................... 49
33. AMENDMENTS AND WAIVERS......................... 49
34. COUNTERPARTS................................... 50
35. GOVERNING LAW.................................. 50
THE SCHEDULES
SCHEDULE PAGE
SCHEDULE 1 The Original Lenders.......................... 51
SCHEDULE 2 Conditions precedent.......................... 52
SCHEDULE 3 Requests...................................... 53
SCHEDULE 4 Form of Transfer Certificate.................. 55
SCHEDULE 5 Form of Compliance Certificate................ 57
SCHEDULE PAGE
SCHEDULE 6 Form of Lender Accession Notice(s) and Commitment Increase Notice(s)..... 58
SCHEDULE 7 Timetables................................................................ 60
THIS AGREEMENT is dated 23 December 2004 and made between:
(1) CHARTERED SEMICONDUCTOR MANUFACTURING LTD. (the "BORROWER");
(2) OVERSEA-CHINESE BANKING CORPORATION LIMITED and SUMITOMO MITSUI BANKING
CORPORATION, (whether acting individually or together, the "ARRANGER");
(3) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as lenders (the "ORIGINAL
LENDERS"); and
(4) SUMITOMO MITSUI BANKING CORPORATION, SINGAPORE BRANCH, as agent of the
other finance parties (the "AGENT").
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCEDING LENDER" means any financial institution which has executed a
Lender Accession Notice.
"ACCESSION DATE" means, in relation to a Lender Accession Notice executed
and delivered by an Acceding Lender, the date specified (and defined) as
such in that Lender Accession Notice, being the date on and from which
that Acceding Lender's undertaking, to be bound by this Agreement as if it
had originally been a party hereto with the Facility B Commitment
specified therein, takes or is to take effect.
"AFFILIATE" means, in relation to any person, a Subsidiary of that person
or a Holding Company of that person or any other Subsidiary of that
Holding Company.
"ASSOCIATED COMPANY" means, in relation to the Borrower, a corporation in
respect of which the Borrower beneficially owns, directly or indirectly,
at least 20 per cent. of the whole of its issued and paid-up capital.
"AUTHORISATION" means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration.
"AVAILABILITY PERIOD" means:
(a) in relation to Facility A, the period from and including the date of
this Agreement to and including the date which is three Months after
the date of this Agreement; and
(b) in relation to Facility B, the period from and including the date of
this Agreement to and including the date which is 12 Months after
the date of this Agreement.
"AVAILABLE COMMITMENT" means, in relation to a Facility, a Lender's
Commitment under that Facility minus:
(a) the amount of its participation in any outstanding Loans under that
Facility; and
1
(b) in relation to any proposed Utilisation, the amount of its
participation in any Loans that are due to be made under that
Facility on or before the proposed Utilisation Date.
"AVAILABLE FACILITY" means, in relation to a Facility, the aggregate for
the time being of each Lender's Available Commitment in respect of that
Facility.
"BREAK COSTS" means the amount (if any) by which:
(a) the interest (which shall exclude the Margin in the computation of
Break Costs for the purposes of a prepayment pursuant to Clause
7.1(c)) which a Lender should have received for the period from the
date of receipt of all or any part of its participation in a Loan or
Unpaid Sum to the last day of the current Interest Period in respect
of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum
received been paid on the last day of that Interest Period,
exceeds:
(b) the amount which that Lender would be able to obtain by placing an
amount equal to the principal amount or Unpaid Sum received by it on
deposit with a leading bank in the London interbank market for a
period starting on the Business Day following receipt or recovery
and ending on the last day of the current Interest Period.
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are open for general business in Singapore and London and (in
relation to any date for payment or purchase of US Dollars) New York City.
"COMMITMENT" means a Facility A Commitment or Facility B Commitment.
"COMMITMENT INCREASE" means the increase, by a Lender of its Facility B
Commitment, pursuant to that Facility B Lender's delivery of its
Commitment Increase Notice pursuant to Clause 22.8 (Commitment Increase)
or, as the case may be, the amount specified (and defined) as such in that
Commitment Increase Notice.
"COMMITMENT INCREASE DATE" means, in relation to a Commitment Increase
Notice executed and delivered by a Facility B Lender, the date specified
(and defined) as such in that Commitment Increase Notice, being the date
on and from which that Facility B Lender's undertaking, to be bound by
this Agreement as if it had originally been a party hereto with the
Facility B Commitment in the amount equal to the Aggregate Facility B
Commitment specified (and defined) therein, takes or is to take effect.
"COMMITMENT INCREASE NOTICE" means a notice executed and delivered by any
Facility B Lender to the Agent, substantially in the form set out in Part
II of Schedule 6 (Form of Lender Accession Notice(s) and Commitment
Increase Notice(s)).
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form set
out in Schedule 5 (Form of Compliance Certificate).
2
"CONSOLIDATED NET WORTH" has the meaning given to it in Clause 19
(Financial Covenants).
"CONSOLIDATED TOTAL GROSS DEBT" has the meaning given to it in Clause 19
(Financial Covenants).
"CSP AGREEMENT" means the Credit Agreement dated 28 September 2000 made
between (1) Chartered Silicon Partners Pte Ltd, (2) the lead arrangers
named therein, (3) the arrangers named therein, (4) the co-arranger named
therein, (5) the lead manager named therein, (6) the manager named
therein, (7) the guarantor banks named therein, (8) the lending banks
named therein, (9) the agent named therein and (10) the security trustee
named therein.
"CSP DEBT SERVICE RESERVE ACCOUNT" means the deposit account opened and
maintained by the Borrower with the DSRA Account Bank (as defined in the
CSP Agreement), in accordance with the terms of the CSP Agreement.
"DEFAULT" means an Event of Default or any event or circumstance specified
in Clause 21 (Events of Default) which would (with the expiry of a grace
period and/or the giving of notice) be an Event of Default.
"EVENT OF DEFAULT" means any event or circumstance specified as such in
Clause 21 (Events of Default).
"EX-IM BANK" means the Export-Import Bank of the United States and
includes its successors in title.
"EX-IM BANK FACILITY" means the US$652,000,000 loan guarantee facility
granted or to be granted to the Borrower by Ex-Im Bank, to support the
funding provided or to be provided by ▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, N.A. to
finance the export of equipment and supply of services to the Borrower to
build Phase I of Fab 7.
"EX-IM BANK FACILITY ANTICIPATION ACCOUNT" means an account or accounts
opened and maintained or to be opened and maintained by the Borrower with
a financial institution nominated by the Borrower and reasonably
acceptable to Ex-Im Bank, in accordance with the terms of the Ex-Im Bank
Facility.
"FAB 7" means a silicon wafer fabrication facility in Singapore, owned by
the Borrower and designated as such by the Borrower.
"FACILITY" means Facility A or Facility B.
"FACILITY A" means the term loan facility made available under this
Agreement as described in Clause 2.1(a).
"FACILITY A COMMITMENT" means:
(a) in relation to an Original Lender, the amount in US Dollars set
opposite its name under the heading "Facility A Commitment" in
Schedule 1 (The Original Lenders) and the amount of any other
Facility A Commitment transferred to it under this Agreement; and
3
(b) in relation to any other Facility A Lender, the amount of any
Facility A Commitment transferred to it under this Agreement,
in each case, to the extent not cancelled, reduced or transferred by it
under this Agreement.
"FACILITY A LOAN" means a loan made or to be made under Facility A or the
principal amount outstanding for the time being of that loan.
"FACILITY A LENDER" means:
(a) any Original Lender; and
(b) any bank or financial institution which has become a Facility A
Lender in accordance with Clause 22 (Changes to the Lenders),
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
"FACILITY B" means the term loan facility made available under this
Agreement as described in Clause 2.1(b).
"FACILITY B COMMITMENT" means:
(a) in relation to any Acceding Lender, the amount in US Dollars
specified in any Lender Accession Notice delivered pursuant to
Clause 22.7 (Acceding Lender);
(b) in relation to any Facility B Lender which has executed and
delivered any Commitment Increase Notice(s), the amount specified
(and defined) as the Aggregate Facility B Commitment in the last
Commitment Increase Notice executed by that Facility B Lender; and
(c) in relation to any other Facility B Lender, the amount in US Dollars
of any Facility B Commitment transferred to it under this Agreement,
in each case, to the extent not cancelled, reduced or transferred by it
under this Agreement.
"FACILITY B LOAN" means a loan made or to be made under Facility B or the
principal amount outstanding for the time being of that loan.
"FACILITY B LENDER" means any bank or financial institution which has
become a Facility B Lender in accordance with Clause 22 (Changes to the
Lenders), which in each case has not ceased to be a Party in accordance
with the terms of this Agreement.
"FACILITY OFFICE" means the office or offices notified by a Lender to the
Agent in writing on or before the date it becomes a Lender (or, following
that date, by not less than five Business Days' written notice) as the
office or offices through which it will perform its obligations under this
Agreement.
4
"FEE LETTER" means any letter or letters dated on or about the date of
this Agreement between the Arranger and the Borrower (or the Agent and the
Borrower) setting out any of the fees referred to in Clause 11 (Fees).
"FINANCE DOCUMENT" means this Agreement, any Fee Letter and any other
document designated as such by the Agent and the Borrower.
"FINANCE PARTY" means the Agent, the Arranger or a Lender.
"FINANCIAL INDEBTEDNESS" means, in relation to any person, any
indebtedness of that person for or in respect of:
(a) moneys borrowed by that person;
(b) any amount raised by acceptance under any acceptance credit facility
granted to that person;
(c) any amount raised by that person pursuant to any note purchase
facility or the issue of bonds, notes, debentures, loan stock or any
similar instrument;
(d) the amount of any liability of that person in respect of any lease
or hire purchase contract which would, in accordance with GAAP, be
treated as a finance or capital lease;
(e) receivables sold or discounted by that person (other than any
receivables to the extent they are sold or discounted on a
non-recourse basis);
(f) any amount raised by that person under any other transaction
(including any forward sale or purchase agreement) required by GAAP
to be shown as a borrowing in the audited consolidated balance sheet
of the Group;
(g) for the purpose of Clause 21.5 (Cross default) any derivative
transaction entered into by that person 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 shall be taken into account);
(h) shares of that person which are expressed to be redeemable;
(i) for the purpose of Clause 21.5 (Cross default) any counter-indemnity
obligation of that person 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
(j) the amount of any liability of that person in respect of any
guarantee or indemnity given by that person for any indebtedness of
any other person for or in respect of the items referred to in
paragraphs (a) to (f) and in paragraph (h) above in relation to such
other person.
"GAAP" means generally accepted accounting principles, standards and
practices in the United States.
5
"GOVERNMENTAL AGENCY" means any government or any governmental agency,
semi-governmental or judicial entity or authority (including, without
limitation, any stock exchange or any self-regulatory organisation
established under any law or regulation).
"GROUP" means the Borrower and its Subsidiaries for the time being.
"HOLDING COMPANY" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
"INTEREST PERIOD" means, in relation to a Loan, each period determined in
accordance with Clause 9 (Interest Periods) and, in relation to an Unpaid
Sum, each period determined in accordance with Clause 8.3 (Default
interest).
"INTERNATIONAL INVESTMENT SECURITIES" means any bonds, notes, debentures,
debenture stocks, loan stocks, certificates or other instruments
evidencing indebtedness (excluding, for the avoidance of any doubt, any
loans from banks or other financial institutions or lenders) with a
maturity of greater than one year and which (a) are, or are intended to
be, listed, quoted or traded on any stock exchange or in any securities
market (including, without limitation, any over-the-counter market) and
(b) either (i) are by their terms payable, or confer a right to receive
payment, in any currency other than Singapore Dollars or (ii) are
denominated in Singapore Dollars and in respect of which more than 50 per
cent. of the aggregate principal amount of the offering of such
International Investment Securities is initially distributed outside
Singapore by or with the consent of the Borrower.
"LENDER" means a Facility A Lender or a Facility B Lender.
"LENDER ACCESSION NOTICE" means a notice executed and delivered by any
Acceding Lender to the Agent, substantially in the form set out in Part I
of Schedule 6 (Form of Lender Accession Notice(s) and Commitment Increase
Notice(s)).
"LIBOR" means, in relation to any Loan:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for US Dollars for the Interest
Period of that Loan) the arithmetic mean of the rates (rounded
upwards to four decimal places) as supplied to the Agent at its
request quoted by the Reference Banks to leading banks in the London
interbank market,
as of the Specified Time on the Quotation Day for the offering of deposits
in US Dollars for a period comparable to the Interest Period for that
Loan.
"LOAN" means a Facility A Loan or a Facility B Loan.
"MAJORITY LENDERS" means:
(a) if there are no Loans then outstanding, a Lender or Lenders (or, if
the Total Commitments do not exceed US$250,000,000 and there is more
than one Lender, then two or more Lenders) whose Commitments
aggregate more than 66 2/3% of the Total Commitments (or, if the
Total Commitments have been
6
reduced to zero, aggregated more than 66 2/3% of the Total
Commitments immediately prior to the reduction); or
(b) at any other time, a Lender or Lenders (or, if the Total Commitments
do not exceed US$250,000,000 and there is more than one Lender, then
two or more Lenders) whose participations in the Loans then
outstanding aggregate more than 662/3% of all the Loans then
outstanding.
"MARGIN" means XXXXX per cent. per annum.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on:
(a) the financial condition or business of the Borrower or on the
consolidated financial condition or business of the Group taken as a
whole; or
(b) the ability of the Borrower to perform and comply with its payment
or other material obligations under any Finance Document.
"MATERIAL SUBSIDIARY" means any of the Borrower's Subsidiaries whose
consolidated net revenues or consolidated net assets (as shown on the most
recent audited consolidated financial statements of such Subsidiary),
represents 10 per cent. or more of the consolidated net revenues or, as
the case may be, the consolidated net assets of the Borrower, as shown on
the most recent audited consolidated financial statements of the Borrower.
"MONTH" means a period starting on one day in a calendar month and ending
on the numerically corresponding day in the next calendar month, except
that:
(a) if the numerically corresponding day is not a Business Day, that
period shall end on the next Business Day in that calendar month in
which that period is to end if there is one, or if there is not, on
the immediately preceding Business Day; and
(b) if there is no numerically corresponding day in the calendar month
in which that period is to end, that period shall end on the last
Business Day in that calendar month.
The above rules will only apply to the last Month of any period.
"ORIGINAL FINANCIAL STATEMENTS" means the audited consolidated financial
statements of the Group for the financial year ended 31 December 2003.
"PARTY" means a party to this Agreement.
"QUOTATION DAY" means, in relation to any period for which an interest
rate is to be determined, two Business Days before the first day of that
period.
"REFERENCE BANKS" means the principal London offices of Oversea-Chinese
Banking Corporation Limited, Sumitomo Mitsui Banking Corporation and Bank
of America, National Association or such other banks as may, by the mutual
agreement between the Agent and the Borrower, be appointed by the Agent.
7
"REPAYMENT DATES" means the dates which are 30, 36, 42, 48, 54 and 60
Months after the first Utilisation Date.
"REPEATING REPRESENTATIONS" means each of the representations set out in
Clauses 17.1 (Status) to 17.4 (Power and authority), 17.7 (No default) and
17.10 (Pari passu ranking) to 17.12 (No proceedings pending or
threatened).
"SCREEN RATE" means the British Bankers' Association Interest Settlement
Rate for US Dollars for the relevant period, currently displayed on page
3750 of the Telerate screen. If the agreed page is replaced or service
ceases to be available, the Agent may specify another page or service
displaying the appropriate rate after consultation with the Borrower and
the Lenders.
"SECURITY" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement or
arrangement having a similar effect.
"SELECTION NOTICE" means a notice substantially in the form set out in
Part II of Schedule 3 (Requests) given in accordance with Clause 9
(Interest Periods).
"SINGAPORE DOLLARS" or "S$" means Singapore dollars.
"SPECIFIED TIME" means a time determined in accordance with Schedule 7
(Timetables).
"SUBSIDIARY" means a subsidiary within the meaning of section 5 of the
Companies Act, Chapter 50 of Singapore.
"TAX" means any tax, levy, impost, duty or other charge or withholding of
a similar nature (including any penalty or interest payable in connection
with any failure to pay or any delay in paying any of the same).
"TEMASEK" means Temasek Holdings (Private) Limited, registration number
197401143C.
"TERMINATION DATE" means the date falling 60 Months after the first
Utilisation Date.
"TOTAL COMMITMENTS" means the aggregate of the Total Facility A
Commitments and the Total Facility B Commitments.
"TOTAL FACILITY A COMMITMENTS" means the aggregate of the Facility A
Commitments, being US$200,000,000 at the date of this Agreement.
"TOTAL FACILITY B COMMITMENTS" means the aggregate of the Facility B
Commitments.
"TRANSFER CERTIFICATE" means a certificate substantially in the form set
out in Schedule 4 (Form of Transfer Certificate) or any other form agreed
between the Agent and the Borrower.
"TRANSFER DATE" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer Certificate;
and
(b) the date on which the Agent executes the Transfer Certificate.
8
"UNENCUMBERED ASSETS" means, at any time, the assets of the Borrower which
are not subject to any Security.
"UNPAID SUM" means any sum due and payable but unpaid by the Borrower
under the Finance Documents.
"US DOLLARS" or "US$" means United States dollars.
"UTILISATION" means a utilisation of a Facility.
"UTILISATION DATE" means the date of a Utilisation, being the date on
which the relevant Loan is to be made.
"UTILISATION REQUEST" means a notice substantially in the form set out in
Part I of Schedule 3 (Requests).
1.2 CONSTRUCTION
(a) Unless a contrary indication appears, any reference in this
Agreement to:
(i) the "AGENT", the "ARRANGER", any "FINANCE PARTY", any
"LENDER", the "BORROWER" or any "PARTY" shall be construed so
as to include its successors in title, permitted assigns and
permitted transferees;
(ii) "ASSETS" includes present and future properties, revenues and
rights of every description;
(iii) one person being "CONTROLLED" by another means that that other
person (aa) owns directly or indirectly, more than 50 per
cent. of the whole of the issued share capital of any class of
the share capital of the Borrower which confers voting rights
or voting powers upon the holders of the share capital of such
class to the extent of their respective shareholdings or (bb)
has the ability, directly or indirectly, to influence any
decision of, or to direct or cause the direction of the
management and policies (including operations and maintenance
decisions) of that person;
(iv) a "FINANCE DOCUMENT" or any other agreement or instrument is a
reference to that Finance Document or other agreement or
instrument as amended or novated;
(v) "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;
(vi) a "PERSON" includes any person, firm, company, corporation,
government, state or agency of a state or any association,
trust or partnership (whether or not having separate legal
personality) or two or more of the foregoing;
(vii) a "REGULATION" includes any regulation, rule, official
directive, request or guideline (whether or not having the
9
force of law but if not having the force of law, which is
generally complied with by those to whom it is addressed) of
any governmental, intergovernmental or supranational body,
agency, department or regulatory, self-regulatory or other
relevant authority or organisation;
(viii) a provision of law is a reference to that provision as
amended or re-enacted; and
(ix) a time of day is a reference to Singapore time.
(b) Clause and Schedule headings are for ease of reference only.
(c) Unless a contrary indication appears, a term used in any other
Finance Document or in any notice or certificate given under or in
connection with any Finance Document has the same meaning in that
Finance Document, notice or certificate as in this Agreement.
(d) A Default is "CONTINUING" if it has not been remedied or waived.
1.3 THIRD PARTY RIGHTS
(a) Unless expressly provided to the contrary in this Agreement, a
person who is not a Party has no right under the Contracts (Rights
of Third Parties) Act, Chapter 53B of Singapore to enforce or to
enjoy the benefit of any term of this Agreement.
(b) Notwithstanding any terms of this Agreement the consent of any third
party is not required for any variation (including any release or
compromise of any liability under) or termination of this Agreement.
2. THE FACILITIES
2.1 THE FACILITIES
Subject to the terms of this Agreement:
(a) the Facility A Lenders make available to the Borrower a term loan
facility in an aggregate amount equal to the Total Facility A
Commitments; and
(b) the Facility B Lenders make available to the Borrower a term loan
facility in an aggregate amount equal to the Total Facility B
Commitments.
2.2 FINANCE PARTIES' RIGHTS AND OBLIGATIONS
(a) 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.
(b) 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 the
Borrower shall be a separate and independent debt.
10
(c) A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance
Documents.
3. PURPOSE
3.1 PURPOSE
The Borrower shall apply all amounts borrowed by it under each Facility
towards (a) repaying its existing borrowings or (b) its working capital
requirements.
3.2 MONITORING
No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
4. CONDITIONS OF UTILISATION
4.1 INITIAL CONDITIONS PRECEDENT
The Borrower may not deliver a Utilisation Request unless the Agent has
received all of the documents and other evidence listed in Schedule 2
(Conditions Precedent) in form and substance satisfactory to the Agent.
The Agent shall notify the Borrower and the Lenders promptly upon being so
satisfied.
4.2 FURTHER CONDITIONS PRECEDENT
The Lenders will only be obliged to comply with Clause 5.4 (Lenders'
participation) if on the date of the Utilisation Request and on the
proposed Utilisation Date:
(a) no Default is continuing or would result from the proposed Loan; and
(b) the Repeating Representations to be made by the Borrower are true in
all material respects.
5. UTILISATION
5.1 DELIVERY OF A UTILISATION REQUEST
The Borrower may utilise a Facility by delivery to the Agent of a duly
completed Utilisation Request not later than the Specified Time (or such
later time as the Lenders participating in that Facility may agree).
5.2 COMPLETION OF A UTILISATION REQUEST
(a) Each Utilisation Request is irrevocable and will not be regarded as having
been duly completed unless:
(i) it identifies the Facility to be utilised;
(ii) the proposed Utilisation Date is a Business Day within the
Availability Period applicable to that Facility;
(iii) the currency and amount of the Utilisation comply with Clause 5.3
(Currency and amount);
(iv) the proposed Interest Period complies with Clause 9 (Interest
Periods); and
11
(v) it specifies the account and bank (which must be in New York City)
to which the proceeds of the Utilisation are to be credited.
(b) Only one Loan may be requested in each Utilisation Request.
5.3 CURRENCY AND AMOUNT
(a) The currency specified in a Utilisation Request must be US Dollars.
(b) The amount of the proposed Loan must be a minimum of US$10,000,000
or a higher integral multiple of US$2,000,000 or, if less, the
Available Facility and in any event such that it is less than or
equal to the Available Facility.
5.4 LENDERS' PARTICIPATION
(a) If the conditions set out in this Agreement have been met, each
Lender shall make its participation in each Loan available by the
Utilisation Date through its Facility Office.
(b) 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.
(c) The Agent shall notify each Lender of the amount of each Loan and
the amount of its participation in that Loan by the Specified Time.
6. REPAYMENT
6.1 REPAYMENT OF LOANS
The Loans outstanding at the end of the Availability Period shall be
repaid in six equal semi-annual instalments. One instalment shall fall due
on each Repayment Date.
6.2 REBORROWING
The Borrower may not reborrow any part of a Facility which is repaid.
7. PREPAYMENT AND CANCELLATION
7.1 ILLEGALITY
If it becomes unlawful in Singapore or the jurisdiction of its head office
or its Facility Office for a Lender to perform any of its obligations as
contemplated by this Agreement or to fund or maintain its participation in
any Loan:
(a) that Lender shall promptly notify the Agent upon becoming aware of
that event;
(b) upon the Agent notifying the Borrower, the Commitment of that Lender
will be immediately cancelled; and
(c) the Borrower shall repay that Lender's participation in the Loans on
the last day of the Interest Period for each Loan occurring after
the Agent has notified the Borrower 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).
12
7.2 CHANGE OF CONTROL
If Temasek ceases (a) to be (directly or indirectly) the single largest
shareholder of the Borrower, (b) to control the Borrower or (c) to own
(directly or indirectly) at least 30 per cent. of the ordinary issued
shares of the Borrower:
(i) the Borrower shall promptly notify the Agent upon becoming aware of
that event;
(ii) the Borrower may not deliver a Utilisation Request and no Loan shall
be made available unless otherwise agreed by the Majority Lenders;
and
(iii) if the Majority Lenders so require, the Agent shall, by not less
than 30 days' notice to the Borrower, cancel the Facility and
declare all outstanding Loans, together with accrued interest, and
all other amounts accrued under the Finance Documents immediately
due and payable, whereupon the Facility will be cancelled and all
such outstanding amounts will become immediately due and payable.
7.3 UNDRAWN FACILITY
Any part of a Facility which is undrawn by the Borrower at close of
business in Singapore on the last day of its Availability Period shall be
deemed to have been cancelled by the Borrower.
7.4 VOLUNTARY CANCELLATION
The Borrower may, if it gives the Agent not less than five Business Days'
(or such shorter period as the Majority Lenders may agree) prior notice,
cancel the whole or any part (being a minimum amount of US$10,000,000 or a
higher integral multiple of US$1,000,000) of an Available Facility. Any
cancellation under this Clause 7.4 shall reduce the Commitments of the
Lenders rateably under that Facility.
7.5 VOLUNTARY PREPAYMENT OF LOANS
(a) The Borrower may, if it gives the Agent not less than five Business
Days' (or such shorter period as the Majority Lenders may agree)
prior notice, prepay the whole or any part of a Loan (but if in
part, being an amount that reduces the amount of that Loan by a
minimum amount of US$10,000,000 or a higher integral multiple of
US$1,000,000).
(b) A Loan may be prepaid on the last day of any of its Interest
Periods.
(c) Any prepayment under this Clause 7.5 shall satisfy the obligations
under Clause 6 (Repayment) in inverse chronological order.
7.6 RIGHT OF REPAYMENT AND CANCELLATION IN RELATION TO A SINGLE LENDER
(a) IF:
(i) any sum payable to any Lender by the Borrower is required to
be increased under paragraph (c) of Clause 12.2 (Tax
gross-up);
(ii) any Lender claims indemnification from the Borrower under
Clause 12.3 (Tax indemnity) or Clause 13.1 (Increased costs);
or
13
(iii) the rate notified by a Lender in relation to a particular
Interest Period under Clause 10.2(a)(ii) is higher than the
lowest rate notified by any other Lender under that Clause,
the Borrower may, whilst the circumstance giving rise to the
requirement or indemnification continues, give the Agent notice of
cancellation of the Commitment of that Lender and its intention to
procure the repayment of that Lender's participation in the Loans.
(b) On receipt of a notice referred to in paragraph (a) above, the
Commitment of that Lender shall immediately be reduced to zero.
(c) On the last day of each Interest Period which ends after the
Borrower has given notice under paragraph (a) above (or, if earlier,
the date specified by the Borrower in that notice), the Borrower
shall repay that Lender's participation in that Loan.
7.7 RESTRICTIONS
(a) Any notice of cancellation or prepayment given by any Party under
this Clause 7 shall 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.
(b) 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.
(c) The Borrower may not reborrow any part of a Facility which is
prepaid.
(d) The Borrower 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.
(e) No amount of the Total Commitments cancelled under this Agreement
may be subsequently reinstated.
(f) If the Agent receives a notice under this Clause 7 it shall promptly
forward a copy of that notice to either the Borrower or the affected
Lender(s), as appropriate.
8. INTEREST
8.1 CALCULATION OF INTEREST
The rate of interest on each Loan for each Interest Period is the
percentage rate per annum which is the aggregate of:
(a) the Margin; and
(b) the applicable LIBOR.
14
8.2 PAYMENT OF INTEREST
The Borrower shall pay accrued interest on each Loan on the last day of
each Interest Period.
8.3 DEFAULT INTEREST
(a) If the Borrower fails to pay any amount payable by it under a
Finance Document on its due date, interest shall accrue on the
overdue amount from the due date up to the date of actual payment
(both before and after judgment) at a rate which, subject to
paragraph (b) below, is the sum of 1.5 per cent. and the rate which
would have been payable if the overdue amount had, during the period
of non-payment, constituted a Loan for successive Interest Periods,
each of a duration selected by the Agent (acting reasonably). Any
interest accruing under this Clause 8.3 shall be immediately payable
by the Borrower on demand by the Agent.
(b) If any overdue amount consists of all or part of a Loan which became
due on a day which was not the last day of an Interest Period
relating to that Loan:
(i) the first Interest Period for that overdue amount shall have a
duration equal to the unexpired portion of the current
Interest Period relating to that Loan; and
(ii) the rate of interest applying to the overdue amount during
that first Interest Period shall be the sum of 1.5 per cent.
and the rate which would have applied if the overdue amount
had not become due.
(c) 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.
8.4 NOTIFICATION OF RATES OF INTEREST
The Agent shall promptly notify the Lenders and the Borrower of the
determination of a rate of interest under this Agreement.
9. INTEREST PERIODS
9.1 SELECTION OF INTEREST PERIODS
(a) The Borrower may select an Interest Period for a Loan in the
Utilisation Request for that Loan or (if the Loan has already been
borrowed) in a Selection Notice.
(b) Each Selection Notice for a Loan is irrevocable and must be
delivered to the Agent by the Borrower not later than the Specified
Time.
(c) If the Borrower fails to deliver a Selection Notice to the Agent in
accordance with paragraph (b) above, the relevant Interest Period
will be six Months.
15
(d) Subject to this Clause 9, the Borrower may select an Interest Period
of one, two, three or six Months or any other period agreed between
the Borrower and the Agent (acting on the instructions of all the
Lenders).
(e) An Interest Period for a Loan shall not extend beyond the
Termination Date. In addition, the Borrower may select an Interest
Period of less than one Month for any one or more Loans if
necessary, to ensure that there are sufficient Loans which have an
Interest Period ending on a Repayment Date for the Borrower to repay
the instalment due on that Repayment Date.
(f) Each Interest Period for a Loan shall start on the Utilisation Date
or (if already made) on the last day of its preceding Interest
Period.
(g) The first Interest Period for a Loan shall, subject to this Clause
9, end (in the case of the first Loan) on the date falling one, two,
three or six Months thereafter, as so selected by the Borrower, and
(in the case of any subsequent Loan) on the same date as the then
current Interest Period relating to the first Loan.
9.2 NON-BUSINESS DAYS
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).
10. CHANGES TO THE CALCULATION OF INTEREST
10.1 ABSENCE OF QUOTATIONS
Subject to Clause 10.2 (Market disruption), if LIBOR is to be determined
by reference to the Reference Banks but a Reference Bank does not supply a
quotation by the Specified Time on the Quotation Day, the applicable LIBOR
shall be determined on the basis of the quotations of the remaining
Reference Banks.
10.2 MARKET DISRUPTION
(a) If a Market Disruption Event occurs in relation to a Loan for any
Interest Period, then the rate of interest on each Lender's share of
that Loan for that Interest Period shall be the rate per annum which
is the sum of:
(i) the Margin; and
(ii) the rate notified to the Agent by that Lender as soon as
practicable and in any event before interest is due to be paid
in respect of that Interest Period, to be that which expresses
as a percentage rate per annum the cost to that Lender of
funding its participation in that Loan from whatever source it
may reasonably select.
(b) In this Agreement "MARKET DISRUPTION EVENT" means:
(i) at or about noon (London time) on the Quotation Day for the
relevant Interest Period the Screen Rate is not available and
none or only one
16
of the Reference Banks supplies a rate to the Agent to
determine LIBOR for US Dollars for the relevant Interest
Period; or
(ii) before close of business in Singapore on the Quotation Day for
the relevant Interest Period, the Agent receives notifications
from a Lender or Lenders (whose participations in a Loan
exceed 51 per cent. of that Loan) that the cost to it or them
of obtaining matching deposits in the London interbank market
would be in excess of LIBOR.
10.3 ALTERNATIVE BASIS OF INTEREST OR FUNDING
(a) If a Market Disruption Event occurs and the Agent or the Borrower so
requires, the Agent and the Borrower shall enter into negotiations
(for a period of not more than thirty days) with a view to agreeing
a substitute basis for determining the rate of interest.
(b) Any alternative basis agreed pursuant to paragraph (a) above shall,
with the prior consent of all the Lenders and the Borrower:
(i) be binding on all Parties;
(ii) be the basis upon which interest on each Lender's share of
that Loan for that Interest Period shall be determined and
paid; and
(iii) override and replace the rate of interest, determined under
Clause 10.2(a) on each Lender's share of that Loan for that
Interest Period.
10.4 BREAK COSTS
(a) The Borrower shall, within five Business Days of demand by a Finance
Party, pay to that Finance Party its Break Costs attributable to all
or any part of a Loan or an Unpaid Sum being paid by the Borrower on
a day other than the last day of an Interest Period for that Loan or
that Unpaid Sum.
(b) Each Lender shall, together with its demand made pursuant to
paragraph (a) above, provide a certificate confirming the amount,
and setting out the computation of its Break Costs for any Interest
Period in which they accrue.
11. FEES
11.1 MANAGEMENT FEE
The Borrower shall pay to the Agent (for the account of the Original
Lenders) a management fee in the amount and at the times agreed in a Fee
Letter.
11.2 AGENCY FEE
The Borrower shall pay to the Agent (for its own account) an agency fee in
the amount and at the times agreed in a Fee Letter.
12. TAX GROSS UP AND INDEMNITIES
12.1 DEFINITIONS
(a) In this Clause 12:
17
"PROTECTED PARTY" means a Finance Party which is or will be subject
to any liability, or required to make any payment, for or on account
of Tax in relation to a sum received or receivable (or any sum
deemed for the purposes of Tax to be received or receivable) under a
Finance Document.
"TAX CREDIT" means a credit against, relief or remission for, or
repayment of any Tax.
"TAX DEDUCTION" means a deduction or withholding for or on account
of Tax from a payment under a Finance Document.
"TAX PAYMENT" means an increased payment made by the Borrower to a
Finance Party under Clause 12.2 (Tax gross-up) or a payment under
Clause 12.3 (Tax indemnity).
(b) In this Clause 12 a reference to "DETERMINES" or "DETERMINED" means
a determination made reasonably by the person making that
determination.
12.2 TAX GROSS-UP
(a) The Borrower shall make all payments to be made by it without any
Tax Deduction, unless a Tax Deduction is required by law, in which
case the amount of the payment due from the Borrower shall be
increased to an amount which (after making any Tax Deduction) leaves
an amount equal to the payment which would have been due if no Tax
Deduction had been required.
(b) The Borrower or a Lender shall promptly upon becoming aware that the
Borrower 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. If the Agent receives such notification from a Lender
it shall promptly notify the Borrower.
(c) If the Borrower is required to make a Tax Deduction, it 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.
(d) Within thirty days of making either a Tax Deduction or any payment
required in connection with that Tax Deduction, the Borrower 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
has been paid to the relevant taxing authority.
12.3 TAX INDEMNITY
(a) The Borrower shall (within five Business Days of demand by the
Agent) pay to a Protected Party an amount equal to the loss,
liability or cost which that Protected Party determines has been
suffered for or on account of Tax by that Protected Party in respect
of a Finance Document.
(b) Paragraph (a) above shall not apply with respect to any Tax assessed
on a Finance Party:
18
(i) under the law of the jurisdiction in which that Finance Party
is incorporated; or
(ii) under the law of the jurisdiction in which that Finance
Party's Facility Office is located in respect of amounts
received or receivable in that jurisdiction,
if that Tax is calculated by reference to the net income received or
receivable (but not any sum deemed to be received or receivable) by
that Finance Party.
(c) A Protected Party making, or intending to make, a claim under
paragraph (a) above shall promptly notify the Agent of the event
which will give, or has given, rise to the claim, following which
the Agent shall promptly notify the Borrower in writing.
(d) A Protected Party shall, on receiving a payment from the Borrower
under this Clause 12.3, notify the Agent.
12.4 TAX CREDIT
If the Borrower makes a Tax Payment and the relevant Finance Party
determines that:
(a) a Tax Credit is attributable either to an increased payment of which
that Tax Payment forms part or to that Tax Payment; and
(b) that Finance Party has obtained and utilised that Tax Credit,
the Finance Party shall pay an amount to the Borrower which that Finance
Party determines will leave it (after that payment) in no better and no
worse position in respect of its worldwide Tax liabilities than it would
have been in had the Tax Payment not been required to be made by the
Borrower.
12.5 STAMP DUTIES
The Borrower shall, within five Business Days of demand, pay and indemnify
each Finance Party against any cost, loss or liability that Finance Party
incurs in relation to all stamp duty, registration and other similar Taxes
payable in respect of any Finance Document.
12.6 GOODS AND SERVICES TAX
The Borrower shall also within five Business Days of demand, in addition
to any amount payable by the Borrower to the relevant Finance Party under
a Finance Document, pay any goods and services, value added or similar Tax
payable in respect of that amount (and references in that Finance Document
to that amount shall be deemed to include any such Taxes payable in
addition to it).
13. INCREASED COSTS
13.1 INCREASED COSTS
(a) Subject to Clause 13.3 (Exceptions) and Clause 22.2 (Conditions of
assignment or transfer) the Borrower shall, within five Business
Days of a demand by the Agent, pay for the account of a Finance
Party the amount of
19
any Increased Costs incurred by that Finance Party or its Holding
Company as a result of (i) the introduction of or any change in (or
in the interpretation, administration or application of) any law or
regulation in Singapore or the jurisdiction of its head office,
Facility Office or Holding Company, in each case, after the date of
this Agreement or (ii) compliance with any law or regulation in
Singapore or the jurisdiction of its head office, Facility Office or
Holding Company made after the date of this Agreement.
(b) In this Agreement "INCREASED COSTS" means:
(i) a reduction in the rate of return from the Facility or on a
Finance Party's (or its Holding Company's) overall capital;
(ii) an additional or increased cost; or
(iii) a reduction of any amount due and payable under any Finance
Document,
which is incurred or suffered by a Finance Party or its Holding
Company to the extent that it is attributable to that Finance Party
having entered into its Commitment or funding or performing its
obligations under any Finance Document.
13.2 INCREASED COST CLAIMS
(a) A Finance Party 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
Borrower.
(b) Each Finance Party shall, together with its notification to the
Agent pursuant to paragraph (a) above, provide a certificate
confirming the amount of its Increased Costs.
13.3 EXCEPTIONS
(a) Clause 13.1 (Increased costs) does not apply to the extent any
Increased Cost is:
(i) attributable to a Tax Deduction required by law to be made by
the Borrower;
(ii) 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 (b) of Clause 12.3 (Tax indemnity) applied); or
(iii) attributable to the breach by the relevant Finance Party or
its Holding Company of any law or regulation or is an amount
which would not have been payable by the relevant Finance
Party or its Holding Company but for its negligence in failing
to comply with any law or regulation.
20
(b) In this Clause 13.3, a reference to a "TAX DEDUCTION" has the same
meaning given to the term in Clause 12.1 (Definitions).
14. OTHER INDEMNITIES
14.1 CURRENCY INDEMNITY
(a) If any sum due from the Borrower 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:
(i) making or filing a claim or proof against the Borrower; or
(ii) obtaining or enforcing an order, judgment or award in relation
to any litigation or arbitration proceedings,
the Borrower shall as an independent obligation, within five
Business Days of demand, indemnify each Finance Party to whom that
Sum is due against any cost, loss or liability arising out of or as
a result of the conversion including any discrepancy between (A) the
rate of exchange used to convert that Sum from the First Currency
into the Second Currency and (B) the rate or rates of exchange
available to that person at the time of its receipt of that Sum.
(b) The Borrower 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.
14.2 OTHER INDEMNITIES
The Borrower shall, within five Business Days of demand, indemnify each
Finance Party against any cost, loss or liability incurred by that Finance
Party as a result of:
(a) the occurrence of any Event of Default;
(b) a failure by the Borrower to pay any amount due under a Finance
Document on its due date, including without limitation, any cost,
loss or liability arising as a result of Clause 26 (Sharing among
the Lenders);
(c) funding, or making arrangements to fund, its participation in a Loan
requested by the Borrower 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
Lender alone); or
(d) a Loan (or part of a Loan) not being prepaid in accordance with a
notice of prepayment given by the Borrower.
14.3 INDEMNITY TO THE AGENT
The Borrower shall promptly indemnify the Agent against any cost, loss or
liability incurred by the Agent (acting reasonably) as a result of:
(a) investigating (after consultation with the Borrower) any event which
it reasonably believes is a Default; or
21
(b) acting or relying on any notice, request or instruction purportedly
by the Borrower which it reasonably believes to be genuine, correct
and appropriately authorised.
15. MITIGATION BY THE LENDERS
15.1 MITIGATION
(a) Each Finance Party shall, in consultation with the Borrower, take
all reasonable steps to mitigate any circumstances which arise and
which would result in any amount becoming payable under, or
cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 12
(Tax Gross Up and Indemnities) or Clause 13 (Increased Costs)
including (but not limited to) transferring its rights and
obligations under the Finance Documents to another Affiliate or
Facility Office.
(b) Paragraph (a) above does not in any way limit the obligations of the
Borrower under the Finance Documents.
15.2 LIMITATION OF LIABILITY
(a) The Borrower shall 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 15.1 (Mitigation).
(b) A Finance Party is not obliged to take any steps under Clause 15.1
(Mitigation) if, in the opinion of that Finance Party (acting
reasonably), to do so is likely to be prejudicial to it.
16. COSTS AND EXPENSES
16.1 TRANSACTION EXPENSES
The Borrower shall within five Business Days of demand pay the Agent and
the Arranger the amount of all costs and expenses (including legal fees)
reasonably incurred by any of them in connection with the negotiation,
preparation, printing, execution and syndication of:
(a) this Agreement and any other Finance Documents referred to in this
Agreement; and
(b) any other Finance Documents executed after the date of this
Agreement.
16.2 AMENDMENT COSTS
If the Borrower requests an amendment, waiver or consent, the Borrower
shall, within five Business Days of demand, reimburse the Agent for the
amount of all costs and expenses (including legal fees) reasonably
incurred by the Agent in responding to, evaluating, negotiating or
complying with that request.
16.3 ENFORCEMENT COSTS
The Borrower shall, within five Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal fees)
incurred by that Finance
22
Party in connection with the enforcement of, or the preservation of any
rights under, any Finance Document.
17. REPRESENTATIONS
The Borrower makes the representations and warranties set out in this
Clause 17 to each Finance Party on the date of this Agreement.
17.1 STATUS
(a) It is a corporation, duly incorporated and validly existing under
the law of Singapore.
(b) It and each of its Subsidiaries has the power to own its assets and
carry on its business as it is being conducted.
17.2 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in each Finance Document
are, subject to any general principles of law limiting its obligations
which are specifically referred to in any legal opinion delivered pursuant
to Clause 4 (Conditions of Utilisation), legal, valid, binding and
enforceable obligations.
17.3 NON-CONFLICT WITH OTHER OBLIGATIONS
The entry into and performance by it of, and the transactions contemplated
by, the Finance Documents do not and will not conflict with:
(a) any law or regulation applicable to it;
(b) its constitutional documents; or
(c) any agreement or instrument binding upon it or any of its assets or
(to an extent which would have a Material Adverse Effect on it) any
of its Subsidiaries or any of its Subsidiaries' assets.
17.4 POWER AND AUTHORITY
It has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery of,
the Finance Documents and the transactions contemplated by those Finance
Documents.
17.5 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All Authorisations required:
(a) to enable it lawfully to enter into, exercise its rights and comply
with its obligations in the Finance Documents; and
(b) to make the Finance Documents admissible in evidence in Singapore,
have been obtained or effected and are in full force and effect.
17.6 NO FILING OR STAMP TAXES
It is not necessary, under Singapore law, that the Finance Documents be
filed, recorded or enrolled with any court or other authority in that
jurisdiction or that any
23
stamp, registration or similar tax be paid on or in relation to the
Finance Documents or the transactions contemplated by the Finance
Documents.
17.7 NO DEFAULT
(a) No Event of Default is continuing or might reasonably be expected to
result from the making of any Utilisation.
(b) 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, in each case, might
reasonably be expected to have a Material Adverse Effect.
17.8 NO MISLEADING INFORMATION
(a) Any material written factual information provided by it in relation
to this Agreement 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.
(b) Nothing has occurred or been omitted from the factual information so
provided that results in the information referred to in paragraph
(a) above provided by it being untrue or misleading in any material
respect.
17.9 FINANCIAL STATEMENTS
(a) Its Original Financial Statements were prepared in accordance with
GAAP consistently applied.
(b) Its Original Financial Statements give a true and fair view of its
consolidated financial condition and operations as at the end of and
for the relevant financial year.
(c) There has been no change in its financial condition (or the
consolidated financial condition of the Group) since 30 September
2004 which has a material adverse effect on the ability of the
Borrower to perform and comply with its payment or other material
obligations under this Agreement.
17.10 PARI PASSU RANKING
Its payment obligations under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law in
Singapore applying to companies generally.
17.11 WINDING-UP
No meeting has been convened for the winding-up of it or any of its
Subsidiaries or for the appointment of a receiver, trustee, judicial
manager, administrator, administrative receiver, compulsory manager or
other similar officer of it, any of its Subsidiaries or any of their
respective assets, no such step is intended by it or any of its
Subsidiaries and, so far as it is aware, no petition, application or the
like is outstanding for the winding-up of it or any of its Subsidiaries or
for the appointment of a receiver, trustee, judicial manager,
administrator, administrative receiver, compulsory manager or other
24
similar officer of it, any of its Subsidiaries or any of their respective
assets or any of them.
17.12 NO PROCEEDINGS PENDING OR THREATENED
No litigation, arbitration or administrative proceedings of or before any
court, arbitral body or agency which, if adversely determined, might
reasonably be expected to have a Material Adverse Effect have (to the best
of its knowledge and belief) been started or threatened against it or any
of its Subsidiaries.
17.13 REPETITION
The Repeating Representations are deemed to be made by the Borrower by
reference to the facts and circumstances then existing on the date of each
Utilisation Request and on the first day of each Interest Period.
18. INFORMATION UNDERTAKINGS
The undertakings in this Clause 18 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
18.1 FINANCIAL STATEMENTS
The Borrower shall supply to the Agent in sufficient copies for all the
Lenders:
(a) as soon as the same become available, but in any event within 180
days after the end of each of its financial years, its audited
consolidated financial statements for that financial year; and
(b) 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,
its unaudited consolidated financial statements for that financial
quarter.
18.2 COMPLIANCE CERTIFICATE
(a) The Borrower shall supply to the Agent, with each set of financial
statements delivered pursuant to Clause 18.1 (Financial statements),
a Compliance Certificate setting out (in reasonable detail)
computations as to compliance with Clause 19 (Financial Covenants)
as at the date as at which those financial statements were drawn up.
(b) Each Compliance Certificate shall be signed by a director or an
authorised signatory of the Borrower.
18.3 REQUIREMENTS AS TO FINANCIAL STATEMENTS
(a) Each set of financial statements delivered by the Borrower pursuant
to Clause 18.1 (Financial statements) shall (unless certified by the
Borrower's auditors) be certified by a director, an authorised
signatory or senior officer on its behalf as giving a true and fair
view of its consolidated financial condition and operations as at
the end of and for the period in relation to which those financial
statements were drawn up.
25
(b) The Borrower shall procure that each set of financial statements
delivered pursuant to Clause 18.1 (Financial statements) is prepared
using GAAP.
18.4 INFORMATION: MISCELLANEOUS
The Borrower shall supply to the Agent (in sufficient copies for all the
Lenders, if the Agent so requests):
(a) all documents despatched by the Borrower to its shareholders (or any
class of them) or its creditors generally at the same time as they
are despatched;
(b) 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, if adversely determined, be reasonably expected to have a
Material Adverse Effect; and
(c) promptly, such further information regarding the financial
condition, business and operations of any member of the Group as any
Finance Party (through the Agent) may reasonably request, except to
the extent that:
(i) disclosure of such information would breach any law,
regulation or stock exchange requirement; or
(ii) where the Borrower is of the reasonable opinion that the
information is of a price-sensitive nature or is of a
proprietary nature and its disclosure would be prejudicial to
any member of the Group,
Provided that such information shall be promptly supplied to the
Agent, in accordance with this Clause 18.4 in the event that it
should subsequently request for the same if, at the time of such
subsequent request, the Borrower has determined in good faith that
(A) such disclosure would not result in such a breach or, as the
case may be, (B) such opinion no longer applies.
18.5 NOTIFICATION OF DEFAULT
(a) The Borrower shall notify the Agent of any Default (and the steps,
if any, being taken to remedy it) promptly upon becoming aware of
its occurrence.
(b) Promptly upon a request by the Agent, the Borrower shall supply to
the Agent a certificate signed by a director, an authorised
signatory or a senior officer 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).
19. FINANCIAL COVENANTS
19.1 FINANCIAL CONDITION
The Borrower shall ensure that:
(a) Consolidated Net Worth will not at any time be less than
US$1,000,000,000; and
(b) Consolidated Total Gross Debt will not at any time exceed 180 per
cent. of Consolidated Net Worth.
26
19.2 FINANCIAL COVENANT CALCULATIONS
(a) Consolidated Net Worth and Consolidated Total Gross Debt shall be
calculated and interpreted on a consolidated basis in accordance
with the GAAP applicable to the Original Financial Statements and
shall be expressed in US Dollars.
(b) Consolidated Net Worth and Consolidated Total Gross Debt shall be
determined (except as needed to reflect the terms of this Clause 19)
from the financial statements of the Group and Compliance
Certificates delivered under Clause 18.1 (Financial statements) and
Clause 18.2 (Compliance Certificate).
19.3 DEFINITIONS
In this Clause 19.3:
"CONSOLIDATED NET WORTH" means the aggregate of the paid-up share capital
and reserves of the Borrower and its Subsidiaries or any other accounts of
the Borrower and its Subsidiaries that are included as shareholders' fund,
less non-monetary revaluation reserves and goodwill arising from any Major
Acquisition.
"CONSOLIDATED TOTAL GROSS DEBT" means, as at any particular time, the
aggregate outstanding principal, capital or nominal amount (and any fixed
or minimum premium payable on prepayment or redemption) of the Financial
Indebtedness of members of the Group (other than any indebtedness referred
to in paragraphs (g) and (i) of the definition of Financial Indebtedness
and any guarantee or indemnity in respect of that indebtedness).
For this purpose, any amount outstanding or repayable in a currency other
than US Dollars shall on that day be taken into account in its US Dollars
equivalent at the rate of exchange that would have been used had an
audited consolidated balance sheet of the Group been prepared as at that
day in accordance with the GAAP applicable to the Original Financial
Statements.
"MAJOR ACQUISITION" means an acquisition by the Borrower or any of its
Subsidiaries of shares or other equity interest in an entity where the
aggregate consideration for such acquisition exceeds US$300,000,000 (or
its equivalent in any other currency or currencies).
20. GENERAL UNDERTAKINGS
The undertakings in this Clause 20 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
20.1 AUTHORISATIONS
The Borrower shall promptly:
(a) obtain, comply with and do all that is necessary to maintain in full
force and effect; and
27
(b) supply certified copies to the Agent of,
any Authorisation required under any law or regulation of Singapore to
enable it to perform its obligations under the Finance Documents and to
ensure the legality, validity, enforceability or admissibility in evidence
in Singapore of any Finance Document.
20.2 COMPLIANCE WITH LAWS
The Borrower shall comply in all respects with all laws to which it may be
subject, if failure so to comply would materially impair its ability to
perform its obligations under the Finance Documents.
20.3 NEGATIVE PLEDGE
The Borrower will not, and will procure that none of its Material
Subsidiaries will, create or permit to subsist any Security upon the whole
or any part of any present or future property or assets to secure the
repayment of, or any guarantee or indemnity in respect of, any credit or
loan facilities or International Investment Securities without (a) at the
same time or prior thereto securing the Facilities equally and rateably
with such securities or otherwise in a manner satisfactory to the Lenders
or (b) providing such other security for the Facilities as the Lenders may
deem to be not materially less beneficial Provided, however, that the
foregoing restriction shall not apply to:
(i) any Security upon the whole or a part of any property or assets of
the Borrower or any of its Material Subsidiaries, which Security is
to secure any indebtedness arising from credit or loan facilities or
International Investment Securities issued by the Borrower or by any
of its Material Subsidiaries, in each case solely for the purpose of
financing the cost of the purchase, development, construction,
equipping, alteration, repair or improvement of any property or
assets acquired by it or them after 2 April 2001 Provided that (1)
such Security is confined to such property or assets, (2) the
principal amount of the International Investment Securities secured
by such Security shall not exceed the aggregate amount of such cost
and (3) such Security attaches to such property or assets
concurrently with or within 120 days after the time of the
acquisition of such property or assets or the completion of the
activity being financed;
(ii) any Security upon the whole or a part of any property or assets of
the Borrower or any of its Material Subsidiaries, which Security is
to secure any indebtedness evidenced by International Investment
Securities existing on (1) any property or asset of any entity at
the time the Borrower or one of its Subsidiaries acquire such entity
after 2 April 2001, whether by merger, consolidation or otherwise or
(2) any property or asset at the time it is acquired by the Borrower
or one of its Subsidiaries after 2 April 2001 Provided that, in each
case, such Security shall not have been created in contemplation of
or in connection with the acquisition of such entity or, as the case
may be, the acquisition of such property or asset;
28
(iii) any Security upon the whole or a part of any property or assets of
the Borrower or any of its Material Subsidiaries, which Security is
a renewal, extension or replacement (in whole or in part) of any
Security permitted in paragraphs (i) and/or (ii) above;
(iv) the Security over the CSP Debt Service Reserve Account and the
amounts from time to time deposited and held therein, created in
favour of the Security Trustee under the CSP Agreement, provided
that the aggregate of all amounts deposited and held in the CSP
Debt Service Reserve Account shall not at any time exceed
US$129,000,000;
(v) any netting or set-off arrangement entered into by the Borrower in
the ordinary course of its banking arrangements for the purpose of
netting debit and credit balances;
(vi) any Security created or to be created in favour of Ex-Im Bank over
the Ex-Im Bank Facility Anticipation Account and the amounts from
time to time deposited and held in the Ex-Im Bank Facility
Anticipation Account, provided that the aggregate of all amounts
deposited and held in the Ex-Im Bank Facility Anticipation Account
shall not at any time exceed US$150,000,000;
(vii) any Security created pursuant to any Finance Document;
(viii) any Security created with the prior consent of the Majority
Lenders; and
(ix) any Security securing indebtedness the principal amount of which
(when aggregated with the principal amount of any other
indebtedness which has the benefit of Security given by the
Borrower or any of its Material Subsidiaries other than any
permitted under this Clause 20.3) does not exceed US$300,000,000
(or its equivalent in another currency or currencies).
20.4 DISPOSALS
(a) The Borrower shall not (and shall ensure that no other member of the Group
will) enter into a single transaction or a series of transactions (whether
related or not and whether voluntary or involuntary) to sell, lease,
transfer or otherwise dispose of any asset.
(b) Paragraph (a) above does not apply to any sale, lease, transfer or other
disposal:
(i) made in the ordinary course of trading and operations of the
disposing entity (including, without limitation, sales of products
and stock-in-trade in its manufacturing business);
(ii) made by any member of the Group on arm's length terms to another
member of the Group or to an Associated Company of the Borrower;
(iii) of assets in exchange for other assets comparable or superior as to
type, value and quality;
(iv) of obsolete or surplus assets on arm's length terms no longer
required for the efficient operation of the disposing entity's
business;
29
(v) made with the prior consent in writing of the Majority Lenders;
(vi) of current receivables under or in connection with securitisation
arrangements on arm's length terms and/or for valuable
consideration; or
(vii) of any assets by any member of the Group where the higher of the
market value or consideration receivable (when aggregated with the
higher of the market value or consideration receivable for any other
sale, lease, transfer or other disposal of any other assets) (to the
extent not permitted under paragraphs (i) to (vi) above) does not
exceed (1) US$400,000,000 (or its equivalent in any other currency
or currencies) in any financial year and (2) US$1,000,000,000 during
the period commencing from the date of this Agreement to the date
falling 60 Months from the date of this Agreement.
20.5 MERGER
The Borrower shall not (and shall ensure that no other member of the Group
will) enter into any amalgamation, demerger, merger or corporate
reconstruction without the prior written consent of the Majority Lenders
(such consent not to be unreasonably withheld).
20.6 CHANGE OF BUSINESS
The Borrower shall procure that no substantial change is made to the
general nature of the business of the Borrower or the Group from that
carried on at the date of this Agreement without the prior written consent
of the Majority Lenders (such consent not to be unreasonably withheld).
20.7 INSURANCE
The Borrower shall (and shall ensure that each other member of the Group
will) maintain insurances on and in relation to its business and assets
with reputable underwriters or insurance companies against those risks,
and to the extent, usually insured against by prudent companies carrying
on a similar business in accordance with current industry standards.
20.8 CONDUCT OF AFFAIRS
The Borrower shall at all times carry on and conduct its affairs in a
proper and efficient manner.
20.9 DEPRECIATION POLICY
The Borrower shall, in the event of any change to its depreciation policy
in relation to any of its financial statements, notify the Agent of such
change and procure that its auditors deliver to the Agent a description of
any changes necessary for those financial statements to reflect the
depreciation policy upon which the Original Financial Statements were
prepared.
20.10 UNENCUMBERED ASSETS
The Borrower shall not create or permit to subsist any Security over any
of its present or future assets if, as a consequence thereof, the book
value of the Unencumbered
30
Assets becomes less than US$800,000,000 (or its equivalent in any other
currency or currencies).
20.11 FURTHER ASSURANCE
The Borrower shall from time to time on request by the Agent (or by any
other Finance Party through the Agent) do or procure the doing of all such
acts and will execute or procure the execution of all such documents as
may reasonably be considered necessary for giving full effect to each of
the Finance Documents or securing to the Finance Parties the full benefits
of all rights, powers and remedies conferred upon the Finance Parties in
any of the Finance Documents.
21. EVENTS OF DEFAULT
Each of the events or circumstances set out in Clause 21 is an Event of
Default.
21.1 NON-PAYMENT
The Borrower does not pay on the due date any amount payable pursuant to a
Finance Document at the place at and in the currency in which it is
expressed to be payable unless:
(a) its failure to pay is caused by administrative or technical error;
and
(b) payment is made within two Business Days of its due date.
21.2 FINANCIAL COVENANTS
(a) Any requirement of Clause 19 (Financial Covenants) is not satisfied.
(b) No Event of Default under paragraph (a) above will occur if the failure to
comply is capable of remedy and is remedied within 30 days of the Agent
giving notice to the Borrower or the Borrower becoming aware of the
failure to comply.
21.3 OTHER OBLIGATIONS
(a) The Borrower does not comply with any provision of the Finance Documents
(other than those referred to in Clause 21.1 (Non-payment) and Clause 21.2
(Financial covenants)).
(b) No Event of Default under paragraph (a) above will occur if the failure to
comply is capable of remedy and is remedied within 30 days of the Agent
giving notice to the Borrower or the Borrower becoming aware of the
failure to comply.
21.4 MISREPRESENTATION
(a) Any representation or statement made or deemed to be made by the Borrower
in the Finance Documents or any other document delivered by or on behalf
of the Borrower under or in connection with any Finance Document is or
proves to have been incorrect or misleading in any material respect when
made or deemed to be made.
(b) No Event of Default under paragraph (a) above will occur if the event or
circumstance resulting in the representation or statement being incorrect
or misleading is capable of remedy and is remedied within 30 days of the
Agent giving notice to the Borrower or
31
the Borrower becoming aware of the representation or statement being
incorrect or misleading.
21.5 CROSS DEFAULT
(a) Any Financial Indebtedness of any member of the Group is not paid
when due nor within any originally applicable grace period.
(b) Any Financial Indebtedness of any member of the Group is validly
declared to be or otherwise becomes due and payable prior to its
specified maturity as a result of an event of default (however
described).
(c) Any commitment for any Financial Indebtedness of any member of the
Group is cancelled or suspended by a creditor of any member of the
Group as a result of an event of default (however described).
(d) Any creditor of any member of the Group becomes entitled to declare
any Financial Indebtedness of any member of the Group due and
payable prior to its specified maturity as a result of an event of
default (however described).
(e) No Event of Default will occur under this Clause 21.5 if the
aggregate amount of Financial Indebtedness or commitment for
Financial Indebtedness falling within paragraphs (a) to (d) above is
less than US$30,000,000 (or its equivalent in any other currency or
currencies).
21.6 INSOLVENCY
(a) The Borrower or any of its Material Subsidiaries is unable or admits
inability to pay its debts as they fall due, suspends making
payments on any of its debts or, by reason of actual or anticipated
financial difficulties, commences negotiations with one or more of
its creditors with a view to rescheduling any of its indebtedness.
(b) The value of the assets of the Borrower or any of its Material
Subsidiaries is less than its liabilities (taking into account
contingent and prospective liabilities).
(c) A moratorium is declared in respect of any indebtedness of the
Borrower or any of its Material Subsidiaries.
21.7 INSOLVENCY PROCEEDINGS
Any corporate action, legal proceedings or other procedure or step is
taken in relation to:
(a) the suspension of payments, a moratorium of any indebtedness,
winding-up, dissolution, administration or reorganisation (by way of
voluntary arrangement, scheme of arrangement or otherwise) of the
Borrower or any of its Material Subsidiaries (other than a solvent
liquidation or reorganisation of any of its Material Subsidiaries);
32
(b) a composition, assignment or arrangement with any creditor of the
Borrower or any of its Material Subsidiaries in relation to any
indebtedness payable to that creditor;
(c) the appointment of a liquidator (other than in respect of a solvent
liquidation of the Borrower or any of its Material Subsidiaries),
receiver, administrator, administrative receiver, compulsory manager
or other similar officer in respect of the Borrower or any of its
Material Subsidiaries or any of its assets; or
(d) enforcement of any Security over any assets of the Borrower or any
of its Material Subsidiaries,
or any analogous procedure or step is taken in any jurisdiction.
21.8 CREDITORS' PROCESS
Any expropriation, attachment, sequestration, distress or execution is
levied or taken out against all or a material part of the assets of the
Borrower or any of its Material Subsidiaries and is not discharged within
30 days.
21.9 NATIONALISATION
Any step is taken by any person with a view to the seizure, compulsory
acquisition, expropriation or nationalisation of all or a material part of
the assets of the Borrower or any of its Material Subsidiaries.
21.10 CESSATION OF BUSINESS
The Borrower or any of its Material Subsidiaries ceases or threatens to
cease to carry on all or a substantial part of its business.
21.11 UNLAWFULNESS
It is or becomes unlawful for the Borrower to perform any of its payment
or other material obligations under the Finance Documents.
21.12 REPUDIATION
The Borrower repudiates a Finance Document or evidences an intention to
repudiate a Finance Document.
21.13 MATERIAL ADVERSE CHANGE
Any event or circumstance occurs which the Majority Lenders reasonably
determine might have a Material Adverse Effect.
21.14 DECLARED COMPANY
The Borrower is declared by the Ministry of Finance to be a company to
which Part IX of the Companies Act, Chapter 50 of Singapore applies.
21.15 ACCELERATION
On and at any time after the occurrence of an Event of Default which is
continuing the Agent may, and shall if so directed by the Majority
Lenders, by notice to the Borrower:
(a) cancel the Total Commitments whereupon they shall immediately be
cancelled;
33
(b) declare that all or part of the Loans, together with accrued
interest, and all other amounts accrued or outstanding under the
Finance Documents be immediately due and payable, whereupon they
shall become immediately due and payable; and/or
(c) declare that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand by the
Agent on the instructions of the Majority Lenders.
22. CHANGES TO THE LENDERS
22.1 ASSIGNMENTS AND TRANSFERS BY THE LENDERS
Subject to this Clause 22, a Lender (the "EXISTING LENDER") may:
(a) assign any of its rights; or
(b) transfer by novation any of its rights and obligations,
to another bank or financial institution (the "NEW LENDER") at the cost
and expense of the Existing Lender and/or the New Lender and with prior
notice to but otherwise without the prior consent of the Borrower.
22.2 CONDITIONS OF ASSIGNMENT OR TRANSFER
(a) An assignment will only be effective on receipt by the Agent of written
confirmation from the New Lender (in form and substance satisfactory to
the Agent) that the New Lender will assume the same obligations to the
other Finance Parties as it would have been under if it was an Original
Lender.
(b) A transfer will only be effective if the procedure set out in Clause 22.5
(Procedure for transfer) is complied with.
(c) If:
(i) a Lender assigns or transfers any of its rights or obligations under
the Finance Documents or changes its Facility Office; and
(ii) as a result of circumstances existing at the date the assignment,
transfer or change occurs, the Borrower would be obliged to make a
payment to the New Lender or Lender acting through its new Facility
Office under Clause 12 (Tax Gross Up and Indemnities) or Clause 13
(Increased Costs),
then the New Lender or Lender acting through its new Facility Office is
only entitled to receive payment under those Clauses to the same extent as
the Existing Lender or Lender acting through its previous Facility Office
would have been if the assignment, transfer or change had not occurred.
22.3 ASSIGNMENT OR TRANSFER FEE
The New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Agent (for its own account) a fee of US$500.
34
22.4 LIMITATION OF RESPONSIBILITY OF EXISTING LENDERS
(a) Unless expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New
Lender for:
(i) the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other
documents;
(ii) the financial condition of the Borrower;
(iii) the performance and observance by the Borrower of its
obligations under the Finance Documents or any other
documents; or
(iv) the accuracy of any statements (whether written or oral) made
in or in connection with any Finance Document or any other
document,
and any representations or warranties implied by law are excluded.
(b) Each New Lender confirms to the Existing Lender and the other
Finance Parties that it:
(i) has made (and shall continue to make) its own independent
investigation and assessment of the financial condition and
affairs of the Borrower and its related entities in connection
with its participation in this Agreement and has not relied
exclusively on any information provided to it by the Existing
Lender in connection with any Finance Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of the Borrower and its related entities
whilst any amount is or may be outstanding under the Finance
Documents or any Commitment is in force.
(c) Nothing in any Finance Document obliges an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the rights
and obligations assigned or transferred under this Clause 22;
or
(ii) support any losses directly or indirectly incurred by the New
Lender by reason of the non-performance by the Borrower of its
obligations under the Finance Documents or otherwise.
22.5 PROCEDURE FOR TRANSFER
(a) Subject to the conditions set out in Clause 22.2 (Conditions of
assignment or transfer) a transfer is effected in accordance with
paragraph (b) below when the Agent executes an otherwise duly
completed Transfer Certificate delivered to it by the Existing
Lender and the New Lender. The Agent shall, as soon as reasonably
practicable after receipt by it of a duly completed Transfer
Certificate appearing on its face to comply with the terms of this
Agreement and delivered in accordance with the terms of this
Agreement, execute that Transfer Certificate.
35
(b) On the Transfer Date:
(i) to the extent that in the Transfer Certificate the Existing
Lender seeks to transfer by novation its rights and
obligations under the Finance Documents the Borrower and the
Existing Lender shall be released from further obligations
towards one another under the Finance Documents and their
respective rights against one another under the Finance
Documents shall be cancelled (being the "DISCHARGED RIGHTS AND
OBLIGATIONS");
(ii) the Borrower and the New Lender shall assume obligations
towards one another and/or acquire rights against one another
which differ from the Discharged Rights and Obligations only
insofar as the Borrower and the New Lender have assumed and/or
acquired the same in place of the Borrower and the Existing
Lender;
(iii) the Agent, the Arranger, the New Lender and other Lenders
shall acquire the same rights and assume the same obligations
between themselves as they would have acquired and assumed had
the New Lender been an Original Lender with the rights and/or
obligations acquired or assumed by it as a result of the
transfer and to that extent the Agent, the Arranger and the
Existing Lender shall each be released from further
obligations to each other under the Finance Documents; and
(iv) the New Lender shall become a Party as a "Lender".
22.6 COMMITMENT INCREASE REQUEST
(a) Subject to paragraph (e) below, the Borrower may, at any time up to
(and including) the date which is 12 Months after the date of this
Agreement, request the Arranger to invite (within a period of not
more than 30 days) one or more banks or financial institutions
(which may include any bank or financial institution specified by
the Borrower in its request) willing to become an Acceding Lender
or, in the case of an existing Lender, willing to agree to a
Commitment Increase, to become a Facility B Lender.
(b) If any bank or financial institution invited by the Arranger is
willing to become an Acceding Lender or, in the case of an existing
Lender, is willing to agree to a Commitment Increase within such 30
day period, the Arranger will notify the Borrower.
(c) None of the Finance Parties shall have any obligation to procure a
bank or financial institution to become an Acceding Lender or a
Commitment Increase Lender.
(d) The Borrower shall co-operate with and assist the Arranger with
respect to its request in paragraph (a) above, including providing
the Arranger with:
36
(i) all information reasonably required by the Arranger in order
to assist it in inviting any bank or financial institution to
become an Acceding Lender; and
(ii) information reasonably requested by any bank or financial
institution in connection with any invitation to it to become
an Acceding Lender.
(e) The aggregate amount comprising the Facility B Commitments of all
the Acceding Lenders and all the relevant Lenders agreeing to a
Commitment Increase shall not at any time exceed US$100,000,000.
22.7 ACCEDING LENDER
If the Borrower agrees that a bank or financial institution (other than an
existing Lender) invited by the Arranger shall become an Acceding Lender:
(a) the Arranger shall arrange the delivery to the Agent of a Lender
Accession Notice duly executed by such bank or financial institution
specifying the Accession Date and the amount of such bank's or
financial institution's Facility B Commitment for the purposes of
this Agreement;
(b) on such Accession Date, such bank or financial institution shall
become an Acceding Lender for the purposes of this Agreement, and
the Agent, each such Acceding Lender and the other Parties shall
acquire the same rights and assume the same obligations between
themselves as they would have acquired and assumed had such Acceding
Lender been an original Party hereto as a Lender with a Facility B
Commitment in the amount expressed in its Lender Accession Notice;
and
(c) the Borrower shall pay to the Arranger such fee as may be mutually
agreed between the Borrower and the Arranger in respect of such
Acceding Lender.
22.8 COMMITMENT INCREASE
If the Borrower agrees to accept the Commitment Increase of an existing
Lender pursuant to an invitation by the Arranger:
(a) the Arranger shall arrange the delivery to the Agent of a Commitment
Increase Notice duly executed by such Lender specifying the
Commitment Increase Date, the Aggregate Facility B Commitment (as
defined in that Commitment Increase Notice) and the Commitment
Increase;
(b) on such Commitment Increase Date, the Facility B Commitment of that
existing Lender shall be (or if the existing Lender is already a
Facility B Lender, shall be increased by), the amount of that
Commitment Increase and the Agent, each Lender and the other Parties
hereto shall acquire the same rights and assume the same obligations
between themselves as they would have acquired and assumed had the
Lender agreeing to the Commitment Increase been an original Party
hereto with a Facility B Commitment in the amount of the Commitment
Increase or, as the case may be, the Aggregate Facility B Commitment
specified (and defined) in that Commitment Increase Notice; and
37
(c) the Borrower shall pay to the Arranger such fee as may be mutually
agreed between the Borrower and the Arranger in respect of such
Commitment Increase.
22.9 DISCLOSURE OF INFORMATION
Any Finance Party and any of its officers (as defined in the Banking Act,
Chapter 19 of Singapore (the "BANKING ACT")) may disclose to any of its
Affiliates, head office, branches and representative offices and any other
person:
(a) (where that Finance Party is a Lender) to (or through) whom that
Lender assigns or transfers (or may potentially assign or transfer)
all or any of its rights and obligations under this Agreement (for
the purpose of that assignment or transfer);
(b) (where that Finance Party is a Lender) with (or through) whom that
Lender enters into (or may potentially enter into) any
sub-participation in relation to, or any other transaction under
which payments are to be made by reference to, this Agreement or the
Borrower (for the purpose of that sub-participation or such other
transaction);
(c) (where that Finance Party is the Agent) who is succeeding (or may
potentially succeed) that Finance Party in such capacity;
(d) to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation;
(e) to whom that Finance Party is under a duty to disclose; or
(f) who is a person, or who belongs to a class of persons, specified in
the second column of the Third Schedule to the Banking Act,
any customer information (as defined in the Banking Act) or any other
information about the Borrower, the Group and the Finance Documents as
that Finance Party shall consider appropriate.
This Clause 22.9 is not, and shall not be deemed to constitute, an express
or implied agreement by any Finance Party with the Borrower for a higher
degree of confidentiality than that described in Section 47 of the Banking
Act and in the Third Schedule to the Banking Act.
23. CHANGES TO THE BORROWER
The Borrower may not assign any of its rights or transfer any of its
rights or obligations under the Finance Documents.
24. ROLE OF THE AGENT AND THE ARRANGER
24.1 APPOINTMENT OF THE AGENT
(a) Each other Finance Party appoints the Agent to act as its agent
under and in connection with the Finance Documents.
38
(b) Each other Finance Party authorises the Agent to exercise the
rights, powers, authorities and discretions specifically given to
the Agent under or in connection with the Finance Documents together
with any other incidental rights, powers, authorities and
discretions.
24.2 DUTIES OF THE AGENT
(a) The Agent shall promptly forward to a Party the original or a copy
of any document which is delivered to the Agent for that Party by
any other Party.
(b) Except where a Finance Document specifically provides otherwise, the
Agent is not obliged to review or check the adequacy, accuracy or
completeness of any document it forwards to another Party.
(c) If the Agent receives notice from a Party referring to this
Agreement, describing a Default and stating that the circumstance
described is a Default, it shall promptly notify the Finance
Parties.
(d) If the Agent is aware of the non-payment of any principal, interest
or fee payable to a Finance Party (other than the Agent or the
Arranger) under this Agreement it shall promptly notify the other
Finance Parties.
(e) The Agent's duties under the Finance Documents are solely mechanical
and administrative in nature.
24.3 ROLE OF THE ARRANGER
Except as specifically provided in the Finance Documents (including,
without limitation, in Clauses 22.6 (Commitment Increase Request), 22.7
(Acceding Lender) and 22.8 (Commitment Increase)), the Arranger has no
obligations of any kind to any other Party under or in connection with any
Finance Document.
24.4 NO FIDUCIARY DUTIES
(a) Nothing in this Agreement constitutes the Agent or the Arranger as a
trustee or fiduciary of any other person.
(b) Neither the Agent nor the Arranger shall be bound to account to any
Lender for any sum or the profit element of any sum received by it
for its own account.
24.5 BUSINESS WITH THE GROUP
The Agent and the Arranger may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any member
of the Group.
24.6 RIGHTS AND DISCRETIONS OF THE AGENT
(a) The Agent may rely on:
(i) any representation, notice or document believed by it to be
genuine, correct and appropriately authorised; and
(ii) any statement made by a director, authorised signatory or
employee of any person regarding any matters which may
reasonably be assumed to be within his knowledge or within his
power to verify.
39
(b) The Agent may assume (unless it has received notice to the contrary
in its capacity as agent for the Lenders) that:
(i) no Default has occurred (unless it has actual knowledge of a
Default arising under Clause 21.1 (Non-payment)); and
(ii) any right, power, authority or discretion vested in any Party
or the Majority Lenders has not been exercised.
(c) The Agent may engage, pay for and rely on the advice or services of
any lawyers, accountants, surveyors or other experts.
(d) The Agent may act in relation to the Finance Documents through its
personnel and agents.
(e) The Agent may disclose to any other Party any information it
believes it has received as agent under this Agreement.
(f) Notwithstanding any other provision of any Finance Document to the
contrary, neither the Agent nor the Arranger is obliged to do or
omit to do anything if it would or might in its reasonable opinion
constitute a breach of any law or regulation or a breach of a
fiduciary duty or duty of confidentiality.
24.7 MAJORITY LENDERS' INSTRUCTIONS
(a) Unless a contrary indication appears in a Finance Document, the
Agent shall (i) exercise any right, power, authority or discretion
vested in it as Agent in accordance with any instructions given to
it by the Majority Lenders (or, if so instructed by the Majority
Lenders, refrain from exercising any right, power, authority or
discretion vested in it as Agent) and (ii) not be liable for any act
(or omission) if it acts (or refrains from taking any action) in
accordance with an instruction of the Majority Lenders.
(b) Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Lenders will be binding on all
the Finance Parties.
(c) The Agent may refrain from acting in accordance with the
instructions of the Majority Lenders (or, if appropriate, the
Lenders) until it has received such security as it may require for
any cost, loss or liability (together with any associated goods and
service tax) which it may incur in complying with the instructions.
(d) In the absence of instructions from the Majority Lenders (or, if
appropriate, the Lenders), the Agent may act (or refrain from taking
action) as it considers to be in the best interest of the Lenders.
(e) The Agent is not authorised to act on behalf of a Lender (without
first obtaining that Lender's consent) in any legal or arbitration
proceedings relating to any Finance Document.
24.8 RESPONSIBILITY FOR DOCUMENTATION
Neither the Agent nor the Arranger:
40
(a) is responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Agent, the
Arranger, the Borrower or any other person given in or in connection
with any Finance Document; or
(b) is responsible for the legality, validity, effectiveness, adequacy
or enforceability of any Finance Document or any other agreement,
arrangement or document entered into, made or executed in
anticipation of or in connection with any Finance Document.
24.9 EXCLUSION OF LIABILITY
(a) Without limiting paragraph (b) below, the Agent will not be liable
for any action taken by it under or in connection with any Finance
Document, unless directly caused by its gross negligence or wilful
misconduct.
(b) No Party (other than the Agent) may take any proceedings against any
officer, employee or agent of the Agent in respect of any claim it
might have against the Agent or in respect of any act or omission of
any kind by that officer, employee or agent in relation to any
Finance Document and any officer, employee or agent of the Agent may
rely on this Clause. Any third party referred to in this paragraph
(b) may enjoy the benefit of or enforce the terms of this paragraph
in accordance with the provisions of the Contracts (Right of Third
Parties) Act, Chapter 53B of Singapore.
(c) The Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required under
the Finance Documents to be paid by the Agent if the Agent has taken
all necessary steps as soon as reasonably practicable to comply with
the regulations or operating procedures of any recognised clearing
or settlement system used by the Agent for that purpose.
24.10 LENDERS' INDEMNITY TO THE AGENT
Each Lender shall (in proportion to its share of the Total Commitments or,
if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify the
Agent, within three Business Days of demand, against any cost, loss or
liability incurred by the Agent (including, but not limited to, any unpaid
fees under Clause 11.2) (otherwise than by reason of the Agent's gross
negligence or wilful misconduct) in acting as Agent under the Finance
Documents (unless the Agent has been reimbursed by the Borrower pursuant
to a Finance Document).
24.11 RESIGNATION OF THE AGENT
(a) The Agent may resign and appoint one of its Affiliates acting
through an office in Singapore as successor by giving notice to the
Lenders and the Borrower.
41
(b) Alternatively the Agent may resign by giving notice to the other
Finance Parties and the Borrower, in which case the Majority Lenders
(after consultation with the Borrower) may appoint a successor
Agent.
(c) If the Majority Lenders have not appointed a successor Agent in
accordance with paragraph (b) above within 30 days after notice of
resignation was given, the Agent (after consultation with the
Borrower) may appoint a successor Agent (acting through an office in
Singapore).
(d) The retiring Agent shall, at its own cost, make available to the
successor Agent such documents and records and provide such
assistance as the successor Agent may reasonably request for the
purposes of performing its functions as Agent under the Finance
Documents.
(e) The Agent's resignation notice shall only take effect upon the
appointment of a successor.
(f) Upon the appointment of a successor, the retiring Agent shall be
discharged from any further obligation in respect of the Finance
Documents but shall remain entitled to the benefit of this Clause
24. Its successor and each of the other Parties shall have the same
rights and obligations amongst themselves as they would have had if
such successor had been an original Party.
(g) After consultation with the Borrower, the Majority Lenders may, by
notice to the Agent, require it to resign in accordance with
paragraph (b) above. In this event, the Agent shall resign in
accordance with paragraph (b) above.
24.12 CONFIDENTIALITY
(a) In acting as agent for the Finance Parties, the Agent shall be
regarded as acting through its agency division which shall be
treated as a separate entity from any other of its divisions or
departments.
(b) If information is received by another division or department of the
Agent, it may be treated as confidential to that division or
department and the Agent shall not be deemed to have notice of it.
24.13 RELATIONSHIP WITH THE LENDERS
The Agent may treat each Lender as a Lender, entitled to payments under
this Agreement and acting through its Facility Office unless it has
received not less than five Business Days prior notice from that Lender to
the contrary in accordance with the terms of this Agreement.
24.14 CREDIT APPRAISAL BY THE LENDERS
Without affecting the responsibility of the Borrower for information
supplied by it or on its behalf in connection with any Finance Document,
each Lender confirms to the Agent and the Arranger that it has been, and
will continue to be, solely responsible for making its own independent
appraisal and investigation of all risks arising under or in connection
with any Finance Document including but not limited to:
42
(a) the financial condition, status and nature of each member of the
Group;
(b) the legality, validity, effectiveness, adequacy or enforceability of
any Finance Document and any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or
in connection with any Finance Document;
(c) whether that Lender has recourse, and the nature and extent of that
recourse, against any Party or any of its respective assets under or
in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance Document;
and
(d) the adequacy, accuracy and/or completeness of any information
provided by the Agent, any Party or by any other person under or in
connection with any Finance Document, the transactions contemplated
by the Finance Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or
in connection with any Finance Document.
24.15 REFERENCE BANKS
If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender
of which it is an Affiliate) ceases to be a Lender, the Agent shall (with
the consent of the Borrower, such consent not to be unreasonably withheld)
appoint another Lender or an Affiliate of a Lender to replace that
Reference Bank.
24.16 DEDUCTION FROM AMOUNTS OWING
If any Party owes an amount to the Agent under the Finance Documents the
Agent may, after giving notice to that Party, deduct an amount not
exceeding that amount from any payment to that Party which the Agent would
otherwise be obliged to make under the Finance Documents and apply the
amount deducted in or towards satisfaction of the amount owed. For the
purposes of the Finance Documents that Party shall be regarded as having
received any amount so deducted.
24.17 TRANSFER CERTIFICATE
Each Party (except for the Lender and any bank or financial institution
which is seeking the relevant transfer in accordance with Clause 22
(Changes to the Lenders)) irrevocably authorises the Agent to sign each
Transfer Certificate on its behalf.
25. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its affairs
(tax or otherwise) in whatever manner it thinks fit;
(b) 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
43
(c) oblige any Finance Party to disclose any information relating to its
affairs (tax or otherwise) or any computations in respect of Tax.
26. SHARING AMONG THE LENDERS
26.1 PAYMENTS TO LENDERS
If a Lender (a "RECOVERING LENDER") receives or recovers any amount from
the Borrower other than in accordance with Clause 27 (Payment Mechanics)
and applies that amount to a payment due under the Finance Documents then:
(a) the Recovering Lender shall, within three Business Days, notify
details of the receipt or recovery to the Agent;
(b) the Agent shall determine whether the receipt or recovery is in
excess of the amount the Recovering Lender would have been paid had
the receipt or recovery been received or made by the Agent and
distributed in accordance with Clause 27 (Payment Mechanics),
without taking account of any Tax which would be imposed on the
Agent in relation to the receipt, recovery or distribution; and
(c) the Recovering Lender shall, within three Business Days of demand by
the Agent, pay to the Agent an amount (the "SHARING PAYMENT") equal
to such receipt or recovery less any amount which the Agent
determines may be retained by the Recovering Lender as its share of
any payment to be made, in accordance with Clause 27.5 (Partial
payments).
26.2 REDISTRIBUTION OF PAYMENTS
The Agent shall treat the Sharing Payment as if it had been paid by the
Borrower and distribute it between the Finance Parties (other than the
Recovering Lender) in accordance with Clause 27.5 (Partial payments).
26.3 RECOVERING LENDER'S RIGHTS
(a) On a distribution by the Agent under Clause 26.2 (Redistribution of
payments), the Recovering Lender will be subrogated to the rights of
the Finance Parties which have shared in the redistribution.
(b) If and to the extent that the Recovering Lender is not able to rely
on its rights under paragraph (a) above, the Borrower shall be
liable to the Recovering Lender for a debt equal to the Sharing
Payment which is immediately due and payable.
26.4 REVERSAL OF REDISTRIBUTION
If any part of the Sharing Payment received or recovered by a Recovering
Lender becomes repayable and is repaid by that Recovering Lender, then:
(a) each Finance Party which has received a share of the relevant
Sharing Payment pursuant to Clause 26.2 (Redistribution of payments)
shall, upon request of the Agent, pay to the Agent for account of
that Recovering Lender an amount equal to the appropriate part of
its share of the Sharing Payment
44
(together with an amount as is necessary to reimburse that
Recovering Lender for its proportion of any interest on the Sharing
Payment which that Recovering Lender is required to pay); and
(b) that Recovering Lender's rights of subrogation in respect of any
reimbursement shall be cancelled and the Borrower will be liable to
the reimbursing Lender for the amount so reimbursed.
26.5 EXCEPTIONS
(a) This Clause 26 shall not apply to the extent that the Recovering
Lender would not, after making any payment pursuant to this Clause,
have a valid and enforceable claim against the Borrower.
(b) A Recovering Lender is not obliged to share with any other Lender
any amount which the Recovering Lender has received or recovered as
a result of taking legal or arbitration proceedings, if:
(i) it notified the other Lenders of the legal or arbitration
proceedings; and
(ii) the other Lender had an opportunity to participate in those
legal or arbitration proceedings but did not do so as soon as
reasonably practicable having received notice and did not take
separate legal or arbitration proceedings.
27. PAYMENT MECHANICS
27.1 PAYMENTS TO THE AGENT
(a) On each date on which the Borrower or a Lender is required to make a
payment under a Finance Document, the Borrower or that Lender shall
make the same available to the Agent (unless a contrary indication
appears in a Finance Document) for value on the due date at the time
and in such funds specified by the Agent as being customary at the
time for settlement of transactions in the relevant currency in the
place of payment.
(b) Payment shall be made to such account in the principal financial
centre of the country of that currency with such bank as the Agent
specifies.
27.2 DISTRIBUTIONS BY THE AGENT
Each payment received by the Agent under the Finance Documents for another
Party shall, subject to Clause 27.3 (Distributions to the Borrower) and
Clause 27.4 (Clawback), be made available by the Agent as soon as
practicable after receipt to the Party entitled to receive payment in
accordance with this Agreement (in the case of a Lender, for the account
of its Facility Office), to such account as that Party may notify to the
Agent by not less than five Business Days' notice with a bank in the
principal financial centre of the country of that currency.
27.3 DISTRIBUTIONS TO THE BORROWER
The Agent may (with the Borrower's consent or in accordance with Clause 28
(Set-Off)) apply any amount received by it for the Borrower in or towards
payment (on the
45
date and in the currency and funds of receipt) of any amount due from the
Borrower under the Finance Documents or in or towards purchase of any
amount of any currency to be so applied.
27.4 CLAWBACK
(a) Where a sum is to be paid to the Agent under the Finance Documents
for another Party, the Agent is not obliged to pay that sum to that
other Party (or to enter into or perform any related exchange
contract) until it has been able to establish to its satisfaction
that it has actually received that sum.
(b) If the Agent pays an amount to another Party and it proves to be the
case that the Agent had not actually received that amount, then the
Party to whom that amount (or the proceeds of any related exchange
contract) was paid by the Agent shall on demand refund the same to
the Agent together with interest on that amount from the date of
payment to the date of receipt by the Agent, calculated by the Agent
to reflect its cost of funds.
27.5 PARTIAL PAYMENTS
(a) If the Agent receives a payment that is insufficient to discharge
all the amounts then due and payable by the Borrower under the
Finance Documents, the Agent shall apply that payment towards the
Borrower's obligations under the Finance Documents in the following
order:
(i) FIRST, in or towards payment pro rata of any unpaid fees,
costs and expenses of the Agent or the Arranger under the
Finance Documents;
(ii) SECONDLY, in or towards payment pro rata of any accrued
interest, fee or commission due but unpaid under this
Agreement;
(iii) THIRDLY, in or towards payment pro rata of any principal due
but unpaid under this Agreement; and
(iv) FOURTHLY, in or towards payment pro rata of any other sum due
but unpaid under the Finance Documents.
(b) The Agent shall, if so directed by the Majority Lenders, vary the
order set out in paragraphs (a)(ii) to (iv) above.
(c) Paragraphs (a) and (b) above will override any appropriation made by
the Borrower.
27.6 NO SET-OFF BY THE BORROWER
All payments to be made by the Borrower under the Finance Documents shall
be calculated and be made without (and free and clear of any deduction
for) set-off or counterclaim.
27.7 BUSINESS DAYS
(a) Any payment which is due to be made on a day that is not a Business
Day shall be made on the next Business Day in the same calendar
month (if there is one) or the preceding Business Day (if there is
not).
46
(b) During any extension of the due date for payment of any principal or
an Unpaid Sum under this Agreement interest is payable on the
principal or Unpaid Sum at the rate payable on the original due
date.
27.8 CURRENCY OF ACCOUNT
(a) Subject to paragraphs (b) to (e) below, US Dollars is the currency
of account and payment for any sum due from the Borrower under any
Finance Document.
(b) A repayment of an Unpaid Sum or a part of an Unpaid Sum shall be
made in the currency in which that Unpaid Sum is denominated on its
due date.
(c) Each payment of interest shall be made in the currency in which the
sum in respect of which the interest is payable was denominated when
that interest accrued.
(d) Each payment in respect of costs, expenses or Taxes shall be made in
the currency in which the costs, expenses or Taxes are incurred.
(e) Any amount expressed to be payable in a currency other than US
Dollars shall be paid in that other currency.
28. SET-OFF
A Finance Party may, at any time after the occurrence of an Event of
Default, set off any matured obligation due from the Borrower under the
Finance Documents (to the extent beneficially owned by that Finance Party)
against any matured obligation owed by that Finance Party to the Borrower,
regardless of the place of payment, booking branch or currency of either
obligation. If the obligations are in different currencies, the Finance
Party may convert either obligation at a market rate of exchange in its
usual course of business for the purpose of the set-off. That Finance
Party shall promptly notify the Borrower of any such set-off or
conversion.
29. NOTICES
29.1 COMMUNICATIONS IN WRITING
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be
made by fax or letter.
29.2 ADDRESSES
The address and fax number (and the department or officer, if any, for
whose attention the communication is to be made) of each Party for any
communication or document to be made or delivered under or in connection
with the Finance Documents is:
(a) in the case of the Borrower, that identified with its name at the
end of this Agreement;
(b) in the case of each Lender, that notified in writing to the Agent on
or prior to the date on which it becomes a Party; and
47
(c) in the case of the Agent, that identified with its name at the end
of this Agreement,
or any substitute address, fax number or department or officer as the
Party may notify to the Agent (or the Agent may notify to the other
Parties, if a change is made by the Agent) by not less than five Business
Days' notice.
29.3 DELIVERY
(a) Any communication or document made or delivered by one person to
another under or in connection with the Finance Documents will only
be effective:
(i) if by way of fax, when received in legible form; or
(ii) if by way of letter, when it has been left at the relevant
address or five Business Days after being deposited in the
post postage prepaid in an envelope addressed to it at that
address,
and, if a particular department or officer is specified as part of
its address details provided under Clause 29.2 (Addresses), if
addressed to that department or officer.
(b) Any communication or document to be made or delivered to the Agent
will be effective only when actually received by the Agent and then
only if it is expressly marked for the attention of the department
or officer identified below (or any substitute department or officer
as the Agent shall specify for this purpose).
(c) All notices from or to the Borrower shall be sent through the Agent.
29.4 NOTIFICATION OF ADDRESS AND FAX NUMBER
Promptly upon receipt of notification of an address and fax number or
change of address or fax number pursuant to Clause 29.2 (Addresses) or
changing its own address or fax number, the Agent shall notify the other
Parties.
29.5 ENGLISH LANGUAGE
(a) Any notice given under or in connection with any Finance Document must be
in English.
(b) All other documents provided under or in connection with any Finance
Document must be:
(i) in English; or
(ii) if not in English, and if so required by the Agent, accompanied by a
certified English translation and, in this case, the English
translation will prevail unless the document is a constitutional,
statutory or other official document.
48
30. CALCULATIONS AND CERTIFICATES
30.1 ACCOUNTS
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters to
which they relate.
30.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or amount
under any Finance Document shall set out the computation thereof and is,
in the absence of manifest error, conclusive evidence of the matters to
which it relates.
30.3 DAY COUNT CONVENTION
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual number
of days elapsed and a year of 360 days or, in any case where the practice
in the London interbank market differs, in accordance with that market
practice.
31. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction will in any way be
affected or impaired.
32. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver, nor shall any single or partial exercise of any right
or remedy prevent any further or other exercise or the exercise of any
other right or remedy. The rights and remedies provided in this Agreement
are cumulative and not exclusive of any rights or remedies provided by
law.
33. AMENDMENTS AND WAIVERS
33.1 REQUIRED CONSENTS
(a) Subject to Clause 33.2 (Exceptions) any term of the Finance
Documents may be amended or waived only with the consent of the
Majority Lenders and the Borrower and any such amendment or waiver
will be binding on all Parties.
(b) The Agent may effect, on behalf of any Finance Party, any amendment
or waiver permitted by this Clause.
33.2 EXCEPTIONS
(a) An amendment or waiver that has the effect of changing or which
relates to:
49
(i) the definition of "Majority Lenders" in Clause 1.1
(Definitions);
(ii) an extension to the date of payment of any amount under the
Finance Documents;
(iii) a reduction in the Margin or a reduction in the amount of any
payment of principal, interest, fees or commission payable;
(iv) an increase in or an extension of any Commitment;
(v) a change to Clause 23 (Changes to the Borrower);
(vi) any provision which expressly requires the consent of all the
Lenders; or
(vii) Clause 2.2 (Finance Parties' rights and obligations), Clause
22 (Changes to the Lenders), Clause 26 (Sharing among the
Lenders), or this Clause 33,
(b) An amendment or waiver which relates to the rights or obligations of
the Agent or the Arranger may not be effected without the consent of
the Agent or the Arranger.
34. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were on
a single copy of the Finance Document.
35. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with, the
laws of Singapore.
THIS AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE BEGINNING OF THIS
AGREEMENT.
50
SCHEDULE 1
THE ORIGINAL LENDERS
Name of Original Lender Facility A Commitment
Sumitomo Mitsui Banking Corporation, Singapore Branch US$150,000,000
Oversea-Chinese Banking Corporation Limited US$50,000,000
51
SCHEDULE 2
CONDITIONS PRECEDENT
1. THE BORROWER
(a) A copy of the Memorandum and Articles of Association of the Borrower.
(b) A copy of a resolution of the board of directors of the Borrower:
(i) approving the terms of, and the transactions contemplated by, the
Finance Documents and resolving that it execute the Finance
Documents;
(ii) authorising a specified person or persons to execute the Finance
Documents on its behalf; and
(iii) authorising a specified person or persons, on its behalf, to sign
and/or despatch all documents and notices (including, if relevant,
any Utilisation Request and Selection Notice) to be signed and/or
despatched by it under or in connection with the Finance Documents.
(c) A specimen of the signature of each person authorised by the resolution
referred to in paragraph (b) above.
(d) A certificate of the Borrower (signed by a director) confirming that
borrowing the Total Commitments would not cause any borrowing or similar
limit binding on the Borrower to be exceeded.
(e) A certificate of an authorised signatory of the Borrower certifying that
each copy document relating to it specified in this Schedule 2 is correct,
complete and in full force and effect as at a date no earlier than the
date of this Agreement.
2. OTHER DOCUMENTS AND EVIDENCE
(a) The Original Financial Statements.
(b) Evidence that the fees, costs and expenses then due from the Borrower
pursuant to Clause 11 (Fees) and Clause 16 (Costs and Expenses) have been
paid or will be paid by the first Utilisation Date.
52
SCHEDULE 3
REQUESTS
PART I
UTILISATION REQUEST
From: Chartered Semiconductor Manufacturing Ltd.
To: Sumitomo Mitsui Banking Corporation, Singapore Branch
Dated:
Dear Sirs
CHARTERED SEMICONDUCTOR MANUFACTURING LTD.
FACILITY AGREEMENT
DATED__________ (THE "AGREEMENT")
1. We refer to the Agreement. This is a Utilisation Request. Terms defined in
the Agreement have the same meaning when used in this Utilisation Request
unless given a different meaning in this Utilisation Request.
2. We wish to borrow a Loan on the following terms:
Proposed Utilisation Date: [______] (or, if that is not a Business Day,
the next Business Day)
Amount: [______] or, if less, the Available Facility
Interest Period: [______]
Facility to be utilised: [Facility A]/[Facility B]
3. We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Utilisation Request.
4. The proceeds of this Loan should be credited to [account].
5. This Utilisation Request is irrevocable.
Yours faithfully
------------------------
authorised signatory for
Chartered Semiconductor Manufacturing Ltd.
53
PART II
Selection Notice
From: Chartered Semiconductor Manufacturing Ltd.
To: Sumitomo Mitsui Banking Corporation, Singapore Branch
Dated:
Dear Sirs
CHARTERED SEMICONDUCTOR MANUFACTURING LTD.
FACILITY AGREEMENT
DATED________ (THE "AGREEMENT")
1. We refer to the Agreement. This is a Selection Notice. Terms defined in
the Agreement have the same meaning when used in this Selection Notice
unless given a different meaning in this Selection Notice.
2. We refer to the following Loan[s] with an Interest Period ending on
[_________].*
3. We request that the next Interest Period for the above Loan[s] is
[_________].*
4. This Selection Notice is irrevocable.
Yours faithfully
------------------------
authorised signatory for
Chartered Semiconductor Manufacturing Ltd.
-------------
* Insert details of all Loans which have an Interest Period ending on the same
date.
54
SCHEDULE 4
FORM OF TRANSFER CERTIFICATE
To: Sumitomo Mitsui Banking Corporation, Singapore Branch
as Agent
From: [The Existing Lender] (the "EXISTING LENDER") and [The New Lender] (THE
"NEW LENDER")
Dated:
CHARTERED SEMICONDUCTOR MANUFACTURING LTD.
FACILITY AGREEMENT
DATED________ (THE "AGREEMENT")
1. We refer to the Agreement. This is a Transfer Certificate. Terms defined
in the Agreement have the same meaning when used in this Transfer
Certificate unless given a different meaning in this Transfer Certificate.
2. We refer to Clause 22.5 (Procedure for transfer):
(a) The Existing Lender and the New Lender agree to the Existing Lender
transferring to the New Lender by novation all or part of the
Existing Lender's Commitment, rights and obligations referred to in
the Schedule in accordance with Clause 22.5 (Procedure for
transfer).
(b) The proposed Transfer Date is [_______].
(c) The Facility Office and address, fax number and attention details
for notices of the New Lender for the purposes of Clause 29.2
(Addresses) are set out in the Schedule.
3. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (c) of Clause 22.4 (Limitation
of responsibility of Existing Lenders).
4. This Transfer Certificate shall be governed by, and construed in
accordance with, the laws of Singapore.
55
THE SCHEDULE
COMMITMENT/RIGHTS AND OBLIGATIONS TO BE TRANSFERRED
[insert relevant details]
[Facility Office address, fax number and attention details for notices and
account details for payments.]
[Existing Lender] [New Lender]
By: By:
This Transfer Certificate is accepted by the Agent and the Transfer Date is
confirmed as [________].
[Agent]
By:
56
SCHEDULE 5
FORM OF COMPLIANCE CERTIFICATE
To: Sumitomo Mitsui Banking Corporation, Singapore Branch as Agent
From: Chartered Semiconductor Manufacturing Ltd.
Dated:
Dear Sirs
CHARTERED SEMICONDUCTOR MANUFACTURING LTD.
FACILITY AGREEMENT
DATED_________ (THE "AGREEMENT")
1. We refer to the Agreement. This is a Compliance Certificate. Terms defined
in the Agreement have the same meaning when used in this Compliance
Certificate unless given a different meaning in this Compliance
Certificate.
2. We confirm that:
(a) as at [ ], Consolidated Net Worth was [US$ ]; and
(b) as at [ ], Consolidated Total Gross Debt was [ ] per cent. of
Consolidated Net Worth.
3. [We confirm that no Default is continuing.]*
Signed: .................
[Director] / [Authorised Signatory] of Chartered Semiconductor Manufacturing
Ltd.
----------------
* If this statement cannot be made, the certificate should identify any Default
that is continuing and the steps, if any, being taken to remedy it.
57
SCHEDULE 6
FORM OF LENDER ACCESSION NOTICE(S) AND COMMITMENT INCREASE NOTICE(S)
Part I - Form of Lender Accession Notice
To: Sumitomo Mitsui Banking Corporation, Singapore Branch as Agent
Dated:
CHARTERED SEMICONDUCTOR MANUFACTURING LTD.
FACILITY AGREEMENT
DATED_______ (THE "AGREEMENT")
1. We refer to the Agreement. Terms defined in the Agreement have the same
meaning when used herein.
2. This undertaking is given pursuant to Clause 22.7 of the Agreement.
3. In consideration of our being accepted as an Acceding Lender for the
purposes of the Agreement, we hereby undertake and agree to be bound by
all the provisions of the Agreement with effect on and from [ ] (the
"ACCESSION DATE") as if we had originally been a party thereto as a
Facility B Lender with a Facility B Commitment of US$[ ].
4. For the purposes of Clause 32 of the Agreement and until further notice to
you, our address and telefax numbers shall be as follows:
Address:
Telefax No.
For and on behalf of
[Acceding Lender]
.....................
58
Part II - Commitment Increase Notice
To: Sumitomo Mitsui Banking Corporation, Singapore Branch as Agent
Dated:
CHARTERED SEMICONDUCTOR MANUFACTURING LTD.
FACILITY AGREEMENT
DATED_______ (THE "AGREEMENT")
1. We refer to the Agreement. Terms defined in the Agreement have the same
meaning when used herein.
2. This undertaking is given pursuant to Clause 22.8 of the Agreement.
3. In consideration of our Commitment Increase herein being accepted for the
purposes of the Agreement, we hereby undertake and agree to be bound by
all the provisions of the Agreement, with effect on and from [ ] (the
"COMMITMENT INCREASE DATE"), as if we had originally been a party thereto
with an [INCREASED] aggregate Facility B Commitment (the "AGGREGATE
FACILITY B COMMITMENT") of US$[ ] (being the sum of (a) our Facility B
Commitment prior to the date of this Commitment Increase Notice and (b)
US$[ ] (the "COMMITMENT INCREASE")).
For and on behalf of
[Facility B Lender]
.......................
59
SCHEDULE 7
TIMETABLES
"D -" refers to the number of Business Days before the relevant Utilisation
Date/the first day of the relevant Interest Period.
Delivery of a duly completed Utilisation D - 5
Request (Clause 5.1 (Delivery of a 11:00 a.m.
Utilisation Request))
Delivery of a duly completed Selection D - 2
Notice (Clause 9.1 (Selection of Interest 11:00 a.m.
Periods))
Agent notifies the Lenders of the Loan in D - 3
accordance with Clause 5.4 (Lenders' 11:00 a.m.
participation)
LIBOR is fixed Quotation Day
as of 11:00 a.m. (London Time)
60
IN WITNESS WHEREOF this Agreement has been entered into on the date stated at
the beginning.
THE BORROWER
CHARTERED SEMICONDUCTOR MANUFACTURING LTD.
Address: ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax No: ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
By: /s/ CHIA SONG HWEE
CHIEF EXECUTIVE OFFICER
THE ARRANGER
OVERSEA-CHINESE BANKING CORPORATION LIMITED
Address: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ #▇▇-▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax No: ▇▇▇▇ ▇▇▇▇ / 6536 6449
Attention: ▇▇▇▇▇ ▇▇ / ▇▇▇▇▇▇▇ ▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇ LAP WAH
HEAD, GROUP INVESTMENT BANKING
SUMITOMO MITSUI BANKING CORPORATION
Address: ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ #▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax No: ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇, VP / ▇▇▇▇▇ Theseira, VP
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
GENERAL MANAGER, DEBT CAPITAL MARKETS DEPARTMENT
61
THE ORIGINAL LENDERS
OVERSEA-CHINESE BANKING CORPORATION LIMITED
Address: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ #▇▇-▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax No: ▇▇▇▇ ▇▇▇▇ / 6536 6449
Attention: ▇▇▇▇▇ ▇▇ / ▇▇▇▇▇▇▇ ▇▇▇
By: /s/ GOH ▇▇▇▇▇ ▇▇▇▇▇
SUMITOMO MITSUI BANKING CORPORATION, SINGAPORE BRANCH
Address: ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ #▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax No: ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇, VP / ▇▇▇▇▇▇ ▇▇, VP
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
DIRECTOR AND GENERAL MANAGER
THE AGENT
SUMITOMO MITSUI BANKING CORPORATION, SINGAPORE BRANCH
Address: ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ #▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax No: ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇, VP / ▇▇▇▇▇▇ ▇▇, VP
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
DIRECTOR AND GENERAL MANAGER
62