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EXHIBIT 4.3
DATED 14TH DECEMBER, 2000
CHARTERED SILICON PARTNERS PTE LTD
AS BORROWER
ABN AMRO BANK N.V., SINGAPORE BRANCH
BAYERISCHE LANDESBANK GIROZENTRALE, SINGAPORE BRANCH
CITIBANK, N.A., SINGAPORE
OVERSEAS UNION BANK LIMITED
THE SUMITOMO BANK, LIMITED
AS ARRANGERS
DANSKE BANK A/S
(FORMERLY KNOWN AS DEN DANSKE BANK AKTIESELSKAB, SINGAPORE BRANCH)
AS SENIOR LEAD MANAGER
THE BANK OF TOKYO-MITSUBISHI, LTD., SINGAPORE BRANCH
AS LEAD MANAGER
THE SANWA BANK LIMITED, SINGAPORE BRANCH
AS MANAGER
ABN AMRO BANK N.V., SINGAPORE BRANCH
BAYERISCHE LANDESBANK GIROZENTRALE, SINGAPORE BRANCH
CITIBANK, N.A., SINGAPORE
OVERSEAS UNION BANK LIMITED
THE SUMITOMO BANK, LIMITED, SINGAPORE BRANCH
THE SANWA BANK LIMITED, SINGAPORE BRANCH
THE BANK OF TOKYO-MITSUBISHI, LTD., SINGAPORE BRANCH
DANSKE BANK A/S
(FORMERLY KNOWN AS DEN DANSKE BANK AKTIESELSKAB, SINGAPORE BRANCH)
AS GUARANTOR BANKS
ABN AMRO BANK N.V., SINGAPORE BRANCH
BAYERISCHE LANDESBANK GIROZENTRALE, SINGAPORE BRANCH
CITIBANK, N.A., SINGAPORE
OVERSEAS UNION BANK LIMITED
THE SUMITOMO BANK, LIMITED, SINGAPORE BRANCH
THE BANK OF TOKYO-MITSUBISHI, LTD., SINGAPORE BRANCH
DANSKE BANK A/S
(FORMERLY KNOWN AS DEN DANSKE BANK AKTIESELSKAB, SINGAPORE BRANCH)
AS LENDING BANKS
ABN AMRO BANK N.V., SINGAPORE BRANCH
AS AGENT
- AND -
ABN AMRO BANK N.V., SINGAPORE BRANCH
AS SECURITY TRUSTEE
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THIRD SUPPLEMENTAL AGREEMENT
(RELATING TO THE CREDIT AGREEMENT DATED 12TH MARCH, 1998
AS SUPPLEMENTED BY
(1) THE FIRST SUPPLEMENTAL AGREEMENT DATED 14TH DECEMBER, 1998; AND
(2) THE SECOND SUPPLEMENTAL AGREEMENT DATED 9TH NOVEMBER, 1999)
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C O N T E N T S
CLAUSE HEADING PAGE
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1. INTERPRETATION 2
2. AMENDMENTS TO AND RESTATEMENT OF THE
CREDIT AGREEMENT 2
3. REPRESENTATIONS AND WARRANTIES 3
4. EXPENSES AND STAMP DUTY 3
5. GOVERNING LAW 3
SCHEDULE 1 -- BANKS 4
SCHEDULE 2 -- CONDITIONS PRECEDENT 5
SCHEDULE 3 -- FORM OF AMENDED AND RESTATED
CREDIT AGREEMENT 6
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T H I S T H I R D S U P P L E M E N T A L A G R E E M E N T
is made on 14th December, ▇▇▇▇ ▇ ▇ ▇ ▇ ▇ ▇ N:-
(1) CHARTERED SILICON PARTNERS PTE LTD (the "Borrower");
(2) ABN AMRO BANK N.V., SINGAPORE BRANCH, BAYERISCHE LANDESBANK
GIROZENTRALE, SINGAPORE BRANCH, CITIBANK, N.A., SINGAPORE, OVERSEAS
UNION BANK LIMITED and THE SUMITOMO BANK, LIMITED (the "Arrangers");
(3) THE SEVERAL BANKS AND FINANCIAL INSTITUTIONS named in Part A of
Schedule 1 (the "Guarantor Banks");
(4) THE SEVERAL BANKS AND FINANCIAL INSTITUTIONS named in Part B of
Schedule 1 (the "Lending Banks");
(5) ABN AMRO BANK N.V., SINGAPORE BRANCH, as agent for and on behalf of
the Banks (as defined in the Credit Agreement referred to below) (in
such capacity, the "Agent", which expression shall include any of its
successors in such capacity); and
(6) ABN AMRO BANK N.V., SINGAPORE BRANCH, as security trustee for the
Banks (as defined in the Credit Agreement referred to below) (in such
capacity, the "Security Trustee", which expression shall include any
of its successors in such capacity),
and amends a Credit Agreement (the "Credit Agreement") dated 12th March, 1998
made between (1) the Borrower, as borrower, (2) the Arrangers, as arrangers, (3)
the Guarantor Banks, as guarantor banks, (4) the Lending Banks, as lending
banks, and (5) the Agent, as agent, as supplemented by (i) a first supplemental
agreement (the "First Supplemental Agreement") dated 14th December, 1998 made
between the parties to the Credit Agreement and (ii) a second supplemental
agreement (the "Second Supplemental Agreement") dated 9th November, 1999 made
between the parties to the Credit Agreement.
W H E R E A S:-
(A) Pursuant to the Credit Agreement, (1) the Guarantor Banks agreed to
grant to the Borrower a S$236,800,000 guarantee facility and (2) the Lending
Banks agreed to grant to the Borrower a US$143,200,000 term loan facility, upon
the terms and subject to the conditions of the Credit Agreement.
(B) Pursuant to the First Supplemental Agreement, the Borrower, the
Arrangers, the Guarantor Banks, the Lending Banks and the Agent have agreed to
amend the Credit Agreement, on the terms and subject to the conditions of the
First Supplemental Agreement.
(C) Pursuant to the Second Supplemental Agreement, the Borrower, the
Arrangers, the Guarantor Banks, the Lending Banks and the Agent have agreed to
amend the Credit Agreement, on the terms and subject to the conditions of the
Second Supplemental Agreement.
(D) The Borrower wishes to amend certain provisions of the Credit
Agreement (as supplemented by the First Supplemental Agreement and the Second
Supplemental Agreement) and has requested the Arrangers, the Guarantor Banks,
the Lending Banks and the Agent to make, and the Arrangers, the Guarantor Banks,
the Lending Banks and the Agent have agreed on the terms and subject to the
conditions set out in this Supplemental Agreement to make, the amendments to the
Credit Agreement (as supplemented by the First Supplemental Agreement and the
Second Supplemental Agreement) set out in this Supplemental Agreement.
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I T I S A G R E E D as follows:-
1. INTERPRETATION
(A) Definitions: In this Supplemental Agreement, except to the extent
that the context requires otherwise":-
"Effective Date" shall have the meaning ascribed to it in Clause 2(A);
"First Supplemental Undertaking" means the first supplemental
shareholders undertaking dated 16th December, 1998 made between (1)
the Borrower, (2) Chartered Semiconductor Manufacturing Ltd, EDB
Investments Pte Ltd and Hewlett-Packard Europe B.V., as shareholders,
and (3) the Agent;
"Restated Credit Agreement" means the Credit Agreement as amended and
restated on the terms of Schedule 3;
"Second Supplemental Undertaking" means the second supplemental
shareholders undertaking dated 9th November, 1999 made between (1) the
Borrower, (2) Agilent Technologies Europe B.V., Chartered
Semiconductor Manufacturing Ltd and EDB Investments Pte Ltd, as
shareholders, (3) Hewlett-Packard Europe B.V., as retiring
shareholder, and (4) the Agent;
"Shareholders Undertaking" means the shareholders undertaking dated
1st July, 1998 made between (1) the Borrower, (2) Chartered
Semiconductor Manufacturing Ltd, EDB Investments Pte Ltd and
Hewlett-Packard Europe B.V., as shareholders, and (3) the Agent; and
"Third Supplemental Undertaking" means the third supplemental
shareholders undertaking made or to be made between (1) the Borrower,
(2) the Shareholders and (3) the Agent, being supplemental to the
Shareholders Undertaking, as supplemented by the First Supplemental
Undertaking and the Second Supplemental Undertaking.
(B) Construction of Certain References: All terms and references used in
the Credit Agreement and which are defined or construed in the Credit Agreement
but are not defined or construed in this Supplemental Agreement shall have the
same meaning and construction in this Supplemental Agreement. All references in
this Supplemental Agreement to the Credit Agreement shall be to the Credit
Agreement as amended, supplemented or modified by the First Supplemental
Agreement and the Second Supplemental Agreement.
(C) Miscellaneous: The headings in this Supplemental Agreement are
inserted for convenience only and shall be ignored in construing this
Supplemental Agreement. Unless otherwise stated, references to "Clauses" and
"Schedules" are to be construed as references to the clauses of, and the
schedules to, this Supplemental Agreement.
2. AMENDMENTS TO AND RESTATEMENT OF THE CREDIT AGREEMENT
(A) Supplemental Agreement: This Supplemental Agreement is and shall be
construed as supplemental to the Credit Agreement and every Clause thereof shall
continue in full force and effect and be binding on the parties thereto save as
expressly amended and supplemented by this Supplemental Agreement. In addition,
except as expressly provided for herein, this Supplemental Agreement shall not
affect any rights or interests of the Borrower, the Agent and the Banks
whatsoever existing immediately prior to February 23, 2001
(the "Effective Date").
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(B) Amendment and Restatement of Credit Agreement: The parties agree that
the Credit Agreement shall, with effect on and from the Effective Date, be
amended and restated in the form of the Restated Credit Agreement so that the
rights and obligations of the parties to this Supplemental Agreement under the
Credit Agreement shall, on and after the Effective Date, be governed by, and
construed in accordance with, the Restated Credit Agreement provided that (1) on
or before the Effective Date, the Agent has notified the Borrower, the Guarantor
Banks and the Lending Banks that it has received (in form and substance
reasonably satisfactory to it) each of the documents specified in Schedule 2 and
(2) on the Effective Date (a) the representations and warranties contained in
Clause 14 of the Credit Agreement and in Clause 3 are true and correct in all
respects as of the Effective Date as if made on the Effective Date with respect
to the facts and circumstances existing at such date and (b) no Event of Default
has occurred and is continuing.
3. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to and for the benefit of each of
the other parties to this Supplemental Agreement that:-
(1) all action, conditions and things required to be taken, fulfilled
and done (including the obtaining of any necessary consents, if
applicable) in order (a) to enable it lawfully to enter into,
exercise its rights and perform and comply with its obligations
under this Supplemental Agreement and (b) to make this
Supplemental Agreement admissible in evidence in the courts of
Singapore, have been taken, fulfilled and done;
(2) its entry into, exercise of its rights and/or performance of or
compliance with its obligations under this Supplemental Agreement
and the Restated Credit Agreement, do not and will not violate
(a) any law to which it is subject or (b) any provision of its
Memorandum and Articles of Association; and
(3) this Supplemental Agreement and the Restated Credit Agreement,
constitute its valid, binding and enforceable obligations in
accordance with their respective terms.
4. EXPENSES AND STAMP DUTY
The Borrower shall pay:-
(1) on demand, all costs and expenses (including legal fees and all
goods and services, value added and other duties or taxes payable
on such costs and expenses) reasonably incurred by the Agent in
connection with the preparation, negotiation and entry into of
this Supplemental Agreement and the Restated Credit Agreement;
and
(2) promptly, and in any event before any penalty becomes payable,
any stamp, goods and services, value added, documentary or
similar duty or tax payable in connection with the entry into,
performance, enforcement and admissibility in evidence of either
of this Supplemental Agreement and the Restated Credit Agreement,
and shall indemnify the Agent and the Banks against any liability
with respect to or resulting from any delay in paying or omission
to pay any such tax.
5. GOVERNING LAW
This Supplemental Agreement shall be governed by, and construed in
accordance with, the laws of Singapore.
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S C H E D U L E 1
BANKS
Part A - Guarantor Banks
1. ABN AMRO Bank, N.V., Singapore Branch
2. Bayerische Landesbank Girozentrale, Singapore Branch
3. Citibank, N.A., Singapore
4. Overseas Union Bank Limited
5. The Sumitomo Bank, Limited, Singapore Branch
6. The Sanwa Bank Limited, Singapore Branch
7. The Bank of Tokyo-Mitsubishi, Ltd., Singapore Branch
8. Danske Bank A/S
(formerly known as Den Danske Bank Aktieselskab, Singapore Branch)
Part B - Lending Banks
1. ABN AMRO Bank, N.V., Singapore Branch
2. Bayerische Landesbank Girozentrale, Singapore Branch
3. Citibank, N.A., Singapore
4. Overseas Union Bank Limited
5. The Sumitomo Bank, Limited, Singapore Branch
6. The Bank of Tokyo-Mitsubishi, Ltd., Singapore Branch
7. Danske Bank A/S
(formerly known as Den Danske Bank Aktieselskab, Singapore Branch)
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S C H E D U L E 2
CONDITIONS PRECEDENT
1. A copy, certified true by an authorised officer of the Borrower
as being in full force and effect on the date thereof, of:-
(1) all actions required to be taken by the Borrower (a) authorising
the entry into of this Supplemental Agreement and (b) authorising
appropriate persons to execute and deliver this Supplemental
Agreement on behalf of the Borrower and to take any action
contemplated in this Supplemental Agreement; and
(2) all necessary consents required by the Borrower for the
execution, delivery and performance of this Supplemental
Agreement or, if no such consents are necessary, a certificate to
that effect from a person duly authorised by the Borrower so to
certify.
2. Specimen signatures of the respective persons referred to in
paragraph 1 above, duly certified, together with certificates of incumbency,
also duly certified, in respect of each such person.
3. A copy, certified true by an authorised officer of each of the
Shareholders as being in full force and effect on the date thereof, of:-
(1) all actions required to be taken by that Shareholder
(a) authorising the entry into of the Third Supplemental
Undertaking and (b) authorising appropriate persons to execute
and deliver the Third Supplemental Undertaking on behalf of that
Shareholder and to take any action contemplated in the Third
Supplemental Undertaking; and
(2) all necessary consents required by that Shareholder for the
execution, delivery and performance of the Third Supplemental
Undertaking or, if no such consents are necessary, a certificate
to that effect from a person duly authorised by that Shareholder
so to certify.
4. Specimen signatures of the respective persons referred to in
paragraph 3 above, duly certified, together with certificates of incumbency,
also duly certified, in respect of each such person.
5. The Third Supplemental Undertaking, duly executed by each of the
Borrower and the Shareholders.
6. A certified true copy of the DSRA Account Charge.
7. A certified true copy of the Project Account Charge.
8. A certified true copy of the Trust Deed.
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S C H E D U L E 3
FORM OF AMENDED AND RESTATED
CREDIT AGREEMENT
Originally dated 12th March, 1998 as
amended on 14th December, 1998 by a First Supplemental Agreement,
on 9th November, 1999 by a Second Supplemental Agreement and
on 14th December, 2000 by a Third Supplemental Agreement
CHARTERED SILICON PARTNERS PTE LTD
as Borrower
ABN AMRO BANK N.V., SINGAPORE BRANCH
BAYERISCHE LANDESBANK GIROZENTRALE, SINGAPORE BRANCH
CITIBANK, N.A., SINGAPORE
OVERSEAS UNION BANK LIMITED
THE SUMITOMO BANK, LIMITED
as Arrangers
DANSKE BANK A/S
(formerly known as DEN DANSKE BANK AKTIESELSKAB, SINGAPORE BRANCH)
as Senior Lead Manager
THE BANK OF TOKYO-MITSUBISHI, LTD., SINGAPORE BRANCH
as Lead Manager
THE SANWA BANK LIMITED, SINGAPORE BRANCH
as Manager
ABN AMRO BANK N.V., SINGAPORE BRANCH
BAYERISCHE LANDESBANK GIROZENTRALE, SINGAPORE BRANCH
CITIBANK, N.A., SINGAPORE
OVERSEAS UNION BANK LIMITED
THE SUMITOMO BANK, LIMITED, SINGAPORE BRANCH
THE SANWA BANK LIMITED, SINGAPORE BRANCH
THE BANK OF TOKYO-MITSUBISHI, LTD., SINGAPORE BRANCH
DANSKE BANK A/S
(formerly known as DEN DANSKE BANK AKTIESELSKAB, SINGAPORE BRANCH)
as Guarantor Banks
ABN AMRO BANK N.V., SINGAPORE BRANCH
BAYERISCHE LANDESBANK GIROZENTRALE, SINGAPORE BRANCH
CITIBANK, N.A., SINGAPORE
OVERSEAS UNION BANK LIMITED
THE SUMITOMO BANK, LIMITED, SINGAPORE BRANCH
THE BANK OF TOKYO-MITSUBISHI, LTD., SINGAPORE BRANCH
DANSKE BANK A/S
(formerly known as DEN DANSKE BANK AKTIESELSKAB, SINGAPORE BRANCH)
as Lending Banks
ABN AMRO BANK N.V., SINGAPORE BRANCH
as Agent
- and -
ABN AMRO BANK N.V., SINGAPORE BRANCH
as Security Trustee
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CREDIT AGREEMENT
for
(1) a S$236,800,000 Guarantee Facility
(2) a US$143,200,000 Term Loan Facility
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C O N T E N T S
CLAUSE HEADING PAGE
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1. INTERPRETATION 10
2. THE FACILITIES 21
3. CONDITIONS PRECEDENT 21
4. ISSUE OF EDB GUARANTEE 21
5. INDEMNITY TO GUARANTOR BANKS 22
6. ADVANCES 24
7. REPAYMENT AND PREPAYMENT 25
8. CANCELLATION 26
9. INTEREST 26
10. FEES 27
11. TAXES 29
12. CHANGES IN CIRCUMSTANCES 30
13. PAYMENTS 33
14. REPRESENTATIONS AND WARRANTIES 36
15. INFORMATION 38
16. UNDERTAKINGS 39
17. EVENTS OF DEFAULT 43
18. DEFAULT INTEREST 48
19. INDEMNITIES 49
20. THE AGENT AND ARRANGERS 50
21. THE SECURITY TRUSTEE 53
22. SET-OFF AND PRO RATA SHARING 56
23. EXPENSES AND STAMP DUTY 57
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CLAUSE HEADING PAGE
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24. CALCULATIONS AND EVIDENCE 57
25. BENEFIT OF AGREEMENT 57
26. REMEDIES, WAIVERS, AMENDMENTS
AND CONSENTS 59
27. COMMUNICATIONS 59
28. PARTIAL INVALIDITY 60
29. NATURE OF RIGHTS AND OBLIGATIONS 60
30. GOVERNING LAW 60
SCHEDULE 1 -- BANKS AND COMMITMENTS 61
SCHEDULE 2 -- FORM OF TRANSFER NOTICE 63
SCHEDULE 3 -- CONDITIONS PRECEDENT 65
SCHEDULE 4 -- FORM OF REQUEST FOR ISSUE
OF EDB GUARANTEE 67
SCHEDULE 5 -- FORM OF REQUEST FOR
ADVANCE 69
SCHEDULE 6 -- FORM OF DRAWDOWN SCHEDULE 71
APPENDIX A -- FORM OF EDB GUARANTEE ▇▇
▇▇▇▇▇▇▇▇ ▇ -- FORM OF SHAREHOLDERS
UNDERTAKING 90
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T H I S A G R E E M E N T is originally made on 12th March, ▇▇▇▇
▇ ▇ ▇ ▇ ▇ ▇ N:-
(1) CHARTERED SILICON PARTNERS PTE LTD (the "Borrower");
(2) ABN AMRO BANK N.V., SINGAPORE BRANCH, BAYERISCHE LANDESBANK
GIROZENTRALE, SINGAPORE BRANCH, CITIBANK, N.A., SINGAPORE, OVERSEAS
UNION BANK LIMITED and THE SUMITOMO BANK, LIMITED (the "Arrangers");
(3) THE SEVERAL BANKS AND FINANCIAL INSTITUTIONS named in Part A of
Schedule 1 (the "Guarantor Banks");
(4) THE SEVERAL BANKS AND FINANCIAL INSTITUTIONS named in Part B of
Schedule 1 (the "Lending Banks");
(5) ABN AMRO BANK N.V., SINGAPORE BRANCH, as agent for and on behalf of
the Banks (in such capacity, the "Agent", which expression shall
include any of its successors in such capacity); and
(6) ABN AMRO BANK N.V., SINGAPORE BRANCH, as security trustee for the
Banks (in such capacity, the "Security Trustee", which expression
shall include any of its successors in such capacity).
W H E R E A S, as a result of arrangements by the Arrangers made at
the request of the Borrower, (1) the Guarantor Banks are willing to grant to the
Borrower a S$236,800,000 guarantee facility and (2) the Lending Banks are
willing to grant to the Borrower a US$143,200,000 term loan facility, upon the
terms and subject to the conditions of this Agreement.
I T I S A G R E E D as follows:-
1. INTERPRETATION
(A) Definitions: In this Agreement, except to the extent that the
context requires otherwise:-
"Advance" means an advance made or to be made by the Lending Banks to
the Borrower under this Agreement or, as the case may be, the
outstanding principal amount of any such advance;
"ATE" means Agilent Technologies Europe B.V., a company incorporated
in the Netherlands;
"ATI" means Agilent Technologies Inc., a company incorporated in
Delaware, United States of America;
"ATI Guarantee" means the guarantee dated 9th November, 1999 from ATI
in favour of the Agent, which shall be effective for the period
commencing on and from 1st April, 2001 and ending on 31st March, 2003;
"Available Commitment" means, in relation to a Lending Bank, its Term
Commitment less its share of the Advances made by the Lending Banks
under this Agreement;
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"Available EDB Amount" means, in relation to an Utilisation Period,
and subject as provided in this Agreement, the amount specified
against that Utilisation Period in column (2) of the Drawdown
Schedule;
"Available Facility" means the total amount of the Available
Commitments of all the Lending Banks;
"Available Term Amount" means, in relation to an Utilisation Period,
and subject as provided in this Agreement, the amount specified
against that Utilisation Period in column (3) of the Drawdown Schedule
as the aggregate amount of the Term Commitments which is available for
drawing by the Borrower under this Agreement;
"Banks" means the Guarantor Banks and the Lending Banks (and includes
their respective successors and assigns);
"Borrowings" means, at any particular time, but without double
counting, the aggregate outstanding principal, capital or nominal
amount of the indebtedness of the Borrower in respect of borrowed
money (whether actual, contingent or otherwise) and, to the extent not
otherwise taken into account, shall in any event include:-
(1) Any indebtedness for moneys borrowed or raised by the Borrower;
(2) any indebtedness of the Borrower to any bank or other financial
institution under any guarantee, indemnity, security or other
commitment designed to assure any creditor against loss in
respect of any indebtedness of any other person;
(3) any indebtedness under any acceptance credit opened on behalf of
the Borrower;
(4) the principal amount of any factored debts and discounted
receivables for which there is recourse to the Borrower;
(5) any indebtedness under any debenture, note, ▇▇▇▇ of exchange or
commercial paper on which the Borrower is liable as drawer,
acceptor, endorser, issuer or otherwise; and
(6) any amounts payable under any financial lease or agreement
entered into by the Borrower primarily for the purposes of
raising or obtaining finance whether in respect of land,
machinery, equipment or under any hire purchase agreement or any
agreement for the conditional sale of goods or equipment on
deferred terms (excluding, for the avoidance of doubt, any
operating lease in respect of machinery or equipment entered into
by the Borrower on normal commercial terms in the ordinary course
of business),
but less any indebtedness of the Borrower to the Shareholders or any
related corporation of the Borrower which is subordinated to the
Borrower's obligations under the Financing Documents (either pursuant
to the Shareholders Undertaking or otherwise in a manner and on terms
satisfactory to the Majority Banks);
"Business Day" means a day (other than Saturday or Sunday) on which
(1) deposits in Singapore Dollars and US Dollars may be dealt in on
the Singapore inter-bank market, (2) commercial banks are open for
business in Singapore, and (3) if on that day a transfer of funds is
to be made under this Agreement in US Dollars, commercial banks are
open for business in Singapore and New York City;
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"Calculation Dates" means each 30th June and 31st December falling
after the date of this Agreement;
"Calculation Period" means each period of six months ending on any
date referred to in the definition of the Calculation Dates;
"Centre" means (1) in relation to Singapore Dollar, Singapore, and (2)
in relation to US Dollar, New York City;
"Commitment Fee Payment Dates" means the last day of each Utilisation
Period;
"Commitment Termination Date" means 31st December, 2000;
"Commitments" means the Guarantee Commitments and the Term
Commitments;
"Completion" means the physical completion of the Plant (which shall
be evidenced by the grant of the temporary occupation permit for the
Plant pursuant to the Building Control Act, Chapter 29 of Singapore)
and the commencement of commercial production by the Plant (which
shall be the date on which the Plant achieves a production rate of an
aggregate of 2,000 wafers start per month);
"CSM" means Chartered Semiconductor Manufacturing Ltd, a company
incorporated in Singapore;
"Current Financial Report" means the then most recent financial report
delivered by the Borrower to the Agent pursuant to Clause 15;
"Debt Service Coverage Ratio" or "DSCR" means, in relation to any
Calculation Period, the ratio of A:B where:-
"A" = the Net Available Cash for that Calculation Period as set
out in the then Current Financial Report; and
"B" = the sum of all payments of the following:-
(1) principal, interest, commitment or other fees or
commissions; and
(2) grossing-up for indemnities for taxes withheld,
deducted or paid or for indemnities for increased
funding or similar costs,
which are or will be due and payable during the next
succeeding Calculation Period in respect of any indebtedness
of the Borrower in respect of borrowed money;
"Drawdown Schedule" means the schedule of Utilisation Periods,
Available EDB Amounts and Available Term Amounts (referred to in
paragraph 10 of Schedule 3 and to be substantially in the form set out
in Schedule 6) delivered or to be delivered by the Borrower to the
Agent prior to the date of the making of the first request for an
Advance;
"Debt Service Reserve Account" means the deposit account established
and maintained or to be established and maintained by the Borrower
with any of the banks named in the Phase 2 Credit Agreement acting out
of its office in Singapore as may be selected by the Borrower;
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"DSRA Account Charge" means the charge of the Debt Service Reserve
Account dated 28th September, 2000 from the Borrower in favour of ABN
AMRO Bank N.V., Singapore Branch, as security trustee in respect of
the Phase 2 Credit Agreement;
"EDB" means the Economic Development Board, a statutory body
established under the Economic Development Board Act, Chapter 85 of
Singapore;
"EDB Commitment" means the commitment of EDB to grant to the Borrower
a loan facility of S$450,000,000, upon the terms and subject to the
conditions of the EDB Loan Agreement;
"EDB Guarantee" means a guarantee from the Guarantor Banks in favour
of EDB, substantially in the form of Appendix A (and any reference to
the EDB Guarantee shall include the EDB Guarantee as from time to time
amended, modified or supplemented and any document which amends,
modifies or supplements the EDB Guarantee);
"EDB Loan" means the Drawings (as defined in the EDB Loan Agreement)
in the aggregate principal amount not exceeding S$450,000,000 made or
to be made by EDB to the Borrower pursuant to the EDB Loan Agreement
(or, as the case may be, the outstanding aggregate principal amount of
such Drawings (as defined in the EDB Loan Agreement));
"EDB Loan Agreement" means a loan agreement made or to be made between
(1) the Borrower and (2) EDB relating to a S$450,000,000 loan facility
granted by EDB to the Borrower (and any reference to the EDB Loan
Agreement includes the EDB Loan Agreement as from time to time
amended, modified or supplemented and any document which amends,
modifies or supplements the EDB Loan Agreement);
"EDBI" means EDB Investments Pte Ltd, a company incorporated in
Singapore;
"Equity" means, at any time, but without double counting, the sum of:-
(1) the Net Worth of the Borrower; and
(2) the aggregate principal amount of any loan advanced or lent by
the Shareholders (or any of them) and is still outstanding at
that time and which is subordinated to the Borrower's obligations
under the Financing Documents (either pursuant to the
Shareholders Undertaking or otherwise in a manner and on terms
satisfactory to the Majority Banks), in each case as set out in
the then Current Financial Report;
"Event of Default" means one of the events mentioned in Clause 17(A);
"Expiry Date" means the date specified in the EDB Guarantee as the
latest date on which any claim or demand may be made by EDB for
payment by any of the Guarantor Banks under the EDB Guarantee (which
shall not be later than 30th June, 2006);
"Final Maturity Date" means 30th June, 2002;
"Financing Documents" means this Agreement and the Security Documents
(and any reference to either Financing Document includes that
Financing Document as from time to time amended, modified or
supplemented and any document which amends, modifies or supplements
that Financing Document);
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"Guarantee Commitment" means, in relation to a Guarantor Bank and
subject as provided in this Agreement, the amount set opposite its
name in Part A of Schedule 1;
"Guarantee Fee Payment Dates" means (1) the date of the first Drawing
(as defined in the EDB Loan Agreement) under the EDB Loan Agreement as
certified by EDB to the Banks under the EDB Guarantee and (2) each 1st
March and 1st September thereafter (provided that no Guarantee Fee
Payment Date shall fall later than the Expiry Date);
"Guarantee Outstanding Amount" means, at any particular time, the sum
of (1) the aggregate amount of the maximum actual and/or contingent
liability of the Guarantor Banks under or in connection with the EDB
Guarantee at that time and (2) the amounts paid by the Guarantor Banks
under or in connection with the EDB Guarantee and not reimbursed by
the Borrower to the Guarantor Banks under this Agreement at that time;
"HP" means Hewlett Packard Company, a company incorporated in
California;
"HP Guarantee" means the guarantee dated 9th November, 1999 from HP in
favour of the Agent;
"Information Package" means the document containing certain
information concerning the Borrower and the Shareholders dated 15th
September, 1997 and the appendum thereto dated 23rd February, 1998;
"Interest Payment Date" means the last day of an Interest Period;
"Interest Period" means a period by reference to which interest is
calculated on an Advance or overdue sum;
"Joint Venture Agreement" means the joint venture agreement dated 13th
March, 1997 made between (1) CSM, (2) EDBI, and (3) Hewlett-Packard
Europe B.V. ("HPE"), as amended by an amendment agreement No. 1 dated
4th July, 1997 and an amendment agreement No.2 dated 1st October, 1999
each made between (a) CSM, (b) EDBI and (c) HPE and as further amended
by a deed of accession and ratification dated 9th November, 1999 made
between CSM, EDBI, HPE and ATE (and any reference to the Joint Venture
Agreement includes the Joint Venture Agreement as from time to time
amended, modified or supplemented and any document which amends,
modifies or supplements the Joint Venture Agreement) and all
references to "the date of the Joint Venture Agreement" shall mean
13th March, 1997;
"Majority Banks" means Banks whose Outstandings together exceed 66 2/3
per cent. of the total Outstandings (or, if there are no Outstandings,
Banks whose Commitments together exceed 66 2/3 per cent. of the total
Commitments);
"Margin" means 0.5625 per cent.;
"Net Available Cash" means, in relation to any Calculation Period, but
without double counting, an amount equal to the sum of:-
(1) all earnings (before payment of interest, taxation, depreciation
and amortisation) of the Borrower during such Calculation Period
from carrying out of its business (including interest and other
returns paid on, and profits made on the disposal of, any
investments) and all other cash amounts which should be credited
to the profit and loss account of the Borrower and which are
received by the Borrower during such Calculation Period; and
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(2) all cash in hand or at bank belonging to the Borrower which is
available to the Borrower on the last day of such Calculation
Period (excluding any double counting of cash generated from
earnings before payment of interest, taxation, depreciation and
amortisation during such Calculation Period),
all as set out in the then Current Financial Report;
"Net Worth" means, as at any particular time, the sum of:-
(1) the amount paid up or credited as paid up on the issued share
capital of the Borrower (other than any redeemable share
capital);
(2) the amount standing to the credit of the capital and revenue
reserves of the Borrower; and
(3) the aggregate outstanding amount of all indebtedness of the
Borrower to the Shareholders or any related corporation of the
Borrower which are subordinated to the Borrower's obligations
under the Financing Documents (either pursuant to the
Shareholders Undertaking or otherwise in a manner and on terms
satisfactory to the Majority Banks),
as set out in the then Current Financial Report, but less any amount
included in the above which is attributable to:-
(a) any debit balance on the profit and loss account as at the date
(the "balance sheet date") at which the then Current Financial
Report was prepared;
(b) goodwill or other intangible assets;
(c) amounts set aside for taxation;
(d) minority interests in subsidiaries;
(e) so far as not otherwise excluded as attributable to minority
interests, the amount by which the book value of any asset has
been written up after the date of this Agreement by way of
revaluation. However, no deduction shall be made to the extent
that a revaluation is based on, and the written-up value does not
exceed the value shown by, a written valuation prepared by a
suitable independent professional valuer; and
(f) any dividend or other distribution declared, recommended or made
by the Borrower out of profits earned up to and including the
balance sheet date but not provided for in it;
"New Lending Bank" means a bank or financial institution to which a
Lending Bank seeks to transfer all or part of its rights and/or
obligations in accordance with Clause 25(C);
"Outstandings" means, in relation to a Bank at any particular time,
the sum of:-
(1) (where that Bank is a Guarantor Bank) that Bank's share of the
Guarantee Outstanding Amount at that time; and
(2) (where that Bank is a Lending Bank) that Bank's share of the
Advances outstanding at that time (and, for the purposes of the
determination of the Majority
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Banks under this Agreement at any particular time, there shall be
taken into account the Singapore Dollar Equivalent (as determined
by the Agent) of the Advances);
"Phase 2 Available Tranche A Facility" shall have the meaning ascribed
to "Available Tranche A Facility" in the Phase 2 Credit Agreement;
"Phase 2 Available Tranche B Facility" shall have the meaning ascribed
to "Available Tranche B Facility" in the Phase 2 Credit Agreement;
"Phase 2 Credit Agreement" means the credit agreement dated 28th
September, 2000 made between (1) the Borrower, as borrower, (2) the
Lead Arrangers named therein, as lead arrangers, (3) the Arrangers
named therein, as arrangers, (4) the Co- Arranger named therein, as
co-arranger, (5) the Lead Manager named therein, as lead manager, (6)
the Manager named therein, as manager, (7) the Guarantor Banks named
therein, as guarantor banks, (8) the Lending Banks named therein, as
lending banks, (9) ABN AMRO Bank N.V., Singapore Branch, as agent, and
(10) ABN AMRO Bank N.V., Singapore Branch, as security trustee (and
any reference to the Phase 2 Credit Agreement includes the Phase 2
Credit Agreement as from time to time amended, modified or
supplemented and any document which amends, modifies or supplements
the Phase 2 Credit Agreement);
"Phase 2 EDB Guarantee" means a guarantee to be issued by the Phase 2
Guarantor Banks in favour of EDB under the Phase 2 Credit Agreement;
"Phase 2 Guarantor Banks" means the Guarantor Banks as named in the
Phase 2 Credit Agreement;
"Plant" means the wafer fabrication plant constructed or to be
constructed by the Borrower as part of the Project;
"Potential Event of Default" means any event or circumstance which, if
it continued after the giving of any notice, the expiry of any grace
period, and/or (as the case may be) the making of any determination by
the Majority Banks, provided for in Clause 17(A), would become an
Event of Default;
"Project" means the construction and subsequent operation of a wafer
fabrication plant by the Borrower to be located at Private ▇▇▇
▇▇▇▇▇▇(▇) ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇;
"Project Account" means the account (account number: 0-811428-027)
established and maintained or to be established and maintained by the
Borrower with the Project Account Bank;
"Project Account Bank" means any of the banks named in the Phase 2
Credit Agreement acting out of its office in Singapore as may be
selected by the Borrower;
"Project Account Charge" means the charge of the Project Account dated
28th September, 2000 from the Borrower in favour of the Security
Trustee;
"Reference Banks" means the respective principal Singapore offices of
ABN AMRO Bank N.V., Bayerische Landesbank Girozentrale, Citibank,
N.A., Overseas Union Bank Limited, The Bank of Tokyo-Mitsubishi, Ltd.
and The Sumitomo Bank, Limited;
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"Repayment Dates" means 31st December, 2000, 30th June, 2001, 31st
December, 2001 and the Final Maturity Date;
"Security Documents" means the ATI Guarantee, the HP Guarantee, the
Project Account Charge, the Shareholders Undertaking and the Trust
Deed and any and every other document from time to time executed to
guarantee, secure or otherwise assure the performance of the
obligations of the Borrower under or in connection with this Agreement
(and any reference to a Security Document shall be a reference to that
Security Document as from time to time amended, modified or
supplemented and any document which amends, modifies or supplements
that Security Document);
"Shareholder Obligors" means:-
(i) the Shareholders;
(ii) (for the period commencing on and from the date hereof and
for so long as HP has any obligations under the HP
Guarantee) HP; and
(iii) (for the period commencing on and from 1st April, 2001 and
for so long as ATI has any obligations under the ATI
Guarantee) ATI;
"Shareholders" means CSM, EDBI and ATE;
"Shareholders Undertaking" means an agreement between (1) the
Borrower, (2) the Shareholders and (3) the Agent, substantially in the
form of Appendix B (or in such other form as may be approved by the
Agent and the Banks);
"Singapore Business Day" means a day (other than Saturday or Sunday)
on which commercial banks are open for business in Singapore;
"Singapore Dollar(s)" and "S$" mean the lawful currency of Singapore;
"Singapore Dollar Equivalent" means, on any day in relation to an
amount denominated in a currency other than Singapore Dollars, the
amount in Singapore Dollars (as determined by the Agent) which the
Agent is able to purchase with such amount in that currency on such
day at the rate certified by the Agent to be the spot exchange rate of
the Agent for the purchase in Singapore of Singapore Dollars with that
currency at or about 11 a.m. on the second Singapore Business Day
before such day;
"Term Commitment" means, in relation to a Lending Bank and subject as
provided in this Agreement, the amount set opposite its name in Part B
of Schedule 1;
"Transfer Notice" means a notice substantially in the form set out in
Schedule 2;
"Trust Deed" means the trust deed dated 28th September, 2000 made
between (1) the Borrower and (2) the Security Trustee;
"Unavailable EDB Amount" means, at any particular time during an
Utilisation Period, the difference between (1) the lower of the EDB
Commitment at that time and S$225,695,203 and (2) the Available EDB
Amount for that Utilisation Period;
"Unavailable Term Amount" means, at any particular time during an
Utilisation Period, the difference between the Term Commitments at
that time and the Available Term Amount for that Utilisation Period;
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"US Dollar(s)" and "US$" mean the lawful currency of the United States
of America; and
"Utilisation Periods" means each of the three month periods (the first
such period commencing on 1st July, 1998) specified as a Utilisation
Period in column (1) of the Drawdown Schedule.
(B) Swap Rate: For the purposes of this Agreement, the "Swap means, in
relation to an Interest Period relating to an overdue sum denominated in
Singapore Dollars, the arithmetic mean (rounded up, if necessary, to the next
1/16 per cent.) of the respective Swap Rates (as quoted to the Agent) of each
Reference Bank applicable to that Interest Period. The Swap Rate of a Reference
Bank shall be the rate per annum (expressed as a percentage) determined by that
Reference Bank, and quoted by that Reference Bank to the Agent, to be equal to Y
(which shall be calculated to the nearest four decimal places) calculated in
accordance with the following formula:-
(R x 365) + (F x 36500) + (F x R x 365)
--- - ----- - ---
Y = ▇▇▇ ▇ ▇ ▇ ▇▇▇
where:-
F = the premium (being a positive number) or the discount (being
a negative number), as the case may be, which would have
been paid or received (as the case may be) by that Reference
Bank in offering to sell US Dollars forward in exchange for
Singapore Dollars on the last day of that Interest Period
relating to such overdue sum in the Singapore inter-bank
market at or about 11 a.m. on the second Business Day before
the first day of that Interest Period relating to such
overdue sum;
S = the exchange rate at which that Reference Bank sells US
Dollars spot in exchange for Singapore Dollars in the
Singapore foreign exchange market, as quoted by that
Reference Bank at or about 11 a.m. on the second Business
Day before the first day of that Interest Period relating to
such overdue sum;
R = the rate at which that Reference Bank is offering US Dollar
deposits for that Interest Period relating to such overdue
sum in an amount comparable to the US Dollar equivalent of
such overdue sum (such US Dollar equivalent to be determined
by that Reference Bank at such rate or rates as that
Reference Bank determines to be most appropriate) to prime
banks in the Singapore inter-bank market at or about 11 a.m.
on the second Business Day before the first day of that
Interest Period relating to such overdue sum; and
N = the actual number of days in that Interest Period relating
to such overdue sum.
(C) Construction of Certain References: Except to the extent that the
context requires otherwise, any reference in this Agreement to:-
an "Act of Parliament" or any Section of, Schedule to or other
provision of an Act of Parliament shall be construed, at any
particular time, as including a reference to any modification,
extension or re-enactment thereof then in force and all instruments,
orders and regulations then in force and made under or deriving
validity from the relevant Act or provision;
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an "agency" of a state includes any agency, authority, central bank,
department, government, legislature, minister, ministry, official or
public or statutory person (whether autonomous or not) of, or of the
government of, that state;
the "assets" of any person means all or any part of its business,
undertaking, property, assets, revenues (including any right to
receive revenues) and uncalled capital;
"borrowed money" includes any indebtedness for or in respect of money
borrowed or raised (whether or not for cash), by whatever means
(including acceptances, with recourse discounting and factoring,
finance leases, hire-purchase, sale-and-leaseback, sale-and-repurchase
and any form of "off-balance sheet" financing but shall, for the
avoidance of doubt, exclude operating leases and credit sales on
normal commercial terms in the ordinary course of trading);
"consent" also includes an approval, authorisation, exemption, filing,
licence, order, permission, recording or registration (and references
to obtaining consents shall be construed accordingly);
a "directive" includes any present or future directive, regulation,
request, requirement, rule or credit restraint programme of any agency
of any state or of any self-regulating organisation (but, if not
having the force of law, only if compliance with the directive is in
accordance with the general practice of persons to whom the directive
is intended to apply);
"disposal" includes any sale, assignment, exchange, transfer,
concession, loan, lease, surrender of lease, licence, reservation,
waiver, compromise, release of security, dealing with or the granting
of any option or right or interest whatsoever or any agreement for any
of the same and "dispose" means to make a disposal, and "acquisition"
and "acquire" shall be construed mutatis mutandis;
a "guarantee" also includes an indemnity, and any other obligation
(whatever called) of any person to pay, purchase, provide funds
(whether by the advance of money, the purchase of or subscription for
shares or other securities, the purchase of assets or services, or
otherwise) for the payment of, indemnify against the consequences of
default in the payment of, or otherwise be responsible for, any
indebtedness of any other person (and "guaranteed" and "guarantor"
shall be construed accordingly);
"identified form" in relation to any document means a form of such
document initialled by the Borrower and the Agent for the purposes of
identification on the date of this Agreement;
"indebtedness" includes any obligation (whether present or future,
actual or contingent, secured or unsecured, as principal, surety or
otherwise) for the payment or repayment of money;
a "law" includes common or customary law and any constitution, decree,
judgment, legislation, order, ordinance, regulation, statute, treaty
or other legislative measure, in each case of any jurisdiction
whatsoever (and "lawful" and "unlawful" shall be construed
accordingly);
something having a "material adverse effect" on:-
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(1) the Borrower is to it having a material adverse effect (a) on its
financial condition, or (b) on its ability to perform and comply
with its obligations under any Financing Document; or
(2) any of the Shareholders is to it having a material adverse effect
(a) on its financial condition or (b) on its ability to perform
and comply with its obligations under the Shareholders
Undertaking or any other Financing Document;
a "month" means a period beginning in one calendar month and ending in
the next calendar month on the day numerically corresponding to the
day of the calendar month on which it commences or, where there is no
date in the next calendar month numerically corresponding as
aforesaid, the last day of such calendar month, and "months" and
"monthly" shall be construed accordingly;
any "obligation" of any person under this Agreement or any other
agreement or document shall be construed as a reference to an
obligation expressed to be assumed by or imposed on it under this
Agreement or, as the case may be, that other agreement or document
(and "due", "owing", "payable" and "receivable" shall be similarly
construed);
a "person" includes any individual, company, corporation, firm,
partnership, joint venture, association, organisation, trust, state or
agency of a state (in each case, whether or not having separate legal
personality);
"related corporations" has the meaning ascribed to it in Section 6 of
the Companies Act, Chapter 50 of Singapore;
"security" includes any mortgage, pledge, lien, hypothecation,
security interest or other charge or encumbrance and any other
agreement or arrangement having substantially the same economic effect
(including any "hold-back" or "flawed asset" arrangement) (and
"secured" shall be construed accordingly); "subsidiary" has the
meaning ascribed to it in Section 5 of the Companies Act, Chapter 50
of Singapore;
"tax(es)" includes any present or future tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature and whatever
called, by whomsoever, on whomsoever and wherever imposed, levied,
collected, withheld or assessed;
"tax on overall net income" of a person shall be construed as a
reference to tax (other than tax deducted or withheld from any
payment) imposed on that person by the jurisdiction in which its
principal office is located on (1) the net income, profits or gains of
that person worldwide or (2) such of its net income, profits or gains
as arise in or relate to that jurisdiction;
a "time of the day" is to Singapore time unless otherwise stated; and
the "winding-up" of a person also includes the amalgamation,
reconstruction, reorganisation, administration, judicial management,
dissolution, liquidation, merger or consolidation of that person, and
any equivalent or analogous procedure under the law of any
jurisdiction in which that person is incorporated, domiciled or
resident or carries on business or has assets.
(C) Miscellaneous: The headings in this Agreement are inserted for
convenience only and shall be ignored in construing this Agreement. Unless the
context otherwise requires, words (including words defined herein) denoting the
singular number only shall include the plural and vice versa. The words
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"written" and "in writing" include any means of visible reproduction. References
to "Appendices", "Clauses" and "Schedules" are to be construed as references to
the appendices to, clauses of, and schedules to, this Agreement. Any reference
to a sub-Clause or a paragraph is to a sub-Clause or paragraph of the Clause in
which such reference appears.
2. THE FACILITIES
(A) Guarantee Facility: (1) The Guarantor ▇▇▇▇▇ ▇▇▇▇▇ to the Borrower a
S$236,800,000 guarantee facility upon the terms and subject to the conditions of
this Agreement.
(2) The Guarantor Banks will participate in the EDB Guarantee to be issued
under that facility in the manner specified in Clause 4.
(B) Term Loan Facility: (1) The Lending ▇▇▇▇▇ ▇▇▇▇▇ to the Borrower a
US$143,200,000 term loan facility upon the terms and subject to the conditions
of this Agreement.
(2) The Lending Banks will participate in the Advances to be made under
that facility in the manner specified in Clause 6.
(C) Purpose: The Borrower shall use the entire proceeds of each Advance
and the EDB Loan to finance the construction and operation of the Plant and/or
the purchase of equipment for wafer fabrication of semiconductor devices in
relation to the Plant, but none of the Arrangers, the Agent, the Security
Trustee nor any Bank need check that it does so.
3. CONDITIONS PRECEDENT
The Borrower may not make its request for the issue of the EDB
Guarantee and may not make its first request for an Advance until the Agent has
confirmed to it and the Banks that the Agent has received documents appearing to
the Agent to comply with the requirements of Schedule 3 and to be satisfactory,
which confirmation shall be given as soon as practicable following receipt of
all such documents.
4. ISSUE OF EDB GUARANTEE
(A) Issue Conditions: Subject to the provisions of this Agreement, the EDB
Guarantee will be issued by the Guarantor Banks at the request of the Borrower
if the following additional conditions are fulfilled:-
(1) not later than 10 a.m. on the tenth Singapore Business Day before
the proposed date of the issue of the EDB Guarantee (or, as the
case may be, such later time as may be acceptable to the Agent
and the Guarantor Banks for the purpose of the request), the
Agent has received from the Borrower:-
(a) a notice substantially in the form set out in Schedule 4
specifying:-
(i) the proposed date of the issue of the EDB
Guarantee, which must be a Singapore Business Day
falling on or before 30th September, 2000;
(ii) the maximum amount of the Guarantee Outstanding
Amount, which must be equal to or less than
the total amount of the Guarantee Commitments of
all the Guarantor Banks; and
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(iii) the proposed date for the expiry of the EDB
Guarantee, which must not be later than
30th June, 2006; and
(b) a certified copy of the EDB Loan Agreement (which shall be
substantially in the identified form);
(2) all representations and warranties in Clause 14 (except to any
extent waived in accordance with Clause 26(B)) have been complied
with and would be correct in all material respects if repeated on
the proposed date of the issue of the EDB Guarantee by reference
to the circumstances then existing;
(3) no Event of Default or Potential Event of Default has occurred on
or before the proposed date of the issue of the EDB Guarantee or
will occur as a result of the issue of the EDB Guarantee, other
than any waived in accordance with Clause 26(B); and
(4) not later than 10 a.m. on the proposed date of the issue of the
EDB Guarantee, the Agent has received and found satisfactory such
additional information, legal opinions and/or other documents
relevant in the context of or relating to the Financing Documents
as it may reasonably request not later than 10 a.m. on the second
Business Day before the proposed date of the issue of the EDB
Guarantee as a result of circumstances which have arisen or come
to its attention since the date of this Agreement.
(B) Notification of Issue Request: The Agent shall promptly notify each
Guarantor Bank of the proposed date of the issue of the EDB Guarantee.
(C) Issue of EDB Guarantee: The EDB Guarantee shall be substantially in
the form of Appendix A with such amendments as shall have been agreed between
the Borrower, the Guarantor Banks and EDB and shall be completed with the
particulars specified in the request of the Borrower referred to in sub-Clause
(A). Subject to this sub-Clause (C), on or prior to the proposed date of the
issue of the EDB Guarantee, each Guarantor Bank shall execute the EDB Guarantee
(or a counterpart of the EDB Guarantee) and shall deliver the executed document
to the Agent for onward transmission to EDB.
(D) Obligations Several: No Guarantor Bank shall be liable for the
failure of any other Guarantor Bank to fulfil its obligations under, or in
respect of, the EDB Guarantee and the Borrower shall not be released from its
obligations towards the other Guarantor Banks in case of such failure.
5. INDEMNITY TO GUARANTOR BANKS
(A) Indemnity: In consideration of the Guarantor Banks agreeing to issue
the EDB Guarantee at the request of the Borrower or otherwise acting under or in
connection with this Agreement:-
(1) the Borrower hereby unconditionally and irrevocably undertakes to
and agrees with each of the Guarantor Banks that it will at all
times fully indemnify and save harmless each of the Guarantor
Banks from and against any and all actions, proceedings,
liabilities, claims, demands, losses, damages, charges, costs and
expenses of whatever nature which the Guarantor Banks or any of
them may at any time and from time to time directly or indirectly
sustain, incur or suffer (a) by reason of any claim or demand
made under the EDB Guarantee or its payment of any claim or
liability under or in connection with the EDB Guarantee or
otherwise in connection with or arising out of the EDB Guarantee,
(b) by reason of this Agreement, (c) as a result of any default
by the Borrower in the due and punctual payment of any sum
payable by it under or in connection with this Agreement or
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the EDB Loan Agreement and/or (d) as a result of any default by
the Borrower in the due and punctual performance of any of its
other obligations under this Agreement or the EDB Loan Agreement
(excluding, for the avoidance of doubt, any actions, proceedings,
liabilities, claims, demands, losses, damages, charges, costs and
expenses incurred by any of the Guarantor Banks by reason of its
negligence or wilful misconduct or those of its officers,
employees or agents);
(2) without prejudice to the generality of the provisions of
paragraph (1), the Borrower covenants and undertakes to pay to
each of the Guarantor Banks by way of indemnity at any time and
from time to time immediately upon demand by the Agent or that
Guarantor Bank all moneys and liabilities whatsoever which may
from time to time be claimed or demanded from that Guarantor Bank
or which that Guarantor Bank may pay or is liable to pay or
sustain, incur or suffer under or by reason of or in connection
with the EDB Guarantee (excluding, for the avoidance of doubt,
any moneys or liabilities sustained, incurred or suffered by any
of the Guarantor Banks by reason of its negligence or wilful
misconduct or those of its officers, employees or agents). The
Borrower shall make payment to the Agent or that Guarantor Bank
following such claim or demand notwithstanding that at the time
of the claim or demand that Guarantor Bank is not liable under or
required by law to make any payment under or in connection with
the EDB Guarantee and notwithstanding any other fact or
circumstance which may constitute a defence or discharge to that
Guarantor Bank in respect of the claim or demand made against it
under or in connection with the EDB Guarantee; and
(3) the Borrower further agrees to pay to each of the Guarantor
Banks on demand interest on all sums demanded by the Agent or
that Guarantor Bank from it pursuant to the provisions of this
sub-Clause (A) from and including the relevant due date of demand
for payment of the same until the date of actual payment (both
before and after judgment), part of a day being treated as a
complete day. Interest payable pursuant to the provisions of this
paragraph (3) shall be calculated and paid at the rate per annum
(as determined by the Agent) equal to the sum of 0.625 per cent.
and the cost to that Guarantor Bank of funding such sums for such
period or periods as that Guarantor Bank may determine by
whatever means it reasonably determines to be most appropriate
(including the cost to that Guarantor Bank occasioned by or
attributable to complying with reserves, liquidity, deposit or
other requirements for the time being imposed on it by the
relevant authority or authorities). Such interest shall accrue
from day to day and shall be calculated on the basis of a year of
365 days and the actual number of days elapsed. In this paragraph
(3), the expression "due date of demand for payment" means the
date on which that Guarantor Bank has made a payment under or in
connection with the EDB Guarantee in respect of which that
Guarantor Bank's right to indemnity arises under this sub-Clause
(A) (whether or not a demand for indemnity under this sub-Clause
(A) was actually made by that Guarantor Bank on that day).
(B) Further Authority: The Guarantor Banks may at all times immediately
pay, discharge and satisfy upon demand by EDB any amounts claimed by EDB under
or in connection with the EDB Guarantee without any reference or further
authority from the Borrower, without further investigation or inquiry and
without inquiring and without requiring proof or the agreement of the Borrower
that the amounts so demanded are due and notwithstanding that the Borrower
disputes the validity of any such demands or payments (whether or not such
dispute is disclosed to any of the Guarantor Banks). The Guarantor Banks need
not concern themselves with the propriety of any claim or demand made or
purported to be made under or in connection with the EDB Guarantee and it shall
not be a defence to any demand made of the Borrower, nor shall the liability of
the Borrower under this Clause be affected or impaired by the fact, that any of
the
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Guarantor Banks was or might have been justified in refusing payment in whole or
in part of the amounts so demanded.
(C) Good Faith: The Borrower further agrees that any action or step taken
by any of the Guarantor Banks in good faith under or in connection with this
Agreement shall be binding on it and shall not place that Guarantor Bank under
any liability to it.
(D) Obligations Continuing: The obligations of the Borrower under this
Clause are and will remain in full force and effect by way of continuing
security until no sum remains payable by the Borrower under this Agreement or by
any of the Guarantor Banks under the EDB Guarantee and the Guarantee Commitments
cease to remain in effect. Furthermore, those obligations are additional to, and
not instead of, any other agreement, security, indemnity, guarantee, right,
remedy or lien at any time existing in favour of any person, whether from the
Borrower or otherwise.
(E) No Discharge: The Borrower shall not be discharged, nor shall its
liability under this Clause or any other provision of this Agreement be
affected, by any matter or thing whatsoever (including, without limitation, (1)
any time, indulgence, waiver, forbearance, concession or consent at any time
given to any of the Guarantor Banks, the Borrower, any Shareholder Obligor or
any other person, (2) any amendment or supplement to any provision of the EDB
Guarantee, this Agreement or any other agreement, security, indemnity,
guarantee, right, remedy or lien, (3) the making or absence of any demand on the
Borrower, any Shareholder Obligor or any other person for payment, (4) the
enforcement or absence of enforcement of the EDB Guarantee, this Agreement or
any other agreement, security, indemnity, guarantee, right, remedy or lien, (5)
the taking, existence or release of any agreement, security, indemnity,
guarantee, right, remedy or lien, (6) the insolvency, winding-up, amalgamation,
reconstruction or reorganisation of the Borrower, any Shareholder Obligor or any
other person (or the commencement of any of the foregoing) and (7) the
illegality, invalidity or unenforceability of, or any defect in, any provision
of the EDB Guarantee, this Agreement or any other agreement, security,
indemnity, guarantee, right, remedy or lien or of any obligations of the
Borrower under this Agreement or any other agreement, security, indemnity,
guarantee, right, remedy or lien).
(F) Non-Amendment of EDB Guarantee: Each of the Guarantor Banks agree
with the Borrower that (without prejudice to the obligations of the Borrower
under or in connection with this Agreement), they will not amend or agree to any
amendment of the EDB Guarantee without the prior consent in writing of the
Borrower. Notwithstanding the foregoing provisions of this sub-Clause (F),
nothing in this sub-Clause (F) shall affect or prejudice the obligations of the
Borrower under or in connection with this Agreement or release the Borrower from
any of its obligations under or in connection with this Agreement
(notwithstanding any amendment made to the EDB Guarantee without the prior
consent in writing of the Borrower).
6. ADVANCES
(A) Advances: Subject to the provisions of this Agreement, Advances will
be made by the Lending Banks to the Borrower at its request if the following
additional conditions are fulfilled:-
(1) not later than 10 a.m. on the fifth Singapore
Business Day before the proposed date of the relevant Advance
(or, as the case may be, such later time as may be acceptable to
the Agent and the Lending Banks for the purpose of the relevant
request), the Agent has received from the Borrower a notice
substantially in the form set out in Schedule 5 specifying:-
(a) the proposed date of that Advance, which must be a Business
Day falling on or before the Commitment Termination Date;
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(b) the amount of that Advance, which must be equal to or
less than the Available Term Amount of the Utilisation
Period during which the proposed date of that Advance falls
and, if less than that Available Term Amount, must be
US$5,000,000 or a higher integral multiple of US$1,000,000;
and
(c) details of the bank (which must be in New York City) and
account to which the Borrower wishes the proceeds of that
Advance to be made available by the Agent;
(2) none of the events mentioned in Clause 12(C) occurs in relation
to the first Interest Period for that Advance;
(3) all representations and warranties in Clause 14 (except to any
extent waived in accordance with Clause 26(B)) have been complied
with and would be correct in all material respects if repeated on
the proposed date of that Advance by reference to the
circumstances then existing;
(4) no Event of Default or Potential Event of Default has occurred
on or before the proposed date of that Advance, or will occur as
a result of making that Advance, other than any waived in
accordance with Clause 26(B); and
(5) not later than 10 a.m. on the proposed date of that Advance, the
Agent has received and found satisfactory such additional
information, legal opinions and/or other documents relevant in
the context of or relating to the Financing Documents as it may
reasonably request not later than 10 a.m. on the second Business
Day before the proposed date of that Advance as a result of
circumstances which have arisen or come to its attention since
the date of this Agreement.
(B) Notification of Drawdown Requests: The Agent shall promptly
(and in any event by 5 p.m. on the fourth Business Day before the proposed date
of each Advance) notify each Lending Bank of the proposed date of, and the
amount of that Lending Bank's share of, each Advance.
(C) Participation in Advances: Each Lending Bank will participate
in each Advance to be made to the Borrower under this Agreement in the
proportion borne by its Available Commitment to the Available Facility when the
Agent receives the notice requesting that Advance (unless, between then and the
time for making that Advance, its Available Commitment is reduced to zero, in
which case the amount of that Advance will be reduced accordingly).
7. REPAYMENT AND PREPAYMENT
(A) Repayment: Subject as otherwise provided in this Agreement,
the Advances outstanding at the end of the Commitment Termination Date shall be
repaid by the Borrower in four equal semi-annual instalments, one instalment
falling due on each Repayment Date. For the avoidance of doubt, the Borrower
shall repay any outstanding Advances in full on the Final Maturity Date.
(B) Prepayment of All Lending Banks: The Borrower may prepay any Advance,
or any part of it which is US$5,000,000 or a higher integral multiple of
US$1,000,000 thereof without premium or penalty on any Interest Payment Date
relating to that Advance after the Commitment Termination Date if it gives to
the Agent not less than ten days' notice of the Advance to be prepaid and the
date and amount of the prepayment. Any such prepayment must be accompanied by
accrued interest on the amount prepaid and by any other sum then due under this
Agreement.
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(C) Of Certain Lending Banks: If (1) the Borrower becomes obliged to pay
any tax or other amount for the account of any Lending Bank under Clause 11(B)
or 12(B) or the Agent gives a notification on behalf of any Lending Bank under
Clause 12(D), and (2) the Borrower gives to that Lending Bank not less than ten
days' notice of the date of prepayment, the Borrower may prepay all (but not
part only) of that Lending Bank's share of the Advances without premium or
penalty at any time. Upon the Agent receiving that notice, that Lending Bank's
Commitment (if any) shall be cancelled. Any such prepayment must be accompanied
by accrued interest on that Lending Bank's share of the Advances and by any
other sum then due to that Lending Bank under Clause 19(A) or any other
provision of this Agreement.
(D) Effect of Prepayments: Any prepayment under sub-Clause (B) will be
applied in or towards repaying the remaining repayment instalments of the
Advances under sub-Clause (A) in inverse order of maturity.
(E) Miscellaneous: Any notice of prepayment given by the Borrower
under this Agreement will oblige the Borrower to prepay in accordance with that
notice. The Borrower may not repay or prepay all or any part of the Advances
except as expressly provided in this Agreement and may not re-borrow any amount
repaid or prepaid.
8. CANCELLATION
(A) Of All Lending Banks: The Borrower may cancel the Available Facility,
or any part of it which is US$5,000,000 or a higher integral multiple of
US$1,000,000, at any time before the Commitment Termination Date by giving to
the Agent not less than ten days' notice of the date and amount of the
cancellation. Any such partial cancellation shall reduce each Lending Bank's
Term Commitment rateably. On the date on which the cancellation takes effect,
the Borrower shall pay to the Agent for the account of the Lending Banks a
cancellation fee of 0.0625 per cent. of the amount of that cancellation.
(B) Of Certain Lending Banks: If the Borrower becomes obliged to pay
any tax or other amount for the account of any Lending Bank under Clause 11(B)
or 12(B) or the Agent gives a notification on behalf of any Lending Bank under
Clause 12(D), the Borrower may cancel all (but not part only) of that Lending
Bank's Term Commitment without premium or penalty at any time before the
Commitment Termination Date by giving to that Lending Bank not less than ten
days' notice of the date of the cancellation.
(C) Cancellation Rights Limited: The Borrower may not cancel all or any
part of the Term Commitments except as expressly provided in this Agreement and
any amount cancelled shall not be reinstated.
9. INTEREST
(A) Interest Periods: Interest shall be calculated on each Advance by
reference to successive Interest Periods. Each Interest Period shall apply to
all Advances made or outstanding on the first day of that Interest Period and
shall be of six months' duration, except as follows:-
(1) the first Interest Period relating to any Advance shall
begin on the proposed date of that Advance and shall end (in the
case of the first Advance) on the date falling six months
thereafter and (in the case of any subsequent Advance) on the
same date as the then current Interest Period relating to the
first Advance; and
(2) any Interest Period which commences before 30th June in each
year shall instead end on 30th June of that year and any Interest
Period which commences before 31st December (but after 30th June)
in each year shall instead end on 31st December of that year.
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(B) Normal Interest Rate: The rate of interest applicable to an Advance
for all or any part of a particular Interest Period relating to that Advance
shall be the rate per annum (as determined by the Agent) equal to the sum of the
Margin and the arithmetic mean (rounded up, if necessary, to the next 1/16 per
cent.) of the respective rates (as quoted to the Agent) at which each Reference
Bank is offering deposits in US Dollars for that Interest Period in an amount
comparable to the Advance to which that Interest Period relates to prime banks
in the Singapore inter-bank market at or about 11 a.m. on the second Business
Day before the first day of that Interest Period. If any Reference Bank does not
supply any quotation required from it for the purpose of this Agreement, the
relevant arithmetic mean (rounded up, if necessary, to the next 1/16 per cent.)
shall be determined on the basis of the quotations supplied by the remaining
Reference Banks.
(C) Notification of Interest Periods and Rates: The Agent shall promptly
notify the Borrower and the Lending Banks of each rate of interest determined in
accordance with sub-Clause (B).
(D) Payment of Interest: Subject as otherwise provided in this Agreement,
on the last day of each Interest Period relating to an Advance, the Borrower
shall pay the unpaid interest accrued during that Interest Period on that
Advance at the rate applicable to that Interest Period.
10. FEES
(A) Guarantee Fee: The Borrower shall pay to the Guarantor Banks:-
(1) on each Guarantee Fee Payment Date a guarantee fee calculated
at the rate of 0.625 per cent. per annum on the lower of (a) the
aggregate amounts of principal, interest and default interest, if
any, outstanding under the EDB Loan Agreement on that Guarantee
Fee Payment Date and (b) the Maximum Aggregate Liability (as
defined in the EDB Guarantee) on that Guarantee Fee Payment Date
and for the period commencing on that Guarantee Fee Payment Date
and ending on the next Guarantee Fee Payment Date or, if earlier,
the Expiry Date (such guarantee fee to be calculated on the basis
of a 365 day year); and
(2) on each date (other than a Guarantee Fee Payment Date) on
which the principal amount of the EDB Loan is increased (each an
"Increase Date"), a guarantee fee calculated at the rate of 0.625
per cent. per annum on the amount by which the EDB Loan has
increased on that Increase Date (but not including that part of
the EDB Loan exceeding S$225,695,203) and for the period
commencing on that Increase Date and ending on the next Guarantee
Fee Payment Date or, if earlier, the Expiry Date (such guarantee
fee to be calculated on the basis of a 365 day year).
The guarantee fee shall be payable in Singapore Dollars and shall be
non-refundable notwithstanding any reduction of the EDB Loan or Guarantee
Outstanding Amount after the relevant Guarantee Fee Payment Date or, as the case
may be, Increase Date or any reduction or cancellation of the Guarantee
Commitments after the relevant Guarantee Fee Payment Date or, as the case may
be, Increase Date.
(B) Commitment Fee: (1) (a) The Borrower shall pay to the Guarantor Banks
on each Commitment Fee Payment Date a commitment fee (which shall be payable in
Singapore Dollars) calculated as follows:-
(i) in relation to the Available EDB Amount, at the rate of 0.25 per
cent. per annum on the Available EDB Amount from day to day
during the Utilisation Period ending on that Commitment Fee
Payment Date; and
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(ii) in relation to the Unavailable EDB Amount, at the rate of 0.15
per cent. per annum on the Unavailable EDB Amount from day to day
during the Utilisation Period ending on that Commitment Fee
Payment Date.
(b) If, in relation to any Utilisation Period, the Available
EDB Amount for such Utilisation Period exceeds the aggregate
principal amount of the advances made by EDB to the Borrower
under the EDB Loan Agreement during such Utilisation Period, the
Available EDB Amount for the next succeeding Utilisation Period
will be increased by an amount equal to such excess.
(c) The Borrower may, by giving not less than 30 days' notice to
the Agent, increase the Available EDB Amount during any
Utilisation Period and on the date specified in the notice, the
Available EDB Amount for such Utilisation Period shall be
increased by the amount specified in the notice. For the
avoidance of doubt, the commitment fee payable on the Commitment
Fee Payment Date in relation to that Utilisation Period shall be
0.125 per cent. per annum on the increased Available EDB Amount
from day to day beginning with the date specified in the notice
for such Utilisation Period and ending on that Commitment Fee
Payment Date.
(d) If, in relation to any Utilisation Period, the Borrower has
requested for an increase of the Available EDB Amount in accordance with
sub-paragraph (c) above, the Available EDB Amount for the next succeeding
Utilisation Period shall be reduced by an amount equal to such increase. For the
avoidance of doubt, if the Available EDB Amount for any Utilisation Period
exceeds the aggregate principal amount of the advances made by EDB to the
Borrower under the EDB Loan Agreement during that Utilisation Period, the
Available EDB Amount for the next succeeding Utilisation Period will be
increased by an amount equal to such excess in accordance with the provisions of
sub-paragraph (b) above.
(2) (a) The Borrower shall pay to the Lending Banks on each Commitment
Fee Payment Date a commitment fee (which shall be payable in US Dollars)
calculated as follows:-
(i) in relation to the Available Term Amount, at the
rate of 0.25 per cent. per annum on the Available
Term Amount from day to day during the Utilisation
Period ending on that Commitment Fee Payment Date;
and
(ii) in relation to the Unavailable Term Amount, at the
rate of 0.15 per cent. per annum on the Unavailable
Term Amount from day to day during the Utilisation
Period ending on that Commitment Fee Payment Date.
(b) If, in relation to any Utilisation Period, the Available
Term Amount for such Utilisation Period exceeds the Advances made by the Lending
Banks to the Borrower during such Utilisation Period, the Available Term Amount
for the next succeeding Utilisation Period will be increased by an amount equal
to such excess.
(c) The Borrower may, by giving not less than 30 days' notice
to the Agent, increase the Available Term Amount during any Utilisation Period
and on the date specified in the notice, the Available Term Amount for such
Utilisation Period shall be increased by the amount specified in the notice. For
the avoidance of doubt, the commitment fee payable on the Commitment Fee Payment
Date in relation to that Utilisation Period shall be 0.125 per cent. per annum
on the increased Available Term Amount from day to day beginning with the date
specified in the notice for such Utilisation Period and ending on that
Commitment Fee Payment Date.
(d) If, in relation to any Utilisation Period, the Borrower
has requested for an increase of the Available Term Amount in accordance with
sub-paragraph (c) above, the Available Term Amount for
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the next succeeding Utilisation Period shall be reduced by an amount equal to
such increase. For the avoidance of doubt, if the Available Term Amount for any
Utilisation Period exeeds the aggregate principal amount of the Advances made by
the Lending Banks to the Borrower under this Agreement during that Utilisation
Period, the Available Term Amount for the next succeeding Utilisation Period
will be increased by an amount equal to such excess in accordance with the
provisions of sub-paragraph (b) above.
(C) Participation Fee: (1) The Borrower shall pay to the Agent for the
account of the Banks a participation fee in the amount, at the time and in the
manner stated in a letter (the "Fee Letter") of today's date from the Agent to
the Borrower and countersigned by the Borrower.
(2) On receipt of the participation fee, the Agent shall pay to each
Bank its share of the participation fee in the amount already agreed between the
Agent and that Bank.
(D) Arrangement Fee: The Borrower shall pay to the Agent for the account
of the Arranger an arrangement fee in the amount, at the time and in the manner
stated in the Fee Letter.
(E) Agency Fee: The Borrower shall pay to the Agent for its own account an
agency fee in the amounts, at the times and in the manner stated in the Fee
Letter.
11. TAXES
(A) Payments to be Free and Clear: All sums payable by the Borrower
under this Agreement shall be paid (1) free of any restriction or condition, (2)
free and clear of and (except to the extent required by law) without any
deduction or withholding for or on account of any tax and (3) without deduction
or withholding (except to the extent required by law) on account of any other
amount, whether by way of set-off or otherwise.
(B) Grossing-up of Payments: (1) If the Borrower or any other person
(whether or not a party to, or on behalf of a party to, this Agreement) must at
any time deduct or withhold any tax or other amount from any sum paid or payable
by, or received or receivable from, the Borrower under this Agreement, the
Borrower shall pay such additional amount as is necessary to ensure that the
Agent or, as the case may be, the Bank to which that sum is due receives on the
due date and retains (free from any liability other than tax on its own overall
net income) a net sum equal to what it would have received and so retained had
no such deduction or withholding been required or made.
(2) If the Borrower or any other person (whether or not a party to, or
on behalf of a party to, this Agreement) must at any time pay any tax or other
amount on, or calculated by reference to, any sum received or receivable by the
Agent or, as the case may be, any Bank under this Agreement (except for a
payment by the Agent or a Bank of tax on its own overall net income), the
Borrower shall pay or procure the payment of that tax or other amount before any
interest or penalty becomes payable or, if that tax or other amount is payable
and paid by the Agent or any Bank, shall reimburse it on demand for the amount
paid by it.
(3) Within 30 days after paying any sum from which it is required by
law to make any deduction or withholding, and within 30 days after the due date
of payment of any tax or other amount which it is required by paragraph (2) to
pay, the Borrower shall deliver to the Agent evidence satisfactory to the Agent
or, as the case may be, the relevant Bank of that deduction, withholding or
payment and (where remittance is required) of the remittance thereof to the
relevant taxing or other authority.
(4) As soon as the Borrower is aware that any such deduction,
withholding or payment is required (or of any change in any such requirement),
it shall notify the Agent.
(C) Goods and Services Tax: The Borrower shall also pay to the
Agent, the Security Trustee and each Bank on demand, in addition to any amount
payable by the Borrower to the Agent or, as the case
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may be, the relevant Bank under this Agreement, any goods and services, value
added or other similar tax payable in respect of that amount (and references in
this Agreement to that amount shall be deemed to include any such taxes payable
in addition to it).
(D) Refund of Tax Credits: If:-
(1) the Borrower makes a payment under sub-Clause (B)(1) or (2) (a
"Tax Payment") in respect of a payment to a Bank under this
Agreement; and
(2) that Bank determines in its absolute discretion that it has
obtained a refund of tax or obtained and used a credit against
tax on its overall net income (a "Tax Credit") which that Bank in
its absolute discretion is able to identify as attributable to
that Tax Payment,
then, if in its absolute discretion it can do so without any adverse
consequences for that Bank, that Bank shall reimburse the Borrower such amount
as that Bank in its absolute discretion determines to be such proportion of that
Tax Credit as will leave that Bank (after that reimbursement) in no better or
worse position in respect of its worldwide tax liabilities than it would have
been in if no Tax Payment had been required. A Bank shall have an absolute
discretion as to whether to claim any Tax Credit (and, if it does claim, the
extent, order and manner in which it does so) and whether any amount is due from
it under this sub-Clause (D) (and, if so, what amount and when). No Bank shall
be obliged to disclose any information regarding its tax affairs and
computations.
12. CHANGES IN CIRCUMSTANCES
(A) Illegality: (1) If at any time any Guarantor Bank reasonably
determines that it is or will become unlawful or contrary to any directive of
any agency of any state for it to allow all or part of its Guarantee Commitment
to remain outstanding and/or to carry out all or any of its other obligations
under this Agreement or all or any of its obligations under the EDB Guarantee,
upon that Guarantor Bank notifying the Borrower (through the Agent):-
(a) that Guarantor Bank's Guarantee Commitment shall be cancelled
(but without prejudice to the obligations of that Guarantor Bank
under the EDB Guarantee); or
(b) the Borrower shall procure the release by EDB of all of the
obligations of that Guarantor Bank under the EDB Guarantee on or
prior to such date (the "Relevant Date") as that Guarantor Bank
shall certify to be necessary to comply with the relevant law or
directive but if the Borrower is unable for any reason to procure
the release by EDB of all of the obligations of that Guarantor
Bank under the EDB Guarantee by the Relevant Date, the Borrower
shall pay to the Agent for the account of that Guarantor Bank on
the Relevant Date an amount equal to that Guarantor Bank's share
of the Guarantee Outstanding Amount (which shall be held by the
Agent for the account of that Guarantor Bank and applied towards
the discharge of the obligations of the Borrower to that
Guarantor Bank under or in connection with this Agreement and
shall only be released to the Borrower as and to the extent that
the maximum contingent liability of the Borrower to that
Guarantor Bank under this Agreement is reduced) and shall pay, on
the date of payment of such amount, any sum then due from the
Borrower to that Guarantor Bank under this Agreement.
Without prejudice to the other provisions of this paragraph (1) and any rights
to which that Guarantor Bank may be entitled, in the event that the Borrower is
unable for any reason to procure the release by EDB of all of the obligations of
that Guarantor Bank under the EDB Guarantee by the Relevant Date, that Guarantor
Bank may:-
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(i) prepay on behalf of the Borrower or purchase itself or
procure the purchase by a nominee of all or any of the
obligations of that Guarantor Bank under the EDB Guarantee,
and any such prepayment or purchase shall be treated as a
payment made pursuant to a demand by EDB under the EDB
Guarantee and the provisions of Clause 5 shall apply to such
prepayment or purchase;
(ii) negotiate any compromise, release, discharge, reduction or
retirement of all or any part of the obligations of that
Guarantor Bank under the EDB Guarantee and any payment made
pursuant to the same shall be treated as a payment made
pursuant to a demand by EDB under the EDB Guarantee and the
provisions of Clause 5 shall apply to such payment; and
(iii) pay any amount received by it under sub-paragraph (b) above
to EDB in exchange for such payment of a release by EDB, to
the extent of such payment, of the obligations of that
Guarantor Bank under the EDB Guarantee, and the provisions
of Clause 5 shall apply to such payment by that Guarantor
Bank as if such payment had been made pursuant to a demand
by EDB under the EDB Guarantee.
(2) If at any time any Lending Bank reasonably determines that it is or
will become unlawful or contrary to any directive of any agency of any state for
it to allow all or part of its Term Commitment to remain outstanding, to make,
fund or allow to remain outstanding all or part of its share of the Advances
and/or to carry out all or any of its other obligations under this Agreement,
upon that Lending Bank notifying the Borrower (through the Agent):-
(a) that Lending Bank's Term Commitment shall be cancelled; and
(b) the Borrower shall prepay, without premium or penalty, that
Lending Bank's share of each Advance on such date as that
Lending Bank shall certify to be necessary to comply with
the relevant law or directive with all unpaid accrued
interest thereon, all unpaid fees accrued to that Lending
Bank and any other sum then due to that Lending Bank under
Clause 19(A) or any other provision of this Agreement in
respect of the amount prepaid.
(B) Increased Costs: (1) If the Agent or (as the case may be) any Bank
reasonably determines that as a result of (a) the introduction of or any change
in, or in the interpretation or application of, any law (which shall for this
purpose include any removal or modification of any exemption currently in force
in favour of the Borrower) or (b) compliance by the Agent or that Bank with the
introduction of or any change in, or the interpretation or application of, any
directive of any agency of any state (including, without limitation, a directive
which affects the manner in which that Bank allocates capital resources to its
obligations under this Agreement):-
(i) the cost to that Bank of maintaining all or any part of its
Commitments and/or of making, maintaining or funding all or
any part of its Outstandings or any overdue sum is
increased; and/or
(ii) any sum received or receivable by the Agent or (as the case
may be) that Bank under this Agreement or the effective
return to it under this Agreement or the overall return on
its capital is reduced (except on account of tax on its
overall net income); and/or
(iii) the Agent or (as the case may be) that Bank makes any
payment (except on account of tax on its overall net income)
or forgoes any interest or other return on
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or calculated by reference to the amount of any sum received
or receivable by it under this Agreement,
the Borrower shall indemnify the Agent or (as the case may be) that Bank against
that increased cost, reduction, payment or forgone interest or other return
(except to the extent that it results from a deduction or withholding of tax)
and, accordingly, shall from time to time on demand (whenever made) pay to the
Agent for its own account or (as the case may be) for the account of that Bank
the amount certified by it to be necessary so to indemnify it.
(2) The indemnity given to a Bank by the Borrower in this sub-Clause
(B) shall not apply to or in respect of any increased cost, reduction, payment
or foregone interest or other return to the extent that it is attributable
solely to the requirement of any central bank or other fiscal, monetary or other
authority which regulates that Bank which is imposed on that Bank by reason of
that Bank's misconduct and not generally imposed by that central bank or other
fiscal, monetary or other authority on banks of the same or similar kind or
class regulated by that central bank or other fiscal, monetary or other
authority.
(C) Change in Market Conditions: (1) If, in relation to any Interest
Period relating to an Advance:-
(a) no, or only one, Reference Bank supplies a quotation as and
when required by Clause 9(B); or
(b) the Agent is notified by the Lending Banks to whom more than
66 2/3 per cent. of that Advance is (or, if made, would be)
owing that (i) they are unable to obtain matching deposits
in the Singapore inter-bank market at or about 11 a.m. on
the second Business Day before the first day of that Inte-
rest Period in sufficient amounts to fund their respective
shares of that Advance during that Interest Period, or (ii)
the arithmetic mean (rounded up, if necessary, to the next
1/16 per cent.) of the Quotations used for fixing the inte-
rest rate under Clause 9(B) does not reflect the cost to
those Lending Banks of obtaining such deposits, or (iii) by
reason of circumstances affecting the Singapore inter-bank
market, adequate and fair means do not or will not exist for
determining the rate of interest applicable to that Advance
for that Interest Period,
the Agent shall promptly notify the Borrower and the Lending Banks.
(2) The Agent (on behalf of and after consultation with the Lending
Banks) shall then negotiate with the Borrower with a view to agreeing on an
alternative basis for calculating the interest payable on and/or for making,
maintaining and/or funding that Advance to which that Interest Period relates.
Any alternative basis agreed in writing by the Agent (on behalf of and with the
consent of all the Lending Banks) and the Borrower within 25 days of the Agent's
notification of the event in question shall take effect in accordance with its
terms.
(3) If an alternative basis is not so agreed, each Lending Bank's share
of that Advance shall during that Interest Period bear interest at the rate per
annum equal to the sum of the Margin and the cost to it (expressed as a rate per
annum) of funding its share during that Interest Period by whatever means it
determines to be appropriate (including the cost to it occasioned by or
attributable to complying with reserves, liquidity, deposit or other
requirements for the time being imposed on it by the relevant authority or
authorities). Each Lending Bank shall certify that cost to the Borrower as soon
as practicable after the end of that 25 day period (but in any event at least
two Business Days before the end of that Interest Period).
(D) Individual Non-Availability: (1) If, in relation to any Interest
Period relating to an Advance, any Lending Bank notifies the Agent that:-
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(a) by reason of circumstances affecting the Singapore inter-bank
market, or a particular category (which includes that Lending
Bank) of banks dealing in that market, it is unable to obtain
matching deposits in the Singapore inter-bank market at or about
11 a.m. on the second Business Day before the first day of that
Interest Period in sufficient amounts to fund its share of that
Advance during that Interest Period; or
(b) by reason of circumstances affecting that market or a particular
category (which includes that Lending Bank) of banks dealing in
that market, the arithmetic mean (rounded up, if necessary, to
the next 1/16 per cent.) of the quotations used for fixing the
interest rate under Clause 9(B) does not reflect the cost to it
of obtaining such deposits,
the Agent shall promptly notify the Borrower accordingly unless it has
already given a notification to the Borrower in relation to that Interest
Period under sub-Clause (C).
(2) The Borrower, the Agent and that Lending Bank shall then
negotiate (unless and until sub-Clause (C) comes into operation in
relation to that Interest Period) with a view to agreeing on an alternative
basis for calculating the interest payable on and/or for making, maintaining
and/or funding that Lending Bank's share of that Advance. Any alternative
basis agreed in writing by the Borrower, the Agent and that Lending Bank
within 25 days of the Agent's notification under paragraph (1) shall take effect
in accordance with its terms. If an alternative basis is not so agreed and
sub-Clause (C) has not come into operation in relation to that Interest Period,
that Lending Bank's share of that Advance shall during that Interest Period
bear interest at the rate per annum equal to the sum of the Margin and the
cost to it (expressed as a rate per annum) of funding its share during that
Interest Period by whatever means it determines to be appropriate
(including the cost to it occasioned by or attributable to complying
with reserves, liquidity, deposit or other requirements for the time
being imposed on it by the relevant authority or authorities). That
Lending Bank shall certify that cost to the Borrower as soon as practicable
after the end of that 25 day period (but in any event at least two Business
Days before the end of that Interest Period). The Borrower may, by notice to
that Lending Bank, request that Lending Bank to assign and transfer all of
the rights and obligations of that Lending Bank to such person as may be named
by the Borrower in its notice and that Lending Bank shall take such steps, at
the cost and request of the Borrower, as may be necessary to assign and
transfer such rights and obligations to such person (and, for the avoidance of
doubt, such Lending Bank shall not be obliged to take any such step until it has
been indemnified against any and all costs and expenses (including legal fees)
which it may incur as a result).
(E) Mitigation: If any circumstances arise which result, or would on the
giving of notice (or the like) result, in the Borrower having to make a payment
to or for the account of the Agent or any Bank under sub-Clause (B) or in the
Guarantee Commitments or any part thereof or the Term Commitments or any part
thereof, being cancelled under sub-Clause (A), then without in any way limiting,
reducing or otherwise qualifying any of the obligations of the Borrower under
this Clause, the Borrower and the Agent or, as the case may be, the relevant
Bank shall enter into consultation with each other with a view towards the Agent
or, as the case may be, that Bank assigning or transferring some or all of its
rights or obligations under this Agreement to another person acceptable to the
Borrower and willing to take that assignment or transfer (provided that no
obligation whatsoever shall be imposed on the Agent or, as the case may be, such
Bank to procure any person to accept that assignment or transfer) and/or the
mitigation of the effect of those circumstances on the Borrower. However, none
of the Banks nor the Agent shall be obliged to take any such steps which would
or might have an adverse effect on the Agent or, as the case may be, such Bank.
13. PAYMENTS
(A) By Lending Banks: (1) On each date on which an Advance is to be made,
each Lending Bank shall make available to the Agent its share (if any) of that
Advance available to the Agent by payment in US Dollars and in funds which are
for same day settlement in the New York Clearing House Interbank
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34
Payments System (or, if such funds cease to exist or, in the Agent's opinion,
cease to be customary for the settlement in New York City of international
banking transactions in US Dollars, such other US Dollar funds as the Agent may
from time to time determine to be customary for that purpose), so as to be
received before 11 a.m. (local time in New York City) to such account of the
Agent with such bank in New York City as the Agent may from time to time
designate.
(2) The Agent shall make the amounts so received by it from the Lending
Banks available to the Borrower before close of business in New York City by
payment in the same currency and funds as received by the Agent to such account
of the Borrower with a bank in New York City as the Borrower shall have
specified in the request for that Advance. If any Lending Bank makes its share
of an Advance available to the Agent later than required by paragraph (1), the
Agent shall make that share available to the Borrower as soon as practicable
thereafter.
(B) To Banks: (1) Unless otherwise provided by this Agreement, all
repayments of principal and payments of interest, commitment fee, guarantee
commission and any other sums due from the Borrower to the Banks under this
Agreement (for the purposes of this sub-Clause (B) collectively called
"Payments") shall be made in the following manner and upon the following terms:-
(a) any Payment to be made in respect of principal of an Advance or
of any commitment fee pursuant to Clause 10(B)(2) shall be made
in US Dollars, any Payment to be made in respect of interest
shall be made in the currency provided in Clause 9(D) or 18(A)
(as the case may be) and each other Payment shall be made in
Singapore Dollars; and
(b) Payments shall be made:-
(i) if that sum is due in Singapore Dollars, by payment in
Singapore Dollars and in immediately available and freely
transferable funds, so as to be received before 11 a.m., to
such account of the Agent with such bank in Singapore as the
Agent may from time to time designate; and
(ii) if that sum is due in US Dollars, by payment in US Dollars
and in funds which are for same day settlement in the New
York Clearing House Interbank Payment System (or, if such
funds cease to exist or, in the Agent's opinion, cease to be
customary for the settlement in New York City of
international banking transactions in US Dollars, such other
US Dollar funds as the Agent may from time to time determine
to be customary for that purpose), so as to be received
before 11 a.m. (local time in New York City) to such account
of the Agent with such bank in New York City as the Agent
may from time to time designate.
(2) The Agent shall make available to each Bank its pro rata share (if
any) of any sum so received by it from the Borrower before close of business in
the Centre of the relevant currency on that date by payment in the same currency
and funds as received by the Agent to such account of that Bank with such bank
in that Centre as it shall have specified to the Agent. If any sum is made
available to the Agent later than required by paragraph (1), the Agent shall
make each Bank's share (if any) available to it as soon as practicable
thereafter.
(C) Order of Distribution: (1) If the amount received by the Agent
from the Borrower for the account of the Guarantor Banks on any date is less
than the total sum remaining and/or becoming due to the Guarantor Banks under
this Agreement on that date, the Agent shall apply that amount in or towards
payment of the following sums in the following order:-
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35
(1) first, any sum then due to the Agent and the Security Trustee in
its capacity as such;
(2) secondly, in or towards payment pro rata of any sums (other than
interest or principal) then due to the Guarantor Banks (or any of
them);
(3) thirdly, in or towards payment pro rata of any interest then due
to the Guarantor Banks (or any of them); and
(4) fourthly, in or towards payment pro rata of any principal then
due to the Guarantor Banks (or any of them).
Any such applications shall override any purported appropriation by any person.
(2) If the amount received by the Agent from the Borrower for the account
of the Lending Banks on any date is less than the total sum remaining and/or
becoming due to the Lending Banks under this Agreement on that date, the Agent
shall apply that amount in or towards payment of the following sums in the
following order:-
(1) first, any sum then due to the Agent and the Security Trustee in
its capacity as such;
(2) secondly, in or towards payment pro rata of any sums (other than
principal of or interest on the Advances) then due to the Lending
Banks (or any of them);
(3) thirdly, in or towards payment pro rata of any interest then due
on the Advances to the Lending Banks (or any of them); and
(4) fourthly, in or towards payment pro rata of any principal then
due to the Lending Banks (or any of them).
Any such applications shall override any purported appropriation by any person.
(D) Refunding of Payments: The Agent shall not be obliged to make
available to any person any sum which it is expecting to receive for the account
of that person until it has been able to establish that it has received that
sum. However, it may do so if it wishes. If and to the extent that it does so
but it transpires that it had not then received the sum which it paid out:-
(1) the person to whom the Agent made that sum available shall on
request refund it to the Agent; and
(2) that person or (at the option of the Agent) the person by whom
that sum should have been made available shall on request pay to
the Agent the amount (as certified by the Agent) which will
indemnify the Agent against any funding or other cost, loss,
expense or liability sustained or incurred by it as a result of
paying out that sum before receiving it but without prejudice to
the rights of any party hereto against such defaulting party.
(E) Non-Business Days: (1) If any Interest Payment Date or Repayment Date
would otherwise fall on a non-Business Day, it shall instead fall on the next
Business Day in the same calendar month (if there is one) or the preceding
Business Day (if there is not).
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(2) Any payment to be made by the Borrower on a day which is not an
Interest Payment Date or Repayment Date and which would otherwise be due on a
non-Business Day shall instead be due on the next Business Day.
14. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to and for the benefit of each
other party to this Agreement as follows:-
(1) Status: it is a company duly incorporated and validly existing
under the laws of Singapore and has the power and authority to
own its assets and to conduct the business which it conducts
and/or proposes to conduct;
(2) Powers: it has the power to enter into, exercise its rights and
perform and comply with its obligations under the Financing
Documents, to undertake the Project and to operate the Plant;
(3) Authorisation and Consents: save for the payment of stamp duty on
this Agreement in Singapore (which shall be effected within two
Business Days from the date of this Agreement), all action,
conditions and things required to be taken, fulfilled and done
(including the obtaining of any necessary consents) in order (a)
(i) to enable it lawfully to enter into, exercise its rights and
perform and comply with its obligations under the Financing
Documents, (ii) to ensure that those obligations are valid,
legally binding and enforceable, (iii) to ensure that those
obligations rank and will at all times rank in accordance with
Clause 16(1) and (iv) to make the Financing Documents admissible
in evidence in the courts of Singapore and the Netherlands and
(b) to undertake the Project and to operate the Plant have been
taken, fulfilled and done;
(4) Non-Violation of Laws: its entry into, exercise of its rights
and/or performance of or compliance with its obligations under
the Financing Documents do not and will not violate, or exceed
any borrowing or other power or restriction granted or imposed
by, (a) any law to which it is subject or (b) its Memorandum or
Articles of Association;
(5) Obligations Binding: its obligations under the Financing
Documents are valid, binding and enforceable;
(6) Non-Violation of Other Agreements: its entry into, exercise of
its rights and/or performance of or compliance with its
obligations under the Financing Documents do not and will not (a)
violate, to an extent or in a manner which has or will have a
material adverse effect on it, any agreement to which it is a
party or which is binding on it or its assets, or (b) result in
the existence of, or oblige it to create, any security over those
assets;
(7) No Default: no Event of Default has occurred and is continuing,
or will occur as a result of the issue of the EDB Guarantee or
the making of any Advance, other than any waived in accordance
with Clause 26(B), and it is not in breach of or default under
any agreement to an extent or in a manner which has or will have
a material adverse effect on it;
(8) Existing Security: no security exists on or over any of its
assets except as permitted by Clause 16(2);
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(9) Accounts: its audited accounts as at 31st December, 1997 and for
the financial year then ended and as delivered to the Agent (with
copies of the reports and approvals referred to in (a) below):-
(a) include such financial statements as are required by the
laws of Singapore and, save as stated in the notes thereto,
were prepared, audited, examined, reported on and approved
in accordance with accounting principles and practices
generally accepted in the United States of America and
consistently applied and in accordance with the laws of
Singapore and its Memorandum and Articles of Association;
(b) together with those notes, give a true and fair view of its
state of affairs and financial condition and operations as
at that date and for the financial year then ended; and
(c) together with those notes and to the extent required by
accounting principles, standards and practices generally
accepted in the United States of America disclose or reserve
against all liabilities (contingent or otherwise) of the
relevant person(s) as at that date and all material
unrealised or anticipated losses from any commitment entered
into by the relevant person(s) and which existed on that
date;
(10) No Material Adverse Change: there has been no material adverse
change in its financial condition or operations since 31st
December, 1997;
(11) Litigation: no litigation, arbitration or administrative
proceeding is current or pending (a) to restrain the entry into,
exercise of its rights under and/or performance or enforcement of
or compliance with its obligations under the Financing Documents
or (b) which has or will have a material adverse effect on it;
(12) Winding-up: no meeting has been convened for its winding-up or
for the appointment of a receiver, trustee, judicial manager or
similar officer of it, its assets or any of them, no such step is
intended by it and, so far as it is aware, no petition,
application or the like is outstanding for its winding-up or for
the appointment of a receiver, trustee, judicial manager or
similar officer of it, its assets or any of them;
(13) Taxes: it has filed or caused to be filed all tax returns which
are required to be filed by it and has paid all taxes due and
payable by it or affecting its assets or the Project (insofar as
they are due and payable) except to the extent that any such
taxes or assessments are being contested in good faith by
appropriate proceedings (provided that it has established (in the
reasonable opinion of the Agent) prudent reserves against such
liability);
(14) Compliance with Laws: it is in compliance with all laws and
regulations affecting the Project;
(15) Intellectual Property: it has or will have available to it all
intellectual property of every description (including, without
limitation, licences, copyrights, design registrations and
know-how) necessary for the implementation of the Project and the
operation of the Plant;
(16) Shareholding: (a) CSM is and will be (either directly or through
any one or more of its wholly-owned subsidiaries) the legal and
beneficial owner of at least 51 per
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cent. of its issued share capital and Singapore Technologies Pte
Ltd is and will be (either directly or through any one or more of
its wholly-owned subsidiaries) the legal and beneficial owner of
at least 51 per cent. of the issued share capital of; and
(b) ATI has and will have an effective shareholding in not less
than 30 per cent. of its issued share capital for a period of not
less than four years from the date of the Joint Venture
Agreement;
(17) No Misstatement: at the date of the relevant Information
Package (a) the information in any Information Package
relating to, and provided by, it was true, complete and
accurate in all material respects; and
(b) the opinions, projections and forecasts in such Information
Package relating to, and provided by, it and the assumptions on
which they are based were arrived at after due and careful
consideration and enquiry and genuinely represented its views;
and
(18) Repetition: each of the above representations and warranties
will be correct and complied with on the date of each request
for an Advance, on the date on which each Advance is to be
made, the date of the request for the issue of the EDB
Guarantee, the date on which the EDB Guarantee is issued and
each Interest Payment Date as if repeated then by reference
to the then existing circumstances.
15. INFORMATION
The Borrower undertakes that, so long as any sum remains to be
lent or remains payable under this Agreement:-
(1) Preparation of Accounts: it will ensure that all audited accounts
to be delivered by it under this Agreement are prepared in such
manner that Clause 14(9) would be complied with if applied to
those accounts by Clause 14(18);
(2) Audited Accounts: as soon as reasonably practicable after the
same are available and in any event within 180 days after the end
of each of its financial years (beginning with the current one),
it will deliver to the Agent enough copies for the Banks of its
audited accounts as at the end of and for that financial year,
together with copies of the related reports and approvals
referred to in Clause 14(9)(a);
(3) Semi-Annual Information: as soon as reasonably practicable after
the same are available and in any event within 45 days after the
end of the first six months of each of its financial years
(begin- ning with the current one), it will deliver to the Agent
enough copies for the Banks of its unaudited accounts as at the
end of and for that six month period;
(4) Litigation: it will as soon as reasonably practicable after the
same are available, deliver to the Agent for distribution to the
Banks details of any litigation, arbitration or administrative
proceeding which, if to its knowledge had been current or pending
at the date of this Agreement, would have rendered the
representa- tion and warranty in Clause 14(11) incorrect;
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(5) Events of Default: it will notify the Agent of the occurrence of
any Event of Default which is continuing (and of any action taken
or proposed to be taken to remedy it) promptly after becoming
aware of it. Promptly after any request made by the Agent from
time to time, it will deliver to the Agent a certificate signed
on its behalf by such person as may be acceptable to the Agent
for that purpose confirming that, so far as it is aware and (if
applicable) except as previously notified to the Agent or waived
in accordance with Clause 26(B), no Event of Default has occurred
which is still continuing or (as the case may be) setting out
details of any which has occurred and has not been so notified
and of which it is aware and of any action taken or proposed to
be taken to remedy it;
(6) Progress Reports: it will deliver to the Agent, within 14 days
after the end of each quarter (beginning with the current one)
ending prior to the date of Completion, a report in the form
agreed between the Borrower and the Banks prior to the date of
this Agreement of the construction and implementation of the
Project;
(7) Suspension of Work: as soon as practicable after it becomes aware
of it, it will inform the Agent if the construction of the Plant
(or any part thereof) is suspended for more than 60 consecutive
days or if the Plant ceases operation for more than 60
consecutive days at any time;
(8) Loss or Damage: as soon as practicable after it becomes aware of
it, it will inform the Agent of any material loss or damage to
the Plant (or any part thereof); and
(9) Other Information: it will as soon as reasonably practicable
deliver to the Agent for distribution to the Banks (a) such other
information relating to the financial condition or business of it
as the Agent (or any Bank through the Agent) may from time to
time reasonably require, and (b) all financial, technical and
other information as the Agent (or any Bank through the Agent)
may from time to time reasonably require in relation to the
Project or the Plant (except for such information of a
proprietary nature or as is reasonably regarded by it as
confidential).
16. UNDERTAKINGS
The Borrower undertakes that, so long as any sum remains to be lent or
remains payable under this Agreement:-
(1) Ranking of Obligations: its payment obligations under this
Agreement rank and will at all times rank at least equally and
rateably in all respects with all its other unsecured
indebtedness except for such indebtedness as would, by virtue
only of the law in force in Singapore, be preferred in the event
of its winding-up;
(2) Negative Pledge: it will not create or have outstanding any
security on or over its assets, except for:-
(a) liens arising solely by operation of law (or by an agreement
evidencing the same) in the ordinary course of its business
in respect of indebtedness which either (i) has been due for
less than 21 days or (ii) is being contested in good faith
and by appropriate means;
(b) the security created by the Security Documents;
(c) the security created by the DSRA Account Charge; and
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(d) any other security created with the prior consent in writing
of the Majority Banks (such consent not to be unreasonably
withheld);
(3) Disposals: it will not, (whether by a single transaction or a
number of related or unrelated transactions and whether at one
time or over a period of time) sell, transfer, lease out, lend or
otherwise dispose of (whether outright, by a sale-and-repurchase
or sale-and-leaseback arrangement, or otherwise) all or
substantially all of its assets nor of any part of its assets
which, either alone or when aggregated with all other disposals
required to be taken into account under this paragraph (3), is
substantial in relation to its assets or the disposal of which
(either alone or when so aggregated) could have a material
adverse effect on it. The following disposals shall not be taken
into account under this paragraph (3):-
(a) disposals in the ordinary course of business;
(b) any disposal of fixed assets, which when aggregated with all
other disposals does not exceed five per cent. of the value
of all its fixed assets as shown in the Current Financial
Report;
(c) any disposal of current receivables under or in connection
with securitisation arrangements on arm's length terms
and/or for valuable consideration; and
(d) any disposal which the Majority Banks shall have agreed
shall not be taken into account;
(4) Change of Business: it will ensure that there is no material
change in the nature of its business taken as a whole (whether by
a single transaction or a number of related or unrelated
transactions, whether at one time or over a period of time and
whether by disposal, acquisition or otherwise);
(5) Compliance with Law: it will at all times comply with all
applicable laws relating to the Project or the operation of the
Plant;
(6) Maintenance of Consents: it will maintain or cause to be
maintained in full force and effect all consents necessary or
advisable for the construction of the Project or the operation of
the Plant;
(7) Completion: it will cause Completion to occur by 31st December,
2000;
(8) Maintenance: it will operate the Plant in accordance with good
industry practice and keep and maintain the Plant in good working
order and condition subject to normal wear and tear;
(9) Abandonment: it will not abandon the Project;
(10) Other Business: it will not carry on any business or activity
other than the ownership and operation of wafer fabrication
plants or any other businesses related thereto;
(11) Inspection of Plant: it will permit the Agent, any Bank and any
representative appointed by the Agent, upon reasonable notice, at
reasonable times and with reasonable frequency (which shall not
be more frequent than once in any calendar
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41
year unless the Agent or that Bank is of the reasonable opinion
that the Plant is in jeopardy), to carry out an inspection of the
Plant and for this purpose provide or procure the provision to
any such person or representative of reasonable access and cause
its agents and employees to give their full co-operation on the
occasion of any such inspection;
(12) Financial Year: it will not change its financial year-end from
31st December;
(13) Restricted Payments: it will not pay out any dividend or repay or
redeem any share capital for any of its financial years unless it
has duly made all payments payable under this Agreement during
that financial year and will not in any event declare or pay out
any dividend or repay or redeem any share capital before 2000;
(14) EDB Loan Agreement: it will (a) not make or agree to any
amendment to the EDB Loan Agreement without the prior consent in
writing of all the Guarantor Banks and will notify the Agent of
the occurrence of any Event of Default (as defined in the EDB
Loan Agreement) by it under the EDB Loan Agreement, (b) duly
perform and comply with its obligations under the EDB Loan
Agreement (including, without limitation, its obligation to repay
the EDB Loan in accordance with the repayment schedule as set out
in the EDB Loan Agreement), (c) ensure that the aggregate
principal amount of the advances made by EDB to the Borrower
during any Utilisation Period shall not exceed the Available EDB
Amount during that Utilisation Period (as may be increased in
accordance with the provisions of Clause 10(B)(1)(c)), (d)
request EDB to notify the Guarantor Banks of the principal amount
and date of each advance made under the EDB Loan Agreement, any
repayment or prepayment thereunder or, as the case may be, the
then revised outstanding balance of principal for the purposes of
Clause 9 of the EDB Guarantee, and (e) as soon as reasonably
practicable and in any event within three Business Days of the
same, notify the Agent of any repayment or prepayment of the EDB
Loan under the EDB Loan Agreement;
(15) Joint Venture Agreement: it will give to the Agent (a) not less
than 30 days prior notice in writing of the termination of the
Joint Venture Agreement and (b) as soon as practicable notice in
writing of any material breach by any party of its obligations
under the Joint Venture Agreement;
(16) Financial Covenants: it will ensure that:-
(a) the ratio of its Borrowings to its Net Worth will not exceed
the following ratios on the dates specified:-
DATE RATIO
---- -------
30th June, 2000 1.5 : 1
31st December, 2000 1.5 : 1
30th June, 2001 2.6 : 1
31st December, 2001 2.6 : 1
30th June, 2002 2.3 : 1
31st December, 2002 1.8 : 1
30th June, 2003 1.5 : 1
31st December, 2003 1.5 : 1
30th June, 2004 1.5 : 1
31st December, 2004 1.5 : 1
30th June, 2005 1.5 : 1
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DATE RATIO
---- ------------
31st December, 2005 1.5 : 1
30th June, 2006 1.5 : 1
31st December, 2006 1.5 : 1; and
(b) at each Calculation Date falling on or after the Relevant Date
(as defined below), DSCR will not be less than 1.2 (as evidenced
by the Current Financial Report for the Calculation Period ending
on that Calculation Date) (for the purposes of this sub-paragraph
(b), "Relevant Date" means the date falling on the earlier of (i)
the date falling 36 months from the date of the Phase 2 Credit
Agreement and (ii) the later of (AA) the date on which the Phase
2 Available Tranche A Facility first equals zero and (BB) the
date on which the Phase 2 EDB Guarantee is issued or (as the case
may be) the date on which the Phase 2 Available Tranche B
Facility first equals zero, provided that if the Relevant Date
falls before 31st December, 2002, the Relevant Date shall be
deemed to be 31st December, 2002);
(17) Insurances: it will:-
(a) effect and maintain or procure that there shall be effected
and maintained, in accordance with good insurance practice,
all such policies as the Agent may from time to time
reasonably require against such risks and liabilities
customary for businesses similar to its business covering
the construction phase and the operational phase of the
Project, in each case from the respective dates and in such
manner and on such terms, including the level of cover, as
may reasonably be required by the Agent with such reputable
insurance companies or underwriters agreed between the
Borrower and the Banks prior to the date of this Agreement
or such other reputable insurance companies or underwriters
notified by the Borrower to the Agent from time to time and
until otherwise required or permitted by the Agent, such
insurances will comprise the following:-
(i) prior to completion of the construction phase for the
Plant:-
(aa) statutory workmen's compensation and employer
liability insurance;
(bb) third party liability insurance;
(cc) comprehensive automobile liability insurance, if
applicable;
(dd) erection all risks insurance; and
(ee) marine cargo insurance;
(ii) after completion of the construction phase of the
Plant:-
(aa) statutory workmen's compensation and employer
liability insurance;
(bb) third party liability insurance;
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(cc) comprehensive automobile liability insurance, if
applicable;
(dd) marine cargo insurance;
(ee) property damage insurance; and
(ff) business interruption insurance;
(b) pay, or where it is not primarily responsible for taking out
any insurance policy required by this paragraph (17),
promptly, upon becoming aware that the same are due and not
paid, pay or ensure the payment of all initial and
subsequent instalments of insurance premiums and not take or
omit to take any action which would reduce in any material
respect or render void the cover provided by any of the
insurance policies;
(c) from time to time upon reasonable request supply the Agent
with copies of all contracts and policies (including any
contract notes) issued in respect of the insurance policies
and reinsurance policies and of receipts (or other evidence
of payment) for such insurances; and
(d) as soon as reasonably practicable and in any event within
seven Business Days after becoming aware of the same notify
the Agent of any claims in excess of US$5,000,000, or the
equivalent thereof in any other currency, which it may make
under any such policy of insurance.
The Agent shall be entitled to pay any premiums or other amounts
payable by it, in respect of the insurance policies and it will
forthwith upon demand reimburse the Agent for all such amounts
paid;
(18) No Subsidiaries: it will not establish, incorporate or acquire
any subsidiary or subsidiaries without the prior consent in
writing of the Majority Banks; and
(19) Further Assurance: it will from time to time on request by the
Agent (or by any Bank through the Agent) do or procure the doing
of all such acts and will execute or procure the execution of all
such documents as the Agent or any Bank may reasonably consider
necessary for giving full effect to the Financing Documents or
securing to the Agent and the Banks the full benefits of all
rights, powers and remedies conferred upon the Agent and the
Banks in the Financing Documents.
17. EVENTS OF DEFAULT
(A) Events of Default: The following are Events of Default:-
(1) Non-Payment: (a) the Borrower does not pay in the manner provided
in this Agreement any sum payable under it when due or (b) any
Shareholder Obligor does not pay in the manner provided in the
Financing Documents to which it is a party any sum payable under
it when due;
(2) Breach of Other Obligations: (a) the Borrower does not perform or
comply with any one or more of its obligations (other than the
payment obligation of the Borrower referred to in paragraph (1))
under the Financing Documents and, if in the reasonable opinion
of the Majority Banks that default is capable of remedy, it
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is not in the reasonable opinion of the Majority Banks remedied
within 14 days of its occurrence; or
(b) any Shareholder Obligor does not perform or comply with any
one or more of its obligations (other than the payment
obligations of such Shareholder Obligor referred to in paragraph
(1)) under the Financing Documents to which it is a party and, if
in the reasonable opinion of the Majority Banks that default is
capable of remedy, it is not in the reasonable opinion of the
Majority Banks remedied within 14 days of its occurrence;
(Provided that if there is a breach by the Borrower of its
obligations under Clause 16(16)(b) on any Calculation Date, such
a breach will not be regarded as an Event of Default if (i) the
aggregate amount of Shareholder Funding (as defined in the
Shareholders Undertaking) is not less than S$720,000,000 as at
that Calculation Date (assuming due compliance by the
Shareholders of their respective obligations under Clause 2(A) of
the Shareholders Undertaking) and (ii) the Shareholders (or any
of them) have paid to the Borrower (by way of Shareholder
Funding) within 60 days from that Calculation Date, an amount (as
determined by the Agent) to enable the Borrower to meet any
shortfall in its ability to meet all payments referred to in
component "B" of the definition of DSCR falling due during the
next succeeding Calculation Period);
(3) Breach of Warranty: (a) any representation, warranty or statement
by the Borrower in the Financing Documents or in any document
delivered under the Financing Documents is not complied with or
is or proves to have been incorrect when made or deemed repeated
and, if in the reasonable opinion of the Majority Banks that
breach is capable of remedy, it is not in the reasonable opinion
of the Majority Banks remedied within 14 days of its occurrence;
or
(b) any representation, warranty or statement by any Shareholder
Obligor in the Financing Documents to which it is a party or in
any document delivered under the Financing Documents to which it
is a party is not complied with or is or proves to have been
incorrect when made or deemed repeated and, if in the reasonable
opinion of the Majority Banks that breach is capable of remedy,
it is not in the reasonable opinion of the Majority Banks
remedied within 14 days of its occurrence;
(4) Cross Default: any other indebtedness of the Borrower or any
Shareholder Obligor (other than a Shareholder Obligor which has
discharged all its obligations under Clause 2(A) of the
Shareholders Undertaking or ATI which has discharged all its
obligations under the ATI Guarantee or HP which has discharged
all its obligations under the HP Guarantee) in respect of
borrowed money is or is declared to be or is capable of being
rendered due and payable before its normal maturity by reason of
any default, event of default or the like (however described) or
is not paid when due or, as a result of any default, event of
default or the like (however described) any facility relating to
any such indebtedness is or is declared to be or is capable of
being cancelled or terminated before its normal expiry date or
any person otherwise entitled to use any such facility is not so
entitled. However, no Event of Default will occur under this
paragraph (4) unless and until the aggregate amount of the
indebtedness in respect of which one or more of the events
mentioned above in this paragraph (4) has/have occurred equals or
exceeds S$20,000,000 or its equivalent (as reasonably determined
by the Agent);
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(5) Insolvency: the Borrower or any Shareholder Obligor is (or is, or
could be, deemed by law or a court to be) insolvent or unable to
pay its debts, stops, suspends or threatens to stop or suspend
payment of all or any part of (or of a particular type of) its
indebtedness (other than the stopping or suspension of payment of
any part of its indebtedness if such indebtedness is being
contested by it in good faith and by appropriate means), begins
negotiations or takes any other step with a view to the deferral,
rescheduling or other readjustment of all or any part of (or of a
particular type of) its indebtedness (or of any part which it
will or might otherwise be unable to pay when due), proposes or
makes a general assignment or an arrangement or composition with
or for the benefit of the relevant creditors or a moratorium is
agreed or declared in respect of or affecting all or any part of
(or of a particular type of) the indebtedness of the Borrower or
any Shareholder Obligor (other than a Shareholder Obligor which
has discharged all its obligations under Clause 2(A) of the
Shareholders Undertaking or ATI which has discharged all its
obligations under the ATI Guarantee or HP which has discharged
all its obligations under the HP Guarantee);
(6) Enforcement Proceedings: a distress, attachment, execution or
other legal process is levied, enforced or sued out on or against
the assets of the Borrower or any Shareholder Obligor (other than
a Shareholder Obligor which has discharged all its obligations
under Clause 2(A) of the Shareholders Undertaking or ATI which
has discharged all its obligations under the ATI Guarantee or HP
which has discharged all its obligations under the HP Guarantee)
and is not discharged or stayed within 14 days;
(7) Security Enforceable: any security on or over the assets of the
Borrower or any Shareholder Obligor (other than a Shareholder
Obligor which has discharged all its obligations under Clause
2(A) of the Shareholders Undertaking or ATI which has discharged
all its obligations under the ATI Guarantee or HP which has
discharged all its obligations under the HP Guarantee) becomes
enforceable;
(8) Winding-up: any step is taken by any person with a view to the
winding-up of the Borrower or any Shareholder Obligor (other than
a Shareholder Obligor which has discharged all its obligations
under Clause 2(A) of the Shareholders Undertaking or ATI which
has discharged all its obligations under the ATI Guarantee or HP
which has discharged all its obligations under the HP Guarantee)
or (except for the purpose of and followed by a reconstruction,
amalgamation, reorganisation, merger or consolidation on terms
approved by the Majority Banks before that step is taken) or for
the appointment of a liquidator (including a provisional
liquidator), receiver, judicial manager, trustee, administrator,
agent or similar officer of the Borrower or any Shareholder
Obligor (other than a Shareholder Obligor which has discharged
all its obligations under Clause 2(A) of the Shareholders
Undertaking or ATI which has discharged all its obligations under
the ATI Guarantee or HP which has discharged all its obligations
under the HP Guarantee) or over any part of the assets of the
Borrower or any Shareholder Obligor (other than a Shareholder
Obligor which has discharged all its obligations under Clause
2(A) of the Shareholders Undertaking or ATI which has discharged
all its obligations under the ATI Guarantee or HP which has
discharged all its obligations under the HP Guarantee);
(9) Cessation of Business: the Borrower or any Shareholder Obligor
(other than a Shareholder Obligor which has discharged all its
obligations under Clause 2(A) of the Shareholders Undertaking or
ATI which has discharged all its obligations under the ATI
Guarantee or HP which has discharged all its obligations under
the
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HP Guarantee) ceases or threatens to cease to carry on
all or a substantial part of its business;
(10) 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 Shareholder Obligor (other than a Shareholder
Obligor which has discharged all its obligations under Clause
2(A) of the Shareholders Undertaking or ATI which has discharged
all its obligations under the ATI Guarantee or HP which has
discharged all its obligations under the HP Guarantee);
(11) Consents: any action, condition or thing (including the obtaining
of any necessary consent) at any time required to be taken,
fulfilled or done for any of the purposes stated in Clause 14(3)
is not taken, fulfilled or done, or any such consent ceases to be
in full force and effect without modification or any condition in
or relating to any such consent is not complied with (unless that
consent or condition is no longer required or applicable);
(12) Illegality: it is or will become unlawful for the Borrower to
perform or comply with any one or more of its obligations under
the Financing Documents or for any Shareholder Obligor to perform
or comply with any one or more of its obligations under the
Financing Documents to which it is a party;
(13) Cessation: any Financing Document ceases for any reason (or is
claimed by the Borrower not) to be the legal and valid
obligations of the Borrower, binding upon it in accordance with
its terms or the Financing Documents to which any of the
Shareholder Obligors is a party ceases for any reason (or is
claimed by any Shareholder Obligor not) to be the legal and valid
obligations of any Shareholder Obligor, binding upon it in
accordance with its terms;
(14) Litigation: any litigation, arbitration or administrative
proceeding (other than those reasonably determined by the
Majority Banks to be of a frivolous or vexatious nature) is
current or pending (a) to restrain the exercise of any of the
rights and/or the performance or enforcement of or compliance
with any of the obligations of the Borrower under the Financing
Documents or for any Shareholder Obligor to perform or comply
with any one or more of its obligations under the Financing
Documents to which it is a party or (b) which has or could have a
material adverse effect on the Borrower or on any Shareholder
Obligor (other than a Shareholder Obligor which has discharged
all its obligations under Clause 2(A) of the Shareholders
Undertaking or ATI which has discharged all its obligations under
the ATI Guarantee or HP which has discharged all its obligations
under the HP Guarantee);
(15) Non-Completion: for any reason Completion has not occurred
by 31st December, 2000;
(16) Abandonment: the Project or any part of the Project is cancelled
or abandoned;
(17) Damage: the Plant or any part of the Plant is damaged to an
extent which, in the reasonable opinion of the Majority Banks,
renders it impossible or impracticable to reinstate it within any
reasonable period specified by the Majority Banks;
(18) Plant: a total loss or constructive total loss occurs in relation
to the Plant;
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(19) Infringement of Rights: at any time after any person commences a
law suit or other legal proceedings against the Borrower (whether
as sole defendant or jointly with one or more other persons)
alleging that the Borrower has infringed any third party
intellectual property rights in the course of manufacturing
products in Singapore, in the operation of the Plant in Singapore
or otherwise, the Majority Banks reasonably determine that the
potential or actual liability of the Borrower in respect of such
law suit or other legal proceedings would be reasonably likely to
result in the Borrower being unable to perform or comply with any
of its obligations under the Financing Documents;
(20) Shareholding: (a) CSM ceases for any reason to be (either
directly or through any one or more of its wholly-owned
subsidiaries) the legal and beneficial owner of at least 51 per
cent. of the issued share capital of the Borrower or Singapore
Technologies Pte Ltd ceases for any reason to be (either directly
or through any one or more of its wholly-owned subsidiaries) the
legal and beneficial owner of at least 51 per cent. of the issued
share capital of CSM; or
(b) ATI ceases for any reason to have an effective shareholding
in at least 30 per cent. of the issued share capital of the
Borrower for a period of not less than four years from the date
of the Joint Venture Agreement;
(21) Declared Company: the Borrower or any Shareholder Obligor (other
than a Shareholder Obligor which has discharged all its
obligations under Clause 2(A) of the Shareholders Undertaking or
ATI which has discharged all its obligations under the ATI
Guarantee or HP which has discharged all its obligations under
the HP Guarantee) is declared by the Minister for Finance to be a
company to which Part IX of the Companies Act, Chapter 50
applies;
(22) Analogous Event: any event occurs which, under the law of any
relevant jurisdiction, has an analogous or equivalent effect to
any of the events mentioned in paragraphs (5), (6), (8) or (10);
or
(23) Material Adverse Change: any event occurs or circumstances arise
which the Majority Banks reasonably determine give(s) reasonable
grounds for believing that the Borrower will not (or will be
unable to) perform or comply with any one or more of its
obligations under any Financing Document or that any Shareholder
Obligor (other than a Shareholder Obligor which has discharged
all its obligations under Clause 2(A) of the Shareholders
Undertakings or ATI which has discharged all its obligations
under the ATI Guarantee or HP which has discharged all its
obligations under the HP Guarantee) will not (or will be unable
to) perform or comply with any one or more of its obligations
under the Financing Documents to which it is a party.
(B) Cancellation/Acceleration: (1) If at any time and for any (and whether
within or beyond the control of any party to this Agreement) any Event of
Default has occurred then at any time thereafter, while an Event of Default is
continuing, the Agent may and, if so instructed by the Majority Banks, shall by
notice to the Borrower:-
(a) declare the Commitments to be cancelled, whereupon they shall be
cancelled; and/or
(b) declare all Advances, all unpaid accrued interest or fees and any
other sum then payable under this Agreement to be immediately due
and payable, whereupon they shall become so due and payable;
and/or
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(c) demand from the Borrower payment of an amount equal to the
Guarantee Outstanding Amount, whereupon the Borrower shall pay to
the Agent such amount, which shall be held by the Agent for the
account of the Guarantor Banks and applied towards the discharge
of the obligations of the Borrower to the Guarantor Banks under
or in connection with this Agreement. Without prejudice to the
other provisions of this sub-paragraph (c) and any rights to
which the Agent or any Guarantor Bank may be entitled, the Agent
may:-
(i) prepay on behalf of the Borrower or purchase itself or
procure the purchase by a nominee of all or any of the
obligations of the Guarantor Banks under the EDB
Guarantee, and any such prepayment or purchase shall be
treated as a payment made pursuant to a demand by EDB
under the EDB Guarantee and the provisions of Clause 5
shall apply to such prepayment or purchase;
(ii) negotiate any compromise, release, discharge, reduction
or retirement of all or any of the obligations of the
Guarantor Banks under the EDB Guarantee and any payment
made pursuant to the same shall be treated as a payment
made pursuant to a demand by EDB under the EDB
Guarantee and the provisions of Clause 5 shall apply to
such payment; and
(iii) pay any amount received by it under sub-paragraph (c)
(ii) above to EDB in exchange for such payment of a
release by EDB, to the extent of such payment, of the
obligations of the Guarantor Banks under the EDB
Guarantee, and the provisions of Clause 5 shall
apply to such payment by the Guarantor Banks as if such
payment had been made pursuant to a demand by EDB under
the EDB Guarantee.
(2) Without prejudice to any of the obligations of the Borrower under this
Agreement (including, without limitation, the obligation of the Borrower to make
any payment to the Agent and/or any of the Banks under paragraph (1) above), the
Agent shall, within three Business Days after any request from the Borrower made
at any time after the making of a declaration by the Agent under paragraph (1)
above by reason of the occurrence of an event referred to in sub-Clause (A)(23)
above, notify the Borrower of the grounds for the determination made by the
Majority Banks referred to in that sub-Clause (A)(23).
18. DEFAULT INTEREST
(A) Interest on Overdue Sums: If the Borrower does not pay any sum payable
under this Agreement (including, without limitation, any sum payable under this
Clause) when due, it shall pay interest on the amount from time to time
outstanding in respect of that overdue sum, in the currency of that overdue sum,
for the period beginning on its due date and ending on the date of its receipt
by the Agent (both before and after judgment) in accordance with this Clause.
For the purpose of this Clause, if any payment is received by the Agent on the
due date, but after the time required by Clause 13(A) and too late to be made
available by the Agent on that due date to the person(s) entitled to it under
Clause 13(C), that payment shall be deemed to be received on the next Business
Day.
(B) Default Interest Periods and Rates: Interest under this Clause shall
be calculated by reference to successive Interest Periods, each of which (other
than the first, which shall begin on the due date) shall begin on the last day
of the previous one. Each such Interest Period shall be of one month or such
other period as the Agent may from time to time select and (1) the rate of
interest applicable to an overdue sum denominated in US Dollars for all or any
part of a particular Interest Period relating to that overdue sum shall be the
rate per annum equal to the sum of three per cent. and the rate which would be
applicable to that overdue sum for (or, as the case may be, for that part of)
that Interest Period under Clause 9(B) if that overdue sum were a non-overdue
Advance and (2) the rate of interest applicable to any other overdue sum
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denominated in Singapore Dollars for all or any part of a particular Interest
Period relating to that overdue sum shall, in respect of each person's share of
that overdue sum on each day during that Interest Period, be the rate per annum
equal to the sum of three per cent., the Margin and the cost to that person
(as certified by it to the Agent and expressed as a rate per annum) of funding
its share (including, without limitation, the Swap Rate in relation to that
overdue sum, except as follows:-
(a) subject to the following exceptions, until the third Business Day
after the Agent becomes aware of the relevant default, each
Interest Period relating to the relevant overdue sum denominated
in US Dollars shall be an "overnight" period beginning on one
Business Day and ending on the next and the rate of interest for
a particular "overnight" period shall be the rate per annum equal
to the sum of three per cent., the Margin and the arithmetic mean
(rounded up, if necessary, to the next 1/16 per cent.) of the
respective rates quoted by each Reference Bank to the Agent on
request as the rate at which it is offering "overnight" deposits
for that period in amounts comparable to that overdue sum;
(b) if the overdue sum is of principal of an Advance and becomes due
otherwise than on an Interest Payment Date relating to that
Advance, the first default Interest Period applicable to that
overdue sum shall end on that Interest Payment Date and the rate
of interest applicable to that sum for that Interest Period shall
be the rate per annum equal to the sum of three per cent. and the
rate applicable to it immediately before it became due; and
(c) if any event equivalent to those mentioned in Clause 12(C) occurs
in relation to any Interest Period applicable to an overdue sum,
the rate of interest payable on each person's share of that sum
for all or any part of that Interest Period shall be the sum of
three per cent., the Margin and the cost to that person (as
certified by it and expressed as a rate per annum) of funding its
share during that Interest Period by whatever means it determines
to be appropriate (including the cost occasioned by or
attributable to complying with reserves, liquidity, deposit or
other requirements for the time being imposed on it by the
relevant authority or authorities).
(C) Notification of Interest Rates: The Agent shall promptly notify the
Borrower and the Banks of each rate of interest determined in accordance with
sub-Clause (B).
(D) Payment and Compounding of Default Interest: (1) On the last day of
each Interest Period, the Borrower shall pay the unpaid interest accrued during
that Interest Period on the overdue sum to which it relates at the rate
applicable for that Interest Period.
(2) Interest accrued under this Clause on an overdue sum shall due on
demand by the Agent but, if not previously demanded, shall be paid when due in
accordance with paragraph (1). If not paid when due, the interest shall be added
to that overdue sum and itself bear interest accordingly.
19. INDEMNITIES
(A) Miscellaneous Indemnities: The Borrower shall on demand indemnify each
of the Agent, the Arrangers and the Banks against any funding or other cost,
loss, expense or liability sustained or incurred by it as a result of:-
(1) an Advance not being made by reason of non-fulfilment of any of
the conditions in Clause 6(A) or the Borrower purporting to
revoke a notice requesting an Advance;
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(2) the occurrence or continuance of any Event of Default; or
(3) the receipt or recovery by any party (or the Agent on its behalf)
of all or any part of an Advance or an overdue sum otherwise than
on the last day of an Interest Period relating to that Advance or
overdue sum.
(B) Broken Funding Costs: In the case of sub-Clause (A)(1) and (3) above,
the amount payable shall in any event include the amount (if any) by which:-
(1) the amount of interest which the relevant person is able to
obtain by placing an amount equal to its share of the relevant
Advance or overdue sum on deposit in the Singapore inter-bank
market, for the remainder of the relevant Interest Period, as
soon as reasonably practicable after it becomes aware that the
relevant Advance is not being made or (as the case may be) of the
relevant receipt or recovery,
is less than:-
(2) the amount of interest which, in accordance with the expressed
terms of this Agreement, would otherwise be payable to that
person on its share of that Advance for its first Interest Period
or (as the case may be) on the relevant amount so received or
recovered for the remainder of the relevant Interest Period.
(C) Currency Indemnity: (1) Any amount received or recovered by the Agent,
any Arranger or any Bank in respect of any sum expressed to be due to it from
the Borrower under or in connection with this Agreement in a currency (such
currency being referred to as the "Relevant Currency") other than the currency
in which such sum is expressed to be due under this Agreement (such currency
being referred to as the "Currency of Account") whether as a result of, or of
the enforcement of, a judgment or order of a court or tribunal of any
jurisdiction, in the winding-up of the Borrower or otherwise, shall only
constitute a discharge to the Borrower to the extent of the amount in the
Currency of Account which the recipient is able, in accordance with its usual
practice, to purchase with the amount of the Relevant Currency so received or
recovered on the date of that receipt or recovery (or, if it is not practicable
to make that purchase on that date, on the first date on which it is practicable
to do so).
(2) If that amount in the Currency of Account is less than the amount of
the Currency of Account due to the recipient under or in connection with this
Agreement, the Borrower shall indemnify it against any loss sustained by it as a
result. In any event, the Borrower shall indemnify the recipient against the
cost of making any such purchase. For the purpose of this sub-Clause (C), it
will be sufficient for the recipient to demonstrate that it would have suffered
a loss had an actual exchange or purchase been made.
(D) Indemnities Separate: Each of the indemnities in this Agreement
constitutes a separate and independent obligation from the other obligations in
this Agreement, shall give rise to a separate and independent cause of action,
shall apply irrespective of any indulgence granted by the Agent, any Arranger
and/or any Bank and shall continue in full force and effect despite any
judgment, order, claim or proof for a liquidated amount in respect of any sum
due under this Agreement or any other judgment or order.
20. THE AGENT AND ARRANGERS
(A) Appointment of Agent: Each Bank irrevocably appoints the Agent to act
as its agent for the purpose of the Financing Documents and authorises the Agent
to take such action and exercise such rights, powers and discretions as are
specifically delegated to the Agent by the Financing Documents and such other
action, rights, powers and discretions as are reasonably incidental. However,
the Agent may not begin any legal action or proceeding in the name of a Bank
without its consent. The relationship between the Agent and the Banks is of
agent and principal only. The Agent shall not be a trustee for any Bank, nor an
agent or trustee for the Borrower, under or in relation to the Financing
Documents.
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(B) Agent's Duties: The Agent shall:-
(1) promptly send to each Bank details of each written communication
received by it from the Borrower or any Shareholder Obligor under
the Financing Documents, except that details of any written
communication relating to a particular Bank shall be sent to that
Bank only;
(2) promptly send to each Bank a copy of any legal opinion delivered
under this Agreement and of any document or information received
by it under Clause 4 or 15;
(3) subject to the other provisions of this Clause, act in accordance
with any instructions from the Majority Banks or, if so
instructed by the Majority Banks, refrain from exercising a
right, power or discretion vested in it under the Financing
Documents; and
(4) have only those duties, obligations and responsibilities
expressly specified in the Financing Documents.
(C) Agent's Rights: The Agent may:-
(1) perform any of its duties, obligations and responsibilities under
the Financing Documents by or through its personnel or agents;
(2) refrain from exercising any right, power or discretion vested in
it under the Financing Documents until it has received
instructions from the Majority Banks as to whether (and, if it is
to be, the way in which) it is to be exercised and shall in all
cases be fully protected when acting, or (if so instructed)
refraining from acting, in accordance with instructions from the
Majority Banks;
(3) treat the Lending Bank which makes available any share of
an Advance as the person entitled to repayment of that share
unless all or part of it has been transferred (or the Agent has
received a notice of the assignment of all or part of it) in
accordance with Clause 25(C); and may act on any such transfer or
notice until it is superseded by a further transfer or notice;
(4) refrain from doing anything which would or might in its opinion
be contrary to any law or any directive of any agency of any
state or otherwise render it liable to any person and may do
anything which is in its opinion necessary to comply with any
such law or directive;
(5) assume that no Event of Default or Potential Event of Default has
occurred unless an officer of the Agent, while active on the
account of the Borrower or any Shareholder Obligor, acquires
actual knowledge to the contrary; and
(6) refrain from taking any step (or further step) to protect or
enforce the rights of any person under the Financing Documents
until it has been indemnified (or received confirmation that it
will be so indemnified) and/or secured to its satisfaction
against any and all costs, losses, expenses or liabilities
(including legal fees) which it would or might sustain or incur
as a result.
(D) Rights of the Agent and Arrangers: Each of the Agent and the Arrangers
may:-
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(1) rely on any communication, certificate, legal opinion or other
document believed by it to be genuine and assume that any person
notified to it by the Borrower or any Shareholder Obligor as duly
authorised to take any action contemplated by the Financing
Documents remains so authorised until it has received notice to
the contrary from the Borrower or such Shareholder (as the case
may be);
(2) rely as to any matter of fact which might reasonably be expected
to be within the knowledge of the Borrower or any Shareholder
Obligor on a statement by or on behalf of the Borrower or such
Shareholder Obligor (as the case may be);
(3) obtain and pay for such legal or other expert advice or services
as may to it seem necessary or desirable and rely on any such
advice;
(4) retain for its own benefit and without liability to account any
fee or other sum receivable by it for its own account; and
(5) accept deposits from, lend money to, provide any advisory or
other services to or engage in any kind of banking or other
business with any party to the Financing Documents or any
subsidiary or any associated company of any such party (and, in
each case, may do so without liability to account).
(E) Exoneration of Agent and Arrangers: Neither the Agent nor the
Arrangers nor any of their respective personnel or agents shall be:-
(1) responsible for the adequacy, accuracy, completeness or
reasonableness of any representation, warranty, statement,
projection, assumption or information in the Financing Documents
or any notice or other document delivered under or in connection
with the Financing Documents;
(2) responsible for the execution, delivery, validity, legality,
adequacy, enforceability or admissibility in evidence of the
Financing Documents or any such notice or other document;
(3) obliged to enquire as to the occurrence or continuation of an
Event of Default or Potential Event of Default; or
(4) liable for anything done or not done by it or any of them under
or in connection with the Financing Documents save in the case of
its or their own gross negligence or wilful misconduct.
The Arrangers shall not have any duty, obligation or responsibility under or in
connection with the Financing Documents.
For the purposes of this Clause, the Agent shall not be treated as having actual
knowledge of any matter of which any shareholder of the Agent or any of its
holding companies, subsidiaries or associated companies or the corporate finance
department or any other division outside the department, division or team
directly responsible for the management of the Commitments may become aware in
the context of lending, corporate finance or advisory activities from time to
time undertaken by the Agent for the Borrower.
(F) Agent as Bank: The Agent shall have the same rights and powers with
respect to its Commitments (if any) and its Outstandings (if any) as any other
Bank and may exercise those rights and powers as if it were not also acting as
Agent.
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(G) Non-Reliance on Agent and Arrangers: Each Bank confirms that it has
itself been, and will at all times continue to be, solely responsible for making
its own independent investigation and appraisal of the business, operations,
financial condition, prospects, creditworthiness, status and affairs of the
Borrower, the Shareholder Obligors and their respective subsidiaries and has not
relied, and will not at any time rely, on the Agent, any Arranger and/or any
other Bank:-
(1) to provide it with any information relating to the business,
operations, financial condition, prospects, creditworthiness,
status or affairs of the Borrower or any other person, whether
coming into its possession before or after the issue of the EDB
Guarantee or the making of any Advance (except, in the case of
the Agent, as stated in sub-Clause (B)); or
(2) to check or enquire into the adequacy, accuracy, completeness or
reasonableness of any representation, warranty, statement,
projection, assumption or information at any time provided by or
on behalf of the Borrower, any Shareholder Obligor or any other
person under or in connection with the Financing Documents
(whether or not such information has been or is at any time
circulated to it by the Agent and/or any Arranger); or
(3) to assess or keep under review the business, operations,
financial condition, prospects, creditworthiness, status or
affairs of the Borrower, any Shareholder Obligor or any other
person.
(H) Indemnity to Agent: To the extent that the Borrower does not do so on
demand or is not obliged to do so, each Bank shall on demand indemnify the Agent
in the proportion borne by its Outstandings to all the Outstandings at the
relevant time (or, if there are then no Outstandings, in the proportion borne by
its Commitment to the total Commitments) against any cost, expense or liability
mentioned in Clause 23 or sustained or incurred by the Agent in complying with
any instructions from the Majority Banks or otherwise sustained or incurred by
it in connection with the Financing Documents or its duties, obligations and
responsibilities under the Financing Documents except to the extent that they
are sustained or incurred as a result of the negligence or wilful misconduct of
the Agent or any of its personnel or agents.
(I) Resignation of Agent: Notwithstanding the irrevocable appointments in
sub-Clause (A), the Agent may resign at any time (after consultation with the
Borrower) if it gives at least 30 days' notice to the Borrower and the Banks.
However, no resignation shall be effective until the successor has been
appointed and accepted its appointment in accordance with this sub-Clause (I).
The Majority Banks may appoint a successor to the resigning Agent but, if the
successor has not been so appointed and accepted its appointment within 15 days
after the date of the notice of resignation, the resigning Agent may appoint a
successor Agent, which must be a reputable and experienced bank or financial
institution with an office in Singapore. Any appointment of a successor must be
in writing, signed by the person(s) appointing that successor and delivered to
that successor. Any acceptance of such appointment must be in writing, signed by
the person appointed and delivered to the person(s) appointing that successor.
The other parties to this Agreement shall be promptly informed of the acceptance
by a successor Agent. Upon the successor accepting its appointment, the
resigning Agent shall be automatically discharged from any further obligation
under this Agreement and its successor and each of the other parties to this
Agreement shall have the same rights and obligations among themselves as they
would have had if the successor had been the original Agent party to this
Agreement. The resigning Agent shall provide its successor with (or with copies
of) such records as its successor requires to carry out its duties under this
Agreement.
(J) Transfer Notice: The Borrower, the Arrangers, the Security Trustee and
each Bank (except for the Lending Bank and the New Lending Bank seeking the
relevant transfer in accordance with Clause 25(C)) irrevocably authorise the
Agent to sign each Transfer Notice on their behalf.
21. THE SECURITY TRUSTEE
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(A) Appointment of Security Trustee: Each Bank acknowledges that the
Security Trustee will act as its trustee in connection with the Project Account
Charge pursuant to the Trust Deed.
(B) Security Trustee's Rights: The Security Trustee may:-
(1) perform any of its duties, obligations and responsibilities under
either of the Project Account Charge and the Trust Deed by or
through its personnel or agents;
(2) refrain from exercising any right, power or discretion vested in
it under either of the Project Account Charge and the Trust Deed
until it has received instructions from the Majority Banks as to
whether (and, if it is to be, the way in which) it is to be
exercised and shall in all cases be fully protected when acting,
or (if so instructed) refraining from acting, in accordance with
instructions from the Majority Banks;
(3) refrain from doing anything which would or might in its opinion
be contrary to any law or any directive of any agency of any
state or otherwise render it liable to any person and may do
anything which is in its opinion necessary to comply with any
such law or directive;
(4) assume that no Event of Default or Potential Event of Default has
occurred unless an officer of the Security Trustee, while active
on the account of the Borrower or any Shareholder, acquires
actual knowledge to the contrary;
(5) refrain from taking any step (or further step) to protect or
enforce the rights of any person under either of the Project
Account Charge and the Trust Deed until it has been indemnified
(or received confirmation that it will be so indemnified) and/or
secured to its satisfaction against any and all costs, losses,
expenses or liabilities (including legal fees) which it would or
might sustain or incur as a result;
(6) rely on any communication, certificate, legal opinion or other
document believed by it to be genuine and assume that (a) any
person notified to it by the Borrower as duly authorised to take
any action contemplated by either of the Project Account Charge
and the Trust Deed remains so authorised until it has received
notice to the contrary from the Borrower and (b) any person
notified to it by any Shareholder as duly authorised to take any
action contemplated by either of the Project Account Charge and
the Trust Deed remains so authorised until it has received notice
to the contrary from such Shareholder;
(7) rely as to any matter of fact which might reasonably be expected
to be within the knowledge of the Borrower or any Shareholder on
a statement by or on behalf of the Borrower or such Shareholder
(as the case may be);
(8) obtain and pay for such legal or other expert advice or services
as may to it seem necessary or desirable and rely on any such
advice;
(9) retain for its own benefit and without liability to account any
fee or other sum receivable by it for its own account; and
(10) accept deposits from, lend money to, provide any advisory or
other services to or engage in any kind of banking or other
business with any party to this Agreement or either of the
Project Account Charge and the Trust Deed or any subsidiary or
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any associated company of any such party (and, in each case, may
do so without liability to account).
(D) Exoneration of Security Trustee: Neither the Security Trustee nor any
of its personnel or agents shall be:-
(1) responsible for the adequacy, accuracy, completeness or
reasonableness of any representation, warranty, statement,
projection, assumption or information in any of the Financing
Documents to which it is a party or any notice or other document
delivered under or in connection with or any of the Financing
Documents;
(2) responsible for the execution, delivery, validity, legality,
adequacy, enforceability or admissibility in evidence (except the
Security Trustee with respect to its own execution of any
document or agreement) of any of the Financing Documents to which
it is a party or any such notice or other document;
(3) obliged to enquire as to the occurrence or continuation of an
Event of Default or Potential Event of Default; or
(4) liable for anything done or not done by it or any of them under
or in connection with either of the Project Account Charge and
the Trust Deed save in the case of its or their own negligence or
wilful misconduct.
(E) Security Trustee as Bank: The Security Trustee shall have the same
rights and powers with respect to its Commitment (if any) and its Outstandings
(if any) as any other Bank and may exercise those rights and powers as if it
were not also acting as Security Trustee.
(F) Non-Reliance on Security Trustee: Each Bank confirms that it has
itself been, and will at all times continue to be, solely responsible for making
its own independent investigation and appraisal of the business, operations,
financial condition, prospects, creditworthiness, status and affairs of the
Borrower, any Shareholder and their respective subsidiaries and has not relied,
and will not at any time rely, on the Security Trustee:-
(1) to provide it with any information relating to the business,
operations, financial condition, prospects, creditworthiness,
status or affairs of the Borrower, any Shareholder or any other
person, whether coming into its possession before or after the
issue of the EDB Guarantee or the making of any Advance; or
(2) to check or enquire into the adequacy, accuracy, completeness or
reasonableness of any representation, warranty, statement,
projection, assumption or information at any time provided by or
on behalf of the Borrower, any Shareholder or any other person
under or in connection with any of the Financing Documents
(whether or not such information has been or is at any time
circulated to it by the Security Trustee); or
(3) to assess or keep under review the business, operations,
financial condition, prospects, creditworthiness, status or
affairs of the Borrower, any Shareholder or any other person.
(G) Indemnity to Security Trustee: To the extent that the Borrower does
not do so on demand or is not obliged to do so, each Bank shall on demand
indemnify the Security Trustee in the proportion borne by the Singapore Dollar
Equivalent of its Outstandings to all the Singapore Dollar Equivalent of the
Outstandings at the relevant time (or, if there are no Outstandings, in the
proportion borne by the Singapore Dollar Equivalent of its Commitment to the
Singapore Dollar Equivalent of the total Commitments) against
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any cost, expense or liability sustained or incurred by the Security Trustee in
complying with any instructions from the Majority Banks or otherwise sustained
or incurred by it in connection with either of the Project Account Charge and
the Trust Deed or its duties, obligations and responsibilities under either of
the Project Account Charge and the Trust Deed, except to the extent that they
are sustained or incurred as a result of the gross negligence or wilful
misconduct of the Security Trustee or any of its personnel or agents.
(H) Retiring Security Trustee: If a successor to the Security Trustee is
appointed under the provisions of the Trust Deed, the retiring Security Trustee
shall remain entitled to the benefit of the provisions of this Clause.
22. SET-OFF AND PRO RATA SHARING
(A) Set-Off: The Borrower authorises any other party to this Agreement to
apply (without prior notice) any credit balance (whether or not then due) to
which it is at any time beneficially entitled on any account at, any sum held to
its order by and/or any liability of, any office of that party in or towards
satisfaction of any sum then due from it to that party under this Agreement and
unpaid and, for that purpose, to convert one currency into another (but so that
nothing in this sub-Clause (A) shall be effective to create a charge). No party
shall be obliged to exercise any of its rights under this sub-Clause (A), which
shall be without prejudice and in addition to any right of set-off, combination
of accounts, lien or other right to which it is at any time otherwise entitled
(whether by operation of law, contract or otherwise).
(B) Pro Rata Sharing: If at any time the proportion received or recovered
(whether by direct payment, by exercise of any right of set-off, combination of
accounts or lien, or otherwise) by any Bank in respect of the total sum which
has become due to it from the Borrower under this Agreement before that time
exceeds the proportion received or recovered by the Bank(s) receiving or
recovering the smallest proportion (if any), then:-
(1) within two Business Days after receiving a request from the
Agent, that Bank shall pay to the Agent an amount equal to the
excess;
(2) the Agent shall distribute that payment as if it were paid by the
Borrower; and
(3) as between the Borrower and the Banks, that excess amount shall
be treated as having been paid to the Banks to which (and in the
proportions in which) it is distributed under paragraph (2),
rather than as having been paid to that Bank.
Within two Business Days after any Bank receives or recovers any such sum
otherwise than by payment through the Agent, that Bank shall notify the Agent of
the amount and currency so received or recovered, how it was received or
recovered and whether it represents principal, interest or other sums. If all or
part of any amount so received or recovered by that Bank has to be refunded by
it (with or without interest), each Bank to whom any part of that amount has
been distributed shall (within two Business Days after receiving a request from
that Bank) in turn pay to that Bank its proportionate share of the amount to be
refunded and of any interest required to be paid by that Bank on that amount in
respect of all or any part of the period from the date of the relevant
distribution to the date of that payment to that Bank.
Any amount received or recovered by a Bank under a novation, assignment,
sub-participation (or the like) shall be ignored for the purpose of this
sub-Clause (B). Furthermore, a Bank shall not be obliged to share any amount
which it has received or recovered as a result of taking legal proceedings with
any other Bank which had an opportunity to participate in those legal
proceedings but did not do so and did not take separate legal proceedings.
This sub-Clause (B) shall apply, with any necessary modifications, to any amount
set-off under sub-Clause (A) by any party to this Agreement in respect of any
sum due to any other party under this Agreement.
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23. EXPENSES AND STAMP DUTY
Whether or not the EDB Guarantee is issued or any Advance is made
under this Agreement, the Borrower shall pay:-
(1) on demand, all costs and expenses (including legal fees and all
goods and services, value added and other duties or taxes payable
on such costs and expenses) reasonably incurred by the Agent
and/or the Arrangers in connection with the preparation,
negotiation or entry into of the Financing Documents and/or any
amendment of, supplement to or waiver in respect of the Financing
Documents;
(2) on demand, all costs and expenses (including legal fees on a full
indemnity basis all goods and services, valued added and other
duties or taxes payable on such costs and expenses) reasonably
incurred by the Agent, the Arrangers or any Bank in protecting or
enforcing any rights under the Financing Documents and/or any
such amendment, supplement or waiver; and
(3) promptly, and in any event before any interest or penalty becomes
payable, any goods and services, value added, stamp, documentary,
registration or similar duty or tax payable in connection with
the entry into, enforcement or admissibility in evidence of the
Financing Documents and/or any such amendment, supplement or
waiver, and shall indemnify the Agent, the Arrangers and the
Banks against any liability with respect to or resulting from any
delay in paying or omission to pay any such duty or tax.
24. CALCULATIONS AND EVIDENCE
(A) Basis of Calculation: All interest (including default interest) and
commitment fee shall accrue from day to day and shall be calculated on the basis
of a year of 360 days and the actual number of days elapsed.
(B) Loan Accounts: The entries made in the accounts maintained by each
Bank in accordance with its usual practice shall be prima facie evidence of the
existence and amounts of the obligations of the Borrower recorded in them.
(C) Certificate Conclusive: A certificate by the Agent, any Arranger, the
Security Trustee or any Lending Bank as to any sum payable to it under this
Agreement, and any other certificate, determination, notification, opinion or
the like of the Agent, any Arranger, the Security Trustee, any Bank or the
Majority Banks provided for in this Agreement, shall be conclusive save for
manifest error.
25. BENEFIT OF AGREEMENT
(A) Benefit and Burden of Agreement: This Agreement shall benefit and be
binding on the parties, any New Lending Bank in respect of which a Transfer
Notice becomes effective in accordance with sub-Clause (C), their respective
assignees and their respective successors. Any reference in this Agreement to
any party shall be construed accordingly.
(B) Borrower: The Borrower may not assign or transfer all or part of its
rights or obligations under this Agreement.
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(C) Banks: (1) Any Lending Bank may at any time transfer all or part of
its Outstandings or all or part of its Term Commitment to any person without the
consent of any party (but such Lending Bank shall give to the Borrower prior
notice of such transfer). Any such transfer shall be made by delivering to the
Agent a duly completed and executed Transfer Notice. On receipt of such a
notice, the Agent shall countersign it for and on behalf of itself and the other
parties to this Agreement and, subject to the terms of that Transfer Notice:-
(a) to the extent that in that Transfer Notice the relevant Lending
Bank seeks to novate its Outstandings and/or its Term Commitment,
the Borrower and that Lending Bank shall each be released from
further obligations to each other and their respective rights
against each other shall be cancelled (such rights and
obligations being referred to as "discharged rights and
obligations");
(b) the Borrower and the relevant New Lending Bank shall each assume
new obligations towards each other and/or acquire new rights
against each other which differ from the discharged rights and
obligations only insofar as the Borrower and that New Lending
Bank have assumed and acquired the same in place of the Borrower
and that Lending Bank; and
(c) the New Lending Bank and the other parties to this Agreement
(other than the Borrower) shall acquire the same rights and
assume the same obligations between themselves as they would have
acquired and assumed had that New Lending Bank been an original
party to this Agreement as a Lending Bank with the rights and/or
obligations acquired or assumed by it as a result of that
novation (and, to that extent, the original Lending Bank and
those other parties shall each be released from further
obligations to each other).
(2) On the date on which a transfer takes effect pursuant to
paragraph (1), the New Lending Bank in respect of such transfer shall pay to the
Agent for its own account a transfer fee of S$500. If any New Lending Bank fails
to pay any transfer fee payable by it under this paragraph (2) on its due date,
the Agent may at any time deduct an amount equal to such fee from any moneys
from time to time held by the Agent for account of such New Lending Bank.
(3) Any Bank may at any time assign all or part of its Outstandings to
any person without the consent of any party (but such Bank shall give to the
Borrower prior notice of such assignment).
(4) The Borrower shall not be liable for any costs or expenses which may
be incurred in connection with any assignment or transfer of the Outstandings or
the Term Commitments.
(D) Disclosure of Information: The Agent, any Arranger, the Security
Trustee or any of the Banks may disclose on a confidential basis to any other
party to the Financing Documents or any of its other branches or its
headquarters or to an actual or potential New Lending Bank, assignee,
sub-participant or the like such information about the Borrower or any other
person as it may think fit and may disclose to any other person such information
about the Borrower with the prior consent in writing of the Borrower (Provided
that, at any time and from time to time after the making of a declaration under
Clause 17(B), (1) no such consent will be required for any such disclosure and
(2) the Agent, the relevant Arranger, the Security Trustee or the relevant Bank
making any such disclosure shall, if practicable, consult with the Borrower
prior to making any such disclosure and shall consider in good faith any request
from the Borrower to the Agent, such Arranger, the Security Trustee or such Bank
not to make any such disclosure or to delay making any such disclosure).
(E) Limitation on Certain Obligations of Borrower: If, at the time of any
assignment or transfer by a Lending Bank, circumstances exist which would oblige
the Borrower to pay to the New Lending Bank under Clause 11(B) or 12(B) any sum
in excess of the sum (if any) which it would have been obliged to pay
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to that Lending Bank under the relevant Clause in the absence of that assignment
or transfer, the Borrower shall not be obliged to pay that excess.
26. REMEDIES, WAIVERS, AMENDMENTS AND CONSENTS
(A) No Implied Waivers: No failure on the part of the Agent,
any Arranger, the Security Trustee or any Bank to exercise, and no delay on its
part in exercising, any right or remedy under this Agreement will operate as a
waiver thereof, nor will any single or partial exercise of any right or remedy
preclude any other or further exercise thereof or the exercise of any other
right or remedy. The rights and remedies provided in this Agreement are
cumulative and not exclusive of any other rights or remedies (whether provided
by law or otherwise).
(B) Amendments, Waivers and Consents: Any provision of this
Agreement may be amended or supplemented only if the Borrower and the Majority
Banks so agree in writing and any Event of Default, Potential Event of Default,
provision or breach of any provision of this Agreement may be waived before or
after it occurs only if the Majority Banks so agree in writing but:-
(1) an amendment, supplement or waiver which puts one or
more Banks in a better or worse position than one or
more other Banks or changes or relates to (a) the
amount of the Available Facility or any Bank's
Commitment or Available Term Commitment, (b) the
Commitment Termination Date, (c) the amount or currency
of the Advances, (d) the amount or date of any
repayment instalment, (e) the length of Interest
Periods, (f) the rate or dates of payment of interest,
(g) the amount or date(s) of payment of any fee payable
under Clause 10, (h) the currency of any payment,
(i) the definition of "Majority Banks", (j) this
sub-Clause (B) or (k) any Clause which by its terms
requires the consent of all the Banks, shall require
the agreement of all the Banks and (in the case of an
amendment or supplement) the Borrower also; and
(2) an amendment, supplement or waiver which changes or
relates to the rights and/or obligations of the
Agent, the Security Trustee or any Arranger shall
require its agreement also.
Any consent by the Agent, any Arranger, the Security Trustee, any Bank or the
Majority Banks under any provision of this Agreement must also be in writing.
Any such waiver or consent may be given subject to any conditions thought fit by
the person giving it and shall be effective only in the instance and for the
purpose for which it is given.
27. COMMUNICATIONS
(A) Addresses: Each communication under this Agreement shall be
made by fax, telex or otherwise in writing. Each communication or document to
be delivered to any party under this Agreement shall be sent to that party at
the fax number, telex number or address, and marked for the attention of the
person (if any), from time to time designated by that party to the Agent (or,
in the case of the Agent, by it to each other party) for the purpose of this
Agreement. The initial fax number, telex number, address and person (if any) so
designated by each party are set out under its name at the end of this
Agreement. Any communication or document from or to the Borrower under this
Agreement shall be sent to, by or through the Agent.
(B) Deemed Delivery: Any communication from the Borrower shall be
irrevocable, and shall not be effective until received by the Agent. Any other
communication from one party to another party shall be deemed to be received by
such other party (if sent by fax or telex) on the day of despatch or (in any
other case) when left at the address required by sub-Clause (A) or within two
days after being sent by prepaid post addressed to it at that address.
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28. PARTIAL INVALIDITY
The illegality, invalidity or unenforceability of any
provision of this Agreement under the law of any jurisdiction shall not affect
its legality, validity or enforceability under the law of any other jurisdiction
nor the legality, validity or enforceability of any other provision.
29. NATURE OF RIGHTS AND OBLIGATIONS
(A) Liability Several: The liability of the Banks is several. No
party to this Agreement shall be responsible for the obligations of any other
party. The failure of a Bank to perform its obligations shall not release any
other party from its obligations.
(B) Rights Several: The rights of the Banks are also several. The
amount at any time owing by the Borrower to any party under this Agreement
shall be a separate and independent debt from the amount owing to any other
party. Each party shall have the right to protect and enforce its rights
arising out of this Agreement and it shall not be necessary for any Arranger,
the Agent, the Security Trustee or any Bank to be joined as an additional party
in any proceedings for this purpose.
30. GOVERNING LAW
This Agreement shall be governed by, and construed in
accordance with, the laws of Singapore.
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S C H E D U L E 1
BANKS AND COMMITMENTS
Part A - Guarantor Banks and Guarantee Commitments
GUARANTOR BANK GUARANTEE COMMITMENT
-------------- --------------------
ABN AMRO Bank, N.V.,
Singapore Branch S$37,400,000
Bayerische Landesbank Girozentrale,
Singapore Branch S$37,400,000
Citibank, N.A.,
Singapore S$37,400,000
Overseas Union Bank Limited S$40,700,000
The Sumitomo Bank, Limited,
Singapore Branch S$37,400,000
The Sanwa Bank Limited,
Singapore Branch S$16,500,000
The Bank of Tokyo-Mitsubishi, Ltd.,
Singapore Branch S$15,000,000
Danske A/S
(formerly known as Den Danske Bank Aktieselskab,
Singapore Branch) S$15,000,000
-------------
S$236,800,000
=============
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Part B - Lending Banks and Term Commitments
LENDING BANK TERM COMMITMENT
------------ ---------------
ABN AMRO Bank, N.V.,
Singapore Branch US$24,000,000
Bayerische Landesbank Girozentrale,
Singapore Branch US$24,000,000
Citibank, N.A.,
Singapore US$24,000,000
Overseas Union Bank Limited US$28,400,000
The Sumitomo Bank, Limited,
Singapore Branch US$24,000,000
The Bank of Tokyo-Mitsubishi, Ltd.,
Singapore Branch US$8,800,000
Danske Bank A/S
(formerly known as Den Danske Bank Aktieselskab,
Singapore Branch) US$10,000,000
--------------
US$143,200,000
==============
▇▇
▇▇
▇ ▇ ▇ ▇ ▇ U L E 2
FORM OF TRANSFER NOTICE
To: ABN AMRO Bank N.V.,
Singapore Branch,
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Attention: [name and title of relevant person]
Chartered Silicon Partners Pte Ltd
Credit Agreement
dated 12th March, 1998 as supplemented by
the First Supplemental Agreement dated 14th December, 1998,
the Second Supplemental Agreement dated 9th November, 1999 and
the Third Supplemental Agreement dated [ ], 2000
1. This Transfer Notice relates to the above Credit Agreement.
Terms defined in the Credit Agreement have the same meaning in this Transfer
Notice.
2. The undersigned Existing Lending Bank confirms that, to the
extent details appear below under the heading "Rights and/or Obligations to be
Transferred", those details accurately summarise the rights and/or obligations
which are to be novated and which are, upon delivery of this Transfer Notice to
the Agent (but subject to 3 below), cancelled and discharged in accordance
with Clause 25(C) of the Credit Agreement.
3. The undersigned New Lending Bank agrees that it assumes and
acquires new rights and/or obligations in accordance with Clause 25(C) of the
Credit Agreement on and with effect from [ ], 19[ ] [subject only to the
Agent's having received tested telex confirmation from [ ] that the sum of
[ ] has been credited to the Existing Lending Bank's account with [ ]
for value that date].
4. The undersigned New Lending Bank:-
(1) confirms that, until further notice, its lending office
and details for communications are as set out below;
(2) agrees to perform and comply with the obligations
expressed to be imposed on it by Clause 25(C) of the
Credit Agreement as a result of this Transfer Notice
taking effect; and
(3) if not already a Lending Bank, appoints the Agent to
act as its agent as provided in the Credit Agreement
and agrees to be bound by the Credit Agreement
(including, but not limited to, Clause 20 and
particularly, but not limited to, Clauses 20(E), (G)
and (H)).
5. The above confirmations and agreements are given to and for the
benefit of and made with each of the other parties to the Credit Agreement.
6. This Transfer Notice shall be governed by, and construed in
accordance with, the laws of Singapore.
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64
Existing Lending Bank
Name:
By:
Authorised Signatory
Date: 19
New Lending Bank
Name:
By:
Authorised Signatory
Date: 19
Lending Office
Address:
Fax Number:
Telex Number:
Attention:
Rights and/or Obligations to be Transferred
1. Existing Lending Bank's Term Commitment to be novated:
2. Existing Lending Bank's Outstandings to be novated:
Agent
Agreed for and on behalf of itself as Agent and the other parties to the Credit
Agreement.
Name:
By:
Authorised Signatory
Date: 19
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S C H E D U L E 3
CONDITIONS PRECEDENT
1. A certified copy of each of (1) the certificate of
incorporation of the Borrower, (2) the Memorandum and Articles of Association
of the Borrower, (3) the certificate of incorporation (or equivalent) of each
Shareholder and (4) the Memorandum and Articles of Association (or equivalent)
of each Shareholder.
2. A copy, certified true by an authorised officer of the Borrower
as being in full force and effect on the date thereof, of:-
(1) all actions required to be taken by the Borrower (a)
authorising the entry into of the Financing Documents
and (b) authorising appropriate persons to execute
and deliver the Financing Documents on behalf of the
Borrower and to take any action contemplated in the
Financing Documents; and
(2) all necessary consents required by the Borrower for
the execution, delivery and performance of the
Financing Documents or, if no such consents are
necessary, a certificate to that effect from a person
duly authorised by the Borrower so to certify.
3. Specimen signatures of the respective persons referred to in
paragraph 2 above, duly certified, together with certificates of incumbency,
also duly certified, in respect of each such person.
4. A copy, certified true by an authorised officer of each
Shareholder as being in full force and effect on the date thereof, of:-
(1) all actions required to be taken by that Shareholder
(a) authorising the entry into of the Shareholders
Undertaking and (b) authorising appropriate persons
to execute and deliver the Shareholders Undertaking
on behalf of that Shareholder and to take any action
contemplated in the Shareholders Undertaking; and
(2) all necessary consents required by that Shareholder
for the execution, delivery and performance of the
Shareholders Undertaking or, if no such consents are
necessary, a certificate to that effect from a person
duly authorised by that Shareholder so to certify.
5. Specimen signatures of the respective persons referred to in
paragraph 4 above, duly certified, together with certificates of incumbency,
also duly certified, in respect of each such person.
6. A certified copy of the following consents for the Project:-
(1) the permission to carry out earthworks from the Urban
Renewal Authority; and
(2) the permit for the commencement of piling, the notice
of approval - sub-structure, the notice of approval -
super-structure and the permit for commencement of
building work from the Building Control Department.
7. The Shareholders Undertaking duly executed by the Shareholders,
the Borrower and the Agent.
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66
8. Evidence of the acceptance by the process agent appointed in
Clause 14(E) of the Shareholders Undertaking of its appointment as such for the
purpose of the Shareholders Undertaking.
9. Legal opinions dated on or after the date of this Agreement
from:-
(1) ▇▇▇▇▇ Dutilh, legal advisers in the Netherlands to
the Agent, the Arrangers and the Banks, as to such
matters of the laws of the Netherlands relevant to
the Shareholders Undertaking as the Agent may
request; and
(2) ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, legal advisers in Singapore to the
Agent, the Arrangers and the Banks, as to such
matters of Singapore law relevant to the Financing
Documents as the Agent may request.
10. The completed Drawdown Schedule (the particulars of which must
be acceptable to the Agent).
11. A certified copy of the Joint Venture Agreement.
12. A certified copy of the letter of undertaking dated 13th March,
1997 issued by HP to CSM and EDBI for the obligations of HPE under the Joint
Venture Agreement.
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S C H E D U L E 4
FORM OF REQUEST FOR ISSUE OF EDB GUARANTEE
To: ABN AMRO Bank N.V.,
Singapore Branch,
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
For the attention of: [name and title of relevant person]
Dear Sirs,
Chartered Silicon Partners Pte Ltd
Credit Agreement
dated 12th March, 1998 as supplemented by
the First Supplemental Agreement dated 14th December, 1998,
the Second Supplemental Agreement dated 9th November, 1999 and
the Third Supplemental Agreement dated [ ], 2000
We refer to the above Credit Agreement between (1) ourselves,
as Borrower, (2) yourselves, Bayerische Landesbank Girozentrale, Singapore
Branch, Citibank, N.A., Overseas Union Bank Limited and The Sumitomo Bank,
Limited, Singapore Branch, as Arrangers, (3) the Guarantor Banks named therein,
as Guarantor Banks, (4) the Lending Banks named therein, as Lending Banks, (5)
yourselves, as Agent, and (6) yourselves, as Security Trustee. Terms defined in
the Credit Agreement have the same meaning in this notice.
We give you notice that we request the EDB Guarantee to be
issued by the Guarantor Banks under the Credit Agreement as follows:-
(1) Amount: S$
(2) Issue Date: , 19 (or, if that is not a
Singapore Business Day, the next succeeding
Singapore Business Day)
(3) Expiry Date:
We confirm that no Event of Default or Potential Event of
Default has occurred or will occur as a result of the issue of the EDB Guarantee
we represent and warrant that the representations and warranties contained in
Clause 14 of the Credit Agreement have been complied with and would be correct
in all respects if repeated today by reference to the circumstances now existing
and we confirm that all the undertakings on our part contained in Clauses 15 and
16 of the Credit Agreement have been fully performed and observed by us.
Dated , 1998.
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Yours faithfully,
For and on behalf of
CHARTERED SILICON PARTNERS PTE LTD
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
▇▇
▇▇
▇ ▇ ▇ ▇ ▇ U L E 5
FORM OF REQUEST FOR ADVANCE
To: ABN AMRO Bank N.V.,
Singapore Branch,
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
For the attention of: [name and title of relevant person]
Dear Sirs,
Chartered Silicon Partners Pte Ltd
Credit Agreement
dated 12th March, 1998 as supplemented by
the First Supplemental Agreement dated 14th December, 1998,
the Second Supplemental Agreement dated 9th November, 1999 and
the Third Supplemental Agreement dated [ ], 2000
We refer to the above Credit Agreement between (1) ourselves,
as Borrower, (2) yourselves, Bayerische Landesbank Girozentrale, Singapore
Branch, Citibank, N.A., Overseas Union Bank Limited and The Sumitomo Bank,
Limited, Singapore Branch, as Arrangers, (3) the Guarantor Banks named therein,
as Guarantor Banks, (4) the Lending Banks named therein, as Lending Banks, (5)
yourselves, as Agent, and (6) yourselves, as Security Trustee. Terms defined in
the Credit Agreement have the same meaning in this notice.
We give you notice that we request an Advance to be made to us
under the Credit Agreement as follows:-
(1) Amount: US$
(2) Date of Advance: , 19 (or, if that is
not a Business Day, the next
succeeding Business Day)
We confirm that no Event of Default or Potential Event of
Default has occurred or will occur as a result of the making of the above
Advance, we represent and warrant that the representations and warranties
contained in Clause 14 of the Credit Agreement have been complied with and
would be correct in all respects if repeated today by reference to the
circumstances now existing and we confirm that all the undertakings on our part
contained in Clauses 15 and 16 of the Credit Agreement have been fully
performed and observed by us.
You are requested to make the proceeds of this Advance
available to us by credit to our account with [details of bank account] in New
York City.
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Dated , 19 .
Yours faithfully,
For and on behalf of
CHARTERED SILICON PARTNERS PTE LTD
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
▇▇
▇▇
▇ ▇ ▇ ▇ ▇ U L E 6
FORM OF DRAWDOWN SCHEDULE
(1) (2) (3)
UTILISATION PERIOD AVAILABLE EDB AMOUNT AVAILABLE TERM AMOUNT
------------------ -------------------- ---------------------
(1) 1st July, 1998 to S$0 US$18,750,000
30th September, 1998
(2) 1st October, 1998 to S$10,000,000 US$53,130,000
31st December, 1998
(3) 1st January, 1999 to S$20,000,000 US$18,750,000
31st March, 1999
(4) 1st April, 1999 to S$65,000,000 US$31,250,000
30th June, 1999
(5) 1st July, 1999 to S$110,000,000 US$21,320,000
30th September, 1999
(6) 1st October, 1999 to S$31,800,000 US$0
31st December, 1999
(7) 1st January, 2000 to
31st March, 2000 S$0 US$0
(8) 1st April, 2000 to
30th June, 2000 S$0 US$0
(9) 1st July, 2000 to
30th September, 2000 S$0 US$0
-------------
S$236,800,000
=============
(10) 1st October, 2000 to
31st December, 2000 US$0
---------------
US$143,200,000"
===============
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A P P E N D I X A
FORM OF EDB GUARANTEE
To: Economic Development Board
1. We refer to an EDB Loan Agreement (the "EDB Loan Agreement")
dated [ ], 1998 made between yourselves and Chartered Silicon Partners Pte Ltd
(the "Borrower") pursuant to which you have agreed to make available to the
Borrower a loan facility in an aggregate amount not exceeding S$450,000,000.
2. In consideration of your agreeing subject, inter alia, to the
delivery of this Guarantee to enter into and accept liabilities under the EDB
Loan Agreement and subject to the due observance of the provisions of Clause 5
of the EDB Loan Agreement, we, the Guarantor Banks whose names appear in the
signature pages hereto unconditionally and irrevocably:-
(1) guarantee the payment by the Borrower of each amount
which may from time to time fall due to yourselves from
the Borrower in respect of:-
(a) payments of principal advanced under the EDB
Loan Agreement up to a maximum aggregate
amount at any time equal to the Maximum
Principal Liability (as defined below) at
that time;
(b) payments of interest under Clause 7.2 of the
EDB Loan Agreement but not including default
interest under Clause 7.5 of the EDB Loan
Agreement, up to a maximum aggregate amount
at any time being the lesser of six months
interest and the Maximum Interest Liability
(as defined below) at that time; and
(c) payments of default interest under Clause
7.5 of the EDB Loan Agreement, up to a
maximum aggregate amount at any time equal
to the Maximum Default Interest Liability
(as defined below) at that time,
and agree to pay to yourselves, within three Business
Days (as such term is defined in the EDB Loan
Agreement) of demand by yourselves, unless such
demand is made on a day which is not a business day
or after 12.00 noon on any Business Day, in which
event payment shall be made within three Business
Days from the next immediately succeeding Business
Day:-
(i) any and every sum or sums of money which the
Borrower shall at any time be liable to pay
to yourselves under or pursuant to the EDB
Loan Agreement by way of principal and shall
fail to pay on the due date therein provided
up to the Maximum Principal Liability at
that time;
(ii) any and every sum or sums which the Borrower
shall at any time be liable to pay to
yourselves under or pursuant to Clause 7.2
of the EDB Loan Agreement by way of interest
(but excluding default interest under Clause
7.5 thereof), and shall fail to pay on the
due date therein provided up to the lesser
of six months interest and the Maximum
Interest Liability at that time; and
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73
(iii) any and every sum or sums which the Borrower
shall at any time be liable to pay to
yourselves under or pursuant to the EDB Loan
Agreement by way of default interest under
Clause 7.5 thereof, and shall fail to pay on
the due date therein provided up to the
Maximum Default Interest Liability at that
time; and
(2) agree as a primary obligation to indemnify yourselves
on demand from and against any loss, cost or expense
incurred by yourselves as a result of the obligations
guaranteed pursuant hereto being or becoming void,
voidable, unenforceable or ineffective for any reason
whatsoever, whether or not known to yourselves, the
amount of such loss being the amount which you would
otherwise have been entitled to recover from
ourselves.
3. The liability of each of us in respect of any sum at any time
due to you hereunder is several and shall be limited to the fraction of such
sum which appears opposite our respective names in Schedule 1 hereto.
4. The total amount at any time payable by us hereunder shall not
exceed the Maximum Aggregate Liability (as defined below) at that time.
Notwithstanding the foregoing, the total amount at any time payable by us
hereunder in respect of interest under Clause 7.2 of the EDB Loan Agreement
shall not exceed the lesser of six months interest and the Maximum Interest
Liability at that time, the total amount at any time payable by us hereunder in
respect of default interest under Clause 7.5 of the EDB Loan Agreement shall
not exceed the Maximum Default Interest Liability at that time and the total
amount at any time payable by us hereunder in respect of principal shall not
exceed the Maximum Principal Liability at that time, Provided that this
Guarantee shall not extend to any advances made by yourselves to the Borrower at
any time after you have received notice from ABN AMRO Bank N.V., Singapore
Branch (the "Agent") of the occurrence of an Event of Default (as defined in the
Credit Agreement dated 12th March, 1998 made between (1) the Borrower, as
borrower, (2) the Arrangers named therein, as arrangers, (3) ourselves, as
guarantor banks, (4) the Lending Banks named therein, as lending banks, and (5)
the Agent, as agent).
5. In this Guarantee:-
"Maximum Aggregate Liability" means, at any time during a
Relevant Period, the amount specified against that Relevant
Period in column (2) of Schedule 2 hereto;
"Maximum Interest Liability" means, at any time during a
Relevant Period, the amount specified against that Relevant
Period in column (3) of Schedule 2 hereto;
"Maximum Default Interest Liability" means, at any time during
a Relevant Period, the amount specified against that Relevant
Period in column (4) of Schedule 2 hereto;
"Maximum Principal Liability" means, at any time during a
Relevant Period, the amount specified against that Relevant
Period in column (5) of Schedule 2 hereto; and
"Relevant Periods" means each of the periods specified as a
Relevant Period in column (1) of Schedule 2 hereto.
6. We each represent and warrant that we have full power to enter
into this Guarantee and have taken all necessary steps to authorise its
execution on our behalf and have obtained all necessary governmental and other
consents required to enable us each to perform our obligations hereunder and
that this Guarantee is legal, valid and binding on each of us.
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7. This Guarantee shall be a continuing security and accordingly
(1) shall extend to cover the balance of principal due at any time from the
Borrower to you and (2) shall not be discharged by any intermediate payment or
settlement of account between the Borrower and yourselves.
8. (1) If any sum due and payable by any of us hereunder or under any
order or judgment given or made in relation hereto has to be converted from the
currency (the "First Currency") in which the same is payable hereunder or under
such order or judgment into another currency (the "Second Currency") for the
purpose of (a) making or filing a claim or proof against us whether in our
liquidation or otherwise, (b) obtaining an order or judgment in any court or
other tribunal or (c) enforcing any order or judgment given or made in relation
hereto, that such of us that is so obliged to pay such sum shall indemnify and
hold harmless each of the persons to whom such sum is due and payable from and
against any loss suffered as a result of any discrepancy between (i) the rate
of exchange used for such purpose to convert the sum in question from the First
Currency into the Second Currency and (ii) the rate or rates of exchange at
which such person may in the ordinary course of business purchase the First
Currency with the Second Currency upon receipt by it of a sum paid to it in
satisfaction, in whole or in part, of any such order, judgment, claim or proof.
(2) The foregoing indemnity shall constitute a separate obligation
distinct from our other respective obligations hereunder and shall survive the
giving or making of any order or judgment in relation to all or any of such
other obligations.
9. Each time you make an advance to the Borrower pursuant to the
provisions of the EDB Loan Agreement or receive a repayment or prepayment of
principal thereunder, upon request by the Borrower, you shall notify us in
writing of the principal amount and date of such advance or, as the case may
be, repayment or prepayment, and of the then revised outstanding balance of
principal. We hereby agree that a certificate from yourselves as to the amount
due from the Borrower by way of principal or interest under the EDB Loan
Agreement at the date of such certificate shall, in the absence of manifest
error, be conclusive and binding on us for all purposes and we further agree to
cause the Agent to promptly notify you of the occurrence of any Event of
Default under the Credit Agreement whereby the Advances made thereunder are
declared immediately due and payable.
10. Any demand to be made on us hereunder shall be made by telex or
letter to our agent, ABN AMRO Bank N.V., Singapore Branch (the "Agent"), at ▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Telex Number RS 24396 and shall specify whether
such demand is made in respect of principal or interest and, if both, the
respective amounts of such claim and, where such demand is made in respect of
interest, the period in respect of which such claim is made. Such demand shall
also specify, if relevant, the provision of Clause 15.2 pursuant to which
indebtedness under the EDB Loan Agreement was accelerated. You shall be
entitled to make any number of demands on us hereunder.
11. This Guarantee shall remain in full force and effect until the
earlier of (1) the date on which you certify that there is no amount owing, due
or payable by the Borrower to yourselves by way of principal under the EDB Loan
Agreement and no amounts of interest accrued but unpaid, a copy of which
certification shall be sent to the Agent, and (2) 30th June, 2006 or, if such
day is not a Business Day, the immediately preceding Business Day.
12. This Guarantee may be executed by each party hereto on separate
counterparts, each of which shall be binding on such party and all of which
shall constitute one and the same document.
13. This Guarantee shall be governed by, and construed in accordance
with, the laws of Singapore.
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I N W I T N E S S W H E R E O F this Guarantee has been
entered into on , 1998.
ABN AMRO BANK N.V., SINGAPORE BRANCH,
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
BAYERISCHE LANDESBANK GIROZENTRALE, SINGAPORE BRANCH
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
CITIBANK, N.A., SINGAPORE
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
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OVERSEAS UNION BANK LIMITED,
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
THE SUMITOMO BANK, LIMITED,
SINGAPORE BRANCH,
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
THE SANWA BANK LIMITED, SINGAPORE BRANCH
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
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THE BANK OF TOKYO-MITSUBISHI, LTD.,
SINGAPORE BRANCH
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
DEN DANSKE BANK AKTIESELSKAB,
SINGAPORE BRANCH
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
▇▇
▇▇
▇ ▇ ▇ ▇ ▇ U L E 1
GUARANTOR BANK FRACTION
-------------- ----------
(1) ABN Amro Bank N.V.,
Singapore Branch 37.4/236.8
(2) Bayerische Landesbank Girozentrale,
Singapore Branch 37.4/236.8
(3) Citibank, N.A.,
Singapore 37.4/236.8
(4) Overseas Union Bank Limited 40.7/236.8
(5) The Sumitomo Bank, Limited,
Singapore Branch 37.4/236.8
(6) The Sanwa Bank Limited,
Singapore Branch 16.5/236.8
(7) The Bank of Tokyo-Mitsubishi, Ltd.,
Singapore Branch 15/236.8
(8) Den Danske Bank Aktieselskab,
Singapore Branch 15/236.8
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S C H E D U L E 2
=======================================================================================================================
MAXIMUM AGGREGATE MAXIMUM INTEREST MAXIMUM DEFAULT MAXIMUM PRINCIPAL
RELEVANT PERIOD LIABILITY LIABILITY INTEREST LIABILITY LIABILITY
-----------------------------------------------------------------------------------------------------------------------
Date of first advance under
the EDB Loan Agreement to X*
236,800,000 4,796,023 6,308,774 225,695,203
-----------------------------------------------------------------------------------------------------------------------
X + 1 day
to X + six months 213,366,365 4,556,222 5,684,460 203,125,683
-----------------------------------------------------------------------------------------------------------------------
X + six months + 1 day to X
+ 12 months 189,686,366 4,076,620 5,053,583 180,556,163
-----------------------------------------------------------------------------------------------------------------------
X + 12 months + 1 day to X
+ 18 months 166,006,365 3,597,017 4,422,705 157,986,643
-----------------------------------------------------------------------------------------------------------------------
X + 18 months + 1 day to X
+ 24 months 142,326,366 3,117,415 3,791,828 135,417,123
-----------------------------------------------------------------------------------------------------------------------
X + 24 months + 1 day to X
+ 30 months 118,646,367 2,637,813 3,160,951 112,847,603
-----------------------------------------------------------------------------------------------------------------------
X + 30 months + 1 day to X
+ 36 months 94,966,366 2,158,210 2,530,073 90,278,083
-----------------------------------------------------------------------------------------------------------------------
X + 36 months + 1 day to X
+ 42 months 71,286,367 1,678,608 1,899,196 67,708,563
-----------------------------------------------------------------------------------------------------------------------
X + 42 months + 1 day to X
+ 48 months 47,606,367 1,199,006 1,268,318 45,139,043
-----------------------------------------------------------------------------------------------------------------------
X + 48 months + 1 day to
earlier of (X + 54 months and
=======================================================================================================================
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=======================================================================================================================
MAXIMUM AGGREGATE MAXIMUM INTEREST MAXIMUM DEFAULT MAXIMUM PRINCIPAL
RELEVANT PERIOD LIABILITY LIABILITY INTEREST LIABILITY LIABILITY
-----------------------------------------------------------------------------------------------------------------------
30th June, 2006) 23,926,368 719,404 637,441 22,569,523
-----------------------------------------------------------------------------------------------------------------------
=======================================================================================================================
------------
* "X" means the date of the first repayment of principal under the EDB Loan
Agreement (being not later than 31st March, 2002).
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A P P E N D I X B
FORM OF SHAREHOLDERS UNDERTAKING
DATED [ ]
CHARTERED SILICON PARTNERS PTE LTD
as Borrower
AGILENT TECHNOLOGIES EUROPE B.V.
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
EDB INVESTMENTS PTE LTD
as Shareholders
- and -
ABN AMRO BANK N.V., SINGAPORE BRANCH
as Agent
-----------------------------------------------
SHAREHOLDERS UNDERTAKING
------------------------------------------------
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, #▇▇-▇▇,
▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
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C O N T E N T S
CLAUSE HEADING PAGE
------ ------- ----
1. INTERPRETATION 93
2. UNDERTAKINGS BY SHAREHOLDERS 95
3. SUBORDINATION 96
4. AGREEMENT BY BORROWER AND SHAREHOLDERS 97
5. REPRESENTATIONS AND WARRANTIES 98
6. UNDERTAKINGS 101
7. PAYMENTS 103
8. NATURE OF RIGHTS AND OBLIGATIONS 104
9. EXPENSES 106
10. BENEFIT OF AGREEMENT 106
11. WAIVERS 107
12. COMMUNICATIONS 107
13. PARTIAL INVALIDITY 108
14. GOVERNING LAW AND JURISDICTION 108
APPENDIX -- INFORMATION PACK
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T H I S A G R E E M E N T is originally made on [ ], 1998
B E T W E E N:-
(1) CHARTERED SILICON PARTNERS PTE LTD (the "Borrower");
(2) AGILENT TECHNOLOGIES EUROPE B.V. ("ATE"), CHARTERED SEMICONDUCTOR
MANUFACTURING LTD ("CSM") and EDB INVESTMENTS PTE LTD ("EDBI"); and
(3) ABN AMRO BANK N.V., SINGAPORE BRANCH, as agent for and on behalf of
the Banks defined below (in such capacity, the "Agent", which
expression shall include any of its successors in such capacity).
W H E R E A S:-
(A) By a Credit Agreement (the Credit Agreement as amended by the First
Supplemental Agreement (as defined below), the Second Supplemental Agreement (as
defined below) and the Third Supplemental Agreement (as defined below),
collectively, the "Credit Agreement") dated 12th March, 1998 made between (1)
the Borrower, as borrower, (2) ABN AMRO Bank N.V., Singapore Branch, Bayerische
Landesbank Girozentrale, Singapore Branch, Citibank, N.A., Singapore Branch,
Overseas Union Bank Limited and The Sumitomo Bank, Limited, Singapore Branch, as
arrangers, (3) the Guarantor Banks named therein (the "Guarantor Banks"), as
guarantor banks, (4) the Lending Banks named therein (the "Lending Banks"), as
lending banks, (5) the Agent, as agent, and (6) ABN AMRO Bank N.V., Singapore
Branch (the "Security Trustee"), as security trustee, the Guarantor Banks agreed
to grant to the Borrower a S$236,800,000 guarantee facility and the Lending
Banks agreed to grant to the Borrower a US$143,200,000 term loan facility, upon
the terms and subject to the conditions of the Credit Agreement.
(B) (1) CSM is the legal and beneficial owner of 51 per cent. of the issued
shares in the capital of the Borrower.
(2) EDBI is the legal and beneficial owner of 19 per cent. of the issued
shares in the capital of the Borrower.
(3) On 9th November, 1999, ATE will be 100 per cent. legally and
beneficially owned by Hewlett-Packard World Trade, Inc ("HPWT") which is in turn
100 per cent. legally and beneficially owned by Hewlett-Packard Company ("HP").
On 11th November, 1999, ATE will be 100 per cent. legally and beneficially owned
by Agilent Technologies World Trade, Inc. ("ATWT") which will be 100 per cent.
legally and beneficially owned by HPWT and pursuant to a transfer on the same
day ATWT will then be 100 per cent. owned by HP. On 15th November, 1999, ATE
will be 100 per cent. legally and beneficially owned by ATWT, which will be 100
per cent. owned by Agilent Technologies, Inc. ("ATI") which in turn will be
owned 100 per cent. legally and beneficially by HP, thereafter HP will own
between 80 to 85 per cent. of ATI and cease to own any ATI share by May 2000.
ATE is or will be the legal and beneficial owner of 30 per cent. of the issued
shares in the capital of the Borrower.
(C) Each of the Shareholders (as defined below) (after giving due
consideration to the terms and conditions of the Credit Agreement and satisfying
itself that there are reasonable grounds for believing that the entry into by it
of this Agreement will benefit it) has agreed to enter into this Agreement and
give the undertakings provided in this Agreement in consideration of the
Guarantor Banks making available to the Borrower the guarantee facility referred
to in Recital (A) above and the Lending Banks making available to the Borrower
the term loan facility referred to in Recital (A) above.
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I T I S A G R E E D as follows:-
1. INTERPRETATION
(A) Definitions: In this Agreement, except to the extent that the context
requires otherwise:-
"Agent" includes its successors in title and assigns and any company with
which it may amalgamate and all other persons for the time being the agent
for the Banks under this Agreement;
"ATI Entities" means ATI or any corporation which is at least 99 per cent.
owned (whether directly or indirectly) by ATI;
"Banks" means the Guarantor Banks and the Lending Banks (and includes their
respective successors and assigns);
"Completion" means the physical completion of the Plant (which shall be
evidenced by the grant of the temporary occupation permit for the Plant
pursuant to the Building Control Act, Chapter 29 of Singapore) and the
commencement of commercial production by the Plant (which shall be the date
on which the Plant achieves a production rate of an aggregate of 2,000
wafers start per month);
"Discharge Date" means the date on which the Senior Indebtedness has been
discharged in full and on which the Borrower and the Shareholders cease to
be under any liability to the Agent and the Banks under or in connection
with the Financing Documents;
"Equity Commitment Percentage" means:-
(1) in relation to CSM, 51/100;
(2) in relation to EDBI, 19/100; and
(3) in relation to ATE, 30/100;
"Excluded Transaction" means any genuine and good faith commercial
transaction entered into between the Borrower and any one or more of the
Shareholders which is not primarily financial in nature and is contemplated
under the Joint Venture Agreement;
"First Supplemental Agreement" means the first supplemental agreement dated
14th December, 1998 between the parties to the Credit Agreement, being
supplemental to the Credit Agreement;
"Information Pack" means the HP/Agilent Re-structuring Information Pack,
substantially in the form of the Appendix;
"Joint Venture Agreement" has the meaning ascribed to it in Clause 1(A) of
the Credit Agreement;
"Scheduled Completion Date" means 31st December, 2000;
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"Second Supplemental Agreement" means the second supplemental agreement
dated 4th November, 1999 between the parties to the Credit Agreement, being
supplemental to the Credit Agreement as supplemented by the First
Supplemental Agreement;
"Senior Indebtedness" means all sums (whether principal, interest, fee or
otherwise) which are or at any time may be or become due from or owing by
the Borrower to the Agent and/or the Banks (or any of them), whether
actually or contingently, under or in connection with, or which the
Borrower has covenanted to pay or discharge under or pursuant to, any of
the Financing Documents (which, for your avoidance of doubt, excludes the
Phase 2 Financing Documents (as defined in the Trust Deed));
"Shareholder Funding" means:-
(1) subscription moneys paid by any Shareholder for shares in the Borrower
for which that Shareholder has subscribed (and which have not been
returned to that Shareholder); or
(2) loans made by any Shareholder to the Borrower which are subordinated
to the Senior Indebtedness in accordance with this Agreement;
"Shareholders" means ATE, CSM and EDBI (and includes their respective
successors and permitted assignees and transferees);
"Subordinated Indebtedness" means all sums made or to be made available by
the Shareholders (or any of them) to the Borrower under or in connection
with this Agreement (including, without limitation, under Clause 2);
"Termination Date" means, in relation to a Shareholder, the earlier of (1)
the date on which that Shareholder has fulfilled all its obligations under
Clause 2(A) and (2) the date on which all Shareholder Funding provided by
it, if any, in accordance with this Agreement has been converted into
shares in the capital of the Borrower;
"Third Supplemental Agreement" means the third supplemental agreement dated
[ ], 2000 between the parties to the Credit Agreement, being supplemental
to the Credit Agreement as supplemented by the First Supplemental Agreement
and the Second Supplemental Agreement;
"Total Indebtedness" means, at any particular time, all sums (whether
principal, interest, fee or otherwise) which are then due from or owing by
the Borrower to the Agent and the Banks, whether actually or contingently,
under or in connection with, any of the Financing Documents (which, for the
avoidance of doubt, excludes the Phase 2 Financing Documents (as defined in
the Trust Deed)) to which the Borrower is a party; and
"Trust Deed" means the trust deed dated 28th September, 2000 made between
(1) the Borrower and (2) the Security Trustee.
(B) Construction: All terms and references used in this Agreement and which
are defined or construed in the Credit Agreement but are not defined or
construed in this Agreement shall have the same meaning and construction in this
Agreement. The provisions of Clause 1(C) of the Credit Agreement shall apply to
this Agreement as though they are set out in full in this Agreement (mutatis
mutandis) except that references to the Credit Agreement are to be construed as
references to this Agreement. All references in this Agreement to a
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Financing Document include that Financing Document as amended, modified or
supplemented from time to time and any document which amends, modifies or
supplements that Financing Document.
(C) Miscellaneous: The headings in this Agreement are inserted for convenience
only and shall be ignored in construing this Agreement. Unless the context
otherwise requires, words denoting the singular number only shall include the
plural and vice versa. References to "Clauses" are to be construed as references
to the clauses of this Agreement. Any reference to a sub-Clause or a paragraph
is to a sub-Clause or paragraph of the Clause in which such reference appears.
2. UNDERTAKINGS BY SHAREHOLDERS
(A) Shareholders Support: In consideration of the Guarantor Banks
agreeing, at the request of the Shareholders, to make available to the Borrower
the guarantee facility referred to in Recital (A) above and the Lending Banks
agreeing, at the request of the Shareholders, to make available to the Borrower
the term loan facility referred to in Recital (A) above and/or the Banks (or any
of them) acting under or in connection with the Credit Agreement:-
(1) Completion Guarantee: (a) subject to sub-paragraph (c) below, (i) each
Shareholder agrees to procure that the Borrower will not abandon the
Project and to procure that Completion is achieved by not later than
the Scheduled Completion Date and (ii) each Shareholder shall
indemnify each Bank and keep each Bank indemnified against any losses,
damages, liabilities, costs and expenses (including, without
limitation, legal costs on a full indemnity basis) suffered by that
Bank if Completion is not achieved by the Scheduled Completion Date
and which would not have been suffered if Completion had been so
achieved;
(b) each Shareholder agrees to undertake such expenditures as are
required in order to ensure its compliance with the provisions of
sub-paragraph (a) above and agrees to take all steps necessary to
ensure that Completion is achieved by not later than the Scheduled
Completion Date (provided that, without prejudice to the obligations
of the Shareholders under sub-paragraph (a)(ii) above or any other
provision of this Agreement, the aggregate amount of the expenditures
by the Shareholders under sub-paragraphs (a)(i) and (b) at any time
shall not exceed the difference between S$720,000,000 and the
aggregate amount of Shareholding Funding provided by the Shareholders
immediately prior to that time); and
(c) any payment obligation of a Shareholder arising under
sub-paragraph (a) or (b) above shall be limited to that Shareholder's
Equity Commitment Percentage of the total amount payable by the
Shareholders provided always that the maximum aggregate liability of
the Shareholders at any time under sub-paragraph (a)(ii) above shall
not exceed the Total Indebtedness at that time;
(2) Equity Support: if, on 31st December, 2001, the ratio of the
Borrowings of the Borrower to its Net Worth is in excess of 2.6:1,
each Shareholder shall (without demand by the Borrower, the Agent or
any Bank) severally provide Shareholder Funding to the Borrower within
14 days after that date in an amount equal to its Equity Commitment
Percentage of the difference between (a) S$720,000,000 and (b) the
aggregate amount of Shareholder Funding immediately prior to the
provision of Shareholder Funding by that Shareholder on that date; and
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(3) DSCR: if, on any Calculation Date, there is a breach by the Borrower
of its obligations under Clause 16(16)(a) or Clause 16(16)(b) of the
Credit Agreement, each Shareholder shall (without demand by the
Borrower, the Agent or any Bank) severally provide Shareholder Funding
to the Borrower on that Calculation Date in an amount equal to its
Equity Commitment Percentage of the lower of (a) the amount (as
determined by the Agent) to enable the Borrower to meet any shortfall
in its ability to meet all payments referred to in component "B" of
the definition of DSCR falling due during the next succeeding
Calculation Period commencing on that Calculation Date and (b) the
difference between (i) S$720,000,000 and (ii) the aggregate amount of
Shareholder Funding immediately prior to the provision of Shareholder
Funding by that Shareholder on that Calculation Date.
(B) Obligations Unconditional: The obligations of the Shareholders under this
Clause are unconditional and absolute, irrespective of (1) any event, however
fundamental, outside the control of the Borrower or any Shareholder or any other
person preventing the Borrower from achieving Completion by the Scheduled
Completion Date, (2) any winding-up, liquidation or dissolution of the Borrower,
(3) any Event of Default or action taken by the Agent or any Bank under the
Financing Documents or any enforcement of any security constituted by any
Financing Document, (4) whether the Project or the business of the Borrower is
being carried on by any receiver, judicial manager or other person and (5) any
other circumstances whatsoever.
(C) Subscription Procedures: (1) The Borrower and each Shareholder shall do all
such things as may be necessary on their part for the provision of Shareholder
Funding required pursuant to this Agreement.
(2) If for any reason whatsoever (including, without limitation, the
winding-up, liquidation or dissolution of the Borrower or failure of the
Borrower to issue shares or to accept payment), a Shareholder does not or
cannot provide Shareholder Funding, that Shareholder will nevertheless, at
such times as are specified in this Clause, pay to the Borrower the amount
it would otherwise have been obliged to pay by way of Shareholder Funding,
which shall be deemed to discharge its obligation to provide that
Shareholder Funding.
(3) If a Shareholder makes a payment under paragraph (2), the Borrower will
be liable (on the same terms and conditions) to that Shareholder for the amount
of the payment as if it had constituted Shareholder Funding by way of
subscription moneys for shares or subordinated loans (as appropriate).
(D) Subordinated Loans: If the Shareholders' obligations under this Clause are
fulfilled by means of loans to the Borrower (whether from any of or all the
Shareholders or from some other party), each of the Borrower and the
Shareholders agrees that such loans shall:-
(1) be unsecured;
(2) not be subject to any payment of interest until after the Discharge
Date (although interest may accrue on it prior to the Discharge Date);
and
(3) be subordinated to the Senior Indebtedness in the manner set out in
this Agreement (Provided that, notwithstanding anything to the
contrary contained in this Agreement, the aggregate amount of such
loans which shall be subordinated to the Senior Indebtedness in the
manner set out in this Agreement shall not exceed the difference
between S$720,000,000 and the aggregate amount of Shareholding Funding
provided by the Shareholders by way of subscription moneys for
shares).
3. SUBORDINATION
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(A) Subordination: The Shareholders and the Borrower hereby agree with and
undertake to the Agent and each of the Banks that, notwithstanding anything to
the contrary contained in any agreement or other document constituting or
evidencing the Subordinated Indebtedness, before the Discharge Date the
Subordinated Indebtedness and the rights and claims of the Shareholders in
relation to the Subordinated Indebtedness are subordinated to the Senior
Indebtedness and the respective rights and claims of the Banks in relation to
the Senior Indebtedness and accordingly, subject as provided in this Agreement,
payments of any amount of the Subordinated Indebtedness (whether in the event of
the winding-up, liquidation or dissolution of the Borrower or otherwise) are
conditional upon all of the Senior Indebtedness having first been fully
satisfied and discharged and no payment of any amount of the Subordinated
Indebtedness which, but for this Agreement, would otherwise fall due for payment
will fall so due, and instead such payment will fall due only if and when the
Senior Indebtedness has been fully satisfied and discharged and, if the
Subordinated Indebtedness or any part thereof is paid by or on behalf of the
Borrower to any Shareholder, that payment shall be forthwith paid over by that
Shareholder to the Agent.
(B) Turnover: Without prejudice to the provisions of sub-Clause (A) above, if
any amount of Subordinated Indebtedness is discharged or purported to be
discharged by payment, repayment, prepayment, set-off or in any other manner in
contravention of sub-Clause (A) above or Clause 4 (and, for the avoidance of
doubt, any payment of consideration, discount or benefit given or credit terms
granted under any of the Excluded Transactions shall be deemed not to be a
discharge or purported discharge of any part of the Subordinated Indebtedness),
the relevant Shareholder shall:-
(1) (if the Shareholder actually receives the amount discharged or
purported to be discharged) immediately pay it to the Agent for
application towards the Senior Indebtedness; and
(2) (if the Shareholder does not, as a result of discharge by set-off or
otherwise, actually receive the amount discharged or purported to be
discharged) pay to the Agent an amount equal to that discharged or
purported to be discharged.
(C) Application: Any amount received by the Agent from any of the Shareholders,
or any person on its behalf, under sub-Clause (A) or (B) above shall be applied
in the following manner and order:-
(1) first, in or towards payment of any costs, charges and expenses
incurred by the Agent then due and payable under this Agreement and
the other Financing Documents;
(2) secondly, in or towards payment of the Senior Indebtedness (and in the
event that such sums are insufficient to satisfy in full the Senior
Indebtedness, such sums shall be paid to the Banks in proportion to
their respective shares of the Senior Indebtedness at the time of
payment); and
(3) thirdly, in payment of any surplus to that Shareholder or any other
person lawfully entitled thereto.
4. AGREEMENT BY BORROWER AND SHAREHOLDERS
(A) By Borrower: The Borrower agrees and undertakes that prior to the Discharge
Date, it shall not, without the prior consent in writing of the Agent and the
Banks:-
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(1) make any loans or advances, whether directly or indirectly, to any of
the Shareholders or provide any guarantee, indemnity or security for
or in connection with any indebtedness or liabilities of any of the
Shareholders or otherwise enter into any transactions with any of the
Shareholders other than (a) any transaction on arm's length commercial
terms and for valuable consideration or (b) any Excluded Transaction;
(2) secure all or any part of the Subordinated Indebtedness;
(3) redeem, purchase or otherwise acquire any of the Subordinated
Indebtedness;
(4) repay or prepay any, or pay any interest, fees or commissions (but
without prejudice to accrual thereof) on, or by reference to, any of
the Subordinated Indebtedness otherwise than in accordance with the
terms of this Agreement; or
(5) take or omit to take any action whereby the subordination of the
Subordinated Indebtedness or any part thereof to the Senior
Indebtedness may be terminated, impaired or adversely affected.
(B) By Shareholders: Except as otherwise expressly provided in this Agreement,
none of the Shareholders shall, without the prior consent in writing of the
Agent and the Banks, prior to the Discharge Date:-
(1) ask, demand, ▇▇▇ for, take or receive, directly or indirectly, whether
by exercise of set-off, counterclaim or in any other manner, or
recover or enforce payment of any Subordinated Indebtedness (provided
that, for the avoidance of doubt, nothing under this paragraph (1)
shall prohibit any asking, demand, suit for, taking or receipt, or
recovery or enforcement of, any payment due by the Borrower under any
of the Excluded Transactions);
(2) take any security from the Borrower or any other person in respect of
any Subordinated Indebtedness and any security taken notwithstanding
the undertaking in this paragraph (2) shall be held by the relevant
Shareholder in trust for the Agent;
(3) make or enforce any claim or right against the Borrower or prove in
competition with the Agent or any Bank in respect of the performance
of any obligation under this Agreement;
(4) assign, transfer, sell, charge or purport to assign, transfer, sell,
charge or otherwise dispose or purport to dispose of the whole or any
part of or any interest in any rights which it may from time to time
and for the time being have against the Borrower in respect of the
Subordinated Indebtedness; or
(5) take or omit to take any action whereby the subordination of the
Subordinated Indebtedness or any part thereof to the Senior
Indebtedness may be terminated, impaired or adversely affected.
5. REPRESENTATIONS AND WARRANTIES
(A) By Shareholders: Each of the Shareholders severally represents and warrants
to and for the benefit of the Agent and each of the Banks in relation to itself
that:-
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(1) Status: it is a company duly incorporated and validly existing under
the laws of Singapore (in the case of CSM and EDBI) or the Netherlands
(in the case of ATE), and has the power and authority to own its
assets and to conduct the business which it conducts and/or proposes
to conduct;
(2) Powers: it has the power to enter into, exercise its rights and
perform and comply with its obligations under this Agreement;
(3) Authorisations and Consents: all action, conditions and things
required to be taken, fulfilled and done (including the obtaining of
any necessary consents) in order (a) to enable it lawfully to enter
into, exercise its rights and perform and comply with its obligations
under this Agreement, (b) to ensure that those obligations are valid,
legally binding and enforceable, and (c) to make this Agreement
admissible in evidence in the courts of Singapore and the Netherlands
have been taken, fulfilled and done;
(4) Non-Violation of Laws: its entry into, exercise of its rights and/or
performance of or compliance with its obligations under this Agreement
do not and will not violate, or exceed any power or restriction
granted or imposed by, (a) any law to which it is subject or (b) its
Memorandum and Articles of Association;
(5) Obligations Binding: its obligations under this Agreement are valid,
binding and enforceable;
(6) Non-Violation of Other Agreements: its entry into, exercise of its
rights and/or performance of or compliance with its obligations under
this Agreement do not and will not violate, to an extent or in a
manner which has or will have a material adverse effect on it, any
agreement to which it is a party or which is binding on it or its
assets;
(7) Litigation: no litigation, arbitration or administrative proceeding is
current or pending (a) to restrain the entry into, exercise of its
rights under and/or performance or enforcement of or compliance with
its obligations under this Agreement or (b) which has or will have a
material adverse effect on it;
(8) Winding-up: no meeting has been convened for its winding-up or for the
appointment of a receiver, trustee, judicial manager or similar
officer of it, its assets or any of them, no such step is intended by
it and, so far as it is aware, no petition, application or the like is
outstanding for its winding-up or for the appointment of a receiver,
trustee, judicial manager or similar officer of it, its assets or any
of them;
(9) No Default: as far as it is aware after having made all due and proper
enquiries, no Event of Default has occurred and is continuing, and it
is not in breach of or default under any agreement to an extent or in
a manner which has or will have a material adverse effect on it; and
(10) Repetition: each of the above representations and warranties will be
correct and complied with in all material respects at all times up to
the Termination Date as if repeated then by reference to the then
existing circumstances.
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(B) By CSM: CSM further represents and warrants to and for the benefit of the
Agent and each of the Banks that:-
(1) Shareholding: CSM is (either directly or through any one or more of
its wholly-owned subsidiaries) the legal and beneficial owner of at
least 51 per cent. of the issued share capital of the Borrower and
Singapore Technologies Pte Ltd is (either directly or through any one
of more of its wholly-owned subsidiaries) the legal and beneficial
owner of at least 51 per cent. of the issued share capital of CSM;
(2) Accounts: its audited accounts and consolidated accounts (if any) as
at 31st December, 1996 and for the financial year then ended and as
delivered to the Agent (with copies of the reports and approvals
referred to in (a) below):-
(a) include such financial statements as are required by the laws of
Singapore and, save as stated in the notes thereto, were
prepared, audited, examined, reported on and approved in
accordance with accounting principles and practices generally
accepted in the United States of America and consistently applied
and in accordance with the laws of Singapore and its Memorandum
and Articles of Association (or other constitutive documents);
(b) together with those notes, give a true and fair view of its state
of affairs and financial condition and operations (or, in the
case of consolidated accounts, the consolidated state of affairs
and financial condition and operations of CSM and its
subsidiaries) as at that date and for the financial year then
ended; and
(c) together with those notes and to the extent required by
accounting principles, standards and practices generally accepted
in the United States of America disclose or reserve against all
liabilities (contingent or otherwise) of the relevant person(s)
as at that date and all material unrealised or anticipated losses
from any commitment entered into by the relevant person(s) and
which existed on that date;
(3) No Material Adverse Change: there has been no material adverse change
in its financial condition or operations since 31st December, 1997 nor
in the consolidated financial condition or operations of it and its
subsidiaries since that date; and
(4) Repetition: the representation and warranty in paragraph (1) will be
correct and complied with in all respects so long as any sum remains
to be lent or remains payable under the Credit Agreement as if
repeated then by reference to the then existing circumstances and each
of the representations and warranties in paragraphs (2) and (3) will
be correct and complied with in all material respects at all times up
to the Termination Date as if repeated then by reference to the then
existing circumstances.
(C) By EDBI: EDBI further represents and warrants to and for the benefit of the
Agent and each of the Banks that EDBI is, on the date of this Agreement, the
legal and beneficial owner of not less than 19 per cent. of the issued share
capital of the Borrower.
(D) By ATE: ATE further represents and warrants and for the benefit of the
Agent and each of the Banks that:-
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(1) Shareholding: ATE has an effective shareholding in not less than 30
per cent. of the issued share capital of the Borrower and ATI (either
directly or through any one or more of its subsidiaries in which it
owns not less than 95 per cent. of the issued share capital of that
subsidiary) has an effective shareholding in not less than 30 per
cent. of the issued share capital of the Borrower for a period of not
less than four years from the date of the Joint Venture Agreement;
(2) Information Pack: at 13th October, 1999, the information in the
Information Pack relating to, and provided by, ATI was true, complete
and accurate in all material respects;
(3) No Material Adverse Change: there has been no material adverse change
in the financial condition or operations of ATI since 13th October,
1999; and
(4) Repetition: the representation and warranty in paragraph (1) will be
correct and complied with in all respects so long as any sum remains
to be lent or remains payable under the Credit Agreement as if
repeated then by reference to the then existing circumstances and the
representation and warranty in paragraph (2) will be correct and
complied with in all material respects at all times up to the
Termination Date as if repeated then by reference to the then existing
circumstances.
6. UNDERTAKINGS
(A) By Shareholders: (1) Each of the Shareholders severally undertakes that, at
all times prior to the Termination Date:-
(a) Litigation: it will, as soon as reasonably practicable, deliver
to the Agent for distribution to the Banks details of any litigation,
arbitration or administrative proceeding which, if to its knowledge
had been current or pending at the date of this Agreement, would have
rendered the representation and warranty in Clause 5(A)(7) incorrect;
(b) Other Information: it will, as soon as reasonably practicable,
deliver to the Agent for distribution to the Banks such other
information relating to its financial condition or business of it as
the Agent (or any Bank through the Agent) may from time to time
reasonably require (except for information of a proprietary nature or
which is reasonably regarded by it as confidential); and
(c) Further Assurance: it will from time to time on reasonable
request by the Agent acting on the instructions of the Majority Banks
do or procure the doing of all such acts and will execute or procure
the execution of all such documents as may be reasonably necessary for
giving full effect to this Agreement or securing to the Agent and the
Banks the full benefits of all rights, powers and remedies conferred
upon the Agent and the Banks in this Agreement.
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(2) Each of the Shareholders severally undertakes that, so long as any sum
remains to be lent or remains payable under the Credit Agreement:-
(a) No Winding-up: it will not propose or vote in favour of any
resolution for the winding-up, liquidation or dissolution of the
Borrower; and
(b) Dividends: it will exercise all voting rights attaching to the
shares in the capital of the Borrower for the time being held by
it so as to ensure that the Borrower does not declare or pay any
dividend otherwise then in accordance with Clause 16(13) of the
Credit Agreement.
(B) By CSM: (1) CSM further undertakes that, so long as any sum remains to
be lent or remains payable under the Credit Agreement, it will be (either
directly or through any one or more of its wholly-owned subsidiaries) the legal
and beneficial owner of at least 51 per cent. of the issued share capital of the
Borrower and Singapore Technologies Pte Ltd will be (either directly or through
any one or more of its wholly-owned subsidiaries) the legal and beneficial owner
of at least 51 per cent. of the issued share capital of CSM.
(2) CSM further undertakes that, at all times prior to the Termination
Date, it will, as soon as available and in any event within 180 days after the
end of each of its financial years (beginning with the current one), deliver to
the Agent enough copies for the Banks of its audited accounts (both consolidated
and unconsolidated) as at the end of and for that financial year.
(C) By EDBI: EDBI further undertakes that, at all times prior to the
Termination Date, it will deliver to the Agent as soon as available and in any
event within 180 days after the end of each of its financial years (beginning
with the current one), enough copies for the Banks of a statement as to its
share capital and reserves as at the end of and for that financial year.
(D) By ATE: (1) ATE further undertakes that, so long as any sum remains to
be lent or remains payable under the Credit Agreement, ATI (either directly or
through one or more of its subsidiaries in which it owns not less than 95 per
cent. of the issued share capital of that subsidiary) will have an effective
shareholding in not less than 30 per cent. of the issued share capital of the
Borrower for a period of not less than four years from the date of the Joint
Venture Agreement.
(2) ATE further undertakes that, at all times prior to the Termination
Date:-
(a) Preparation of Accounts: it will ensure that all accounts of ATI
to be delivered by it under this Agreement are prepared in such
manner that they will:-
(i) include such financial statements as are required by the
laws of the United States of America and, save as stated in
the notes thereto, were prepared, audited, examined,
reported on and approved in accordance with accounting
principles and practices generally accepted in the United
States of America consistently applied and in accordance
with the laws of the United States of America and its
Memorandum and Articles of Association (or other
constitutive documents);
(ii) together with those notes, give a true and fair view of its
state of affairs and financial condition and operations
(or, in the case of consolidated accounts, the consolidated
state of affairs and financial condition and operations of
ATI and its subsidiaries) as at that date and for the
financial year then ended; and
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(iii) together with those notes and to the extent required by
accounting principles, standards and practices generally
accepted in the United States of America disclose or
reserve against all liabilities (contingent or otherwise)
of the relevant person(s) as at that date and all material
unrealised or anticipated losses from any commitment
entered into by the relevant person(s) and which existed on
that date; and
(b) it will, as soon as available and in any event within 180 days
after the end of each of its financial years (beginning with the
current one), deliver, or cause to be delivered, to the Agent
enough copies for the Banks (on the basis of one copy for each
Bank) of the published annual report of ATI as at the end of and
for that financial year.
7. PAYMENTS
(A) Taxes: (1) All sums payable by the Shareholders under this Agreement
shall be paid (1) free of any restriction or condition, (2) free and clear of
and (except to the extent required by law) without any deduction or withholding
for or on account of any tax and (3) without deduction or withholding (except to
the extent required by law) on account of any other amount, whether by way of
set-off or otherwise.
(2) If any of the Shareholders or any other person (whether or not a party
to, or on behalf of a party to, this Agreement) must at any time deduct or
withhold any tax or other amount from any sum paid or payable by, or received or
receivable from, that Shareholder under this Agreement, that Shareholder shall
pay such additional amount as is necessary to ensure that the Agent or, as the
case may be, the Bank to which that sum is due, receives on the due date and
retains (free from any liability other than tax on its own overall net income) a
net sum equal to what it would have received and so retained had no such
deduction or withholding been required or made.
(3) If any of the Shareholders or any other person (whether or not a party
to, or on behalf of a party to, this Agreement) must at any time pay any tax or
other amount on, or calculated by reference to, any sum received or receivable
by the Agent or, as the case may be, any of the Banks from that Shareholder
under this Agreement (except for a payment by the Agent or a Bank of tax on its
own overall net income), that Shareholder shall pay or procure the payment of
that tax or other amount before any interest or penalty becomes payable or, if
that tax or other amount is payable and paid by the Agent or any Bank, shall
reimburse it on demand for the amount paid by it.
(4) Within 30 days after paying any sum from which it is required by law
to make any deduction or withholding, and within 30 days after the due date of
payment of any tax or other amount which it is required by paragraph (3) above
to pay, the relevant Shareholder shall deliver to the Agent evidence reasonably
satisfactory to the Agent or, as the case may be, the relevant Bank of that
deduction, withholding or payment and (where remittance is required) of the
remittance thereof to the relevant taxing or other authority.
(5) As soon as any of the Shareholders is aware that any such deduction,
withholding or payment is required (or any change in any such requirement), that
Shareholder shall notify the Agent.
(B) Goods and Services Tax: Each of the Shareholders shall also pay to the
Agent and each Bank on demand, in addition to any amount payable by that
Shareholder under this Agreement, any goods and services, value added or other
similar tax payable in respect of that amount (and any reference in this
Agreement to that amount shall be deemed to include any such taxes payable in
addition to it).
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(C) Refund of Tax Credits: If:-
(1) any Shareholder makes a payment under sub-Clause (A)(2) or (3)
(a "Tax Payment") in respect of a payment to a Bank under this
Agreement; and
(2) that bank determines in its absolute discretion that it has
obtained a refund of tax or obtained and used a credit against
tax on its overall net income (a "Tax Credit") which that Bank
in its absolute discretion is able to identify as attributable to
that Tax Payment,
then, if in its absolute discretion it can do so without any adverse
consequences for that Bank, that Bank shall reimburse that Shareholder such
amount as that Bank in its absolute discretion determines to be such proportion
of that Tax Credit as will leave that Bank (after that reimbursement) in no
better or worse position in respect of its worldwide tax liabilities than it
would have been in if no Tax Payment had been required. A Bank shall have an
absolute discretion as to whether to claim any Tax Credit (and, if it does
claim, the extent, order and manner in which it does so) and whether any amount
is due from it under this sub-Clause (C) (and, if so, what amount and when). No
Bank shall be obliged to disclose any information regarding its tax affairs and
computations.
(D) Currency Indemnity: (1) Any amount received or recovered by the Agent
or any Bank in respect of any sum expressed to be due to it from any Shareholder
under or in connection with this Agreement in a currency (such currency being
referred to as the "Relevant Currency") other than the currency in which such
sum is expressed to be due under this Agreement (such currency being referred to
as the "Currency of Account") whether as a result of, or of the enforcement of,
a judgment or order of a court or tribunal of any jurisdiction, in the
winding-up of that Shareholder or otherwise, shall only constitute a discharge
to that Shareholder to the extent of the amount in the Currency of Account which
the recipient is able, in accordance with its usual practice, to purchase with
the amount of the Relevant Currency so received or recovered on the date of that
receipt or recovery (or, if it is not practicable to make that purchase on that
date, on the first date on which it is practicable to do so).
(2) If that amount in the Currency of Account is less than the amount of
the Currency of Account due to the recipient under or in connection with this
Agreement, that Shareholder shall indemnify it against any loss sustained by it
as a result. In any event, that Shareholder shall indemnify the recipient
against the cost of making any such purchase. For the purpose of this sub-Clause
(D), it will be sufficient for the recipient to demonstrate that it would have
suffered a loss had an actual exchange or purchase been made.
(3) Each of the indemnities in this sub-Clause (D) constitutes a separate
and independent obligation from the other obligations in this Agreement, shall
give rise to a separate and independent cause of action, shall apply
irrespective of any indulgence granted by the Agent, any Arranger and/or any
Bank and shall continue in full force and effect despite any judgment, order,
claim or proof for a liquidated amount in respect of any sum due under this
Agreement or any other judgment or order.
8. NATURE OF RIGHTS AND OBLIGATIONS
(A) No Release: The obligations of the Shareholders under this Agreement
(excluding, for the avoidance of doubt, any obligation of the Shareholders under
this Agreement which has been discharged) shall not be discharged, impaired or
otherwise affected by any act, omission, matter or thing which, but for this
sub-Clause (A), may operate to release or otherwise exonerate any of the
Shareholders from its obligations under this Agreement in whole or in part,
including without limitation and whether or not known to it or any other
person:-
(1) any variation in or to the Project;
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105
(2) any time, indulgence, concession waiver or consent at any time
given by the Agent and/or any of the Banks in respect of the
Senior Indebtedness or any part thereof or to the Borrower, any
Shareholder or any other person;
(3) any amendment or supplement to any provision of any Financing
Document or any other agreement, security, guarantee or
indemnity;
(4) the making or the absence of any demand on the Borrower, any
Shareholder or any other person for payment;
(5) the enforcement or absence of enforcement of or release of any of
the Financing Documents or any other agreement, security,
guarantee or indemnity held in respect of the Senior
Indebtedness;
(6) the winding-up, insolvency, bankruptcy, amalgamation,
reconstruction or reorganisation of the Borrower, any Shareholder
or any other person;
(7) the illegality, invalidity or unenforceability of or any defect
in any provision of any Financing Document or any other
agreement, security, guarantee or indemnity or any of the
obligations of the Borrower, any Shareholder or any other person
thereunder, whether on the grounds of ultra ▇▇▇▇▇, not being in
the interests of the Borrower or any other person, not having
been duly authorised, executed or delivered by the Borrower or
any other person or for any reason whatsoever; or
(8) any other act, event or omission which but for this provision
would or might operate to impair or discharge the obligations of
any Shareholder under this Agreement.
(B) Continuing Obligations: The obligations of the Shareholders and the
Borrower under this Agreement are continuing obligations, will not be discharged
by any intermediate payment and will remain in full force and effect until the
obligations have been fulfilled (for the avoidance of doubt, nothing in this
sub-Clause (B) shall affect any obligations of the Borrower or any Shareholder
which has been discharged by the due and proper performance by the Borrower or
such Shareholder of such obligations).
(C) Reinstatement: (1) Any settlement or discharge between the Agent or
any of the Banks and any of the Shareholders shall be conditional upon no
security or payment to the Agent or such Bank by the Borrower or any other
person being avoided or reduced by virtue of any provision or enactment relating
to bankruptcy, insolvency or winding-up for the time being in force or by virtue
of any obligation to give effect to any preference or priority and the Agent or
such Bank (as the case may be) shall be entitled to recover the value or amount
of any such security or payment from that Shareholder subsequently as if such
settlement or discharge had not occurred.
(2) Without prejudice to the provisions of paragraph (1) above, where any
discharge (whether in respect of the obligations of any Shareholder or any
security for those obligations or otherwise) is made in whole or in part or any
arrangement is made on the faith of any payment, security or other disposition
which is avoided or must be repaid on bankruptcy, insolvency or winding-up or
otherwise without limitation, the liability of the Shareholders under this
Agreement shall, unless the Agent and the Banks agree otherwise, continue as if
the discharge or arrangement, as the case may be, had not occurred.
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106
(D) Failure by Shareholder: The failure of a Shareholder or the Borrower to
perform or comply with any of its obligations under this Agreement shall not
release any other Shareholder or the Borrower of its obligations under this
Agreement.
(E) Immediate Recourse: Each Shareholder waives any right which it may have of
first requesting the Agent or any of the Banks to proceed against or enforce any
other rights or security or claim payment from the Borrower, any other
Shareholder or any other person before claiming from the Shareholder under this
Agreement.
(F) Additional Security: This Agreement shall be in addition to and shall not
in any way be prejudiced by any other security now or hereafter held by the
Agent or any Bank as security for the obligations of the Borrower under the
Credit Agreement.
9. EXPENSES
(A) By Shareholders: Each of the Shareholders shall pay on demand all costs and
expenses (including legal expenses on a full indemnity basis) reasonably
incurred by the Agent and/or any of the Banks in protecting or enforcing any
rights against it under this Agreement.
(B) By Borrower: The Borrower shall pay on demand all costs and expenses
(including legal expenses on a full indemnity basis) reasonably incurred by the
Agent and/or any of the Banks in protecting or enforcing any rights against it
under this Agreement.
10. BENEFIT OF AGREEMENT
(A) Shareholders/Borrower: The Borrower may not assign or transfer any of its
rights, benefits or obligations under this Agreement. None of the Shareholders
may assign or transfer any of their respective rights, benefits or obligations
under this Agreement other than in the following manner and upon the following
terms:-
(1) in the case of EDBI, it may transfer all of its rights, benefits and
obligations under this Agreement to any of its wholly-owned
subsidiaries which has acquired all the shares owned by EDBI in the
Borrower, provided that (a) the transferee shall have agreed in
writing to the other parties to this Agreement to assume all the
obligations of EDBI under this Agreement and (b) EDBI and the
transferee shall have undertaken to the other parties to this
Agreement to ensure that, in the event that the transferee ceases to
be a wholly-owned subsidiary of EDBI, the transferee shall transfer
all its rights, benefits and obligations under this Agreement to EDBI
or a wholly-owned subsidiary of EDBI; and
(2) in the case of ATE, it may transfer all of its rights, benefits and
obligations under this Agreement to a ATI Entity (provided that, at
the time of such transfer, ATI owns at least 95 per cent. of the
issued share capital of such ATI Entity) which has acquired all the
shares owned by ATE in the Borrower, provided that (a) such ATI Entity
shall have undertaken to the other parties to this Agreement to assume
all the obligations of ATE under this Agreement and (b) ATE and such
ATI Entity shall have undertaken to the other parties to this
Agreement to ensure that, in the event ATI ceases to own at least 95
per cent. of the issued share capital of such ATI Entity, such ATI
Entity shall transfer all its rights, benefits and obligations under
this Agreement to ATI, ATE or another ATI Entity (of which ATI owns at
least 95 per cent. of its issued share capital).
100
107
(B) Agent/Banks: (1) Each of the Agent and the Banks may assign all or part
of its rights under this Agreement without the consent of any party to any
assignee or transferee under the Credit Agreement (but the assignor shall give
to the Borrower prior notice of such assignment or transfer). Any such assignee
shall be entitled to the full benefit of this Agreement to the same extent as if
it were an original party in respect of the rights assigned to it.
(2) None of the Shareholders and the Borrower shall be liable for any costs
or expenses which may be incurred in connection with any assignment or transfer
of any of the rights of the Agent or any of the Banks under this Agreement.
(C) Disclosure of Information: The Agent or any of the Banks may disclose
on a confidential basis to any other party to the Financing Documents or any of
its other branches or its headquarters or to an actual or potential New Lending
Bank, assignee, sub-participant or the like such information about the Borrower,
any Shareholder or any other person as it may think fit and may disclose to such
party such information about the Borrower or any of the Shareholders with the
prior consent in writing of the Borrower or, as the case may be, such
Shareholder (Provided that, at any time and from time to time after the making
of a declaration under Clause 17(B) of the Credit Agreement, (1) no such consent
will be required for any such disclosure and (2) the Agent or the relevant Bank
making any such disclosure shall, if practicable, consult with the Borrower or,
as the case may be, such Shareholder prior to making any such disclosure and
shall consider in good faith any request from the Borrower or, as the case may
be, such Shareholder to the Agent or such Bank not to make any such disclosure
or to delay making any such disclosure).
(D) Limitation on Certain Obligations: If, at the time of any assignment or
transfer by a Bank, circumstances exist which would oblige any Shareholder to
pay to the assignee or transfer under Clause 7(A) any sum in excess of the sum
(if any) which it would have been obliged to pay to that Bank under that Clause
in the absence of that assignment or transfer, that Shareholder shall not be
obliged to pay that excess.
11. WAIVERS
No failure on the part of the Agent or any of the Banks to exercise,
and no delay on its part in exercising, any right or remedy under this Agreement
will operate as a waiver thereof, nor will any single or partial exercise of any
right or remedy preclude any other or further exercise thereof or the exercise
of any other right or remedy. The rights and remedies provided in this Agreement
are cumulative and not exclusive of any other rights or remedies (whether
provided by law or otherwise).
12. COMMUNICATIONS
(A) Addresses: Each communication under this Agreement shall be made by
fax, telex or otherwise in writing. Each communication or document to be
delivered to any party under this Agreement shall be sent to that party at the
fax number, telex number or address, and marked for the attention of the person
(if any), from time to time designated by that party to the Agent (or, in the
case of the Agent, by it to each other party) for the purpose of this Agreement.
The initial fax number, telex number, address and person (if any) so designated
by each party are set out against its name at the end of this Agreement.
(B) Deemed Delivery: Any communication under this Agreement shall be deemed
to have been received (if sent by fax or telex) on the day of despatch or (in
any other case) when left at the address required by sub-Clause (A) above or
within five days after being sent by prepaid post (by airmail if to another
country) addressed to it at that address.
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108
13. PARTIAL INVALIDITY
The illegality, invalidity or unenforceability of any
provision of this Agreement under the law of any jurisdiction shall not affect
its legality, validity or enforceability under the law of any other jurisdiction
nor the legality, validity or enforceability of any other provision.
14. GOVERNING LAW AND JURISDICTION
(A) Governing Law: This Agreement shall be governed by, and
construed in accordance with, the laws of Singapore.
(B) Singapore Courts: For the benefit of the Agent and each Bank,
all the parties irrevocably agree that the courts of Singapore are to have
jurisdiction to settle any disputes which may arise out of or in connection with
this Agreement and that, accordingly, any legal action or proceedings arising
out of or in connection with this Agreement ("Proceedings") may be brought in
those courts and each of the Borrower and the Shareholders irrevocably submits
to the jurisdiction of those courts.
(C) Other Competent Jurisdiction: Nothing in this Clause shall limit
the right of the Agent and/or any Bank to take Proceedings against the Borrower
or any of the Shareholders in any other court of competent jurisdiction nor
shall the taking of Proceedings in one or more jurisdictions preclude the Agent
and/or any Bank from taking Proceedings in any other jurisdiction, whether
concurrently or not.
(D) Venue: Each of the Borrower and the Shareholders irrevocably
waives any objection which it may at any time have to the laying of the venue of
any Proceedings in any court referred to in this Clause and any claim that any
such Proceedings have been brought in an inconvenient forum.
(E) Service of Process: (1) ATE irrevocably appoints Agilent
Technologies Singapore Pte Ltd (now of ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, #▇▇-▇▇/▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Attention: The Regional Legal Counsellor) to receive,
for it and on its behalf, service of process in any Proceedings in Singapore.
Such service shall be deemed completed on delivery to the process agent
(whether or not it is forwarded to and received by ATE). If for any reason the
process agent ceases to be able to act as such or no longer has an address in
Singapore, ATE irrevocably agrees to appoint a substitute process agent
acceptable to the Agent, and to deliver to the Agent a copy of the new agent's
acceptance of that appointment, within 30 days. Nothing shall affect the right
to serve process in any other manner permitted by law.
(F) Consent to Enforcement, etc.: Each of the Borrower and the
Shareholders irrevocably and generally consents in respect of any Proceedings
anywhere to the giving of any relief or the issue of any process in connection
with those Proceedings including, without limitation, the making, enforcement or
execution against any assets whatsoever (irrespective of their use or intended
use) of any order or judgment which may be made or given in those Proceedings.
(G) Waiver of Immunity: Each of the Borrower and the Shareholders
irrevocably agrees that, should the Agent or any Bank take any Proceedings
anywhere (whether for an injunction, specific performance, damages or
otherwise), no immunity (to the extent that it may at any time exist, whether on
the grounds of sovereignty or otherwise) from those Proceedings, from attachment
(whether in aid of execution, before judgment or otherwise) of its assets or
from execution of judgment shall be claimed by it or on its behalf or with
respect to its assets, any such immunity being irrevocably waived. Each of the
Borrower and the Shareholders irrevocably agrees that it and its assets are,
and shall be, subject to such Proceedings, attachment or execution in respect
of its obligations under this Agreement.
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I N W I T N E S S W H E R E O F this Agreement has been entered into on
the date stated at the beginning.
The Shareholders
The Common Seal of )
CHARTERED SEMICONDUCTOR )
MANUFACTURING LTD )
was hereunto affixed )
in the presence of:- )
Director
-------------------------------------
Director/Secretary
-------------------------------------
▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇,
▇▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Attention: Legal Department
The Common Seal of )
EDB INVESTMENTS PTE LTD )
was hereunto affixed )
in the presence of:- )
Director
-------------------------------------
Director/Secretary
-------------------------------------
▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
#▇▇-▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇▇▇▇▇
Attention: General Manager
Signed, Sealed and Delivered )
by )
----------------------------------
for and on behalf of )
103
110
AGILENT TECHNOLOGIES EUROPE B.V. )
in the presence of:- )
▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇.
with copy to:-
European Legal Counsel
Agilent Technologies Europe B.V.,
Meyrin Branch,
▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇,
▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇/▇▇▇▇▇▇▇▇▇▇▇.
Fax Number: ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Attention: The European Legal Counsel
The Borrower
The Common Seal of )
CHARTERED SILICON PARTNERS PTE LTD )
was hereunto affixed )
in the presence of:- )
Director
-------------------------------------
Director/Secretary
-------------------------------------
▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇,
▇▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Attention: Legal Department
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The Agent
Signed, Sealed and Delivered by )
and )
as )
attorneys for and on behalf of )
ABN AMRO BANK N.V., )
SINGAPORE BRANCH )
in the presence of:- )
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 24396
Attention: ▇▇ ▇▇▇▇▇ ▇▇▇ / ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
105
112
I N W I T N E S S W H E R E O F this Agreement has been
entered into on the date stated at the beginning.
The Borrower
CHARTERED SILICON PARTNERS PTE LTD
60, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇,
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Attention: Legal Department
By: Witness:
------------------------------ ---------------------------------
Name: Name:
---------------------------- ------------------------------------
Title: Address:
--------------------------- ---------------------------------
The Arrangers
ABN AMRO BANK N.V.,
SINGAPORE BRANCH
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 24396
Attention: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ / Ms Pauline Low
By: By:
------------------------------ --------------------------------------
Name: Name:
---------------------------- ------------------------------------
Title: Title:
--------------------------- -----------------------------------
106
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ BRANCH
▇▇▇, ▇▇▇▇▇ ▇▇▇▇, #▇▇-▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 21445 BAYSIN
Attention: Mr Stefan Hattenkofer/▇▇ ▇▇ ▇▇▇▇▇ Inn
By: By:
------------------------------ --------------------------------------
Name: Name:
---------------------------- ------------------------------------
Title: Title:
--------------------------- -----------------------------------
CITIBANK, N.A., SINGAPORE
▇, ▇▇▇▇▇▇▇ ▇▇▇, #▇▇-▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 24584 CITBANK
Attention: ▇▇ ▇▇▇▇ ▇▇▇▇/▇▇ ▇▇▇▇ Wan Thonh
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
107
114
OVERSEAS UNION BANK LIMITED
▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇/538 2449
Telex Number: RS 23916
Attention: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇/▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
THE SUMITOMO BANK, LIMITED,
▇, ▇▇▇▇▇▇▇ ▇▇▇, #▇▇-▇▇,
▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 21656 SUMITBK
Attention: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇/Mr Kazushige Goto
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
108
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Guarantor Banks
ABN AMRO BANK N.V.,
SINGAPORE BRANCH
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 24396
Attention: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇/Ms Pauline Low
By: By:
------------------------------ --------------------------------------
Name: Name:
---------------------------- ------------------------------------
Title: Title:
--------------------------- -----------------------------------
BAYERISCHE LANDESBANK GIROZENTRALE,
SINGAPORE BRANCH
▇▇▇, ▇▇▇▇▇ ▇▇▇▇, #▇▇-▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 21445 BAYSIN
Attention: Mr Stefan Hattenkofer/▇▇ ▇▇ ▇▇▇▇▇ Inn
By: By:
------------------------------ --------------------------------------
Name: Name:
---------------------------- ------------------------------------
Title: Title:
--------------------------- -----------------------------------
▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇
▇, ▇▇▇▇▇▇▇ ▇▇▇, #▇▇-▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 24584 CITBANK
Attention: ▇▇ ▇▇▇▇ ▇▇▇▇/▇▇ ▇▇▇▇ Wan Thonh
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
OVERSEAS UNION BANK LIMITED
▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇/▇▇▇ ▇▇▇▇
Telex Number: RS 23916
Attention: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇/▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇
By:
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Name:
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Title:
-------------------------------------
110
▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ BRANCH
▇, ▇▇▇▇▇▇▇ ▇▇▇, #▇▇-▇▇,
▇▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 21656 SUMITBK
Attention: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇/Mr Kazushige Goto/
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
THE SANWA BANK LIMITED,
SINGAPORE BRANCH
6, Raffles Quay, #24-01,
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 28573
Attention: ▇▇ ▇▇▇ Soh Wah/▇▇ ▇▇▇ Wee Hian
By:
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Name:
--------------------------------------
Title:
-------------------------------------
111
118
THE BANK OF TOKYO-MITSUBISHI, LTD.,
SINGAPORE BRANCH
▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, #▇▇-▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 24363
Attention: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ (Loan Administration Department)/
▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ (Corporate Finance Department)
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
DANSKE BANK A/S
(formerly known as DEN DANSKE BANK AKTIESELSKAB,
SINGAPORE BRANCH)
▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, #▇▇-▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: 28030 DDBSIN
Attention: Mr ▇▇▇▇▇▇ ▇▇▇▇▇▇/Ms ▇▇▇▇▇▇▇ Wee
By: By:
------------------------------ --------------------------------------
Name: Name:
---------------------------- ------------------------------------
Title: Title:
--------------------------- -----------------------------------
112
119
The Lending Banks
ABN AMRO BANK N.V.,
SINGAPORE BRANCH
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 24396
Attention: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇/Ms Pauline Low
By: By:
------------------------------ --------------------------------------
Name: Name:
---------------------------- ------------------------------------
Title: Title:
--------------------------- -----------------------------------
BAYERISCHE LANDESBANK GIROZENTRALE,
SINGAPORE BRANCH
▇▇▇, ▇▇▇▇▇ ▇▇▇▇, #▇▇-▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 21445 BAYSIN
Attention: Mr Stefan Hattenkofer/▇▇ ▇▇ ▇▇▇▇▇ Inn
By: By:
------------------------------ --------------------------------------
Name: Name:
---------------------------- ------------------------------------
Title: Title:
--------------------------- -----------------------------------
▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇
▇, ▇▇▇▇▇▇▇ ▇▇▇, #▇▇-▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇/426 8959
Telex Number: RS 24584 CITBANK
Attention: ▇▇ ▇▇▇▇ ▇▇▇▇/▇▇ ▇▇▇▇ Wan Thonh
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
OVERSEAS UNION BANK LIMITED
▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇/▇▇▇ ▇▇▇▇
Telex Number: RS 23916
Attention: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇/▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
114
▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ BRANCH
▇, ▇▇▇▇▇▇▇ ▇▇▇, #▇▇-▇▇,
▇▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 21656 SUMITBK
Attention: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇/Mr Kazushige Goto/
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
THE BANK OF TOKYO-MITSUBISHI, LTD.,
SINGAPORE BRANCH
▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, #▇▇-▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 24363
Attention: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ (Loan Administration Department)/
▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ (Corporate Finance Department)
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
115
122
DANSKE BANK A/S
(formerly known as DEN DANSKE BANK AKTIESELSKAB,
SINGAPORE BRANCH)
▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, #▇▇-▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: 28030 DDBSIN
Attention: Mr ▇▇▇▇▇▇ ▇▇▇▇▇▇/Ms ▇▇▇▇▇▇▇ Wee
By: By:
------------------------------ --------------------------------------
Name: Name:
---------------------------- ------------------------------------
Title: Title:
--------------------------- -----------------------------------
The Agent
ABN AMRO BANK N.V.,
SINGAPORE BRANCH
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 24396
Attention: ▇▇ ▇▇▇▇▇ ▇▇▇ / ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
By: By:
------------------------------ --------------------------------------
Name: Name:
---------------------------- ------------------------------------
Title: Title:
--------------------------- -----------------------------------
116
123
The Security Trustee
ABN AMRO BANK N.V.,
SINGAPORE BRANCH
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 24396
Attention: ▇▇ ▇▇▇▇▇ ▇▇▇ / ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
By: By:
------------------------------ --------------------------------------
Name: Name:
---------------------------- ------------------------------------
Title: Title:
--------------------------- -----------------------------------
117
124
I N W I T N E S S W H E R E O F this Supplemental Agreement
has been entered into on the date stated at the beginning.
The Borrower
CHARTERED SILICON PARTNERS PTE LTD
60, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇,
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Attention: Legal Department
By: Sd. Chia Song Hwee Witness: Sd. ▇▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------ ---------------------------------
Name: Chia Song Hwee Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------- ------------------------------------
Title: Director Address: ▇/▇ ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------- ---------------------------------
▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇,
---------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
The Arrangers
ABN AMRO BANK N.V.,
SINGAPORE BRANCH
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 24396
Attention: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇/Ms Pauline Low
By: Sd. ▇▇▇▇▇▇▇▇ ▇▇▇▇ By: Sd. ▇▇▇▇ ▇▇▇▇ Fun
------------------------------ --------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇ Fun
---------------------------- ------------------------------------
Title: Vice President Title: Vice President
--------------------------- -----------------------------------
118
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ BRANCH
▇▇▇, ▇▇▇▇▇ ▇▇▇▇, #▇▇-▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 21445 BAYSIN
Attention: Mr Stefan Hattenkofer/▇▇ ▇▇ ▇▇▇▇▇ Inn
By: Sd. ▇▇▇▇▇▇▇ ▇▇▇▇▇ By: Sd. ▇▇ ▇▇▇▇▇ Inn
------------------------------ ---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇ ▇▇▇▇▇ Inn
---------------------------- -------------------------------------
Title: Assistant Vice President Title: Vice President
--------------------------- ------------------------------------
CITIBANK, N.A., SINGAPORE
▇, ▇▇▇▇▇▇▇ ▇▇▇, #▇▇-▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 24584 CITBANK
Attention: ▇▇ ▇▇▇▇ ▇▇▇▇/▇▇ ▇▇▇▇ Wan Thonh
By: Sd. ▇▇▇▇▇ ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
----------------------------
Title: Managing Director
---------------------------
119
126
OVERSEAS UNION BANK LIMITED
▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇/▇▇▇ ▇▇▇▇
Telex Number: RS 23916
Attention: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇/▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇
By: Sd. ▇▇▇▇ ▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇
----------------------------
Title: Senior Vice President
---------------------------
THE SUMITOMO BANK, LIMITED
▇, ▇▇▇▇▇▇▇ ▇▇▇, #▇▇-▇▇,
▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 21656 SUMITBK
Attention: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇/Mr Kazushige Goto
By: Sd. ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Title: Joint General Manager
---------------------------
120
127
Guarantor Banks
ABN AMRO BANK N.V.,
SINGAPORE BRANCH
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 24396
Attention: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇/Ms Pauline Low
By: Sd. ▇▇▇▇▇▇▇▇ ▇▇▇▇ By: Sd. ▇▇▇▇ ▇▇▇▇ Fun
------------------------------ --------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇ Fun
---------------------------- ------------------------------------
Title: Vice President Title: Vice President
--------------------------- -----------------------------------
BAYERISCHE LANDESBANK GIROZENTRALE,
SINGAPORE BRANCH
▇▇▇, ▇▇▇▇▇ ▇▇▇▇, #▇▇-▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 21445 BAYSIN
Attention: Mr Stefan Hattenkofer/▇▇ ▇▇ ▇▇▇▇▇ Inn
By: Sd. ▇▇▇▇▇▇▇ ▇▇▇▇▇ By: Sd. ▇▇ ▇▇▇▇▇ Inn
------------------------------ --------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇ ▇▇▇▇▇ Inn
---------------------------- ------------------------------------
Title: Assistant Vice President Title: Vice President
--------------------------- -----------------------------------
▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇
▇, ▇▇▇▇▇▇▇ ▇▇▇, #▇▇-▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 24584 CITBANK
Attention: ▇▇ ▇▇▇▇ ▇▇▇▇/▇▇ ▇▇▇▇ Wan Thonh
By: Sd. ▇▇▇▇▇ ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
----------------------------
Title: Managing Director
---------------------------
OVERSEAS UNION BANK LIMITED
▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇/538 2449
Telex Number: RS 23916
Attention: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇/▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇
By: Sd. ▇▇▇▇ ▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇
----------------------------
Title: Senior Vice President
---------------------------
122
▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ BRANCH
▇, ▇▇▇▇▇▇▇ ▇▇▇, #▇▇-▇▇,
▇▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 21656 SUMITBK
Attention: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇/Mr Kazushige Goto
By: Sd. ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Title: Joint General Manager
---------------------------
THE SANWA BANK LIMITED,
SINGAPORE BRANCH
6, Raffles Quay, #24-01,
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 28573
Attention: ▇▇ ▇▇▇ Soh Wah/▇▇ ▇▇▇ Wee Hian
By: Sd. Ong Say Chong
------------------------------
Name: Ong Say Chong
----------------------------
Title: Assistant General Manager
----------------------------
123
130
THE BANK OF TOKYO-MITSUBISHI, LTD.,
SINGAPORE BRANCH
▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, #▇▇-▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 24363
Attention: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ (Loan Administration Department)/
▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ (Corporate Finance Department)
By: Sd. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Title: Deputy General Manager
---------------------------
DANSKE BANK A/S
(formerly known as DEN DANSKE BANK AKTIESELSKAB,
SINGAPORE BRANCH)
▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, #▇▇-▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: 28030 DDBSIN
Attention: Mr ▇▇▇▇▇▇ ▇▇▇▇▇▇/Ms ▇▇▇▇▇▇▇ Wee
By: Sd. ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Title: Manager
---------------------------
124
131
The Lending Banks
ABN AMRO BANK N.V.,
SINGAPORE BRANCH
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 24396
Attention: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇/Ms Pauline Low
By: Sd. ▇▇▇▇▇▇▇▇ ▇▇▇▇ By: Sd. ▇▇▇▇ ▇▇▇▇ Fun
------------------------------ -------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇ Fun
---------------------------- -----------------------------------
Title: Vice President Title: Vice President
--------------------------- ----------------------------------
BAYERISCHE LANDESBANK GIROZENTRALE,
SINGAPORE BRANCH
▇▇▇, ▇▇▇▇▇ ▇▇▇▇, #▇▇-▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 21445 BAYSIN
Attention: Mr Stefan Hattenkofer/▇▇ ▇▇ ▇▇▇▇▇ Inn
By: Sd. ▇▇▇▇▇▇▇ ▇▇▇▇▇ By: Sd. ▇▇ ▇▇▇▇▇ Inn
------------------------------ --------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇ ▇▇▇▇▇ Inn
---------------------------- ------------------------------------
Title: Assistant Vice President Title: Vice President
--------------------------- -----------------------------------
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▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇
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Fax Number: ▇▇▇ ▇▇▇▇/▇▇▇ ▇▇▇▇
Telex Number: RS 24584 CITBANK
Attention: ▇▇ ▇▇▇▇ ▇▇▇▇/▇▇ ▇▇▇▇ Wan Thonh
By: Sd. ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
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Title: Managing Director
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OVERSEAS UNION BANK LIMITED
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▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇/538 2449
Telex Number: RS 23916
Attention: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇/▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇
By: Sd. ▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇
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Title: Senior Vice President
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126
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▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ BRANCH
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▇▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 21656 SUMITBK
Attention: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇/Mr Kazushige Goto
By: Sd. ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Joint General Manager
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THE BANK OF TOKYO-MITSUBISHI, LTD.,
SINGAPORE BRANCH
▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, #▇▇-▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 24363
Attention: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ (Loan Administration Department)/
▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ (Corporate Finance Department)
By: Sd. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Deputy General Manager
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127
134
DANSKE BANK A/S
(formerly known as DEN DANSKE BANK AKTIESELSKAB,
SINGAPORE BRANCH)
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: 28030 DDBSIN
Attention: Mr ▇▇▇▇▇▇ ▇▇▇▇▇▇/Ms ▇▇▇▇▇▇▇ Wee
By: Sd. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Manager
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The Agent
ABN AMRO BANK N.V.,
SINGAPORE BRANCH
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 24396
Attention: ▇▇ ▇▇▇▇▇ ▇▇▇ / ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
By: Sd. ▇▇▇▇▇▇▇▇ ▇▇▇▇ By: Sd. ▇▇▇▇ ▇▇▇▇ Fun
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇ Fun
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Title: Vice President Title: Vice President
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128
135
The Security Trustee
ABN AMRO BANK N.V.,
SINGAPORE BRANCH
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇ ▇▇▇▇
Telex Number: RS 24396
Attention: ▇▇ ▇▇▇▇▇ ▇▇▇/▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
By: Sd. ▇▇▇▇▇▇▇▇ ▇▇▇▇ By: Sd. ▇▇▇▇ ▇▇▇▇ Fun
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇ Fun
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Title: Vice President Title: Vice President
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