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EXHIBIT 10.26
DATED THE 3RD DAY OF SEPTEMBER 1999
SILICON MANUFACTURING PARTNERS PTE LTD
as Borrower
ABN AMRO BANK N.V., SINGAPORE BRANCH
CITIBANK, N.A., SINGAPORE BRANCH
OVERSEAS UNION BANK LIMITED
as Lead Arrangers
THE BANKS AND FINANCIAL INSTITUTIONS
as Lenders
CITICORP INVESTMENT BANK (SINGAPORE) LIMITED
as Facility Agent
And
CITICORP INVESTMENT BANK (SINGAPORE) LIMITED
as Security Agent
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SYNDICATED CREDIT FACILITIES AGREEMENT
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TSM&P
THIO SU MIEN & PARTNERS, Advocates & Solicitors
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, #▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇ ▇▇▇▇ -- Facsimile: (065) 534 4822
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C O N T E N T S
CLAUSE PAGE NO
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1. INTERPRETATION............................................................1
2. PURPOSE AND USE OF THE FACILITIES........................................21
3. CONDITIONS PRECEDENT.....................................................23
4. THE FACILITIES...........................................................24
5. REPAYMENT, PREPAYMENT AND CANCELLATION...................................27
6. INTEREST.................................................................30
7. ISSUE OF EDB GUARANTEE UNDER TRANCHE B[G] FACILITY.......................31
8. DEMANDS UNDER THE EDB GUARANTEE..........................................33
9. BORROWER'S LIABILITIES IN RELATION TO THE EDB GUARANTEE..................34
10. FEES.....................................................................36
11. CHANGE IN CIRCUMSTANCES..................................................37
12. TAXES....................................................................41
13. PAYMENTS.................................................................43
14. REPRESENTATIONS AND WARRANTIES...........................................45
15. FINANCIAL COVENANTS......................................................48
16. COVENANTS RELATING TO THE PROJECT ACCOUNTS...............................51
17. POSITIVE COVENANTS.......................................................53
18. NEGATIVE COVENANTS.......................................................60
19. EVENTS OF DEFAULT........................................................62
20. DEFAULT INTEREST.........................................................68
21. INDEMNITIES..............................................................70
22. APPLICATION OF PROCEEDS..................................................71
23. THE AGENTS...............................................................72
24. SET-OFF AND PRO-RATA SHARING.............................................77
25. EXPENSES AND STAMP DUTY..................................................78
26. CALCULATIONS AND EVIDENCE................................................79
27. SUCCESSORS AND ASSIGNS...................................................80
28. REMEDIES, WAIVERS, AMENDMENTS AND CONSENTS...............................82
29. COMMUNICATIONS...........................................................83
30. SEVERABILITY.............................................................84
31. COUNTERPARTS.............................................................84
32. NATURE OF RIGHTS AND OBLIGATIONS.........................................84
33. GOVERNING LAW AND JURISDICTION...........................................85
SCHEDULE
1 LENDERS' COMMITMENT......................................................86
2 CONDITIONS PRECEDENT.....................................................87
3 NOTICE OF DRAWING........................................................89
4 REQUEST FOR ISSUE OF EDB GUARANTEE.......................................90
5 PROJECT DOCUMENTS........................................................91
6 LIST OF SECURITY DOCUMENTS...............................................92
7 SWAP RATE................................................................93
8 REPAYMENT SCHEDULE OF TRANCHE A OUTSTANDINGS.............................94
9 INSURANCE................................................................95
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10 FORM OF EDB GUARANTEE....................................................96
11A REPAYMENT SCHEDULE (S$).................................................104
11B REPAYMENT SCHEDULE (US$)................................................105
12 SHAREHOLDERS UNDERTAKING................................................106
APPENDIX
A FORM OF TRANSFER CERTIFICATE............................................129
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THIS AGREEMENT is made the 3rd day of September One thousand nine hundred and
ninety-nine (1999) Between:
(1) SILICON MANUFACTURING PARTNERS PTE LTD (the "Borrower");
(2) ABN AMRO BANK N.V., SINGAPORE BRANCH, CITIBANK, N.A., SINGAPORE BRANCH and
OVERSEAS UNION BANK LIMITED (the "Lead Arrangers" and each a "Lead
Arranger");
(3) THE BANKS AND FINANCIAL INSTITUTIONS, listed under the heading "Lenders" at
the end of this Agreement (the "Lenders" and each a "Lender");
(4) CITICORP INVESTMENT BANK (SINGAPORE) LIMITED, (the "Facility Agent") as
facility agent for the Lenders; and
(5) CITICORP INVESTMENT BANK (SINGAPORE) LIMITED, (the "Security Agent") as
security agent for the Lenders.
WHEREAS:
(A) By a joint venture agreement dated 19th December 1997 between Chartered
Semiconductor Manufacturing Ltd and Lucent Technologies Microelectronics
Pte Ltd, they agreed to establish and operate a joint venture company in
Singapore for the equipping, installation, construction and operation of a
semiconductor wafers and circuits manufacturing plant.
(B) The Borrower was incorporated in Singapore on 3rd January 1998 to
establish, own and operate the Plant (defined below).
(C) The Lenders have agreed to make available to the Borrower the Facilities as
defined herein, in order to assist the Borrower in the financing of the
costs of the Project (defined below).
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS: In this Agreement, except to the extent that the context
requires otherwise:
"Advance" means an advance made or to be made by the Lenders to the
Borrower under the Tranche A Facility and/or the Tranche B[T] Facility or,
as the case may be, the
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principal amount of any such Advance, and "Advances" means two or more such
Advances;
"Agent" means Facility Agent or Security Agent (as the case may be), and
"Agents" means both of them;
"Agreed Form" in relation to any document means the form initialled by the
Facility Agent (acting in accordance with the instructions of the Lenders)
and the Borrower or such other form as they may agree from time to time;
"Annual Business Plan" means the Business Plan which is amended annually in
accordance with the Joint Venture Agreement;
"Approved Capital Expenditure" means, at any time, costs and expenses of a
capital (but not operating) nature (as construed in accordance with
generally accepted accounting principles in Singapore) incurred by the
Borrower in carrying out the Project as set out in the Business Plan
current at such time;
"Approved ▇▇▇▇▇▇" means the hedging agreements for interest or exchange
rates exposure arising from the Facilities between the Borrower and the
Approved Hedging Counterparties providing protection to the Borrower
against variations in interest rates or variations in exchange rates;
"Approved Hedging Counterparties" means (a) any of the Lead Arrangers, or
(b) any of the other Lenders which has a long term credit rating of not
less than A by Standard and Poor's Corporation or A2 by ▇▇▇▇▇'▇ Investor
Services Inc. that enters into an Approved Hedge with the Borrower;
"ASAD Agreement" means the assured supply and demand agreement dated 17th
February 1998 made between CSM, LTM and the Borrower;
"Assets" means all assets of the Borrower including future assets;
"Assignment of Contract Proceeds" means the assignment executed or to be
executed (as the context may require) by the Borrower in favour of the
Security Agent in respect of the assignment of the rights to payment of and
proceeds paid or payable to the Borrower under the ASAD Agreement and the
CSM Undertaking, as security for the Secured Liabilities;
"Authorised Signatory" means, at any time, in relation to the Borrower or a
Shareholder, any person who is duly authorised at such time to sign and
issue documents and certificates on behalf of the Borrower, or as the case
may be, such Shareholder and in respect of whom the Facility Agent has
received a certificate signed by a director or another Authorised Signatory
of the first-mentioned person setting out the name of and signature of such
person and confirming such person's authority to act;
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"Availability Period" means the period starting from Financial Close to (a)
in relation to the Tranche A Facility, the earlier of the date falling (i)
2.5 years from the date of the first Advance under the Tranche A Facility
and (ii) 2.75 years from the date of this Agreement; and (b) in relation to
the Tranche B Facility, the earlier of the date falling (i) 3 years from
the date of the first Advance or first issue of the EDB Guarantee, as the
case may be, under the Tranche B Facility and (ii) 3.25 years from the date
of this Agreement, but in no event shall the Availability Period for either
Tranche extend beyond the date on which the Commitments are cancelled
pursuant to Clauses 5.4 or 19.2.3 hereof;
"Available Cashflow" means in respect of any period, the sum of all
revenues of whatever kind and from whatever source received by the
Borrower, including interest and other returns paid on, and profits made on
the disposal of, Permitted Investments made pursuant to Clause 16.5, less
the aggregate of all operating expenses, Approved Capital Expenditure, any
changes in working capital, taxes and other non-Debt Service related costs
and other expenses made or paid by the Borrower during such period;
"Available Commitment" means, in relation to a Lender, its Commitment less
(a) that part of its Commitment (if any) which has been cancelled in
accordance with this Agreement and (b) its Outstandings and "Available
Commitments" means two or more such commitments;
"Available Tranche A Commitment" means, at any particular time, in relation
to a Tranche A Lender, its Tranche A Commitment less (a) that part of its
Tranche A Commitment (if any) which has been cancelled in accordance with
this Agreement and (b) the aggregate amount previously advanced by it under
the Tranche A Facility and "Available Tranche A Commitments" means the
commitments of all Tranche A Lenders;
"Available Tranche B Commitment" means, at any particular time, in relation
to a Tranche B Lender, its Tranche B Commitment less (a) that part of its
Tranche B Commitment (if any) which has been cancelled in accordance with
this Agreement, (b) in respect of Tranche B[T] Facility the aggregate
amount previously advanced by it under the Tranche B[T] Facility, and (c)
in respect of Tranche B[G] Facility, the aggregate amount of the maximum
actual and/or contingent liability of that Tranche B Lender under or in
connection with the EDB Guarantee and "Available Tranche B Commitments"
means the commitments of all Tranche B Lenders;
"Base Case" means the financial model in relation to the Project and its
implementation showing, inter alia, a milestone schedule, estimated CP
Date, schedule of disbursements under this Agreement and the relevant EDB
Financing Document, schedule of Equity Contribution, underlying assumptions
and financial projections including the D/E Ratio and Debt Service Coverage
Ratio, in the Agreed Form;
"Bridge Loan Agreement" means the Credit Agreement between the Borrower and
Citibank, N.A. dated 29th May 1998 for an amount up to US$150,000,000;
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"Business Day" means (a) in relation to (i) Tranche A Facility and (ii)
Tranche B[T] Facility where it is drawn in US Dollars, a day (other than
Saturday or Sunday) on which US Dollar deposits may be dealt in on the
London inter-bank market and on which commercial banks, the Lenders and the
Facility Agent are open for business in London and Singapore and, if on
that day a transfer of funds is to be made in US Dollars under this
Agreement, New York City and (b) in relation to Tranche B[T] Facility where
it is drawn in Singapore Dollars, a day (other than Saturday or Sunday) on
which Singapore Dollar deposits may be dealt in on the Singapore inter-bank
market, and on which commercial banks are open for business in Singapore
and, if on that day the Swap Rate is to be determined under this Agreement,
New York City;
"Business Plan" means the business plan which includes the Base Case,
incorporating amongst other things, the operating budget, approved by the
board of directors of the Borrower and as from time to time amended in
accordance with Clause 3 of the Joint Venture Agreement;
"Centre" means (a) in relation to Singapore Dollars, Singapore, and (b) in
relation to US Dollars, New York City;
"Commercial Production" means the date on which production of not less than
18,000 wafer starts per month utilising 21 mask layers of LTM's 0.25 micron
technology is achieved (and delivered "Ex-Work" as required in the ASAD
Agreement) as evidenced by delivery to the Facility Agent of a certificate
to that effect signed by the general manager of the Borrower;
"Commitment" means, in relation to a Lender and subject as provided in this
Agreement, the commitment of that Lender set opposite its name in Schedule
1 and "Commitments" means two or more such Commitments;
"Completion" means the date on which the Plant achieves commercial
production at the rate of an aggregate of not less than 26,000 wafer starts
per month utilising 21-mask layers of LTM's 0.25 micron technology;
"Contingency Shareholders Loan" means a loan to be extended by the
Shareholders severally to the Borrower up to a maximum of US$18,000,000 to
finance any shortfalls for payments of interest and principal under the
Facilities pursuant to the Shareholders Undertaking;
"Conversion Date" means the date on which the Borrower repays the Tranche
B[T] Outstandings pursuant to Clauses 2.1.3.2 and 2.1.4.2;
"CP Date" means the date falling on the earliest of:
(a) the first day falling 2.5 years from the date of initial drawdown of
the Facilities or any part thereof;
(b) the first day falling 2.75 years from the date of this Agreement; and
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(c) the first day of the first Interest Period falling after the Borrower
achieves Commercial Production;
"CSM" means Chartered Semiconductor Manufacturing Ltd., a company
incorporated in Singapore and having its registered office at 60, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇;
"CSM Undertaking" means the undertaking of CSM under Clause 2.2.2 of the
Shareholders Undertaking;
"Current Financial Report" means at any time, the then most recent
financial report delivered by the Borrower to the Facility Agent or the
Lenders pursuant to Clauses 15.2 and 15.3 including any update which has
been accepted by the Lenders;
"D/E Ratio" means at any particular time, the ratio of (a) the Total
Indebtedness to (b) Tangible Net Worth;
"Debenture" means the deed of debenture executed or to be executed (as the
context may require) by the Borrower in favour of the Security Agent in
respect of a charge over certain assets of the Borrower (both present and
future), as security for the Secured Liabilities;
"Debt Service" means, in relation to the Facilities and the EDB Loan, to
the extent guaranteed under the EDB Guarantee which is issued, on any date
or in respect of any period, the sum of (a) all amounts payable by the
Borrower in respect of scheduled principal payments in respect of
indebtedness relating thereto, (b) all amounts payable by the Borrower in
respect of interest (including default interest) in respect of indebtedness
relating thereto and (c) all fees and expenses including the guarantee
commission payable (in each case, upon the payment date thereof, by
acceleration or otherwise) thereunder and scheduled principal and interest
payments and all fees and expenses in relation to any New Debt outstanding
during such period payable by the Borrower in respect of such period;
"Debt Service Coverage Ratio" at any time means, the ratio of the Available
Cashflow for the full semi-annual period ("first semi-annual period")
preceding the date on which the said ratio is determined to the aggregate
amount of Debt Service for the full semi-annual period immediately after
the first semi-annual period;
"EDB" means the Economic Development Board of Singapore;
"EDB Cash Cover" means, in relation to the Tranche B[G] Facility, a deposit
into the EDB Cash Cover Account;
"EDB Cash Cover Account" means an account of the Security Agent named as
such opened or to be opened for the deposit of the EDB Cash Cover by the
Borrower under the terms of this Agreement;
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"EDB Financing Document" means the EDB loan agreement in form and substance
satisfactory to the Facility Agent executed or to be executed between (a)
the Borrower and (b) EDB relating to the EDB Loan;
"EDB Guarantee" means the guarantee on a several basis issued or to be
issued (as the context may require) by the Tranche B Lenders in favour of
the EDB under or pursuant to Clause 7 in substantially the form set out in
Schedule 10;
"EDB Loan" means at any time the aggregate principal amount advanced by the
EDB under the EDB Loan Facility (as reduced by any repayment or prepayment)
to the Borrower, at that time and all accrued and unpaid interest including
default interest;
"EDB Loan Facility" means the loan facility in an amount not exceeding
S$240,000,000 extended or to be extended (as the context may require) by
the EDB to the Borrower on the terms and subject to the conditions of the
EDB Financing Document;
"EDB Loan Repayment Schedule" means the dates and the principal amount(s)
of the EDB Loan to be repaid on such dates, as set out in Schedule B of
Schedule 10;
"Encumbrance" means (a) a mortgage, charge, pledge, lien or other
encumbrance securing any obligation of any person, (b) any arrangement
(excluding arrangements relating to any asset of the Borrower which has
been released by the Security Agent from the Security Interest) under which
money or claims to, or the benefit of, a bank or other account may be
applied, set off or made subject to a combination of accounts so as to
effect discharge of any sum owed or payable to any person or (c) any other
type of preferential arrangement (including any title transfer and
retention arrangement) having a similar effect;
"Environmental Claim" with respect to any person means any notice, claim,
demand or similar communication by any other person alleging potential
liability for investigatory costs, clean-up costs, governmental response
costs, natural resources damages, property damages, personal injuries,
fines or penalties arising out of, based on or resulting from any
environmental matters relating to the Project;
"Equity Contribution" means equity contribution made by the Shareholders in
accordance with the Shareholders Undertaking or Joint Venture Agreement, as
the case may be;
"Equity Contribution Commitment" means the several commitment by the
Shareholders to make Equity Contribution to the Borrower;
"Event of Default" means any of the events of default described in Clause
19.1;
"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 Tranche B Lenders under the EDB Guarantee which shall not be later than
30th November 2005
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"Facilities" means the Tranche A Facility and the Tranche B Facility;
"Facility Office" in relation to any Secured Creditor means the office
identified with its signature below (or, in the case of a Transferee, at
the end of the Transfer Certificate to which it is a party as Transferee)
or such other offices as it may select by notice to the Facility Agent;
"Fee Letters" means the fee letters between the Borrower and respectively
the Lead Arrangers and each of the Agents dated on or prior to the date of
this Agreement setting out the fees payable by the Borrower pursuant to
Clause 10 of this Agreement;
"Final Repayment Date" means (a) in relation to the Tranche A Facility, the
date on which the final instalment of the Tranche A Outstandings is repaid
under Clause 5.1, which shall be a date falling no later than 5.75 years
from the date of this Agreement, and (b) in relation to the Tranche B
Facility, the date falling 6.25 years from the date of this Agreement;
"Financial Close" means the date on which the first Advance is made in
accordance with the terms hereunder;
"Financing Documents" means this Agreement, the Security Documents and any
other agreement which it is agreed, between the Facility Agent and the
Borrower, constitutes a Financing Document for the purpose of this
Agreement and "Financing Document" means any of them;
"Force Majeure" means fire, flood, explosion, war, strike, embargo,
government requirement, civil or military authority, act of God, or other
similar causes beyond the control of the non-performing party and without
the fault or negligence of the delayed or non-performing party or its
subcontractors;
"Guarantee Fee" means, in relation to a Guarantee Fee Payment Date, the
guarantee fee computed at the applicable per annum rate specified below on
the Maximum Amount of the EDB Guarantee on that Guarantee Fee Payment Date
for the period commencing on that Guarantee Fee Payment Date and ending on
the next Guarantee Fee Payment Date, or the Expiry Date, if earlier (such
guarantee fee to be calculated on the basis of a 365 day year):
(a) prior to the CP Date, 1.45%;
(b) thereafter, where the D/E Ratio is:
(i) D/E Ratio > 2.0, 1.45%;
(ii) 1.5 < D/E Ratio < 2, 1.3%;
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(iii) 1 < D/E Ratio < 1.5, 1.2%; and
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(iv) D/E Ratio < 1, 1.1%;
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"Guarantee Fee Payment Date" means (a) the date of the first drawing under
the EDB Financing Document to be notified by the Borrower to the Lenders or
(b) the first day of each successive quarter thereafter (provided that no
Guarantee Fee Payment Date shall fall later than the Expiry Date);
"Guarantee Limit" means the Tranche B Commitments under the Tranche B[G]
Facility as from time to time reduced by the aggregate amounts of principal
repaid or prepaid by the Borrower to EDB;
"Holding Company" means, in relation to a Lender, its holding company which
is a bank regulated by the Bank of International Settlements capital
adequacy rules and by the applicable local monetary authority of the
country of incorporation;
"IDC" means all fees, interest, commission, charges, costs and expenses
payable by the Borrower under the Financing Documents and all hedging costs
payable by the Borrower under the Approved ▇▇▇▇▇▇ prior to Completion;
"Independent Insurance Consultant" means an insurance expert appointed by
the Facility Agent referred to in Clause 17.20.3 and being ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
at the date of this Agreement;
"Information Memorandum" means the document concerning the Borrower, its
Shareholders and the Project which, at the Borrower's request and on its
behalf, was prepared in relation to this transaction;
"Insurance Proceeds" means proceeds of the Insurances received by the
Borrower as loss payee or otherwise for its own account or received or
receivable by the Security Agent as loss payee, assignee or otherwise for
its own account or on behalf of any or all of the Secured Creditors;
"Insurances" means all policies and contracts of insurance which are now or
may hereafter be taken out or effected in respect of or in connection with
the Project or the Property or any part thereof, (whether in the sole name
of the Borrower or in the joint names of the Borrower and any party to any
Transaction Document) and shall include the Borrower's interest, if any, in
any reinsurances taken out in relation to such Insurances;
"Interest Payment Date" means the last day of an Interest Period;
"Interest Period" means the interest period of one (1), three (3) or six
(6) months as elected by the Borrower pursuant to Clause 6.1 or of three
(3) months' duration as provided in Clause 6.1.3 or a period by reference
to which interest is calculated on an Advance or overdue sum;
"Joint Venture Agreement" means the joint venture agreement dated 19th
December 1997 made between CSM and LTM;
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"JTC" means the Jurong Town Corporation, a body corporate incorporated
under the Jurong Town Corporation Act and having its head office at ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇;
"Lender" means any financial institution which is a Tranche A Lender or
Tranche B Lender and shall include any other bank or financial institution
which becomes a party hereto pursuant to a transfer in accordance with
Clause 27, and any reference herein to the "Lenders" shall, unless the
context otherwise requires, be construed as a reference to the Lenders and
each other bank or financial institution (if any) which shall have so
become a party hereto;
"LIBOR" means, in relation to any Advance or unpaid sum on which interest
for a specified period is to accrue:
(a) the rate per annum determined by the Facility Agent to be the
offered rate (if any) appearing on page 3750 of the Telerate
screen which displays the British Bankers Association Interest
Settlement Rate for deposits in US Dollars and for the specified
period or any equivalent successor to such page at or about 11
a.m. on the Quotation Date for the specified period; or
(b) if no such offered rate appears on the Telerate screen, such rate
per annum which is determined by the Facility Agent to be the
arithmetic mean (rounded upwards, if not already such a multiple,
to the nearest whole multiple of one-sixteenth of one per cent.)
of the offered rates (if any) appearing on the LIBO page of the
Reuters screen for deposits in US Dollars and for the specified
period or any equivalent successor to such page at or about 11
a.m. on the Quotation Date for the specified period; or
(c) if no such offered rate appears on the Reuters screen, the rate
per annum determined by the Facility Agent to be equal to the
arithmetic mean (rounded upwards, if not already such a multiple,
to the nearest whole multiple of one-sixteenth of one per cent.)
of the rates (as notified to the Facility Agent) at which each of
the Reference Banks was offering to prime banks in the London
Interbank Market deposits in US Dollars and for the specified
period at or about 11 a.m. on the Quotation Date for such period;
and, for the purposes of this definition, "specified period" means the
Interest Period of such Advance or, as the case may be, the period in
respect of which LIBOR falls to be determined in relation to such unpaid
sum;
"License and Technology Transfer Agreement" means the license and
technology transfer agreement dated 17th February 1998 made between CSM,
LTM and the Borrower;
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"LTM" means Lucent Technologies Microelectronics Pte. Ltd., a company
incorporated in Singapore and having its registered office at ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ #▇▇-▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇;
"Majority Lenders" means any Lender or collection of Lenders whose
outstandings (or, if there are no outstandings, Available Commitments)
amount in aggregate to 662/3% or more of the aggregate Outstandings (or, if
there are no outstandings, the aggregate Available Commitments) of all the
Lenders;
"Margin" means:
(1) in relation to the Tranche A Facility, the rate per annum
determined as follows:
(a) prior to the CP Date, 1.35%; and
(b) thereafter, where the D/E Ratio is:
(i) D/E Ratio > 2.0, 1.35%;
(ii) 1.5 < D/E Ratio < 2.0, 1.2%;
-
(iii) 1 < D/E Ratio < 1.5, 1.1%; and
-
(iv) D/E Ratio < 1.0, 1%;
(2) in relation to the Tranche B[T] Facility, the rate per annum
determined as follows:
(a) prior to the CP Date, 1.45%; and
(b) thereafter, where the D/E Ratio is:
(i) D/E Ratio > 2.0, 1.45%;
(ii) 1.5 < D/E Ratio < 2.0, 1.3%;
-
(iii) 1 < D/E Ratio < 1.5, 1.2%; and
-
(iv) D/E Ratio < 1.0, 1.1%;
"Material Adverse Effect" means an effect which would:
(a) (i) impair the ability of the Borrower or any Shareholder in any
capacity to perform or comply with its obligations under, (ii)
affect the legality, binding nature, validity or enforceability
of or (iii) cause the suspension, cancellation, revocation or
termination of, any of the Transaction Documents to which it is
expressed to be a party;
(b) impair the capacity, efficiency or performance of the whole or a
substantial part of the Project; or
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(c) impair the financial condition or business of the Borrower,
and, would do so in a manner or to an extent which in the reasonable
opinion of the Majority Lenders is materially prejudicial to the interests
of the Secured Creditors under the Financing Documents or in a manner or to
an extent which, in the reasonable opinion of the Majority Lenders, is
likely materially and adversely to affect the construction, operation,
maintenance or development of the Project;
"Maximum Amount" means, in relation to the EDB Guarantee, the total
contingent liabilities under the EDB Guarantee at any given time as reduced
pursuant to Clause 7.3 which shall not at any time be in excess of an
amount equal to S$240,000,000 less the aggregate of all principal
repayments and prepayments of the EDB Loan plus interest payable under the
EDB Loan for a six month period and default interest payable under the EDB
Loan subject to an aggregate cap of S$10,000,000;
"New Debt" means any debt of the Borrower other than under the Facilities
incurred after the date of this Agreement and as permitted by this
Agreement;
"Notice of Drawing" means a notice substantially in the terms set out in
Schedule 3;
"Obligors" means CSM and LTM, and such other parties as may be agreed in
writing between the Borrower and the Facility Agent from time to time to be
included as an Obligor, and "Obligor" means any of them;
"Operating Costs" means at any time the operating costs (as construed in
accordance with generally accepted accounting principles in Singapore) as
set out in the Business Plan current at such time;
"Original Scope Assets" means the assets of the Borrower within the
Original Scope of Project and includes all assets from any expansion of the
Project which affect or integrate with the operation of the Original Scope
of Project;
"Original Scope of Project" means the investment in all assets, and any
contractual requirements, contemplated in the Business Plan current as of
the date of this Agreement enabling the Borrower to produce 26,000 wafer
starts per month utilising 21 mask layers of LTM's 0.25 micron technology;
"Permitted Encumbrances" means:
(a) any Security Interests;
(b) liens arising solely by operation of law;
(c) liens arising in the ordinary course of the Borrower's business and
operating lease;
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(d) encumbrances created over equipment or inventory in favour of the
suppliers only for the purpose of securing the deferred payment of
purchase price of such equipment or inventory in the ordinary course
of business provided that in the case of an encumbrance over Original
Scope Assets such encumbrance shall be discharged (i) within twelve
(12) months of its creation and (ii) in any event before the expiry of
the Availability Period of the Tranche A Facility provided further
that conditions (i) and (ii) shall not apply to assets which are not
Original Scope Assets;
(e) any other security created with the prior consent in writing of the
Facility Agent; and
(f) any security given for New Debt and/or for any hedging for New Debt
both incurred in accordance with Clauses 17.21 and 17.22;
provided that in the case of (c) and (d), such liens and encumbrances shall
in aggregate not exceed US$50,000,000 or the equivalent thereof in any
other currency;
"Outstandings means the aggregate amount of the Tranche A Outstandings and
the Tranche B Outstandings;
"Permitted Investments" means:
(a) demand deposits, short term time deposits or short term certificates
of deposit with or issued by financial institutions incorporated under
the laws of Singapore and having at the time of deposit a rating of at
least A-1 by Standard and Poor's Corporation and at least P-1 by
▇▇▇▇▇'▇ Investor Services Inc. and in the event that ratings cease to
exist for any financial institution, the said financial institution
shall be deemed acceptable;
(b) demand deposits, short term time deposits or short term certificates
of deposit with financial institutions other than those referred to in
(a) above having a rating at the time of deposit of at least A by
Standard and Poor's Corporation or at least P-1 by ▇▇▇▇▇'▇ Investor
Services Inc.;
(c) commercial paper or promissory notes issued by any company having a
rating at the time of purchase of at least A-1 by Standard and Poor's
Corporation or at least P-1 by ▇▇▇▇▇'▇ Investor Services Inc. and
which obligations mature not more than 12 months after the date of
purchase;
(d) obligations maturing or capable of redemption by the holder not more
than 12 months after the date of purchase and issued or guaranteed by
the Government of Singapore; or
(e) any other investments permitted by the Majority Lenders;
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"Plant" means the wafer fabrication facilities occupied or to be occupied
and operated or to be operated (as the context may require in each
instance), by the Borrower on the Property;
"Potential Event of Default" means any event or circumstances which would
become (with the giving of notice, the passage of time, the making of any
determination or any combination thereof as provided in Clause 19.1) an
Event of Default;
"Project" means the equipping, installation, construction and subsequent
operation of the Plant undertaken by or on behalf of the Borrower on and
located on the Property;
"Project Accounts" means (a) a US$ account and (b) a S$ account opened or
to be opened (as the context may require) by the Borrower with the Project
Account Bank for the deposit into the US$ account all US$ receipts and into
the S$ account all S$ receipts of the Borrower including Advances drawndown
hereunder or under the EDB Loan Agreements, Equity Contribution,
Shareholders Loans, Insurance Proceeds, all revenues and all sums due to
the Borrower under the ASAD Agreement and "Project Account" means any of
these accounts;
"Project Account Bank" means Citibank, N.A., Singapore Branch, or such
other bank may be approved by the Majority Lenders where the Project
Accounts are opened or to be opened and maintained by the Borrower;
"Project Costs" means the cost of all design, construction, erection,
equipment, utilities diversion, financing fees, goods and services tax,
costs under the sub-lease agreements and insurance costs up to Completion
incurred by the Borrower for the completion of the Original Scope of
Project;
"Project Documents" means the documents listed in Schedule 5 and such other
documents entered into and from time to time entered into in respect of the
Project which is designated as a "Project Document" by agreement between
the Borrower and the Facility Agent;
"Property" means the land and premises together with the buildings erected
thereon at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and
comprised in Private Lots A12787(a) and A12787(b) of Mukim 13;
"Property Leases" means (a) the two building agreements both dated 17th
February 1998 made between JTC and STPL, (b) the agreements for sub-licence
and sub-lease both dated 17th February 1998 and made between STPL and CSM
and the Sub-Lease;
"Pro Rata" means in relation to a Lender its portion of the amounts
extended and guaranteed by the Lenders, being the portion each Lender's
Commitment bears to the Total Commitment;
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"Quotation Date" means in relation to any Interest Period for which an
interest rate is to be determined hereunder, the second Business Day before
the first day of that Interest Period;
"Reference Banks" means ABN AMRO Bank N.V., Citibank, N.A. and Overseas
Union Bank Limited;
"Related Corporations" means corporations related to the Borrower as
defined under Sections 5 and 6 of the Companies Act (Cap. 50);
"Repayment Date" means, in relation to Tranche A Facility any of the dates
referred to in Clause 5.1 for the payment of the principal instalments
under the Tranche A Outstandings and in relation to Tranche B[T] Facility,
any of the repayment dates set out in Schedule 11A or Schedule 11B (as the
case may be);
"Secured Creditors" means the Lead Arrangers, Lenders, Approved Hedging
Counterparties who have entered into a secured Approved Hedge, Facility
Agent and Security Agent and "Secured Creditor" means any of them;
"Secured Liabilities" means the sum total of the Borrower's liabilities to
the Secured Creditors whether actual or contingent, arising out of or in
connection with any of the Financing Documents or any secured Approved
▇▇▇▇▇▇ including, without limitation, interest, commission and all fees and
charges payable in respect of the Facilities including all other sums due
under the Financing Documents or any secured Approved ▇▇▇▇▇▇, at any given
time;
"Security Documents" means the documents set out in Schedule 6;
"Security Interests" means the security or any part thereof created
pursuant to or evidenced by all or any of the Security Documents;
"Shareholder" means either CSM or LTM and "Shareholders" means both of
them;
"Shareholders Loans" means all loans made in favour of the Borrower by the
Shareholders;
"Shareholders Undertaking" means the agreement in form and substance
satisfactory to the Lenders entered into on or about the date of this
Agreement between the Shareholders, the Borrower and the Security Agent, as
security for the Secured Liabilities containing inter alia the undertakings
from the Shareholders as set out in Schedule 12;
"Shares" means the shares in the issued and paid-up capital of the
Borrower;
"Singapore Dollars" or "S$" means the lawful currency of Singapore;
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"Sponsors" means Lucent Technologies International Inc. and STPL;
"STPL" means Singapore Technologies Pte Ltd, a company incorporated in
Singapore and having its registered office at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ #▇▇-▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇;
"Sub-Lease" means the sub-lease agreement dated 17th February 1998 made
between CSM and the Borrower;
"Swap Rate" on any date shall have the meaning set out in Schedule 7;
"Tangible Net Worth" means, at any particular time but without double
counting, the sum of:
(a) the amount paid up or credited as paid up on the issued share capital
of the Borrower (other than any redeemable share capital);
(b) the amount standing to the credit of the capital and revenue reserves
of the Borrower; and
(c) the aggregate outstanding amount of all indebtedness of the Borrower
to either Shareholder or any Related Corporation of the Borrower which
are subordinated to the Secured Liabilities,
as set out in the then Current Financial Report, but less any amount
included in the above which is attributable to:
(i) 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;
(ii) goodwill or other intangible assets;
(iii) amounts set aside for taxation;
(iv) minority interests in subsidiaries;
(v) 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
(vi) 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;
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"Total Commitments" means, at any time, the aggregate of the Commitments of
all the Lenders;
"Total Indebtedness" 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 or contingent) other than the Contingency Shareholders' Loan and, to
the extent not otherwise taken into account, shall in any event include:
(a) any indebtedness for moneys borrowed or raised by the Borrower;
(b) 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;
(c) any indebtedness under any acceptance or other credit opened on behalf
of the Borrower;
(d) the principal amount of any factored debts and discounted receivables
for which there is recourse to the Borrower;
(e) 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
(f) 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 either Shareholder or any
Related Corporation of the Borrower which is subordinated to the Secured
Liabilities;
"Tranche A Commitment" means, in relation to a Tranche A Lender and subject
as provided in this Agreement, the Commitment of that Tranche A Lender
under the Tranche A Facility set opposite its name in Part A of Schedule 1
and "Tranche A Commitments" means such commitments of all Tranche A
Lenders;
"Tranche A Facility" means the term loan facility extended or to be
extended (as the context may require) by the Tranche A Lenders to the
Borrower pursuant to Clauses 2.1.1 and 4.1;
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"Tranche A Lenders" means the Lenders set out in Part A of Schedule 1 and
their successors, permitted assignees and permitted transferees;
"Tranche A Outstandings" means the aggregate principal amount advanced by
the Tranche A Lenders under the Tranche A Facility as reduced by any
repayment or prepayment at that time together with accrued interest and all
sums owing under the Tranche A Facility;
"Tranche B Commitment" means, in relation to a Tranche B Lender and subject
as provided in this Agreement, the Commitment of that Tranche B Lender
under the Tranche B Facility set opposite its name in Part B of Schedule 1
and "Tranche B Commitments" means such commitments of all Tranche B
Lenders;
"Tranche B Facility" means the Tranche B[G] Facility or, as the case may
be, the Tranche B[T] Facility which in the aggregate shall not at any time
exceed S$250,000,000 if drawn in Singapore Dollars or US$145,000,000 if
drawn in US Dollars;
"Tranche B Lenders" means the Lenders set out in Part B of Schedule 1 and
their successors, permitted assignees and permitted transferees;
"Tranche B[G] Facility" means the S$ guarantee facility extended or to be
extended (as the context may require) by the Tranche B Lenders to the
Borrower pursuant to Clauses 2.1.2 and 7;
"Tranche B[G] Outstandings" means the sum of (i) the aggregate amount of
the maximum actual and/or contingent liability of the Tranche B Lenders
under or in connection with the EDB Guarantee, (ii) the amounts paid by the
Tranche B Lenders under or in connection with the EDB Guarantee and not
reimbursed by the Borrower to it under this Agreement at that time and
(iii) accrued interest and all sums owing under the Tranche B[G] Facility
at that time; or
"Tranche B[T] Facility" means the US$ term loan facility or S$ term loan
facility extended or to be extended (as the context may require) by the
Tranche B Lenders to the Borrower pursuant to Clauses 2.1.2 and 4.2;
"Tranche B[T] Outstandings" means the aggregate principal amount advanced
by the Tranche B Lenders under the Tranche B[T] Facility as reduced by any
repayment or prepayment accrued interest and all sums owing under the
Tranche B[T] Facility at that time;
"Transaction Documents" means the Financing Documents and the Project
Documents;
"Transfer Certificate" means a certificate substantially in the form set
out in Appendix A signed by a Lender and a Transferee whereby:
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(a) such Lender seeks to procure the transfer to such Transferee of all or
a part of such Lender's rights and obligations hereunder upon and
subject to the terms and conditions set out in Clause 27.3; and
(b) such Transferee undertakes to perform the obligations it will assume
as a result of delivery of such certificate to the Facility Agent as
is contemplated in Clause 27.3;
"Transfer Date" means in relation to any Transfer Certificate, the date of
making of the transfer as specified in such Transfer Certificate;
"Transferee" means a bank or financial institution to which a Lender seeks
to transfer all or part of such Lender's rights and obligations hereunder;
"Transferor" means a Lender which seeks to transfer all or part of its
rights and obligations under the Financing Documents;
"US Dollars" or "US$" means the lawful currency of the United States of
America; and
"Y2K Program" means a program which, in the Borrower's reasonable opinion
(taking into account the practice of comparable companies operating in the
same industry), is designed to address adequately and on a timely basis the
"Year 2000 Issue" (that is, the risk that material assets, processes and
technologies used by the Borrower may be unable to recognise and perform
properly date-sensitive functions involving certain dates prior to and any
date after 31 December 1999) affecting the material operations of the
Borrower in generally the same manner in which the Year 2000 Issue is being
so addressed by other comparable companies operating in the same industry
as that of the Borrower.
1.2 CONSTRUCTION OF CERTAIN REFERENCES: Except to the extent that the context
requires otherwise, any reference in this Agreement to:
an "agreement" also includes a deed;
any agreement (including this Agreement), deed, contract, licence,
indenture, instrument, or any other document includes such agreement, deed,
contract, licence, indenture, instrument or document as from time to time
amended, renewed, supplemented, novated or modified;
the "assets" of any person shall be construed as a reference to the whole
or any part of its business, undertaking, property, assets and revenues
including rights to receive revenues and uncalled capital from issued but
not fully paid up shares;
any accounting term or expression which is not otherwise defined is to be
construed or interpreted in accordance with generally accepted accounting
principles in Singapore;
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"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);
a "consent" also includes an approval, authorisation, exemption, filing,
licence, order, permission, recording or registration (and references to
obtaining consents shall be construed accordingly);
"current exchange rate" in relation to any amount denominated in Singapore
Dollars, the spot rate of exchange determined by the Facility Agent based
on quotes by the Reference Banks at or about 11 a.m. for the purchase of US
Dollars with Singapore Dollars for delivery two (2) Business Days
thereafter;
a "directive" includes any present or future directive, regulation or
request requirement (in each case, whether or not having the force of law
but, if not having the force of law, the compliance with which is in
accordance with the general practice of persons to whom the directive is
addressed);
the "dissolution" of a person also includes the winding-up or liquidation
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;
a "guarantee" also includes 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;
"hedging" includes any interest rate swap, currency swap, forward foreign
exchange transaction, cap, floor, collar or option transaction or any
combination thereof or any other transaction entered into in connection
with protection against or benefit from fluctuation in any rate or price;
"indebtedness" includes any obligation (whether present or future, actual
or contingent, secured or unsecured, as principal or surety) for the
payment or repayment of money;
"include", "includes", "included" or "including" shall be construed as a
reference to "include", "includes", "included" or "including", in each
case, without limitation;
a "law" shall be construed as any law (including common or customary law),
statute, constitution, decree, judgement, treaty, regulation, bye-law,
order or any other legislative measure in each case of any jurisdiction
whatsoever;
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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);
"provision of any statute or any regulation made thereunder" shall be
deemed also to refer to any statutory modification or extension or
re-enactment thereof or any statutory instrument, order or regulation made
under such re-enactment thereto;
"repay" (or any derivative form thereof) shall, subject to any contrary
indication, be construed to include "prepay" (or, as the case may be, the
corresponding derivative form thereof);
"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);
"tax(es)" includes any present or future tax, levy, impost, duty, charge,
fee, deduction or withholding of any nature and whatever called, by
whomsoever and wherever imposed, levied, collected, withheld or assessed in
Singapore;
"tax on overall net income" of a person shall be construed as a reference
to tax imposed by the jurisdiction in which (a) (in the case of a Lender)
its Facility Office or (b) (in the case of any other person) its principal
office is located on all or part of the net income, profits or gains of
that person (whether worldwide, or only insofar as such income, profits or
gains are considered to arise in or to relate to a particular jurisdiction,
or otherwise);
a "time of the day" is to Singapore time unless otherwise stated;
a "day, month, quarter or year" shall be construed by reference to the
Gregorian calendar;
a "successor" shall be construed so as to include an assignee or successor
in title of such party and any person who under the laws of its
jurisdiction of incorporation or domicile has assumed the rights and
obligations of such party under any Transaction Document or to which, under
such laws, such rights and obligations have been transferred; and
the "winding-up", "dissolution" or "administration" of a company or
corporation shall be construed so as to include any equivalent or analogous
proceedings under the law of the jurisdiction in which such company or
corporation is incorporated or any jurisdiction in which such company or
corporation carries on business including the seeking of liquidation,
winding-up, reorganisation, dissolution, administration, judicial
management, arrangement, adjustment, protection or relief of debtors.
1.3 HEADINGS: The headings and content pages in this Agreement are inserted for
convenience only and shall be ignored in construing this Agreement. Unless
the context requires, words denoting the singular number only shall include
the plural and vice versa. The words "written" and "in writing" include
printing, engraving, lithography or other
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means of visible reproduction. References to "Clauses", "Schedules" and
"Appendices" unless the context requires otherwise, are to be construed
as references to Clauses of and schedules and appendices to this
Agreement.
1.4 Any reference herein or in any Financing Document to the "relevant
Project Account", the "appropriate Project Account" or the "applicable
Project Account" shall be construed as a reference to, where the amount
to be credited or debited to such Project Account is denominated in US
Dollars, the Project Account applicable to such payment which is
maintained in US Dollars and, where the amount to be credited or debited
to such Project Account is denominated in Singapore Dollars, the Project
Account applicable to such payment which is maintained in Singapore
Dollars.
1.5 All calculations or determinations to be made under the Financing
Documents shall, if such calculation or determination is to be made by
reference to Singapore Dollars, be made with amounts in Singapore
Dollars expressed in US Dollars and for the purposes of conversion so as
to enable calculations to be made in US Dollars, by applying the then
prevailing current exchange rate save for the purpose of Clauses 15.8
and 15.9 in relation to which the exchange rate used in Current
Financial Report shall apply.
2. PURPOSE AND USE OF THE FACILITIES
2.1 AVAILABILITY: The Borrower and the Shareholders have requested the
Lenders and the Lenders have agreed to make available to the Borrower
the following Facilities, for the purposes herein stated upon the terms
and subject to the conditions of this Agreement:
2.1.1 TRANCHE A FACILITY: the Tranche A Lenders have agreed to extend
to the Borrower a term loan facility in an aggregate amount not
exceeding US$300,000,000;
2.1.2 TRANCHE B FACILITY: the Tranche B Lenders have agreed to extend
to the Borrower at the Borrower's election:
2.1.2.1 the Tranche B[T] Facility in an amount not exceeding
S$240,000,000 or US$145,000,000; or
2.1.2.2 the Tranche B[G] Facility in an amount not exceeding
S$250,000,000 inclusive of interest on the EDB Loan and
default interest in aggregate up to S$10,000,000;
2.1.3 TRANCHE B[T] FACILITY: subject to the terms and conditions of
this Agreement and in particular to all the conditions in Clause
3 and Clause 4 being satisfied:
2.1.3.1 if the Borrower elects during the Availability Period to
utilise the Tranche B[T] Facility, it shall in its
Notice of Drawing
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made pursuant to Clause 4.2.1.1 stipulate the currency
and amount of the Advance to be drawn. The Tranche B[T]
Facility shall be drawn as one Advance and any undrawn
amounts shall be cancelled. No cancellation fee will be
payable; and/or
2.1.3.2 the Borrower may after drawing on the Tranche B[T]
Facility elect at any time during the Availability
Period of the Tranche B Facility, to make one drawdown
under the Tranche B[G] Facility (and such drawing may be
made up to a maximum of S$250,000,000), upon giving the
Facility Agent not less than five (5) Business Days'
prior written notice. Such notice shall be accompanied
by the executed EDB Financing Document and evidence
satisfactory to the Facility Agent that the full amount
of the EDB Loan Facility when drawn would be sufficient
to repay the Tranche B[T] Outstandings in the currency
in which the Advance is made or if insufficient,
evidence satisfactory to the Facility Agent that the
Borrower has additional funds from the Tranche A
Facility, equity or its cashflow to repay such shortfall
on the proposed drawdown date;
2.1.4 TRANCHE B[G] FACILITY: subject to the terms and conditions of
this Agreement and in particular to all the conditions in Clause
3 and 7 being satisfied:
2.1.4.1 if the Borrower elects to utilise the Tranche B[G]
Facility, it shall by a Request for Issue of EDB
Guarantee accompanied by an executed copy of the EDB
Financing Document give the Facility Agent not less than
five (5) Business Days' notice of such election and
request for the issuance of the EDB Guarantee; or
2.1.4.2 in the event that the Borrower elects to utilise the
Tranche B[G] Facility after it has drawn on the Tranche
B[T] Facility under Clause 2.1.3.1, it shall subject to
compliance with Clause 2.1.3.2 repay in full the Tranche
B[T] Outstandings in the currency in which the Advance
is made on the date of issuance of the EDB Guarantee
whereupon the Tranche B[T] Facility shall be cancelled.
No cancellation fee shall be payable.
2.2 PURPOSE: The Facilities shall be utilised by the Borrower as follows:
2.2.1 the proceeds of the Tranche A Facility and the Tranche B[T]
Facility shall be utilised by the Borrower:
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(a) to be applied towards payment of all outstanding
indebtedness of the Borrower, including accrued interest
and any fees payable under the Bridge Loan Agreement
save that the amount payable towards the principal
amount of any such outstanding indebtedness shall not
exceed US$150,000,000; and/or
(b) to pay for Project Costs and working capital
requirements of the Borrower; and/or
(c) to pay for IDC accrued under the Tranche A Facility;
and/or
(d) to pay for any IDC accrued on the Tranche B[T] facility
accrued to the Lenders from the date of first drawdown
of the Tranche B[T] Facility up to and including the
Conversion Date; and
2.2.2 the Tranche B[G] Facility shall be utilised for the issuance of
the EDB Guarantee as security for the EDB Loan.
2.3 APPLICATION: Without prejudice to the obligations of the Borrower under
Clause 2.2, neither the Agents nor any of the Lenders shall be obliged
to concern themselves with the application of the amounts raised by the
Borrower hereunder.
3. CONDITIONS PRECEDENT
3.1 TO FIRST ADVANCE: Subject to the terms and conditions herein contained,
the Borrower may not deliver the first Notice of Drawing or Request for
Issue of EDB Guarantee unless the following conditions have been
satisfied:
3.1.1 the Facility Agent has received all the documents and evidences
listed in Schedule 2 in Agreed Form or in form and substance
satisfactory to the Facility Agent (acting on the instructions
of the Lenders);
3.1.2 the Borrower has opened the Project Accounts with the Project
Account Bank; and
3.1.3 there being no material adverse change in the assets and
financial condition of the Sponsors, since the date of the
Sponsor's latest financial statements which will have a material
adverse effect on the Borrower's ability to repay the Facilities
or the Shareholders' ability to fulfil their respective
obligations under the ASAD Agreement.
3.2 TO FIRST AND SUBSEQUENT ADVANCES: The Borrower may not deliver any
Notice of Drawing or Request for Issue of EDB Guarantee unless the
following conditions have been satisfied:
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3.2.1 no Event of Default or Potential Event of Default has occurred
and is continuing;
3.2.2 all representations and warranties in the Financing Documents
are true and correct in all material respects when made or
deemed repeated; and
3.2.3 there being no material adverse change in the assets and
financial condition of the Borrower or Shareholders, since the
date of the Borrower's Current Financial Report or, as the case
may be, the Shareholders' latest financial statement, and no
event which has a material adverse effect on the Shareholder
affecting the Borrower's ability to repay the Facilities or the
Shareholder's ability to fulfil their respective obligations
under the ASAD Agreement.
4. THE FACILITIES
4.1 CONDITIONS OF UTILISATION OF TRANCHE A FACILITY:
4.1.1 NOTICE OF ADVANCE: Subject to the provisions of this Agreement,
Advances under the Tranche A Facility will be made by the
Tranche A Lenders to the Borrower if:
4.1.1.1 not later than 10 a.m. on the fifth Business Day before
the proposed Advance date, the Facility Agent has
received from the Borrower a Notice of Drawing
substantially in the form set out in Schedule 3,
specifying:
(a) the proposed Advance date, which must be a
Business Day falling within the Availability
Period relating to the Tranche A Facility and is
not less than five (5) Business Days after the
date upon which the immediately preceding
Tranche A Advance, if any, is made;
(b) the proposed amount of that Advance which must
be an amount equal to or less than the Available
Tranche A Commitment and, if less than the
Available Tranche A Commitment, must be
US$10,000,000 or a higher whole multiple of
US$1,000,000;
(c) the Interest Period relating to that Advance;
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(d) the manner in which the proceeds of that Advance
is to be made available to the Borrower;
4.1.1.2 not later than 10 a.m. on the proposed Advance date, the
Facility Agent has received and found satisfactory such
additional information, legal opinions and/or other
documents which are in the Borrower's possession or
which may be procured by the Borrower and which are
relevant in the context of or relating to the Financing
Documents, as the Facility Agent may reasonably request
in good faith not later than 10 a.m. on the second
Business Day before the proposed Advance date as a
result of circumstances which have arisen or come to its
attention since the date of this Agreement; and
4.1.1.3 either (a) no Event of Default or Potential Event of
Default has occurred and is continuing and (b) all
representations and warranties in the Financing
Documents are true and correct in all material respects
when made or deemed repeated on the date of the proposed
Advance by reference to the circumstances then existing
or each of the Tranche A Lenders agrees (notwithstanding
any matter mentioned at (a) or (b) above that has been
disclosed to the Tranche A Lenders in writing prior to
the relevant date of the proposed Advance) to
participate in the making of such Tranche A Advance.
4.1.2 RECEIPT OF NOTICE: Subject to Clause 4.1.1 above, when the
Facility Agent actually receives a Notice of Drawing it shall
notify each of the Tranche A Lenders promptly of the proposed
amount and date of the Advance, and each Tranche A Lender will,
subject to the provisions hereof participate through its
Facility Office in each Advance made pursuant to Clause 4.1.1
above in the proportion borne by its Tranche A Commitment to the
Tranche A Facility.
4.1.3 SUPPORTING DOCUMENTS: Each Notice of Drawing for an Advance to
be utilised towards payment of Project Costs pursuant to Clause
4.1.1, shall be supported by, until Commercial Production, a
certificate signed by a director or an Authorised Signatory of
the Borrower that such drawdown is for the purchase of equipment
costing a stated sum.
4.1.4 LIMIT OF ADVANCE: Each Advance to be utilised for the purchase
of equipment under the Tranche A Facility drawn for the purposes
stated in Clause 4.1.3 shall not exceed the sum stated in the
certificate referred to in Clause 4.1.3.
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4.1.5 EFFECTIVE AND BINDING NOTICE: Every Notice of Drawing shall be
irrevocable and effective only upon receipt by the Facility
Agent, and the Borrower shall be obliged to borrow in accordance
with the terms stated in such notice.
4.1.6 REDUCTION OF AVAILABLE COMMITMENT: If the Available Commitment
is reduced after the Facility Agent receives a Notice of Drawing
and such reduction was not taken into account in the calculation
of the Available Commitment then the amount of the Advance shall
be reduced accordingly.
4.1.7 CANCELLED FACILITY: Principal amounts of the Tranche A Facility
not drawndown by the expiry of the Availability Period of the
Tranche A Facility shall be cancelled and shall not be
reinstated.
4.2 CONDITIONS OF UTILISATION OF TRANCHE B[T] FACILITY:
4.2.1 NOTICE OF DRAWING: Subject to the provisions of this Agreement
and in particular those of Clause 2 and Clause 3, the Borrower
may make one drawdown under the Tranche B[T] Facility if:
4.2.1.1 not later than 10 a.m. on the fifth Business Day before
the proposed Advance date, the Facility Agent has
received from the Borrower a Notice of Drawing
substantially in the form set out in Schedule 3
specifying:
(a) the proposed Advance date, which must be a
Business Day falling within the Availability
Period relating to the Tranche B Facility;
(b) the Interest Period relating to that Advance;
(c) the manner in which the proceeds of that Advance
is to be made available to the Borrower;
4.2.1.2 not later than 10 a.m. on the proposed Advance date, the
Facility Agent has received and found satisfactory such
additional information, legal opinions and/or other
documents which are in the Borrower's possession or
which may be procured by the Borrower and which are
relevant in the context of or relating to the Financing
Documents, as the Facility Agent may reasonably request
in good faith not later than 10 a.m. on the second
Business Day before the proposed Advance date as a
result of circumstances which have arisen or come to its
attention since the date of this Agreement; and
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4.2.1.3 either (a) no Event of Default or Potential Event of
Default has occurred and is continuing and (b) all
representations and warranties made in the Financing
Documents are true and correct in all material respects
when made or deemed repeated on the proposed Advance
date by reference to the circumstances then existing or
each of the Tranche B[T] Lenders agrees (notwithstanding
any matter mentioned at (a) or (b) above that has been
disclosed to the Tranche B[T] Lenders in writing prior
to the relevant proposed Advance date) to participate in
the making of such Tranche B[T] Advance.
4.2.2 RECEIPT OF NOTICE: Subject to Clause 4.2.1 above, when the
Facility Agent actually receives a Notice of Drawing it shall
notify each of the Tranche B Lenders promptly of the proposed
amount and date of the Advance, and each Tranche B Lender will,
subject to the provisions hereof participate through its
Facility Office in each Advance made pursuant to Clause 4.2.1
above in the proportion borne by its Tranche B Commitment to the
Tranche B Facility.
4.2.3 EFFECTIVE AND BINDING NOTICE: Every Notice of Drawing shall be
effective only upon receipt by the Facility Agent and be
irrevocable and the Borrower shall be obliged to borrow in
accordance with the terms stated in such notice.
4.2.4 CANCELLED FACILITY: Principal amounts of the Tranche B[T]
Facility not drawndown by the expiry of Availability Period of
the Tranche B Facility or on the Conversion Date whichever is
the earlier, shall be deemed to be cancelled.
5. REPAYMENT, PREPAYMENT AND CANCELLATION
5.1 REPAYMENT OF TRANCHE A FACILITY: The Borrower shall repay the principal
amounts under the Tranche A Outstandings in US Dollars in seven (7)
equal semi-annual instalments, as set out in Schedule 8. The Facility
Agent shall upon the expiry of the Availability Period, provide to the
Lenders and the Borrower certificates (which shall become an integral
part of this Agreement) setting out the aggregate of Advances made under
the Tranche A Facility and a schedule of repayments calculated in
accordance with Schedule 8 setting out the amounts repayable on each
Repayment Date in accordance with this Clause 5. Any such certificate
shall be conclusive and binding on all parties save in the case of
manifest error.
5.2 REPAYMENT OF TRANCHE B[T] FACILITY: The Borrower shall repay the Tranche
B[T] Outstandings in the currency in which it is outstanding and if in
Singapore Dollars, in
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accordance with the dates specified in Schedule 11A and in the case of
US Dollars, in accordance with the dates specified in Schedule 11B
Provided that in the event that the Borrower elects to utilise the
Tranche B[G] Facility after it has drawn on the Tranche B[T] Facility
under Clause 2.1.3.1, it shall subject to compliance with Clause 2.1.3.2
repay in full the Tranche B[T] Outstandings in the currency in which the
Advance is made on the date of issuance of the EDB Guarantee whereupon
the Tranche B[T] Facility shall be cancelled.
5.3 PREPAYMENT OF FACILITIES:
5.3.1 The Borrower may, by giving the Facility Agent not less than
thirty (30) days' prior written notice (a) prepay any Advance or
any part of it on an Interest Payment Date relating to that
Advance which is US$10,000,000 or a higher whole multiple of
US$5,000,000 or the remaining Advances outstanding under the
Tranche A Facility or the Tranche B[T] Facility, as the case may
be, or (b) discharge in whole or in part or otherwise reduce the
Maximum Amount otherwise than by a repayment of the EDB Loan in
accordance with the EDB Loan Repayment Schedule (which for the
purposes of this Clause 5.3 shall be deemed a prepayment of the
Tranche B[G] Facility) together in each case, with the
prepayment fee referred to in Clause 5.3.6, and accrued interest
on the amounts prepaid, and if the EDB Guarantee is to be
discharged in whole, written confirmation from EDB that the EDB
Guarantee will be so discharged on the date specified in such
notice. If a partial prepayment is to be made during the
Availability Period, the Borrower shall furnish together with
the notice of prepayment evidence reasonably satisfactory to the
Lenders that the Borrower has sufficient funds to complete the
Project.
5.3.2 If (a) the Borrower becomes obliged to pay any tax or other
amount for the account of any Lender under Clause 11.2 or 12.2
or the Facility Agent gives a notification on behalf of any
Lender under Clause 11.4, and (b) the Borrower gives to that
Lender not less than ten (10) days' notice of the date of
prepayment, the Borrower may prepay all (but not part only) of
that Lender's share of the Advances without premium or
prepayment fee. Upon the Facility Agent receiving that notice,
that Lender's Commitment (if any) shall be cancelled. Any such
prepayment must be accompanied by accrued interest on that
Lender's share of the Advances and by any other sum then due to
that Lender under Clause 21.1 or any other provision of this
Agreement.
5.3.3 All Insurance Proceeds in respect of total loss of a substantial
portion of the Project, declared by the insurers, required to be
paid into the Project Accounts pursuant to Clause 16.2.7 shall
be applied immediately towards prepayment of the Outstandings.
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5.3.4 Any prepayments made pursuant to Clause 5.3.1 above shall be
applied towards reduction of the Tranche A Outstandings or
Tranche B[T] Outstandings, as the case may be, in the inverse
order of maturity. Any prepayments made pursuant to Clause 5.3.2
shall be applied to reduce the Tranche A Outstandings and
Tranche B Outstandings in respect of Tranche B[T] Facility owed
to the relevant Lender. Any prepayments made pursuant to Clause
5.3.3 and prepayments not otherwise specified for Tranche A
Outstandings or Tranche B[T] Outstandings shall be applied so as
to reduce the Tranche A Outstandings and Tranche B[T]
Outstandings rateably.
5.3.5 Any notice of prepayment given by the Borrower under this
Agreement will oblige the Borrower to prepay in accordance with
that notice. The Borrower cannot prepay all or any part of the
Outstandings except as expressly provided in this Agreement, and
amounts prepaid may not be re-borrowed; any amount prepaid as
aforesaid shall cause the Tranche A Commitments or the Tranche B
Commitments (as the case may be) or both to be accordingly
reduced.
5.3.6 The Borrower shall in respect of amounts prepaid pursuant to
Clause 5.3.1 within (a) the first two (2) years of the date of
this Agreement, and (b) the third and fourth year of the date of
this Agreement, pay a prepayment fee of 1% and 0.5% respectively
on such sums prepaid during the said period. No prepayment fee
will be levied in respect of sums prepaid after the fourth year
of this Agreement.
5.3.7 No partial payment of the Outstandings or any part thereof shall
relieve the Borrower of its obligation under the Financing
Documents except to the extent of the amount prepaid (plus the
amount of all previous prepayments, if any).
5.4 CANCELLATION OF FACILITIES:
5.4.1 The Borrower may, by giving the Facility Agent not less than
thirty (30) days' prior written notice, cancel any undrawn or
unutilised portion of the Tranche A Facility, Tranche B[T]
Facility and Tranche B[G] or any of them Provided Always that in
relation to a cancellation of the Tranche B Facility, the
Borrower shall submit together with the notice of cancellation
evidence reasonably satisfactory to the Lenders that it has
sufficient funds to complete the Project.
5.4.2 If the Borrower becomes obliged to pay any tax or other amount
for the account of any Lender under Clause 11.2 or 12.2 or the
Facility Agent gives a notification on behalf of any Lender
under Clause 11.4, the Borrower may cancel all (but not part
only) of that Lender's Commitment without premium penalty or
cancellation fee at any time within the
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Availability Period by giving to that Lender not less than ten
(10) days' notice of the date of the cancellation.
5.4.3 Any notice of cancellation given by the Borrower shall be
irrevocable and effective only upon receipt by the Facility
Agent, and will oblige the Borrower to cancel the Facilities or
any part thereof in accordance with that notice, except in the
instance where the evidence provided to the Lenders pursuant to
Clause 5.4.1 is not reasonably satisfactory to them.
5.4.4 The Borrower shall, in respect of amounts cancelled, under
Clause 5.4.1 within (a) the first two (2) years of this
Agreement, and (b) the third and fourth year of this Agreement,
pay a cancellation fee of 1% and 0.5% respectively on the
amounts cancelled. No cancellation fee will be levied in respect
of sums cancelled after the fourth year of this Agreement. The
Borrower shall pay such cancellation fee on the expiry of the
notice referred to in Clause 5.4.1.
5.4.5 The Borrower may not cancel all or any part of the Facilities
except as expressly provided in this Agreement, and amounts
cancelled may not be reinstated, re-borrowed or re-drawn
hereunder.
6. INTEREST
6.1 INTEREST PERIODS: The Borrower shall in a notice to be received by the
Facility Agent not later than 11 a.m. (Singapore time) on the fourth
Business Day before the first day of the relevant Interest Period opt
for an interest period of one (1), three (3) or six (6) months' duration
save that prior to 30th November 1999 the Borrower may opt for an
interest period of one (1) week, unless such option shall have been made
by the Borrower in the Notice of Drawing. The first Interest Period
relating to an Advance shall begin on the date of drawdown of that
Advance and each subsequent Interest Period of that Advance shall begin
on the last day of the previous Interest Period except that:
6.1.1 in the case of each Advance other than the first Advance, the
first Interest Period in respect of each such subsequent Advance
shall commence on the drawdown date of that Advance and end on
the same day as the expiry date of the then current Interest
Period in respect of any previous Advance, so that each such
subsequent Advance shall be consolidated with the previous
Advance and dealt with as a single Advance for the purpose of
selecting an Interest Period;
6.1.2 an Interest Period which would otherwise extend beyond the
applicable Final Repayment Date shall instead end on that Final
Repayment Date; and
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6.1.3 subject to the above exception, any Interest Period for which no
such selection notice is received by the Facility Agent shall be
of three (3) months' duration.
6.2 INTEREST RATES:
6.2.1 The rate of interest applicable to an Advance for a particular
Interest Period shall be the rate per annum (as determined by
the Facility Agent on the Quotation Date) equal to the sum of
the applicable Margin and (i) LIBOR, in the case of Tranche A
Facility or in the case where Tranche B[T] Facility is drawn in
US Dollars or (ii) Swap Rate, in the case of Tranche B[T]
Facility drawn in Singapore Dollars. Interest at the rate
aforesaid shall be calculated and based on a 360 day year for
US$ Advances and a 365-day year for S$ Advances under the
Tranche B[T] Facility.
6.2.2 The Facility Agent shall promptly notify the Borrower of each
rate of interest determined in accordance with Clause 6.2.1
above.
6.3 NO QUOTATION: If the Facility Agent does not receive a quotation of the
relevant rate from the Reference Banks, in order for the Facility Agent
to determine the applicable LIBOR or Swap Rate in relation to any
Interest Period, Clause 11.3 shall apply.
6.4 PAYMENT OF INTEREST: The Borrower shall pay the unpaid interest accrued
during that Interest Period on the Advance to which it relates at the
rate applicable to that Interest Period, and subject as otherwise
provided in this Agreement, on the last day of each Interest Period.
7. ISSUE OF EDB GUARANTEE UNDER TRANCHE B[G] FACILITY
7.1 UTILISATION OF THE TRANCHE B[G] FACILITY: Subject to the terms and
conditions of this Agreement and in particular to all the conditions in
Clauses 2, 3 and 7 being satisfied, the Tranche B Lenders will during
the Availability Period of the Tranche B Facility issue the EDB
Guarantee if:
7.1.1 not less than five (5) Business Days before the proposed date
for the issue of the EDB Guarantee, the Facility Agent has
received a request from the Borrower in the form of Schedule 4,
which shall be irrevocable together with the evidence as set out
in Clause 2.1.3.2;
7.1.2 the proposed date for the issue of the EDB Guarantee is a
Business Day falling within the Availability Period of the
Tranche B Facility;
7.1.3 the proposed date for the expiry of the EDB Guarantee is a
Business Day falling on or before the Final Repayment Date of
the Tranche B Facility;
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7.1.4 the Maximum Amount requested for the EDB Guarantee must be less
than or equal to the aggregate of all the Available Tranche B
Commitments;
7.1.5 the Facility Agent is satisfied that the issue of the EDB
Guarantee shall be against repayment of all Outstandings under
the Tranche B[T] Facility together with accrued interest thereon
on or prior to the Conversion Date;
7.1.6 not later than 10 a.m. on the proposed date of issue of the EDB
Guarantee, the Facility Agent and/or Lenders have received and
found satisfactory such other additional information and/or
other documents which are in the Borrower's possession or which
may be procured by the Borrower and which are relevant in the
context of or relating to the Financing Documents as the
Facility Agent may reasonably request in good faith, not later
than 10 a.m. on the second Business Day before the proposed date
of issue of the EDB Guarantee as a result of circumstance which
have arisen or come to its attention since the date of this
Agreement; and
7.1.7 on and as of the proposed date for the issue of the EDB
Guarantee, (a) no Event of Default or Potential Event of Default
is continuing and (b) the representations and warranties are
true and correct in all material respects and not misleading.
7.2. ISSUE OF THE GUARANTEE:
7.2.1 The EDB Guarantee to be issued by the Tranche B Lenders under
the Tranche B[G] Facility shall be (a) in the form set out in
Schedule 10; (b) denominated in Singapore Dollars; (c) for a
Maximum Amount equal to or less than the Tranche B Commitments
on the date of the issue of the EDB Guarantee; and (d) of such
nature that no claim or demand may be made on or against the
Tranche B Lenders under or in connection with the EDB Guarantee
after the Final Repayment Date of the Tranche B Facility.
7.2.2 The Facility Agent shall prepare the execution copies of the EDB
Guarantee and subject to the provisions of this Clause, on the
proposed date for the issue of the EDB Guarantee, the Tranche B
Lenders shall execute the EDB Guarantee and shall deliver the
same to the Facility Agent for onward transmission to EDB on the
proposed date for the issue of the EDB Guarantee.
7.2.3 The Tranche B Lenders agree not to amend the EDB Guarantee
without the prior consent in writing by the Borrower.
Notwithstanding the
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foregoing provision of this Clause 7.2.3, nothing in this Clause
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.
7.3 GUARANTEE LIMIT: The Tranche B Lenders' Commitments in relation to the
Tranche B[G] Facility shall proportionately be reduced in accordance
with the EDB Loan Repayment Schedule such that the Maximum Amount of the
EDB Guarantee shall at all times correspond or be equal to the aggregate
of the principal amount up to an amount not exceeding S$240,000,000,
interest on such principal amount for a six month period and default
interest in an aggregate amount of up to S$10,000,000.
7.4 GUARANTEE FEE: The Borrower shall pay to the Facility Agent for the
account of the Tranche B Lenders, on each Guarantee Fee Payment Date,
the Guarantee Fee.
7.5 ADJUSTMENT OF GUARANTEE FEE:
7.5.1 The Borrower shall pay to the Facility Agent on each date (other
than a Guarantee Fee Payment Date) on which the principal amount
of the EDB Loan is increased (each an "Increased Date"), a
guarantee fee calculated at the applicable rate per annum as set
out in the definition of "Guarantee Fee" on the amount by which
the Maximum Amount has increased on that Increase Date 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); and
7.5.2 Where the Guarantee Fee has been paid and the Maximum Amount on
which such Guarantee Fee was calculated and paid is subsequently
reduced prior to the next Guarantee Fee Payment Date, such part
of the Guarantee Fee paid in respect of the reduced amount for
the period from the date of the reduction to the next Guarantee
Fee Payment Date shall be refunded to the Borrower.
7.6 OBLIGATION SEVERAL: No Tranche B Lender shall be liable for the failure
of any other Tranche B Lender 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 Tranche B Lenders in case of such
failure.
8. DEMANDS UNDER THE EDB GUARANTEE
8.1 NOTIFICATION OF DEMANDS: If, at any time, a demand for payment is made
under the EDB Guarantee to a Tranche B Lender:
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8.1.1 that Tranche B Lender shall notify the Facility Agent and the
other Tranche B Lenders of such demand; and
8.1.2 the Facility Agent shall on behalf of the Tranche B Lenders make
a demand to the Borrower under Clause 9 for an amount equal to
the claims of EDB.
8.2 RIGHT TO MAKE PAYMENTS UNDER EDB GUARANTEE: The Tranche B Lenders and
the Facility Agent on their behalf shall at all times be entitled to
make any payment under the EDB Guarantee for which a demand has been
made under the EDB Guarantee and without any reference to or further
authority from the Borrower and/or any other investigation or enquiry
and need not concern themselves or itself with the propriety of any
claim made or purported to be made under and in the manner required by
the terms of the EDB Guarantee and shall be entitled to assume that EDB
is entitled to make demands or receive payments under the EDB Guarantee.
Accordingly, it shall not be a defence to any demand made of the
Borrower hereunder, nor shall the Borrower's obligations hereunder be
impaired by the fact (if it be the case), that the Tranche B Lenders
were or might have been justified in refusing payment, in whole or in
part, of the amounts so claimed or demanded.
9. BORROWER'S LIABILITIES IN RELATION TO THE EDB GUARANTEE
9.1 BORROWER'S INDEMNITY TO TRANCHE B LENDERS: The Borrower irrevocably and
unconditionally at all times undertakes as a primary obligation to
indemnify on demand of the Facility Agent or any Tranche B Lender, from
and against any and all actions, proceedings, liabilities, claims,
demands, losses, damages, charges, costs and expenses of whatever nature
which any Agent and Tranche B Lender or any or all of them, may at any
time and from time to time directly or indirectly sustain, incur or
suffer arising out of or in connection with the EDB Guarantee or under
this Agreement excluding any actions, proceedings, liabilities, claims,
demands, losses, damages, charges, costs and expenses incurred by either
such Agent or Tranche B Lender by reason of its gross negligence or
wilful misconduct or those of its officers, employees or agents.
9.2 PAYMENT OF GUARANTEED SUM BY BORROWER: Without prejudice to the
generality of the provisions of Clause 9.1, the Borrower covenants and
undertakes to pay to each of the Tranche B Lenders by way of indemnity
at any time and from time to time immediately upon demand by the
Facility Agent or such Tranche B Lender all moneys and liabilities
whatsoever which may from time to time be claimed or demanded from such
Tranche B Lender or which such Tranche B Lender may pay or become liable
to pay or sustain, incur or suffer under or by reason of or in
connection with the EDB Guarantee excluding any moneys or liabilities
sustained, incurred or suffered by either such Agent or Tranche B Lender
by reason of its gross negligence or wilful misconduct or those of its
officers, employees or agents. The Borrower shall make payment to the
Facility Agent or such Tranche B Lender following any claim or demand
against that Tranche B Lender
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notwithstanding that the demand is subsequently withdrawn or that at the
time of the claim or demand such Tranche B Lender is not liable under or
required by law to make any payment under or in connection with its EDB
Guarantee and notwithstanding any other fact or circumstance which may
constitute a defence or discharge to such Tranche B Lender in respect of
the claim or demand made against it under or in connection with its EDB
Guarantee.
9.3 PRESERVATION OF RIGHTS: Neither the obligations of the Borrower set out
in this Clause 9 nor the rights, powers and remedies conferred on any
Tranche B Lender by this Agreement or by law shall be discharged,
impaired or otherwise affected by:
9.3.1 the winding-up, dissolution, judicial management or
reorganisation of such Tranche B Lender, the Borrower or any
other person or any change in its status, function, control or
ownership;
9.3.2 any of the obligations of any Tranche B Lender, the other
Lenders, the Borrower, or any other person hereunder or under
the EDB Guarantee or under any other security taken in respect
of the Borrower's obligations hereunder or otherwise in
connection with the EDB Guarantee being or becoming illegal,
invalid, unenforceable or ineffective in any respect;
9.3.3 time or other indulgence being granted or agreed to be granted
to any Tranche B Lender, the other Lenders, the Borrower or any
other person in respect of its obligations hereunder or under or
in connection with the EDB Guarantee or under any such other
security;
9.3.4 the making or absence of any demand on the Borrower or any other
person for payment;
9.3.5 the enforcement or absence of enforcement of this Agreement, the
other Financing Documents or any other security, guarantee,
indemnity, right, remedy or lien;
9.3.6 the release of any security constituted by any of the Security
Documents or any other security, guarantee, indemnity, right,
remedy or lien;
9.3.7 any amendment to, or any variation, waiver or release of, any
obligation of any Tranche B Lender, the other Lenders or any
other person under the EDB Guarantee or this Agreement; and
9.3.8 any other act, event or omission which, but for this Clause 9,
might operate to discharge, impair or otherwise affect any of
the obligations of the Borrower set out in this Clause 9 or any
of the rights, powers or remedies conferred upon any Lender by
this Agreement or by law.
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The obligations of the Borrower set out in this Clause 9 shall be in
addition to and independent of every other security which any Lender
may at any time hold in respect of the Borrower's obligations
hereunder.
9.4 GOOD FAITH: The Borrower further agrees that any action or step taken by
any of the Tranche B Lenders or the Facility Agent in good faith under
or in connection with the EDB Guarantee shall be binding on it and shall
not place any of the Tranche B Lenders or the Facility Agent under any
liability to it.
10. FEES
10.1 COMMITMENT FEE:
10.1.1 The Borrower shall pay to the Facility Agent for account of the
Tranche A Lenders, a commitment fee at the rate of 0.375% per
annum on the daily amount of the Available Tranche A Commitment
during the period beginning on the date of this Agreement and
ending on the expiry of the Availability Period in relation to
the Tranche A Facility. The commitment fee shall be payable in
arrear quarterly for the period from the date of this Agreement
and on the expiry of the Availability Period in relation to the
Tranche A Facility or any earlier date on which the Available
Tranche A Commitment equals zero.
10.1.2 The Borrower shall pay to the Facility Agent for account of the
Tranche B Lenders, a commitment fee at the rate of 0.375% per
annum on the daily amount of the Available Tranche B Commitment
during the period beginning on the date of this Agreement and
ending on the expiry of the Availability Period in relation to
the Tranche B Facility. The commitment fee shall be payable in
arrear quarterly for the period from the date of this Agreement
and on the expiry of the Availability Period in relation to the
Tranche B Facility or any earlier date on which the Available
Tranche B Commitment equals zero.
10.2 FACILITY ARRANGEMENT FEE: The Borrower shall pay to the Lead Arrangers a
non-refundable facility arrangement fee at the times and in the amounts
and on the terms specified in a Fee Letter between the Borrower and the
Lead Arrangers dated on or prior to the date of this Agreement.
10.3 AGENCY FEE: The Borrower shall pay to the Agents annually in advance on
the date of signing of this Agreement and on each anniversary thereof
until the Borrower has fully discharged its obligations hereunder, the
agency fee in the amount at the time and in the manner (if prescribed)
specified in a letter dated the same day as this Agreement from the
Facility Agent to the Borrower and countersigned by the Borrower.
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11. CHANGE IN CIRCUMSTANCES
11.1 ILLEGALITY: If at any time a Lender 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 any part of the Facilities to remain
outstanding, to make, fund or allow to remain outstanding all or any
part of the Outstandings or to carry out all or any of its other
obligations under any of the Financing Documents, upon that Lender
notifying the Borrower through the Facility Agent:
11.1.1 its Commitment shall be cancelled; and
11.1.2 its portion of the Outstandings shall become due and payable on
such date ("Relevant Date") as that Lender shall certify to be
necessary to comply with the relevant law or directive, the
Borrower shall prepay that Lender's share of the Advances
(without premium or penalty) with all unpaid accrued interest
thereon, all unpaid fees accrued to that Lender and any other
sum then due to that Lender under Clause 21 and in respect of a
Tranche B Lender, procure the release by EDB of all of the
obligations of that Tranche B Lender under the EDB Guarantee on
or prior to the Relevant Date but if the Borrower is unable for
any reason to procure the release by EDB of all of the
obligations of that Tranche B Lender's share under the EDB
Guarantee by the Relevant Date, the Borrower shall pay to the
Security Agent for the account of that Tranche B Lender on the
Relevant Date an amount equal to that Tranche B Lender's share
of the Tranche B[G] Outstandings (which shall be held by the
Security Agent for the account of that Tranche B Lender and
applied towards the discharge of the obligations of the Borrower
to that Tranche B Lender 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 Tranche B Lender 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 Tranche B Lender under this
Agreement.
Without prejudice to the other provisions of this Clause 11.1 and any
rights to which that Tranche B Lender 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 Tranche B Lender under the EDB Guarantee
by the Relevant Date, that Tranche B Lender may:
(a) 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 Tranche B Lender 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 9 shall apply to such prepayment or
purchase;
(b) negotiate any compromise, release, discharge, reduction or
retirement of all or any of the obligations of that Tranche B
Lender under the EDB Guarantee and
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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 9 shall apply to such payment; and
(c) pay any amount received by it under Clause 11.1.2 above to EDB
in exchange for such payment of a release by EDB, to the extent
of such payment, of the obligations of that Tranche B Lender
under the EDB Guarantee, and the provisions of Clause 9 shall
apply to such payment by the Tranche B Lenders as if such
payment had been made pursuant to a demand by EDB under the EDB
Guarantee.
11.2 INCREASED COSTS: If any Lender or Agent 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 that Agent or that Lender
or its Holding Company with any directive coming into effect after the
date of this Agreement including without limitation, a directive which
affects the manner in which that Lender allocates capital resources to
its obligations under this Agreement:
11.2.1 the cost to that Lender or any Holding Company of such Lender of
maintaining all or any part of the Commitment and/or of making,
maintaining or funding all or any part of any Outstandings or
any overdue sum is increased; and/or
11.2.2 any sum received or receivable by that Agent or that Lender or
its Holding Company (as the case may be) under the Financing
Documents or the effective return to it under the Financing
Documents or the overall return on its capital is reduced
(except on account of tax on its overall net income); and/or
11.2.3 that Agent or that Lender (as the case may be) makes any payment
(except on account of tax on its overall net income) or foregoes
any interest or other return calculated by reference to the
amount of any sum received or receivable by it under the
Financing Documents, that Agent or the relevant Lender shall as
soon as reasonably practicable notify the Borrower.
The Borrower shall indemnify that Agent or that Lender against that
increased cost, reduction, payment or foregone 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 pay to that
Agent for the account of itself and/or that Lender the amount certified
by it (together with, to the extent practicable and reasonable, a
statement of the reason(s) without disclosure of confidential or
proprietary information) to be necessary so to indemnify it.
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The indemnity given to that Agent or Lender by the Borrower in this
Clause 11.2 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 an Agent or
Lender which is imposed on that Agent or Lender by reason of that
Agent's or Lender'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.
11.3 CHANGE IN MARKET CONDITIONS:
11.3.1 If, in relation to any Interest Period:
11.3.1.1 the Facility Agent is notified by the Lenders to whom
more than 662/3% of the Advance(s) to which that
Interest Period relates is (or, if made, would be) owing
that adequate and fair means do not or will not exist in
the Singapore inter-bank market or the London inter-bank
market (as the case may be) for determining the rate of
interest applicable for that Interest Period; or
11.3.1.2 the Facility Agent is notified by the Lenders to whom
more than 662/3% of the Advance(s) to which that
Interest Period relates is (or, if made, would be) owing
that LIBOR or Swap Rate, as the case may be, does not
reflect the cost to those Lenders of obtaining such
deposits,
the Facility Agent shall promptly notify the Borrower and the
Lenders of such event (a "Suspension Notice").
11.3.2 The Facility Agent (on behalf of and after consultation with the
Lenders) shall then negotiate in good faith with the Borrower
with a view to agreeing an alternative basis for calculating the
interest payable on and/or for making, maintaining and/or
funding the Advances. Any alternative basis agreed in writing by
the Facility Agent (on behalf of and with the consent of all the
Lenders) and the Borrower within twenty-five (25) days of the
Suspension Notice shall take effect in accordance with its
terms. If an alternative basis is not so agreed, each Lender's
share of that Advance shall during that Interest Period bear
interest at the rate per annum equal to the aggregate of the
applicable Margin and the cost to it (expressed as a rate per
annum) of funding its share of that Advance for such 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 Lender shall certify that cost
to the Borrower (together with, to the extent practicable and
reasonable, a
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statement of the reasons(s) without disclosure of confidential
or proprietary information) as soon as practicable after the end
of that twenty-five (25) day period (but in any event at least
two (2) Business Days before the end of that Interest Period).
11.4 INDIVIDUAL NON-AVAILABILITY:
11.4.1 If, in relation to any Interest Period commencing after the
period of twelve (12) months from the date of this Agreement,
any Lender notifies the Facility Agent within the two (2)
Business Days before the first day of that Interest Period that
by reason of circumstances affecting the London inter-bank
market or Singapore inter-bank market as the case may be or a
particular category (which includes that Lender) of banks
dealing in that market, LIBOR or Swap Rate, as the case may be,
does not reflect the cost to it of obtaining such deposits, the
Facility Agent shall promptly notify the Borrower accordingly
unless it has already given a notification to the Borrower in
relation to that Interest Period under Clause 11.3.1.
11.4.2 The Borrower, the Facility Agent and that Lender shall then
negotiate in good faith (unless and until Clause 11.3.2 comes
into operation in relation to that Interest Period) with a view
to agreeing an alternative basis for calculating the interest
payable on and/or for making, maintaining and/or funding that
Lender's share of such Advance(s) for that Interest Period as
notified to the Borrower pursuant to Clause 11.4.1. Any
alternative basis agreed in writing by the Borrower, the
Facility Agent and that Lender within twenty-five (25) days of
the Facility Agent's notification under Clause 11.4.1 shall take
effect in accordance with its terms. If an alternative basis is
not so agreed and Clause 11.3.2 has not come into operation in
relation to that Interest Period, that Lender's share of such
Advance(s) shall during that Interest Period bear interest at
the rate per annum equal to the sum of the applicable Margin and
the cost to it (expressed as a rate per annum) of funding its
share (including, without limitation, the cost to it occasioned
by or attributable to complying with reserves, liquidity,
deposit or other requirements imposed on it by any relevant
authority or authorities) during that Interest Period by
whatever means it determines to be appropriate provided that the
increase, as determined above, in the rate of such cost to such
Lender over LIBOR or Swap Rate, as the case may be, shall not
exceed twenty-five (25) basis points. That Lender shall certify
that cost to the Borrower (together with, to the extent
practicable and reasonable, a statement of the reason(s) without
disclosure of confidential or proprietary information) 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).
11.5 MITIGATION: If any circumstances arise which result, or would on the
giving of notice (or the like) result, in the Commitment being cancelled
under Clause 11.1 or in the Borrower
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having to make a payment to or for account of a Lender under Clause 11.2
or Clause 12.2, then without in any way limiting, reducing or otherwise
qualifying any of the obligations of the Borrower under Clauses 11.1,
11.2 or 12.2, such Lender shall use its reasonable efforts (for a period
not exceeding thirty (30) days) to mitigate the effect of those
circumstances (such as changing its Facility Office, restructuring its
participation in the Facilities or any part thereof and/or novating some
or all of its rights or obligations under this Agreement and/or the
Security Documents to another person acceptable to the Borrower and
willing to take that novation). However, such Lender shall not be
obliged to take such steps which would or might in its opinion result in
it suffering any economic, legal, regulatory or other disadvantage or
cause its business, operations or financial condition to be prejudiced.
12. TAXES
12.1 PAYMENTS TO BE FREE AND CLEAR: All sums payable by the Borrower under
the Financing Documents shall be paid (a) free of any restriction or
condition, (b) 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 (c) 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.
12.2 GROSSING-UP OF PAYMENTS:
12.2.1 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 Lender 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;
12.2.2 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 any Agent or, as the case may be,
any Lender under this Agreement (except for a payment by the
Agent or a Lender 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
Lender, shall reimburse such Agent or such Lender on demand for
the amount paid by it;
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12.2.3 Within thirty (30) days after paying any sum from which it is
required by law to make any deduction or withholding, and within
thirty (30) days after the due date of payment of any tax or
other amount which it is required by Clause 12.2.2 to pay, the
Borrower shall deliver to the Facility Agent evidence
satisfactory to the Facility Agent or, as the case may be, the
relevant Lender of that deduction, withholding or payment and
(where remittance is required) of the remittance thereof to the
relevant taxing or other authority; and
12.2.4 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 Facility Agent.
12.3 GOODS AND SERVICES TAX: The Borrower shall also pay to the Lenders and
the Agents on demand, in addition to any amount payable by the Borrower
to the Lenders and the Agents under any of the Financing Documents, any
goods and services, value added or other similar tax payable in respect
of that amount (and references in the Financing Documents to that amount
shall be deemed to include any such taxes payable in addition to it or
in place thereof).
12.4 REFUND OF TAX CREDITS: If:
12.4.1 the Borrower makes a payment under Clause 12.2.1 or 12.2.2 (a
"Tax Payment") in respect of a payment to a Lender under this
Agreement; and
12.4.2 that Lender 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 the Lender
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 Lender, that Lender shall reimburse the Borrower
such amount as that Lender in its absolute discretion determines to be
such proportion of that Tax Credit as will leave that Lender (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 Lender 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 Clause 12.4 (and, if so, what amount and when). No Lender
shall be obliged to disclose any information regarding its tax affairs
and computations.
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13. PAYMENTS
13.1 PAYMENTS BY BORROWER: On each date on which any sum is due from the
Borrower it shall make that sum available to the Facility Agent, by
payment, if in Singapore Dollars, in Singapore Dollars and in
immediately available and freely transferable funds, so as to be
received before 11 a.m. Singapore time to such account of the Facility
Agent as may be designated by the Facility Agent to the Borrower, and
will at the same time notify the Facility Agent of such payment; and if
in US Dollars, in US Dollars and in funds which are for the same day
settlement in the New York Clearing House Interbank Payments System (or,
if such funds cease to exist or, in the Facility 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
Facility 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 Facility Agent and/or such other bank in New
York City as the Facility Agent shall have designated to it for that
purpose.
13.2 PAYMENTS BY LENDERS:
13.2.1 On each date on which an Advance is to be made, each Trache A
Lender or Tranche B Lender, as the case may be, shall make
available to the Facility Agent its share (if any) of that
Advance by payment in US Dollars in respect of the Tranche A
Facility and Singapore Dollars in respect of the Tranche B[T]
Facility.
13.2.2 Payments shall be made (a) 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 Facility Agent with such
bank in Singapore as the Facility Agent may from time to time
designate, and (b) 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 Scheme (or, if
such funds cease to exist or, in the Facility 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 Facility 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 Facility Agent with such bank in New York City as
the Facility Agent may from time to time designate; and
13.2.3 The Facility Agent shall make the amounts so received by it from
the Lenders available to the Borrower before close of business
in the relevant Centre on that date by payment in the same
currency and funds as received by the Facility Agent to such
account of the Borrower with a bank in that Centre as the
Borrower shall have specified in the request for that Advance.
If any Lender makes its share of an Advance available to the
Facility Agent later than required by Clause 13.2.1, the
Facility Agent
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shall make that share available to the Borrower as soon as
practicable thereafter.
13.3 DISTRIBUTION TO LENDERS: The Facility Agent shall make available to each
Lender, before close of business in Singapore or New York City as the
case may be on that day Pro Rata any sum (if any) so received by the
Facility Agent in the same currency and funds as received by the
Facility Agent to such account of that Lender and/or such bank in
Singapore or New York City as the case may be as it shall have specified
to the Facility Agent. If any sum is made available to the Facility
Agent later than required by Clause 13.1 above, the Facility Agent shall
make each Lender's share (if any) available to it as soon as practicable
thereafter.
13.4 REFUNDING OF PAYMENTS: If and to the extent or for any reason that the
Facility Agent makes funds available to the Borrower or any person
pursuant to Clause 13.1 and Clause 13.2 and it transpires that the
Facility Agent had not then received or does not receive the sum which
it paid out:
13.4.1 the Borrower or that person shall on demand refund such sum to
the Facility Agent; and
13.4.2 the person by whom that sum should have been made available
shall on request pay to the Facility Agent the amount (as
certified by the Facility Agent) which will indemnify the
Facility Agent (as the case may be) 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 or does not
receive the sum for which it had paid out.
13.5 NON-BUSINESS DAYS:
13.5.1 If at 11 a.m. on the Quotation Date for any Interest Period it
is apparent to the Facility Agent that the Interest Period would
otherwise end on a non-Business Day, it shall instead end on the
next Business Day in the same calendar month (if there is one)
or the preceding Business Day (if there is not) and in the
instance where the Final Repayment Date falls on a non-Business
Day. All calculations of interest shall be adjusted accordingly.
13.5.2 Any payment to be made by the Borrower and the Lenders on a day
which is not a Business Day shall instead be due on the next
Business Day in the same calendar month (if there is one) or on
the preceding Business Day (if there is not) and all
calculations of interest (if any) shall be adjusted accordingly.
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14. REPRESENTATIONS AND WARRANTIES
14.1 BENEFIT OF WARRANTY: The Borrower hereby represents and warrants to and
for the benefit of the Lenders as follows and acknowledges that the
Lenders have entered into the Financing Documents in reliance on these
representations and warranties:
14.1.1 STATUS OF BORROWER: it is a company with limited liability duly
incorporated and validly existing under the laws of Singapore
and has the power and authority to own assets and to conduct the
business which it conducts and/or proposes to conduct;
14.1.2 POWERS: it has the power to enter into, exercise its rights and
perform and comply with its obligations under Transaction
Documents, to undertake the Project and to operate the Plant;
14.1.3 OBLIGATIONS: its obligations under the Transaction Documents are
legal, valid, binding and enforceable in accordance with their
respective terms;
14.1.4 AUTHORISATIONS AND CONSENTS: all action, conditions and things
required to be taken, fulfilled and done (including the
obtaining of any necessary consents) in order (i) to enable it
lawfully to enter into, exercise its rights and perform and
comply with its obligations under the Transaction Documents,
(ii) to ensure that those obligations are valid, legally binding
and enforceable, (iii) to make such Transaction Documents
admissible in evidence other than stamping in the courts of
Singapore and (iv) to undertake the Project and to operate the
Plant, have been taken, fulfilled and done (except for
registration of the Security Documents which shall be fulfilled
and done within the required statutory period);
14.1.5 NON-VIOLATION OF LAWS ETC.: its entry into, exercise of its
rights and/or performance of or compliance with its obligations
under the Transaction Documents do not and will not violate (i)
any law to which it is subject or (ii) any of the documents
constituting the Borrower or (iii) any agreement to which it is
a party or which is binding on it or its assets to an extent or
in a manner which has or will have a Material Adverse Effect on
it, and do not and will not result in the existence of, or
oblige it to create, any security over those assets;
14.1.6 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 and by
appropriate proceedings (provided that it has established (in
the reasonable opinion of the Facility Agent) prudent reserves
against such liability);
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14.1.7 LITIGATION: no litigation, arbitration or administrative
proceeding is current or pending against the Borrower including
any Environmental Claim which will have a Material Adverse
Effect;
14.1.8 EVENT OF DEFAULT: no Event of Default or Potential Event of
Default has occurred and is continuing (other than any waived in
accordance with Clause 28.2) or, will occur as a result of the
making any Advance or the issuance of the EDB Guarantee and it
is not in breach of or default under any agreement to an extent
or in a manner which has or would have a Material Adverse
Effect;
14.1.9 MATERIAL ADVERSE CHANGE: there is no material adverse change in
the assets, financial condition, operations or management of the
Borrower;
14.1.10 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;
14.1.11 APPROVALS RELATING TO PROJECT: all approvals as may be necessary
(a) for its lease of such part of the premises comprised in the
Property the absence of which would otherwise lead to a
forfeiture of such lease, and (b) for the Borrower to undertake
the Project other than any which will not have a Material
Adverse Effect on the Project, have been obtained or will be
obtained from the competent authorities and are or will be in
full force and effect and all conditions specified therein have
been or will be complied with, and in respect of the approvals
which are to be obtained hereafter, they will be obtained and
when obtained all the conditions specified therein will be
complied with;
14.1.12 COMPLIANCE WITH PROJECT DOCUMENTS: there is no breach by it of
(a) any of the terms and conditions of any of the Project
Documents save as notified to the Lenders or (b) any of the
Property Leases which would lead to a forfeiture of such lease;
14.1.13 COMPLIANCE WITH LAWS: it is in compliance in all material
respect with all applicable laws and regulations including but
not limited to environmental law relating to the Project or the
operation of the Plant;
14.1.14 INTELLECTUAL PROPERTY: it has or will have available to it all
intellectual property of every description (including, without
limitation, licenses, copyrights, design registrations and
know-how) necessary for the implementation of the Project and
the operation of the Plant;
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14.1.15 MOVABLE ASSETS: the moveable Assets including the assets
identified in Schedule 2 of the Debenture are not affixed to the
Property in such a manner as that their removal may cause
structural damage to the Property;
14.1.16 OWNERSHIP OF ASSETS: save for Permitted Encumbrances, no
Encumbrance exists over all or any of the present or future
revenues or assets of the Borrower, and the Borrower is or will
be the sole legal and beneficial owner of the properties and
interest charged and/or assigned in the Security Documents to
which it is a party as therein set out;
14.1.17 NO MISSTATEMENT: on the date upon which the Information
Memorandum was published, the information contained therein and
in the exhibits referred to therein and on the date hereof was
and is true, complete and accurate in all material respects (or,
in the case of any assumption upon which the financial
projections contained in the Information Memorandum or any other
written information supplied by any person or any agent or
advisor of the Borrower to the Agents and the Lenders or any of
them in connection with the Project were made, such assumption
was reasonable when made) and the Borrower is not aware of any
material facts or circumstances that have not been disclosed to
the Lenders which would render the information contained in the
Information Memorandum or otherwise supplied to the Agents and
the Lenders or any of them misleading in any material respect;
14.1.18 YEAR 2000 READINESS: the Y2K Program has been implemented and
will be completed in time in relation to material assets,
processes and technologies used in the Project;
14.1.19 AMENDMENTS TO PROJECT DOCUMENTS: it has not agreed to any
amendment, modification, variation, supplement, assignment,
novation or substitution of or to any Project Document referred
to in Schedule 5 other than as permitted hereunder or which does
not have a Material Adverse Effect and all amendments to any
such Project Document which would have a Material Adverse Effect
have been approved by the Lenders;
14.1.20 LIABILITIES: it has no material liabilities (actual or
contingent) in excess of an aggregate amount of S$10,000,000
other than those contemplated for the Original Scope of the
Project and those liabilities as set out in the Borrower's
latest financial statements or as separately notified to the
Secured Creditors prior to the date hereof;
14.1.21 AUDITED FINANCIAL STATEMENTS: the most recent audited financial
statements of the Borrower:
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14.1.21.1 were prepared in accordance with accounting principles
generally accepted in Singapore and consistently
applied;
14.1.21.2 to the extent required by accounting principles,
standards and practices generally accepted in
Singapore, disclose or reserve against all
material liabilities (contingent or otherwise)
and all material unrealised or anticipated
losses of the Borrower; and
14.1.21.3 save as disclosed therein, give a true and fair view
of the financial condition and operations of the
Borrower during the relevant financial year;
14.1.22 INSURANCES: the Insurances referred to in Clause 17.20 are in
full force and effect and the Borrower is not aware of any facts
or circumstances that have not been disclosed to the Borrower's
insurers and which might reasonably be expected, if so disclosed
in the opinion of the Independent Insurance Consultant, to
affect materially and adversely the nature or extent of the
cover to be provided under such Insurances;
14.1.23 PROJECT AGREEMENTS: as at Financial Close, there is no other
material agreement, other than the Transaction Documents,
necessary or anticipated to be necessary in connection with the
Project; and
14.1.24 REPETITION: each of the above representations and warranties
will be correct and complied with on the date of each request
for an Advance or the EDB Guarantee, on the date on which each
Advance or EDB Guarantee is to be made or issued respectively,
and on each day which is an Interest Payment Date and after the
expiry of the Tranche A Facility on each Guarantee Fee Payment
Date and the Expiry Date as if repeated then by reference to the
then existing circumstances except for Clause 14.1.17
(mis-statements) which shall be repeated only on the date of the
request for the first Advance or the EDB Guarantee (as the case
may be).
15. FINANCIAL COVENANTS
The Borrower undertakes to the Agents and the Lenders that, so long as the
Secured Liabilities are outstanding under this Agreement:
15.1 PREPARATION OF ACCOUNTS: it will ensure that all accounts to be
delivered by it under this Agreement are prepared in such manner that
they will:
15.1.1 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
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accounting principles and practices generally accepted in
Singapore and consistently applied and in accordance with the
laws of Singapore and its Memorandum and Articles of
Association;
15.1.2 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
15.1.3 together with those notes and to the extent required by
accounting principles, standards and practices generally
accepted in Singapore, disclose or reserve against all
liabilities (contingent or otherwise) of it as at that date and
all material unrealised or anticipated losses from any
commitment entered into by it and which existed on that date;
15.2 AUDITED ACCOUNTS: as soon as reasonably practicable after the same are
available and in any event within 120 days after the end of each of its
financial years (beginning with the current one), it will deliver to the
Facility Agent, with sufficient copies for all the Lenders, copies 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 15.1 above;
15.3 MANAGEMENT ACCOUNTS: as soon as reasonably practicable after the same
are available and in any event within forty-five (45) days after the end
of the first six months of each of its financial years (beginning with
the current one), it will deliver to the Facility Agent, with sufficient
copies for all the Lenders, copies of its unaudited management accounts
as at the end of and for that six month period;
15.4 AUDITOR'S REPORT: as soon as reasonably practicable after any request
made by the Facility Agent from time to time, it will deliver to the
Facility Agent a report or such certificates signed by the Borrower's
auditor with sufficient copies for all Lenders for that purpose
concerning such matters relating to its books of account and records as
the Facility Agent may reasonably request in its notice provided that
where there is no Event of Default or Potential Event of Default which
is continuing, the Facility Agent may not make more than one such
request per calendar year;
15.5 OTHER INFORMATION: it will as soon as reasonably practicable deliver to
the Facility Agent (a) such other information relating to its financial
condition or business as the Facility Agent or any Lender through the
Facility Agent may from time to time reasonably require, and (b) all
financial, technical and other information as the Facility 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 the Borrower as confidential including
commercially sensitive information);
15.6 PREPAYMENT OF EDB LOAN: it shall two (2) days prior to the giving any
notice of prepayment or cancellation of the EDB Loan or any part thereof
to EDB, notify the Facility Agent of its intention of giving such notice
to the EDB;
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15.7 COMPLIANCE WITH FINANCIAL RATIOS: at the end of each semi-annual period
of each of its financial years (and within fourteen (14) days after any
request made by the Facility Agent from time to time), it will deliver
to the Facility Agent within forty-five (45) days from the end of that
semi-annual period a certificate by the Authorised Signatory of the
Borrower:
15.7.1 confirming compliance with Clause 15.8 as at the end of the
relevant semi-annual period (or, as the case may be, as at the
date specified in the Facility Agent's request, which date must
be not less than seven (7) nor more than fourteen (14) days
before the date of the request); and
15.7.2 setting out in reasonable detail and in a form mutually agreed
between the Borrower and the Facility Agent the computations
necessary to demonstrate such compliance;
15.8 DEBT SERVICE COVERAGE RATIO:
15.8.1 it will with effect from the first Repayment Date, maintain a
Debt Service Coverage Ratio of not less than 1.1:1, and the
Facility Agent may on a semi-annual basis based on the Current
Financial Report (based on US Dollars denominated accounts)
determine that such ratio has been maintained; and in the event
of a breach of the provisions hereof, the Borrower shall ensure
that the Shareholders shall upon the occurrence of such event or
upon notification by the Facility Agent, within fourteen (14)
days, inject funds in the Borrower either by way of Contingency
Shareholders Loan or Equity Contribution in accordance with the
provisions of the Shareholders Undertaking or otherwise as
approved by the Facility Agent, to rectify the shortfall and the
Available Cashflow used for the calculation of that Debt Service
Coverage Ratio shall be revised to include such funds injected;
15.8.2 the Agents and the Lenders agree and acknowledge that a breach
of the Debt Service Coverage Ratio itself will not constitute an
Event of Default unless and until the Shareholders fail to
rectify the shortfall in accordance with Clause 15.8.1.
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15.9 FINANCIAL RATIOS: it will ensure that the D/E Ratio will not exceed the
following levels on the specified dates:
DATE MAXIMUM DEBT TO EQUITY
31 December 2001 2.0x
31 December 2002 1.5x
31 December 2003 1.5x
31 December 2004 1.5x
31 December 2005 1.5x
For the period from 31st December 2001 to 30th June 2002, D/E Ratio will
not exceed 2.0x. From 30th June 2002 onwards, the Borrower's D/E Ratio
will not exceed 1.5x at any time. The Facility Agent will monitor the
D/E Ratio and it will be tested on a semi-annual basis calculated based
on the Current Financial Report for the period ending on that date.
16. COVENANTS RELATING TO THE PROJECT ACCOUNTS
The Borrower undertakes to the Facility Agent and the Lenders that, so long as
the Secured Liabilities are outstanding under this Agreement:
16.1 OPENING OF ACCOUNTS: it will establish and maintain the Project Accounts
with the Project Account Bank until the Final Repayment Date;
16.2 PAYMENTS INTO ACCOUNTS: it will ensure that:
16.2.1 the gross sale proceeds derived from the ASAD Agreement and
direct sales of wafers produced within the Original Scope of
Project to third parties requested or initiated by CSM;
16.2.2 the proceeds from all Advances and Equity Contribution;
16.2.3 the proceeds of each Advance made by EDB as part of the EDB
Loan;
16.2.4 all payments and/or advances made to the Borrower as Equity
Contribution and Contingency Shareholders Loan;
16.2.5 any capital amount, interest or income received from any
Permitted Investment made pursuant to Clause 16.5;
16.2.6 all amounts paid to it under any completion guarantee,
performance bond, advance payment guarantee or any retention
monies or liquidated damages in relation to or in connection
with the Original Scope of the Project; and
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16.2.7 aggregate Insurance Proceeds exceeding US$5,000,000 from any one
incident,
are credited in full to the relevant Project Accounts;
16.3 AMOUNTS IN PROJECT ACCOUNTS:
16.3.1 no amount standing to the credit of any Project Account shall be
applied other than in accordance with the terms of and subject
to the conditions of the Financing Documents; and
16.3.2 all amounts withdrawn from any Project Account by the Borrower
for application in or towards making a specific payment or
meeting a specific liability shall be applied in or towards
making that payment or meeting that liability and shall not be
applied in or towards any other purpose;
16.4 it will ensure that withdrawals are made from the Project Accounts only
for the following applications (save for payment pursuant to Clause
5.3.3) and in the following order of priority:
16.4.1 Operating Costs and administration expenses (including
inter-company ▇▇▇▇▇▇▇▇), all capital expenditure of the Original
Scope of Project and pre-operating costs due and payable;
16.4.2 taxes due and payable;
16.4.3 Lenders' fees and interest (including those under the EDB Loan)
which have fallen due and payable;
16.4.4 repayment of the principal amount of the Facilities which have
fallen due and payable;
16.4.5 payments of all other amounts due and payable by the Borrower
under the Financing Documents;
16.4.6 on a Repayment Date, the balance remaining after payments
pursuant to Clauses 16.4.1 to 16.4.5, shall be used for
repayment of advances from Shareholders under the Contingency
Shareholders Loan (subject to Clause 18.2); and
16.4.7 on a Repayment Date, the balance remaining after payments
pursuant to Clauses 16.4.1 to 16.4.6, may be utilised for
dividends or any other payments or distributions (subject to the
conditions in Clause 18.1) and/or for any other purpose as the
Borrower may think fit; and
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16.5 PERMITTED INVESTMENTS: without limiting the Borrower's
obligations under this Clause 16, and in particular Clause 16.4,
amounts credited to the Project Accounts may be invested in
Permitted Investments.
17. POSITIVE COVENANTS
The Borrower undertakes to the Secured Creditors that, so long as the Secured
Liabilities are outstanding, it shall:
17.1 AUTHORISATION AND CONSENTS: from time to time, obtain, comply with the
terms of and do all that is necessary to maintain in full force and
effect all authorisations, approvals, licences and consents (and all
terms and conditions imposed thereby) necessary or advisable to enable
it lawfully to enter into and perform its obligations under the
Transaction Documents other than licences, approvals and consents, in
relation to which the failure to comply with or obtain the same would
not materially and adversely affect the financial condition of the
Borrower or its ability to perform its obligations under the Transaction
Documents or to ensure the legality, validity, enforceability or
admissibility in evidence in Singapore of the Transaction Documents;
17.2 REPRESENTATIONS: after the delivery of any Notice of Drawdown and before
the proposed making of the Advance requested therein, notify the
Facility Agent of the occurrence of any event which results in or may
reasonably be expected to result in any of the representations contained
herein being untrue in any material respect at or before the time of the
proposed making of such Advance;
17.3 NOTIFICATION: promptly upon it becoming aware of the same, inform the
Facility Agent of the occurrence of any of the following:
17.3.1 an Event of Default or Potential Event of Default which is
continuing together with details of remedial action it proposes
to take;
17.3.2 an event of Force Majeure occurring in connection with the
Project;
17.3.3 any dispute to which it is a party under any of the Project
Documents and any other document which, if determined against
it, would have a Material Adverse Effect;
17.3.4 any litigation, arbitration or other proceeding that is
threatened against the Borrower or its assets which would have a
Material Adverse Effect;
17.3.5 stoppage or suspension (for continuous period of more than
fourteen (14) days) of construction works (if any), equipment
installation or operation of the Project other than routine
stoppage of operations in the normal course of operation and
maintenance activities, material loss or damage to the Plant;
and
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17.3.6 default, non-availability, termination or non-renewal of, or
imposition of onerous conditions upon, any consent or
authorisation referred to in Clause 17.1 having a Material
Adverse Effect;
17.4 CLAIM PARI PASSU: ensure that at all times the claims of the Agents and
the Lenders against the Borrower under this Agreement and each of the
Financing Documents will rank at least pari passu with the claims of all
creditors that are both unsecured and unsubordinated except indebtedness
preferred solely by laws of general application;
17.5 UTILISATION OF PLANT: unless otherwise agreed by the Majority Lenders,
utilise the Plant to produce semi conductor integrated circuit
wafers/products at technology levels contemplated under the ASAD
Agreement or the Joint Venture Agreement;
17.6 PROJECT IMPLEMENTATION:
17.6.1 ensure that at all times it complies with in all material
respect, and that the Project is constructed and operated and
the Plant maintained in compliance with in all material respect,
all applicable laws including environmental laws; and
17.6.2 all contractors and suppliers complete the Project in accordance
with generally accepted engineering practice and generally
accepted construction procedures and that the Plant is installed
and operated in accordance with good industry practice and keep
and maintain the Plant in good working order and condition
subject to normal wear and tear;
17.7 TRANSACTION WITH AFFILIATES: enter into any material transactions with
the Shareholders or any of their affiliates or subsidiaries only on an
arm's length commercial terms or terms which are no less favourable to
it than on arm's length commercial terms;
17.8 SECURITY INTERESTS: as long as any Secured Liabilities remain unpaid,
maintain the security granted pursuant to the Security Documents;
17.9 DISPUTES UNDER PROJECT DOCUMENTS: (a) notify the Facility Agent in
writing within thirty (30) days of becoming aware of the institution of
any suit or proceeding as referred to in Clause 19(F)(ii) of the Joint
Venture Agreement or Article 6.10(b) of the License and Technology
Transfer Agreement and (b) give the Facility Agent not less than thirty
(30) days prior notice in writing of the termination of the Joint
Venture Agreement and (c) as soon as practicable after becoming aware
give notice in writing of any material breach by any party of its
obligations under the Joint Venture Agreement;
17.10 TRANSACTION DOCUMENTS: (i) observe, comply with and perform all of its
obligations and otherwise comply with all the provisions under each of
the Transaction Documents to which it is expressed to be a party and
(ii) maintain and exercise and enforce all of its rights and remedies
under each of the Transaction Documents to which it is expressed
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to be a party in each case where the failure to do so would have a
Material Adverse Effect;
17.11 NOTIFICATION: as soon as reasonably practicable notify or deliver to the
Facility Agent:
17.11.1 copies of any additional Project Documents, details of any
amendments or variations to any of the Project Documents and any
other material agreement relating to the Project;
17.11.2 confirmations from the Borrower that by the respective dates as
specified in the Shareholders Undertaking, the share capital of
the Borrower would be not less than the required Equity
Contribution;
17.11.3 notice of any material adverse change since the latest financial
statements in the Borrower's businesses or financial, operations
or management condition;
17.12 PROCEEDS OF ADVANCE: utilise the proceeds of each Advance in accordance
with the provisions of Clause 2.2;
17.13 INSPECTION OF PLANT: provide reasonable access by permitting each of the
Lenders or the Agents and any representative appointed by the Lenders or
any Agent, (a) to carry out an inspection of the Plant subject to
(unless an Event of Default has occurred or the relevant Lender or Agent
is of the reasonable opinion that the Plant is in jeopardy) (i)
practicality and the giving of reasonable notice, and (ii) inspection
being at reasonable times and with reasonable frequency and in
compliance with any applicable procedures of the Borrower; and (b) upon
the occurrence of an Event of Default which is continuing, and subject
to practicality and the giving of reasonable notice, to carry out an
inspection of the Borrower's financial books and records, and, in either
case, for this purpose provide or procure the provision to any such
person or representative of reasonable access and cause its agents and
employees to co-operate on the occasion of any such inspection;
17.14 IMPLEMENTATION REPORTS: until Commercial Production, submit quarterly
reports (in such form and substance as agreed by the Borrower and the
Facility Agent), such reports to indicate that the expected depreciation
plus the then available Contingency Shareholders Loan will exceed the
Outstandings under Tranche A Facility and Tranche B(T) Facility expected
to be repaid under Clause 5.1 and Clause 5.2 and the outstandings of EDB
loan guaranteed under Tranche B[G] Facility expected to be repaid on
each Repayment Date falling after the date of such report; and in the
event the expected depreciation plus the then available Contingency
Shareholders Loan is less than the Outstandings under Tranche A Facility
and Tranche B(T) Facility expected to be repaid under Clause 5.1 and
Clause 5.2 and the outstandings of EDB loan granted under Tranche B[G]
Facility expected to be repaid on each Repayment Date falling after the
date of such report, and the projected Available Cashflow will not be
sufficient to cover the shortfall, the Borrower will within fourteen
(14) days of notification by the Facility
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Agent, produce to it a remedial action plan acceptable to the Facility
Agent (such acceptance not to be unreasonably withheld), and to
implement such plan in accordance with the terms thereof forthwith upon
the Facility Agent's confirmation that such plan is acceptable. The
first implementation report shall be submitted within thirty (30) days
from Financial Close and the Borrower acknowledges that there shall be
no grace period for remedy of any failure to deliver any implementation
report within the time stipulated above;
17.15 AMENDMENTS TO BUSINESS PLAN: notify the Facility Agent of any material
amendments to the Business Plan as approved by the board of directors of
the Borrower and confirm to the Facility Agent that such amendments are
of no Material Adverse Effect;
17.16 STAMP DUTY AND TAXES: (a) within such period allowed by law, pay or
cause to be paid all stamp duties or similar taxes payable in respect of
the Transaction Documents; (b) from time to time pay all taxes payable
by it as and when the same fall due except to the extent that any such
taxes or assessments are being contested in good faith and by
appropriate proceedings (provided that it has established (in the
reasonable opinion of the Facility Agent) prudent reserves against such
Liability);
17.17 INDEPENDENT INSURANCE CONSULTANT: afford to the Independent Insurance
Consultant all assistance reasonably requested by the Independent
Insurance Consultant;
17.18 INFORMATION: ensure that all factual written information provided by it
is at all times true, complete and accurate in all material respects
when delivered and that all projections, forecasts and opinions provided
are arrived at after due and careful consideration and enquiry and
genuinely represent its view;
17.19 PERMITTED INVESTMENT CREDIT RISK: ensure that if the Facility Agent
notifies it that in the Facility Agent's opinion, any entity with which
a Permitted Investment is made pursuant to Clause 16.5, ceases to be of
sound financial health, the Borrower shall refrain from making any
Permitted Investments pursuant to Clause 16.5 with such entity and the
Borrower shall withdraw any existing investments with such entity
provided that it shall not be obliged to do so if it is prejudicial to
the Borrower taking into account all circumstances including the costs
involved;
17.20 INSURANCES:
17.20.1 effect and maintain or procure that there shall be effected and
maintained, in accordance with good insurance practice all
policies specified in Schedule 9 in such manner and on such
terms (including level of cover) as the Facility Agent may
reasonably require (following consultation with the Independent
Insurance Consultant and the Borrower) in the joint names of the
Borrower and the Security Agent (for and on behalf of the
Lenders and naming the Security Agent as loss payee) for their
respective interests with reputable insurers and underwriters;
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17.20.2 from time to time upon reasonable request supply the Facility
Agent with a certificate provided by Lucent Technologies Inc.,
CSM and/or STPL certifying that the insurances for the Project
set out in Clause 17.20.1 above are (i) in full force and effect
and (ii) included within the main insurance policy maintained by
Lucent Technologies Inc., CSM or, as the case may be, STPL and
the Borrower shall pay all premium, calls contributions and
other sums due under such insurance policies within applicable
grace periods. To the extent that the Borrower fails to do so,
the Facility Agent shall be entitled (but not obliged) to pay
any premiums or other amounts payable by the Borrower, in
respect of such insurance policies and the Borrower shall
forthwith upon demand reimburse the Facility Agent for all such
amounts paid together with interest under Clause 20.1 on such
amount for the period beginning on the date on which the
Facility Agent made payment up to the date of receipt of the
amount of such payment from the Borrower at the rate equal to
the sum of the Margin and the cost to the Facility Agent and the
relevant Lender (as certified by it to the Borrower) of funding
that amount;
17.20.3 allow and facilitate the Independent Insurance Consultant
appointed by the Facility Agent (which shall initially be
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or such other insurance expert as shall be
acceptable to the Borrower and the Lenders) to advise the Agents
and the Lenders on all insurance matters and the Borrower shall
make available to the Independent Insurance Consultant all such
information on the insurance policies and the Project as the
Independent Insurance Consultant may reasonably require provided
that a report from such Independent Insurance Consultant may be
required where the Independent Insurance Consultant is unable to
certify that the coverage of any policy from time to time
renewed is less wide than prior to renewal;
17.20.4 enforce the interests and rights of the Borrower and the
Security Agent in the insurance policies and will permit the
Borrower's name to be used as and when required by the Security
Agent for this purpose;
17.20.5 in the event that the Facility Agent requires a claim under the
policies to be made or considered and the Borrower does not or
is unable to make or consider such claim, make available to the
Security Agent upon request certified copies of all policies,
contracts, binders, insurance slips and cover notes relating to
the Project, or any part of the Project and the benefits thereof
to the order of the Security Agent;
17.20.6 on or prior to the expiration of any policy evidencing the
insurance policies or within any grace period, deliver to the
Security Agent certificates of insurance policies issued by the
insurers under the policies required pursuant to this Agreement
or by an insurance broker authorised
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to bind such insurers evidencing the insurance policies and the
renewal of such insurance policies;
17.20.7 ensure that no reductions in limits of coverage or increases in
deductibles, exclusions or exceptions shall be made to any
insurance effected pursuant to this Agreement without the prior
consent of the Majority Lenders (such consent not to be
unreasonably delayed or withheld after consultation with the
Independent Insurance Consultant); and
17.20.8 promptly notify the Security Agent of any circumstances of which
it is aware which may give rise to an insurance claim or related
claims exceeding in aggregate US$5,000,000 or the equivalent
thereof in any other currency during a policy year;
17.21 NEW DEBT: subject to Clause 17.23, where it proposes to incur a New
Debt, (i) during its fund raising exercise, approach the Secured
Creditors, in addition to other banks or financial institutions, if it
is deemed desirable by the Borrower, for providing such New Debt and
(ii) give to the Lenders an opportunity to match the best terms offered
by the other financial institutions to the Borrower to fund such New
Debt;
17.22 TERMS AND CONDITIONS OF NEW DEBT: unless the Secured Liabilities are
fully repaid or will be fully repaid by the proceeds of the New Debt:
17.22.1 ensure that the terms and conditions of the New Debt shall
include but not be limited to the following:
17.22.1.1 the lender of the New Debt may not object to the
Majority Lenders putting the Borrower into judicial
management or having a receiver and manager appointed
over the Borrower and its assets;
17.22.1.2 the lenders of the New Debt shall not wind up the
Borrower without the prior consent of the Majority
Lenders, such consent shall not be unreasonably
withheld or delayed;
17.22.1.3 the lenders of the New Debt may not prevent the
Majority Lenders or the Facility Agent from selling
the Project as a going concern;
17.22.1.4 the repayment schedule of and any prepayment mechanism
for the New Debt shall not be structured in a manner
such that the repayment to the lenders of the New Debt
ranks ahead of the repayment to the Secured Creditors;
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17.22.2 any New Debt incurred by the Borrower shall not be for the
acquisition of the Original Scope Assets and the Borrower shall
be entitled to incur New Debt (and any hedging in respect of
such New Debt):
(a) to acquire assets apart from the Original Scope Assets
provided that (1) the Lenders shall have received legal
opinions reasonably satisfactory to them confirming
inter alia that the security interests are not and will
not be affected by such debt and (2) the Borrower shall
not incur New Debt for the purpose under this sub-Clause
(a) until the Borrower's financial covenants under
Clauses 15.8 and 15.9 can be tested and have been
achieved and, such covenants will not be breached as a
result (for the avoidance of doubt, there is no limit on
the amount of New Debt incurred under this sub-Clause
(a)); and
(b) to fund the working capital and general funding
requirements of the Borrower (excluding the acquisition
of assets), provided that the aggregate New Debt
incurred under this sub-Clause (b) shall not exceed
US$20,000,000; and
(c) an inter-creditor agreement shall be entered into
between the Secured Creditors and New Debt lenders on
terms reasonably acceptable to the Secured Creditors;
17.23 NEW DEBT AND EVENT OF DEFAULT: ensure that no New Debt shall be incurred
if an Event of Default or Potential Event of Default is continuing or if
the incurring of the New Debt results in the occurrence of an Event of
Default or Potential Event of Default;
17.24 YEAR 2000 READINESS: ensure that the Y2K Program is implemented and
completed in time in relation to material assets, processes and
technologies used in the Project;
17.25 EDB LOAN: (a) not make or agree to any amendment to the EDB Financing
Document without the prior consent in writing of all the Tranche B
Lenders and will notify the Facility Agent of the occurrence of any
Event of Default (as defined in the EDB Financing Document) by it under
the EDB Financing Document, (b) duly perform and comply with its
obligations under the EDB Financing Document (including, without
limitation, its obligation to repay the EDB Loan in accordance with the
repayment schedule as set out in the EDB Financing Document, and (c) as
soon as reasonably practicable and in any event within three (3)
Business Days of the same, notify the Agent of the principal amount and
date of each advance and any repayment or prepayment of the EDB Loan
under the EDB Financing Document together with a certified copy of the
notice of drawdown, repayment or prepayment as the case may be;
17.26 CHANGE OF BUSINESS: save with the prior consent in writing of the
Majority Lenders (such consent not to be unreasonably withheld or
delayed) ensure that there is no material change in the nature of its
business taken as a whole (whether by a single transaction or
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a number of related or unrelated transactions, whether at one time or
over a period of time and whether by disposal, acquisition or otherwise)
and shall carry on the business of ownership and operation of wafer
fabrication plant; and
17.27 NOTIFICATION OF HEDGE: notify the Facility Agent within thirty (30) days
of entering into any hedging agreement where such hedging agreement
entered into by the Borrower is for a nominal amount exceeding US$50
million or the equivalent thereof in any other currency and covering a
period exceeding twelve (12) months.
18. NEGATIVE COVENANTS
The Borrower undertakes to the Secured Creditors that so long as the Secured
Liabilities are outstanding under the Financing Documents, it shall not, without
the prior written consent of the Majority Lenders:
18.1 DIVIDEND: pay, make or declare any dividend or other distribution or
repurchase or redeem equity (under Clause 16.4.7) Provided that the
Borrower shall be entitled to declare a dividend and make payment of the
same to the extent that:
18.1.1 Commercial Production has been achieved;
18.1.2 such dividend, other distribution or other payment is permitted
by applicable law and will not result in the Borrower failing to
satisfy the Debt Service Coverage Ratio;
18.1.3 no Event of Default or Potential Event of Default is continuing
or would occur after giving effect to such payment, dividend,
other distribution or redemption; and
18.1.4 no event of Force Majeure exists which is not cured or any other
event entitling any party to a Project Document to suspend
performance of its obligations under any Project Document has
occurred and is continuing;
18.2 CONTINGENCY SHAREHOLDERS LOAN: repay the Contingency Shareholders Loan,
except only on a Repayment Date after all payment of Debt Service which
is due and payable on that Repayment Date has been made to the Facility
Agent, and there being no Event of Default or Potential Event of Default
or an event of Force Majeure either of which is continuing;
18.3 LOANS AND GUARANTEES: make, or permit to exist, any loans, grant any
credit (save in the ordinary course of business) or give any guarantee,
bond or indemnity (save in the ordinary course of business) to or for
the benefit of any person (save for such loans, indemnities or
undertakings to be given in respect of or for the benefit of any
employee or director of the Borrower) or otherwise voluntarily assume,
or permit to exist, any liability, whether actual or contingent, in
respect of any obligation of any other person or incur, or permit to
exist, any indebtedness for borrowed money other than New Debt,
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Shareholders Loans, any indebtedness of the type described in paragraphs
(c) and (d) of the definition of "Permitted Encumbrances" and any
indebtedness incurred pursuant to this Agreement;
18.4 EQUITY INJECTION: save for the purposes of effecting any equity
injections by the Shareholders as contemplated by the Financing
Documents and the Shareholders' Undertaking and then only to such extent
as shall not affect the proportional interests of the Shareholders in
the voting capital of the Borrower, issue any further shares or alter
any rights attaching to its issued shares in existence at the date
hereof;
18.5 DISPOSALS: save for disposal in the ordinary course of business or as
the Majority Lenders may consent (such consent not to be unreasonably
withheld) (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 arrange, or
otherwise) all or any part of its assets the aggregate net book value of
which either alone or when aggregated with all other disposals required
to be taken into account under this Clause 18.5 exceeds 5% of its total
assets in accordance with the Current Financial Report) and for the
avoidance of doubt such limit applies to total assets disposed in
aggregate over the duration of the Facilities, not individual years or,
merge or enter into any business unrelated to the Project;
18.6 NO SUBSIDIARIES: establish, incorporate or acquire any subsidiary or
subsidiaries without the prior consent in writing of the Facility Agent
acting on the instructions of the Majority Lenders;
18.7 RECONSTRUCTION, AMALGAMATION, ETC.: undertake or permit any merger,
reconstruction, amalgamation, reorganisation, merger, takeover,
substantial change of shareholders or any other schemes of compromise or
arrangement affecting its present constitution;
18.8 TERMINATION OF PROJECT DOCUMENTS: (i) terminate, or (ii) waive or amend
any of the Project Documents in any way that would have a Material
Adverse Effect;
18.9 COMPROMISE: accept liability in respect of, or compromise any, claim by
any third party that the Borrower has infringed any third party
intellectual property rights in the course of manufacturing products, in
the operation of the Plant or otherwise, where to do so would result in
any liability or require the Borrower to make any payment either of
which would reasonably be expected to have a Material Adverse Effect;
18.10 OPERATING LEASES: enter into any operating lease in the capacity of a
lessee except for any such lease entered into on commercial arm's length
terms in the ordinary course of its operations and so long as the value,
as reasonably determined by the Facility Agent, of the assets which are
the subject of such lease (when aggregated with the value of the assets
which are the subject of other leases required to be taken into account
under this Clause 18.10) does not exceed the limits specified in the
definition of "Permitted Encumbrance";
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18.11 ASSIGNMENT OF PROJECT DOCUMENTS: (other than as contemplated in the
Project Documents in particular, the assignment of monies due or to
become due to the Borrower to the Security Agent in accordance with the
Assignment of Contract Proceeds) assign or transfer any of its rights
and obligations under the Project Documents;
18.12 DEPRECIATION POLICY: effect any change to its depreciation policy
without the prior written consent of the Majority Lenders such consent
not to be unreasonably withheld;
18.13 NEGATIVE PLEDGE: create or have outstanding any Encumbrance on or over
any of the Assets, except for Permitted Encumbrance; and
18.14 HEDGING: without limiting the rights of the Borrower to enter into
hedging agreements in respect of New Debt in accordance with Clause
17.22, enter into any secured hedging transactions with any counterparty
save for an Approved Hedging Counterparty, or enter into any hedging
transactions with any counterparty unless (a) such counterparty (if not
an Approved Hedging Counterparty) has a long term credit rating of not
less than A by Standard and Poor's Corporation or A2 by ▇▇▇▇▇'▇ Investor
Services Inc, (b) the hedging transactions are on terms at least as
favourable to the Borrower as those available to the Borrower in the
market based on quotes from two leading banks which generally operate in
the swap market, and (c) such hedging transactions are unsecured.
19. EVENTS OF DEFAULT
19.1 EVENTS OF DEFAULT: It shall be an Event of Default if:
19.1.1 NON-PAYMENT: the Borrower or any Shareholder does not pay in the
manner and in the currency provided in any Financing Document or
the Shareholders Undertaking respectively any sum payable
thereunder when due unless such default is due solely to
technical reasons affecting the banking system unrelated to the
Borrower's ability to pay, and, such default is remedied within
three (3) Business Days of its occurrence;
19.1.2 BREACH OF OTHER OBLIGATIONS: the Borrower or any Obligor does
not perform or comply with any one or more of its obligations
(other than the payment obligation of the Borrower referred to
in Clause 19.1.1) under the Financing Documents, and, if in the
reasonable opinion of the Majority Lenders that default is
capable of remedy, it is not in the reasonable opinion of the
Majority Lenders remedied within fourteen (14) days of its
occurrence;
19.1.3 BREACH OF WARRANTY: any representation, warranty or statement by
the Borrower or any Obligor in the Financing Documents or in any
document
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delivered by them thereunder proves to have been incorrect,
untrue or misleading in any material respect when made or deemed
repeated and such default is not remedied within fourteen (14)
days of written notice to the Borrower or (as the case may be)
such Obligor;
19.1.4 CROSS DEFAULT: any indebtedness of the Borrower or any Obligor
in respect of borrowed money or any hedging transaction is or is
declared to be 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 Clause 19.1.4 unless and until the
aggregate amount of the indebtedness in respect of which one or
more of the events mentioned above in this Clause 19.1.4
has/have occurred equals or exceeds US$7,500,000 in the case of
the Borrower or US$20,000,000 in the case of each of the
Obligors or its equivalent in other currencies (as determined by
the Facility Agent) and in this regard, reference to
indebtedness in relation to any hedging transaction shall be the
net amount payable to the hedging counterparty in accordance
with the terms of the hedging agreement;
19.1.5 INSOLVENCY: the Borrower or any 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 a material part 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 a material part 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 a material part of the
indebtedness of the Borrower or that Obligor;
19.1.6 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 Obligor and is not
discharged or stayed within fourteen (14) days;
19.1.7 SECURITY ENFORCEABLE: any security on or over the assets of the
Borrower or any Obligor becomes enforceable;
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19.1.8 WINDING-UP: any step is taken by any person with a view to the
winding-up of the Borrower or any Obligor (except for the
purpose of and followed by a reconstruction, amalgamation,
reorganisation, merger or consolidation on terms approved by the
Majority Lenders 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 Obligor or over
any part of the assets of the Borrower or that Obligor;
19.1.9 CESSATION OF BUSINESS: the Borrower or any Obligor ceases or
threatens to cease to carry on all or a substantial part of its
business;
19.1.10 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 Obligor;
19.1.11 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 14.1.4 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);
19.1.12 ILLEGALITY: (a) it is or will become unlawful for the Borrower
or any Obligor to perform or comply with any one or more of its
obligations under (i) the Project Documents such as to adversely
affect the operation of the Project and/or repayment ability of
the Borrower or (ii) the Financing Documents, or (b) the
Security interest or any part thereof fail or fails to
constitute a valid and perfect first priority Encumbrance;
19.1.13 CESSATION: any of the Transaction Documents ceases for any
reason (or is claimed by the Borrower or any Obligor not) to be
the legal and valid obligations of the Borrower or that Obligor,
binding upon it in accordance with its terms provided that in
the case of a Project Document such cessation would adversely
affect the operation of the Project and/or repayment ability of
the Borrower;
19.1.14 LITIGATION: any litigation, arbitration or administrative
proceeding (other than any reasonably determined by the Majority
Lenders 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 or any Obligor under the Transaction
Documents provided that in the case of a Project Document such
proceeding would adversely affect the operation of the
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Project and/or repayment ability of the Borrower, or (b) which
has or will have a Material Adverse Effect on the Borrower or
that Obligor;
19.1.15 PLANT: the Plant or any part thereof is compulsorily acquired,
confiscated, nationalised, expropriated or damaged to an extent
which, in the reasonable opinion of the Majority Lenders,
renders it impossible or impracticable to reinstate it within
any reasonable period specified by the Majority Lenders, or if
any of the landlords under the Property Leases determines the
lease(s) thereunder or if there is a breach of any of the terms
of the Property Leases which would result in the termination of
the Lease;
19.1.16 PROJECT: the whole of the Project or any part of the Project
which, in the reasonable opinion of the Majority Lenders, is
material, is cancelled or abandoned;
19.1.17 DECLARED COMPANY: the Borrower or any Obligor is declared by the
Minister for Finance to be a company to which Part IX of the
Companies Act, Chapter 50, applies;
19.1.18 SHAREHOLDING:
19.1.18.1 (a) LTM ceases at any time to own, legally and
beneficially, at least 51% of the Shares or (b) CSM
ceases at any time to own, legally and beneficially,
at least 49% of the Shares;
19.1.18.2 (a) Lucent Technologies International Inc. shall cease
to hold directly or indirectly, a majority
shareholding in LTM or (b) STPL shall cease to hold
directly or indirectly a majority shareholding in CSM;
19.1.19 TOTAL LOSS: the declaration is made by the insurers of an actual
or constructive loss of a substantial portion of the Plant; or
any Force Majeure event or any other uninsurable event which has
a Material Adverse Effect occurs;
19.1.20 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 or that Obligor 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 Facility Agent
reasonably determines that the potential or actual liability of
the Borrower or that Obligor in respect of such law suit or
other legal proceedings
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would reasonably be likely to result in the Borrower being
unable to perform or comply with any obligation under the
Financing Documents;
19.1.21 FINAL JUDGMENT OR COURT ORDER: the Borrower or any Obligor does
not pay under or pursuant to any final judgment or court order
entered against it within ten (10) days of such final judgment
or court order, whether or not any enforcement proceedings have
commenced against the assets of the Borrower or that Obligor;
19.1.22 CHANGE IN CIRCUMSTANCES: any event occurs or circumstances arise
which in the reasonable opinion of the Majority Lenders will
affect the ability of the Borrower or any Obligor to perform or
comply with their respective obligations (a) under any Project
Documents (and in the case of the Obligor, which would have a
material adverse effect on the Borrower's ability to perform its
obligations under the Financing Documents), or (b) under any of
the Financing Documents;
19.1.23 BREACH OF PROJECT DOCUMENTS: (a) any breach of the ASAD
Agreement or the Licence and Technology Transfer Agreement by
any Shareholder which would have a Material Adverse Effect on
the Borrower occurs or (b) any material breach of any of the
Project Documents by any of the parties to that Project Document
occurs and if in the reasonable opinion of the Majority Lenders
that default is capable of remedy, it is not in the reasonable
opinion of the Majority Lenders remedied within ten (10) days of
its occurrence;
19.1.24 PAYMENT INTO PROJECT ACCOUNTS: the Borrower is in breach of its
obligations under Clause 16.2.1;
19.1.25 PRIVILEGES: the Borrower ceases to receive all or any of the
promotional privileges granted by the Singapore government and
referred to in item 17 in Schedule 2 save for the expiry of such
privileges or where loss of the same would not, in the opinion
of the Majority Lenders, result in a Material Adverse Effect;
and
19.1.26 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 Clauses 19.1.5, 19.1.6, 19.1.8
and 19.1.10.
19.2 ACCELERATION AND CANCELLATION: Upon the occurrence of an Event of
Default and unless the Borrower provides evidence reasonably
satisfactory to the Facility Agent that such Event of Default is no
longer continuing, the Facility Agent may (and, if so instructed by the
Majority Lenders, shall) by notice to the Borrower:
19.2.1 declare all or any part of the Advances to be immediately due
and payable (whereupon the same shall become so payable together
with
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accrued interest thereon and any other sums then owed by the
Borrower hereunder) or declare all or any part of the Advances
to be due and payable on demand of the Facility Agent; and/or
19.2.2 require the Borrower to either procure that the liabilities of
each of the Tranche B[G] Lenders under the EDB Guarantee is
promptly reduced to zero or provide EDB Cash Cover for the EDB
Guarantee in an amount specified by the Facility Agent,
whereupon the Borrower shall pay to the Facility Agent such
amount ("EDB Cash Cover"), which shall be deposited in the EDB
Cash Cover Account and applied towards the discharge of the
obligations of the Borrower to the Tranche B Lenders under or in
connection with this Agreement. Without prejudice to the other
provisions of this Clause 19.2.2 and any rights to which the
Facility Agent or any Tranche B Lender may be entitled, the
Facility Agent may:
(a) 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 Tranche B Lenders 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 9
shall apply to such prepayment or purchase;
(b) negotiate any compromise, release, discharge, reduction
or retirement of all or any of the obligations of the
Tranche B Lenders 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 9 shall apply to
such payment; and
(c) pay any amount received by it under Clause 19.2.2 above
to EDB in exchange for such payment of a release by EDB,
to the extent of such payment, of the obligations of the
Tranche B Lenders under the EDB Guarantee, and the
provisions of Clause 9 shall apply to such payment by
the Tranche B Lenders as if such payment had been made
pursuant to a demand by EDB under the EDB Guarantee;
and/or
19.2.3 declare that any unutilised portion of the Facilities shall be
cancelled, whereupon the same shall be cancelled and the
Available Commitment of each Lender shall be reduced to zero;
19.2.4 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 Facility
Agent and/or any of the Lenders
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under this Clause 19.2, the Facility Agent shall, within three (3)
Business Days after any request from the Borrower made at any time after
the making of a declaration by the Facility Agent under Clause 19.2.1
above by reason of the occurrence of an event referred to in Clause
19.1.22 above, notify the Borrower of the grounds for the determination
made by the Majority Lenders referred to in that Clause 19.1.22.
19.3 ADVANCES DUE ON DEMAND: If, pursuant to Clause 19.2, the Facility Agent
declares all or any part of the Advances to be due and payable on demand
of the Facility Agent, then, and at any time thereafter, the Facility
Agent may (and, if so instructed by the Majority Lenders, shall) by
notice to the Borrower:
19.3.1 where Advances have been made require repayment of all or such
part of the Advances on such date as it may specify in such
notice (whereupon the same shall become due and payable on the
date specified together with accrued interest thereon and any
other sums then owed by the Borrower hereunder) or withdraw its
declaration with effect from such date as it may specify; and/or
19.3.2 where the EDB Guarantee has been issued, procure the
cancellation of the EDB Guarantee or provide EDB Cash Cover in
an amount equal to the Maximum Amount to the Security Agent;
and/or
19.3.3 select as the duration of any Interest Period which begins
whilst such declaration remains in effect a period of six months
or less.
20. DEFAULT INTEREST
20.1 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 and Clause 9.2) when due or demanded, as the case may
be, it shall pay interest on the amount from time to time outstanding in
respect of that overdue sum for the period beginning on its due date and
ending on the date of its receipt by the Facility Agent (both before and
after judgment) in accordance with this Clause. For the purpose of this
Clause, if any payment is received by the Facility Agent on the due
date, but after the time required by Clause 13.1 and too late to be made
available by the Facility Agent on that due date to the person(s)
entitled to it under Clause 13.4, that payment shall be deemed to be
received on the next Business Day.
20.2 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 Facility Agent may from time to
time select and the rate of interest applicable for all or any part of a
particular Interest Period shall be the rate per annum equal to the sum
of 2% and the
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rate which would be applicable to that overdue sum for (or, as the case
may be, for that part of) that Interest Period under Clauses 6.1 and 6.4
if that overdue sum were a non-overdue Advance, except as follows:
20.2.1 subject to the following exceptions, until the third Business
Day after the Facility Agent becomes aware of the relevant
default, each Interest Period relating to the relevant overdue
sum shall be an "overnight" period beginning on one (1) 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 2%, the Margin and the rate at which the Lender is
offering "overnight" deposits in US Dollars or Singapore Dollars
(as the case may be), for that period in amounts comparable to
that overdue sum;
20.2.2 if the overdue sum is the principal portion of an Advance or the
Outstandings and becomes due otherwise than on an Interest
Payment Date relating to that Advance or the Outstandings, 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 2% and the rate applicable to
it immediately before it became due; and
20.2.3 if any event equivalent to that mentioned in Clause 11.3 occurs
in relation to any Interest Period applicable to an overdue sum,
the rate of interest payable on that sum for all or any part of
that Interest Period shall be the sum of 2%, the Margin and the
cost to the Lender (as certified by it to the Facility Agent and
expressed as a rate per annum) of funding that sum 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).
20.3 NOTIFICATION OF INTEREST RATES: The Facility Agent shall promptly notify
the Borrower of each rate of interest determined in accordance with
Clause 20.2.
20.4 PAYMENT AND COMPOUNDING OF DEFAULT INTEREST:
20.4.1 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.
20.4.2 Interest accrued under this Clause on an overdue sum shall be
due on demand by the Facility Agent but, if not previously
demanded, shall be paid when due in accordance with Clause 20.1.
If not paid when due,
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the interest shall be added to that overdue sum and itself bear
interest accordingly.
21. INDEMNITIES
21.1 MISCELLANEOUS INDEMNITIES: The Borrower shall on demand indemnify each
Secured Creditor against any funding or other cost, loss, expense or
liability sustained or incurred by it as a result of:
21.1.1 an Advance not being made or any EDB Guarantee not being issued,
as the case may be, by reason of non-fulfilment of any of the
conditions in Clauses 3 and 4 or the Borrower purporting to
revoke a notice requesting an Advance or issuance of the EDB
Guarantee;
21.1.2 the occurrence or continuance of any Event of Default or
Potential Event of Default; or
21.1.3 the receipt or recovery by any party (or the Facility 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.
21.2 BROKEN FUNDING COSTS: In the case of Clauses 21.1.1 and 21.1.3 above,
the amount payable shall in any event include the amount (if any) by
which:
21.2.1 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 London or, as the case
may be, 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:
21.2.2 the amount of interest which, in accordance with the expressed
terms of this Agreement, would otherwise be payable to that
party on its share of relevant 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.
21.3 CURRENCY INDEMNITY:
21.3.1 The currency of account of the Tranche A Outstandings is US
Dollars, and the Tranche B[T] Outstandings is US Dollars where
the Tranche
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B[T] Facility is drawn in US Dollars and, Singapore Dollars
where the Tranche B[T] Facility is drawn in Singapore Dollars;
in respect of liabilities under the EDB Guarantee, the currency
of account is Singapore Dollars.
21.3.2 Any payment or payments made to or for the account of any
Arranger, Agent or Lender (that Arranger, Agent or such Lender,
as the case may be, being hereinafter in this Clause 21.3
referred to as the "Creditor") in a currency (the currency in
which the relevant payment is made being hereinafter referred to
as the "Relevant Currency") other than the currency in which
such payment or payments are expressed to be payable under the
Financing Documents (the currency in which the relevant payment
is expressed to be payable being hereinafter referred to as the
"Currency of Account") (whether as a result of, or of the
enforcement of, a judgment or order of a court 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 Currency of Account which the Creditor is able, in
accordance with its usual practice, to purchase with the amount
so received or recovered in the Relevant Currency 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). If the amount of the Currency of Account
is less than the amount expressed to be due to the Creditor
under the Financing Documents, the Borrower shall indemnify it
against any loss sustained by it as a result. In any event, the
Borrower shall indemnify the Creditor against the cost of making
any such purchase. For the purpose of this Clause 21.3, it shall
be sufficient for the relevant Arranger, Agent or Lender, as the
case may be, to demonstrate that it would have suffered a loss
had an actual exchange or purchase been made.
21.4 INDEMNITIES SEPARATE: Each of the above indemnities 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 any Agent and/or any Lender 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 the Financing Documents
or any judgment or other order.
22. APPLICATION OF PROCEEDS
All and any moneys received from the Borrower or recovered or realised in
whatsoever manner from all or any of the securities created under or pursuant to
the Financing Documents shall be applied towards payment of the following sums
in the following order:
22.1 first, in or towards payment of costs, charges and expenses of and
incidental to the enforcement and/or realisation of the Financing
Documents including but not limited to the remuneration of any receiver
or receiver and manager and all fees (including but not
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limited to the agency fee), costs, charges and expenses whatsoever owing
to or incurred or paid by the Agents;
22.2 secondly, in or towards payment of all interest, fees and commissions
outstanding and owing to the Secured Creditors (on a pro-rata basis in
proportion to each Secured Creditor's share of the Secured Liabilities)
and the Agents under the Financing Documents or any secured Approved
▇▇▇▇▇▇;
22.3 thirdly, in or towards repayment of all principal amounts at that time
outstanding and owing to the Secured Creditors (on a pro-rata basis in
proportion to each Secured Creditor's share of the Secured Liabilities)
and the Agents under the Financing Documents or any secured Approved
▇▇▇▇▇▇;
22.4 fourthly, in or towards payment of all other moneys at that time owing
and outstanding to the Secured Creditors (on a pro-rata basis in
proportion to each Secured Creditor's share of the Secured Liabilities)
and the Agents under this Agreement; and
22.5 fifthly, in payment to the Borrower or other person entitled thereto.
23. THE AGENTS
23.1 APPOINTMENT OF AGENTS: Each Lender irrevocably appoints the Facility
Agent to act as its facility agent for the purpose of this Agreement,
and irrevocably appoints the Security Agent to act as its security agent
and security trustee for the purpose of the Security Documents and for
the benefit of the Secured Creditors, and authorises the Facility Agent
and the Security Agent to take such action and exercise such rights,
powers and discretions as are specifically delegated to each of them by
the Financing Documents and such other action, rights, powers and
discretions as are incidental thereto. However, neither the Facility
Agent nor the Security Agent may begin any legal action or proceeding in
the name of a Lender without its consent. The relationship between the
Facility Agent and the Security Agent and the Lenders is of agent and
principal only. The Facility Agent shall not be a trustee for any
Lender, nor an agent or trustee for the Borrower, under or in relation
to the Financing Documents.
23.2 AGENTS' DUTIES: The Agents shall:
23.2.1 promptly send to each Lender details of each communication
received by them from the Borrower under the Financing Documents
except that details of any communication relating to a
particular Lender shall be sent to that Lender only;
23.2.2 promptly send to each Lender any document or information
received by them under this Agreement;
23.2.3 not exercise any right, power, authority, privilege, discretion
or remedy vested in it under the Financing Documents unless and
until instructed by
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the Majority Lenders as to whether or not such right, power,
authority, privilege, discretion or remedy is to be exercised
and, if it is to be exercised, as to the manner in which it
should be exercised whereupon the Agents shall act according to
such instructions, save for those decisions which require the
instruction, consent or approval by all Lenders and correction
of manifest errors;
23.2.4 have only those duties, obligations and responsibilities
expressly specified in the Financing Documents; and
23.2.5 promptly notify the Lenders of the expiry of the Availability
Periods and any reduction in the Tranche B Outstandings.
23.3 AGENTS' RIGHTS: The Agents may:
23.3.1 perform any of their duties, obligations and responsibilities
under the Financing Documents by or through their personnel or
agents;
23.3.2 refrain from exercising any right, power or discretion vested in
them under the Financing Documents until they have received
instructions from the Majority Lenders 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 Lenders;
23.3.3 treat (i) the Lender which makes available any portion of the
Facilities as the person entitled to repayment in respect of
that portion unless the Facility Agent has received a notice of
the assignment of all or part of it in accordance with Clause 27
and (ii) the office set under a Lender's name at the end of this
Agreement as its Facility Office unless the Facility Agent has
received from that Lender a notice of change of Facility Office
in accordance with Clause 27, and may act on any such notice
until it is superseded by a further such notice;
23.3.4 refrain from doing anything which would or might in its opinion
be contrary to any law of any jurisdiction 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;
23.3.5 assume that no Event of Default or Potential Event of Default
has occurred and that all representations and warranties are
true when given unless an officer of that Agent, while active on
the account of the Borrower, acquires actual knowledge to the
contrary;
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23.3.6 refrain from taking any step (or further step) to protect or
enforce the rights of any Lender 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; and
23.3.7 without prejudice to the generality of the foregoing the
Security Agent may:
23.3.7.1 hold all title deeds or other Transaction Documents
relating to the property and assets of the Borrower to
which the Security Documents relate as agent of and for
the benefit of the Lenders in accordance with their
respective rights and interests under this Agreement and
under the relevant Security Documents and, upon request
by any of the Lenders, shall produce the same for
inspection by that Lender and upon being reimbursed for
its costs, to provide copies to that Lender;
23.3.7.2 be named as loss payee in all insurances to be taken
out by the Borrower pursuant to the Financing Documents
and to receive all receipts in respect of the payment of
premium thereof as agent of and for the benefit of the
Lenders;
23.3.7.3 execute all such documents and do all such things as it
is by the terms of the Financing Documents, or as it may
consider necessary for the purposes of or in connection
with the Financing Documents and required or entitled to
do;
23.3.7.4 execute and deliver on the Lenders' behalf all and any
such other documents or instruments as the Majority
Lenders may specifically approve in writing relating to
the Security Documents or the creation, maintenance or
protection of any security therefor; and
23.3.7.5 pay any monies received by it and/or the realisation of
the assets and property from and to which the Financing
Documents relate to the Facility Agent for application
in accordance with the provisions of Clause 22.
23.4 RIGHTS OF AGENTS: Each Agent may:
23.4.1 rely on any communication or document believed by it to
be genuine;
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23.4.2 rely as to any matter of fact which might be expected to
be within the knowledge of any Obligor on a statement by
or on behalf of such Obligor;
23.4.3 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;
23.4.4 retain for its own benefit and without liability to
account any fee or other sum receivable by it for its
own account; and
23.4.5 accept deposits from, lend money to or engage in any
kind of banking or other business with any party to any
Transaction Document or any subsidiary or associated
company of any such party (and, in each case, may do so
without liability to account).
23.5 EXONERATION OF AGENTS AND LEAD ARRANGERS: Neither Agent nor any of its
respective personnel or agents nor any of the Lead Arrangers shall be:
23.5.1 responsible for the adequacy, accuracy or completeness of any
representation, warranty, statement or information in the
Financing Documents or any notice or other document delivered
under the Financing Documents;
23.5.2 responsible for the execution, delivery, validity, legality,
adequacy, enforceability or admissibility in evidence of the
Financing Documents, any such notice or other document;
23.5.3 obliged to enquire as to the occurrence or continuance of an
Event of Default; or
23.5.4 liable for anything done or not done by it or any of them under
or in connection with the Financing Documents.
Accordingly, none of the Agents and the Lead Arrangers shall be under
any liability (whether in negligence or otherwise) in respect of such
matters, save in the case of gross negligence or wilful misconduct.
Each of the Lenders agrees that it will not assert or seek to assert
against any director, officer or employee of the Agents or any Lead
Arranger any claim it might have against any of them in respect of the
matters referred to in this Clause 23.5.
23.6 AGENTS AS LENDERS: Each Agent shall have the same rights and powers with
respect to its Available Commitment (if any), and Outstandings (if any)
as any other Lender and may exercise those rights and powers as if it
were not also acting as Agent.
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23.7 NON-RELIANCE ON AGENTS AND LEAD ARRANGERS: Each Lender 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, financial condition, creditworthiness, status and
affairs of the Borrower and of the adequacy and enforceability of any
security Provided pursuant to this Agreement, and has not relied, and
will not at any time rely, on any Lead Arranger, Agent and/or any other
Lender:
23.7.1 to provide it with any information relating to the business,
financial condition, creditworthiness, status or affairs of the
Borrower or any other person, whether coming into its possession
before or after the drawing down or utilisation of any part of
the Facilities (except, in the case of the Agents, as stated in
Clause 23.2 above);
23.7.2 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 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
Lead Arrangers or Facility Agent); or
23.7.3 to assess or keep under review the business, financial
condition, prospects, creditworthiness, status or affairs of the
Borrower or any other person.
23.8 NO DUTY TO KEEP INFORMED:
23.8.1 None of the Agents or the Lead Arrangers has any duty or
responsibility, either initially or on a continuing basis to
keep itself informed about the performance by the Borrower or
Shareholders of their respective obligations under the Financing
Documents or to provide any of the Lenders with credit or other
information with respect to the Borrower or Shareholders
(whether coming into its possession either before or after
accommodation is provided under the Financing Documents) except
as provided for in this Agreement.
23.8.2 Nothing in this Agreement obliges any of the Agents or the Lead
Arrangers to disclose information relating to the Borrower or
any other person if the disclosure would or, in the opinion of
the relevant Agent or the relevant Lead Arranger could
constitute a breach of law or duty of secrecy or
confidentiality.
23.9 INDEMNITY TO AGENTS: To the extent that the Borrower does not do so on
demand or is not obliged to do so, each Lender shall on demand indemnify
each Agent on a Pro Rata basis (or, if there are then no Outstandings,
in the proportion borne by its Available Commitment to the Available
Commitment of all the Lenders) against any cost, expense or liability
mentioned in Clause 25 or sustained or incurred by that Agent in
complying
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with any instructions from the Majority Lenders or otherwise sustained
or incurred by it in connection with this Agreement or its duties,
obligations and responsibilities under the Financing Documents except
the routine administrative costs and expenses of that Agent and provided
always that this indemnity shall not extend to any cost, expense or
liability sustained or incurred as a result of or in connection with
gross negligence or wilful default of that Agent.
23.10 RESIGNATION OF AGENT: Notwithstanding the irrevocable appointments in
Clause 23.1, an Agent may resign at any time (after consultation with
the Borrower) if it gives at least thirty (30) days' notice to the
Borrower and the Lenders. However, no resignation shall be effective
until the successor has been appointed and accepted its appointment in
accordance with this Clause 23.10. The Majority Lenders may appoint a
successor to the resigning Agent that is a reputable bank with an office
in Singapore but, if a successor has not been so appointed and accepted
its appointment within fifteen (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 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 the Financing Documents 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 the
Financing Documents.
24. SET-OFF AND PRO-RATA SHARING
24.1 SET-OFF: The Borrower further 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 any sum held to its order by and/or any liability of, at any
office of that party in or towards satisfaction of any sum then due from
it to that or any other party under the Financing Documents and unpaid
and notice of such application shall be given to the Borrower as soon as
practicable after such application. Such parties shall not be obliged to
exercise any of their rights under this Clause, which shall be without
prejudice to and in addition to any right of set-off, combination of
accounts, lien or other right to which they are at any time otherwise
entitled (whether by operation of law, contract or otherwise).
24.2 PRO RATA SHARING: If at any time the proportion received or recovered
(whether by direct payment, by exercise of any right of debit, set-off,
combination of accounts or lien, or otherwise) by any Lender or Agent in
respect of the total sum which has become due to
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it from the Borrower under the Financing Documents before that time
exceeds the proportion received or recovered by the Lender(s) receiving
or recovering the smallest proportion:
24.2.1 that Lender shall pay to the Facility Agent an amount equal to the
excess;
24.2.2 the Facility Agent shall distribute that payment as if it were paid by
the Borrower; and
24.2.3 as between the Borrower and the Lenders, that excess amount shall be
treated as having been paid to the Lenders to which (and in the
proportions in which) it is distributed under Clause 24.2.2 above,
rather than as having been paid to that Lender.
Within two (2) Business Days after any Lender receives or recovers any
such sum otherwise than by payment through the Facility Agent, that
Lender shall notify the Facility 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 Lender has to be refunded by it
(with or without interest), each Lender to whom any part of that amount
has been distributed shall (within two (2) Business Days after receiving
a request from that Lender) in turn pay to that Lender its proportionate
share of the amount to be refunded and of any interest required to be
paid by that Lender 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 Lender.
Any amount received or recovered by a Lender under a novation,
assignment, sub-participation (or the like) shall be ignored for the
purpose of this Clause 24.2.
24.3 RECOVERY BY LEGAL ACTIONS: Any amount which a Lender has received or
recovered as a result of taking legal proceedings for the enforcement of
the Financing Documents, in which any other Lender had an opportunity to
participate but did not so do nor take separate legal proceedings, shall
nonetheless be applied in accordance with the terms of Clause 24.2 but
each Lender shall indemnify the Lender(s) which take such legal
proceedings for all costs and expenses in connection with such legal
proceedings on a Pro Rata basis. No Lender shall be obliged to share any
amount received or recovered by it as a result of taking legal
proceedings in relation to the enforcement of security given to it other
than the Financing Documents.
25. EXPENSES AND STAMP DUTY
Whether or not any Advance is made or the EDB Guarantee issued under this
Agreement, the Borrower shall pay:
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25.1 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 Lead Arrangers, the
Agents and the Lenders 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 any Financing Document, such cost
to be in an amount mutually agreed to by the Borrower and the Lead
Arrangers;
25.2 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 Agents and/or the Lenders
in preserving, protecting or enforcing any rights of the Agents and/or
the Lenders under the Financing Documents and/or any such amendment,
supplement or waiver after the occurrence of an Event of Default; and
25.3 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, performance, enforcement or admissibility in evidence of the
Financing Documents and/or any such amendment, supplement or waiver, and
shall indemnify the Agents and the Lenders against any liability with
respect to or resulting from any delay in paying or omission to pay any
such duty or tax,
Provided Always that such costs and expenses shall, in each case, be
substantiated by the production of documentary evidence.
26. CALCULATIONS AND EVIDENCE
26.1 BASIS OF CALCULATION: All interest and commitment fee shall accrue from
day to day and shall be calculated on the basis of a year of 365 or 360
days as the case may be.
26.2 ACCOUNTS: The entries made in the accounts by each Lender and Agent 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.
26.3 CERTIFICATE CONCLUSIVE: A certificate by any Lead Arranger, Agent or any
Lender as to any sum payable to it under the Financing Documents and any
other certificate, determination, notification or opinion of any Lead
Arranger, Agent or Lender or the Majority Lenders provided for in this
Agreement, shall be conclusive save for manifest error.
26.4 CONTINUATION OF CERTAIN OBLIGATIONS: The obligations of any party under
or in respect of Clauses 11.2, 12, 20, 21, 23.9, 24 and 25 shall
continue even after the Facilities have been cancelled or terminated or
all the Outstandings have been repaid or prepaid.
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27. SUCCESSORS AND ASSIGNS
27.1 BENEFIT AND BURDEN OF THIS AGREEMENT: This Agreement and the Security
Documents shall benefit and be binding on the parties hereto, their
respective successors and any permitted assignee or transferee of some
or all of a party's rights or obligations under the Financing Documents.
Any reference in the Financing Documents to any party shall be construed
accordingly.
27.2 BORROWER: The Borrower may not assign or transfer all or any part of its
rights or obligations under the Financing Documents.
27.3 LENDERS:
27.3.1 Subject to Clause 27.4, any Lender may assign all or part of its
rights and/or transfer all or part of its obligations under the
Financing Documents provided it remains as Lender on record,
otherwise it will, except for an assignment or transfer by
reason of circumstances within Clause 11.4, obtain the
Borrower's consent (which consent shall not be unreasonably
withheld or delayed) prior to such assignment or transfer.
27.3.2 The assignment and/or transfer by a Lender may be effected by
the delivery to the Facility Agent of a Transfer Certificate
executed by the Transferor and the Transferee (and in respect of
a transfer of a Tranche B Outstandings under the Tranche B[G]
Facility, together with the EDB Guarantee executed by the
Transferee and EDB's written confirmation that the Transferor
will be released from its EDB Guarantee subject to receipt of
the Transferee's EDB Guarantee). On the later of the Transfer
Date specified in a Transfer Certificate and the Business Day
after the date of receipt of such Transfer Certificate by the
Borrower:
27.3.2.1 to the extent that in such Transfer Certificate the
Transferor seeks to transfer its rights and novate its
obligations under the Financing Documents, the Borrower
and the Transferor shall each be released from further
obligations to the other under the Financing Documents
and their respective rights against each other shall be
cancelled (such rights and obligations being referred
to in this Clause 27 as "cancelled rights and
obligations");
27.3.2.2 the Borrower and the Transferee shall each assume
obligations towards each other and/or acquire rights
against each other which differ from such cancelled
rights and obligations only insofar as the Borrower and
the Transferee have assumed and/or acquired the same in
place of the Borrower and the Transferor; and
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27.3.2.3 all parties shall acquire the same rights and assume
the same obligations with the Transferee between
themselves as they would have acquired and assumed had
the Transferee been an original party to each of the
Financing Documents instead of the Transferor with the
rights and/or obligations acquired or assumed by it as a
result of such transfer.
27.3.3 Any costs (including legal fees and stamp duty) incurred by the
Transferor or the Transferee in connection with the preparation
of the Transfer Certificate and/or otherwise in connection with
such transfer assignment or sub-participation shall be borne by
the Transferor or Transferee as may be agreed between
themselves.
27.3.4 On the date upon which a transfer takes effect pursuant to
Clause 27.3.2, the Transferee in respect of such transfer shall
pay to the Agent for its own account a transfer fee of S$1,000.
If any Transferee fails to pay any transfer fee payable by it
hereunder on the due date thereof, the Facility Agent may at any
time deduct an amount equal to such fee from any moneys from
time to time held by the Facility Agent for account of such
Transferee.
27.3.5 Upon receipt of a Transfer Certificate the Facility Agent shall
forthwith deliver to the Security Agent, the Borrower and the
other Lenders a copy of the Transfer Certificate.
27.3.6 Any such assignee or transferee shall be and be treated as the
Lender and beneficiary for all purposes of the Financing
Documents and shall be entitled to the full benefit of the
Financing Documents, to the same extent as if it were an
original party in respect of the rights or obligations assigned
or transferred to it.
27.4 TRANSFER OF OBLIGATIONS: Where a Lender transfers its obligations or any
part thereof under Clause 27.3, the Borrower shall execute such
documents as are necessary to release that Lender to the extent of the
transfer and join the transferee as a party to this Agreement and any
document related hereto or in connection with this Agreement.
27.5 DISCLOSURE OF INFORMATION: Each Agent or any Lender 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
Transferee, assignee, sub-participant or the like such information about
the Borrower or any other person as it may think fit and 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 19.2, (1) no such
consent will be required for any such disclosure and (2) each Agent or
the relevant Lender making any such disclosure shall, if practicable,
consult with the Borrower prior to making such disclosure and shall
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consider in good faith any request from the Borrower to such Agent or
such Lender not to make such disclosure or to delay making any such
disclosure).
27.6 FACILITY OFFICE: The initial Facility Office of each Lender is set out
under its name at the end of this Agreement. Each Lender may at any time
change its Facility Office in relation to all or a specified part of its
Commitment and/or Outstandings by notifying the Borrower of the fax
number, telex number and address of its new Facility Office. Each Lender
agrees that it will, in so far as it is reasonably practicable and to
the extent permitted by any applicable laws, ensure (except where such
change arises by reason of circumstances within Clause 11.1 otherwise
than by the Lender's default) that the Borrower will not be obliged, as
a result of any such change, to pay to that Lender under Clause 11.2 or
12.2 any sum in excess of the sum (if any) which it would have been
obliged to pay to the Lenders under the relevant Clause if such change
in the Facility Office had not taken place.
27.7 LIMITATION ON CERTAIN OBLIGATIONS OF BORROWER: If, at the time of any
assignment or transfer by a Transferor, circumstances exist which would
oblige the Borrower to pay to the Transferee under Clause 11.2 or 12.2
any sum in excess of the sum (if any) which it would have been obliged
to pay to that Transferor under the relevant Clause in the absence of
that assignment or transfer, the Borrower shall not be obliged to pay
that excess.
28. REMEDIES, WAIVERS, AMENDMENTS AND CONSENTS
28.1 NO IMPLIED WAIVERS, REMEDIES CUMULATIVE: No failure on the part of any
Agent or any Lender to exercise, and no delay on its part in exercising,
any right or remedy under any Financing Document 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 the
Financing Documents are cumulative and not exclusive of any rights or
remedies provided by law.
28.2 AMENDMENTS, WAIVERS AND CONSENTS:
28.2.1 The prior written consent of the Majority Lenders is required
for any waiver (which for the avoidance of doubt, shall not
amount to an amendment for purpose of Clause 28.2.2) of (a) any
Event of Default or any event which with the giving of notice
and/or lapse of time and/or upon the Majority Lenders making any
necessary determination under Clause 19 would constitute an
Event of Default and (b) any breach of any provision of the
Financing Documents.
28.2.2 The prior written consent of the Majority Lenders and the
Borrower is required for any amendment of this Agreement except
that an amendment which changes or relates to (a) the amount or
currency of the Available Facilities or any Lender's Commitment,
(b) the period during which any of
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the Facilities are available, (c) the amount or date of any
repayment, (d) the rate of interest, Guarantee Fee or other fees
or amounts payable, (e) the definitions of "Majority Lenders",
"Event of Default", "Potential Event of Default", "Permitted
Encumbrance", "Encumbrance", "indebtedness", "Pro-Rata" or
"Total Indebtedness", (f) the discharge of all or any of the
Security Documents, (g) the release of any Obligor from any of
its liabilities or obligations under the Financing Documents,
(h) the creation of any Encumbrance on any of the property and
assets charged or assigned to the Security Agent or the Lenders,
(i) any act or omission by the Borrower which would result in
the alteration or impairment of any of the Security Documents or
any of the rights created thereunder, (j) Final Repayment Dates,
the Repayment Dates, any provision which requires the consent of
all Lenders or all Secured Creditors or (k) this Clause 28.2
shall require the consent of all the Lenders and the Borrower
Provided always that any matter relating only to Tranche A
Facility shall be decided by the Majority Tranche A Lenders or
all of the Tranche A Lenders as the case may be, and any matter
relating only to Tranche B Facility shall be decided by the
Majority Tranche B Lenders or all of the Trache B Lenders, as
the case may be.
28.2.3 Notwithstanding any other provisions hereof, the relevant Agents
and the Lead Arrangers (as the case may be) shall not be obliged
to agree to any such amendment or waiver if the same would:
28.2.3.1 amend or waive this Clause 28, Clause 25 or Clause 23;
or
28.2.3.2 otherwise amend or waive any of the Agents' rights
hereunder or subject the Agents or the Lead Arrangers
to any additional obligations hereunder.
Any waiver or consent shall be effective only in the instance and for
the purpose for which it is given.
29. COMMUNICATIONS
29.1 ADDRESSES: Each communication under this Agreement shall be made in
writing but, unless otherwise stated, may be made by telefax or letter.
Each communication or document to be delivered to any party under this
Agreement shall be sent to that party at the telefax or address, and
marked for the attention of the person (if any), from time to time
designated by that party to the Facility Agent (or, in the case of the
Facility Agent, by it to each other party) for the purpose of this
Agreement. The initial telefax, 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 shall
be sent to, by or through the Facility Agent.
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29.2 DEEMED DELIVERY: Any communication from the Borrower shall be
irrevocable, and shall not be effective until received by the Agents and
the Lenders or any of them (as the case may be). Any communication to
any person under this Agreement shall be deemed to have been received by
that person (if sent by telefax) on the day of dispatch or (in any other
case) when left at the address required by Clause 29.1 above or two (2)
days after being sent by prepaid post addressed to it at that address
provided always that in the case of communication by fax, the faxes must
be received by that person to whom it is addressed in a complete and
legible form.
30. SEVERABILITY
30.1 If any one or more of the provisions contained in this Agreement shall
be deemed invalid, unlawful or unenforceable in any respect under any
applicable law, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected
or impaired.
30.2 The illegality, invalidity or unenforceability of any provision of this
Agreement under any law of any jurisdiction shall not affect its
legality, validity or enforceability under any other jurisdiction nor
the legality, validity or enforceability of any other provision.
31. COUNTERPARTS
This Agreement may be signed in any number of counterparts, all of which taken
together and when delivered to the Facility Agent shall constitute one and the
same instrument. Any party may enter into this Agreement by signing any such
counterpart.
32. NATURE OF RIGHTS AND OBLIGATIONS
32.1 LIABILITY SEVERAL: The liability of the Lenders are several. No party to
this Agreement shall be responsible for the obligations of any other
party. The failure of a Lender to perform its obligations shall not
release any other party from its obligations.
32.2 RIGHTS SEVERAL: The rights of the Lenders 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 Lead Arranger, any Agent or any Lender to be joined as an additional
party in any proceedings for this purpose.
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33. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of
Singapore and the parties hereto hereby submit to the non-exclusive jurisdiction
of the Singapore Courts.
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SCHEDULE 1
LENDERS' COMMITMENTS
PART A PART B
------------------------------ -------------------------------
Tranche A Tranche B[G]
Lenders Commitments Commitments Tranche B[T] Commitments
------- ----------- ------------ ----------- -----------
(US$) (S$) (S$) (US$)
----------- ------------ ----------- -----------
1. ABN AMRO Bank N.V., Singapore 46,000,000 40,000,000 36,660,000 24,000,000
Branch
2. Citibank, N.A., Singapore Branch 46,000,000 40,000,000 36,670,000 24,000,000
3. Overseas Union Bank Limited 46,000,000 40,000,000 36,670,000 24,000,000
4. Banque Nationale de Paris 32,000,000 27,000,000 27,000,000 15,000,000
5. Commerzbank Aktiengesellschaft, 32,000,000 27,000,000 27,000,000 15,000,000
Singapore Branch
6. Den Danske Bank Aktieselskab, 32,000,000 27,000,000 27,000,000 15,000,000
Singapore Branch
7. ING Bank N.V., Singapore Branch 15,000,000 11,000,000 11,000,000 6,000,000
8. The Bank of Tokyo-Mitsubishi, Ltd., 15,000,000 10,000,000 10,000,000 6,000,000
Singapore Branch
9. KBC Bank N.V., Singapore Branch 9,000,000 7,000,000 7,000,000 4,000,000
10. NATEXIS Banque, Singapore 9,000,000 7,000,000 7,000,000 4,000,000
Branch
11. The Norinchukin Bank, Singapore 9,000,000 7,000,000 7,000,000 4,000,000
Branch
12. UniCredito Italiano SpA, Singapore 9,000,000 7,000,000 7,000,000 4,000,000
Branch
----------- ----------- ----------- -----------
Total 300,000,000 250,000,000 240,000,000 145,000,000
=========== =========== =========== ===========
*Assumption: US$/S$ Exchange Rate = 1.67
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SCHEDULE 2
CONDITIONS PRECEDENT
1. a copy of each of the Certificate of Incorporation and Memorandum and
Articles of Association of the Borrower and each Shareholder certified by
an Authorised Signatory;
2. a copy of the resolution of the Board of Directors of the Borrower in the
Agreed Form certified by an Authorised Signatory duly authorising:
2.1 the obtaining of the Facilities on the terms and conditions herein
contained;
2.2 the person(s) to sign the Notice of Drawing and all other notices
referred to in Clauses 7 and 29 and all documents related hereto and
the transaction herein with specimen signatures;
2.3 the execution of the Financing Documents;
2.4 the affixing of the Common Seal of the Borrower to the Financing
Documents which are to be executed under seal;
3. a set of specimen signatures of the Authorised Signatories referred to in
paragraph 2.2 above duly authenticated by the Secretary or Director of the
Borrower;
4. a certificate by a director of the Borrower in the terms prescribed by the
Facility Agent certifying, inter alia, that on the date thereof (a) the
documents referred to in items 1 (in relation to the Borrower), 2 and 3
above are in full force and effect, (b) all consents required for its entry
into and performance of its obligations under the Financing Documents have
been obtained or that such consents are not required, (c) it is not under
receivership or judicial management; (d) there are no liquidation or
dissolution proceedings commenced against it; and (e) no notice under
Section 254(2)(a) or Section 344(1) of the Companies Act (Cap. 50) has been
received by it;
5. a duly certified copy of the resolution of the Board of Directors of each
of the Shareholders in respect of its execution of (a) the Shareholders
Undertaking, and (b) an agreement supplemental to the ASAD Agreement (the
"Supplemental ASAD Agreement");
6. a certificate by a director of each of the Shareholders in the terms
prescribed by the Facility Agent certifying, inter alia, that on the date
thereof (a) the resolution passed by it, referred to in item 5 above, is in
full force and effect, (b) all consents required for its entry into and
performance of its obligations under the Shareholders Undertaking and the
Supplemental ASAD Agreement have been obtained or that such consents are
not required, (c) it is not under receivership or judicial management; (d)
there are no liquidation or dissolution proceedings commence against it;
and (e) no notice under
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Section 254(2)(a) or Section 344(1) of the Companies Act (Cap. 50) has been
received by it;
7. a certified true copy of each of the Project Documents (including the
Supplemental ASAD Agreement);
8. a certified true copy of the Certificate of Statutory Completion in respect
of the Property;
9. the written consent of JTC in respect of the Sub-Lease and a certificate
from a director of the Borrower confirming that all the conditions set out
therein have been complied with;
10. the written consent of STPL in respect of the Sub-Lease;
11. the Business Plan containing the Base Case;
12. a certified true copy of the latest draft EDB Financing Document;
13. the Debenture duly executed by the Borrower together with duly executed
Forms 33 and 34;
14. the Assignment of Contract Proceeds duly executed by the Borrower together
with duly executed Forms 33 and 34;
15. the Shareholders Undertaking duly executed by the Shareholders;
16. evidence satisfactory to the Security Agent that certified copies of all
insurance policies referred to in Clause 17.20 with the Security Agent's
interest as trustee for the Lenders duly endorsed in such policies have
been delivered to and received by (a) Messrs ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ in respect of
certain policies and (b) J&H ▇▇▇▇▇ & McLennan Singapore Pte Ltd in respect
of certain other policies together with written confirmation that Security
Agent is granted free access thereto for as long as any Secured Liabilities
remain outstanding;
17. certified copy of the report by an Independent Insurance Consultant
acceptable to the Facility Agent confirming inter alia the adequacy of all
insurance coverage in respect of the Project and operation of the Plant,
and that such insurance policies are in full force and effect;
18. a copy of the letter of offer of the ten-year pioneer certificate; and
19. legal opinion issued by Messrs Thio Su Mien & Partners, relating to the
Financing Documents and legal opinion issued by Messrs ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
relating to the Project Documents in the Agreed Form.
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SCHEDULE 3
NAME, ADDRESS AND TELEPHONE NUMBER OF BORROWER
NOTICE OF DRAWING
[Facility Agent]
Dear Sirs,
Pursuant to Clause 4 of the Facility Agreement dated [ ] 1999 (the "Facility
Agreement") in respect of Tranche A Facility/Tranche B[T] Facility* we hereby
give you notice for the following drawdown:
Facility : Tranche A Facility/Tranche B[T] Facility*
Amount of Advance : Dollars ($ ) for our
working capital/payment of the Project Costs stated in the
bills and/or invoices attached/repayment of Bridge Loan
(first drawing only)* Date of Drawdown :
*Interest Period : 1, 3 or 6* months
Payee(s) :
We confirm:
(1) that the Conditions Precedent under Clause 3 of the Facility Agreement have
been complied with;
(2) that each of the Representations and Warranties contained in Clause 14 of
the Facility Agreement are true and accurate in all material respects;
(3) that as at the date hereof, no Event of Default or Potential Event of
Default has occurred and is continuing. We further represent warrant and
undertake that no Event of Default or Potential Event of Default will exist
at the date of the intended drawdown;
[(4) that Commercial Production is or will occur prior to the first Repayment
Date;](1) and
Please credit to our Account [ ] with the Project Account Bank the
proceeds of the Advance herein requested.
All capitalised terms herein shall have the meanings ascribed to them in the
Facility Agreement.
Yours faithfully,
Company Stamp ___________________________________
(Name and Signature of Director)
* Delete as applicable
(1) Required only until Commercial Production
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SCHEDULE 4
REQUEST FOR ISSUE OF EDB GUARANTEE
[Facility Agent]
Dear Sirs,
Pursuant to Clause 7 of the Facility Agreement dated [] 1999 (the "Facility
Agreement") in respect of Tranche B[G] Facility we hereby request for the
issuance of the EDB Guarantee:
Amount : Singapore Dollars
(S$ )
Date of Issuance of EDB Guarantee :
Beneficiary : Economic Development Board
We confirm:
(1) that the Conditions Precedent under Clause 3 of the Facility Agreement have
been complied with;
(2) that each of the Representations and Warranties contained in Clause 14 of
the Facility Agreement are true and accurate in all material respects;
(3) that as at the date hereof, no Event of Default or Potential Event of
Default has occurred. We further represent warrant and undertake that no
Event of Default or Potential Event of Default will exist at the date of
the intended drawdown;
(4) that Commercial Production is or will occur prior to the first Repayment
Date;
*(5) we are drawing on the EDB Loan on [].
All capitalised terms herein shall the meanings ascribed to them in the Facility
Agreement.
Yours faithfully,
Company Stamp ___________________________________
(Name and Signature of Director)
*Delete as applicable
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SCHEDULE 5
PROJECT DOCUMENTS
1. the Joint Venture Agreement;
2. the ASAD Agreement and the Supplemental ASAD Agreement (as defined in
Schedule 2);
3. the License and Technology Transfer Agreement;
4 the CSM-SMP Cost Sharing Agreement dated 17th February 1998 and made
between CSM and SMP;
5 the sub-lease dated 17 February 1998 made between CSM and the Borrower;
6. any document designated by the Agents and the Borrower in writing as a
Project Document.
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SCHEDULE 6
LIST OF SECURITY DOCUMENTS
1. Debenture
2. Assignment of Contract Proceeds (ASADA)
3. Shareholders Undertaking
4. Any other document as may be agreed to in writing between the Agents and
the Borrower
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SCHEDULE 7
SWAP RATE
"Swap Rate" means, in relation to an Interest Period relating to an Advance or
overdue sum, the rate per annum (as determined by the Facility Agent) appearing
as of 11 a.m. on the second Business Day before the first day of that Interest
Period relating to that Advance or, as the case may be, that overdue sum under
the caption "ASIAN CURRENCY SWAP OFFER RATE FIXING AT 11 A.M. SINGAPORE TIME" on
Telerate page 44178 (or such other page as may replace Telerate Page 44178 for
the purpose of displaying the swap rate of leading reference banks) for the same
period as that Interest Period (or, if the periods are not the same, such period
as the Facility Agent determines to be substantially the same), but if no such
quotation appears, the Swap Rate shall be the rate per annum (expressed as a
percentage) determined by the Facility Agent equal to the arithmetic mean
(rounded up, if necessary, to the next 1/16 per cent) of the respective rates
per annum determined by each of the Reference Banks and quoted by such Reference
Bank to the Facility Agent to be in relation to the Interest Period relating to
that Advance or, as the case may be, that overdue sum equal to Y (which shall be
calculated to the nearest four decimal places) calculated in accordance with the
following formula:
365 F 36500 F 365
Y = ( R x ---) + (- x -----) + (- x R x ---)
▇▇▇ ▇ ▇ ▇ ▇▇▇
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 by such
Reference Bank in offering to sell US Dollars forward in exchange for
Singapore Dollars on the last day of that Interest Period relating to that
Advance or, as the case may be, that 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 that Advance or, as the case
may be, that overdue sum;
S = the exchange rate at which such Reference Bank sells US Dollars spot in
exchange for Singapore Dollars in the Singapore foreign exchange market, as
quoted by such Reference Bank at or about 11 a.m. on the second Business
Day before the first day of that Interest Period relating to that Advance
or, as the case may be, that overdue sum;
R = the rate at which such Reference Bank is offering US Dollar deposits for
that Interest Period relating to that Advance or, as the case may be, that
overdue sum in an amount comparable to the US Dollar equivalent of that
Advance or, as the case may be, that overdue sum (such US Dollar equivalent
to be determined by such Reference Bank at such rate or rates as such
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 that Advance or,
as the case may be, that overdue sum; and
N = the actual number of days in that Interest Period relating to that Advance
or, as the case may be, that overdue sum.
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SCHEDULE 8
REPAYMENT SCHEDULE OF TRANCHE A OUTSTANDINGS
REPAYMENT DATE INSTALMENT AMOUNT
-------------- -----------------
1. Date falling on the expiry of the Availability Period US$42,857,142.86
("1st Instalment Date")
2. Date falling 6 months from the expiry of the 1st US$42,857,142.86
Instalment Date ("2nd Instalment Date")
3. Date falling 6 months from the expiry of the 2nd US$42,857,142.86
Instalment Date ("3rd Instalment Date")
4. Date falling 6 months from the expiry of the 3rd US$42,857,142.86
Instalment Date ("4th Instalment Date")
5. Date falling 6 months from the expiry of the 4th US$42,857,142.86
Instalment Date ("5th Instalment Date")
6. Date falling 6 months from the expiry of the 5th US$42,857,142.86
Instalment Date ("6th Instalment Date")
7. Date falling 6 months from the expiry of the 6th US$42,857,142.84
Instalment Date
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SCHEDULE 9
INSURANCE
1. Prior to Completion of the Plant:
(a) statutory workmen's compensation insurance;
(b) third party liability insurance;
(c) marine cargo insurance; and
2. After Completion of the Plant:
(a) statutory workmen's compensation insurance;
(b) third party liability insurance;
(c) marine cargo insurance;
(d) property damage insurance; and
(e) business interruption insurance.
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SCHEDULE 10
FORM OF EDB GUARANTEE
[To: Economic Development Board
1. We refer to an EDB Loan Agreement (the "EDB Loan Agreement") dated [] 1999
made between yourselves and Silicon Manufacturing 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$240,000,000.
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 (3) 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 (3) 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
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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
(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 A 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
Citicorp Investment Bank (Singapore) Limited (the "Agent") of the
occurrence of an Event of Default (as defined in the Syndicated Credit
Facilities Agreement dated [ ] made between (1) the Borrower, as
borrower, (2) the Lead Arrangers named therein, as lead arrangers, (3) the
Lenders named therein, as lending banks, (4) Citicorp Investment Bank
(Singapore) Limited as facility agent and (5) Citicorp Investment Bank
(Singapore) Limited as security agent.
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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
B hereto;
"Maximum Interest Liability" means, at any time during a Relevant Period,
the amount specified against that Relevant Period in column (3) of Schedule
B 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 B hereto;
"Maximum Principal Liability" means, at any time during a Relevant Period,
the amount specified against that Relevant Period in column (5) of Schedule
B hereto; and
"Relevant Periods" means each of the periods specified as a Relevant Period
in column (1) of Schedule B 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.
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.
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(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 Syndicated Credit Facilities 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 Facility Agent at ▇ ▇▇▇▇▇▇▇ ▇▇▇ #▇▇-▇▇/▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, 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 November 2005
("the Expiry Date") 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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SCHEDULE A
GUARANTOR BANK FRACTION
1. ABN AMRO Bank N.V., Singapore Branch 40/250
2. Citibank, N.A., Singapore Branch 40/250
3. Overseas Union Bank Limited 40/250
4. Banque Nationale de Paris 27/250
5. Commerzbank Aktiengesellschaft, Singapore Branch 27/250
6. Den Danske Bank Aktieselskab, Singapore Branch 27/250
7. ING Bank N.V., Singapore Branch 11/250
8. The Bank of Tokyo-Mitsubishi, Ltd., Singapore Branch 10/250
9. KBC Bank N.V., Singapore Branch 7/250
10. NATEXIS Banque, Singapore Branch 7/250
11. The Norinchukin Bank, Singapore Branch 7/250
12. UniCredito Italiano SpA, Singapore Branch 7/250
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SCHEDULE B
Maximum Interest
Liability and Principal Amount
Maximum Aggregate Default Interest Maximum Principal Paid Per
Date of Payment Liability Liability Liability Instalment
--------------- ----------------- ----------------- ----------------- ----------------
250,000,000 10,000,000 240,000,000 0
1st September 2002 215,714,286 10,000,000 205,714,286 34,285,714
1st March 2003 179,923,016 10,000,000 171,428,572 34,285,714
1st September 2003 143,938,413 10,000,000 137,142,858 34,285,714
1st March 2004 107,953,810 10,000,000 102,857,144 34,285,714
1st September 2004 71,969,207 10,000,000 68,571,430 34,285,714
1st March 2005 35,984,604 10,000,000 34,285,716 34,285,714
1st September 2005 0 0 0 34,285,716
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IN WITNESS WHEREOF this Guarantee has been entered into on 1999.
[ ]
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
[ ]
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
[ ]
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
106
103
107
103
[ ]
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
[ ]
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
[ ]
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
[ ]
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
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SCHEDULE 11A
REPAYMENT SCHEDULE
TRANCHE B[T] FACILITY (S$)
Principal Amount Paid
Date of Payment Maximum Aggregate Liability Per Instalment
--------------- --------------------------- ---------------------
240,000,000 0
1st September 2002 215,714,286 34,285,714
1st March 2003 179,923,016 34,285,714
1st September 2003 143,938,413 34,285,714
1st March 2004 107,953,810 34,285,714
1st September 2004 71,969,207 34,285,714
1st March 2005 35,984,604 34,285,714
1st September 2005 0 34,285,716
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SCHEDULE 11B
REPAYMENT SCHEDULE
TRANCHE B[T] FACILITY (US$)
Principal Amount Paid
Date of Payment Maximum Aggregate Liability Per Instalment
--------------- --------------------------- ---------------------
145,000,000
1st September 2002 124,285,714.30 20,714,285.70
1st March 2003 103,571,428.60 20,714,285.70
1st September 2003 82,857,142.90 20,714,285.70
1st March 2004 62,142,857.20 20,714,285.70
1st September 2004 41,428,571.50 20,714,285.70
1st March 2005 20,714,285.80 20,714,285.70
1st September 2005 20,714,285.80
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IN WITNESS WHEREOF the parties hereto have duly executed this Agreement.
THE BORROWER
SILICON MANUFACTURING PARTNERS PTE LTD
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax Number: ▇▇▇ ▇▇▇▇
By: /s/ Chia Song Hwee
---------------------------------------
Name: Chia Song Hwee
---------------------------------------
Title: Chief Financial Officer
---------------------------------------
THE LEAD ARRANGERS
ABN AMRO BANK N.V., SINGAPORE BRANCH
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax Number: ▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- ---------------------------------
Name: ▇▇▇▇▇ ▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- ---------------------------------
Title: Country Manager Title: Senior Vice President, Head
-------------------------------- ---------------------------------
of Structured Finance Asia
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CITIBANK, N.A., SINGAPORE BRANCH
▇ ▇▇▇▇▇▇▇ ▇▇▇ #▇▇-▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax Number: ▇▇▇ ▇▇▇▇
By: /s/ SUNIL SNEENIVASAN
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Name: Sunil Sneenivasan
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Title: Chief Executive Officer
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OVERSEAS UNION BANK LIMITED
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax Number: ▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
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Title: President and Chief Executive Officer
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THE LENDERS
ABN AMRO BANK N.V., SINGAPORE BRANCH
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax Number: ▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- ---------------------------------
Name: ▇▇▇▇▇ ▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- ---------------------------------
Title: Country Manager Title: Senior Vice President, Head of
-------------------------------- ---------------------------------
Structured Finance Asia
---------------------------------
CITIBANK, N.A., SINGAPORE BRANCH
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax Number: ▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Title: Chief Executive Officer
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OVERSEAS UNION BANK LIMITED
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax Number: ▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
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Title: President and Chief Executive Officer
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BANQUE NATIONALE DE PARIS
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax Number: ▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Director, Project Finance and
Structured Debt, Asia
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COMMERZBANK AKTIENGESELLSCHAFT, SINGAPORE BRANCH
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax Number: ▇▇▇ ▇▇▇▇
By: /s/ ▇. ▇▇▇▇▇ By: /s/ A.R. ▇▇▇▇▇▇▇
-------------------------------- ---------------------------------
Name: ▇. ▇▇▇▇▇ Name: A.R. ▇▇▇▇▇▇▇
-------------------------------- ---------------------------------
Title: Manager Title: AGM
-------------------------------- ---------------------------------
114
▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ BRANCH
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ #▇▇-▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax Number: ▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------- ---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------- ---------------------------------
Title: General Manager Title: Assistant General Manager
-------------------------------- ---------------------------------
ING BANK N.V., SINGAPORE BRANCH
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ #▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax Number: ▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ KOK WEE By: /s/ TON ▇▇▇ ▇▇▇▇▇
-------------------------------- ---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇ Kok Wee Name: Ton ▇▇▇ ▇▇▇▇▇
-- ------------------------------- ---------------------------------
Title: Senior Vice President Title: Senior Vice President
-------------------------------- ---------------------------------
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THE BANK OF TOKYO-MITSUBISHI, LTD., SINGAPORE BRANCH
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ #▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax Number: ▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title:
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KBC BANK N.V., SINGAPORE BRANCH
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax Number: ▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇ ▇▇▇ MIN By: /s/ ▇▇▇▇ ▇▇▇▇ OUN
-------------------------------- ---------------------------------
Name: ▇▇▇▇ ▇▇▇ Min Name: ▇▇▇▇ ▇▇▇▇ Oun
-------------------------------- ---------------------------------
Title: Head, Corporate Banking Title: Head, Local Corporates
-------------------------------- ---------------------------------
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▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ BRANCH
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ #▇▇-▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax Number: ▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ HANG
-------------------------------- ---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ Hang
-------------------------------- ---------------------------------
Title: General Manager Title: First Vice President, Head of
-------------------------------- ---------------------------------
Corporate & Institutional Banking
THE NORINCHUKIN BANK, SINGAPORE BRANCH
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ #▇▇-▇▇ ▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax Number: ▇▇▇ ▇▇▇▇
By: /s/ MINORU OASHI
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Name: Minoru Oashi
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Title: Manager, Corporate Finance
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UNICREDITO ITALIANO SPA, SINGAPORE BRANCH
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax Number: ▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ PAPA
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Papa
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Title: General Manager Title: Deputy General Manager
-------------------------------- ---------------------------------
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THE FACILITY AGENT
CITICORP INVESTMENT BANK (SINGAPORE) LIMITED
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇ #▇▇-▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax Number: ▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇
--------------------------------
Title: Managing Director
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THE SECURITY AGENT
CITICORP INVESTMENT BANK (SINGAPORE) LIMITED
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇ #▇▇-▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax Number: ▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇
--------------------------------
Title: Managing Director
--------------------------------
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APPENDIX A
FORM OF TRANSFER CERTIFICATE
To: The Facility Agent
as agent for the Lenders referred to below
[ Date ]
TRANSFER CERTIFICATE
relating to the agreement (as from time to time amended, varied, novated or
supplemented, the "Agreement") dated [ ] whereby inter alia facilities
totalling [US$300,000,000] was made available to SILICON MANUFACTURING PARTNERS
PTE LTD as Borrower by the Lenders on whose behalf Citicorp Investment Bank
(Singapore) Limited acted as Facility Agent in connection therewith.
1. Terms defined in the Agreement shall, subject to any contrary indication,
have the same meaning herein. The terms Transferor, Transferee and
Participation are defined in the schedule hereto.
2. The Transferor confirms that the Participation is an accurate summary of
its participation in the Agreement and requests the Transferee to accept
and procure the transfer to the Transferee by way of novation of the
portion transferred as specified below by counter-signing and delivering
this Transfer Certificate to the Facility Agent at its address for the
purpose of Clause 27 of the Agreement.
3. The Transferee hereby requests the Facility Agent to accept this Transfer
Certificate as being delivered to the Facility Agent pursuant to and for
the purposes of Clause 27 of the Agreement so as to take effect in
accordance with the terms thereof on the Transfer Date or on such later
date as may be determined in accordance with the terms thereof.
4. The Transferee warrants that it has received a copy of each of the
Financing Documents executed for the benefit of the Transferor together
with such other information as it has required in connection with this
transaction and that it has not relied and will not hereafter rely on the
Transferor to check or enquire on its behalf into the legality, validity,
effectiveness, adequacy, accuracy or completeness of any such information
and further agrees that it has not relied and will not rely on the
Transferor to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or nature of the
Borrower.
5. The Transferee hereby undertakes with the Transferor and each of the other
parties to the Financing Documents that it will perform in accordance with
their terms all those obligations which by the terms of the Financing
Documents will be assumed by it after
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delivery of this Transfer Certificate to the Facility Agent and
satisfaction of the conditions (if any) subject to which this Transfer
Certificate is expressed to take effect.
6. The Transferor makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Financing Documents or any document
relating thereto and assumes no responsibility for the financial condition
of the Borrower or the performance and observance by the Borrower of any of
its obligations under the Financing Documents or any document relating
thereto and any and all such conditions and warranties, whether express or
implied by law or otherwise, are hereby excluded.
7. The Transferor hereby gives notice that nothing herein or in the Financing
Documents (or any document relating thereto) shall oblige the Transferor to
(i) accept a re-transfer from the Transferee of the whole or any part of
its rights, benefits and/or obligations under the Financing Documents
transferred pursuant hereto or (ii) support any losses directly or
indirectly sustained or incurred by the Transferee for any reason
whatsoever including, without limitation, the non-performance by the
Borrower or any other party to the Financing Documents or any of them (or
any document relating thereto) of its obligations under any such document.
The Transferee hereby acknowledges the absence of any such obligation as is
referred to in (i) or (ii) above.
8. This Transfer Certificate and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with Singapore
law.
THE SCHEDULE
1. Transferor:
2. Transferee:
3. Transfer Date:
4. Participation Portion Transferred
------------- -------------------
(i) Available Tranche A Commitment: US$ US$
(ii) Tranche A Outstandings: US$ US$
(iii) Tranche B [T] Outstanding US$/S$ US$/S$
(iv) Tranche B [G] Outstanding S$ S$
[Transferor] [Transferee]
By:__________________________________ By: ____________________________________
Date: Date:
Address: Address: