Exhibit 4.5
Confidential Treatment Requested:
The portions of this document marked by "xxxxx" have been omitted pursuant to a
request for confidential treatment and have been filed separately with the
Securities and Exchange Commission
EXECUTION COPY
December 23, 2004
CHARTERED SEMICONDUCTOR MANUFACTURING LTD,
as Borrower,
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Lender,
EXPORT-IMPORT BANK OF THE UNITED STATES
and
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Facility Agent,
EX-IM BANK FACILITY AGREEMENT
RELATING TO THE CHARTERED SEMICONDUCTOR FAB 7
PROJECT
EX-IM BANK GUARANTEE NO. AP080562XX
- SINGAPORE
2
TABLE OF CONTENTS
SECTION 1. DEFINITIONS AND INTERPRETATION....................................................................... 2
1.01 Defined Terms................................................................................... 2
1.02 Interpretation.................................................................................. 25
SECTION 2. THE GUARANTEED CREDITS................................................................................. 27
2.01 Amount.......................................................................................... 27
2.02 Availability.................................................................................... 27
SECTION 3. DISBURSEMENTS AND UTILIZATIONS....................................................................... 27
3.01 Disbursements................................................................................... 27
3.02 Disbursement Notices; Funding................................................................... 28
3.03 Issuance of Letters of Credit................................................................... 30
3.04 Reimbursements.................................................................................. 32
3.05 L/C Payments.................................................................................... 32
3.06 Facility Agent.................................................................................. 34
SECTION 4. EX-IM BANK FINANCING REQUIREMENTS.................................................................... 35
4.01 Eligibility for Ex-Im Bank Financing............................................................ 35
4.02 Coverage of Ex-Im Bank Guarantee................................................................ 36
4.03 Ancillary Services.............................................................................. 36
SECTION 5. TERMS OF THE GUARANTEED CREDITS...................................................................... 36
5.01 Principal Repayment............................................................................. 36
5.02 Interest Payment................................................................................ 36
5.03 Prepayment...................................................................................... 37
5.04 Evidence of Indebtedness........................................................................ 39
5.05 Use of Proceeds................................................................................. 40
5.06 Interest Rate Switch Option..................................................................... 40
SECTION 6. CONDITIONS PRECEDENT................................................................................. 41
6.01 Conditions Precedent to Initial Disbursement or Initial Utilization Under the Tranche A
Guaranteed Credit............................................................................... 41
6.02 Conditions Precedent to Initial Disbursement or Initial Utilization Under the Tranche B
Guaranteed Credit............................................................................... 46
6.03 Conditions Precedent to Each Disbursement or Utilization........................................ 46
6.04 Special Condition Precedent to Tranche A Guaranteed Credit Utilizations After December
31, 2005........................................................................................ 48
SECTION 7. FEES AND EXPENSES.................................................................................... 49
7.01 Ex-Im Bank Fees................................................................................. 49
7.02 Fees Under the Fee Letter; L/C Bank Fees........................................................ 49
SECTION 8. PAYMENTS............................................................................................. 49
8.01 Method of Payment............................................................................... 49
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TABLE OF CONTENTS
(continued)
Page
----
8.02 Application of Payments......................................................................... 50
SECTION 9. REPRESENTATIONS AND WARRANTIES....................................................................... 50
9.01 Representations and Warranties of the Borrower.................................................. 50
SECTION 10. AFFIRMATIVE COVENANTS............................................................................... 57
10.01 Affirmative Covenants of the Borrower........................................................... 57
SECTION 11. NEGATIVE COVENANTS.................................................................................. 66
11.01 Negative Covenants of the Borrower.............................................................. 66
SECTION 12. CANCELLATION, SUSPENSION AND EVENTS OF DEFAULT...................................................... 68
12.01 Cancellation by the Borrower.................................................................... 68
12.02 Suspension and Cancellation..................................................................... 70
12.03 Events of Default and Remedies.................................................................. 70
SECTION 13. NET PAYMENTS; COMPENSATION; BREAK FUNDING; PREPAYMENT PREMIUM....................................... 74
13.01 Net Payments; Etc............................................................................... 74
13.02 Increased Costs................................................................................. 75
13.03 Capital Requirements............................................................................ 76
13.04 Mitigation Obligations.......................................................................... 77
13.05 Break Funding Costs............................................................................. 77
13.06 Prepayment Premium.............................................................................. 78
SECTION 14. THE FACILITY AGENT.................................................................................. 78
14.01 Appointment, ▇▇▇▇▇▇ and Immunities.............................................................. 78
14.02 Reliance by Facility Agent...................................................................... 79
14.03 Duties of Facility Agent........................................................................ 80
14.04 No Duty to Inquire.............................................................................. 80
14.05 No Liability.................................................................................... 81
14.06 The Facility Agent in Its Individual Capacity................................................... 81
14.07 Resignation or Removal of Facility Agent........................................................ 82
14.08 Replacement Facility Agent...................................................................... 82
14.09 Credit Decisions................................................................................ 82
SECTION 15. GOVERNING LAW AND JURISDICTION...................................................................... 83
15.01 Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial.......................... 83
15.02 Waiver of Sovereign Immunity.................................................................... 84
15.03 Waiver of Security Requirements................................................................. 84
SECTION 16. MISCELLANEOUS....................................................................................... 85
16.01 Computations.................................................................................... 85
16.02 Payment of Expenses; Etc........................................................................ 85
16.03 Notices......................................................................................... 86
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TABLE OF CONTENTS
(continued)
Page
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16.04 Disposition of Indebtedness..................................................................... 87
16.05 Benefit of Agreement............................................................................ 88
16.06 Disclaimer...................................................................................... 88
16.07 No Waiver; Remedies Cumulative.................................................................. 88
16.08 Entire Agreement................................................................................ 88
16.09 Amendment or Waiver............................................................................. 88
16.10 Indemnification................................................................................. 89
16.11 Currency Indemnity.............................................................................. 90
16.12 Counterparts.................................................................................... 91
16.13 Termination of the Ex-Im Bank Guarantee Agreement............................................... 91
16.14 English Language................................................................................ 91
16.15 Severability.................................................................................... 91
16.16 Ex-Im Bank as Subrogee.......................................................................... 91
16.17 Right of Setoff................................................................................. 92
16.18 Certain Negative Covenants of Lender............................................................ 92
iii
Schedules
9.01(b) Capitalization of the Borrower
9.01(j) Proceedings
9.01(n)(iv) Withholding Taxes
9.01(r) Indebtedness
11.01(l) Hedging Policies
Exhibits
A Form of Notice of Borrowing
B Form of Disbursement Certificate
C Form of Borrower's Closing Certificate
D Form of Borrower's Financial Statement Certificate
E Form of Construction Progress Report
F Form of Annual Budget
Annexes
A-1 Form of Floating Rate Guaranteed Note
- Schedule 1 Principal Repayment Schedule
- Schedule 2 Disbursement Annotations
A-2 Form of Fixed Rate Guaranteed Note
- Schedule 1 Principal Repayment Schedule
- Schedule 2 Disbursement Annotations
B Utilization and Disbursement Procedures for Guaranteed Credits
- Exhibit 1 Form of Exporter's Certificate
- Exhibit 2 Request for Reimbursement to Borrower's Account
- Exhibit 2 (a)Itemized Statement of Payments
- Exhibit 3 Anti-Lobbying Certificate
- Exhibit 4 Certificate Authorizing Reimbursement
- Exhibit 5 Request for Letter of Credit Approval
- Exhibit 6 Certificate Approving Letter of Credit
- Exhibit 7 Request for Ex-Im Bank Approval of Amendment to Letter
of Credit
- Exhibit 8 Certificate Approving Amendment to Letter of Credit
- Exhibit 9 Request for Facility Agent Approval of Amendment to
Letter of Credit
- Exhibit 10 Notice of Letter of Credit Amendment
C-1 Operations Review Notice
C-2 Disbursement Review Notice
C-3 Utilization Conditions Review Notice
D Initial Acquisition List
E Lender Transfer Agreement
F-1 Documentary Approval
F-2 L/C Payment Approval Certificate
iv
Ex-Im Bank Guarantee No. AP080562XX-Singapore
Term Sheet
1. Borrower: Chartered Semiconductor Manufacturing Ltd
2. Borrower's Country: Republic of Singapore
3. Financed Portion: US$643,856,397
4. Exposure Fee (per US$100 of Financed Portion):
Tranche A: XXXXX
(X) financed ( ) not financed
(X) as disbursed ( ) up front
Tranche B: XXXXX
(X) financed ( ) not financed
(X) as disbursed ( ) up front
5. Guaranteed Credits: US$653,130,629
Tranche A Guaranteed Credit: US$324,384,000
Tranche B Guaranteed Credit: US$653,130,629 less the aggregate
amount of all Disbursements of the
Tranche A Guaranteed Credit
6. Interest Rate: Applicable Interest Rate, as defined
7. Guarantee Commitment Fee:
XXXXX per annum on the undisbursed and uncancelled amount of the
Guaranteed Credits, accruing from January 12, 2005, and payable on
each January 15 and July 15 of each year, beginning on July 15,
2005
8. Principal Repayment:
Tranche A: semi-annual installments, beginning not later than July
15, 2007, until the Tranche A Guaranteed Credit is
repaid in full
Tranche B: semi-annual installments, beginning not later than
January 15, 2009, until the Tranche B Guaranteed Credit
is repaid in full
1
9. Final Maturity Date:
Tranche A: not later than January 15, 2012
Tranche B: not later than July 15, 2013
10.End of Availability Period:
Tranche A: not later than June 15, 2007
Tranche B: not later than December 15, 2008
11.Except as otherwise provided in this Agreement, all notices shall be
directed to the respective parties in accordance with the following:
To the Borrower
Address: Chartered Semiconductor Manufacturing Ltd
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇
▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Chief Financial Officer
Fax: ▇▇▇-▇▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇▇-▇▇▇▇
To the Lender
Address: Government Agency Unit
JPMorgan Chase Bank, N.A.
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, 2020, 7355
cc: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
JPMorgan Chase Bank, N.A.
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, 3011
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To Ex-Im Bank
Address: Export-Import Bank of the United States
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Washington, DC 20571
Attention: Unless otherwise specified herein, - Asset Management
Division
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ (Asset Management Division)
(▇▇▇) ▇▇▇-▇▇▇▇ (Bank-wide)
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
To the Facility Agent
Address: Government Agency Unit
JPMorgan Chase Bank, N.A.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, 2020, 7355
cc: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
JPMorgan Chase Bank, N.A.
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, 3011
3
THIS EX-IM BANK FACILITY AGREEMENT dated as of December 23, 2004 (this
"Agreement"), is made by and among CHARTERED SEMICONDUCTOR MANUFACTURING LTD, a
public company limited by shares duly organized and existing under the laws of
the Republic of Singapore (the "Borrower"); JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, a national banking association duly organized and existing under
the laws of the United States of America, as Lender (the "Lender"); EXPORT-
IMPORT BANK OF THE UNITED STATES, an independent agency of the government of
the United States of America ("Ex-Im Bank"); and JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, a national banking association duly organized and existing under
the laws of the United States of America, as Facility Agent (the "Facility
Agent").
RECITALS
WHEREAS, the Borrower has undertaken to design, construct, finance,
furnish, install, and own a fabrication plant, located at ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇, ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ (the "Fab 7 Plant"),
to produce 300 millimeter silicon wafers using 0.13 micron and 90 nanometer
process technology (collectively, the "Project");
WHEREAS, to secure a portion of the financing for the Project, the
Borrower has requested that the Lender establish (a) an export financing credit
guaranteed by Ex-Im Bank in an amount up to US$324,384,000 (the "Tranche A
Guaranteed Credit"); and (b) an export financing credit guaranteed by Ex-Im
Bank in an amount up to an aggregate principal amount of (i) US$653,130,629
less (ii) the aggregate principal amount of all Disbursements made under the
Tranche A Guaranteed Credit (the "Tranche B Guaranteed Credit"), pursuant to
which the Lender may extend financing to the Borrower (i) for the purchase of
Goods and Services, and (ii) for the payment to Ex-Im Bank of the related
Exposure Fee;
WHEREAS, a condition to the Lender's extension of the Guaranteed Credits
under this Agreement is the availability of the Ex-Im Bank Guarantee pursuant
to the terms and conditions of that certain Guarantee Agreement dated as of the
date hereof between the Lender and Ex-Im Bank (the "Ex-Im Bank Guarantee
Agreement");
WHEREAS, the establishment of the Guaranteed Credits will facilitate
exports from the United States to the Borrower's Country;
WHEREAS, the Facility Agent will serve as facility agent for the benefit,
and on behalf, of Ex-Im Bank in connection with certain matters expressly set
forth herein; and
WHEREAS, the Guaranteed Credits may be utilized by the Borrower in
accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
SECTION 1. DEFINITIONS AND INTERPRETATION
1.01 Defined Terms. Capitalized terms used herein, including in the
preamble and recitals above, shall have the meanings ascribed thereto below.
"Acceptable Financial Institution" shall mean either (a) an office
located in the United States of a bank or trust company that is organized or
licensed under the laws of the United States or any state thereof with (i) a
combined capital and surplus of at least US$1,000,000,000, and (ii) both a
short-term and long-term deposit rating of at least "A" by ▇▇▇▇▇'▇ Investors
Service and at least "A" by Standard & Poor's Ratings Services; or (b) another
financial institution acceptable to Ex-Im Bank.
"Account Pledge Agreement" shall mean the Deed of Charge executed by the
Borrower in favor of the Security Trustee on behalf the secured party or
parties provided for thereunder, and dated a date to be mutually agreed.
"Acquisition List" shall mean a list of the goods and services approved
for financing under the Guaranteed Credits in the form of Annex D submitted
pursuant to Section 6.01(o), as amended, modified or supplemented from time to
time (with the prior written consent of Ex-Im Bank).
"Adjusted Debt Service Reserve Requirement" shall have the meaning
ascribed thereto in Section 10.01(m).
"Affiliate" shall mean, with respect to a specified Person, any other
Person that directly or indirectly Controls, or is under common Control with,
or is any member of the immediate family of such Person and any trust whose
principal beneficiary is such Person or one or more members of such immediate
family and any Person who is Controlled by any such member or trust.
Notwithstanding the foregoing, (a) no individual shall be deemed to be an
Affiliate of a Person solely by reason of his or her being a director,
committee member, officer or employee of such Person; and (b) each shareholder
of the Borrower holding in excess of ten percent (10%) of the share capital of
the Borrower and each of its respective Affiliates shall be deemed to be an
Affiliate of the Borrower.
"Agreement" shall have the meaning ascribed thereto in the preamble.
"Ancillary Services" shall mean (a) financial advisory services of a
financial intermediary, financial institution or advisor; provided that such
Person has been retained by the Borrower, the Lender or Ex-Im Bank, and such
services relate to assisting the Borrower in obtaining, structuring and/or
meeting the financial requirements of the Guaranteed Credits or assisting Ex-Im
Bank in its analysis of the Guaranteed Credits, any underlying project and/or
the business of the Borrower; (b) technical consultant services of an advisor
or consultant with respect to technical matters (including engineering
consultants, yield consultants and insurance advisors) where (i) Ex-Im Bank has
required that such a consultant be retained in order to assist Ex-Im Bank in
its analysis of the Guaranteed Credits and/or the business operations of the
Borrower, (ii) the services of such consultant relate to the Guaranteed
Credits, and (iii) the experience, expertise and overall competence of such
consultant are satisfactory to Ex-Im Bank
2
(in its sole and absolute discretion); and/or (c) legal services of attorneys
engaged by the Borrower, the Lender, the Facility Agent and Ex-Im Bank where
such services are provided in connection with the Guaranteed Credits.
"Ancillary Services Provider" shall mean any Person who provides
Ancillary Services.
"Annual Budget" shall mean an annual operating budget substantially in
the form of Exhibit F, as prepared by the Borrower in accordance with Section
6.01(h) and submitted in accordance with Section 10.01(s).
"Anti-Lobbying Certificate" shall mean a certificate of an Exporter or
Ancillary Services Provider in the form of Exhibit 3 to Annex B.
"Anti-Terrorism Law" shall mean each of:
(a) the Executive Order;
(b) the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-
56 (commonly known as the USA Patriot Act);
(c) the Money Laundering Control Act of 1986, Public Law 99-570; and
(d) any similar law enacted in the United States of America subsequent
to the date of this Agreement.
"Applicable Currency Exchange Rate" shall mean, as of any date of
determination, with regard to the conversion of Dollars to Singapore Dollars or
Singapore Dollars to Dollars, as the context may require, the average of the
"high" and "low" rates of exchange published by the Federal Reserve Bank of New
York and quoted as the "noontime buying rate" on such date or, if such rate is
unavailable, the interbank rate of exchange available as of the date hereof at
▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇▇.
"Applicable Interest Rate" shall mean, for any Interest Period, (a) with
respect to any portion of a Guaranteed Credit evidenced by a Floating Rate Note
or any other unpaid amount, or to the extent that a portion of a Guaranteed
Credit evidenced by a Floating Rate Note that is held by the Lender is assigned
to any assignee, then, from and after the applicable Disbursement Date or the
effective date of such assignment, as the case may be, the Floating Rate; and
(b) with respect to any portion of a Guaranteed Credit evidenced by a Fixed
Rate Note, then, from and after the date of issuance of such Fixed Rate Note,
the Fixed Rate.
"Applicable Law" shall mean any constitution, statute, law, rule,
regulation, ordinance, judgment, order, decree, Government Approval, or any
published directive, guideline, requirement or other governmental restriction
that has the force of law or any determination by, or interpretation of, any of
the foregoing by any judicial authority, binding on a given Person whether in
effect as of the date hereof or as of any date thereafter, including all
applicable Environmental Laws.
3
"Asset Management Division" shall mean the Asset Management Division of
Ex-Im Bank or any other division of Ex-Im Bank designated by Ex-Im Bank to
perform the relevant functions of such division.
"Authorized Officer" shall mean the Chairman of the Board of Directors,
the Chief Executive Officer, the Chief Financial Officer or the Financial
Controller of the Borrower. Notwithstanding anything in the preceding sentence
to the contrary, for purposes of certificates delivered pursuant to Section
6.01(c)(iv), "Authorized Officer" shall include the secretary or the assistant
secretary of the Borrower.
"Availability Period" shall mean (a) with respect to the Tranche A
Guaranteed Credit, the period commencing on the date of this Agreement, and
ending on the earliest of (i) the date the Tranche A Commitment is disbursed in
full, (ii) the Phase I Partial Completion Date, and (iii) June 15, 2007; and
(b) with respect to the Tranche B Guaranteed Credit, the period commencing on
the Phase I Partial Completion Date and ending on the earliest of (i) the date
the Tranche B Commitment is disbursed in full, (ii) five (5) months after the
Phase I Completion Date, and (iii) December 15, 2008.
"Beneficiary" shall mean the Exporter (or U.S.-based Ancillary Services
Provider) as the beneficiary of a Letter of Credit.
"Borrower" shall have the meaning ascribed thereto in the preamble.
"Borrower Projections" shall have the meaning ascribed thereto in
Section 6.01(i).
"Borrower's Country" shall mean the Republic of Singapore.
"Business Day" shall mean (a) a day that is not a day on which commercial
banks in Singapore or New York, New York are authorized or required to remain
closed; (b) a day on which dealings in Dollar deposits are carried out in the
London interbank market; and (c) where such term is used in relation to any
payment or delivery to or communication with Ex-Im Bank, a day on which Ex-Im
Bank is open for business.
"Capital Adequacy Requirement" shall mean a request from or requirement
of any central bank or other fiscal, monetary or other Governmental Authority
of general application (including, without limitation, a request or requirement
which affects the manner in which the Lender or holding company thereof
allocates capital resources to its obligations under any of the Financing
Documents) and whether or not any such request or requirement has the force of
law (but, if not having the force of law, compliance with which is customary in
the relevant jurisdiction).
"Capital Expenditures" shall mean any payments that are made in
connection with the rental, lease, purchase, construction or use of any
property the value or cost of which, under GAAP, should be capitalized and
categorized on the Borrower's balance sheet as "property", "plant" and
"equipment."
"Capital Stock" of any Person shall mean any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of
or interest in (however designated) the
4
common or preferred equity or equity or preference share capital of such Person,
including, without limitation, partnership interests, and any securities
convertible into or exchangeable for any thereof.
"Casualty Event" shall mean an event (other than a Total Event of Loss)
that causes any portion of the Fab 7 Plant or any other Property of the
Borrower intended to be incorporated therein to be damaged, destroyed or
rendered unfit for normal use for any reason whatsoever.
"Casualty Proceeds" shall mean all proceeds resulting from a Casualty
Event.
"Certificate Approving Amendment to Letter of Credit" shall mean a
certificate of Ex-Im Bank substantially in the form of Exhibit 8 to Annex B.
"Certificate Approving Letter of Credit" shall mean a certificate of Ex-
Im Bank substantially in the form of Exhibit 6 to Annex B.
"Certificate Authorizing Reimbursement" shall mean a certificate of Ex-Im
Bank substantially in the form of Exhibit 4 to Annex B.
"Change of Law" shall mean the adoption of any Applicable Law, any change
in any Applicable Law or the application or requirements thereof, any change in
the interpretation or administration of any Applicable Law by any Governmental
Authority, or compliance by Ex-Im Bank, the Lender or the Borrower with any
request or directive (whether or not having the force of law) of any
Governmental Authority.
"Code" shall mean the United States Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder having the force of law.
"Commission" shall mean the United States Securities and Exchange
Commission.
"Commitments" shall mean, collectively, the Tranche A Commitment and the
Tranche B Commitment.
"Construction Progress Report" shall mean a report from the Borrower
substantially in the form of Exhibit E, which shall compare actual construction
to the Ramp and Capital Costs Budget and Ramp Schedule, together with a
narrative description in reasonable detail of the status of the Project and an
estimate of the remaining Project Costs projected to be incurred between the
date of such Construction Progress Report and the Phase I Completion Date, as
prepared by the Borrower and submitted from time to time in accordance with
Section 10.01(r).
"Control" shall mean (a) the possession, directly or indirectly, of (i)
more than fifty percent (50%) of the securities having ordinary voting power
for the election of directors or other governing body of a corporation, or (ii)
more than fifty percent (50%) of the partnership or other ownership interests
of any other Person; or (b) the ability, directly or indirectly, to influence
any decision of, or to direct or cause the direction of the management and
policies (including operations and maintenance decisions) of, a Person. The
terms "Controlled by," "under common Control with," and the term "Control" when
used as a verb, shall have correlative meanings.
5
"Convertible Bond" shall mean US$575,000,000 of unsecured convertible
notes issued by the Borrower on April 2, 2001, bearing interest at a rate per
annum of two and one-half percent (2.5%) and due April 2, 2006.
"Corporate Cash Balance" shall mean the cash or cash equivalent held by
the Borrower from time to time, as certified at any time of determination by an
Authorized Officer of the Borrower.
"Corrupt Practices Laws" shall mean, collectively, (a) the Foreign Corrupt
Practices Act of 1977, 15 U.S.C. Sections 78dd-1 - 78dd-3 (2000), as amended,
and (b) any other applicable law, regulation, order, decree or directive having
the force of law and relating to bribery, kick-backs or similar business
practices.
"Covered Taxes" shall have the meaning ascribed thereto in Section
13.01(a).
"Credit Facilities" shall mean, collectively, the Tranche A Credit
Facility and the Tranche B Credit Facility.
"Date Certain" shall mean (a) January 15, 2007, in respect of Phase I
Partial Completion, and (b) July 15, 2008, in respect of Phase I Completion.
"Debarment Regulations" shall mean (a) the Government-wide Debarment and
Suspension (Non procurement) regulations (Common Rule), 53 Fed. Reg. 19204 (May
26, 1988); (b) Subpart 9.4 (Debarment, Suspension, and Ineligibility) of the
Federal Acquisition Regulations, 48 C.F.R. 9.400 - 9.409; and (c) the revised
Government-wide Debarment and Suspension (Non procurement) regulations (Common
Rule), 60 Fed. Reg.33037 (June 26, 1995).
"Debt Service" shall mean, without duplication, for any period, the
aggregate of all principal, interest, fees, expenses, prepayment premiums and
all other amounts paid or payable by the Borrower under this Agreement and
under each other agreement of the Borrower pursuant to which the Borrower has
incurred Indebtedness or (without duplication) evidencing any Indebtedness of
the Borrower.
"Debt Service Reserve Account" shall mean a Dollar denominated account of
the Borrower established with the Security Trustee for the benefit of Ex-Im
Bank in accordance with the terms of the Account Pledge Agreement.
"Debt Service Reserve Letter of Credit" shall mean one or more
unconditional irrevocable standby letters of credit issued to and for the
benefit of Ex-Im Bank or its designee (if appropriate), payable in New York in
Dollars, in form and substance satisfactory to Ex-Im Bank. Such letter of
credit must be issued by an Acceptable Financial Institution and must by its
terms have an initial expiration date at least one (1) year beyond its date of
issuance and provide that (a) such letter of credit will be automatically
renewed for a period of at least one (1) year beyond its then current
expiration date unless the issuer thereof provides written notice (an "L/C
Termination Notice") to the Borrower and Ex-Im Bank at least forty-five (45)
days prior to its then current expiration date that such letter of credit will
not be renewed on such current expiration date, and (b) if the issuer shall
have delivered such an L/C Termination Notice, Ex-Im Bank shall be entitled to
draw the full amount available to be drawn under such letter of credit at
6
any time (i) after its receipt of such L/C Termination Notice, and (ii) not
earlier than fifteen (15) days prior to the expiration of such letter of credit
if a substitute Debt Service Reserve Letter of Credit has not been issued as of
such time.
"Debt Service Reserve Requirement" shall mean (a) the Tranche A Debt
Service Reserve Requirement, or (b) the Tranche B Debt Service Reserve
Requirement, as the context may require, together with any other amounts as may
be agreed among the parties hereto from time to time.
"Debt to Equity Ratio" shall mean, on any date of computation, the
quotient of (a) the aggregate principal amount as of the date of computation of
the Indebtedness of the Borrower then outstanding over (b) the Net Worth of the
Borrower.
"Default" shall mean any event that, with the giving of notice, lapse of
time, fulfillment of any condition or any combination thereof, would become an
Event of Default.
"Default Rate" shall mean the interest rate set forth in Section
5.02(a)(ii).
"Disbursement" shall mean (a) a Reimbursement in accordance with the
reimbursement procedure set forth in Section 3.04 and Part II of Annex B, or
(b) an L/C Payment or contemporaneous L/C Payments made on the same date in
accordance with the letter of credit procedure set forth in Section 3.05 and
Part III of Annex B, together with any Exposure Fee payment made in connection
therewith, in each such case made in accordance with the terms and conditions
of this Agreement.
"Disbursement Date" shall mean, in relation to any Disbursement, the
Business Day on which such Disbursement is made.
"Disbursement Percentage" shall mean the Disbursement Percentage (if any)
stated in Part A of the relevant Exporter's Certificate.
"Disbursement Review Notice" shall mean a notice substantially in the
form of Annex C-2.
"Disposition of Indebtedness" shall have the meaning ascribed thereto in
Section 16.04(a).
"Documentary Approval" shall mean an approval substantially in the form
of Annex F-1.
"Dollar," "Dollars," "US$" and "$" shall mean the lawful currency of the
United States.
"Drawstop Notice" shall have the meaning ascribed thereto in Section
3.02(h).
"DSRA Surplus" shall have the meaning ascribed thereto in Section
10.01(u)(iii).
"DUNS Numbers" shall mean Dun & Bradstreet numbers.
7
"EBITDA" shall mean, for any period, the sum of (a) net income from
operations determined in accordance with GAAP for such period, plus (b) net
interest payments made during such period, plus (c) taxes paid during such
period, plus (d) depreciation of capital assets and amortization of intangible
assets and leasehold improvements for such period, plus (e) any non-cash
expenses for such period.
"Environmental Claim" shall mean, with respect to any Person, any notice,
claim, administrative, regulatory or judicial action, suit, judgment, demand or
other communication (whether written or oral) by any other Person alleging or
asserting such Person's liability for investigatory costs, cleanup costs,
governmental response costs, damages to natural resources or other property of
such Person, personal injuries, fines or penalties arising out of, based on or
resulting from (a) the presence, use, or release into the environment of any
Hazardous Material at any location, whether or not owned by such Person, or (b)
any fact, circumstance, condition or occurrence forming the basis of any
violation, or alleged violation, of any Environmental Law or Environmental
Requirement. The term "Environmental Claim" shall include, without limitation
(i) any and all claims by Governmental Authorities for enforcement, cleanup,
removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law or Environmental Requirement, and (ii) any and all
claims by any third party seeking damages, contribution, indemnification, cost
recovery, compensation or injunctive relief resulting from Hazardous Materials
or arising from alleged injury or threat of injury to health, safety or the
environment.
"Environmental Law" shall mean any statute, law, rule, regulation,
ordinance, code, international convention or policy having the force of law, in
each case applicable to the Borrower or any other aspect of the Project now or
hereafter in effect and in each case as amended, and any applicable judicial or
administrative interpretation thereof that has the force of law, including any
judicial or administrative order, decree or judgment applicable to the Borrower
or the Project relating to any Environmental Matter.
"Environmental Matter" shall mean any of the following to the extent
related or applicable to the Project or the Borrower:
(a) release, emission, entry or introduction of any Hazardous Materials
into the air, including, without limitation, the ambient air;
(b) discharge, release or entry of any Hazardous Materials into water
including, without limitation, into any river, watercourse, lake, pond (whether
natural or artificial or above ground or that joins or flows into any such water
outlet above ground) or reservoir, or the surface of the riverbed or of other
land supporting such waters, ground waters, sewer or the sea;
(c) deposit, disposal, keeping, treatment, importation, exportation,
production, transportation, handling, processing, carrying, manufacture,
collection, sorting or presence of any Hazardous Materials;
(d) nuisance, noise, defective premises, workplace health and safety,
industrial illness, industrial injury due to environmental factors, and
environmental health problem
8
(including, without limitation, asbestosis or any other illness or injury caused
by exposure to asbestos) that is regulated by Applicable Law or Environmental
Requirements;
(e) conservation, preservation or protection of the natural resources
environment as regulated by Applicable Law or Environmental Requirements; or
(f) other matter whatsoever directly affecting the environment as
regulated by Applicable Law or Environmental Requirements.
"Environmental Requirements" shall mean the Ex-Im Bank Environmental
Guidelines and the World Bank Environmental Guidelines.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended, and the regulations promulgated, and any publicly available rulings
issued, thereunder.
"ERISA Affiliate" shall mean any Person that is a member of any group of
organizations (a) described in Section 414(b) or (c) of the Code of which the
Borrower is a member, and (b) solely for purposes of potential liability under
Section 302(c)(11) of ERISA and Section 412(c)(11) of the Code and the lien
created under Section 302(f) of ERISA and Section 412(n) of the Code, treated
as a single employer under Section 414(m) or (o) of the Code of which the
Borrower is a member.
"ERISA Plan" shall mean any "Employee Benefit Plan" (as defined in
Section 3(3) of ERISA) or any "multiemployer plan" (as defined in Section
4001(a)(3) of ERISA) in each case that is subject to ERISA, that is or, within
the preceding five (5) years has been, established or maintained, or to which
contributions are or, within the preceding five (5) years have been, made or
required to be made, by the Borrower or any ERISA Affiliates or with respect to
which the Borrower or any ERISA Affiliate may have any liability.
"Event of Default" shall have the meaning ascribed thereto in Section
12.03.
"Executive Order" shall mean Executive Order No. 13224 of September 23,
2001 - Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten To Commit, or Support Terrorism.
"Ex-Im Bank" shall have the meaning ascribed thereto in the preamble.
"Ex-Im Bank Environmental Guidelines" shall mean the Export-Import Bank
of the United States Environmental Procedures and Guidelines dated April 2,
1998, and extended on December 27, 2001.
"Ex-Im Bank Guarantee" shall have the meaning ascribed thereto in the Ex-
Im Bank Guarantee Agreement.
"Ex-Im Bank Guarantee Agreement" shall have the meaning ascribed thereto
in the recitals.
9
"Exporter" shall mean each Person identified as such in the Acquisition
List and as otherwise approved by Ex-Im Bank.
"Exporter's Certificate" shall mean a certificate in the form of Exhibit
1 to Annex B.
"Exposure Fee" shall have the meaning ascribed thereto in Section
7.01(b).
"Fab 7 Customer Deposit" shall mean a customer deposit to be made by a
customer of the Borrower in Fiscal Year(s) 2005 and 2006 in respect of
production from the Fab 7 Plant to the Borrower on terms and conditions
satisfactory to Ex-Im Bank.
"Fab 7 Plant" shall have the meaning ascribed thereto in the recitals.
"Facility Agent" shall have the meaning ascribed thereto in the preamble.
"Fee Letter" shall mean the Fee Letter dated as of the date hereof,
between the Borrower and JPMorgan Chase Bank, National Association.
"Final Maturity Date" shall mean (a) with respect to the Tranche A
Guaranteed Credit, the date falling five (5) years after the Repayment
Commencement Date for the Tranche A Guaranteed Credit; and (b) with respect to
the Tranche B Guaranteed Credit, the date falling five (5) years after the
Repayment Commencement Date for the Tranche B Guaranteed Credit.
"Financed Portion" shall mean the portion of the Net Contract Price of
the Goods and Services that may be financed under the Guaranteed Credits in
accordance with Section 4.02, not to exceed the aggregate amount set forth in
Section 3.01(b).
"Financing" shall mean the extension of the Credit Facilities on the
terms and conditions and as described herein.
"Financing Documents" shall mean (a) this Agreement, (b) the Ex-Im Bank
Guarantee Agreement, (c) the Guaranteed Notes, (d) the Account Pledge
Agreement, (e) the Fee Letter, (f) if applicable, the Debt Service Reserve
Letter of Credit, and (g) any notice or certificate delivered by the Borrower
in connection with any of the foregoing.
"Financing Parties" shall mean Ex-Im Bank, the Lender and the Facility
Agent.
"Fiscal Year" shall mean the accounting year of the Borrower commencing
each year on January 1 and ending on December 31, or such other period agreed
between the Borrower and Ex-Im Bank in writing.
"Fixed Rate" shall mean the applicable rate per annum determined under
Section 5.06.
"Fixed Rate Note" shall mean a promissory note substantially in the form
of Annex A-2.
"Floating Rate" shall mean a rate per annum equal to LIBOR plus XXXXX.
"Floating Rate Note" shall mean a promissory note substantially in the
form of Annex A-1.
10
"Foreign Benefit Plan" shall mean any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States by the Borrower or a Subsidiary thereof,
with respect to which the Borrower or such Subsidiary has an obligation to
contribute, for the benefit of employees of the Borrower or the Subsidiary,
which plan, fund or other similar program provides, or results in, the type of
benefits described in Section 3(1) or 3(2) of ERISA, and which plan is not
subject to ERISA or the Code.
"Foreign Content" shall mean, with respect to any Supply Contract, the
amount representing the foreign content in such contract as specified in Part A
of the relevant Exporter's Certificate; provided that Ex-Im Bank shall
determine what does and does not constitute Foreign Content and such
determination, in the absence of manifest error, shall be conclusive and
binding for all purposes.
"GAAP" shall mean generally accepted accounting principles in the United
States, as in effect from time to time, consistently applied.
"Goods" shall mean goods (a) purchased in the United States under a
Supply Contract and exported from the United States to the Borrower's Country,
and (b) listed on the Acquisition List; provided that Ex-Im Bank shall
determine what does and does not constitute Goods and such determination, in
the absence of manifest error, shall be conclusive and binding for all
purposes.
"Government Approval" shall mean any consent, license, approval,
registration, permit, sanction, filing or registration with, or other
authorization or other action of any nature that is required to be granted or
taken by or with any Governmental Authority.
"Governmental Authority" shall mean any national, state, county, city,
town, village, municipal or other local governmental department, commission,
board, bureau, agency, authority or instrumentality of the United States or
Singapore, as applicable, or any political subdivision thereof, and any person
or entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to any of the foregoing entities,
including, without limitation, all commissions, boards, bureaus, arbitrators
and arbitration panels, and any authority or other person or entity controlled
by any of the foregoing.
"Guarantee" by any Person shall mean any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing in any manner any
Indebtedness or other obligation of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect, contingent or
otherwise, of such Person (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or other obligation (whether
arising by virtue of partnership arrangements, by agreement to keep well, to
purchase assets, goods, securities or services, to take or pay, or to maintain
financial statement conditions or otherwise), or (b) entered into for the
purpose of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part); provided, however, that the term
"Guarantee" shall not include (i) endorsements for collection or deposit in the
ordinary course of business, or (ii) indemnity or hold harmless provisions
included in contracts entered into in the ordinary course
11
of business. "Guarantee" and "Guaranteed" when used as a verb shall have a
correlative meaning.
"Guarantee Certificate" shall mean a Certificate Authorizing
Reimbursement, a Certificate Approving Letter of Credit or a Certificate
Approving Amendment to Letter of Credit, whichever is appropriate.
"Guarantee Commitment Fee" shall have the meaning ascribed thereto in
Section 7.01(a).
"Guarantee Legend" shall have the meaning ascribed thereto in Section
3.02 of the Ex-Im Bank Guarantee Agreement.
"Guaranteed Amount" shall have the meaning ascribed thereto in Section
2.04 of the Ex-Im Bank Guarantee Agreement.
"Guaranteed Credits" shall mean, collectively, the Tranche A Guaranteed
Credit and the Tranche B Guaranteed Credit.
"Guaranteed Note" shall mean the Floating Rate Note or the Fixed Rate
Note, as the context may require, or any replacement promissory note issued
pursuant to Section 5.04(b) or 5.04(c).
"Hazardous Materials" shall mean (a) any chemicals, materials or
substances defined as or included in the definition of "hazardous substances,"
"hazardous wastes," "hazardous materials," "extremely hazardous wastes,"
"restricted hazardous wastes," "toxic substances," "toxic pollutants,"
"contaminants" or "pollutants," or words of similar import, under any
applicable Environmental Law or Environmental Requirement; and (b) any other
chemical, material or substance, in each case to the extent exposure to the
same is prohibited, limited or regulated by any Environmental Law or
Environmental Requirement by reason of its hazardous nature.
"Hedging Policies" shall mean the hedging policies of the Borrower set
forth in Schedule 11.01(l).
"Historical Debt Service Coverage Ratio" shall mean, for any period
comprising two (2) consecutive fiscal quarters of the Borrower, the quotient of
(a) EBITDA for such period over (b) the sum of (i) Debt Service scheduled to be
paid during the next two (2) consecutive fiscal quarters (calculated at the
interest rate in effect on the date of determination with respect to any
portion of the Guaranteed Credit then bearing interest at a floating rate)
minus (ii) (A) prior to the date on which fifty percent (50%) of the Guaranteed
Credits have been repaid, any lump sum principal payment or prepayment to be
made during the next two (2) consecutive fiscal quarters that retires in full
the outstanding principal obligations under (x) the Convertible Bond, (y) any
refinancing of the Convertible Bond due in a single installment at maturity, or
(z) up to US$300,000,000 of other Indebtedness of the Borrower due in a single
installment at maturity; and (B) thereafter, any lump sum principal payment due
and payable during such period in a single installment at maturity in respect
of any Indebtedness of the Borrower.
12
"IEEPA" shall mean the International Emergency Economic Powers Act of
1977, 50 U.S.C. Sections 1701 - 1707 (2000), as amended.
"Indebtedness" shall mean, as to any Person, (a) all indebtedness
(including principal, interest, fees and charges) for borrowed money; (b) all
obligations issued, undertaken or assumed as the deferred purchase price of
Property or services; (c) all outstanding reimbursement obligations with
respect to surety bonds, performance bonds, letters of credit, bankers'
acceptances and similar instruments; (d) without duplication of clause (c)
above, the currently available amount of all surety bonds, performance bonds,
letters of credit or other similar instruments issued for the account of such
Person; (e) all obligations evidenced by notes, bonds, debentures, commercial
paper, bills of exchange or similar instruments, including obligations so
evidenced incurred in connection with the acquisition of Property, assets or
businesses; (f) all indebtedness created or arising under any conditional sale
or other title retention agreement, or incurred as financing, in either case
with respect to Property acquired by such Person (even though the rights and
remedies of the seller or bank under such agreement in the event of default are
limited to repossession or sale of such Property); (g) all capital lease
obligations; (h) obligations pursuant to any agreement to purchase materials,
supplies or other Property if such agreement provides that payment shall be
made regardless of whether delivery of such materials, supplies or other
Property is ever made or tendered; (i) obligations in respect of any commodity,
interest rate or currency swap, cap or collar agreement or similar arrangement
between such Person and a financial institution providing for the transfer or
mitigation of commodity pricing, currency or interest risks either generally or
under specific contingencies (but without regard to any notional principal
amount relating thereto); (j) all liabilities secured by (or for which the
holder of such indebtedness has an existing right, contingent, or otherwise, to
be secured by) any Lien upon or in Property (including accounts and contract
rights) owned by such Person, even though such Person has not assumed or become
liable for the payment of such indebtedness; and (k) all Guarantees of
obligations in respect of indebtedness or obligations of others of the kinds
referred to in clauses (a) through (j) of this definition.
"Indemnifiable Costs" shall have the meaning ascribed thereto in Section
16.10(a).
"Indemnified Party" shall have the meaning ascribed thereto in Section
16.10(a).
"Independent Accountant" shall mean KPMG Singapore, any of the other "Big
Four" accounting firms or any replacement therefor of internationally
recognized standing appointed by the Borrower with the consent of Ex-Im Bank.
"Independent Engineer" shall mean an engineer retained by Ex-Im Bank and
(in the absence of a Default or an Event of Default ) reasonably acceptable to
the Borrower.
"Initial Disbursement Date" shall mean the date of the initial
Disbursement under the Tranche A Guaranteed Credit.
"Initial Eligibility Date" shall mean May 13, 2003.
"Insolvency Proceeding" shall mean (a) any case, action or proceeding
before any court or other Governmental Authority under any Applicable Laws
relating to bankruptcy, reorganization, insolvency, liquidation, receivership,
dissolution, winding-up, relief of debtors,
13
moratorium or composition or adjustment of debts or suspension of payments or
the like; or (b) any general assignment for the benefit of creditors,
composition, marshaling of assets for creditors or other similar arrangement in
respect of a Person's creditors generally or any substantial portion of a
Person's creditors.
"Interest Payment Date" shall mean (a) with respect to Disbursements
under the Tranche A Guaranteed Credit, (i) prior to the Repayment Commencement
Date for the Tranche A Guaranteed Credit, each January 15 and July 15 of each
year, and (ii) on and after the Repayment Commencement Date for the Tranche A
Guaranteed Credit, each Repayment Date for the Tranche A Guaranteed Credit; and
(b) with respect to Disbursements under the Tranche B Guaranteed Credit, (i)
prior to the Repayment Commencement Date for the Tranche B Guaranteed Credit,
each January 15 and July 15 of each year, and (ii) on and after the Repayment
Commencement Date for the Tranche B Guaranteed Credit, each Repayment Date for
the Tranche B Guaranteed Credit.
"Interest Period" shall mean, for each Disbursement of the Guaranteed
Credits, (a) while a Disbursement bears interest at the Floating Rate, the
period commencing on and including the relevant Disbursement Date and ending on
but excluding the first Interest Payment Date, and thereafter, each successive
period commencing on and including the last day of the next preceding Interest
Period and ending on but excluding the next succeeding Interest Payment Date;
and (b) while a Disbursement bears interest at the Fixed Rate, the period
commencing on and including the relevant Disbursement Date or relevant Switch
Date, as the case may be, and ending on but excluding the next succeeding
Interest Payment Date, and thereafter, each successive period commencing on and
including the last day of the next preceding Interest Period and ending on but
excluding the next succeeding Interest Payment Date; provided that if any
Interest Period ends on a day that is not a Business Day, the last day of such
Interest Period shall be (i) if a Disbursement bears interest at the Fixed
Rate, the immediately succeeding Business Day and (ii) if a Disbursement bears
interest at the Floating Rate the immediately succeeding Business Day, unless
such succeeding Business Day shall fall in the next calendar month in which
case the Interest Period shall end on the immediately preceding Business Day;
provided, further, that in the event of any payment of a claim for a principal
amount of a Guaranteed Credit under the Ex-Im Bank Guarantee occurring on any
date other than an Interest Payment Date, the then current Interest Period for
the amount of such claim shall end, and a new Interest Period for such amount
shall commence, on the date Ex-Im Bank pays such claim; provided, further, that
in the event the Phase I Partial Completion Date does not occur prior to
October 15, 2006, with respect to any Interest Period that would otherwise end
on a date that is after April 15, 2007, such Interest Period shall commence on
and include the last day of the next preceding Interest Period and end on but
exclude April 15, 2007; and, provided, finally, that anything in this Agreement
to the contrary notwithstanding, an Interest Period that would otherwise extend
beyond an Interest Payment Date shall end on such Interest Payment Date and the
final Interest Period for such Disbursement shall end on the relevant Final
Maturity Date.
"Investment" shall mean, for any Person, (a) the acquisition (whether for
cash, property, services or securities or otherwise) or holding of Capital
Stock, bonds, notes, debentures or other securities of or in any other Person,
(b) the making of any deposit with, or advance, loan or other extension of
credit to, any other Person or any Guarantee of, or other contingent obligation
with respect to, any Indebtedness or other liability of any other Person and
(without duplication) any
14
amount committed to be advanced, lent or extended to any other Person, and (c)
the acquisition of any similar property, right or interest of or in any other
Person.
"Investment Company Act" shall mean the Investment Company Act of 1940, 15
U.S.C. Sections 80a-1-80a-64 (2000), as amended.
"L/C Bank" shall have the meaning ascribed thereto in Part III of Annex
B.
"L/C Payments" shall have the meaning ascribed thereto in Section
3.01(a).
"L/C Payment Approval Certificate" shall mean a certificate substantially
in the form of Annex F-2.
"Lender" shall have the meaning ascribed thereto in the preamble.
"Lender Transfer Agreement" shall mean an agreement executed by the
parties thereto substantially in the form of Annex E.
"Lending Office" shall mean, with respect to the Lender, the office
designated beneath its name on the signature pages hereto or such other office
of the Lender that satisfies any relevant requirements of the Ex-Im Bank
Guarantee Agreement as the Lender may specify from time to time to the Facility
Agent, Ex-Im Bank and the Borrower.
"Letter of Credit" shall have the meaning ascribed thereto in Section
3.03(a).
"LIBOR" shall mean, with respect to any Interest Period or any relevant
period, the rate appearing on Page 3750 of the Dow ▇▇▇▇▇ Market Service (or on
any successor or substitute page of such service, or any successor to or
substitute for such service, providing rate quotations comparable to those
currently provided on such page of such service, as determined by the Lender
from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at approximately
11:00 a.m., London time, two (2) Business Days prior to the commencement of
such Interest Period, as the rate for dollar deposits with a maturity
comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBOR" with respect to such
Interest Period shall be the rate at which dollar deposits of US$5,000,000 and
for a maturity comparable to such Interest Period are offered by the principal
London office of the Lender in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two (2) Business
Days prior to the commencement of such Interest Period.
"Lien" shall mean any security interest, mortgage, pledge, assignment by
way of security, charge, lease, easement, servitude, deposit arrangement,
encumbrance, lien (statutory or other), preference, priority or other security
agreement of any kind or nature whatsoever including, without limitation, (a)
any conditional sale or other title retention agreement, any financing or
similar statement or notice filed under any recording or notice statute, and
any lease having substantially the same effect as any of the foregoing; and (b)
any designation of loss payees or any similar arrangement under any contract
for insurance.
15
"Loans" shall mean the loans made by the Lender to the Borrower pursuant
to this Agreement.
"MARAD" shall have the meaning ascribed thereto in Section 4.01(b).
"Material Adverse Effect" shall mean any event, development or
circumstance having a material and adverse effect on (a) the business,
operations or financial condition of the Borrower, (b) the ability of the
Borrower to perform its respective obligations or to enforce its material
rights under any Financing Document to which it is a party, (c) the material
rights and remedies of Ex-Im Bank and the Lender under the Financing Documents,
or (d) the validity and enforceability of any material provision of any
Financing Document to which the Borrower is a party.
"Material Compliance" shall mean, as of any date of determination, (a) in
relation to the Ramp Schedule, all items referenced in the Ramp Schedule have
been performed or completed and attained in such a manner that there is no
reasonable likelihood that Phase I Partial Completion will not be achieved by
the relevant Date Certain; and (b) in relation to the Ramp and Capital Costs
Budget, the aggregate costs of the Project as of such date do not exceed the
aggregate costs provided for in the original Ramp and Capital Costs Budget
delivered in accordance with Section 6.01(g) for such stage of the work, or if
not, such cost overruns (together with any cost savings) as at such date, in
the reasonable opinion of the Borrower will not result in aggregate costs of
the Project exceeding one hundred ten percent (110%) of total Project Costs as
set forth in such original Ramp and Capital Costs Budget.
"Maximum Adjusted Debt Service Reserve Requirement" shall mean, at any
time and from time to time, the aggregate Debt Service payable in respect of
the Guaranteed Credits during the next twelve (12) months from the date of
determination, assuming full disbursement of all amounts of the Guaranteed
Credits scheduled to be disbursed during such period.
"Net Contract Price" shall mean, with respect to any Supply Contract, the
U.S. Content plus the Foreign Content.
"Net Worth" shall mean, at any date of determination for any Person, the
sum of the following for such Person and its Subsidiaries, determined in
accordance with GAAP:
(a) the amount of Capital Stock of such Person, plus
(b) the amount of surplus and retained earnings of such Person (or, in
the case of a surplus or retained earnings deficit), minus the amount of such
deficit.
"Notice of Borrowing" shall mean a notice of borrowing submitted by the
Borrower requesting Disbursements hereunder, in the form of Exhibit A.
"Operations Division" shall mean the Operations Division of Ex-Im Bank or
any other division of Ex-Im Bank designated by Ex-Im Bank to perform the
relevant functions of such division.
"Operations Review Notice" shall mean a notice substantially in the form
of Annex C-1.
16
"Other Taxes" shall have the meaning ascribed thereto in Section
13.01(a).
"Payment Default Date" shall have the meaning ascribed thereto in Section
5.02(b)(iii).
"Permitted Indebtedness" shall mean:
(a) prior to the date on which fifty percent (50%) or more of the
Guaranteed Credits have been repaid:
(i) Indebtedness incurred by the Borrower under the Financing
Documents;
(ii) Indebtedness set forth on Schedule 9.01(r), together with any
refinancings of the Indebtedness described in Part II of Schedule 9.01(r) in an
amount up to the aggregate original principal amount of such Indebtedness;
(iii) Indebtedness of the Borrower subordinated to the Guaranteed
Credits on terms acceptable to Ex-Im Bank;
(iv) Indebtedness of the Borrower consisting of trade payables in
respect of Capital Expenditures incurred in the ordinary course of business due
and payable not later than one hundred eighty (180) days from the incurrence
thereof;
(v) Indebtedness of the Borrower consisting of other trade
payables incurred in the ordinary course of business due and payable not later
than one hundred eighty (180) days from the incurrence thereof and not
exceeding US$100,000,000 (or the Singapore Dollar Equivalent thereof) at any
one time outstanding;
(vi) unsecured working capital Indebtedness of the Borrower having
a maturity of not greater than three hundred sixty-four (364) days from the
date incurred;
(vii) Indebtedness of the Borrower consisting of reimbursement
obligations arising in connection with any draw under the Debt Service Reserve
Letter of Credit from time to time;
(viii)if applicable, Indebtedness of the Borrower incurred in
connection with any refinancing or subsequent refinancing of the Convertible
Bond; provided that such refinancing (and each such subsequent refinancing)
shall be on terms reasonably acceptable to Ex-Im Bank;
(ix) Indebtedness of the Borrower incurred in connection with any
hedging arrangements entered into from time to time in accordance with the
Hedging Policies;
(x) Indebtedness of the Borrower in an aggregate amount of up to
US$300,000,000 at any one time outstanding; provided that if such Indebtedness
is payable in a single installment at maturity, such installment shall not be
due earlier than the fifth (5th) anniversary of the disbursement of such
Indebtedness; and
17
(xi) up to US$50,000,000 (or the Singapore Dollar Equivalent
thereof) in the aggregate of obligations of the Borrower under leases required
to be capitalized in accordance with GAAP; provided that (A) no Indebtedness of
the type described in this clause (a)(xi) shall finance assets comprising any
portion of the Fab 7 Plant, and (B) any Indebtedness incurred pursuant to this
clause (a)(xi) shall reduce the amount of Indebtedness of the Borrower
permitted to be incurred under clause (a)(x) above by the aggregate amount of
the obligations of the Borrower under the relevant capital lease or leases; and
(b) after the date on which fifty percent (50%) or more of the
Guaranteed Credits have been repaid, any Indebtedness of the Borrower; provided
that, after giving effect thereto, no Default or Event of Default shall have
occurred and be continuing.
"Permitted Investments" shall mean (a) any deposits made with any
commercial bank whose long-term unsecured senior debt is rated at least "A" (or
the equivalent) by Standard & Poor's Ratings Services and at least "A2" (or the
equivalent) by ▇▇▇▇▇'▇ Investors Service; (b) Investments as of the date hereof
in Chartered Silicon Partners Pte Ltd and future Investments in Chartered
Silicon Partners Pte Ltd to the extent necessary to allow Chartered Silicon
Partners Pte Ltd to pay its current obligations; (c) Investments in
Subsidiaries or in other Persons engaged, in either case, in businesses
reasonably related to the core business of the Borrower; provided that, at any
time prior to the date on which fifty percent (50%) or more of the Guaranteed
Credits have been repaid, Investments permitted under this clause (c) shall not
exceed US$100,000,000 at any one time outstanding; and (d) any other
Investments disclosed to and approved by Ex-Im Bank.
"Permitted Liens" shall mean (a) Liens arising solely by operation of law
and not by way of contract that are discharged within ninety (90) days from the
date such Liens arise; (b) the Liens created pursuant to that certain Credit
Agreement dated September 28, 2000, among Chartered Silicon Partners Pte Ltd
and the banks and financial institutions party thereto; (c) Liens imposed by
law for taxes that are not yet due or are being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted; provided
that adequate reserves therefor have been established in accordance with GAAP;
(d) Liens in respect of capitalized lease obligations permitted under Section
11.01(e); (e) Liens in respect of purchase-money Indebtedness entered into by
the Borrower; provided that any such Lien shall encumber only the asset
acquired with the proceeds of such Indebtedness; (f) Liens consisting of
operating leases or subleases to other Persons of properties or assets owned or
leased by the Borrower or a Subsidiary of the Borrower; (g) Liens solely on any
▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by the Borrower or any Subsidiary in
connection with any letter of intent or purchase agreement permitted hereunder;
(h) purported Liens evidenced by the filing of precautionary Uniform Commercial
Code financing statements relating solely to operating leases of personal
property entered into in the ordinary course of business; (i) Liens that are
contractual rights of setoff (i) relating to the establishment of depository
relations with banks not given in connection with the issuance of Indebtedness,
or (ii) pertaining to pooled deposit and/or sweep accounts of the Borrower
and/or any Subsidiary of the Borrower to permit satisfaction of overdraft or
similar obligations incurred in the ordinary course of business of the Borrower
and the Subsidiaries of the Borrower; (j) Liens created pursuant to the Account
Pledge Agreement; and (k) any other Liens disclosed to and approved by Ex-Im
Bank.
18
"Person" shall mean any individual, firm, corporation, partnership,
association, joint stock company, joint venture, trust, unincorporated
organization, Governmental Authority or political subdivision thereof or any
other entity, incorporated or unincorporated, whether having distinct legal
personality or not.
"Phase I Completion" shall mean the occurrence of each of the following:
(a) the Fab 7 Plant shall have been constructed, erected and installed
in a good and workmanlike manner without material defect, shall be capable
of operating in accordance with its design specifications, and shall
have successfully demonstrated satisfaction of all relevant completion,
commissioning and performance requirements provided for in the relevant
engineering, procurement and construction contracts;
(b) Phase I Partial Completion shall have occurred;
(c) the Fab 7 Plant shall have produced and shipped an average of at
least 12,000 300 millimeter wafers per month over any three (3) calendar months
in a continuous six (6) calendar month period and shall have attained a
production capacity of 15,000 300 millimeter wafers per month;
(d) Ex-Im Bank shall have received a certificate from an Authorized
Officer of the Borrower in form and substance satisfactory to it certifying as
to each of the matters set forth in paragraphs (a), (b) and (c) above; and
(e) Ex-Im Bank shall have received a certificate from the Independent
Engineer certifying as to the matters set forth in paragraph (c) above.
"Phase I Completion Date" shall mean the date on which Ex-Im Bank has
determined that Phase I Completion is achieved.
"Phase I Interim Completion Date" shall mean the date on which an
Authorized Officer of the Borrower has certified, and the Independent Engineer
has confirmed, that the Fab 7 Plant has produced and shipped either (a) not
fewer than an average of 9,000 300 millimeter wafers per month over any three
(3) calendar months in a continuous six (6) calendar month period, or (b) an
average of 7,000 300 millimeter wafers per month over any continuous six (6)
calendar month period.
"Phase I Partial Completion" shall mean the occurrence of each of the
following:
(a) either (i) the Corporate Cash Balance shall equal or exceed
US$800,000,000; or (ii) the Corporate Cash Balance shall equal or exceed
US$500,000,000 and either (A) the Borrower shall have in place a refinancing
plan for the Convertible Bond reasonably acceptable to Ex-Im Bank, or (B) the
Convertible Bond shall have been repaid in full or refinanced on terms
reasonably acceptable to Ex-Im Bank and no amount shall be due or payable
thereunder; provided, however, that if the Borrower shall not have incurred all
of the Indebtedness of the type described in clause (a)(x) of the definition of
"Permitted Indebtedness," the amounts set forth in subclauses (i) and (ii) of
this clause (a) shall be reduced by sixty-six and two-thirds percent (66 2/3%)
of the sum of US$300,000,000 less the amount of Indebtedness of the type
19
described in clause (a)(x) of the definition of "Permitted Indebtedness"
incurred by the Borrower as of the Phase I Partial Completion Date;
(b) the Borrower shall have applied amounts constituting Corporate Cash
Balance from time to time to the payment of Project Costs in an aggregate
amount of not less than US$2.15 for every US$1.00 disbursed under the Tranche A
Guaranteed Credit;
(c) the Fab 7 Plant shall have been constructed, erected and installed
in a good and workmanlike manner without material defect, shall be capable of
operating in accordance with its design specifications, and shall have
successfully demonstrated satisfaction of all relevant completion,
commissioning and performance requirements provided for in the relevant
engineering, procurement and construction contracts;
(d) the Fab 7 Plant shall have produced an average of at least 5,000
300 millimeter wafers per month over any three (3) calendar months in a
continuous six (6) calendar month period and shall have attained a production
capacity of 9,000 300 millimeter wafers per month;
(e) Ex-Im Bank shall have received a certificate from an Authorized
Officer of the Borrower in form and substance satisfactory to it certifying as
to each of the matters set forth in paragraphs (a) through (d) above; and
(f) Ex-Im Bank shall have received a certificate from the Independent
Engineer certifying as to the matters set forth in paragraph (d) above.
"Phase I Partial Completion Date" shall mean the date on which Ex-Im Bank
has determined that Phase I Partial Completion is achieved.
"Pooling Country Freight Costs" shall mean the cost of ocean freight for
shipment of Goods from the United States to the Borrower's Country on an ocean
vessel registered in the Borrower's Country; provided that (a) such freight
costs are included in the Net Contract Price; (b) the Borrower's Country is
deemed a "MARAD Pooling Country" by MARAD; (c) the applicable maritime
agreement between the Borrower's Country and MARAD remains in full force and
effect; and (d) the Borrower has obtained a waiver of shipment on vessels of
U.S. registry from MARAD.
"Progress Payments" shall have the meaning ascribed thereto in Section
6.01(p).
"Project" shall have the meaning ascribed thereto in the recitals.
"Project Costs" shall mean all costs incurred by the Borrower on or after
the Initial Eligibility Date to develop, finance and construct the Project as
and to the extent set forth in the Ramp and Capital Costs Budget, including,
but not limited to:
(a) amounts paid or payable under the Supply Contracts including any
bonuses (other than indemnities, if any);
(b) interest, fees and expenses payable under the Credit Facilities
prior to or at Phase I Completion;
20
(c) costs and expenses of legal, engineering, accounting, construction
management and other advisors incurred in connection with the Project;
(d) fees, commissions and expenses payable to Ex-Im Bank, the Lender
and the Facility Agent at the Initial Disbursement Date;
(e) all development costs and development fees included in, and in the
manner paid in, the Borrower Projections;
(f) construction insurance premiums for coverage obtained prior to
Phase I Completion;
(g) general and administrative costs of the Borrower including payroll,
rent and utilities expenses, office equipment and supplies, vehicles, postage
and communications expenses, travel expenses and the like included in the Ramp
and Capital Costs Budget;
(h) Taxes and other fees incurred by the Borrower in connection with
entering into, registering or performing the Financing Documents to which it is
a party;
(i) any other Taxes payable by the Borrower in connection with the
foregoing Project Costs (other than Project Costs set forth in clause (e)
above); and
(j) such other costs or expenses approved by Ex-Im Bank.
"Property" shall mean any right or interest in or to property of any kind
whatsoever, including revenues, whether real, personal or mixed and whether
tangible or intangible, and regardless of whether owned or in existence at the
date of this Agreement or thereafter acquired or created.
"Prudent Industry Practice" shall mean those practices, methods,
equipment, specifications and standards of safety and performance, as the same
may change from time to time, as are commonly used by foundries comparable to
the Fab 7 Plant as good, safe and prudent engineering practices in connection
with the operation, maintenance, repair and use of electricity generation and
other equipment and facilities, with commensurate standards of safety,
performance, dependability, efficiency and economy.
"Ramp and Capital Costs Budget" shall mean the budget for the
construction and funding of the Project prepared by the Borrower and delivered
in accordance with Section 6.01(g); provided that the Borrower may from time to
time amend or update the timing or delivery of capital expenditures thereunder
in accordance with market conditions, so long as such amendments or updates do
not project that the Phase I Partial Completion Date and the Phase I Completion
Date would occur after the respective Dates Certain.
"Ramp Schedule" shall mean the schedule for the construction of the Fab 7
Plant prepared by the Borrower and delivered in accordance with Section 6.01(f)
(as updated by the Borrower from time to time in accordance with market
conditions; provided that the Borrower shall not update or amend the Ramp
Schedule in a manner that would project that the Phase I Partial Completion
Date would occur after the relevant Date Certain).
21
"Reimbursement" shall have the meaning ascribed thereto in Section
3.01(a).
"Repayment Commencement Date" shall mean (a) with respect to the Tranche
A Guaranteed Credit, the fifteenth (15th) day of the month in which the date
falling six (6) months after the earlier of (i) the Phase I Interim Completion
Date occurs, and (ii) January 15, 2007; and (b) with respect to the Tranche B
Guaranteed Credit, the fifteenth (15th) day of the month in which the date
falling six (6) months after the earlier of (i) the Phase I Completion Date
occurs, and (ii) July 15, 2008.
"Repayment Dates" shall mean the Repayment Commencement Date for each
Guaranteed Credit and the corresponding date every sixth (6th) month
thereafter, up to and including the Final Maturity Date for such Guaranteed
Credit.
"Request for Letter of Credit Approval" shall mean a request for Letter
of Credit approval in the form of Exhibit 5 to Annex B.
"Request for Reimbursement to ▇▇▇▇▇▇▇▇'s Account" shall mean a request
for Reimbursement in the form of Exhibit 2 to Annex B.
"Requested Drawdown Date" shall mean a Business Day specified for a
Disbursement of the Guaranteed Credits in any Notice of Borrowing delivered in
accordance with Section 3.02.
"Responsible Officer" shall mean the officer of the Facility Agent having
direct responsibility for administering this Agreement as notified to Ex-Im
Bank from time to time.
"Restricted Party" shall mean any person listed:
(a) in the Annex to the Executive Order;
(b) on the "Specially Designated Nationals and Blocked Persons" list
maintained by the Office of Foreign Assets Control of the United States
Department of the Treasury; or
(c) in any successor list to either of the foregoing.
"Security Trustee" shall mean JPMorgan Chase Bank, National Association,
or an Affiliate thereof acceptable to Ex-Im Bank.
"Services" shall mean services (including Ancillary Services) (a)
performed under a Supply Contract, and (b) listed in the Acquisition List;
provided that Ex-Im Bank shall determine what does and does not constitute
Services and such determination, in the absence of manifest error, shall be
conclusive and binding for all purposes.
"SIC Codes" shall mean Standard Industrial Classification Codes;
"Singapore" shall mean the Republic of Singapore.
"Singapore Dollar Equivalent" shall mean, with respect to any monetary
amount in Dollars, at any date of determination thereof, the amount of
Singapore Dollars obtained or
22
obtainable by converting the amount of Dollars involved in such computation into
Singapore Dollars at the Applicable Currency Exchange Rate against delivery of
Dollars, at approximately 11:00 a.m. (New York time) on the date of
determination thereof.
"Special LIBOR" shall mean, with respect to any Interest Period, the rate
of interest per annum specified as the Dollar LIBOR Interbank fixing rate in
the Financial Times under the table entitled "International Money Rates" in
effect on the day two (2) Business Days prior to the first (1st) day of the
relevant Interest Period for a term similar to the term of such Interest
Period. If no rate is specified for such day, the applicable rate shall be the
rate specified for the immediately preceding day for which a rate is specified,
and if more than one (1) rate is specified, the applicable rate shall be the
highest of all such rates. In the event the Financial Times either completely
ceases publication or discontinues publication of the Dollar LIBOR Interbank
fixing rate, then Ex-Im Bank shall determine Special LIBOR by reference to a
financial publication with a similar international or U.S. circulation, which
publication shall be selected by Ex-Im Bank in its sole discretion.
"Subsidiary" shall mean, for any Person, any other Person (whether now
existing or hereafter organized) for which at least a majority of the
securities or other ownership interests having ordinary voting power for the
election of directors or other managers are at the time owned or controlled by
such first Person or one or more Subsidiaries of such first Person or any
combination thereof.
"Supply Contract" shall mean the contract(s) approved by Ex-Im Bank (or,
if no contract is executed, any other document(s) satisfactory to Ex-Im Bank)
for the purchase by or on behalf of the Borrower of Goods and Services from an
Exporter or Ancillary Services Provider, together with all exhibits, letter
agreements, attachments and addenda relating thereto; provided, in each case,
that multiple contracts among the same parties with respect to the Guaranteed
Credit will only be considered a single "Supply Contract" for all purposes
hereunder.
"Switch Date" shall have the meaning ascribed thereto in Section 5.06(a).
"Switch Indemnified Amounts" shall have the meaning ascribed thereto in
Section 5.06(c).
"Switch Indemnified Party" shall have the meaning ascribed thereto in
Section 5.06(c).
"Switch Option" shall have the meaning ascribed thereto in Section
5.06(a).
"Taxes" shall mean all taxes of every kind (including without limitation,
gross and net income, gross and net receipts, capital gains, excess profits and
minimum taxes, taxes on tax preferences, capital, net worth, franchise, sales,
use, value-added, stamp, documentary, excise, property and other similar
taxes), charges and withholdings, levies, imposts, duties, fees and deductions
imposed by any government or political subdivision thereof, quasi-governmental
authority or taxing jurisdiction or authority, together with all interest,
additions to tax, penalties and similar add-ons payable with respect thereto.
"Temasek" shall mean Temasek Holdings (Private) Limited.
23
"Total Event of Loss" shall mean, with respect to the Project or the
Borrower, (a) the destruction, damage, impairment or loss of use of the Fab 7
Plant in its entirety or a portion thereof such that the remaining portion
cannot practically be used for the intended purposes, or (b) the destruction,
damage, impairment or loss of use of the Fab 7 Plant that results in an
insurance settlement or receipt of insurance proceeds with respect to the
Project on the basis of an actual or constructive total loss.
"Total Funding Available" shall mean, at any time and from time to time,
the aggregate of (a) all committed and available but undrawn funds under the
Credit Facilities, (b) Corporate Cash Balance, and (c) projected surplus
operating cash flow of the Borrower.
"Trading with the Enemy Act" shall mean the Trading with the Enemy Act of
1917, 50 U.S.C. app. Sections 1 - 6; 7 - 39; 41 - 44 (2000), as amended.
"Tranche A Commitment" shall mean the commitment of the Lender to make
Loans pursuant to the Tranche A Credit Facility, in the amount set forth
therein.
"Tranche A Credit Facility" shall mean up to US$324,384,000 in the
aggregate in Loans that the Lender has agreed to provide to the Borrower
pursuant to and on the terms and conditions set forth herein.
"Tranche A Debt Service Reserve Requirement" shall mean, as of any date
of determination and after giving effect to all payments of Debt Service as of
such date, an amount equal to the aggregate Debt Service of the Borrower
payable during the next succeeding six (6) months in respect of the Tranche A
Guaranteed Credit.
"Tranche A Guaranteed Credit" shall have the meaning ascribed thereto in
the recitals.
"Tranche B Commitment" shall mean the commitment of the Lender to make
Loans pursuant to the Tranche B Credit Facility, in an aggregate amount up to
the Tranche B Guaranteed Credit.
"Tranche B Credit Facility" shall mean Loans that the Lender has agreed
to provide to the Borrower pursuant to and on the terms and conditions set
forth herein, in an aggregate amount up to the Tranche B Commitment.
"Tranche B Debt Service Reserve Requirement" shall mean, as of any date
of determination and after giving effect to all payments of Debt Service as of
such date, an amount equal to (a) prior to the expiry of the Availability
Period for the Tranche B Guaranteed Credit, the sum of (i) the aggregate Debt
Service of the Borrower payable during the next succeeding six (6) months in
respect of the Tranche A Guaranteed Credit plus (ii) six (6) months of interest
on an amount equal to the initial Tranche B Commitment at a rate per annum
equal to the interest rate applicable to the initial Disbursement of the
Tranche B Guaranteed Credit; and (b) thereafter, the aggregate Debt Service of
the Borrower payable during the next succeeding six (6) months in respect of
(i) the Tranche A Guaranteed Credit, and (ii) the Tranche B Guaranteed Credit.
"Tranche B Guaranteed Credit" shall have the meaning ascribed thereto in
the recitals.
24
"Uniform Commercial Code" shall mean the New York Uniform Commercial Code
and any similar law in effect in any jurisdiction.
"United States", "U.S." or "US" shall mean the United States of America.
"U.S. Content" shall mean, with respect to any Supply Contract, the
amount representing the U.S. content in such contract as specified in Part A of
the relevant Exporter's Certificate; provided that Ex-Im Bank shall determine
what does or does not constitute U.S. Content and such determination, in the
absence of manifest error, shall be conclusive and binding for all purposes.
"U.S. Content Percentage" shall mean, with respect to any Supply
Contract, the percentage specified as such in Part A of the relevant Exporter's
Certificate.
"Utilization" shall mean either (a) the making of a Reimbursement in
accordance with the Reimbursement Procedure set forth in Part II of Annex B, or
(b) the issuance of a Letter of Credit in accordance with the Letter of Credit
Procedure set forth in Part III of Annex B.
"Utilization and Disbursement Procedures" shall mean Annex B.
"Utilization Conditions Review Notice" shall mean a notice substantially
in the form of Annex C-3.
"Working Capital Expenditures" shall mean the general and administrative
costs of the Borrower, including payroll expenses; insurance premiums;
operating costs and expenses; engineers', accountants' and attorneys' fees;
utility expenses; consumables; fees and expenses for obtaining and maintaining
Government Approvals required to be maintained by the Borrower; and income
taxes payable by the Borrower.
"World Bank Environmental Guidelines" shall mean any and all of the
following operational directives and policies (including all relevant annexes
thereto) prepared by the World Bank: (a) the August 1998 World Bank Pollution
Prevention and Abatement Handbook Guidelines; (b) Operational Directive 4.30:
Involuntary Resettlement, dated June 1990; and (c) Operational Directive 4.20:
Indigenous Peoples, dated September 1991.
1.02 Interpretation.
(a) The meanings set forth for defined terms in this Agreement and in
any Financing Document shall be equally applicable to both the singular and
plural forms of the terms defined and the masculine, feminine or neuter gender
shall include all genders.
(b) All references in any Financing Document to clauses, sections,
schedules, annexes and exhibits are to clauses, sections, schedules and
exhibits in or to such Financing Document unless otherwise specified therein.
25
(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in a Financing Document shall refer to such Financing Document
as a whole and not to any particular provision of such Financing Document.
(d) All accounting terms not specifically defined in any Financing
Document shall be construed in accordance with GAAP, except as otherwise
provided in such Financing Document. In the event that any Person is required
under any Financing Document to deliver (or cause any other Person to deliver)
any financial statements or other information prepared in accordance with the
generally accepted accounting principals of more than one country and a
conflict or discrepancy exists between them, such conflict or discrepancy shall
be noted and, if necessary, separate financial statements or such other
information shall be prepared and delivered, one on the basis of each country's
generally accepted accounting principals.
(e) References in any Financing Document to any statute, decree,
regulation or other Applicable Law shall be construed as a reference to such
statute, law, decree, regulation or other Applicable Law as re-enacted,
redesignated, amended or extended from time to time, except as otherwise
provided in such Financing Document.
(f) References in any Financing Document to any document or agreement
shall be deemed to include references to such document or agreement as amended,
varied, supplemented or replaced from time to time in accordance with the terms
of such documents or agreements and to include any schedules, exhibits, side
letters and disclosure letters executed in connection therewith.
(g) References to any condition or any representation by the Borrower
being to the best of the Borrower's knowledge shall be deemed to be to the best
knowledge of an Authorized Officer of the Borrower after reasonable inquiry.
(h) References to any Person or Persons shall be construed as a
reference to any successors or assigns of such Person or Persons to the extent
permitted under the Financing Documents.
(i) References to Ex-Im Bank, the Lender, the L/C Bank or the Facility
Agent shall include such party's successors or assigns.
(j) The table of contents and the headings of the several sections and
sub-sections of this Agreement or any Financing Document are intended for
convenience only and shall not in any way affect the meaning or construction of
any provision therein.
(k) References to the words "include" or "including" shall be deemed to
be followed by "without limitation" or "but not limited to," whether or not
they are followed by such phrases or words of similar import.
(l) References to a number of days shall refer to calendar days unless
Business Days are otherwise specified.
(m) References to Dollar or Singapore Dollar amounts herein, when used
as a threshold or trigger for the occurrence of certain consequences hereunder
(e.g., Permitted
26
Indebtedness thresholds, Event of Default triggers, etc.), shall be deemed to
include reference to Dollar Equivalent or Singapore Dollar Equivalent amounts
(or any combination thereof) and vice versa.
SECTION 2. THE GUARANTEED CREDITS
2.01 Amount. To enable the Borrower to finance (a) the Financed Portion of
the costs incurred on or after the Initial Eligibility Date by the Borrower for
the purchase of Goods and Services, and (b) the Exposure Fee payable on such
Financed Portion, the Lender hereby establishes, upon the terms and conditions
set forth in this Agreement, (i) the Tranche A Guaranteed Credit in favor of the
Borrower in an aggregate amount up to US$324,384,000, and (ii) the Tranche B
Guaranteed Credit in favor of the Borrower in an aggregate amount up to (A)
US$653,130,629 less (B) the aggregate amount of all Disbursements made under the
Tranche A Guaranteed Credit. Costs with respect to Services shall be deemed to
have been incurred on the date such Services were performed, as evidenced by the
invoice of the provider of such Services. Costs with respect to Goods shall be
deemed to have been incurred on the date such Goods were shipped, as evidenced
by the date of the relevant bill of lading.
2.02 Availability. Subject to the terms and conditions provided herein,
including, without limitation, the conditions set forth in Section 6,
Disbursements under the Guaranteed Credits may be made no more frequently than
once per calendar month, except as necessary to permit the final Disbursement
under each Guaranteed Credit. Disbursements may be made on or prior to the
expiry of the relevant Availability Period.
SECTION 3. DISBURSEMENTS AND UTILIZATIONS
3.01 Disbursements.
(a) Upon satisfaction of the applicable conditions set forth in Section
6, each Guaranteed Credit may be disbursed in the manner described in, and
subject to the conditions of, this Agreement and the Utilization and
Disbursement Procedures. Disbursements may be made (i) by advances from the
Lender in accordance with the reimbursement procedure set forth in Part II of
Annex B to the Borrower reimbursing the Borrower for payments to an Exporter,
an Ancillary Services Provider or Ex-Im Bank ("Reimbursements"); and/or
(ii) through drawings by an Exporter under, and in accordance with the terms
of, a Letter of Credit issued in accordance with the letter of credit procedure
set forth in Part III of Annex B ("L/C Payments").
(b) The Financed Portion shall not exceed US$643,856,397.
(c) The aggregate amount of Disbursements with respect to costs
incurred by the Borrower to finance the Exposure Fee shall not exceed
US$9,274,232, unless unutilized portions of the Tranche A Guaranteed Credit are
reallocated to the Tranche B Guaranteed Credit in accordance with clause (d)
below. In the event of such a reallocation, the amount of the Exposure Fee set
forth in this Section 3.01(c) shall be increased by an amount equal to the
27
differential increase in the Exposure Fee arising from such reallocation.
Notwithstanding the foregoing, the amount of the Financed Portion shall not
exceed US$643,856,397 at any time.
(d) Unutilized portions of the amounts set forth in clauses (b) and (c)
above may be reallocated solely with Ex-Im Bank's consent (after written
request therefor from the Borrower, a copy of which shall be delivered to the
Facility Agent), which consent shall not be unreasonably withheld.
(e) In connection with all Disbursements, the Borrower and the Facility
Agent shall comply with all applicable procedures, conditions and requirements
specified in this Section 3, Section 14 and the Utilization and Disbursement
Procedures.
3.02 Disbursement Notices; Funding.
(a) The Borrower may request Disbursements by providing a duly
completed Notice of Borrowing, together with related documentation required by
the Utilization and Disbursement Procedures, with respect to each such
Disbursement to the Facility Agent, at least twenty (20) Business Days prior to
the applicable Requested Drawdown Date; provided, however, that in the case of
(i) the initial Notice of Borrowing delivered in connection with the initial
Disbursement under each Guaranteed Credit, the Borrower shall request a
Disbursement under this Agreement of not less than US$5,000,000; and (ii) each
Notice of Borrowing (other than the Notice of Borrowing issued in connection
with the final Disbursement under each Guaranteed Credit) other than such
initial Notices of Borrowing, the Borrower shall request a Disbursement under
this Agreement of not less than US$1,000,000. Each Notice of Borrowing shall
include as attachments (A) all certificates and documentation required thereby
(including any certifications, documents or other items necessary to establish
the satisfaction of the conditions set forth herein), and (B) a Disbursement
Certificate substantially in the form of Exhibit B, to be dated as of the
corresponding Requested Drawdown Date and signed by an Authorized Officer of
the Borrower; provided, however, that the certificates and documentation
required under Section 6.01 in connection with the initial Disbursement under
the Tranche A Guaranteed Credit shall not be required to be attached to any
subsequent Notice of Borrowing delivered in connection with any subsequent
Disbursement, unless this Agreement specifically contemplates otherwise
pursuant to Sections 6.02 through 6.04.
(b) Upon receipt of each Notice of Borrowing, the Facility Agent shall
promptly notify the Operations Division and the Lender of the details of the
requested Disbursement, including the Requested Drawdown Date and the amount of
the requested Disbursement. If the Requested Drawdown Date is prior to the
expiry of the relevant Availability Period and is not a Business Day, then such
Disbursement shall be made on the Business Day next succeeding such Requested
Drawdown Date, and if the Requested Drawdown Date is the date of expiry of the
relevant Availability Period and is not a Business Day, then such Disbursement
shall be made on the Business Day immediately preceding such Requested Drawdown
Date.
(c) The Lender shall not be obliged to fund any requested Disbursement
unless the requirements of Sections 3.03, 3.04 and 3.05, as applicable, and the
relevant conditions precedent set forth in Section 6 are satisfied.
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(d) Subject to Section 3.02(c), the Lender shall, on or before 11:00
a.m. New York time on each Requested Drawdown Date, make available to the
Borrower in the manner described hereafter, in immediately available funds, the
Disbursement amount requested to be made on such Requested Drawdown Date in the
corresponding Notice of Borrowing. With respect to any Disbursement effected
pursuant to a Reimbursement, the Lender shall pay such amounts to the Borrower
in accordance with Section 3.04. With respect to any Disbursement effected
pursuant to an L/C Payment, the Lender shall make such Disbursement amount
available to the L/C Bank by transferring it to the account or Person, in each
case, in the United States, indicated by the L/C Bank.
(e) The Lender shall make available and continue to fund each
Disbursement at its Lending Office.
(f) If the Lender receives notification to disburse funds in an amount
that would result in (i) all outstanding Disbursements under the Tranche A
Guaranteed Credit exceeding the Tranche A Commitment, or (ii) all outstanding
Disbursements under the Tranche B Guaranteed Credit exceeding the Tranche B
Commitment, then it shall only be required to disburse funds in an amount equal
to the amount remaining under the Tranche A Commitment or the Tranche B
Commitment, as applicable.
(g) All parties hereto understand and agree that Ex-Im Bank shall have
up to ten (10) Business Days from the date of receipt of any documentation
submitted to it by the Facility Agent pursuant to this Section 3 to complete
its review of such documentation.
(h) In connection with any requested Disbursement, Ex-Im Bank may, at
any time on or prior to 11:00 a.m. on the second Business Day preceding any
Requested Drawdown Date and from time to time, issue a notice (a "Drawstop
Notice") to the Borrower, the Lender and the Facility Agent notifying them that
such Disbursement shall not be made, if and only if:
(i) solely in the case of the initial Disbursement under the
Tranche A Guaranteed Credit, any condition set forth in Section 6.01 or 6.03 is
not met, or having been met, is no longer met;
(ii) solely in the case of the initial Disbursement under the
Tranche B Guaranteed Credit, any condition set forth in Section 6.02 or 6.03 is
not met, or having been met, is no longer met; or
(iii) in the case of any Disbursement other than the initial
Disbursement under each of the Tranche A Guaranteed Credit and the Tranche B
Guaranteed Credit, any condition set forth in Section 6.03 is not met, or
having been met, is no longer met.
(i) A Drawstop Notice issued pursuant to Section 3.02(h) shall remain
in full force and effect until the Default, Event of Default or other event
specified in Section 3.02(h)(i), (ii) or (iii) that led to the issuance of such
Drawstop Notice has been remedied by the Borrower to the satisfaction of Ex-Im
Bank or waived by Ex-Im Bank.
(j) Upon the occurrence of any of the events set forth in Section
3.02(i) within ten (10) Business Days after the issuance of such Drawstop
Notice (and provided that no other
29
Drawstop Notice has been issued that has not been revoked), such Drawstop Notice
shall be revoked, and Ex-Im Bank shall promptly notify the Borrower, the Lender
and the Facility Agent thereof, whereupon the Lender shall make the requested
Disbursement as soon as practicable after its receipt of such notice (and in any
event no later than 11:00 a.m. (New York time) on the later of the Requested
Drawdown Date and the fourth (4th) Business Day after such receipt).
(k) If none of the events set forth in Section 3.02(i) occurs within
ten (10) Business Days after the issuance of any Drawstop Notice that has not
been revoked, the Notice of Borrowing to which such Drawstop Notice relates
shall be deemed to have been cancelled by the Borrower, without prejudice to
the Borrower's right to submit other Notices of Borrowing in accordance with
the provisions of this Section 3.02; provided, however, that upon any such
deemed cancellation, the Borrower shall be responsible for the costs, fees and
expenses related to such cancelled Disbursement in accordance with the terms
hereof.
(l) The Lender and the Facility Agent shall be entitled to rely on the
validity of any Drawstop Notice issued by Ex-Im Bank and to assume that any
such Drawstop Notice was properly issued, in each case without independent
investigation of the basis for such issuance. Notwithstanding Section
16.03(c), each of the Lender and the Facility Agent shall be entitled to assume
that no Drawstop Notice has been issued if it has not received any such notice.
3.03 Issuance of Letters of Credit.
(a) On the terms and subject to the conditions hereof, and subject to
the consent of the Lender (in its discretion), the Borrower may request that
the L/C Bank open for the account of the Borrower letters of credit, in form
and substance satisfactory to the L/C Bank, the Borrower, the Facility Agent,
the Lender and Ex-Im Bank, in each case for which Ex-Im Bank has issued a
Certificate Approving Letter of Credit under this Agreement (each, a "Letter of
Credit"). At no time shall the aggregate undrawn face amount of the
outstanding Letter of Credit plus the aggregate amount of all L/C Payments and
Reimbursements previously made exceed the total amount of the Guaranteed
Credit. The amount available under the Letter of Credit shall be reduced by
the amount of any drawing thereunder.
(b) A request by the Borrower for the issuance of a Letter of Credit by
the L/C Bank shall be made by delivering (i) to the Facility Agent, the L/C
Bank and Ex-Im Bank, at least twenty (20) Business Days prior to the proposed
date for the issuance of such Letter of Credit, a Request for Letter of Credit
Approval in accordance with Annex B, together with the documents required to be
delivered in connection therewith; and (ii) simultaneously to the L/C Bank an
application on the L/C Bank's customary forms for an irrevocable documentary
credit (provided that such Letter of Credit shall provide that, in the case of
conflict between the terms of the customary form and this Agreement, this
Agreement shall govern), together with such other documents relating to the
opening of commercial credits as the L/C Bank may request.
(c) Promptly upon receiving a Request for Letter of Credit Approval and
the accompanying documents required by Section 3.03(b), the Facility Agent
shall determine whether such documentation complies with the requirements set
forth in Part III of the Utilization and Disbursement Procedures. Thereafter,
not later than fourteen (14) Business Days
30
prior to the proposed Utilization, the Facility Agent shall provide to Ex-Im
Bank (to the attention of the Operations Division) an Operations Review Notice.
(d) Thereafter, and not later than fourteen (14) Business Days prior to
the proposed Utilization, the Facility Agent shall provide to Ex-Im Bank (to
the attention of the Asset Management Division) a Utilization Conditions Review
Notice.
(e) After receipt of the Utilization Conditions Review Notice sent by
the Facility Agent in accordance with Section 3.03(d), if Ex-Im Bank approves
the proposed Utilization, it shall deliver a Certificate Approving Letter of
Credit to the L/C Bank in writing, with a copy to the Facility Agent, not later
than the close of business at Ex-Im Bank four (4) Business Days prior to the
proposed Utilization.
(f) The L/C Bank may issue the requested Letter of Credit upon, but
only upon, its receipt of the Certificate Approving Letter of Credit.
(g) Each Letter of Credit issued hereunder shall:
(i) provide for L/C Payments on one or more Disbursement Dates,
subject to (A) receipt by Ex-Im Bank and the Facility Agent of a Notice of
Borrowing and the documents required to be delivered hereunder and under the
Utilization and Disbursement Procedures, each at the times required to be
delivered under the applicable document, and (B) the L/C Bank's satisfaction in
form and substance with the documentation required under the Utilization and
Disbursement Procedures evidenced by issuance of Documentary Approval as and
when required by Section 3.05(b).
(ii) include all provisions required under this Section 3.03(g)
and Section 3.03(h) and set forth in Part III of the Utilization and
Disbursement Procedures;
(iii) provide that the amount of each L/C Payment thereunder shall
be paid or deposited as provided in Section 3.05(e); and
(iv) provide for amendment, if required, in accordance with the
procedures set forth in the Utilization and Disbursement Procedures, including,
without limitation, receipt of a Certificate Approving Amendment to Letter of
Credit from Ex-Im Bank.
(h) Each Letter of Credit shall be effective on its date of issuance
(which shall be no earlier than the Initial Disbursement Date) and shall expire
in accordance with its terms in effect from time to time; provided that in no
event shall any Letter of Credit remain in effect beyond the expiry of the
relevant Availability Period. Each Letter of Credit shall be an irrevocable
documentary sight letter of credit in compliance with and subject to, to the
extent not inconsistent with the requirements of this Section 3.03(h), the
Uniform Customs and Practice for Documentary Credits, International Chamber of
Commerce Publication No. 500 (1993 Revision) (as the same may be amended from
time to time) and the Applicable Law of the State of New York.
31
3.04 Reimbursements.
(a) If a Notice of Borrowing includes a request for a Reimbursement on
any Disbursement Date, then such Notice of Borrowing shall include the amount
of such Reimbursement and all documentation required for a Reimbursement set
forth in Part II of the Utilization and Disbursement Procedures and Sections
3.02(a) and 6 hereof (including, without limitation, a Request for
Reimbursement to Borrower's Account).
(b) Promptly upon receiving a Notice of Borrowing that includes a
request for a Reimbursement, together with the related documentation required
by Sections 3.02(a) and 3.04(a), the Facility Agent shall determine whether
such documentation complies with the requirements set forth in Part II of the
Utilization and Disbursement Procedures and Sections 3.02(a) and 6 hereof.
(c) Thereafter, the Facility Agent shall, not later than fourteen (14)
Business Days prior to the Requested Drawdown Date, provide (i) to the
attention of the Operations Division, an Operations Review Notice, together
with all required attachments; and (ii) to the attention of the Asset
Management Division, (A) a copy of such notice, without attachments, and (B) a
Disbursement Review Notice.
(d) If Ex-Im Bank is satisfied with the documentation submitted in
connection with a requested Reimbursement, then Ex-Im Bank shall issue a
Certificate Authorizing Reimbursement to the Lender, with a copy to the
Facility Agent, not later than the close of business at Ex-Im Bank four (4)
Business Days prior to the Requested Drawdown Date.
(e) If Ex-Im Bank has issued a Certificate Authorizing Reimbursement to
the Facility Agent in accordance with Section 3.04(d) (in each case, in
connection with the requested Disbursement), then on the Requested Drawdown
Date, unless the Lender has received (i) prior to 11:00 a.m. on the Requested
Drawdown Date a notice from the Borrower withdrawing the Notice of Borrowing
for the requested Disbursement, or (ii) at or prior to 11:00 a.m. on the second
(2nd) Business Day preceding the Requested Drawdown Date a Drawstop Notice from
Ex-Im Bank in accordance with Section 3.02(h) that has not been revoked, then
on the Requested Drawdown Date the Lender shall make the relevant Reimbursement
available to the Borrower for deposit into an account of the Borrower, the
details of which shall be notified by the Borrower to the Lender at least five
(5) Business Days prior to the Requested Drawdown Date.
3.05 L/C Payments.
(a) If a Notice of Borrowing includes a request for an L/C Payment,
then the Borrower shall provide a copy of such Notice of Borrowing to the L/C
Bank and shall indicate the amount of such L/C Payment. Any such Notice of
Borrowing delivered to the Facility Agent and the L/C Bank shall include all
documentation required to be presented to the L/C Bank and the Facility Agent
pursuant to the Letter of Credit, the Utilization and Disbursement Procedures,
Sections 3.02(a) and 6 hereof and this Section 3.05.
(b) Promptly upon receiving a Notice of Borrowing that includes a
request for an L/C Payment, together with the related documentation required by
Section 3.05(a), the Facility Agent shall instruct the L/C Bank (i) to
determine whether the documents required to be presented for
32
an L/C Payment under the related Letter of Credit have been presented, and if
so, shall instruct the L/C Bank to deliver Documentary Approval to the Facility
Agent at least fourteen (14) Business Days prior to the Requested Drawdown Date;
and (ii) to deliver to Ex-Im Bank (to the attention of the Operations Division)
copies of the documents submitted in accordance with Section 3.05(a) or
otherwise related to such L/C Payment, except any Exporter's Certificates or
Anti-Lobbying Certificate, which shall each be a manually signed original.
(c) Thereafter, and not later than fourteen (14) Business Days prior to
the Requested Drawdown Date, the Facility Agent shall have provided to Ex-Im
Bank (to the attention of the Asset Management Division) a Disbursement Review
Notice.
(d) If, following receipt of the Disbursement Review Notice, Ex-Im Bank
determines that all required certificates and documentation in respect of the
Disbursement to be made in relation to the proposed L/C Payment have been
provided, Ex-Im Bank shall approve such L/C Payment by issuing a L/C Payment
Approval Certificate to the Facility Agent (which shall forward such L/C
Payment Approval Certificate to the L/C Bank) not later than the close of
business at Ex-Im Bank four (4) Business Days prior to the Requested Drawdown
Date.
(e) If the L/C Bank receives a L/C Payment Approval Certificate, unless
the L/C Bank has received (i) prior to 11:00 a.m. on the Requested Drawdown
Date a notice from the Borrower withdrawing the Notice of Borrowing for the
requested Disbursement, or (ii) at or prior to 11:00 a.m. on the second (2nd)
Business Day preceding the Requested Drawdown Date a Drawstop Notice from Ex-Im
Bank in accordance with Section 3.02(h) that has not been revoked, then on the
Requested Drawdown Date, (A) the L/C Bank may honor the drawing under the
Letter of Credit by paying the amount of the related L/C Payment to the related
Exporter, provided no actual disbursement shall be made directly to the
Borrower, and (B) the Lender shall, subject to Section 3.05(g), and provided
that the Lender shall have previously approved the L/C Payment in writing,
reimburse the L/C Bank for such L/C Payment in accordance with Section 3.02(e).
(f) The Facility Agent shall instruct the L/C Bank to deliver to Ex-Im
Bank (to the attention of the Operations Division) an advice of payment to the
Beneficiary's account within three (3) Business Days after the date of any such
L/C Payment.
(g) Provided that at the time a L/C Payment is made there shall not
have been issued a Drawstop Notice that has not been revoked, and such L/C
Payment is a Disbursement covered by the Ex-Im Bank Guarantee, the obligation
of the Lender to reimburse the L/C Bank for such L/C Payment pursuant to and in
accordance with this Section 3.05 shall be absolute, irrevocable and
unconditional and shall not be affected by any circumstance or subject to any
other qualification or exception whatsoever and shall be honored in accordance
with the terms and conditions of this Agreement under all circumstances,
including, without limitation:
(i) any claim, counterclaim, defense, right of set-off or other
right that the Lender may have or assert against the L/C Bank, the Borrower or
any other Person;
(ii) any fact or circumstance relating to the Borrower;
(iii) the occurrence and continuance of an Event of Default;
33
(iv) any lack of validity or enforceability of this Agreement or
any of the other Financing Documents;
(v) any draft, certificate or any other document presented under
the Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect; or
(vi) any use of proceeds of an L/C Payment hereunder for the
payment of ineligible goods or services.
Without limiting the generality of the foregoing, the Lender agrees that
its obligation to reimburse the L/C Bank for an L/C Payment under this Section
3.05 is not subject to the satisfaction of any of the conditions set forth in
Section 6 at the time such obligation arises hereunder. The Lender agrees that
each payment made by it to the L/C Bank pursuant to this Section 3.05 shall be
made without any withholding or reduction whatsoever.
(h) If the Lender does not reimburse the L/C Bank for an L/C Payment at
the time and in the manner required pursuant to this Section 3.05, the Facility
Agent shall promptly upon becoming aware thereof notify the Borrower and Ex-Im
Bank, and the Borrower shall immediately pay such amount to the L/C Bank,
together with interest thereon from the date of such L/C Payment to the date of
such payment by the Borrower at the rate that would have applied to the related
Disbursement had the Lender made such reimbursement, without prejudice to the
rights of the Borrower and the L/C Bank against the Lender. Any amount paid by
the L/C Bank and later reimbursed by the Borrower to the L/C Bank pursuant to
this Section 3.05(h) shall not be considered a Disbursement hereunder and such
payment shall not be deemed to be a prepayment of a Disbursement for purposes
of this Agreement and the other Financing Documents. The Facility Agent shall
promptly upon becoming aware thereof notify Ex-Im Bank of the amount of any
such reimbursement.
3.06 Facility Agent.
(a) If (i) the Facility Agent receives written notice that a Default or
Event of Default has occurred and is continuing, or (ii) the Responsible
Officer, in the course of reviewing a Notice of Borrowing or any accompanying
or related documents pursuant to this Section 3, determines, in his or her
judgment, taking into account such information of which such Responsible
Officer has actual knowledge at the time, or otherwise obtains actual knowledge
that a Default or Event of Default has occurred and is continuing, then the
Facility Agent shall promptly, and in any event within five (5) days of making
such a determination based on judgment, notify Ex-Im Bank and the Borrower in
writing of such Default or Event of Default.
(b) The Facility Agent shall promptly inform Ex-Im Bank of the contents
of any notice or document received by it from the Borrower hereunder, unless
Ex-Im Bank has been shown to have been copied on such notice or document.
(c) If Ex-Im Bank requires any additional information in connection
with any documentation submitted or request made pursuant to this Section 3,
then the Facility Agent shall, at Ex-Im Bank's request, provide reasonable
assistance to Ex-Im Bank in obtaining additional information or addressing any
omissions or deficiencies in documentation.
34
(d) If the Facility Agent receives written notice or the Responsible
Officer has actual knowledge that all or any portion of the Guaranteed Credits
or the Loans has been cancelled (other than by Ex-Im Bank), or that any
Disbursement or Utilization under this Agreement has been suspended, it shall
promptly so notify Ex-Im Bank.
(e) The Facility Agent shall ensure that, prior to providing a
Utilization Conditions Review Notice, Disbursement Review Notice or Operations
Review Notice to Ex-Im Bank, or at the request of Ex-Im Bank at any other time
during the Availability Period, it shall consult with the Responsible Officer
in relation to the matters referred to in a Utilization Conditions Review
Notice, Disbursement Review Notice or Operations Review Notice.
SECTION 4. EX-IM BANK FINANCING REQUIREMENTS
4.01 Eligibility for Ex-Im Bank Financing. To be eligible for financing
under the Guaranteed Credits and the Ex-Im Bank Guarantee:
(a) The Borrower shall have made or caused to be made a cash payment
for the purchase of Goods and Services in an amount equal to not less than
fifteen percent (15%) of the Net Contract Price.
(b) All Goods that are to be exported by ocean vessel must be transported
from the United States in vessels of U.S. registry, as required by 46 U.S.C.
Section 1241-1 (Public Resolution No. 17 of the 73rd Congress of the United
States, as amended), except to the extent that a waiver of this requirement is
obtained from the U.S. Maritime Administration ("MARAD"), as described in Annex
B. If any Goods are shipped on vessels of non-U.S. registry without a MARAD
waiver or contrary to the provisions of a MARAD waiver, such Goods will not be
eligible under the Ex-Im Bank Guarantee and thus will not be eligible for
financing under the Guaranteed Credits. If Goods are shipped on ocean vessels or
aircraft of U.S. registry, the cost of shipment may be included in the U.S.
Content of the Supply Contract. Subject to the waiver requirements set forth
above, if such Goods are shipped on ocean vessels or aircraft of non-U.S.
registry, the cost of shipment may constitute Foreign Content if such cost has
been included in the Net Contract Price. Pooling Country Freight Costs shall be
deemed U.S. Content.
In addition, Goods used in the provision of Services, if shipped by ocean
vessel from the U.S. to the Borrower's Country, may be required to be
transported from the United States in vessels of U.S. registry pursuant to 46
U.S.C. Section 1241-1 (Public Resolution No. 17 of the 73rd Congress of the
United States, as amended).
(c) The Borrower shall obtain or cause to be obtained insurance against
marine and transit hazards on all shipments of Goods in an amount not less than
the amount of the Disbursements that have been or are to be made with respect
to those shipments. United States insurers shall be given a non-discriminatory
opportunity to bid for such insurance business related to the Goods. The cost
of the premiums for such insurance may be included in the U.S. Content of the
insured Goods if (i) the insurance is placed in the United States with U.S.
companies, and (ii) the premiums are paid in the United States in Dollars. In
all other cases, the cost of the premiums may be included in the Foreign
Content associated with the Goods if such cost has been included in the Net
Contract Price of the Goods.
35
4.02 Coverage of Ex-Im Bank Guarantee. Subject to the terms and conditions
of this Agreement, Disbursements made with respect to Goods and Services may not
exceed in the aggregate the sum of:
(a) an amount equal to the lesser of (i) eighty-five percent (85%) of
the Net Contract Price of such Goods and Services, or (ii) one hundred percent
(100%) of the U.S. Content of such Goods and Services; plus
(b) an amount equal to one hundred percent (100%) of the applicable
Exposure Fee;
and, subject to the terms and conditions of the Ex-Im Bank Guarantee Agreement,
all Disbursements shall be fully covered by the Ex-Im Bank Guarantee.
4.03 Ancillary Services. Ancillary Services relating to the Guaranteed
Credits shall be treated in the same manner as any other Services (including,
without limitation, any applicable requirements set forth in this Section 4);
provided that the Foreign Content associated with any such Ancillary Services
shall be deemed to be zero (0) if either (a) Ex-Im Bank requires that the
Borrower or another Person pay for the provision of such Ancillary Services by
an Ancillary Services Provider selected by Ex-Im Bank, or (b) Ex-Im Bank in its
sole determination finds that such Ancillary Services are both necessary in
order for the underlying transaction to go forward and cannot be reasonably
obtained in the United States.
SECTION 5. TERMS OF THE GUARANTEED CREDITS
5.01 Principal Repayment. Subject to Section 5.03, the Borrower shall
repay all principal amounts disbursed under each Guaranteed Credit in ten (10)
successive semi-annual installments on the Repayment Dates for such Guaranteed
Credit in accordance with the percentages set forth in Schedule 1 to Annex A-1
or A-2, as applicable; provided that, on the Final Maturity Date for each
Guaranteed Credit, the Borrower shall repay in full the principal amount of the
relevant Guaranteed Credit then outstanding.
5.02 Interest Payment.
(a) To the Lender.
(i) On each Interest Payment Date for a Guaranteed Credit, the
Borrower shall pay interest on all amounts of such Guaranteed Credit disbursed
and outstanding from time to time, calculated at an interest rate per annum
equal to the Applicable Interest Rate for the immediately preceding Interest
Period.
(ii) If all or any part of principal, accrued interest, fees or
other amounts owing to the Lender under this Agreement or any Guaranteed Note
is not paid in full when due, whether at stated maturity, by acceleration or
otherwise, the Borrower shall pay to the Lender, on demand, interest on the
unpaid amount (to the extent permitted by Applicable Law) for the period from
the date such amount was due until such amount shall have been paid in full at
a rate per annum equal to the Applicable Interest Rate in effect at the time of
such failure to pay any such amount when due plus one percent (1%).
36
(iii) Any amounts not paid in full when due under this Section
5.02(a) by virtue of the imposition of or the deduction or netting of any
withholding taxes shall not be deemed to have been paid in full when due.
(b) To Ex-Im Bank.
(i) Notwithstanding Section 5.02(a)(i), if Ex-Im Bank shall have
made a claim payment to the Lender with respect to any Floating Rate Note,
then, beginning on the date of such claim payment, the definition of Special
LIBOR shall apply to each such Floating Rate Note (in place of the definition
of LIBOR contained in each such Floating Rate Note) for all purposes,
including, without limitation, Section 5.02(b)(ii).
(ii) Notwithstanding Section 5.02(a)(ii), if Ex-Im Bank shall have
made a claim payment to the Lender with respect to any Guaranteed Note, then,
beginning on the date of such claim payment, if any amount of principal of or
accrued interest on any Guaranteed Note then owing to Ex-Im Bank is not paid in
full when due, whether at stated maturity, by acceleration or otherwise, the
Borrower shall pay to Ex-Im Bank, on demand, interest on such unpaid amount (to
the extent permitted by Applicable Law) for the period from the date such
amount was due to Ex-Im Bank until such amount shall have been paid in full at
an interest rate per annum equal to one percent (1%) above the interest rate
then applicable under Section 5.02(a)(i) (as modified by Section 5.02(b)(i)).
(iii) Except as otherwise provided in Section 5.02(b)(ii) with
respect to amounts of principal and accrued interest, if, at any time, any
other amount owing to Ex-Im Bank under this Agreement or any Guaranteed Note is
not paid in full when due, the Borrower shall pay to Ex-Im Bank, on demand,
interest on such unpaid amount for the period from the date such amount was due
(the "Payment Default Date") until such amount shall have been paid in full at
an interest rate per annum equal to one percent (1%) above the U.S. Treasury
Rate. The "U.S. Treasury Rate" shall mean the interest rate specified in the
Federal Reserve Statistical Release H.15 (519) Selected Interest Rates for six-
month (180 days) Treasury Bills under the category entitled "Treasury Bills,
Auction Average (Investment)" (or, if not included under such category, the
category entitled "Treasury Constant Maturities") that is in effect on the
Payment Default Date.
5.03 Prepayment.
(a) Voluntary Prepayment. Subject to the terms of Section 5.03(c), the
Borrower may from time to time (i) at any time prior to the Switch Date in
respect of either Guaranteed Credit, and (ii) thereafter, only after obtaining
the written consent of the Lender (which consent may be withheld in its
discretion), voluntarily prepay all or any part of the principal of the
relevant Guaranteed Credit on any Interest Payment Date; provided that (A) the
Borrower shall have given to the Lender and Ex-Im Bank at least thirty (30)
days' prior written notice of such prepayment (which notice shall oblige the
Borrower to prepay the specified Guaranteed Credit in the amount and on the
date set forth therein), (B) each prepayment shall be in an amount no less than
US$5,000,000 (or such lesser amount as the Lender may agree) and multiples of
US$1,000,000 in excess thereof (except for prepayments of the final Guaranteed
Credits
37
outstanding), (C) the Borrower shall also pay all other amounts then due and
payable by the Borrower under the Financing Documents as of the date of such
prepayment, including interest which has accrued on the amount being prepaid to
the date of prepayment, and (D) such prepayment will not cause a Default, an
Event of Default or other breach or default under any Financing Document.
(b) Mandatory Prepayment. Subject to the terms of Section 5.03(c), the
Borrower shall be obligated to prepay the principal of the Guaranteed Credits,
together with accrued interest on the principal amount of the Guaranteed
Credits so prepaid and all other amounts then due to Ex-Im Bank, the Lender and
the other Financing Parties under this Agreement, the Guaranteed Note(s) and
the other Financing Documents, including, without limitation, break funding
costs and prepayment premium, if any, as follows:
(i) upon the occurrence of any Casualty Event affecting the Fab 7
Plant, the Loans shall be prepaid on the date falling six (6) months after the
occurrence of such Casualty Event from (and in the amount of) any Casualty
Proceeds therefrom not applied within six (6) months from the date of the
occurrence of such Casualty Event to the restoration or repair of the Fab 7
Plant; provided, however, that if the Borrower repairs, rebuilds or restores
the Fab 7 Plant, the obligation to prepay the Loans pro rata from the Casualty
Proceeds shall arise only following completion of such repair, rebuilding or
restoration and only to the extent of the remaining amount of Casualty Proceeds
received by or on account of the Borrower;
(ii) upon the occurrence of any Total Event of Loss, the Loans
shall be repaid immediately upon the Borrower's receipt of the relevant funds
from (and in the aggregate amount of) any related insurance proceeds received
by the Borrower;
(iii) in the event the Phase I Partial Completion Date does not
occur by the Date Certain, the Loans shall be repaid in full as promptly as
practicable and in no event later than April 15, 2007; and
(iv) in the event Temasek shall fail to maintain at any time,
directly or indirectly, (A) Control of the Borrower, or (B) an ownership
interest in the Borrower's Capital Stock of less than thirty percent (30%), the
Loans shall be repaid in full on the date falling thirty (30) days after the
occurrence of such event.
(c) Application of Prepayments. All prepayments shall be applied in
the inverse order of their maturity and, in cases where more than one (1)
Guaranteed Note is outstanding, pro rata to each Guaranteed Note.
(d) Prepayments Irrevocable; No Reborrowing. Any prepayment by the
Borrower of any of the principal amount of the Guaranteed Credit in accordance
with this Section 5.03 shall be irrevocable and final when paid, and the
Borrower shall not be entitled to subsequently reborrow or redraw any part of
such prepaid principal amount.
38
5.04 Evidence of Indebtedness.
(a) The Borrower agrees that to evidence further its obligation to
repay all amounts disbursed and to be disbursed under each Guaranteed Credit,
with interest accrued thereon, it shall, (i) not later than the Initial
Disbursement Date, issue and deliver to the Lender, in accordance with the
written instructions of the Lender, one (1) duly completed Guaranteed Note in
respect of the Tranche A Guaranteed Credit; and (ii) not later than the date of
the initial Disbursement under the Tranche B Guaranteed Credit, issue and
deliver to the Lender, in accordance with the written instructions of the
Lender, one (1) duly completed Guaranteed Note in respect of the Tranche B
Guaranteed Credit. Each Guaranteed Note initially shall be a Floating Rate
Note substantially in the form of Annex A-1 and, following the Switch Date for
the Tranche A Guaranteed Credit or the Tranche B Guaranteed Credit, as the case
may be, shall be substituted for a Fixed Rate Note substantially in the form of
Annex A-2 as provided in Section 5.06, and shall be valid and enforceable as to
its principal amount at any time only to the extent of the aggregate amount of
the outstanding Disbursements thereunder and, as to interest, only to the
extent of the interest accrued thereon. Any notations by the Lender on a
Guaranteed Note regarding payments made on account of the principal thereof, in
the absence of manifest error, shall be conclusive and binding. Following
payment in full of a Guaranteed Note, the Lender shall, upon the Borrower's
request, surrender such Guaranteed Note to the Borrower through Ex-Im Bank for
cancellation.
(b) If requested by the Lender (or, if the Lender's rights hereunder
are subrogated to Ex-Im Bank, Ex-Im Bank), within ten (10) days after the
expiry of the Availability Period for each Guaranteed Credit, the Borrower
shall issue and deliver to the Lender (or Ex-Im Bank, as the case may be) a new
duly completed Guaranteed Note for such Guaranteed Credit in exchange for the
corresponding Guaranteed Note previously issued and delivered in connection
with such Guaranteed Credit in accordance with this Section 5.04, whereupon the
Lender (or Ex-Im Bank, as the case may be) shall surrender such previously
issued Guaranteed Note for cancellation to the Borrower through Ex-Im Bank.
(c) If any Guaranteed Note is mutilated, lost, stolen or destroyed, the
Borrower shall issue and deliver to the Lender (or, if the Lender's rights
hereunder are subrogated to Ex-Im Bank, Ex-Im Bank) a new duly completed
Guaranteed Note of the same date, maturity and denomination as the Guaranteed
Note so mutilated, lost, stolen or destroyed, together with an officer's
certificate of the Borrower certifying and warranting as to the due
authorization, execution and delivery of such new Guaranteed Note, and (if
requested by Ex-Im Bank or the Lender in its reasonable discretion) legal
opinions of the Borrower's special New York counsel and the Borrower's special
Singapore counsel (in each case, at the expense of Borrower) reasonably
satisfactory to Ex-Im Bank and the Lender as to the due authorization,
execution and delivery of such new Guaranteed Note, and the legality, validity,
binding nature and enforceability thereof in form and substance reasonably
satisfactory to Ex-Im Bank and the Lender; provided that, in the case of a
mutilated Guaranteed Note, such mutilated Guaranteed Note shall be returned to
the Borrower for its cancellation after examination by Ex-Im Bank and
cancellation of the Guarantee Legend issued solely with respect to such
mutilated Guaranteed Note, and in the case of a lost, stolen or destroyed
Guaranteed Note theretofore held by the Lender, there shall first be furnished
to the Borrower and Ex-Im Bank an instrument of
39
indemnity from the Lender reasonably satisfactory to the Borrower and Ex-Im Bank
and evidence or certification of such loss, theft or destruction reasonably
satisfactory to each of them.
(d) All replacement Guaranteed Notes issued in connection with this
Agreement shall be signed by an Authorized Officer of the Borrower, as named in
the evidence of authority submitted pursuant to Section 6.01(c)(iv) or
otherwise acceptable to Ex-Im Bank and the Lender.
5.05 Use of Proceeds. The proceeds of the Disbursements shall be available
(and the Borrower agrees that it shall use such proceeds) solely to pay for (a)
the Financed Portion of costs incurred on or after the Initial Eligibility Date
for the purchase of Goods and Services, and (b) the Exposure Fee related to such
Financed Portion.
5.06 Interest Rate Switch Option.
(a) The Borrower shall have the option (the "Switch Option") at any
time after the date of the final Disbursement under each of the Tranche A
Guaranteed Credit and the Tranche B Guaranteed Credit on only one (1) occasion
with respect to a Floating Rate Note, with the consent of the Lender, to
require the Lender, the Facility Agent and Ex-Im Bank to accept a Fixed Rate
Note in substitution for the existing Floating Rate Note with respect to all of
the Tranche A Guaranteed Credit or the Tranche B Guaranteed Credit, or both, as
the case may be; provided that (i) no Default shall have occurred and be
continuing on the Switch Date, (ii) the Floating Rate Note shall evidence an
aggregate outstanding principal amount of at least US$10,000,000, and (iii) on
or before the Switch Date, the Lender and Ex-Im Bank shall have received legal
opinions from the Borrower's special New York counsel and the Borrower's
Singapore counsel (in each case, at the expense of the Borrower) reasonably
satisfactory to Ex-Im Bank and the Lender relating to the due authorization,
execution and delivery of the Fixed Rate Note, and the legality, validity,
binding nature and enforceability of the Fixed Rate Note in form and substance
reasonably satisfactory to Ex-Im Bank and the Lender. Subject to satisfaction
of the provisos and conditions set forth in this Section 5.06, to exercise the
Switch Option, the Borrower shall give the Facility Agent, the Lender and Ex-Im
Bank no less than thirty (30) Business Days' prior written notice (which shall
be irrevocable), setting forth the date (which shall be an Interest Payment
Date) of the proposed interest rate switch (the "Switch Date"). The Borrower
shall, at least ten (10) Business Days prior to the Switch Date, issue and
deliver to the Lender (with a copy to Ex-Im Bank (to the attention of the
Operations Division)) a new Fixed Rate Note in exchange for the Floating Rate
Note previously issued and delivered in accordance with Section 6.01(a) or
Section 6.02(b), as applicable, whereupon, after the Guarantee Legend on such
Floating Rate Note has been cancelled by Ex-Im Bank and such cancelled Floating
Rate Note has been returned to the Lender, the Lender shall surrender such
previously issued Floating Rate Note for cancellation to the Borrower. If the
interest rate applicable to such new Fixed Rate Note has not been determined at
the time the Fixed Rate Note is issued and delivered by the Borrower in
accordance with the preceding sentence, the Borrower authorizes the Lender, and
the Lender agrees, to insert such interest rate in the Fixed Rate Note promptly
upon its being determined in accordance with Section 5.06(b). Notwithstanding
the foregoing, the Borrower shall not be entitled to exercise the Switch Option
with respect to the Tranche A Guaranteed Credit without the prior written
consent of the Lender if the Phase I Partial Completion Date does not occur
prior to the Date Certain for Phase I Partial Completion.
40
(b) The Lender shall, prior to 10:00 a.m., New York City time, on the
proposed Switch Date relating to a Switch Option, notify the Borrower of the
proposed fixed rate to apply to the new Fixed Rate Note applicable to such
Switch Option to be issued on such Switch Date (and the manner of calculation
of the prepayment premium contemplated by Section 13.06), which shall be
determined by the Lender, unless otherwise agreed with the Borrower, on the
basis of such factors as the Lender deems relevant (including, without
limitation, based on the fixed rate obtained under a swap agreement arranged by
or on behalf of the Lender with respect to interest payable on the relevant
portion of the Guaranteed Credit the subject of such Switch Option) as the
fixed rate of interest for loans of a tenor applicable to the principal amount
evidenced by such Fixed Rate Note. The Borrower shall confirm whether such
fixed rate is acceptable by giving written notice to the Lender and Ex-Im Bank
in form and substance satisfactory to the Lender by 11:00 a.m., New York City
time, on the date of such notice from the Lender. If the Borrower does not
accept a proposed fixed rate with respect to any requested exercise of a Switch
Option on any Interest Payment Date, it shall not be able to again request the
Switch Option with respect to such Interest Payment Date, but shall be able to
request the exercise of a Switch Option with respect to any subsequent Interest
Payment Date, subject to the conditions set forth in paragraph (a) above, upon
following the procedures set forth in this paragraph (b). Once a fixed rate
has been accepted with respect to either the Tranche A Guaranteed Credit or the
Tranche B Guaranteed Credit, it shall not be subject to change.
(c) The Borrower agrees to indemnify each of Ex-Im Bank and the Lender
(the "Switch Indemnified Party") from and against any and all damages, losses,
claims, liabilities and related costs and expenses, including reasonable
attorneys' fees and disbursements (all the foregoing being collectively
referred to as "Switch Indemnified Amounts") awarded against or incurred by
such Switch Indemnified Party arising out of or as a result of (i) a failure of
the interest rate conversion referred to herein to occur on the scheduled
applicable Switch Date, excluding, however, applicable Switch Indemnified
Amounts to the extent resulting directly from gross negligence or willful
misconduct on the part of such Switch Indemnified Party, or (ii) a failure by
the Borrower to pay the prepayment premium contemplated by Section 13.06.
SECTION 6. CONDITIONS PRECEDENT
6.01 Conditions Precedent to Initial Disbursement or Initial Utilization
Under the Tranche A Guaranteed Credit. The obligation of the Lender to make and
Ex- Im Bank to permit a Disbursement on the Initial Disbursement Date shall be
subject to the fulfillment of the conditions precedent set forth below (in a
manner satisfactory to Ex-Im Bank and, in respect of the conditions precedent
set forth in Sections 6.01(a), (b), (c), (j), (l), (m) and (n), the Lender, or
waived in writing by Ex-Im Bank and, in respect of the conditions precedent set
forth in Sections 6.01(a), (b), (c), (j), (l), (m) and (n), the Lender):
(a) Financing Documents. Each Financing Document (except the
Guaranteed Note in respect of the Tranche B Guaranteed Credit) (i) shall have
been duly executed and delivered by the parties thereto, (ii) shall be in full
force and effect, and (iii) shall be in form and substance satisfactory to Ex-
Im Bank and the Lender.
41
(b) Closing Certificate. The Financing Parties shall have received a
certificate of an Authorized Officer of the Borrower substantially in the form
of Exhibit C.
(c) Corporate Documents. The Financing Parties shall have received the
following documents:
(i) a true, correct and complete copy of the Memorandum and
Articles of Association of the Borrower, certified as of a recent date by the
appropriate Governmental Authority of Singapore, to the extent such
certification is ordinarily available from such Governmental Authority or, to
the extent not so available, from an Authorized Officer of the Borrower;
(ii) a certificate dated as of a recent date from the appropriate
Governmental Authority of Singapore as to the good standing (if applicable) and
existence of the Borrower, to the extent such certificate is ordinarily
available from such Governmental Authority, or, to the extent not so available,
from an Authorized Officer of the Borrower;
(iii) copies of resolutions and, as applicable, ratifications
adopted by the board of directors of the Borrower, certified to be true,
correct and complete by an Authorized Officer of the Borrower, that (A) approve
the Borrower's participation in the Project and the Financing, and (B)
authorize the execution, delivery and performance of each Financing Document to
which the Borrower is or is to be a party; and
(iv) a certificate of an Authorized Officer of the Borrower as to
the incumbency and specimen signature of each officer who is authorized to (A)
execute and deliver Financing Documents to which the Borrower is or is to be a
party, or (B) otherwise act on the Borrower's behalf with regard to the
Project, together with an attestation as to the signature and office of such
Authorized Officer from another Authorized Officer or (only in the case that
such other Authorized Officer is not available) a person duly authorized by the
competent Governmental Authority to exercise notary public functions.
(d) Financial Statements. The Financing Parties shall have received:
(i) the most recent audited annual and unaudited quarterly
financial statements of the Borrower prepared in accordance with GAAP; and
(ii) a certificate dated as of the Initial Disbursement Date from
the appropriate financial officers of the Borrower, substantially in the form
of Exhibit D, stating that (A) such financial statements (1) are true, correct
and complete in all material respects as of the date of such statements,
(2) have been prepared in accordance with GAAP, and (3) present fairly, in all
material respects, the financial condition of the Borrower and the results of
its operations and cash flows for such period (subject, in the case of
quarterly financial statements, to normal year-end audit adjustments); and
(B) no material adverse change in the consolidated assets, liabilities,
operations or financial condition of the Borrower has occurred from that set
forth in the most recent annual and quarterly financial statements provided
pursuant to this Section 6.01(d), except as otherwise provided (which
exceptions shall also be in form and substance satisfactory to Ex-Im Bank) in
any such certificate with respect to the financial statements of the Borrower.
42
(e) Opinions of Counsel. The Financing Parties shall have received
legal opinions dated as of the Initial Disbursement Date and addressed to them
from the Borrower's special New York counsel and the Borrower's in-house and
external Singapore counsel, in each case in respect of the Financing Documents
and such other matters as are required by Ex-Im Bank or the Lender, in form and
substance satisfactory to Ex-Im Bank and the Lender.
(f) Ramp Schedule. The Financing Parties shall have received:
(i) a copy of the Ramp Schedule, in form and substance
satisfactory to Ex-Im Bank, which shall set forth, among other things, the
proposed ramp production timetable and a schedule for achieving certain wafer
production capacity thresholds and which shall be consistent with the Ramp and
Capital Costs Budget and the Borrower Projections; and
(ii) a certificate dated as of the Initial Disbursement Date from
an Authorized Officer of the Borrower stating that (A) the Ramp Schedule and
its supporting documents (1) were prepared in good faith by the Borrower, (2)
are based upon assumptions that are consistent with the applicable provisions
of the Financing Documents and Applicable Law and that the Borrower considers
to be reasonable, and (3) in the Borrower's reasonable judgment represent the
best reasonable estimate of the information set forth therein as of the Initial
Disbursement Date; and (B) as of the Initial Disbursement Date the construction
of the Fab 7 Plant has progressed in accordance, and is in Material Compliance,
with the Ramp Schedule.
(g) Ramp and Capital Costs Budget. The Financing Parties shall have
received:
(i) a copy of the initial Ramp and Capital Costs Budget, which
shall (A) project (on an aggregate and quarterly basis) Capital Expenditures
through the projected Phase I Completion Date, (B) be based on assumptions
stated therein that are consistent with the provisions of the Financing
Documents and Applicable Law, and that Ex-Im Bank considers reasonable, (C)
demonstrate compliance with the requirements of the Financing Documents,
(D) estimate (on a quarterly basis) all Capital Expenditures theretofore
incurred, (E) project funding thereof from the Credit Facilities, and (F)
otherwise be in form and substance satisfactory to Ex-Im Bank; and
(ii) a certificate dated as of the Initial Disbursement Date from
an Authorized Officer of the Borrower stating that (A) the Ramp and Capital
Costs Budget and its supporting documents (1) were prepared in good faith by
the Borrower, (2) are based upon assumptions that are consistent with the
applicable provisions of the Financing Documents and Applicable Law and that
the Borrower considers to be reasonable, and (3) in the Borrower's reasonable
judgment represent the best reasonable estimate of the information set forth
therein as of the Initial Disbursement Date; and (B) as of the Initial
Disbursement Date the construction of the Fab 7 Plant is in Material Compliance
with the Ramp and Capital Costs Budget. The Ramp and Capital Costs Budget
shall be consistent with the initial Ramp Schedule and the Borrower
Projections.
(h) Annual Budget. The Financing Parties shall have received a copy of
the initial Annual Budget in form and substance satisfactory to Ex-Im Bank.
43
(i) Borrower Projections. The Financing Parties shall have received:
(i) at least fifteen (15) Business Days prior to the Initial
Disbursement Date, paper and electronic copies of the pro forma financial
statements and projections of revenues, expenses and cash flows with respect to
the Project and the Borrower for each computation calendar year 2004 through
2014, together with the underlying models, supporting assumptions and
explanations thereto (collectively, the "Borrower Projections"), which shall
(A) be consistent with the Financing Documents, (B) be consistent with the Ramp
and Capital Costs Budget and the Ramp Schedule, and (C) otherwise be in form
and substance satisfactory to Ex-Im Bank; and
(ii) a certificate dated as of the Initial Disbursement Date from
an Authorized Officer of the Borrower stating that the Borrower Projections and
the underlying models and assumptions related thereto, including, without
limitation, the underlying assumptions in respect of all applicable tax laws
and regulations (A) were prepared in good faith by the Borrower, (B) are based
upon assumptions that are consistent with the applicable provisions of the
Financing Documents and Applicable Law and are, to the best knowledge of such
financial officer, after reasonable inquiry, reasonable, and (C) represent the
Borrower's best reasonable estimate of the information set forth therein as of
the Initial Disbursement Date.
(j) Project Compliance. An Authorized Officer of the Borrower shall
have provided to the Financing Parties a certificate in form and substance
satisfactory to Ex-Im Bank and the Lender to the effect that the Borrower and
the Project are in compliance (i) in all respects with Environmental
Requirements, and (ii) in all material respects with all other Applicable Laws.
(k) Corporate Cash Balance; Sufficient Financing.
(i) Ex-Im Bank shall have received a certificate from an
Authorized Officer of the Borrower, together with such other evidence (if any)
it may request, stating that, as of December 31, 2004, either (A) the sum of
the then current Corporate Cash Balance plus the aggregate amount of Corporate
Cash Balance previously expended on Project Costs equals or exceeds
US$900,000,000, or (B) the sum of the then current Corporate Cash Balance plus
the aggregate amount of Corporate Cash Balance previously expended on Project
Costs equals or exceeds US$800,000,000 and the Borrower has obtained (or Ex-Im
Bank is satisfied that the Borrower, on terms acceptable to Ex-Im Bank, will
obtain) the Fab 7 Customer Deposit in an amount equal to or exceeding
US$100,000,000.
(ii) Ex-Im Bank shall have received evidence satisfactory to it
that the financing committed to be provided to the Borrower pursuant to the
Financing Documents, together with the amounts of Corporate Cash Balance
described in Section 6.01(k)(i), is sufficient to enable the Borrower to pay
all Project Costs set forth in the Ramp and Capital Costs Budget and otherwise
to achieve the Phase I Completion Date.
(l) Process Agent. The Financing Parties shall have received evidence
in form and substance satisfactory to Ex-Im Bank and the Lender that (i) the
Borrower has, for the period commencing on the Initial Disbursement Date and
ending one (1) year after the Final Maturity
44
Date (in respect of the Tranche B Guaranteed Credit), duly and irrevocably
appointed an agent for service of process acceptable to Ex-Im Bank and the
Lender in the jurisdiction(s) in which it is required to submit to such
jurisdiction, (ii) each such agent has accepted such appointment, and (iii) all
fees scheduled to accrue to each such agent for service of process through and
including one (1) year after the Final Maturity Date (in respect of the Tranche
B Guaranteed Credit) have been paid in full.
(m) Stamp Duties; Taxes; Etc. The Financing Parties shall have
received evidence satisfactory to Ex-Im Bank and the Lender that all required
stamp duties, registration fees, filing costs, documentary taxes and other
charges in connection with the Financing, including, without limitation, the
execution, delivery, filing, recording, perfection and admissibility into
evidence of any Financing Document, have been paid in full or an appropriate
exemption therefrom has been obtained (other than corporate taxes of Ex-Im Bank
and the Lender, which shall be for the relevant party's account), except to the
extent that the Borrower has provided Ex-Im Bank and the Lender with assurances
satisfactory to it that such duties, fees, costs and charges will be paid in
full with the proceeds of the initial Disbursement under the Tranche A
Guaranteed Credit.
(n) Fees and Expenses. The Borrower shall have paid or caused to be
paid, as applicable, all Exposure Fees and Guarantee Commitment Fees due as of
the Initial Disbursement Date to the Financing Parties and all other fees and
expenses due as of the Initial Disbursement Date to any of them (including all
reasonable fees and expenses of legal counsel and other advisors and
consultants for any of the foregoing and fees due and payable under the Fee
Letter) on or before the Initial Disbursement Date, or arrangements
satisfactory to such Financing Party shall have been made for the payment of
such fees and expenses from the proceeds of the initial Disbursement under the
Tranche A Guaranteed Credit, to the extent eligible for such funding.
(o) Acquisition List. Ex-Im Bank shall have received a list of the
Goods and Services containing, with respect to each Good and Service, a brief
description, the quantity, estimated invoice cost, Exporter's DUNS Numbers (if
available) and product SIC Codes.
(p) Supply Contracts. Ex-Im Bank and the Facility Agent shall have
received a true and complete copy of each Supply Contract, together with
evidence that such agreement(s) have been duly executed and delivered by the
Borrower and the relevant Exporter and are in full force and effect. If any
Supply Contract provides for payments to an Exporter prior to completion and
delivery of any Eligible Goods and Services ("Progress Payments"), Ex-Im Bank
and the Facility Agent shall have also received a copy of the schedule for such
Progress Payments, which, in Ex-Im Bank's judgment, must be reasonable and
consistent with industry and financial standards. The Facility Agent and Ex-Im
Bank shall have received a certificate from an Authorized Officer of the
Borrower certifying that each such Supply Contract has been duly executed by
the Borrower and the relevant Exporter and is in full force and effect.
(q) Anti-Lobbying Certificates. Ex-Im Bank shall have received
original Anti-Lobbying Certificates in the form of Exhibit 3 to Annex B signed
by authorized officer(s) of the Lender and the Facility Agent.
45
(r) Tranche A Debt Service Reserve Requirement. The Borrower shall
have either established and funded the Debt Service Reserve Account or obtained
a Debt Service Reserve Letter of Credit, in either case in an amount equal to
the Tranche A Debt Service Reserve Requirement.
(s) Responsible Officer. The Facility Agent shall have notified Ex-Im
Bank in writing of the name of and contact information for the Responsible
Officer.
(t) Account Pledge Agreement. (i) All security interests intended to
be created pursuant to the Account Pledge Agreement shall have been created
and, where appropriate, registered or recorded, or other action shall have been
taken that is necessary in Singapore to create (to the extent permitted by
Applicable Law) a first-priority perfected security interest and Lien over the
Charged Property (as defined in the Account Pledge Agreement) in favor of the
Security Trustee and Ex-Im Bank; (ii) all fees and duties then due and payable
in connection with such registration, recordation or other action shall have
been paid; and (iii) all such security interests shall be valid and enforceable
against (A) the Borrower, and (B) any subsequent lienor (including a judgment
lienor), holder of a charge or transferee for value or not, in bulk, by
operation of law, for the benefit of creditors, or otherwise.
6.02 Conditions Precedent to Initial Disbursement or Initial Utilization
Under the Tranche B Guaranteed Credit. The obligation of the Lender to make and
Ex- Im Bank to permit a Disbursement on the date of the initial Disbursement
under the Tranche B Guaranteed Credit shall be subject to the fulfillment of the
conditions precedent set forth below (in a manner satisfactory to Ex-Im Bank
(and, in the case of Section 6.02(b), the Lender) or waived in writing by Ex-Im
Bank (and, in the case of Section 6.02(b), the Lender)):
(a) Tranche A Credit Facility. The Tranche A Credit Facility shall
have been fully disbursed or the unutilized Tranche A Commitment shall have
been reallocated to the Tranche B Credit Facility.
(b) Guaranteed Note. The Lender shall have received (with a copy to
Ex-Im Bank (to the attention of the Asset Management Division)) a Guaranteed
Note in respect of the Tranche B Guaranteed Credit duly executed and delivered
by the Borrower and in full force and effect.
(c) Tranche B Debt Service Reserve Requirement. The Borrower shall
have either established and funded the Debt Service Reserve Account or obtained
a Debt Service Reserve Letter of Credit, in either case in an amount equal to
the Tranche B Debt Service Reserve Requirement.
(d) Phase I Partial Completion Date. The Phase I Partial Completion
Date shall have occurred.
6.03 Conditions Precedent to Each Disbursement or Utilization. The
obligation of the Lender to make and Ex-Im Bank to permit any Disbursement or
Utilization under any Guaranteed Credit shall be subject to the fulfillment of
the conditions precedent set forth below (in a manner satisfactory to Ex-Im Bank
(and, in the case of Sections 6.03(b) and (m), the
46
▇▇▇▇▇▇) or waived in writing by Ex-Im Bank (and, in the case of Sections 6.03(b)
and (m), the Lender)):
(a) Ex-Im Bank Facility Agreement; Guaranteed Notes. This Agreement,
duly authorized, executed and delivered by the respective parties hereto, and
each applicable Guaranteed Note shall be in full force and effect.
(b) Ex-Im Bank Guarantee Agreement. The Ex-Im Bank Guarantee
Agreement, duly authorized, executed and delivered by the respective parties
thereto, shall be in full force and effect.
(c) Notice of Borrowing; Disbursement Certificate. The Borrower shall
have delivered to Ex-Im Bank, the Lender and the Facility Agent (i) a Notice of
Borrowing, and (ii) a Disbursement Certificate, each in accordance with Section
3.02(a).
(d) No Default; Representations and Warranties. Both immediately
before and after giving effect to such Disbursement:
(i) no Default or Event of Default shall have occurred and be
continuing (or shall result from the making of the Disbursement); and
(ii) all representations and warranties of the Borrower contained
in Section 9 hereof and in any other Financing Document shall be true, correct
and complete in all material respects with the same force and effect as though
such representations and warranties had been made on and as of the date of such
Disbursement, except for any such representations and warranties herein or in
such Financing Documents that expressly relate only to an earlier date.
(e) Proceedings. There shall be no actions, suits, proceedings or, to
the best of the Borrower's knowledge, claims or investigations at law or in
equity (if applicable) pending before any Governmental Authority, arbitral
tribunal or other body that could reasonably be expected to succeed on the
merits (i) to set aside, restrain, enjoin or prevent the development,
installation or construction of the Fab 7 Plant or the making of any
Disbursement; or (ii) against or affecting the Borrower, any of the Borrower's
property or the Project that, in the case of this clause (ii) (if adversely
determined), could reasonably be expected to result in a Material Adverse
Effect.
(f) Construction Progress Report. The Financing Parties shall have
received from the Borrower the most recent Construction Progress Report
substantially in the form of Exhibit E and required to be delivered pursuant to
Section 10.01(r). If any Construction Progress Report shall have indicated the
absence of Material Compliance with the original Ramp and Capital Costs Budget
delivered pursuant to Section 6.01(g) or the Ramp Schedule, Ex-Im Bank shall be
satisfied in its reasonable discretion that Total Funding Available is adequate
for the Borrower to achieve Phase I Completion by the Date Certain.
(g) Investment in Project. Ex-Im Bank shall have received evidence
satisfactory to it that the Borrower has applied amounts constituting Corporate
Cash Balance from time to time to the payment of Project Costs in an aggregate
amount of (i) not less than US$2.15 for every
47
US$1.00 of original Tranche A Commitment, and (ii) not less than US$0.70 for
every US$1.00 of original Tranche B Commitment.
(h) Fees and Expenses. The Borrower shall have paid or arranged for
payment (including, to the extent permitted, arrangement for payment out of
Disbursements) of all fees, expenses and other charges payable by it hereunder
as of such Disbursement Date (including, without limitation, the Exposure Fee,
all Guarantee Commitment Fees, all fees then due and payable under the Fee
Letter, and all reasonable fees and expenses of legal counsel and other
advisors and consultants for any of the Financing Parties) and under and in
accordance with the other Financing Documents in a manner satisfactory to Ex-Im
Bank.
(i) Other Documents, Etc. Such other consents, amendments,
acknowledgments, statements, certificates, instruments, agreements, opinions,
information, documents and evidence relating to this Agreement or any
Guaranteed Note or the transactions contemplated hereby as any of the Financing
Parties may have reasonably requested shall have been delivered to the
Financing Parties in form and substance satisfactory to Ex-Im Bank.
(j) Material Adverse Effect. No Material Adverse Effect shall exist;
nor shall any fact or circumstance be known to the Borrower, Ex-Im Bank or the
Lender that could reasonably be expected to result in a Material Adverse
Effect.
(k) Utilization and Disbursement Procedures. The Facility Agent and
Ex-Im Bank shall have received the documents required under Annex B with
respect to the requested Disbursement or Utilization, including, without
limitation, invoices, Exporter's Certificates, Anti-Lobbying Certificates and
bills of lading, if applicable.
(l) Supply Contract(s). Ex-Im Bank and the Facility Agent shall have
received a copy of any Supply Contract(s) not previously delivered to them, and
the Supply Contract(s) in respect of which the Guaranteed Credits are requested
shall be, or continue to be, in full force and effect.
(m) Guarantee Certificate. Ex-Im Bank shall have issued a Guarantee
Certificate with respect to the requested Utilization.
(n) Compliance. Such Disbursement shall not result in a violation of
the Borrower's Memorandum and Articles of Association, bylaws or directors'
resolutions; any Financing Document; or Applicable Law.
6.04 Special Condition Precedent to Tranche A Guaranteed Credit
Utilizations After December 31, 2005. The obligation of the Lender to make and
Ex-Im Bank to permit a Disbursement under the Tranche A Guaranteed Credit at any
time on or after December 31, 2005, shall be subject to the fulfillment in a
manner satisfactory to Ex-Im Bank (or the waiver in writing by Ex-Im Bank) of
the further condition precedent that the Borrower issue to Ex-Im Bank a
certificate (together with any other evidence as Ex-Im Bank may request) stating
that the Corporate Cash Balance at the end of Fiscal Year 2005 equals or exceeds
US$500,000,000; provided, however, that if the Borrower shall not have incurred
all of the Indebtedness described in clause(a)(x) of the definition of
"Permitted Indebtedness," the Corporate Cash Balance at the end of Fiscal Year
2005 shall be reduced by sixty-six and two-thirds percent (66 2/3%) of the
48
sum of $300,000,000 less the amount of Indebtedness of the type described in
clause (a)(x) of the definition of "Permitted Indebtedness" incurred by the
Borrower as of the end of Fiscal Year 2005.
SECTION 7. FEES AND EXPENSES
7.01 Ex-Im Bank Fees. The Borrower shall pay or cause to be paid to Ex-Im
Bank the following fees:
(a) a guaranteed loan commitment fee ("Guarantee Commitment Fee") equal
to XXXXX per annum on the uncancelled and undisbursed balance from time to time
of the Guaranteed Credits, computed on the basis of the actual number of days
elapsed (including the first day but excluding the last), using a 360-day year,
accruing from January 12, 2005, and payable on each January 15 and July 15,
beginning on July 15, 2005; and
(b) not later than the date of each Disbursement, an exposure fee (an
"Exposure Fee") equal to (i) with respect to the Tranche A Guaranteed Credit,
XXXXX of the amount of the related Reimbursement or L/C Payment; and (ii) with
respect to the Tranche B Guaranteed Credit, XXXXX of the amount of the related
Reimbursement or L/C Payment.
The parties hereto acknowledge and agree that the Guarantee Commitment Fee
shall continue to accrue and become due and payable as described above during
any period in which Utilizations are suspended as described in Section
12.02(a).
7.02 Fees Under the Fee Letter; L/C Bank Fees. The Borrower shall pay the
Lender, the Facility Agent and the L/C Bank the fees set forth in the Fee
Letter.
SECTION 8. PAYMENTS
8.01 Method of Payment. All payments to be made by the Borrower under this
Agreement or a Guaranteed Note (whether at stated maturity, by reason of
acceleration or prepayment or otherwise) shall be made without set-off or
counterclaim in Dollars in immediately available and freely transferable funds
no later than 11:00 a.m. (New York time) on the date on which due (as
applicable):
(a) if to the Lender, to such account as directed in writing by the
Lender by not less than five (5) Business Days' written notice; and
(b) if to Ex-Im Bank, at the Federal Reserve Bank of New York for
credit to Ex-Im Bank's account: U.S. Treasury Department 02103004 TREAS
NYC/CTR/BNF=/AC-4984 OBI=Export-Import Bank Due ____________ on EIB Credit No.
AP080562XX-Singapore from Chartered Semiconductor Manufacturing Ltd.
(c) Any amounts received after 11:00 a.m. (New York time) on any date
may, in the discretion of the Lender, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. If
any payment hereunder shall be due on a day that
49
is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
hereunder shall be made in Dollars.
8.02 Application of Payments. Each of the Facility Agent, the Lender and
Ex- Im Bank, as the case may be, shall apply payments received by it in respect
of the Disbursements or any Guaranteed Note (whether at stated maturity, by
reason of acceleration, prepayment or otherwise) in the following order of
priority: (a) interest due pursuant to Section 5.02(a)(ii), but only to the
extent such amounts are included in the Guaranteed Amount; (b) Guarantee
Commitment Fees, Exposure Fees (to the extent not otherwise already paid) and
all other amounts due to Ex-Im Bank in respect of the Financing Documents and
not otherwise provided for under this Section 8.02; (c) interest due pursuant to
Section 5.02(a)(i); (d) installments of principal then due and payable; and (e)
all other amounts due to the appropriate Financing Party under this Agreement or
the other Financing Documents, and not otherwise provided for in this Section
8.02. Payments with respect to multiple Guaranteed Notes shall be applied pro
rata to each Guaranteed Note in accordance with the above priorities.
SECTION 9. REPRESENTATIONS AND WARRANTIES
9.01 Representations and Warranties of the Borrower. The Borrower
represents and warrants to each of the Financing Parties that:
(a) Organization and Status. The Borrower is a public company limited
by shares duly organized, validly existing and in good standing under the laws
of Singapore.
(b) Capitalization. Schedule 9.01(b) sets forth the capitalization of
the Borrower as of the date of this Agreement, including (i) the Capital Stock
issued and outstanding, and (ii) the shareholders of the Borrower holding five
percent (5%) or more of the Capital Stock of the Borrower and the Capital Stock
held by each such shareholder. All of the issued and outstanding Capital Stock
is validly issued, fully paid and non-assessable.
(c) Power and Authority. The Borrower (i) has the requisite power and
authority to (A) execute, deliver and perform each Financing Document and other
material agreement to which it is a party in accordance with its terms, (B) own
the Property it purports to own, (C) conduct its business as now being
conducted and as proposed to be conducted, (D) lease, possess or otherwise use
the Property leased, possessed or otherwise used by it, (E) incur Indebtedness,
and (F) do all other things necessary or appropriate in respect of the Project;
and (ii) is duly qualified to conduct business and is in good standing in all
jurisdictions where qualification is necessary for any of the foregoing.
(d) Due Authorization, Execution and Delivery. All corporate and,
where necessary, shareholder action on the part of the Borrower and each of its
shareholders that is required for the authorization, execution, delivery and
performance of each Financing Document to which the Borrower is or will be a
party has been duly and effectively taken. The Borrower has (or by the Initial
Disbursement Date will have) duly executed and delivered each Financing
Document to which it is a party (other than the Guaranteed Note in respect of
the Tranche B Guaranteed Credit). The obligations of the Borrower under the
Financing Documents to which the Borrower
50
is or will be a party are or, in the event that any such Financing Document has
not yet been executed and delivered by the Borrower, will be when executed and
delivered, the legal, valid and binding obligations of the Borrower, enforceable
in accordance with their terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and by general principles of equity
(regardless of whether enforcement thereof is sought in a proceeding at law or
in equity).
(e) No Consent, Violation or Conflict. None of the execution, delivery
or performance of any Financing Document to which the Borrower is a party, the
consummation of any of the transactions contemplated thereby or the performance
of or compliance with the terms and conditions thereof:
(i) requires the approval or consent of any counterparty or
holder or trustee of any debt or other obligation of the Borrower that has not
been obtained;
(ii) constitutes a material default by the Borrower under, or
results in the material violation of, any contract, agreement or arrangement to
which the Borrower is a party or by which it or any of its Property or assets
may be bound or affected;
(iii) without limitation of Section 9.01(q), violates any
Environmental Requirement or the material terms of any Applicable Law
applicable to the Borrower or the Project including, without limitation, any
Environmental Law, Corrupt Practices Laws, IEEPA, the Trading with the Enemy
Act or any of the foreign assets control regulations of the United States
Treasury Department (31 C.F.R. Subtitle B, Chapter V, as amended), or any
ruling issued thereunder or any enabling legislation or Presidential Executive
Order granting authority therefor; or
(iv) constitutes a default under or contravenes or violates any
provision of the Borrower's Memorandum and Articles of Association or bylaws.
(f) Government Approvals.
(i) The Borrower is in compliance in all material respects with
all Government Approvals that are required to be obtained by or are otherwise
applicable to the Borrower. The Project, if implemented in accordance with the
plans and specifications therefor, will conform to and comply in all material
respects with all Government Approvals applicable thereto and all Applicable
Laws.
(ii) Each of the Borrower (and, solely to the extent related to
the Project, its respective officers, directors, employees, agents and
Affiliates) and the Project is in compliance in all material respects with
Applicable Laws.
(g) Ramp and Capital Costs Budget; Ramp Schedule. The Ramp and Capital
Costs Budget and the Ramp Schedule (i) are accurate and complete; (ii) were
prepared in good faith by the Borrower; (iii) are based upon reasonable
assumptions stated therein that are consistent with the provisions of the
Financing Documents and Applicable Law; (iv) demonstrate compliance with the
Financing Documents; (v) specify, among other things, the schedule for
achievement of
51
wafer production capacity benchmarks; (vi) describe and estimate (on an
aggregate and quarterly basis) all Project Costs theretofore incurred and
expected to be incurred; and (vii) represent the best reasonable estimate as of
the date such Ramp and Capital Costs Budget and Ramp Schedule were provided of
all costs and expenses anticipated by the Borrower to be incurred prior to the
latest date on which the Phase I Completion Date is scheduled at such time, in
order to design, procure, construct, install, operate, maintain, develop and own
the Fab 7 Plant in the manner contemplated by the Financing Documents. The Fab 7
Plant and the Project are in Material Compliance with the original Ramp and
Capital Costs Budget delivered pursuant to Section 6.01(g) and the Ramp
Schedule. The Borrower is not aware of any event, circumstance or condition that
could reasonably be expected to cause the Borrower to become out of Material
Compliance with the original Ramp and Capital Costs Budget delivered pursuant to
Section 6.01(g) or the Ramp Schedule.
(h) Projections. Each of the financial and operating projections
provided to any of the Financing Parties (including the Borrower Projections,
the Ramp and Capital Costs Budget and the Ramp Schedule) by or on behalf of the
Borrower (i) was prepared with due care and in good faith by the Borrower;
(ii) represents a good faith, reasonable estimate as of the date such
projection was provided, based on reasonable assumptions as to all matters
affecting the estimates therein (including with respect to material
liabilities) that are consistent with the Financing Documents and fairly
present the Borrower's expectations as to the matters covered thereby as of the
date thereof; and (iii) was prepared on a basis substantially consistent with
the financial statements referred to in Section 9.01(m). There are no
statements, assumptions or conclusions in any such projections that are based
upon or include information then known to the Borrower to be misleading at the
time made or that fail to take into account material information then known to
the Borrower regarding the matters reported therein.
(i) Intellectual Property. The Borrower owns, has a license to use or
otherwise has rights to use, free and clear of all Liens (other than Permitted
Liens), all patents, patent applications, trademarks, permits, service marks,
names, trade secrets, proprietary information and knowledge, technology,
computer programs, databases, copyrights, licenses, franchises and formulas and
other intellectual property rights that are material to, and as of the date
that this representation and warranty is given necessary for, the design,
procurement, construction, installation, operation, maintenance, development
and ownership of the Fab 7 Plant. To the best of the Borrower's knowledge,
none of the design, procurement, construction, installation, operation,
maintenance, development or ownership of the Fab 7 Plant infringes, violates,
misappropriates or otherwise conflicts with the intellectual property rights of
any third party in any material respect.
(j) Proceedings; Labor Disputes and Force Majeure.
(i) Except as set forth in Schedule 9.01(j), there are no
actions, suits, proceedings, claims or investigations at law or in equity by or
before any Governmental Authority, arbitral tribunal or other body pending or,
to the best of the Borrower's knowledge, threatened against or affecting the
Borrower, its Property or the Project (A) that are likely to affect the
validity or enforceability of any Financing Document or agreement relating to
the construction or operation of the Fab 7 Plant or that are likely to result
in suspensions or
52
injunctions of any performance thereunder or of operation of the Fab 7 Plant or
any part thereof or appeal or revocation of any Government Approval that is
applicable to the Project, or (B) that reasonably allege an obligation of the
Borrower in excess of US$10,000,000 (or the Singapore Dollar Equivalent
thereof), other than actions, suits, proceedings, claims or investigations that
are being contested in good faith by the Borrower and that (if adversely
determined) could not reasonably be expected to result in a Default or Event of
Default.
(ii) The Borrower is not in default under any order of any court,
arbitrator, administrative agency or other Governmental Authority, other than
defaults that could not reasonably be expected to result in a Default or Event
of Default.
(iii) Neither the business of the Borrower nor the Project has been
affected by any labor dispute or other force majeure event.
(k) Defaults. No Default or Event of Default has occurred and is
continuing. The Borrower is not in material default under any material
agreement to which it is a party.
(l) Information. All factual information, reports, financial
statements, exhibits and schedules furnished by or on behalf of the Borrower in
writing to any of the Financing Parties were true, complete and accurate in all
material respects on the date provided and were not on such date incomplete by
omitting to state any material fact required to be disclosed under any
Applicable Law or Environmental Requirement or necessary to make such
information, taken as a whole, not misleading in any material respect. To the
best of the Borrower's knowledge after due inquiry, no document, agreement or
information exists that has not been disclosed to Ex-Im Bank and the Lender in
writing that is material in the context of the Financing Documents or that has
the effect of varying any material provision of any Financing Document.
(m) Financial Statements. Each financial statement of the Borrower
delivered to the Financing Parties pursuant to Sections 6.01(d) and 10.01(o),
as applicable, is true, complete and correct in all material respects as of the
date of such statement, has been prepared in accordance with GAAP and fairly
presents the financial condition, results of operations and cash flows of the
Borrower as of the date thereof. Except as set forth in such financial
statements or disclosed to Ex-Im Bank and the Lender in writing, there are no
liabilities or obligations of any nature whatsoever (whether absolute, accrued,
contingent or otherwise, and whether or not due, but not including any
liabilities or obligations that would not be required to be disclosed in a
financial statement, including the footnotes thereto, pursuant to GAAP for the
period to which such financial statements relate) with respect to the Borrower
that could reasonably be expected to have a Material Adverse Effect. With
respect to each financial statement delivered pursuant to Sections 6.01(d) and
10.01(o), since the date of the Borrower's most recent financial statement, no
event, condition, occurrence or circumstance has existed or exists that
constitutes a Material Adverse Effect. The Borrower does not know of any
reasonable basis for the assertion against the Borrower or the Project of any
liability or obligation of any nature whatsoever (whether absolute, accrued,
contingent or otherwise and whether or not due) that is not fully reflected in
such financial statements or is an obligation set forth in or contemplated by
the Financing Documents that, either individually or in the aggregate, could
reasonably be expected to be material to the Borrower.
53
(n) Taxes.
(i) The Borrower has filed or caused to be filed all Tax and
information returns that are required to have been filed by it in any
jurisdiction and has paid in full all Taxes due and payable on such returns and
all other Taxes payable by it, to the extent that such Taxes have become due
and payable, except for filings and Taxes that are being contested by the
Borrower in good faith and for which the Borrower has established appropriate
reserves in accordance with GAAP.
(ii) All required stamp duties, registration fees, filing costs
and other charges in connection with the execution, delivery, filing,
recording, perfection, priority and/or admissibility in evidence of any
Financing Document payable as of the date that this representation and warranty
is given have been paid in full or an appropriate exemption therefrom has been
obtained.
(iii) Other than amounts that have been paid in full or will be
paid in full on the Initial Disbursement Date or as otherwise disclosed in
writing to, and approved by, Ex-Im Bank, no Taxes are required to be paid in
connection with the execution, delivery, filing, recording, perfection,
priority and/or admissibility in evidence of the Financing Documents or to
ensure the legality, validity, enforceability, perfection, priority or
admissibility in evidence of the Financing Documents.
(iv) Except for withholding Taxes set forth in
Schedule 9.01(n)(iv), the Borrower is not required to make any deduction or
withholding from any payment it may make to any Financing Party under any of
the Financing Documents.
(o) Immunity. Neither the Borrower nor its property has any, or is
entitled to claim or assert any, right of immunity on the grounds of
sovereignty or otherwise from jurisdiction of any court, suit, setoff, legal
proceedings generally, attachment before judgment, attachment in aid of
execution or other attachment or execution of judgment under the Applicable
Laws of Singapore, the United States or any other jurisdiction in which
property of the Borrower is located in connection with any action to enforce
this Agreement or any other Financing Document. The execution, delivery and
performance by the Borrower of each Financing Document to which it is a party
are private and commercial acts performed for private and commercial purposes.
(p) Legal Form. Subject to the exceptions set forth in the legal
opinions delivered pursuant to Section 6.01(e) and accepted in accordance with
the initial Disbursement under the Tranche A Guaranteed Credit, each Financing
Document is (i) in proper legal form under the Applicable Laws of Singapore,
and (ii) capable of enforcement in Singapore without further action on the part
of any Financing Party.
(q) Environmental Matters. There is no violation of any applicable
Environmental Law or Environmental Requirement that could reasonably be
expected to result in any material delay in the construction of the Fab 7 Plant
as contemplated by the then-applicable Ramp
54
Schedule and Ramp and Capital Costs Budget, or any material interference with
the commercial operation of the Fab 7 Plant. All material environmental reports,
investigations, studies, audits, reviews and analyses conducted by or in the
possession of the Borrower with respect to the Project have been provided to
Ex-Im Bank and the Lender. There is no pending proceeding or, to the best of the
Borrower's knowledge, investigation or inquiry by any Governmental Authority or
any non-governmental third party (other than those that are routine and ordinary
in nature and that could not reasonably be expected to adversely affect the
Project in any material respect) with respect to the presence or release of
Hazardous Materials relating to the Project.
(r) No Undisclosed Liabilities. As of the date of this Agreement, the
Borrower has no Indebtedness or other obligations or liabilities, contingent or
otherwise, of any nature whatsoever (whether absolute, accrued, contingent or
otherwise and whether or not due), other than (i) those incurred under or
permitted by the Financing Documents, and (ii) the Indebtedness set forth in
Schedule 9.01(r). The Borrower does not know of any reasonable basis for the
assertion against the Borrower of any material liability or material obligation
of any nature whatsoever (whether absolute, accrued, contingent or otherwise
and whether or not due) that is not fully reflected in the Indebtedness set
forth in Schedule 9.01(r) and the obligations incurred under or permitted by
the Financing Documents. On the Initial Disbursement Date and on each date
thereafter upon which this representation and warranty is restated, the
Borrower has no Indebtedness or other liabilities, contingent or otherwise,
other than those incurred under or permitted by the Financing Documents and
those set forth in Schedule 9.01(r).
(s) No Material Adverse Effect. As of the date hereof, no Material
Adverse Effect has occurred and is continuing; nor is there any fact or
circumstance known to the Borrower that could reasonably be expected to result
in a Material Adverse Effect.
(t) Corrupt Practices Laws. Without limiting any other provision of
this Section 9, the internal management and accounting practices and controls
of the Borrower are adequate to ensure compliance with, and the Borrower (and
its officers, directors, employees, agents or Subsidiaries) are otherwise in
full compliance with, Corrupt Practices Laws.
(u) ERISA and Foreign Benefit Plans.
(i) The Borrower is neither a "plan sponsor" (as defined in
Section 3(16)(B) of ERISA) of an ERISA Plan nor a participating employer in an
ERISA Plan and has incurred no material obligation in connection with an ERISA
Plan. The Borrower is not, and has not been within the preceding six (6)
years, an ERISA Affiliate of any Person. Neither the execution of this
Agreement nor the consummation of the transactions contemplated hereby will
involve a "prohibited transaction" within the meaning of Section 406 of ERISA
or Section 4975 of the Code that is not exempt under Section 406 of ERISA or
under Section 4975 of the Code.
(ii) All contributions required to be made by the Borrower or any
ERISA Affiliate with respect to a Foreign Benefit Plan have been made. Each
Foreign Benefit Plan has been maintained in substantial compliance with its
terms and with the requirements of any and all Applicable Laws and has been
maintained, where required, in good standing with applicable Governmental
Authorities, except in each instance where a failure to do so could not
reasonably
55
be expected to have a Material Adverse Effect. The Borrower has not incurred any
material obligation in connection with the termination, withdrawal from or
payment of benefits under any Foreign Benefit Plan.
(v) Investment Company Act. The Borrower has not taken any action that
could result in the Borrower's falling within the definition of, and the
Borrower is not, an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act.
(w) Principal Office. The Borrower's principal executive office is
located at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇. The
Borrower has not transacted any business under any name other than Chartered
Semiconductor Manufacturing Ltd. The Borrower has no executive offices in the
United States.
(x) Use of Proceeds. The Borrower has not used the proceeds of any
Disbursements for any purpose other than the payment of (i) the Financed
Portion of costs incurred on or after the Initial Eligibility Date for the
purchase of Goods and Services used (or to be used) in connection with the
design, development, construction, installation and completion of the Fab 7
Plant; and (ii) the Exposure Fee related to such Financed Portion.
(y) No Additional Fees. Other than as contemplated in the Borrower
Projections and the Ramp and Capital Costs Budget, the Borrower has not paid or
become obligated to pay any fee or commission to any broker, finder or
intermediary for or on account of arranging the financing of the transactions
contemplated by the Financing Documents.
(z) Condition of Systems. All material property, equipment and systems
of the Borrower are in good repair, working order and condition, ordinary wear
and tear excepted, and are in material compliance with (i) Applicable Law, and
(ii) all Government Approvals applicable to the Project.
(aa) Insurance. The Borrower has obtained and maintained, or caused to
be obtained and maintained, all insurance required in connection with the
Project from financially sound and reputable insurers and in amounts and with
coverages, deductibles and indemnities that are, in each case, consistent with
Prudent Industry Practice.
(bb) Casualty. No (i) Total Event of Loss, or (ii) as of the Initial
Disbursement Date, Casualty Event in excess of US$1,000,000 (in the case of the
Fab 7 Plant) or US$10,000,000 (in each other case) has occurred.
(cc) Solvency. As of the date hereof, on a pro forma basis after giving
effect to the transactions contemplated hereby, (i) the aggregate assets, at a
fair valuation, of the Borrower will exceed the aggregate Indebtedness of the
Borrower; (ii) the Borrower will not have incurred, does not intend to incur,
and does not believe that it will incur, Indebtedness beyond its ability to pay
such Indebtedness as such Indebtedness matures; and (iii) the Borrower will not
have (and has have no reason to believe that it will have thereafter)
unreasonably small capital for the conduct of its business.
56
(dd) Supply Contract(s). No Applicable Law of the Borrower's Country is
or will be violated by either any Supply Contract or the Borrower's performance
of its obligations under any Supply Contract.
(ee) Use of Goods and Services. The Goods and Services will be used for
lawful purposes.
(ff) Suspension and Debarment. The Borrower and each of its Principals (as
defined pursuant to 31 C.F.R. Section 19.105) individually have not within the
past three (3) years been (i) debarred, suspended, declared ineligible from
participating in, or voluntarily excluded from participation in, a "Covered
Transaction," (as defined pursuant to Executive Order 12549, 31 C.F.R. Part 19);
(ii) formally proposed for debarment, with a final determination still pending;
(iii) indicted, convicted or had a civil judgment rendered against it for any of
the offenses listed in the Debarment Regulations; or (iv) delinquent on any
substantial debts owed to the U.S. Government or its agencies or
instrumentalities as of the date hereof.
(gg) No Delinquency on Amounts Due to the United States. The Borrower
is not delinquent on any amounts due and owing to any Governmental Authority of
the United States as of the date of this Agreement.
(hh) IEEPA; Trading with the Enemy Act. None of the Borrower or any of
its officers, directors, employees, agents or Affiliates, acting on the
Borrower's behalf, has taken any action in connection with the Project that
violates IEEPA or the Trading with the Enemy Act.
(ii) Anti-Terrorism Laws. To the best of its knowledge, neither the
Borrower nor any of its Affiliates (i) is, or is controlled by, a Restricted
Party; (ii) has received funds or other property from a Restricted Party; or
(iii) is in breach of or is the subject of any action or investigation under
any Anti-Terrorism Law. The Borrower and each of its Subsidiaries have taken
reasonable measures to ensure compliance with the Anti-Terrorism Laws.
The representations and warranties of the Borrower set forth in this
Section 9.01 shall be deemed repeated as of the date of each Disbursement and
Utilization, as the case may be, with the same force and effect as if made on
such date, except for any such representations and warranties that by their
terms expressly relate only to an earlier date.
SECTION 10. AFFIRMATIVE COVENANTS
10.01 Affirmative Covenants of the Borrower. The Borrower covenants and
agrees that until all amounts owing under this Agreement and the Guaranteed
Note(s) have been paid in full, unless Ex-Im Bank shall have consented in
writing:
(a) Maintenance of Existence. The Borrower shall at all times preserve
and maintain (a) its legal existence under Applicable Laws of Singapore, (b)
its qualifications to do business in full force and effect in Singapore and
each other jurisdiction in which the character of the property owned or leased
by it or in which the transaction of its business as conducted
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or proposed to be conducted makes such qualification necessary, and (c) its
principal place of business and chief executive office in Singapore.
(b) Government Approvals. The Borrower shall obtain and at all times
maintain as and when required under Applicable Law and Environmental
Requirements, in full force and effect and, where applicable, renew, all
material Government Approvals necessary for the design, development,
construction, installation, completion and operation of the Fab 7 Plant.
(c) Compliance with Laws.
(i) The Borrower shall at all times, including, without
limitation, during any Project testing, (i) comply in all respects with
Environmental Requirements and Corrupt Practices Laws; and (ii) comply in all
material respects with all other Applicable Laws, including without limitation,
Anti-Terrorism Laws, IEEPA, the Trading with the Enemy Act and the foreign
assets control regulations of the United States Treasury Department (31 C.F.R.
Subtitle B. Chapter V, as amended) and any ruling issued thereunder and any
enabling legislation or Executive Order of the President of the United States
granting authority therefor, and, to the extent that the standards or
requirements imposed under any of the foregoing are not the same, the Borrower
shall comply with the strictest standard or requirement.
(ii) The Borrower shall ensure that none of its directors, members
of senior management, ultimate beneficial owners, or principal third parties
with whom the Borrower is engaged in business is a Person included in the list
of Specially Designated Nationals and Blocked Persons maintained by the Office
of Foreign Assets Control of the United States Department of Treasury, which
list is available at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/ enforcement/ofac/sdn/.
(d) Use of Proceeds. The Borrower shall use the proceeds of the Loans
exclusively for the payment of (i) the Financed Portion of costs incurred on or
after the Initial Eligibility Date for the purchase of Goods and Services used
or to be used in connection with the design, development, construction,
installation and completion of the Fab 7 Plant; and (ii) the Exposure Fee
related to such Financed Portion.
(e) Project Construction. Without limiting any other Section hereof,
the Borrower shall cause the design, development, construction, installation
and completion of the Fab 7 Plant to be carried out and completed with due
diligence and continuity, in a good and workmanlike manner and in accordance
with sound, generally accepted construction and engineering practices and
Applicable Law, and in Material Compliance with the Ramp Schedule and the Ramp
and Capital Costs Budget and without material deviation from the plans and
specifications set out in the agreements required for the design, development,
construction, installation, operation or maintenance of the Fab 7 Plant.
(f) Operation and Maintenance. The Borrower shall maintain, use and
operate the systems and equipment material to the operations of the Fab 7 Plant
(i) in good working order and condition and, from time to time, make or cause
to be made all appropriate and proper repairs, renewals, replacements,
enhancements, additions and all improvements thereto, all in accordance with
Prudent Industry Practice and Applicable Law; and (ii) in a manner that ensures
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that the conditions set forth in the warranty provisions provided by any
manufacturer, supplier, vendor or licensor of any equipment or process
incorporated into the Fab 7 Plant (whether in such manufacturer's, supplier's,
vendor's or licensor's operating manuals or otherwise) are not violated in any
manner that could reasonably be expected to be material to the Borrower.
(g) Insurance. The Borrower shall obtain and maintain, or shall cause
to be obtained and maintained, all insurance required in connection with the
Project from financially sound and reputable insurers and in amounts and with
coverages, deductibles and indemnities that are, in each case, consistent with
Prudent Industry Practice.
(h) Title; Rights to Property. The Borrower shall have and maintain
(i) all rights to use the parcels of land underlying its facilities (including
the Fab 7 Plant), and (ii) such other property rights (including all easements
and rights of ingress and egress) as are necessary in order to permit the
design, procurement, construction, installation, operation, maintenance,
development and ownership of the Fab 7 Plant in material conformity with the
requirements of the Financing Documents and the Ramp and Capital Costs Budget.
(i) Books, Records and Inspections; Accounting and Audit Matters.
(i) The Borrower shall maintain adequate management information
and cost control systems and shall keep proper books of record and account
adequate to reflect fairly the financial condition and results of operations of
the Borrower and all dealings and transactions related to its business in which
full, true and correct entries shall be made in conformity with GAAP and
Applicable Law, consistently applied. Without limiting the foregoing, the
Borrower shall implement and maintain all internal management and accounting
practices and controls necessary to ensure compliance with Corrupt Practices
Laws.
(ii) The Borrower shall permit, upon reasonable notice at
reasonable times, any Financing Party and any officers and designated
representatives of any such Person to visit and inspect any of the property of
the Borrower and the Project for any reasonable purposes (including the purpose
of carrying out an inspection or verification by any such Person to assess
whether the proceeds of the Guaranteed Credits have been used for the purchase
of Goods and Services, and to determine the actual or likely cost of Goods and
Services financed by the Guaranteed Credits), and to examine and make copies of
the books of record and account and documents of the Borrower and the Project
and discuss the affairs and accounts of the Borrower and the Project with, and
be advised as to the same by, the officers and personnel of the Borrower;
provided, however, that each such Person shall comply with the Borrower's
ordinary course safety procedures and not interfere with the operation of the
Fab 7 Plant.
(j) Taxes. The Borrower shall pay, or arrange for the payment prior to
delinquency of, all Taxes and all other charges (i) imposed on the Borrower or
its income, profits or any of its Property, or (ii) payable on or in connection
with the execution, issue, delivery, registration, notarization, perfection or
performance, or for the legality, validity or enforceability, of this
Agreement, the other Financing Documents and any other documents related to
this Agreement, except any Taxes or such other charges that are being contested
in good faith by the Borrower for which adequate cash reserves have been set
aside in accordance with GAAP, so long as such contest does not result in a
Material Adverse Effect. The Borrower shall promptly pay or cause
59
to be paid any valid, final judgment enforcing any such Taxes or other claims,
levies or liabilities of the Borrower related to such Taxes and shall cause the
same to be satisfied of record.
(k) Proper Legal Form. The Borrower shall take all action within its
control required or, in the reasonable opinion of each Financing Party,
advisable to ensure that each Financing Document (i) is in proper legal form
under Applicable Laws of Singapore and (if different) of the jurisdiction by
which it is governed, and (ii) is capable of enforcement in Singapore and such
other jurisdiction (if applicable) without further action on the part of any
Financing Party.
(l) Consultation and Cooperation. The Borrower (i) shall consult with
Ex-Im Bank regarding the Project as required by the Financing Documents and,
where not so required, pursuant to any request of Ex-Im Bank (acting reasonably
if no Default or Event of Default shall then have occurred and be continuing),
(ii) agrees to cooperate in all reasonable respects with the Facility Agent and
Ex-Im Bank and any consultant retained by either of them in the administration
of the Financing Documents, and (iii) shall ensure that the Facility Agent, Ex-
Im Bank and any such consultant will be provided in a timely manner with all
information reasonably requested and reasonably required by any such Person.
(m) Historical Debt Service Coverage Ratios. On each Repayment Date,
the Borrower shall calculate and submit to the Financing Parties the Historical
Debt Service Coverage Ratio. If, on any Repayment Date, such Historical Debt
Service Coverage Ratio is less than 1.3, then within thirty (30) days after
submission of such calculation to the Financing Parties, the relevant Debt
Service Reserve Requirement and the Debt Service Reserve Letter of Credit (or,
if applicable, the funded balance of the Debt Service Reserve Account) shall be
increased by an amount equal to the lesser of (i) the Maximum Adjusted Debt
Service Reserve Requirement, and (ii) the product of (A) the amount by which
EBITDA during the relevant two (2) fiscal quarter period would have to be
increased such that, on a pro forma basis, the Historical Debt Service Coverage
Ratio for the immediately preceding two (2) fiscal quarter period would have
been 1.3, and (B) a fraction, the numerator of which shall be the amount of
Debt Service payable in respect of the Guaranteed Credits for the forthcoming
two (2) fiscal quarters, and the denominator of which shall be the total
aggregate Debt Service payable by the Borrower in the forthcoming two (2)
fiscal quarters minus any lump sum principal payment or prepayment to be made
during the forthcoming two (2) fiscal quarters that retires in full the
outstanding principal obligations under any Indebtedness of the Borrower due in
a single installment at maturity (the "Adjusted Debt Service Reserve
Requirement"). If the Historical Debt Service Coverage Ratio calculated in
respect of any Repayment Date subsequent to any such adjustment to the Debt
Service Reserve Requirement is 1.3 or higher, the difference between the
Adjusted Debt Service Reserve Requirement and the otherwise applicable Debt
Service Reserve Requirement shall be released.
(n) Additional Documents. The Borrower shall execute and deliver, from
time to time as reasonably requested by any Financing Party at the Borrower's
expense, such other documents as shall be reasonably necessary or advisable or
that such Financing Party may reasonably request in connection with the rights
and remedies of the Financing Parties granted or provided for by the Financing
Documents, and to consummate the transactions contemplated therein.
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(o) Financial Statements. The Borrower shall deliver to the Financing
Parties the following:
(i) As soon as available, but in any event within ninety (90)
days after the end of each Fiscal Year, annual reports containing the
following:
(A) its audited balance sheet as at the end of such Fiscal
Year, with related statements of income and retained earnings, cash flow
statements and a statement of sources and uses of funds for such Fiscal Year,
in each case in customary form setting out comparative figures for the
preceding Fiscal Year; and
(B) a report thereon by the Independent Accountant, which
shall include a certification that all such statements (1) are in agreement
with the Borrower's books of account, (2) fairly present the Borrower's
financial condition and results of operations, and (3) are prepared in
accordance with GAAP.
(ii) Promptly after receipt by the Borrower, and in any event
within thirty (30) days after receipt thereof, any other annual or interim
reports given to the Borrower by the Independent Accountant other than ordinary
course non-substantive correspondence.
(iii) As soon as available, but in any event within sixty (60) days
after each of the first three fiscal quarters in each Fiscal Year, a complete
unaudited balance sheet of the Borrower as at the end of each such fiscal
quarter with related statements of income and retained earnings and statements
of cash flows for each such fiscal quarter and for the elapsed portion of the
Fiscal Year ended with the last day of each such fiscal quarter, prepared in
accordance with GAAP (other than in relation to the provision of footnotes) and
setting out comparative unaudited figures for the comparable periods in the
prior Fiscal Year, together with a certificate of an Authorized Officer of the
Borrower setting forth information regarding the Borrower's depreciation of
capital assets and amortization of its intangible assets and leasehold
improvements for such period, all of which shall be in a form acceptable to Ex-
Im Bank.
(iv) At the time of delivery of any financial statements pursuant
to this Section 10.01(o), a certificate of an Authorized Officer of the
Borrower substantially in the form of Exhibit D and otherwise satisfactory to
Ex-Im Bank, to the effect that, based upon such Authorized Officer's review of
the terms of the Financing Documents and the financial condition of the
Borrower during the relevant accounting period:
(A) such financial statements are true, complete and
correct in all material respects as of the date of such statements, have been
prepared in accordance with GAAP and fairly present in all material respects
the financial condition, results of operations and the cash flows of the
Borrower as at the end of and for the applicable period (subject, in the case
of quarterly financial statements, to normal year-end audit adjustments);
(B) other than as set forth in such financial statements or
otherwise previously disclosed in writing to Ex-Im Bank and the Facility Agent,
there are no liabilities or
61
obligations that could reasonably be expected to be material to the Borrower or
that could reasonably be expected to have a Material Adverse Effect; and
(C) no Default or Event of Default has occurred and is
continuing that has not been waived;
or, if any of the foregoing certifications cannot be made, an
explanation of the reasons that such certification cannot be made and what
remedial action the Borrower is taking or proposes to take in response thereto.
(v) Promptly after the Borrower's receipt thereof, a copy of any
material management letters or other material communications between the
Borrower and any accountant in relation to (A) its financial, accounting and
other systems, (B) its management or accounts, or (C) the Project.
(vi) Without duplicating any other information provided under this
Section 10.01(o), copies of each filing or registration made with the
Commission, promptly after the same is made.
(p) Notice of Certain Events and Circumstances. Promptly (but in any
event within five (5) Business Days (in the case of Section 10.01 (p)(i)) or
fourteen (14) Business Days (in each other case)) after any officer of the
Borrower obtains knowledge or becomes aware thereof (or reasonably should have
become aware thereof), the Borrower shall provide to the Financing Parties
notice of the occurrence or existence of:
(i) any Default or Event of Default, specifying the nature of
such Default or Event of Default and any action the Borrower is taking or
proposes to take to remedy the same;
(ii) any pending or threatened (in writing) litigation, action,
suit, proceeding, claim or dispute (A) that could reasonably be expected
individually or in the aggregate to result in a judgment exceeding
US$10,000,000; or (B) that is reasonably expected individually or in the
aggregate to have a Material Adverse Effect;
(iii) the expected Phase I Partial Completion Date;
(iv) the occurrence of Phase I Partial Completion;
(v) the occurrence of the Phase I Interim Completion Date;
(vi) the expected Phase I Completion Date;
(vii) the occurrence of Phase I Completion;
(viii)any event, circumstance or condition that has caused, or
could reasonably be expected to cause, the Borrower to be or to become out of
Material Compliance with the original Ramp and Capital Costs Budget delivered
pursuant to Section 6.01(g) or the Ramp Schedule;
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(ix) any change of any Authorized Officer of the Borrower having
primary responsibility for the administration of this Agreement and the
transactions contemplated hereunder (including the execution and delivery of
any certificates required hereunder), together with certified specimen
signatures of any new officer so appointed and, if requested by the Financing
Parties, reasonably satisfactory evidence of the authority of such new
Authorized Officer;
(x) to the best of the Borrower's knowledge, any breakdown,
stoppage or unscheduled suspension of the operations of the entire Fab 7 Plant
in excess of forty-eight (48) hours;
(xi) any Total Event of Loss;
(xii) (A) any Casualty Event affecting the Fab 7 Plant with
estimated or actual losses of a value in excess of US$1,000,000 (or the
Singapore Dollar Equivalent thereof), whether or not covered by insurance or
the Casualty Proceeds from which are not expected to be applied to the repair
or restoration of the Fab 7 Plant; and (B) any other Casualty Event with actual
or estimated losses in excess of US$10,000,000 (or the Singapore Dollar
Equivalent thereof);
(xiii)any proposed action by any applicable Governmental Authority
that has, or could reasonably be expected to have, a material adverse effect on
the ability of the Borrower to design, develop, construct, install, operate or
maintain the Fab 7 Plant; and
(xiv) any failure by ▇▇▇▇▇▇▇ to maintain Control of the Borrower or
a less than thirty percent (30%) ownership interest in the Borrower's Capital
Stock.
(q) Environmental Reporting.
(i) Within thirty (30) days after the end of each calendar year,
the Borrower shall provide to Ex-Im Bank a report on the Borrower's compliance
over the preceding year with Environmental Laws and Environmental Requirements.
Such report shall include a narrative summary of (A) any environmental
deficiencies identified by any Governmental Authority and any remedial action
taken with respect thereto, (B) any changes in applicable Environmental Laws or
Environmental Requirements and the potential effect on the Borrower therefrom,
and (C) any such other items as Ex-Im Bank may reasonably request.
(ii) Promptly (but in any event within three (3) Business Days)
after an officer of the Borrower obtains knowledge or becomes aware thereof
(or, with respect to the remedial plan referred to in clause (B)(3) below,
after a complete draft thereof is prepared), the Borrower shall provide to the
Financing Parties:
(A) notice of any pending or, to the best of the Borrower's
knowledge, material threatened Environmental Claim (1) against the Borrower or
any of its contractors or lessees arising in connection with their occupying,
or conducting operations on or at the Fab 7 Plant, or (2) otherwise relating to
the Borrower's assets; and
63
(B) (1) notice of any act or omission of the Borrower or
any other fact, circumstance, condition or occurrence at, on, or arising in any
way from the Project that results in any material non-compliance with or
material liability under any other Environmental Laws or any non-compliance or
liability under any Environmental Requirement, (2) a description of such non-
compliance or liability, and the Borrower's plan to assess the impact of such
non-compliance or liability and determine the remedial efforts required with
respect to such non-compliance or liability, (3) a copy of the Borrower's
remedial plan, and (4) as and when taken, notice of the steps implemented by
the Borrower with respect thereto.
(r) Construction Progress Reports. At least fourteen (14) Business
Days prior to the Initial Disbursement Date, the Borrower shall submit to the
Financing Parties the initial Construction Progress Report. Thereafter, within
thirty (30) days after the end of each fiscal quarter prior to Phase I
Completion, the Borrower shall deliver to the Financing Parties a Construction
Progress Report for such quarter, certified as true and correct by an
Authorized Officer of the Borrower.
(s) Annual Budget.
(i) The Borrower shall submit to the Financing Parties the Annual
Budget for the Fiscal Year that includes the Initial Disbursement Date at least
fourteen (14) Business Days prior to the Initial Disbursement Date. For each
Fiscal Year thereafter, as soon as it is available, but in any event at least
fifteen (15) days prior to the commencement of such Fiscal Year, the Borrower
shall submit to the Financing Parties the Annual Budget for such Fiscal Year
prepared by the Borrower. Each Annual Budget shall include projected operating
expenses, Capital Expenditures, financing costs and revenues for the Fiscal
Year covered thereby and shall be accompanied by statements of an Authorized
Officer of the Borrower certifying that, to the best of such Authorized
Officer's knowledge, after reasonable inquiry, such Annual Budget is a
reasonable estimate for such Fiscal Year. The Borrower shall from time to time
update or amend the Annual Budget upon the reasonable request of Ex-Im Bank.
(ii) In the event the Borrower in any Fiscal Year makes
expenditures that exceed one hundred ten percent (110%) of the aggregate amount
set forth in the Annual Budget for such Fiscal Year, the Borrower shall
promptly (and in any event within ninety (90) days after the end of such Fiscal
Year) provide each of the Financing Parties with a variance report identifying
(on a line item basis) such expenditures in excess of budget and providing a
reasonably detailed narrative description of the causes of such excesses and
the steps, if any, the Borrower proposes to take in connection therewith.
(t) Payment of Obligations. The Borrower shall pay, when due, all
material obligations.
(u) Debt Service Reserve Requirement.
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(i) The Borrower shall either fund the Debt Service Reserve
Account in the amount of, or maintain one or more Debt Service Reserve Letters
of Credit in a face amount from time to time equal to, the relevant Debt
Service Reserve Requirement, subject to Section 10.01(m).
(ii) If on any Repayment Date the undrawn amount of the Debt
Service Reserve Letter of Credit exceeds the relevant Debt Service Reserve
Requirement at such time, then at the written request of the Borrower, Ex-Im
Bank shall consent to the amendment or replacement of such Debt Service Reserve
Letter of Credit solely in order to reduce its stated amount by the amount of
such excess.
(iii) If on any Repayment Date the funded amount of the Debt
Service Reserve Account exceeds the relevant Debt Service Reserve Requirement
at such time (the amount of such excess, the "DSRA Surplus"), then at the
written request of the Borrower, Ex-Im Bank shall, after confirming receipt by
the Lender of all amounts due and payable on such Repayment Date, consent to
the withdrawal of such DSRA Surplus solely in order to reduce the funded amount
of the Debt Service Reserve Account by the amount of the DSRA Surplus.
(v) Notice of Suspension or Debarment. The Borrower shall, as promptly
as practicable but in any event within two (2) Business Days, provide written
notice to Ex-Im Bank (to the attention of the Asset Management Division) if at
any time it learns that (i) the representation set forth in Section 9.01(ff),
or (ii) the certification set forth in Part B, paragraph 4 of any Exporter's
Certificate was erroneous when made or has become erroneous by reason of
changed circumstances.
(w) Use of Goods and Services. The Goods and Services will be used for
lawful purposes, and the Borrower shall not sell the Goods and Services, or use
or permit the use of the Goods and Services in any country other than the
Borrower's Country.
(x) Other Acts. The Borrower shall from time to time do all things as
may be necessary or as reasonably requested by the Financing Parties (or any of
them) in order to effect the purposes of this Agreement and to protect the
interests of Ex-Im Bank in the Guaranteed Notes.
(y) Debt to Equity Ratio. Within thirty (30) days after each Repayment
Date, the Borrower shall calculate and submit to the Financing Parties the Debt
to Equity Ratio as of such Repayment Date. If the Debt to Equity Ratio as of
such Repayment Date is greater than 1.8, the Borrower shall, within ninety (90)
days after submission of such calculation to the Financing Parties, provide
evidence to the Financing Parties, in form and substance satisfactory to Ex-Im
Bank, that the Debt to Equity Ratio, as of the date that such evidence is
submitted to the Financing Parties, is not greater than 1.8.
(z) Pari Passu Ranking of Loans. Subject to any exceptions provided by
Applicable Law, the Borrower shall take all actions necessary to ensure that
the Loans rank at least pari passu in right of payment and (other than
obligations secured by Permitted Liens) in right of security with any other
obligation of the Borrower.
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SECTION 11. NEGATIVE COVENANTS
11.01 Negative Covenants of the Borrower. The Borrower covenants and
agrees that until all amounts owing under this Agreement and the Guaranteed
Notes have been paid in full, unless Ex-Im Bank shall have consented in writing:
(a) Restricted Payments. The Borrower shall not reduce its capital or
make any payments (directly or indirectly, by offset or otherwise) to any of
its shareholders, or authorize or make any other distribution, payment or
delivery of property or cash to any such Person, or redeem, retire, purchase or
otherwise acquire, directly or indirectly, for consideration, any shares of any
class of its Capital Stock now or hereafter outstanding (or any options or
warrants issued by the Borrower with respect to its Capital Stock) or set aside
any funds for any of the foregoing purposes (each of the foregoing events being
a "Restricted Payment"), or enter into any profit sharing or royalty
arrangement that would have the effect of a Restricted Payment, (i) prior to
the Phase I Completion Date, (ii) if after giving effect to such Restricted
Payment the Corporate Cash Balance would be less than US$500,000,000, or (iii)
in contravention of Applicable Law. Nothing in this Section 11.01(a) shall
restrict the Borrower's ability to enter into and perform arm's-length
commercial transactions with shareholders in the ordinary course of business.
(b) Immunity. In any proceedings in Singapore or elsewhere, the
Borrower shall not claim or assert for itself, its property or the Project any
immunity (including claims of sovereign immunity) as against any Financing
Party from suit, execution, attachment or other legal process, whether through
service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise.
(c) Liens. The Borrower shall not, and shall not agree to, and shall
not permit any of its Subsidiaries to, or to agree to, directly or indirectly,
create, incur, assume, suffer to exist or otherwise permit at any time any Lien
now or hereafter upon or with respect to any of its Property, other than
Permitted Liens.
(d) Investments. The Borrower shall not directly or indirectly (i)
make or permit to remain outstanding any Investments other than Permitted
Investments, or (ii) make any advances, Guarantees or loans other than as
permitted under the Financing Documents.
(e) Indebtedness. The Borrower shall not, and shall not agree to, and
shall not permit any of its Subsidiaries to, or to agree to, directly or
indirectly, contract, create, incur, assume, suffer to exist, Guarantee or
otherwise be or become liable with respect to any Indebtedness other than
Permitted Indebtedness.
(f) Merger; Sale of Assets; Dissolution. The Borrower shall not, and
shall not agree, directly or indirectly, to (i) enter into any transaction of
merger or consolidation, (ii) wind up, liquidate, or dissolve itself, or file
any petition or pass a resolution seeking the same, (iii) commence any
voluntary Insolvency Proceeding, (iv) acquire Property or assets outside of the
ordinary course of its business (it being understood that (without limiting any
other provisions of this Agreement) Investments consisting of strategic
acquisitions, joint ventures or partnerships, in each case related to the
Borrower's business, shall be deemed to be within the
66
ordinary course of the Borrower's business), or (v) convey, sell, assign, lease
(as lessor), transfer, pledge or otherwise dispose of any Property or assets
other than sales of inventory and product and leases of or other agreements
(including agreements relating to any prospective expansion of the Fab 7 Plant
pursuant to a joint venture or otherwise) relating to unused or underutilized
production capacity in the ordinary course of business and sales or leases of
any material portion of its Property or assets that are (A) uneconomic or
obsolete, (B) no longer used or useful or necessary in connection with the
operation of the Borrower's business, or (C) at the end of their useful life and
that are replaced by other Property or assets of equal value and utility as at
the beginning of its useful life; provided, however, that in each case the
Borrower shall have received consideration determined on an arm's-length basis
(or if no consideration was given, such determination was made on an
arm's-length basis).
(g) Nature of Business. The Borrower shall not, directly or
indirectly, (i) enter into any transactions except in the ordinary course of
business and on an arm's-length basis, or (ii) take any action, whether by
acquisition or otherwise, that would constitute or result in any material
alteration to the nature of its business or the nature, size or scope of the
Project.
(h) Corporate Documents; Capital Structure. The Borrower shall not
(i) amend or modify its Memorandum and Articles of Association, except for any
amendment or modification (A) necessary to cure an ambiguity, inconsistency,
formal defect or omission therein, for the purposes of increasing its capital
or for immaterial changes reasonably required to comply with mandatory
requirements of Applicable Law, and (B) that does not adversely affect Ex-Im
Bank or the Lender; (ii) change its legal form; or (iii) without providing Ex-
Im Bank with ninety (90) days' prior written notice thereof, change its name,
Fiscal Year, principal place of business or chief executive office.
(i) Use of Sites or Project. The Borrower shall not use, maintain,
operate or occupy, or allow the use, maintenance, operation or occupancy of,
any portion of the Borrower's facilities and the sites where these facilities
are located for any purpose, or in any manner, contrary to Prudent Industry
Practice or, without limiting the foregoing, for any purpose or in any manner
(i) that could reasonably be expected to have a Material Adverse Effect, or
(ii) other than for the intended purpose thereof.
(j) Hazardous Materials. The Borrower shall not use, store, hold or
release or permit the use, storage, holding or release of, any Hazardous
Materials at the Fab 7 Plant in violation of any Applicable Law or
Environmental Requirement.
(k) ERISA. Except as required by Applicable Law, other than with
respect to any Foreign Benefit Plans maintained as of the date of this
Agreement, the Borrower shall not establish, maintain, contribute to or become
obligated to contribute to any ERISA Plan or any Foreign Benefit Plan or suffer
or permit any ERISA Affiliate to do so. In the event the Borrower or any ERISA
Affiliate, in compliance with legal requirements, becomes obligated to
establish, maintain, contribute to or become obligated to contribute to any
ERISA Plan or Foreign Benefit Plan, the Borrower shall (and shall cause each
ERISA Affiliate to) fully comply with all of its and their respective
obligations with respect thereto, including all applicable funding obligations.
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(l) Hedging. The Borrower shall not enter into any interest rate,
currency or commodity price-rise hedging arrangement or forward contract that
contravenes the Hedging Policies.
(m) Investment Company Act. The Borrower shall not take (or permit any
Subsidiary to take) any action that could result in the Borrower being required
to register as an "investment company" or being a company "controlled" by a
company required to register as an "investment company" under and within the
definitions set forth in the Investment Company Act.
(n) DRAM Chips. The Borrower shall not manufacture or sell any dynamic
random access memory wafers or chips produced by the Fab 7 Plant.
(o) Accounting Changes. The Borrower shall not (i) change its Fiscal
Year without filing with the Commission a reconciliation of accounts following
such change, which reconciliation of accounts shall not result in any changes
to any of the financial ratios provided for herein, or make any other
significant change in accounting treatment and reporting practices except as
required or permitted by GAAP; or (ii) replace the Independent Accountant with
any accountant other than a member of the "Big Four" accounting firms without
the prior written consent of Ex-Im Bank.
(p) Suspension and Debarment, etc. The Borrower shall not knowingly
enter into any transactions in connection with Goods and Services with any
Person who is debarred, suspended, declared ineligible or voluntarily excluded
from participation in procurement or non-procurement transactions with any
United States federal government department or agency pursuant to any of the
Debarment Regulations.
(q) Acquisition List and Supply Contract. The Borrower shall not amend
or alter the Acquisition List or the Supply Contracts or assign any rights
under the Supply Contracts without the prior written consent of Ex-Im Bank.
(r) Transactions with Affiliates. The Borrower will not (and will
ensure that its Subsidiaries will not) enter into any transactions with any
Affiliate other than on arms-length terms.
SECTION 12. CANCELLATION, SUSPENSION AND EVENTS OF DEFAULT
12.01 Cancellation by the Borrower.
(a) The Borrower may cancel at any time all or any part of the
undisbursed and uncancelled amount of the Guaranteed Credits; provided that
thirty (30) days' prior written notice is given to the Lender, the Facility
Agent and Ex-Im Bank; and provided, further, that:
(i) in the case of any termination in full of the undrawn
Commitments:
(A) the initial Disbursement under the Tranche A Guaranteed
Credit shall not have occurred; or
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(B) the Phase I Completion Date shall have occurred; or
(C) contemporaneously with such termination in full the
Borrower shall have paid or repaid all of the Guaranteed Credits then
outstanding, together with all accrued and unpaid interest thereon and all
other obligations accrued hereunder; and
(ii) in connection with any other reduction or termination of the
undrawn Commitments:
(A) the Borrower shall give at least thirty (30) days'
prior written notice to Ex-Im Bank, the Lender and the Facility Agent of each
such reduction or termination;
(B) Ex-Im Bank and the Lender shall agree on the
proportionate reduction to be attributed to each Credit Facility as a result of
such reduction or termination;
(C) each partial reduction shall be in an aggregate amount
at least equal to US$2,000,000;
(D) such reduction or termination will not cause a Default,
Event of Default or other breach or default under any Financing Document;
(E) the Borrower shall have paid all interest, fees,
expenses and other amounts then due under any Financing Document; and
(F) the Borrower shall have delivered to the Financing
Parties a certificate from an Authorized Officer of the Borrower (1)
identifying all Project Costs required to be incurred in order to achieve Phase
I Completion on or before the Date Certain (assuming that all budgeted
contingency amounts in the Ramp and Capital Costs Budget shall be fully
expended) and certifying that, after giving effect to such reduction, the
Borrower will have Total Funding Available in an amount sufficient to design,
procure, construct, install, operate, maintain, develop and own the Fab 7 Plant
without any material delay that could have been avoided with funds available
under the Commitments proposed to be cancelled, and in full compliance with the
Financing Documents, (2) attaching evidence reasonably satisfactory to Ex-Im
Bank in support of such certification, and (3) stating that, after giving
effect to such reduction and use of Total Funding Available, no Default or
Event of Default will occur as a result of the relevant commitment reduction.
(b) In the event of a cancellation of all or part of either Guaranteed
Credit by the Borrower, the Borrower shall pay (i) to Ex-Im Bank, on or before
the proposed date of cancellation, all Guarantee Commitment Fees on the
cancelled portion of the relevant Guaranteed Credit accrued and unpaid under
Section 7.01 and all other amounts due and payable under this Agreement as of
the proposed date of cancellation, and (ii) to the Lender all commitment fees
due and payable and all other amounts due and payable under this Agreement and
the Fee Letter as of the proposed date of cancellation.
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12.02 Suspension and Cancellation.
(a) (i) In the event that at any time the right of the Borrower to
request Disbursements in accordance with this Agreement shall be suspended
hereunder in accordance with this Agreement (other than any cancellation made
upon the voluntary request of the Borrower or in respect of the Guaranteed
Credits), then the Lender, by written notice to the Borrower and Ex-Im Bank
may, following each suspension, suspend further Disbursements of the Guaranteed
Credits until the Lender is satisfied that the cause of such suspension has
been removed; and (ii) in the event of a cancellation of all or part of the
Guaranteed Credits, the Borrower shall pay (A) to Ex-Im Bank all Guarantee
Commitment Fees accrued and unpaid under Section 7.01 and all other amounts due
and payable under this Agreement as of such date, and (B) to the Lender any
fees accrued and unpaid under Section 7.01 and all other amounts due and
payable under this Agreement and the Fee Letter as of such date.
(b) The terms of this Section 12.02 shall be in addition to and not in
limitation of any other rights of Ex-Im Bank and the Lender under this
Agreement or any other Financing Document.
12.03 Events of Default and Remedies.
(a) Events of Default. Each of the specified events or conditions set
forth in clauses (i) through (ix) below shall constitute an event of default
(an "Event of Default"):
(i) Payments. Any failure by the Borrower to pay at the place
and in the currency at which or in which it is expressed to be payable any
principal of either Guaranteed Credit or any interest on either Guaranteed
Credit when due and payable (whether by scheduled maturity, required prepayment
(subject to Section 5.03(b)), by acceleration or otherwise) or any fee payable
under any this Agreement or any other amounts owing hereunder or under any
other Financing Document.
(ii) Representations. Any representation or warranty made by the
Borrower herein or in any other Financing Document, or any representation,
warranty or statement in any certificate, financial statement or other document
furnished to Ex-Im Bank or the Lender by or on behalf of the Borrower hereunder
or under any other Financing Document, shall prove to have been false or
misleading in any material respect as of the time made, deemed made, confirmed
or furnished and if the condition that renders such representation or warranty
false or misleading is capable of being rectified, such condition is not
rectified for a period of thirty (30) days after the date on which an
Authorized Officer of the Borrower first became aware of such misrepresentation
(provided that such thirty (30)-day grace period shall not apply to any willful
misrepresentation made or deemed to be made by the Borrower herein or in any
other Financing Document).
(iii) Covenants.
(A) The Borrower shall default in the due performance or
observance by it of any term, covenant or agreement contained in Section
10.01(a), 10.01(c), 10.01(d),
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10.01(p)(i), 10.01(v), 10.01(z), 11.01(a), 11.01(c), 11.01(d), 11.01(e),
11.01(f), 11.01(j), 11.01(n), 11.01(p), or 11.01(q).
(B) The Borrower shall default in the due performance or
observance by it of any term, covenant or agreement contained herein or in any
other Financing Document (except as provided in Sections 12.03(a)(i) and
12.03(a)(iii)(A)) and, if capable of being cured, such default shall continue
unremedied for a period of thirty (30) days after the earlier of (1) the date
on which a responsible officer of the Borrower knows or should reasonably have
known of such failure; and (2) the date on which written notice thereof shall
have been received by the Borrower from the Lender or Ex-Im Bank unless, if (x)
any such default is not capable of being cured by the payment of money or with
diligent effort within such thirty (30)-day period, (y) such default is, in the
reasonable judgment of Ex-Im Bank, capable of being cured and the Borrower is
diligently prosecuting such cure, and (z) an extension of such period to permit
a cure would not reasonably be expected to have a Material Adverse Effect,
then, such circumstance shall not give rise to an Event of Default under this
Section until the earlier of (I) the sixtieth (60th) day after the occurrence
thereof, and (II) the date on which a Material Adverse Effect shall have
occurred.
(iv) Default in Respect of Other Indebtedness. Without limiting
Section 12.03(a)(i), the Borrower shall default (beyond any applicable grace
period therefor) in the payment of (A) principal, interest or other amounts due
under any other agreement evidencing, securing or creating any Indebtedness of
the Borrower in excess of US$10,000,000 (or the Singapore Dollar Equivalent
thereof); or (B) any other obligation under any such agreement and, as a
consequence thereof, the outstanding principal amount of the Indebtedness
thereunder becomes (or is capable of being declared) due and payable prior to
its stated maturity.
(v) Environmental Claim. Without limiting any other Event of
Default hereunder, (A) any administrative, regulatory or judicial action, suit
or proceeding under or relating to any Environmental Law or Environmental
Requirement or asserting any Environmental Claim shall be asserted or
instituted, or (B) any order, judgment or decree shall be issued relating to an
Environmental Claim, Environmental Law, Environmental Requirement or any
governmental authorization issued under any Environmental Law or Environmental
Requirement that, in the case of either clause (A) or (B) of this Section
12.03(a)(v), could reasonably be expected to result in a Material Adverse
Effect on the Project or the Borrower.
(vi) Invalidity and Repudiation, Etc. Any Financing Document (or
any material provision of any such document) at any time for any reason:
(A) shall be or shall become invalid, illegal or
unenforceable or shall fail to be in full force and effect, or shall be
repudiated, denied or disavowed by the obligor thereunder;
(B) shall be suspended, revoked or terminated (other than
upon expiration in accordance with its terms) or the Borrower shall so assert;
or
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(C) shall be assigned or otherwise transferred by any party
thereto, other than as explicitly contemplated herein.
(vii) Bankruptcy; Liquidation.
(A) The Borrower shall (1) commence any voluntary
Insolvency Proceeding; (2) fail to controvert in a timely and appropriate
manner, or acquiesce in writing to, any petition filed against it in any
involuntary Insolvency Proceeding; (3) apply for, consent to or fail to contest
in a timely and appropriate manner, the appointment of, or the taking of
possession by, a receiver, custodian, trustee, liquidator, assignee,
sequestrator or the like of itself or of all or a substantial part of its
assets (taken as a whole), domestic or foreign; (4) admit in writing its
inability to pay its debts as such debts become due; (5) make an assignment for
the benefit of its creditors generally; (6) take any corporate action for the
purpose of effecting any of the foregoing; (7) be generally unable to pay its
debts as such debts become due; or (8) otherwise become insolvent;
(B) An involuntary Insolvency Proceeding shall be commenced
against the Borrower and shall continue undismissed for a period of sixty (60)
or more days (or such shorter period of time as the Borrower has pursuant to
Applicable Law to cause the dismissal of such case or proceeding or stay the
effectiveness of such order, judgment or decree);
(C) (1) The Borrower shall be terminated or dissolved (as a
matter of Applicable Law or otherwise); or (2) proceedings shall be commenced
by any Person seeking the termination or dissolution of the Borrower and
(x) such proceeding shall continue undismissed, or (y) an order, judgment or
decree approving or ordering any of the foregoing shall be entered and continue
unstayed and in effect in each case for a period of sixty (60) or more days (or
such shorter period of time as the Borrower has pursuant to Applicable Law to
cause the dismissal of such case or proceeding or stay the effectiveness of
such order, judgment or decree); or
(D) There shall occur in relation to the Borrower under any
Applicable Law in any country or territory in which the Borrower carries on
business, or to the jurisdiction of whose courts any part of the Borrower's
property is subject, any other event that would have under the same conditions
an effect analogous to any of those described in Section 12.03(a)(vii)(A), (B)
or (C).
(viii) Material Adverse Effect. At any time, one or more events,
conditions, circumstances or occurrences shall exist or shall have occurred
that have had, or could reasonably be expected to have, a Material Adverse
Effect.
(ix) Judgments.
(A) One or more unpaid or unsatisfied judgments, decrees or
orders shall be entered against the Borrower and such judgments, decrees or
orders shall not be vacated, discharged or stayed or bonded pending appeal for
any period of sixty (60) consecutive days, and the aggregate amount of such
judgments, decrees or orders shall exceed US$10,000,000 (or the Singapore
Dollar Equivalent thereof).
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(B) Notwithstanding paragraph (A) above, one (1) or more
judgments, decrees or orders shall be entered against the Borrower and such
judgments, decrees or orders shall be entered in the form of an injunction or
similar form of relief requiring suspension or abandonment of construction or
operation of the Fab 7 Plant (or any material portion thereof) for a period of
at least thirty (30) days on grounds of violation of an Environmental Law or
other Applicable Law, and such judgments, decrees or orders shall not be
vacated, discharged or stayed or bonded pending appeal.
(b) Remedies. Upon the occurrence and during the continuance of an
Event of Default that has not been waived or remedied in accordance with the
Financing Documents (i) Ex-Im Bank may exercise any or all rights and remedies
at law or in equity (in any combination or order that it may elect), including,
without prejudice to the other rights and remedies of any of the other
Financing Parties, the following:
(A) to refuse, and in such event the Lender shall not be
obligated, to make any Disbursements, or to suspend or terminate the
Commitments, and upon termination the Commitments shall be reduced to zero (0)
and neither Ex-Im Bank nor the Lender will have any further obligations
hereunder; provided, however, notwithstanding anything to the contrary in any
Financing Document, in the event of an Event of Default occurring under
Section 12.03(a)(viii) with respect to the Borrower, all Commitments shall be
immediately terminated without further action by the Financing Parties (or any
of them);
(B) to declare, in a written notice to the Borrower, that
all sums of accrued and outstanding principal and accrued but unpaid interest
remaining under this Agreement, together with all unpaid fees, costs and
charges due hereunder or under any other Financing Document, are immediately
due and payable, whereupon such sums shall become immediately due and payable
together with interest on such total amount at the Default Rate; provided,
however, notwithstanding anything to the contrary in any Financing Document, in
the event of an Event of Default occurring under Section 12.03(a)(vii) with
respect to the Borrower, all such amounts shall become immediately due and
payable without further action by the Financing Parties (or any of them);
(C) to draw the then-remaining full face amount of the Debt
Service Reserve Letter of Credit or to instruct the Security Trustee to
withdraw any funds on deposit in the Debt Service Reserve Account and, in
either case, to apply the proceeds thereof to the satisfaction of the
Borrower's obligations and liabilities under the Financing Documents; and
(D) to take any other action, exercise any other right or
pursue any other remedy available to it under any of the Financing Documents or
under any Applicable Law; and
(ii) the Lender and the other Financing Parties may take any other
action, exercise any other right or pursue any other remedy available to them
under any of the Financing Documents or under any Applicable Law.
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(c) The terms of this Section 12.03 shall be in addition to and not in
limitation of any other rights of Ex-Im Bank, the Lender and the Facility Agent
under this Agreement or any other Financing Document.
SECTION 13. NET PAYMENTS; COMPENSATION; BREAK FUNDING; PREPAYMENT PREMIUM
13.01 Net Payments; Etc.
(a) Any and all payments to any Financing Party by the Borrower
hereunder or under any other Financing Document shall be made free and clear
of, and without deduction for, any and all taxes, levies, imposts, deductions,
charges or withholdings imposed and all liabilities with respect thereto, if
any, on or in respect hereunder or under any Financing Document or any
Guaranteed Credit, the execution, registration, enforcement, notarization or
other formalization of any thereof, and any payments of principal, interest,
charges, fees, commissions or other amounts made on, under or in respect
thereof, excluding taxes imposed on, or measured by the net income or capital
of, any Financing Party by any jurisdiction or any political subdivision or
taxing authority thereof or therein as a result of a permanent establishment or
franchise of such Financing Party in such jurisdiction or political subdivision
or the privilege of doing business therein (unless such establishment,
franchise, or privilege is solely attributable to the enforcement of any rights
hereunder or under any other Financing Document as a consequence of a Default
or Event of Default) (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Covered
Taxes"). The Borrower shall pay any and all Covered Taxes for its own account
prior to the date on which penalties attach thereto. If the Borrower shall be
required by Applicable Law to withhold or deduct any Covered Taxes imposed by
any jurisdiction or any political subdivision from or in respect of any sum
payable hereunder or under any other Financing Document to any Financing Party,
(i) the sum payable shall be increased as may be necessary so that, after
making all required deductions (including deductions applicable to additional
sums payable under this Section 13.01), such Financing Party receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
the Borrower shall make such deductions, and (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with Applicable Law. In addition, the Borrower agrees to pay any
present or future stamp, recording or documentary taxes and any other excise or
property taxes, charges or similar levies that arise under the laws of any
jurisdiction from any payment made hereunder or under any other Financing
Document or from the execution or delivery or otherwise with respect to this
Agreement or any other Financing Document (hereinafter referred to as "Other
Taxes").
(b) The Borrower shall indemnify each Financing Party for the full
amount of Covered Taxes and Other Taxes (including any Covered Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this Section 13.01
paid by any Financing Party or any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto), whether or not such
Covered Taxes or Other Taxes were correctly or legally asserted by the relevant
authority. A certificate as to the amount of such payment or liability
delivered to the Borrower by a Financing Party shall be conclusive absent
manifest error. Each Financing Party shall give notice to the Borrower of the
assertion of any claim against such Financing Party
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relating to such Financing Party's Covered Taxes or Other Taxes as promptly as
possible (and in any event within ninety (90) days) after receipt of formal
written notice of such assertion; provided, however, any failure to notify the
Borrower promptly of such assertion shall not relieve the Borrower of its
obligation under this Section 13.01. Within fifteen (15) Business Days of
receipt of any such notice, the Borrower shall either (i) advise such Financing
Party that it intends to pay such Covered Taxes or Other Taxes pursuant to this
Section 13.01(b), in which case it shall promptly (and contemporaneously with
the delivery of such advice) pay such amounts; or (ii) provided that it
presents evidence satisfactory to the Lender that it has set aside and will
maintain sufficient reserves to cover any contested tax liability, advise such
Financing Party that it intends to contest in good faith such Covered Taxes or
Other Taxes, in which case it shall promptly commence such good faith contest.
Payments by the Borrower pursuant to this indemnification shall be made within
ten (10) Business Days after the date such Financing Party makes written demand
therefor (submitted through the Facility Agent), which demand shall be
accompanied by a certificate describing in reasonable detail the basis thereof.
If the Borrower shall have contested in good faith any such Covered Taxes or
Other Taxes and such Covered Taxes or Other Taxes are ultimately determined to
be payable by such Financing Party in a final judicial proceeding or otherwise,
the Borrower shall indemnify such Financing Party for such Covered Taxes and
Other Taxes and for any other liability (including penalties, interest and
expenses) arising therefrom or with respect thereto.
(c) Within ten (10) days after the date of any payment of Covered Taxes
or other Taxes by the Borrower, the Borrower shall furnish to each affected
Financing Party the original or a certified copy of a receipt evidencing
payment thereof and the Borrower shall promptly furnish to each affected
Financing Party any other information, documents and receipts that such
Financing Party may from time to time reasonably require to establish to its
satisfaction that full and timely payment has been made of all Covered Taxes or
Other Taxes required to be paid under this Section 13.01. The Borrower shall
reimburse each such Financing Party in full for all reasonable losses and
expenses sustained by such Financing Party as a result of any failure by the
Borrower to so furnish such copy of such receipt.
13.02 Increased Costs.
(a) If, after the date of this Agreement, any Change of Law with
respect to any Financing Party or any participant in a Guaranteed Note held by
the Lender:
(i) shall subject such Financing Party or participant to any Tax,
duty or other charge with respect to any Guaranteed Credit or any Commitment,
or shall change the basis of taxation of payments by the Borrower to such
Financing Party or participant on any Guaranteed Credit or with respect to any
Commitment (except for Covered Taxes, Other Taxes or changes in taxes imposed
on, or measured by the net income or capital of, such Financing Party or
participant by any jurisdiction or any political subdivision or taxing
authority thereof or therein as a result of a permanent establishment or
franchise of such Financing Party or participant in such jurisdiction or
political subdivision or the privilege of doing business therein (unless such
establishment, franchise, or privilege is solely attributable to the
enforcement of any rights hereunder or under any other Financing Document as a
consequence of a Default or Event of Default));
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(ii) shall impose, modify or hold applicable any reserve, special
deposit, deposit insurance or similar requirement (other than any such reserve,
special deposit, deposit insurance or similar requirement that is treated as a
Capital Adequacy Requirement) against assets held by, deposits or other
liabilities in or for the account of, advances or loans by, or any other
acquisition of funds by such Financing Party or participant for any Guaranteed
Credit or any Commitment; or
(iii) shall impose on such Financing Party or participant any other
condition affecting any Guaranteed Credit or Commitment,
and the effect of any of the foregoing is to increase the cost to such
Financing Party or participant of making, issuing, creating, renewing,
participating in or maintaining any such Guaranteed Credit or Commitment or is
to reduce any amount receivable by such Financing Party or participant
hereunder, or any payment to a Financing Party or participant calculated by
reference to the Borrower's payments, or a Financing Party's or participant's
effective rate of return, then the Borrower shall, from time to time, upon
written demand by such Financing Party on its own behalf or on behalf of a
participant (which demand shall be accompanied by a certificate of such party
providing in reasonable detail a description of the basis and amount of such
request for compensation, which description shall in no event contain any
disclosure of any matters deemed by such party in good faith to be confidential
or proprietary), pay to such Financing Party, on its own behalf or on behalf of
a participant, additional amounts sufficient to reimburse such party for such
increased costs or to compensate such Financing Party or participant for such
reduced amounts. A certificate of a Financing Party setting forth the amount
or amounts necessary to compensate such Financing Party shall be delivered to
the Borrower and shall be conclusive absent manifest error.
(b) Failure or delay on the part of any Financing Party to demand
compensation pursuant to this Section 13.02 on its own behalf or on behalf of a
participant shall not constitute a waiver of such Financing Party's right to
demand such compensation; provided that the Borrower shall not be required to
compensate a Financing Party or participant pursuant to this Section 13.02 for
any increased costs or reductions incurred more than two hundred seventy (270)
days prior to the date that such Financing Party notifies the Borrower of the
Change in Law giving rise to such increased costs or reductions and of such
Financing Party's intention to claim compensation therefor; provided, further,
that if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the two hundred seventy (270) day period referred to above
shall be extended to include the period of retroactive effect thereof.
13.03 Capital Requirements. If any Financing Party or any participant
determines that (a) any Change of Law affects the Capital Adequacy Requirement
required or expected to be maintained by such Financing Party or participant
(or the lending office of such Financing Party or participant) or any Person
Controlling such Financing Party or participant, and (b) the amount of capital
maintained by such Financing Party, participant or Person that is attributable
to or based upon the Guaranteed Credits, the Commitments or this Agreement must
be increased as a result of such Capital Adequacy Requirement (taking into
account such Financing Party's, such participant's or such Person's policies
with respect to capital adequacy), the Borrower shall pay to such Financing
Party, participant or Person, upon written demand of such Financing Party on
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its behalf or on behalf of a participant (which demand shall be accompanied by
a certificate of such Financing Party or participant describing in reasonable
detail the basis of such increase), such amounts as such Financing Party,
participant or Person shall determine are necessary to compensate such
Financing Party, participant or Person for the increased costs to such
Financing Party, participant or Person of such increased capital. A certificate
of a Financing Party setting forth the amount or amounts necessary to
compensate such Financing Party or participant, as the case may be, shall be
delivered to the Borrower and shall be conclusive absent manifest error.
13.04 Mitigation Obligations.
(a) If any Financing Party requests compensation under Section 13.02
(on its own behalf or on behalf of a participant) or Section 13.03, or if the
Borrower is required to pay any additional amount to the Lender or any
Governmental Authority for the account of the Lender (or for the account of a
participant) pursuant to Section 13.01, then the Lender shall use reasonable
efforts (and shall instruct any participant) to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates if, in
the judgment of the Lender or participant, such designation or assignment (i)
would eliminate or reduce amounts payable pursuant to Section 13.01 or 13.02,
as the case may be, in the future, and (ii) would not subject the Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to the
Lender. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by the Lender in connection with any such designation or assignment.
(b) If the Lender requests compensation under Section 13.02 (for its
own account or the account of a participant), or if the Borrower is required to
pay any additional amount to the Lender or any Governmental Authority for the
account of the Lender or participant pursuant to Section 13.01, or if the
Lender defaults in its obligation to fund Loans hereunder, then the Borrower
may, at its sole expense and effort, upon notice to the Lender and the Facility
Agent, require the Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section 16.04),
all its interest, rights and obligations under this Agreement to an assignee
that shall assume such obligations; provided that (i) the Borrower shall have
received the prior written consent of the Lender, which consent shall not
unreasonably be withheld; (ii) the Lender shall have received payment of an
amount equal to the outstanding principal of its Guaranteed Notes, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts); and
(iii) in the case of any such assignment resulting from a claim for
compensation under Section 13.02 or payments required to be made pursuant to
Section 13.01, such assignment will result in a reduction in such compensation
or payments. The Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by the Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
13.05 Break Funding Costs. If the Borrower shall (i) make a payment
(whether by way of prepayment, the occurrence of an Event of Default or
otherwise) of any amount in respect of a Guaranteed Note other than on an
Interest Payment Date or Repayment Date, as the case may be, or (ii) fail to
borrow any Loan on the date specified in any Notice of Borrowing, the Borrower
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hereby unconditionally undertakes and agrees to pay to the Lender, on demand,
an amount equal to the amount (if any) by which
(a) the additional interest which would have been payable to the Lender
on the amount paid had it been paid on the relevant Interest Payment Date or
Repayment Date, as the case may be, exceeds
(b) the amount of interest which in the reasonable opinion of the
Lender would have been payable to the Lender on the relevant Interest Payment
Date or Repayment Date, as the case may be, in respect of a dollar deposit
equal to the amount paid placed by the Lender with a prime bank in London for a
period starting on the third Business Day following the date of such payment
and ending on the last day of the relevant period. A certificate of the Lender
setting forth any amount or amounts that the Lender is entitled to receive
pursuant to this Section 13.05 shall be delivered to the Borrower and shall be
conclusive absent manifest error.
13.06 Prepayment Premium. The Borrower acknowledges and agrees that in
connection with the fixing of a fixed rate in connection with a Switch Option,
the Lender will enter into funding arrangements with third parties on terms and
conditions which could result in substantial losses to the Lender or such third
party if any portion of the principal of a Fixed Rate Note is paid prior to the
scheduled Repayment Date therefor, and that therefore if any portion of a Fixed
Rate Note is so paid (whether as a result of voluntary or mandatory prepayment,
acceleration, by operation of law, or otherwise) the Borrower will pay to the
Lender, as liquidated damages and not as a penalty, a prepayment premium on the
portion of a Fixed Rate Note paid prior to its scheduled Repayment Date,
calculated in the manner as shall have been notified to the Borrower by the
Lender at the time such fixed rate was proposed by the Lender to the Borrower in
connection with its exercise of a Switch Option.
SECTION 14. THE FACILITY AGENT
14.011 Appointment, Powers and Immunities.
(a) Ex-Im Bank hereby appoints the Facility Agent to act as its agent
in connection herewith and with the other Financing Documents and with any
other documents delivered to the Facility Agent under Section 6, and authorizes
the Facility Agent to exercise such rights, powers and discretions as are
specifically delegated to the Facility Agent by the terms hereof together with
all such rights, powers and discretions as are reasonably incidental thereto.
The Facility Agent shall have no duties or responsibilities to Ex-Im Bank
except those expressly set forth in this Agreement and the other Financing
Documents.
(b) Subject to the provisions of Section 14.01(c) and without prejudice
to the provisions of Section 14.01(a), the Facility Agent shall not be required
to exercise any discretion or take any action, and shall only be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of Ex-Im Bank; provided that the
Facility Agent shall not be required to take any action that exposes the
Facility Agent to personal liability or that is contrary to this Agreement or
Applicable Law. The Facility Agent shall have the right to request
instructions from Ex-Im Bank, except where otherwise provided
78
herein. If the Facility Agent shall request instructions from Ex-Im Bank with
respect to any act or action (including the failure to act) in connection with
the Financing Documents, the Facility Agent shall be entitled to refrain from
such act or taking such action unless and until the Facility Agent shall have
received instructions from Ex-Im Bank and the Facility Agent shall not incur
liability by reason of so refraining. Without limiting the foregoing, Ex-Im
Bank shall not have any rights whatsoever against the Facility Agent as a
result of the Facility Agent acting or refraining to act in accordance with the
instructions of Ex-Im Bank.
(c) Except with respect to its duties under Sections 3.02(a), 3.03(c),
3.03(d), 3.04(c), 3.04(e), 3.05(c), 3.05(f), 3.05(h), 3.06(a) 3.06(b), 3.06(c),
3.06(d), 8.02, 14.03 and Annex B hereof, the Facility Agent is not authorized
to act, nor shall it act or have any duty or obligation to act at any time, for
or on behalf of Ex-Im Bank or any of its successors or assigns.
14.02 Reliance by Facility Agent. The Facility Agent may:
(a) assume that the Lending Office of the Lender is such office identified
with its signature below until it has received from the Lender a notice
designating some other office of the Lender to replace its Lending Office
and act upon any such notice until the same is superseded by a further
such notice;
(b) assume that any right, power, authority or discretion vested herein upon
the Lender or any other Person or group of Persons has not been
exercised, unless the Responsible Officer of the Facility Agent has
received written notice to the contrary;
(c) absent written notice to the Facility Agent or actual knowledge of the
Responsible Officer to the contrary, (i) assume that any representation
made by any Person in connection with any Financing Document is true,
(ii) rely as to any matters of fact that might reasonably be expected to
be within the knowledge of any Person upon a certificate signed by or on
behalf of such Person, (iii) rely upon any communication or document
believed by it to be genuine, and (iv) assume that no Default or Event of
Default has occurred and is continuing and the Borrower is not in breach
of its obligations, or in default under any Finance Document to which it
is party;
(d) employ at the expense of the Borrower, in accordance with Section 16.02,
attorneys, accountants or other experts whose advice or services the
Facility Agent may determine is necessary, expedient or desirable; pay
reasonable fees and expenses for the advice or service of any such Person
and rely upon any advice so obtained; provided that the Facility Agent
shall be under no obligation to act upon such advice if it does not deem
such action to be appropriate;
(e) refrain from exercising any right, power or discretion vested in it as
Facility Agent hereunder unless and until instructed in accordance with
Section 14.01 as to whether or not such right, power or discretion is to
be exercised, and, if it is to be exercised, as to the manner in which it
should be exercised; and
(f) refrain from acting in accordance with any instructions of Ex-Im Bank to
begin any legal action or proceeding arising out of or in connection with
this Agreement or the other Financing Documents until it shall have
received such security as it may reasonably require
79
(whether by way of payment in advance or otherwise) for all costs, claims,
expenses (including legal fees) and liabilities that it will or may expend or
incur in complying with such instructions.
14.03 Duties of Facility Agent. The Facility Agent shall:
(a) receive and maintain documents required to be delivered by the
Borrower to the Facility Agent or (to the extent received by the Facility
Agent) to Ex-Im Bank in connection with any Disbursement or Utilization
pursuant to the terms of this Agreement and the Utilization and Disbursement
Procedures and shall forward copies of all such documents to Ex-Im Bank (to the
attention of the Asset Management Division);
(b) promptly inform Ex-Im Bank and the Lender of the contents of any
written notice or document received by it from the Borrower;
(c) promptly provide each written notice as may be required of it
pursuant to this Agreement;
(d) promptly, and in any event within five (5) Business Days of
receiving written notice or the Responsible Officer's obtaining actual
knowledge thereof, notify the Lender and Ex-Im Bank that a Default or an Event
of Default has occurred and is continuing;
(e) promptly, and in any event in the case of a determination based on
judgment within five (5) days of making such a determination, notify the Lender
and Ex-Im Bank that a Default or Event of Default has occurred and is
continuing, if the Facility Agent determines, in its judgment, taking into
account such information of which the Responsible Officer has actual knowledge
at the time, that it is apparent that such Default or Event of Default has
occurred and is continuing;
(f) act or refrain from acting in accordance with any instructions
given to it by Ex-Im Bank;
(g) promptly notify Ex-Im Bank of any change in the Responsible
Officer; and
(h) otherwise, have no duties or responsibilities, except those
expressly set out in this Agreement.
To the extent any term or provision of this Agreement (other than Section
16.09) or any other Financing Document requires the approval, consent,
decision, determination or satisfaction of, or any communication or
notification from the Facility Agent (including, without limitation, any such
action with respect to any appointment, amendment, condition, direction,
instruction, modification, supplement, or waiver related to any provision of
any such document), the Facility Agent undertakes to follow the directions of
Ex-Im Bank and shall act or refrain from acting in strict accordance with the
instructions of Ex-Im Bank until such time as all amounts owing to Ex-Im Bank
under the Financing Documents have been paid in full.
14.04 No Duty to Inquire. The Facility Agent shall not be bound to
inquire as to whether any representation made by any Person (other than itself)
in connection with any
80
Financing Document is true and shall have no responsibility for the accuracy or
completeness of any information supplied by any Person (other than itself) in
connection with the Project or pursuant to any Financing Document or for the
legality, validity, effectiveness, adequacy or enforceability of any Financing
Document or any other document referred to herein or provided for herein or for
any recitals, statement, representations or warranties made by the Borrower or
any other Person (other than itself) contained in this Agreement or any other
Financing Document or in any certificate or other document referred to,
provided for or received by the Facility Agent, hereunder or thereunder.
Without limiting the Facility Agent's obligations hereunder to review
documentation conditions precedent to Disbursements or Utilizations for
compliance on their face with the terms of this Agreement, the Facility Agent
shall have no duty to monitor or inquire as to, or to assess or analyze any
facts or circumstances in order to determine, compliance by the Borrower with
any covenant or undertaking of the Borrower, including, without limitation, the
covenants set forth in Sections 10 and 11.
14.05 No Liability. Neither the Facility Agent nor any of its officers,
directors, employees or agents shall be liable Ex-Im Bank or to any other
Person for any action taken (including the delivery of notices contemplated
hereunder) or omitted under this Agreement or under the other Financing
Documents, or in connection herewith or therewith, except to the extent caused
by the gross negligence or willful misconduct of the Facility Agent or any of
its officers, directors, employees or agents, as determined by a final, non-
appealable judgment of a court of competent jurisdiction. The duties of the
Facility Agent shall be mechanical and administrative in nature; the Facility
Agent shall not have by reason of this Agreement or any other Financing
Document a fiduciary relationship in respect of Ex-Im Bank; and nothing in this
Agreement or any other Financing Document, expressed or implied, is intended to
or shall be so construed as to impose upon the Facility Agent any obligations
in respect of this Agreement or any other Financing Document except as
expressly set forth herein or therein. Ex-Im Bank hereby releases, waives,
discharges and exculpates the Facility Agent for any action taken or omitted
under this Agreement, except to the extent caused by the gross negligence or
willful misconduct of the Facility Agent or any of its officers, directors,
employees or agents, as determined by a final, non-appealable judgment of a
court of competent jurisdiction.
14.06 The Facility Agent in Its Individual Capacity. With respect to its
obligation to lend under this Agreement in its capacity as Lender and its
rights and obligations under the other Financing Documents in such capacity,
the Facility Agent shall have the same rights and powers as any holder of a
Guaranteed Note or participation interest and may exercise the same as though
it were not performing the Facility Agent duties specified herein and the terms
"Lender," "holders of Guaranteed Notes" or any similar terms shall, unless the
context clearly otherwise indicates, include the Facility Agent in its
individual capacity as Lender. The Facility Agent may accept deposits from,
lend money to, and generally engage in any kind of banking, trust or other
business with the Borrower or any Affiliate thereof as if it were not
performing the duties specified herein, and may accept fees and other
consideration from the Borrower for services in connection with this Agreement
and otherwise without having to account for the same to Ex-Im Bank or any other
party. Notwithstanding anything to the contrary expressed or implied herein,
the Facility Agent shall not be bound to (a) account to Ex-Im Bank or any other
party for any sum or the profit element of any sum received by it for its own
account, or (b) disclose to any other Person any information relating to the
Borrower if such disclosure would or might in its
81
opinion constitute a breach of any law or regulation or otherwise be actionable
at the suit of any Person.
14.07 Resignation or Removal of Facility Agent.
(a) The Facility Agent may resign its appointment hereunder at any time
without assigning any reason therefor by giving not less than sixty (60) days'
prior written notice to that effect to each of the other parties hereto;
provided that no such resignation shall be effective until a successor for the
Facility Agent is appointed and has accepted such appointment, in accordance
with the succeeding provisions of this Section 14, and the resigning Facility
Agent has re-funded the pro rata portion of the annual agent's fee relating to
the period following the effective date of such resignation (net of any other
fees and expenses then owed by the Borrower to the Facility Agent).
(b) Ex-Im Bank may, with or without cause, terminate the appointment of
the Facility Agent hereunder at any time by giving not less than sixty (60)
days' prior written notice to that effect to the Facility Agent; provided that
no such termination shall be effective until a successor for the Facility Agent
is appointed and has accepted such appointment in accordance with the
succeeding provisions of this Section 14.
14.08 Replacement Facility Agent.
(a) If the Facility Agent gives notice of its resignation pursuant to
Section 14.07(a) or receives notice of termination pursuant to Section
14.07(b), then any reputable and experienced bank or other financial
institution acceptable to Ex-Im Bank may be appointed as a successor to the
Facility Agent by Ex-Im Bank during the period of such notice but, if no such
successor is so appointed, the Facility Agent may appoint such a successor
itself with the consent of Ex-Im Bank; provided that such successor shall be an
Acceptable Financial Institution authorized under all Applicable Law to
exercise corporate trust powers. In the event Ex-Im Bank has not consented to
any such successor proposed to be appointed by the Facility Agent within ninety
(90) days after the Facility Agent's notice of resignation, the Facility Agent
may petition any court of competent jurisdiction for the appointment of a
successor Facility Agent. Such court may thereupon, after such notice, if any,
as if may deem proper, appoint a successor Facility Agent, who shall serve in
such capacity until such time, if any, as Ex-Im Bank appoints a successor
Facility Agent as provided above.
(b) If a successor to the Facility Agent is appointed under the
provisions of Section 14.08(a), then promptly following such successor's
acceptance of such appointment, (i) the retiring Facility Agent shall be
discharged from any further obligation hereunder but shall remain entitled to
the benefits of this Section 14, and (ii) its successor and each of the other
parties hereto shall have the same rights and obligations amongst themselves as
they would have had if such successor had been a party hereto. After any
retiring Facility Agent's resignation or removal hereunder as Facility Agent,
this Section 14 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Facility
Agent.
14.09 Credit Decisions. It is understood and agreed by each of the Lender
and Ex-Im Bank that it has been, and will continue to be, solely responsible
for making its own independent
82
appraisal of and investigations into the financial condition, creditworthiness,
condition, affairs, status and nature of the Borrower and Ex-Im Bank and,
accordingly, each of the Lender and Ex-Im Bank warrants to the Facility Agent
that it has not relied on and will not hereafter rely on the Facility Agent:
(a) to check or inquire on its behalf into the adequacy, accuracy or
completeness of any information provided by any party in connection with this
Agreement or the transactions herein contemplated (whether or not such
information has been or is hereafter circulated to Ex-Im Bank by the Facility
Agent); or
(b) to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or nature of the
Borrower.
SECTION 15. GOVERNING LAW AND JURISDICTION
15.01 Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury
Trial.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW.
(b) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY LEGAL ACTION
OR PROCEEDING AGAINST THE BORROWER WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
FINANCING DOCUMENT MAY BE BROUGHT IN (i) THE COURTS OF THE STATE OF NEW YORK IN
THE COUNTY OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW
YORK, OR (ii) THE COURTS OF SINGAPORE AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF (TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW) AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS.
THE BORROWER AGREES THAT A JUDGMENT, AFTER EXHAUSTION OF ALL AVAILABLE APPEALS,
IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND BINDING UPON IT, AND
MAY BE ENFORCED IN ANY OTHER JURISDICTION, INCLUDING BY A SUIT UPON SUCH
JUDGMENT, A CERTIFIED COPY OF WHICH SHALL BE CONCLUSIVE EVIDENCE OF THE
JUDGMENT. THE BORROWER HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS CT
CORPORATION SYSTEM, WITH OFFICES AS OF THE DATE HEREOF AT ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, AS ITS DESIGNEE, APPOINTEE AND AGENT WITH RESPECT TO
ANY ACTION OR PROCEEDING IN NEW YORK, TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR
AND ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL
PROCESS, SUMMONS, NOTICES AND DOCUMENTS THAT MAY BE SERVED IN ANY SUCH ACTION
OR PROCEEDING AND AGREES THAT THE FAILURE OF SUCH AGENT TO GIVE ANY ADVICE OF
ANY SUCH SERVICE OF PROCESS TO THE BORROWER SHALL NOT IMPAIR OR AFFECT
83
THE VALIDITY OF SUCH SERVICE OR OF ANY PROCEEDING BASED THEREON. IF FOR ANY
REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS
SUCH, THE BORROWER AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN
NEW YORK CITY ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION SATISFACTORY
TO EX-IM BANK AND THE LENDER. THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE BORROWER, AT ITS ADDRESS SET FORTH IN SECTION 16.03,
SUCH SERVICE TO BECOME EFFECTIVE FIVE (5) DAYS AFTER SUCH MAILING. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF EX-IM BANK, THE LENDER OR ANY OTHER PARTY
HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE BORROWER IN ANY OTHER COURT
OR TRIBUNAL HAVING JURISDICTION.
(c) THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION THAT IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR
PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS OR ANY OTHER FINANCING
DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN SECTION 15.01(b) AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM.
(d) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
ANY OF THE FINANCING DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
15.02 Waiver of Sovereign Immunity. The Borrower acknowledges and agrees
that the activities contemplated by the provisions of the Financing Documents
are commercial in nature rather than governmental or public, and, therefore,
acknowledges and agrees that it is not entitled to any right of immunity on the
grounds of sovereignty or otherwise with respect to such activities or in any
legal action or proceeding arising out of or relating to the Financing
Documents. The Borrower, in respect of itself, its process agents, and its
property, assets and revenues, expressly and irrevocably waives, to the extent
permitted by Applicable Law, any such right of immunity that may now or
hereafter exist (including any immunity from any legal process, from the
jurisdiction of any court or from any execution or attachment in aid of
execution prior to judgment or otherwise) or claim thereto that may now or
hereafter exist, and agrees not to assert any such right or claim in any such
action or proceeding, whether in the United States or otherwise. The foregoing
waiver of sovereign immunity shall have effect to the fullest extent permitted
under the United States Sovereign Immunities Act of 1976 and is intended to be
irrevocable and not subject to withdrawal for purposes of such Act.
15.03 Waiver of Security Requirements. To the extent the Borrower may, in
any action or proceeding arising out of or relating to any of the Financing
Documents brought in the
84
Borrower's Country or elsewhere, be entitled under Applicable Law to require or
claim that any Financing Party post security for costs or take similar action,
the Borrower hereby irrevocably waives and agrees not to claim the benefit of
such entitlement.
SECTION 16. MISCELLANEOUS
16.01 Computations. Each determination of an interest rate or fee by the
Financing Parties (or any of them) pursuant to any provision of this Agreement
or the Guaranteed Note(s), in the absence of manifest error, shall be
conclusive and binding on the Borrower. All computations of interest and fees
hereunder and under the Guaranteed Note(s) shall be made on the basis of a year
of three hundred sixty (360) days and actual days elapsed and shall include the
first day and exclude the last day of the period of calculation.
16.02 Payment of Expenses; Etc. The Borrower shall, whether or not the
transactions herein contemplated are consummated, pay within thirty (30) days
after written demand unless otherwise specified herein the following:
(a) all reasonable and duly documented out-of-pocket costs and expenses
of each Financing Party (including all commissions, charges, costs and expenses
for the conversion of currencies and all other reasonable costs, charges and
expenses (including all reasonable fees and expenses of the legal counsel,
consultants and advisors for any of the foregoing but excluding syndication
costs)) made, paid, suffered or incurred in connection with (i) the
preparation, execution and delivery and, where appropriate, authentication,
registration, translation and recordation of this Agreement, the other
Financing Documents and any other documents and instruments related hereto or
thereto (including legal opinions); (ii) any amendment or modification to, or
the protection or preservation of, any right or claim under, or consent or
waiver in connection with, this Agreement or any other Financing Document, any
such other document or instrument related hereto or thereto; (iii) the
authentication, registration, translation and recordation (where appropriate)
and the delivery of the evidences of Indebtedness relating to the Loans and the
Disbursements; and (iv) the administration of this Agreement, the other
Financing Documents and any other documents and instruments referred to herein
or therein and all matters incidental thereto (including periodic visits to and
inspections of the Fab 7 Plant and related areas by the Financing Parties);
(b) all out-of-pocket costs and expenses of each Financing Party
(including all commissions, charges, costs and expenses for the conversion of
currencies and all other costs, charges and expenses (including all fees and
expenses of the legal counsel, consultants and advisors for any of the
foregoing)) made, paid, suffered or incurred in connection with the enforcement
(including with respect to a "work-out") of this Agreement, the other Financing
Documents and any other documents and instruments referred to herein or therein
and all matters incidental thereto (including visits to and inspections of the
Fab 7 Plant and related areas by the Financing Parties); and
(c) the reasonable and duly documented fees of any consultant from time
to time retained pursuant to the Financing Documents.
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16.03 Notices.
(a) Except as otherwise expressly provided herein or in any Financing
Document, all notices and other communications provided for hereunder or
thereunder shall be in English and shall (i) be in writing, (ii) be delivered
by electronic mail message or facsimile, and (iii) if it is not possible to be
delivered as required by clause (ii) of this Section 16.03(a), be delivered
either personally or by overnight courier (if for inland delivery) or
international courier (if for overseas delivery) to a party hereto at its
address and contact number set forth below, or at such other address and
contact number as are designated by such party in a written notice to the other
parties hereto:
Borrower:
Chartered Semiconductor Manufacturing Ltd
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇
▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Chief Financial Officer
Fax: ▇▇▇-▇▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇▇-▇▇▇▇
Ex-Im Bank:
Export-Import Bank of the United States
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Washington, DC 20571
Attention: Unless otherwise specified herein, - Asset Management
Division
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ (Asset Management Division)/(▇▇▇) ▇▇▇-▇▇▇▇
(Bank-wide)
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Lender, Facility Agent and L/C Bank:
Government Agency Unit
JPMorgan Chase Bank, N.A.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, 2020, 7355
cc: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
JPMorgan Chase Bank, N.A.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, 3011
86
(b) In the case of any notice to the Facility Agent, the Lender or Ex-
Im Bank, include a reference to: "Ex-Im Bank Guarantee No. AP080562XX-
Singapore".
(c) All such notices and communications shall be effective (i) if
delivered personally, when received; (ii) if sent by electronic mail message or
facsimile, when sent with receipt of confirmation; and (iii) if sent by
courier, (A) three (3) days after deposit with an overnight courier if for
inland delivery, and (B) five (5) days after deposit with an international
courier if for overseas delivery; provided, however, that if a notice or
communication is sent by courier, the sender shall send an electronic mail
message or a facsimile notifying the addressee(s) of the deposit of such notice
or communication; provided, further, that no notice or communication to Ex-Im
Bank, the Lender or the Facility Agent shall be effective until actually
received by such party.
16.04 Disposition of Indebtedness.
(a) The Lender may sell, transfer, pledge, negotiate, grant
participations in or otherwise dispose of all or any part of its interest in
all or any part of the Borrower's Indebtedness under this Agreement, any
Guaranteed Note or any other Financing Documents to any party (collectively, a
"Disposition of Indebtedness"), and any such party shall enjoy all the rights
and privileges of the Lender under this Agreement and each Guaranteed Note that
is the subject of such Disposition of Indebtedness to the extent of such
Disposition of Indebtedness. A Disposition of Indebtedness (other than a
participation) shall become effective upon execution and delivery by the
transferee and the Lender (and acknowledgment by Ex-Im Bank) of the Lender
Transfer Agreement (or such other document in replacement thereof as is
satisfactory to the Facility Agent) in the form of Annex E hereto. The
Borrower shall, at the request of the Facility Agent, execute and deliver to
the Facility Agent, or to any party that the Facility Agent may designate, any
such further instruments as may be necessary or desirable to give full force
and effect to a Disposition of Indebtedness by the Lender.
(b) In accordance with Section 16.04(a), the Lender may sell
participations (without the consent of the Facility Agent, the borrower or Ex-
Im Bank) to one or more parties in or to all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitments, the Loans owing to it, the Guaranteed Notes held by
it and any of its rights to compensation under Section 13); provided that
(i) the Lender's obligations under this Agreement (including, without
limitation, its Commitments to the Borrower hereunder) shall remain unchanged,
(ii) the Lender shall remain solely responsible to other parties hereto for the
performance of such obligations, (iii) the Lender shall remain the holder of
any such Guaranteed Notes for all purposes of this Agreement, and (iv) the
Borrower, Ex-Im Bank and the Facility Agent shall continue to deal solely and
directly with the Lender in connection with the Lender's rights and obligations
under this Agreement. The Borrower hereby agrees that each participant shall
be entitled to the benefits of Section 13.01, 13.02 and 13.03 to the same
extent as if it were the Lender and had acquired its interest by assignment.
To the extent permitted by law, each participant also shall be entitled to the
benefits of Section 16.17 as though it were the Lender, provided that such
participant agrees to be subject to Section 8.02 as thought it were the Lender.
(c) Notwithstanding any other provision set forth in this Agreement,
the Lender may at any time create a security interest in all or any portion of
its rights under this Agreement
87
and/or any Guaranteed Note in favor of any Federal Reserve Bank in accordance
with Regulation A of the Board of Governors of the Federal Reserve System.
(d) Ex-Im Bank may sell, assign, transfer, pledge, negotiate, grant
participations in or otherwise dispose of all or any part of its interest in
all or any part of the Borrower's Indebtedness under this Agreement (including,
without limitation, any interest acquired following any claim payment with
respect to any Guaranteed Note), and any of Ex-Im Bank's other rights or
obligations under this Agreement, to any party, and any such party shall enjoy
all the rights and privileges of Ex-Im Bank under this Agreement, and Ex-Im
Bank shall, to the extent of such disposal, be released from its obligations
hereunder. The Borrower shall, at the request of Ex-Im Bank, execute and
deliver to Ex-Im Bank, or to any party that Ex-Im Bank may designate, any such
further instruments as may be necessary or desirable to give full force and
effect to any such disposal by Ex-Im Bank.
(e) Notwithstanding anything to the contrary contained herein, the
Borrower may not assign or otherwise transfer any of its debts or obligations
under this Agreement or the Guaranteed Notes without the prior written consent
of the Lender and Ex-Im Bank.
16.05 Benefit of Agreement. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the respective successors and assigns of
the parties hereto.
16.06 Disclaimer. None of the Financing Parties shall be responsible in
any way for the performance of any Supply Contract and no claim against the
Exporter or any other Person with respect to the performance of any Supply
Contract will affect the obligations of the Borrower under any of the Financing
Documents.
16.07 No Waiver; Remedies Cumulative. No failure or delay on the part of
any Financing Party in exercising any right, power or privilege under this
Agreement, the Guaranteed Note(s) or any Financing Document and no course of
dealing between or among the Borrower, Ex-Im Bank, the Lender and/or the
Facility Agent shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder, under any
Guaranteed Note or under any other Financing Document preclude any other right,
power or privilege hereunder or thereunder. The rights and remedies expressly
provided herein are cumulative and not exclusive of any rights or remedies that
any Financing Party would otherwise have. No notice to or demand on the
Borrower in any case shall entitle the Borrower to any other or further notice
or demand in similar or other circumstances or constitute a waiver of the
rights of any Financing Party to any other or further action in any
circumstances without notice or demand.
16.08 Entire Agreement. This Agreement, the other Financing Documents and
the documents referred to herein contain the entire agreement among the parties
hereto regarding the Guaranteed Credits.
16.09 Amendment or Waiver.
(a) If a claim payment has not been made by Ex-Im Bank under the Ex-Im
Bank Guarantee Agreement pursuant to Section 5.05 thereof, no amendment,
modification or waiver of this Agreement pertaining to the Guaranteed Credits
shall:
88
(i) extend the date fixed for the payment of principal or credit
on either Guaranteed Credit;
(ii) reduce the amount of any payment of principal of either
Guaranteed Credit or the rate at which interest is payable thereon or any fee
or other amount is payable hereunder;
(iii) alter the terms of Section 5.03 or this Section 16.09; or
(iv) increase or decrease the Commitments,
unless such amendment, modification or waiver has been signed by the Borrower,
Ex-Im Bank and the Lender.
(b) Except for the matters set forth in clauses (i) through (iv) of
Section 16.09(a), this Agreement may be amended or modified, and any waiver of
any term or provision hereof may be granted, only by an instrument signed by
the Borrower and Ex-Im Bank; provided, however, that no amendment, modification
or waiver that affects any of the rights or duties of the Facility Agent or the
Lender may be made without the prior written consent of the Facility Agent or
the Lender, as the case may be.
16.10 Indemnification.
(a) The Borrower shall, whether or not the transactions herein
contemplated are consummated, indemnify each Financing Party and its respective
officers, directors, employees, representatives, counsel and agents (each, an
"Indemnified Party") and defend and hold them harmless from and against any and
all present and future liabilities, obligations, losses, damages, penalties,
injuries (to person, property or natural resources), claims, actions,
judgments, suits, costs, expenses and disbursements of whatever kind or nature
(collectively, "Indemnifiable Costs"), demanded, asserted or claimed by any of
them as a result of, or arising out of, or in any way related to, or by reason
of, any investigation, litigation or other proceeding or inquiry (whether or
not such Indemnified Party is a party thereto) related to their participation
in the transactions contemplated by any Financing Document or the Disbursement
or use of the proceeds of any Guaranteed Credit, including the reasonable fees
and disbursements of counsel selected by such Indemnified Party incurred in
connection with any such investigation, litigation or other proceeding or in
connection with enforcing the provisions of this Section 16.10(a) but excluding
any Indemnifiable Costs to the extent incurred by reason of the gross
negligence or willful misconduct of the Indemnified Party, as determined
pursuant to a final, non-appealable judgment by a court of competent
jurisdiction).
(b) Without limitation of Section 16.10(a), the Borrower agrees to
defend, protect, indemnify and hold harmless each Indemnified Party from and
hold each of them harmless against any and all Indemnifiable Costs imposed on
or asserted against any such Persons directly or indirectly based on, or
arising or resulting from (i) the actual or alleged presence of Hazardous
Materials on, under or at the Fab 7 Plant, (ii) any Environmental Claim
relating to the Borrower or the Project or arising out of the use of the Fab 7
Plant, or (iii) the exercise of any Indemnified Party's rights under any of the
provisions of this Section 16.10, but excluding any matter based
89
solely on the fraud, gross negligence or willful misconduct of any such
Indemnified Party or any of their respective officers, directors, employees,
representatives, attorneys or agents, as the case may be, as determined pursuant
to a final, non-appealable judgment by a court of competent jurisdiction.
(c) To the extent that any undertaking in clauses (a) and (b) of this
Section 16.10 may be unenforceable because it is violative of any law or public
policy, the Borrower shall contribute the maximum portion that it is permitted
to pay and satisfy under Applicable Law to the payment and satisfaction of such
undertaking.
(d) All sums paid and costs incurred by any Indemnified Party with
respect to any matter indemnified hereunder shall bear interest at the Default
Rate from the date the Borrower receives notice thereof from such Indemnified
Party until such Indemnified Party is reimbursed by the Borrower. All sums
paid and costs incurred by any Financing Party with respect to any matter
indemnified hereunder shall, except as otherwise set forth herein, be
immediately due and payable on demand. Each such Indemnified Party shall
promptly notify the Borrower in a timely manner of any such amounts payable by
Borrower hereunder; provided, however, any failure to provide such notice shall
not affect the Borrower's obligations under this Section 16.10. The provisions
of this Section 16.10 shall survive satisfaction or discharge of the Guaranteed
Credits and related obligations and shall be in addition to any other rights
and remedies of any Indemnified Party.
(e) Each Indemnified Party pursuant to Sections 16.10(a) and (b),
within fifteen (15) Business Days after the receipt by it of notice of the
commencement of any action for which indemnity may be sought by it, or by any
Person Controlling it, from the Borrower on account of the agreements contained
in this Section 16.10, shall notify the Borrower in writing of the commencement
thereof; provided, however, that the failure of such Indemnified Party to so
notify the Borrower of any such action shall not release the Borrower from any
liability that it may have to such Indemnified Party. The Borrower shall be
entitled to participate in the defense of any such action so long as no Default
or Event of Default has occurred and is continuing.
(f) The Borrower agrees that no Indemnified Party shall have any
liability (whether special, direct, indirect or consequential, in contract or
tort or otherwise) to the Borrower or any of its Affiliates or to their
respective security holders or creditors arising out of, related to or in
connection with the Project or any of the Financing Documents, except to the
extent caused by such Indemnified Party's fraud, gross negligence or willful
misconduct, as finally determined by a court of competent jurisdiction whose
determination of such matter is not subject to appeal. In no circumstance
shall (i) any Indemnified Party be liable to the Borrower for any indirect or
(whether direct or indirect) special or consequential losses or damages
suffered by the Borrower or any of its Affiliates (including lost profits,
business opportunities or anticipated savings), or (ii) the liability of either
Ex-Im Bank or the Lender hereunder exceed the amount actually borrowed by the
Borrower under the Guaranteed Credits.
16.11 Currency Indemnity.
(a) The currency in which an amount is expressed to be payable, and the
place where that amount is to be paid, under the terms of the Financing
Documents are of the essence of the
90
transactions represented by the Financing Documents, and no obligation under
the Financing Documents shall be discharged or satisfied unless and until the
relevant Financing Party has received the full amount payable in respect of
such obligation in the currency and in accordance with the Financing Documents.
(b) The Borrower, as an independent obligation, shall indemnify each
Financing Party against any loss or liability that such Financing Party incurs
as a consequence of:
(i) such Financing Party receiving an amount in respect of the
Borrower's liability under the Financing Documents; or
(ii) such liability being converted into a claim, proof, judgment
or order,
in a currency other than the currency in which the amount is expressed to
be payable, or in a place other then the place where that amount is to be paid,
under the relevant Financing Document.
(c) Unless otherwise required by law, the Borrower waives any right it
may have in any jurisdiction to pay any amount under the Financing Documents in
a currency other than that in which it is expressed to be payable.
16.12 Counterparts. This Agreement may be signed in separate counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
16.13 Termination of the Ex-Im Bank Guarantee Agreement. In the event that
the Ex-Im Bank Guarantee Agreement terminates in its entirety pursuant to the
terms and conditions of the Ex-Im Bank Guarantee Agreement, as of the date of
such termination, the rights of Ex-Im Bank under Section 12 of this Agreement
shall automatically be deemed to have been assigned to the Lender, except for
those rights under Section 12 that relate to the Guaranteed Credit in respect of
which Ex-Im Bank has made a claim payment under the Ex-Im Bank Guarantee
Agreement.
16.14 English Language. All documents to be delivered by any party hereto
pursuant to the terms hereof shall be in the English language or, if originally
written in another language, shall be accompanied by an accurate English
translation upon which the other parties hereto shall have the right to rely for
all purposes under this Agreement and any Guaranteed Note.
16.15 Severability. To the extent permitted by Applicable Law, the
illegality or unenforceability of any provision of this Agreement shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement.
16.16 Ex-Im Bank as Subrogee. Each of the parties hereto agrees that, upon
payment of any amount by Ex-Im Bank under the Ex-Im Bank Guarantee Agreement,
Ex-Im Bank shall be subrogated (by way of an assignment, by operation of law or
otherwise) to all of the rights of the Lender in respect of Guaranteed Amounts
under the Financing Documents (other than the Fee Letter and claims of the
Lender not consisting of Guaranteed Amounts) or otherwise to the
91
extent set forth in the Ex-Im Bank Guarantee Agreement and in this Agreement,
and all payments by the Borrower hereunder with respect to such Guaranteed
Amounts shall thereafter be made directly to Ex-Im Bank (and not to the
Facility Agent).
16.17 Right of Setoff. If an Event of Default shall have occurred and is
continuing, the Lender is hereby authorized at any time and from time to time,
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other obligations at any time owing by the Lender or any of its
Affiliates to or for the credit or the account of the Borrower against any of
and all the obligations of the Borrower now or hereafter existing under this
Agreement held by the Lender, irrespective of whether the Lender shall have made
any demand under this Agreement and although such obligations may be unmatured.
The rights of the Lender under this Section 16.17 are in addition to other
rights and remedies (including other rights of setoff) which the Lender may
have.
16.18 Certain Negative Covenants of Lender. The Lender agrees that it will
not, without the prior written consent of Ex-Im Bank, (a) declare all or any
part of the Borrower's Indebtedness under any Guaranteed Note to be due and
payable, or (b) agree to any material amendment, modification, supplement or
waiver of, or give any consent or approval under, any term or provision of the
Financing Documents. Nothing herein shall preclude the Lender from demanding
payment when due of obligations of the Borrower not constituting Guaranteed
Amounts.
[SIGNATURE PAGES FOLLOW]
92
IN WITNESS WHEREOF, each of the parties hereto has caused this Ex-Im Bank
Facility Agreement to be duly executed and delivered as of the date first above
written.
CHARTERED SEMICONDUCTOR
MANUFACTURING LTD
By: /s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
(Signature)
Name: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
(Print)
Title:PRESIDENT & CEO
(Print)
EXPORT-IMPORT BANK OF THE UNITED STATES
By: /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
(Signature)
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
(Print)
Title:VICE PRESIDENT, STRUCTURED FINANCE
(Print)
Ex-Im Bank Guaranteed Credit No. AP080562XX-Singapore
93
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Lender
By: /s/ ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
(Signature)
Name: ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
(Print)
Title:VICE PRESIDENT
(Print)
Lending Office information:
JPMorgan Chase Bank, N.A.
International Banking Facility
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Facility Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
(Signature)
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
(Print)
Title:ASSISTANT TREASURER
(Print)
Ex-Im Bank Guaranteed Credit No. AP080562XX-Singapore
94
Schedule 9.01(b)
CAPITALIZATION OF THE BORROWER
[ATTACHED]
1
Schedule 9.01(j)
PROCEEDINGS
None.
1
Schedule 9.01(n)(iv)
WITHHOLDING TAXES
[ATTACHED]
1
Schedule 9.01(r)
INDEBTEDNESS
[ATTACHED]
1
Schedule 11.01(l)
HEDGING POLICIES
[ATTACHED]
1
Exhibit A
FORM OF NOTICE OF BORROWING
[Letterhead of the Borrower]
Date of this Notice of Borrowing: _______________, 20___(1)
Requested Drawdown Date: _______________, 20___
Government Agency Unit
JPMorgan Chase Bank, N.A.,
as Lender and as Facility Agent
4 Chase MetroTech Center, 10th Floor
Brooklyn, NY 11245
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Export-Import Bank of the United States
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Asset Management Division
Re: CHARTERED SEMICONDUCTOR FAB 7 PROJECT - NOTICE OF
BORROWING
EX-IM BANK GUARANTEE NO. AP080562XX-SINGAPORE
Ladies and Gentlemen:
1. This Notice of Borrowing (this "Notice of Borrowing") is
delivered to you pursuant to Sections 3.02(a) and 6.03(c) of that certain Ex-Im
Bank Facility Agreement dated as of December 23, 2004 (the "Ex-Im Bank Facility
Agreement"), by and among CHARTERED SEMICONDUCTOR MANUFACTURING LTD, a public
company limited by shares duly organized and existing under the laws of the
Republic of Singapore (the "Borrower"); JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, a national banking association duly organized and existing under
the laws of the United States of America, as Lender (the "Lender"); EXPORT-
IMPORT BANK OF THE UNITED STATES, an independent agency of the government of
the United States of America ("Ex-Im Bank"); and JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, a national banking association duly organized and existing under
the laws of the United States of America, as Facility Agent (the "Facility
Agent"). All capitalized terms used but not defined herein shall have the
respective meanings ascribed thereto in the Ex-Im Bank Facility Agreement.
2. This Notice of Borrowing constitutes a request for a
Disbursement of US$[_______], which shall be allocated as follows:
----------
(1) To be delivered no later than twenty (20) Business Days prior to the
Requested Drawdown Date.
EXHIBIT A
1
Guaranteed Credit Amount Requested
-------------------------------- ----------------
Tranche [A][B] Guaranteed Credit US$__________
Reimbursements US$__________
L/C Payments US$__________
Exposure Fee US$__________
The Borrower hereby represents and warrants:
1. The Requested Drawdown Date for the above Disbursement is
______________, 20___, which is a Business Day that is at least twenty (20)
Business Days after the delivery of this Notice of Borrowing and which is the
same date for each Disbursement requested by this Notice of Borrowing.
2. The immediately preceding Requested Drawdown Date was
__________. The immediately preceding Disbursement Date was __________.
Excluding Disbursements necessary to permit the final Disbursement, no other
Disbursement has been made during the current calendar month.
3. On the Requested Drawdown Date, after giving effect to the
Disbursement requested hereunder, the aggregate balance of all Disbursements
(from and including the Initial Disbursement Date) under the Guaranteed Credits
is US$________. The foregoing amount is allocated as follows:
% of Aggregate
Guaranteed Credit Disbursements
--------------------------- --------------
Tranche A Guaranteed Credit US$_______ _____%
Reimbursements US$_______ _____%
L/C Payments US$_______ _____%
Exposure Fee US$_______ _____%
[Tranche B Guaranteed Credit US$_______ _____%
Reimbursements US$_______ _____%
L/C Payments US$_______ _____%
Exposure Fee US$_______ _____%]
4. The proceeds of the Disbursement requested hereunder shall be
applied only to such Project Costs as are permitted under the Ex-Im Bank
Facility Agreement.
5. With respect to the requested Disbursement, the Disbursement
will be made by way of [Reimbursement][L/C Payment].
----------
(2) Except with respect to the final Disbursement under each Guaranteed Credit,
the minimum draw amount for each Guaranteed Credit shall be (a) US$5,000,000 in
the case of the initial Disbursement under each Guaranteed Credit, and (b)
US$1,000,000 in the case of any other Disbursement.
EXHIBIT A
2
[Include if applicable] [6. The Construction Progress Report dated
____ indicates the absence of Material Compliance with the original Ramp and
Capital Costs Budget delivered pursuant to Section 6.01(g) or the Ramp Schedule
in the following manner: [Borrower to insert description.]]
7. No Default or Event of Default has occurred and is continuing
as of the date hereof (or shall result from the making of the requested
Disbursement).
8. Both immediately before and after giving effect to the
requested Disbursement, all representations and warranties of the Borrower
contained in Section 9 of the Ex-Im Bank Facility Agreement and in any other
Financing Document are and shall be true, correct and complete in all material
respects with the same force and effect as though such representations and
warranties had been made on and as of the date hereof, except for any such
representations and warranties in such Financing Documents that expressly
relate only to an earlier date.
9. The proceeds of the requested Disbursement are required by
the Borrower for the payment of Project Costs already paid, currently due and
payable or scheduled to become due or payable in the thirty (30) days next
succeeding the relevant Disbursement Date.
10. No Material Adverse Effect exists; nor is there any fact or
circumstance known to the Borrower that could reasonably be expected to result
in a Material Adverse Effect.
11. There are no actions, suits, proceedings or, to the
Borrower's knowledge, claims or investigations at law or in equity (if
applicable) pending before any Governmental Authority, arbitral tribunal or
other body that could reasonably be expected to succeed on the merits (a) to
set aside, restrain, enjoin or prevent the development or construction of the
Fab 7 Plant or the making of any Disbursement; or (b) against or affecting the
Borrower, any of the Borrower's property or the Project that, in the case of
this clause (b) (if adversely determined), could reasonably be expected to
result in a Material Adverse Effect.
12. The Borrower has applied amounts consisting of Corporate Cash
Balance from time to time to the payment of Project Costs in an aggregate
amount of (a) not less than US$2.15 for every US$1.00 of original Tranche A
Commitment[, and (b) not less than US$0.70 for every US$1.00 of original
Tranche B Commitment].
EXHIBIT A
3
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Borrowing on the date first above written.
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
By: ___________________________
Name: _________________________
Title: __________________________
cc: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
JPMorgan Chase Bank, N.A.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attachments
EXHIBIT A
4
EXHIBITS TO FORM OF NOTICE OF BORROWING
(To be attached by the Borrower)
A. All certificates and documentation required by the Notice of Borrowing
(including certifications, documents or other items necessary to
establish the satisfaction of the conditions of the Ex-Im Bank Facility
Agreement); provided, however, that the certificates and documentation
required under Section 6.01 of the Ex-Im Bank Facility Agreement in
connection with the Initial Disbursement Date shall not be required to be
delivered in connection with any subsequent Notice of Borrowing delivered
in connection with any subsequent Disbursement, unless the Ex-Im Bank
Facility Agreement specifically contemplates otherwise pursuant to
Sections 6.02 and 6.03 thereof.
B. Disbursement Certificate signed by an Authorized Officer of the Borrower.
EXHIBIT A
5
Exhibit B
FORM OF DISBURSEMENT CERTIFICATE
[Letterhead of the Borrower]
Date of this Disbursement Certificate: _______________, 20___ (1)
Requested Drawdown Date: _______________, 20___
Government Agency Unit
JPMorgan Chase Bank, N.A.,
as Lender and as Facility Agent
4 Chase MetroTech Center, 10th Floor
Brooklyn, NY 11245
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Export-Import Bank of the United States
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Asset Management Division
Re: CHARTERED SEMICONDUCTOR FAB 7 PROJECT - DISBURSEMENT
CERTIFICATE
EX-IM BANK GUARANTEE NO. AP080562XX-SINGAPORE
Ladies and Gentlemen:
1. This Disbursement Certificate (this "Certificate") is
delivered to you pursuant to Sections 3.02(a) and 6.03(c) of that certain Ex-Im
Bank Facility Agreement dated as of December 23, 2004 (the "Ex-Im Bank Facility
Agreement"), by and among CHARTERED SEMICONDUCTOR MANUFACTURING LTD, a public
company limited by shares duly organized and existing under the laws of the
Republic of Singapore (the "Borrower"); JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, a national banking association duly organized and existing under
the laws of the United States of America, as Lender (the "Lender"); EXPORT-
IMPORT BANK OF THE UNITED STATES, an independent agency of the government of
the United States of America ("Ex-Im Bank"); and JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, a national banking association duly organized and existing under
the laws of the United States of America, as Facility Agent (the
---------
(1) To be delivered no later than twenty (20) Business Days prior to the
Requested Drawdown Date with the Notice of Borrowing.
EXHIBIT B
1
"Facility Agent"). All capitalized terms used but not defined herein shall have
the respective meanings ascribed thereto in the Ex-Im Bank Facility Agreement.
2. The Borrower hereby certifies for the benefit of each
Financing Party that:
(a) The aggregate amount of Project Costs incurred through (and
including) the Requested Drawdown Date is US$__________, segregated by major
categories as described on EXHIBIT A attached hereto.
(b) Of the Project Costs described in clause (a) above, (i) those items
listed on Annex 1 to EXHIBIT A have previously been paid, (ii) those items
listed on Annex 2 to EXHIBIT A are currently due and payable, and (iii) those
items listed on Annex 3 to EXHIBIT A are expected to become due and payable in
the thirty (30) days next succeeding the Requested Drawdown Date.
(c) The proceeds of the Disbursement are needed by the Borrower for
payment of the Project Costs described in clauses (b)(i), (ii) and (iii) above.
(d) The Project Costs described in clauses (b)(i), (ii) and (iii) above
have not been the subject of any previous or pending Disbursement.
(e) The Borrower is in compliance with each of the conditions set forth
in [Section 6.01 and](2) [Section 6.04 and](3) [Section 6.02](4) Section 6.03 of
the Ex-Im Bank Facility Agreement.
----------
(2) Use only in connection with the initial Disbursement or initial Utilization
under the Tranche A Guaranteed Credit.
(3) Use only in connection with a Disbursement or Utilization under the Tranche
A Guaranteed Credit occurring on or after December 31, 2005.
(4) Use only in connection with the initial Disbursement or initial Utilization
under the Tranche B Guaranteed Credit.
EXHIBIT B
2
IN WITNESS WHEREOF, the Borrower has executed this Disbursement
Certificate on the date first above written.
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
By: _________________________
Name: _________________________
Title: _________________________
cc: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
JPMorgan Chase Bank, N.A.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attachments:Exhibit A Project Costs
Annex 1 Previously paid
Annex 2 Due and payable
Annex 3 Expected to become due and payable in the thirty (30)
days next succeeding the Requested Drawdown Date
EXHIBIT B
3
EXHIBIT A
TO DISBURSEMENT CERTIFICATE
PROJECT COSTS
Project Costs incurred through (and including) the Requested
Drawdown Date, segregated by major categories,(5)
[Category] US$__________
Total: US$__________
--------
(5) Categories should correspond to line items in the Ramp and Capital Costs
Budget.
EXHIBIT B
4
ANNEX 1
TO EXHIBIT A
TO DISBURSEMENT CERTIFICATE
[List Project Costs previously paid]
EXHIBIT B
5
ANNEX 2
TO EXHIBIT A
TO DISBURSEMENT CERTIFICATE
[List Project Costs currently due and payable]
EXHIBIT B
6
ANNEX 3
TO EXHIBIT A
TO DISBURSEMENT CERTIFICATE
[List Project Costs expected to become due and payable
in the thirty (30) days next succeeding the Requested Drawdown Date]
EXHIBIT B
7
Exhibit C
FORM OF BORROWER'S CLOSING CERTIFICATE
[Letterhead of the Borrower]
Date: [Dated as of the Initial Disbursement Date]
Government Agency Unit
JPMorgan Chase Bank, N.A.,
as Lender and as Facility Agent
4 Chase MetroTech Center, 10th Floor
Brooklyn, NY 11245
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Export-Import Bank of the United States
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Asset Management Division
Re: CHARTERED SEMICONDUCTOR FAB 7 PROJECT - BORROWER'S CLOSING
CERTIFICATE
EX-IM BANK GUARANTEE NO. AP080562XX - SINGAPORE
Ladies and Gentlemen:
1. This Borrower's Closing Certificate (this "Certificate") is
delivered to you pursuant to Section 6.01(b) and Sections 6.01(a), 6.01(c),
6.01(f), 6.01(g), 6.01(i), 6.01(j), 6.01(k), 6.01(p) and 6.01(t) of that
certain Ex-Im Bank Facility Agreement dated as of December 23, 2004 (the "Ex-Im
Bank Facility Agreement"), by and among CHARTERED SEMICONDUCTOR MANUFACTURING
LTD, a public company limited by shares duly organized and existing under the
laws of the Republic of Singapore (the "Borrower"); JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION, a national banking association duly organized and
existing under the laws of the United States of America, as Lender (the
"Lender"); EXPORT-IMPORT BANK OF THE UNITED STATES, an independent agency of
the government of the United States of America ("Ex-Im Bank"); and JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION, a national banking association duly organized
and existing under the laws of the United States of America, as Facility Agent
(the "Facility Agent"). All capitalized terms used but not defined herein
shall have the respective meanings ascribed thereto in the Ex-Im Bank Facility
Agreement.
EXHIBIT C
1
2. I, [name], hereby certify that I am the duly [[elected] or
[appointed] insert appropriate term] and qualified [title] of the Borrower and
that, in such capacity, I am authorized to execute this Certificate on behalf
of the Borrower.
3. The Borrower hereby certifies as of the date hereof as follows:
(a) each Financing Document (except the Guaranteed Note in
respect of the Tranche B Guaranteed Credit) to which the Borrower is a party
has been duly executed and delivered by the Borrower and, to the Borrower's
knowledge, is in full force and effect in accordance with its terms;
(b) attached hereto as EXHIBIT A is a true, correct and
complete copy of the Memorandum and Articles of Association of the Borrower[,
certified as of a recent date by the appropriate Governmental Authority of
Singapore](1);
(c) attached hereto as EXHIBIT B is a certificate dated as
of a recent date from the appropriate Governmental Authority of Singapore as to
the good standing and existence of the Borrower;
(d) attached hereto as EXHIBIT C are true, correct and
complete copies of the resolutions [and, as applicable, ratifications] adopted
by the board of directors of the Borrower approving (A) the Borrower's
participation in the Project and the Financing and (B) authorizing the
execution, delivery and performance of each Financing Document to which the
Borrower is or is to be a party;
(e) the persons listed below are (i) presently acting
officers of the Borrower duly elected and qualified to the offices set forth
opposite their respective names and (ii) each authorized to (A) execute and
deliver the Financing Documents to which the Borrower is or is to be a party or
(B) otherwise act on the Borrower's behalf with regard to the Project. The
signature of each such officer (as set forth hereon) is the true and genuine
signature of such officer:
Name Title Signature
[Name] [Title] _______________________________
[Name] [Title] _______________________________
[Name] [Title] _______________________________
(f) attached hereto as EXHIBIT D is a true, correct and
complete copy of the Ramp Schedule. Attached hereto as EXHIBIT E is a true,
correct and complete copy of the Ramp and Capital Costs Budget. Both the Ramp
Schedule and the Ramp and Capital Costs Budget and supporting documents
(i) were prepared in good faith by the Borrower; (ii) are based upon
assumptions that are consistent with the applicable provisions of the Financing
Documents
----------
(1) Insert the bracketed text, if applicable.
2
EXHIBIT C
and Applicable Law and that the Borrower considers to be reasonable; and (iii)
in the Borrower's reasonable judgment, represent the best reasonable estimate of
the information set forth therein as of the date hereof. As of the date hereof,
the construction of the Fab 7 Plant has progressed in accordance, and is in
Material Compliance, with the Ramp Schedule and the Ramp and Capital Costs
Budget. The Ramp and Capital Costs Budget is consistent with the initial Ramp
Schedule and the Borrower Projections;
(g) the Borrower Projections and the underlying models and
assumptions related thereto, including, without limitation, the underlying
assumptions in respect of all applicable tax laws and regulations (i) were
prepared in good faith by the Borrower; (ii) are based upon assumptions that
are consistent with the applicable provisions of the Financing Documents and
Applicable Law; (iii) are, to the best of the Borrower's knowledge, after
reasonable inquiry, reasonable; and (iv) represent the Borrower's best
reasonable estimate of the information set forth therein as of the date hereof;
(h) the Borrower and the Project are in compliance (i) in
all respects with Environmental Requirements, and (ii) in all material respects
with all other Applicable Laws;
(i) as of December 31, 2004, [the sum of the current
Corporate Cash Balance plus the aggregate amount of Corporate Cash Balance
previously expended on Project Costs equals or exceeds US$900,000,000] [the sum
of the current Corporate Cash Balance plus the aggregate amount of Corporate
Cash Balance previously expended on Project costs equals or exceeds
US$800,000,000 and the Borrower [has obtained] [will obtain] the Fab 7 Customer
Deposit in an amount equal to or exceeding US$100,000,000](2)
(j) the financing committed to be provided to the Borrower
pursuant to the Financing Documents, together with the amounts of Corporate
Cash Balance described in clause (i) above, is sufficient to enable the
Borrower to pay all Project Costs set forth in the Ramp and Capital Costs
Budget and otherwise achieve the Phase I Completion Date;
(k) each Supply Contract has been duly executed by the
Borrower and the relevant Exporter and is in full force and effect; and
(l) (i) all security interests intended to be created
pursuant to the Account Pledge Agreement have been created and, where
appropriate, registered or recorded, or other action has been taken that is
necessary in Singapore to create (to the extent permitted by Applicable Law) a
first-priority perfected security interest and Lien over the Charged Property
(as defined in the Account Pledge Agreement) in favor of the Security Trustee
and Ex-Im Bank; (ii) all fees and duties due and payable in connection with
such registration, recordation or other action have been paid; and (iii) all
such security interests are valid and enforceable against (A) the Borrower, and
(B) any subsequent lienor (including a judgment lienor), holder of a charge or
transferee for value or not, in bulk, by operation of law, for the benefit of
creditors, or otherwise.
----------
(2) Insert applicable bracketed language.
EXHIBIT C
3
IN WITNESS WHEREOF, the Borrower has executed this ▇▇▇▇▇▇▇▇'s
Closing Certificate on the date first above written.
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
By: _________________________
Name: _________________________
Title:_________________________
cc: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
JPMorgan Chase Bank, N.A.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attachments:Exhibit A Articles of Association
Exhibit B Certificate of Good Standing and Existence
Exhibit C Resolutions
Exhibit D Ramp Schedule
Exhibit E Ramp and Capital Costs Budget
EXHIBIT C
4
Exhibit D
FORM OF BORROWER'S FINANCIAL STATEMENT CERTIFICATE
[Letterhead of the Borrower]
Date:________________(1)
Government Agency Unit
JPMorgan Chase Bank, N.A.,
as Lender and as Facility Agent
4 Chase MetroTech Center, 10th Floor
Brooklyn, NY 11245
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Export-Import Bank of the United States
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Asset Management Division
Re: CHARTERED SEMICONDUCTOR FAB 7 PROJECT - ▇▇▇▇▇▇▇▇'S FINANCIAL
STATEMENT CERTIFICATE
EX-IM BANK GUARANTEE NO. AP080562XX - SINGAPORE
Ladies and Gentlemen:
1. This Borrower's Financial Statement Certificate (this
"Certificate") is delivered to you pursuant to Section [6.01(d)] [10.01(o)](2)
of that certain Ex-Im Bank Facility Agreement dated as of December 23, 2004
(the "Ex-Im Bank Facility Agreement"), by and among CHARTERED SEMICONDUCTOR
MANUFACTURING LTD, a public company limited by shares duly organized and
existing under the laws of the Republic of Singapore (the "Borrower"); JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION, a national banking association duly organized
and existing under the laws of the United States of America, as Lender (the
"Lender"); EXPORT-IMPORT BANK OF THE UNITED STATES, an independent agency of
the government of the United States of America ("Ex-Im Bank"); and JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION, a national banking association duly organized
and existing under the laws of the United States of America, as Facility Agent
(the "Facility Agent"). All capitalized terms used but not defined
----------
(1) If delivered pursuant to Section 6.01(d), date as of the Initial
Disbursement Date. If delivered pursuant to Section 10.01(o)(i), deliver as soon
as available, but in any event within ninety (90) days after the end of each
Fiscal Year. If delivered pursuant to Section 10.01(o)(ii), deliver as soon as
available, but in any event within thirty (30) days after the Borrower's receipt
of the relevant financial statements. If delivered pursuant to Section
10.01(o)(iii), deliver as soon as available, but in any event within sixty (60)
days after each of the first three (3) fiscal quarters in each Fiscal Year.
(2) Insert appropriate section reference.
1
EXHIBIT D
herein shall have the respective meanings ascribed thereto in the Ex-Im Bank
Facility Agreement.
2. I, [name], hereby certify that I am the duly [[elected] or
[appointed] insert appropriate term] and qualified [title](3) of the Borrower
and that, in such capacity, I am authorized to execute this Certificate on
behalf of the Borrower.
3. The Borrower hereby certifies as of the date hereof as follows:
(a) attached hereto as EXHIBIT A are copies of the most
recent [audited annual] [and] [unaudited quarterly] financial statements of the
Borrower [,and the most recent annual or interim reports given to the Borrower
by the Independent Accountant (other than ordinary course non-substantive
correspondence)] (the "Financial Statements");
(b) the Financial Statements (i) are true, correct and
complete in all material respects as of the date of such statements; (ii) have
been prepared in accordance with GAAP; and (iii) present fairly, in all
material respects, the financial condition of the Borrower and the results of
its operations and cash flows as at the end of and for the applicable period
[(subject, in the case of quarterly financial statements, to normal year-end
audit adjustments) (insert, if applicable, only if submitting quarterly
financials)]; [and
(c) no material adverse change in the consolidated assets,
liabilities, operations or financial condition of the Borrower has occurred
from that set forth in the Financial Statements attached hereto [except as
detailed below: (exceptions shall be in form and substance satisfactory to Ex-
Im Bank)].](4)
[(c) other than as set forth in the Financial Statements or
otherwise previously disclosed in writing to Ex-Im Bank and the Lender, there
are no liabilities or obligations that could reasonably be expected to be
material to the Borrower or could reasonably be expected to have a Material
Adverse Effect; and
(d) no Default or Event of Default has occurred and is
continuing that has not been waived.](5)
----------
(3) Must be chief financial officer or other appropriate financial officer.
(4) Use regarding statements delivered pursuant to Section 6.01(d).
(5) Use regarding statements delivered pursuant to Section 10.01(o).
EXHIBIT D
2
IN WITNESS WHEREOF, the Borrower has executed this Certificate on
the date first above written.
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
By: _________________________
Name: _________________________
Title:_________________________
cc: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
JPMorgan Chase Bank, N.A.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attachment: Exhibit AFinancial Statements
EXHIBIT D
3
Exhibit E
FORM OF CONSTRUCTION PROGRESS REPORT
[ATTACHED]
EXHIBIT E
1
Exhibit F
FORM OF ANNUAL BUDGET
[ATTACHED]
EXHIBIT F
1
FORM OF TRANCHE [A/B] FLOATING RATE GUARANTEED NOTE Annex A-1
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
TRANCHE [A/B] PROMISSORY NOTE
US$______ __________, 20__
FOR VALUE RECEIVED, Chartered Semiconductor Manufacturing Ltd, with offices at
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Maker"), by
this promissory note (this "Guaranteed Note") hereby unconditionally promises to
pay to the order of JPMorgan Chase Bank, National Association, as Lender (the
"Lender"), at JPMorgan Chase Bank, N.A., International Banking Facility, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ABA Number ▇▇▇▇▇▇▇▇▇, Account
Number 544748148, Account Name IBF, Reference: Chartered Semiconductor/Eximbank,
or at such other account and address in the United States as the holder hereof
may direct from time to time, the principal sum of ______________ or, if less,
the aggregate unpaid and outstanding principal amount of this Guaranteed Note,
and to pay interest on the principal balance hereof from time to time
outstanding at the rate per annum equal to the Applicable Interest Rate.
Beginning on the Ex-Im Bank Claim Payment Date (hereinafter defined), the
definition of Special LIBOR shall apply for all purposes, including, without
limitation, the seventh paragraph hereof, in place of the definition of LIBOR.
All capitalized terms not defined herein have the meanings assigned to them in
the Ex-Im Bank Facility Agreement (hereinafter defined).
The principal hereof shall be paid in ten (10) successive, semi-annual
installments commencing on the Repayment Commencement Date for the Tranche
[A/B] Guaranteed Credit and on each Repayment Date thereafter up to and
including the Final Maturity Date for the Tranche [A/B] Guaranteed Credit. The
installment payable on any Repayment Date will be of a principal amount equal
to the percentage for the relevant Repayment Date (as set out in Schedule 1 to
this Guaranteed Note) of the principal amount of Disbursements outstanding on
the expiry of the Availability Period. The Maker shall, on the Final Maturity
Date, repay in full the principal amount hereof then outstanding.
Interest on this Guaranteed Note is payable on each Repayment Date, beginning
on the first such date following the [Initial Disbursement Date] [date of the
initial Disbursement under the Tranche B Guaranteed Credit]. Interest will be
calculated on the basis of the actual number of days elapsed over a year of 360
days.
In the event that any amount of the principal hereof or accrued interest on
this Guaranteed Note is not paid in full when due (whether at stated maturity,
by acceleration or otherwise), the Maker shall pay to the Lender on demand
interest on such unpaid amount (to the extent permitted by Applicable Law) for
the period from the date such amount was due until such amount shall have been
paid in full at an interest rate per annum equal to one percent (1%) per annum
above the
A-1-1
interest rate then applicable under the first paragraph hereof until the end of
the then current Interest Period.
Notwithstanding the above, beginning on the date on which Ex-Im Bank shall have
made a claim payment to the Lender under the Ex-Im Bank Guarantee Agreement
(the "Ex-Im Bank Claim Payment Date"), in the event any amount of principal of
or accrued interest on this Guaranteed Note owing to Ex-Im Bank is not paid in
full when due (whether at stated maturity, by acceleration or otherwise), the
Maker shall pay to Ex-Im Bank on demand interest on such unpaid amount (to the
extent permitted by Applicable Law) for the period from the date such amount
was due until such amount shall have been paid in full at an interest rate per
annum equal to one percent (1%) above the interest rate then applicable under
the first paragraph hereof.
This is the Guaranteed Note referenced in Section 5.04(a) of the Ex-Im Bank
Facility Agreement, dated as of December 23, 2004, by and among the Maker, the
Lender, the Facility Agent and Ex-Im Bank (as amended, modified or supplemented
and in effect from time to time, the "Ex-Im Bank Facility Agreement"). This
Guaranteed Note is entitled to the benefits of and is governed in all respects
by, the terms of the Ex-Im Bank Facility Agreement, which Ex-Im Bank Facility
Agreement, among other things, contains provisions for the payment of principal
and interest (including default interest) hereon without set-off, counterclaim,
deduction, withholding on account of taxes levied and imposed under the laws of
the government of Singapore (or any other jurisdiction from which such payments
required hereunder are made), restrictions and conditions of whatever nature,
and for acceleration of the maturity hereof upon the happening of certain
stated events. The principal amount hereof may be prepaid in accordance with
the terms of the Ex-Im Bank Facility Agreement. This Guaranteed Note shall be
valid and enforceable as to its principal amount at any time only to the extent
of the aggregate amount then disbursed and outstanding under the Tranche [A/B]
Guaranteed Credit, and as to interest only to the extent of the interest
thereon. All payments received hereunder shall be applied in accordance with
the order of priority set forth in Section 8.02 of the Ex-Im Bank Facility
Agreement.
All Disbursements made with respect to the Tranche [A/B] Guaranteed Credit
pursuant to the Ex-Im Bank Facility Agreement and all payments and prepayments
made on account of the principal balance hereof shall be recorded by the Lender
on the grid set forth on Schedule 2 hereto, provided that failure to make such
a notation shall not affect or diminish the Maker's obligation to repay all
amounts due on this Guaranteed Note, as and when due. Any notations by the
Lender on this Guaranteed Note regarding payments made on account of the
principal thereof, in the absence of manifest error, shall be conclusive and
binding. Upon the payment in full of this Guaranteed Note, the Lender shall
promptly surrender this Guaranteed Note to the Borrower through Ex-Im Bank for
cancellation.
The Maker hereby waives demand, diligence, presentment, protest and notice of
every kind, and warrants to the holder that all action and approvals required
for the execution and delivery hereof as a legal, valid and binding obligation
of the undersigned, enforceable in accordance with the terms hereof, have been
duly taken and obtained.
This Guaranteed Note shall be governed by, and construed in accordance with,
the law of the State of New York, including Sections 5-1401 and 5-1402 of the
New York General Obligations Law.
A-1-2
CHARTERED SEMICONDUCTOR
MANUFACTURING LTD
By: ________________________________
(Signature)(1)
Name: ________________________________
(Print)
Title:________________________________
(Print)
By: ________________________________
(Signature)
Name: ________________________________
(Print)
Title:________________________________
(Print)
Promissory Note No. _____
Ex-Im Bank Guarantee No. AP080562XX-Singapore
----------
(1) Corporate makers should sign only in their corporate capacities with proper
reference to their corporate titles.
A-1-3
Schedule 1 to
Annex A-1
PRINCIPAL REPAYMENT SCHEDULE
PERCENTAGE OF
GUARANTEED CREDIT TO BE
INSTALLMENT REPAID REPAYMENT DATE(2) REPAYMENT DATE(3)
----------- ------ ----------------- -----------------
1 10.00% July 15, 2007 January 15, 2009
2 10.00% January 15, 2008 July 15, 2009
3 10.00% July 15, 2008 January 15, 2010
4 10.00% January 15, 2009 July 15, 2010
5 10.00% July 15, 2009 January 15, 2011
6 10.00% January 15, 2010 July 15, 2011
7 10.00% July 15, 2010 January 15, 2012
8 10.00% January 15, 2011 July 15, 2012
9 10.00% July 15, 2011 January 15, 2013
10 10.00% January 15, 2012 July 15, 2013
----------
(2) Use this column in connection with the Tranche A Guaranteed Credit. Insert
earlier dates, as appropriate, in the event the Phase I Interim Completion Date
occurs prior to January 15, 2007.
(3) Use this column in connection with the Tranche B Guaranteed Credit. Insert
earlier dates, as appropriate, in the event the Phase I Completion Date occurs
prior to July 15, 2008.
A-1-4
Schedule 2 to
Annex A-1
This Guaranteed Note evidences Disbursements made under the within-described
Ex-Im Bank Facility Agreement to the Maker, on the dates and in the principal
amounts, subject to payments and prepayments of principal, set forth below:
DATE OF PRINCIPAL AMOUNT OF PAYMENT DATE OF AMOUNT PAID OR UNPAID PRINCIPAL NOTATION MADE
DISBURSEMENT DISBURSEMENT DISBURSEMENT PREPAID AMOUNT BY
A-1-5
FORM OF TRANCHE [A/B] FIXED RATE GUARANTEED NOTE Annex A-2
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
TRANCHE [A/B] PROMISSORY NOTE
U.S. $______ __________, 20__
Chartered Semiconductor Manufacturing Ltd, with offices at ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Maker"), by this promissory
note (this "Guaranteed Note") hereby unconditionally promises to pay to the
order of JPMorgan Chase Bank, National Association, as Lender (the "Lender"),
at JPMorgan Chase Bank, N.A., International Banking Facility, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ABA Number ▇▇▇▇▇▇▇▇▇, Account Number 544748148,
Account Name IBF, Reference: Chartered Semiconductor/Eximbank, or at such other
account and address in the United States as the holder hereof may direct from
time to time, the principal sum of ______________ or, if less, the aggregate
unpaid and outstanding principal amount of this Guaranteed Note, and to pay
interest on the principal balance hereof from time to time outstanding at the
rate per annum equal to [_____________]. All capitalized terms not defined
herein have the meanings assigned to them in the Ex-Im Bank Facility Agreement
(hereinafter defined).
The principal hereof shall be paid in ten (10) successive, semi-annual
installments commencing on the Repayment Commencement Date for the Tranche
[A/B] Guaranteed Credit and on each Repayment Date thereafter up to and
including the Final Maturity Date for the Tranche [A/B] Guaranteed Credit. The
installment payable on any Payment Date will be of a principal amount equal to
the percentage for the relevant Repayment Date (as set out in Schedule 1 to
this Guaranteed Note) of the principal amount of Disbursements outstanding on
the Final Disbursement Date. The Maker shall, on the Final Maturity Date,
repay in full the principal amount hereof then outstanding.
Interest on this Guaranteed Note is payable on each Interest Payment Date,
beginning on the first such date following the Switch Date. Interest will be
calculated on the basis of the actual number of days elapsed (including the
first day, but excluding the last day) over a year of 360 days.
In the event that any amount of the principal hereof or accrued interest on
this Guaranteed Note is not paid in full when due (whether at stated maturity,
by acceleration or otherwise), the Maker shall pay to the Lender on demand
interest on such unpaid amount (to the extent permitted by Applicable Law) for
the period from the date such amount was due until such amount shall have been
paid in full at an interest rate per annum equal to one percent (1%) per annum
above the interest rate then applicable under the first paragraph hereof until
the end of the then current Interest Period.
Notwithstanding the above, beginning on the date on which Ex-Im Bank shall have
made a claim payment to the Lender under the Guarantee Agreement (the "Ex-Im
Bank Claim Payment Date")
A-2-1
in the event any amount of principal of or accrued interest on this Guaranteed
Note owing to Ex-Im Bank is not paid in full when due (whether at stated
maturity, by acceleration or otherwise), the Maker shall pay to Ex-Im Bank on
demand interest on such unpaid amount (to the extent permitted by Applicable
Law) for the period from the date such amount was due until such amount shall
have been paid in full at an interest rate per annum equal to one percent (1%)
above the interest rate then applicable under the first paragraph hereof.
This is the Guaranteed Note referenced in Clause 5.04(a) of the Ex-Im Bank
Facility Agreement, dated as of December 23, 2004, by and among the Maker, the
Lender, the Facility Agent and Ex-Im Bank (as amended, modified or supplemented
and in effect from time to time, the "Ex-Im Bank Facility Agreement"). This
Guaranteed Note is entitled to the benefits of and is governed in all respects
by, the terms of the Ex-Im Bank Facility Agreement, which Ex-Im Bank Facility
Agreement, among other things, contains provisions for the payment of principal
and interest (including default interest) hereon without set-off, counterclaim,
deduction, withholding on account of taxes levied and imposed under the laws of
the government of Singapore (or any other jurisdiction from which such payments
required hereunder are made), restrictions and conditions of whatever nature,
and for acceleration of the maturity hereof upon the happening of certain
stated events. The principal amount hereof may be prepaid in accordance with
the terms of the Ex-Im Bank Facility Agreement. This Guaranteed Note shall be
valid and enforceable as to its principal amount at any time only to the extent
of the aggregate amount then disbursed and outstanding under the Tranche [A/B]
Guaranteed Credit, and as to interest only to the extent of the interest
thereon. All payments received hereunder shall be applied in accordance with
the order of priority set forth in Section 8.02 of the Ex-Im Bank Facility
Agreement.
All Disbursements made with respect to the Tranche [A/B] Guaranteed Credit
pursuant to the Ex-Im Bank Facility Agreement and all payments and prepayments
made on account of the principal balance hereof shall be recorded by the Lender
on the grid set forth on Schedule 2 hereto, provided that failure to make such
a notation shall not affect or diminish the Maker's obligation to repay all
amounts due on this Guaranteed Note, as and when due. Any notations by the
Lender on this Guaranteed Note regarding payments made on account of the
principal thereof, in the absence of manifest error, shall be conclusive and
binding. Upon the payment in full of this Guaranteed Note, the Lender shall
promptly surrender this Guaranteed Note to the Borrower through Ex-Im Bank for
cancellation.
The Maker hereby waives demand, diligence, presentment, protest and notice of
every kind, and warrants to the holder that all action and approvals required
for the execution and delivery hereof as a legal, valid and binding obligation
of the undersigned, enforceable in accordance with the terms hereof, have been
duly taken and obtained.
This Guaranteed Note shall be governed by, and construed in accordance with,
the law of the State of New York, including Sections 5-1401 and 5-1402 of the
New York General Obligations Law.
A-2-2
CHARTERED SEMICONDUCTOR
MANUFACTURING LTD
By: ________________________________
(Signature)(1)
Name: ________________________________
(Print)
Title:________________________________
(Print)
By: ________________________________
(Signature)
Name: ________________________________
(Print)
Title:________________________________
(Print)
Promissory Note No. _____
Ex-Im Bank Guarantee No. AP080562XX-Singapore
----------
(1) Corporate makers should sign only in their corporate capacities with proper
reference to their corporate titles.
A-2-3
Schedule 1 to
Annex A-2
PRINCIPAL REPAYMENT SCHEDULE
PERCENTAGE OF
GUARANTEED CREDIT TO BE
INSTALLMENT REPAID REPAYMENT DATE(1) REPAYMENT DATE(2)
----------- ------ ----------------- -----------------
1 10.00% July 15, 2007 January 15, 2009
2 10.00% January 15, 2008 July 15, 2009
3 10.00% July 15, 2008 January 15, 2010
4 10.00% January 15, 2009 July 15, 2010
5 10.00% July 15, 2009 January 15, 2011
6 10.00% January 15, 2010 July 15, 2011
7 10.00% July 15, 2010 January 15, 2012
8 10.00% January 15, 2011 July 15, 2012
9 10.00% July 15, 2011 January 15, 2013
10 10.00% January 15, 2012 July 15, 2013
----------
(2) Use this column in connection with the Tranche A Guaranteed Credit. Insert
earlier dates, as appropriate, in the event the Phase I Interim Completion Date
occurs prior to January 15, 2007.
(3) Use this column in connection with the Tranche B Guaranteed Credit. Insert
earlier dates, as appropriate, in the event the Phase I Completion Date occurs
prior to July 15, 2008.
A-2-4
Schedule 2 to
Annex A-2
This Guaranteed Note evidences Disbursements made under the within-described
Ex-Im Bank Facility Agreement to the Maker, on the dates and in the principal
amounts, subject to payments and prepayments of principal, set forth below:
DATE OF PRINCIPAL AMOUNT OF PAYMENT DATE OF AMOUNT PAID OR UNPAID PRINCIPAL NOTATION MADE
DISBURSEMENT DISBURSEMENT DISBURSEMENT PREPAID AMOUNT BY
A-2-5
UTILIZATION AND DISBURSEMENT PROCEDURES Annex B
FOR GUARANTEED CREDITS
I. Introduction
In order to be guaranteed by Ex-Im Bank, funds in respect of the Financed
Portion must be disbursed under the Agreement in accordance with the
"Reimbursement Procedure" or the "L/C Procedure," both of which are described
below. No other disbursement methods are permitted.
II. Reimbursement Procedure
The Borrower may from time to time request that Disbursements be made by
the Lender to any account of the Borrower notified to the Lender by the
Borrower in accordance with the Agreement to reimburse the Borrower for the
Financed Portion of any payments made to an Exporter or Ancillary Services
Provider.
To obtain Disbursements under the Reimbursement Procedure:
A. No later than twenty (20) Business Days prior to such
Disbursement, the Borrower shall deliver copies of the following
documents (collectively, the "Reimbursement Documents") to the Facility
Agent, all of which must be satisfactory in form and substance to the
Facility Agent and Ex-Im Bank. Upon receipt, the Facility Agent shall
review the Reimbursement Documents for compliance and promptly submit
them, not later than fourteen (14) Business Days prior to the date of
such Disbursement, to the Operations Division of Ex-Im Bank if deemed
satisfactory to it, with a copy to the Asset Management Division:
1. The original Request for Reimbursement to ▇▇▇▇▇▇▇▇'s
Account, in the form of Exhibit 2 to this Annex B, signed by the
authorized representative(s) of the Borrower accompanied by an
Itemized Statement of Payments in the form of Exhibit 2(a) to this
Annex B for each Exporter or Ancillary Services Provider.
2. Copies of the invoice(s) for the Goods and Services to
be financed under the requested Disbursement, bearing a U.S. street
address (unless otherwise agreed in writing by Ex-Im Bank), and
bearing or accompanied by evidence that the Exporter(s) or
Ancillary Services Provider(s), as the case may be (the "Payee"),
has been paid. Evidence of payment may be any of the following:
(a) a "paid" stamp on the invoice signed by the Payee; (b) a copy
of a commercial bank's "Advice of Payment" to the Payee; (c) a copy
of both sides of a cancelled check made payable to the Payee; or
(d) a letter from the Payee acknowledging payment.
3. An original completed Exporter's Certificate(s) in the
form of Exhibit 1 to this Annex B, signed by an authorized officer
or employee of the
B-1
Exporter or Ancillary Services Provider (with attachments, if
required), unless an Exporter's Certificate has been previously
provided by such Exporter (or Ancillary Services Provider) pursuant
to a prior Disbursement.
4. Copies of signed, clean, on-board ocean, airway,
railway or other bills of lading evidencing shipment of the Goods
from the United States to the Borrower's Country. Ocean bills of
lading must either show shipment on vessels of U.S. registry or be
accompanied by an appropriate MARAD waiver (as described in Part IV
below). Bills of lading are not required for Services or Progress
Payments.
5. An original completed Anti-Lobbying Certificate in the
form of Exhibit 3, signed by an authorized officer of the Exporter
or Ancillary Services Provider unless an Anti-Lobbying Certificate
has been previously provided by such Exporter (or Ancillary
Services Provider); provided no such certificate is required in any
event if the relevant Supply Contract has an aggregate value of
US$100,000 or less.
6. Such other documents, statements, certificates,
information and evidence as the Facility Agent or Ex-Im Bank may
from time to time reasonably request.
Ex-Im Bank may receive copies of the Reimbursement Documents,
except for (i) the Request for Reimbursement to Borrower's Account, (ii)
the Anti-Lobbying Certificate and (iii) the Exporter's Certificate, each
of which shall be manually signed originals.
B. Upon approval of the Reimbursement Documents, Ex-Im Bank shall issue to
the Facility Agent a Certificate Authorizing Reimbursement (Goods and Services),
in the form of Exhibit 4 to this Annex B.
C. Upon receipt of the Certificate Authorizing Reimbursement, the Lender
will reimburse the Borrower for the Financed Portion of the Goods and Services,
as approved by Ex-Im Bank in such Certificate, and will simultaneously pay to
Ex-Im Bank the Exposure Fee (if financed) that is due on such Reimbursement, in
accordance with the terms of the Agreement. The sum of the amount so reimbursed
to the Borrower, together with the Exposure Fee paid to Ex-Im Bank, shall
constitute a Disbursement under the Guaranteed Credit.
D. If a Letter of Credit naming the Exporter as the Beneficiary has been
previously opened in accordance with the L/C Procedure set forth in Part III
below, the Lender will coordinate with Ex-Im Bank and the Borrower to determine
the appropriate Disbursement percentage that will apply to the requested L/C
Payment, based on the Exporter's Certificate submitted under the L/C Procedure.
B-2
III. L/C Procedure
The Borrower may request a commercial bank located in the United States
that is acceptable to the Facility Agent and Ex-Im Bank (an "L/C Bank")(1) to
issue, confirm or advise letters of credit ("Letters of Credit") in favor of an
Exporter (or U.S.-based Ancillary Services Provider) as the Beneficiary. Ex-Im
Bank reserves the right to limit the number of Letters of Credit for which it
will issue Certificates Approving Letter of Credit. Whenever possible, all Goods
and Services to be purchased from one Beneficiary should be covered under a
single Letter of Credit. Letters of Credit shall be limited to those covering
Goods and Services.
To obtain Disbursements under the L/C Procedure:
A. The Borrower shall submit or instruct the L/C Bank to submit to
Ex-Im Bank the following documents (collectively, the "L/C Documents"),
all of which must be satisfactory in form and substance to the L/C Bank,
the Facility Agent and Ex-Im Bank:
1. The original Request for Letter of Credit Approval, in the
form of Exhibit 5 to this Annex B, signed by the authorized
representative(s) of the Borrower.
2. Three (3) copies of the proposed letter of credit in favor
of the Beneficiary, complete in all respects, except for date and
signature by the L/C Bank, and accompanied by a copy of the related
pro forma invoice or Supply Contract. The Borrower's instructions to
the L/C Bank with respect to the proposed letter of credit shall
provide that the documents to be presented for drawings under such
letter of credit meet the documentary requirements of the Agreement,
including the submission of invoices (except that invoices need not
be accompanied by evidence of payment), any amended Exporter's
Certificates, and bills of lading, in form and substance as
specified in Part II above.
3. An original completed Exporter's Certificate(s), signed by
an authorized officer of the Exporter or Ancillary Services Provider
(with attachments if required); unless such Exporter (or Ancillary
Services Provider) has previously provided an Exporter's Certificate
pursuant to a prior Utilization.
4. An original completed Anti-Lobbying Certificate in the form
of Exhibit 3, signed by an authorized officer of the Exporter or
Ancillary Services Provider unless an Anti-Lobbying Certificate has
been previously provided by such Exporter (or Ancillary Services
Provider); provided no such certificate is required in any event if
the Exporter's or Ancillary Services Provider's, as the case may be,
Supply Contract has an aggregate value of US$100,000 or less.
5. Such other documents, statements, certificates, information
and evidence required under Section 3.03 of the Agreement or as Ex-
Im Bank may from time to time reasonably request.
----------
(1) The Lender may also be the L/C Bank if the Lender is a commercial bank
located in the United States.
B-3
B. Upon approval of the L/C Documents, Ex-Im Bank shall issue to the
L/C Bank, with a copy to the Facility Agent, a Certificate Approving
Letter of Credit, in the form of Exhibit 6 to this Annex B.
C. Upon receipt of the Certificate Approving Letter of Credit, the
L/C Bank shall issue, advise or confirm the Letter of Credit.
D. If the Exposure Fee is included in the Letter of Credit, before
any drawings are permitted under the Letter of Credit, the L/C Bank shall
have received from the Beneficiary of such Letter of Credit its
irrevocable instructions, in form and substance satisfactory to the
Lender, the L/C Bank and Ex-Im Bank, to (i) deduct from the first payment
(if the Exposure Fee is to be paid "up front") or each payment (if the
Exposure Fee is to be paid "as disbursed") under the Letter of Credit an
amount equal to the Exposure Fee payable to Ex-Im Bank; and (ii) to pay
such amount directly to Ex-Im Bank.
E. The L/C Bank will pay the Beneficiary under the Letter of Credit
upon presentation of the documents required by the Letter of Credit
("Drawing Documents"), and will simultaneously pay to Ex-Im Bank the
applicable Exposure Fee, if any. A Disbursement shall be deemed to occur
when the L/C Bank makes payment of a draft drawn under the Letter of
Credit (an "L/C Payment"). The sum of the amount so paid to the
Beneficiary under, and in accordance with the terms of, the Letter of
Credit, together with the Exposure Fee paid to Ex-Im Bank, shall
constitute the amount of the Disbursement.
F. Within three (3) Business Days after the date of an L/C Payment,
the Facility Agent shall deliver, or instruct the L/C Bank to deliver, to
Ex-Im Bank copies of the Drawing Documents related to such L/C Payment
(including a copy of the advice of payment to the Beneficiary's account),
except any Amended Exporter's Certificate, which shall be a manually
signed original.
G. Ex-Im Bank Approval of Letter of Credit Amendments.
1. Any amendments to a Letter of Credit not listed in Part
III.H below must be approved by Ex-Im Bank, the Facility Agent and
the L/C Bank. The Borrower's request for Ex-Im Bank's approval of
such amendment shall be made in the form of Exhibit 7 to this Annex
B, completed and signed by the Authorized Officer(s) of the
Borrower and accompanied by any relevant documents. If Ex-Im Bank
approves the proposed amendment, it shall issue to the L/C Bank,
with a copy to the Facility Agent, a Certificate Approving
Amendment of Letter of Credit in the form of Exhibit 8 to this
Annex B.
2. No Letter of Credit shall be amended except in
accordance with the procedures set out in Part III.G.1 or Part
III.H.2.
B-4
H. L/C Bank Approval of Letter of Credit Amendments.
1. After Ex-Im Bank has issued a Certificate Approving a
Letter of Credit, so long as the procedures set forth in Part
III.H.2 below are followed, the Facility Agent and the L/C Bank may
approve any of the following amendments to Letters of Credit in
accordance with the Uniform Customs and Practices for Documentary
Credits (International Chamber of Commerce Publication 500), as the
same may be amended from time to time ("UCP") without Ex-Im Bank's
prior approval:
a. In order to allow sufficient time for the
presentation of all documents and the making of all Letter of
Credit disbursements, extend the expiry date to the earlier
of: (i) a date certain; and (ii) the expiry of the relevant
Availability Period deemed by Ex-Im Bank to be effective under
the relevant Guaranteed Credit;
b. Extend the final shipment date to the earlier of: (i)
a date certain and (ii) the Letter of Credit's expiry date;
c. Permit partial shipment(s);
d. Permit transshipment(s) in accordance with the
provisions of 46 U.S.C. Section 1241-1 (Public Resolution No.
17 of the 73rd Congress of the United States, as amended);
e. Permit shipment(s) by any airline rather than ocean
vessel, provided that air waybill(s) are required with respect
to such shipment(s) instead of ocean bill(s) of lading;
f. With the prior consent of each Beneficiary, permit a
reduction of the Letter of Credit's face amount;
g. Permit "on-deck" shipment(s);
h. Permit a change in the address of a Beneficiary,
provided that such address, when changed, is a street address
located in the United States;
i. Permit ocean shipment(s), provided that signed,
clean, on-board ocean bill(s) of lading are required with
respect to such shipment(s) and that such bill(s) of lading
evidence shipment(s) on ocean vessel(s) of either (i) U.S.
registry or (ii) non-U.S. registry pursuant to a MARAD waiver
of the provisions of 46 U.S.C. Section 1241-1 (Public
Resolution No. 17 of the 73rd Congress of the United States,
as amended);
j. Permit language or spelling changes that do not
constitute or give rise to a material change in the terms and
conditions of such Letter
B-5
of Credit, in order to: (i) correct a typographical error;
(ii) correct an omission or (iii) clarify otherwise ambiguous
language;
k. Permit changes made on account of requirements for
certain consularized documents, except that such change(s)
shall not result in the modification or elimination of a
commercial invoice as a necessary document for presentation;
l. Permit acceptance of "stale" documents or documents
which are presented or are to be presented later than 21
calendar days from the related shipment date, provided that
such documents are dated no earlier than the date referred to
in Section 2.01 of the Agreement;
m. Permit the change of either: (i) the originating port
or originating airport to a different U.S. port or U.S.
airport or (ii) the port of destination or airport of
destination to a different port located in the Borrower's
Country or a different airport located in the Borrower's
Country;
n. Permit changes in the number of copies of documents
to be presented by a Beneficiary; provided such changes do not
result in the deletion or modification in the terms of a
document required for presentation.
2. Any request by the Borrower to the Facility Agent for
approval of an amendment of a Letter of Credit pursuant to Part
III.H.1 shall be made in the form of Exhibit 9 to this Annex B,
completed and signed by an Authorized Officer of the Borrower, and
accompanied by the relevant documents, including copies of the
proposed Letter of Credit amendment prepared by the L/C Bank. If
the Facility Agent approves the proposed amendment, the Facility
Agent shall issue to Ex-Im Bank, no later than ten (10) Business
Days after the issuance of the Letter of Credit amendment, a Notice
of Letter of Credit Amendment, in the form of Exhibit 10 to this
Annex B, completed and signed on behalf of the Facility Agent by an
authorized officer of the Facility Agent, and accompanied by any
relevant documents.
3. By written notice to the L/C Bank and the Borrower, Ex-
Im Bank may suspend or cancel the authority of the L/C Bank to
approve Letter of Credit amendments pursuant to the procedure set
out in this Part III.H.
IV. Ocean Transportation - MARAD Waivers
If any of the Goods are to be or were previously exported on ocean vessels
that are not vessels of U.S. registry, the Borrower must obtain a waiver from
the provisions of 46 U.S.C. Section 1241-1 (Public Resolution No. 17 of the 73rd
Congress of the United States, as amended). An application for waiver must be
submitted to the U.S. Maritime Administration ("MARAD") at the following
address: Director, Office of Market Development, Room 7207, Maritime
Administration, Department of Transportation, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
B-6
(with a copy to Ex-Im Bank). For further information about PR17 waivers, please
contact MARAD or go to its website at ▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇.▇▇▇. Each application
for such waiver must be submitted to MARAD sufficiently in advance of the
intended shipping date in order to allow MARAD adequate opportunity to process
the application. If any of the Goods are or were shipped on ocean vessels of
non-U.S. registry without a MARAD waiver, or contrary to the provisions of a
MARAD waiver, such Goods will not be eligible for financing under the Guaranteed
Credits.
Exhibits to Annex B:
1 - Form of Exporter's Certificate
2 - Request for Reimbursement to Borrower's Account
2(a) - Itemized Statement of Payments
3 - Anti Lobbying Certificate
4 - Certificate Authorizing Reimbursement
5 - Request for Letter of Credit Approval
6 - Certificate Approving Letter of Credit
7 - Request for Ex-Im Bank Approval of Amendment to Letter of Credit
8 - Certificate Approving Amendment to Letter of Credit
9 - Request for Facility Agent Approval of Amendment to Letter of
Credit
10 - Notice of Letter of Credit Amendment
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
The following is included for informational purposes only, and is not
part of the Agreement:
Because the Exporter(s) (and Ancillary Services Provider(s), if any) and
the L/C Bank are not parties to the Agreement, the Borrower and the Facility
Agent will need to take the following steps to ensure that the Guaranteed
Credit is disbursed in a timely fashion:
1. The Borrower should advise the Exporter(s) (and any Ancillary
Services Provider(s)) of the provisions of this Agreement that will require its
cooperation, including, without limitation, the requirement that the relevant
initial Exporter's Certificate be completed and submitted prior to the first to
occur of the Initial Disbursement or the initial Utilization. The Borrower
should also advise the Exporter(s) (and any Ancillary Services Provider(s)) of
its obligation, as described in Section 7 of the Exporter's Certificate, to
submit an amended Exporter's Certificate if the information or certifications
set forth in a previously submitted Exporter's Certificate become untrue.
2. If the Borrower would like to use the L/C Procedure, the Borrower
must make appropriate arrangements with the L/C Bank regarding the issuance,
confirmation or advice of the Letters of Credit and the payment of any fees
that the L/C Bank may charge. The Lender and the L/C Bank must enter into a
reimbursement agreement with respect to the L/C Payments, which reimbursement
agreement, along with Ex-Im Bank's Certificate Approving Letter of Credit, will
be conditions precedent to the issuance, confirmation or advice of a letter of
credit by the L/C Bank.
B-7
3. Examples of sample L/C proviso wording can be found at
▇▇▇.▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇▇.
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
B-8
Annex B
Exhibit 1
EXPORT-IMPORT BANK OF THE UNITED STATES
FORM OF EXPORTER'S CERTIFICATE
FOR USE WITH MEDIUM AND LONG TERM LOANS AND GUARANTEES, AND MEDIUM TERM EXPORT
CREDIT INSURANCE
Name and U.S. Street Address of Exporter:
Date:___________
RE: Ex-Im Bank Guarantee No. AP080562XX-Singapore
Purchaser: _____________________
Supply Contract/Purchase Order No.(s) _______
Check one: [ ] Initial Exporter's Certificate
[ ] Amended Exporter's Certificate. The following has
changed: [specify]
We understand that the Export-Import Bank of the United States ("Ex-Im Bank")
provides credit support to promote U.S. export sales, and that Ex-Im Bank will
determine the scope of its support for our sale to the Purchaser based on the
information provided below. To aid in this determination, we, the Exporter,
hereby certify:
PART A: CONTENT
1. Content. This information is based on our best efforts to assess the value
of the goods and services ("Goods and Services") to be provided under our
supply contract or signed purchase order with the Purchaser (the "Supply
Contract/Purchase Order(s)"). Content changes may need to be reported via
an amended Exporter's Certificate (see Part C below). Check one:
[ ] The Goods and Services contain only U.S. Content: the U.S. Content
Percentage is 100% (i.e., no Foreign Content, Local Costs, or
Excluded Goods and Services (defined below)). Please do not complete
the chart if this box is checked.
[ ] The Goods and Services contain less than 100% U.S. Content. Please
complete the chart if this box is checked.
Definition US$
---- ------------------ ----------------------------------------------------------------------- ----
A. Supply Contract/ The aggregate price of all Goods and Services in the Supply
Purchase Order(s) Contract/Purchase Order(s).
B. Excluded Goods The aggregate price of all Goods and Services that are not
and Services eligible for (or excluded from) Ex-Im Bank support
(e.g., goods not shipped from the U.S.)
B(1)-1
C. Contract Price A minus B
D. Local Costs The aggregate price of all Goods originated/manufactured in the
Purchaser's country and all Services provided by residents of the
Purchaser's country.
E. Net Contract Price C minus D
F. Foreign Content The aggregate cost to the Exporter of any Goods (or components thereof)
that were produced or manufactured outside the U.S.,
Services provided by third country-resident personnel, and
foreign freight costs and foreign insurance included in the Net
Contract Price for Goods exported from the U.S.
(Such amount shall not include any Local Costs.)
▇. ▇.▇. Content E minus F
H. U.S. Content G divided by E, expressed as a percentage.
Percentage %
I. Disbursement Initial Exporter's Certificate: input the lower of (i) 85% and (ii)
Percentage the percentage in H. Amended Exporter's Certificate: input the %
percentage obtained from the Disbursement Percentage
Calculator page (if any).
PART B: GOODS AND SERVICES TO BE SUPPORTED BY EX-IM BANK
We hereby certify, as to ourselves and the Goods and Services covered by the
Ex-Im Bank Credit/Guarantee/Insurance, as follows:
2. 15% Cash Payment. We (i) have received (or will receive) payment for at
least 15% of the Net Contract Price, and/or (ii) have financed (or will
finance) such amount at market rates. We have submitted (or will submit)
evidence of payment of our invoices. (For 100% U.S. Goods and Services,
"Net Contract Price" means the aggregate price of such Goods and
Services.)
3. Invoices and Shipment. We have provided (or will provide) copies of (i)
invoices describing the Goods and Services and (ii) signed, clean, onboard
bills of lading evidencing that the Goods included in the Net Contract
Price have been shipped from the U.S. to the Purchaser's country. For
Services, progress payments for Goods prior to shipment, and/or Local
Costs , the value of the work performed at the time the invoices therefor
are submitted for payment shall equal or exceed the amount so invoiced (or
we have obtained Ex-Im Bank's prior consent to an alternative
arrangement).
4. Suspension and Debarment. We and each of our Principals individually, have
not within the past 3 years been a) debarred, suspended, declared
ineligible from participating in, or voluntarily excluded from
participation in, a Covered Transaction, b) formally proposed for
debarment, with a final determination still pending, c) indicted,
convicted or had a civil
B(1)-2
judgment rendered against us for any of the offenses listed in the
Regulations, d) delinquent on any substantial debts owed to the U.S.
Government or its agencies or instrumentalities as of the date of
execution of this certification; or we have received a written statement
of exception from Ex-Im Bank attached to this certification, permitting
participation in this Covered Transaction despite an inability to make
certifications a) through d) in this paragraph.
We further certify that we have not and will not knowingly enter into any
agreements in connection with the Goods and Services with any individual or
entity that has been debarred, suspended, declared ineligible from participating
in, or voluntarily excluded from participation in a Covered Transaction. All
capitalized terms not defined herein shall have the meanings set forth in the
Government-wide Non-procurement Suspension and Debarment Regulations - Common
Rule (Regulations).
5. Other Payments; Legal Compliance. Without Ex-Im Bank's written consent, a
copy of which is attached, we have not and will not agree to, offer to,
cause to, or arrange for, directly or indirectly, any payment, discount,
allowance, rebate, commission, fee or other payment in connection with the
sales of the Goods and Services under (or obtaining) the Supply
Contract/Purchase Order(s) or Ex-Im Bank Credit/Guarantee/Insurance,
except for a) payment of manufacturing costs or for the purchase of the
Goods, b) the regular remuneration of our regular full-time directors,
officers and employees; c) regular commissions or fees, if any, to our
regular sales agent, broker or representative and readily identifiable on
our books and records as to amount, purpose and recipient; d) any
discounts, allowances, or rebates to the Purchaser that are disclosed in
our invoices; or e) any letter of credit or other fees paid to commercial
banks or any payments made to Ex-Im Bank in connection with the Ex-Im Bank
Credit/Guarantee/Insurance.
In addition, we have not, and will not, engage in any activity in
connection with this transaction that is a violation of the Foreign Corrupt
Practices Act of 1977, 15 U.S.C. ▇▇.▇▇. 78dd-1, et seq. To the best of our
knowledge, the Supply Contract/Purchase Order(s) and the performance by the
parties of their respective obligations thereunder does not violate any
applicable law.
6. Munitions List. Except as described on our attached statement, none of the
Goods and Services are on the U.S. Munitions List (part 121 of Title 22 of
the Code of Federal Regulations).
PART C: CHANGES AND EX-IM BANK RELIANCE
7. Changes to Certifications. With respect to Part A, we will promptly
complete and submit an amended Exporter's Certificate if there has been a
"material change" in the U.S. Content Percentage (together with a copy of
the completed "Disbursement Percentage Calculator" found at
▇▇▇.▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇▇) prior to any further presentation of invoices
for payment. A "material change" in the U.S. Content Percentage occurs if
(a) the U.S. Content Percentage has decreased by more than 5% (as compared
to the U.S. Content Percentage
B(1)-3
reported in the initial Exporter's Certificate) and (b) aggregate foreign
content is over 20% (i.e., the new U.S. Content Percentage is less than
80%).
With respect to Parts B or C, if any of the certifications made therein
become untrue, we will promptly submit an amended Exporter's Certificate, noting
the changes and with any required attachments, prior to any further presentation
of invoices for payment.
8. Ex-Im Bank Reliance. With knowledge that Ex-Im Bank will rely on the
certifications and representations made in this Certificate, we agree we
are liable for any damages suffered by Ex-Im Bank's reliance. We
understand that these certifications are subject to the penalties for
fraud provided in Article 18 U.S.C., Section 1001. We agree that
presentation of invoices for payment under the Ex-Im Bank
Credit/Guarantee/Insurance is a confirmation by us of the information and
certifications made herein. By his signature, the person signing this
Certificate on behalf of the Exporter represents that he is fully
authorized to do so. We agree to provide additional information with
respect to any of the matters covered in this Certificate upon Ex-Im
Bank's reasonable written request.
[EXPORTER]
By: ________________________________
(Authorized Officer or Employee)
Name:
Title:
B(1)-4
INSTRUCTIONS TO EXPORTERS:
Part A: Content
The information provided in Part A will be used to determine the total amount of
Ex-Im Bank guarantee, loan or insurance support for a transaction. Please refer
to Ex-Im Bank's Fact Sheets on Foreign Content, Local Costs, and Ancillary
Services at ▇▇▇▇://▇▇▇.▇▇▇▇.▇▇▇/▇▇▇▇.▇▇▇▇ for a further explanation of Ex-Im
Bank's content and cover policies.
Part B: Goods and Services to be Supported by Ex-Im Bank
"Goods and Services to be Supported by Ex-Im Bank" are those good and services
provided by the Exporter and eligible for coverage under an Ex-Im Bank
Credit/Guarantee/Insurance. If you have any question about what "Goods and
Services" are approved by Ex-Im Bank, please contact your Ex-Im Bank credit
officer. For Long-Term transactions (credit over $10MM or more than 7 years
repayment), such "Goods and Services" are those listed in the current
Acquisition List submitted by the Borrower to Ex-Im Bank.
Initial Exporter's Certificate
The Exporter's Certificate must be completed by the Exporter and presented prior
to the borrower's first request for disbursement related to that exporter's
invoices under the Ex-Im Bank-supported credit. Exporter's Certificates are also
to be completed by U.S. and non-U.S. providers of ancillary services (such as
banking, financial advisor, technical consultant, and legal) that have been
approved by Ex-Im Bank for financing under the Ex-Im Bank
Credit/Guarantee/Insurance.
Amended Exporter's Certificates
If an amended Exporter's Certificate is required pursuant to Section 7 of the
Certificate, the Exporter should check the "Amended Exporter's Certificate" box
at the top of the Certificate and note the change being reflected in the amended
Certificate. The Exporter should contact the lender under an Ex-Im Bank
Guarantee/Insurance transaction, or Ex-Im Bank if an Ex-Im Bank Credit, for
instructions on where to send the Amended Exporter's Certificate.
Please note that a change to Part A (Content) requires the Exporter to attach a
copy of the "Disbursement Percentage Calculator" to the Amended Exporter's
Certificate. The Calculator allows the Exporter to calculate the new
disbursement percentage for the transaction. The Calculator (and instructions)
are found at ▇▇▇▇://▇▇▇.▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇▇. Changes to Sections 4 and 5 of
Part B require the relevant Ex-Im Bank approval to be attached.
Links and Additional Information
For information regarding the Exporter's Certificate (and other helpful facts),
go to ▇▇▇▇://▇▇▇.▇▇▇▇.▇▇▇. Should you have any further questions regarding the
Exporter's Certificate, please call Credit Review and Compliance Division at
(▇▇▇) ▇▇▇-▇▇▇▇. For insurance transactions, please contact your insurance broker
or appropriate Ex-Im Bank regional office.
B(1)-5
CONTENT REPORTS AND AGGREGATE FOREIGN CONTENT CAUSE REPORTS:
For informational and reporting purposes only, Ex-Im Bank requests that
Exporters submit Content Reports and an annual Aggregate Foreign Content Cause
Report. Under Medium-Term transactions a Content Report should be submitted with
the Application for Ex-Im Bank support. Under Long-Term transactions the Content
Report should be submitted with the initial Exporter's Certificate. If at the
completion of the work performed under a Supply Contract/Purchase Order(s), the
foreign content amount changed by one percentage point or more of the value of
the Net Contract Price, Exporters should submit a final revised Content Report
within 60 days. Ex-Im Bank may contact Exporters to reconfirm the information
provided in the Content Report.
Exporters are requested to submit an annual Aggregate Foreign Content Cause
Report containing information about the reasons for foreign content in Supply
Contract/Purchase Orders. The processing or approval of, or disbursements under,
an Ex-Im Bank Credit/Guarantee/Insurance transaction will NOT be affected by the
submission (or not) of Content Reports or Aggregate Foreign Content Cause
Reports.
Content Report EBD-M-58 and Aggregate Foreign Content Cause Report EBD-M-55
forms and instructions can be found at ▇▇▇▇://▇▇▇.▇▇▇▇.▇▇▇. Should you have any
questions regarding the Content Report or Aggregate Foreign Content Cause
Report, please call the Policy Group at (▇▇▇) ▇▇▇-▇▇▇▇.
B(1)-6
REIMBURSEMENT PROCEDURE Annex B
Exhibit 2
REQUEST FOR REIMBURSEMENT TO ▇▇▇▇▇▇▇▇'S ACCOUNT
_____________, 20__
Government Agency Unit
JPMorgan Chase Bank, N.A.,
as Facility Agent
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Export-Import Bank of the United States
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Washington, DC 20571
Attention: Operations Division
Subject: Ex-Im Bank Guarantee No. AP080562XX-Singapore
Chartered Semiconductor Manufacturing Ltd (the "Borrower")
Request for Disbursement No. ____
Ladies and Gentlemen:
In accordance with the terms and conditions of the Ex-Im Bank Facility
Agreement (as amended, modified and supplemented and in effect from time to
time, the "Agreement"), dated as of December 23, 2004, by and among the
Borrower, JPMorgan Chase Bank, National Association, as Facility Agent, JPMorgan
Chase Bank, National Association, as Lender (the "Lender"), and Export-Import
Bank of the United States ("Ex-Im Bank"), we hereby request the Lender to make a
Disbursement under the Guaranteed Credit thereby established in the amount of
US$[__________], with the Reimbursement amount thereof, equal to US$[_______],
being paid to [insert account information for relevant account] and with the
Exposure Fee amount thereof, equal to US$[___________], being paid to Ex-Im
Bank.
We enclose our Itemized Statement of Payments No. ____, dated ____________, 20__
(the "Itemized Statement of Payments").
We hereby certify with respect to the payments made by us for the Goods
and Services specified in Itemized Statement of Payments that:
1. All such payments were made exclusively for the purchase in the United
States of Goods and Services, and such Goods and Services will be used for
lawful purposes in accordance with the terms of the Agreement.
B(2)-1
2. We have not previously requested Disbursements on account of these
payments.
3. Copies of invoices and bills of lading (accompanied by evidence that
the Exporter or Ancillary Services Provider, as the case may be, has been paid)
and other documents required by the "Utilization and Disbursement Procedures"
(set forth in Annex B to the Agreement) relating to the Goods and Services
specified in the attached Itemized Statement of Payments are submitted herewith.
4. All of those goods that have been or will be transported to the
Borrower's Country on ocean vessels have been or will be shipped on vessels of
U.S. registry, except to the extent that a waiver of this requirement has been
obtained from the U.S. Maritime Administration.
5. The Goods and Services covered by the enclosed invoices consist of
services performed for, or goods accepted by, the Borrower.
We further certify that:
(i) we have paid, or caused to be paid, the exact amounts set
forth in the attached Itemized Statement of Payments for the
Goods and Services specified therein;
(ii) we have not, and to the best of our knowledge and belief, the
Exporter(s) (and Ancillary Services Provider(s), if any) have
not, and will not, agree to, offer to, cause to, arrange for
or receive, directly or indirectly, any payment, discount,
allowance, rebate, commission, fee or other payment in
connection with Goods and Services or the Supply Contract(s)
or the Guaranteed Credit, except for (a) payment of
manufacturing costs or for the purchase of the Goods; (b)
regular remuneration of regular full-time directors, officers
and employees; (c) regular commissions or fees, if any, to
regular sales agents, brokers or representatives and readily
identifiable on the relevant party's books and records as to
amount, purpose and recipient; (d) any discounts, allowances,
or rebates that are disclosed in invoices from the Exporter or
Ancillary Services Provider, as the case may be and (e) any
letter of credit or other fees paid to commercial banks or any
payments made to Ex-Im Bank, in either case in connection with
the Guaranteed Credit;
(iii) we have not made, and to the best of our knowledge and belief,
the Exporter(s) (and Ancillary Services Provider(s), if any)
have not made, and will not make, any payment in connection
with the Goods and Services or the Supply Contract(s) or the
Guaranteed Credit to any Person who is debarred, suspended,
declared ineligible, or voluntarily excluded from
participation in procurement or non-procurement transactions
with any United States federal government department or agency
pursuant to any of the Debarment Regulations;
B(2)-2
(iv) as of the date of this request, no event has occurred and is
continuing which constitutes, or but for the requirement of
giving notice or lapse of time, or both, would constitute, an
Event of Default under the Agreement; and
(v) as of the date of this request, the representations and
warranties made by us in Section 9.01 of the Agreement [and
Section 6.03(d)(ii) of the Agreement](2) are true.
Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned thereto in the Agreement.
Very truly yours,
CHARTERED SEMICONDUCTOR
MANUFACTURING LTD
By: ________________________________
(Signature)(3)
Name: ________________________________
(Print)
Title: ________________________________
(Print)
cc: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
JPMorgan Chase Bank, N.A.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Enclosures
Itemized Statement of Payments and supporting documents
------------------------
(2) Insert reference to Section 6.03(d)(ii) of the Agreement for all
Disbursements other than the initial Disbursement.
(3) May only be signed by one (or more, if required) of the Authorized Officers
of the Borrower.
B(2)-3
REIMBURSEMENT PROCEDURE Annex B
Exhibit 2(a)
ITEMIZED STATEMENT OF PAYMENTS
____________, 20__
Ex-Im Bank Guarantee No. AP080562XX-Singapore
Itemized Statement of Payments No. ________
Attachment to Request for Reimbursement No. _______
[Exporter][Ancillary Services Provider]:____________
Supply Contract No(s):_______________
Date of Exporter's Certificate:_______________
Amount of Brief Description of Bill of Lading
Invoice No. Date of Payment Payment(1) (US$) Good/Service(2) Date/No. Remarks
----------- --------------- ---------------- --------------- -------- -------
$_______ TOTAL AMOUNT OF PAYMENTS
$_______ TOTAL AMOUNT OF PAYMENTS IN US$
$_______ REIMBURSEMENT AMOUNT AT ___%(3)
$_______ TOTAL DISBURSEMENTS
-----------------------
(1) If the amount of payment is not for the total invoice value, explain in
Remarks.
(2) Description must match that provided in the Acquisition List.
(3) Total U.S. Invoice Value multiplied by the lesser of: (i) 85%, (ii) the U.S.
Content Percentage from the most recently delivered Exporter's Certificate and
(iii) the Disbursement Percentage (if any) from such Exporter's Certificate.
NOTE: PLEASE COMPLETE ONE PAGE PER EXPORTER (OR ANCILLARY SERVICES PROVIDER)
B(2a)-1
Annex B
Exhibit 3
ANTI-LOBBYING CERTIFICATE
________, 20_
Export-Import Bank of the United States
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Washington, DC 20571
Attention: Operations Division
Subject: Ex-Im Bank Guarantee No. AP080562XX-Singapore
Chartered Semiconductor Manufacturing Ltd (the "Borrower")
Anti-Lobbying Certificate
Ladies and Gentlemen:
The undersigned certifies, to the best of his or her knowledge and belief,
that:
(1) No United States government ("Federal") appropriated funds have been paid or
will be paid, by or on behalf of the undersigned, to any person for influencing
or attempting to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member of
Congress in connection with the awarding of any Federal contract, the making of
any Federal grant, the making of any Federal loan, the entering into of any
cooperative agreement and the extension, continuation, renewal, amendment or
modification of any Federal contract, grant, loan or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be
paid to any person for influencing or attempting to influence an officer or
employee of any agency, a Member of Congress, an officer or employee of Congress
or an employee of a Member of Congress in connection with this Federal contract,
grant, loan or cooperative agreement, the undersigned shall complete and submit
Standard Form-LLL, "Disclosure Form to Report Lobbying" in accordance with its
instructions.
(3) The undersigned shall require that the language of this certification be
included in the award documents for all subawards at all tiers (including
subcontracts, subgrants, and contracts under grants, loans and cooperative
agreements) and that all subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which
reliance was placed when this transaction was made or entered into. Submission
of this certification is a prerequisite for making or entering into this
transaction imposed by Section 1352, Title 31, U.S.C. Any person who fails to
file the required certification shall be subject to a civil penalty of not less
than $10,000 and not more than $100,000 for each such failure.
B(3)-1
[NAME OF EXPORTER/ANCILLARY SERVICES PROVIDER](1)
By:___________________________________________________
(Authorized Officer or Employee)
Name:_________________________________________________
(Print)
Title:________________________________________________
(Print)
Address(2)____________________________________________
____________________________________________
____________________________________________
----------------------------------
(1) Include Dun & Brandstreet Number.
(2) Include Zip Code of company facility that produced the relevant goods or
services.
B(3)-2
Annex B
Exhibit 4
CERTIFICATE AUTHORIZING REIMBURSEMENT
(Goods and Services)
____________ 20__
Government Agency Unit
JPMorgan Chase Bank, N.A.,
as Facility Agent
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Subject: Ex-Im Bank Guarantee No. AP080562XX-Singapore
Chartered Semiconductor Manufacturing Ltd (the "Borrower")
Certificate Authorizing Reimbursement No. [___]
for Goods and Services
Ladies and Gentlemen:
In accordance with the terms and conditions of the Ex-Im Bank Facility Agreement
dated as of December 23, 2004 (the "Agreement"), by and among the Borrower,
JPMorgan Chase Bank, National Association, as Facility Agent, JPMorgan Chase
Bank, National Association, as Lender (the "Lender"), and Export-Import Bank of
the United States ("Ex-Im Bank"), and with the Borrower's Request for
Reimbursement to ▇▇▇▇▇▇▇▇'s Account, we hereby authorize the Lender to make a
Disbursement under the Agreement in the aggregate amount of US$[__________] on
[or before] [____________](1) by paying (i) the applicable Exposure Fee in the
amount of US$[_______] to Ex-Im Bank and (ii) the Reimbursement amount of
US$[___________] to the Borrower at the [_____________] at [complete name and
address of the payee bank].
Further, we hereby acknowledge that such Reimbursement, when so made, together
with the Exposure Fee, when paid, shall constitute a Disbursement under the
Guaranteed Credits, and, as such, together with the interest accrued thereon at
the Guaranteed Interest Rate (as defined in the Ex-Im Bank Guarantee Agreement),
is guaranteed by Ex-Im Bank pursuant to the terms, and subject to the
conditions, of the Ex-Im Bank Guarantee Agreement.
------------------------
(1) Insert date which is 30 days after the date of Certificate Authorizing
Reimbursement B(4)-1
B(4)-1
Capitalized terms used and not defined in this Certificate shall have the
respective meanings specified in the Agreement.
EXPORT-IMPORT BANK OF
THE UNITED STATES
By: _____________________
Name:
Title:
cc: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
JPMorgan Chase Bank, N.A.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
B(4)-2
L/C PROCEDURE Annex B
Exhibit 5
REQUEST FOR LETTER OF CREDIT APPROVAL
Date _________________
Government Agency Unit
JPMorgan Chase Bank, N.A.,
as Facility Agent
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Export-Import Bank of the United States
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Washington, DC 20571
Attention: Operations Division
Subject: Ex-Im Bank Guarantee No. AP080562XX-Singapore
Chartered Semiconductor Manufacturing Ltd (the "Borrower")
Request for Letter of Credit Approval
Ladies and Gentlemen:
In accordance with the terms and conditions of the Ex-Im Bank Facility
Agreement ("Agreement"), dated as of December 23, 2004, by and among the
Borrower, JPMorgan Chase Bank, National Association, as Facility Agent, JPMorgan
Chase Bank, National Association, as Lender, and Export-Import Bank of the
United States ("Ex-Im Bank"), we enclose for your approval three copies of a
proposed Letter of Credit No. ___ ("Proposed L/C"), prepared by JPMorgan Chase
Bank, National Association, as L/C Bank.
Identifying data with respect to the Proposed L/C are as follows:
Beneficiary:
Amount: US$
Expiry Date:
Description of Goods and Services being purchased:
Reference No. from Acquisition List:
B(5)-1
If the terms and conditions of this letter of credit meet with your
approval, please issue a Certificate Approving Letter of Credit in the form of
Exhibit 6 to Annex B to the Agreement.
CERTIFICATE
We hereby certify that:
(i) all the payments to be made under the Proposed L/C will be made exclusively
for the purchase in the United States of Goods and Services, and such will be
used for lawful purposes in accordance with the terms of the Agreement;
(ii) we have not, and to the best of our knowledge and belief, the beneficiary
of the Proposed L/C has not, and will not, agree to, offer to, cause to, arrange
for or receive, directly or indirectly, any payment, discount, allowance,
rebate, commission, fee or other payment in connection with Goods and Services
or the Supply Contract(s) or the Guaranteed Credit, except for (a) payment of
manufacturing costs or for the purchase of the Goods; (b) regular remuneration
of regular full-time directors, officers and employees; (c) regular commissions
or fees, if any, to regular sales agents, brokers or representatives and readily
identifiable on the relevant party's books and records as to amount, purpose and
recipient; (d) any discounts, allowances or rebates that are disclosed in
invoices from the beneficiary of the Proposed L/C and (e) any letter of credit
or other fees paid to commercial banks or any payments made to Ex-Im Bank, in
either case in connection with the Guaranteed Credit;
(iii) we have not made, and to the best of our knowledge and belief, the
beneficiary of the Proposed L/C has not made, and will not make, any payment in
connection with the Goods and Services or the Supply Contract(s) or the
Guaranteed Credit to any Person who is debarred, suspended, declared ineligible,
or voluntarily excluded from participation in procurement or non-procurement
transactions with any United States federal government department or agency
pursuant to any of the Debarment Regulations;
(iv) as of the date of this request, no event has occurred and is continuing
which constitutes, or but for the requirement of the giving of notice or lapse
of time, or both, would constitute, an Event of Default under the Agreement; and
(v) as of the date of this request, the representations and warranties made by
us in the Agreement are true.
B(5)-2
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned thereto in the Agreement.
Very truly yours,
CHARTERED SEMICONDUCTOR
MANUFACTURING LTD
By: ________________________________
(Signature)(1)
Name: ________________________________
(Print)
Title: ________________________________
(Print)
cc: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
JPMorgan Chase Bank, N.A.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Enclosures
3 copies of Proposed L/C
1 copy of supplier's pro forma invoice,
purchase contract, or other document
covering purchase
[1 originally executed Exporter's Certificate (Exhibit 1)] [Delete if
previously provided in connection with previous Utilization
or Disbursement]
[1 originally executed Anti-Lobbying Certificate (Exhibit 3)][Delete if
previously provided in connection with previous Utilization
or Disbursement]
--------------------------
(1) May only be signed by one(or more, if required) of the Authorized Officers
of the Borrower.
B(5)-3
L/C PROCEDURE Annex B
Exhibit 6
CERTIFICATE APPROVING LETTER OF CREDIT
____________ 20__
Government Agency Unit
JPMorgan Chase Bank, N.A.,
as L/C Bank
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Subject: Ex-Im Bank Guarantee No. AP080562XX-Singapore
Chartered Semiconductor Manufacturing Ltd (the "Borrower")
Certificate Approving Letter of Credit No. _____
Ladies and Gentlemen:
In accordance with the terms and conditions of the Ex-Im Bank Facility Agreement
dated as of December 23, 2004 (the "Agreement"), between the Borrower, JPMorgan
Chase Bank, National Association, as Facility Agent, JPMorgan Chase Bank,
National Association, as Lender (the "Lender"), and the Export-Import Bank of
the United States ("Ex-Im Bank"), and with the Borrower's Request for Letter of
Credit Approval, we hereby approve the [issuance, confirmation or advice] by the
L/C Bank of Letter of Credit No. ___ (the "Letter of Credit"), in the face
amount of US$_____________ and guaranteed by Ex-Im Bank to the maximum amount of
US$_____________.
We hereby acknowledge that payments made under the Letter of Credit in
accordance with its terms constitute Disbursements under the Credit, and,
together with interest accrued thereon at the Guaranteed Interest Rate (as
defined in Ex-Im Bank Guarantee Agreement No. AP080562XX-Singapore dated as of
December 23, 2004, between the Lender and Ex-Im Bank (the "Ex-Im Bank Guarantee
Agreement")), are guaranteed by Ex-Im Bank as provided in the Ex-Im Bank
Guarantee Agreement.
The defined terms used in this Certificate shall have the respective meanings
specified in the Agreement.
B(6)-1
EXPORT-IMPORT BANK OF THE
UNITED STATES
-----------------------------
By: (Signature)
-----------------------------
Name: (Print)
-----------------------------
Title: (Print)
cc: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
JPMorgan Chase Bank, N.A.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
B(6)-2
L/C PROCEDURE Annex B
Exhibit 7
REQUEST FOR EX-IM BANK APPROVAL OF AMENDMENT TO LETTER OF CREDIT
_____________, 20__
Government Agency Unit
JPMorgan Chase Bank, N.A.,
as Facility Agent
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Export-Import Bank of the United States
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇.▇.
Washington, DC 20571
Attention: Operations Division
Subject: Ex-Im Bank Guarantee No. AP080562XX-Singapore
Chartered Semiconductor Manufacturing Ltd (the "Borrower")
Request to Amend Letter of Credit No. ___
Ladies and Gentlemen:
In accordance with the terms and conditions of the Ex-Im Bank Facility Agreement
(as amended, modified and supplemented and in effect from time to time, the
"Agreement"), dated as of December 23, 2004, by and among the Borrower, JPMorgan
Chase Bank, National Association, as Facility Agent, JPMorgan Chase Bank,
National Association, as Lender, and Export-Import Bank of the United States
("Ex-Im Bank"), we enclose for your approval three (3) copies of a proposed
amendment ("Amendment") to Letter of Credit No. ____ (the "Letter of Credit"),
prepared by JPMorgan Chase Bank, National Association. The Letter of Credit
needs to be amended because [list reason(s)].(1)
If this Amendment meets with your approval, please issue your Certificate
Approving Amendment to Letter of Credit with respect to this Letter of Credit,
as amended (the "Amended L/C").
CERTIFICATE
We hereby certify that:
---------------------
(1) Describe the facts or circumstantances tha justify the amendment.
B(7)-1
(i) all the payments to be made under the Amended L/C will be made exclusively
for the purchase in the United States of Goods and Services, and such will be
used for lawful purposes in accordance with the terms of the Agreement;
(ii) we have not, and to the best of our knowledge and belief, the beneficiary
of the Amended L/C has not, and will not, agree to, offer to, cause to, arrange
for or receive, directly or indirectly, any payment, discount, allowance,
rebate, commission, fee or other payment in connection with Goods and Services
or the Supply Contract(s) or the Guaranteed Credit, except for (a) payment of
manufacturing costs or for the purchase of the Goods; (b) regular remuneration
of regular full-time directors, officers and employees; (c) regular commissions
or fees, if any, to regular sales agents, brokers or representatives and readily
identifiable on the relevant party's books and records as to amount, purpose and
recipient; (d) any discounts, allowances or rebates that are disclosed in
invoices from the beneficiary of the Amended L/C and (e) any letter of credit or
other fees paid to commercial banks or any payments made to Ex-Im Bank, in
either case in connection with the Guaranteed Credit;
(iii) we have not made, and to the best of our knowledge and belief, the
beneficiary of the Amended L/C has not made, and will not make, any payment in
connection with the Goods and Services or the Supply Contract(s) or the
Guaranteed Credit to any Person who is debarred, suspended, declared ineligible,
or voluntarily excluded from participation in procurement or non-procurement
transactions with any United States federal government department or agency
pursuant to any of the Debarment Regulations;
(iv) as of the date of this request, no event has occurred and is continuing
which constitutes, or but for the requirement of the giving of notice or lapse
of time, or both, would constitute, an Event of Default under the Agreement; and
(v) as of the date of this request, the representations and warranties made by
us in the Agreement are true.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned thereto in the Agreement.
Very truly yours,
CHARTERED SEMICONDUCTOR
MANUFACTURING LTD
By: ___________________________________
(Signature)(2)
Name: _________________________________
(Print)
Title: ________________________________
(Print)
-------------------------
(2) May only be signed by one (or more, if required) of the Authorized Officers
of the Borrower.
B(7)-2
cc: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
JPMorgan Chase Bank, N.A.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Enclosures
3 copies of Amendment
1 copy of supply contract, amended supply contract or other document
evidencing need for amendment
B(7)-3
L/C PROCEDURE Annex B
Exhibit 8
CERTIFICATE APPROVING AMENDMENT TO LETTER OF CREDIT
Date_________________
Government Agency Unit
JPMorgan Chase Bank, N.A.,
as L/C Bank
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Subject: Ex-Im Bank Guarantee No. AP080562XX-Singapore
Chartered Semiconductor Manufacturing Ltd (the "Borrower")
Certificate Approving Amendment to Letter of Credit No. ______
Ladies and Gentlemen:
In accordance with the terms and conditions of the Ex-Im Bank Facility
Agreement (as amended, modified and supplemented and in effect from time to
time, the "Agreement"), dated as of December 23, 2004, by and among the
Borrower, JPMorgan Chase Bank, National Association, as Facility Agent, JPMorgan
Chase Bank, National Association, as Lender (the "Lender"), and Export-Import
Bank of the United States ("Ex-Im Bank"), and with the Borrower's Request for
Ex-Im Bank Approval of Amendment to Letter of Credit, we hereby approve the
proposed amendment to Letter of Credit No. _____ (the "Letter of Credit").
We hereby acknowledge that all payments made under the amended Letter of
Credit in accordance with its terms constitute Disbursements under the
Guaranteed Credit, and, together with accrued interest thereon at the Guaranteed
Interest Rate (as defined in Ex-Im Bank Guarantee Agreement No.
AP080562XX-Singapore dated as of December 23, 2004, between the Lender and Ex-Im
Bank (the "Ex-Im Bank Guarantee Agreement")), are guaranteed by Ex-Im Bank as
provided in the Ex-Im Bank Guarantee Agreement.
The defined terms used in this Certificate shall have the respective meanings
specified in the Agreement.
B(8)-1
EXPORT-IMPORT BANK OF THE
UNITED STATES
By:_________________________________
(Signature)
Name:_______________________________
(Print)
Title:______________________________
(Print)
cc: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
JPMorgan Chase Bank, N.A.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
B(8)-2
L/C PROCEDURE Annex B
Exhibit 9
REQUEST FOR FACILITY AGENT APPROVAL OF
AMENDMENT TO LETTER OF CREDIT
Government Agency Unit
JPMorgan Chase Bank, N.A.,
as Facility Agent
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Subject: Ex-Im Bank Guarantee No. AP080562XX-Singapore
Chartered Semiconductor Manufacturing Ltd (the "Borrower")
Request for Amendment to Letter of Credit No. ___
Ladies and Gentlemen:
In accordance with the terms and conditions of the Ex-Im Bank Facility Agreement
dated as of December 23, 2004 (the "Agreement"), by and among the Borrower,
JPMorgan Chase Bank, National Association, as Facility Agent (the "Facility
Agent"), JPMorgan Chase Bank, National Association, as Lender, and Export-Import
Bank of the United States ("Ex-Im Bank"), we enclose for approval by the
Facility Agent three (3) copies of a proposed amendment (the "Amendment") to
Letter of Credit No. ______ (the "Letter of Credit"), prepared by JPMorgan Chase
Bank, National Association, as L/C Bank.
The Amendment is requested in order to (place an "x" next to each applicable
request):
[ ] Allow sufficient time for the presentation of all documents and the making
of all Letter of Credit disbursements by extending the expiry date to the
earlier of: (i) ________________ or (ii) the expiry of the relevant
Availability Period deemed by Ex-Im Bank to be effective under the Credit;
[ ] Extend the final shipment date to the earlier of: (i) _______________ or
(ii) the Letter of Credit's expiry date;
[ ] Permit partial shipment(s);
[ ] Permit transhipments in accordance with the provisions of 46
USC.Section.1241-1 (Public Resolution No. 17 of the 73rd Congress of the
United States, as amended);
[ ] Permit shipment(s) by any airline rather than ocean vessel; we acknowledge
that air waybill(s) will be required with respect to such shipment(s)
instead of ocean bill(s) of lading;
[ ] Permit a reduction of the Letter of Credit's face amount; we enclose each
beneficiary's consent to this request;
B(9)-1
[ ] Permit "on-deck" shipment(s);
[ ] Permit a change in the address of [Name of Beneficiary], a beneficiary, to
the following street address located in the United States:
------------------------------------
------------------------------------
------------------------------------
------------------------------------.
[ ] Permit ocean shipment(s); we acknowledge that clean, signed, on-board
ocean bill(s) of lading will be required with respect to such shipment(s),
and that such bill(s) of lading will evidence shipment(s) on ocean
vessel(s) of either (i) U.S. registry or (ii) non-U.S. registry pursuant
to a MARAD waiver of the provisions of 46 USC.Section 1241-1 (Public
Resolution No. 17 of the 73rd Congress of the United States, as amended);
[ ] Permit the following language or spelling changes:
-------------------------------------
-------------------------------------
-------------------------------------.
We certify that the requested changes (x) will not constitute or give rise
to a material change in the terms and conditions of the Letter of Credit,
and (y) are requested in order to: (i) correct a typographical error; (ii)
correct an omission; or (iii) clarify otherwise ambiguous language:
[ ] Permit changes made on account of requirements for the following
consularized document(s):
--------------------------------
--------------------------------
--------------------------------.
We certify that the requested change(s) shall not result in the
modification or elimination of a commercial invoice, which we recognize is
a necessary document for presentation;
[ ] Permit acceptance of "stale" documents or documents that are presented or
are to be presented later than 21 calendar days from the related shipment
date, provided that such documents are dated no earlier than 9 January
2001;
B(9)-2
[ ] Permit the change of either (i) the originating port or originating
airport to a different U.S. port or U.S. airport; or (ii) the port of
destination or airport of destination to a different port located in the
Borrower's Country or a different airport located in the Borrower's
Country;
[ ] Permit changes in the number of copies of documents to be presented by a
beneficiary, except that such change shall not result in the deletion or
modification in the terms of a document required for presentation.
The Letter of Credit needs to be amended because [list reason(s)].(1)
If this Amendment is acceptable to the Facility Agent, please approve the
amendment of the Letter of Credit in accordance with the terms of this request
and the UCP (the "Amended L/C").
---------------------------
(1) Describe the facts or circumstances that justify the amendment.
B(9)-3
CERTIFICATE
We hereby certify that:
(i) all the payments to be made under the Amended L/C will be made exclusively
for the purchase in the United States of Goods and Services, and such will be
used for lawful purposes in accordance with the terms of the Agreement;
(ii) we have not, and to the best of our knowledge and belief, the beneficiary
of the Amended L/C has not, and will not, agree to, offer to, cause to, arrange
for or receive, directly or indirectly, any payment, discount, allowance,
rebate, commission, fee or other payment in connection with Goods and Services
or the Supply Contract(s) or the Guaranteed Credit, except for (a) payment of
manufacturing costs or for the purchase of the Goods; (b) regular remuneration
of regular full-time directors, officers and employees; (c) regular commissions
or fees, if any, to regular sales agents, brokers or representatives and readily
identifiable on the relevant party's books and records as to amount, purpose and
recipient; (d) any discounts, allowances or rebates that are disclosed in
invoices from the beneficiary of the Amended L/C and (e) any letter of credit or
other fees paid to commercial banks or any payments made to Ex-Im Bank, in
either case in connection with the Guaranteed Credit;
(iii) we have not made, and to the best of our knowledge and belief, the
beneficiary of the Amended L/C has not made, and will not make, any payment in
connection with the Goods and Services or the Supply Contract(s) or the
Guaranteed Credit to any Person who is debarred, suspended, declared ineligible,
or voluntarily excluded from participation in procurement or non-procurement
transactions with any United States federal government department or agency
pursuant to any of the Debarment Regulations;
(iv) as of the date of this request, no event has occurred and is continuing
which constitutes, or but for the requirement of the giving of notice or lapse
of time, or both, would constitute, an Event of Default under the Agreement; and
(v) as of the date of this request, the representations and warranties made by
us in the Agreement are true.
B(9)-4
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned thereto in the Agreement.
Very truly yours,
Chartered Semiconductor Manufacturing Ltd
-----------------------------------
By: (Signature)
-----------------------------------
Name: (Print)
-----------------------------------
Title: (Print)
cc: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
JPMorgan Chase Bank, N.A.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Enclosures
3 copies of proposed Amendment to L/C prepared by L/C Bank
1 copy of amended Supply Contract, purchase order or other document evidencing
need for amendment
B(9)-5
L/C PROCEDURE Annex B
Exhibit 10
NOTICE OF LETTER OF CREDIT AMENDMENT
____________ 20__
Export-Import Bank of the United States
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Washington, DC 20571
Attention: Operations Division
Subject: Ex-Im Bank Guarantee No. AP080562XX-Singapore
Chartered Semiconductor Manufacturing Ltd (the "Borrower")
Certificate Approving Letter of Credit No. ______
Ladies and Gentlemen:
In accordance with the terms and conditions of the Ex-Im Bank Facility Agreement
dated as of December 23, 2004 (the "Agreement"), by and among the Borrower,
JPMorgan Chase Bank, National Association, as Facility Agent, JPMorgan Chase
Bank, National Association, as Lender, and Export-Import Bank of the United
States ("Ex-Im Bank"), we hereby notify you of an amendment to Letter of Credit
No. ______ (the "Letter of Credit") approved by us and by JPMorgan Chase Bank,
National Association, as L/C Bank, in accordance with the terms of the
Borrower's Request for Facility Agent Approval of Amendment to Letter of Credit,
dated as of ____________ 20__ (the "Borrower's Request") and the UCP. Enclosed
herewith are copies of the Borrower's Request and its accompanying documents,
along with a copy of the amendment of the Letter of Credit, as approved (the
"Amended L/C").
The Amended L/C was approved in order to (place an "x" next to each applicable
change):
[ ] Allow sufficient time for the presentation of all documents and the making
of all Letter of Credit disbursements by extending the expiry date to the
earlier of: (i) ________________ or (ii) the expiry of the relevant
Availability Period deemed by Ex-Im Bank to be effective under the Credit;
[ ] Extend the final shipment date to the earlier of: (i) _______________ or
(ii) the Letter of Credit's expiry date;
[ ] Permit partial shipment(s);
[ ] Permit transhipments in accordance with the provisions of 46
USC.Section 1241-1 (Public Resolution No. 17 of the 73rd Congress of the
United States, as amended);
B(10)-1
[ ] Permit shipment(s) by any airline rather than ocean vessel; we acknowledge
that air waybill(s) will be required with respect to such shipment(s)
instead of ocean bill(s) of lading;
[ ] Permit a reduction of the Letter of Credit's face amount; we enclose each
beneficiary's consent to this request;
[ ] Permit "on-deck" shipment(s);
[ ] Permit a change in the address of [Name of Beneficiary], a beneficiary, to
the following street address located in the United States:
------------------------------------
------------------------------------
------------------------------------
------------------------------------;
[ ] Permit ocean shipment(s); we acknowledge that clean, signed, on-board
ocean bill(s) of lading will be required with respect to such shipment(s),
and that such bill(s) of lading will evidence shipment(s) on ocean
vessel(s) of either (i) U.S. registry or (ii) non-U.S. registry pursuant
to a MARAD waiver of the provisions of 46 USC.Section 1241-1 (Public
Resolution No. 17 of the 73rd Congress of the United States, as amended);
[ ] Permit the following language or spelling changes:
------------------------------------
------------------------------------
------------------------------------;
We certify that the requested changes (x) will not constitute or give rise
to a material change in the terms and conditions of the Letter of Credit,
and (y) are requested in order to: (i) correct a typographical error; (ii)
correct an omission; or, (iii) clarify otherwise ambiguous language;
[ ] Permit changes made on account of requirements for the following
consularized document(s):
--------------------------------
--------------------------------
--------------------------------.
B(10)-2
We certify that the requested change(s) shall not result in the
modification or elimination of a commercial invoice, which we recognize is
a necessary document for presentation;
[ ] Permit acceptance of "stale" documents or documents that are presented or
are to be presented later than 21 calendar days from the related shipment
date, provided that such documents are dated no earlier than 9 January
2001;
[ ] Permit the change of either (i) the originating port or originating
airport to a different U.S. port or U.S. airport; or (ii) the port of
destination or airport of destination to a different port located in the
Borrower's Country or a different airport located in the Borrower's
Country;
[ ] Permit changes in the number of copies of documents to be presented by a
beneficiary, except that such change shall not result in the deletion or
modification in the terms of a document required for presentation.
The reason(s) for amending the Letter of Credit are set forth in the Borrower's
Request.
B(10)-3
CERTIFICATE
We hereby certify that:
1. The Borrower's Request complies in form and substance with Exhibit 9 to Annex
B of the Agreement, and that the Borrower has made all certifications set forth
therein; and
2. Without independent inquiry and relying solely upon the evidence(s) of
authority and specimen signature(s) provided by the Borrower and accepted by
Ex-Im Bank in accordance with the terms and conditions of the Agreement or any
amendment thereto, the signature(s) appearing on the Borrower's Request
correspond to the evidence(s) of authority and specimen signature(s) in effect
on the date of such ▇▇▇▇▇▇▇▇'s Request.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned thereto in the Agreement.
Very truly yours,
JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION,
as Facility Agent
--------------------------------
By: (Signature)
--------------------------------
Name: (Print)
--------------------------------
Title: (Print)
Enclosures
1 copy of the Borrower's Request and attachments thereto
1 copy of the Amended L/C
B(10)-4
ANNEX C-1
OPERATIONS REVIEW NOTICE
____________, 20__
Export-Import Bank of the United States
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Washington, DC 20571
Attention: Operations Division
Subject: Ex-Im Bank Credit No. AP080562XX-Singapore
Chartered Semiconductor Manufacturing Ltd ("Borrower")
Operations Review Notice No. ______
Disbursement Date: ________________
Ladies and Gentlemen:
This Operations Review Notice (the "Operations Review Notice") is being
provided pursuant to Section [3.03(c) / 3.04(c)]1 of the Ex-Im Bank Facility
Agreement (as amended, modified and supplemented and in effect from time to
time, the "Agreement"), dated as of December 23, 2004, by and among the
Borrower, JPMorgan Chase Bank, National Association, as Facility Agent (the
"Facility Agent"), JPMorgan Chase Bank, National Association, as Lender, and
Export-Import Bank of the United States. Unless otherwise defined herein, all
capitalized terms in this Operations Review Notice have the meanings assigned to
those terms in the Agreement.
We have reviewed the documents required to be delivered pursuant to the
Utilization and Disbursement Procedures set forth in Annex B to the Agreement
(each of which is attached hereto and set forth on Schedule 1 hereto), and
hereby notify you that such documents are complete in all respects and comply
with the applicable conditions precedent set forth in Section 6 of the Agreement
[other than in the following respects].(2)
We hereby notify you that the Request for Reimbursement to ▇▇▇▇▇▇▇▇'s
Account and the accompanying documentation [do not] [state] that a Default, or
Event of Default, has occurred; and, in the Facility Agent's judgment, taking
into account such information of which the Responsible Officer has actual
knowledge at the time that [it is apparent that a Default or
---------------------
(1) Select appropriate Section reference.
(2) Specify any unresolved omissions or deficiencies in the Submitted Documents
or non-compliance with any conditions precedent.
C1-1
Event of Default has occurred and is continuing] [it is not apparent that a
Default or Event of Default has occurred and is continuing](3).
Very truly yours,
JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION,
as Facility Agent
By:______________________________
(Signature)
Name:____________________________
(Print)
Title:___________________________
(Print)
Enclosures
--------------------------------
(3) Choose the appropriate alternative and specify a Default or Event of
Default, if applicable.
C1-2
ANNEX C-2
DISBURSEMENT REVIEW NOTICE
____________, 20__
Export-Import Bank of the United States
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Washington, DC 20571
Attention: Asset Management Division
Subject: Ex-Im Bank Credit No. AP080562XX-Singapore
Chartered Semiconductor Manufacturing Ltd ("Borrower")
Disbursement Review Notice No. ______
Disbursement Date: ____________
Ladies and Gentlemen:
This Disbursement Review Notice (this "Disbursement Review Notice") is
being provided pursuant to Section [3.04(c) / 3.05(c)](1) of the Ex-Im Bank
Facility Agreement (as amended, modified and supplemented and in effect from
time to time, the "Agreement"), dated as of December 23, 2004, by and among the
Borrower, JPMorgan Chase Bank, National Association, as Facility Agent (the
"Facility Agent"), JPMorgan Chase Bank, National Association, as Lender, and
Export-Import Bank of the United States. Unless otherwise defined herein, all
capitalized terms in this Disbursement Review Notice have the meanings assigned
to those terms in the Agreement.
We have reviewed the Disbursement documents required to be delivered
pursuant to Sections 3.02(a), [6.01 / 6.02 / 6.04] and 6.03 of the Agreement (as
applicable) (each of which is attached hereto and set forth on Schedule 1
hereto), and hereby notify you that such documents are complete in all respects
and comply with the specified requirements of each condition precedent to
Disbursement [other than in the following respects].(2)
We have reviewed the other required conditions to be satisfied pursuant to
the aforesaid provisions of the Agreement in accordance with the procedures
established therefore in Section 3 of the Agreement. On that basis, and without
in any way limiting any other provision of the Agreement, we hereby further
notify you that there are no unresolved omissions or deficiencies
-------------------------
(1) Select appropriate section reference.
(2) Specify any non-compliance witeh any conditions precendent.
C2-1
in any of such conditions [other than in the following respects] of which the
Responsible Officer has actual knowledge.(3)
We hereby notify you that the Notice of Borrowing and the accompanying
documentation [do not] [state] that a Default or Event of Default has occurred;
and, in the Facility Agent's judgment, taking into account such information of
which the Responsible Officer has actual knowledge at the time that [it is
apparent that a Default or Event of Default has occurred and is continuing] [it
is not apparent that a Default or Event of Default has occurred and is
continuing](4).
Very truly yours,
JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION,
as Facility Agent
By:_______________________________
(Signature)
Name:_____________________________
(Print)
Title:____________________________
(Print)
Enclosures
---------------------------
(3) Specify any nno-compliance with any non-documentary condition precedent to
Desbursement actually known to the Responsible Officer.
(4) Choose the appropriate alternative and specify a Default of Event of
Default, if applicable.
C2-2
ANNEX C-3
UTILIZATION CONDITIONS REVIEW NOTICE
____________, 20__
Export-Import Bank of the United States
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Washington, DC 20571
Attention: Asset Management Division
Subject: Ex-Im Bank Credit No. AP080562XX-Singapore
Chartered Semiconductor Manufacturing Ltd ("Borrower")
Utilization Conditions Review Notice No. ______
Ladies and Gentlemen:
This Utilization Conditions Review Notice (the "Utilization Conditions
Review Notice") is being provided pursuant to Section 3.03(d) of the Ex-Im Bank
Facility Agreement (as amended, modified and supplemented and in effect from
time to time, the "Agreement"), dated as of December 23, 2004, by and among the
Borrower, JPMorgan Chase Bank, National Association, as Facility Agent (the
"Facility Agent"), JPMorgan Chase Bank, National Association, as Lender, and
Export-Import Bank of the United States. Unless otherwise defined herein, all
capitalized terms in this Utilization Conditions Review Notice have the meanings
assigned to those terms in the Agreement.
We have reviewed the Disbursement documents required to be delivered in
connection with the requested Utilization (each of which is attached hereto and
set forth on Schedule 1 hereto), and hereby notify you that such documents are
complete in all respects and comply with each of the requirements set forth in
Section 3.03 of the Agreement [and with the requirements set forth in Sections
[6.01 / 6.02 ] and 6.03 (if the initial Utilization occurs before the initial
Disbursement)] [other than in the following respects]).(1)
We have reviewed the other conditions to be satisfied pursuant to the
aforesaid provisions of the Agreement. On that basis, and without limiting any
other provision of the Agreement, we hereby further notify you that there are no
unresolved omissions or deficiencies in any of such conditions of which the
Responsible Officer has actual knowledge [other than in the following respects].
We further notify you that we have delivered the Operations Review Notice
to the Operations Division in accordance with Section 3.03(c) of the Agreement.
------------------------
(1) Specify any unresolved omissions or deficiencies in the attached documents
or non-compliance with any relevant conditions.
C3-1
We hereby notify you that the documents attached hereto [do not] [state]
that a Default or Event of Default has occurred; and in the Facility Agent's
judgment, taking into account such information of which the Responsible Officer
has actual knowledge at the time that [it is apparent that a Default or Event of
Default has occurred and is continuing] [it is not apparent that a Default or
Event of Default has occurred and is continuing](2).
Very truly yours,
JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION,
as Facility Agent
By:______________________________
(Signature)
Name:____________________________
(Print)
Title:___________________________
(Print)
Enclosures
--------------------------
(2) Choose the appropriate alternative and specify a Default or Event of
Default, if applicable.
C(3)-2
ANNEX D
INITIAL ACQUISITION LIST
[ATTACHED]
D-1
ANNEX E
LENDER TRANSFER AGREEMENT
To: JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Facility Agent
From: [THE EXISTING LENDER] (the "Existing Lender") and [THE NEW LENDER] (the
"New Lender")
Date: [ ]
Ex-Im Bank Facility Agreement dated as of December 23, 2004 (the
"Agreement")
We refer to the Agreement. This is a Lender Transfer Agreement.
1. The Existing Lender transfers by novation to the New Lender the Existing
▇▇▇▇▇▇'s rights and obligations referred to on the reverse in accordance with
the terms of the Agreement.
2. The proposed date for transfer is [ ].
3. The administrative details of the New Lender for the purposes of the
Agreement are set out on the reverse of this Lender Transfer Agreement.
4. This Lender Transfer Agreement and all matters arising out of or relating in
any way whatsoever (whether in contract, tort or otherwise) to this Lender
Transfer Agreement shall be governed by, and construed in accordance with, the
law of the State of New York, United States of America.
THE TERMS SET FORTH ABOVE AND ON THE REVERSE SIDE HEREOF ARE HEREBY AGREED TO:
[NAME OF TRANSFEROR], as Transferor
By:__________________________________________________
Name:
Title:
[NAME OF TRANSFEREE], as Transferee
By:__________________________________________________
Name:
Title:
E-1
Reverse of Lender Transfer Agreement
Ex-Im Bank Facility Agreement dated as of December 23, 2004
with Chartered Semiconductor Manufacturing Ltd, as Borrower
Date of this Lender
Transfer Agreement: _____________________________
Legal Name of Transferor: _____________________________
Legal Name of Transferee: _____________________________
Transferee's Address for Notices: _____________________________
_____________________________
_____________________________
Effective Date of Assignment ("Assignment Date"):_____________________________
Description of Assigned Interest
Facility Description Portion Held By Transferor Percentage thereof
Immediately Prior to Transferred by the
Assignment Transferor to the Transferee
E-2
ANNEX F-1
DOCUMENTARY APPROVAL
____________ 20__
Government Agency Unit
JPMorgan Chase Bank, N.A.,
as Facility Agent
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Ladies and Gentlemen:
This documentary approval ("Documentary Approval") is being provided
pursuant to Section 3.05(b) of the Ex-Im Bank Facility Agreement dated as of
December 23, 2004 (the "Agreement"), among Chartered Semiconductor Manufacturing
Ltd, as Borrower, JPMorgan Chase Bank, National Association, as Facility Agent,
JPMorgan Chase Bank, National Association, as Lender, and Export-Import Bank of
the United States ("Ex-Im Bank"). Unless otherwise defined herein, all
capitalized terms used in this Documentary Approval shall have the respective
meanings specified in the Agreement.
Reference is made to the Letter of Credit No. [ ] issued on [__________
20__] in the amount of [$__________] pursuant to the Agreement. JPMorgan Chase
Bank, National Association, as the L/C Bank, hereby confirms that all
documentation required by the Letter of Credit has been provided by the
beneficiary of the Letter of Credit to the L/C Bank in form and substance
satisfactory to the L/C Bank and that the L/C Bank is prepared to make the
requested L/C Payment subject only to the receipt of the L/C Payment Approval
Certificate from the Facility Agent.
JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION,
as L/C Bank
By: __________________________
Name:
Title:
cc: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
JPMorgan Chase Bank, N.A.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
F1-1
ANNEX F-2
L/C PAYMENT APPROVAL CERTIFICATE
____________ 20__
Government Agency Unit
JPMorgan Chase Bank, N.A.,
as Facility Agent
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Ladies and Gentlemen:
This letter of credit payment approval certificate (the "L/C Payment
Approval Certificate") is being provided pursuant to Section 3.05(d) of the
Ex-Im Bank Facility Agreement dated as of December 23, 2004 (the "Agreement"),
among Chartered Semiconductor Manufacturing Ltd, as Borrower, JPMorgan Chase
Bank, National Association, as Facility Agent, the Lender named therein and the
Export-Import Bank of the United States ("Ex-Im Bank"). Unless otherwise defined
herein, all capitalized terms in this L/C Payment Approval Certificate have the
meaning assigned to those terms in the Agreement.
Reference is made to the Letter of Credit No. [ ] issued on [__________
20__], in the amount of [$__________] pursuant to the Agreement. Ex-Im Bank
hereby certifies that all conditions precedent to the payment of the L/C Payment
requested in the Notice of Borrowing dated [__________ 20__], and delivered to
Ex-Im Bank by the Borrower have, to the extent requiring Ex-Im Bank approval,
been satisfied or waived by Ex-Im Bank.
EXPORT-IMPORT BANK OF
THE UNITED STATES
By: __________________________
Name:
Title:
cc: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
JPMorgan Chase Bank, N.A.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
F2-1