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EXHIBIT 10.25
DATED JULY 1, 1998
CHARTERED SILICON PARTNERS PTE LTD
AS BORROWER
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
EDB INVESTMENTS PTE LTD
HEWLETT PACKARD EUROPE B.V.
AS SHAREHOLDERS
- AND -
ABN AMRO BANK N.V., SINGAPORE BRANCH
AS AGENT
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SHAREHOLDERS UNDERTAKING
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▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, #▇▇-▇▇,
▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
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C O N T E N T S
CLAUSE HEADING PAGE
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1. INTERPRETATION 1
2. UNDERTAKINGS BY SHAREHOLDERS 4
3. SUBORDINATION 6
4. AGREEMENT BY BORROWER AND SHAREHOLDERS 7
5. REPRESENTATIONS AND WARRANTIES 8
6. UNDERTAKINGS 12
7. PAYMENTS 13
8. NATURE OF RIGHTS AND OBLIGATIONS 15
9. EXPENSES 17
10. BENEFIT OF AGREEMENT 17
11. WAIVERS 18
12. COMMUNICATIONS 19
13. PARTIAL INVALIDITY 19
14. GOVERNING LAW AND JURISDICTION 19
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T H I S A G R E E M E N T is made on July 1, ▇▇▇▇
▇ ▇ ▇ ▇ ▇ ▇ N:-
(1) CHARTERED SILICON PARTNERS PTE LTD (the "Borrower");
(2) CHARTERED SEMICONDUCTOR MANUFACTURING LTD ("CSM"), EDB
INVESTMENTS PTE LTD ("EDBI") and HEWLETT PACKARD EUROPE B.V.
("HPE"); and
(3) ABN AMRO BANK N.V., SINGAPORE BRANCH, as agent for and on
behalf of the Banks defined below (in such capacity, the
"Agent", which expression shall include any of its successors
in such capacity).
W H E R E A S:-
(A) By a Credit Agreement (the "Credit Agreement") dated 12th
March, 1998 made between (1) the Borrower, as borrower, (2) ABN AMRO Bank N.V.,
Singapore Branch, Bayerische Landesbank Girozentrale, Singapore Branch,
Citibank, N.A., Singapore Branch, Overseas Union Bank Limited and The Sumitomo
Bank, Limited, Singapore Branch, as arrangers, (3) the Guarantor Banks named
therein (the "Guarantor Banks"), as guarantor banks, (4) the Lending Banks named
therein (the "Lending Banks"), as lending banks, and (5) the Agent, as agent,
the Guarantor Banks agreed to grant to the Borrower a S$236,800,000 guarantee
facility and the Lending Banks agreed to grant to the Borrower a US$143,200,000
term loan facility, upon the terms and subject to the conditions of the Credit
Agreement.
(B) (1) CSM is the legal and beneficial owner of 51 per cent. of the
issued shares in the capital of the Borrower.
(2) EDBI is the legal and beneficial owner of 19 per cent. of the
issued shares in the capital of the Borrower.
(3) Hewlett Packard Company is the legal and beneficial owner of
99.8 per cent. of the issued shares in the capital of Hewlett Packard World
Trade Services Inc. ("HPWTS") and HPWTS is the legal and beneficial owner of 100
per cent. of the issued shares in the capital of HPE and HPE is the legal and
beneficial owner of 30 per cent. of the issued shares in the capital of the
Borrower.
(C) It is a condition precedent to the issue of the EDB Guarantee
by the Guarantor Banks under the Credit Agreement and the making of the first
Advance by the Lending Banks under the Credit Agreement that the parties to this
Agreement shall have entered into this Agreement.
(D) Each of the Shareholders (as defined below) (after giving due
consideration to the terms and conditions of the Credit Agreement and satisfying
itself that there are reasonable grounds for believing that the entry into by it
of this Agreement will benefit it) has agreed to enter into this Agreement and
give the undertakings provided in this Agreement in consideration of the
Guarantor Banks making available to the Borrower the guarantee facility referred
to in Recital (A) above and the Lending Banks making available to the Borrower
the term loan facility referred to in Recital (A) above.
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I T I S A G R E E D as follows:-
1. INTERPRETATION
(A) Definitions: In this Agreement, except to the extent that the
context requires otherwise:-
"Agent" includes its successors in title and assigns and any
company with which it may amalgamate and all other persons for
the time being the agent for the Banks under this Agreement;
"Banks" means the Guarantor Banks and the Lending Banks (and
includes their respective successors and assigns);
"Completion" means the physical completion of the Plant (which
shall be evidenced by the grant of the temporary occupation
permit for the Plant pursuant to the Building Control Act,
Chapter 29 of Singapore) and the commencement of commercial
production by the Plant (which shall be the date on which the
Plant achieves a production rate of an aggregate of 2,000
wafers start per month);
"Discharge Date" means the date on which the Senior
Indebtedness has been discharged in full and on which the
Borrower and the Shareholders cease to be under any liability
to the Agent and the Banks under or in connection with the
Financing Documents;
"Equity Commitment Percentage" means:-
(1) in relation to CSM, 51/100;
(2) in relation to EDBI, 19/100; and
(3) in relation to HPE, 30/100;
"Excluded Transaction" means any genuine and good faith
commercial transaction entered into between the Borrower and
any one or more of the Shareholders which is not primarily
financial in nature and is contemplated under the Joint
Venture Agreement;
"HP Entities" means:-
(1) Hewlett-Packard Company, a company incorporated in
California;
(2) HPWTS, a company incorporated in Delaware;
(3) Hewlett-Packard Ireland (Holdings) Ltd., a company
incorporated in Ireland;
(4) Hewlett-Packard (Manufacturing) Ltd., a company
incorporated in Ireland;
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(5) Hewlett-Packard S.A., a company incorporated in
Switzerland;
(6) Hewlett-Packard Singapore Pte. Ltd., a company
incorporated in Singapore; and
(7) Hewlett-Packard Holdings Singapore Pte Ltd., a
company incorporated in Singapore;
"Joint Venture Agreement" has the meaning ascribed to it in
Clause 1(A) of the Credit Agreement;
"Scheduled Completion Date" means 31st December, 1999;
"Senior Indebtedness" means all sums (whether principal,
interest, fee or otherwise) which are or at any time may be or
become due from or owing by the Borrower to the Agent and/or
the Banks (or any of them), whether actually or contingently,
under or in connection with, or which the Borrower has
covenanted to pay or discharge under or pursuant to, any of
the Financing Documents;
"Shareholder Funding" means:-
(1) subscription moneys paid by any Shareholder for
shares in the Borrower for which that Shareholder has
subscribed (and which have not been returned to that
Shareholder); or
(2) loans made by any Shareholder to the Borrower which
are subordinated to the Senior Indebtedness in
accordance with this Agreement;
"Shareholders" means CSM, EDBI and HPE (and includes their
respective successors and permitted assignees and
transferees);
"Subordinated Indebtedness" means all sums made or to be made
available by the Shareholders (or any of them) to the Borrower
under or in connection with this Agreement (including, without
limitation, under Clause 2);
"Termination Date" means, in relation to a Shareholder, the
earlier of (1) the date on which that Shareholder has
fulfilled all its obligations under Clause 2(A) and (2) the
date on which all Shareholder Funding provided by it, if any,
in accordance with this Agreement has been converted into
shares in the capital of the Borrower; and
"Total Indebtedness" means, at any particular time, all sums
(whether principal, interest, fee or otherwise) which are then
due from or owing by the Borrower to the Agent and the Banks,
whether actually or contingently, under or in connection with,
any of the Financing Documents to which the Borrower is a
party.
(B) Construction: All terms and references used in this Agreement
and which are defined or construed in the Credit Agreement but are not defined
or construed in this Agreement shall have the same meaning and construction in
this Agreement. The provisions of Clause 1(C) of the Credit Agreement shall
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apply to this Agreement as though they are set out in full in this Agreement
(mutatis mutandis) except that references to the Credit Agreement are to be
construed as references to this Agreement. All references in this Agreement to a
Financing Document include that Financing Document as amended, modified or
supplemented from time to time and any document which amends, modifies or
supplements that Financing Document.
(C) Miscellaneous: The headings in this Agreement are inserted for
convenience only and shall be ignored in construing this Agreement. Unless the
context otherwise requires, words denoting the singular number only shall
include the plural and vice versa. References to "Clauses" are to be construed
as references to the clauses of this Agreement. Any reference to a sub-Clause or
a paragraph is to a sub-Clause or paragraph of the Clause in which such
reference appears.
2. UNDERTAKINGS BY SHAREHOLDERS
(A) Shareholders Support: In consideration of the Guarantor Banks
agreeing, at the request of the Shareholders, to make available to the Borrower
the guarantee facility referred to in Recital (A) above and the Lending Banks
agreeing, at the request of the Shareholders, to make available to the Borrower
the term loan facility referred to in Recital (A) above and/or the Banks (or any
of them) acting under or in connection with the Credit Agreement:-
(1) Completion Guarantee: (a) subject to sub-paragraph
(c) below, (i) each Shareholder agrees to procure
that the Borrower will not abandon the Project and to
procure that Completion is achieved by not later than
the Scheduled Completion Date and (ii) each
Shareholder shall indemnify each Bank and keep each
Bank indemnified against any losses, damages,
liabilities, costs and expenses (including, without
limitation, legal costs on a full indemnity basis)
suffered by that Bank if Completion is not achieved
by the Scheduled Completion Date and which would not
have been suffered if Completion had been so
achieved;
(b) each Shareholder agrees to undertake such
expenditures as are required in order to ensure its
compliance with the provisions of sub-paragraph (a)
above and agrees to take all steps necessary to
ensure that Completion is achieved by not later than
the Scheduled Completion Date (provided that, without
prejudice to the obligations of the Shareholders
under sub-paragraph (a)(ii) above or any other
provision of this Agreement, the aggregate amount of
the expenditures by the Shareholders under
sub-paragraphs (a)(i) and (b) at any time shall not
exceed the difference between S$720,000,000 and the
aggregate amount of Shareholding Funding provided by
the Shareholders immediately prior to that time); and
(c) any payment obligation of a Shareholder arising
under sub-paragraph (a) or (b) above shall be limited
to that Shareholder's Equity Commitment Percentage of
the total amount payable by the Shareholders provided
always that the maximum aggregate liability of the
Shareholders at any time
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under sub-paragraph (a)(ii) above shall not exceed
the Total Indebtedness at that time;
(2) Equity Support: if, on 31st December, 2001, the ratio
of the Borrowings of the Borrower to its Net Worth is
in excess of 1:1, each Shareholder shall (without
demand by the Borrower, the Agent or any Bank)
severally provide Shareholder Funding to the Borrower
within 14 days after that date in an amount equal to
its Equity Commitment Percentage of the difference
between (a) S$720,000,000 and (b) the aggregate
amount of Shareholder Funding immediately prior to
the provision of Shareholder Funding by that
Shareholder on that date; and
(3) DSCR: if, on any Calculation Date, there is a breach
by the Borrower of its obligations under Clause
16(16)(b) or Clause 16(16)(c) of the Credit
Agreement, each Shareholder shall (without demand by
the Borrower, the Agent or any Bank) severally
provide Shareholder Funding to the Borrower on that
Calculation Date in an amount equal to its Equity
Commitment Percentage of the lower of (a) the amount
(as determined by the Agent) to enable the Borrower
to meet any shortfall in its ability to meet all
payments referred to in component "B" of the
definition of DSCR falling due during the next
succeeding Calculation Period commencing on that
Calculation Date and (b) the difference between (i)
S$720,000,000 and (ii) the aggregate amount of
Shareholder Funding immediately prior to the
provision of Shareholder Funding by that Shareholder
on that Calculation Date.
(B) Obligations Unconditional: The obligations of the Shareholders under
this Clause are unconditional and absolute, irrespective of (1) any event,
however fundamental, outside the control of the Borrower or any Shareholder or
any other person preventing the Borrower from achieving Completion by the
Scheduled Completion Date, (2) any winding-up, liquidation or dissolution of the
Borrower, (3) any Event of Default or action taken by the Agent or any Bank
under the Financing Documents or any enforcement of any security constituted by
any Financing Document, (4) whether the Project or the business of the Borrower
is being carried on by any receiver, judicial manager or other person and (5)
any other circumstances whatsoever.
(C) Subscription Procedures: (1) The Borrower and each Shareholder shall do
all such things as may be necessary on their part for the provision of
Shareholder Funding required pursuant to this Agreement.
(2) If for any reason whatsoever (including, without limitation,
the winding-up, liquidation or dissolution of the Borrower or failure of the
Borrower to issue shares or to accept payment), a Shareholder does not or cannot
provide Shareholder Funding, that Shareholder will nevertheless, at such times
as are specified in this Clause, pay to the Borrower the amount it would
otherwise have been obliged to pay by way of Shareholder Funding, which shall be
deemed to discharge its obligation to provide that Shareholder Funding.
(3) If a Shareholder makes a payment under paragraph (2), the
Borrower will be liable (on the same terms and conditions) to that Shareholder
for the
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amount of the payment as if it had constituted Shareholder Funding by way of
subscription moneys for shares or subordinated loans (as appropriate).
(D) Subordinated Loans: If the Shareholders' obligations under
this Clause are fulfilled by means of loans to the Borrower (whether from any of
or all the Shareholders or from some other party), each of the Borrower and the
Shareholders agrees that such loans shall:-
(1) be unsecured;
(2) not be subject to any payment of interest until after
the Discharge Date (although interest may accrue on
it prior to the Discharge Date); and
(3) be subordinated to the Senior Indebtedness in the
manner set out in this Agreement (Provided that,
notwithstanding anything to the contrary contained in
this Agreement, the aggregate amount of such loans
which shall be subordinated to the Senior
Indebtedness in the manner set out in this Agreement
shall not exceed the difference between S$720,000,000
and the aggregate amount of Shareholding Funding
provided by the Shareholders by way of subscription
moneys for shares).
3. SUBORDINATION
(A) Subordination: The Shareholders and the Borrower hereby agree
with and undertake to the Agent and each of the Banks that, notwithstanding
anything to the contrary contained in any agreement or other document
constituting or evidencing the Subordinated Indebtedness, before the Discharge
Date the Subordinated Indebtedness and the rights and claims of the Shareholders
in relation to the Subordinated Indebtedness are subordinated to the Senior
Indebtedness and the respective rights and claims of the Banks in relation to
the Senior Indebtedness and accordingly, subject as provided in this Agreement,
payments of any amount of the Subordinated Indebtedness (whether in the event of
the winding-up, liquidation or dissolution of the Borrower or otherwise) are
conditional upon all of the Senior Indebtedness having first been fully
satisfied and discharged and no payment of any amount of the Subordinated
Indebtedness which, but for this Agreement, would otherwise fall due for payment
will fall so due, and instead such payment will fall due only if and when the
Senior Indebtedness has been fully satisfied and discharged and, if the
Subordinated Indebtedness or any part thereof is paid by or on behalf of the
Borrower to any Shareholder, that payment shall be forthwith paid over by that
Shareholder to the Agent.
(B) Turnover: Without prejudice to the provisions of sub-Clause
(A) above, if any amount of Subordinated Indebtedness is discharged or purported
to be discharged by payment, repayment, prepayment, set-off or in any other
manner in contravention of sub-Clause (A) above or Clause 4 (and, for the
avoidance of doubt, any payment of consideration, discount or benefit given or
credit terms granted under any of the Excluded Transactions shall be deemed not
to be a discharge or purported discharge of any part of the Subordinated
Indebtedness), the relevant Shareholder shall:-
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(1) (if the Shareholder actually receives the amount
discharged or purported to be discharged) immediately
pay it to the Agent for application towards the
Senior Indebtedness; and
(2) (if the Shareholder does not, as a result of
discharge by set-off or otherwise, actually receive
the amount discharged or purported to be discharged)
pay to the Agent an amount equal to that discharged
or purported to be discharged.
(C) Application: Any amount received by the Agent from any of the Shareholders,
or any person on its behalf, under sub-Clause (A) or (B) above shall be applied
in the following manner and order:-
(1) first, in or towards payment of any costs, charges
and expenses incurred by the Agent then due and
payable under this Agreement and the other Financing
Documents;
(2) secondly, in or towards payment of the Senior
Indebtedness (and in the event that such sums are
insufficient to satisfy in full the Senior
Indebtedness, such sums shall be paid to the Banks in
proportion to their respective shares of the Senior
Indebtedness at the time of payment); and
(3) thirdly, in payment of any surplus to that
Shareholder or any other person lawfully entitled
thereto.
4. AGREEMENT BY BORROWER AND SHAREHOLDERS
(A) By Borrower: The Borrower agrees and undertakes that prior to
the Discharge Date, it shall not, without the prior consent in writing of the
Agent and the Banks:-
(1) make any loans or advances, whether directly or
indirectly, to any of the Shareholders or provide any
guarantee, indemnity or security for or in connection
with any indebtedness or liabilities of any of the
Shareholders or otherwise enter into any transactions
with any of the Shareholders other than (a) any
transaction on arm's length commercial terms and for
valuable consideration or (b) any Excluded
Transaction;
(2) secure all or any part of the Subordinated
Indebtedness;
(3) redeem, purchase or otherwise acquire any of the
Subordinated Indebtedness;
(4) repay or prepay any, or pay any interest, fees or
commissions (but without prejudice to accrual
thereof) on, or by reference to, any of the
Subordinated Indebtedness otherwise than in
accordance with the terms of this Agreement; or
(5) take or omit to take any action whereby the
subordination of the Subordinated Indebtedness or any
part thereof to the Senior Indebtedness may be
terminated, impaired or adversely affected.
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(B) By Shareholders: Except as otherwise expressly provided in
this Agreement, none of the Shareholders shall, without the prior consent in
writing of the Agent and the Banks, prior to the Discharge Date:-
(1) ask, demand, ▇▇▇ for, take or receive, directly or
indirectly, whether by exercise of set-off,
counterclaim or in any other manner, or recover or
enforce payment of any Subordinated Indebtedness
(provided that, for the avoidance of doubt, nothing
under this paragraph (1) shall prohibit any asking,
demand, suit for, taking or receipt, or recovery or
enforcement of, any payment due by the Borrower under
any of the Excluded Transactions);
(2) take any security from the Borrower or any other
person in respect of any Subordinated Indebtedness
and any security taken notwithstanding the
undertaking in this paragraph (2) shall be held by
the relevant Shareholder in trust for the Agent;
(3) make or enforce any claim or right against the
Borrower or prove in competition with the Agent or
any Bank in respect of the performance of any
obligation under this Agreement;
(4) assign, transfer, sell, charge or purport to assign,
transfer, sell, charge or otherwise dispose or
purport to dispose of the whole or any part of or any
interest in any rights which it may from time to time
and for the time being have against the Borrower in
respect of the Subordinated Indebtedness; or
(5) take or omit to take any action whereby the
subordination of the Subordinated Indebtedness or any
part thereof to the Senior Indebtedness may be
terminated, impaired or adversely affected.
5. REPRESENTATIONS AND WARRANTIES
(A) By Shareholders: Each of the Shareholders severally represents
and warrants to and for the benefit of the Agent and each of the Banks in
relation to itself that:-
(1) Status: it is a company duly incorporated and validly
existing under the laws of Singapore (in the case of
CSM and EDBI) or the Netherlands (in the case of
HPE), and has the power and authority to own its
assets and to conduct the business which it conducts
and/or proposes to conduct;
(2) Powers: it has the power to enter into, exercise its
rights and perform and comply with its obligations
under this Agreement;
(3) Authorisations and Consents: all action, conditions
and things required to be taken, fulfilled and done
(including the obtaining of any necessary consents)
in order (a) to
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enable it lawfully to enter into, exercise its rights
and perform and comply with its obligations under
this Agreement, (b) to ensure that those obligations
are valid, legally binding and enforceable, and (c)
to make this Agreement admissible in evidence in the
courts of Singapore and the Netherlands have been
taken, fulfilled and done;
(4) Non-Violation of Laws: its entry into, exercise of
its rights and/or performance of or compliance with
its obligations under this Agreement do not and will
not violate, or exceed any power or restriction
granted or imposed by, (a) any law to which it is
subject or (b) its Memorandum and Articles of
Association;
(5) Obligations Binding: its obligations under this
Agreement are valid, binding and enforceable;
(6) Non-Violation of Other Agreements: its entry into,
exercise of its rights and/or performance of or
compliance with its obligations under this Agreement
do not and will not violate, to an extent or in a
manner which has or will have a material adverse
effect on it, any agreement to which it is a party or
which is binding on it or its assets;
(7) Litigation: no litigation, arbitration or
administrative proceeding is current or pending (a)
to restrain the entry into, exercise of its rights
under and/or performance or enforcement of or
compliance with its obligations under this Agreement
or (b) which has or will have a material adverse
effect on it;
(8) Winding-up: no meeting has been convened for its
winding-up or for the appointment of a receiver,
trustee, judicial manager or similar officer of it,
its assets or any of them, no such step is intended
by it and, so far as it is aware, no petition,
application or the like is outstanding for its
winding-up or for the appointment of a receiver,
trustee, judicial manager or similar officer of it,
its assets or any of them;
(9) No Default: as far as it is aware after having made
all due and proper enquiries, no Event of Default or
Potential Event of Default has occurred, and it is
not in breach of or default under any agreement to an
extent or in a manner which has or will have a
material adverse effect on it;
(10) Information Package: at the date of the Information
Package:-
(a) the information in the Information Package
relating to, and provided by, it was true,
complete and accurate in all material
respects; and
(b) the opinions, projections and forecasts in the
Information Package relating to, and provided
by, it and the assumptions on which they are
based were
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arrived at after due and careful consideration
and enquiry and genuinely represented its
views; and
(11) Repetition: each of the above representations and
warranties will be correct and complied with in all
material respects at all times up to the Termination
Date as if repeated then by reference to the then
existing circumstances.
(B) By CSM: CSM further represents and warrants to and for the
benefit of the Agent and each of the Banks that:-
(1) Shareholding: CSM is (either directly or through any
one or more of its wholly-owned subsidiaries) the
legal and beneficial owner of at least 51 per cent.
of the issued share capital of the Borrower and
Singapore Technologies Pte Ltd is (either directly or
through any one of more of its wholly-owned
subsidiaries) the legal and beneficial owner of at
least 51 per cent. of the issued share capital of
CSM;
(2) Accounts: its audited accounts and consolidated
accounts (if any) as at 31st December, 1996 and for
the financial year then ended and as delivered to the
Agent (with copies of the reports and approvals
referred to in (a) below):-
(a) include such financial statements as are
required by the laws of Singapore and, save as
stated in the notes thereto, were prepared,
audited, examined, reported on and approved in
accordance with accounting principles and
practices generally accepted in Singapore and
consistently applied and in accordance with
the laws of Singapore and its Memorandum and
Articles of Association (or other constitutive
documents);
(b) together with those notes, give a true and
fair view of its state of affairs and
financial condition and operations (or, in the
case of consolidated accounts, the
consolidated state of affairs and financial
condition and operations of CSM and its
subsidiaries) as at that date and for the
financial year then ended; and
(c) together with those notes and to the extent
required by accounting principles, standards
and practices generally accepted in Singapore
disclose or reserve against all liabilities
(contingent or otherwise) of the relevant
person(s) as at that date and all material
unrealised or anticipated losses from any
commitment entered into by the relevant
person(s) and which existed on that date;
(3) No Material Adverse Change: there has been no
material adverse change in its financial condition or
operations since 31st December, 1997 nor in the
consolidated financial condition or operations of it
and its subsidiaries since that date; and
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(4) Repetition: the representation and warranty in
paragraph (1) will be correct and complied with in
all respects so long as any sum remains to be lent or
remains payable under the Credit Agreement as if
repeated then by reference to the then existing
circumstances and each of the representations and
warranties in paragraphs (2) and (3) will be correct
and complied with in all material respects at all
times up to the Termination Date as if repeated then
by reference to the then existing circumstances.
(C) By EDBI: EDBI further represents and warrants to and for the
benefit of the Agent and each of the Banks that EDBI is, on the date of this
Agreement, the legal and beneficial owner of not less than 19 per cent. of the
issued share capital of the Borrower.
(D) By HPE: HPE further represents and warrants and for the
benefit of the Agent and each of the Banks that:-
(1) Shareholding: HPE has an effective shareholding in
not less than 30 per cent. of the issued share
capital of the Borrower and HP (either directly or
through any one or more of its subsidiaries in which
it owns not less than 95 per cent. of the issued
share capital of that subsidiary) has an effective
shareholding in not less than 30 per cent. of the
issued share capital of the Borrower for a period of
not less than four years from the date of the Joint
Venture Agreement;
(2) Accounts: the consolidated accounts (if any) of HP as
at 31st October, 1997 and for the financial year then
ended and as delivered, or cause to be delivered, to
the Agent (with copies of the reports and approvals
referred to in (a) below):-
(a) include such financial statements as are
required by the laws of the United States of
America and, save as stated in the notes
thereto, were prepared, audited, examined,
reported on and approved in accordance with
accounting principles and practices generally
accepted in the United States of America
consistently applied and in accordance with
the laws of the United States of America and
its Memorandum and Articles of Association (or
other constitutive documents);
(b) together with those notes, give a true and
fair view of its state of affairs and
financial condition and operations (or, in the
case of consolidated accounts, the
consolidated state of affairs and financial
condition and operations of HP and its
subsidiaries) as at that date and for the
financial year then ended; and
(c) together with those notes and to the extent
required by accounting principles, standards
and practices generally accepted in the United
States of America
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disclose or reserve against all liabilities
(contingent or otherwise) of the relevant
person(s) as at that date and all material
unrealised or anticipated losses from any
commitment entered into by the relevant
person(s) and which existed on that date;
(3) No Material Adverse Change: there has been no
material adverse change in the financial condition or
operations of HP since 31st October, 1997 nor in the
consolidated financial condition or operations of HP
and the subsidiaries of HP since that date; and
(4) Repetition: the representation and warranty in
paragraph (1) will be correct and complied with in
all respects so long as any sum remains to be lent or
remains payable under the Credit Agreement as if
repeated then by reference to the then existing
circumstances and each of the representations and
warranties in paragraphs (2) and (3) will be correct
and complied with in all material respects at all
times up to the Termination Date as if repeated then
by reference to the then existing circumstances.
6. UNDERTAKINGS
(A) By Shareholders: (1) Each of the Shareholders severally
undertakes that, at all times prior to the Termination Date:-
(a) Litigation: it will, as soon as reasonably
practicable, deliver to the Agent for distribution to
the Banks details of any litigation, arbitration or
administrative proceeding which, if to its knowledge
had been current or pending at the date of this
Agreement, would have rendered the representation and
warranty in Clause 5(A)(7) incorrect;
(b) Other Information: it will, as soon as reasonably
practicable, deliver to the Agent for distribution to
the Banks such other information relating to its
financial condition or business of it as the Agent
(or any Bank through the Agent) may from time to time
reasonably require (except for information of a
proprietary nature or which is reasonably regarded by
it as confidential); and
(c) Further Assurance: it will from time to time on
reasonable request by the Agent acting on the
instructions of the Majority Banks do or procure the
doing of all such acts and will execute or procure
the execution of all such documents as may be
reasonably necessary for giving full effect to this
Agreement or securing to the Agent and the Banks the
full benefits of all rights, powers and remedies
conferred upon the Agent and the Banks in this
Agreement.
(2) Each of the Shareholders severally undertakes that, so long as any
sum remains to be lent or remains payable under the Credit Agreement:-
12
15
(a) No Winding-up: it will not propose or vote in favour
of any resolution for the winding-up, liquidation or
dissolution of the Borrower; and
(b) Dividends: it will exercise all voting rights
attaching to the shares in the capital of the
Borrower for the time being held by it so as to
ensure that the Borrower does not declare or pay any
dividend otherwise then in accordance with Clause
16(13) of the Credit Agreement.
(B) By CSM: (1) CSM further undertakes that, so long as any sum
remains to be lent or remains payable under the Credit Agreement, it will be
(either directly or through any one or more of its wholly-owned subsidiaries)
the legal and beneficial owner of at least 51 per cent. of the issued share
capital of the Borrower and Singapore Technologies Pte Ltd will be (either
directly or through any one or more of its wholly-owned subsidiaries) the legal
and beneficial owner of at least 51 per cent. of the issued share capital of
CSM.
(2) CSM further undertakes that, at all times prior to the
Termination Date, it will, as soon as available and in any event within 180 days
after the end of each of its financial years (beginning with the current one),
deliver to the Agent enough copies for the Banks of its audited accounts (both
consolidated and unconsolidated) as at the end of and for that financial year.
(C) By EDBI: EDBI further undertakes that, at all times prior to
the Termination Date, it will deliver to the Agent as soon as available and in
any event within 180 days after the end of each of its financial years
(beginning with the current one), enough copies for the Banks of a statement as
to its share capital and reserves as at the end of and for that financial year.
(D) By HPE: (1) HPE further undertakes that, so long as any sum
remains to be lent or remains payable under the Credit Agreement, HP (either
directly or through one or more of its subsidiaries in which it owns not less
than 95 per cent. of the issued share capital of that subsidiary) will have an
effective shareholding in not less than 30 per cent. of the issued share capital
of the Borrower for a period of not less than four years from the date of the
Joint Venture Agreement.
(2) HPE further undertakes that, at all times prior to the
Termination Date, it will, as soon as available and in any event within 180 days
after the end of each of its financial years (beginning with the current one),
deliver, or cause to be delivered, to the Agent enough copies for the Banks (on
the basis of one copy for each Bank) of the published annual report of HP as at
the end of and for that financial year.
7. PAYMENTS
(A) Taxes: (1) All sums payable by the Shareholders under this
Agreement shall be paid (1) free of any restriction or condition, (2) free and
clear of and (except to the extent required by law) without any deduction or
withholding for or on account of any tax and (3) without deduction or
withholding (except to the extent required by law) on account of any other
amount, whether by way of set-off or otherwise.
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16
(2) If any of the Shareholders or any other person (whether or not
a party to, or on behalf of a party to, this Agreement) must at any time deduct
or withhold any tax or other amount from any sum paid or payable by, or received
or receivable from, that Shareholder under this Agreement, that Shareholder
shall pay such additional amount as is necessary to ensure that the Agent or, as
the case may be, the Bank to which that sum is due, receives on the due date and
retains (free from any liability other than tax on its own overall net income) a
net sum equal to what it would have received and so retained had no such
deduction or withholding been required or made.
(3) If any of the Shareholders or any other person (whether or not
a party to, or on behalf of a party to, this Agreement) must at any time pay any
tax or other amount on, or calculated by reference to, any sum received or
receivable by the Agent or, as the case may be, any of the Banks from that
Shareholder under this Agreement (except for a payment by the Agent or a Bank of
tax on its own overall net income), that Shareholder shall pay or procure the
payment of that tax or other amount before any interest or penalty becomes
payable or, if that tax or other amount is payable and paid by the Agent or any
Bank, shall reimburse it on demand for the amount paid by it.
(4) Within 30 days after paying any sum from which it is required
by law to make any deduction or withholding, and within 30 days after the due
date of payment of any tax or other amount which it is required by paragraph (3)
above to pay, the relevant Shareholder shall deliver to the Agent evidence
reasonably satisfactory to the Agent or, as the case may be, the relevant Bank
of that deduction, withholding or payment and (where remittance is required) of
the remittance thereof to the relevant taxing or other authority.
(5) As soon as any of the Shareholders is aware that any such
deduction, withholding or payment is required (or any change in any such
requirement), that Shareholder shall notify the Agent.
(B) Goods and Services Tax: Each of the Shareholders shall also
pay to the Agent and each Bank on demand, in addition to any amount payable by
that Shareholder under this Agreement, any goods and services, value added or
other similar tax payable in respect of that amount (and any reference in this
Agreement to that amount shall be deemed to include any such taxes payable in
addition to it).
(C) Refund of Tax Credits: If:-
(1) any Shareholder makes a payment under sub-Clause
(A)(2) or (3) (a "Tax Payment") in respect of a
payment to a Bank under this Agreement; and
(2) that bank determines in its absolute discretion that
it has obtained a refund of tax or obtained and used
a credit against tax on its overall net income (a
"Tax Credit") which that Bank in its absolute
discretion is able to identify as attributable to
that Tax Payment,
then, if in its absolute discretion it can do so without any adverse
consequences for that Bank, that Bank shall reimburse that Shareholder such
amount as that Bank in its absolute discretion determines to be such proportion
of that Tax Credit as will leave that Bank (after that reimbursement) in no
14
17
better or worse position in respect of its worldwide tax liabilities than it
would have been in if no Tax Payment had been required. A Bank shall have an
absolute discretion as to whether to claim any Tax Credit (and, if it does
claim, the extent, order and manner in which it does so) and whether any amount
is due from it under this sub-Clause (C) (and, if so, what amount and when). No
Bank shall be obliged to disclose any information regarding its tax affairs and
computations.
(D) Currency Indemnity: (1) Any amount received or recovered by
the Agent or any Bank in respect of any sum expressed to be due to it from any
Shareholder under or in connection with this Agreement in a currency (such
currency being referred to as the "Relevant Currency") other than the currency
in which such sum is expressed to be due under this Agreement (such currency
being referred to as the "Currency of Account") whether as a result of, or of
the enforcement of, a judgment or order of a court or tribunal of any
jurisdiction, in the winding-up of that Shareholder or otherwise, shall only
constitute a discharge to that Shareholder to the extent of the amount in the
Currency of Account which the recipient is able, in accordance with its usual
practice, to purchase with the amount of the Relevant Currency so received or
recovered on the date of that receipt or recovery (or, if it is not practicable
to make that purchase on that date, on the first date on which it is practicable
to do so).
(2) If that amount in the Currency of Account is less than the
amount of the Currency of Account due to the recipient under or in connection
with this Agreement, that Shareholder shall indemnify it against any loss
sustained by it as a result. In any event, that Shareholder shall indemnify the
recipient against the cost of making any such purchase. For the purpose of this
sub-Clause (D), it will be sufficient for the recipient to demonstrate that it
would have suffered a loss had an actual exchange or purchase been made.
(3) Each of the indemnities in this sub-Clause (D) constitutes a
separate and independent obligation from the other obligations in this
Agreement, shall give rise to a separate and independent cause of action, shall
apply irrespective of any indulgence granted by the Agent, any Arranger and/or
any Bank and shall continue in full force and effect despite any judgment,
order, claim or proof for a liquidated amount in respect of any sum due under
this Agreement or any other judgment or order.
8. NATURE OF RIGHTS AND OBLIGATIONS
(A) No Release: The obligations of the Shareholders under this
Agreement (excluding, for the avoidance of doubt, any obligation of the
Shareholders under this Agreement which has been discharged) shall not be
discharged, impaired or otherwise affected by any act, omission, matter or thing
which, but for this sub-Clause (A), may operate to release or otherwise
exonerate any of the Shareholders from its obligations under this Agreement in
whole or in part, including without limitation and whether or not known to it or
any other person:-
(1) any variation in or to the Project;
(2) any time, indulgence, concession waiver or consent at
any time given by the Agent and/or any of the Banks
in respect of
15
18
the Senior Indebtedness or any part thereof or to the
Borrower, any Shareholder or any other person;
(3) any amendment or supplement to any provision of any
Financing Document or any other agreement, security,
guarantee or indemnity;
(4) the making or the absence of any demand on the
Borrower, any Shareholder or any other person for
payment;
(5) the enforcement or absence of enforcement of or
release of any of the Financing Documents or any
other agreement, security, guarantee or indemnity
held in respect of the Senior Indebtedness;
(6) the winding-up, insolvency, bankruptcy, amalgamation,
reconstruction or reorganisation of the Borrower, any
Shareholder or any other person;
(7) the illegality, invalidity or unenforceability of or
any defect in any provision of any Financing Document
or any other agreement, security, guarantee or
indemnity or any of the obligations of the Borrower,
any Shareholder or any other person thereunder,
whether on the grounds of ultra ▇▇▇▇▇, not being in
the interests of the Borrower or any other person,
not having been duly authorised, executed or
delivered by the Borrower or any other person or for
any reason whatsoever; or
(8) any other act, event or omission which but for this
provision would or might operate to impair or
discharge the obligations of any Shareholder under
this Agreement.
(B) Continuing Obligations: The obligations of the Shareholders
and the Borrower under this Agreement are continuing obligations, will not be
discharged by any intermediate payment and will remain in full force and effect
until the obligations have been fulfilled (for the avoidance of doubt, nothing
in this sub-Clause (B) shall affect any obligations of the Borrower or any
Shareholder which has been discharged by the due and proper performance by the
Borrower or such Shareholder of such obligations).
(C) Reinstatement: (1) Any settlement or discharge between the
Agent or any of the Banks and any of the Shareholders shall be conditional upon
no security or payment to the Agent or such Bank by the Borrower or any other
person being avoided or reduced by virtue of any provision or enactment relating
to bankruptcy, insolvency or winding-up for the time being in force or by virtue
of any obligation to give effect to any preference or priority and the Agent or
such Bank (as the case may be) shall be entitled to recover the value or amount
of any such security or payment from that Shareholder subsequently as if such
settlement or discharge had not occurred.
(2) Without prejudice to the provisions of paragraph (2), where
any discharge (whether in respect of the obligations of any Shareholder or any
security for those obligations or otherwise) is made in whole or in part or any
arrangement is made on the faith of any payment, security or other disposition
which is avoided or must be repaid on bankruptcy, insolvency or winding-up or
16
19
otherwise without limitation, the liability of the Shareholders under this
Agreement shall, unless the Agent and the Banks agree otherwise, continue as if
the discharge or arrangement, as the case may be, had not occurred.
(D) Failure by Shareholder: The failure of a Shareholder or the
Borrower to perform or comply with any of its obligations under this Agreement
shall not release any other Shareholder or the Borrower of its obligations under
this Agreement.
(E) Immediate Recourse: Each Shareholder waives any right which it
may have of first requesting the Agent or any of the Banks to proceed against or
enforce any other rights or security or claim payment from the Borrower, any
other Shareholder or any other person before claiming from the Shareholder under
this Agreement.
(F) Additional Security: This Agreement shall be in addition to
and shall not in any way be prejudiced by any other security now or hereafter
held by the Agent or any Bank as security for the obligations of the Borrower
under the Credit Agreement.
9. EXPENSES
(A) By Shareholders: Each of the Shareholders shall pay on demand
all costs and expenses (including legal expenses on a full indemnity basis)
reasonably incurred by the Agent and/or any of the Banks in protecting or
enforcing any rights against it under this Agreement.
(B) By Borrower: The Borrower shall pay on demand all costs and
expenses (including legal expenses on a full indemnity basis) reasonably
incurred by the Agent and/or any of the Banks in protecting or enforcing any
rights against it under this Agreement.
10. BENEFIT OF AGREEMENT
(A) Shareholders/Borrower: The Borrower may not assign or transfer
any of its rights, benefits or obligations under this Agreement. None of the
Shareholders may assign or transfer any of their respective rights, benefits or
obligations under this Agreement other than in the following manner and upon the
following terms:-
(1) in the case of EDBI, it may transfer all of its
rights, benefits and obligations under this Agreement
to any of its wholly-owned subsidiaries which has
acquired all the shares owned by EDBI in the
Borrower, provided that (a) the transferee shall have
agreed in writing to the other parties to this
Agreement to assume all the obligations of EDBI under
this Agreement and (b) EDBI and the transferee shall
have undertaken to the other parties to this
Agreement to ensure that, in the event that the
transferee ceases to be a wholly-owned subsidiary of
EDBI, the transferee shall transfer all its rights,
benefits and obligations under this Agreement to EDBI
or a wholly-owned subsidiary of EDBI; and
(2) in the case of HPE, it may transfer all of its
rights, benefits and obligations under this Agreement
to a HP Entity
17
20
(provided that, at the time of such transfer, HP owns
at least 95 per cent. of the issued share capital of
such HP Entity) which has acquired all the shares
owned by HPE in the Borrower, provided that (a) such
HP Entity shall have undertaken to the other parties
to this Agreement to assume all the obligations of
HPE under this Agreement and (b) HPE and such HP
Entity shall have undertaken to the other parties to
this Agreement to ensure that, in the event HP ceases
to own at least 95 per cent. of the issued share
capital of such HP Entity, such HP Entity shall
transfer all its rights, benefits and obligations
under this Agreement to HP, HPE or another HP Entity
(of which HP owns at least 95 per cent. of its issued
share capital).
(B) Agent/Banks: (1) Each of the Agent and the Banks may assign
all or part of its rights under this Agreement without the consent of any party
to any assignee or transferee under the Credit Agreement (but the assignor shall
give to the Borrower prior notice of such assignment or transfer). Any such
assignee shall be entitled to the full benefit of this Agreement to the same
extent as if it were an original party in respect of the rights assigned to it.
(2) None of the Shareholders and the Borrower shall be liable for
any costs or expenses which may be incurred in connection with any assignment or
transfer of any of the rights of the Agent or any of the Banks under this
Agreement.
(C) Disclosure of Information: The Agent or any of the Banks may
disclose on a confidential basis to any other party to the Financing Documents
or any of its other branches or its headquarters or to an actual or potential
New Lending Bank, assignee, sub-participant or the like such information about
the Borrower, any Shareholder or any other person as it may think fit and may
disclose to such party such information about the Borrower or any of the
Shareholders with the prior consent in writing of the Borrower or, as the case
may be, such Shareholder (Provided that, at any time and from time to time after
the making of a declaration under Clause 17(B) of the Credit Agreement, (1) no
such consent will be required for any such disclosure and (2) the Agent or the
relevant Bank making any such disclosure shall, if practicable, consult with the
Borrower or, as the case may be, such Shareholder prior to making any such
disclosure and shall consider in good faith any request from the Borrower or, as
the case may be, such Shareholder to the Agent or such Bank not to make any such
disclosure or to delay making any such disclosure).
(D) Limitation on Certain Obligations: If, at the time of any
assignment or transfer by a Bank, circumstances exist which would oblige any
Shareholder to pay to the assignee or transfer under Clause 7(A) any sum in
excess of the sum (if any) which it would have been obliged to pay to that Bank
under that Clause in the absence of that assignment or transfer, that
Shareholder shall not be obliged to pay that excess.
11. WAIVERS
No failure on the part of the Agent or any of the Banks to
exercise, and no delay on its part in exercising, any right or remedy under this
Agreement will operate as a waiver thereof, nor will any single or partial
exercise of any right or remedy preclude any other or further exercise thereof
18
21
or the exercise of any other right or remedy. The rights and remedies provided
in this Agreement are cumulative and not exclusive of any other rights or
remedies (whether provided by law or otherwise).
12. COMMUNICATIONS
(A) Addresses: Each communication under this Agreement shall be
made by fax, telex or otherwise in writing. Each communication or document to be
delivered to any party under this Agreement shall be sent to that party at the
fax number, telex number or address, and marked for the attention of the person
(if any), from time to time designated by that party to the Agent (or, in the
case of the Agent, by it to each other party) for the purpose of this Agreement.
The initial fax number, telex number, address and person (if any) so designated
by each party are set out against its name at the end of this Agreement.
(B) Deemed Delivery: Any communication under this Agreement shall
be deemed to have been received (if sent by fax or telex) on the day of despatch
or (in any other case) when left at the address required by sub-Clause (A) above
or within five days after being sent by prepaid post (by airmail if to another
country) addressed to it at that address.
13. PARTIAL INVALIDITY
The illegality, invalidity or unenforceability of any
provision of this Agreement under the law of any jurisdiction shall not affect
its legality, validity or enforceability under the law of any other jurisdiction
nor the legality, validity or enforceability of any other provision.
14. GOVERNING LAW AND JURISDICTION
(A) Governing Law: This Agreement shall be governed by, and
construed in accordance with, the laws of Singapore.
(B) Singapore Courts: For the benefit of the Agent and each Bank,
all the parties irrevocably agree that the courts of Singapore are to have
jurisdiction to settle any disputes which may arise out of or in connection with
this Agreement and that, accordingly, any legal action or proceedings arising
out of or in connection with this Agreement ("Proceedings") may be brought in
those courts and each of the Borrower and the Shareholders irrevocably submits
to the jurisdiction of those courts.
(C) Other Competent Jurisdiction: Nothing in this Clause shall
limit the right of the Agent and/or any Bank to take Proceedings against the
Borrower or any of the Shareholders in any other court of competent jurisdiction
nor shall the taking of Proceedings in one or more jurisdictions preclude the
Agent and/or any Bank from taking Proceedings in any other jurisdiction, whether
concurrently or not.
(D) Venue: Each of the Borrower and the Shareholders irrevocably
waives any objection which it may at any time have to the laying of the venue of
any Proceedings in any court referred to in this Clause and any claim that any
such Proceedings have been brought in an inconvenient forum.
19
22
(E) Service of Process: (1) HPE irrevocably appoints
Hewlett-Packard Far East Pte Ltd (now of ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, #▇▇-▇▇, ▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Company Secretary and International
Counsel) to receive, for it and on its behalf, service of process in any
Proceedings in Singapore. Such service shall be deemed completed on delivery to
the process agent (whether or not it is forwarded to and received by HPE). If
for any reason the process agent ceases to be able to act as such or no longer
has an address in Singapore, HPE irrevocably agrees to appoint a substitute
process agent acceptable to the Agent, and to deliver to the Agent a copy of the
new agent's acceptance of that appointment, within 30 days. Nothing shall affect
the right to serve process in any other manner permitted by law.
(F) Consent to Enforcement, etc.: Each of the Borrower and the
Shareholders irrevocably and generally consents in respect of any Proceedings
anywhere to the giving of any relief or the issue of any process in connection
with those Proceedings including, without limitation, the making, enforcement or
execution against any assets whatsoever (irrespective of their use or intended
use) of any order or judgment which may be made or given in those Proceedings.
(G) Waiver of Immunity: Each of the Borrower and the Shareholders
irrevocably agrees that, should the Agent or any Bank take any Proceedings
anywhere (whether for an injunction, specific performance, damages or
otherwise), no immunity (to the extent that it may at any time exist, whether on
the grounds of sovereignty or otherwise) from those Proceedings, from attachment
(whether in aid of execution, before judgment or otherwise) of its assets or
from execution of judgment shall be claimed by it or on its behalf or with
respect to its assets, any such immunity being irrevocably waived. Each of the
Borrower and the Shareholders irrevocably agrees that it and its assets are, and
shall be, subject to such Proceedings, attachment or execution in respect of its
obligations under this Agreement.
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23
I N W I T N E S S W H E R E O F this Agreement has been
entered into on the date stated at the beginning.
The Shareholders
The Common Seal of )
CHARTERED SEMICONDUCTOR )
MANUFACTURING LTD )
was hereunto affixed )
in the presence of:- )
/s/ ▇▇▇▇▇ ▇▇▇▇▇ Director
-------------------------------------
/s/ Chua ▇▇ ▇▇ Secretary
-------------------------------------
▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇,
▇▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇▇▇▇▇
Attention: Legal Department
The Common Seal of )
EDB INVESTMENTS PTE LTD )
was hereunto affixed )
in the presence of:- )
/s/ Ho Meng Kit Director
-------------------------------------
/s/ ▇▇▇▇ ▇▇▇▇ Secretary
-------------------------------------
▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
#▇▇-▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇▇▇▇▇
Attention: General Manager
21
24
Signed for and on behalf of )
HEWLETT PACKARD EUROPE B.V. )
in the presence of:- )
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇.
Fax Number: (▇▇▇▇) ▇▇▇▇▇▇▇
Attention: Legal Department
with copy to:-
Hewlett-Packard Company,
▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇ 20BQ,
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
▇▇▇.
Attention: General Counsel
The Borrower
The Common Seal of )
CHARTERED SILICON PARTNERS PTE LTD )
was hereunto affixed )
in the presence of:- )
/s/ ▇▇▇▇▇ ▇▇▇▇▇ Director
---------------
/s/ Chua ▇▇ ▇▇ Secretary
---------------
▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇,
▇▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇▇▇▇▇
Attention: Legal Department
22
25
The Agent
Signed, Sealed and Delivered by )
Goh ▇▇▇▇▇ ▇▇▇▇▇ and ) /s/ Goh ▇▇▇▇▇ ▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇▇▇▇ as )
attorneys for and on behalf of )
ABN AMRO BANK N.V., ) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
SINGAPORE BRANCH )
in the presence of:- )
/s/ Ong Yu En
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇▇▇▇▇
Telex Number: RS 24396
Attention: ▇▇ ▇▇▇▇ Toi Wee/▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
23
26
CONFORMED COPY
DATED 16TH DECEMBER, 1998
CHARTERED SILICON PARTNERS PTE LTD
AS BORROWER
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
EDB INVESTMENTS PTE LTD
HEWLETT-PACKARD EUROPE B.V.
AS SHAREHOLDERS
- AND -
ABN AMRO BANK N.V., SINGAPORE BRANCH
AS AGENT
------------------------------------------
FIRST SUPPLEMENTAL SHAREHOLDERS
UNDERTAKING
(BEING SUPPLEMENTAL TO THE SHAREHOLDERS
UNDERTAKING DATED 1ST JULY, 1998)
------------------------------------------
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, #▇▇-▇▇,
▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
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C O N T E N T S
CLAUSE HEADING PAGE
------ ------- ----
1. INTERPRETATION 1
2. AMENDMENTS TO SHAREHOLDERS UNDERTAKING 2
3. REPRESENTATIONS AND WARRANTIES 2
4. UNDERTAKING FROM SHAREHOLDERS 2
5. INCORPORATION 3
6. CONFIRMATION 3
7. GOVERNING LAW 3
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T H I S F I R S T S U P P L E M E N T A L
U N D E R T A K I N G is made on 16th December, ▇▇▇▇ ▇ ▇ ▇ ▇ ▇ ▇ N:-
(1) CHARTERED SILICON PARTNERS PTE LTD (the "Borrower");
(2) CHARTERED SEMICONDUCTOR MANUFACTURING LTD, EDB INVESTMENTS PTE
LTD and HEWLETT-PACKARD EUROPE B.V. (together, the
"Shareholders"); and
(3) ABN AMRO BANK N.V., SINGAPORE BRANCH, as agent for and on
behalf of the Banks defined below (in such capacity, the
"Agent", which expression shall include any of its successors
in such capacity).
and is supplemental to a Shareholders Undertaking (the "Shareholders
Undertaking") dated 1st July, 1998 made between (1) the Borrower, (2) the
Shareholders and (3) the Agent.
W H E R E A S:-
(A) Pursuant to a Credit Agreement (the "Credit Agreement") dated
12th March, 1998 made between (1) the Borrower, as borrower, (2) ABN AMRO Bank
N.V., Singapore Branch, Bayerische Landesbank Girozentrale, Singapore Branch,
Citibank, N.A., Singapore Branch, Overseas Union Bank Limited and The Sumitomo
Bank, Limited, Singapore Branch, as arrangers, (3) the Guarantor Banks named
therein (the "Guarantor Banks"), as guarantor banks, (4) the Lending Banks named
therein (the "Lending Banks"), as lending banks, and (5) the Agent, as agent,
the Guarantor Banks agreed to grant to the Borrower a S$236,800,000 guarantee
facility (the "Guarantee Facility") and the Lending Banks agreed to grant to the
Borrower a US$143,200,000 term loan facility (the "Term Loan Facility"), upon
the terms and subject to the conditions of the Credit Agreement.
(B) The Credit Agreement has been amended by a first supplemental
agreement (the "First Supplemental Agreement") dated 14th December, 1998 made
between the parties to the Credit Agreement to provide for (1) the deferment of
Completion (as defined in the Credit Agreement) by one year to 31st December,
2000, (2) the extension of the proposed date of the issue of the EDB Guarantee
(as defined in the Credit Agreement) from 30th June, 2000 to 30th September,
2000, (3) the extension of the Commitment Termination Date (as defined in the
Credit Agreement) from 31st December, 1999 to 31st December, 2000, (4) the
revision of the Repayment Dates (as defined in the Credit Agreement) and (5) the
increase in the commitment fees for the Available EDB Amount, the Unavailable
EDB Amount, the Available Term Amount and the Unavailable Term Amount on, inter
alia, the condition that the Borrower and the Shareholders deliver this
Supplemental Undertaking executed by each of them to the Agent.
I T I S A G R E E D as follows:-
1. INTERPRETATION
(A) In this Supplemental Undertaking, except where the context
otherwise requires, "Effective Date" has the meaning ascribed to it in Clause 2.
(B) All terms and references used in this Supplemental Undertaking
and which are defined or construed in the Credit Agreement, the First
Supplemental Agreement or the Shareholders Undertaking but are not defined or
construed in this Supplemental Undertaking shall have the same meaning and
construction in this Supplemental Undertaking.
(C) The headings in this Supplemental Undertaking are inserted for
convenience only and shall be ignored in construing this Supplemental
Undertaking. Unless otherwise stated, references to the
29
"Clauses" are to be construed as references to the clauses of this Supplemental
Undertaking.
2. AMENDMENTS TO SHAREHOLDERS UNDERTAKING
Each of the Borrower, the Shareholders and the Agent agree
that with effect from the date of this Supplemental Undertaking (the "Effective
Date"), the Shareholders Undertaking shall be amended as follows:-
(1) Recital (A) to the Shareholders Undertaking shall be
amended by inserting the words ", as amended by a
first supplemental agreement dated [ ], 1998 made
between the parties to the Credit Agreement" after
the word "agent" appearing in line 8 thereof; and
(2) the definition of "Scheduled Completion Date" in
Clause 1(A) of the Shareholders Undertaking shall be
amended by substituting the date "31st December,
1999" with the date "31st December, 2000".
3. REPRESENTATIONS AND WARRANTIES
Each of the Borrower and the Shareholders represents and
warrants to and for the benefit of the Agent that:-
(1) all action, conditions and things required to be
taken, fulfilled and done (including the obtaining of
any necessary consents) in order (a) to enable it
lawfully to enter into, exercise its rights and
perform and comply with its obligations under this
Supplemental Undertaking, (b) to ensure that those
obligations are valid, legally binding and
enforceable, and (c) to make this Supplemental
Undertaking admissible in evidence in the courts of
Singapore and the Netherlands have been taken,
fulfilled and done;
(2) its entry into, exercise of its rights and/or
performance of or compliance with its obligations
under this Supplemental Undertaking do not and will
not violate, or exceed any power or restriction
granted or imposed by, (a) any law to which it is
subject or (b) its Memorandum and Articles of
Association;
(3) its obligations under this Supplemental Undertaking
and the Shareholders Undertaking (as amended by this
Supplemental Undertaking) are valid, binding and
enforceable; and
(4) it is not in breach of any of its obligations under
the Shareholders Undertaking.
4. UNDERTAKING FROM SHAREHOLDERS
Chartered Semiconductor Manufacturing Ltd ("CSM") undertakes
to ensure that its shareholders shall pay into the capital of CSM by way of the
purchase price for the subscription of shares in the issued share capital of CSM
an additional amount of not less than S$300,000,000 by not later than 31st
December, 1998.
5. INCORPORATION
(A) The Shareholders Undertaking and this Supplemental Undertaking
shall be read and construed as one document and this Supplemental Undertaking
shall be considered as part of the Shareholders Undertaking and, without
prejudice to the generality of the foregoing, where the context so
2
30
allows, references in the Shareholders Undertaking to "this Agreement",
howsoever expressed, shall be read and construed as references to the
Shareholders Undertaking as amended, modified or supplemented by this
Supplemental Undertaking.
(B) Except to the extent expressly amended by the provisions of
this Supplemental Undertaking, the terms and conditions of the Shareholders
Undertaking and all other instruments and agreements executed, delivered or
entered into thereunder or pursuant thereto are hereby confirmed and shall
remain in full force and effect.
6. CONFIRMATION
Each of the Shareholders hereby irrevocably and
unconditionally consent to the amendments to the provisions of the Credit
Agreement in the manner set out in the First Supplemental Agreement and hereby
confirm that the Shareholders Undertaking remains in full force and effect and
is binding on each of the Shareholders and shall continue in full force and
effect and be binding on each of the Shareholders notwithstanding the amendments
to the Credit Agreement in the manner provided in the First Supplemental
Agreement.
7. GOVERNING LAW
This Supplemental Undertaking shall be governed by, and
construed in accordance with, the laws of Singapore.
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I N W I T N E S S W H E R E O F this Supplemental
Undertaking has been entered into on the date stated at the beginning.
THE SHAREHOLDERS
The Common Seal of )
CHARTERED SEMICONDUCTOR )
MANUFACTURING LTD ) sealed
was hereunto affixed )
in the presence of:- )
/s/ ▇▇▇▇▇ ▇▇▇▇▇ Director
-----------------------------------------
/s/ ▇▇ ▇▇▇▇▇ Director
-----------------------------------------
▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇,
▇▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇▇▇▇▇
Attention: Legal Department
The Common Seal of )
EDB INVESTMENTS PTE LTD ) sealed
was hereunto affixed )
in the presence of:- )
/s/ ▇▇▇▇▇▇ ▇▇▇ Director
-----------------------------------------
/s/ ▇▇▇▇ ▇▇▇▇ Secretary
-----------------------------------------
▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
#▇▇-▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇▇▇▇▇
4
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Attention: General Manager
Signed for and on behalf of )
HEWLETT-PACKARD EUROPE B.V. ) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
in the presence of:- )
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇.
Fax Number: (▇▇▇▇) ▇▇▇▇▇▇▇
Attention: Legal Department
with copy to:-
Hewlett-Packard Company,
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇ 20BQ,
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
▇▇▇.
Attention: General Counsel
THE BORROWER
The Common Seal of )
CHARTERED SILICON PARTNERS PTE LTD )
was hereunto affixed )
in the presence of:- )
/s/ ▇▇▇▇▇ ▇▇▇▇▇ Director
-----------------------------------------
/s/ ▇▇▇▇▇▇ ▇▇▇▇ Yong Director
-----------------------------------------
▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇,
▇▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇▇▇▇▇
Attention: Legal Department
5
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THE AGENT
Signed, Sealed and Delivered by )
Goh ▇▇▇▇▇ ▇▇▇▇▇ and ) sealed
▇▇▇▇ ▇▇▇▇ Fun as )
attorneys for and on behalf of ) /s/ Goh ▇▇▇▇▇ ▇▇▇▇▇
ABN AMRO BANK N.V., )
SINGAPORE BRANCH ) /s/ ▇▇▇▇ ▇▇▇▇ Fun
in the presence of:- )
/s/ Ong Yu En
----------------------------
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax Number: ▇▇▇▇▇▇▇
Telex Number: RS 24396
Attention: ▇▇ ▇▇▇▇ Toi Wee/▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
6