Exhibit 4.8
Confidential Treatment Requested:
The portions of this document marked by "xxxxx" have been omitted pursuant to
arequest for confidential treatment and have been filed separately with the
Securities and Exchange Commission
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
ADVOCATES & SOLICITORS
CONFORMED COPY
Dated 22 December 2004
CHARTERED SEMICONDUCTOR MANUFACTURING LTD.
AS BORROWER
and
BANK OF AMERICA, NATIONAL ASSOCIATION, SINGAPORE BRANCH
ACTING AS LENDER
US$50,000,000
FACILITY AGREEMENT
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ #▇▇-▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
TABLE OF CONTENTS
CLAUSE PAGE
1. DEFINITIONS AND INTERPRETATION................. 1
2. THE FACILITY................................... 7
3. PURPOSE........................................ 7
4. CONDITIONS OF UTILISATION...................... 7
5. UTILISATION.................................... 8
6. REPAYMENT...................................... 8
7. PREPAYMENT AND CANCELLATION.................... 9
8. INTEREST....................................... 10
9. INTEREST PERIODS............................... 11
10. CHANGES TO THE CALCULATION OF INTEREST......... 11
11. FEE............................................ 12
12. TAX GROSS UP AND INDEMNITIES................... 12
13. INCREASED COSTS................................ 14
14. OTHER INDEMNITIES.............................. 15
15. MITIGATION BY THE LENDER....................... 16
16. COSTS AND EXPENSES............................. 17
17. REPRESENTATIONS................................ 17
18. INFORMATION UNDERTAKINGS....................... 19
19. FINANCIAL COVENANTS............................ 21
20. GENERAL UNDERTAKINGS........................... 22
21. EVENTS OF DEFAULT.............................. 25
22. CHANGES TO THE LENDER.......................... 28
23. CHANGES TO THE BORROWER........................ 30
24. CONDUCT OF BUSINESS BY THE LENDER.............. 30
25. PAYMENT MECHANICS.............................. 30
26. SET-OFF........................................ 31
27. NOTICES........................................ 32
28. CALCULATIONS AND CERTIFICATES.................. 32
29. PARTIAL INVALIDITY............................. 33
30. REMEDIES AND WAIVERS........................... 33
31. AMENDMENTS AND WAIVERS......................... 33
32. COUNTERPARTS................................... 33
33. GOVERNING LAW.................................. 33
THE SCHEDULES
SCHEDULE PAGE
SCHEDULE 1 Conditions Precedent................... 34
SCHEDULE 2 Requests............................... 35
-1-
THIS AGREEMENT is dated 22 December 2004 and made between:
(1) CHARTERED SEMICONDUCTOR MANUFACTURING LTD. (the "BORROWER"); and
(2) BANK OF AMERICA, NATIONAL ASSOCIATION, SINGAPORE BRANCH as lender (the
"LENDER").
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"AFFILIATE" means, in relation to any person, a Subsidiary of that person
or a Holding Company of that person or any other Subsidiary of that
Holding Company.
"ASSOCIATED COMPANY" means, in relation to the Borrower, a corporation in
respect of which the Borrower beneficially owns, directly or indirectly,
at least 20 per cent. of the whole of its issued and paid-up capital.
"AUTHORISATION" means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration.
"AVAILABILITY PERIOD" means the period from and including the date of this
Agreement to and including the date which is 3 Months after the date of
this Agreement.
"AVAILABLE COMMITMENT" means the Lender's Commitment minus:
(a) the amount of any outstanding Loans; and
(b) in relation to any proposed Utilisation, the amount of any Loans
that are due to be made on or before the proposed Utilisation Date.
"BORROWINGS" has the meaning given to it in Clause 19 (Financial
Covenants).
"BREAK COSTS" means the amount (if any) by which:
(a) the interest (excluding the Margin) which the Lender should have
received for the period from the date of receipt of all or any part
of a Loan or Unpaid Sum to the last day of the current Interest
Period in respect of that Loan or Unpaid Sum, had the principal
amount or Unpaid Sum received been paid on the last day of that
Interest Period,
exceeds:
(b) the amount which the Lender would be able to obtain by placing an
amount equal to the principal amount or Unpaid Sum received by it on
deposit with a leading bank in the London interbank market for a
period starting on the Business Day following receipt or recovery
and ending on the last day of the current Interest Period.
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are open for general business in London and Singapore and (in
relation to any date for payment of US Dollars) New York City.
"COMMITMENT" means US$50,000,000, to the extent not cancelled, reduced or
transferred by the Lender under this Agreement.
"COMPLIANCE CERTIFICATE" means a certificate in form and substance
satisfactory to the Lender.
"CSP AGREEMENT" means the Credit Agreement dated 28 September 2000 made
between (1) Chartered Silicon Partners Pte Ltd, (2) the lead arrangers
named therein, (3) the arrangers named therein, (4) the co-arranger named
therein, (5) the lead manager named therein, (6) the manager named
therein, (7) the guarantor banks named therein, (8) the lending banks
named therein, (9) the agent named therein and (10) the security trustee
named therein.
"CSP DEBT SERVICE RESERVE ACCOUNT" means the deposit account opened and
maintained by the Borrower with the DSRA Account Bank (as defined in the
CSP Agreement), in accordance with the terms of the CSP Agreement.
"DEFAULT" means an Event of Default or any event or circumstance specified
in Clause 21 (Events of Default) which would (with the expiry of a grace
period and/or the giving of notice) be an Event of Default.
"EVENT OF DEFAULT" means any event or circumstance specified as such in
Clause 21 (Events of Default).
"EX-IM BANK" means the Export-Import Bank of the United States and
includes its successors in title.
"EX-IM BANK FACILITY" means the US$652,000,000 loan guarantee facility
granted or to be granted to the Borrower by Ex-Im Bank, to support the
funding provided or to be provided by ▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, N.A. to
finance the export of equipment and supply of services to the Borrower to
build Phase I of Fab 7.
"EX-IM BANK FACILITY ANTICIPATION ACCOUNT" means an account or accounts
opened and maintained or to be opened and maintained by the Borrower with
a financial institution nominated by the Borrower and reasonably
acceptable to Ex-Im Bank, in accordance with the terms of the Ex-Im Bank
Facility.
"FAB 7" means a silicon wafer fabrication facility in Singapore, owned and
designated as such by the Borrower.
"FACILITY" means the term loan facility made available under this
Agreement as described in Clause 2 (The Facility).
"FACILITY OFFICE" means the office or offices notified by the Lender to
the Borrower in writing as the office or offices through which it will
perform its obligations under this Agreement.
-2-
"FEE LETTER" means any letter or letters dated on or about the date of
this Agreement between the Borrower and the Lender setting out the
front-end fee referred to in Clause 11 (Fee).
"FINANCE DOCUMENT" means this Agreement and any other document designated
as such by the Lender and the Borrower.
"FINANCIAL INDEBTEDNESS" means, in relation to any person, any
indebtedness of that person for or in respect of:
(a) moneys borrowed by that person;
(b) any amount raised by acceptance under any acceptance credit facility
granted to that person;
(c) any amount raised by that person pursuant to any note purchase
facility or the issue of bonds, notes, debentures, loan stock or any
similar instrument;
(d) the amount of any liability of that person in respect of any lease
or hire purchase contract which would, in accordance with GAAP, be
treated as a finance or capital lease;
(e) receivables sold or discounted by that person (other than any
receivables to the extent they are sold or discounted on a
non-recourse basis);
(f) any amount raised by that person under any other transaction
(including any forward sale or purchase agreement) required by GAAP
to be shown as a borrowing in the audited consolidated balance sheet
of the Group;
(g) for the purpose of Clause 21.5 (Cross default) any derivative
transaction entered into by that person in connection with
protection against or benefit from fluctuation in any rate or price
(and, when calculating the value of any derivative transaction, only
the marked to market value shall be taken into account);
(h) shares of that person which are expressed to be redeemable;
(i) for the purpose of Clause 21.5 (Cross default) any counter-indemnity
obligation of that person in respect of a guarantee, indemnity,
bond, standby or documentary letter of credit or any other
instrument issued by a bank or financial institution; and
(j) the amount of any liability of that person in respect of any
guarantee or indemnity given by that person for any indebtedness of
any other person for or in respect of the items referred to in
paragraphs (a) to (f) and in paragraph (h) above in relation to such
other person.
"GAAP" means generally accepted accounting principles, standards and
practices in the United States.
-3-
"GOVERNMENTAL AGENCY" means any government or any governmental agency,
semi-governmental or judicial entity or authority (including, without
limitation, any stock exchange or any self-regulatory organisation
established under any law or regulation).
"GROUP" means the Borrower and its Subsidiaries for the time being.
"HOLDING COMPANY" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
"INTEREST PAYMENT DATE" means the last day of an Interest Period.
"INTEREST PERIOD" means, in relation to a Loan, each period determined in
accordance with Clause 9 (Interest Periods) and, in relation to an Unpaid
Sum, each period determined in accordance with Clause 8.3 (Default
interest).
"LIBOR" means, in relation to any Loan:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for US Dollars for the Interest
Period of that Loan) the rate quoted by the Lender to leading banks
in the London interbank market,
as of 11.00 a.m. on the Quotation Day for the offering of deposits in US
Dollars for a period comparable to the Interest Period for that Loan.
"LOAN" means a loan made or to be made under the Facility or the principal
amount outstanding for the time being of that loan.
"MARGIN" means XXXXX per cent. per annum.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on:
(a) the financial condition or business of the Borrower or on the
consolidated financial condition or business of the Group taken as a
whole; or
(b) the ability of the Borrower to perform and comply with its payment
or other material obligations under any Finance Document.
"MATERIAL SUBSIDIARY" means any of the Borrower's Subsidiaries whose
consolidated net revenues or consolidated net assets (as shown on the most
recent audited consolidated financial statements of such Subsidiary),
represents 10 per cent. or more of the consolidated net revenues or, as
the case may be, the consolidated net assets of the Borrower, as shown on
the most recent audited consolidated financial statements of the Borrower.
"MONTH" means a period starting on one day in a calendar month and ending
on the numerically corresponding day in the next calendar month, except
that:
(a) if the numerically corresponding day is not a Business Day, that
period shall end on the next Business Day in that calendar month in
which that period is to end if there is one, or if there is not, on
the immediately preceding Business Day; and
-4-
(b) if there is no numerically corresponding day in the calendar month
in which that period is to end, that period shall end on the last
Business Day in that calendar month.
The above rules will only apply to the last Month of any period.
"NET WORTH" has the meaning given to it in Clause 19 (Financial
Covenants).
"ORIGINAL FINANCIAL STATEMENTS" means, the audited consolidated financial
statements of the Group for the financial year ended 31 December 2003.
"PARTY" means a party to this Agreement.
"QUOTATION DAY" means, in relation to any period for which an interest
rate is to be determined, two Business Days before the first day of that
period.
"REPEATING REPRESENTATIONS" means each of the representations set out in
Clauses 17.1 (Status) to 17.4 (Power and authority), 17.7 (No default) and
17.10 (Pari passu ranking) to 17.12 (No proceedings pending or
threatened).
"SCREEN RATE" means the British Bankers Association Interest Settlement
Rate for US Dollars for the relevant period currently displayed on page
3750 of the Telerate screen. If the agreed page is replaced or service
ceases to be available, the Lender may specify another page or service
displaying the appropriate rate after consultation with the Borrower.
"SECURITY" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement or
arrangement having a similar effect.
"SELECTION NOTICE" means a notice substantially in the form set out in
Part II of Schedule 2 (Requests) given in accordance with Clause 9
(Interest Periods).
"SUBSIDIARY" means a subsidiary within the meaning of section 5 of the
Companies Act, Chapter 50 of Singapore.
"TAX" means any tax, levy, impost, duty or other charge or withholding of
a similar nature (including any penalty or interest payable in connection
with any failure to pay or any delay in paying any of the same).
"TEMASEK" means Temasek Holdings (Private) Limited, registration number
197401143C.
"TERMINATION DATE" means the date which is 36 Months after the date of
this Agreement.
"UNPAID SUM" means any sum due and payable but unpaid by the Borrower
under the Finance Documents.
"US DOLLARS" and "US$" means United States dollars.
"UTILISATION" means a utilisation of the Facility.
-5-
"UTILISATION DATE" means the date of a Utilisation, being the date on
which the relevant Loan is to be made.
"UTILISATION REQUEST" means a notice substantially in the form set out in
Part I of Schedule 2 (Requests).
1.2 CONSTRUCTION
(a) Unless a contrary indication appears, any reference in this Agreement to:
(i) the "LENDER", the "BORROWER" or either "PARTY" shall be construed
so as to include its successors in title, permitted assigns and
permitted transferees;
(ii) "ASSETS" includes present and future properties, revenues and
rights of every description;
(iii) one person being "CONTROLLED" by another means that that other
person (aa) owns directly or indirectly, more than 50 per cent. of
the whole of the issued share capital of any class of the share
capital of the Borrower which confers voting rights or voting
powers upon the holders of the share capital of such class to the
extent of their respective shareholdings or (bb) has the ability,
directly or indirectly, to influence any decision of, or to direct
or cause the direction of the management and policies (including
operations and maintenance decisions) of that person;
(iv) a "FINANCE DOCUMENT" or any other agreement or instrument is a
reference to that Finance Document or other agreement or instrument
as amended or novated;
(v) "INDEBTEDNESS" includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
(vi) a "PERSON" includes any person, firm, company, corporation,
government, state or agency of a state or any association, trust or
partnership (whether or not having separate legal personality) or
two or more of the foregoing;
(vii) a "REGULATION" includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law but if
not having the force of law, which is generally complied with by
those to whom it is addressed) of any governmental,
intergovernmental or supranational body, agency, department or
regulatory, self-regulatory or other relevant authority or
organisation;
(viii) a provision of law is a reference to that provision as amended or
re-enacted; and
(ix) a time of day is a reference to Singapore time unless otherwise
stated.
(b) Clause and Schedule headings are for ease of reference only.
-6-
(c) Unless a contrary indication appears, a term used in any other Finance
Document or in any notice or certificate given under or in connection with
any Finance Document has the same meaning in that Finance Document, notice
or certificate as in this Agreement.
(d) A Default is "CONTINUING" if it has not been remedied or waived.
1.3 THIRD PARTY RIGHTS
(a) Unless expressly provided to the contrary in this Agreement, a person who
is not a Party has no right under the Contracts (Rights of Third Parties)
Act, Chapter 53B of Singapore to enforce or to enjoy the benefit of any
term of this Agreement.
(b) Notwithstanding any terms of this Agreement, the consent of any third
party is not required for any variation (including any release or
compromise of any liability under) or termination of this Agreement.
2. THE FACILITY
Subject to the terms of this Agreement, the Lender makes available to the
Borrower a term loan facility in an amount equal to the Commitment.
3. PURPOSE
3.1 PURPOSE
The Borrower shall apply all amounts borrowed by it under the Facility
towards funding its capital expenditure and for its general corporate
funding purposes.
3.2 MONITORING
The Lender is not bound to monitor or verify the application of any amount
borrowed pursuant to this Agreement.
4. CONDITIONS OF UTILISATION
4.1 INITIAL CONDITIONS PRECEDENT
The Borrower may not deliver a Utilisation Request unless the Lender has
received all of the documents and other evidence listed in Schedule 1
(Conditions Precedent) in form and substance satisfactory to the Lender.
The Lender shall notify the Borrower promptly upon being so satisfied.
4.2 FURTHER CONDITIONS PRECEDENT
The Lender will only be obliged to comply with Clause 5.4 (Availability of
Loans) if on the date of the Utilisation Request and on the proposed
Utilisation Date:
(a) no Default is continuing or would result from the proposed Loan; and
(b) the Repeating Representations to be made by the Borrower are true in
all material respects.
-7-
5. UTILISATION
5.1 DELIVERY OF A UTILISATION REQUEST
The Borrower may utilise the Facility by delivery to the Lender of a duly
completed Utilisation Request not later than 11:00 a.m. two Business Days
before the proposed Utilisation Date (or such later time as the Lender may
agree).
5.2 COMPLETION OF A UTILISATION REQUEST
(a) Each Utilisation Request is irrevocable and will not be regarded as having
been duly completed unless:
(i) the proposed Utilisation Date is a Business Day within the
Availability Period;
(ii) the currency and amount of the Utilisation comply with Clause 5.3
(Currency and amount);
(iii) the proposed Interest Period complies with Clause 9 (Interest
Periods); and
(iv) it specifies the account and bank (which must be in New York City)
to which the proceeds of the Utilisation are to be credited.
(b) Only one Loan may be requested in each Utilisation Request.
5.3 CURRENCY AND AMOUNT
(a) The currency specified in a Utilisation Request must be US Dollars.
(b) The amount of the proposed Loan must be:
(i) (in the case of the first Loan) a minimum of US$10,000,000 (or a
higher integral multiple of US$1,000,000) and (in the case of any
other Loan) a minimum of US$1,000,000 (or a higher integral multiple
of US$1,000,000) or, if less, the Available Commitment; and
(ii) in any event such that it is less than or equal to the Available
Commitment.
5.4 AVAILABILITY OF LOANS
If the conditions set out in this Agreement have been met, the Lender
shall make each Loan available through its Facility Office.
6. REPAYMENT
6.1 REPAYMENT OF LOANS
The Borrower shall repay each Loan on the Termination Date.
6.2 REBORROWING
The Borrower may not reborrow any part of the Facility which is repaid.
-8-
7. PREPAYMENT AND CANCELLATION
7.1 ILLEGALITY
If it becomes unlawful in Singapore or the jurisdiction of its head office
or its Facility Office for the Lender to perform any of its obligations as
contemplated by this Agreement or to fund or maintain any Loan:
(a) the Lender shall promptly notify the Borrower upon becoming aware of
that event;
(b) upon the Lender notifying the Borrower, the Commitment will be
immediately cancelled; and
(c) the Borrower shall repay the Loans on the last day of the Interest
Period for each Loan occurring after the Lender has notified the
Borrower or, if earlier, the date specified by the Lender in the
notice delivered to the Borrower (being no earlier than the last day
of any applicable grace period permitted by law).
7.2 CHANGE OF CONTROL
If Temasek ceases to (a) control the Borrower or (b) own (directly or
indirectly) at least 30 per cent. of the ordinary issued shares of the
Borrower:
(i) the Borrower shall promptly notify the Lender upon becoming aware of
that event;
(ii) the Borrower may not deliver a Utilisation Request unless otherwise
agreed by the Lender; and
(iii) the Lender may, by not less than 30 days' prior notice to the
Borrower, cancel the Facility and declare all outstanding Loans,
together with accrued interest, and all other amounts accrued under
the Finance Documents immediately due and payable, whereupon the
Facility will be cancelled and all such outstanding amounts will
become immediately due and payable.
7.3 VOLUNTARY CANCELLATION
The Borrower may, if it gives the Lender not less than five Business Days'
prior notice, cancel the whole or any part (being a minimum amount of
US$1,000,000 or a higher integral multiple of US$1,000,000) of the
Available Commitment.
7.4 VOLUNTARY PREPAYMENT OF LOANS
The Borrower may, if it gives the Lender not less than five Business Days'
prior notice, prepay the whole or any part of any Loan (but if in part,
being an amount that reduces the amount of the Loan by a minimum amount of
US$5,000,000 or a higher integral multiple of US$1,000,000).
7.5 RESTRICTIONS
(a) Any notice of cancellation or prepayment given by either Party under this
Clause 7 shall be irrevocable and, unless a contrary indication appears in
this Agreement, shall specify
-9-
the date or dates upon which the relevant cancellation or prepayment is to
be made and the amount of that cancellation or prepayment.
(b) Any prepayment under this Agreement shall be made together with accrued
interest on the amount prepaid and, subject to any Break Costs, without
premium or penalty.
(c) The Borrower may not reborrow any part of the Facility which is prepaid.
(d) The Borrower shall not repay or prepay all or any part of the Loans or
cancel all or any part of the Commitment except at the times and in the
manner expressly provided for in this Agreement.
(e) No amount of the Commitment cancelled under this Agreement may be
subsequently reinstated.
8. INTEREST
8.1 CALCULATION OF INTEREST
The rate of interest on each Loan for each Interest Period is the
percentage rate per annum which is the aggregate of:
(a) the Margin; and
(b) the applicable LIBOR.
8.2 PAYMENT OF INTEREST
The Borrower shall pay accrued interest on each Loan on the Interest
Payment Date.
8.3 DEFAULT INTEREST
(a) If the Borrower fails to pay any amount payable by it under a Finance
Document on its due date, interest shall accrue on the overdue amount from
the due date up to the date of actual payment (both before and after
judgment) at a rate which, subject to paragraph (b) below, is the sum of
two per cent. and the rate which would have been payable if the overdue
amount had, during the period of non-payment, constituted a Loan for
successive Interest Periods, each of a duration selected by the Lender
(acting reasonably). Any interest accruing under this Clause 8.3 shall be
immediately payable by the Borrower on demand by the Lender.
(b) If any overdue amount consists of all or part of a Loan which became due
on a day which was not the last day of an Interest Period relating to that
Loan:
(i) the first Interest Period for that overdue amount shall have a
duration equal to the unexpired portion of the current Interest
Period relating to that Loan; and
(ii) the rate of interest applying to the overdue amount during that
first Interest Period shall be the sum of two per cent. and the rate
which would have applied if the overdue amount had not become due.
-10-
(c) Default interest (if unpaid) arising on an overdue amount will be
compounded with the overdue amount at the end of each Interest Period
applicable to that overdue amount but will remain immediately due and
payable.
8.4 NOTIFICATION OF RATES OF INTEREST
The Lender shall promptly notify the Borrower of the determination of a
rate of interest under this Agreement.
9. INTEREST PERIODS
9.1 SELECTION OF INTEREST PERIODS
(a) The Borrower may select an Interest Period for a Loan in the Utilisation
Request for that Loan or (if the Loan has already been borrowed) in a
Selection Notice.
(b) Each Selection Notice for a Loan is irrevocable and must be delivered to
the Lender by the Borrower not later than 10:00 a.m. two Business Days
before the first day of the relevant Interest Period.
(c) If the Borrower fails to deliver a Selection Notice to the Lender in
accordance with paragraph (b) above, the relevant Interest Period will be
six Months.
(d) Subject to this Clause 9, the Borrower may select an Interest Period of
one, two, three or six Months or any other period agreed between the
Borrower and the Lender.
(e) An Interest Period for a Loan shall not extend beyond the Termination Date
and the Borrower may select an Interest Period of less than one Month
ending on the Termination Date.
(f) Each Interest Period for a Loan shall start on the Utilisation Date or (if
already made) on the last day of its preceding Interest Period.
9.2 NON-BUSINESS DAYS
If an Interest Period would otherwise end on a day which is not a Business
Day, that Interest Period will instead end on the next Business Day in
that calendar month (if there is one) or the preceding Business Day (if
there is not).
10. CHANGES TO THE CALCULATION OF INTEREST
10.1 MARKET DISRUPTION
(a) If a Market Disruption Event occurs in relation to a Loan for any Interest
Period, then the rate of interest on that Loan for the Interest Period
shall be the rate per annum which is the sum of:
(i) the Margin; and
(ii) the rate notified to the Borrower by the Lender as soon as
practicable and in any event before interest is due to be paid in
respect of that Interest Period, to be that which expresses as a
percentage rate per annum the cost to the Lender of funding that
Loan from whatever source it may reasonably select.
-11-
(b) In this Agreement "MARKET DISRUPTION EVENT" means:
(i) at or about noon (London time) on the Quotation Day for the relevant
Interest Period the Screen Rate is not available and the Lender is
unable to provide a quotation to determine LIBOR for US Dollars and
the relevant Interest Period; or
(ii) (where LIBOR is determined by reference to the Screen Rate) before
close of business in London on the Quotation Day for the relevant
Interest Period, the Borrower receives notification from the Lender
that the cost to it of obtaining matching deposits in the London
interbank market would be in excess of LIBOR.
10.2 ALTERNATIVE BASIS OF INTEREST OR FUNDING
(a) If a Market Disruption Event occurs and the Lender or the Borrower so
requires, the Lender and the Borrower shall enter into negotiations (for a
period of not more than thirty days) with a view to agreeing a substitute
basis for determining the rate of interest.
(b) Any alternative basis agreed pursuant to paragraph (a) above in relation
to any Interest Period shall, with the prior consent of the Lender and the
Borrower:
(i) be binding on both Parties; and
(ii) override and replace the rate of interest determined under Clause
10.1(a) on that Loan for that Interest Period.
10.3 BREAK COSTS
(a) The Borrower shall, within five Business Days of demand by the Lender, pay
to the Lender its Break Costs attributable to all or any part of a Loan or
an Unpaid Sum being paid by the Borrower on a day other than on an
Interest Payment Date for that Loan or that Unpaid Sum.
(b) The Lender shall, together with its demand made pursuant to paragraph (a)
above, provide a certificate confirming the amount and, in reasonable
detail, the basis of calculation, of its Break Costs for any Interest
Period in which they accrue.
11. FEE
The Borrower shall pay to the Lender a front-end fee in the amount and at
the time agreed in a Fee Letter.
12. TAX GROSS UP AND INDEMNITIES
12.1 DEFINITIONS
(a) In this Clause 12:
"TAX CREDIT" means a credit against, relief or remission for, or repayment
of any Tax.
"TAX DEDUCTION" means a deduction or withholding for or on account of Tax
from a payment under a Finance Document.
-12-
"TAX PAYMENT" means an increased payment made by the Borrower to the
Lender under Clause 12.2 (Tax gross-up) or a payment under Clause 12.3
(Tax indemnity).
(b) In this Clause 12 a reference to "DETERMINES" or "DETERMINED" means a
determination made reasonably by the person making that determination.
12.2 TAX GROSS-UP
(a) The Borrower shall make all payments to be made by it without any Tax
Deduction, unless a Tax Deduction is required by law, in which case the
amount of the payment due from it shall be increased to an amount which
(after making any Tax Deduction) leaves an amount equal to the payment
which would have been due if no Tax Deduction had been required.
(b) The Borrower shall promptly upon becoming aware that it must make a Tax
Deduction (or that there is any change in the rate or the basis of a Tax
Deduction) notify the Lender accordingly.
(c) If the Borrower is required to make a Tax Deduction, it shall make that
Tax Deduction and any payment required in connection with that Tax
Deduction within the time allowed and in the minimum amount required by
law.
(d) Within thirty days of making either a Tax Deduction or any payment
required in connection with that Tax Deduction, the Borrower shall deliver
to the Lender evidence reasonably satisfactory to the Lender that the Tax
Deduction has been made or (as applicable) any appropriate payment has
been paid to the relevant taxing authority.
12.3 TAX INDEMNITY
(a) If the Lender is or will be subject to any liability, or required to make
any payment, for or on account of Tax in relation to a sum received or
receivable (or any sum deemed for the purposes of Tax to be received or
receivable) under a Finance Document, then the Borrower shall (within five
Business Days of demand by the Lender) pay to the Lender an amount equal
to the loss, liability or cost which the Lender determines has been
suffered for or on account of Tax by it in respect of a Finance Document.
(b) Paragraph (a) above shall not apply with respect to any Tax imposed on the
Lender:
(i) under the law of the jurisdiction in which the Lender is
incorporated; or
(ii) under the law of the jurisdiction in which the Lender's Facility
Office is located,
if that Tax is calculated by reference to the net income received or
receivable (but not any sum deemed to be received or receivable) by the
Lender.
(c) If the Lender makes, or intends to make, a claim under paragraph (a)
above, it shall promptly notify the Borrower in writing of the event which
will give, or has given, rise to the claim.
12.4 TAX CREDIT
If the Borrower makes a Tax Payment and the Lender determines that:
-13-
(a) a Tax Credit is attributable either to an increased payment of which
that Tax Payment forms part or to that Tax Payment; and
(b) the Lender has obtained and utilised that Tax Credit,
the Lender shall pay an amount to the Borrower which the Lender determines
will leave it (after that payment) in no better and no worse position in
respect of its worldwide Tax liabilities than it would have been in had
the Tax Payment not been required to be made by the Borrower.
12.5 STAMP TAXES
The Borrower shall within five Business Days of demand, pay and indemnify
the Lender against any cost, loss or liability the Lender incurs in
relation to all stamp duty, registration and other similar Taxes payable
in respect of any Finance Document.
12.6 GOODS AND SERVICES TAX
The Borrower shall also, within five Business Days of demand, in addition
to any amount payable by the Borrower to the Lender under a Finance
Document, pay any goods and services, value added or similar Tax payable
in respect of that amount (and references in that Finance Document to that
amount shall be deemed to include any such Taxes payable in addition to
it).
13. INCREASED COSTS
13.1 INCREASED COSTS
(a) Subject to Clause 13.3 (Exceptions) and Clause 22.2 (Conditions of
assignment or transfer) the Borrower shall, within five Business Days of a
demand by the Lender, pay the Lender the amount of any Increased Costs
incurred by the Lender or its Holding Company as a result of (i) the
introduction of or any change in (or in the interpretation, administration
or application of) any law or regulation in Singapore or the jurisdiction
of its head office, Facility Office or Holding Company in each case, after
the date of this Agreement or (ii) compliance with any law or regulation
in Singapore or the jurisdiction of its head office, Facility Office or
Holding Company made after the date of this Agreement.
(b) In this Agreement "INCREASED COSTS" means:
(i) a reduction in the rate of return from the Facility or on the
Lender's (or its Holding Company's) overall capital;
(ii) an additional or increased cost; or
(iii) a reduction of any amount due and payable under any Finance
Document,
which is incurred or suffered by the Lender or its Holding Company to the
extent that it is attributable to the Lender having entered into its
Commitment or funding or performing its obligations under any Finance
Document.
-14-
13.2 INCREASED COST CLAIMS
(a) If the Lender intends to make a claim pursuant to Clause 13.1 (Increased
costs) it shall notify the Borrower of the event giving rise to the claim.
(b) The Lender shall, together with its notification to the Borrower pursuant
to paragraph (a) above, provide a certificate confirming the amount and,
in reasonable detail, the basis for its claim of its Increased Costs.
13.3 EXCEPTIONS
(a) Clause 13.1 (Increased costs) does not apply to the extent any Increased
Cost is:
(i) attributable to a Tax Deduction required by law to be made by the
Borrower;
(ii) compensated for by Clause 12.3 (Tax indemnity) (or would have been
compensated for under Clause 12.3 (Tax indemnity) but was not so
compensated solely because any of the exclusions in paragraph (b) of
Clause 12.3 (Tax indemnity) applied); or
(iii) attributable to the breach by the Lender or its Holding Company of
any law or regulation or is an amount which would not have been
payable by the Lender or its Holding Company but for its negligence
in failing to comply with any law or regulation.
(b) In this Clause 13.3, a reference to a "TAX DEDUCTION" has the same meaning
given to the term in Clause 12.1 (Definitions).
14. OTHER INDEMNITIES
14.1 CURRENCY INDEMNITY
(a) If any sum due from the Borrower under the Finance Documents (a "SUM"), or
any order, judgment or award given or made in relation to a Sum, has to be
converted from the currency (the "FIRST CURRENCY") in which that Sum is
payable into another currency (the "SECOND CURRENCY") for the purpose of:
(i) making or filing a claim or proof against the Borrower; or
(ii) obtaining or enforcing an order, judgment or award in relation to
any litigation or arbitration proceedings,
the Borrower shall as an independent obligation, within five Business Days
of demand, indemnify the Lender against any cost, loss or liability
arising out of or as a result of the conversion including any discrepancy
between (A) the rate of exchange used to convert that Sum from the First
Currency into the Second Currency and (B) the rate or rates of exchange
available to that person at the time of its receipt of that Sum.
(b) The Borrower waives any right it may have in any jurisdiction to pay any
amount under the Finance Documents in a currency or currency unit other
than that in which it is expressed to be payable.
-15-
14.2 OTHER INDEMNITIES
The Borrower shall, within five Business Days of demand, indemnify the
Lender against any cost, loss or liability incurred by the Lender as a
result of:
(a) the occurrence of any Event of Default;
(b) a failure by the Borrower to pay any amount due under a Finance
Document on its due date;
(c) funding, or making arrangements to fund, the Loan requested by the
Borrower in the Utilisation Request but not made by reason of the
operation of any one or more of the provisions of this Agreement
(other than by reason of default or negligence by the Lender alone);
or
(d) the Loan (or part of the Loan) not being prepaid in accordance with
a notice of prepayment given by the Borrower.
14.3 INDEMNITY TO THE LENDER
The Borrower shall promptly indemnify the Lender against any cost, loss or
liability incurred by the Lender (acting reasonably) as a result of:
(a) investigating (after consultation with the Borrower) any event which
it reasonably believes is a Default; or
(b) acting or relying on any notice, request or instruction by the
Borrower which it reasonably believes to be genuine, correct and
appropriately authorised.
15. MITIGATION BY THE LENDER
15.1 MITIGATION
(a) The Lender shall, in consultation with the Borrower, take all reasonable
steps to mitigate any circumstances which arise and which would result in
any amount becoming payable under, or cancelled pursuant to, any of Clause
7.1 (Illegality), Clause 12 (Tax Gross Up and Indemnities) or Clause 13
(Increased Costs) including (but not limited to) transferring its rights
and obligations under the Finance Documents to another Affiliate or
Facility Office.
(b) Paragraph (a) above does not in any way limit the obligations of the
Borrower under the Finance Documents.
15.2 LIMITATION OF LIABILITY
(a) The Borrower shall indemnify the Lender for all costs and expenses
reasonably incurred by the Lender as a result of steps taken by it under
Clause 15.1 (Mitigation).
(b) The Lender is not obliged to take any steps under Clause 15.1 (Mitigation)
if, in its opinion (acting reasonably), to do so is likely to be
prejudicial to it.
-16-
16. COSTS AND EXPENSES
16.1 TRANSACTION EXPENSES
The Borrower shall within five Business Days of demand pay the Lender the
amount of all costs and expenses (including legal fees) reasonably
incurred by it in connection with the negotiation, preparation, printing
and execution of:
(a) this Agreement and any other Finance Documents referred to in this
Agreement; and
(b) any other Finance Documents executed after the date of this
Agreement.
16.2 AMENDMENT COSTS
If the Borrower requests an amendment, waiver or consent, the Borrower
shall, within five Business Days of demand, reimburse the Lender for the
amount of all costs and expenses (including legal fees) reasonably
incurred by the Lender in responding to, evaluating, negotiating or
complying with that request.
16.3 ENFORCEMENT COSTS
The Borrower shall, within five Business Days of demand, pay to the Lender
the amount of all costs and expenses (including legal fees) incurred by
the Lender in connection with the enforcement of, or the preservation of
any rights under, any Finance Document.
17. REPRESENTATIONS
The Borrower makes the representations and warranties set out in this
Clause 17 to the Lender on the date of this Agreement.
17.1 STATUS
(a) It is a corporation, duly incorporated and validly existing under the law
of Singapore.
(b) It and each of its Subsidiaries has the power to own its assets and carry
on its business as it is being conducted.
17.2 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in each Finance Document
are, subject to any general principles of law limiting its obligations
which are specifically referred to in any legal opinion delivered to and
accepted by the Lender pursuant to Clause 4 (Conditions of Utilisation),
legal, valid, binding and enforceable obligations.
17.3 NON-CONFLICT WITH OTHER OBLIGATIONS
The entry into and performance by it of, and the transactions contemplated
by, the Finance Documents do not and will not conflict with:
(a) any law or regulation applicable to it;
(b) its constitutional documents; or
-17-
(c) any agreement or instrument binding upon it or any of its assets or
(to an extent which would have a Material Adverse Effect on it) any
of its Subsidiaries or any of its Subsidiaries' assets.
17.4 POWER AND AUTHORITY
It has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery of,
the Finance Documents and the transactions contemplated by the Finance
Documents.
17.5 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All Authorisations required:
(a) to enable it lawfully to enter into, exercise its rights and comply
with its obligations in the Finance Documents; and
(b) to make the Finance Documents admissible in evidence in Singapore,
have been obtained or effected and are in full force and effect.
17.6 NO FILING OR STAMP TAXES
It is not necessary, under Singapore law, that the Finance Documents be
filed, recorded or enrolled with any court or other authority in that
jurisdiction or that any stamp, registration or similar tax be paid on or
in relation to the Finance Documents or the transactions contemplated by
the Finance Documents.
17.7 NO DEFAULT
(a) No Event of Default is continuing or might reasonably be expected to
result from the making of any Utilisation.
(b) No other event or circumstance is outstanding which constitutes a default
under any other agreement or instrument which is binding on it or any of
its Subsidiaries or to which its (or its Subsidiaries') assets are subject
which, in each case, might reasonably be expected to have a Material
Adverse Effect.
17.8 NO MISLEADING INFORMATION
(a) Any material written factual information provided by it in relation to any
Finance Document was true and accurate in all material respects as at the
date it was provided or as at the date (if any) at which it is stated.
(b) Nothing has occurred or been omitted from the factual information so
provided that results in the information referred to in paragraph (a)
above provided by it being untrue or misleading in any material respect.
17.9 FINANCIAL STATEMENTS
(a) Its Original Financial Statements were prepared in accordance with GAAP
consistently applied.
(b) Its Original Financial Statements give a true and fair view of its
consolidated financial condition and operations as at the end of and for
the relevant financial year.
-18-
(c) There has been no change in its financial condition (or the consolidated
financial condition of the Group) since 30 September 2004 which has a
material adverse effect on the ability of the Borrower to perform and
comply with its payment or other material obligations under this
Agreement.
17.10 PARI PASSU RANKING
Its payment obligations under the Finance Documents rank pari passu with
the claims of all its other unsecured and unsubordinated creditors, except
for obligations mandatorily preferred by law in Singapore applying to
companies generally.
17.11 WINDING-UP
No meeting has been convened for the winding-up of it or any of its
Subsidiaries or for the appointment of a receiver, trustee, judicial
manager, administrator, administrative receiver, compulsory manager or
other similar officer of it, any of its Subsidiaries or any of their
respective assets, no such step is intended by it or any of its
Subsidiaries and, so far as it is aware, no petition, application or the
like is outstanding for the winding-up of it or any of its Subsidiaries or
for the appointment of a receiver, trustee, judicial manager,
administrator, administrative receiver, compulsory manager or other
similar officer of it, any of its Subsidiaries or any of their respective
assets or any of them.
17.12 NO PROCEEDINGS PENDING OR THREATENED
No litigation, arbitration or administrative proceedings of or before any
court, arbitral body or agency which, if adversely determined, might
reasonably be expected to have a Material Adverse Effect have (to the best
of its knowledge and belief) been started or threatened against it or any
of its Subsidiaries.
17.13 REPETITION
The Repeating Representations are deemed to be made by the Borrower by
reference to the facts and circumstances then existing on the date of each
Utilisation Request and on each Interest Payment Date.
18. INFORMATION UNDERTAKINGS
The undertakings in this Clause 18 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
18.1 FINANCIAL STATEMENTS
(a) The Borrower shall supply to the Lender:
(i) as soon as the same become available, but in any event within 180
days after the end of each of its financial years, its audited
consolidated financial statements for that financial year; and
(ii) as soon as the same become available, but in any event within 60
days after the end of each quarter of each of its financial years,
its unaudited consolidated financial statements for that financial
quarter.
-19-
(b) The Borrower shall be deemed to have complied with its respective
obligations under each of Clause 18.1(a), Clause 18.4(a)(i) and/or Clause
18.4(b), so long as it shall have complied with the requirements of any
Governmental Agency with respect to the public filing of annual reports,
quarterly reports and any other documents from time to time required to be
publicly filed by such Governmental Agenc(ies).
18.2 COMPLIANCE CERTIFICATE
(a) The Borrower shall supply to the Lender, with each set of financial
statements delivered pursuant to Clause 18.1 (Financial statements), a
Compliance Certificate setting out (in reasonable detail) computations as
to compliance with Clause 19 (Financial Covenants) as at the date as at
which those financial statements were drawn up.
(b) Each Compliance Certificate shall be signed by a director or an authorised
signatory of the Borrower.
18.3 REQUIREMENTS AS TO FINANCIAL STATEMENTS
(a) Each set of financial statements delivered by the Borrower pursuant to
Clause 18.1 (Financial statements) shall (unless certified by the
Borrower's auditors) be certified by a director, an authorised signatory
or senior officer on its behalf as giving a true and fair view of its
consolidated financial condition and operations as at the end of and for
the period in relation to which those financial statements were drawn up.
(b) The Borrower shall procure that each set of financial statements delivered
pursuant to Clause 18.1 (Financial statements) is prepared using GAAP.
18.4 INFORMATION: MISCELLANEOUS
The Borrower shall supply to the Lender:
(a) at the same time as they are despatched, all documents despatched by
the Borrower to:
(i) its shareholders (or any class of them); or
(ii) its creditors generally;
(b) promptly upon becoming aware of them, the details of any litigation,
arbitration or administrative proceedings which are current,
threatened or pending against any member of the Group, and which
would, if adversely determined, be reasonably expected to have a
Material Adverse Effect; and
(c) promptly, such further information regarding the financial
condition, business and operations of any member of the Group as the
Lender may reasonably request, except to the extent that:
(i) disclosure of such information would breach any law,
regulation or stock exchange requirement; or
(ii) where the Borrower is of the reasonable opinion that the
information is of a price-sensitive nature or is of a
proprietary nature and its disclosure would be prejudicial to
any member of the Group,
-20-
Provided that such information shall be promptly supplied to
the Lender, in accordance with this Clause 18.4 in the event
that it should subsequently request for the same if, at the
time of such subsequent request, the Borrower has determined
in good faith that (A) such disclosure would not result in
such a breach or, as the case may be, (B) such opinion no
longer applies.
18.5 NOTIFICATION OF DEFAULT
(a) The Borrower shall notify the Lender of any Default (and the steps, if
any, being taken to remedy it) promptly upon becoming aware of its
occurrence.
(b) Promptly upon a request by the Lender, the Borrower shall supply to the
Lender a certificate signed by a director, an authorised signatory or a
senior officer on its behalf certifying that no Default is continuing (or
if a Default is continuing, specifying the Default and the steps, if any,
being taken to remedy it).
19. FINANCIAL COVENANTS
19.1 FINANCIAL CONDITION
The Borrower shall ensure that:
(a) Net Worth will not at any time be less than US$1,000,000,000; and
(b) Borrowings will not at any time exceed 180 per cent. of Net Worth.
19.2 FINANCIAL COVENANT CALCULATIONS
(a) Borrowings and Net Worth shall be calculated and interpreted on a
consolidated basis in accordance with the GAAP applicable to the
Original Financial Statements and shall be expressed in US Dollars.
(b) Borrowings and Net Worth shall be determined (except as needed to
reflect the terms of this Clause 19) from the financial statements
of the Group and Compliance Certificates delivered under Clause 18.1
(Financial statements) and Clause 18.2 (Compliance Certificate).
19.3 DEFINITIONS
In this Clause 19.3:
"BORROWINGS" means, as at any particular time, the aggregate outstanding
principal, capital or nominal amount (and any fixed or minimum premium
payable on prepayment or redemption) of the Financial Indebtedness of
members of the Group (other than any indebtedness referred to in
paragraphs (g) and (i) of the definition of Financial Indebtedness and any
guarantee or indemnity in respect of that indebtedness).
For this purpose, any amount outstanding or repayable in a currency other
than US Dollars shall on that day be taken into account in its US Dollars
equivalent at the rate of exchange that would have been used had an
audited consolidated balance sheet of the Group been prepared as at that
day in accordance with the GAAP applicable to the Original Financial
Statements.
-21-
"NET WORTH" means, as at any particular time, the aggregate of:
(a) the amount paid up or credited as paid up on the issued share
capital of the Borrower other than any shares which are expressed to
be redeemable; and
(b) the amount standing to the credit of the consolidated reserves of
the Group,
less (but without double counting) any amount included in the above which
is attributable to:
(i) amounts set aside for Tax;
(ii) minority interests;
(iii) the amount by which the net book value of any asset has been
written up after the date of the latest audited consolidated
financial statements delivered pursuant to Clause 18.1(a) (or,
in the case of a person becoming a member of the Group after
that date, the date on which that person became or becomes a
member of the Group) by way of revaluation or on its transfer
from one member of the Group to another; and
(iv) any dividend or other distribution declared, recommended or
made by any member of the Group,
but ignoring any variation in the credit or debit balance on the Group
consolidated profit and loss account since the date of the then latest
audited consolidated balance sheet of the Group except to the extent
reflected in any later Group consolidated profit and loss statement
delivered to the Lender under Clause 18 (Information Undertakings).
20. GENERAL UNDERTAKINGS
The undertakings in this Clause 20 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
20.1 AUTHORISATIONS
The Borrower shall promptly:
(a) obtain, comply with and do all that is necessary to maintain in full
force and effect; and
(b) supply certified copies to the Lender of,
any Authorisation required under any law or regulation of Singapore to
enable it to perform its obligations under the Finance Documents and to
ensure the legality, validity, enforceability or admissibility in evidence
in Singapore of any Finance Document.
-22-
20.2 COMPLIANCE WITH LAWS
The Borrower shall comply in all respects with all laws to which it may be
subject, if failure so to comply would materially impair its ability to
perform its obligations under the Finance Documents.
20.3 NEGATIVE PLEDGE
(a) The Borrower shall not (and shall ensure that no other member of the Group
will) create or permit to subsist any Security over any of its assets.
(b) The Borrower shall not (and shall ensure that no other member of the Group
will):
(i) sell, transfer or otherwise dispose of any of its assets on terms
whereby they are or may be leased to or re-acquired by any other
member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on
recourse terms;
(iii) enter into any arrangement under which money or the benefit of a
bank or other account may be applied, set-off or made subject to a
combination of accounts; or
(iv) enter into any other preferential arrangement having a similar
effect,
in circumstances where the arrangement or transaction is entered into
primarily as a method of raising Financial Indebtedness or of financing
the acquisition of an asset.
(c) Paragraphs (a) and (b) above do not apply to:
(i) the Security over the CSP Debt Service Reserve Account and the
amounts from time to time deposited and held therein, created in
favour of the Security Trustee under the CSP Agreement, provided
that the aggregate of all amounts deposited and held in the CSP Debt
Service Reserve Account shall not at any time exceed US$129,000,000;
(ii) any netting or set-off arrangement entered into by any member of the
Group in the ordinary course of its banking arrangements for the
purpose of netting debit and credit balances;
(iii) any lien arising by operation of law (or by an agreement evidencing
the same) and in the ordinary course of business;
(iv) any Security over or affecting any asset acquired by a member of the
Group after the date of this Agreement if:
(A) the Security was not created in contemplation of the
acquisition of that asset by a member of the Group; and
(B) the principal amount secured has not been increased in
contemplation of or since the acquisition of that asset by a
member of the Group;
(v) any Security created or to be created in favour of Ex-Im Bank over
the Ex-Im Bank Facility Anticipation Account and the amounts from
time to time deposited and held in the Ex-Im Bank Facility
Anticipation Account, provided that the
-23-
aggregate of all amounts deposited and held in the Ex-Im Bank
Facility Anticipation Account shall not at any time exceed
US$150,000,000;
(vi) any Security created in or over any property or asset acquired
after the date of this Agreement for the sole purpose of financing
or refinancing that acquisition or financing or refinancing its
development after the date of this Agreement and securing any
amount not exceeding the cost of that acquisition or, as the case
may be, development;
(vii) any Security created pursuant to any Finance Document;
(viii) any Security created with the prior consent in writing of the
Lender; and
(ix) any other Security created by any member of the Group over any of
its assets and not falling within paragraphs (i) to (viii) above
Provided that the aggregate book value of all such assets which are
subject to such Security does not at any time exceed US$300,000,000
(or its equivalent in another currency or currencies).
20.4 DISPOSALS
(a) The Borrower shall not (and shall ensure that no other member of the Group
will) enter into a single transaction or a series of transactions (whether
related or not and whether voluntary or involuntary) to sell, lease,
transfer or otherwise dispose of any asset.
(b) Paragraph (a) above does not apply to any sale, lease, transfer or other
disposal:
(i) made in the ordinary course of trading and operations of the
disposing entity (including, without limitation, sales of products
and stock-in-trade in its manufacturing business);
(ii) made by any member of the Group on arm's length terms to another
member of the Group or to an Associated Company of the Borrower;
(iii) of assets in exchange for other assets comparable or superior as to
type, value and quality;
(iv) of obsolete or surplus assets no longer required for the efficient
operation of the disposing entity's business;
(v) made with the prior consent in writing of the Lender;
(vi) of current receivables under or in connection with securitisation
arrangements on arm's length terms and/or for valuable
consideration; or
(vii) of any assets by any member of the Group where the higher of the
market value or consideration receivable (when aggregated with the
higher of the market value or consideration receivable for any
other sale, lease, transfer or other disposal of any other assets)
(to the extent not permitted under paragraphs (i) to (vi) above)
does not exceed (a) US$400,000,000 (or its equivalent in another
currency or currencies) in any financial year and (b)
US$1,000,000,000 during
-24-
the period commencing from the date of this Agreement to the date
falling 36 Months from the date of this Agreement.
20.5 MERGER
The Borrower shall not (and shall ensure that no other member of the Group
will) enter into any amalgamation, demerger, merger or corporate
reconstruction without the prior written consent of the Lender (such
consent not to be unreasonably withheld).
20.6 CHANGE OF BUSINESS
The Borrower shall procure that no substantial change is made to the
general nature of the business of the Borrower from that carried on at the
date of this Agreement without the prior written consent of the Lender
(such consent not to be unreasonably withheld).
20.7 DIVIDENDS
The Borrower shall not declare, pay or make any dividend or other dividend
distribution to any of its shareholders without the prior consent in
writing of the Lender if (a) any Event of Default has occurred and is
continuing or (b) the Borrower does not comply with any provision of the
Finance Documents.
20.8 INSURANCE
The Borrower shall maintain insurances on and in relation to its business
and assets with reputable underwriters or insurance companies against
those risks, and to the extent, usually insured against by prudent
companies carrying on a similar business in accordance with current
industry standards.
20.9 FURTHER ASSURANCE
The Borrower shall from time to time on request by the Lender do or
procure the doing of all such acts and will execute or procure the
execution of all such documents as may reasonably be considered necessary
for giving full effect to each of the Finance Documents or securing to the
Lender the full benefits of all rights, powers and remedies conferred upon
the Lender in any of the Finance Documents.
21. EVENTS OF DEFAULT
Each of the events or circumstances set out in Clause 21 is an Event of
Default.
21.1 NON-PAYMENT
The Borrower does not pay on the due date any amount payable pursuant to a
Finance Document at the place at and in the currency in which it is
expressed to be payable unless:
(a) its failure to pay is caused by technical error; and
(b) payment is made within two Business Days of its due date.
21.2 FINANCIAL COVENANTS
(a) Any requirement of Clause 19 (Financial Covenants) is not satisfied.
-25-
(b) No Event of Default under paragraph (a) above will occur if the failure to
comply is capable of remedy and is remedied within 30 days of the Lender
giving notice to the Borrower or the Borrower becoming aware of the
failure to comply.
21.3 OTHER OBLIGATIONS
(a) The Borrower does not comply with any provision of the Finance Documents
(other than those referred to in Clause 21.1 (Non-payment) and Clause 21.2
(Financial covenants)).
(b) No Event of Default under paragraph (a) above will occur if the failure to
comply is capable of remedy and is remedied within 30 days of the Lender
giving notice to the Borrower or the Borrower becoming aware of the
failure to comply.
21.4 MISREPRESENTATION
(a) Any representation or statement made or deemed to be made by the Borrower
in the Finance Documents or any other document delivered by or on behalf
of the Borrower under or in connection with any Finance Document is or
proves to have been incorrect or misleading in any material respect when
made or deemed to be made.
(b) No Event of Default under paragraph (a) above will occur if the event or
circumstance resulting in the representation or statement being incorrect
or misleading is capable of remedy and is remedied within 30 days of the
Lender giving notice to the Borrower or the Borrower becoming aware of the
representation or statement being incorrect or misleading.
21.5 CROSS DEFAULT
(a) Any Financial Indebtedness of any member of the Group is not paid when due
nor within any applicable grace period.
(b) Any Financial Indebtedness of any member of the Group is validly declared
to be or otherwise becomes due and payable prior to its specified maturity
as a result of an event of default (however described).
(c) Any commitment for any Financial Indebtedness of any member of the Group
is validly cancelled or suspended by a creditor of any member of the Group
as a result of an event of default (however described).
(d) Any creditor of any member of the Group becomes entitled to declare any
Financial Indebtedness of any member of the Group due and payable prior to
its specified maturity as a result of an event of default (however
described).
(e) No Event of Default will occur under this Clause 21.5 if the aggregate
amount of Financial Indebtedness or commitment for Financial Indebtedness
falling within paragraphs (a) to (d) above is less than US$30,000,000 (or
its equivalent in another currency or currencies).
21.6 INSOLVENCY
(a) A member of the Group is unable or admits inability to pay its debts as
they fall due, suspends making payments on any of its debts or, by reason
of actual or anticipated
-26-
financial difficulties, commences negotiations with one or more of its
creditors with a view to rescheduling all or a material part of its
indebtedness.
(b) The value of the assets of any member of the Group is less than its
liabilities (taking into account contingent and prospective liabilities).
(c) A moratorium is declared in respect of any indebtedness of any member of
the Group. However, no Event of Default will occur under this paragraph
(c) if the aggregate amount of such payments and/or indebtedness falling
within this paragraph (c) is less than US$30,000,000 (or its equivalent in
another currency or currencies).
21.7 INSOLVENCY PROCEEDINGS
Any corporate action, legal proceedings or other procedure or step is
taken in relation to:
(a) the suspension of payments, a moratorium of any indebtedness,
winding-up, dissolution, administration or reorganisation (by way of
voluntary arrangement, scheme of arrangement or otherwise) of any
member of the Group other than a solvent liquidation or
reorganisation of any member of the Group which is not the Borrower;
(b) a composition, assignment or arrangement with any creditor of any
member of the Group in relation to any indebtedness payable to that
creditor;
(c) the appointment of a liquidator (other than in respect of a solvent
liquidation of a member of the Group which is not the Borrower),
receiver, administrator, administrative receiver, compulsory manager
or other similar officer in respect of any member of the Group or
any of its assets; or
(d) enforcement of any Security over any assets of any member of the
Group,
or any analogous procedure or step is taken in any jurisdiction Provided
that no Event of Default shall occur under this Clause 21.7 if the
aggregate amount of the indebtedness (other than under the Finance
Documents) referred to in paragraph (a) (in relation to any suspension of
payments or moratorium), paragraph (b) (which is the subject of a
composition, assignment or arrangement) and paragraph (d) (in respect of
which the relevant Security is enforced) is less than US$30,000,000 (or
its equivalent in another currency or currencies).
21.8 CREDITORS' PROCESS
Any expropriation, attachment, sequestration, distress or execution is
levied or taken out against all or a material part of the assets of the
Borrower or any of its Material Subsidiaries and is not discharged within
30 days.
21.9 NATIONALISATION
Any step is taken by any person with a view to the seizure, compulsory
acquisition, expropriation or nationalisation of all or a material part of
the assets of the Borrower or any of its Material Subsidiaries.
-27-
21.10 CESSATION OF BUSINESS
The Borrower or any of its Material Subsidiaries ceases or threatens to
cease to carry on all or a substantial part of its business.
21.11 UNLAWFULNESS
It is or becomes unlawful for the Borrower to perform any of its payment
or other material obligations under the Finance Documents.
21.12 REPUDIATION
(a) Any Finance Document ceases for any reason (or is claimed by the Borrower
not) to be the legal and valid obligations of the Borrower, binding upon
it in accordance with its terms.
(b) The Borrower repudiates a Finance Document or evidences an intention to
repudiate a Finance Document.
21.13 MATERIAL ADVERSE CHANGE
Any event or circumstance occurs which the Lender reasonably determines
might have a Material Adverse Effect.
21.14 DECLARED COMPANY
The Borrower is declared by the Ministry of Finance to be a company to
which Part IX of the Companies Act, Chapter 50 of Singapore applies.
21.15 ACCELERATION
On and at any time after the occurrence of an Event of Default which is
continuing the Lender may, by notice to the Borrower:
(a) cancel the Commitment whereupon it shall immediately be cancelled;
(b) declare that all or part of the Loans, together with accrued
interest, and all other amounts accrued or outstanding under the
Finance Documents be immediately due and payable, whereupon they
shall become immediately due and payable; and/or
(c) declare that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand by the
Lender.
22. CHANGES TO THE LENDER
22.1 ASSIGNMENTS AND TRANSFERS BY THE LENDER
Subject to this Clause 22, the Lender (the "EXISTING LENDER") may:
(a) assign any of its rights; or
(b) transfer by novation any of its rights and obligations,
to another bank or financial institution (the "NEW LENDER") at the cost
and expense of the Existing Lender and/or the New Lender and with prior
notice to but otherwise without the prior consent of the Borrower.
-28-
22.2 CONDITIONS OF ASSIGNMENT OR TRANSFER
If:
(i) the Lender assigns or transfers any of its rights or obligations
under the Finance Documents or changes its Facility Office; and
(ii) as a result of circumstances existing at the date the assignment,
transfer or change occurs, the Borrower would be obliged to make a
payment to the New Lender or the Lender acting through its new
Facility Office under Clause 12 (Tax Gross Up and Indemnities) or
Clause 13 (Increased Costs),
then the New Lender or the Lender acting through its new Facility Office
is only entitled to receive payment under those Clauses to the same extent
as the Existing Lender or the Lender acting through its previous Facility
Office would have been if the assignment, transfer or change had not
occurred.
22.3 DISCLOSURE OF INFORMATION
The Lender and any of its officers (as defined in the Banking Act, Chapter
19 of Singapore (the "BANKING ACT")) may disclose to any of its Affiliates
and any other person:
(a) to whom the Lender assigns or transfers (or may potentially assign
or transfer) all or any of its rights and obligations under this
Agreement (for the purpose of that assignment or transfer);
(b) to whom the Lender enters into (or may potentially enter into) any
sub-participation in relation to, or any other transaction under
which payments are to be made by reference to, this Agreement or the
Borrower (for the purpose of that sub-participation or such other
transaction);
(c) to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation;
(d) to whom the Lender is under a duty to disclose; or
(e) who is a person, or who belongs to a class of persons, specified in
the second column of the Third Schedule to the Banking Act,
any customer information (as defined in the Banking Act) or any other
information about the Borrower, the Group and the Finance Documents as the
Lender shall consider appropriate.
This Clause 22.3 is not, and shall not be deemed to constitute, an express
or implied agreement by the Lender with the Borrower for a higher degree
of confidentiality than that described in Section 47 of the Banking Act
and in the Third Schedule to the Banking Act.
-29-
23. CHANGES TO THE BORROWER
The Borrower may not assign any of its rights or transfer any of its
rights or obligations under the Finance Documents.
24. CONDUCT OF BUSINESS BY THE LENDER
No provision of this Agreement will:
(a) interfere with the right of the Lender to arrange its affairs (tax
or otherwise) in whatever manner it thinks fit;
(b) oblige the Lender to investigate or claim any credit, relief,
remission or repayment available to it or the extent, order and
manner of any claim; or
(c) oblige the Lender to disclose any information relating to its
affairs (tax or otherwise) or any computations in respect of Tax.
25. PAYMENT MECHANICS
25.1 PAYMENTS TO THE LENDER
(a) On each date on which the Borrower is required to make a payment under a
Finance Document, it shall make the same available to the Lender for value
on the due date at the time and in such funds specified by the Lender as
being customary at the time for settlement of transactions in the relevant
currency in the place of payment.
(b) Payment shall be made to such account in the principal financial centre of
the country of that currency with such bank as the Lender may notify to
the Borrower by not less than five Business Days' notice.
25.2 PAYMENTS BY THE LENDER
(a) On each date on which the Lender is required to make a payment under a
Finance Document, the Lender shall make the same available to the Borrower
for value on the due date at the time and in such funds specified by the
Lender as being customary at the time for settlement of transactions in
the relevant currency in the place of payment.
(b) Payment shall be made to such account in the principal financial centre of
the country of that currency with such bank as the Borrower may notify to
the Lender in the relevant Utilisation Request.
25.3 DISTRIBUTIONS TO THE BORROWER
The Lender may (with the consent of the Borrower or in accordance with
Clause 26 (Set-Off)) apply any amount payable by it to the Borrower in or
towards payment (on the date and in the currency and funds of receipt) of
any amount due from the Borrower under the Finance Documents or in or
towards purchase of any amount of any currency to be so applied.
-30-
25.4 PARTIAL PAYMENTS
(a) If the Lender receives a payment that is insufficient to discharge all the
amounts then due and payable by the Borrower under the Finance Documents,
the Lender shall apply that payment towards the obligations of the
Borrower under the Finance Documents in any order selected by the Lender.
(b) Paragraph (a) above will override any appropriation made by the Borrower.
25.5 NO SET-OFF BY THE BORROWER
All payments to be made by the Borrower under the Finance Documents shall
be calculated and be made without (and free and clear of any deduction
for) set-off or counterclaim.
25.6 BUSINESS DAYS
(a) Any payment which is due to be made on a day that is not a Business Day
shall be made on the next Business Day in the same calendar month (if
there is one) or the preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal or an
Unpaid Sum under this Agreement interest is payable on the principal or
Unpaid Sum at the rate payable on the original due date.
25.7 CURRENCY OF ACCOUNT
(a) Subject to paragraphs (b) to (e) below, US Dollars is the currency of
account and payment for any sum due from the Borrower under any Finance
Document.
(b) A repayment of an Unpaid Sum or a part of an Unpaid Sum shall be made in
the currency in which that Unpaid Sum is denominated on its due date.
(c) Each payment of interest shall be made in the currency in which the sum in
respect of which the interest is payable was denominated when that
interest accrued.
(d) Each payment in respect of costs, expenses or Taxes shall be made in the
currency in which the costs, expenses or Taxes are incurred.
(e) Any amount expressed to be payable in a currency other than US Dollars
shall be paid in that other currency.
26. SET-OFF
The Lender may, at any time after the occurrence of an Event of Default
and by giving prior notice to the Borrower set off any matured obligation
due from the Borrower under the Finance Documents (to the extent
beneficially owned by the Lender) against any matured obligation owed by
the Lender to the Borrower, regardless of the place of payment, booking
branch or currency of either obligation. If the obligations are in
different currencies, the Lender may convert either obligation at a market
rate of exchange in its usual course of business for the purpose of the
set-off.
-31-
27. NOTICES
27.1 COMMUNICATIONS IN WRITING
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be
made by fax or letter.
27.2 ADDRESSES
The address and fax number (and the department or officer, if any, for
whose attention the communication is to be made) of each Party for any
communication or document to be made or delivered under or in connection
with the Finance Documents is that identified with its name at the end of
this Agreement, or any substitute address, fax number or department or
officer as that Party may notify to the other Party by not less than five
Business Days' notice.
27.3 DELIVERY
Any communication or document made or delivered by one person to another
under or in connection with the Finance Documents will only be effective:
(a) if by way of fax, when received in legible form; or
(b) if by way of letter, when it has been left at the relevant address
or five Business Days after being deposited in the post postage
prepaid in an envelope addressed to it at that address,
and, if a particular department or officer is specified as part of its
address details provided under Clause 27.2 (Addresses), if addressed to
that department or officer.
27.4 ENGLISH LANGUAGE
(a) Any notice given under or in connection with any Finance Document must be
in English.
(b) All other documents provided under or in connection with any Finance
Document must be:
(i) in English; or
(ii) if not in English, and if so required by the Lender, accompanied by
a certified English translation and, in this case, the English
translation will prevail unless the document is a constitutional,
statutory or other official document.
28. CALCULATIONS AND CERTIFICATES
28.1 ACCOUNTS
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by the Lender are prima facie evidence of the matters to which
they relate.
-32-
28.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by the Lender of a rate or amount under
any Finance Document shall set out the basis of calculation in reasonable
detail and is, in the absence of manifest error, conclusive evidence of
the matters to which it relates.
28.3 DAY COUNT CONVENTION
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual number
of days elapsed and a year of 360 days.
29. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction will in any way be
affected or impaired.
30. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of the
Lender, any right or remedy under the Finance Documents shall operate as a
waiver, nor shall any single or partial exercise of any right or remedy
prevent any further or other exercise or the exercise of any other right
or remedy. The rights and remedies provided in this Agreement are
cumulative and not exclusive of any rights or remedies provided by law.
31. AMENDMENTS AND WAIVERS
No term of any of the Finance Documents may be amended or waived without
the prior consent of the Lender and the Borrower and any such amendment or
waiver will be binding on all Parties.
32. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were on
a single copy of the Finance Document.
33. GOVERNING LAW
This Agreement is governed by, and construed in accordance with, the laws
of Singapore.
THIS AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE BEGINNING OF THIS
AGREEMENT.
-33-
SCHEDULE 1
CONDITIONS PRECEDENT
1. BORROWER
(a) A copy of the constitutional documents of the Borrower.
(b) A copy of a resolution of the board of directors of the Borrower:
(i) approving the terms of, and the transactions contemplated by, the
Finance Documents and resolving that it execute the Finance
Documents;
(ii) authorising a specified person or persons to execute the Finance
Documents on its behalf; and
(iii) authorising a specified person or persons, on its behalf, to sign
and/or despatch all documents and notices (including, if relevant,
any Utilisation Request to be signed and/or despatched by it under
or in connection with the Finance Documents.
(c) A specimen of the signature of each person authorised by the resolution
referred to in paragraph (b) above.
(d) A certificate of the Borrower (signed by a director) confirming that
borrowing the Commitment would not cause any borrowing or similar limit
binding on the Borrower to be exceeded.
(e) A certificate of an authorised signatory of the Borrower certifying that
each copy document relating to it specified in this Schedule 1 is correct,
complete and in full force and effect as at a date no earlier than the
date of this Agreement.
2. LEGAL OPINIONS
A legal opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, legal advisers to the Lender in
Singapore, substantially in the form agreed by the Lender prior to signing
this Agreement.
3. OTHER DOCUMENTS AND EVIDENCE
(a) The Original Financial Statements.
(b) The Side Letter duly executed.
(c) Evidence that the fees, costs and expenses then due from the Borrower
pursuant to Clause 11 (Fee) and Clause 16 (Costs and Expenses) have been
paid or will be paid by the first Utilisation Date.
-34-
SCHEDULE 2
REQUESTS
PART I
UTILISATION REQUEST
From: Chartered Semiconductor Manufacturing Ltd.
To: Bank of America, National Association, Singapore Branch
Dated: [_____________________]
Dear Sirs
CHARTERED SEMICONDUCTOR MANUFACTURING LTD.
US$50,000,000 FACILITY AGREEMENT
DATED [_________] (THE "AGREEMENT")
1. We refer to the Agreement. This is a Utilisation Request. Terms defined in
the Agreement have the same meaning when used in this Utilisation Request
unless given a different meaning in this Utilisation Request.
2. We wish to borrow a Loan on the following terms:
Proposed Utilisation Date: [________________] (or, if that is not a
Business Day, the next Business Day)
Amount: [________________] or, if less, the
Available Commitment
Interest Period: [________________]
3. We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Utilisation Request.
4. The proceeds of this Loan should be credited to [account].
5. This Utilisation Request is irrevocable.
Yours faithfully
__________________________
authorised signatory for
Chartered Semiconductor Manufacturing Ltd.
-35-
PART II
SELECTION NOTICE
From: Chartered Semiconductor Manufacturing Ltd.
To: Bank of America, National Association, Singapore Branch
Dated: [___________________]
Dear Sirs
CHARTERED SEMICONDUCTOR MANUFACTURING LTD.
US$50,000,000 FACILITY AGREEMENT
DATED [_____] (THE "AGREEMENT ")
1. We refer to the Agreement. This is a Selection Notice. Terms defined in
the Agreement have the same meaning when used in this Selection Notice
unless given a different meaning in this Selection Notice.
2. We refer to the following Loan[s] with an Interest Period ending on [___]*
3. We request that the next Interest Period for the above Loan[s] is [_____].
4. This Selection Notice is irrevocable.
Yours faithfully
__________________________
authorised signatory for
Chartered Semiconductor Manufacturing Ltd.
-----------
* INSERT DETAILS OF ALL LOANS WHICH HAVE AN INTEREST PERIOD ENDING ON THE SAME
DATE.
-36-
IN WITNESS WHEREOF this Agreement has been entered into on the date stated at
the beginning.
THE BORROWER
CHARTERED SEMICONDUCTOR MANUFACTURING LTD.
Address: ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax No.: ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
By: /s/ CHIA SONG HWEE
-----------------------
CHIEF EXECUTIVE OFFICER
THE LENDER
BANK OF AMERICA, NATIONAL ASSOCIATION, SINGAPORE BRANCH
Address: ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, #▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax No.: ▇▇▇▇ ▇▇▇▇ / 6239 3266
Attention: Tan Cheng Bee / Apiradee Korsirisap
By: /s/ KOH ▇▇▇▇▇ ▇▇▇▇
-------------------------
COUNTRY EXECUTIVE OFFICER
-37-