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EXHIBIT 10.3
DATED 9TH NOVEMBER, 1999
CHARTERED SILICON PARTNERS PTE LTD
AS BORROWER
AGILENT TECHNOLOGIES EUROPE B.V.
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
EDB INVESTMENTS PTE LTD
AS SHAREHOLDERS
HEWLETT-PACKARD EUROPE B.V.
AS RETIRING SHAREHOLDER
- AND -
ABN AMRO BANK N.V., SINGAPORE BRANCH
AS AGENT
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SECOND SUPPLEMENTAL
SHAREHOLDERS UNDERTAKING
(RELATING TO THE SHAREHOLDERS UNDERTAKING
DATED 1ST JULY, 1998 AS SUPPLEMENTED BY
THE FIRST SUPPLEMENTAL SHAREHOLDERS UNDERTAKING
DATED 16TH DECEMBER, 1998)
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XXXXX & XXXXXXXX,
00, XXXXXXXX XXXX, #00-00,
XXXX XXXXX,
XXXXXXXXX 000000.
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C O N T E N T S
CLAUSE HEADING PAGE
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1. INTERPRETATION 1
2. AMENDMENTS TO AND RESTATEMENT OF THE
SHAREHOLDERS UNDERTAKING 2
3. DISCHARGE 2
4. REPRESENTATIONS AND WARRANTIES 3
5. EXPENSES AND STAMP DUTY 3
6. GOVERNING LAW AND JURISDICTION 3
SCHEDULE - FORM OF AMENDED AND RESTATED
SHAREHOLDERS UNDERTAKING 5
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THIS SECOND SUPPLEMENTAL SHAREHOLDERS UNDERTAKING is made on 9th
November, 1999 BETWEEN:-
(1) CHARTERED SILICON PARTNERS PTE LTD (the "Borrower");
(2) AGILENT TECHNOLOGIES EUROPE B.V. ("ATE"), CHARTERED SEMICONDUCTOR
MANUFACTURING LTD ("CSM") and EDB INVESTMENTS PTE LTD ("EDBI");
(3) HEWLETT-PACKARD EUROPE B.V. (the "Retiring Shareholder"); and
(4) ABN AMRO BANK N.V., SINGAPORE BRANCH, as agent for and on behalf of the
Banks (in such capacity, the "Agent", which expression shall include any of
its successors in such capacity),
and amends a Shareholders Undertaking (the "Shareholders Undertaking") dated 1st
July, 1998 made between (1) the Borrower, as borrower, (2) CSM, EDBI and the
Retiring Shareholder (together, the "Existing Shareholders"), as shareholders,
and (3) the Agent, as agent, as supplemented by a first supplemental
shareholders undertaking (the "First Supplemental Undertaking") dated 16th
December, 1998 made between the parties to the Shareholders Undertaking.
WHEREAS:-
(A) Pursuant to the Shareholders Undertaking, the Existing Shareholders agreed
to undertake certain obligations in favour of the Agent and the Banks, upon the
terms and subject to the conditions of the Shareholders Undertaking.
(B) Pursuant to the First Supplemental Undertaking, the Borrower, the Existing
Shareholders, the Arrangers, the Guarantor Banks, the Lending Banks and the
Agent have agreed to amend the Shareholders Undertaking, on the terms and
subject to the conditions of the First Supplemental Undertaking.
(C) The Borrower, ATE, CSM, EDBI and the Retiring Shareholder wish to amend the
Shareholders Undertaking (as supplemented by the First Supplemental Undertaking)
to, inter alia, replace the Retiring Shareholder with ATE, and the Banks have
agreed, on the terms and subject to the conditions set out in this Supplemental
Undertaking, to amend and restate the Shareholders Undertaking (as supplemented
by the First Supplemental Undertaking) as set out in this Supplemental
Undertaking.
IT IS AGREED as follows:-
1. INTERPRETATION
(A) Definitions: In this Supplemental Undertaking, except to the extent that
the context requires otherwise:-
"Credit Agreement" means the Credit Agreement dated 12th March, 1998 made
between (1) the Borrower, as borrower, (2) the Arrangers named therein, as
arrangers, (3) the Guarantor Banks named therein, as guarantor banks, (4)
the Lending Banks named therein, as lending banks, and (5) the Agent, as
agent, as supplemented by the first supplemental agreement dated 14th
December 1998 made
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between the parties to the Credit Agreement and as further supplemented by
the Second Supplemental Agreement;
"Restated Shareholders Undertaking" means the Shareholders Undertaking as
amended and restated on the terms of Schedule 1;
"Second Supplemental Agreement" means the second supplemental agreement
dated 9th November, 1999 between the parties to the Credit Agreement, being
supplemental to the Credit Agreement as supplemented by the First
Supplemental Agreement; and
"Shareholders" means ATE, CSM and EDBI (and includes their respective
successors and permitted assignees and transferees).
(B) Construction of Certain References: All terms and references used in the
Shareholders Undertaking and which are defined or construed in the Shareholders
Undertaking but are not defined or construed in this Supplemental Undertaking
shall have the same meaning and construction in this Supplemental Undertaking.
All references in this Supplemental Undertaking to the Shareholders Undertaking
shall be to the Shareholders Undertaking as amended, supplemented or modified by
the First Supplemental Undertaking.
(C) Miscellaneous: 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 "Clauses" and "Schedule" are
to be construed as references to the clauses of, and the schedule to, this
Supplemental Undertaking.
2. AMENDMENTS TO AND RESTATEMENT OF THE SHAREHOLDERS UNDERTAKING
(A) Supplemental Undertaking: This Supplemental Undertaking is and shall be
construed as supplemental to the Shareholders Undertaking and every Clause
thereof shall continue in full force and effect and be binding on the parties
thereto save as expressly amended and supplemented by this Supplemental
Undertaking. In addition, except as expressly provided for herein, this
Supplemental Undertaking shall not affect any rights or interests of the Agent
and the Banks whatsoever existing immediately prior to the Effective Date (as
defined in the Second Supplemental Agreement).
(B) Amendment and Restatement of Shareholders Undertaking: The parties agree
that the Shareholders Undertaking shall, with effect on and from the Effective
Date, be amended and restated in the form of the Restated Shareholders
Undertaking so that the rights and obligations of the parties to this
Supplemental Undertaking under the Shareholders Undertaking shall, on and after
the Effective Date, be governed by, and construed in accordance with, the
Restated Shareholders Undertaking.
3. DISCHARGE
The parties agree that, on and from the Effective Date, the Retiring
Shareholder shall be discharged from its obligations under the Shareholders
Undertaking without prejudice to any obligations accrued before that date.
4. REPRESENTATIONS AND WARRANTIES
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Each of the Borrower and the Shareholders severally represents and warrants
to and for the benefit of each of the other parties to this Supplemental
Undertaking 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
and (b) 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
and the Restated Shareholders Undertaking, do not and will not violate
(a) any law to which it is subject, (b) any provision of its
constitutive documents or (c) 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; and
(3) this Supplemental Undertaking and the Restated Shareholders
Undertaking, constitute its valid, binding and enforceable obligations
in accordance with their respective terms.
5. EXPENSES AND STAMP DUTY
The Borrower shall pay:-
(1) on demand, all costs and expenses (including legal fees and all goods
and services, value added and other duties or taxes payable on such
costs and expenses) reasonably incurred by the Agent in connection
with the preparation, negotiation and entry into of this Supplemental
Undertaking and the Restated Shareholders Undertaking; and
(2) promptly, and in any event before any penalty becomes payable, any
stamp, goods and services, value added, documentary or similar duty or
tax payable in connection with the entry into, performance,
enforcement and admissibility in evidence of any of this Supplemental
Undertaking and the Restated Shareholders Undertaking, and shall
indemnify the Agent and the Banks against any liability with respect
to or resulting from any delay in paying or omission to pay any such
tax.
6. GOVERNING LAW AND JURISDICTION
(A) Governing Law: This Supplemental Undertaking 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
Supplemental Undertaking and that, accordingly, any legal action or proceedings
arising out of or in connection with this Supplemental Undertaking
("Proceedings") may
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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 stipulating the venue of any
Proceedings in any court referred to in this Clause and any claim that any such
Proceedings have been brought in an inconvenient forum.
(E) Service of Process: (1) ATE irrevocably appoints Agilent Technologies
Singapore Pte Ltd (now of 000X, Xxxxxxxxx Xxxx, #00-00, #00-00/00, Xxxxxxxxx
Xxxxxxxxxx X, Xxxxxxxxx 000000, Attention: Legal 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 ATE). If for any reason the process agent ceases to
be able to act as such or no longer has an address in Singapore, ATE irrevocably
agrees to appoint a substitute process agent acceptable to the Agent, and to
deliver to the Agent a copy of the new agent's acceptance of that appointment,
within 30 days. Nothing shall affect the right to serve process in any other
manner permitted by law.
(F) Consent to Enforcement, etc.: Each of the Borrower and the Shareholders
irrevocably and generally consents in respect of any Proceedings anywhere to the
giving of any relief or the issue of any process in connection with those
Proceedings including, without limitation, the making, enforcement or execution
against any assets whatsoever (irrespective of their use or intended use) of any
order or judgment which may be made or given in those Proceedings.
(G) Waiver of Immunity: Each of the Borrower and the Shareholders irrevocably
agrees that, should the Agent or any Bank take any Proceedings anywhere (whether
for an injunction, specific performance, damages or otherwise), no immunity (to
the extent that it may at any time exist, whether on the grounds of sovereignty
or otherwise) from those Proceedings, from attachment (whether in aid of
execution, before judgment or otherwise) of its assets or from execution of
judgment shall be claimed by it or on its behalf or with respect to its assets,
any such immunity being irrevocably waived. Each of the Borrower and the
Shareholders irrevocably agrees that it and its assets are, and shall be,
subject to such Proceedings, attachment or execution in respect of its
obligations under this Supplemental Undertaking.
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S C H E D U L E
FORM OF AMENDED AND RESTATED
SHAREHOLDERS UNDERTAKING
ORIGINALLY DATED 1ST JULY, 1998
AS AMENDED ON 16TH DECEMBER, 1998 BY
A FIRST SUPPLEMENTAL SHAREHOLDERS UNDERTAKING
AND ON 9TH NOVEMBER, 1999
BY A SECOND SUPPLEMENTAL SHAREHOLDERS UNDERTAKING
CHARTERED SILICON PARTNERS PTE LTD
AS BORROWER
AGILENT TECHNOLOGIES EUROPE B.V.
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
EDB INVESTMENTS PTE LTD
AS SHAREHOLDERS
- AND -
ABN AMRO BANK N.V., SINGAPORE BRANCH
AS AGENT
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AMENDED AND RESTATED
SHAREHOLDERS UNDERTAKING
WITH EFFECT FROM THE EFFECTIVE DATE
(AS DEFINED) UNDER THE SECOND SUPPLEMENTAL SHAREHOLDERS
UNDERTAKING DATED 9TH NOVEMBER, 1999
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C O N T E N T S
CLAUSE HEADING PAGE
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1. INTERPRETATION
2. UNDERTAKINGS BY SHAREHOLDERS
3. SUBORDINATION
4. AGREEMENT BY BORROWER AND SHAREHOLDERS
5. REPRESENTATIONS AND WARRANTIES
6. UNDERTAKINGS
7. PAYMENTS
8. NATURE OF RIGHTS AND OBLIGATIONS
9. EXPENSES
10. BENEFIT OF AGREEMENT
11. WAIVERS
12. COMMUNICATIONS
13. PARTIAL INVALIDITY
14. GOVERNING LAW AND JURISDICTION
APPENDIX - INFORMATION PACK
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THIS AGREEMENT is originally made on 1st July, 1998 BETWEEN:-
(1) CHARTERED SILICON PARTNERS PTE LTD (the "Borrower");
(2) AGILENT TECHNOLOGIES EUROPE B.V. ("ATE"), CHARTERED SEMICONDUCTOR
MANUFACTURING LTD ("CSM") and EDB INVESTMENTS PTE LTD ("EDBI"); and
(3) ABN AMRO BANK N.V., SINGAPORE BRANCH, as agent for and on behalf of the
Banks defined below (in such capacity, the "Agent", which expression shall
include any of its successors in such capacity).
WHEREAS:-
(A) By a Credit Agreement (the Credit Agreement as amended by the First
Supplemental Agreement (as defined below) and the Second Supplemental Agreement
(as defined below), 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) On 9th November, 1999, ATE will be 100 per cent. legally and
beneficially owned by Hewlett-Packard World Trade, Inc ("HPWT") which is in turn
100 per cent. legally and beneficially owned by Hewlett-Packard Company ("HP").
On 11th November, 1999, ATE will be 100 per cent. legally and beneficially owned
by Agilent Technologies World Trade, Inc. ("ATWT") which will be 100 per cent.
legally and beneficially owned by HPWT and pursuant to a transfer on the same
day ATWT will then be 100 per cent. owned by HP. On 15th November, 1999, ATE
will be 100 per cent. legally and beneficially owned by ATWT, which will be 100
per cent. owned by Agilent Technologies, Inc. ("ATI") which in turn will be
owned 100 per cent. legally and beneficially by HP, thereafter HP will own
between 80 to 85 per cent. of ATI and cease to own any ATI share by May 2000.
ATE is or will be the legal and beneficial owner of 30 per cent. of the issued
shares in the capital of the Borrower.
(C) Each of the Shareholders (as defined below) (after giving due consideration
to the terms and conditions of the Credit Agreement and satisfying itself that
there are reasonable grounds for believing that the entry into by it of this
Agreement will benefit it) has agreed to enter into this Agreement and give the
undertakings provided in this Agreement in consideration of the Guarantor Banks
making available to the Borrower the guarantee facility referred to in Recital
(A) above and the Lending Banks making available to the Borrower the term loan
facility referred to in Recital (A) above.
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IT IS AGREED as follows:-
1. INTERPRETATION
(A) Definitions: In this Agreement, except to the extent that the context
requires otherwise:-
"Agent" includes its successors in title and assigns and any company with
which it may amalgamate and all other persons for the time being the agent
for the Banks under this Agreement;
"ATI Entities" means ATI or any corporation which is at least 99 per cent.
owned (whether directly or indirectly) by ATI;
"Banks" means the Guarantor Banks and the Lending Banks (and includes their
respective successors and assigns);
"Completion" means the physical completion of the Plant (which shall be
evidenced by the grant of the temporary occupation permit for the Plant
pursuant to the Building Control Act, Chapter 29 of Singapore) and the
commencement of commercial production by the Plant (which shall be the date
on which the Plant achieves a production rate of an aggregate of 2,000
wafers start per month);
"Discharge Date" means the date on which the Senior Indebtedness has been
discharged in full and on which the Borrower and the Shareholders cease to
be under any liability to the Agent and the Banks under or in connection
with the Financing Documents;
"Equity Commitment Percentage" means:-
(1) in relation to CSM, 51/100;
(2) in relation to EDBI, 19/100; and
(3) in relation to ATE, 30/100;
"Excluded Transaction" means any genuine and good faith commercial
transaction entered into between the Borrower and any one or more of the
Shareholders which is not primarily financial in nature and is contemplated
under the Joint Venture Agreement;
"First Supplemental Agreement" means the first supplemental agreement dated
14th December, 1998 between the parties to the Credit Agreement, being
supplemental to the Credit Agreement;
"Information Pack" means the HP/Agilent Re-structuring Information Pack,
substantially in the form of the Appendix;
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"Joint Venture Agreement" has the meaning ascribed to it in Clause 1(A) of
the Credit Agreement;
"Scheduled Completion Date" means 31st December, 2000;
"Second Supplemental Agreement" means the second supplemental agreement
dated November, 1999 between the parties to the Credit Agreement, being
supplemental to the Credit Agreement as supplemented by the First
Supplemental Agreement;
"Senior Indebtedness" means all sums (whether principal, interest, fee or
otherwise) which are or at any time may be or become due from or owing by
the Borrower to the Agent and/or the Banks (or any of them), whether
actually or contingently, under or in connection with, or which the
Borrower has covenanted to pay or discharge under or pursuant to, any of
the Financing Documents;
"Shareholder Funding" means:-
(1) subscription moneys paid by any Shareholder for shares in the Borrower
for which that Shareholder has subscribed (and which have not been
returned to that Shareholder); or
(2) loans made by any Shareholder to the Borrower which are subordinated
to the Senior Indebtedness in accordance with this Agreement;
"Shareholders" means ATE, CSM and EDBI (and includes their respective
successors and permitted assignees and transferees);
"Subordinated Indebtedness" means all sums made or to be made available by
the Shareholders (or any of them) to the Borrower under or in connection
with this Agreement (including, without limitation, under Clause 2);
"Termination Date" means, in relation to a Shareholder, the earlier of (1)
the date on which that Shareholder has fulfilled all its obligations under
Clause 2(A) and (2) the date on which all Shareholder Funding provided by
it, if any, in accordance with this Agreement has been converted into
shares in the capital of the Borrower; 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 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
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Document as amended, modified or supplemented from time to time and any document
which amends, modifies or supplements that Financing Document.
(C) Miscellaneous: The headings in this Agreement are inserted for convenience
only and shall be ignored in construing this Agreement. Unless the context
otherwise requires, words denoting the singular number only shall include the
plural and vice versa. References to "Clauses" are to be construed as references
to the clauses of this Agreement. Any reference to a sub-Clause or a paragraph
is to a sub-Clause or paragraph of the Clause in which such reference appears.
2. UNDERTAKINGS BY SHAREHOLDERS
(A) Shareholders Support: In consideration of the Guarantor Banks agreeing, at
the request of the Shareholders, to make available to the Borrower the guarantee
facility referred to in Recital (A) above and the Lending Banks agreeing, at the
request of the Shareholders, to make available to the Borrower the term loan
facility referred to in Recital (A) above and/or the Banks (or any of them)
acting under or in connection with the Credit Agreement:-
(1) Completion Guarantee: (a) subject to sub-paragraph (c) below, (i) each
Shareholder agrees to procure that the Borrower will not abandon the
Project and to procure that Completion is achieved by not later than
the Scheduled Completion Date and (ii) each Shareholder shall
indemnify each Bank and keep each Bank indemnified against any losses,
damages, liabilities, costs and expenses (including, without
limitation, legal costs on a full indemnity basis) suffered by that
Bank if Completion is not achieved by the Scheduled Completion Date
and which would not have been suffered if Completion had been so
achieved;
(b) each Shareholder agrees to undertake such expenditures as are
required in order to ensure its compliance with the provisions of
sub-paragraph (a) above and agrees to take all steps necessary to
ensure that Completion is achieved by not later than the Scheduled
Completion Date (provided that, without prejudice to the obligations
of the Shareholders under sub-paragraph (a)(ii) above or any other
provision of this Agreement, the aggregate amount of the expenditures
by the Shareholders under sub-paragraphs (a)(i) and (b) at any time
shall not exceed the difference between S$720,000,000 and the
aggregate amount of Shareholding Funding provided by the Shareholders
immediately prior to that time); and
(c) any payment obligation of a Shareholder arising under
sub-paragraph (a) or (b) above shall be limited to that Shareholder's
Equity Commitment Percentage of the total amount payable by the
Shareholders provided always that the maximum aggregate liability of
the Shareholders at any time under sub-paragraph (a)(ii) above shall
not exceed the Total Indebtedness at that time;
(2) Equity Support: if, on 31st December, 2001, the ratio of the
Borrowings of the Borrower to its Net Worth is in excess of 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
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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
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:-
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(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:-
(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:-
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(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.
(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, xxx 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);
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(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 ATE), and has the power and authority to own its
assets and to conduct the business which it conducts and/or proposes
to conduct;
(2) Powers: it has the power to enter into, exercise its rights and
perform and comply with its obligations under this Agreement;
(3) Authorisations and Consents: all action, conditions and things
required to be taken, fulfilled and done (including the obtaining of
any necessary consents) in order (a) to enable it lawfully to enter
into, exercise its rights and perform and comply with its obligations
under this Agreement, (b) to ensure that those obligations are valid,
legally binding and enforceable, and (c) to make this Agreement
admissible in evidence in the courts of Singapore and the Netherlands
have been taken, fulfilled and done;
(4) Non-Violation of Laws: its entry into, exercise of its rights and/or
performance of or compliance with its obligations under this Agreement
do not and will not violate, or exceed any power or restriction
granted or imposed by, (a) any law to which it is subject or (b) its
Memorandum and Articles of Association;
(5) Obligations Binding: its obligations under this Agreement are valid,
binding and enforceable;
(6) Non-Violation of Other Agreements: its entry into, exercise of its
rights and/or performance of or compliance with its obligations under
this Agreement do not
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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; and
(10) Repetition: each of the above representations and warranties will be
correct and complied with in all material respects at all times up to
the Termination Date as if repeated then by reference to the then
existing circumstances.
(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
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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
(4) Repetition: the representation and warranty in paragraph (1) will be
correct and complied with in all respects so long as any sum remains
to be lent or remains payable under the Credit Agreement as if
repeated then by reference to the then existing circumstances and each
of the representations and warranties in paragraphs (2) and (3) will
be correct and complied with in all material respects at all times up
to the Termination Date as if repeated then by reference to the then
existing circumstances.
(C) By EDBI: EDBI further represents and warrants to and for the benefit of the
Agent and each of the Banks that EDBI is, on the date of this Agreement, the
legal and beneficial owner of not less than 19 per cent. of the issued share
capital of the Borrower.
(D) By ATE: ATE further represents and warrants and for the benefit of the
Agent and each of the Banks that:-
(1) Shareholding: ATE has an effective shareholding in not less than 30
per cent. of the issued share capital of the Borrower and ATI (either
directly or through any one or more of its subsidiaries in which it
owns not less than 95 per cent. of the issued share capital of that
subsidiary) has an effective shareholding in not less than 30 per
cent. of the issued share capital of the Borrower for a period of not
less than four years from the date of the Joint Venture Agreement;
(2) Information Pack: at 13th October, 1999, the information in the
Information Pack relating to, and provided by, ATI was true, complete
and accurate in all material respects;
(3) No Material Adverse Change: there has been no material adverse change
in the financial condition or operations of ATI since 13th October,
1999; and
(4) Repetition: the representation and warranty in paragraph (1) will be
correct and complied with in all respects so long as any sum remains
to be lent or remains payable under the Credit Agreement as if
repeated then by reference
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to the then existing circumstances and the representation and warranty
in paragraph (2) will be correct and complied with in all material
respects at all times up to the Termination Date as if repeated then
by reference to the then existing circumstances.
6. UNDERTAKINGS
(A) By Shareholders: (1) Each of the Shareholders severally undertakes that, at
all times prior to the Termination Date:-
(a) Litigation: it will, as soon as reasonably practicable, deliver to the
Agent for distribution to the Banks details of any litigation,
arbitration or administrative proceeding which, if to its knowledge
had been current or pending at the date of this Agreement, would have
rendered the representation and warranty in Clause 5(A)(7) incorrect;
(b) Other Information: it will, as soon as reasonably practicable, deliver
to the Agent for distribution to the Banks such other information
relating to its financial condition or business of it as the Agent (or
any Bank through the Agent) may from time to time reasonably require
(except for information of a proprietary nature or which is reasonably
regarded by it as confidential); and
(c) Further Assurance: it will from time to time on reasonable request by
the Agent acting on the instructions of the Majority Banks do or
procure the doing of all such acts and will execute or procure the
execution of all such documents as may be reasonably necessary for
giving full effect to this Agreement or securing to the Agent and the
Banks the full benefits of all rights, powers and remedies conferred
upon the Agent and the Banks in this Agreement.
(2) Each of the Shareholders severally undertakes that, so long as any sum
remains to be lent or remains payable under the Credit Agreement:-
(a) No Winding-up: it will not propose or vote in favour of any resolution
for the winding-up, liquidation or dissolution of the Borrower; and
(b) Dividends: it will exercise all voting rights attaching to the shares
in the capital of the Borrower for the time being held by it so as to
ensure that the Borrower does not declare or pay any dividend
otherwise then in accordance with Clause 16(13) of the Credit
Agreement.
(B) By CSM: (1) CSM further undertakes that, so long as any sum remains to be
lent or remains payable under the Credit Agreement, it will be (either directly
or through any one or more of its wholly-owned subsidiaries) the legal and
beneficial owner of at least 51 per cent. of the issued share capital of the
Borrower and Singapore Technologies Pte Ltd will be (either directly or through
any one or more of its wholly-owned subsidiaries) the legal and beneficial owner
of at least 51 per cent. of the issued share capital of CSM.
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(2) CSM further undertakes that, at all times prior to the Termination
Date, it will, as soon as available and in any event within 180 days after the
end of each of its financial years (beginning with the current one), deliver to
the Agent enough copies for the Banks of its audited accounts (both consolidated
and unconsolidated) as at the end of and for that financial year.
(C) By EDBI: EDBI further undertakes that, at all times prior to the
Termination Date, it will deliver to the Agent as soon as available and in any
event within 180 days after the end of each of its financial years (beginning
with the current one), enough copies for the Banks of a statement as to its
share capital and reserves as at the end of and for that financial year.
(D) By ATE: (1) ATE further undertakes that, so long as any sum remains to be
lent or remains payable under the Credit Agreement, ATI (either directly or
through one or more of its subsidiaries in which it owns not less than 95 per
cent. of the issued share capital of that subsidiary) will have an effective
shareholding in not less than 30 per cent. of the issued share capital of the
Borrower for a period of not less than four years from the date of the Joint
Venture Agreement.
(2) ATE further undertakes that, at all times prior to the Termination
Date:-
(a) Preparation of Accounts: it will ensure that all accounts of ATI
to be delivered by it under this Agreement are prepared in such
manner that they will:-
(i) include such financial statements as are required by the
laws of the United States of America and, save as stated in
the notes thereto, were prepared, audited, examined,
reported on and approved in accordance with accounting
principles and practices generally accepted in the United
States of America consistently applied and in accordance
with the laws of the United States of America and its
Memorandum and Articles of Association (or other
constitutive documents);
(ii) together with those notes, give a true and fair view of its
state of affairs and financial condition and operations
(or, in the case of consolidated accounts, the consolidated
state of affairs and financial condition and operations of
ATI and its subsidiaries) as at that date and for the
financial year then ended; and
(iii) together with those notes and to the extent required by
accounting principles, standards and practices generally
accepted in the United States of America disclose or
reserve against all liabilities (contingent or otherwise)
of the relevant person(s) as at that date and all material
unrealised or anticipated losses from any commitment
entered into by the relevant person(s) and which existed on
that date; and
(b) it will, as soon as available and in any event within 180 days
after the end of each of its financial years (beginning with the
current one), deliver, or cause to be delivered, to the Agent
enough copies for the Banks (on the basis of one copy for each
Bank) of the published annual report of ATI as at the end of and
for that financial year.
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7. PAYMENTS
(A) Taxes: (1) All sums payable by the Shareholders under this Agreement shall
be paid (1) free of any restriction or condition, (2) free and clear of and
(except to the extent required by law) without any deduction or withholding for
or on account of any tax and (3) without deduction or withholding (except to the
extent required by law) on account of any other amount, whether by way of
set-off or otherwise.
(2) If any of the Shareholders or any other person (whether or not a party
to, or on behalf of a party to, this Agreement) must at any time deduct or
withhold any tax or other amount from any sum paid or payable by, or received or
receivable from, that Shareholder under this Agreement, that Shareholder shall
pay such additional amount as is necessary to ensure that the Agent or, as the
case may be, the Bank to which that sum is due, receives on the due date and
retains (free from any liability other than tax on its own overall net income) a
net sum equal to what it would have received and so retained had no such
deduction or withholding been required or made.
(3) If any of the Shareholders or any other person (whether or not a party
to, or on behalf of a party to, this Agreement) must at any time pay any tax or
other amount on, or calculated by reference to, any sum received or receivable
by the Agent or, as the case may be, any of the Banks from that Shareholder
under this Agreement (except for a payment by the Agent or a Bank of tax on its
own overall net income), that Shareholder shall pay or procure the payment of
that tax or other amount before any interest or penalty becomes payable or, if
that tax or other amount is payable and paid by the Agent or any Bank, shall
reimburse it on demand for the amount paid by it.
(4) Within 30 days after paying any sum from which it is required by law
to make any deduction or withholding, and within 30 days after the due date of
payment of any tax or other amount which it is required by paragraph (3) above
to pay, the relevant Shareholder shall deliver to the Agent evidence reasonably
satisfactory to the Agent or, as the case may be, the relevant Bank of that
deduction, withholding or payment and (where remittance is required) of the
remittance thereof to the relevant taxing or other authority.
(5) As soon as any of the Shareholders is aware that any such deduction,
withholding or payment is required (or any change in any such requirement), that
Shareholder shall notify the Agent.
(B) Goods and Services Tax: Each of the Shareholders shall also pay to the
Agent and each Bank on demand, in addition to any amount payable by that
Shareholder under this Agreement, any goods and services, value added or other
similar tax payable in respect of that amount (and any reference in this
Agreement to that amount shall be deemed to include any such taxes payable in
addition to it).
(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,
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then, if in its absolute discretion it can do so without any adverse
consequences for that Bank, that Bank shall reimburse that Shareholder such
amount as that Bank in its absolute discretion determines to be such proportion
of that Tax Credit as will leave that Bank (after that reimbursement) in no
better or worse position in respect of its worldwide tax liabilities than it
would have been in if no Tax Payment had been required. A Bank shall have an
absolute discretion as to whether to claim any Tax Credit (and, if it does
claim, the extent, order and manner in which it does so) and whether any amount
is due from it under this sub-Clause (C) (and, if so, what amount and when). No
Bank shall be obliged to disclose any information regarding its tax affairs and
computations.
(D) Currency Indemnity: (1) Any amount received or recovered by the Agent or
any Bank in respect of any sum expressed to be due to it from any Shareholder
under or in connection with this Agreement in a currency (such currency being
referred to as the "Relevant Currency") other than the currency in which such
sum is expressed to be due under this Agreement (such currency being referred to
as the "Currency of Account") whether as a result of, or of the enforcement of,
a judgment or order of a court or tribunal of any jurisdiction, in the
winding-up of that Shareholder or otherwise, shall only constitute a discharge
to that Shareholder to the extent of the amount in the Currency of Account which
the recipient is able, in accordance with its usual practice, to purchase with
the amount of the Relevant Currency so received or recovered on the date of that
receipt or recovery (or, if it is not practicable to make that purchase on that
date, on the first date on which it is practicable to do so).
(2) If that amount in the Currency of Account is less than the amount of
the Currency of Account due to the recipient under or in connection with this
Agreement, that Shareholder shall indemnify it against any loss sustained by it
as a result. In any event, that Shareholder shall indemnify the recipient
against the cost of making any such purchase. For the purpose of this sub-Clause
(D), it will be sufficient for the recipient to demonstrate that it would have
suffered a loss had an actual exchange or purchase been made.
(3) Each of the indemnities in this sub-Clause (D) constitutes a separate
and independent obligation from the other obligations in this Agreement, shall
give rise to a separate and independent cause of action, shall apply
irrespective of any indulgence granted by the Agent, any Arranger and/or any
Bank and shall continue in full force and effect despite any judgment, order,
claim or proof for a liquidated amount in respect of any sum due under this
Agreement or any other judgment or order.
8. NATURE OF RIGHTS AND OBLIGATIONS
(A) No Release: The obligations of the Shareholders under this Agreement
(excluding, for the avoidance of doubt, any obligation of the Shareholders under
this Agreement which has been discharged) shall not be discharged, impaired or
otherwise affected by any act, omission, matter or thing which, but for this
sub-Clause (A), may operate to release or otherwise exonerate any of the
Shareholders from its obligations under this Agreement in whole or in part,
including without limitation and whether or not known to it or any other
person:-
(1) any variation in or to the Project;
(2) any time, indulgence, concession waiver or consent at any time given
by the Agent and/or any of the Banks in respect of the Senior
Indebtedness or any part thereof or to the Borrower, any Shareholder
or any other person;
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(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 xxxxx, 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
otherwise without limitation, the liability of the Shareholders under this
Agreement shall, unless the Agent and the Banks agree otherwise, continue as if
the discharge or arrangement, as the case may be, had not occurred.
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(D) Failure by Shareholder: The failure of a Shareholder or the Borrower to
perform or comply with any of its obligations under this Agreement shall not
release any other Shareholder or the Borrower of its obligations under this
Agreement.
(E) Immediate Recourse: Each Shareholder waives any right which it may have of
first requesting the Agent or any of the Banks to proceed against or enforce any
other rights or security or claim payment from the Borrower, any other
Shareholder or any other person before claiming from the Shareholder under this
Agreement.
(F) Additional Security: This Agreement shall be in addition to and shall not
in any way be prejudiced by any other security now or hereafter held by the
Agent or any Bank as security for the obligations of the Borrower under the
Credit Agreement.
9. EXPENSES
(A) By Shareholders: Each of the Shareholders shall pay on demand all costs and
expenses (including legal expenses on a full indemnity basis) reasonably
incurred by the Agent and/or any of the Banks in protecting or enforcing any
rights against it under this Agreement.
(B) By Borrower: The Borrower shall pay on demand all costs and expenses
(including legal expenses on a full indemnity basis) reasonably incurred by the
Agent and/or any of the Banks in protecting or enforcing any rights against it
under this Agreement.
10. BENEFIT OF AGREEMENT
(A) Shareholders/Borrower: The Borrower may not assign or transfer any of its
rights, benefits or obligations under this Agreement. None of the Shareholders
may assign or transfer any of their respective rights, benefits or obligations
under this Agreement other than in the following manner and upon the following
terms:-
(1) in the case of EDBI, it may transfer all of its rights, benefits and
obligations under this Agreement to any of its wholly-owned
subsidiaries which has acquired all the shares owned by EDBI in the
Borrower, provided that (a) the transferee shall have agreed in
writing to the other parties to this Agreement to assume all the
obligations of EDBI under this Agreement and (b) EDBI and the
transferee shall have undertaken to the other parties to this
Agreement to ensure that, in the event that the transferee ceases to
be a wholly-owned subsidiary of EDBI, the transferee shall transfer
all its rights, benefits and obligations under this Agreement to EDBI
or a wholly-owned subsidiary of EDBI; and
(2) in the case of ATE, it may transfer all of its rights, benefits and
obligations under this Agreement to a ATI Entity (provided that, at
the time of such transfer, ATI owns at least 95 per cent. of the
issued share capital of such ATI Entity) which has acquired all the
shares owned by ATE in the Borrower, provided that (a) such ATI Entity
shall have undertaken to the other parties to this Agreement to assume
all the obligations of ATE under this Agreement and (b) ATE and such
ATI Entity shall have undertaken to the other parties to this
Agreement to ensure that, in the event ATI ceases to own at least 95
per
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cent. of the issued share capital of such ATI Entity, such ATI Entity
shall transfer all its rights, benefits and obligations under this
Agreement to ATI, ATE or another ATI Entity (of which ATI owns at
least 95 per cent. of its issued share capital).
(B) Agent/Banks: (1) Each of the Agent and the Banks may assign all or part of
its rights under this Agreement without the consent of any party to any assignee
or transferee under the Credit Agreement (but the assignor shall give to the
Borrower prior notice of such assignment or transfer). Any such assignee shall
be entitled to the full benefit of this Agreement to the same extent as if it
were an original party in respect of the rights assigned to it.
(2) None of the Shareholders and the Borrower shall be liable for any
costs or expenses which may be incurred in connection with any assignment or
transfer of any of the rights of the Agent or any of the Banks under this
Agreement.
(C) Disclosure of Information: The Agent or any of the Banks may disclose on a
confidential basis to any other party to the Financing Documents or any of its
other branches or its headquarters or to an actual or potential New Lending
Bank, assignee, sub-participant or the like such information about the Borrower,
any Shareholder or any other person as it may think fit and may disclose to such
party such information about the Borrower or any of the Shareholders with the
prior consent in writing of the Borrower or, as the case may be, such
Shareholder (Provided that, at any time and from time to time after the making
of a declaration under Clause 17(B) of the Credit Agreement, (1) no such consent
will be required for any such disclosure and (2) the Agent or the relevant Bank
making any such disclosure shall, if practicable, consult with the Borrower or,
as the case may be, such Shareholder prior to making any such disclosure and
shall consider in good faith any request from the Borrower or, as the case may
be, such Shareholder to the Agent or such Bank not to make any such disclosure
or to delay making any such disclosure).
(D) Limitation on Certain Obligations: If, at the time of any assignment or
transfer by a Bank, circumstances exist which would oblige any Shareholder to
pay to the assignee or transfer under Clause 7(A) any sum in excess of the sum
(if any) which it would have been obliged to pay to that Bank under that Clause
in the absence of that assignment or transfer, that Shareholder shall not be
obliged to pay that excess.
11. WAIVERS
No failure on the part of the Agent or any of the Banks to exercise, and no
delay on its part in exercising, any right or remedy under this Agreement will
operate as a waiver thereof, nor will any single or partial exercise of any
right or remedy preclude any other or further exercise thereof or the exercise
of any other right or remedy. The rights and remedies provided in this Agreement
are cumulative and not exclusive of any other rights or remedies (whether
provided by law or otherwise).
12. COMMUNICATIONS
(A) Addresses: Each communication under this Agreement shall be made by fax,
telex or otherwise in writing. Each communication or document to be delivered to
any party under this Agreement shall be sent to that party at the fax number,
telex number or address, and marked for the attention of the person (if any),
from time to time designated by that party to the Agent (or, in the case of the
Agent, by it to each other party) for the purpose of this Agreement. The initial
fax
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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.
(E) Service of Process: (1) ATE irrevocably appoints Agilent Technologies
Singapore Pte Ltd (now of 000X, Xxxxxxxxx Xxxx, #00-00, #00-00/00, Xxxxxxxxx
Xxxxxxxxxx X, Xxxxxxxxx 000000, Attention: Legal 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 ATE). If for any reason the process agent ceases to
be able to act as such or no longer has an address in Singapore, ATE irrevocably
agrees to appoint a substitute process agent acceptable to the Agent, and to
deliver to the Agent a copy of the new agent's acceptance of that appointment,
within 30 days. Nothing shall affect the right to serve process in any other
manner permitted by law.
(F) Consent to Enforcement, etc.: Each of the Borrower and the Shareholders
irrevocably and generally consents in respect of any Proceedings anywhere to the
giving of any relief or the issue
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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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IN WITNESS WHEREOF this Supplemental Undertaking 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/ XXXXX XXXXX Director
-------------------------------
/s/ CHUA XX XX Secretary
-------------------------------
60, Xxxxxxxxx Xxxxxxxxxx Xxxx X,
Xxxxxx 0,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Attention: Legal Department
The Common Seal of )
EDB INVESTMENTS PTE LTD )
was hereunto affixed )
in the presence of:- )
/s/ XXXX XXXX SAN Director
--------------------------------
/s/ XXXX XXXX Secretary
--------------------------------
000, Xxxxx Xxxxxx Xxxx,
#00-00, Xxxxxxx Xxxx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Attention: General Manager
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31
Signed, Sealed and Delivered )
By /s/ R.E.J. De BOER )
---------------------------------- )
for and on behalf of )
AGILENT TECHNOLOGIES EUROPE B.V. )
in the presence of:- )
/s/ J.C.A. VAN DIEMEN
Xxxxxxxxx 00,
0000 XX XXXXXXXXXX,
Xxx Xxxxxxxxxxx.
Fax Number:
Attention: Legal Counsel
The Retiring Shareholder
Signed for and on behalf of [SIGNATURE ILLEGIBLE]
HEWLETT-PACKARD EUROPE B.V. )
in the presence of:- )
/s/ J.C.A. VAN DIEMEN
Xxxxxxxxx 00,
0000 XX XXXXXXXXXX,
Xxx Xxxxxxxxxxx.
Fax Number: (0000) 000 0000
Attention: Legal Department
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The Borrower
The Common Seal of )
CHARTERED SILICON PARTNERS PTE LTD )
was hereunto affixed )
in the presence of:- )
/s/ Chia Song Hwee Director
------------------------------------
/s/ Xxxxx Xxxxx Director
------------------------------------
00, Xxxxxxxx Xxxxxxxxxx Xxxx X,
Xxxxxx 0,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Attention: Legal Department
The Agent
Signed, Sealed and Delivered by /s/ Xxxxx Xxx )
and /s/ Goh Xxxxx Xxxxx )
as )
attorneys for and on behalf of )
ABN AMRO BANK N.V., )
SINGAPORE BRANCH )
in the presence of:- )
[Signature Illegible]
00, Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 24396
Attention: Xx Xxxxx Xxx/Xx Xxxxxxxx Xxx
