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EXHIBIT 4.8
DATED 14TH DECEMBER, 2000
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 SECURITY TRUSTEE
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SHAREHOLDERS UNDERTAKING
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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 2
2. UNDERTAKINGS BY SHAREHOLDERS 4
3. DECLARATION OF TRUST 6
4. SUBORDINATION 6
5. AGREEMENT BY BORROWER AND SHAREHOLDERS 7
6. REPRESENTATIONS AND WARRANTIES 8
7. UNDERTAKINGS 10
8. PAYMENTS 12
9. NATURE OF RIGHTS AND OBLIGATIONS 14
10. EXPENSES 15
11. BENEFIT OF AGREEMENT 15
12. WAIVERS 17
13. COMMUNICATIONS 17
14. PARTIAL INVALIDITY 17
15. GOVERNING LAW AND JURISDICTION 17
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T H I S A G R E E M E N T is made on 14th December, 0000
X X X X X X N:-
(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, in its capacity as security
trustee for itself and the Secured Parties defined below (in such
capacity, the "Security Trustee").
W H E R E A S:-
(A) By a Credit Agreement (the "Credit Agreement") dated 28th September,
2000 made between (1) the Borrower, as borrower, (2) ABN AMRO Bank N.V.,
Singapore Branch, Citibank, N.A., Singapore, Overseas Union Bank Limited, The
Sumitomo Bank, Limited, Danske Bank A/S, Industrial And Commercial Bank Of
China, Singapore Branch, and Commerzbank Aktiengesellschaft, Singapore Branch,
as lead arrangers, (3) The Bank of Tokyo-Mitsubishi, Ltd., Singapore Branch, The
Sanwa Bank Limited, Singapore Branch, The Industrial Bank of Japan, Limited,
Singapore Branch, The Norinchukin Bank, Singapore Branch, and Credit Lyonnais,
Singapore Branch, as arrangers, (4) The HongKong and Shanghai Banking
Corporation Limited, as co-arranger, (5) Bayerische Landesbank Girozentrale,
Singapore Branch, as lead manager, (6) Westdeutsche Landesbank Girozentrale,
Singapore Branch, as manager, (7) the Guarantor Banks named therein, as
guarantor banks, (8) the Lending Banks named therein, as lending banks, (9) ABN
AMRO Bank N.V., Singapore Branch, as agent, and (10) the Security Trustee, as
security trustee, (a) the Guarantor Banks agreed to grant a S$240,000,000
guarantee facility or a US$140,000,000 term loan facility to the Borrower and
(b) the Lending Banks agreed to grant a US$680,000,000 term loan facility to the
Borrower, 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) ATI is the legal and beneficial owner of 100 per cent. of the
issued shares in the capital of Agilent Technologies World Trade, Inc. ("ATWT")
and ATWT is the legal and beneficial owner of 100 per cent. of the issued shares
in the capital of ATE and ATE is the legal and beneficial owner of 30 per cent.
of the issued shares in the capital of the Borrower.
(C) The Borrower may not make its request for the making of an Advance (as
defined in the Credit Agreement) or for the issuance of the EDB Guarantee (as
defined in the Credit Agreement) unless and until, inter alia, the Security
Trustee has received this Agreement, duly executed by the Borrower and each of
the Shareholders defined below.
(D) Each of the Shareholders (as defined below) (after giving due
consideration to the terms and conditions of the Credit Agreement and satisfying
itself that there are reasonable grounds for believing that the entry into by it
of this Agreement will benefit it) has agreed to enter into this Agreement and
give the undertakings provided in this Agreement in consideration of the
Guarantor Banks making available to
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the Borrower the guarantee and term loan 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.
I T I S A G R E E D as follows:-
1. INTERPRETATION
(A) Definitions: In this Agreement, except to the extent that the context
requires otherwise:-
"ATI Entities" means ATI and any corporation which is at least 99 per
cent. owned (whether directly or indirectly) by ATI and "ATI Entity"
means any one of them;
"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 Security Trustee and the
Secured Parties 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;
"Joint Venture Agreement" has the meaning ascribed to it in Clause
1(A) of the Credit Agreement;
"Scheduled Completion Date" means 31st December, 2001;
"Secured Parties" means all parties for the time being to the Credit
Agreement other than the Borrower (and includes their respective
successors and assigns);
"Security Trustee" includes its successors in title and assigns and
any company with which it may amalgamate and all other persons for the
time being the security trustee for itself and the Secured Parties
under this 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 Security Trustee and/or the Secured
Parties (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 (which,
for the avoidance of doubt, excludes the Phase 1 Financing Documents
(as defined in the Trust Deed));
"Shareholder Funding" means:-
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(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;
"Threshold Production Date" means the date on which the Plant achieves
a production rate of an aggregate of 9,000 wafer starts per month;
"Threshold Production Percentage" means:-
(1) in relation to CSM, 70/100; and
(2) in relation to ATE, 30/100;
"Trust Deed" means the trust deed dated 28th September, 2000 made
between (1) the Borrower and (2) the Security Trustee, being the Trust
Deed referred to in the Credit Agreement; 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 Security Trustee and the Secured Parties,
whether actually or contingently, under or in connection with, any of
the Financing Documents (which, for the avoidance of doubt, excludes
the Phase 1 Financing Documents (as defined in the Trust Deed)) 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 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
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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) (1) Shareholders Support: In consideration of the Guarantor Banks agreeing,
at the request of the Shareholders, to make available to the Borrower the
guarantee and term loan 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
Secured Parties (or any of them) acting under or in connection with the Credit
Agreement:-
(a) Equity Support: each Shareholder shall (without demand by the
Borrower, the Security Trustee or any Secured Party) severally
provide Shareholder Funding to the Borrower by not later than
31st March, 2001 an amount equal to its Equity Commitment
Percentage of S$720,000,000 (taking into account all Shareholder
Funding which have been provided by the Shareholders on or before
the date of this Agreement); and
(b) DSCR: if, on any Calculation Date, there is a breach by the
Borrower of its obligations under Clause 16(A)(15)(a) or Clause
16(A)(15)(b) of the Credit Agreement, each Shareholder shall
(without demand by the Borrower, the Security Trustee or any
Secured Party) severally provide Shareholder Funding to the
Borrower on that Calculation Date in an amount equal to its
Equity Commitment Percentage of the lower of (i) the amount (as
determined by the Security Trustee) 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 (ii) the amount of S$720,000,000 less the
aggregate amount of Shareholder Funding immediately prior to the
provision of Shareholder Funding by that Shareholder on that
Calculation Date.
(2) Completion Guarantee: In consideration of the Guarantor Banks
agreeing, at the request of CSM and ATE, to make available to the Borrower the
guarantee and term loan facility referred to in Recital (A) above and the
Lending Banks agreeing, at the request of CSM and ATE, to make available to the
Borrower the term loan facility referred to in Recital (A) above and/or the
Secured Parties (or any of them) acting under or in connection with the Credit
Agreement:-
(a) subject to sub-paragraph (b) below, (i) each of CSM and ATE
agrees to procure that the Borrower will not abandon the Project
and to procure that the Threshold Production Date is achieved by
not later than the Scheduled Completion Date and (ii) (and
without prejudice to the provisions of sub-paragraph (i) above)
each of CSM and ATE agrees to take all steps necessary to ensure
that the Threshold Production Date is achieved by not later than
the Scheduled Completion Date; and
(b) any payment obligation of each of CSM and ATE arising under
sub-paragraph (a) above shall be limited to its Threshold
Production Percentage of the total amount payable by CSM and ATE
provided always that the maximum aggregate liability of CSM and
ATE at any time under this paragraph (2) shall not exceed the
Total Indebtedness at that time.
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(B) Termination: (1) The Shareholders' obligations under
sub-Clause (A)(1)(a) above shall terminate on the date falling on the earlier of
(a) the date on which the Shareholders have provided their respective Equity
Commitment Percentages of the Shareholder Funding in an aggregate amount of
S$720,000,000 in accordance with the provisions of this Agreement and (b) the
date on which the Senior Indebtedness has been discharged in full and no amount
remains to be lent to or remains payable by the Borrower under the Financing
Documents.
(2) The Shareholders' obligations under sub-Clause (A)(1)(b) above shall
terminate on the date on which the Senior Indebtedness has been discharged in
full and no amount remains to be lent to or remains payable by the Borrower
under the Financing Documents.
(3) Each of CSM's and ATE's obligations under sub-Clause (A)(2) above
shall terminate on the date falling on the earlier of (a) the date on which the
Threshold Production Date has been reached and (b) the date on which the Senior
Indebtedness has been discharged in full and no amount remains to be lent to or
remains payable by the Borrower under the Financing Documents.
(C) Obligations Unconditional: The obligations of the Shareholders under
this Clause are unconditional and absolute, irrespective of (1) (in the case of
CSM and ATE only) any event, however fundamental, outside the control of the
Borrower, CSM or ATE or any other person preventing the Borrower from achieving
the Threshold Production Date by the Scheduled Completion Date, (2) any
winding-up of the Borrower, (3) any Event of Default or action taken by the
Security Trustee or any Secured Party 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.
(D) 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 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).
(E) Subordinated Loans: If the Shareholders' obligations under this
Clause are fulfilled by means of loans to the Borrower (whether from any of or
all the Shareholders or from some other party), each of the Borrower and the
Shareholders agrees that such loans shall:-
(1) be unsecured;
(2) not be subject to any payment of interest until after the
Discharge Date (although interest may accrue on it prior to the
Discharge Date); and
(3) be subordinated to the Senior Indebtedness in the manner set out
in this Agreement.
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3. DECLARATION OF TRUST
The Shareholders each acknowledges that the Security Trustee holds the
benefit of this Agreement as agent and trustee for the Secured Parties.
4. SUBORDINATION
(A) Subordination: The Shareholders and the Borrower hereby agree with and
undertake to the Security Trustee and each of the Secured Parties 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 Secured
Parties 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 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 Security Trustee.
(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 5 (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 Security
Trustee 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 Security Trustee an amount equal to
that discharged or purported to be discharged.
(C) Application: Any amount received by the Security Trustee from any of
the Shareholders, or any person on its behalf, under sub-Clause (A) or (B) above
shall be applied in the following manner and order:-
(1) first, in or towards payment of any costs, charges and expenses
incurred by the Security Trustee 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 Secured
Parties in proportion to their respective shares of the Senior
Indebtedness at the time of payment); and
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(3) thirdly, in payment of any surplus to that Shareholder or any
other person lawfully entitled thereto.
5. 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
Security Trustee and the Secured Parties:-
(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 Security Trustee and the Secured Parties, 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);
(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 Security
Trustee;
(3) make or enforce any claim or right against the Borrower or prove
in competition with the Security Trustee or any Secured Party 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
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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.
6. REPRESENTATIONS AND WARRANTIES
(A) By Shareholders: Each of the Shareholders severally represents and
warrants to and for the benefit of the Security Trustee and each of the Secured
Parties 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 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
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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 has occurred and is
continuing, 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 Security Trustee and each of the Secured Parties 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;
(2) Accounts: its audited accounts and consolidated accounts (if any)
as at 31st December, 1999 and for the financial year then ended
and as delivered to the Security Trustee (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 the United States of America and
consistently applied and in accordance with the laws of
Singapore and its Memorandum and Articles of Association (or
other constitutive documents);
(b) together with those notes, give a true and fair view of its
state of affairs and financial condition and operations (or,
in the case of consolidated accounts, the consolidated state
of affairs and financial condition and operations of CSM and
its subsidiaries) as at that date and for the financial year
then ended; and
(c) together with those notes and to the extent required by
accounting principles, standards and practices generally
accepted in 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;
(3) No Material Adverse Change: there has been no material adverse
change in its financial condition or operations since 31st
December, 1999 nor in the consolidated financial condition or
operations of it and its subsidiaries since that date; and
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(4) Repetition: the representation and warranty in paragraph (1) will
be correct and complied with in all respects so long as any sum
remains to be lent or remains payable under the Credit Agreement
as if repeated then by reference to the then existing
circumstances and each of the representations and warranties in
paragraphs (2) and (3) will be correct and complied with in all
material respects at all times up to the Termination Date as if
repeated then by reference to the then existing circumstances.
(C) By EDBI: EDBI further represents and warrants to and for the benefit
of the Security Trustee and each of the Secured Parties 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
Security Trustee and each of the Secured Parties that:-
(1) Shareholding: at all times up to 13th March, 2001 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;
(2) No Material Adverse Change: there has been no material adverse
change in the financial condition or operations of ATI since 13th
October, 1999; and
(3) 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 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.
7. 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 Security Trustee for distribution to the Secured Parties
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 6(A)(7) incorrect;
(b) Other Information: it will, as soon as reasonably practicable,
deliver to the Security Trustee for distribution to the Secured
Parties such other information relating to its financial
condition or business of it as the Security Trustee (or any
Secured Party through the Security Trustee) may from time to time
reasonably require (except for information of a proprietary
nature or which is reasonably regarded by it as confidential);
and
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(c) Further Assurance: it will from time to time on reasonable
request by the Security Trustee 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 Security Trustee and the Secured Parties the full
benefits of all rights, powers and remedies conferred upon the
Security Trustee and the Secured Parties 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 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 than in accordance with Clause 16(A)(12) 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.
(2) CSM further undertakes that, so long as any sum remains to be lent or
remains payable under the Credit Agreement, 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 Security Trustee enough copies
for the Secured Parties 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, so long as any sum remains to
be lent or remains payable under the Credit Agreement it will deliver to the
Security Trustee 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 Secured Parties 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 undertakes that, at all times up to 13th March, 2001
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.
(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
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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 Security
Trustee enough copies for the Secured Parties (on the basis of
one copy for each Secured Party) of the published annual report
of ATI as at the end of and for that financial year.
8. 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 Security Trustee
or, as the case may be, the Secured Party 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 Security Trustee or, as the case may be, any of the Secured Parties from
that Shareholder under this Agreement (except for a payment by the Security
Trustee or a Secured Party 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 Security Trustee or any Secured Party, shall reimburse
it on demand for the amount paid by it.
(4) Within 30 days after paying any sum from which it is 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 Security Trustee evidence
reasonably satisfactory to the Security Trustee or, as the case may be, the
relevant
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Secured Party 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 Security Trustee.
(B) Goods and Services Tax: Each of the Shareholders shall also pay to the
Security Trustee and each Secured Party 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 the Security Trustee
or any Secured Party 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 the Security
Trustee or that Secured Party in its absolute discretion is able
to identify as attributable to that Tax Payment,
then, if in its absolute discretion it can do so without any adverse
consequences for the Security Trustee or, as the case may be, that Secured
Party, the Security Trustee or, as the case may be, that Secured Party shall
reimburse that Shareholder such amount as the Security Trustee or, as the case
may be, that Secured Party in its absolute discretion determines to be such
proportion of that Tax Credit as will leave the Security Trustee or, as the case
may be, that Secured Party (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. The Security Trustee or any Secured Party
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). Neither the Security Trustee nor any Secured Party shall be obliged to
disclose any information regarding its tax affairs and computations.
(D) Currency Indemnity: (1) Any amount received or recovered by the
Security Trustee or any Secured Party 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
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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 Security Trustee, any Arranger
and/or any Secured Party 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.
9. 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 Security Trustee and/or any of the Secured Parties
in respect of the Senior Indebtedness or any part thereof or to
the Borrower, any Shareholder or any other person;
(3) any amendment or supplement to any provision of any Financing
Document or any other agreement, security, guarantee or
indemnity;
(4) the making or the absence of any demand on the Borrower, any
Shareholder or any other person for payment;
(5) the enforcement or absence of enforcement of or release of any of
the Financing Documents or any other agreement, security,
guarantee or indemnity held in respect of the Senior
Indebtedness;
(6) the winding-up, insolvency or bankruptcy 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.
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(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 Security
Trustee or any of the Secured Parties and any of the Shareholders shall be
conditional upon no security or payment to the Security Trustee or such Secured
Party 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 Security Trustee or such Secured Party (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 (1) above, 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 Security Trustee and the Secured Parties agree
otherwise, continue as if the discharge or arrangement, as the case may be, had
not occurred.
(D) Failure by Shareholder: The failure of a Shareholder or the Borrower
to perform or comply with any of its obligations under this Agreement shall not
release any other Shareholder or the Borrower of its obligations under this
Agreement.
(E) Immediate Recourse: Each Shareholder waives any right which it may
have of first requesting the Security Trustee or any of the Secured Parties 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
Security Trustee or any Secured Party as security for the obligations of the
Borrower under the Credit Agreement.
10. 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 Security Trustee and/or any of the Secured Parties 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
Security Trustee and/or any of the Secured Parties in protecting or enforcing
any rights against it under this Agreement.
11. 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
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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 an 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 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) Security Trustee/Secured Parties: (1) Each of the Security and the
Secured Parties 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 Security Trustee or any of the Secured
Parties under this Agreement.
(C) Disclosure of Information: The Security Trustee or any of the Secured
Parties 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 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 Security
Trustee or the relevant Secured Party 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 Security
Trustee or such Secured Party 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 Secured Party, circumstances exist which would oblige any
Shareholder to pay to the assignee or transferee under Clause 8(A) any sum in
excess of the sum (if any) which it would have been obliged to pay to that
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Secured Party under that Clause in the absence of that assignment or transfer,
that Shareholder shall not be obliged to pay that excess.
12. WAIVERS
No failure on the part of the Security Trustee or any of the Secured
Parties 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).
13. 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 Security Trustee
(or, in the case of the Security Trustee, by it to each other party) for the
purpose of this Agreement. The initial fax number, telex number, address and
person (if any) so designated by each party are set out against its name at the
end of this Agreement.
(B) Deemed Delivery: Any communication under this Agreement shall be
deemed to have been received (if sent by fax or telex) on the day of despatch or
(in any other case) when left at the address required by sub-Clause (A) above or
within five days after being sent by prepaid post (by airmail if to another
country) addressed to it at that address.
14. 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.
15. 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 Security Trustee and each
Secured Party, 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 Security Trustee and/or any Secured Party 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 Security Trustee and/or any Secured Party from taking Proceedings
in any other jurisdiction, whether concurrently or not.
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(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: ATE irrevocably appoints Agilent Technologies
Singapore Pte Ltd (now of 000, Xxxxxxxxx Xxxx, #00-00/00, Xxxxxxxxx Xxxxx,
Xxxxxxxxx 000000, Attention: The Regional Legal Counsellor) 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
Security Trustee, and to deliver to the Security Trustee 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 Security Trustee or any Secured Party 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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I N W I T N E S S W H E R E O F this Agreement has been
entered into on the date stated at the beginning.
The Shareholders
The Common Seal of )
CHARTERED SEMICONDUCTOR )
MANUFACTURING LTD ) affixed seal
was hereunto affixed )
in the presence of:- )
Sd. Xxx Xxxx Xxxxx Director
----------------------------------------
Sd. Xxxxx Xxx See Sin [Director]/Secretary
----------------------------------------
00, Xxxxxxxxx Xxxxxxxxxx Xxxx X,
Xxxxxx 0,
Xxxxxxxxx 000000.
Fax Number: 0000000
Attention: Legal Department
The Common Seal of )
EDB INVESTMENTS PTE LTD ) affixed seal
was hereunto affixed )
in the presence of:- )
Sd. Xxxxxx Xxx Xxxx Xxx Director
----------------------------------------
Sd. Ho Tze Xxx Xxxxxx [Director]/Secretary
----------------------------------------
000, Xxxxx Xxxxxx Xxxx,
#00-00, Xxxxxxx Xxxx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 0000000
Attention: General Manager
Signed, Sealed and Delivered )
by Sd. Xxxxxxx Xxxxxx Chavan )
--------------------------------------
for and on behalf of ) affixed seal
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AGILENT TECHNOLOGIES EUROPE B.V. )
in the presence of:- Xxxx Jaquenod )
Sd. Xxxx Jaquenod
Xxxxxxxxx 00,
0000 XX Xxxxxxxxxx - Xxxxxxx 000
0000 XX Xxxxxxxxxx
Xxx Xxxxxxxxxxx.
with copy to:-
European Legal Counsel
Agilent Technologies Europe B.V.,
Meyrin Branch,
00, xxx xx Xxxxxx,
XX-0000 Xxxxxx 0/Xxxxxxxxxxx.
Fax Number: 00 00 000 0000
Attention: The European Legal Counsel
The Borrower
The Common Seal of )
CHARTERED SILICON PARTNERS PTE LTD ) affixed seal
was hereunto affixed )
in the presence of:- )
Sd. Chia Song Hwee Director
----------------------------------------
Sd. Xxxxx Xxx See Sin [Director]/Secretary
----------------------------------------
60, Xxxxxxxx Xxxxxxxxxx Xxxx X,
Xxxxxx 0,
Xxxxxxxxx 000000.
Fax Number: 0000000
Attention: Legal Department
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The Security Trustee
Signed, Sealed and Delivered by )
Xxxxxx Xxx and Xxxx Xxxxxxx as ) Sd. Xxxxxx Xxx
attorneys for and on behalf of ) affixed seal
ABN AMRO BANK N.V., )
SINGAPORE BRANCH ) Sd. Xxxx Xxxxxxx
in the presence of:- Xxxxxxx Low )
Sd. Xxxxxxx Low
00, Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 24396
Attention: Xx Xxxxx Xxx / Xx Xxxxxxxx Xxx
