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EXHIBIT 10.24
CONFORMED COPY
DATED 12TH MARCH, 1998
CHARTERED SILICON PARTNERS PTE LTD
AS BORROWER
ABN AMRO BANK N.V., SINGAPORE BRANCH
BAYERISCHE LANDESBANK GIROZENTRALE, SINGAPORE BRANCH
CITIBANK, N.A., SINGAPORE BRANCH
OVERSEAS UNION BANK LIMITED
THE SUMITOMO BANK, LIMITED, SINGAPORE BRANCH
AS ARRANGERS
DEN DANSKE BANK AKTIESELSKAB, SINGAPORE BRANCH
AS SENIOR LEAD MANAGER
THE BANK OF TOKYO-MITSUBISHI, LTD., SINGAPORE BRANCH
AS LEAD MANAGER
THE SANWA BANK, LIMITED, SINGAPORE BRANCH
AS MANAGER
ABN AMRO BANK N.V., SINGAPORE BRANCH
BAYERISCHE LANDESBANK GIROZENTRALE, SINGAPORE BRANCH
CITIBANK, N.A., SINGAPORE BRANCH
OVERSEAS UNION BANK LIMITED
THE SUMITOMO BANK, LIMITED, SINGAPORE BRANCH
THE SANWA BANK, LIMITED, SINGAPORE BRANCH
THE BANK OF TOKYO-MITSUBISHI, LTD., SINGAPORE BRANCH
DEN DANSKE BANK AKTIESELSKAB, SINGAPORE BRANCH
AS GUARANTOR BANKS
ABN AMRO BANK N.V., SINGAPORE BRANCH
BAYERISCHE LANDESBANK GIROZENTRALE, SINGAPORE BRANCH
CITIBANK, N.A., SINGAPORE BRANCH
OVERSEAS UNION BANK LIMITED
THE SUMITOMO BANK, LIMITED, SINGAPORE BRANCH
THE BANK OF TOKYO-MITSUBISHI, LTD., SINGAPORE BRANCH
DEN DANSKE BANK AKTIESELSKAB, SINGAPORE BRANCH
AS LENDING BANKS
- AND -
ABN AMRO BANK N.V., SINGAPORE BRANCH
AS AGENT
------------------------------------------------------
CREDIT AGREEMENT
FOR
(1) A S$236,800,000 GUARANTEE FACILITY
(2) A US$143,200,000 TERM LOAN FACILITY
------------------------------------------------------
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
------ ------- ----
1. INTERPRETATION 1
2. THE FACILITIES 12
3. CONDITIONS PRECEDENT 12
4. ISSUE OF EDB GUARANTEE 13
5. INDEMNITY TO GUARANTOR BANKS 14
6. ADVANCES 17
7. REPAYMENT AND PREPAYMENT 18
8. CANCELLATION 19
9. INTEREST 19
10. FEES 20
11. TAXES 22
12. CHANGES IN CIRCUMSTANCES 23
13. PAYMENTS 28
14. REPRESENTATIONS AND WARRANTIES 30
15. INFORMATION 33
16. UNDERTAKINGS 35
17. EVENTS OF DEFAULT 39
18. DEFAULT INTEREST 45
19. INDEMNITIES 46
20. THE AGENT AND ARRANGERS 47
21. SET-OFF AND PRO RATA SHARING 51
22. EXPENSES AND STAMP DUTY 52
23. CALCULATIONS AND EVIDENCE 53
24. BENEFIT OF AGREEMENT 53
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CLAUSE HEADING PAGE
------ ------- ----
25. REMEDIES, WAIVERS, AMENDMENTS
AND CONSENTS 55
26. COMMUNICATIONS 55
27. PARTIAL INVALIDITY 56
28. NATURE OF RIGHTS AND OBLIGATIONS 56
29. GOVERNING LAW 56
SCHEDULE 1 - BANKS AND COMMITMENTS 57
SCHEDULE 2 - FORM OF TRANSFER NOTICE 59
SCHEDULE 3 - CONDITIONS PRECEDENT 61
SCHEDULE 4 - FORM OF REQUEST FOR ISSUE
OF EDB GUARANTEE 63
SCHEDULE 5 - FORM OF REQUEST FOR
ADVANCE 64
SCHEDULE 6 - FORM OF DRAWDOWN SCHEDULE 66
APPENDIX A - FORM OF EDB GUARANTEE 67
APPENDIX B - FORM OF SHAREHOLDERS
UNDERTAKING 76
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T H I S A G R E E M E N T is made on 12th March, 0000
X X X X X X N:-
(1) CHARTERED SILICON PARTNERS PTE LTD (the "Borrower");
(2) ABN AMRO BANK N.V., SINGAPORE BRANCH, BAYERISCHE LANDESBANK
GIROZENTRALE, SINGAPORE BRANCH, CITIBANK, N.A., OVERSEAS UNION
BANK LIMITED and THE SUMITOMO BANK, LIMITED, SINGAPORE BRANCH
(the "Arrangers");
(3) THE SEVERAL BANKS AND FINANCIAL INSTITUTIONS named in Part A
of Schedule 1 (the "Guarantor Banks");
(4) THE SEVERAL BANKS AND FINANCIAL INSTITUTIONS named in Part B
of Schedule 1 (the "Lending Banks"); and
(5) 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).
W H E R E A S, as a result of arrangements by the Arrangers
made at the request of the Borrower, (1) the Guarantor Banks are willing to
grant to the Borrower a S$236,800,000 guarantee facility and (2) the Lending
Banks are willing to grant to the Borrower a US$143,200,000 term loan facility,
upon the terms and subject to the conditions of this Agreement.
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:-
"Advance" means an advance made or to be made by the Lending
Banks to the Borrower under this Agreement or, as the case may
be, the outstanding principal amount of any such advance;
"Available Commitment" means, in relation to a Lending Bank,
its Term Commitment less its share of the Advances made by the
Lending Banks under this Agreement;
"Available EDB Amount" means, in relation to an Utilisation
Period, and subject as provided in this Agreement, the amount
specified against that Utilisation Period in column (2) of the
Drawdown Schedule;
"Available Facility" means the total amount of the Available
Commitments of all the Lending Banks;
"Available Term Amount" means, in relation to an Utilisation
Period, and subject as provided in this Agreement, the amount
specified against that Utilisation Period in column (3) of the
Drawdown Schedule as the aggregate amount of the Term
Commitments which is available for drawing by the Borrower
under this Agreement;
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"Banks" means the Guarantor Banks and the Lending Banks (and
includes their respective successors and assigns);
"Borrowings" means, at any particular time, but without double
counting, the aggregate outstanding principal, capital or
nominal amount of the indebtedness of the Borrower in respect
of borrowed money (whether actual, contingent or otherwise)
and, to the extent not otherwise taken into account, shall in
any event include:-
(1) any indebtedness for moneys borrowed or raised by the
Borrower;
(2) any indebtedness of the Borrower to any bank or other
financial institution under any guarantee, indemnity,
security or other commitment designed to assure any
creditor against loss in respect of any indebtedness
of any other person;
(3) any indebtedness under any acceptance credit opened
on behalf of the Borrower;
(4) the principal amount of any factored debts and
discounted receivables for which there is recourse to
the Borrower;
(5) any indebtedness under any debenture, note, xxxx of
exchange or commercial paper on which the Borrower is
liable as drawer, acceptor, endorser, issuer or
otherwise; and
(6) any amounts payable under any financial lease or
agreement entered into by the Borrower primarily for
the purposes of raising or obtaining finance whether
in respect of land, machinery, equipment or under any
hire purchase agreement or any agreement for the
conditional sale of goods or equipment on deferred
terms (excluding, for the avoidance of doubt, any
operating lease in respect of machinery or equipment
entered into by the Borrower on normal commercial
terms in the ordinary course of business),
but less any indebtedness of the Borrower to the Shareholders
or any related corporation of the Borrower which is
subordinated to the Borrower's obligations under the Financing
Documents (either pursuant to the Shareholders Undertaking or
otherwise in a manner and on terms satisfactory to the
Majority Banks);
"Business Day" means a day (other than Saturday or Sunday) on
which (1) deposits in Singapore Dollars and US Dollars may be
dealt in on the Singapore inter-bank market, (2) commercial
banks are open for business in Singapore, and (3) if on that
day a transfer of funds is to be made under this Agreement in
US Dollars, commercial banks are open for business in
Singapore and New York City;
"Calculation Dates" means each 30th June and 31st December
falling after the date of this Agreement;
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"Calculation Period" means each period of six months ending on
any date referred to in the definition of the Calculation
Dates;
"Centre" means (1) in relation to Singapore Dollar, Singapore,
and (2) in relation to US Dollar, New York City;
"Commitment Fee Payment Dates" means the last day of each
Utilisation Period;
"Commitment Termination Date" means 31st December, 1999;
"Commitments" means the Guarantee Commitments and the Term
Commitments;
"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);
"CSM" means Chartered Semiconductor Manufacturing Ltd, a
company incorporated in Singapore;
"Current Financial Report" means the then most recent
financial report delivered by the Borrower to the Agent
pursuant to Clause 15;
"Debt Service Coverage Ratio" or "DSCR" means, in relation to
any Calculation Period, the ratio of A:B where:-
"A" = the Net Available Cash for that Calculation Period as
set out in the then Current Financial Report; and
"B" = the sum of all payments of the following:-
(1) principal, interest, commitment or other fees or
commissions; and
(2) grossing-up for indemnities for taxes withheld,
deducted or paid or for indemnities for
increased funding or similar costs,
which are or will be due and payable during the
next succeeding Calculation Period in respect of
any indebtedness of the Borrower in respect of
borrowed money;
"Drawdown Schedule" means the schedule of Utilisation Periods,
Available EDB Amounts and Available Term Amounts (referred to
in paragraph 10 of Schedule 3 and to be substantially in the
form set out in Schedule 6) delivered or to be delivered by
the Borrower to the Agent prior to the date of the making of
the first request for
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an Advance;
"EDB" means the Economic Development Board, a statutory body
established under the Economic Development Board Act, Chapter
85 of Singapore;
"EDB Commitment" means the commitment of EDB to grant to the
Borrower a loan facility of S$450,000,000, upon the terms and
subject to the conditions of the EDB Loan Agreement;
"EDB Guarantee" means a guarantee from the Guarantor Banks in
favour of EDB, substantially in the form of Appendix A (and
any reference to the EDB Guarantee shall include the EDB
Guarantee as from time to time amended, modified or
supplemented and any document which amends, modifies or
supplements the EDB Guarantee);
"EDB Loan" means the Drawings (as defined in the EDB Loan
Agreement) in the aggregate principal amount not exceeding
S$450,000,000 made or to be made by EDB to the Borrower
pursuant to the EDB Loan Agreement (or, as the case may be,
the outstanding aggregate principal amount of such Drawings
(as defined in the EDB Loan Agreement));
"EDB Loan Agreement" means a loan agreement made or to be made
between (1) the Borrower and (2) EDB relating to a
S$450,000,000 loan facility granted by EDB to the Borrower
(and any reference to the EDB Loan Agreement includes the EDB
Loan Agreement as from time to time amended, modified or
supplemented and any document which amends, modifies or
supplements the EDB Loan Agreement);
"EDBI" means EDB Investments Pte Ltd, a company incorporated
in Singapore;
"Equity" means, at any time, the sum of:-
(1) the Net Worth of the Borrower; and
(2) the aggregate principal amount of any loan advanced
or lent by the Shareholders (or any of them) and is
still outstanding at that time and which is
subordinated to the Borrower's obligations under the
Financing Documents (either pursuant to the
Shareholders Undertaking or otherwise in a manner and
on terms satisfactory to the Majority Banks), in each
case as set out in the then Current Financial Report;
"Event of Default" means one of the events mentioned in Clause
17(A);
"Expiry Date" means the date specified in the EDB Guarantee as
the latest date on which any claim or demand may be made by
EDB for payment by any of the Guarantor Banks under the EDB
Guarantee (which shall not be later than 30th June, 2006);
"Final Maturity Date" means 30th June, 2002;
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"Financing Documents" means this Agreement and the
Shareholders Undertaking (and any reference to either
Financing Document includes that Financing Document as from
time to time amended, modified or supplemented and any
document which amends, modifies or supplements that Financing
Document);
"Guarantee Commitment" means, in relation to a Guarantor Bank
and subject as provided in this Agreement, the amount set
opposite its name in Part A of Schedule 1;
"Guarantee Fee Payment Dates" means (1) the date of the first
Drawing (as defined in the EDB Loan Agreement) under the EDB
Loan Agreement as certified by EDB to the Banks under the EDB
Guarantee and (2) each 1st March and 1st September thereafter
(provided that no Guarantee Fee Payment Date shall fall later
than the Expiry Date);
"Guarantee Outstanding Amount" means, at any particular time,
the sum of (1) the aggregate amount of the maximum actual
and/or contingent liability of the Guarantor Banks under or in
connection with the EDB Guarantee at that time and (2) the
amounts paid by the Guarantor Banks under or in connection
with the EDB Guarantee and not reimbursed by the Borrower to
the Guarantor Banks under this Agreement at that time;
"HP" means Hewlett Packard Company, a company incorporated in
California;
"HPE" means Hewlett Packard Europe B.V., a company
incorporated in the Netherlands;
"Information Package" means the document containing certain
information concerning the Borrower and the Shareholders dated
15th September, 1997 and the appendum thereto dated 23rd
February, 1998;
"Interest Payment Date" means the last day of an Interest
Period;
"Interest Period" means a period by reference to which
interest is calculated on an Advance or overdue sum;
"Joint Venture Agreement" means the joint venture agreement
dated 13th March, 1997 made between (1) CSM, (2) EDBI, and (3)
HPE (and any reference to the Joint Venture Agreement includes
the Joint Venture Agreement as from time to time amended,
modified or supplemented and any document which amends,
modifies or supplements the Joint Venture Agreement);
"Majority Banks" means Banks whose Outstandings together
exceed 66 2/3 per cent. of the total Outstandings (or, if
there are no Outstandings, Banks whose Commitments together
exceed 66 2/3 per cent. of the total Commitments);
"Margin" means 0.5625 per cent.;
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"Net Available Cash" means, in relation to any Calculation
Period, but without double counting, an amount equal to the
sum of:-
(1) all earnings (before payment of interest, taxation,
depreciation and amortisation) of the Borrower during
such Calculation Period from carrying out of its
business (including interest and other returns paid
on, and profits made on the disposal of, any
investments) and all other cash amounts which should
be credited to the profit and loss account of the
Borrower and which are received by the Borrower
during such Calculation Period; and
(2) all cash in hand or at bank belonging to the Borrower
which is available to the Borrower on the last day of
such Calculation Period (excluding any double
counting of cash generated from earnings before
payment of interest, taxation, depreciation and
amortisation during such Calculation Period),
all as set out in the then Current Financial Report;
"Net Worth" means, as at any particular time, the sum of:-
(1) the amount paid up or credited as paid up on the
issued share capital of the Borrower (other than any
redeemable share capital);
(2) the amount standing to the credit of the capital and
revenue reserves of the Borrower; and
(3) the aggregate outstanding amount of all indebtedness
of the Borrower to the Shareholders or any related
corporation of the Borrower which are subordinated to
the Borrower's obligations under the Financing
Documents (either pursuant to the Shareholders
Undertaking or otherwise in a manner and on terms
satisfactory to the Majority Banks),
as set out in the then Current Financial Report, but less any
amount included in the above which is attributable to:-
(a) any debit balance on the profit and loss account as
at the date (the "balance sheet date") at which the
then Current Financial Report was prepared;
(b) goodwill or other intangible assets;
(c) amounts set aside for taxation;
(d) minority interests in subsidiaries;
(e) so far as not otherwise excluded as attributable to
minority interests, the amount by which the book
value of any asset has been written up after the date
of this Agreement by way of revaluation. However, no
deduction shall be made to the
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extent that a revaluation is based on, and the
written-up value does not exceed the value shown by,
a written valuation prepared by a suitable
independent professional valuer; and
(f) any dividend or other distribution declared,
recommended or made by the Borrower out of profits
earned up to and including the balance sheet date but
not provided for in it;
"New Lending Bank" means a bank or financial institution to
which a Lending Bank seeks to transfer all or part of its
rights and/or obligations in accordance with Clause 24(C);
"Outstandings" means, in relation to a Bank at any particular
time, the sum of:-
(1) (where that Bank is a Guarantor Bank) that Bank's
share of the Guarantee Outstanding Amount at that
time; and
(2) (where that Bank is a Lending Bank) that Bank's share
of the Advances outstanding at that time (and, for
the purposes of the determination of the Majority
Banks under this Agreement at any particular time,
there shall be taken into account the Singapore
Dollar Equivalent (as determined by the Agent) of the
Advances);
"Plant" means the wafer fabrication plant constructed or to be
constructed by the Borrower as part of the Project;
"Potential Event of Default" means any event or circumstance
which, if it continued after the giving of any notice, the
expiry of any grace period, and/or (as the case may be) the
making of any determination by the Majority Banks, provided
for in Clause 17(A), would become an Event of Default;
"Project" means the construction and subsequent operation of a
wafer fabrication plant by the Borrower to be located at
Private Xxx X00000(x) xx Xxxxxxxxx Xxxxxxxxxx Xxxx X,
Xxxxxxxxx;
"Reference Banks" means the respective principal Singapore
offices of ABN AMRO Bank N.V., Bayerische Landesbank
Girozentrale, Citibank, N.A., Overseas Union Bank Limited, The
Bank of Tokyo-Mitsubishi, Ltd. and The Sumitomo Bank, Limited;
"Repayment Dates" means 31st December, 1999, 30th June, 2000,
31st December, 2000, 30th June, 2001, 31st December, 2001 and
the Final Maturity Date;
"Shareholders" means CSM, EDBI and HPE;
"Shareholders Undertaking" means an agreement between (1) the
Borrower, (2) the Shareholders and (3) the Agent,
substantially in the form of Appendix B (or in such other form
as may be approved by the Agent and the Banks);
"Singapore Business Day" means a day (other than Saturday or
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Sunday) on which commercial banks are open for business in
Singapore;
"Singapore Dollar(s)" and "S$" mean the lawful currency of
Singapore;
"Singapore Dollar Equivalent" means, on any day in relation to
an amount denominated in a currency other than Singapore
Dollars, the amount in Singapore Dollars (as determined by the
Agent) which the Agent is able to purchase with such amount in
that currency on such day at the rate certified by the Agent
to be the spot exchange rate of the Agent for the purchase in
Singapore of Singapore Dollars with that currency at or about
11 a.m. on the second Singapore Business Day before such day;
"Term Commitment" means, in relation to a Lending Bank and
subject as provided in this Agreement, the amount set opposite
its name in Part B of Schedule 1;
"Transfer Notice" means a notice substantially in the form set
out in Schedule 2;
"Unavailable EDB Amount" means, at any particular time during
an Utilisation Period, the difference between (1) the lower of
the EDB Commitment at that time and S$225,695,203 and (2) the
Available EDB Amount for that Utilisation Period;
"Unavailable Term Amount" means, at any particular time during
an Utilisation Period, the difference between the Term
Commitments at that time and the Available Term Amount for
that Utilisation Period;
"US Dollar(s)" and "US$" mean the lawful currency of the
United States of America; and
"Utilisation Periods" means each of the three month periods
(the first such period commencing on 1st July, 1998) specified
as a Utilisation Period in column (1) of the Drawdown
Schedule.
(B) Swap Rate: For the purposes of this Agreement, the "Swap Rate"
means, in relation to an Interest Period relating to an overdue sum denominated
in Singapore Dollars, the arithmetic mean (rounded up, if necessary, to the next
1/16 per cent.) of the respective Swap Rates (as quoted to the Agent) of each
Reference Bank applicable to that Interest Period. The Swap Rate of a Reference
Bank shall be the rate per annum (expressed as a percentage) determined by that
Reference Bank, and quoted by that Reference Bank to the Agent, to be equal to Y
(which shall be calculated to the nearest four decimal places) calculated in
accordance with the following formula:-
(R x 365) + (F x 36500) + (F x R x 365)
--- - ----- - ---
Y = 000 X X X 000
where:-
F = the premium (being a positive number) or
the discount
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(being a negative number), as the case may
be, which would have been paid or received
(as the case may be) by that Reference Bank
in offering to sell US Dollars forward in
exchange for Singapore Dollars on the last
day of that Interest Period relating to such
overdue sum in the Singapore inter-bank
market at or about 11 a.m. on the second
Business Day before the first day of that
Interest Period relating to such overdue
sum;
S = the exchange rate at which that Reference
Bank sells US Dollars spot in exchange for
Singapore Dollars in the Singapore foreign
exchange market, as quoted by that Reference
Bank at or about 11 a.m. on the second
Business Day before the first day of that
Interest Period relating to such overdue
sum;
R = the rate at which that Reference Bank is
offering US Dollar deposits for that
Interest Period relating to such overdue sum
in an amount comparable to the US Dollar
equivalent of such overdue sum (such US
Dollar equivalent to be determined by that
Reference Bank at such rate or rates as that
Reference Bank determines to be most
appropriate) to prime banks in the Singapore
inter-bank market at or about 11 a.m. on the
second Business Day before the first day of
that Interest Period relating to such
overdue sum; and
N = the actual number of days in that Interest
Period relating to such overdue sum.
(C) Construction of Certain References: Except to the extent that
the context requires otherwise, any reference in this Agreement to:-
an "Act of Parliament" or any Section of, Schedule to or other
provision of an Act of Parliament shall be construed, at any
particular time, as including a reference to any modification,
extension or re-enactment thereof then in force and all
instruments, orders and regulations then in force and made
under or deriving validity from the relevant Act or provision;
an "agency" of a state includes any agency, authority, central
bank, department, government, legislature, minister, ministry,
official or public or statutory person (whether autonomous or
not) of, or of the government of, that state;
the "assets" of any person means all or any part of its
business, undertaking, property, assets, revenues (including
any right to receive revenues) and uncalled capital;
"borrowed money" includes any indebtedness for or in respect
of money borrowed or raised (whether or not for cash), by
whatever means (including acceptances, with recourse
discounting and factoring, finance leases, hire-purchase,
sale-and-leaseback, sale-and-repurchase and any form of
"off-balance sheet" financing
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but shall, for the avoidance of doubt, exclude operating
leases and credit sales on normal commercial terms in the
ordinary course of trading);
"consent" also includes an approval, authorisation, exemption,
filing, licence, order, permission, recording or registration
(and references to obtaining consents shall be construed
accordingly);
a "directive" includes any present or future directive,
regulation, request, requirement, rule or credit restraint
programme of any agency of any state or of any self-regulating
organisation (but, if not having the force of law, only if
compliance with the directive is in accordance with the
general practice of persons to whom the directive is intended
to apply);
"disposal" includes any sale, assignment, exchange, transfer,
concession, loan, lease, surrender of lease, licence,
reservation, waiver, compromise, release of security, dealing
with or the granting of any option or right or interest
whatsoever or any agreement for any of the same and "dispose"
means to make a disposal, and "acquisition" and "acquire"
shall be construed mutatis mutandis;
a "guarantee" also includes an indemnity, and any other
obligation (whatever called) of any person to pay, purchase,
provide funds (whether by the advance of money, the purchase
of or subscription for shares or other securities, the
purchase of assets or services, or otherwise) for the payment
of, indemnify against the consequences of default in the
payment of, or otherwise be responsible for, any indebtedness
of any other person (and "guaranteed" and "guarantor" shall be
construed accordingly);
"identified form" in relation to any document means a form of
such document initialled by the Borrower and the Agent for the
purposes of identification on the date of this Agreement;
"indebtedness" includes any obligation (whether present or
future, actual or contingent, secured or unsecured, as
principal, surety or otherwise) for the payment or repayment
of money;
a "law" includes common or customary law and any constitution,
decree, judgment, legislation, order, ordinance, regulation,
statute, treaty or other legislative measure, in each case of
any jurisdiction whatsoever (and "lawful" and "unlawful" shall
be construed accordingly);
something having a "material adverse effect" on:-
(1) the Borrower is to it having a material adverse
effect (a) on its financial condition, or (b) on its
ability to perform and comply with its obligations
under any Financing Document; or
(2) any of the Shareholders is to it having a material
adverse
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effect (a) on its financial condition or (b) on its
ability to perform and comply with its obligations
under the Shareholders Undertaking or any other
Financing Document;
a "month" means a period beginning in one calendar month and
ending in the next calendar month on the day numerically
corresponding to the day of the calendar month on which it
commences or, where there is no date in the next calendar
month numerically corresponding as aforesaid, the last day of
such calendar month, and "months" and "monthly" shall be
construed accordingly;
any "obligation" of any person under this Agreement or any
other agreement or document shall be construed as a reference
to an obligation expressed to be assumed by or imposed on it
under this Agreement or, as the case may be, that other
agreement or document (and "due", "owing", "payable" and
"receivable" shall be similarly construed);
a "person" includes any individual, company, corporation,
firm, partnership, joint venture, association, organisation,
trust, state or agency of a state (in each case, whether or
not having separate legal personality);
"related corporations" has the meaning ascribed to it in
Section 6 of the Companies Act, Chapter 50 of Singapore;
"security" includes any mortgage, pledge, lien, hypothecation,
security interest or other charge or encumbrance and any other
agreement or arrangement having substantially the same
economic effect (including any "hold-back" or "flawed asset"
arrangement) (and "secured" shall be construed accordingly);
"subsidiary" has the meaning ascribed to it in Section 5 of
the Companies Act, Chapter 50 of Singapore;
"tax(es)" includes any present or future tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature and
whatever called, by whomsoever, on whomsoever and wherever
imposed, levied, collected, withheld or assessed;
"tax on overall net income" of a person shall be construed as
a reference to tax (other than tax deducted or withheld from
any payment) imposed on that person by the jurisdiction in
which its principal office is located on (1) the net income,
profits or gains of that person worldwide or (2) such of its
net income, profits or gains as arise in or relate to that
jurisdiction;
a "time of the day" is to Singapore time unless otherwise
stated; and
the "winding-up" of a person also includes the amalgamation,
reconstruction, reorganisation, administration, judicial
management, dissolution, liquidation, merger or consolidation
of that person, and any equivalent or analogous procedure
under the law of any jurisdiction in which that person is
incorporated,
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domiciled or resident or carries on business or has assets.
(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 (including words defined herein) denoting the
singular number only shall include the plural and vice versa. The words
"written" and "in writing" include any means of visible reproduction. References
to "Appendices", "Clauses" and "Schedules" are to be construed as references to
the appendices to, clauses of, and schedules to, 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. THE FACILITIES
(A) Guarantee Facility: (1) The Guarantor Xxxxx xxxxx to the
Borrower a S$236,800,000 guarantee facility upon the terms and subject to the
conditions of this Agreement.
(2) The Guarantor Banks will participate in the EDB Guarantee to
be issued under that facility in the manner specified in Clause 4.
(B) Term Loan Facility: (1) The Lending Xxxxx xxxxx to the
Borrower a US$143,200,000 term loan facility upon the terms and subject to the
conditions of this Agreement.
(2) The Lending Banks will participate in the Advances to be made
under that facility in the manner specified in Clause 6.
(C) Purpose: The Borrower shall use the entire proceeds of each
Advance and the EDB Loan to finance the construction and operation of the Plant
and/or the purchase of equipment for wafer fabrication of semiconductor devices
in relation to the Plant, but none of the Arrangers, the Agent nor any Bank need
check that it does so.
3. CONDITIONS PRECEDENT
The Borrower may not make its request for the issue of the EDB
Guarantee and may not make its first request for an Advance until the Agent has
confirmed to it and the Banks that the Agent has received documents appearing to
the Agent to comply with the requirements of Schedule 3 and to be satisfactory,
which confirmation shall be given as soon as practicable following receipt of
all such documents.
4. ISSUE OF EDB GUARANTEE
(A) Issue Conditions: Subject to the provisions of this Agreement, the EDB
Guarantee will be issued by the Guarantor Banks at the request of the Borrower
if the following additional conditions are fulfilled:-
(1) not later than 10 a.m. on the tenth Singapore
Business Day before the proposed date of the issue of
the EDB Guarantee (or, as the case may be, such later
time as may be acceptable to the Agent and the
Guarantor Banks for the purpose of the request), the
Agent has received from the Borrower:-
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(a) a notice substantially in the form set out
in Schedule 4 specifying:-
(i) the proposed date of the issue of
the EDB Guarantee, which must be a
Singapore Business Day falling on or
before 30th June, 2000;
(ii) the maximum amount of the Guarantee
Outstanding Amount, which must be
equal to or less than the total
amount of the Guarantee Commitments
of all the Guarantor Banks; and
(iii) the proposed date for the expiry of
the EDB Guarantee, which must not be
later than 30th June, 2006; and
(b) a certified copy of the EDB Loan Agreement
(which shall be substantially in the
identified form);
(2) all representations and warranties in Clause 14
(except to any extent waived in accordance with
Clause 25(B)) have been complied with and would be
correct in all material respects if repeated on the
proposed date of the issue of the EDB Guarantee by
reference to the circumstances then existing;
(3) no Event of Default or Potential Event of Default has
occurred on or before the proposed date of the issue
of the EDB Guarantee or will occur as a result of the
issue of the EDB Guarantee, other than any waived in
accordance with Clause 25(B); and
(4) not later than 10 a.m. on the proposed date of the
issue of the EDB Guarantee, the Agent has received
and found satisfactory such additional information,
legal opinions and/or other documents relevant in the
context of or relating to the Financing Documents as
it may reasonably request not later than 10 a.m. on
the second Business Day before the proposed date of
the issue of the EDB Guarantee as a result of
circumstances which have arisen or come to its
attention since the date of this Agreement.
(B) Notification of Issue Request: The Agent shall promptly notify
each Guarantor Bank of the proposed date of the issue of the EDB Guarantee.
(C) Issue of EDB Guarantee: The EDB Guarantee shall be
substantially in the form of Appendix A with such amendments as shall have been
agreed between the Borrower, the Guarantor Banks and EDB and shall be completed
with the particulars specified in the request of the Borrower referred to in
sub-Clause (A). Subject to this sub-Clause (C), on or prior to the proposed date
of the issue of the EDB Guarantee, each Guarantor Bank shall execute the EDB
Guarantee (or a counterpart of the EDB Guarantee) and shall deliver the executed
document to the Agent for onward transmission to EDB.
(D) Obligations Several: No Guarantor Bank shall be liable for
the failure of any other Guarantor Bank to fulfil its obligations under, or in
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respect of, the EDB Guarantee and the Borrower shall not be released from its
obligations towards the other Guarantor Banks in case of such failure.
5. INDEMNITY TO GUARANTOR BANKS
(A) Indemnity: In consideration of the Guarantor Banks agreeing
to issue the EDB Guarantee at the request of the Borrower or otherwise acting
under or in connection with this Agreement:-
(1) the Borrower hereby unconditionally and irrevocably
undertakes to and agrees with each of the Guarantor
Banks that it will at all times fully indemnify and
save harmless each of the Guarantor Banks from and
against any and all actions, proceedings,
liabilities, claims, demands, losses, damages,
charges, costs and expenses of whatever nature which
the Guarantor Banks or any of them may at any time
and from time to time directly or indirectly sustain,
incur or suffer (a) by reason of any claim or demand
made under the EDB Guarantee or its payment of any
claim or liability under or in connection with the
EDB Guarantee or otherwise in connection with or
arising out of the EDB Guarantee, (b) by reason of
this Agreement, (c) as a result of any default by the
Borrower in the due and punctual payment of any sum
payable by it under or in connection with this
Agreement or the EDB Loan Agreement and/or (d) as a
result of any default by the Borrower in the due and
punctual performance of any of its other obligations
under this Agreement or the EDB Loan Agreement
(excluding, for the avoidance of doubt, any actions,
proceedings, liabilities, claims, demands, losses,
damages, charges, costs and expenses incurred by any
of the Guarantor Banks by reason of its negligence or
wilful misconduct or those of its officers, employees
or agents);
(2) without prejudice to the generality of the provisions
of paragraph (1), the Borrower covenants and
undertakes to pay to each of the Guarantor Banks by
way of indemnity at any time and from time to time
immediately upon demand by the Agent or that
Guarantor Bank all moneys and liabilities whatsoever
which may from time to time be claimed or demanded
from that Guarantor Bank or which that Guarantor Bank
may pay or is liable to pay or sustain, incur or
suffer under or by reason of or in connection with
the EDB Guarantee (excluding, for the avoidance of
doubt, any moneys or liabilities sustained, incurred
or suffered by any of the Guarantor Banks by reason
of its negligence or wilful misconduct or those of
its officers, employees or agents). The Borrower
shall make payment to the Agent or that Guarantor
Bank following such claim or demand notwithstanding
that at the time of the claim or demand that
Guarantor Bank is not liable under or required by law
to make any payment under or in connection with the
EDB Guarantee and notwithstanding any other fact or
circumstance which may constitute a defence or
discharge to that Guarantor Bank in respect of the
claim or demand made against it under or in
connection with the EDB Guarantee; and
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(3) the Borrower further agrees to pay to each of the
Guarantor Banks on demand interest on all sums
demanded by the Agent or that Guarantor Bank from it
pursuant to the provisions of this sub-Clause (A)
from and including the relevant due date of demand
for payment of the same until the date of actual
payment (both before and after judgment), part of a
day being treated as a complete day. Interest payable
pursuant to the provisions of this paragraph (3)
shall be calculated and paid at the rate per annum
(as determined by the Agent) equal to the sum of
0.625 per cent. and the cost to that Guarantor Bank
of funding such sums for such period or periods as
that Guarantor Bank may determine by whatever means
it reasonably determines to be most appropriate
(including the cost to that Guarantor Bank occasioned
by or attributable to complying with reserves,
liquidity, deposit or other requirements for the time
being imposed on it by the relevant authority or
authorities). Such interest shall accrue from day to
day and shall be calculated on the basis of a year of
365 days and the actual number of days elapsed. In
this paragraph (3), the expression "due date of
demand for payment" means the date on which that
Guarantor Bank has made a payment under or in
connection with the EDB Guarantee in respect of which
that Guarantor Bank's right to indemnity arises under
this sub-Clause (A) (whether or not a demand for
indemnity under this sub-Clause (A) was actually made
by that Guarantor Bank on that day).
(B) Further Authority: The Guarantor Banks may at all times
immediately pay, discharge and satisfy upon demand by EDB any amounts claimed by
EDB under or in connection with the EDB Guarantee without any reference or
further authority from the Borrower, without further investigation or inquiry
and without inquiring and without requiring proof or the agreement of the
Borrower that the amounts so demanded are due and notwithstanding that the
Borrower disputes the validity of any such demands or payments (whether or not
such dispute is disclosed to any of the Guarantor Banks). The Guarantor Banks
need not concern themselves with the propriety of any claim or demand made or
purported to be made under or in connection with the EDB Guarantee and it shall
not be a defence to any demand made of the Borrower, nor shall the liability of
the Borrower under this Clause be affected or impaired by the fact, that any of
the Guarantor Banks was or might have been justified in refusing payment in
whole or in part of the amounts so demanded.
(C) Good Faith: The Borrower further agrees that any action or
step taken by any of the Guarantor Banks in good faith under or in connection
with this Agreement shall be binding on it and shall not place that Guarantor
Bank under any liability to it.
(D) Obligations Continuing: The obligations of the Borrower under
this Clause are and will remain in full force and effect by way of continuing
security until no sum remains payable by the Borrower under this Agreement or by
any of the Guarantor Banks under the EDB Guarantee and the Guarantee Commitments
cease to remain in effect. Furthermore, those obligations are
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additional to, and not instead of, any other agreement, security, indemnity,
guarantee, right, remedy or lien at any time existing in favour of any person,
whether from the Borrower or otherwise.
(E) No Discharge: The Borrower shall not be discharged, nor shall
its liability under this Clause or any other provision of this Agreement be
affected, by any matter or thing whatsoever (including, without limitation, (1)
any time, indulgence, waiver, forbearance, concession or consent at any time
given to any of the Guarantor Banks, the Borrower, any Shareholder or any other
person, (2) any amendment or supplement to any provision of the EDB Guarantee,
this Agreement or any other agreement, security, indemnity, guarantee, right,
remedy or lien, (3) the making or absence of any demand on the Borrower, any
Shareholder or any other person for payment, (4) the enforcement or absence of
enforcement of the EDB Guarantee, this Agreement or any other agreement,
security, indemnity, guarantee, right, remedy or lien, (5) the taking, existence
or release of any agreement, security, indemnity, guarantee, right, remedy or
lien, (6) the insolvency, winding-up, amalgamation, reconstruction or
reorganisation of the Borrower, any Shareholder or any other person (or the
commencement of any of the foregoing) and (7) the illegality, invalidity or
unenforceability of, or any defect in, any provision of the EDB Guarantee, this
Agreement or any other agreement, security, indemnity, guarantee, right, remedy
or lien or of any obligations of the Borrower under this Agreement or any other
agreement, security, indemnity, guarantee, right, remedy or lien).
(F) Non-Amendment of EDB Guarantee: Each of the Guarantor Banks
agree with the Borrower that (without prejudice to the obligations of the
Borrower under or in connection with this Agreement), they will not amend or
agree to any amendment of the EDB Guarantee without the prior consent in writing
of the Borrower. Notwithstanding the foregoing provisions of this sub-Clause
(F), nothing in this sub-Clause (F) shall affect or prejudice the obligations of
the Borrower under or in connection with this Agreement or release the Borrower
from any of its obligations under or in connection with this Agreement
(notwithstanding any amendment made to the EDB Guarantee without the prior
consent in writing of the Borrower).
6. ADVANCES
(A) Advances: Subject to the provisions of this Agreement,
Advances will be made by the Lending Banks to the Borrower at its request if the
following additional conditions are fulfilled:-
(1) not later than 10 a.m. on the fifth Singapore
Business Day before the proposed date of the relevant
Advance (or, as the case may be, such later time as
may be acceptable to the Agent and the Lending Banks
for the purpose of the relevant request), the Agent
has received from the Borrower a notice substantially
in the form set out in Schedule 5 specifying:-
(a) the proposed date of that Advance, which
must be a Business Day falling on or before
the Commitment Termination Date;
(b) the amount of that Advance, which must be
equal to or less than the Available Term
Amount of the Utilisation Period during
which the proposed date of that Advance
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falls and, if less than that Available Term
Amount, must be US$5,000,000 or a higher
integral multiple of US$1,000,000; and
(c) details of the bank (which must be in New
York City) and account to which the Borrower
wishes the proceeds of that Advance to be
made available by the Agent;
(2) none of the events mentioned in Clause 12(C) occurs
in relation to the first Interest Period for that
Advance;
(3) all representations and warranties in Clause 14
(except to any extent waived in accordance with
Clause 25(B)) have been complied with and would be
correct in all material respects if repeated on the
proposed date of that Advance by reference to the
circumstances then existing;
(4) no Event of Default or Potential Event of Default has
occurred on or before the proposed date of that
Advance, or will occur as a result of making that
Advance, other than any waived in accordance with
Clause 25(B); and
(5) not later than 10 a.m. on the proposed date of that
Advance, the Agent has received and found
satisfactory such additional information, legal
opinions and/or other documents relevant in the
context of or relating to the Financing Documents as
it may reasonably request not later than 10 a.m. on
the second Business Day before the proposed date of
that Advance as a result of circumstances which have
arisen or come to its attention since the date of
this Agreement.
(B) Notification of Drawdown Requests: The Agent shall promptly
(and in any event by 5 p.m. on the fourth Business Day before the proposed date
of each Advance) notify each Lending Bank of the proposed date of, and the
amount of that Lending Bank's share of, each Advance.
(C) Participation in Advances: Each Lending Bank will participate
in each Advance to be made to the Borrower under this Agreement in the
proportion borne by its Available Commitment to the Available Facility when the
Agent receives the notice requesting that Advance (unless, between then and the
time for making that Advance, its Available Commitment is reduced to zero, in
which case the amount of that Advance will be reduced accordingly).
7. REPAYMENT AND PREPAYMENT
(A) Repayment: Subject as otherwise provided in this Agreement,
the Advances outstanding at the end of the Commitment Termination Date shall be
repaid by the Borrower in six equal semi-annual instalments, one instalment
falling due on each Repayment Date. For the avoidance of doubt, the Borrower
shall repay any outstanding Advances in full on the Final Maturity Date.
(B) Prepayment of All Lending Banks: The Borrower may prepay any
Advance, or any part of it which is US$5,000,000 or a higher integral multiple
of US$1,000,000 thereof without premium or penalty on any Interest Payment Date
relating to that Advance after the Commitment Termination Date if it gives to
the Agent not less than ten days' notice of the Advance to be prepaid and the
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date and amount of the prepayment. Any such prepayment must be accompanied by
accrued interest on the amount prepaid and by any other sum then due under this
Agreement.
(C) Of Certain Lending Banks: If (1) the Borrower becomes obliged
to pay any tax or other amount for the account of any Lending Bank under Clause
11(B) or 12(B) or the Agent gives a notification on behalf of any Lending Bank
under Clause 12(D), and (2) the Borrower gives to that Lending Bank not less
than ten days' notice of the date of prepayment, the Borrower may prepay all
(but not part only) of that Lending Bank's share of the Advances without premium
or penalty at any time. Upon the Agent receiving that notice, that Lending
Bank's Commitment (if any) shall be cancelled. Any such prepayment must be
accompanied by accrued interest on that Lending Bank's share of the Advances and
by any other sum then due to that Lending Bank under Clause 19(A) or any other
provision of this Agreement.
(D) Effect of Prepayments: Any prepayment under sub-Clause (B)
will be applied in or towards repaying the remaining repayment instalments of
the Advances under sub-Clause (A) in inverse order of maturity.
(E) Miscellaneous: Any notice of prepayment given by the Borrower
under this Agreement will oblige the Borrower to prepay in accordance with that
notice. The Borrower may not repay or prepay all or any part of the Advances
except as expressly provided in this Agreement and may not re-borrow any amount
repaid or prepaid.
8. CANCELLATION
(A) Of All Lending Banks: The Borrower may cancel the Available
Facility, or any part of it which is US$5,000,000 or a higher integral multiple
of US$1,000,000, at any time before the Commitment Termination Date by giving to
the Agent not less than ten days' notice of the date and amount of the
cancellation. Any such partial cancellation shall reduce each Lending Bank's
Term Commitment rateably. On the date on which the cancellation takes effect,
the Borrower shall pay to the Agent for the account of the Lending Banks a
cancellation fee of 0.0625 per cent. of the amount of that cancellation.
(B) Of Certain Lending Banks: If the Borrower becomes obliged to
pay any tax or other amount for the account of any Lending Bank under Clause
11(B) or 12(B) or the Agent gives a notification on behalf of any Lending Bank
under Clause 12(D), the Borrower may cancel all (but not part only) of that
Lending Bank's Term Commitment without premium or penalty at any time before the
Commitment Termination Date by giving to that Lending Bank not less than ten
days' notice of the date of the cancellation.
(C) Cancellation Rights Limited: The Borrower may not cancel all
or any part of the Term Commitments except as expressly provided in this
Agreement and any amount cancelled shall not be reinstated.
9. INTEREST
(A) Interest Periods: Interest shall be calculated on each Advance
by reference to successive Interest Periods. Each Interest Period shall apply to
all Advances made or outstanding on the first day of that Interest Period and
shall be of six months' duration, except as follows:-
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(1) the first Interest Period relating to any Advance
shall begin on the proposed date of that Advance and
shall end (in the case of the first Advance) on the
date falling six months thereafter and (in the case
of any subsequent Advance) on the same date as the
then current Interest Period relating to the first
Advance; and
(2) any Interest Period which commences before 30th June
in each year shall instead end on 30th June of that
year and any Interest Period which commences before
31st December (but after 30th June) in each year
shall instead end on 31st December of that year.
(B) Normal Interest Rate: The rate of interest applicable to an
Advance for all or any part of a particular Interest Period relating to that
Advance shall be the rate per annum (as determined by the Agent) equal to the
sum of the Margin and the arithmetic mean (rounded up, if necessary, to the next
1/16 per cent.) of the respective rates (as quoted to the Agent) at which each
Reference Bank is offering deposits in US Dollars for that Interest Period in an
amount comparable to the Advance to which that Interest Period relates to prime
banks in the Singapore inter-bank market at or about 11 a.m. on the second
Business Day before the first day of that Interest Period. If any Reference Bank
does not supply any quotation required from it for the purpose of this
Agreement, the relevant arithmetic mean (rounded up, if necessary, to the next
1/16 per cent.) shall be determined on the basis of the quotations supplied by
the remaining Reference Banks.
(C) Notification of Interest Periods and Rates: The Agent shall
promptly notify the Borrower and the Lending Banks of each rate of interest
determined in accordance with sub-Clause (B).
(D) Payment of Interest: Subject as otherwise provided in this
Agreement, on the last day of each Interest Period relating to an Advance, the
Borrower shall pay the unpaid interest accrued during that Interest Period on
that Advance at the rate applicable to that Interest Period.
10. FEES
(A) Guarantee Fee: The Borrower shall pay to the Guarantor Banks:-
(1) on each Guarantee Fee Payment Date a guarantee fee
calculated at the rate of 0.625 per cent. per annum
on the lower of (a) the aggregate amounts of
principal, interest and default interest, if any,
outstanding under the EDB Loan Agreement on that
Guarantee Fee Payment Date and (b) the Maximum
Aggregate Liability (as defined in the EDB Guarantee)
on that Guarantee Fee Payment Date and for the period
commencing on that Guarantee Fee Payment Date and
ending on the next Guarantee Fee Payment Date or, if
earlier, the Expiry Date (such guarantee fee to be
calculated on the basis of a 365 day year); and
(2) on each date (other than a Guarantee Fee Payment
Date) on which the principal amount of the EDB Loan
is increased (each an "Increase Date"), a guarantee
fee calculated at the rate
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of 0.625 per cent. per annum on the amount by which
the EDB Loan has increased on that Increase Date (but
not including that part of the EDB Loan exceeding
S$225,695,203) and for the period commencing on that
Increase Date and ending on the next Guarantee Fee
Payment Date or, if earlier, the Expiry Date (such
guarantee fee to be calculated on the basis of a 365
day year).
The guarantee fee shall be payable in Singapore Dollars and shall be
non-refundable notwithstanding any reduction of the EDB Loan or Guarantee
Outstanding Amount after the relevant Guarantee Fee Payment Date or, as the case
may be, Increase Date or any reduction or cancellation of the Guarantee
Commitments after the relevant Guarantee Fee Payment Date or, as the case may
be, Increase Date.
(B) Commitment Fee: (1) (a) The Borrower shall pay to the
Guarantor Banks on each Commitment Fee Payment Date a commitment fee (which
shall be payable in Singapore Dollars) calculated as follows:-
(i) in relation to the Available EDB Amount, at the rate
of 0.125 per cent. per annum on the Available EDB
Amount from day to day during the Utilisation Period
ending on that Commitment Fee Payment Date; and
(ii) in relation to the Unavailable EDB Amount, at the
rate of 0.0625 per cent. per annum on the Unavailable
EDB Amount from day to day during the Utilisation
Period ending on that Commitment Fee Payment Date.
(b) If, in relation to any Utilisation Period, the
Available EDB Amount for such Utilisation Period exceeds the aggregate principal
amount of the advances made by EDB to the Borrower under the EDB Loan Agreement
during such Utilisation Period, the Available EDB Amount for the next succeeding
Utilisation Period will be increased by an amount equal to such excess.
(c) The Borrower may, by giving not less than 30 days'
notice to the Agent, increase the Available EDB Amount during any Utilisation
Period and on the date specified in the notice, the Available EDB Amount for
such Utilisation Period shall be increased by the amount specified in the
notice. For the avoidance of doubt, the commitment fee payable on the Commitment
Fee Payment Date in relation to that Utilisation Period shall be 0.125 per cent.
per annum on the increased Available EDB Amount from day to day beginning with
the date specified in the notice for such Utilisation Period and ending on that
Commitment Fee Payment Date.
(d) If, in relation to any Utilisation Period, the
Borrower has requested for an increase of the Available EDB Amount in accordance
with sub-paragraph (c) above, the Available EDB Amount for the next succeeding
Utilisation Period shall be reduced by an amount equal to such increase. For the
avoidance of doubt, if the Available EDB Amount for any Utilisation Period
exceeds the aggregate principal amount of the advances made by EDB to the
Borrower under the EDB Loan Agreement during that Utilisation Period, the
Available EDB Amount for the next succeeding Utilisation Period will be
increased by an amount equal to such excess in accordance with the provisions of
sub-paragraph (b) above.
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(2) (a) The Borrower shall pay to the Lending Banks on each
Commitment Fee Payment Date a commitment fee (which shall be payable in US
Dollars) calculated as follows:-
(i) in relation to the Available Term Amount, at
the rate of 0.125 per cent. per annum on the
Available Term Amount from day to day during
the Utilisation Period ending on that
Commitment Fee Payment Date; and
(ii) in relation to the Unavailable Term Amount,
at the rate of 0.0625 per cent. per annum on
the Unavailable Term Amount from day to day
during the Utilisation Period ending on that
Commitment Fee Payment Date.
(b) If, in relation to any Utilisation Period, the
Available Term Amount for such Utilisation Period exceeds the Advances made by
the Lending Banks to the Borrower during such Utilisation Period, the Available
Term Amount for the next succeeding Utilisation Period will be increased by an
amount equal to such excess.
(c) The Borrower may, by giving not less than 30 days'
notice to the Agent, increase the Available Term Amount during any Utilisation
Period and on the date specified in the notice, the Available Term Amount for
such Utilisation Period shall be increased by the amount specified in the
notice. For the avoidance of doubt, the commitment fee payable on the Commitment
Fee Payment Date in relation to that Utilisation Period shall be 0.125 per cent.
per annum on the increased Available Term Amount from day to day beginning with
the date specified in the notice for such Utilisation Period and ending on that
Commitment Fee Payment Date.
(d) If, in relation to any Utilisation Period, the
Borrower has requested for an increase of the Available Term Amount in
accordance with sub-paragraph (c) above, the Available Term Amount for the next
succeeding Utilisation Period shall be reduced by an amount equal to such
increase. For the avoidance of doubt, if the Available Term Amount for any
Utilisation Period exeeds the aggregate principal amount of the Advances made by
the Lending Banks to the Borrower under this Agreement during that Utilisation
Period, the Available Term Amount for the next succeeding Utilisation Period
will be increased by an amount equal to such excess in accordance with the
provisions of sub-paragraph (b) above.
(C) Participation Fee: (1) The Borrower shall pay to the Agent for
the account of the Banks a participation fee in the amount, at the time and in
the manner stated in a letter (the "Fee Letter") of today's date from the Agent
to the Borrower and countersigned by the Borrower.
(2) On receipt of the participation fee, the Agent shall pay to
each Bank its share of the participation fee in the amount already agreed
between the Agent and that Bank.
(D) Arrangement Fee: The Borrower shall pay to the Agent for the
account of the Arranger an arrangement fee in the amount, at the time and in the
manner stated in the Fee Letter.
(E) Agency Fee: The Borrower shall pay to the Agent for its own
account
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an agency fee in the amounts, at the times and in the manner stated in the Fee
Letter.
11. TAXES
(A) Payments to be Free and Clear: All sums payable by the
Borrower 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.
(B) Grossing-up of Payments: (1) If the Borrower 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, the Borrower under this Agreement,
the Borrower 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.
(2) If the Borrower 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 Bank under this Agreement (except for a
payment by the Agent or a Bank of tax on its own overall net income), the
Borrower 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.
(3) 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 (2)
to pay, the Borrower shall deliver to the Agent evidence 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.
(4) As soon as the Borrower is aware that any such deduction,
withholding or payment is required (or of any change in any such requirement),
it shall notify the Agent.
(C) Goods and Services Tax: The Borrower shall also pay to the
Agent and each Bank on demand, in addition to any amount payable by the Borrower
to the Agent or, as the case may be, the relevant Bank under this Agreement, any
goods and services, value added or other similar tax payable in respect of that
amount (and references in this Agreement to that amount shall be deemed to
include any such taxes payable in addition to it).
(D) Refund of Tax Credits: If:-
(1) the Borrower makes a payment under sub-Clause (B)(1)
or (2) (a "Tax Payment") in respect of a payment to a
Bank under this Agreement; and
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(2) that Bank determines in its absolute discretion that
it has obtained a refund of tax or obtained and used
a credit against tax on its overall net income (a
"Tax Credit") which that Bank in its absolute
discretion is able to identify as attributable to
that Tax Payment,
then, if in its absolute discretion it can do so without any adverse
consequences for that Bank, that Bank shall reimburse the Borrower 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 (D) (and, if so, what amount and when). No Bank shall
be obliged to disclose any information regarding its tax affairs and
computations.
12. CHANGES IN CIRCUMSTANCES
(A) Illegality: (1) If at any time any Guarantor Bank reasonably
determines that it is or will become unlawful or contrary to any directive of
any agency of any state for it to allow all or part of its Guarantee Commitment
to remain outstanding and/or to carry out all or any of its other obligations
under this Agreement or all or any of its obligations under the EDB Guarantee,
upon that Guarantor Bank notifying the Borrower (through the Agent):-
(a) that Guarantor Bank's Guarantee Commitment shall be
cancelled (but without prejudice to the obligations
of that Guarantor Bank under the EDB Guarantee);
(b) the Borrower shall procure the release by EDB of all
of the obligations of that Guarantor Bank under the
EDB Guarantee on or prior to such date (the "Relevant
Date") as that Guarantor Bank shall certify to be
necessary to comply with the relevant law or
directive but if the Borrower is unable for any
reason to procure the release by EDB of all of the
obligations of that Guarantor Bank under the EDB
Guarantee by the Relevant Date, the Borrower shall
pay to the Agent for the account of that Guarantor
Bank on the Relevant Date an amount equal to that
Guarantor Bank's share of the Guarantee Outstanding
Amount (which shall be held by the Agent for the
account of that Guarantor Bank and applied towards
the discharge of the obligations of the Borrower to
that Guarantor Bank under or in connection with this
Agreement and shall only be released to the Borrower
as and to the extent that the maximum contingent
liability of the Borrower to that Guarantor Bank
under this Agreement is reduced) and shall pay, on
the date of payment of such amount, any sum then due
from the Borrower to that Guarantor Bank under this
Agreement.
Without prejudice to the other provisions of this paragraph (1) and any rights
to which that Guarantor Bank may be entitled, in the event that the Borrower is
unable for any reason to procure the release by EDB of all of the obligations
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of that Guarantor Bank under the EDB Guarantee by the Relevant Date, that
Guarantor Bank may:-
(i) prepay on behalf of the Borrower or purchase itself
or procure the purchase by a nominee of all or any of
the obligations of that Guarantor Bank under the EDB
Guarantee, and any such prepayment or purchase shall
be treated as a payment made pursuant to a demand by
EDB under the EDB Guarantee and the provisions of
Clause 5 shall apply to such prepayment or purchase;
(ii) negotiate any compromise, release, discharge,
reduction or retirement of all or any part of the
obligations of that Guarantor Bank under the EDB
Guarantee and any payment made pursuant to the same
shall be treated as a payment made pursuant to a
demand by EDB under the EDB Guarantee and the
provisions of Clause 5 shall apply to such payment;
and
(iii) pay any amount received by it under sub-paragraph (b)
above to EDB in exchange for such payment of a
release by EDB, to the extent of such payment, of the
obligations of that Guarantor Bank under the EDB
Guarantee, and the provisions of Clause 5 shall apply
to such payment by that Guarantor Bank as if such
payment had been made pursuant to a demand by EDB
under the EDB Guarantee.
(2) If at any time any Lending Bank reasonably determines that it
is or will become unlawful or contrary to any directive of any agency of any
state for it to allow all or part of its Term Commitment to remain outstanding,
to make, fund or allow to remain outstanding all or part of its share of the
Advances and/or to carry out all or any of its other obligations under this
Agreement, upon that Lending Bank notifying the Borrower (through the Agent):-
(a) that Lending Bank's Term Commitment shall be
cancelled; and
(b) the Borrower shall prepay that Lending Bank's share
of each Advance on such date as that Lending Bank
shall certify to be necessary to comply with the
relevant law or directive with all unpaid accrued
interest thereon, all unpaid fees accrued to that
Lending Bank and any other sum then due to that
Lending Bank under Clause 19(A) or any other
provision of this Agreement.
(B) Increased Costs: (1) If the Agent or (as the case may be) any
Bank reasonably determines that as a result of (a) the introduction of or any
change in, or in the interpretation or application of, any law (which shall for
this purpose include any removal or modification of any exemption currently in
force in favour of the Borrower) or (b) compliance by the Agent or that Bank
with the introduction of or any change in, or the interpretation or application
of, any directive of any agency of any state (including, without limitation, a
directive which affects the manner in which that Bank allocates capital
resources to its obligations under this Agreement):-
(i) the cost to that Bank of maintaining all or any part
of its Commitments and/or of making, maintaining or
funding all or any part of its Outstandings or any
overdue sum is increased;
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and/or
(ii) any sum received or receivable by the Agent or (as
the case may be) that Bank under this Agreement or
the effective return to it under this Agreement or
the overall return on its capital is reduced (except
on account of tax on its overall net income); and/or
(iii) the Agent or (as the case may be) that Bank makes any
payment (except on account of tax on its overall net
income) or forgoes any interest or other return on or
calculated by reference to the amount of any sum
received or receivable by it under this Agreement,
the Borrower shall indemnify the Agent or (as the case may be) that Bank against
that increased cost, reduction, payment or forgone interest or other return
(except to the extent that it results from a deduction or withholding of tax)
and, accordingly, shall from time to time on demand (whenever made) pay to the
Agent for its own account or (as the case may be) for the account of that Bank
the amount certified by it to be necessary so to indemnify it.
(2) The indemnity given to a Bank by the Borrower in this sub-
Clause (B) shall not apply to or in respect of any increased cost, reduction,
payment or foregone interest or other return to the extent that it is
attributable solely to the requirement of any central bank or other fiscal,
monetary or other authority which regulates that Bank which is imposed on that
Bank by reason of that Bank's misconduct and not generally imposed by that
central bank or other fiscal, monetary or other authority on banks of the same
or similar kind or class regulated by that central bank or other fiscal,
monetary or other authority.
(C) Change in Market Conditions: (1) If, in relation to any
Interest Period relating to an Advance:-
(a) no, or only one, Reference Bank supplies a quotation
as and when required by Clause 9(B); or
(b) the Agent is notified by the Lending Banks to whom
more than 66 2/3 per cent. of that Advance is (or, if
made, would be) owing that (i) they are unable to
obtain matching deposits in the Singapore inter-bank
market at or about 11 a.m. on the second Business Day
before the first day of that Interest Period in
sufficient amounts to fund their respective shares of
that Advance during that Interest Period, or (ii) the
arithmetic mean (rounded up, if necessary, to the
next 1/16 per cent.) of the quotations used for
fixing the interest rate under Clause 9(B) does not
reflect the cost to those Lending Banks of obtaining
such deposits, or (iii) by reason of circumstances
affecting the Singapore inter-bank market, adequate
and fair means do not or will not exist for
determining the rate of interest applicable to that
Advance for that Interest Period,
the Agent shall promptly notify the Borrower and the Lending Banks.
(2) The Agent (on behalf of and after consultation with the
Lending
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Banks) shall then negotiate with the Borrower with a view to agreeing on an
alternative basis for calculating the interest payable on and/or for making,
maintaining and/or funding that Advance to which that Interest Period relates.
Any alternative basis agreed in writing by the Agent (on behalf of and with the
consent of all the Lending Banks) and the Borrower within 25 days of the Agent's
notification of the event in question shall take effect in accordance with its
terms.
(3) If an alternative basis is not so agreed, each Lending Bank's
share of that Advance shall during that Interest Period bear interest at the
rate per annum equal to the sum of the Margin and the cost to it (expressed as a
rate per annum) of funding its share during that Interest Period by whatever
means it determines to be appropriate (including the cost to it occasioned by or
attributable to complying with reserves, liquidity, deposit or other
requirements for the time being imposed on it by the relevant authority or
authorities). Each Lending Bank shall certify that cost to the Borrower as soon
as practicable after the end of that 25 day period (but in any event at least
two Business Days before the end of that Interest Period).
(D) Individual Non-Availability: (1) If, in relation to any
Interest Period relating to an Advance, any Lending Bank notifies the Agent
that:-
(a) by reason of circumstances affecting the Singapore
inter-bank market, or a particular category (which
includes that Lending Bank) of banks dealing in that
market, it is unable to obtain matching deposits in
the Singapore inter-bank market at or about 11 a.m.
on the second Business Day before the first day of
that Interest Period in sufficient amounts to fund
its share of that Advance during that Interest
Period; or
(b) by reason of circumstances affecting that market or a
particular category (which includes that Lending
Bank) of banks dealing in that market, the arithmetic
mean (rounded up, if necessary, to the next 1/16 per
cent.) of the quotations used for fixing the interest
rate under Clause 9(B) does not reflect the cost to
it of obtaining such deposits,
the Agent shall promptly notify the Borrower accordingly unless it has already
given a notification to the Borrower in relation to that Interest Period under
sub-Clause (C).
(2) The Borrower, the Agent and that Lending Bank shall then
negotiate (unless and until sub-Clause (C) comes into operation in relation to
that Interest Period) with a view to agreeing on an alternative basis for
calculating the interest payable on and/or for making, maintaining and/or
funding that Lending Bank's share of that Advance. Any alternative basis agreed
in writing by the Borrower, the Agent and that Lending Bank within 25 days of
the Agent's notification under paragraph (1) shall take effect in accordance
with its terms. If an alternative basis is not so agreed and sub-Clause (C) has
not come into operation in relation to that Interest Period, that Lending Bank's
share of that Advance shall during that Interest Period bear interest at the
rate per annum equal to the sum of the Margin and the cost to it (expressed as a
rate per annum) of funding its share during that Interest Period by whatever
means it determines to be appropriate (including the cost to it occasioned by or
attributable to complying with reserves, liquidity, deposit
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27
or other requirements for the time being imposed on it by the relevant authority
or authorities). That Lending Bank shall certify that cost to the Borrower as
soon as practicable after the end of that 25 day period (but in any event at
least two Business Days before the end of that Interest Period). The Borrower
may, by notice to that Lending Bank, request that Lending Bank to assign and
transfer all of the rights and obligations of that Lending Bank to such person
as may be named by the Borrower in its notice and that Lending Bank shall take
such steps, at the cost and request of the Borrower, as may be necessary to
assign and transfer such rights and obligations to such person (and, for the
avoidance of doubt, such Lending Bank shall not be obliged to take any such step
until it has been indemnified against any and all costs and expenses (including
legal fees) which it may incur as a result).
(E) Mitigation: If any circumstances arise which result, or would
on the giving of notice (or the like) result, in the Borrower having to make a
payment to or for the account of the Agent or any Bank under sub-Clause (B) or
in the Guarantee Commitments or any part thereof or the Term Commitments or any
part thereof, being cancelled under sub-Clause (A), then without in any way
limiting, reducing or otherwise qualifying any of the obligations of the
Borrower under this Clause, the Borrower and the Agent or, as the case may be,
the relevant Bank shall enter into consultation with each other with a view
towards the Agent or, as the case may be, that Bank assigning or transferring
some or all of its rights or obligations under this Agreement to another person
acceptable to the Borrower and willing to take that assignment or transfer
(provided that no obligation whatsoever shall be imposed on the Agent or, as the
case may be, such Bank to procure any person to accept that assignment or
transfer) and/or the mitigation of the effect of those circumstances on the
Borrower. However, none of the Banks nor the Agent shall be obliged to take any
such steps which would or might have an adverse effect on the Agent or, as the
case may be, such Bank.
13. PAYMENTS
(A) By Lending Banks: (1) On each date on which an Advance is to
be made, each Lending Bank shall make available to the Agent its share (if any)
of that Advance available to the Agent by payment in US Dollars and in funds
which are for same day settlement in the New York Clearing House Interbank
Payments System (or, if such funds cease to exist or, in the Agent's opinion,
cease to be customary for the settlement in New York City of international
banking transactions in US Dollars, such other US Dollar funds as the Agent may
from time to time determine to be customary for that purpose), so as to be
received before 11 a.m. (local time in New York City) to such account of the
Agent with such bank in New York City as the Agent may from time to time
designate.
(2) The Agent shall make the amounts so received by it from the
Lending Banks available to the Borrower before close of business in New York
City by payment in the same currency and funds as received by the Agent to such
account of the Borrower with a bank in New York City as the Borrower shall have
specified in the request for that Advance. If any Lending Bank makes its share
of an Advance available to the Agent later than required by paragraph (1), the
Agent shall make that share available to the Borrower as soon as practicable
thereafter.
(B) To Banks: (1) Unless otherwise provided by this Agreement, all
repayments of principal and payments of interest, commitment fee, guarantee
commission and any other sums due from the Borrower to the Banks under this
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28
Agreement (for the purposes of this sub-Clause (B) collectively called
"Payments") shall be made in the following manner and upon the following terms:-
(a) any Payment to be made in respect of principal of an
Advance or of any commitment fee pursuant to Clause
10(B)(2) shall be made in US Dollars, any Payment to
be made in respect of interest shall be made in the
currency provided in Clause 9(D) or 18(A) (as the
case may be) and each other Payment shall be made in
Singapore Dollars; and
(b) Payments shall be made:-
(i) if that sum is due in Singapore Dollars, by
payment in Singapore Dollars and in
immediately available and freely
transferable funds, so as to be received
before 11 a.m., to such account of the Agent
with such bank in Singapore as the Agent may
from time to time designate; and
(ii) if that sum is due in US Dollars, by payment
in US Dollars and in funds which are for
same day settlement in the New York Clearing
House Interbank Payment System (or, if such
funds cease to exist or, in the Agent's
opinion, cease to be customary for the
settlement in New York City of international
banking transactions in US Dollars, such
other US Dollar funds as the Agent may from
time to time determine to be customary for
that purpose), so as to be received before
11 a.m. (local time in New York City) to
such account of the Agent with such bank in
New York City as the Agent may from time to
time designate.
(2) The Agent shall make available to each Bank its pro rata
share (if any) of any sum so received by it from the Borrower before close of
business in the Centre of the relevant currency on that date by payment in the
same currency and funds as received by the Agent to such account of that Bank
with such bank in that Centre as it shall have specified to the Agent. If any
sum is made available to the Agent later than required by paragraph (1), the
Agent shall make each Bank's share (if any) available to it as soon as
practicable thereafter.
(C) Order of Distribution: (1) If the amount received by the
Agent from the Borrower for the account of the Guarantor Banks on any date is
less than the total sum remaining and/or becoming due to the Guarantor Banks
under this Agreement on that date, the Agent shall apply that amount in or
towards payment of the following sums in the following order:-
(1) first, any sum then due to the Agent in its capacity
as such;
(2) secondly, in or towards payment pro rata of any sums
(other than interest or principal) then due to the
Guarantor Banks (or any of them);
(3) thirdly, in or towards payment pro rata of any
interest then due to the Guarantor Banks (or any of
them); and
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(4) fourthly, in or towards payment pro rata of any
principal then due to the Guarantor Banks (or any of
them).
Any such applications shall override any purported appropriation by any person.
(2) If the amount received by the Agent from the Borrower for the
account of the Lending Banks on any date is less than the total sum remaining
and/or becoming due to the Lending Banks under this Agreement on that date, the
Agent shall apply that amount in or towards payment of the following sums in the
following order:-
(1) first, any sum then due to the Agent in its capacity
as such;
(2) secondly, in or towards payment pro rata of any sums
(other than principal of or interest on the Advances)
then due to the Lending Banks (or any of them);
(3) thirdly, in or towards payment pro rata of any
interest then due on the Advances to the Lending
Banks (or any of them); and
(4) fourthly, in or towards payment pro rata of any
principal then due to the Lending Banks (or any of
them).
Any such applications shall override any purported appropriation by any person.
(D) Refunding of Payments: The Agent shall not be obliged to make
available to any person any sum which it is expecting to receive for the account
of that person until it has been able to establish that it has received that
sum. However, it may do so if it wishes. If and to the extent that it does so
but it transpires that it had not then received the sum which it paid out:-
(1) the person to whom the Agent made that sum available
shall on request refund it to the Agent; and
(2) that person or (at the option of the Agent) the
person by whom that sum should have been made
available shall on request pay to the Agent the
amount (as certified by the Agent) which will
indemnify the Agent against any funding or other
cost, loss, expense or liability sustained or
incurred by it as a result of paying out that sum
before receiving it but without prejudice to the
rights of any party hereto against such defaulting
party.
(E) Non-Business Days: (1) If any Interest Payment Date or
Repayment Date would otherwise fall on a non-Business Day, it shall instead fall
on the next Business Day in the same calendar month (if there is one) or the
preceding Business Day (if there is not).
(2) Any payment to be made by the Borrower on a day which is not
an Interest Payment Date or Repayment Date and which would otherwise be due on a
non-Business Day shall instead be due on the next Business Day.
14. REPRESENTATIONS AND WARRANTIES
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The Borrower represents and warrants to and for the benefit of
each other party to this Agreement as follows:-
(1) Status: it is a company duly incorporated and validly
existing under the laws of Singapore 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 the Financing Documents, to undertake the
Project and to operate the Plant;
(3) Authorisation and Consents: save for the payment of
stamp duty on this Agreement in Singapore (which
shall be effected within two Business Days from the
date of this Agreement), all action, conditions and
things required to be taken, fulfilled and done
(including the obtaining of any necessary consents)
in order (a) (i) to enable it lawfully to enter into,
exercise its rights and perform and comply with its
obligations under the Financing Documents, (ii) to
ensure that those obligations are valid, legally
binding and enforceable, (iii) to ensure that those
obligations rank and will at all times rank in
accordance with Clause 16(1) and (iv) to make the
Financing Documents admissible in evidence in the
courts of Singapore and the Netherlands and (b) to
undertake the Project and to operate the Plant 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 the Financing Documents do not
and will not violate, or exceed any borrowing or
other power or restriction granted or imposed by, (a)
any law to which it is subject or (b) its Memorandum
or Articles of Association;
(5) Obligations Binding: its obligations under the
Financing Documents 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 the Financing
Documents do not and will not (a) 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, or (b) result in the existence of, or oblige
it to create, any security over those assets;
(7) No Default: no Event of Default or Potential Event of
Default has occurred, or will occur as a result of
the issue of the EDB Guarantee or the making of any
Advance, other than any waived in accordance with
Clause 25(B), 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;
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31
(8) Existing Security: no security exists on or over any
of its assets except as permitted by Clause 16(2);
(9) Accounts: its audited accounts as at 31st December,
1997 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;
(b) together with those notes, give a true and
fair view of its state of affairs and
financial condition and operations 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;
(10) No Material Adverse Change: there has been no
material adverse change in its financial condition or
operations since 31st December, 1997;
(11) 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 the Financing
Documents or (b) which has or will have a material
adverse effect on it;
(12) 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;
(13) Taxes: it has filed or caused to be filed all tax
returns which are required to be filed by it and has
paid all taxes due and payable by it or affecting its
assets or the Project (insofar as they are due and
payable) except to the extent
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32
that any such taxes or assessments are being
contested in good faith by appropriate proceedings
(provided that it has established (in the reasonable
opinion of the Agent) prudent reserves against such
liability);
(14) Compliance with Laws: it is in compliance with all
laws and regulations affecting the Project;
(15) Intellectual Property: it has or will have available
to it all intellectual property of every description
(including, without limitation, licences, copyrights,
design registrations and know-how) necessary for the
implementation of the Project and the operation of
the Plant;
(16) Shareholding: (a) CSM is and 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 its issued share capital and
Singapore Technologies Pte Ltd is and 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; and
(b) HP has and will have an effective shareholding in
not less than 30 per cent. of its issued share capital for a
period of not less than four years from the date of the Joint
Venture Agreement;
(17) No Misstatement: (a) the information in the
Information Package relating to, and provided by, it
was true, complete and accurate in all material
respects; and
(b) the opinions, projections and forecasts in the
Information Package relating to, and provided by, it and the
assumptions on which they are based were arrived at after due
and careful consideration and enquiry and genuinely
represented its views; and
(18) Repetition: each of the above representations and
warranties will be correct and complied with on the
date of each request for an Advance, on the date on
which each Advance is to be made, the date of the
request for the issue of the EDB Guarantee, the date
on which the EDB Guarantee is issued and each
Interest Payment Date as if repeated then by
reference to the then existing circumstances.
15. INFORMATION
The Borrower undertakes that, so long as any sum remains to be
lent or remains payable under this Agreement:-
(1) Preparation of Accounts: it will ensure that all
audited accounts to be delivered by it under this
Agreement are prepared in such manner that Clause
14(9) would be complied with if applied to those
accounts by Clause 14(18);
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(2) Audited Accounts: as soon as reasonably practicable
after the same are available and in any event within
180 days after the end of each of its financial years
(beginning with the current one), it will deliver to
the Agent enough copies for the Banks of its audited
accounts as at the end of and for that financial
year, together with copies of the related reports and
approvals referred to in Clause 14(9)(a);
(3) Semi-Annual Information: as soon as reasonably
practicable after the same are available and in any
event within 45 days after the end of the first six
months of each of its financial years (beginning with
the current one), it will deliver to the Agent enough
copies for the Banks of its unaudited accounts as at
the end of and for that six month period;
(4) Litigation: it will as soon as reasonably practicable
after the same are available, 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
14(11) incorrect;
(5) Events of Default: it will notify the Agent of the
occurrence of any Event of Default or Potential Event
of Default (and of any action taken or proposed to be
taken to remedy it) promptly after becoming aware of
it. Promptly after any request made by the Agent from
time to time, it will deliver to the Agent a
certificate signed on its behalf by such person as
may be acceptable to the Agent for that purpose
confirming that, so far as it is aware and (if
applicable) except as previously notified to the
Agent or waived in accordance with Clause 25(B), no
Event of Default or Potential Event of Default has
occurred or (as the case may be) setting out details
of any which has occurred and has not been so
notified and of which it is aware and of any action
taken or proposed to be taken to remedy it;
(6) Progress Reports: it will deliver to the Agent,
within 14 days after the end of each quarter
(beginning with the current one) ending prior to the
date of Completion, a report in the form agreed
between the Borrower and the Banks prior to the date
of this Agreement of the construction and
implementation of the Project;
(7) Suspension of Work: as soon as practicable after it
becomes aware of it, it will inform the Agent if the
construction of the Plant (or any part thereof) is
suspended for more than 60 consecutive days or if the
Plant ceases operation for more than 60 consecutive
days at any time;
(8) Loss or Damage: as soon as practicable after it
becomes aware of it, it will inform the Agent of any
material loss or damage to the Plant (or any part
thereof); and
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(9) Other Information: it will as soon as reasonably
practicable deliver to the Agent for distribution to
the Banks (a) such other information relating to the
financial condition or business of it as the Agent
(or any Bank through the Agent) may from time to time
reasonably require, and (b) all financial, technical
and other information as the Agent (or any Bank
through the Agent) may from time to time reasonably
require in relation to the Project or the Plant
(except for such information of a proprietary nature
or as is reasonably regarded by it as confidential).
16. UNDERTAKINGS
The Borrower undertakes that, so long as any sum remains to be
lent or remains payable under this Agreement:-
(1) Ranking of Obligations: its payment obligations under
this Agreement rank and will at all times rank at
least equally and rateably in all respects with all
its other unsecured indebtedness except for such
indebtedness as would, by virtue only of the law in
force in Singapore, be preferred in the event of its
winding-up;
(2) Negative Pledge: it will not create or have
outstanding any security on or over its assets,
except for:-
(a) liens arising solely by operation of law (or
by an agreement evidencing the same) in the
ordinary course of its business in respect
of indebtedness which either (i) has been
due for less than 21 days or (ii) is being
contested in good faith and by appropriate
means; and
(b) any other security created with the prior
consent in writing of the Majority Banks
(such consent not to be unreasonably
withheld);
(3) Disposals: it will not, (whether by a single
transaction or a number of related or unrelated
transactions and whether at one time or over a period
of time) sell, transfer, lease out, lend or otherwise
dispose of (whether outright, by a
sale-and-repurchase or sale-and-leaseback
arrangement, or otherwise) all or substantially all
of its assets nor of any part of its assets which,
either alone or when aggregated with all other
disposals required to be taken into account under
this paragraph (3), is substantial in relation to its
assets or the disposal of which (either alone or when
so aggregated) could have a material adverse effect
on it. The following disposals shall not be taken
into account under this paragraph (3):-
(a) disposals in the ordinary course of
operations; and
(b) any disposal which the Majority Banks shall
have agreed shall not be taken into account;
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(4) Change of Business: it will ensure that there is no
material change in the nature of its business taken
as a whole (whether by a single transaction or a
number of related or unrelated transactions, whether
at one time or over a period of time and whether by
disposal, acquisition or otherwise);
(5) Compliance with Law: it will at all times comply with
all applicable laws relating to the Project or the
operation of the Plant;
(6) Maintenance of Consents: it will maintain or cause to
be maintained in full force and effect all consents
necessary or advisable for the construction of the
Project or the operation of the Plant;
(7) Completion: it will cause Completion to occur by 31st
December, 1999;
(8) Maintenance: it will operate the Plant in accordance
with good industry practice and keep and maintain the
Plant in good working order and condition subject to
normal wear and tear;
(9) Abandonment: it will not abandon the Project;
(10) Other Business: it will not carry on any business or
activity other than the ownership and operation of
wafer fabrication plants or any other businesses
related thereto;
(11) Inspection of Plant: it will permit the Agent, any
Bank and any representative appointed by the Agent,
upon reasonable notice, at reasonable times and with
reasonable frequency (which shall not be more
frequent than once in any calendar year unless the
Agent or that Bank is of the reasonable opinion that
the Plant is in jeopardy), to carry out an inspection
of the Plant and for this purpose provide or procure
the provision to any such person or representative of
reasonable access and cause its agents and employees
to give their full co-operation on the occasion of
any such inspection;
(12) Financial Year: it will not change its financial
year-end from 31st December;
(13) Restricted Payments: it will not pay out any dividend
or repay or redeem any share capital for any of its
financial years unless it has duly made all payments
payable under this Agreement during that financial
year and will not in any event declare or pay out any
dividend or repay or redeem any share capital before
2000;
(14) EDB Loan Agreement: it will (a) not make or agree to
any amendment to the EDB Loan Agreement without the
prior consent in writing of all the Guarantor Banks
and will notify the Agent of the occurrence of any
Event of Default (as defined in the EDB Loan
Agreement) by it under the EDB Loan
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Agreement, (b) duly perform and comply with its
obligations under the EDB Loan Agreement (including,
without limitation, its obligation to repay the EDB
Loan in accordance with the repayment schedule as set
out in the EDB Loan Agreement), (c) ensure that the
aggregate principal amount of the advances made by
EDB to the Borrower during any Utilisation Period
shall not exceed the Available EDB Amount during that
Utilisation Period (as may be increased in accordance
with the provisions of Clause 10(B)(1)(c)), (d)
request EDB to notify the Guarantor Banks of the
principal amount and date of each advance made under
the EDB Loan Agreement, any repayment or prepayment
thereunder or, as the case may be, the then revised
outstanding balance of principal for the purposes of
Clause 9 of the EDB Guarantee, and (e) as soon as
reasonably practicable and in any event within three
Business Days of the same, notify the Agent of any
repayment or prepayment of the EDB Loan under the EDB
Loan Agreement;
(15) Joint Venture Agreement: it will give to the Agent
(a) not less than 30 days prior notice in writing of
the termination of the Joint Venture Agreement and
(b) as soon as practicable notice in writing of any
material breach by any party of its obligations under
the Joint Venture Agreement;
(16) Financial Covenants: it will ensure that:-
(a) the ratio of its Borrowings to its Net Worth
will not at any time exceed 1.5:1; and
(b) at each Calculation Date falling in 2000 and
2001, DSCR will not be less than 1.1 (as
evidenced by the Current Financial Report
for the Calculation Period ending on that
Calculation Date); and
(c) at each Calculation Date falling after 31st
December, 2001, DSCR will not be less than
1.2 (as evidenced by the Current Financial
Report for the Calculation Period ending on
that Calculation Date);
(17) Insurances: it will:-
(a) effect and maintain or procure that there
shall be effected and maintained, in
accordance with good insurance practice, all
such policies as the Agent may from time to
time reasonably require against such risks
and liabilities customary for businesses
similar to its business covering the
construction phase and the operational phase
of the Project, in each case from the
respective dates and in such manner and on
such terms, including the level of cover, as
may reasonably be required by the Agent with
such reputable insurance companies or
underwriters agreed between the Borrower and
the Banks prior to the date of this
Agreement or such other reputable insurance
companies or underwriters notified by the
Borrower to the Agent from time to time and
until otherwise
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required or permitted by the Agent, such
insurances will comprise the following:-
(i) prior to completion of the
construction phase for the Plant:-
(aa) statutory workmen's
compensation and employer
liability insurance;
(bb) third party liability
insurance;
(cc) comprehensive automobile
liability insurance, if
applicable;
(dd) erection all risks
insurance; and
(ee) marine cargo insurance;
(ii) after completion of the construction
phase of the Plant:-
(aa) statutory workmen's
compensation and employer
liability insurance;
(bb) third party liability
insurance;
(cc) comprehensive automobile
liability insurance, if
applicable;
(dd) marine cargo insurance;
(ee) property damage insurance;
and
(ff) business interruption
insurance;
(b) pay, or where it is not primarily
responsible for taking out any insurance
policy required by this paragraph (17),
promptly, upon becoming aware that the same
are due and not paid, pay or ensure the
payment of all initial and subsequent
instalments of insurance premiums and not
take or omit to take any action which would
reduce in any material respect or render
void the cover provided by any of the
insurance policies;
(c) from time to time upon reasonable request
supply the Agent with copies of all
contracts and policies (including any
contract notes) issued in respect of the
insurance policies and reinsurance policies
and of receipts (or other evidence of
payment) for such insurances; and
(d) as soon as reasonably practicable and in any
event within seven Business Days after
becoming aware of the same notify the Agent
of any claims in excess of S$1,000,000, or
the equivalent thereof in any other
currency, which it may make under any such
policy of
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insurance.
The Agent shall be entitled to pay any premiums or
other amounts payable by it, in respect of the insurance
policies and it will forthwith upon demand reimburse the
Agent for all such amounts paid;
(18) No Subsidiaries: it will not establish, incorporate
or acquire any subsidiary or subsidiaries without the
prior consent in writing of the Majority Banks; and
(19) Further Assurance: it will from time to time on
request by the Agent (or by any Bank through the
Agent) do or procure the doing of all such acts and
will execute or procure the execution of all such
documents as the Agent or any Bank may reasonably
consider necessary for giving full effect to the
Financing Documents 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
the Financing Documents.
17. EVENTS OF DEFAULT
(A) Events of Default: The following are Events of Default:-
(1) Non-Payment: (a) the Borrower does not pay in the
manner provided in this Agreement any sum payable
under it when due or (b) any Shareholder does not pay
in the manner provided in the Shareholders
Undertaking any sum payable under it when due;
(2) Breach of Other Obligations: (a) the Borrower does
not perform or comply with any one or more of its
obligations (other than the payment obligation of the
Borrower referred to in paragraph (1)) under the
Financing Documents and, if in the reasonable opinion
of the Majority Banks that default is capable of
remedy, it is not in the reasonable opinion of the
Majority Banks remedied within 14 days of its
occurrence; or
(b) any Shareholder does not perform or comply with
any one or more of its obligations (other than the payment
obligations of such Shareholder referred to in paragraph (1))
under the Shareholders Undertaking and, if in the reasonable
opinion of the Majority Banks that default is capable of
remedy, it is not in the reasonable opinion of the Majority
Banks remedied within 14 days of its occurrence;
(Provided that if there is a breach by the Borrower
of its obligations under Clause 16(16)(b) or Clause 16(16)(c)
on any Calculation Date, such a breach will not be regarded as
an Event of Default if (i) the aggregate amount of Shareholder
Funding (as defined in the Shareholders Undertaking) is not
less than S$720,000,000 as at that Calculation Date (assuming
due compliance by the Shareholders of their respective
obligations under Clause 2(A) of the Shareholders Undertaking)
and (ii) the Shareholders (or any of them) have paid to the
Borrower (by way
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of Shareholder Funding) within 60 days from that Calculation
Date, an 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);
(3) Breach of Warranty: (a) any representation, warranty
or statement by the Borrower in the Financing
Documents or in any document delivered under the
Financing Documents is not complied with or is or
proves to have been incorrect when made or deemed
repeated and, if in the reasonable opinion of the
Majority Banks that breach is capable of remedy, it
is not in the reasonable opinion of the Majority
Banks remedied within 14 days of its occurrence; or
(b) any representation, warranty or statement by any
Shareholder in the Shareholders Undertaking or in any document
delivered under the Shareholders Undertaking is not complied
with or is or proves to have been incorrect when made or
deemed repeated and, if in the reasonable opinion of the
Majority Banks that breach is capable of remedy, it is not in
the reasonable opinion of the Majority Banks remedied within
14 days of its occurrence;
(4) Cross Default: any other indebtedness of the Borrower
or any Shareholder (other than a Shareholder which
has discharged all its obligations under Clause 2(A)
of the Shareholders Undertaking) in respect of
borrowed money is or is declared to be or is capable
of being rendered due and payable before its normal
maturity by reason of any default, event of default
or the like (however described) or is not paid when
due or, as a result of any default, event of default
or the like (however described) any facility relating
to any such indebtedness is or is declared to be or
is capable of being cancelled or terminated before
its normal expiry date or any person otherwise
entitled to use any such facility is not so entitled.
However, no Event of Default will occur under this
paragraph (4) unless and until the aggregate amount
of the indebtedness in respect of which one or more
of the events mentioned above in this paragraph (4)
has/have occurred equals or exceeds S$20,000,000 or
its equivalent (as reasonably determined by the
Agent);
(5) Insolvency: the Borrower or any Shareholder is (or
is, or could be, deemed by law or a court to be)
insolvent or unable to pay its debts, stops, suspends
or threatens to stop or suspend payment of all or any
part of (or of a particular type of) its indebtedness
(other than the stopping or suspension of payment of
any part of its indebtedness if such indebtedness is
being contested by it in good faith and by
appropriate means), begins negotiations or takes any
other step with a view to the deferral, rescheduling
or other readjustment of all or any part of (or of a
particular type of) its indebtedness (or of any part
which it will or might otherwise be unable to pay
when due), proposes or makes a general assignment or
an arrangement or composition with or
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for the benefit of the relevant creditors or a
moratorium is agreed or declared in respect of or
affecting all or any part of (or of a particular type
of) the indebtedness of the Borrower or any
Shareholder (other than a Shareholder which has
discharged all its obligations under Clause 2(A) of
the Shareholders Undertaking);
(6) Enforcement Proceedings: a distress, attachment,
execution or other legal process is levied, enforced
or sued out on or against the assets of the Borrower
or any Shareholder (other than a Shareholder which
has discharged all its obligations under Clause 2(A)
of the Shareholders Undertaking) and is not
discharged or stayed within 14 days;
(7) Security Enforceable: any security on or over the
assets of the Borrower or any Shareholder (other than
a Shareholder which has discharged all its
obligations under Clause 2(A) of the Shareholders
Undertaking) becomes enforceable;
(8) Winding-up: any step is taken by any person with a
view to the winding-up of the Borrower or any
Shareholder (other than a Shareholder which has
discharged all its obligations under Clause 2(A) of
the Shareholders Undertaking) or (except for the
purpose of and followed by a reconstruction,
amalgamation, reorganisation, merger or consolidation
on terms approved by the Majority Banks before that
step is taken) or for the appointment of a liquidator
(including a provisional liquidator), receiver,
judicial manager, trustee, administrator, agent or
similar officer of the Borrower or any Shareholder
(other than a Shareholder which has discharged all
its obligations under Clause 2(A) of the Shareholders
Undertaking) or over any part of the assets of the
Borrower or any Shareholder (other than a Shareholder
which has discharged all its obligations under Clause
2(A) of the Shareholders Undertaking);
(9) Cessation of Business: the Borrower or any
Shareholder (other than a Shareholder which has
discharged all its obligations under Clause 2(A) of
the Shareholders Undertaking) ceases or threatens to
cease to carry on all or a substantial part of its
business;
(10) Nationalisation: any step is taken by any person with
a view to the seizure, compulsory acquisition,
expropriation or nationalisation of all or a material
part of the assets of the Borrower or any Shareholder
(other than a Shareholder which has discharged all
its obligations under Clause 2(A) of the Shareholders
Undertaking);
(11) Consents: any action, condition or thing (including
the obtaining of any necessary consent) at any time
required to be taken, fulfilled or done for any of
the purposes stated in Clause 14(3) is not taken,
fulfilled or done, or any such consent ceases to be
in full force and effect without modification or any
condition in or relating to any such consent is not
complied with (unless that consent or
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condition is no longer required or applicable);
(12) Illegality: it is or will become unlawful for the
Borrower to perform or comply with any one or more of
its obligations under the Financing Documents or for
any Shareholder to perform or comply with any one or
more of its obligations under the Shareholders
Undertaking;
(13) Cessation: any Financing Document ceases for any
reason (or is claimed by the Borrower not) to be the
legal and valid obligations of the Borrower, binding
upon it in accordance with its terms or the
Shareholders Undertaking ceases for any reason (or is
claimed by any Shareholder not) to be the legal and
valid obligations of any Shareholder, binding upon it
in accordance with its terms;
(14) Litigation: any litigation, arbitration or
administrative proceeding (other than those
reasonably determined by the Majority Banks to be of
a frivolous or vexatious nature) is current or
pending (a) to restrain the exercise of any of the
rights and/or the performance or enforcement of or
compliance with any of the obligations of the
Borrower under the Financing Documents or for any
Shareholder to perform or comply with any one or more
of its obligations under the Shareholders Undertaking
or (b) which has or could have a material adverse
effect on the Borrower or on any Shareholder (other
than a Shareholder which has discharged all its
obligations under Clause 2(A) of the Shareholders
Undertaking);
(15) Non-Completion: for any reason Completion has not
occurred by 31st December, 1999;
(16) Abandonment: the Project or any part of the Project
is cancelled or abandoned;
(17) Damage: the Plant or any part of the Plant is damaged
to an extent which, in the reasonable opinion of the
Majority Banks, renders it impossible or
impracticable to reinstate it within any reasonable
period specified by the Majority Banks;
(18) Plant: a total loss or constructive total loss occurs
in relation to the Plant;
(19) Infringement of Rights: at any time after any person
commences a law suit or other legal proceedings
against the Borrower (whether as sole defendant or
jointly with one or more other persons) alleging that
the Borrower has infringed any third party
intellectual property rights in the course of
manufacturing products in Singapore, in the operation
of the Plant in Singapore or otherwise, the Majority
Banks reasonably determine that the potential or
actual liability of the Borrower in respect of such
law suit or other legal proceedings would be
reasonably likely to result in the Borrower being
unable to perform or comply with any of its
obligations under the Financing Documents;
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(20) Shareholding: (a) CSM ceases for any reason to 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 or Singapore Technologies Pte
Ltd ceases for any reason to 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; or
(b) HP ceases for any reason to have an effective
shareholding in at least 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;
(21) Declared Company: the Borrower or any Shareholder
(other than a Shareholder which has discharged all
its obligations under Clause 2(A) of the Shareholders
Undertaking) is declared by the Minister for Finance
to be a company to which Part IX of the Companies
Act, Chapter 50 applies;
(22) Analogous Event: any event occurs which, under the
law of any relevant jurisdiction, has an analogous or
equivalent effect to any of the events mentioned in
paragraphs (5), (6), (8) or (10); or
(23) Material Adverse Change: any event occurs or
circumstances arise which the Majority Banks
reasonably determine give(s) reasonable grounds for
believing that the Borrower will not (or will be
unable to) perform or comply with any one or more of
its obligations under any Financing Document or that
any Shareholder (other than a Shareholder which has
discharged all its obligations under Clause 2(A) of
the Shareholders Undertakings) will not (or will be
unable to) perform or comply with any one or more of
its obligations under the Shareholders Undertaking.
(B) Cancellation/Acceleration: (1) If at any time and for any
reason (and whether within or beyond the control of any party to this Agreement)
any Event of Default has occurred then at any time thereafter, while an Event of
Default is continuing, the Agent may and, if so instructed by the Majority
Banks, shall by notice to the Borrower:-
(a) declare the Commitments to be cancelled, whereupon
they shall be cancelled; and/or
(b) declare all Advances, all unpaid accrued interest or
fees and any other sum then payable under this
Agreement to be immediately due and payable,
whereupon they shall become so due and payable;
and/or
(c) demand from the Borrower payment of an amount equal
to the Guarantee Outstanding Amount, whereupon the
Borrower shall pay to the Agent such amount, which
shall be held by the Agent for the account of the
Guarantor Banks and applied towards the discharge of
the obligations of the Borrower to
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the Guarantor Banks under or in connection with this
Agreement. Without prejudice to the other provisions
of this sub-paragraph (c) and any rights to which the
Agent or any Guarantor Bank may be entitled, the
Agent may:-
(i) prepay on behalf of the Borrower or purchase
itself or procure the purchase by a nominee
of all or any of the obligations of the
Guarantor Banks under the EDB Guarantee, and
any such prepayment or purchase shall be
treated as a payment made pursuant to a
demand by EDB under the EDB Guarantee and
the provisions of Clause 5 shall apply to
such prepayment or purchase;
(ii) negotiate any compromise, release,
discharge, reduction or retirement of all or
any of the obligations of the Guarantor
Banks under the EDB Guarantee and any
payment made pursuant to the same shall be
treated as a payment made pursuant to a
demand by EDB under the EDB Guarantee and
the provisions of Clause 5 shall apply to
such payment; and
(iii) pay any amount received by it under
sub-paragraph (c)(ii) above to EDB in
exchange for such payment of a release by
EDB, to the extent of such payment, of the
obligations of the Guarantor Banks under the
EDB Guarantee, and the provisions of Clause
5 shall apply to such payment by the
Guarantor Banks as if such payment had been
made pursuant to a demand by EDB under the
EDB Guarantee.
(2) Without prejudice to any of the obligations of the Borrower
under this Agreement (including, without limitation, the obligation of the
Borrower to make any payment to the Agent and/or any of the Banks under
paragraph (1) above), the Agent shall, within three Business Days after any
request from the Borrower made at any time after the making of a declaration by
the Agent under paragraph (1) above by reason of the occurrence of an event
referred to in sub-Clause (A)(23) above, notify the Borrower of the grounds for
the determination made by the Majority Banks referred to in that sub-Clause
(A)(23).
18. DEFAULT INTEREST
(A) Interest on Overdue Sums: If the Borrower does not pay any
sum payable under this Agreement (including, without limitation, any sum payable
under this Clause) when due, it shall pay interest on the amount from time to
time outstanding in respect of that overdue sum, in the currency of that overdue
sum, for the period beginning on its due date and ending on the date of its
receipt by the Agent (both before and after judgment) in accordance with this
Clause. For the purpose of this Clause, if any payment is received by the Agent
on the due date, but after the time required by Clause 13(A) and too late to be
made available by the Agent on that due date to the person(s) entitled to it
under Clause 13(C), that payment shall be deemed to be received on the next
Business Day.
(B) Default Interest Periods and Rates: Interest under this
Clause shall be calculated by reference to successive Interest Periods, each of
which
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(other than the first, which shall begin on the due date) shall begin on the
last day of the previous one. Each such Interest Period shall be of one month or
such other period as the Agent may from time to time select and (1) the rate of
interest applicable to an overdue sum denominated in US Dollars for all or any
part of a particular Interest Period relating to that overdue sum shall be the
rate per annum equal to the sum of three per cent. and the rate which would be
applicable to that overdue sum for (or, as the case may be, for that part of)
that Interest Period under Clause 9(B) if that overdue sum were a non-overdue
Advance and (2) the rate of interest applicable to any other overdue sum
denominated in Singapore Dollars for all or any part of a particular Interest
Period relating to that overdue sum shall, in respect of each person's share of
that overdue sum on each day during that Interest Period, be the rate per annum
equal to the sum of three per cent., the Margin and the cost to that person (as
certified by it to the Agent and expressed as a rate per annum) of funding its
share (including, without limitation, the Swap Rate in relation to that overdue
sum, except as follows:-
(a) subject to the following exceptions, until the third
Business Day after the Agent becomes aware of the
relevant default, each Interest Period relating to
the relevant overdue sum denominated in US Dollars
shall be an "overnight" period beginning on one
Business Day and ending on the next and the rate of
interest for a particular "overnight" period shall be
the rate per annum equal to the sum of three per
cent., the Margin and the arithmetic mean (rounded
up, if necessary, to the next 1/16 per cent.) of the
respective rates quoted by each Reference Bank to the
Agent on request as the rate at which it is offering
"overnight" deposits for that period in amounts
comparable to that overdue sum;
(b) if the overdue sum is of principal of an Advance and
becomes due otherwise than on an Interest Payment
Date relating to that Advance, the first default
Interest Period applicable to that overdue sum shall
end on that Interest Payment Date and the rate of
interest applicable to that sum for that Interest
Period shall be the rate per annum equal to the sum
of three per cent. and the rate applicable to it
immediately before it became due; and
(c) if any event equivalent to those mentioned in Clause
12(C) occurs in relation to any Interest Period
applicable to an overdue sum, the rate of interest
payable on each person's share of that sum for all or
any part of that Interest Period shall be the sum of
three per cent., the Margin and the cost to that
person (as certified by it and expressed as a rate
per annum) of funding its share during that Interest
Period by whatever means it determines to be
appropriate (including the cost occasioned by or
attributable to complying with reserves, liquidity,
deposit or other requirements for the time being
imposed on it by the relevant authority or
authorities).
(C) Notification of Interest Rates: The Agent shall promptly
notify the Borrower and the Banks of each rate of interest determined in
accordance with sub-Clause (B).
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(D) Payment and Compounding of Default Interest: (1) On the last
day of each Interest Period, the Borrower shall pay the unpaid interest accrued
during that Interest Period on the overdue sum to which it relates at the rate
applicable for that Interest Period.
(2) Interest accrued under this Clause on an overdue sum shall be
due on demand by the Agent but, if not previously demanded, shall be paid when
due in accordance with paragraph (1). If not paid when due, the interest shall
be added to that overdue sum and itself bear interest accordingly.
19. INDEMNITIES
(A) Miscellaneous Indemnities: The Borrower shall on demand
indemnify each of the Agent, the Arrangers and the Banks against any funding or
other cost, loss, expense or liability sustained or incurred by it as a result
of:-
(1) an Advance not being made by reason of non-fulfilment
of any of the conditions in Clause 6(A) or the
Borrower purporting to revoke a notice requesting an
Advance;
(2) the occurrence or continuance of any Event of
Default; or
(3) the receipt or recovery by any party (or the Agent on
its behalf) of all or any part of an Advance or an
overdue sum otherwise than on the last day of an
Interest Period relating to that Advance or overdue
sum.
(B) Broken Funding Costs: In the case of sub-Clause (A)(1) and
(3) above, the amount payable shall in any event include the amount (if any) by
which:-
(1) the amount of interest which the relevant person is
able to obtain by placing an amount equal to its
share of the relevant Advance or overdue sum on
deposit in the Singapore inter-bank market, for the
remainder of the relevant Interest Period, as soon as
reasonably practicable after it becomes aware that
the relevant Advance is not being made or (as the
case may be) of the relevant receipt or recovery,
is less than:-
(2) the amount of interest which, in accordance with the
expressed terms of this Agreement, would otherwise be
payable to that person on its share of that Advance
for its first Interest Period or (as the case may be)
on the relevant amount so received or recovered for
the remainder of the relevant Interest Period.
(C) Currency Indemnity: (1) Any amount received or recovered by the Agent, any
Arranger or any Bank in respect of any sum expressed to be due to it from the
Borrower 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 the Borrower or otherwise, shall only
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46
constitute a discharge to the Borrower 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, the Borrower shall indemnify it against any loss sustained
by it as a result. In any event, the Borrower shall indemnify the recipient
against the cost of making any such purchase. For the purpose of this sub-Clause
(C), it will be sufficient for the recipient to demonstrate that it would have
suffered a loss had an actual exchange or purchase been made.
(D) Indemnities Separate: Each of the indemnities in this
Agreement 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.
20. THE AGENT AND ARRANGERS
(A) Appointment of Agent: Each Bank irrevocably appoints the
Agent to act as its agent for the purpose of the Financing Documents and
authorises the Agent to take such action and exercise such rights, powers and
discretions as are specifically delegated to the Agent by the Financing
Documents and such other action, rights, powers and discretions as are
reasonably incidental. However, the Agent may not begin any legal action or
proceeding in the name of a Bank without its consent. The relationship between
the Agent and the Banks is of agent and principal only. The Agent shall not be a
trustee for any Bank, nor an agent or trustee for the Borrower, under or in
relation to the Financing Documents.
(B) Agent's Duties: The Agent shall:-
(1) promptly send to each Bank details of each written
communication received by it from the Borrower or any
Shareholder under the Financing Documents, except
that details of any written communication relating to
a particular Bank shall be sent to that Bank only;
(2) promptly send to each Bank a copy of any legal
opinion delivered under this Agreement and of any
document or information received by it under Clause 4
or 15;
(3) subject to the other provisions of this Clause, act
in accordance with any instructions from the Majority
Banks or, if so instructed by the Majority Banks,
refrain from exercising a right, power or discretion
vested in it under the Financing Documents; and
(4) have only those duties, obligations and
responsibilities expressly specified in the Financing
Documents.
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(C) Agent's Rights: The Agent may:-
(1) perform any of its duties, obligations and
responsibilities under the Financing Documents by or
through its personnel or agents;
(2) refrain from exercising any right, power or
discretion vested in it under the Financing Documents
until it has received instructions from the Majority
Banks as to whether (and, if it is to be, the way in
which) it is to be exercised and shall in all cases
be fully protected when acting, or (if so instructed)
refraining from acting, in accordance with
instructions from the Majority Banks;
(3) treat the Lending Bank which makes available any
share of an Advance as the person entitled to
repayment of that share unless all or part of it has
been transferred (or the Agent has received a notice
of the assignment of all or part of it) in accordance
with Clause 24(C); and may act on any such transfer
or notice until it is superseded by a further
transfer or notice;
(4) refrain from doing anything which would or might in
its opinion be contrary to any law or any directive
of any agency of any state or otherwise render it
liable to any person and may do anything which is in
its opinion necessary to comply with any such law or
directive;
(5) assume that no Event of Default or Potential Event of
Default has occurred unless an officer of the Agent,
while active on the account of the Borrower or any
Shareholder, acquires actual knowledge to the
contrary; and
(6) refrain from taking any step (or further step) to
protect or enforce the rights of any person under the
Financing Documents until it has been indemnified (or
received confirmation that it will be so indemnified)
and/or secured to its satisfaction against any and
all costs, losses, expenses or liabilities (including
legal fees) which it would or might sustain or incur
as a result.
(D) Rights of the Agent and Arrangers: Each of the Agent and the
Arrangers may:-
(1) rely on any communication, certificate, legal opinion
or other document believed by it to be genuine and
assume that any person notified to it by the Borrower
or any Shareholder as duly authorised to take any
action contemplated by the Financing Documents
remains so authorised until it has received notice to
the contrary from the Borrower or such Shareholder
(as the case may be);
(2) rely as to any matter of fact which might reasonably
be expected to be within the knowledge of the
Borrower or any Shareholder on a statement by or on
behalf of the Borrower or
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48
such Shareholder (as the case may be);
(3) obtain and pay for such legal or other expert advice
or services as may to it seem necessary or desirable
and rely on any such advice;
(4) retain for its own benefit and without liability to
account any fee or other sum receivable by it for its
own account; and
(5) accept deposits from, lend money to, provide any
advisory or other services to or engage in any kind
of banking or other business with any party to the
Financing Documents or any subsidiary or any
associated company of any such party (and, in each
case, may do so without liability to account).
(E) Exoneration of Agent and Arrangers: Neither the Agent nor the
Arrangers nor any of their respective personnel or agents shall be:-
(1) responsible for the adequacy, accuracy, completeness
or reasonableness of any representation, warranty,
statement, projection, assumption or information in
the Financing Documents or any notice or other
document delivered under or in connection with the
Financing Documents;
(2) responsible for the execution, delivery, validity,
legality, adequacy, enforceability or admissibility
in evidence of the Financing Documents or any such
notice or other document;
(3) obliged to enquire as to the occurrence or
continuation of an Event of Default or Potential
Event of Default; or
(4) liable for anything done or not done by it or any of
them under or in connection with the Financing
Documents save in the case of its or their own gross
negligence or wilful misconduct.
The Arrangers shall not have any duty, obligation or responsibility under or in
connection with the Financing Documents.
For the purposes of this Clause, the Agent shall not be treated as having actual
knowledge of any matter of which any shareholder of the Agent or any of its
holding companies, subsidiaries or associated companies or the corporate finance
department or any other division outside the department, division or team
directly responsible for the management of the Commitments may become aware in
the context of lending, corporate finance or advisory activities from time to
time undertaken by the Agent for the Borrower.
(F) Agent as Bank: The Agent shall have the same rights and
powers with respect to its Commitments (if any) and its Outstandings (if any) as
any other Bank and may exercise those rights and powers as if it were not also
acting as Agent.
(G) Non-Reliance on Agent and Arrangers: Each Bank confirms that
it has itself been, and will at all times continue to be, solely responsible for
making its own independent investigation and appraisal of the business,
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49
operations, financial condition, prospects, creditworthiness, status and affairs
of the Borrower, the Shareholders and their respective subsidiaries and has not
relied, and will not at any time rely, on the Agent, any Arranger and/or any
other Bank:-
(1) to provide it with any information relating to the
business, operations, financial condition, prospects,
creditworthiness, status or affairs of the Borrower
or any other person, whether coming into its
possession before or after the issue of the EDB
Guarantee or the making of any Advance (except, in
the case of the Agent, as stated in sub-Clause (B));
or
(2) to check or enquire into the adequacy, accuracy,
completeness or reasonableness of any representation,
warranty, statement, projection, assumption or
information at any time provided by or on behalf of
the Borrower, any Shareholder or any other person
under or in connection with the Financing Documents
(whether or not such information has been or is at
any time circulated to it by the Agent and/or any
Arranger); or
(3) to assess or keep under review the business,
operations, financial condition, prospects,
creditworthiness, status or affairs of the Borrower,
any Shareholder or any other person.
(H) Indemnity to Agent: To the extent that the Borrower does not
do so on demand or is not obliged to do so, each Bank shall on demand indemnify
the Agent in the proportion borne by its Outstandings to all the Outstandings at
the relevant time (or, if there are then no Outstandings, in the proportion
borne by its Commitment to the total Commitments) against any cost, expense or
liability mentioned in Clause 22 or sustained or incurred by the Agent in
complying with any instructions from the Majority Banks or otherwise sustained
or incurred by it in connection with the Financing Documents or its duties,
obligations and responsibilities under the Financing Documents except to the
extent that they are sustained or incurred as a result of the negligence or
wilful misconduct of the Agent or any of its personnel or agents.
(I) Resignation of Agent: Notwithstanding the irrevocable
appointments in sub-Clause (A), the Agent may resign at any time (after
consultation with the Borrower) if it gives at least 30 days' notice to the
Borrower and the Banks. However, no resignation shall be effective until the
successor has been appointed and accepted its appointment in accordance with
this sub-Clause (I). The Majority Banks may appoint a successor to the resigning
Agent but, if the successor has not been so appointed and accepted its
appointment within 15 days after the date of the notice of resignation, the
resigning Agent may appoint a successor Agent, which must be a reputable and
experienced bank or financial institution with an office in Singapore. Any
appointment of a successor must be in writing, signed by the person(s)
appointing that successor and delivered to that successor. Any acceptance of
such appointment must be in writing, signed by the person appointed and
delivered to the person(s) appointing that successor. The other parties to this
Agreement shall be promptly informed of the acceptance by a successor Agent.
Upon the successor accepting its appointment, the resigning Agent shall be
automatically discharged from any further obligation under this Agreement and
its successor and each of the other parties to this Agreement shall have the
same rights and obligations among themselves as they would have had if the
successor had been the original Agent party to this Agreement. The resigning
Agent shall provide its successor with
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(or with copies of) such records as its successor requires to carry out its
duties under this Agreement.
(J) Transfer Notice: The Borrower, the Arrangers and each Bank
(except for the Lending Bank and the New Lending Bank seeking the relevant
transfer in accordance with Clause 24(C)) irrevocably authorise the Agent to
sign each Novation Notice on their behalf.
21. SET-OFF AND PRO RATA SHARING
(A) Set-Off: The Borrower authorises any other party to this
Agreement to apply (without prior notice) any credit balance (whether or not
then due) to which it is at any time beneficially entitled on any account at,
any sum held to its order by and/or any liability of, any office of that party
in or towards satisfaction of any sum then due from it to that party under this
Agreement and unpaid and, for that purpose, to convert one currency into another
(but so that nothing in this sub-Clause (A) shall be effective to create a
charge). No party shall be obliged to exercise any of its rights under this
sub-Clause (A), which shall be without prejudice and in addition to any right of
set-off, combination of accounts, lien or other right to which it is at any time
otherwise entitled (whether by operation of law, contract or otherwise).
(B) Pro Rata Sharing: If at any time the proportion received or
recovered (whether by direct payment, by exercise of any right of set-off,
combination of accounts or lien, or otherwise) by any Bank in respect of the
total sum which has become due to it from the Borrower under this Agreement
before that time exceeds the proportion received or recovered by the Bank(s)
receiving or recovering the smallest proportion (if any), then:-
(1) within two Business Days after receiving a request
from the Agent, that Bank shall pay to the Agent an
amount equal to the excess;
(2) the Agent shall distribute that payment as if it were
paid by the Borrower; and
(3) as between the Borrower and the Banks, that excess
amount shall be treated as having been paid to the
Banks to which (and in the proportions in which) it
is distributed under paragraph (2), rather than as
having been paid to that Bank.
Within two Business Days after any Bank receives or recovers any such sum
otherwise than by payment through the Agent, that Bank shall notify the Agent of
the amount and currency so received or recovered, how it was received or
recovered and whether it represents principal, interest or other sums. If all or
part of any amount so received or recovered by that Bank has to be refunded by
it (with or without interest), each Bank to whom any part of that amount has
been distributed shall (within two Business Days after receiving a request from
that Bank) in turn pay to that Bank its proportionate share of the amount to be
refunded and of any interest required to be paid by that Bank on that amount in
respect of all or any part of the period from the date of the relevant
distribution to the date of that payment to that Bank.
Any amount received or recovered by a Bank under a novation, assignment,
sub-participation (or the like) shall be ignored for the purpose of this
sub-Clause (B). Furthermore, a Bank shall not be obliged to share any amount
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51
which it has received or recovered as a result of taking legal proceedings with
any other Bank which had an opportunity to participate in those legal
proceedings but did not do so and did not take separate legal proceedings.
This sub-Clause (B) shall apply, with any necessary modifications, to any amount
set-off under sub-Clause (A) by any party to this Agreement in respect of any
sum due to any other party under this Agreement.
22. EXPENSES AND STAMP DUTY
Whether or not the EDB Guarantee is issued or any Advance is
made under this Agreement, 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 and/or the
Arrangers in connection with the preparation,
negotiation or entry into of the Financing Documents
and/or any amendment of, supplement to or waiver in
respect of the Financing Documents;
(2) on demand, all costs and expenses (including legal
fees on a full indemnity basis all goods and
services, valued added and other duties or taxes
payable on such costs and expenses) reasonably
incurred by the Agent, the Arrangers or any Bank in
protecting or enforcing any rights under the
Financing Documents and/or any such amendment,
supplement or waiver; and
(3) promptly, and in any event before any interest or
penalty becomes payable, any goods and services,
value added, stamp, documentary, registration or
similar duty or tax payable in connection with the
entry into, enforcement or admissibility in evidence
of the Financing Documents and/or any such amendment,
supplement or waiver, and shall indemnify the Agent,
the Arrangers and the Banks against any liability
with respect to or resulting from any delay in paying
or omission to pay any such duty or tax.
23. CALCULATIONS AND EVIDENCE
(A) Basis of Calculation: All interest (including default
interest) and commitment fee shall accrue from day to day and shall be
calculated on the basis of a year of 360 days and the actual number of days
elapsed.
(B) Loan Accounts: The entries made in the accounts maintained by
each Bank in accordance with its usual practice shall be prima facie evidence of
the existence and amounts of the obligations of the Borrower recorded in them.
(C) Certificate Conclusive: A certificate by the Agent, any
Arranger or any Lending Bank as to any sum payable to it under this Agreement,
and any other certificate, determination, notification, opinion or the like of
the Agent, any Arranger, any Bank or the Majority Banks provided for in this
Agreement, shall be conclusive save for manifest error.
24. BENEFIT OF AGREEMENT
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(A) Benefit and Burden of Agreement: This Agreement shall benefit
and be binding on the parties, any New Lending Bank in respect of which a
Transfer Notice becomes effective in accordance with sub-Clause (C), their
respective assignees and their respective successors. Any reference in this
Agreement to any party shall be construed accordingly.
(B) Borrower: The Borrower may not assign or transfer all or part
of its rights or obligations under this Agreement.
(C) Banks: (1) Any Lending Bank may at any time transfer all or
part of its Outstandings or all or part of its Term Commitment to any person
without the consent of any party (but such Lending Bank shall give to the
Borrower prior notice of such transfer). Any such transfer shall be made by
delivering to the Agent a duly completed and executed Transfer Notice. On
receipt of such a notice, the Agent shall countersign it for and on behalf of
itself and the other parties to this Agreement and, subject to the terms of that
Transfer Notice:-
(a) to the extent that in that Transfer Notice the
relevant Lending Bank seeks to novate its
Outstandings and/or its Term Commitment, the Borrower
and that Lending Bank shall each be released from
further obligations to each other and their
respective rights against each other shall be
cancelled (such rights and obligations being referred
to as "discharged rights and obligations");
(b) the Borrower and the relevant New Lending Bank shall
each assume new obligations towards each other and/or
acquire new rights against each other which differ
from the discharged rights and obligations only
insofar as the Borrower and that New Lending Bank
have assumed and acquired the same in place of the
Borrower and that Lending Bank; and
(c) the New Lending Bank and the other parties to this
Agreement (other than the Borrower) shall acquire the
same rights and assume the same obligations between
themselves as they would have acquired and assumed
had that New Lending Bank been an original party to
this Agreement as a Lending Bank with the rights
and/or obligations acquired or assumed by it as a
result of that novation (and, to that extent, the
original Lending Bank and those other parties shall
each be released from further obligations to each
other).
(2) On the date on which a transfer takes effect pursuant to
paragraph (1), the New Lending Bank in respect of such transfer shall pay to the
Agent for its own account a transfer fee of S$500. If any New Lending Bank fails
to pay any transfer fee payable by it under this paragraph (2) on its due date,
the Agent may at any time deduct an amount equal to such fee from any moneys
from time to time held by the Agent for account of such New Lending Bank.
(3) Any Bank may at any time assign all or part of its
Outstandings to any person without the consent of any party (but such Bank shall
give to the Borrower prior notice of such assignment).
(4) The Borrower shall not be liable for any costs or expenses
which
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may be incurred in connection with any assignment or transfer of the
Outstandings or the Term Commitments.
(D) Disclosure of Information: The Agent, any Arranger 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 or any other person as it may think fit and may
disclose to any other person such information about the Borrower with the prior
consent in writing of the Borrower (Provided that, at any time and from time to
time after the making of a declaration under Clause 17(B), (1) no such consent
will be required for any such disclosure and (2) the Agent, the relevant
Arranger or the relevant Bank making any such disclosure shall, if practicable,
consult with the Borrower prior to making any such disclosure and shall consider
in good faith any request from the Borrower to the Agent, such Arranger or such
Bank not to make any such disclosure or to delay making any such disclosure).
(E) Limitation on Certain Obligations of Borrower: If, at the
time of any assignment or transfer by a Lending Bank, circumstances exist which
would oblige the Borrower to pay to the New Lending Bank under Clause 11(B) or
12(B) any sum in excess of the sum (if any) which it would have been obliged to
pay to that Lending Bank under the relevant Clause in the absence of that
assignment or transfer, the Borrower shall not be obliged to pay that excess.
25. REMEDIES, WAIVERS, AMENDMENTS AND CONSENTS
(A) No Implied Waivers: No failure on the part of the Agent, any
Arranger or any Bank 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).
(B) Amendments, Waivers and Consents: Any provision of this
Agreement may be amended or supplemented only if the Borrower and the Majority
Banks so agree in writing and any Event of Default, Potential Event of Default,
provision or breach of any provision of this Agreement may be waived before or
after it occurs only if the Majority Banks so agree in writing but:-
(1) an amendment, supplement or waiver which puts one or
more Banks in a better or worse position than one or
more other Banks or changes or relates to (a) the
amount of the Available Facility or any Bank's
Commitment or Available Term Commitment, (b) the
Commitment Termination Date, (c) the amount or
currency of the Advances, (d) the amount or date of
any repayment installment, (e) the length of Interest
Periods, (f) the rate or dates of payment of
interest, (g) the amount or date(s) of payment of any
fee payable under Clause 10, (h) the currency of any
payment, (i) the definition of "Majority Banks", (j)
this sub-Clause (B) or (k) any Clause which by its
terms requires the consent of all the Banks, shall
require the agreement of all the Banks and (in the
case of an amendment or supplement) the Borrower
also; and
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(2) an amendment, supplement or waiver which changes or
relates to the rights and/or obligations of the Agent
or any Arranger shall require its agreement also.
Any consent by the Agent, any Arranger, any Lending Bank or the Majority Banks
under any provision of this Agreement must also be in writing. Any such waiver
or consent may be given subject to any conditions thought fit by the person
giving it and shall be effective only in the instance and for the purpose for
which it is given.
26. COMMUNICATIONS
(A) Addresses: Each communication under this Agreement shall be
made by fax, telex or otherwise in writing. Each communication or document to be
delivered to any party under this Agreement shall be sent to that party at the
fax number, telex number or address, and marked for the attention of the person
(if any), from time to time designated by that party to the Agent (or, in the
case of the Agent, by it to each other party) for the purpose of this Agreement.
The initial fax number, telex number, address and person (if any) so designated
by each party are set out under its name at the end of this Agreement. Any
communication or document from or to the Borrower under this Agreement shall be
sent to, by or through the Agent.
(B) Deemed Delivery: Any communication from the Borrower shall be
irrevocable, and shall not be effective until received by the Agent. Any other
communication from one party to another party shall be deemed to be received by
such other party (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) or within two
days after being sent by prepaid post addressed to it at that address.
27. 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.
28. NATURE OF RIGHTS AND OBLIGATIONS
(A) Liability Several: The liability of the Banks is several. No
party to this Agreement shall be responsible for the obligations of any other
party. The failure of a Bank to perform its obligations shall not release any
other party from its obligations.
(B) Rights Several: The rights of the Banks are also several. The
amount at any time owing by the Borrower to any party under this Agreement shall
be a separate and independent debt from the amount owing to any other party.
Each party shall have the right to protect and enforce its rights arising out of
this Agreement and it shall not be necessary for any Arranger, the Agent or any
Bank to be joined as an additional party in any proceedings for this purpose.
29. GOVERNING LAW
This Agreement shall be governed by, and construed in
accordance with, the laws of Singapore.
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S C H E D U L E 1
BANKS AND COMMITMENTS
Part A - Guarantor Banks and Guarantee Commitments
Guarantor Bank Guarantee Commitment
-------------- --------------------
ABN AMRO Bank, N.V.,
Singapore Branch S$37,400,000
Bayerische Landesbank Girozentrale,
Singapore Branch S$37,400,000
Citibank, N.A.,
Singapore Branch S$37,400,000
Overseas Union Bank Limited S$40,700,000
The Sumitomo Bank, Limited,
Singapore Branch S$37,400,000
The Sanwa Bank, Limited,
Singapore Branch S$16,500,000
The Bank of Tokyo-Mitsubishi, Ltd.,
Singapore Branch S$15,000,000
Den Danske Bank Aktieselskab,
Singapore Branch S$15,000,000
------------
S$236,800,000
=============
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Part B - Lending Banks and Term Commitments
Lending Bank Term Commitment
------------ ---------------
ABN AMRO Bank, N.V.,
Singapore Branch US$24,000,000
Bayerische Landesbank Girozentrale,
Singapore Branch US$24,000,000
Citibank, N.A.,
Singapore Branch US$24,000,000
Overseas Union Bank Limited US$28,400,000
The Sumitomo Bank, Limited,
Singapore Branch US$24,000,000
The Bank of Tokyo-Mitsubishi, Ltd.,
Singapore Branch US$8,800,000
Den Danske Bank Aktieselskab,
Singapore Branch US$10,000,000
--------------
US$143,200,000
==============
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S C H E D U L E 2
FORM OF TRANSFER NOTICE
To: ABN AMRO Bank N.V.,
Singapore Branch,
00, Xxxxxx Xxxxxx,
Xxxxxxxxx 000000.
Attention: [name and title of relevant person]
Chartered Silicon Partners Pte Ltd
Credit Agreement
dated 12th March, 1998
1. This Transfer Notice relates to the above Credit Agreement.
Terms defined in the Credit Agreement have the same meaning in this Transfer
Notice.
2. The undersigned Existing Lending Bank confirms that, to the
extent details appear below under the heading "Rights and/or Obligations to be
Transferred", those details accurately summarise the rights and/or obligations
which are to be novated and which are, upon delivery of this Transfer Notice to
the Agent (but subject to 3 below), cancelled and discharged in accordance with
Clause 24(C) of the Credit Agreement.
3. The undersigned New Lending Bank agrees that it assumes and
acquires new rights and/or obligations in accordance with Clause 24(C) of the
Credit Agreement on and with effect from [ ], 19[ ] [subject only to the Agent's
having received tested telex confirmation from [ ] that the sum of [ ] has been
credited to the Existing Lending Bank's account with [ ] for value that date].
4. The undersigned New Lending Bank:-
(1) confirms that, until further notice, its lending
office and details for communications are as set out
below;
(2) agrees to perform and comply with the obligations
expressed to be imposed on it by Clause 24(C) of the
Credit Agreement as a result of this Transfer Notice
taking effect; and
(3) if not already a Lending Bank, appoints the Agent to
act as its agent as provided in the Credit Agreement
and agrees to be bound by the Credit Agreement
(including, but not limited to, Clause 20 and
particularly, but not limited to, Clauses 20(E), (G)
and (H)).
5. The above confirmations and agreements are given to and for
the benefit of and made with each of the other parties to the Credit Agreement.
6. This Transfer Notice shall be governed by, and construed in
accordance with, the laws of Singapore.
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Existing Lending Bank
Name:
By:
Authorised Signatory
Date: 19
New Lending Bank
Name:
By:
Authorised Signatory
Date: 19
Lending Office
Address:
Fax Number:
Telex Number:
Attention:
Rights and/or Obligations to be Transferred
1. Existing Lending Bank's Term Commitment to be novated:
2. Existing Lending Bank's Outstandings to be novated:
Agent
Agreed for and on behalf of itself as Agent and the other parties to the Credit
Agreement.
Name:
By:
Authorised Signatory
Date: 19
62
59
S C H E D U L E 3
CONDITIONS PRECEDENT
1. A certified copy of each of (1) the certificate of
incorporation of the Borrower, (2) the Memorandum and Articles of Association of
the Borrower, (3) the certificate of incorporation (or equivalent) of each
Shareholder and (4) the Memorandum and Articles of Association (or equivalent)
of each Shareholder.
2. A copy, certified true by an authorised officer of the
Borrower as being in full force and effect on the date thereof, of:-
(1) all actions required to be taken by the Borrower (a)
authorising the entry into of the Financing Documents
and (b) authorising appropriate persons to execute
and deliver the Financing Documents on behalf of the
Borrower and to take any action contemplated in the
Financing Documents; and
(2) all necessary consents required by the Borrower for
the execution, delivery and performance of the
Financing Documents or, if no such consents are
necessary, a certificate to that effect from a person
duly authorised by the Borrower so to certify.
3. Specimen signatures of the respective persons referred to in
paragraph 2 above, duly certified, together with certificates of incumbency,
also duly certified, in respect of each such person.
4. A copy, certified true by an authorised officer of each
Shareholder as being in full force and effect on the date thereof, of:-
(1) all actions required to be taken by that Shareholder
(a) authorising the entry into of the Shareholders
Undertaking and (b) authorising appropriate persons
to execute and deliver the Shareholders Undertaking
on behalf of that Shareholder and to take any action
contemplated in the Shareholders Undertaking; and
(2) all necessary consents required by that Shareholder
for the execution, delivery and performance of the
Shareholders Undertaking or, if no such consents are
necessary, a certificate to that effect from a person
duly authorised by that Shareholder so to certify.
5. Specimen signatures of the respective persons referred to in
paragraph 4 above, duly certified, together with certificates of incumbency,
also duly certified, in respect of each such person.
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60
6. A certified copy of the following consents for the Project:-
(1) the permission to carry out earthworks from the Urban
Renewal Authority; and
(2) the permit for the commencement of piling, the notice
of approval - sub-structure, the notice of approval -
super-structure and the permit for commencement of
building work from the Building Control Department.
7. The Shareholders Undertaking duly executed by the
Shareholders, the Borrower and the Agent.
8. Evidence of the acceptance by the process agent appointed in
Clause 14(E) of the Shareholders Undertaking of its appointment as such for the
purpose of the Shareholders Undertaking.
9. Legal opinions dated on or after the date of this Agreement
from:-
(1) Xxxxx Dutilh, legal advisers in the Netherlands to
the Agent, the Arrangers and the Banks, as to such
matters of the laws of the Netherlands relevant to
the Shareholders Undertaking as the Agent may
request; and
(2) Xxxxx & Xxxxxxxx, legal advisers in Singapore to the
Agent, the Arrangers and the Banks, as to such
matters of Singapore law relevant to the Financing
Documents as the Agent may request.
10. The completed Drawdown Schedule (the particulars of which must
be acceptable to the Agent).
11. A certified copy of the Joint Venture Agreement.
12. A certified copy of the letter of undertaking dated 13th
March, 1997 issued by HP to CSM and EDBI for the obligations of HPE under the
Joint Venture Agreement.
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61
S C H E D U L E 4
FORM OF REQUEST FOR ISSUE OF EDB GUARANTEE
To: ABN AMRO Bank N.V.,
Singapore Branch,
00, Xxxxxx Xxxxxx,
Xxxxxxxxx 000000.
For the attention of: [name and title of relevant person]
Dear Sirs,
Chartered Silicon Partners Pte Ltd
Credit Agreement
dated 12th March, 1998
We refer to the above Credit Agreement between (1) ourselves,
as Borrower, (2) yourselves, Bayerische Landesbank Girozentrale, Singapore
Branch, Citibank, N.A., Overseas Union Bank Limited and The Sumitomo Bank,
Limited, Singapore Branch, as Arrangers, (3) the Guarantor Banks named therein,
as Guarantor Banks, (4) the Lending Banks named therein, as Lending Banks, and
(5) yourselves, as Agent. Terms defined in the Credit Agreement have the same
meaning in this notice.
We give you notice that we request the EDB Guarantee to be
issued by the Guarantor Banks under the Credit Agreement as follows:-
(1) Amount: S$
(2) Issue Date: , 19 (or, if that is not a
Singapore Business Day, the next
succeeding Singapore Business Day)
(3) Expiry Date:
We confirm that no Event of Default or Potential Event of
Default has occurred or will occur as a result of the issue of the EDB Guarantee
we represent and warrant that the representations and warranties contained in
Clause 14 of the Credit Agreement have been complied with and would be correct
in all respects if repeated today by reference to the circumstances now existing
and we confirm that all the undertakings on our part contained in Clauses 15 and
16 of the Credit Agreement have been fully performed and observed by us.
Dated , 1998.
Yours faithfully,
For and on behalf of
CHARTERED SILICON PARTNERS PTE LTD
By: ______________________________
Name: ____________________________
Title: ___________________________
00
00
X X X X X U L E 5
FORM OF REQUEST FOR ADVANCE
To: ABN AMRO Bank N.V.,
Singapore Branch,
00, Xxxxxx Xxxxxx,
Xxxxxxxxx 000000.
For the attention of: [name and title of relevant person]
Dear Sirs,
Chartered Silicon Partners Pte Ltd
Credit Agreement
dated 12th March, 1998
We refer to the above Credit Agreement between (1) ourselves,
as Borrower, (2) yourselves, Bayerische Landesbank Girozentrale, Singapore
Branch, Citibank, N.A., Overseas Union Bank Limited and The Sumitomo Bank,
Limited, Singapore Branch, as Arrangers, (3) the Guarantor Banks named therein,
as Guarantor Banks, (4) the Lending Banks named therein, as Lending Banks, and
(5) yourselves, as Agent. Terms defined in the Credit Agreement have the same
meaning in this notice.
We give you notice that we request an Advance to be made to us
under the Credit Agreement as follows:-
(1) Amount: US$
(2) Date of Advance: , 19 (or, if that is
not a Business Day, the next
succeeding Business Day)
We confirm that no Event of Default or Potential Event of
Default has occurred or will occur as a result of the making of the above
Advance, we represent and warrant that the representations and warranties
contained in Clause 14 of the Credit Agreement have been complied with and would
be correct in all respects if repeated today by reference to the circumstances
now existing and we confirm that all the undertakings on our part contained in
Clauses 15 and 16 of the Credit Agreement have been fully performed and observed
by us.
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63
You are requested to make the proceeds of this Advance
available to us by credit to our account with [details of bank account] in New
York City.
Dated , 19 .
Yours faithfully,
For and on behalf of
CHARTERED SILICON PARTNERS PTE LTD
By: ______________________________
Name: ____________________________
Title: ___________________________
00
00
X X X X X U L E 6
FORM OF DRAWDOWN SCHEDULE
(1) (2) (3)
Utilisation Period Available EDB Amount Available Term Amount
------------------ -------------------- ---------------------
(1) 1st July, 1998 to S$0
US$18,750,000
30th September, 1998
(2) 1st October, 1998 to S$10,000,000 US$53,130,000
31st December, 1998
(3) 1st January, 1999 to S$20,000,000 US$18,750,000
31st March, 1999
(4) 1st April, 1999 to S$65,000,000 US$31,250,000
30th June, 1999
(5) 1st July, 1999 to S$110,000,000
US$21,320,000
30th September, 1999
(6) 1st October, 1999 to S$31,800,000 US$0
31st December, 1999
------------- --------------
S$236,800,000 US$143,200,000
============= ==============
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65
A P P E N D I X A
FORM OF EDB GUARANTEE
To: Economic Development Board
1. We refer to an EDB Loan Agreement (the "EDB Loan Agreement")
dated [ ], 1998 made between yourselves and Chartered Silicon Partners Pte Ltd
(the "Borrower") pursuant to which you have agreed to make available to the
Borrower a loan facility in an aggregate amount not exceeding S$450,000,000.
2. In consideration of your agreeing subject, inter alia, to the
delivery of this Guarantee to enter into and accept liabilities under the EDB
Loan Agreement and subject to the due observance of the provisions of Clause 5
of the EDB Loan Agreement, we, the Guarantor Banks whose names appear in the
signature pages hereto unconditionally and irrevocably:-
(1) guarantee the payment by the Borrower of each amount
which may from time to time fall due to yourselves
from the Borrower in respect of:-
(a) payments of principal advanced under the EDB
Loan Agreement up to a maximum aggregate
amount at any time equal to the Maximum
Principal Liability (as defined below) at
that time;
(b) payments of interest under Clause 7.2 of the
EDB Loan Agreement but not including default
interest under Clause 7.5 of the EDB Loan
Agreement, up to a maximum aggregate amount
at any time being the lesser of six months
interest and the Maximum Interest Liability
(as defined below) at that time; and
(c) payments of default interest under Clause
7.5 of the EDB Loan Agreement, up to a
maximum aggregate amount at any time equal
to the Maximum Default Interest Liability
(as defined below) at that time,
and agree to pay to yourselves, within three Business
Days (as such term is defined in the EDB Loan
Agreement) of demand by yourselves, unless such
demand is made on a day which is not a business day
or after 12.00 noon on any Business Day, in which
event payment shall be made within three Business
Days from the next immediately succeeding Business
Day:-
(i) any and every sum or sums of money which the
Borrower shall at any time be liable to pay
to yourselves under or pursuant to the EDB
Loan Agreement by way of principal and shall
fail to pay on the due date therein provided
up to the Maximum Principal Liability
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66
at that time;
(ii) any and every sum or sums which the Borrower
shall at any time be liable to pay to
yourselves under or pursuant to Clause 7.2
of the EDB Loan Agreement by way of interest
(but excluding default interest under Clause
7.5 thereof), and shall fail to pay on the
due date therein provided up to the lesser
of six months interest and the Maximum
Interest Liability at that time; and
(iii) any and every sum or sums which the Borrower
shall at any time be liable to pay to
yourselves under or pursuant to the EDB Loan
Agreement by way of default interest under
Clause 7.5 thereof, and shall fail to pay on
the due date therein provided up to the
Maximum Default Interest Liability at that
time; and
(2) agree as a primary obligation to indemnify yourselves
on demand from and against any loss, cost or expense
incurred by yourselves as a result of the obligations
guaranteed pursuant hereto being or becoming void,
voidable, unenforceable or ineffective for any reason
whatsoever, whether or not known to yourselves, the
amount of such loss being the amount which you would
otherwise have been entitled to recover from
ourselves.
3. The liability of each of us in respect of any sum at any time
due to you hereunder is several and shall be limited to the fraction of such sum
which appears opposite our respective names in Schedule 1 hereto.
4. The total amount at any time payable by us hereunder shall not
exceed the Maximum Aggregate Liability (as defined below) at that time.
Notwithstanding the foregoing, the total amount at any time payable by us
hereunder in respect of interest under Clause 7.2 of the EDB Loan Agreement
shall not exceed the lesser of six months interest and the Maximum Interest
Liability at that time, the total amount at any time payable by us hereunder in
respect of default interest under Clause 7.5 of the EDB Loan Agreement shall not
exceed the Maximum Default Interest Liability at that time and the total amount
at any time payable by us hereunder in respect of principal shall not exceed the
Maximum Principal Liability at that time, Provided that this Guarantee shall not
extend to any advances made by yourselves to the Borrower at any time after you
have received notice from ABN AMRO Bank N.V., Singapore Branch (the "Agent") of
the occurrence of an Event of Default (as defined in the Credit Agreement dated
12th March, 1998 made between (1) the Borrower, as borrower, (2) the Arrangers
named therein, as arrangers, (3) ourselves, as guarantor banks, (4) the Lending
Banks named therein, as lending banks, and (5) the Agent, as agent).
5. In this Guarantee:-
"Maximum Aggregate Liability" means, at any time during a
Relevant Period, the amount specified against that Relevant
Period in column (2) of Schedule 2 hereto;
"Maximum Interest Liability" means, at any time during a
Relevant
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67
Period, the amount specified against that Relevant Period in
column (3) of Schedule 2 hereto;
"Maximum Default Interest Liability" means, at any time during
a Relevant Period, the amount specified against that Relevant
Period in column (4) of Schedule 2 hereto;
"Maximum Principal Liability" means, at any time during a
Relevant Period, the amount specified against that Relevant
Period in column (5) of Schedule 2 hereto; and
"Relevant Periods" means each of the periods specified as a
Relevant Period in column (1) of Schedule 2 hereto.
6. We each represent and warrant that we have full power to enter
into this Guarantee and have taken all necessary steps to authorise its
execution on our behalf and have obtained all necessary governmental and other
consents required to enable us each to perform our obligations hereunder and
that this Guarantee is legal, valid and binding on each of us.
7. This Guarantee shall be a continuing security and accordingly
(1) shall extend to cover the balance of principal due at any time from the
Borrower to you and (2) shall not be discharged by any intermediate payment or
settlement of account between the Borrower and yourselves.
8. (1) If any sum due and payable by any of us hereunder or under
any order or judgment given or made in relation hereto has to be converted from
the currency (the "First Currency") in which the same is payable hereunder or
under such order or judgment into another currency (the "Second Currency") for
the purpose of (a) making or filing a claim or proof against us whether in our
liquidation or otherwise, (b) obtaining an order or judgment in any court or
other tribunal or (c) enforcing any order or judgment given or made in relation
hereto, that such of us that is so obliged to pay such sum shall indemnify and
hold harmless each of the persons to whom such sum is due and payable from and
against any loss suffered as a result of any discrepancy between (i) the rate of
exchange used for such purpose to convert the sum in question from the First
Currency into the Second Currency and (ii) the rate or rates of exchange at
which such person may in the ordinary course of business purchase the First
Currency with the Second Currency upon receipt by it of a sum paid to it in
satisfaction, in whole or in part, of any such order, judgment, claim or proof.
(2) The foregoing indemnity shall constitute a separate obligation
distinct from our other respective obligations hereunder and shall survive the
giving or making of any order or judgment in relation to all or any of such
other obligations.
9. Each time you make an advance to the Borrower pursuant to the
provisions of the EDB Loan Agreement or receive a repayment or prepayment of
principal thereunder, upon request by the Borrower, you shall notify us in
writing of the principal amount and date of such advance or, as the case may be,
repayment or prepayment, and of the then revised outstanding balance of
principal. We hereby agree that a certificate from yourselves as to the amount
due from the Borrower by way of principal or interest under the EDB Loan
Agreement at the date of such certificate shall, in the absence of manifest
error, be conclusive and binding on us for all purposes and we further agree to
cause the Agent to promptly notify you of the occurrence of any Event of
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68
Default under the Credit Agreement whereby the Advances made thereunder are
declared immediately due and payable.
10. Any demand to be made on us hereunder shall be made by telex
or letter to our agent, ABN AMRO Bank N.V., Singapore Branch (the "Agent"), at
00, Xxxxxx Xxxxxx, Xxxxxxxxx 000000, Telex Number RS 24396 and shall specify
whether such demand is made in respect of principal or interest and, if both,
the respective amounts of such claim and, where such demand is made in respect
of interest, the period in respect of which such claim is made. Such demand
shall also specify, if relevant, the provision of Clause 15.2 pursuant to which
indebtedness under the EDB Loan Agreement was accelerated. You shall be entitled
to make any number of demands on us hereunder.
11. This Guarantee shall remain in full force and effect until
the earlier of (1) the date on which you certify that there is no amount owing,
due or payable by the Borrower to yourselves by way of principal under the EDB
Loan Agreement and no amounts of interest accrued but unpaid, a copy of which
certification shall be sent to the Agent, and (2) 30th June, 2006 or, if such
day is not a Business Day, the immediately preceding Business Day.
12. This Guarantee may be executed by each party hereto on
separate counterparts, each of which shall be binding on such party and all of
which shall constitute one and the same document.
13. This Guarantee shall be governed by, and construed in
accordance with, the laws of Singapore.
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I N W I T N E S S W H E R E O F this Guarantee has been
entered into on __, 1998.
ABN AMRO BANK N.V., SINGAPORE BRANCH,
By: ___________________________
Name: _________________________
Title: ________________________
BAYERISCHE LANDESBANK GIROZENTRALE, SINGAPORE BRANCH
By: ___________________________
Name: _________________________
Title: ________________________
CITIBANK, N.A., SINGAPORE BRANCH,
By: ___________________________
Name: _________________________
Title: ________________________
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OVERSEAS UNION BANK LIMITED,
By: ___________________________
Name: _________________________
Title: ________________________
THE SUMITOMO BANK, LIMITED,
SINGAPORE BRANCH,
By: ___________________________
Name: _________________________
Title: ________________________
THE SANWA BANK, LIMITED, SINGAPORE BRANCH
By: ___________________________
Name: _________________________
Title: ________________________
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THE BANK OF TOKYO-MITSUBISHI, LTD.,
SINGAPORE BRANCH
By: ___________________________
Name: _________________________
Title: ________________________
DEN DANSKE BANK AKTIESELSKAB,
SINGAPORE BRANCH
By: ___________________________
Name: _________________________
Title: ________________________
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SCHEDULE 1
Guarantor Bank Fraction
-------------- --------
(1) ABN Amro Bank N.V.,
Singapore Branch 37.4/236.8
(2) Bayerische Landesbank Girozentrale,
Singapore Branch 37.4/236.8
(3) Citibank, N.A.,
Singapore Branch 37.4/236.8
(4) Overseas Union Bank Limited 40.7/236.8
(5) The Sumitomo Bank, Limited,
Singapore Branch 37.4/236.8
(6) The Sanwa Bank, Limited,
Singapore Branch 16.5/236.8
(7) The Bank of Tokyo-Mitsubishi, Ltd.,
Singapore Branch 15/236.8
(8) Den Danske Bank Aktieselskab,
Singapore Branch 15/236.8
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SCHEDULE 2
============================================================================================================================
Relevant Period Maximum Aggregate Maximum Interest Maximum Default Maximum Principal
Liability Liability Interest Liability Liability
----------------------------------------------------------------------------------------------------------------------------
Date of first advance
under the EDB Loan
Agreement to X* 236,800,000 4,796,023 6,308,774 225,695,203
----------------------------------------------------------------------------------------------------------------------------
X + 1 day
to X + six months 213,366,365 4,556,222 5,684,460 203,125,683
----------------------------------------------------------------------------------------------------------------------------
X + six months + 1 day
to X + 12 months 189,686,366 4,076,620 5,053,583 180,556,163
----------------------------------------------------------------------------------------------------------------------------
X + 12 months + 1 day
to X + 18 months 166,006,365 3,597,017 4,422,705 157,986,643
----------------------------------------------------------------------------------------------------------------------------
X + 18 months + 1 day
to X + 24 months 142,326,366 3,117,415 3,791,828 135,417,123
----------------------------------------------------------------------------------------------------------------------------
X + 24 months + 1 day
to X + 30 months 118,646,367 2,637,813 3,160,951 112,847,603
----------------------------------------------------------------------------------------------------------------------------
X + 30 months + 1 day
to X + 36 months 94,966,366 2,158,210 2,530,073 90,278,083
----------------------------------------------------------------------------------------------------------------------------
X + 36 months + 1 day
to X + 42 months 71,286,367 1,678,608 1,899,196 67,708,563
----------------------------------------------------------------------------------------------------------------------------
X + 42 months + 1 day
to X + 48 months 47,606,367 1,199,006 1,268,318 45,139,043
----------------------------------------------------------------------------------------------------------------------------
X + 48 months + 1 day
to earlier of (X + 54
months and 30th June,
2006) 23,926,368 719,404 637,441 22,569,523
============================================================================================================================
* "X" means the date of the first repayment of principal under the EDB Loan
Agreement (being not later than 31st March, 2002).
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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 Borrower
CHARTERED SILICON PARTNERS PTE LTD
00, Xxxxxxxx Xxxxxxxxxx Xxxx X,
Xxxxxx 0, Xxxxxxxxx 000000.
Fax Number: 0000000
Attention: Legal Department
By: /s/ Tan Xxxx Xxxx Witness: /s/ Xxxx Xxxxxxx
---------------------------- ----------------------------
Name: Tan Xxxx Xxxx Name: Xxxx Xxxxxxx
-------------------------- -------------------------------
Title: Director Address: General Manager
------------------------- ----------------------------
The Arrangers
ABN AMRO BANK N.V.,
SINGAPORE BRANCH
00, Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 24396
Attention: Xx Xxxx Toi Wee/Xx Xxxxxxxx Xxxx
By: /s/ Xxxxx Xxx By: /s/ Goh Xxxxx Xxxxx
---------------------------- ---------------------------------
Name: Xxxxx Xxx Name: Goh Xxxxx Xxxxx
-------------------------- -------------------------------
Title: Country Manager Title: Head, Corporate Banking
------------------------- Division
------------------------------
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00
XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXX,
XXXXXXXXX BRANCH
000, Xxxxx Xxxx, #00-00,
Xxx Xxxxxxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 21445 BAYSIN
Attention: Mr Stefan Hattenkofer/Xx Xx Xxxxx Inn
By: /s/ Xxxxxxxxxxxxx Xxxxx By: /s/ Xx Xxxxx Inn
---------------------------- ---------------------------------
Name: Xxxxxxxxxxxxx Xxxxx Name: Xx Xxxxx Inn
-------------------------- -------------------------------
Title: Exec. V.P./G.M. Title: Asst. V.P., Institutional
------------------------- & Corporate Banking
------------------------------
CITIBANK, N.A., SINGAPORE BRANCH
0, Xxxxxxx Xxx, #00-00,
XXX Xxxxxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 24584 CITBANK
Attention: Xx Xxxx Xxxx/Xx Xxxx Wan Thonh
By: /s/ Chua Xxxx Xxx
-------------------------------
Name: Chua Xxxx Xxx
-----------------------------
Title: Head of Corporate Bank
----------------------------
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OVERSEAS UNION BANK LIMITED
0, Xxxxxxx Xxxxx, 00xx Xxxxx,
XXX Xxxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000/000 0000
Telex Number: RS 23916
Attention: Xx Xxxxxxx Xxxx/Xx Xxxx Xxxx Xxx
By: /s/ Xxxxxxx Xxxx
------------------------------
Name: Xxxxxxx Xxxx
----------------------------
Title: V.P.
---------------------------
THE SUMITOMO BANK, LIMITED,
SINGAPORE BRANCH
0, Xxxxxxx Xxx, #00-00,
XXX Xxxxx Xxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 21656 SUMITBK
Attention: Xx Xxxxxx Xxxxxxx/Mr Kazushige Goto/
Xx Xxxxxx Xxxx
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
----------------------------
Title: Joint General Manager
---------------------------
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Guarantor Banks
ABN-AMRO BANK N.V.,
SINGAPORE BRANCH
00, Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 24396
Attention: Xx Xxxx Toi Wee/Xx Xxxxxxxx Xxxx
By: /s/ Xxxxx Xxx By: /s/ Goh Xxxxx Xxxxx
---------------------------- --------------------------------
Name: Xxxxx Xxx Name: Goh Xxxxx Xxxxx
-------------------------- ------------------------------
Title: Country Manager Title: Head, Corporate Banking
------------------------- Division
-----------------------------
BAYERISCHE LANDESBANK GIROZENTRALE,
SINGAPORE BRANCH
000, Xxxxx Xxxx, #00-00,
Xxx Xxxxxxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 21445 BAYSIN
Attention: Mr Stefan Hattenkofer/Xx Xx Xxxxx Inn
By: /s/ Xxxxxxxxxxxxx Xxxxx By: /s/ Xx Xxxxx Inn
----------------------------- ---------------------------------
Name: Xxxxxxxxxxxxx Xxxxx Name: Xx Xxxxx Inn
--------------------------- -------------------------------
Title: Exec. V.P./G.M. Title: Asst. V.P., Institutional
-------------------------- & Corporate Banking
------------------------------
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CITIBANK, N.A., SINGAPORE BRANCH
0, Xxxxxxx Xxx, #00-00,
XXX Xxxxxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 24584 CITBANK
Attention: Xx Xxxx Xxxx/Xx Xxxx Wan Thonh
By: /s/ Chua Xxxx Xxx
-----------------------------
Name: Chua Xxxx Xxx
---------------------------
Title: Head of Corporate Bank
--------------------------
OVERSEAS UNION BANK LIMITED
0, Xxxxxxx Xxxxx, 00xx Xxxxx,
XXX Xxxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000/538 2449
Telex Number: RS 23916
Attention: Xx Xxxxxxx Xxxx/Xx Xxxx Xxxx Xxx
By: /s/ Xxxxxxx Xxxx
------------------------------
Name: Xxxxxxx Xxxx
----------------------------
Title: V.P.
---------------------------
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00
XXX XXXXXXXX XXXX, XXXXXXX,
XXXXXXXXX BRANCH
0, Xxxxxxx Xxx, #00-00,
XXX Xxxxx Xxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 21656 SUMITBK
Attention: Xx Xxxxxx Xxxxxxx/Mr Kazushige Goto/
Xx Xxxxxx Xxxx
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
----------------------------
Title: Joint General Manager
---------------------------
THE SANWA BANK, LIMITED,
SINGAPORE BRANCH
6, Raffles Quay, #24-01,
Xxxx Xxxxxxx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 28573
Attention: Xx Xxx Soh Wah/Xx Xxx Wee Hian
By: /s/ Masatsugu Shirakura
------------------------------
Name: Masatsugu Shirakura
----------------------------
Title: Deputy General Manager
---------------------------
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THE BANK OF TOKYO-MITSUBISHI, LTD.,
SINGAPORE BRANCH
0, Xxxxxxx Xxxxx, #00-00,
Xxxxxxxx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 24363
Attention: Xx Xxxxxxxx Xxxx (Loan Administration Department)/
Xx Xxx Xxxx Xxxx (Corporate Finance Department)
By: /s/ Gn Xxxxx Xxxxxx
------------------------------
Name: Gn Xxxxx Xxxxxx
----------------------------
Title: Snr. Asst. G.M.
---------------------------
DEN DANSKE BANK AKTIESELSKAB,
SINGAPORE BRANCH
00, Xxxxxxx Xxxxx, #00-00,
Xxxxxxxxx Xxxx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: 28030 DDBSIN
Attention: Mr Jorgen Faenoe/Ms Xxxxxxx Wee
By: /s/ Jorgen Faenoe By: /s/ Xxxxxx Xxxx
----------------------------- ---------------------------------
Name: Jorgen Faenoe Name: Xxxxxx Xxxx
--------------------------- -------------------------------
Title: Manager & Head of Credit Title: Deputy Manager, Corporate
Risk & Management Banking
-------------------------- ------------------------------
84
81
The Lending Banks
ABN-AMRO BANK N.V.,
SINGAPORE BRANCH
00, Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 24396
Attention: Xx Xxxx Toi Wee/Xx Xxxxxxxx Xxxx
By: /s/ Xxxxx Xxx By: /s/ Goh Xxxxx Xxxxx
----------------------------- ---------------------------------
Name: Xxxxx Xxx Name: Goh Xxxxx Xxxxx
--------------------------- -------------------------------
Title: Country Manager Title: Head, Corporate Banking
-------------------------- Division
------------------------------
BAYERISCHE LANDESBANK GIROZENTRALE,
SINGAPORE BRANCH
000, Xxxxx Xxxx, #00-00,
Xxx Xxxxxxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 21445 BAYSIN
Attention: Mr Stefan Hattenkofer/Xx Xx Xxxxx Inn
By: /s/ Xxxxxxxxxxxxx Xxxxx By: /s/ Xx Xxxxx Inn
----------------------------- ---------------------------------
Name: Xxxxxxxxxxxxx Xxxxx Name: Xx Xxxxx Inn
--------------------------- -------------------------------
Title: Exec. V.P./G.M. Title: Asst. V.P., Institutional
--------------------------- & Corporate Banking
------------------------------
85
82
CITIBANK, N.A., SINGAPORE BRANCH
0, Xxxxxxx Xxx, #00-00,
XXX Xxxxxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000/000 0000
Telex Number: RS 24584 CITBANK
Attention: Xx Xxxx Xxxx/Xx Xxxx Wan Thonh
By: /s/ Chua Xxxx Xxx
-----------------------------
Name: Chua Xxxx Xxx
---------------------------
Title: Head of Corporate Bank
--------------------------
OVERSEAS UNION BANK LIMITED
0, Xxxxxxx Xxxxx, 00xx Xxxxx,
XXX Xxxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000/538 2449
Telex Number: RS 23916
Attention: Xx Xxxxxxx Xxxx/Xx Xxxx Xxxx Xxx
By: /s/ Xxxxxxx Xxxx
------------------------------
Name: Xxxxxxx Xxxx
----------------------------
Title: V.P.
---------------------------
86
00
XXX XXXXXXXX XXXX, XXXXXXX,
XXXXXXXXX BRANCH
0, Xxxxxxx Xxx, #00-00,
XXX Xxxxx Xxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 21656 SUMITBK
Attention: Xx Xxxxxx Xxxxxxx/Mr Kazushige Goto/
Xx Xxxxxx Xxxx
By: /s/ Xxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxx
---------------------------
Title: Joint General Manager
--------------------------
THE BANK OF TOKYO-MITSUBISHI, LTD.,
SINGAPORE BRANCH
0, Xxxxxxx Xxxxx, #00-00,
Xxxxxxxx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 24363
Attention: Xx Xxxxxxxx Xxxx (Loan Administration Department)/
Xx Xxx Xxxx Xxxx (Corporate Finance Department)
By: /s/ Gn Xxxxx Xxxxxx
------------------------------
Name: Gn Xxxxx Xxxxxx
----------------------------
Title: Snr. Asst. G.M.
---------------------------
87
00
XXX XXXXXX XXXX XXXXXXXXXXXX,
XXXXXXXXX BRANCH
00, Xxxxxxx Xxxxx, #00-00,
Xxxxxxxxx Xxxx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: 28030 DDBSIN
Attention: Mr Jorgen Faenoe/Ms Xxxxxxx Wee
By: /s/ Jorgen Faenoe By: /s/ Xxxxxx Xxxx
------------------------------ ---------------------------------
Name: Jorgen Faenoe Name: Xxxxxx Xxxx
---------------------------- -------------------------------
Title: Manager & Head of Credit Title: Deputy Manager, Corporate
Risk & Management Banking
---------------------------- ------------------------------
The Agent
ABN AMRO BANK N.V.,
SINGAPORE BRANCH
00, Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 24396
Attention: Xx Xxxxx Xxx/Xx Xxxxxxxx Xxx
By: /s/ Xxxxx Xxx By: /s/ Goh Xxxxx Xxxxx
----------------------------- --------------------------------
Name: Xxxxx Xxx Name: Goh Xxxxx Xxxxx
--------------------------- ------------------------------
Title: Country Manager Title: Head, Corporate Banking
-------------------------- Division
-----------------------------
88
CONFORMED COPY
DATED 14TH DECEMBER, 1998
CHARTERED SILICON PARTNERS PTE LTD
AS BORROWER
ABN AMRO BANK N.V., SINGAPORE BRANCH
BAYERISCHE LANDESBANK GIROZENTRALE, SINGAPORE BRANCH
CITIBANK, N.A., SINGAPORE BRANCH
OVERSEAS UNION BANK LIMITED
THE SUMITOMO BANK, LIMITED, SINGAPORE BRANCH
AS ARRANGERS
DEN DANSKE BANK AKTIESELSKAB, SINGAPORE BRANCH
AS SENIOR LEAD MANAGER
THE BANK OF TOKYO-MITSUBISHI, LTD., SINGAPORE BRANCH
AS LEAD MANAGER
THE SANWA BANK, LIMITED, SINGAPORE BRANCH
AS MANAGER
ABN AMRO BANK N.V., SINGAPORE BRANCH
BAYERISCHE LANDESBANK GIROZENTRALE, SINGAPORE BRANCH
CITIBANK, N.A., SINGAPORE BRANCH
OVERSEAS UNION BANK LIMITED
THE SUMITOMO BANK, LIMITED, SINGAPORE BRANCH
THE SANWA BANK, LIMITED, SINGAPORE BRANCH
THE BANK OF TOKYO-MITSUBISHI, LTD., SINGAPORE BRANCH
DEN DANSKE BANK AKTIESELSKAB, SINGAPORE BRANCH
AS GUARANTOR BANKS
ABN AMRO BANK N.V., SINGAPORE BRANCH
BAYERISCHE LANDESBANK GIROZENTRALE, SINGAPORE BRANCH
CITIBANK, N.A., SINGAPORE BRANCH
OVERSEAS UNION BANK LIMITED
THE SUMITOMO BANK, LIMITED, SINGAPORE BRANCH
THE BANK OF TOKYO-MITSUBISHI, LTD., SINGAPORE BRANCH
DEN DANSKE BANK AKTIESELSKAB, SINGAPORE BRANCH
AS LENDING BANKS
- AND -
ABN AMRO BANK N.V., SINGAPORE BRANCH
AS AGENT
------------------------------------------
FIRST SUPPLEMENTAL AGREEMENT
(BEING SUPPLEMENTAL TO THE CREDIT AGREEMENT FOR
(1) A S$236,800,000 GUARANTEE FACILITY
(2) A US$143,200,000 TERM LOAN FACILITY
DATED 12TH MARCH, 1998)
------------------------------------------
XXXXX & XXXXXXXX,
00, XXXXXXXX XXXX, #00-00,
XXXX XXXXX,
XXXXXXXXX 000000.
89
i
C O N T E N T S
CLAUSE HEADING PAGE
------ ------- ----
1. INTERPRETATION 1
2. AMENDMENTS TO CREDIT AGREEMENT 2
3. REPRESENTATIONS AND WARRANTIES 3
4. INCORPORATION 3
5. EXPENSES AND STAMP DUTY 4
6. GOVERNING LAW 4
SCHEDULE 1 - THE GUARANTOR BANKS AND
THE LENDING BANKS 5
SCHEDULE 2 - CONDITIONS PRECEDENT 6
SCHEDULE 3 - FORM OF DRAWDOWN SCHEDULE 7
APPENDIX - FORM OF FIRST SUPPLEMENTAL
SHAREHOLDERS UNDERTAKING 8
90
T H I S F I R S T S U P P L E M E N T A L
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) ABN AMRO BANK N.V., SINGAPORE BRANCH, BAYERISCHE LANDESBANK
GIROZENTRALE, SINGAPORE BRANCH, CITIBANK, N.A., OVERSEAS UNION
BANK LIMITED and THE SUMITOMO BANK, LIMITED, SINGAPORE BRANCH
(the "Arrangers");
(3) THE SEVERAL BANKS AND FINANCIAL INSTITUTIONS named in Part A
of Schedule 1 (the "Guarantor Banks");
(4) THE SEVERAL BANKS AND FINANCIAL INSTITUTIONS named in Part B
of Schedule 1 (the "Lending Banks"); and
(5) 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 is supplemental to a Credit Agreement (the "Credit Agreement") dated 12th
March, 1998 made between (1) the Borrower, (2) the Arrangers, (3) the Guarantor
Banks, (4) the Lending Banks and (5) the Agent.
W H E R E A S:-
(A) Pursuant to the Credit Agreement, (1) the Guarantor Banks
agreed to grant to the Borrower a S$236,800,000 guarantee facility and (2) 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) The Borrower wishes to amend certain provisions of the Credit
Agreement and has requested the Arrangers, the Guarantor Banks, the Lending
Banks and the Agent to make, and the Arrangers, the Guarantor Banks, the Lending
Banks and the Agent have agreed on the terms and subject to the conditions set
out in this Supplemental Agreement to make, the amendments to the Credit
Agreement set out in this Supplemental Agreement.
I T I S A G R E E D as follows:-
1. INTERPRETATION
(A) In this Supplemental Agreement, except where the context
otherwise requires:-
"Effective Date" has the meaning ascribed to it in Clause 2;
and
"First Supplemental Shareholders Undertaking" means the first
supplemental shareholders undertaking between (1) the
Borrower, as borrower, (2) the Shareholders, as shareholders,
and (3) the Agent, as agent, substantially in the form of the
Appendix (or in such other form as may be agreed by the Agent,
the Shareholders and the Borrower).
(B) All terms and references used in this Supplemental Agreement
and which are defined or construed in the Credit Agreement but are not defined
or construed in this Supplemental Agreement shall have the same meaning and
construction in this Supplemental Agreement.
(C) The headings in this Supplemental Agreement are inserted for
convenience only and shall be ignored in construing this Supplemental Agreement.
Unless otherwise stated, references to the "Clauses", the "Schedules" and the
"Appendix" are to be construed as references to the clauses of, the schedules to
and the appendix to this Supplemental Agreement.
91
2
2. AMENDMENTS TO CREDIT AGREEMENT
The Borrower and each other party to this Supplemental
Agreement agree that with effect from 14th December, 1998 (or such other date as
may be agreed between the Borrower and each other party to this Supplemental
Agreement) (the "Effective Date"), the Credit Agreement shall be amended as
follows:-
(1) Clause 1(A) of the Credit Agreement shall be amended
as follows:-
(a) the definition of "Commitment Termination
Date" shall be amended by substituting the
date "31st December, 1999" with the date
"31st December, 2000"; and
(b) by substituting the definition of "Repayment
Dates" with the following definition:-
""Repayment Dates" means 31st December,
2000, 30th June, 2001, 31st December, 2001
and the Final Maturity Date;";
(2) Clause 4(A)(1)(a)(i) of the Credit Agreement shall be
amended by substituting the date "30th June, 2000"
appearing in line 3 thereof with the date "30th
September, 2000";
(3) Clause 7(A) of the Credit Agreement shall be amended
by substituting the word "six" appearing in line 3
thereof with the word "four";
(4) Clause 10(B) of the Credit Agreement shall be amended
as follows:-
(a) Clause 10(B)(1)(a) of the Credit Agreement
shall be amended as follows:-
(i) paragraph (i) shall be amended by
substituting the figure "0.125"
before the words "per cent."
appearing in line 2 thereof with the
figure "0.25"; and
(ii) paragraph (ii) shall be amended by
substituting the figure "0.0625"
before the words "per cent."
appearing in line 2 thereof with the
figure "0.15"; and
(b) Clause 10(B)(2)(a) of the Credit Agreement
shall be amended as follows:-
(i) paragraph (i) shall be amended by
substituting the figure "0.125"
before the words "per cent."
appearing in line 2 thereof with the
figure "0.25"; and
(ii) paragraph (ii) shall be amended by
substituting the figure "0.0625"
before the words "per cent."
appearing in line 2 thereof with the
figure "0.15";
(5) Clause 16(7) of the Credit Agreement shall be amended
by substituting the date "31st December, 1999"
appearing in line 2 thereof with the date "31st
December, 2000";
(6) Clause 17(A)(15) of the Credit Agreement shall be
amended by substituting the
92
3
date "31st December, 1999" appearing in line 2
thereof with the date "31st December, 2000"; and
(7) Schedule 6 of the Credit Agreement shall be deleted
in its entirety and substituted with Schedule 3 to
this Supplemental Agreement,
provided that (I) on or before the Effective Date, the Agent has notified the
Borrower that it has received (in form and substance satisfactory to it) each of
the documents specified in Schedule 2 and (II) on the Effective Date (aa) the
representations and warranties contained in Clause 14 of the Credit Agreement
and in Clause 3 of this Supplemental Agreement are true and correct in all
respects as of the Effective Date as if made on the Effective Date with respect
to the facts and circumstances existing at such date and (bb) no Event of
Default or Potential Event of Default has occurred.
3. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to and for the benefit of
each other party to this Supplemental Agreement 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 Agreement and (b) to make this
Supplemental Agreement admissible in evidence in the
courts of Singapore, 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 Agreement do not and will not
violate (a) any law to which it is subject, (b) its
Memorandum and Articles of Association or (c) any
agreement to which it is a party or which is binding
on it or its assets;
(3) this Supplemental Agreement and the Credit Agreement
(as amended by this Supplemental Agreement)
constitute its valid, binding and enforceable
obligations; and
(4) it is not in breach of any of its obligations under
the Credit Agreement.
4. INCORPORATION
(A) The Credit Agreement and this Supplemental Agreement shall be
read and construed as one document and this Supplemental Agreement shall be
considered as part of the Credit Agreement and, without prejudice to the
generality of the foregoing, where the context so allows, references in the
Credit Agreement to "this Agreement", howsoever expressed, shall be read and
construed as references to the Credit Agreement as amended, modified or
supplemented by this Supplemental Agreement.
(B) Except to the extent expressly amended by the provisions of
this Supplemental Agreement, the terms and conditions of the Credit Agreement
and all other instruments and agreements executed, delivered or entered into
thereunder or pursuant thereto are hereby confirmed and shall remain in full
force and effect.
5. EXPENSES AND STAMP DUTY
The Borrower shall pay:-
(i) on demand, all costs and expenses (including legal
fees and all goods and
93
4
services, value added and other duties or taxes
payable on such costs and expenses) reasonably
incurred by the Agent and/or the Arrangers in
connection with the preparation, negotiation or entry
into of this Supplemental Agreement and the First
Supplemental Shareholders Undertaking; and
(ii) promptly, and in any event before any interest or
penalty becomes payable, any stamp, goods and
services, value added, documentary, registration or
similar duty or tax payable in connection with the
entry into, enforcement and admissibility in evidence
of this Supplemental Agreement and the First
Supplemental Shareholders Undertaking and shall
indemnify the Agent, the Arrangers, the Guarantor
Banks and the Lending Banks against any liability
with respect to or resulting from any delay in paying
or omission to pay any such duty or tax.
6. GOVERNING LAW
This Supplemental Agreement shall be governed by, and
construed in accordance with, the laws of Singapore.
94
5
S C H E D U L E 1
Part A - Guarantor Banks
1. ABN AMRO Bank, N.V., Singapore Branch
2. Bayerische Landesbank Girozentrale, Singapore Branch
3. Citibank, N.A., Singapore Branch
4. Overseas Union Bank Limited
5. The Sumitomo Bank, Limited, Singapore Branch
6. The Sanwa Bank, Limited, Singapore Branch
7. The Bank of Tokyo-Mitsubishi, Ltd., Singapore Branch
8. Den Danske Bank Aktieselskab, Singapore Branch
Part B - Lending Banks
1. ABN AMRO Bank, N.V., Singapore Branch
2. Bayerische Landesbank Girozentrale, Singapore Branch
3. Citibank, N.A., Singapore Branch
4. Overseas Union Bank Limited
5. The Sumitomo Bank, Limited, Singapore Branch
6. The Bank of Tokyo-Mitsubishi, Ltd., Singapore Branch
7. Den Danske Bank Aktieselskab, Singapore Branch
95
6
S C H E D U L E 2
CONDITIONS PRECEDENT
1. A copy, certified true by an authorised officer of the
Borrower as being in full force and effect on the date thereof, of:-
(1) all actions required to be taken by the Borrower (a)
authorising the entry into of this Supplemental
Agreement and (b) authorising appropriate persons to
execute and deliver this Supplemental Agreement on
behalf of the Borrower and to take any action
contemplated in this Supplemental Agreement; and
(2) all necessary consents required by the Borrower for
the execution, delivery and performance of this
Supplemental Agreement or, if no such consents are
necessary, a certificate to that effect from a person
duly authorised by the Borrower so to certify.
2. Specimen signatures of the respective persons referred to in
paragraph 1 above, duly certified by an authorised officer of the Borrower,
together with certificates of incumbency, also duly certified, in respect of
each such person.
3. A copy, certified true by an authorised officer of each of the
Shareholders as being in full force and effect on the date thereof, of:-
(1) all actions required to be taken by that Shareholder
(a) authorising the entry into of the First
Supplemental Shareholders Undertaking and (b)
authorising appropriate persons to execute and
deliver the First Supplemental Shareholders
Undertaking on behalf of that Shareholder and to take
any action contemplated in the First Supplemental
Shareholders Undertaking; and
(2) all necessary consents required by that Shareholder
for the execution, delivery and performance of the
First Supplemental Shareholders Undertaking or, if no
such consents are necessary, a certificate to that
effect from a person duly authorised by that
Shareholder so to certify.
4. Specimen signatures of the respective persons referred to in
paragraph 3 above, duly certified by an authorised officer of each of the
Shareholders, together with certificates of incumbency, also duly certified, in
respect of each such person.
3. The First Supplemental Shareholders Undertaking, duly executed
by the Borrower, each of the Shareholders and the Agent.
00
0
X X X X X U L E 3
S C H E D U L E 6
FORM OF DRAWDOWN SCHEDULE
(1) (2) (3)
Utilisation Period Available EDB Amount Available Term Amount
------------------ ------------------- ---------------------
(1) 1st July, 1998 to S$0 US$18,750,000
30th September, 1998
(2) 1st October, 1998 to S$10,000,000 US$53,130,000
31st December, 1998
(3) 1st January, 1999 to S$20,000,000 US$18,750,000
31st March, 1999
(4) 1st April, 1999 to S$65,000,000 US$31,250,000
30th June, 1999
(5) 1st July, 1999 to S$110,000,000 US$21,320,000
30th September, 1999
(6) 1st October, 1999 to S$31,800,000 US$0
31st December, 1999
(7) 1st January, 2000 to
31st March, 2000 S$0 US$0
(8) 1st April, 2000 to
30th June, 2000 S$0 US$0
(9) 1st July, 2000 to
30th September, 2000 S$0 US$0
-------------
S$236,800,000
=============
(10) 1st October, 2000 to
31st December, 2000 US$0
----------------
US$143,200,000 "
================
97
8
I N W I T N E S S W H E R E O F this Supplemental Agreement
has been entered into on the date stated at the beginning.
THE BORROWER
CHARTERED SILICON PARTNERS PTE LTD
60, Xxxxxxxx Xxxxxxxxxx Xxxx X,
Xxxxxx 0,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Attention: Legal Department
By: /s/ Xxxxx Xxxxx Witness: /s/ Xxxx Xxxxxxx
---------------------------- ---------------------------
Name: Xxxxx Xxxxx Name: Xxxx Xxxxxxx
--------------------------- ------------------------------
Title: Director Title: General Manager
-------------------------- -----------------------------
THE ARRANGERS
ABN AMRO BANK N.V.,
SINGAPORE BRANCH
00, Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 24396
Attention: Xx Xxxx Toi Wee/Xx Xxxxxxxx Xxxx
By: /s/ Goh Xxxxx Xxxxx By: /s/ Xxxx Xxxx Fun
----------------------------- --------------------------------
Name: Goh Xxxxx Xxxxx Name: Xxxx Xxxx Fun
---------------------------- ------------------------------
Title: Head, Corporate Banking Title: Vice President
Division, Senior -----------------------------
Vice President
----------------------------
98
0
XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXX,
XXXXXXXXX BRANCH
000, Xxxxx Xxxx, #00-00,
Xxx Xxxxxxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 21445 BAYSIN
Attention: Mr Stefan Hattenkofer/Xx Xx Xxxxx Inn
By: /s/ Xxxxxxxx Sum By: /s/ Xx Xxxxx Inn
----------------------------- --------------------------------
Name: Xxxxxxxx Sum Name: Xx Xxxxx Inn
--------------------------- ------------------------------
Title: Vice President Title: Assistant Vice President
-------------------------- -----------------------------
CITIBANK, N.A., SINGAPORE BRANCH
0, Xxxxxxx Xxx, #00-00,
XXX Xxxxxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 24584 CITBANK
Attention: Xx Xxxx Xxxx/Xx Xxx Xxxxx Xxxx
By: /s/ Xxxx Xxxx
-----------------------------------------
Name: Xxxx Xxxx
---------------------------------------
Title: Director, Head of Public Sector Unit
--------------------------------------
99
10
OVERSEAS UNION BANK LIMITED
0, Xxxxxxx Xxxxx, 00xx Xxxxx,
XXX Xxxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000/538 2449
Telex Number: RS 23916
Attention: Xx Xxxxxxx Xxxx/Xx Xxxx Xxxx Xxx
By: /s/ Xxxxx Xxxx
--------------------------------
Name: Xxxxx Xxxx
------------------------------
Title: EVP (N)
-----------------------------
THE SUMITOMO BANK, LIMITED,
SINGAPORE BRANCH
0, Xxxxxxx Xxx, #00-00,
XXX Xxxxx Xxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 21656 SUMITBK
Attention: Xx Xxxxxx Xxxxxxx/Mr Kazushige Goto/
Xx Xxxxxx Xxxx
By: /s/ X. Xxxxxxxx
--------------------------------
Name: N. Ishizaku
------------------------------
Title: Joint General Manager
-----------------------------
100
11
GUARANTOR BANKS
ABN-AMRO BANK N.V.,
SINGAPORE BRANCH
00, Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 24396
Attention: Xx Xxxx Toi Wee/Xx Xxxxxxxx Xxxx
By: /s/ Goh Xxxxx Xxxxx By: /s/ Xxxx Xxxx Fun
------------------------------------ -------------------------------
Name: Goh Xxxxx Xxxxx Name: Xxxx Xxxx Fun
---------------------------------- -----------------------------
Title: Head, Corporate Banking Title: Vice President
Division, Senior Vice President ----------------------------
---------------------------------
BAYERISCHE LANDESBANK GIROZENTRALE,
SINGAPORE BRANCH
000, Xxxxx Xxxx, #00-00,
Xxx Xxxxxxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 21445 BAYSIN
Attention: Mr Stefan Hattenkofer/Xx Xx Xxxxx Inn
By: /s/ Xxxxxxxx Sum By: /s/ Xx Xxxxx Inn
------------------------------ --------------------------------
Name: Xxxxxxxx Sum Name: Xx Xxxxx Inn
---------------------------- ------------------------------
Title: Vice President Title: Assistant Vice President
--------------------------- -----------------------------
101
12
CITIBANK, N.A., SINGAPORE BRANCH
0, Xxxxxxx Xxx, #00-00,
XXX Xxxxxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 24584 CITBANK
Attention: Xx Xxxx Xxxx/Xx Xxx Xxxxx Xxxx
By: /s/ Xxxx Xxxx
------------------------------------------
Name: Xxxx Xxxx
-----------------------------------------
Title: Director, Head of Public Sector Unit
----------------------------------------
OVERSEAS UNION BANK LIMITED
0, Xxxxxxx Xxxxx, 00xx Xxxxx,
XXX Xxxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000/000 0000
Telex Number: RS 23916
Attention: Xx Xxxxxxx Xxxx/Xx Xxxx Xxxx Xxx
By: /s/ Xxxxx Xxxx
-------------------------------
Name: Xxxxx Xxxx
-----------------------------
Title: EVP (N)
----------------------------
102
13
THE SUMITOMO BANK, LIMITED,
SINGAPORE BRANCH
0, Xxxxxxx Xxx, #00-00,
XXX Xxxxx Xxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 21656 SUMITBK
Attention: Xx Xxxxxx Xxxxxxx/Mr Kazushige Goto/
Xx Xxxxxx Xxxx
By: /s/ X. Xxxxxxxx
-------------------------------
Name: N. Ishizaku
-----------------------------
Title: Joint General Manager
----------------------------
THE SANWA BANK, LIMITED,
SINGAPORE BRANCH
6, Raffles Quay, #24-01,
Xxxx Xxxxxxx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 28573
Attention: Xx Xxx Soh Wah/Xx Xxx Wee Hian
By: /s/ Xxxxx Xxxx
---------------------------------
Name: Xxxxx Xxxx
-------------------------------
Title: Assistant General Manager
------------------------------
103
14
THE BANK OF TOKYO-MITSUBISHI, LTD.,
SINGAPORE BRANCH
0, Xxxxxxx Xxxxx, #00-00,
Xxxxxxxx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 24363
Attention: Xx Xxxxxxxx Xxxx (Loan Administration Department)/
Xx Xxx Xxxx Xxxx (Corporate Finance Department)
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
-------------------------------
Title: Deputy General Manager
------------------------------
DEN DANSKE BANK AKTIESELSKAB,
SINGAPORE BRANCH
00, Xxxxxxx Xxxxx, #00-00,
Xxxxxxxxx Xxxx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: 28030 DDBSIN
Attention: Mr Jorgen Faenoe/Ms Xxxxxxx Wee
By: /s/ Xxxxxx Xxxxxxxxxxx By: /s/ Jorgen Faenoe
------------------------------ -----------------------------------
Name: Xxxxxx Xxxxxxxxxxx Name: Jorgen Faenoe
----------------------------- ---------------------------------
Title: General Manager Title: Manager, Head of Credit and
---------------------------- Risk Management
--------------------------------
104
15
THE LENDING BANKS
ABN-AMRO BANK N.V.,
SINGAPORE BRANCH
00, Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 24396
Attention: Xx Xxxx Toi Wee/Xx Xxxxxxxx Xxxx
By: /s/ Goh Xxxxx Xxxxx By: /s/ Xxxx Xxxx Fun
------------------------------------ ----------------------------
Name: Goh Xxxxx Xxxxx Name: Xxxx Xxxx Fun
---------------------------------- --------------------------
Title: Head, Corporate Banking Title: Vice President
Division, Senior Vice President -------------------------
---------------------------------
BAYERISCHE LANDESBANK GIROZENTRALE,
SINGAPORE BRANCH
000, Xxxxx Xxxx, #00-00,
Xxx Xxxxxxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 21445 BAYSIN
Attention: Mr Stefan Hattenkofer/Xx Xx Xxxxx Inn
By: /s/ Xxxxxxxx Sum By: /s/ Xx Xxxxx Inn
----------------------------- -----------------------------------
Name: Xxxxxxxx Sum Name: Xx Xxxxx Inn
--------------------------- ---------------------------------
Title: Vice President Title: Assistant Vice President
-------------------------- --------------------------------
105
16
CITIBANK, N.A., SINGAPORE BRANCH
0, Xxxxxxx Xxx, #00-00,
XXX Xxxxxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000/000 0000
Telex Number: RS 24584 CITBANK
Attention: Xx Xxxx Xxxx/Xx Xxx Xxxxx Xxxx
By: /s/ Xxxx Xxxx
-------------------------------------------
Name: Xxxx Xxxx
------------------------------------------
Title: Director, Head of Public Sector Unit
-----------------------------------------
OVERSEAS UNION BANK LIMITED
0, Xxxxxxx Xxxxx, 00xx Xxxxx,
XXX Xxxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000/538 2449
Telex Number: RS 23916
Attention: Xx Xxxxxxx Xxxx/Xx Xxxx Xxxx Xxx
By: /s/ Xxxxx Xxxx
-------------------------------
Name: Xxxxx Xxxx
-----------------------------
Title: EVP (N)
----------------------------
106
17
THE SUMITOMO BANK, LIMITED,
SINGAPORE BRANCH
0, Xxxxxxx Xxx, #00-00,
XXX Xxxxx Xxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 21656 SUMITBK
Attention: Xx Xxxxxx Xxxxxxx/Mr Kazushige Goto/
Xx Xxxxxx Xxxx
By: /s/ X. Xxxxxxxx
-------------------------------
Name: X. Xxxxxxxx
-----------------------------
Title: Joint General Manager
----------------------------
THE BANK OF TOKYO-MITSUBISHI, LTD.,
SINGAPORE BRANCH
0, Xxxxxxx Xxxxx, #00-00,
Xxxxxxxx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 24363
Attention: Xx Xxxxxxxx Xxxx (Loan Administration Department)/
Xx Xxx Xxxx Xxxx (Corporate Finance Department)
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
-------------------------------
Title: Deputy General Manager
-------------------------------
107
00
XXX XXXXXX XXXX XXXXXXXXXXXX,
XXXXXXXXX BRANCH
00, Xxxxxxx Xxxxx, #00-00,
Xxxxxxxxx Xxxx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: 28030 DDBSIN
Attention: Mr Jorgen Faenoe/Ms Xxxxxxx Wee
By: /s/ Xxxxxx Xxxxxxxxxxx By: /s/ Jorgen Faenoe
-------------------------------- --------------------------------
Name: Xxxxxx Xxxxxxxxxxx Name: Jorgen Faenoe
------------------------------- ------------------------------
Title: General Manager Title: Manager, Head of Credit and
------------------------------- Risk Management
-----------------------------
THE AGENT
ABN AMRO BANK N.V.,
SINGAPORE BRANCH
00, Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 24396
Attention: Xx Xxxxx Xxx/Xx Xxxxxxxx Xxx
By: /s/ Goh Xxxxx Xxxxx By: /s/ Xxxx Xxxx Fun
------------------------------------ -----------------------------
Name: Goh Xxxxx Xxxxx Name: Xxxx Xxxx Fun
----------------------------------- ---------------------------
Title: Head, Corporate Banking Title: Vice President
Division, Senior Vice President --------------------------
----------------------------------
