EXHIBIT 6.4
[XXXXX & XXXXXXXX LETTERHEAD]
Dated 28 June 2002
CHARTERED SILICON PARTNERS PTE LTD
as Borrower
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
as CSM
and
ABN AMRO BANK N.V., SINGAPORE BRANCH
as Security Trustee
SUBORDINATION AGREEMENT
TABLE OF CONTENTS
CONTENTS PAGE
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1. INTERPRETATION 1
2. DECLARATION OF TRUST 2
3. SUBORDINATION 3
4. AGREEMENT BY BORROWER AND CSM 4
5. REPRESENTATIONS AND WARRANTIES 5
6. UNDERTAKINGS 6
7. PAYMENTS 6
8. NATURE OF RIGHTS AND OBLIGATIONS 8
9. EXPENSES 9
10. BENEFIT OF AGREEMENT 10
11. WAIVERS 10
12. COMMUNICATIONS 10
13. PARTIAL INVALIDITY 11
14. GOVERNING LAW 11
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THIS AGREEMENT is made on 28 June 2002 BETWEEN:
(1) CHARTERED SILICON PARTNERS PTE LTD (the "BORROWER");
(2) CHARTERED SEMICONDUCTOR MANUFACTURING LTD ("CSM"); and
(3) ABN AMRO BANK N.V., SINGAPORE BRANCH, in its capacity as security trustee
for itself and the Secured Parties defined below (in such capacity, the
"SECURITY TRUSTEE").
WHEREAS:
(A) By a Credit Agreement (the "CREDIT AGREEMENT") dated 28 September 2000 made
between (1) the Borrower, as borrower, (2) ABN AMRO Bank N.V., Singapore
Branch, Citibank, N.A., Singapore Branch, United Overseas Bank Limited
(formerly known as Overseas Union Bank Limited), Sumitomo Mitsui Banking
Corporation, Singapore Branch (formerly known as The Sumitomo Bank,
Limited, Singapore Branch), Oversea-Chinese Banking Corporation Limited,
Industrial And Commercial Bank Of China, Singapore Branch and Commerzbank
Aktiengesellschaft, Singapore Branch, as lead arrangers, (3) The Bank of
Tokyo-Mitsubishi, Ltd., Singapore Branch, UFJ Bank Limited, Singapore
Branch (formerly known as The Sanwa Bank Limited, Singapore Branch), Mizuho
Corporate Bank Limited, Singapore Branch (formerly known as The Industrial
Bank of Japan, Limited, Singapore Branch), The Norinchukin Bank, Singapore
Branch and Credit Lyonnais, Singapore Branch, as arrangers, (4) The
Hongkong and Shanghai Banking Corporation Limited, as co-arranger, (5)
Bayerische Landesbank Girozentrale, Singapore Branch, as lead manager, (6)
Westdeutsche Landesbank Girozentrale, Singapore Branch, as manager, (7) the
Guarantor Banks named therein, as guarantor banks, (8) the Lending Banks
named therein, as lending banks, (9) ABN AMRO Bank N.V. (the "AGENT"), as
agent, and (10) the Security Trustee, as security trustee, (a) the
Guarantor Banks agreed to grant a S$240,000,000 guarantee facility or a
US$140,000,000 term loan facility to the Borrower and (b) the Lending Banks
agreed to grant a US$680,000,000 term loan facility to the Borrower, upon
the terms and subject to the conditions of the Credit Agreement.
(B) CSM is the legal and beneficial owner of 51 per cent. of the issued shares
in the capital of the Borrower.
(C) CSM (after giving due consideration to the terms and conditions of the
Credit Agreement and satisfying itself that there are reasonable grounds
for believing that the entry into by it of this Agreement will benefit it)
has agreed to enter into this Agreement and give the undertakings provided
in this Agreement.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS: In this Agreement, except to the extent that the context
requires otherwise:
"CSM LOAN AGREEMENT" means the loan agreement dated 27 June 2002 made
between (1) the Borrower, as borrower, and (2) CSM, as lender;
"DISCHARGE DATE" means the date on which the Senior Indebtedness has been
discharged in full and on which the Borrower and the Shareholders cease to
be under any liability to the Security Trustee and the Secured Parties
under or in connection with the Financing Documents;
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"EXCLUDED TRANSACTION" means any genuine and good faith commercial
transaction entered into between the Borrower and CSM which is not
primarily financial in nature and is contemplated under the Joint Venture
Agreement, but shall exclude the transactions contemplated under the CSM
Loan Agreement;
"SECURED PARTIES" means all parties for the time being to the Credit
Agreement other than the Borrower (and includes their respective successors
and assigns);
"SECURITY TRUSTEE" includes its successors in title and assigns and any
company with which it may amalgamate and all other persons for the time
being the security trustee for itself and the Secured Parties under this
Agreement;
"SENIOR INDEBTEDNESS" means all sums (whether principal, interest, fee or
otherwise) which are or at any time may be or become due from or owing by
the Borrower to the Security Trustee and/or the Secured Parties (or any of
them), whether actually or contingently, under or in connection with, or
which the Borrower has covenanted to pay or discharge under or pursuant to,
any of the Financing Documents (which, for the avoidance of doubt, excludes
the Phase 1 Financing Documents (as defined in the Trust Deed));
"SHAREHOLDERS" means CSM, Agilent Technologies Europe B.V. and EDB
Investments Pte Ltd (and includes their respective successors and permitted
assignees and transferees);
"SUBORDINATED INDEBTEDNESS" means all sums which are or at any time may be
or become due from or owing by the Borrower to CSM solely under the CSM
Loan Agreement (as may be reduced from time to time pursuant to Clause 3.1
and excluding, for the avoidance of doubt, any Released Amount); and
"TRUST DEED" means the trust deed dated 28 September 2000 made between (1)
the Borrower and (2) the Security Trustee, being the Trust Deed referred to
in the Credit Agreement.
1.2 CONSTRUCTION: All terms and references used in this Agreement and which are
defined or construed in the Credit Agreement but are not defined or
construed in this Agreement shall have the same meaning and construction in
this Agreement. The provisions of Clause 1(C) of the Credit Agreement shall
apply to this Agreement as though they are set out in full in this
Agreement (mutatis mutandis) except that references to the Credit Agreement
are to be construed as references to this Agreement. All references in this
Agreement to a Financing Document include that Financing Document as
amended, modified or supplemented from time to time and any document which
amends, modifies or supplements that Financing Document.
1.3 MISCELLANEOUS: The headings in this Agreement are inserted for convenience
only and shall be ignored in construing this Agreement. Unless the context
otherwise requires, words denoting the singular number only shall include
the plural and vice versa. References to "CLAUSES" are to be construed as
references to the clauses of this Agreement.
2. DECLARATION OF TRUST
CSM acknowledges that the Security Trustee holds the benefit of this
Agreement as agent and trustee for the Secured Parties.
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3. SUBORDINATION
3.1 SUBORDINATION: CSM and the Borrower hereby agree with and undertake to the
Security Trustee and each of the Secured Parties that, notwithstanding
anything to the contrary contained in any agreement or other document
constituting or evidencing the Subordinated Indebtedness, before the
Discharge Date the Subordinated Indebtedness and the rights and claims of
CSM in relation to the Subordinated Indebtedness are subordinated to the
Senior Indebtedness and the respective rights and claims of the Secured
Parties in relation to the Senior Indebtedness and accordingly, subject as
provided in this Agreement, payments of any amount of the Subordinated
Indebtedness (whether in the event of the winding-up of the Borrower or
otherwise) are conditional upon all of the Senior Indebtedness having first
been fully satisfied and discharged and no payment of any amount of the
Subordinated Indebtedness which, but for this Agreement, would otherwise
fall due for payment will fall so due, and instead such payment will fall
due only if and when the Senior Indebtedness has been fully satisfied and
discharged and, if the Subordinated Indebtedness or any part thereof is
paid by or on behalf of the Borrower to CSM, that payment shall be
forthwith paid over by CSM to the Security Trustee, Provided that
notwithstanding anything to the contrary in this Agreement and the
Financing Documents, the Borrower may, at any time and from time to time,
for so long as an Event of Default has not occurred and is not continuing
unwaived, at its option either (1) make payments to CSM in relation to the
Subordinated Indebtedness and/or (2) by notice to the Security Trustee and
CSM reduce the Subordinated Indebtedness (in any manner which CSM and the
Borrower may at the relevant time agree) subject to the satisfaction by the
Borrower of the following conditions:
3.1.1 the amount standing to the credit of the Debt Service Reserve Account
at the time of such payment and/or reduction is not less than
US$129,000,000; and
3.1.2 the Borrower has provided a written confirmation to the Security
Trustee, duly signed by an authorised signatory of the Borrower,
confirming that it will not be in breach of the covenants in Clauses
16(A)(15)(a) and 16(A)(15)(b) of the Credit Agreement on the
immediately succeeding Calculation Date (after taking into account
such payment and/or reduction) and setting out in reasonable detail
the basis of calculation for which such confirmation is made.
Any such amount repaid to CSM pursuant to Clause 3.1(1) above and the
amount of any reduction referred to in Clause 3.1(2) above shall cease to
form part of the Subordinated Indebtedness (the "RELEASED AMOUNT").
3.2 TURNOVER: Without prejudice to the provisions of Clause 3.1 above, if any
amount of Subordinated Indebtedness is discharged or purported to be
discharged by payment, repayment, prepayment, set-off or in any other
manner in contravention of Clause 3.1 above or Clause 4 (and, for the
avoidance of doubt, any payment of consideration, discount or benefit given
or credit terms granted under any of the Excluded Transactions shall be
deemed not to be a discharge or purported discharge of any part of the
Subordinated Indebtedness), CSM shall:
3.2.1 (if CSM actually receives the amount discharged or purported to be
discharged) immediately pay it to the Security Trustee for
application towards the Senior Indebtedness; and
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3.2.2 (if CSM does not, as a result of discharge by set-off or otherwise,
actually receive the amount discharged or purported to be discharged)
pay to the Security Trustee an amount equal to that discharged or
purported to be discharged.
3.3 APPLICATION: Any amount received by the Security Trustee from CSM, or any
person on its behalf, under Clauses 3.1 or 3.2 above shall be applied in
the following manner and order:
3.3.1 first, in or towards payment of any costs, charges and expenses
incurred by the Security Trustee then due and payable under this
Agreement and the other Financing Documents;
3.3.2 secondly, in or towards payment of the Senior Indebtedness (and in
the event that such sums are insufficient to satisfy in full the
Senior Indebtedness, such sums shall be paid to the Secured Parties
in proportion to their respective shares of the Senior Indebtedness
at the time of payment); and
3.3.3 thirdly, in payment of any surplus to CSM or any other person
lawfully entitled thereto.
4. AGREEMENT BY BORROWER AND CSM
4.1 BY BORROWER: The Borrower agrees and undertakes that prior to the Discharge
Date, it shall not, without the prior consent in writing of the Security
Trustee and the Secured Parties:
4.1.1 make any loans or advances, whether directly or indirectly, to CSM or
provide any guarantee, indemnity or security for or in connection
with any indebtedness or liabilities of CSM or otherwise enter into
any transactions with CSM other than (a) any transaction on arm's
length commercial terms and for valuable consideration, (b) any
Excluded Transaction or (c) any transaction contemplated by the CSM
Loan Agreement;
4.1.2 secure all or any part of the Subordinated Indebtedness;
4.1.3 redeem, purchase or otherwise acquire any of the Subordinated
Indebtedness;
4.1.4 repay, prepay or reduce any, or pay any interest, fees or commissions
(but without prejudice to accrual thereof) on, or by reference to,
any of the Subordinated Indebtedness otherwise than in accordance
with the terms of this Agreement; or
4.1.5 take or omit to take any action whereby the subordination of the
Subordinated Indebtedness or any part thereof to the Senior
Indebtedness may be terminated, impaired or adversely affected.
4.2 BY CSM: Except as otherwise expressly provided in this Agreement, CSM shall
not, without the prior consent in writing of the Security Trustee and the
Secured Parties, prior to the Discharge Date:
4.2.1 ask, demand, xxx for, take or receive, directly or indirectly,
whether by exercise of set-off, counterclaim or in any other manner,
or recover or enforce payment of any Subordinated Indebtedness
(provided that, for the avoidance of doubt, nothing under this Clause
4.2.1 shall prohibit any asking, demand, suit for, taking or
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receipt, or recovery or enforcement of, any payment due by the
Borrower under any of the Excluded Transactions);
4.2.2 take any security from the Borrower or any other person in respect of
any Subordinated Indebtedness and any security taken notwithstanding
the undertaking in this Clause 4.2.2 shall be held by CSM for the
Security Trustee (provided that nothing herein shall be effective to
create a charge);
4.2.3 make or enforce any claim or right against the Borrower or prove in
competition with the Security Trustee or any Secured Party in respect
of the performance of any obligation under this Agreement;
4.2.4 assign, transfer, sell, charge or purport to assign, transfer, sell,
charge or otherwise dispose or purport to dispose of the whole or any
part of or any interest in any rights which it may from time to time
and for the time being have against the Borrower in respect of the
Subordinated Indebtedness; or
4.2.5 take or omit to take any action whereby the subordination of the
Subordinated Indebtedness or any part thereof to the Senior
Indebtedness may be terminated, impaired or adversely affected.
5. REPRESENTATIONS AND WARRANTIES
CSM represents and warrants to and for the benefit of the Security Trustee
and each of the Secured Parties that:
5.1 POWERS: it has the power to enter into, exercise its rights and perform and
comply with its obligations under this Agreement;
5.2 AUTHORISATIONS AND CONSENTS: all action, conditions and things required to
be taken, fulfilled and done (including the obtaining of any necessary
consents) in order (a) to enable it lawfully to enter into, exercise its
rights and perform and comply with its obligations under this Agreement,
(b) to ensure that those obligations are valid, legally binding and
enforceable, and (c) to make this Agreement admissible in evidence in the
courts of Singapore have been taken, fulfilled and done;
5.3 NON-VIOLATION OF LAWS: its entry into, exercise of its rights and/or
performance of or compliance with its obligations under this Agreement do
not and will not violate, or exceed any power or restriction granted or
imposed by, (a) any law to which it is subject or (b) its Memorandum and
Articles of Association;
5.4 OBLIGATIONS BINDING: its obligations under this Agreement are valid,
binding and enforceable;
5.5 NON-VIOLATION OF OTHER AGREEMENTS: its entry into, exercise of its rights
and/or performance of or compliance with its obligations under this
Agreement do not and will not violate, to an extent or in a manner which
has or will have a material adverse effect on it, any agreement to which it
is a party or which is binding on it or its assets;
5.6 LITIGATION: no litigation, arbitration or administrative proceeding is
current or pending (a) to restrain the entry into, exercise of its rights
under and/or performance or enforcement of or compliance with its
obligations under this Agreement or (b) which has or will have a material
adverse effect on it; and
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5.7 REPETITION: each of the above representations and warranties will be
correct and complied with in all material respects at all times up to the
Discharge Date as if repeated then by reference to the then existing
circumstances.
6. UNDERTAKINGS
CSM undertakes that, at all times prior to the Discharge Date, it will from
time to time on reasonable request by the Security Trustee acting on the
instructions of the Majority Banks do or procure the doing of all such acts
and will execute or procure the execution of all such documents as may be
reasonably necessary for giving full effect to this Agreement or securing
to the Security Trustee and the Secured Parties the full benefits of all
rights, powers and remedies conferred upon the Security Trustee and the
Secured Parties in this Agreement.
7. PAYMENTS
7.1 TAXES
7.1.1 All sums payable by CSM 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.
7.1.2 If CSM 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, CSM under this Agreement, CSM shall pay such
additional amount as is necessary to ensure that the Security Trustee
or, as the case may be, the Secured Party to which that sum is due,
receives on the due date and retains (free from any liability other
than tax on its own overall net income) a net sum equal to what it
would have received and so retained had no such deduction or
withholding been required or made.
7.1.3 If CSM or any other person (whether or not a party to, or on behalf
of a party to, this Agreement) must at any time pay any tax or other
amount on, or calculated by reference to, any sum received or
receivable by the Security Trustee or, as the case may be, any of the
Secured Parties from CSM under this Agreement (except for a payment
by the Security Trustee or a Secured Party of tax on its own overall
net income), CSM shall pay or procure the payment of that tax or
other amount before any interest or penalty becomes payable or, if
that tax or other amount is payable and paid by the Security Trustee
or any Secured Party, shall reimburse it on demand for the amount
paid by it.
7.1.4 Within 30 days after paying any sum from which it is required by law
to make any deduction or withholding, and within 30 days after the
due date of payment of any tax or other amount which it is required
by Clause 7.1.3 above to pay, CSM shall deliver to the Security
Trustee evidence reasonably satisfactory to the Security Trustee or,
as the case may be, the relevant Secured Party of that deduction,
withholding or payment and (where remittance is required) of the
remittance thereof to the relevant taxing or other authority.
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7.1.5 As soon as CSM is aware that any such deduction, withholding or
payment is required (or any change in any such requirement), CSM
shall notify the Security Trustee.
7.2 GOODS AND SERVICES TAX: CSM shall also pay to the Security Trustee and each
Secured Party on demand, in addition to any amount payable by CSM under
this Agreement, any goods and services, value added or other similar tax
payable in respect of that amount (and any reference in this Agreement to
that amount shall be deemed to include any such taxes payable in addition
to it).
7.3 REFUND OF TAX CREDITS: If:
7.3.1 CSM makes a payment under Clause 7.1.2 or 7.1.3 (a "TAX PAYMENT") in
respect of a payment to the Security Trustee or any Secured Party
under this Agreement; and
7.3.2 the Security Trustee or the relevant Secured Party determines in its
absolute discretion that it has obtained a refund of tax or obtained
and used a credit against tax on its overall net income (a "TAX
CREDIT") which the Security Trustee or that Secured Party in its
absolute discretion is able to identify as attributable to that Tax
Payment,
then, if in its absolute discretion it can do so without any adverse
consequences for the Security Trustee or, as the case may be, that Secured
Party, the Security Trustee or, as the case may be, that Secured Party
shall reimburse CSM such amount as the Security Trustee or, as the case may
be, that Secured Party in its absolute discretion determines to be such
proportion of that Tax Credit as will leave the Security Trustee or, as the
case may be, that Secured Party (after that reimbursement) in no better or
worse position in respect of its worldwide tax liabilities than it would
have been in if no Tax Payment had been required. The Security Trustee or
any Secured Party shall have an absolute discretion as to whether to claim
any Tax Credit (and, if it does claim, the extent, order and manner in
which it does so) and whether any amount is due from it under this Clause
7.3 (and, if so, what amount and when). Neither the Security Trustee nor
any Secured Party shall be obliged to disclose any information regarding
its tax affairs and computations.
7.4 CURRENCY INDEMNITY
7.4.1 Any amount received or recovered by the Security Trustee or any
Secured Party in respect of any sum expressed to be due to it from
CSM 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 CSM or otherwise, shall only constitute a discharge to
CSM 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).
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7.4.2 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, CSM shall indemnify it against any loss
sustained by it as a result. In any event, CSM shall indemnify the
recipient against the cost of making any such purchase. For the
purpose of this Clause 7.4, it will be sufficient for the recipient
to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
7.4.3 Each of the indemnities in this Clause 7.4 constitutes a separate and
independent obligation from the other obligations in this Agreement,
shall give rise to a separate and independent cause of action, shall
apply irrespective of any indulgence granted by the Security Trustee
and/or any Secured Party and shall continue in full force and effect
despite any judgment, order, claim or proof for a liquidated amount
in respect of any sum due under this Agreement or any other judgment
or order.
8. NATURE OF RIGHTS AND OBLIGATIONS
8.1 NO RELEASE: The obligations of CSM under this Agreement (excluding, for the
avoidance of doubt, any obligation of CSM under this Agreement which has
been discharged) shall not be discharged, impaired or otherwise affected by
any act, omission, matter or thing which, but for this Clause 8.1, may
operate to release or otherwise exonerate CSM from its obligations under
this Agreement in whole or in part, including without limitation and
whether or not known to it or any other person:
8.1.1 any variation in or to the Project;
8.1.2 any time, indulgence, concession waiver or consent at any time given
by the Security Trustee and/or any of the Secured Parties in respect
of the Senior Indebtedness or any part thereof or to the Borrower,
CSM or any other person;
8.1.3 any amendment or supplement to any provision of any Financing
Document or any other agreement, security, guarantee or indemnity;
8.1.4 the making or the absence of any demand on the Borrower, CSM or any
other person for payment;
8.1.5 the enforcement or absence of enforcement of or release of any of the
Financing Documents or any other agreement, security, guarantee or
indemnity held in respect of the Senior Indebtedness;
8.1.6 the winding-up, insolvency or bankruptcy of the Borrower, CSM or any
other person;
8.1.7 the illegality, invalidity or unenforceability of or any defect in
any provision of any Financing Document or any other agreement,
security, guarantee or indemnity or any of the obligations of the
Borrower, CSM or any other person thereunder, whether on the grounds
of ultra xxxxx, not being in the interests of the Borrower or any
other person, not having been duly authorised, executed or delivered
by the Borrower or any other person or for any reason whatsoever; or
8.1.8 any other act, event or omission which but for this provision would
or might operate to impair or discharge the obligations of CSM under
this Agreement.
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8.2 CONTINUING OBLIGATIONS: The obligations of CSM and the Borrower under this
Agreement are continuing obligations, will not be discharged by any
intermediate payment and will remain in full force and effect until the
obligations have been fulfilled (for the avoidance of doubt, nothing in
this Clause 8.2 shall affect any obligations of the Borrower or CSM which
has been discharged by the due and proper performance by the Borrower or
CSM of such obligations).
8.3 REINSTATEMENT
8.3.1 Any settlement or discharge between the Security Trustee or any of
the Secured Parties and CSM shall be conditional upon no security or
payment to the Security Trustee or such Secured Party by the Borrower
or any other person being avoided or reduced by virtue of any
provision or enactment relating to bankruptcy, insolvency or
winding-up for the time being in force or by virtue of any obligation
to give effect to any preference or priority and the Security Trustee
or such Secured Party (as the case may be) shall be entitled to
recover the value or amount of any such security or payment from CSM
subsequently as if such settlement or discharge had not occurred.
8.3.2 Without prejudice to the provisions of Clause 8.3.1 above, where any
discharge (whether in respect of the obligations of CSM or any
security for those obligations or otherwise) is made in whole or in
part or any arrangement is made on the faith of any payment, security
or other disposition which is avoided or must be repaid on
bankruptcy, insolvency or winding-up or otherwise without limitation,
the liability of CSM under this Agreement shall, unless the Security
Trustee and the Secured Parties agree otherwise, continue as if the
discharge or arrangement, as the case may be, had not occurred.
8.4 FAILURE BY CSM: The failure of CSM or the Borrower to perform or comply
with any of its obligations under this Agreement shall not release CSM or
the Borrower of its obligations under this Agreement.
8.5 IMMEDIATE RECOURSE: CSM waives any right which it may have of first
requesting the Security Trustee or any of the Secured Parties to proceed
against or enforce any other rights or security or claim payment from the
Borrower or any other person before claiming from CSM under this Agreement.
8.6 ADDITIONAL SECURITY: This Agreement shall be in addition to and shall not
in any way be prejudiced by any other security now or hereafter held by the
Security Trustee or any Secured Party as security for the obligations of
the Borrower under the Credit Agreement.
9. EXPENSES
9.1 BY CSM: CSM shall pay on demand all costs and expenses (including legal
expenses on a full indemnity basis) reasonably incurred by the Security
Trustee and/or any of the Secured Parties in protecting or enforcing any
rights against it under this Agreement.
9.2 BY BORROWER: The Borrower shall pay on demand all costs and expenses
(including legal expenses on a full indemnity basis) reasonably incurred by
the Security Trustee and/or any of the Secured Parties in protecting or
enforcing any rights against it under this Agreement.
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10. BENEFIT OF AGREEMENT
10.1 CSM/BORROWER: The Borrower may not assign or transfer any of its rights,
benefits or obligations under this Agreement. CSM may not assign or
transfer any of its rights, benefits or obligations under this Agreement.
10.2 SECURITY TRUSTEE/SECURED PARTIES
10.2.1 Each of the Security Trustee and the Secured Parties may assign all
or part of its rights under this Agreement without the consent of
any party to any assignee or transferee under the Credit Agreement
(but the assignor shall give to the Borrower prior notice of such
assignment or transfer). Any such assignee shall be entitled to the
full benefit of this Agreement to the same extent as if it were an
original party in respect of the rights assigned to it.
10.2.2 Neither CSM nor the Borrower shall be liable for any costs or
expenses which may be incurred in connection with any assignment or
transfer of any of the rights of the Security Trustee or any of the
Secured Parties under this Agreement.
10.3 DISCLOSURE OF INFORMATION: The Security Trustee or any of the Secured
Parties may disclose on a confidential basis to any other party to the
Financing Documents or any of its other branches or its headquarters or to
an actual or potential New Bank, assignee, sub-participant or the like such
information about the Borrower, CSM or any other person as it may think fit
and may disclose to such party such information about the Borrower or CSM
with the prior consent in writing of the Borrower or, as the case may be,
CSM (Provided that, at any time and from time to time after the making of a
declaration under Clause 17(B) of the Credit Agreement, (1) no such consent
will be required for any such disclosure and (2) the Security Trustee or
the relevant Secured Party making any such disclosure shall, if
practicable, consult with the Borrower or, as the case may be, CSM prior to
making any such disclosure and shall consider in good faith any request
from the Borrower or, as the case may be, CSM to the Security Trustee or
such Secured Party not to make any such disclosure or to delay making any
such disclosure).
10.4 LIMITATION ON CERTAIN OBLIGATIONS: If, at the time of any assignment or
transfer by a Secured Party, circumstances exist which would oblige CSM to
pay to the assignee or transferee under Clause 7.1 any sum in excess of the
sum (if any) which it would have been obliged to pay to that Secured Party
under that Clause in the absence of that assignment or transfer, CSM shall
not be obliged to pay that excess.
11. WAIVERS
No failure on the part of the Security Trustee or any of the Secured
Parties to exercise, and no delay on its part in exercising, any right or
remedy under this Agreement will operate as a waiver thereof, nor will any
single or partial exercise of any right or remedy preclude any other or
further exercise thereof or the exercise of any other right or remedy. The
rights and remedies provided in this Agreement are cumulative and not
exclusive of any other rights or remedies (whether provided by law or
otherwise).
12. COMMUNICATIONS
12.1 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
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this Agreement shall be sent to that party at the fax number, telex number
or address, and marked for the attention of the person (if any), from time
to time designated by that party to the Security Trustee (or, in the case
of the Security Trustee, by it to each other party) for the purpose of this
Agreement. The initial fax number, telex number, address and person (if
any) so designated by each party are set out against its name at the end of
this Agreement.
12.2 DEEMED DELIVERY: Any communication under this Agreement shall be deemed to
have been received (if sent by fax or telex) on the day of despatch or (in
any other case) when left at the address required by Clause 12.1 above or
within five days after being sent by prepaid post (by airmail if to another
country) addressed to it at that address.
13. PARTIAL INVALIDITY
The illegality, invalidity or unenforceability of any provision of this
Agreement under the law of any jurisdiction shall not affect its legality,
validity or enforceability under the law of any other jurisdiction nor the
legality, validity or enforceability of any other provision.
14. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with, the
laws of Singapore.
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IN WITNESS WHEREOF this Agreement has been entered into on the date stated at
the beginning.
THE BORROWER
The Common Seal of )
CHARTERED SILICON PARTNERS PTE LTD )
was hereunto affixed )
in the presence of: )
/s/ Xxxxxx Xxxxxx Director
-------------------------------
/s/ Xxxxxx Hon Secretary
-------------------------------
00, Xxxxxxxxx Xxxxxxxxxx Xxxx X,
Xxxxxx 0,
Xxxxxxxxx 000000.
Fax Number: 0000000
Attention: Legal Department
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CSM
The Common Seal of )
CHARTERED SEMICONDUCTOR )
MANUFACTURING LTD )
was hereunto affixed )
in the presence of: )
/s/ Xxxxx Xxxxxxx Director
---------------------------
/s/ Xxxxxx Hon Secretary
---------------------------
00, Xxxxxxxxx Xxxxxxxxxx Xxxx X,
Xxxxxx 0,
Xxxxxxxxx 000000.
Fax Number: 0000000
Attention: Legal Department
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THE SECURITY TRUSTEE
Signed, Sealed and Delivered by ) /s/ Xxxxxx X Xxxx/ Xxxxxx Xxxx
as )
attorneys for and on behalf of )
ABN AMRO BANK N.V., )
SINGAPORE BRANCH )
in the presence of: ) /s/ Xxxxx Xxx Mei
00, Xxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 0000 0000 / 0000 0000
Telex Number: RS 24396
Attention: Xx Xxxxxx Xxxx / Xx Xxxxxxxx Xxxx / Xx Xxxxxx Xxxx
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