Contract
Exhibit 10.61
CONFORMED
COPY
Dated 31
March 2008
TECH
SEMICONDUCTOR SINGAPORE PTE. LTD.
as
Borrower
ABN
AMRO BANK N.V.
CITIBANK,
N.A., SINGAPORE BRANCH
CITIGROUP
GLOBAL MARKETS SINGAPORE PTE LTD
DBS
BANK LTD
OVERSEA-CHINESE
BANKING CORPORATION LIMITED
as
Original Mandated Lead Arrangers
CITICORP
INVESTMENT BANK (SINGAPORE) LIMITED
as
Facility Agent
ABN
AMRO BANK N.V., SINGAPORE BRANCH
as
Security Trustee
and
THE
BANKS
as
defined herein
US$600,000,000
|
XXXXX
& XXXXXXXX LLP
XXX
XXXXXX XXXXXXXXX #00-00
XXXXXXXXX
000000
|
TABLE
OF CONTENTS
| Contents | Page | |
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1.
|
Definitions
and Interpretation
|
1
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|
2.
|
The
Facility
|
14
|
|
3.
|
Utilisation
of the Facility
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15
|
|
4.
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Interest
Periods
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16
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|
5.
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Payment
and Calculation of Interest
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17
|
|
6.
|
Market
Disruption and Alternative Interest Rates
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17
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|
7.
|
Notification
|
18
|
|
8.
|
Repayment
of the Facility
|
19
|
|
9.
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Prepayment
and Cancellation
|
19
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10.
|
Taxes
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21
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|
11.
|
Tax
Receipts
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22
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|
12.
|
Increased
Costs
|
23
|
|
13.
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Illegality
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25
|
|
14.
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Mitigation
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25
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|
15.
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Representations
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26
|
|
16.
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Financial
Information and other information
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30
|
|
17.
|
Financial
Condition
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31
|
|
18.
|
Covenants
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33
|
|
19.
|
Events
of Xxxxxxx
|
00
|
|
00.
|
Commitment
Commission and Fees
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48
|
|
21.
|
Costs
and Expenses
|
49
|
|
22.
|
Default
Interest and Break Costs
|
49
|
|
23.
|
Borrower’s
Indemnities
|
50
|
|
24.
|
Currency
of Account and Payment
|
51
|
- i
-
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25.
|
Payments
|
51
|
|
26.
|
Set-Off
|
53
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|
27.
|
Sharing
|
53
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|
28.
|
Accounts
|
54
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|
29.
|
The
Facility Agent, The Original Mandated Lead Arrangers and The
Banks
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57
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30.
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Assignments
and Transfers
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62
|
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31.
|
Calculations
and Evidence of Debt
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65
|
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32.
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Remedies
and Waivers, Partial Invalidity
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66
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33.
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Notices
|
66
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34.
|
Counterparts
|
68
|
|
35.
|
Amendments
|
68
|
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36.
|
Governing
Law
|
69
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37.
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Jurisdiction
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69
|
|
Schedule
1
|
The
Banks
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71 |
|
Schedule
2
|
Form of Transfer Certificate | 72 |
|
Schedule
3
|
Conditions Precedent | 75 |
|
Schedule
4
|
Notice of Drawdown | 78 |
|
Schedule
5
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Form of Compliance Certificate | 79 |
|
Schedule
6
|
Confidentiality Undertaking | 80 |
|
Schedule
7
|
Standing Payment Instructions | 83 |
- ii
-
This Agreement is made on 31
March 2008
Among
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(1)
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TECH Semiconductor Singapore
Pte. Ltd. (company registration number: 199102059C) (the Borrower”), as
borrower;
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(2)
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ABN AMRO Bank N.V., Citibank,
N.A., Singapore Branch/ Citigroup Global Markets Singapore Pte Ltd, DBS
Bank Ltd and Oversea-Chinese Banking Corporation Limited (the
“Original Mandated Lead
Arrangers”), as original mandated lead
arrangers;
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(3)
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Citicorp Investment Bank
(Singapore) Limited (the “Facility Agent”), as
facility agent;
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(4)
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ABN Amro Bank N.V., Singapore
Branch (the “Security Trustee”), as
security trustee; and
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(5)
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The
Banks (as defined below).
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It
is agreed as follows:
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1.
|
Definitions
and Interpretation
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1.1
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Definitions
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In this
Agreement:
“Accession Undertaking” shall
have the meaning ascribed thereto in the Trust Deed.
“Accounts” means the bank
accounts of the Borrower from time to time.
“Actual Additional Capital
Expenditure” has the meaning given to it in Clause 18.16.4.
“Advance” means an advance (as
from time to time consolidated, divided or reduced by repayment or prepayment)
made or to be made by the Banks under the Facility.
“Approved Capital Expenditure”
means approved expenditure of a capital nature as permitted under Clause
18.16 (Capital
Expenditure).
“Assembly and Test Services
Agreement” means the assembly and test service agreement dated 16 July
2005 between Micron and the Borrower.
“Asset Based Financing” means
any transaction entered into by the Borrower pursuant to which the Borrower
leases, acquires, mortgages or finances the acquisition of an asset (including,
without limitation, finance, capital or operating leases, sale and lease back
and/or hire purchase transactions).
“Authorised Investments”
means:
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(a)
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investments
denominated in Singapore dollars, for Singapore dollar amounts, US dollars
for US dollar amounts or any other currency where that is required for
operational purposes and made in the form of demand or time deposits,
certificates of deposit or other unsecured and non-subordinated debt
obligations placed with or, as the case may be, issued by any Bank or any
corporation, if in the case of a corporation, the then current rating of
Standard & Poor's International Rating, Ltd. of such unsecured and
non-subordinated obligations of such corporation is at least A or the then
current rating of Moody's Investors
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- 1 -
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Service
Inc. of such unsecured and non-subordinated obligations of such
corporation is at least A2;
or
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(b)
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such
other investments as may be approved by the Instructing Group from time to
time.
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“Availability Period” means, in relation to
the Facility, the period from and including the date of this Agreement to and
including the earlier of (a) 31 December 2008 and (b) the first Business Day on
which the Available Commitment of each of the Banks is zero and is not available
to be drawn in accordance with the terms of this Agreement.
“Available Commitment” means,
in relation to a Bank at any time and save as otherwise provided herein, its
Commitment at such time less the aggregate of its
share of the Advances which have been made.
“Available Facility” means, at
any time, the aggregate amount of the Available Commitments adjusted, in the
case of any proposed drawdown of the Facility, so as to take into account any
reduction in the Commitment of a Bank taking effect on or before the proposed
drawdown date pursuant to the terms hereof.
“Bank” means any financial
institution:
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(a)
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named
in Schedule 1 (The
Banks); or
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(b)
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which
has become a party hereto in accordance with Clause 30.4 (Assignments by Banks)
or Clause 30.5 (Transfers by
Banks),
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and which
has not ceased to be a party hereto in accordance with the terms
hereof.
“Borrower Accounts Assignment”
means an assignment of the Accounts, in a form agreed between the Security
Trustee and the Borrower, to be duly executed by the Borrower in favour of the
Security Trustee.
“Business Day” means a day
(other than a Saturday or Sunday) which is not a public holiday and on which
banks are open for general business in Singapore, Hong Kong, Taipei and (in
relation to any date for payment or purchase of US dollars) New York
City.
“CIBSL” means Citicorp
Investment Bank (Singapore) Limited acting, as the context requires, in its
capacity as agent for the Existing Lenders under the Existing Credit
Agreement.
“Commitment” means, in relation
to a Bank at any time and save as otherwise provided herein, the amount set
opposite its name under the heading “Commitment” in Schedule 1
(The
Banks).
“Compliance Certificate” means
a certificate substantially in the form set out in Schedule 5 (Form of Compliance
Certificate).
“Confidentiality Undertaking”
means a confidentiality undertaking substantially in the form set out in
Schedule 6 (Confidentiality
Undertaking) or such other form as may be agreed between the Facility
Agent and the Borrower.
“Core Commercial Agreements”
means the Assembly and Test Services Agreement, the Lease, the Purchase
Agreement, the Shareholders’ Agreement, the Technical Assistance Agreement, the
Wafer Purchase Agreement, the Secondary Silicon Purchase Agreement,
- 2 -
the U.S.
Wafer Purchase Agreement, the U.S. Unit-To-Test Product Purchase Agreement and
the Wafer Purchase Agreement for Subcontracted Processes.
“Debenture” means a fixed and
floating charge over the assets and revenues of the Borrower (including
inventories, receivables and debts) in a form agreed between the Security
Trustee and the Borrower, to be duly executed by the Borrower in favour of the
Security Trustee.
“Debt Service Deposit Accounts”
means (a) the interest bearing account, account number and designation
0000-000000-0 USD opened or to be opened with DBS Bank Ltd (which may be divided
into sub-accounts) and (b) the interest bearing account, account number and
designation 000-000000-000 opened or to be opened with Oversea-Chinese Banking
Corporation Limited (which may be divided into sub-accounts), in each case by
the Borrower for the purpose of receiving a deposit from the Borrower to be held
as security pursuant to the Borrower Accounts Assignment and “Debt Service Deposit Account”
shall mean either of them.
“Dispute” means any dispute
referred to in Clause 37 (Jurisdiction).
“Encumbrance” means (a) a
mortgage, charge, pledge, lien or other encumbrance securing any obligation of
any person, (b) any arrangement under which money or claims to, or the benefit
of, a bank or other account may be applied, set off or made subject to a
combination of accounts so as to effect discharge of any sum owed or payable to
any person or (c) any other type of preferential arrangement (including any
title transfer and retention arrangement) having a similar effect.
“Environmental Claim” means any
claim, proceedings or investigation by any person pursuant to any Environmental
Law.
“Environmental Law” means any
applicable law in any jurisdiction in which the Borrower conducts business which
relates to the pollution or protection of the environment or harm to or the
protection of human health or the health of animals or plants.
“Environmental Permits” means
any permit, licence, consent, approval and other authorisation and the filing of
any notification, report or assessment required under any Environmental Law for
the operation of the business of the Borrower conducted on or from the
properties owned or used by the Borrower.
“Event of Default” means any
circumstance described as such in Clause 19 (Events of
Default).
“Excess Cash” has the meaning
given to it in Clause 18.16.4.
“Existing Credit Agreement”
means the US$400,000,000 facility agreement dated 24 November 2005 between the
Borrower, CIBSL as facility agent and DBS Bank Ltd as security trustee and the
financial institutions referred to therein as mandated lead arrangers, lead
arrangers, lead managers, managers and banks.
“Existing Security Documents”
means the Security Documents as such term is defined in the Existing Credit
Agreement.
“Existing Lenders” means the
financial institutions referred to as “Banks” in the Existing Credit
Agreement.
- 3 -
“Facility” means the term loan
facility granted to the Borrower in this Agreement.
“Facility Office” means, in
relation to any Finance Party, the office identified with its signature below
or, in the case of a Transferee, at the end of the Transfer Certificate to which
it is a party as Transferee or such other office as any Finance Party may from
time to time select by notice to the Facility Agent (by not less than five
Business Days’ written notice).
“Final Maturity Date” means 25
May 2012.
“Finance Documents” means this
Agreement, the Security Documents, any fee letter delivered pursuant to Clause
20 (Commitment Commission and
Fees) and any other document designated in writing as such by the
Facility Agent and the Borrower.
“Finance Parties” means the
Facility Agent, the Security Trustee and the Banks.
“Financial Indebtedness” means
any indebtedness for or in respect of:
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(a)
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Indebtedness
For Borrowed Money;
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(b)
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any
documentary or standby letter of credit facility or performance bond
facility;
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(c)
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any
interest rate swap, currency swap, forward foreign exchange transaction,
cap, floor, collar or option transaction or any other treasury transaction
or any combination thereof or any other transaction entered into in
connection with protection against or benefit from fluctuation in any rate
or price (and the amount of the Financial Indebtedness in relation to any
such transaction shall be calculated by reference to the xxxx-to-market
valuation of such transaction at the relevant time);
and
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(d)
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any
guarantee or indemnity for any of the items referred to in paragraphs (a)
to (c) above.
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“Indebtedness For Borrowed
Money” means any indebtedness for or in respect of:
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(a)
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moneys
borrowed;
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(b)
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any
amount raised by acceptance under any acceptance credit
facility;
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(c)
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any
amount raised pursuant to any note purchase facility or the issue of
bonds, notes, debentures, loan stock or any similar
instrument;
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(d)
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any
amount raised pursuant to any issue of shares which are expressed to be
redeemable;
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(e)
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the
amount of any liability in respect of any lease or hire purchase contract
which would, in accordance with generally accepted accounting principles
in the relevant jurisdiction, be treated as a finance or capital
lease;
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(f)
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the
amount of any liability in respect of any advance or deferred purchase
agreement if one of the primary reasons for entering into such agreement
is to raise finance;
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(g)
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receivables
sold or discounted (other than on a non-recourse
basis);
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- 4 -
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(h)
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any
agreement or option to re-acquire an asset if one of the primary reasons
for entering into such agreement or option is to raise
finance;
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(i)
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any
amount raised under any other transaction (including any forward sale or
purchase agreement) having the commercial effect of a borrowing;
and
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(j)
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the
amount of any liability in respect of any guarantee or indemnity for any
of the items referred to in paragraphs (a) to (i)
above.
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“Information Memorandum” means
the document dated January 2008 concerning the Borrower which, at its request
and on its behalf, was prepared in relation to this transaction and distributed
to selected banks.
“Instructing Group”
means:
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(a)
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whilst
no Advances are outstanding, a Bank or Banks whose Commitments amount in
aggregate to 66 2/3 per cent. or more of the Total Commitments;
and
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(b)
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whilst
at least one Advance is outstanding, a Bank or Banks to whom in aggregate
66 2/3 per cent. or more of the Loan is (or, immediately prior to its
repayment, was then) owed.
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“Insurance Assignment” means an
assignment of insurances, in a form agreed between the Security Trustee and the
Borrower, to be duly executed by the Borrower in favour of the Security
Trustee.
“Insurance Expert” means
Lockton Companies (Singapore) Private Limited or such other insurance adviser as
may be from time to time reasonably acceptable to the Facility
Agent.
“Interest Period” means, save
as otherwise provided herein:
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(a)
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any
of those periods mentioned in Clause 4.1 (Interest Periods);
and
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(b)
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in
relation to an Unpaid Sum, any of those periods mentioned in Clause 22.1
(Default Interest
Periods).
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“Lease” means the 30-year lease
of the Site commencing from 1 November 1991 granted by the Jurong Town
Corporation to the Borrower comprised in the lease registered as IA/168613A at
the Singapore Land Authority.
“Loan” means, at any time, the
aggregate principal amount of outstanding Advances.
“Margin” means two point five
per cent. (2.5 per cent.) per annum.
“Material Adverse Effect” means (a) an effect on
the business, operations, property, condition (financial or otherwise) or
prospects of the Borrower which would reasonably be expected to have a material
adverse effect on the ability of the Borrower to perform its payment obligations
under the Finance Documents to which it is party unless such term is used in
Clause 19 (Events of
Default) (other than Clause 19.10 (Litigation)), in which event
it shall mean a material adverse effect on the ability of any of the Obligors to
perform its payment or (in the case of the Borrower only) other material
obligations under the Finance Documents to which it is party or (b) a material
adverse effect on the validity or enforceability of the Finance Documents or the
rights or remedies of any Finance Party under the Finance
Documents.
- 5 -
“Micron” means Micron
Technology, Inc., a company incorporated in Delaware, U.S.A.
“Micron Corporate Guarantee”
means the conditional guarantee given by Micron in the form agreed between the
Finance Parties and Micron, to be duly executed by Micron in favour of the
Security Trustee.
"Micron Security Documents"
means the security documents entered or to be entered into by the Borrower in
favour of Micron in connection with the Micron Corporate Guarantee, complying
with the requirements of Clause 18.13.1.
“Mortgage” means a mortgage, in
a form agreed between the Security Trustee and the Borrower, over the Site to be
duly executed by the Borrower in favour of the Security Trustee.
“Non-extension Event” means any of the
parties to the Shareholders’ Agreement has given (in accordance with Clause 26.5
of the Shareholders’ Agreement) any notice under Clause 14 of the Shareholders’
Agreement (as such Clause may be renumbered) or under any other analogous
provisions of the Shareholder's Agreement, for the non-extension of the
Term.
“Non-Repeated Representations”
means each of the representations set out in Clause 15.10 (No Winding-Up) to Clause
15.24 (Payments of
Taxes).
“Notice of Drawdown” means a
notice substantially in the form set out in Schedule 4 (Notice of
Drawdown).
“Obligor” means the Borrower or
any party to a Finance Document (other than the Finance Parties and the Original
Mandated Lead Arrangers).
“Operating Accounts” means the
Accounts other than the Debt Service Deposit Accounts.
“Original Financial Statements”
means the audited financial statements of the Borrower for its financial year
ended 30 August 2007.
“Permitted Encumbrance”
means:
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(a)
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encumbrances
for taxes, fees, assessments or other governmental charges which arise by
operation of law and are not delinquent or remain payable without penalty
or are being contested in good faith and in an appropriate manner,
provided in each case that an appropriate reserve has been made
therefor;
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(b)
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encumbrances
consisting of carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar encumbrances arising by
operation of law and in the ordinary course of business which are not
delinquent or remain payable without penalty or are being contested in
good faith and in an appropriate manner provided in each case that an
appropriate reserve has been made
therefor;
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(c)
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encumbrances
securing (i) the performance of bids, trade contracts (other than
indebtedness for borrowed money), leases or statutory obligations, (ii)
contingent obligations with respect to surety and appeal bonds, or letters
of credit, and (iii) other obligations of a like nature provided that, in
each case such encumbrances are incurred in the ordinary course of
business and are not delinquent or remain
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- 6 -
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payable
without penalty or are being contested in good faith and in an appropriate
manner and an appropriate reserve has been made
therefor;
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(d)
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encumbrances
consisting of easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, do not materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the business of
the Borrower;
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(e)
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subject
to Clause 18.24 (Permitted Financial
Indebtedness), encumbrances created in respect of any Asset Based
Financing where the encumbrances do not extend beyond the property
purchased or financed (whether before, on or after the date of this
Agreement), and all replacements, additions, attachments and accessions
thereto, and the proceeds (including insurance proceeds)
thereof;
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(f)
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encumbrances
arising in the ordinary course of the Borrower's business solely by virtue
of any statutory, common law or contractual provisions relating to
banker's encumbrances, rights of set-off or similar rights and remedies as
to deposit or operating accounts;
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(g)
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encumbrances
in the nature of leases and subleases of, and licenses and sublicenses
where the Borrower is the lessor or licensor (or sublessor or sublicensor)
provided that such leases, subleases, licenses and sublicenses do not in
the aggregate materially interfere with the business of the
Borrower;
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(h)
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encumbrances
created pursuant to the Finance
Documents;
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(i)
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encumbrances
created over equipment and related assets to secure the balance of the
purchase price payable therefor provided that the aggregate amount of all
such unpaid purchase prices that remain unpaid more than 60 days after any
testing of the relevant asset has been completed and such asset has been
accepted by the Borrower shall not exceed US$10,000,000 or its equivalent
in other currencies;
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(j)
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subject
to Clause 18.24 (Permitted Financial
Indebtedness), encumbrances securing indebtedness permitted for
financing or refinancing all or part of the purchase price for equipment
or related assets;
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(k)
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encumbrances
created pursuant to the Micron Security Documents;
and
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(l)
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encumbrances
created pursuant to the Existing Credit Agreement and the Existing
Security Documents.
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“Permitted Financial
Indebtedness” means:
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(a)
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Financial
Indebtedness outstanding under the Finance
Documents;
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(b)
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Financial
Indebtedness incurred for or in respect of any documentary or standby
letter of credit facility or performance bond
facility;
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(c)
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Financial
Indebtedness incurred for or in respect of any interest rate swap,
currency swap, forward foreign exchange transaction, cap, floor, collar or
option transaction or any other treasury transaction or any combination
thereof or any other transaction entered into in connection with
protection against or benefit from fluctuation in any rate or price (and
the amount of the Financial Indebtedness in
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- 7 -
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relation
to any such transaction shall be calculated by reference to the
xxxx-to-market valuation of such transaction at the relevant
time);
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(d)
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any
guarantee or indemnity for any of the items referred to in paragraphs (b)
and (c) above;
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(e)
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Financial
Indebtedness incurred by the Borrower under any Asset Based Financing
provided that (i) the maximum aggregate amount of principal and interest
accrued and payable by the Borrower under all Asset Based Financing
(excluding Asset Based Financing for leases relating to the operation of
gas plants) does not exceed US$200,000,000 or its equivalent outstanding
at any time and (ii) the maximum aggregate amount of principal and
interest accrued and payable by the Borrower under all Asset Based
Financing (excluding Asset Based Financing in the form of operating leases
and finance leases) does not exceed US$100,000,000 at any
time;
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(f)
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Subordinated
Debt made available by and owing to the Shareholders and/or the parties to
the Shareholders’ Agreement; and
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(g)
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Financial
Indebtedness outstanding under the Existing Credit Agreement or the
Existing Security Documents, provided such Financial Indebtedness is fully
repaid by the Borrower either out of its cashflow before the first Advance
is made hereunder and/or with the proceeds of such first
Advance.
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“Plant” means each of the
advanced wafer fabrication plants operated by the Borrower.
“Potential Event of Default”
means any event which would become (with the passage of time, the giving of
notice, the making of any determination hereunder or any combination thereof
pursuant to Clause 19 (Events
of Default)) an Event of Default provided that:
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(a)
|
for
the purpose of Clause 15.9 (No Defaults),
Potential Event of Default shall mean the making of any Advance which
would reasonably be expected to result in an Event of Default;
and
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(b)
|
for
the avoidance of doubt, no projection prepared or produced by the Borrower
for its internal purposes with respect to its financial condition shall,
in and of itself, constitute a Potential Event of Default (it being
understood that any event relating to or relied upon as a basis of, such
projection may be a Potential Event of Default if it falls within the
definition thereof (excluding this paragraph
(b)).
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“Project” means the operation
and upgrading of the Plant by the Borrower.
“Proportion” means, in relation
to a Bank:
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(a)
|
whilst
no Advances are outstanding, the proportion borne by its Commitment to the
Total Commitments (or, if the Total Commitments are then zero, by its
Commitment to the Total Commitments immediately prior to their reduction
to zero); or
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(b)
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whilst
at least one Advance is outstanding, the proportion borne by its share of
the Loan to the Loan.
|
“Purchase Agreement” means the
purchase agreement entered into between Micron and the Borrower dated 1 October
1998 (as amended from time to time).
- 8 -
“Quotation Date” means, in
relation to any period for which an interest rate is to be determined under the
Finance Documents, 11:00am (Singapore time) on the date falling two Singapore
Business Days prior to the first day of that period.
“Reference Banks” means the
principal Singapore offices of ABN AMRO Bank N.V., Oversea-Chinese Banking
Corporation Limited, Citibank, N.A. and DBS Bank Ltd or such banks as may be
selected as such by the Facility Agent after consultation with the
Borrower.
“Relevant Loan Balance” means
the principal amount of the Loan outstanding at the close of business on the
last day of the Availability Period.
“Repayment Date” means each of
the dates specified in Clause 8 (Repayment of the
Facility).
“Repayment Instalment” means
each of the instalments for repayment of the Loan specified in Clause 8 (Repayment of the
Facility).
“Repeated Representations”
means each of the representations set out in Clause 15.1 (Status) to Clause 15.9 (No Defaults).
“Secondary Silicon Purchase
Agreement” means the secondary silicon purchase agreement dated 1
December 1998 entered into between, among others, Micron and the
Borrower.
“Security Documents” means the
Borrower Accounts Assignment, the Debenture, the Insurance Assignment, the
Micron Corporate Guarantee, the Mortgage, the Security Sharing Agreement and the
Trust Deed.
“Security Sharing Agreement”
means a security sharing agreement, in a form agreed among the Finance Parties,
the Borrower and Micron, to be duly executed by the Borrower and
Micron.
“Singapore Business Days” means
a day (other than Saturday or Sunday) which is not a public holiday and on which
banks are open for general business in Singapore.
“Shareholders” means each (or
any or all, as the context may require) of Micron, Hewlett-Packard Singapore
(Private) Limited, Canon Inc and any other person who may hold shares in the
Borrower from time to time.
“Shareholders Termination Event” means a
Non-extension Event has occurred and is continuing on 11 April
2011.
“Shareholders' Agreement” means
a shareholders' agreement dated 11 April 1991 as amended from time to time, read
with the Withdrawal Agreement, pursuant to which the parties thereto agreed to
establish the Borrower as a limited liability company, the purpose of such
company being to construct and operate advanced wafer fabrication plants in
Singapore.
“SIBOR” means, in relation to
any amount to be advanced to, or owing by, the Borrower under the Finance
Documents on which interest for a given period is to accrue the percentage rate
per annum determined by the Facility Agent to be equal to the arithmetic mean
(rounded upwards, if necessary, to the fifth decimal place) of the respective
rates quoted according to Reuters Screen Page SIBOR fixing methodology (as
described on the
- 9 -
screen
page currently known as SIBOT, by disregarding the highest rate and the lowest
rate quoted of each of the banks whose rates appear above the average rate line)
on the screen page designated for dollars (being currently “SIBO”) or the currency of any
Unpaid Sum published as reported by Reuters Limited through its Reuters Monitor
Service or any equivalent successor to such page (the “Reuters Screen”) as the rate
at which it is offering deposits in dollars or, as the case may be, the currency
of such Unpaid Sum, for a period comparable to that for which such rate is to be
determined in the Singapore interbank market at or about 11.00 a.m. (Singapore
time) on the Quotation Date therefor or, at the option of the Facility Agent, if
there is no rate quoted for such period, such rate as is determined by the
Facility Agent to be the appropriate rate by reference to the weighted mean of
the rates quoted for the nearest shorter and longer periods to such
period, provided
that if on any Quotation Date for any period by reference to which
interest is to be calculated (a) for any such period only one or no banks have
quotations of SIBOR appearing on the Reuters' Screen at the relevant time (and
the Facility Agent has not determined an appropriate rate by reference to the
weighted mean of the rates quoted for the nearest shorter and longer periods to
such period) or (b) the rate determined as SIBOR as aforesaid is, in the opinion
of the Facility Agent, manifestly incorrect, then SIBOR, in relation to any such
period, shall be the arithmetic mean (rounded as aforesaid) of the respective
rates quoted by the Reference Banks to the Facility Agent at its request as
their offered rate to prime banks in the Singapore interbank market for deposits
in dollars or, as the case may be, the currency of such Unpaid Sum, in an amount
comparable to the amount of such Advance or such Unpaid Sum for a period
comparable to such period at or about 11.00 a.m. (Singapore time) on the
Quotation Date therefor.
“Singapore” means the Republic
of Singapore and where the context permits, any agency (other than an agency
having a direct or indirect shareholding in the Borrower), taxing authority or
political sub-division thereof.
“Site” means the whole of Lot
3709L of Mukim 13 comprised in Certificate of Title (SUB) Volume 632 Folio 27,
together with the buildings erected thereon.
“Standing Payment Instruction”
means, in relation to each of the Banks, the payment instructions set out in
Schedule 7 (Standing Payment
Instructions) or in any relevant Transfer Certificate, as amended from
time to time by original written instructions notified to the Facility Agent by
letter by a duly authorised officer of the relevant Bank.
“Subordinated Debt” means any
loan or advance or other indebtedness made available to the Borrower by any
person or owing by the Borrower to any person which is subordinated as to
payment or repayment (in all circumstances) to the rights of the Finance Parties
hereunder and under the Security Documents, on terms disclosed to the Facility
Agent.
“Technical Assistance
Agreement” means the technical assistance agreement entered into between
Micron and the Borrower dated 1 October 1998 (as amended from time to
time).
“Term” has the meaning given to
it in the Shareholders’ Agreement.
“Total Commitments” means, at
any time, the aggregate of the Banks’ Commitments.
- 10 -
“Transfer Certificate” means a
certificate substantially in the form set out in Schedule 2 (Form of Transfer Certificate)
signed by a Bank and a Transferee under which:
|
|
(a)
|
such
Bank seeks to procure the transfer to such Transferee of all or a part of
such Bank’s rights, benefits and obligations under the Finance Documents
upon and subject to the terms and conditions set out in Clause 30.3
(Assignments and
Transfers by Banks); and
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|
|
(b)
|
such
Transferee undertakes to perform the obligations it will assume as a
result of delivery of such certificate to the Facility Agent as
contemplated in Clause 30.5 (Transfers by
Banks).
|
“Transfer Date” means, in
relation to any Transfer Certificate, the date for the making of the transfer as
specified in such Transfer Certificate.
“Transferee” means a person to
which a Bank seeks to transfer by novation all or part of such Bank’s rights,
benefits and obligations hereunder.
“Trust Deed” means a trust
deed, in a form agreed between the Security Trustee and the Borrower, pursuant
to which the Security Trustee agrees to hold all of the Security Documents
entered into in its favour as trustee on behalf of the beneficiaries referred to
therein on the terms and conditions specified therein.
“Unpaid Sum” means the unpaid
balance of any of the sums referred to in Clause 22.1 (Default Interest
Periods).
“U.S. Wafer Purchase Agreement”
means the U.S. wafer purchase agreement dated 1 May 2000 between, among others,
Micron and the Borrower.
“U.S. Unit-To-Test Product Purchase
Agreement” means the U.S. unit-to-test product purchase agreement dated 1
June 2003 between Micron and the Borrower.
“Wafer Purchase Agreement”
means the wafer purchase agreement dated 24 August 1999 between, among others,
Micron and the Borrower.
“Wafer Purchase Agreement for
Subcontracted Processes” means the wafer purchase agreement for
subcontracted processes dated 2 November 2007 between the Borrower and the
Shareholders.
“Withdrawal Agreement” means
the withdrawal agreement dated 1 August 2007 between, among others, EDB
Investments Pte Ltd, Micron and the Borrower.
|
1.2
|
Interpretation
|
Any
reference in this Agreement to:
an “affiliate” of a person shall
be construed as a reference to any person which is a subsidiary of the
first-mentioned person or a holding company of the first-mentioned person or any
other subsidiary of that holding company;
the
“Facility Agent”, the
“Security Trustee” or
any “Bank” shall be
construed so as to include its and any subsequent successors and permitted
transferees in accordance with their respective interests;
“continuing”, in relation
to:
- 11 -
|
|
(a)
|
an
Event of Default, shall be construed as a reference to an Event of Default
which is continuing and has not been remedied or waived in accordance with
the terms hereof;
|
|
|
(b)
|
a
Potential Event of Default, shall be construed as a reference to a
Potential Event of Default which is continuing and has not been remedied
within the relevant grace period or waived in accordance with the terms
hereof; and
|
|
|
(c)
|
a
Non-extension Event, shall be construed such that where any notice is
given (in accordance with Clause 26.5 of the Shareholders’ Agreement) by
any party to the Shareholders’ Agreement resulting in that Non-extension
Event, the Non-extension Event shall be deemed as continuing unless (i)
such notice has been nullified and the Term has been extended to a date
falling no earlier than 25 November 2013 or (ii) the Shareholders’
Agreement has been terminated in circumstances where Micron has acquired
all the shares in the Borrower;
|
“the equivalent”, on any given
date, in a specified currency (the “first currency”) of an amount
denominated in another currency (the “other currency”) is, unless
otherwise stated, a reference to the amount of the first currency which would be
required to purchase the amount of the other currency at the spot rate of
exchange quoted by the Facility Agent at or about 11.00 a.m. on such date for
the purchase of the other currency with the first currency;
“GST” shall be construed as a
reference to goods and services tax imposed in Singapore including any similar
tax which may be imposed in place thereof from time to time;
a “holding company” of a company
or corporation shall be construed as a reference to any company or corporation
of which the first-mentioned company or corporation is a
subsidiary;
“indebtedness” shall be
construed so as to include any obligation (whether incurred as principal or as
surety) for the payment or repayment of money, whether present or future, actual
or contingent;
a “law” shall be construed as any
law (including common or customary law), statute, constitution, decree,
judgment, treaty, regulation, directive, bye-law, order or any other legislative
measure of any government, supranational, local government, statutory or
regulatory body or court;
a “month” is a reference to a
period starting on one day in a calendar month and ending on the numerically
corresponding day in the next succeeding calendar month save that:
|
|
(a)
|
if
any such numerically corresponding day is not a Business Day, such period
shall end on the immediately succeeding Business Day to occur in that next
succeeding calendar month or, if none, it shall end on the immediately
preceding Business Day;
|
|
|
(b)
|
if
there is no numerically corresponding day in that next succeeding calendar
month, that period shall end on the last Business Day in that next
succeeding calendar month; and
|
- 12 -
|
|
(c)
|
if
an Interest Period for an Advance commences on the last Business Day of a
calendar month, that Interest Period shall end on the last Business Day in
the calendar month in which it is to
end,
|
(and
references to “months”
shall be construed accordingly);
a “person” shall be construed as
a reference to any person, firm, company, corporation, government, state or
agency of a state or any association or partnership (whether or not having
separate legal personality) of two or more of the foregoing;
“repay” (or any derivative form
thereof) shall, subject to any contrary indication, be construed to include
“prepay” (or, as the
case may be, the corresponding derivative form thereof);
a “subsidiary” of a company or
corporation shall be construed as a reference to any company or
corporation:
|
|
(a)
|
which
is controlled, directly or indirectly, by the first-mentioned company or
corporation;
|
|
|
(b)
|
more
than half the issued share capital of which is beneficially owned,
directly or indirectly, by the first-mentioned company or corporation;
or
|
|
|
(c)
|
which
is a subsidiary of another subsidiary of the first-mentioned company or
corporation
|
and, for
these purposes, a company or corporation shall be treated as being controlled by
another if that other company or corporation is able to direct its affairs
and/or to control the composition of its board of directors or equivalent
body;
a “successor” shall be construed
so as to include an assignee or successor in title of such party and any person
who under the laws of its jurisdiction of incorporation or domicile has assumed
the rights and obligations of such party under this Agreement or to which, under
such laws, such rights and obligations have been transferred;
“tax” shall be construed so as
to include any tax, levy, impost, duty or other charge of a similar nature
(including any penalty or interest payable in connection with any failure to pay
or any delay in paying any of the same); and
the
“winding-up”, “dissolution” or “administration” of a company
or corporation shall be construed so as to include any equivalent or analogous
proceedings under the law of the jurisdiction in which such company or
corporation is incorporated or any jurisdiction in which such company or
corporation carries on business including the seeking of liquidation,
winding-up, reorganisation, dissolution, administration, arrangement,
adjustment, protection or relief of debtors.
|
1.3
|
Currency
Symbols
|
“US$”, “dollars” and “US dollars” denote lawful
currency of the United States of America and “S$” and “Singapore dollars” denote
lawful currency of Singapore.
|
1.4
|
Agreements
and Statutes
|
Any
reference in this Agreement to:
- 13 -
|
|
1.4.1
|
a
“Finance Document”
or any other agreement or document shall be construed as a reference to
that Finance Document or, as the case may be, such other agreement or
document as the same may have been, or may from time to time be, amended,
varied, novated, supplemented, extended, restated (however fundamentally
and whether or not more onerously) or replaced and includes any change in
the purpose of, and any extension of or any increase in any facility or
the addition of any new facility under that Finance Document or, as the
case may be, such other agreement or
document.
|
|
|
1.4.2
|
a
statute or treaty shall be construed as a reference to such statute or
treaty as the same may have been, or may from time to time be, amended or,
in the case of a statute,
re-enacted.
|
|
1.5
|
Headings
|
Clause
and Schedule headings are for ease of reference only.
|
1.6
|
Time
|
Any
reference in this Agreement to a time of day shall, unless a contrary indication
appears, be a reference to Singapore time.
|
1.7
|
Third
Party Rights
|
|
|
1.7.1
|
Unless
expressly provided to the contrary in this Agreement, a person who is not
a party to this Agreement has no right under the Contracts (Rights of
Third Parties) Act, Chapter 53B of Singapore to enforce or to enjoy the
benefit of any term of this
Agreement.
|
|
|
1.7.2
|
Notwithstanding
any terms of this Agreement, the consent of any third party is not
required for any variation (including any release or compromise of any
liability under) or termination of this
Agreement.
|
|
2.
|
The
Facility
|
|
2.1
|
Grant
of the Facility
|
The Xxxxx
xxxxx to the Borrower, upon the terms and subject to the conditions hereof a
term loan facility in an aggregate amount of US$600,000,000.
|
2.2
|
Purpose
and Application
|
|
|
2.2.1
|
The
Facility is intended to be utilised to refinance any outstanding amounts
due to the Existing Lenders under the Existing Credit Agreement and/or (at
any time after all outstanding amounts owing under the Existing Credit
Agreement have been discharged) to finance capital expenditure and/or
general working capital (including trade related purposes) and,
accordingly, the Borrower shall apply all amounts raised by it hereunder
in or towards satisfaction of such
purposes.
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|
|
2.2.2
|
None
of the Finance Parties shall be bound to monitor or verify the application
of any amount borrowed pursuant to this
Agreement.
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- 14 -
|
2.3
|
Conditions
Precedent
|
Save as
the Banks may otherwise agree, the Borrower may not deliver the first Notice of
Drawdown unless the Facility Agent has received all of the documents and other
evidence listed in Schedule 3 (Conditions Precedent), the
requirement for which has not been waived by the Instructing Group and that each
is, in form and substance, satisfactory to the Facility Agent.
|
2.4
|
Finance
Parties' Obligations Several
|
The
obligations of each Finance Party under the Finance Documents are several and
the failure by a Finance Party to perform its obligations under the Finance
Documents shall not affect the obligations of the Borrower or the other Banks
towards any other party under the Finance Documents nor shall any Finance Party
be liable for the failure by any other Finance Party to perform its obligations
under the Finance Documents.
|
2.5
|
Finance
Parties’ Rights Several
|
The
rights of each Finance Party under or in connection with the Finance Documents
are several and any debt arising under the Finance Documents at any time from an
Obligor to a Finance Party shall be a separate and independent
debt. Each such party shall be entitled to protect and enforce its
individual rights arising out of this Agreement independently of any other party
(so that it shall not be necessary for any party hereto to be joined as an
additional party in any proceedings for this purpose).
|
3.
|
Utilisation
of the Facility
|
|
3.1
|
Drawdown
Conditions for Advances
|
An
Advance will be made by the Banks to the Borrower if:
|
|
3.1.1
|
not
more than 10 Business Days nor later than 3:00 p.m. four Business Days
(including the day on which the completed Notice of Drawdown is delivered
to the Facility Agent) before the proposed date for the making of such
Advance, the Facility Agent has received a completed Notice of Drawdown
signed by an authorised signatory of the
Borrower;
|
|
|
3.1.2
|
the
proposed date for the making of such Advance is a Business Day within the
Availability Period and (in the case of the first Advance) fall on or
before the date falling 60 days after the date of this
Agreement;
|
|
|
3.1.3
|
the
proposed date for the making of such Advance is not less than four
Business Days after the date upon which the previous Advance (if any) was
made;
|
|
|
3.1.4
|
the
proposed amount of such Advance is (a) (if less than the Available
Facility) an amount not less than US$10,000,000 and an integral multiple
of US$5,000,000 or (b) equal to the amount of the Available
Facility;
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|
|
3.1.5
|
the
interest rate applicable to such Advance during its first Interest Period
would not fall to be determined pursuant to Clause 6.1 (Market Disruption)
unless an alternative rate has been agreed upon in accordance with the
provisions of Clause 6.3 (Alternative
Rate);
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- 15 -
|
|
3.1.6
|
on
and as of the proposed date for the making of such Advance (a) no Event of
Default or Potential Event of Default has occurred and is continuing and
(b) the Repeated Representations and, if such Advance is the first Advance
made under the Facility, the Non-Repeated Representations are true in all
material respects; and
|
|
|
3.1.7
|
no
more than 15 Advances would be outstanding as a result of that
Advance.
|
|
3.2
|
Each
Bank’s Participation in Advances
|
Each Bank
will participate through its Facility Office in each Advance made pursuant to
Clause 3.1 (Drawdown
Conditions for Advances) in the proportion borne by its Available
Commitment to the Available Facility immediately prior to the making of that
Advance.
|
3.3
|
Reduction
of Available Commitment
|
If a
Bank’s Available Commitment is reduced in accordance with the terms hereof after
the Facility Agent has received the Notice of Drawdown for an Advance and such
reduction was not taken into account in the Available Facility, then the amount
of that Advance shall be reduced accordingly.
|
4.
|
Interest
Periods
|
|
4.1
|
Interest
Periods
|
The
period for which an Advance is outstanding shall be divided into successive
periods each of which (other than the first, which shall begin on the day such
Advance is made) shall start on the last day of the preceding
period.
|
4.2
|
Duration
|
The
duration of each Interest Period shall, save as otherwise provided herein, be
one, two, three or six months (or any other period less than six months and
ending on a Repayment Date), in each case as the Borrower may by not less than
four Business Days’ prior notice to the Facility Agent select, provided that:
|
|
4.2.1
|
if
the Borrower fails to give such notice of its selection in relation to an
Interest Period, the duration of that Interest Period shall, subject to
sub-clause 4.2.2, be one month;
and
|
|
|
4.2.2
|
the
Borrower shall select Interest Periods so as to ensure that each Repayment
Date coincides with the last day of the Interest Period(s) of an Advance
or Advances in an aggregate principal amount not less than the Repayment
Instalment due on that Repayment Date.
|
|
4.3
|
Consolidation
and division of Advances
|
|
|
4.3.1
|
If
two or more Interest Periods relating to Advances end on the same date
those Advances will be consolidated into, and treated as, a single Advance
on the last day of the Interest
Period.
|
|
|
4.3.2
|
The
Borrower may, by not less than four Business Days' notice to the Facility
Agent, direct that any Advance shall, at the beginning of any Interest
Period relating thereto, be divided into (and thereafter, save as
otherwise provided
|
- 16 -
|
|
|
herein,
treated in all respects as) two or more Advances in such amounts (in
aggregate, equalling the amount of the Advance being so divided) as shall
be specified by the Borrower in such notice, provided that the
Borrower shall not be entitled to make such a direction
if:
|
|
|
(a)
|
as
a result of so doing, there would be more than 15 outstanding Advances;
or
|
|
|
(b)
|
any
Advance thereby coming into existence would be of an amount less than
US$10,000,000.
|
|
5.
|
Payment
and Calculation of Interest
|
|
5.1
|
Payment
of Interest
|
On the
last day of each Interest Period the Borrower shall pay accrued interest on the
Advance to which such Interest Period relates.
|
5.2
|
Calculation
of Interest
|
The rate
of interest applicable to an Advance from time to time during an Interest Period
relating thereto shall be the rate per annum which is the sum of the Margin and
SIBOR on the Quotation Date therefor.
|
6.
|
Market
Disruption and Alternative Interest
Rates
|
|
6.1
|
Market
Disruption
|
If, in
relation to any Advance:
|
|
6.1.1
|
SIBOR
is to be determined by reference to Reference Banks and at or about 11.00
a.m. on the Quotation Date for the relevant Interest Period none or only
one of the Reference Banks supplies a rate for the purpose of determining
SIBOR for the relevant Interest Period;
or
|
|
|
6.1.2
|
before
the close of business in Singapore on the Quotation Date for such Advance
the Facility Agent has been notified by a Bank or each of a group of Banks
to whom in aggregate fifty per cent. or more of such Advance is owed (or,
in the case of a proposed Advance, if made, would be owed) that the SIBOR
rate does not accurately reflect the cost of funding its participation in
such Advance,
|
then, the
Facility Agent shall notify the other parties hereto of such event and
(notwithstanding anything to the contrary in this Agreement) Clause 6.2 (Substitute Interest Period and
Interest Rate) shall apply to such Advance if it is already
outstanding. If sub-clause 6.1.1 or 6.1.2 applies to a proposed
Advance, such Advance shall not be made unless an alternative rate has been
agreed under Clause 6.3 (Alternative
Rate).
|
6.2
|
Substitute
Interest Period and Interest Rate
|
If
sub-clause 6.1.1 of Clause 6.1 (Market Disruption) applies to
an Advance which is already outstanding the duration of the relevant Interest
Period shall be one month or such that it shall end on the next succeeding
Repayment Date, whichever period is shorter. If either sub-clause
6.1.1 or 6.1.2 of Clause 6.1 (Market Disruption) applies to
an Advance
- 17 -
which is
already outstanding, the rate of interest applicable to such Advance during the
relevant Interest Period shall (subject to any agreement reached pursuant to
Clause 6.3 (Alternative
Rate)) be the rate per annum which is the sum of:
|
|
6.2.1
|
the
Margin;
|
|
|
6.2.2
|
the
rate per annum determined by the Facility Agent to be the weighted average
(rounded upwards to five decimal places) of the rates notified by each
Bank to the Facility Agent before the last day of such Interest Period to
be those which express as a percentage rate per annum the cost to each
Bank of funding from whatever sources it may reasonably select its portion
of such Advance during such Interest
Period.
|
The
Facility Agent shall from time to time, upon the request of the Borrower,
provide the Borrower with the rates of interest of each Bank, determined in
accordance with this Clause 6.2.
|
6.3
|
Alternative
Rate
|
If (a)
either of those events mentioned in sub-clauses 6.1.1 and 6.1.2 of
Clause 6.1 (Market
Disruption) occurs in relation to an Advance or (b) by reason
of circumstances affecting the Singapore interbank market during any period of
three consecutive Business Days SIBOR is not available for dollars to prime
banks in the Singapore interbank market, then if the Facility Agent or the
Borrower so requires, the Facility Agent and the Borrower shall enter into
negotiations with a view to agreeing to a substitute basis (i) for
determining the rates of interest from time to time applicable to the Advances
and/or (ii) upon which the Advances may be maintained (whether in dollars
or some other currency) thereafter and any such substitute basis that is agreed
shall take effect in accordance with its terms and be binding on each party
hereto, provided that
the Facility Agent may not agree to any such substitute basis without the prior
consent of each Bank.
|
7.
|
Notification
|
|
7.1
|
Advances
|
Not less
than three Business Days before the proposed date for the making of an Advance,
the Facility Agent shall notify each Bank of the proposed amount of the relevant
Advance, the proposed length of the relevant Interest Period and the aggregate
principal amount of the relevant Advance allocated to such Bank pursuant to
Clause 3.2 (Each Bank’s
Participation in
Advances) and not less than three Business Days before the first day of
an Interest Period, the Facility Agent shall notify each Bank of the proposed
length of that Interest Period.
|
7.2
|
Interest
Rate Determination
|
The
Facility Agent shall promptly notify the Borrower and the Banks of each
determination of SIBOR or substitute or alternative rate of interest determined
pursuant to Clause 6 (Market
Disruption and Alternative Interest Rates), if applicable.
- 18 -
|
7.3
|
Changes
to Advances or Interest Rates
|
The
Facility Agent shall promptly notify the Borrower and the Banks of any change to
(a) the proposed length of an Interest Period or (b) any interest rate
occasioned by the operation of Clause 6 (Market Disruption and Alternative
Interest Rates).
|
8.
|
Repayment
of the Facility
|
On each
Repayment Date set out below, the Borrower shall repay the Loan in instalments
in the amounts set out below:
|
Repayment
Date
|
Repayment
Instalment
|
|
27
May 2009
|
1/24
of Relevant Loan Balance
|
|
27
August 2009
|
1/24
of Relevant Loan Balance
|
|
27
November 2009
|
1/12 of Relevant Loan
Balance
|
|
27
February 2010
|
1/12
of Relevant Loan
Balance
|
|
27
May 2010
|
1/12
of Relevant Loan Balance
|
|
27
August 2010
|
1/12
of Relevant Loan Balance
|
|
27
November 2010
|
1/12
of Relevant Loan Balance
|
|
27
February 2011
|
1/12
of Relevant Loan Balance
|
|
27
May 2011
|
1/12
of Relevant Loan Balance
|
|
27
August 2011
|
1/12
of Relevant Loan Balance
|
|
27
November 2011
|
1/12
of Relevant Loan Balance
|
|
27
February 2012
|
1/12
of Relevant Loan Balance
|
|
25
May 2012
|
1/12
of Relevant Loan Balance
|
|
9.
|
Prepayment
and Cancellation
|
|
9.1
|
Voluntary
Prepayment and Cancellation
|
|
|
9.1.1
|
The
Borrower may, if it has given to the Facility Agent not less than five
Business Days’ prior notice to that effect (and such notice to be given at
or before 10.00 a.m. (Singapore time) on the day of such notice), prepay
the whole of any Advance or any part of any Advance (being a minimum
amount of US$10,000,000 and an integral multiple of US$5,000,000) on the
last day of any Interest Period
|
- 19 -
|
|
|
(including
during the Availability Period) relating to that Advance or, subject to
Clause 22.4 (Break
Costs), on any other date (in each case) without prepayment fee or
premium. Any prepayment so made during the Availability Period
shall be applied towards satisfying the Borrower's obligations under
Clause 8 (Repayment of
the Facility) rateably. Any prepayment so made after the
Availability Period shall be applied towards satisfying the Borrower's
repayment obligations under Clause 8 (Repayment of the
Facility) in inverse chronological order. Amounts of any
Advance prepaid may not be redrawn.
|
|
|
9.1.2
|
The
Borrower may, if it has given to the Facility Agent not less than five
Business Days’ prior notice to that effect (and such notice to be given at
or before 10.00 a.m. (Singapore time) on the day of such notice), cancel
the whole or any part of the Available Facility (being a minimum amount of
US$10,000,000 and an integral multiple of US$5,000,000). Any cancellation
under this Clause 9.1.2 shall reduce the Commitments of the Banks
rateably.
|
|
9.2
|
Mandatory
Prepayment of the Loan
|
Without
prejudice to the terms of subordination of Subordinated Debt, if any
Subordinated Debt falls due to be redeemed, discharged, repaid or prepaid (as a
result of acceleration, mandatory prepayment or otherwise) on or prior to the
Final Maturity Date or if earlier, the date on which all amounts due under this
Agreement fall due to be repaid or prepaid, the Borrower shall immediately
notify the Facility Agent and, if the Facility Agent so requires, shall on such
date as the Facility Agent may specify, and prior to redeeming, discharging,
repaying or prepaying such Subordinated Debt, prepay the Advances in full
together with accrued interest thereon and all other amounts owing to the
Finance Parties hereunder without prepayment fee or premium. Amounts of the
Advances prepaid may not be redrawn.
|
9.3
|
Notice
of Prepayment
|
Any
notice of prepayment given by the Borrower pursuant to Clause 9.1 (Voluntary Prepayment of the
Loan) shall be irrevocable, shall specify the date upon which such
prepayment is to be made and the amount of such prepayment and shall oblige the
Borrower to make such prepayment on such date together with accrued
interest.
|
9.4
|
Repayment
of a Bank’s Share of the Loan
|
If:
|
|
9.4.1
|
any
sum payable to any Bank by the Borrower is required to be increased
pursuant to Clause 10.1 (Tax
Gross-up);
|
|
|
9.4.2
|
any
Bank claims indemnification from the Borrower under Clause 10.2
(Tax Indemnity)
or Clause 12.1 (Increased Costs);
or
|
|
|
9.4.3
|
the
rate notified by a Bank in relation to a particular Interest Period under
Clause 6.2 (Substitute
Interest Period and Interest Rate) is higher than the rate per
annum determined by the Facility Agent to be the weighted average (rounded
upwards to five decimal places) of the rates notified by each Bank to the
Facility Agent (but disregarding the highest and the lowest rates so
notified where there are more than three such rates) before the last day
of such Interest Period to be
|
- 20 -
|
|
those
which express as a percentage rate per annum the cost to each Bank of
funding from whatever sources it may select its portion of the relevant
Advance during such Interest Period,
|
the
Borrower may, whilst such circumstance continues, give the Facility Agent at
least five Business Days notice (which notice shall be irrevocable) of
cancellation of the Commitment of that Bank and/or of its intention to repay
such Bank’s share of the Loan without any prepayment fee or
premium. On receipt of a notice referred to in this Clause, the
Commitment of that Bank shall immediately be reduced to zero. On the last day of
each current Interest Period the Borrower shall repay such Bank’s portion of the
Advance to which such Interest Period relates. Any repayment of an Advance so
made after the last day of the Availability Period shall reduce rateably the
remaining obligations of the Borrower under Clause 8 (Repayment of the
Facility).
|
9.5
|
No
Further Advances
|
A Bank
for whose account a repayment is to be made under Clause 9.4 (Repayment of a Bank’s Share of the
Loan) shall not be obliged to participate in the making of Advances on or
after the date upon which the Facility Agent receives the Borrower’s notice of
its intention to repay such Bank’s share of the Loan, and such Bank’s Available
Commitment on such date shall be reduced to zero.
|
9.6
|
No
Other Repayments
|
The
Borrower shall not repay all or any part of the Loan except at the times and in
the manner expressly provided for in this Agreement.
|
9.7
|
Reborrowing
of the Facility
|
The
Borrower shall not be entitled to reborrow any amount of the Facility which is
repaid.
|
10.
|
Taxes
|
|
10.1
|
Tax
Gross-up
|
All
payments to be made by the Borrower to any Finance Party under the Finance
Documents shall be made free and clear of and without deduction for or on
account of tax imposed in or required by Singapore unless the Borrower is
required to make such a payment subject to the deduction or withholding of such
tax, in which case the sum payable by the Borrower (in respect of which such
deduction or withholding is required to be made) shall be increased to the
extent necessary to ensure that such Finance Party receives a sum net of any
deduction or withholding equal to the sum which it would have received had no
such deduction or withholding been made or required to be made.
|
10.2
|
Tax
Indemnity
|
Without
prejudice to Clause 10.1 (Tax Gross-up), if any Finance
Party is required to make any payment of or on account of tax on or in relation
to any sum received or receivable under the Finance Documents (including any sum
deemed for purposes of tax to be received or receivable by such Finance Party
whether or not actually received or receivable) or if any liability in respect
of any such payment is asserted, imposed, levied or assessed against any Finance
Party, the Borrower shall, within five Business Days of
- 21 -
demand of
the Facility Agent, promptly indemnify the Finance Party which suffers a loss or
liability as a result against such payment or liability, together with any
interest, costs and expenses payable or incurred in connection therewith, provided that this Clause 10.2
shall not apply to:
|
10.2.1
|
any
tax imposed on and calculated by reference to the net income actually
received or receivable by such Finance Party (but, for the avoidance of
doubt, not including any sum deemed for purposes of tax to be received or
receivable by such Finance Party but not actually receivable) by the
jurisdiction in which such Finance Party is incorporated;
or
|
|
10.2.2
|
any
tax imposed on and calculated by reference to the net income of the
Facility Office of such Finance Party actually received or receivable by
such Finance Party (but, for the avoidance of doubt, not including any sum
deemed for purposes of tax to be received or receivable by such Finance
Party but not actually receivable) by the jurisdiction in which its
Facility Office is located.
|
|
10.3
|
Claims
by Banks
|
A Bank
intending to make a claim pursuant to Clause 10.2 (Tax Indemnity) shall notify
the Facility Agent of the event giving rise to the claim, whereupon the Facility
Agent shall notify the Borrower thereof and if the Facility Agent and/or the
Borrower, within five Business Days of their receipt of such notification,
notify such Bank requiring it to do so, such Bank shall provide a certificate of
a responsible officer to such effect together with either (a) a legal opinion
(which may be provided by its internal counsel) or (b) an opinion of external
auditors, supporting such claim (and the reasonable costs of obtaining an
opinion from any external counsel or auditors shall be paid by the Borrower on
demand), whereupon the Facility Agent shall promptly provide the Borrower with a
copy of such certificate and opinion, if required, provided that nothing herein
shall require such Bank to disclose any confidential information relating to the
organisation of its affairs.
|
10.4
|
GST
|
The
Borrower shall also pay to each relevant Finance Party, within five Business
Days of demand, in addition to any amount payable by the Borrower to that
relevant Finance Party under a Finance Document, any GST payable in respect of
that amount (and references in that Finance Document to that amount shall be
deemed to include any such GST payable in addition to it).
|
11.
|
Tax
Receipts
|
|
11.1
|
Notification
of Requirement to Deduct Tax
|
If, at
any time, the Borrower is required by law to make any deduction or withholding
from any sum payable by it under the Finance Documents (or if thereafter there
is any change in the rates at which or the manner in which such deductions or
withholdings are calculated), the Borrower shall promptly notify the Facility
Agent. Similarly, a Bank shall notify the Facility Agent on becoming so aware in
respect of a payment payable to that Bank. If the Facility Agent receives such
notification from a Bank, it shall notify the Borrower.
- 22 -
|
11.2
|
Evidence
of Payment of Tax
|
If the
Borrower makes any payment under the Finance Documents in respect of which it is
required to make any deduction or withholding, it shall pay the full amount
required to be deducted or withheld to the relevant taxation or other authority
within the time allowed for such payment under applicable law and shall deliver
to the Facility Agent for each Bank, within 30 days after it has made such
payment to the applicable authority, an original receipt (or a certified copy
thereof) issued by such authority evidencing the payment to such authority of
all amounts so required to be deducted or withheld in respect of that Bank’s
share of such payment.
|
11.3
|
Tax
Credit Payment
|
If the
Borrower makes a payment under Clause 10 (Taxes) for the account of any
person and such person determines in its reasonable business judgement that it
has received or been granted a credit against or relief or remission for, or
repayment of, any tax paid or payable by it in respect of or calculated with
reference to such payment or the deduction or withholding giving rise thereto,
such person shall, to the extent that it can do so without prejudice to the
retention of the amount of such credit, relief, remission or repayment, within
10 Business Days of such determination, pay to the Borrower such amount as such
person shall, in its reasonable business judgement, have determined to be
attributable to such payment, deduction or withholding. Any payment
made by a person under this Clause 11.3 shall be prima facie evidence of the
amount due to the Borrower under this Clause 11.3 and, absent manifest error,
shall be accepted by the Borrower in full and final settlement of its rights of
reimbursement under this Clause 11.3. Nothing herein contained shall
interfere with the rights of a person to arrange its tax affairs in whatever
manner it thinks fit and, in particular, no person shall be under any obligation
to claim credit, relief, remission or repayment from or against its corporate
profits or similar tax liability in respect of the amount of such payment,
deduction or withholding in priority to any other claims, reliefs, remissions,
credit or deductions available to it, nor oblige any person to disclose any
information relating to its tax affairs or any computation in respect
thereof.
|
11.4
|
Certification
|
Notwithstanding
anything to the contrary, the Borrower shall not be required under Clause 10.1
(Tax Gross-up) to
increase any sum payable by the Borrower to any Finance Party hereunder, or
under Clause 10.2 (Tax
Indemnity) to indemnify any Finance Party against such payments and
liabilities as are referred to therein, to the extent such person, any other
person on such person's behalf or the Facility Agent has failed to comply with
any certification, identification or other similar requirement under applicable
law or regulation necessary to establish entitlement to exemption from or
reduction of any relevant deduction, withholding, payment or
liability.
|
12.
|
Increased
Costs
|
|
12.1
|
Increased
Costs
|
If at any
time after the date hereof, by reason of (a) any change in law or in its
interpretation or administration by any body charged with the interpretation or
administration thereof or by any court and/or (b) compliance with any new or
revised
- 23 -
request
from or any new or revised requirement of any central bank or other fiscal,
monetary or other authority whether or not having the force of law but, if not
having the force of law, only if compliance with such request or requirement is
in accordance with the general practice of persons to whom such request or
requirement is intended to apply (including, without limitation, a request or
requirement which affects the manner in which a Bank or any holding company of
such Bank is required to or does maintain capital resources having regard to
such Bank's obligations under this Agreement and to amounts owing to it
thereunder):
|
12.1.1
|
a
Bank or any holding company of such Bank incurs a cost as a result of such
Bank having entered into and/or performing its obligations under this
Agreement and/or assuming or maintaining a commitment under this Agreement
and/or making one or more Advances
thereunder;
|
|
12.1.2
|
a
Bank or any holding company of such Bank is unable to obtain the rate of
return on its overall capital which it would have been able to obtain but
for such Bank having entered into and/or performing its obligations and/or
assuming or maintaining a commitment under this Agreement and/or making
one or more Advances thereunder under such
circumstances;
|
|
12.1.3
|
there
is any increase in the cost to a Bank or any holding company of such Bank
of funding or maintaining all or any of the advances comprised in a class
of advances formed by or including the Advances made or to be made by such
Bank under this Agreement; or
|
|
12.1.4
|
subject
to Clause 12.3 (Exclusions), a Bank or
any holding company of such Bank becomes liable to make any payment on
account of tax or otherwise (not being a tax imposed on the net income of
such Bank's Facility Office by the jurisdiction in which it is
incorporated or in which its Facility Office is located) or becomes liable
and subject to an assertion, imposition, levy or assessment on account of
tax or otherwise (not being such a tax as aforesaid) on or calculated by
reference to the amount of the advances made or to be made by such Bank
hereunder and/or to any sum received or receivable by it
hereunder,
|
then the
Borrower shall, from time to time on demand of the Facility Agent, promptly pay
to the Facility Agent for the account of that Bank amounts sufficient to
indemnify that Bank or any such holding company against, as the case may be, (1)
such cost, (2) such reduction in such rate of return (or such proportion of such
reduction as is, in the reasonable opinion of that Bank, attributable to its
obligations hereunder), (3) such increased cost (or such proportion of such
increased cost as is, in the opinion of that Bank, attributable to its funding
or maintaining Advances) or (4) such liability.
|
12.2
|
Increased
Costs Claims
|
A Bank
intending to make a claim pursuant to Clause 12.1 (Increased Costs) shall notify
the Facility Agent of the event giving rise to such claim, whereupon the
Facility Agent shall notify the Borrower thereof and if the Facility Agent
and/or the Borrower, within five Business Days of their receipt of such
notification, notify such Bank requiring it to do so, such Bank shall provide a
certificate of a responsible officer to such effect together with either (a) a
legal opinion (which may be provided by its internal counsel) or (b) an opinion
from external auditors supporting such claim (and the reasonable costs of
obtaining an
- 24 -
opinion
from an external counsel or auditors shall be paid by the Borrower on demand),
whereupon the Facility Agent shall promptly provide the Borrower with a copy of
such certification and opinion, if required, provided that nothing herein
shall require such Bank to disclose any confidential information relating to the
organisation of its affairs.
|
12.3
|
Exclusions
|
Notwithstanding
the foregoing provisions of this Clause 12, no Bank shall be entitled to make
any claim under this Clause 12 in respect of any cost, increased cost or
liability compensated by Clause 10 (Taxes).
|
13.
|
Illegality
|
If, at
any time, it is or will become unlawful for a Bank to make, fund or allow to
remain outstanding all or part of its share of the Advances, then that Bank
shall, promptly after becoming aware of the same, deliver to the Borrower
through the Facility Agent a notice to that effect and:
|
13.1.1
|
such
Bank shall not thereafter be obliged to participate in the making of any
Advances and the amount of its Available Commitment shall be immediately
reduced to zero; and
|
|
13.1.2
|
if
the Facility Agent on behalf of such Bank so requires, the Borrower shall
on such date as the Facility Agent shall have specified repay (without
prepayment fee or penalty) such Bank’s share of any outstanding Advances
as shall be necessary to comply with, or as required by, the relevant law,
regulation or directive, together with accrued interest thereon and all
other amounts owing to such Bank under the Finance Documents in respect of
the amount repaid and any repayment of Advances so made shall reduce
rateably the remaining obligations of the Borrower under Clause 8
(Repayment of the
Facility).
|
|
14.
|
Mitigation
|
If, in
respect of any Bank, circumstances arise which would or would upon the giving of
notice result in:
|
14.1.1
|
an
increase in any sum payable to it or for its account pursuant to
Clause 10.1 (Tax
Gross-up);
|
|
14.1.2
|
a
claim for indemnification pursuant to Clause 10.2 (Tax Indemnity) or
Clause 12.1 (Increased
Costs); or
|
|
14.1.3
|
the
reduction of its Available Commitment to zero or any repayment to be made
by the Borrower pursuant to Clause 13 (Illegality),
|
then,
without in any way limiting, reducing or otherwise qualifying the rights of such
Bank or the obligations of the Borrower under any of the Clauses referred to
above, such Bank shall promptly upon becoming aware of such circumstances notify
the Facility Agent and the Facility Agent shall promptly notify the Borrower
thereof and such Bank shall, in consultation with the Facility Agent and the
Borrower, for a period of 30 days, take such reasonable steps as may be
reasonably open to it to mitigate the effects of such circumstances (including
the transfer of its rights and obligations hereunder to another
- 25 -
Facility
Office or another financial institution), provided that such Bank shall
be under no obligation to take any such action if to do so would or might in its
opinion result in such Bank incurring any material cost, expenses or liability
or have an adverse effect upon its business, operations or financial condition
or would otherwise be prejudicial to it.
|
15.
|
Representations
|
The
Borrower makes the representations and warranties set out in this Clause 15
on the date hereof and on the date the first Advance is made hereunder and
acknowledges that the Finance Parties have entered into this Agreement in
reliance on those representations and warranties. The Repeated
Representations (being each of the representations set out in Clause 15.1 (Status) to Clause
15.9 (No
Defaults)) shall be deemed to be repeated by the Borrower by reference to
the facts and circumstances then existing on the date on which each Advance is
made or is to be made.
|
15.1
|
Status
|
It is a
corporation duly incorporated under the laws of Singapore.
|
15.2
|
Power
and authority
|
It has
the power to enter into, perform and deliver, and has taken all necessary action
to authorise its entry into, performance and delivery of, the Finance Documents
and the transactions contemplated by those Finance Documents.
|
15.3
|
Binding
Obligations
|
Subject
to the qualifications set out in the legal opinion of the Singapore counsel to
the Finance Parties to be provided pursuant to Clause 2.3 (Conditions Precedent), the
obligations expressed to be assumed by it in the Finance Documents to which it
is party are legal and valid obligations binding on it and enforceable against
it.
|
15.4
|
Execution
of this Agreement
|
Its
execution of the Finance Documents to which it is party and its exercise of its
rights and performance of its obligations under the Finance Documents to which
it is party do not:
|
15.4.1
|
conflict
with any material agreement, mortgage, bond or other instrument or treaty
to which it is a party or which is binding upon it or any of its assets to
an extent or in a manner which could reasonably be expected to have a
Material Adverse Effect;
|
|
15.4.2
|
conflict
with its Memorandum and Articles of
Association; or
|
|
15.4.3
|
conflict
with any applicable law, regulation or official or judicial order which is
binding upon it, save for conflicts which would not have a
Material Adverse Effect.
|
|
15.5
|
No
Material Proceedings
|
No action
or administrative proceeding of or before any court or agency which would
reasonably be expected to have a Material Adverse Effect has been started or to
the best of its knowledge threatened, save as disclosed to the Facility
Agent.
- 26 -
|
15.6
|
Encumbrances
|
Save for
Permitted Encumbrances, no Encumbrance exists over all or any of the present or
future revenues or assets of the Borrower.
|
15.7
|
Consents
|
All
governmental licences and consents currently required to enable it to carry on
its business remain in full force and effect except if failure to obtain or
maintain the same would not reasonably be expected to have a Material Adverse
Effect.
|
15.8
|
No
Infringement
|
To the
best of its knowledge and belief, the Borrower's operations as provided for in
the Core Commercial Agreements do not infringe any third party intellectual
property rights except in such a manner as would not reasonably be expected to
have a Material Adverse Effect.
|
15.9
|
No
Defaults
|
No Event
of Default or Potential Event of Default has occurred and is
continuing.
|
15.10
|
No
Winding-up
|
It has
not taken any corporate action nor (to the best of its knowledge and belief)
have any other steps been taken or legal proceedings been started or threatened
against it for its winding-up, dissolution, administration or re-organisation or
for the appointment of a receiver, administrator, judicial manager, conservator,
custodian, trustee or similar officer of it or of any or all of its assets or
revenues and no creditors' process described in Clause 19.9 (Execution or Distress), has
been taken or, to the knowledge of the Borrower, threatened in relation to the
Borrower, and none of the circumstances described in Clause 19.7 (Insolvency and Rescheduling)
applies to the Borrower.
|
15.11
|
No
Material Defaults
|
It is not
in breach of or in default under any agreement to which it is a party or which
is binding on it or any of its assets to an extent or in a manner which would
reasonably be expected to have a Material Adverse Effect.
|
15.12
|
Original
Financial Statements
|
The
Original Financial Statements:
|
15.12.1
|
were
prepared in accordance with accounting principles generally accepted in
Singapore and consistently applied;
and
|
|
15.12.2
|
save
as disclosed therein and in conjunction with the notes thereto, give a
true and fair view of the financial condition and operations of the
Borrower during the relevant financial
year.
|
|
15.13
|
No
Material Adverse Change
|
Save as
previously disclosed to the Facility Agent and the Banks prior to the date
hereof, since 30 August 2007 (being the date the most recent audited financial
statements were
- 27 -
stated to
be prepared), there has been no material adverse change in the business or
financial condition of the Borrower.
|
15.14
|
Information
Memorandum
|
To the
best of the Borrower's knowledge and belief (a) the factual information
regarding the Borrower contained in the Information Memorandum and in the
appendices referred to therein and in all explanations in writing supplied
subsequently (but prior to the date hereof) by the Borrower to the Facility
Agent, the Original Mandated Lead Arrangers and the Banks in connection with
such information were, in each case, as at the relevant date(s) on which they
were made true and accurate in all material aspects, (b) none of the other
factual information regarding the Borrower in the Information Memorandum is
incorrect or misleading in any material aspect, (c) the estimates, projections,
summaries and assumptions supplied by the Borrower in the Information Memorandum
were made in good faith based upon the knowledge of the Borrower and the
circumstances existing at the date of the Information Memorandum and (d) there
are no material facts or circumstances or changes thereto regarding the Borrower
that have not been disclosed to the Facility Agent, the Original Mandated Lead
Arrangers and the Banks and which would, if disclosed, reasonably be expected to
adversely affect the decision of a person considering whether or not to provide
finance to the Borrower at the date hereof, provided that estimates, summaries,
projections and assumptions shall not be considered to constitute factual
information for the purposes of this Clause 15.14.
|
15.15
|
Validity
and Admissibility in Evidence
|
Subject
to Clause 15.17 (Filing and
Stamp Taxes) and to the qualifications set out in the legal opinion of
Singapore counsel to the Finance Parties to be provided pursuant to Clause 2.3
(Conditions Precedent),
all acts, conditions and things required to be done, fulfilled and performed by
any person (other than the Finance Parties) in order (a) to enable it lawfully
to enter into, exercise its rights under and perform and comply with the
obligations expressed to be assumed by it in the Finance Documents to which it
is a party, (b) to ensure that the obligations expressed to be assumed by it in
the Finance Documents to which it is a party are legal, valid, binding and
enforceable and (c) to make the Finance Documents to which it is a party
admissible in evidence in its jurisdiction of incorporation have been done,
fulfilled and performed.
|
15.16
|
Claims
at least Pari Passu
|
Under the
laws of Singapore in force at the date hereof, the claims of the Finance Parties
against it under the Finance Documents will rank at least pari passu with the claims of
all its other unsecured and unsubordinated creditors save for:
|
15.16.1
|
indebtedness
arising out of the normal course of trading which is subject to rights of
set-off which arise in each case by operation of law;
and
|
|
15.16.2
|
indebtedness
preferred solely by laws of general application;
and
|
|
15.16.3
|
indebtedness
arising pursuant to the Existing Credit Agreement or the Existing Security
Documents,
|
and,
subject as aforesaid and to the security interests created by the Existing
Security Documents, the security interests created by the Security Documents
constitute first
- 28 -
ranking
security interests over the assets which are expressed to be subject of the
security thereunder.
|
15.17
|
Filing
and Stamp Taxes
|
Under the
laws of Singapore in force at the date hereof, it is not necessary that the
Finance Documents be filed, recorded or enrolled with any court or other
authority in such jurisdiction or that any stamp, registration or similar tax be
paid on or in relation to the Finance Documents save that this Agreement and
each of the Security Documents may be subject to payment of stamp duty of up to
S$500 to be effected (where applicable, within the period prescribed by statute)
and where any Security Document creates a charge to which Section 131 of the
Companies Act, Chapter 50 of Singapore applies, a statement containing
particulars of charge shall be lodged with the Accounting and Corporate
Regulatory Authority in Singapore for registration against the Borrower within
30 days after the creation of the security thereunder.
|
15.18
|
Environmental
Compliance
|
The
Borrower has duly performed and observed in all material respects all
Environmental Law, Environmental Permits and all other material covenants,
conditions, restrictions or agreements directly or indirectly concerned with any
contamination, pollution or waste or the release or discharge of any toxic or
hazardous substance in connection with any real property which is or was at any
time owned, leased or occupied by the Borrower or on which the Borrower has
conducted any activity where failure to do so would reasonably be expected to
have a Material Adverse Effect.
|
15.19
|
Environmental
Claims
|
No
Environmental Claim (other than those of a frivolous or vexatious nature) has
been commenced or (to the best of the Borrower’s knowledge and belief) is
threatened against the Borrower where such claim would be reasonably likely, if
determined against the Borrower, to have a Material Adverse Effect.
|
15.20
|
No
Immunity
|
In any
proceedings taken in its jurisdiction of incorporation in relation to any of the
Finance Documents to which it is party, it will not be entitled to claim for
itself or any of its assets immunity from suit, execution, attachment or other
legal process.
|
15.21
|
Private
and Commercial Acts
|
Its
execution of each of the Finance Documents to which it is party constitutes, and
its exercise of its rights and performance of its obligations thereunder will
constitute, private and commercial acts done and performed for private and
commercial purposes.
|
15.22
|
Ownership
of the Borrower
|
Micron
directly or indirectly owns not less than 51 per cent. of the issued share
capital of the Borrower.
- 29 -
|
15.23
|
No
Subsidiaries
|
The
Borrower does not have any subsidiaries other than those contemplated under
Clause 18.20 (Mergers and
Subsidiaries) and which have been advised to the Facility Agent prior to
the date hereof.
|
15.24
|
Payments
of Taxes
|
All tax
returns and reports of the Borrower required to be filed by it have been duly
filed and all taxes, assessments, fees, central provident fund contributions and
other governmental charges upon it and its properties, assets and income which
are shown on such returns as due and payable have been paid when due and payable
(all grace periods as permitted by the relevant authorities having been taken
into account) except where non-filing or non-payment could not reasonably be
expected to have a Material Adverse Effect or is due to a bona fide dispute which is
contested in good faith and in respect of which appropriate reserves have been
made.
|
16.
|
Financial
Information and other information
|
|
16.1
|
Annual
Statements
|
The
Borrower shall as soon as the same become available, but in any event within
150 days after the end of each of its financial years, deliver to the
Facility Agent in sufficient copies for the Banks its audited financial
statements for such financial year prepared in US dollars (or another currency
if so required as a result of changes in accounting standards applicable to the
Borrower, provided that
the Facility Agent is given sufficient information as may reasonably be required
by it to make an accurate comparison between the financial information indicated
by those audited financial statements and those prepared in US dollars), audited
by PricewaterhouseCoopers or such other auditors reasonably acceptable to the
Facility Agent.
|
16.2
|
Quarterly
Statements
|
The
Borrower shall as soon as the same become available but in any event within 30
days after the end of each quarter of each of its financial years deliver to the
Facility Agent in sufficient copies for the Banks unaudited financial statements
prepared in US dollars for such period.
|
16.3
|
Requirements
as to Financial Statements
|
The
Borrower shall ensure that each set of financial statements delivered by it
pursuant to this Clause 16 is:
|
16.3.1
|
prepared
on the same basis as was used in the preparation of the Original Financial
Statements and in accordance with accounting principles generally accepted
in Singapore and consistently applied;
and
|
|
16.3.2
|
accompanied
by a statement signed by any director of the Borrower or the President or
Vice President, Finance of the Borrower as giving a true and fair view of
its financial condition as at the end of the period to which those
financial statements relate and of the results of its operations during
such period.
|
- 30 -
|
16.4
|
Compliance
Certificates
|
The
Borrower shall ensure that each set of financial statements delivered by it
pursuant to Clause 16.2 (Quarterly Statements) is
accompanied by a Compliance Certificate of the President or Vice President,
Finance, company secretary or other duly authorised officer of the Borrower
confirming whether or not the financial condition covenants set out in Clause
17.1 (Financial
Condition) have been met and the aggregate amount of capital expenditure
incurred by the Borrower in the immediately preceding financial quarter of the
Borrower's financial year, each as evidenced by the quarterly financial
statements referred to in Clause 16.2 (Quarterly Statements),
together with the aggregate amount of capital expenditure projected to be
incurred by the Borrower and the projected cash flow of the Borrower and the
financial projection of the Borrower in each case in the then current and
immediately following financial quarter of the Borrower's financial
year.
|
16.5
|
Non-extension
Event
|
The
Borrower shall notify the Facility Agent of the occurrence of a Non-extension
Event no later than five Business Days of its receipt of any written notice
given to it in relation to a Non-extension Event.
|
16.6
|
Other
Information
|
The
Borrower shall from time to time on the request of the Facility Agent furnish
the Facility Agent with such information about the business and financial
condition of the Borrower and/or the Project as the Facility Agent may
reasonably require.
|
17.
|
Financial
Condition
|
|
17.1
|
Financial
Condition
|
The
Borrower shall ensure that its financial condition shall be such
that:
|
17.1.1
|
the
ratio of its Net Debt to Equity, measured at the end of each quarter of
its financial years and as evidenced by its then unaudited quarterly
financial statements prepared in US dollars for that quarter, is (a) for
each quarter ending on or before 3 September 2009, no more than 0.8:1 and
(b) for each quarter ending on or after 4 September 2009, no more than
0.5:1; and
|
|
17.1.2
|
its
Liquidity Ratio, measured at the end of each quarter of its financial
years and as evidenced by its then unaudited quarterly financial
statements prepared in US dollars for that quarter, is at least 1.2:1;
and
|
|
17.1.3
|
its
DSCR, measured at the end of each quarter of its financial years and as
evidenced by financial projections (prepared by the Borrower and delivered
to the Facility Agent pursuant to Clause 16.4 (Compliance
Certificates)), is at least
1.1:1.
|
|
17.2
|
Financial
Definitions
|
In
Clause 17.1 (Financial
Condition) the following terms have the following meanings.
|
17.2.1
|
“Equity”, measured at the
end of each quarter of its financial years and as evidenced by its
quarterly financial statement for that quarter referred to in sub-clause
17.1.1 of Clause 17.1 (Financial Condition),
means the amount of paid up
|
- 31 -
|
|
share
capital, retained earnings and capital reserves as shown in such financial
statement together with the principal amount of any Subordinated Debt made
available by the Shareholders and/or the parties to the Shareholders’
Agreement then outstanding;
|
|
17.2.2
|
“Net Debt” means Total
Debt less the cash balances (including bank and time deposits) (the “Cash Balances”) of the
Borrower, including those deposited in the Debt Service Deposit Accounts,
but excluding a minimum retained working capital amount of
US$20,000,000;
|
|
17.2.3
|
“Total Debt”, measured at
the end of each quarter of its financial years and as evidenced by its
quarterly financial statement for that quarter referred to in sub-clause
17.1.1 of Clause 17.1 (Financial Condition),
means the aggregate amount of Indebtedness For Borrowed Money which bears
interest or payments in the nature of interest or on which interest or
payments in the nature of interest is chargeable, then outstanding (both
principal and accrued interest) including indebtedness under all Asset
Based Financing but excluding that arising under operating leases,
guarantees or contingent liabilities of the
Borrower;
|
|
17.2.4
|
“Liquidity Ratio”
measured at the end of each quarter of its financial years and as
evidenced by its quarterly financial statement for that quarter referred
to in sub-clause 17.1.2 of Clause 17.1 (Financial Condition),
means the ratio of:
|
|
|
(a)
|
the
sum of (i) opening Cash Balances of the Borrower on the date two quarters
prior to the date of that quarterly financial statement, (ii) net amounts
disbursed to the Borrower under the Facility (being amounts disbursed less
amounts repaid other than scheduled repayments) during such preceding two
quarters, (iii) Equity injected during such preceding two quarters
(including Subordinated Debt made available by the Shareholders and/or the
parties to the Shareholders’ Agreement and outstanding during such
preceding two quarters but for the avoidance of doubt, excluding
capitalised retained earnings) and (iv) net profit before depreciation and
amortisation, interest expenses (including under Asset Based Financing
(other than operating leases)) (“Interest Expense”),
fees, corporate tax and gains or losses on disposal of fixed assets for
such preceding two quarters as adjusted
by:
|
|
|
(1)
|
subtracting
increases and adding decreases in working capital (including short term
and long term payables under any Asset Based Financing (other than in
respect of operating leases));
|
|
|
(2)
|
subtracting
capital expenditure (excluding sale and lease back transactions) incurred
during such preceding two quarters;
and
|
|
|
(3)
|
adding
proceeds from the disposal of fixed assets for such preceding two quarters
(other than proceeds from sale and lease back transactions under finance
leases); to
|
|
|
(b)
|
the
aggregate amount of scheduled repayments of principal under the Facility
during such preceding two quarters and Interest Expense and payments in
the nature of interest on all Indebtedness For Borrowed
|
- 32 -
|
|
|
Money
of the Borrower (including indebtedness under all Asset Based Financing
but excluding under operating leases) and fees paid or due under this
Agreement during such preceding two quarters;
and
|
|
17.2.5
|
“DSCR” measured at the
end of each quarter of its financial years and as evidenced by its two
quarterly financial projections for that quarter delivered pursuant to
Clause 16.4 (Compliance
Certificates), means the ratio
of:
|
|
|
(a)
|
the
sum of (i) opening Cash Balances of the Borrower at the start of the
immediately succeeding two quarters, (ii) net amounts disbursed to the
Borrower under the Facility (being amounts disbursed less amounts repaid
other than scheduled repayments) during such succeeding two quarters,
(iii) Equity injected during such succeeding two quarters (including
Subordinated Debt made available by the Shareholders and/or the parties to
the Shareholders’ Agreement and outstanding during such succeeding two
quarters but for the avoidance of doubt, excluding capitalised retained
earnings) and (iv) net profit before depreciation and amortisation,
Interest Expense, fees and corporate tax for such succeeding two quarters
as adjusted by:
|
|
|
(1)
|
subtracting
increases and adding decreases in working capital (including short term
and long term payables under Asset Based Financing (other than in respect
of operating leases));
|
|
|
(2)
|
subtracting
capital expenditure (excluding sale and lease back transactions) incurred
during such succeeding two quarters;
and
|
|
|
(3)
|
adding
proceeds from the disposal of fixed assets (other than proceeds from sale
and lease back transactions and/or finance leases) during such succeeding
two quarters; to
|
|
|
(b)
|
the
aggregate amount of scheduled repayments of principal under the Facility
during such succeeding two quarters and Interest Expense and payments in
the nature of interest on all Indebtedness For Borrowed Money of the
Borrower (including indebtedness under all Asset Based Financing but
excluding under operating leases) and fees paid or due under this
Agreement during such succeeding two
quarters.
|
|
17.3
|
Accounting
Terms
|
All
accounting expressions which are not otherwise defined herein shall be construed
in accordance with generally accepted accounting principles in Singapore (as
used in the Borrower's most recent audited financial statements).
|
18.
|
Covenants
|
Positive
Covenants
|
18.1
|
Maintenance
of Legal Validity
|
The
Borrower shall obtain, comply with the terms of and do all that is necessary to
maintain in full force and effect all authorisations, approvals, licences and
consents
- 33 -
required
in or by the laws of Singapore to enable it lawfully to enter into and perform
its obligations under the Finance Documents to which it is party and to ensure
the legality, validity, enforceability (subject to the qualifications set out in
the legal opinion of the Singapore counsel to the Finance Parties provided
pursuant to Clause 2.3 (Conditions Precedent)) or
admissibility in evidence in Singapore of the Finance Documents to which it is
party other than authorisations, licences, approvals and consents, in relation
to which the failure to comply with or obtain the same would not reasonably be
expected to have a Material Adverse Effect.
|
18.2
|
Insurance
|
|
18.2.1
|
The
Borrower shall maintain insurances on and in relation to its business and
assets with reputable underwriters or insurance companies against such
risks and to such extent as is usual for companies carrying on a business
such as that carried on by the
Borrower.
|
|
18.2.2
|
The
Borrower shall deliver to the Facility Agent no later than 120 days after
the date of the first Advance, the insurance policies of the Borrower duly
endorsed in accordance with the Insurance
Assignment.
|
|
18.3
|
Compliance
with Laws and Environmental
Compliance
|
The
Borrower shall comply in all material respects with all applicable laws, rules
and regulations to which it may be subject, including all Environmental Law and
shall obtain and maintain any Environmental Permits, breach of which (or failure
to comply with, obtain, maintain or take out which) could reasonably be expected
to have a Material Adverse Effect.
|
18.4
|
Environmental
Claims
|
The
Borrower shall inform the Facility Agent in writing as soon as reasonably
practicable upon becoming aware of the same if any Environmental Claim (other
than those of a frivolous or vexatious nature) has been commenced or (to the
best of the Borrower’s knowledge and belief) is threatened against it in any
case where such claim would be reasonably likely, if determined against it, to
have a Material Adverse Effect or of any facts or circumstances which will or
are reasonably likely to result in any Environmental Claim being commenced or
threatened against it in any case where such claim would be reasonably likely,
if determined against it, to have a Material Adverse Effect.
|
18.5
|
Notification
of Events of Default
|
The
Borrower shall promptly inform the Facility Agent of the occurrence of any Event
of Default or Potential Event of Default and, upon receipt of a written request
to that effect from the Facility Agent, confirm to the Facility Agent that, save
as previously notified to the Facility Agent or as notified in such
confirmation, no Event of Default or Potential Event of Default has
occurred.
|
18.6
|
Claims
Pari Passu
|
The
Borrower shall ensure that at all times the claims of the Finance Parties
against it under the Finance Documents rank at least pari passu with the claims of
all its other unsecured and unsubordinated creditors save for:
- 34 -
|
18.6.1
|
indebtedness
arising out of the normal course of trading which is subject to rights of
set-off which arise in each case by operation of law provided that where
the aggregate amount of any such rights is material it shall take all
reasonable steps to have the same discharged or released as soon as
practicable to such an extent as to render the same not
material;
|
|
18.6.2
|
indebtedness
preferred solely by laws of general application;
and
|
|
18.6.3
|
indebtedness
arising pursuant to the Existing Credit Agreement or the Existing Security
Documents.
|
|
18.7
|
Utilisation
of the Plant
|
The
Borrower shall, unless otherwise agreed by the Instructing Group, utilise the
Plant to produce semiconductor integrated circuit products and operate the Plant
in accordance with good industry practice and maintain the Plant in good working
order.
|
18.8
|
Project
Contracts
|
The
Borrower shall maintain all necessary contracts, licences, approvals, titles and
permits in relation to the Project in full force and effect except (a) in the
case of contracts, where the same have terminated by virtue of the full and
complete performance thereof and (b) in the case of contracts, licences,
approvals, titles and permits, where failure to maintain the same shall have no
Material Adverse Effect.
|
18.9
|
Maintenance
of Security
|
The
Borrower shall maintain the security granted pursuant to the Security Documents
in accordance with the terms thereof, save for contracts or other agreements the
subject of security which expire or terminate due to the full and complete
performance thereof or the termination of which is not material in the overall
context of the security granted pursuant to the Debenture.
|
18.10
|
Milestone
|
The
Borrower shall meet the Product Qualification milestones for:
|
18.10.1
|
68
nanometer technology node on 300mm wafer by 31 December 2008;
and
|
|
18.10.2
|
50
nanometer technology node on 300mm wafer by 31 December
2010.
|
In this
Clause 18.10 “Product
Qualification” means product qualification as determined by Micron in
accordance with Micron DRAM product specifications.
|
18.11
|
Utilisation
of Proceeds
|
The
Borrower shall utilise the proceeds of each Advance in accordance with the
provisions of Clause 2.2 (Purpose and
Application).
|
18.12
|
Taxes
and Central Provident Fund
|
The
Borrower shall pay all taxes assessed against it as and when they fall due (all
applicable grace periods as permitted by the relevant authorities being taken
into account) and shall ensure that all central provident fund schemes to which
the Borrower is bound
- 35 -
are
provided for in accordance with generally accepted local taxation, accounting
and authorised practices.
|
18.13
|
Non-extension
Event
|
|
18.13.1
|
The
Borrower may create Security over the assets which are subject to the
Security created pursuant to the Security Documents, in favour of Micron,
as security for the counter-indemnity obligation of the Borrower in
respect of any amounts paid by Micron to the Finance Parties under the
Micron Corporate Guarantee, provided
that:
|
|
|
(i)
|
the
Micron Corporate Guarantee and the Security Sharing Agreement are in full
force and effect;
|
|
|
(ii)
|
any
Security created in favour of Micron pursuant to this Clause 18.13.1 shall
at all times rank second in priority to the Security created pursuant to
the Security Documents; and
|
|
|
(iii)
|
each
Micron Security Document shall be on such terms substantially similar to
those of the Security Documents.
|
|
18.13.2
|
If
the Non-extension Event is no longer continuing, the Security Trustee
shall at the cost and request of the Borrower, discharge and release
Micron from its obligations under the Micron Corporate Guarantee (without
prejudice to accrued obligations) provided that on or
prior to such release and discharge by the Security Trustee, each of the
Micron Security Documents and the Security created pursuant thereto has
been released and discharged to the satisfaction of the Security
Trustee.
|
|
18.13.3
|
If
a Non-extension Event has occurred and is continuing on or after 11
October 2010, the Borrower shall ensure that there is an aggregate minimum
cash balance of US$50,000,000 in any of the Accounts at the end of each
quarter of its financial years, in excess of any amount to be maintained
by the Borrower in the Debt Service Deposit Accounts in accordance with
the requirements of Clause 28.7 (Debt Service Deposit
Accounts).
|
|
18.13.4
|
For
the avoidance of doubt, no Potential Event of Default shall occur or be
deemed to have occurred if the requirements of Clause 18.13.3 have been
met.
|
|
18.14
|
“Know
your customer" checks
|
|
18.14.1
|
The
Borrower shall (and shall procure that each other Obligor shall) within
five Business Days of a request by the Facility Agent or any other Finance
Party or Original Mandated Lead Arranger supply, or procure the supply of,
such documentation and other evidence as is reasonably requested by the
Facility Agent (for itself or on behalf of any other Finance Party) or any
other Finance Party of Original Mandated Lead Arranger (for itself or, in
the case of a Bank, on behalf of any prospective Transferee) in order for
the Facility Agent, such other Finance Party, Original Mandated Lead
Arranger or any prospective Transferee to carry out and be satisfied with
the results of all necessary "know your customer" or other checks in
relation to any person that it is required (under any applicable law
|
- 36 -
|
|
or
regulation) to carry out in respect of the transactions contemplated in
the Finance Documents.
|
|
18.14.2
|
Each
Bank shall promptly upon the request of the Facility Agent supply, or
procure the supply of, such documentation and other evidence as is
reasonably requested by the Facility Agent (for itself) in order for the
Facility Agent to carry out and be satisfied with the results of all
necessary "know your customer" or other checks in relation to any person
that it is required (under any applicable law or regulation) to carry out
in respect of the transactions contemplated in the Finance
Documents.
|
Negative
Covenants
|
18.15
|
Arm’s
Length Transactions
|
The
Borrower shall not, other than as already agreed under or pursuant to or as
contemplated by the Core Commercial Agreements, enter into transactions with its
shareholders or the parties to the Shareholders' Agreement or any of their
affiliates or subsidiaries except:
|
18.15.1
|
on
an arm’s length basis; or
|
|
18.15.2
|
with
the approval of (a) a majority of directors representing those of its
shareholders that are not party to or direct beneficiaries of the proposed
transaction and (b) a majority of the board of directors of the Borrower
as a whole; or
|
|
18.15.3
|
any
single transaction or series of related transactions involving aggregate
consideration to or from the Borrower of less than US$5,000,000 or its
equivalent.
|
For the
avoidance of doubt, a director appointed by the Board of Directors of the
Borrower pursuant to Article 76(g) of the Borrower's Articles of Association
shall be deemed to be a director not representing any shareholder of the
Borrower.
|
18.16
|
Capital
Expenditure
|
|
18.16.1
|
The
Borrower shall not incur any capital expenditure at any time other than,
subject to sub-clauses 18.16.2 to 18.16.7, in the amounts as set out
below:
|
|
|
(i)
|
up
to an aggregate of US$1,100,000,000 for the financial year ending on 28
August 2008;
|
|
|
(ii)
|
up
to an aggregate of US$250,000,000 for the financial year ending on 3
September 2009; and
|
|
|
(iii)
|
up
to an aggregate of US$280,000,000, for the period commencing after the
financial year referred to in paragraph (ii) above and ending on the Final
Maturity Date.
|
|
18.16.2
|
Subject
to the other provisions of this Clause 18.16, the Borrower may, at any
time in any period referred to in Clause 18.16.1(ii) or (iii) above, incur
capital expenditure notwithstanding that the aggregate capital expenditure
then incurred by the Borrower has or will (together with that capital
expenditure) exceed the amount permitted for that period in Clause
18.16.1(ii) or (iii) (as adjusted in accordance with Clause 18.16.6) (any
capital expenditure in excess of such
|
- 37 -
|
|
amount
permitted for that period in Clause 18.16.1(ii) or (iii) hereinafter
referred to as “Additional Capital
Expenditure”), provided that
either:
|
|
|
(a)
|
(in
the case of Clause 18.16.1(ii)) the aggregate amount of Additional Capital
Expenditure (if any) incurred and in respect of which the Borrower has
taken delivery of equipment which is the subject of the Additional Capital
Expenditure so incurred in such financial year of the Borrower shall not
exceed an amount equal to the highest of the amounts of Excess Cash in
respect of each of the financial quarters of the Borrower in that
financial year; or
|
|
|
(b)
|
(in
the case of Clause 18.16.1(iii)) the aggregate amount of Additional
Capital Expenditure (if any) incurred and in respect of which the Borrower
has taken delivery of equipment which is the subject of the Additional
Capital Expenditure so incurred in any financial year falling within the
period referred to in Clause 18.16.1(iii) shall not exceed an amount equal
to the highest of the amounts of Excess Cash in respect of each of the
financial quarters of the Borrower in that financial
year.
|
|
18.16.3
|
Any
amount of Additional Capital Expenditure can only be incurred after 1
January 2009.
|
|
18.16.4
|
For
the purpose of this Clause 18.16:
|
“Actual Additional Capital
Expenditure” means:
|
|
(a)
|
in
respect of the financial year ending on 3 September 2009, the amount equal
to:
|
|
|
(i)
|
the
aggregate amount of capital expenditure incurred by the Borrower in that
financial year; less
|
|
|
(ii)
|
the
amount of capital expenditure permitted to be incurred by the Borrower
under Clause 18.16.1 in respect of that financial year (as adjusted in
accordance with Clause 18.16.6);
and
|
|
|
(b)
|
in
respect of any financial year falling within the period referred to in
paragraph (iii) of Clause 18.16.1, the amount equal
to:
|
|
|
(i)
|
the
aggregate amount of capital expenditure incurred by the Borrower from the
first day of that period until the last day of that financial year;
less
|
|
|
(ii)
|
the
aggregate of (A) US$280,000,000 (as adjusted in accordance with Clause
18.16.6) and (B) the aggregate amount of the Actual Additional Capital
Expenditure incurred by the Borrower in the preceding financial years
falling within the period referred to in paragraph (iii) of Clause
18.16.1,
|
Provided
that if the result is a negative number, the Actual Additional Capital
Expenditure shall be deemed to be zero.
- 38 -
“Excess Cash” means, in respect
of any financial quarter of the Borrower, the difference between:
|
|
(a)
|
the
aggregate amount of cash in the bank accounts of the Borrower (including
the amounts deposited in the Debt Service Deposit Accounts) on the last
day of that financial quarter; and
|
|
|
(b)
|
the
aggregate of the next four Repayment
Instalments,
|
as
evidenced by the then unaudited quarterly financial statements prepared in US
dollars of the Borrower for that quarter, adjusted, in the case of the first and
second financial quarters of each financial year of the Borrower, by subtracting
the Actual Additional Capital Expenditure for the previous financial
year.
|
18.16.5
|
The
Borrower shall not, at any time, incur any Additional Capital Expenditure
if, at such time:
|
|
|
(a)
|
any
party to the Shareholders’ Agreement is entitled to give a notice under
Clause 14 of the Shareholders’ Agreement (as such Clause may be
renumbered) or under any other analogous provision of the Shareholders’
Agreement for the non-extension of the
Term;
|
|
|
(b)
|
a
Non-extension Event has occurred and is
continuing;
|
|
|
(c)
|
any
Event of Default has occurred and is continuing;
or
|
|
|
(d)
|
the
aggregate amount standing to the credit of the Debt Service Deposit
Accounts is less than
US$60,000,000,
|
|
18.16.6
|
If
the amount of the capital expenditure of the Borrower in any particular
period referred to in Clause 18.16.1 is less than the amount of capital
expenditure permitted for that year in that Clause, an amount equal to
such difference shall be added to the capital expenditure permitted for
the next period for the purpose of Clause
18.16.1.
|
|
18.16.7
|
For
the avoidance of doubt:
|
|
|
(i)
|
the
principal or capital component of any Permitted Financial Indebtedness
incurred by the Borrower under any Asset Based Financing (other than
operating leases and sale and lease back transactions)) shall be included
in determining the amount of capital expenditure of the Borrower in this
Clause 18.16;
|
|
|
(ii)
|
capital
expenditure funded by any new equity and/or Subordinated Debt made
available by and owing to the Shareholders and/or the parties to the
Shareholders’ Agreement shall not be prohibited and the amount of any such
capital expenditure shall not be included in determining the amount of
capital expenditure of the Borrower in this Clause 18.16;
and
|
|
|
(iii)
|
if
the amount of any Additional Capital Expenditure which the Borrower has
incurred in any financial year of the Borrower is less than the amount
permitted for that financial year of the Borrower under Clause 18.16.2,
the balance will be forfeited and shall not be added to the amount so
permitted for the following financial year of the
Borrower.
|
- 39 -
|
18.17
|
Negative
Pledge
|
The
Borrower shall not without the prior written consent of the Instructing Group,
create or permit to subsist any Encumbrance over all or any of its present or
future revenues or assets other than a Permitted Encumbrance.
|
18.18
|
Loans
and Guarantees
|
The
Borrower shall not without the prior written consent of the Instructing Group,
make any loans, grant any credit (save in the ordinary course of business) or
give any guarantee or indemnity (except as required hereby and other than loans
and/or guarantees to employees of the Borrower not exceeding in aggregate
US$2,000,000 or its equivalent) to or for the benefit of any person or otherwise
voluntarily assume any liability, whether actual or contingent, in respect of
any obligation of any other person.
|
18.19
|
Disposals
|
The
Borrower shall not sell, lease, transfer or otherwise dispose of, by one or more
transactions or series of transactions (whether related or not), the whole or
any part of its revenues or its assets other than:
|
18.19.1
|
sale
of stock in trade in the ordinary course of business;
or
|
|
18.19.2
|
disposal
of assets (other than fixed assets) in the ordinary course of business;
or
|
|
18.19.3
|
in
respect of fixed assets, any sale, lease or disposal (including pursuant
to capital leases and hire-purchases but excluding pursuant to any sale
and lease back arrangements) which is not in excess of, when aggregated
with each other such sale, lease and disposal in a financial year, 15 per
cent. of the Borrower's fixed assets (measured by the quarterly simple
average net book value) in that financial
year;
|
|
18.19.4
|
sale
or disposal of assets by way of sale and lease back arrangements entered
into by the Borrower under a Permitted Financial Indebtedness;
or
|
|
18.19.5
|
cash
dispositions permitted by and made in accordance with Clause 28.1 (Accounts).
|
|
18.20
|
Mergers
and Subsidiaries
|
The
Borrower shall not merge or consolidate with any other person, enter into any
demerger transaction or participate in any other type of corporate
reconstruction or create any subsidiaries except that the Borrower may create or
acquire subsidiaries each with a capital of up to US$5,000,000 provided (a) that
the shares and/or assets of any such subsidiaries are pledged or otherwise
secured in favour of the Banks to secure the obligations of the Borrower under
the Finance Documents, in form and substance satisfactory to the Instructing
Group and (b) the Borrower shall procure that any such subsidiaries do not incur
any indebtedness (other than normal operating expenses incurred in the ordinary
course of business, taxes and inventory purchase liabilities).
|
18.21
|
Dividends
|
The
Borrower shall not, without the prior written consent of the Instructing Group
pay, make or declare any dividend or other distribution or repurchase
or redeem equity.
- 40 -
|
18.22
|
No
Termination of or Amendments to Core Commercial
Agreements
|
The
Borrower shall not, without the prior consent of the Instructing Group,
terminate, cancel, amend or vary or grant any waiver under, or agree to any
termination of, or amendment or variation to or granting of any waiver under,
any Core Commercial Agreement save for (a) amendments or waivers which are of a
minor, technical or administrative nature or to correct obvious mistakes or
inconsistencies which are notified to the Facility Agent as soon as reasonably
practicable after such amendment or waiver, (b) termination or cancellation or
amendments or waivers where the same would not reasonably be expected to have a
Material Adverse Effect, (c) termination of the Shareholders’ Agreement in
circumstances where Micron has acquired all the shares in the Borrower or (d)
save where the same has terminated by virtue of the full and complete
performance thereof.
|
18.23
|
Intellectual
Property Rights
|
The
Borrower shall not accept liability in respect of, or compromise any claim by
any third party that the Borrower has infringed any third party intellectual
property rights in the course of manufacturing products, in the operation of the
Plant in Singapore or otherwise, where to do so would result in any liability or
require the Borrower to make any payment either of which would reasonably be
expected to have a Material Adverse Effect.
|
18.24
|
Permitted
Financial Indebtedness
|
|
18.24.1
|
The
Borrower shall not incur any Financial Indebtedness unless each of the
following conditions is satisfied:
|
|
|
(a)
|
such
Financial Indebtedness comprises Permitted Financial
Indebtedness;
|
|
|
(b)
|
the
Borrower has complied with Clause 17 (Financial Condition)
and Clause 18 (Covenants) of this
Agreement;
|
|
|
(c)
|
no
Event of Default or Potential Event of Default has arisen and is
continuing unwaived, arises or will arise as a result of the incurrence of
such Permitted Financial
Indebtedness;
|
|
|
(d)
|
in
relation to any Permitted Financial Indebtedness under any Asset Based
Financing (other than operating leases, finance leases and sale and lease
back arrangements), the ratio of the total amount of the facility or
commitment for such Asset Based Financing shall not be less than 70 per
cent. of the aggregate Value of all the assets which are the subject of,
or to be acquired, mortgaged and/or financed under, that Asset Based
Financing as at the date on which the agreement(s) evidencing such Asset
Based Financing is/are entered into by the Borrower. In this paragraph
(d), “Value”
means, (i) where any such assets are to be newly acquired, the purchase
price thereof and (ii) in the case of any other assets, the net book value
thereof, as at the commencement of such Asset Based Financing or the date
on which the agreement(s) evidencing such Asset Based Financing is/are
entered into by the Borrower (whichever is applicable);
and
|
- 41 -
|
|
(e)
|
in
relation to any Permitted Financial Indebtedness under any Asset Based
Financing that are in the form of finance leases, the ratio of the total
amount of the principal component payable or to be payable thereunder less
the amount (if any) paid by the Borrower as a downpayment shall not be
less than 70 per cent. of (i) in the case of finance leases under sale and
lease back arrangements, the net book value of all the assets which are
the subject of, or to be leased under, that Asset Based Financing as at
the commencement of such Asset Based Financing and (ii) in the case of any
other finance lease, the purchase price of all the assets which are the
subject of, or to be leased under, that Asset Based
Financing.
|
|
18.24.2
|
The
Borrower shall not redeem, discharge, repay or prepay the Subordinated
Debt at any time unless at such time the Advances together with accrued
interest and all other amounts owing to the Finance Parties hereunder have
been repaid. For the avoidance of doubt, (a) the Borrower shall not make
interest payments which fall due on Subordinated Debt made available by
Shareholders and/or the parties to the Shareholders’ Agreement, (b) the
Borrower may convert Subordinated Debt made available by the Shareholders
and/or the parties to the Shareholders’ Agreement into common stock of the
Borrower (subject to Clause 18.26 (Share Capital)) and (c)
there are no restrictions upon the Shareholders and/or the parties to the
Shareholders’ Agreement not requiring repayment of or otherwise forgiving
Subordinated Debt.
|
|
18.25
|
Authorised
Investments
|
The
Borrower shall not make any investments other than Authorised
Investments.
|
18.26
|
Share
Capital
|
The
Borrower shall not redeem, repurchase, purchase, defease or retire any of its
shares.
|
18.27
|
Change
of Business
|
The
Borrower shall procure that no substantial change is made to the general nature
of its business from that carried on at the date hereof.
|
19.
|
Events
of Default
|
Each of
Clause 19.1 (Failure to
Pay) to Clause 19.21 (Shareholder Termination
Event) describes circumstances which constitute an Event of Default for
the purposes of this Agreement.
|
19.1
|
Failure
to Pay
|
The
Borrower fails to pay any sum due from it under any Finance Document to which it
is a party at the time, in the currency and in the manner specified therein
unless (a) without prejudice to sub-paragraph (b) below, such failure to pay is
due to technical or administrative delay in the transfer of funds which was
outside the control of the Borrower and such sum was paid within two Business
Days of the due date for payment or (b) such failure to pay is a failure to pay
a sum which is due under the Finance Documents and sufficient amounts stand to
the credit of the Debt Service Deposit Accounts and are
- 42 -
available
and able to be withdrawn by the Security Trustee from the Debt Service Deposit
Accounts to discharge such sum then due and the Borrower, within five Business
Days of any such withdrawal by the Security Trustee, deposits into the Debt
Service Deposit Accounts such amount so as to ensure that it complies with the
requirements of Clause 28.7 (Debt Service Deposit
Accounts).
|
19.2
|
Misrepresentation
|
Any
representation or statement made or deemed to be made by an Obligor in any
Finance Document to which it is a party or in any notice or other document,
certificate or statement delivered by it pursuant thereto or in connection
therewith proves to have been incorrect, untrue or misleading in any material
respect when made or deemed to be repeated and such representation or statement
remains incorrect, untrue or misleading in any material respect seven days after
that Obligor becomes aware that such representation or statement was incorrect,
untrue or misleading.
|
19.3
|
Specific
Covenants
|
The
Borrower fails duly to perform or comply with any of the obligations expressed
to be assumed by it in Clause 16 (Financial Information and other
information) if, in the case of Clause 16.2 (Quarterly Statements), such
failure is not remedied within 30 days from the date upon which the Facility
Agent notifies the Borrower of such failure or the Borrower fails to duly
perform or comply with any of the obligations expressed to be assumed by it in
Clause 18.2.2, Clause 18.5 (Notification of Events of
Default) (except that in the case of failure to notify the Facility Agent
of the occurrence of or confirm the non-occurrence of, any Potential Event of
Default, the Borrower may remedy such failure within 30 days of its occurrence),
Clause 18.8 (Project
Contracts), Clause 18.9 (Maintenance of Security),
Clause 18.11 (Utilisation of
Proceeds), Clause 18.13 (Non-extension Event), Clause
18.15 (Arm’s Length
Transactions), Clause 18.21 (Dividends), Clause 18.23
(Intellectual Property
Rights) or Clause 28.7 (Debt Service Deposit
Accounts).
|
19.4
|
Financial
Condition
|
|
19.4.1
|
Any
of the requirements of sub-clause 17.1.1 of Clause 17.1 (Financial Condition) is
not satisfied unless, within two months of the last day of the period in
respect of which the financial statements evidencing such failure have
been prepared, the Borrower has provided evidence satisfactory to the
Facility Agent and the Instructing Group that, were relevant financial
statements to be prepared and the relevant ratio to be calculated in
respect of such two month period then ending, the Borrower would not be
failing to perform or comply with that covenant or, within 15 days after
the end of such two month period the Borrower has provided financial
statements with respect to such two month period to the Facility Agent
confirming that if the relevant ratio is calculated with respect to such
two month period, as at the end of such two month period the Borrower is
not failing to perform or comply with such
covenant.
|
|
19.4.2
|
Any
of the requirements of sub-clause 17.1.2 of Clause 17.1 (Financial Condition) is
not satisfied unless, within three months of the last day of the period in
respect of which the financial statements evidencing such failure have
been prepared, the Borrower has provided evidence satisfactory to the
Facility Agent and the Instructing Group that, were relevant financial
statements to be prepared and the
|
- 43 -
|
|
relevant
ratio to be calculated in respect of such three month period then ending,
the Borrower would not be failing to perform or comply with that covenant
or, within 15 days after the end of such three month period the Borrower
has provided financial statements with respect to such three month period
to the Facility Agent confirming that if the relevant ratio is calculated
with respect to such three month period, as at the end of such three month
period the Borrower is not failing to perform or comply with such
covenant.
|
|
19.4.3
|
Any
of the requirements of sub-clause 17.1.3 of Clause 17.1 (Financial Condition) is
not satisfied unless, within three months of the start of the period in
respect of which the projections evidencing such failure have been
prepared, the Borrower has provided evidence satisfactory to the Facility
Agent and the Instructing Group that, were the relevant ratio to be
calculated based on the actual results of the first three months of such
period and revised projections prepared by the Borrower for the
immediately succeeding three months of that period, the Borrower would not
be failing to perform or comply with that
covenant.
|
|
19.5
|
Other
Obligations
|
An
Obligor fails duly to perform or comply with any other obligation expressed to
be assumed by it in any Finance Documents to which it is party and such failure,
if capable of remedy, is not remedied within 60 days after the Facility Agent
has given notice thereof to the Borrower.
|
19.6
|
Cross
Default
|
|
19.6.1
|
Any
Indebtedness For Borrowed Money of the Borrower is not paid when due or at
the expiry of any applicable grace period or periods, provided that it shall
not constitute an Event of Default if such indebtedness is not paid as a
result of a bona
fide dispute which is being contested in good faith and in respect
of which appropriate reserves have been
made.
|
|
19.6.2
|
Any
Indebtedness For Borrowed Money of Micron under any agreement between
Micron and a third party with an outstanding amount exceeding
US$20,000,000 (or its equivalent) is accelerated by the relevant creditor
or creditors in accordance with the terms of the relevant document or
agreement (and becomes due before its specified maturity accordingly) and
such acceleration has not been waived, satisfied or otherwise withdrawn
within 30 days.
|
|
19.6.3
|
Any
creditor under any Asset Based Financing or part thereof or an agent or
trustee on its behalf declares (in accordance with the terms of that Asset
Based Financing) that an event of default (howsoever described) has
occurred under or in respect of that Asset Based Financing or otherwise
declares that any amount due under or in respect of that Asset Based
Financing is accelerated (and become due prior to its specified maturity
accordingly).
|
|
19.6.4
|
No
Event of Default will occur under Clause 19.6.1 or 19.6.3 (to the extent
that the Event of Default under Clause 19.6.3 was the result of a failure
to make a payment under any Asset Based Financing when due or at the
expiry of any applicable grace period or periods) if the aggregate amount
of Indebtedness for Borrrowed Money or such Asset Based Financing (as the
case may be) falling
|
- 44 -
|
|
within
Clause 19.6.1 and 19.6.3 above is less than US$5,000,000 (or its
equivalent).
|
|
19.7
|
Insolvency
and Rescheduling
|
An
Obligor is unable to pay its debts as they fall due, commences negotiations with
any one or more of its creditors with a view to the general readjustment or
rescheduling of its indebtedness or makes a general assignment for the benefit
of or a composition with its creditors;
|
19.8
|
Winding-up
|
The
Borrower or Micron takes any corporate action or other steps (which are not of a
frivolous or vexatious nature) are taken or legal proceedings are started for
its winding-up, dissolution, administration or re-organisation (whether by way
of voluntary arrangement, scheme of arrangement or otherwise) or for the
appointment of a liquidator, receiver, administrator, judicial manager,
conservator, custodian, trustee or similar officer of it or of any or all of its
revenues and assets unless in the case of any such petition presented, order
made or other action or steps or proceedings taken otherwise than by or at the
instigation of the Borrower or any of the shareholders, the same would not
prejudice the rights of the Finance Parties under the Security Documents, is
being contested in good faith and is in any event discharged, withdrawn or
discontinued within 30 days.
|
19.9
|
Execution
or Distress
|
Any
execution or distress is levied against, or an encumbrancer takes possession of,
the whole or any part of, the property, undertaking or assets of an Obligor and
if such execution, distress or taking of possession relates to assets which are
not substantial, such execution, distress or taking of possession is not
discharged within three months.
|
19.10
|
Litigation
|
|
19.10.1
|
The
Borrower fails to comply with or pay any sum due from it under any final
judgment or any final order made or given by any court of competent
jurisdiction which exceeds (in aggregate with any other such sums
outstanding) US$5,000,000 or its equivalent and continues unsatisfied and
unstayed for a period of 30 days.
|
|
19.10.2
|
Any
final judgement or final order made against the Borrower is made or given
by any court of competent jurisdiction, in each case which would
reasonably be expected to have a Material Adverse
Effect.
|
|
19.10.3
|
No
Event of Default would occur under Clauses 19.10.1 and 19.10.2
if:
|
|
|
(i)
|
the
final judgement or final order is subject to a pending appeal or a pending
application for permission or leave to appeal;
or
|
|
|
(ii)
|
(a)
|
there
is a possibility of an appeal or an application for permission or lease to
appeal against that final judgement or final order;
and
|
|
|
(b)
|
the
period specified by the relevant court of competent jurisdiction or
statute for making of an appeal or an application for permission or lease
to appeal has not lapsed or, where no such period is specified,
|
- 45 -
|
|
|
60
days have not lapsed since the date on which the judgement or order was
made.
|
|
19.11
|
Governmental
Intervention
|
By or
under the authority of any government, (a) all, or substantially all of, the
management of an Obligor is displaced or the authority of an Obligor in the
conduct of its business is wholly or partially curtailed ((in each case) which
would reasonably be expected to have a Material Adverse Effect) or (b) all or a
majority of the issued shares of an Obligor or the whole or any part (which
would reasonably be expected to have a Material Adverse Effect) of its revenues
or assets is seized, nationalised, expropriated or compulsorily
acquired.
|
19.12
|
Ownership
of the Borrower
|
Micron
ceases to own, directly or indirectly, at least 51 per cent. of the issued share
capital of the Borrower.
|
19.13
|
Insurance
Total Loss
|
The Plant
becomes or is declared a total loss or is beyond economic repair in the opinion
of the Insurance Expert.
|
19.14
|
Finance
Documents in Full Force and Effect and
Security
|
Save as
expressly permitted by the terms of the Finance Documents, any Finance Document
ceases to be in full force and effect or the security interests constituted by
any Security Document ceases to constitute first ranking security interest over
the assets which are expressed to be subject thereof.
|
19.15
|
The
Borrower’s Business
|
The
Borrower ceases to carry on the business contemplated in the Shareholders'
Agreement.
|
19.16
|
Repudiation
|
The
Borrower repudiates a Finance Document to which it is a party or does or causes
to be done any act or thing evidencing an intention to repudiate a Finance
Document to which it is a party.
|
19.17
|
Illegality
|
At any
time it is or becomes unlawful for the Borrower or any party to a Core
Commercial Agreement to perform or comply with any or all of its obligations
under any Finance Documents or Core Commercial Agreement to which it is a party
or any of the obligations of any such person thereunder are not or cease to be
legal, valid, binding and enforceable but, in the case of a Core Commercial
Agreement, only if the Instructing Group determines that such unlawfulness or
cessation of legality, validity or enforceability would reasonably be expected
to have a Material Adverse Effect.
- 46 -
|
19.18
|
Core
Commercial Agreements
|
Any Core
Commercial Agreement is terminated other than by virtue of the full and complete
performance thereof and is not replaced by another agreement substantially the
same in scope, unless (a) such termination would not reasonably be expected to
have a Material Adverse Effect or (b) such termination relates to the
Shareholders’ Agreement in circumstances where Micron has acquired all the
shares in the Borrower.
|
19.19
|
Material
Adverse Change
|
|
19.19.1
|
Any
other event or circumstance occurs which the Instructing Group acting in
good faith believes would reasonably be expected to have a Material
Adverse Effect.
|
|
19.19.2
|
No
Event of Default would occur under this Clause 19.19 solely by reason of a
merger entered into by Micron that is not in breach of Clause 5.4 (Merger) of the Micron
Corporate Guarantee.
|
|
19.20
|
Non-extension
Event
|
A
Non-extension Event has occurred and is continuing and the requirements of
Clause 18.13.3 have not been satisfied.
|
19.21
|
Shareholder
Termination Event
|
A
Shareholder Termination Event has occurred.
|
19.22
|
Micron
Events of Default
|
None of
the events specified in Clauses 19.2 (Misrepresentation), 19.5
(Other Obligations),
Clause 19.7 (Insolvency and
Rescheduling), Clause 19.9 (Execution or Distress) ,
Clause 19.11 (Governmental
Intervention), Clause 19.17 (Illegality), Clause 19.18
(Core Commercial
Agreements) and Clause 19.19 (Material Adverse Change)
above which occurs in relation only to Micron shall constitute an Event of
Default if Micron has been discharged and released from its obligations under
the Micron Corporate Guarantee in accordance with Clause 2.4 (Release of Guarantee) of the
Micron Corporate Guarantee.
|
19.23
|
Acceleration
and Cancellation
|
Upon the
occurrence of an Event of Default, and at any time thereafter for so long as
such event is continuing or has not been waived, the Facility Agent may (and, if
so instructed by the Instructing Group, shall) by notice to the
Borrower:
|
19.23.1
|
declare
all or any part of the Advances to be immediately due and payable
(whereupon the same shall become so payable together with accrued interest
thereon and any other sums then owed by the Borrower under the Finance
Documents) or declare all or any part of the Advances to be due and
payable on demand of the Facility
Agent;
|
|
19.23.2
|
declare
that any undrawn portion of the Facility shall be cancelled, whereupon the
same shall be cancelled and the Available Commitment of each Bank shall be
reduced to zero; and/or
|
- 47 -
|
19.23.3
|
exercise
and/or direct the exercise of the rights of the Finance Parties under the
Security Documents, subject to the terms
thereof.
|
|
19.24
|
Advances
Due on Demand
|
If,
pursuant to Clause 19.23 (Acceleration and
Cancellation), the Facility Agent declares all or any part of the
Advances to be due and payable on demand of the Facility Agent, then, and at any
time thereafter, the Facility Agent may (and, if so instructed by the
Instructing Group, shall) by notice to the Borrower:
|
19.24.1
|
require
repayment of all or such part of the Advances on such date as it may
specify in such notice (whereupon the same shall become due and payable on
the date specified together with accrued interest thereon and any other
sums then owed by the Borrower under the Finance Documents) or withdraw
its declaration with effect from such date as it may
specify; and/or
|
|
19.24.2
|
select
as the duration of any Interest Period which begins whilst such
declaration remains in effect a period of six months or
less.
|
|
20.
|
Commitment
Commission and Fees
|
|
20.1
|
Commitment
Commission
|
The
Borrower shall pay to the Facility Agent for the account of each Bank a
commitment commission on the amount of such Bank’s Available Commitment (which
has not been cancelled pursuant to the terms of this Agreement) from day to day
for the period commencing on and from the date falling four Business Days from
the date of this Agreement to and including the last day of the Availability
Period, such commitment commission to be calculated at the rate of:
|
20.1.1
|
(where
the Available Facility on any particular date is more than or equal to 50
per cent. of the Total Commitments on that day) 0.75 per cent. per annum;
and
|
|
20.1.2
|
(where
the Available Facility on any particular date is less than 50 per cent. of
the Total Commitments on that day) 0.5 per cent. per
annum,
|
and such
commitment commission is payable in arrears on the last day of each successive
period of three months which ends during the Availability Period and on the last
day of the Availability Period.
|
20.2
|
Upfront
Fee
|
The
Borrower shall pay to the Facility Agent for the account of the Original
Mandated Lead Arrangers and the Banks, the fees specified in the upfront fee
letter dated 9 January 2008 from the Original Mandated Lead Arrangers to the
Borrower at the times, and in the amounts, specified in such
letter.
|
20.3
|
Agency
Fee
|
The
Borrower shall pay to the Facility Agent for its own account the agency fees
specified in the agency fee letter dated on or about the date of this Agreement
from the Facility Agent to the Borrower at the times, and in the amounts,
specified in such letter.
- 48 -
|
20.4
|
Security
Trustee Fee
|
The
Borrower shall pay to the Security Trustee for its own account the security
trustee fees specified in the security trustee fee letter dated on or about the
date of this Agreement from the Security Trustee to the Borrower at the times,
and in the amounts, specified in such letter.
|
21.
|
Costs
and Expenses
|
|
21.1
|
Transaction
Expenses
|
The
Borrower shall, from time to time on demand of the Facility Agent, reimburse
each of the Facility Agent and each of the Original Mandated Lead Arrangers for
all reasonable costs and expenses (including but not limited to legal and
documentation fees), together with any GST thereon incurred by it in connection
with the negotiation, preparation and execution of the Finance Documents, any
other document referred to in the Finance Documents and the completion of the
transactions therein contemplated.
|
21.2
|
Preservation
and Enforcement of Rights
|
The
Borrower shall, from time to time on demand of the Facility Agent, reimburse the
Finance Parties for all costs and expenses (including legal fees) on a full
indemnity basis together with any GST thereon incurred in or in connection with
the preservation and/or enforcement of any of the rights of the Finance Parties
under the Finance Documents and any other document referred to in the Finance
Documents.
|
21.3
|
Stamp
Taxes
|
The
Borrower shall pay all stamp, registration and other taxes to which the Finance
Documents any other document referred to in the Finance Document or any judgment
given in connection therewith is or at any time may be subject and shall, from
time to time on demand of the Facility Agent, indemnify the Finance Parties
against any liabilities, costs, claims and expenses resulting from any failure
to pay or any delay in paying any such tax.
|
21.4
|
Banks’
Liabilities for Costs
|
If the
Borrower fails to perform any of its obligations under this Clause 21, each
Bank shall, in its Proportion, indemnify each of the Facility Agent and the
Original Mandated Lead Arrangers against any loss incurred by any of them as a
result of such failure.
|
22.
|
Default
Interest and Break Costs
|
|
22.1
|
Default
Interest Periods
|
If any
sum due and payable by the Borrower hereunder is not paid on the due date
therefor in accordance with Clause 25 (Payments), or if any sum due
and payable by the Borrower under any judgment of any court in connection
herewith is not paid on the date of such judgment, the period beginning on such
due date or, as the case may be, the date of such judgment and ending on the
date upon which the obligation of the Borrower to pay such sum is discharged
shall be divided into successive periods, each of which (other than the first)
shall start on the last day of the preceding such period and the duration of
each of
- 49 -
which
shall (except as otherwise provided in this Clause 22) be selected by the
Facility Agent and shall be of six months or less.
|
22.2
|
Default
Interest
|
An Unpaid
Sum shall bear interest during each Interest Period in respect thereof at the
rate per annum which is one point two five per cent. (1.25 per cent.) per annum
above the percentage rate which would apply if such Unpaid Sum had been an
Advance in the amount and currency of such Unpaid Sum and for the same Interest
Period, provided that if
such Unpaid Sum relates to an Advance which became due and payable on a day
other than the last day of an Interest Period relating thereto:
|
22.2.1
|
the
first Interest Period applicable to such Unpaid Sum shall be of a duration
equal to the unexpired portion of the current Interest Period relating to
that Advance; and
|
|
22.2.2
|
the
percentage rate of interest applicable thereto from time to time during
such period shall be that which exceeds by one point two five per cent.
(1.25 per cent.) the rate which would have been applicable to it had it
not so fallen due.
|
|
22.3
|
Payment
of Default Interest
|
Any
interest which shall have accrued under Clause 22.2 (Default Interest) in respect
of an Unpaid Sum shall be due and payable and shall be paid by the Borrower on
the last day of each Interest Period in respect thereof or on such other dates
as the Facility Agent may specify by notice to the Borrower.
|
22.4
|
Break
Costs
|
If any
Bank or the Facility Agent on its behalf receives or recovers all or any part of
such Bank’s share of an Advance or Unpaid Sum otherwise than on the last day of
an Interest Period relating thereto, the Borrower shall pay to the Facility
Agent within 15 Business Days of demand for account of such Bank an amount equal
to the amount (if any) by which (a) the additional interest (excluding the
Margin) which would have been payable on the amount so received or recovered had
it been received or recovered on the last day of that Interest Period exceeds
(b) the amount of interest which that Bank notifies to the Facility Agent would
have been payable to that Bank on the last day of that Interest Period in
respect of a dollar deposit equal to the amount so received or recovered placed
by it with a prime bank in Singapore for a period starting on the third Business
Day following the date of such receipt or recovery and ending on the last day of
that Interest Period.
|
23.
|
Borrower’s
Indemnities
|
|
23.1
|
Borrower’s
Indemnity
|
The
Borrower undertakes to indemnify:
|
23.1.1
|
each
Finance Party against any cost, claim, loss, expense (including legal
fees) or liability together with any GST thereon, which it may sustain or
incur as a consequence of the occurrence of any Event of Default or any
default by the Borrower in the performance of any of the obligations
expressed to be assumed by it in the Finance
Documents;
|
- 50 -
|
23.1.2
|
each
Bank against any cost or loss it may suffer under Clause 21.4 (Banks’ Liabilities for
Costs) or Clause 29.5 (Indemnification);
and
|
|
23.1.3
|
each
Bank against any cost or loss it may suffer or incur as a result of its
funding or making arrangements to fund its portion of an Advance requested
by the Borrower but not made by reason of the operation of Clause 3 (Utilisation of the
Facility).
|
|
23.2
|
Currency
Indemnity
|
If any
sum (a “Sum”) due from
the Borrower under this Agreement or any order, judgment given or made in
relation hereto has to be converted from the currency (the “First Currency”) in which such
Sum is payable into another currency (the “Second Currency”) for the
purpose of:
|
23.2.1
|
making
or filing a claim or proof against the Borrower;
or
|
|
23.2.2
|
obtaining
or enforcing an order, judgment in any court or other
tribunal,
|
the
Borrower shall indemnify each person to whom such Sum is due from and against
any loss suffered or incurred as a result of any discrepancy between (a) the
rate of exchange used for such purpose to convert such Sum from the First
Currency into the Second Currency and (b) the rate or rates of exchange
available to such person at the time of receipt of such Sum.
|
24.
|
Currency
of Account and Payment
|
The
dollar is the currency of account and payment for each and every sum at any time
due from the Borrower hereunder, provided that:
|
24.1.1
|
each
payment in respect of costs and expenses shall be made in the currency in
which the same were incurred;
|
|
24.1.2
|
each
payment pursuant to Clause 10.2 (Tax Indemnity),
Clause 12.1 (Increased Costs) or
Clause 23.1 (Borrower's
Indemnity) shall be made in the currency specified by the party
claiming thereunder; and
|
|
24.1.3
|
any
amount expressed to be payable in a currency other than US dollars shall
be paid in that other currency.
|
|
25.
|
Payments
|
|
25.1
|
Payments
to the Facility Agent
|
On each
date on which this Agreement requires an amount to be paid by the Borrower or a
Bank, the Borrower or, as the case may be, such Bank shall make the same
available to the Facility Agent for value on the due date at such time and in
such funds and to such account with such bank as the Facility Agent shall
specify from time to time.
|
25.2
|
Payments
by the Facility Agent
|
|
25.2.1
|
Save
as otherwise provided herein, each payment received by the Facility Agent
pursuant to Clause 25.1 (Payments to the
Facility Agent)
shall:
|
- 51 -
|
|
(a)
|
in
the case of a payment received for the account of the Borrower, be made
available by the Facility Agent to the Borrower by
application:
|
|
|
(i)
|
first,
in or towards payment the same day of any amount then due from the
Borrower hereunder to the person (acting in the same capacity) from whom
the amount was so
received; and
|
|
|
(ii)
|
secondly,
in or towards payment the same day to the account of the Borrower with
such bank in Singapore as the Borrower shall have previously notified to
the Facility Agent for this
purpose; and
|
|
|
(b)
|
in
the case of any other payment, be made available by the Facility Agent to
the person entitled to receive such payment in accordance with this
Agreement (in the case of a Bank, for the account of the Facility Office
and in accordance with its Standing Payment Instruction) for value the
same day by transfer to such account of such person with such bank as such
person shall have previously notified to the Facility
Agent.
|
|
25.2.2
|
A
payment will be deemed to have been made by the Facility Agent on the date
on which it is required to be made under this Agreement if the Facility
Agent has, on or before that date, taken steps to make that payment in
accordance with the regulations or operating procedures of the clearing or
settlement system used by the Facility Agent in order to make the
payment.
|
|
25.3
|
No
Set-off
|
All
payments required to be made by the Borrower hereunder shall be calculated
without reference to any set-off or counterclaim and shall be made free and
clear of and without any deduction for or on account of any set-off or
counterclaim.
|
25.4
|
Clawback
|
Where a
sum is to be paid hereunder to the Facility Agent for account of another person,
the Facility Agent shall not be obliged to make the same available to that other
person until it has been able to establish to its satisfaction that it has
actually received such sum, but if it does so and it proves to be the case that
it had not actually received such sum, then the person to whom such sum was so
made available shall on request refund the same to the Facility Agent together
with an amount sufficient to indemnify the Facility Agent against any cost or
loss it may have suffered or incurred by reason of its having paid out such sum
prior to its having received such sum.
|
25.5
|
Partial
Payments
|
If and
whenever a payment is made by the Borrower hereunder, the Facility Agent may
apply the amount received towards the obligations of the Borrower under this
Agreement in the following order:
|
25.5.1
|
first, in or towards
payment of any unpaid costs and expenses of each of the Facility Agent,
the Original Mandated Lead Arrangers and the Security
Trustee;
|
|
25.5.2
|
secondly, in or towards
payment pro rata
of any accrued interest due but
unpaid;
|
|
25.5.3
|
thirdly, in or towards
payment pro rata
of any principal due but unpaid;
and
|
- 52 -
|
25.5.4
|
fourthly, in or towards
payment pro rata
of any other sum due but unpaid.
|
|
25.6
|
Variation
of Partial Payments
|
The order
of payments set out in Clause 25.5 (Partial Payments) shall
override any appropriation made by the Borrower but the order set out in
sub-clauses 25.5.2, 25.5.3 and 25.5.4 of Clause 25.5 (Partial Payments) may be
varied if agreed by all the Banks.
|
25.7
|
Business
Days
|
|
25.7.1
|
Any
payment which is due to be made on a day that is not a Business Day shall
unless a contrary indication appears be made on the next Business Day in
the same calendar month (if there is one) or the preceding Business Day
(if there is not).
|
|
25.7.2
|
During
any extension of the due date for payment of any principal or an Unpaid
Sum under this Agreement as a result of the operation of sub-clause 25.7.1
interest is payable on the principal at the rate payable on the original
due date.
|
|
26.
|
Set-Off
|
|
26.1
|
Contractual
Set-off
|
The
Borrower authorises each Bank to apply any credit balance to which the Borrower
is entitled on any account of the Borrower with such Bank in satisfaction of any
sum due and payable from the Borrower to such Bank under the Finance Documents
but unpaid. For this purpose, each Bank is authorised to purchase
with the moneys standing to the credit of any such account such other currencies
as may be necessary to effect such application.
|
26.2
|
Set-off
not Mandatory
|
No Bank
shall be obliged to exercise any right given to it by Clause 26.1 (Contractual Set-off) but
shall immediately following the exercise of such right, notify the
Borrower.
|
27.
|
Sharing
|
|
27.1
|
Payments
to Banks
|
If a Bank
(a “Recovering Bank”)
applies any receipt or recovery from the Borrower to a payment due under this
Agreement and such amount is received or recovered other than in accordance with
Clause 25 (Payments),
then such Recovering Bank shall:
|
27.1.1
|
notify
the Facility Agent of such receipt or
recovery;
|
|
27.1.2
|
at
the request of the Facility Agent, promptly pay to the Facility Agent an
amount (the “Sharing
Payment”) equal to such receipt or recovery less any amount which
the Facility Agent determines may be retained by such Recovering Bank as
its share of any payment to be made in accordance with Clause 25.5 (Partial
Payments).
|
- 53 -
|
27.2
|
Redistribution
of Payments
|
The
Facility Agent shall treat the Sharing Payment as if it had been paid by the
Borrower and distribute it between the Finance Parties (other than the
Recovering Bank) in accordance with Clause 25.5 (Partial
Payments).
|
27.3
|
Recovering
Bank’s Rights
|
The
Recovering Bank will be subrogated into the rights of the parties which have
shared in a redistribution pursuant to Clause 27.2 (Redistribution of Payments)
in respect of the Sharing Payment (and the Borrower shall be liable to
the Recovering Bank in an amount equal to the Sharing Payment).
|
27.4
|
Repayable
Recoveries
|
If any
part of the Sharing Payment received or recovered by a Recovering Bank becomes
repayable and is repaid by such Recovering Bank, then:
|
27.4.1
|
each
party which has received a share of such Sharing Payment pursuant to
Clause 27.2 (Redistribution of
Payments) shall, upon request of the Facility Agent, pay to the
Facility Agent for account of such Recovering Bank an amount equal to its
share of such Sharing
Payment; and
|
|
27.4.2
|
such
Recovering Bank’s rights of subrogation in respect of any reimbursement
shall be cancelled and the Borrower will be liable to the reimbursing
party for the amount so reimbursed.
|
|
27.5
|
Exception
|
This
Clause 27 shall not apply if the Recovering Bank would not, after making any
payment pursuant hereto, have a valid and enforceable claim against the
Borrower.
|
27.6
|
Recoveries
Through Legal Proceedings
|
If any
Bank intends to commence any action in any court under this Agreement it shall
give prior notice to the Facility Agent and the other Banks. If any
Bank shall commence any action in any court to enforce its rights hereunder and,
as a result thereof or in connection therewith, receives any amount, then such
Bank shall not be required to share any portion of such amount with any Bank
which has the legal right to, but does not, join in such action or commence and
diligently prosecute a separate action to enforce its rights in another
court.
|
27.7
|
Authorised
Investments
|
Each Bank
agrees that if it exercises any right of set-off in respect of any Authorised
Investments held by or placed with it, the proceeds thereof will firstly be
applied towards payments due under this Agreement.
|
28.
|
Accounts
|
|
28.1
|
Opening
of Accounts
|
The
Borrower shall establish and maintain the Operating Accounts and the Debt
Service Deposit Accounts.
- 54 -
|
28.2
|
Deposits
into Operating Accounts
|
The
Borrower shall ensure that:
|
28.2.1
|
the
gross sale proceeds derived from the sale of its products or the proceeds
of any bank discounting of the
same;
|
|
28.2.2
|
any
interest or income received from any Authorised
Investments;
|
|
28.2.3
|
all
amounts paid to it under any completion guarantee, performance bond,
advance payment guarantee or any retention monies or liquidated
damages;
|
|
28.2.4
|
subject
to the terms of the Insurance Assignment, all amounts paid to it under
insurance policies held by it; and
|
|
28.2.5
|
all
other amounts paid to it,
|
are
credited in full to the Operating Accounts except in respect of the amount of
the proceeds of the first Advance(s) made hereunder or any part thereof which
are to be utilised (i) to repay the amounts due to the Existing Lenders under
the Existing Credit Agreement (which shall be paid directly to CIBSL for the
account of the Existing Lenders) and/or (ii) (concurrently with or after the
discharge of all amounts due to the Existing Lenders under the Existing Credit
Agreement) to be deposited into either or both of the Debt Service Deposit
Accounts for the purpose of complying with the Borrower's obligations under
Clause 28.7 (Debt Service
Deposit Accounts).
|
28.3
|
Withdrawals
from Operating Accounts
|
Prior to
the occurrence of an Event of Default which is continuing the Borrower may
withdraw the following amounts from the Operating Accounts:
|
28.3.1
|
amounts
to make Authorised Investments;
|
|
28.3.2
|
insurance
proceeds withdrawn in accordance with the Insurance Assignment;
and
|
|
28.3.3
|
amounts
withdrawn which are to be applied in accordance with the cashflow
application set out in Clause 28.4 (Cashflow
Application).
|
Subject
to Clause 28.6 (Cashflow After
Default), the Borrower shall make no withdrawals from the Operating
Accounts while an Event of Default is continuing, during which time only the
Facility Agent shall be entitled to (and is hereby irrevocably authorised to)
make such withdrawals for application to such amounts in such priority as it may
determine in accordance with any instructions given to it by the Instructing
Group.
|
28.4
|
Cashflow
Application
|
Amounts
standing to the credit of the Operating Accounts and withdrawn by the Borrower
pursuant to sub-clause 28.3.3 of Clause 28.3 (Withdrawals) shall be applied
in the following manner and priority:
|
28.4.1
|
to
all operating expenditure, all Permitted Financial Indebtedness (for
avoidance of doubt, including all scheduled principal repayment, interest
and fee payments due under this Agreement and all scheduled payments of
the principal and interest element of any Asset Based Financing) and (to
the extent properly incurred) any taxes and
royalties;
|
- 55 -
|
28.4.2
|
to
fund the Debt Service Deposit Accounts in accordance with the requirements
of Clause 28.7 (Debt
Service Deposit Accounts);
|
|
28.4.3
|
to
all other amounts for which the Borrower is liable and which are due under
the Finance Documents;
|
|
28.4.4
|
to
any Approved Capital Expenditure properly incurred and falling due;
and
|
|
28.4.5
|
to
amounts of Advances which the Borrower has requested be voluntarily
prepaid under this Agreement.
|
|
28.5
|
Authorised
Investments
|
Amounts
credited to the Operating Accounts may be invested in Authorised
Investments.
|
28.6
|
Cashflow
After Default
|
Following
the occurrence of an Event of Default, for so long as such Event of Default is
continuing, subject to the Banks not having accelerated the payment of all or
any part of the Advances due under this Agreement and/or enforced their
security, the Borrower shall, save as otherwise agreed by the Instructing Group,
only be entitled to make withdrawals from the Operating Accounts
for:
|
28.6.1
|
paying
amounts due hereunder; and
|
|
28.6.2
|
other
withdrawals up to a maximum aggregate amount of US$20,000,000 (or such
higher amount as may be agreed from time to time by the Instructing Group)
or its equivalent which are required for paying on-going operating
expenses which are necessary in order to keep the Plant in operation or
which the Borrower is required by statute to
make,
|
provided that within 21 days
from the date on which the Facility Agent was notified of the Event of Default
the Banks shall, if at the time of such notification, such Event of Default is
still continuing, notify the Borrower, through the Facility Agent, as to
whether:
|
28.6.3
|
they
intend to accelerate the payment of all or any part of the Advances due
hereunder; or
|
|
28.6.4
|
they
have agreed to waive such an Event of
Default,
|
and
failing any such notification within such 21 day period the Borrower may
continue to make withdrawals in accordance with the provisions of Clause
28.4 (Cashflow
Application).
|
28.7
|
Debt
Service Deposit Accounts
|
|
28.7.1
|
The
Borrower shall:
|
|
|
(i)
|
have,
as at 27 March 2009, an amount equal to no less than US$30,000,000
deposited in either or both the Debt Service Deposit Accounts;
and
|
|
|
(ii)
|
have,
as at 27 September 2009, an amount equal to no less than US$60,000,000
deposited in either or both the Debt Service Deposit
Accounts.
|
- 56 -
|
28.7.2
|
The
Borrower shall make no withdrawals from either Debt Service Deposit
Account save that, without prejudice to the security constituted by the
Borrower Accounts Assignment, (i) the Borrower may withdraw interest which
has accrued on the Debt Service Deposit Accounts (provided that after such
withdrawal, the amount standing to the credit of the Debt Service Deposit
Accounts is more than or equal to (A) US$30,000,000, at any time prior to
27 September 2009 or (B) US$60,000,000, at any time on or after 27
September 2009) and (ii) the Security Trustee may (and is hereby
authorised to) withdraw sums from each Debt Service Deposit Account for
the purposes contemplated by sub-paragraph (b) of Clause 19.1 (Failure to
Pay).
|
|
29.
|
The
Facility Agent, The Original Mandated Lead Arrangers and The
Banks
|
|
29.1
|
Appointment
of the Facility Agent
|
Each of
the Original Mandated Lead Arrangers and the Banks hereby appoints the Facility
Agent to act as its agent in connection herewith and authorises the Facility
Agent to exercise such rights, powers, authorities and discretions as are
specifically delegated to the Facility Agent by the terms hereof together with
all such rights, powers, authorities and discretions as are reasonably
incidental thereto.
|
29.2
|
Facility
Agent’s Discretions
|
The
Facility Agent may:
|
29.2.1
|
assume,
unless it has, in its capacity as agent for the Banks, received notice to
the contrary from any other party hereto, that (a) any representation made
or deemed to be made by the Borrower in connection with the Finance
Documents is true, (b) no Event of Default or Potential Event of Default
has occurred, (c) the Borrower is not in breach of or default under its
obligations under the Finance Documents to which it is party and (d) any
right, power, authority or discretion vested herein upon the Instructing
Group, the Banks or any other person or group of persons has not been
exercised;
|
|
29.2.2
|
assume
that (a) the Facility Office of each Bank is that notified to it by such
Bank in writing and (b) the information provided by each Bank pursuant to
Clause 33 (Notices) is true and
correct in all respects until it has received from such Bank notice of a
change to its Facility Office (by not less than five Business Day’ written
notice) or any such information and act upon any such notice until the
same is superseded by a further such
notice;
|
|
29.2.3
|
act
through its personnel and agents and may engage and pay for the advice or
services of any lawyers, accountants, surveyors or other experts whose
advice or services may to it seem necessary, expedient or desirable and
rely upon any advice so obtained;
|
|
29.2.4
|
rely
as to any matters of fact which might reasonably be expected to be within
the knowledge of the Borrower upon a certificate signed by or on behalf of
the Borrower;
|
|
29.2.5
|
rely
upon any communication or document believed by it to be
genuine;
|
- 57 -
|
29.2.6
|
refrain
from exercising any right, power or discretion vested in it as Facility
Agent hereunder unless and until instructed by the Instructing Group as to
whether or not such right, power or discretion is to be exercised and, if
it is to be exercised, as to the manner in which it should be
exercised; and
|
|
29.2.7
|
refrain
from acting in accordance with any instructions of the Instructing Group
to begin any legal action or proceeding arising out of or in connection
with this Agreement until it shall have received such security as it may
require (whether by way of payment in advance or otherwise) for all costs,
claims, losses, expenses (including legal fees) and liabilities together
with any GST thereon which it will or may expend or incur in complying
with such instructions.
|
|
29.3
|
Facility
Agent’s Obligations
|
The
Facility Agent shall:
|
29.3.1
|
promptly
inform each Bank of the contents of any notice or document received by it
in its capacity as Facility Agent from the Borrower under the Finance
Documents;
|
|
29.3.2
|
promptly
notify each Bank of the occurrence of any Event of Default, any Potential
Event of Default or any default by the Borrower in the due performance of
or compliance with its obligations under the Finance Documents to which it
is party of which the Facility Agent has notice from any other party
hereto;
|
|
29.3.3
|
save
as otherwise provided herein, act as agent hereunder in accordance with
any instructions given to it by the Instructing Group, which instructions
shall be binding on the Original Mandated Lead Arrangers and the Banks;
and
|
|
29.3.4
|
if
so instructed by the Instructing Group, refrain from exercising any right,
power or discretion vested in it as agent
hereunder.
|
The
Facility Agent’s duties under the Finance Documents are solely mechanical and
administrative in nature.
|
29.4
|
Excluded
Obligations
|
Notwithstanding
anything to the contrary expressed or implied herein, neither the Facility
Agent, the Security Trustee nor any of the Original Mandated Lead Arrangers
shall:
|
29.4.1
|
be
bound to enquire as to (a) whether or not any representation made or
deemed to be made by the Borrower in connection with the Finance Documents
is true, (b) the occurrence or otherwise of any Event of Default or
Potential Event of Default, (c) the performance by the Borrower of its
obligations under the Finance Documents or (d) any breach of or default by
the Borrower of or under its obligations under the Finance
Documents;
|
|
29.4.2
|
be
bound to account to any Bank for any sum or the profit element of any sum
received by it for its own account;
|
|
29.4.3
|
be
bound to disclose to any other person any information relating to the
Borrower if (a) the Borrower, on providing such information, expressly
stated to the Facility Agent, the Security Trustee or, as the case may be,
the Original Mandated Lead Arrangers that such information was
confidential or (b) such disclosure would or
|
- 58 -
|
|
might
in its opinion constitute a breach of any law or be otherwise actionable
at the suit of any person;
|
|
29.4.4
|
be
under any obligations other than those for which express provision is made
herein;
|
|
29.4.5
|
unless
mandatorily required by the law to which it is subject, be responsible (to
any other Finance Party) for providing any certification or documents with
respect to information (except that in respect of itself) required for any
anti-money laundering due diligence purpose pursuant to any relevant law.
Such certificates and related documents (if required by the relevant laws)
shall be provided directly by the Borrower provided that the request for
such information may be made through the Facility Agent;
or
|
|
29.4.6
|
be
or be deemed to be a fiduciary for any other party
hereto.
|
|
29.5
|
Indemnification
|
Each Bank
shall, in its Proportion, from time to time on demand by the Facility Agent,
indemnify the Facility Agent, against any and all costs, claims, losses,
expenses (including legal fees) and liabilities together with any GST thereon
which the Facility Agent may incur, otherwise than by reason of its own gross
negligence or wilful misconduct, in acting in its capacity as agent hereunder
and any fees payable to the Facility Agent under Clause 20.3 (Agency fee) (other than any
which have been reimbursed by the Borrower pursuant to Clause 23.1 (Borrower’s Indemnity) or
otherwise paid by the Borrower).
|
29.6
|
Exclusion
of Liabilities
|
|
29.6.1
|
Except
in the case of gross negligence or wilful default, none of the Facility
Agent or the Original Mandated Lead Arrangers accepts any
responsibility:
|
|
|
(a)
|
for
the adequacy, accuracy and/or completeness of the Information Memorandum
or any other/any information supplied by the Facility Agent or the
Original Mandated Lead Arrangers, the Borrower or by any other person in
connection with the Finance Documents, the transactions therein
contemplated or any other agreement, arrangement or document entered into,
made or executed in anticipation of, pursuant to or in connection with the
Finance Documents;
|
|
|
(b)
|
for
the legality, validity, effectiveness, adequacy or enforceability of the
Finance Documents or any other agreement, arrangement or document entered
into, made or executed in anticipation of, pursuant to or in connection
with the Finance Documents; or
|
|
|
(c)
|
for
the exercise of, or the failure to exercise, any judgment, discretion or
power given to any of them by or in connection with the Finance Documents
or any other agreement, arrangement or document entered into, made or
executed in anticipation of, pursuant to or in connection with the Finance
Documents.
|
Accordingly,
none of the Facility Agent or the Original Mandated Lead Arrangers shall be
under any liability in respect of such matters, save in the case of gross
negligence or wilful misconduct.
- 59 -
|
29.6.2
|
Nothing
in this Agreement shall oblige the Facility Agent or the Original Mandated
Lead Arrangers to carry out any “know your customer”, anti-money
laundering or other checks in relation to any person on behalf of any Bank
and each Bank confirms to each of the Facility Agent or the Original
Mandated Lead Arrangers that it is solely responsible for any such checks
it is required to carry out and that it may not rely on any such checks
made by, or any statement in relation to such checks made by the Facility
Agent or the Original Mandated Lead
Arrangers.
|
|
29.7
|
No
Actions
|
Each of
the Banks agrees that it will not assert or seek to assert against any director,
officer or employee of the Facility Agent or the Original Mandated Lead
Arrangers or any claim it might have against any of them in respect of the
matters referred to in Clause 29.6 (Exclusion of
Liabilities).
|
29.8
|
Business
with the Borrower
|
The
Facility Agent, each of the Original Mandated Lead Arrangers and each of the
Banks may accept deposits from, lend money to and generally engage in any kind
of banking or other business with the Borrower.
|
29.9
|
Resignation
|
The
Facility Agent may resign its appointment hereunder at any time without
assigning any reason therefor by giving not less than 30 days’ prior notice to
that effect to each of the other parties hereto, provided that no such
resignation shall be effective until a successor for the Facility Agent is
appointed in accordance with the succeeding provisions of this Clause
29.
|
29.10
|
Removal
of Facility Agent
|
The
Instructing Group may remove the Facility Agent from its role as agent hereunder
by giving notice to that effect to each of the other parties
hereto. Such removal shall take effect only when a successor to the
Facility Agent is appointed in accordance with the terms hereof.
|
29.11
|
Successor
Facility Agent
|
If the
Facility Agent gives notice of its resignation pursuant to Clause 29.9
(Resignation) or it is
removed pursuant to Clause 29.10 (Removal of Facility Agent), then any reputable
and experienced bank or other financial institution which is a Bank may after
consultation with the Borrower be appointed as a successor to the Facility Agent
by the Instructing Group during the period of such notice but, if no such
successor is so appointed, the Facility Agent may appoint such a successor
itself (which successor must be a Bank).
|
29.12
|
Rights
and Obligations
|
If a
successor to the Facility Agent is appointed under the provisions of
Clause 29.11 (Successor
Facility Agent),
then (a) the retiring or departing Facility Agent shall be discharged from
any further obligation hereunder but shall remain entitled to the benefit of the
provisions of this Clause 29 and (b) its successor and each of the
other parties hereto shall have the same rights and obligations amongst
themselves as they would have had if such successor had been a party
hereto.
- 60 -
|
29.13
|
Own
Responsibility
|
It is
understood and agreed by each Bank that at all times it has itself been, and
will continue to be, solely responsible for making its own independent appraisal
of and investigation into all risks arising under or in connection with the
Finance Documents including, but not limited to:
|
29.13.1
|
the
financial condition, creditworthiness, condition, affairs, status and
nature of the Borrower;
|
|
29.13.2
|
the
legality, validity, effectiveness, adequacy and enforceability of the
Finance Documents and any other agreement, arrangement or document entered
into, made or executed in anticipation of, pursuant to or in connection
with the Finance Documents;
|
|
29.13.3
|
whether
such Bank has recourse, and the nature and extent of that recourse,
against the Borrower or any other person or any of their respective assets
under or in connection with the Finance Documents, the transactions
therein contemplated or any other agreement, arrangement or document
entered into, made or executed in anticipation of, pursuant to or in
connection with the Finance Documents;
and
|
|
29.13.4
|
the
adequacy, accuracy and/or completeness of the Information Memorandum and
any other information provided by the Facility Agent, the Original
Mandated Lead Arrangers, the Borrower or by any other person in connection
with the Finance Documents, the transactions contemplated therein or any
other agreement, arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with the Finance
Documents.
|
Accordingly,
each Bank acknowledges to the Facility Agent and the Original Mandated Lead
Arrangers that it has not relied on and will not hereafter rely on the Facility
Agent and the Original Mandated Lead Arrangers or any of them in respect of any
of these matters.
|
29.14
|
Money
Laundering
|
Unless
mandatorily required by any applicable laws, the Facility Agent shall
not be responsible (to any other party) for providing any certification
or documents with respect to information (except that in respect of itself)
required for any anti-money laundering due diligence purposes. Such certificates
and related documents shall be provided directly by the Borrower and other
Obligors, provided that
the request for such information may be made through
the Facility Agent.
|
29.15
|
Agency
Division Separate
|
In acting
as agent hereunder for the Banks, the Facility Agent shall be regarded as acting
through its agency division which shall be treated as a separate entity from any
other of its divisions or departments and, notwithstanding the foregoing
provisions of this Clause 29, any information received by some other
division or department of the Facility Agent may be treated as confidential and
shall not be regarded as having been given to the Facility Agent’s agency
division.
- 61 -
|
30.
|
Assignments
and Transfers
|
|
30.1
|
Binding
Agreement
|
This
Agreement shall be binding upon and enure to the benefit of each party hereto
and its or any subsequent successors and Transferees.
|
30.2
|
No
Assignments and Transfers by the
Borrower
|
The
Borrower shall not be entitled to assign or transfer all or any of its rights,
benefits and obligations under the Finance Documents.
|
30.3
|
Assignments
and Transfers by Banks
|
With the
prior written consent of the Borrower (not to be unreasonably withheld or
delayed) and subject to Clause 30.7 (Disclosure of Information),
any Bank may at its own cost and expense (but without prejudice to sub-clause
30.3.1 below), at any time, assign all or any of its rights and benefits under
the Finance Documents or transfer in accordance with Clause 30.5 (Transfers by Banks) all or
any of its rights, benefits and obligations under the Finance Documents to a
bank or financial institution or to Micron, provided that:
|
30.3.1
|
if
any such assignment or transfer would at the time it is made result in an
obligation on the part of the Borrower to pay under Clause 10 (Taxes) or Clause 12
(Increased Costs)
an amount in excess of that it would have been obliged to pay but for such
assignment or transfer, the Borrower shall not be obliged to pay such
excess amount, unless such assignment or transfer was made pursuant to
Clause 14 (Mitigation);
|
|
30.3.2
|
the
consent of the Borrower shall not be required if an Event of Default has
occurred and is continuing at the time such assignment or transfer is
proposed to be made;
|
|
30.3.3
|
the
consent of the Borrower shall not be required if such assignment or
transfer is made to a bank or financial institution which has merged with
or acquired a Bank or is the successor of a Bank or is an affiliate of a
Bank (subject to the restrictions upon the obligation of the Borrower to
pay under Clause 10 (Taxes) or Clause 12
(Increased Costs)
amounts in excess of that which it would have been obliged to pay but for
such assignment or transfer, as referred to in sub-clause 30.3.1 above);
and
|
|
30.3.4
|
no
such assignment or transfer may be made to Micron if immediately following
such assignment or transfer, Micron would be owed more than thirty three
and one-third per cent. of the Loan, unless immediately following such
assignment or transfer, Micron would be owed 100 per cent. of the
Loan.
|
|
30.4
|
Assignments
by Banks
|
If any
Bank assigns all or any of its rights and benefits under the Finance Documents
in accordance with Clause 30.3 (Assignments and Transfers by
Banks), then, unless and until the assignee has delivered a notice to the
Facility Agent confirming in favour of the Facility Agent, the Original Mandated
Lead Arrangers, the Security Trustee and the other Banks that it shall be under
the same obligations towards each of them as it would have been under if it had
been an original party hereto as a Bank (whereupon such assignee
- 62 -
shall
become a party hereto as a “Bank”), the Facility Agent, the Original Mandated
Lead Arrangers, the Security Trustee and the other Banks shall not be obliged to
recognise such assignee as having the rights against each of them which it would
have had if it had been such a party hereto.
|
30.5
|
Transfers
by Banks
|
If any
Bank wishes to transfer all or any of its rights, benefits and/or obligations
under the Finance Documents as contemplated in Clause 30.3 (Assignments and Transfers by
Banks), then such transfer may be effected at its own cost and expense
(but without prejudice to sub-clause 30.3.1 of Clause 30.3 (Assignments and Transfers by
Banks)) by the delivery to the Facility Agent of a duly completed
Transfer Certificate executed by such Bank and the relevant Transferee together
with an Accession Undertaking duly executed on behalf of the Transferee in which
event, on the later of the Transfer Date specified in such Transfer Certificate
and the fifth Business Day after (or such earlier Business Day endorsed by the
Facility Agent on such Transfer Certificate falling on or after) the date of
delivery of such Transfer Certificate and Accession Undertaking to the Facility
Agent:
|
30.5.1
|
the
Facility Agent and the Security Trustee shall countersign such Accession
Undertaking;
|
|
30.5.2
|
to
the extent that in such Transfer Certificate the Bank party thereto seeks
to transfer by novation its rights, benefits and obligations under the
Finance Documents, the Borrower and such Bank shall be released from
further obligations towards one another under the Finance Documents and
their respective rights against one another shall be cancelled (such
rights and obligations being referred to in this Clause 30.5 as
“discharged rights and
obligations”);
|
|
30.5.3
|
the
Borrower and the Transferee party thereto shall assume obligations towards
one another and/or acquire rights against one another which differ from
such discharged rights and obligations only insofar as the Borrower and
such Transferee have assumed and/or acquired the same in place of the
Borrower and such Bank;
|
|
30.5.4
|
the
Facility Agent, the Original Mandated Lead Arrangers, the Security
Trustee, such Transferee and the other Banks shall acquire the same rights
and benefits and assume the same obligations between themselves as they
would have acquired and assumed had such Transferee been an original party
hereto as a Bank with the rights, benefits and/or obligations acquired or
assumed by it as a result of such transfer and to that extent the Facility
Agent, the Original Mandated Lead Arrangers, the Security Trustee and the
relevant Bank shall each be released from further obligations to each
other hereunder (and, for the avoidance of doubt, such Transferee shall be
liable to the Facility Agent in respect of any of the accrued and
undischarged obligations of the transferring Bank under Clause 29.5 (Indemnification));
and
|
|
30.5.5
|
such
Transferee shall become a party hereto as a
“Bank”.
|
- 63 -
|
30.6
|
Transfer
Fees
|
On the
date upon which a transfer takes effect pursuant to Clause 30.5 (Transfers by Banks) the
relevant Transferee shall pay to the Facility Agent, for its own account, a fee
of US$1,000 and to the Security Trustee, for its own account, a fee
of US$1,000.
|
30.7
|
Disclosure
of Information
|
Each
Finance Party shall treat and ensure that its respective officers, employees and
agents shall treat and hold as strictly confidential all information disclosed
in relation to the Finance Documents and the transactions contemplated thereby
and not disclose any, all, or part of such information to, or discuss the same
with, any third party, or make use of any, all or part of the information for
other purposes except that any Finance Party may disclose to any
person:
|
30.7.1
|
to
whom such Finance Party assigns or transfers (or may potentially assign or
transfer) all or any of its rights, benefits and obligations under the
Finance Documents;
|
|
30.7.2
|
with
whom such Finance Party enters into (or may potentially enter into) any
sub-participation in relation to, or any other transaction under which
payments are to be made by reference to, the Finance Documents or the
Borrower;
|
|
30.7.3
|
being
an auditor employed in the normal course of its
business;
|
|
30.7.4
|
being
its agent, contractor, third party service provider or professional
adviser;
|
|
30.7.5
|
being
a rating agency, insurer, insurance broker or direct or indirect provider
of credit protection;
|
|
30.7.6
|
being
its holding company, head office or regional office, any branch or
subsidiary; or
|
|
30.7.7
|
to
whom information may be required to be disclosed by any applicable
law,
|
such
information about the Borrower and the Finance Documents as such Finance Party
shall consider appropriate, provided that if such
disclosure is pursuant to sub-clauses 30.7.1 or 30.7.2 above, the person to whom
it is proposed such information be given shall have first entered into a
Confidentiality Undertaking and if such disclosure is pursuant to sub-clause
30.7.4, the person to whom it is proposed such information be given shall,
except in the case of professional advisers, have subsisting a confidentiality
agreement between such person and the relevant Finance Party obliging that
person to keep confidential all such information disclosed, and
any such disclosure by a Finance Party shall be subject to any duty
of confidentiality imposed on it by applicable laws and regulations. This Clause
30.7 is not and shall not be deemed to constitute an express or implied
agreement by the Finance Parties with the Borrower for a higher degree of
confidentiality than that prescribed in Section 47 of the Banking Act, Chapter
19 of Singapore (the “Banking
Act”) and in the Third Schedule to the Banking Act.
|
30.8
|
Notification
|
The
Facility Agent shall promptly notify the Borrower of any assignment or transfer
completed pursuant to this Clause 30 (Assignments and
Transfers).
- 64 -
|
30.9
|
Change
of Name
|
If a Bank
changes its name, then it shall, at its own cost and within seven Business Days,
provide the Facility Agent with an original or certified true copy of a legal
opinion issued by the legal advisers to such Bank in the jurisdiction where such
Bank is incorporated addressed to the Facility Agent (as agent for the Banks),
which is in form and substance satisfactory to the Facility Agent, confirming
that (a) such Bank has changed its name, (b) the new name of such Bank, (c) the
date from which such change has taken effect and (d) such Bank's obligations
under the Finance Documents remain legal, valid, binding and enforceable on such
Bank after its change of name. If such Bank fails to provide the
Facility Agent with such legal opinion, it shall, upon the request of the
Facility Agent, sign and deliver to the Facility Agent a Transfer Certificate in
respect of the transfer of its rights and obligations under this Agreement to
the entity with such new name.
|
30.10
|
Re-organisation
|
If a Bank
becomes subject to a re-organisation, such Bank shall, at its own costs and
within seven Business Days after the effective date of such re-organisation,
deliver to the Facility Agent an original or certified true copy of legal
opinions, each in form and substance satisfactory to the Facility Agent,
addressed to the Facility Agent (as agent for the Banks) and issued by legal
advisers to such Bank in each of the jurisdictions (a) where such Bank is
incorporated, (b) where such Bank's Facility Office is located, and (c) the law
of which governs the Finance Documents, such that all such legal opinions taken
together provide the Facility Agent with confirmation that such Bank's
obligations under the Finance Documents remain legal, valid, binding and
enforceable on the surviving entity of such re-organisation after the
re-organisation. If such Bank fails to provide the Facility Agent
with such legal opinions, it shall, upon the request of the Facility Agent, sign
and deliver to the Facility Agent a Transfer Certificate in respect of the
transfer of its rights and obligations under this Agreement to the surviving
entity of such re-organisation.
|
31.
|
Calculations
and Evidence of Debt
|
|
31.1
|
Basis
of Accrual
|
Interest,
commitment commission and fees shall accrue from day to day and shall be
calculated on the basis of a year of 360 days (or, in any case where market
practice differs, in accordance with market practice) and the actual number of
days elapsed.
|
31.2
|
Quotations
|
If on any
occasion a Reference Bank or Bank fails to supply the Facility Agent with a
quotation required of it under the foregoing provisions of this Agreement, the
rate for which such quotation was required shall be determined from those
quotations which are supplied to the Facility Agent, provided that, in relation to
determining SIBOR, this Clause 31.2 shall not apply if only one Reference Bank
supplies a quotation.
|
31.3
|
Evidence
of Debt
|
Each Bank
shall maintain in accordance with its usual practice accounts evidencing the
amounts from time to time lent by and owing to it hereunder.
- 65 -
|
31.4
|
Prima
Facie Evidence
|
In any
legal action or proceeding arising out of or in connection with this Agreement,
the entries made in the accounts maintained pursuant to Clause 31.3 (Evidence of Debt) shall, in
the absence of manifest error, be prima facie evidence of the
existence and amounts of the specified obligations of the Borrower.
|
31.5
|
Certificates
of Banks
|
A
certificate of a Bank as to (a) the amount by which a sum payable to it
hereunder is to be increased under Clause 10.1 (Tax Gross-up), (b) the
amount for the time being required to indemnify it against any such cost,
payment or liability as is mentioned in Clause 10.2 (Tax Indemnity),
Clause 12.1 (Increased
Costs) or Clause 23.1 (Borrower's Indemnity) or (c)
the amount of any credit, relief, remission or repayment as is mentioned in
Clause 11.3 (Tax Credit
Payment) shall, in the absence of manifest error, be prima facie evidence of the
existence and amounts of the specified obligations of the Borrower.
|
32.
|
Remedies
and Waivers, Partial Invalidity
|
|
32.1
|
Remedies
and Waivers
|
No
failure to exercise, nor any delay in exercising, on the part of any Finance
Party, any right or remedy under the Finance Documents shall operate as a waiver
thereof, nor shall any single or partial exercise of any right or remedy prevent
any further or other exercise thereof or the exercise of any other right or
remedy. The rights and remedies herein provided are cumulative and
not exclusive of any rights or remedies provided by law.
|
32.2
|
Partial
Invalidity
|
If, at
any time, any provision hereof is or becomes illegal, invalid or unenforceable
in any respect under the law of any applicable jurisdiction, neither the
legality, validity or enforceability of the remaining provisions hereof nor the
legality, validity or enforceability of such provision under the law of any
other applicable jurisdiction shall in any way be affected or impaired
thereby.
|
33.
|
Notices
|
|
33.1
|
Communications
in Writing
|
Each
communication to be made under the Finance Documents shall be made in writing
and, unless otherwise stated, shall be made by fax or letter.
|
33.2
|
Addresses
|
Any
communication or document to be made or delivered pursuant to the Finance
Documents shall (unless the recipient of such communication or document has, by
fifteen days’ written notice to the Facility Agent, specified another address or
fax number) be made or delivered to the address or fax number:
|
33.2.1
|
in
the case of the Borrower, the Facility Agent and the Security Trustee,
identified with its name below; and
|
- 66 -
|
33.2.2
|
in
the case of each Bank, notified in writing to the Facility Agent prior to
the date hereof (or, in the case of a Transferee, at the end of the
Transfer Certificate to which it is a party as
Transferee),
|
and
marked for the attention of the person (if any) from time to time designated by
the relevant party hereto for the purposes of this Agreement.
|
33.3
|
Delivery
|
Any
communication or document to be made or delivered by one person to another
pursuant to the Finance Documents shall:
|
33.3.1
|
if
by way of fax, be deemed to have been received when transmission has been
completed; and
|
|
33.3.2
|
if
by way of letter, be deemed to have been delivered when left at the
relevant address or, as the case may be, 10 days after being deposited in
the post postage prepaid in an envelope addressed to it at such
address,
|
provided that any
communication or document to be made or delivered to the Facility Agent shall be
effective only when received by its agency division and then only if the same is
expressly marked for the attention of the department or officer identified with
the Facility Agent’s signature below (or such other department or officer as the
Facility Agent shall from time to time specify for this purpose).
|
33.4
|
Notification
of Changes
|
Promptly
upon receipt of notification of a change of address or fax number pursuant to
Clause 33.2 (Addresses) or changing its
own address or fax number the Facility Agent shall notify the other parties
hereto of such change.
|
33.5
|
Electronic
communication
|
|
33.5.1
|
Any
communication to be made between the Facility Agent and a Bank or the
Security Trustee under or in connection with the Finance Documents may be
made by electronic mail or other electronic means, if the Facility Agent
and the relevant Bank or the Security
Trustee:
|
|
|
(i)
|
agree
that, unless and until notified to the contrary, this is to be an agreed
form of communication;
|
|
|
(ii)
|
notify
each other in writing of their electronic mail address and/or any other
information required to enable the sending and receipt of information by
that means; and
|
|
|
(iii)
|
notify
each other of any change to their address or any other such information
supplied by them.
|
|
33.5.2
|
The
electronic mail address of the Facility Agent and each Bank is identified
with its name below or, in the case of a Transferee, at the end of the
Transfer Certificate to which it is a party as Transferee), or such other
electronic mail address notified to by a Bank to the Facility Agent or, as
the case may be, by the Facility Agent to all the Banks, with five
Business Days’ prior notice.
|
- 67 -
|
33.5.3
|
Any
electronic communication made between the Facility Agent and a Bank or the
Security Trustee under or in connection with the Finance Documents will be
effective only when actually received in readable form and in the case of
any electronic communication made by a Bank or the Security Trustee to the
Facility Agent only if it is addressed in such a manner as the Facility
Agent shall specify for this
purpose.
|
|
33.6
|
English
Language
|
Each
communication and document made or delivered by one party to another pursuant to
this Agreement shall be in the English language or accompanied by a translation
thereof into English certified (by an officer of the person making or delivering
the same) as being a true and accurate translation thereof.
|
33.7
|
Notices
to Facility Agent and Security
Trustee
|
Without
prejudice to the provisions of this Clause 33, if at any time the Facility Agent
and the Security Trustee are the same person acting out of the same Facility
Office, the Borrower may deliver communications or documents to the Facility
Agent and/or the Security Trustee by delivering such communications or documents
to the Facility Agent and/or the Security Trustee (expressly marked for the
attention of the Facility Agent and the Security Trustee). If at any
time the Facility Agent and the Security Trustee are not the same person acting
out of the same Facility Office, any communications or documents to the Security
Trustee shall be delivered to the Security Trustee and the Facility Agent
concurrently.
|
34.
|
Counterparts
|
This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument.
|
35.
|
Amendments
|
|
35.1
|
Amendments
|
Subject
to Clause 35.2 (Amendments
Requiring the Consent of all the Banks), if the Facility Agent has the
prior consent of the Instructing Group, the Facility Agent and the Borrower may
from time to time agree in writing to amend this Agreement or to waive,
prospectively or retrospectively, any of the requirements of this Agreement and
any amendments or waivers so agreed shall be binding on all the Finance Parties
and the Borrower, provided
that no such waiver or amendment shall subject any party hereto to any
new or additional obligations without the consent of such party.
|
35.2
|
Amendments
Requiring the Consent of all the
Banks
|
An
amendment or waiver which relates to:
|
35.2.1
|
Clause 27
(Sharing) or this
Clause 35;
|
|
35.2.2
|
a
change in the principal amount of or currency of any Advance or deferral
of any Repayment Date;
|
- 68 -
|
35.2.3
|
a
change in the Margin, the amount or currency of any payment of interest,
fees or any other amount payable hereunder to any Finance Party or
deferral of the date for payment
thereof;
|
|
35.2.4
|
Clause 19.1
(Failure to
Pay);
|
|
35.2.5
|
the
release of a Security Document or any amendment, waiver, discharge or
termination which would prejudice the Banks’ position under the Security
Documents;
|
|
35.2.6
|
the
definition of Instructing Group; or
|
|
35.2.7
|
any
provision which contemplates the need for the consent or approval of all
the Banks,
|
shall not
be made without the prior consent of all the Banks and the
Borrower.
|
35.3
|
Exceptions
|
Notwithstanding
any other provisions hereof, the Facility Agent shall not be obliged to agree to
any such amendment or waiver if the same would:
|
35.3.1
|
amend
or waive this Clause 35, Clause 21 (Costs and Expenses) or
Clause 29 (The Facility
Agent, The Original Mandated Lead Arrangers and The Banks);
or
|
|
35.3.2
|
otherwise
amend or waive any of the Facility Agent’s rights hereunder or subject the
Facility Agent, the Original Mandated Lead Arrangers or the Security
Trustee to any additional obligations hereunder (and any such amendment or
waiver subjecting any such person to any such additional obligation
requires such person's written
agreement).
|
|
36.
|
Governing
Law
|
This
Agreement is governed by Singapore law.
|
37.
|
Jurisdiction
|
|
37.1
|
Singapore
Courts
|
The
courts of Singapore have jurisdiction to settle any dispute ( a “Dispute”) arising out of or in
connection with this Agreement (including a dispute regarding the existence,
validity or termination of this Agreement or the consequences of its
nullity).
|
37.2
|
Convenient
Forum
|
The
Borrower waives any objection it might now or hereafter have to the courts
referred to in Clause 37.1 (Singapore Courts) being
nominated to settle Disputes and accordingly, agrees that they will not argue to
the contrary.
|
37.3
|
Non-exclusive
Jurisdiction
|
The
submission to the jurisdiction of the courts referred to in Clause 37.1 shall
not (and shall not be construed so as to) limit the right of each of the Finance
Parties to take proceedings against the Borrower or, the Borrower to take
proceedings against the Finance Parties or any one or more of them or any other
party, in any other court of
- 69 -
competent
jurisdiction nor shall the taking of proceedings in any one or more
jurisdictions preclude the taking of proceedings in any other jurisdiction
(whether concurrently or not) if and to the extent permitted by applicable
law.
AS WITNESS the hands of the
duly authorised representatives of the parties hereto the day and year first
before written.
- 70 -
Schedule
1
The
Banks
|
Bank
|
Commitment
US($)
|
|||
|
Oversea-Chinese
Banking Corporation Limited
|
75,000,000 | |||
|
ABN
AMRO Bank N.V., Singapore Branch
|
66,375,000 | |||
|
DBS
Bank Ltd
|
66,375,000 | |||
|
Citibank
N.A., Singapore Branch
|
57,750,000 | |||
|
Bayerische
Hypo- und Vereinsbank AG, Singapore Branch
|
30,000,000 | |||
|
Taipei
Fubon Commercial Bank
|
30,000,000 | |||
|
Sumitomo
Mitsui Banking Corporation, Singapore Branch
|
30,000,000 | |||
|
China
Development Industrial Bank
|
30,000,000 | |||
|
United
Overseas Bank Limited
|
30,000,000 | |||
|
Entie
Commercial Bank
|
20,000,000 | |||
|
Industrial
Bank of Taiwan
|
20,000,000 | |||
|
The
Shanghai Commercial & Savings Bank, Ltd
|
20,000,000 | |||
|
Taishin
International Bank
|
20,000,000 | |||
|
Xx
Xxxxx Bank Ltd.
|
20,000,000 | |||
|
Bank
of Taiwan, Singapore Branch
|
10,000,000 | |||
|
Bank
SinoPac, Offshore Banking Branch
|
10,000,000 | |||
|
Far
Eastern International Bank
|
10,000,000 | |||
|
Land
Bank of Taiwan, Singapore Branch
|
10,000,000 | |||
|
Mega
International Commercial Bank Co. Ltd, Singapore Branch
|
10,000,000 | |||
|
RHB
Bank Bhd (Singapore Branch)
|
10,000,000 | |||
|
Raiffeisen
Zentralbank Xxxxxxxxxxx XX, Singapore Branch
|
10,000,000 | |||
|
Sunny
Bank Offshore Banking Unit
|
10,000,000 | |||
|
Xxx
Xxx Commercial Bank, Ltd., Singapore Branch
|
4,500,000 | |||
|
__________
|
||||
|
Total
|
600,000,000 | |||
- 71 -
Schedule
2
Form
of Transfer Certificate
To: [ ]
TRANSFER
CERTIFICATE
relating
to the agreement (as from time to time amended, varied, novated or supplemented,
the “Facility Agreement”) dated
[ ] 2008 whereby a US$600,000,000
term loan facility was made available to TECH Semiconductor Singapore Pte. Ltd.
as borrower by a group of banks on whose behalf Citicorp Investment Bank
(Singapore) Limited acted as facility agent in connection
therewith.
|
1.
|
Terms
defined in the Facility Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms Bank,
Transferee and Portion Transferred are defined in the schedule
hereto.
|
|
2.
|
The
Bank (a) confirms that the details in the schedule hereto under the
heading “Bank’s
Participation in
the Facility” and “Advances” accurately
summarises its participation in the Facility Agreement and the Interest
Period of any existing Advances and (b) requests the Transferee to accept
and procure the transfer by novation to the Transferee of the Portion
Transferred (specified in the schedule hereto) of its Commitment and/or
its participation in such Advance(s) by counter-signing and delivering
this Transfer Certificate to the Facility Agent at its address for the
service of notices specified in the Facility
Agreement.
|
|
3.
|
The
Transferee hereby requests the Facility Agent to accept this Transfer
Certificate as being delivered to the Facility Agent pursuant to and for
the purposes of Clause 30.5 (Transfers by Banks) of
the Facility Agreement so as to take effect in accordance with the terms
thereof on the Transfer Date or on such later date as may be determined in
accordance with the terms thereof.
|
|
4.
|
The
Transferee confirms that it has received a copy of the Finance Documents
together with such other information as it has required in connection with
this transaction and that it has not relied and will not hereafter rely on
the Bank to check or enquire on its behalf into the legality, validity,
effectiveness, adequacy, accuracy or completeness of any such information
and further agrees that it has not relied and will not rely on the Bank to
assess or keep under review on its behalf the financial condition,
creditworthiness, condition, affairs, status or nature of the
Borrower.
|
|
5.
|
The
Transferee hereby undertakes with the Bank and each of the other parties
to the Facility Agreement that it will perform in accordance with their
terms all those obligations under the Finance Documents (including, for
the avoidance of doubt, Clause 16 of the Trust Deed) which by the terms of
the Facility Agreement will be assumed by it after delivery of this
Transfer Certificate to the Facility Agent and satisfaction of the
conditions (if any) subject to which this Transfer Certificate is
expressed to take effect.
|
|
6.
|
The
Bank makes no representation or warranty and assumes no responsibility
with respect to the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any document relating thereto
and assumes no responsibility for the
|
- 72 -
|
|
financial
condition of the Borrower or for the performance and observance by the
Borrower of any of its obligations under the Finance Documents or any
document relating thereto and any and all such conditions and warranties,
whether express or implied by law or otherwise, are hereby
excluded.
|
|
7.
|
The
Bank hereby gives notice that nothing herein or in the Finance Documents
(or any document relating thereto) shall oblige the Bank to
(a) accept a re-transfer from the Transferee of the whole or any part
of its rights, benefits and/or obligations under the Finance Documents
transferred pursuant hereto or (b) support any losses directly or
indirectly sustained or incurred by the Transferee for any reason
whatsoever including the non-performance by the Borrower or any other
party to the Finance Documents (or any document relating thereto) of its
obligations under any such document. The Transferee hereby
acknowledges the absence of any such obligation as is referred to in (a)
or (b).
|
|
8.
|
The
Transferee expressly acknowledges that the execution and delivery of this
Transfer Certificate constitutes its contractual acceptance of the offer
to become a party to the Trust Deed as set out in Clause 17 thereof and
attached hereto is an Accession
Undertaking.
|
|
9.
|
This
Transfer Certificate and the rights, benefits and obligations of the
parties hereunder shall be governed by and construed in accordance with
Singapore law.
|
THE
SCHEDULE
|
1.
|
Bank:
|
||
|
2.
|
Transferee:
|
||
|
3.
|
Transfer
Date:
|
||
|
4.
|
Bank’s
Participation in the Facility:
|
||
|
Bank’s
Commitment
|
Portion
Transferred
|
||
|
5.
|
Advance(s):
|
||
|
Amount
of Bank’s Participation
|
Interest
Period
|
Portion
Transferred
|
|
[Transferor
Bank]
|
[Transferee
Bank]
|
|
By:
|
By:
|
|
Date:
|
Date:
|
- 73 -
Administrative
Details of Transferee
Address:
Contact
Name:
Account
for Payments:
Standing
Payment Instructions:
Telex:
Fax:
Telephone:
E-mail:
- 74 -
Schedule
3
Conditions
Precedent
|
1.
|
CORPORATE
AUTHORISATIONS
|
|
1.1
|
A
copy of the Constitutional Documents of each Obligor, certified true by a
duly authorised officer of the relevant
Obligor.
|
|
1.2
|
A
copy or an extract of the resolution of the board of directors of each
Obligor approving the execution, delivery and performance of each of the
Finance Documents to which it is expressed to be a party and the terms and
conditions thereof and authorising a named person or persons to sign such
documents and any documents to be delivered pursuant thereto, certified
true by a duly authorised officer of the relevant
Obligor.
|
|
1.3
|
A
certificate of a duly authorised officer of each Obligor setting out the
names and signatures of the persons authorised to sign, on behalf of that
Obligor, each of the Finance Documents to which it is expressed to be a
party and any documents to be delivered pursuant
thereto.
|
|
1.4
|
A
certificate as to the existence and good standing of Micron from the
appropriate governmental authorities in the State of Delaware, The United
States of America.
|
|
2.
|
AUTHORISATIONS AND
CONSENTS
|
A copy,
certified a true by and on behalf each Obligor, of each such licence, approval,
registration or declaration as is, in the opinion of counsel to the Finance
Parties, necessary to render each of the Finance Documents legal, valid, binding
and enforceable on the relevant Obligor and admissible in evidence in any
applicable jurisdiction and enable each of the parties to such documents to
perform its obligations thereunder, as informed to the Obligors by the Facility
Agent prior to the date of this Agreement or, otherwise, by reason of any
circumstances occurring after the date of this Agreement (or, if the Facility
Agent so requires, confirmation by a duly authorised officer of the relevant
Obligor that no such documents are required).
|
3.
|
CORE COMMERCIAL
AGREEMENTS
|
Copies,
certified true copy by a duly authorised officer of the Borrower, of the Core
Commercial Agreements.
|
4.
|
FINANCE
DOCUMENTS
|
|
4.1
|
Subject
to paragraph 4.4 below, the Finance Documents duly executed by each party
thereto and, where appropriate, duly stamped and presented for
registration with all appropriate
authorities.
|
|
4.2
|
Subject
to paragraph 4.4 below, a copy of each notice required to be executed and
delivered by the Borrower under each of the Security
Documents.
|
|
4.3
|
Subject
to paragraph 4.4 below, a copy of each acknowledgement of the notice
referred to in paragraph 4.2 above by the relevant person under any of the
Security Documents, except that in the case of Insurance Assignment the
Borrower shall use its best efforts to procure the required insurers'
acknowledgement (and, in each case, such
|
- 75 -
|
|
acknowledgements
in respect of the Insurance Assignment shall not be a condition precedent
to first disbursement of an Advance under this
Agreement).
|
|
4.4
|
In
the case where the proceeds of the first Advance are to be utilised to
refinance any outstanding amounts due to the Existing Lenders under the
Existing Credit Agreement, any Security Document (other than the Micron
Corporate Guarantee and the Security Sharing Agreement) referred to in
paragraph 4.1 above shall be left undated and held in escrow by the
Facility Agent until the date of the first Advance and shall be dated on
the date of the first Advance and to be stamped and registered (where
appropriate) thereafter and any notice and acknowledgement (other than the
acknowledgements of the Insurance Assignment which are to be procured by
the Borrower using its best efforts) referred to in paragraphs 4.2 and 4.3
above shall be undated to be held in escrow until the date of the first
Advance.
|
|
4.5
|
The
insurance policies of the Borrower.
|
|
4.6
|
Evidence
of the acceptance of the appointment of the process agents referred to in
the Micron Corporate Guarantee and the Security Sharing
Agreement.
|
|
5.
|
OPINIONS
|
A legal opinion from Xxxxx &
Xxxxxxxx, Singapore counsel to the Finance Parties.
A legal opinion from Xxxxxxx, Xxxxxx,
Xxxxxxx, Rock & Fields, Chartered, U.S. legal counsel to
Micron.
|
6.
|
PROJECT
PRIVILEGES
|
A
certified copy of the 15-year pioneer tax certificate covering the period from 1
April 2007 to 31 March 2022, together with a confirmation from a duly authorised
officer of the Borrower that such certificate is current and the privileges
contemplated therein continue to apply.
|
7.
|
SHAREHOLDINGS
|
A
certificate from the company secretary of the Borrower confirming compliance
with Clause 15.22 (Ownership
of the Borrower).
|
8.
|
INSURANCE
|
Confirmation
from the Insurance Expert in the form of an insurance report issued by it that
the Borrower is insured in accordance with Clause 18.2 (Insurance).
|
9.
|
RELEASE
|
(Where
there are outstanding amounts owing to the Existing Lenders under the Existing
Credit Agreement as of the date of the first Notice of Drawdown), a confirmation
(dated on or around the date of the first Notice of Drawdown) from CIBSL, as
facility agent for the Existing Lenders,
|
|
(a)
|
that
it consents to the entry into of the Finance Documents and confirmation of
the amounts owing to the Existing Lenders under the Existing Credit
Agreement; and
|
|
|
(b)
|
that
it agrees that on receipt of such amounts on the first drawdown date
hereunder, all amounts outstanding under the Existing Credit Agreement
will be
|
- 76 -
|
|
|
discharged
and all security interests granted in respect thereof will be released and
all Existing Security Documents will be discharged;
or
|
(Where
there are no outstanding amounts owing under the Existing Credit Agreement as at
the date of the first Notice of Drawdown) evidence that (a) there are no
outstanding amount owing under the Existing Credit Agreement and (b) the
Existing Security Documents have been discharged.
|
10.
|
OPERATING
ACCOUNTS
|
Evidence
that each of the Operating Accounts have been opened.
|
11.
|
FEES, COSTS AND
EXPENSES
|
Evidence
that the fees, costs and expenses then due from the Borrower pursuant to Clause
20 (Commitment and
Fees) and Clause 21 (Costs and Expenses) have
been paid or will be paid by the date of the first Advance.
|
12.
|
300 MM PRODUCTION CAPACITY
EXPANSION PLAN
|
A copy,
certified true by a duly authorised officer of the Borrower, or an extract, of a
resolution of the board of directors of the Borrower approving the December 2007
business plan relating to the 300mm production capacity expansion plan of the
Borrower.
|
13.
|
DISCHARGE
DOCUMENTS
|
The
documents for the release and discharge of the Existing Security Documents duly
executed by each party thereto, provided that each such document shall be left
undated and held in escrow by the Facility Agent until the date of the first
Advance and shall be dated on the date of the first Advance upon the
confirmation from CIBSL that all amounts outstanding under the Existing Credit
Agreement have been discharged.
- 77 -
Schedule
4
Notice
of Drawdown
From: TECH
Semiconductor Singapore Pte. Ltd.
To: Citicorp
Investment Bank (Singapore) Limited
Dated:
Dear
Sirs,
We refer
to the US$600,000,000 facility agreement (the “Facility Agreement”) dated
[ ] 2008 and made between TECH
Semiconductor Singapore Pte. Ltd. as borrower, Citicorp Investment Bank
(Singapore) Limited as Facility Agent, ABN AMRO Bank N.V., Singapore Branch as
security trustee and the financial institutions named therein as Original
Mandated Lead Arrangers and Banks. Terms defined in the Facility
Agreement shall have the same meaning in this notice.
|
1.
|
This
notice is irrevocable.
|
|
2.
|
We
hereby give you notice that, pursuant to the Facility Agreement and on
[date of proposed Advance], we wish to borrow an Advance in the amount of
US$[ ] upon the terms and subject to the
conditions contained therein.
|
|
3.
|
We
would like this Advance to have a first Interest Period of [ ]
months’ duration.
|
|
4.
|
We
confirm that, at the date hereof, the Repeated Representations [and the
Non-Repeated Representations]**
are true in all material respects and no Event of Default or Potential
Event of Default has occurred and is
continuing.
|
|
5.
|
The
proceeds of this drawdown should be [paid in the following order: (i)
payment to CIBSL (as agent for the Existing Lenders) in satisfaction of
the Loan, interest and all other amounts (if any) outstanding under the
Existing Credit Agreement, (ii) payment to the Facility Agent of upfront
fees (as detailed in the fee letter dated 9 January 2008 between us and
the Original Mandated Lead Arrangers) and (iii) the balance credited to
[insert account details]]t / [credited to
[insert account details]].
|
Yours
faithfully
.............................
[President
or Vice President, Finance]
for and
on behalf of
TECH
Semiconductor
Singapore
Pte. Ltd.
t If this
Advance is the first Advance made under the Agreement and there are outstanding
amounts owing under the Existing Credit Agreement as at the date of this Notice
of Drawdown.
** If
this Advance is the first Advance made under the Facility
- 78 -
Schedule
5
Form
of Compliance Certificate
To: [ ]
as Facility Agent
From: TECH
Semiconductor Singapore Pte Ltd
Dated:
US$600,000,000
Facility Agreement dated
[ ]
2008 (the “Agreement”) between TECH Semiconductor Singapore Pte Ltd as Borrower,
Citicorp Investment Bank (Singapore) Limited as Facility Agent and ABN AMRO Bank
N.V., Singapore Branch as Security Trustee and the Original Mandated Lead
Arrangers and Banks referred to therein
|
1.
|
We
refer to the Agreement. This is a Compliance Certificate. Terms defined in
the Agreement have the same meaning when used in this Compliance
Certificate unless given a different meaning in this Compliance
Certificate.
|
|
2.
|
We
confirm that: [Insert details of covenants to be
certified]
|
Yours
faithfully
.............................
[President
or Vice President, Finance]
for and
on behalf of
TECH
Semiconductor
Singapore
Pte. Ltd.
- 79 -
Schedule
6
Confidentiality
Undertaking
[Letterhead
of Finance Party]
To: [Proposed
Assignee/Transferee/Sub-participant]
Dear
Sirs
US$600,000,000
Facility Agreement dated
[ ]
2008 (the “Agreement”) between TECH Semiconductor Singapore Pte Ltd as Borrower,
Citicorp Investment Bank (Singapore) Limited as Facility Agent and ABN AMRO Bank
N.V., Singapore Branch as Security Trustee and the Original Mandated Lead
Arrangers and Banks referred to therein
We
understand that you are considering acquiring an interest in the Agreement
referred to above (the “Acquisition”). In consideration of us
agreeing to make available to you certain information, by signature by your duly
authorised signatory of a copy of this letter you agree as follows:
|
3.
|
Confidentiality
Undertaking You undertake (a) to keep the Confidential
Information confidential and not to disclose it to anyone except as
provided for by paragraph 2 below and to ensure that the Confidential
Information is protected with security measures and a degree of care that
would apply to your own confidential information, (b) to use the
Confidential Information only for the Permitted Purpose, and (c) to use
all reasonable endeavours to ensure that any person (as may be permitted
in this undertaking) to whom you pass any Confidential Information (unless
disclosed under paragraph 2(c) below) acknowledges and complies with the
provisions of this letter as if that person were also a party to
it.
|
|
4.
|
Permitted
Disclosure We agree that you may disclose Confidential
Information:
|
|
|
(a)
|
to
your officers, directors, employees and professional advisers to the
extent necessary for the Permitted Purpose and to your
auditors;
|
|
|
(b)
|
subject
to the requirements of the Agreement, to any person to (or through) whom
you are permitted to assign or transfer (or may potentially assign or
transfer) all or any of the rights, benefits and obligations which you may
acquire under the Agreement or with (or through) whom you enter into (or
may potentially enter into) any sub-participation in relation to, or any
other transaction under which payments are to be made by reference to, the
Agreement or the Borrower so long as that person has delivered a duly
executed letter to you in equivalent form to this letter;
and
|
|
|
(c)
|
where
requested or required by any court of competent jurisdiction or any
competent judicial, governmental, supervisory or regulatory body, (ii)
where required by the rules of any stock exchange on which the shares or
other securities of any member of the Purchaser Group are listed or (iii)
where required by the laws or regulations of any country with jurisdiction
over the affairs of any member of the Purchaser Group, after obtaining a
legal opinion to such effect.
|
- 80 -
|
5.
|
Notification of Required or
Unauthorised Disclosure You agree (to the extent permitted by law)
to inform us of the full circumstances of any disclosure under
paragraph 2(c) or upon becoming aware that Confidential Information
has been disclosed in breach of this
letter.
|
|
6.
|
Return of
Copies If we or the Borrower so request in writing, you
shall return all Confidential Information supplied to you by us and
destroy or permanently erase all copies of Confidential Information made
by you and use all reasonable endeavours to ensure that anyone to whom you
have supplied any Confidential Information destroys or permanently erases
such Confidential Information and any copies made by them, in each case
save to the extent that you or the recipients are required to retain any
such Confidential Information by any applicable law, rule or regulation or
by any competent judicial, governmental, supervisory or regulatory body or
where the Confidential Information has been disclosed under
paragraph 2(c) above.
|
|
7.
|
Continuing
Obligations The obligations in this letter are
continuing and, in particular, shall survive the termination of any
discussions or negotiations between you and us. Notwithstanding
the previous sentence, the obligations in this letter shall cease if you
become a party to or otherwise acquire (by assignment or
sub-participation) an interest, direct or indirect, in the Agreement in
which case you agree and acknowledge that you are bound by the provisions
of Clause 30.7 of the Agreement.
|
|
8.
|
Consequences of Breach, No
Representation, etc. You acknowledge and agree
that:
|
|
|
(a)
|
neither
we, the Borrower nor any of our or their respective officers, employees,
agents or advisers (each a “Relevant Person”) (i)
make any representation or warranty, express or implied, as to, or assume
any responsibility for, the accuracy, reliability or completeness of any
of the Confidential Information or any other information supplied by us or
the assumptions on which it is based or (ii) shall be under any obligation
to update or correct any inaccuracy in the Confidential Information or any
other information supplied by us or be otherwise liable to you or any
other person in respect to the Confidential Information or any such
information; and
|
|
|
(b)
|
we
or the Borrower may be irreparably harmed by the breach of the terms
hereof and damages may not be an adequate remedy; each Relevant Person may
be granted an injunction or specific performance for any threatened or
actual breach of the provisions of this letter by
you.
|
|
9.
|
No Waiver; Amendments,
etc This letter sets out the full extent of your
obligations of confidentiality owed to us in relation to the information
the subject of this letter. No failure or delay in exercising
any right, power or privilege hereunder will operate as a waiver thereof
nor will any single or partial exercise of any right, power or privilege
preclude any further exercise thereof or the exercise of any other right,
power or privileges hereunder. The terms of this letter and
your obligations hereunder may only be amended or modified by written
agreement between us.
|
|
10.
|
Inside
Information You acknowledge that some or all of the
Confidential Information is or may be price-sensitive information and that
the use of such information may be regulated or prohibited by applicable
legislation relating to insider dealing and you undertake not to use any
Confidential Information for any unlawful
purpose.
|
- 81 -
|
11.
|
Nature of
Undertakings The undertakings given by you under this
letter are given to us and (without implying any fiduciary obligations on
our part) are also given for the benefit of the
Borrower.
|
|
12.
|
Governing Law and
Jurisdiction This letter (including the agreement
constituted by your acknowledgement of its terms) shall be governed by and
construed in accordance with the laws of Singapore and the parties submit
to the non-exclusive jurisdiction of the Singapore
courts.
|
|
13.
|
Definitions In
this letter (including the acknowledgement set out below) terms defined in
the Agreement shall, unless the context otherwise requires, have the same
meaning and:
|
“Confidential Information”
means any information relating to the Borrower, Micron, the Agreement and/or the
Acquisition provided to you by us or any of our affiliates or advisers, in
whatever form, and includes information given orally and any document,
electronic file or any other way of representing or recording information which
contains or is derived or copied from such information but excludes information
that (a) is or becomes public knowledge other than as a direct or indirect
result of any breach of this letter or (b) is known by you before the date the
information is disclosed to you by us or any of our affiliates or advisers or is
lawfully obtained by you thereafter, other than from a source which is connected
with the Borrower and which, in either case, as far as you are aware after
having made reasonable enquiry, has not been obtained in violation of, and is
not otherwise subject to, any obligation of confidentiality;
“Permitted Purpose” means
considering and evaluating whether to enter into the Acquisition;
and
“Purchaser Group” means you,
each of your holding companies and subsidiaries and each subsidiary of each of
your holding companies.
Please
acknowledge your agreement to the above by signing and returning the enclosed
copy.
Yours
faithfully
…................................
For and
on behalf of
[Finance
Party]
To: [Finance
Party]
We
acknowledge and agree to the above:
…................................
For and
on behalf of
[ ]
- 82 -
Schedule
7
Standing
Payment Instructions
ABN
AMRO BANK N.V., SINGAPORE BRANCH
USD
Payment Instruction for arrangement fee payments/ principal / interest
payments:
Correspondence
Bank: ABN AMRO BANK, N.V. NEW YORK
SWIFT
Code: XXXXXX00
For the
Account of: ABN AMRO BANK, N.V. SINGAPORE
SWIFT
Code: XXXXXXXX
Account
no.: 000-000-000000 CHIPS UID 011591
Reference:
TECH Semiconductor - Agency Asia
BANK
OF TAIWAN, SINGAPORE BRANCH
Pay to:
XX Xxxxxx Chase Bank, New York
SWIFT
BIC: XXXXXX00
For
account of: Bank of Taiwan, Singapore Branch
SWIFT
BIC: XXXXXXXX
Xxx XXXXX
XXX 000000
BANK
SINOPAC, OFFSHORE BANKING BRANCH
Correspondent
Bank: Citibank N.A., New York
SWIFT
Code of Correspondent Bank: XXXXXX00
Account
Name: Bank SinoPac
SWIFT
Code of Bank SinoPAc: XXXXXXXX
Account
Number: 00000000
Reference:
Tech Semiconductor PTE Ltd.
BAYERISCHE
HYPO- UND VEREINSBANK AG, SINGAPORE BRANCH
XX Xxxxxx
Xxxxx Bank, New York (XXXXXX00)
For the
account of: Bayerische Hypo- und Vereinsbank AG, Singapore Branch
CHIPS UID
355366
- 83 -
Account
no. 000-0-000000
Ref: Tech
Semiconductor Singapore Pte Ltd
CHINA
DEVELOPMENT BANK
Intermediary Bank’s
Details
Name: HSBC
Bank USA New York
Country
and City: USA New York
SWIFT
Address & Clearing Code: XXXXXX00XXX
Beneficiary Bank’s
Details
Name: China
Development Industrial Bank
Country
and City: Taipei, Taiwan
SWIFT
Address & Clearing Code: XXXXXXXXXXX
Account
No.: 000142786
Beneficiary’s
Details
Name:
TECH Semiconductor Singapore Pte. Ltd.
Country
and City: Singapore
SWIFT
Address & Clearing Code: SGCT0007
Payment
Details: Syndication Loan
CITIBANK,
N.A., SINGAPORE BRANCH
For
account: Citibank N.A., New York (XXXXXX00)
In Favor
of : Citibank N.A., Singapore (CITISGSG)
Account
No: 00000000
Attention:
Xxxxxx Xxxx
DBS
BANK LTD
For
account: Bank of New York, New York
SWIFT
Code: XXXXXX0X
In favour
of: DBS Bank Ltd, Singapore
- 84 -
SWIFT
Code: XXXXXXXX
Reference:
TECH Semiconductor Singapore Pte Ltd - US$600 million Syndicated
Facility
Attention:
Xxxxxxxxxx Xxx / Xxxxxxxxx Xxxx, CIB-Communication, Media &
Technology]
ENTIE
COMMERCIAL BANK
Name of
Bank: Bank of New York, New York
SWIFT
Code: XXXXXX0X
Beneficiary:
EnTie Commercial Bank Taipei, Taiwan
SWIFT
Code: XXXXXXXX
Beneficiary:A/C
NO. 000-0000-000
FAR
EASTERN INTERNATIONAL BANK
Bank
Name: Citibank N.A., New York
SWIFT
Code: XXXXXX00
Account
No. 00000000
Beneficiary:
Far Eastern International Bank
Beneficiary
Bank’s SWIFT Code: XXXXXXXX
INDUSTRIAL
BANK OF TAIWAN
Corresponding
Bank: Wachovia Bank N.A. New York Branch
SWIFT
Code: XXXXXX0XXXX
Account
name: Industrial Bank of Taiwan OBU Branch
Account
No. 2000191002339
SWIFT
Code: XXXXXXXX
XXX
XXX COMMERCIAL BANK, LTD., SINGAPORE BRANCH
Correspondent
Bank: XX Xxxxxx Xxxxx Bank, New York
SWIFT
Code: XXXXXX00
Account
No. 000-0-000000
Beneficiary:
Xxx Xxx Commercial Bank. Ltd., Singapore Branch
SWIFT
Code: XXXXXXXX
- 85 -
LAND
BANK OF TAIWAN, SINGAPORE BRANCH
Correspondent
Bank: The Bank of New York, New York
SWIFT
Address: IRVT US3N
Account
No. 000-0000-000
For
Account of: Land Bank of Taiwan, Singapore Branch
SWIFT
Address: LBOT SGSG
Reference:
TECH 2008-03-26
Attention:
Xxxxxx X.X. Xxxxx / Xxxxxxxxx Xxx
MEGA
INTERNATIONAL COMMERCIAL BANK CO. LTD, SINGAPORE BRANCH
Correspondent
Bank: Mega International Commercial Bank Co., Ltd., New York
SWIFT:
ICBCUS33
For the
account of: Mega International Commercial Bank Co., Ltd., Singapore
Branch
SWIFT:
ICBCSGSG
Account
Number: USD300596
OVERSEA-CHINESE
BANKING CORPORATION LIMITED
Intermediary Bank’s
Details
Name:
JPMorgan Chase
Country
and City: New York
SWIFT
Address & Clearing Code: XXXXXX00 (Chips UID10275)
Beneficiary Bank’s
Details
Name: Oversea-Chinese
Banking Corporation Ltd
Country
and City: Singapore
SWIFT
Address & Clearing Code: XXXXXXXX
RHB
BANK BHD (SINGAPORE BRANCH)
Name:
Bank of New York, New York
BIC Code:
XXXXXX0X
- 86 -
Account
No: 000-0000-000
CHIPS
UID: 024880
Remarks:
(For account of Corporate & Commercial Banking - TECH Semiconductor
Singapore Pte Ltd)
THE
SHANGHAI COMMERCIAL & SAVINGS BANK. LTD
Correspondent
Bank: Citibank N.A.
SWIFT
Code: XXXXXX00
Beneficiary:
The Shanghai Commercial & Savings Bank. Ltd, Offshore Banking
Branch
Bank
Name: The Shanghai Commercial & Savings Bank. Ltd, Offshore Banking
Branch
SWIFT
Code: XXXXXXXXX00
Remarks:
TECH Semiconductor Singapore Pte (2)
SUMITOMO
MITSUI BANKING CORPORATION, SINGAPORE BRANCH
Bank: XX
Xxxxxx Xxxxx Bank, New York (XXXXXX00)
Account
name: Sumitomo Mitsui Banking Corporation, Singapore Branch
Account
No. 000-0-000000 CHIPS UID 141695
SWIFT:
SMBCSGSG
RAIFFEISEN
ZENTRALBANK XXXXXXXXXXX XX, SINGAPORE BRANCH
Name of
Bank: XX Xxxxxx Xxxxx Bank, New York
SWIFT ID:
CHASUS 33
VIA CHIPS
UID: 373362
Favouring:
Raiffeisen Zentralbank Xxxxxxxxxxx XX, Singapore Branch
Re: TECH
Semiconductor Pte Ltd Singapore (Fees/Interest)
SUNNY
BANK OFFSHORE BANKING UNIT
Bank
name: Sunny Bank (in favour of Sunny Bank OBU Branch)
Bank
Code: XXXXXXXX
Bank
Account for Cash Payment: 2000191001741
Correspondent
Code: PNBPUS3NNYC (Wachovia Bank NA NY INTL BR.)
- 87 -
TAIPEI
FUBON COMMERCIAL BANK
Name of
Bank: Citibank N.A., New York
SWIFT
Code: XXXXXX00
Beneficiary
Bank name: Taipei Fubon Bank, Offshore Banking Unit
SWIFT
BIC: XXXXXXXX000
Account
Name: Tech Semiconductor
Account
No. 56011 33100 1150
TAISHIN
INTERNATIONAL BANK
Name of
Bank: Citibank N.A., New York
Beneficiary
Bank: Taishin International Bank
Account
No.: 00000000
SWIFT
Code: XXXXXX00
Beneficiary
Bank’s Swift Code: XXXXXXXX
XX
XXXXX BANK LTD.
Correspondent
Bank: Citibank N.A., New York, N.Y.
Correspondent
Bank SWIFT Code: XXXXXX00
Beneficiary
Customer: Xx Xxxxx Bank Ltd
Beneficiary
SWIFT Code: XXXXXXXX
Beneficiary
Bank Account No.: 00000000
Reference
Information: TECH Semiconductor Singapore Pte. Ltd.
UNITED
OVERSEAS BANK LIMITED
Pay to:
Deutsche Bank Trust Co Americas, New York
SWIFT
Address: XXXXXX00
For
account of: United Overseas Bank Limited, Singapore
CHIPS UID
010762
SWIFT
Address: XXXXXXXX
Attention:
CCOCD - Loan Processing Unit
Reference:
Payment for Tech Semiconductor US$600m Credit Facility,.
- 88 -
SIGNATURES
TECH
SEMICONDUCTOR SINGAPORE PTE. LTD.
as
Borrower
|
By:
|
SGD
XXX XXX XXXX
|
|
Address:
|
0,
Xxxxxxxxx Xxxxxxxxxx Xxxx X
|
|
Xxxxxx
0, Xxxxxxxxx 000000
|
|
|
Fax:
|
0000
0000
|
|
Attention:
|
Vice
President, Finance
|
- 89 -
ABN
AMRO BANK N.V.
as
Original Mandated Lead Arranger
|
By:
|
SGD
XXXX XXXXXXXXX (EXECUTIVE DIRECTOR)
|
SGD
XXXXXX XXXX (DIRECTOR)
|
|
|
||
|
Address:
|
00/X
Xxxxxx Xxxx Xxxxxx, 0 Xxxxx’x Xxxx Xxxxxxx, Xxxx Xxxx
|
|
|
Fax:
|
x000
0000 0000
|
|
|
Attention:
|
Xxxx
Xxxxxxxxx
|
|
|
E-mail:
|
xxxx.xxxxxxxxx@xx.xxxxxxx.xxx
|
- 90 -
ABN
AMRO BANK N.V., SINGAPORE BRANCH
as
Bank
|
By:
|
SGD
XXXXXX XXXX (DIRECTOR)
|
SGD
XXXXX XXX (RELATIONSHIP MANAGER)
|
|
Address:
|
Xxxxx
00, Xxx Xxxxxxx Xxxx Xxxxx Xxxxx, Xxxxxxxxx 000000 / 38/F Xxxxxx Xxxx
Xxxxxx, 0 Xxxxx’x Xxxx Xxxxxxx, Xxxx Xxxx
|
|
|
Fax:
|
x00
0000 0000 / x000 0000 0000
|
|
|
Attention:
|
Xxxxxx
Xxxx / Xxxxxxx Xxxx
|
|
|
E-mail:
|
xxxxxx.xxxx@xx.xxxxxxx.xxx
/ xxxxxxx.xxxx@xx.xxxxxxx.xxx
|
- 91 -
ABN
AMRO BANK N.V., SINGAPORE BRANCH
as
Security Trustee
|
By:
|
SGD
XXXXX XXXX (MANAGER)
|
SGD
XXXXX XX (ASSISTANT MANAGER)
|
|
Address:
|
Xxx
Xxxxxxx Xxxx
|
|
|
Xxxxx
Xxxxx, Xxxxx 00
|
||
|
Xxxxxxxxx
000000
|
||
|
Fax:
|
x00
0000 0000 / 6012
|
|
|
Attention:
|
Xxxx
Xxxx Xxxx / Xxxxx Xx
|
|
|
E-mail:
|
xxxx.xxxx.xxxx@xx.xxxxxxx.xxx
/ xxxxx.xx@xx.xxxxxxx.xxx
|
- 92 -
CITIGROUP
GLOBAL MARKETS SINGAPORE PTE LTD
as
Mandated Lead Arranger
|
By:
|
SGD
XXXXX CHNG (DIRECTOR)
|
|
Address:
|
Citigroup
Global Markets Singapore Pte. Ltd.
|
|
|
00X, Xxxxxxxx Tower, Xxxxxxxx Xxxxx |
|
Xx.
0 Xxxxxx Xxxx, Xxxxxxx
|
|
|
Xxxx
Xxxx
|
|
|
Fax:
|
x000
0000 0000 / x000 0000 0000
|
|
Attention:
|
Xxxxxxxx
Xxxxxxxxxxx / Xxxxx Xxxxx
|
|
E-mail:
|
xxxxxxxx.xxxxxxxxxxx@xxxx.xxx
/ xxxxx.xxxxx@xxxx.xxx
|
- 93 -
CITIBANK,
N.A., SINGAPORE BRANCH
as
Mandated Lead Arranger and Bank
|
By:
|
SGD
XXXXX XXX (MANAGING DIRECTOR, HEAD OF CORPORATE BANK,
SINGAPORE)
|
|
Address:
|
0
Xxxxxxx Xxxxxx
|
|
#00-00
Xxxxxxxxxx Xxxxx
|
|
|
Xxxxxxxxx
000000
|
|
|
Fax:
|
0000-0000
/ 0000-0000
|
|
Attention:
|
Xxxxxxxx
Xxx / Xxx Xxxx / Xxxxxx Xxxx
|
|
E-mail:
|
xxxxxxxx.xx.xxx@xxxx.xxx
/ xxxx.xxx@xxxx.xxx /
xxxxxx.xxxx@xxxx.xxx
|
- 94 -
CITICORP
INVESTMENT BANK (SINGAPORE) LIMITED
as
Facility Agent
|
By:
|
SGD
XXXXX XXX
|
|
SENIOR
VICE PRESIDENT
|
|
|
Address:
|
#00-00
Xxxxxxxx Xxxxxxxx
|
|
000
Xxxxxxxx Xxxxxx 0
|
|
|
Xxxxxxxxx
000000
|
|
|
Fax:
|
(00)
0000 0000
|
|
Attention:
|
Xxxxxxx
Xxxx / Xxxx Au, Loans Agency Department
|
|
E-mail:
|
xxxxxxx.xxxx@xxxx.xxx
/
xxxx.x.xx@xxxx.xxx
|
- 95 -
DBS
BANK LTD
as
Original Mandated Lead Arranger and Bank
|
By:
|
SGD
XXXXXXX XXXX XXXX ENG (SENIOR VICE PRESIDENT)
|
|
CORPORATE
AND INVESTMENT BANKING - SYNDICATED FINANCE
|
|
|
Address:
|
0
Xxxxxxx Xxx
|
|
XXX
Xxxxxxxx Xxxxx Xxx
|
|
|
Xxxxxxxxx
000000
|
|
|
Fax:
|
0000
0000
|
|
Attention:
|
Xxxxxx
Xxx / Xxxxxxxxxx Xxx/ Xxxxxxxxx Xxxx, CIB-Communication, Media &
Technology
|
|
E-mail:
|
xxxxxxxxx@xxx.xxx
/ xxxxxxxx@xxx.xxx /
xxxxxxxxxxxxx@xxx.xxx
|
- 96 -
OVERSEA-CHINESE
BANKING CORPORATION LIMITED
as
Original Mandated Lead Arranger
|
By:
|
SGD
TAN XXX XXXX (HEAD OF CAPITAL MARKETS)
|
|
Address:
|
00
Xxxxxx Xxxxxx #00-00 XXXX Xxxxxx Xxxxxxxxx 000000
|
|
Fax:
|
0000-0000
|
|
Attention:
|
Tham
Kong Xxxx
|
|
E-mail:
|
xxxxxxxxxxxx@xxxx.xxx
|
- 97 -
OVERSEA-CHINESE
BANKING CORPORATION LIMITED
as
Bank
|
By:
|
SGD
TAN XXX XXXX (HEAD OF CAPITAL MARKETS)
|
|
Address:
|
00
Xxxxxx Xxxxxx #00-00 XXXX Xxxxxx Xxxxxxxxx 000000
|
|
Fax:
|
0000-0000
|
|
Attention:
|
Xxxxx
Xx
|
|
E-mail:
|
xxxxxxxxx@xxxx.xxx
|
- 98 -
BANK
OF TAIWAN, SINGAPORE BRANCH
as
Bank
|
By:
|
SGD
HO XXX XXXXX (GENERAL MANAGER)
|
|
Address:
|
00
Xxxxxxx Xxxxx
|
|
#00-00,
XXX Xxxxx 0
|
|
|
Xxxxxxxxx
000000
|
|
|
Fax:
|
(00)
0000 0000
|
|
Attention:
|
Xx.
Xxxxx Xxx / Mr. Xxxxx Xxxx
|
|
E-mail:
|
xxxxx@xxxxx.xxx.xx
/ xxxxxx@xxxxx.xxx.xx
|
- 99 -
BANK
SINOPAC, OFFSHORE BANKING BRANCH
as
Bank
|
By:
|
SGD
XXXXX X. X. XXX
|
|
TITLE:
FIRST VICE PRESIDENT AND GENERAL MANAGER
|
|
|
Address:
|
00X,
0-0, Xxxxx Xxx X.Xx., Xxx 0, Xxxxxx 000, Xxxxxx, ROC / 0X, 00 Xx-xx
Xx.,
|
|
Xxxxxxxxxx
Xxxxxxxx, Xxxxxx 000, Xxxxxx (R.O.C.)
|
|
|
Fax:
|
x000
0 0000 0000 / + 000 0 0000 0000
|
|
Attention:
|
Kofei
Chien / Xxxxxxx Xxxx
|
|
E-mail:
|
xxxxxxxxxx@xxxxxxx.xxx
/ Xxxxxxx.xxxx@xxxxxxx.xxx
|
- 000 -
XXXXXXXXXX
XXXX- XXX XXXXXXXXXXX XX, XXXXXXXXX BRANCH
as
Bank
|
By:
|
SGD
TAN XXXX XXXX (VICE PRESIDENT)
|
SGD
SOO THEAN LING (MANAGING DIRECTOR, HEAD OF CREDIT RISK - ASIA
PACIFIC)
|
|
Address:
|
00
Xxxxx Xxxxxx #00-00
|
|
|
Xxxxxxxxxx
Xxxxx
|
||
|
Xxxxxxxxx
000000
|
||
|
Fax:
|
(00)
00000 000
|
|
|
Attention:
|
Xx
Xxxxx Xxx Xxx / Xx Xxxx Xxx Xxx / Xx Xxx Xxxx Xxxx
|
|
|
E-mail:
|
xxx.xxx.xxxxx@xxxxxxx.xxx
/ xxxxxx.xxxx@xxxxxxx.xxx / xxxxxxxx.xxx@xxxxxxx.xxx
|
- 101 -
CHINA
DEVELOPMENT INDUSRTIAL BANK
as
Bank
|
By:
|
SGD
XXXXX XXXX (SENIOR VICE PRESIDENT)
|
|
Address:
|
1
Fl,
|
|
Xx.
000 Xxxxxxx Xxxx Xxxx,
|
|
|
Xxxxxxx
0,
|
|
|
Xxxxxx
000,
|
|
|
Xxxxxx,
ROC
|
|
|
Fax:
|
(000)
000000000
|
|
Attention:
|
Xxxxx
Xxx, Assistant Vice President, Institutional Banking
Department
|
|
E-mail:
|
xxxxxxxxx@xxxxxxx.xxx
|
- 102 -
ENTIE
COMMERCIAL BANK
as
Bank
|
By:
|
SGD
XXXX XXX HUA
|
|
Address:
|
Xx.000,Xxx.0,Xxxxxxxx
Xxxx Xx .,Xxxxxx,Xxxxxx,X.X.X
|
|
Fax:
|
000-0-0000-0000
|
|
Attention:
|
Xxxx
Xxxx
|
|
E-mail:
|
- 103 -
FAR
EASTERN INTERNATIONAL BANK
as
Bank
|
By:
|
SGD
劉文仲 (Manager)
|
|
Address:
|
26F,
No. 207. Xxx Xxx X. Xx., Xxx., 0, Xxxxxx
|
|
000,
Xxxxxx, X.X.X.
|
|
|
Fax:
|
000
0 0000 0000
|
|
Attention:
|
Xxxx
Xx / Xxxxxxx Xxxx
|
|
E-mail:
|
xxxxxx@xxxx.xxx.xx
/ xxxxxxxxx@xxxx.xxx.xx
|
- 104 -
INDUSTRIAL
BANK OF TAIWAN
as
Bank
|
By:
|
SGD
XXXXXX XXXXX (SENIOR VICE PRESIDENT)
|
|
Address:
|
Xx.
00, Xxx. 0
|
|
Xxxxxx
Xxxx., Xxxxx Xxxxxxxx
|
|
|
Xxxxxx,
Xxxxxx, R.O.C.
|
|
|
Fax:
|
|
|
Attention:
|
Xxxx
Xxxx
|
|
E-mail:
|
xxxxxxxxxxx@xxx.xxx.xx
|
- 105 -
XXX
XXX COMMERCIAL BANK, LTD. SINGAPOR BRANCH
as
Bank
|
By:
|
SGD
XXXXX Y. L. XXXXX (GENERAL MANAGER)
|
|
Address:
|
00,
Xxxxxxxx Xxxx, #00-00,
|
|
Xxxxxxxxx
000000
|
|
|
Fax:
|
(00)
0000 0000
|
|
Attention:
|
Xx.
Xxxx Xxx / Ms. Xxxxx Soon / Xx. Xxxxx Xxxxx
|
|
E-mail:
|
xxxxxx@xxxx.xxx.xx
|
- 106 -
LAND
BANK OF TAIWAN, SINGAPORE BRANCH
as
Bank
|
By:
|
SGD
XXXXX XXX HOU (GENERAL MANAGER)
|
|
Address:
|
00
Xxxxxxx Xxxxx
|
|
#00-00,
XXX Xxxxx 0
|
|
|
Xxxxxxxxx
000000
|
|
|
Fax:
|
(00)
0000 0000 / (00) 0000 0000
|
|
Attention:
|
Xxxxxx
X.X. Xxxxx / Xxxxxxxxx Xxx, Loan Admin Department
|
|
E-mail:
|
000000@xxxxxxxx.xxx.xx
/ xx0000@xxxxxxxx.xxx.xx
|
- 107 -
MEGA
INTERNATIONAL COMMERCIAL BANK CO. LTD, SINGAPORE BRANCH
as
Bank
|
By:
|
SGD
XXXXX XXXXX-HO (VICE PRESIDENT & GENERAL PRESIDENT &
GENERAL
|
|
Address:
|
|
|
Fax:
|
(00)
0000-0000
|
|
Attention:
|
Xx.
Xxxx Xxxxx Xxx / Lock Ten Khai
|
|
E-mail:
|
xxxxxxxx@xxxxxxx.xxx.xx
|
- 108 -
RHB
BANK BHD (SINGAPORE BRANCH)
as
Bank
|
By:
|
SGD
XXXXX XXXX (HEAD OF CORPORATE & COMMERCIAL BANKING)
|
|
Address:
|
00,
Xxxxx Xxxxxx #00-00
|
|
Xxxxxxxxx
& Xxxxxxxxxx Xxxxxxx
|
|
|
Xxxxxxxxx
0000000
|
|
|
Fax:
|
0000
0000
|
|
Attention:
|
Xx
Xxxxxx Xxxx / Xxx Xxx Choo
|
|
E-mail:
|
xxxxxx_xxxx@xxxxxxx.xxx.xx
/
xxx_xxx_xxxx@xxxxxxx.xxx.xx
|
- 000 -
XXXXXXXXXX
XXXXXXXXXXX XXXXXXXXXXX XX, XXXXXXXXX BRANCH
as
Bank
|
By:
|
SGD
XXXXXX XXXXXX (DIRECTOR, HEAD OF INVESTMENTS AND CREDIT TRADING, GLOBAL
MARKETS ASIA)
|
|
Address:
|
Xxx
Xxxxxxx Xxxx #00-00 Xxxxx Xxxxx
|
|
Xxxxxxxxx
000000
|
|
|
Fax:
|
(x00)
0000 0000
|
|
Attention:
|
Xxxxx
XXXX / Xxxxxx WEE / Xxxxxx XXX / Xxxxxx XXXX / Xxxx Xxx
KOH
|
|
E-mail:
|
xxxxx.xxxx@xx.xxx.xx
/ Xxxxxx.xxx@xx.xxx.xx / Xxxxxx.xxx@xx.xxx.xx / Xxxxxx.xxxx@xx.xxx.xx /
xxxxxxx.xxx@xx.xxx.xx
|
- 110 -
THE
SHANGHAI COMMERCIAL & SAVINGS BANK. LTD
as
Bank
|
By:
|
SGD
XXXX XXXX (SENIOR VICE PRESIDENT & MANAGER)
|
|
Address:
|
50,
SEC. 0 Xxxx Xxxxx Xx.,
|
|
Xx
Xxxxx Xxxx Xxxxxx Xxxx
|
|
|
Xxxxxx
R.O.C.
|
|
|
Fax:
|
000-0-0000-0000
|
|
Attention:
|
Xxxx
Xxxx, Assistance V.P.
|
|
E-mail:
|
xxxxxxx@xxxx.xxx.xx
|
- 111 -
SUMITOMO
MITSUI BANKING CORPORATION, SINGAPORE BRANCH
as
Bank
|
By:
|
SGD
XXXXXX XXXXXXXX
|
|
JOINT
GENERAL MANAGER
|
|
|
Address:
|
0
Xxxxxxx Xxxxxx
|
|
#00-00
Xxxxxxxxxx Xxxxx
|
|
|
Xxxxxxxxx
000000
|
|
|
Fax:
|
00-0000
0000
|
|
Attention:
|
Xxx
Xxx Choo
|
|
E-mail:
|
xxx_xxxxxxx@xx.xxxx.xx.xx
|
- 112 -
SUNNY
BANK OFFSHORE BANKING UNIT
as
Bank
|
By:
|
SGD
XXXX XXXX
|
|
MANAGER
|
|
|
Address:
|
0X
Xx.000 Xx Xxxx X Xxxx,
|
|
Xxxxxx
|
|
|
Xxxxxx
|
|
|
Fax:
|
000
0 000 00000
|
|
Attention:
|
Ming-Xx
Xx
|
|
E-mail:
|
x00000@xxxxxxxxx.xxx.xx
|
- 113 -
TAIPEI
FUBON COMMERCIAL BANK
as
Bank
|
By:
|
SGD
XXXXXX XXXX (SENIOR VICE PRESIDENT)
|
|
Address:
|
6th
Floor
|
|
Xx.
000
|
|
|
Xxxxxxx
0 Xxx Xx Xxxx
|
|
|
Xxxxxx
00000 Xxxxxx
|
|
|
Fax:
|
x000-0-0000-0000
|
|
Attention:
|
Xx.
Xxxxxx Xxxx
|
|
E-mail:
|
xxxxxx.xxxx@xxxxx.xxx
|
- 114 -
TAISHIN
INTERNATIONAL BANK
as
Bank
|
By:
|
SGD
XXX XXX
|
|
Address:
|
10F.,
Xx 000, Xxx.0, Xxx-xx Xx. Xx-xx Xxxxxxxx, Xxxxxx Xxxx
|
|
106,
Taiwan (R.O.C.)
|
|
|
Fax:
|
000-0-0000-0000
|
|
Attention:
|
Xxx
Xxx
|
| Email: |
- 115 -
XX
XXXXX BANK LTD.
as
Bank
|
By:
|
XXXXXX-XXXX
XXXX (CHAIRMAN)
|
|
Address:
|
Xx.
000, Xxxx Xxx X Xxxx
|
|
|
Xxxxxx, Xxxxxx, X.X.X. |
|
Fax:
|
00-0-0000-0000
|
|
Attention:
|
Kao
Xxx Xx
|
|
Email:
|
- 116 -
UNITED
OVERSEAS BANK LIMITED
as
Bank
|
By:
|
SGD
TAN KET KIONG (SENIOR VICE PRESIDENT)
|
|
Address:
|
0
Xxxxxxx Xxxxx
|
|
#00-00
XXX Xxxxxx
|
|
|
Xxxxxxxxx
000000
|
|
|
Fax:
|
00000000
/ 00000000
|
|
Attention:
|
Xx
Xxx Tit Thiam / Xx Xxxxxxxx Xxx / Xx Xxxxxx Xxxx
|
|
E-mail:
|
Xxx.XxxXxxxx@XXXxxxxx.xxx
/ Xxxxxxxx.XxxXX@XXXxxxxx.xxx /
Xxxxxx.XxxxXX@XXXxxxxx.xxx
|
- 117 -
L:\fsdcomm\kcw\2008000324
(TECH)\Facility Agreement\FA v.16 (Conformed).doc
- 118 -
