EXHIBIT 6.2
[XXXXX & XXXXXXXX LETTERHEAD]
Dated 28 June 2002
CHARTERED SILICON PARTNERS PTE LTD
as Borrower
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
as CSM
and
ABN AMRO BANK N.V., SINGAPORE BRANCH
as Agent
SUBORDINATION AGREEMENT
TABLE OF CONTENTS
CONTENTS PAGE
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1. INTERPRETATION 1
2. SUBORDINATION 2
3. AGREEMENT BY BORROWER AND CSM 4
4. REPRESENTATIONS AND WARRANTIES 5
5. UNDERTAKINGS 6
6. PAYMENTS 6
7. NATURE OF RIGHTS AND OBLIGATIONS 8
8. EXPENSES 9
9. BENEFIT OF AGREEMENT 9
10. WAIVERS 10
11. COMMUNICATIONS 10
12. PARTIAL INVALIDITY 11
13. GOVERNING LAW 11
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THIS AGREEMENT is made on 28 June 2002 BETWEEN:
(1) CHARTERED SILICON PARTNERS PTE LTD (the "BORROWER");
(2) CHARTERED SEMICONDUCTOR MANUFACTURING LTD ("CSM"); and
(3) ABN AMRO BANK N.V., SINGAPORE BRANCH, in its capacity as agent for itself
and the Banks defined below (in such capacity, the "AGENT").
WHEREAS:
(A) By a Credit Agreement dated 12 March 1998 (the "CREDIT AGREEMENT", which
expression shall include the Credit Agreement as supplemented by the First
Supplemental Agreement dated 14 December 1998 made between the parties to
the Credit Agreement, the Second Supplemental Agreement dated 9 November
1999 made between the parties to the Credit Agreement, the Third
Supplemental Agreement dated 14 December, 2000 made between the parties to
the Credit Agreement and ABN AMRO Bank N.V., Singapore Branch (the
"SECURITY TRUSTEE"), as security trustee, and the Fourth Supplemental
Agreement dated 21 May 2002 made between the parties to the Credit
Agreement and the Security Trustee) made between (1) the Borrower, as
borrower, (2) ABN AMRO Bank N.V., Singapore Branch, Bayerische Landesbank
Girozentrale, Singapore Branch, Citibank, N.A., Singapore Branch, United
Overseas Bank Limited (formerly known as Overseas Union Bank Limited) and
Sumitomo Mitsui Banking Corporation, Singapore Branch (formerly known as
The Sumitomo Bank, Limited), as arrangers, (3) Oversea-Chinese Banking
Corporation Limited, as senior lead manager, (4) The Bank of
Tokyo-Mitsubishi, Ltd., Singapore Branch, as lead manager, (5) UFJ Bank
Limited, Singapore Branch (formerly known as The Sanwa Bank Limited,
Singapore Branch), as manager, (6) the Guarantor Banks named therein, as
guarantor banks, (7) the Lending Banks named therein, as lending banks and
(8) the Agent, as agent, (a) the Guarantor Banks agreed to grant to the
Borrower a S$236,800,000 guarantee facility and (b) the Lending Banks
agreed to grant to the Borrower a US$143,200,000 term loan facility, upon
the terms and subject to the conditions of the Credit Agreement.
(B) CSM is the legal and beneficial owner of 51 per cent. of the issued shares
in the capital of the Borrower.
(C) CSM (after giving due consideration to the terms and conditions of the
Credit Agreement and satisfying itself that there are reasonable grounds
for believing that the entry into by it of this Agreement will benefit it)
has agreed to enter into this Agreement and give the undertakings provided
in this Agreement.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS: In this Agreement, except to the extent that the context
requires otherwise:
"BANKS" means the Guarantor Banks and the Lending Banks (and includes their
respective successors and assigns);
"CSM LOAN AGREEMENT" means the loan agreement dated 27 June 2002 made
between (1) the Borrower, as borrower, and (2) CSM, as lender;
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"DISCHARGE DATE" means the date on which the Senior Indebtedness has been
discharged in full and on which the Borrower and the Shareholders cease to
be under any liability to the Agent and the Banks under or in connection
with the Financing Documents;
"EXCLUDED TRANSACTION" means any genuine and good faith commercial
transaction entered into between the Borrower and CSM which is not
primarily financial in nature and is contemplated under the Joint Venture
Agreement, but shall exclude the transactions contemplated under the CSM
Loan Agreement;
"SECURITY TRUSTEE" includes its successors in title and assigns and any
company with which it may amalgamate and all other persons for the time
being the security trustee for itself and the Banks under this Agreement;
"SENIOR INDEBTEDNESS" means all sums (whether principal, interest, fee or
otherwise) which are or at any time may be or become due from or owing by
the Borrower to the Agent and/or the Banks (or any of them), whether
actually or contingently, under or in connection with, or which the
Borrower has covenanted to pay or discharge under or pursuant to, any of
the Financing Documents (which, for the avoidance of doubt, excludes the
Phase 2 Financing Documents (as defined in the Trust Deed));
"SHAREHOLDERS" means CSM, Agilent Technologies Europe B.V. and EDB
Investments Pte Ltd (and includes their respective successors and permitted
assignees and transferees);
"SUBORDINATED INDEBTEDNESS" means all sums which are or at any time may be
or become due from or owing by the Borrower to CSM solely under the CSM
Loan Agreement (as may be reduced from time to time pursuant to Clause 2.1
and excluding, for the avoidance of doubt, any Released Amount); and
"TRUST DEED" means the trust deed dated 28 September 2000 made between (1)
the Borrower and (2) the Security Trustee, being the Trust Deed referred to
in the Credit Agreement.
1.2 CONSTRUCTION: All terms and references used in this Agreement and which are
defined or construed in the Credit Agreement but are not defined or
construed in this Agreement shall have the same meaning and construction in
this Agreement. The provisions of Clause 1(C) of the Credit Agreement shall
apply to this Agreement as though they are set out in full in this
Agreement (mutatis mutandis) except that references to the Credit Agreement
are to be construed as references to this Agreement. All references in this
Agreement to a Financing Document include that Financing Document as
amended, modified or supplemented from time to time and any document which
amends, modifies or supplements that Financing Document.
1.3 MISCELLANEOUS: The headings in this Agreement are inserted for convenience
only and shall be ignored in construing this Agreement. Unless the context
otherwise requires, words denoting the singular number only shall include
the plural and vice versa. References to "CLAUSES" are to be construed as
references to the clauses of this Agreement.
2. SUBORDINATION
2.1 SUBORDINATION: CSM and the Borrower hereby agree with and undertake to the
Agent and each of the Banks that, notwithstanding anything to the contrary
contained in any
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agreement or other document constituting or evidencing the Subordinated
Indebtedness, before the Discharge Date the Subordinated Indebtedness and
the rights and claims of CSM in relation to the Subordinated Indebtedness
are subordinated to the Senior Indebtedness and the respective rights and
claims of the Banks in relation to the Senior Indebtedness and accordingly,
subject as provided in this Agreement, payments of any amount of the
Subordinated Indebtedness (whether in the event of the winding-up of the
Borrower or otherwise) are conditional upon all of the Senior Indebtedness
having first been fully satisfied and discharged and no payment of any
amount of the Subordinated Indebtedness which, but for this Agreement,
would otherwise fall due for payment will fall so due, and instead such
payment will fall due only if and when the Senior Indebtedness has been
fully satisfied and discharged and, if the Subordinated Indebtedness or any
part thereof is paid by or on behalf of the Borrower to CSM, that payment
shall be forthwith paid over by CSM to the Agent, Provided that
notwithstanding anything to the contrary in this Agreement and the
Financing Documents, the Borrower may, at any time and from time to time,
for so long as an Event of Default has not occurred and is not continuing
unwaived, at its option either (1) make payments to CSM in relation to the
Subordinated Indebtedness and/or (2) by notice to the Agent and CSM reduce
the Subordinated Indebtedness (in any manner which CSM and the Borrower may
at the relevant time agree) subject to the satisfaction by the Borrower of
the following conditions:
2.1.1 the amount standing to the credit of the Debt Service Reserve
Account at the time of such payment and/or reduction is not less
than US$129,000,000; and
2.1.2 the Borrower has provided a written confirmation to the Agent, duly
signed by an authorised signatory of the Borrower, confirming that
it will not be in breach of the covenants in Clauses 16(16)(a) and
16(16)(b) of the Credit Agreement on the immediately succeeding
Calculation Date (after taking into account such payment and/or
reduction) and setting out in reasonable detail the basis of
calculation for which such confirmation is made.
Any such amount repaid to CSM pursuant to Clause 2.1(1) above and the
amount of any reduction referred to in Clause 2.1(2) above shall cease to
form part of the Subordinated Indebtedness (the "RELEASED AMOUNT").
2.2 TURNOVER: Without prejudice to the provisions of Clause 2.1 above, if any
amount of Subordinated Indebtedness is discharged or purported to be
discharged by payment, repayment, prepayment, set-off or in any other
manner in contravention of Clause 2.1 above or Clause 3 (and, for the
avoidance of doubt, any payment of consideration, discount or benefit
given or credit terms granted under any of the Excluded Transactions shall
be deemed not to be a discharge or purported discharge of any part of the
Subordinated Indebtedness), CSM shall:
2.2.1 (if CSM actually receives the amount discharged or purported to be
discharged) immediately pay it to the Agent for application towards
the Senior Indebtedness; and
2.2.2 (if CSM does not, as a result of discharge by set-off or otherwise,
actually receive the amount discharged or purported to be
discharged) pay to the Agent an amount equal to that discharged or
purported to be discharged.
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2.3 APPLICATION: Any amount received by the Agent from CSM, or any person on
its behalf, under Clauses 2.1 or 2.2 above shall be applied in the
following manner and order:
2.3.1 first, in or towards payment of any costs, charges and expenses
incurred by the Agent then due and payable under this Agreement and
the other Financing Documents;
2.3.2 secondly, in or towards payment of the Senior Indebtedness (and in
the event that such sums are insufficient to satisfy in full the
Senior Indebtedness, such sums shall be paid to the Banks in
proportion to their respective shares of the Senior Indebtedness at
the time of payment); and
2.3.3 thirdly, in payment of any surplus to CSM or any other person
lawfully entitled thereto.
3. AGREEMENT BY BORROWER AND CSM
3.1 BY BORROWER: The Borrower agrees and undertakes that prior to the Discharge
Date, it shall not, without the prior consent in writing of the Agent and
the Banks:
3.1.1 make any loans or advances, whether directly or indirectly, to CSM
or provide any guarantee, indemnity or security for or in connection
with any indebtedness or liabilities of CSM or otherwise enter into
any transactions with CSM other than (a) any transaction on arm's
length commercial terms and for valuable consideration, (b) any
Excluded Transaction or (c) any transaction contemplated by the CSM
Loan Agreement;
3.1.2 secure all or any part of the Subordinated Indebtedness;
3.1.3 redeem, purchase or otherwise acquire any of the Subordinated
Indebtedness;
3.1.4 repay, prepay or reduce any, or pay any interest, fees or
commissions (but without prejudice to accrual thereof) on, or by
reference to, any of the Subordinated Indebtedness otherwise than in
accordance with the terms of this Agreement; or
3.1.5 take or omit to take any action whereby the subordination of the
Subordinated Indebtedness or any part thereof to the Senior
Indebtedness may be terminated, impaired or adversely affected.
3.2 BY CSM: Except as otherwise expressly provided in this Agreement, CSM shall
not, without the prior consent in writing of the Agent and the Banks, prior
to the Discharge Date:
3.2.1 ask, demand, xxx for, take or receive, directly or indirectly,
whether by exercise of set-off, counterclaim or in any other manner,
or recover or enforce payment of any Subordinated Indebtedness
(provided that, for the avoidance of doubt, nothing under this
Clause 3.2.1 shall prohibit any asking, demand, suit for, taking or
receipt, or recovery or enforcement of, any payment due by the
Borrower under any of the Excluded Transactions);
3.2.2 take any security from the Borrower or any other person in respect
of any Subordinated Indebtedness and any security taken
notwithstanding the
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undertaking in this Clause 3.2.2 shall be held by CSM for the Agent
(provided that nothing herein shall be effective to create a
charge);
3.2.3 make or enforce any claim or right against the Borrower or prove in
competition with the Agent or any Bank in respect of the performance
of any obligation under this Agreement;
3.2.4 assign, transfer, sell, charge or purport to assign, transfer, sell,
charge or otherwise dispose or purport to dispose of the whole or
any part of or any interest in any rights which it may from time to
time and for the time being have against the Borrower in respect of
the Subordinated Indebtedness; or
3.2.5 take or omit to take any action whereby the subordination of the
Subordinated Indebtedness or any part thereof to the Senior
Indebtedness may be terminated, impaired or adversely affected.
4. REPRESENTATIONS AND WARRANTIES
CSM represents and warrants to and for the benefit of the Agent and each of
the Banks that:
4.1 POWERS: it has the power to enter into, exercise its rights and perform and
comply with its obligations under this Agreement;
4.2 AUTHORISATIONS AND CONSENTS: all action, conditions and things required to
be taken, fulfilled and done (including the obtaining of any necessary
consents) in order (a) to enable it lawfully to enter into, exercise its
rights and perform and comply with its obligations under this Agreement,
(b) to ensure that those obligations are valid, legally binding and
enforceable, and (c) to make this Agreement admissible in evidence in the
courts of Singapore have been taken, fulfilled and done;
4.3 NON-VIOLATION OF LAWS: its entry into, exercise of its rights and/or
performance of or compliance with its obligations under this Agreement do
not and will not violate, or exceed any power or restriction granted or
imposed by, (a) any law to which it is subject or (b) its Memorandum and
Articles of Association;
4.4 OBLIGATIONS BINDING: its obligations under this Agreement are valid,
binding and enforceable;
4.5 NON-VIOLATION OF OTHER AGREEMENTS: its entry into, exercise of its rights
and/or performance of or compliance with its obligations under this
Agreement do not and will not violate, to an extent or in a manner which
has or will have a material adverse effect on it, any agreement to which it
is a party or which is binding on it or its assets;
4.6 LITIGATION: no litigation, arbitration or administrative proceeding is
current or pending (a) to restrain the entry into, exercise of its rights
under and/or performance or enforcement of or compliance with its
obligations under this Agreement or (b) which has or will have a material
adverse effect on it; and
4.7 REPETITION: each of the above representations and warranties will be
correct and complied with in all material respects at all times up to the
Discharge Date as if repeated then by reference to the then existing
circumstances.
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5. UNDERTAKINGS
CSM undertakes that, at all times prior to the Discharge Date, it will from
time to time on reasonable request by the Agent acting on the instructions
of the Majority Banks do or procure the doing of all such acts and will
execute or procure the execution of all such documents as may be reasonably
necessary for giving full effect to this Agreement or securing to the Agent
and the Banks the full benefits of all rights, powers and remedies
conferred upon the Agent and the Banks in this Agreement.
6. PAYMENTS
6.1 TAXES
6.1.1 All sums payable by CSM under this Agreement shall be paid (1) free
of any restriction or condition, (2) free and clear of and (except
to the extent required by law) without any deduction or withholding
for or on account of any tax and (3) without deduction or
withholding (except to the extent required by law) on account of any
other amount, whether by way of set-off or otherwise.
6.1.2 If CSM or any other person (whether or not a party to, or on behalf
of a party to, this Agreement) must at any time deduct or withhold
any tax or other amount from any sum paid or payable by, or received
or receivable from, CSM under this Agreement, CSM shall pay such
additional amount as is necessary to ensure that the Agent or, as
the case may be, the Bank to which that sum is due, receives on the
due date and retains (free from any liability other than tax on its
own overall net income) a net sum equal to what it would have
received and so retained had no such deduction or withholding been
required or made.
6.1.3 If CSM or any other person (whether or not a party to, or on behalf
of a party to, this Agreement) must at any time pay any tax or other
amount on, or calculated by reference to, any sum received or
receivable by the Agent or, as the case may be, any of the Banks
from CSM under this Agreement (except for a payment by the Agent or
a Bank of tax on its own overall net income), CSM shall pay or
procure the payment of that tax or other amount before any interest
or penalty becomes payable or, if that tax or other amount is
payable and paid by the Agent or any Bank, shall reimburse it on
demand for the amount paid by it.
6.1.4 Within 30 days after paying any sum from which it is required by law
to make any deduction or withholding, and within 30 days after the
due date of payment of any tax or other amount which it is required
by Clause 6.1.3 above to pay, CSM shall deliver to the Agent
evidence reasonably satisfactory to the Agent or, as the case may
be, the relevant Bank of that deduction, withholding or payment and
(where remittance is required) of the remittance thereof to the
relevant taxing or other authority.
6.1.5 As soon as CSM is aware that any such deduction, withholding or
payment is required (or any change in any such requirement), CSM
shall notify the Agent.
6.2 GOODS AND SERVICES TAX: CSM shall also pay to the Agent and each Bank on
demand, in addition to any amount payable by CSM under this Agreement, any
goods and services, value added or other similar tax payable in respect of
that amount (and any reference in
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this Agreement to that amount shall be deemed to include any such taxes
payable in addition to it).
6.3 REFUND OF TAX CREDITS: If:
6.3.1 CSM makes a payment under Clause 6.1.2 or 6.1.3 (a "TAX PAYMENT") in
respect of a payment to the Agent or any Bank under this Agreement;
and
6.3.2 the Agent or the relevant Bank determines in its absolute discretion
that it has obtained a refund of tax or obtained and used a credit
against tax on its overall net income (a "TAX CREDIT") which the
Agent or that Bank in its absolute discretion is able to identify as
attributable to that Tax Payment,
then, if in its absolute discretion it can do so without any adverse
consequences for the Agent or, as the case may be, that Bank, the Agent or,
as the case may be, that Bank shall reimburse CSM such amount as the Agent
or, as the case may be, that Bank in its absolute discretion determines to
be such proportion of that Tax Credit as will leave the Agent or, as the
case may be, that Bank (after that reimbursement) in no better or worse
position in respect of its worldwide tax liabilities than it would have
been in if no Tax Payment had been required. The Agent or any Bank shall
have an absolute discretion as to whether to claim any Tax Credit (and, if
it does claim, the extent, order and manner in which it does so) and
whether any amount is due from it under this Clause 6.3 (and, if so, what
amount and when). Neither the Agent nor any Bank shall be obliged to
disclose any information regarding its tax affairs and computations.
6.4 CURRENCY INDEMNITY
6.4.1 Any amount received or recovered by the Agent or any Bank in respect
of any sum expressed to be due to it from CSM under or in connection
with this Agreement in a currency (such currency being referred to
as the "RELEVANT CURRENCY") other than the currency in which such
sum is expressed to be due under this Agreement (such currency being
referred to as the "CURRENCY OF ACCOUNT") whether as a result of, or
of the enforcement of, a judgment or order of a court or tribunal of
any jurisdiction, in the winding-up of CSM or otherwise, shall only
constitute a discharge to CSM to the extent of the amount in the
Currency of Account which the recipient is able, in accordance with
its usual practice, to purchase with the amount of the Relevant
Currency so received or recovered on the date of that receipt or
recovery (or, if it is not practicable to make that purchase on that
date, on the first date on which it is practicable to do so).
6.4.2 If that amount in the Currency of Account is less than the amount of
the Currency of Account due to the recipient under or in connection
with this Agreement, CSM shall indemnify it against any loss
sustained by it as a result. In any event, CSM shall indemnify the
recipient against the cost of making any such purchase. For the
purpose of this Clause 6.4, it will be sufficient for the recipient
to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
6.4.3 Each of the indemnities in this Clause 6.4 constitutes a separate
and independent obligation from the other obligations in this
Agreement, shall give rise to a separate and independent cause of
action, shall apply irrespective of any
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indulgence granted by the Agent and/or any Bank and shall continue
in full force and effect despite any judgment, order, claim or proof
for a liquidated amount in respect of any sum due under this
Agreement or any other judgment or order.
7. NATURE OF RIGHTS AND OBLIGATIONS
7.1 NO RELEASE: The obligations of CSM under this Agreement (excluding, for the
avoidance of doubt, any obligation of CSM under this Agreement which has
been discharged) shall not be discharged, impaired or otherwise affected by
any act, omission, matter or thing which, but for this Clause 7.1, may
operate to release or otherwise exonerate CSM from its obligations under
this Agreement in whole or in part, including without limitation and
whether or not known to it or any other person:
7.1.1 any variation in or to the Project;
7.1.2 any time, indulgence, concession waiver or consent at any time given
by the Agent and/or any of the Banks in respect of the Senior
Indebtedness or any part thereof or to the Borrower, CSM or any
other person;
7.1.3 any amendment or supplement to any provision of any Financing
Document or any other agreement, security, guarantee or indemnity;
7.1.4 the making or the absence of any demand on the Borrower, CSM or any
other person for payment;
7.1.5 the enforcement or absence of enforcement of or release of any of
the Financing Documents or any other agreement, security, guarantee
or indemnity held in respect of the Senior Indebtedness;
7.1.6 the winding-up, insolvency or bankruptcy of the Borrower, CSM or any
other person;
7.1.7 the illegality, invalidity or unenforceability of or any defect in
any provision of any Financing Document or any other agreement,
security, guarantee or indemnity or any of the obligations of the
Borrower, CSM or any other person thereunder, whether on the grounds
of ultra xxxxx, not being in the interests of the Borrower or any
other person, not having been duly authorised, executed or delivered
by the Borrower or any other person or for any reason whatsoever; or
7.1.8 any other act, event or omission which but for this provision would
or might operate to impair or discharge the obligations of CSM under
this Agreement.
7.2 CONTINUING OBLIGATIONS: The obligations of CSM and the Borrower under this
Agreement are continuing obligations, will not be discharged by any
intermediate payment and will remain in full force and effect until the
obligations have been fulfilled (for the avoidance of doubt, nothing in
this Clause 7.2 shall affect any obligations of the Borrower or CSM which
has been discharged by the due and proper performance by the Borrower or
CSM of such obligations).
7.3 REINSTATEMENT
7.3.1 Any settlement or discharge between the Agent or any of the Banks
and CSM shall be conditional upon no security or payment to the
Agent or such Bank by the
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Borrower or any other person being avoided or reduced by virtue of
any provision or enactment relating to bankruptcy, insolvency or
winding-up for the time being in force or by virtue of any
obligation to give effect to any preference or priority and the
Agent or such Bank (as the case may be) shall be entitled to recover
the value or amount of any such security or payment from CSM
subsequently as if such settlement or discharge had not occurred.
7.3.2 Without prejudice to the provisions of Clause 7.3.1 above, where any
discharge (whether in respect of the obligations of CSM or any
security for those obligations or otherwise) is made in whole or in
part or any arrangement is made on the faith of any payment,
security or other disposition which is avoided or must be repaid on
bankruptcy, insolvency or winding-up or otherwise without
limitation, the liability of CSM under this Agreement shall, unless
the Agent and the Banks agree otherwise, continue as if the
discharge or arrangement, as the case may be, had not occurred.
7.4 FAILURE BY CSM: The failure of CSM or the Borrower to perform or comply
with any of its obligations under this Agreement shall not release CSM or
the Borrower of its obligations under this Agreement.
7.5 IMMEDIATE RECOURSE: CSM waives any right which it may have of first
requesting the Agent or any of the Banks to proceed against or enforce any
other rights or security or claim payment from the Borrower or any other
person before claiming from CSM under this Agreement.
7.6 ADDITIONAL SECURITY: This Agreement shall be in addition to and shall not
in any way be prejudiced by any other security now or hereafter held by the
Agent or any Bank as security for the obligations of the Borrower under the
Credit Agreement.
8. EXPENSES
8.1 BY CSM: CSM shall pay on demand all costs and expenses (including legal
expenses on a full indemnity basis) reasonably incurred by the Agent and/or
any of the Banks in protecting or enforcing any rights against it under
this Agreement.
8.2 BY BORROWER: The Borrower shall pay on demand all costs and expenses
(including legal expenses on a full indemnity basis) reasonably incurred by
the Agent and/or any of the Banks in protecting or enforcing any rights
against it under this Agreement.
9. BENEFIT OF AGREEMENT
9.1 CSM/BORROWER: The Borrower may not assign or transfer any of its rights,
benefits or obligations under this Agreement. CSM may not assign or
transfer any of its rights, benefits or obligations under this Agreement.
9.2 AGENT/BANKS
9.2.1 Each of the Agent and the Banks may assign all or part of its rights
under this Agreement without the consent of any party to any
assignee or transferee under the Credit Agreement (but the assignor
shall give to the Borrower prior notice of such assignment or
transfer). Any such assignee shall be entitled to the full
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benefit of this Agreement to the same extent as if it were an
original party in respect of the rights assigned to it.
9.2.2 Neither CSM nor the Borrower shall be liable for any costs or
expenses which may be incurred in connection with any assignment or
transfer of any of the rights of the Agent or any of the Banks under
this Agreement.
9.3 DISCLOSURE OF INFORMATION: The Agent or any of the Banks may disclose on a
confidential basis to any other party to the Financing Documents or any of
its other branches or its headquarters or to an actual or potential New
Lending Bank, assignee, sub-participant or the like such information about
the Borrower, CSM or any other person as it may think fit and may disclose
to such party such information about the Borrower or CSM with the prior
consent in writing of the Borrower or, as the case may be, CSM (Provided
that, at any time and from time to time after the making of a declaration
under Clause 17(B) of the Credit Agreement, (1) no such consent will be
required for any such disclosure and (2) the Agent or the relevant Bank
making any such disclosure shall, if practicable, consult with the Borrower
or, as the case may be, CSM prior to making any such disclosure and shall
consider in good faith any request from the Borrower or, as the case may
be, CSM to the Agent or such Bank not to make any such disclosure or to
delay making any such disclosure).
9.4 LIMITATION ON CERTAIN OBLIGATIONS: If, at the time of any assignment or
transfer by a Bank, circumstances exist which would oblige CSM to pay to
the assignee or transferee under Clause 6.1 any sum in excess of the sum
(if any) which it would have been obliged to pay to that Bank under that
Clause in the absence of that assignment or transfer, CSM shall not be
obliged to pay that excess.
10. WAIVERS
No failure on the part of the Agent or any of the Banks to exercise, and no
delay on its part in exercising, any right or remedy under this Agreement
will operate as a waiver thereof, nor will any single or partial exercise
of any right or remedy preclude any other or further exercise thereof or
the exercise of any other right or remedy. The rights and remedies provided
in this Agreement are cumulative and not exclusive of any other rights or
remedies (whether provided by law or otherwise).
11. COMMUNICATIONS
11.1 ADDRESSES: Each communication under this Agreement shall be made by fax,
telex or otherwise in writing. Each communication or document to be
delivered to any party under this Agreement shall be sent to that party at
the fax number, telex number or address, and marked for the attention of
the person (if any), from time to time designated by that party to the
Agent (or, in the case of the Agent, by it to each other party) for the
purpose of this Agreement. The initial fax number, telex number, address
and person (if any) so designated by each party are set out against its
name at the end of this Agreement.
11.2 DEEMED DELIVERY: Any communication under this Agreement shall be deemed to
have been received (if sent by fax or telex) on the day of despatch or (in
any other case) when left at the address required by Clause 11.1 above or
within five days after being sent by prepaid post (by airmail if to another
country) addressed to it at that address.
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12. PARTIAL INVALIDITY
The illegality, invalidity or unenforceability of any provision of this
Agreement under the law of any jurisdiction shall not affect its legality,
validity or enforceability under the law of any other jurisdiction nor the
legality, validity or enforceability of any other provision.
13. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with, the
laws of Singapore.
-11-
IN WITNESS WHEREOF this Agreement has been entered into on the date stated at
the beginning.
THE BORROWER
The Common Seal of )
CHARTERED SILICON PARTNERS PTE LTD )
was hereunto affixed )
in the presence of: )
/s/ Xxxxxx Xxxxxx Director
-------------------------------------
/s/ Xxxxxx Hon Secretary
-------------------------------------
00, Xxxxxxxxx Xxxxxxxxxx Xxxx X,
Xxxxxx 0,
Xxxxxxxxx 000000.
Fax Number: 0000000
Attention: Legal Department
-12-
CSM
The Common Seal of )
CHARTERED SEMICONDUCTOR )
MANUFACTURING LTD )
was hereunto affixed )
in the presence of: )
/s/ Xxxxx Xxxxxxx Director
-------------------------------------
/s/ Xxxxxx Hon Secretary
-------------------------------------
00, Xxxxxxxxx Xxxxxxxxxx Xxxx X,
Xxxxxx 0,
Xxxxxxxxx 000000.
Fax Number: 0000000
Attention: Legal Department
-13-
THE AGENT
Signed, Sealed and Delivered by ) /s/ Xxxxxx X Xxxx/ Xxxxxx Xxxx
as )
attorneys for and on behalf of )
ABN AMRO BANK N.V., )
SINGAPORE BRANCH )
in the presence of: ) /s/ Xxxxx Xxx Mei
00, Xxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 0000 0000 / 0000 0000
Telex Number: RS 24396
Attention: Xx Xxxxxx Xxxx / Xx Xxxxxxxx Xxxx / Xx Xxxxxx Xxxx
-14-
