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EXHIBIT 10.20
Dated the 14th day of April 1997
EDB LOAN AGREEMENT
BETWEEN
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
AND
ECONOMIC DEVELOPMENT BOARD
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THIS AGREEMENT is made the 14th day of April, One Thousand Nine Hundred
and Ninety Seven (1997) Between:
CHARTERED SEMICONDUCTOR MANUFACTURING LTD, a company incorporated in the
Republic of Singapore and having its registered office at 00 Xxxxxxxxx
Xxxxxxxxxx Xxxx X, Xxxxxx 0, Xxxxxxxxx 000000 (hereinafter called "the Company")
of the one part; And
ECONOMIC DEVELOPMENT BOARD, a Corporate Body established in the Republic of
Singapore by The Economic Development Board Act (Cap. 85) of 000, Xxxxx Xxxxxx
Xxxx, #00-00 Xxxxxxx Xxxx Xxxxx Xxxxxxxxx 000000 (hereinafter called "the
Board") of the other part.
WHEREAS:
(1) The Company has applied to the Board for a term loan up to a maximum
aggregate principal amount of Singapore Dollars Six Hundred Million
(S$600,000,000.00) under the Capital Assistance Scheme of the Board.
(2) The Board is willing to grant the term loan to the Company, upon the
terms and subject to the conditions hereinafter set forth.
NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:-
1. DEFINITIONS
1.1 In this Agreement, unless the context otherwise requires, the
following words or expressions shall have the following meanings respectively:
(a) "Business Day" means a day on which banks in Singapore
are open for business excluding Saturday and Sunday.
(b) "Day" means a calendar day.
(c) "Dollars" and the sign "$" respectively mean the lawful
currency of the Republic of Singapore.
(d) "Drawing" means any, each or all (as the context may
require) of the drawings made by the Company under the Term Loan and includes
the First Drawing as defined hereof.
(e) "Event of Default" and "Events of Default" mean any,
each or all (as the context may require) of the Events of Default described in
Clause 15 hereof.
(f) "First Drawing" means the first of the drawings made by
the Company under the Term Loan.
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(g) "Fixed Productive Assets" means the buildings,
facilities and equipment, for the wafer fabrication of semiconductor devices at
a facility to be established in Woodlands in Singapore (the "FAB 3 Project").
(h) "Guarantee" means a corporate guarantee to be issued by
Singapore Technologies Pte Ltd ("STPL") and duly executed under seal and signed
by STPL's authorised signatories, in favour of the Board and in the form and
containing terms acceptable to the Board.
(i) "Interest Rate" means the rates of interest determined
in accordance with Clause 7.2 hereof.
(j) "Interest Payment Dates" means the day falling on the
first Business Day of March or the first Business Day of September as the case
may be and the first Interest Payment Date shall be the Interest Payment Date
immediately following the date of the First Drawing of the Term Loan.
(k) "Interest Period" means the period or periods determined
as follows:
(i) the Interest Period in relation to the First
Drawing shall begin on the date on which that Drawing is made hereunder and
shall end on the first Interest Payment Date;
(ii) the Interest Period in respect of any subsequent
Drawing shall begin on the date on which the relevant subsequent Drawing is made
and shall end on the Interest Payment Date falling immediately thereafter;
(iii) each successive Interest Period shall begin on
the last Interest Payment Date and shall end on the Interest Payment Date
falling six (6) months immediately following;
(iv) if any Interest Period would otherwise end on a
day which is not a Business Day that Interest Period shall be extended to the
next succeeding day which is a Business Day;
(v) if any Interest Period is extended by the
application of (iv) above, the following Interest Period shall (without
prejudice to the application of (iv) above) end on the day on which it would
have ended if the preceding Interest Period had not been so extended; and
(vi) any amount to be repaid under clause 8 shall
have a final Interest Period expiring on the relevant Repayment Date.
(l) "Month" means a calendar month.
(m) "person" shall include a company, body of persons,
association or body corporate or unincorporated.
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(n) "Repayment Dates" means the first Day of March and the
first Day of September of each year.
(o) "Term Loan" means the loan facility in the aggregate
amount of Singapore Dollars Six Hundred Million (S$600,000,000.00) to be made
available to the Company by the Board in accordance with the terms and
conditions set out in this Agreement and shall also be deemed to include the
whole or any part thereof.
(p) "Year" means a calendar year.
1.2 Unless the context otherwise requires, words importing the
singular number include the plural number and vice versa.
1.3 The words "hereof", "herein", "hereon" and "hereunder" and words
of similar import, when used in this Agreement, refer to this Agreement as a
whole and not to any particular provision of this Agreement.
1.4 The headings to the Clauses hereof shall not be deemed to be a
part thereof or be taken in consideration in the interpretation or construction
thereof or of this Agreement.
1.5 Reference herein to Clauses are references to Clauses of this
Agreement.
2. TERM LOAN
Subject to the provisions of this Agreement and in particular those of
Clause 3 hereof, the Board will make available to the Company the Term Loan at
the times and in the manner as hereinafter provided. The Term Loan shall be for
a period of eight (8) years, inclusive of a two (2) year grace period for
repayment of the Term Loan as provided in Clause 8 herein.
3. CONDITIONS PRECEDENT AND AVAILABILITY
The right of the Company to make any Drawing or Drawings under the Term
Loan, and the obligations of the Board to make available the same shall be
subject to the following conditions precedent, that is to say:
(a) There shall not exist at or prior to any Drawing, any Event of
Default or any condition, event or act which, with the giving of notice or lapse
of time, or both, would constitute such an Event of Default.
(b) All representations, warranties and statements contained herein,
or otherwise made in writing in connection herewith or in any certificate or
statement furnished pursuant to any provision of this Agreement or in any
document referred to herein made by the Company shall be true and correct with
the same effect as though made on the date on which the Drawing is to be made.
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(c) The Board shall have received, in form and substance
satisfactory to the Board, the following:-
(i) A copy of the Memorandum and Articles of Association of
the Company duly certified by a Director and the Secretary of the Company to be
a true copy thereof;
(ii) A copy, certified by a Director and Secretary of the
Company, of the resolution of the Board of Directors of the Company, which is in
full force and effect, approving the terms and conditions contained in this
Agreement and authorising a person or persons to sign this Agreement and any
other document to be given to the Board from time to time by the Company;
(iii) Specimen signatures of the persons authorised to sign
this Agreement on behalf of the Company, and to sign the notices of Drawing and
any other document to be given from time to time by the Company, such specimens
to be certified by a Director or the Secretary of the Company to be the true
signatures of such persons respectively; and
(iv) The Guarantee relating to the Term Loan to be made and
duly executed.
(d) All acts, conditions and things required to be done and
performed and to have happened precedent to the execution and delivery of this
Agreement and the Guarantee and to constitute this Agreement and the Guarantee
legal, valid and binding obligations enforceable in accordance with their
respective terms, shall have been done and performed and have happened in
compliance with all applicable laws.
(e) There is no breach by the Company of any of the terms,
conditions and undertakings herein contained.
4. PURPOSE OF THE TERM LOAN
4.1 Subject to the terms and conditions herein contained and in
particular to those of Clause 3, the Term Loan will be made available by the
Board to the Company for financing the purchase of Fixed Productive Assets of
the Company's plant only for the Fab 3 Project. Under this Agreement, the
Company shall be required to invest a minimum amount of Singapore Dollars One
Billion Eight Hundred Million (S$1,800,000,000.00) in Fixed Productive Assets
(excluding land) by 31 December 2000.
4.2 Upon advance of a Drawing under Clause 5, the Company shall
apply all the proceeds thereof for the purposes described in Clause 4.1 above
and for no other purpose whatsoever.
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5. DRAWINGS OF TERM LOAN
5.1 Subject to the terms and conditions of this Agreement and in
particular to all the conditions of Clause 3 being complied with the Board will
make available drawings under the Term Loan in accordance with a disbursement
schedule submitted by the Company and approved by the Board at least 45 days
before the First Drawing of the Term Loan.
5.2 The Company shall give notice of Drawing to the Board not later
than thirty (30) Business Days prior to the intended date of Drawing and each
notice of Drawing shall be substantially in the form set out in the Appendix I
hereto and shall:-
(i) state the date (which must be a Business Day)
and the amount of the proposed Drawing;
(ii) be irrevocable;
(iii) commit the Company to borrow the amount and on
the date stated; and
(iv) constitute a representation and warranty that at
the date thereof the warranties and representations set out in Clause 12 are
true and no Event of Default and no event or act which with, the giving of
notice or lapse of time or both would constitute such an Event of Default has
occurred.
5.3 The First Drawing shall be made not later than 1 May 1997 or
such other later date as maybe approved by the Chairman of the Board or his
lawful representative.
5.4 All Drawings shall be made on the first Day of March or the
first Day of September of the respective years or such other date(s) as may be
approved by the Chairman of the Board or his lawful representative.
5.5 The Company shall have the option to request the Board to
advance the amount of a Drawing in the following manner:
(i) either after the Board has verified that the
aggregate amount payable by the Company for Fixed Productive Assets as at the
intended date of Drawing is equivalent to the amount of that Drawing; or
(ii) before such verification has been made by the
Board, provided that:
(a) the Company shall give notice of Drawing to the Board
not later than fourteen (14) Business Days prior to the
intended date of Drawing;
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(b) the Company shall together with the notice of Drawing
provide the Board with the aggregate amount payable by
the Company for Fixed Productive Assets as at the
intended date of Drawing;
(c) the Board shall have the right to verify such amount
within sixty (60) Days after advance of such Drawing;
and
(d) any amount advanced under a Drawing that is in excess of
the aggregate amount payable by the Company for Fixed
Productive Assets as at the intended date of the
relevant Drawing (the "Excess Amount") shall be subject
to interest to be applied on the Excess Amount at a rate
of three per cent (3%) per annum above the average
prevailing prime rate as reported by the Monetary
Authority of Singapore from the date of the relevant
Drawing to the date of payment by the Company of the
Excess Amount.
6. AVAILABILITY OF TERM LOAN
The Term Loan shall be available for Drawing for a period of two (2)
Years from the date of the First Drawing after which date any part of the Term
Loan not drawn shall be cancelled.
7. INTEREST
7.1 The Company shall pay to the Board on each Interest Payment Date
interest in arrears on the amounts drawn and outstanding under the Term Loan
from time to time in respect of each Interest Period relating thereto determined
in accordance with clause 1.1(k) and at the Interest Rate determined in
accordance with sub-clause 7.2 hereof.
7.2 Interest will be charged by the Board at the rate of four per
cent (4%) per annum (the "Interest Rate") and shall be payable in arrears at
six-monthly intervals, the first payment to be made on the Interest Payment Date
as defined in Clause 1.1(j) hereof.
7.3 The amount of interest payable on the drawings under the Term
Loan from time to time owing and outstanding shall be calculated at the Interest
Rate on the basis of a year of three hundred and sixty five (365) Days for the
actual number of Days elapsed.
7.4 The certificate of the Board in writing as to the determination
of the amount of interest payable on each Interest Payment Date shall be
conclusive and binding upon the parties hereto, save for manifest error.
7.5 The Company recognises and accepts that it is commercial
practice for interest on amounts in default to be charged and that the rate of
interest to be applied by the Board on the amounts in default shall be three per
cent (3%) per annum above the average prevailing prime interest rate as reported
by the Monetary Authority of Singapore compounded on a monthly basis, which will
represent a genuine estimate of the damage the Board would suffer in the event
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of a failure by the Company in the payment on the due date of any principal
and/or interest on the amounts due and payable to the Board.
8. REPAYMENT OF THE TERM LOAN
The Company shall repay the principal of the amounts drawn under the
Term Loan in thirteen (13) equal consecutive six-monthly instalments on the
Repayment Dates. The first of such instalments shall be paid on the first
Repayment Date following two (2) Years from the date of the First Drawing of the
Term Loan or such other later date as the Board may determine in its absolute
discretion.
9. PAYMENT PROVISIONS
9.1 All payments to be made by the Company under this Agreement
shall be made not later than 11 a.m. (Singapore time) on the relevant day to the
Board at its address described above or at such other address as the Board may
from time to time designate by notice in writing to the Company not less than
ten (10) Business Days prior to the date of any such payment hereunder.
9.2 If any sum becomes due for payment under this Agreement on a day
which is not a Business Day, such payment shall be made on the next succeeding
Business Day and all calculation of interest shall be adjusted accordingly.
10. PREPAYMENT
10.1 The Company may prepay in the inverse order of maturity any part
of the Term Loan or the entire Term Loan before maturity on paying a fee
amounting to a quarter of one percent (1/4 of 1%) of the amount prepaid for
every period of six (6) months or any lesser period before maturity or one
percent (1%) of the amount prepaid, whichever is the lesser amount.
10.2 The Company shall give the Board thirty (30) Days' prior written
notice of the intention to prepay any amount described in Clause 10.1.
10.3 In the event the Company is required to prepay the principal sum
owing under the Term Loan pursuant to Clause 15.2(a) hereof the Company shall
pay to the Board the fee at the rate described in Clause 10.1 above on the
principal sum owing.
11. SECURITY
Prior to each Drawing of the Term Loan, the Company shall procure the
requisite Guarantee to be given in favour of the Board.
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12. WARRANTIES AND REPRESENTATIONS
12.1 The Company hereby warrants and represents to the Board as
follows:
(a) that it is lawfully incorporated, validly existing and
in good standing under the laws of the Republic of Singapore;
(b) that it has the corporate power and authority to carry
on the business as now being conducted;
(c) that it has the corporate power to execute and perform
this Agreement and to borrow hereunder;
(d) that the execution, delivery and performance of this
Agreement and the borrowings hereunder have been duly authorised by all
requisite corporate action and will not violate any provision of any agreement
or other instrument to which the Company is a party;
(e) that its latest balance sheet and financial statements
submitted to the Board are correct and complete and accurately represent the
financial condition of the Company on the date thereof and the results of its
operation for the period then ended and each such balance sheet shows all known
present and future liabilities, direct or contingent, of the Company as of the
date thereof and each financial statement referred to herein was prepared in
accordance with generally accepted accounting principles;
(f) save as disclosed in writing to the Board that there has
been no material adverse change in the business activities, operations or
financial condition of the Company since the date of the latest financial
statements referred to in sub-paragraph (e) above;
(g) save as otherwise disclosed to the Board, there are no
actions, suits or proceedings pending or, to the knowledge of the Company,
threatened against the Company or its parent or any of its subsidiaries, at law
or in equity (whether or not purportedly on behalf of the Company, its parent or
any of its subsidiaries) before any court or competent body adjudicating such
matters, which involve the possibility of any judgement or liability which may
result in any material adverse change in the business, operations, properties or
assets, or in the condition, financial or otherwise of the Company or its parent
or any of its subsidiaries and adversely affect the Company's ability to make
repayment of the Term Loan;
(h) that to the best of the knowledge of the Company no
steps have been taken or are being taken to appoint a receiver and/or manager or
judicial manager or liquidator or any other person over it or any of its assets
or in any winding up action.
12.2 Each of the warranties and representations contained in the
preceding subclause shall survive and continue to have full force and effect
after the execution of this Agreement and that they will be true and correct and
fully observed as though made on the date of Drawing or each Interest Payment
Date with reference to the facts and circumstances then subsisting.
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13. AFFIRMATIVE UNDERTAKINGS
The Company hereby undertakes and agrees with the Board as follows:-
(a) that the Term Loan granted by the Board under the
provisions of this Agreement and every part thereof shall be used solely for the
purpose and in the manner hereinbefore stipulated and not for any other purpose
or manner save with the prior written consent of the Board.
(b) that it will carry on and conduct its business and
affairs with due diligence and efficiency in accordance with sound technical
financial industrial and managerial standards and practices including the
maintenance of adequate records with qualified personnel and in accordance with
its Memorandum and Articles of Association.
(c) that it will furnish and provide the Board with and
permit the Board to obtain all such statements information explanation and data,
except information of a confidential nature, as the Board may reasonably
require, by prior written notice, regarding the affairs operations
administration financial or other whatsoever state or condition of the Company
or any of the matters in this Clause mentioned.
(d) that it will furnish to the Board particulars of any
kind of immovable property hereafter acquired by the Company.
(e) that the Board shall have the right as it may reasonably
request, by prior written notice, to inspect any land or premises where the
Company carries on its business and inspect the same and all property and assets
whatsoever therein or thereon and all accounts records and statements wherever
the same may be situate and to make inventories and record thereof.
(f) that it will supply to the Board certified copies of all
resolutions passed which materially affect the financial state and condition of
the Company at general and/or special meetings of the Company within seven (7)
Days from the date of the passing of such resolutions.
(g) that it will deliver to the Board every year immediately
after the issue of the a copy of the Company's audited balance sheet and profit
and loss accounts audited by a firm of auditors of international repute together
with Auditors' and Directors' Reports and will also deliver to the Board a copy
of the annual return which the Company is required by law to file with the
Registrar of Companies.
(h) that it shall punctually pay all rents rates assessments
taxes and all outgoings payable in respect of any land/or premises belonging to
the Company or at which it carries on business and obtain all necessary licences
and comply with all laws regulations rules and orders relating to the carrying
on of its business on such premises.
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(i) that it will keep all its plant machinery equipment
buildings constructions fixtures fittings implements and other effects in good
and substantial repair and proper working condition to the satisfaction of the
Board.
(j) that it shall not dismantle pull down or remove any part
of the buildings fixtures plant machinery and equipment, except in cases where
such dismantling pulling down or removal shall in the opinion of the Company be
rendered necessary by reason of the same being obsolete worn out or damaged, in
which case the Company shall give sufficient written notice to the Board and
will replace such property by property of similar nature and value after giving
intimation to the Board.
(k) that it shall give to the Board such written
authorities or other directions and provide such facilities and access as the
Board may require for the aforesaid inspection and shall pay all costs fees
travelling and other out-of-pocket expenses whether legal or otherwise in
respect of such inspection.
(l) that it shall continue with its best efforts to bring
strategic equity shareholders into the Company with the prior approval of the
Board.
(m) that insofar as may be necessary the Company shall
amend its Memorandum and Articles of Association so as to enable it to observe
and perform all the covenants undertakings terms stipulations conditions and
other provisions of this Agreement.
14. NEGATIVE UNDERTAKINGS
The Company hereby undertakes and agrees with the Board that it shall
not without the written consent of the Board, which consent shall not be
unreasonably withheld:-
(a) embark on any new project or substantial expansion or
diversification of its present business and operations, which are not related to
its present business activities;
(b) invest its funds by way of deposits (other than deposits
with banks licensed by the Monetary Authority of Singapore), loans, share
capital or otherwise in any other concern or issue or give guarantees for the
account or on behalf of any person or otherwise become contingently liable for
or in connection with any obligations or indebtedness of any person;
(c) effect any form of reconstruction including amalgamation
with another company which will result in STPL holding less than 51% of the
share capital of the Company;
(d) create or permit to arise or subsist, any mortgage,
charge (whether fixed or floating), pledge, lien or other encumbrances
whatsoever (except those which have been specifically disclosed to and approved
by the Board respectively) on any of its properties or assets, both present and
future whatsoever and wheresoever situate;
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(e) declare or pay any dividend or make any income or
capital distribution, whether in cash or in specie, to its shareholders or any
of them; or
(f) raise, borrow, take, make, issue or give, as the case
may be, any loans, debentures, bonds or credits from or to any persons.
15. EVENTS OF DEFAULT
15.1 If any one or more of the following Events of Default shall
occur, that is to say:
(a) if the Company shall fail to pay or otherwise discharge
when due any sums of money, whether principal, interest, fees or otherwise,
payable under this Agreement;
(b) if the Company shall default in the payment of any
principal or interest or any other obligation for borrowed money (whether or not
to the Board) beyond any period of grace provided in respect thereof;
(c) if any representation or warranty made in or in
pursuance of this Agreement or in any certificate, statement or other document
delivered in connection with the execution and delivery hereof or in pursuance
of this Agreement shall be or become incorrect in any material respect;
(d) if the Company defaults in the due performance of any
undertaking, condition or obligation on its part to be performed and observed
hereunder (other than the payment of any sum due hereunder) and such default (if
capable of being rectified) shall not be rectified for a period of thirty (30)
Days after the date of receipt by the Company of written notice of such default
from the Board;
(e) if a petition is presented in any court of competent
jurisdiction or a resolution is passed for the winding-up of the Company or its
parent or for the filing or any application for placing the Company or its
parent under judicial management or any similar or analogous proceedings are
taken against any of them and are not withdrawn within thirty (30) Days after
being presented;
(f) if any encumbrancer or lessor shall take possession or a
receiver and/or manager, judicial manager, liquidator or other similar officer
is appointed of the whole of the undertaking, property or assets, or any part
thereof, of the Company or its parent;
(g) if a distress or execution is levied or enforced upon or
sued out against any part of the property or assets of the Company and is not
discharged within thirty (30) Days of being levied and the Board is of the
reasonable opinion that such an event will be materially prejudicial to the
interests of the Board;
(h) if a judgement or order is made against the Company and
is not discharged within sixty (60) Days or if legal proceedings suits or
actions of any kind whatsoever (whether criminal or civil) shall be instituted
against the parent of the Company and the Board is in that
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case of the reasonable opinion that the said legal proceedings suits or actions
will materially affect the Company's ability to perform and observe its
obligations under this Agreement;
(i) if the Company becomes insolvent or is unable or deemed
unable to pay its debts or admits in writing its inability to pay its debts, as
they mature, or enters into composition, compromise or arrangement with its
creditors or makes a general assignment for the benefit of its creditors and the
Board is of the opinion that any such event will be materially prejudicial to
the interests of the Board;
(j) if a winding-up petition is presented by or against the
guarantor of the Guarantee or analogous proceedings shall be taken by or against
it and is not discharged within thirty (30) Days after being presented;
(k) if the Company ceases or threatens to cease to carry on
its business and the Board is of the opinion that it will materially affect the
ability of the Company to perform and observe its obligations under this
Agreement;
(l) if any licence, consent or approval of any authority at
any time necessary to enable the Company to comply with and perform its
obligations under this Agreement to a material extent shall be revoked, withheld
or materially modified or shall otherwise not be granted or fail to remain in
full force and effect;
(m) if any of the consents, authorities, approvals, waivers
or resolutions referred to in Clause 3 shall be modified in a manner
unacceptable to the Board or shall be wholly or partly revoked, withdrawn,
suspended or terminated or shall expire and not be renewed or shall otherwise
fail to remain in full force and its effect and such circumstances are
considered by the Board to be material;
(n) if without the prior written consent of the Board there
is any change in the shareholding of the Company which will result in STPL
holding less than 51% of the share capital of the Company or if there is any
change in the shareholding of its parent;
(o) if a situation shall have arisen, which shall make it
improbable that the Company will be able to perform its obligations under this
Agreement;
(p) if the Board determines in its absolute discretion that
its interests under the Guarantee is or are in jeopardy or that a situation
shall have arisen which shall make it improbable that STPL will be able to
perform its obligations under the Guarantee;
then and in any of such event, the Board may, by notice in writing to the
Company declare that an Event of Default has occurred and such declaration shall
be deemed to take effect from the date of such an Event of Default.
15.2 Upon the declaration by the Board that an Event of Default has
occurred:
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(a) the whole of the principal sum drawndown and owing under
the Term Loan, interest thereon and all other sums agreed to be paid under this
Agreement shall immediately become due and payable without any demand or notice
of any kind by the Board to the Company; and
(b) it shall be lawful for the Board to exercise all or any
rights, powers or remedies under this Agreement, the Guarantee given to the
Board or any one or more of them.
15.3 In the event of an occurrence of an Event of Default before the
Term Loan shall have been fully drawn or utilised hereunder, the Board's
obligations hereunder shall automatically and forthwith cease.
15.4 After the declaration by the Board that an Event of Default has
occurred, all moneys received or recovered by the Board (whether such moneys
shall have been received or recovered as a result of or arising from its
exercise of all or any rights, powers or remedies under this Agreement, the
Guarantee or any one or more of them or by way of a set-off or otherwise) shall
be held by it and shall be applied as follows:-
(a) Firstly, in or towards payment of all costs charges and
expenses, if any, incurred in enforcing this Agreement, the Guarantee or any one
or more of them;
(b) Secondly, in or towards payment to the Board of all
moneys and liabilities for the time being due, owing or outstanding under this
Agreement and where such moneys and liabilities are of a contingent nature, in
or towards making full and adequate provisions for payment of such moneys and
liabilities as and when they become due and payable; and
(c) Thirdly, any surplus shall be paid to the Company.
16. NOTICES
16.1 Except as otherwise expressly provided herein, any notice,
request, demand or other communication to be given or served hereunder by one of
the parties hereto to or on the other or others may be delivered at or sent by
prepaid registered post or by facsimile to the address or addresses herein
specified of the other party or parties and shall be deemed to be duly served:
(a) if it is delivered, at the time of delivery,
(b) if it is sent by prepaid registered post, one (1) Day
after posting thereof, or
(c) if it is sent by facsimile, immediately after
transmission thereof, if the date of transmission is a Business Day, and if such
a date is not a Business Day, then the notice by facsimile shall be deemed to be
served on the next succeeding day which is a Business Day.
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Except as otherwise expressly provided herein, all notices, requests, demands or
other communications which are required by this Agreement to be in writing may
be made by facsimile.
16.2 For the purpose of this Clause 16 each of the parties hereto
shall from time to time notify the other party in writing of an address in
Singapore where such notice, request, demand or other communication as aforesaid
can be given or served and such notification shall be effective only when it is
actually received. In the absence of such notification, the notice, request,
demand or other communication aforesaid may be given or served at the addresses
of the respective parties as stated above.
17. WAIVER NOT TO PREJUDICE RIGHT OF BOARD
The Board may from time to time and at any time waive either
unconditionally or on such terms and conditions as it may deem fit any breach by
the Company of any of the undertakings stipulations terms and conditions herein
contained and any modification thereof but without prejudice to its powers,
rights and remedies for enforcement thereof, provided always that:-
(a) no neglect or forbearance of the Board to require and
enforce payment of any moneys hereunder or the performance and observance of any
undertaking stipulation term or condition herein contained, nor any time which
may be given to the Company shall in any way prejudice or affect any of the
rights, powers or remedies of the Board at any time afterwards to act strictly
in accordance with the provisions hereof;
(b) no such waiver of any such breach as aforesaid shall
prejudice the rights of the Board in respect of any other or subsequent breach
of any of the undertakings stipulations terms or conditions aforesaid.
18. INDULGENCE OF THE BOARD
The liability of the Company hereunder shall not be impaired or
discharged by reason of any time or other indulgence being granted by or with
the consent of the Board to any person who or which may be in any way liable to
pay any of the moneys secured hereby by any other security in favour of the
Board or by reason of any arrangement being entered into or composition accepted
by the Board which has the effect of modifying the operation of law or otherwise
its rights and remedies under the provisions of this Agreement.
19. SEVERABILITY
In case any provision in this Agreement shall be, or at any time shall
become invalid, illegal or unenforceable in any respect under any law, such
invalidity, illegality or unenforceability shall not in any way affect or impair
the other provisions of this Agreement but this Agreement shall be construed as
if such invalid or illegal or unenforceable provision contained herein or
therein did not form a part of this Agreement.
14
16
20. GOVERNING LAW
This Agreement shall be governed by and construed in all respects in
accordance with the laws of the Republic of Singapore.
21. MISCELLANEOUS
21.1 All legal and other professional fees, out-of-pocket expenses,
charges and expenses of and in connection with this Agreement shall be paid by
the Company.
21.2 The Company shall further pay all legal fees as between
solicitor and client and other costs and disbursements incurred in connection
with or demanding and enforcing payment of moneys due under this Agreement and
Guarantee and otherwise howsoever in enforcing the performance of any other
undertakings stipulations terms conditions or provisions hereof and thereof.
21.3 A certificate signed by a duly authorised officer for the time
being of the Board as to the amount of moneys and liabilities for the time being
due to the Board or incurred by the Board under this Agreement and Guarantee
shall be conclusive and binding on the Company, save for any computation or
clerical error.
21.4 This Agreement shall be binding upon the successors of the
Company and shall enure to the benefit of the Board and its successors and
assigns.
15
17
IN WITNESS WHEREOF the parties hereto have hereunto affixed their
respective common seals.
The Common Seal of CHARTERED SEMICONDUCTOR MANUFACTURING LTD was hereunto
affixed in the presence of:
/s/ XX XXXXX
-------------------- [SEAL]
Chairman
/s/ TAN XXXX XXXX
--------------------
Director
The Common Seal of the ECONOMIC DEVELOPMENT BOARD was hereunto affixed in the
presence of:-
[SIGNATURE ILLEGIBLE]
--------------------- [SEAL]
Chairman
[SIGNATURE ILLEGIBLE]
---------------------
Director
16
18
APPENDIX I
ECONOMIC DEVELOPMENT BOARD
000 Xxxxx Xxxxxx Xxxx
#00-00 Xxxxxxx Xxxx Xxxxx
Xxxxxxxxx 000000
Dear Sirs,
NOTICE OF DRAWING
TERM LOAN OF S$[ ]
Pursuant to Clause 5 of the EDB Loan Agreement dated ________ 1997 in respect of
the above Term Loan we hereby give you notice for a Drawing of Dollars [_______]
($______) on ________ 19__.
We confirm--
(i) that the conditions precedent under Clause 3 of the EDB Loan
Agreement have been complied with in every respect;
(ii) that each of the representations and warranties contained in
Clause 12 of the EDB Loan Agreement are true and accurate in all respects as
though made on the date of this Notice with reference to facts and circumstances
presently subsisting and will be true and accurate in all respects on the date
of the intended Drawing as though made on the date of the intended Drawing with
reference to facts and circumstances then subsisting; and
(iii) that as at the date hereof no Event of Default has occurred and
no event has occurred which, with the giving of notice and/or the lapse of time
and/or upon you making any necessary determination under Clause 15 of the EDB
Loan Agreement, might constitute an Event of Default, and we undertake that no
Event of Default and none of the events aforesaid will exist at the date of the
intended Drawing.
In addition to the above documents kindly let us know if you require copies of
any opinion approval or other documents.
Dated this day of 19
Yours faithfully
Director/Authorised Signatory
19
Dated the 29th day of May 1997
EDB LOAN SUPPLEMENTAL AGREEMENT
BETWEEN
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
AND
ECONOMIC DEVELOPMENT BOARD
20
THIS AGREEMENT is made the 29th day of May, One Thousand Nine Hundred
and Ninety Seven (1997) Between
CHARTERED SEMICONDUCTOR MANUFACTURING LTD, a company incorporated in the
Republic of Singapore and having its registered office at 00 Xxxxxxxxx
Xxxxxxxxxx Xxxx X, Xxxxxx 0, Xxxxxxxxx 000000 (hereinafter called "the Company")
of the one part; And
ECONOMIC DEVELOPMENT BOARD, a Corporate Body established in the Republic of
Singapore by The Economic Development Board Act (Cap. 85) of 000, Xxxxx Xxxxxx
Xxxx, #00-00 Xxxxxxx Xxxx Xxxxx Xxxxxxxxx 000000 (hereinafter called "the
Board") of the other part.
WHEREAS:
(1) The parties have on the fourteenth day of April, One Thousand Nine
Hundred and Ninety Seven (1997) entered into an agreement where in the Board has
agreed, subject to terms and conditions agreed on to grant term loans to the
Company under the Capital Assistance Scheme of the Board (the "Agreement").
(2) The parties have agreed to amend parts of the Agreement.
NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:
1. The parties agree that clause 5.5 of the Agreement be deleted and replaced
with the following:
5.5
(a) The Company shall have the option to request the Board to advance the
amount of a Drawing provided that written notice is given by the Company to the
Board indicating the amount to be advanced, not later than fourteen (14)
Business Days prior to the intended date of Drawing;
(b) In respect of any monies advanced under this clause, the Company shall,
without demand, produce to the Board, within sixty-five (65) Days of the date of
the Drawing, all documentary proof showing that the Company has fully utilise
the said Drawing for the payment of approved Fixed Productive Assets, and that
such payment was made within 60 Days after advance of the said Drawing.
(c) Any amount advanced under a Drawing that is in excess of the aggregate
amount actually paid by the Company in respect of approved Fixed Productive
Assets at the expiry of 60 days after Drawing (the "Excess Amount") shall be
subject to interest. Interest to be applied on the Excess Amount shall be at the
rate of three per cent (3%) per annum above the average prevailing prime lending
rate as reported by the Monetary Authority of Singapore from the date of the
relevant Drawing to the date that the Excess Amount is eventually paid by the
Company for approved Fixed Productive Assets.
21
IN WITNESS WHEREOF the parties hereto have hereunto affixed their
respective common seals.
The Common Seal of CHARTERED SEMICONDUCTOR MANUFACTURING LTD was hereunto
affixed in the presence of:-
/s/ Xx Xxxxx
-------------------------
Chairman
/s/ Tan Xxxx Xxxx [SEAL]
-------------------------
Director
The Common Seal of the ECONOMIC DEVELOPMENT BOARD was hereunto affixed in the
presence of:-
[Signature Illegible]
-------------------------
Chairman
[Signature Illegible] [SEAL]
-------------------------
Secretary
2
