Contract
EXHIBIT
10.79
THIS LOAN AGREEMENT
(the “Agreement”) is made as of February 23,
2009 by and between:
Micron Technology,
Inc., a company incorporated in Delaware and having its office at 0000 X.
Xxxxxxx Xxx, Xxxxx, Xxxxx, 00000 (the “Company”);
and
Economic Development
Board, a statutory body established in the Republic of Singapore under
the Economic Development Board Act (Cap. 85) having its office at 000, Xxxxx
Xxxxxx Xxxx, #00-00 Xxxxxxx Xxxx Xxxxx Xxxxxxxxx 000000 (the “Board”).
WHEREAS:
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(1)
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The Company has a majority-owned subsidiary in
Singapore, TECH
Semiconductor Singapore Pte. Ltd. (Company Registration Number:
199102059C) (the “Subsidiary”);
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(2)
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The
Company has applied to the Board for a term
loan:
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(a)
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with
a principal amount of Three Hundred Million Singapore Dollars
S$300,000,000; or
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(b)
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an
amount equivalent to Thirty percent (30%) of the value of the “Fixed
Productive Assets” (as defined in Clause 1.1(o)) by the Subsidiary
in Singapore; or
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(c)
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an
amount equivalent to One Hundred percent (100%) of the “Equity
Contributions” (as defined in Clause 1.1(i)),
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whichever
is the lowest (the “Term
Loan”) that is subject to the terms of this
Agreement.
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(3)
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The
Company will use the Term Loan for making Equity Contributions to enable the Subsidiary to
purchase Fixed
Productive Assets subject to the terms of this
Agreement.
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(4)
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The
Board is willing to grant the Term Loan to the Company, upon the terms and
subject to the conditions hereinafter set
forth.
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NOW
THIS AGREEMENT WITNESSETH AS FOLLOWS:
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1.
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DEFINITIONS
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1.1
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In
this Agreement, unless
the context otherwise requires, the following words or expressions shall
have the following meanings
respectively:
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(a)
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“Authorised
Officer” is defined in Clause
3(c)(i).
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(b)
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“Board”
means the Economic Development
Board.
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(c)
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“Business
Day” means a day on which banks in Singapore are open for business
excluding Saturday and Sunday or Public
Holiday.
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(b)
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“CAS” is
defined in the paragraph 2 of the recital to this
Agreement.
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(c)
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“Company”
means Micron Technology, Inc.
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(d)
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“Day”
means a calendar day.
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(e)
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“Dollars”
and the sign “S$”
respectively mean the lawful currency of the Republic of
Singapore.
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(f)
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“Default
Interest” is
defined in Clause
7.4.
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(g)
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“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 hereinafter.
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(h)
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“Enforcement
Proceeds” is defined in Clause
4.4(c).
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(i)
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“Equity
Contributions” means any and all purchases
of Subsidiary’s stock by the Company
in exchange for
a cash contribution to the Subsidiary, from the date of this
Agreement.
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(j)
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“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.
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(k)
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“Excess
Amount” is defined in Clause 5.2(c)(ii).
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(l)
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“Facility
Agreement” is defined in Clause
14.1(b).
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(m)
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“First
Drawing” means the first drawing made by the Company under the Term
Loan.
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(n)
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“First Drawing
Date” means the date on which the First Drawing is
made.
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(o)
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“Fixed
Productive Assets”
means:
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(i)
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any building, infrastructure, systems, plant
and equipment (including any cleanroom facilities and new
productive equipment) to be
set up and operated by the Subsidiary in
Singapore, for the
production of various semiconductor memory products
produced on 50nm or smaller technology;
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(ii)
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any direct costs (excluding costs that are not recorded as
capital items on the Subsidiary’s balance sheet) to bring the items
referred to in Clause 1.1(o)(i) to achieve productive
capability;
and
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(iii) |
any
other items or costs as the Board may agree to include as Fixed Productive
Assets from time to
time.
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(p)
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“Form
10K” is defined in Clause
12.1(f).
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(q)
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“Form
10Q” is defined in Clause
12.1(f).
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(r)
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“Full
Repayment” means the full repayment of all monies due under this
Agreement to the Board, including the principal and all interest due from
the Company to the Board under the Term
Loan;
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(s)
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“Full Repayment
Date” means the date on which Full Repayment is made by the Company
to the Board.
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(t)
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“Government”
is defined in Clause 21.4.
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(u)
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“Interest
Rate” is
defined in Clause 7.1(b).
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(v)
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“Month”
means a calendar month.
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(w)
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“Notice”
is defined in Clause 5.2(a).
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(x)
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“Outstanding
Loan” at any time means all the principal sums drawn down under the
Term Loan and remaining unpaid as at that
time.
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(y)
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“Payment Date”
means any Day falling on the first Business Day of March, June, September
or December, and “First Payment
Date” means the second Payment Date after the First Drawing
Date;
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(z)
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“Person”
shall include any company, partnership, limited liability partnership,
body of persons, association, body corporate and unincorporated
body.
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(aa)
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“Repayment
Date” is defined in Clause
8.
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(bb)
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“Requisite
Investment” is defined in Clause 4.3.
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(cc)
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“Security”
is defined in Clause 3(c)(iv).
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(dd)
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“Share
Equity
Mortgage
Agreement” is defined in Clause
3(c)(iv).
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(ee)
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“Subsidiary”
is defined in paragraph 1 of the recital to this
Agreement.
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(ff)
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“Taxes”
is defined in Clause 21.5.
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(gg)
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“Term
Loan” is defined in paragraph 2 of the recital to this
Agreement.
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(hh)
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“Year”
means a calendar year.
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1.2
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Unless
the context otherwise requires, words importing the singular number
include the plural number and vice
versa.
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1.3
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The
words “hereof”, “herein”, “hereunder”, “hereon” and “hereinafter” 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.
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1.4
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The
headings to the Clauses hereof shall not be deemed as part thereof or be
taken in consideration in the interpretation or construction thereof or of
this Agreement.
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1.5
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References
herein to “Clause” or “Clauses” are references to a Clause or Clauses of
this Agreement.
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2.
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TERM
LOAN
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2.1
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Subject
to the provisions of this Agreement and in particular those of Clauses 3,
4, 7, 8, 9, 11, 12, 13 and 14 being complied with, the Board shall make
available to the Company the Term Loan at the times and in the manner as
hereinafter provided.
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2.2
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Subject
to Clauses 4.4, 10.2 and 15.3, this Agreement, and the terms and
conditions herein, shall be binding on the Company until the Full
Repayment Date.
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3.
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CONDITIONS
PRECEDENT AND AVAILABILITY
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The
Company shall only be allowed to make any Drawing under the Term Loan, and the
obligations of the Board to make available the same shall be subject to all the
conditions precedent below to be fulfilled by the Company:
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(a)
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There
shall not exist at the date
of the Drawing to be
made, 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, which,
in each case, remains continuing and has not been waived by the
Board.
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(b)
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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 in all
material respects as of the date on which such were made, save to the extent waived by
the Board.
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(c)
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For
the First Drawing, the Company shall effect, execute or provide, in a
form, manner or substance that is to the Board’s reasonable satisfaction,
the following documents:
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(i)
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A
copy of the Certificate of
Incorporation and Articles of Association of the Company together
with an English version of the same, duly certified by a
Director, the Chief
Executive Officer, Chief Financial Officer, Treasurer or other
authorised
officer of the Company (each, an “Authorised
Officer”) to be a true copy
thereof;
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(ii)
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A
copy of the resolution of the board of Directors of the Company together
with an English version of the same duly certified by an Authorised Officer to be a
true copy thereof, in full force and effect and 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;
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(iii)
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Specimen signatures of the persons authorised to
sign this Agreement on behalf of the Company, and to sign the notices of
Drawing and any document
required under this Agreement on behalf of the Company or the
Subsidiary, such specimens to be certified by an Authorised Officer of
the Company to be the true signatures of such persons respectively;
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(iv)
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A duly executed security document creating an
equitable mortgage on Sixty-Six percent
(66%) of the
shares of the Subsidiary (which shares are or
shall be issued to
the Company), in
favour of the Board and the certificates of such shares in the name of the
Company,
including shares
issued pursuant to the Equity Contributions, with no prior encumbrance
thereon (the
“Security”) with duly executed blank
share transfer forms
for such shares to be delivered to the Board as security for the Term Loan. Such
Security
shall be in the form
attached as Appendix
III (the
“Share Equity Mortgage Agreement”). If the Subsidiary should
increase its share capital at any time, the Company shall subscribe
for such number of shares in the capital of the Subsidiary to ensure that
it holds directly at least Seventy percent (70%) of the total and
issued
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paid-up shares in
the capital of the Subsidiary. The Company shall similarly mortgage such additional shares
such that the
aggregate
shares mortgaged by
the Company hereunder shall constitute Sixty-Six percent (66%) of the total issued and paid-up
capital of the Subsidiary and shall execute any additional mortgage and
charge agreement and any other necessary documents in relation to such
additional mortgaged
shares in the
Subsidiary. If the Company shall acquire such
additional shares as aforesaid, it shall forthwith deliver or procure that
there be delivered to the Board the certificates in respect thereof
together with instruments of transfer in respect thereof duly executed in
blank;
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(v)
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A
legal opinion to the Board’s reasonable satisfaction, dated on or about
the date of this Agreement, provided by an attorney at law who is
qualified to opine, that under applicable
law(s):
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(I)
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the
Company has legal
capacity to enter into the obligations herein contained and to
furnish the Board with the
Security;
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(II)
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such
obligations are enforceable against the Company;
and
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(vi)
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A
letter of waiver from each shareholder of the Subsidiary (other than the
Company) to the Board’s reasonable satisfaction dated on or about the
First Drawing Date and confirming each shareholder’s unconditional and
irrevocable:
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(I)
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consent
to the creation of security over the Company’s shares in the Subsidiary as
agreed in the Share Equity Mortgage Agreement notwithstanding Article 34
of the Subsidiary’s Articles of Association;
and
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(II)
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waiver
of its preemption rights under Article 21 of the Subsidiary’s Articles of
Association.
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(d)
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All
acts, conditions and things required to be done, performed and to have
occurred:
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(i)
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precedent
to the execution and delivery of this Agreement;
and
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(ii)
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to
constitute this Agreement legal, valid and binding obligations enforceable
in accordance with its
terms;
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shall
have been done, performed and have occurred in compliance with all
applicable laws.
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(e)
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There
is no breach by the Company in any material respect of any of the terms,
conditions and undertakings herein contained which remains continuing and has
not been waived by the
Board.
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4.
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PURPOSE
OF THE TERM LOAN
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4.1
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Subject
to the terms and conditions herein contained and in particular to those of
Clauses 3, 4, 7, 8, 9, 11, 12, 13, and 14 being complied with, the Term
Loan shall be made available by the Board to the Company for the sole
purpose of providing funds
to the Subsidiary (by way of Equity Contributions to be made by the Company) to
purchase Fixed Productive
Assets.
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4.2
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Upon
receiving a Drawing under Clause 5, the Company shall apply all the
proceeds thereof for the purposes described in Clause
4.1.
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4.3
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It
is further agreed that this Term Loan shall be made available to the
Company on the conditions that the Company shall
cause:
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(a)
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at
least Three Hundred
Million Singapore
Dollars (S$300,000,000/-) or its equivalent in United States
Dollars (converted at a fixed USD/S$ exchange rate of 1.52), or such lower amount as may be
approved by the Board, to be used for Equity Contributions;
and
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(b)
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at
least One Billion Singapore Dollars
(S$1,000,000,000/-) inclusive of the amount under Clause 4.3(a), or
its equivalent in United States Dollars (converted at a fixed
USD/S$ exchange rate of 1.52), or such lower amount as may be
approved by the Board, to be incurred by the Subsidiary for the
financing, purchasing, building of or expenditure towards Fixed Productive
Assets by February 29, 2012 (the “Requisite
Investment”). If the shortfall (if any) in the Requisite Investment
ascertained as at February 29, 2012, the Company shall, on the Board’s
demand, pay a sum in Singapore Dollars computed as follows (utilizing 365 days per year for
partial-year calculations):
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(i)
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For a shortfall in the Requisite Investment of
Three Hundred Million
Singapore Dollars (S$300,000,000/-) or less, the sum shall be Thirty percent (30%) of such
shortfall multiplied by Three percent (3%) per year from the First Drawing
Date to the Full Repayment
Date;
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(ii)
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For a shortfall in the Requisite Investment of
more than Three Hundred
Million Singapore Dollars (S$300,000,000/-), the sum
shall be (a) the amount calculated in (i) immediately above, plus (b) the
amount of such shortfall that exceeds Three Hundred Million Singapore
Dollars (S$300,000,000/-) multiplied by Three percent (3%) per year from
the First Drawing Date to the Full
Repayment Date;
provided that in no event shall such sum exceed Nine Million Singapore
Dollars (S$9,000,000/-) per year, the absolute maximum amount
payable for each
year pursuant to
this Section
4.3(b).
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4.4
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If
the Company fails to make the Requisite Investment, the Board shall also
be at liberty to do the following in the following order of
priority:
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(a)
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terminate
this Agreement whereby the Board’s obligations herein contained shall
automatically and forthwith cease;
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(b)
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seek immediate
repayment of any unpaid amounts described in Clauses 4.4(c)(i) and (ii)
from the Company;
and
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(c)
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only
after (a) and (b) immediately above have been exhausted, enforce its
rights in the Security, the
proceeds of which (the “Enforcement
Proceeds”) shall be applied towards
the payment of part
or whole of:
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(i)
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the
Outstanding Loan;
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(ii)
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any unpaid fees, charges, interest or Default
Interest (where applicable) that have accrued and/or are imposed on the
Company in accordance with the terms and conditions herein contained;
and
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(iii)
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reasonable legal fees, costs and
expenses incurred to liquidate the Security and/or recover monies
outstanding under this
Agreement,
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it being understood that
any surplus Enforcement Proceeds remaining after the application set forth in Clauses
4.4(c) shall be paid to the Company.
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5.
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DRAWINGS
OF THE TERM LOAN
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5.1
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Subject
to the terms and conditions of this Agreement and in particular to all the
conditions of Clauses 3, 4, 7, 8, 9, 11, 12, 13, and 14 being complied
with, the Board shall make available, any sums under the Term Loan, for
Drawing by the Company, in each case in accordance with the terms and
stipulations herein.
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5.2
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When
the Company intends to make a Drawing, the Company shall be required
to:
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(a)
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inform
the Board of its intention to make a Drawing by serving written notice
(the “Notice”)
of the intended Drawing on the Board at least Fourteen (14) Business Days
prior to the intended date of Drawing; provided that this Fourteen-day
requirement shall be waived by the Board for the First
Drawing. Each Notice of Drawing shall be
substantially in the form set out in the Appendix I hereto and
shall:
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(i)
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state
the date (which must be a Business Day) and the amount of the proposed
Drawing;
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(ii)
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be
irrevocable and commit the Company to borrow the amount on the date
stated;
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(iii)
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constitute
a representation and warranty by the Company that as at the date of the
Notice, the warranties and representations set out in Clause 12 are true
and correct in all material respects (save to such extent waived by
the Board), that 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 which remains continuing and
unwaived by the
Board;
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(iv)
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describe
the Subsidiary’s purchase
and/or projected purchase of Fixed Productive Assets corresponding
to the Equity Contributions
for which the Drawing is made;
and
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(v)
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enclose
documents showing that the Company has applied for Shares of a value at
least equivalent to the Drawing.
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(b)
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in
respect of the First Drawing, furnish the Security and
Forms to the Board;
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(c)
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in
respect of the each Drawing:
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(i)
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the
Company shall without demand provide the
Board:
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(I)
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within
Forty-Five (45) days from the date of a Drawing, a statement of purchase
in such format as set out in Appendix II, signed by the Subsidiary’s
authorized signatory, and providing copies of purchase orders that show
Fixed Productive Assets of a minimum aggregate value equivalent to (1)
such Drawing and (2) all Drawings to date, to be purchased by the
Subsidiary. With respect to each Drawing, such purchase orders must be
issued on or after 1 November 2008, and no later than the date occurring
Thirty (30) days after such Drawing
Date;
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(II)
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within
Eighteen (18) months from the date of a Drawing, or such extended period
as may be permitted by the Board from time to time, a
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statement
of expenditure on capital assets (i.e., asset recorded as a capital asset
on the Subsidiary’s balance sheet), in such format as set out in Appendix
II, signed by the Subsidiary’s authorized signatory, giving a
breakdown of payments
and/or statements of accounts showing that Fixed Productive
Assets of an aggregate value equivalent in United States Dollars
(converted at a fixed USD/S$ exchange rate of 1.52) to Fifty percent (50%)
of such
Drawing were paid for by the Subsidiary;
and
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(III)
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on
or before February 29, 2012, a statement of expenditure in such format as
set out in Appendix II, signed by the Subsidiary’s authorized signatory
and certified by an
external auditor, certifying that Fixed Productive Assets of an
aggregate value equivalent in United States Dollars to One Billion Singapore Dollars
(S$1,000,000,000/-) (converted at a fixed USD/S$ exchange rate of
1.52) had been purchased, and for which Three Hundred
Million Singapore Dollars (S$300,000,000/-) (converted at a fixed USD/S$
exchange rate of 1.52) had been paid by the
Subsidiary.
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(ii)
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if the Board is not reasonably satisfied that any
documentary proof submitted under Clause 5.2(c)(i) shows that Fixed
Productive Assets of an aggregate value equivalent to such Drawing have
been purchased or paid for, as required above, interest shall be levied
and imposed on the difference between such Drawing and the amount
reasonably ascertained by the Board as the aggregate value of Fixed
Productive Assets to which such documentary proof relates (such difference
being the “Excess
Amount”), and shall be computed as
follows, instead of as set
out in Clause
7:
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(I)
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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;
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(II)
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in
respect of documents submitted
under:
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(AA)
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Clause
5.2(c)(i)(I), from the 46th
day after the date of the Drawing to the earlier
of:
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(aa)
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the
date that the Excess Amount is returned to the
Board;
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(bb)
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the
date on which the Board receives from the Company proof reasonably
satisfactory to the Board that purchase orders for Fixed Productive Assets
of an aggregate value equivalent to the Drawing in question were issued by
the Subsidiary;
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(BB)
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Clause
5.2(c)(i)(II), from and including the date that is Eighteen (18) months
(or such extended period as may be permitted by the Board) from the date
of a Drawing, to the
earlier of:
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(aa)
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the date that the Excess Amount
is returned to the
Board;
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(bb)
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the date on which
the Board receives from the Company proof of payment reasonably
satisfactory to the Board that Fixed Productive Assets of an aggregate
value equivalent in
United States Dollars (converted at a fixed USD/S$ exchange rate of 1.52)
to Fifty percent (50%) of such Drawing were paid for by the
Subsidiary;
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(CC)
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Clause
5.2(c)(i)(III), from and including February 29, 2012 up to the earlier
of:
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(aa)
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the
date that the Excess Amount is returned to the
Board;
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(bb)
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the
date on which the Board receives from the Company proof of payment
reasonably satisfactory to the Board for the purpose of computing whether
Fixed Productive Assets of an aggregate value
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equivalent
in United States Dollars
(converted at a fixed USD/S$ exchange rate of 1.52) to One Billion
Singapore Dollars (S$1,000,000,000/-) have been purchased, and
for which Three Hundred Million Singapore Dollars (S$300,000,000/-)
(converted at a fixed USD/S$ exchange rate of 1.52) has
been paid by the
Subsidiary.
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PROVIDED
THAT interest levied under this Clause shall not apply to the Excess Amount
during each calendar day of the Five-Business-Day notice period mentioned under
Clause 5.2(c)(iv).
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(iii)
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For the
avoidance of doubt,
any return of Excess Amount with any interest payable under Clause
5.2(c)(ii) to the Board shall not be deemed a prepayment under this
Agreement and the amount of Term Loan available at any time for drawing by
the Company shall exclude any Excess Amount(s) returned to
the Board.
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(iv)
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The Company shall
give the Board Five (5) Business Days’ prior written notice before
returning the Excess Amount and any interest payable under Clause
5.2(c)(ii).
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5.3
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The
First Drawing shall be made not later than March 1, 2009, or such later
date as may be approved by Chairman of the Board or his lawful
representative, failing which the obligations of the Board hereunder to
provide the Term Loan shall immediately
cease.
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6.
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AVAILABILITY
OF TERM LOAN
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The Term
Loan shall be available for Drawing for a period of One (1) Year from the First
Drawing Date, after which any undrawn portion of the Term Loan shall be
cancelled.
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7.
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PRINCIPAL
AND INTEREST PAYMENTS BY THE
COMPANY
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7.1
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The
Company’s obligations for principal repayments, interest payments and
Default Interest in relation to monies that have been drawn down by the
Company, shall be computed from each relevant Drawing date and in
accordance with the following stipulations. Pursuant to and
read conjunctively with Clauses 2, 8, 9 and
15:
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|
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(a)
|
for
the period of three (3) Years from the First Drawing Date, the Company
shall only be required to pay the interest applicable on the amounts of
the Term Loan drawn down and shall not be required to make any principal
repayments;
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|
|
(b)
|
interest
at [5.38%] per annum (the “Interest
Rate”) shall be levied on any amount of the Term Loan drawn down
and remaining unpaid
from the date it is drawn down up to and including the day
preceding the day on which the amount, together with interest payable thereon under this
Agreement, is fully
repaid;
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|
|
(c)
|
the
due date of the Company’s liability and obligation to make interest
payments to the Board (whenever applicable) shall commence from the First
Payment Date;
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|
|
(d)
|
the
applicable interest payable by the Company shall
be:
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|
(i)
|
payable
on a quarterly basis. The first interest payment shall be payable on the
First Payment Date;
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|
(ii)
|
calculated
from the date of the Drawing to which it
relates;
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|
(iii)
|
without prejudice to Clause
7.1(d)(ii),
computed on all amounts that had been drawn (and remain unpaid) on a
cumulative basis; and
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|
(iv)
|
levied
on the Company from the relevant date of Drawing up to and including the
day preceding the day of full repayment of the principal for which
interest is levied.
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|
(e)
|
if the Payment Date of the Company’s liability and
obligation to make interest payments to the Board (whenever applicable)
falls on a day which is not a Business Day, then the aforesaid payment due
date shall be extended to the next Business Day. In such an
event, no Default
Interest (as set out in Clause 7.4) shall be levied on the
Company.
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7.2
|
The Company shall pay to the Board on each Payment
Date, interest on the amounts of the Outstanding Loan from the First
Drawing Date (and
computed in
accordance with Clause 7.1(d)) until the full principal of the Term
Loan and all interests payable under this Agreement are fully repaid in accordance with the terms of
this Agreement.
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7.3
|
The
obligations for principal repayment, interest payments, overdue or delays
in interest payments (in relation to monies that have been drawn down by
the Company) under this Agreement shall be calculated at the applicable
Interest Rate on the basis of a year of Three Hundred and Sixty-Five (365)
Days for the actual number of Days
elapsed.
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7.4
|
The Board is entitled to charge and the Company
agrees, confirms and accepts the obligation to pay interest on amounts in
default (the “Default
Interest”) to be charged and that the rate of the Default Interest
charged 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 in the event of a failure by the Company to fulfill its obligations
to make any principal repayment or interest payment or if overdue or
delays in interest payments that become due, are owed or payable to the
Board. The Default Interest shall be charged on the outstanding
principal repayments, interest payments on such outstanding principal or
overdue or delayed interest payments, from the applicable Payment Dates
until such time when the relevant payments are fully repaid to the
Board. For avoidance of doubt, any Default Interest charged at
the rate set out in
this Clause 7.4 shall be in addition to and not in
substitution of the
Interest Rate.
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Micron
Technology, Inc. / EDB – Loan
Agreement
Page 10 of 26
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8.
|
REPAYMENT
OF THE TERM LOAN
|
The
Company shall repay all the principal monies drawn down under the Term Loan in
One (1) lump sum on the first Business Day occurring after Thirty-Six (36)
months from the First Drawing Date (the “Repayment
Date”).
|
9.
|
PAYMENT
PROVISIONS
|
|
9.1
|
All
payments to be made by the Company under this Agreement shall be received
by the Board not later than 11 a.m. (Singapore time) on the relevant Day
at its address above or into the Board’s bank account designated in
writing and provided to the Company at least Ten (10) Business Days prior
to the First Payment Date or at such other address or into such other bank
account as the Board may from time to time designate by written notice to
the Company not less than Ten (10) Business Days prior to the date of any
such payment.
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|
9.2
|
Any
payment (whether of
principal or interest) not received by the Board by 11 a.m.
(Singapore time) on the Payment Date on which it is due
shall be considered a
late payment
and shall be charged Default Interest as provided in Clause 7.4, from the
relevant Payment Date, until such time when the relevant payments are
fully repaid to the Board.
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|
10.
|
PREPAYMENT
|
|
10.1
|
Subject
to Clause 8, the Company may elect to prepay any part or the whole of the
Term Loan without penalty or premium, at any time before the Full
Repayment Date by giving the Board at least fourteen (14) Days’ prior written notice of
its intention to make any such prepayment(s) for any amount of the
outstanding Term Loan that had been drawn down by the
Company.
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|
10.2
|
The
Company shall be released from all of its obligations hereunder, and this
Agreement shall terminate, when:
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|
(a)
|
the
Company has repaid all the principal monies that it has drawn down under
the Term Loan, and
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|
(b)
|
the
Company has made the relevant payments for all fees, charges and/or
interest and/or Default
Interest (where applicable) that shall be imposed on the Company in
accordance with the terms and conditions set out
herein.
|
|
11.
|
SECURITY
|
|
The
Company shall:
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|
(a)
|
sign
the Share Equity Mortgage Agreement before the First Drawing
Date;
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|
(b)
|
procure
the requisite company resolutions for the creation of the
Security and the execution of the Share Equity Mortgage
Agreement;
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|
(c)
|
deliver
the Forms to the Board before or on
the date of First Drawing; and
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|
(d)
|
comply
with any registration requirements applicable under the laws of Singapore
and of Delaware relating to or arising from the
Security. Any
registration costs and expenses and stamp duty payable in respect of the
creation and/or perfection of the Security shall be borne by the
Company.
|
Micron
Technology, Inc. / EDB – Loan
Agreement
Page 11 of 26
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12.
|
WARRANTIES
AND REPRESENTATIONS
|
|
12.1
|
The
Company hereby warrants and represents to the Board as
follows:
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|
(a)
|
that
it is lawfully incorporated, validly existing and in good standing under
the laws of Delaware;
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|
(b)
|
that
the Subsidiary is lawfully incorporated, validly existing and in good
standing under the laws of the Republic of
Singapore;
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|
(c)
|
that
the Company and its Subsidiary each has the corporate power and authority
to carry on the business as now being conducted under the laws of Delaware
and of the Republic of Singapore
respectively;
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|
(d)
|
that
it has the corporate power to execute and perform this Agreement and to
borrow hereunder;
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|
(e)
|
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;
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|
|
(f)
|
that
to the Company’s best knowledge and belief
the latest balance sheets and financial statements of the Company
and its subsidiaries on a consolidated basis as reported on either Form
10Q or Form 10K of the United States Securities and Exchange Commission
(“Form
10Q” or “Form
10K”), are correct and complete and accurately represent the
financial conditions of the Company and its subsidiaries on a consolidated
basis on the dates thereof and the results of their operations for the
period then ended, and each such balance sheet shows all known present and
future liabilities, direct or contingent, of the Company and its
subsidiaries on a consolidated basis as of the date thereof, and each
financial statement referred to therein was prepared in accordance with
generally accepted accounting principles on a proper and consistent basis
and in accordance with all applicable legal
requirements;
|
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|
(g)
|
that
to the best knowledge of the Company, there has been no material adverse change in the
financial condition of the Company and its subsidiaries on a consolidated
basis since the date of its latest financial statements referred to in
Clause 12.1(f);
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|
|
(h)
|
save as set forth in the Company’s latest Form 10Q
or Form 10K or otherwise disclosed to the Board, there are, to the best
knowledge of the Company, no actions, suits or proceedings pending against
the Company or the Subsidiary at law or in
equity before any court or competent body adjudicating such matters, which
are likely to be adversely
determined and if adversely determined would likely result
in:
|
|
|
(i)
|
a material adverse change in
the business, operations or financial condition of
the Subsidiary or
|
|
(ii)
|
a material adverse
change in the financial condition of the
Company
|
and be likely to
materially and
adversely affect the Company’s ability to make repayment of the Term
Loan;
Micron
Technology, Inc. / EDB – Loan
Agreement
Page 12 of 26
|
|
(i)
|
that
to the best knowledge of the Company and the Subsidiary, no steps have
been taken or are being taken to appoint a receiver, manager, judicial
manager, liquidator or any other equivalent person over it or any of the
Company’s or the Subsidiary’s assets or in any winding up action against
the Company or the Subsidiary and no steps have been taken or are being
taken by the Company or the Subsidiary to enter into a composition,
compromise or arrangement with its
creditors.
|
|
12.2
|
Each
of the warranties and representations contained in Clause 12 are deemed to be made by the
Company by reference to the facts and circumstances then existing on (a) the date of
the Notice of each Drawing, and (b) on the date of each
Drawing. The Company shall promptly notify the Board upon the
Company’s filing of any Form 8-K with the United States Securities and
Exchange Commission.
|
|
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
shall be used solely as herein stipulated save with the prior written
consent of the Board;
|
|
|
(b)
|
that
it will and will procure that the business and affairs of the Company and
its Subsidiary are carried on and conducted with due diligence and
efficiency in accordance with sound technical, financial, industrial and
managerial standards and practices, as may be applicable to their
respective industries, including the maintenance of adequate
records with qualified personnel and in accordance with its or their
respective Memorandum and Articles of
Association;
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|
|
(c)
|
that
it will furnish and provide the Board with and permit the Board to obtain
all such statements, information, explanations and data as the Board may
reasonably require, by prior written notice, regarding the affairs and
financial condition of the Company and its Subsidiary, except to the extent that such
disclosure would breach any law, regulation, stock exchange requirement or
duty of confidentiality;
|
|
|
(d)
|
that
it will furnish to the Board a copy of the sale and purchase, assignment
or conveyance, as the case may be, of any kind of immovable (real)
property hereafter acquired by or for use by the
Subsidiary;
|
|
|
(e)
|
that
the Board shall, if an
Event of Default has occurred and is continuing, have the right, by
prior written notice and during the normal business hours of the
Subsidiary, to reasonably inspect any land or premises where the
Subsidiary carries on business and to reasonably inspect all property and
assets whatsoever therein or thereon, and all accounts, records and
statements wherever the same may be situated and to make inventories and
record thereof; provided that all such Board representatives shall be
covered by the Subsidiary’s confidentiality agreement with the Board and
comply with all of the Subsidiary’s safety and security policies and
procedures, and the Board shall indemnify and hold harmless the Subsidiary
from any and all damages, losses, costs, expenses that are caused by the
Board’s or its representatives’ negligent or intentional acts or omissions
while conducting such inspections;
|
|
|
(f)
|
that
it will supply to the Board certified copies of any resolution passed at
any general meeting of shareholders of the Subsidiary which may materially
and adversely affect the financial state and condition of the Subsidiary
within Fourteen (14) Business Days from the date of such resolution being
passed;
|
Micron
Technology, Inc. / EDB – Loan
Agreement
Page 13 of 26
|
|
(g)
|
that
it will provide annually to the
Board:
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|
|
(i)
|
a
copy of the Company’s consolidated balance sheet and profit and loss
statement, audited by a internationally reputed firm of auditors and their
report, as set forth on the Company’s Form 10K;
and
|
|
(ii)
|
a
copy of the Subsidiary’s annual returns filed with Singapore’s Accounting and Corporate
Regulatory Authority,
|
within Thirty (30) Business Days after
the issuance or filing thereof;
|
|
(h)
|
that
it shall ensure, to the extent reasonably practicable, the Subsidiary
punctually pays all rents, rates, assessments, taxes and all outgoings
(except where such are contested in good faith) payable in Singapore in
respect of any land or premises belonging to the Subsidiary at which it
carries on business, and the Subsidiary obtains all necessary licenses and
complies with all regulations, rules and orders relating to the carrying
on of its businesses on such premises, in each case where the failure to
make such payments or to so comply will have a material
and adverse effect on the Company or the
Subsidiary;
|
|
|
(i)
|
that
it will, to the extent reasonably practicable, ensure that the Subsidiary
keeps all its plants, machinery, equipment, buildings, constructions,
fixtures, fittings, implements and other effects in good and substantial
repair (ordinary wear and
tear excepted) and proper working condition in accordance with good
commercial practice;
|
|
|
(j)
|
that
it shall, to the extent reasonably practicable, ensure that the Subsidiary
does not dismantle, pull down or remove any part of its Fixed Productive
Assets, 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 excess, obsolete, worn out or damaged, in which case, the Company shall ensure
that such property, except excess property, is (when required by the business of
the Subsidiary) replaced by appropriate property in accordance with good
commercial practice;
|
|
|
(k)
|
that
it shall ensure the Board is given such written authorities or other
directions and provide such facilities and access as the Board may
reasonably require for the aforesaid inspection under Clause 13(e), but subject to the provisions
of such Clause, and the Company shall pay all reasonable costs,
fees, traveling and other out-of-pocket expenses whether legal or
otherwise of such
inspection;
|
|
|
(l)
|
that
during the term of this Agreement, the Company shall (unless the Board allows
otherwise) maintain
its shareholding in the Subsidiary at a minimum of
Seventy percent (70%), whether directly or indirectly, and the main
purpose of the Subsidiary shall be to manufacture semiconductor
products;
|
|
|
(m)
|
that
the Company shall ensure that the relevant percentage (as stated in the
Share Equity Mortgage Agreement) of any new shares issued by the
Subsidiary pursuant to Company’s Equity Contributions at any time before
the Full Repayment Date shall be mortgaged to the Board in accordance with the Share
Equity Mortgage
Agreement;
|
Micron
Technology, Inc. / EDB – Loan
Agreement
Page 14 of 26
|
|
(n)
|
that
its payment obligations under this Agreement rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying to
companies generally;
|
|
|
(o)
|
that
it shall ensure that the Subsidiary’s total borrowings (including bank
borrowings and finance lease liabilities) shall not exceed an aggregate of
Seven Hundred Seventy Million United States Dollars (USD770,000,000/-) at
all times before all outstanding principal and interests under this
Agreement are repaid to the Board, and that it shall obtain the Board’s
prior written consent for any borrowings by the Subsidiary in excess of
the said aggregate total borrowings;
and
|
|
|
(p)
|
that
it shall refrain from exercising any rights under the fixed and floating
charge dated on or
about 7 April 2008 made between the Subsidiary as
chargor and the Company as chargee in a manner that would reasonably be
expected to materially prejudice the value of the Board’s Security as set forth in the Share Equity Mortgage Agreement
for so long as an Event of Default has occurred and is
continuing.
|
|
14.
|
NEGATIVE
UNDERTAKINGS
|
|
14.1
|
The
Company hereby undertakes and agrees with the Board that the Company and
the Subsidiary shall not, without the Board’s written consent, which shall
not be unreasonably withheld:
|
|
|
(a)
|
effect
any form of reconstruction including amalgamation with another company
which will result in a change in the control of the Company or result in the Company
ceasing to own at least Seventy percent (70%) of the Shares, whether
directly or indirectly; or
|
|
|
(b)
|
create
or permit to arise or subsist, any mortgage, charge (whether fixed or
floating), mortgage, lien or other encumbrances whatsoever on any of the Subsidiary’s properties or assets,
both present and future whatsoever, situated in Singapore other than those encumbrances
created or permitted under the Subsidiary’s US$600,000,000 “Facility
Agreement”, dated March 31, 2008, and
related Company guarantee or any amendment, renewal or replacement
thereof;
|
and that
the Subsidiary shall not, without the Board’s written consent, which shall not
be unreasonably withheld, make, issue or give any loans, debentures, bonds or
credits to any persons other than the Company, or any other related corporations
of the Company or the Subsidiary, other than as permitted by the Facility
Agreement or any amendment renewal or replacement thereof.
|
14.2
|
The
Company hereby undertakes and agrees with the Board that its Subsidiary
shall not, without the Board’s written consent, which shall
not be unreasonably withheld, embark on any new project,
substantial expansion or diversification of their present businesses and
operations, which is not related to its purposes as described in Clause
13(l).
|
|
15.
|
EVENTS
OF DEFAULT
|
|
15.1
|
If
any one or more of the following Events of Default shall
occur:
|
Micron
Technology, Inc. / EDB – Loan
Agreement
Page 15 of 26
|
|
(a)
|
if
the Company shall fail, neglect, delay, omit or refuse to make the
requisite payments for any sums of monies, whether fees, charges, interest
(including Default Interest if applicable), principal or otherwise which
becomes due on any Payment Date or which are payable under this Agreement;
provided that if such non-payment is caused by technical errors (or force
majeure, such as power failures or system breakdowns in the banking
system) and such failure is rectified within Five (5) Business Days, the
Company is not to be treated for the purpose of this Clause as having
failed, neglected, delayed, omitted or refused to make such payment;
provided, however, that Default Interest shall nonetheless apply until
such failure is rectified.
|
|
|
(b)
|
if
any event of default is declared by any banker of the Company in an
outstanding amount greater than Twenty Million United States Dollars
(US$20,000,000.00) and such indebtedness is accelerated by the banker with
respect thereto;
|
|
|
(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 inaccurate, false, misleading or incorrect in any material
respect when given and such default (if capable of being rectified) is not
rectified for a period of Thirty (30) Days after the Company becomes aware
of the occurrence of such default; provided that Company’s lack of
awareness shall not be willful or grossly
negligent;
|
|
|
(d)
|
if
the Company defaults in the due performance of any undertaking, condition
or obligation on its part to be performed and observed herein contained
(including the payment of any monies due under this Agreement)
and such default (if capable of being rectified) is not 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, except for frivolous or vexatious petitions, is presented in
any court of competent jurisdiction or a resolution is passed by the Company, its holding
company or the Subsidiary for the winding-up of the Company, its
holding company or the Subsidiary (as the case may be) or
for the filing or any application for placing the Company, its holding
company or the Subsidiary under judicial management, or any similar or
analogous proceedings are taken against any of them and are not discontinued, withdrawn, discharged or revoked
within two (2) months after being
presented or passed, as the
case may be;
|
|
|
(f)
|
if
any encumbrancer or lessor shall take possession (“attachment”) or a receiver, manager,
judicial manager, liquidator or other similar officer is appointed for the
whole of the undertaking, property or assets, or any substantial part thereof,
of the Company, its holding company or the Subsidiary and the affected
property is not released from such attachment or appointment within
Thirty (30) Days of
such attachment or appointment; provided that no part of the undertaking,
property or assets of the Company, its holding company
or the Subsidiary, as the case may be, so affected shall be deemed
substantial if it does not have a value exceeding Twenty Million United
States Dollars (US$20,000,000.00);
|
|
|
(g)
|
if a distress or execution is levied or enforced
against any substantial
part of the property or assets of the Company, its holding company
or the Subsidiary and is not discharged within Thirty (30) Days of being
levied and the Board is of the reasonable opinion that such an event will
materially prejudice the Board’s interests; provided that no part of the
undertaking, property or assets of the Company, its holding
|
Micron
Technology, Inc. / EDB – Loan
Agreement
Page 16 of 26
|
|
company or the
Subsidiary, as the
case may be, so affected shall be deemed substantial if it does not have a
value exceeding Twenty Million United States Dollars
(US$20,000,000.00);
|
|
|
(h)
|
if
a final, non-appealable judgment or order is made against the Company and
such is not discharged within Sixty (60) Days or such longer period permitted
by law;
|
|
|
(i)
|
if
the Company, its holding company or the Subsidiary becomes insolvent or is
unable or deemed by statute
in its jurisdiction of incorporation to be unable to pay its debts
or admits in writing its inability to pay its debts as they fall due, or
enters into any composition, compromise or arrangement with its creditors generally or
makes any assignment for the benefit of its creditors generally
and the Board is of the reasonable opinion that any such event will
materially prejudice the Board’s
interests;
|
|
|
(j)
|
if
the Company or the Subsidiary ceases or threatens to cease to carry on its
business and the Board is of the reasonable opinion that such cessation of
business will materially and adversely affect the
performance and observation of the Company’s obligations under
this Agreement;
|
|
|
(k)
|
if
any material license, consent or approval of any authority, whether
granted to the Company or the Subsidiary, 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, and such situation is not remedied within Thirty (30)
Days;
|
|
|
(l)
|
if
any of the consents, authorities, approvals, waivers or resolutions
referred to in Clause 3 shall be modified in a manner that materially prejudices the
interests of 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 effect and such
circumstances are
reasonably considered by the Board to be material and prejudicial
to its interests;
|
|
|
(m)
|
if
without the Board’s prior written consent, there is any change in the
shareholding of the Subsidiary which results in the Company holding less than Seventy
percent (70%) of the Shares (directly or indirectly);
or
|
|
|
(n)
|
an
event or circumstance occurs that has, or would very likely have, a material
adverse effect on the ability of the Company to perform and comply
with its obligations under this
Agreement;
|
then, and
in any such event, the Board may, by written notice to the Company declare that
an Event of Default has occurred.
|
15.2
|
Upon
the declaration by the Board under Clause 15.1
that an Event of Default has
occurred:
|
|
|
(a)
|
the
whole of the principal sum drawn down and owing under the Term Loan,
interest thereon and all fees, charges, interest, Default Interest (where
applicable) or any other sums agreed to be paid under this Agreement shall
immediately become due and payable by the Company to the Board without any
demand or notice of any kind from the Board;
and
|
Micron
Technology, Inc. / EDB – Loan
Agreement
Page 17 of 26
|
|
(b)
|
it
shall be lawful for the Board to exercise all or any rights, powers or
remedies under this Agreement, including without limitation the right to
exercise its rights in the
Security.
|
|
15.3
|
In
the event of an occurrence and the subsequent declaration of an Event of
Default by and at the reasonable discretion of the Board, pursuant to
Clause 15.2, before the Term Loan shall have been fully drawn or utilized
under this Agreement, this Agreement shall be terminated and the Board’s
obligations herein contained shall automatically and forthwith
cease.
|
|
15.4
|
After
the declaration by the Board that an Event of Default has occurred, all
monies received or recovered by the Board (whether such monies 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, upon
exercising its rights over the Security 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 reasonable costs, charges and expenses, if
any, incurred in enforcing this Agreement and/or the
Security.
|
|
|
(b)
|
Secondly,
in or towards payment to the Board of all monies and liabilities due,
owing or outstanding under this Agreement and where such monies and
liabilities are of a contingent nature, in or towards making full and
adequate provisions for payment of such monies and liabilities as and when
they become due and payable; and
|
|
|
(c)
|
Thirdly,
thereafter, any surplus shall be paid to the
Company.
|
|
16.
|
NOTICES
|
All
notices and other communications hereunder shall be in writing and shall be
deemed duly given upon (a) transmitter’s confirmation of a receipt of a
facsimile transmission (if the
time of transmission is after 5 pm Singapore Time (GMT + 8) on a Business Day,
such transmission shall be deemed to be served on the next
succeeding Business Day), (b) confirmed delivery by a standard overnight
or recognized international carrier or when delivered by hand, or (c) delivery
in person, addressed at the following addresses (or at such other address for a
party as shall be specified by like notice):
if to
Company, to:
Micron
Technology, Inc.
8000
Xxxxx Xxxxxxx Xxx
Xxxxx,
Xxxxx 00000-0000
Fax: (000)
000-0000
Attention: General
Counsel
With a
copy to:
Micron
Technology, Inc.
8000
Xxxxx Xxxxxxx Xxx
Xxxxx,
Xxxxx 00000-0000
Fax: (000)
000-0000
Attention:
Treasurer
if to
Board, to:
Micron
Technology, Inc. / EDB – Loan
Agreement
Page 18 of 26
Economic
Development Board
250 Xxxxx Xxxxxx
Xxxx
#00-00 Xxxxxxx Xxxx Xxxxx
Xxxxxxxxx 000000
Fax: x00
0000-0000
Attention: Head, Electronics
Division
|
17.
|
WAIVER
NOT TO PREJUDICE RIGHT OF BOARD
|
The Board
may at any time waive as it deems fit any breach by the Company of any
undertaking, stipulation, term or condition 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
monies under this Agreement 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 under this Agreement shall not be impaired or
discharged by reason of passage or extension of time or other indulgence being
granted by or with the consent of the Board to any third party who or which may be
in any way liable to pay any monies owing under or in connection with this
Agreement, whether secured by any security created by such third party in
favour of the Board or otherwise, 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 the Board’s rights and remedies relating to such
liability or under the provisions of this Agreement or such
security.
|
19.
|
SEVERABILITY
|
If 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 did not form a part of this
Agreement.
|
20.
|
GOVERNING
LAW & DISPUTE RESOLUTION
|
Micron
Technology, Inc. / EDB – Loan
Agreement
Page 19 of 26
|
20.1
|
This
Agreement shall be governed by and construed in all respects in accordance
with the laws of the Republic of
Singapore.
|
|
20.2
|
The
Courts of Singapore shall have jurisdiction to resolve any dispute arising
out of or in connection with this Agreement, including a dispute regarding
the existence, validity or termination of this
Agreement.
|
|
20.3
|
The
Company agrees that service of process on the Company may be effected at
the Singapore address of the Subsidiary and such service shall be deemed
to be good and effectual service on the
Company.
|
|
21.
|
MISCELLANEOUS
|
|
21.1
|
All reasonable legal and other professional fees,
out-of-pocket expenses, charges, costs and expenses incurred by the Board and charged
to the Board by its solicitors in connection with this Agreement
and any documentation concerning the creation and perfection of the
Security, including without limitation the reasonable legal fees and
expenses incurred by the Board to obtain the foreign legal opinion, shall be paid by the
Company. The
parties agree that the fees, out-of-pocket expenses, charges, costs and
expenses to be paid by the Company under this Clause 21.1 shall not in
aggregate exceed Two Hundred Fifty Thousand Singapore Dollars
(S$250,000.00).
|
|
21.2
|
The
Company shall further pay all reasonable legal fees as between solicitor
and client and other costs and disbursements incurred in connection with
demanding and enforcing payment of monies due under this Agreement, the
Security and otherwise howsoever in enforcing the performance of any
undertakings, stipulations, terms, conditions or provisions under this
Agreement.
|
|
21.3
|
A
certificate signed by a duly authorised officer for the time being of the
Board as to the amount of monies and liabilities (including interest) for
the time being due to or incurred by the Board under this Agreement shall
be prima facie evidence of
such amount and
be binding on the Company, save for any
error.
|
|
21.4
|
This
Agreement shall be binding upon the successors of the Company
and shall inure to the benefit of the Board and its successors and
assigns. If the Board’s Capital Assistance Scheme is to be transferred or
is to be handed over to be administered by another agency, statutory body
or legal entity under the control of the Government of the Republic of
Singapore (the “Government”),
the Company hereby agrees and undertakes to execute any documents
necessary to effect any assignments or novations (where applicable and if
required by the Board) in order to
facilitate the transferring and handing over to such other above-mentioned
agency, statutory body or legal entity. Save for the aforesaid agency,
statutory body, legal entity and the Government, the Board shall not
assign this Agreement, the Security nor any rights under this Agreement or
the Security to any third party without the Company’s prior written
consent which consent shall not be unreasonably withheld. Save
as expressly provided under this Clause, a person who is not a party to
this Agreement has no right under the Contracts (Rights of Third Parties)
Act (Cap. 53X, Xxxxxxxxx Xtatutes) to enforce or enjoy the benefit of any
term of this Agreement.
|
|
21.5
|
For the avoidance
of doubt, all sums payable under this Agreement to the Board shall be without
set-off or counterclaim and free of and without deduction for any present
or future deductions or taxes of whatsoever nature, howsoever imposed,
levied or assessed whether
or
|
Micron
Technology, Inc. / EDB – Loan
Agreement
Page 20 of 26
|
|
not with interest
thereon or penalties with respect thereto (“Taxes”). Should any payment due to the
Board from the Company hereunder be subject to any such Taxes, the Company
shall pay to the Board such additional amounts as may be necessary to
ensure that the Board receives a net amount equal to the full amount which the Board would
have received had payment not been made subject to such
Taxes. The Board shall use all reasonable efforts to assist the
Company to obtain a waiver for any withholding taxes and cooperate with
the Company to execute, deliver and file with the United
States government all documents necessary to obtain such withholding tax
waiver.
|
|
21.6
|
This
Agreement may not be amended or modified without the written consent of
each party hereto.
|
|
21.7
|
Nothing
in this Agreement, whether express or implied, is intended or shall be
construed to confer, directly or indirectly, upon or give to any Person,
other than the parties hereto any legal or equitable right, remedy or
claim under or in respect of this Agreement or any covenant, condition or
other provision contained herein.
|
|
21.8
|
This
Agreement may be executed in several counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same instrument. Any party hereto may enter into this Agreement
by signing any such counterpart and each counterpart may be signed and
executed by the parties hereto and transmitted by facsimile transmission
and shall be as valid and effectual as if executed as an
original.
|
|
21.9
|
This
Agreement, together with Appendices I to III hereto and the agreements and
instruments referred to herein, constitute the entire agreement of the
parties hereto with respect to the subject matter hereof and supersede all
prior agreements and understandings, oral and written, among the parties
hereto with respect to the subject matter
hereof.
|
IN
WITNESS WHEREOF this Agreement has been signed by or on behalf of the parties
hereto the day and year first before written.
By: /s/
Xxxxxx X.
Xxxxxx
Name: Xxxxxx
X.
Xxxxxx
Title: CFO and
Vice President of
Finance
STATE OF
IDAHO )
) ss.
COUNTY OF
ADA )
On this ___ day of February, 2009, before me, a Notary
Public in and for said state, personally appeared ______________________, known
to me to be the ________________ of Micron Technology Inc. (the “Company”), who
executed the foregoing instrument in behalf of the Company and acknowledged to
me the Company executed the same.
IN WITNESS WHEREOF I have hereunto set my hand and
affixed my official seal the day and year in this certificate first above
written.
Notary Public ___________________________
Micron
Technology, Inc. / EDB – Loan
Agreement
Page 21 of 26
Residing
at:
Commission Expires:
ECONOMIC
DEVELOPMENT BOARD
By: /s/
Xx. Xxx Swan Gin
Name: Xx. Xxx
Swan Gin
Title: Managing
Director
in the
presence of : Quek Hong How 58318207E
(Name and NRIC No. of Witness): /s/ Quek Hong
How
Micron
Technology, Inc. / EDB – Loan
Agreement
Page 22 of 26
APPENDIX
I
ECONOMIC
DEVELOPMENT BOARD
000 Xxxxx
Xxxxxx Xxxx
#00-00
Xxxxxxx Xxxx xxxxx
Xxxxxxxxx
000000
Attention: Finance
Division
Dear
Sirs,
NOTICE
OF DRAWING
TERM
LOAN OF S$ 300,000,000 (THE
“EDB LOAN
AGREEMENT”)
Pursuant
to Clause 5 of the EDB Loan Agreement
dated 200[ ] and made between you and us in
respect of the above Term Loan we hereby give you notice for a Drawing of
Dollars [ ] ($)
on 20
We
confirm that, save to any extent
waived by you —
|
|
(i)
|
the
conditions precedent under Clause 3 of the EDB Loan Agreement have been
complied with in every respect;
|
|
|
(ii)
|
each
of the representations and warranties contained in Clause 12 of the EDB
Loan Agreement are true and accurate in all material respects as though
made on the date of this Notice with reference to facts and circumstances
presently subsisting and will be true and accurate in all material
respects on the date of the intended Drawing as though made on the date of
the intended Drawing with reference to facts and circumstances then
subsisting; and
|
|
|
(iii)
|
as
at the date hereof no Event of Default has occurred which remains continuing and
unwaived by you and no event has occurred and remains continuing and
unwaived by you which, with the giving of notice or the lapse of
time or upon you making any necessary determination under Clause 15 of the
EDB Loan Agreement, would constitute an Event of Default, and we undertake
that, save to any extent
waived by you, no Event of Default and none of the events aforesaid
will remain continuing at the date of
the intended Drawing.
|
The purchase and
projected purchase of
Fixed Productive Assets by TECH Semiconductor Singapore Pte. Ltd corresponding
to the Equity Contributions for which the Drawing is made are as
follows:
|
Purchases:
|
|||
|
Date of
Purchase
|
Description of
Item
|
PO number or
equivalent
|
Purchase price in
SGD
|
|
Projected
Purchases:
|
|||
|
Estimated Date of
Purchase
|
Description of
Item
|
Purchase price in
SGD
|
|
|
TOTAL:
|
Micron
Technology, Inc. / EDB – Loan
Agreement
Page 23 of 26
Please
credit the amount of
S$ into
our bank account as follows:
Account
Name:
Account
Number:
Bank
Name/ Number:
Bank
Branch Name/ Number:
SWIFT
Code if applicable:
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 ________20________
Yours
faithfully
Director/Authorised
Signatories
Micron
Technology, Inc. / EDB – Loan
Agreement
Page 24 of 26
APPENDIX
II
[Insert TECH CAS
Spreadsheet “Statement of Purchase / Expenditure for the
Period”]
Micron
Technology, Inc. / EDB – Loan
Agreement
Page 25 of 26
APPENDIX
III
Share
Equity Mortgage Agreement
Micron
Technology, Inc. / EDB – Loan
Agreement
Page 26 of 26
