Exhibit 4.19.1
(XXXXX & XXXXXXXX ADVOCATES & SOLICITORS LOGO)
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Dated 8 July 0000
XXXXXXXXX TECHNOLOGIES PTE LTD
and
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
AGREEMENT FOR SUB-LICENCE AND SUB-LEASE
XXXXX & XXXXXXXX
XXX XXXXXX XXXXXXXXX #00-00
XXXXXXXXX 000000
THIS AGREEMENT is made on 8 July 2005 BETWEEN:
(1) SINGAPORE TECHNOLOGIES PTE LTD, a company incorporated in Singapore and
having its registered office at at 00 Xxxxxxx Xxxx #00-00 XxxxXxx Xxxxxx
Xxxxxxxxx 000000 (hereinafter called "ST" which expression shall include
its successors-in-title);
(2) CHARTERED SEMICONDUCTOR MANUFACTURING LTD, a company incorporated in
Singapore and having its registered office at 00 Xxxxxxxxx Xxxxxxxxxx Xxxx
X Xxxxxx 0, Xxxxxxxxx 000000 (hereinafter called "CHRT" which expression
shall include its successors-in-title and permitted assigns).
WHEREAS:
(A) ST has entered into a Building Agreement (the "BUILDING AGREEMENT" which
expression shall include all variations thereof and supplements thereto)
dated 21 April 2005 with Jurong Town Corporation ("JTC" which expression
shall include its successors-in-title and assigns) in respect of the land
more particularly described in the FIRST SCHEDULE hereto (the "PROPERTY")
for the construction of factory buildings and other structures therein and
for the installation of equipment fixtures and fittings thereof for the
purpose of wafer fabrication plant operations in accordance with the terms
and conditions contained in the Building Agreement.
(B) Under the terms of the Building Agreement, JTC has agreed to:
1. grant a licence to ST to enter upon the Property for a period of three
(3) years commencing from 16 May 2000; and
2. lease the Property to ST for a term of thirty (30) years (the "HEAD
LEASE") commencing from 16 May 2000 upon compliance with the
conditions set out in Clause 4 of the Building Agreement,
on the terms and conditions set out therein.
(C) With the consent of JTC, ST has agreed:
1. to grant a sub-licence to CHRT for a period of three (3) years (less
one (1) day) commencing from the Commencement Date; and
2. that upon the completion of the Development and subject to compliance
with the conditions set out in this Agreement, ST shall grant to CHRT
a sub-lease of the Property for a term of thirty (30) years less one
(1) day commencing from 16 May 2000,
on the terms and conditions hereinafter set out.
NOW IT IS HEREBY AGREED as follows:
1. In this Agreement, the following expressions shall have the following
meanings:
"COMMENCEMENT DATE" means 16 May 2000;
"DEVELOPMENT" means the construction on the Property of factory buildings
and other structures therein and the installation thereon of equipment
fixtures and fittings thereof for the purpose of slurry treatment and its
ancillary activities only operations in accordance with the terms and
conditions contained in the Building Agreement;
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"SUB-LICENCE PERIOD" means the period of three (3) years less one (1) day
commencing from and including the Commencement Date.
2. For the Sub-Licence Period or for such further period as may be extended by
ST, CHRT shall have the licence and authority to enter upon the Property
for the carrying out of the works relating to the Development in accordance
with the stipulations hereinafter contained and as contained in the
Building Agreement and for no other purpose.
3. CHRT hereby agrees to perform and observe the following stipulations:
3.1 To hold the Property until the same shall be comprised in a sub-lease to be
granted as hereinafter provided as licensee upon the same terms relating to
the sub-lease referred to in Clause 3.2 herein at the same rent and subject
to the same covenants and stipulations so far as applicable as if a
sub-lease thereto has been actually granted and so that ST shall have all
the remedies by whatsoever means for rent in arrears that are incidental to
the relationship of landlord and tenant but so that nothing herein
contained shall be construed as creating a legal demise or any greater
interest in the licence than a tenancy at will;
3.2 To pay in advance as from the Commencement Date a licence fee, calculated
at the same rate and on the dates specified as for the rent reserved in the
sub-lease of the Property in the SECOND SCHEDULE hereto as if such
sub-lease has actually been granted;
3.3 To pay on JTC's behalf to the Comptroller of Property Tax an amount
equivalent to the sum payable by JTC as property tax in respect of the
Property improvements and structures thereon during the Sub-Licence Period
or of such extended period (if any) permitted under Clause 4.3 hereof by
way of additional licence fee or for the period prior to the issue of the
sub-lease to be granted under Clause 6 herein;
3.4 To pay interest at the rate of 8.5% per annum or such higher rate as may be
determined from time to time by ST in respect of any outstanding amount
payable by CHRT under this Agreement from the date such amount becomes due
until payment in full is received by ST.
3.5 To pay to ST all survey fees and other charges including those payable to
and claimed by the relevant Government Planning Authorities for the survey
of the Property for the purpose of sub-division of the land of which the
Property forms part and the preparation and issue of a Certificate of Title
PROVIDED THAT JTC shall have the right to employ its own surveyor to carry
out the said survey in which event CHRT shall bear all costs incurred.
3.6 At the cost and expense of CHRT:
3.6.1 to engage a professional engineer to carry out soil investigations to
advise on the soil conditions and to design structurally sound
buildings proposed to be erected taking into consideration the
condition of the Property; and
3.6.2 to execute such work as may be required to be done in respect of the
state and condition of the Property (especially its ground levels,
topography and soil conditions) which state and condition CHRT shall
be deemed to have full knowledge.
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3.6.3 Without prejudice to sub-clauses 3.6.1 and 3.6.2 above to submit full
and complete plans as follows:
(i) the plans shall show the site layout, landscaping,
perspectives, elevations and specifications of the buildings
and other structures proposed to be erected on the Property;
(ii) the plans shall be submitted within three (3) months from the
date hereof, firstly to the ST for ST's and JTC's prior written
approval and then to the relevant governmental and statutory
authorities for their prior written approval;
(iii) the plans shall comply with all relevant laws and regulations
including the Planning Act, the Building Control Act, the Fire
Safety Act, and the Environmental Pollution Control Act,
PROVIDED THAT:
(iv) JTC and ST may give or refuse their approval at their absolute
discretion and in exercising such discretion may choose to take
into consideration whether the plans comply with JTC and ST's
aesthetic control guidelines or are satisfactory from the point
of view of, amongst others, layout, site utilisation,
landscaping, materials for construction or facades, type,
colour and appearance of buildings and other structures; and
(v) the plans approved by JTC and ST shall not be amended without
the prior written approval of JTC and ST regardless of whether
the amendments have been approved by the relevant governmental
and statutory authorities.
3.7 At its own cost to commence erection on the Property either within six (6)
months from the Commencement Date or within one (1) month from the date of
approval of the plans by the relevant Government Building Authorities,
whichever is the earlier, and in a substantial and xxxxxxx-like manner with
the best materials of their available kinds and in conformity in every
respect with the plans approved by ST and JTC and the relevant Government
Building Authorities to finish the Development so as to be completely fit
for immediate occupation and operation within the Sub-Licence Period
PROVIDED ALWAYS THAT:
3.7.1 in the planning, erection, construction and completion of the said
buildings to be comprised in the Development, to develop Xxxxxxx Xxxx
X00000, X00000(x), A12787(b), A12787(d), A12787(e), A12787(k) and any
other land that may be occupied by CHRT within Woodlands Industrial
Park D to a gross plot ratio of not less than 0.6 but not more than
1.4 and in the event that the aforesaid gross plot ratio exceeds 1.4
CHRT shall obtain the prior written consent of JTC, ST and the
relevant governmental and statutory authorities and at its own cost
and expense be responsible for all developmental charges/differential
premium and any other charges that may be payable in consequences
thereof and in addition pay to JTC or ST an additional land premium
to be determined by JTC or ST in their absolute discretion;
3.7.2 CHRT shall not install or use any electrical installation, machine or
apparatus that may cause or causes heavy power surge, high frequency
voltage and current, air borne noise, vibration or any electrical or
mechanical interference or disturbance whatsoever which may prevent
or prevents in any way the service or use of any
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communication system or affects the operation of other equipment,
installations, machinery, apparatus or plants of other licensees; and
3.7.3 CHRT shall engage, at its own cost and expense, a Qualified Person
(as defined in the Building Control Act) to certify to ST and JTC, in
JTC's required format, on or before 15 November 2003 that the said
works have been completed in accordance with and strictly comply in
each and every way with the plans approved by ST and JTC.
3.8 At its own cost to take such steps and execute such works upon the Property
as may be necessary for the protection of shores and embankments if any and
for the prevention of earth-slip erosion of soil and failure of slopes
expeditiously in a xxxxxxx-like manner and to the satisfaction of ST and
JTC and other relevant governmental and statutory authorities.
3.9 If CHRT shall fail to complete the Development and to commence operations
within the period specified in Clause 3.7.3 or within any extended period
under Clause 4.3 hereof CHRT shall pay to ST a sum calculated at the rate
of $200.00 per day as liquidated damages for the period during which the
said buildings to be comprised in the Development shall so remain or have
remained incomplete PROVIDED THAT such payment shall not prejudice any
other right or remedy ST and JTC may have against CHRT including its right
of re-entry under clauses 4.2 and 4.4.
3.10 To remove and replace any materials brought on the Property or used for the
Development or any part thereof which ST or JTC shall require to be removed
as being inferior or unfit and to make good any workmanship which ST or JTC
shall consider imperfect and if CHRT fails to remedy such defects ST or JTC
may enter upon the Property and remedy such defects at the expense of CHRT
after expiry of fourteen (14) days' notice being given to CHRT to do so.
3.11 Not to erect or build or permit or suffer to be erected or built any
building, structure or installation other than those conforming with the
plans elevations sections and specifications approved by ST and JTC and the
relevant Government Building Authorities nor to make any alterations in the
external elevation of any of the said buildings to be comprised in the
Development when erected without the prior consent in writing of ST and
JTC.
3.12 In the erection and completion of the Development to do all acts and things
required by and to perform the works in conformity in all respects with the
provisions of any laws or regulations made thereunder and to pay and keep
ST and JTC indemnified against all claims and other payments whatsoever
which during the progress of the works may become payable in respect of the
said works or of anything done under the authority herein contained and
from time to time to discharge and pay all claims, assessments and
outgoings now or at any time hereafter be chargeable against JTC or ST
under any law or otherwise in regard to the Property, the said buildings or
any structures or installations thereon.
3.13 Not to do or permit or suffer to be done in or upon the Property or any
part thereof anything which in the opinion of ST or JTC may be or become a
nuisance or annoyance or cause damage or inconvenience to ST or to JTC or
to the licensees or occupiers of any adjoining or neighbouring premises or
whereby any insurance for the time being effected
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on the Property under sub-clause 3.18 herein may be rendered void or
voidable or be in any way affected.
3.14 Not to sell or dispose of any earth, clay, gravel or sand from the Property
or permit or suffer any of the same to be removed except so far as shall be
necessary for the execution of the said works PROVIDED nevertheless that
CHRT may use for the purpose of the said works any of the approved
materials if so required.
3.15 Not without the prior consent in writing of ST and JTC to remove or permit
or suffer to be removed until after completion of the buildings comprised
in the Development in accordance with the provisions herein contained any
building materials (other than inferior or unfit materials removed for the
purpose of being replaced by proper materials) or plant which shall be
brought upon the Property for the purpose of the Development.
3.16 Not without the prior consent in writing of ST and JTC to affix or exhibit
or erect or paint or permit or suffer to be affixed or exhibited or erected
or painted on or upon any part of the exterior of the Property or of the
external walls or rails or fences thereof any nameplate, signboard,
placard, poster or other advertisement or hoarding.
3.17 Not at any time to deposit or make up or manufacture or permit or suffer to
be deposited made up or manufactured upon the Property any building or
other materials except such as shall be actually required for the buildings
to be erected on the Property in accordance with this Agreement and the
Building Agreement and as soon as the buildings hereinbefore agreed to be
erected shall be completed at its own expense to remove from the road or
footpath adjoining the Property or the ground intended to be used for such
road or footpath all building and other materials and waste whatsoever.
3.18 As soon as any of the said buildings comprised in the Development shall
have reached a height of five (5) feet above ground level to insure the
same to the full value thereof in the joint names of ST, JTC and CHRT
against loss or damage by fire in some insurance office approved by JTC and
ST and shall increase such insurance proportionately as the said buildings
approach completion and to keep the same so insured until a sub-lease shall
be granted as hereinafter provided and to pay all premiums thereof at least
seven (7) days before the expiry date of such insurance policy and to
produce to ST or JTC (if so directed by ST) or their respective agents
without demand the policy or policies of such insurance and the receipt for
each such payment and in the event the said buildings or any part thereof
are destroyed or damaged by fire then to forthwith give to ST and JTC
written notice of such destruction or damage and to forthwith cause all
monies received by virtue of any such insurance to be forthwith laid out in
rebuilding and reinstating the buildings to the satisfaction of ST and JTC
and to make up any deficiency thereof out of its own monies, but the
rebuilding and reinstatement shall in any event commence and be completed
within the period specified by ST and JTC PROVIDED ALWAYS THAT if CHRT
shall at any time fail to keep the Property insured as aforesaid ST or JTC
may without being under any obligation to do so do all things necessary to
effect or maintain such insurance and any monies expended by either ST or
JTC for that purpose shall be repayable by CHRT on demand and be recovered
forthwith from CHRT as a debt PROVIDED FURTHER THAT notwithstanding the
covenant contained in this Clause 3.18, CHRT may exercise the option not to
rebuild or reinstate the buildings subject to the following conditions:
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3.19 3.19.1 Without prejudice to Clause 4.2, CHRT shall give ST three (3)
months' prior notice in writing to prematurely terminate this
Agreement; and
3.19.2 Forthwith pay or cause to be paid to ST or if ST so directs to JTC
either party to whom CHRT acknowledges to be entitled to receive all
monies received by virtue of such insurance.
3.20 Not to sell, assign, create a trust or agency, let, sublet or underlet
charge, grant a licence or part with or share or in any way dispose of its
interest under this Agreement, or the possession or occupation of the
Property, or any part thereof or otherwise in any way dispose of the
Property or any part thereof EXCEPT THAT, subject to ST's and JTC's prior
written consent, which consent shall not be unreasonably withheld, CHRT may
mortgage or charge its interest under this Agreement by way of assignment
or debenture (as the case may be) to secure the repayment of such sum or
sums as CHRT may require for the purpose only of erecting or completing the
building or other structure to be built on the Property in accordance with
the provisions of this Agreement and the Building Agreement PROVIDED THAT
CHRT shall thereafter continue to be liable for the observance and
performance of the several stipulations herein contained until the grant of
the sub-lease as hereinafter provided.
3.21 Not to permit or suffer any person to occupy reside or make use of any
building erected on the Property before a Temporary Occupation Permit or
Certificate of Statutory Completion has been issued by or except with the
permission of the relevant Governmental and Statutory authorities.
3.22 To make reasonable provision against and be responsible for all loss,
injury and damage to any person (including loss of life) or property
including that of ST and JTC for which CHRT may be held liable arising out
of or in connection with the occupation and use of the Property and the
buildings the structures erected thereon and to indemnify ST and JTC
against all proceedings, claims, costs and expenses which ST or JTC may
incur or for which ST or JTC may be held liable as a result of any act,
neglect or default of CHRT its servants, contractors, sub-contractors, or
agents or their respective servants.
3.23 To make good and sufficient provision for the safe and efficient disposal
of all waste including but not limited to pollutants generated at the
Property to the requirements and satisfaction of ST and JTC and other
relevant Governmental and Statutory authorities PROVIDED THAT in the event
of any default by CHRT under this covenant ST or JTC may carry out such
remedial measures as they think necessary and all costs and expenses
incurred thereby shall be recoverable forthwith from CHRT as a debt.
3.24 To construct an internal drainage system to the satisfaction of ST and JTC
to ensure that all surface water collected is discharged into the public
drains and will not flow into adjoining properties.
3.25 3.25.1 To submit plans for the construction of CHRT's temporary crossing,
wash bay, silt trap and such like to ST and JTC for their approval.
3.25.2 To construct and complete the said temporary crossing, wash bay,
silt trap and such like as approved by ST and JTC within one (1)
month of the commencement of erection on the Property in accordance
with clause 3.7.
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3.25.3 To maintain the said temporary crossing, wash bay, silt trap and
such like in good condition at all times until removal.
3.25.4 To construct and complete a permanent culvert within nine (9)
months from the date hereof or any extension thereof as may be
approved by ST and JTC.
3.25.5 To remove the said temporary crossing, wash bay, silt trap and such
like within one (1) month of the completion of the permanent
culvert.
3.25.6 To reinstate, within one (1) month of the completion of the
permanent culvert, any damage to roads, roadside xxxxx and
sidetables, drains, turf, trees, services and the like to the
satisfaction of ST, JTC and the relevant governmental and statutory
authorities.
3.25.7 To reinstate, within one (1) month of the completion of the said
buildings and works, any damage to roads, roadside xxxxx and
sidetables, drains, turf, trees, services and the like to the
satisfaction of ST, JTC and the relevant governmental and statutory
authorities.
3.25.8 To construct a permanent road access from the Property to the main
road to the satisfaction of the relevant governmental and statutory
authorities.
3.25.9 Not to place any materials, equipment or any other thing on the
roadside xxxxx and sidetables and to be responsible for any damage
to the roadside xxxxx and sidetables.
3.25.10 To daily wash and clean up the stretch of road, box culverts,
drains and inlet xxxxxxxx fronting the Property free of mud and
silt, and clear away to the roadside xxxxx and sidetables until
completion of the said buildings and works;
3.25.11 To take measures to prevent the road, box culverts, drains and
inlet xxxxxxxx fronting the Property from being silted or littered
with debris, litter and the like.
3.25.12 To provide a vehicle wash bay on the Property at all times until
completion of the said buildings and works and to ensure that every
vehicle which leaves the Property shall have been washed clean of
soil and dirt.
3.25.13 To ensure that there is no spillage of any earth, soil, grease,
construction material or debris on or at any part of the
surrounding estate and public roads bordering the estate.
3.25.14 To be responsible for all damage to the footpaths, trees, road
pavement, roadside xxxxx and sidetables, box culverts and drains
fronting the Property and to repair all damage immediately to ST
and JTC's satisfaction.
3.25.15 To confine all construction activities within the boundary of the
Property.
3.25.16 To erect aesthetically pleasing and safe hoarding approved by ST
and JTC along the whole boundary of the Property before commencing
any construction activities.
3.25.17 To ensure that no unauthorized excavation works are carried out.
3.25.18 To engage a Qualified Person to certify in writing to ST and JTC
within one month after the completion of the said buildings and
works that all the reinstatement and
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construction works required under clause 3.25 and consequent
excavation works have been carried out and completed
satisfactorily.
3.25.19 To remain responsible for any remedy any defects in the said
reinstatement and construction works required under clause 3.25 and
consequent excavation works even after the Qualified Person's
certification or the return or expiry of the Deposit mentioned in
clause 3.26.
3.26 3.26.1 To place with ST a deposit of Dollars Five Thousand Only
($5,000.00) (hereinafter referred to as "THE DEPOSIT") which shall
be forfeited or from which deductions shall be made by ST or JTC in
the event of a breach of any of the provisions in clause 3.25.
3.26.2 To immediately make good any deductions from or any forfeiture of
the Deposit so that the Deposit is at all times maintained at the
sum of Dollars Five Thousand only ($5,000.00).
3.26.3 If the Deposit is by way of a cash deposit then ST shall repay the
same without interest to CHRT twelve (12) months after the
Qualified Person's certification subject to the appropriate
deductions, forfeiture or payments to ST and JTC for damages or
other sums due to a breach of any of the provisions in clause 3.25.
3.26.4 If the Deposit is by way of a banker's guarantee then ST shall
return the said guarantee to CHRT twelve (12) months after the
Qualified Person's certification subject to appropriate deductions,
forfeiture or payments to ST and JTC for damages or other sums due
to a breach of any of the provisions in clause 3.25.
3.26.5 Any forfeiture of or deductions from the Deposit shall be without
prejudice to the rights and remedies of ST and JTC contained in
this Agreement and the Lease.
3.27 At its own cost to plant and maintain trees and landscape the Property in
accordance with all the requirements of the relevant Governmental and
Statutory authorities.
3.28 At its own cost to execute such work as may be necessary to divert existing
utility services such as pipes, cables and the like (if any) to the
requirements and satisfaction of ST and JTC and other relevant Governmental
and Statutory authorities.
3.29 3.29.1 If CHRT shall at any time be found to have encroached upon any area
beyond the allocated boundaries of the Property, CHRT shall at its
own cost and expense, but without prejudice to any other right or
remedy ST or JTC may have against CHRT, immediately or within the
time specified (if any) by ST or JTC rectify and remove the
encroachment to the satisfaction of ST and JTC and pay to ST or JTC
such compensation as may be specified by ST or JTC.
3.29.2 If, however, ST or JTC in their absolute discretion permit CHRT to
regularise and retain the encroached area or any part thereof upon
such terms and conditions as may be stipulated by ST or JTC and any
other relevant Governmental and Statutory authorities, CHRT shall
pay licence fee on the encroached area with retrospective effect
from the date specified by ST, and CHRT shall also pay all survey
fees, amalgamation fees, legal fees (including solicitor and client
costs and expense), and all other costs and charges relating
thereto.
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3.30 If any damage of whatsoever nature or description shall at any time occur
or be caused to the Property or any building or structure or installation
thereon, or any part thereof, to forthwith give to ST and JTC written
notice of the damage and to remedy the damage to the satisfaction of ST
and JTC within such time as ST or JTC may specify, all at the cost of
CHRT.
3.31 Not to keep or allow to be kept any livestock or other animals at the
Property or any part thereof.
3.32 The licence fees and other taxable sums payable by CHRT under or in
connection with the sublicence herein shall be exclusive of the goods and
services tax (hereinafter referred to as "THE TAX") chargeable by any
governmental, statutory or tax authority calculated by reference to the
amount of the licence fees and any other taxable sums received or
receivable by ST from CHRT and which tax is payable by CHRT. CHRT shall
pay the tax and ST acting as the collecting agent for the governmental,
statutory or tax authority shall collect the tax from CHRT together with
the licence fees hereinbefore reserved without any deduction and in
advance without demand on the first day of each of the months of January,
April, July and October, and in the manner and within the period
prescribed in accordance with the applicable laws and regulations.
3.33 Without prejudice to the generality of Clauses 3.11 and 3.12 hereinbefore
appearing, CHRT shall not place, construct or erect or permit the placing,
construction or erection of any building, structure or equipment
whatsoever on buffers or sewer easements or other underground services (if
any) within the boundary of the Property and shall comply with the
requirements of the relevant governmental and statutory authorities
including the Urban Redevelopment Authority and the Building Control
Division of the Ministry of National Development.
3.34 Without prejudice to the generality of the rights which ST and JTC has
during the licence period in respect of the Easement referred to in VML
I/076384J of the Lease contained in the First Schedule hereto (hereinafter
referred to as "THE EASEMENT"), to allow ST, JTC, their workmen, agents,
contractors, sub-contractors and authorised lessees, tenants and licensees
and their workmen and contractors a right to enter and work upon the
Property free of charge for the purpose of connecting sewer pipelines, if
required, into the boundary of the Property at any time during the period
of the sub-licence herein PROVIDED ALWAYS THAT CHRT shall not at any time
hold ST and JTC liable for any claim, demand, action, proceeding,
inconvenience, loss, damage, costs or expenses of whatsoever kind or
description which CHRT or any other person may suffer in connection
therewith including such entry, works or pipeline or in other way
connected with the Easement.
3.35 At CHRT's own cost, at all times to comply with and observe any height
restriction(s) on buildings and structures at the Property as are or may
be imposed by Ministry of Defence, Civil Aviation Authority of Singapore,
Telecommunication Authority of Singapore, and any other governmental and
statutory authority (hereinafter referred to as "THE AUTHORITIES") which
height restrictions are subject to change at any time without prior notice
by the Authorities. Any height restriction plan(s) which may be furnished
to CHRT shall at all times be held in strict confidence and shall not be
shown, revealed or copied to or by any contractor, sub-contractor,
watchman, employee, agent, representative or any other person except with
the prior written consent of ST and JTC.
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3.36 CHRT shall at his own cost ensure that the building, boundary walls,
landscaping works fronting Woodlands Road are aesthetically designed to
ST's and JTC's satisfaction.
3.37 Subject to clause 3.12 hereinbefore appearing, to ensure that the maximum
height of any boundary wall or fence (including the anti-climb) erected by
CHRT shall not exceed two (2) metres PROVIDED THAT boundary walls or
fences (if any) shall be erected behind baphia or other xxxxxx planted on
the Property.
3.38 CHRT accepts the Property in its existing state and condition and further
accepts and confirms that ST has made no representation nor given any
assurance as to the present or future suitability of the Property or its
surrounding or adjacent lands in relation to CHRT's use, operations or
occupation at the Property.
3.39 CHRT shall observe and be bound by the provisions in the Building
Agreement and the Head Lease and perform all the covenants and conditions
on the part of the lessee contained in the Head Lease insofar as they
relate to the Development and/or the Property.
3.40 CHRT shall not do omit suffer or permit in relation to the Development
and/or the Property any act or thing which would or might cause ST to be
in breach of the Building Agreement and the Head Lease or which if done
omitted or suffered or permitted by ST would or might constitute a breach
of the covenants on the part of the lessee and the conditions contained in
the Building Agreement and the Head Lease.
3.41 CHRT shall keep ST indemnified against any actions, proceedings, claims,
damages, costs, expenses, losses or liability incurred by ST arising from
any breach, non-observance, or non-performance by CHRT of the aforesaid
provisions, covenants and conditions in the Building Agreement and the
Head Lease.
3.42 To pay all costs disbursements fees and charges legal or otherwise
including stamp and registration fees in connection with the preparation
stamping and issue of this Agreement and the sub-lease herein agreed to be
granted and any prior accompanying or future documents or deeds
supplementary collateral or in any way relating to this Agreement and the
sub-lease.
3.43 To pay all costs and fees legal or otherwise, including ST's costs as
between solicitor and client, in connection with the enforcement of the
covenants and conditions of this Agreement and the sub-lease as well as
JTC's costs if any action or omission of CHRT under this Agreement causes
JTC to take action to enforce the covenants and conditions of the Building
Agreement and the lease to be granted pursuant thereto.
4. It is hereby mutually agreed that until CHRT has performed all its
obligations herein contained ST and JTC shall possess the rights and
powers following:
4.1 The right for ST and JTC and their respective agents with or without
workmen or others at all reasonable times to enter upon the Property to
view the state and progress of the said buildings and works and the
Development and to inspect and test the materials and workmanship in
connection therewith and for any other reasonable purpose including the
construction and installation of sewers drains pipes and cables on or
leading from any adjoining or neighbouring land of JTC as may be required
by ST or JTC.
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4.2 Full right and liberty in case :
4.2.1 any part of the Development hereby agreed to be erected be not
completed and fit for immediate occupation within the period
hereinbefore limited (time in this respect shall be of the essence
of the contract) and in accordance in every way with the
stipulations hereinbefore contained; or
4.2.2 CHRT shall in any other way fail to perform and observe any of the
stipulations on its part herein contained; or
4.2.3 if any writ of seizure and sale or its equivalent made in respect
of the Property or any structure thereon shall be enforced without
the written consent of ST and JTC having first been obtained by
CHRT or by the person in whose favour the writ of seizure and sale
or its equivalent shall have been made,
to re-enter upon and take possession of the Property and all buildings,
structures, fixtures, plant material and effects whatsoever thereon with
power to hold and dispose thereof as if this Agreement had not been
entered into and without making to CHRT any compensation of any kind, any
refund of any portion of the licence fee or any other sums or allowance
for the same and this Agreement shall thereupon determine but without
prejudice to any right of action or other remedy of ST for the recovery of
any licence fee or monies due to it from CHRT or in respect of any breach
of this Agreement PROVIDED ALWAYS THAT if the Property has been assigned
by way of mortgage the provisions of this clause shall not take effect
until ST or JTC has served upon the mortgagee written notice specifying
the breach, and the mortgagee has failed to remedy such breach.
4.3 PROVIDED nevertheless that notwithstanding any such default as aforesaid
in completing the said buildings and works ST may in its discretion give
notice in writing to CHRT of its intention not to enforce the stipulations
herein contained and may in its absolute discretion fix any extended
period for the completion of the Development subject to such terms and
conditions as ST and JTC may impose in substitution for the said period of
three (3) years less one (1) day hereby fixed for such completion and
thereupon the obligations hereunder of CHRT to complete the said works and
to accept a sub-lease hereinafter mentioned shall be taken to refer to
such substituted period.
4.4 Without prejudice to the generality of Clause 4.2 hereof full right and
liberty of ST in the event that CHRT has failed to either:
4.4.1 fulfill the investment criteria as stipulated in Clause 6; or
4.4.2 develop the Property to the gross plot ratio specified in
accordance with Clause 3.7,
with full and absolute discretion to ST to either:
(i) re-enter upon and take possession of the Property or any part
thereof and all buildings, structures, fixtures, plant,
material and effects whatsoever thereon with power to hold and
dispose thereof as if this Agreement had not been entered into
and without making to CHRT any compensation of any kind, any
refund of any portion of the licence fee or any other sums or
allowance for the same and this Agreement shall thereupon
determine but without prejudice to any right of action or
other remedy of ST or recovery of
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any licence fee or monies due to ST from CHRT or in respect of
any breach of this Agreement, or
(ii) reduce the term of sub-lease to such a lesser term that JTC
may grant to ST pursuant to the terms of the Building
Agreement (less than (1) day) in which event CHRT shall
execute such documents as ST shall deem necessary and in
connection therewith, pay all costs disbursements fees and
charges legal or otherwise as provided in Clause 3.43.
PROVIDED that if the Property has been assigned by way of mortgage with
the consent of ST and JTC, the provisions of this sub-clause 4.4 shall not
take effect until ST or JTC has served upon the mortgagee notice in
writing specifying the breach and the mortgagee has failed to remedy such
breach.
5. CHRT hereby agrees that if any failure on its part to observe or perform
any of its covenants contained in this Agreement results in the failure of
ST to comply with its obligations under the Building Agreement and/or the
Head Lease and such failure entitles JTC to re-enter upon and take
possession of the Property and JTC exercises such right, then this
Agreement shall forthwith terminate without ST making to CHRT any
compensation or allowance for the same and without prejudice to any right
of action or other remedy of ST for the recovery of any rental or monies
due to it from CHRT or in respect of any breach of this Agreement.
6. If the Development shall have been completely finished to the satisfaction
of and in accordance in each and every way of the plans approved by ST and
JTC and the relevant Government Building Authorities (to be evidenced by
their certificates in writing to that effect) within the Sub-Licence
Period or of such extended period (if any) as aforesaid and if CHRT shall
have performed and observed all the stipulations herein on its part
contained other than such as may have been waived as aforesaid and if
there shall have been a minimum investment by CHRT of $900.00 per square
metre of the gross floor area of the buildings erected on the Property on
buildings and civil works, (of which at least 1.0% of this investment or a
minimum $75,000.00, whichever is lower, must be on landscaping with
particular emphasis on the landscaping at the Property's boundaries facing
Woodlands Road) and a minimum investment of $800.00 per square metre of
the minimum gross floor area on plant and machinery within the Sub-Licence
Period (due proof of such investment to be produced by CHRT to the
satisfaction of ST and JTC on or before 15 November 2003 and if JTC has
granted to ST a lease of the Property and premises together with the
Development for the term of thirty (30) years from 16 May 2000 then ST
shall grant and CHRT shall accept and execute a counter part of one good
and sufficient sub-lease of the Property and premises to CHRT for the term
of thirty (30) years from 16 May 2000 less one (1) day at the rent and in
the form containing the reservation exceptions covenants conditions and
provisions set forth in the SECOND SCHEDULE hereto with such modifications
as circumstances may render necessary and such other covenants conditions
or stipulations to be performed by CHRT governing or regulating the use of
the Property as ST and JTC thinks fit with a view to preserving the value
thereof or protecting the interests of CHRT, its licensees or occupiers of
land or premises adjacent to the Property from any dangerous or obnoxious
or otherwise harmful activities which may be carried out by CHRT whether
or not such activities are incidental to CHRT's trade PROVIDED THAT until
such sub-lease is executed CHRT shall be deemed to be the sub-
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lessee of the Property as though a sub-lease has been executed at the same
rent and subject to the covenants and conditions contained in the SECOND
SCHEDULE hereto so far as the same are applicable. In the event that ST
grants to CHRT the said term for thirty (30) years less one (1) day as
aforesaid, CHRT shall be permitted to remain on the Property on the day
following the expiry of the Sub-Licence Period as a licensee, free of
payment.
7. CHRT may, at any time during the Sub-Licence Period and any extensions
thereof granted under Clause 4.3 and subject to the prior written consent
and the conditions of consent of ST and JTC terminate this Agreement or
surrender part of the Property PROVIDED ALWAYS THAT such termination or
surrender shall be without prejudice to any right or remedy which may have
or will accrue to ST prior to such termination or surrender AND PROVIDED
FURTHER THAT CHRT shall in addition to the licence fee (which at the
discretion of ST may be apportioned for the period commencing from the
Commencement Date up to the date of delivery of vacant possession of the
Property or part thereof to ST) survey fees, property tax and other
charges specified herein forthwith pay to ST as liquidated damages a sum
made up of firstly an amount equivalent to three (3) months' licence fee,
secondly an amount equivalent to one (1) additional year's property tax
and thirdly an amount of $500.00 being administrative costs or such other
sum as may be determined from time to time by ST and JTC, AND PROVIDED
FURTHER THAT before the delivery of vacant possession as aforesaid if ST
and JTC shall so desire CHRT shall at the cost and expense of CHRT
properly demolish and remove such building, structure, fixture, fitting or
thing as may be stipulated in writing by ST and JTC as well as properly
render the Property or part thereof as the case may be to its original
state and condition and licence fee and property tax shall continue to be
payable until the same has been completed to the satisfaction of ST and
JTC PROVIDED ALSO THAT CHRT shall, without prejudice to Clause 3.7 and
Clause 3.33, ensure that the Property and any other remaining land
occupied by CHRT within Woodlands Industrial Park D comply with the
setback requirements and other planning requirements and do not exceed the
average maximum gross plot ratio of 1.4 after the termination or
surrender.
8. CHRT also hereby agrees as follows:
8.1 ST, JTC and CHRT shall accept and be bound by the results of the
Environmental Baseline Study (hereinafter referred to as "THE FIRST
BASELINE STUDY") dated April 2000 and conducted by Xxxxxxxxxx Xxxxxx to
determine the presence of minerals and hydrocarbons on and beneath the
Property.
8.2 In the event of re-entry by ST and JTC under Clause 4.2 or Clause 4.4 or
before CHRT delivers possession under Clause 7 of this Agreement, (herein
referred to as "THE SAID EVENT") CHRT shall at his own cost:
8.2.1 remove all fixtures, fittings and equipment as may be required by
ST and JTC;
8.2.2 engage a reputable independent consultant to conduct another
Environmental Baseline Study (hereinafter referred to as "THE
SUBSEQUENT STUDY") to determine the level of minerals and
hydrocarbons on and beneath the Property and submit a written copy
of the Subsequent Study to ST and JTC;
8.2.3 if the results of the Subsequent Study indicate that:
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(i) the level of minerals and hydrocarbons present at the time of
the Subsequent Study exceeds that of the First Baseline Study;
or
(ii) the level of minerals and hydrocarbons is equal to or exceeds
the Intervention Values of the Dutch Standards then prevailing
(hereinafter referred to as "THE DUTCH STANDARD")
whichever is less stringent (hereinafter referred to as "THE
CONTAMINATION"), then CHRT shall at his own cost and within a
reasonable time period (for these purposes, "REASONABLE TIME
PERIOD" shall mean the length of time taken for decontamination
using the then prevailing best practical technology which is
commercially available) properly carry out all works necessary to
decontaminate the Property to the state and condition existing at
the time of the First Baseline Study or the prevailing Dutch
Standard, whichever is less stringent, and to the satisfaction of
the ST, JTC and the relevant governmental and statutory authorities
UNLESS CHRT proves to the reasonable satisfaction of ST and JTC
that the contamination is caused solely by:
(i) natural occurrence of minerals and hydrocarbons; or
(ii) third parties,
and is not in any way caused or contributed by CHRT's acts or
omissions or those of its agents and PROVIDED THAT CHRT shall at
all times, whether prior to or after the said Event promptly notify
ST and JTC in writing after CHRT has notice of contamination
entering onto or beneath the Property. Further, the parties hereto
may, but shall not be obliged to, remediate or cause to be
remediated any contamination solely caused by third parties or by
natural occurrence to the Property and neither party shall hold the
other liable in any way for the same. However, the parties hereto
shall at all times comply with the requirements of the prevailing
environmental laws at their own costs.
8.2.4 reinstate the Property to its original state and condition, fair
wear and tear excepted, to the satisfaction of ST and JTC
(hereinafter referred to as "THE DECONTAMINATION AND REINSTATEMENT
WORKS").
8.2.5 During and for as long as CHRT shall after the said Event occupy
and continue to occupy the Property or any part thereof by itself
or its agents, servants, contractors or subcontractors or any other
permitted persons for purposes of or in connection with the
decontamination and reinstatement works or any thereof, CHRT shall
be and shall be deemed to be the occupier of the Property and every
part thereof for purposes of liabilities arising or which may arise
under or by virtue of occupiers' liability and CHRT shall indemnify
ST and JTC in relation to all such liabilities.
8.2.6 If CHRT shall for any reason fail to carry out the decontamination
and reinstatement works or to observe or perform its obligations
under and in accordance with this Clause 8 or any part thereof, ST
and JTC may upon re-entry or delivery of possession as the case may
be, and without prejudice to any other right or remedy ST and JTC
may have in law, appoint or cause to be appointed a reputable
independent consultant to carry out or cause to be carried out the
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decontamination and reinstatement works or such part thereof as ST
and JTC may deem fit, and all costs and expenses incurred thereby
shall be recoverable by ST and JTC from CHRT as a debt.
8.2.7 In addition ST and JTC shall be entitled to further recover from
CHRT and CHRT shall pay all licence fees, tax, property tax and
other amounts which ST and JTC would have been entitled to receive
from CHRT had the period within which the decontamination and
reinstatement works are effected by CHRT or ST and JTC been added
to the period of the licence under this Agreement.
8.2.8 CHRT shall not cause or suffer to be caused or permit entry from
the Property onto or beneath any adjoining or neighbouring premises
("XXX XXXXXXXXX XXXX") and minerals or hydrocarbons to a level
which is in contravention of the prevailing environmental laws, or,
in the absence of such laws, the prevailing Dutch Standard. If CHRT
fails to comply with this clause, CHRT shall properly carry out all
works necessary to decontaminate the Adjoining Land to the state
and condition in compliance with such prevailing laws or Dutch
Standard PROVIDED THAT:
(i) ST and JTC shall first prove the contamination of the
Adjoining Land; and
(ii) CHRT shall not be liable for the contamination of the
Adjoining Land if CHRT had not caused or contributed in any
way to the same by its acts or omissions.
9. ST hereby covenants that:
9.1 it has obtained the written consent of JTC to the sub-licence and
sub-lease herein;
9.2 ST shall pay the rent and all other monies and shall perform the lessee's
covenants and conditions contained in the Head Lease (save for such
covenants as shall be performed by CHRT pursuant to the provisions of
Clause 3.42 hereof);
9.3 ST shall take all reasonable steps to obtain the consent of JTC whenever
CHRT makes any request in connection with the Property that requires the
approval of JTC under this Agreement or the Building Agreement;
9.4 ST will take all reasonable steps to enforce promptly the obligations
undertaken by JTC under the Head Lease in the event of a breach by JTC of
any of its obligations under the Head Lease and after having received
notice in writing of such breach from CHRT.
10.1 All notices, demands or other communications required or permitted to be
given or made hereunder shall be in writing and delivered personally or
sent by prepaid post (by airmail if to or from an address outside
Singapore) with recorded delivery or facsimile addressed to the intended
recipient thereof at its address set out below or at its last known
address or at its facsimile number set out below (or to such other address
or facsimile number as any party may from time to time duly notify in
writing to the other) and marked to the attention of the person named
below in respect of the intended recipient. Any such notice, demand or
communication shall be deemed to have been duly served (if given or made
by facsimile) immediately or (if given or made by letter) 24 hours after
posting or (if made or given to or from an address outside Singapore) 72
hours after posting and in proving the same it shall be sufficient to show
that the envelope containing the same was duly
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addressed, stamped and posted. The initial addresses and facsimile numbers
of the parties for the purposes of this Agreement are:
ST : SINGAPORE TECHNOLOGIES PTE LTD
00X Xxxxxxx Xxxx
#00-00 Tower 2, The Atrium @ Xxxxxxx
Xxxxxxxxx 000000
Attention: Director, Finance
Facsimile No:
CHRT : CHARTERED SEMICONDUCTOR MANUFACTURING LTD
00 Xxxxxxxxx Xxxxxxxxxx Xxxx X Xxxxxx 0
Xxxxxxxxx 000000
Attention : VP, Facilities
Facsimile No : 63604917
C.C. : General Counsel
Facsimile No : 63604970
10.2 The illegality, invalidity or unenforceability of any provision of this
Agreement under the law of any jurisdiction shall not affect its legality,
validity or enforceability under the law of any other jurisdiction nor the
legality, validity or enforceability of any other provision.
11.1 This Agreement shall be construed and governed by the laws of Singapore.
11.2 Any dispute arising out of or in connection with this Agreement, including
any question regarding its existence, validity or termination, shall be
referred to and finally resolved by arbitration in Singapore in accordance
with the Arbitration Rules of the Singapore International Arbitration
Centre ("SIAC RULES") for the time being in force which rules are deemed
to be incorporated by reference into this clause. The law of the
arbitration shall be the International Arbitration Act, Chapter 143A. The
tribunal shall consist of one (1) arbitrator to be appointed by the
Chairman of Singapore International Arbitration Centre and the language of
the arbitration shall be English.
11.3 Nothing shall affect the right to serve process in any manner permitted by
law.
12. A person who is not a party to this Agreement shall have no rights under
the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore to
enforce any of its terms and conditions.
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THE FIRST SCHEDULE ABOVE REFERRED TO
All that piece of land known as Private Lot A12787(k) at Woodlands Wafer Fab
Park forming part of Government Survey Xxx 0000X Xxxxx Xx.00 Xxxxxxxxx and
situated in the Republic of Singapore as shown on the plan annexed to the
Building Agreement and estimated to contain an area of 820 square metres or
thereabouts, subject to Government resurvey together with all buildings erected
or to be erected thereon known as No. 00 Xxxxxxxxx Xxxxxxxxxx Xxxx X Xxxxxx 0
Xxxxxxxxx 000000
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IN WITNESS WHEREOF the parties hereto have hereunto set their respective hands
or seals the day and year first above written.
SIGNED by Tan Xx Xxxxx )
)
for and on behalf of ) /s/ Tan Xx Xxxxx
)
SINGAPORE TECHNOLOGIES PTE LTD )
)
in the presence of: )
/s/ Cheong Xxx Xxx
-------------------------
Witness's signature
Name: Cheong Xxx Xxx
Address:
Occupation: Legal Counsel
SIGNED by Chia Song Hwee )
)
for and on behalf of CHARTERED ) /s/ Chia Song Hwee
)
SEMICONDUCTOR MANUFACTURING LTD )
)
in the presence of: )
/s/ Looi Xxx Xxx
-------------------------
Witness's signature
Name: Looi Xxx Xxx
Address: 00 Xxxxxxxxx Xxxxxxxxxx Xxxx X, Xxxxxx 0, Xxxxxxxxx 000000
Occupation: General Counsel & Company Secretary
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