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EXHIBIT 10.22
DATED THIS 11TH DAY OF FEBRUARY 1997
BETWEEN
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
(THE BORROWER)
AND
POST OFFICE SAVINGS BANK OF SINGAPORE
(THE LENDER)
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LOAN AGREEMENT
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(SEMCON.FA2)
XXXXXXX XXXX & PARTNERS
SINGAPORE
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CONTENTS
CLAUSE HEADING PAGE
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1 DEFINITIONS ........................................................... 1
2 FACILITY .............................................................. 4
3 PURPOSES OF THE FACILITY .............................................. 4
4 CONDITIONS PRECEDENT TO DISBURSEMENT
OF THE FACILITY ....................................................... 4
5 DRAWING UNDER THE FACILITY ............................................ 4
6 CANCELLATION .......................................................... 5
7 INTEREST .............................................................. 5
8 REPAYMENT ............................................................. 6
9 PREPAYMENT ............................................................ 6
10 PAYMENTS .............................................................. 6
11 TAXES ................................................................. 7
12 CHANGE IN CIRCUMSTANCES ............................................... 8
13 SET-OFF ............................................................... 8
14 REPRESENTATIONS AND WARRANTIES ........................................ 9
15 AFFIRMATIVE UNDERTAKINGS .............................................. 10
16 NEGATIVE UNDERTAKINGS ................................................. 11
17 EVENTS OF DEFAULT ..................................................... 12
18 INDEMNITY ............................................................. 14
19 CURRENCY INDEMNITY .................................................... 14
20 WAIVER NOT TO PREJUDICE RIGHT OF THE LENDER ........................... 15
21 INDULGENCE OF THE LENDER NOT TO
DISCHARGE THE BORROWER ................................................ 15
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22 FEES AND EXPENSES ..................................................... 16
23 DEFAULT IN PAYMENT OF EXPENSES ........................................ 16
24 NOTICES ............................................................... 16
25 SUCCESSORS AND ASSIGNS ................................................ 17
26 SEVERABILITY .......................................................... 17
27 DISCLOSURE ............................................................ 17
28 CALCULATION AND EVIDENCE .............................................. 17
29 GOVERNING LAW AND SUBMISSION TO
JURISDICTION .......................................................... 17
SCHEDULE 1................................................................... 18
SCHEDULE 2................................................................... 19
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THIS AGREEMENT is made the 11th day of February, One thousand nine
hundred and ninety-seven (1997) Between:-
1. CHARTERED SEMICONDUCTOR MANUFACTURING LIMITED (Company
Registration No. 198703584), a company incorporated in Singapore and having its
registered office at 00 Xxxxxxxxx Xxxxxxxxxx Xxxx X Xxxxxx 0 Xxxxxxxxx 000000
(hereinafter called the "Borrower") of the one part; and
2. POST OFFICE SAVINGS BANK OF SINGAPORE, a body corporate
incorporated in Singapore under the Post Office Savings Bank of Singapore Act
and having its registered office at 00 Xxxx Xxxxx Xxxx XXXX Xxxxxx, Xxxxxxxxx
000000 (hereinafter called the "Lender") of the other part.
WHEREAS at the request of the Borrower, the Lender has agreed to make
available to the Borrower a term loan facility of not exceeding the aggregate
principal amount of DOLLARS FIFTY MILLION ($50,000,000.00) subject to the terms
and conditions hereinafter appearing.
NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:-
1. DEFINITIONS
1.1 In this Agreement and the Schedules, except to the extent that the
context requires otherwise:-
"AGREEMENT" or "THIS AGREEMENT" means this Agreement and all amendments
and variations thereof from time to time;
"AVAILABILITY PERIOD" means, subject to the discretion of the Lender to
extend the period at the request of the Borrower, the period commencing
on the date of this Agreement and ending on 15 February 1997;
"BORROWER" includes its successors;
"BUSINESS DAY" means any day (excluding Saturdays, Sundays and public
holidays) on which banks in Singapore are open for business;
"DEFAULT INTEREST RATE" means the rate of 4% per annum over the
Lender's posted board rate for deposits placed with the Lender for
amounts up to Dollars One Hundred Thousand ($100,000.00) or such other
amount as the Lender may from time to time determine;
"DOLLAR", "DOLLARS" and the symbol "$" mean the lawful currency for the
time being of Singapore;
"DRAWING" means the Drawing made or to be made under the Facility in
terms of Clause 5;
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"EVENTS OF DEFAULT" means the events mentioned in Clause 17.1; and
"EVENT OF DEFAULT" means any one of them;
"FACILITY" means the term loan facility granted by the Lender to the
Borrower under this Agreement;
"INTEREST PAYMENT DATE" means the last day of each Interest Period;
"INTEREST PERIOD" means each successive period of six (6) months
determined as follows:-
(i) the first Interest Period shall commence on the date on which
the Drawing is made from the Facility and end on the date
falling six (6) months immediately following;
(ii) each subsequent Interest Period shall commence forthwith upon
the expiry of the previous Interest Period and end on the date
falling six (6) months immediately following;
(iii) an Interest Period which would otherwise end on a day which is
not a Business Day shall be extended to the next day which is
a Business Day; and
(iv) an Interest Period which would otherwise end after the
Repayment Date shall be abridged to end on the Repayment Date;
"INTEREST RATE" has the meaning ascribed to it in Clause 7.1;
"LENDER" includes its successors and assigns;
"MARGIN" means one percent (1%);
"POTENTIAL EVENT OF DEFAULT" means any condition act omission or event
which with the giving of notice, lapse of time and/or determination of
materiality or other condition would become an Event of Default;
"REFERENCE BANKS" mean The Development Bank of Singapore Limited,
United Overseas Bank Limited, Overseas Union Bank Limited and
Oversea-Chinese Banking Corporation Limited;
"RELATED CORPORATIONS" means Singapore Technologies Pte Ltd (including
its successors and assigns) and the Borrower's subsidiaries and for the
purposes of this Agreement, shall not mean a related corporation as
defined under Section 4 of the Companies Act (Cap. 50); and "RELATED
CORPORATION" means any or each (as the context way require) of them;
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"REPAYMENT DATE" means the date immediately following five (5) years
from the date of first disbursement of the Facility or such later date
permitted by the Lender;
"SIBOR" means, in respect of each Interest Period the arithmetic mean
(rounded if necessary to the nearest 1/16 of 1%) of the respective
rates quoted by the Reference Banks to the Lender at its request as the
rates offered to banks in the Singapore inter-bank market for deposits
in Singapore Dollars for the required amount for such Interest Period
at or about 11:00 am on the second Business Day before the commencement
of such Interest Period, but if any of the Reference Banks cannot quote
a rate as aforesaid, SIBOR shall be treated as not capable of being
determined;
"SUBSTITUTED BASIS" means the alternative basis for charging interest
as mentioned in Clause 7.2;
"TOTAL INDEBTEDNESS" means at any time, all amounts (whether of
principal, interest, fees or otherwise) at that time owing or payable
(whether contingently or otherwise) from the Borrower to the Lender
under the provisions of this Agreement;
1.2 Any reference in this Agreement to:-
1.2.1 "borrowed moneys" means (a) moneys borrowed or raised
(including hire under financial leases) and interest thereon,
(b) any liability under any bond, note, guarantee, indemnity
or other security or under acceptance credit facilities, (c)
any liability in respect of the acquisition cost of assets or
services to the extent payable after the time of acquisition
or possession thereof which upon default in payment thereof
would materially or adversely affect the financial condition
of the Borrower or its Related Corporations, and (d) any
guarantee or other assurance against financial loss in respect
of such moneys borrowed or raised, interest or liability;
1.2.2 "certified copy" means a copy certified by an authorised
signatory as being a true, complete and up to date copy of an
original then currently in full force and effect;
1.2.3 a "Clause", "Recital" or "Schedule" is to be construed as a
reference to a clause, recital or schedule of this Agreement
unless the context requires otherwise;
1.2.4 an "encumbrance" includes any mortgage, charge (whether fixed
or floating), pledge, lien, hypothec, hypothecation,
assignment, fiduciary assignment, fiduciary transfer, power of
attorney to establish hypothec, power of attorney to sell,
security interest or any other type of
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preferential agreement or arrangement having substantially the
same economic effect (including sale and repurchase
agreements, title retention or flawed asset arrangements);
1.2.5 "indebtedness" shall be construed so as to include any
obligation (whether incurred as principal or as surety) for
the payment or repayment of money, whether present or future,
actual or contingent;
1.2.6 a "person" shall be construed as a reference to any person,
firm, company, corporation, government, state or agency of a
state or any association or partnership (whether or not having
separate legal personality) of two or more of the foregoing;
1.2.7 a "subsidiary" shall mean a subsidiary as defined in the
Companies Act (Chapter 50, Singapore Statutes);
1.2.8 "tax" shall be construed so as to include any present or
future tax, levy, impost, duty or other charge of a similar
nature (including, without limitation, any penalty or interest
payable in connection with any failure to pay or any delay in
paying any of the same) imposed, levied, collected, withheld
or assessed by any agency of any state;
1.2.9 the "winding-up", "dissolution" or "judicial management" of a
company, the "bankruptcy" of an individual, the appointment of
a receiver and/or manager, liquidator, administrator, judicial
manager or trustee shall be construed so as to include any
equivalent or analogous proceedings or appointment under the
law of the jurisdiction in which such company is incorporated
or such individual is domiciled or any jurisdiction in which
such company or such individual carries on business or has
assets;
1.2.10 a "year", "month" or "day" shall be construed as a reference
to a calendar year, a calendar month or a calendar day;
1.2.11 any statute or other legislation, subsidiary legislation or
rules shall be read as referring to such statute or other
legislation, subsidiary legislation or rules as amended or
re-enacted from time to time; and
1.2.12 a time of day is a reference to Singapore time unless provided
otherwise.
1.3 The headings in this Agreement are inserted for convenience only and
shall be ignored in construing this Agreement.
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1.4 Words denoting the singular number shall also include the plural and
vice versa and words denoting the masculine gender shall also include
the feminine gender and neuter gender and references to any gender
shall include any other gender.
2. FACILITY
Subject to the terms and conditions herein contained, the Lender shall
make available to the Borrower a term loan facility ("THE FACILITY") of DOLLARS
FIFTY MILLION ($50,000,000.00) Provided that if any portion of the Facility is
cancelled by the Borrower or the Lender pursuant to the provisions of this
Agreement or by mutual agreement, the limit of the Facility shall be reduced
accordingly.
3. PURPOSES OF THE FACILITY
Subject to the term and conditions of this Agreement, the Borrower
shall utilise the Facility for the purpose of the Borrower's working capital
requirements or any other business purposes.
4. CONDITIONS PRECEDENT TO DISBURSEMENT OF THE FACILITY
4.1 Subject to the Lender's discretion otherwise, the Facility will become
available to the Borrower only after the Lender has received from the
Borrower all the documents, payments and evidence listed in Schedule 1
and each is in form and substance satisfactory to the Lender.
4.2 Subject to Clause 4.1, the following conditions shall also have to be
satisfied before the Facility is made available to the Borrower:-
4.2.1 that all acts, conditions and things required to be done and
performed under Schedule 1 shall have been done and performed
and have happened in due and strict compliance with all
applicable laws; and
4.2.2 that there is no material adverse change in the financial
condition, operating environment, management of the Borrower
or any other conditions which in the reasonable opinion of the
Lender will materially affect the ability of the Borrower to
perform its obligations under this Agreement.
5. DRAWING UNDER THE FACILITY
5.1 Subject to the Lender's discretion to permit otherwise, the Borrower
may on any Business Day during the Availability Period applicable to
the Facility request for one Drawing for the full amount granted under
the Facility by giving to the Lender written notice in substantially
the form provided in Schedule 2 not later than three (3) Business Days
prior to the intended date of drawdown, Provided
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Always that on both the date of such notice and on the date of the
proposed drawdown:-
5.1.1 no Event of Default has occurred which remains unwaived and no
Potential Event of Default has occurred;
5.1.2 the representations and warranties contained in Clause 14 of
this Agreement are correct and accurate in all material
respects.
5.2 Once having been given by the Borrower, the notice shall be irrevocable
and the Borrower shall be bound to borrow and draw in accordance with
the notice. In addition to the other remedies of the Lender hereunder,
the Borrower shall have full liability and accountability for any costs
incurred by the Lender resulting from the failure of the Borrower to
effect the Drawing in full for any reason whatsoever or a failure to
satisfy the conditions of the Drawing, including but not limited to
losses from re-employment of funds obtained for the Drawing at rates
lower than the cost of such funds or any expense incurred by the Lender
in liquidating such funds as such Lender may certify.
5.3 Any part of the Facility left undrawn shall be deemed to be cancelled
by the Borrower on that date and shall not subsequently be available to
the Borrower.
6. CANCELLATION
6.1 The Borrower may, at any time during the Availability Period and upon
payment of the cancellation fee stipulated in Clause 6.5, cancel the
whole or any part of the Facility.
6.2 In the event any part of the Facility is deemed cancelled in terms of
Clause 5.3, the Borrower shall forthwith pay the cancellation fee
stipulated in Clause 6.5.
6.3 Upon such cancellation becoming effective the Facility shall be reduced
by the amount of such cancellation.
6.4 No part of the Facility which has been cancelled may be redrawn or
reborrowed, unless the Lender permits otherwise.
6.5 A cancellation fee equivalent to zero point five per cent (0.5%) flat
shall be payable by the Borrower to the Lender on any amount of the
Facility cancelled or deemed to be cancelled by the Borrower.
7. INTEREST AND DEFAULT INTEREST
7.1 The Borrower shall pay to the Lender on each Interest Payment Date
interest on the Facility at the rate of the aggregate of the Margin and
the SIBOR ("the Interest Rate") for each Interest Period, such interest
shall accrue from day to day and
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shall be calculated on the principal amount of the Facility for the
time being owing and unpaid and compounded semi-annually.
7.2 If, in relation to any Interest Period, the Lender reasonably
determines that (a) SIBOR is not capable of being determined or (b) by
reason of circumstances affecting the Singapore inter-bank market
generally, adequate and fair means do not exist for ascertaining SIBOR
for that relevant Interest Period, the Lender shall notify the Borrower
of the same. The Borrower and the Lender shall then negotiate in good
faith with a view to agreeing to an alternative basis (the "Substitute
Basis", which expression shall mean such alternative basis agreed by
the Borrower and the Lender) for calculating the interest payable on
the Facility for that Interest Period.
7.3 In the event of failure by the Borrower to make payment on the due date
of any sum due under this Agreement (whether by way of a repayment of
the Facility or payment of any principal, interest or fee or otherwise
howsoever) then subject always to and without prejudice to the other
rights and remedies of the Lender contained in this Agreement, the
Borrower shall (to the fullest extent permitted by applicable law) pay
to the Lender interest at the Default Interest Rate on that overdue sum
from the date of default up to the date of actual payment (as well
after as before judgment), such interest to be calculated with monthly
rests and shall be payable on the last day of each month.
7.4 Interest payable under this Agreement shall be computed on the basis of
a three hundred and sixty-five (365)-day year and on actual days
elapsed.
7.5 No part of any payment made by the Company shall be treated as a
repayment of principal until after interest due or deemed to be due or
accrued has been paid.
7.6 The Borrower hereby covenants to pay to the Lender all interest payable
by the Borrower to the Lender as provided in any provisions of this
Agreement.
8. REPAYMENT
The Borrower hereby covenants to repay to the Lender the Facility in
one lump sum without demand on the Repayment Date.
9. PREPAYMENT
9.1 The Borrower may upon giving not less than thirty-one (31) days prior
notice in writing to the Lender and upon paying any prepayment fee
payable in accordance with Clause 9.2 together with all interest and
other moneys accrued in respect of the amount to be prepaid up to the
date of prepayment prepay in advance on an Interest Payment Date the
whole or any part of the Drawing made under the Facility in accordance
with the provisions of this Clause Provided that any partial prepayment
shall be in an amount of not less than Dollars Five Million
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($5,000,000.00) and equal to integral multiples of Dollars One Million
($1,000,000.00).
9.2 A prepayment premium computed at the rate of zero point five per cent
(0.5%) flat of each amount prepaid shall be payable by the Borrower to
the Lender.
9.3 Notice of intended prepayment once having been given by the Borrower
shall be irrevocable and it shall be obligatory on the Borrower to make
the prepayment in accordance with the notice, failing which interest at
the Default Interest Rate shall be payable thereon.
9.4 No partial prepayment of any sums under the Facility shall relieve the
Borrower of its obligations under this Agreement except to the extent
of the amount prepaid.
9.5 The Borrower shall not repay or prepay to the Leader the Drawing
otherwise than in accordance with the provisions of this Agreement and
each amount prepaid shall be cancelled and may not be redrawn or
reborrowed.
10. PAYMENTS
10.1 All payments by the Borrower to the Lender of principal, interest and
all other sums due and payable by the Borrower to the Lender hereunder
shall be made in Dollars, not later than 11:00 a.m. on due day in
immediately available and free transferable funds to such account of
the Lender in Singapore as the Lender may from time to time designate
or in such other manner as the Lender may reasonably direct.
10.2 If any sum shall become due for payment hereunder on a day which is not
a Business Day, such payment must be made on the next succeeding
Business Day, unless that succeeding Business Day falls within the next
calendar month, in which case such payment must be made on the previous
Business Day, and interest shall be adjusted accordingly.
10.3 All payments made to the Lender shall be applied first against fees and
expenses payable hereunder, then against interest due on amounts in
default, if any, then against interest due on principal moneys
outstanding under the Facility, and thereafter against the principal
moneys and all other moneys outstanding under this Agreement.
11. TAXES
11.1 All sums payable by the Borrower under this Agreement shall be paid (i)
free of any restriction or condition, (ii) free and clear of and
(except to the extent required by law) without any deduction or
withholding on account of any tax and (iii) without deduction or
withholding (except to the extent required by law) on
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account of any other amount, whether by way of set-off counterclaim or
otherwise.
11.2 If (i) the Borrower or any other person making payment on behalf
of the Borrower is required by law to make any deduction or withholding
on account of any such tax or other amount from any sum paid or payable
by the Borrower to the Lender under this Agreement or (ii) the Lender
(or any person on its behalf) is required by law to make any deduction
or withholding from, or (except on account of tax on the overall net
income of the Lender) any payment on or calculated by reference to the
amount of, any sum received or receivable by the Lender under this
Agreement:-
11.2.1 the Borrower shall notify the Lender of any such requirement
or any change in any such requirement as soon as the Borrower
becomes aware of it;
11.2.2 the Borrower shall pay any such tax or other amount before the
date on which the penalties attach thereto, such payment to be
made, if the liability to pay is imposed on the Borrower, for
its account, or otherwise on behalf of and in the name of the
Lender;
11.2.3 the sums payable by the Borrower shall (except, in the case of
any such payment, to the extent that its amount is not
ascertainable when that sum is paid) be increased to the
extent necessary to ensure that, after the making of that
deduction, withholding or payment, the Lender receives on the
due date and retains (free from the liability in respect of
any such deduction, withholding or payment) a not sum equal to
what it would have received and so retained had no such
deduction, withholding or payment been required or made;
11.2.4 within thirty (30) days after paying any sum from which it is
required by law to make any deduction or withholding, and
within thirty (30) days after the due date of payment of any
tax or the amount which it is required by Clause 11.2.2 above
to pay, the Borrower shall deliver to the Lender evidence
reasonably satisfactory to the Lender of such deduction,
withholding or payment and of the remittance thereof to the
relevant taxing or other authority.
Provided that in any such event the Borrower shall be entitled to
prepay the Drawing in accordance with this Agreement, but without any premium,
together with accrued interest thereon and any other sum then due to the Lender
under this Agreement.
11.3 If directly as a consequence of any such deduction or withholding by
the Borrower (as referred to in the first paragraph of Clause 11.2) and
payment by the Borrower to the relevant taxing or other authority, the
Lender shall receive or be granted a credit against any taxes payable
by it in relation solely to the sum from
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which such deduction or withholding was made, the Lender shall (to the
extent to which the Lender may do so without prejudicing the retention
of the amount of such credit and without prejudice to the rights of the
Lender to obtain any other relief or allowance available to it and
generally to organise its tax affairs in such manner as it sees fit),
reimburse the Borrower with such amount as the Lender shall certify to
be the proportion of such credit as will leave the Lender (after such
reimbursement) in no worse position than that in which it would have
been had there been no such deduction or withholding from the payment
by the Borrower as aforesaid and such reimbursement shall be made as
soon as practicable after the Lender has received the benefit of such
credit. Nothing in Clause 11.3 shall entitle the Borrower to access to
the Lender's tax records or to its book of account.
11.4 Without prejudice to the generality of the foregoing, in the event that
any goods and services tax or any other taxes levies or charges
whatsoever now or hereafter required by law to be paid on or in respect
of any sums payable to the Lender or any other matters under or
relating to this Agreement, the same shall (except to the extent
prohibited by law) be borne and paid by the Borrower and the Borrower
shall pay to the Lender on demand a sum equivalent to the amount of
such goods and services tax or other taxes, levies or charges (or such
part thereof which the law does not prohibit the Lender from collecting
from the Borrower) less any such part thereof as has been paid by the
Borrower under the preceding subclause, in addition to all other sums
payable to the Lender under this Agreement.
12. CHANGE IN CIRCUMSTANCES
12.1 If at any time the Lender reasonably determines that it is or will
become unlawful or contrary to any directive of any agency of any state
for it to allow all or part of the Facility to remain outstanding, to
make, fund or allow to remain outstanding all or part of the Drawing,
to carry out all or any of its other obligations under this Agreement
and/or to charge or receive interest at the rate or rates applicable
upon the Lender notifying the Borrower and setting out reasonable
details of such circumstances, the Facility or such part thereof to
comply with such directive as the Lender shall think fit shall be
cancelled and the Borrower shall prepay the Drawing without premium
together with accrued interest thereon and any other sum then due to
the Lender under this Agreement or such part thereof to comply with
such directive as the Lender shall require within the period allowed;
The expression "PERIOD ALLOWED" used in this Clause 12.1 shall mean the
period of time beyond which it will become unlawful or contrary to any
directive of any agency of any state for the Lender to allow all or
part of the Facility to remain outstanding, to make, fund or allow to
remain outstanding all or part of the Drawing, to carry out all or any
of its other obligations under this Agreement and/or to charge or
receive interest at the rate or rates applicable or which will be
applicable as aforesaid under this Agreement.
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12.2 If the Lender reasonably determines that, as a result of (a) the
introduction of or any change in, or in the interpretation or
application of any law or (b) compliance by it with any directive of
any agency of any state:-
12.2.1 the cost to the Lender of maintaining all or any part of the
Facility is increased; and/or
12.2.2 any sum received or receivable by the Lender under this
Agreement or the effective return to it under this Agreement
is reduced (except on account of tax on its overall net
income); and/or
12.2.3 the Lender makes any payment (except on account of tax on its
overall net income) or foregoes any interest or other return
on or calculated by reference to the amount of any sum
received or receivable by it under this Agreement,
the Borrower shall indemnify the Lender against that increased cost, reduction,
payment or foregone interest or other return and, accordingly, shall from time
to time on demand (whenever made) pay to the Lender the amount certified by it
to be necessary so to indemnify it (such certification to set out the basis of
such amount payable) Provided that in such event the Borrower shall be entitled
to prepay the Drawing in accordance with this Agreement but without any premium,
together with accrued interest thereon and any other sum then due to the Lender
under this Agreement.
13. SET-OFF
13.1 Upon the occurrence of an Event of Default, in addition to any banker's
lien right of set-off or other right which the Lender may have the
Lender shall be entitled at any time and without notice to the Borrower
to combine or consolidate all or any of the accounts of the Borrower
including accounts of the Borrower either alone or jointly with others
(whether current, deposit, savings or of any other nature whatsoever,
and whether in Dollars or other currency) wheresoever situate (in
Singapore or elsewhere) and set-off or transfer any sum standing to the
credit of any one or more such accounts in or towards satisfaction of
any moneys, obligations and liabilities of the Borrower to the Lender
on any other account whether in Singapore or elsewhere and whether such
liabilities be actual contingent primary collateral several or joint.
Upon the Lender exercising its rights under this Clause, it shall
promptly thereafter give written notice thereof to the Borrower.
13.2 The Lender shall be entitled at its absolute discretion at any time and
from time to time whether or not an Event of Default has occurred after
prior notice to the Borrower to debit any account of the Borrower with
the Lender (whether in Singapore or elsewhere) for the Total
Indebtedness or any part thereof Provided Always that any such debit
shall not constitute nor be deemed to be a payment of any moneys to
which it relates (except to the extent of any amount in credit in the
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said account of the Borrower with the Lender) nor shall it be deemed a
waiver of a Potential Event of Default or an Event of Default or any
other event of default under this Agreement.
14. REPRESENTATIONS AND WARRANTIES
14.1 The Borrower hereby represents and warrants to the Lender as follows: -
14.1.1 that the Borrower is a company with limited liability duly
registered and validly existing under the laws of Singapore
and has the power and authority to own assets and to conduct
the business which it conducts and/or proposes to conduct;
14.1.2 that the Borrower has full power and authority to consummate
the transactions contemplated by this Agreement and to borrow
the Facility;
14.1.3 that this Agreement constitute legal, valid and binding
obligations of the Borrower and is enforceable in accordance
with its terms;
14.1.4 that there are no proceedings pending before any court or to
the knowledge of the Borrower threatened against or affecting
the Borrower and no proceedings are before any government
agency or administrative body pending or to the knowledge of
the Borrower threatened against the Borrower which if
adversely determined would materially or adversely affect its
financial condition or operations or impair its rights to
carry on its business substantially as now conducted or the
ability of the Borrower to pay, when due, the principal of and
interest on the Facility and any other sums that may become
due and owing hereunder and to the best of the knowledge and
belief of the Borrower, the Borrower has complied with all
applicable statutes and regulations and with the requirements
of all governmental authorities having jurisdiction over the
Borrower;
14.1.5 that the certified true copies of the Memorandum and Articles
of Association and the Board of Directors' resolutions of the
Borrower delivered to the Lender are true and accurate copies
of the corporate records of the Borrower;
14.1.6 that the Borrower is not in default in the payment or
performance of any of its obligations for borrowed moneys;
14.1.7 that there is no provision of any existing mortgage, trust,
deed, contract, licence, franchise, concession or agreement
binding on the Borrower which is being contravened or breached
by the acceptance by the Borrower of the Facility or the
execution of this Agreement or
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by the performance or observance of any of its obligations
under this Agreement;
14.1.8 that no Event of Default or Potential Event of Default has
occurred or is continuing;
14.1.9 that save as otherwise disclosed to the Lender in writing or
otherwise permitted under Clause 16.2, no security or
encumbrance exists on or over the assets of the Borrower;
14.1.10 that no steps have been taken or are being taken to appoint a
receiver and/or manager or a judicial manager to take over the
assets of the Borrower and/or any of its Related Corporations
or a liquidator to wind up the Borrower or any of its Related
Corporations;
14.1.11 that the Borrower has paid and discharged all taxes rates
rents and governmental charges upon the Borrower or its
properties or adequate reserves have been established for the
payment thereof;
14.1.12 that save as disclosed in writing to the Lender, there is no
material adverse change in the financial condition, operating
environment or management of the Borrower since the date of
the last audited accounts of the Borrower;
14.1.13 that all audited financial statements of the Borrower which
have previously been submitted to the Lender are complete and
correct and fairly represent the financial condition of the
Borrower and the results of its operations for the period
stated in accordance with generally accepted accounting
principles applied on a consistent basis;
14.1.14 that all statements documents and information submitted by the
Borrower to the Lender relating to the business, assets and
financial condition or management of the Borrower are true
complete and correct in all material respects as at the date
when such statements, documents and information is given and
the Borrower is not aware of any facts or circumstances which
have not been disclosed to the Lender and which might have a
material effect or the business, assets, financial condition
or management of the Borrower.
14.2 Each of the representations and warranties contained in the preceding
sub-clauses shall survive and continue to have full force and effect
after the execution of this Agreement and the Borrower hereby warrants
to the Lender that the above representations and warranties will be
true and correct and fully observed as if repeated then by reference to
the then existing circumstances until all moneys payable or agreed to
be paid to the Lender under this Agreement are fully repaid.
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15. AFFIRMATIVE UNDERTAKINGS
The Borrower hereby undertakes and agrees with the Lender as follows:-
15.1 that the Borrower shall, upon receipt of a written request, duly
furnish to the Lender annually as soon as possible and in any event not
later than one hundred and eighty (180) days after the close of its
financial year the audited financial statements of the Borrower
consisting of a balance sheet as of the close of such respective
financial years and a statement of its respective profits and loss for
the period then ended in accordance with generally accepted accounting
practices and principles consistently applied and signed by its
respective auditors, such auditors to be acceptable to the Lender;
15.2 that the Borrower shall carry on and conduct its affairs and business
in a proper and efficient manner and will keep or cause to be kept all
its properties and assets in a good state of repair and condition in
accordance with good commercial practice and shall procure that each of
its subsidiaries shall also do so;
15.3 that the Borrower shall observe, perform and comply with all the
covenants undertakings stipulations terms and conditions of this
Agreement;
15.4 that the Borrower shall duly pay and discharge all rents, rates, taxes,
assessments and governmental charges from time to time levied upon it
or against its properties, business and operations prior to the date on
which penalties become attached thereto unless and to the extent only
that the same shall be contested in good faith and by appropriate
proceedings;
15.5 that the Borrower shall furnish and provide the Lender with and permit
the Lender to obtain all such statements information explanation and
data as the Lender may reasonably require regarding the financial state
or condition of the Borrower (other than confidential information of a
price sensitive nature);
15.6 that unless the Lender permits otherwise the Borrower shall use the
Facility only for the purposes specified;
15.7 that the Borrower shall obtain all necessary licences and comply with
all laws regulations rules and orders relating to the carrying on of
its business;
15.8 that the Borrower shall at its own expense, execute, sign, perfect, do
and if required register every document, act or thing as in the
reasonable opinion of the Lender may be necessary or desirable for the
purpose of implementing the terms and provisions of this Agreement;
15.9 that the Borrower shall deliver to the Lender upon demand any documents
or evidence under any provisions hereof the production of which has
been waived
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and to comply with all the terms and conditions of any provisions
hereof which have been waived;
15.10 that the Borrower shall promptly notify the Lender of any material
event or adverse change in the condition (financial or otherwise) or
management of the Borrower and of any circumstances which will
adversely affect the Borrower's ability to perform its obligations
hereunder.
16. NEGATIVE UNDERTAKINGS
Except with the prior written consent of the Lender, such consent not
to be unreasonably withheld, the Borrower shall not:-
16.1 effect any form of reconstruction or amalgamation by way of a scheme of
arrangement or otherwise nor approve, permit or suffer any change of
ownership or transfer of any part of its issued share capital or any
change in its shareholding Provided that the Lender's consent shall not
be required where any such reconstruction, amalgamation or change in
ownership or shareholding is the result of a restructuring exercise
within the Singapore Technologies Group of Companies;
16.2 create or permit to arise or subsist any mortgage, charge (whether
fixed or floating), pledge, hypothecation, lien or any other
encumbrance whatsoever on its properties and assets without the consent
of the Lender such consent not to be unreasonably withheld other than
liens arising solely by operation of law and not by way of contract and
are discharged within fourteen (14) days from the date of such liens
arising;
16.3 assign or enter into any arrangements to assign its account receivables
Provided that the Lender's consent shall not be required where such
assignment is to a company within the Singapore Technologies Group of
Companies;
16.4 terminate any of its businesses as now conducted which will
substantially and adversely affect the financial condition of the
Borrower; and
16.5 amend or alter any of the provisions in its Memorandum or Articles of
Association which will result in any change in the nature of business
or the borrowing powers of the Borrower.
17. EVENTS OF DEFAULT
17.1 Upon the happening of any of the following events:-
17.1.1 if a demand is made for payment of all or any moneys payable
by the Borrower to the Lender on demand and the Borrower fails
to make
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payment as demanded or if the Borrower fails to pay any sum
due or payable under this Agreement on the due date therefor;
17.1.2 if the Borrower fails to perform any of the terms and
conditions stipulated in this Agreement and if the failure is
in the reasonable opinion of the Lender capable of remedy, the
same is not remedied to the satisfaction of the Lender within
fourteen (14) days of such failure;
17.1.3 if any representation or warranty made by the Borrower in this
Agreement or any certificate or statement delivered or made
hereunder shall be or become incorrect or untrue in any
material respect and if the default is in the reasonable
opinion of the Lender capable of remedy, the same is not
remedied to the satisfaction of the Lender within fourteen
(14) days of such failure;
17.1.4 if the accounts of the Borrower delivered to the Lender under
Clause 15.1 are qualified in a manner or to an extent which,
in the reasonable opinion of the Lender, will adversely or
materially affect the financial condition of the Borrower;
17.1.5 if any other indebtedness (unless such indebtedness is
disputed by the Borrower or its Related Corporation (as the
case may be) in good faith) of the Borrower or any of its
Related Corporations (to whomsoever owing) or part thereof is
not paid at its stated maturity or on its due date or within
any applicable grace period or by reason of any default or the
occurrence of any event becomes due or is declared due prior
to its stated maturity or original due date or if the Borrower
or any of its Related Corporations fail to discharge any
guarantee or indemnity given by it with respect to any
indebtedness Provided that no Event of Default win occur under
this paragraph 17.1.5 unless and until the aggregate amount of
the indebtedness in respect of which one or more of the events
mentioned in this paragraph 17.1.5 has/have occurred equals or
exceeds Dollars Seven Million ($7,000,000.00);
17.1.6 if an event has occurred which constitutes a default under or
in respect of any other agreement or document to which the
Borrower is a party or by which the Borrower may be bound or
an event has occurred which, with the giving of notice, lapse
of time, determination of materiality or other condition might
constitute a default under or in respect of any such agreement
or document and which event might in the reasonable opinion of
the Lender adversely affect the financial condition of the
Borrower;
17.1.7 if the Borrower or any of its Related Corporations become
insolvent, is unable to pay its debts as they fall due, stops,
suspends, or threatens to stop or suspend payment of all or a
material part of its debts, begins
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negotiations or takes any proceedings or other step with a
view to readjustment, rescheduling or deferral of all its
indebtedness (or of any part of its indebtedness which it will
or might otherwise be unable to pay when due) or proposes or
makes a general assignment or an arrangement or composition
with or for the benefit of its creditors or a moratorium is
agreed or declared in respect of or affecting all or a
material part of any indebtedness on the part of the Borrower
or any of its Related Corporations for any moneys whatsoever;
17.1.8 if any application is made or petition presented pursuant to
the Companies Act (Cap. 50) for an order that the Borrower or
any of its Related Corporations be placed under the judicial
management of a judicial manager;
17.1.9 if the Borrower or any of its Related Corporations shall cease
or threaten to cease to carry on its respective business;
17.1.10 if a distress or execution is levied or enforced upon or
issued against any part of the properties or assets of the
Borrower or any of its Related Corporations;
17.1.11 if any legal proceedings suits or actions of any kind
whatsoever (whether criminal or civil) shall be instituted
against the Borrower or any of its Related Corporations which
in the reasonable opinion of the Lender will materially and
adversely affect the Borrower's ability to repay the amounts
payable to the Lender under this Agreement;
17.1.12 if any present or future security or encumbrance on or over
the assets of the Borrower or any of its Related Corporations
is or becomes enforceable;
17.1.13 if any step or petition is taken by any person for the
dissolution or winding up of the Borrower or any of its
Related Corporations or a receiver is appointed over the
assets and undertakings of the Borrower or any of its Related
Corporations other than any step or petition that is, in the
reasonable opinion of the Lender, frivolous or vexatious and
is withdrawn within fourteen (14) days after such step is
taken or petition is presented;
17.1.14 if the Borrower or any of its Related Corporations shall
transfer or otherwise dispose of all or substantially all its
assets to any person, firm or corporation except in the case
of a reconstruction, whether by way of any scheme of
arrangement or otherwise, which the Lender has approved;
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17.1.15 if any agency of any state seizes, compulsorily acquires,
expropriates or nationalises all or a material part of the
assets properties or shares of the Borrower or any of its
Related Corporations;
17.1.16 if it is or will become unlawful for the Borrower to perform
or comply with any one or more of its obligations under this
Agreement;
17.1.17 if the Borrower or any of the Related Corporations is declared
by the Minister to be a declared company under the provisions
of Part IX of the Companies Act (Cap. 50);
17.1.18 if there shall occur a material adverse change in the
business, assets or financial position of the Borrower or any
of its Related Corporations or if any situation shall have
arisen which in the reasonable opinion of the Lender shall
make it improbable that the Borrower will be able to perform
its obligations under this Agreement;
17.1.19 if at any time as determined by the Lender in its absolute
discretion, the Government of Singapore holds less than twenty
per cent (20%) of the issued and paid-up share capital of the
Borrower, whether legally or beneficially;
17.1.20 if at any time the issued and paid-up share capital of the
Borrower is less than the Facility then outstanding and owing
by the Borrower to the Lender,
and while such event is continuing, the Lender may by notice in writing to the
Borrower declare the Total Indebtedness to be immediately due and payable
whereupon they shall become so due and payable.
17.2 Upon the Total Indebtedness becoming due and payable pursuant to Clause
17.1:-
17.2.1 the Lender shall be entitled to apply any credit balance
standing to any account of the Borrower with the Lender and in
whatever currency towards satisfaction of any sum due to the
Lender from the Borrower on any account whatsoever (without
prejudice to the generality of Clause 13); and
17.2.2 all the Facility which have not been drawn or cancelled shall
automatically be cancelled and forthwith cease to be
available.
18. INDEMNITY
18.1 Without prejudice to the foregoing terms and provisions the Borrower
shall indemnify the Lender and hold the Lender harmless from and
against all losses,
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damages, expenses, penalties, costs, claims or liabilities whatsoever,
legal or otherwise, which the Lender may sustain suffer or incur as a
consequence of:-
18.1.1 any prepayment of the Drawing or any part thereof otherwise
than on an Interest Payment Date or in accordance with this
Agreement;
18.1.2 any default in the payment of any principal moneys when due or
any interest accrued thereon, or any other amounts payable
hereunder; and/or
18.1.3 the occurrence of any Event of Default or Potential Event of
Default,
and such losses, damages, expenses, penalties, costs, claims or liabilities
shall include but not be limited to such amount as the Lender shall certify
(such certification being conclusive and binding upon the Borrower save for any
manifest error or fraud and such certification to set out the basis of such
amount payable) as being necessary to compensate the Lender for:-
(a) any actual loss of interest, commission or fee incurred on
account of such default; and
(b) any interest, commissions or fees paid or payable on account
of any funds borrowed in order to carry or maintain any unpaid amount except to
the extent that such interest, commission or fees are recovered under the
provisions of this Agreement.
For the avoidance of doubt, the indemnity herein shall not extend to loss of
profit, earning or income suffered by the Lender as a result of any prepayment
of the Drawing made by the Borrower in accordance with this Agreement.
19. CURRENCY INDEMNITY
19.1 Dollars is the sole currency of account and payment for all sums
payable by the Borrower under or in connection with this Agreement,
including damages.
19.2 Any amount received or recovered in a currency other than Dollars
(including but not limited to any amount received or recovered as a
result of, or the enforcement of, a judgment or order of a court of any
jurisdiction, in the dissolution of the Borrower or otherwise) by the
Lender in respect of any sum expressed to be due to it from the
Borrower under this Agreement shall only constitute a discharge to the
Borrower to the extent of the Dollar amount which the Lender is able,
in accordance with its usual practice and at The Development Bank of
Singapore Limited's own rate of exchange then prevailing, to purchase
with the amount so received or recovered in that other currency on the
date of that receipt or recovery (or, if it is not practicable to make
that purchase on that date, on the first date on which it is
practicable to do so).
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19.3 If that Dollar amount is less than the Dollar amount expressed to be
due to the Lender under this Agreement, the Borrower shall indemnify
the Lender against any loss sustained by it as a result thereof. In any
event, the Borrower shall indemnify that Lender against the reasonable
cost of making any such purchase.
19.4 These indemnities constitute a separate and independent obligation from
the other obligations in this Agreement, shall give rise to a separate
and independent cause of action, shall apply irrespective of any
indulgence granted by any parties hereto and shall continue in full
force and effect despite any judgment, order, claim or proof for a
liquidated amount in respect of any sum due under this Agreement or any
judgment or order.
20. WAIVER NOT TO PREJUDICE RIGHT OF THE LENDER
20.1 The Lender may from time to time waive either unconditionally or on
such terms and conditions as it may deem fit any breach by the Borrower
of any of the undertakings, stipulations, terms and conditions herein
contained and any modification thereof but without prejudice to its
powers, rights and remedies for enforcement thereof, Provided Always
that:-
20.1.1 no neglect or forbearance of the Lender to require and enforce
payment of any monies hereunder or the performance and
observance of any undertakings stipulations terms and
conditions contained in this Agreement, nor any time which may
be given to the Borrower shall in any way prejudice or affect
any of the rights, powers or remedies of the Lender at any
time afterwards to act strictly in accordance with the
provisions hereof; and
20.1.2 no such waiver of any such breach as aforesaid shall prejudice
the rights of the Lender in respect of any other or subsequent
breach of any of the undertakings, stipulations, terms or
conditions aforesaid.
20.2 Any such waiver and any consent by the Lender under any provision of
this Agreement must be in writing and may be given subject to any
conditions thought fit by the Lender. Any waiver or consent shall be
effective only in the instance and for the purpose for which it is
given.
20.3 The rights and remedies provided in this Agreement are cumulative and
not exclusive of any rights or remedies provided by law.
21. INDULGENCE OF THE LENDER NOT TO DISCHARGE THE BORROWER
The liability of the Borrower hereunder shall not be impaired or
discharged by reason of the fact that any person is or has become in any way,
whether with or without the Lender's acceptance, liable to pay any of the moneys
owing by the Borrower hereunder or by reason of any time or other indulgence
being granted by or with the
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consent of the Lender to any such person or by reason of any arrangement being
entered into or composition accepted by the Lender modifying the operation of
law or otherwise the rights and remedies of the Lender under the provisions of
this Agreement.
22. FEES AND EXPENSES
The Borrower shall pay forthwith on demand:-
22.1 all reasonable expenses including stamp duty (whether as penalty or
otherwise), legal, administrative, registration, execution, valuation
fees and any other costs or charges (including abortive costs) incurred
or expended by the Lender in connection with the Facility and/or this
Agreement whether the Facility is accepted or otherwise together with
all goods and services tax in connection therewith; and
22.2 all legal fees as between solicitors and clients on a full indemnity
basis and other costs and disbursements whatsoever including but not
limited to stamp or other duties incurred by the Lender in connection
with demanding and enforcing payment of monies due hereunder or
otherwise howsoever in enforcing this Agreement, or any other document
called for by the terms of this Agreement or any of the covenants,
undertakings, stipulations, terms, conditions or provisions of this
Agreement, or any other document called for by the terms of this
Agreement or incurred in connection with any delay or Omission on the
part of the Borrower to pay any stamp or other duties in connection
with this Agreement, or any other document called for by the terms of
this Agreement together with all goods and services tax in connection
therewith.
23. DEFAULT IN PAYMENT OF EXPENSES
In addition to and not in derogation of the other provisions of this
Agreement, if the Borrower shall fail or refuse to pay any legal fees tax stamp
duty and other costs charges and expenses which the Borrower is liable to pay
under any provisions of this Agreement, the Lender may at its discretion pay the
same (but shall not be under any obligations to do so) and if such payment is
made by the Lender the Borrower shall forthwith on demand repay the same to the
Lender together with interest thereon at the Default Interest Rate, such
interest to be calculated from day to day with monthly rests from the date of
payment by the Lender up to the date of repayment by the Borrower.
24. NOTICES
24.1 Except as otherwise expressly provided herein, any notice, request,
demand or other communication to be given or served under this
Agreement to or on any party may be delivered at or sent by prepaid
registered post or by telex or facsimile transmission to the address,
telex number or facsimile number and marked for the attention of the
person or department (if any) from time to time
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designated by that party for the purpose of this Agreement and shall be
deemed to be duly served:-
24.1.1 if it is delivered, at the time of delivery;
24.1.2 if it is sent by prepaid registered post, two (2) Business
Days after posting thereof; and
24.1.3 if it is sent by telex or facsimile transmission, immediately
after transmission thereof if the date of transmission is a
Business Day, and if the date of transmission is not a
Business Day, then the notice by telex or facsimile
transmission shall be deemed to be served on the next Business
Day.
24.2 Any communication from the Borrower shall be irrevocable. Except for
the drawdown notice, all other notices, requests, demands or other
communications which are required by this Agreement to be in writing
may be made by telex or facsimile transmission.
24.3 For the purpose of this Clause, notice, request, demand or other
communication to any party shall be given or served at its address,
telex number or facsimile number set out below its name in the
execution clause or at such other address, telex number or facsimile
number from time to time notified to the other parties in writing.
25. SUCCESSORS AND ASSIGNS
25.1 This Agreement shall be binding upon and inure to the benefit of the
Borrower and the Lender and their successors in title and the assigns
of the Lender and any reference in this Agreement to any party shall be
construed accordingly. All undertakings, agreements, representations
and warranties given, made or entered into by the Borrower under this
Agreement shall survive the making of any assignments hereunder.
25.2 The Borrower shall have no right to assign or transfer any of its
rights or obligations hereunder and it shall remain fully liable for
all of its undertakings, agreements, duties, liabilities and
obligations hereunder, and for the due and punctual observance and
performance thereof.
25.3 The Lender may assign all or part of its rights or transfer all or part
of its obligations under this Agreement without the consent of the
Borrower. Any such assignee or transferee shall be and be treated as a
party of this Agreement for all purposes of this Agreement and shall be
entitled to the full benefit of this Agreement to the same extent as if
it were an original party in respect of the rights or obligations
assigned or transferred to it.
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26. SEVERABILITY
If any one or more of the provisions contained in this Agreement shall
be deemed invalid, unlawful or unenforceable in any respect under any applicable
law, the validity, legality and enforceability of the remaining provisions
contained therein shall not in any way be affected or impaired but this
Agreement shall be construed as if such invalid, unlawful or unenforceable
provision had never been included in this Agreement.
27. DISCLOSURE
The Lender shall be entitled, subject to the prior written consent of
the Borrower, such consent not to be unreasonably withheld, to disclose to any
potential assignee or transferee or guarantor or any other person who has
entered into or is proposing to enter into contractual arrangements with the
Lender or the Borrower in relation to this Agreement or any moneys or
liabilities under or relating to the Facility any information about the Borrower
and the Facility or information regarding the moneys or other relevant
particulars of any of the Borrower's accounts with the Lender.
28. CALCULATION AND EVIDENCE
28.1 The entries in the accounts maintained by the Lender in accordance with
its usual practice shall be prima facie evidence of the existence and
amounts of the obligations of the Borrower recorded therein.
28.2 A statement or certificate in writing signed by the Assistant Manager
or Investment Administration Officer or other duly authorised officer
for the time being of the Lender and certifying (a) the amount due at
any time in respect of any moneys owing or payable by the Borrower to
the Lender and/or any liabilities incurred by the Lender and payable by
the Borrower to the Lender under or by virtue of any terms, conditions
or stipulations of this Agreement, or (b) any interest rate applicable;
or any other certificate determination, notification or opinion of the
Lender provided for in this Agreement shall (in the absence of any
manifest error or fraud) be final and conclusive of the matters so
certified and be binding upon the Borrower.
29. GOVERNING LAW AND SUBMISSION TO JURISDICTION
This Agreement shall be governed by and construed in all aspects in
accordance with the laws of Singapore.
SCHEDULE 1
Conditions Precedent
1. A certified copy of the Certificate of Incorporation and the Memorandum
and Articles of Association of the Borrower.
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2. A certified copy of resolutions of the Board of Directors of the
Borrower in form and substance satisfactory to the Lender authorising,
in accordance with the Memorandum and Articles of Association of the
Borrower:-
(a) the acceptance of the Facility upon the terms and conditions
enumerated in this Agreement;
(b) the execution of this Agreement;
(c) a person or persons to sign the drawdown notice and any other
notices and any other documents to be executed under hand and
to be given pursuant to or ancillary to this Agreement by or
on behalf of the Borrower;
(d) the execution of all other documents called for by this
Agreement.
3. A verification certificate by a director of the Borrower together with
list of the names and specimen signatures of each of the authorised
signatories referred to in paragraph 2(c) authenticated by such
director.
4. A certificate from the Borrower's Company Secretary, certified by its
Chairman, that the Borrower's issued and paid-up capital is no less
than Dollars Fifty million ($50,000,000.00).
5. This Agreement duly executed and all stamp fees (if any) payable
thereon under the laws of Singapore.
6. Such other documents as the Lender may reasonably request not later
than one (1) Business Day before the date of the Drawing.
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SCHEDULE 2
NOTICE OF DRAWING
Three (3) Business Days before date of Drawing
POST OFFICE SAVINGS BANK OF SINGAPORE
00 Xxxx Xxxxx Xxxx
5th Storey POSB Centre
Xxxxxxxxx 000000
("the Lender")
Attention: Ms Eu Chin Fen
$50 MILLION TERM LOAN FACILITY TO CHARTERED SEMICONDUCTOR MANUFACTURING LIMITED
Dear Sirs
Pursuant to Clause 5 of the Facility Agreement dated the ____ day of __________,
1997 made between ourselves as Borrower and yourselves Lenders ("the Agreement")
in respect of the Facility (as defined in the Agreement), we hereby give you
notice for the following Drawing:-
Amount : Dollars
($_____________)
Date of Drawing:
Payee: [name(s) and address(es)]
We confirm:-
(1) that the Conditions Precedent mentioned in Schedule 1 of the Agreement
have been complied with in every respect;
(2) that each of the Representations and Warranties contained in Clause 14
of the Agreement are true and accurate in all respects as though made
on the date of this Notice with reference to facts and circumstances
presently subsisting and will be true and accurate in all respects on
the date of the intended Drawing as though made on the date of the
intended Drawing with reference to facts and circumstances then
subsisting;
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(3) that as at the date hereof, no Event of Default has occurred and no
event has occurred which, with the giving of notice and/or the lapse of
time might constitute an Event of Default. We further represent warrant
and undertake that no Event of Default and no such event as aforesaid
will exist at the date of the intended Drawing; and
Yours faithfully
CHARTERED SEMICONDUCTOR MANUFACTURING LIMITED
.................................
Name:
Title:
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IN WITNESS WHEREOF the parties hereto have executed this Agreement
under hand the day and year first above written.
Signed by Tan Xxxx Xxxx ) /s/ TAN XXXX XXXX
) ------------------------------
for and on behalf of )
CHARTERED SEMICONDUCTOR )
MANUFACTURING LIMITED )
Address: 00 Xxxxxxxxx Xxxxxxxxxx )
Xxxx X Xxxxxx 0 )
Xxxxxxxxx 000000 )
Facsimile Number: 362 2909 )
Attn: Xx. Xxxx Song Hwee )
)
in the presence of: Chia Song Hwee ) /s/ CHIA SONG HWEE
------------------------------
Signed by Chua Bee Choo (Miss) ) /s/ CHUA BEE CHOO
Director (Investment) ) ------------------------------
POS Bank )
for and on behalf of )
POST OFFICE BANK OF )
SINGAPORE )
Address: 00 Xxxx Xxxxx Xxxx )
POSB Centre )
Xxxxxxxxx 000000 )
Telex Number: RS 25450 )
Facsimile Number: 339 1479 )
Attn: Ms. Eu Chin Fen )
in the presence of: Eu Chin Fen ) /s/ EU CHIN FEN
) ------------------------------
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