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EXHIBIT 10.21
Dated this 21st day of July, 1997
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
as Company
and
ECONOMIC DEVELOPMENT BOARD
as Board
------------------------------------------
EDB LOAN AGREEMENT
-------------------------------------------
ECONOMIC DEVELOPMENT BOARD
000 XXXXX XXXXXX XXXX #00-00
XXXXXXX XXXX XXXXX
XXXXXXXXX 000000
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CONTENTS
CLAUSE HEADING PAGE
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1. Definitions..................................................... 1
2. Term Loan....................................................... 3
3. Conditions Precedent and Availability........................... 3
4. Purpose of The Term Loan........................................ 4
5. Drawings of Term Loan........................................... 5
6. Availability of Term Loan....................................... 6
7. Interest........................................................ 6
8. Repayment of The Term Loan...................................... 6
9. Payment Provisions.............................................. 7
10. Prepayment...................................................... 7
11. Security........................................................ 7
12. Warranties and Representations.................................. 7
13. Affirmative Undertaking......................................... 8
14. Negative Undertakings........................................... 10
15. Events of Default............................................... 11
16. Notices......................................................... 13
17. Waiver Not To Prejudice Right of Board.......................... 14
18. Indulgence of the Board......................................... 14
19. Severability.................................................... 14
20. Governing Law................................................... 14
21. Miscellaneous................................................... 15
22. Appendix I...................................................... 17
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THIS AGREEMENT is made the 21st day of July, One Thousand Nine Hundred
and Ninety Seven (1997) Between
CHARTERED SEMICONDUCTOR MANUFACTURING LTD, a company incorporated in
the Republic of Singapore and having its registered office at 00 Xxxxxxxxx
Xxxxxxxxxx Xxxx X, Xxxxxx 0, Xxxxxxxxx 000000 (hereinafter called "the Company")
of the one part; And
ECONOMIC DEVELOPMENT BOARD, a Corporate Body established in the
Republic of Singapore by The Economic Development Board Act (Cap. 85) of 000,
Xxxxx Xxxxxx Xxxx, #00-00 Xxxxxxx Xxxx Xxxxx Xxxxxxxxx 000000 (hereinafter
called "the Board") of the other part.
WHEREAS:
(1) The Company has applied to the Board for a term loan up to a maximum
aggregate principal amount of Singapore Dollars Three Hundred Million
(S$300,000,000.00) under the Capital Assistance Scheme of the Board,
hereinafter known as the Principal Amount.
(2) The Board is willing to grant the term loan to the Company, upon the
terms and subject to the conditions hereinafter set forth.
NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:
1. DEFINITIONS
1.1 In this Agreement, unless the context otherwise requires, the following
words or expressions shall have the following meanings respectively:
(a) "Business Day" means a day on which banks in Singapore are
open for business excluding Saturday and Sunday.
(b) "Day" means a calendar day.
(c) "Dollars" and the sign "$" respectively mean the lawful
currency of the Republic of Singapore.
(d) "Drawing" means any, each or all (as the context may require)
of the drawings made by the Company under the Term Loan and
includes the First Drawing as defined hereof.
(e) "Event of Default" and "Events of Default" mean any, each or
all (as the context may require) of the Events of Default
described in Clause 15 hereof.
(f) "First Drawing" means the first of the drawings made by the
Company under the Term Loan.
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(g) "Productive Fixed Assets" means the equipment for the wafer
fabrication of semiconductor devices at a facility established
in Woodlands in Singapore (the "FAB 2 Project").
(h) "Guarantee" means each of the bank Guarantees issued or to be
issued severally by banks acceptable to the Board at the
request of the Company and duly executed under seal or signed
by the said banks' authorized signatories, in favor of the
Board and in the form and substance acceptable to the Board.
(i) "Interest Rate" means the rates of interest determined in
accordance with Clause 7.2 hereof.
(j) "Interest Payment Dates" means the day falling on the first
Business Day of March or the first Business Day of September
as the case may be and the first Interest Payment Date shall
be the payment date (either 1st March or 1st September)
falling more than 90 days from the date of the first drawdown.
(k) "Interest Period" means the period or periods determined as
follows:-
(i) the Interest Period in relation to the First Drawing
shall begin on the date on which that Drawing is made
hereunder and shall end on the first Interest Payment
Date;
(ii) the Interest Period in respect of any subsequent
Drawing shall begin on the date on which the relevant
subsequent Drawing is made and shall end on the
Interest Payment Date falling immediately thereafter;
(iii) each successive Interest Period shall begin on the
last Interest Payment Date and shall end on the
Interest Payment Date falling six (6) months
immediately following;
(iv) if any Interest Period would otherwise end on a day
which is not a Business Day that Interest Period
shall be extended to the next succeeding day which is
a Business Day;
(v) if any Interest Period is extended by the application
of (iv) above, the following Interest Period shall
(without prejudice to the application of (iv) above)
end on the day on which it would have ended if the
preceding Interest Period had not been so extended;
and
(vi) any amount to be repaid under clause 8 shall have a
final Interest Period expiring on the relevant
Repayment Date.
(l) "Minimum Prepayment" means (a) in relation to a Drawing having
a principal amount equal to S$100,000,000.00 or higher,
S$5,000,000.00 (b) in relation to a Drawing having a principal
amount of not less than S$10,000,000.00 but not more than
S$100,000,000.00, S$2,000,000.00; and (c) in relation to a
Drawing having a principal amount of less than
S$10,000,000.00, S$500,000.00.
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(m) "Month" means a calendar month.
(n) "person" shall include a company, body of persons, association
or body corporate or unincorporated.
(o) "Repayment Dates" means the first Day of March and the first
Day of September of each year.
(p) "Term Loan" means the loan facility in the aggregate amount of
Singapore Dollars Three Hundred Million (S$300,000,000.00) to
be made available to the Company by the Board in accordance
with the terms and conditions set out in this Agreement and
shall also be deemed to include the whole or any part thereof.
(q) "Year" means a calendar year.
1.2 Unless the context otherwise requires, words importing the singular
number include the plural number and vice versa.
1.3 The words "hereof", "herein", "hereon" and "hereunder" and words of
similar import, when used in this Agreement, refer to this Agreement as
a whole and not to any particular provision of this Agreement.
1.4 The headings to the Clauses hereof shall not be deemed to be a part
thereof or be taken in consideration in the interpretation or
construction thereof or of this Agreement.
1.5 Reference herein to Clauses are references to Clauses of this
Agreement.
2. TERM LOAN
Subject to the provisions of this Agreement and in particular those of
Clause 3 hereof, the Board will make available to the Company the Term
Loan at the times and in the manner as hereinafter provided. The Term
Loan shall be for a period of five (5) years, inclusive of a two (2)
year grace period for repayment of the Term Loan as provided in Clause
8 herein.
3. CONDITIONS PRECEDENT AND AVAILABILITY
The right of the Company to make any Drawing or Drawings under the Term
Loan, and the obligations of the Board to make available the same shall
be subject to the following conditions precedent, that is to say:
(a) There shall not exist at or prior to any Drawing, any Event of
Default or any condition, event or act which, with the giving
of notice or lapse of time, or both, would constitute such an
Event of Default.
(b) All representations, warranties and statements contained
herein, or otherwise made in writing in connection herewith or
in any certificate or statement furnished pursuant to any
provision of this Agreement or in any document referred to
herein
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made by the Company shall be true and correct with the same
effect as though made on the date on which the Drawing is to
be made.
(c) The Board shall have received, in form and substance
satisfactory to the Board, the following:
(i) A copy of the Memorandum and Articles of Association
of the Company duly certified by a Director and the
Secretary of the Company to be a true copy thereof;
(ii) A copy, certified by a Director and Secretary of the
Company, of the resolution of the Board of Directors
of the Company, which is in full force and effect,
approving the terms and conditions contained in this
Agreement and authorizing a person or persons to sign
this Agreement and any other document to be given to
the Board from time to time by the Company;
(iii) Specimen signatures of the persons authorized to sign
this Agreement on behalf of the Company, and to sign
the notices of Drawing and any other document to be
given from time to time by the Company, such
specimens to be certified by a Director or the
Secretary of the Company to be the true signatures of
such persons respectively, and
(iv) The Guarantee(s) relating to the particular Drawing
to be made and duly executed.
(d) All acts, conditions and things required to be done and
performed and to have happened precedent to the execution and
delivery of this Agreement and the Guarantee(s) and to
constitute this Agreement and the Guarantee(s) legal, valid
and binding obligations enforceable in accordance with their
respective terms, shall have been done and performed and have
happened in compliance with all applicable laws.
(e) There is no breach by the Company of any of the terms,
conditions and undertakings herein contained.
4. PURPOSE OF THE TERM LOAN
4.1 Subject to the terms and conditions herein contained and in particular
to those of Clause 3, the Term Loan will be made available by the Board
to the Company for financing the purchase of Productive Fixed Assets of
the Company's plant for the FAB 2 Project only, provided always that
such financing shall only be in respect of payments already made by the
Company after 1 September 1996 in respect of the said Project. Under
this Agreement, the Company shall be required to invest a minimum of
Singapore Dollars One Billion Five Hundred Million (S$1,500,000,000.00)
cumulatively in Productive Fixed Assets (excluding land) by 31 December
1999.
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4.2 Upon advance of a Drawing under Clause 5, the Company shall apply all
the proceeds thereof for the purposes described in Clause 4.1 above and
for no other purpose whatsoever.
5. DRAWINGS OF TERM LOAN
5.1 Subject to the terms and conditions of this Agreement and in particular
to all the conditions of Clause 3 being complied with the Board will
make available drawings under the Term Loan in accordance with a
disbursement schedule submitted by the Company and approved by the
Board at least 45 days before the First Drawing of the Term Loan.
5.2 The Company shall give notice of Drawing to the Board not later than
thirty (30) Business Days prior to the intended date of Drawing and
each notice of Drawing shall be substantially in the form set out in
the Appendix I hereto and shall:
(i) state the date (which must be a Business Day) and the amount
of the proposed Drawing;
(ii) be irrevocable;
(iii) commit the Company to borrow the amount and on the date
stated; and
(iv) constitute a representation and warranty that at the date
thereof the warranties and representations set out in Clause
12 are true and no Event of Default and no event or act which
with the giving of notice or lapse of time or both would
constitute such an Event of Default has occurred.
5.3 The First Drawing shall be made not later than 31 July 1997 or such
other later date as may be approved by the Chairman of the Board or his
lawful representative.
5.4 (a) The Company shall have the option to request the Board to
advance the amount of a Drawing provided that written notice
is given by the Company to the Board indicating the amount to
be advanced, not later than fourteen (14) Business Days prior
to the intended date of Drawing;
(b) In respect of any monies advanced under this clause, the
Company shall, without demand, produce to the Board, within
sixty-five (65) Days of the date of the Drawing, all
documentary proof showing that the Company has fully utilize
the said Drawing for the payment of approved Productive Fixed
Assets, and that such payment was made within 60 Days after
advance of the said Drawing.
(c) Any amount advanced under a Drawing that is in excess of the
aggregate amount actually paid by the Company in respect of
approved Productive Fixed Assets at the expiry of 60 days
after Drawing (the "Excess Amount") shall be subject to
interest. Interest to be applied on the Excess Amount shall be
at the rate of three per cent (3%) per annum above the average
prevailing prime lending rate as reported by the Monetary
Authority of Singapore from the date of the relevant
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Drawing to the date that the Excess Amount is eventually paid
by the Company for approved Productive Fixed Assets.
5.5 The amount of each Drawing shall not exceed S$200,000,000.00 at any one
time.
6. AVAILABILITY OF TERM LOAN
The Term Loan shall be available for Drawing for a period of two (2)
Years from the date of the First Drawing after which date any part of
the Term Loan not drawn shall be cancelled.
7. INTEREST
7.1 The Company shall pay to the Board on each Interest Payment Date
interest in arrears on the amounts drawn and outstanding under the Term
Loan from time to time in respect of each Interest Period relating
thereto determined in accordance with clause 1.1(k) and at the Interest
Rate determined in accordance with sub-clause 7.2 hereof
7.2 Interest will be charged by the Board at the rate of four and one
quarter per cent (4_%) per annum (the "Interest Rate") and shall be
payable in arrears at six monthly intervals, the first payment to bc
made on the Interest Payment Date as defined in Clause 1.1(j) hereof.
7.3 The amount of interest payable on the drawings under the Term Loan from
time to time owing and outstanding shall be calculated at the Interest
Rate on the basis of a year of three hundred and sixty five (365) Days
for the actual number of Days elapsed.
7.4 The certificate of the Board in writing as to the determination of the
amount of interest payable on each Interest Payment Date shall be
conclusive and binding upon the parties hereto, save for manifest
error.
7.5 The Company recognizes and accepts that it is commercial practice for
interest on amounts in default to be charged and that the rate of
interest to be applied by the Board on the amounts in default shall be
three per cent (3%) per annum above the average prevailing prime
interest rate as reported by the Monetary Authority of Singapore
compounded on a monthly basis, which will represent a genuine estimate
of the damage the Board would suffer in the event of a failure by the
Company in the payment on the due date of any principal and/or interest
on the amounts due and payable to the Board.
8. REPAYMENT OF THE TERM LOAN
8.1 The Company shall repay the principal of the amounts drawn under the
Term Loan in seven (7) equal consecutive six-monthly installments on
the Repayment Dates. The first of such installments shall be paid on
the first Repayment Date following two (2) Years from the date of the
First Drawing of the Term Loan or such other later date as the Board
may determine in its absolute discretion.
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8.2 The Board shall only on request by the Banks or the Company, confirm
the receipt of any repayment and that such confirmation shall not be
unreasonably withheld.
9. PAYMENT PROVISIONS
9.1 All payments to be made by the Company under this Agreement shall be
made not later than 11 a.m. (Singapore time) on the relevant day to the
Board at its address described above or at such other address as the
Board may from time to time designate by notice in writing to the
Company not less than ten (10) Business Days prior to the date of any
such payment hereunder.
9.2 If any sum becomes due for payment under this Agreement on a day which
is not a Business Day, such payment shall be made on the next
succeeding Business Day and all calculation of interest shall be
adjusted accordingly.
10. PREPAYMENT
10.1 The Company may prepay the entire Term Loan or any part of the Term
Loan which is the Minimum Prepayment amount, before maturity on paying
accrued interest on the amount prepaid and a prepayment fee amounting
to 0.125 per cent of the amount prepaid and any other sum due under
this Agreement.
10.2 The Company shall give the Board seven (7) Days' prior written
notice of the intention to prepay any amount described in Clause 10.1.
10.3 In the event the Company is required to prepay the principal sum owing
under the Term Loan pursuant to Clause 15.2 (a) hereof the Company
shall pay to the Board the fee at the rate described in Clause 10.1
above on the principal sum owing.
11. SECURITY
Prior to each Drawing of the Term Loan, the Company shall procure the
requisite Guarantee(s) to be given in favor of the Board.
12. WARRANTIES AND REPRESENTATIONS
12.1 The Company hereby warrants and represents to the Board as follows:
(a) that it is lawfully incorporated, validly existing and in good
standing under the laws of the Republic of Singapore;
(b) that it has the corporate power and authority to carry on the
business as now being conducted;
(c) that it has the corporate power to execute and perform this
Agreement and to borrow hereunder;
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(d) that the execution, delivery and performance of this Agreement
and the borrowings hereunder have been duly authorized by all
requisite corporate action and will not violate any provision
of any agreement or other instrument to which the Company is a
party;
(e) that its latest balance sheet and financial statements
submitted to the Board are correct and complete and accurately
represent the financial condition of the Company on the date
thereof and the results of its operation for the period then
ended and each such balance sheet shows all known present and
future liabilities, direct or contingent, of the Company as of
the date thereof and each financial statement referred to
herein was prepared in accordance with generally accepted
accounting principles;
(f) save as disclosed in writing to the Board there has been no
material adverse change in the business activities, operations
or financial condition of the company since the date of the
latest financial statements referred to in sub-paragraph (e)
above;
(g) save as otherwise disclosed to the Board, there are no
actions, suits or proceedings pending or, to the knowledge of
the Company, threatened against the Company or its parent or
any of its subsidiaries, at law or in equity (whether or not
purportedly on behalf of the Company, its parent or any of its
subsidiaries) before any court or competent body adjudicating
such matters, which involve the possibility of any judgement
or liability which may result in any material adverse change
in the business, operations, properties or assets, or in the
condition, financial or otherwise of the Company or its parent
or any of its subsidiaries and adversely affect the Company's
ability to make repayment of the Term Loan;
(h) that to the best of the knowledge of the Company no steps have
been taken or are being taken to appoint a receiver and/or
manager or judicial manager or liquidator or any other person
over it or any of its assets or in any winding up action.
12.2 Each of the warranties and representations contained in the preceding
subclause shall survive and continue to have full force and effect
after the execution of this Agreement and that they will be true and
correct and fully observed as though made on the date of Drawing or
each Interest Payment Date with reference to the facts and
circumstances then subsisting.
13. AFFIRMATIVE UNDERTAKING
The Company hereby undertakes and agrees with the Board as follows:-
(a) that the Term Loan granted by the Board under the provisions
of this Agreement and every part thereof shall be used solely
for the purpose and in the manner hereinbefore stipulated and
not for any other purpose or manner save with the prior
written consent of the Board.
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(b) that it will carry on and conduct its business and affairs
with due diligence and efficiency in accordance with sound
technical financial industrial and managerial standards and
practices including the maintenance of adequate records with
qualified personnel and in accordance with its Memorandum and
Articles of Association.
(c) that it will furnish and provide the Board with and permit the
Board to obtain all such statements information explanation
and data, except information of a confidential nature, as the
Board may reasonably require, by prior written notice,
regarding the affairs operations administration financial or
other whatsoever state or condition of the Company or any of
the matters in this Clause mentioned.
(d) that it will furnish to the Board particulars of any kind of
immovable property hereafter acquired by the Company.
(e) that the Board shall have the right as it may reasonably
request, by prior written notice, to inspect any land or
premises where the Company carries on its business and inspect
the same and all property and assets whatsoever therein or
thereon and all accounts records and statements wherever the
same may be situate and to make inventories and record
thereof.
(f) that it will supply to the Board certified copies of all
resolutions passed which materially affect the financial state
and condition of the Company at general and/or special
meetings of the Company within seven (7) Days from the date of
the passing of such resolutions.
(g) that it will deliver to the Board every year immediately after
the issue of the audited accounts a copy of the Company's
audited balance sheet and profit and loss accounts audited by
a firm of auditors of international repute together with
Auditors' and Directors' Reports and will also deliver to the
Board copy of the annual return which the Company is required
by law to file with the Registrar of Companies.
(h) that it shall punctually pay all rents rates assessments taxes
and all outgoings payable in respect of any land/or premises
belonging to the Company or at which it carries on business
and obtain all necessary licenses and comply with all laws
regulations rules and orders relating to the carrying on of
its business on such premises.
(i) that it will keep all its plant machinery equipment buildings
constructions fixtures fittings implements and other effects
in good and substantial repair and proper working condition to
the satisfaction of the Board.
(j) that it shall not dismantle pull down or remove any part of
the buildings fixtures plant machinery and equipment, except
in cases where such dismantling pulling down or removal shall
in the opinion of the Company be rendered necessary by reason
of the same being obsolete worn out or damaged, in which case
the
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Company shall give sufficient written notice to the Board and
will replace such property by property of similar nature and
value after giving intimation to the Board.
(k) that it shall give to the Board such written authorities or
other directions and provide such facilities and access as the
Board may require for the aforesaid inspection and shall pay
all costs fees travelling and other out-of-pocket expenses
whether legal or otherwise in respect of such inspection.
(l) that it shall continue with its best efforts to bring
strategic equity shareholders into the Company with the prior
approval of the Board.
(m) that insofar as may be necessary the Company shall amend its
Memorandum and Articles of Association so as to enable it to
observe and perform all the covenants undertakings terms
stipulations conditions and other provisions of this
Agreement.
14. NEGATIVE UNDERTAKINGS
The Company hereby undertakes and agrees with the Board that it shall
not without the written consent of the Board, which consent shall not
be unreasonably withheld:-
(a) embark on any new project or substantial expansion or
diversification of its present business and operations, which
are not related to its present business activities;
(b) invest its funds by way of deposits (other than deposits with
banks licensed by the Monetary Authority of Singapore), loans,
share capital or otherwise in any other concern or issue or
give guarantee(s) for the account or on behalf of any person
or otherwise become contingently liable for or in connection
with any obligations or indebtedness of any person;
(c) effect any form of reconstruction including amalgamation with
another company which will result in STPL holding less than
51% of the share capital of the Company;
(d) create or permit to arise or subsist, any mortgage, charge
(whether fixed or floating), pledge, lien or other
encumbrances whatsoever (except those which have been
specifically disclosed to and approved by the Board
respectively) on any of its properties or assets, both present
and future whatsoever and wheresoever situate;
(e) declare or pay any dividend or make any income or capital
distribution, whether in cash or in specie, to its
shareholders or any of them; or
(f) raise, borrow, take, make, issue or give, as the case may be,
any loans, debentures, bonds or credits from or to any
persons.
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15. EVENTS OF DEFAULT
15.1 If any one or more of the following Events of Default shall occur, that
is to say:
(a) if the Company shall fail to pay or otherwise discharge when
due any sums of money, whether principal, interest, fees or
otherwise, payable under this Agreement;
(b) if the Company shall default in the payment of any principal
or interest or any other obligation for borrowed money
(whether or not to the Board) beyond any period of grace
provided in respect thereof;
(c) if any representation or warranty made in or in pursuance of
this Agreement or in any certificate, statement or other
document delivered in connection with the execution and
delivery hereof or in pursuance of this Agreement shall be or
become incorrect in any material respect;
(d) if the Company defaults in the due performance of any
undertaking, condition or obligation on its part to be
performed and observed hereunder (other than the payment of
any sum due hereunder) and such default (if capable of being
rectified) shall not be rectified for a period of thirty (30)
Days after the date of receipt by the Company of written
notice of such default from the Board;
(e) if a petition is presented in any court of competent
jurisdiction or a resolution is passed for the winding-up of
the Company or its parent or for the filing or any application
for placing the Company or its parent under judicial
management or any similar or analogous proceedings are taken
against any of them and are not withdrawn within thirty (30)
Days after being presented;
(f) if any encumbrancer or lessor shall take possession or a
receiver and/or manager, judicial manager, liquidator or other
similar officer is appointed of the whole of the under-taking,
property or assets, or any part thereof, of the Company or its
parent;
(g) if a distress or execution is levied or enforced upon or sued
out against any part of the property or assets of the Company
and is not discharged within thirty (30) Days of being levied
and the Board is of the reasonable opinion that such an event
will be materially prejudicial to the interests of the Board;
(h) if a judgement or order is made against the Company and is not
discharged within sixty (60) Days or if legal proceedings
suits or actions of any kind whatsoever (whether criminal or
civil) shall be instituted against the parent of the Company
and the Board is in that case of the reasonable opinion that
the said legal proceedings suits or actions will materially
affect the Company's ability to perform and observe, its
obligations under this Agreement;
(i) if the Company becomes insolvent or is unable or deemed unable
to pay its debts or admits in writing its inability to pay its
debts, as they mature, or enters into
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composition, compromise or arrangement with its creditors or
makes a general assignment for the benefit of its creditors
and the Board is of the opinion that any such event will be
materially prejudicial to the interests of the Board;
(j) If a winding-up petition is presented by or against the
guarantor(s) of any Guarantee(s) or analogous proceedings
shall be taken by or against it and is not discharged within
thirty (30) Days after being presented;
(k) if the Company ceases or threatens to cease to carry on its
business and the Board is of the opinion that it will
materially affect the ability of the Company to perform and
observe its obligations under this Agreement;
(l) if any license, consent or approval of any authority at any
time necessary to enable the Company to comply with and
perform its obligations under this Agreement to a material
extent shall be revoked, withheld or materially modified or
shall otherwise not be granted or fail to remain in full force
and effect;
(m) if any of the consents, authorities, approvals, waivers or
resolutions referred to in Clause 3 shall be modified in a
manner unacceptable to the Board or shall be wholly or partly
revoked, withdrawn, suspended or terminated or shall expire
and not be renewed or shall otherwise fail to remain in full
force and its effect and such circumstances are considered by
the Board to be material;
(n) if without the prior written consent of the Board there is any
change in the shareholding of the Company which will result in
STPL holding less than 51% of the share capital of the Company
or if there is any change in the shareholding of its parent;
(o) if a situation shall have arisen, which shall make it
improbable that the Company will be able to perform its
obligations under this Agreement;
(p) if the Board determines in its absolute discretion that its
interests under the Guarantee(s) is or are in jeopardy;
then and in any of such event, the Board may, by notice in writing to the
Company declare that an Event of Default has occurred and such declaration shall
be deemed to take effect from the date of such an Event of Default.
15.2 Upon the declaration by the Board that an Event of Default has
occurred:
(a) the whole of the principal sum drawndown and owing under the
Term Loan, interest thereon and all other sums agreed to be
paid under this Agreement shall immediately become due and
payable without any demand or notice of any kind by the Board
to the Company; and
(b) it shall be lawful for the Board to exercise all or any
rights, powers or remedies under this Agreement, the
Guarantee(s) given to the Board or any one or more of them.
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15.3 In the event of an occurrence of an Event of Default before the Term
Loan shall have been fully drawn or utilized hereunder, the Board's
obligations hereunder shall automatically and forthwith cease.
15.4 After the declaration by the Board that an Event of Default has
occurred, all moneys received or recovered by the Board (whether such
moneys shall have been received or recovered as a result of or arising
from its exercise of all or any rights, powers or remedies under this
Agreement, the Guarantee(s) or any one or more of them or by way of a
set-off or otherwise) shall be held by it and shall be applied as
follows:-
(a) Firstly, in or towards payment of all costs charges and
expenses. if any, incurred in enforcing this Agreement, the
Guarantee(s) or any one or more of them.
(b) Secondly, in or towards payment to the Board of all moneys and
liabilities for the time being due, owing or outstanding under
this Agreement and where such moneys and liabilities are of a
contingent nature, in or towards making full and adequate
provisions for payment of such moneys and liabilities as and
when they become due and payable; and
(c) Thirdly, any surplus shall be paid to the Company.
16. NOTICES
16.1 Except as otherwise expressly provided herein, any notice, request,
demand or other communication to be given or served hereunder by one of
the parties hereto to or on the other or others may be delivered at or
sent by prepaid registered post or by facsimile to the address or
addresses herein specified of the other party or parties and shall be
deemed to be duly served:
(a) if it is delivered, at the time of delivery,
(b) if it is sent by prepaid registered post, one (1) Day after
posting thereof, or
(c) if it is sent by facsimile, immediately after transmission
thereof, if the date of transmission is a Business Day, and if
such a date is not a Business Day, then the notice by
facsimile shall be deemed to be served on the next succeeding
day which is a Business Day.
Except as otherwise expressly provided herein, all notices, requests, demands or
other communications which are required by this Agreement to be in writing may
be made by facsimile.
16.2 For the purpose of this Clause 16 each of the parties hereto shall from
time to time notify the other party in writing of an address in
Singapore where such notice, request, demand or other communication as
aforesaid can be given or served and such notification shall be
effective only when it is actually received.
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In the absence of such notification, the notice, request, demand or
other communication aforesaid may be given or served at the addresses
of the respective parties as stated above.
17. WAIVER NOT TO PREJUDICE RIGHT OF BOARD
The Board may from time to time and at any time waive either
unconditionally or on such terms and conditions as it may deem fit any
breach by the Company of any of the undertakings stipulations terms and
conditions herein contained and any modification thereof but without
prejudice to its powers rights and remedies for enforcement thereof,
provided always that:-
(a) no neglect or forbearance of the Board to require and enforce
payment of any moneys hereunder or the performance and
observance of any undertaking stipulation term or condition
herein contained, nor any time which may be given to the
Company shall in any way prejudice or affect any of the rights
powers or remedies of the Board at any time afterwards to act
strictly in accordance with the provisions hereof,
(b) no such waiver of any such breach as aforesaid shall prejudice
the rights of the Board in respect of any other or subsequent
breach of any of the undertakings stipulations terms or
conditions aforesaid.
18. INDULGENCE OF THE BOARD
The liability of the Company hereunder shall not be impaired or
discharged by reason of any time or other indulgence being granted by
or with the consent of the Board to any person who or which may be in
any way liable to pay any of the moneys secured hereby by any other
security in favor of the Board or by reason of any arrangement being
entered into or composition accepted by the Board which has the effect
of modifying the operation of law or otherwise its rights and remedies
under the provisions of this Agreement.
19. SEVERABILITY
In case any provision in this Agreement shall be, or at any time shall
become invalid, illegal or unenforceable in any respect under any law,
such invalidity, illegality or unenforceability shall not in any way
affect or impair the other provisions of this Agreement but this
Agreement shall be construed as if such invalid or illegal or
unenforceable provision contained herein or therein did not form a part
of this Agreement.
20. GOVERNING LAW
This Agreement shall be governed by and construed in all respects in
accordance with the laws of the Republic of Singapore.
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21. MISCELLANEOUS
21.1 All legal and other professional fees, out-of-pocket expenses, charges
and expenses of and in connection with this Agreement shall be paid by
the Company.
21.2 The Company shall further pay all legal fees as between solicitor and
client and other costs and disbursements incurred in connection with or
demanding and enforcing payment of moneys due under this Agreement and
Guarantee(s) and otherwise howsoever in enforcing the performance of
any other undertakings stipulations terms conditions or provisions of
hereof and thereof.
21.3 A certificate signed by a duly authorized officer for the time being of
the Board as to the amount of moneys and liabilities for the time being
due to the Board or incurred by the Board under this Agreement and
Guarantee(s) shall be conclusive and binding on the Company, save for
any computation or clerical error.
21.4 This Agreement shall be binding upon the successors of the Company
and shall enure to the benefit of the Board and its successors and
assigns.
21.5 Any provision of this Agreement may be amended or supplemented only if
the Board and the Company so agree in writing prior to such amendment
and supplement.
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IN WITNESS WHEREOF the parties hereto have hereunto affixed their respective
common seals.
The Common Seal of
CHARTERED SEMICONDUCTOR
MANUFACTURING LTD was
hereunto affixed in
the presence of:-
/s/ Tan Xxxx Xxxx
------------------------------
Director
[SEAL]
/s/ Chua Xx Xx
------------------------------
Secretary
The Common Seal of the ECONOMIC DEVELOPMENT
BOARD was hereunto affixed in the presence
of:-
[Signature Illegible]
------------------------------
Chairman
[SEAL]
[Signature Illegible]
------------------------------
Secretary
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APPENDIX I
ECONOMIC DEVELOPMENT BOARD
000 Xxxxx Xxxxxx Xxxx
#00-00 Xxxxxxx Xxxx Xxxxx
Xxxxxxxxx 000000
Dear Sirs,
NOTICE OF DRAWING
TERM LOAN OF S$[ ]
Pursuant to Clause 5 of the EDB Loan Agreement dated in respect of the above
Term Loan we hereby give you notice for a Drawing of Dollars [ ]
($ ) on 19 .
We confirm--
(i) that the conditions precedent under Clause 3 of the EDB Loan
Agreement have been complied with in every respect;
(ii) that each of the representations and warranties contained in
Clause 12 of the EDB Loan Agreement are true and accurate in
all respects as though made on the date of this Notice with
reference to facts and circumstances presently subsisting and
will be true and accurate in all respects on the date of the
intended Drawing as though made on the date of the intended
Drawing with reference to facts and circumstances then
subsisting; and
(iii) that as at the date hereof no Event of Default has occurred
and no event has occurred which, with the giving of notice
and/or the lapse of time and/or upon you making any necessary
determination under Clause 15 of the EDB Loan Agreement, might
constitute an Event of Default, and we undertake that no Event
of Default and none of the events aforesaid will exist at the
date of the intended Drawing.
In addition to the above documents kindly let us know if you require copies of
any opinion approval or other documents.
Dated this day of 19
Yours faithfully
Director/Authorised Signatory
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