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EXHIBIT 10.2
DATED 9TH NOVEMBER, 1999
CHARTERED SILICON PARTNERS PTE LTD
AS BORROWER
ABN AMRO BANK N.V., SINGAPORE BRANCH
BAYERISCHE LANDESBANK GIROZENTRALE, SINGAPORE BRANCH
CITIBANK, N.A., SINGAPORE BRANCH
OVERSEAS UNION BANK LIMITED
THE SUMITOMO BANK, LIMITED, SINGAPORE BRANCH
AS ARRANGERS
DEN DANSKE BANK AKTIESELSKAB, SINGAPORE BRANCH
AS SENIOR LEAD MANAGER
THE BANK OF TOKYO-MITSUBISHI, LTD., SINGAPORE BRANCH
AS LEAD MANAGER
THE SANWA BANK, LIMITED, SINGAPORE BRANCH
AS MANAGER
ABN AMRO BANK N.V., SINGAPORE BRANCH
BAYERISCHE LANDESBANK GIROZENTRALE, SINGAPORE BRANCH
CITIBANK, N.A., SINGAPORE BRANCH
OVERSEAS UNION BANK LIMITED
THE SUMITOMO BANK, LIMITED, SINGAPORE BRANCH
THE SANWA BANK, LIMITED, SINGAPORE BRANCH
THE BANK OF TOKYO-MITSUBISHI, LTD., SINGAPORE BRANCH
DEN DANSKE BANK AKTIESELSKAB, SINGAPORE BRANCH
AS GUARANTOR BANKS
ABN AMRO BANK N.V., SINGAPORE BRANCH
BAYERISCHE LANDESBANK GIROZENTRALE, SINGAPORE BRANCH
CITIBANK, N.A., SINGAPORE BRANCH
OVERSEAS UNION BANK LIMITED
THE SUMITOMO BANK, LIMITED, SINGAPORE BRANCH
THE BANK OF TOKYO-MITSUBISHI, LTD., SINGAPORE BRANCH
DEN DANSKE BANK AKTIESELSKAB, SINGAPORE BRANCH
AS LENDING BANKS
- AND -
ABN AMRO BANK N.V., SINGAPORE BRANCH
AS AGENT
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SECOND SUPPLEMENTAL AGREEMENT
(BEING SUPPLEMENTAL TO THE CREDIT AGREEMENT FOR
(1) A S$236,800,000 GUARANTEE FACILITY
(2) A US$143,200,000 TERM LOAN FACILITY
DATED 12TH MARCH, 1998 AS SUPPLEMENTED BY
THE FIRST SUPPLEMENTAL AGREEMENT
DATED 14TH DECEMBER, 1998)
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XXXXX & XXXXXXXX,
00, XXXXXXXX XXXX, #00-00,
XXXX XXXXX,
XXXXXXXXX 000000.
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C O N T E N T S
CLAUSE HEADING PAGE
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1. INTERPRETATION 1
2. AMENDMENTS TO CREDIT AGREEMENT 2
3. REPRESENTATIONS AND WARRANTIES 7
4. INCORPORATION 8
5. EXPENSES AND STAMP DUTY 8
6. GOVERNING LAW 8
SCHEDULE 1 - THE GUARANTOR BANKS AND
THE LENDING BANKS 9
SCHEDULE 2 - CONDITIONS PRECEDENT 10
APPENDIX 1 - FORM OF ATI GUARANTEE 12
APPENDIX 2 - FORM OF HP GUARANTEE 25
APPENDIX 3 - FORM OF SECOND SUPPLEMENTAL
SHAREHOLDERS UNDERTAKING 38
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T H I S S E C O N D S U P P L E M E N T A L
A G R E E M E N T is made on 9th November, 0000 X X X X X X N:-
(1) CHARTERED SILICON PARTNERS PTE LTD (the "Borrower");
(2) ABN AMRO BANK N.V., SINGAPORE BRANCH, BAYERISCHE LANDESBANK GIROZENTRALE,
SINGAPORE BRANCH, CITIBANK, N.A., SINGAPORE BRANCH, OVERSEAS UNION BANK
LIMITED and THE SUMITOMO BANK, LIMITED, SINGAPORE BRANCH (the "Arrangers");
(3) THE SEVERAL BANKS AND FINANCIAL INSTITUTIONS named in Part A of Schedule 1
(the "Guarantor Banks");
(4) THE SEVERAL BANKS AND FINANCIAL INSTITUTIONS named in Part B of Schedule 1
(the "Lending Banks"); and
(5) ABN AMRO BANK N.V., SINGAPORE BRANCH, as agent for and on behalf of the
Banks (in such capacity, the "Agent", which expression shall include any of
its successors in such capacity),
and is supplemental to a Credit Agreement (the "Credit Agreement") dated 12th
March, 1998 made between (1) the Borrower, (2) the Arrangers, (3) the Guarantor
Banks, (4) the Lending Banks and (5) the Agent, as supplemented by a first
supplemental agreement (the "First Supplemental Agreement") dated 14th December,
1998 made between the parties to the Credit Agreement.
W H E R E A S:-
(A) Pursuant to the Credit Agreement, (1) the Guarantor Banks agreed to grant to
the Borrower a S$236,800,000 guarantee facility and (2) the Lending Banks agreed
to grant to the Borrower a US$143,200,000 term loan facility, upon the terms and
subject to the conditions of the Credit Agreement.
(B) Pursuant to the First Supplemental Agreement, the Borrower, the Arrangers,
the Guarantor Banks, the Lending Banks and the Agent have agreed to amend the
Credit Agreement to, inter alia, amend the applicable interest rate.
(C) The Borrower wishes to amend certain provisions of the Credit Agreement (as
supplemented by the First Supplemental Agreement) and has requested the
Arrangers, the Guarantor Banks, the Lending Banks and the Agent to make, and the
Arrangers, the Guarantor Banks, the Lending Banks and the Agent have agreed on
the terms and subject to the conditions set out in this Supplemental Agreement
to make, the amendments to the Credit Agreement (as supplemented by the First
Supplemental Agreement) set out in this Supplemental Agreement.
I T I S A G R E E D as follows:-
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1. INTERPRETATION
(A) In this Supplemental Agreement, except where the context otherwise
requires:-
"Amended and Restated Shareholders Undertaking" means the
amended and restated shareholders undertaking between (1) the
Borrower, as borrower, (2) the Shareholders, as shareholders,
and (3) the Agent, as agent, substantially in the form of the
Schedule to the Second Supplemental Shareholders Undertaking
(or in such other form as may be approved by the Agent and the
Banks);
"ATI Guarantee" means a guarantee from Agilent Technologies Inc. in favour
of the Agent, substantially in the form of Appendix 1;
"Effective Date" has the meaning ascribed to it in Clause 2;
"HP Guarantee" means a guarantee from Hewlett-Packard Company in favour of
the Agent, substantially in the form of Appendix 2;
"Second Supplemental Shareholders Undertaking" means the
second supplemental shareholders undertaking between (1) the
Borrower, as borrower, (2) the Shareholders, as shareholders,
and (3) the Agent, as agent, substantially in the form of
Appendix 3 (or in such other form as may be approved by the
Agent and the Banks); and
"Supplemental Documents" means the ATI Guarantee, the HP Guarantee, this
Supplemental Agreement and the Second Supplemental Shareholders
Undertaking.
(B) All terms and references used in this Supplemental Agreement and which are
defined or construed in the Credit Agreement but are not defined or construed in
this Supplemental Agreement shall have the same meaning and construction in this
Supplemental Agreement. All references hereafter in this Supplemental Agreement
to the Credit Agreement shall be to the Credit Agreement as amended,
supplemented or modified by the First Supplemental Agreement.
(C) The headings in this Supplemental Agreement are inserted for convenience
only and shall be ignored in construing this Supplemental Agreement. Unless
otherwise stated, references to the "Appendices", "Clauses" and "Schedules" are
to be construed as references to the appendices to, the clauses of, and the
schedules to this Supplemental Agreement.
2. AMENDMENTS TO CREDIT AGREEMENT
The Borrower and each other party to this Supplemental Agreement agree that
with effect from November, 1999 (or such other date as may be agreed between
the Borrower and each other party to this Supplemental Agreement) (the
"Effective Date"), the Credit Agreement shall be amended as follows:-
(1) Clause 1(A) of the Credit Agreement shall be amended as
follows:-
(a) by inserting the following new definitions:-
" "ATE" means Agilent Technologies Europe B.V.,
a company
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incorporated in the Netherlands;";
" "ATI" means Agilent Technologies Inc., a company
incorporated in Delaware, United States of America;";
" "ATI Guarantee" means the guarantee from
ATI in favour of the Agent, substantially in
the identified form which shall be effective
for the period commencing on and from 1st
April, 2001 and ending on 31st March,
2003;";
" "HP Guarantee" means the guarantee from HP in favour of
the Agent, substantially in the identified form;";
" "Security Documents" means the ATI
Guarantee, the HP Guarantee and the
Shareholders Undertaking and any and every
other document from time to time executed to
guarantee, secure or otherwise assure the
performance of the obligations of the
Borrower under or in connection with this
Agreement (and any reference to a Security
Document shall be a reference to that
Security Document as from time to time
amended, modified or supplemented and any
document which amends, modifies or
supplements that Security Document);"; and
" "Shareholder Obligors" means:-
(i) the Shareholders;
(ii) (for the period commencing on and
from the date hereof and for so long
as HP has any obligations under the
HP Guarantee) HP; and
(iii) (for the period commencing on and
from 1st April, 2001 and for so long
as ATI has any obligations under the
ATI Guarantee) ATI;";
(b) the definition of "Financing Documents"
shall be amended by substituting the words
"Shareholders Undertaking" appearing in
lines 1 and 2 thereof with the words
"Security Documents";
(c) the definition of "Equity" shall be amended
by inserting the words "but without double
counting," before the words "the sum"
appearing in line 1 thereof;
(d) the definition of "HPE" shall be deleted in its entirety;
(e) the definition of "Joint Venture Agreement" shall be
deleted in its entirety and substituted with the following
definition:-
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" "Joint Venture Agreement" means the joint
venture agreement dated 13th March, 1997
made between (1) CSM, (2) EDBI, and (3) Hewlett-Packard
Europe B.V., as amended by an amendment agreement No. 1
dated 4th July, 1997 and an amendment agreement No.2 dated
1st October, 1999 made between (a) CSM, (b) EDBI and (c)
Hewlett-Packard Europe B.V. and as further amended by a deed
of accession and ratification dated made between CSM,
EDBI, HPE and ATE (and any reference to the Joint Venture
Agreement includes the Joint Venture Agreement as from time
to time amended, modified or supplemented and any document
which amends, modifies or supplements the Joint Venture
Agreement) and all references to "the date of the Joint
Venture Agreement" shall mean 13th March, 1997;"; and
(f) the definition of "Shareholders" shall be amended by
substituting the word "HPE" with the word "ATE";
(2) Clause 5(E) of the Credit Agreement shall be amended by inserting
the word "Obligor" after the word "Shareholder" appearing in
lines 5, 9 and 15 thereof;
(3) Clause 14 of the Credit Agreement shall be amended as follows:-
(a) paragraph (16)(b) shall be amended by substituting the word
"HP" appearing in line 1 thereof with the word "ATI"; and
(b) paragraph (17)(a) shall be amended as follows:-
(i) by inserting the words "at the date of the relevant
Information Package" before the word "(a)" appearing in
line 1 thereof; and
(ii) by substituting the word "the" appearing before the
words "Information Package" appearing in lines 1 and 2
thereof with the word "any"; and
(c) paragraph (17)(b) shall be amended by substituting the word
"the" appearing after the words "forecasts in" appearing in
line 1 thereof with the word "such";
(4) Clause 17(A) of the Credit Agreement shall be amended as
follows:-
(a) wherever the words "other than a Shareholder which has
discharged all its obligations under Clause 2(A) of the
Shareholders Undertaking" shall appear, there shall be added
the words "or ATI which has discharged all its obligations
under the ATI Guarantee or HP which has discharged all its
obligations under the HP Guarantee";
(b) paragraph (1) shall be amended as follows:-
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(i) by inserting the word "Obligor" after the word
"Shareholder" appearing in line 3 thereof; and
(ii) by substituting the words "Shareholders Undertaking"
appearing in line 4 thereof with the words "Financing
Documents to which it is a party";
(c) paragraph (2)(b) shall be amended as follows:-
(i) by inserting the word "Obligor" after the word
"Shareholder" appearing in lines 1 and 3 thereof; and
(ii) by substituting the words "Shareholders Undertaking"
appearing in line 4 thereof with the words "Financing
Documents to which it is a party";
(d) paragraph 3(b) shall be amended as follows:-
(i) by inserting the word "Obligor" after the word
"Shareholder" appearing after the word "any" in line 2
thereof; and
(ii) by substituting the words "Shareholders Undertaking"
appearing in lines 2 and 3 thereof with the words
"Financing Documents to which it is a party";
(e) paragraph 4 shall be amended by inserting the word "Obligor"
after the word "Shareholder" appearing twice in line 2
thereof;
(f) paragraph 5 shall be amended by inserting the word "Obligor"
after the word "Shareholder" appearing once in line 1 and
twice in line 18 thereof;
(g) paragraph 6 shall be amended by inserting the word "Obligor"
after the word "Shareholder" appearing twice in line 4
thereof;
(h) paragraph 7 shall be amended by inserting the word "Obligor"
after the word "Shareholder" appearing in lines 2 and 3
thereof;
(i) paragraph 8 shall be amended by inserting the word "Obligor"
after the word "Shareholder" appearing in lines 2, 3, 11, 12
and 15 thereof;
(j) paragraph 9 shall be amended by inserting the word "Obligor"
after the word "Shareholder" appearing in lines 1 and 2
thereof;
(k) paragraph 10 shall be amended by inserting the word
"Obligor" after the word "Shareholder" appearing in lines 4
and 5 thereof;
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(l) paragraph 12 shall be amended as follows:-
(i) by inserting the word "Obligor" after the word
"Shareholder" appearing in line 4 thereof; and
(ii) by substituting the words "Shareholders Undertaking"
appearing in line 5 thereof with the words "Financing
Documents to which it is a party";
(m) paragraph 13 shall be amended as follows:-
(i) by substituting the words "Shareholders Undertaking"
appearing in line 4 thereof with the words "Financing
Documents to which any of the Shareholder Obligors is a
party"; and
(ii) by inserting the word "Obligor" after the word
"Shareholder" appearing in lines 5 and 7 thereof;
(n) paragraph 14 shall be amended as follows:-
(i) by inserting the word "Obligor" after the word
"Shareholder" appearing in lines 7 and 11 thereof; and
(ii) by substituting the words "Shareholders Undertaking"
appearing in line 9 thereof with the words "Financing
Documents to which it is a party";
(o) paragraph 20(b) shall be amended by substituting the word
"HP" appearing in line 1 thereof with the word "ATI";
(p) paragraph 21 shall be amended by inserting the word
"Obligor" after the word "Shareholder" appearing in lines 1
and 2 thereof; and
(q) paragraph 23 shall be amended as follows:-
(i) by inserting the word "Obligor" after the word
"Shareholder" appearing in lines 6 and 7 thereof; and
(ii) by substituting the words "Shareholders Undertaking"
appearing in lines 10 and 11 thereof with the words
"Financing Documents to which it is a party"; and
(5) Clause 20 of the Credit Agreement shall be amended as follows:-
(a) paragraph (B)(1) shall be amended by inserting the word
"Obligor" after the word "Shareholder" appearing in line 3
thereof;
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(b) paragraph (C)(5) shall be amended by inserting the word
"Obligor" after the word "Shareholder" appearing in line 4
thereof;
(c) paragraph (D)(1) shall be amended by inserting the word
"Obligor" after the word "Shareholder" appearing in line 4
thereof;
(d) paragraph (D)(2) shall be amended by inserting the word
"Obligor" after the word "Shareholder" appearing in lines 3
and 4 thereof;
(e) paragraph (G) shall be amended by substituting the word
"Shareholders" appearing in line 5 thereof with the words
"Shareholder Obligors";
(f) paragraph (G)(2) shall be amended by inserting the word
"Obligor" after the word "Shareholder" appearing in line 5
thereof; and
(g) paragraph (G)(3) shall be amended by inserting the word
"Obligor" after the word "Shareholder" appearing in line 3
thereof,
provided that (I) on or before the Effective Date, the Agent has notified the
Borrower and the Banks that it has received (in form and substance satisfactory
to it) each of the documents specified in Schedule 2 and (II) on the Effective
Date (aa) the representations and warranties contained in Clause 14 of the
Credit Agreement (as amended by this Supplemental Agreement) and in Clause 3 of
this Supplemental Agreement are true and correct in all respects as of the
Effective Date as if made on the Effective Date with respect to the facts and
circumstances existing at such date and (bb) no Event of Default or Potential
Event of Default has occurred.
3. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to and for the benefit of
each other party to this Supplemental Agreement that:-
(1) all action, conditions and things required to be
taken, fulfilled and done (including the obtaining of
any necessary consents) in order (a) to enable it
lawfully to enter into, exercise its rights and
perform and comply with its obligations under the
Supplemental Documents and (b) to make the
Supplemental Documents admissible in evidence in the
courts of Singapore, have been taken, fulfilled and
done;
(2) its entry into, exercise of its rights and/or
performance of or compliance with its obligations
under the Supplemental Documents do not and will not
violate (a) any law to which it is subject, (b) its
Memorandum and Articles of Association or (c) to an
extent or in a manner which has or will have a
material adverse effect on it, any agreement to which
it is a party or which
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is binding on it or its assets; and
(3) this Supplemental Agreement, the Credit Agreement (as
amended by this Supplemental Agreement) and the other
Supplemental Documents constitute its valid, binding
and enforceable obligations.
4. INCORPORATION
(A) The Credit Agreement and this Supplemental Agreement shall be
read and construed as one document and this Supplemental Agreement shall be
considered as part of the Credit Agreement and, without prejudice to the
generality of the foregoing, where the context so allows, references in the
Credit Agreement to "this Agreement", howsoever expressed, shall be read and
construed as references to the Credit Agreement as amended, modified or
supplemented by this Supplemental Agreement.
(B) Except to the extent expressly amended by the provisions of
this Supplemental Agreement, the terms and conditions of the Credit Agreement
and all other instruments and agreements executed, delivered or entered into
thereunder or pursuant thereto are hereby confirmed and shall remain in full
force and effect.
5. EXPENSES AND STAMP DUTY
The Borrower shall pay:-
(i) on demand, all costs and expenses (including legal
fees and all goods and services, value added and
other duties or taxes payable on such costs and
expenses) reasonably incurred by the Agent and/or the
Arrangers in connection with the preparation,
negotiation or entry into of the Supplemental
Documents; and
(ii) promptly, and in any event before any interest or
penalty becomes payable, any stamp, goods and
services, value added, documentary, registration or
similar duty or tax payable in connection with the
entry into, enforcement and admissibility in evidence
of the Supplemental Documents and shall indemnify the
Agent, the Arrangers, the Guarantor Banks and the
Lending Banks against any liability with respect to
or resulting from any delay in paying or omission to
pay any such duty or tax.
6. GOVERNING LAW
This Supplemental Agreement shall be governed by, and
construed in accordance with, the laws of Singapore.
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S C H E D U L E 1
Part A - Guarantor Banks
1. ABN AMRO Bank, N.V., Singapore Branch
2. Bayerische Landesbank Girozentrale, Singapore Branch
3. Citibank, N.A., Singapore Branch
4. Overseas Union Bank Limited
5. The Sumitomo Bank, Limited, Singapore Branch
6. The Sanwa Bank, Limited, Singapore Branch
7. The Bank of Tokyo-Mitsubishi, Ltd., Singapore Branch
8. Den Danske Bank Aktieselskab, Singapore Branch
Part B - Lending Banks
1. ABN AMRO Bank, N.V., Singapore Branch
2. Bayerische Landesbank Girozentrale, Singapore Branch
3. Citibank, N.A., Singapore Branch
4. Overseas Union Bank Limited
5. The Sumitomo Bank, Limited, Singapore Branch
6. The Bank of Tokyo-Mitsubishi, Ltd., Singapore Branch
7. Den Danske Bank Aktieselskab, Singapore Branch
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S C H E D U L E 2
CONDITIONS PRECEDENT
1. A certified copy of each of (1) the certificate of
incorporation (or its equivalent) of each of ATI, ATE and HP, (2) the Memorandum
and Articles of Association (or its equivalent) of each of ATI, ATE and HP.
2. A copy, certified true by an authorised officer of the
Borrower as being in full force and effect on the date thereof, of:-
(1) all actions required to be taken by the Borrower (a)
authorising the entry into of the Supplemental
Documents and (b) authorising appropriate persons to
execute and deliver the Supplemental Documents on
behalf of the Borrower and to take any action
contemplated in the Supplemental Documents; and
(2) all necessary consents required by the Borrower for
the execution, delivery and performance of the
Supplemental Documents or, if no such consents are
necessary, a certificate to that effect from a person
duly authorised by the Borrower so to certify.
3. Specimen signatures of the respective persons referred to in
paragraph 2 above, duly certified by an authorised officer of the Borrower,
together with certificates of incumbency, also duly certified, in respect of
each such person.
4. A copy, certified true by an authorised officer of each of
ATE, ATI, CSM, EDBI and HP as being in full force and effect on the date
thereof, of:-
(1) all actions required to be taken by that party (a)
authorising the entry into of the Supplemental
Documents to which it is a party and (b) authorising
appropriate persons to execute and deliver the
Supplemental Documents to which it is a party on
behalf of that party and to take any action
contemplated in the Supplemental Documents to which
it is a party; and
(2) all necessary consents required by that party for the
execution, delivery and performance of the
Supplemental Documents to which it is a party or, if
no such consents are necessary, a certificate to that
effect from a person duly authorised by that party so
to certify.
5. Specimen signatures of the respective persons referred to in
paragraph 4 above, duly certified by an authorised officer of each of ATE, ATI,
CSM, EDBI and HP, together with certificates of incumbency, also duly certified,
in respect of each such person.
6. The Second Supplemental Shareholders Undertaking, together
with all documents which may be required or necessary for the purposes of
perfecting the Second Supplemental Shareholders Undertaking, duly executed by
the Borrower, each of ATE, CSM and EDBI and the Agent.
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7. The ATI Guarantee, together with all documents which may be
required or necessary for the purposes of perfecting the ATI Guarantee, duly
executed by ATI.
8. The HP Guarantee, together with all documents which may be
required or necessary for the purposes of perfecting the HP Guarantee, duly
executed by HP.
9. Legal opinions dated on or after the date of this
Supplemental Agreement from:-
(1) Xxxxx & Xxxxxxx/Xxxxx & XxXxxxxx, legal advisers in
the Netherlands to the Arrangers, the Banks and the
Agent, as to such matters of the laws of the
Netherlands relevant to the Second Supplemental
Shareholders Undertaking as the Agent may request;
(2) Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, legal advisers in
the United States of America to the Arrangers, the
Banks and the Agent, as to such matters of the laws
of the United States of America relevant to the ATI
Guarantee and the HP Guarantee as the Agent may
request; and
(3) Xxxxx & Xxxxxxxx, legal advisers in Singapore to the
Arrangers, the Banks and the Agent, as to such
matters of the laws of Singapore relevant to the
Supplemental Documents as the Agent may request.
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A P P E N D I X 1
FORM OF ATI GUARANTEE
DATED NOVEMBER, 1999
AGILENT TECHNOLOGIES, INC.
AS ATI
- AND -
ABN AMRO BANK N.V., SINGAPORE BRANCH
AS AGENT
-------------------------------------------------
ATI GUARANTEE
-------------------------------------------------
XXXXX & XXXXXXXX,
00, XXXXXXXX XXXX, #00-00,
XXXX XXXXX,
XXXXXXXXX 000000.
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C O N T E N T S
CLAUSE HEADING PAGE
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1. INTERPRETATION
2. UNDERTAKINGS BY ATI
3. REPRESENTATIONS AND WARRANTIES
4. UNDERTAKINGS
5. PAYMENTS
6. NATURE OF RIGHTS AND OBLIGATIONS
7. EXPENSES
8. BENEFIT OF AGREEMENT
9. WAIVERS
10. COMMUNICATIONS
11. PARTIAL INVALIDITY
12. GOVERNING LAW AND JURISDICTION
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T H I S G U A R A N T E E is made on November, 0000
X X X X X X N:-
(1) AGILENT TECHNOLOGIES, INC ("ATI"), a company incorporated
in Delaware with its registered office at 0000, Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, County of New Castle,
Delaware; and
(2) ABN AMRO BANK N.V., SINGAPORE BRANCH, a banking corporation
incorporated in the Netherlands and acting through its
Singapore branch at 00, Xxxxxx Xxxxxx, Xxxxxxxxx 000000, as
agent for and on behalf of the Banks (in such capacity, the
"Agent", which expression shall include any of its successors
in such capacity).
W H E R E A S:-
(A) By a Credit Agreement (the Credit Agreement as amended by the
First Supplemental Agreement (as defined below) and the Second Supplemental
Agreement (as defined below), the "Credit Agreement") dated 12th March, 1998
made between (1) Chartered Silicon Partners Pte Ltd (the "Borrower"), a company
incorporated in Singapore with its registered office at 00, Xxxxxxxxx Xxxxxxxxxx
Xxxx X, Xxxxxx 0, Xxxxxxxxx 000000, as borrower, (2) ABN AMRO Bank N.V.,
Singapore Branch, Bayerische Landesbank Girozentrale, Singapore Branch,
Citibank, N.A., Singapore Branch, Overseas Union Bank Limited and The Sumitomo
Bank, Limited, Singapore Branch, as arrangers, (3) the Guarantor Banks named
therein (the "Guarantor Banks"), as guarantor banks, (4) the Lending Banks named
therein (the "Lending Banks"), as lending banks, and (5) the Agent, as agent,
the Guarantor Banks agreed to grant to the Borrower a S$236,800,000 guarantee
facility and the Lending Banks agreed to grant to the Borrower a US$143,200,000
term loan facility, upon the terms and subject to the conditions of the Credit
Agreement.
(B) By a Shareholders Undertaking dated 1st July, 1998 made
between (1) the Borrower, as borrower, (2) the Shareholders named therein, as
shareholders, and (3) the Agent, as agent, as amended and restated by the First
Supplemental Shareholders Undertaking (as defined below) and the Second
Supplemental Shareholders Undertaking (as defined below) (the "Shareholders
Undertaking"), the Shareholders have agreed to give the undertakings therein
contained to the Agent and the Banks as security for the obligations of the
Borrower under or in connection with the Credit Agreement.
(C) ATI (after giving due consideration to the terms and
conditions of the Financing Documents (as defined below) and satisfying itself
that there are reasonable grounds for believing that the entry into by it of
this Guarantee will benefit it) has agreed to enter into this Guarantee and give
the undertakings provided in this Guarantee.
I T I S A G R E E D as follows:-
1. INTERPRETATION
(A) Definitions: In this Guarantee, except to the extent that the
context requires otherwise:-
"ATE" means Agilent Technologies Europe B.V., a company
incorporated in the Netherlands;
"Financing Documents" means the Credit Agreement and the
Security Documents;
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"First Supplemental Agreement" means the first supplemental
agreement dated 14th December, 1998 between the parties to the
Credit Agreement, being supplemental to the Credit Agreement;
"First Supplemental Shareholders Undertaking" means the
supplemental shareholders' undertaking dated 16th December,
1998 made between the parties to the Shareholders Undertaking;
"Second Supplemental Shareholders Undertaking" means the
supplemental shareholders' undertaking dated November,
1999 made between the parties to the Shareholders Undertaking;
"Second Supplemental Agreement" means the second supplemental
agreement dated November, 1999 between the parties to the
Credit Agreement, being
supplemental to the Credit Agreement as supplemented by the
First Supplemental Agreement; and
"Termination Date" means, in relation to ATI, the date on
which ATI has fulfilled all its obligations under Clause 2(A).
(B) Financing Documents: All terms and references used in this
Guarantee and which are defined or construed in the Financing Documents but are
not defined or construed in this Guarantee shall have the same meaning and
construction in this Guarantee. Any reference in this Guarantee to a Financing
Document shall include that Financing Document as amended, modified or
supplemented from time to time and any document which amends, modifies or
supplements that Financing Document.
(C) This Guarantee: Except to the extent that the context
otherwise requires, any reference to "this Guarantee" includes this Guarantee as
from time to time amended, modified or supplemented and any document which is
supplemental hereto.
(D) Headings and Clauses: The headings in this Guarantee are
inserted for convenience only and shall be ignored in construing this Guarantee.
Unless the context otherwise requires, words denoting the singular number only
shall include the plural and vice versa. References to a statute shall be deemed
to be references to that statute as from time to time amended or re-enacted.
Save as otherwise indicated, references to "Clauses" are to be construed as
references to the clauses of this Guarantee.
2. UNDERTAKINGS BY ATI
(A) Guarantee: In consideration of the Banks agreeing to grant
their respective shares of the Facility to the Borrower and/or the Banks
otherwise acting under or in connection with the Financing Documents (copies of
which ATI acknowledges receipt), ATI hereby unconditionally and irrevocably
guarantees to the Agent and each of the Banks, as a continuing guarantee subject
to Clause 2(C), the due and punctual performance by ATE of all its obligations,
commitments and undertakings under or pursuant to the Shareholders Undertaking,
including but not limited to, the due and punctual payment by ATE of all sums
whatsoever which are or at any time may be or become due from or owing by ATE
under the Shareholders Undertaking, including without limitation, under Clause
2(A)(1), 2(A)(2) and/or 2(A)(3) of the Shareholders Undertaking, and
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unconditionally and irrevocably undertakes and agrees that, if for any reason
ATE does not perform any of its obligations under the Shareholders Undertaking
(including the payment of any sums thereunder) by the time, on the date, in the
currency and otherwise in the manner specified in the Shareholders Undertaking,
ATI will, on demand by the Agent or any of the Banks, perform such obligation on
behalf of ATE (including, without limitation, paying on behalf of ATE, or
ensuring the payment of, such sums to the Borrower (in the case of any such sums
due under Clause 2(A)(2) and/or Clause 2(A)(3) of the Shareholders Undertaking)
or undertaking on behalf of ATE, or ensuring the undertaking of, the relevant
expenditure (in the case of any such sums due under Clause 2(A)(1) of the
Shareholders Undertaking)).
(B) Obligations Unconditional: The obligations of ATI under this
Clause are unconditional and absolute, irrespective of (1) any event, however
fundamental, outside the control of the Borrower or ATI or any other person
preventing the Borrower from achieving Completion by the Scheduled Completion
Date, (2) any winding-up, liquidation or dissolution of the Borrower, (3) any
Event of Default or action taken by the Agent or any Bank under the Financing
Documents or any enforcement of any security constituted by any Financing
Document, (4) whether the Project or the business of the Borrower is being
carried on by any receiver, judicial manager or other person and (5) any other
circumstances whatsoever.
(C) Termination: ATI's obligations under this Agreement shall
take effect on and from 1st April, 2001 and shall terminate on 31st March, 2003
(the "End Date") without prejudice to any obligation accrued before the End Date
and Provided That the representation and warranty made by ATI in Clause 3(11)
below and repeated in accordance with the provisions of Clause 3(12) below shall
take effect from the date of this Agreement.
3. REPRESENTATIONS AND WARRANTIES
(A) ATI represents and warrants to and for the benefit of the
Agent and each of the Banks that:-
(1) Status: it is a company duly incorporated and validly
existing under the laws of the State of Delaware, and has
the power and authority to own its assets and to conduct the
business which it conducts;
(2) Powers: it has the power to enter into, exercise its rights
and perform and comply with its obligations under this
Guarantee;
(3) Authorisations and Consents: all action, conditions and
things required to be taken, fulfilled and done (including
the obtaining of any necessary consents) in order (a) to
enable it lawfully to enter into, exercise its rights and
perform and comply with its obligations under this
Guarantee, (b) to ensure that those obligations are valid,
legally binding and enforceable, and (c) to make this
Guarantee admissible in evidence in the courts of Singapore
and the State of Delaware have been taken, fulfilled and
done;
(4) Non-Violation of Laws: its entry into, exercise of its
rights and/or performance of or compliance with its
obligations under this Guarantee do not and will not
violate, or exceed any power or restriction granted or
imposed by, (a) any law to which it is subject or (b) its
constitutive
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documents;
(5) Obligations Binding: its obligations under this Guarantee
are valid, binding and enforceable;
(6) Non-Violation of Other Agreements: its entry into, exercise
of its rights and/or performance of or compliance with its
obligations under this Guarantee do not and will not
violate, to an extent or in a manner which has or will have
a material adverse effect on it, any agreement to which it
is a party or which is binding on it or its assets;
(7) No Material Adverse Change: there has been no material
adverse change in its financial condition or operations
since the date of its last published annual report;
(8) Litigation: no litigation, arbitration or administrative
proceeding is current or pending (a) to restrain the entry
into, exercise of its rights under and/or performance or
enforcement of or compliance with its obligations under this
Guarantee or (b) which has or will have a material adverse
effect on it;
(9) Winding-up: no meeting has been convened for its winding-up
or for the appointment of a receiver, trustee, judicial
manager or similar officer of it, its assets or any of them,
no such step is intended by it and, so far as it is aware,
no petition, application or the like is outstanding for its
winding-up or for the appointment of a receiver, trustee,
judicial manager or similar officer of it, its assets or any
of them;
(10) No Default: as far as it is aware after having made all due
and proper enquiries, no Event of Default or Potential Event
of Default has occurred, and it is not in breach of or
default under any agreement to an extent or in a manner
which has or will have a material adverse effect on it;
(11) Information Pack: at 13th October, 1999, the information in
the Information Pack relating to, and provided by, it was
true, complete and accurate in all material respects; and
(12) Repetition: each of the above representations and warranties
will be correct and complied with in all material respects
at all times up to the Termination Date as if repeated then
by reference to the then existing circumstances.
4. UNDERTAKINGS
ATI undertakes that, at all times prior to the Termination
Date:-
(1) it will, as soon as available and in any event within 180
days after the end of each of its financial years
(beginning with the current one), deliver, or cause to be
delivered, to the Agent enough copies for the Banks (on
the
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basis of one copy for each Bank) of its published
annual report as at the end of and for that
financial year;
(2) Litigation: it will, as soon as reasonably
practicable, deliver to the Agent for distribution to
the Banks details of any litigation, arbitration or
administrative proceeding which, if to its knowledge
had been current or pending at the date of this
Guarantee, would have rendered the representation and
warranty in Clause 3(8) incorrect;
(3) Other Information: it will, as soon as reasonably
practicable, deliver to the Agent for distribution to
the Banks such other information relating to its
financial condition or business of it as the Agent
(or any Bank through the Agent) may from time to time
reasonably require (except for information of a
proprietary nature or which is reasonably regarded by
it as confidential); and
(4) Further Assurance: it will from time to time on
reasonable request by the Agent acting on the
instructions of the Majority Banks do or procure the
doing of all such acts and will execute or procure
the execution of all such documents as may be
reasonably necessary for giving full effect to this
Guarantee or securing to the Agent and the Banks the
full benefits of all rights, powers and remedies
conferred upon the Agent and the Banks in this
Guarantee.
5. PAYMENTS
(A) Taxes: (1) All sums payable by ATI under this Guarantee shall
be paid (1) free of any restriction or condition, (2) free and clear of and
(except to the extent required by law) without any deduction or withholding for
or on account of any tax and (3) without deduction or withholding (except to the
extent required by law) on account of any other amount, whether by way of
set-off or otherwise.
(2) If ATI or any other person (whether or not a party to, or on
behalf of a party to, this Guarantee) must at any time deduct or withhold any
tax or other amount from any sum paid or payable by, or received or receivable
from, ATI under this Guarantee, ATI shall pay such additional amount as is
necessary to ensure that the Agent or, as the case may be, the Bank to which
that sum is due, receives on the due date and retains (free from any liability
other than tax on its own overall net income) a net sum equal to what it would
have received and so retained had no such deduction or withholding been required
or made.
(3) If ATI or any other person (whether or not a party to, or on
behalf of a party to, this Guarantee) must at any time pay any tax or other
amount on, or calculated by reference to, any sum received or receivable by the
Agent or, as the case may be, any of the Banks from ATI under this Guarantee
(except for a payment by the Agent or a Bank of tax on its own overall net
income), ATI shall pay or procure the payment of that tax or other amount before
any interest or penalty becomes payable or, if that tax or other amount is
payable and paid by the Agent or any Bank, shall reimburse it on demand for the
amount paid by it.
(4) Within 30 days after paying any sum from which it is required
by law to make any deduction or withholding, and within 30 days after the due
date of payment of any tax or other
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amount which it is required by paragraph (3) above to pay, ATI shall deliver to
the Agent evidence reasonably satisfactory to the Agent or, as the case may be,
the relevant Bank of that deduction, withholding or payment and (where
remittance is required) of the remittance thereof to the relevant taxing or
other authority.
(5) As soon as ATI is aware that any such deduction, withholding
or payment is required (or any change in any such requirement), ATI shall notify
the Agent.
(B) Goods and Services Tax: ATI shall also pay to the Agent and
each Bank on demand, in addition to any amount payable by ATI under this
Guarantee, any goods and services, value added or other similar tax payable in
respect of that amount (and any reference in this Guarantee to that amount shall
be deemed to include any such taxes payable in addition to it).
(C) Refund of Tax Credits: If:-
(1) ATI makes a payment under sub-Clause (A)(2) or (3) (a
"Tax Payment") in respect of a payment to a Bank
under this Guarantee; and
(2) that Bank determines in its absolute discretion that
it has obtained a refund of tax or obtained and used
a credit against tax on its overall net income (a
"Tax Credit") which that Bank in its absolute
discretion is able to identify as attributable to
that Tax Payment,
then, if in its absolute discretion it can do so without any adverse
consequences for that Bank, that Bank shall reimburse ATI such amount as that
Bank in its absolute discretion determines to be such proportion of that Tax
Credit as will leave that Bank (after that reimbursement) in no better or worse
position in respect of its worldwide tax liabilities than it would have been in
if no Tax Payment had been required. A Bank shall have an absolute discretion as
to whether to claim any Tax Credit (and, if it does claim, the extent, order and
manner in which it does so) and whether any amount is due from it under this
sub-Clause (C) (and, if so, what amount and when). No Bank shall be obliged to
disclose any information regarding its tax affairs and computations.
(D) Currency Indemnity: (1) Any amount received or recovered by
the Agent or any Bank in respect of any sum expressed to be due to it from ATI
under or in connection with this Guarantee in a currency (such currency being
referred to as the "Relevant Currency") other than the currency in which such
sum is expressed to be due under this Guarantee (such currency being referred to
as the "Currency of Account") whether as a result of, or of the enforcement of,
a judgment or order of a court or tribunal of any jurisdiction, in the
winding-up of ATI or otherwise, shall only constitute a discharge to ATI to the
extent of the amount in the Currency of Account which the recipient is able, in
accordance with its usual practice, to purchase with the amount of the Relevant
Currency so received or recovered 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).
(2) If that amount in the Currency of Account is less than the
amount of the Currency of Account due to the recipient under or in connection
with this Guarantee, ATI shall indemnify it against any loss sustained by it as
a result. In any event, ATI shall indemnify the recipient against the cost of
making any such purchase. For the purpose of this sub-Clause (D), it will be
sufficient for the recipient to demonstrate that it would have suffered a loss
had an actual exchange or purchase been made.
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(3) Each of the indemnities in this sub-Clause (D) constitutes a
separate and independent obligation from the other obligations in this
Guarantee, shall give rise to a separate and independent cause of action, shall
apply irrespective of any indulgence granted by the Agent, any Arranger and/or
any Bank 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 Guarantee or any other judgment or order.
6. NATURE OF RIGHTS AND OBLIGATIONS
(A) No Release: The obligations of ATI under this Guarantee
(excluding, for the avoidance of doubt, any obligation of ATI under this
Guarantee which has been discharged) shall not be discharged, impaired or
otherwise affected by any act, omission, matter or thing which, but for this
sub-Clause (A), may operate to release or otherwise exonerate ATI from its
obligations under this Guarantee in whole or in part, including without
limitation and whether or not known to it or any other person:-
(1) any variation in or to the Project;
(2) any time, indulgence, concession waiver or consent at
any time given by the Agent and/or any of the Banks
to the Borrower, ATE, ATI or any other person;
(3) any amendment or supplement to any provision of any
Financing Document or any other agreement, security,
guarantee or indemnity relating to the Financing
Documents;
(4) the making or the absence of any demand on the
Borrower, ATI or any other person for payment;
(5) the enforcement or absence of enforcement of or
release of any of the Financing Documents or any
other agreement, security, guarantee or indemnity
relating to the Financing Documents;
(6) the winding-up, insolvency, bankruptcy, amalgamation,
reconstruction or reorganisation of the Borrower,
ATE, ATI or any other person;
(7) the illegality, invalidity or unenforceability of or
any defect in any provision of any Financing Document
or any other agreement, security, guarantee or
indemnity or any of the obligations of the Borrower,
ATE, ATI or any other person thereunder, whether on
the grounds of ultra xxxxx, not being in the
interests of the Borrower, ATE, or any other person,
not having been duly authorised, executed or
delivered by the Borrower, ATE or any other person or
for any reason whatsoever; or
(8) any other act, event or omission which but for this
provision would or might operate to impair or
discharge the obligations of ATI under this
Guarantee.
(B) Continuing Obligations: The obligations of ATI under this
Guarantee are continuing
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obligations, will not be discharged by any intermediate payment and will remain
in full force and effect until the obligations under this Guarantee have been
fulfilled (for the avoidance of doubt, nothing in this sub-Clause (B) shall
affect any obligation of ATI which has been discharged by the due and proper
performance by ATI of such obligations).
(C) Reinstatement: (1) Any settlement or discharge between the Agent
or any of the Banks and ATI shall be conditional upon no security or payment to
the Agent or such Bank by ATE or any other person being avoided or reduced by
virtue of any provision or enactment relating to bankruptcy, insolvency or
winding-up for the time being in force or by virtue of any obligation to give
effect to any preference or priority and the Agent or such Bank (as the case may
be) shall be entitled to recover the value or amount of any such security or
payment from ATI subsequently as if such settlement or discharge had not
occurred.
(2) Without prejudice to the provisions of paragraph (1), where any
discharge (whether in respect of the obligations of ATI or any security for
those obligations or otherwise) is made in whole or in part or any arrangement
is made on the faith of any payment, security or other disposition which is
avoided or must be repaid on bankruptcy, insolvency or winding-up or otherwise
without limitation, the liability of ATI under this Guarantee shall, unless the
Agent and the Banks agree otherwise, continue as if the discharge or
arrangement, as the case may be, had not occurred.
(D) Failure by ATI: The failure of ATI to perform or comply with any
of its obligations under this Guarantee shall not release ATI of its obligations
under this Guarantee.
(E) Immediate Recourse: ATI waives any right which it may have of first
requesting the Agent or any of the Banks to proceed against or enforce any other
rights or security or claim payment from the Borrower, ATE, ATI or any other
person before claiming from ATI under this Guarantee.
(F) Additional Security: This Agreement shall be in addition to and
shall not in any way be prejudiced by any other security now or hereafter held
by the Agent or any Bank as security for the obligations of the Borrower under
the Credit Agreement or the obligations of ATE under the Shareholders
Undertaking.
7. EXPENSES
ATI shall pay on demand all costs and expenses (including
legal expenses on a full indemnity basis) reasonably incurred by the Agent
and/or any of the Banks in protecting or enforcing any rights against it under
this Guarantee.
8. BENEFIT OF AGREEMENT
(A) ATI: ATI may not assign or transfer any of its rights,
benefits or obligations under this Guarantee.
(B) Agent/Banks: (1) Each of the Agent and the Banks may assign
all or part of its
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rights under this Guarantee without the consent of any party to any assignee or
transferee under the Credit Agreement. Any such assignee shall be entitled to
the full benefit of this Guarantee to the same extent as if it were an original
party in respect of the rights assigned to it.
(2) ATI shall not be liable for any costs or expenses which may be
incurred in connection with any assignment or transfer of any of the rights of
the Agent or any of the Banks under this Guarantee.
(C) Disclosure of Information: The Agent or any of the Banks may
disclose on a confidential basis to any other party to the Financing Documents
or any of its other branches or its headquarters or to an actual or potential
New Lending Bank, assignee, sub-participant or the like such information about
ATI or any other person as it may think fit and may disclose to such party such
information about ATI with the prior consent in writing of ATI (Provided that,
at any time and from time to time after the making of a declaration under Clause
17(B) of the Credit Agreement, (1) no such consent will be required for any such
disclosure and (2) the Agent or the relevant Bank making any such disclosure
shall, if practicable, consult with ATI prior to making any such disclosure and
shall consider in good faith any request from ATI to the Agent or such Bank not
to make any such disclosure or to delay making any such disclosure).
(D) Limitation on Certain Obligations: If, at the time of any
assignment or transfer by a Bank, circumstances exist which would oblige ATI to
pay to the assignee or transfer under Clause 5(A) any sum in excess of the sum
(if any) which it would have been obliged to pay to that Bank under that Clause
in the absence of that assignment or transfer, ATI shall not be obliged to pay
that excess.
9. WAIVERS
No failure on the part of the Agent or any of the Banks to
exercise, and no delay on its part in exercising, any right or remedy under this
Guarantee will operate as a waiver thereof, nor will any single or partial
exercise of any right or remedy preclude any other or further exercise thereof
or the exercise of any other right or remedy. The rights and remedies provided
in this Guarantee are cumulative and not exclusive of any other rights or
remedies (whether provided by law or otherwise).
10. COMMUNICATIONS
(A) Addresses: Each communication under this Guarantee shall be made
by fax, telex or otherwise in writing. Each communication or document to be
delivered to any party under this Guarantee shall be sent to that party at the
fax number, telex number or address, and marked for the attention of the person
(if any), from time to time designated by that party to the Agent (or, in the
case of the Agent, by it to each other party) for the purpose of this Guarantee.
The initial fax number, telex number, address and person (if any) so designated
by each party are set out against its name at the end of this Guarantee.
(B) Deemed Delivery: Any communication under this Guarantee shall be
deemed to have been received (if sent by fax or telex) on the day of despatch or
(in any other case) when left at the address required by sub-Clause (A) above or
within five days after being sent by prepaid post (by airmail if to another
country) addressed to it at that address.
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11. PARTIAL INVALIDITY
The illegality, invalidity or unenforceability of any
provision of this Guarantee under the law of any jurisdiction shall not affect
its legality, validity or enforceability under the law of any other jurisdiction
nor the legality, validity or enforceability of any other provision.
12. GOVERNING LAW AND JURISDICTION
(A) Governing Law: This Agreement shall be governed by, and
construed in accordance with, the laws of Singapore.
(B) Singapore Courts: For the benefit of the Agent and each Bank,
all the parties irrevocably agree that the courts of Singapore are to have
jurisdiction to settle any disputes which may arise out of or in connection with
this Guarantee and that, accordingly, any legal action or proceedings arising
out of or in connection with this Guarantee ("Proceedings") may be brought in
those courts and each of the Borrower and ATI irrevocably submits to the
jurisdiction of those courts.
(C) Other Competent Jurisdiction: Nothing in this Clause shall
limit the right of the Agent and/or any Bank to take Proceedings against ATI in
any other court of competent jurisdiction nor shall the taking of Proceedings in
one or more jurisdictions preclude the Agent and/or any Bank from taking
Proceedings in any other jurisdiction, whether concurrently or not.
(D) Venue: ATI irrevocably waives any objection which it may at
any time have to the laying of the venue of any Proceedings in any court
referred to in this Clause and any claim that any such Proceedings have been
brought in an inconvenient forum.
(E) Service of Process: ATI irrevocably appoints Agilent
Technologies Singapore Pte Ltd (now of 000X, Xxxxxxxxx Xxxx, #00-00, #00-00/00,
Xxxxxxxxx Xxxxxxxxxx X, Xxxxxxxxx 000000, attention: Legal Counsel) to receive,
for it and on its behalf, service of process in any Proceedings in Singapore.
Such service shall be deemed completed on delivery to the process agent (whether
or not it is forwarded to and received by ATI). If for any reason the process
agent ceases to be able to act as such or no longer has an address in Singapore,
ATI irrevocably agrees to appoint a substitute process agent acceptable to the
Agent, and to deliver to the Agent a copy of the new agent's acceptance of that
appointment, within 30 days. Nothing shall affect the right to serve process in
any other manner permitted by law.
(F) Consent to Enforcement, etc.: ATI irrevocably and generally
consents in respect of any Proceedings anywhere to the giving of any relief or
the issue of any process in connection with those Proceedings including, without
limitation, the making, enforcement or execution against any assets whatsoever
(irrespective of their use or intended use) of any order or judgment which may
be made or given in those Proceedings.
(G) Waiver of Immunity: ATI irrevocably agrees that, should the
Agent or any Bank take any Proceedings anywhere (whether for an injunction,
specific performance, damages or otherwise), no immunity (to the extent that it
may at any time exist, whether on the grounds of sovereignty or otherwise) from
those Proceedings, from attachment (whether in aid of execution, before judgment
or otherwise) of its assets or from execution of judgment shall be claimed by it
or on its behalf or with respect to its assets, any such immunity being
irrevocably waived. ATI irrevocably agrees that it and its assets are, and shall
be, subject to such Proceedings, attachment or execution in respect of its
obligations under this Guarantee.
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I N W I T N E S S W H E R E O F this Guarantee has
been entered into on the date stated at the beginning.
ATI
Signed, Sealed and Delivered )
by _________________________________ )
as attorney for and on behalf of )
AGILENT TECHNOLOGIES, INC )
in the presence of:- )
0000, Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000,
County of New Castle,
Delaware.
Fax number:
Attention: Legal Counsel
THE AGENT
Signed, Sealed and Delivered )
by __________________________________ )
and __________________________________ )
as attorneys for and on behalf of )
ABN AMRO BANK N.V., SINGAPORE )
BRANCH )
in the presence of:- )
00, Xxxxxx Xxxxxx,
0xx Xxxxx,
Xxxxxxxxx 000000.
Fax number: 000 0000
Attention: Xx Xxxxx Xxx/Xx Xxxxxxxx Xxx
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A P P E N D I X 2
FORM OF HP GUARANTEE
DATED NOVEMBER, 1999
HEWLETT-PACKARD COMPANY
AS HP
- AND -
ABN AMRO BANK N.V., SINGAPORE BRANCH
AS AGENT
-------------------------------------------------
HP GUARANTEE
-------------------------------------------------
XXXXX & XXXXXXXX,
00, XXXXXXXX XXXX, #00-00,
XXXX XXXXX,
XXXXXXXXX 000000.
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C O N T E N T S
CLAUSE HEADING PAGE
------ ------- ----
1. INTERPRETATION
2. UNDERTAKINGS BY HP
3. REPRESENTATIONS AND WARRANTIES
4. UNDERTAKINGS
5. PAYMENTS
6. NATURE OF RIGHTS AND OBLIGATIONS
7. EXPENSES
8. BENEFIT OF AGREEMENT
9. WAIVERS
10. COMMUNICATIONS
11. PARTIAL INVALIDITY
12. GOVERNING LAW AND JURISDICTION
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T H I S G U A R A N T E E is made on November, 0000 X X X X X X N:-
(1) HEWLETT-PACKARD COMPANY ("HP"), a company incorporated in California with
its registered office at 0000, Xxxxxxx Xxxxxx, MS 20BQ, Xxxx Xxxx, XX
00000, Xxxxxx Xxxxxx of America; and
(2) ABN AMRO BANK N.V., SINGAPORE BRANCH, a banking corporation incorporated in
the Netherlands and acting through its Singapore branch at 00, Xxxxxx
Xxxxxx, Xxxxxxxxx 000000, as agent for and on behalf of the Banks (in such
capacity, the "Agent", which expression shall include any of its successors
in such capacity).
W H E R E A S:-
(A) By a Credit Agreement (the Credit Agreement as amended by the First
Supplemental Agreement (as defined below) and the Second Supplemental Agreement
(as defined below), the "Credit Agreement") dated 12th March, 1998 made between
(1) Chartered Silicon Partners Pte Ltd (the "Borrower"), a company incorporated
in Singapore with its registered office at 00, Xxxxxxxxx Xxxxxxxxxx Xxxx X,
Xxxxxx 0, Xxxxxxxxx 000000, as borrower, (2) ABN AMRO Bank N.V., Singapore
Branch, Bayerische Landesbank Girozentrale, Singapore Branch, Citibank, N.A.,
Singapore Branch, Overseas Union Bank Limited and The Sumitomo Bank, Limited,
Singapore Branch, as arrangers, (3) the Guarantor Banks named therein (the
"Guarantor Banks"), as guarantor banks, (4) the Lending Banks named therein (the
"Lending Banks"), as lending banks, and (5) the Agent, as agent, the Guarantor
Banks agreed to grant to the Borrower a S$236,800,000 guarantee facility and the
Lending Banks agreed to grant to the Borrower a US$143,200,000 term loan
facility, upon the terms and subject to the conditions of the Credit Agreement.
(B) By a Shareholders Undertaking dated 1st July, 1998 made between (1) the
Borrower, as borrower, (2) the Shareholders named therein, as shareholders, and
(3) the Agent, as agent, as amended and restated by the First Supplemental
Shareholders Undertaking (as defined below) and the Second Supplemental
Shareholders Undertaking (as defined below) (the "Shareholders Undertaking"),
the Shareholders have agreed to give the undertakings therein contained to the
Agent and the Banks as security for the obligations of the Borrower under or in
connection with the Credit Agreement.
(C) HP (after giving due consideration to the terms and conditions of the
Financing Documents (as defined below) and satisfying itself that there are
reasonable grounds for believing that the entry into by it of this Guarantee
will benefit it) has agreed to enter into this Guarantee and give the
undertakings provided in this Guarantee.
I T I S A G R E E D as follows:-
1. INTERPRETATION
(A) Definitions: In this Guarantee, except to the extent that the context
requires otherwise:-
"ATE" means Agilent Technologies Europe B.V., a company incorporated in the
Netherlands;
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"Financing Documents" means the Credit Agreement and the Security
Documents;
"First Supplemental Agreement" means the first supplemental agreement dated
14th December, 1998 between the parties to the Credit Agreement, being
supplemental to the Credit Agreement;
"First Supplemental Shareholders Undertaking" means the supplemental
shareholders' undertaking dated 16th December, 1998 made between the
parties to the Shareholders Undertaking;
"Second Supplemental Shareholders Undertaking" means the supplemental
shareholders' undertaking dated November, 1999 made between the parties
to the Shareholders Undertaking;
"Second Supplemental Agreement" means the second supplemental agreement
dated November, 1999 between the parties to the Credit Agreement, being
supplemental to the Credit Agreement as supplemented by the First
Supplemental Agreement; and
"Termination Date" means, in relation to HP, the date on which HP has
fulfilled all its obligations under Clause 2(A).
(B) Financing Documents: All terms and references used in this Guarantee and
which are defined or construed in the Financing Documents but are not defined or
construed in this Guarantee shall have the same meaning and construction in this
Guarantee. Any reference in this Guarantee to a Financing Document shall include
that Financing Document as amended, modified or supplemented from time to time
and any document which amends, modifies or supplements that Financing Document.
(C) This Guarantee: Except to the extent that the context otherwise requires,
any reference to "this Guarantee" includes this Guarantee as from time to time
amended, modified or supplemented and any document which is supplemental hereto.
(D) Headings and Clauses: The headings in this Guarantee are inserted for
convenience only and shall be ignored in construing this Guarantee. Unless the
context otherwise requires, words denoting the singular number only shall
include the plural and vice versa. References to a statute shall be deemed to be
references to that statute as from time to time amended or re-enacted. Save as
otherwise indicated, references to "Clauses" are to be construed as references
to the clauses of this Guarantee.
2. UNDERTAKINGS BY HP
(A) Guarantee: In consideration of the Banks agreeing to grant their respective
shares of the Facility to the Borrower and/or the Banks otherwise acting under
or in connection with the Financing Documents (copies of which HP acknowledges
receipt), HP hereby unconditionally and irrevocably guarantees to the Agent and
each of the Banks, as a continuing guarantee subject to Clause 2(C), the due and
punctual performance by ATE of all its obligations, commitments and undertakings
under or pursuant to the Shareholders Undertaking, including but not limited to,
the due and punctual payment by ATE of all sums whatsoever which are or at any
time may be or become due from or owing by ATE under the Shareholders
Undertaking, including without
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limitation, under Clause 2(A)(1), 2(A)(2) and/or 2(A)(3) of the Shareholders
Undertaking, and unconditionally and irrevocably undertakes and agrees that, if
for any reason ATE does not perform any of its obligations under the
Shareholders Undertaking (including the payment of any sums thereunder) by the
time, on the date, in the currency and otherwise in the manner specified in the
Shareholders Undertaking, HP will, on demand by the Agent or any of the Banks,
perform such obligation on behalf of ATE (including, without limitation, paying
on behalf of ATE, or ensuring the payment of, such sums to the Borrower (in the
case of any such sums due under Clause 2(A)(2) and/or Clause 2(A)(3) of the
Shareholders Undertaking) or undertaking on behalf of ATE, or ensuring the
undertaking of, the relevant expenditure (in the case of any such sums due under
Clause 2(A)(1) of the Shareholders Undertaking)).
(B) Obligations Unconditional: The obligations of HP under this Clause are
unconditional and absolute, irrespective of (1) any event, however fundamental,
outside the control of the Borrower or HP or any other person preventing the
Borrower from achieving Completion by the Scheduled Completion Date, (2) any
winding-up, liquidation or dissolution of the Borrower, (3) any Event of Default
or action taken by the Agent or any Bank under the Financing Documents or any
enforcement of any security constituted by any Financing Document, (4) whether
the Project or the business of the Borrower is being carried on by any receiver,
judicial manager or other person and (5) any other circumstances whatsoever.
(C) Termination: HP's obligations under sub-Clause (A) shall terminate on 31st
March, 2001 without prejudice to any obligation accrued before that date.
3. REPRESENTATIONS AND WARRANTIES
HP represents and warrants to and for the benefit of the Agent and each of
the Banks that:-
(1) Status: it is a company duly incorporated and validly existing under the
laws of the State of Delaware, and has the power and authority to own its
assets and to conduct the business which it conducts;
(2) Powers: it has the power to enter into, exercise its rights and perform and
comply with its obligations under this Guarantee;
(3) Authorisations and Consents: all action, conditions and things required to
be taken, fulfilled and done (including the obtaining of any necessary
consents) in order (a) to enable it lawfully to enter into, exercise its
rights and perform and comply with its obligations under this Guarantee,
(b) to ensure that those obligations are valid, legally binding and
enforceable, and (c) to make this Guarantee admissible in evidence in the
courts of Singapore and the State of Delaware have been taken, fulfilled
and done;
(4) Non-Violation of Laws: its entry into, exercise of its rights and/or
performance of or compliance with its obligations under this Guarantee do
not and will not violate, or exceed any power or restriction granted or
imposed by, (a) any law to which it is subject or (b) its constitutive
documents;
(5) Obligations Binding: its obligations under this Guarantee are valid,
binding
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and enforceable;
(6) Non-Violation of Other Agreements: its entry into, exercise of its rights
and/or performance of or compliance with its obligations under this
Guarantee do not and will not violate, to an extent or in a manner which
has or will have a material adverse effect on it, any agreement to which it
is a party or which is binding on it or its assets;
(7) No Material Adverse Change: there has been no material adverse change in
its financial condition or operations since the date of HP's last published
annual report;
(8) Litigation: no litigation, arbitration or administrative proceeding is
current or pending (a) to restrain the entry into, exercise of its rights
under and/or performance or enforcement of or compliance with its
obligations under this Guarantee or (b) which has or will have a material
adverse effect on it;
(9) Winding-up: no meeting has been convened for its winding-up or for the
appointment of a receiver, trustee, judicial manager or similar officer of
it, its assets or any of them, no such step is intended by it and, so far
as it is aware, no petition, application or the like is outstanding for its
winding-up or for the appointment of a receiver, trustee, judicial manager
or similar officer of it, its assets or any of them;
(10) No Default: as far as it is aware after having made all due and proper
enquiries, no Event of Default or Potential Event of Default has occurred,
and it is not in breach of or default under any agreement to an extent or
in a manner which has or will have a material adverse effect on it; and
(11) Repetition: each of the above representations and warranties will be
correct and complied with in all material respects at all times up to the
Termination Date as if repeated then by reference to the then existing
circumstances.
4. UNDERTAKINGS
HP undertakes that, at all times prior to the Termination Date:-
(1) it will, as soon as available and in any event within 180 days after the
end of each of its financial years (beginning with the current one),
deliver, or cause to be delivered, to the Agent enough copies for the Banks
(on the basis of one copy for each Bank) of its published annual report as
at the end of and for that financial year;
(2) Litigation: it will, as soon as reasonably practicable, deliver to the
Agent for distribution to the Banks details of any litigation, arbitration
or administrative proceeding which, if to its knowledge had been current or
pending at the date of this Guarantee, would have rendered the
representation and warranty in Clause 3(8) incorrect;
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(3) Other Information: it will, as soon as reasonably practicable, deliver to
the Agent for distribution to the Banks such other information relating to
its financial condition or business of it as the Agent (or any Bank through
the Agent) may from time to time reasonably require (except for information
of a proprietary nature or which is reasonably regarded by it as
confidential); and
(4) Further Assurance: it will from time to time on reasonable request by the
Agent acting on the instructions of the Majority Banks do or procure the
doing of all such acts and will execute or procure the execution of all
such documents as may be reasonably necessary for giving full effect to
this Guarantee or securing to the Agent and the Banks the full benefits of
all rights, powers and remedies conferred upon the Agent and the Banks in
this Guarantee.
5. PAYMENTS
(A) Taxes: (1) All sums payable by HP under this Guarantee shall be paid (1)
free of any restriction or condition, (2) free and clear of and (except to the
extent required by law) without any deduction or withholding for or on account
of any tax and (3) without deduction or withholding (except to the extent
required by law) on account of any other amount, whether by way of set-off or
otherwise.
(2) If HP or any other person (whether or not a party to, or on behalf
of a party to, this Guarantee) must at any time deduct or withhold any tax or
other amount from any sum paid or payable by, or received or receivable from, HP
under this Guarantee, HP shall pay such additional amount as is necessary to
ensure that the Agent or, as the case may be, the Bank to which that sum is due,
receives on the due date and retains (free from any liability other than tax on
its own overall net income) a net sum equal to what it would have received and
so retained had no such deduction or withholding been required or made.
(3) If HP or any other person (whether or not a party to, or on behalf
of a party to, this Guarantee) must at any time pay any tax or other amount on,
or calculated by reference to, any sum received or receivable by the Agent or,
as the case may be, any of the Banks from HP under this Guarantee (except for a
payment by the Agent or a Bank of tax on its own overall net income), HP shall
pay or procure the payment of that tax or other amount before any interest or
penalty becomes payable or, if that tax or other amount is payable and paid by
the Agent or any Bank, shall reimburse it on demand for the amount paid by it.
(4) Within 30 days after paying any sum from which it is required by
law to make any deduction or withholding, and within 30 days after the due date
of payment of any tax or other amount which it is required by paragraph (3)
above to pay, HP shall deliver to the Agent evidence reasonably satisfactory to
the Agent or, as the case may be, the relevant Bank of that deduction,
withholding or payment and (where remittance is required) of the remittance
thereof to the relevant taxing or other authority.
(5) As soon as HP is aware that any such deduction, withholding or
payment is required (or any change in any such requirement), HP shall notify the
Agent.
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(B) Goods and Services Tax: HP shall also pay to the Agent and each Bank on
demand, in addition to any amount payable by HP under this Guarantee, any goods
and services, value added or other similar tax payable in respect of that amount
(and any reference in this Guarantee to that amount shall be deemed to include
any such taxes payable in addition to it).
(C) Refund of Tax Credits: If:-
(1) HP makes a payment under sub-Clause (A)(2) or (3) (a "Tax Payment") in
respect of a payment to a Bank under this Guarantee; and
(2) that Bank determines in its absolute discretion that it has obtained a
refund of tax or obtained and used a credit against tax on its overall net
income (a "Tax Credit") which that Bank in its absolute discretion is able
to identify as attributable to that Tax Payment,
then, if in its absolute discretion it can do so without any adverse
consequences for that Bank, that Bank shall reimburse HP such amount as that
Bank in its absolute discretion determines to be such proportion of that Tax
Credit as will leave that Bank (after that reimbursement) in no better or worse
position in respect of its worldwide tax liabilities than it would have been in
if no Tax Payment had been required. A Bank shall have an absolute discretion as
to whether to claim any Tax Credit (and, if it does claim, the extent, order and
manner in which it does so) and whether any amount is due from it under this
sub-Clause (C) (and, if so, what amount and when). No Bank shall be obliged to
disclose any information regarding its tax affairs and computations.
(D) Currency Indemnity: (1) Any amount received or recovered by the Agent or any
Bank in respect of any sum expressed to be due to it from HP under or in
connection with this Guarantee in a currency (such currency being referred to as
the "Relevant Currency") other than the currency in which such sum is expressed
to be due under this Guarantee (such currency being referred to as the "Currency
of Account") whether as a result of, or of the enforcement of, a judgment or
order of a court or tribunal of any jurisdiction, in the winding-up of HP or
otherwise, shall only constitute a discharge to HP to the extent of the amount
in the Currency of Account which the recipient is able, in accordance with its
usual practice, to purchase with the amount of the Relevant Currency so received
or recovered 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).
(2) If that amount in the Currency of Account is less than the amount
of the Currency of Account due to the recipient under or in connection with this
Guarantee, HP shall indemnify it against any loss sustained by it as a result.
In any event, HP shall indemnify the recipient against the cost of making any
such purchase. For the purpose of this sub-Clause (D), it will be sufficient for
the recipient to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
(3) Each of the indemnities in this sub-Clause (D) constitutes a
separate and independent obligation from the other obligations in this
Guarantee, shall give rise to a separate and independent cause of action, shall
apply irrespective of any indulgence granted by the Agent, any Arranger and/or
any Bank 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 Guarantee or any other judgment or order.
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6. NATURE OF RIGHTS AND OBLIGATIONS
(A) No Release: The obligations of HP under this Guarantee (excluding, for the
avoidance of doubt, any obligation of HP under this Guarantee which has been
discharged) shall not be discharged, impaired or otherwise affected by any act,
omission, matter or thing which, but for this sub-Clause (A), may operate to
release or otherwise exonerate HP from its obligations under this Guarantee in
whole or in part, including without limitation and whether or not known to it or
any other person:-
(1) any variation in or to the Project;
(2) any time, indulgence, concession waiver or consent at any time given by the
Agent and/or any of the Banks to the Borrower, ATE, HP or any other person;
(3) any amendment or supplement to any provision of any Financing Document or
any other agreement, security, guarantee or indemnity relating to the
Financing Documents;
(4) the making or the absence of any demand on the Borrower, HP or any other
person for payment;
(5) the enforcement or absence of enforcement of or release of any of the
Financing Documents or any other agreement, security, guarantee or
indemnity relating to the Financing Documents;
(6) the winding-up, insolvency, bankruptcy, amalgamation, reconstruction or
reorganisation of the Borrower, ATE, HP or any other person;
(7) the illegality, invalidity or unenforceability of or any defect in any
provision of any Financing Document or any other agreement, security,
guarantee or indemnity or any of the obligations of the Borrower, ATE, HP
or any other person thereunder, whether on the grounds of ultra xxxxx, not
being in the interests of the Borrower, ATE, or any other person, not
having been duly authorised, executed or delivered by the Borrower, ATE or
any other person or for any reason whatsoever; or
(8) any other act, event or omission which but for this provision would or
might operate to impair or discharge the obligations of HP under this
Guarantee.
(B) Continuing Obligations: The obligations of HP under this Guarantee are
continuing obligations, will not be discharged by any intermediate payment and
will remain in full force and effect until the obligations under this Guarantee
have been fulfilled (for the avoidance of doubt, nothing in this sub-Clause (B)
shall affect any obligation of HP which has been discharged by the due and
proper performance by HP of such obligations).
(C) Reinstatement: (1) Any settlement or discharge between the Agent or any of
the Banks and HP shall be conditional upon no security or payment to the Agent
or such Bank by ATE
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or any other person being avoided or reduced by virtue of any provision or
enactment relating to bankruptcy, insolvency or winding-up for the time being in
force or by virtue of any obligation to give effect to any preference or
priority and the Agent or such Bank (as the case may be) shall be entitled to
recover the value or amount of any such security or payment from HP subsequently
as if such settlement or discharge had not occurred.
(2) Without prejudice to the provisions of paragraph (1), where any
discharge (whether in respect of the obligations of HP or any security for those
obligations or otherwise) is made in whole or in part or any arrangement is made
on the faith of any payment, security or other disposition which is avoided or
must be repaid on bankruptcy, insolvency or winding-up or otherwise without
limitation, the liability of HP under this Guarantee shall, unless the Agent and
the Banks agree otherwise, continue as if the discharge or arrangement, as the
case may be, had not occurred.
(D) Failure by HP: The failure of HP to perform or comply with any of its
obligations under this Guarantee shall not release HP of its obligations under
this Guarantee.
(E) Immediate Recourse: HP waives any right which it may have of first
requesting the Agent or any of the Banks to proceed against or enforce any other
rights or security or claim payment from the Borrower, ATE, HP or any other
person before claiming from HP under this Guarantee.
(F) Additional Security: This Agreement shall be in addition to and shall not in
any way be prejudiced by any other security now or hereafter held by the Agent
or any Bank as security for the obligations of the Borrower under the Credit
Agreement or the obligations of ATE under the Shareholders Undertaking.
7. EXPENSES
HP shall pay on demand all costs and expenses (including legal
expenses on a full indemnity basis) reasonably incurred by the Agent and/or any
of the Banks in protecting or enforcing any rights against it under this
Guarantee.
8. BENEFIT OF AGREEMENT
(A) HP: HP may not assign or transfer any of its rights, benefits or obligations
under this Guarantee.
(B) Agent/Banks: (1) Each of the Agent and the Banks may assign all or part of
its rights under this Guarantee without the consent of any party to any assignee
or transferee under the Credit Agreement. Any such assignee shall be entitled to
the full benefit of this Guarantee to the same extent as if it were an original
party in respect of the rights assigned to it.
(2) HP shall not be liable for any costs or expenses which may be
incurred in connection with any assignment or transfer of any of the rights of
the Agent or any of the Banks under this Guarantee.
(C) Disclosure of Information: The Agent or any of the Banks may disclose on a
confidential basis to any other party to the Financing Documents or any of its
other branches or its headquarters or to an actual or potential New Lending
Bank, assignee, sub-participant or the like
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such information about HP or any other person as it may think fit and may
disclose to such party such information about HP with the prior consent in
writing of HP (Provided that, at any time and from time to time after the making
of a declaration under Clause 17(B) of the Credit Agreement, (1) no such consent
will be required for any such disclosure and (2) the Agent or the relevant Bank
making any such disclosure shall, if practicable, consult with HP prior to
making any such disclosure and shall consider in good faith any request from HP
to the Agent or such Bank not to make any such disclosure or to delay making any
such disclosure).
(D) Limitation on Certain Obligations: If, at the time of any assignment or
transfer by a Bank, circumstances exist which would oblige HP to pay to the
assignee or transfer under Clause 5(A) any sum in excess of the sum (if any)
which it would have been obliged to pay to that Bank under that Clause in the
absence of that assignment or transfer, HP shall not be obliged to pay that
excess.
9. WAIVERS
No failure on the part of the Agent or any of the Banks to
exercise, and no delay on its part in exercising, any right or remedy under this
Guarantee will operate as a waiver thereof, nor will any single or partial
exercise of any right or remedy preclude any other or further exercise thereof
or the exercise of any other right or remedy. The rights and remedies provided
in this Guarantee are cumulative and not exclusive of any other rights or
remedies (whether provided by law or otherwise).
10. COMMUNICATIONS
(A) Addresses: Each communication under this Guarantee shall be made by fax,
telex or otherwise in writing. Each communication or document to be delivered to
any party under this Guarantee shall be sent to that party at the fax number,
telex number or address, and marked for the attention of the person (if any),
from time to time designated by that party to the Agent (or, in the case of the
Agent, by it to each other party) for the purpose of this Guarantee. The initial
fax number, telex number, address and person (if any) so designated by each
party are set out against its name at the end of this Guarantee.
(B) Deemed Delivery: Any communication under this Guarantee shall be deemed to
have been received (if sent by fax or telex) on the day of despatch or (in any
other case) when left at the address required by sub-Clause (A) above or within
five days after being sent by prepaid post (by airmail if to another country)
addressed to it at that address.
11. PARTIAL INVALIDITY
The illegality, invalidity or unenforceability of any
provision of this Guarantee under the law of any jurisdiction shall not affect
its legality, validity or enforceability under the law of any other jurisdiction
nor the legality, validity or enforceability of any other provision.
12. GOVERNING LAW AND JURISDICTION
(A) Governing Law: This Agreement shall be governed by, and construed in
accordance with, the laws of Singapore.
(B) Singapore Courts: For the benefit of the Agent and each Bank, all the
parties
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irrevocably agree that the courts of Singapore are to have jurisdiction to
settle any disputes which may arise out of or in connection with this Guarantee
and that, accordingly, any legal action or proceedings arising out of or in
connection with this Guarantee ("Proceedings") may be brought in those courts
and each of the Borrower and HP irrevocably submits to the jurisdiction of those
courts.
(C) Other Competent Jurisdiction: Nothing in this Clause shall limit the right
of the Agent and/or any Bank to take Proceedings against HP in any other court
of competent jurisdiction nor shall the taking of Proceedings in one or more
jurisdictions preclude the Agent and/or any Bank from taking Proceedings in any
other jurisdiction, whether concurrently or not.
(D) Venue: HP irrevocably waives any objection which it may at any time have to
the laying of the venue of any Proceedings in any court referred to in this
Clause and any claim that any such Proceedings have been brought in an
inconvenient forum.
(E) Service of Process: HP irrevocably appoints Hewlett-Packard Singapore
(Private) Limited (now of 000, Xxxxxxxxx Xxxx, Xxxxxxxxx 000000, attention:
Legal Counsel) to receive, for it and on its behalf, service of process in any
Proceedings in Singapore. Such service shall be deemed completed on delivery to
the process agent (whether or not it is forwarded to and received by HP). If for
any reason the process agent ceases to be able to act as such or no longer has
an address in Singapore, HP irrevocably agrees to appoint a substitute process
agent acceptable to the Agent, and to deliver to the Agent a copy of the new
agent's acceptance of that appointment, within 30 days. Nothing shall affect the
right to serve process in any other manner permitted by law.
(F) Consent to Enforcement, etc.: HP irrevocably and generally consents in
respect of any Proceedings anywhere to the giving of any relief or the issue of
any process in connection with those Proceedings including, without limitation,
the making, enforcement or execution against any assets whatsoever (irrespective
of their use or intended use) of any order or judgment which may be made or
given in those Proceedings.
(G) Waiver of Immunity: HP irrevocably agrees that, should the Agent or any Bank
take any Proceedings anywhere (whether for an injunction, specific performance,
damages or otherwise), no immunity (to the extent that it may at any time exist,
whether on the grounds of sovereignty or otherwise) from those Proceedings, from
attachment (whether in aid of execution, before judgment or otherwise) of its
assets or from execution of judgment shall be claimed by it or on its behalf or
with respect to its assets, any such immunity being irrevocably waived. HP
irrevocably agrees that it and its assets are, and shall be, subject to such
Proceedings, attachment or execution in respect of its obligations under this
Guarantee.
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I N W I T N E S S W H E R E O F this Guarantee has been
entered into on the date stated at the beginning.
HP
Signed, Sealed and Delivered )
by _________________________________ )
as attorney for and on behalf of )
HEWLETT-PACKARD COMPANY )
in the presence of:- )
0000, Xxxxxxx Xxxxxx,
XX 20BQ,
Xxxx Xxxx, XX 00000,
Xxxxxx Xxxxxx of America.
Fax number:
Attention: General Counsel
THE AGENT
Signed, Sealed and Delivered )
by __________________________________ )
and __________________________________ )
as attorneys for and on behalf of )
ABN AMRO BANK N.V., SINGAPORE )
BRANCH )
in the presence of:- )
00, Xxxxxx Xxxxxx,
0xx Xxxxx,
Xxxxxxxxx 000000.
Fax number: 000 0000
Attention: Xx Xxxxx Xxx/Xx Xxxxxxxx Xxx
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A P P E N D I X 3
FORM OF SECOND SUPPLEMENTAL
SHAREHOLDERS UNDERTAKING
DATED ____ NOVEMBER, 1999
CHARTERED SILICON PARTNERS PTE LTD
AS BORROWER
AGILENT TECHNOLOGIES EUROPE B.V.
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
EDB INVESTMENTS PTE LTD
AS SHAREHOLDERS
HEWLETT-PACKARD EUROPE B.V.
AS RETIRING SHAREHOLDER
- AND -
ABN AMRO BANK N.V., SINGAPORE BRANCH
AS AGENT
-------------------------------------------------
SECOND SUPPLEMENTAL
SHAREHOLDERS UNDERTAKING
(RELATING TO THE SHAREHOLDERS UNDERTAKING
DATED 1ST JULY, 1998 AS SUPPLEMENTED BY
THE FIRST SUPPLEMENTAL SHAREHOLDERS UNDERTAKING
DATED 16TH DECEMBER, 1998)
-------------------------------------------------
XXXXX & XXXXXXXX,
00, XXXXXXXX XXXX, #00-00,
XXXX XXXXX,
XXXXXXXXX 000000.
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C O N T E N T S
CLAUSE HEADING PAGE
----- ------- -----
1. INTERPRETATION
2. AMENDMENTS TO AND RESTATEMENT OF THE
SHAREHOLDERS UNDERTAKING
3. DISCHARGE
4. REPRESENTATIONS AND WARRANTIES
5. EXPENSES AND STAMP DUTY
6. GOVERNING LAW AND JURISDICTION
SCHEDULE - FORM OF AMENDED AND RESTATED
SHAREHOLDERS UNDERTAKING
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T H I S S E C O N D S U P P L E M E N T A L
S H A R E H O L D E R S U N D E R T A K I N G is made on November, 0000
X X X X X X N:-
(1) CHARTERED SILICON PARTNERS PTE LTD (the "Borrower");
(2) AGILENT TECHNOLOGIES EUROPE B.V. ("ATE"), CHARTERED SEMICONDUCTOR
MANUFACTURING LTD ("CSM") and EDB INVESTMENTS PTE LTD ("EDBI");
(3) HEWLETT-PACKARD EUROPE B.V. (the "Retiring Shareholder"); and
(4) ABN AMRO BANK N.V., SINGAPORE BRANCH, as agent for and on behalf of the
Banks (in such capacity, the "Agent", which expression shall include any of
its successors in such capacity),
and amends a Shareholders Undertaking (the "Shareholders Undertaking") dated 1st
July, 1998 made between (1) the Borrower, as borrower, (2) CSM, EDBI and the
Retiring Shareholder (together, the "Existing Shareholders"), as shareholders,
and (3) the Agent, as agent, as supplemented by a first supplemental
shareholders undertaking (the "First Supplemental Undertaking") dated 16th
December, 1998 made between the parties to the Shareholders Undertaking.
W H E R E A S:-
(A) Pursuant to the Shareholders Undertaking, the Existing Shareholders agreed
to undertake certain obligations in favour of the Agent and the Banks, upon the
terms and subject to the conditions of the Shareholders Undertaking.
(B) Pursuant to the First Supplemental Undertaking, the Borrower, the Existing
Shareholders, the Arrangers, the Guarantor Banks, the Lending Banks and the
Agent have agreed to amend the Shareholders Undertaking, on the terms and
subject to the conditions of the First Supplemental Undertaking.
(C) The Borrower, ATE, CSM, EDBI and the Retiring Shareholder wish to amend the
Shareholders Undertaking (as supplemented by the First Supplemental Undertaking)
to, inter alia, replace the Retiring Shareholder with ATE, and the Banks have
agreed, on the terms and subject to the conditions set out in this Supplemental
Undertaking, to amend and restate the Shareholders Undertaking (as supplemented
by the First Supplemental Undertaking) as set out in this Supplemental
Undertaking.
I T I S A G R E E D as follows:-
1. INTERPRETATION
(A) Definitions: In this Supplemental Undertaking, except to the extent that the
context requires otherwise:-
"Credit Agreement" means the Credit Agreement dated 12th March, 1998 made
between (1) the Borrower, as borrower, (2) the Arrangers named therein, as
arrangers, (3) the Guarantor Banks named therein, as guarantor banks, (4)
the
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Lending Banks named therein, as lending banks, and (5) the Agent, as
agent, as supplemented by the first supplemental agreement dated 14th
December 1998 made between the parties to the Credit Agreement and as
further supplemented by the Second Supplemental Agreement;
"Restated Shareholders Undertaking" means the Shareholders Undertaking as
amended and restated on the terms of Schedule 1;
"Second Supplemental Agreement" means the second supplemental agreement
dated ____ November, 1999 between the parties to the Credit Agreement,
being supplemental to the Credit Agreement as supplemented by the First
Supplemental Agreement; and
"Shareholders" means ATE, CSM and EDBI (and includes their respective
successors and permitted assignees and transferees).
(B) Construction of Certain References: All terms and references used in the
Shareholders Undertaking and which are defined or construed in the Shareholders
Undertaking but are not defined or construed in this Supplemental Undertaking
shall have the same meaning and construction in this Supplemental Undertaking.
All references in this Supplemental Undertaking to the Shareholders Undertaking
shall be to the Shareholders Undertaking as amended, supplemented or modified by
the First Supplemental Undertaking.
(C) Miscellaneous: The headings in this Supplemental Undertaking are inserted
for convenience only and shall be ignored in construing this Supplemental
Undertaking. Unless otherwise stated, references to "Clauses" and "Schedule" are
to be construed as references to the clauses of, and the schedule to, this
Supplemental Undertaking.
2. AMENDMENTS TO AND RESTATEMENT OF THE SHAREHOLDERS UNDERTAKING
(A) Supplemental Undertaking: This Supplemental Undertaking is and shall be
construed as supplemental to the Shareholders Undertaking and every Clause
thereof shall continue in full force and effect and be binding on the parties
thereto save as expressly amended and supplemented by this Supplemental
Undertaking. In addition, except as expressly provided for herein, this
Supplemental Undertaking shall not affect any rights or interests of the Agent
and the Banks whatsoever existing immediately prior to the Effective Date (as
defined in the Second Supplemental Agreement).
(B) Amendment and Restatement of Shareholders Undertaking: The parties agree
that the Shareholders Undertaking shall, with effect on and from the Effective
Date, be amended and restated in the form of the Restated Shareholders
Undertaking so that the rights and obligations of the parties to this
Supplemental Undertaking under the Shareholders Undertaking shall, on and after
the Effective Date, be governed by, and construed in accordance with, the
Restated Shareholders Undertaking.
3. DISCHARGE
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The parties agree that, on and from the Effective Date, the
Retiring Shareholder shall be discharged from its obligations under the
Shareholders Undertaking without prejudice to any obligations accrued before
that date.
4. REPRESENTATIONS AND WARRANTIES
Each of the Borrower and the Shareholders severally represents
and warrants to and for the benefit of each of the other parties to this
Supplemental Undertaking that:-
(1) all action, conditions and things required to be
taken, fulfilled and done (including the obtaining of
any necessary consents) in order (a) to enable it
lawfully to enter into, exercise its rights and
perform and comply with its obligations under this
Supplemental Undertaking and (b) to make this
Supplemental Undertaking admissible in evidence in
the courts of Singapore and the Netherlands, have
been taken, fulfilled and done;
(2) its entry into, exercise of its rights and/or
performance of or compliance with its obligations
under this Supplemental Undertaking and the Restated
Shareholders Undertaking, do not and will not violate
(a) any law to which it is subject, (b) any provision
of its constitutive documents or (c) to an extent or
in a manner which has or will have a material adverse
effect on it, any agreement to which it is a party or
which is binding on it or its assets; and
(3) this Supplemental Undertaking and the Restated
Shareholders Undertaking, constitute its valid,
binding and enforceable obligations in accordance
with their respective terms.
5. EXPENSES AND STAMP DUTY
The Borrower shall pay:-
(1) on demand, all costs and expenses (including legal
fees and all goods and services, value added and
other duties or taxes payable on such costs and
expenses) reasonably incurred by the Agent in
connection with the preparation, negotiation and
entry into of this Supplemental Undertaking and the
Restated Shareholders Undertaking; and
(2) promptly, and in any event before any penalty becomes
payable, any stamp, goods and services, value added,
documentary or similar duty or tax payable in
connection with the entry into, performance,
enforcement and admissibility in evidence of any of
this Supplemental Undertaking and the Restated
Shareholders Undertaking, and shall indemnify the
Agent and the Banks against any liability with
respect to or resulting from any delay in paying or
omission to pay any such tax.
6. GOVERNING LAW AND JURISDICTION
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(A) Governing Law: This Supplemental Undertaking shall be governed by, and
construed in accordance with, the laws of Singapore.
(B) Singapore Courts: For the benefit of the Agent and each Bank, all the
parties irrevocably agree that the courts of Singapore are to have jurisdiction
to settle any disputes which may arise out of or in connection with this
Supplemental Undertaking and that, accordingly, any legal action or proceedings
arising out of or in connection with this Supplemental Undertaking
("Proceedings") may be brought in those courts and each of the Borrower and the
Shareholders irrevocably submits to the jurisdiction of those courts.
(C) Other Competent Jurisdiction: Nothing in this Clause shall limit the right
of the Agent and/or any Bank to take Proceedings against the Borrower or any of
the Shareholders in any other court of competent jurisdiction nor shall the
taking of Proceedings in one or more jurisdictions preclude the Agent and/or any
Bank from taking Proceedings in any other jurisdiction, whether concurrently or
not.
(D) Venue: Each of the Borrower and the Shareholders irrevocably waives any
objection which it may at any time have to stipulating the venue of any
Proceedings in any court referred to in this Clause and any claim that any such
Proceedings have been brought in an inconvenient forum.
(E) Service of Process: (1) ATE irrevocably appoints Agilent Technologies
Singapore Pte Ltd (now of 000X, Xxxxxxxxx Xxxx, #00-00, #00-00/00, Xxxxxxxxx
Xxxxxxxxxx X, Xxxxxxxxx 000000, Attention: Legal Counsel) to receive, for it and
on its behalf, service of process in any Proceedings in Singapore. Such service
shall be deemed completed on delivery to the process agent (whether or not it is
forwarded to and received by ATE). If for any reason the process agent ceases to
be able to act as such or no longer has an address in Singapore, ATE irrevocably
agrees to appoint a substitute process agent acceptable to the Agent, and to
deliver to the Agent a copy of the new agent's acceptance of that appointment,
within 30 days. Nothing shall affect the right to serve process in any other
manner permitted by law.
(F) Consent to Enforcement, etc.: Each of the Borrower and the Shareholders
irrevocably and generally consents in respect of any Proceedings anywhere to the
giving of any relief or the issue of any process in connection with those
Proceedings including, without limitation, the making, enforcement or execution
against any assets whatsoever (irrespective of their use or intended use) of any
order or judgment which may be made or given in those Proceedings.
(G) Waiver of Immunity: Each of the Borrower and the Shareholders irrevocably
agrees that, should the Agent or any Bank take any Proceedings anywhere (whether
for an injunction, specific performance, damages or otherwise), no immunity (to
the extent that it may at any time exist, whether on the grounds of sovereignty
or otherwise) from those Proceedings, from attachment (whether in aid of
execution, before judgment or otherwise) of its assets or from execution of
judgment shall be claimed by it or on its behalf or with respect to its assets,
any such immunity being irrevocably waived. Each of the Borrower and the
Shareholders irrevocably agrees that it and its assets are, and shall be,
subject to such Proceedings, attachment or execution in respect of its
obligations under this Supplemental Undertaking.
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S C H E D U L E
FORM OF AMENDED AND RESTATED
SHAREHOLDERS UNDERTAKING
ORIGINALLY DATED 1ST JULY, 1998
AS AMENDED ON 16TH DECEMBER, 1998 BY
A FIRST SUPPLEMENTAL SHAREHOLDERS UNDERTAKING
AND ON NOVEMBER, 1999
BY A SECOND SUPPLEMENTAL SHAREHOLDERS UNDERTAKING
CHARTERED SILICON PARTNERS PTE LTD
AS BORROWER
AGILENT TECHNOLOGIES EUROPE B.V.
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
EDB INVESTMENTS PTE LTD
AS SHAREHOLDERS
- AND -
ABN AMRO BANK N.V., SINGAPORE BRANCH
AS AGENT
-----------------------------------------------
AMENDED AND RESTATED
SHAREHOLDERS UNDERTAKING
WITH EFFECT FROM THE EFFECTIVE DATE
(AS DEFINED) UNDER THE SECOND SUPPLEMENTAL SHAREHOLDERS
UNDERTAKING DATED ____ NOVEMBER, 1999
------------------------------------------------
XXXXX & XXXXXXXX,
00, XXXXXXXX XXXX, #00-00,
XXXX XXXXX,
XXXXXXXXX 000000.
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C O N T E N T S
CLAUSE HEADING PAGE
------ ------- ----
1. INTERPRETATION
2. UNDERTAKINGS BY SHAREHOLDERS
3. SUBORDINATION
4. AGREEMENT BY BORROWER AND SHAREHOLDERS
5. REPRESENTATIONS AND WARRANTIES
6. UNDERTAKINGS
7. PAYMENTS
8. NATURE OF RIGHTS AND OBLIGATIONS
9. EXPENSES
10. BENEFIT OF AGREEMENT
11. WAIVERS
12. COMMUNICATIONS
13. PARTIAL INVALIDITY
14. GOVERNING LAW AND JURISDICTION
APPENDIX - INFORMATION PACK
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T H I S A G R E E M E N T is originally
made on 1st July, 0000 X X X X X X N:-
(1) CHARTERED SILICON PARTNERS PTE LTD (the "Borrower");
(2) AGILENT TECHNOLOGIES EUROPE B.V. ("ATE"), CHARTERED SEMICONDUCTOR
MANUFACTURING LTD ("CSM") and EDB INVESTMENTS PTE LTD ("EDBI"); and
(3) ABN AMRO BANK N.V., SINGAPORE BRANCH, as agent for and on behalf of the
Banks defined below (in such capacity, the "Agent", which expression shall
include any of its successors in such capacity).
W H E R E A S:-
(A) By a Credit Agreement (the Credit Agreement as amended by the First
Supplemental Agreement (as defined below) and the Second Supplemental Agreement
(as defined below), the "Credit Agreement") dated 12th March, 1998 made between
(1) the Borrower, as borrower, (2) ABN AMRO Bank N.V., Singapore Branch,
Bayerische Landesbank Girozentrale, Singapore Branch, Citibank, N.A., Singapore
Branch, Overseas Union Bank Limited and The Sumitomo Bank, Limited, Singapore
Branch, as arrangers, (3) the Guarantor Banks named therein (the "Guarantor
Banks"), as guarantor banks, (4) the Lending Banks named therein (the "Lending
Banks"), as lending banks, and (5) the Agent, as agent, the Guarantor Banks
agreed to grant to the Borrower a S$236,800,000 guarantee facility and the
Lending Banks agreed to grant to the Borrower a US$143,200,000 term loan
facility, upon the terms and subject to the conditions of the Credit Agreement.
(B) (1) CSM is the legal and beneficial owner of 51 per cent. of the issued
shares in the capital of the Borrower.
(2) EDBI is the legal and beneficial owner of 19 per cent. of the issued
shares in the capital of the Borrower.
(3) On 9th November, 1999, ATE will be 100 per cent. legally and
beneficially owned by Hewlett-Packard World Trade, Inc ("HPWT") which is in turn
100 per cent. legally and beneficially owned by Hewlett-Packard Company ("HP").
On 11th November, 1999, ATE will be 100 per cent. legally and beneficially owned
by Agilent Technologies World Trade, Inc. ("ATWT") which will be 100 per cent.
legally and beneficially owned by HPWT and pursuant to a transfer on the same
day ATWT will then be 100 per cent. owned by HP. On 15th November, 1999, ATE
will be 100 per cent. legally and beneficially owned by ATWT, which will be 100
per cent. owned by Agilent Technologies, Inc. ("ATI") which in turn will be
owned 100 per cent. legally and beneficially by HP, thereafter HP will own
between 80 to 85 per cent. of ATI and cease to own any ATI share by May 2000.
ATE is or will be the legal and beneficial owner of 30 per cent.
of the issued shares in the capital of the Borrower.
(C) Each of the Shareholders (as defined below) (after giving due consideration
to the terms and conditions of the Credit Agreement and satisfying itself that
there are reasonable grounds for believing that the entry into by it of this
Agreement will benefit it) has agreed to enter into this Agreement and give the
undertakings provided in this Agreement in consideration of the Guarantor Banks
making available to the Borrower the guarantee facility referred to in Recital
(A)
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above and the Lending Banks making available to the Borrower the term loan
facility referred to in Recital (A) above.
I T I S A G R E E D as follows:-
1. INTERPRETATION
(A) Definitions: In this Agreement, except to the extent that the context
requires otherwise:-
"Agent" includes its successors in title and assigns and any
company with which it may amalgamate and all other persons for
the time being the agent for the Banks under this Agreement;
"ATI Entities" means ATI or any corporation which is at
least 99 per cent. owned (whether directly or indirectly) by
ATI;
"Banks" means the Guarantor Banks and the Lending Banks (and
includes their respective successors and assigns);
"Completion" means the physical completion of the Plant (which
shall be evidenced by the grant of the temporary occupation
permit for the Plant pursuant to the Building Control Act,
Chapter 29 of Singapore) and the commencement of commercial
production by the Plant (which shall be the date on which the
Plant achieves a production rate of an aggregate of 2,000
wafers start per month);
"Discharge Date" means the date on which the Senior
Indebtedness has been discharged in full and on which the
Borrower and the Shareholders cease to be under any liability
to the Agent and the Banks under or in connection with the
Financing Documents;
"Equity Commitment Percentage" means:-
(1) in relation to CSM, 51/100;
(2) in relation to EDBI, 19/100; and
(3) in relation to ATE, 30/100;
"Excluded Transaction" means any genuine and good faith
commercial transaction entered into between the Borrower and
any one or more of the Shareholders which is not primarily
financial in nature and is contemplated under the Joint
Venture Agreement;
"First Supplemental Agreement" means the first supplemental
agreement dated 14th December, 1998 between the parties to the
Credit Agreement, being supplemental to the Credit Agreement;
"Information Pack" means the HP/Agilent Re-structuring
Information Pack, substantially in the form of the Appendix;
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"Joint Venture Agreement" has the meaning ascribed to it in
Clause 1(A) of the Credit Agreement;
"Scheduled Completion Date" means 31st December, 2000;
"Second Supplemental Agreement" means the second supplemental
agreement dated ____ November, 1999 between the parties to the
Credit Agreement, being supplemental to the Credit Agreement
as supplemented by the First Supplemental Agreement;
"Senior Indebtedness" means all sums (whether principal,
interest, fee or otherwise) which are or at any time may be or
become due from or owing by the Borrower to the Agent and/or
the Banks (or any of them), whether actually or contingently,
under or in connection with, or which the Borrower has
covenanted to pay or discharge under or pursuant to, any of
the Financing Documents;
"Shareholder Funding" means:-
(1) subscription moneys paid by any Shareholder for
shares in the Borrower for which that Shareholder has
subscribed (and which have not been returned to that
Shareholder); or
(2) loans made by any Shareholder to the Borrower which
are subordinated to the Senior Indebtedness in
accordance with this Agreement;
"Shareholders" means ATE, CSM and EDBI (and includes their
respective successors and permitted assignees and
transferees);
"Subordinated Indebtedness" means all sums made or to be made
available by the Shareholders (or any of them) to the Borrower
under or in connection with this Agreement (including, without
limitation, under Clause 2);
"Termination Date" means, in relation to a Shareholder, the
earlier of (1) the date on which that Shareholder has
fulfilled all its obligations under Clause 2(A) and (2) the
date on which all Shareholder Funding provided by it, if any,
in accordance with this Agreement has been converted into
shares in the capital of the Borrower; and
"Total Indebtedness" means, at any particular time, all sums
(whether principal, interest, fee or otherwise) which are then
due from or owing by the Borrower to the Agent and the Banks,
whether actually or contingently, under or in connection with,
any of the Financing Documents to which the Borrower is a
party.
(B) Construction: All terms and references used in this Agreement and which are
defined or construed in the Credit Agreement but are not defined or construed in
this Agreement shall have the same meaning and construction in this Agreement.
The provisions of Clause 1(C) of the Credit Agreement shall apply to this
Agreement as though they are set out in full in this Agreement (mutatis
mutandis) except that references to the Credit Agreement are to be construed
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49
as references to this Agreement. All references in this Agreement to a Financing
Document include that Financing Document as amended, modified or supplemented
from time to time and any document which amends, modifies or supplements that
Financing Document.
(C) Miscellaneous: The headings in this Agreement are inserted for convenience
only and shall be ignored in construing this Agreement. Unless the context
otherwise requires, words denoting the singular number only shall include the
plural and vice versa. References to "Clauses" are to be construed as references
to the clauses of this Agreement. Any reference to a sub-Clause or a paragraph
is to a sub-Clause or paragraph of the Clause in which such reference appears.
2. UNDERTAKINGS BY SHAREHOLDERS
(A) Shareholders Support: In consideration of the Guarantor Banks agreeing, at
the request of the Shareholders, to make available to the Borrower the guarantee
facility referred to in Recital (A) above and the Lending Banks agreeing, at the
request of the Shareholders, to make available to the Borrower the term loan
facility referred to in Recital (A) above and/or the Banks (or any of them)
acting under or in connection with the Credit Agreement:-
(1) Completion Guarantee: (a) subject to sub-paragraph
(c) below, (i) each Shareholder agrees to procure
that the Borrower will not abandon the Project and to
procure that Completion is achieved by not later than
the Scheduled Completion Date and (ii) each
Shareholder shall indemnify each Bank and keep each
Bank indemnified against any losses, damages,
liabilities, costs and expenses (including, without
limitation, legal costs on a full indemnity basis)
suffered by that Bank if Completion is not achieved
by the Scheduled Completion Date and which would not
have been suffered if Completion had been so
achieved;
(b) each Shareholder agrees to undertake such
expenditures as are required in order to ensure its
compliance with the provisions of sub-paragraph (a)
above and agrees to take all steps necessary to
ensure that Completion is achieved by not later than
the Scheduled Completion Date (provided that, without
prejudice to the obligations of the Shareholders
under sub-paragraph (a)(ii) above or any other
provision of this Agreement, the aggregate amount of
the expenditures by the Shareholders under
sub-paragraphs (a)(i) and (b) at any time shall not
exceed the difference between S$720,000,000 and the
aggregate amount of Shareholding Funding provided by
the Shareholders immediately prior to that time); and
(c) any payment obligation of a Shareholder arising
under sub-paragraph (a) or (b) above shall be limited
to that Shareholder's Equity Commitment Percentage of
the total amount payable by the Shareholders provided
always that the maximum aggregate liability of the
Shareholders at any time under sub-paragraph (a)(ii)
above shall not exceed the Total Indebtedness at that
time;
(2) Equity Support: if, on 31st December, 2001, the ratio
of the Borrowings of the Borrower to its Net Worth is
in excess of 1:1, each Shareholder shall
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(without demand by the Borrower, the Agent or any Bank)
severally provide Shareholder Funding to the Borrower within
14 days after that date in an amount equal to its Equity
Commitment Percentage of the difference between (a)
S$720,000,000 and (b) the aggregate amount of Shareholder
Funding immediately prior to the provision of Shareholder
Funding by that Shareholder on that date; and
(3) DSCR: if, on any Calculation Date, there is a breach by the
Borrower of its obligations under Clause 16(16)(b) or Clause
16(16)(c) of the Credit Agreement, each Shareholder shall
(without demand by the Borrower, the Agent or any Bank)
severally provide Shareholder Funding to the Borrower on
that Calculation Date in an amount equal to its Equity
Commitment Percentage of the lower of (a) the amount (as
determined by the Agent) to enable the Borrower to meet any
shortfall in its ability to meet all payments referred to in
component "B" of the definition of DSCR falling due during
the next succeeding Calculation Period commencing on that
Calculation Date and (b) the difference between (i)
S$720,000,000 and (ii) the aggregate amount of Shareholder
Funding immediately prior to the provision of Shareholder
Funding by that Shareholder on that Calculation Date.
(B) Obligations Unconditional: The obligations of the Shareholders under this
Clause are unconditional and absolute, irrespective of (1) any event, however
fundamental, outside the control of the Borrower or any Shareholder or any other
person preventing the Borrower from achieving Completion by the Scheduled
Completion Date, (2) any winding-up, liquidation or dissolution of the Borrower,
(3) any Event of Default or action taken by the Agent or any Bank under the
Financing Documents or any enforcement of any security constituted by any
Financing Document, (4) whether the Project or the business of the Borrower is
being carried on by any receiver, judicial manager or other person and (5) any
other circumstances whatsoever.
(C) Subscription Procedures: (1) The Borrower and each Shareholder shall do all
such things as may be necessary on their part for the provision of Shareholder
Funding required pursuant to this Agreement.
(2) If for any reason whatsoever (including, without limitation, the
winding-up, liquidation or dissolution of the Borrower or failure of the
Borrower to issue shares or to accept payment), a Shareholder does not or cannot
provide Shareholder Funding, that Shareholder will nevertheless, at such times
as are specified in this Clause, pay to the Borrower the amount it would
otherwise have been obliged to pay by way of Shareholder Funding, which shall be
deemed to discharge its obligation to provide that Shareholder Funding.
(3) If a Shareholder makes a payment under paragraph (2), the Borrower
will be liable (on the same terms and conditions) to that Shareholder for the
amount of the payment as if it had constituted Shareholder Funding by way of
subscription moneys for shares or subordinated loans (as appropriate).
(D) Subordinated Loans: If the Shareholders' obligations under this Clause are
fulfilled by means of loans to the Borrower (whether from any of or all the
Shareholders or from some other party), each of the Borrower and the
Shareholders agrees that such loans shall:-
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(1) be unsecured;
(2) not be subject to any payment of interest until after
the Discharge Date (although interest may accrue on
it prior to the Discharge Date); and
(3) be subordinated to the Senior Indebtedness in the
manner set out in this Agreement (Provided that,
notwithstanding anything to the contrary contained in
this Agreement, the aggregate amount of such loans
which shall be subordinated to the Senior
Indebtedness in the manner set out in this Agreement
shall not exceed the difference between S$720,000,000
and the aggregate amount of Shareholding Funding
provided by the Shareholders by way of subscription
moneys for shares).
3. SUBORDINATION
(A) Subordination: The Shareholders and the Borrower hereby agree with and
undertake to the Agent and each of the Banks that, notwithstanding anything to
the contrary contained in any agreement or other document constituting or
evidencing the Subordinated Indebtedness, before the Discharge Date the
Subordinated Indebtedness and the rights and claims of the Shareholders in
relation to the Subordinated Indebtedness are subordinated to the Senior
Indebtedness and the respective rights and claims of the Banks in relation to
the Senior Indebtedness and accordingly, subject as provided in this Agreement,
payments of any amount of the Subordinated Indebtedness (whether in the event of
the winding-up, liquidation or dissolution of the Borrower or otherwise) are
conditional upon all of the Senior Indebtedness having first been fully
satisfied and discharged and no payment of any amount of the Subordinated
Indebtedness which, but for this Agreement, would otherwise fall due for payment
will fall so due, and instead such payment will fall due only if and when the
Senior Indebtedness has been fully satisfied and discharged and, if the
Subordinated Indebtedness or any part thereof is paid by or on behalf of the
Borrower to any Shareholder, that payment shall be forthwith paid over by that
Shareholder to the Agent.
(B) Turnover: Without prejudice to the provisions of sub-Clause (A) above, if
any amount of Subordinated Indebtedness is discharged or purported to be
discharged by payment, repayment, prepayment, set-off or in any other manner in
contravention of sub-Clause (A) above or Clause 4 (and, for the avoidance of
doubt, any payment of consideration, discount or benefit given or credit terms
granted under any of the Excluded Transactions shall be deemed not to be a
discharge or purported discharge of any part of the Subordinated Indebtedness),
the relevant Shareholder shall:-
(1) (if the Shareholder actually receives the amount
discharged or purported to be discharged) immediately
pay it to the Agent for application towards the
Senior Indebtedness; and
(2) (if the Shareholder does not, as a result of
discharge by set-off or otherwise, actually receive
the amount discharged or purported to be discharged)
pay to the Agent an amount equal to that discharged
or purported to be discharged.
(C) Application: Any amount received by the Agent from any of the Shareholders,
or any person on its behalf, under sub-Clause (A) or (B) above shall be applied
in the following
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manner and order:-
(1) first, in or towards payment of any costs, charges
and expenses incurred by the Agent then due and
payable under this Agreement and the other Financing
Documents;
(2) secondly, in or towards payment of the Senior
Indebtedness (and in the event that such sums are
insufficient to satisfy in full the Senior
Indebtedness, such sums shall be paid to the Banks in
proportion to their respective shares of the Senior
Indebtedness at the time of payment); and
(3) thirdly, in payment of any surplus to that
Shareholder or any other person lawfully entitled
thereto.
4. AGREEMENT BY BORROWER AND SHAREHOLDERS
(A) By Borrower: The Borrower agrees and undertakes that prior to the Discharge
Date, it shall not, without the prior consent in writing of the Agent and the
Banks:-
(1) make any loans or advances, whether directly or
indirectly, to any of the Shareholders or provide any
guarantee, indemnity or security for or in connection
with any indebtedness or liabilities of any of the
Shareholders or otherwise enter into any transactions
with any of the Shareholders other than (a) any
transaction on arm's length commercial terms and for
valuable consideration or (b) any Excluded
Transaction;
(2) secure all or any part of the Subordinated
Indebtedness;
(3) redeem, purchase or otherwise acquire any of the
Subordinated Indebtedness;
(4) repay or prepay any, or pay any interest, fees or
commissions (but without prejudice to accrual
thereof) on, or by reference to, any of the
Subordinated Indebtedness otherwise than in
accordance with the terms of this Agreement; or
(5) take or omit to take any action whereby the
subordination of the Subordinated Indebtedness or any
part thereof to the Senior Indebtedness may be
terminated, impaired or adversely affected.
(B) By Shareholders: Except as otherwise expressly provided in this Agreement,
none of the Shareholders shall, without the prior consent in writing of the
Agent and the Banks, prior to the Discharge Date:-
(1) ask, demand, xxx for, take or receive, directly or
indirectly, whether by exercise of set-off,
counterclaim or in any other manner, or recover or
enforce payment of any Subordinated Indebtedness
(provided that, for the avoidance of doubt, nothing
under this paragraph (1) shall prohibit any asking,
demand, suit for, taking or receipt, or recovery or
enforcement of, any payment due by the Borrower under
any of the Excluded
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Transactions);
(2) take any security from the Borrower or any other
person in respect of any Subordinated Indebtedness
and any security taken notwithstanding the
undertaking in this paragraph (2) shall be held by
the relevant Shareholder in trust for the Agent;
(3) make or enforce any claim or right against the
Borrower or prove in competition with the Agent or
any Bank in respect of the performance of any
obligation under this Agreement;
(4) assign, transfer, sell, charge or purport to assign,
transfer, sell, charge or otherwise dispose or
purport to dispose of the whole or any part of or any
interest in any rights which it may from time to time
and for the time being have against the Borrower in
respect of the Subordinated Indebtedness; or
(5) take or omit to take any action whereby the
subordination of the Subordinated Indebtedness or any
part thereof to the Senior Indebtedness may be
terminated, impaired or adversely affected.
5. REPRESENTATIONS AND WARRANTIES
(A) By Shareholders: Each of the Shareholders severally
represents and warrants to and for the benefit of the Agent and each of the
Banks in relation to itself that:-
(1) Status: it is a company duly incorporated and validly
existing under the laws of Singapore (in the case of
CSM and EDBI) or the Netherlands (in the case of
ATE), and has the power and authority to own its
assets and to conduct the business which it conducts
and/or proposes to conduct;
(2) Powers: it has the power to enter into, exercise
its rights and perform and comply with its
obligations under this Agreement;
(3) Authorisations and Consents: all action, conditions
and things required to be taken, fulfilled and done
(including the obtaining of any necessary consents)
in order (a) to enable it lawfully to enter into,
exercise its rights and perform and comply with its
obligations under this Agreement, (b) to ensure that
those obligations are valid, legally binding and
enforceable, and (c) to make this Agreement
admissible in evidence in the courts of Singapore and
the Netherlands have been taken, fulfilled and done;
(4) Non-Violation of Laws: its entry into, exercise of
its rights and/or performance of or compliance with
its obligations under this Agreement do not and will
not violate, or exceed any power or restriction
granted or imposed by, (a) any law to which it is
subject or (b) its Memorandum and Articles of
Association;
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(5) Obligations Binding: its obligations under this
Agreement are valid, binding and enforceable;
(6) Non-Violation of Other Agreements: its entry into,
exercise of its rights and/or performance of or
compliance with its obligations under this Agreement
do not and will not violate, to an extent or in a
manner which has or will have a material adverse
effect on it, any agreement to which it is a party or
which is binding on it or its assets;
(7) Litigation: no litigation, arbitration or
administrative proceeding is current or pending (a)
to restrain the entry into, exercise of its rights
under and/or performance or enforcement of or
compliance with its obligations under this Agreement
or (b) which has or will have a material adverse
effect on it;
(8) Winding-up: no meeting has been convened for its
winding-up or for the appointment of a receiver,
trustee, judicial manager or similar officer of it,
its assets or any of them, no such step is intended
by it and, so far as it is aware, no petition,
application or the like is outstanding for its
winding-up or for the appointment of a receiver,
trustee, judicial manager or similar officer of it,
its assets or any of them;
(9) No Default: as far as it is aware after having made
all due and proper enquiries, no Event of Default or
Potential Event of Default has occurred, and it is
not in breach of or default under any agreement to an
extent or in a manner which has or will have a
material adverse effect on it; and
(10) Repetition: each of the above representations and
warranties will be correct and complied with in all
material respects at all times up to the Termination
Date as if repeated then by reference to the then
existing circumstances.
(B) By CSM: CSM further represents and warrants to and for the benefit of the
Agent and each of the Banks that:-
(1) Shareholding: CSM is (either directly or through any
one or more of its wholly-owned subsidiaries) the
legal and beneficial owner of at least 51 per cent.
of the issued share capital of the Borrower and
Singapore Technologies Pte Ltd is (either directly or
through any one of more of its wholly-owned
subsidiaries) the legal and beneficial owner of at
least 51 per cent. of the issued share capital of
CSM;
(2) Accounts: its audited accounts and consolidated
accounts (if any) as at 31st December, 1996 and for
the financial year then ended and as delivered to the
Agent (with copies of the reports and approvals
referred to in (a) below):-
(a) include such financial statements as are
required by the laws of Singapore and, save
as stated in the notes thereto, were
prepared, audited, examined, reported on and
approved in
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accordance with accounting principles and
practices generally accepted in Singapore
and consistently applied and in
accordance with the laws of Singapore and
its Memorandum and Articles of Association
(or other constitutive documents);
(b) together with those notes, give a true and
fair view of its state of affairs and
financial condition and operations (or, in
the case of consolidated accounts, the
consolidated state of affairs and financial
condition and operations of CSM and its
subsidiaries) as at that date and for the
financial year then ended; and
(c) together with those notes and to the extent
required by accounting principles, standards
and practices generally accepted in
Singapore disclose or reserve against all
liabilities (contingent or otherwise) of the
relevant person(s) as at that date and all
material unrealised or anticipated losses
from any commitment entered into by the
relevant person(s) and which existed on that
date;
(3) No Material Adverse Change: there has been no material
adverse change in its financial condition or operations
since 31st December, 1997 nor in the consolidated
financial condition or operations of it and its
subsidiaries since that date; and
(4) Repetition: the representation and warranty in
paragraph (1) will be correct and complied with in
all respects so long as any sum remains to be lent or
remains payable under the Credit Agreement as if
repeated then by reference to the then existing
circumstances and each of the representations and
warranties in paragraphs (2) and (3) will be correct
and complied with in all material respects at all
times up to the Termination Date as if repeated then
by reference to the then existing circumstances.
(C) By EDBI: EDBI further represents and warrants to and for the benefit of the
Agent and each of the Banks that EDBI is, on the date of this Agreement, the
legal and beneficial owner of not less than 19 per cent. of the issued share
capital of the Borrower.
(D) By ATE: ATE further represents and warrants and for the benefit of the Agent
and each of the Banks that:-
(1) Shareholding: ATE has an effective shareholding in
not less than 30 per cent. of the issued share
capital of the Borrower and ATI (either directly or
through any one or more of its subsidiaries in which
it owns not less than 95 per cent. of the issued
share capital of that subsidiary) has an effective
shareholding in not less than 30 per cent. of the
issued share capital of the Borrower for a period of
not less than four years from the date of the Joint
Venture Agreement;
(2) Information Pack: at 13th October, 1999, the
information in the Information Pack relating to, and
provided by, ATI was true, complete and
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accurate in all material respects;
(3) No Material Adverse Change: there has been no
material adverse change in the financial condition
or operations of ATI since 13th October, 1999; and
(4) Repetition: the representation and warranty in
paragraph (1) will be correct and complied with in
all respects so long as any sum remains to be lent or
remains payable under the Credit Agreement as if
repeated then by reference to the then existing
circumstances and the representation and warranty in
paragraph (2) will be correct and complied with in
all material respects at all times up to the
Termination Date as if repeated then by reference to
the then existing circumstances.
6. UNDERTAKINGS
(A) By Shareholders: (1) Each of the Shareholders severally
undertakes that, at all times prior to the Termination Date:-
(a) Litigation: it will, as soon as reasonably
practicable, deliver to the Agent for distribution to
the Banks details of any litigation, arbitration or
administrative proceeding which, if to its knowledge
had been current or pending at the date of this
Agreement, would have rendered the representation and
warranty in Clause 5(A)(7) incorrect;
(b) Other Information: it will, as soon as reasonably
practicable, deliver to the Agent for distribution to
the Banks such other information relating to its
financial condition or business of it as the Agent
(or any Bank through the Agent) may from time to time
reasonably require (except for information of a
proprietary nature or which is reasonably regarded by
it as confidential); and
(c) Further Assurance: it will from time to time on
reasonable request by the Agent acting on the
instructions of the Majority Banks do or procure the
doing of all such acts and will execute or procure
the execution of all such documents as may be
reasonably necessary for giving full effect to this
Agreement or securing to the Agent and the Banks the
full benefits of all rights, powers and remedies
conferred upon the Agent and the Banks in this
Agreement.
(2) Each of the Shareholders severally undertakes that, so long as any
sum remains to be lent or remains payable under the Credit Agreement:-
(a) No Winding-up: it will not propose or vote in
favour of any resolution for the winding-up,
liquidation or dissolution of the Borrower; and
(b) Dividends: it will exercise all voting rights
attaching to the shares in the capital of the
Borrower for the time being held by it so as to
ensure that the Borrower does not declare or pay any
dividend otherwise then in accordance with Clause
16(13) of the Credit Agreement.
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(B) By CSM: (1) CSM further undertakes that, so long as any sum remains to be
lent or remains payable under the Credit Agreement, it will be (either directly
or through any one or more of its wholly-owned subsidiaries) the legal and
beneficial owner of at least 51 per cent. of the issued share capital of the
Borrower and Singapore Technologies Pte Ltd will be (either directly or through
any one or more of its wholly-owned subsidiaries) the legal and beneficial owner
of at least 51 per cent. of the issued share capital of CSM.
(2) CSM further undertakes that, at all times prior to the Termination
Date, it will, as soon as available and in any event within 180 days after the
end of each of its financial years (beginning with the current one), deliver to
the Agent enough copies for the Banks of its audited accounts (both consolidated
and unconsolidated) as at the end of and for that financial year.
(C) By EDBI: EDBI further undertakes that, at all times prior to the Termination
Date, it will deliver to the Agent as soon as available and in any event within
180 days after the end of each of its financial years (beginning with the
current one), enough copies for the Banks of a statement as to its share capital
and reserves as at the end of and for that financial year.
(D) By ATE: (1) ATE further undertakes that, so long as any sum remains to be
lent or remains payable under the Credit Agreement, ATI (either directly or
through one or more of its subsidiaries in which it owns not less than 95 per
cent. of the issued share capital of that subsidiary) will have an effective
shareholding in not less than 30 per cent. of the issued share capital of the
Borrower for a period of not less than four years from the date of the Joint
Venture Agreement.
(2) ATE further undertakes that, at all times prior to the
Termination Date:-
(a) Preparation of Accounts: it will ensure that all
accounts of ATI to be delivered by it under this
Agreement are prepared in such manner that they will:-
(i) include such financial statements as are required by
the laws of the United States of America and, save as
stated in the notes thereto, were prepared, audited,
examined, reported on and approved in accordance with
accounting principles and practices generally accepted
in the United States of America consistently applied
and in accordance with the laws of the United States of
America and its Memorandum and Articles of Association
(or other constitutive documents);
(ii) together with those notes, give a true and fair view of
its state of affairs and financial condition and
operations (or, in the case of consolidated accounts,
the consolidated state of affairs and financial
condition and operations of ATI and its subsidiaries)
as at that date and for the financial year then ended;
and
(iii) together with those notes and to the extent required
by accounting principles, standards and practices
generally accepted in the United States of America
disclose or reserve against all liabilities (contingent
or otherwise) of the relevant person(s) as at
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that date and all material unrealised or
anticipated losses from any commitment entered into
by the relevant person(s) and which existed on that
date; and
(b) it will, as soon as available and in any event within
180 days after the end of each of its financial years
(beginning with the current one), deliver, or cause
to be delivered, to the Agent enough copies for the
Banks (on the basis of one copy for each Bank) of the
published annual report of ATI as at the end of and
for that financial year.
7. PAYMENTS
(A) Taxes: (1) All sums payable by the Shareholders under this Agreement shall
be paid (1) free of any restriction or condition, (2) free and clear of and
(except to the extent required by law) without any deduction or withholding for
or on account of any tax and (3) without deduction or withholding (except to the
extent required by law) on account of any other amount, whether by way of
set-off or otherwise.
(2) If any of the Shareholders or any other person (whether or not a
party to, or on behalf of a party to, this Agreement) must at any time deduct or
withhold any tax or other amount from any sum paid or payable by, or received or
receivable from, that Shareholder under this Agreement, that Shareholder shall
pay such additional amount as is necessary to ensure that the Agent or, as the
case may be, the Bank to which that sum is due, receives on the due date and
retains (free from any liability other than tax on its own overall net income) a
net sum equal to what it would have received and so retained had no such
deduction or withholding been required or made.
(3) If any of the Shareholders or any other person (whether or not a
party to, or on behalf of a party to, this Agreement) must at any time pay any
tax or other amount on, or calculated by reference to, any sum received or
receivable by the Agent or, as the case may be, any of the Banks from that
Shareholder under this Agreement (except for a payment by the Agent or a Bank of
tax on its own overall net income), that Shareholder shall pay or procure the
payment of that tax or other amount before any interest or penalty becomes
payable or, if that tax or other amount is payable and paid by the Agent or any
Bank, shall reimburse it on demand for the amount paid by it.
(4) Within 30 days after paying any sum from which it is required by
law to make any deduction or withholding, and within 30 days after the due date
of payment of any tax or other amount which it is required by paragraph (3)
above to pay, the relevant Shareholder shall deliver to the Agent evidence
reasonably satisfactory to the Agent or, as the case may be, the relevant Bank
of that deduction, withholding or payment and (where remittance is required) of
the remittance thereof to the relevant taxing or other authority.
(5) As soon as any of the Shareholders is aware that any such
deduction, withholding or payment is required (or any change in any such
requirement), that Shareholder shall notify the Agent.
(B) Goods and Services Tax: Each of the Shareholders shall also pay to the Agent
and each Bank on demand, in addition to any amount payable by that Shareholder
under this Agreement, any goods and services, value added or other similar tax
payable in respect of that
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amount (and any reference in this Agreement to that amount shall be deemed to
include any such taxes payable in addition to it).
(C) Refund of Tax Credits: If:-
(1) any Shareholder makes a payment under sub-Clause
(A)(2) or (3) (a "Tax Payment") in respect of a
payment to a Bank under this Agreement; and
(2) that bank determines in its absolute discretion that
it has obtained a refund of tax or obtained and used
a credit against tax on its overall net income (a
"Tax Credit") which that Bank in its absolute
discretion is able to identify as attributable to
that Tax Payment,
then, if in its absolute discretion it can do so without any adverse
consequences for that Bank, that Bank shall reimburse that Shareholder such
amount as that Bank in its absolute discretion determines to be such proportion
of that Tax Credit as will leave that Bank (after that reimbursement) in no
better or worse position in respect of its worldwide tax liabilities than it
would have been in if no Tax Payment had been required. A Bank shall have an
absolute discretion as to whether to claim any Tax Credit (and, if it does
claim, the extent, order and manner in which it does so) and whether any amount
is due from it under this sub-Clause (C) (and, if so, what amount and when). No
Bank shall be obliged to disclose any information regarding its tax affairs and
computations.
(D) Currency Indemnity: (1) Any amount received or recovered by the Agent or any
Bank in respect of any sum expressed to be due to it from any Shareholder under
or in connection with this Agreement in a currency (such currency being referred
to as the "Relevant Currency") other than the currency in which such sum is
expressed to be due under this Agreement (such currency being referred to as the
"Currency of Account") whether as a result of, or of the enforcement of, a
judgment or order of a court or tribunal of any jurisdiction, in the winding-up
of that Shareholder or otherwise, shall only constitute a discharge to that
Shareholder to the extent of the amount in the Currency of Account which the
recipient is able, in accordance with its usual practice, to purchase with the
amount of the Relevant Currency so received or recovered 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).
(2) If that amount in the Currency of Account is less than the amount
of the Currency of Account due to the recipient under or in connection with this
Agreement, that Shareholder shall indemnify it against any loss sustained by it
as a result. In any event, that Shareholder shall indemnify the recipient
against the cost of making any such purchase. For the purpose of this sub-Clause
(D), it will be sufficient for the recipient to demonstrate that it would have
suffered a loss had an actual exchange or purchase been made.
(3) Each of the indemnities in this sub-Clause (D) constitutes 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 the Agent, any Arranger and/or
any Bank 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 other judgment or order.
8. NATURE OF RIGHTS AND OBLIGATIONS
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(A) No Release: The obligations of the Shareholders under this Agreement
(excluding, for the avoidance of doubt, any obligation of the Shareholders under
this Agreement which has been discharged) shall not be discharged, impaired or
otherwise affected by any act, omission, matter or thing which, but for this
sub-Clause (A), may operate to release or otherwise exonerate any of the
Shareholders from its obligations under this Agreement in whole or in part,
including without limitation and whether or not known to it or any other
person:-
(1) any variation in or to the Project;
(2) any time, indulgence, concession waiver or consent at
any time given by the Agent and/or any of the Banks in
respect of the Senior Indebtedness or any part thereof
or to the Borrower, any Shareholder or any other
person;
(3) any amendment or supplement to any provision of any
Financing Document or any other agreement, security,
guarantee or indemnity;
(4) the making or the absence of any demand on the
Borrower, any Shareholder or any other person for
payment;
(5) the enforcement or absence of enforcement of or release
of any of the Financing Documents or any other
agreement, security, guarantee or indemnity held in
respect of the Senior Indebtedness;
(6) the winding-up, insolvency, bankruptcy, amalgamation,
reconstruction or reorganisation of the Borrower, any
Shareholder or any other person;
(7) the illegality, invalidity or unenforceability of or
any defect in any provision of any Financing Document
or any other agreement, security, guarantee or
indemnity or any of the obligations of the Borrower,
any Shareholder or any other person thereunder, whether
on the grounds of ultra xxxxx, not being in the
interests of the Borrower or any other person, not
having been duly authorised, executed or delivered by
the Borrower or any other person or for any reason
whatsoever; or
(8) any other act, event or omission which but for this
provision would or might operate to impair or discharge
the obligations of any Shareholder under this
Agreement.
(B) Continuing Obligations: The obligations of the Shareholders and the Borrower
under this Agreement are continuing obligations, will not be discharged by any
intermediate payment and will remain in full force and effect until the
obligations have been fulfilled (for the avoidance of doubt, nothing in this
sub-Clause (B) shall affect any obligations of the Borrower or any Shareholder
which has been discharged by the due and proper performance by the Borrower or
such Shareholder of such obligations).
(C) Reinstatement: (1) Any settlement or discharge between the Agent or any of
the Banks and any of the Shareholders shall be conditional upon no security or
payment to the Agent or such Bank by the Borrower or any other person being
avoided or reduced by virtue of any
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provision or enactment relating to bankruptcy, insolvency or winding-up for the
time being in force or by virtue of any obligation to give effect to any
preference or priority and the Agent or such Bank (as the case may be) shall be
entitled to recover the value or amount of any such security or payment from
that Shareholder subsequently as if such settlement or discharge had not
occurred.
(2) Without prejudice to the provisions of paragraph (2), where any
discharge (whether in respect of the obligations of any Shareholder or any
security for those obligations or otherwise) is made in whole or in part or any
arrangement is made on the faith of any payment, security or other disposition
which is avoided or must be repaid on bankruptcy, insolvency or winding-up or
otherwise without limitation, the liability of the Shareholders under this
Agreement shall, unless the Agent and the Banks agree otherwise, continue as if
the discharge or arrangement, as the case may be, had not occurred.
(D) Failure by Shareholder: The failure of a Shareholder or the Borrower to
perform or comply with any of its obligations under this Agreement shall not
release any other Shareholder or the Borrower of its obligations under this
Agreement.
(E) Immediate Recourse: Each Shareholder waives any right which it may have of
first requesting the Agent or any of the Banks to proceed against or enforce any
other rights or security or claim payment from the Borrower, any other
Shareholder or any other person before claiming from the Shareholder under this
Agreement.
(F) Additional Security: This Agreement shall be in addition to and shall not in
any way be prejudiced by any other security now or hereafter held by the Agent
or any Bank as security for the obligations of the Borrower under the Credit
Agreement.
9. EXPENSES
(A) By Shareholders: Each of the Shareholders shall pay on demand all costs and
expenses (including legal expenses on a full indemnity basis) reasonably
incurred by the Agent and/or any of the Banks in protecting or enforcing any
rights against it under this Agreement.
(B) By Borrower: The Borrower shall pay on demand all costs and expenses
(including legal expenses on a full indemnity basis) reasonably incurred by the
Agent and/or any of the Banks in protecting or enforcing any rights against it
under this Agreement.
10. BENEFIT OF AGREEMENT
(A) Shareholders/Borrower: The Borrower may not assign or transfer any of its
rights, benefits or obligations under this Agreement. None of the Shareholders
may assign or transfer any of their respective rights, benefits or obligations
under this Agreement other than in the following manner and upon the following
terms:-
(1) in the case of EDBI, it may transfer all of its rights, benefits and
obligations under this Agreement to any of its wholly-owned
subsidiaries which has acquired all the shares owned by EDBI in the
Borrower, provided that (a) the transferee shall have agreed in
writing to the other parties to this Agreement to assume all the
obligations of EDBI under this Agreement and (b) EDBI and the
transferee shall have undertaken to the other parties to this
Agreement to ensure that, in the event that the
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transferee ceases to be a wholly-owned subsidiary of EDBI, the
transferee shall transfer all its rights, benefits and obligations
under this Agreement to EDBI or a wholly-owned subsidiary of EDBI; and
(2) in the case of ATE, it may transfer all of its rights, benefits and
obligations under this Agreement to a ATI Entity (provided that, at
the time of such transfer, ATI owns at least 95 per cent. of the
issued share capital of such ATI Entity) which has acquired all the
shares owned by ATE in the Borrower, provided that (a) such ATI Entity
shall have undertaken to the other parties to this Agreement to assume
all the obligations of ATE under this Agreement and (b) ATE and such
ATI Entity shall have undertaken to the other parties to this
Agreement to ensure that, in the event ATI ceases to own at least 95
per cent. of the issued share capital of such ATI Entity, such ATI
Entity shall transfer all its rights, benefits and obligations under
this Agreement to ATI, ATE or another ATI Entity (of which ATI owns at
least 95 per cent. of its issued share capital).
(B) Agent/Banks: (1) Each of the Agent and the Banks may assign all or part of
its rights under this Agreement without the consent of any party to any assignee
or transferee under the Credit Agreement (but the assignor shall give to the
Borrower prior notice of such assignment or transfer). Any such assignee 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 assigned to it.
(2) None of the Shareholders and the Borrower shall be liable for any
costs or expenses which may be incurred in connection with any assignment or
transfer of any of the rights of the Agent or any of the Banks under this
Agreement.
(C) Disclosure of Information: The Agent or any of the Banks may disclose on a
confidential basis to any other party to the Financing Documents or any of its
other branches or its headquarters or to an actual or potential New Lending
Bank, assignee, sub-participant or the like such information about the Borrower,
any Shareholder or any other person as it may think fit and may disclose to such
party such information about the Borrower or any of the Shareholders with the
prior consent in writing of the Borrower or, as the case may be, such
Shareholder (Provided that, at any time and from time to time after the making
of a declaration under Clause 17(B) of the Credit Agreement, (1) no such consent
will be required for any such disclosure and (2) the Agent or the relevant Bank
making any such disclosure shall, if practicable, consult with the Borrower or,
as the case may be, such Shareholder prior to making any such disclosure and
shall consider in good faith any request from the Borrower or, as the case may
be, such Shareholder to the Agent or such Bank not to make any such disclosure
or to delay making any such disclosure).
(D) Limitation on Certain Obligations: If, at the time of any assignment or
transfer by a Bank, circumstances exist which would oblige any Shareholder to
pay to the assignee or transfer under Clause 7(A) any sum in excess of the sum
(if any) which it would have been obliged to pay to that Bank under that Clause
in the absence of that assignment or transfer, that Shareholder shall not be
obliged to pay that excess.
11. WAIVERS
No failure on the part of the Agent or any of the Banks to exercise, and no
delay on its part in exercising, any right or remedy under this Agreement will
operate as a waiver
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thereof, nor will any single or partial exercise of any right or remedy preclude
any other or further exercise thereof or the exercise of any other right or
remedy. The rights and remedies provided in this Agreement are cumulative and
not exclusive of any other rights or remedies (whether provided by law or
otherwise).
12. COMMUNICATIONS
(A) Addresses: Each communication under this Agreement shall be made by fax,
telex or otherwise in writing. Each communication or document to be delivered to
any party under this Agreement shall be sent to that party at the fax number,
telex number or address, and marked for the attention of the person (if any),
from time to time designated by that party to the Agent (or, in the case of the
Agent, by it to each other party) for the purpose of this Agreement. The initial
fax number, telex number, address and person (if any) so designated by each
party are set out against its name at the end of this Agreement.
(B) Deemed Delivery: Any communication under this Agreement shall be deemed to
have been received (if sent by fax or telex) on the day of despatch or (in any
other case) when left at the address required by sub-Clause (A) above or within
five days after being sent by prepaid post (by airmail if to another country)
addressed to it at that address.
13. PARTIAL INVALIDITY
The illegality, invalidity or unenforceability of any provision of this
Agreement under the law of any jurisdiction shall not affect its legality,
validity or enforceability under the law of any other jurisdiction nor the
legality, validity or enforceability of any other provision.
14. GOVERNING LAW AND JURISDICTION
(A) Governing Law: This Agreement shall be governed by, and construed in
accordance with, the laws of Singapore.
(B) Singapore Courts: For the benefit of the Agent and each Bank, all the
parties irrevocably agree that the courts of Singapore are to have jurisdiction
to settle any disputes which may arise out of or in connection with this
Agreement and that, accordingly, any legal action or proceedings arising out of
or in connection with this Agreement ("Proceedings") may be brought in those
courts and each of the Borrower and the Shareholders irrevocably submits to the
jurisdiction of those courts.
(C) Other Competent Jurisdiction: Nothing in this Clause shall limit the right
of the Agent and/or any Bank to take Proceedings against the Borrower or any of
the Shareholders in any other court of competent jurisdiction nor shall the
taking of Proceedings in one or more jurisdictions preclude the Agent and/or any
Bank from taking Proceedings in any other jurisdiction, whether concurrently or
not.
(D) Venue: Each of the Borrower and the Shareholders irrevocably waives any
objection which it may at any time have to the laying of the venue of any
Proceedings in any court referred to in this Clause and any claim that any such
Proceedings have been brought in an inconvenient forum.
(E) Service of Process: (1) ATE irrevocably appoints Agilent Technologies
Singapore
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Pte Ltd (now of 000X, Xxxxxxxxx Xxxx, #00-00, #00-00/00, Xxxxxxxxx Xxxxxxxxxx X,
Xxxxxxxxx 000000, Attention: Legal Counsel) to receive, for it and on its
behalf, service of process in any Proceedings in Singapore. Such service shall
be deemed completed on delivery to the process agent (whether or not it is
forwarded to and received by ATE). If for any reason the process agent ceases to
be able to act as such or no longer has an address in Singapore, ATE irrevocably
agrees to appoint a substitute process agent acceptable to the Agent, and to
deliver to the Agent a copy of the new agent's acceptance of that appointment,
within 30 days. Nothing shall affect the right to serve process in any other
manner permitted by law.
(F) Consent to Enforcement, etc.: Each of the Borrower and the Shareholders
irrevocably and generally consents in respect of any Proceedings anywhere to the
giving of any relief or the issue of any process in connection with those
Proceedings including, without limitation, the making, enforcement or execution
against any assets whatsoever (irrespective of their use or intended use) of any
order or judgment which may be made or given in those Proceedings.
(G) Waiver of Immunity: Each of the Borrower and the Shareholders irrevocably
agrees that, should the Agent or any Bank take any Proceedings anywhere (whether
for an injunction, specific performance, damages or otherwise), no immunity (to
the extent that it may at any time exist, whether on the grounds of sovereignty
or otherwise) from those Proceedings, from attachment (whether in aid of
execution, before judgment or otherwise) of its assets or from execution of
judgment shall be claimed by it or on its behalf or with respect to its assets,
any such immunity being irrevocably waived. Each of the Borrower and the
Shareholders irrevocably agrees that it and its assets are, and shall be,
subject to such Proceedings, attachment or execution in respect of its
obligations under this Agreement.
68
72
I N W I T N E S S W H E R E O F this Supplemental
Agreement has been entered into on the date stated at the beginning.
THE BORROWER
CHARTERED SILICON PARTNERS PTE LTD
60, Xxxxxxxx Xxxxxxxxxx Xxxx X,
Xxxxxx 0,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Attention: Legal Department
By: /s/ Chia Song Hwee Witness: /s/ Xxxxxx Hon
-------------------------- ---------------------------
Name: Chia Song Hwee Name: Xxxxxx Hon
------------------------ -------------------------------
Title: Chief Financial Officer Address:
----------------------- ---------------------------
THE ARRANGERS
ABN AMRO BANK N.V.,
SINGAPORE BRANCH
00, Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 24396
Attention: Xx Xxxxxxxx Xxxx/Xx Xxxxxxx Low
By: /s/ Goh Xxxxx Xxxxx By: /s/ Xxxxx Xxx
------------------------- ---------------------------
Name: Goh Xxxxx Xxxxx Name: Xxxxx Xxx
----------------------- -------------------------------
Title: Senior Vice President Title: Country Manager
---------------------- ---------------------------
69
00
XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXX,
XXXXXXXXX BRANCH
000, Xxxxx Xxxx, #00-00,
Xxx Xxxxxxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 21445 BAYSIN
Attention: Xx Xx Xxxxx Inn
By: /s/ Xx Xxxxx Inn By: /s/ Xxx Xxx Yue
------------------------- --------------------------------
Name: Xx Xxxxx Inn Name: Xxx Xxx Yue
----------------------- -------------------------------
Title: Vice President Title: Assistant Vice President
---------------------- -----------------------------
CITIBANK, N.A.,
SINGAPORE BRANCH
0, Xxxxxxx Xxx, #00-00,
XXX Xxxxxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 24584 CITBANK
Attention: Xx Xxxx Xxxx/Xx Xxx Xxxxx Xxxx
By: /s/ Xxxx Xxxx
-------------------------
Name: Xxxx Xxxx
-----------------------
Title: Vice President
----------------------
70
74
OVERSEAS UNION BANK LIMITED
0, Xxxxxxx Xxxxx, 00xx Xxxxx,
XXX Xxxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000/000 0000
Telex Number: RS 23916
Attention: Xx Xxxxxxx Xxxx/Xx Xxxx Xxxx Xxx
By: /s/ Xxxxxxx Xxxx
--------------------------
Name: Xxxxxxx Xxxx
-----------------------
Title: Vice President
-----------------------
THE SUMITOMO BANK, LIMITED,
SINGAPORE BRANCH
0, Xxxxxxx Xxx, #00-00,
XXX Xxxxx Xxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 21656 SUMITBK
Attention: Xx Xxxxxx Xxxx
By: /s/ Kazushige Goto
-----------------------------
Name: Kazushige Goto
--------------------------
Title: Assistant General Manager
--------------------------
71
75
GUARANTOR BANKS
ABN-AMRO BANK N.V.,
SINGAPORE BRANCH
00, Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 24396
Attention: Xx Xxxxxxxx Xxxx/Ms Pauline Low
By: /s/ Goh Xxxxx Xxxxx By: /s/ Xxxxx Xxx
--------------------------- ---------------------------------
Name: Goh Xxxxx Xxxxx Name: Xxxxx Xxx
------------------------ ------------------------------
Title: Senior Vice President Title: Country Manager
------------------------ ------------------------------
BAYERISCHE LANDESBANK GIROZENTRALE,
SINGAPORE BRANCH
000, Xxxxx Xxxx, #00-00,
Xxx Xxxxxxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 21445 BAYSIN
Attention: Xx Xx Xxxxx Inn
By: /s/ Xx Xxxxx Inn By: /s/ Xxx Xxx Yue
-------------------------- ---------------------------------
Name: Xx Xxxxx Inn Name: Xxx Xxx Yue
----------------------- ------------------------------
Title: Vice President Title: Assistant Vice President
----------------------- ------------------------------
72
76
CITIBANK, N.A., SINGAPORE BRANCH
0, Xxxxxxx Xxx, #00-00,
XXX Xxxxxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 24584 CITBANK
Attention: Xx Xxxx Xxxx/Xx Xxx Xxxxx Xxxx
By: /s/ Xxxx Xxxx
--------------------------
Name: Xxxx Xxxx
------------------------
Title: Vice President
-----------------------
OVERSEAS UNION BANK LIMITED
0, Xxxxxxx Xxxxx, 00xx Xxxxx,
XXX Xxxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000/000 0000
Telex Number: RS 23916
Attention: Xx Xxxxxxx Xxxx/Xx Xxxx Xxxx Xxx
By: /s/ Xxxxxxx Xxxx
--------------------------
Name: Xxxxxxx Xxxx
------------------------
Title: Vice President
-----------------------
73
77
THE SUMITOMO BANK, LIMITED,
SINGAPORE BRANCH
0, Xxxxxxx Xxx, #00-00,
XXX Xxxxx Xxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 21656 SUMITBK
Attention: Xx Xxxxxx Xxxx
By: /s/ Kazushige Goto
-----------------------------
Name: Kazushige Goto
-----------------------------
Title: Assistant General Manager
-----------------------------
THE SANWA BANK, LIMITED,
SINGAPORE BRANCH
6, Raffles Quay, #24-01,
Xxxx Xxxxxxx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 28573
Attention: Xx Xxx Soh Wah/Xx Xxx Wee Hian
By: /s/ Tan Teck Soon
-----------------------------
Name: Tan Teck Soon
-----------------------------
Title: Senior Manager
-----------------------------
74
78
THE BANK OF TOKYO-MITSUBISHI, LTD.,
SINGAPORE BRANCH
0, Xxxxxxx Xxxxx, #00-00,
Xxxxxxxx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 24363
Attention: Xx Xxxxxxxx Xxxx (Loan Administration Department)/
Xx Xxx Xxxx Xxxx (Corporate Finance Department)
By: /s/ Xxxxxxx Xxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxx
-----------------------
Title: Deputy General Manager
----------------------
DEN DANSKE BANK AKTIESELSKAB,
SINGAPORE BRANCH
00, Xxxxxxx Xxxxx, #00-00,
Xxxxxxxxx Xxxx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: 28030 DDBSIN
Attention: Mr Jorgen Faenoe/Ms Xxxxxxx Wee
By: /s/ Jorgen Faenoe By:
------------------------- -------------------------
Name: Jorgen Faenoe Name:
----------------------- -----------------------
Title: Manager Title:
---------------------- ----------------------
75
79
THE LENDING BANKS
ABN-AMRO BANK N.V.,
SINGAPORE BRANCH
00, Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 24396
Attention: Xx Xxxxxxxx Xxxx/Xx Xxxxxxx Low
By: /s/ Goh Xxxxx Xxxxx By: /s/ Xxxxx Xxx
----------------------------- -----------------------------
Name: Goh Xxxxx Xxxxx Name: Xxxxx Xxx
--------------------------- ---------------------------
Title: Senior Vice President Title: Country Manager
-------------------------- --------------------------
BAYERISCHE LANDESBANK GIROZENTRALE,
SINGAPORE BRANCH
000, Xxxxx Xxxx, #00-00,
Xxx Xxxxxxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 21445 BAYSIN
Attention: Xx Xx Xxxxx Inn
By: /s/ Xx Xxxxx Inn By: /s/ Xxx Xxx Yue
----------------------------- -----------------------------
Name: Xx Xxxxx Inn Name: Xxx Xxx Yue
--------------------------- ---------------------------
Title: Vice President Title: Assistant Vice President
-------------------------- --------------------------
76
80
CITIBANK, N.A., SINGAPORE BRANCH
0, Xxxxxxx Xxx, #00-00,
XXX Xxxxxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000/426 8959
Telex Number: RS 24584 CITBANK
Attention: Xx Xxxx Xxxx/Xx Xxx Xxxxx Xxxx
By: /s/ Xxxx Xxxx
-----------------------------
Name: Xxxx Xxxx
---------------------------
Title: Vice President
--------------------------
OVERSEAS UNION BANK LIMITED
0, Xxxxxxx Xxxxx, 00xx Xxxxx,
XXX Xxxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000/000 0000
Telex Number: RS 23916
Attention: Xx Xxxxxxx Xxxx/Xx Xxxx Xxxx Xxx
By: /s/ Xxxxxxx Xxxx
-----------------------------
Name: Xxxxxxx Xxxx
---------------------------
Title: Vice President
--------------------------
77
81
THE SUMITOMO BANK, LIMITED,
SINGAPORE BRANCH
0, Xxxxxxx Xxx, #00-00,
XXX Xxxxx Xxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 21656 SUMITBK
Attention: Xx Xxxxxx Xxxx
By: /s/ Kazushige Goto
--------------------------------
Name: Kazushige Goto
------------------------------
Title: Assistant General Manager
-----------------------------
THE BANK OF TOKYO-MITSUBISHI, LTD.,
SINGAPORE BRANCH
0, Xxxxxxx Xxxxx, #00-00,
Xxxxxxxx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 24363
Attention: Xx Xxxxxxxx Xxxx (Loan Administration Department)/
Xx Xxx Xxxx Xxxx (Corporate Finance Department)
By: /s/ Sugiyama, Hajime
--------------------------------
Name: Sugiyama, Hajime
------------------------------
Title: Deputy General Manager
-----------------------------
78
00
XXX XXXXXX XXXX XXXXXXXXXXXX,
XXXXXXXXX BRANCH
00, Xxxxxxx Xxxxx, #00-00,
Xxxxxxxxx Xxxx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: 28030 DDBSIN
Attention: Mr Jorgen Faenoe/Ms Xxxxxxx Wee
By: /s/ Jorgen Faenoe By:
------------------------- ------------------------------
Name: Jorgen Faenoe Name:
----------------------- ----------------------------
Title: Manager Title:
---------------------- ----------------------------
THE AGENT
ABN AMRO BANK N.V.,
SINGAPORE BRANCH
00, Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxx 000000.
Fax Number: 000 0000
Telex Number: RS 24396
Attention: Xx Xxxxx Xxx/Xx Xxxxxxxx Xxx
By: /s/ Goh Xxxxx Xxxxx By: /s/ Xxxxx Xxx
------------------------- ------------------------------
Name: Goh Xxxxx Xxxxx Name: Xxxxx Xxx
----------------------- ----------------------------
Title: Senior Vice President Title: Country Manager
---------------------- ----------------------------
