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Title: |
Facility Agreement |
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Date: |
2005 |
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Preview shows 12KB of 98KB total |
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$42 |
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ID: |
#1129011 |
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Securities and Exchange Commission
ALLEN & GLEDHILL
ADVOCATES & SOLICITORS
CONFORMED COPY
Dated 22 December 2004
CHARTERED SEMICONDUCTOR MANUFACTURING LTD.
AS BORROWER
and
BANK OF AMERICA, NATIONAL ASSOCIATION, SINGAPORE BRANCH
ACTING AS LENDER
US$50,000,000
FACILITY AGREEMENT
ALLEN & GLEDHILL
ONE MARINA BOULEVARD #28-00
SINGAPORE 018989
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
CLAUSE PAGE
<S> <C>
1. DEFINITIONS AND INTERPRETATION................. 1
2. THE FACILITY................................... 7
3. PURPOSE........................................ 7
4. CONDITIONS OF UTILISATION...................... 7
5. UTILISATION.................................... 8
6. REPAYMENT...................................... 8
7. PREPAYMENT AND CANCELLATION.................... 9
8. INTEREST....................................... 10
9. INTEREST PERIODS............................... 11
10. CHANGES TO THE CALCULATION OF INTEREST......... 11
11. FEE............................................ 12
12. TAX GROSS UP AND INDEMNITIES................... 12
13. INCREASED COSTS................................ 14
14. OTHER INDEMNITIES.............................. 15
15. MITIGATION BY THE LENDER....................... 16
16. COSTS AND EXPENSES............................. 17
17. REPRESENTATIONS................................ 17
18. INFORMATION UNDERTAKINGS....................... 19
19. FINANCIAL COVENANTS............................ 21
20. GENERAL UNDERTAKINGS........................... 22
21. EVENTS OF DEFAULT.............................. 25
22. CHANGES TO THE LENDER.......................... 28
23. CHANGES TO THE BORROWER........................ 30
24. CONDUCT OF BUSINESS BY THE LENDER.............. 30
25. PAYMENT MECHANICS.............................. 30
26. SET-OFF........................................ 31
27. NOTICES........................................ 32
28. CALCULATIONS AND CERTIFICATES.................. 32
29. PARTIAL INVALIDITY............................. 33
30. REMEDIES AND WAIVERS........................... 33
31. AMENDMENTS AND WAIVERS......................... 33
32. COUNTERPARTS................................... 33
33. GOVERNING LAW.................................. 33
</TABLE>
THE SCHEDULES
<TABLE>
<CAPTION>
SCHEDULE PAGE
<S> <C>
SCHEDULE 1 Conditions Precedent................... 34
SCHEDULE 2 Requests............................... 35
</TABLE>
-1-
<PAGE>
THIS AGREEMENT is dated 22 December 2004 and made between:
(1) CHARTERED SEMICONDUCTOR MANUFACTURING LTD. (the "BORROWER"); and
(2) BANK OF AMERICA, NATIONAL ASSOCIATION, SINGAPORE BRANCH as lender (the
"LENDER").
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"AFFILIATE" means, in relation to any person, a Subsidiary of that person
or a Holding Company of that person or any other Subsidiary of that
Holding Company.
"ASSOCIATED COMPANY" means, in relation to the Borrower, a corporation in
respect of which the Borrower beneficially owns, directly or indirectly,
at least 20 per cent. of the whole of its issued and paid-up capital.
"AUTHORISATION" means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration.
"AVAILABILITY PERIOD" means the period from and including the date of this
Agreement to and including the date which is 3 Months after the date of
this Agreement.
"AVAILABLE COMMITMENT" means the Lender's Commitment minus:
(a) the amount of any outstanding Loans; and
(b) in relation to any proposed Utilisation, the amount of any Loans
that are due to be made on or before the proposed Utilisation Date.
"BORROWINGS" has the meaning given to it in Clause 19 (Financial
Covenants).
"BREAK COSTS" means the amount (if any) by which:
(a) the interest (excluding the Margin) which the Lender should have
received for the period from the date of receipt of all or any part
of a Loan or Unpaid Sum to the last day of the current Interest
Period in respect of that Loan or Unpaid Sum, had the principal
amount or Unpaid Sum received been paid on the last day of that
Interest Period,
exceeds:
(b) the amount which the Lender would be able to obtain by placing an
amount equal to the principal amount or Unpaid Sum received by it on
deposit with a leading bank in the London interbank market for a
period starting on the Business Day following receipt or recovery
and ending on the last day of the current Interest Period.
<PAGE>
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are open for general business in London and Singapore and (in
relation to any date for payment of US Dollars) New York City.
"COMMITMENT" means US$50,000,000, to the extent not cancelled, reduced or
transferred by the Lender under this Agreement.
"COMPLIANCE CERTIFICATE" means a certificate in form and substance
satisfactory to the Lender.
"CSP AGREEMENT" means the Credit Agreement dated 28 September 2000 made
between (1) Chartered Silicon Partners Pte Ltd, (2) the lead arrangers
named therein, (3) the arrangers named therein, (4) the co-arranger named
therein, (5) the lead manager named therein, (6) the manager named
therein, (7) the guarantor banks named therein, (8) the lending banks
named therein, (9) the agent named therein and (10) the security trustee
named therein.
"CSP DEBT SERVICE RESERVE ACCOUNT" means the deposit account opened and
maintained by the Borrower with the DSRA Account Bank (as defined in the
CSP Agreement), in accordance with the terms of the CSP Agreement.
"DEFAULT" means an Event of Default or any event or circumstance specified
in Clause 21 (Events of Default) which would (with the expiry of a grace
period and/or the giving of notice) be an Event of Default.
"EVENT OF DEFAULT" means any event or circumstance specified as such in
Clause 21 (Events of Default).
"EX-IM BANK" means the Export-Import Bank of the United States and
includes its successors in title.
"EX-IM BANK FACILITY" means the US$652,000,000 loan guarantee facility
granted or to be granted to the Borrower by Ex-Im Bank, to support the
funding provided or to be provided by J P Morgan Chase Bank, N.A. to
finance the export of equipment and supply of services to the Borrower to
build Phase I of Fab 7.
"EX-IM BANK FACILITY ANTICIPATION ACCOUNT" means an account or accounts
opened and maintained or to be opened and maintained by the Borrower with
a financial institution nominated by the Borrower and reasonably
acceptable to Ex-Im Bank, in accordance with the terms of the Ex-Im Bank
Facility.
"FAB 7" means a silicon wafer fabrication facility in Singapore, owned and
designated as such by the Borrower.
"FACILITY" means the term loan facility made available under this
Agreement as described in Clause 2 (The Facility).
"FACILITY OFFICE" means the office or offices notified by the Lender to
the Borrower in writing as the office or offices through which it will
perform its obligations under this Agreement.
-2-
<PAGE>
"FEE LETTER" means any letter or letters dated on or about the date of
this Agreement between the Borrower and the Lender setting out the
front-end fee referred to in Clause 11 (Fee).
"FINANCE DOCUMENT" means this Agreement and any other document designated
as such by the Lender and the Borrower.
"FINANCIAL INDEBTEDNESS" means, in relation to any person, any
indebtedness of that person for or in respect of:
(a) moneys borrowed by that person;
(b) any amount raised by acceptance under any acceptance credit facility
granted to that person;
(c) any amount raised by that person pursuant to any note purchase
facility or the issue of bonds, notes, debentures, loan stock or any
similar instrument;
(d) the amount of any liability of that person in respect of any lease
or hire purchase contract which would, in accordance with GAAP, be
treated as a finance or capital lease;
(e) receivables sold or discounted by that person (other than any
receivables to the extent they are sold or discounted on a
non-recourse basis);
(f) any amount raised by that person under any other transaction
(including any forward sale or purchase agreement) required by GAAP
to be shown as a borrowing in the audited consolidated balance sheet
of the Group;
(g) for the purpose of Clause 21.5 (Cross default) any derivative
transaction entered into by that person in connection with
protection against or benefit from fluctuation in any rate or price
(and, when calculating the value of any derivative transaction, only
the marked to market value shall be taken into account);
(h) shares of that person which are expressed to be redeemable;
(i) for the purpose of Clause 21.5 (Cross default) any counter-indemnity
obligation of that person in respect of a guarantee, indemnity,
bond, standby or documentary letter of credit or any other
instrument issued by a bank or financial institution; and
(j) the amount of any liability of that person in respect of any
guarantee or indemnity given by that person for any indebtedness of
any other person for or in respect of the items referred to in
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