Contract No:
W57912302009001
AMKOR ASSEMBLY & TEST
(SHANGHAI) CO., LTD .
(as Mortgagor)
China Construction Bank Co.,
Ltd
Shanghai Waigaoqiao Free Trade Zone Sub-branch
(as Creditor)
REAL PROPERTY MORTGAGE
AGREEMENT
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1.
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Definitions and Interpretations
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3
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2.
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4
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3.
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4
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4.
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5
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5.
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Representations and Warranty
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6
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6.
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Mortgagor’s Undertakings and
Covenants
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7.
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10
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8.
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Disposal of Mortgaged Assets
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11
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9.
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13
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10.
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13
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11.
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14
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12.
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14
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13.
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Release of Mortgage and
Termination
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14
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14.
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15
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15.
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Governing Law and Jurisdiction
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16.
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17.
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Schedule 1
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Schedule 2
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2
THIS
AGREEMENT is made on
20 th
Jan, 2009 in Shanghai BETWEEN
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(1)
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AMKOR ASSEMBLY & TEST
(SHANGHAI) CO., LTD . (the “ Mortgagor
”) , as mortgagor; and
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(2)
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China Construction Bank Co.;Ltd
Shanghai Waigaoqiao Free Trade Zone Sub-branch
(the “
Creditor ”), as creditor.
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(1)
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The
Mortgagor (as the “Borrower”) has entered into the
Facility Agreement number W57912302009001 USD50,000,000 Working
Capital Facility Agreement (“Facility Agreement”) with
the Creditor (as the “Lender”) prior to the execution
of this Agreement whereunder the Creditor have agreed to grant to
the Mortgagor a working capital loan in an amount of
USD50,000,000;
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(2)
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As
a condition precedent to the drawdown under the Facility Agreement,
the Mortgagor shall enter into this Agreement with the
Creditor.
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1.
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Definitions and
Interpretations
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1.1
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In
this Agreement, the following expressions shall, except otherwise
defined herein, have the following meanings:
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“ Site ” means
the site located in 111, Yinlun Road, Pu Dong, Waigaoqiao Free
Trade Zone District, Shanghai with an area of 171347 square
meters. See Schedule 1 hereof for more details.
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“Facility
Agreement” means the USD50,000,000 working
capital facility agreement numbered as W57912302009001 entered into
by and between the Mortgagor (as the “Borrower”) and
the Creditor (as the “Lender”) on January 20
th
, 2009.
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“ Mortgaged Assets
” means the use right of the stated-owned land, the premises
and other attachments on the land which locates in Shanghai, is
owned by the Mortgagor and is recorded in the “Shanghai Real
Property Certificate” numbered as
HuFangDi(PU)Zi(2004)#110185, HuFangDi(PU)Zi(2004)#110184,
HuFangDi(PU)Zi(2004)110183, HuFangDi(PU)Zi(2004)110166,
HuFangDi(PU)Zi(2004)110182, HuFangDi(PU)Zi(2004)110172,
HuFangDi(PU)Zi(2004)110181, HuFangDi(PU)Zi(2004)110180,
HuFangDi(PU)Zi(2004)110159, HuFangDi(PU)Zi(2004)110186,
HuFangDi(PU)Zi(2004), and the relevant mortgage registration
formalities of which have been completed.
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“ Real Property ”
means the Site and the Mortgagor’s Buildings built on the
Site;
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3
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“ Real Property
Certificate ” means the “Shanghai Real Property
Certificate” numbered as HuFangDi(PU)Zi(2004)#110185,
HuFangDi(PU)Zi(2004)#110184, HuFangDi(PU)Zi(2004)110183,
HuFangDi(PU)Zi(2004)110166, HuFangDi(PU)Zi(2004)110182,
HuFangDi(PU)Zi(2004)110172, HuFangDi(PU)Zi(2004)110181,
HuFangDi(PU)Zi(2004)110180, HuFangDi(PU)Zi(2004)110159,
HuFangDi(PU)Zi(2004)110186, HuFangDi(PU)Zi(2004) issued by Shanghai
Housing and Real Estate Administration Bureau or other government
authorities that may from time to time in charge of the issuance of
such certificates, evidencing the Mortgagor’s ownership right
over the Buildings and its right to use the related lands. See
Schedule 2 hereof for more details;
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“ Buildings ”
means any buildings and premises owned by the Mortgagor on the
Site;
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“ Land Use Right
” means the land use right in relation to the Site as
detailed in the Real Property Certificate;
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“ Property Documents
” means all deeds, certificates, agreements and other
documents constituting or evidencing the ownership right or other
related rights or interests of the Mortgagor to all or any part of
the Real Property, including but not limited to all the
construction contract, the certificate of examination and approval
for completion and the Real Property Certificates; and
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1.2
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Except as otherwise defined herein
or to the extent that the context otherwise requires, capitalized
terms used in this Agreement shall have the same meaning as defined
in the Facility Agreement.
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1.3
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Headings of Clauses and Schedules
are for reference only and shall be ignored in construing Clauses
and Schedules.
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The
principal debt (hereinafter referred to as the “Principal
Debt”) secured by this Agreement is the debt owed by the
Mortgagor to the Creditor due to the advance of the Loans by the
Creditor to the Mortgagor under the Facility Agreement, including
all principal of such Loans and interest accrued thereon and any
other amount which shall be paid by the Mortgagor to the Creditor
for the advance of the Loans under the Facility
Agreement.
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3.1
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The
Mortgagor agrees to mortgage to the Creditor the Real Property as a
security for the Principal Debt.
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3.2
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The
Mortgagor agrees that the indebtedness secured by the mortgage
hereunder shall include the Principal Debt and all fees, expenses
and
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losses incurred
to the Creditor for the formation and realization of their rights
hereunder.
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3.3
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The
Mortgagor shall within 30 days after the execution of this
Agreement submit this Agreement and other documents necessary to
the Housing and Real Estate Administration Bureau of Shanghai
PuDong District for registration of the mortgage of the Real
Property. The original Shanghai Real Property Registration
Certificate shall be held by the Creditor. The Creditor agrees to
assist, in accordance with relevant laws and regulations, the
Mortgagor in going through such mortgage registration
formalities.
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3.4
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Unless otherwise agreed between the
Mortgagor and the Creditor, all proceeds received by the Mortgagor
as indemnity, claims or compensation in relation to the Mortgaged
Assets shall be deposited into an account designated by the
Creditor as Mortgaged Assets. Such proceeds may not be used by the
Mortgagor or any other third party for any purpose or by any means
with the exception that such proceeds may be used in accordance
with Clause 8.1(1) and the Creditor may use any insurance proceeds
in accordance with Clause 7. This Clause does not prohibit the
Creditor from disposing the indemnity obtained under any insurance
in accordance with other provisions of the Facility
Agreement.
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3.5
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Unless otherwise provided herein and
permitted by law, the Mortgaged Assets shall remain under the
custody of the Mortgagor and the Mortgagor may use the Mortgaged
Assets. Any damage to or loss of the Mortgaged Assets within the
term of this Agreement shall be borne by the Mortgagor.
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3.6
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Unless otherwise provided herein or
otherwise agreed by the Creditor after the execution of this
Agreement, the mortgage hereunder may not be released unless the
Principal Debt has been fully paid and all fees and expenses
incurred to the Creditor for the formation and realization of the
mortgage hereunder have been satisfied.
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4.1
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The
Creditor shall have the following rights in relation to the
Mortgaged Assets under this Agreement:
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(1)
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The
Creditor shall have the first priority mortgage over the Mortgaged
Assets and may dispose the Mortgaged Assets in accordance with laws
and this Agreement;
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(2)
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The
Creditor shall have the priority in receiving payment out of the
funds deposited into the account designated by the Creditor in
accordance with Clause 3.4 for the satisfaction of their rights
against the Mortgagor;
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(3)
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The
Mortgagor hereby irrevocably authorizes the Creditor to exercise
its rights or perform its obligations under any land use right
grant contract, land use right transfer contract, the Real Property
Certificate or any of the Construction contract on behalf of the
Mortgagor or, where permitted by law, in the name of the Creditor,
if the Mortgagor neglects to exercise such rights or perform such
obligations to the extent that, according to the Creditor’s
reasonable and objective judgement, the Mortgagor’s ability
to perform its obligations under the Finance Documents will be
affected;
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(4)
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The
Creditor may, on condition that Mortgager’s business should
not be affected, by prior notice to the Mortgagor, inspect the
conditions of the Mortgaged Assets; and
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(5)
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The
Creditor may hold the original Shanghai Real Property Registration
Certificate issued by the relevant real property registration
bureau in relation to the mortgage hereunder.
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4.2
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The
Creditor shall not in any case be held liable for any of the
obligations (including but not limited to those under the Property
Documents) of the Mortgagor in relation to the Mortgaged
Assets.
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4.3
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The
mortgage hereunder is in addition to and shall not in any way be
prejudiced by any other security which the Creditor obtained or
will obtain. The Creditor may execute the mortgage hereunder before
claiming any other security.
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5.
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Representations and
Warranty
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The
Mortgagor represents and warrants to the Creditor on the date
hereof (save that all representations and warrants in relation to
the Mortgaged Assets listed in Schedule 1 hereof shall be
deemed made on the date of obtaining the relevant Real Property
Certificate) and acknowledges that the Creditor executes this
Agreement on reliance on such representations and
warranty:
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(1)
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it
is a wholly foreign owned enterprise duly established under
applicable laws and regulations of the PRC;
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(2)
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all
corporate authorizations necessary for its execution of this
Agreement
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and the
performance of its obligations hereunder have been obtained and the
person who signs this Agreement on behalf of the Mortgagor has the
authorization to sign this Agreement. The execution of this
Agreement and the performance of its obligations hereunder do not
violate any laws or regulations;
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(3)
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it
has full and unrestricted legal rights in relation to the Mortgaged
Assets except for those restriction created by this Agreement. The
mortgage hereunder constitutes the first legal mortgage over the
Mortgaged Assets after all statutory formalities have been
finished;
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(4)
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the
Property Documents signed or obtained by the Mortgagor are legal
and valid and the Mortgagor is not in default under any Property
Document and has not obtained any Property Document in illegal
ways;
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(5)
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it
has not created any preferential interest on the Real Property and
any of its rights or interests under all or any of the Property
Documents for any third party other than those it has disclosed to
the Creditor in writing before the execution of this
Agreement;
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(6)
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it
has fully and promptly satisfied all legal requirements and carried
out all necessary registration, approval, filing and consent
procedures required by laws in relation to the Mortgaged Assets, so
as to enable itself to execute this agreement and perform its
obligations hereunder and enable the Creditor to exercise their
rights hereunder, except for the registration of the mortgage
hereunder with the Housing and Real Estate Administration Bureau of
Shanghai PuDong District;
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(7)
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all
acts, conditions and things required to be done, fulfilled and
performed have been done, fulfilled and performed in order to
enable it lawfully to enter into this Agreement, to ensure that the
obligations expressed to be assumed by it in this Agreement are
legal, valid and binding, to make the rights of the Creditor
enforceable in the PRC save for the registration of the mortgage
hereunder with the Housing and Real Estate Administration Bureau of
Shanghai PuDong District;
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(8)
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the
performance and enforcement of this Agreement do not conflict with
any laws applicable to the Mortgagor, or any document executed by
the Mortgagor;
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(9)
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no
civil or criminal action or administrative proceedings is started
or , to the best of its knowledge, threatened in relation to the
Mortgaged Assets on the date hereof and no withdrawal or
confiscation of the Real Property by the state has occurred or, to
the best of its knowledge, threatened;
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(10)
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all
taxes and fees due and payable in relation to acquiring of the
legal ownership of the Mortgaged Assets have been paid and all
legal procedures and formalities need to be completed in relation
to such Real Property have been completed;
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(11)
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all
taxes due and payable have been paid.
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(12)
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except those that have been exposed
to the Creditor according to this Agreement and approved by the
Creditor, neither a contractor nor any third party has any
statutory or contractual preferential interest or leasing right in
relation to the Mortgaged Assets.
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(13)
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it
has paid all land use right fees payable under the relevant land
use right grant contract and land use right transfer contract;
and
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