Exhibit 4.5
FORM OF EXCHANGE NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
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No. $150,000,000
CUSIP NO.:
ISIN NO.:
12 3/4% Series B Senior Subordinated Notes Due 2009
ChipPAC International Company Limited, a British Virgin Islands
corporation, promises to pay to CEDE & CO., or registered assigns, the principal
sum of ONE HUNDRED AND FIFTY MILLION UNITED STATES DOLLARS on August 1, 2009.
Interest Payment Dates: August 1 and February 1.
Record Dates: July 15 and January 15.
Additional provisions of this Security are set forth on the other side
of this Security.
Dated:
CHIPPAC INTERNATIONAL COMPANY LIMITED,
by
_________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
FIRSTAR BANK OF MINNESOTA, N.A.
as Trustee, certifies that
this is one of the Securities
referred to in the Indenture.
by
_____________________________
Authorized Signatory
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12 3/4% Series B Senior Subordinated Note Due 2009
1. Interest
--------
ChipPAC International Company Limited, a British Virgin Islands
corporation (such corporation, and its successors and assigns under the
Indenture hereinafter referred to, being herein called the "Issuer"), promises
to pay interest on the principal amount of this Security at the rate per annum
shown above. The Issuer will pay interest semiannually on August 1 and February
1 of each year. Interest on the Securities will accrue from the most recent date
to which interest has been paid or, if no interest has been paid, from July 29,
1999. Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Issuer shall pay interest on overdue principal at the rate borne by
the Securities plus 1% per annum, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
2. Method of Payment
-----------------
The Issuer will pay interest on the Securities to the Persons who are
registered holders of Securities at the close of business on the July 15 or
January 15 next preceding the interest payment date even if Securities are
canceled after the record date and on or before the interest payment date.
Holders must surrender Securities to a Paying Agent to collect principal
payments. The Issuer will pay principal and interest in money of the United
States that at the time of payment is legal tender for payment of public and
private debts. Payments in respect of the Securities represented by a Global
Security (including principal, premium and interest) will be made by wire
transfer of immediately available funds to the accounts specified by The
Depository Trust Company. The Issuer will make all payments in respect of a
certificated Security (including principal, premium and interest) by mailing a
check to the registered address of each Holder thereof; provided, however, that
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payments on a certificated Security will be made by wire transfer to a U.S.
dollar account maintained by the payee with a bank in the United States if such
Holder elects payment by wire transfer by giving written notice to the Trustee
or the Paying Agent to such effect designating such account no later than 30
days immediately preceding the
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relevant due date for payment (or such other date as the Trustee may accept in
its discretion).
3. Paying Agent and Registrar
--------------------------
Initially, Firstar Bank of Minnesota, N.A., a Delaware banking
corporation (the "Trustee"), will act as Paying Agent and Registrar. The Issuer
may appoint and change any Paying Agent, Registrar or co-registrar without
notice. The Issuer or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
---------
The Issuer issued the Securities under an Indenture dated as of July
29, 1999 (as supplemented by a First Supplemental Indenture, dated as of August
5, 1999, the "Indenture"), among the Issuer, the Company and the Trustee. The
terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
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(S)(S) 77aaa-77bbbb) as in effect on the date of the Indenture (the "Act").
Terms defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the Act for a statement of
those terms. The Issuer's obligations under the Securities are guaranteed by the
Company and each of the Subsidiary Guarantors.
The Securities are general unsecured obligations of the Issuer. The
Issuer shall be entitled, subject to its compliance with Section 4.03 of the
Indenture, to issue Additional Securities pursuant to Section 2.13 of the
Indenture. The Securities issued under the indenture will be treated as a single
class for all purposes under the Indenture. The Indenture limits, among other
things (i) the incurrence of additional debt by the Company and its Restricted
Subsidiaries, (ii) the payment of dividends on capital stock of the Company and
the purchase, redemption or retirement of capital stock or subordinated
indebtedness, (iii) certain transactions with affiliates, (iv) sales of assets,
including capital stock of subsidiaries, and (v) certain consolidations, mergers
and transfers of assets. The Indenture also prohibits certain restrictions on
distributions from subsidiaries. All of these limitations and prohibitions,
however, are subject to a number of important qualifications contained in the
Indenture.
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5. Optional Redemption
-------------------
Except as set forth in the next paragraph of this Section 5, the
Securities may not be redeemed prior to August 1, 2004. On and after that date,
the Issuer may redeem the Securities in whole at any time or in part from time
to time at the following redemption prices (expressed in percentages of
principal amount), plus accrued interest to the redemption date (subject to the
right of Holders of record on the relevant record date to receive interest due
on the related interest payment date):
if redeemed during the 12-month period beginning August 1,
Period Percentage
------ ----------
2004.......................................... 106.375%
2005.......................................... 104.250
2006.......................................... 102.125
2007 and thereafter........................... 100.000%
In addition, at any time prior to August 1, 2002, the Issuer may at
its option on one or more occasions redeem up to 35% of the aggregate principal
amount of Securities with the proceeds of one or more Equity Offerings, at any
time or from time to time, at a redemption price (expressed as a percentage of
principal amount) of 112 3/4% of the principal amount thereof, plus accrued
interest to redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the related interest payment
date); provided, however, that:
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(1) at least 65% of such aggregate principal amount of Securities
(which includes Additional Securities, if any) remains outstanding
immediately after the occurrence of each such redemption (other than the
Securities held, directly or indirectly, by the Issuer or its Affiliates);
and
(2) each such redemption occurs within 60 days after the date of the
related Equity Offering.
The Securities may be redeemed, at the option of the Issuer, at any
time as a whole but not in part, on not less than 30 nor more than 60 days'
notice, at 100% of the principal amount thereof, plus accrued and unpaid
interest (if any) to the date of redemption (subject to the right of holders of
record on the relevant record date to receive interest due on the relevant
interest payment date), in the event the Issuer has become or would become
obligated to
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pay, on the next date on which any amount would be payable with respect to the
Securities, any Additional Amounts as a result of a change in or an amendment to
the laws (including any regulations promulgated thereunder) of the British
Virgin Islands (or any political subdivision or taxing authority thereof or
therein), or any change in or amendment to any official position regarding the
application or interpretation of such laws or regulations, which change or
amendment is announced or becomes effective on or after the Issue Date;
provided, however, that (i) no such notice of redemption may be given earlier
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than 60 days prior to the earliest date on which Additional Amounts are due and
payable in respect of the Notes and (ii) at the time any such redemption notice
is given, such obligation to pay Additional Amounts remains in effect. Prior to
giving any notice of redemption pursuant to this provision, the Issuer will
deliver to the applicable Trustee (i) an Officers' Certificate stating that it
is entitled to effect such redemption and setting forth a statement of facts
showing that the conditions precedent to its right to so redeem have occurred
and (ii) an Opinion of Counsel in the British Virgin Islands to the effect that
the Issuer has or will become obligated to pay Additional Amounts as a result of
such amendment or change.
In the case of any partial redemption, selection of the Securities for
redemption will be made by the Trustee, on a pro rata basis, by lot or by such
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other method as the Trustee in its sole discretion shall deem to be fair and
appropriate, although no Security of U.S. $1,000 in original principal amount or
less shall be redeemed in part. If any Security is to be redeemed in part only,
the notice of redemption relating to such Security shall state the portion of
the principal amount thereof to be redeemed. A new Security in principal amount
equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security.
6. Notice of Redemption
--------------------
Notice of optional redemption will be mailed at least 30 days but not
more than 60 days before the redemption date to each Holder of Securities to be
redeemed at his registered address. Securities in denominations larger than
$1,000 may be redeemed in part but only in whole multiples of $1,000. If money
sufficient to pay the redemption price of and accrued interest on all Securities
(or portions thereof) to be redeemed on the redemption date is deposited with
the Paying Agent on or before the redemption date and certain other conditions
are satisfied,
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on and after such date interest ceases to accrue on such Securities (or such
portions thereof) called for redemption.
7. Put Provisions
--------------
Upon a Change of Control, any Holder of Securities will have the
right, subject to certain conditions, to cause the Issuer to repurchase all or
any part of the Securities of such Holder at a repurchase price equal to 101% of
the principal amount of the Securities to be repurchased plus accrued interest
to the date of repurchase (subject to the right of holders of record on the
relevant record date to receive interest due on the related interest payment
date) as provided in, and subject to the terms of, the Indenture.
8. Subordination
-------------
The Securities are subordinated to Senior Indebtedness, as defined in
the Indenture. To the extent provided in the Indenture, Senior Indebtedness must
be paid before the Securities may be paid. The Issuer agrees, and each
Securityholder by accepting a Security agrees, to the subordination provisions
contained in the Indenture and authorizes the Trustee to give it effect and
appoints the Trustee as attorney-in-fact for such purpose.
9. Denominations; Transfer; Exchange
---------------------------------
The Securities are in registered form without coupons in denominations
of $1,000 and whole multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements or transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture. The
Registrar need not register the transfer of or exchange any Securities selected
for redemption (except, in the case of a Security to be redeemed in part, the
portion of the Security not to be redeemed) or any Securities for a period of 15
days before a selection of Securities to be redeemed or 15 days before an
interest payment date.
10. Persons Deemed Owners
---------------------
The registered Holder of this Security may be treated as the owner of
it for all purposes.
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11. Unclaimed Money
---------------
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the
Issuer at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Issuer and not to the Trustee for payment.
12. Discharge and Defeasance
------------------------
Subject to certain conditions, the Issuer at any time may terminate
some or all of its obligations under the Securities and the Indenture if the
Issuer deposits with the Trustee money or U.S. Government Obligations for the
payment of principal and interest on the Securities to redemption or maturity,
as the case may be.
13. Amendment, Waiver
-----------------
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount outstanding of the Securities
and (ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in principal amount outstanding of
the Securities. Subject to certain exceptions set forth in the Indenture,
without the consent of any Securityholder, the Issuer and the Trustee may amend
the Indenture or the Securities to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article 5 of the Indenture, or to provide for
uncertificated Securities in addition to or in place of certificated Securities,
or to add guarantees with respect to the Securities or to secure the Securities,
or to add additional covenants or surrender rights and powers conferred on the
Issuer, or to comply with any request of the SEC in connection with qualifying
the Indenture under the Act, or to make any change that does not adversely
affect the rights of any Securityholder.
14. Defaults and Remedies
---------------------
Under the Indenture, Events of Default include (i) default for 30 days
in payment of interest on the Securities; (ii) default in payment of principal
on the Securities at maturity, upon redemption pursuant to para graph 5 of the
Securities, upon acceleration or otherwise,
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or failure by the Issuer to redeem or purchase Securities when required; (iii)
failure by the Issuer and the Company to comply with other agreements in the
Indenture or the Securities, in certain cases subject to notice and lapse of
time; (iv) certain accelerations (including failure to pay within any grace
period after final maturity) of other Indebtedness of the Issuer if the amount
accelerated (or so unpaid) exceeds $10.0 million; (v) certain events of
bankruptcy or insolvency with respect to the Company and its Significant
Subsidiaries; (vi) certain judgments or decrees for the payment of money in
excess of $10.0 million; and (vii) failure of the Company Guaranty or any
Subsidiary Guaranty to be in full force and effect, or the failure of the
Company or a Significant Subsidiary that is a Subsidiary Guarantor to honor its
obligations under the Company Guaranty or its Subsidiary Guaranty, as the case
may be. If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Securities may declare all
the Securities to be due and payable immediately. Certain events of bankruptcy
or insolvency are Events of Default which will result in the Securities being
due and payable immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Securities
may direct the Trustee in its exercise of any trust or power. The Trustee may
with hold from Securityholders notice of any continuing Default (except a
Default in payment of principal or interest) if it determines that withholding
notice is in the interest of the Holders.
15. Trustee Dealings with the Issuer
--------------------------------
Subject to certain limitations imposed by the Act, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Issuer or its Affiliates and may otherwise deal with the Issuer or
its Affiliates with the same rights it would have if it were not Trustee.
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16. No Recourse Against Others
--------------------------
A director, officer, employee or stockholder, as such, of the Issuer
or the Trustee shall not have any liability for any obligations of the Issuer
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. By accepting a Security,
each Securityholder waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Securities.
17. Authentication
--------------
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
18. Abbreviations
-------------
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. Holders' Compliance with Registration Rights Agreement.
------------------------------------------------------
Each Holder of a Security, by acceptance hereof, acknowledges and
agrees to the provisions of the Registration Rights Agreement, including,
without limitation, the obligations of the Holders with respect to a
registration and the indemnification of the Issuer to the extent provided
therein.
20. Governing Law.
--------------
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
The Issuer will furnish to any Securityholder upon written request and
without charge to the Security holder a copy of the Indenture which has in it
the text of this Security in larger type. Requests may be made to:
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CHIPPAC INTERNATIONAL COMPANY
LIMITED
c/o CHIPPAC, INC.
3151 CORONADO DRIVE
SANTA CLARA, CA 95054
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________________________________________________________________________________
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this
Security on the books of the Issuer. The agent may substitute another to act
for him.
________________________________________________________________________________
Date: ________________ Your Signature:__________________________________________
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
_________________________
Signature
Signature Guarantee:
____________________________ _________________________
Signature must be guaranteed Signature
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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have
been made:
Date of Amount of decrease Amount of increase Principal amount Signature of
Exchange in Principal in Principal of this Global authorized officer
Amount of this Amount of this Security following of Trustee or
Global Security Global Security such decrease or Securities
increase) Custodian
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Issuer
pursuant to Section 4.06 or 4.09 of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Security purchased by
the Issuer pursuant to Section 4.06 or 4.09 of the Indenture, state the amount
in principal amount: $
Date: _______________ Your Signature: _________________________________
(Sign exactly as your name
appears on the other side of this
Security.)
Signature Guarantee: __________________________________________________________
(Signature must be guaranteed)