EXHIBIT 4.6
CONFORMED COPY
DATED 10TH JANUARY, 2002
ST ASSEMBLY TEST SERVICES LTD
AS ISSUER
- AND -
CITICORP INVESTMENT BANK (SINGAPORE) LIMITED
AS ARRANGER AND DEALER
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PROGRAMME AGREEMENT
RELATING TO
ST ASSEMBLY TEST SERVICES LTD
S$500,000,000
MULTICURRENCY MEDIUM TERM NOTE PROGRAMME
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[ALLEN & GLEDHILL LOGO]
36, ROBINSON ROAD, #18-01,
CITY HOUSE,
SINGAPORE 068877.
C O N T E N T S
CLAUSE TITLE PAGE
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1. INTERPRETATION 1
2. ISSUE AND DELIVERY OF NOTES 5
3. CONDITIONS OF ISSUE 6
4. WARRANTIES AND AGREEMENTS 12
5. INDEMNITIES 18
6. LISTING 19
7. AUTHORITY TO DISTRIBUTE DOCUMENTS 19
8. AGREEMENTS OF DEALERS 20
9. AUTHORITY OF ISSUER 21
10. COMMUNICATIONS 21
11. STATUS OF THE DEALERS AND THE ARRANGER 22
12. TIME 22
13. FEES, EXPENSES AND STAMP DUTIES 22
14. ACCESSIONS AND TERMINATION 23
15. BENEFIT OF AGREEMENT 24
16. INCREASE IN PROGRAMME LIMIT 24
17. COUNTERPARTS 25
18. GOVERNING LAW 25
APPENDIX 1 - INITIAL DOCUMENTATION LIST 26
APPENDIX 2 - FORM OF PRICING SUPPLEMENT 27
APPENDIX 3 - PROCEDURES MEMORANDUM 33
- ii -
CLAUSE TITLE PAGE
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APPENDIX 4 - FORM OF SUBSCRIPTION AGREEMENT 50
APPENDIX 5 - VRN SCHEDULE 59
APPENDIX 6 - FORM OF CERTIFICATE OF
NO MATERIAL ADVERSE CHANGE 60
APPENDIX 7 - SELLING RESTRICTIONS 62
APPENDIX 8 - FORM OF DEALER ACCESSION LETTER 66
APPENDIX 9 - FORM OF LETTER FROM ISSUER
ON AN INCREASE IN THE
PROGRAMME LIMIT 69
T H I S A G R E E M E N T is made on 10th January, 2002
B E T W E E N:-
(1) ST ASSEMBLY TEST SERVICES LTD (the "Issuer");
(2) CITICORP INVESTMENT BANK (SINGAPORE) LIMITED (the "Arranger"); and
(3) CITICORP INVESTMENT BANK (SINGAPORE) LIMITED (the "Dealer").
W H E R E A S the Issuer proposes to issue from time to time pursuant
to the Trust Deed (defined below) multicurrency medium term notes in an
aggregate principal amount outstanding at any one time not exceeding the
Programme Limit (defined below) and the Dealers (defined below) may from time to
time subscribe for such notes.
I T I S A G R E E D as follows:-
1. INTERPRETATION
(A) Definitions: For the purposes of this Agreement and the Appendices,
and except where the context requires otherwise:-
"Agency Agreement" means the agency agreement dated 10th January, 2002
made between (1) the Issuer, as issuer, (2) Citicorp Investment Bank
(Singapore) Limited, as issuing and paying agent, (3) Citicorp
Investment Bank (Singapore) Limited, as agent bank, and (4) the
Trustee, as trustee, as amended, varied or supplemented from time to
time;
"Agent Bank" means Citicorp Investment Bank (Singapore) Limited in its
capacity as agent bank under the Agency Agreement, or its successors
in such capacity;
"Agreement Date" means, in relation to any Note, the date on which
agreement is reached for its issue as contemplated by Clause 2 which,
in the case of a Syndicated Issue, will be the execution date of the
relevant Subscription Agreement;
"business day" means a day (other than Saturday or Sunday) on which
commercial banks are open for business in Singapore;
"Certification Date" means each Agreement Date, each Issue Date and
each date on which the Information Memorandum or any of the Contracts
is amended, varied, supplemented or replaced;
"Conditions" means, in relation to the Notes of any Series, the terms
and conditions applicable thereto, which shall be substantially in the
form set out in Part II of Schedule 1 to the Trust Deed, as modified,
with respect to any Notes represented by a Global Note, by the
provisions of such Global Note, shall incorporate any additional
provisions forming part of such terms and conditions set out in the
Pricing Supplement(s) relating to the Notes of
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such Series and shall be endorsed on the Definitive Notes subject to
amendment and completion as referred to in the first paragraph
appearing after the heading "Terms and Conditions of the Notes" as set
out in Part II of Schedule 1 to the Trust Deed, and any reference to a
particularly numbered Condition shall be construed accordingly;
"Contracts" means this Agreement, the Agency Agreement, the Trust
Deed, the Depository Agreement, the Deed of Covenant and, in relation
to any Syndicated Issue, the relevant Subscription Agreement;
"Coupon" means an interest coupon appertaining to an interest bearing
Definitive Note;
"Dealers" means the Dealer of this Agreement and each other person, if
any, who has been, or, for the purposes of Clause 2, who is
subsequently, appointed as a Dealer pursuant to Clause 14 (but
excludes any person who has ceased to be a Dealer pursuant to Clause
14 or whose appointment has lapsed pursuant to its terms);
"Deed of Covenant" means the deed of covenant dated 10th January, 2002
executed by the Issuer by way of deed poll in relation to the Notes
(which are represented by a Global Note and which are deposited with
the Depository), as amended, varied or supplemented from time to time;
"Definitive Note" means a definitive note of the Issuer, in bearer
form having, where appropriate, Coupons attached on issue;
"Depositors" means, at any time, persons (including Depository Agents)
having any Notes standing to the credit of their Securities Accounts
at that time;
"Depository" means The Central Depository (Pte) Limited;
"Depository Agent" means a corporation authorised by the Depository to
maintain Sub-Accounts;
"Depository Agreement" means the depository agreement dated 10th
January, 2002 made between (1) the Issuer, as issuer, and (2) the
Depository, as depository, as amended, varied or supplemented from
time to time;
"Event of Default" has the meaning given to it in the Conditions;
"Global Note" means a global Note representing Notes of one or more
Tranches of the same Series, being a Temporary Global Note and/or, as
the context may require, a Permanent Global Note, in each case without
Coupons;
"Group" means the Issuer and its subsidiaries;
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"Information Memorandum" means the information memorandum prepared by
the Issuer in consultation with the Arranger, relating to the
Programme, as revised, supplemented, amended, updated or replaced from
time to time, (which term shall include those documents incorporated
therein by reference from time to time as provided therein);
"Initial Documentation List" means the list of documents and
confirmations set out in Appendix 1;
"Issue Date" means, in relation to Notes comprising a Tranche, the
date (being a business day) of the issue and subscription of such
Notes pursuant to Clause 2;
"Issue Price" means, in relation to Notes comprising a Tranche, the
price at which such Notes will be purchased by a Dealer;
"Issuing and Paying Agent" means Citicorp Investment Bank (Singapore)
Limited in its capacity as issuing and paying agent under the Agency
Agreement, or its successor in such capacity;
"Lead Manager" means, in relation to any Syndicated Issue, the
Relevant Dealer specified as such in the relevant Subscription
Agreement;
"Maturity Date" means, in relation to any Note, the date on which it
is expressed to be payable;
"Note" means a note to be issued pursuant to this Agreement, such Note
being a Global Note or a Definitive Note;
"Permanent Global Note" means a Global Note representing Notes of one
or more Tranches of the same Series, either on issue or upon exchange
of interests in a Temporary Global Note;
"Pricing Supplement" means, in relation to any Tranche, a pricing
supplement specifying the relevant issue details in relation to such
Tranche, substantially in the form of Appendix 2;
"Principal Subsidiaries" has the meaning ascribed to it in Condition
9;
"Procedures Memorandum" means the administrative and operative
procedures and guidelines relating to the settlement of issues of
Notes as shall be agreed upon from time to time by the Issuer, the
Arranger and the Trustee and which, at the date of this Agreement, are
set out in Appendix 3 (as amended, varied or supplemented from time to
time);
"Programme" means the Multicurrency Medium Term Note Programme
established by this Agreement;
"Programme Dealers" means all Dealers other than those appointed as
such solely in respect of one or more specified Tranches;
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"Programme Limit" means, subject to Clause 3(C)(8) and Clause 16,
S$500,000,000 or its equivalent in other currencies;
"Relevant Dealer(s)" means, in relation to any Tranche, the Dealer or
Dealers with whom the Issuer has concluded or is negotiating an
agreement for the issue of such Tranche;
"Securities Accounts" means the securities accounts of the Depositors
maintained with the Depository (but does not include Sub-Accounts);
"Securities Act" means the U.S. Securities Act of 1933, as amended;
"Series" means (1) (in relation to Notes other than Variable Rate
Notes) a Tranche, together with any further Tranche or Tranches, which
are (a) expressed to be consolidated and forming a single series and
(b) identical in all respects (including as to listing) except for
their respective Issue Dates, Issue Prices and/or dates of the first
payment of interest and (2) (in relation to Variable Rate Notes) Notes
which are identical in all respects (including as to listing) except
for their respective Issue Prices and Rates of Interest;
"SGX-ST" means the Singapore Exchange Securities Trading Limited;
"Singapore Dollar(s)" and "S$" mean the lawful currency of Singapore;
"Stock Exchange" means the SGX-ST or any other or further stock
exchange(s) on which any Notes may from time to time be listed, and
references in this Agreement to the "relevant Stock Exchange" shall,
in relation to any Notes, be references to the Stock Exchange on which
such Notes are from time to time, or are intended to be, listed;
"Sub-Accounts" means the securities sub-accounts maintained by each
Depository Agent for its own account and for the account of its
clients;
"Subscription Agreement" means an agreement between two or more
Relevant Dealers and the Issuer made pursuant to Clause 2(B),
substantially in the form of Appendix 4;
"Syndicated Issue" means an issue of Notes pursuant to an agreement
reached under Clause 2(B);
"Temporary Global Note" means a Global Note representing Notes of one
or more Tranches of the same Series on issue;
"Tenor" means, in relation to any Note, in accordance with Clause
3(C), the period from and including its Issue Date to but excluding
its Maturity Date;
"Tranche" means Notes which are identical in all respects (including
as to listing);
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"Trust Deed" means the trust deed dated 10th January, 2002 made
between (1) the Issuer, as issuer, and (2) the Trustee, as trustee, as
amended, varied or supplemented from time to time;
"Trustee" means British and Malayan Trustees Limited in its capacity
as trustee under the Trust Deed, or its successor in such capacity;
and
"VRN Schedule" means the document set out in Appendix 5 setting out
the procedures for the determination of the Agreed Yield or, as the
case may be, the Rate of Interest in relation to each Series of
Variable Rate Notes as amended, varied or supplemented from time to
time.
(B) Miscellaneous: (1) Terms defined in the Trust Deed and/or in the Notes
(including the Conditions) shall have the same meaning when used herein.
(2) Headings of Clauses and sub-Clauses in this Agreement are for
convenience only and shall not affect the interpretation hereof.
(3) References to "Appendices" and "Clauses" are to be construed as
references to the appendices to, and the clauses of, this Agreement.
(4) All references in this Agreement to the Depository shall, wherever the
context so permits, be deemed to include references to any additional or
alternative clearing system approved by the Issuer (where relevant), the
Relevant Dealer(s) and the Trustee.
(5) A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Act 2001 to enforce any term of
this Agreement.
2. ISSUE AND DELIVERY OF NOTES
(A) Individual Offers: Subject to the terms and conditions of this
Agreement, the Issuer may from time to time (by telephone or other means of
communication) invite any Dealer to bid for Notes, and any Dealer may at any
time (by telephone or other means of communication) make unsolicited bids to the
Issuer for Notes. If a Dealer's bid is subsequently accepted by the Issuer then
the Issuer will be obliged to issue, and such Dealer will be obliged to
subscribe for, the relevant Notes on the Issue Date and otherwise on the terms
so agreed. Any oral acceptance of any bid by the Issuer will be confirmed in
writing from the Relevant Dealer to the Issuer in accordance with the Procedures
Memorandum provided that any failure to give such a confirmation, or any delay
in giving such a confirmation, shall not affect the validity of the Issuer's
oral acceptance or the obligations of the Relevant Dealer and the Issuer arising
therefrom.
(B) Syndicated Issues: Two or more Dealers may from time to time agree
with the Issuer that such persons will severally or jointly and severally agree
to subscribe or procure subscribers for Notes. The terms upon which such Notes
are to be subscribed shall be substantially similar to the terms of this
Agreement and shall be set out in a Subscription Agreement executed by the
Issuer and the Relevant Dealers.
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(C) Procedures Memorandum: The parties agree that in relation to any issue
of Notes the Issuer and the Relevant Dealer(s) (or, in the case of a Syndicated
Issue, the Lead Manager(s)) will use best endeavours to follow the
administrative and operative procedures and guidelines set out in the Procedures
Memorandum, unless the Issuer, the Relevant Dealer(s) (or, in the case of a
Syndicated Issue, the Lead Manager(s)), the Trustee and, if affected by any
proposed change, the Issuing and Paying Agent agree otherwise. The Procedures
Memorandum may be changed in respect of any Relevant Dealer (or, in the case of
a Syndicated Issue, the Lead Manager(s)) by agreement in writing between the
Issuer, the Trustee and such Dealer (or, in the case of a Syndicated Issue, the
Lead Manager(s)) following consultation with the Issuing and Paying Agent.
(D) Commissions and Fees: At the time of delivery of, and payment for, any
Notes sold by the Issuer pursuant to Clause 2(A), in consideration of the
obligations undertaken herein by the Relevant Dealer, the Issuer agrees to pay
the Relevant Dealer the commission or fee (if any) agreed (and any goods and
services or other tax thereon) between the Issuer and the Relevant Dealer. Such
commission or fee may be deducted by the Relevant Dealer from the price payable
to the Issuer in respect of the relevant Notes, or as otherwise agreed.
(E) Agent Bank: If Notes are issued that require one or more agent banks,
the Issuer shall request the Issuing and Paying Agent to act as such.
(F) Modifications: If:-
(1) the Issuer and any Dealer shall at any time agree to issue and
subscribe for Notes in a form or subject to provisions not
specifically contemplated in Clause 2(C) or the Information
Memorandum; or
(2) any relevant law, regulation or directive is introduced or
changed, or there is any change in the interpretation or
application of any relevant law, regulation or directive, after
the date of this Agreement,
the Issuer and the Dealers (after consultation with the Issuing and Paying
Agent) shall establish what, if any, modifications will be required to this
Agreement, the form of the relevant Notes, the Conditions in relation thereto
and any other agreement or document referred to herein as may be necessary or
desirable to take into account such agreement, introduction or change.
(G) Compliance with Laws: No Notes shall in any event be issued unless and
until this Agreement and the documents referred to herein comply with all
relevant laws, regulations and directives in respect of such issue of Notes. Any
issue of Notes denominated in a currency in respect of which particular laws,
guidelines, regulations, restrictions or reporting requirements apply will only
be issued in circumstances which comply with such laws, guidelines, regulations,
restrictions or reporting requirements from time to time.
3. CONDITIONS OF ISSUE
(A) First Issue: The Issuer shall distribute to each Dealer all of the
documents and confirmations described in the Initial Documentation List promptly
after such
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documents and confirmations have been received by it from the Issuer. The Issuer
may not make its first request to any Dealer to bid for Notes until that Dealer
shall have received, and found reasonably satisfactory, all of the documents and
confirmations described in the Initial Documentation List. Any Dealer (with
respect to itself only) may waive the production of any of the documents and
confirmations described in the Initial Documentation List.
(B) Each Issue: The obligation of a Relevant Dealer to subscribe for any
Notes which it has agreed to subscribe for pursuant to Clause 2 is conditional
upon the following:-
(1) the Board of Directors of the Issuer having duly resolved to
issue the relevant Notes;
(2) the Issuer's representations and warranties set out in this
Agreement being true, accurate, correct and complied with in all
material respects on the Agreement Date and the proposed Issue
Date (in each case as if such representations and warranties were
repeated on each such date with reference to the then existing
circumstances taking into account the issue of such Notes) and
the performance, on or prior to each such date, by the Issuer of
its covenants, agreements or obligations under this Agreement to
be performed on or prior to each such date (other than any
obligations that may have been waived by the Relevant Dealer and
which waiver continues in effect) except to the extent to which
failure to do so would not be material in the context of the
issue of the Notes;
(3) (in respect of such Notes which are to be listed) all consents
and the approval in-principle of the relevant Stock Exchange
having been obtained and on terms and conditions acceptable to
the Relevant Dealer, such consents and approval being valid and
continuing to be in force and effect until the Issue Date and all
conditions attached to such consents and approval being complied
with by the Issue Date (save for any conditions to be complied
with after the Issue Date which shall be complied with as soon as
practicable thereafter);
(4) (a) there having been, as at the proposed Issue Date, no adverse
change, or any development involving a prospective adverse
change, in the financial condition, business or results of
operations of the Issuer or the Group, taken as a whole,
which is material in the context of the issue and offering
of the Notes from that set forth in the audited consolidated
accounts of the Issuer and its subsidiaries for the year
ended 31st December, 2000 contained in the Information
Memorandum or, if available, the most recent audited
consolidated accounts or, as the case may be, unaudited half
yearly results of the Group delivered to the Dealers
pursuant to Clause 4(A)(13) except as may be disclosed in
the Information Memorandum or in any public
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announcement of the Issuer made prior to the Agreement Date
or as disclosed to the Relevant Dealer prior to the
Agreement Date; and
(b) there having been delivered to the Relevant Dealer on the
proposed Issue Date a certificate (substantially in the form
set out in Appendix 6) dated the proposed Issue Date, signed
by a duly authorised officer of the Issuer, stating that, to
the best of his knowledge and belief after making due
enquiries, (i) since the date of the most recent audited
consolidated accounts or, as the case may be, unaudited half
yearly results of the Group delivered to the Dealers
pursuant to Clause 4(A)(13), except as may be disclosed in
the Information Memorandum or in any public announcement of
the Issuer made prior to the Agreement Date or as disclosed
to the Relevant Dealer prior to the Agreement Date, there
has been no adverse change, or any development involving a
prospective adverse change, in the financial condition,
business or results of operations of the Issuer or the
Group, taken as a whole, which is material in the context of
the issue and offering of the Notes, (ii) the Issuer's
representations and warranties set out in this Agreement are
true, accurate, correct and complied with in all material
respects on the proposed Issue Date (as if such
representations and warranties were repeated on the proposed
Issue Date with reference to the then existing circumstances
taking into account the issue of such Notes) and (iii) the
Issuer has performed all of its covenants, agreements or
obligations under this Agreement to be performed on or prior
to the proposed Issue Date (other than any obligations that
may have been waived by the Relevant Dealer and which waiver
continues in effect) except to the extent to which failure
to do so would not be material in the context of the issue
of the Notes;
(5) there being no outstanding breach in any material respect of any
of the obligations of the Issuer under this Agreement, the Notes
or the other Contracts which has not been waived by the Relevant
Dealer on or prior to the proposed Issue Date;
(6) the aggregate principal amount of the Notes to be issued, when
added to the aggregate principal amount of all Notes outstanding
(as defined in the Trust Deed) on the proposed Issue Date, not
exceeding the Programme Limit;
(7) no meeting of the holders of Notes (or any of them) to consider
matters which would in the reasonable opinion of the Relevant
Dealer be considered to be material in the context of the issue
of the Notes having been duly convened but not yet held or, if
held but adjourned, the adjourned meeting having not been held
and the
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Issuer not being aware of any circumstances which would lead to
the convening of such a meeting;
(8) there not having been, between the Agreement Date and the Issue
Date for such Notes:-
(a) any introduction or prospective introduction of, or any
change or prospective change in, or in the interpretation or
application of, any legislation, statute, regulation, order,
policy, directive, request or guideline (whether or not
having the force of law) by the Monetary Authority of
Singapore, the Securities Industry Council, the SGX-ST or
any other governmental or regulatory body in Singapore; or
(b) any material adverse change or prospective material adverse
change in monetary, political (including, but not limited
to, changes by reason of military action), financial
(including, but not limited to, stock market conditions,
currency exchange conditions in any of the financial markets
and interest rates) or economic conditions in Singapore or
internationally (including changes or developments in stock,
bond, money and interest rate markets) or the occurrence of
any combination of any such changes, crises or developments,
in either case, as would in the opinion of the Relevant Dealer
(exercised in good faith):-
(i) materially and adversely prejudice or affect the success of
the placement, issue, offer, sale or distribution (whether
in the primary or secondary markets) of the Notes; or
(ii) materially and adversely affect the listing of the Notes
(where applicable); or
(iii) materially and adversely affect the business or financial
position of the Issuer or the Group;
(9) the forms of the Pricing Supplement, the Temporary Global Note,
the Permanent Global Note and the Definitive Notes in relation to
the relevant Tranche and the relevant settlement procedures
having been agreed by the Issuer, the Relevant Dealer, the
Issuing and Paying Agent and the Trustee (in respect of the
Temporary Global Note, the Permanent Global Note and the
Definitive Notes only) on or prior to the proposed Issue Date;
(10) any calculations or determinations which are required by the
relevant Conditions to have been made prior to the Issue Date
having been duly made;
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(11) the provisions of sub-Clause (C) below not being breached
thereby;
(12) there being no infringement in any respect of any law, order,
rule, regulation, directive, policy or request (whether or not
having the force of law) promulgated or issued by any
legislative, executive, judicial or regulatory body, including,
but not limited to, the SGX-ST, the Monetary Authority of
Singapore and the Registry of Companies as a result of the issue
of the Notes of that Series or the carrying out of any
transaction contemplated by, or the compliance with the terms of,
the Contracts;
(13) the Form 30B having been lodged with the Registrar of Companies
and Businesses, the Information Memorandum having been lodged
with the Registrar of Companies and Businesses for the purpose of
Section 106D of the Companies Act, Chapter 50 of Singapore (the
"Companies Act"), and all acts being done in order to invoke the
applicable exemptions under Sections 106C, 106D and/or 106E of
the Companies Act having been duly performed and all requirements
in connection therewith having been duly complied with;
(14) the Minister for Finance not having revoked, pursuant to Section
106J of the Companies Act, the exemption invoked by the Issuer
under Section 106C or 106D of the Companies Act in connection
with the issue of the Notes nor any exemption under Division 5A
of Part IV of the Companies Act relied on or to be relied on by
the Relevant Dealer in connection with the issue of the Notes and
the sale of the Notes by the Relevant Dealer; and
(15) all requirements of the Monetary Authority of Singapore, the
SGX-ST, the Registry of Companies and Businesses and any other
relevant authority in connection with the issue of the Notes and
(where applicable) listing or any of the transactions
contemplated by this Agreement or the Contracts being fully
complied with by such time as stipulated in such requirements.
(C) Terms: (1) The Issuer and any Relevant Dealer may from time to time
determine the terms and conditions of Notes to be issued by the Issuer and
subscribed for by that Dealer, by fixing the Maturity Date, the interest rate or
interest rate formula (if any) and any other relevant terms thereof. Subject to
compliance with all relevant laws, regulations and directives, Notes may be
denominated in Singapore Dollars, United States dollars, Australian dollars,
Canadian dollars, Dutch guilders, Euro, Hong Kong dollars, Italian lire or
Japanese yen or in other currencies the Issuer and the Relevant Dealer so agree.
Notes will be issued in Series and each Series may be issued in one or more
Tranches on different Issue Dates and each Tranche shall be for Notes having a
minimum aggregate principal amount of S$20,000,000 (or its equivalent in other
currencies).
(2) The Notes of each Series may be Fixed Rate Notes, Floating Rate Notes,
Variable Rate Notes or Hybrid Notes. In the case of an issue of Variable Rate
Notes, the Issuer and the Relevant Dealer shall comply with the provisions set
out in the VRN
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Schedule, unless the Issuer and the Relevant Dealer agree otherwise. The VRN
Schedule may be changed in respect of any Series of Variable Rate Notes by
agreement in writing between the Issuer and the Relevant Dealer.
(3) Subject to compliance by the Issuer with all relevant laws,
regulations and directives, Notes shall have maturities of not less than 12
months nor more than 15 years from their respective Issue Dates or such shorter
Tenor as may be agreed between the Issuer and the Relevant Dealer.
(4) Notes may either be listed on a stock exchange or may be unlisted.
Notes may be cleared through the clearing system operated by the Depository.
(5) Further Notes of the same Series may be issued at different Issue
Prices and on different Issue Dates. The Issuer may, however, at any time by
notice to the Dealers under this Agreement determine that no further Notes of a
particular Series will be issued. Any such determination will be irrevocable.
(6) Prior to the Issue Date for any Tranche of Notes to be subscribed for
by any Dealer, a Pricing Supplement in respect of such Tranche shall be prepared
(in the case of a subscription pursuant to Clause 2(A)) by the Relevant Dealer
and (in the case of a Syndicated Issue) by the Lead Manager after consultation
with the Issuer.
(7) Notes of each Tranche may be issued in the form of:-
(a) a Temporary Global Note, which will be exchangeable commencing on
the Exchange Date (as defined in the relevant Temporary Global
Note) for (i) Definitive Notes or (ii) a Permanent Global Note
which will be exchangeable as described therein for Definitive
Notes, in accordance with the terms thereof; or
(b) a Permanent Global Note which will be exchangeable for Definitive
Notes upon the occurrence of the events set out in the relevant
Permanent Global Note, in accordance with the terms thereof.
(8) The aggregate principal amount of Notes outstanding (other than (a)
Notes which have become due for payment where the Issuing and Paying Agent is
holding sufficient funds for the payment in full of all such Notes and (b) Notes
which have become void in accordance with their terms) at any one time shall not
exceed the Programme Limit.
(9) The Notes and Coupons shall be substantially in the respective forms
set out in the Trust Deed, as amended, varied and/or supplemented in relation to
each Series by the Pricing Supplement(s) relating to such Series. Notes having
terms not contemplated by this Agreement or the Information Memorandum or a form
not contemplated by the Trust Deed may be issued by agreement between the
Issuer, the Relevant Dealer(s), the Issuing and Paying Agent and the Trustee.
(D) Determination of Amounts Outstanding: For the purposes of Clause
4(A)(11), paragraph (6) of sub-Clause (B) above and paragraph (8) of sub-Clause
(C) above:-
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(1) the premium of Notes payable on the redemption of such Notes
shall be added to their principal amount;
(2) the principal amount of Notes issued at a discount or premium as
at any time shall equal their principal amount as at such time;
and
(3) the Singapore Dollar equivalent of the principal amount of Notes
denominated in a currency other than Singapore Dollars shall be
determined on the basis of the spot rate for the sale of the
Singapore Dollar against the purchase of relevant currency in the
Singapore foreign exchange market quoted by any leading bank
selected by the Relevant Dealer with the consent of the Issuer
(such consent not to be unreasonably withheld) on the Agreement
Date.
4. WARRANTIES AND AGREEMENTS
(A) Warranties and Agreements: The Issuer warrants to and agrees with the
Arranger and the Dealers and each of them that at the date of this Agreement and
each Certification Date:-
(1) Corporate Existence and Capacity: it is a public company duly
incorporated and validly existing under the laws of Singapore
with corporate power and authority to conduct its business in
each jurisdiction where it carries on business and to own its
assets;
(2) Information Memorandum: (a) the Information Memorandum contains
all information with regard to the Issuer and its subsidiaries
which is material in the context of the issue and offering of the
Notes, such information is true and accurate in all material
respects, the opinions, expectations and intentions expressed in
the Information Memorandum have been carefully considered, are
based on all relevant considerations and facts which the Issuer
is aware or ought to be aware existing at the date thereof and
are fairly, reasonably and honestly held by the directors of the
Issuer; that there are no other material facts the omission of
which in the said context would make any such information or
expression misleading in any material respect and the directors
of the Issuer have made all reasonable enquiries to ascertain all
material facts for the purpose aforesaid and to verify all facts
and information therein are true and accurate in all material
respects and will if required supply the Arranger with such
evidence to support the same as the Arranger may reasonably
require to satisfy itself as to the accuracy and completeness
thereof and, where such information relates to opinions or
expectations, the basis for such opinions or expectations, (b)
all factual information furnished or to be furnished by the
Issuer or its subsidiaries to the Arranger in connection with the
issue of the Notes or the Information Memorandum or the
negotiation of this Agreement is provided to the Arranger
responsibly and is honestly held and (c) the Issuer
12
shall make available to each Dealer, from time to time, as many
copies of the Information Memorandum as such Dealer may
reasonably request;
(3) Accounts: (a) the audited consolidated accounts of the Issuer and
the Group contained in the most recent Information Memorandum:-
(i) include a balance sheet and profit and loss account and
such other documents required by United States generally
accepted accounting principles to be annexed to such
accounts to be laid before the Issuer in general meeting
for the financial year in question;
(ii) were prepared in accordance with United States generally
accepted accounting principles;
(iii) have been prepared in accordance with all applicable laws
in Singapore; and
(iv) represent a true and fair view of the financial position
and state of affairs of the Issuer and the Group taken as
a whole for the financial year ended on and as at the
relevant date and, without prejudice to the generality of
the foregoing, such financial statements make adequate
provision or reserve for, where necessary or as
appropriate, and disclose all known material liabilities
(actual or contingent) and all material capital
commitments (actual or contingent) of the Issuer and its
subsidiaries and the provisions or reserves included
therein are sufficient to cover all material taxation
deferred or otherwise in respect of all accounting periods
ended on or before the relevant date for which the Issuer
or its subsidiaries would (based on circumstances and
facts which the Issuer is aware) at any time thereafter
become or have become liable; and
(b) the most recent unaudited results of the Issuer and the
Group have been prepared in accordance with United States
generally accepted accounting principles;
(4) Changes: since the date of the most recent audited consolidated
accounts or, as the case may be, unaudited half yearly group
results of the Group delivered to the Dealers pursuant to Clause
4(A)(13) and except as may be disclosed in the Information
Memorandum, there has been no adverse change, or any development
involving a prospective adverse change, in the financial
condition, business or results of operations of the Issuer or the
Group taken as a whole, which is material in the context of the
issue and offering of the Notes or which may affect the ability
of the Issuer to perform its payment obligations under the Notes;
13
(5) The Contracts and the Notes: (a) it has the corporate power and
authority and the legal capacity to issue the Notes issued or to
be issued by it upon the terms and conditions set out in the
Notes and the Contracts and to enter into and perform and observe
its obligations thereunder, (b) the execution, delivery and
performance by it of the Notes and the Contracts have been duly
authorised by all necessary corporate action on its part under
all applicable laws and regulations and no further corporate or
other action is required to be taken by it under any applicable
law or regulation of Singapore to authorise the execution,
delivery and/or performance of the Notes and the Contracts and
(c) the Notes (when executed and delivered in accordance with the
Contracts) and the Contracts constitute its valid, legally
binding and enforceable obligations except that:-
(i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights; and
(ii) the availability of equitable remedies may be affected by
equitable principles generally;
(6) Status of the Notes: the Notes, when issued and delivered in
accordance with this Agreement and the Trust Deed, will be
direct, unconditional, unsecured and unsubordinated obligations
of the Issuer ranking pari passu, without any preference or
priority among themselves, and pari passu with all other
unsecured obligations (other than subordinated obligations and
priorities created by law) of the Issuer;
(7) Compliance: the issue of Notes under this Agreement, their
offering on the terms and subject to the conditions contained
herein, the execution and issue by the Issuer of, and compliance
by the Issuer with the terms of, the Notes (including any
Temporary Global Note or Permanent Global Note) and the Coupons
and the execution and delivery by or on behalf of the Issuer of,
and compliance by the Issuer with the terms of, the Contracts:-
(a) do not, and will not conflict with, or result in a breach of
any of the terms or provisions of, or constitute a default
under, the Memorandum and Articles of Association;
(b) do not and will not contravene any law, rule, regulation,
judgement, decree, permit, authorisation, policy or
directive (in each case, whether or not having the force of
law) which is binding on the Issuer, or to which the Issuer
is subject;
(c) do not and will not infringe in any material respect or
result in any breach in any material respect of, any of the
terms of, or constitute a default in any material respect
under, or cause to be exceeded in any material respect any
limit imposed by, any agreement, trust deed or instrument to
14
which the Issuer or any of its Principal Subsidiaries is a
party or is subject or by which the Issuer or any of its
Principal Subsidiaries or any part of their respective
undertaking, assets, property or revenues is bound; or
(d) do not and will not result in the creation or imposition of
or oblige the Issuer or any of its Principal Subsidiaries to
create any encumbrance on its assets or any of them;
(8) No Litigation: save as disclosed in the Information Memorandum,
there are no pending actions, suits or proceedings against or
affecting the Issuer or any of its Principal Subsidiaries or any
of their respective properties which could individually or in the
aggregate have a material adverse effect on the financial
condition, business or results of operations of the Issuer or
would adversely affect the ability of the Issuer to perform its
payment or other material obligations under the Contracts or the
Notes, or which are otherwise material in the context of the
issue of the Notes, and to the best of the knowledge of the
Issuer, no such actions, suits or proceedings are threatened;
(9) No Event of Default: no condition, omission, event or act has
occurred or circumstance arisen which, had the Notes already been
issued, would (or upon the giving of notice and/or the passage of
time and/or the fulfilment of any other requirement provided in
Condition 9 would) constitute an Event of Default;
(10) No Breach: neither the Issuer nor any of its Principal
Subsidiaries is in breach of or in default under any agreement to
which it is a party or which is binding on the Issuer or any of
its Principal Subsidiaries or any of their respective assets or
revenues, which breach or default is material in the context of
the issue and offering of the Notes;
(11) Maximum Aggregate Amount: as of the Issue Date for any Notes,
after giving effect to the issuance of such Note and of any other
Notes to be issued by the Issuer, and to the redemption of Notes
to be redeemed by the Issuer, and Notes which have become void in
accordance with their terms, on or prior to such Issue Date, the
aggregate principal amount of Notes outstanding will not exceed
the Programme Limit;
(12) Contracts: the Issuer will not without first notifying all
Dealers in writing terminate or amend the terms of any of the
Contracts;
(13) Delivery of Accounts and Other Information: the Issuer shall:-
(a) as soon as the same are published, but in any event no later
than 150 days after the end of each financial year, make
available to each of the Dealers copies of the Annual Report
15
of the Issuer for that year including the audited
consolidated accounts of the Group for that year, prepared
in accordance with United States generally accepted
accounting principles (except as otherwise stated in such
accounts or the notes thereto) and a copy of the report of
the Issuer's auditors thereon;
(b) as soon as the same are published, but in any event no later
than 90 days after the end of the relevant financial half
year, make available to each of the Dealers copies of the
unaudited half yearly summary group results of the Group (if
any);
(c) on or promptly after the date on which the Issuer issues any
press release or makes any public announcement or discloses
to the public any other event or circumstance which is
material in the context of the Programme or the Notes,
furnish such information to the Dealers, and if furnished
orally such information will be confirmed promptly in
writing in accordance with Clause 10;
(14) Notification of Event of Default: the Issuer shall, promptly upon
becoming aware of the same, notify the Dealers of the occurrence
of any Event of Default and of any other event or circumstance
which, upon the giving of notice and/or the passage of time
and/or the fulfilment of any other requirement provided in
Condition 9, would constitute an Event of Default;
(15) Securities Act:-
(a) in the reasonable belief of the Issuer, no substantial US
market interest within the meaning of Regulation S under the
Securities Act exists in its debt securities; and
(b) neither the Issuer, its affiliates nor any person acting on
behalf of the Issuer or such affiliates has engaged or will
engage in any directed selling efforts (as defined in
Regulation S under the Securities Act) with respect to the
Notes and each of them has complied and will comply with the
offering restrictions requirement of such Regulation;
(16) Authorisations and Consents: all consents, authorisations,
licences or approvals of, and registrations and filings with, any
governmental or regulatory authority required by the Issuer in
connection with the issue by the Issuer of Notes under this
Agreement and the performance of the Issuer's obligations under
the Contracts and the Notes have been obtained and are in full
force and effect or where such consents, authorisations, licences
or approvals contain any terms, conditions or restrictions, such
terms, conditions and restrictions have been complied with or, as
the case may be, will be
16
obtained, fulfilled or done to the extent that they are capable
of being obtained, fulfilled or done on or before the relevant
Issue Date, or if they can only be fulfilled after the relevant
Issue Date, that they will be so fulfilled as soon as practicable
thereafter and the Issuer is permitted to issue such Notes
pursuant to all relevant laws, regulations, and directives;
(17) Authorised Representative: the Issuer will notify the Dealers
immediately in writing if any of the persons named in the list
referred to in paragraph 3 of the Initial Documentation List
ceases to be authorised to take action on behalf of the Issuer or
if any additional person becomes so authorised together, in the
case of an additional authorised person, with evidence
satisfactory to the Dealers that such person has been so
authorised;
(18) Information on Noteholders' Meetings: the Issuer will, at the
same time as it is despatched, furnish the Dealers with a copy of
every notice of a meeting of the holders of the Notes (or any of
them) which is despatched at the instigation of the Issuer and
will notify the Dealers promptly after it becomes aware that a
meeting of the holders of the Notes (or any of them) has been
convened by Noteholders;
(19) Use of Proceeds: the Issuer will apply the net proceeds of the
issues of the Notes (after deducting issue expenses) for general
corporate purposes (including capital expenditure), working
capital requirements and investments of the Issuer and its
subsidiaries;
(20) Insurance: each of the Issuer and its Principal Subsidiaries has
(using its reasonable endeavours) caused to be effected adequate
insurance cover with reputable insurers on all their real
property which are of an insurable nature against fire and other
risks normally insured against by the Issuer and its Principal
Subsidiaries in respect of such real property;
(21) Taxation: as far as the Issuer is aware or save as disclosed in
the Information Memorandum, neither the Issuer nor any of the
Principal Subsidiaries are subject to any taxation dispute which,
when finally determined, would have a material adverse effect on
the financial position of the Issuer or the Group taken as a
whole;
(22) Notification: the Issuer shall promptly after becoming aware
notify the Relevant Dealer before the relevant Issue Date of any
breach of any of the representations, warranties, undertakings
and agreements contained in this Clause in any respect or of
anything which has or would have rendered or will render untrue
or incorrect in any respect any of such representations,
warranties, undertakings and agreements and take such steps as
may be reasonably requested by the Relevant Dealer to remedy
and/or publicise the same; and
17
(23) Exchange of Global Notes: the Issuer shall procure that each
Temporary Global Note shall be exchanged for a Permanent Global
Note or for Definitive Notes and that each Permanent Global Note
shall be exchanged for Definitive Notes, in each case in
accordance with the Agency Agreement and the relevant Global
Note.
When a Dealer agrees to purchase Notes such agreement shall be on the basis of,
and in reliance on, a representation which the Issuer shall be deemed to make on
each Certification Date to the effect that the above warranties and agreements
are correct and complied with in all respects as at the date of such
representation and as at the proposed Issue Date with reference to the then
existing circumstances.
(B) Continuation in Force: The warranties and agreements contained in this
Clause shall continue in full force and effect notwithstanding any investigation
by or on behalf of the Dealers (or any of them) or completion of the issue and
subscription of any Notes.
5. INDEMNITIES
(A) Breach of Warranty: Without prejudice to the other rights or remedies
of the Dealers, the Issuer covenants with the Arranger and the Dealers and each
of them that the Issuer will keep the Arranger and the Dealers indemnified
against any reasonable losses, liabilities, costs, claims, charges, actions,
demands and expenses (including, but not limited to, all reasonable costs,
charges and expenses paid or incurred in disputing or defending any of the
foregoing) which they may incur or which may be made against them as a result of
or in relation to any actual or alleged misrepresentation in or breach of any of
the warranties or agreements of the Issuer set out in Clause 4(A) except that
such indemnity shall not extend to any action against the Arranger or, as the
case may be, any Dealer commenced by any person who has been supplied with, and
relied on, any information supplied by the Arranger or, as the case may be, such
Dealer in contravention of Clause 8.
In case any action, proceeding, claim or demand shall be brought
against the Arranger or any of the Dealers, in respect of which indemnity may be
sought from the Issuer as provided above, the Arranger or, as the case may be,
such Dealer shall promptly notify the Issuer in writing and (subject to the
provision by the Issuer of such security against such Dealer's liability in
respect of such action, proceeding, claim or demand as the Arranger or, as the
case may be, such Dealer may require) the Issuer shall have the option to assume
the defence thereof, including the employment of legal advisers selected by the
Issuer but approved by the Arranger or, as the case may be, such Dealer (such
approval not to be unreasonably withheld) subject to the payment by the Issuer
of all fees and expenses of such employment. The Arranger or, as the case may
be, such Dealer shall have the right to select separate legal advisers to assume
such legal defences and otherwise to participate in the defence of such action,
proceeding, claim or demand on behalf of the Arranger or, as the case may be,
such Dealer but the fees and expenses of such legal adviser shall be borne by
the Arranger or, as the case may be, such Dealer (unless the Issuer has
authorised the employment of separate legal advisers by the Arranger or, as the
case may be, such Dealer such authorisation not to be
18
unreasonably withheld). The Issuer shall not be liable in respect of any
settlement of any action effected without its consent.
(B) Failure to Issue: The Issuer covenants with the Dealers that it will
keep the Dealers indemnified against any losses which they may incur as a result
of Notes not being issued for any reason (other than (1) any failure of a Dealer
to pay or (2) either of the conditions in Clause 3(B)(8) or 3(B)(14) not having
been fulfilled) after an agreement for the purchase of such Notes has been made.
6. LISTING
(A) Initial Application for Listing: The Issuer confirms that it has
caused to be made or will cause to be made an application for the Programme to
be listed on the SGX-ST. In connection with such application, the Issuer
agrees:-
(1) on the date of this Agreement (or as soon as practicable
thereafter) to supply to the SGX-ST copies of the Information
Memorandum and such other documents, information and undertakings
as may be required for the purpose of obtaining such listing; and
(2) to use its best endeavours procure that the Information
Memorandum shall be approved by the SGX-ST.
(B) Maintenance of Listings: The Issuer agrees to use all reasonable
endeavours to maintain such listing for so long as any Notes which are or are to
be listed on the SGX-ST are outstanding, to pay all fees and to deliver,
publish, register and furnish (or procure that any such action is taken on its
behalf) from time to time such further documents, information and undertakings
(in addition to any already published or lodged with the SGX-ST) and publish all
advertisements or other material as may be necessary or advisable in order to
maintain the listing on the SGX-ST of the Programme.
(C) Announcements: The Issuer hereby authorises the Relevant Dealer(s) to
arrange, on behalf and at the expense of, and after consultation with, the
Issuer, for the publication on behalf of the Issuer of such particulars of the
Programme or the Notes from time to time in such newspapers or otherwise and on
such dates as are required by the Stock Exchange and otherwise as the Issuer may
agree with the Relevant Dealer. The Issuer may also authorise the Arranger or
any other Dealer specifically for such purpose.
(D) Alternative or No Listing: The Issuer agrees that if maintenance of
such listing has become impossible or if in connection with any issue of the
Notes, the Issuer and the Relevant Dealer(s) (or the Lead Manager in the case of
a Syndicated Issue) agree to list such Notes on another stock exchange, it will
use all reasonable endeavours to obtain and maintain a quotation for a listing
of the Programme and/or such Notes, as the case may be, on another stock
exchange or exchanges agreed between it and either (1) the Relevant Dealer(s)
(in the case of Notes which have been issued and are outstanding) or (2) all
Dealers (in relation to the Programme). This sub-Clause (D) shall be applied to
any subsequent listing of the Programme or the Notes mutatis mutandis. In
addition, the Issuer and the Relevant Dealer(s) may agree that an issue of the
Notes be unlisted.
7. AUTHORITY TO DISTRIBUTE DOCUMENTS
19
Subject to Clause 8, the Issuer hereby authorises each of the Dealers
on behalf of the Issuer to provide copies of the Information Memorandum (and
such additional written information as the Issuer shall, in writing, provide to
and authorise the Dealers so to use) to actual and potential purchasers of the
Notes or of any interest therein or right in respect thereof. The foregoing
authority shall extend to permit the provision of copies of some only of the
documents for the time being comprising the Information Memorandum where the
remainder of such documents at that time forming the Information Memorandum have
already been previously provided to the same recipient.
8. AGREEMENTS OF DEALERS
(A) No Distribution: Each Dealer agrees not to offer, sell or deliver any
Note or any interest therein or right in respect thereof, or to distribute the
Information Memorandum or any other document, to any person or in or from any
jurisdiction except in such manner and in such circumstances as will result in
compliance with all applicable laws, regulations and authorisations issued
thereunder. Each Dealer will moreover comply, at its own expense, with the
restrictions set out in Appendix 7. Each Dealer will keep the Issuer indemnified
against any losses, liabilities, costs, claims, charges, actions, demands and
expenses (including, but not limited to, all reasonable costs, charges and
expenses paid or incurred in disputing or defending any of the foregoing) which
it may incur, or which may be made against it, as a result of or in relation to
any unauthorised action by that Dealer or the failure by such Dealer to comply
with the restrictions set out in this Clause or in Appendix 7. The provisions of
Clause 5 with respect to the conduct and settlement of action shall apply
mutatis mutandis to the indemnity set out in this Clause.
(B) Circulation of Material: Each Dealer agrees and undertakes that, in
connection with the sale and distribution of the Notes, it will circulate the
most up-to-date material which has been supplied by the Issuer pursuant to
Clause 4(A)(13) above (and which has not been the subject of a notice of
withdrawal by the Issuer).
(C) No representation: Except as expressly set out in the Information
Memorandum, no Dealer is authorised to make any representation or to use any
information in connection with the sale of any Note or any interest therein or
right in respect thereof.
(D) Obtaining of Consents: Each Dealer agrees that it will obtain, and
that the Issuer shall have no responsibility for obtaining, any consent,
approval or permission required for the purchase, offer, sale or delivery of the
Notes under the laws and regulations in force in any jurisdiction to which it is
subject or in or from which any subscription, offer, sale or delivery or
distribution of the Information Memorandum or any other document is made, except
for the invocation of the exemption under Section 106C and/or Section 106D of
the Companies Act for the offer of the Notes in Singapore, which shall, and the
Issuer hereby agrees that such invocation shall, be the responsibility of the
Issuer.
(E) Compliance and Procedures: Each Dealer purchasing any Notes shall
comply with all other procedures relating to the issue and purchase of Notes set
out in the Contracts.
20
9. AUTHORITY OF ISSUER
Unless herein otherwise specifically provided, any order, notice,
request, direction or other communication from the Issuer made or given under
any provision of this Agreement shall be sufficient if it is signed by any of
the persons named in the list referred to in paragraph 3 of the Initial
Documentation List, subject to any notification received by the Dealers from the
Issuer in accordance with Clause 4(A)(17).
10. COMMUNICATIONS
All communications shall be by facsimile or in writing delivered by
hand or sent by prepaid registered post or by telephone (but only where
specifically provided). All communications by telephone shall be promptly
confirmed by facsimile, provided that any failure so to confirm shall not
invalidate the original communication. Each communication shall be made to the
relevant party at the facsimile number or address or telephone number, in the
case of a communication by facsimile or in writing, marked for the attention of,
and in the case of a communication by telephone made to, the person from time to
time designated in writing by that party to the other for the purpose. The
initial telephone number, facsimile number, address and person so designated by
the Issuer, the Arranger and the Dealer are set out below:-
The Issuer
ST Assembly Test Services Ltd,
5, Yishun Street 23,
Singapore 768442.
Telephone Number: 751 1822/751 1851
Facsimile Number: 755 1585/755 3153
Attention: Mr Tan Lay Koon/Ms Pearlyne Wang
The Arranger
Citicorp Investment Bank (Singapore) Limited,
3, Temasek Avenue, #17-00,
Centennial Tower,
Singapore 039190.
Telephone Number: 328 5172/5505
Facsimile Number: 328 5663
Attention: Mr Tan Kee Phong/Ms Donna Kng/Mr Daniel Tay
The Dealer
Citicorp Investment Bank (Singapore) Limited,
3, Temasek Avenue, #15-00,
Centennial Tower,
Singapore 039190.
21
Telephone Number: 328 2800
Facsimile Number: 222 7921
Attention: Ms Cynthia Teong/Ms Christina Lim
A communication will be deemed received (if by telephone) when made, (if by
facsimile) when despatched and receipt in good order is acknowledged by
telephone, (if in writing by hand) when left at the address required by this
Clause or (if in writing sent by prepaid registered post) within two days after
being sent by prepaid registered post addressed to the relevant party at that
address, in each case in the manner required by this Clause. Every communication
shall be irrevocable unless not acted upon.
11. STATUS OF THE DEALERS AND THE ARRANGER
(A) Dealers' Obligations Several: Save as provided in the relevant
Subscription Agreement, the obligations of the Dealers under this Agreement are
several and not joint.
(B) Exoneration: Without prejudice to each Dealer's obligations under
Clause 8, none of the Dealers or the Arranger will be responsible to any other
Dealer for the adequacy, accuracy or completeness or reasonableness of any
representation, warranty, undertaking, agreement, statement or information in
the Information Memorandum, any Pricing Supplement, the Contracts or any
information provided in connection with the Programme.
(C) Responsibilities: Each of the Dealers confirms that, in relation to
each other Dealer and the Arranger, it has itself been, and will at all times
continue to be (based on information which it has deemed sufficient), solely
responsible for making its own independent investigation and appraisal of the
business, financial condition, creditworthiness, prospects, status and affairs
of the Issuer and its subsidiaries and assuring itself of the nature and
suitability to such Dealer of all legal, tax and accounting matters and all
documentation in connection with the Programme or any Tranche.
(D) Role of the Arranger: The Arranger shall have only those duties,
obligations and responsibilities expressly specified in this Agreement.
12. TIME
Time shall be of the essence of the terms of this Agreement.
13. FEES, EXPENSES AND STAMP DUTIES
(A) Arrangement Fee: The Issuer agrees to pay to the Arranger an
arrangement fee (including any goods and services and other taxes or duties
thereon) in the amount, at the time and in the manner stated in a letter dated
22nd May, 2001 from the Arranger to the Issuer and countersigned by the Issuer.
(B) Expenses and Stamp Duties: The Issuer agrees to:-
(1) Enforcement Expenses: pay to the Arranger and each Dealer, on
demand, all costs and expenses (including, without limitation,
goods and services tax and any other taxes or duties thereon and
any
22
legal fees) incurred by the Arranger or, as the case may be, that
Dealer in enforcing any rights under this Agreement or any
Notes;
(2) Expenses: pay to the Arranger and each Dealer (a) all reasonable
costs and expenses incurred in or in connection with the
performance of the Issuer's obligations hereunder, including
(without limitation) (i) all expenses incurred in connection with
the issue, authentication, packaging and initial delivery of the
Notes and the preparation and printing of Temporary Global Notes,
the Permanent Global Notes, the Definitive Notes, the Contracts,
the Information Memorandum and all amendments and supplements
thereto and any other document relating to the issue and delivery
of the Notes and (ii) the cost of any advertising agreed by the
Issuer in connection with the issue of the Notes and (b) all fees
and expenses payable to any Stock Exchange in connection with or
relating to the listing of the Programme and the Notes on such
Stock Exchange and all the fees and charges of the Depository;
and
(3) Stamp and Other Duties: indemnify and hold the Arranger and the
Dealers harmless against any documentary, stamp, goods and
services, value added or similar transfer or issue tax, including
any interest and penalties, on the issue of Temporary Global
Notes, the Permanent Global Notes and Definitive Notes in
accordance with the terms of this Agreement, and on the execution
and delivery of the Contracts, or on the exchange of Temporary
Global Notes or Permanent Global Notes for Definitive Notes.
(C) No Deduction or Withholding: All payments of fees and expenses
hereunder will be made without any deduction or withholding for or on account of
any taxes, duties or other levies (including, but not limited to, any taxes,
duties or levies on the supply of goods and services). Where any services or
supplies supplied under this Agreement falls within the ambit of the Goods and
Services Act, Chapter 117A of Singapore, the party making payments for such
services or supplies shall also pay the applicable goods and services tax.
14. ACCESSIONS AND TERMINATION
(A) Additional Dealers: The Issuer may from time to time appoint one or
more additional Dealers upon the terms of this Agreement. Any such appointment
of a Dealer may be in respect of a single Tranche or the whole Programme. Upon
any person who is not a Programme Dealer (1) entering into a Subscription
Agreement or (2) receiving a letter substantially in the form of Appendix 8 duly
countersigned by the Issuer, such person shall become a party to this Agreement
as a Dealer vested with all the authority, rights, powers, duties and
obligations as if originally named as a Dealer hereunder, provided that such
authority, rights, powers, duties and obligations shall be limited to those that
accrue in connection with the Tranche in respect of which such person is
appointed Dealer and shall not extend to those that relate to Programme Dealers
unless such person is appointed as a Programme Dealer.
23
(B) Termination: (1) The Issuer may at any time terminate this Agreement
by giving not less than 30 days' notice to the Dealers, the Issuing and Paying
Agent and the Trustee.
(2) The Issuer may terminate this Agreement with respect to any Dealer by
giving not less than 30 days' notice to such Dealer, the Issuing and
Paying Agent and the Trustee. Any party may terminate this Agreement
with respect to itself by giving not less than 30 days' notice to the
other parties, the Issuing and Paying Agent and the Trustee.
(3) Notwithstanding paragraphs (1) and (2) above, any settlement with
respect to Notes placed by a Dealer occurring after termination of
this Agreement shall be made in accordance with this Agreement.
(C) Rights Accrued: No such termination shall, in any event, affect any
rights or obligations accrued or incurred as at the effective date of
termination or which accrue thereafter in relation to any act or omission which
occurred prior to such termination. Without prejudice to the generality of the
foregoing, the Issuer will, notwithstanding termination of this Agreement for
any reason, remain responsible for the expenses to be paid or reimbursed by it
pursuant to Clause 13 and all obligations of the Issuer under Clause 5, and all
obligations of the Dealers under Clause 8 shall remain in effect. In addition,
if any such termination occurs after the Issuer has accepted an offer to
subscribe or procure the subscription of Notes and prior to the Issue Date in
respect thereof, the obligations of the Issuer under Clauses 2 and 3 and the
obligations of the Dealers under Clause 8 shall also remain in effect.
15. BENEFIT OF AGREEMENT
(A) Benefit: This Agreement shall be binding upon and shall inure for the
benefit of the Issuer, the Arranger and each Dealer and their respective
successors and permitted assigns.
(B) Assignment and Transfer: The Dealers may assign or transfer their
rights or obligations under this Agreement. If the Dealers assign their rights
or transfer their obligations as provided in this Clause, the relevant assignee
or transferee shall be treated as if it were a party to this Agreement with
effect from the date on which such assignment or transfer takes effect; provided
that any transfer shall only become effective when the Issuer has received an
undertaking from the transferee to be bound by this Agreement and to perform the
obligations transferred to it.
16. INCREASE IN PROGRAMME LIMIT
(A) Notice of Increase: From time to time the Issuer may increase the
Programme Limit by delivering to the Arranger, the Issuing and Paying Agent, the
Agent Bank, the Trustee and each of the Programme Dealers the letter set out in
Appendix 9, whereupon all references in the Contracts and the Procedures
Memorandum shall be to the Programme Limit in the increased amount.
(B) Conditions Precedent: The right of the Issuer to increase the
Programme Limit shall be subject to the Issuer having received the consent to
the increase in the Programme Limit of the Board of the Issuer and all necessary
consents, approvals,
24
clearances and authorisations from any applicable regulatory authorities
including the SGX-ST and to the production by the Issuer of a supplement to the
Information Memorandum and any further or other documents required by the SGX-ST
for the purpose of listing the Programme and/or the Notes.
17. COUNTERPARTS
This Agreement may be signed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
18. GOVERNING LAW
This Agreement is, and every agreement for the issue and subscription
of Notes pursuant to Clause 2 shall be, governed by and construed in accordance
with the laws of Singapore.
25
A P P E N D I X 1
INITIAL DOCUMENTATION LIST
1. A certified copy of each of (1) the certificate of incorporation of
the Issuer and (2) the Memorandum and Articles of Association of the Issuer.
2. A certified copy of the resolutions of the Board of Directors of the
Issuer authorising (1) the establishment of the Programme, (2) the execution,
delivery and performance of the Contracts and (3) appropriate persons to execute
and deliver the Contracts on behalf of the Issuer and to take any action on
behalf of the Issuer in connection with the Contracts, including the issue of
the Notes in accordance with Clause 2.
3. A certified list of names, titles and specimen signatures of the
persons authorised on behalf of the Issuer:-
(1) to execute the Contracts, the Notes (as appropriate) to be issued
pursuant to Clause 2 and any agreements entered into pursuant to
Clause 2;
(2) to sign or give or deliver all notices and other documents to be
delivered in connection with the Contracts and the Notes to be
issued pursuant to Clause 2; and
(3) to take any other action in relation to the Contracts and the
Notes to be issued pursuant to Clause 2.
4. Certified copies of all consents required by the Issuer for the
establishment of the Programme, the issue and payment of the Notes and the
execution, delivery and performance of the Contracts or, if no such consents are
necessary, a certificate to that effect from a person duly authorised by the
Issuer so to certify.
5. A legal opinion addressed to the Arranger and the Dealers dated on or
after the date of this Agreement, in such form and with such contents as the
Arranger may require from Allen & Gledhill.
6. The Agency Agreement duly executed and delivered by the parties
thereto.
7. The Trust Deed duly executed and delivered by the parties thereto.
8. The Depository Agreement duly executed and delivered by the parties
thereto.
9. The Deed of Covenant duly executed and delivered by the Issuer.
10. Copies of the Information Memorandum in such numbers as agreed with
the Issuer.
26
A P P E N D I X 2
FORM OF PRICING SUPPLEMENT
Pricing Supplement
[LOGO, if document is printed]
ST ASSEMBLY TEST SERVICES LTD
(Incorporated with limited liability in Singapore)
S$500,000,000
Multicurrency Medium Term Note Programme
SERIES NO: [ ]
TRANCHE NO: [ ]
[Brief Description and Amount of Notes]
Issue Price : [ ] per cent.
[Publicity Name(s) of Dealer(s)]
The date of this Pricing Supplement is [ ].
27
This Pricing Supplement relates to the Tranche of Notes referred to above.
Where interest is derived from any Notes by any person who is not resident in
Singapore and who carries on any operations in Singapore through a permanent
establishment in Singapore, the tax exemption available under Section13(1)(a) of
the Income Tax Act, Chapter 134 of Singapore shall not apply if such person
acquires such Notes using the funds and profits of such person's operations
through a permanent establishment in Singapore. Any person whose interest
derived from the Notes is not exempt from tax shall include such interest in a
return of income made under the Income Tax Act, Chapter 134 of Singapore.
Signed:
----------------------------------------
Duly Authorised Officer
The terms of the Notes and additional provisions relating to their issue are as
follows:-
[Include whichever of the following apply]
1. Series No.: [ ]
2. Tranche No.: [ ]
3. Currency: [ ]
4. Principal Amount of Series: [ ]
5. Principal Amount of Tranche: [ ]
6. Denomination Amount: [ ]
7. Calculation Amount (if different
from Denomination Amount): [ ]
8. Issue Date: [ ]
9. Redemption Amount [Denomination Amount/
(including early redemption): [others]]
10. Interest Basis: [Fixed Rate/Floating Rate/
Variable Rate/Hybrid]
11. Interest Commencement Date: [ ]
12. Fixed Rate Note
(a) Maturity Date: [ ]
28
(b) Fixed Rate Day Basis: [ ]
(c) Reference Date(s): [ ]
(d) Initial Broken Amount: [ ]
(e) Final Broken Amount: [ ]
(f) Interest Rate: [ ] per cent. per annum
13. Floating Rate Note
(a) Redemption Month: [month and year]
(b) Interest Determination Date: [ ]
(c) FRN Day Basis: [ ]
(d) Interest Period: [ ]
(e) Benchmark: [SIBOR, Swap Rate or other
benchmark]
(f) Primary Source: [Specify relevant screen page
or "Reference Banks"]
(g) Reference Banks: [Specify three]
(h) Spread: [ ] per cent. per annum
14. Variable Rate Note
(a) Redemption Month: [month and year]
(b) Interest Determination Date: [ ]
(c) VRN Day Basis: [ ]
(d) Interest Period: [ ]
(e) Benchmark: [SIBOR, Swap Rate or other
benchmark]
(f) Primary Source: [Specify relevant screen page
or "Reference Banks"]
(g) Reference Banks: [Specify three]
(h) Spread: [ ] per cent. per annum
29
15. Hybrid Note
(a) Fixed Rate Period: [ ]
(b) Floating Rate Period: [ ]
(c) Maturity Date: [ ]
(d) Redemption Month: [month and year]
(e) Interest Determination Date: [ ]
(f) Fixed Rate Day Basis: [ ]
(g) FRN Day Basis: [ ]
(h) Reference Date(s): [ ]
(i) Initial Broken Amount: [ ]
(j) Final Broken Amount: [ ]
(k) Interest Rate: [ ] per cent. per annum
(l) Interest Period: [ ]
(m) Benchmark: [SIBOR, SWAP RATE or other]
(n) Primary Source: [specify relevant screen page
or "Reference Banks"]
(o) Reference Banks: [specify three]
(p) Spread: [ ] per cent. per annum
16. Issuer's Redemption Option: [Yes/No]
Issuer's Redemption Option Period: [Specify maximum and minimum
(Condition 5(d)): number of days for notice
period]
[Specify Dates]
17. Noteholders' Redemption Option: [Yes/No]
Noteholders' Redemption Option Period: [Specify maximum and minimum
(Condition 5(e)(i)): number of days for notice
period]
[Specify Dates]
18. Issuer's Purchase Option: [Yes/No]
30
Issuer's Purchase Option Period: [Specify maximum and
(Condition 5(b)): minimum number of days for
notice period]
[Specify Dates]
19. Noteholders' VRN Purchase Option: [Yes/No]
Noteholders' VRN Purchase Option Period: [Specify maximum and
(Condition 5(c)(i)): minimum number of days for
notice period]
[Specify Dates]
20. Noteholders' Purchase Option: [Yes/No]
Noteholders' Purchase Option Period: [Specify maximum and
(Condition 5(c)(ii)): minimum number of days for
notice period]
[Specify Dates]
21. Redemption for Taxation Reasons: [Yes/No]
[on [insert other dates of
redemption not on interest
payment dates]]
22. Notes to be represented on issue by: [Temporary Global Note/
Permanent Global Note. If
nothing is specified and this
Pricing Supplement does not
specify that the TEFRA C Rules
apply, Notes will be
represented initially by a
Temporary Global Note]
23. Temporary Global Note
exchangeable for Definitive Notes: [Yes/No]
24. Temporary Global Note exchangeable
for Permanent Global Note: [Yes/No]
25. Listing: [ ]
26. Notes to be cleared through The [Yes/No]
Central Depository (Pte) Limited
27. Method of issue of Notes: [Individual Dealer/
Syndicated Issue]
28. The following Dealer(s) [is/are] [insert legal name(s) of
subscribing the Notes: Dealer(s)]
29. The aggregate principal amount of S$[ ]
Notes issued has been translated in
31
Singapore Dollars at the rate of
[ ] producing a sum of
(for Notes not denominated in
Singapore Dollars):
30. Other terms:
Details of any additions or variations to
terms and conditions of the Notes as set
out in the Information Memorandum:
Any additions or variations to the selling
restrictions:
32
A P P E N D I X 3
PROCEDURES MEMORANDUM
-----------------------------------------------------------
PROCEDURES MEMORANDUM
relating to
ST ASSEMBLY TEST SERVICES LTD
S$500,000,000
MULTICURRENCY MEDIUM TERM NOTE PROGRAMME
-----------------------------------------------------------
[ALLEN&GLEDHILL LOGO]
36 Robinson Road #18-01
City House
Singapore 068877
C O N T E N T S
33
CLAUSE TITLE PAGE
- ------ ----- ----
PROCEDURES MEMORANDUM 35
OPERATING PROCEDURES 36
A. RESPONSIBILITIES OF THE ISSUING AND PAYING AGENT 36
B. RESPONSIBILITIES OF EACH DEALER/LEAD MANAGER 36
C. RESPONSIBILITY OF THE ISSUER 36
D. RESPONSIBILITY OF THE ISSUER, LEAD MANAGER
AND MANAGERS 37
E. SETTLEMENT 37
ANNEX A - 38
PART I - SETTLEMENT PROCEDURES FOR
NON-SYNDICATED ISSUES 38
PART II - SETTLEMENT PROCEDURES FOR
SYNDICATED ISSUES 43
ANNEX B - FORM OF DEALER'S CONFIRMATION
TO ISSUER FOR NON-SYNDICATED ISSUES 48
ANNEX C - FORM OF ISSUER'S CONFIRMATION
TO ISSUING AND PAYING AGENT
AND DEALER FOR NON-SYNDICATED ISSUES 49
34
PROCEDURES MEMORANDUM
This is the Procedures Memorandum referred to in the Programme
Agreement (as defined below), which sets out the administrative and operative
procedures and guidelines to be followed in relation to issues of Notes pursuant
to the S$500,000,000 Multicurrency Medium Term Note Programme (the "Programme")
established by ST Assembly Test Services Ltd (the "Issuer") under the Programme
Agreement for the issue of debt securities (the "Notes").
The documentation for the Programme provides for the issue of Notes
denominated in Singapore Dollars, United States dollars, Australian dollars,
Canadian dollars, Dutch guilders, Euro, Hong Kong dollars, Italian lire or
Japanese yen or in any currency or currencies as may be agreed between the
Issuer and the relevant Dealer (subject to compliance with all relevant laws,
regulations and directives) on one or more of the following interest payment
bases:-
(a) Fixed Rate Notes;
(b) Floating Rate Notes;
(c) Variable Rate Notes; and/or
(d) Hybrid Notes,
and on such other terms as may be agreed between the Issuer and the Relevant
Dealer(s).
Terms used herein (including the definitions of "Arranger" and
"Dealers") shall have the respective meanings given to them in the Programme
Agreement (as amended, varied or supplemented, the "Programme Agreement") dated
10th January, 2002 and made between the Issuer, the Arranger and the Dealers
named therein and in the Trust Deed (as amended, varied or supplemented, the
"Trust Deed") dated 10th January, 2002 and made between the Issuer and British
and Malayan Trustees Limited (the "Trustee", which expression shall include all
persons for the time being the trustee or trustees under the Trust Deed). An
Agency Agreement (as amended, varied or supplemented, the "Agency Agreement")
dated 10th January, 2002 has been entered into in relation to the Notes between
the Issuer, Citicorp Investment Bank (Singapore) Limited, as issuing and paying
agent and agent bank, and the Trustee.
35
OPERATING PROCEDURES
Dealers must confirm all trades directly with the Issuer, the Agent
Bank (if not itself the Dealer) and the Issuing and Paying Agent.
A. RESPONSIBILITIES OF THE ISSUING AND PAYING AGENT
The Issuing and Paying Agent will, in addition to the responsibilities
in relation to settlement described in Annex A hereto, be responsible for the
following:-
(i) in the case of Notes which are to be listed on a Stock Exchange,
distributing to the relevant Stock Exchange such number of copies
of the Pricing Supplements as it may reasonably require; and
(ii) in the case of Notes which are to be listed on a Stock Exchange,
immediately notifying the Issuer and the Relevant Dealer(s), as
the case may be, if at any time the Issuing and Paying Agent is
notified by the Issuer or the relevant Stock Exchange that the
listing of the Notes to be issued has been refused or otherwise
will not take place.
B. RESPONSIBILITIES OF EACH DEALER/LEAD MANAGER
Each Dealer or, as the case may be, the Lead Manager which agrees to
purchase Notes from the Issuer will be responsible for the following:-
(i) in the case of non-Syndicated Issues, preparing a confirmation
(substantially in the form of Annex B hereto) giving details of
the Notes to be issued;
(ii) preparing a Pricing Supplement (the form of which is set
out in Appendix 2 to the Programme Agreement) in respect of each
Tranche of Notes;
(iii) in the case of non-Syndicated Issues, each Dealer will be
responsible for notifying the Issuing and Paying Agent upon
completion of the distribution of the Notes purchased by that
Dealer and, in the case of Syndicated Issues, the Lead Manager
will be responsible for notifying the Issuing and Paying Agent
upon completion of the distribution of the Notes of such issue;
and
(iv) completing and submitting a Return on Debt Securities (in
respect of each Tranche or Series) to the Monetary Authority of
Singapore and the Inland Revenue Authority of Singapore within
ten working days (excluding Saturdays and Sundays) from the date
of issue of each Tranche or Series.
C. RESPONSIBILITY OF THE ISSUER
36
The Issuer will:-
(i) (in the case of non-Syndicated Issues) send to the Dealer a duly
signed confirmation (substantially in the form of Annex C
hereto), approving the Pricing Supplement; and
(ii) sign and return to the Dealer/Lead Manager the Return on Debt
Securities referred to above.
D. RESPONSIBILITY OF THE ISSUER, LEAD MANAGER AND MANAGERS
In the case of Syndicated Issues, the Issuer, the Lead Manager and the
Managers will cause to be prepared and agreed the Subscription Agreement.
E. SETTLEMENT
The settlement procedures set out in Annex A hereto shall apply, as
guidelines, to each issue of Notes (Part I in the case of non-Syndicated Issues
and Part II in the case of Syndicated Issues), unless otherwise agreed between
the Issuer, the Issuing and Paying Agent and the Relevant Dealer(s) or the Lead
Manager, as the case may be.
37
A N N E X A
PART I
SETTLEMENT PROCEDURES FOR NON-SYNDICATED ISSUES
DAY LATEST TIME ACTION
- --- ----------- ------
[to be agreed for The Issuer may agree terms
each issue of Notes] with one or more of the
Dealer(s) for the issue and
subscription of Notes.
[to be agreed for The Issuer obtains, with the
each issue of Notes] assistance of the Relevant
Dealer(s), all necessary
governmental and regulatory
approvals and consents for
the issue of Notes and
delivers any such approvals
and consents to the Relevant
Dealer(s).
no later than Issue 3.00 p.m. Each Dealer which has
Date minus 3 reached agreement with the
Issuer by telephone confirms
the terms of the agreement
to the Issuer by facsimile
(substantially in the form
set out in Annex B)
(including the attached
Pricing Supplement) and
copies the facsimile to the
Issuing and Paying Agent,
the Agent Bank (if
different) and the Trustee.
no later than Issue 2.00 p.m. The Issuer confirms its
Date minus 2 instructions to the
Issuing and Paying Agent by
facsimile with a copy to the
Agent Bank (if different)
and the Trustee and its
agreement with the Relevant
Dealer(s) by facsimile
(substantially in the form
set out in Annex C) and the
Issuer signs and returns
therewith the Pricing
Supplement as attached to
the Dealer's confirmation
(the "Confirmation"). In the
case of any discrepancy
between such facsimile from
the Issuer and the facsimile
from the Dealer(s) to the
Issuing and Paying Agent
referred to above, the
38
DAY LATEST TIME ACTION
- --- ----------- ------
details set out in the
signed Pricing Supplement
shall (in the absence of
manifest error) be
conclusive evidence of the
agreement and shall be
binding on the parties
accordingly.
no later than Issue 3.00 p.m. In the case of non-fixed
Date minus 2 rate Notes, the Issuing
and Paying Agent notifies
the Issuer, the Relevant
Dealer(s) and (in the case
of Notes which are to be
listed) the relevant Stock
Exchange by facsimile of the
interest rate for the first
interest period (if already
determined and notified to
the Issuing and Paying Agent
by the Agent Bank). Where
the interest rate has not
yet been determined, this
will be notified in
accordance with this
paragraph as soon as it has
been determined and notified
to the Issuing and Paying
Agent by the Agent Bank.
no later than Issue 5.00 p.m. In the case of Notes which
Date minus 2 are to be listed, the
Issuing and Paying Agent
also notifies the relevant
Stock Exchange, or arranges
for the notification to the
relevant Stock Exchange by
the relevant listing agent,
by facsimile of details of
the Notes to be issued by
sending the Pricing
Supplement, once signed by
the Issuer, and received by
the Issuing and Paying
Agent.
no later than Issue 2.00 p.m. In the case of Notes which
Date minus 1 are to be listed on the
SGX-ST, the Issuing and
Paying Agent sends three
copies of the Pricing
Supplement to the SGX-ST and
the Issuer pays the initial
listing fee to the SGX-ST.
no later than Issue 3.00 p.m. In the case where the Notes
Date minus 1 are to be accepted for
clearance by the Depository,
the Relevant Dealer provides
the Depository with a
provisional list of the
Securities Accounts of the
Depository Agents and the
direct Securities Account
holders which are to be
credited with the Notes,
specifying the names,
39
DAY LATEST TIME ACTION
- --- ----------- ------
NRIC/Passport Numbers,
Securities Account Numbers,
DA Codes as well as the
aggregate principal amount
of the Notes to be credited
to the Securities Accounts.
no later than Issue 3.45 p.m. In the case where the Notes
Date minus 1 of any Tranche are initially
represented by a Global
Note, the Issuer executes
the Global Note for such
Tranche and delivers it to
the Issuing and Paying Agent
for authentication. The
Relevant Dealer(s)
instruct(s) its bank to pay
the subscription price to
such account of the Issuer
with such bank in the
principal financial centre
for the currency in which
the Notes are denominated as
the Issuer may have notified
to the Relevant Dealer(s)
for the purpose in the
Confirmation.
Issue Date 2.00 p.m. In the case of Notes which
are to be accepted for
clearance by the Depository,
upon receipt of appropriate
documentation and
instructions from the Issuer
and verification thereof,
the Issuing and Paying Agent
completes and authenticates
a Global Note. Following
payment to the Issuer of the
subscription price in
immediately available and
freely transferable funds or
(as the case may be) same
day funds to such account as
the Issuer shall have
notified to the Relevant
Dealer(s) for the purpose in
the Confirmation and, on the
receipt of confirmation from
the Issuer that it has
received the subscription
price due to it, the Issuing
and Paying Agent delivers
the Global Note to the
Depository.
The Relevant Dealer delivers
to the Depository the final
list of the Securities
Accounts of the Depository
Agents and the direct
Securities Account holders
which are to be credited
with the Notes, specifying
the names, NRIC/Passport
Numbers,
40
DAY LATEST TIME ACTION
- --- ----------- ------
Securities Account Numbers,
DA Codes as well as the
aggregate principal amount
of the Notes to be credited
to the Securities Accounts.
In the case of Notes which
are not to be accepted for
clearance by the Depository,
the Issuing and Paying Agent
completes and authenticates
a Global Note. Following
payment to the Issuer of the
subscription price in
immediately available and
freely transferable funds or
(as the case may be) same
day funds to such account as
the Issuer shall have
notified to the Relevant
Dealer(s) for the purpose in
the Confirmation and, on the
receipt of confirmation from
the Issuer that it has
received the subscription
price due to it, the Issuing
and Paying Agent delivers
the Global Note to the
Relevant Dealer(s).
In any other cases, the
delivery of, and payment
for, Notes will be made in
the manner agreed between
the Issuer and the Relevant
Dealer(s).
On or subsequent to The Issuing and Paying Agent
the Issue Date notifies the Issuer of the
issue of Notes giving
details of the Temporary
Global Note or (as the case
may be) Permanent Global
Note and the principal
amount represented thereby.
In the case where the Notes
are not to be accepted for
clearance by the Depository
and are initially
represented by a Temporary
Global Note, the Relevant
Dealer procures the
preparation of Definitive
Notes.
The Issuing and Paying Agent
notifies the Singapore
Exchange Securities Trading
Limited, in the case of
Notes which are to be listed
on the SGX-ST (and in
respect of which a copy of
the Pricing Supplement has
been delivered to the
SGX-ST), the issue for any
reason does not proceed.
41
DAY LATEST TIME ACTION
- --- ----------- ------
Within 10 working The Issuer and Relevant
days from the Issue Dealer(s) sign the Return on
Date (excluding Debt Securities and Relevant
Saturdays and Dealer(s) submits a duly
Sundays) completed Return on Debt
Securities in respect of the
Notes to the Monetary
Authority of Singapore and
the Inland Revenue Authority
of Singapore.
Explanatory Notes
(a) Each day is a day (other than Saturday or Sunday) on which commercial banks
are open for business in Singapore.
(b) The Issue Date must be a business day as defined in the Notes.
(c) Times given are approximate times for the taking of the action in question
and are references to Singapore time.
42
PART II
SETTLEMENT PROCEDURES FOR SYNDICATED ISSUES
DAY LATEST TIME ACTION
- --- ----------- ------
[to be agreed for The Issuer may, subject to
each issue of Notes] the execution of the
Subscription Agreement
referred to below, agree
terms with a Dealer (which
expression in this Part II
includes any entity to be
appointed as a dealer under
the Subscription Agreement
referred to below) (the
"Lead Manager") for the
issue and purchase of Notes
to be subscribed pursuant to
a Subscription Agreement
(whether pursuant to an
unsolicited bid by such Lead
Manager or pursuant to an
enquiry by the Issuer). The
Lead Manager may invite
other Dealers (new or
additional) to join an
underwriting syndicate on
the basis of an invitation
telex agreed between the
Issuer and the Lead Manager
and on the terms of the
Pricing Supplement referred
to below and the
Subscription Agreement. The
Lead Manager and any such
Dealers are together
referred to as the
"Managers".
[to be agreed for The Issuer obtains, with the
each issue of Notes] assistance of the Lead
Manager, all necessary
governmental and regulatory
approvals and consents for
the issue of Notes and
delivers any such approvals
and consents to the Lead
Manager.
no later than Issue The Issuer and the Lead
Date minus 10 (or Manager agree a form of
such number of days Manager and the Pricing
agreed between the Supplement (substantially in
Issuer, the Lead) the form of Issuing and
Manager and the Paying Appendix 2 to the
Issuing and Paying Programme Agreement). A
Agent) draft Agent) Subscription
Agreement (substantially in
the and form of Appendix 4
to the Programme Agreement
or such other form as may be
agreed between the Issuer
and the Lead Manager) is
also
43
DAY LATEST TIME ACTION
- --- ----------- ------
prepared and agreed. The
Lead Manager sends a copy of
the draft Subscription
Agreement to any other
Manager at least two
business days before the
Subscription Agreement is
intended to be signed. At
the same time the Lead
Manager sends a copy of the
Information Memorandum and
Programme Agreement
(together with such other
items from the Initial
Documentation List as the
Lead Manager deems
appropriate) to any other
Manager which has not
previously received such
documents. The Subscription
Agreement and the Pricing
Supplement are agreed and
executed and copies of the
Subscription Agreement and
the Pricing Supplement are
sent by facsimile to the
Issuing and Paying Agent.
no later than Issue 3.00 p.m. In the case of non-fixed
Date minus 2 rate Notes, the Issuing and
Paying Agent notifies the
Issuer, the Lead Manager and
(in the case of Notes which
are to be listed) the
relevant Stock Exchange by
facsimile of the interest
rate for the first interest
period (if already
determined and notified to
the Issuing and Paying Agent
by the Agent Bank). Where
the interest rate has not
yet been determined, this
will be notified in
accordance with this
paragraph as soon as it has
been determined and notified
to the Issuing and Paying
Agent by the Agent Bank.
no later than Issue 5.00p.m. In the case of Notes which
Date minus 2 are to be listed, the
Issuing and Paying Agent
also notifies the relevant
Stock Exchange, or arranges
for the notification to the
relevant Stock Exchange by
the relevant listing agent,
by facsimile of details of
the Notes to be issued by
sending the Pricing
Supplement, once signed by
the Issuer, and received by
the Issuing and Paying
Agent.
44
DAY LATEST TIME ACTION
- --- ----------- ------
no later than Issue 2.00 p.m. In the case of Notes which
Date minus 1 are to be listed on the
SGX-ST, the Issuing and
Paying Agent sends three
copies of the Pricing
Supplement to the SGX-ST and
the Issuer pays the initial
listing fee to the SGX-ST.
no later than Issue 3.00 p.m. In the case where the Notes
Date minus 1 are to be accepted for
clearance by the Depository,
the Lead Manager provides
the Depository with a
provisional list of the
Securities Accounts of the
Depository Agents and the
direct Securities Account
holders which are to be
credited with the Notes,
specifying the names,
NRIC/Passport Numbers,
Securities Account Numbers,
DA Codes as well as the
aggregate principal amount
of the Notes to be credited
to the Securities Accounts.
no later than Issue 3.45 p.m. In the case where the Notes
Date minus 1 of any Tranche are initially
represented by a Global
Note, the Issuer executes
the Global Note for such
Tranche and delivers it to
the Issuing and Paying Agent
for authentication. The Lead
Manager instruct(s) its bank
to pay the subscription
price to such account of the
Issuer with such bank in the
principal financial centre
for the currency in which
the Notes are denominated as
the Issuer may have notified
to the Lead Manager for the
purpose.
Issue Date 2.00 p.m. In the case of Notes which
are to be accepted for
clearance by the Depository,
upon receipt of appropriate
documentation and
instructions from the Issuer
and verification thereof,
the Issuing and Paying Agent
completes and authenticates
a Global Note. Following
payment to the Issuer of the
subscription price in
immediately available and
freely transferable funds or
(as the case may be) same
day funds to such account as
the Issuer
45
DAY LATEST TIME ACTION
- --- ----------- ------
shall have notified to the
Lead Manager for the purpose
and, on the receipt of
confirmation from the Issuer
that it has received the
subscription price due to
it, the Issuing and Paying
Agent delivers the Global
Note to the Depository.
The Lead Manager delivers to
the Depository the final
list of the Securities
Accounts of the Depository
Agents and the direct
Securities Account holders
which are to be credited
with the Notes, specifying
the names, NRIC/Passport
Numbers, Securities Account
Numbers, DA Codes as well as
the aggregate principal
amount of the Notes to be
credited to the Securities
Accounts.
In the case of Notes which
are not to be accepted for
clearance by the Depository,
the Issuing and Paying Agent
completes and authenticates
a Global Note. Following
payment to the Issuer of the
subscription price in
immediately available and
freely transferable funds or
(as the case may be) same
day funds to such account as
the Issuer shall have
notified to the Lead Manager
for the purpose in the
Confirmation and, on the
receipt of confirmation from
the Issuer that it has
received the subscription
price due to it, the Issuing
and Paying Agent delivers
the Global Note to the Lead
Manager.
In any other cases, the
delivery of, and payment
for, Notes will be made in
the manner agreed between
the Issuer and the Lead
Manager.
On or subsequent to The Issuing and Paying Agent
the Issue Date notifies the Issuer of the
issue of Notes giving
details of the Temporary
Global Note or (as the case
may be) Permanent Global
Note and the principal
amount represented thereby.
</Table>
46
DAY LATEST TIME ACTION
- --- ----------- ------
In the case where the Notes
are not to be accepted for
clearance by the Depository
and are initially
represented by a Temporary
Global Note, the Lead
Manager procures the
preparation of Definitive
Notes.
The Issuing and Paying Agent
notifies the SGX-ST, in the
case of Notes which are to
be listed on the SGX-ST (and
in respect of which a copy
of the Pricing Supplement
has been delivered to the
SGX-ST), if the issue for
any reason does not proceed.
Within 10 working days The Issuer and the Lead
from the Issue Date Manager sign the Return on
(excluding Saturdays Debt Securities and the Lead
and Sundays) Manager submits a duly
completed Return on Debt
Securities in respect of the
Notes to the Monetary
Authority of Singapore and
the Inland Revenue Authority
of Singapore.
Explanatory Notes
(a) Each day is a day (other than Saturday or Sunday) on which commercial banks
are open for business in Singapore.
(b) The Issue Date must be a business day as defined in the Notes.
(c) Times given are approximate times for the taking of the action in question
and are references to Singapore time.
47
A N N E X B
FORM OF DEALER'S CONFIRMATION TO ISSUER FOR NON-SYNDICATED ISSUES
To: ST Assembly Test Services Ltd,
5, Yishun Street 23,
Singapore 768442.
[date]
Attention: [ ]
[N.B. - If the Relevant Dealer is not a Programme Dealer, the provisions of the
Dealer Accession Letter may be inserted here.]
Dear Sirs,
ST ASSEMBLY TEST SERVICES LTD
S$500,000,000 Multicurrency Medium Term Note Programme
We hereby confirm the agreement for the issue to us of Notes forming
part of the above Programme in accordance with the terms of the Programme
Agreement dated 10th January, 2002 (as amended, varied or supplemented from time
to time) and with the terms specified in the attached Pricing Supplement.
[Agree additional conditions precedent.]
Please confirm your agreement to the terms of issue by signing and
faxing to us a copy of the following Pricing Supplement (with the original to
follow). Please also fax a copy of the Pricing Supplement to the Issuing and
Paying Agent.
This letter is governed by, and shall be construed in accordance with,
the laws of Singapore.
Yours faithfully,
For and on behalf of
[Name of Dealer]
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
[attach Pricing Supplement]
48
A N N E X C
FORM OF ISSUER'S CONFIRMATION TO ISSUING AND PAYING AGENT AND DEALER
FOR NON-SYNDICATED ISSUES
To: [Name of Dealer] [date]
Attention: [ ]
cc: [Agent Bank, if not Dealer, and Issuing and Paying Agent]
cc: [Trustee]
Dear Sirs,
ST ASSEMBLY TEST SERVICES LTD
S$500,000,000 Multicurrency Medium Term Note Programme
Terms defined in the Procedures Memorandum (the "Procedures
Memorandum") have the same meanings herein.
We confirm our receipt of your telefax to us dated [Date] confirming
the terms agreed between us for the issue of Notes relating to the above
Programme. We confirm the accuracy of the details set out in the attached
Pricing Supplement signed by us, and hereby confirm our agreement to issue to
you Notes as set out in it.
We hereby confirm our telephone instruction to the Issuing and Paying
Agent to undertake the duties set out in Part I of Annex A of the Procedures
Memorandum, including to authenticate and deliver a [Temporary/Permanent] Global
Note as specified in the attached Pricing Supplement in accordance with the
terms of the Procedures Memorandum and the Agency Agreement relating to the
above Programme, subject to payment of the [net] purchase price.
Our account for settlement is [ ] with [ ].
Yours faithfully,
For and on behalf of
ST ASSEMBLY TEST SERVICES LTD
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
[attach signed Pricing Supplement]
49
A P P E N D I X 4
FORM OF SUBSCRIPTION AGREEMENT
DATED [ ]
ST ASSEMBLY TEST SERVICES LTD
as Issuer
- and -
[LEAD MANAGER]
- and -
OTHERS
---------------------------------------------------
SUBSCRIPTION AGREEMENT
relating to
[Brief Description and Amount of Notes]
issued by
ST ASSEMBLY TEST SERVICES LTD
as Series [ ] of its
S$500,000,000
Multicurrency Medium Term Note Programme
---------------------------------------------------
[ALLEN & GLEDHILL LOGO]
36 Robinson Road #18-01
City House
Singapore 068877
50
C O N T E N T S
CLAUSE TITLE PAGE
- ------ ----- ----
1. APPOINTMENT
2. ISSUE OF THE NOTES
3. STABILISATION
4. AGREEMENT BY THE MANAGERS
5. CONDITIONS PRECEDENT
6. CLOSING
7. EXPENSES
8. TERMINATION
9. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 2001
10. GOVERNING LAW
THE ANNEX - PRICING SUPPLEMENT
51
T H I S A G R E E M E N T is made on [ ] B E T W E E N:-
(1) ST ASSEMBLY TEST SERVICES LTD of [ ]
(the "Issuer"); and
(2) [LEAD MANAGER] (the "Lead Manager") and [OTHER MANAGERS] (together,
the "Managers").
W H E R E A S:-
(A) The Issuer proposes to issue [Brief Description and Amount of Notes]
(the "Notes", which expression, where the context so admits, shall include [the
Temporary Global Note/the Permanent Global Note/the Temporary Global Note and
the Permanent Global Note] to be delivered in respect thereof). Definitive Notes
will be in bearer form in the denomination of [ ] each with coupons attached.
(B) The Notes will be issued as Series [ ] of the S$500,000,000
Multicurrency Medium Term Note Programme established by the Issuer.
(C) This Agreement is supplemental to the Programme Agreement (as amended,
varied or supplemented, the "Programme Agreement") dated 10th January, 2002 made
between the Issuer, the Arranger and the Dealers party thereto.
1. APPOINTMENT
In accordance with Clause 14(A) of the Programme Agreement, the Issuer
appoints those of the Managers who are not Dealers (the "New Dealers") as
Dealers under the Programme Agreement for the purposes of the issue of the Notes
only and not for any other Tranche or Series under the Programme Agreement. Each
New Dealer accepts its appointment under the Programme Agreement and each such
New Dealer is hereby vested with all the authority, rights, powers, duties and
obligations of a Dealer under the Programme Agreement as if each New Dealer had
originally been named a Dealer in the Programme Agreement, as set out in Clause
14(A) thereof. This Agreement shall, in relation to each New Dealer, be deemed
to constitute such New Dealer's confirmation and agreement to perform and comply
with the duties and obligations assumed by it under the Programme Agreement on
the terms set out in this Agreement.
2. ISSUE OF THE NOTES
(A) Programme Agreement: The Notes will be issued pursuant to Clause 2(B)
of, and on the terms of Clauses 2 to 5 (excluding Clause 3(B)(8)), 10 and 15 of,
the Programme Agreement as modified by this Agreement. Unless otherwise defined
in this Agreement, terms defined in the Programme Agreement shall have the same
meanings in this Agreement. References in the Programme Agreement to Notes and
Dealer(s) shall be construed as references to the Notes and the Manager or
Managers, as the case may be, for the purposes of this Agreement.
(B) Agreement to Issue: Subject to the terms and conditions hereof, the
Issuer agrees to issue the Notes on [Issue Date] (the "Issue Date") or such
other date as the Issuer and the Lead Manager on behalf of the Managers may
agree (the "Closing Date"), to the Managers or as they may direct in accordance
with Clause 6. The Notes will be
52
issued at a price (the "Issue Price") equal to [[ ] per cent. of] their
principal amount [less [(i) a commission (the "Selling Commission") of [ ] per
cent. of such principal amount and (ii) a combined management and underwriting
commission of [ ] per cent. of such principal amount [plus accrued interest from
the Issue Date to the Closing Date]/(i) a selling commission and (ii) a combined
management and underwriting commission at the respective rates stated in a
letter of today's date from the Lead Manager to the Issuer and countersigned by
the Issuer]].
(C) The Notes: The Issuer will issue the Notes having the terms set out in
Schedule 1 to the Trust Deed as supplemented by the Pricing Supplement (the
"Pricing Supplement) dated the date of this Agreement (and annexed hereto)
relating to the Notes which the Issuer confirms it has prepared.
3. STABILISATION
The Lead Manager shall, subject to all applicable laws and
regulations, be the stabilising manager and may over-allot or effect
transactions which stabilise or maintain the market price of the Notes at a
level which might not otherwise prevail, but in doing so the Lead Manager shall
act as principal and not as agent of the Issuer. Such stabilising, if commenced,
may be discontinued at any time. Any loss resulting from over-allotment and
stabilisation shall be borne by the stabilising manager for its own account.
Nothing in this Agreement shall be construed so as to require the Issuer to
issue Notes in excess of $[principal amount] in aggregate principal amount.
4. AGREEMENT BY THE MANAGERS
(A) Subscription: The Managers [severally] [jointly and severally] agree
that they will subscribe for the Notes [set out against the names of the
respective Managers below] on the Closing Date, all on the terms set out in this
Agreement.
[ MANAGER PRINCIPAL AMOUNT OF NOTES
------- -------------------------
[ ] [ ]
[ ] [ ]
[ ] [ ]
---------------
[ ]
==============]
(B) IPMA: (1) The Managers agree as between themselves that they will be
bound by and will comply with the International Primary Market Association
Standard Form Agreement Among Managers version 1 [[(the "Agreement Among
Managers")] as amended [hereinafter] [in the manner set out in the invitation
facsimile dated [ ] with respect to the Notes] and further agree that references
in the Agreement Among Managers to the "Lead Manager" shall mean [ ].
(2) [The Managers agree as between themselves to amend the Agreement Among
Managers as follows:-
53
[ ]]
5. CONDITIONS PRECEDENT
(A) Programme Agreement: Clause 3(B) of the Programme Agreement shall
apply to the issue and subscription of the Notes [with the following
modifications].
(B) Further Conditions Precedent: The obligations of the Managers to
subscribe for the Notes are subject to the following conditions precedent:-
[(a) on or prior to the Closing Date, there having been delivered
to the Managers opinions, in form and substance satisfactory
to the Lead Manager, dated the Closing Date, of [ ] legal
advisers to the Issuer as to Singapore law and [details of
Managers' Singapore lawyers], if any;]
(b) at the Closing Date (i) the representations and warranties of
the Issuer herein being true, accurate and correct in all
material respects at, and as if made on, the Closing Date, and
(ii) the Issuer having performed all of its obligations
hereunder to be performed on or before the Closing Date except
to the extent to which failure to do so would not be material in
the context of the issue of the Notes and there having been
delivered to the Managers a certificate signed by a duly
authorised officer of the Issuer (acting on behalf of the
Issuer), dated the Closing Date, to such effect; and
(c) on or prior to the Closing Date, in the opinion of the Lead
Manager, none of the circumstances described in Clause 8(a), (b)
or (c) having arisen; [and
(d) state further conditions precedent, as agreed].
6. CLOSING
(A) Issue of Notes: At [ ] hours (Singapore time) (or such other time as
may be agreed between the Lead Manager, on behalf of the Managers, and the
Issuer) on the Closing Date, the Issuer will issue and deliver or procure to be
delivered to the Managers or their order in such place as the Lead Manager may
reasonably require a [Temporary/Permanent] Global Note representing the Notes
duly executed and authenticated.
(B) Payment: At [ ] hours (Singapore time) (or such other time as may be
agreed between the Lead Manager, on behalf of the Managers, and the Issuer) on
the Closing Date, the Managers will pay or cause to be paid to the Issuer the
[net] subscription moneys for the Notes (being the aggregate amount payable for
the Notes calculated at the Issue Price [less the commissions referred to in
Clause 2(B) and the amount payable to the Managers under Clause 7] [and plus the
accrued interest, if any]). [Such payment shall be made by the Managers, in
[specify currency], in [immediately available and freely transferable funds/same
day funds] so as to be received before 3.00 p.m. (local time in the principal
financial centre for the currency in which the Notes are
54
denominated) to the account of the Issuer [account number] with [name of bank in
[principal financial centre of the currency in which the Notes are
denominated]]].
7. EXPENSES
The Issuer will pay on the Closing Date to the Managers [(and
authorises the Managers to deduct such sum from the subscription moneys for the
Notes as provided in Clause 6(B))] S$[ ] in lieu of reimbursement of their legal
and other expenses incurred in connection with the issue of the Notes.
[Set out other agreement on expenses.]
8. TERMINATION
Notwithstanding anything contained in this Agreement, the Lead Manager
on behalf of the Managers may by notice to the Issuer terminate this Agreement
at any time prior to payment of the [net] subscription moneys for the Notes to
the Issuer in any of the following circumstances:-
(a) if there shall have come to the notice of the Managers any
material breach of, or any event rendering untrue or incorrect in
all material respects, any of the warranties and agreements
contained in Clause 4 of the Programme Agreement (or any deemed
repetition thereof) or any failure to perform any of the Issuer's
covenants, agreements or obligations contained in the Programme
Agreement and in this Agreement except to the extent to which
failure to do so would not be material in the context of the
issue of the Notes;
(b) if any of the conditions specified in Clause 5 has not been
satisfied or waived by the Lead Manager on behalf of the
Managers; or
(c) if, there shall have been:-
(i) any introduction or prospective introduction of, or any
change or prospective change in, or in the interpretation or
application of, any legislation, statute, regulation, order,
policy, directive, request or guideline (whether or not
having the force of law) by the Monetary Authority of
Singapore, the Securities Industry Council, the SGX-ST or
any other governmental or regulatory body in Singapore; or
(ii) any material adverse change or prospective material adverse
change in monetary, political (including, but not limited
to, changes by reason of military action), financial
(including, but not limited to, stock market conditions,
currency exchange conditions in any of the financial markets
and interest rates) or economic conditions in Singapore or
internationally (including changes or developments in stock,
bond, money and interest rate markets) or the occurrence of
55
any combination of any such changes, crises or developments,
in either case, as would in the opinion of the Lead Manager
(exercised in good faith):-
(1) materially and adversely prejudice or affect the success of
the placement, issue, offer, sale or distribution (whether
in the primary or secondary markets) of the Notes; or
(2) materially and adversely affect the listing of the Notes
(where applicable); or
(3) materially and adversely affect the business or financial
position of the Issuer or the Group,
and upon notice being given, the parties to this Agreement shall (except for the
liability of the Issuer in relation to expenses as provided under Clause 7 and
except for any liability arising before or in relation to such termination
pursuant to the Programme Agreement including Clauses 5 and 8 of the Programme
Agreement) be released and discharged from their respective obligations under
this Agreement.
9. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 2001
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Act 2001 to enforce any term of this
Agreement.
10. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with,
the laws of Singapore.
56
THE ANNEX
Pricing Supplement
[The relevant Pricing Supplement will be
annexed to the Subscription Agreement]
57
I N W I T N E S S W H E R E O F this Agreement has been entered into
on the date stated at the beginning.
The Issuer
ST ASSEMBLY TEST SERVICES LTD
<Table>
By: Witness:
-------------------------------------- ----------------------------
Name: Name:
------------------------------------ -------------------------------
Title: Address:
----------------------------------- ----------------------------
</Table>
The Managers
[LEAD MANAGER]
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[OTHER MANAGERS]
Each by its duly authorised attorney:
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
58
A P P E N D I X 5
VRN SCHEDULE
For the purpose of determining the Agreed Yield or, as the case may
be, the Rate of Interest payable from time to time in respect of each Variable
Rate Note for each Interest Period, not earlier than 9.00 a.m. (Singapore time)
on the ninth business day nor later than 3 p.m. (Singapore time) on the third
business day prior to the commencement of each Interest Period, the Issuer and
the Relevant Dealer shall endeavour to agree on the following:-
(1) whether interest in respect of such Variable Rate Note is to be
paid on the first day or the last day of such Interest Period;
(2) if interest in respect of such Variable Rate Note is agreed
between the Issuer and the Relevant Dealer to be paid on the
first day of such Interest Period, an Agreed Yield in respect of
such Variable Rate Note for such Interest Period (and, in the
event of the Issuer and the Relevant Dealer so agreeing on such
Agreed Yield, the Interest Amount for such Variable Rate Note for
such Interest Period shall be zero); and
(3) if interest in respect of such Variable Rate Note is agreed
between the Issuer and the Relevant Dealer to be paid on the last
day of such Interest Period, a Rate of Interest in respect of
such Variable Rate Note for such Interest Period (an "Agreed
Rate") and, in the event of the Issuer and the Relevant Dealer so
agreeing on an Agreed Rate, such Agreed Rate shall be the Rate of
Interest for such Variable Rate Note for such Interest Period.
59
A P P E N D I X 6
FORM OF CERTIFICATE OF NO MATERIAL ADVERSE CHANGE
To: [Name of Relevant Dealer(s)]
[Address]
[Date]
Dear Sirs,
ST ASSEMBLY TEST SERVICES LTD
S$500,000,000 Multicurrency Medium Term Note Programme
I, [name], [title] of ST Assembly Test Services Ltd (the "Issuer")
refer to the Programme Agreement (the "Programme Agreement") dated 10th January,
2002 made between (1) the Issuer, as issuer, (2) Citicorp Investment Bank
(Singapore) Limited, as arranger, and (3) Citicorp Investment Bank (Singapore)
Limited, as dealer, relating to the above-mentioned Programme and HEREBY CERTIFY
on behalf of the Issuer that, to the best of my knowledge and belief after
making due enquiries, (i) since the date of the most recent audited consolidated
accounts of the Group delivered to the Dealer pursuant to Clause 4(A)(13) of the
Programme Agreement, except as disclosed in the Information Memorandum or in any
public announcement of the Issuer made prior to the Agreement Date or as
disclosed to the Relevant Dealer prior to the Agreement Date, there has been, as
at the date hereof, no adverse change, or any development involving a
prospective adverse change, in the financial condition, business or results of
operations of the Issuer or the Group, taken as a whole, which is material in
the context of the issue and offering of the Notes, (ii) the Issuer's
representations and warranties set out in the Programme Agreement are true,
accurate, correct and complied with in all material respects on the date hereof
(as if such representations and warranties were repeated on the date hereof with
reference to the circumstances existing at the date hereof taking into account
the issue of the Notes) and (iii) the Issuer has performed all of its covenants,
agreements or obligations under the Programme Agreement to be performed on or
prior to the date hereof (other than any obligations that may be waived by the
Relevant Dealers) except to the extent to which failure to do so would not be
material in the context of the issue of the Notes.
Terms defined and references construed in the Programme Agreement
shall bear the same meanings and construction in this Certificate.
Yours faithfully,
For and on behalf of
ST ASSEMBLY TEST SERVICES LTD
60
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
61
A P P E N D I X 7
SELLING RESTRICTIONS
1. United States: (1) The Notes have not been and will not be registered
under the Securities Act, and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons except in
accordance with Regulation S under the Securities Act or pursuant to an
exemption from the registration requirements of the Securities Act. Each Dealer
represents and agrees that it has offered and sold any Notes, and will offer and
sell any Notes (a) as part of their distribution at any time and (b) otherwise
until 40 days after the completion of the distribution of all Notes of the
Series of which such Notes are a part, as determined and notified by the Issuing
and Paying Agent to such Dealer, as provided below, only in accordance with Rule
903 of Regulation S under the Securities Act. Accordingly, each Dealer further
represents and agrees that neither it nor its affiliates nor any person acting
on its or their behalf have engaged nor will engage in any directed selling
efforts with respect to the Notes and it and they have complied and will comply
with the offering restrictions requirement of Regulation S under the Securities
Act. Each Dealer who has purchased Notes of a Series (or in the case of a sale
of a Series of Notes issued to or through more than one Dealer, each of such
Dealers as to the Notes of such Series purchased by or through it or, in the
case of a syndicated issue, the relevant Lead Manager) shall determine and
notify to the Issuing and Paying Agent the completion of the distribution of the
Notes of such Series. On the basis of such notification or notifications, the
Issuing and Paying Agent will notify such Dealer or, as the case may be, such
Lead Manager of the end of the distribution compliance period with respect to
such Series. Each Dealer also agrees that, at or prior to confirmation of sale
of Notes, it will have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases Notes from it
during the distribution compliance period a confirmation or notice to
substantially the following effect:-
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), and may not
be offered or sold within the United States or to, or for the account
or benefit of, U.S. persons (i) as part of their distribution at any
time or (ii) otherwise until 40 days after the completion of the
distribution of the Securities as determined and certified by the
relevant Dealer, in the case of a non-syndicated issue or the Lead
Manager, in the case of a syndicated issue, except in either case in
accordance with Regulation S under the Securities Act. Terms used
above have the meanings given to them by Regulation S under the
Securities Act."
Terms used in this sub-paragraph (1) have the meanings given to them by
Regulation S under the Securities Act.
(2) In addition, under U.S. Treas. Reg. 1.163-5(c)(2)(i)(C) (the
"C Rules"), Notes in bearer form must be issued and delivered outside the United
States and its possessions in connection with their original issuance. In
relation to each such Tranche, each Dealer represents and agrees that it has not
offered, sold or delivered, and shall not offer, sell or deliver, directly or
indirectly, Notes in bearer form within the United States or
62
its possessions in connection with their original issuance. Further, in
connection with its original issuance of Notes in bearer form, it has not
communicated, and shall not communicate, directly or indirectly, with a
prospective purchaser if either such purchaser or it is within the United States
or its possessions or otherwise involve its U.S. office in the offer or sale of
Notes in bearer form. Terms used in this paragraph have the meanings given to
them by the U.S. Internal Revenue Code and regulations thereunder, including the
C Rules.
(3) In addition,
(a) except to the extent permitted under U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D) (the "D Rules"), (i) each Dealer represents
that it has not offered or sold, and agrees that it during the
distribution compliance period will not offer or sell, Notes to a
person who is within the United States or its possessions or to a
United States person, and (ii) each Dealer represents that it has
not delivered and agrees that it will not deliver within the
United States or its possessions Notes that are sold during the
distribution compliance period;
(b) each Dealer represents and agrees that it has and throughout the
distribution compliance period will have in effect procedures
reasonably designed to ensure that its employees or agents who
are directly engaged in selling Notes are aware that such Notes
may not be offered or sold during the distribution compliance
period to a person who is within the United States or its
possessions or to a United States person, except as permitted by
the D Rules;
(c) if the Dealer is a United States person, it represents that it is
acquiring the Notes for purposes of resale in connection with
their original issuance and if it retains Notes for its own
account, it will only do so in accordance with the requirements
of U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6); and
(d) with respect to each affiliate that acquires Notes from a Dealer
for the purpose of offering or selling such Notes during the
distribution compliance period, the Dealer agrees that it will
obtain from such affiliate for the Issuer's benefit the
representations and agreements contained in sub-paragraphs (a),
(b) and (c) above; and
(e) each Dealer agrees that it will obtain from any distributor
(within the meaning of U.S. Treas. Reg. Section
1.163-5(c)(20(i)(D)(4)(ii)) that purchases any Notes from it
pursuant to a written contract with such Dealer (except a
distributor that is one of its affiliates or is another Dealer),
for the benefit of the relevant Issuer and each other Dealer, the
representations contained in, and such distributor' agreement to
comply with, the provisions of sub-clauses(a), (b), (c) and (d)
of this paragraph insofar as they relate to the D rules, as if
such distributor were a Dealer hereunder.
63
Terms used in this sub-paragraph (3) have the meanings given to them by the U.S.
Internal Revenue Code and regulations thereunder, including the D Rules.
Notes will be issued in accordance with the provisions of the D Rules, unless
the Pricing Supplement specifies that Notes will be issued in accordance with
the provisions of the C Rules.
2. Singapore: Each Dealer acknowledges that (1) the Information
Memorandum has not been registered as a prospectus with the Registrar of
Companies and Businesses in Singapore but has been lodged as an information
memorandum with the Registrar of Companies and Businesses in Singapore for the
purposes of Section 106D of the Companies Act, Chapter 50 of Singapore (the
"Companies Act") and (2) the Notes will be issued in Singapore pursuant to
exemptions invoked under Section 106C and/or Section 106D of the Companies Act.
Accordingly, each Dealer represents and agrees that (a) in relation to Notes
which are not listed or quoted on the SGX-ST or a recognised stock exchange
within the meaning of the Companies Act, it will not offer or sell such Notes
nor will it circulate or distribute the Information Memorandum or any other
offering document or material relating to such Notes, directly or indirectly, to
the public or any member of the public in Singapore other than (i) to an
institutional investor or other person specified in Section 106C of the
Companies Act, (ii) to a sophisticated investor, and in accordance with the
conditions, specified in Section 106D of the Companies Act or (iii) otherwise
pursuant to, and in accordance with the conditions of, any other applicable
provision of the Companies Act and (b) in relation to Notes which are listed or
quoted on the SGX-ST or a recognised stock exchange (the "Listed Notes"), until
the date falling six months from the date of issue of the relevant Listed Notes
(the "Expiry Date"), it will not offer or sell such Listed Notes nor will it
circulate or distribute the Information Memorandum or any other offering
document or material relating to such Listed Notes, directly or indirectly, to
the public or any member of the public in Singapore other than (i) to an
institutional investor or other person specified in Section 106C of the
Companies Act, (ii) to a sophisticated investor, and in accordance with the
conditions, specified in Section 106D of the Companies Act or (iii) otherwise
pursuant to, and in accordance with the conditions of, any other applicable
provision of the Companies Act. After the Expiry Date, such Listed Notes may be
offered or sold to the public or any member of the public in Singapore provided
that they continue to be listed or quoted on the SGX-ST or such recognised stock
exchange.
3. General: The selling restrictions herein contained may be modified,
varied or amended from time to time by notification from the Issuer to the
Dealers and each Dealer undertakes that it will at all times comply with all
such selling restrictions.
Each Dealer understands that no action has been taken in any
jurisdiction that would permit a public offering of any of the Notes, or
possession or distribution of the Information Memorandum or any other document
or any Pricing Supplement, in any country or jurisdiction where action for that
purpose is required.
Each Dealer will comply with all laws, regulations and directives in
each jurisdiction in which it purchases, offers, sells or delivers Notes or any
interest therein or rights in respect thereof or has in its possession or
distributes, any other document or any Pricing Supplement. No Dealer will
directly or indirectly offer, sell or deliver Notes or any interest therein or
rights in respect thereof or distribute or publish any prospectus, circular,
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advertisement or other offering material (including, without limitation, the
Information Memorandum) in any country or jurisdiction except under
circumstances that will result in compliance with any applicable laws and
regulations, and all offers, sales and deliveries of Notes or any interest
therein or rights in respect thereof by it will be made on the foregoing terms.
In connection with the offer, sale or delivery by any Dealer of any Notes or any
interest therein or rights in respect thereof, the Issuer shall not have
responsibility for, and each Dealer will obtain, any consent, approval or
permission required in and each Dealer will comply with the laws and regulations
in force in, any jurisdiction to which it is subject or from which it may make
any such offer or sale.
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A P P E N D I X 8
FORM OF DEALER ACCESSION LETTER
To: ST Assembly Test Services Ltd,
5, Yishun Street, 23,
Singapore 768442.
Attention: [ ]
[Date]
Dear Sirs,
ST ASSEMBLY TEST SERVICES LTD (the "Issuer")
S$500,000,000 Multicurrency Medium Term Note Programme
We refer to the Programme Agreement dated 10th January, 2002 entered
into in respect of the above S$500,000,000 Multicurrency Medium Term Note
Programme (the "Programme") and made between the Issuer, the Arranger and the
Dealers party thereto (which agreement, as amended, varied or supplemented from
time to time, is herein referred to as the "Agreement"). Terms defined in the
Agreement shall have the same meaning in this letter.
Conditions Precedent
We confirm that we are in receipt of the following documents:-
(a) a copy of the Agreement;
(b) a copy of all documents referred to in the Initial Documentation
List [as we have requested] (and any such document not received
by us by the date of this letter shall be deemed to have been
waived by us);
(c) a copy of the most recent Information Memorandum; and
(d) a side letter in a form approved by ourselves from the legal
advisers referred to in paragraph 5 of the Initial Documentation
List addressed to ourselves and giving us the full benefit of the
existing legal opinions (except where any such opinion is
expressed to be given in favour of all future Dealers),
and have found them to our satisfaction.
For the purpose of the Agreement, our notice details are as follows:-
(insert name, address, telephone, fax and attention).
66
We confirm our agreement with you that, as from [date from which
appointment of Programme Dealer is to take effect/date on or prior to the
Agreement Date of the relevant Tranche], we have become a [Programme] Dealer [in
respect of [describe Tranche and Series]]* in accordance with the terms of
Clause 14(A) of the Agreement.
This letter is governed by, and shall be construed in accordance with,
the laws of Singapore.
Please confirm your acceptance of the terms of this letter by
countersigning it below and returning an original to us.
Yours faithfully,
For and on behalf of
[NAME OF NEW DEALER]
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
- --------------------------------------------------------------------------------
To: [Name of New Dealer]
We confirm the terms of the above letter.
Yours faithfully,
For and on behalf of
ST ASSEMBLY TEST SERVICES LTD
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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cc: Citicorp Investment Bank (Singapore) Limited (as Issuing and Paying Agent)
cc: British and Malayan Trustees Limited (as Trustee)
* Not applicable to Programme Dealers.
NB. The text of this letter may be included in the confirmation telex, fax or
letter sent from a Dealer-for-a-Day for a Non-Syndicated Issue to the
Issuer.
68
A P P E N D I X 9
FORM OF LETTER FROM ISSUER
ON AN INCREASE IN THE PROGRAMME LIMIT
To: The Arranger, the Issuing and Paying Agent,
the Agent Bank, the Trustee
and the Programme Dealers (as those expressions are
defined in the Agreement defined below)
[Date]
Dear Sirs,
ST ASSEMBLY TEST SERVICES LTD (the "Issuer")
S$500,000,000 Multicurrency Medium Term Note Programme
We refer to the Programme Agreement dated 10th January, 2002 entered
into in respect of the above S$500,000,000 Multicurrency Medium Term Note
Programme (the "Programme") and made between the Issuer, the Arranger and the
Dealers party thereto (which agreement, as amended, varied or supplemented from
time to time, is herein referred to as the "Agreement"). Terms defined in the
Agreement shall have the same meaning in this letter.
We hereby notify you, pursuant to Clause 16 of the Agreement, that the
Programme Limit will be increased to S$[ ] (or its equivalent in other
currencies) from [date].
We would like to draw your attention to Clause 16(A) of the Agreement,
under which increase shall (subject as set out below) take effect from [date],
whereupon all references in the Contracts and the Procedures Memorandum will be
deemed amended accordingly. We understand that this increase is subject to the
satisfaction of the conditions set out in Clause 16(B) of the Agreement.
Yours faithfully,
For and on behalf of
ST ASSEMBLY TEST SERVICES LTD
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
69
I N W I T N E S S W H E R E O F this Agreement has been entered into
on the date stated at the beginning.
The Issuer
ST ASSEMBLY TEST SERVICES LTD
By: sd. HARRY H DAVOODY Witness: sd. LEONG FANG YUN
--------------------------------------- ---------------------------
Name: HARRY H DAVOODY Name: LEONG FANG YUN
------------------------------------- ------------------------------
Title: DIRECTOR Title: SOLICITOR
------------------------------------ -----------------------------
The Arranger
CITICORP INVESTMENT BANK (SINGAPORE) LIMITED
By: sd. RONALD LOW
---------------------------------------
Name: RONALD LOW
-------------------------------------
Title: MANAGING DIRECTOR
------------------------------------
The Dealer
CITICORP INVESTMENT BANK (SINGAPORE) LIMITED
By: sd. RONALD LOW
---------------------------------------
Name: RONALD LOW
-------------------------------------
Title: MANAGING DIRECTOR
------------------------------------
70