EXHIBIT 4.16
EXECUTION COPY
This Agreement is dated the 20th day of June 2003
BETWEEN
ST ASSEMBLY TEST SERVICES LTD
AND
SIMMTECH CO. LTD
-----------------------------------
STRATEGIC ASSISTANCE LOAN AGREEMENT
-----------------------------------
C:\Simmtech\StrategicAssistanceLoanAgreement
ST Assembly Test Services Ltd
5 Yishun Street 23
Singapore 768442
THIS AGREEMENT is made on June 20, 2003.
BETWEEN:
1. ST ASSEMBLY TEST SERVICES LTD, a company incorporated under the law of
Singapore and having a place of business at 5 Yishun Street 23, Singapore
768442 ("STATS")
2. SIMMTECH CO. LTD, a corporation organized and existing under the laws of
Korea and having its principal place of business at 70-5 Songjung-Dong,
Heung Duk-Ku, Choungju, Chungchongbuk-do, Korea 361-290 ("SIMMTECH")
WHEREAS:
Simmtech has requested STATS and STATS has agreed to grant a loan amounting to
United States Dollars Five Million only (US$5,000,000.00) on the terms and
conditions hereinafter set out for the purposes of Simmtech's acquisition of
equipment and machinery to support STATS's service requirements under the spirit
of mutual strategic engagement.
NOW IT IS HEREBY AGREED as follows:
1 DEFINITIONS
1.1 In this Agreement, unless the context otherwise requires, the following
words shall have the following meanings:-
"Agreement Term" means the period commencing from the Loan Date and ending
on the Loan Repayment Date;
"Banking Day" means a day on which banks are open for business in Seoul,
Korea.
"Capacity Commitment" means Simmtech's provision to STATS of the type and
quantity of equipment, substrates, materials, labour and other supplies
required by STATS to enable STATS to package and produce for STATS's
customers not less than five hundred thousand (500,000) PBGA packages and
five million (5,000,000) stPBGA packages per month;
"Equipment" means the Existing Equipment, the Equipment to be Owned and the
Equipment to be Purchased;
"Existing Equipment" means the machinery and equipment listed in the
Machine List attached hereto as Annex A which represents the equipment to
which Simmtech has legal ownership as of the date thereof;
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"Equipment to be Owned" means the machinery and equipment listed in the
Machine List attached hereto as Annex B, which represents the equipment to
which Simmtech has executed a purchase agreement but will not have legal
ownership until the Loan Date;
"Equipment to Be Purchased" means the machinery and equipment listed in the
Machine List attached hereto as Annex C, which represents the equipment to
be purchased by Simmtech following the Loan Date;
"Loan" means a sum of United States Dollars Five Million only
(US$5,000,000.00) loaned to Simmtech under this Agreement, which is to be
repaid in full to STATS;
"Loan Date" means June 23, 2003;
"Loan Repayment Date" means the date when the Loan is repaid in full, being
a date not later than 1st July 2007;
"Lead-Time" means the length of time for goods or services purchased by
STATS to be delivered to STATS;
"Repayment Dates" mean the date falling one year after the Loan Date (i.e.,
(on June 23, 2004) and the first day of each subsequent three (3) month
period thereafter during the Agreement Term, provided that any Repayment
Date falling after 1st July 2007 shall be accelerated to fall on 1st July
2007;
"Security Documents" means the YT Agreement and the Share Pledge Agreement,
each duly executed and signed by authorized signatories of Simmtech and
STATS and in the form required by STATS;
"Share Pledge Agreement" means the Agreement for the pledge of Shares dated
as of the date hereof between Simmtech (as pledgor) and STATS (as pledgee)
whereby Simmtech pledged the Shares to STATS to secure its obligations
under this Agreement and the Security Documents.
"Shares" means the Seven Hundred Thousand (700,000) common shares of
Simmtech which are pledged to STATS under the Share Pledge Agreement; and
"YT Agreement" means the Yangdo Tambo Agreement dated as of the date hereof
between Simmtech (as transferor) and STATS (as transferee) whereby Simmtech
transferred title over certain property described therein to STATS for the
purpose of securing its obligations under this Agreement and the Security
Documents.
1.2 The headings to the Clauses hereof shall not be deemed to be a part thereof
or be taken in consideration in the interpretation or construction thereof
or of this Agreement.
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2 LOAN
2.1 Subject to Section 3 below, STATS will provide a Loan to Simmtech on the
Loan Date for the purposes and on the terms and conditions specified
herein.
2.2 In consideration of STATS's execution of this Agreement, Simmtech commits
and undertakes, as a minimum service guarantee for STATS, to comply with
the Capacity Commitment at Lead Times not exceeding three weeks from the
date of each of STATS's purchase order and pricing which is at least equal
to or lower than the price charged to STATS at the date of execution of
this Agreement for equivalent items or services, unless otherwise agreed by
the parties. Simmtech further agrees to provide prompt support for new
product samples and to develop new products according to a technology
roadmap aligned with STATS's service requirements.
3. CONDITIONS PRECEDENT
3.1 The obligation of STATS to provide the Loan to Simmtech under Section 2
above is subject to the fulfillment, as reasonably determined by STATS, of
the following conditions precedent on or 1 business day prior to the Loan
Date (unless otherwise waived by STATS in its absolute discretion):
(a) A certified copy of the most recent Articles of Incorporation and
company registry of Simmtech;
(b) A duly authenticated copy of the minutes of the board of directors'
meeting of Simmtech at which resolutions authorizing the execution,
delivery and performance of this Agreement and the Security Documents,
including but not limited to incurring the debt obligations hereunder
and providing the collateral as contemplated under the Security
Documents, and authorizing the person(s) who signed, or will sign,
this Agreement, the Security Documents or all other documents in
connection thereto on Simmtech's behalf to do so, were adopted and any
power of attorney executed in connection therewith;
(c) Seal certificate of the Representative Director of Simmtech and
specimen signature of the person(s) authorized to execute this
Agreement, the Security Documents and all other documents in
connection therewith;
(d) The executed Security Documents duly signed by the authorized
person(s) on behalf of Simmtech;
(e) Certified copies of each approval of any governmental authority of
Korea necessary or advisable in connection with the execution,
delivery and performance of this Agreement or the provision of the
collateral contemplated under the Security Documents, in form and
substance satisfactory to STATS and its legal counsel, including but
not limited to the relevant foreign exchange reporting/approval
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requirements set forth in the Foreign Exchange Transaction Law (and
regulations thereunder);
(f) Evidence as may be reasonably requested by STATS and its legal counsel
that all obligations of STATS under the YT Agreement shall be
satisfied prior to or simultaneously with the provision of the Loan on
the Loan Date, including but not limited to (i) satisfaction of
relevant foreign exchange reporting/approval requirement; (ii) the
placement of a plaque or sign on Existing Equipment, Equipment to be
Owned and Equipment to be Purchased stating STATS' title and interest
thereon and (iii) maintenance of adequate insurance over the Existing
Equipment, Equipment to be Owned and Equipment to be Purchased as
provided in the YT Agreement;
(g) Evidence as may be reasonably requested by STATS and its legal counsel
that all obligations of STATS under the Share Pledge Agreement shall
be satisfied prior to or simultaneously with the provision of the Loan
on the Loan Date, including but not limited to (i) registration of
STATS' security interest over the Shares in Simmtech's shareholders'
registry, (ii) delivery of the share certificates representing the
Shares to STATS or its agent and (iii) satisfaction of relevant
foreign exchange reporting/approval requirements, as provided in the
Share Pledge Agreement;
(h) A certified copy of any contracts or documents with respect to the
Existing Equipment and Equipment to Be Owned; and
(i) Such other documents that STATS may reasonable request.
3.2 Unless otherwise waived by STATS, failure to comply with any of the
foregoing conditions precedent shall constitute an Event of Default under
Section 8 hereunder, and STATS shall have no obligation to provide the Loan
on the Loan Date.
4 USE OF LOAN PROCEEDS
Subject to repayment of the Loan in full on Repayment Dates falling due,
Simmtech shall be entitled to use the Loan monies solely for the purpose of
acquiring the Equipment for its ordinary business purpose, including to
render services to STATS in performance of the Capacity Commitment.
Simmtech agrees between the Loan Date and December 31, 2003, to use the
Loan (or necessary portion thereof) to purchase the Equipment to be Owned
and Equipment to be Purchased, and, without delay, to provide STATS with
evidence satisfactory to STATS or its legal counsel of the purchase of the
Equipment to be Owned and Equipment to be Purchased. Immediately after
Simmtech takes legal title to the Equipment to be Owned and Equipment to be
Purchased, Simmtech shall take all necessary action so that the Equipment
to be Owned and Equipment to be Purchased will be subject to the YT
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Agreement, and Section 3.1(f) above shall be satisfied with respect to such
Equipment to be Owned and Equipment to be Purchased.
5 REPAYMENT
5.1 Subject to Section 5.2 below, on each Repayment Date, Simmtech shall repay
a portion of the Loan in the amount of United States Dollars Four Hundred
and Fifty Thousand only (US$450,000.00), provided that, on the final
Repayment Date, the amount of the repayment shall be United States Dollars
Fifty Thousand only (US$ 50,000), provided further that, the full amount of
the Loan shall be repaid by 1st July 2007.
5.2 If a Repayment Date (and/or July 1, 2007) does not fall on a Banking Day,
such payment in respect of that Repayment Date shall be made on the
immediately succeeding Banking Day.
5.3 In the event of default on a repayment by Simmtech on the due Repayment
Date, STATS shall without prejudice to its other rights and remedies under
this Agreement and Security Documents or otherwise, be entitled to charge
interest of 1% per annum on the amount which is in default, chargeable from
the due Repayment Date until such outstanding amount is paid in full.
6. WARRANTIES AND REPRESENTATIONS
6.1 Simmtech hereby warrants and represents to STATS as follows:-
(a) that it is lawfully incorporated, validly existing and in good
standing under the laws of the Republic of Korea;
(b) that it has the corporate power and authority to carry on the business
as now being conducted;
(c) that it has the corporate power to execute and perform this Agreement;
(d) that the execution, delivery and performance of this Agreement and the
transaction hereunder have been duly authorised by all requisite
corporate action and will not violate any provision of any agreement
or other instrument to which Simmtech is a party;
(e) save as disclosed to STATS, there has been no material adverse change
in the business activities operations or financial condition of
Simmtech since the latest audited accounts;
(f) save as otherwise disclosed to STATS, there are no actions, suits or
proceedings pending or, to the knowledge of Simmtech, threatened
against Simmtech or any of its subsidiaries, at law or in equity
before any court or competent body adjudicating such matters, which
involve the possibility of any judgment or liability which may result
in any
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material adverse change in the business, operations, properties or
assets, or in the condition, financial or otherwise of Simmtech or its
parent or any of its subsidiaries; and
(g) that to the best of the knowledge of Simmtech no steps have been taken
or are being taken to appoint a receiver and/or manager or judicial
manager or liquidator or any other person over it or any of its assets
or in any winding up action.
6.2 Each of the warranties and representations contained in the preceding
sub-clause shall survive and continue to have full force and effect after
the execution of this Agreement for the Agreement Term.
7. UNDERTAKING
7.1 Simmtech hereby undertakes and agrees with STATS, for as long as the Loan
has not been repaid in full, as follows:-
(a) that the Loan shall be used solely for the purpose and in the manner
herein before stipulated and not for any other purpose or manner;
(b) that it will carry on and conduct its business and affairs with due
diligence and efficiency in accordance with sound technical financial
industrial and managerial standards and practices and pay all taxes as
they fall due;
(c) that it will keep the Equipment in good and substantial repair and
proper working condition to the satisfaction of STATS;
(d) that it shall give to STATS such written authorization or directions
and provide such facilities and access as STATS may require for the
inspection of the Equipment; and
(e) that it will not sell, assign, transfer, pledge, mortgage, encumber or
dispose of (or attempt or purport to do any of the foregoing) any of
the Equipment or Shares nor do, or fail to do, anything whereby
STATS's rights in respect of the Equipment or Shares or their
respective value may be diminished; shall notify STATS if Simmtech
becomes aware of any diminution in the rights attaching to, or the
value of, the same or any circumstances whereby such rights or such
value may be diminished.
7.2 Simmtech hereby undertakes and agrees with STATS that it shall not create
or permit to arise or subsist, any mortgage, charge (whether fixed or
floating), pledge, lien or other encumbrances whatsoever on the Equipment.
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8 EVENTS OF DEFAULT
8.1 If any one or more of the following Events of Defaults shall occur, that is
to say:
(a) if Simmtech shall fail to repay when due any sums of money payable
under this Agreement and Security Documents and such default shall not
be rectified for a period of three (3) Banking Days after the date of
receipt by SimmTech of written notice of such default from STATS;
(b) if any representation or warranty made in or in pursuance of this
Agreement, Security Documents or in any certificate, statement or
other document delivered in connection with the execution and delivery
hereof or in pursuance of this Agreement shall be or become incorrect
in any material respect;
(c) if Simmtech defaults in the due performance of any undertaking,
condition or obligation on its part to be performed and observed under
this Agreement or Security Documents (other than the payment of any
sum due hereunder) and such default (if capable of being rectified)
shall not be rectified for a period of thirty (30) Days after the date
of receipt by Simmtech of written notice of such default from STATS;
(d) if a petition is presented in any court of competent jurisdiction or a
resolution is passed for the winding-up of Simmtech or for the filing
or any application for placing Simmtech under judicial management or
any similar or analogous proceedings are taken against Simmtech and
are not withdrawn within thirty (30) Days after being presented;
(e) if any encumbrancer or lessor shall take possession or a receiver
and/or manager, judicial manager, liquidator or other similar officer
is appointed of the whole of the undertaking, property or assets, or
any part thereof, of Simmtech or if a distress or execution is levied
or enforced upon or sued out against any part of the property or
assets of Simmtech and is not discharged within thirty (30) Days of
being levied and STATS is of the reasonable opinion that such an event
will be materially prejudicial to the interests of STATS;
(f) if a judgement or order is made against Simmtech and is not discharged
within sixty (60) Days and STATS is in that case of the reasonable
opinion that the said judgement will materially affect Simmtech's
ability to perform and observe its obligations under this Agreement;
(g) if a winding-up petition is presented by or against Simmtech or
analogous proceedings shall be taken by or against it and is not
discharged within thirty (30) Days after being presented or if
Simmtech becomes insolvent or is unable or deemed unable to pay its
debts or admits in writing its inability to pay its debts, as they
mature, or enters into reorganization, composition, corporate
restructuring,
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compromise or arrangement with its creditors or makes a general
assignment for the benefit of its creditors and STATS is of the
opinion that any such event will be materially prejudicial to the
interests of STATS; and
(h) if Simmtech ceases or threatens to cease to carry on its business or a
situation shall have arisen, which shall make it improbable that
Simmtech will be able to perform its obligations under this Agreement;
then and in any of such event, STATS may, by notice in writing to Simmtech
declare that an Event of Default has occurred and such declaration shall be
deemed to take effect from the date of such an Event of Default.
8.2 Upon the declaration by STATS that an Event of Default has occurred (by
sending notification to Simmtech of such declaration pursuant to Section
9):-
(a) the whole of the Loan which has not yet been repaid and all other sums
agreed to be paid under this Agreement shall immediately become due
and payable without any demand or notice of any kind by STATS to
Simmtech; and
(b) STATS shall be entitled to exercise all or any rights, powers or
remedies under this Agreement, the Security Documents or any one or
more of them.
9. NOTICES
9.1 Except as otherwise expressly provided herein, any notice, request, demand
or other communication to be given or served hereunder by one of the
parties hereto to or on the others may be delivered at or sent by prepaid
registered post or by facsimile to the address or addresses herein
specified of the other party or parties and shall be deemed to b duly
served:
(a) if it is delivered, at the time of delivery;
(b) if it is sent by prepaid registered post, one (1) day after posting
thereof, or
(c) if it is sent by facsimile, immediately after transmission thereof, if
the date of transmission is a working day, and if such a date is not a
working day, then the notice by facsimile shall be deemed to be served
on the immediately next succeeding working day.
Except as otherwise expressly provided herein, all notices, requests,
demands or other communications which are required by this Agreement to be
in writing may be made by facsimile.
9.2 For the purpose of this Clause 9 each of the parties hereto shall from time
to time notify the other party in writing of an address where such notice,
request, demand or other communication as aforesaid can be given or served
and such
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notification shall be effective only when it is actually received. In the
absence of such notification, the notice, request, demand or other
communication aforesaid may be given or served to the concerned party as
stated below.
To: ST Assembly Test Services Ltd
5 Yishun Street 23
Singapore 768442
Attention: Director, Legal
DID: 65 6824 1948
Fax: 65 822 7837
To: SimmTech Co. Ltd
70-5 Songjung-Dong
Hueng Duk-Ku
Choungju, Chungchongbuk-Do
Korea
Attention: Chief Marketing Officer
DID: 82-43-269 9280
Fax: 82-43-269 9048
10. WAIVER NOT TO PREJUDICE RIGHT OF STATS
No neglect or forbearance of STATS to require and enforce payment of any
moneys hereunder or the performance and observance of any undertaking
stipulation term or condition herein contained, nor any time which may be
given to Simmtech shall in any way prejudice or affect any of the rights,
power or remedies of STATS at any time afterwards to act strictly in
accordance with the provisions hereof. No such waiver of any such breach as
aforesaid shall prejudice the rights of STATS in respect of any other or
subsequent breach of any of the undertakings stipulations terms or
conditions aforesaid.
11. SEVERABILITY
In case any provision in this Agreement shall be, or at any time shall
become invalid, illegal or unenforceable in any respect under any law, such
invalidity, illegality or unenforceability shall not in any way affect or
impair the other provisions of this Agreement but this Agreement shall be
construed as if such invalid or illegal or unenforceable provision
contained herein or therein did not from a part of this Agreement.
12. GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement shall be governed by and construed in all respects in
accordance with the laws of the Republic of Singapore.
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Any dispute arising out of or in connection with this Agreement, including
any questions regarding its existence, validity or termination, shall be
referred to and finally resolved by arbitration in Singapore in accordance
with the Arbitration Rules of the Singapore International Arbitration
Centre for the time being in force which rules are deemed to be
incorporated by reference to this Section 12.
13. MISCELLANEOUS
13.1 Legal and other professional fees, out-of-pocket expenses, charges and
expenses of and in connection with this Agreement and the Security
Documents incurred by either party, including STATS up to an amount not
exceeding USD10,000 ("Fee Cap") shall be paid by Simmtech, except that this
Fee Cap shall not apply to expenses and charges that are incurred as a
result of STATS' decision to not make the Loan on the Loan Date due to
Simmtech's failure to fulfill its obligations under this Agreement.
13.2 Simmtech shall further pay all legal fees as between solicitor and client
and other costs and disbursements incurred in connection with or demanding
and enforcing payment of moneys due under this Agreement and the Security
Documents and otherwise howsoever in enforcing the performance of any other
undertakings stipulations terms conditions or provisions of hereof and
thereof.
13.3 This Agreement shall be binding upon the successors of Simmtech and shall
enure to the benefit of STATS and its successors and assigns.
13.4 This Agreement may be executed by each of the parties hereto in any number
of counterparts, and by each party hereto on separate counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be
an original, but all such counterparts shall together constitute but one
and the same instrument.
SIGNATURE PAGE TO FOLLOW
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IN WITNESS WHEREOF the parties hereto have executed this Agreement on the date
stated above.
ST ASSEMBLY TEST SERVICES LTD
By: /s/ Mr. Tan Lay Koon
-------------------------
Name: Mr. Tan Lay Koon
Title: President and CEO
In the presence of: /s/ Suh Tae Suk
----------------------
SIMMTECH CO. LTD
By: /s/ Se-Ho Chun
-------------------------
Name:
Title: Representative Director
In the presence of: /s/ C. H. Oh
----------------------
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ANNEX A
DESCRIPTION OF EXISTING EQUIPMENT
- -----------------------------------------------------------------------------------------
MACHINERY SUPPLIER CURRENCY AMOUNT (US$) OADER/LC DATE
- -----------------------------------------------------------------------------------------
D/F LAMINATOR HITACHI Y18,500,000 169,583 4/16/2003
- -----------------------------------------------------------------------------------------
PSR DEVELOPING M/C KYOWA Y24,000,000 220,000 4/16/2003
- -----------------------------------------------------------------------------------------
D/F PRETREATMENT KYOWA Y33,500,000 307,083 4/16/2003
- -----------------------------------------------------------------------------------------
SOFT Au POST RINSE KYOWA Y17,000,000 155,833 4/16/2003
- -----------------------------------------------------------------------------------------
SOFT PRETREATMENT SYSTEM TKC Y17,000,000 155,833 4/16/2003
- -----------------------------------------------------------------------------------------
D/F EXPOSURE ADTEC Y60,000,000 550,000 4/25/2003
- -----------------------------------------------------------------------------------------
DES LINE (DEVELOP/ETCH/STRIP) HMS EUR500,000 520,833 2/20/2003
- -----------------------------------------------------------------------------------------
PSR ACID RINSE AST KRW70,000,000 58,333 2/10/2003
- -----------------------------------------------------------------------------------------
AVI ATI KRW700,000,000 541,667 4/25/2003
=========================================================================================
$2,679,165
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ANNEX B
DESCRIPTION OF EQUIPMENT TO BE OWNED
- ------------------------------------------------------------------------------------
MACHINERY SUPPLIER CURRENCY AMOUNT (US$) OADER/LC DATE
- ------------------------------------------------------------------------------------
D/F AUTO PEELER COMI KRW80,000,000 66,667 4/25/2003
- ------------------------------------------------------------------------------------
REJECT MARKER SEMIMOTO KRW55,000,000 45,833 4/25/2003
====================================================================================
$112,500
- ------------------------------------------------------------------------------------
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ANNEX C
DESCRIPTION OF EQUIPMENT TO BE PURCHASED
- --------------------------------------------------------------------------------------
MACHINERY SUPPLIER CURRENCY AMOUNT (US$) OADER/LC DATE
- --------------------------------------------------------------------------------------
POSALUX DRILL M/C POSALUX $356,824 356,824 N/A
- --------------------------------------------------------------------------------------
SOFT Au PLATING LINE TKC $1,009,082 1,009,082 N/A
- --------------------------------------------------------------------------------------
AOI ORBOTEC $580,500 580,500 N/A
- --------------------------------------------------------------------------------------
PSR FINAL CURE SYSTEM ITODENKI $28,900,000 264,917 N/A
======================================================================================
$2,211,323
- --------------------------------------------------------------------------------------
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