EXHIBIT 4.17
EXECUTION COPY
THIS YANGDO TAMBO AGREEMENT (the "Agreement") is entered as of this 20th day of
June, by and among:
(i) SIMMTECH CO. LTD, a company duly incorporated and existing under the
laws of Korea and having its principal place of of business at 70-5
Songjung-Dong, Heung Duk-Ku, Choungju, Chungchongbuk-do, Korea 361-290 (the
"Transferor"); and
(ii) ST ASSEMBLY TEST SERVICES LTD., a company duly incorporated and
existing under the law of Singapore and having a place of business at 5
Yishun Street 23, Singapore 768442 (the "Transferee").
RECITALS
WHEREAS:
A. By the Strategic Assistance Loan Agreement dated as of June 20, 2003 (the
"Loan Agreement") made by and between the Transferor and the Transferee,
the Transferee has agreed, subject to and upon the terms and conditions
contained therein, to provide a loan to the Pledgor in the amount of USD 5
million;
B. The Transferor is the legal and beneficial owner of the Transferred
Property (as defined below) and the Transferor will be, upon acquisition,
the legal and beneficial owner of the Property To Be Owned (as defined
below);
C. For the purposes of securing the Secured Obligations (as defined below),
the Transferor desires to transfer to the Transferee, among other things,
all its rights, title and interests in and to the Transferred Property
pursuant to terms and conditions herein.
NOW, THEREFORE, it is agreed as follows:
SECTION 1. INTERPRETATION
Words and expressions defined in the Loan Agreement shall, unless otherwise
defined herein or the context otherwise requires, have the same meaning when
used in this Agreement. References to any agreement or document shall be
construed as references to such agreement or document as varied, amended,
novated or supplemented from time to time. In addition thereto, as used in this
Agreement:
1.1 "Property to Be Owned" shall mean any and all Equipments to be Owned on or
after the Loan Date (as defined in the Loan Agreement), as described in
Schedule II hereto (as amended from time to time pursuant to this
Agreement).
1.2. "Secured Obligations" shall mean (i) any and all obligations, liabilities
and indebtedness of the Transferor owing to the Transferee, presently
existing or to be incurred hereinafter under or with respect to the Loan
Agreement, (ii) moneys, obligations and liabilities owing and payable by
the Transferor to the Transferee under the Share Pledge Agreement dated
June 20, 2003 made between the Transferor and the Transferee and (iii)
moneys, obligations and liabilities owing and payable by the Transferor to
the Transferee under this Agreement.
1.3 "Transferred Property" shall mean all right, title, interest and benefits
whatsoever of the Transferor in and to the movable property described in
Schedule I hereto (as amended from time to time pursuant to this
Agreement).
SECTION 2. YANGDO TAMBO AGREEMENT
The Transferor hereby agrees to transfer and assign to the Transferee the
Transferred Property as security for the punctual payment, performance and
discharge in full of the Secured Obligations; provided, that unless and until an
Event of Default occurs under the Loan Agreement the Transferee shall hold the
title to the Transferred Property for the purpose of security only and shall not
use, seize or dispose of the Transferred Property. The Transferor hereby agrees
that any Property to Be Owned shall be subject to Yangdo Tambo on such property
for the benefit of the Transferee pursuant to this Agreement and that if such
property may not be subject to such Yando Tambo, the Transferor shall transfer
and assign to the Transferee the Property to Be Owned as security for the
punctual payment, performance and discharge in full of the Secured Obligations
in the manner applicable to the nature of it and perform any and all actions
necessary for the establishment and effectuation of such collateral arrangement
under the laws of Korea.
SECTION 3. REPRESENTATIONS AND WARRANTIES
3.1 The Transferor hereby represents, warrants and covenants to the Transferee
that:
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(a) the execution, delivery and performance by the Transferor of this
Agreement have been duly authorized by the Transferor, and are not in
conflict with any provision of any applicable laws or the articles of
incorporation of the Transferor;
(b) the execution, delivery and performance by the Transferor of this
Agreement does not violate or cause any default under any indenture,
agreement or undertaking by which the Transferor is bound;
(c) all authorization required from any government or governmental agency
in connection with this Agreement have been obtained and are in full
force and effect;
(d) this Agreement constitutes valid obligations of the Transferor,
legally binding upon it and enforceable in accordance with its terms,
subject, as to enforceability, to laws relating to bankruptcy,
insolvency, liquidation, reorganization, court schemes, moratoria,
administration and other laws generally affecting the rights of
creditors;
(e) all property forming part of the Transferred Property, prior to the
transfer and assignment by the Transferor to the Transferee made
hereby, is or, at the time it becomes part of the Transferred Property
shall be, owned legally by the Transferor by good and marketable title
free from all liens, and such title shall, by the transfer and
assignment contained herein, be automatically transferred and assigned
to the Transferee to provide for payment when due of the Secured
Obligations and shall at all times be and remain free from any lien,
except for the transfer and assignment of title made hereunder and any
other lien agreed to in writing by the Transferee or otherwise
permitted by the Loan Agreement;
(f) the Transferor has not agreed to sell, assign, transfer or create any
interest or other lien in or over all or any part of the Transferred
Property other than in favor of the Transferee hereunder or as
otherwise permitted under the Loan Agreement;
(g) no Person (other than the Transferee and the Transferor) is
exercising, has exercised or attempted to exercise any ownership
interest or other lien over any of the Transferred Property;
(h) to the knowledge of the Transferor, there are no circumstances that
would diminish the value of the Transferred Property; and
(i) the Transferor has not taken any corporate action nor have any other
steps been taken or legal proceedings been started by it or any third
party for its winding up, dissolution, reorganization or bankruptcy or
for the appointment of a receiver, trustee or similar officer over the
Transferor or its assets or revenues, and there occurs or continues no
cause/event that may lead to such action or steps.
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3.2 Each of the warranties and representations contained in the preceding
sub-clause shall survive and continue to have full force and effect until
the termination of this Agreement.
SECTION 4. COVENANTS OF THE TRANSFEROR
The Transferor covenants and undertakes the following with the Transferee:
(a) duly and punctually to observe and perform all the conditions and
obligations imposed on it by the Loan Agreement and this Agreement;
(b) not, without the prior written consent of the Transferee, to attempt
to sell, assign, transfer or create any lien over the Transferred
Property or the Property to Be Owned to or in favor of any person
other than the Transferee or otherwise dispose of any of the
Transferred Property or the Property to Be Owned, and shall not remove
the Transferred Property from the current premise unless it is
replaced with the substitute property as provided in paragraph (f)
below;
(c) at any time following the occurrence of an Event of Default that is
continuing, to do or permit to be done each and every act or thing the
Transferee may from time to time reasonably require to be done for the
purpose of enforcing the Transferee's rights under this Agreement or
in respect of any of the Transferred Property or the Property to Be
Owned and to allow its name to be used as and when required by the
Transferee for such purpose;
(d) to possess and use the Transferred Property in accordance with its
customary usage and preserve the value of the Transferred Property
with such care as is required of a good manager;
(e) to make all registrations, filings and recordings, and take all other
actions as are necessary or reasonably determined by the Transferee to
be advisable to ensure the continued legality, validity,
enforceability, priority and admissibility in evidence of this
Agreement;
(f) to promptly notify the Transferee of any theft, loss or destruction of
and damage to any of the Transferred Property or any other accident or
reduction in price that has occurred or is expected to occur with
respect to the Transferred Property or the Property to Be Owned
(including but not limited to reduction in value due to depreciation),
and in connection therewith, the Transferor agrees not to claim
against the Transferee for any damages or loss incurred in connection
with any
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such theft, loss destruction or damage unless attributable to any
willful misconduct of the Transferee. In case the value of the
Transferred Property or the Property to Be Owned is materially
affected due to theft, loss, destruction, damage, depreciation, etc.,
and the Transferor notifies the Transferee of such as provided in this
paragraph (f), the Transferee may request the Transferee to replace
the concerned Transferred Property or the Property to Be Owned with
other property that is reasonably acceptable to the Transferee, and
the Parties hereto shall take all necessary steps to ensure that the
terms of this Agreement shall apply to such replacement property,
including but not limited to execution of an amendment to this
Agreement which identifies the replacement property as the Transferred
Property or the Property to Be Owned that is subject to this
Agreement;
(g) to be responsible for the resolution of any disputes with a third
party in connection with the Transferred Property or the Property to
Be Owned, including any disputes involving claims against the
Transferred Property, and in connection therewith, the Transferor
agrees not to take any action which might adversely affect the
enforcement of the Transferee's rights or Transferee' interests in the
Transferred Property or the Property to Be Owned and to affirmatively
protect and defend such rights and interests in consultation with the
Transferee;
(j) to conduct its business in accordance with any applicable laws and
regulations;
(k) to pay all taxes, assessments and other governmental charges of any
kind imposed on or in respect of its income or any of its business
when due;
(l) immediately upon the execution of this Agreement, or, in case of the
Property To Be Owned, upon the acquisition thereof, and until all
Secured Obligations have been fully discharged, to affix a clearly
visible sign or plaque on each Transferred Property (to the
satisfaction of the Pledgee) providing to the effect that the legal
title to the Transferred Property belongs to the Transferee and that
the Transferred Property may not be transferred, sold or offered as
collateral (the exact content of which shall be approved in advance by
the Transferee); and
(m) throughout the term of this Agreement, to procure and maintain
insurance on the Transferred Property in such an amount and such a
form as approved by the Transferee and from such an insurance company
as may be selected or approved by the Transferee; and
(n) Each time when the Transferor obtains title to any Property to Be
Owned, the Transferor shall immediately notify the Transferee together
with a certified copy of amended Schedule I to add such property in
the list thereto (if applicable, to revise description thereof in the
existing Schedule I) and a certified copy of amended Schedule II to
delete the reference to such property in the list thereto (if
applicable,
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to revise description thereof in the existing Schedule II). Upon
confirmation by the Transferee, such amended Schedules shall be deemed
as the Schedules hereunder.
SECTION 5. ATTORNEY-IN-FACT
The Transferor hereby irrevocably appoints the Transferee as its true and lawful
attorney-in-fact with full power to require, demand and receive any and all
moneys and claims for money due and to become due under or with respect to the
Transferred Property to the extent transferred hereunder and to take any action
or execute any instrument which the Transferee may deem necessary to accomplish
the purpose hereof.
SECTION 6. TERMINATION AND REASSIGNMENT
The term of this Agreement shall begin on the date of this Agreement and end on
the date on which all Secured Obligations shall have been unconditionally and
irrevocably paid and discharged in. Upon termination of this Agreement, the
Transferee shall, at the request and cost of the Transferor, promptly
re-transfer to the Transferor all right, title, interest and benefit transferred
hereunder and the security constituted hereby to the Transferee, and take such
other actions as may be reasonably requested to effectuate such reassignment.
SECTION 7. PRESERVATION OF TRANSFERRED PROPERTY
The Transferor shall hold the Transferred Property, as custodian for the
Transferee. The Transferor hereby agrees that it will, from time to time at its
own expense, promptly execute and deliver all further instruments, and take all
further actions, as may be necessary or desirable, or as the Transferee may
request, in order to effect or protect the assignment of title to the
Transferred Property by the Transferor to the Transferee granted hereunder and
to enable the Transferee's rights and remedies hereunder with respect to the
Transferred Property.
SECTION 8. ADDITION TO TRANSFERRED PROPERTY
Any structure, mechanical components, wires, parts, fuels and attached machinery
and tools, which are united with or attached to the Transferred Property and
goods to be attached to or united with the Transferred Property by extension,
reconstruction, repair or rebuilding shall be deemed to have been transferred
and delivered to the Transferee under this Agreement.
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SECTION 9. ENFORCEMENT BY TRANSFEREE
9.1 If any of the Secured Obligations becomes due and payable, the Transferee
shall be entitled to enforce its rights under this Agreement.
9.2 If any of the Secured Obligations becomes due and payable, the Transferee
shall in its sole discretion have the authority to sell, transfer or
otherwise dispose of the Transferred Property at such times and at such
prices as are generally recognized as appropriate in custom and practice,
without the necessity of any legal process or procedure. Upon such sale,
transfer or disposal, the Transferee shall apply the Proceeds, after
deducting the costs of such sale, transfer or disposal, against the Secured
Obligations. Any excess amount shall be paid to the Transferor and any
Secured Obligations not fully covered by the Proceeds shall remain due and
owing and shall promptly be paid by the Transferor. Alternatively, the
Transferee may, at its sole discretion, choose to maintain possession and
ownership over the Transferred Property, in which case, the Transferee
shall value the Transferred Property based on commercially reasonable
standards and return any excess amount (net of any and all costs and taxes
involving transfer of the ownership of the Transferred Property) to the
Transferor and any Secured Obligations not fully covered by the value of
the Transferred Property shall remain due and owing and shall promptly be
paid by the Transferor.
9.3 If any of the Secured Obligations becomes due and payable, the Transferee
shall at any time have the right to enter upon any premises where the
Transferred Property is located, take possession of all or any part thereof
and remove same from such premises and the Transferor shall not interfere
with such taking of possession and removal.
9.4 The Transferor hereby consents to the procedures set out in Section 9.2 and
9.3 above and waives any and all objections it may have thereto.
9.5 The Transferee shall incur no liability as a result of the sale,
maintenance of ownership or any other disposition of the Transferred
Property or any part thereof pursuant to Section 9.2 hereof conducted in a
commercially reasonable manner. The Transferor hereby waives any claims
against the Transferee arising by reason of the fact that the price at
which the Transferred Property has been sold at such private sale may be
less than the price at which it could have been sold if the Transferee had
not accepted the first offer received or had offered the Transferred
Property to more than one offeree.
9.6 The application of the Proceeds shall be determined by the Transferee in
its absolute discretion, subject only to any other agreements between the
Transferee and the Transferor relating thereto and to the requirements of
any applicable law.
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As used in this Section 9, "Proceeds" of the Transferred Property
shall mean cash, securities and other property realized in respect of,
and distributions in kind of, the Transferred Property, including any
thereof received under any reorganization, liquidation or adjustment
of debt of the Transferor.
9.7 In case where the Transferor or a third party provides collateral (other
than the Transferred Property) to the Transferee to secure all or any part
of the Secured Obligations, the Transferee shall in its sole discretion
have the authority to determine the priority and extent of enforcement
between/among its rights under this Agreement and such other collateral
arrangements, without the necessity of any legal process or consultation
with the Transferor.
SECTION 10. ASSIGNMENT
This Agreement and the yangdo tambo created hereunder shall be binding upon and
inure to the benefit of the Transferor and the Transferee and their respective
successors and assigns. The Transferee may, in accordance with the Loan
Agreement and applicable laws, at any time assign all or any part of its rights
or obligations hereunder to any party (each an "Assignee"). The parties hereto
agree that to the extent of any transfer, the Assignee shall be deemed to have
the same rights and benefits under this Agreement as it would have had if it
were a Transferee signatory hereunder. The Transferor may not assign any of its
rights or obligations hereunder without the prior written consent of the
Transferee.
SECTION 11. FURTHER ASSURANCE
The Transferor shall do all such acts as may be necessary or appropriate
including, but not limited to, the execution and delivery of all further
instruments, notices and documents and all further action (whilst acting in a
commercially reasonable manner) that may be necessary in order to perfect and/or
protect any lien granted or purported to be granted hereby or to enable the
Transferee to exercise and enforce its rights and remedies hereunder with
respect to the Transferred Property.
SECTION 12. EXPENSES, TAXES AND INDEMNIFICATION
The Transferor shall be liable for and shall indemnify the Transferee on demand
against, and shall pay, (a) the reasonable costs, expenses, taxes and other
liabilities incurred by the Transferee to protect or enforce the Transferee's
title to and interest in the Transferred Property and the Transferee's rights
against the Transferor under this Agreement (including, without limitation, the
transfer and assignment by the Transferor to the Transferee of the Transferred
Property and the re-transfer and re-assignment by the Transferee to the
Transferor of the Transferred Property),
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provided that any such enforcement shall be in a commercially reasonable manner;
(b) all withholding, excise and other taxes and duties, and all reasonable
costs, expenses and other liabilities, incurred by the Transferee in connection
with, or otherwise attributable to, receipt by the Transferees of, or payment by
Transferor of, any reasonable costs, expenses and other liabilities and
indemnities provided for in this Section or any other provision of this
Agreement, other than taxes imposed on overall net income of the Transferee.
SECTION 13. MISCELLANEOUS
13.1 Notices. All notices, requests and demands to or upon the respective
parties hereto to be effective, shall be in writing and shall be personally
delivered or sent by facsimile (with subsequent written confirmation) or by
registered or certified first class mail, postage prepaid, return receipt
requested, or by overnight (or next business day) courier service shall be
deemed to have been duly given or made when delivered by hand, on the day
that such facsimile is transmitted, or, if by first class mail, five days
following the date on which such writing is deposited with the postal
service, or the day after the date when deposited with an overnight (or
next business day) courier service, addressed as follows, or to such other
address as either party hereto may hereafter specify in writing to the
other party:
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
13.2 Severability. If any of the provisions of this Agreement shall contravene
any law or regulation or be held invalid, this Agreement shall be construed
as if not containing those provisions, and the rights and obligations of
the parties hereto shall be construed and enforced accordingly.
13.3 Amendments, Changes and Modifications. This Agreement shall not be amended,
changed, modified, altered or terminated, unless the prior written approval
of each of the
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Transferor and the Transferee is obtained. This Agreement shall not be
amended by an oral agreement.
13.4 Counterparts. This Agreement may be executed in multiple counterparts,
each of which, when executed, shall constitute an original but all of
which together shall constitute one and the same instrument.
13.5 Heading. Headings and titles herein are for convenience only and shall not
affect the construction or interpretation of this Agreement.
13.6 Entire Agreement. This Agreement is intended by the parties as the written
final expression of each party's obligations and rights in connection with
the Transferred Property and supersedes all prior and contemporaneous
understandings or agreements concerning the subject matter hereof.
13.7 Conflict. In the case of a conflict between the provisions of this
Agreement and the provisions of the Loan Agreement, the Loan Agreement
shall prevail.
13.8 No Waiver. The Transferee shall not, by any act, delay, indulgence,
omission or otherwise, except by an express written instrument clearly
indicating an intention to waive, be deemed to have waived any right or
remedy hereunder or to have acquiesced in any Event of Default. No failure
to exercise, nor any delay in exercising on the part of the Transferee,
any right, power or privilege hereunder shall operate as a waiver thereof.
No single or partial exercise of any right, power, privilege hereunder
shall preclude any other or further exercise thereof or the exercise of
any other right, power or privilege.
13.9 Remedies Cumulative. The rights and remedies provided herein are
cumulative and may be exercised individually or concurrently, and are not
exclusive of any other rights or remedies provided by law.
13.10 Currencies. All Secured Obligations under this Agreement are payable in
United States dollars (the "Required Currency"). If the Transferee
receives or recovers any moneys in any other currency, whether upon
enforcement of its rights under this Agreement or otherwise, the
Transferor shall indemnify the Transferee against the difference (if any)
between the amount received by the Transferee when it converts amounts
received in currencies other than the Required Currency to the Required
Currency and the amount due in the Required Currency. The Transferor shall
assist the Transferee at all times to obtain any exchange conversion
approval required by the Transferee in connection with this Agreement or
the Secured Obligations.
13.11 Governing Law and Jurisdiction. This Agreement and the security created
pursuant hereto shall be governed by the laws of Korea in all respects,
including matters of construction,
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validity and performance. The parties hereto agree to submit to the
non-exclusive jurisdiction of Seoul District Court for the purpose of this
Agreement.
(Signature page to follow)
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IN WITNESS WHEREOF, the parties hereto have caused this Yangdo Tambo Agreement
to be duly executed as of the day and year first above written.
TRANSFEROR: SIMMTECH CO. LTD
By /s/ Se-Ho Chun
-----------------------------------------------
Name:
Title: Representative Director
In the presence of : /s/ C. H. Oh
----------------------
TRANSFEREE: ST ASSEMBLY TEST SERVICES LTD
By /s/ Tan Lay Koon
-----------------------------------------------
Name: Mr. Tan Lay Koon
Title: President and CEO
In the presence of : /s/ Suh Tae Suk
----------------------
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SCHEDULE I
Description of Transferred Property
- -----------------------------------------------------------------------------------------------------------------------
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 KRW700,000,000 583,333 4/25/2003
- -----------------------------------------------------------------------------------------------------------------------
D/F AUTO PEELER COMI KRW80,000,000 66,667 4/25/2003
- -----------------------------------------------------------------------------------------------------------------------
REJECT MARKER SEMIMOTO KRW55,000,000 45,833 4/25/2003
- -----------------------------------------------------------------------------------------------------------------------
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
- -----------------------------------------------------------------------------------------------------------------------
$5,002,989
- -----------------------------------------------------------------------------------------------------------------------
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SCHEDULE II
Description of the Property to Be Owned
- -----------------------------------------------------------------------------------------------------------------------
MACHINERY SUPPLIER CURRENCY AMOUNT (US$) 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
- -----------------------------------------------------------------------------------------------------------------------
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
- -----------------------------------------------------------------------------------------------------------------------
$2,323,823
- -----------------------------------------------------------------------------------------------------------------------
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