Exhibit 4.40
================================================================================
----------------------
STATS CHIPPAC LTD.
6-3/4% SENIOR NOTES DUE 2011
----------------------
INDENTURE
Dated as of November 18, 2004
----------------------
U.S. BANK NATIONAL ASSOCIATION
Trustee
----------------------
================================================================================
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310(a)(1)....................................... 7.10
(a)(2)....................................... 7.10
(a)(3)....................................... N.A.
(a)(4)....................................... N.A.
(a)(5)....................................... 7.10
(b).......................................... 7.10
(c).......................................... N.A.
311(a).......................................... 7.11
(b).......................................... 7.11
(c).......................................... N.A.
312(a).......................................... 2.05
(b).......................................... 11.03
(c).......................................... 11.03
313(a).......................................... 7.06
(b)(1)....................................... N.A.
(b)(2)....................................... 7.06; 7.07
(c).......................................... 7.06; 11.02
(d).......................................... 7.06
314(a).......................................... 4.03;11.02; 11.05
(b).......................................... N.A.
(c)(1)....................................... 11.04
(c)(2)....................................... 11.04
(c)(3)....................................... N.A.
(d).......................................... N.A.
(e).......................................... 11.05
(f).......................................... N.A.
315(a).......................................... 7.01
(b).......................................... 7.05; 11.02
(c).......................................... 7.01
(d).......................................... 7.01
(e).......................................... 6.11
316(a) (last sentence).......................... 2.09
(a)(1)(A).................................... 6.05
(a)(1)(B).................................... 6.04
(a)(2)....................................... N.A.
(b).......................................... 6.07
(c).......................................... 2.12
317(a)(1)....................................... 6.08
(a)(2)....................................... 6.09
(b).......................................... 2.04
318(a).......................................... 11.01
(b).......................................... N.A.
(c).......................................... 11.01
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions........................................................................... 1
Section 1.02 Other Definitions..................................................................... 24
Section 1.03 Incorporation by Reference of Trust Indenture Act..................................... 25
Section 1.04 Rules of Construction................................................................. 25
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating....................................................................... 26
Section 2.02 Execution and Authentication.......................................................... 26
Section 2.03 Registrar and Paying Agent............................................................ 27
Section 2.04 Paying Agent to Hold Money in Trust................................................... 27
Section 2.05 Holder Lists.......................................................................... 27
Section 2.06 Transfer and Exchange................................................................. 28
Section 2.07 Replacement Notes..................................................................... 39
Section 2.08 Outstanding Notes..................................................................... 39
Section 2.09 Treasury Notes........................................................................ 40
Section 2.10 Temporary Notes....................................................................... 40
Section 2.11 Cancellation.......................................................................... 40
Section 2.12 Defaulted Interest.................................................................... 40
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.................................................................... 41
Section 3.02 Selection of Notes to Be Redeemed or Purchased........................................ 41
Section 3.03 Notice of Redemption.................................................................. 41
Section 3.04 Effect of Notice of Redemption........................................................ 42
Section 3.05 Deposit of Redemption or Purchase Price............................................... 42
Section 3.06 Notes Redeemed or Purchased in Part................................................... 43
Section 3.07 Optional Redemption................................................................... 43
Section 3.08 Mandatory Redemption.................................................................. 44
Section 3.09 Offer to Purchase by Application of Excess Proceeds................................... 44
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes...................................................................... 46
Section 4.02 Maintenance of Office or Agency....................................................... 46
Section 4.03 Reports............................................................................... 47
Section 4.04 Compliance Certificate................................................................ 48
Section 4.05 Taxes................................................................................. 48
Section 4.06 Stay, Extension and Usury Laws........................................................ 48
Section 4.07 Restricted Payments................................................................... 49
Section 4.08 Limitations on Restrictions on Distributions from Restricted Subsidiaries............. 52
Section 4.09 Limitation on Indebtedness............................................................ 53
Section 4.10 Asset Sales........................................................................... 56
i
Section 4.11 Transactions with Affiliates.......................................................... 58
Section 4.12 Liens................................................................................. 59
Section 4.13 Limitation on Assets of Non-Guarantors................................................ 59
Section 4.14 Corporate Existence................................................................... 60
Section 4.15 Offer to Repurchase Upon Change of Control............................................ 60
Section 4.16 Note Guarantee by STATS ChipPAC Korea................................................. 61
Section 4.17 No Amendment to Subordination Provisions.............................................. 63
Section 4.18 Payments for Consent.................................................................. 64
Section 4.19 Payment of Additional Amounts......................................................... 64
Section 4.20 Additional Note Guarantees............................................................ 65
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.............................................. 65
Section 5.02 Merger, Consolidation, or Sale of Assets of Guarantors................................ 67
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default..................................................................... 67
Section 6.02 Acceleration.......................................................................... 69
Section 6.03 Other Remedies........................................................................ 70
Section 6.04 Waiver of Past Defaults............................................................... 70
Section 6.05 Control by Majority................................................................... 71
Section 6.06 Limitation on Suits................................................................... 71
Section 6.07 Rights of Holders of Notes to Receive Payment......................................... 71
Section 6.08 Collection Suit by Trustee............................................................ 71
Section 6.09 Trustee May File Proofs of Claim...................................................... 71
Section 6.10 Priorities............................................................................ 72
Section 6.11 Undertaking for Costs................................................................. 72
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee..................................................................... 73
Section 7.02 Rights of Trustee..................................................................... 73
Section 7.03 Individual Rights of Trustee.......................................................... 74
Section 7.04 Trustee's Disclaimer.................................................................. 74
Section 7.05 Notice of Defaults.................................................................... 74
Section 7.06 Reports by Trustee to Holders of the Notes............................................ 75
Section 7.07 Compensation and Indemnity............................................................ 75
Section 7.08 Replacement of Trustee................................................................ 76
Section 7.09 Successor Trustee by Merger, etc...................................................... 76
Section 7.10 Eligibility; Disqualification......................................................... 77
Section 7.11 Preferential Collection of Claims Against Company..................................... 77
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.............................. 77
Section 8.02 Legal Defeasance and Discharge........................................................ 77
Section 8.03 Covenant Defeasance................................................................... 78
Section 8.04 Conditions to Legal or Covenant Defeasance............................................ 78
ii
Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions............................................................................... 80
Section 8.06 Repayment to Company.................................................................. 80
Section 8.07 Reinstatement......................................................................... 81
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes................................................... 81
Section 9.02 With Consent of Holders of Notes...................................................... 82
Section 9.03 Compliance with Trust Indenture Act................................................... 83
Section 9.04 Revocation and Effect of Consents..................................................... 83
Section 9.05 Notation on or Exchange of Notes...................................................... 84
Section 9.06 Trustee to Sign Amendments, etc....................................................... 84
ARTICLE 10
SATISFACTION AND DISCHARGE
Section 10.01 Satisfaction and Discharge............................................................ 84
Section 10.02 Application of Trust Money............................................................ 85
ARTICLE 11
MISCELLANEOUS
Section 11.01 Trust Indenture Act Controls.......................................................... 85
Section 11.02 Notices............................................................................... 86
Section 11.03 Communication by Holders of Notes with Other Holders of Notes......................... 87
Section 11.04 Certificate and Opinion as to Conditions Precedent.................................... 87
Section 11.05 Statements Required in Certificate or Opinion......................................... 87
Section 11.06 Rules by Trustee and Agents........................................................... 87
Section 11.07 No Personal Liability of Directors, Officers, Employees and Stockholders.............. 87
Section 11.08 Governing Law......................................................................... 88
Section 11.09 JURISDICTION.......................................................................... 88
Section 11.10 Waiver of Immunity.................................................................... 88
Section 11.11 Process Agent......................................................................... 88
Section 11.12 No Adverse Interpretation of Other Agreements......................................... 89
Section 11.13 Successors............................................................................ 89
Section 11.14 Severability.......................................................................... 89
Section 11.15 Counterpart Originals................................................................. 89
Section 11.16 Currency Indemnity.................................................................... 89
Section 11.17 Currency Calculation.................................................................. 89
Section 11.18 Table of Contents, Headings, etc...................................................... 90
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Exhibit E FORM OF NOTATION OF GUARANTEE
Exhibit F FORM OF SUBSIDIARY GUARANTEE AGREEMENT
iii
INDENTURE dated as of November 18, 2004 between STATS ChipPAC Ltd., a
corporation organized under the laws of the Republic of Singapore, and U.S. Bank
National Association, as trustee.
The Company and the Trustee agree as follows for the benefit of each other
and for the equal and ratable benefit of the Holders (as defined below) of the 6
- -3/4% Senior Notes due 2011 (the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"144A Global Note" means a Global Note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.
"Additional Notes" means additional Notes (other than the Initial Notes)
issued under this Indenture in accordance with Sections 2.02 and 4.09 hereof, as
part of the same series as the Initial Notes.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided that beneficial ownership of 10% or more of the
Voting Stock of a Person will be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" have correlative meanings.
"Agent" means any Registrar, co-registrar, Paying Agent or additional
paying agent.
"Applicable Premium" means, with respect to any Note on any redemption
date, the excess of:
(1) the present value at such redemption date of (a) the redemption
price of the Note at November 15, 2008, (such redemption price being set
forth in the table appearing in Section 3.07 hereof) plus (b) all required
interest payments due on the Note through November 15, 2008, (excluding
accrued but unpaid interest to the redemption date), computed using a
discount rate equal to the Treasury Rate as of such redemption date plus
50 basis points; over
(2) the principal amount of the Note, if greater.
"Applicable Procedures" means, with respect to any transfer or exchange of
or for beneficial interests in any Global Note, the rules and procedures of the
Depositary, Euroclear and Clearstream that apply to such transfer or exchange.
"Asset Sale" means (1) the sale, lease, conveyance or other disposition of
any assets or rights; provided that the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company and its
Restricted Subsidiaries taken as a whole will be governed by Section 4.15 hereof
and/or Section 5.01 hereof, and not by the provisions of Section 4.10 hereof;
and (2) the issuance of Equity Interests in any of the Restricted Subsidiaries
or the sale of Equity Interests in any of the Company's Subsidiaries.
1
Notwithstanding the preceding, none of the following items will be deemed
to be an Asset Sale:
(a) any single transaction or series of related transactions that involves
assets having a Fair Market Value of less than $1.0 million;
(b) a transfer of assets between or among the Company and the Guarantors;
(c) an issuance of Equity Interests by a Restricted Subsidiary to the
Company or to a Guarantor;
(d) the sale or lease of products, services, accounts receivable or
inventory in the ordinary course of business and any sale or other disposition
of damaged, uneconomical, negligible, surplus, worn-out or obsolete assets or
assets that are no longer useful in the conduct of business of the Company and
its Restricted Subsidiaries, in each case, in the ordinary course of business;
(e) the sale or other disposition of cash or Temporary Cash Investments;
(f) a Restricted Payment that does not violate Section 4.07 hereof or a
Permitted Investment;
(g) the issuance, sale or other disposition of shares of Capital Stock of
a Restricted Subsidiary where such shares are directors' qualifying shares or
are required by applicable law to be held by a Person other than the Company or
a Restricted Subsidiary;
(h) dispositions of receivables in connection with the compromise,
settlement or collection thereof in the ordinary course of business or in
bankruptcy or similar proceedings; and
(i) the lease, assignment or sublease of any real or personal property in
the ordinary course of business and consistent in scale and scope with past
practice.
"Attributable Debt" relating to a Sale/Leaseback Transaction means, as at
the time of determination, the present value (discounted at the interest rate
borne by the Notes, compounded annually) of the total obligations of the lessee
for rental payments during the remaining term of the lease included in the Sale/
Leaseback Transaction, including any period for which the lease has been
extended or may, at the option of the lessor, be extended.
"Average Life" means, as of the date of determination, relating to any
Indebtedness or Preferred Stock, the quotient obtained by dividing: (1) the sum
of the products of the numbers of years from the date of determination to the
dates of each successive scheduled principal payment of the Indebtedness or
redemption or similar payment relating to the Preferred Stock multiplied by the
amount of the payment by (2) the sum of all the payments.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-3 and
Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person" (as that term is used in Section 13(d)(3)
of the Exchange Act), such "person" will be deemed to have beneficial ownership
of all securities that such "person" has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is
exercisable only after the passage of time. The terms "Beneficially Owns" and
"Beneficially Owned" have a corresponding meaning.
2
"Board of Directors" means:
(1) with respect to a corporation, the board of directors of the
corporation or any committee thereof duly authorized to act on behalf of
such board;
(2) with respect to a partnership, the Board of Directors of the
general partner of the partnership;
(3) with respect to a limited liability company, the managing member
or members or any controlling committee of managing members thereof; and
(4) with respect to any other Person, the board or committee of such
Person serving a similar function.
"Broker-Dealer" has the meaning set forth in the Registration Rights
Agreement.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means an obligation that is required to be
classified and accounted for as a capital lease for financial reporting purposes
in compliance with U.S. GAAP, and the amount of Indebtedness represented by the
obligation shall be the capitalized amount of the obligation determined in
compliance with U.S. GAAP; and the Stated Maturity of the obligation shall be
the date of the last payment of rent or any other amount due under the lease
prior to the first date upon which the lease may be terminated by the lessee
without payment of a penalty.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership interests (whether general or limited) or membership
interests; and
(4) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person, but excluding from all of the foregoing any
debt securities convertible into Capital Stock, whether or not such debt
securities include any right of participation with Capital Stock.
"Change of Control" means the occurrence of any of the following:
(1) the direct or indirect sale, lease, transfer, conveyance or
other disposition (other than by way of merger or consolidation), in one
or a series of related transactions, of all or substantially all of the
properties or assets of the Company and its Subsidiaries taken as a whole
to any "person" (as that term is used in Section 13(d) of the Exchange
Act) other than to one or more Permitted Holders or any Related Party of
any Permitted Holder;
(2) the adoption of a plan relating to the liquidation or
dissolution of the Company;
3
(3) the consummation of any transaction (including, without
limitation, any merger or consolidation), the result of which is that any
"person" (as defined above), other than the Permitted Holders and their
respective Related Parties, becomes the Beneficial Owner, directly or
indirectly, of more than 50% of the Voting Stock of the Company, measured
by voting power rather than number of shares; or
(4) the Company consolidates with, or merges with or into, any
Person, other than the Permitted Holders and their respective Related
Parties, or any Person other than the Permitted Holders and their
respective Related Parties, consolidates with, or merges with or into, the
Company, in any such event pursuant to a transaction in which any of the
outstanding Voting Stock of the Company or such other Person is converted
into or exchanged for cash, securities or other property, other than any
such transaction where the Voting Stock of the Company outstanding
immediately prior to such transaction is converted into or exchanged for
Voting Stock (other than Disqualified Stock) of the surviving or
transferee Person constituting a majority of the outstanding shares of
such Voting Stock of such surviving or transferee Person (immediately
after giving effect to such issuance).
Notwithstanding the foregoing, any sale, lease, transfer, conveyance, merger,
liquidation, or dissolution involving any of the assets or capital stock of any
Permitted Holder shall not be considered a "Change of Control."
"Clearstream" means Clearstream Banking, S.A.
"Company" means STATS ChipPAC Ltd., and any and all successors thereto.
"Consolidated Coverage Ratio" as of any date of determination means the
ratio of (a) the aggregate amount of EBITDA for the period of the most recent
four consecutive fiscal quarters for which internal financial statements are
available ending on or prior to the date of determination to (b) Consolidated
Interest Expense for the four fiscal quarters; provided, however, that:
(1) if the Company or any Restricted Subsidiary has Incurred any
Indebtedness since the beginning of the period that remains outstanding or
if the transaction giving rise to the need to calculate the Consolidated
Coverage Ratio is an Incurrence of Indebtedness, or both, EBITDA and
Consolidated Interest Expense for the period shall be calculated after
giving effect on a pro forma basis to the Indebtedness as if the
Indebtedness had been Incurred on the first day of the period (except that
in making such computation, the amount of Indebtedness under any revolving
credit facility outstanding on the date of such calculation will be deemed
to be (i) the average daily balance of such Indebtedness during such four
fiscal quarters or such shorter period for which such facility was
outstanding or (ii) if such facility was created after the end of such
four fiscal quarters, the average daily balance of such Indebtedness
during the period from the date of creation of such facility to the date
of such calculation) and the discharge of any other Indebtedness repaid,
repurchased, defeased or otherwise discharged with the proceeds of the new
Indebtedness as if the discharge had occurred on the first day of the
period;
(2) if the Company or any Restricted Subsidiary has repaid,
repurchased, defeased or otherwise discharged any Indebtedness since the
beginning of the period or if any Indebtedness is to be repaid,
repurchased, defeased or otherwise discharged (in each case other than
Indebtedness Incurred under any revolving credit facility unless the
Indebtedness has been permanently repaid and has not been replaced) on the
date of the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio, EBITDA and Consolidated Interest Expense for
the period shall be calculated on a pro forma basis as if the discharge
had occurred on the first day of the period and
4
as if the Company or the Restricted Subsidiary has not earned the interest
income actually earned during the period relating to cash or Temporary
Cash Investments used to repay, repurchase, defease or otherwise discharge
the Indebtedness;
(3) if since the beginning of the period the Company or any
Restricted Subsidiary shall have made any Asset Sale or if the transaction
giving rise to the need to calculate the Consolidated Coverage Ratio is
such an Asset Sale, the EBITDA for the period shall be reduced by an
amount equal to the EBITDA, if positive, directly attributable to the
assets which are the subject of the Asset Sale for the period, or
increased by an amount equal to the EBITDA, if negative, directly
attributable for the period and Consolidated Interest Expense for the
period shall be reduced by an amount equal to the Consolidated Interest
Expense directly attributable to any Indebtedness of the Company or any
Restricted Subsidiary repaid, repurchased, defeased or otherwise
discharged relating to the Company and its continuing Restricted
Subsidiaries in connection with the Asset Sale for the period (or, if the
Capital Stock of any Restricted Subsidiary is sold, the Consolidated
Interest Expense for the period directly attributable to the Indebtedness
of the Restricted Subsidiary to the extent the Company and its continuing
Restricted Subsidiaries are no longer liable for the Indebtedness after
the sale);
(4) if since the beginning of the period the Company or any
Restricted Subsidiary, by merger or otherwise, shall have made an
Investment in any Restricted Subsidiary, or any Person which becomes a
Restricted Subsidiary, or an acquisition of assets, including any
acquisition of assets occurring in connection with a transaction requiring
a calculation to be made hereunder, which constitutes all or substantially
all of an operating unit of a business, EBITDA and Consolidated Interest
Expense for the period shall be calculated after giving their pro forma
effect, including the Incurrence of any Indebtedness, as if the Investment
or acquisition occurred on the first day of the period; and
(5) if since the beginning of the period any Person, that
subsequently became a Restricted Subsidiary or was merged with or into the
Company or any Restricted Subsidiary since the beginning of the period,
shall have made any Asset Sale, any Investment or acquisition of assets
that would have required an adjustment under clause (3) or (4) above if
made by the Company or a Restricted Subsidiary during the period, EBITDA
and Consolidated Interest Expense for the period shall be calculated after
giving their pro forma effect as if the Asset Sale, Investment or
acquisition occurred on the first day of the period.
For purposes of this definition, whenever pro forma effect is to be given to an
acquisition or disposition of assets, the amount of income or earnings relating
to the acquisition or disposition and the amount of Consolidated Interest
Expense associated with any Indebtedness Incurred in connection with, the
acquisition or disposition, the pro forma calculations shall be determined in
good faith by a responsible financial or accounting officer of the Company and
shall include any applicable Pro Forma Cost Savings. If any Indebtedness bears a
floating rate of interest and is being given pro forma effect, the interest of
the Indebtedness shall be calculated as if the rate in effect on the date of
determination had been the applicable rate for the entire period, taking into
account any Interest Rate Agreement applicable to the Indebtedness if the
Interest Rate Agreement has a remaining term in excess of 12 months.
"Consolidated Interest Expense" means, for any period, the Company's total
interest expense and that of its consolidated Restricted Subsidiaries determined
in compliance with U.S. GAAP, plus, to the extent not included in total interest
expense, and to the extent incurred by the Company or its Restricted
Subsidiaries, without duplication:
5
(1) interest expense attributable to Capital Lease Obligations and
the interest expense attributable to leases constituting part of a
Sale/Leaseback Transaction, in each case, determined in compliance with
U.S. GAAP;
(2) amortization of debt discount and debt issuance cost;
(3) capitalized interest;
(4) non-cash interest expenses;
(5) commissions, discounts and other fees and charges owed relating
to letters of credit and bankers' acceptance financing;
(6) net costs associated with Hedging Obligations involving any
Interest Rate Agreement, including amortization of fees, determined
compliance U.S. GAAP;
(7) dividends paid in cash or Disqualified Stock relating to (A) all
Preferred Stock of Restricted Subsidiaries and (B) all of the Company's
Disqualified Stock, in each case, held by Persons other than the Company
or a Wholly Owned Subsidiary;
(8) interest actually paid by the Company or a Restricted Subsidiary
under any Guarantee of Indebtedness of any other Person; and
(9) the cash contributions to any employee stock ownership plan or
similar trust to the extent the contributions are used by the plan or
trust to pay interest or fees to any Person other than the Company in
connection with Indebtedness Incurred by the plan or trust;
and less, to the extent included in total interest expense, the amortization
during the period of capitalized financing costs associated with the issuance of
the Notes and the related repayment of the 12.75% senior subordinated notes due
2009 of ChipPAC International Company Limited, and the amortization during the
period of other capitalized financing costs.
"Consolidated Net Income" means, for any period, the net income of the
Company and its consolidated Subsidiaries determined in compliance with U.S.
GAAP; provided, however, that there shall not be included in the Consolidated
Net Income:
(1) any net income of any Person other than the Company if the
Person is not a Restricted Subsidiary, except that (A) limited by the
exclusion contained in clause (4) below, the Company's equity in the net
income of the Person for the period shall be included in Consolidated Net
Income up to the aggregate amount of cash actually distributed by the
Person during the period to the Company or a Restricted Subsidiary as a
dividend or other distribution subject, in the case of a dividend or other
distribution paid to a Restricted Subsidiary, to the limitations contained
in clause (3) below and (B) the Company's equity in a net loss of the
Person for the period shall be included in determining the Consolidated
Net Income;
(2) any net income or loss of any Person acquired by the Company or
any of its Subsidiaries in a pooling of interests transaction for any
period prior to the date of the acquisition;
(3) any net income or loss of any Restricted Subsidiary if the
Restricted Subsidiary is restricted, directly or indirectly, in its
ability to pay dividends or make distributions, directly or indirectly, to
the Company, except that (A) limited by the exclusion contained in clause
(4)
6
below, the Company's equity in the net income of the Restricted Subsidiary
for the period shall be included in Consolidated Net Income up to the
aggregate amount of cash that could have been distributed by the
Restricted Subsidiary consistent with these restrictions during the period
to the Company or another Restricted Subsidiary as a dividend or other
distribution subject, in the case of a dividend or other distribution paid
to another Restricted Subsidiary, to the limitation contained in this
clause, and (B) the Company's equity in a net loss of any the Restricted
Subsidiary for the period shall be included in determining Consolidated
Net Income;
(4) any gain or loss realized upon the sale or other disposition of
any of assets of the Company or those of its consolidated Subsidiaries,
including under any sale-and-leaseback arrangement, which is not sold or
otherwise disposed of in the ordinary course of business and any gain or
loss realized upon the sale or other disposition of any Capital Stock of
any Person;
(5) any extraordinary or unusual gains or losses and the related tax
effect in compliance with U.S. GAAP;
(6) any translation gains and losses due solely to fluctuations in
currency values and the related tax effect in compliance with U.S. GAAP;
(7) the cumulative effect of a change in accounting principles; or
(8) any loss by any Person arising from the Merger and the
transactions contemplated thereby.
Notwithstanding the provisions, for the purposes of Section 4.07 hereof only,
there shall be excluded from Consolidated Net Income any dividends, repayments
of loans or advances or other transfers of assets from Unrestricted Subsidiaries
to the Company or a Restricted Subsidiary to the extent the dividends,
repayments or transfers increase the amount of Restricted Payments permitted
under clause (a)(3)(D) of Section 4.07 hereof.
"Corporate Trust Office of the Trustee" will be at the address of the
Trustee specified in Section 11.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"Credit Facilities" means, one or more debt facilities (including, without
limitation, the Multi-Currency Specific Advance Facility) or commercial paper
facilities, in each case, with banks or other institutional lenders providing
for revolving credit loans, term loans, receivables financing (including through
the sale of receivables to such lenders or to special purpose entities formed to
borrow from such lenders against such receivables) or letters of credit, in each
case, as amended, restated, modified, renewed, refunded, replaced (whether upon
or after termination or otherwise) or refinanced (including by means of sales of
debt securities to institutional investors) in whole or in part from time to
time.
"Currency Agreement" of a Person means any foreign exchange contract,
currency swap agreement or other similar agreement to which the Person is a
party or beneficiary.
"Custodian" means the Trustee, as custodian with respect to the Notes in
global form, or any successor entity thereto.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
7
"Definitive Note" means a certificated Note registered in the name of the
Holder thereof and issued in accordance with Section 2.06 hereof, substantially
in the form of Exhibit A hereto except that such Note shall not bear the Global
Note Legend and shall not have the "Schedule of Exchanges of Interests in the
Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in whole
or in part in global form, the Person specified in Section 2.03 hereof as the
Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible, or for which it is
exchangeable, in each case, at the option of the holder of the Capital Stock),
or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option
of the holder of the Capital Stock, in whole or in part, on or prior to the date
that is 91 days after the date on which the Notes mature. Notwithstanding the
preceding sentence, any Capital Stock that would constitute Disqualified Stock
solely because the holders of the Capital Stock have the right to require the
Company to repurchase such Capital Stock upon the occurrence of a change of
control or an asset sale will not constitute Disqualified Stock if the terms of
such Capital Stock provide that the Company may not repurchase or redeem any
such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with Section 4.07 hereof. The amount of Disqualified Stock
deemed to be outstanding at any time for purposes of this Indenture will be the
maximum amount that the Company and its Restricted Subsidiaries may become
obligated to pay upon the maturity of, or pursuant to any mandatory redemption
provisions of, such Disqualified Stock, exclusive of accrued dividends.
"EBITDA" for any period means the sum of Consolidated Net Income, plus
Consolidated Interest Expense plus the following in the amount deducted in
calculating Consolidated Net Income, without duplication:
(1) all income tax expense the Company and its consolidated
Restricted Subsidiaries;
(2) depreciation expense of the Company and its consolidated
Restricted Subsidiaries;
(3) amortization expense or non-cash impairment charges recorded in
connection with the application of Financial Accounting Standards No. 142
"Goodwill and Other Intangibles" of the Company and its consolidated
Restricted Subsidiaries, excluding amortization expense other than the
amortization of capitalized financing costs, attributable to a prepaid
cash item that was paid in a prior period;
(4) all non-cash stock-based compensation charges of the Company and
its consolidated Restricted Subsidiaries;
(5) all other non-cash charges of the Company and its consolidated
Restricted Subsidiaries, excluding any non-cash charge to the extent it
represents an accrual of or reserve for cash expenditures in any future
period; and
(6) all fees and expenses paid or required to be paid by the Company
and its consolidated Restricted Subsidiaries arising from the Merger and
the transactions contemplated thereby
in each case for the period. Notwithstanding these provisions, the provision for
taxes based on the income or profits of, and the depreciation and amortization
and non-cash charges of, a Restricted
8
Subsidiary shall be added to Consolidated Net Income to compute EBITDA only in
an amount that and in the same proportion that the net income of the Restricted
Subsidiary was included in calculating Consolidated Net Income and only if a
corresponding amount would be permitted at the date of determination to be
dividend to the Company by the Restricted Subsidiary without prior approval that
has not been obtained, under the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to the Restricted Subsidiary or its stockholders.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Euroclear" means Euroclear Bank, S.A./N.V., as operator of the Euroclear
system.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended.
"Exchange Notes" means the Notes issued in the Exchange Offer pursuant to
Section 2.06(f) hereof.
"Exchange Offer" has the meaning set forth in the Registration Rights
Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Fair Market Value" means the value that would be paid by a willing buyer
to an unaffiliated willing seller in a transaction not involving distress or
necessity of either party, determined in good faith by the Board of Directors of
the Company (unless otherwise provided in this Indenture).
"Global Note Legend" means the legend set forth in Section 2.06(g)(2)
hereof, which is required to be placed on all Global Notes issued under this
Indenture.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes deposited with or on
behalf of and registered in the name of the Depository or its nominee,
substantially in the form of Exhibit A hereto and that bears the Global Note
Legend and that has the "Schedule of Exchanges of Interests in the Global Note"
attached thereto, issued in accordance with Section 2.01, 2.06(b)(3),
2.06(b)(4), 2.06(d)(2) or 2.06(f) hereof.
"Government Securities" means securities that are direct obligations, or
certificates representing an ownership interest in the obligations, of the
United States of America, including any Person controlled or supervised by and
acting as an agency or instrumentality of the United States, for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable at the issuer's option.
"Guarantee" means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services, to take or pay or to maintain financial statement
conditions or otherwise).
9
"Guarantors" means each of:
(1) STATS ChipPAC, Inc., a Delaware corporation, STATS ChipPAC Test
Services, Inc., a Delaware corporation, STATS Holdings Limited, a company
organized under the laws of the British Virgin Islands, ChipPAC, Inc., a
Delaware corporation, ChipPAC International Company Limited, a company
organized under the laws of the British Virgin Islands, ChipPAC Liquidity
Management Hungary Limited Liability Company, a limited liability company
organized under the laws of Hungary, ChipPAC Luxembourg S.a.R.L., a
company organized under the laws of Luxembourg, STATS ChipPAC (Barbados)
Ltd., a company organized under the laws of Barbados, STATS ChipPAC (BVI)
Limited, a company organized under the laws of the British Virgin Islands
and STATS ChipPAC Malaysia;
(2) STATS ChipPAC Korea Ltd., if the Korea Approvals are obtained;
and
(3) any other Subsidiary of the Company that executes a Note
Guarantee in accordance with the provisions of this Indenture,
and their respective successors and assigns, in each case, until the Note
Guarantee of such Person has been released in accordance with the provisions of
this Indenture and the Subsidiary Guarantee Agreement.
"Hedging Obligations" of any Person means the obligations of the Person
under any Interest Rate Agreement or Currency Agreement.
"Holder" means a Person in whose name a Note is registered.
"Incur" means issue, assume, Guarantee, incur or otherwise become liable
for; provided, however, that any Indebtedness or Capital Stock of a Person
existing at the time the Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) will be considered to be Incurred by
the Subsidiary at the time it becomes a Subsidiary. The term "Incurrence" when
used as a noun shall have a correlative meaning. The accretion of principal of a
non-interest bearing or other discount security, and the issuance as interest or
dividend payments of pay-in-kind securities having identical terms to the
underlying security and which pay-in-kind securities were contemplated on the
issue date of the underlying security, in each case shall not be deemed the
Incurrence of Indebtedness.
"Indebtedness" of any Person on any date of determination means, without
duplication:
(1) the principal of and premium, if any, of (A) indebtedness of the
Person for money borrowed and (B) indebtedness evidenced by notes,
debentures, bonds or other similar instruments for the payment of which
the Person is responsible or liable;
(2) all Capital Lease Obligations of the Person and all Attributable
Debt of Sale/Leaseback Transactions entered into by the Person;
(3) all obligations of the Person issued or assumed as the deferred
purchase price of property, all conditional sale obligations of the Person
and all obligations of the Person under any title retention agreement, but
excluding trade accounts and accrued expenses payable arising in the
ordinary course of business;
(4) all obligations of the Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction, other than obligations under letters of
10
credit securing obligations, other than obligations described in clauses
(1) through (3) above, entered into in the ordinary course of business of
the Person to the extent the letters of credit are not drawn upon or, if
and to the extent drawn upon, the drawing is reimbursed no later than the
tenth business day following payment on the letter of credit;
(5) the amount of all obligations of the Person relating to the
redemption, repayment or other repurchase of any Disqualified Stock or,
relating to any Subsidiary of the Person, the liquidation preference
relating to, any Preferred Stock, but excluding, in each case, any accrued
dividends;
(6) all obligations of the type referred to in clauses (1) through
(5) of other Persons and all dividends of other Persons for the payment of
which, in either case, the Person is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise, including by means of any
Guarantee;
(7) all obligations of the type referred to in clauses (1) through
(6) of other Persons secured by any Lien on any property or asset of the
Person, whether or not the obligation is assumed by the Person, the amount
of the obligation being deemed to be the lesser of the value of the
property or assets or the amount of the obligation so secured; and
(8) to the extent not otherwise included in this definition, Hedging
Obligations of the Person.
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at the date of all unconditional obligations as described above and the
maximum liability, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations at the date; provided, however, that
the amount outstanding at any time of any Indebtedness issued with original
issue discount will be considered to be the face amount of the Indebtedness less
the remaining unamortized portion of the original issue discount of the
Indebtedness at the time as determined in compliance with U.S. GAAP.
"Indenture" means this Indenture, as amended or supplemented from time to
time.
"Indirect Participant" means a Person who holds a beneficial interest in a
Global Note through a Participant.
"Initial Notes" means the first $215.0 million aggregate principal amount
of Notes issued under this Indenture on the date hereof.
"Initial Purchasers" means Deutsche Bank AG, Singapore Branch and Lehman
Brothers International (Europe).
"Interest Rate Agreement" of a Person means any interest rate swap
agreement, interest rate cap agreement or other financial agreement or
arrangement designed to protect the Person against fluctuations in interest
rates.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.
"Investments" by any Person means all investments by the Person in other
Persons in the forms of any direct or indirect advance, loan other than (a)
advances to customers in the ordinary course of business that are recorded as
accounts receivable on the balance sheet of the lender and (b) commission,
11
travel and similar advances to officers and employees made in the ordinary
course of business, or other extensions of credit, including by way of Guarantee
or similar arrangement, or capital contribution to, by means of any transfer of
cash or other property to others or any payment for property or services for the
account or use of others, or any purchase or acquisition of Capital Stock,
Indebtedness or other similar instruments issued by the other Person. For
purposes of the definition of "Unrestricted Subsidiary," the definition of
"Restricted Payment" and Section 4.07 hereof:
(1) "Investment" shall include the portion, proportionate to the
Company's equity interest in the Subsidiary, of the Fair Market Value of
the net assets of any Subsidiary of the Company at the time that the
Subsidiary is designated an Unrestricted Subsidiary; provided, however,
that upon a redesignation of the Subsidiary as a Restricted Subsidiary,
the Company will be considered to continue to have a permanent
"Investment" in an Unrestricted Subsidiary equal to an amount, if
positive, equal to (x) the Company's "Investment" in the Subsidiary at the
time of the redesignation less (y) the portion, proportionate to the
Company's equity interest in the Subsidiary, of the Fair Market Value of
the net assets of the Subsidiary at the time of the redesignation; and
(2) any property transferred to or from an Unrestricted Subsidiary
shall be valued at its Fair Market Value at the time of the transfer.
"Issue Date" means the date hereof.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Letter of Transmittal" means the letter of transmittal to be prepared by
the Company and sent to all Holders of the Notes for use by such Holders in
connection with the Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
"Liquidated Damages" means all liquidated damages then owing pursuant to
the Registration Rights Agreement.
"Merger" means the merger between ChipPAC, Inc. and Camelot Merger, Inc.
pursuant to the Agreement and Plan of Merger and Reorganization, dated as of
February 10, 2004, among ST Assembly Test Services Ltd, Camelot Merger, Inc. and
ChipPAC, Inc.
"Moody's" means Moody's Investors Service, Inc.
"Multi-Currency Specific Advance Facility" means that certain
Multi-Currency Specific Advance Facility by and between the Company and the
Oversea-Chinese Banking Corporation Limited pursuant to the letter agreements
dated September 29, 2004 and July 11, 2003, providing for up to $50.0 million of
credit borrowings, as amended, notated, modified, renewed, refunded, replaced
(whether upon
12
termination or otherwise) or refinanced (including by means of sales of debt
securities to institutional investors) in whole or in part from time to time.
"Net Cash Proceeds" relating to any issuance or sale of Capital Stock,
means the cash proceeds of the issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with the issuance or sale and net of taxes paid or payable as a
result the issuance or sale and any reserve for adjustment in the sale price of
the asset or assets established in compliance with U.S. GAAP.
"Net Proceeds" means the aggregate cash proceeds received by the Company
or any of the Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of the direct costs
relating to such Asset Sale, including, without limitation, legal, accounting
and investment banking fees, and sales commissions, and any relocation expenses
incurred as a result of the Asset Sale, taxes paid or payable as a result of the
Asset Sale, in each case, after taking into account any available tax credits or
deductions and any tax sharing arrangements, and amounts required to be applied
to the repayment of Indebtedness, other than Specified Senior Indebtedness,
secured by a Lien on the asset or assets that were the subject of such Asset
Sale, and any reserve for adjustment in respect of the sale price of such asset
or assets established in accordance with U.S. GAAP against any liabilities
associated with the transaction and retained by the Company or any of its
Restricted Subsidiaries after such sale or other disposition thereof, including,
without limitation, pension and other post-employment benefit liabilities and
liabilities related to environmental matters or against any indemnification
obligations associated with such transaction.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note Guarantee" means the Guarantee by each Guarantor of the Company's
obligations under this Indenture and the Notes, executed pursuant to the
provisions of this Indenture or the Subsidiary Guarantee Agreement.
"Notes" has the meaning assigned to it in the preamble to this Indenture.
The Initial Notes and the Additional Notes shall be treated as a single class
for all purposes under this Indenture, and unless the context otherwise
requires, all references to the Notes shall include the Initial Notes and any
Additional Notes.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 11.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is reasonably
acceptable to the Trustee, that meets the requirements of Section 11.05 hereof.
The counsel may be an employee of or counsel to the Company, any Subsidiary of
the Company or the Trustee.
13
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
"Permitted Holder" means each of Temasek Holdings (Private) Limited,
Singapore Technologies Holdings Pte Ltd., Singapore Technologies Pte Ltd. and
Singapore Technologies Semiconductors Pte Ltd. and their respective successors
and assigns.
"Permitted Investments" means an Investment by the Company or any
Restricted Subsidiary in:
(1) a Restricted Subsidiary that is a Guarantor or a Person that
will, upon the making of the Investment, become a Restricted Subsidiary
that is a Guarantor; provided, however, that the primary business of such
Restricted Subsidiary is a Related Business;
(2) another Person if as a result of the Investment the other Person
is merged or consolidated with or into, or transfers or conveys all or
substantially all its assets to, the Company or a Restricted Subsidiary
that is a Guarantor; provided, however, that such Person's primary
business is a Related Business;
(3) Temporary Cash Investments;
(4) receivables owing to the Company or any Restricted Subsidiary if
created or acquired in the ordinary course of business and payable or
dischargeable on customary trade terms; provided, however, that the trade
terms may include the concessionaire trade terms as the Company or the
Restricted Subsidiary deems reasonable under the circumstances;
(5) Investments in existence on the Issue Date;
(6) payroll, travel and similar advances to cover matters that are
expected at the time of the advances ultimately to be treated as expenses
for accounting purposes and that are made in the ordinary course of
business;
(7) loans or advances to employees, directors, officers or
consultants made in the ordinary course of the Company's business or that
of the Restricted Subsidiary;
(8) any Person to the extent that such Person is a supplier (or an
Affiliate thereof) to the Company or any of its Restricted Subsidiaries
and as a result of such Investment, the Company or such Restricted
Subsidiary receives improved technology or materially improved pricing,
timing of delivery or availability with respect to the products or
services provided by such supplier; provided that such Investment is made
in the ordinary course of business and consistent in scale and scope with
past practice of the Company or the applicable Restricted Subsidiary;
(9) stock, obligations or securities received in settlement of debts
created in the ordinary course of business and owing to the Company or any
Restricted Subsidiary or in satisfaction of judgments;
(10) any Person to the extent the Investment represents the non-cash
portion of the consideration received for an Asset Sale that was made
pursuant to and in compliance with Section 4.10 hereof;
14
(11) Currency Agreements and Interest Rate Agreements entered into
in the ordinary course of business and otherwise in compliance with this
Indenture;
(12) so long as no Default shall have occurred and be continuing or
results from the Investment, any Person in an aggregate amount which, when
added together with the amount of all the Investments made under this
clause (12) which at the time of the Investment have not been repaid
through repayments of loans or advances or other transfers of assets, does
not exceed the greater of (A) $60.0 million and (B) 5.0% of Total Assets,
with the Fair Market Value of each Investment being measured at the time
made and without giving effect to subsequent changes in value;
(13) a Restricted Subsidiary that is not Guarantor, that is
organized under the laws of the Peoples Republic of China and that is
primarily engaged in a Related Business, which Investment is solely for
the purpose of allowing such Restricted Subsidiary, under the laws of the
Peoples Republic of China, to (x) make capital expenditures or (y) acquire
other assets that are not classified as current assets under U.S. GAAP and
that are used or useful in such Related Business, in each case, so long as
that for every $1.00 invested in such Restricted Subsidiary at least $3.00
are expended to (A) make a capital expenditure or (B) acquire other assets
that are not classified as current assets under U.S. GAAP and that are
useful in such Related Business, but in any event not to exceed $35.0
million in Investments under this clause (13) in the aggregate in any
twelve-month period;
(14) Investments the payment for which consists of Equity Interests
of the Company (other than Disqualified Stock);
(15) Guarantees of Indebtedness permitted under Section 4.09 hereof
and performance guarantees consistent with past practice;
(16) any Investment acquired by the Company or any of its Restricted
Subsidiaries (A) in exchange for any other Investment or accounts
receivables held by the Company or any such Restricted Subsidiary in
connection with or as a result of a bankruptcy, workout, reorganization or
recapitalization of the issuer of such other Investment or accounts
receivable or (B) as a result of a foreclosure by the Company or any of
its Restricted Subsidiaries with respect to any secured Investment or
other transfer of title with respect to any secured investment in default;
(17) Investments consisting of licensing or contribution of
intellectual property pursuant to joint marketing arrangements with other
Persons entered into in the ordinary course of business and consistent in
scale and scope with past practice; and
(18) Simmtech Co. Ltd. pursuant to contractual relationships in
effect on the Issue Date.
"Permitted Liens" means:
(1) Liens on assets of the Company or any Guarantor securing
Indebtedness and other Obligations under Credit Facilities that was
permitted by the terms of this Indenture to be incurred and/or securing
Hedging Obligations related thereto;
(2) Liens in favor of the Company or any Guarantor;
(3) Liens on property of a Person existing at the time such Person
is merged with or into or consolidated with the Company or any Subsidiary
of the Company; provided that such Liens
15
were in existence prior to the contemplation of such merger or
consolidation and do not extend to any assets other than those of the
Person merged into or consolidated with the Company or the Subsidiary;
(4) Liens on property (including Capital Stock) existing at the time
of acquisition of the property by the Company or any Subsidiary of the
Company; provided that such Liens were in existence prior to, such
acquisition, and not incurred in contemplation of, such acquisition;
(5) Liens (or deposits of cash or government bonds) in favor of
issuers of performance, surety bid, indemnity, warranty, release, appeal
or similar bonds to secure such bonds or with respect to other regulatory
requirements or letters of credit or bankers' acceptances issued, and
completion guarantees provided for, in each case, incurred in the ordinary
course of business and consistent with past practice;
(6) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by clause (b)(14) of Section 4.09 hereof covering
only the assets acquired with or financed by such Indebtedness;
(7) Liens existing on the Issue Date;
(8) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded or
for property taxes on property that the Company or one of its Subsidiaries
has determined to abandon if the sole recourse for such tax, assessment,
charge, levy or claim is to such property; provided that any reserve or
other appropriate provision as is required in conformity with U.S. GAAP
has been made therefor;
(9) Liens imposed by law, such as carriers', warehousemen's,
landlord's and mechanics' Liens, in each case, incurred in the ordinary
course of business;
(10) survey exceptions, easements or reservations of, or rights of
others for, licenses, rights-of-way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other
restrictions as to the use of real property that were not incurred in
connection with Indebtedness and that do not in the aggregate materially
adversely affect the value of said properties or materially impair their
use in the operation of the business of such Person;
(11) Liens created for the benefit of (or to secure) the Notes (or
the Note Guarantees);
(12) Liens to secure any Refinancing Indebtedness permitted to be
incurred under this Indenture; provided, however, that:
(a) the new Lien shall be limited to all or part of the same
property and assets that secured or, under the written agreements pursuant
to which the original Lien arose, could secure the original Lien (plus
improvements and accessions to, such property or proceeds or distributions
thereof); and
(b) the Indebtedness secured by the new Lien is not increased
to any amount greater than the sum of (x) the outstanding principal
amount, or, if greater, committed amount, of the Refinancing Indebtedness
permitted hereunder and (y) an amount necessary to pay any fees and
expenses, including premiums, related to such renewal, refunding,
refinancing, replacement, defeasance or discharge;
16
(13) attachment or judgment Liens in respect of judgments that do
not constitute an Event of Default so long as such Liens are adequately
bonded and any appropriate legal proceedings that may have been duly
initiated in good faith for the review of such judgment have not been
finally terminated or the period within such proceedings may be initiated
has not expired;
(14) pledges, deposits or security under workmen's compensation,
unemployment insurance and other social security laws or regulations, or
deposits to secure the performance of tenders, contracts (other than for
the payment of Indebtedness) or leases, or deposits to secure public or
statutory obligations, or deposits as security for import or customs
duties or for the payment of rent, or deposits or other security securing
liabilities to insurance carriers under insurance or self-insurance
arrangements, in each case incurred in the ordinary course of business and
consistent with past practice;
(15) Liens in favor of the Trustee with respect to the Notes for its
own benefit and for the benefit of the Holders of the Notes;
(16) pledges or deposits made in connection with acquisition
agreements or letters of intent entered into in respect of a proposed
acquisition;
(17) Liens upon specific items of inventory or other goods and
proceeds of that Person securing that Person's obligations in respect of
bankers' acceptances issued or credited for the account of that Person in
the ordinary course of business to facilitate the purchase, shipment or
storage of that inventory or other goods;
(18) Liens securing reimbursement obligations with respect to
commercial letters of credit issued for the account of that Person which
encumber documents and other Property relating to those commercial letters
of credit and the products and proceeds thereof;
(19) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods by that Person;
(20) banker's Liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a
depositary institution; provided that (a) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions
against access by the Company in excess of those set forth by regulations
promulgated by the Federal Reserve Board or other applicable law and (b)
such deposit account is not intended by the Company or any Restricted
Subsidiary to provide collateral to the depositary institution;
(21) Liens arising from Uniform Commercial Code financing statement
filings regarding operating leases or consignments entered into by the
Company and its Restricted Subsidiaries in the ordinary course of
business; and
(22) Liens incurred in the ordinary course of business of the
Company or any Subsidiary of the Company with respect to obligations that
do not exceed $15.0 million at any one time outstanding.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
"Preferred Stock" as applied to the Capital Stock of any Person, means
Capital Stock of any class or classes however designated which is preferred as
to the payment of dividends or distributions, or
17
as to the distribution of assets upon any voluntary or involuntary liquidation
or dissolution of the Person, over shares of Capital Stock of any other class of
the Person.
"Private Placement Legend" means the legend set forth in Section
2.06(g)(1) hereof to be placed on all Notes issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
"Pro Forma Cost Savings" during any period means the reduction in costs
that were:
(1) directly attributable to an asset acquisition and calculated on
a basis that is consistent with Regulation S-X under the Securities Act in
effect and applied as of the Issue Date, or
(2) implemented by the business that was the subject of the asset
acquisition within six months of the date of the asset acquisition and
that are supportable and quantifiable by the underlying accounting records
of the business,
as if, in the case of each of clause (1) and (2), all the reductions in costs
had been effected as of the beginning of the period.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Refinance" of any Indebtedness means to refinance, extend, renew, refund,
repay, prepay, redeem, defease or retire, or to issue other Indebtedness in
exchange or replacement for, the indebtedness. "Refinanced" and "Refinancing"
shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances any
Indebtedness of the Company or any Restricted Subsidiary existing on the Issue
Date or Incurred in compliance with this Indenture, including Indebtedness that
Refinances Refinancing Indebtedness; provided, however, that
(1) the Refinancing Indebtedness has a Stated Maturity no earlier
than the Stated Maturity of the Indebtedness being Refinanced;
(2) the Refinancing Indebtedness has an Average Life at the time the
Refinancing Indebtedness is Incurred that is equal to or greater than the
Average Life of the Indebtedness being Refinanced; and
(3) the Refinancing Indebtedness has an aggregate principal amount,
or if Incurred with original issue discount, an aggregate issue price,
that is equal to or less than the aggregate principal amount, or if
Incurred with original issue discount, the aggregate accreted value, then
outstanding or committed, plus fees and expenses, including any premium
and defeasance costs, under the Indebtedness being Refinanced;
provided, further, that Refinancing Indebtedness shall not include (x)
Indebtedness of a Subsidiary that Refinances Indebtedness of the Company or (y)
Indebtedness of the Company or a Restricted Subsidiary that Refinances
Indebtedness of an Unrestricted Subsidiary.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of the date hereof, among the Company, the Guarantors and the other
parties named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time and, with respect to any Additional
Notes, one or more registration rights agreements among the Company, the
Guarantors and the other parties thereto, as such agreement(s) may be amended,
modified or supplemented from time to time,
18
relating to rights given by the Company to the purchasers of Additional Notes to
register such Additional Notes under the Securities Act.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Note" means a Global Note substantially in the form
of Exhibit A hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of and registered in the name of the
Depositary or its nominee, issued in a denomination equal to the outstanding
principal amount of the Notes sold in reliance on Rule 903 of Regulation S.
"Related Business" means any business related, ancillary or complementary
to the businesses of the Company and those of its Restricted Subsidiaries on the
Issue Date.
"Related Person" means: (1) any controlling stockholder or 80% (or more)
owned Subsidiary of any Permitted Holder or (2) any trust, corporation,
partnership, limited liability company or other entity, the beneficiaries,
stockholders, partners, members, owners or Persons beneficially holding an 80%
or more controlling interest of which consists of any Permitted Holder and/or
such other Persons referred to in the immediately preceding clause (1).
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Definitive Note" means a Definitive Note bearing the Private
Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private Placement
Legend.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Payment" of any Person means:
(1) the declaration or payment of any dividends or any other
distributions of any sort relating to its Capital Stock, including any
payment in connection with any merger or consolidation involving the
Person, or similar payment to the direct or indirect holders of its
Capital Stock in their capacity as such, other than dividends or
distributions payable solely in its Capital Stock other than Disqualified
Stock, and dividends or distributions payable solely to the Company or a
Restricted Subsidiary, and other than pro rata dividends or other
distributions made by a Subsidiary that is not a Wholly Owned Subsidiary
to minority stockholders, majority stockholders or owners of an equivalent
interest in the case of a Subsidiary that is an entity other than a
corporation;
(2) the purchase, redemption or other acquisition or retirement for
value of any Capital Stock of the Company held by any Person or of any
Capital Stock of a Restricted Subsidiary held by any Affiliate of the
Company other than a Restricted Subsidiary, including the exercise of any
option to exchange any Capital Stock, other than into Capital Stock of the
Company that is not Disqualified Stock;
(3) the purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value, prior to scheduled maturity,
scheduled repayment or scheduled sinking fund payment
19
of any Subordinated Obligations, other than the purchase, repurchase or
other acquisition of Subordinated Obligations purchased in anticipation of
satisfying a sinking fund obligation, principal installment or final
maturity, in each case due within one year of such purchase, repurchase or
acquisition; or
(4) the making of any Investment in any Person other than a
Permitted Investment.
In determining the amount of any Restricted Payment made in property other than
cash, the amount shall be the fair market value of the property at the time of
the Restricted Payment.
"Restricted Period" means the 40-day distribution compliance period as
defined in Regulation S.
"Restricted Subsidiary" means any Subsidiary of the Company that is not an
Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"S&P" means Standard & Poor's Ratings Group.
"Sale/Leaseback Transaction" means an arrangement relating to property now
owned or hereafter acquired whereby the Company or a Restricted Subsidiary
transfers the property to a Person and the Company or a Restricted Subsidiary
leases it from the Person. Notwithstanding the foregoing, any transfer of
property by the Company or a Restricted Subsidiary to a Person within 90 days of
such property's acquisition by the Company or such Restricted Subsidiary that is
then leased back to the Company or such Restricted Subsidiary at any time
following such transfer shall not be considered a Sale/Leaseback Transaction.
"SEC" means the U.S. Securities and Exchange Commission.
"Securities Act" means the U.S. Securities Act of 1933, as amended.
"Shelf Registration Statement" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would be a "significant
subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect on the date of
this Indenture.
"Specified Senior Indebtedness" means (i) the Indebtedness of any Person,
whether outstanding on the Issue Date or thereafter incurred and (ii) accrued
and unpaid interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to such Person to the
extent post filing interest is allowed in such proceeding) in respect of (A)
Indebtedness of such Person for money borrowed and (B) Indebtedness evidenced by
notes, debentures, bonds or other similar instruments for the payment of which
such Person is responsible or liable unless, in the case of either clause (i) or
(ii), in the instrument creating or evidencing the same pursuant to which the
same is outstanding, it is
20
provided, that such obligations are subordinate in right of payment to the
Notes; provided, however, that Specified Senior Indebtedness shall not include
(1) any obligation of such Person to any Subsidiary of such Person, (2) any
liability for Federal, state, local, foreign or other taxes owed or owing by
such Person, (3) any accounts payable or other liability to trade creditors
arising in the ordinary course of business (including Guarantees thereof or
instruments evidencing such liabilities), (4) any obligations in respect of
Capital Stock of such Person or (5) that portion of any Indebtedness which at
the time of incurrence is incurred in violation of this Indenture.
"Stated Maturity" of any security means the date specified in the security
as the fixed date on which the final payment of principal of the security is due
and payable, including under any mandatory redemption provision, but excluding
any provision providing for the repurchase of the security at the option of the
holder upon the happening of any contingency unless the contingency has
occurred.
"STATS ChipPAC China" means each of STATS ChipPAC Shanghai Co., Ltd.
(formerly ChipPAC (Shanghai) Company Ltd) and STATS ChipPAC Test Services
(Shanghai) Co., Ltd. (formerly STATS Shanghai Ltd).
"STATS ChipPAC Korea" means STATS ChipPAC Korea Ltd. (formerly ChipPAC
Korea Company Ltd.).
"STATS ChipPAC Malaysia" means STATS ChipPAC Malaysia Sdn. Bhd. (formerly
ChipPAC Malaysia Sdn. Bhd.).
"Subordinated Note Indenture" means that certain indenture, dated as of
May 28, 2003, between ChipPAC, Inc. and U.S. Bank National Association, as
trustee, as amended or supplemented from time to time, relating to the
Subordinated Notes.
"Subordinated Notes" mean the 2.50% Convertible Subordinated Notes due
2008 of ChipPAC, Inc. issued pursuant to the Subordinated Note Indenture.
"Subordinated Obligation" means any Indebtedness of the Company or any
Guarantor, whether outstanding on the Issue Date or thereafter Incurred, which
is subordinate or junior in right of payment to, in the case of the Company, the
Notes or, in the case of any Guarantor, its Guarantee, under a written agreement
to that effect.
"Subsidiary" means, with respect to any specified Person:
(1) any corporation, association or other business entity of which
more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency and after
giving effect to any voting agreement or stockholders' agreement that
effectively transfers voting power) to vote in the election of directors,
managers or trustees of the corporation, association or other business
entity is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person (or a
combination thereof); and
(2) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or
(b) the only general partners of which are that Person or one or more
Subsidiaries of that Person (or any combination thereof).
"Subsidiary Guarantee Agreement" means that certain Subsidiary Guarantee
Agreement dated as of the date hereof made by STATS ChipPAC, Inc., a Delaware
corporation, STATS Holdings
21
Limited, a corporation organized under the laws of the British Virgin Islands,
ChipPAC, Inc., a Delaware corporation, STATS ChipPAC Test Services, Inc., a
Delaware corporation, STATS ChipPAC (Barbados) Ltd., a corporation organized
under the laws of Barbados, ChipPAC International Company Limited, a corporation
organized under the laws of the British Virgin Islands, STATS ChipPAC (BVI)
Limited, a corporation organized under the laws of the British Virgin Islands,
ChipPAC Luxembourg S.a.R.L., a corporation organized under the laws of
Luxembourg, ChipPAC Liquidity Management Hungary Limited, a limited liability
company organized under the laws of Hungary, STATS ChipPAC Korea Ltd., a
corporation organized under the laws of Korea, and STATS ChipPAC Malaysia Sdn.
Bhd., a corporation organized under the laws of Malaysia, in favor of the
Holders of the Notes and the Trustee, in the form attached as Exhibit G to this
Indenture.
"Temporary Cash Investments" means any of the following:
(1) any evidence of Indebtedness, maturing not more than one year
after the date of investment by the Company or any Restricted Subsidiary,
issued by the United States of America or any of its instrumentality
agencies, or by the Republic of Korea, the Republic of Singapore or any of
their respective instrumentalities or agencies, or by the Asian
Development Bank, the World Bank or any other supranational organization,
referred to as the "Government Entities," and guaranteed or otherwise
backed, directly or indirectly fully as to principal, premium, if any, and
interest, by the Government Entity issuing the indebtedness;
(2) investments in time deposit accounts, certificates of deposit
and money market deposits maturing within 180 days of the date of the
investments' acquisition issued by a bank or trust company which is
organized under the laws of the United States of America, any state of the
United States or any foreign country recognized by the United States, and
which bank or trust company has capital, surplus and undivided profits
aggregating in excess of $250.0 million, or the foreign currency
equivalent thereof, and has outstanding debt which is rated "A," or a
similar equivalent rating, or higher by at least one nationally recognized
statistical rating organization, as defined in Rule 436 under the
Securities Act, or any money-market fund sponsored by a registered broker
dealer or mutual fund distributor;
(3) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (1) above entered
into with a bank meeting the qualifications described in clause (2) above;
(4) investments in commercial paper, maturing not more than 90 days
after the date of acquisition, issued by a corporation, other than an
Affiliate of the Company, organized and in existence under the laws of the
United States of America or any foreign country recognized by the United
States of America with a rating at the time as of which any investment
therein is made of "P-1" or higher according to Moody's or "A-1" or higher
according to S & P; and
(5) investments in securities with maturities of six months or less
from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States of America, or by any
political subdivision or taxing authority of the United States, and rated
at least "A" by S&P or "A" by Moody's.
"TIA" means the Trust Indenture Act of 1939, as amended (15
U.S.C. Sections 77aaa-77bbbb).
22
"Total Assets" means the total consolidated assets less goodwill of the
Company and those of its Guarantors, as provided in the most recent consolidated
balance sheet of the Company.
"Treasury Rate" means, as of any redemption date, the yield to maturity as
of such redemption date of United States Treasury securities with a constant
maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15 (519) that has become publicly available at least two
business days prior to the redemption date (or, if such Statistical Release is
no longer published, any publicly available source of similar market data)) most
nearly equal to the period from the redemption date to November 15, 2008;
provided, however, that if the period from the redemption date to November 15,
2008, is less than one year, the weekly average yield on actually traded United
States Treasury securities adjusted to a constant maturity of one year will be
used.
"Trustee" means U.S. Bank National Association until a successor replaces
it in accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.
"Unrestricted Definitive Note" means a Definitive Note that does not bear
and is not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a Global Note that does not bear and is
not required to bear the Private Placement Legend.
"Unrestricted Subsidiary" means (1) Winstek Semiconductor Corporation
unless and until such entity is designated a Restricted Subsidiary in accordance
with the provisions of this Indenture, (2) any Subsidiary of the Company that at
the time of determination shall be designated an Unrestricted Subsidiary by the
Board of Directors of the Company in the manner provided below and (3) any
Subsidiary of an Unrestricted Subsidiary of the Company. The Board of Directors
of the Company may designate any Subsidiary of the Company, including any newly
acquired or newly formed Subsidiary, to be an Unrestricted Subsidiary unless the
Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of,
or holds any Lien on any property of, the Company or any other Subsidiary of the
Company that is not a Subsidiary of the Subsidiary to be so designated;
provided, however, that either (A) the Subsidiary to be so designated has total
assets of $1,000 or less or (B) if the Subsidiary has assets greater than
$1,000, the designation would be permitted under Section 4.07 hereof. The Board
of Directors of the Company may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided, however, that immediately after giving effect
to the designation (x) the Company could Incur $1.00 of additional Indebtedness
under paragraph (a) of Section 4.09 hereof and (y) no Default shall have
occurred and be continuing. The designation by the Board of Directors of the
Company shall be evidenced to the Trustee by promptly filing with the Trustee a
copy of the resolution of the Board of Directors giving effect to the
designation and an Officers' Certificate certifying that the designation
complied with these provisions.
"U.S. Dollar Equivalent" of any monetary amount in a currency other than
U.S. dollars means, at any time for determination thereof, the amount of U.S.
dollars obtained by converting the foreign currency involved in the computation
into U.S. dollars at the spot rate for the purchase of U.S. dollars with the
applicable foreign currency as published in The Wall Street Journal in the
"Exchange Rates" column under the heading "Currency Trading" on the date two
business days prior to the determination.
Except as described under Section 4.09 hereof, whenever it is necessary to
determine whether the Company has complied with any covenant herein or a Default
has occurred and an amount is expressed in a currency other than U.S. dollars,
the amount will be treated as the U.S. Dollar Equivalent determined as of the
date the amount is initially determined in the currency.
23
"U.S. GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect on the Issue Date.
"U.S. Person" means a U.S. Person as defined in Rule 902(k) promulgated
under the Securities Act.
"Voting Stock" of any specified Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount
of each then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in
respect of the Indebtedness, by (b) the number of years (calculated to the
nearest one-twelfth) that will elapse between such date and the making of
such payment; by
(2) the then outstanding principal amount of such Indebtedness.
"Wholly Owned Subsidiary" means a Restricted Subsidiary the Capital Stock
of which (other than directors' qualifying shares) is at least 95% owned by the
Company or one or more Wholly Owned Subsidiaries.
Section 1.02 Other Definitions.
Defined in
Term Section
- ---- -----------
"Additional Amounts" ........................... 4.19
"Affiliate Transaction"......................... 4.11
"Asset Sale Offer".............................. 3.09
"Authentication Order".......................... 2.02
"Change of Control Offer"....................... 4.15
"Change of Control Payment"..................... 4.15
"Change of Control Payment Date"................ 4.15
"Covenant Defeasance"........................... 8.03
"DTC"........................................... 2.03
"Event of Default".............................. 6.01
"Excess Proceeds"............................... 4.10
"Foreign Jurisdiction Merger" .................. 5.01
"incur"......................................... 4.09
"Korea Approvals" .............................. 4.16
"Korea Deadline" ............................... 4.16
"Korea Guarantee" .............................. 4.16
"Korea Guarantee Offer" ........................ 4.16
"Korea Guarantee Offer Event" .................. 4.16
"Korea Guarantee Offer Payment Date" ........... 4.16
"Korea Guarantee Payment" ...................... 4.16
24
Defined in
Term Section
- ---- ----------
"Legal Defeasance".............................. 8.02
"Offer Amount".................................. 3.09
"Offer Period".................................. 3.09
"Paying Agent".................................. 2.03
"Payment Default" .............................. 6.01
"Purchase Date" ................................ 3.09
"Process Agent" ................................ 11.11
"Registrar"..................................... 2.03
"Relevant Jurisdiction" ........................ 4.19
"Successor Company" ............................ 5.01
"Trigger Percentage............................. 4.13
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes and the Note Guarantees means the Company and the
Guarantors, respectively, and any successor obligor upon the Notes and the Note
Guarantees, respectively.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with U.S. GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) "will" shall be interpreted to express a command;
(6) provisions apply to successive events and transactions; and
25
(7) references to sections of or rules under the Securities Act will
be deemed to include substitute, replacement of successor sections or
rules adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating.
(a) General. The Notes and the Trustee's certificate of authentication
will be substantially in the form of Exhibits A hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note will be dated the date of its authentication. The Notes shall
be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes will constitute, and are
hereby expressly made, a part of this Indenture and the Company and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby. However, to the extent any provision of
any Note conflicts with the express provisions of this Indenture, the provisions
of this Indenture shall govern and be controlling.
(b) Global Notes. Notes issued in global form will be substantially in the
form of Exhibit A1 hereto (including the Global Note Legend thereon and the
"Schedule of Exchanges of Interests in the Global Note" attached thereto). Notes
issued in definitive form will be substantially in the form of Exhibit A hereto
(but without the Global Note Legend thereon and without the "Schedule of
Exchanges of Interests in the Global Note" attached thereto). Each Global Note
will represent such of the outstanding Notes as will be specified therein and
each shall provide that it represents the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding Notes represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges and redemptions.
Any endorsement of a Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Notes represented
thereby will be made by the Trustee or the Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.06 hereof.
Section 2.02 Execution and Authentication.
At least one Officer must sign the Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Note no longer holds that office at
the time a Note is authenticated, the Note will nevertheless be valid.
A Note will not be valid until authenticated by the manual signature of
the Trustee. The signature will be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Company signed by
an Officer (an "Authentication Order"), authenticate Notes for original issue
that may be validly issued under this Indenture, including any Additional Notes.
The aggregate principal amount of Notes outstanding at any time may not exceed
the aggregate principal amount of Notes authorized for issuance by the Company
pursuant to one or more Authentication Orders, except as provided in Section
2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Notes. An authenticating agent may authenticate Notes whenever
the Trustee may do so. Each reference
26
in this Indenture to authentication by the Trustee includes authentication by
such agent. An authenticating agent has the same rights as an Agent to deal with
Holders or an Affiliate of the Company.
Section 2.03 Registrar and Paying Agent.
The Company will maintain an office or agency where Notes may be presented
for registration of transfer or for exchange ("Registrar") and an office or
agency where Notes may be presented for payment ("Paying Agent"). The Registrar
will keep a register of the Notes and of their transfer and exchange. The
Company may appoint one or more co-registrars and one or more additional paying
agents. The term "Registrar" includes any co-registrar and the term "Paying
Agent" includes any additional paying agent. The Company may change any Paying
Agent or Registrar without notice to any Holder. The Company will notify the
Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to act
as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Custodian with respect to the Global Notes. In
addition, so long as the Notes are listed on Singapore Exchange Securities
Trading Limited (the "SGX-ST") and the rules of the SGX-ST so require, the
Company shall also appoint and maintain a Registrar and Paying Agent in
Singapore, where Notes may be presented for registration, payment or redemption,
in the event that a Global Note is exchanged for a Definitive Note.
Section 2.04 Paying Agent to Hold Money in Trust.
The Company will require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent will hold in trust for the benefit of Holders
or the Trustee all money held by the Paying Agent for the payment of principal,
premium or Liquidated Damages, if any, or interest on the Notes, and will notify
the Trustee of any default by the Company in making any such payment. While any
such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary) will have no further
liability for the money. If the Company or a Subsidiary acts as Paying Agent, it
will segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee will serve as Paying Agent for
the Notes.
Section 2.05 Holder Lists.
The Trustee will preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company will furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA Section 312(a).
27
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred except as a whole by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged by
the Company for Definitive Notes if:
(1) the Company delivers to the Trustee notice from the Depositary
that it is unwilling or unable to continue to act as Depositary or that it
is no longer a clearing agency registered under the Exchange Act and, in
either case, a successor Depositary is not appointed by the Company within
120 days after the date of such notice from the Depositary;
(2) the Company in its sole discretion determines that the Global
Notes (in whole but not in part) should be exchanged for Definitive Notes
and delivers a written notice to such effect to the Trustee; or
(3) there has occurred and is continuing a Default or Event of
Default with respect to the Notes.
Upon the occurrence of either of the preceding events in (1) or (2) above,
Definitive Notes shall be issued in such names as the Depositary shall instruct
the Trustee. Global Notes also may be exchanged or replaced, in whole or in
part, as provided in Sections 2.07 and 2.10 hereof. Every Note authenticated and
delivered in exchange for, or in lieu of, a Global Note or any portion thereof,
pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Note. A
Global Note may not be exchanged for another Note other than as provided in this
Section 2.06(a), however, beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The
transfer and exchange of beneficial interests in the Global Notes will be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes will be subject to restrictions on transfer comparable to those set
forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also will require compliance with
either subparagraph (1) or (2) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend; provided, however,
that prior to the expiration of the Restricted Period, transfers of
beneficial interests in the Regulation S Global Note may not be made to a
U.S. Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser). Beneficial interests in any Unrestricted Global Note
may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to effect
the transfers described in this Section 2.06(b)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.06(b)(1) above, the transferor
of such beneficial interest must deliver to the Registrar either:
28
(A) both:
(i) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to
be credited a beneficial interest in another Global Note in an
amount equal to the beneficial interest to be transferred or
exchanged; and
(ii) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account
to be credited with such increase; or
(B) both:
(i) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued
a Definitive Note in an amount equal to the beneficial interest to
be transferred or exchanged; and
(ii) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such
Definitive Note shall be registered to effect the transfer or
exchange referred to in (1) above.
Upon consummation of an Exchange Offer by the Company in accordance with Section
2.06(f) hereof, the requirements of this Section 2.06(b)(2) shall be deemed to
have been satisfied upon receipt by the Registrar of the instructions contained
in the Letter of Transmittal delivered by the Holder of such beneficial
interests in the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global Notes
contained in this Indenture and the Notes or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount of the relevant
Global Note(s) pursuant to Section 2.06(h) hereof.
(3) Transfer of Beneficial Interests to Another Restricted Global
Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(2) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor
must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item
(3) thereof, if applicable.
(4) Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in an Unrestricted Global Note. A
beneficial interest in any Restricted
29
Global Note may be exchanged by any holder thereof for a beneficial
interest in an Unrestricted Global Note or transferred to a Person who
takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note if the exchange or transfer complies with the
requirements of Section 2.06(b)(2) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of the beneficial interest to be transferred, in the
case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (i)
a Broker-Dealer, (ii) a Person participating in the distribution of
the Exchange Notes or (iii) a Person who is an affiliate (as defined
in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a) thereof;
or
(ii) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note,
a certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D) above
at a time when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of an Authentication Order in accordance with
Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to subparagraph (B) or (D)
above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(1) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. If any holder of a beneficial interest in a Restricted
Global Note proposes to exchange such beneficial
30
interest for a Restricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, a certificate from such holder in the
form of Exhibit C hereto, including the certifications in item
(2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB
in accordance with Rule 144A, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant
to an exemption from the registration requirements of the Securities
Act in accordance with Rule 144, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item
(3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from
the registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable;
(F) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or
(G) if such beneficial interest is being transferred pursuant
to an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive Note issued
in exchange for a beneficial interest in a Restricted Global Note pursuant to
this Section 2.06(c)(1) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.
(2) Beneficial Interests in Restricted Global Notes to Unrestricted
Definitive Notes. A holder of a beneficial interest in a Restricted Global
Note may exchange such beneficial interest
31
for an Unrestricted Definitive Note or may transfer such beneficial
interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution of
the Exchange Notes or (iii) a Person who is an affiliate (as defined
in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for an Unrestricted Definitive Note, a certificate
from such holder in the form of Exhibit C hereto, including
the certifications in item (1)(b) thereof; or
(ii) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of an Unrestricted Definitive Note, a certificate from
such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.
(3) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest in
an Unrestricted Global Note proposes to exchange such beneficial interest
for a Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Definitive Note, then, upon
satisfaction of the conditions set forth in Section 2.06(b)(2) hereof, the
Trustee will cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the
Company will execute and the Trustee will authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(3) will be registered in such
name or names and in such authorized denomination or denominations as the
holder of such beneficial interest requests through instructions to the
Registrar from or through the Depositary and the Participant or Indirect
Participant. The Trustee will deliver such Definitive Notes to the Persons
in whose names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(3)
will not bear the Private Placement Legend.
32
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(1) Restricted Definitive Notes to Beneficial Interests in Restricted
Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange
such Note for a beneficial interest in a Restricted Global Note or to transfer
such Restricted Definitive Notes to a Person who takes delivery thereof in the
form of a beneficial interest in a Restricted Global Note, then, upon receipt by
the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Restricted Global Note,
a certificate from such Holder in the form of Exhibit C hereto, including
the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred to a QIB
in accordance with Rule 144A, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903 or
Rule 904, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred pursuant
to an exemption from the registration requirements of the Securities Act
in accordance with Rule 144, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if applicable;
(F) if such Restricted Definitive Note is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (3)(b) thereof;
or
(G) if such Restricted Definitive Note is being transferred pursuant
to an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee will cancel the Restricted Definitive Note, increase or cause
to be increased the aggregate principal amount of, in the case of clause
(A) above, the appropriate Restricted Global Note, in the case of clause
(B) above, the 144A Global Note, in the case of clause (C) above, the
Regulation S Global Note, and in all other cases, the IAI Global Note.
(2) Restricted Definitive Notes to Beneficial Interests in Unrestricted
Global Notes. A Holder of a Restricted Definitive Note may exchange such Note
for a beneficial interest in an Unrestricted Global Note or transfer such
Restricted Definitive Note to a Person who takes delivery thereof in the form of
a beneficial interest in an Unrestricted Global Note only if:
33
(A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and the Holder,
in the case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution of the
Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule
144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Definitive Notes proposes to
exchange such Notes for a beneficial interest in the Unrestricted
Global Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(c) thereof; or
(ii) if the Holder of such Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in
the form of a beneficial interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to the
effect that such exchange or transfer is in compliance with the Securities
Act and that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.06(d)(2), the Trustee will cancel the Definitive Notes and increase or
cause to be increased the aggregate principal amount of the Unrestricted Global
Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted
Global Notes. A Holder of an Unrestricted Definitive Note may exchange such Note
for a beneficial interest in an Unrestricted Global Note or transfer such
Definitive Notes to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note at any time. Upon receipt of
a request for such an exchange or transfer, the Trustee will cancel the
applicable Unrestricted Definitive Note and increase or cause to be increased
the aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial
interest is effected pursuant to subparagraphs (2)(B), (2)(D) or (3) above at a
time when an Unrestricted Global Note has not yet been issued, the Company will
issue and, upon receipt of an Authentication Order in accordance with Section
2.02 hereof, the Trustee will authenticate one or more Unrestricted Global Notes
in an aggregate principal amount equal to the principal amount of Definitive
Notes so transferred.
34
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon
request by a Holder of Definitive Notes and such Holder's compliance with the
provisions of this Section 2.06(e), the Registrar will register the transfer or
exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder must present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
must provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e).
(1) Restricted Definitive Notes to Restricted Definitive Notes. Any
Restricted Definitive Note may be transferred to and registered in the
name of Persons who take delivery thereof in the form of a Restricted
Definitive Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A, then
the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule
904, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof;
and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities Act,
then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if applicable.
(2) Restricted Definitive Notes to Unrestricted Definitive Notes.
Any Restricted Definitive Note may be exchanged by the Holder thereof for
an Unrestricted Definitive Note or transferred to a Person or Persons who
take delivery thereof in the form of an Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or (iii) a
Person who is an affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Broker-Dealer pursuant
to the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for an Unrestricted Definitive
Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(d) thereof;
or
35
(ii) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive
Note, a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(3) Unrestricted Definitive Notes to Unrestricted Definitive Notes.
A Holder of Unrestricted Definitive Notes may transfer such Notes to a
Person who takes delivery thereof in the form of an Unrestricted
Definitive Note. Upon receipt of a request to register such a transfer,
the Registrar shall register the Unrestricted Definitive Notes pursuant to
the instructions from the Holder thereof.
(c) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company will issue and,
upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee will authenticate:
(1) one or more Unrestricted Global Notes in an aggregate principal
amount equal to the principal amount of the beneficial interests in the
Restricted Global Notes accepted for exchange in the Exchange Offer by
Persons that certify in the applicable Letters of Transmittal that (A)
they are not Broker-Dealers, (B) they are not participating in a
distribution of the Exchange Notes and (C) they are not affiliates (as
defined in Rule 144) of the Company; and
(2) Unrestricted Definitive Notes in an aggregate principal amount
equal to the principal amount of the Restricted Definitive Notes accepted
for exchange in the Exchange Offer by Persons that certify in the
applicable Letters of Transmittal that (A) they are not Broker-Dealers,
(B) they are not participating in a distribution of the Exchange Notes and
(C) they are not affiliates (as defined in Rule 144) of the Company.
Concurrently with the issuance of such Notes, the Trustee will cause the
aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Company will execute and the Trustee will
authenticate and deliver to the Persons designated by the Holders of Definitive
Notes so accepted Unrestricted Definitive Notes in the appropriate principal
amount.
(g) Legends. The following legends will appear on the face of all Global
Notes and Definitive Notes issued under this Indenture unless specifically
stated otherwise in the applicable provisions of this Indenture.
(1) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global
Note and each Definitive Note (and all Notes issued in exchange
therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR
36
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS NOT A U.S.
PERSON, IS NOT ACQUIRING THIS NOTE FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON
AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT) (AN "IAI"), (2) AGREES THAT IT WILL NOT, WITHIN THE TIME
PERIOD REFERRED TO UNDER RULE 144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE
144(d) UNDER THE SECURITIES ACT, IF APPLICABLE) UNDER THE SECURITIES ACT AS IN
EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A PERSON
WHOM THE HOLDER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QIB IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE
904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) TO AN IAI
THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE REGISTRATION
OF TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE) AND AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER
IS IN COMPLIANCE WITH THE SECURITIES ACT OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS, AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THIS NOTE OR ANY INTEREST HEREIN WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE
HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING
TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES
ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(4), (c)(2),
(c)(3), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of this Section 2.06
(and all Notes issued in exchange therefor or substitution thereof)
will not bear the Private Placement Legend.
(2) Global Note Legend. Each Global Note will bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS
37
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION
2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT
OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
(h) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note will be returned to or
retained and canceled by the Trustee in accordance with Section 2.11 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note will be
reduced accordingly and an endorsement will be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note will be increased accordingly and
an endorsement will be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the Company
will execute and the Trustee will authenticate Global Notes and Definitive
Notes upon receipt of an Authentication Order in accordance with Section
2.02 hereof or at the Registrar's request.
(2) No service charge will be made to a Holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or transfer pursuant
to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05 hereof).
(3) The Registrar will not be required to register the transfer of
or exchange of any Note selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part.
38
(4) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes
will be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Global
Notes or Definitive Notes surrendered upon such registration of transfer
or exchange.
(5) Neither the Registrar nor the Company will be required:
(A) to issue, to register the transfer of or to exchange any
Notes during a period beginning at the opening of business 15 days
before the day of any selection of Notes for redemption under
Section 3.02 hereof and ending at the close of business on the day
of selection;
(B) to register the transfer of or to exchange any Note
selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part; or
(C) to register the transfer of or to exchange a Note between
a record date and the next succeeding interest payment date.
(6) Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on
such Notes and for all other purposes, and none of the Trustee, any Agent
or the Company shall be affected by notice to the contrary.
(7) The Trustee will authenticate Global Notes and Definitive Notes
in accordance with the provisions of Section 2.02 hereof.
(8) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted by
facsimile.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Company and the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Note, the Company will issue and the Trustee, upon receipt of an
Authentication Order, will authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or the Company, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced. The Company may charge for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and will
be entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those canceled by it, those delivered to it for cancellation,
those reductions in the interest in a Global Note effected by the Trustee in
accordance with the provisions hereof, and those described in this Section 2.08
as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not
cease to be outstanding because the Company or an Affiliate of the Company holds
the Note; however, Notes held by the
39
Company or a Subsidiary of the Company shall not be deemed to be outstanding for
purposes of Section 3.07(a) hereof.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under Section 4.01
hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate
of any thereof) holds, on a redemption date or maturity date, money sufficient
to pay Notes payable on that date, then on and after that date such Notes will
be deemed to be no longer outstanding and will cease to accrue interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or any Guarantor, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
Guarantor, will be considered as though not outstanding, except that for the
purposes of determining whether the Trustee will be protected in relying on any
such direction, waiver or consent, only Notes that the Trustee knows are so
owned will be so disregarded.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the Company
may prepare and the Trustee, upon receipt of an Authentication Order, will
authenticate temporary Notes. Temporary Notes will be substantially in the form
of certificated Notes but may have variations that the Company considers
appropriate for temporary Notes and as may be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company will prepare and the Trustee
will authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes will be entitled to all of the benefits of this
Indenture.
Section 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and Paying Agent will forward to the Trustee any Notes surrendered
to them for registration of transfer, exchange or payment. The Trustee and no
one else will cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and will destroy canceled Notes
(subject to the record retention requirement of the Exchange Act). Certification
of the destruction of all canceled Notes will be delivered to the Company. The
Company may not issue new Notes to replace Notes that it has paid or that have
been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it will pay
the defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof. The Company will notify the Trustee in writing of
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment. The Company will fix or cause to be fixed each such
special record date and payment date; provided that no such special record date
may
40
be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or, upon
the written request of the Company, the Trustee in the name and at the expense
of the Company) will mail or cause to be mailed to Holders a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it must furnish to the Trustee, at least 30
days but not more than 60 days before a redemption date, an Officers'
Certificate setting forth:
(1) the clause of this Indenture pursuant to which the redemption
shall occur;
(2) the redemption date;
(3) the principal amount of Notes to be redeemed; and
(4) the redemption price.
Section 3.02 Selection of Notes to Be Redeemed or Purchased.
If less than all of the Notes are to be redeemed or purchased in an offer
to purchase at any time, the Trustee will select Notes for redemption or
purchase on a pro rata basis except:
(1) if the Notes are listed on any national securities exchange, in
compliance with the requirements of the principal national securities
exchange on which the Notes are listed; or
(2) if otherwise required by law.
In the event of partial redemption or purchase by lot, the particular
Notes to be redeemed or purchased will be selected, unless otherwise provided
herein, not less than 30 nor more than 60 days prior to the redemption or
purchase date by the Trustee from the outstanding Notes not previously called
for redemption or purchase.
The Trustee will promptly notify the Company in writing of the Notes
selected for redemption or purchase and, in the case of any Note selected for
partial redemption or purchase, the principal amount thereof to be redeemed or
purchased. Notes and portions of Notes selected will be in amounts of $1,000 or
whole multiples of $1,000; except that if all of the Notes of a Holder are to be
redeemed or purchased, the entire outstanding amount of Notes held by such
Holder, even if not a multiple of $1,000, shall be redeemed or purchased. Except
as provided in the preceding sentence, provisions of this Indenture that apply
to Notes called for redemption or purchase also apply to portions of Notes
called for redemption or purchase.
Section 3.03 Notice of Redemption.
Subject to the provisions of Section 3.09 hereof, at least 30 days but not
more than 60 days before a redemption date, the Company will mail or cause to be
mailed, by first class mail, a notice of redemption to each Holder whose Notes
are to be redeemed at its registered address, except that
41
redemption notices may be mailed more than 60 days prior to a redemption date if
the notice is issued in connection with a defeasance of the Notes or a
satisfaction and discharge of this Indenture pursuant to Articles 8 or 10
hereof.
The notice will identify the Notes to be redeemed and will state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion will be issued upon
cancellation of the original Note;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the redemption date;
(7) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(8) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the
Notes.
At the Company's request, the Trustee will give the notice of redemption
in the Company's name and at its expense; provided, however, that the Company
has delivered to the Trustee, at least 45 days prior to the redemption date
unless the Trustee consents to a shorter period, an Officers' Certificate
requesting that the Trustee give such notice and setting forth the information
to be stated in such notice as provided in the preceding paragraph.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 3.05 Deposit of Redemption or Purchase Price.
One Business Day prior to the redemption or purchase date, the Company
will deposit with the Trustee or with the Paying Agent money sufficient to pay
the redemption or purchase price of and accrued interest and Liquidated Damages,
if any, on all Notes to be redeemed or purchased on that date. The Trustee or
the Paying Agent will promptly return to the Company any money deposited with
the Trustee or the Paying Agent by the Company in excess of the amounts
necessary to pay the redemption or purchase price of, and accrued interest and
Liquidated Damages, if any, on, all Notes to be redeemed or purchased.
42
If the Company complies with the provisions of the preceding paragraph, on
and after the redemption or purchase date, interest will cease to accrue on the
Notes or the portions of Notes called for redemption or purchase. If a Note is
redeemed or purchased on or after an interest record date but on or prior to the
related interest payment date, then any accrued and unpaid interest shall be
paid to the Person in whose name such Note was registered at the close of
business on such record date. If any Note called for redemption or purchase is
not so paid upon surrender for redemption or purchase because of the failure of
the Company to comply with the preceding paragraph, interest shall be paid on
the unpaid principal, from the redemption or purchase date until such principal
is paid, and to the extent lawful on any interest not paid on such unpaid
principal, in each case at the rate provided in the Notes and in Section 4.01
hereof.
Section 3.06 Notes Redeemed or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in part, the
Company will issue and, upon receipt of an Authentication Order, the Trustee
will authenticate for the Holder at the expense of the Company a new Note equal
in principal amount to the unredeemed or unpurchased portion of the Note
surrendered.
Section 3.07 Optional Redemption.
(a) At any time prior to November 15, 2007, the Company may, on any one or
more occasions, redeem up to 35% of the aggregate principal amount of Notes
issued under this Indenture (including the issuance of any Additional Notes
hereunder) at a redemption price of 106.750% of the principal amount thereof,
plus accrued and unpaid interest and Liquidated Damages, if any, to the
redemption date, with the net cash proceeds of one or more sales of common
Equity Interests (other than Disqualified Stock) of the Company; provided that:
(1) at least 65% of the aggregate principal amount of Notes
originally issued under this Indenture (excluding Notes held by the
Company and its Subsidiaries) remains outstanding immediately after the
occurrence of such redemption; and
(2) the redemption occurs within 90 days of the date of the closing
of such sale of Equity Interests.
(b) Except pursuant to the preceding paragraph, the Notes will not be
redeemable at the Company's option prior to November 15, 2008.
(c) On or after November 15, 2008, the Company may redeem all or a part of
the Notes upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest and Liquidated Damages, if any, on the Notes
redeemed, to the applicable redemption date, if redeemed during the twelve-month
period beginning on November 15 of the years indicated below, subject to the
rights of Holders on the relevant record date to receive interest on the
relevant interest payment date:
Year Percentage
---- ----------
2008............................................................................. 103.375%
2009............................................................................. 101.688%
2010 and thereafter.............................................................. 100.000%
Unless the Company defaults in the payment of the redemption price,
interest will cease to accrue on the Notes or portions thereof called for
redemption on the applicable redemption date.
43
(d) At any time prior to November 15, 2008, the Company may also redeem
all or a part of the Notes, upon not less than 30 nor more than 60 days' prior
notice mailed by first-class mail to each Holder's registered address, at a
redemption price equal to 100% of the principal amount of Notes redeemed plus
the Applicable Premium as of, and accrued and unpaid interest and Liquidated
Damages, if any, to the applicable date of redemption, subject to the rights of
Holders on the relevant record date to receive interest due on the relevant
interest payment date.
(e) If, as a result of:
(1) any amendment after the date of this Indenture to, or change
after the date of this Indenture in, the laws or regulations of any
Relevant Jurisdiction, or
(2) any change after the date of this Indenture in the general
application or general or official interpretation of the laws or
regulations of any Relevant Jurisdiction applicable to the Company,
the Company would be obligated to pay, on the next date for any payment and as a
result of that change, Additional Amounts as described in Section 4.19 hereof
with respect to the Relevant Jurisdiction, which the Company cannot avoid by the
use of reasonable measures available to it, then the Company may redeem all, but
not less than all, of the Notes, at any time thereafter, upon not less than 30
nor more than 60 days' notice, at a redemption price equal to 100% of the
principal amount of Notes redeemed, plus accrued interest and Liquidated
Damages, if any, to the redemption date. Prior to the giving of any notice of
redemption described in this paragraph, the Company will deliver to the Trustee
an Officers' Certificate stating that:
(A) the obligation to pay such Additional Amounts cannot be
avoided by the Company taking reasonable measures available to it;
and
(B) the Company has or will become obligated to pay such
Additional Amounts as a result of an amendment, change, or official
application or interpretation described above.
(f) Any redemption pursuant to this Section 3.07 shall be made pursuant to
the provisions of Sections 3.01 through 3.06 hereof.
Section 3.08 Mandatory Redemption.
The Company is not required to make mandatory redemption or sinking fund
payments with respect to the Notes.
Section 3.09 Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 hereof, the Company is
required to commence an offer to all Holders to purchase Notes (an "Asset Sale
Offer"), it will follow the procedures specified below.
The Asset Sale Offer shall be made to all Holders and all holders of other
Indebtedness that is pari passu with the Notes containing provisions similar to
those set forth in this Indenture with respect to offers to purchase or redeem
with the proceeds of sales of assets. The Asset Sale Offer will remain open for
a period of at least 20 Business Days following its commencement and not more
than 30 Business Days, except to the extent that a longer period is required by
applicable law (the "Offer Period"). No later than three Business Days after the
termination of the Offer Period (the "Purchase Date"), the
44
Company will apply all Excess Proceeds (the "Offer Amount") to the purchase of
Notes and such other pari passu Indebtedness (on a pro rata basis, if
applicable) or, if less than the Offer Amount has been tendered, all Notes and
other Indebtedness tendered in response to the Asset Sale Offer. Payment for any
Notes so purchased will be made in the same manner as interest payments are
made.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest and
Liquidated Damages, if any, will be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no additional
interest will be payable to Holders who tender Notes pursuant to the Asset Sale
Offer.
Upon the commencement of an Asset Sale Offer, the Company will send, by
first class mail, a notice to the Trustee and each of the Holders, with a copy
to the Trustee. The notice will contain all instructions and materials necessary
to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The
notice, which will govern the terms of the Asset Sale Offer, will state:
(1) that the Asset Sale Offer is being made pursuant to this Section
3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer
will remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Note not tendered or accepted for payment will continue
to accrue interest;
(4) that, unless the Company defaults in making such payment, any
Note accepted for payment pursuant to the Asset Sale Offer will cease to
accrue interest after the Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to an
Asset Sale Offer may elect to have Notes purchased in integral multiples
of $1,000 only;
(6) that Holders electing to have Notes purchased pursuant to any
Asset Sale Offer will be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" attached to the Notes
completed, or transfer by book-entry transfer, to the Company, a
Depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice at least three days before the Purchase Date;
(7) that Holders will be entitled to withdraw their election if the
Company, the Depositary or the Paying Agent, as the case may be, receives,
not later than the expiration of the Offer Period, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such Note
purchased;
(8) that, if the aggregate principal amount of Notes and other pari
passu Indebtedness surrendered by holders thereof exceeds the Offer
Amount, the Trustee will select the Notes and other pari passu
Indebtedness to be purchased on a pro rata basis based on the principal
amount of Notes and such other pari passu Indebtedness surrendered (with
such adjustments as may be deemed appropriate by the Trustee so that only
Notes in denominations of $1,000, or integral multiples thereof, will be
purchased); and
(9) that Holders whose Notes were purchased only in part will be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered (or transferred by book-entry transfer), which
unpurchased portion must be equal to $1,000 in principal amount or an
integral multiple thereof.
45
On or before the Purchase Date, the Company will, to the extent lawful,
accept for payment, on a pro rata basis to the extent necessary, the Offer
Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer,
or if less than the Offer Amount has been tendered, all Notes tendered, and will
deliver or cause to be delivered to the Trustee the Notes properly accepted
together with an Officers' Certificate stating that such Notes or portions
thereof were accepted for payment by the Company in accordance with the terms of
this Section 3.09. The Company, the Depositary or the Paying Agent, as the case
may be, will promptly (but in any case not later than five days after the
Purchase Date) mail or deliver to each tendering Holder an amount equal to the
purchase price of the Notes tendered by such Holder and accepted by the Company
for purchase, and the Company will promptly issue a new Note, and the Trustee,
upon written request from the Company, will authenticate and mail or deliver (or
cause to be transferred by book entry) such new Note to such Holder, in a
principal amount equal to any unpurchased portion of the Note surrendered. Any
Note not so accepted shall be promptly mailed or delivered by the Company to the
Holder thereof. The Company will publicly announce the results of the Asset Sale
Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes.
The Company will pay or cause to be paid the principal of, premium, if
any, and interest and Liquidated Damages, if any, on, the Notes on the dates and
in the manner provided in the Notes. Principal, premium, if any, and interest
and Liquidated Damages, if any, will be considered paid on the date due if the
Paying Agent, if other than the Company or a Subsidiary thereof, holds as of
10:00 a.m. Eastern Time on the due date money deposited by the Company in
immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due. The Company will pay all
Liquidated Damages, if any, in the same manner on the dates and in the amounts
set forth in the Registration Rights Agreement.
The Company will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the then applicable interest rate on the Notes to the
extent lawful; it will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages (without regard to any applicable grace period) at the same
rate to the extent lawful.
Section 4.02 Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
fails to maintain any such required office or agency or fails to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind
46
such designations; provided, however, that no such designation or rescission
will in any manner relieve the Company of its obligation to maintain an office
or agency in the Borough of Manhattan, the City of New York for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee as
one such office or agency of the Company in accordance with Section 2.03 hereof.
Section 4.03 Reports.
(a) So long as any Notes are outstanding, the Company will furnish to the
Holders of Notes or cause the Trustee to furnish to the Holders of Notes at the
expense of the Company, within the time periods specified in the SEC's rules and
regulations:
(1) all annual reports that would be required to be filed with or
furnished to the SEC on Form 20-F if the Company were required to file or
furnish such reports;
(2) all quarterly reports on Form 6-K whether or not the Company is
required to file or furnish such reports to the SEC; and
(3) all current reports that would be required to be filed with or
furnished to the SEC on Form 6-K if the Company were required to file or
furnish such reports.
All such reports will be prepared in all material respects in
accordance with all of the rules and regulations applicable to such reports.
Each annual report on Form 20-F referred to in clause (1) above will include a
report on the Company's consolidated financial statements by the Company's
certified independent accountants. Each quarterly report on Form 6-K referred to
in clause (2) above will include the Company's consolidated balance sheet and
consolidated income statement and will be furnished by the Company to the
Holders of Notes (or the Company will cause the Trustee to furnish to the
Holders of Notes) and will be furnished to the SEC within 45 days following the
end of the first, second and third fiscal quarter of each fiscal year. In
addition, the Company will file a copy of each of the reports referred to in
clauses (1) and (3) above with the SEC for public availability within the time
periods specified in the rules and regulations applicable to such reports
(unless the SEC will not accept such a filing) and will post the reports on its
website within those time periods.
If, at any time, the Company is no longer subject to the periodic
reporting requirements of the Exchange Act for any reason, the Company will
nevertheless continue filing the reports specified in this Section 4.03 with the
SEC within the time periods specified above unless the SEC will not accept such
a filing. The Company will not take any action for the purpose of causing the
SEC not to accept any such filings. If, notwithstanding the foregoing, the SEC
will not accept the Company's filings for any reason, the Company will post the
reports referred to in the preceding paragraphs on its website within the time
periods that would apply if the Company were required to file those reports with
the SEC.
(b) In addition, the Company agrees that, for so long as any Notes remain
outstanding, if at any time the Company is not required to file with the SEC the
reports required by this Section 4.03, it will furnish to the Holders of Notes
and to securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
Delivery of reports and information under this Section 4.03 to the
Trustee is for informational purposes only and the Trustee's receipt of such
reports and information shall not constitute constructive notice of any such
information.
47
Section 4.04 Compliance Certificate.
(a) The Company shall, and shall cause each Guarantor (to the extent that
such Guarantor is so required under the TIA) to, deliver to the Trustee, within
120 days after the end of each fiscal year, an Officers' Certificate stating
that a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture and the Subsidiary
Guarantee Agreement, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions and conditions of this Indenture (or, if a Default or Event of
Default has occurred, describing all such Defaults or Events of Default of which
he or she may have knowledge and what action the Company is taking or proposes
to take with respect thereto) and that to the best of his or her knowledge no
event has occurred and remains in existence by reason of which payments on
account of the principal of or interest, if any, on the Notes is prohibited or
if such event has occurred, a description of the event and what action the
Company is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03 above shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article 4 or Article 5 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) So long as any of the Notes are outstanding, the Company will deliver
to the Trustee, forthwith upon any Officer becoming aware of any Default or
Event of Default, an Officers' Certificate specifying such Default or Event of
Default and what action the Company is taking or proposes to take with respect
thereto.
Section 4.05 Taxes.
The Company will pay, and will cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate proceedings or
where the failure to effect such payment is not adverse in any material respect
to the Holders of the Notes.
Section 4.06 Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not, and will cause each of the Guarantors not to, at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay, extension or usury law wherever enacted, now or at any time hereafter
in force, that may affect the covenants or the performance of this Indenture or
the Subsidiary Guarantee Agreement; and the Company, on behalf of itself and
each of the Guarantors (to the extent that it may lawfully do so), hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law has been enacted.
48
Section 4.07 Restricted Payments.
(a) The Company shall not, and shall not permit any Restricted Subsidiary,
directly or indirectly, to make a Restricted Payment if at the time that the
Company or the Restricted Subsidiary makes the Restricted Payment:
(1) a Default shall have occurred and be continuing (or would result
as a result of making the Restricted Payment);
(2) the Company is not able to Incur an additional $1.00 of
Indebtedness under clause (a) of Section 4.09 hereof; or
(3) the aggregate amount of the Restricted Payment and all other
Restricted Payments since the Issue Date would exceed the sum, without
duplication, of:
(A) 50% of the Consolidated Net Income accrued during the
period, treated as one accounting period, from the beginning of the
fiscal quarter immediately following the fiscal quarter during which
the Notes are originally issued to the end of the most recent fiscal
quarter for which internal financial statements are available on or
prior to the date of the Restricted Payment, or, in case
Consolidated Net Income shall be a deficit, minus 100% of the
deficit;
(B) the aggregate Net Cash Proceeds received by the Company
from the issuance or sale of, or capital contribution relating to,
its Capital Stock, other than Disqualified Stock, subsequent to the
Issue Date, other than an issuance or sale to a Subsidiary of the
Company and other than an issuance or sale to an employee stock
ownership plan or to a trust established by the Company or any of
its Subsidiaries for the benefit of employees to the extent that the
purchase by the plan or trust is financed by Indebtedness of the
plan or trust to the Company or any of its Subsidiaries or
Indebtedness guaranteed by the Company or any of its Subsidiaries,
and the Fair Market Value of property, other than cash that would
constitute Temporary Cash Investments or a Related Business,
received by the Company or a Restricted Subsidiary subsequent to the
Issue Date as a contribution to its common equity capital, other
than from a Subsidiary of the Company or that was financed with
loans from the Company or any Restricted Subsidiary;
(C) the amount by which Indebtedness of the Company or any
Restricted Subsidiary is reduced on the Company's consolidated
balance sheet upon the conversion or exchange, other than by a
Subsidiary of the Company subsequent to the Issue Date, of any
Indebtedness of the Company or any Restricted Subsidiary convertible
or exchangeable for the Company's Capital Stock, other than
Disqualified Stock, less the amount of any cash, or the Fair Market
Value of any other property, distributed by the Company or any
Restricted Subsidiary upon the conversion or exchange; and
(D) an amount equal to the sum of (i) the net reduction in
Investments in any Person resulting from dividends, repayments of
loans or advances or other transfers of assets subsequent to the
Issue Date, in each case, to the Company or any Restricted
Subsidiary from the Person, and (ii) the portion, proportionate to
the Company's equity interest in the Subsidiary, of the Fair Market
Value of the net assets of an Unrestricted Subsidiary at the time
the Unrestricted Subsidiary is designated a Restricted Subsidiary;
provided, however, that this sum shall not exceed, in the case of
any Person, the amount
49
of Investments previously made, and treated as a Restricted Payment,
by the Company or any Restricted Subsidiary in the Person.
(b) The provisions of clause (a) of this Section 4.07 shall not prohibit:
(1) any Restricted Payment made by exchange for, or out of the
proceeds of the substantially concurrent sale of, or capital contribution
relating to, Capital Stock of the Company, other than Disqualified Stock
and other than Capital Stock issued or sold to a Subsidiary of the Company
or an employee stock ownership plan or to a trust established by the
Company or any of its Subsidiaries for the benefit of employees to the
extent that the purchase by the plan or trust is financed by Indebtedness
of the plan or trust to the Company or any of its Subsidiaries or
Indebtedness Guaranteed by the Company or any of its Subsidiaries;
provided, however, that (A) the Restricted Payment shall be excluded in
the calculation of the amount of Restricted Payments and (B) the Net Cash
Proceeds from the sale shall be excluded from the calculation of amounts
under clause (a)(3)(B) of this Section 4.07;
(2) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations made by
exchange for, or out of the proceeds of the substantially concurrent sale
of, Indebtedness which is permitted to be Incurred under Section 4.09
hereof; provided, however, that the purchase, repurchase, redemption,
defeasance or other acquisition or retirement for value shall be excluded
in the calculation of the amount of Restricted Payments;
(3) any purchase or redemption of Disqualified Stock of the
Company or a Restricted Subsidiary made by exchange for, or out of the
proceeds of the substantially concurrent sale of, Disqualified Stock of
the Company or a Restricted Subsidiary which is permitted to be Incurred
under Section 4.09 hereof; provided, however, that the purchase or
redemption shall be excluded in the calculation of the amount of
Restricted Payments;
(4) any purchase or redemption of Subordinated Obligations
from Net Proceeds upon completion of an Asset Sale Offer to the extent
permitted by Section 4.10 hereof; provided, however, that the purchase or
redemption shall be excluded in the calculation of the amount of
Restricted Payments;
(5) upon the occurrence of a Change of Control and within 60
days after the completion of the offer to repurchase the Notes under
Section 4.15 hereof, including the purchase of the Notes tendered, any
purchase or redemption of Subordinated Obligations required under the
terms of the Subordinated Obligations as a result of the Change of Control
at a purchase or redemption price not to exceed the outstanding principal
amount of the Subordinated Obligations, plus any accrued and unpaid
interest; provided, however, that
(A) at the time of the purchase or redemption no Default
shall have occurred and be continuing or would result from the
purchase or redemption;
(B) the Company would be able to Incur an additional
$1.00 of Indebtedness under clause (a) of Section 4.09 hereof after
giving pro forma effect to the Restricted Payment; and
(C) the purchase or redemption shall be included in the
calculation of the amount of Restricted Payments.
50
(6) dividends paid within 60 days after the date of
declaration of the dividends if, at the date of declaration, the
dividends would have complied with this Section 4.07; provided,
however, that the dividends shall be included in the calculation of
the amount of Restricted Payments;
(7) the repurchase or other acquisition of shares of, or
options to purchase shares of, common stock of the Company or any of
its Subsidiaries from employees, former employees, consultants,
former consultants, directors or former directors of the Company or
any of its Subsidiaries, or permitted transferees of these
employees, former employees, consultants, former consultants,
directors or former directors), under the terms of the agreements,
including employment and consulting agreements, or plans, or
amendments approved by the Board of Directors of the Company under
which these individuals purchase or sell or are granted the option
to purchase or sell, shares of the common stock; provided, however,
that the aggregate amount of the repurchases shall not exceed the
sum of:
(A) $5.0 million;
(B) the Net Cash Proceeds from the sale of Capital Stock
to members of management or directors of the Company and its
Subsidiaries that occurs after the Issue Date, to the extent
the Net Cash Proceeds from the sale have not otherwise been
applied to the payment of Restricted Payments by virtue of
clause (a)(3)(B) of this Section 4.07; and
(C) the cash proceeds of any "key man" life insurance
policies that are used to make the repurchases;
provided, further, that (i) the repurchases shall be excluded in the calculation
of the amount of Restricted Payments and (ii) the Net Cash Proceeds from the
sale shall be excluded from the calculation of amounts under clause (a)(3)(B) of
this Section 4.07.
(8) repurchases of Capital Stock deemed to occur upon the exercise
of stock options if the Capital Stock represents a portion of the exercise
price of the stock options; provided, however, that the payments shall be
excluded in the calculation of the amount of Restricted Payments;
(9) payments not to exceed $200,000 in the aggregate solely to
enable the Company to make payments to holders of its Capital Stock in
lieu of the issuance of fractional shares of its Capital Stock; provided,
however, that the payments shall be excluded in the calculation of the
amount of Restricted Payments;
(10) Restricted Payments not to exceed $30.0 million payable on
Capital Stock, including Disqualified Stock, issued to customers, clients,
suppliers or purchasers or sellers of goods or services of the Company or
a Restricted Subsidiary in connection with a strategic investment in the
Company or a Restricted Subsidiary by the customers, clients, suppliers or
purchasers or sellers of goods or services; provided, however, that the
payments shall be included in the calculation of the amount of Restricted
Payments;
(11) Restricted Payments not exceeding $30.0 million in the
aggregate for any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations; provided,
however, that (A) at the time of the Restricted Payments, no Default shall
have occurred and be continuing or result from the Restricted Payments,
and (B) the Restricted Payments shall be included in the calculation of
the amount of Restricted Payments;
51
(12) the repurchase or other acquisition or retirement for value of
up to all of ChipPAC International Company Limited's 12.75% Senior
Subordinated Notes due 2009 outstanding as of the Issue Date; provided,
however, that the Restricted Payments shall be excluded in the calculation
of the amount of Restricted Payments;
(13) the distribution, as a dividend or otherwise, of shares of
Capital Stock or assets of an Unrestricted Subsidiary, provided that the
Fair Market Value of the shares of Capital Stock or assets shall not
exceed the amount of the Investments that were made, and not subsequently
reduced under clause (a)(3)(D) of this section 4.07, by the Company in the
Unrestricted Subsidiary and were treated as Restricted Payments or were
included in the calculation of the amount of Restricted Payments
previously made; provided, however, that (A) the distributions shall be
excluded in the calculation of the amount of Restricted Payments and (B)
any net reduction in Investments in the Unrestricted Subsidiary resulting
from the distribution shall be excluded from the calculation of amounts
under clause (a)(3)(D) of this Section 4.07; or
(14) Restricted Payments not exceeding $15.0 million in the
aggregate; provided, however, that (A) at the time of the Restricted
Payments, no Default shall have occurred and be continuing or result from
the Restricted Payments and (B) the Restricted Payments shall be included
in the calculation of the amount of Restricted Payments.
Section 4.08 Limitations on Restrictions on Distributions from Restricted
Subsidiaries.
The Company shall not, and shall not permit any Restricted Subsidiary to,
create or otherwise cause or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any Restricted Subsidiary to (a)
pay dividends or make any other distributions on its Capital Stock to the
Company or any Restricted Subsidiary or pay any Indebtedness owed to the Company
or any Restricted Subsidiary, (b) make any loans or advances to the Company or
any Restricted Subsidiary or (c) transfer any of its property or assets to the
Company or any Restricted Subsidiary, except:
(1) any encumbrance or restriction under an agreement in effect at
or entered into on the Issue Date, including this Indenture, the Notes and
the Note Guarantees;
(2) any encumbrance or restriction relating to a Restricted
Subsidiary under an agreement relating to any Indebtedness Incurred by the
Restricted Subsidiary on or prior to the date on which the Restricted
Subsidiary was acquired by the Company, other than Indebtedness Incurred
as consideration in, or to provide all or any portion of the funds or
credit support utilized to consummate, the transaction or series of
related transactions where the Restricted Subsidiary became a Restricted
Subsidiary or was acquired by the Company, and outstanding on that date;
(3) any encumbrance or restriction under an agreement (A) evidencing
Indebtedness Incurred without violation of this Indenture or (B) effecting
a Refinancing of Indebtedness Incurred under an agreement referred to in
clause (1) or (2) of this Section 4.08 or this clause (3) or contained in
any amendment to an agreement referred to in clause (1) or (2) of this
Section 4.08 or this clause (3); provided, however, that in the case of
clauses (A) and (B), the encumbrances and restrictions relating the
Restricted Subsidiary contained in the refinancing agreement or amendment
are, in the good faith judgment of the Board of Directors of the Company,
no more restrictive in any material respect than the encumbrances and
restrictions relating to the Restricted Subsidiary contained in agreements
of the Restricted Subsidiary in effect at, or entered into on, the Issue
Date;
52
(4) any encumbrance or restriction consisting of customary
non-assignment provisions in leases governing leasehold interests to the
extent the provisions restrict the transfer of the lease or the property
leased thereunder or in licenses entered into in the ordinary course of
business to the extent the licenses restrict the transfer of the license
or the property licensed under the license;
(5) in the case of clause (c) of the first paragraph of this Section
4.08, restrictions contained in security agreements (including Capital
Lease Obligations) or mortgages securing Indebtedness of a Restricted
Subsidiary so long as the restrictions solely restrict the transfer of the
property governed by the security agreements or mortgages;
(6) restrictions on the transfer of assets under any Lien permitted
under this Indenture imposed by the holder of the Lien;
(7) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions on the property so acquired of
the nature described in clause (c) of the first paragraph of this Section
4.08;
(8) provisions relating to the disposition or distribution of assets
or property in joint venture agreements and other similar agreements
entered into in the ordinary course of business;
(9) any restriction relating to a Restricted Subsidiary imposed
under an agreement entered into for the sale or disposition of all or
substantially all the Capital Stock or assets of the Restricted Subsidiary
pending the closing of the sale or disposition;
(10) any restriction arising under applicable law, regulation or
order;
(11) any agreement or instrument governing Capital Stock, other than
Disqualified Stock, of any Person that is in effect on the date the Person
is acquired by the Company or a Restricted Subsidiary;
(12) any restriction on cash or other deposits or net worth imposed
by customers under contracts entered into in the ordinary course of
business;
(13) any encumbrance or restriction under an agreement evidencing
Indebtedness incurred pursuant to clause (b)(9) of Section 4.09 hereof
that is reasonable and customary for the type of Indebtedness incurred
pursuant to clause (b)(9) of Section 4.09; and
(14) customary provisions in joint venture agreements entered into
with the approval of the Company's Board of Directors; provided, however,
that (i) such encumbrance or restriction is applicable only to the assets
of such Restricted Subsidiary that are the subject of such agreement, (ii)
the encumbrance or restriction is not materially more disadvantageous to
the Holders of the Notes than is customary in comparable agreements and
(iii) the Company reasonably determines that any such encumbrance or
restriction will not materially affect its ability to make any anticipated
principal or interest payments on the Notes.
Section 4.09 Limitation on Indebtedness.
(a) The Company shall not, and shall not permit any Restricted Subsidiary
to, Incur, directly or indirectly, any Indebtedness, except that the Company may
Incur Indebtedness if, after giving pro forma effect to the Incurrence, the
Consolidated Coverage Ratio exceeds 2.0 to 1.0.
53
(b) Notwithstanding the provisions of clause (a) of this Section 4.09, the
Company and its Restricted Subsidiaries may Incur the following Indebtedness:
(1) Indebtedness of the Company or any Guarantor Incurred under any
Credit Facilities; provided, however, that, immediately after giving
effect to the Incurrence, the aggregate principal amount of all
Indebtedness incurred under this clause (1) and then outstanding does not
exceed the greater of (A) $100.0 million and (B) the sum of (x) $20.0
million, (y) 50% of the book value of the inventory of the Company and
that of the Restricted Subsidiaries and (z) 80% of the book value of the
accounts receivables of the Company and that of the Restricted
Subsidiaries; provided, further, that the Indebtedness may only be
Incurred by a Restricted Subsidiary that is a Guarantor if the
Indebtedness, when added together with the amount of all other
Indebtedness Incurred by Restricted Subsidiaries that are Guarantors under
this clause (1) and then outstanding, does not exceed an amount equal to
50% of the greater of (x) the amount in clause (A) above and (y) the
amount determined in clause (B) above;
(2) Indebtedness of the Company or any Restricted Subsidiary owed to
and held by the Company or a Guarantor; provided, however, that any
subsequent issuance or transfer of any Capital Stock which results in a
Restricted Subsidiary ceasing to be a Restricted Subsidiary or any
subsequent transfer of the Indebtedness (other than to the Company or
another Restricted Subsidiary) will be considered, in each case, to
constitute the Incurrence of the Indebtedness by the issuer of that
Indebtedness;
(3) Indebtedness consisting of the Notes and the Exchange Notes,
other than Additional Notes;
(4) Indebtedness outstanding on the Issue Date, other than
Indebtedness described in clause (1), (2), (3), (7), (8), (9) or (14) of
this paragraph (b);
(5) Refinancing Indebtedness relating to Indebtedness Incurred under
paragraph (a) or under clause (2), (3), (4), (6) or this clause (5) of
this paragraph (b); provided, however, that to the extent the Refinancing
Indebtedness directly or indirectly Refinances Indebtedness of a
Subsidiary Incurred under clause (6) of this paragraph (b), the
Refinancing Indebtedness shall be Incurred only by that Subsidiary;
(6) Indebtedness of a Person Incurred and outstanding on or prior to
the date on which the Person was acquired by the Company or a Restricted
Subsidiary, other than Indebtedness Incurred in anticipation of, in
connection with, or to provide all or any portion of the funds or credit
support utilized to consummate, the transaction or series of related
transactions where the Person was acquired by the Company or a Restricted
Subsidiary; provided, however, that after giving pro forma effect to the
transaction or series of related transactions, (a) the Consolidated
Coverage Ratio increases as a consequence of the incurrence and related
acquisition and (b) the Consolidated Coverage Ratio is at least 1.5 to
1.0;
(7) Indebtedness of STATS ChipPAC Korea in an amount not to exceed
$20.0 million in the aggregate;
(8) Indebtedness of STATS ChipPAC Malaysia in an amount not to
exceed $1.0 million in the aggregate;
(9) Indebtedness of STATS ChipPAC China in an amount not to exceed
$30.0 million aggregate principal amount;
54
(10) Hedging Obligations of the Company or any Restricted Subsidiary
under Interest Rate Agreements and Currency Agreements entered into in the
ordinary course of business and not for the purpose of speculation;
(11) Indebtedness of the Company or any Restricted Subsidiary in the
form of performance bonds, completion guarantees and surety or appeal
bonds entered into by the Company and the Restricted Subsidiaries in the
ordinary course of their business;
(12) Indebtedness consisting of the Note Guarantees and Guarantees
of other Indebtedness otherwise permitted under this Indenture;
(13) Indebtedness of the Company or any Restricted Subsidiary
arising from the honoring by a bank or other financial institution of a
check, draft or similar instrument inadvertently (except in the case of
daylight overdrafts) drawn against insufficient funds in the ordinary
course of business, provided that the Indebtedness is satisfied within
five business days of Incurrence;
(14) Indebtedness, including Capital Lease Obligations, Incurred by
the Company or any of the Guarantors to finance the purchase, lease or
improvement of real or personal property or equipment, whether through the
direct purchase of assets or the Capital Stock of any Person owning the
assets, in an aggregate principal amount which, when added together with
the amount of Indebtedness Incurred under this clause (14) and then
outstanding, does not exceed the greater of (A) $50.0 million and (B) 5%
of Total Assets (in each case including any Refinancing Indebtedness of
that Indebtedness);
(15) Indebtedness Incurred by the Company or any of the Restricted
Subsidiaries constituting reimbursement obligations under letters of
credit issued in the ordinary course of business including, without
limitation, letters of credit to procure raw materials, or relating to
workers' compensation claims or self-insurance, or other Indebtedness
relating to reimbursement-type obligations regarding workers' compensation
claims;
(16) Indebtedness of the Company issued to any of its directors,
employees, officers or consultants or a Restricted Subsidiary in
connection with the redemption or purchase of Capital Stock that, by its
terms, is subordinated to the Notes, is not secured by any of the assets
of the Company or the Restricted Subsidiaries and does not require cash
payments prior to the Stated Maturity of the Notes and Refinancing
Indebtedness of that Indebtedness, in an aggregate principal amount which,
when added together with the amount of Indebtedness Incurred under this
clause (16) and then outstanding, does not exceed $5.0 million;
(17) Indebtedness arising from agreements of the Company or a
Restricted Subsidiary providing for indemnification, adjustment of
purchase price, earn-out or other similar obligations, in each case,
incurred or assumed in connection with the disposition of any business,
assets or a Restricted Subsidiary of the Company, other than guarantees of
Indebtedness incurred by any Person acquiring all or any portion of the
business, assets or Restricted Subsidiary for the purpose of financing the
acquisition; provided that the maximum assumable liability of all the
Indebtedness shall at no time exceed the gross proceeds actually received
by the Company and the Restricted Subsidiaries in connection with the
disposition; and
(18) Indebtedness of the Company or a Guarantor in an aggregate
principal amount which, together with all other Indebtedness of the
Company and the Guarantors outstanding on the date of Incurrence (other
than Indebtedness permitted by clauses (1) through (17) above or paragraph
(a) above) does not exceed $40.0 million.
55
(c) Notwithstanding this provision, the Company shall not, and shall not
permit any Restricted Subsidiary to, Incur any Refinancing Indebtedness under
the prior paragraph (b) if the proceeds from the Refinancing Indebtedness are
used, directly or indirectly, to Refinance any Subordinated Obligations unless
the Indebtedness shall be subordinated to the Notes or the relevant Note
Guarantee, as applicable, to at least the same extent as the Subordinated
Obligations.
(d) For purposes of determining compliance with this Section 4.09,
(1) if an item of Indebtedness meets the criteria of more than one
of the types of Indebtedness described above, the Company, in its sole
discretion, will classify the item of Indebtedness at the time of its
Incurrence, or later reclassify all or a portion of such Indebtedness in
any manner that complies with this Indenture, and only be required to
include the amount and type of the Indebtedness in one of the above
clauses; and
(2) an item of Indebtedness may be divided and classified in more
than one of the types of Indebtedness described above.
(e) Notwithstanding paragraphs (a) and (b) above, the Company shall not,
and shall not permit any Guarantor to, Incur any Indebtedness that is
contractually subordinated in right of payment to any other Indebtedness of the
Company or such Guarantor unless such Indebtedness is also contractually
subordinated in right of payment to the Notes and the applicable Note Guarantee
on substantially identical terms; provided, however, that no Indebtedness will
be deemed to be contractually subordinated in right of payment to any other
Indebtedness of the Company solely by virtue of being unsecured or by virtue of
being secured on a first or junior Lien basis.
(f) For purposes of determining compliance with any U.S. dollar
denominated restriction on the Limitation on Indebtedness where the Indebtedness
Incurred is denominated in a different currency, the amount of the Indebtedness
will be the U.S. Dollar Equivalent determined on the date of the Incurrence of
the Indebtedness, provided, however, that if any of the Indebtedness denominated
in a different currency is governed by a Currency Agreement relating to U.S.
dollars, covering all principal, premium, if any, and interest payable on the
Indebtedness, the amount of Indebtedness expressed in U.S. dollars will be as
provided in the Currency Agreement. The principal amount of any Refinancing
Indebtedness Incurred in the same currency as the Indebtedness being Refinanced
will be the U.S. Dollar Equivalent of the Indebtedness Refinanced, except to the
extent that (i) the U.S. Dollar Equivalent was determined based on a Currency
Agreement, in which case the Refinancing Indebtedness will be determined
compliance the preceding sentence, and (ii) the principal amount of the
Refinancing Indebtedness exceeds the principal amount of the Indebtedness being
Refinanced, in which case the U.S. Dollar Equivalent of the excess will be
determined on the date the Refinancing Indebtedness is Incurred.
Section 4.10 Asset Sales.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be)
receives consideration at the time of the Asset Sale at least equal to the
Fair Market Value of the assets or Equity Interests issued or sold or
otherwise disposed of; and
(2) at least 75% of the consideration received in the Asset Sale by
the Company or such Restricted Subsidiary is in the form of cash. For
purposes of this provision, each of the following will be deemed to be
cash:
56
(A) any liabilities, as shown on the Company's most recent
consolidated balance sheet, of the Company or any Restricted
Subsidiary (other than contingent liabilities and liabilities that
are by their terms subordinated to the Notes or any Note Guarantor)
that are assumed by the transferee of any such assets pursuant to a
customary novation agreement that releases the Company or such
Restricted Subsidiary from further liability;
(B) any securities, notes or other obligations received by the
Company or any such Restricted Subsidiary from such transferee that
are contemporaneously, subject to ordinary settlement periods,
converted by the Company or such Restricted Subsidiary into cash, to
the extent of the cash received in that conversion; and
(C) any stock or assets of the kind referred to in clauses (2)
or (4) of the next paragraph of this Section 4.10;
provided that the 75% limitation referred to in clause (2) above will not apply
to any Asset Sale if the after-tax cash proceeds received therefrom, as
determined in good faith by the Company's Board of Directors, is equal to or
greater than what the after-tax cash proceeds would have been had the Asset Sale
complied with the aforementioned 75% limitation.
Within 360 days after the receipt of any Net Proceeds from an Asset Sale,
the Company (or the applicable Restricted Subsidiary, as the case may be) may
apply such Net Proceeds:
(1) to repay Specified Senior Indebtedness of the Company or
Indebtedness (other than Disqualified Stock) of any Restricted Subsidiary
(in each case other than Indebtedness owed to the Company or an Affiliate
thereof) and, if any such Indebtedness repaid is revolving credit
Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or any
Capital Stock of, another Related Business, if, after giving effect to any
such acquisition of Capital Stock (including the acquisition of a minority
interest in) the Related Business is or becomes a Restricted Subsidiary of
the Company;
(3) to make a capital expenditure; or
(4) to acquire other assets that are not classified as current
assets under U.S. GAAP and that are used or useful in a Related Business;
provided, however, that if the Company or any Restricted Subsidiary
contractually commits within such 360-day period to apply such Net Proceeds
within one year of such contractual commitment in accordance with the above
clauses (2), (3) or (4), subject to only customary conditions which shall not
include a financing condition, and such Net Proceeds are subsequently applied as
contemplated in such contractual commitment, then the requirement for the
application of Net Proceeds set forth in this paragraph shall be considered
satisfied.
Pending the final application of any Net Proceeds, the Company may
temporarily reduce revolving credit borrowings or otherwise invest the Net
Proceeds in any manner that is not prohibited by this Indenture.
Any Net Proceeds from Asset Sales that are not applied or invested as
provided in the second paragraph of this Section 4.10 will constitute "Excess
Proceeds." On the 365(th) day after an Asset Sale, if the aggregate amount of
Excess Proceeds exceeds $10.0 million, the Company will make an Asset Sale
57
Offer to all Holders of Notes and all holders of other Indebtedness that is pari
passu with the Notes containing provisions similar to those set forth in this
Indenture with respect to offers to purchase or redeem with the proceeds of
sales of assets to purchase the maximum principal amount of Notes and such other
pari passu Indebtedness that may be purchased out of the Excess Proceeds. The
offer price in any Asset Sale Offer will be equal to 100% of the principal
amount plus accrued and unpaid interest and Liquidated Damages, if any, to the
date of purchase, and will be payable in cash. If any Excess Proceeds remain
after consummation of an Asset Sale Offer, the Company may use those Excess
Proceeds for any purpose not otherwise prohibited by this Indenture. If the
aggregate principal amount of Notes and other pari passu Indebtedness tendered
into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee
will select the Notes and such other pari passu Indebtedness to be purchased on
a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess
Proceeds will be reset at zero.
The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent those laws and regulations are applicable in connection with each
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with the Asset Sale
provisions of this Indenture, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations under the Asset Sale provisions of this Indenture by virtue of such
compliance.
Section 4.11 Transactions with Affiliates.
(a) The Company shall not, and shall not permit any Restricted Subsidiary
to, enter into or permit to exist any transaction, including the purchase, sale,
lease or exchange of any property, employee compensation arrangements or the
rendering of any service, with any Affiliate of the Company (an "Affiliate
Transaction") unless the terms of that transaction:
(1) are no less favorable to the Company or the Restricted
Subsidiary than those that could be obtained at the time of the
transaction in arm's-length dealings with a Person who is not an
Affiliate;
(2) if the Affiliate Transaction involves an amount in excess of
$10.0 million, have been approved by a majority of the disinterested
members of the Board of Directors of the Company; and
(3) if the Affiliate Transaction involves an amount in excess of
$20.0 million, have been determined by (A) a nationally recognized
investment banking firm to be fair, from a financial standpoint, to the
Company and the Restricted Subsidiaries or (B) an accounting or appraisal
firm nationally recognized in making determinations of this kind to be on
terms that are not less favorable to the Company and the Restricted
Subsidiaries than the terms that could be obtained in an arms-length
transaction from a Person that is not an Affiliate; provided, however,
that this clause (3) shall not apply to any transaction that is an
Affiliate Transaction solely because another party to such transaction is
deemed an Affiliate of the Company through its direct or indirect
relationship with any Permitted Holder.
(b) The provisions of the prior paragraph (a) shall not prohibit:
(1) any Restricted Payment permitted to be paid under Section 4.07
hereof;
58
(2) any issuance of securities, or other payments, awards or grants
in cash, securities or otherwise under, or the funding of, employment
arrangements, stock options and stock ownership plans approved by the
Board of Directors of the Company;
(3) the grant of stock options or similar rights to employees and
directors of the Company or those of the Restricted Subsidiaries under
plans or agreements approved by the Board of Directors of the Company;
(4) loans or advances to employees, directors, officers or
consultants (A) in the ordinary course of business or (B) otherwise in an
aggregate amount not to exceed $5.0 million in the aggregate outstanding
at any one time;
(5) reasonable fees, compensation or employee benefit arrangements
to and indemnity provided for the benefit of employees, directors,
officers or consultants of the Company or any of its Subsidiaries in the
ordinary course of business;
(6) any transaction exclusively between or among the Company and the
Restricted Subsidiaries or between or among Restricted Subsidiaries;
provided, however, that the transactions are not otherwise prohibited by
this Indenture;
(7) any agreement with an Affiliate in existence on the Issue Date
and previously provided to the Trustee;
(8) the issuance or sale of any Capital Stock of the Company other
than Disqualified Stock; and
(9) payments or cancellations of loans to employees or consultants
of the Company or any Restricted Subsidiary that are approved by a
majority of the Board of Directors of the Company in good faith and that
are otherwise permitted under this Indenture not to exceed $2.0 million in
the aggregate.
Section 4.12 Liens.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien of any kind on any asset now owned or hereafter acquired, except
Permitted Liens and Liens to secure Indebtedness pursuant to clauses (b)(1) and
(b)(9) of Section 4.09 hereof, unless:
(1) in the case of any Lien securing Subordinated Obligations,
effective provision is made to secure the Notes or such Note Guarantee, as
the case may be, with a Lien on the same collateral that is prior to the
Lien securing such Subordinated Obligations; and
(2) in all other cases, the Notes or such Note Guarantee, as the
case may be, are secured on an equal and ratable basis.
Section 4.13 Limitation on Assets of Non-Guarantors.
The Company shall not permit the Restricted Subsidiaries that are not
Guarantors to collectively hold at any one time more than 33 1/3% (the "Trigger
Percentage") of the sum of the Total Assets plus the total assets of all
Restricted Subsidiaries that are not Guarantors; provided that in the event
that, and
59
for so long as, STATS ChipPAC Korea is not able to Guarantee the Notes because
the Korea Approvals have not been obtained, the Trigger Percentage shall equal
50.0%.
Section 4.14 Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect:
(1) its corporate existence, and the corporate, partnership or other
existence of each of its Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of
the Company or any such Subsidiary; and
(2) the rights (charter and statutory), licenses and franchises of
the Company and its Subsidiaries; provided, however, that the Company
shall not be required to preserve any such right, license or franchise, or
the corporate, partnership or other existence of any of its Subsidiaries,
if the Board of Directors shall determine that the preservation thereof is
no longer desirable in the conduct of the business of the Company and its
Subsidiaries, taken as a whole, and that the loss thereof is not adverse
in any material respect to the Holders of the Notes.
Section 4.15 Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, the Company will make an
offer (a "Change of Control Offer") to each Holder to repurchase all or any part
(equal to $1,000 or an integral multiple of $1,000) of that Holder's Notes at a
purchase price in cash equal to 101% of the aggregate principal amount of Notes
repurchased plus accrued and unpaid interest and Liquidated Damages, if any, on
the Notes repurchased to the date of purchase, subject to the rights of Holders
on the relevant record date to receive interest due on the relevant interest
payment date (the "Change of Control Payment"). Within 30 days following any
Change of Control, the Company will mail or cause to be mailed a notice to each
Holder describing the transaction or transactions that constitute the Change of
Control and stating:
(1) that the Change of Control Offer is being made pursuant to this
Section 4.15 and that all Notes tendered will be accepted for payment;
(2) the purchase price and the purchase date, which shall be no
earlier than 30 days and no later than 60 days from the date such notice
is mailed; provided that in no event shall such date by later than 90 days
after the occurrence of such Change of Control (the "Change of Control
Payment Date");
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Change
of Control Payment, all Notes accepted for payment pursuant to the Change
of Control Offer will cease to accrue interest after the Change of Control
Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to a
Change of Control Offer will be required to surrender the Notes, with the
form entitled "Option of Holder to Elect Purchase" attached to the Notes
completed, or transfer by book-entry transfer, to the Paying Agent at the
address specified in the notice prior to the close of business on the
third Business Day preceding the Change of Control Payment Date;
60
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of Notes delivered for purchase, and a
statement that such Holder is withdrawing his election to have the Notes
purchased; and
(7) that Holders whose Notes are being purchased only in part will
be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered, which unpurchased portion must be equal to
$1,000 in principal amount or an integral multiple thereof.
The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent those laws and regulations are applicable in connection with the
repurchase of the Notes as a result of a Change in Control. To the extent that
the provisions of any securities laws or regulations conflict with the
provisions of Sections 3.09 or 4.15 hereof, the Company will comply with the
applicable securities laws and regulations and will not be deemed to have
breached its obligations under Section 3.09 hereof or this Section 4.15 by
virtue of such compliance.
(b) On the Change of Control Payment Date, the Company will, to the extent
lawful:
(1) accept for payment all Notes or portions of Notes properly
tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all Notes or portions of Notes properly
tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes
properly accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions of Notes being purchased
by the Company.
The Paying Agent will promptly mail (but in any case not later than five
days after the Change of Control Payment Date) to each Holder of Notes properly
tendered the Change of Control Payment for such Notes, and the Trustee will
promptly authenticate and mail (or cause to be transferred by book entry) to
each Holder a new Note equal in principal amount to any unpurchased portion of
the Notes surrendered, if any. The Company will publicly announce the results of
the Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.
(c) Notwithstanding anything to the contrary in this Section 4.15, the
Company will not be required to make a Change of Control Offer upon a Change of
Control if (1) a third party makes the Change of Control Offer in the manner, at
the times and otherwise in compliance with the requirements set forth in this
Section 4.15 and Section 3.09 hereof and purchases all Notes properly tendered
and not withdrawn under the Change of Control Offer, or (2) notice of redemption
has been given pursuant to Section 3.07 hereof, unless and until there is a
default in payment of the applicable redemption price.
Section 4.16 Note Guarantee by STATS ChipPAC Korea.(1)
(a) The Company will, and will cause STATS ChipPAC Korea to, (1) use its
best efforts to obtain, as soon as practicable following the Issue Date, all
required regulatory approvals, including
- -----------------
(1) Entire section to be deleted and replaced with "[Intentionally Omitted]' in
the event the Korea Guarantee is in place at Closing.
61
without limitation, regulatory approval from the Bank of Korea, required for the
valid issuance of STATS ChipPAC Korea's Note Guarantee (the "Korea Approvals")
and, in any event, within 30 days following the Issue Date (the "Korea
Deadline") and (2) validly issue the STATS ChipPAC Korea Note Guarantee (the
"Korea Guarantee"). The Company will cause STATS ChipPAC Korea to provide the
Korea Guarantee on the Business Day following receipt of the Korea Approvals (if
the Korea Approvals are obtained within the 30-day period following the Issue
Date).
(b) If, despite the best efforts described in clause (a) above, the Korea
Approvals are not obtained and the Korea Guarantee is not validly issued prior
to the Korea Deadline (a "Korea Guarantee Offer Event"), then the Company will
make an offer (a "Korea Guarantee Offer") to each Holder to repurchase all or
any part (equal to $1,000 or an integral multiple of $1,000) of that Holder's
Notes at a purchase price in cash equal to 101% of the aggregate principal
amount of Notes repurchased plus accrued and unpaid interest on the Notes
repurchased to the date of purchase, subject to the rights of Holders on the
relevant record date to receive interest due on the relevant interest payment
date (the "Korea Guarantee Payment"). Within 20 days following a Korea Guarantee
Offer Event, the Company will mail or cause to be mailed a notice to each Holder
describing the Korea Guarantee Offer Event and stating:
(1) that the Korea Guarantee Offer is being made pursuant to this
Section 4.16 and that all Notes tendered will be accepted for payment;
(2) the purchase price and the purchase date, which shall be no
earlier than 30 days and no later than 60 days from the date such notice
is mailed; provided that in no event shall such date by later than 90 days
after the occurrence of such Korea Guarantee Offer Event (the "Korea
Guarantee Offer Payment Date");
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Korea
Guarantee Payment, all Notes accepted for payment pursuant to the Korea
Guarantee Offer will cease to accrue interest after the Korea Guarantee
Offer Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to a
Korea Guarantee Offer will be required to surrender the Notes, with the
form entitled "Option of Holder to Elect Purchase" attached to the Notes
completed, or transfer by book-entry transfer, to the Paying Agent at the
address specified in the notice prior to the close of business on the
third Business Day preceding the Korea Guarantee Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the second
Business Day preceding the Korea Guarantee Offer Payment Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of Notes delivered for purchase, and a
statement that such Holder is withdrawing his election to have the Notes
purchased; and
(7) that Holders whose Notes are being purchased only in part will
be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered, which unpurchased portion must be equal to
$1,000 in principal amount or an integral multiple thereof.
The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent those laws and regulations are applicable in connection with the
repurchase of the Notes as a result of a Korea Guarantee Offer Event. To the
extent that the provisions of any securities laws or regulations conflict with
the provisions of Sections 3.09 or
62
4.16 hereof, the Company will comply with the applicable securities laws and
regulations and will not be deemed to have breached its obligations under
Section 3.09 hereof or this Section 4.16 by virtue of such compliance.
(c) On the Korea Guarantee Offer Payment Date, the Company will, to the
extent lawful:
(1) accept for payment all Notes or portions of Notes properly
tendered pursuant to the Korea Guarantee Offer;
(2) deposit with the Paying Agent an amount equal to the Korea
Guarantee Payment in respect of all Notes or portions of Notes properly
tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes
properly accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions of Notes being purchased
by the Company.
(d) The Paying Agent will promptly mail (but in any case not later than
five days after the Korea Guarantee Offer Payment Date) to each Holder of Notes
properly tendered the Korea Guarantee Offer Payment for such Notes, and the
Trustee will promptly authenticate and mail (or cause to be transferred by book
entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if any. The Company will publicly announce the
results of the Korea Guarantee Offer on or as soon as practicable after the
Korea Guarantee Offer Payment Date.
(e) If, despite the best efforts described in clause (a) above, the Korea
Approvals are not obtained and the Korea Guarantee is not validly issued prior
to the Issue Date or the Korea Deadline, then the interest rate on the Notes
will accrue at a rate that is 0.25% higher than the then applicable interest
rate on the Notes beginning on the 31(st) day following the Issue Date through
and including the earlier to occur of the date on which (1) both the Korea
Approvals have been obtained and the Korea Guarantee is validly issued and (2)
the Notes mature.
Section 4.17 No Amendment to Subordination Provisions.
(a) The Notes issued pursuant to this Indenture are hereby designated as
"Parent Designated Senior Indebtedness" for purposes of the Subordinated Note
Indenture.
(b) Without the consent of the Holders of at least a majority in aggregate
principal amount of the Notes then outstanding, the Company will not, and will
not permit any of its Subsidiaries to, amend, modify or alter the Subordinated
Note Indenture in any way to:
(1) increase the rate of or change the time for payment of interest
on any Subordinated Notes;
(2) increase the principal of, advance the final maturity date of or
shorten the Weighted Average Life to Maturity of any Subordinated Notes;
(3) alter the redemption provisions or the price or terms at which
the Company or any of its Subsidiaries is required to offer to purchase
any Subordinated Notes; or
(4) amend the provisions of Article 11 of the Subordinated Note
Indenture or Article 4 of the Second Supplemental Indenture to the
Subordinated Note Indenture, dated as of October 11, 2004 (which relate to
subordination).
63
Section 4.18 Payments for Consent.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration to or for the benefit of any Holder of Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Notes unless such consideration is offered to be paid
and is paid to all Holders of the Notes that consent, waive or agree to amend in
the time frame set forth in the solicitation documents relating to such consent,
waiver or agreement.
Section 4.19 Payment of Additional Amounts.
All payments of, or in respect of, principal of, premium and interest on,
the Notes or under the Note Guarantees will be made without withholding or
deduction for, or on account of, any present or future taxes, duties,
assessments or governmental charges of whatever nature imposed or levied by or
on behalf of Singapore or any other jurisdiction in which any Guarantor is
organized or resident for tax purposes or from or through which payment is made,
(including, in each case, any political subdivision thereof) (the "Relevant
Jurisdiction") or any authority thereof or therein having power to tax unless
these taxes, duties, assessments or governmental charges are required to be
withheld or deducted. In that event, the Company (or the Guarantor, as the case
may be) agrees to pay such additional amounts as will result (after deduction of
such taxes, duties, assessments or governmental charges and any additional
taxes, duties, assessments or governmental charges of the Relevant Jurisdiction)
in the payment to each Holder of a Note of the amounts that would have been
payable in respect of such Notes or under the Note Guarantees had no withholding
or deduction been required (such amounts, "Additional Amounts"), except that no
Additional Amounts shall be payable for or on account of:
(a) any tax, duty, assessment or other governmental charge that would not
have been imposed but for the fact that such Holder:
(1) has a present or former connection with the Relevant
Jurisdiction other than the mere ownership of, or receipt of payment
under, such Note or under the Note Guarantees; or
(2) presented such Note more than 30 days after the date on which
the payment in respect of such Note first became due and payable or
provided for, whichever is later, except to the extent that the Holder
would have been entitled to such Additional Amounts if it had presented
such Note for payment on any day within such period of 30 days;
(b) any estate, inheritance, gift, sale, transfer, personal property or
similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge which is
payable otherwise than by deduction or withholding from payment of interest or
principal on the Notes or under the Note Guarantees;
(d) any tax, duty, assessment or other governmental charge that is imposed
or withheld by reason of the failure to comply by the Holder or the Beneficial
Owner of a Note with a request by the Company addressed to the Holder (1) to
provide information concerning the nationality, residence or identity of the
Holder or such Beneficial Owner or (2) to make any declaration or other similar
claim or satisfy any information or reporting requirement, which, in the case of
(1) and (2), is required or imposed by a statute, treaty, regulation or
administrative practice of the taxing jurisdiction as a precondition to
exemption from all or part of such tax, duty, assessment or other governmental
charge; or
64
(e) any combination of the items listed above;
nor shall Additional Amounts be paid with respect to any payment of the
principal of or premium or interest on any Note to any Holder who is a fiduciary
or partnership or other than the sole Beneficial Owner of the payment to the
extent that, if the Beneficial Owner had held the Note directly, such Beneficial
Owner would not have been entitled to the Additional Amounts.
If any taxes are required to be deducted or withheld from payments on the
Notes or under the Note Guarantees, the Company shall promptly provide a receipt
of the payment of such taxes (or if such receipt is not available, any other
evidence of payment reasonably acceptable to the Trustee).
Any reference herein to the payment of the principal of or interest on any
Note shall be deemed to include the payment of Additional Amounts provided for
herein to the extent that, in such context, Additional Amounts are, were or
would be payable hereunder.
Section 4.20 Additional Note Guarantees.
If, after the Issue Date, the Company forms or otherwise acquires,
directly or indirectly, any Restricted Subsidiary, the Company shall cause the
Restricted Subsidiary to Guarantee the Notes under a Note Guarantee on the terms
and conditions in this Indenture and the Subsidiary Guarantee Agreement;
provided, however, in the event the Company or a Restricted Subsidiary forms or
otherwise acquires, directly or indirectly, a Restricted Subsidiary organized
under the laws of a jurisdiction other than the United States and the
jurisdiction prohibits by law, regulation or order the Restricted Subsidiary
from providing a Guarantee, the Company shall use all commercially reasonable
efforts, including pursuing required waivers, over a period up to one year, to
provide the Guarantee; provided, however, that the Company shall not be required
to use commercially reasonable efforts relating to the Subsidiaries for more
than a one-year period or a shorter period as the Board of Directors of the
Company shall determine in good faith that it has used all commercially
reasonable efforts. If the Company or the Restricted Subsidiary is unable during
the period to obtain an enforceable Note Guarantee in the jurisdiction, then the
Restricted Subsidiary shall not be required to provide a Note Guarantee so long
as the Restricted Subsidiary does not Guarantee any other Indebtedness of the
Company or the Restricted Subsidiaries. The form of such Note Guarantee is
attached as Exhibit E hereto.
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.
The Company shall not consolidate with or merge with or into, or convey,
transfer or lease, in one transaction or a series of related transactions, all
or substantially all its assets to, any Person, unless:
(1) the resulting, surviving or transferee Person, referred to as a
"Successor Company," shall be a Person organized and existing under the
laws of Singapore or of the United States of America, any State thereof or
the District of Columbia and the Successor Company, if not the Company,
shall expressly assume, by a supplemental indenture executed and delivered
to the Trustee, in form satisfactory to the Trustee, all the obligations
of the Company under this Indenture, the Notes and the Registration Rights
Agreement;
(2) immediately after giving effect to the transaction, and treating
any Indebtedness which becomes an obligation of the Successor Company or
any Subsidiary as a result of the
65
transaction as having been Incurred by the Successor Company or the
Subsidiary at the time of the transaction, no Default shall have occurred
and be continuing;
(3) immediately after giving effect to the transaction, (A) the
Successor Company would be able to Incur an additional $1.00 of
Indebtedness under paragraph (a) of Section 4.09 hereof or (B) the
Consolidated Coverage Ratio for the Successor Company and its Restricted
Subsidiaries would be equal to or greater than the same ratio for the
Company and its Restricted Subsidiaries immediately prior to the
transaction;
(4) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that the
consolidation, merger or transfer and any supplemental indenture comply
with this Indenture;
(5) if the merging corporation is organized and existing under the
laws of Singapore and the Successor Company is organized and existing
under the laws of the United States of America, any State thereof or the
District of Columbia or if the merging corporation is organized and
existing under the laws of the United States of America, any State thereof
or the District of Columbia and the Successor Company is organized and
existing under the laws of Singapore (any such event, a "Foreign
Jurisdiction Merger"), the Company shall have delivered to the Trustee an
Opinion of Counsel that the Holders of Notes will not recognize income,
gain or loss for U.S. Federal income tax purposes as a result of the
transaction and will be taxed in the same manner and on the same amounts
and at the same times as would have been the case if the transaction had
not occurred; and
(6) in the event of a Foreign Jurisdiction Merger, the Company shall
have delivered to the Trustee an Opinion of Counsel from Singapore or
other applicable jurisdiction that (A) any payment of interest or
principal under or relating to the Notes or the Note Guarantees will,
after the consolidation, merger, conveyance, transfer or lease of assets,
be exempt from the Taxes described under Section 3.07(e) hereof and (B) no
other taxes on income, including capital gains, will be payable by Holders
of the Notes under the laws of Singapore or any other jurisdiction where
the Successor Company is or becomes organized, resident or engaged in
business for tax purposes relating to the acquisition, ownership or
disposition of the Notes, including the receipt of interest or principal
thereon, provided that the Holder does not use or hold, and is not deemed
to use or hold the Notes in carrying on a business in Singapore or other
jurisdiction where the Successor Company is or becomes organized, resident
or engaged in business for tax purposes;
provided, however, that clause (3) above shall not apply (A) if, in the good
faith determination of the Board of Directors of the Company, whose
determination shall be evidenced by a resolution of the Board of Directors, the
principal purpose and effect of the transaction is to change the jurisdiction of
incorporation of the Company or (B) in the case of a merger of the Company with
or into one of its Wholly Owned Subsidiaries.
The Successor Company shall be the successor to the Company and shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture, the Notes and the Registration Rights
Agreement and the Company, except in the case of a lease, shall be automatically
released from its obligations under this Indenture, the Notes and the
Registration Rights Agreement.
66
Section 5.02 Merger, Consolidation, or Sale of Assets of Guarantors.
Except as otherwise provided in Section 2.05 of the Subsidiary Guarantee
Agreement, no Guarantor may consolidate with or merge with or into, or convey,
transfer or lease, in one transaction or a series of transactions, all or
substantially all of its assets to any Person, unless:
(a) the resulting, surviving or transferee Person if not the Guarantor
shall be a Person organized and existing under the laws of the jurisdiction
under which the Guarantor was organized or under the laws of the United States
of America, or any State thereof or the District of Columbia, and the Person
shall expressly assume, by executing a supplemental indenture satisfactory to
the Trustee, all the obligations of the Guarantor under this Agreement, the
Subsidiary Guarantee Agreement and the Registration Rights Agreement;
(b) immediately after giving effect to the transaction or transactions on
a pro forma basis, and treating any Indebtedness which becomes an obligation of
the resulting, surviving or transferee Person as a result of the transaction as
having been issued by the Person at the time of the transaction, no Default
shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that the consolidation,
merger or transfer and the supplemental indenture complies with this Agreement.
The provisions of clauses (a) and (b) above shall not apply to any one or
more transactions involving a Guarantor which constitute an Asset Sale if such
transactions are made in compliance with the applicable provisions of Section
4.10 hereof.
In case of any such consolidation, merger, conveyance, transfer, lease, or
sale, and upon the assumption by the successor Person, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the Note Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this Agreement and the
Subsidiary Guarantee Agreement to be performed by the Guarantor, such successor
Person will succeed to and be substituted for the Guarantor with the same effect
as if it had been named herein and therein as a Guarantor. Such successor Person
thereupon may cause to be signed any or all of the Note Guarantees to be
endorsed upon all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee. All the Note
Guarantees so issued will in all respects have the same legal rank and benefit
under this Agreement and the Subsidiary Guarantee Agreement as the Note
Guarantees theretofore and thereafter issued in accordance with the terms of
this Agreement and the Subsidiary Guarantee Agreement as though all of such Note
Guarantees had been issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, and notwithstanding
clauses (a) and (c) of this Section 5.02, nothing contained in this Agreement,
the Subsidiary Guarantee Agreement or in any of the Notes will prevent any
consolidation or merger of a Guarantor with or into the Company or another
Guarantor, or will prevent any sale or conveyance of the property of a Guarantor
as an entirety or substantially as an entirety to the Company or another
Guarantor.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
67
Each of the following is an "Event of Default":
(1) default for 30 days in the payment when due of interest on, or
Liquidated Damages, if any, or any Additional Amounts, with respect to,
the Notes;
(2) default in the payment when due (at Stated Maturity, upon
redemption, required repurchase, declaration or otherwise) of the
principal of, or premium, if any, on the Notes;
(3) failure by the Company or any Guarantor to comply with the
provisions of Section 5.01 hereof;
(4) failure by the Company or any of its Restricted Subsidiaries for
30 days after notice to the Company by the Trustee or the Holders of at
least 25% in aggregate principal amount of the Notes then outstanding
voting as a single class to comply with any of its obligations under
Section 4.15 hereof other than a failure to purchase the Notes as required
thereunder, Section 4.10 hereof other than a failure to purchase the Notes
as required thereunder, and Sections 4.03, 4.07, 4.08, 4.09, 4.11 and 4.20
hereof;
(5) failure by the Company or any of its Restricted Subsidiaries for
60 days after notice to the Company by the Trustee or the Holders of at
least 25% in aggregate principal amount of the Notes then outstanding
voting as a single class to comply with any of the other agreements in
this Indenture or the Subsidiary Guarantee Agreement;
(6) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any
of its Restricted Subsidiaries), whether such Indebtedness or Guarantee
now exists, or is created after the date of this Indenture, if that
default:
(A) is caused by a failure to pay principal of such
Indebtedness prior to the expiration of the applicable grace period
provided in such Indebtedness on the date of such default (a
"Payment Default"); or
(B) results in the acceleration of such Indebtedness prior to
its express maturity,
and, in each case, the total unpaid principal amount of any such
Indebtedness, together with the total unpaid principal amount of any
other such Indebtedness under which there has been a Payment Default
or the maturity of which has been so accelerated, aggregates $15.0
million or more;
(7) any judgment or decree for the payment of money in excess of
$15.0 million is entered against the Company or a Significant Subsidiary,
remains outstanding for a period of 60 days following the judgment and is
not discharged, waived or stayed within 10 days after notice thereof to
the Company by the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding, voting as a single class;
(8) the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries of the
Company that, taken together, would constitute a Significant Subsidiary
pursuant to or within the meaning of Bankruptcy Law:
(A) commences a voluntary case,
68
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a custodian of it or for
all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) generally is not paying its debts as they become due;
(9) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of
Restricted Subsidiaries of the Company that, taken together, would
constitute a Significant Subsidiary in an involuntary case;
(B) appoints a custodian of the Company or any of its
Restricted Subsidiaries that is a Significant Subsidiary or any
group of Restricted Subsidiaries of the Company that, taken
together, would constitute a Significant Subsidiary or for all or
substantially all of the property of the Company or any of its
Restricted Subsidiaries that is a Significant Subsidiary or any
group of Restricted Subsidiaries of the Company that, taken
together, would constitute a Significant Subsidiary; or
(C) orders the liquidation of the Company or any of its
Restricted Subsidiaries that is a Significant Subsidiary or any
group of Restricted Subsidiaries of the Company that, taken
together, would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days; or
(10) except as permitted by this Indenture, any Note Guarantee of a
Significant Subsidiary is held in any judicial proceeding to be
unenforceable or invalid or ceases for any reason to be in full force and
effect, other than in compliance with the terms of the Note Guarantee, or
any Guarantor, or any Person acting on behalf of any Guarantor, denies or
disaffirms its obligations under its Note Guarantee.
The Company shall deliver to the Trustee, within 30 days after the occurrence
thereof, written notice in the form of an Officers' Certificate of any Event of
Default under clause (6) or (10) and any event which with the giving of notice
or the lapse of time would become an Event of Default under clause (4), (5) or
(7), its status and what action the Company s taking or proposes to take with
respect thereto.
Section 6.02 Acceleration.
In the case of an Event of Default specified in clause (8) or (9) of
Section 6.01 hereof, with respect to the Company, any Restricted Subsidiary of
the Company that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary, all outstanding Notes will become due and payable immediately
without further action or notice. If any other Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of the then outstanding Notes may declare all the Notes to be due and
payable immediately; provided that so long as any Indebtedness permitted to be
incurred pursuant to the Credit Facilities is outstanding, such acceleration
will not be effective until the earlier of (1) the
69
acceleration of such Indebtedness under the Credit Facilities or (2) five
Business Days after receipt by the Company or such Guarantor of written notice
of such acceleration.
Upon any such declaration, the Notes shall become due and payable
immediately.
The Holders of a majority in aggregate principal amount of the then
outstanding Notes by written notice to the Trustee may, on behalf of all of the
Holders, rescind an acceleration and its consequences, if the rescission would
not conflict with any judgment or decree and if all existing Events of Default
(except nonpayment of principal, interest or premium or Liquidated Damages, if
any, that has become due solely because of the acceleration) have been cured or
waived.
If an Event of Default occurs on or after November 15, 2008 by reason of
any willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding payment of the premium that the Company
would have had to pay if the Company then had elected to redeem the Notes
pursuant to Section 3.07 hereof, then, upon acceleration of the Notes, an
equivalent premium shall also become and be immediately due and payable, to the
extent permitted by law, anything in this Indenture or in the Notes to the
contrary notwithstanding. If an Event of Default occurs prior to November 15,
2008 by reason of any willful action (or inaction) taken (or not taken) by or on
behalf of the Company with the intention of avoiding the prohibition on
redemption of the Notes prior to such date, then, upon acceleration of the
Notes, an additional premium shall also become and be immediately due and
payable, to the extent permitted by law, in an amount, for each of the years
beginning on November 15 of the years set forth below, as set forth below
(expressed as a percentage of the principal amount of the Notes on the date of
payment that would otherwise be due but for the provisions of this sentence):
YEAR PERCENTAGE
---- ----------
2004............................................................................ 6.75000%
2005............................................................................ 5.90625%
2006............................................................................ 5.06250%
2007............................................................................ 4.21875%
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal, premium and Liquidated
Damages, if any, and interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or omission
by the Trustee or any Holder of a Note in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of the
then outstanding Notes by notice to the Trustee may on behalf of the Holders of
all of the Notes waive an existing Default or Event of Default and its
consequences hereunder, except a continuing Default or Event of Default in the
payment of the principal of, premium and Liquidated Damages, if any, or interest
on, the Notes (including in connection with an offer to purchase); provided,
however, that the Holders of a majority in aggregate principal amount of the
then outstanding Notes may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration. Upon
any such waiver, such
70
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
Section 6.05 Control by Majority.
Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the Trustee determines
may be unduly prejudicial to the rights of other Holders of Notes or that may
involve the Trustee in personal liability.
Section 6.06 Limitation on Suits.
A Holder may pursue a remedy with respect to this Indenture or the Notes
only if:
(1) such Holder gives to the Trustee written notice that an Event of
Default is continuing;
(2) Holders of at least 25% in aggregate principal amount of the
then outstanding Notes make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer and, if requested, provide to the
Trustee security or indemnity reasonably satisfactory to the Trustee
against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of security or indemnity; and
(5) during such 60-day period, Holders of a majority in aggregate
principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with such request.
A Holder of a Note may not use this Indenture to prejudice the rights of
another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
Section 6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal, premium and Liquidated
Damages, if any, and interest on the Note, on or after the respective due dates
expressed in the Note (including in connection with an offer to purchase), or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) hereof occurs
and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount of
principal of, premium and Liquidated Damages, if any, and interest remaining
unpaid on, the Notes and interest on overdue principal and, to the extent
lawful, interest and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 6.09 Trustee May File Proofs of Claim.
71
The Trustee is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall pay
out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.07 hereof, including payment of all compensation, expenses
and liabilities incurred, and all advances made, by the Trustee and the
costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes
for principal, premium and Liquidated Damages, if any, and interest,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes for principal, premium and Liquidated
Damages, if any and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of
a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
aggregate principal amount of the then outstanding Notes.
72
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
will exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee will be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee will examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(1) this paragraph does not limit the effect of paragraph (b) of
this Section 7.01;
(2) the Trustee will not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(3) the Trustee will not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), and (c) of this Section 7.01.
(e) No provision of this Indenture will require the Trustee to expend or
risk its own funds or incur any liability. The Trustee will be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such Holder has offered to the Trustee security
and indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee will not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 7.02 Rights of Trustee.
73
(a) The Trustee may conclusively rely upon any document believed by it to
be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee will not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel will be
full and complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(c) The Trustee may act through its attorneys and agents and will not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee will not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company will be sufficient if signed by an
Officer of the Company.
(f) The Trustee will be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders unless such Holders have offered to the Trustee reasonable indemnity
or security against the losses, liabilities and expenses that might be incurred
by it in compliance with such request or direction.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Company or any Affiliate of
the Company with the same rights it would have if it were not Trustee. However,
in the event that the Trustee acquires any conflicting interest it must
eliminate such conflict within 90 days, apply to the SEC for permission to
continue as trustee (if this Indenture has been qualified under the TIA) or
resign. Any Agent may do the same with like rights and duties. The Trustee is
also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustee's Disclaimer.
The Trustee will not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it will not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it will not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication. The Trustee shall have
no duty to inquire as to the performance of the Company with respect to the
covenants contained in Article 4 and 5 hereof. In addition, the Trustee shall
not be deemed to have knowledge of an Event of Default except any Event of
Default pursuant to Sections 6.01(a) or (b) hereof or any Default or Event of
Default of which the Trustee shall have received written notification.
Section 7.05 Notice of Defaults.
74
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee will mail to Holders of Notes a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment of principal of, premium or
Liquidated Damages, if any, or interest on, any Note, the Trustee may withhold
the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of the Holders
of the Notes.
Section 7.06 Reports by Trustee to Holders of the Notes.
(a) Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, and for so long as Notes remain outstanding, the
Trustee will mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with TIA Section 313(a) (but if no event described
in TIA Section 313(a) has occurred within the twelve months preceding the
reporting date, no report need be transmitted). The Trustee also will comply
with TIA Section 313(b)(2). The Trustee will also transmit by mail all reports
as required by TIA Section 313(c).
(b) A copy of each report at the time of its mailing to the Holders of
Notes will be mailed by the Trustee to the Company and filed by the Trustee with
the SEC and each stock exchange on which the Notes are listed in accordance with
TIA Section 313(d). The Company will promptly notify the Trustee when the Notes
are listed on any stock exchange.
Section 7.07 Compensation and Indemnity.
(a) The Company will pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation will not be limited by any law on compensation of a
trustee of an express trust. The Company will reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses will
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
(b) The Company will indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture and the Subsidiary Guarantee
Agreement against the Company and the Guarantors (including this Section 7.07)
and defending itself against any claim (whether asserted by the Company, the
Guarantors, any Holder or any other Person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder, except to the
extent any such loss, liability or expense may be attributable to its negligence
or bad faith. The Trustee will notify the Company promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the Company
will not relieve the Company of its obligations hereunder. The Company will
defend the claim and the Trustee will cooperate in the defense. The Trustee may
have separate counsel and the Company will pay the reasonable fees and expenses
of such counsel. Neither the Company nor any Guarantor need pay for any
settlement made without its consent, which consent will not be unreasonably
withheld.
(c) The obligations of the Company under this Section 7.07 will survive
the satisfaction and discharge of this Indenture.
(d) To secure the Company's payment obligations in this Section 7.07, the
Trustee will have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien will survive the satisfaction and
discharge of this Indenture.
75
(e) When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(8) or (9) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
(f) The Trustee will comply with the provisions of TIA Section 313(b)(2)
to the extent applicable.
Section 7.08 Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a successor
Trustee will become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
(b) The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Holders of a majority
in aggregate principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged bankrupt or insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a custodian or public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company will promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in aggregate principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
(d) If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of at least 10% in aggregate principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(e) If the Trustee, after written request by any Holder who has been a
Holder for at least six months, fails to comply with Section 7.10 hereof, such
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
(f) A successor Trustee will deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee will become effective, and the
successor Trustee will have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee will mail a notice of its succession
to Holders. The retiring Trustee will promptly transfer all property held by it
as Trustee to the successor Trustee; provided all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in Section 7.07
hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 hereof will continue for the
benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Merger, etc.
76
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act will be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
There will at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $100.0
million as set forth in its most recent published annual report of condition.
This Indenture will always have a Trustee who satisfies the requirements
of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to TIA Section
310(b).
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may at any time, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company and each of the Guarantors will,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be deemed to have been discharged from their obligations with respect to all
outstanding Notes (including the Note Guarantees) on the date the conditions set
forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose,
Legal Defeasance means that the Company and the Guarantors will be deemed to
have paid and discharged the entire Indebtedness represented by the outstanding
Notes (including the Note Guarantees), which will thereafter be deemed to be
"outstanding" only for the purposes of Section 8.05 hereof and the other
Sections of this Indenture referred to in clauses (1) and (2) below, and to have
satisfied all their other obligations under such Notes, the Note Guarantees and
this Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following provisions which will survive until otherwise terminated or discharged
hereunder:
(1) the rights of Holders of outstanding Notes to receive payments
in respect of the principal of, or interest or premium and Liquidated
Damages, if any, on, such Notes when such payments are due from the trust
referred to in Section 8.04 hereof;
(2) the Company's obligations with respect to such Notes under
Article 2 and Section 4.02 hereof;
77
(3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Company's and the Guarantors' obligations in connection
therewith; and
(4) this Article 8.
Subject to compliance with this Article 8, the Company may exercise its
option under this Section 8.02 notwithstanding the prior exercise of its option
under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company and each of the Guarantors will,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be released from each of their obligations under the covenants contained in
Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18,
4.19 and 4.20 hereof and clause (3) of Section 5.01 hereof with respect to the
outstanding Notes on and after the date the conditions set forth in Section 8.04
hereof are satisfied (hereinafter, "Covenant Defeasance"), and the Notes will
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but will continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Notes will not be deemed outstanding for accounting purposes). For this purpose,
Covenant Defeasance means that, with respect to the outstanding Notes and Note
Guarantees, the Company and the Guarantors may omit to comply with and will have
no liability in respect of any term, condition or limitation set forth in any
such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such
omission to comply will not constitute a Default or an Event of Default under
Section 6.01 hereof, but, except as specified above, the remainder of this
Indenture and such Notes and Note Guarantees will be unaffected thereby. In
addition, upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, Sections 6.01(3) through 6.01(6) hereof will
not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance under
either Section 8.02 or 8.03 hereof:
(1) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, cash in U.S. dollars, non-callable
Government Securities, or a combination thereof, in such amounts as will
be sufficient, in the opinion of a nationally recognized investment bank,
appraisal firm, or firm of independent public accountants, to pay the
principal of, premium and Liquidated Damages, if any, and interest on, the
outstanding Notes on the stated date for payment thereof or on the
applicable redemption date, as the case may be, and the Company must
specify whether the Notes are being defeased to such stated date for
payment or to a particular redemption date;
(2) in the case of an election under Section 8.02 hereof, the
Company must deliver to the Trustee:
(A) an Opinion of U.S. Counsel reasonably acceptable to the
Trustee confirming that:
78
(i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling; or
(ii) since the Issue Date, there has been a change in
the applicable federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel will
confirm that, the Holders of the outstanding Notes will not
recognize income, gain or loss for federal income tax purposes
as a result of such Legal Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Legal
Defeasance had not occurred; and
(B) an opinion of Singapore counsel and of any other
jurisdiction in which the Company is organized, resident or engaged
in business for tax purposes that:
(i) Holders of the outstanding Notes will not recognize
income, gain or loss for purposes of the tax laws of the
jurisdiction as a result of such Legal Defeasance and will be
subject for purposes of the tax laws of that jurisdiction to
income tax on the same amounts, in the same manner and at the
same times as would have been the case if Legal Defeasance had
not occurred and
(ii) payments from the defeasance trust will be free or
exempt from any and all withholding and other taxes of
whatever nature of the jurisdiction or any political
subdivision or taxing authority except in the case of a
payment made to a Holder which can be taxed by reason of the
Holder's carrying on a business in Singapore or other
jurisdiction;
(3) in the case of an election under Section 8.03 hereof, the
Company must deliver to the Trustee:
(A) an Opinion of U.S. Counsel reasonably acceptable to the
Trustee confirming that the Holders of the outstanding Notes will
not recognize income, gain or loss for federal income tax purposes
as a result of such Covenant Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Covenant
Defeasance had not occurred; and
(B) an opinion of Singapore counsel and of any other
jurisdiction in which the Company is organized, resident or engaged
in business for tax purposes that:
(i) Holders of the outstanding Notes will not recognize
income, gain or loss for purposes of the tax laws of the
jurisdiction as a result of such Covenant Defeasance and will
be subject for purposes of the tax laws of that jurisdiction
to income tax on the same amounts, in the same manner and at
the same times as would have been the case if Covenant
Defeasance had not occurred; and
(ii) payments from the defeasance trust will be free or
exempt from any and all withholding and other taxes of
whatever nature of the jurisdiction or any political
subdivision or taxing authority except in the case of a
payment made to a Holder which can be taxed by reason of the
Holder's carrying on a business in Singapore or other
jurisdiction;
79
(4) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such
deposit) and the deposit will not result in a breach or violation of, or
constitute a default under, any other instrument to which the Company or
any Guarantor is a party or by which the Company or any Guarantor is
bound;
(5) such Legal Defeasance or Covenant Defeasance will not result in
a breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company
or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound;
(6) the Company must deliver to the Trustee an Officers' Certificate
stating that the deposit was not made by the Company with the intent of
preferring the Holders of Notes over the other creditors of the Company
with the intent of defeating, hindering, delaying or defrauding any
creditors of the Company or others; and
(7) the Company must deliver to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
relating to the Legal Defeasance or the Covenant Defeasance have been
complied with.
Section 8.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
will be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium and Liquidated Damages, if
any, and interest, but such money need not be segregated from other funds except
to the extent required by law.
The Company will pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Notwithstanding anything in this Article 8 to the contrary, the Trustee
will deliver or pay to the Company from time to time upon the request of the
Company any money or non-callable Government Securities held by it as provided
in Section 8.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.04(1) hereof), are in excess of the amount thereof that would then be required
to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of, premium or Liquidated
Damages, if any, or interest on, any Note and remaining unclaimed for two years
after such principal, premium or Liquidated Damages, if any, or interest has
become due and payable shall be paid to the Company on its request or (if then
held by the
80
Company) will be discharged from such trust; and the Holder of such Note will
thereafter be permitted to look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, will thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which will not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. dollars or
non-callable Government Securities in accordance with Section 8.02 or 8.03
hereof, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's and the Guarantors' obligations under this
Indenture and the Notes and the Note Guarantees will be revived and reinstated
as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be; provided,
however, that, if the Company makes any payment of principal of, premium or
Liquidated Damages, if any, or interest on, any Note following the reinstatement
of its obligations, the Company will be subrogated to the rights of the Holders
of such Notes to receive such payment from the money held by the Trustee or
Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture, the
Subsidiary Guarantee Agreement, the Notes or the Note Guarantees without the
consent of any Holders of Notes:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
(3) to provide for the assumption of the Company's or a Guarantor's
obligations to the Holders of the Notes and Note Guarantees by a successor
to the Company or such Guarantor pursuant to Article 5 hereof or Article 2
of the Subsidiary Guarantee Agreement;
(4) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the
legal rights hereunder of any such Holder;
(5) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(6) to conform the text of this Indenture, the Note Guarantee, the
Notes or the Subsidiary Guarantee Agreement to any provision of the
"Description of Notes" section of the Company's Offering Memorandum dated
November 5, 2004, relating to the initial offering of the Notes, to the
extent that such provision in that "Description of Notes" section was
intended to be a
81
verbatim recitation of a provision of this Indenture, the Note Guarantees,
the Notes or the Subsidiary Guarantee Agreement;
(7) to provide for the issuance of Additional Notes in accordance
with the limitations set forth in this Indenture as of the date hereof;
(8) to allow any Guarantor to execute a supplemental indenture
and/or a Note Guarantee with respect to the Notes; or
(9) to make any other modifications to this Indenture, the
Subsidiary Guarantee Agreement, the Notes or the Note Guarantees of a
formal, minor pr technical nature or necessary to correct a manifest error
or upon Opinion of Counsel to comply with mandatory provisions of the law
of Singapore or other foreign law requirements so long as such
modification does not adversely effect the rights of any Holder of the
Notes in any material respect.
Upon the request of the Company accompanied by a resolution of its Board
of Directors authorizing the execution of any such amended or supplemental
indenture, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee will join with the Company and the Guarantors in the
execution of any amended or supplemental indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee will not be
obligated to enter into such amended or supplemental indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
Section 9.02 With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Company and the Trustee
may amend or supplement this Indenture (including, without limitation, clause
(e) of Section 3.07 and Sections 3.09, 4.10 and 4.15 hereof), the Subsidiary
Guarantee Agreement and the Notes and the Note Guarantees with the consent of
the Holders of at least a majority in aggregate principal amount of the then
outstanding Notes (including, without limitation, Additional Notes, if any)
voting as a single class (including, without limitation, consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the
Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or
Event of Default (other than a Default or Event of Default in the payment of the
principal of, premium or Liquidated Damages, if any, or interest on, the Notes,
except a payment default resulting from an acceleration that has been rescinded)
or compliance with any provision of this Indenture, the Subsidiary Guarantee
Agreement or the Notes or the Note Guarantees may be waived with the consent of
the Holders of a majority in aggregate principal amount of the then outstanding
Notes (including, without limitation, Additional Notes, if any) voting as a
single class (including, without limitation, consents obtained in connection
with a tender offer or exchange offer for, or purchase of, the Notes). Section
2.08 hereof shall determine which Notes are considered to be "outstanding" for
purposes of this Section 9.02.
Upon the request of the Company accompanied by a resolution of its Board
of Directors authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 7.02 hereof, the Trustee will
join with the Company and the Guarantors in the execution of such amended or
supplemental indenture unless such amended or supplemental indenture directly
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but will not be
obligated to, enter into such amended or supplemental Indenture.
82
It is not be necessary for the consent of the Holders of Notes under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it is sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company will mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, will not, however, in
any way impair or affect the validity of any such amended or supplemental
indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding voting as a
single class may waive compliance in a particular instance by the Company with
any provision of this Indenture, the Subsidiary Guarantee Agreement or the Notes
or the Note Guarantees. However, without the consent of each Holder affected, an
amendment, supplement or waiver under this Section 9.02 may not (with respect to
any Notes held by a non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders must consent
to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any Note
or alter or waive any of the provisions with respect to the redemption of
the Notes (except as provided above with respect to clause (e) of Section
3.07 and Sections 3.09, 4.10 and 4.15 hereof);
(3) reduce the rate of or change the time for payment of interest,
including default interest, on any Note;
(4) waive a Default or Event of Default in the payment of principal
of, or premium or Liquidated Damages, if any, or interest on, the Notes
(except a rescission of acceleration of the Notes by the Holders of at
least a majority in aggregate principal amount of the then outstanding
Notes and a waiver of the payment default that resulted from such
acceleration);
(5) make any Note payable in money other than that stated in the
Notes;
(6) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive
payments of principal of, or interest or premium or Liquidated Damages, if
any, on, the Notes;
(7) waive a redemption payment with respect to any Note (other than
a payment required by clause (e) of Section 3.07 and Sections 3.09, 4.10
or 4.15 hereof);
(8) release any Guarantor from any of its obligations under its Note
Guarantee, this Indenture or the Subsidiary Guarantee Agreement, except in
accordance with the terms of this Indenture and the Subsidiary Guarantee
Agreement; or
(9) make any change in the preceding amendment and waiver
provisions.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes will be set
forth in a amended or supplemental indenture that complies with the TIA as then
in effect.
Section 9.04 Revocation and Effect of Consents.
83
Until an amendment, supplement or waiver becomes effective, a consent to
it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.05 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note will not
affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee will sign any amended or supplemental indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amended or supplemental indenture until the Board of Directors
of the Company approves it. In executing any amended or supplemental indenture,
the Trustee will be entitled to receive and (subject to Section 7.01 hereof)
will be fully protected in relying upon, in addition to the documents required
by Section 11.04 hereof, an Officers' Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.
ARTICLE 10
SATISFACTION AND DISCHARGE
Section 10.01 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further effect
as to all Notes issued hereunder, when:
(1) either:
(a) all Notes that have been authenticated, except lost,
stolen or destroyed Notes that have been replaced or paid and Notes for
whose payment money has theretofore been deposited in trust and thereafter
repaid to the Company, have been delivered to the Trustee for
cancellation; or
(b) all Notes that have not been delivered to the Trustee for
cancellation have become due and payable by reason of the mailing of a
notice of redemption or otherwise or will become due and payable within
one year and the Company or any Guarantor has irrevocably deposited or
caused to be deposited with the Trustee as trust funds in trust solely for
the benefit of the Holders, cash in U.S. dollars, non-callable Government
Securities, or a combination thereof, in such amounts as will be
sufficient, without consideration of any reinvestment of interest, to pay
and discharge the entire Indebtedness on the Notes not delivered to the
Trustee for cancellation
84
for principal, premium and Liquidated Damages, if any, and accrued
interest to the date of maturity or redemption;
(2) no Default or Event of Default has occurred and is continuing on
the date of such deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit) and
the deposit will not result in a breach or violation of, or constitute a
default under, any other instrument to which the Company or any Guarantor
is a party or by which the Company or any Guarantor is bound;
(3) the Company or any Guarantor has paid or caused to be paid all
sums payable by it under this Indenture; and
(4) the Company has delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money toward the
payment of the Notes at maturity or on the redemption date, as the case
may be.
In addition, the Company must deliver an Officers' Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction and
discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, if money
has been deposited with the Trustee pursuant to subclause (b) of clause (1) of
this Section 10.01, the provisions of Sections 10.02 and 8.06 hereof will
survive. In addition, nothing in this Section 10.01 will be deemed to discharge
those provisions of Section 7.07 hereof, that, by their terms, survive the
satisfaction and discharge of this Indenture.
Section 10.02 Application of Trust Money.
Subject to the provisions of Section 8.06 hereof, all money deposited with
the Trustee pursuant to Section 10.01 hereof shall be held in trust and applied
by it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium and Liquidated Damages, if any)
and interest for whose payment such money has been deposited with the Trustee;
but such money need not be segregated from other funds except to the extent
required by law.
If the Trustee or Paying Agent is unable to apply any money or Government
Securities in accordance with Section 10.01 hereof by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's and any Guarantor's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 10.01 hereof; provided that if the Company has made any payment of
principal of, premium or Liquidated Damages, if any, or interest on, any Notes
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Notes to receive such payment from the
money or Government Securities held by the Trustee or Paying Agent.
ARTICLE 11
MISCELLANEOUS
Section 11.01 Trust Indenture Act Controls.
85
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA Section 318(c), the imposed duties will control.
Section 11.02 Notices.
Any notice or communication by the Company, any Guarantor or the Trustee
to the others is duly given if in writing and delivered in Person or by first
class mail (registered or certified, return receipt requested), facsimile
transmission or overnight air courier guaranteeing next day delivery, to the
others' address:
If to the Company and/or any Guarantor:
STATS ChipPAC Ltd.
10 Ang Mo Kio Street 65
#05-17/20 Techpoint
Singapore 569059
Facsimile No.: (65) 6720-7829
Attention: Michael G. Potter
With a copy to:
Kirkland & Ellis LLP
777 South Figueroa Street
Los Angeles, CA 90017-5800
Facsimile No.: (213) 680-8500
Attention: Eva Davis, Esq.
If to the Trustee:
U.S. Bank National Association
60 Livingston Avenue EP-MN-WS3C
St. Paul, MN 55107-2292
Facsimile No.: (651) 495-8097
Attention: Corporate Trust Department
The Company, any Guarantor or the Trustee, by notice to the others, may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders) will be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile; and
the next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
Any notice or communication to a Holder will be mailed by first class
mail, to its address shown on the register kept by the Registrar. Any notice or
communication will also be so mailed to any Person described in TIA Section
313(c), to the extent required by the TIA. Failure to mail a notice or
communication to a Holder or any defect in it will not affect its sufficiency
with respect to other Holders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
86
If the Company mails a notice or communication to Holders, it will mail a
copy to the Trustee and each Agent at the same time.
Section 11.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA Section 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA Section
312(c).
Section 11.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which must include the statements set forth
in Section 11.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which must include the statements set forth
in Section 11.05 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been satisfied.
Section 11.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) must comply with the provisions of TIA
Section 314(e) and must include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him or
her to express an informed opinion as to whether or not such covenant or
condition has been satisfied; and
(4) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
Section 11.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 11.07 No Personal Liability of Directors, Officers, Employees and
Stockholders.
No past, present or future director, officer, employee, incorporator or
stockholder of the Company or any Guarantor, as such, will have any liability
for any obligations of the Company or the Guarantors
87
under the Notes, this Indenture, the Note Guarantees, the Subsidiary Guarantee
Agreement or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. The waiver may not be effective to
waive liabilities under the federal securities laws.
Section 11.08 Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 11.09 JURISDICTION.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, the company IRREVOCABLY
AGREES THAT ANY LEGAL SUIT, ACTION OR PROCEEDING BROUGHT BY ANY HOLDER OR BY ANY
PERSON WHO CONTROLS SUCH HOLDER or the trustee on behalf of such holder ARISING
OUT OF OR RELATING TO THIS indenture OR THE TRANSACTIONS CONTEMPLATED HEREBY MAY
BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE BOROUGH OF MANHATTAN, THE
CITY OF NEW YORK, NEW YORK, AND IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM, AND IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING.
Section 11.10 Waiver of Immunity.
To the extent that the Company has or hereafter may acquire any immunity
(sovereign or otherwise) from any legal action, suit or proceeding, from
jurisdiction of any court or from set-off or any legal process (whether service
or notice, attachment in aid or otherwise) with respect to itself or any of its
property, the Company hereby irrevocably waives and agrees not to plead or claim
such immunity in respect of its obligations under this Agreement or the Notes.
Section 11.11 Process Agent.
The Company has appointed CT Corporation System (the "Process Agent"), as
its agent to receive on its behalf service of copies of the summons and
complaints and any other process which may be served in any suit, action or
proceeding arising out of or relating to this Indenture, the Notes or the
transactions contemplated hereby brought in such New York State or federal court
sitting in The City of New York. The Company further agrees to take any and all
action as may be necessary to maintain such designation and appointment of such
agent in full force and effect for a period of five years from the date of this
Indenture. Such service may be made by delivering a copy of such process to the
Company in care of the Process Agent at the address for the Process Agent and
obtaining a receipt therefor, and the Company hereby irrevocably authorizes and
directs such Process Agent to accept such service on its behalf. The Company
represents and warrants that the Process Agent has agreed to act as said agent
for service of process, and agrees that service of process in such manner upon
the Process Agent shall be deemed, to the fullest extent permitted by applicable
law, in every respect effective service of process upon the Company in any such
suit, action or proceeding.
88
Section 11.12 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 11.13 Successors.
All agreements of the Company in this Indenture and the Notes will bind
its successors. All agreements of the Trustee in this Indenture will bind its
successors. All agreements of each Guarantor in this Indenture or the Subsidiary
Guarantee Agreement will bind its successors, except as otherwise provided in
Section 2.05 of the Subsidiary Guarantee Agreement.
Section 11.14 Severability.
In case any provision in this Indenture or in the Notes is invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions will not in any way be affected or impaired thereby.
Section 11.15 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed
copy will be an original, but all of them together represent the same agreement.
Section 11.16 Currency Indemnity.
The U.S. dollar is the sole currency of account and payment for all sums
payable by the Company in connection with the Notes. Any amount received or
recovered in a currency other than the U.S. dollar in respect of the Notes
(whether as a result of, or for the enforcement of, a judgment or order of a
court of any jurisdiction, in the winding-up or dissolution of the Company or
otherwise) by the Trustee or any Holder in respect of any sum expressed to be
due to it from the Company will constitute a discharge of the Company only to
the extent of the U.S. dollar amount which the recipient is able to purchase
with the amount so received or recovered in that other currency on the date of
that receipt or recovery (or, if it is not possible to make that purchase on
that date, on the first date on which it is possible to do so). If that U.S.
dollar amount is less than the U.S. dollar amount expressed to be due to the
recipient under any Note, the Company will indemnify the recipient against any
loss sustained by it as a result. In any event the Company will indemnify the
recipient against the cost of making any such purchase.
For the purposes of this Section 11.16, it will be sufficient for a Holder
or the Trustee to certify that it would have suffered a loss had an actual
purchase of U.S. dollars been made with the amount so received in that other
currency on the date of receipt or recovery (or, if a purchase of U.S. dollars
on such date had not been practicable, on the first date on which it would have
been practicable). These indemnities constitute a separate and independent
obligation from the other obligations of the Company, will give rise to a
separate and independent cause of action, will apply irrespective of any waiver
granted by any Holder or the Trustee and will continue in full force and effect
despite any other judgment, order, claim or proof for a liquidated amount in
respect of any sum due under any Note or any other judgment or order.
Section 11.17 Currency Calculation.
89
Except as otherwise expressly set forth herein, for purposes of
determining compliance with any U.S. dollar-denominated restriction herein, the
U.S. dollar-equivalent amount for purposes hereof that is denominated in a
non-U.S. dollar currency shall be calculated based on the relevant currency
exchange rate in effect on the date such non-U.S. dollar amount is incurred or
made, as the case may be.
Section 11.18 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part of this Indenture and will in no way
modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
90
SIGNATURES
Dated as of November 18, 2004
STATS CHIPPAC LTD.
By: /s/ Tan Lay Koon
------------------------------
Name: Tan Lay Koon
Title: President and Chief
Executive Officer
U.S. BANK NATIONALASSOCIATION
By: /s/ Lori Anne Rosenberg
------------------------------
Name: Lori Anne Rosenberg
Title: Assistant Vice President
Signature Page to indenture
[Face of Note]
CUSIP/CINS [85771T AA 2 / US85771TAA25][144A]
[Y8162B AA 3 / USY8162BAA36][Reg S]
6/3/4%% Senior Notes due 2011
No. ___ $____________
STATS CHIPPAC LTD.
promises to pay to Cede & Co. or registered assigns,
the principal sum of ________________________________________________ DOLLARS on
November 15, 2011.
Interest Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
Dated: November 18, 2004
STATS CHIPPAC LTD.
By:
______________________
Name:
Title:
This is one of the Notes referred to in the within-mentioned Indenture:
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
_________________________
Authorized Signatory
A-1
[Back of Note]
6 3/4% Senior Notes due 2011
[Insert the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions
of the Indenture]
Capitalized terms used herein have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
(1) INTEREST. STATS ChipPAC Ltd., a corporation organized under the
laws of the republic of Singapore (the "Company"), promises to pay
interest on the principal amount of this Note at 6 -3/4% per annum from
November 18, 2004 until maturity and shall pay the Liquidated Damages, if
any, payable pursuant to Section 5 of the Registration Rights Agreement
referred to below. The Company will pay interest and Liquidated Damages,
if any, semi-annually in arrears on May 15 and November 15 of each year,
or if any such day is not a Business Day, on the next succeeding Business
Day (each, an "Interest Payment Date"). Interest on the Notes will accrue
from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance; provided that if there
is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the
next succeeding Interest Payment Date, interest shall accrue from such
next succeeding Interest Payment Date; provided further that the first
Interest Payment Date shall be May 15, 2005. The Company will pay interest
(including post-petition interest in any proceeding under any Bankruptcy
Law) on overdue principal and premium, if any, from time to time on demand
at a rate that is 1% per annum in excess of the rate then in effect to the
extent lawful; it will pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of
interest and Liquidated Damages, if any, (without regard to any applicable
grace periods) from time to time on demand at the same rate to the extent
lawful. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
(2) METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) and Liquidated Damages, if any, to the Persons
who are registered Holders of Notes at the close of business on the May 1
or November 1 next preceding the Interest Payment Date, even if such Notes
are canceled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.12 of the Indenture with respect to
defaulted interest. The Notes will be payable as to principal, premium and
Liquidated Damages, if any, and interest at the office or agency of the
Company maintained for such purpose within or without the City and State
of New York, or, at the option of the Company, payment of interest and
Liquidated Damages, if any, may be made by check mailed to the Holders at
their addresses set forth in the register of Holders; provided that
payment by wire transfer of immediately available funds will be required
with respect to principal of and interest, premium and Liquidated Damages,
if any, on, all Global Notes and all other Notes the Holders of which will
have provided wire transfer instructions to the Company or the Paying
Agent. Such payment will be in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public
and private debts.
(3) PAYING AGENT AND REGISTRAR. Initially, U.S. Bank National
Association, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without
notice to any Holder. The Company or any of its Subsidiaries may act in
any such capacity.
A-2
(4) INDENTURE. The Company issued the Notes under an Indenture dated
as of November 18, 2004 (the "Indenture") between the Company and the
Trustee. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the TIA. The Notes are
subject to all such terms, and Holders are referred to the Indenture and
such Act for a statement of such terms. To the extent any provision of
this Note conflicts with the express provisions of the Indenture, the
provisions of the Indenture shall govern and be controlling. The Notes are
unsecured obligations of the Company. The Notes are guaranteed by the
Guarantors pursuant to the terms of the Subsidiary Guarantee Agreement.
The Indenture does not limit the aggregate principal amount of Notes that
may be issued thereunder.
(5) OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) of this Paragraph 5, the
Company will not have the option to redeem the Notes prior to November 15, 2008.
On or after November 15, 2008, the Company may redeem all or a part of the Notes
upon not less than 30 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and
unpaid interest and Liquidated Damages, if any, on the Notes redeemed, to the
applicable redemption date, if redeemed during the twelve-month period beginning
on November 15 of the years indicated below, subject to the rights of Holders on
the relevant record date to receive interest on the relevant interest payment
date:
Year Percentage
---- ----------
2008..................................... 103.375%
2009..................................... 101.688%
2010 and thereafter...................... 100.000%
Unless the Company defaults in the payment of the redemption price,
interest will cease to accrue on the Notes or portions thereof called for
redemption on the applicable redemption date.
(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph
5, at any time prior to November 15, 2007, the Company may, on any one or more
occasions, redeem up to 35% of the aggregate principal amount of Notes issued
under this Indenture (including the issuance of any Additional Notes hereunder)
at a redemption price of 106.750% of the principal amount thereof, plus accrued
and unpaid interest and Liquidated Damages, if any, to the redemption date, with
the net cash proceeds of one or more sales of common Equity Interests (other
than Disqualified Stock) of the Company; provided that at least 65% of the
aggregate principal amount of Notes originally issued under this Indenture
(excluding Notes held by the Company and its Subsidiaries) remains outstanding
immediately after the occurrence of such redemption and the redemption occurs
within 90 days of the date of the closing of such sale of Equity Interests.
(c) At any time prior to November 15, 2008, the Company may also redeem
all or a part of the Notes, upon not less than 30 nor more than 60 days' prior
notice mailed by first-class mail to each Holder's registered address, at a
redemption price equal to 100% of the principal amount of Notes redeemed plus
the Applicable Premium as of, and accrued and unpaid interest and Liquidated
Damages, if any, to the applicable date of redemption, subject to the rights of
Holders on the relevant record date to receive interest due on the relevant
interest payment date.
(d) If, as a result of (i) any amendment after the date of the Indenture
to, or change after the date of the Indenture in, the laws or regulations of any
Relevant Jurisdiction, or (ii) any change after the date of the Indenture in the
general application or general or official interpretation of the laws or
regulations of any Relevant Jurisdiction applicable to the Company, the Company
would be obligated to pay, on the
A-3
next date for any payment and as a result of that change, Additional Amounts as
described in Section 4.19 of the Indenture with respect to the Relevant
Jurisdiction, which the Company cannot avoid by the use of reasonable measures
available to it, then the Company may redeem all, but not less than all, of the
Notes, at any time thereafter, upon not less than 30 nor more than 60 days'
notice, at a redemption price equal to 100% of the principal amount of Notes
redeemed, plus accrued interest and Liquidated Damages, if any, to the
redemption date.
(6) MANDATORY REDEMPTION.
The Company is not be required to make mandatory redemption or sinking
fund payments with respect to the Notes.
(7) REPURCHASE AT THE OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, the Company will make an
offer (a "Change of Control Offer") to each Holder to repurchase all or any part
(equal to $1,000 or an integral multiple of $1,000) of that Holder's Notes at a
purchase price in cash equal to 101% of the aggregate principal amount of Notes
repurchased plus accrued and unpaid interest and Liquidated Damages, if any, on
the Notes repurchased to the date of purchase, subject to the rights of Holders
on the relevant record date to receive interest due on the relevant interest
payment date (the "Change of Control Payment"). Within 30 days following any
Change of Control, the Company will mail a notice to each Holder setting forth
the procedures governing the Change of Control Offer as required by the
Indenture.
(b) If the Company or a Restricted Subsidiary of the Company consummates
any Asset Sales, on the 365(th) day after an Asset Sale, if the aggregate amount
of Excess Proceeds exceeds $10.0 million, the Company will commence an offer to
all Holders of Notes and all holders of other Indebtedness that is pari passu
with the Notes containing provisions similar to those set forth in this
Indenture with respect to offers to purchase or redeem with the proceeds of
sales of assets (an "Asset Sale Offer") pursuant to Section 3.09 of the
Indenture to purchase the maximum principal amount of Notes and such other pari
passu Indebtedness that may be purchased out of the Excess Proceeds. The offer
price in any Asset Sale Offer will be equal to 100% of the principal amount plus
accrued and unpaid interest and Liquidated Damages, if any, to the date of
purchase, and will be payable in cash. If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company may use those Excess Proceeds
for any purpose not otherwise prohibited by this Indenture. If the aggregate
principal amount of Notes and other pari passu Indebtedness tendered into such
Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select
the Notes and such other pari passu Indebtedness to be purchased on a pro rata
basis. Holders of Notes that are the subject of an offer to purchase will
receive an Asset Sale Offer from the Company prior to any related purchase date
and may elect to have such Notes purchased by completing the form entitled
"Option of Holder to Elect Purchase" attached to the Notes.
(c) Upon the occurrence of a Korea Guarantee Offer Event, the Company will
make an offer (a "Korea Guarantee Offer") to each Holder to repurchase all or
any part (equal to $1,000 or an integral multiple of $1,000) of that Holder's
Notes at a purchase price in cash equal to 101% of the aggregate principal
amount of Notes repurchased plus accrued and unpaid interest on the Notes
repurchased to the date of purchase, subject to the rights of Holders on the
relevant record date to receive interest due on the relevant interest payment
date (the "Korea Guarantee Payment"). Within 30 days following a Korea Guarantee
Offer Event, the Company will mail a notice to each Holder setting forth the
procedures governing the Korea Guarantee Offer as required by the Indenture.
(8) NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at
A-4
its registered address, except that redemption notices may be mailed more
than 60 days prior to a redemption date if the notice is issued in
connection with a defeasance of the Notes or a satisfaction or discharge
of the Indenture. Notes in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000, unless all of the
Notes held by a Holder are to be redeemed.
(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged
as provided in the Indenture. The Registrar and the Trustee may require a
Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes
and fees required by law or permitted by the Indenture. The Company need
not exchange or register the transfer of any Note or portion of a Note
selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, the Company need not exchange or register
the transfer of any Notes for a period of 15 days before a selection of
Notes to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
(10) PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
(11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture, the Subsidiary Guarantee Agreement, the Notes
or the Note Guarantees may be amended or supplemented with the consent of
the Holders of at least a majority in aggregate principal amount of the
then outstanding Notes including Additional Notes, if any, voting as a
single class, and any existing Default or Event or Default or compliance
with any provision of the Indenture or the Notes or the Note Guarantees
may be waived with the consent of the Holders of a majority in aggregate
principal amount of the then outstanding Notes Including Additional Notes,
if any, voting as a single class. Without the consent of any Holder of a
Note, the Indenture, the Subsidiary Guarantee Agreement, the Notes or the
Note Guarantees may be amended or supplemented to cure any ambiguity,
defect or inconsistency, to provide for uncertificated Notes in addition
to or in place of certificated Notes, to provide for the assumption of the
Company's or a Guarantor's obligations to Holders of the Notes and Note
Guarantees in case of a merger or consolidation, to make any change that
would provide any additional rights or benefits to the Holders of the
Notes or that does not adversely affect the legal rights under the
Indenture of any such Holder, to comply with the requirements of the SEC
in order to effect or maintain the qualification of the Indenture under
the TIA, to conform the text of the Indenture, the Subsidiary Guarantee
Agreement, the Notes or the Note Guarantees to any provision of the
"Description of Notes" section of the Company's Offering Memorandum dated
November 5, 2004 relating to the initial offering of the Notes, to the
extent that such provision in that "Description of Notes" section was
intended to be a verbatim recitation of a provision of the Indenture, the
Subsidiary Guarantee Agreement, the Notes or the Note Guarantees; to
provide for the issuance of Additional Notes in accordance with the
limitations set forth in the Indenture, or to allow any Guarantor to
execute a supplemental indenture to the Indenture, an amendment to the
Subsidiary Guarantee Agreement and/or a Note Guarantee with respect to the
Notes.
(12) DEFAULTS AND REMEDIES. Events of Default include: (i) default
for 30 days in the payment when due of interest on, or Liquidated Damages,
if any, or any Additional Amounts, with respect to, the Notes; (ii)
default in the payment when due (at Stated Maturity, upon required
repurchase, declaration, redemption or otherwise) of the principal of, or
premium, if any, on, the Notes; (iii) failure by the Company or any
Guarantor to comply with the provisions of Section 5.01 of the Indenture
hereof; (iv) failure by the Company or any of its Restricted Subsidiaries
for
A-5
30 days after notice to the Company by the Trustee or the Holders of at
least 25% in aggregate principal amount of the Notes then outstanding
voting as a single class to comply with any of its obligations under
Section 4.15 of the Indenture other than a failure to purchase the Notes
as required thereunder, Section 4.10 of the Indenture other than a failure
to purchase the Notes as required thereunder, and Sections 4.03, 4.07,
4.08, 4.09, 4.11 and 4.20 of the Indenture; (v) failure by the Company or
any of its Restricted Subsidiaries for 60 days after notice to the Company
by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding voting as a single class to comply
with any of the other agreements in the Indenture or the Subsidiary
Guarantee Agreement; (vi) default under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company or
any of its Restricted Subsidiaries (or the payment of which is guaranteed
by the Company or any of its Restricted Subsidiaries), whether such
Indebtedness or Guarantee now exists, or is created after the date of the
Indenture, if that default (A) is caused by a failure to pay principal of
such Indebtedness prior to the expiration of the applicable grace period
provided in such Indebtedness on the date of such default (a "Payment
Default") or (B) results in the acceleration of such Indebtedness prior to
its express maturity, and, in each case, the total unpaid principal amount
of any such Indebtedness, together with the total unpaid principal amount
of any other such Indebtedness under which there has been a Payment
Default or the maturity of which has been so accelerated, aggregates $15.0
million or more; (vii) any judgment or decree for the payment of money in
excess of $15.0 million is entered against the Company or a Significant
Subsidiary, remains outstanding for a period of 60 days following the
judgment and is not discharged, waived or stayed within 10 days after
notice thereof to the Company by the Trustee or the Holders of at least
25% in aggregate principal amount of the Notes then outstanding voting as
a single class; (viii) the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary or any group of Restricted Subsidiaries
of the Company that, taken together, would constitute a Significant
Subsidiary pursuant to or within the meaning of Bankruptcy Law (A)
commences a voluntary case, (B) consents to the entry of an order for
relief against it in an involuntary case, (C) consents to the appointment
of a custodian of it or for all or substantially all of its property, (D)
makes a general assignment for the benefit of its creditors, or (E)
generally is not paying its debts as they become due; (ix) a court of
competent jurisdiction enters an order or decree under any Bankruptcy Law
that (A) is for relief against the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a
Significant Subsidiary in an involuntary case, (B) appoints a custodian of
the Company or any of its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries of the Company that,
taken together, would constitute a Significant Subsidiary or for all or
substantially all of the property of the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a
Significant Subsidiary or (C) orders the liquidation of the Company or any
of its Restricted Subsidiaries that is a Significant Subsidiary or any
group of Restricted Subsidiaries of the Company that, taken together,
would constitute a Significant Subsidiary and (D) the order or decree
remains unstayed and in effect for 60 consecutive days; or (x) except as
permitted by the Indenture, any Note Guarantee of a Significant Subsidiary
is held in any judicial proceeding to be unenforceable or invalid or
ceases for any reason to be in full force and effect, other than in
compliance with the terms of the Note Guarantee, or any Guarantor, or any
Person acting on behalf of any Guarantor, denies or disaffirms its
obligations under its Note Guarantee.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of the then
outstanding Notes may declare all the Notes to be due and payable
immediately, except as provided in the Indenture. Notwithstanding the
foregoing, in the case of an Event of Default arising from certain events
of bankruptcy or insolvency, all
A-6
outstanding Notes will become due and payable immediately without further
action or notice. Holders may not enforce the Indenture or the Notes
except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of the Notes notice of any
continuing Default or Event of Default (except a Default or Event of
Default relating to the payment of principal or interest or premium or
Liquidated Damages, if any,) if it determines that withholding notice is
in their interest. The Holders of a majority in aggregate principal amount
of the then outstanding Notes by notice to the Trustee may, on behalf of
the Holders of all of the Notes, rescind an acceleration or waive any
existing Default or Event of Default and its consequences under the
Indenture except a continuing Default or Event of Default in the payment
of interest or premium or Liquidated Damages, if any, on, or the principal
of, the Notes. The Company is required to deliver to the Trustee annually
a statement regarding compliance with the Indenture, and the Company is
required, upon becoming aware of any Default or Event of Default, to
deliver to the Trustee a statement specifying such Default or Event of
Default.
(13) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal
with the Company or its Affiliates, as if it were not the Trustee.
(14) NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder of the Company or any of the Guarantors, as
such, will not have any liability for any obligations of the Company or
the Guarantors under the Notes, the Note Guarantees, the Indenture or the
Subsidiary Guarantee Agreement or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Notes.
(15) AUTHENTICATION. This Note will not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
(16) ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
(17) ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders
of Notes under the Indenture, Holders of Restricted Global Notes and
Restricted Definitive Notes will have all the rights set forth in the
Registration Rights Agreement dated as of November 18, 2004, among the
Company, the Guarantors and the other parties named on the signature pages
thereof or, in the case of Additional Notes, Holders of Restricted Global
Notes and Restricted Definitive Notes will have the rights set forth in
one or more registration rights agreements, if any, among the Company, the
Guarantors and the other parties thereto, relating to rights given by the
Company and the Guarantors to the purchasers of any Additional Notes
(collectively, the "Registration Rights Agreement").
(18) CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes, and the Trustee may use
CUSIP numbers in notices of redemption as a
A-7
convenience to Holders. No representation is made as to the accuracy of
such numbers either as printed on the Notes or as contained in any notice
of redemption, and reliance may be placed only on the other identification
numbers placed thereon.
(19) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL
GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE
GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
STATS ChipPAC Ltd.
10 Ang Mo Kio Street 65
#05-17/20 Techpoint
Singapore 569059
Facsimile No.: (65) 6720-7829
Attention: Michael G. Potter
A-8
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: ________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company.
The agent may substitute another to act for him.
Date: _______________
Your Signature: _________________________
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
A-9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.10 , 4.15 or 4.16 of the Indenture, check the appropriate box
below:
-- Section 4.10 -- Section 4.15 --Section 4.16
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10, Section 4.15 or Section 4.16 of the Indenture,
state the amount you elect to have purchased:
$_______________
Date: _______________
Your Signature: ____________________________
(Sign exactly as your name appears on the
face of this Note)
Tax Identification No.:_____________________
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
A-10
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE *
The following exchanges of a part of this Global Note for an interest in
another Global Note or for a Definitive Note, or exchanges of a part of another
Global Note or Definitive Note for an interest in this Global Note, have been
made:
Principal Amount of
Amount of decrease this Global Note Signature of
in Principal Amount Amount of increase in following such authorized officer
of Principal Amount of decrease of Trustee or
Date of Exchange this Global Note this Global Note (or increase) Custodian
- ---------------- ------------------ --------------------- ------------------- ------------------
* This schedule should be included only if the Note is issued in global form
A-11
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
STATS ChipPAC Ltd.
10 Ang Mo Kio Street 65
#05-17/20 Techpoint
Singapore 569059
U.S. Bank National Association
60 Livingston Avenue
St. Paul, MN 55107-2292
Re: 6 3/4% Senior Notes due 2011 of STATS ChipPAC Ltd.
Reference is hereby made to the Indenture, dated as of November 18, 2004
(the "Indenture"), between STATS ChipPAC Ltd., as issuer (the "Company"), and
U.S. Bank National Association, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
___________________, (the "Transferor") owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to ___________________________ (the "Transferee"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE 144A GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the Securities Act of 1933, as amended (the "Securities Act"), and, accordingly,
the Transferor hereby further certifies that the beneficial interest or
Definitive Note is being transferred to a Person that the Transferor reasonably
believes is purchasing the beneficial interest or Definitive Note for its own
account, or for one or more accounts with respect to which such Person exercises
sole investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A, and such Transfer is in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Note and/or the Restricted Definitive Note and
in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE REGULATION S GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO
REGULATION S. The Transfer is being effected pursuant to and in accordance with
Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor
hereby further certifies that (i) the Transfer is not being made to a Person in
the United States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration
B-1
requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of the Restricted Period, the transfer is not being
made to a U.S. Person or for the account or benefit of a U.S. Person (other than
an Initial Purchaser). Upon consummation of the proposed transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will be subject to the restrictions on Transfer enumerated in
the Private Placement Legend printed on the Regulation S Global Note and/or the
Restricted Definitive Note and in the Indenture and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE IAI GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO ANY
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) [ ] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) [ ] such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144, Rule
903 or Rule 904, and the Transferor hereby further certifies that it has
not engaged in any general solicitation within the meaning of Regulation D
under the Securities Act and the Transfer complies with the transfer
restrictions applicable to beneficial interests in a Restricted Global
Note or Restricted Definitive Notes and the requirements of the exemption
claimed, which certification is supported by (1) a certificate executed by
the Transferee in the form of Exhibit D to the Indenture and (2) an
Opinion of Counsel provided by the Transferor or the Transferee (a copy of
which the Transferor has attached to this certification), to the effect
that such Transfer is in compliance with the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the IAI Global Note and/or the Restricted
Definitive Notes and in the Indenture and the Securities Act.
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a)[ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement
B-2
Legend are not required in order to maintain compliance with the Securities Act.
Upon consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will no longer
be subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Global Notes, on Restricted Definitive Notes
and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is
being effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer
is being effected pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act other than Rule 144, Rule 903 or
Rule 904 and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any State of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will not be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Global Notes or
Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
_________________________________________
[Insert Name of Transferor]
By: _____________________________________
Name:
Title:
Dated: _______________________
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _____, or
(iii) [ ] IAI Global Note (CUSIP _________); or
(b) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _____),or
(iii) [ ] IAI Global Note (CUSIP _________); or
(iv) [ ] Unrestricted Global Note (CUSIP _____);or
(b) [ ] a Restricted Definitive Note; or
(c) [ ] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
STATS ChipPAC Ltd.
10 Ang Mo Kio Street 65
#05-17/20 Techpoint
Singapore 569059
U.S. Bank National Association
60 Livingston Avenue
St. Paul, MN 55107-2292
Re: 6 3/4%% Senior Notes due 2011 of STATS ChipPAC Ltd.
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of November 18, 2004
(the "Indenture"), between STATS ChipPAC Ltd., as issuer (the "Company"), and
U.S. Bank National Association, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
__________________________, (the "Owner") owns and proposes to exchange
the Note[s] or interest in such Note[s] specified herein, in the principal
amount of $____________ in such Note[s] or interests (the "Exchange"). In
connection with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN AN UNRESTRICTED GLOBAL NOTE
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global Note
for a beneficial interest in an Unrestricted Global Note in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Global
Notes and pursuant to and in accordance with the Securities Act of 1933, as
amended (the "Securities Act"), (iii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest in
an Unrestricted Global Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Definitive Note is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.
C-1
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Owner's Exchange
of a Restricted Definitive Note for a beneficial interest in an Unrestricted
Global Note, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL NOTES
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
the Restricted Definitive Note is being acquired for the Owner's own account
without transfer. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Restricted Definitive Note issued will continue
to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Note and in the Indenture
and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL
INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange of the
Owner's Restricted Definitive Note for a beneficial interest in the [CHECK ONE]
[ ]144A Global Note, [ ]Regulation S Global Note, [ ]IAI Global Note with an
equal principal amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the beneficial interest
issued will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global Note and in the
Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
_________________________________________
[Insert Name of Transferor]
By:________________________________________
Name:
Title:
Dated: ______________________
C-2
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
STATS ChipPAC Ltd.
10 Ang Mo Kio Street 65
#05-17/20 Techpoint
Singapore 569059
U.S. Bank National Association
60 Livingston Avenue
St. Paul, MN 55107-2292
Re: 6 3/4%% Senior Notes due 2011 of STATS ChipPAC Ltd.
Reference is hereby made to the Indenture, dated as of November 18, 2004
(the "Indenture"), between STATS ChipPAC Ltd., as issuer (the "Company"), and
U.S. Bank National Association, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any interest
therein is subject to certain restrictions and conditions set forth in the
Indenture and the undersigned agrees to be bound by, and not to resell, pledge
or otherwise transfer the Notes or any interest therein except in compliance
with, such restrictions and conditions and the Securities Act of 1933, as
amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter and an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such transfer is in
compliance with the Securities Act, (D) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
provisions of Rule 144(k) under the Securities Act or (F) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any Person purchasing the Definitive Note or beneficial interest
in a Global Note from us in a transaction meeting the requirements of clauses
(A) through (E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
D-1
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased by
us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
___________________________________________
[Insert Name of Accredited Investor]
By: _______________________________________
Name:
Title:
Dated: _______________________
D-2
EXHIBIT E
[FORM OF NOTATION OF GUARANTEE]
For value received, each Guarantor (which term includes any successor
Person under the Subsidiary Guarantee Agreement) has, jointly and severally,
unconditionally guaranteed, to the extent set forth in the Subsidiary Guarantee
Agreement and subject to the provisions in the Subsidiary Guarantee Agreement
dated as of November 18, 2004 (the "Agreement") among STATS ChipPAC, Ltd. (the
"Company"), the Guarantors party thereto and U.S. Bank National Association, as
trustee (the "Trustee"), (a) the due and punctual payment of the principal of,
premium and Liquidated Damages, if any, and interest on, the Notes, whether at
maturity, by acceleration, redemption or otherwise, the due and punctual payment
of interest on overdue principal of and interest on the Notes, if any, if
lawful, and the due and punctual performance of all other obligations of the
Company to the Holders or the Trustee all in accordance with the terms of the
Indenture and the Agreement (b) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise.
The obligations of the Guarantors to the Holders of Notes and to the Trustee
pursuant to the Note Guarantee, the Indenture and the Agreement are expressly
set forth in Article 2 of the Agreement and reference is hereby made to the
Agreement for the precise terms of the Note Guarantee.
Capitalized terms used but not defined herein have the meanings given to
them in the Indenture.
[NAME OF GUARANTOR(S)]
By: _____________________________________
Name:
Title:
E-1
EXHIBIT F
[FORM OF SUBSIDIARY GUARANTEE AGREEMENT]
F-1