EXHIBIT 5.5
[Bonn Schmitt Steichen Letterhead]
STATS ChipPAC Ltd.
STATS ChipPAC, Inc.
STATS ChipPAC Test Services, Inc.
STATS Holdings Limited
ChipPAC International Company Limited
STATS ChipPAC (Barbados) Ltd.
ChipPAC Luxembourg S.a.R.L.
ChipPAC Liquidity Management Hungary
Limited Liability Company
STATS ChipPAC (BVI) Limited
STATS ChipPAC Malaysia Sdn. Bhd.
c/o STATS ChipPAC Ltd.
10 Ang Mo Kio Street 65
#05-17/20 Techpoint
Singapore 569059
Luxembourg, September 2, 2005
RE.: CHIPPAC LUXEMBOURG S.A R.L.
Dear Sirs,
1. We have acted as legal advisers in the Grand-Duchy of Luxembourg in
connection with the entry by ChipPAC Luxembourg S.a R.L., a societe a
responsabilite limitee incorporated under the laws of Luxembourg, having
its registered office at 5, rue Eugene Ruppert, L-2453 Luxembourg,
registered with the Luxembourg Registry of Commerce and Companies under
number B 69 052 (the "COMPANY"), into the Agreements (as defined below).
For the purpose of this legal opinion, we have examined copies of the
following documents:
-- a copy of an executed notes indenture dated as of July 19, 2005 (the
"INDENTURE") made between STATS ChipPAC Ltd. (the "ISSUER") and U.S.
Bank National Association (the "TRUSTEE");
-- a registration statement on Form F-4 under the Securities Act of 1933,
as amended (the "REGISTRATION STATEMENT") made by the Issuer and the
Subsidiary Guarantors (as defined in the Subsidiary Guarantee
Agreement) relating to the
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proposed issuance by the Issuer of up to an aggregate principal amount
of US$150,000,000 7.5% Senior Notes due 2010 (the "EXCHANGE NOTES");
-- a copy of an executed subsidiary guarantee agreement (the "SUBSIDIARY
GUARANTEE AGREEMENT") dated as of July 19, 2005 among the Subsidiary
Guarantors (as defined in the Subsidiary Guarantee Agreement), the
Issuer and the Trustee, including the notation of guarantee with
respect thereto (the "EXCHANGE NOTE SUBSIDIARY GUARANTEE").
The aforementioned documents are hereinafter collectively referred to as
the "AGREEMENTS".
2. Terms defined in the Agreements shall bear the same meaning herein, unless
expressly provided to the contrary.
3. We have further seen the following documents: resolutions of the Board of
Managers of the Company dated July 4, 2005 approving the execution of the
Registration Statement and the Subsidiary Guarantee Agreement by the
Company (the "RESOLUTIONS"), the share register of the Company and the
corporate documents of the Company that are available to the public at the
Luxembourg Registry of Commerce and Companies at the day of this opinion,
including the Company's latest articles of incorporation available.
4. This opinion is confined to matters of Luxembourg law (as defined below).
Accordingly, we express no opinion with regard to any system of law other
than the laws of the Grand-Duchy of Luxembourg ("LUXEMBOURG") as they stand
as of the date hereof and as such laws were as of the date hereof
interpreted in published case law of the courts of Luxembourg ("LUXEMBOURG
LAW") or, to the extent this opinion concerns documents executed prior to
this date, the date of their execution and the period to date. In
particular:
4.1 we express no opinion (i) on public international law or on the rules
of or promulgated under any treaty or by any treaty organisation
(except rules implemented into Luxembourg law or directly applicable
in Luxembourg) or, except as specifically set out herein, on any
taxation laws of any jurisdiction (including Luxembourg), (ii) that
the future or continued performance of a party's obligations or the
consummation of the transactions contemplated by the Agreements will
not contravene Luxembourg law, its application or interpretation in
each case to the extent that such laws, their application or
interpretation, are altered in the future, and (iii) with regard to
the effect of any systems of law (other than Luxembourg law) even in
cases where, under Luxembourg law, any foreign law should be applied,
and we therefore assume that any applicable law (other than Luxembourg
law) would not affect or qualify the opinions as set out below;
4.2 we have not been responsible for investigating or verifying the
accuracy of the facts (or statements of foreign law) or the
reasonableness of any statements of opinion or intention contained in
any documents (other than this opinion), or for verifying that no
material facts or provisions have been omitted therefrom,
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save in so far as any such matter is the subject matter of a specific
opinion herein;
4.3 Luxembourg legal concepts are expressed in English terms and not in
their original French terms. The concepts concerned may not be
identical to the concepts described by the same English terms as they
exist in the laws of other jurisdictions. This opinion may, therefore,
only be relied on upon the express condition that any issues of the
interpretation or liability arising thereunder will be governed by
Luxembourg law and be brought before a court in Luxembourg;
4.4 we express no opinion on the validity and enforceability of any
document except as set out in our opinions in section 6 below;
4.5 this opinion speaks as of the date hereof. No obligation is assumed to
update this opinion or to inform any person of any changes of law or
other matters coming to our knowledge and occurring after the date
hereof, which may affect this opinion in any respect.
5. For the purpose of rendering this opinion, we have assumed:
5.1 the capacity, power and authority of each of the parties (other than
the Company) to execute and deliver the Agreements;
5.2 the due execution of the Agreements by each of the parties (other than
the Company);
5.3 the due delivery of the Agreements by each of the parties (other than
the Company);
5.4 the conformity to original documents of all copy documents examined by
us;
5.5 the validity of the Agreements and all other documents related to this
transaction under their governing laws (other than the laws of
Luxembourg) and the laws governing the parties thereto (other than the
Company); and
5.6 that, in respect of each of the Agreements and each of the
transactions contemplated by, referred to in, provided for or effected
by the Agreements, (i) the parties to the Agreements entered into the
same in good faith and for the purpose of carrying out their business,
(ii) the parties to the Agreements entered into the same on arms'
length commercial terms, (iii) the parties to the Agreements entered
into the same without any intention to defraud or deprive of any legal
benefit any other parties (such as third parties and in particular
creditors) or to circumvent any applicable mandatory laws or
regulations of any jurisdiction, and (iv) the entry into the
Agreements and the performance of any rights and obligations
thereunder are in the best corporate interest of parties to the
Agreements.
6. Based on the above assumptions, and subject to the qualifications set out
below, we are of the opinion that:
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6.1 the Company is a company (societe a responsabilite limitee) duly
incorporated and validly existing in Luxembourg, with the power to
enter into the Agreements to which it is a party and to exercise its
rights and perform its obligations under these Agreements; The Company
has not been declared bankrupt and, to the best of our knowledge, no
steps have been taken for its winding up;
6.2 all necessary corporate action have been taken, and no other action is
required to be taken, to enable the Company to validly execute the
Agreements to which it is a party and to exercise its rights and
perform its obligations thereunder;
6.3 the Agreements to which the Company is a party have been duly executed
and delivered and the obligations expressed to be assumed by the
Company in the Agreements to which it is a party constitute or will
constitute its legal, valid and binding obligations enforceable in
accordance with their terms;
6.4 the Exchange Note Subsidiary Guarantee to be endorsed on the Exchange
Notes has been duly authorised, and when issued, executed and
delivered by the Company in accordance with the terms of the
Agreements, will be the legal, valid and binding obligations of the
Company, enforceable in accordance with its terms;
6.5 no further acts, conditions and things are required by Luxembourg law
to be done, fulfilled and performed in order to make the Agreements
admissible in evidence in Luxembourg, save for what is stated under
section 6.6;
6.6 it is not necessary that the Agreements be filed, recorded or enrolled
with any court or other authority in Luxembourg or that any stamp,
registration or similar tax be paid on or in relation to the
Agreements in accordance therewith, save that a Luxembourg court or a
Luxembourg official authority (autorite constituee) has the power to
order that the Agreements be registered in which case a registration
fee would become payable;
6.7 neither:
(i) the execution by the Company of the Agreements to which it is a
party; nor
(ii) any of the obligations expressed to be assumed by the Company in
any of the Agreements to which it is a party, nor the performance
thereof
violates or conflicts with any provision of any Luxembourg law or
regulation, or with any provision of the Company's constitutional
documents;
6.8 there is no withholding or other tax or duty imposed by any law, rule
or regulation in Luxembourg on any payment to be made by the Company
under any of the Agreements, save that payments made pursuant to the
Agreements may constitute taxable income in the hands of recipients
resident in
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Luxembourg and/or recipients not resident in Luxembourg but having a
permanent establishment or a permanent representative in Luxembourg to
which or to whom the Agreements are attributable;
6.9 the choice of law of the State of New-York, USA as the governing law
of the Subsidiary Guarantee Agreement and the Indenture will be upheld
as a valid choice of law by the courts of Luxembourg. If any of the
Agreements to which the Company is a party are sought to be enforced
in Luxembourg in accordance with the laws of the State of New-York,
USA, the courts of competent jurisdiction in Luxembourg would
recognise the choice of law and apply the laws of the State of
New-York, USA, subject to qualification 7.22;
6.10 the submission to the jurisdiction of the Courts in the Borough of
Manhattan, the City of New York, New York by the Company in the
Subsidiary Guarantee Agreement and the Indenture is legal, valid and
binding and will be upheld by the Luxembourg Courts;
6.11 the Company shall not be entitled to claim for itself or any of its
assets immunity from suit, execution, attachment or other legal
process in Luxembourg.
7. The opinions set forth above are subject to the following qualifications:
7.1 the obligations of the Company under the Agreements to which it is a
party may be limited by the general principles of bankruptcy,
insolvency, liquidation, reorganisation, reconstruction or other laws
affecting the enforcement of creditors' rights generally (hereafter
the "INSOLVENCY LAWS", and the relevant proceedings being referred to
collectively as the "INSOLVENCY PROCEEDINGS"), and, in particular:
-- during a gestion controlee (controlled management) procedure
under the Grand-Ducal Decree dated May 24, 1935 on the procedure
of gestion controlee, the rights of secured creditors are frozen
until a final decision has been taken by the court as to the
petition for controlled management;
-- the obligations of the Company under the Agreements to which it
is a party may be affected and, after their performance, subject
to annulment by a court on the basis of Article 445 of the
Luxembourg Code of Commerce, if these Agreements have been
entered into during the suspect period ("periode suspecte"), such
period being determined by the court in the judgement opening the
Insolvency Proceedings, and preceding the date of such judgement
by a maximum of 6 months and 10 days, and if these Agreements
constitute or contain, or the performance of such obligations
thereunder would constitute (i) a contract for the transfer of
movable or immovable property done without consideration, or a
contract or transaction done with notably insufficient
consideration for the Company or (ii) a payment, whether in cash
or by transfer, assignment, sale, set-off or otherwise for debts
not yet due, or a payment other than in cash or bills of exchange
for debts due, or (iii) a contractual
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or judiciary mortgage, pledge, or charge on the Company's assets
for previously contracted debts;
-- the obligations of the Company under the Agreements to which it
is a party may be affected and after their performance, subject
to annulment by a court on the basis of Article 446 of the
Luxembourg Code of Commerce, if these Agreements constitute or
contain, or the performance of such obligations thereunder would
constitute a payment for due debts or an onerous act done by the
Company after the stoppage of payments (such date as determined
by the court) and prior to the judgement opening Insolvency
Proceedings, if the counter-party that has received from or dealt
with the Company had knowledge of the stoppage of payments;
-- regardless of the date of execution and performance, the
Agreements may be declared null and void in relation to the
Company, if they have been entered into with the fraudulent
intent of the parties thereto to deprive other creditors of the
insolvent party of their rights (Article 448 of the Code of
Commerce);
-- the obligations of the Company may be affected or limited by the
rights of the receiver, liquidator or other court official
appointed in the Insolvency Proceedings to selectively perform
contracts profitable to the insolvent party's estate and renounce
to the performance of contracts which are not profitable to the
insolvent party's estate ("cherry-picking"), where such contracts
have not been terminated automatically by the opening of the
insolvency proceedings on the basis of an express contractual
provision, or by operation of law;
7.2 by application of article 203 of the Luxembourg Code on Commercial
Companies a company not respecting any provision of Luxembourg
criminal law or Luxembourg Law on Commercial Companies (especially but
not limited to the obligations to lodge with the Register and publish
the annual accounts) may be put into judicial liquidation upon the
application of the Public Prosecutor;
7.3 the rights and obligations of the Company under the Agreements to
which it is a party may be limited by general principles of criminal
law, including but not limited to criminal freezing orders;
7.4 whilst, in the event of any proceedings being brought in a Luxembourg
court in respect of a monetary obligation expressed to be payable in a
currency other than Euro, a Luxembourg court would have power to give
judgement expressed as an order to pay a currency other than Euro,
enforcement of the judgement against the Company in Luxembourg would
be available only in Euro and for such purposes all claims or debts
would be converted into Euro;
7.5 a Luxembourg court may stay proceedings if concurrent proceedings are
being brought elsewhere;
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7.6 the expression valid and binding in paragraph 6 above means that the
obligations expressed to be assumed by the Company under the
Agreements to which the Company is a party are of a type which the
Luxembourg courts would treat as valid and binding. It does not mean
that these obligations will necessarily be enforced in all
circumstances in accordance with their terms, as to which reference is
made to the other qualifications expressed in this opinion and to the
fact that a remedy such as specific performance or the issue of an
injunction or a remedy such as termination for breach of contract are
discretionary. In particular, notwithstanding any agreement purporting
to confer the availability of any remedy, such remedy may not be
available where damages instead of specific performance or specific
performance instead of termination for breach of contract are
considered by the court to be an adequate alternative remedy;
7.7 a contractual provision conferring or imposing a remedy, an obligation
or penalty consequent upon default may not be fully enforceable if it
were construed by a Luxembourg court as constituting an excessive
pecuniary remedy;
7.8 a Luxembourg court may refuse to give effect to a purported
contractual obligation to pay costs imposed upon another party in
respect of the costs of any unsuccessful litigation brought against
that party before a Luxembourg court and a Luxembourg court may not
award by way of costs all of the expenditure incurred by a successful
litigant in proceeding brought before such court;
7.9 with respect to provisions under which determination of circumstances
or certification by any party is stated or implied to be conclusive
and binding upon the Company, a Luxembourg court would be authorised
to examine whether such determination occurred in good faith;
7.10 with respect to subordination provisions contained in the Agreements,
there is, to our knowledge, no Luxembourg case law or legal doctrine
on the validity and enforceability (under Luxembourg law) thereof. It
is our opinion that Luxembourg courts should admit the validity and
enforceability of such provisions establishing contractual
arrangements to the extent that they do not grant to a particular
creditor a better rank in the distribution of the debtor's assets by
impairing the rights of the other creditors, unless said creditors
have expressly agreed to their rights being impaired. The principle of
pari passu treatment of creditors should not be construed so as to
prohibit one or more creditors to limit, or renounce to, their rights
in the sense that they dispose of their own rights without altering
other creditors' rights
7.11 if a court would conclude that the transaction was not in the best
corporate interest and would decide that it constitutes a misuse of
corporate assets and credit of the Company ("abus des biens et du
credit de la societe"), then the validity and enforceability of the
obligations of the Company under the Agreements may be affected by
such decision;
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7.12 claims may become barred under the statute of limitations or may be or
become subject to defences of set-off or counterclaim;
7.13 the Luxembourg courts would not apply a chosen foreign law if the
choice was not made bona fide and/or if:
-- the foreign law was not pleaded and proved; or
-- if pleaded and proved, such foreign law would be contrary to the
mandatory rules of Luxembourg law or manifestly incompatible with
Luxembourg international public policy or public order;
7.14 Luxembourg court may refuse to apply the chosen governing law:
-- if all elements of the matter are localised in a country other
than the jurisdiction of the chosen governing law in which case
it may apply the imperative laws of that jurisdiction; or
-- if the agreement has a strong connection to another jurisdiction
and certain laws of that jurisdiction are applicable regardless
of the chosen governing law ("lois de police"), in which case it
may apply those laws; or
-- if a party is subject to insolvency proceedings, in which case it
apply the insolvency laws of the jurisdiction in which such
insolvency proceedings have been regularly opened to the effects
of such insolvency;
7.15 notwithstanding the jurisdiction clause contained in the Agreements,
Luxembourg courts would have in principle jurisdiction for any
conservatory or provisional action in connection with assets located
in Luxembourg and such action would most likely be governed by
Luxembourg law;
7.16 the admissibility as evidence of the Agreements before a Luxembourg
court or public authority to which the Agreements are produced may
require that the Agreements be accompanied by a complete or partial
translation in the French or German language;
7.17 although such orders are rarely made in practice, Luxembourg courts
may require the prior registration of the Agreements, or any other
document if they were to be produced in a Luxembourg court action, in
which case a registration duty would become payable;
7.18 no opinion is given as to whether the performance of the Agreements
would cause any borrowing limits, debt/equity ratios, prudential,
regulatory or other applicable ratios or borrowing limits to be
exceeded or as to the consequences thereof;
7.19 other than as referred to in paragraph 6, no opinion is expressed on
any tax consequences of the transactions considered;
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7.20 no opinion is expressed or implied in relation to the accuracy of any
representation or warranty given by or concerning any of the parties
to the Agreements (to the extent such representation or warranty
relates to factual matters and legal matters other than those covered
in this legal opinion) or whether such parties or any of them have
complied with or will comply with any covenant or undertaking given by
them or the terms and conditions of any obligations binding upon them;
7.21 a severability clause may be ineffective if a Luxembourg court
considers that the illegal, invalid or unenforceable clause was a
substantive or material clause;
7.22 as regards the enforcement in Luxembourg of a civil or commercial
judgement delivered in a court of a state different from the Signatory
States of the Brussels or the Lugano Convention which is expressed to
have jurisdiction in the Agreements (the "Court"), such enforcement
would make it necessary to commence recognition and enforcement
proceedings before the Luxembourg courts and, in this respect, (i) the
enforceable nature of such judgement, (ii) the international
jurisdiction of the Court in light of the Luxembourg applicable rules,
(iii) the jurisdiction of the Court in light of its own domestic
applicable rules, (iv) the application of the appropriate law as
determined by the Luxembourg rules of conflict of laws, (v) the
compliance with the rules of procedure as determined by the law
applicable to the Court and (vi) the compliance of such judgement with
Luxembourg public order ("ordre public") would be examined;
7.23 we express no opinion as regards the enforceability of any security
interest (including any guarantee) in the Agreements in case the
security interest was called in an abusive manner.
8. This opinion is given to you for use in connection with the above
transaction. It may not be relied upon by any other person than you or used
for any other purpose and neither its contents nor its existence may be
disclosed without our written consent, save that its delivery may be
referred to as a condition of the closing, it may be disclosed to (but may
not be relied upon by) your legal advisors and it may be filed as an
exhibit to the Registration Statement.
This opinion pertains exclusively to matters of Luxembourg law, is governed
by Luxembourg law and Luxembourg courts shall have exclusive jurisdiction
thereon.
Sincerely yours,
/s/ Bonn Schmitt Steichen
BONN SCHMITT STEICHEN