EXHIBIT 4.6
EXECUTION VERSION
================================================================================
New ASAT (Finance) Limited
as Issuer,
ASAT Holdings Limited
and certain of its Subsidiaries referred to herein,
as Guarantors
and
The Bank of New York,
as Trustee
----------------------------
INDENTURE
Dated as of January 26, 2004
----------------------------
$150,000,000
9.25% Senior Notes due 2011
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE........................1
Section 1.1 Definitions...................................................1
Section 1.2 Incorporation by Reference of TIA............................27
Section 1.3 Rules of Construction........................................27
ARTICLE II THE SECURITIES...................................................27
Section 2.1 Form and Dating..............................................27
Section 2.2 Execution and Authentication.................................28
Section 2.3 Registrar and Paying Agent...................................28
Section 2.4 Paying Agent to Hold Assets in Trust.........................29
Section 2.5 Securityholder Lists.........................................29
Section 2.6 Transfer and Exchange........................................30
Section 2.7 Replacement Securities.......................................35
Section 2.8 Outstanding Securities.......................................35
Section 2.9 Treasury Securities..........................................35
Section 2.10 Temporary Securities.........................................36
Section 2.11 Cancellation.................................................36
Section 2.12 Defaulted Interest...........................................36
Section 2.13 CUSIP Numbers................................................37
ARTICLE III REDEMPTION.......................................................37
Section 3.1 Right of Redemption..........................................37
Section 3.2 Notices to Trustee...........................................38
Section 3.3 Selection of Securities to Be Redeemed.......................38
Section 3.4 Notice of Redemption.........................................39
Section 3.5 Effect of Notice of Redemption...............................40
Section 3.6 Deposit of Redemption Price..................................40
Section 3.7 Securities Redeemed in Part..................................40
Section 3.8 Optional Tax Redemption......................................40
Section 3.9 Notices to SGX...............................................41
ARTICLE IV COVENANTS........................................................41
Section 4.1 Payment of Securities........................................41
Section 4.2 Maintenance of Office or Agency..............................41
Section 4.3 Limitation on Restricted Payments............................42
Section 4.4 Corporate and Partnership Existence..........................45
Section 4.5 Payment of Taxes and Other Claims............................45
Section 4.6 Maintenance of Properties and Insurance......................46
Section 4.7 Compliance Certificate; Notice of Default....................46
Section 4.8 Reports......................................................47
Section 4.9 Limitation on Location of Business...........................47
Section 4.10 Limitation on Transactions with Affiliates...................47
Section 4.11 Limitation on Incurrence of Additional Indebtedness and
Issuance of Disqualified Capital Stock and Preferred
Stock.......................................................48
Section 4.12 Limitations on Dividends and Other Payment Restrictions
Affecting Subsidiaries......................................50
Section 4.13 Additional Covenants.........................................51
Section 4.14 Limitation on Sale of Assets and Subsidiary Stock............52
Section 4.15 Waiver of Stay, Extension or Usury Laws......................56
Section 4.16 Limitation on Liens..........................................56
Section 4.17 Rule 144A Information Requirement............................56
i
Section 4.18 Limitation on Lines of Business..............................57
Section 4.19 Additional Amounts...........................................57
Section 4.20 Restrictions on Ownership of ASAT and the Company............58
Section 4.21 Payment for Consent..........................................58
Section 4.22 Indemnification of Judgment Currency.........................58
ARTICLE V SUCCESSOR CORPORATION............................................59
Section 5.1 Limitation on Merger, Sale or Consolidation..................59
Section 5.2 Successor Corporation Substituted............................60
ARTICLE VI EVENTS OF DEFAULT AND REMEDIES...................................61
Section 6.1 Events of Default............................................61
Section 6.2 Acceleration of Stated Maturity; Rescission and Annulment....62
Section 6.3 Collection of Indebtedness and Suits for Enforcement by
Trustee.....................................................63
Section 6.4 Trustee May File Proofs of Claim.............................64
Section 6.5 Trustee May Enforce Claims Without Possession of
Securities..................................................64
Section 6.6 Priorities...................................................64
Section 6.7 Limitation on Suits..........................................65
Section 6.8 Unconditional Right of Holders to Receive Principal,
Premium and Interest........................................65
Section 6.9 Rights and Remedies Cumulative...............................66
Section 6.10 Delay or Omission Not Waiver.................................66
Section 6.11 Control by Holders...........................................66
Section 6.12 Waiver of Existing or Past Default...........................66
Section 6.13 Undertaking for Costs........................................67
Section 6.14 Restoration of Rights and Remedies...........................67
ARTICLE VII TRUSTEE..........................................................67
Section 7.1 Duties of Trustee............................................67
Section 7.2 Rights of Trustee............................................68
Section 7.3 Individual Rights of Trustee.................................69
Section 7.4 Trustee's Disclaimer.........................................70
Section 7.5 Notice of Default............................................70
Section 7.6 Reports by Trustee to Holders................................70
Section 7.7 Compensation and Indemnity...................................70
Section 7.8 Replacement of Trustee.......................................71
Section 7.9 Successor Trustee by Merger, Etc.............................72
Section 7.10 Eligibility; Disqualification................................72
Section 7.11 Preferential Collection of Claims Against Company............72
Section 7.12 Appointment of Co-Trustee....................................72
ARTICLE VIII DISCHARGE; LEGAL DEFEASANCE AND COVENANT DEFEASANCE..............74
Section 8.1 Discharge; Option to Effect Legal Defeasance or Covenant
Defeasance..................................................74
Section 8.2 Legal Defeasance and Discharge...............................74
Section 8.3 Covenant Defeasance..........................................75
Section 8.4 Conditions to Legal or Covenant Defeasance...................75
Section 8.5 Deposited Cash and U.S. Government Obligations to be Held
in Trust; Other Miscellaneous Provisions....................77
Section 8.6 Repayment to the Company.....................................77
Section 8.7 Reinstatement................................................77
ARTICLE IX AMENDMENTS, SUPPLEMENTS AND WAIVERS..............................78
Section 9.1 Supplemental Indentures Without Consent of Holders...........78
Section 9.2 Amendments, Supplemental Indentures and Waivers with
Consent of Holders..........................................78
Section 9.3 Compliance with TIA..........................................80
Section 9.4 Revocation and Effect of Consents............................80
ii
Section 9.5 Notation on or Exchange of Securities........................80
Section 9.6 Trustee to Sign Amendments, Etc..............................80
ARTICLE X RIGHT OF HOLDERS TO REQUIRE REPURCHASE OF SECURITIES.............81
Section 10.1 Repurchase of Securities Upon a Change of Control............81
ARTICLE XI GUARANTEE........................................................83
Section 11.1 Guarantee....................................................83
Section 11.2 Execution and Delivery of Guarantee..........................86
Section 11.3 Certain Bankruptcy Events....................................87
Section 11.4 Release of Guarantors........................................87
ARTICLE XII [RESERVED].......................................................87
ARTICLE XIII MISCELLANEOUS....................................................87
Section 13.1 TIA Controls.................................................87
Section 13.2 Notices......................................................87
Section 13.3 Communications by Holders with Other Holders.................89
Section 13.4 Certificate and Opinion as to Conditions Precedent...........89
Section 13.5 Statements Required in Certificate or Opinion................89
Section 13.6 Rules by Trustee, Paying Agent, Registrar....................89
Section 13.7 Legal Holidays...............................................89
Section 13.8 Governing Law................................................89
Section 13.9 Waiver of Jury Trial.........................................90
Section 13.10 No Adverse Interpretation of Other Agreements................90
Section 13.11 No Personal Liability of Partners, Stockholders,
Officers, Directors.........................................90
Section 13.12 Successors...................................................90
Section 13.13 Duplicate Originals..........................................90
Section 13.14 Severability.................................................90
Section 13.15 Consent to Service and Jurisdiction; Appointment of
Agent; Waiver of Sovereign Immunity; etc....................90
Section 13.16 Table of Contents, Headings, Etc.............................92
Section 13.17 Qualification of Indenture...................................92
Section 13.18 Force Majeure................................................92
Section 13.19 Obligations of ASAT Holdings.................................92
iii
CROSS-REFERENCE TABLE
TIA Indenture
Section 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).............................................................. 2.5
(b).............................................................. 13.3
(c).............................................................. 13.3
313(a).............................................................. 7.6
(b)(1)........................................................... 7.6
(b)(2)........................................................... 7.6
(c).............................................................. 7.6
(d).............................................................. N.A.
314(a).............................................................. 4.7(1)
315(a).............................................................. 7.2
(b).............................................................. 7.5
(c).............................................................. 7.1
(d).............................................................. 7.1
(e).............................................................. 6.13
316(a)(last sentence)............................................... 2.9
(a)(1)(A)........................................................ 6.11
(a)(1)(B)........................................................ 6.12
(a)(2)........................................................... N.A.
(b).............................................................. 6.8
317(a)(1)........................................................... 6.3
(a)(2)........................................................... 6.4
(b).............................................................. 2.4
318(a).............................................................. 13.1
(b).............................................................. N.A.
(c).............................................................. 13.1
----------
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
INDENTURE, dated as of January 26, 2004, by and among New ASAT (Finance)
Limited, an exempted company with limited liability under the Companies Law
(2003 Revision) of the Cayman Islands (the "Company"), the Guarantors (as
defined below) and The Bank of New York, as trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of each other party and
for the equal and ratable benefit of the Holders of the Company's 9.25% Series A
Senior Notes due 2011 to be exchanged for the 9.25% Series B Senior Notes due
2011.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
-----------
"Acquired Indebtedness" means Indebtedness (including Disqualified Capital
Stock) of any Person existing at the time such Person becomes a Restricted
Subsidiary of ASAT Holdings, including by designation, or is merged or
consolidated into or with ASAT Holdings or one of its Restricted Subsidiaries.
"Acquisition" includes purchase, acquisition, merger, consolidation or
other business combination transaction.
"Additional Amounts" has the meaning given to such term in Section 4.19.
"Additional Assets" means:
(a) any property or assets (other than cash, Cash Equivalents,
Indebtedness and Capital Stock) of ASAT Holdings or a Restricted Subsidiary
which upon any acquisition will be used or useful in or to form part of a
Related Business;
(b) the Capital Stock of a Person that becomes a Restricted
Subsidiary as a result of the acquisition of the Capital Stock of such
Person by ASAT Holdings or a Restricted Subsidiary; or
(c) additional Capital Stock in any Person that immediately prior
thereto is a Restricted Subsidiary;
provided, however, that any such Restricted Subsidiary described in clauses (b)
or (c) above is primarily engaged in a Related Business.
"Affiliate" means any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with ASAT Holdings. For
purposes of this definition, the term "control" means the power to direct the
management and policies of a Person, directly or through one or more
intermediaries, whether through the ownership of voting securities, by contract,
or otherwise; provided, that with respect to ownership interest in ASAT Holdings
and its Subsidiaries, a Beneficial Owner of 10% or more of the total voting
power on a fully diluted basis normally entitled to vote in the election of
directors, managers or trustees, as applicable, shall for such purposes be
deemed to constitute control. Notwithstanding the foregoing, Affiliate shall not
include Wholly-Owned Subsidiaries.
"Affiliate Transaction" has the meaning given to such term in Section 4.10.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"ASAT" or "ASAT Limited" means ASAT Limited, a limited liability company
formed under the laws of Hong Kong.
"ASAT Holdings" means ASAT Holdings Limited, an exempted company with
limited liability under the Companies Law (2003 Revision) of the Cayman Islands.
"ASAT, Inc." means ASAT, Inc., a California corporation.
"Asset Sale" has the meaning given to such term in Section 4.14.
"Asset Sale Offer" has the meaning given to such term in Section 4.14.
"Asset Sale Offer Amount" has the meaning given to such term in Section
4.14.
"Asset Sale Offer Price" has the meaning given to such term in Section
4.14.
"Attributable Debt" means all obligations of a Person with respect to
personal property in respect of a Sale and Leaseback Transaction, which at any
date as of which the amount thereof is to be determined (i) if such Sale and
Leaseback Transaction is a Capitalized Lease Obligation, shall represent an
amount of Indebtedness determined by the definition of "Capitalized Lease
Obligation" and (ii) in all other instances, shall represent an amount of
Indebtedness equal to the present value (discounted at the interest rate borne
by the Securities, compounded annually) of the total obligations of the lessee
for net rental or other scheduled payments during the remaining term of the
lease, license or other agreement included in such Sale and Leaseback
Transaction (including any period for which such lease, license or other
agreement has been extended or may, at the option of the lessee, be extended).
"Average Life" means, as of the date of determination, with respect to any
Indebtedness or Disqualified Capital Stock, the quotient obtained by dividing
(1) the sum of the products of (a) the number of years (rounded to the nearest
one-twelfth of a year) from the date of determination to the date or dates of
each successive scheduled principal (or redemption) payment of such Indebtedness
or Disqualified Capital Stock and (b) the amount of each such respective
principal (or redemption) payment by (2) the sum of all such principal (or
redemption) payments.
"Bankruptcy Law" means any bankruptcy, insolvency, reorganization or other
similar law of Cayman Islands, Hong Kong, the United States of America or other
applicable jurisdiction or any political subdivision thereof or other applicable
bankruptcy, insolvency, reorganization or other similar law.
"Beneficial Owner" or "beneficial owner" for purposes of the definition of
Change of Control and Affiliate has the meaning attributed to it in Rules 13d-3
and 13d-5 under the Exchange Act, whether or not applicable, except that a
"person" shall be deemed to have "beneficial ownership" of all shares that any
such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time.
"Board of Directors" means, with respect to any Person, the board of
directors of such Person or any committee of the board of directors of such
Person authorized, with respect to any particular matter, to exercise the power
of the board of directors of such Person.
"Board Resolution" means, with respect to any Person, a duly adopted
resolution of the Board of Directors of such Person.
2
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York, New York or
Singapore are authorized or obligated by law or executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
partnership, membership or other interests, participations or other equivalents
or interests in (however designated) equity of such Person, including any
Preferred Stock and the ownership interests in any wholly-owned foreign
enterprise and any rights to purchase, warrants, options or similar interests
with respect to the foregoing (but excluding, in all cases, any Indebtedness
convertible or exchangeable into such interests prior to such conversion or
exchange).
"Capitalized Lease Obligation" means, as to any Person, the obligations of
such Person under a lease or any other agreement that is required to be
classified and accounted for as capital lease obligations under GAAP and, for
purposes of this definition, the amount of such obligations at any date shall be
the capitalized amount of such obligations at such date, determined in
accordance with GAAP and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due thereunder prior to the first date
upon which such lease may be terminated by the lessee without payment of a
penalty or termination payment.
"Cash" or "cash" means such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public or private debts.
"Cash Equivalent" means:
(a) any evidence of indebtedness issued by the United States of
America or any of its instrumentalities or agencies or by Hong Kong or any
of its instrumentalities or agencies, or by the Asian Development Bank, the
World Bank or any other supranational organization ("Government Entities")
and fully guaranteed or otherwise backed as to principal, premium, if any,
interest and all other amounts, by the Government Entity issuing the
indebtedness;
(b) investments in time deposit accounts, certificates of deposit and
money market deposits 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 $500.0 million, or the foreign currency equivalent
thereof, and has outstanding long-term debt which is rated "A" or "A-3", 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;
(c) investments in commercial paper issued by a corporation, other
than an Affiliate of ASAT Holdings, 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 in one of the two highest ratings obtainable
from either Xxxxx'x or S&P;
(d) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (a) above entered
into with a bank meeting the qualifications described in clause (b) above;
(e) investments in securities with maturities of six months or less
from the date of acquisition issued or fully guaranteed by an state,
commonwealth or territory of the United States of America, or by an
political subdivision or taxing authority thereof, and rated at least "A"
by S&P or "A" by Xxxxx'x; or
3
(f) investment funds investing exclusively in investments of the
types described in clauses (a) though (e) above;
and in the case of each of (a), (b) and (c) maturing within one year after the
date of acquisition.
"Change of Control" means:
(a) (i) any "person" or "group" (other than one or more Excluded
Persons) is or becomes the "beneficial owner," directly or indirectly,
whether by merger, consolidation, acquisition, subscription or in any other
manner of more than 50% of the total voting power in the aggregate of all
classes of ASAT's or ASAT Holdings' Voting Equity Interests then
outstanding,
(ii) the Continuing Directors cease for any reason to constitute
a majority of ASAT's or ASAT Holdings' Board of Directors then in
office, or
(iii) the adoption of a plan relating to the liquidation or
dissolution of ASAT or ASAT Holdings;
(b) the first day on which 100% of the issued and outstanding shares
of Capital Stock of the Company (other than director's qualifying shares or
similar shares held by others as required by applicable law) are no longer
owned by any of (i) ASAT, (ii) ASAT Holdings or (iii) an entity that
becomes the successor to either ASAT or ASAT Holdings as a result of the
consummation of a transaction that complies with the restrictions set forth
in Section 5.1;
(c) the Company is no longer classified as a "disregarded entity" for
United States federal income tax purposes and, as a result, either (i) the
Company becomes subject to or is required to withhold income tax on income
necessary to make payments on the Securities; or (ii) any Holder is
required to file a United States federal income tax return and such Holder
would not otherwise have been required to file such a return; or
(d) (i) ASAT or the Company receives a written assertion from the
Internal Revenue Service to the effect that activities conducted by the
Company have resulted in ASAT becoming engaged in a trade or business in
the United States; (ii) the Trustee has received the opinion of nationally
recognized tax counsel, reasonably acceptable to the Trustee, that it is
more likely than not that the Internal Revenue Service would prevail; and
(iii) the amount of net income tax imposed or required to be withheld as
assessed exceeds five percent (5%) of ASAT Holdings' Consolidated EBITDA in
respect of the fiscal year for which such tax is assessed.
"Change of Control Offer" has the meaning given to such term in Section
10.1.
"Change of Control Offer Period" has the meaning given to such term in
Section 10.1.
"Change of Control Purchase Date" has the meaning given to such term in
Section 10.1.
"Change of Control Purchase Price" has the meaning given to such term in
Section 10.1.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the party named as such in this Indenture until a successor
replaces it pursuant to this Indenture, and thereafter means such successor.
4
"Consolidated Coverage Ratio" of any Person on any date of determination
(the "Transaction Date") means the ratio, on a pro forma basis, of (a) the
aggregate amount of Consolidated EBITDA of such Person for the Reference Period
to (b) the aggregate Consolidated Fixed Charges of such Person during the
Reference Period; provided, that for purposes of the calculation of such ratio:
(i) if ASAT Holdings, a Restricted Subsidiary or a Person that
became a Restricted Subsidiary or was merged with or into ASAT Holdings or
any Restricted Subsidiary since the beginning of such period, (A) acquires
property which contributes all or substantially all of an operating unit or
business or (B) consummates Asset Sales or ceases to be Restricted
Subsidiary or otherwise disposes of any property that contributes all or
substantially all of an operating unit or business during the Reference
Period or subsequent to the Reference Period and on or prior to the
Transaction Date during the Reference Period or subsequent to the Reference
Period and on or prior to the Transaction Date, in each case, such
cessation, acquisition, sale, Asset Sale or disposition, as the case may
be, shall be assumed to have occurred on the first day of the Reference
Period,
(ii) transactions giving rise to the need to calculate the
Consolidated Coverage Ratio shall be assumed to have occurred on the first
day of the Reference Period,
(iii) the incurrence or repayment, prepayment, repurchase, redemption,
defeasance or other retirement for value of any Indebtedness (including any
Disqualified Capital Stock) by the Company, ASAT Holdings or its Restricted
Subsidiaries during the Reference Period or subsequent to the Reference
Period and on or prior to the Transaction Date shall be assumed to have
occurred on the first day of the Reference Period on a pro forma basis, and
(iv) the Consolidated Fixed Charges attributable to interest on any
Indebtedness or dividends on any Disqualified Capital Stock bearing a
floating interest (or dividend) rate shall be computed on a pro forma basis
as if the average rate in effect from the beginning of the Reference Period
to the Transaction Date had been the applicable rate for the entire period,
unless such Person or any of its Restricted Subsidiaries is a party to an
Interest Swap and Hedging Obligation (which shall remain in effect for the
lesser of (A) 12 months or (B) the remaining period until the Stated
Maturity of such Indebtedness) that has the effect of fixing the interest
rate on the date of computation, in which case such rate (whether higher or
lower) shall be used.
"Consolidated EBITDA" means, with respect to any Person, for any period,
the Consolidated Net Income of such Person for such period adjusted to add
thereto (to the extent deducted from Consolidated Net Income), without
duplication, the sum of:
(a) Consolidated income tax expense,
(b) Consolidated depreciation and amortization expense,
(c) Consolidated Fixed Charges,
(d) any other Consolidated non-cash items (other than gains or losses
due solely to fluctuations in currency values and the related tax effects
in accordance with GAAP, any such non-cash items to the extent that it
represents an accrual of or reserve for cash expenditures in any future
period), and
(e) any non-recurring cash restructuring charges realized by ASAT
Holdings related to Hong Kong restructurings and the relocation of
operations from Hong Kong to Dongguan City, China; provided the cash
restructuring charges referred to in this clause (e) shall not exceed $25
million;
5
in each case, only of such Person and its Consolidated Restricted Subsidiaries;
less the amount of all cash payments made by such Person or any of its
Restricted Subsidiaries during such period to the extent such payments relate to
non-cash charges that were added back in determining Consolidated EBITDA for
such period or any prior period; provided, that Consolidated income tax expense,
depreciation and amortization and non-cash charges of a Restricted Subsidiary
that is a less than Wholly-Owned Restricted Subsidiary shall only be added to
the extent (and in the same proportion) that the net income of such 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 paid
as dividends to ASAT Holdings by such Restricted Subsidiary without prior
approval (that has not been obtained), pursuant to the terms of its charter,
bylaws and all agreements, instruments, judgments, decrees, orders, statutes,
rules and governmental regulations applicable to such Restricted Subsidiary or
its shareholders.
"Consolidated Fixed Charges" of any Person means, for any period, the
aggregate amount (without duplication and determined in each case in accordance
with GAAP) of to the extent attributable to such period:
(a) interest expensed or capitalized, paid, accrued, or scheduled to
be paid or accrued (including, in accordance with the following sentence,
interest attributable to Capitalized Lease Obligations) of such Person and
its Consolidated Restricted Subsidiaries, including:
(i) amortization of debt discount and debt issuance costs and
non-cash interest expense on any Indebtedness,
(ii) the imputed interest with respect to Attributable Debt,
(iii) all commissions, discounts and other fees and charges owed
with respect to bankers' acceptances and letters of credit financings,
and
(iv) the net costs associated with Interest Swap and Hedging
Obligations, and
(b) the amount of dividends paid on, accrued or scheduled to be paid
or accrued, other than in Qualified Capital Stock, by such Person or any of
its Consolidated Restricted Subsidiaries (or which any of them have
guaranteed) in respect of Preferred Stock (including Disqualified Capital
Stock), to the extent such stock is held by Persons other than by
Restricted Subsidiaries of such Person or such Person.
For purposes of this definition, (x) interest on a Capitalized Lease Obligation
shall be deemed to accrue at an interest rate reasonably determined in good
faith by such Person to be the rate of interest implicit in such Capitalized
Lease Obligation in accordance with GAAP and (y) interest expense attributable
to any Indebtedness represented by the guaranty by such Person or a Restricted
Subsidiary of such Person of an obligation of another Person shall be deemed to
be the interest expense attributable to the Indebtedness guaranteed.
To avoid duplication, Consolidated Fixed Charges shall not include, to the
extent already included in such total Consolidated Fixed Charges, (a) the
amortization during such period of capitalized financing costs associated with
the issuance of the Securities and the application of the proceeds therefrom to
redeem the balance of the Senior Notes due 2006 and (b) the amortization during
such period of other capitalized financing costs.
"Consolidated Net Income" means, with respect to any Person for any period,
the net income (or loss) of such Person and its Consolidated Restricted
Subsidiaries (determined on a consolidated basis in accordance with GAAP) for
such period, adjusted to exclude (only to the extent included in computing such
net income (or loss) and without duplication):
6
(a) all gains or losses which are either extraordinary (as determined
in accordance with GAAP) or are either unusual or nonrecurring (including
any gain or loss from the sale or other disposition of assets, including
Sale and Leaseback Transactions, outside the ordinary course of business or
from the issuance or sale of any Capital Stock),
(b) the net income, if positive, of any other Person, other than a
Consolidated Restricted Subsidiary, in which such Person or any of its
Consolidated Restricted Subsidiaries has an interest, except to the extent
of the amount of any dividends or distributions actually paid in cash to
such Person or a Consolidated Restricted Subsidiary of such Person during
such period, but in any case not in excess of such Person's pro rata share
of such other Person's net income for such period,
(c) the net income, if positive, of any of such Person's Consolidated
Restricted Subsidiaries to the extent that the Restricted Subsidiary is
unable to both declare and pay dividends and otherwise distribute cash to
ASAT Holdings and any other Restricted Subsidiary as a result of the
operation of the terms of its charter or bylaws or any other agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to such Consolidated Restricted Subsidiary, except
that:
(i) ASAT Holdings' equity in the net income of any such
Restricted Subsidiary for such period shall be included in such
Consolidated Net Income up to the aggregate amount of cash actually
distributed by such Restricted Subsidiary during such period to ASAT
Holdings or another Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other distribution
to another Restricted Subsidiary, to the limitation contained in the
preamble to this clause (c)); and
(ii) ASAT Holdings' equity in a net loss of any such Restricted
Subsidiary for such period shall be included in determining such
Consolidated Net Income,
(d) the cumulative effect of a change in accounting principles,
(e) gains or losses due solely to fluctuations in currency values and
the related tax effects in accordance with GAAP, and
(f) if any Restricted Subsidiary is not a Wholly-Owned Restricted
Subsidiary, an amount that is equal to (i) the amount of net income or loss
attributable to such Restricted Subsidiary multiplied by (ii) the
percentage ownership interest in the income of such Restricted Subsidiary
not owned on the last day of such period by ASAT Holdings or any of its
Restricted Subsidiaries.
"Consolidated Restricted Subsidiary" means, for any Person, each Restricted
Subsidiary of such Person (whether now existing or hereafter created or
acquired) the financial statements of which are consolidated for financial
statement reporting purposes with the financial statements of such Person in
accordance with GAAP.
"consolidation" or "Consolidation" means, with respect to a Person, the
consolidation of the accounts of the Subsidiaries with those of such Person, all
in accordance with GAAP; provided, that except where the context otherwise
requires "consolidation" will not include consolidation of the accounts of any
Unrestricted Subsidiary with the accounts of such Person but the interest of a
Person or any Restricted Subsidiary in an Unrestricted Subsidiary will be
accounted for as an investment. "Consolidated" shall have the same meaning as
Consolidation.
7
"Continuing Director" means during any period of 24 consecutive months
after the Issue Date, individuals who at the beginning of any such 24-month
period constituted the Board of Directors of ASAT Holdings or ASAT, as
applicable, (together with any new directors whose election by such Board of
Directors or whose nomination for election by the shareholders of ASAT Holdings
or ASAT, as applicable, was approved by a vote of at least a majority of the
directors then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved, including new directors designated in or provided for in an agreement
regarding the merger, consolidation or sale, transfer or other conveyance, of
all or substantially all of the assets of ASAT Holdings or ASAT, as applicable,
if such agreement was approved by a vote of such majority of directors).
"Corporate Trust Office" means the office of the Trustee in the Borough of
Manhattan, The City of New York.
"Covenant Defeasance" has the meaning given to such term in Section 8.3.
"Credit Agreement" means, with respect to ASAT Holdings or any Restricted
Subsidiary, one or more debt or commercial paper facilities with banks or other
institutional lenders that in each case are not Affiliates of ASAT Holdings
(except for Affiliates which are banks lending in their ordinary course of their
banking business) providing for one or more revolving credit loans, term loans,
receivables or inventory financing (including through the sale of receivables or
inventory to such lenders or to special purpose, bankruptcy remote entities
formed to borrow from such lenders against such receivables or inventory)
swing-line or commercial paper facilities (including any letter of credit,
sub-facilities or other facilities) or letters of credit, including any related
notes, guarantees, collateral documents, instruments and agreements executed in
connection therewith, in each case as such credit agreement and/or related
documents may be amended, restated, supplemented, refinanced, renewed, replaced
or otherwise modified from time to time whether or not with the same agent,
trustee, representative lenders or holders, and, subject to the proviso to the
next succeeding sentence, irrespective of any changes in the terms and
conditions thereof. Without limiting the generality of the foregoing, the term
"Credit Agreement" shall include agreements in respect of Interest Swap and
Hedging Obligations with lenders party to the Credit Agreement and shall also
include any amendment, amendment and restatement, renewal, extension,
restructuring, supplement or modification to any Credit Agreement and all
refundings, refinancings, restructurings, renewals, extensions and replacements
of any Credit Agreement (subject in all cases to Section 4.11(3)(c)), including
any agreement:
(a) extending the maturity of any Indebtedness incurred thereunder or
contemplated thereby,
(b) adding or deleting borrowers or guarantors thereunder, so long as
borrowers, issuers and guarantors include one or more of ASAT Holdings and
its Restricted Subsidiaries and their respective successors and assigns,
(c) increasing the amount of Indebtedness incurred thereunder or
available to be borrowed thereunder; provided, that on the date such
Indebtedness is incurred it would be permitted by Section 4.11(3)(c), or
(d) otherwise altering the terms and conditions thereof in a manner
not prohibited by the terms of this Indenture.
"Currency Agreement" means in respect of any Person any foreign exchange
contract, currency swap or exchange agreement or other similar agreement to
which such Person is a party or beneficiary.
8
"Current Liabilities" means, as of any date of determination, the aggregate
amount of liabilities of ASAT Holdings and its Consolidated Restricted
Subsidiaries which may properly be classified as current liabilities (including
estimated taxes accrued and current), after eliminating:
(a) all intercompany items between ASAT Holdings and any Restricted
Subsidiary or between Restricted Subsidiaries, and
(b) all current maturities of long-term Indebtedness.
"Custodian" means any receiver, trustee, assignee, liquidator, sequestrator
or similar official under any Bankruptcy Law.
"Debt Incurrence Ratio" has the meaning given to such term in Section 4.11.
"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.
"Defaulted Interest" has the meaning given to such term in Section 2.12.
"Definitive Securities" means Securities that are in the form of Security
attached hereto as Exhibit A that do not include the information called for by
footnotes 2, 4 and 7 thereof.
"Depository" means, with respect to the Securities issuable or issued in
whole or in part in global form, the person specified in Section 2.3 as the
Depository with respect to the Securities, until a successor shall have been
appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depository" shall mean or include such successor.
"Designated Non-Guarantor Subsidiaries" has the meaning given to such term
in Section 11.1(8).
"Disqualified Capital Stock" means with respect to any Person, Capital
Stock of such Person that, by its terms or by the terms of any security into
which it is convertible, exercisable or exchangeable, is, or upon the happening
of an event or the passage of time or both would be, required to be redeemed or
repurchased (except for customary change of control and asset sale provisions,
including at the option of the holder thereof) by such Person or any of its
Restricted Subsidiaries, in whole or in part, on or prior to 91 days following
the Stated Maturity of the Securities.
"Dollar" and $ means a U.S. Dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"DTC" has the meaning given to such term in Section 2.3.
"Equity Offering" means a primary offering of ASAT Holdings' Capital Stock
other than Disqualified Capital Stock.
"Event of Default" has the meaning given to such term in Section 6.1.
"Event of Loss" means, with respect to any property or asset, any
(a) loss, destruction or damage of such property or asset or
(b) condemnation, seizure or taking, by exercise of the power of
eminent domain or otherwise, of such property or, asset, or confiscation or
requisition of the use of such property or asset.
9
"Excess Proceeds" has the meaning given to such term in Section 4.14.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the SEC thereunder.
"Exchange Guarantees" means the guarantees to be issued pursuant to this
Indenture in connection with the offer to exchange guarantees of the Securities
for guarantees of the Initial Securities that may be made by the Company
pursuant to the Registration Rights Agreement.
"Exchange Securities" means the 9.25% Series B Senior Notes due 2011, as
supplemented from time to time in accordance with the terms hereof, to be issued
pursuant to this Indenture in connection with the offer to exchange Securities
for the Initial Securities that may be made by the Company pursuant to the
Registration Rights Agreement that contains the information referred to in
footnotes 1 and 3 and excludes the information referred to in footnotes 5 and 8
to the form of Security attached hereto as Exhibit A.
"Excluded Person" means JPMP Master Fund Manager, L.P., CAIP Co-Investment
Fund Parallel Fund (I) C.V., CAIP Co-Investment Parallel Fund (II) C.V., Chase
Asia Investment Partners II (Y), LLC, Asia Opportunity Fund, L.P., Olympus
Capital Holdings Asia I, L.P., Reservoir-Olympus II, L.P., Olympus KB, L.P.,
Olympus Capital Asia, L.P., Olympus Capital Asia Offshore, L.P., Olympus
Holdings, L.P., Olympus-ASAT I, L.L.C., Olympus-ASAT II, L.L.C., Olympus Capital
Asia Holdings, ZAM-Olympus Co-Invest, L.L.C., Ziff Asset Management, L.P., QPL
International Holdings Limited and all Related Persons of such Persons.
"Exempt Subsidiary" has the meaning given to such term in Section 11.1.
"Exempted Affiliate Transaction" means:
(a) any transaction or series of transactions solely between or among
ASAT Holdings and one or more Restricted Subsidiaries or between or among
two or more Restricted Subsidiaries;
(b) reasonable and customary financial advisory securities
underwriting or similar arrangements with investment banking firms of
national reputation in the United States;
(c) payment of amounts under the lease with QPL International
Holdings Limited in the form of such lease as of the Issue Date; provided
that such payments are made in the ordinary course of business on customary
arm's length terms;
(d) Restricted Payments or Investments not prohibited under the terms
of Section 4.3;
(e) customary grants of stock options or similar rights, customary
issuances of securities pursuant to employment agreements or stock
ownership plans or restricted stock grants, in each case, to directors or
employees of ASAT Holdings or its Restricted Subsidiaries under plans or
agreements approved in good faith by the Board of Directors;
(f) customary loans or advances to employees, directors and officers
of ASAT Holdings or any of its Restricted Subsidiaries for travel,
entertainment, moving and other relocation expenses, in each case, made in
the ordinary course of business, in compliance with applicable law;
10
(g) employee compensation and employee benefit arrangements approved
by a majority of independent (as to such transactions) members of the Board
of Directors and reasonable and customary directors fee, indemnification
and similar arrangements;
(h) transactions pursuant with agreements in effect on the Issue Date
and disclosed in the Offering Memorandum or in filings made by ASAT
Holdings with the SEC on or prior to the Issue Date;
(i) the issuance or sale to an Affiliate of any of Capital Stock,
other than Disqualified Capital Stock, of ASAT Holdings;
(j) reasonable fees, compensation or employee benefit arrangements
to, and indemnity provided for the benefit of, employees, directors,
officers or consultants of ASAT Holdings or any Restricted Subsidiary in
the ordinary course of business in compliance with applicable law; and
(k) transactions with customers, clients, suppliers, joint venture
partners or purchasers or sellers of goods or services, in each case in the
ordinary course of business, including, without limitation, under joint
venture agreements, and otherwise in compliance with the terms of this
Indenture, which are fair to ASAT Holdings and its Restricted Subsidiaries,
in the reasonable determination of the Board of Directors or the senior
management thereof, and are on terms at least as favorable as might
reasonably have been obtained at the time from a non-Affiliate.
"Existing Indebtedness" means the Indebtedness of the Company, ASAT
Holdings and its Subsidiaries in existence on the Issue Date, excluding, except
for the 45 days immediately following the Issue Date, the Senior Notes due 2006,
in each case, reduced to the extent such amounts are repaid, refinanced or
retired.
"Fair Market Value" means, with respect to any asset, the price which could
be negotiated in an arm's-length free market transaction, for cash, between a
willing seller and a willing buyer, neither of which is under pressure or
compulsion to complete the transaction. Fair Market Value shall be determined
except as otherwise provided, (i) if such asset has a Fair Market Value equal to
or less than $2 million, in good faith by any disinterested officer or director
of ASAT Holdings or the applicable Restricted Subsidiary or (ii) if such asset
has a Fair Market Value in excess of $2 million, in good faith by a majority of
the Board of Directors of ASAT Holdings evidenced by a board resolution, dated
within 30 days of the relevant transaction.
"GAAP" means United States 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 approved by a significant segment of the
accounting profession in the United States as in effect from time to time.
"Global Security" means a Security that contains the information referred
to in footnotes 2, 4 and 7 to the form of Security attached hereto as Exhibit A.
"Guarantees" means, collectively, the guarantees of each of the Guarantors
provided in Section 11.1 and, when and if issued as provided in the Registration
Rights Agreement, the Exchange Guarantees.
"Guarantor" means ASAT Holdings and each of ASAT Holdings' present and
future Restricted Subsidiaries, that at the time are guarantors of the
Securities in accordance with this Indenture.
11
"Holder" or "Securityholder" means the Person in whose name a Security is
registered on the Registrar's books.
"incur" or "incurrence" has the meaning given to such term in Section 4.11.
"Incurrence Date" has the meaning given to such term in Section 4.11.
"Indebtedness" of any Person means, without duplication, as of any date of
determination:
(a) all liabilities and obligations, contingent or otherwise, of any
such Person, to the extent such liabilities and obligations would appear as
a liability upon the consolidated balance sheet of such Person in
accordance with GAAP:
(i) in respect of borrowed money (whether or not the recourse
of the lender is to the whole of the assets of such Person or only to
a portion thereof),
(ii) in respect of debt evidenced by bonds, notes, debentures or
similar instruments for the payment of which such Person is liable, or
(iii) in respect of the balance deferred and unpaid of the
purchase price of any property, other than trade accounts payable and
accrued expenses related thereto incurred in the ordinary course of
its business and any lease properly classified as an operating lease
in accordance with GAAP;
(b) all liabilities and obligations, contingent or otherwise, of such
Person for the payment or reimbursement of any obligation evidenced by
bankers acceptances, performance or surety bonds, completion guarantees,
letters of credit, standby letters of credit or similar instruments issued
or accepted by banks but excluding obligations with respect to letters of
credit securing obligations (other than obligations described in clause (a)
above and (c), (d), (e) and (f) below) entered into in the ordinary course
of business of such Person to the extent such bankers acceptances,
performance or surety bonds, completion guarantees, letters of credit,
standby letters of credit, or similar instruments are not drawn upon or, if
and to the extent drawn upon, such drawing is reimbursed no later than the
third Business Day following receipt by such Person of a demand for
reimbursement;
(c) all Capitalized Lease Obligations, Purchase Money Indebtedness
and all Attributable Debt of such Person;
(d) all net obligations of such Person under Interest Swap and
Hedging Obligations;
(e) all obligations of others of the kind described in the preceding
clauses (a) through (d) above and (f) below that such Person has guaranteed
or for which such Person is liable as obligor or guarantor or which
otherwise is such person's legal liability;
(f) the amount of all obligations of such Person with respect to the
redemption, prepayment or other purchase or repurchase of Disqualified
Capital Stock of such Person; and
(g) all obligations of the type referred to in clauses (a) through
(c) and (e) and (f) of other Persons secured by any Lien on any property of
such Person (whether or not such obligation is assumed by such Person), the
amount of such obligation (to the extent that such Person is not an obligor
thereof) being deemed to be the lesser of the fair market value (as
determined by ASAT Holdings in good faith) of such property subject to such
Lien or the amount of the obligation so secured.
12
For purposes of this definition only, the redemption, purchase or
repurchase price of Disqualified Capital Stock shall mean the price at which
such Disqualified Capital Stock may be redeemed by the holder thereof or
required to be purchased or repurchased by such Person at the option of the
holder thereof on the date such Disqualified Capital Stock may first be
redeemed, required to be purchased or repurchased by such Person at the option
of the holder thereof.
The amount of any Indebtedness outstanding as of any date shall be:
(a) the accreted value thereof, in the case of any Indebtedness
issued with original issue discount; and
(b) the principal amount thereof.
"Indenture" means this Indenture, as amended or supplemented from time to
time in accordance with the terms hereof.
"Initial Securities" means the 9.25% Series A Senior Notes due 2011, as
supplemented from time to time in accordance with the terms hereof, issued under
this Indenture that contains the information referred to in footnotes 5, 6 (to
the extent applicable) and 8 to the form of Security attached hereto as Exhibit
A.
"Interest Payment Date" means the stated due date of an installment of
interest on the Securities.
"Interest Swap and Hedging Obligation" means any obligation of any Person
pursuant to any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate exchange agreement, foreign
exchange contract, Currency Agreement, forward contract, commodity swap
agreement, commodity option agreement or any other similar agreement or
arrangement designed to protect against fluctuations in interest rates,
commodity prices or currency values, including, without limitation, any
arrangement whereby, directly or indirectly, such Person is entitled to receive
from time to time periodic payments calculated by applying either a fixed or
floating rate of interest on a stated notional amount in exchange for periodic
payments made by such Person calculated by applying a fixed or floating rate of
interest on the same notional amount; provided that in any of the foregoing
cases such obligation is entered into for bona fide hedging purposes and in the
ordinary course of business and not for purposes of speculation.
"Investment" by any Person in any other Person means (without duplication):
(a) the acquisition, directly or indirectly, (whether by purchase,
subscription, merger, consolidation or otherwise) by such Person (whether
for cash, property, securities or otherwise) of Capital Stock, bonds,
notes, debentures or other securities, including any options or warrants,
or evidence of Indebtedness of such other Person;
(b) the making by such Person of any deposit with, or advance, loan
or other extension of credit to such other Person;
(c) other than guarantees of Indebtedness to the extent permitted by
Section 4.11, the entering into by such Person of any guarantee of or such
Person becoming liable with respect to Indebtedness or other liability of
such other Person; and
(d) the making of any capital contribution by such Person to any
other Person.
In no event shall the provision of services by such Person in the ordinary
course of business be considered an Investment.
13
ASAT Holdings shall be deemed to make an Investment in an amount equal to
the Fair Market Value of the net assets of any Subsidiary proportionate to ASAT
Holdings' equity interest in that Restricted Subsidiary (or, if neither ASAT
Holdings nor any of its Restricted Subsidiaries has theretofore made an
Investment in such Restricted Subsidiary, in an amount equal to the Investments
being made), at the time that such Restricted Subsidiary is designated an
Unrestricted Subsidiary; provided, however, that upon a redesignation of such
Unrestricted Subsidiary as a Restricted Subsidiary, ASAT Holdings shall be
deemed to continue to have a permanent "Investment" in an Unrestricted
Subsidiary equal to an amount (if positive) equal to (x) ASAT Holdings'
"Investment" in such Subsidiary at the time of such redesignation less (y) the
portion (proportionate to ASAT Holdings' Capital Stock in such Subsidiary) of
the Fair Market Value of the net assets of such Subsidiary at the time of such
redesignation. In determining the amount of any Investment made by transfer of
any property other than cash, such property shall be valued at its Fair Market
Value at the time of such Investment. If ASAT Holdings or any Restricted
Subsidiary (i) sells or otherwise disposes of any Capital Stock of any direct or
indirect Restricted Subsidiary or (ii) any Restricted Subsidiary issues Capital
Stock to any third party, such that, in each case, after giving effect to any
such transaction, such Person is no longer a Restricted Subsidiary, ASAT
Holdings shall be deemed to have made an Investment on the date of any such sale
or disposition equal to the Fair Market Value (as determined in good faith by
ASAT Holdings) of the Capital Stock of such Restricted Subsidiary not sold or
otherwise disposed of (or in the case of an issuance by such Restricted
Subsidiary retained). The Fair Market Value of each Investment shall be measured
at the time made or returned, as applicable.
"Issue Date" means the date of first issuance of the Securities under this
Indenture.
"Judgment Currency" has the meaning given to such term in Section 4.22.
"Legal Defeasance" has the meaning given to such term in Section 8.2.
"Legal Holiday" has the meaning given to such term in Section 13.7.
"Lien" means any mortgage, charge, pledge, lien (statutory or otherwise),
privilege in the nature of security, security interest, hypothecation or other
encumbrance upon or with respect to any property of any kind, real or personal,
movable or immovable, now owned or hereafter acquired.
"Liquidated Damages" means all liquidated damages then owing pursuant to
the Registration Rights Agreement.
"Make-Whole Amount" means, with respect to a Security on any date of
redemption, the greater of: (a) 1% of the principal amount of such Security; or
(b) the excess of (1) the present value at such date of redemption of (A) the
redemption price of such Security at February 1, 2008 (such redemption price
being as set forth in paragraph 5 of the form of Security set forth in Exhibit A
hereof) plus (B) all remaining required interest payments (exclusive of interest
accrued and unpaid to the date of redemption) due on such Security through
February 1, 2008, computed using a discount rate equal to the Reinvestment Rate,
over (2) the then outstanding principal amount of such Security. Any reference
to "premium" contained herein shall be deemed to include a reference to the
Make-Whole Amount.
"Material Facility" means the principal manufacturing and test facilities
of ASAT Holdings and its Restricted Subsidiaries from time to time, including
(without limitation) the facilities located at 000 Xxxxxx Xxxx, Xxxxx Xxx, X.X.,
Xxxx Xxxx and the facilities located at Zhenan Technology and Xxxxxxxx Xxxx,
Xxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxx.
"Xxxxx'x" means Xxxxx'x Investors Services, Inc. and its successors.
14
"Net Cash Proceeds" means the aggregate amount of cash or Cash Equivalents
actually received (i) by ASAT Holdings in the case of an issuance or sale of
Qualified Capital Stock of ASAT Holdings (including upon any exercise, exchange
or conversion of securities (including options, warrants, rights and convertible
or exchangeable debt) of ASAT Holdings that were issued for cash on or after the
Issue Date), (ii) by ASAT Holdings and its Restricted Subsidiaries in respect of
an Asset Sale or any Event of Loss relating to a Material Facility (other than
any business interruption insurance), and (iii) by ASAT Holdings without
duplication of (i) in the case of an issuance or sale of convertible or
exchangeable Indebtedness to which Section 4.3(3)(d) applies upon such issuance
or sale less, in each case, to the extent applicable,
(a) all reasonable and customary payments, fees, commissions and
expenses (including, without limitation, all legal, title and recording
expenses, the fees and expenses of legal counsel and investment banking
fees and expenses, sales commissions and relocation fees and expenses)
incurred in connection with such transaction and, in the case of an Asset
Sale only, less the amount (estimated reasonably and in good faith by ASAT
Holdings) of income, franchise, sales and other applicable taxes required
to be paid by ASAT Holdings or any of its Restricted Subsidiaries in
connection with such Asset Sale in the taxable year that such sale is
consummated or in the immediately succeeding taxable year, the computation
of which shall take into account the reduction in tax liability resulting
from any available operating losses and net operating loss carryovers, tax
credits and tax credit carryforwards, and similar tax attributes; and
(b) in the case of an Asset Sale only, any reserve for adjustment in
respect of the sale price of such asset or assets established in accordance
with GAAP.
"Net Tangible Assets" means, as of any date of determination, the sum of
the amounts that would appear on a Consolidated balance sheet of ASAT Holdings
and its Consolidated Restricted Subsidiaries as the total assets (less
accumulated depreciation and amortization, allowances for doubtful receivables,
other applicable reserves and other properly deductible items) after giving
effect to purchase accounting and after deducting therefrom, Current Liabilities
and, to the extent otherwise included in the determination of Net Tangible
Assets, the amounts of (without duplication):
(a) the excess of cost over fair market value of assets or businesses
acquired;
(b) unamortized debt discount and expenses and other unamortized
deferred charges, goodwill, patents, trademarks, service marks, trade
names, copyrights, licenses, organization, research and developmental
expenses and other intangible items;
(c) minority interests in Consolidated Restricted Subsidiaries held
by Persons other than ASAT Holdings or any Restricted Subsidiary;
(d) treasury stock;
(e) cash or securities set aside and held in a sinking or other
analogous fund established for the purpose of redemption or other
retirement of Capital Stock to the extent such obligation is not reflected
in Current Liabilities; and
(f) Investments in and assets of Unrestricted Subsidiaries.
For the purposes of calculating Net Tangible Assets in connection with
Section 4.11 only:
(i) any advances (which shall include trade balances in the ordinary
course of business made by the Company or any Guarantor (if any) to
any of their respective Subsidiaries or their respective holding
companies or their respective holding companies' Subsidiaries (if
any)); or
15
(ii) any investment by the Company or any Guarantor (if any) in the shares
of their respective Subsidiaries or their respective holding
companies' Subsidiaries (if any).
shall not be included in the amount of Net Tangible Assets unless the company to
or in which such advance or investment is made is a Guarantor or the Company and
becomes or is party to this Indenture.
"Non-Guarantor" means each of ASAT Holdings and each of ASAT Holdings'
present and future Subsidiaries (other than the Company) if at the relevant time
it is not a Guarantor. Non-Guarantors shall from time to time include any
Subsidiary then designated as a Designated Non-Guarantor Subsidiary. As of the
Issue Date, the Designated Non-Guarantors are: ASAT, S.A., ASAT (Cayman)
Limited, ASAT (Finance) LLC, ASAT GmbH, ASAT Korea Limited, ASAT (S) Pte Ltd.,
Newhaven Holdings Limited, RBR Trading Holding (Curacao) N.V. and R.B.R. Trading
Holding B.V.
"Non-Recourse" means
(a) that none of ASAT Holdings or any Restricted Subsidiary
(1) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute
Indebtedness),
(2) is directly or indirectly liable (as a guarantor or
otherwise), or
(3) constitutes the lender, and
(b) that no default with respect to which (including any rights that
the holders thereof may have to take enforcement action against an
Unrestricted Subsidiary) would permit (upon notice, lapse of time or both)
any holder of any other Indebtedness of ASAT Holdings or any of its
Restricted Subsidiaries to declare a default on such other Indebtedness or
cause the payment thereof to be accelerated or payable prior to its stated
maturity.
"Obligation" means any principal, premium or interest payment, or monetary
penalty, or damages, due by the Company or any Guarantor under the terms of the
Securities, the Guarantees or this Indenture, including any Additional Amounts
and any Liquidated Damages due pursuant to the terms of the Registration Rights
Agreement.
"Offering Memorandum" means the offering memorandum related to the offering
of the Initial Securities, dated January 16, 2004.
"Officer" means, with respect to the Company or any Guarantor, the Chief
Executive Officer, the President, any Vice President, the Chief Financial
Officer, the Treasurer, the Controller, a Director, the Secretary or the Manager
of the Company or such Guarantor.
"Officers' Certificate" means, (a) with respect to the Company, a
certificate signed by two Officers or by an Officer and an Assistant Secretary
of the Company or (b) with respect to a Guarantor, a certificate signed by one
Officer, and in each case otherwise complying with the requirements of Sections
13.4 and 13.5.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee complying with the requirements of Sections
13.4 and 13.5.
"Paying Agent" has the meaning given to such term in Section 2.3.
"Payment Default" has the meaning given to such term in Section 6.1.
16
"Permitted Indebtedness" means that:
(a) ASAT Holdings and the Guarantors may incur Indebtedness evidenced
by the Securities and the Guarantees issued pursuant to this Indenture up
to the amounts being issued on the original Issue Date and, in exchange
therefore, may incur Indebtedness evidenced by the Exchange Securities and
Exchange Guarantees as set forth in the Registration Rights Agreement;
(b) ASAT Holdings and the Restricted Subsidiaries may incur
Refinancing Indebtedness with respect to any Indebtedness (including
Disqualified Capital Stock), described in clause (a), (f) (other than the
Senior Notes due 2006 and the guarantees related thereto) or (g) of this
definition or pursuant to Section 4.11(3)(a) or (b) or the Debt Incurrence
Ratio test described in Section 4.11(2) or which was refinanced pursuant to
this clause (b);
(c) The Company or any Guarantor may incur Indebtedness owed to any
other Guarantor or the Company, as the case may be; provided, that such
Indebtedness shall be expressly subordinated to the prior payment in full
in cash of all obligations, as the case may be, pursuant to this Indenture,
the Securities and the Guarantees and, that any event that causes such
other Guarantor no longer to be a Guarantor (including by designation to be
an Unrestricted Subsidiary) shall be deemed to be a new incurrence subject
to Section 4.11;
(d) ASAT Holdings or a Restricted Subsidiary may incur Interest Swap
and Hedging Obligations;
(e) ASAT Holdings or a Restricted Subsidiary may incur Indebtedness
in connection with one or more bankers acceptances, standby letters of
credit or performance or surety bonds, completion guarantees, security
deposits or pursuant to self-insurance obligations, provided that in each
case, such Indebtedness is incurred on customary terms in the ordinary
course of business and not in connection with the borrowing of money;
(f) Existing Indebtedness (other than pursuant to clause (a) hereof),
including without limitation, the Senior Notes due 2006 and the guarantees
related thereto; provided, that such Senior Notes due 2006 shall be repaid
within 45 days following the Issue Date;
(g) Indebtedness of a Restricted Subsidiary outstanding on the date
on which such Restricted Subsidiary was acquired by ASAT Holdings or any
Restricted Subsidiary or otherwise became a Restricted Subsidiary (other
than Indebtedness incurred, in contemplation of, or as consideration for,
or to provide all or any portion of the funds or credit support utilized to
consummate, the transaction or series of transactions pursuant to which
such Restricted Subsidiary became a Subsidiary of ASAT Holdings or was
otherwise acquired by ASAT Holdings or any Restricted Subsidiary), provided
the aggregate principal amount (or accreted value, as applicable) of all
such Indebtedness incurred pursuant to this clause (g) at any time
outstanding shall not exceed $15 million;
(h) Indebtedness of ASAT Holdings or any Restricted Subsidiary
arising from the honoring by a bank or other financial institution of a
check, draft or similar instrument inadvertently drawn against insufficient
funds in the ordinary course of business; provided, however, that such
Indebtedness is extinguished within five Business Days of incurrence;
(i) Indebtedness of ASAT Holdings represented by deferred payment
obligations of ASAT Holdings issued to any directors, employees or officers
of ASAT Holdings or a Restricted Subsidiary in connection with the
redemption or purchase of Capital Stock that, by its terms, is subordinated
to the Securities, is not secured by any of ASAT Holdings or its Restricted
Subsidiaries' assets and does not require cash payments prior to the Stated
Maturity of the Securities, and Refinancing Indebtedness in respect
thereof, in an aggregate principal amount which, when added together with
the amount of Indebtedness incurred pursuant to applicable law and this
clause (i) (and all Refinancing Indebtedness in respect thereof) and then
outstanding, does not exceed $1 million; and
17
(j) Indebtedness arising from agreements of ASAT Holdings 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 or assets of
ASAT Holdings or a Restricted Subsidiary, other than guarantees of or
otherwise becoming liable for Indebtedness incurred by any Person acquiring
all or any portion of such business, assets or Restricted Subsidiary for
the purpose of financing such acquisition; provided that the maximum
assumable liability in respect of all such Indebtedness shall at no time
exceed the gross proceeds actually received by ASAT Holdings and its
Restricted Subsidiaries in connection with such disposition.
"Permitted Investment" means:
(a) Investments in any of the Securities and Guarantees thereof and
the Exchange Securities and Exchange Guarantees as set forth in the
Registration Rights Agreement;
(b) Investments in Cash Equivalents;
(c) Investments in intercompany Indebtedness to the extent permitted
under clause (c) of the definition of "Permitted Indebtedness";
(d) Investment of any Guarantor or the Company in any Guarantor or
the Company or any Investment by any Guarantor, or the Company in a Person
in a Related Business if as a result of such Investment such Person
immediately becomes a Guarantor or such Person is immediately merged with
or consolidated into a Guarantor or transfers or conveys all or
substantially all of its assets to a Guarantor in accordance with the terms
of this Indenture;
(e) other Investments in any Person or Persons, provided, that after
giving pro forma effect to each such Investment, the aggregate amount of
all such Investments made on and after the Issue Date pursuant to this
clause (e) that are outstanding (after deducting any such Investments that
are returned to the Company or a Guarantor that made such prior Investment,
without restriction, in cash on or prior to the date of any such
calculation, but only up to the amount of the Investment made under this
clause (e) in such Person) at any time does not in the aggregate exceed
$10.0 million (measured by the value attributed to the Investment at the
time made or returned, as applicable);
(f) receivables, endorsements or deposits for collections owing to
ASAT Holdings or a Restricted Subsidiary, if created or acquired in the
ordinary course of business and payable or dischargeable in accordance with
customary trade terms (and Investments obtained in exchange for or
settlement of such accounts receivable in the ordinary course of business
for which ASAT Holdings or a Restricted Subsidiary has determined that
collection is not likely); provided, however, that such trade terms may
include such concessionary trade terms as ASAT Holdings or such Restricted
Subsidiary deem reasonable under the circumstances;
(g) (i) any acquisition of property solely in exchange for the
issuance of Capital Stock (other than Disqualified Capital Stock) of ASAT
Holdings or (ii) the license or other transfer on a non-exclusive basis of
intellectual property or know-how of ASAT Holdings or its Restricted
Subsidiaries, in the ordinary course of business;
18
(h) customary loans or advances to employees, directors and officers
of such Person for commission, travel, entertainment, moving, payroll,
relocation and other similar advances, in each case, made in the ordinary
course of business;
(i) any Investment in settlement of obligations or pursuant to a plan
of reorganization or similar arrangement upon the bankruptcy or insolvency
of any trade creditor or customer;
(j) Investments in any Person to the extent such Investment
represents the non-cash portion of the consideration received in connection
with an Asset Sale consummated in compliance with Section 4.14;
(k) Interest Swap and Hedging Obligations permitted under Section
4.11;
(l) Investments existing as of the Issue Date or an Investment
consisting of any extension, modification or renewal of any Investment
existing as of the Issue Date (excluding any such extension, modification
or renewal involving additional consideration unless it is a result of the
accrual or accretion of interest or original issue discount or
payment-in-kind pursuant to the terms, as of the Issue Date, of the
original Investment so extended, modified or renewed);
(m) loans or advances made to customers in connection with the
purchase price of goods or services in the ordinary course of business that
are recorded as accounts receivable, prepaid expense or deposits on the
balance sheet of such Person;
(n) prepaid expenses and negotiable instruments held for collection
in the ordinary course of business;
(o) lease, utility and workers' compensation, performance and other
similar deposits arising in the ordinary course of business; and
(p) Investments in any Non-Guarantor Restricted Subsidiary as long as
ASAT Holdings is in compliance with Article XI immediately following such
Investment.
"Permitted Lien" means:
(a) Liens existing on the Issue Date;
(b) (i) Liens on the property of a Person existing at the time such
Person becomes a Restricted Subsidiary or is merged with or consolidated
into a Restricted Subsidiary or Liens on property incurred in connection
with an acquisition (including an acquisition of assets) merger or
consolidation, provided, that such Liens were in existence prior to the
date of such acquisition, merger or consolidation, were not incurred in
contemplation of, or in connection with, such acquisition, merger or
consolidation and do not extend to any other assets; and (ii) any
extension, renewal, replacement or other modification of such Liens,
provided that any such extension, renewal, replacement or other
modification shall not be materially more restrictive than the Lien so
extended, renewed, replaced or modified and shall not extend to any
additional property or assets or secure any additional Indebtedness;
(c) Liens arising from Purchase Money Indebtedness and Capitalized
Lease Obligations permitted to be incurred pursuant to Section 4.11(3)(a)
provided such Liens relate solely to the property which is subject to such
Purchase Money Indebtedness or Capitalized Lease Obligations;
19
(d) Liens securing Refinancing Indebtedness incurred to Refinance any
Indebtedness that was previously so secured in accordance with this
Indenture, provided that the Indebtedness secured constitutes Refinancing
Indebtedness and the Lien is not extended to any additional assets or
property that would not have been security for the Indebtedness refinanced;
(e) Liens securing Indebtedness incurred under one or more Credit
Agreements in accordance with the terms of Section 4.11(3)(c);
(f) Liens securing the Securities and the Guarantees and the Exchange
Securities and Exchange Guarantees;
(g) Liens imposed by law for taxes, assessments, customs duties and
other governmental charges or levies (including in connection with the
importation of goods) on claims that are not yet due or are being
diligently contested in good faith by appropriate proceedings;
(h) Liens imposed by law or arising by operation of law, including,
without limitation, carriers', warehousemen's, mechanics', materialmen's,
repairmen's, landlord's, mailmen's, supplier's, vendor's or other like
Liens or Liens for workers' and crews' wages and other similar Liens
imposed by law, in each case, arising in the ordinary course of business
and securing obligations that are not overdue by more than 60 days or are
being diligently contested in good faith by appropriate proceedings;
(i) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(j) pledges and deposits to secure the performance of bids, trade
contracts, leases, rent, statutory or regulatory obligations, surety,
return-of-money and appeal bonds, performance bonds and other obligations
of a like nature, in each case incurred in a manner consistent with
industry practice and in the ordinary course of business;
(k) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that are of a nature generally existing with respect to
properties of a similar character and do not secure any monetary
obligations;
(l) judgment Liens not giving rise to a Default or Event of Default
so long as each such Lien is adequately bonded and any appropriate legal
proceedings that may have been initiated for the review of such judgment,
decree or order are being diligently contested in good faith and not have
been finally terminated or the period within which such proceedings may be
initiated shall not have expired;
(m) Liens securing obligations under Interest Swap and Hedging
Obligations permitted to be incurred by Section 4.11;
(n) Liens securing customary reimbursement obligations with respect
to commercial bankers acceptances, performance or surety bonds, completion
guarantees, security deposits, letters of credit, standby letters of credit
or similar instruments entered into in the ordinary course of business,
that encumber cash, documents and other property relating to such letters
of credit and proceeds thereof;
(o) Liens arising under consignment or similar arrangements for the
sale of goods in the ordinary course of business;
20
(p) Liens incurred in the ordinary course of business upon specific
items of inventory or other goods (and proceeds therefrom) securing such
Person's obligations in respect of banker's acceptances issued or credited
for the account of such Person to facilitate the purchase, shipment or
storage of such inventory or goods; and
(q) Liens securing other Indebtedness permitted under this Indenture
not exceeding $2.0 million at any time outstanding.
"Person" or "person" means any corporation, individual, limited liability
company, joint stock company, joint venture, partnership, limited liability
company, unincorporated association, governmental regulatory entity, country,
state or political subdivision thereof, trust, municipality or other entity.
"Preferred Stock" means any Capital Stock of any class or classes of a
Person (however designated) which is preferred as to payments of dividends, or
as to distributions upon any liquidation or dissolution, over Capital Stock of
any other class of such Person.
"principal" of any Indebtedness means the principal of such Indebtedness.
"Pro Forma" or "pro forma" shall have the meaning set forth in Article 11
of Regulation S-X of the Securities Act, unless otherwise specifically stated
herein.
"property" means any right or interest in or to property or assets of any
kind whatsoever, whether real, personal or mixed and whether tangible,
intangible, contingent, direct or indirect.
"Purchase Money Indebtedness" of any Person means (a) any Indebtedness of
such Person to any seller or other Person incurred to finance all or part of the
acquisition, the lease, construction, installation, additions or improvement of
or to any machinery or equipment which is used or useful in a Related Business
of such Person, or (b) any Indebtedness consisting of the deferred purchase
price of property, conditional sale obligations, obligations under any title
retention agreement and other purchase money obligations, in each case where the
maturity of such Indebtedness does not exceed the anticipated useful life of the
property being financed; provided however, in each case that such Indebtedness
is incurred within 90 days with such acquisition, construction, installation,
additions or improvement of such property by ASAT Holdings or such Restricted
Subsidiary and is secured only by the assets so financed (and any replacement
parts with respect thereto).
"Qualified Capital Stock" means any Capital Stock of ASAT Holdings that is
not Disqualified Capital Stock.
"Record Date" means a Record Date specified in the Securities whether or
not such Record Date is a Business Day, or, if applicable, as specified in
Section 2.12.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption pursuant to Article III of this
Indenture and Paragraph 5 in the form of Security attached hereto as Exhibit A.
"Redemption Price," when used with respect to any Security to be redeemed,
means the redemption price for such redemption pursuant to Article III of this
Indenture and Paragraph 5 in the form of Security attached hereto as Exhibit A,
which shall include, without duplication, in each case, accrued and unpaid
interest and Liquidated Damages and Additional Amounts, if any, to, but not
including, the Redemption Date.
"Reference Period" with regard to any Person means the four full fiscal
quarters for which financial statements are available (or such lesser period
during which such Person has been in existence) ended immediately preceding any
date upon which any determination is to be made pursuant to the terms of the
Securities or this Indenture.
21
"Refinancing Indebtedness" means Indebtedness (including Disqualified
Capital Stock) issued in exchange for, or the proceeds from the issuance and
sale of which are used Substantially Concurrently to pay, prepay, replace,
repay, redeem, defease, refund, refinance, discharge or otherwise retire for
value, in whole or in part, any Indebtedness (including Disqualified Capital
Stock but excluding the Senior Notes due 2006) or constituting an amendment,
modification or supplement to, or a deferral or renewal of any Indebtedness
(including Disqualified Capital Stock but excluding the Senior Notes due 2006)
(any of the foregoing, a "Refinancing") in a principal amount or, in the case of
Disqualified Capital Stock, liquidation preference, not to exceed (after
deduction of reasonable and customary fees and expenses incurred in connection
with the Refinancing plus the amount of any premium paid in connection with such
Refinancing in accordance with the terms of the documents governing the
Indebtedness refinanced without giving effect to any modification thereof made
in connection with or in contemplation of such refinancing) the lesser of:
(a) the aggregate principal amount or, in the case of Disqualified
Capital Stock, liquidation preference, of the Indebtedness (including
Disqualified Capital Stock) so Refinanced and
(b) if such Indebtedness being Refinanced was issued with an original
issue discount, the aggregate accreted value thereof (as determined in
accordance with GAAP) at the time of such Refinancing;
provided, that
(i) such Refinancing Indebtedness shall (x) not have an Average Life
shorter than the Indebtedness (including Disqualified Capital Stock) to be
so Refinanced at the time of such Refinancing and (y) If the Indebtedness
(including Disqualified Capital Stock) is subordinated in right of payment
to the Securities, such Refinancing Indebtedness is subordinate in right of
payments to the Securities at least to the same extent as the Indebtedness
being Refinanced;
(ii) such Refinancing Indebtedness (including Disqualified Capital
Stock) shall have Stated Maturity no earlier than the Stated Maturity of
the Indebtedness to be so Refinanced;
provided, however, that Refinancing Indebtedness shall not include:
(A) Indebtedness of a Restricted Subsidiary of ASAT Holdings
that Refinances Indebtedness of ASAT Holdings or a Restricted
Subsidiary which is a direct or indirect shareholder of such
Restricted Subsidiary; or
(B) Indebtedness of the Company or a Guarantor that refinances
Indebtedness of a Non-Guarantor, an Unrestricted Subsidiary or any
other Person.
"Registrar" has the meaning given to such term in Section 2.3.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of the Issue Date, by and among the Company and the other parties named
on the signature pages thereof, as such agreement may be amended, modified or
supplemented from time to time.
"Reinvestment Rate" means 0.50% plus the arithmetic mean of the yields
under the respective headings "This Week" and "Last Week" published in the
Statistical Release under the caption "Treasury Constant Maturities" for the
applicable maturity (rounded to the nearest month) corresponding to the date on
which the Securities are first redeemable at par. If no maturity exactly
corresponds to such maturity, yields for the two published maturities most
closely corresponding to such maturity shall be calculated pursuant to the
immediately preceding sentence and the Reinvestment Rate shall be interpolated
or extrapolated from such yields on a straight-line basis, rounding in each of
such relevant periods to the nearest month. For the purpose of calculating the
Reinvestment Rate, the most recent Statistical Release published prior to the
date of determination of the Make-Whole Amount shall be used.
22
"Related Business" means the business conducted (or proposed to be
conducted) by ASAT Holdings through ASAT and its Restricted Subsidiaries as of
the Issue Date and any and all businesses that are related, ancillary or
complementary to such business or any reasonable extension thereof.
"Related Person" means any Person who controls, is controlled by or is
under common control with an Excluded Person; provided, that for purposes of
this definition "control" means the beneficial ownership of more than 50% of the
total voting power of a Person normally entitled to vote in the election of
directors, managers, partners or trustees, as applicable of a Person.
"Restricted Investment" means, in one or a series of related transactions,
any Investment, other than Permitted Investments.
"Restricted Payment" means, with respect to any Person:
(a) the declaration or payment of any dividend or other distribution
in respect of Capital Stock of ASAT Holdings or its Restricted
Subsidiaries,
(b) any payment on account of the purchase, repurchase, redemption,
defeasance or other acquisition, payment, prepayment, replacement,
discharge or retirement for value of Capital Stock of ASAT Holdings or a
Restricted Subsidiary, other than such Capital Stock held by ASAT Holdings
or a Restricted Subsidiary,
(c) any purchase, repurchase, redemption or other acquisition,
payment, prepayment, replacement, refund, discharge or retirement for value
of, any payment in respect of any amendment, modification, supplement,
deferral or renewal of the terms of or any defeasance of, any Subordinated
Indebtedness of ASAT Holdings or a Restricted Subsidiary, by ASAT Holdings
or a Restricted Subsidiary prior to the scheduled maturity or any scheduled
repayment of principal, or scheduled sinking fund payment, as the case may
be, of such Indebtedness (whether in cash or by transfer of any asset or
securities or obligation (other than the purchase, repurchase, redemption
or other acquisition of such Subordinated Indebtedness purchased in
anticipation of satisfying a sinking fund obligation, principal installment
or final maturity, in each case within one year of the date of purchase,
repurchase, redemption or other acquisition provided that at the time
thereof no Default or Event of Default has occurred and is continuing)),
and
(d) any Restricted Investment by ASAT Holdings or a Restricted
Subsidiary.
provided, however, that the term "Restricted Payment" does not include any
dividend, distribution or other payment that is made solely to ASAT Holdings or
a Restricted Subsidiary (and, if such Restricted Subsidiary is not a
Wholly-Owned Restricted Subsidiary, to the other shareholders of such Restricted
Subsidiary on a pro rata basis or on a basis that results in the receipt by ASAT
Holdings or a Restricted Subsidiary of dividends or distributions of greater
value than it would receive on a pro rata basis).
"Restricted Subsidiary" means the Company and any Subsidiary of ASAT
Holdings that is not an Unrestricted Subsidiary. As of the Issue Date, all the
Subsidiaries of ASAT Holdings are Restricted Subsidiaries.
23
"S&P" means Standard & Poor's Corporation and its successors.
"Sale and Leaseback Transaction" means any direct or indirect arrangement
relating to property now owned or hereafter acquired whereby ASAT Holdings or a
Restricted Subsidiary transfers such property to another Person and ASAT
Holdings or a Restricted Subsidiary leases or otherwise takes possession of such
property from such Person (excluding licenses of intellectual property and
know-how). Neither a transaction solely between the Company and any Guarantor or
between Guarantors shall be considered a Sale and Leaseback Transaction.
"SEC" means the Securities and Exchange Commission of the United States of
America.
"Securities" means, collectively, the Initial Securities and, when and if
issued as provided in the Registration Rights Agreement, the Exchange
Securities.
"Securities Act" means the Securities Act of 1933, as amended, of the
United States of America, and the rules and regulations of the SEC promulgated
thereunder.
"Securities Custodian" means the Trustee, as custodian with respect to the
Securities in global form, or any successor entity thereto.
"Securityholder" or "Holder" means the Person in whose name a Security is
registered on the Registrar's books.
"Senior Notes due 2006" means the 12 1/2% Senior Notes due 2006 issued by
ASAT (Finance) LLC on October 26, 1999 and the exchange notes issued in exchange
therefor, to the extent outstanding on the Issue Date.
"Senior Notes due 2006 Indenture" means the Indenture by and among ASAT
(Finance) LLC, ASAT Holdings, certain subsidiaries of ASAT Holdings a party
thereto and U.S. Bank National Association (as successor to JPMorgan Chase
Bank), as trustee, dated October 29, 1999, relating to the issuance of the
Senior Notes due 2006.
"SGX" means the Singapore Exchange Securities Trading Limited.
"Significant Entity" has the meaning given to such term in Section 5.1.
"Significant Subsidiary" shall have the meaning provided under Regulation
S-X of the Securities Act, as in effect on the Issue Date. In no event shall an
Unrestricted Subsidiary be considered a Significant Subsidiary.
"Special Record Date" for payment of any Defaulted Interest means a date
fixed by the Trustee pursuant to Section 2.12.
"Stated Maturity" when used with respect to any Security, means February 1,
2011 and with respect to any other security (not being common stock) means the
date specified in such security (not being common stock) as the fixed date on
which the final installment of principal of such security (not being common
stock) is due and payable, including pursuant to any mandatory redemption or
repurchase provision (but excluding any change of control and asset sale
provisions at the option of the holder thereof).
"Statistical Release" means the statistical release designated "H.15(519)"
or any successor publication which is published weekly by the Federal Reserve
System and which establishes yields on actively traded U.S. government
securities adjusted to constant maturities or, if such statistical release is
not published at the time of any determination under this Indenture, then such
other reasonably comparable index which shall be designated by ASAT Holdings.
24
"Subordinated Indebtedness" means Indebtedness of the Company or a
Guarantor (whether outstanding on the Issue Date or incurred thereafter) that is
subordinated or junior in right of payment by its terms or the terms of any
document or instrument relating thereto to the Securities or the Guarantees, as
applicable, in any respect or pursuant to a written agreement to that effect. No
Indebtedness of the Company or a Guarantor shall be deemed to be subordinated in
right of payment to any other Indebtedness of the Company or such Guarantor
solely by virtue of any Liens, Guarantees, maturity of payments or structural
subordination.
"Subsidiary" with respect to any Person, means any corporation, company
(including any limited liability company), association, partnership,
wholly-owned foreign enterprise, joint venture or other business entity of which
a majority of the total voting power of the Voting Equity Interests is at the
time owned or controlled, directly or indirectly, by:
(a) such Person;
(b) such Person and one or more Subsidiaries of such Person;
(c) a partnership in which such Person or a Subsidiary of such Person
is, at the time, a general partner or in which such Person, directly or
indirectly, at the date of determination thereof has at least a majority
ownership interest; or
(d) one or more Subsidiaries of such Person.
"Substantially Concurrent" means with respect to two events, the second
event shall occur no later than 35 days after the first event; provided,
however, that if the second event requires a call notice, redemption notice or
other similar notification to be issued or delivered, such notice shall be
issued or delivered no later than 5 days after the first event.
"Super Majority" has the meaning given to such term in Section 6.2.
"TIA" means the Trust Indenture Act of 1939, as amended, (15 U.S. Code
Sections 77aaa-77bbbb) as in effect from time to time.
"Transfer Restricted Securities" means Securities that bear or are required
to bear the legend set forth in Section 2.6(7)(a).
"Trust Officer" means any officer within the corporate trust department of
the Trustee, including any vice president, assistant vice president, assistant
secretary, assistant treasurer, trust officer or any other officer of the
Trustee who customarily performs functions similar to those performed by the
Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of such person's knowledge of and
familiarity with the particular subject and who shall have direct responsibility
for the administration of this Indenture.
"Trustee" means the party named as such in this Indenture until a successor
replaces it in accordance with the provisions of this Indenture and thereafter
means such successor.
"Unrestricted Subsidiary" means any Subsidiary of ASAT Holdings that does
not own any Capital Stock of, or own or hold any Lien on any property of, ASAT
Holdings or any Restricted Subsidiary and that, at the time of determination,
shall be an Unrestricted Subsidiary (as designated by the Board of Directors of
ASAT Holdings); provided, that such Subsidiary at the time of such designation:
25
(a) has no Indebtedness other than Non-Recourse Indebtedness;
(b) is not party to any agreement, contract, arrangement or
understanding with ASAT Holdings or any Restricted Subsidiary unless the
terms of any such agreement, contract, arrangement or understanding are no
less favorable to ASAT Holdings or such Restricted Subsidiary than those
that might be obtained at the time from Persons who are not Affiliates of
ASAT Holdings or the Restricted Subsidiaries;
(c) is a Person with respect to which neither ASAT Holdings nor any
of its Restricted Subsidiaries has any direct or indirect obligation (x) to
subscribe for additional Capital Stock or (y) to maintain or preserve such
Person's financial condition or to cause such Person to achieve any
specified levels of operating results; and
(d) has not guaranteed or otherwise directly or indirectly provided
credit support for any Indebtedness of ASAT Holdings or any of its
Restricted Subsidiaries;
provided, further, that none of the Subsidiaries on the Issue Date will be
permitted to be designated as an Unrestricted Subsidiary.
Subject to the foregoing, the Board of Directors of ASAT Holdings may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided,
that (1) no Default or Event of Default is existing or will occur as a
consequence thereof and (2) such designation shall be deemed to be an incurrence
by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if such Indebtedness
could be incurred pursuant to Section 4.11, calculated on a pro forma basis as
if such designation had occurred at the beginning of the Reference Period. Each
such designation shall be evidenced by filing with the Trustee a certified copy
of the resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing conditions.
"U.S. Dollar Equivalent" means with respect to any monetary amount in a
currency other than U.S. dollars, at any time for determination thereof, the
amount of U.S. dollars obtained by converting such foreign currency involved in
such 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 such determination.
Except as described in Section 4.11, whenever it is necessary to determine
whether ASAT Holdings or a Restricted Subsidiary has complied with any covenant
in this Indenture or a Default has occurred and an amount is expected in a
currency other than U.S. dollars, such amount will be treated as the U.S. Dollar
Equivalent determined as of the date such amount is initially determined in such
currency.
"U.S. Government Obligations" means direct non-callable obligations of, or
non-callable obligations guaranteed by, the United States of America for the
payment of which obligation or guarantee the full faith and credit of the United
States of America is pledged or certificates representing an ownership interest
in such obligations.
"Voting Equity Interests" means Capital Stock or other interests which at
the time are entitled (or at the election of the holder thereof can be converted
into Capital Stock or other interests which are entitled) to vote in the
election of, as applicable, directors, members or partners generally.
"Wholly-Owned Restricted Subsidiary" means a Wholly-Owned Subsidiary that
is a Restricted Subsidiary.
26
"Wholly-Owned Subsidiary" means at any time a Subsidiary, all the Capital
Stock of which at such time (other than directors' qualifying shares or other
similar shares required by applicable law to be owed by a third person) are
owned, directly or indirectly, by ASAT Holdings or one or more Wholly-Owned
Subsidiaries.
Section 1.2 Incorporation by Reference of TIA.
---------------------------------
Whenever this Indenture refers to a provision of the TIA, such 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:
"Commission" means the SEC.
"indenture securities" means the Securities.
"obligor" on the indenture securities means the Company, each Guarantor and
any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them thereby.
Section 1.3 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 GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision;
(7) references to Sections or Articles means reference to such
Section or Article in this Indenture, unless stated otherwise; and
(8) references to sections of or rules under the Securities Act shall
be deemed to include substitute, replacement or successor sections or rules
adopted by the SEC from time to time.
ARTICLE II
THE SECURITIES
Section 2.1 Form and Dating.
---------------
27
(1) The Securities shall be substantially in the form of Exhibit A
hereto. The Securities may have notations, legends or endorsements required by
law, stock exchange rule or usage. The Company shall approve the form of the
Securities and any notation, legend or endorsement on them. Any such notations,
legends or endorsements not contained in the form of Security attached as
Exhibit A hereto shall be delivered in writing to the Trustee. Each Security
shall be dated the date of its authentication.
(2) The terms and provisions contained in the forms of Securities
shall constitute, and are hereby expressly made, a part of this Indenture and,
to the extent applicable, the Company, each Guarantor 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
Security conflicts with the express provisions of this Indenture, the provisions
of this Indenture shall govern and be controlling.
Section 2.2 Execution and Authentication.
----------------------------
(1) Two Officers shall sign, or one Officer shall sign and one
Officer shall attest to, the Security for the Company by manual or facsimile
signature.
(2) If an Officer whose signature is on a Security was an Officer at
the time of such execution but no longer holds that office at the time the
Trustee authenticates the Security, the Security shall be valid nevertheless and
the Company shall nevertheless be bound by the terms of the Securities and this
Indenture.
(3) A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security but
such signature shall be conclusive evidence that the Security has been
authenticated pursuant to the terms of this Indenture.
(4) The Trustee shall authenticate Initial Securities for original
issue in the aggregate principal amount of up to $150,000,000 and shall
authenticate Exchange Securities for original issue in the aggregate principal
amount of up to $150,000,000, in each case upon a written order of the Company
in the form of an Officers' Certificate; provided that such Exchange Securities
shall be issuable only upon the valid surrender for cancellation of Initial
Securities of a like aggregate principal amount in accordance with the
Registration Rights Agreement or the exchange offer made as contemplated
thereby. The Officers' Certificate shall specify the amount of Securities to be
authenticated and the date on which the Securities are to be authenticated. The
aggregate principal amount of Securities outstanding at any time may not exceed
$150,000,000, except as provided in Section 2.7. Upon the written order of the
Company in the form of an Officers' Certificate, the Trustee shall authenticate
Securities in substitution of Securities originally issued to reflect any name
change of the Company.
(5) The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference 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 the Company, any Affiliate of the Company,
or any of their respective Subsidiaries.
(6) Securities shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiples thereof.
Section 2.3 Registrar and Paying Agent.
--------------------------
(1) The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where Securities may be presented for
registration, transfer or for
28
exchange ("Registrar"), and an office or agency where Securities may be
presented for payment ("Paying Agent"), and where notices and demands to or upon
the Company in respect of the Securities may be served. The Company may act as
Registrar or Paying Agent, except that, for the purposes of Articles III, VIII,
X, and Section 4.14 and as otherwise specified in this Indenture, neither the
Company nor any Affiliate of the Company shall act as Paying Agent. The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may have 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 hereby
appoints the Trustee as Registrar and Paying Agent, and by its acknowledgement
and acceptance on the signature page hereto, the Trustee hereby agrees so to
act.
(2) The Company shall enter into an appropriate written agency
agreement with any Agent (including the Paying Agent) not a party to this
Indenture, which agreement shall implement the provisions of this Indenture that
relate to such Agent, and shall furnish a copy of each such agreement to the
Trustee. The Company shall promptly notify the Trustee in writing of the name
and address of any such Agent. Until the Company notifies the Trustee that it is
maintaining a Registrar or Paying Agent, the Trustee shall act as such.
(3) The Company initially appoints The Depository Trust Company
("DTC"), to act as Depositary with respect to the Global Securities.
(4) The Company initially appoints the Trustee to act as Securities
Custodian with respect to the Global Securities.
(5) Upon the occurrence of an Event of Default described in Section
6.1(4), the Trustee shall, or upon the occurrence of any other Event of Default
by notice to the Company, the Registrar and the Paying Agent, the Trustee may
assume the duties and obligations of the Registrar and the Paying Agent
hereunder, if such Registrar and Paying Agent shall be other than the Trustee.
Section 2.4 Paying Agent to Hold Assets in Trust.
------------------------------------
The Company shall require each Paying Agent other than the Trustee to agree
in writing that each Paying Agent shall hold in trust for the benefit of Holders
or the Trustee all assets held by the Paying Agent for the payment of principal
of, premium, if any, or interest (or Liquidated Damages, if any, or Additional
Amounts, if any) on, the Securities (whether such assets have been distributed
to it by the Company or any other obligor on the Securities), and shall notify
the Trustee in writing of any Default in making any such payment. If either of
the Company or a Subsidiary of the Company acts as Paying Agent, it shall
segregate such assets and hold them as a separate trust fund for the benefit of
the Holders or the Trustee. The Company at any time may require a Paying Agent
to distribute all assets held by it to the Trustee and account for any assets
disbursed and the Trustee may at any time during the continuance of any payment
Default or any Event of Default, upon written request to a Paying Agent, require
such Paying Agent to distribute all assets held by it to the Trustee and to
account for any assets distributed. Upon distribution to the Trustee of all
assets that shall have been delivered by the Company to the Paying Agent, the
Paying Agent (if other than the Company) shall have no further liability for
such assets.
Section 2.5 Securityholder Lists.
--------------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders and shall otherwise comply with TIA Section312(a). If the Trustee or any
Paying Agent is not the Registrar, the Company shall furnish to the Trustee on
or before the third Business Day preceding each Interest Payment Date and at
such other times as the Trustee or any such Paying Agent may request in writing
a list in such form and as of such date as the Trustee or any such Paying Agent
reasonably may require of the names and addresses of Holders and the Company
shall otherwise comply with TIA Section312(a).
29
Section 2.6 Transfer and Exchange.
---------------------
(1) Transfer and Exchange of Definitive Securities. When Definitive
Securities are presented to the Registrar with a request to (1) register the
transfer of such Definitive Securities or (2) exchange such Definitive
Securities for an equal principal amount of Definitive Securities of other
authorized denominations, the Registrar shall register the transfer or make the
exchange as requested if its reasonable requirements for such transaction are
met; provided, however, that the Definitive Securities surrendered for
registration of transfer or exchange:
(a) shall be duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Company and the Registrar,
duly executed by the Holder thereof or such Holder's attorney duly
authorized in writing; and
(b) in the case of Transfer Restricted Securities that are Definitive
Securities, shall be accompanied by the following additional information
and documents, as applicable:
(i) if such Transfer Restricted Security is being delivered to
the Registrar by a Holder for registration in the name of such Holder,
without transfer, a certification from such Holder to that effect (in
substantially the form set forth on the reverse of the Security); or
(ii) if such Transfer Restricted Security is being transferred
to a "qualified institutional buyer" (within the meaning of Rule 144A
promulgated under the Securities Act) that is aware that any sale of
Securities to it will be made in reliance on Rule 144A under the
Securities Act and that is acquiring such Transfer Restricted Security
for its own account or for the account of another such "qualified
institutional buyer," a certification from such Holder to that effect
(in substantially the form set forth on the reverse of the Security);
or
(iii) if such Transfer Restricted Security is being transferred
pursuant to an exemption from registration in accordance with Rule
144, or outside the United States of America in an offshore
transaction in compliance with Rule 904 under the Securities Act, or
pursuant to an effective registration statement under the Securities
Act, a certification from such Holder to that effect (in substantially
the form set forth on the reverse of the Security); or
(iv) if such Transfer Restricted Security is being transferred
in reliance on another exemption from the registration requirements of
the Securities Act and with all applicable securities laws of the
States of the United States of America, a certification from such
Holder to that effect (in substantially the form set forth on the
reverse of the Security) and an opinion of counsel reasonably
acceptable to the Company and to the Registrar, if the Company so
requests, to the effect that such transfer is in compliance with the
Securities Act.
(2) Restrictions on Transfer of a Definitive Security for a
Beneficial Interest in a Global Security. A Definitive Security may not be
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the Trustee of
a Definitive Security, duly endorsed or accompanied by appropriate instruments
of transfer, in form satisfactory to the Trustee, together with:
30
(a) if such Definitive Security is a Transfer Restricted Security,
certification, substantially in the form set forth on the reverse of the
Security, that such Definitive Security is being transferred to a
"qualified institutional buyer" (as defined in Rule 144A under the
Securities Act) in accordance with Rule 144A under the Securities Act; and
(b) whether or not such Definitive Security is a Transfer Restricted
Security, written instructions directing the Trustee to make, or to direct
the Securities Custodian to make, an endorsement on the Global Security to
reflect an increase in the aggregate principal amount of the Securities
represented by the Global Security,
then the Trustee shall cancel such Definitive Security and cause, or direct
the Securities Custodian to cause, in accordance with the standing instructions
and procedures existing between the Depositary and the Securities Custodian, the
aggregate principal amount of Securities represented by the Global Security to
be increased accordingly. If no Global Securities are then outstanding, the
Company shall issue and the Trustee shall authenticate a new Global Security in
the appropriate principal amount.
(3) Transfer and Exchange of Global Securities. The transfer and
exchange of Global Securities or beneficial interests therein shall be effected
through the Depositary, in accordance with this Indenture (including applicable
restrictions on transfer set forth herein, if any) and the procedures of the
Depositary therefor.
(4) Transfer of a Beneficial Interest in a Global Security for a
Definitive Security.
(a) Any Person having a beneficial interest in a Global Security may
upon request exchange such beneficial interest for a Definitive Security.
Upon receipt by the Trustee of written instructions or such other form of
instructions as is customary for the Depositary, from the Depositary or its
nominee on behalf of any Person having a beneficial interest in a Global
Security, and upon receipt by the Trustee of a written instruction or such
other form of instructions as is customary for the Depositary or the Person
designated by the Depositary as having such a beneficial interest in a
Transfer Restricted Security only, the following additional information and
documents (all of which may be submitted by facsimile):
(i) if such beneficial interest is being transferred to the
Person designated by the Depositary as being the beneficial owner, a
certification from the transferor to that effect (in substantially the
form set forth on the reverse of the Security); or
(ii) if such beneficial interest is being transferred to a
"qualified institutional buyer" (within the meaning of Rule 144A
promulgated under the Securities Act), that is aware that any sale of
Securities to it will be made in reliance on Rule 144A under the
Securities Act and that is acquiring such beneficial interest in the
Transfer Restricted Security for its own account or the account of
another such "qualified institutional buyer," a certification to that
effect from the transferor (in substantially the form set forth on the
reverse of the Security); or
(iii) if such beneficial interest is being transferred pursuant
to an exemption from registration in accordance with Rule 144, or
outside the United States of America in an offshore transaction in
compliance with Rule 904 under the Securities Act, or pursuant to an
effective registration statement under the Securities Act, a
certification from the transferor to that effect (in substantially the
form set forth on the reverse of the Security); or
31
(iv) if such beneficial interest is being transferred in
reliance on another exemption from the registration requirements of
the Securities Act and in accordance with all applicable securities
laws of the States of the United States of America, a certification to
that effect from the transferor (in substantially the form set forth
on the reverse of the Security) and an opinion of counsel from the
transferee or transferor reasonably acceptable to the Company and to
the Registrar, if the Company so requests, to the effect that such
transfer is in compliance with the Securities Act,
then the Trustee or the Securities Custodian, at the direction of the
Trustee, will cause, in accordance with the standing instructions and procedures
existing between the Depositary and the Securities Custodian, the aggregate
principal amount of the Global Security to be reduced and, following such
reduction, the Company will execute and, upon receipt of an authentication order
in the form of an Officers' Certificate, the Trustee's authenticating agent will
authenticate and deliver to the transferee a Definitive Security.
(b) Definitive Securities issued in exchange for a beneficial
interest in a Global Security pursuant to this Section 2.6(4) shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Definitive Securities to the persons in whose names such
Securities are so registered.
(5) Restrictions on Transfer and Exchange of Global Securities.
Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in paragraph (6) of this Section 2.6), a Global Security
may not be transferred as a whole except 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.
(6) Authentication of Definitive Securities in Absence of Depositary.
If at any time:
(a) the Depositary for the Securities notifies the Company that the
Depositary is unwilling or unable to continue as Depositary for the Global
Securities and a successor Depositary for the Global Securities is not
appointed by the Company within ninety days after delivery of such notice;
(b) there shall have occurred and be continuing a Default or Event of
Default with respect to the Securities, represented by the Global
Securities; or
(c) the Company, in its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of Definitive Securities under
this Indenture,
then the Company will execute, and the Trustee, upon receipt of an
Officers' Certificate requesting the authentication and delivery of Definitive
Securities, will, or its authenticating agent will, authenticate and deliver
Definitive Securities, in an aggregate principal amount equal to the principal
amount of the Global Securities, in exchange for such Global Securities.
(7) Legends.
(a) Except as permitted by the following subparagraph (c) and except
for the Exchange Securities, each Security certificate evidencing the
Global Securities and the Definitive Securities (and all Securities issued
in exchange therefor or substitution thereof) shall bear a legend in
substantially the following form:
32
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. BY ITS
ACQUISITION OF THIS SECURITY OR 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") OR (B) THAT IT IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT;
(2) AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR
TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), EXCEPT (A) TO THE COMPANY
OR ANY GUARANTOR OR ANY OF THEIR RESPECTIVE SUBSIDIARIES, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO AN OFFSHORE
TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR
(E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSE (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE
REMOVED UPON THE REQUESTS OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE AS TO THE ABOVE RESTRICTIONS.
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 SECURITY IN VIOLATION OF THE FOREGOING
RESTRICTIONS."
(b) For the six months following the Issue Date, each Security that
is listed or quoted on the SGX or a recognized securities exchange (as such
term is defined in the Securities and Futures Act, chapter 289 of
Singapore) will contain a legend substantially to the following effect:
33
FOR SIX MONTHS FOLLOWING JANUARY 26, 2004, WITH RESPECT TO ANY SECURITY
WHICH IS LISTED OR QUOTED ON THE SINGAPORE EXCHANGE SECURITIES TRADING LIMITED
OR A RECOGNIZED SECURITIES EXCHANGE (AS DEFINED IN THE SECURITIES AND FUTURES
ACT, CHAPTER 289 OF SINGAPORE), SUCH SECURITY MAY NOT BE OFFERED OR SOLD OR BE
MADE THE SUBJECT OF AN INVITATION FOR SUBSCRIPTION OR PURCHASE NOR MAY ANY
DOCUMENT OR MATERIAL IN CONNECTION WITH THE OFFER OR SALE, OR INVITATION FOR
SUBSCRIPTION OR PURCHASE, OF SUCH SECURITY BE CIRCULATED OR DISTRIBUTED, WHETHER
DIRECTLY OR INDIRECTLY, TO THE PUBLIC OR ANY MEMBER OF THE PUBLIC IN SINGAPORE
OTHER THAN (A) TO AN INSTITUTIONAL INVESTOR OR OTHER PERSON SPECIFIED IN SECTION
274 OF THE SECURITIES AND FUTURES ACT, CHAPTER 289 OF SINGAPORE (B) TO A
SOPHISTICATED INVESTOR, AND IN ACCORDANCE WITH THE CONDITIONS, SPECIFIED IN
SECTION 275 OF THE SECURITIES AND FUTURES ACT, CHAPTER 289 OF SINGAPORE OR (C)
OTHERWISE PURSUANT TO, AND IN ACCORDANCE WITH THE CONDITIONS OF, ANY OTHER
APPLICABLE PROVISION OF THE SECURITIES AND FUTURES ACT, CHAPTER 289 OF
SINGAPORE.
(c) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a Global
Security) pursuant to Rule 144 under the Act or an effective registration
statement under the Securities Act:
(i) in the case of any Transfer Restricted Security
that is a Definitive Security, the Registrar shall permit
the Holder thereof to exchange such Transfer Restricted
Security for a Definitive Security that does not bear the
legend set forth above in Section 2.6(7)(a) and rescind any
restriction on the transfer of such Transfer Restricted
Security; and
(ii) any such Transfer Restricted Security represented
by a Global Security shall not be subject to the provisions
set forth in Section 2.6(7)(a) (such sales or transfers
being subject only to the provisions of Section 2.6(3) and
Section 2.6(7)(b), to the extent applicable); provided,
however, that with respect to any request for an exchange of
a Transfer Restricted Security that is represented by a
Global Security for a Definitive Security that does not bear
a legend, which request is made in reliance upon Rule 144,
the Holder thereof shall certify in writing to the Registrar
that such request is being made pursuant to Rule 144 (such
certification to be substantially in the form set forth on
the reverse of the Security).
(8) Cancellation and/or Adjustment of Global Security. At such time
as all beneficial interests in a Global Security have either been exchanged for
Definitive Securities, redeemed, repurchased or cancelled, such Global Security
shall be returned to or retained and cancelled by the Trustee. At any time prior
to such cancellation, if any beneficial interest in a Global Security is
exchanged for Definitive Securities, redeemed, repurchased or cancelled, the
principal amount of Securities represented by such Global Security shall be
reduced and an endorsement shall be made on such Global Security, by the Trustee
or the Securities Custodian, at the direction of the Trustee, to reflect such
reduction.
(9) Obligations with respect to Transfers and Exchanges of Definitive
Securities.
(a) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee or any authenticating agent of the Trustee
shall authenticate Definitive Securities and Global Securities at the
Registrar's request.
(b) No service charge shall be made to a Holder for any registration
of transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar governmental
charge payable in connection therewith (other than any such transfer taxes,
assessments, or similar governmental charge payable upon exchanges or
transfers pursuant to Section 2.2(4), 2.10, 3.7, 4.14(9)(h), 9.5, or 10.1).
34
(c) The Registrar shall not be required to register the transfer of
or exchange of (i) any Definitive Security selected for redemption in whole
or in part pursuant to Article III, except the unredeemed portion of any
Definitive Security being redeemed in part, or (ii) any Security for a
period beginning 15 Business Days before the mailing of a notice of an
offer to repurchase pursuant to Article X or Section 4.14 or redemption of
Securities pursuant to Article III and ending at the close of business on
the day of such mailing.
(d) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers between
or among Depositary participants or beneficial owners of interests in any
Global Security) other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and to do so
if and when expressly required by the terms of, this Indenture, and to
examine the same to determine substantial compliance as to form with the
express requirements thereof.
Section 2.7 Replacement Securities.
----------------------
If a mutilated Security is surrendered to the Trustee or if the Holder of a
Security claims and submits an affidavit or other evidence satisfactory to the
Trustee, to the Trustee to the effect that the Security has been lost, destroyed
or wrongfully taken, the Company shall issue and the Trustee shall authenticate
a replacement Security if the Trustee's requirements are met. If required by the
Trustee or the Company, such Holder must provide an indemnity bond or other
indemnity, sufficient in the judgment of both the Company and the Trustee, to
protect the Company, the Trustee or any Agent from any loss which any of them
may suffer if a Security is replaced. The Company may charge such Holder for its
reasonable, out-of-pocket expenses in replacing a Security.
Every replacement Security is an additional obligation of the Company.
Section 2.8 Outstanding Securities.
----------------------
Securities outstanding at any time are all the Securities that have been
authenticated by the Trustee (including any Security represented by a Global
Security) except those cancelled by it, those delivered to it for cancellation,
those reductions in the interest in a Global Security effected by the Trustee
hereunder and those described in this Section 2.8 as not outstanding. A Security
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Security, except as provided in Section 2.9.
If a Security is replaced pursuant to Section 2.7 (other than a mutilated
Security surrendered for replacement), it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by
a bona fide purchaser. A mutilated Security ceases to be outstanding upon
surrender of such Security and replacement thereof pursuant to Section 2.7.
If on a Redemption Date or the Stated Maturity the Paying Agent (other than
the Company or an Affiliate of the Company) holds cash sufficient to pay all of
the principal, Redemption Price, interest, Additional Amounts, Liquidated
Damages and premium, if any, due on the Securities payable on that date and
payment of the Securities called for redemption is not otherwise prohibited,
then on and after that date such Securities cease to be outstanding and interest
on them ceases to accrue.
If the principal amount of any Security is considered paid under Section
4.1, it ceases to be outstanding and interest on it ceases to accrue.
Section 2.9 Treasury Securities.
-------------------
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, amendment, supplement, waiver or
consent, Securities owned by the Company or Affiliates of the Company shall be
disregarded, except that, for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, amendment, supplement,
waiver or consent, only Securities that a Trust Officer of the Trustee knows are
so owned shall be disregarded.
35
Section 2.10 Temporary Securities.
--------------------
Until Definitive Securities are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Securities. Temporary Securities
shall be substantially in the form of Definitive Securities but may have
variations that the Company reasonably and in good faith considers appropriate
for temporary Securities. Without unreasonable delay, the Company shall prepare
and the Trustee shall, upon receipt of a written order of the Company in the
form of an Officers' Certificate, authenticate Definitive Securities in exchange
for temporary Securities. Until so exchanged, the temporary Securities shall in
all respects be entitled to the same benefits under this Indenture as permanent
Securities authenticated and delivered hereunder.
Section 2.11 Cancellation.
------------
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration, transfer, exchange or
payment. The Trustee, or at the direction of the Trustee, the Registrar or the
Paying Agent (other than the Company or an Affiliate of the Company), and no one
else, shall cancel and, without the written direction of the Company to the
contrary, shall dispose of all Securities surrendered for transfer, exchange,
payment or cancellation. Subject to Section 2.7, the Company may not issue new
Securities to replace Securities that have been paid or delivered to the Trustee
for cancellation. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section 2.11, except as
expressly permitted in the form of Securities and as permitted by this
Indenture.
Section 2.12 Defaulted Interest.
------------------
(1) Interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the person
in whose name that Security (or one or more predecessor Securities) is
registered at the close of business on the Record Date for such interest.
(2) Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date plus any
interest payable on the defaulted interest at the rate and in the manner
provided in Section 4.1 and the Security (herein called "Defaulted Interest"),
shall forthwith cease to be payable to the registered Holder on the relevant
Record Date, or, as applicable, the Special Record Date (as defined below), and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest
to the persons in whose names the Securities (or their respective
predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee and
the Paying Agent in writing of the amount of Defaulted Interest proposed to
be paid on each Security and the date of the proposed payment, and at the
same time the Company shall deposit with the Paying Agent an amount of cash
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Paying
Agent for such deposit prior to the date of the proposed payment, such cash
when deposited to be held in trust for the benefit of the persons entitled
to such Defaulted Interest as
36
provided in this clause (a). Thereupon the Company shall fix a special
record date for the payment of such Defaulted Interest (a "Special Record
Date"), which shall be not more than 15 days, and not less than 10 days
prior to the date of the proposed payment and not less than 10 days after
the receipt by the Paying Agent of the notice of the proposed payment. The
Company shall promptly notify the Paying Agent and the Trustee of such
Special Record Date and, the Paying Agent in the name and at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder at such Holder's address as it appears in
the Security register not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the persons in whose names the
Securities (or their respective predecessor Securities) are registered on
such Special Record Date and shall no longer be payable pursuant to the
following clause (b).
(b) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee and the Paying Agent of the proposed payment
pursuant to this clause (b), such manner shall be deemed practicable by the
Trustee and the Paying Agent.
(3) Subject to the foregoing provisions of this Section 2.12, each
Security delivered under this Indenture upon the registration or transfer of, or
in exchange for or in lieu of any other Security, shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 2.13 CUSIP Numbers.
-------------
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE III
REDEMPTION
Section 3.1 Right of Redemption.
-------------------
(1) Redemption of Securities, as permitted by the provisions of this
Indenture, shall be made in accordance with such provisions and this Article
III.
(2) The Company may redeem the Securities at its option at any time
or from time to time before February 1, 2008, in whole or in part, at a price
equal to the sum of (i) 100% of the principal amount thereof plus accrued and
unpaid interest and Liquidated Damages and Additional Amounts, if any, thereon
to, but not including, the Redemption Date plus (ii) a Make-Whole Amount, if
any.
(3) At any time on or after February 1, 2008, the Company shall have
the right to redeem on one or more occasions the Securities for cash at its
option, in whole or in part, to each Holder of Securities at the Redemption
Prices specified in the form of Security attached as Exhibit A
37
in Paragraph 5 thereof, in each case (subject to the provisions set forth in
Sections 3.1(5) and 3.5), including accrued and unpaid interest and Liquidated
Damages, if any, and Additional Amounts, if any, thereon to, but not including,
the Redemption Date.
(4) At any time prior to February 1, 2007, upon any Equity Offering
of Qualified Capital Stock of ASAT Holdings for cash, up to 35% of the aggregate
principal amount of the Securities issued pursuant to this Indenture may be
redeemed at the Company's option within 90 days of such Equity Offering, on not
less than 30 days, but not more than 60 days, notice to each Holder of the
Securities to be redeemed, in an amount not to exceed the amount of cash
received by ASAT Holdings from the Net Cash Proceeds of such Equity Offering, at
a redemption price equal to 109.25% of principal, together with accrued and
unpaid interest and Liquidated Damages and Additional Amounts, if any, thereon
to, but not including, the Redemption Date; provided, however, that immediately
following such redemption not less than 65% of the aggregate principal amount of
the Securities originally issued pursuant to this Indenture on the Issue Date
remain outstanding.
(5) If the Redemption Date hereunder is on or after an interest
Record Date on which the Holders of record have a right to receive the
corresponding interest due and Liquidated Damages and Additional Amounts, if
any, and on or before the associated Interest Payment Date, any accrued and
unpaid interest and Liquidated Damages and Additional Amounts, if any, due on
such Interest Payment Date will be paid to the Person in whose name a Security
is registered at the close of business on such Record Date, and such interest
and Liquidated Damages and Additional Amounts, if any, will not be payable to
Holders whose Securities are redeemed pursuant to such redemption and who were
not Holders on the Record Date.
(6) Any redemption shall be on not less than 30 days nor more than 60
days notice to each Holder of Securities.
(7) Except as provided in this Indenture and Paragraph 5 of the
Securities, the Securities may not otherwise be redeemed at the option of the
Company.
Section 3.2 Notices to Trustee.
------------------
(1) If the Company elects to redeem Securities pursuant to this
Indenture and Paragraph 5 of the Securities, it shall notify the Trustee and the
Paying Agent in writing of the Redemption Date and the principal amount of
Securities to be redeemed and whether it wants the Paying Agent to give notice
of redemption to the Holders.
(2) If the Company elects to reduce the principal amount of
Securities to be redeemed pursuant to this Indenture and Paragraph 5 of the
Securities by crediting against any such redemption Securities it has not
previously delivered to the Trustee and the Paying Agent for cancellation, it
shall so notify the Trustee, in the form of an Officers' Certificate, and the
Paying Agent of the amount of the reduction and deliver such Securities with
such notice.
(3) The Company shall give each notice to the Trustee and the Paying
Agent provided for in this Section 3.2 at least 40 days before the Redemption
Date (unless a shorter notice shall be satisfactory to the Trustee and the
Paying Agent). Any such notice may be cancelled at any time prior to notice of
such redemption being mailed to any Holder and shall thereby be void and of no
effect.
Section 3.3 Selection of Securities to Be Redeemed.
--------------------------------------
(1) If less than all of the Securities are to be redeemed pursuant to
this Indenture and Paragraph 5 of the Securities thereof, the Trustee shall
select the Securities to be redeemed on a pro rata basis at least 20 days prior
to the Redemption Date, by lot or by such other method as the
38
Trustee shall determine to be appropriate and fair and in such manner as
complies with any applicable Depositary, legal and stock exchange requirements.
(2) The Trustee shall make the selection from the Securities
outstanding and not previously called for redemption and shall promptly notify
the Company and the Paying Agent in writing of the Securities selected for
redemption and, in the case of any Security selected for partial redemption, the
principal amount thereof to be redeemed. Securities in denominations of $1,000
may be redeemed only in whole. The Trustee may select for redemption portions
(equal to $1,000 or any integral multiple thereof) of the principal of
Securities that have denominations larger than $1,000. Provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption.
Section 3.4 Notice of Redemption.
--------------------
At least 30 days, but not more than 60 days prior to the Redemption Date,
the Company shall mail a notice of redemption by first class mail, postage
prepaid, to the Trustee, the Paying Agent and each Holder whose Securities are
to be redeemed to such Holder's last address as then shown upon the registry
books of the Registrar. At the Company's request, the Paying Agent shall give
the notice of redemption in the Company's name and at the Company's expense.
Each notice for redemption shall identify the Securities to be redeemed and
shall state:
(1) the Redemption Date;
(2) the Redemption Price, including accrued and unpaid interest and
Liquidated Damages and Additional Amounts, if any, to be paid upon such
redemption;
(3) the name and address of the Paying Agent and the Registrar;
(4) that Securities called for redemption must be surrendered to the
Paying Agent at the address specified in such notice to collect the Redemption
Price;
(5) that, unless (a) the Company defaults in its obligation to
deposit with the Paying Agent cash which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms shall
provide the amount to fund the Redemption Price in accordance with Section 3.6
or (b) such redemption payment is prohibited, interest on Securities called for
redemption ceases to accrue on and after the Redemption Date and the only
remaining right of the Holders of such Securities is to receive payment of the
Redemption Price, including accrued and unpaid interest (and Liquidated Damages
and Additional Amounts, if any) to the Redemption Date, upon surrender to the
Paying Agent of the Securities called for redemption and to be redeemed;
(6) if any Security is being redeemed in part, the portion of the
principal amount, equal to $1,000 or any integral multiple thereof, of such
Security to be redeemed and that, after the Redemption Date, and upon surrender
of such Security, a new Security or Securities in aggregate principal amount
equal to the unredeemed portion thereof shall be issued;
(7) if less than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be redeemed,
as well as the aggregate principal amount of such Securities to be redeemed and
the aggregate principal amount of Securities to be outstanding after such
partial redemption;
(8) the CUSIP number of the Securities to be redeemed; and
(9) that the notice is being sent pursuant to this Section 3.4 and
pursuant to the optional redemption provisions of Paragraph 5 of the Securities.
39
Section 3.5 Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed in accordance with Section 3.4,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price, including accrued and unpaid interest (and
Liquidated Damages, if any, and Additional Amounts, if any) to the Redemption
Date. Upon surrender to the Trustee or Paying Agent, such Securities called for
redemption shall be paid at the Redemption Price, including interest, Liquidated
Damages, if any, and Additional Amounts, if any, accrued and unpaid to the
Redemption Date; provided that if a Redemption Date is a Legal Holiday, payment
shall be made on the next succeeding Business Day and no interest shall accrue
for the period from such Redemption Date to such succeeding Business Day.
Section 3.6 Deposit of Redemption Price.
---------------------------
(1) No later than 10:00 a.m. (New York time) on the Business Day
immediately preceding the Redemption Date, the Company shall deposit in same day
funds with the Paying Agent (other than the Company or an Affiliate of the
Company) cash sufficient to pay the Redemption Price of all Securities to be
redeemed on such Redemption Date (other than Securities or portions thereof
called for redemption on that date that have been delivered by the Company to
the Trustee for cancellation). The Paying Agent shall promptly return to the
Company any cash so deposited which is not required for that purpose upon the
written request of the Company.
(2) If the Company complies with the preceding paragraph and payment
of the Securities called for redemption is not prohibited for any reason,
interest on the Securities to be redeemed shall cease to accrue on the
applicable Redemption Date, whether or not such Securities are presented for
payment. Notwithstanding anything herein to the contrary, if any Security
surrendered for redemption in the manner provided in the Securities shall not be
so paid upon surrender for redemption because of the failure of the Company to
comply with Section 3.6(1), interest shall continue to accrue and be paid from
the Redemption Date until such payment is made on the unpaid principal, and, to
the extent lawful, on any interest, Liquidated Damages and Additional Assets not
paid on such unpaid principal, in each case at the rate and in the manner
provided in Section 4.1 and in the Security.
Section 3.7 Securities Redeemed in Part.
---------------------------
Upon surrender of a Security that is to be redeemed in part, the Trustee
shall select the Securities or portions thereof for redemption on a pro rata
basis, by lot or in such other manner deemed appropriate and fair, and
authenticate and deliver to the Holder, without service charge to the Holder, a
new Security or Securities equal in principal amount to the unredeemed portion
of the Security surrendered. The Securities may be redeemed in part in multiples
of $1,000 only.
Section 3.8 Optional Tax Redemption.
-----------------------
(1) If, as a result of any change in or amendment to the laws,
regulations or published tax rulings of general applicability of Hong Kong, the
People's Republic of China, the Cayman Islands or the United States (or of any
taxing authority thereof or therein), which is proposed and becomes effective on
or after the Issue Date, in making any payment due or to become due under the
Securities or the Indenture, (a)(1) the Company is or would be required on the
next succeeding Interest Payment Date to pay Additional Amounts and (2) each
Guarantor is, or on the next succeeding Interest Payment Date would be, unable
for reasons outside its control, to cause the Company to pay amounts due under
the Securities, and with respect to any amount due under its Guarantee or the
Indenture, each Guarantor is, or would be required on the next succeeding
Interest Payment Date, to pay Additional Amounts and (b) the payment of such
Additional Amounts cannot be avoided by the use of any reasonable measures
available to the Company or such Guarantor, as the case may be, the Securities
may be redeemed at the option of the Company in whole but not in part,
40
upon not less than 30 nor more than 60 days' notice in accordance with the
procedures set forth in this Indenture, at any time at a redemption price equal
to 100% of the principal amount thereof, plus accrued and unpaid interest to the
date of redemption. The Company or such Guarantor will also pay to Holders on
the date of redemption any Additional Amounts which are payable.
(2) Prior to the publication of any notice of redemption in
accordance with Section 3.8(1), the Company shall deliver to the Trustee (i) an
Officers' Certificate stating that such amendment or change has occurred
(irrespective of whether such amendment or change is then effective), describing
the facts leading thereto and stating that the requirement to pay Additional
Amounts cannot be avoided by the Company or the Guarantors, as the case may be,
taking reasonable measures available to it and (ii) an Opinion of Counsel, which
counsel shall be reasonably acceptable to the Trustee, to the effect that the
Company has or will become obligated to pay Additional Amounts on the next
succeeding Interesting Payment Date as a result of such change or amendment.
Such notice, once delivered by the Company to the Trustee, will be irrevocable.
Section 3.9 Notices to SGX.
--------------
In addition to the notice required under Section 3.4, so long as the
Securities are listed on the SGX and it is required by the rules of the SGX all
notices to Holders will be valid if published in a daily newspaper of general
circulation in Singapore (or, if the Holders of any Securities can be
identified, notices to such Holders may also be valid if they are given to each
of such Holders). It is expected that such publication be made in the Business
Times. Notices will, if published more than once or on different dates, be
deemed to have been given on the date of the first publication in such
newspaper. Notice shall also be given to the SGX.
Notwithstanding anything in this Indenture in any case where the
identity and addresses of all the holders of the Securities are known to the
Company, notices to such Holders may be given individually by recorded delivery
mail to such addresses and will be deemed to have been given when received at
such addresses.
ARTICLE IV
COVENANTS
Section 4.1 Payment of Securities.
---------------------
(1) The Company shall pay the principal of, premium, if any, and
interest (and Liquidated Damages, if any, and Additional Amounts, if any) on the
Securities on the dates and in the manner provided herein and in the Securities.
An installment of principal of or premium, if any, or interest (or Liquidated
Damages, if any, or Additional Amounts, if any) on the Securities shall be
considered paid on the date it is due if the Trustee or Paying Agent (other than
the Company or an Affiliate of the Company) holds for the benefit of the Holders
(on or before 10:00 a.m. New York City time to the extent necessary to provide
the funds to the Depository in accordance with the Depository's procedures) on
that date cash deposited and designated for and sufficient to pay the
installment.
(2) The Company shall pay interest on overdue principal and on
overdue installments of interest (and Liquidated Damages, if any, and Additional
Amounts, if any) at the rate specified in the Securities compounded
semi-annually, to the extent lawful.
Section 4.2 Maintenance of Office or Agency.
-------------------------------
(1) The Company and the Guarantors shall maintain in the Borough of
Manhattan, The City of New York, an office or agency where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company and the Guarantors in respect of the Securities and this Indenture
may be served. The Company and the Guarantors shall give prompt written notice
to the Trustee and the Paying Agent of the location, and any change in the
location, of such office or agency. If at any time the Company and the
Guarantors shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee and the Paying Agent with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 13.2.
41
(2) The Company and the Guarantors may also from time to time
designate one or more other offices or agencies where the Securities may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company and the Guarantors of their
obligation to maintain an office or agency in the Borough of Manhattan, The City
of New York, for such purposes. The Company and the Guarantors shall give prompt
written notice to the Trustee and the Paying Agent of any such designation or
rescission and of any change in the location of any such other office or agency.
The Company hereby initially designates the Corporate Trust Office of the
Trustee as such office.
Section 4.3 Limitation on Restricted Payments.
---------------------------------
ASAT Holdings will not, and will not permit any Restricted Subsidiary to,
make, directly or indirectly, any Restricted Payment, if after giving effect on
a pro forma basis to such Restricted Payment:
(1) a Default or an Event of Default shall have occurred and be
continuing;
(2) ASAT Holdings is not permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Debt Incurrence Ratio in Section 4.11;
or
(3) the aggregate amount of all Restricted Payments made by ASAT
Holdings and its Restricted Subsidiaries, including after giving effect to such
proposed Restricted Payment, on and after the Issue Date, would exceed, without
duplication, the sum of:
(a) 50% of the aggregate Consolidated Net Income of ASAT Holdings for
the period (taken as one accounting period), commencing on the first day of
the first full fiscal quarter commencing after the Issue Date, to and
including the last day of the fiscal quarter ended immediately prior to the
date of each such calculation for which ASAT Holdings' consolidated
financial statements are required to be delivered to the Trustee or, if
sooner, filed with the SEC (or, in the event Consolidated Net Income for
such period is a deficit, then minus 100% of such deficit),
(b) 100% of the aggregate Net Cash Proceeds received by ASAT Holdings
from the sale of its Qualified Capital Stock other than (i) to one of its
Subsidiaries, (ii) pursuant to an employee stock ownership plan or trust
established by ASAT Holdings or any Subsidiary for the benefit of their
respective employees, to the extent the sale under this clause (ii) is
funded by ASAT Holdings or any Subsidiary or (iii) proceeds referred to in
clauses (c), (f) and (to the extent referred to therein) (e)(2) of Section
4.3(4) below,
(c) except, in each case, in order to avoid duplication, to the
extent any such payment or proceeds have been included in the calculation
of Consolidated Net Income, an amount equal to (i) the net reduction in
Investments (other than returns or proceeds of or from Permitted
Investments) in any Person resulting from dividends, distributions,
transfers on or repayments of any such Investments, including payments of
interest on Indebtedness, dividends, repayments of loans, repayments of
advances, or other distributions or other
42
transfers of assets, in each case to ASAT Holdings or any Restricted
Subsidiary or from the Net Cash Proceeds from the sale of any such
Investment plus (ii) the portion (proportionate to ASAT Holdings' Capital
Stock in an Unrestricted Subsidiary) of the Fair Market Value of the net
assets of an Unrestricted Subsidiary at the time such Unrestricted
Subsidiary is designated a Restricted Subsidiary in accordance with this
Indenture, not to exceed, in each case, the amount of such Investments
previously made by ASAT Holdings or any Restricted Subsidiary in such
Person, including, if applicable, such Unrestricted Subsidiary, less the
cost of disposition, and
(d) 100% of the Net Cash Proceeds received by ASAT Holdings or any
Restricted Subsidiary from the issuance or sale after the Issue Date of
convertible or exchangeable Indebtedness that (i) was permitted to be
incurred pursuant to Section 4.11 and (ii) has (on or prior to the time of
calculation) been irrevocably converted into or exchanged for Qualified
Capital Stock of ASAT Holdings (but only such Net Cash Proceeds received
with respect to Indebtedness so converted or exchanged), excluding:
(i) any such Indebtedness issued or sold to ASAT Holdings
or a Subsidiary of ASAT Holdings or an employee stock ownership
plan or trust established by ASAT Holdings or any Subsidiary for
the benefit of their respective employees, to the extent the sale
under this clause (i) is funded by ASAT Holdings or any
Subsidiary, and
(ii) the aggregate amount of any cash or the Fair Market
Value of property distributed or distributable by ASAT Holdings
or any Restricted Subsidiary upon or in connection with any such
conversion or exchange.
(4) Sections 4.3(1), (2) and (3), however, will not prohibit:
(a) any dividend, distribution or other payments by ASAT Holdings or
any Restricted Subsidiary on its Capital Stock that is made in Qualified
Capital Stock to the extent it constitutes a Restricted Payment;
(b) the payment of any dividend on Capital Stock within 60 days after
the date of its declaration if such dividend could have been made on the
date of such declaration in compliance with the foregoing provisions;
(c) the purchase, repurchase, redemption, defeasance, acquisition or
retirement for value of Capital Stock or Subordinated Indebtedness of ASAT
Holdings or any Restricted Subsidiary in exchange for, upon conversion of
or out of the proceeds of the Substantially Concurrent sale of, Capital
Stock of ASAT Holdings (other than Disqualified Capital Stock that is not
Refinancing Indebtedness and other than Capital Stock issued or sold to a
Subsidiary of ASAT Holdings or an employee stock ownership plan or trust
established by ASAT Holdings or any Subsidiary for the benefit of their
respective employees); provided, however, that
(1) such purchase, repurchase, redemption, defeasance,
acquisition or retirement shall be excluded in the calculation of the
amount of Restricted Payments, and
(2) the Capital Stock sale proceeds from such exchange or sale
shall be excluded from the calculation of Net Cash Proceeds pursuant
to Section 4.3(3)(b);
43
(d) the purchase, repurchase, redemption, defeasance, acquisition or
retirement for value of any Subordinated Indebtedness in exchange for, or
out of the proceeds of the Substantially Concurrent sale of, Refinancing
Indebtedness;
(e) so long as no Default or Event of Default has occurred and is
continuing, the purchase, repurchase, redemption, defeasance, acquisition
or retirement for value of Qualified Capital Stock of ASAT Holdings or any
Restricted Subsidiary of ASAT Holdings from any officer, director, employee
or consultant of ASAT Holdings or its Restricted Subsidiaries in accordance
with applicable law, pursuant to:
(i) a management equity subscription agreement, stock
option agreement or similar agreement; or
(ii) the terms of a restricted stock grant agreement for
Qualified Capital Stock pursuant to which ASAT Holdings or its
Restricted Subsidiaries have the option to repurchase such
restricted stock,
provided, however, that
(1) the aggregate amount of such purchases, repurchases,
redemptions, defeasances, acquisitions or retirements (excluding (A)
all non-cash repurchases under sub-clause (ii) above in consideration
for forgiveness or release by ASAT Holdings or any Restricted
Subsidiary of a note, loan or other evidence of indebtedness owed by
any officer, director, employee or consultant and (B) cash purchases
to which subclause (2) below applies) shall not exceed $1.0 million in
any calendar year (or part thereof); and
(2) to the extent that, following the Issue Date, cash is
received by ASAT Holdings from an officer, director, employee or
consultant as consideration for the purchase of unvested restricted
stock (being Qualified Capital Stock) pursuant to agreements referred
to in clause (e)(ii) above, such cash may be used by ASAT Holdings or
any Restricted Subsidiary for purchases, repurchases or acquisition of
such unvested restricted stock pursuant to clause (e)(ii) and the
terms of such agreements prior to the time such restricted stock has
vested, provided further that all such cash received from such
officer, director, employee or consultant under this subclause (2)
shall be excluded from the calculation of Net Cash Proceeds pursuant
to Section 4.3 (3)(b) above until such restricted stock has vested
and, following such vesting, shall only be included in the calculation
of Net Cash Proceeds pursuant to Section 4.3 (3)(b) above to the
extent not used to repurchase, redeem or acquire unvested restricted
stock under this subclause (2);
(f) non-cash acquisition of Qualified Capital Stock of ASAT Holdings
in payment for the exercise of stock options or stock appreciation rights
by way of cashless exercise; provided, however, for the avoidance of doubt,
that any deemed proceeds shall be excluded from the calculation of Net Cash
Proceeds pursuant to Section 4.3 (3)(b) above;
(g) in connection with an acquisition by ASAT Holdings or by any of
its Restricted Subsidiaries permitted by this Indenture, receive or accept
the return to ASAT Holdings or any of its Restricted Subsidiaries of
Capital Stock of ASAT Holdings or any of its Restricted Subsidiaries issued
in accordance with this Indenture and constituting a portion of the
purchase price consideration in settlement of indemnification claims
relating to such acquisition;
44
(h) making cash payments in lieu of the issuance of fractional shares
of the Qualified Capital Stock of ASAT Holdings (i) arising out of stock
dividends, splits or combinations or business combinations or (ii) in
connection with any conversion of convertible Indebtedness in accordance
with the terms of any convertible Indebtedness; provided that such cash
payments shall not exceed $50,000 in the aggregate in any calendar year (or
part thereof);
(i) honor any conversion request through the issuance of Qualified
Capital Stock by a holder of any convertible Indebtedness of ASAT Holdings
or its Restricted Subsidiaries; provided no payment of cash is involved
(except as otherwise permitted under another provision of this Section
4.3); and
(j) other Restricted Payments up to an aggregate of $10 million on
and after the Issue Date.
(5) The actions described in the preceding clauses (b), (e), (h) and
(j) of Section 4.3(4) shall be Restricted Payments that shall be permitted to be
made in accordance with this covenant but shall reduce the amount that would
otherwise be available for Restricted Payments under Section 4.3(3) above, and
the actions described in the preceding clauses (a), (c), (d), (f), (g) and (i)
of Section 4.3(4) shall be Restricted Payments that shall be permitted to be
taken in accordance with this Section 4.3 and shall not reduce the amount that
would otherwise be available for Restricted Payments under Section 4.3(3) above.
(6) For purposes of Section 4.3, the amount of any Restricted Payment
made or returned, if other than in cash, shall be the Fair Market Value thereof.
Additionally, within five days after each Restricted Payment in excess of $2.0
million made pursuant to Section 4.3(1), (2) and (3), clause (j) of Section
4.3(4) and clause (e) of the definition of Permitted Investments, the Company
shall deliver an Officers' Certificate to the Trustee describing in reasonable
detail the nature of such Restricted Payment, stating the amount of such
Restricted Payment, stating in reasonable detail the provisions of this
Indenture pursuant to which such Restricted Payment was made and certifying that
such Restricted Payment was made in compliance with the terms of this Indenture.
Section 4.4 Corporate and Partnership Existence.
-----------------------------------
Except as otherwise permitted by Article V, Section 4.14 or Section 11.4,
the Company and the Guarantors shall do or cause to be done all things necessary
to preserve and keep in full force and effect their respective corporate,
partnership or other organizational existence, as the case may be, and the
corporate, partnership or other organizational existence, as the case may be, of
each of their Subsidiaries in accordance with the respective organizational
documents of each of them and the material rights (charter and statutory) and
material corporate franchises of the Company, the Guarantors and each of their
respective Subsidiaries; provided, however, that neither the Company nor any
Guarantor shall be required to preserve, with respect to themselves, any right
or franchise, and with respect to any of their respective Subsidiaries, any such
existence, right or franchise, if (a) ASAT Holdings shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
ASAT Holdings and (b) the loss thereof is not adverse in any material respect to
the Holders.
Section 4.5 Payment of Taxes and Other Claims.
---------------------------------
The Company and the Guarantors shall, and shall cause each of their
Subsidiaries to, pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (a) all material taxes, assessments and
governmental charges (including withholding taxes and any penalties, interest
and additions to taxes) levied or imposed upon the Company, any Guarantor or any
of their Subsidiaries or any of their respective properties and assets and (b)
all lawful claims, whether for labor, materials, supplies or services, which
have become due and payable and which by law have or may become a Lien upon the
property and assets of the Company, any Guarantor or any of their Subsidiaries;
provided, however, that neither the Company nor any Guarantor shall be required
to pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings and for which disputed amounts adequate
reserves have been established, to the extent required by and in accordance with
GAAP.
45
Section 4.6 Maintenance of Properties and Insurance.
---------------------------------------
(1) The Company and the Guarantors shall cause all material
properties used or useful to the conduct of their business and the business of
each of their Subsidiaries to be maintained and kept in good condition, repair
and working order (reasonable wear and tear excepted) and supplied with all
necessary equipment and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in their reasonable
judgment may be necessary, so that the business carried on in connection
therewith may be properly conducted at all times; provided, however, that
nothing in this Section 4.6 shall prevent the Company or any Guarantor from
discontinuing any operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is (a)(i) in the
judgment of ASAT Holdings desirable in the conduct of the business of ASAT
Holdings and its Subsidiaries and (ii) not adverse in any material respect to
the Holders or (b) otherwise permitted under Section 4.14 or Article V.
(2) ASAT Holdings and its Restricted Subsidiaries shall provide, or
cause to be provided, for themselves and each of their Restricted Subsidiaries,
insurance (including appropriate self-insurance) against loss or damage of the
kinds that, in the reasonable, good faith opinion of the Board of Directors of
ASAT Holdings is adequate and appropriate for the conduct of the business of
ASAT Holdings and its Restricted Subsidiaries in a prudent manner, with (except
for self-insurance) reputable insurers or with the government of the United
States of America, Hong Kong, the Cayman Islands or the People's Republic of
China or an agency or instrumentality thereof, in such amounts, with such
deductibles, and by such methods as shall be customary, in the reasonable, good
faith opinion of ASAT Holdings and adequate and appropriate for the conduct of
the business of ASAT Holdings and its Restricted Subsidiaries in a prudent
manner for entities similarly situated in the industry of ASAT Holdings and its
Restricted Subsidiaries.
Section 4.7 Compliance Certificate; Notice of Default.
-----------------------------------------
(1) Each of the Company and ASAT Holdings shall deliver to the
Trustee within 120 days after the end of its fiscal year an Officers'
Certificate, one of the signatories of which shall be the principal executive,
principal financial or principal accounting officer of the Company and of ASAT
Holdings, respectively, complying with Section 314(a)(4) of the TIA and also
stating that a review of ASAT Holdings activities and the activities of its
Restricted Subsidiaries, if any, during the preceding fiscal year has been made
under the supervision of the signing Officers with a view to determining whether
each of the Company and the Guarantors has kept, observed, performed and
fulfilled its obligations under this Indenture and further stating, as to each
such Officer signing such certificate, whether or not the signer knows of any
failure by the Company, ASAT Holdings, any other Guarantor or any Restricted
Subsidiary of ASAT Holdings to comply with any conditions or covenants in this
Indenture or of any Defaults and, if such signer does know of such a failure to
comply or Default, the certificate shall describe such failure and Default with
particularity. The Officers' Certificate shall also notify the Trustee whether
the relevant fiscal year ends on any date other than the current fiscal year end
date.
(2) Each of the Company and ASAT Holdings shall, so long as any of
the Securities are outstanding, deliver to the Trustee, promptly upon becoming
aware of any Default or Event of Default, an Officers' Certificate specifying
such Default or Event of Default and what action the Company and ASAT Holdings
are taking or propose to take with respect thereto. The Trustee shall not be
deemed to have knowledge of any Default, any Event of Default or any such fact
unless one of its Trust Officers receives written notice thereof from the
Company or any of the Holders and such notice references the Securities and this
Indenture.
46
Section 4.8 Reports.
-------
Whether or not ASAT Holdings is subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act applicable to a U.S. issuer, ASAT
Holdings will deliver to the Trustee and to each Holder, within five days after
ASAT Holdings is or would have been (if ASAT Holdings were a U.S. issuer subject
to such reporting obligations) required to file such reports with the SEC,
annual and quarterly financial statements substantially equivalent to financial
statements that would have been included in reports filed with the SEC, if ASAT
Holdings were a U.S. issuer subject to the requirements of Section 13 or 15(d)
of the Exchange Act, including, with respect to annual information only, a
report thereon by ASAT Holdings certified independent public accountants as such
would be required in such reports to the SEC, and, in each case, together with a
management's discussion and analysis of financial condition and results of
operations which would be so required and, unless the SEC will not accept such
reports, file with the SEC the annual, quarterly and other reports which ASAT
Holdings is or would have been required to file with the SEC. ASAT Holdings and
its Restricted Subsidiaries shall comply with the requirements of Rule 3-10 of
Regulation S-X of the SEC's Rules (and any successor provisions relating to the
disclosure of financial statements of subsidiaries).
Section 4.9 Limitation on Location of Business.
----------------------------------
As long as the Securities remain outstanding, none of the Company or the
Guarantors, other than ASAT, Inc. and ASAT (Finance) LLC, shall establish or
maintain any office or place of business, or conduct any material business, in
the United States either directly or through an agent.
Section 4.10 Limitation on Transactions with Affiliates.
------------------------------------------
ASAT Holdings will not, and will not permit any of the Restricted
Subsidiaries on or after the Issue Date to, enter into, directly or indirectly,
or suffer to exist any contract, agreement, arrangement or transaction with any
Affiliate (an "Affiliate Transaction"), or any series of related Affiliate
Transaction, (other than Exempted Affiliate Transactions),
(1) unless it is determined that the terms of such Affiliate
Transaction, when viewed together with all related Affiliate Transactions,
are no less favorable to ASAT Holdings or such Restricted Subsidiary, as
the case may be, than could have been obtained in an arm's length
transaction with a non-Affiliate of ASAT Holdings and the Restricted
Subsidiaries;
(2) if involving consideration to either party in excess of $2.0
million unless such Affiliate Transaction(s) has been approved by a
majority of the members of the Board of Directors of ASAT Holdings that are
disinterested in such transaction, if there are any directors who are so
disinterested; and
(3) if involving consideration to either party in excess of $10.0
million, unless ASAT Holdings, prior to the consummation thereof, obtains a
written favorable opinion as to the fairness of such transaction to ASAT
Holdings from a financial point of view from an independent investment
banking firm of national reputation in the United States or, if pertaining
to a matter for which such investment banking firms do not customarily
render such opinions, an appraisal or valuation firm of national reputation
in the United States.
Within 5 days of any Affiliate Transaction(s) involving consideration to
either party of $2.0 million or more, ASAT Holdings shall deliver to the Trustee
an Officers' Certificate addressed to the Trustee certifying that such Affiliate
Transaction (or Transactions) complied with Section 4.10 (1), (2) or (3), as
applicable.
47
Section 4.11 Limitation on Incurrence of Additional Indebtedness and
-------------------------------------------------------
Issuance of Disqualified Capital Stock and Preferred Stock.
----------------------------------------------------------
(1) ASAT Holdings will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly issue, assume, guaranty, incur become
liable with respect to (including as a result of any Acquisition), or otherwise
become responsible for, contingently or otherwise (individually and
collectively, to "incur" or, as appropriate an "incurrence"), any Indebtedness
(including the issuance of Disqualified Capital Stock and the incurrence of
Acquired Indebtedness), other than Permitted Indebtedness, and that ASAT
Holdings will not permit any Restricted Subsidiary to issue any Preferred Stock.
(2) Notwithstanding the foregoing if on the date of such incurrence
(the "Incurrence Date"), the Consolidated Coverage Ratio of ASAT Holdings for
the Reference Period immediately preceding the Incurrence Date, after giving
effect on a pro forma basis to such incurrence of such Indebtedness (including
Disqualified Capital Stock) and, to the extent set forth in the definition of
Consolidated Coverage Ratio, the use of proceeds thereof, would be at least 2.5
to 1.0 (the "Debt Incurrence Ratio"), then the Company or Guarantors may incur
such Indebtedness (including Disqualified Capital Stock).
(3) In addition, the foregoing limitations of Section 4.11(1) will
not prohibit:
(a) the incurrence by ASAT Holdings or any Restricted Subsidiary of
Purchase Money Indebtedness and Capitalized Lease Obligations, in each case
incurred for the purpose of financing all or any part of the acquisition,
lease, construction, installation, additions or improvements of or to
property, plant or equipment used or useful in a Related Business;
provided, that the aggregate amount of such Indebtedness incurred and
outstanding at any time pursuant to this Section 4.11(3)(a) (plus any
Refinancing Indebtedness issued to repay, redeem, retire, defease,
refinance, replace, discharge, refund or otherwise retire for value such
Indebtedness) shall not exceed the greater of (i) $20 million and (ii) 5%
of the Net Tangible Assets of ASAT Holdings and its Consolidated Restricted
Subsidiaries at the time of incurrence (or the equivalent thereof in
applicable foreign currency);
(b) the incurrence by ASAT Holdings or any Restricted Subsidiary of
Indebtedness (including Disqualified Capital Stock) (plus any Refinancing
Indebtedness incurred to repay, redeem, retire, defease, refinance,
replace, discharge, refund or otherwise retire for value such Indebtedness)
in an aggregate amount incurred and outstanding at any time pursuant to
this Section 4.11(3)(b) of up to $10.0 million (or the equivalent thereof,
at the time of incurrence, in applicable foreign currency); provided
however that at no time shall the aggregate amount of such Indebtedness
(including Disqualified Capital Stock) (including all such Refinancing
Indebtedness) of all Non-Guarantor Restricted Subsidiaries which is
incurred and outstanding pursuant to this Section 4.11(3)(b) exceed $5
million (or the equivalent thereof, at the time of incurrence, in
applicable foreign currency);
(c) the incurrence by the Company or any Guarantor (including the
guarantee thereof by the Company and any other Guarantor) of Indebtedness
(including Disqualified Capital Stock) pursuant to one or more Credit
Agreements (plus any Refinancing Indebtedness incurred to repay, redeem,
retire, defease, refinance, replace, discharge, refund or otherwise retire
for value such Indebtedness) which in an aggregate amount incurred and
outstanding at any time pursuant to this Section 4.11(3)(c) shall not
exceed the greater of (i) $20 million and (ii) the sum of 80% of the
accounts receivable plus 50% of inventory of ASAT Holdings and its
Consolidated Restricted Subsidiaries at the time of the incurrence (or the
equivalent thereof in the applicable foreign currency);
(d) the incurrence by ASAT Holdings or any Restricted Subsidiary of
Interest Swap and Hedging Obligations; and
48
(e) the incurrence by ASAT Holdings or any Restricted Subsidiary of
Indebtedness pursuant to the lease of a portion of the Profit Industrial
Building located at Nos. 0-00, Xxxx Xxxx Xxxxxxxx, Nos. 00-00 Xxxxxxxxx
Xxxx Xxxx, Xxxx Xxxxx, Xxx Xxxxxxxxxxx, Hong Kong.
(4) Indebtedness (including Disqualified Capital Stock) of any Person
which is outstanding at the time such Person becomes a Restricted Subsidiary
(including upon designation of any Subsidiary or other Person as a Restricted
Subsidiary) or is merged with or into or consolidated with ASAT Holdings or one
of its Restricted Subsidiaries shall be deemed to have been incurred at the time
such Person becomes a Restricted Subsidiary or is merged with or into or
consolidated with ASAT Holdings or one of its Restricted Subsidiaries, as
applicable.
(5) The accrual of interest, the accretion or amortization of
original issue discount, the payment of interest on any Indebtedness in the form
of additional Indebtedness with the same terms, the accumulation of dividends on
Disqualified Capital Stock of Restricted Subsidiaries (to the extent not paid)
and the payment of dividends on Disqualified Capital Stock in the form of
additional shares of the same class of Disqualified Capital Stock will not be
deemed to be an incurrence of Indebtedness (including an issuance of
Disqualified Capital Stock) for purposes of this Section 4.11; provided that, in
each case, the amount thereof shall be included in Consolidated Fixed Charges in
accordance with the definition thereof.
(6) A change in GAAP that results in an obligation of such Person
that exists at such time, and is not theretofore classified as Indebtedness,
becoming Indebtedness shall not be deemed an incurrence of such Indebtedness.
(7) For purposes of determining compliance with this Section 4.11, in
the event that an item of Indebtedness meets the criteria of more than one of
the categories of Permitted Indebtedness or more than one of the categories in
Section 4.11(3) or is entitled to be incurred pursuant to Section 4.11(2), the
Company shall, in its sole discretion, classify or reclassify such item of
Indebtedness (or any part thereof), in any manner that complies with this
Section 4.11, and such item of Indebtedness will be treated as having been
incurred pursuant to one or more of such categories of Permitted Indebtedness or
one or more of such categories in Section 4.11(3) or pursuant to Section
4.11(2).
(8) Notwithstanding any other provision of this Section 4.11, but
only to avoid duplication, (a) a guarantee of Indebtedness of ASAT Holdings or
of a Restricted Subsidiary incurred in accordance with the terms of this
Indenture issued Substantially Concurrently with such Indebtedness or if later
at the time the guarantor thereof became a Restricted Subsidiary, and (b)
guarantees, Liens or obligations, in each case, in support of Indebtedness
incurred under this Section 4.11 will, in each case, not constitute a separate
incurrence, or amount outstanding, of Indebtedness.
(9) For purposes of determining compliance with any U.S. dollar
denominated restriction on the incurrence of Indebtedness where the Indebtedness
incurred is denominated in a different currency, the amount of such Indebtedness
will be the U.S. Dollar Equivalent determined on the date of the incurrence of
such Indebtedness; provided, however, that if any such Indebtedness denominated
in a different currency is subject to a Currency Agreement with respect to U.S.
dollars, covering all principal, premium, if any, and interest payable on such
Indebtedness, the amount of such Indebtedness expressed in U.S. dollars will be
as provided in such 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) such U.S. Dollar Equivalent was determined based on a Currency
Agreement, in which case the Refinancing Indebtedness will be determined in
accordance with 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 such excess will be
determined on the date such Refinancing Indebtedness is incurred.
49
(10) The Company and the Guarantors will not, and will not permit any
Restricted Subsidiary to, incur any Indebtedness that is contractually
subordinated in right of payment to any other Indebtedness of any of ASAT
Holdings or any Restricted Subsidiary, unless such Indebtedness is also
contractually subordinated in right of payment to the Securities and the
Guarantees on substantially identical terms; provided, however, that no
Indebtedness shall be deemed to be contractually subordinated in right of
payment to any other Indebtedness solely by virtue of any Liens, Guarantees,
maturity of payments or structural subordination.
(11) Notwithstanding anything to the contrary contained in this
Section 4.11, any increase in the amount of Indebtedness due to currency
fluctuations shall not be considered an incurrence of Indebtedness for purposes
of this Section 4.11.
Section 4.12 Limitations on Dividends and Other Payment Restrictions
-------------------------------------------------------
Affecting Subsidiaries.
----------------------
ASAT Holdings will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or assume or suffer to exist any
consensual restriction on the ability of any Restricted Subsidiary to pay
dividends or make other distributions on its Capital Stock to, or to pay any
Indebtedness or other obligation owed to, or otherwise to transfer assets or
property to, or make any loans or advances to ASAT Holdings or any of its
Restricted Subsidiaries, except:
(1) restrictions in effect on the Issue Date (except that
restrictions under this Indenture governing the Senior Notes due 2006 may only
be in effect up to the date no later than 45 days following the Issue Date);
(2) restrictions imposed by the Securities or this Indenture or by
other Indebtedness (which may also be guaranteed by the Guarantors) ranking pari
passu with the Securities or the Guarantees, as applicable; provided, that such
restrictions are no more restrictive, taken as a whole, than those imposed by
this Indenture and the Securities;
(3) restrictions existing by virtue of, or arising under, applicable
law, regulation, order, approval, license, permit or similar restriction, in
each case issued or imposed by a governmental authority;
(4) restrictions under any Acquired Indebtedness not incurred in
violation of this Indenture or restrictions under any agreement (including any
Capital Stock) relating to any Capital Stock of a Restricted Subsidiary,
property, asset, or business acquired by ASAT Holdings or any of its Restricted
Subsidiaries in accordance with this Indenture, which restrictions in each case
existed at the time of acquisition, were not put in place in connection with or
in anticipation of such acquisition and are not applicable to any Person, other
than the Person acquired, or to any property, asset or business, other than the
property, assets and business so acquired;
(5) any restrictions imposed by Indebtedness incurred under one or
more Credit Agreements pursuant to Section 4.11(3)(c);
(6) restrictions solely with respect to any Restricted Subsidiary or
its assets (including any Capital Stock) imposed pursuant to a binding agreement
which has been entered into for the sale or disposition of all or substantially
all of the Capital Stock or assets of such Restricted Subsidiary in accordance
with this Indenture; provided, that such restrictions apply solely to the
Capital Stock or assets of such Restricted Subsidiary which are being sold;
50
(7) restrictions on transfer contained in Purchase Money Indebtedness
and Capitalized Lease Obligations incurred pursuant to Section 4.11(3)(a);
provided, that such restrictions relate only to the transfer of the property
acquired, leased, constructed, installed or improved (including any replacement
parts, attachments and accessions with respect thereto and proceeds thereof)
with the proceeds of such Purchase Money Indebtedness or pursuant to such
Capital Lease Obligations;
(8) in connection with and pursuant to Refinancing Indebtedness,
replacements of restrictions imposed pursuant to Sections 4.12 (1), (2), (4) or
(7) or this Section 4.12(8) that are not more restrictive, taken as a whole,
than those being replaced;
(9) provisions relating to the disposition or distribution of assets
or property in joint venture agreements, partnership agreements, stock sale and
asset sale agreements and other similar agreements entered into in the ordinary
course of business; and
(10) any restriction on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business.
Notwithstanding the foregoing, (a) customary provisions in licenses or
other agreements entered into in the ordinary course of business to the extent
the license or such other agreement restricts the transfer of property subject
to such license or agreement, the license or agreement itself or the rights
thereunder are allowed and (b) any asset subject to a Lien which is permitted
under this Indenture may be subject to customary restrictions on the transfer or
disposition thereof pursuant to such Lien.
Section 4.13 Additional Covenants.
--------------------
(1) For so long as the Securities remain outstanding and are listed
on the SGX, the Company shall:
(a) ensure that its directors prepare a report that relates to each
quarter (commencing with the quarter ending January 31, 2004), which report
shall set out in detail any matters adversely affecting the Security or
interests of the Holders and (without affecting the generality of the
foregoing), shall comply with the requirements set out below, and shall
deliver such report, signed by two directors, to the Trustee and SGX within
one month of the end of the period. The report must state:
(i) whether or not any limitation of liabilities or
borrowings as prescribed by this Indenture has been exceeded;
(ii) whether or not the Company and the Guarantors have
observed and performed all the covenants and obligations binding
upon them respectively pursuant to this Indenture;
(iii) whether or not any event has happened which has
caused or could cause a Default or Event of Default under the
Securities or any provision of this Indenture;
(iv) whether or not any material trading or capital loss
has been sustained by the Company or any Guarantor;
(v) whether or not any circumstances materially affecting
the Company or any Guarantor have occurred which adversely affect
the Securities and if so, the particulars of these circumstances;
51
(vi) whether any contingent liabilities have been incurred
by the Company or any Guarantor and if so, the amount incurred,
and whether or not any contingent liability has matured or is
likely to mature within the next twelve months which will
materially affect the ability of the Company or any Guarantor to
repay the Securities;
(vii) whether or not there has been any change in any
accounting method or method of valuation of assets or liabilities
of the Company or any Guarantors;
(viii) whether or not any circumstances have arisen which
render adherence to the existing method of valuation of assets or
liabilities misleading or inappropriate with respect to the
Company or the Guarantors; and
(ix) whether or not there has been any substantial change
in the nature of the Company's or any Guarantor's business since
the Issue Date;
(b) ensure that its directors shall give notice in writing to the
Trustee promptly upon any of its directors becoming aware that any
obligations imposed upon the Company under this Indenture cannot be
fulfilled; and
(c) on the application of Holders of the Securities holding not less
than 10% of the nominal amount of the Securities outstanding delivered to
the Company's registered office, to requisition a meeting of Holders of the
Securities in accordance with applicable laws.
Section 4.14 Limitation on Sale of Assets and Subsidiary Stock.
-------------------------------------------------
(1) ASAT Holdings will not, and will not permit any of its Restricted
Subsidiaries to, in one or a series of related transactions, convey, sell,
transfer, assign or otherwise dispose of, directly or indirectly, any of their
property, business or assets, including by merger or consolidation, and
including any sale or other transfer or issuance of any Capital Stock of any
Subsidiary (other than directors' qualifying or similar shares required by law
to be held by third parties), whether by ASAT Holdings or a Restricted
Subsidiary and including any Sale and Leaseback Transaction (any of the
foregoing, an "Asset Sale"), unless:
(a) ASAT Holdings or its Restricted Subsidiaries, as the case may be,
receives consideration at the time of such Asset Sale that is at least
equal to the Fair Market Value of the property, business or assets
(including Capital Stock) subject to such Asset Sale; and
(b) at least 75% of such consideration consists of cash, Cash
Equivalents or Additional Assets; provided, however, that (i) the amount of
Indebtedness under any senior secured Credit Agreement, Capitalized Lease
Obligations and Purchase Money Indebtedness (in each case, as shown on ASAT
Holdings or a Restricted Subsidiary's most recent balance sheet) of ASAT
Holdings or any such Restricted Subsidiary which are fully released and for
which there is no recourse to any assets or property of ASAT Holdings or
its Restricted Subsidiaries and (ii) any securities, notes or other
obligations received by ASAT Holdings or such Restricted Subsidiary from
the purchaser that are promptly and within no more than 60 days converted
into cash, Cash Equivalents or Additional Assets (to the extent of the
cash, Cash Equivalents or Additional Assets received) shall, in each case,
be deemed to be cash for the purposes of the 75% limitation in this Section
4.14(1)(b).
(2) Within 365 days of the Asset Sale or by any Event of Loss
relating to a Material Facility, any Net Cash Proceeds from such Asset Sale or
Event of Loss may at the option of ASAT Holdings or such Restricted Subsidiary,
as the case may be, be (i) invested in Additional Assets or (ii) used to retire
and repay Indebtedness under any senior secured Credit Agreement, Capitalized
Lease Obligations or Purchase Money Indebtedness of the Company or any Guarantor
(provided that in the case of a revolving credit facility or similar arrangement
that makes credit
52
available, such commitment is so permanently reduced by such amount). Any Net
Cash Proceeds from any Asset Sale or Event of Loss that are not used in the
manner referred to in clauses (i) and (ii) of this paragraph shall constitute
"Excess Proceeds" subject to disposition as provided below. Pending final
application of any such Net Cash Proceeds within such 365-day period, ASAT
Holdings and its Restricted Subsidiaries may temporarily reduce revolving credit
borrowings or otherwise invest such amounts in cash or Cash Equivalents.
(3) If the aggregate amount of Excess Proceeds for all Asset Sales
equals or exceeds $10.0 million, ASAT Holdings and its Restricted Subsidiaries
will within 365 days of the Asset Sale, cause the Excess Proceeds to be applied
by the Company (i) to make an optional redemption of the Securities in
accordance with this Indenture and of all other Indebtedness ranking on a parity
with the Securities, on a pro rata basis in proportion to the respective
principal amounts (or accreted values, if applicable) of the Securities and such
other Indebtedness then outstanding; or (ii) to make an offer (each, an "Asset
Sale Offer") to purchase Securities and all such other Indebtedness on a parity
with the Securities which has similar provisions requiring ASAT Holdings or any
of its Restricted Subsidiaries to make an offer to purchase such Indebtedness
with the proceeds from such Asset Sale pursuant to a cash offer (subject only to
conditions required by applicable law, if any), on a pro rata basis in
proportion to the respective principal amounts (or accreted values, if
applicable) of the Securities and such other Indebtedness then outstanding, at a
purchase price (the "Asset Sale Offer Price") of 100% of the principal amount
(or accreted values, if applicable) thereof, together with accrued and unpaid
interest, Liquidated Damages and Additional Amounts, if any, to, but not
including, the date of payment (the "Asset Sale Offer Amount").
(4) To the extent that the aggregate principal amount of Securities
tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, ASAT
Holdings and its Restricted Subsidiaries may use the balance of any such Excess
Proceeds for any purpose not otherwise prohibited by this Indenture.
(5) In any Asset Sale Offer involving a purchase of Securities by the
Company, the Securities shall be purchased by the Company at the option of the
holder thereof, in whole or in part in integral multiples of $1,000, on a date
that is not later than 60 days from the date the notice is given to holders, or
such later date as may be necessary for the Company to comply with the
requirements under the Exchange Act. Upon completion of an Asset Sale Offer
pursuant to this covenant, the amount of Excess Proceeds shall be reset to zero.
(6) ASAT Holdings and the Restricted Subsidiaries will comply with
Rule l4e-1 under the Exchange Act and any other securities laws and regulations
thereunder and the rules of any securities exchange, to the extent such laws,
regulations and rules are applicable, in the event that an Asset Sale occurs and
the Company is required to purchase or redeem the Securities as described above.
To the extent that the provisions of any applicable securities laws or
regulations or the rules of any securities exchange conflict with provisions of
this Section 4.14, the Company will only to the extent of such conflict comply
with the applicable securities laws and regulations or the rules of any
securities exchange and will not be deemed to have breached its obligations
under this Section 4.14 by virtue of such compliance to such extent.
(7) Notwithstanding, and without complying with, the other provisions
of this Section 4.14:
(a) ASAT Holdings and the Restricted Subsidiaries may, in the
ordinary course of business, convey, sell, transfer, assign or otherwise
dispose of assets;
(b) the Company and the Guarantors may convey, sell, transfer, assign
or otherwise dispose of assets pursuant to and in accordance with and only
to the extent permitted by Section 5.1;
53
(c) ASAT Holdings and the Restricted Subsidiaries may sell or dispose
of damaged, worn out or other obsolete personal property in the ordinary
course of business so long as such property is no longer necessary for the
proper conduct of the business of ASAT Holdings and such Restricted
Subsidiaries, as applicable;
(d) ASAT Holdings and the Restricted Subsidiaries may convey, sell,
transfer, assign or otherwise dispose of assets to ASAT Holdings or any
other Restricted Subsidiary, as applicable;
(e) ASAT Holdings and the Restricted Subsidiaries may convey, sell,
transfer, assign, or otherwise dispose of assets (or related assets in
related transactions) with an aggregate Fair Market Value of less than $1.0
million;
(f) any Subsidiary of ASAT Holdings may issue Capital Stock to ASAT
Holdings or to a Restricted Subsidiary (other than the issuance of Capital
Stock by ASAT Holdings and any Restricted Subsidiary to an Unrestricted
Subsidiary) in accordance with the other provisions of this Indenture;
(g) ASAT Holdings or any Restricted Subsidiary may license
intellectual property or know-how and such license shall not be an Asset
Sale; provided, however, that any cash received from any exclusive license
arrangement of intellectual property or know-how shall be applied in the
manner required by Sections 4.14(1) through 4.14(6) as received by ASAT
Holdings or any Restricted Subsidiary;
(h) an Asset Sale shall not include the granting of a Permitted Lien
incurred in accordance with Section 4.16;
(i) an Asset Sale shall not include the surrender or waiver of
litigation rights or settlement, release or surrender of tort or other
litigation claims of any kind;
(j) ASAT Holdings and the Restricted Subsidiaries may convey, sell,
transfer, assign or otherwise dispose of cash and Cash Equivalents provided
that such conveyance, sale, transfer or assignment does not contravene any
other provision of this Indenture;
(k) ASAT Holdings and any Restricted Subsidiary may make any
disposition that constitutes a Permitted Investment or Restricted Payment
to the extent permitted by Section 4.3, Section 4.12 and the other
provisions of this Indenture;
(l) ASAT Holdings and any Restricted Subsidiary may make a
conveyance, sale, transfer, assignment or other disposition of Capital
Stock in any Restricted Subsidiary in exchange for Capital Stock
(constituting a minority interest) in an entity primarily engaged in a
Related Business; provided that such conveyance, sale, transfer, assignment
or other disposition complies with the other provisions of this Indenture
(including Section 4.3); and
(m) the sale or other conveyance of the real property named the
Profit Industrial Building located at Nos. 0-00, Xxxx Xxxx Xxxxxxxx, Nos.
00-00 Xxxxxxxxx Xxxx Xxxx, Xxxx Xxxxx, Xxx Xxxxxxxxxxx, Hong Kong.
(8) If the payment date in connection with an Asset Sale Offer
hereunder is on or after an interest payment Record Date and on or before the
associated Interest Payment Date, any accrued and unpaid interest (and
Liquidated Damages and Additional Amounts, if any, due on such Interest Payment
Date) will be paid to the Person in whose name a Security is registered at the
close of business on such Record Date, and such interest (or Liquidated Damages
and Additional Amounts, if applicable) will not be payable to Holders who tender
Securities pursuant to such Asset Sale Offer and who are not Holders on the
Record Date.
54
(9) Notice of an Asset Sale Offer shall be sent, on or prior to the
commencement of the Asset Sale Offer, by first-class mail, by the Company to
each Holder at its registered address, with a copy to the Trustee. The notice to
the Holders shall contain all information, instructions and materials required
by applicable law or otherwise material to such Holders' decision to tender
Securities pursuant to the Asset Sale Offer. The notice, which (to the extent
consistent with this Indenture) shall govern the terms of an Asset Sale Offer,
shall state:
(a) that the Asset Sale Offer is being made pursuant to such notice
and this Section 4.14;
(b) the Asset Sale Offer Amount, the Asset Sale Offer Price
(including the amount of accrued but unpaid interest (and Liquidated
Damages, if any, and Additional Amounts, if any)), and the date of
purchase;
(c) that any Security or portion thereof not tendered or accepted for
payment will continue to accrue interest if interest is then accruing;
(d) that, unless the Company defaults in depositing cash with the
Paying Agent (which may not for purposes of this Section 4.14,
notwithstanding anything in this Indenture to the contrary, be the Company
or any Affiliate of the Company), in accordance with Section 4.14(10), any
Security, or portion thereof, accepted for payment pursuant to the Asset
Sale Offer shall cease to accrue interest after the Asset Sale Purchase
Date;
(e) that Holders electing to have a Security, or portion thereof,
purchased pursuant to an Asset Sale Offer will be required to surrender
their Security, with the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Security completed, to the Paying Agent (which may
not for purposes of this Section 4.14, notwithstanding any other provision
of this Indenture, be the Company or any Affiliate of the Company) at the
address specified in the notice;
(f) that Holders will be entitled to withdraw their elections, in
whole or in part, if the Paying Agent receives, prior to the expiration of
the Asset Sale Offer, a facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Securities the Holder is
withdrawing and a statement containing a facsimile signature and stating
that such Holder is withdrawing his election to have such principal amount
of the Securities purchased;
(g) that if Indebtedness in a principal amount in excess of the
principal amount of Securities to be acquired pursuant to the Asset Sale
Offer are tendered and not withdrawn, the Company shall purchase
Indebtedness on a pro rata basis in proportion to the respective principal
amounts (or accreted values in the case of Indebtedness issued with an
original issue discount) thereof (with such adjustments as may be deemed
appropriate by the Company so that only Securities in denominations of
$1,000 or integral multiples of $1,000 shall be acquired);
(h) that Holders whose Securities were purchased only in part will be
issued new Securities equal in principal amount to the unpurchased portion
of the Securities surrendered; and
(i) the circumstances and relevant facts regarding such Asset Sales.
(10) On or before the date of purchase, the Company shall:
(a) accept for payment Securities or portions thereof properly
tendered pursuant to the Asset Sale Offer (on a pro rata basis if required
pursuant to Section 4.14(3)),
55
(b) deposit with the Paying Agent cash sufficient to pay the Asset
Sale Offer Price for all Securities or portions thereof so accepted; and
(c) deliver to the Trustee Securities so accepted together with an
Officers' Certificate setting forth the Securities or portions thereof
being purchased by the Company.
The Paying Agent shall promptly mail or deliver to Holders of Securities so
accepted payment in an amount equal to the Asset Sale Offer Price for such
Securities, and the Company shall promptly issue a new Security and the Trustee,
upon written request of the Company, shall promptly authenticate and mail or
deliver to such Holders such new Security equal in principal amount to any
unpurchased portion of the Security surrendered. Any Securities not so accepted
shall be promptly mailed or delivered by the Company to the Holder thereof.
Section 4.15 Waiver of Stay, Extension or Usury Laws.
---------------------------------------
Each of the Company and the Guarantors covenants (to the extent that it may
lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law which would prohibit or forgive the
Company or any Guarantor from paying all or any portion of the principal of,
premium of, or interest (or Liquidated Damages, if any, or Additional Amounts,
if any) on the Securities as contemplated herein, wherever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may lawfully do so)
each of the Company and the Guarantors hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not hinder, delay or
impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law had
been enacted.
Section 4.16 Limitation on Liens.
-------------------
ASAT Holdings will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, create, incur, or assume or suffer to exist any Lien of
any kind, other than Permitted Liens, upon any of their respective assets now
owned or acquired on or after the date of this Indenture or upon any income or
profits therefrom securing any of their Indebtedness, unless ASAT Holdings
provides, and causes its Restricted Subsidiaries to provide, concurrently
therewith or prior thereto, that the Securities and the applicable Guarantees
are equally and ratably so secured; provided that if such Indebtedness is
Subordinated Indebtedness, the Lien securing such Subordinated Indebtedness
shall be contractually subordinate and junior to the Lien securing the
Securities (and any related applicable Guarantees) with the same relative
priority as such Subordinated Indebtedness shall have with respect to the
Securities (and any related applicable Guarantees).
Section 4.17 Rule 144A Information Requirement.
---------------------------------
So long as any of the Securities are "restricted securities" within the
meaning of Rule 144(a)(3) under the Act, then each of the Company and the
Guarantors will, during any period in which ASAT Holdings is not subject to and
in compliance with Section 13 or 15(d) of the Exchange Act or it is not exempt
from such reporting requirements pursuant to and in compliance with Rule
12g3-2(b) under the Exchange Act, provide to each holder of such restricted
securities and to each prospective purchaser (as designated by such holder) of
such restricted securities, upon the request of such holder or prospective
purchaser, any information required to be provided by Rule 144A(d)(4) under the
Act. This Section 4.17 is intended to be for the benefit of the holders, and the
prospective purchasers designated by such holders, from time to time of such
restricted securities.
56
Section 4.18 Limitation on Lines of Business.
-------------------------------
Neither ASAT Holdings nor any of its Restricted Subsidiaries will engage to
any material extent in any line or lines of business activity other than that
which is a Related Business.
Section 4.19 Additional Amounts.
------------------
(1) All payments of principal, premium, interest and Liquidated
Damages (if any) in respect of each Security and the Guarantees shall be made
free and clear of, and without withholding or deduction for, any taxes, duties,
assessments or governmental charges of whatever nature imposed, levied,
collected, withheld or assessed by or within Hong Kong, the People's Republic of
China, the Cayman Islands or the United States (and, in the case of a Guarantor,
the country of residence or incorporation of the Guarantor or jurisdiction in
which the Guarantor has an office or is doing business) or any political
subdivision or taxing authority thereof or therein, unless such withholding or
deduction is required by law or by regulation or governmental authority having
the force of law. In the event that any such withholding or deduction in respect
of principal, premium, interest or Liquidated Damages is so required, the
Company or the Guarantors, as the case may be, shall pay such additional amounts
("Additional Amounts") as will result in receipt by each Holder of any Security
of such amounts as would have been received by such Holder with respect to such
Security or Guarantee, as applicable, had no such withholding or deduction been
required, except that no Additional Amounts shall be payable:
(a) for or on account of:
(i) any tax, duty, assessment or other governmental
charge that would not have been imposed but for
(A) the existence of any present connection
between such Holder or the beneficial owner of such
Security and Hong Kong, the People's Republic of China,
the Cayman Islands or the United States (as the case
may be, other than merely holding such Security or
Guarantee or the receipt of, or enforcement of rights
under, the Guarantees or the Securities, or the receipt
of payments in respect thereof) including, without
limitation, such Holder or the beneficial owner of such
Security being a national, domiciliary or resident
thereof or being present or engaged in a trade or
business therein or having a permanent establishment
therein; or
(B) the presentation of such Security (where
presentation is required) more than thirty (30) days
after the date on which the payment in respect of such
Security became due and payable or provided for,
whichever is later, except to the extent that such
Holder would have been entitled to such Additional
Amounts if it had presented such Security for payment
on any day within such period of thirty (30) days; or
(ii) any estate, inheritance, gift, sale, transfer,
personal property or similar tax, assessment or other
governmental charge; or
(iii) any combination of items (i) and (ii); or
57
(iv) in the case of any withholding taxes imposed by the
United States, the Holder's failure to provide appropriate tax
certification as prescribed by applicable United States income
tax laws; or
(b) with respect to any payment of the principal of or any premium,
interest, or Liquidated Damages, on such Security or Guarantee to such
Holder (including a fiduciary or partnership) to the extent that the
beneficial owner of such Security would not have been entitled to such
Additional Amounts had it been the Holder of the Security.
(2) The Company and the Guarantors will provide to the Trustee and
Paying Agent a certified receipt issued by the relevant government authority
evidencing payment of withholding taxes within 30 days after payment thereof.
Copies of such receipts shall be provided to Holders requesting such copies.
(3) Whenever there is mentioned in any context, the payment of
principal, premium, interest or Liquidated Damages, in respect of any Security
or the net proceeds received on the sale or exchange of any Security, such
mention shall be deemed to include the payment of Additional Amounts provided
for this Section 4.19 to the extent that, in such context, Additional Amounts
are, were or would be payable in respect thereof pursuant to this Indenture.
(4) The Company or the Guarantors, as the case may be, will pay any
present or future stamp, court or documentary taxes, or any other excise or
property taxes, charges or similar levies which arise in any jurisdiction from
the execution, delivery, enforcement or registration of the Securities or the
Guarantees, excluding any such taxes, charges or similar levies imposed by any
jurisdiction outside of Hong Kong, the People's Republic of China, the Cayman
Islands or the United States, except those resulting from, or required to be
paid in connection with, the enforcement of the Securities or the Guarantees
following the occurrence of any Event of Default with respect to the Securities.
Section 4.20 Restrictions on Ownership of ASAT and the Company.
-------------------------------------------------
During the term of this Indenture and the Securities, ASAT Holdings or a
successor entity following a transaction which complies with Section 5.1 must
continue to directly or indirectly own, beneficially and of record, 100% of the
membership interests (other than director's qualifying shares or similar shares
held by others as required by applicable law) of the Company (and any successor
thereto).
Section 4.21 Payment for Consent.
-------------------
ASAT Holdings will not, and will not permit any Restricted Subsidiaries to,
directly or indirectly, pay or cause to be paid any consideration to or for the
benefit of any Holder of Securities for or as an inducement to any consent,
waiver or amendment of any of the terms of provisions of this Indenture or the
Securities unless such consideration is offered to be paid and is paid to all
Holders of the Securities that consent, waive or agree to amend in the time
frame set forth in and in accordance with the solicitation documents relating to
such consent, waiver or agreement.
Section 4.22 Indemnification of Judgment Currency.
------------------------------------
The Company and the Guarantors shall, to the fullest extent permitted by
law, jointly and severally, indemnify the Trustee and any Holder of a Security
against any loss incurred by the Trustee or such Holder, as the case may be, as
a result of any judgment or order being given or made for any amount due under
this Indenture, the Registration Rights Agreement or such Security and being
expressed and paid in a currency (the "Judgment Currency") other than Dollars,
and as a result of any variation between (a) the rate of exchange at which the
Dollar amount is converted into the Judgment Currency for the purpose of such
judgment or order and (b) the spot rate of exchange in The City of
58
New York at which the Trustee or such Holder, as the case may be, on the date of
payment of such judgment or order is able to purchase Dollars with the amount of
the Judgment Currency actually received by the Trustee or such Holder. If the
amount of Dollars so purchased exceeds the amount originally to be paid to such
Holder, such Holder agrees to pay to or for the account of the Company (with
respect to payments made by the Company) and the Guarantors (with respect to
payments made by the Guarantors) such excess; provided, that such Holder shall
not have any obligation to pay any such excess as long as a default by the
Company or the Guarantors, as applicable in its obligations hereunder has
occurred and is continuing, in which case such excess may be applied by such
Holder to such obligations. The foregoing indemnity shall constitute a separate
and independent judgment or order as aforesaid. The term "spot rate of exchange"
shall include any premiums and costs of exchange payable in connection with the
purchase of or conversion into, United States of America dollars.
ARTICLE V
SUCCESSOR CORPORATION
Section 5.1 Limitation on Merger, Sale or Consolidation.
-------------------------------------------
(1) None of the Company, ASAT Holdings, ASAT or any of their
respective successors (each, a "Significant Entity") may consolidate with or
merge with or into another Person or, directly or indirectly, sell, lease,
convey or transfer all or substantially all of its assets, whether in a single
transaction or a series of related transactions, to another Person unless:
(a) either (i) such Significant Entity is the continuing entity, or
(ii) the resulting, surviving or transferee entity is organized under the
laws of the Xxxxxx Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx, Xxxx Xxxx or the United
States any state thereof or the District of Columbia and expressly assumes
by supplemental indenture all of such Significant Entity's obligations in
connection with this Indenture and the Securities;
(b) no Default or Event of Default shall exist or shall occur
immediately after giving effect on a pro forma basis to such transaction
(treating any Indebtedness which previously was not an obligation of such
Significant Entity and becomes an obligation of the continuing entity as a
result of the transaction as having been incurred by the continuing entity
at the time of the transaction);
(c) immediately after giving effect to such transaction on a pro
forma basis, the consolidated resulting, surviving or transferee entity
would be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Debt Incurrence Ratio set forth in Section 4.11(2);
(d) in the case of such a transaction involving the Company or its
successor, each Guarantor, unless such Guarantor is the Person with which
the Company has entered into a transaction under this Section 5.1, shall
have by amendment to its Guarantee confirmed that its Guarantee shall apply
to the obligations of such Company or the resulting, surviving or
transferee entity in accordance with the Securities and this Indenture;
(e) the resulting, surviving or transferee entity shall have
delivered, immediately prior to the consummation of the transaction, to the
Trustee an opinion of counsel, which counsel shall be reasonably acceptable
to the Trustee, to the effect that the Holders will not recognize income,
gain or loss for United States federal income tax purposes as a result of
such transaction, and will be subject to United States federal income tax
on the same amounts and at the same time as would have been the case if the
transaction had not occurred; and
59
(f) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and any supplemental indenture complies
with this Indenture;
provided, however, that clause (c) above shall not apply (x) if, in the good
faith determination of the Board of Directors, 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
Significant Entity or (y) in the case of a merger or consolidation of or
conveyance by sale, lease, or transfer of a Significant Entity with or into the
Company or a Guarantor which is ASAT Holdings or a Wholly-Owned Restricted
Subsidiary of ASAT Holdings.
(2) A Guarantor (other than a Significant Entity to which Section
5.1(1) shall apply) may not consolidate with or merge with or into another
Person or, directly or indirectly, sell, lease, convey or transfer all or
substantially all of its assets, whether in a single transaction or a series of
related transactions, to another Person unless:
(a) either (i) such Guarantor is the continuing entity, or (ii) the
resulting, surviving or transferee entity is organized in a jurisdiction
pursuant to which it is permitted to provide a guarantee as provided for in
Section 11.1 and such resulting, surviving or transferee entity expressly
assumes by supplemental indenture all of such Guarantor's obligations in
connection with this Indenture and the Securities;
(b) no Default or Event of Default shall exist or shall occur
immediately after giving effect on a pro forma basis to such transaction
(treating any Indebtedness which previously was not an obligation of ASAT
Holdings or any Restricted Subsidiaries and becomes an obligation of the
continuing entity as a result of the transaction as having been incurred by
the continuing entity at the time of the transaction); and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and any supplemental indenture comply
with this Indenture;
provided, however, that this paragraph will not apply to any transaction which
results in such Guarantor no longer being a Restricted Subsidiary of ASAT
Holdings and the other provisions of this Indenture (including Section 4.14) are
complied with.
Section 5.2 Successor Corporation Substituted.
---------------------------------
Upon the Company or a Guarantor consolidating or merging with or into
another Person or upon a sale, lease, conveyance or transfer of all or
substantially all of the Company's or such Guarantor's assets, whether in a
single transaction or a series of related transactions, to another Person in
accordance with Section 5.1 (other than to an existing Guarantor or the Company,
in which case this Section 5.2 shall not apply), the successor entity formed by
such consolidation, merger or to which such sale, lease, conveyance or transfer
is made (unless it is already the Company or a Guarantor) shall succeed to and
(except in the case of a lease) be substituted for, and may exercise every right
and power of, the Company or such Guarantor (as the case may be) under this
Indenture with the same effect as if such successor entity had been named
therein as the Company or such Guarantor, and (except in the case of a lease)
the Company or such Guarantor shall be released from its obligations under the
Securities, the Guarantees and this Indenture except with respect to any
obligations that arise from, or are related to, such transaction; provided,
however, that any such release shall occur only to the extent that all
obligations of such Company or Guarantor under all of the guarantees of any
Credit Facility of ASAT Holdings or any Restricted Subsidiary shall also be
released or terminate upon such sale or disposition and none of its Capital
Stock is pledged for the benefit of any holder of any Indebtedness of ASAT
Holdings or any Restricted Subsidiary. Upon the designation of a Guarantor as an
Unrestricted Subsidiary in accordance with this Indenture, such Guarantor shall
be released from its obligations under the Securities, the Guarantees and this
Indenture.
60
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
Section 6.1 Events of Default.
-----------------
"Event of Default," wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
caused voluntarily or involuntarily or effected, without limitation, by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) the failure to pay any installment of interest (or Additional
Amounts or Liquidated Damages, if any) on the Securities as and when the same
becomes due and payable and the continuance of any such failure for 30 days;
(2) the failure to pay all or any part of the principal, or premium,
if any, on the Securities when and as the same becomes due and payable at
maturity, redemption, by acceleration or otherwise, including, without
limitation, payment of the Change of Control Purchase Price or the Asset Sale
Offer Price on Securities validly tendered and not properly withdrawn pursuant
to a Change of Control Offer or Asset Sale Offer, as applicable;
(3) the failure by the Company or any Guarantor to observe or perform
any other covenant or agreement contained in the Securities or this Indenture
and, except for Section 4.14, Section 5.1 and Article X for which no notice
shall be required, the continuance of such failure for a period of 30 days after
written notice is given to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of the
Securities outstanding;
(4) a decree, judgment or order by a court of competent jurisdiction
shall have been entered adjudicating the Company, ASAT Holdings or any of its
Significant Subsidiaries (including ASAT Limited) as bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization of the Company,
ASAT Holdings or any of its Significant Subsidiaries (including ASAT Limited)
under any bankruptcy or similar law, and such decree or order shall have
continued undischarged and unstayed for a period of 60 days; or a decree,
judgment or order of a court of competent jurisdiction appointing a receiver,
liquidator, trustee, or assignee in bankruptcy or insolvency for the Company,
ASAT Holdings, any of its Significant Subsidiaries (including ASAT Limited), or
any substantial part of the property of any such Person, or for the winding up
or liquidation of the affairs of any such Person, shall have been entered, and
such decree, judgment or order shall have remained in force undischarged and
unstayed for a period of 60 days;
(5) ASAT Holdings or any of its Significant Subsidiaries (including
ASAT Limited) shall institute proceedings to be adjudicated a voluntary
bankrupt, or shall consent to the filing of a bankruptcy proceeding against it,
or shall file a petition or answer or consent seeking reorganization under any
bankruptcy or similar law or similar statute, or shall consent to the filing of
any such petition, or shall consent to the appointment of a Custodian, receiver,
liquidator, trustee, or assignee in bankruptcy or insolvency of it or any
substantial part of its assets or property, or shall make a general assignment
for the benefit of creditors, or shall admit in writing its inability to pay its
debts generally as they become due, fail generally to pay its debts as they
become due, or take any corporate action in furtherance of any of the foregoing;
(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
61
ASAT Holdings or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by ASAT Holdings 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, or interest or
premium, if any, on such Indebtedness prior to the expiration of the 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 principal amount of any such Indebtedness, together with
the 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
$10.0 million or more;
(7) final unsatisfied judgments not covered by insurance aggregating
in excess of $10.0 million, at any one time rendered against the Company or any
of ASAT Holdings' or any of its Significant Subsidiaries that shall not be
stayed, bonded or discharged within 60 days following such judgment;
(8) any Guarantee of ASAT Holdings or a Guarantor that is a
Significant Subsidiary, ceases to be in full force and effect or becomes
unenforceable or invalid or is declared null and void (other than in accordance
with the terms of the Guarantee) or ASAT Holdings or any Guarantor that is a
Significant Subsidiary denies or disaffirms its Obligations under its Guarantee;
or
(9) the failure of the Senior Notes due 2006 to have been redeemed or
otherwise no longer be outstanding by the date no later than 45 days following
the Issue Date.
Section 6.2 Acceleration of Stated Maturity; Rescission and Annulment.
---------------------------------------------------------
(1) If an Event of Default occurs and is continuing (other than an
Event of Default specified in Sections 6.1(4) and 6.1(5) above relating to the
Company, ASAT Holdings or any of its Significant Subsidiary,) then in every such
case, unless the principal of all of the Securities shall have already become
due and payable, either the Trustee or the Holders of at least 25% in aggregate
principal amount of the Securities then outstanding, by notice in writing to the
Company (and to the Trustee if given by Holders), may declare all principal,
determined as set forth below, and accrued interest (and Liquidated Damages and
Additional Amounts, if any) thereon to be due and payable immediately. If an
Event of Default specified in Sections 6.1(4) and 6.1(5) relating to the Company
or any of ASAT Holdings or any of its Significant Subsidiaries occurs, all
principal and accrued interest (and Liquidated Damages and Additional Amounts,
if any) thereon will be immediately due and payable on all outstanding
Securities without any declaration or other act on the part of the Trustee or
the Holders.
(2) Subject to the provisions of this Indenture relating to the
duties of the Trustee, the Trustee will be under no obligation to exercise any
of its rights or powers under this Indenture at the request, order or direction
of any of the Holders, unless such Holders have offered to the Trustee security
or indemnity reasonably satisfactory to it.
(3) At any time after such a declaration of acceleration being made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter provided in this Article VI, the Holders of not
less than a majority in aggregate principal amount of then outstanding
Securities, by written notice to the Company and the Trustee, may rescind, on
behalf of all Holders, any such declaration of acceleration if:
(a) the Company has paid or deposited with the Trustee cash
sufficient to pay:
62
(i) all overdue interest and Liquidated Damages and
Additional Amounts, if any, on all Securities,
(ii) the principal of (and premium, if any, applicable to)
any Securities which would become due other than by reason of
such declaration of acceleration, and interest thereon at the
rate borne by the Securities,
(iii) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by the
Securities,
(iv) all sums paid or advanced by the Trustee hereunder
and the compensation, expenses, disbursements and advances of the
Trustee and its agents and counsel, and all other amounts due the
Trustee under Section 7.7 and
(b) all Events of Default, other than the non-payment of the
principal of, premium, if any, and interest on Securities which have become
due solely by such declaration of acceleration, have been cured or waived
as provided in Section 6.12.
(4) Notwithstanding the previous sentence of this Section 6.2, no
waiver shall be effective against any Holder for any Event of Default or event
which with notice or lapse of time or both would be an Event of Default with
respect to (a) any covenant or provision which cannot be modified or amended
without the consent of the Holder of each outstanding Security affected thereby,
unless all such affected Holders agree, in writing, to waive such Event of
Default or other event and (b) any provision requiring supermajority approval to
amend, unless such default has been waived by such a supermajority. No such
waiver shall cure or waive any subsequent default or impair any right consequent
thereon.
(5) In the case of any Event of Default occurring by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the Company
or any Guarantor with the intention of avoiding payment of any premium that the
Company or any Guarantor would have had to pay if the Company then had elected
to redeem the Securities pursuant to the optional redemption provisions of this
Indenture, an equivalent premium shall also become and be immediately due and
payable to the extent permitted by law.
Section 6.3 Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
-------
(1) The Company covenants that if an Event of Default in payment of
principal, premium or interest (or Liquidated Damages or Additional Amounts, if
any) specified in Section 6.1(1) or Section 6.1(2) occurs and is continuing, the
Company shall, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal, premium (if any), and interest (and Liquidated Damages
and Additional Amounts, if any), and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal (and
premium, if any), and on any overdue interest (and Liquidated Damages and
Additional Amounts, if any), at the rate borne by the Securities, provided,
however, that the Trustee shall not be required to determine the amounts due
hereunder and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including compensation to, and
expenses, disbursements and advances of the Trustee and its agents and counsel
and all other amounts due the Trustee under Section 7.7.
(2) If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust in favor
of the Holders, may institute a judicial proceeding for the collection of the
sums so due and unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company or any Guarantor and collect
the moneys adjudged or decreed to be payable in the manner provided by law out
of the property of the Company or any Guarantor, wherever situated.
63
(3) If an Event of Default occurs and is continuing, the Trustee may
in its discretion proceed to protect and enforce its rights and the rights of
the Holders by such appropriate judicial proceedings as the Trustee shall deem
most effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.4 Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any Guarantor or the property of
the Company or of such Guarantor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal, premium, if any (and Liquidated Damages and Additional Amounts, if
any), or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise to take any and all actions under the TIA, including
(1) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest (and Liquidated Damages and Additional Amounts, if
any) owing and unpaid in respect of the Securities and to file such 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 and its agent and counsel and all
other amounts due the Trustee under Section 7.7) and of the Holders allowed in
such judicial proceeding, and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official 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 it for the reasonable compensation, expenses,
disbursements and advances of the Trustee and its agents and counsel, and any
other amounts due the Trustee under Section 7.7.
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 Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and may be a member of a creditors'
committee.
Section 6.5 Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust in favor of the Holders, and any recovery of
judgment shall, after provision for the payment of compensation to, and
expenses, disbursements and advances of the Trustee and its agents and counsel
and all other amounts due the Trustee under Section 7.7, be for the ratable
benefit of the Holders of the Securities in respect of which such judgment has
been recovered.
Section 6.6 Priorities.
----------
64
Any money collected by the Trustee pursuant to this Article VI shall be
applied, subject to applicable law, in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account
of principal, premium (if any), or interest (or Liquidated Damages, if any, or
Additional Amounts, if any), upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the Trustee in payment of all amounts due pursuant to Section
7.7;
SECOND: To the Holders in payment of the amounts then due and unpaid for
principal of, premium (if any), and interest (and Liquidated Damages, if any,
and Additional Amounts, if any) on, the Securities in respect of which or for
the benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities for principal, premium (if any), and interest (and Liquidated
Damages, if any, and Additional Amounts, if any), respectively; and
THIRD: To the Company, the Guarantors or such other Person as may be
lawfully entitled thereto, the remainder, if any, each as their respective
interests may appear.
The Trustee may, but shall not be obligated to, fix a record date and
payment date for any payment to the Holders under this Section 6.6.
Section 6.7 Limitation on Suits.
-------------------
No Holder of any Security shall have any right to order or direct the
Trustee to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or to appoint a receiver or trustee, or to institute any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the registered Holders of not less than 25% in aggregate
principal amount of then outstanding Securities shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder and offered to the Trustee indemnity
reasonably satisfactory to it to institute such proceeding as Trustee; and
(3) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding or pursue any
remedies and such Trustee shall not have received from the registered Holders of
a majority in aggregate principal amount of the Securities then outstanding a
direction inconsistent with such request;
it being understood and intended (i) that no one or more Holders shall have any
right in any manner whatsoever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders and (ii) such
limitations do not apply to a suit instituted by a Holder of Securities for
enforcement of payment of the principal of, and premium, if any, or interest,
including Liquidated Damages, if any, and Additional Amounts, if any, on, such
Security on or after the respective due dates expressed in such Security.
Section 6.8 Unconditional Right of Holders to Receive Principal, Premium
-------------------------------------------------------------
and Interest.
------------
Notwithstanding any other provision of this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of, and premium (if any), and interest (and Liquidated
Damages, if any, and Additional Amounts, if any) on, such Security on the Stated
Maturity of such payments as expressed in such Security (in the case of
redemption, the
65
Redemption Price on the applicable Redemption Date, in the case of a Change of
Control, the Change of Control Purchase Price on the Change of Control Purchase
Date, and in the case of an Asset Sale, the Asset Sale Offer Price on the
relevant purchase date) and to institute suit for the enforcement of any such
payment after such respective dates, and such rights shall not be impaired
without the consent of such Holder.
Section 6.9 Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in Section 2.7, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 6.10 Delay or Omission Not Waiver.
----------------------------
No delay or omission by the Trustee or by any Holder of any Security to
exercise any right or remedy arising upon any Event of Default shall impair the
exercise of any such right or remedy or constitute a waiver of any such Event of
Default. Every right and remedy given by this Article VI or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.11 Control by Holders.
------------------
The Holder or Holders of a majority in aggregate principal amount of then
outstanding Securities shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred upon the Trustee, provided, that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee shall not be obligated to determine and shall have no
duty to ascertain that the action so directed would involve it in personal
liability or would be unjustly prejudicial to the Holders not taking part in
such direction, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 6.12 Waiver of Existing or Past Default.
----------------------------------
(1) Subject to Section 6.8, the Holder or Holders of not less than a
majority in aggregate principal amount of the outstanding Securities may, on
behalf of all Holders, waive any existing or past Default or Event of Default
hereunder and its consequences under this Indenture, except a Default or Event
of Default:
(a) in the payment of the principal of, premium, if any, or interest
(or Liquidated Damages, if any, or Additional Amounts, if any) on, any
Security as specified in Section 6.1(1) or Section 6.1(2) and not yet
cured, or
(b) in respect of a covenant or provision hereof which, under Article
IX, cannot be modified or amended without the consent of the Holder of each
outstanding Security affected;
66
provided, however; that if there is a Default or Event of Default with
respect to a provision that requires more than a simple majority of the
Holders to amend (a "Super Majority") then such Default or Event of Default
may only be waived by a Super Majority of the Holders.
(2) Upon any such waiver, such 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 the exercise of any right arising therefrom.
Section 6.13 Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that 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, suffered or omitted to be taken by it as
Trustee, any court may in its discretion require the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section 6.13 shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in aggregate principal amount
of the outstanding Securities, or to any suit instituted by any Holder for
enforcement of the payment of principal of, or premium (if any), or interest (or
Liquidated Damages, if any, or Additional Amounts, if any) on, any Security on
or after the respective Stated Maturity expressed in such Security (including,
in the case of redemption, on or after the Redemption Date).
Section 6.14 Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every case, subject to any determination in such
proceeding, the Company, the Guarantors, the Trustee and the Holders shall be
restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
ARTICLE VII
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture and
covenants and agrees to perform the same, as herein expressed, subject to the
terms hereof.
Section 7.1 Duties of Trustee.
-----------------
(1) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in their exercise
as a prudent Person would exercise or use under the circumstances in the conduct
of his or her own affairs.
(2) Except during the continuance of a Default or an Event of
Default:
(a) The Trustee need perform only those duties as are specifically
set forth in this Indenture and no others, and no covenants or obligations
shall be implied in or read into this Indenture, and
67
(b) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements (including the
accuracy of any mathematical calculations) 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, in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(3) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(a) This paragraph does not limit the effect of paragraph (b) of this
Section 7.1,
(b) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts, and
(c) The Trustee shall 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 6.11.
(4) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any action
under this Indenture or at the request, order or direction of the Holders or in
the exercise of any of its rights or powers if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(5) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (1), (2), (3), (4) and (5) of this Section 7.1.
(6) The Trustee shall not be required to invest and shall not be
liable for interest on any assets received by it except as the Trustee may agree
in writing with the Company (including without limitation to the extent the
Trustee receives funds prior to the Interest Payment Date in order to comply
with the provisions of Section 4.1). Assets held in trust by the Trustee need
not be segregated from other assets except to the extent required by law.
Section 7.2 Rights of Trustee.
-----------------
Subject to the provisions of Section 7.1:
(1) The Trustee may conclusively rely and shall be protected in
acting or refraining from acting on 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 such document.
(2) Before the Trustee acts or refrains from acting, it may consult
with counsel of its selection and may require an Officers' Certificate or an
Opinion of Counsel or both. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate or advice
of counsel.
(3) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any attorney or agent
appointed with due care.
68
(4) The Trustee shall not be liable for any action it or its agent
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers conferred upon it by this Indenture.
(5) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, notice, request, direction, consent, order, bond, debenture or other
paper or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and if
the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company
personally or by its agent or attorney at the sole cost of the Company and shall
incur no liability or additional liability of any kind by reason of such inquiry
or investigation.
(6) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities which may be incurred therein or thereby.
(7) Unless otherwise specifically provided for in this Indenture, any
demand, request, direction or notice from the Company or any Guarantor shall be
sufficient if signed by an Officer of the Company or such Guarantor, as
applicable.
(8) The Trustee shall have no duty to inquire as to the performance
of the Company's or any Guarantor's covenants in Article IV or as to the
performance by any Agent of its duties hereunder. In addition, the Trustee shall
not be deemed to have knowledge of any Default or Event of Default except (i)
any Event of Default occurring pursuant to Sections 4.1, 6.1(1) and 6.1(2), or
(ii) any Default or Event of Default of which the Trustee shall have received
written notification or obtained actual knowledge and such notice references the
Securities and this Indenture.
(9) Whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate.
(10) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and each agent, custodian and other Person employed
to act hereunder.
(11) In no event shall the Trustee be responsible or liable for
special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the
Trustee has been advised of the likelihood of such loss or damage and regardless
of the form of action.
(12) The Trustee may request that the Company or the Guarantors
deliver an Officers' Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions pursuant to
this Indenture, which Officers' Certificate may be signed by any person
authorized to sign an Officers' Certificate, including any person specified as
so authorized in any such certificate previously delivered and not superseded.
Section 7.3 Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company, any Guarantor,
any of their Subsidiaries, or their respective Affiliates with the same rights
it would have if it were not Trustee. Any Agent may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
69
Section 7.4 Trustee's Disclaimer.
--------------------
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities and it shall not be accountable for the Company's
use of the proceeds from the Securities or any money paid to the Company or upon
the Company's discretion under any provision of this Indenture, and it shall not
be responsible for any statement or recital herein or any statement in the
Securities, other than the Trustee's certificate of authentication, or the use
or application of any funds received by a Paying Agent other than the Trustee.
Section 7.5 Notice of Default.
-----------------
If a Default or an Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to each Securityholder notice of
the uncured Default or Event of Default within 90 days after the Trustee gains
knowledge of such Default or Event of Default. Except in the case of a Default
or an Event of Default in payment of principal (or premium, if any), of, or
interest (or Liquidated Damages, if any, or Additional Amounts, if any) on, any
Security (including the payment of the Change of Control Purchase Price on the
Change of Control Payment Date, the payment of the Redemption Price on the
Redemption Date and the payment of the Asset Sale Offer Price on the relevant
purchase date), the Trustee may withhold the notice if and so long as a Trust
Officer in good faith determines that withholding the notice is in the interest
of the Securityholders.
Section 7.6 Reports by Trustee to Holders.
-----------------------------
(1) Within 60 days after each April 15 beginning with the April 15,
2005 following the date of this Indenture, the Trustee shall, if required by
law, mail to each Securityholder a brief report dated as of such April 15 that
complies with TIA Section 313(a). The Trustee also shall comply with TIA
Sections 313(b) and 313(c).
(2) The Company shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange or automated quotation system and
of any delisting therefrom.
(3) A copy of each report at the time of its mailing to
Securityholders shall be mailed to the Company and filed with the SEC and each
stock exchange, if any, on which the Securities are listed.
Section 7.7 Compensation and Indemnity.
--------------------------
(1) The Company and the Guarantors jointly and severally agree to pay
to the Trustee from time to time reasonable compensation for services rendered
by it hereunder in such amounts as may be agreed to from time to time by the
Trustee and the Company. The Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Company and the
Guarantors shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it in accordance with
this Indenture. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents, accountants, experts and
counsel.
(2) The Company and the Guarantors jointly and severally agree to
indemnify the Trustee (in its capacity as Trustee) and each of its officers,
directors, attorneys-in-fact and agents for, and hold it harmless against, any
claim, demand, expense (including but not limited to reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel), loss or
liability incurred by it without negligence or bad faith on the part of the
Trustee, arising out of or in connection with the administration of this trust
and its rights or duties hereunder, including the
70
reasonable costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity. The Company and the
Guarantors shall defend the claim and the Trustee shall provide reasonable
cooperation at the Company's and the Guarantors' expense in the defense. The
Trustee may have separate counsel and the Company and the Guarantors shall pay
the reasonable fees and expenses of such counsel; provided, that the Company and
the Guarantors will not be required to pay such fees and expenses if they assume
the Trustee's defense and there is no conflict of interest between the Company
and the Guarantors and the Trustee in connection with such defense. The Company
and the Guarantors need not pay for any settlement made without their written
consent; provided, that such consent shall not be unreasonably withheld. The
Company and the Guarantors need not reimburse any expense or indemnify against
any loss or liability to the extent incurred by the Trustee through its
negligence, bad faith or willful misconduct. If the Trustee is required to
participate in any court, foreclosure or other proceedings related to the
interpretation or enforcement of the provisions of this Indenture, its fees and
expenses shall be increased to cover all its reasonable out-of-pocket expenses
and internal costs associated in its participating in the same.
(3) To secure the Company's and the Guarantors' payment obligations
in this Section 7.7, the Trustee shall have a lien prior to the Securities on
all assets held or collected by the Trustee, in its capacity as Trustee, except
assets held in trust to pay principal and premium, if any, of or interest on,
particular Securities. If any property other than cash shall at any time be
subject to the lien of this Indenture, the Trustee, if and to the extent
authorized by a receivership or bankruptcy court of competent jurisdiction or by
the supplemental instrument subjecting such property to such lien, shall be
entitled, but shall not be required, to make advances for the purpose of
preserving such property or of discharging tax liens or other prior liens or
encumbrances thereon.
(4) When the Trustee incurs expenses or renders services after an
Event of Default specified in Sections 6.1(4) or 6.1(5) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
(5) The Company's and the Guarantors' obligations under this Section
7.7 and any lien arising hereunder shall survive the resignation or removal of
the Trustee, the discharge of the Company's and the Guarantors' obligations
pursuant to Article VIII of this Indenture and any rejection or termination of
this Indenture under any Bankruptcy Law.
Section 7.8 Replacement of Trustee.
----------------------
(1) The Trustee may resign at any time by so notifying the Company in
writing. The Holder or Holders of a majority in aggregate principal amount of
the outstanding Securities may remove the Trustee by so notifying the Company
and the Trustee in writing and may appoint a successor trustee with the
Company's consent. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver, Custodian or other public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
(2) If the Trustee resigns or is removed or if a vacancy exists in
the office of the Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holder or Holders of a majority in principal amount of the Securities may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
71
(3) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that
and provided that all sums owing to the retiring Trustee provided for in Section
7.7 have been paid, the retiring Trustee shall transfer all property held by it
as trustee to the successor Trustee, and subject to the lien provided in Section
7.7, the resignation or removal of the retiring Trustee shall become effective,
and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder.
(4) 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 Holder or Holders of at least 10% in principal amount of the outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
(5) If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
(6) Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Company's and the Guarantors' obligations under Section 7.7
shall continue for the benefit of the retiring Trustee.
(7) Upon its resignation or removal, the Trustee shall be entitled to
the prompt payment by the Company of its compensation and reimbursement of all
reasonable out-of-pocket expenses up to the effective date of resignation or
removal (including, without limitation, the reasonable fees and expenses of
counsel, if any), incurred in connection with the performance of such services.
Section 7.9 Successor Trustee by Merger, Etc.
--------------------------------
If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the resulting, surviving or transferee corporation without any further act
shall, if such resulting, surviving or transferee corporation is otherwise
eligible hereunder, be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
-----------------------------
The Trustee shall at all times satisfy the requirements of TIA Section
310(a)(1), (2) and (5). The Trustee shall have a combined capital and surplus of
at least $25,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA Section 310(b).
Section 7.11 Preferential Collection of Claims Against Company.
-------------------------------------------------
The Trustee shall comply with 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.
Section 7.12 Appointment of Co-Trustee.
-------------------------
(1) It is the purpose of this Indenture that there shall be no
violation of any law of any jurisdiction denying or restricting the right of
banking corporations or associations to transact business as trustee in such
jurisdiction. It is recognized that in case of litigation under this Indenture,
and in particular in case of the enforcement thereof on default, or in the case
the Trustee deems that by
72
reason of any present or future law of any jurisdiction it may not exercise any
of the powers, rights or remedies herein granted to the Trustee or hold title to
the properties, in trust, as herein granted or take any action which may be
desirable or necessary in connection therewith, it may be necessary that the
Trustee appoint an individual or institution as a separate or co-trustee. The
following provisions of this Section are adopted to these ends.
(2) In the event that the Trustee appoints an additional individual
or institution as a separate or co-trustee, each and every remedy, power, right,
claim, demand, cause of action, immunity, estate, title, interest and lien
expressed or intended by this Indenture to be exercised by or vested in or
conveyed to the Trustee with respect thereto shall be exercisable by and vest in
such separate or co-trustee but only to the extent necessary to enable such
separate or co-trustee to exercise such powers, rights and remedies, and only to
the extent that the Trustee by the laws of any jurisdiction is incapable of
exercising such powers, rights and remedies and every covenant and obligation
necessary to the exercise thereof by such separate or co-trustee shall run to
and be enforceable by either of them.
(3) Should any instrument in writing from the Company be required by
the separate or co-trustee so appointed by the Trustee for more fully and
certainly vesting in and confirming to it such properties, rights, powers,
trusts, duties and obligations, any and all such instruments in writing shall,
on request, be executed, acknowledged and delivered by the Company; provided,
that if an Event of Default shall have occurred and be continuing, if the
Company does not execute any such instrument within fifteen (15) days after
request therefor, the Trustee shall be empowered as an attorney-in-fact for the
Company to execute any such instrument in the Company's name and stead. In case
any separate or co-trustee or a successor to either shall die, become incapable
of acting, resign or be removed, all the estates, properties, rights, powers,
trusts, duties and obligations of such separate or co-trustee, so far as
permitted by law, shall vest in and be exercised by the Trustee until the
appointment of a new trustee or successor to such separate or co-trustee.
(4) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(a) all rights and powers, conferred or imposed upon the Trustee
shall be conferred or imposed upon and may be exercised or performed by
such separate trustee or co-trustee; and
(b) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder.
(5) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article.
(6) Any separate trustee or co-trustee may at any time appoint the
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Indenture on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
73
ARTICLE VIII
DISCHARGE; LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1 Discharge; Option to Effect Legal Defeasance or Covenant
--------------------------------------------------------
Defeasance.
----------
(1) This Indenture shall be discharged and cease to be of further
effect (except as to surviving rights of registration of transfer or exchange of
the Securities and except that the Company's and the Guarantors' obligations
under Section 7.7 and the Trustee's and the Paying Agent's obligations under
Sections 8.6 and 8.7 shall survive) when:
(a) either (i) all outstanding Securities theretofore authenticated
and issued have been delivered (other than destroyed, lost or stolen
Securities that have been replaced or paid and Securities for whose payment
money has previously been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged
from such trust) to the Trustee for cancellation and the Company or the
Guarantors have paid all sums payable hereunder; or (ii) all such
Securities that have not been previously delivered to the Trustee for
cancellation have become due and payable or will become due and payable
within one year or are to be called for redemption within one year upon
arrangements reasonably satisfactory for the Trustee for the giving of
notice of redemption, and the Company 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 or U.S. Government
Obligations, 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 Securities not delivered to
such Trustee for cancellation for principal, premium, if any, Liquidated
Damages, if any, and Additional Amounts, if any, and accrued interest to
the date of maturity or redemption and the Trustee for itself and for the
benefit of the Holders of the Securities have a valid, perfected, exclusive
security interest in such trust,
(b) the Company has paid all sums payable by it under this Indenture;
(c) the Company has delivered irrevocable instructions to the Trustee
to apply the deposited money toward the payment of the Securities at
maturity or the redemption date, as the case may be;
(d) no Default or Event of Default with respect to the Securities
shall have occurred and be continuing at the time of such deposit; and
(e) such deposit will not result in a breach or violation of, or
constitute a default, under any other material agreement or instrument to
which ASAT Holdings or any Subsidiary is a party or by which ASAT Holdings
or any Subsidiary is bound.
In addition, the Company must deliver an Officers' Certificate and an
Opinion of Counsel stating that the Company has complied with all conditions
precedent to the satisfaction and discharge of this Indenture.
(2) In addition, the Company may elect to have Section 8.2 or Section
8.3, at the Company's option at any time, of this Indenture applied to all
outstanding Securities upon compliance with the conditions set forth below in
this Article VIII.
Section 8.2 Legal Defeasance and Discharge.
------------------------------
Upon the Company's exercise under Section 8.1 of the option applicable to
this Section 8.2, the Company and the Guarantors shall be deemed to have been
discharged from their respective obligations with respect to all outstanding
Securities on the date the conditions set forth below are
74
satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal
Defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the Securities, the Guarantees and this
Indenture and this Indenture shall cease to be of further effect as to all
outstanding Securities and Guarantees, except as to be deemed to be
"outstanding" only for the purposes of Section 8.5 and the other Sections of
this Indenture referred to in (a) and (b) below, and the Company and the
Guarantors shall be deemed to have satisfied all other of their respective
obligations under such Securities 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 which shall survive until
otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Securities to receive payments in respect of the principal of,
premium, if any, and interest (and Liquidated Damages, if any, and Additional
Amounts, if any) on such Securities when such payments are due from the trust
described in Section 8.5, (b) the Company's obligations with respect to such
Securities under Sections 2.4, 2.6, 2.7, 2.10, 4.2, 8.5, 8.6 and 8.7 and (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company's and the Guarantors' obligations in connection therewith. Subject to
compliance with this Article VIII, the Company may exercise its option under
this Section 8.2 notwithstanding the prior exercise of its option under Section
8.3 with respect to the Securities.
Section 8.3 Covenant Defeasance.
-------------------
Upon the Company's exercise under Section 8.1 of the option applicable to
this Section 8.3, the Company and the Guarantors shall be released from their
respective obligations under the covenants contained in Sections 4.3, 4.6, 4.7,
4.8, 4.10, 4.11, 4.12, 4.14, 4.16, 4.17, 4.18 and 4.20, Article V, Article X and
Article XI with respect to the outstanding Securities on and after the date the
conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"),
and the Securities shall 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 shall
continue to be deemed "outstanding" for all other purposes hereunder. For this
purpose, such Covenant Defeasance means that, with respect to the outstanding
Securities, neither the Company nor any Guarantor need comply with or shall have
any 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, but, except as
specified above, the remainder of this Indenture and such Securities shall be
unaffected thereby. In addition, upon the Company's exercise under Section 8.1
of the option applicable to this Section 8.3 and in satisfaction of the
conditions set forth in Section 8.4, payment of the Securities may not be
accelerated because of an Event of Default specified in Sections 6.1(3) (with
respect to the covenants contained in Sections 4.3, 4.5 through 4.8, 4.10
through 4.12, 4.14 through 4.18, 4.20 and 4.22 and Article V, Article X and
Article XI hereof) and 6.1(6) through 6.1(9).
Section 8.4 Conditions to Legal or Covenant Defeasance.
------------------------------------------
(1) The following shall be the conditions to the application of
either Section 8.2 or 8.3 to the outstanding Securities:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 7.10 who shall agree to comply with the provisions of this
Article VIII applicable to it), in trust, for the benefit of the Holders of
the Securities, cash, U.S. Government Obligations, 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 accountants to pay the principal of, premium, if any, and
interest (and Liquidated Damages, if any, and Additional Amounts, if any)
on such outstanding Securities on the stated date for payment thereof or on
the redemption date of such principal or installment of principal of,
premium, if any, or interest on such Securities, and the Trustee for the
benefit of the Holders of Securities or the Holders of Securities must have
a valid, perfected, and exclusive security interest in such trust,
75
(b) in the case of Legal Defeasance, the Company shall have delivered
to the Trustee an Opinion of Counsel in the United States of America
reasonably acceptable to the Trustee confirming that (i) the Company has
received from, or there has been published by, the Internal Revenue Service
a ruling or (ii) since the date of this Indenture, 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 shall confirm that, the
Holders of such outstanding Securities will not recognize income, gain or
loss for United States federal income tax purposes as a result of such
Legal Defeasance and will be subject to United States 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;
(c) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States of
America reasonably acceptable to such Trustee confirming that the Holders
of such outstanding Securities will not recognize income, gain or loss for
United States federal income tax purposes as a result of such Covenant
Defeasance and will be subject to United States 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;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or in the case of Legal Defeasance
insofar as Events of Default from bankruptcy or insolvency events are
concerned, at any time in the period ending on the 91st day after the date
of deposit;
(e) such Legal Defeasance or Covenant Defeasance will not result in a
breach or violation of, or constitute a default under any other material
agreement or instrument to which the Company, ASAT Holdings or any of its
Restricted Subsidiaries is a party or by which any of the foregoing are
bound;
(f) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of such Securities over the other
creditors or with the intent of defeating, hindering, delaying or
defrauding other creditors or others; and
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that the conditions
precedent provided for in, in the case of the Officers' Certificate,
clauses (a) through (f) of this Section 8.4(1) and, in the case of the
Opinion of Counsel, clauses (a) (with respect to the validity and
perfection of the security interest) (b), (c) and (e) of this Section
8.4(1), have been complied with and in the case of a Covenant Defeasance
the Company shall have delivered to the Trustee an Officers' Certificate,
subject to such qualifications and exceptions as the Trustee deems
appropriate, to the effect that, assuming no Holder of the Securities is an
insider or affiliate of ASAT Holdings or any of its Subsidiaries, the trust
funds will not be subject to the effect of any applicable federal
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally.
(2) If the funds deposited with the Trustee to effect Covenant
Defeasance are insufficient to pay the principal of, premium, if any, and
interest on Liquidated Damages, if any, and Additional Amounts, if any, on the
Securities when due, then the obligations of the Company and the Guarantors
under this Indenture will be revived and such defeasance will be deemed not to
have occurred.
76
Section 8.5 Deposited Cash and U.S. Government Obligations to be Held in
-------------------------------------------------------------
Trust; Other Miscellaneous Provisions.
-------------------------------------
(1) Subject to Section 8.6, all cash and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.5, the "Trustee") pursuant
to Section 8.4 in respect of the outstanding Securities shall be held in trust
and applied by the Trustee, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through any Paying Agent
as the Trustee may determine, to the Holders of such Securities of all sums due
and to become due thereon in respect of principal, premium, if any, and interest
(and Liquidated Damages, if any, and Additional Amounts, if any), but such money
need not be segregated from other funds except to the extent required by law.
(2) The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 8.4 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 outstanding Securities.
Section 8.6 Repayment to the Company.
------------------------
(1) Anything in this Article VIII to the contrary notwithstanding,
the Trustee or the Paying Agent shall deliver or pay to the Company from time to
time upon the request of the Company any cash or U.S. Government Obligations
held by it as provided in Section 8.4 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 8.4(1)), are in excess of the amount thereof that would
then be required to be deposited to effect an equivalent Legal Defeasance or
Covenant Defeasance.
(2) Any cash and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee or any Paying Agent, or then held by the
Company or the Guarantors, in trust for the payment of the principal of,
premium, if any, or interest (and Liquidated Damages, if any, and Additional
Amounts, if any) on any Security and remaining unclaimed for two years after
such principal, and premium, if any, or interest has become due and payable
shall be paid to the Company or such Guarantor, as the case may be, on its
request; and the Holder of such Security shall thereafter look only to the
Company or such Guarantor for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money shall 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) and, so long as the Securities are listed on the SGX, in a daily
newspaper of general circulation in Singapore which is expected to be the
Business Times, notice that such money remains unclaimed and that, after a date
specified therein, which shall 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 8.7 Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any cash or U.S.
Government Obligations in accordance with Section 8.2 or 8.3, as the case may
be, of this Indenture 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 Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.2 or 8.3 until such time as the
Trustee or Paying Agent is permitted to apply such money in accordance with
Sections 8.2 and 8.3, as the case may be; provided, however, that, if the
Company makes any payment or principal of, premium, if any, or interest (and
Liquidated Damages, if any, and Additional Amounts, if any) on any Security
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
cash or U.S. Government Obligations held by the Trustee or Paying Agent.
77
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1 Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holder, the Company or any Guarantor, when
authorized by Board Resolutions, and the Trustee, at any time and from time to
time, may amend or enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(1) to cure any ambiguity, defect, omission or inconsistency, or make
any other provisions with respect to matters or questions arising under this
Indenture which shall not be inconsistent with the provisions of this Indenture,
provided such action pursuant to this clause (1) shall not adversely affect the
interests of any Holder in any respect;
(2) to add to the covenants of the Company or the Guarantors for the
benefit of the Holders, or to surrender any right or power herein conferred upon
the Company or the Guarantors or make any other change that does not adversely
affect the rights of any Holder;
(3) to secure the Securities or add Guarantors of the Securities;
(4) to evidence the succession of another Person to the Company or a
Guarantor, the assumption by any such successor of the obligations of the
Company or any Guarantor and the release of the Company or any Guarantor, in
accordance with this Indenture;
(5) to comply with the TIA;
(6) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities;
(7) in any other case where a supplemental indenture is required or
permitted to be entered into pursuant to the provisions of this Indenture
without the consent of any Holder;
(8) to provide for the issuance and authorization of the Exchange
Securities;
(9) to effect any changes to Section 2.6 in a manner necessary to
comply with procedures of the Securities Custodian or the Depository, provided
such action pursuant to this clause (9) shall not adversely affect the interests
of any Holder in any respect;
(10) to provide for uncertificated Securities in addition to or in
place of certificated Securities in a manner that does not adversely impact
Holders; and
(11) to make any change that does not adversely affect the rights
under this Indenture of any such Holder.
Section 9.2 Amendments, Supplemental Indentures and Waivers with Consent
------------------------------------------------------------
of Holders.
----------
(1) Subject to Section 6.8, with the consent of the Holders of a
majority in aggregate principal amount of the Securities then outstanding
(including consents obtained in connection with a tender offer or exchange offer
for such Securities), by written act of said Holders delivered to the Company
and the Trustee, the Company, and as applicable, any Guarantor, when
78
authorized by Board Resolutions, and the Trustee may amend or supplement this
Indenture, the Securities or the Guarantees or enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture,
the Securities or the Guarantees or of modifying in any manner the rights of the
Holders under this Indenture or the Securities; provided that (i) provisions
relating to the Change of Control Purchase Price shall require unanimous
approval of all Holders and (ii) following any Change of Control and through the
Change of Control Purchase Date related to that Change of Control, all
provisions under this Indenture relating the Company's obligations described in
Article X require unanimous approval of all Holders. Section 2.8 hereof shall
determine which Securities are considered "outstanding" for purposes of this
Section 9.2. Subject to Sections 6.8 and 6.12, the Holder or Holders of not less
than a majority in aggregate principal amount of then outstanding Securities may
waive compliance by the Company or any Guarantor with any provision of this
Indenture or the Securities. Notwithstanding any of the above, however, no such
amendment, supplemental indenture or waiver shall, without the consent of the
Holder of each outstanding Security affected thereby:
(a) change the Stated Maturity on any Security, or reduce the
principal amount thereof or the rate (or extend the time for payment) of
interest thereon or any premium payable upon the redemption thereof
(including under Section 3.1) at the Company's option or the amount of
Liquidated Damages or Additional Amounts payable thereunder, or change the
place of payment where, or the coin or currency in which, any Security or
any premium, the interest, Liquidated Damages or Additional Amounts (if
any) thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or
in the case of redemption at the Company's option, on or after the
Redemption Date), or reduce the Change of Control Purchase Price, any
provision relating to the Company's obligations described in Article X or
the Asset Sale Offer Price after the corresponding Asset Sale or following
a Change of Control through the Change of Control Purchase Date related to
that Change of Control or change the time or price at which any Security
may be redeemed pursuant to Article III in a manner adverse to the Holders;
or
(b) reduce the percentage in principal amount of the outstanding
Securities, the consent of whose Holders is required for any such
amendment, supplemental indenture or wavier provided for in this Indenture;
or
(c) modify any of the waiver provisions, except to increase any
required percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of
each outstanding Security affected thereby; or
(d) cause the Securities or any Guarantees to become contractually
subordinate in right of payment to any other Indebtedness.
(2) For the purpose of determining a percentage of aggregate
principal amount of Securities outstanding at any time, Securities held by the
Company, ASAT Holdings, any Guarantor or any of their respective affiliates
shall be deemed not to be outstanding.
(3) It shall not be necessary for the consent of the Holders under
this Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
(4) After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture or
waiver.
79
(5) After an amendment, supplement or waiver under this Section 9.2
or under Section 9.4 becomes effective, it shall bind each Holder.
(6) In connection with any amendment, supplement or waiver under this
Article IX, the Company may, but shall not be obligated to, offer to any Holder
who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
Section 9.3 Compliance with TIA.
-------------------
Every amendment, waiver or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
Section 9.4 Revocation and Effect of Consents.
---------------------------------
(1) Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to his Security or portion of his Security by written notice to
the Company or the Person designated by the Company as the Person to whom
consents should be sent if such revocation is received by the Company or such
Person before the date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal amount of Securities have
consented (and not theretofore revoked such consent) to the amendment,
supplement or waiver.
(2) The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be the date so fixed by the
Company notwithstanding the provisions of the TIA. If a record date is fixed,
then notwithstanding the last sentence of the immediately preceding paragraph,
those Persons who were Holders at such record date, and only those Persons (or
their duly designated proxies), shall be entitled to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date.
(3) After an amendment, supplement or waiver becomes effective, it
shall bind every Securityholder, unless it makes a change described in any of
clauses (a) through (d) of paragraph (1) of Section 9.2, in which case, the
amendment, supplement or waiver shall bind only each Holder of a Security who
has consented to it and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's Security;
provided, that any such waiver shall not impair or affect the right of any
Holder to receive payment of principal and premium of and interest (and
Liquidated Damages, if any, and Additional Amounts, if any) on a Security, on or
after the respective dates set for such amounts to become due and payable
expressed in such Security, or to bring suit for the enforcement of any such
payment on or after such respective dates.
Section 9.5 Notation on or Exchange of Securities.
-------------------------------------
If an amendment, supplement or waiver changes the terms of a Security, the
Trustee may require the Holder of the Security to deliver it to the Trustee or
require the Holder to put an appropriate notation on the Security. The Trustee
may place an appropriate notation on the Security about the changed terms and
return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the Trustee
shall authenticate a new Security that reflects the changed terms. Any failure
to make the appropriate notation or to issue a new Security shall not affect the
validity of such amendment, supplement or waiver.
Section 9.6 Trustee to Sign Amendments, Etc.
-------------------------------
80
The Trustee shall execute any amendment, supplement or waiver authorized
pursuant to this Article IX; provided, that the Trustee may, but shall not be
obligated to, execute any such amendment, supplement or waiver which affects the
Trustee's own rights, duties or immunities under this Indenture. The Trustee
shall be entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of any amendment, supplement or
waiver authorized pursuant to this Article IX is authorized or permitted by this
Indenture.
ARTICLE X
RIGHT OF HOLDERS TO REQUIRE REPURCHASE OF SECURITIES
Section 10.1 Repurchase of Securities Upon a Change of Control.
-------------------------------------------------
(1) In the event that a Change of Control has occurred,
(a) the Company must notify each Holder of Securities within 30 days
following such Change of Control; and
(b) each Holder of Securities will have the right, at such Holder's
option, pursuant to an offer (subject only to conditions required by
applicable law, if any) by the Company (the "Change of Control Offer"), to
require the Company to repurchase all or any part of such Holder's
Securities (provided, that the principal amount of such Securities must be
$1,000 or an integral multiple thereof) on a date (the "Change of Control
Purchase Date") that is no later than 60 days after the occurrence of such
Change of Control, at a cash price equal to 101% of the principal amount
thereof (the "Change of Control Purchase Price"), together with accrued and
unpaid interest and Liquidated Damages, if any, and Additional Amounts, if
any, to the Change of Control Purchase Date.
(2) On or before the Change of Control Purchase Date, the Company
shall:
(a) accept for payment Securities or portions thereof properly and
timely tendered pursuant to the Change of Control Offer,
(b) deposit with the Paying Agent for the Company cash or U.S.
Government Obligations sufficient to pay the Change of Control Purchase
Price (together with accrued and unpaid interest and Liquidated Damages, if
any, and Additional Amounts, if any) of all Securities so tendered to, but
not including, the Change of Control Purchase Date, and
(c) deliver to the Trustee the Securities so accepted together with
an Officers' Certificate listing the Securities or portions thereof being
purchased by the Company.
The Paying Agent promptly will pay the Holders of Securities so accepted an
amount equal to the Change of Control Purchase Price (together with accrued and
unpaid interest and Liquidated Damages, if any, and Additional Amounts, if any,
to, but not including, the Change of Control Purchase Date) and the Trustee
promptly will authenticate and deliver to such Holders a new Security equal in
principal amount to any unpurchased portion of the Security surrendered. Any
Securities not so accepted will be delivered promptly by the Company to the
Holder thereof. The Company publicly will announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Purchase
Date.
(3) Notwithstanding anything in this Article X to the contrary, in
the event a Change of Control occurs at a time when the Company is prohibited
from purchasing Securities under a Credit Agreement, prior to the mailing of the
notice to the Holders as set forth in paragraph (1)(a) above, but in any event
within 30 days following any Change of Control, the Company shall:
81
(a) repay in full all Indebtedness outstanding under such Credit
Agreement or offer to repay in full all such Indebtedness and repay the
Indebtedness owed to each lender which has accepted such offer; or
(b) obtain the requisite consents under the Credit Agreement to the
making of the Change of Control Offer and the purchase of the Securities
under this Section 10.1.
The Company's failure to comply with the preceding sentence or to make a
Change of Control Offer shall constitute an Event of Default described in
Section 6.1(3).
(4) In the event that, pursuant to this Section 10.1, the Company
shall be required to commence a Change of Control Offer, the Company shall
follow the procedures set forth in this Section 10.1 as follows:
(a) the Change of Control Offer shall commence within 30 days
following the occurrence of a Change of Control;
(b) the Change of Control Offer shall remain open for 20 Business
Days following its commencement (the "Change of Control Offer Period");
(c) upon the expiration of the Change of Control Offer Period, the
Company promptly shall purchase all of the tendered Securities at the
Change of Control Purchase Price in response to the Change of Control
Offer;
(d) the Company shall provide the Trustee and the Paying Agent with
written notice of the Change of Control Offer at least three Business Days
before the commencement of any Change of Control Offer; and
(e) on or before the commencement of any Change of Control Offer, the
Company or the Trustee (upon the request and at the expense of the Company)
shall send, by first-class mail, a notice to each of the Securityholders,
which (to the extent consistent with this Indenture) shall govern the terms
of the Change of Control Offer and shall state:
(i) that the Change of Control Offer is being made pursuant to
this Section 10.1 and that all Securities, or portions thereof,
tendered will be accepted for payment;
(ii) the Change of Control Purchase Price (including the amount
of accrued but unpaid interest (and Liquidated Damages, if any, and
Additional Amounts, if any)) and the Change of Control Purchase Date;
(iii) that any Security, or portion thereof, not tendered or
accepted for payment will continue to accrue interest;
(iv) that, unless the Company defaults in depositing cash with
the Paying Agent in accordance with this Section 10.1, or such payment
is prevented for any reason, any Security, or portion thereof,
accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Purchase Date;
(v) that Holders electing to have a Security, or portion
thereof, purchased pursuant to a Change of Control Offer will be
required to surrender the Security, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Security completed, to
the Paying Agent (which may not for purposes of this Section 10.1,
notwithstanding anything in this Indenture to the contrary, be the
Company or any Affiliate of the Company) at the address specified in
the notice prior to the expiration of the Change of Control Offer;
82
(vi) that Holders will be entitled to withdraw their election,
in whole or in part, if the Paying Agent receives, prior to the
expiration of the Change of Control Offer, a facsimile transmission or
letter setting forth the name of the Holder, the principal amount of
the Securities the Holder is withdrawing and a statement containing a
facsimile signature and stating that such Holder is withdrawing his
election to have such principal amount of Securities purchased;
(vii) that Holders whose Securities are purchased only in part
will be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered; and
(viii) a brief description of the events resulting in such Change
of Control.
(5) Any Change of Control Offer shall be made in compliance with all
applicable laws, rules and regulations, including, if applicable, Regulation 14E
under the Exchange Act and the rules thereunder and all other applicable United
States federal and state securities laws. To the extent that the provisions of
any securities laws or regulations conflict with the provisions of this Section
10.1, compliance by the Company or any Guarantor with such laws and regulations
shall not in and of itself cause a breach of Company's or any Guarantor's
obligations under this Section 10.1.
(6) If the Change of Control Purchase Date hereunder is on or after
an interest payment Record Date and on or before the associated Interest Payment
Date, any accrued and unpaid interest (and Liquidated Damages, if any, and
Additional Amounts, if any) due on such Interest Payment Date will be paid to
the Person in whose name a Security is registered at the close of business on
such Record Date, and such interest (and Liquidated Damages and Additional
Amounts, if applicable) will not be payable to Holders who tender the Securities
pursuant to the Change of Control Offer who were not Holders as of such Record
Date.
(7) In the event of a Change of Control, if the Securities are then
listed on the SGX, and it is required by the rules of the SGX, the Company will
publish a notice in a daily newspaper of general circulation in Singapore (or,
if the Holders of any Securities can be identified, notices to such Holders
shall also be valid if they are given to each of such Holders). It is expected
that such publication be made in the Business Times. Notices will, if published
more than once or on different dates, be deemed to have been given on the date
of the first publication in such newspaper. Notice shall also be given to the
SGX.
Notwithstanding anything in this Indenture in any case where the
identity and addresses of all the Holders of the Securities are known to the
Company, notices to such Holders may be given individually by recorded delivery
mail to such addresses and will be deemed to have been given when received at
such addressed.
ARTICLE XI
GUARANTEE
Section 11.1 Guarantee.
---------
83
(1) ASAT Holdings and all of ASAT Holdings' present and future
Restricted Subsidiaries that are not (1) Designated Non-Guarantors; (2)
Restricted Subsidiaries to which Section 11.1(7) applies; (3) the Company and
(4) ASAT (Finance) LLC until either (a) it is permitted to become a Guarantor
under Section 4.20 of the Senior Notes due 2006 Indenture and (b) such Section
4.20 is no longer in effect ((1) through (4), collectively "Exempt Subsidiaries"
and individually an "Exempt Subsidiary"), shall jointly and severally guaranty
fully, irrevocably and unconditionally, to the fullest extent permitted by
applicable law, to each Holder of a Security authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability against ASAT Holdings, ASAT Limited and any other
Guarantors of this Indenture, the Securities or the obligations of the Company
under this Indenture or the Securities, that:
(a) the principal of and premium (if any), and interest (and
Liquidated Damages, if any, and Additional Amounts, if any) on the
Securities will be paid in full when due, whether at the Stated Maturity or
Interest Payment Date, by acceleration, call for redemption, upon a Change
of Control, an Asset Sale Offer or otherwise;
(b) all other obligations of the Company to the Holders or the
Trustee under this Indenture or the Securities will be promptly paid in
full or performed, all in accordance with the terms of this Indenture and
the Securities;
(c) in case of any extension of time of payment or renewal of any
Securities or any of such other obligations, they will be paid in full when
due or performed in accordance with the terms of the extension or renewal,
whether at maturity, by acceleration, call for redemption, upon a Change of
Control, an Asset Sale Offer or otherwise; and
(d) the Company and each of the Guarantors shall give prompt written
notice to the Trustee of any fact known to the Company or such Guarantor
that would prohibit any Guarantor from making any payment in respect of its
Guarantee.
Failing payment when due of any amount so guaranteed for whatever reason,
each Guarantor shall be obligated to pay the same before failure so to pay
becomes an Event of Default.
(2) If the Company or a Guarantor defaults in the payment of the
principal of, premium, if any, or interest (or Liquidated Damages, if any, or
Additional Amounts, if any) on, the Securities when and as the same shall become
due, whether upon maturity, acceleration, call for redemption, upon a Change of
Control Offer, upon an Asset Sale Offer or otherwise, without the necessity of
action by the Trustee or any Holder, each Guarantor shall be required, jointly
and severally, to promptly make such payment in full.
(3) Except for an Exempt Subsidiary, each Person that becomes a
Restricted Subsidiary of ASAT Holdings shall, within thirty days after becoming
a Restricted Subsidiary of ASAT Holdings, execute and deliver to the Trustee a
supplemental indenture, which shall be in a form reasonably satisfactory to the
Trustee, making such Person a party to this Indenture as a Guarantor providing a
Guarantee.
(4) Each Guarantor hereby agrees to the fullest extent permitted by
applicable law, that its obligations with regard to its Guarantee shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Securities or this Indenture or the obligations of the Company hereunder the
absence of any action to enforce the same, any delays in obtaining or realizing
upon or failures to obtain or realize upon collateral, the recovery of any
judgment against the Company, ASAT Holdings, ASAT Limited or any other
Guarantor, any action to enforce the same or any other circumstances that might
otherwise constitute a legal or equitable discharge or defense of a Guarantor.
Each Guarantor further agrees that subject to Section 11.4, each Guarantee will
not be discharged except by complete performance of the obligations of the
Company under the Securities and this Indenture. Without limiting the foregoing,
each Guarantor agrees that, to the fullest extent permitted
84
by applicable law and subject to Section 11.4, neither its liability nor the
validity or enforceability of the Guarantee shall be prejudiced, affected or
discharged by: (a) any variation or modification of the Indenture or the
Securities or any other document referred to therein; (b) the invalidity or
unenforceability of any obligation or liability of any one or more of the
Guarantors under the Indenture or the Securities; (c) the insolvency, bankruptcy
or liquidation or any incapacity, disability or limitation or any change in the
constitution or status of any one or more of the Guarantors; (d) any waiver,
exercise, omission to exercise, compromise, renewal or release of any rights
against any one or more of the Guarantors or any other person or any compromise,
arrangement or settlement with any of the same; and (e) any act, omission, event
or circumstance which would or may but for this provision operate to prejudice,
affect or discharge this Indenture or the Securities or the liability of the
Guarantors and the Company hereunder. Without prejudice to the generality of the
foregoing sentence, each Guarantor agrees that, to the fullest extent permitted
by applicable law, the Trustee may release any of the Guarantors from liability
under the Guarantees or vary or modify the obligations of or grant any time or
indulgence to or make any other arrangements with any of the Guarantors without
affecting or discharging its rights against the other Guarantors provided any
release, modification or variation shall comply with the terms of this
Indenture. Each Guarantor hereby waives to the fullest extent permitted by
applicable law diligence, presentment, demand of payment, filing of claims with
a court in the event of insolvency or bankruptcy of the Company, ASAT Holdings,
ASAT Limited or any other Guarantor, any right to require a proceeding first
against the Company or any other Guarantor or any right to require the prior
disposition of the assets of the Company, ASAT Holdings, ASAT Limited or any
other Guarantor to meet its obligations, protest, notice and all demands
whatsoever and covenants that its Guarantee will not be discharged except by
complete performance of the obligations contained in the Securities and this
Indenture.
(5) If any Holder or the Trustee is required by any court or
otherwise to return to either the Company, ASAT Holdings, ASAT Limited or any
Guarantor, or any Custodian or similar official acting in relation to either
Company, ASAT Holdings, ASAT Limited or such Guarantor, any amount paid by
either the Company, ASAT Holdings or ASAT Limited or such Guarantor to the
Trustee or such Holder, this Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect. Each Guarantor agrees that it will
not be entitled to any right of subrogation in relation to the Holders in
respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Each Guarantor further agrees that, as between
such Guarantor, on the one hand, and the Holders and the Trustee, on the other
hand, (i) the maturity of the obligations guaranteed hereby may be accelerated
as provided in Article VI for the purposes of this Guarantee, notwithstanding
any stay, injunction or other prohibition preventing such acceleration as to the
Company, ASAT Holdings, ASAT Limited or any other Guarantor of the obligations
guaranteed hereby, and (ii) in the event of any declaration of acceleration of
those obligations as provided in Article VI, those obligations (whether or not
due and payable) will forthwith become due and payable by each of the Guarantors
for the purpose of this Guarantee.
(6) It is the intention of each Guarantor and the Company that the
obligations of each Guarantor hereunder shall be in, but not in excess of, the
maximum amount permitted by applicable law. Accordingly, if the obligations in
respect of the Guarantee would be annulled, avoided or subordinated to the
creditors of any Guarantor by a court of competent jurisdiction in a proceeding
actually pending before such court as a result of a determination both that such
Guarantee was made by such Guarantor without fair consideration and, immediately
after giving effect thereto, such Guarantor was insolvent or unable to pay its
debts as they mature or left with an unreasonably small capital, then the
obligations of such Guarantor under such Guarantee shall be reduced by such
court if and to the extent such reduction would result in the avoidance of such
annulment, avoidance or subordination; provided, however, that any reduction
pursuant to this paragraph shall be made in the smallest amount as is strictly
necessary to reach such result. For purposes of this Section 11.1(6), "fair
consideration," "insolvency," "unable to pay its debts as they mature,"
"unreasonably small capital" and the effective times of reductions, if any,
required by this paragraph shall be determined in accordance with applicable
law.
85
(7) In the event ASAT Holdings or a Restricted Subsidiary forms or
otherwise acquires, directly or indirectly, a Restricted Subsidiary organized
under the laws of a jurisdiction that prohibits by law, regulation or order such
Restricted Subsidiary from providing a Guarantee, the Company and ASAT Holdings
shall use all commercially reasonable efforts, including pursuing required
waivers, over a period up to one year, to provide the Guarantee by such
Restricted Subsidiary; provided, however, that the Company and ASAT Holdings
shall not be required to use commercially reasonable efforts relating to such
Restricted Subsidiary for more than a one-year period or such shorter period as
ASAT Holdings shall determine in good faith that it has used all commercially
reasonable efforts. If ASAT Holdings or the Restricted Subsidiary is unable
during the period to procure an enforceable Guarantee by such Restricted
Subsidiary so formed or acquired in the jurisdiction in which such Restricted
Subsidiary is organized, then such Restricted Subsidiary so formed or acquired
shall not be required to provide a Guarantee of the Security hereunder so long
as such Restricted Subsidiary does not Guarantee any other Indebtedness of ASAT
Holdings or its Restricted Subsidiaries (other than Designated Non-Guarantor
Subsidiaries); provided, however, that if there is a change in such law,
regulation or order following which such Restricted Subsidiary so formed or
acquired is not prohibited from providing a Guarantee under the laws of the
jurisdiction in which it was organized, the Company and ASAT Holdings shall
cause such Restricted Subsidiary to Guarantee the Securities promptly (but in
any event not later than 30 days) following ASAT Holdings becoming aware of such
change in law, regulation or order. The foregoing paragraph shall not apply to
any Designated Non-Guarantor Subsidiary.
(8) The Company may designate one or more Restricted Subsidiaries as
"Designated Non-Guarantor Subsidiaries"; provided that at all times during the
continuance of this Indenture the book value of the total assets of each such
Restricted Subsidiary (based on the balance sheet of such Restricted Subsidiary
used in the preparation of the most recent consolidated financial statements of
ASAT Holdings required to be delivered to the Trustee or, if sooner, filed with
the SEC) does not exceed the greater of $2.0 million and 5.0% of Net Tangible
Assets. No designation of a Restricted Subsidiary as a Designated Non-Guarantor
Subsidiary shall be effective against the trustee or the Holders until the
Company has delivered to the Trustee an Officer's Certificate stating that all
requirements relating to such designation have been complied with and that such
designation is authorized and permitted by this Indenture. The Company may at
any time designate a Designated Non-Guarantor Subsidiary as a Guarantor by
delivery to the Trustee of an Officers' Certificate and a supplemental indenture
making such Designated Non-Guarantor Subsidiary a Guarantor, at which time such
Designated Non-Guarantor Subsidiary shall become a Guarantor. As of the Issue
Date, the Designated Non-Guarantors are: ASAT, S.A., ASAT (Cayman) Limited, ASAT
(Finance) LLC, ASAT GmbH, ASAT Korea Limited, ASAT(S) Pte Ltd., Newhaven
Holdings Limited, RBR Trading Holding (Curacao) N.V. and R.B.R. Trading Holding
B.V.
(9) Notwithstanding the other provisions of this Article XI, at no
time during the continuance of this Indenture shall the aggregate book value of
the total assets of all Non-Guarantors (based on the balance sheets of such
Non-Guarantors used in the preparation of the most recent consolidated financial
statements of ASAT Holdings required to be delivered to the Trustee or, if
sooner, filed with the SEC) exceed 10% of the Net Tangible Assets of ASAT
Holdings and its Consolidated Restricted Subsidiaries (or the equivalent thereof
in applicable foreign currency).
(10) Notwithstanding anything to the contrary in this Indenture, on
request in writing by the Trustee, the Company will cause any Wholly-Owned
Subsidiary (whether formed or acquired before or after the date of this
Indenture) of the Company to become a Guarantor. For the purposes of this
Section 11.1, the definition of "Non-Guarantor" and "Designated Non-Guarantor
Subsidiary" shall exclude Wholly-Owned Subsidiaries of the Company.
Section 11.2 Execution and Delivery of Guarantee.
-----------------------------------
Each Guarantor shall, by virtue of such Guarantor's execution and delivery
of this Indenture or an indenture supplement pursuant to Section 11.1, be deemed
to have signed on each Security issued hereunder the notation of guarantee to
the same extent as if the signature of such Guarantor appeared on such Security.
86
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the guarantee set forth in
Section 11.1 on behalf of each Guarantor.
Section 11.3 Certain Bankruptcy Events.
-------------------------
Each Guarantor hereby covenants and agrees, to the fullest extent that it
may do so under applicable law, that in the event of the insolvency, bankruptcy,
dissolution, liquidation or reorganization of ASAT Holdings or the Company or
any other Subsidiary, such Guarantor shall not file (or join in any filing of),
or otherwise seek to participate in the filing of, any motion or request seeking
to stay or to prohibit (even temporarily) execution on the Guarantee and hereby
waives and agrees not to take the benefit of any such stay of execution, whether
under Section 362 or 105 of the United States of America Bankruptcy Code or
otherwise.
Section 11.4 Release of Guarantors.
---------------------
Upon (i) satisfaction of the conditions set forth in Sections 5.1 and 5.2
with respect to a Guarantor, (ii) the designation of a Guarantor to become an
Unrestricted Subsidiary, which transaction is otherwise in compliance with this
Indenture, (iii) any transaction which results in a Guarantor no longer being a
Restricted Subsidiary, which transaction is otherwise in compliance with this
Indenture and (iv) a Guarantor becoming an Exempt Subsidiary in accordance with
Section 11.1, such Guarantor will be deemed released from its obligations under
its Guarantee of the Securities.
ARTICLE XII
[RESERVED]
ARTICLE XIII
MISCELLANEOUS
Section 13.1 TIA Controls.
------------
If any provision of this Indenture limits, qualifies, or conflicts with the
duties imposed by operation of the TIA, the imposed duties, upon qualification
of this Indenture under the TIA, shall control.
Section 13.2 Notices.
-------
(1) Any notices or other communications to the Company or any
Guarantor or the Trustee required or permitted hereunder shall be in writing,
and shall be sufficiently given if made by hand delivery, by telecopier or
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
if to the Company or any Guarantor:
x/x XXXX Xxxxxxxx Xxxxxxx
00/xx/ Xxxxx, XXX Industrial Building
138 Texaco Road
Tsuen Wan, New Territories
Hong Kong
Attention: Chief Financial Officer
Telecopy: + 000-0000-0000
87
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
XXX
Attention: Xxxx Xxxx
Telecopy: x0-000-000-0000
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, XX 00000
Attn: Global Finance Unit
Telecopy: x0-000-000-0000
with a copy to:
The Bank of New York
Xxx Xxxxxxx Xxxxxx
#00-00 Xxxxxxxx Xxxxx
Xxxxxxxxx 000000
Attention: Global Trust Services
Telecopy: x00-0000-0000
(2) Any party by notice to each other party may designate additional
or different addresses as shall be furnished in writing by such party. Any
notice or communication to any party shall be deemed to have been given or made
as of the date so delivered, if personally delivered; when answered back, if
telecopied; and five Business Days after mailing if sent by registered or
certified mail, postage prepaid (except that a notice of change of address shall
not be deemed to have been given until actually received by the addressee);
provided that notices to the Trustee shall be deemed delivered upon actual
receipt thereof.
(3) Any notice or communication mailed to a Securityholder shall be
mailed to him by first class mail or other equivalent means at his address as it
appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
(4) Failure to mail a notice or communication to a Securityholder or
any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
(5) So long as the Securities are listed on the SGX and it is
required by the rules of the SGX, all notices to Holders will be published in a
daily newspaper of general circulation in Singapore (or, if the Holders of any
Securities can be identified, notices to such Holders may also be valid if they
are given to each of such Holders). It is expected that such publication be made
in the Business Times. Notices will, if published more than once or on different
dates, be deemed to have been given on the date of the first publication in such
newspaper. Notice shall also be given to the SGX.
88
Notwithstanding anything in this Indenture in any case where the
identity and addresses of all the Holders of the Securities are known to the
Company, notices to such Holders may be given individually by recorded delivery
mail to such addresses and will be deemed to have been given when received at
such addressed.
Section 13.3 Communications by Holders with Other Holders.
--------------------------------------------
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and any other Person shall
have the protection of TIA Section 312(c).
Section 13.4 Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company or any Guarantor to the
Trustee to take any action under this Indenture, such Person shall furnish to
the Trustee:
(1) an Officers' Certificate (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been met; and
(2) an Opinion of Counsel (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of such counsel, all
such conditions precedent have been met.
Section 13.5 Statements Required in Certificate or Opinion.
---------------------------------------------
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall 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 met; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been met; provided, however, that with
respect to matters of fact an Opinion of Counsel may rely on an Officers'
Certificate or certificates of public officials.
Section 13.6 Rules by Trustee, Paying Agent, Registrar.
-----------------------------------------
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for its
functions.
Section 13.7 Legal Holidays.
--------------
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in New York, New York are authorized or obligated by law or
executive order to close. If a payment date is a Legal Holiday at such place,
payment may be made at such place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
Section 13.8 Governing Law.
-------------
89
THIS INDENTURE, THE GUARANTEES AND THE SECURITIES SHALL BE CONSTRUED,
INTERPRETED AND THE RIGHTS OF THE PARTIES THERETO DETERMINED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS EXCEPT SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW
AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(B).
Section 13.9 Waiver of Jury Trial.
--------------------
EACH OF THE COMPANY, THE GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 13.10 No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or any Guarantor or any of their respective
Subsidiaries. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
Section 13.11 No Personal Liability of Partners, Stockholders, Officers,
----------------------------------------------------------
Directors.
---------
No direct or indirect stockholder, director, officer or employee, as such,
past, present or future, of the Company or the Guarantors (including ASAT
Holdings), or any successor entity, shall have any personal liability in respect
of the obligations of the Company and the Guarantors under the Securities, this
Indenture or for any claim based on, in respect of, or by reason of such
obligations or their creation by reason of his, her or its status as such
stockholder, director, officer or employee, except that this Section 13.10 shall
in no way limit the obligation of any Guarantor pursuant to any guarantee of the
Securities. Each Securityholder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the
issuance of the Securities.
Section 13.12 Successors.
----------
All agreements of the Company and the Guarantors in this Indenture and the
Securities shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.
Section 13.13 Duplicate Originals.
-------------------
All parties may sign any number of copies or counterparts of this
Indenture. Each signed copy or counterpart shall be an original, but all of them
together shall represent the same agreement.
Section 13.14 Severability.
------------
In case any one or more of the provisions in this Indenture or in the
Securities or in the Guarantees shall be held invalid, illegal or unenforceable,
in any respect for any reason, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions shall not
in any way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.
Section 13.15 Consent to Service and Jurisdiction; Appointment of Agent;
----------------------------------------------------------
Waiver of Sovereign Immunity; etc.
---------------------------------
(1) The Company, each Guarantor and the Trustee agree that any legal
suit, action or proceeding arising out of or relating to this Indenture, and
each of the Company and the
90
Guarantors agrees that any legal suit, action or proceeding arising out of or
relating to the Securities or the Guarantee, may be instituted in any federal or
state court in the Borough of Manhattan, The City of New York, waives any
objection which it may now or hereafter have to the laying of the venue of any
such legal suit, action or proceeding, waives any immunity from jurisdiction or
to service of process in respect of any such suit, action or proceeding, and
irrevocably submits to the jurisdiction of any such court in any such suit,
action or proceeding.
(2) Each of the Company, the Trustee and the Guarantors further
submits to the jurisdiction of the courts of its own corporate domicile in any
legal suit, action or proceeding arising out of or relating to this Indenture,
the Securities or the Guarantee.
(3) Each of the Company and the Guarantors irrevocably waives, to the
fullest extent it may effectively do so under applicable law, trial by jury and
any objection that it may now or hereafter have to the laying of the venue of
any such suit, action or proceeding brought in any such court and any claim that
any such suit, action or proceeding brought in any such court has been brought
in an inconvenient forum.
(4) Each of the Company and the Guarantors hereby designates and
appoints CT Corporation System Inc., 000 0xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000 as its authorized agent upon which process may be served in any legal
suit, action or proceeding arising out of or relating to this Indenture, the
Securities or the Guarantees which may be instituted in any federal or state
court in the Borough of Manhattan, The City of New York, New York, and further:
(a) agrees that service of process upon such agent, and written
notice of said service to the Company or a Guarantor by the Person serving
the same, shall be deemed in every respect effective service of process
upon the Company (if such notice is given to the Company) or upon such
Guarantor (if such notice is given to a Guarantor) in any such suit, action
or proceeding, and irrevocably consents, to the fullest extent it may
effectively do so under applicable law, to the service of process of any of
the aforementioned courts in any such suit, action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid,
to the above-mentioned authorized agent or successor authorized agent, as
the case may be, such service to become effective 30 days after such
mailing,
(b) agrees that a final action in any such suit or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other lawful manner,
(c) designates its domicile, the domicile of CT Corporation System
Inc. specified above and any domicile CT Corporation System Inc. may have
in the future as its domicile to receive any notice hereunder (including
service of process),
(d) agrees to take any and all action, including the execution and
filing of all such instruments and documents, as may be necessary to
continue such designation and appointment in full force and effect for so
long as the Securities remain outstanding, or until the designation and
irrevocable appointment of a successor authorized agent and such
successor's acceptance of such appointment, but in no event shall the
appointment continue beyond the date on which all amounts in respect of the
interest and principal and premium, if any, on the Securities and any other
amounts payable hereunder have become due and have been paid in full to the
Trustee,
(e) agrees that if for any reason CT Corporation System Inc. (or any
successor agent for this purpose) shall cease to act as agent for service
of process as provided above, each of the Company and the Guarantors will
promptly appoint a successor agent for this purpose reasonably acceptable
to the Trustee and
91
(f) agrees that nothing herein shall affect the right of the Trustee
or any Holder to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against any of the Company
or the Guarantors in any jurisdiction.
(5) If any of the Company and the Guarantors has or may hereafter
acquire sovereign immunity or any other immunity from jurisdiction or legal
process or from attachment in aid of execution or from execution with respect to
itself or its property, it hereby irrevocably waives to the fullest extent
permitted under applicable law such immunity in respect of its obligations
hereunder, under the Securities and the Guarantees, as applicable, in any action
that may be instituted in any state court in the Borough of Manhattan, in The
City of New York, the United States of America, or in the United States District
Court for the Southern District of New York, or in any competent court in The
People's Republic of China. This waiver is intended to be effective upon the
execution hereof without any further act by any of the parties hereto, before
any such court, and the introduction of a true copy of this Indenture into
evidence in any such court shall, to the fullest extent permitted by applicable
law, be conclusive and final evidence of such waiver.
Section 13.16 Table of Contents, Headings, Etc.
--------------------------------
The Table of Contents, Cross-Reference Table and headings of the Articles
and the Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 13.17 Qualification of Indenture.
--------------------------
The Company shall qualify this Indenture under the TIA in accordance with
the terms and conditions of the Registration Rights Agreement and shall pay all
costs and expenses (including attorneys' fees for the Company and the Trustee)
incurred in connection therewith, including, but not limited to, costs and
expenses of qualification of this Indenture and the Securities and printing this
Indenture and the Securities. The Trustee shall be entitled to receive from the
Company any such Officers' Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.
Section 13.18 Force Majeure.
-------------
In no event shall the Trustee be responsible or liable for any failure or
delay in the performance of its obligations under this Indenture arising out of
or caused by, directly or indirectly, forces beyond its reasonable control,
including without limitation strikes, work stoppages, accidents, acts of war or
terrorism, civil or military disturbances, nuclear or natural catastrophes or
acts of god, and interruptions, loss or malfunctions of utilities,
communications or computer (software or hardware) services.
Section 13.19 Obligations of ASAT Holdings.
----------------------------
Notwithstanding anything herein to the contrary, ASAT Holdings shall not
become a Guarantor or otherwise have any obligations under this Indenture to the
extent (i) it is not permitted to have such obligations under Section 4.20 of
the Senior Notes due 0000 Xxxxxxxxx and (ii) Section 4.20 of the Senior Notes
due 2006 Indenture then remains in effect.
92
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first written above.
NEW ASAT (FINANCE) LIMITED
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
Attest: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
ASAT HOLDINGS LIMITED
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer
Attest: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
ASAT LIMITED
The COMMON SEAL of )
ASAT LIMITED ) /s/ Xxxxxx Xxxx
was hereunto affixed ) --------------------------------------
in the presence of: ) Name: Xxxxxx Xxxx
Title: Director
/s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
ASAT, INC.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
Attest: /s/ Xx X. Xxxxxxx
------------------------------
Name: Xx X. Xxxxxxx
Title: Secretary
XXXXXXXX LIMITED
The COMMON SEAL of )
XXXXXXXX LIMITED ) /s/ Xxxxxx Xxxx
was hereunto affixed ) --------------------------------------
in the presence of: ) Name: Xxxxxx Xxxx
Title: Director
/s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxx Xxxxx
----------------------------------
Name: Xxxx Xxxxx
--------------------------------
Title: Assistant Vice President
-------------------------------
Attest: /s/ Xxxxxxx Xxxx
------------------------------
Name: Xxxxxxx Xxxx
------------------------------
Title: Assistant Vice President
------------------------------
EXHIBIT A
[FORM OF SECURITY]
NEW ASAT (FINANCE) LIMITED
9.25% SERIES A/1/ SENIOR NOTE DUE 2011
CUSIP No. ______________
No.
$
New ASAT (Finance) Limited, an exempt company with limited liability under
the Companies Law (2003 Revision) of the Cayman Islands (hereinafter called the
"Company," which term includes any successors under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ________________, or
registered assigns, the principal sum of _____________ Dollars [(such principal
amount may from time to time be increased or decreased to such other principal
amount (which, taken together with the principal amount of all other Outstanding
Securities, shall not exceed $150,000,000) by adjustment made on the records of
the Trustee)]/2/, on February 1, 2011.
Interest Payment Dates: February 1 and August 1
Record Dates: January 15 and July 15
Reference is made to the further provisions of this Security on the reverse
side, which will, for all purposes, have the same effect as if set forth at this
place.
----------
/1/ Series A should be replaced with Series B in the Exchange Securities.
/2/ This paragraph should only be included if the Security is issued in global
form.
A-1
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed as of January 26, 2004.
NEW ASAT (FINANCE) LIMITED
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
Attest:
------------------------------
Name:
--------------------------------
Title:
-------------------------------
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
----------------------------------
Authorized Signatory
Dated:
A-2
NEW ASAT (FINANCE) LIMITED
9.25% Series A/3/ Senior Note due 2011
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (INCLUDING ITS DIRECT AND
INDIRECT PARTICIPANTS, "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 IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC, AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS 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 BECAUSE THE REGISTERED OWNER HEREOF, CEDE &CO., HAS AN INTEREST
HEREIN.]/4/
["THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO SUCH REGISTRATION. BY ITS ACQUISITION OF THIS
SECURITY OR 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"), OR (B) IT IS ACQUIRING
THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT;
(2) AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR
TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), EXCEPT (A) TO THE COMPANY OR ANY GUARANTOR OR ANY
OF THEIR RESPECTIVE SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT THAT
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO AN
OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES
ACT, OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF
----------
/3/ Series A should be replaced with Series B in the Exchange Securities.
/4/ This paragraph should only be included if the Security is issued in global
form.
A-3
THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUESTS OF
THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE AS TO THE ABOVE RESTRICTIONS.
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 SECURITY IN VIOLATION OF THE FOREGOING
RESTRICTIONS."]/5/
[FOR SIX MONTHS FOLLOWING JANUARY 26, 2004, WITH RESPECT TO ANY SECURITY WHICH
IS LISTED OR QUOTED ON THE SINGAPORE EXCHANGE SECURITIES TRADING LIMITED OR A
RECOGNIZED SECURITIES EXCHANGE (AS DEFINED IN THE SECURITIES AND FUTURES ACT,
CHAPTER 289 OF SINGAPORE), SUCH SECURITY MAY NOT BE OFFERED OR SOLD OR BE MADE
THE SUBJECT OF AN INVITATION FOR SUBSCRIPTION OR PURCHASE NOR MAY ANY DOCUMENT
OR MATERIAL IN CONNECTION WITH THE OFFER OR SALE, OR INVITATION FOR SUBSCRIPTION
OR PURCHASE, OF SUCH SECURITY BE CIRCULATED OR DISTRIBUTED, WHETHER DIRECTLY OR
INDIRECTLY, TO THE PUBLIC OR ANY MEMBER OF THE PUBLIC IN SINGAPORE OTHER THAN
(A) TO AN INSTITUTIONAL INVESTOR OR OTHER PERSON SPECIFIED IN SECTION 274 OF THE
SECURITIES AND FUTURES ACT, CHAPTER 289 OF SINGAPORE (B) TO A SOPHISTICATED
INVESTOR, AND IN ACCORDANCE WITH THE CONDITIONS, SPECIFIED IN SECTION 275 OF THE
SECURITIES AND FUTURES ACT, CHAPTER 289 OF SINGAPORE OR (C) OTHERWISE PURSUANT
TO, AND IN ACCORDANCE WITH THE CONDITIONS OF, ANY OTHER APPLICABLE PROVISION OF
THE SECURITIES AND FUTURES ACT, CHAPTER 289 OF SINGAPORE.]/6/
1. Interest. New ASAT (Finance) Limited, an exempt company with limited
liability under the Companies Law (2003 Revision) of the Cayman Islands
(hereinafter called the "Company," which term includes any successors under the
Indenture hereinafter referred to), promises to pay interest on the principal
amount of this Security at the rate of 9.25% per annum. To the extent it is
lawful, the Company promises to pay interest on any interest payment due but
unpaid on such principal amount at a rate of 9.25% per annum compounded
semi-annually.
The Company will pay interest semi-annually on February 1 and August 1 of
each year (each, an "Interest Payment Date"), commencing August 1, 2004.
Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid on the Securities, from
the date of the original issuance. Interest will be computed on the basis of a
360-day year consisting of twelve 30-day months.
2. Method of Payment. The Company shall pay interest (and Liquidated
Damages, if any, and Additional Amounts, if any) on the Securities (except
Defaulted Interest) to the Persons who are the registered Holders at the close
of business on the Record Date immediately preceding the Interest Payment Date.
Holders must surrender Securities to a Paying Agent to collect principal
payments. Except as provided below, the Company shall pay principal, premium,
and interest (and
----------
/5/ This paragraph should be included only for Initial Securities.
/6/ This paragraph should be included until the sixth month anniversary of the
Issue Date.
A-4
Liquidated Damages, if any, and Additional Amounts, if any) in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for payment of public and private debts ("Cash"). The Securities
will be payable as to principal, premium and interest (and Liquidated Damages,
if any, and Additional Amounts, if any) at the office or agency of the Company
maintained for such purpose within the Borough of Manhattan, the City and State
of New York and, for as long as the Securities are listed on the SGX and the
rules of such exchange so require, at the offices of the paying agent in
Singapore (which will be at the office of DBS Bank Ltd) or, at the option of the
Company, payment of principal, premium and interest (and Liquidated Damages, if
any, and Additional Amounts, if any) may be made by check mailed to the Holders
at their addresses set forth in the register of Holders, and provided that
payment by wire transfer of immediately available funds will be required with
respect to principal of and interest (and Liquidated Damages, if any, and
Additional Amounts, if any) and premium on all Global Securities and all other
Securities the Holders of which shall have provided wire transfer instructions
to the Company or the Paying Agent at least 5 Business Days prior to the
relevant record date. If a payment date is a date other than a Business Day at a
place of payment, payment may be made at that place on the next succeeding day
that is a Business Day and no interest shall accrue for the intervening period
if and to the extent the required payment is made on the next succeeding
Business Day.
3. Paying Agent and Registrar. Initially, The Bank of New York (the
"Trustee"), will act as Paying Agent and Registrar and DBS Bank Ltd will act as
Singapore Paying Agent. The Company may change any Paying Agent, Registrar or
co-Registrar without notice to the Holders. The Company may, subject to certain
exceptions, act as Paying Agent, Registrar or co-Registrar.
4. Indenture. The Company issued the Securities under an Indenture, dated
as of January 26, 2004 (the "Indenture"), among the Company, the Guarantors
named therein and the Trustee. Capitalized terms herein are used as defined in
the Indenture unless otherwise defined herein. The terms of the Securities
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act, as in effect on the date of the Indenture.
The Securities are subject to all such terms, and Holders of Securities are
referred to the Indenture and said Act for a statement of them. The Securities
are senior obligations of the Company limited in aggregate principal amount to
$150,000,000.00. Each Holder of this Security, by accepting the same, (a) agrees
to and shall be bound by such provisions, (b) authorizes and directs the Trustee
on his behalf to take such action as may be provided in the Indenture and (c)
appoints the Trustee his attorney-in-fact for such purpose. To the extent
permitted by applicable law, in the event of any inconsistency between the terms
of the Securities and the terms of the Indenture, the terms of the Indenture
shall control.
5. Redemption.
(a) Except as provided in this Paragraph 5 or in Article III of the
Indenture, the Company shall not have the right to redeem any Securities.
(b) The Company may redeem the Securities at its option at any time
or from time to time before February 1, 2008, in whole or in part, at a
price equal to the sum of (i) 100% of the principal amount thereof plus
accrued and unpaid interest and Liquidated Damages and Additional Amounts,
if any, thereon to, but not including, the Redemption Date plus (ii) a
Make-Whole Amount, if any.
(c) At any time on and after February 1, 2008, the Company may redeem
on one or more occasions the Securities for cash at its option, in whole or
in part, at the following Redemption Prices (expressed as a percentage of
principal amount) if redeemed during the 12-month period commencing
February 1 of the years indicated below, in each case together with accrued
but unpaid interest (and Liquidated Damages, if any, and Additional
Amounts, if any) to, but not including, the Redemption Date.
A-5
Year Percentage
------------------- ----------
2008 104.625%
2009 102.313%
2010 and thereafter 100.000%
(d) Notwithstanding the foregoing, at any time prior to February 1,
2007, upon any Equity Offering of Qualified Capital Stock of ASAT Holdings
for cash, up to 35% of the aggregate principal amount of the Securities
issued pursuant to the Indenture may be redeemed at the Company's option
within 90 days of such Equity Offering, on not less than 30 days, but not
more than 60 days, notice to each Holder of the Securities to be redeemed,
in an amount not to exceed the amount of cash received by ASAT Holdings
from the Net Cash Proceeds of such Equity Offering, at a redemption price
equal to 109.250% of principal, together with accrued and unpaid interest
and Liquidated Damages and Additional Amounts, if any, thereon to, but not
including, the Redemption Date; provided, however, that immediately
following such redemption not less than 65% of the aggregate principal
amount of the Securities originally issued pursuant to the Indenture on the
Issue Date remain outstanding.
(e) If, as a result of any change in or amendment to the laws,
regulations or published tax rulings of general applicability of Hong Kong,
the People's Republic of China, the Cayman Islands or the United States of
America (or of any taxing authority thereof or therein), which is proposed
and becomes effective on or after the date of the Indenture, in making any
payment due or to become due under the Securities or the Indenture, (i)(A)
the Company is or would be required on the next succeeding Interest Payment
Date to pay Additional Amounts and (B) each Guarantor is, or on the next
succeeding Interest Payment Date would be, unable, for reasons outside its
control, to cause the Company to pay amounts due under the Securities, and
with respect to any amount due under its Guarantee or the Indenture, each
Guarantor is, or would be required on the next succeeding Interest Payment
Date, to pay Additional Amounts and (ii) the payment of such Additional
Amounts cannot be avoided by the use of any reasonable measures available
to the Company or such Guarantor, as the case may be, the Securities may be
redeemed at the option of the Company in whole but not in part, upon not
less than 30 nor more than 60 days' notice in accordance with the
provisions set forth in the Indenture, at any time at a redemption price
equal to 100% of the principal amount thereof, plus accrued and unpaid
interest to the date of redemption. The Company and such Guarantor will
also pay to Holders on the date of redemption any Additional Amounts which
are payable.
(f) Any redemption of Securities will comply with the provisions of
Article III of the Indenture.
(g) The Securities will not have the benefit of any sinking fund and
the Company will not be required to make any mandatory redemption payments
with respect to the Securities.
6. Notice of Redemption. Notice of redemption will be sent by first class
mail, at least 30 days and not more than 60 days prior to the Redemption Date to
the Holder of each Security to be redeemed at such Holder's last address as then
shown upon the registry books of the Registrar. Securities may be redeemed in
part in multiples of $1,000 only.
Except as set forth in the Indenture, from and after any Redemption Date,
if monies for the redemption of the Securities called for redemption shall have
been deposited with the Paying Agent on such Redemption Date, the Securities
called for redemption will cease to bear interest and the only right of the
Holders of such Securities will be to receive payment of the Redemption Price,
plus any accrued and unpaid interest (and Liquidated Damages, if any, and
Additional Amounts, if any) to the Redemption Date.
A-6
7. Denominations; Transfer; Exchange. The Securities are in registered
form, without coupons, in denominations of $1,000 and integral multiples of
$1,000. A Holder may register the transfer of, or exchange Securities in
accordance with, the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture. The Registrar
need not register the transfer of or exchange any Securities (a) selected for
redemption except the unredeemed portion of any Security being redeemed in part
or (b) for a period beginning 15 Business Days before the mailing of a notice of
an offer to repurchase or redemption and ending at the close of business on the
day of such mailing.
8. Persons Deemed Owners. The registered Holder of a Security may be
treated as the owner of it for all purposes.
9. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and the Paying Agent(s) will pay
the money back to the Company at its written request. After that, all liability
of the Trustee and such Paying Agent(s) with respect to such money shall cease.
10. Discharge Prior to Redemption or Maturity. Except as set forth in the
Indenture, if the Company irrevocably deposits or causes to be deposited with
the Trustee, in trust, for the benefit of the Holders, Cash, U.S. Government
Obligations or a combination thereof, in such amounts as will be sufficient as
certified in the opinion of a nationally recognized investment bank, appraisal
firm or firm of independent accountants, to pay the principal of, premium, if
any, and interest (and Liquidated Damages, if any, and Additional Amounts, if
any) on the outstanding Securities on the stated date for payment thereof or on
the redemption date and complies with the other provisions of the Indenture
relating thereto, the Company will be discharged from certain provisions of the
Indenture and the Securities (excluding its obligation to pay the principal of,
premium, if any, and interest (and Liquidated Damages, if any, and Additional
Amounts, if any) on the Securities). Upon satisfaction of certain additional
conditions set forth in the Indenture, the Company may elect to have its
obligations discharged with respect to outstanding Securities.
11. Amendment; Supplement; Waiver. Subject to certain exceptions, the
Indenture or the Securities may be amended or supplemented with the written
consent of the Holders of at least a majority in aggregate principal amount of
the Securities then outstanding, and any existing Default or Event of Default or
compliance with any provision may be waived with the consent of the Holders of a
majority in aggregate principal amount of the Securities then outstanding.
Without notice to or consent of any Holder, the parties thereto may under
certain circumstances amend or supplement the Indenture or the Securities to,
among other things, cure any ambiguity, defect or inconsistency, or make any
other change that does not adversely affect the rights of any Holder of a
Security.
12. Restrictive Covenants. The Indenture imposes certain limitations on
the ability of the Company and any Guarantors to, among other things, incur
additional Indebtedness and issue Disqualified Capital Stock and Preferred
Stock, pay dividends or make certain other Restricted Payments, enter into
certain transactions with Affiliates, incur Liens, sell assets and subsidiary
stock, merge or consolidate with any other Person or transfer (by lease,
assignment or otherwise) all or substantially all of their properties and
assets. The limitations are subject to a number of qualifications and
exceptions. The Company must periodically report to the Trustee on compliance
with such limitations.
13. Ranking. Payment of principal, premium, if any, and interest (and
Liquidated Damages, if any, and Additional Amounts, if any) on the Securities is
senior, in the manner and to the extent set forth in the Indenture, to all
existing and future Indebtedness of the Company that is subordinated to the
Securities.
X-0
00. Xxxxxxxxxx at Option of Holder.
(a) If there is a Change of Control, the Company shall be required to
offer to purchase on the Change of Control Purchase Date all outstanding
Securities at a purchase price equal to 101% of the principal amount
thereof, plus accrued and unpaid interest (and Liquidated Damages, if any,
and Additional Amounts, if any), if any, to the Change of Control Purchase
Date. Holders of Securities will receive a Change of Control Offer from the
Company prior to any related Change of Control Purchase Date and may elect
to have such Securities purchased by completing the form entitled "Option
of Holder to Elect Purchase" appearing below.
(b) The Indenture imposes certain limitations on the ability of ASAT
Holdings or any Restricted Subsidiary to sell assets and subsidiary stock.
In the event the proceeds from a permitted Asset Sale exceed certain
amounts, as specified in the Indenture, ASAT Holdings or such Restricted
Subsidiary shall be required to invest in Additional Assets or repay
certain Indebtedness, and any excess proceeds must be used to redeem the
Securities and other pari passu Indebtedness or to make an offer to
purchase each Holder's Securities and other pari passu Indebtedness at 100%
of the principal amount thereof, plus accrued interest (and Liquidated
Damages, if any, and Additional Amounts, if any), if any, to the purchase
date, all in accordance with the Indenture.
15. Guarantee.
(a) As set forth more fully in the Indenture, the Persons
constituting Guarantors from time to time, in accordance with the
provisions of the Indenture, fully, irrevocably, unconditionally and
jointly and severally guarantee, to the fullest extent permitted by
applicable law, on a senior basis, in accordance with Section 11.1 of the
Indenture, to the Holder and to the Trustee and its successors and assigns,
that (i) the principal of and premium (if any), and interest (and
Liquidated Damages, if any, and Additional Amounts, if any) on the
Securities will be paid in full when due, whether at the Stated Maturity or
Interest Payment Date, by acceleration, call for redemption, upon a Change
of Control, an Asset Sale Offer or otherwise; (ii) all other obligations of
the Company to the Holders or the Trustee under the Indenture or the
Securities will be promptly paid in full or performed, all in accordance
with the terms of the Indenture and the Securities; (iii) in case of any
extension of time of payment or renewal of any Securities or any of such
other obligations, they will be paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at maturity,
by acceleration, call for redemption, upon a Change of Control, an Asset
Sale Offer or otherwise; and (iv) the Company and each of the Guarantors
shall give prompt written notice to the Trustee of any fact known to the
Company or such Guarantor that would prohibit any Guarantor from making any
payment in respect of its Guarantee. Such Guarantees shall cease to apply,
and shall be null and void, with respect to any Guarantor who, pursuant to
Article XI of the Indenture, is released from its guarantees, or whose
guarantees otherwise cease to be applicable pursuant to the terms of the
Indenture.
(b) When a successor assumes all the obligations of its predecessor
under the Securities and the Indenture, the predecessor will be released
from those obligations pursuant to the terms of the Indenture.
16. Defaults and Remedies. 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 Securities may declare all the Securities to be
due and payable immediately. Notwithstanding the foregoing, in the case of an
Event of Default arising from certain events of bankruptcy or insolvency with
respect to the Company or any of its Significant Subsidiaries, all outstanding
Securities will become due and payable without further action or notice.
Securityholders may not enforce the Indenture, the Securities or the Guarantees
except as provided in the Indenture. Subject to certain limitations, Holders of
a majority in aggregate principal amount of the then outstanding Securities may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders notice of any
A-8
continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest.
17. Trustee Dealings with Company. The Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company, any Guarantor, any of their Subsidiaries or
any of their respective Affiliates, and may otherwise deal with such Persons as
if it were not the Trustee.
18. No Recourse Against Others. No incorporator, direct or indirect
stockholder, partner, director, officer or employee, as such, past, present or
future, of the Company or any Guarantor, or any successor entity, shall have any
personal liability in respect of the obligations of the Company and the
Guarantors under the Securities or the Indenture by reason of his, her or its
status as such partner, incorporator, stockholder, director, officer or
employee. Each Holder of a Security by accepting a Security waives and releases
all such liability. The waiver and release are part of the consideration for the
issuance of the Securities.
19. Authentication. This Security shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on the other side
of this Security.
20. Abbreviations and Defined Terms. Customary abbreviations may be used
in the name of a Holder of a Security 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).
21. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company will cause
CUSIP numbers to be printed on the Securities as a convenience to the Holders of
the Securities. No representation is made as to the accuracy of such numbers as
printed on the Securities and reliance may be placed only on the other
identification numbers printed hereon.
22. Additional Rights of Holders of Initial Securities. In addition to the
rights provided to Holders of Initial Securities under the Indenture, Holders of
Initial Securities shall have all the rights set forth in the Registration
Rights Agreement.
23. Governing Law. THE INDENTURE, THE GUARANTEES AND THE SECURITIES SHALL
BE CONSTRUED, INTERPRETED AND THE RIGHTS OF THE PARTIES THERETO DETERMINED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS EXCEPT SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(B).
24. Obligations of ASAT Holdings. Notwithstanding anything herein to the
contrary, ASAT Holdings shall have no obligations under the Indenture, this
Security or as a Guarantor to the extent (i) it is not permitted to have such
obligations under Section 4.20 of the Indenture by and among ASAT (Finance) LLC,
ASAT Holdings, certain subsidiaries of ASAT Holdings a party thereto and U.S.
Bank National Association (as successor to JPMorgan Chase Bank), dated as of
October 29, 1999, relating to the issuance of the 12.5% Senior Notes due 2006
and (ii) Section 4.20 of such Indenture then remains in effect.
A-9
[FORM OF ASSIGNMENT]
I or we assign this Security to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other tax identification number of assignee)
and irrevocably appoint _______________________________________ agent to
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Dated: Signed:
------------------------------- ------------------------------
(Sign exactly as name appears on the
other side of this Security)
Signature Guarantee*:
-----------------
----------
* NOTICE: The Signature must be guaranteed by an institution which is a
member of one of the following recognized signature Guarantee Programs: (i)
The Securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion
Program (SEMP); or (iv) in such other guarantee program acceptable to the
Trustee.
A-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.14 or Article X of the Indenture, check the appropriate
box:
Section 4.14
Article X.
If you want to elect to have only part of this Security purchased by the
Company pursuant to Section 4.14 or Article X of the Indenture, as the case may
be, state the amount you want to be purchased in denominations on integral
multiples of US$1,000: $________.
Date: Signature:
-------------------------------- ---------------------------
(Sign exactly as your name appears on
the other side of this Security)
Tax Identification No:
----------------
Signature Guarantee**:
----------------
----------
** NOTICE: The Signature must be guaranteed by an institution which is a
member of one of the following recognized signature Guarantee Programs: (i)
The Securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion
Program (SEMP); or (iv) in such other guarantee program acceptable to the
Trustee.
A-11
SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES/7/
The following exchanges of a part of this Global Security for Definitive
Securities have been made:
Signature of
Amount of Amount of Principal Amount authorized
decrease in increase in of this Global officer of
Principal Amount Principal Amount Security following Trustee or
Date of of this Global of this Global such decrease (or Securities
Exchange Security Security increase) Custodian
------------------------------------------------------------------------------
----------
/7/ This schedule should only be added if the Security is issued in global
form.
A-12
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF
TRANSFER RESTRICTED SECURITIES/8/
Re: 9.25% Series A Senior Notes due 2011 of New ASAT (Finance) Limited
This Certificate relates to $________ principal amount of Securities held
in (check applicable space) ___ book-entry or ____ definitive form by
___________________________ (the "Transferor").
The Transferor (check applicable box):
has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Security held by the Depository
a Security or Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its
beneficial interest in such Global Security (or the portion thereof
indicated above); or
has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with such request and in respect of each such Security, the
Transferor does hereby certify that Transferor is familiar with the Indenture
relating to the above-captioned Securities and as provided in Section 2.6 of
such Indenture, the transfer of this Security does not require registration
under the Securities Act (as defined below) because:
Such Security is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.6(1)(b)(i) or Section
2.6(4)(a)(i) of the Indenture).
Such Security is being transferred to a "qualified institutional
buyer" (within the meaning of Rule 144A promulgated under the
Securities Act), that is aware that any sale of Securities to it will
be made in reliance on Rule 144A under the Securities Act and that is
acquiring such Transfer Restricted Security for its own account, or
for the account of another such "qualified institutional buyer" (in
satisfaction of Section 2.6(1)(b)(ii) or Section 2.6(4)(a)(ii) of the
Indenture).
Such Security is being transferred pursuant to an exemption from
registration in accordance with Rule 144, or outside the United States
of America in an Offshore Transaction in compliance with Rule 904
under the Securities Act, or pursuant to an effective registration
statement under the Securities Act (in satisfaction of Section
2.6(1)(b)(iii) or Section 2.6(4)(a)(iii) of the Indenture).
Such Security is being transferred in reliance on and in compliance
with an exemption from the registration requirements of the Securities
Act and in accordance with applicable securities laws of the States of
the United States of America, other than as provided in the
immediately preceding paragraph. An Opinion of Counsel to the effect
that such transfer does not require registration under the Securities
Act accompanies this Certificate (in satisfaction of Section
2.6(1)(b)(iv) or Section 2.6(4)(a)(iv) of the Indenture).
--------------------------------------------------------------------------------
(Insert Name of Transferor)
By:
----------------------------------------------------------------------------
Date:
--------------------------------
----------
/8/ This certificate shall be included only for Initial Securities.
A-13
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER
OF SECURITIES
Re: 9.25% Series B Senior Notes due 2011 of New ASAT (Finance) Limited
This Certificate relates to $________ principal amount of Securities held
in (check applicable space) ___ book-entry or ____ definitive form by
___________________________ (the "Transferor").
The Transferor (check applicable box):
has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Security held by the Depositary
a Security or Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its
beneficial interest in such Global Security (or the portion thereof
indicated above); or
has requested the Registrar by written order to exchange or register
the transfer of a Security or Securities.
A-14
