EXHIBIT 4.20
EXECUTION COPY
THIS YANGDO TAMBO AGREEMENT (the "Agreement") is entered as of this 26th day of
December 2003, by and between:
(i) SIMMTECH CO. LTD, a company duly incorporated and existing under the
laws of Korea and having its principal place of of business at 00-0
Xxxxxxxx-Xxxx, Xxxxxxxx-xx, Xxxxxxxx, Xxxxxxxxxxxxx-xx, Xxxxx 361-290 (the
"Transferor"); and
(ii) ST ASSEMBLY TEST SERVICES LTD., a company duly incorporated and
existing under the law of Singapore and having a place of business at 0
Xxxxxx Xxxxxx 00, Xxxxxxxxx 000000 (the "Transferee").
RECITALS
WHEREAS:
A. By the Loan Agreement dated as of December 26, 2003 (the "Loan Agreement")
made by and between the Transferor, the Transferee and Mr. Se-Xx Xxxx, the
Transferee has agreed, subject to and upon the terms and conditions
contained therein, to provide a loan to the Transferor in the amount of USD
15 million (USD 15,000,000);
B. The Transferor will be, upon acquisition, the legal and beneficial owner of
the Property To Be Owned (as defined below); and
C. For the purposes of securing the Secured Obligations (as defined below),
the Transferor desires to transfer to the Transferee, among other things,
all its rights, title and interests in and to the Property To Be Owned
pursuant to terms and conditions herein.
NOW, THEREFORE, it is agreed as follows:
SECTION 1. INTERPRETATION
Words and expressions defined in the Loan Agreement shall, unless otherwise
defined herein or the context otherwise requires, have the same meaning when
used in this Agreement. References to any agreement or document shall be
construed as references to such agreement or document as varied, amended,
novated or supplemented from time to time. In addition thereto, as used in this
Agreement:
1.1 "Property to Be Owned" shall mean any and all Equipment (as defined in the
Loan Agreement) to be purchased by the Transferor using the Loan monies, as
described in Schedule I hereto (as amended from time to time pursuant to
this Agreement).
1.2. "Secured Obligations" shall mean (i) any and all obligations, liabilities
and indebtedness of the Transferor owing to the Transferee, presently
existing or to be incurred hereinafter under or with respect to the Loan
Agreement, (ii) moneys, obligations and liabilities owing and payable by
the Major Shareholder (defined in the Loan Agreement) to the Transferee
under the Share Pledge Agreement dated December 26, 2003 made between the
Major Shareholder and the Transferee, (iii) moneys, obligations and
liabilities owing and payable by the Company to the Pledgee under the
Factory Kun-Mortgage Agreement dated December 26, 2003 between the
Transferor and Transferee and (iv) moneys, obligations and liabilities
owing and payable by the Transferor to the Transferee under this Agreement.
SECTION 2. YANGDO TAMBO AGREEMENT
2.1 Immediately upon the Transferor obtaining legal title to the Property To Be
Owned, the Transferor shall transfer and assign to the Transferee the
Property To Be Owned as security for the punctual payment, performance and
discharge in full of the Secured Obligations; provided, that unless and
until an Event of Default occurs under the Loan Agreement the Transferee
shall hold the title to the Property To Be Owned for the purpose of
security only and shall not use, seize or dispose of the Property To Be
Owned. The Transferor hereby agrees that any Property to Be Owned shall be
subject to Yangdo Tambo on such property for the benefit of the Transferee
pursuant to this Agreement and that if such property may not be subject to
such Yangdo Tambo, the Transferor shall transfer and assign to the
Transferee the Property to Be Owned as security for the punctual payment,
performance and discharge in full of the Secured Obligations in the manner
applicable to the nature of it and perform any and all actions necessary
for the establishment and effectuation of such collateral arrangement under
the laws of Korea.
2.2 At each time the Transferor obtaining legal title to the Property To Be
Owned, but no later than 2 days after obtaining such legal title, the
Transferor shall send to the Transferee a written notice which shall
include a statement that that the Transferor has obtained legal title to
the concerned Property To Be Owned and a detailed description of the
concerned Property To Be Owned (to the reasonable satisfaction of the
Transferee).
SECTION 3. REPRESENTATIONS AND WARRANTIES
3.1 The Transferor hereby represents, warrants and covenants to the Transferee
that:
(a) the execution, delivery and performance by the Transferor of this
Agreement have been duly authorized by the Transferor, and are not in
conflict with any provision of any applicable laws or regulations or
the articles of incorporation of the Transferor;
2
(b) the execution, delivery and performance by the Transferor of this
Agreement does not violate or cause any default under any indenture,
agreement or undertaking by which the Transferor is bound;
(c) all authorizations required from any government or governmental agency
in connection with this Agreement have been obtained and are in full
force and effect;
(d) this Agreement constitutes valid obligations of the Transferor,
legally binding upon it and enforceable in accordance with its terms,
subject, as to enforceability, to laws relating to bankruptcy,
insolvency, liquidation, reorganization, court schemes, moratoria,
administration and other laws generally affecting the rights of
creditors;
(e) all property forming part of the Property To Be Owned, prior to the
transfer and assignment by the Transferor to the Transferee to be made
hereby, shall be owned legally by the Transferor by good and
marketable title free from all security, interest, lien or other
encumbrance, and such title shall, by the transfer and assignment
contained herein, be automatically transferred and assigned to the
Transferee to provide for payment when due of the Secured Obligations
and shall at all times be and remain free from any security, interest,
lien or other encumbrance, except for the transfer and assignment of
title made hereunder;
(f) the Transferor has not agreed, and will not agree to sell, assign,
transfer or create any security, interest, lien or other encumbrance
in or over all or any part of the Property To Be Owned other than in
favor of the Transferee hereunder;
(g) to the knowledge of the Transferor, there are no circumstances that
may or will diminish the value of the Property To Be Owned; and
(h) the Transferor has not taken any corporate action nor have any other
steps been taken or legal proceedings been started by it or any third
party for its winding up, dissolution, reorganization or bankruptcy or
for the appointment of a receiver, trustee or similar officer over the
Transferor or its assets or revenues, and there occurs or continues no
cause/event that may lead to such action or steps.
3.2 Each of the warranties and representations contained in the preceding
sub-clause shall survive and continue to have full force and effect until
the termination of this Agreement.
SECTION 4. COVENANTS OF THE TRANSFEROR
The Transferor covenants and undertakes the following with the Transferee:
3
(a) duly and punctually to observe and perform all the conditions and
obligations imposed on it by the Loan Agreement and this Agreement;
(b) not, without the prior written consent of the Transferee, to attempt
to sell, assign, transfer or create any security, interest or lien
over the Property To Be Owned to or in favor of any person other than
the Transferee or otherwise dispose of or encumber any of the Property
To Be Owned, and shall not remove the Property To Be Owned from the
Transferor's premise unless it is replaced with the substitute
property as provided in paragraph (f) below;
(c) at any time following the occurrence of an Event of Default, to do or
permit to be done each and every act or thing the Transferee may from
time to time require to be done for the purpose of enforcing the
Transferee's rights under this Agreement or in respect of any of the
Property To Be Owned and to allow its name to be used as and when
required by the Transferee for such purpose;
(d) to possess and use the Property To Be Owned in accordance with its
customary usage and preserve the value of the Property To Be Owned
with such care as is required of a good manager;
(e) to make all registrations, filings and recordings, and take all other
actions as are necessary or determined by the Transferee to be
advisable to ensure the continued legality, validity, enforceability,
priority and admissibility in evidence of this Agreement;
(f) to promptly notify the Transferee of any theft, loss or destruction of
and damage to any of the Property To Be Owned or any other accident or
reduction in price that has occurred or is expected to occur with
respect to the Property To Be Owned (including but not limited to
reduction in value due to depreciation), and in connection therewith,
the Transferor agrees not to claim against the Transferee for any
damages or loss incurred in connection with any such theft, loss
destruction or damage unless attributable to any wilful misconduct of
the Transferee. In case the value of the Property To Be Owned is
materially affected due to theft, loss, destruction, damage,
depreciation, etc., and the Transferor notifies the Transferee of such
as provided in this paragraph (f), the Transferee may request the
Transferee to replace the concerned the Property To Be Owned with
other property that is acceptable to the Transferee, and the Parties
hereto shall take all necessary steps to ensure that the terms of this
Agreement shall apply to such replacement property, including but not
limited to execution of an amendment to this Agreement which
identifies the replacement property as the Property To Be Owned that
is subject to this Agreement;
(g) to be responsible for the resolution of any disputes with a third
party in connection with the Property To Be Owned, including any
disputes involving claims against the Property To Be Owned , and in
connection therewith, the Transferor agrees not to take any action
which might adversely affect the enforcement of the Transferee's
rights or Transferee'
4
interests in the Property To Be Owned and to affirmatively protect and
defend such rights and interests in accordance with the instructions
of the Transferee;
(i) to conduct its business in accordance with any applicable laws and
regulations;
(j) to pay all taxes, assessments and other governmental charges of any
kind imposed on or in respect of its income or any of its business
when due;
(k) immediately upon the acquisition of the Property To Be Owned , and
until all Secured Obligations have been fully discharged, to affix a
clearly visible sign or plaque on each Property To Be Owned (to the
satisfaction of the Transferee) providing to the effect that the legal
title to the Property To Be Owned belongs to the Transferee and that
the Property To Be Owned may not be transferred, sold or offered as
collateral (the exact content of which shall be approved in advance by
the Transferee); and
(l) throughout the term of this Agreement, to procure and maintain
insurance on the Property To Be Owned in such an amount and such a
form as approved by the Transferee and from such an insurance company
as may be selected or approved by the Transferee; and
(m) Each time when the Transferor obtains title to any Property to Be
Owned, the Transferor shall immediately notify the Transferee together
with a certified copy of amended Schedule I to add such property in
the list thereto. Upon confirmation by the Transferee, such amended
Schedule shall be deemed as the Schedule hereunder.
SECTION 5. ATTORNEY-IN-FACT
The Transferor hereby irrevocably appoints the Transferee as its true and lawful
attorney-in-fact with full power to require, demand and receive any and all
moneys and claims for money due and to become due under or with respect to the
Property To Be Owned to the extent transferred hereunder and to take any action
or execute any instrument which the Transferee may deem necessary or appropriate
to accomplish the purpose hereof.
SECTION 6. TERMINATION AND REASSIGNMENT
The term of this Agreement shall begin on the date of this Agreement and end on
the date on which all Secured Obligations shall have been unconditionally and
irrevocably paid and discharged. Upon termination of this Agreement, the
Transferee shall, at the request and cost of the Transferor, promptly
re-transfer to the Transferor all right, title, interest and benefit transferred
hereunder and the security constituted hereby to the Transferee, and take such
other actions as may be reasonably requested to effectuate such reassignment.
5
SECTION 7. PRESERVATION OF TRANSFERRED PROPERTY
The Transferor shall hold the Property To Be Owned, as custodian for the
Transferee. The Transferor hereby agrees that it will, from time to time at its
own expense, promptly execute and deliver all further instruments, and take all
further actions, as may be necessary or desirable in the opinion of the
Transferee, or as the Transferee may request, in order to effect or protect the
assignment of title to the Property To Be Owned by the Transferor to the
Transferee granted hereunder and to enable the Transferee's rights and remedies
hereunder with respect to the Property To Be Owned.
SECTION 8. ADDITION TO TRANSFERRED PROPERTY
Any structure, mechanical components, wires, parts, fuels and attached machinery
and tools, which are united with or attached to the Property To Be Owned and
goods to be attached to or united with the Property To Be Owned by extension,
reconstruction, repair or rebuilding shall be deemed to have been transferred
and delivered to the Transferee under this Agreement.
SECTION 9. ENFORCEMENT BY TRANSFEREE
9.1 If any of the Secured Obligations becomes due and payable, the Transferee
shall be entitled to enforce its rights under this Agreement.
9.2 If any of the Secured Obligations becomes due and payable, the Transferee
shall in its sole discretion have the authority to sell, transfer or
otherwise dispose of the Property To Be Owned at such times and at such
prices as are generally recognized as appropriate in custom and practice,
without the necessity of any legal process or procedure. Upon such sale,
transfer or disposal, the Transferee shall apply the Proceeds, after
deducting the costs of such sale, transfer or disposal, against the Secured
Obligations. Any excess amount shall be paid to the Transferor and any
Secured Obligations not fully covered by the Proceeds shall remain due and
owing and shall promptly be paid by the Transferor. Alternatively, the
Transferee may, at its sole discretion, choose to maintain possession and
ownership over the Property To Be Owned, in which case, the Transferee
shall value the Property To Be Owned based on commercially reasonable
standards and return any excess amount (net of any and all costs and taxes
involving transfer of the ownership of the Property To Be Owned y) to the
Transferor and any Secured Obligations not fully covered by the value of
the Property To Be Owned shall remain due and owing and shall promptly be
paid by the Transferor.
9.3 If any of the Secured Obligations becomes due and payable, the Transferee
shall at any time have the right to enter upon any premises where the
Property To Be Owned is located, take possession of all or any part thereof
and remove the same from such premises and the Transferor shall not
interfere with such taking of possession and removal.
9.4 The Transferor hereby consents to the procedures set out in Section 9.2 and
9.3 above and waives any and all objections it may have thereto.
6
9.5 The Transferee shall incur no liability as a result of the sale,
maintenance of ownership or any other disposition of the Property To Be
Owned or any part thereof pursuant to Section 9.2 hereof conducted in a
commercially reasonable manner. The Transferor hereby waives any claims
against the Transferee arising by reason of the fact that the price at
which the Property To Be Owned has been sold at such private sale may be
less than the price at which it could have been sold if the Transferee had
not accepted the first offer received or had offered the Property To Be
Owned to more than one offeree.
9.6 The application of the Proceeds shall be determined by the Transferee in
its absolute discretion, subject only to any other agreements between the
Transferee and the Transferor relating thereto and to the requirements of
any applicable law.
As used in this Section 9, "Proceeds" of the Property To Be Owned
shall mean cash, securities and other property realized in respect of,
and distributions in kind of, the Property To Be Owned , including any
thereof received under any reorganization, liquidation or adjustment
of debt of the Transferor.
9.7 In case where the Transferor or a third party provides collateral (other
than the Property To Be Owned) to the Transferee to secure all or any part
of the Secured Obligations, the Transferee shall in its sole discretion
have the authority to determine the priority and extent of enforcement
between/among its rights under this Agreement and such other collateral
arrangements, without the necessity of any legal process or consultation
with the Transferor.
SECTION 10. ASSIGNMENT
This Agreement and the yangdo tambo created hereunder shall be binding upon and
inure to the benefit of the Transferor and the Transferee and their respective
successors and assigns. The Transferee may, in accordance with the Loan
Agreement and applicable laws, at any time assign all or any part of its rights
or obligations hereunder to any party (each an "Assignee"). The parties hereto
agree that to the extent of any transfer, the Assignee shall be deemed to have
the same rights and benefits under this Agreement as it would have had if it
were a Transferee signatory hereunder. The Transferor may not assign any of its
rights or obligations hereunder without the prior written consent of the
Transferee.
SECTION 11. FURTHER ASSURANCE
The Transferor shall do all such acts as may be necessary or appropriate in the
opinion of the Transferor including, but not limited to, the execution and
delivery of all further instruments, notices and documents and all further
action (whilst acting in a commercially reasonable manner) that may be necessary
or appropriate in the opinion of the Transferee in order to perfect and/or
protect any lien granted or purported to be granted hereby or to enable the
Transferee to exercise and enforce its rights and remedies hereunder with
respect to the Property To Be Owned.
7
SECTION 12. EXPENSES, TAXES AND INDEMNIFICATION
The Transferor shall be liable for and shall indemnify the Transferee on demand
against, and shall pay, (a) the reasonable costs, expenses, taxes and other
liabilities (including legal fees on a full indemnity basis) incurred by the
Transferee to protect or enforce the Transferee's title to and interest in the
Property To Be Owned and the Transferee's rights against the Transferor under
this Agreement (including, without limitation, the transfer and assignment by
the Transferor to the Transferee of the Property To Be Owned and the re-transfer
and re-assignment by the Transferee to the Transferor of the Property To Be
Owned), provided that any such enforcement shall be in a commercially reasonable
manner; (b) all withholding, excise, stamp, registration and other taxes, fees
and duties payable in connection with the entry into, performance, enforcement
or admissibility in evidence of this Agreement, and all reasonable costs,
expenses and other liabilities, incurred by the Transferee in connection with,
or otherwise attributable to, receipt by the Transferees of, or payment by
Transferor of, any reasonable costs, expenses and other liabilities and
indemnities provided for in this Section or any other provision of this
Agreement, other than taxes imposed on overall net income of the Transferee.
SECTION 13. MISCELLANEOUS
13.1 Notices. All notices, requests and demands to or upon the respective
parties hereto to be effective, shall be in writing and shall be personally
delivered or sent by facsimile (with subsequent written confirmation) or by
registered or certified first class mail, postage prepaid, return receipt
requested, or by overnight (or next business day) courier service shall be
deemed to have been duly given or made when delivered by hand, on the day
that such facsimile is transmitted, or, if by first class mail, five days
following the date on which such writing is deposited with the postal
service, or the day after the date when deposited with an overnight (or
next business day) courier service, addressed as follows, or to such other
address as either party hereto may hereafter specify in writing to the
other party:
To: ST Assembly Test Services Ltd
0 Xxxxxx Xxxxxx 00
Xxxxxxxxx 000000
Attention: Director, Legal
DID: 00 0000 0000
Fax: 00 000 0000
To: SimmTech Co., Ltd.
00-0 Xxxxxxxx-xxxx
Xxxxxxxx-xx
Xxxxxxxx, Xxxxxxxxxxxxx-Xx
Xxxxx
Attention: Chief Marketing Officer
DID: 00-00-000 9280
Fax: 00-00-000 9048
13.2 Severability. If any of the provisions of this Agreement shall contravene
any law or regulation or be held invalid, this Agreement shall be construed
as if not containing
8
those provisions, and the rights and obligations of the parties hereto
shall be construed and enforced accordingly.
13.3 Amendments, Changes and Modifications. This Agreement shall not be
amended, changed, modified, altered or terminated, unless the prior
written approval of each of the Transferor and the Transferee is obtained.
This Agreement shall not be amended by an oral agreement.
13.4 Counterparts. This Agreement may be executed in multiple counterparts,
each of which, when executed, shall constitute an original but all of
which together shall constitute one and the same instrument.
13.5 Heading. Headings and titles herein are for convenience only and shall not
affect the construction or interpretation of this Agreement.
13.6 Entire Agreement. This Agreement is intended by the parties as the written
final expression of each party's obligations and rights in connection with
the Transferred Property and supersedes all prior and contemporaneous
understandings or agreements concerning the subject matter hereof.
13.7 Conflict. In the case of a conflict between the provisions of this
Agreement and the provisions of the Loan Agreement, the Loan Agreement
shall prevail.
13.8 No Waiver. The Transferee shall not, by any act, delay, indulgence,
omission or otherwise, except by an express written instrument clearly
indicating an intention to waive, be deemed to have waived any right or
remedy hereunder or to have acquiesced in any Event of Default. No failure
to exercise, nor any delay in exercising on the part of the Transferee,
any right, power or privilege hereunder shall operate as a waiver thereof.
No single or partial exercise of any right, power, privilege hereunder
shall preclude any other or further exercise thereof or the exercise of
any other right, power or privilege.
13.9 Remedies Cumulative. The rights and remedies provided herein are
cumulative and may be exercised individually or concurrently, and are not
exclusive of any other rights or remedies provided by law.
13.10 Currencies. All Secured Obligations under this Agreement are payable in
United States dollars (the "Required Currency"). If the Transferee
receives or recovers any moneys in any other currency, whether upon
enforcement of its rights under this Agreement or otherwise, the
Transferor shall indemnify the Transferee against the difference (if any)
between the amount received by the Transferee when it converts amounts
received in currencies other than the Required Currency to the Required
Currency and the amount due in the Required Currency. The Transferor shall
assist the Transferee at all times to obtain any exchange conversion
approval required by the Transferee in connection with this Agreement or
the Secured Obligations.
13.11 Governing Law and Jurisdiction. This Agreement and the security created
pursuant hereto shall be governed by the laws of Korea in all respects,
including matters of construction, validity and performance. The parties
hereto agree to submit to the non-exclusive jurisdiction of the Seoul
District Court for the purpose of this Agreement.
SIGNATURE PAGE TO FOLLOW
9
IN WITNESS WHEREOF, the parties hereto have caused this Yangdo Tambo Agreement
to be duly executed as of the day and year first above written.
TRANSFEROR: SIMMTECH CO. LTD
By: /s/ Se-Xx Xxxx
------------------------------------------
Name: Se-Xx Xxxx
Title: Representative Director
In the presence of: /s/ Young Goo Xxx
--------------------------
TRANSFEREE: ST ASSEMBLY TEST SERVICES LTD
By: /s/ Xxx Xxx Suk
------------------------------------------
Name: Xx. Xxx Xxx Xxxx
Title: President and CEO
In the presence of : /s/ Xxxxxxx Xx
-------------------------
10
SCHEDULE I
---------------------------------------------------------------------------------------
EQUIPMENT UNIT PRICE (US$) QUANTITY PRICE (KUS$)
---------------------------------------------------------------------------------------
DESMEAR+PTH+PNL LINE 4,275,000 1 4,275
---------------------------------------------------------------------------------------
DEBURRING (CHEMICAL) 380,000 1 380
---------------------------------------------------------------------------------------
EXPOSURE 598,500 1 599
---------------------------------------------------------------------------------------
SCAN 304,000 3 912
---------------------------------------------------------------------------------------
VRS 114,000 5 570
---------------------------------------------------------------------------------------
SEMI AUTO PRINTER 47,500 2 95
---------------------------------------------------------------------------------------
ROLL COATER WITH TUNNEL OVEN 532,000 1 532
---------------------------------------------------------------------------------------
AUTO PRINTING SYSTEM 182,000 2 364
---------------------------------------------------------------------------------------
TUNNEL OVEN FOR PRECURE 228,000 2 456
---------------------------------------------------------------------------------------
AUTO EXPOSURE SYSTEM 349,600 1 350
---------------------------------------------------------------------------------------
TUNNEL OVEN FOR FINAL CURE 199,500 1 200
---------------------------------------------------------------------------------------
JET SCRUBBING FOR PRETREATMENT 277,400 1 277
---------------------------------------------------------------------------------------
SOFT AU PLATING LINE 748,885 1 749
---------------------------------------------------------------------------------------
BBT (FOR PBGA) 190,000 1 190
---------------------------------------------------------------------------------------
BBT (FOR CSP) 475,000 1 475
---------------------------------------------------------------------------------------
AVI 211,660 3 635
---------------------------------------------------------------------------------------
VRS 28,500 3 86
---------------------------------------------------------------------------------------
ROUTING RINSING 190,000 1 190
---------------------------------------------------------------------------------------
EXPOSURE SYSTEM 19,000 1 19
---------------------------------------------------------------------------------------
DEVELOP 152,000 1 152
---------------------------------------------------------------------------------------
ALKALINE ETCHING WITH R/STRIPPING 228,000 1 228
---------------------------------------------------------------------------------------
S/W GENESIS LICEN. 46,474 5 232
---------------------------------------------------------------------------
GENESIS GRAHP. 12,350 8 99
---------------------------------------------------------------------------
WORKSTATION 19,627 13 255
---------------------------------------------------------------------------
STELLAR 95,000 1 95
---------------------------------------------------------------------------------------
MACHINE LASER PLOTTER 250,000 3 750
---------------------------------------------------------------------------
DEVELOPER 30,970 3 93
---------------------------------------------------------------------------
FILM AOI 213,300 2 427
---------------------------------------------------------------------------------------
HAST 45,108 1 45
---------------------------------------------------------------------------------------
IR REFLOW 42,505 1 43
---------------------------------------------------------------------------------------
TC 73,733 1 74
---------------------------------------------------------------------------------------
MEASURING SCOPE 30,000 1 30
---------------------------------------------------------------------------------------
VACUUM LAMINATOR 562,500 1 563
---------------------------------------------------------------------------------------
YAG LASER 562,500 1 563
---------------------------------------------------------------------------------------
TOTAL 15,000
=======================================================================================
11
