EXHIBIT 4.7
CONFORMED COPY
DATED 10TH JANUARY, 2002
ST ASSEMBLY TEST SERVICES LTD
- AND -
BRITISH AND MALAYAN TRUSTEES LIMITED
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TRUST DEED
RELATING TO
ST ASSEMBLY TEST SERVICES LTD
S$500,000,000
MULTICURRENCY MEDIUM TERM NOTE PROGRAMME
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[XXXXX & XXXXXXXX LOGO]
00 XXXXXXXX XXXX #00-00
XXXX XXXXX
XXXXXXXXX 000000
C O N T E N T S
CLAUSE HEADING PAGE
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1. INTERPRETATION 1
2. AMOUNT AND STATUS OF NOTES;
COVENANT TO REPAY AND PAY INTEREST 9
3. FORM OF NOTES AND COUPONS 11
4. STAMP DUTIES AND TAXES 12
5. COVENANT TO OBSERVE PROVISIONS OF
NOTES AND TRUST DEED 12
6. ISSUE OF SHARES 12
7. SUBSIDIARY AS XXXXXXXXX 00
0. POWER TO INSTITUTE PROCEEDINGS 13
9. PROOF OF XXXXXXX 00
00. APPLICATION OF MONEYS RECEIVED BY TRUSTEE 14
11. PAYMENT 15
12. DEPOSIT OF UNCLAIMED REDEMPTION MONEYS 15
13. FORFEITURE OF UNCLAIMED REDEMPTION MONEYS 16
14. REPRESENTATIONS AND WARRANTIES 16
15. GENERAL COVENANTS 17
16. REMUNERATION OF TRUSTEE 25
17. ISSUING AND PAYING AGENT 26
18. CANCELLATION OF NOTES AND COUPONS;
RECORD OF CANCELLATION 26
19. NOTEHOLDERS TO BE TREATED AS HOLDING ALL
COUPONS 27
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CLAUSE HEADING PAGE
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20. PROVISIONS SUPPLEMENTAL TO THE TRUSTEES ACT,
CHAPTER 337 OF SINGAPORE 27
21. WAIVER 31
22. COMPETENCE OF A MAJORITY OF TRUSTEES 31
23. INDEMNITY OF TRUSTEE 32
24. AMOUNTS DUE TO TRUSTEE 32
25. ASSUMPTION OF PERFORMANCE OF COVENANTS 32
26. TRUSTEE NOT PRECLUDED FROM ENTERING
INTO CONTRACTS 33
27. CONSENT BY TRUSTEE 33
28. MODIFICATIONS 33
29. DELEGATION BY TRUSTEE 34
30. APPOINTMENT OF TRUSTEE AS ATTORNEY 34
31. APPOINTMENT, RETIREMENT AND REMOVAL OF TRUSTEE 35
32. NOTIFICATION TO THE STOCK EXCHANGE 36
33. POWERS OF TRUSTEE TO BE ADDITIONAL 36
34. CURRENCY INDEMNITY 36
35. COMMUNICATIONS 37
36. PARTIAL INVALIDITY 37
37. GOVERNING LAW 37
SCHEDULE 1
PART I - FORM OF DEFINITIVE NOTE 38
- iii -
CLAUSE HEADING PAGE
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PART II - TERMS AND CONDITIONS OF THE NOTES 41
PART III - FORM OF COUPON FOR FIXED RATE
NOTES AND HYBRID NOTES 72
PART IV - FORM OF COUPON FOR
FLOATING RATE NOTES,
VARIABLE RATE NOTES
AND HYBRID NOTES 73
SCHEDULE 2 - FORM OF TEMPORARY GLOBAL NOTE 75
SCHEDULE 3 - FORM OF PERMANENT GLOBAL NOTE 89
SCHEDULE 4 - PROVISIONS FOR MEETINGS
OF NOTEHOLDERS 101
T H I S T R U S T D E E D is made on 10th January, 0000
X X X X X X N:-
(1) ST ASSEMBLY TEST SERVICES LTD (the "Issuer"), a company incorporated
in Singapore and having its registered office at 0, Xxxxxx Xxxxxx 00,
Xxxxxxxxx 000000; and
(2) BRITISH AND MALAYAN TRUSTEES LIMITED (the "Trustee", which expression
shall, wherever the context so admits, include all persons for the
time being the trustee or trustees of this Trust Deed), a company
incorporated in Singapore and having its registered office at 00,
Xxxxxxx Xxxxxx, #00-00, Xxxxx Xxxxxxxx, Xxxxxxxxx 000000.
W H E R E A S:-
(A) The Issuer has entered into the Programme Agreement (as defined
below) pursuant to which the Issuer may issue from time to time medium term
notes in an aggregate principal amount outstanding at any time not exceeding the
Programme Limit (as defined below).
(B) Each issue of Notes (as defined below) will initially be represented
either (1) by a Temporary Global Note (as defined below) exchangeable for
Definitive Notes (as defined below) or for a Permanent Global Note (as defined
below) which will be exchangeable as described therein for Definitive Notes or
(2) by a Permanent Global Note which will be exchangeable as described therein
for Definitive Notes.
(C) The Trustee is duly registered as a trust company under the
Trust Companies Act, Chapter 336 of Singapore and has agreed to act as trustee
of this Trust Deed for the benefit of the Noteholders upon the terms and subject
to the conditions hereinafter contained.
N O W T H I S T R U S T D E E D W I T N E S S E S A N D
I T I S H E R E B Y A G R E E D A N D D E C L A R E D as follows:-
1. INTERPRETATION
(A) In this Trust Deed, unless there is something in the subject or
context inconsistent therewith:-
"Agency Agreement" means the Agency Agreement dated 10th January, 2002
between (1) the Issuer, (2) Citicorp Investment Bank (Singapore)
Limited, as issuing and paying agent, (3) Citicorp Investment Bank
(Singapore) Limited, as agent bank, and (4) the Trustee, as amended,
varied or supplemented from time to time;
"Agent Bank" means Citicorp Investment Bank (Singapore) Limited at its
office at 000, Xxxxxxxx Xxxxxx 0, #00-00, Xxxxxxxx Xxxxxxxx, Xxxxxxxxx
000000, or at such other or further offices as may from time to time
be designated by the Issuer, approved in advance in writing by the
Trustee and notified to the Noteholders in accordance with Condition
15, or such other or
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further institutions at such offices as may from time to time be
appointed by the Issuer as agent bank for the Notes and the Coupons
and whose appointment shall be approved and notified to the
Noteholders as aforesaid;
"Agents" means the Issuing and Paying Agent and the Agent Bank or
either of them and shall include such other Agent or Agents as may be
appointed from time to time under the Agency Agreement;
"Auditors" means the auditors for the time being of the Issuer or, if
there shall be joint auditors of the Issuer, any one or more of such
joint auditors or, in the event of their being unable or unwilling to
carry out any action requested of them pursuant to the provisions of
this Trust Deed, such other auditors as may be nominated by the Issuer
in consultation with the Trustee for the purpose or, in default of
such nomination or approval, nominated by the Trustee in consultation
with the Issuer;
"business day" means a day (other than Saturday or Sunday) on which
commercial banks are open for business in Singapore;
"Conditions" means, in relation to the Notes of any Series, the terms
and conditions applicable thereto, which shall be substantially in the
form set out in Part II of Schedule 1, as modified, with respect to
any Notes represented by a Global Note, by the provisions of such
Global Note, shall incorporate any additional provisions forming part
of such terms and conditions set out in the Pricing Supplement(s)
relating to the Notes of such Series and shall be endorsed on the
Definitive Notes subject to amendment and completion as referred to in
the first paragraph appearing after the heading "Terms and Conditions
of the Notes" as set out in Part II of Schedule 1, and any reference
to a particularly numbered Condition shall be construed accordingly;
"Coupon" means an interest coupon appertaining to an interest bearing
Definitive Note;
"Couponholders" has the meaning ascribed to it in the Conditions;
"Dealers" means the dealers for the time being under the Programme
Agreement;
"Deed of Covenant" means the deed of covenant dated 10th January, 2002
executed by the Issuer by way of deed poll in relation to the Notes
(which are represented by Global Notes and which are deposited with
the Depository), as amended, varied or supplemented from time to time;
"Definitive Note" means a definitive Note in bearer form, being
substantially in the form set out in Part I of Schedule 1 and having,
where appropriate, Coupons attached on issue;
"Depository" means The Central Depository (Pte) Limited;
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"Depository Agreement" means the depository agreement dated 10th
January, 2002 made between (1) the Issuer, as issuer, and (2) the
Depository, as depository, as amended, varied or supplemented from
time to time;
"Event of Default" means any of the events specified in Condition 9 to
be an event of default;
"Extraordinary Resolution" has the meaning set out in Schedule 4;
"Fixed Rate Notes" means Notes which are to bear interest on the basis
of a fixed rate (in accordance with Condition 4(I)(a));
"Floating Rate Notes" means Notes which are to bear interest on the
basis of a floating rate (in accordance with Condition 4(II)(b));
"Global Note" means a global Note representing Notes of one or more
Tranches of the same Series, being a Temporary Global Note and/or, as
the context may require, a Permanent Global Note, in each case without
Coupons;
"Group" means the Issuer and its subsidiaries and "member of the
Group" shall be construed accordingly;
"Hybrid Notes" means Notes which are to bear interest on the basis of
a fixed rate (in accordance with Condition 4(III)(b)) and a floating
rate (in accordance with Condition 4(III)(c));
"Interest Amounts" has the meaning ascribed to it in Condition
4(II)(d);
"Interest Period" has the meaning ascribed to it in Condition
4(II)(a);
"Issue Date" has the meaning ascribed to it in the Programme
Agreement;
"Issue Documents" means this Trust Deed, the Agency Agreement, the
Depository Agreement and the Deed of Covenant;
"Issuing and Paying Agent" means Citicorp Investment Bank (Singapore)
Limited at its office at 000, Xxxxxxxx Xxxxxx 0, #00-00, Xxxxxxxx
Xxxxxxxx, Xxxxxxxxx 000000, or at such other or further offices as may
from time to time be designated by the Issuer, approved in advance in
writing by the Trustee and notified to the Noteholders in accordance
with Condition 15, or such other or further institutions at such
offices as may from time to time be appointed by the Issuer as issuing
and paying agent for the Notes and the Coupons and whose appointment
shall be approved and notified to the Noteholders as aforesaid;
"Noteholders" has the meaning ascribed to it in the Conditions;
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"Notes" means multicurrency medium term notes of the Issuer to be
issued pursuant to the Programme Agreement and constituted by this
Trust Deed (and shall, where the context so admits, include the Global
Notes);
"outstanding" means, in relation to the Notes of any Series, all the
Notes of such Series issued other than (a) those which have been
redeemed in accordance with the Conditions, (b) those in respect of
which the date for redemption in accordance with the Conditions has
occurred and the redemption moneys in respect thereof (including all
interest (if any) accrued thereon to the date for such redemption and
any interest (if any) payable under the Conditions after such date)
have been duly paid to the Issuing and Paying Agent as provided in the
Agency Agreement and remains available for payment against surrender
of the relevant Notes and/or, as the case may be, Coupons, (c) those
which have been purchased in accordance with Conditions 5(b), 5(c) and
5(g) and cancelled, (d) those which have become void under Condition
8, (e) those mutilated or defaced Notes which have been surrendered in
exchange for replacement Notes pursuant to Condition 12, (f) (for the
purpose only of determining how many Notes are outstanding and without
prejudice to their status for any other purpose) those Notes alleged
to have been lost, stolen or destroyed and in respect of which
replacement Notes have been issued pursuant to Condition 12 and (g)
any Temporary Global Note to the extent that it shall have been
exchanged for one or more Definitive Notes or a Permanent Global Note
pursuant to its provisions and any Permanent Global Note to the extent
that it shall have been exchanged for one or more Definitive Notes, in
either case pursuant to its provisions; provided that for the purposes
of (i) ascertaining the right to attend and vote at any meeting of the
Noteholders, (ii) the determination of how many Notes are outstanding
for the purposes of Schedule 4, (iii) the exercise of any discretion,
power or authority which the Trustee is required, expressly or
impliedly to exercise in or by reference to the interests of the
Noteholders and (iv) the certification (where relevant) by the Trustee
as to whether an Event of Default is in its opinion materially
prejudicial to the interests of the Noteholders, those Notes which are
beneficially held by, or are held on behalf of, the Issuer or any of
its subsidiaries shall (unless and until ceasing to be so held) be
deemed not to remain outstanding;
"Permanent Global Note" means a Global Note representing Notes of one
or more Tranches of the same Series, either on issue or upon exchange
of interests in a Temporary Global Note, being substantially in the
form set out in Schedule 3;
"Potential Event of Default" means an event which with the giving of
notice and/or lapse of time and/or the issuing of a certificate and/or
the fulfilment of any other requirement provided for in Condition 9
would become an Event of Default;
"Pricing Supplement" means, in relation to any Tranche, a pricing
supplement specifying the relevant issue details in relation to such
Tranche, substantially in the form of Appendix 2 to the Programme
Agreement;
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"Principal Subsidiaries" has the meaning ascribed to it in
Condition 9;
"Programme Agreement" means the Programme Agreement dated 10th
January, 2002 made between (1) the Issuer, as issuer, (2) Citicorp
Investment Bank (Singapore) Limited, as arranger, and (3) Citicorp
Investment Bank (Singapore) Limited, as dealer, as amended, varied or
supplemented from time to time;
"Programme Limit" means, subject to the Programme Agreement,
S$500,000,000 or its equivalent in other currencies;
"Rate of Interest" has the meaning ascribed to it in Condition 4;
"Reference Bank" means any person named as such in the Conditions or
any successor Reference Bank;
"Relevant Date" has the meaning ascribed to it in Condition 7;
"repay" shall include "redeem" and vice versa and "repaid",
"repayable", "repayment", "redeemed", "redeemable" and "redemption"
shall be construed accordingly;
"Series" means (a) (in relation to Notes other than Variable Rate
Notes) a Tranche, together with any further Tranche or Tranches, which
are (i) expressed to be consolidated and forming a single series and
(ii) identical in all respects (including as to listing) except for
their respective issue dates, issue prices and/or dates of the first
payment of interest and (b) (in relation to Variable Rate Notes) Notes
which are identical in all respects (including as to listing) except
for their respective issue prices and rates of interest;
"SGX-ST" means the Singapore Exchange Securities Trading Limited;
"Stock Exchange" means the SGX-ST and includes any other stock
exchange on which the Notes are listed and which is for the time being
approved for the purposes of this Trust Deed by the Trustee;
"subsidiary" means any company which is for the time being a
subsidiary (within the meaning of Section 5 of the Companies Act,
Chapter 50 of Singapore) of the Issuer;
"Temporary Global Note" means a Global Note representing Notes of one
or more Tranches of the same Series on issue, being substantially in
the form set out in Schedule 2;
"this Trust Deed" means this Trust Deed and the Schedules (as from
time to time modified in accordance with the provisions herein
contained) and includes any deed or other document executed in
accordance with the provisions hereof (as from time to time modified
as aforesaid) and expressed to be supplemental hereto;
5
"Tranche" means Notes which are identical in all respects (including
as to listing);
"trust corporation" means a trustee corporation as defined in Section
4(1) of the Companies Act, Chapter 50 of Singapore;
"Variable Rate Notes" means Notes which are to bear interest on the
basis of a variable rate (in accordance with Condition 4(II)(c));
words denoting the singular number only shall include the plural
number and vice versa;
words denoting the neuter or masculine gender only shall include the
feminine gender and the masculine or neuter gender, as the case may
be; and
words denoting persons only shall include firms and corporations.
(B) Unless otherwise indicated, in this Trust Deed, references to:-
(a) any provision of any statute shall be deemed also to refer to any
statutory modification or re-enactment thereof or any statutory
instrument, order or regulation made thereunder or under such
re-enactment;
(b) Schedules, Clauses and paragraphs shall be construed as
references to, respectively, the Schedules to and the Clauses and
paragraphs of this Trust Deed;
(c) "Singapore Dollars" and "S$" shall be construed as references to
the lawful currency for the time being of Singapore;
(d) "US Dollars" and "US$" shall be construed as references to the
lawful currency of the time being of the United States of
America;
(e) costs, charges, remuneration or expenses shall be deemed to
include, in addition, goods and services, value added and other
duties or tax (other than income tax) charged or chargeable in
respect thereof;
(f) any action, remedy or method of judicial proceeding for the
enforcement of rights of creditors shall be deemed to include, in
respect of any jurisdiction other than Singapore, references to
such action, remedy or method of judicial proceeding for the
enforcement of rights of creditors available or appropriate in
such jurisdiction as shall most nearly approximate to such
action, remedy or method of judicial proceeding described or
referred to in this Trust Deed;
(g) principal and/or premium and/or interest and/or Redemption
Amounts in respect of the Notes or to any moneys payable by the
Issuer under
6
this Trust Deed or the Notes shall, unless the context otherwise
requires, be construed in accordance with Condition 7; and
(h) the Depository shall, wherever the context so permits, be deemed
to include references to any additional or alternative clearing
system approved by the Issuer, the Issuing and Paying Agent and
the Trustee.
(C) Except to the extent that the context requires otherwise, any
reference in this Trust Deed to:-
an "Act of Parliament" or any Section of, Schedule to or other
provision of an Act of Parliament shall be construed, at any
particular time, as including a reference to any modification,
extension or re-enactment thereof then in force and all instruments,
orders and regulations then in force and made under or deriving
validity from the relevant Act or provision;
an "agency" of a state includes any agency, authority, central bank,
department, government, legislature, minister, ministry, official or
public or statutory person (whether autonomous or not) of, or of the
government of, that state;
the "assets" of any person means all or any part of its business,
undertaking, property, assets, revenues (including any right to
receive revenues) and uncalled capital;
"borrowed money" includes any indebtedness (a) for or in respect of
money borrowed or raised (whether or not for cash), by whatever means
(including acceptances, deposits, discounting, factoring, finance
leases, hire purchase, sale-and-leaseback, sale-and-repurchase and any
form of "off-balance sheet" financing) or (b) for the deferred
purchase price of assets or services (other than goods or services
obtained on normal commercial terms in the ordinary course of
trading);
"consent" also includes an approval, authorisation, exemption, filing,
licence, order, permission, recording or registration (and references
to obtaining consents shall be construed accordingly);
a "directive" includes any present or future directive, regulation,
requirement, rule or credit restraint programme of any agency of any
state (but, if not having the force of law, only if compliance with
the directive is in accordance with the general practice of persons to
whom the directive is intended to apply);
"disposal" includes any sale, assignment, exchange, transfer,
concession, loan, lease, surrender of lease, licence, reservation,
waiver, compromise, release of security, dealing with or the granting
of any option or right or interest whatsoever or any agreement for any
of the same and "dispose" means to make a disposal, and "acquisition"
and "acquire" shall be construed mutatis mutandis;
7
a "guarantee" also includes an indemnity, and any other obligation
(whatever called) of any person to pay, purchase, provide funds
(whether by the advance of money, the purchase of or subscription for
shares or other securities, the purchase of assets or services, or
otherwise) for the payment of, indemnify against the consequences of
default in the payment of, or otherwise be responsible for, any
indebtedness of any other person (and "guaranteed" and "guarantor"
shall be construed accordingly);
"indebtedness" includes any obligation (whether present or future,
actual or contingent, secured or unsecured, as principal, surety or
otherwise) for the payment or repayment of money;
a "law" includes common or customary law and any constitution, decree,
judgment, legislation, order, ordinance, regulation, statute, treaty
or other legislative measure, in each case of any jurisdiction
whatsoever (and "lawful" and "unlawful" shall be construed
accordingly);
something having a "material adverse effect" on the Issuer is to it
having a material adverse effect (1) on its financial condition or
business or on the consolidated financial condition or business of it
and its subsidiaries or (2) on its ability to perform or comply with
its payment or other material obligations under any of the Issue
Documents or the Notes;
a "month" means a period beginning in one calendar month and ending in
the next calendar month on the day numerically corresponding to the
day of the calendar month on which it commences or, where there is no
date in the next calendar month numerically corresponding as
aforesaid, the last day of such calendar month, and "months" and
"monthly" shall be construed accordingly;
any "obligation" of any person under this Trust Deed or any other
agreement or document shall be construed as a reference to an
obligation expressed to be assumed by or imposed on it under this
Trust Deed or, as the case may be, that other agreement or document
(and "due", "owing", "payable" and "receivable" shall be similarly
construed);
a "person" includes any individual, company, corporation, firm,
partnership, joint venture, association, organisation, trust, state or
agency of a state (in each case, whether or not having separate legal
personality);
"related corporation" has the meaning ascribed to it in section 6 of
the Companies Act, Chapter 50 of Singapore;
"security" includes any mortgage, pledge, lien, hypothecation,
security interest or other charge or encumbrance and any other
agreement or arrangement having substantially the same economic effect
(including any "hold-back" or "flawed asset" arrangement) (and
"secured" shall be construed accordingly);
8
"tax(es)" includes any present or future tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature and whatever
called, by whomsoever, on whomsoever and wherever imposed, levied,
collected, withheld or assessed;
a "time of the day" is to Singapore time unless otherwise stated; and
the "winding-up" of a person also includes the amalgamation,
reconstruction, reorganisation, administration, judicial management,
dissolution, liquidation, merger or consolidation of that person, and
any equivalent or analogous procedure under the law of any
jurisdiction in which that person is incorporated, domiciled or
resident or carries on business or has assets.
(D) Unless the context otherwise requires, words or expressions contained
in this Trust Deed shall bear the same meanings as in the Companies Act, Chapter
50 of Singapore.
(E) The headings to Clauses and Conditions are inserted for convenience
only and shall not affect the construction of this Trust Deed, the Notes or the
Coupons.
(F) Terms defined in the Conditions shall have the same meanings in this
Trust Deed, except where the context requires otherwise or where a different
meaning is attributed to the relevant term in this Trust Deed.
(G) A person who is not a party to this Trust Deed has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this Trust
Deed.
2. AMOUNT AND STATUS OF NOTES;
COVENANT TO REPAY AND PAY INTEREST
(A) The Issuer may from time to time issue Notes in Tranches of one or
more Series on a continuous basis in accordance with the Programme Agreement,
the aggregate principal amount of the Notes outstanding at any time not
exceeding the Programme Limit. Upon the issue by the Issuer of any Notes
expressed to be constituted by this Trust Deed, such Notes shall forthwith be
constituted by this Trust Deed without any further formality. As soon as
possible after the issue of any Tranche, the Issuer shall give written notice or
procure that such written notice is given to the Trustee of the issue of such
Tranche, specifying the details included in the relevant Pricing Supplement.
(B) The Issuer hereby covenants with the Trustee that the Notes and the
Coupons will constitute direct, unconditional and unsecured obligations of the
Issuer. The Notes and the Coupons will rank pari passu, without any preference
or priority among themselves, and pari passu with all other present and future
unsecured obligations (other than subordinated obligations and priorities
created by law or this Trust Deed) of the Issuer from time to time outstanding.
(C) On any date when the Notes or any of them become due to be redeemed in
accordance with the Conditions or any of the provisions of this Trust Deed, the
Issuer will unconditionally pay or procure to be paid to or to the order of or
for the account of the Trustee in the currency in which the Notes are
denominated and in immediately available
9
and freely transferable funds or same day funds, the redemption moneys of the
Notes of the relevant Series becoming due for redemption on that date and shall
(subject to the provisions of the Conditions), until such payment is duly made
and (in the case of payment made after the due date or pursuant to Clause 8)
notice thereof is duly given to the Noteholders in accordance with Condition 15,
with effect from the respective dates of issue of the Notes of each Series
unconditionally pay or procure to be paid to or to the order of or for the
account of the Trustee as aforesaid interest on the principal amount of each
Note of each Series (including, without limitation, default interest) at the
relevant rates (as well after as before any judgment or other order of a court
of competent jurisdiction) calculated from time to time in accordance with, for
the periods and on the dates provided for in, the Conditions; provided that
every payment of principal or interest in respect of the Notes of each Series in
accordance with the Conditions made to the order of the Issuing and Paying Agent
in the manner provided in the Agency Agreement shall be in satisfaction pro
tanto of the covenant by the Issuer in this Clause contained except to the
extent that there is default in the subsequent payment thereof to the
Noteholders or, as the case may be, the Couponholders in accordance with the
Conditions. The Trustee shall hold the benefit of this covenant on trust for the
Noteholders and Couponholders of the relevant Series.
(D) At any time after the occurrence of an Event of Default or at any time
with the written consent of the Issuer, the Trustee may:-
(a) by notice in writing to the Issuer and the Issuing and Paying
Agent require the Issuing and Paying Agent pursuant to the Agency
Agreement:-
(i) to act thereafter as the Issuing and Paying Agent of the
Trustee under this Trust Deed and the Notes of such Series
on the terms provided in the Agency Agreement (with
consequential amendments as necessary and except that the
Trustee's liability under the Agency Agreement for the
indemnification, remuneration and all other expenses of the
Issuing and Paying Agent shall be limited to the amounts for
the time being held by the Trustee on the terms of this
Trust Deed) and thereafter to hold all Notes and Coupons and
all moneys, documents and records held by it in respect of
the Notes and Coupons on behalf of the Trustee; or
(ii) to deliver up all Notes and Coupons and all sums, documents
and records held by it in respect of the Notes and Coupons
to the Trustee or as the Trustee shall direct in such
notice,
provided that such notice shall be deemed not to apply to any
documents or records which the Issuing and Paying Agent is
obliged not to release by any law or regulation; and
(b) by notice in writing to the Issuer require it to make all
subsequent payments in respect of the Notes and Coupons to or to
the order of the Trustee and not to the Issuing and Paying Agent;
with effect from the issue of any such notice to the Issuer and
until such notice is
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withdrawn, the proviso to sub-Clause (C) of this Clause shall
cease to have effect.
(E) If any Floating Rate Note, Variable Rate Note or Hybrid Note becomes
due and payable under the Conditions, the Rate of Interest and the Interest
Amounts payable in respect of such Note shall continue to be calculated by the
Agent Bank in accordance with the Conditions (with consequential amendments as
necessary) except that such Rate of Interest and the Interest Amounts payable
need not be published unless the Trustee otherwise requires. The first period in
respect of which interest shall be so calculated shall commence on the expiry of
the Interest Period during which such Notes become so repayable.
(F) Each Series shall form a separate series of Notes and accordingly,
unless for any purpose the Trustee shall reasonably otherwise determine, the
provisions of sub-Clauses (C), (D) and (E) above of this Clause and of Clauses 3
to 33 (both inclusive) and (subject as mentioned therein) Schedule 4 shall apply
mutatis mutandis separately and independently to the Notes of each Series and in
such Clauses and Schedule the expressions "Notes", "Noteholders", "Coupons" and
"Couponholders", together with all other terms that relate to Notes or their
Conditions, shall be construed as referring to those of the particular Series in
question and not of all Series unless expressly as provided, so that each Series
shall be constituted by a separate trust pursuant to sub-Clause (C) above and
that, unless expressly provided, events affecting one Series shall not affect
any other.
(G) For the purposes of any limitation on liabilities pursuant to this
Trust Deed:-
(a) any advances (which shall exclude trade balances in the ordinary
course of business) made by the Issuer or any guarantor company
(if any) to any of their respective holding companies or their
respective holding companies' subsidiaries (if any); or
(b) any investment by the Issuer or any guarantor company (if any) in
the shares of their respective holding companies' subsidiaries
(if any),
shall not be brought into account as an asset unless the company to or in which
such advance or investment is made is a guarantor company and covenants with the
Trustee to limit itself to the same limitation of liabilities as applies by
virtue of this Trust Deed to the Issuer.
3. FORM OF NOTES AND COUPONS
(A) The Notes of each Series will initially be represented by a Temporary
Global Note or a Permanent Global Note relating to such Series. Interests in the
Temporary Global Note relating to such Series will be exchangeable for
Definitive Notes or interests in the Global Note relating to such Series as set
out in the Temporary Global Note relating to such Series. Interests in the
Permanent Global Note relating to such Series will be exchangeable for
Definitive Notes relating to such Series as set out in the Permanent Global Note
relating to such Series.
11
(B) The Definitive Notes of each Series and the Coupons will be security
printed in accordance with applicable legal and stock exchange requirements
substantially in the form set out in Schedule 1. The Notes will be endorsed with
the Conditions.
(C) Each Temporary Global Note and Permanent Global Note shall be affixed
with the Common Seal of the Issuer and signed manually by two Directors or a
Director and the Secretary of the Issuer and shall be authenticated by or on
behalf of the Issuing and Paying Agent. Each Definitive Note and Coupon shall be
signed manually or in facsimile by a duly authorised officer of the Issuer and
shall be authenticated by or on behalf of the Issuing and Paying Agent. The
Issuer may use the facsimile signature of any person who shall have been a
Director, the Secretary or a duly authorised officer (as the case may be) of the
Issuer at the date hereof notwithstanding the fact that any such person shall
have ceased to hold such office or, as the case may be, be so authorised at the
date of delivery of any Note or Coupon and Notes and Coupons so delivered
incorporating such signature shall (provided that they have been duly
authenticated) be valid and binding obligations of the Issuer.
4. STAMP DUTIES AND TAXES
The Issuer will pay all stamp duties and goods and services, value
added or other similar duties or taxes (if any) payable in Singapore on the
issue of the Notes and the Coupons, the initial delivery of the Global Notes and
the execution of the Issue Documents. If the Notes shall become due and payable,
the Trustee (or any Noteholder or Couponholder, where permitted under this Trust
Deed so to do) shall take any proceedings to enforce the obligations of the
Issuer under the Issue Documents or under the Notes or the Coupons or any of
them and for the purposes of such proceedings, any of the Issue Documents or any
Notes or Coupons are taken into any jurisdiction and any stamp duties or goods
and services, value added or other similar duties or taxes become payable
thereon or in respect thereof in any such jurisdiction, the Issuer will pay (or
reimburse the person making a valid payment of) such stamp duties or goods and
services, value added or other duties or taxes (including penalties or interest,
if any).
5. COVENANT TO OBSERVE PROVISIONS OF NOTES AND TRUST DEED
The Issuer hereby covenants with the Trustee that it will comply with
those provisions of this Trust Deed which are expressed to be binding on it and
that it will perform and observe the same and comply with and procure compliance
with (a) the terms of each of the Notes in accordance with the Conditions and
(b) the terms of the Issue Documents. The Notes and Coupons shall be held
subject to and with the benefit of the provisions contained in this Trust Deed,
all of which shall be binding upon the Issuer, the Noteholders and the
Couponholders and all persons claiming through or under them respectively. The
Trustee shall itself be entitled to enforce the obligations of the Issuer under
the Notes and Conditions as if the same were set out and contained in this Trust
Deed which shall be read and construed as one document with the Notes.
6. ISSUE OF SHARES
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The Issuer reserves the right to issue shares or rights to subscribe
for shares to its shareholders or otherwise, either for cash or as a bonus
distribution, and none of the Noteholders shall have any right to participate in
such issue unless otherwise resolved by the Issuer in general meeting.
7. SUBSIDIARY AS GUARANTOR
The Issuer expressly covenants with the Trustee that the Issuer will,
at the request in writing of the Trustee in relation to Notes which are listed
on the SGX-ST but subject to any governmental or statutory restrictions,
regulations, restraints or other control, cause any wholly-owned subsidiary
(formed or acquired before or after the date of this Trust Deed) to become a
guarantor for the Issuer guaranteeing the due and punctual payment by the Issuer
(whether at maturity, redemption or otherwise) of the principal, interest and
other moneys from time to time payable under or in respect of the Notes or this
Trust Deed.
8. POWER TO INSTITUTE PROCEEDINGS
(A) (a) At any time after the Notes shall have become due and repayable,
the Trustee may, without further notice to the Issuer or the Noteholders or
Couponholders, institute such proceedings against the Issuer as it may think fit
to enforce repayment of the Notes and payment of accrued interest.
(b) At any time after an Event of Default has occurred or after the Notes
shall have become due and repayable, the Trustee may, without further notice to
the Issuer or the Noteholders or Couponholders, institute such proceedings
against the Issuer as it may think fit to enforce the provisions of the Issue
Documents (other than those provisions relating to the repayment of the Notes
and payment of accrued interest).
(B) The Trustee shall not be bound to take any steps (including, without
limitation, giving notice that the Notes are due and repayable in accordance
with Condition 9) to enforce the performance by the Issuer of any of the
provisions of the Issue Documents or of the Notes or the Coupons unless (a) it
shall have been so requested in writing by the holders of not less than 30 per
cent. in principal amount of the Notes outstanding or so directed by an
Extraordinary Resolution and (b) it shall have been indemnified to its
satisfaction by the Noteholders against all actions, proceedings, claims,
demands and liabilities to which it may thereby become liable and all costs,
charges, damages and expenses which may be incurred by it in connection
therewith.
(C) Only the Trustee may pursue the remedies available under the general
law or under the Issue Documents, the Notes or the Coupons to enforce the rights
of the Noteholders or Couponholders or the provisions of the Issue Documents,
the Notes or the Coupons. No Noteholder or Couponholder shall be entitled to
proceed directly against the Issuer to enforce the performance of any of the
provisions of the Issue Documents, the Notes or the Coupons unless the Trustee,
having become bound as aforesaid to take proceedings, fails or neglects to do so
within a reasonable period and such failure or neglect is continuing.
9. PROOF OF DEFAULT
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Should the Trustee (or any Noteholder or Couponholder, where entitled
under this Trust Deed to do so) take legal proceedings against the Issuer to
enforce any obligation under this Trust Deed or under the Notes or the Coupons:-
(a) proof therein that as regards any specified Note default has been
made in paying any principal due to the relative Noteholder shall
(unless the contrary be proved) be sufficient evidence that like
default has been made as regards all other Notes which are then
due and repayable; and
(b) proof therein that as regards any specified Coupon default has
been made in paying any interest due to the relative Couponholder
shall (unless the contrary be proved) be sufficient evidence that
like default has been made as regards all other Coupons which are
then due and payable.
Except as herein otherwise expressly provided, the Trustee shall be and is
hereby authorised to assume without enquiry, and it is hereby declared to be the
intention of the Trustee that it shall assume without enquiry, in the absence of
actual knowledge or express notice to the contrary, that the Issuer is duly
performing and observing all the covenants and provisions contained in this
Trust Deed and on its part to be performed and observed and that no Event of
Default and Potential Event of Default shall have occurred.
10. APPLICATION OF MONEYS RECEIVED BY TRUSTEE
(A) The Trustee shall hold the moneys arising from any exercise of the
powers contained in this Trust Deed and the Trustee shall hold all moneys
received by it under this Trust Deed after the Notes shall have become due and
payable upon trust (subject to sub-Clause (B) below) to apply the same:-
(a) first, in paying or providing for the payment or satisfaction of
all costs, charges, expenses (including legal expenses), losses
and liabilities properly incurred in or about the exercise of
such powers or otherwise in relation to this Trust Deed and
payments made by the Trustee under any of the provisions
contained in this Trust Deed and of all remuneration payable to
the Trustee under this Trust Deed with interest thereon as
hereinafter provided;
(b) secondly, in or towards payment pari passu and rateably of all
arrears of interest remaining unpaid on the Notes;
(c) thirdly, in or towards payment pari passu and rateably of all
principal moneys due in respect of the Notes; and
(d) fourthly, in payment of the balance (if any) to the Issuer
(without prejudice to any questions as to how such moneys should
be dealt with as between the Issuer and any other person or
persons for the time being entitled thereto in priority to the
Issuer).
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Without prejudice to the provisions of this Clause, if the Trustee shall hold
any moneys which represent principal or interest in respect of Notes or Coupons
which have become void under Condition 8, the Trustee shall (subject to paying
or providing for the payment or satisfaction of the said costs, charges,
expenses and liabilities of, and payments by, the Trustee referred to above and
the payment of the remuneration of the Trustee (together with interest thereon
referred to above)) pay the same forthwith to the Issuer (without prejudice to
any questions as to how such surplus should be dealt with as between the Issuer
and any other person or persons for the time being entitled thereto in priority
to the Issuer).
(B) If the amount of the moneys at any time available for the payment of
principal and interest in respect of the Notes shall be less than ten per cent.
in principal amount of the Notes then due and repayable, the Trustee may, at its
discretion, invest such moneys upon some or one of the investments hereinafter
authorised with power from time to time, at the like discretion, to vary such
investments; and such investments with the resulting income therefrom may be
accumulated until the accumulations, together with any other funds for the time
being under the control of the Trustee and available for such payment, shall
amount to at least ten per cent. of the principal amount of the Notes then
outstanding and then such accumulations and funds (after deduction of any taxes
applicable thereto) shall be applied as specified in sub-Clause (A) above.
11. PAYMENT
(A) Any payment to be made in respect of the Notes or the Coupons by the
Issuer or the Trustee may be made as provided in the Conditions and any payment
so made shall be a good discharge pro tanto to the Issuer or the Trustee, as the
case may be.
(B) Upon any payment under any of the provisions of Clause 10 which is
made in the manner provided in sub-Clause (A) above, the Note or Coupon in
respect of which such payment is made shall, if the Trustee so requires, be
produced to the person by or through whom such payment is made and the Issuer
shall cause such person to enface a memorandum of the amount and date of payment
on such Note or Coupon or, in the case of payment in full, shall cause to be
surrendered to the Issuer such Note or Coupon or (if the Issuer agrees) shall
cancel the same or procure the same to be cancelled and shall certify or procure
the certification of such cancellation.
12. DEPOSIT OF UNCLAIMED REDEMPTION MONEYS
In the event of a holder of any Notes which the Issuer is ready to pay
off or satisfy failing to claim or accept the redemption moneys due to him and
failing to surrender such Notes to the Issuer, within 30 days after the due date
for redemption of such Notes, the Issuer shall at the request of the Trustee or
shall otherwise be at liberty to deposit or procure the deposit with a bank in
an interest bearing account in the name of the Trustee or pay to the Trustee an
amount equal to the amount due to such Noteholder and upon such deposit or
payment being made the Notes which the Issuer is ready to pay off or satisfy
shall be deemed to have been paid off or satisfied in accordance with the
provisions hereof. After provision for payment of or satisfaction of such Notes
is made by such deposit or payment of the funds required for the purpose, the
Trustee shall not be responsible for the safe custody of such moneys or for
interest thereon except such interest (if any) as the said moneys may earn
whilst on deposit less any costs, charges or expenses incurred or levied by the
Trustee in relation thereto.
15
13. FORFEITURE OF UNCLAIMED REDEMPTION MONEYS
Any moneys deposited with or paid to the Trustee for the payment of
the principal of or interest on any Notes or Coupon and remaining unclaimed for
five years after the appropriate Relevant Date for payment shall (subject to
paying or providing for the payment or satisfaction of the costs, charges,
expenses and liabilities of, and payments by, the Trustee referred to in Clause
10(A) and the payment of the remuneration of the Trustee), on written notice
being given to the Trustee by the Issuer, be repaid by the Trustee to the Issuer
(without prejudice to any questions as to how such surplus should be dealt with
as between the Issuer and any other person or persons for the time being
entitled thereto in priority to the Issuer), and all liability of the Trustee
and the Issuer under the Notes and the Coupons with respect to such moneys shall
thereupon cease, provided that the Trustee before being required to make any
such repayment to the Issuer may, at the expense of the Issuer, cause to be
published prior to the date of such repayment at least twice and at intervals of
not less than 21 days in a leading English language newspaper in Singapore a
notice that such moneys remain unclaimed and that after the date stated therein
(not being less than 21 days after the date of the second such notice) any
unclaimed balance of the said moneys then remaining including any accrued
interest thereon, after deduction of all relevant expenses, shall be returned to
the Issuer.
14. REPRESENTATIONS AND WARRANTIES
The Issuer represents and warrants to and for the benefit of the
Trustee as follows:-
(a) it is a company duly incorporated and is validly existing under
the laws of Singapore with corporate power and authority to
conduct its business in each jurisdiction where it carries on
business and to own its assets;
(b) it has the corporate power to enter into, exercise its rights and
perform and comply with its obligations under each of the Issue
Documents and the Notes;
(c) all action, conditions and things required to be taken, fulfilled
and done (including the obtaining of any necessary consents) in
order (i) to enable it lawfully to enter into, exercise its
rights and perform and comply with its obligations under each of
the Issue Documents and the Notes, (ii) to ensure that those
obligations are valid, legally binding and enforceable except
that (1) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights and (2)
the availability of equitable remedies may be affected by
equitable principles generally, (iii) to ensure that those
obligations rank and will at all times rank in accordance with
Clause 2(B) and (iv) to make the Issue Documents and the Notes
admissible in evidence in the courts of Singapore have been
taken, fulfilled and done;
(d) its entry into, exercise of its rights and/or performance of or
compliance with its obligations under each of the Issue Documents
and the Notes do not and will not violate, or exceed any
borrowing or
16
other power or restriction granted or imposed by, (i) any law to
which it is subject or (ii) any provision of its Memorandum and
Articles of Association;
(e) its obligations under each of the Issue Documents and the Notes
are valid, binding and enforceable in accordance with their
respective terms except that (i) the enforceability thereof may
be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights and (ii) the availability of equitable remedies
may be affected by equitable principles generally;
(f) no information, exhibit or report furnished in writing by it to
the Trustee in connection with the negotiation of this Trust Deed
contained any misstatement of fact as at the date of such exhibit
or report or as at the date when such information was given which
was material in the context of this Trust Deed or the Notes or
omitted to state a fact as at such date which in any such case
would be materially adverse to the interests of the Trustee or
the Noteholders under this Trust Deed or the Notes; and
(g) each of the above representations and warranties will be correct
and complied with in all respects on the date of this Trust Deed
and on each Issue Date as if repeated then by reference to the
then existing circumstances.
15. GENERAL COVENANTS
So long as any of the Notes remains outstanding, the Issuer hereby
covenants with the Trustee that it will:-
(a) at all times carry on and conduct its affairs and procure each of
its Principal Subsidiaries to carry on and conduct their affairs
in a proper and efficient manner;
(b) at all times keep proper books of account;
(c) procure that no Event of Default applicable to it shall occur and
give notice in writing to the Trustee promptly upon becoming
aware of the occurrence of any Event of Default or Potential
Event of Default and without waiting for the Trustee to take any
action in respect thereof;
(d) at all times give to the Trustee such information regarding
itself, its subsidiaries and the Notes as it shall reasonably
require for the purpose of the discharge of the duties, powers,
trusts, authorities and discretions vested in it by this Trust
Deed or by operation of law and in particular, but without
prejudice to the generality of the foregoing, will, subject to
any written law for the time being in force, to the same extent
as if the Trustee or any approved company auditor appointed by
the Trustee were a director of the Issuer:-
17
(i) (in the event that the Trustee has reasonable grounds to
believe that an Event of Default has occurred or is likely
to occur or a Potential Event of Default has occurred) make
available for its or his inspection the whole of the
accounting and other records of the Issuer and its
subsidiaries; and
(ii) (in the event that the Trustee has reasonable grounds to
believe that an Event of Default has occurred or is likely
to occur or a Potential Event of Default has occurred) give
to it or him such information as it or he requires with
respect to all matters relating to the accounting and other
records of the Issuer and its subsidiaries,
provided that so long as no Event of Default has occurred, this
undertaking shall not apply to confidential information;
(e) send to the Trustee (i) as soon as available and in any event
within 150 days after the end of each of its financial years
(beginning with the current one), a copy of its annual report and
audited accounts (both consolidated and unconsolidated) as at the
end of and for that financial year and (ii) as soon as available
and in any event within 90 days after the end of the first six
months of each of its financial years (beginning with the current
one), a copy of its unaudited accounts (both consolidated and
unconsolidated) as at the end of and for that six month period;
(f) make available for inspection by Noteholders at its registered
office copies of each annual balance sheet and profit and loss
statement sent to the Trustee pursuant to paragraph (e) above as
soon as practicable after the date of issue thereof;
(g) send to (i) the Trustee prior to the date of publication, a copy
of each notice to the Noteholders to be published in accordance
with Condition 15 and (ii) the Stock Exchange prior to the date
of publication, three copies of each notice to the Noteholders to
be published in accordance with Condition 15;
(h) at the same time as sent to its shareholders, deliver to the
Trustee copies of any circular, document or other written
information sent to its shareholders as such;
(i) at all times execute and do all such further documents, acts and
things as are necessary at any time or times in the reasonable
opinion of the Trustee to give effect to the terms and conditions
of the Issue Documents;
(j) in the event of the unconditional payment to the Issuing and
Paying Agent or the Trustee of any sum due in respect of the
Notes or any of them or any of the Coupons relative thereto being
made after the due date for payment in respect thereof, forthwith
cause notice to be
18
given to the Noteholders in accordance with Condition 15 that
such payment has been made;
(k) if the Notes are so listed, use all reasonable endeavours (i) to
maintain the listing of the Notes on the Stock Exchange or, if
the Issuer is unable to do so having used all reasonable
endeavours or if the maintenance of such listing is agreed by the
Trustee to be unduly onerous or if the Trustee is satisfied that
the respective interests of the Noteholders would not be
materially prejudiced, use all reasonable endeavours to obtain
and maintain the quotation for, or listing of, the Notes on such
other stock exchange or exchanges as it may (with the approval of
the Trustee (such approval not to be unreasonably withheld))
decide and (ii) to procure that there will at all times be
furnished to any stock exchange on which the Notes are for the
time being listed or quoted on its application such information,
documents, instruments and undertaking and do all things that may
be necessary on its part as such stock exchange may require in
accordance with its normal requirements or in accordance with any
arrangements for the time being made with any such stock
exchange;
(l) comply in all material respects with its obligations under the
Agency Agreement and the Depository Agreement and, without
prejudice to the generality of the foregoing, at all times
maintain an Issuing and Paying Agent with a specified office in
Singapore and (in the case of Floating Rate Notes and Variable
Rate Notes), an Agent Bank with a specified office in Singapore
and three Reference Banks;
(m) use reasonable endeavours to ensure that the Issuing and Paying
Agent complies with its obligations under the Agency Agreement
and the Agent Bank complies with its obligations under the Agency
Agreement, not make any modification or amendment to the Agency
Agreement or (unless the same is required by the Depository) the
Depository Agreement without the prior written consent of the
Trustee (such consent not to be unreasonably withheld) and use
reasonable endeavours to make such amendments to the Agency
Agreement or the Depository Agreement as may reasonably be
required by the Trustee (subject to the agreement of the Issuing
and Paying Agent, the Agent Bank or, as the case may be, the
Depository);
(n) in the event that the Agent Bank shall not perform its
obligations under Condition 4 to notify the Issuer of the Rate of
Interest in respect of any Interest Period, forthwith notify the
Trustee of such fact;
(o) give not less than 30 days' notice to the Noteholders of the
proposed appointment or removal of any Agent and, if the Trustee
considers it necessary, of any change in the name or specified
office of such Agent (subject to the Issuer having received
notice of such change in
19
accordance with the provisions of the Agency Agreement) but so
that no such notice of termination or appointment of any Agent
with a specified office in Singapore shall take effect until a
new Agent with a specified office in Singapore approved by the
Trustee has been appointed on terms approved by the Trustee in
accordance with the Agency Agreement;
(p) use reasonable endeavours to procure that the Issuing and Paying
Agent shall notify the Trustee forthwith in the event that it
does not on the due date for repayment of the Notes or any of
them or the due date for payment of any of the Coupons relative
thereto, receive unconditionally the full amount in the currency
in which the Notes are denominated of the moneys payable on such
due date on all such Notes or Coupons, as the case may be;
(q) not do or permit any act or omission whereby it would without the
prior consent of the Trustee cease to be domiciled or to be
resident (for the purposes of taxation jurisdiction) in
Singapore;
(r) within one month after 31st March, 30th June, 30th September and
31st December in each year (commencing with 31st March, 2002)
prepare and lodge with the Trustee and the Stock Exchange a
report signed by two Directors of the Issuer relating to the
quarterly period prior to the relevant date, which report shall
state:-
(i) whether or not the limitations on the amount that the
Issuer may borrow as herein provided have been exceeded;
(ii) whether or not the Issuer and the guarantor companies
(if any) have observed and performed all the covenants
and obligations binding on them by or pursuant to this
Trust Deed;
(iii) whether or not any Event of Default has occurred and, if
so, whether it is continuing and particulars thereof;
(iv) whether or not any material trading or capital loss has
been sustained by the Group or any guarantor company (if
any);
(v) whether or not any circumstances materially affecting
the Group or any guarantor company (if any) have
occurred which adversely affect the Notes and, if so,
particulars of those circumstances;
(vi) whether any contingent liabilities have been incurred by
the Issuer or any guarantor company (if any) and, if so,
the amount thereof and whether or not any contingent
liability has matured or is likely to mature within the
succeeding 12 months which will materially affect the
Issuer or any guarantor company (if any) in its ability
to repay the Notes;
20
(vii) whether or not there has been any change in any
accounting method or methods of valuation of assets or
liabilities of the Issuer;
(viii) whether or not any circumstances have arisen which
render adherence to the existing method of valuation of
assets or liabilities of the Issuer misleading or
inappropriate; and
(ix) whether or not any substantial change has taken place in
the nature of the business of the Issuer or any
guarantor company (if any) since the date of this Trust
Deed and, if so, particulars of that change;
(s) (without prejudice to paragraph (e) above), send to the Trustee
and to the Stock Exchange within three months of the expiration
of the first six months of each of its financial years a copy of
its unaudited consolidated balance sheet and profit and loss
account as at the end of and for the relevant six month period;
(t) as soon as practicable but not later than 15 days after request
by the Trustee, deliver a certificate signed by one of its duly
authorised officers to the effect that, to the best of its
knowledge, information and belief:-
(i) there did not exist, as at a date not more than five days
prior to the date of the certificate, any Event of Default
or, if such an Event of Default did then exist, specifying
the same; and
(ii) as at a date not more than five days prior to the date of
such certificate, it has complied with its obligations
contained in this Trust Deed or, if such is not the case,
specifying the circumstances of such non-compliance;
(u) send to the Trustee as soon as practicable and in any event
within seven days after being so requested by the Trustee in
writing, a certificate of the Issuer signed by any duly
authorised officer setting out the total principal amount of
Notes which, at the date of such certificate, were held by or on
behalf of the Issuer or its subsidiaries;
(v) ensure that any Director shall immediately notify the Trustee in
the event that the Issuer or its Directors shall become aware
that the Issuer is unable to fulfil or comply with any of the
provisions of this Trust Deed;
(w) not pay any dividend, whether in cash or in specie, reduce its
capital or make any other distribution to its shareholders while
any interest on any of the Notes is overdue and unpaid or while
any of the Notes which has become payable has not been paid off
as a consequence of default by the Issuer;
21
(x) subject to any order to the contrary that may be issued by the
Registrar of Companies, comply in all respects with the
requirements of Section 200 of the Companies Act, Chapter 50 of
Singapore;
(y) if the Issuer shall become obliged to redeem the Notes prior to
their stated maturity date in accordance with Condition 9, not
less than 10 days nor more than 30 days prior to the date of
publication of the notice of redemption required to be given to
the Noteholders in accordance with the Conditions give notice of
such intention to the Issuing and Paying Agent and the Trustee,
stating the date on which the Notes are to be redeemed;
(z) obtain or cause to be obtained, maintain in full force and effect
and comply in all respects with any conditions or restrictions
imposed in connection with every consent, authorisation, approval
or other orders of all regulatory or relevant authorities and do,
or cause to be done, all other acts and things, which may from
time to time be necessary under applicable law for the continued
due performance of its obligations under the Notes, the Coupons
or the Issue Documents;
(aa) file or procure the filing of a "Return on Debt Securities" in
the form prescribed under the 1999 Monetary Authority of
Singapore ("MAS") Guidelines to both the Monetary Authority of
Singapore and the Inland Revenue Authority of Singapore within
ten business days from the relevant date of issue of the Notes of
each Series and any other related documents required by the
relevant authorities to be timeously filed;
(bb) ensure that its payment obligations under this Trust Deed rank
and will at all times rank equally and rateably in all respects
with all its other unsecured indebtedness except for such
indebtedness as would, by virtue only of the law in force in
Singapore, be preferred in the event of a winding up;
(cc) not, and will ensure that none of its Principal Subsidiaries
will, create or have outstanding any mortgage, charge, pledge or
other security interest over the whole or any part of its
undertakings, assets, property or revenues, present or future,
where such mortgage, charge, pledge or other security interest is
given, or is intended to be given, to secure the indebtedness of,
or guaranteed by, the Issuer or any of its Principal Subsidiaries
unless such mortgage, charge, pledge or other security interest
is forthwith extended equally and rateably to the indebtedness of
the Issuer in respect of the Notes, except for:-
(i) liens arising solely by operation of law (or by an agreement
evidencing the same) in the ordinary course of its business
in respect of indebtedness which either (1) has been due for
less than 14 days or (2) is being contested in good faith
and by appropriate means; and
22
(ii) any security created or to be created with the prior consent
of the Trustee;
(dd) not, and will ensure that none of its Principal Subsidiaries
will, (whether by a single transaction or a number of related or
unrelated transactions and whether at one time or over a period
of time) sell, transfer, lease out, lend or otherwise dispose of
(whether outright, by a sale-and-repurchase or sale-and-leaseback
arrangement, or otherwise) all or substantially all of its assets
nor of any part of its assets which, either alone or when
aggregated with all other disposals required to be taken into
account under this paragraph (dd), is substantial in relation to
its assets, or those of itself and its Principal Subsidiaries,
taken as a whole or the disposal of which (either alone or when
so aggregated) could have a material adverse effect on it. The
following disposals shall not be taken into account under this
paragraph (dd):-
(i) disposals in the ordinary course of business;
(ii) disposals on normal commercial terms of obsolete assets or
assets no longer required for the purpose of the Issuer's
or, as the case may be, such Principal Subsidiary's
business;
(iii) the exchange of assets of a similar nature and value;
(iv) any sale-and-leaseback of assets of an aggregate amount at
any one time not exceeding 35 per cent. of the total
assets of the Issuer or, as the case may be, such
Principal Subsidiary (as determined by the Trustee by
reference to the latest audited financial statements of
the Issuer or, as the case may be, such Principal
Subsidiary);
(v) any sale or lease of assets by the Issuer or, as the case
may be, such Principal Subsidiary to a special purpose
vehicle, being a transaction having the principal
commercial or economic effect of an "off-balance sheet"
financing scheme, with a leaseback of the assets to the
Issuer or, as the case may be, such Principal Subsidiary
and an option on the part of the Issuer or, as the case
may be, such Principal Subsidiary to repurchase the
assets; and
(vi) any disposal which the Trustee shall have agreed shall not
be taken into account;
(ee) ensure that there is no material change in the nature of its
business, or the business of itself and its subsidiaries taken as
a whole (whether by a single transaction or a number of related
or unrelated transactions, whether at one time or over a period
of time and whether by disposal, acquisition or otherwise);
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(ff) insure and keep adequately insured, and procure that each of its
Principal Subsidiaries shall insure and keep adequately insured
with reputable insurers, all its and their, as the case may be,
real property which are of an insurable nature against fire and
other risks normally insured against by the Issuer and its
Principal Subsidiaries in respect of such real property, and pay
or procure to be duly paid all premiums or other sums payable in
respect of such insurance. The Trustee shall be at liberty (but
shall not be obliged) from time to time to accept as sufficient
evidence of the fact a certificate under the hand of one of its
duly authorised officers to the effect that such property and
assets as ought to be insured in accordance with the provisions
of this paragraph (ff) were, at the date of such certificate,
duly insured to such value as aforesaid and that all premiums
have been paid to the date of such certificate;
(gg) not, unless requested by law, undertake any re-organisation,
amalgamation, reconstruction, merger or consolidation with any
other company or person or any other schemes of compromise or
arrangement affecting its present constitution except where such
event does not or is not likely to affect its ability to perform
any of its payment or other material obligations under the Notes
or this Trust Deed;
(hh) not, without the prior consent in writing of the Trustee, alter
any provision in its Memorandum and Articles of Association
relating to its borrowing powers and principal business
activities;
(ii) file or cause to be filed all tax returns required to be filed
with the relevant authorities in Singapore and pay or cause to be
paid all taxes shown to be due and payable on such returns or any
assessments made against it (other than those being contested in
good faith and on reasonable grounds and where such payment may
be lawfully withheld and in any event by such time as is
necessary to prevent enforcement action against it);
(jj) give to the Trustee, within 14 days of a request by the Trustee,
a certificate by the Auditors listing those subsidiaries (if any)
of the Issuer that as at the date of such request were Principal
Subsidiaries;
(kk) keep and maintain its assets in good working order and condition
subject to normal wear and tear and casualty loss;
(ll) promptly on demand reimburse the Trustee for any reasonable costs
incurred in appointing and retaining reputable professional
consultants as and when the Trustee believes any such appointment
to be necessary;
(mm) ensure that the Programme Limit is not exceeded at any time; and
(nn) from time to time as requested or contemplated by this Trust Deed
or as reasonably requested by the Trustee, make available through
the
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Issuing and Paying Agent or otherwise such documents as may be
required by the Noteholders in connection with the meetings of
Noteholders.
16. REMUNERATION OF TRUSTEE
(A) The Issuer shall (subject as provided below) until the trusts hereof
shall be finally wound up pay to the Trustee remuneration for its ordinary
services as Trustee such sum at such times and in such manner as is separately
agreed between the Issuer and the Trustee or such other sum as may from time to
time be agreed between the Issuer and the Trustee. All such remuneration shall
accrue from day to day from the date of this Trust Deed and shall be payable in
priority to payments to the Noteholders and Couponholders. The Trustee shall not
be entitled to remuneration (except for such remuneration as may be agreed
between the Issuer and the Trustee) in respect of any period after the date on
which, all the unredeemed Notes having become due for redemption, the redemption
moneys in respect thereof (together with interest thereon to the date of
redemption) have been paid to the Issuing and Paying Agent unless and until upon
due presentation of any Note payment of the moneys due in respect thereof is
improperly withheld or refused, in which event remuneration will commence again
to accrue from the date of such presentation.
(B) At any time after the occurrence of an Event of Default or in the
event of the Trustee considering it expedient or necessary or being required to
undertake duties which the Trustee and the Issuer agree to be of an exceptional
nature or otherwise outside the scope of the normal duties of the Trustee under
this Trust Deed, the Issuer shall pay the Trustee such additional remuneration
as may be agreed between them. In the event of the Trustee and the Issuer
failing to agree upon whether such duties are of an exceptional nature or
otherwise outside the scope of the normal duties of the Trustee under this Trust
Deed, or failing to agree upon such additional remuneration, such matters shall
be determined by a merchant bank (acting as an expert and not as an arbitrator)
selected by the Trustee and approved by the Issuer or, failing such approval,
nominated by the President for the time being of The Law Society of Singapore
and the decision of any such merchant bank or the President for the time being
of The Law Society of Singapore shall be final and binding on the Issuer and the
Trustee. The fees and expenses payable in respect of such determination shall be
borne by the Issuer.
(C) In addition to remuneration under this Trust Deed, the Issuer shall,
on written request by the Trustee, pay all reasonable costs, charges, expenses
(including legal expenses) and liabilities which the Trustee may incur in
relation to the preparation and execution of the Issue Documents and the
exercise of the powers or the execution of the trusts vested in it by or
pursuant to the Issue Documents.
(D) All payments of fees under this Trust Deed will be made without
deduction or withholding for or on account of any taxes, duties or other levies
(including but not limited to any taxes, duties or levies on the supply of goods
and services). If the Issuer is required by law to deduct or withhold any such
taxes, duties or levies, the Issuer shall pay such additional amounts as shall
be necessary in order that the net amounts received by the Trustee after such
deduction or withholding shall equal the amounts which would have been
receivable by the Trustee had no such deduction or withholding been required to
be made.
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(E) Without prejudice to sub-Clause (D) above, where any law or regulation
or official directive of a competent authority relating to any tax, duty or levy
on the supply of goods and services in Singapore arising from or in connection
with the enactment of the Goods and Services Tax Act, Chapter 117A of Singapore
shall subject the Trustee to any tax, duty or levy in respect of the fees
receivable by the Trustee, the Trustee shall inform the Issuer of such event and
the Issuer shall, within 21 days of any notice from the Trustee issued from time
to time to the Issuer pay to the Trustee such amounts as would compensate the
Trustee for any such tax, duty or levy paid by it. The certificate of the
Trustee as to the amount of payment to be made by the Issuer and the basis and
calculation thereof shall (save for manifest error) be binding on the Issuer.
(F) Unless otherwise specifically stated in any discharge pursuant to this
Trust Deed, the provisions of this Clause shall continue in full force and
effect notwithstanding such discharge.
(G) The Trustee shall be entitled in its absolute discretion to determine
in respect of which Series of Notes any costs, charges, expenses or liabilities
incurred under this Trust Deed have been incurred or to allocate any such costs,
charges, expenses or liabilities as between the Notes of any Series.
17. ISSUING AND PAYING AGENT
The Issuer shall ensure that the power to appoint and to terminate the
appointment of the Issuing and Paying Agent shall at all times be vested in the
Issuer. The Issuer may terminate the appointment of the Issuing and Paying Agent
by giving at least 60 days' written notice of termination to the Trustee and the
Issuing and Paying Agent, provided that (a) such notice shall not expire less
than 30 days before or after any due date for payment of any Notes or Coupons,
(b) no such notice shall take effect until a new Issuing and Paying Agent has
been appointed and (c) the Issuer shall comply with the provisions of paragraph
(l) of Clause 15. Notice shall be given to the Noteholders in accordance with
Condition 15 within 30 days after any appointment of an Issuing and Paying Agent
or no later than the date on which the termination of the appointment of the
Issuing and Paying Agent takes effect.
18. CANCELLATION OF NOTES AND COUPONS; RECORD OF CANCELLATION
(A) All Notes redeemed by the Issuer or purchased and elected to be
cancelled by the Issuer or any of its subsidiaries or which, being mutilated or
defaced, have been surrendered and replaced pursuant to Condition 12, together
in each case with all unmatured Coupons attached thereto or surrendered
therewith, and all Coupons paid or which, being mutilated or defaced, have been
surrendered and replaced pursuant to Condition 12 shall be cancelled forthwith
by or on behalf of the Issuer. The Issuer shall procure that a certificate
stating (a) the aggregate amount paid in respect of Notes that have been
redeemed and cancelled and the aggregate amount paid in respect of any related
Coupons that have been paid and cancelled or in respect of interest paid on a
Global Note (other than Notes purchased by the Issuer or any of its subsidiaries
and surrendered for cancellation and/or Coupons attached thereto and surrendered
therewith), (b) the certificate numbers of such Notes, (c) the total number and
maturity dates of such Coupons, (d) the certificate numbers of those Notes which
have been purchased and cancelled as aforesaid
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and (e) the total number and maturity date of unmatured Coupons not surrendered
with Definitive Notes redeemed or purchased and cancelled shall be given to the
Trustee by the Issuing and Paying Agent (if the Issuing and Paying Agent is not
also the Trustee) as soon as reasonably possible and in any event within one
month after the end of each calendar quarter during which such redemption,
purchase, replacement or payment (as the case may be) and cancellation takes
place. Such certificate may be accepted by the Trustee as conclusive evidence of
repayment or discharge pro tanto of the Notes and/or of payment of interest
thereon, as the case may be.
(B) The Issuer shall procure that there shall be kept a full and complete
record of all Notes and Coupons (other than serial numbers of Coupons except as
regards unmatured Coupons not attached to or surrendered with Notes presented
for redemption or cancellation), their redemption, purchase, payment, exchange,
cancellation and destruction and of all replacement Notes or Coupons issued in
substitution for lost, stolen, mutilated, defaced or destroyed Notes or Coupons,
and the Issuer shall further procure that such record shall be made available to
the Trustee at all reasonable times.
19. NOTEHOLDERS TO BE TREATED AS HOLDING ALL COUPONS
(A) Wherever in this Trust Deed, the Trustee is required or entitled to
exercise a trust, duty, right, power, authority or discretion by reference to
the interests of the Noteholders, the Trustee shall assume, notwithstanding any
express notice to the contrary, that each Noteholder is the holder of all
Coupons appertaining to each Note of which it is the holder.
(B) Neither the Issuer nor the Trustee shall be required to give any
notice to the Couponholders for any purpose under this Trust Deed and the
Couponholders shall be deemed for all purposes to have notice of the contents of
any notice given to the Noteholders in accordance with Condition 15.
(C) Except as ordered by a court of competent jurisdiction or as required
by law, the Issuer, the Issuing and Paying Agent and the Trustee may deem and
treat the bearer of any Notes and the bearer of any Coupon as the absolute owner
of such Notes or Coupon, as the case may be, (whether or not such Notes or
Coupon shall be overdue and notwithstanding any notice of ownership or writing
thereon or notice of any previous loss or theft thereof) for the purpose of
receiving payment thereof or on account thereof and for all other purposes and
the Issuer, the Issuing and Paying Agent and the Trustee shall not be affected
by notice to the contrary. All payments made to any such bearer shall be valid
and, to the extent of the sums paid, effective to satisfy and discharge the
liability for the moneys payable upon such Notes and Coupons.
20. PROVISIONS SUPPLEMENTAL TO THE TRUSTEES ACT,
CHAPTER 337 OF SINGAPORE
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By way of supplement to the Trustees Act, Chapter 337 of Singapore, it
is expressly declared as follows:-
(a) The Trustee may in relation to any of the Issue Documents act on
the opinion, advice or certificate of, or any information
obtained from, any lawyer, valuer, banker, securities company,
broker, accountant, surveyor, auctioneer or other expert in
Singapore or elsewhere whether obtained by the Trustee, the
Issuer, any subsidiary or the Issuing and Paying Agent or
otherwise, and shall not be responsible for any loss occasioned
by so acting. Any such opinion, advice, certificate or
information may be sent or obtained by letter, telegram, telex,
cable or facsimile transmission and the Trustee shall not be
liable for acting on any opinion, advice, certificate or
information purporting to be conveyed by such means even though
it shall contain some error or shall not be authentic.
(b) The Trustee shall not be bound to give notice to any person of
the execution of any of the Issue Documents.
(c) The Trustee shall not be bound to make any enquiry or to take any
steps to ascertain whether any Event of Default or Potential
Event of Default has occurred and, until it shall have actual
knowledge or shall have express notice to the contrary, the
Trustee shall be entitled to assume without enquiry (it being the
intention that it should assume without enquiry) that no such
event has happened and that the Issuer is performing all its
obligations under the Issue Documents and under the Notes and
Coupons.
(d) The Trustee shall not be responsible for having acted upon any
resolution purporting to have been passed at any meeting of the
Noteholders in respect whereof minutes have been made and signed
even though it may subsequently be found that there was some
defect in the constitution of such meeting or the passing of such
resolution or that for any reason such resolution was not valid
or binding upon the Noteholders or Couponholders.
(e) The Trustee may call for and shall be at liberty to accept a
certificate signed by any officer of the Issuer as to any fact or
matter on which the Trustee may need or wish to be satisfied as
sufficient evidence thereof and a like certificate that any
properties or assets in the opinion of the person so certifying
have a particular value or produce a particular income or are
suitable for such company's purposes as sufficient evidence that
they have that value or produce that income or are so suitable
and a like certificate to the effect that any particular dealing,
transaction, step or thing is in the opinion of the person so
certifying expedient as sufficient evidence that it is expedient
and the Trustee shall not be bound in any such case to call for
further evidence or be responsible for any loss that may be
occasioned by its failing to do so or by its acting on any such
certificate.
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(f) In the absence of knowledge or express notice to the contrary,
the Trustee may assume without enquiry that no Notes are for the
time being held by or on behalf of the Issuer or its
subsidiaries.
(g) The Trustee may hold or deposit the Issue Documents and any deed
or documents relating to the Issue Documents or to the Notes in
any safe deposit, safe or other receptacle selected by the
Trustee, in any part of the world, or with any bank or banking
company, or with any lawyer or firm of lawyers, of good repute,
in any part of the world, and the Trustee shall not be
responsible for or required to insure against any loss incurred
in connection with any such holding or deposit and may pay all
sums to be paid on account of or in respect of any such deposit.
(h) The Trustee shall, as regards all the powers, trusts, rights,
duties, authorities and discretions vested in it by the Issue
Documents or by operation of law, have absolute and uncontrolled
discretion as to the exercise or non-exercise thereof and shall
be in no way responsible for any loss, costs, damages, expenses
or inconvenience which may result from the exercise or
non-exercise thereof.
(i) The Trustee may, in the conduct of its trust business, instead of
acting personally, employ and pay an agent selected by it,
whether or not a lawyer or other professional person, to transact
or conduct, or concur in transacting or conducting, any business
and to do or concur in doing all acts required to be done by the
Trustee (including the receipt and payment of money) and,
provided the Trustee shall have exercised reasonable care in the
selection of such agent, the Trustee shall not in any way be
responsible for any misconduct or default on the part of any such
person appointed by it under any of the Issue Documents or be
bound to supervise the proceedings or acts of any such person.
(j) Any Trustee of this Trust Deed being a lawyer, accountant,
banker, broker or other person engaged in any profession or
business shall be entitled to charge and be paid all usual
professional and other charges for business transacted and acts
done by him or any partner of his or by his firm on matters
arising in connection with the trusts hereof and also his
reasonable charges in addition to disbursements for all other
work and business done and all time spent by him or his partner
or firm on matters arising in connection herewith, including
matters which might or should have been attended to in person by
a trustee not being a lawyer, accountant, banker, broker or other
professional person.
(k) The Trustee shall not be liable to the Issuer or any Noteholder
or Couponholder by reason of having accepted as valid or not
having rejected any Note or Coupon purporting to be such and
subsequently found to be forged or not authentic.
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(l) Any consent given by the Trustee for the purposes of this Trust
Deed may be given on such terms and subject to such conditions
(if any) as the Trustee thinks fit.
(m) The Trustee shall not (unless ordered so to do by a court of
competent jurisdiction) be required to disclose to any Noteholder
or Couponholder any confidential, financial, price sensitive or
other information made available to the Trustee by the Issuer or
its subsidiaries in connection with any of the Issue Documents
and no Noteholder or Couponholder shall be entitled to take any
action to obtain from the Trustee any such information.
(n) The Trustee as between itself and the Noteholders and/or the
Couponholders shall have full power to determine all questions
and doubts arising in relation to any of the provisions of any of
the Issue Documents and every such determination, whether made
upon such a question actually raised or implied in the acts or
proceedings of the Trustee, shall be conclusive and shall bind
the Noteholders and the Couponholders.
(o) Where it is necessary or desirable for any purpose in connection
herewith to convert any sum from one currency to another, it
shall (unless otherwise provided hereby or required by law) be
converted at such rate or rates, in accordance with such method
and as at such date for the determination of such rate of
exchange, as may reasonably be specified by the Trustee in its
absolute discretion, and any rate, method and date so specified
shall be binding on the Issuer, the Noteholders and the
Couponholders.
(p) The Trustee may determine whether or not an Event of Default or
Potential Event of Default has occurred or is capable of remedy
and if the Trustee shall determine that any such Event of Default
or Potential Event of Default has or has not occurred or is or is
not capable of remedy, such determination shall be conclusive and
binding upon the Issuer, the Noteholders and the Couponholders.
(q) The Trustee shall not be responsible for the receipt or
application by the Issuer of the proceeds of the issue of the
Notes nor for the delivery of the Notes to the persons entitled
thereto.
(r) The Trustee shall not be concerned with or responsible for any
consolidation, amalgamation, merger or reconstruction of the
Issuer or any sale or transfer of all or substantially all of the
assets of the Issuer or the form or substance of any plan
relating thereto or the consequences thereof to any Noteholder or
Couponholder.
(s) The Trustee shall not be concerned, and need not enquire, as to
whether or not any Notes are issued in breach of the Programme
Limit.
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(t) The Trustee assumes no responsibility for the correctness of the
Recitals to this Trust Deed (other than Recital (C) above) which
shall be taken as statements by the Issuer, nor shall the Trustee
by the execution of this Trust Deed be deemed to make any
representation as to the validity, sufficiency or enforceability
against the Issuer of this Trust Deed or any part thereof.
Provided nevertheless that none of the provisions of this Trust Deed shall, in
any case in which the Trustee has failed to show the degree of care and
diligence required of it having regard to the provisions of this Trust Deed
conferring on the Trustee any duties, powers, trusts, authorities or
discretions, relieve or indemnify the Trustee from or against any liability for
breach of trust or any liability which by virtue of any rule of law would
otherwise attach to it in respect of any fraud, negligence, wilful default,
breach of duty or breach of trust of which it or its employees or officers may
be guilty in relation to its duties under this Trust Deed.
21. WAIVER
The Trustee may, without the consent of the Noteholders or
Couponholders and without prejudice to its rights in respect of any subsequent
breach, condition, event or act from time to time and at any time, but only if
and in so far as in its opinion the interests of the Noteholders will not be
materially prejudiced thereby:-
(a) waive on such terms and conditions (if any) as may to it seem
expedient, any breach by the Issuer of any provisions contained
in the Issue Documents or the Notes, without prejudice to its
rights in respect of any other or subsequent breach;
(b) authorise on such terms and conditions (if any) as aforesaid, any
act or thing which would but for this provision and such
authorisation be in breach of any provision of the Issue
Documents, the Notes or the Coupons;
(c) determine on such terms and conditions (if any) as aforesaid that
any Event of Default or Potential Event of Default shall not be
treated as such for the purposes of this Trust Deed; and
(d) at the request of the Issuer waive or modify any terms and
conditions imposed by it pursuant to paragraphs (a), (b) or (c)
above or in connection with any consent given by it pursuant to
any other provision of any of the Issue Documents.
Provided always that the Trustee shall not exercise any powers conferred on it
by this Clause in contravention of any express direction given by an
Extraordinary Resolution or a request made pursuant to Condition 9, but no such
direction or request shall affect any waiver, authorisation or determination
previously given or made. Any such waiver, authorisation or determination shall
be binding on the Noteholders and the Couponholders and if, but only if, the
Trustee shall so require, shall be notified by or on behalf of the Issuer to the
Noteholders as soon as practicable thereafter in accordance with Condition 15.
22. COMPETENCE OF A MAJORITY OF TRUSTEES
31
Whenever there shall be more than two Trustees having equal authority
under this Trust Deed, the majority of such Trustees shall (provided such
majority includes a trust corporation) be competent to execute and exercise all
the duties, powers, trusts, rights, authorities and discretions vested by this
Trust Deed in the Trustee generally.
23. INDEMNITY OF TRUSTEE
Without prejudice to the right of indemnity by law given to trustees
and subject to the proviso to Clause 20 the Trustee and every attorney, manager,
delegate, agent or other person appointed by the Trustee under the provisions of
this Trust Deed shall be entitled to be indemnified by the Issuer in respect of
all liabilities, costs, charges and expenses properly incurred by it or him in
relation to any of the Issue Documents or to the preparation and execution or
purported execution of any of the Issue Documents or to the proper carrying out
of the trusts of any of the Issue Documents or to the exercise of any trusts,
rights, powers, authorities or discretions vested in it or him pursuant to any
of the Issue Documents and against all actions, proceedings, costs, claims and
demands in respect of any matter or thing properly done or omitted in any way
relating to any of the Issue Documents and, failing due payment by the Issuer,
the Trustee may in priority to any payments to the Noteholders and the
Couponholders retain and pay out of any moneys in its or his hands arising from
the trusts of this Trust Deed all sums necessary to effect such indemnity and
also the remuneration of the Trustee as hereinbefore provided.
24. AMOUNTS DUE TO TRUSTEE
The Issuer shall on demand by the Trustee or any attorney, agent or
other person appointed by the Trustee pursuant to this Trust Deed pay every sum
of money (other than payments in respect of the Notes or the Coupons) which
shall from time to time be payable to any such person under any provisions of
the Issue Documents together with interest at the rate of two per cent. per
annum above the prime lending rate for Singapore Dollars quoted by The
Development Bank of Singapore Ltd from time to time calculated from the date
when the same shall have been advanced or paid or become payable or due to the
date of payment by the Issuer (as well after as before, and as an independent
obligation not merging with, any judgment) and the Issuer will on demand pay and
satisfy or obtain the release of such person from any liabilities incurred by
him pursuant to any of the Issue Documents.
25. ASSUMPTION OF PERFORMANCE OF COVENANTS
The Trustee is hereby authorised and it is declared that it is
entitled to assume without enquiry (in the absence of knowledge by or an express
notice to it to the contrary) that the Issuer is duly performing and observing
all the covenants and provisions contained in the Issue Documents, the Notes and
the Coupons and on its part to be performed and observed and notwithstanding
knowledge by or notice to the Trustee of any breach of any such covenant,
condition, provision or obligation it shall be in the discretion of the Trustee
whether to take any action or proceedings or to enforce the performance thereof
and the Trustee shall not be bound to enforce the same or any of the covenants,
conditions, provisions or obligations of the Issue Documents, the Notes or the
Coupons unless and until in any of such cases the Trustee is so directed by an
Extraordinary Resolution, or so requested in writing by the holder or holders of
not less than 30 per cent. in principal amount of the Notes for the time being
outstanding, and then only if it shall be indemnified to its
32
satisfaction against all actions, proceedings, costs, claims and demands to
which it may render itself liable and all costs, charges, damages and expenses
which it may incur by so doing.
26. TRUSTEE NOT PRECLUDED FROM ENTERING INTO CONTRACTS
No Trustee of this Trust Deed nor any corporation related to the
Trustee and no director or officer of the Trustee or any corporation related to
the Trustee shall by reason of the fiduciary position of such Trustee be in any
way precluded from making any contracts or entering into any transactions with
the Issuer (or any of its subsidiaries) in the ordinary course of business, or
from acting as an agent in respect of the Notes or the Coupons, whether directly
or through a subsidiary or associated company, or from accepting the trusteeship
of any other debenture stock, debentures or securities of the Issuer (or any of
its subsidiaries), or any company in which the Issuer is interested and, without
prejudice to the generality of this Trust Deed, it is expressly declared that
such contracts and transactions include any contract or transaction in relation
to the placing, underwriting, purchasing, subscribing for or dealing with or
lending money upon the Notes or any other notes, warrants, stock, shares,
debenture stock, debentures or other securities of the Issuer (or any of its
subsidiaries), or any company in which the Issuer is interested or any contract
of banking or insurance with the Issuer (or any of its subsidiaries) and that
the Trustee shall not be accountable to the Noteholders or Couponholders or to
the Issuer (or any of its subsidiaries) for any profits, fees, commissions,
discounts or share of brokerage resulting from any such contracts or
transactions and the Trustee shall also be at liberty to retain the same for its
own benefit.
27. CONSENT BY TRUSTEE
Where under any of the Issue Documents provision is made for the
giving of any consent or the exercise of any discretion by the Trustee any such
consent may be given and any such discretion may be exercised on such terms and
conditions (if any) as the Trustee may think fit and may be given or exercised
with retrospective effect. The Issuer shall observe and perform any such terms
and conditions and the Trustee may at any time waive or agree a variation in
such terms and conditions.
28. MODIFICATIONS
(A) The Trustee may at any time or times without any consent or sanction
of the Noteholders or the Couponholders concur with the Issuer in making any
modification (a) to this Trust Deed (other than any provision of this Trust Deed
referred to in the proviso to paragraph 2 of Schedule 4) or any of the other
Issue Documents which in the opinion of the Trustee it may be expedient to make,
provided the Trustee is of the opinion that such modification will not be
materially prejudicial to the interests of the Noteholders or (b) to this Trust
Deed (including any provision of this Trust Deed referred to in the proviso to
paragraph 2 of Schedule 4) or any of the other Issue Documents which in the
opinion of the Trustee is of a formal, minor or technical nature, to correct a
manifest error or to comply with mandatory provisions of Singapore law. Any such
modification shall be binding on the Noteholders and the Couponholders and,
unless the Trustee otherwise agrees in writing, the Issuer shall cause such
modification to be notified to the Noteholders as soon as practicable thereafter
in accordance with Condition 15.
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(B) The Trustee shall be entitled to, and if so requested by the Issuer
shall, consent, on its own behalf, on behalf of the Noteholders and (if the
Couponholders are deemed to constitute or are treated as a separate class of
creditors of the Issuer from the Noteholders for the purposes thereof) on behalf
of the Couponholders or any of them, to any such scheme for the reduction of
share capital or reconstruction of the Issuer or any such merger, amalgamation
or consolidation of the Issuer with any other company as shall have been
effectively approved by the Trustee or approved or assented to by the
Noteholders by an Extraordinary Resolution of the Noteholders (if such approval
or assent is required under the Conditions and/or this Trust Deed) and to any
addition or modification thereto or condition which any court or other authority
of applicable jurisdiction may think fit to approve or impose.
29. DELEGATION BY TRUSTEE
The Trustee may, in the execution and exercise of all or any of the
trusts, powers, authorities and discretions vested in it by any of the Issue
Documents, act by a responsible officer or officers for the time being of the
Trustee and the Trustee may also, with the consent of the Issuer (such consent
not to be unreasonably withheld), provided that no such consent shall be
required if an Event of Default has occurred, whenever it thinks it expedient in
the interests of the Noteholders, whether by power of attorney or in such other
manner as it may think fit, delegate to any person or persons or fluctuating
body of persons selected by it all or any of the trusts, rights, powers, duties,
authorities and discretions vested in it by any of the Issue Documents and any
such delegation may be made upon such terms and conditions (including power to
sub-delegate with the approval of the Trustee) and subject to such regulations
as the Trustee may in the interests of the Noteholders, think fit and, provided
that the Trustee shall have exercised reasonable care in the selection of such
delegate, it shall not be under any obligation to supervise the proceedings of
and shall not be in any way or to any extent responsible for any loss incurred
by any misconduct or default on the part of any such delegate or sub-delegate.
The Trustee shall give notice to the Issuer of the appointment of any delegate
as aforesaid and shall procure that any delegate shall give notice to the Issuer
of any appointment of any sub-delegate.
30. APPOINTMENT OF TRUSTEE AS ATTORNEY
The Issuer hereby, in order to secure the interest of, and the
performance of the obligations owed to, the Trustee under this Trust Deed,
irrevocably appoints the Trustee (including any attorney of the Trustee
appointed by it for the purpose) and every such agent appointed under Clause
20(i) to be its attorney and on its behalf and in its name or otherwise at any
time after an Event of Default has occurred to execute and do all such
assurances, deeds, acts and things which it may or ought to do under the
covenants and provisions contained in this Trust Deed and generally in its name
and on its behalf to exercise all or any of the rights, powers, authorities and
discretions conferred by this Trust Deed on the Trustee or any such attorney or
agent and (without prejudice to the generality of the foregoing) to seal and
deliver and otherwise perfect any deed, assurance, agreement, instrument or act
which it or he may deem proper in or for the purpose of exercising any of such
rights, powers, authorities and discretions and the Issuer hereby ratifies and
confirms and agrees to ratify and confirm whatsoever any such attorney shall do
or purport to do by virtue of this Clause and all moneys expended by any such
attorney shall be deemed to be expenses incurred by the Trustee under this Trust
Deed.
34
31. APPOINTMENT, RETIREMENT AND REMOVAL OF TRUSTEE
(A) The power of appointing new Trustees of this Trust Deed shall be
vested in the Issuer but no person shall be so appointed who shall not have
previously been approved by an Extraordinary Resolution of Noteholders in
respect of the Notes of all Series. A trust corporation shall at all times be a
Trustee of this Trust Deed and may be sole Trustee of this Trust Deed. Any
appointment of a new Trustee or new Trustees of this Trust Deed shall as soon as
practicable thereafter be notified by the Issuer to the Issuing and Paying Agent
and to the Noteholders in accordance with Condition 15.
(B) Any Trustee may retire at any time upon giving not less than three
months' notice in writing to the Issuer or such shorter notice as the Issuer may
agree without assigning any reason and without being responsible for any costs
occasioned by such retirement and the Noteholders shall have power, exercisable
by Extraordinary Resolution of Noteholders in respect of the Notes of all
Series, to remove any Trustee provided that the retirement or removal of any
sole trustee shall not become effective until a trust corporation is appointed
as successor Trustee. The Issuer undertakes that, if a sole Trustee or sole
trust corporation gives notice of retirement or an Extraordinary Resolution is
passed for its removal under this Clause, it shall procure that another trust
corporation be appointed as Trustee.
(C) The Trustee shall, notwithstanding the provisions of sub-Clause (A)
above, have power, with the consent of the Issuer (such consent not to be
unreasonably withheld), provided that no such consent shall be required if an
Event of Default has occurred by notice in writing to the Issuer to appoint any
person either to act as separate Trustee, or as co-Trustee jointly with the
Trustee:-
(a) if the Trustee considers such appointment to be in the interests
of the Noteholders;
(b) for the purpose of conforming with any legal requirement,
restriction or condition in any jurisdiction in which any
particular act is to be performed; or
(c) for the purpose of obtaining (or facilitating the obtaining) in
any jurisdiction a judgment, or the enforcement in any
jurisdiction against the Issuer or any of its subsidiaries of
either a judgment already obtained or any of the provisions of
this Trust Deed.
The Issuer hereby irrevocably appoints the Trustee to be its attorney in its
name and on its behalf to execute any such instrument of appointment. Any person
so appointed shall (subject to the provisions of this Trust Deed) have such
trusts, rights (including as to reasonable remuneration), powers, duties,
authorities and obligations as shall be conferred or imposed by the instrument
of appointment. The Trustee shall have power in like manner to remove any person
so appointed. At the request of the Trustee, the Issuer shall forthwith execute
all such documents and do all such things as may be required to perfect such
appointment or removal and hereby irrevocably appoints the Trustee to be its
attorney in its
35
name and on its behalf to do the same. Such a person shall (subject always to
the provisions hereof) have such trusts, powers, authorities and discretions
(not exceeding those conferred on the Trustee hereby) and such duties and
obligations as shall be conferred or imposed by the instrument of appointment.
Such remuneration as the Trustee may pay to such person, together with any
attributable costs, charges and reasonable expenses incurred by it in performing
its function as such separate Trustee or co-Trustee, shall for the purposes of
this Trust Deed be treated as costs, charges and expenses reasonably incurred by
the Trustee. Before appointing such person to act as separate Trustee or
co-Trustee the Trustee shall (unless it is not, in the opinion of the Trustee,
reasonably practicable to do so) give notice to the Issuer of its intention to
make such appointment (and the reason therefor) and shall give due consideration
to representations made by the Issuer concerning such appointment.
32. NOTIFICATION TO THE STOCK EXCHANGE
The Issuer agrees that the Trustee may give notice in writing to the
Stock Exchange of the occurrence of any Event of Default unless prior to such
notification, such Event of Default has been remedied, and the Issuer hereby
authorises and consents to such notification by the Trustee.
33. POWERS OF TRUSTEE TO BE ADDITIONAL
The powers conferred by this Trust Deed upon the Trustee shall be in
addition to any powers which may from time to time be vested in it by general
law or as the holder of any of the Notes.
34. CURRENCY INDEMNITY
(A) Any amount received or recovered in respect of any sum payable by the
Issuer under or in connection with this Trust Deed, the Notes and the Coupons,
including damages, in a currency (such currency being referred to as the
"Relevant Currency") other than the currency in which such sum is expressed to
be due under this Trust Deed or the Notes (the "Contractual Currency") (whether
as a result of, or of the enforcement of, a judgment or order of a court of any
jurisdiction, in the winding-up or dissolution of the Issuer or otherwise) will
only constitute a discharge to the Issuer to the extent of the Contractual
Currency amount which the Trustee, any Noteholder or any Couponholder is able to
purchase with the Relevant Currency so received or recovered on the date of that
receipt or recovery (or, if it is not practicable to make that purchase on that
date, on the first date on which it is practicable to do so).
(B) If that Contractual Currency amount is less than the Contractual
Currency amount expressed to be due to the recipient under this Trust Deed, the
Notes or the Coupons, the Issuer will indemnify it against any loss sustained by
it as a result. In any event, the Issuer will indemnify the recipient against
the cost of making any such purchases.
(C) These indemnities constitute a separate and independent obligation
from the other obligations in this Trust Deed, will give rise to a separate and
independent cause of action, will apply irrespective of any indulgence granted
by the Trustee and/or any Noteholder or Couponholder and will continue in full
force and effect despite any judgment, order, claim or proof for a liquidated
amount in respect of any sum due under this Trust
36
Deed, the Notes and/or the Coupons or any judgment or order. No proof or
evidence of any actual loss may be required.
35. COMMUNICATIONS
All communications under this Trust Deed shall be by facsimile or in
writing delivered by hand or sent by prepaid registered post. Each communication
shall be made to the relevant party at the facsimile number or address marked
for the attention of the person from time to time designated in writing by the
Issuer or, as the case may be, the Trustee for the purpose. The initial
facsimile number, address and person so designated by the Issuer and the Trustee
are set out below:-
The Issuer
ST Assembly Test Services Ltd,
0, Xxxxxx Xxxxxx 00,
Xxxxxxxxx 000000.
Telephone Number: 000 0000/000 0000
Facsimile Number: 755 1585/755 3153
Attention: Xx Xxx Xxx Xxxx/Xx Xxxxxxxx Xxxx
The Trustee
British and Malayan Trustees Limited,
00, Xxxxxxx Xxxxxx, #00-00,
Xxxxx Xxxxxxxx,
Xxxxxxxxx 000000.
Telephone Number: 000 0000
Facsimile Number: 535 1258
Attention: Mr Xxxx Xxxx
A communication will be deemed received (if by facsimile) when despatched and
receipt in good order is acknowledged by telephone, (if writing by hand) when
left at the address required by this Clause or (if in writing sent by prepaid
registered post) within two days after being sent by prepaid registered post
addressed to the relevant party at that address, in each case in the manner
required by this Clause.
36. PARTIAL INVALIDITY
The illegality, invalidity or unenforceability of any provision of
this Trust Deed under the law of any jurisdiction shall not affect its legality,
validity or enforceability under the law of any other jurisdiction nor the
legality, validity or enforceability of any other provision.
37. GOVERNING LAW
This Trust Deed shall be governed by, and construed in accordance
with, the laws of Singapore.
37
S C H E D U L E 1
PART I
FORM OF DEFINITIVE NOTE
ST ASSEMBLY TEST SERVICES LTD
(Incorporated with limited liability in Singapore)
[Denomination] Series No. [ ]
Certificate No. [ ]
S$500,000,000 MULTICURRENCY MEDIUM TERM NOTE PROGRAMME
[Title of Issue]
This Note forms one of the Series of Notes referred to above of ST Assembly Test
Services Ltd (the "Issuer") designated as specified in the title hereof. The
Notes are constituted by a Trust Deed (the "Trust Deed") dated 10th January,
2002 made between (1) the Issuer and (2) British and Malayan Trustees Limited
(the "Trustee"), as trustee for the holders of the Notes. The Notes are subject
to, and have the benefit of, the Trust Deed and the Terms and Conditions
endorsed hereon (the "Conditions").
The issue of the Notes was authorised by resolutions of the Board of Directors
of the Issuer passed on 25th September, 2001.
The Issuer for value received hereby unconditionally promises to pay to the
bearer on the Maturity Date stated above (if this Note is stated to be a Fixed
Rate Note or Hybrid Note) or on the Interest Payment Date (as defined in the
Conditions) falling in the Redemption Month stated above (if this Note is stated
to be a Floating Rate Note, Variable Rate Note or Hybrid Note) or on such
earlier date as the Redemption Amount may become payable in accordance with the
Conditions upon presentation and surrender of this Note a principal sum equal to
the Redemption Amount stated above and to pay interest on the said principal sum
from the Interest Commencement Date stated above at the Interest Rate stated
above (if this Note is stated to be a Fixed Rate Note), at the rates determined
in accordance with Condition 4(II) (if it is stated to be a Floating Rate Note
or Variable Rate Note) or at the Interest Rate stated above and at the rates
determined in accordance with Condition 4(III) (if it is stated to be a Hybrid
Note) in arrear on the dates for payment provided for in the Conditions together
with such other amounts (if any) as may be payable, all subject to and in
accordance with the Conditions and the provisions of the Trust Deed.
38
This Note shall not become valid or obligatory for any purpose unless and until
the Certificate of Authentication hereon has been signed by or on behalf of
Citicorp Investment Bank (Singapore) Limited, as Issuing and Paying Agent.
IN WITNESS whereof the Issuer has caused this Note to be duly signed on its
behalf.
ST ASSEMBLY TEST SERVICES LTD
By:
--------------------------------
Duly Authorised Officer
Issued as of the Issue Date specified above.
CERTIFICATE OF AUTHENTICATION
This Note is authenticated by or on behalf of
the Issuing and Paying Agent, Citicorp
Investment Bank (Singapore) Limited.
By:
------------------------------------------
duly authorised signatory
(Without recourse, warranty or liability)
--------------------------------------------------------------------------------
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
39
On the reverse:-
TERMS AND CONDITIONS OF THE NOTES
[The Terms and Conditions that are set out in Part II of Schedule 1 to the Trust
Deed as amended by and incorporating any additional provisions forming part of
such Terms and Conditions and set out in the relevant Pricing Supplement will be
set out here]
Issuing and Paying Agent and Agent Bank
Citicorp Investment Bank (Singapore) Limited,
000, Xxxxxxxx Xxxxxx 0, #00-00,
Xxxxxxxx Xxxxxxxx,
Xxxxxxxxx 000000.
40
S C H E D U L E 1
PART II
TERMS AND CONDITIONS OF THE NOTES
The following is the text of the terms and conditions which, subject to
completion and amendment and as supplemented or varied in accordance with the
provisions of the relevant Pricing Supplement, will be endorsed on the Notes in
definitive form issued in exchange for the Global Note(s) representing each
Series. Either (i) the full text of these terms and conditions together with the
relevant provisions of the Pricing Supplement or (ii) these terms and conditions
as so completed, amended, supplemented or varied (and subject to simplification
by the deletion of non-applicable provisions), shall be endorsed on such Notes.
All capitalised terms that are not defined in these Conditions will have the
meanings given to them in the relevant Pricing Supplement. Those definitions
will be endorsed on the definitive Notes or Certificates, as the case may be.
References in the Conditions to "Notes" are to the Notes of one Series only, not
to all Notes that may be issued under the Programme, details of the relevant
Series being shown on the face of the relevant Notes and in the relevant Pricing
Supplement:-
The Notes are constituted by a Trust Deed (the "Trust Deed") dated
10th January, 2002 made between (1) the Issuer and (2) British and Malayan
Trustees Limited (the "Trustee", which expression shall wherever the context so
admits include such company and all other persons for the time being the trustee
or trustees of the Trust Deed), as trustee for the Noteholders (as defined
below), and (where applicable) the Notes are issued with the benefit of a deed
of covenant (the "Deed of Covenant") dated 10th January, 2002, relating to the
Notes executed by the Issuer. The Issuer has entered into an Agency Agreement
(the "Agency Agreement") dated 10th January, 2002 made between (1) the Issuer,
(2) Citicorp Investment Bank (Singapore) Limited, as issuing and paying agent
(in such capacity, the "Issuing and Paying Agent") and agent bank (in such
capacity, the "Agent Bank"), and (3) the Trustee, as trustee. The Noteholders
and the holders of the coupons (the "Coupons") appertaining to the
interest-bearing Notes (the "Couponholders") are bound by and are deemed to have
notice of all of the provisions of the Trust Deed, the Agency Agreement and the
Deed of Covenant.
Copies of the Trust Deed, the Agency Agreement and the Deed of
Covenant are available for inspection at the principal office of the Trustee for
the time being and at the specified office of the Issuing and Paying Agent for
the time being.
1. FORM, DENOMINATION AND TITLE
(a) Form and Denomination
(i) The Notes of the Series of which this Note forms part (in these
Conditions, the "Notes") are issued in bearer form in each case in the
Denomination Amount shown hereon.
41
(ii) This Note is a Fixed Rate Note, a Floating Rate Note, a Variable Rate
Note or a Hybrid Note (depending upon the Interest Basis shown on its face).
(iii) Notes are serially numbered and issued with Coupons attached, save in
the case of Notes that do not bear interest in which case references to interest
(other than in relation to default interest referred to in Condition 6(f)) in
these Conditions are not applicable.
(b) Title
(i) Title to the Notes and the Coupons appertaining thereto shall pass by
delivery.
(ii) Except as ordered by a court of competent jurisdiction or as required
by law, the holder of any Note or Coupon shall be deemed to be and may be
treated as the absolute owner of such Note or of such Coupon, as the case may
be, for the purpose of receiving payment thereof or on account thereof and for
all other purposes, whether or not such Note or Coupon shall be overdue and
notwithstanding any notice of ownership, theft or loss thereof or any writing
thereon made by anyone, and no person shall be liable for so treating the
holder.
(iii) For so long as any of the Notes is represented by a Global Note and
such Global Note is held by The Central Depository (Pte) Limited (the
"Depository"), each person who is for the time being shown in the records of the
Depository as the holder of a particular principal amount of such Notes (in
which regard any certificate or other document issued by the Depository as to
the principal amount of such Notes standing to the account of any person shall
be conclusive and binding for all purposes save in the case of manifest error)
shall be treated by the Issuer, the Issuing and Paying Agent, the Agent Bank,
all other agents of the Issuer and the Trustee as the holder of such principal
amount of Notes other than with respect to the payment of principal, interest
and any other amounts in respect of the Notes, for which purpose the bearer of
the Global Note shall be treated by the Issuer, the Issuing and Paying Agent,
the Agent Bank, all other agents of the Issuer and the Trustee as the holder of
such Notes in accordance with and subject to the terms of the Global Note (and
the expressions "Noteholder" and "holder of Notes" and related expressions shall
be construed accordingly). Notes which are represented by the Global Note will
be transferable only in accordance with the rules and procedures for the time
being of the Depository.
(iv) In these Conditions, "Global Note" means the relevant Temporary Global
Note representing each Series or the relevant Permanent Global Note representing
each Series, "Noteholder" means the bearer of any Definitive Note and "holder"
(in relation to a Definitive Note or Coupon) means the bearer of any Definitive
Note or Coupon, "Series" means (a) (in relation to Notes other than Variable
Rate Notes) a Tranche, together with any further Tranche or Tranches, which are
(i) expressed to be consolidated and forming a single series and (ii) identical
in all respects (including as to listing) except for their respective issue
dates, issue prices and/or dates of the first payment of interest and (b) (in
relation to Variable Rate Notes) Notes which are identical in all respects
(including as to listing) except for their respective issue prices and rates of
interest and "Tranche" means Notes which are identical in all respects
(including as to listing).
42
(v) Words and expressions defined in the Trust Deed or used in the
applicable Pricing Supplement (as defined in the Trust Deed) shall have the same
meanings where used in these Conditions unless the context otherwise requires or
unless otherwise stated and provided that, in the event of inconsistency between
the Trust Deed and the applicable Pricing Supplement, the applicable Pricing
Supplement will prevail.
2. STATUS
The Notes and Coupons of all Series constitute direct, unconditional
and unsecured obligations of the Issuer and shall at all times rank pari passu,
without any preference or priority among themselves, and pari passu with all
other present and future unsecured obligations (other than subordinated
obligations and priorities created by law or the Trust Deed) of the Issuer from
time to time outstanding.
3. NEGATIVE PLEDGE
In the Trust Deed, the Issuer has covenanted that, so long as any of
the Notes remains outstanding (as defined in the Trust Deed), the Issuer will
not, and will ensure that none of its Principal Subsidiaries will, create or
have outstanding any mortgage, charge, pledge or other security interest over
the whole or any part of its undertakings, assets, property or revenues, present
or future, where such mortgage, charge, pledge or other security interest is
given, or is intended to be given, to secure the indebtedness of, or guaranteed
by, the Issuer or any of its Principal Subsidiaries unless such mortgage,
charge, pledge or other security interest is forthwith extended equally and
rateably to the indebtedness of the Issuer in respect of the Notes, except for:-
(a) liens arising solely by operation of law (or by an agreement
evidencing the same) in the ordinary course of its business in
respect of indebtedness which either (i) has been due for less
than 14 days or (ii) is being contested in good faith and by
appropriate means; and
(b) any security created or to be created with the prior consent of
the Trustee.
4. (I) INTEREST ON FIXED RATE NOTES
(a) Interest Rate and Accrual
Each Fixed Rate Note bears interest on its Calculation Amount (as
defined in Condition 4(II)(h)) from the Interest Commencement Date in respect
thereof and as shown on the face of such Note at the rate per annum (expressed
as a percentage) equal to the Interest Rate shown on the face of such Note
payable in arrear on each Reference Date or Reference Dates shown on the face of
such Note in each year and on the Maturity Date shown on the face of such Note
if that date does not fall on a Reference Date.
The first payment of interest will be made on the Reference Date next
following the Interest Commencement Date (and if the Interest Commencement Date
is not a Reference Date, will amount to the Initial Broken Amount shown on the
face of such
43
Note), unless the Maturity Date falls before the date on which the first payment
of interest would otherwise be due. If the Maturity Date is not a Reference
Date, interest from the preceding Reference Date (or from the Interest
Commencement Date, as the case may be) to the Maturity Date will amount to the
Final Broken Amount shown on the face of the Note.
Interest will cease to accrue on each Fixed Rate Note from the due
date for redemption thereof unless, upon due presentation and subject to the
provisions of the Trust Deed, payment of principal is improperly withheld or
refused, in which event interest at such rate will continue to accrue (as well
after as before judgment) at the rate and in the manner provided in this
Condition 4(I) to the Relevant Date (as defined in Condition 7).
(b) Calculations
In the case of a Fixed Rate Note, interest in respect of a period of
less than one year will be calculated on the Fixed Rate Day Basis shown on the
face of such Note.
(II) INTEREST ON FLOATING RATE NOTES OR VARIABLE RATE NOTES
(a) Interest Payment Dates
Each Floating Rate Note or Variable Rate Note bears interest on its
Calculation Amount from the Interest Commencement Date in respect thereof and as
shown on the face of such Note, and such interest will be payable in arrear on
each date ("Interest Payment Date") which (save as mentioned in these
Conditions) falls the number of months specified as the Interest Period on the
face of the Note (the "Specified Number of Months") after the preceding Interest
Payment Date or, in the case of the first Interest Payment Date, after the
Interest Commencement Date (and which corresponds numerically with such
preceding Interest Payment Date or the Interest Commencement Date, as the case
may be), provided that the Agreed Yield (as defined in Condition 4(II)(c)) in
respect of any Variable Rate Note for any Interest Period (as defined below)
relating to that Variable Rate Note shall be payable on the first day of that
Interest Period. If any Interest Payment Date would otherwise fall on a day
which is not a business day (as defined below), it shall be postponed to the
next day which is a business day unless it would thereby fall into the next
calendar month. In any such case as aforesaid or if there is no date in the
relevant month which corresponds numerically with the preceding Interest Payment
Date or, as the case may be, the Interest Commencement Date (i) the Interest
Payment Date shall be brought forward to the immediately preceding business day
and (ii) each subsequent Interest Payment Date shall be the last business day of
the month which is the last of the Specified Number of Months after the month in
which the preceding Interest Payment Date or, as the case may be, the Interest
Commencement Date shall have fallen.
The period beginning on the Interest Commencement Date and ending on
the first Interest Payment Date and each successive period beginning on an
Interest Payment Date and ending on the next succeeding Interest Payment Date is
herein called an "Interest Period".
Interest will cease to accrue on each Floating Rate Note or Variable
Rate Note from the due date for redemption thereof unless, upon due presentation
and subject to the provisions of the Trust Deed, payment of principal is
improperly withheld or refused, in
44
which event interest will continue to accrue (as well after as before judgment)
at the rate and in the manner provided in this Condition 4(II) to the Relevant
Date.
(b) Rate of Interest - Floating Rate Notes
(i) Each Floating Rate Note bears interest at a floating rate determined
by reference to a benchmark as stated on the face of such Floating Rate Note,
being (in the case of Notes which are denominated in Singapore dollars) SIBOR
(in which case such Note will be a SIBOR Note) or Swap Rate (in which case such
Note will be a Swap Rate Note) or in any case (or in the case of Notes which are
denominated in a currency other than Singapore dollars) such other benchmark as
is set out on the face of such Note.
Such floating rate may be adjusted by adding or subtracting the Spread
(if any) stated on the face of such Note. The "Spread" is the percentage rate
per annum specified on the face of such Note as being applicable to the rate of
interest for such Note. The rate of interest so calculated shall be subject to
paragraph (d) below.
The rate of interest payable in respect of a Floating Rate Note from
time to time is referred to in these Conditions as the "Rate of Interest".
(ii) The Rate of Interest payable from time to time in respect of each
Floating Rate Note will be determined by the Agent Bank on the basis of the
following provisions:-
(1) in the case of Floating Rate Notes which are SIBOR Notes:-
(A) the Agent Bank will, at or about the Relevant Time on the
relevant Interest Determination Date in respect of each
Interest Period, determine the Rate of Interest for such
Interest Period which shall be the offered rate for deposits
in Singapore dollars for a period equal to the duration of
such Interest Period which appears on the Reuters Screen
SIBOS Page (or such other Screen Page as may be provided
hereon) and as adjusted by the Spread (if any);
(B) if no such rate appears on the Reuters Screen SIBOS Page (or
such other replacement page thereof), the Agent Bank will,
at or about the Relevant Time on such Interest Determination
Date, determine the Rate of Interest for such Interest
Period which shall be the rate which appears on Telerate
Page 7310 of the Dow Xxxxx Telerate Service (or such other
replacement page thereof), being the offered rate for
deposits in Singapore dollars for a period equal to the
duration of such Interest Period and as adjusted by the
Spread (if any);
(C) if no such rate appears on Telerate Page 7310 (or such other
replacement page thereof or if no rate appears on such other
Screen Page as may be provided hereon) or if Telerate Page
7310 (or such other replacement page thereof or such other
Screen Page as may be provided hereon) is unavailable for
45
any reason, the Agent Bank will request the principal
Singapore offices of each of the Reference Banks to provide
the Agent Bank with the rate at which deposits in Singapore
dollars are offered by it at approximately the Relevant Time
on the Interest Determination Date to prime banks in the
Singapore interbank market for a period equivalent to the
duration of such Interest Period commencing on such Interest
Payment Date in an amount comparable to the aggregate
principal amount of the relevant Floating Rate Notes. The
Rate of Interest for such Interest Period shall be the
arithmetic mean (rounded up, if necessary, to the nearest
1/16 per cent.) of such offered quotations and as adjusted
by the Spread (if any), as determined by the Agent Bank;
(D) if on any Interest Determination Date two but not all the
Reference Banks provide the Agent Bank with such quotations,
the Rate of Interest for the relevant Interest Period shall
be determined in accordance with (C) above on the basis of
the quotations of those Reference Banks providing such
quotations; and
(E) if on any Interest Determination Date one only or none of
the Reference Banks provides the Agent Bank with such
quotations, the Rate of Interest for the relevant Interest
Period shall be the rate per annum which the Agent Bank
determines to be the arithmetic mean (rounded up, if
necessary, to the nearest 1/16 per cent.) of the rates
quoted by the Reference Banks or those of them (being at
least two in number) to the Agent Bank at or about the
Relevant Time on such Interest Determination Date as being
their cost (including the cost occasioned by or attributable
to complying with reserves, liquidity, deposit or other
requirements imposed on them by any relevant authority or
authorities) of funding, for the relevant Interest Period,
an amount equal to the aggregate principal amount of the
relevant Floating Rate Notes for such Interest Period by
whatever means they determine to be most appropriate and as
adjusted by the Spread (if any) or if on such Interest
Determination Date one only or none of the Reference Banks
provides the Agent Bank with such quotation, the rate per
annum which the Agent Bank determines to be the arithmetic
mean (rounded up, if necessary, to the nearest 1/16 per
cent.) of the prime lending rates for Singapore dollars
quoted by the Reference Banks at or about the Relevant Time
on such Interest Determination Date and as adjusted by the
Spread (if any);
(2) in the case of Floating Rate Notes which are Swap Rate Notes:-
(A) the Agent Bank will, at or about the Relevant Time on the
relevant Interest Determination Date in respect of each
46
Interest Period, determine the Rate of Interest for such
Interest Period which shall be the Average Swap Rate for
such Interest Period (determined by the Agent Bank as being
the rate which appears under the caption "ASSOCIATION OF
BANKS IN SINGAPORE SIBOR AND SWAP OFFER RATE FIXING AT 11
A.M. SINGAPORE TIME" and the row headed "SGD" on Telerate
Page 50157 of the Dow Xxxxx Telerate Service (or such other
page as may replace Telerate Page 50157 for the purpose of
displaying the swap rates of leading reference banks) at or
about the Relevant Time on such Interest Determination Date
and for a period equal to the duration of such Interest
Period) and as adjusted by the Spread (if any);
(B) if on any Interest Determination Date, no such rate is
quoted on Telerate Page 50157 (or such other replacement
page as aforesaid) or Telerate Page 50157 (or such other
replacement page as aforesaid) is unavailable for any
reason, the Agent Bank will determine the Average Swap Rate
(which shall be rounded up, if necessary, to the nearest
1/16 per cent.) for such Interest Period in accordance with
the following formula:-
In the case of Premium:-
365 (Premium x 36500)
Average Swap Rate = --- x SIBOR + -----------------
360 (T x Spot Rate)
(SIBOR x Premium) 365
+ ----------------- x ---
(Spot Rate) 360
In the case of Discount:-
365 (Discount x 36500)
Average Swap Rate = --- x SIBOR - ------------------
360 (T x Spot Rate)
(SIBOR x Discount) x 365
- ------------------ ---
(Spot Rate) 360
where:-
SIBOR = the rate which appears under the caption
"SINGAPORE INTERBANK OFFER RATES (US$)"
and the column headed "Fixing" on
Telerate Page 7311 of the Dow Xxxxx
Telerate Service (or such other page as
may replace Telerate Page 7311 for the
purpose of displaying Singapore interbank
United States dollar offered rates of
leading reference banks) at or
47
about the Relevant Time on the relevant
Interest Determination Date for a period
equal to the duration of the Interest
Period concerned;
Spot Rate = the rate (determined by the Agent Bank)
to be the arithmetic mean (rounded up, if
necessary, to the nearest four decimal
places) of the rates quoted by the
Reference Banks and which appear under
the caption "SINGAPORE BANKS RATES AT 11
A.M. SGP TIME" and the column headed
"Spot" on Telerate Page 50162 of the Dow
Xxxxx Telerate Service (or such other
page as may replace Telerate Page 50162
for the purpose of displaying the spot
rates and swap points of leading
reference banks) at or about the Relevant
Time on the relevant Interest
Determination Date for a period equal to
the duration of the Interest Period
concerned;
Premium or
Discount = the rate (determined by the Agent Bank)
to be the arithmetic mean (rounded up, if
necessary, to the nearest four decimal
places) of the rates quoted by the
Reference Banks for a period equal to the
duration of the Interest Period concerned
which appear under the caption "SINGAPORE
BANKS RATES AT 11 A.M. SGP TIME" on
Telerate Page 50162 of the Dow Xxxxx
Telerate Service (or such other page as
may replace Telerate Page 50162 for the
purpose of displaying the spot rates and
swap points of leading reference banks)
at or about the Relevant Time on the
relevant Interest Determination Date for
a period equal to the duration of the
Interest Period concerned; and
T = the number of days in the Interest Period
concerned.
48
The Rate of Interest for such Interest Period shall be the
Average Swap Rate (as determined by the Agent Bank) and as
adjusted by the Spread (if any);
(C) if on any Interest Determination Date any one of the
components for the purposes of calculating the Average Swap
Rate under (B) above is not quoted on the relevant Telerate
Page (or such other replacement page as aforesaid) or the
relevant Telerate Page (or such other replacement page as
aforesaid) is unavailable for any reason, the Agent Bank
will request the principal Singapore offices of the
Reference Banks to provide the Agent Bank with quotations of
their Swap Rates for the Interest Period concerned at or
about the Relevant Time on that Interest Determination Date
and the Rate of Interest for such Interest Period shall be
the Average Swap Rate for such Interest Period (which shall
be the rate per annum equal to the arithmetic mean (rounded
up, if necessary, to the nearest 1/16 per cent.) of the Swap
Rates quoted by the Reference Banks to the Agent Bank) and
as adjusted by the Spread (if any). The Swap Rate of a
Reference Bank means the rate at which that Reference Bank
can generate Singapore dollars for the Interest Period
concerned in the Singapore interbank market at or about the
Relevant Time on the relevant Interest Determination Date
and shall be determined as follows:-
In the case of Premium:-
365 (Premium x 36500)
Swap Rate = --- x SIBOR + -----------------
360 (T x Spot Rate)
(SIBOR x Premium) 365
+ ----------------- x ---
(Spot Rate) 360
In the case of Discount:-
Swap Rate = 365 (Discount x 36500)
--- x SIBOR - ------------------
360 (T x Spot Rate)
(SIBOR x Discount) 365
- ------------------ x ---
(Spot Rate) 360
where:-
SIBOR = the rate per annum at which United
States dollar deposits for a period
equal to the duration of the Interest
Period concerned are being offered by
that Reference Bank to prime banks in
the Singapore interbank
49
market at or about the Relevant Time on
the relevant Interest Determination
Date;
Spot Rate = the rate at which that Reference Bank
sells United States dollars spot in
exchange for Singapore dollars in the
Singapore interbank market at or about
the Relevant Time on the relevant
Interest Determination Date;
Premium = the premium that would have been paid by
that Reference Bank in buying United
States dollars forward in exchange for
Singapore dollars on the last day of the
Interest Period concerned in the
Singapore interbank market;
Discount = the discount that would have been
received by that Reference Bank in
buying United States dollars forward in
exchange for Singapore dollars on the
last day of the Interest Period
concerned in the Singapore interbank
market; and
T = the number of days in the Interest
Period concerned; and
(D) if on any Interest Determination Date one only or none of
the Reference Banks provides the Agent Bank with quotations
of their Swap Rate(s), the Average Swap Rate shall be
determined by the Agent Bank to be the rate per annum equal
to the arithmetic mean (rounded up, if necessary, to the
nearest 1/16 per cent.) of the rates quoted by the Reference
Banks or those of them (being at least two in number) to the
Agent Bank at or about the Relevant Time on such Interest
Determination Date as being their cost (including the cost
occasioned by or attributable to complying with reserves,
liquidity, deposit or other requirements imposed on them by
any relevant authority or authorities) of funding, for the
relevant Interest Period, an amount equal to the aggregate
principal amount of the relevant Floating Rate Notes for
such Interest Period by whatever means they determine to be
most appropriate and the Rate of Interest for the relevant
Interest Period shall be the Average Swap Rate (as so
determined by the Agent Bank) and as adjusted by the Spread
(if any), or if on such Interest Determination Date one only
or none of the Reference Banks provides the Agent Bank with
such
50
quotation, the Rate of Interest for the relevant Interest
Period shall be the rate per annum equal to the arithmetic
mean (rounded up, if necessary, to the nearest 1/16 per
cent.) of the prime lending rates for Singapore dollars
quoted by the Reference Banks at or about the Relevant Time
on such Interest Determination Date and as adjusted by the
Spread (if any); and
(3) in the case of Floating Rate Notes which are not SIBOR Notes or
Swap Rate Notes or which are denominated in a currency other than
Singapore dollars, the Agent Bank will determine the Rate of
Interest in respect of any Interest Period at or about the
Relevant Time on the Interest Determination Date in respect of
such Interest Period as follows:-
(A) if the Primary Source for the Floating Rate is a Screen Page
(as defined below), subject as provided below, the Rate of
Interest in respect of such Interest Period shall be:-
(aa) the Relevant Rate (as defined below) (where such
Relevant Rate on such Screen Page is a composite
quotation or is customarily supplied by one entity); or
(bb) the arithmetic mean of the Relevant Rates of the
persons whose Relevant Rates appear on that Screen
Page, in each case appearing on such Screen Page at the
Relevant Time on the Interest Determination Date,
and as adjusted by the Spread (if any);
(B) if the Primary Source for the Floating Rate is Reference
Banks or if paragraph (b)(ii)(3)(A)(aa) applies and no
Relevant Rate appears on the Screen Page at the Relevant
Time on the Interest Determination Date or if paragraph
(b)(ii)(3)(A)(bb) applies and fewer than two Relevant Rates
appear on the Screen Page at the Relevant Time on the
Interest Determination Date, subject as provided below, the
Rate of Interest shall be the rate per annum which the Agent
Bank determines to be the arithmetic mean (rounded up, if
necessary, to the nearest 1/16 per cent.) of the Relevant
Rates that each of the Reference Banks is quoting to leading
banks in the Relevant Financial Centre (as defined below) at
the Relevant Time on the Interest Determination Date and as
adjusted by the Spread (if any); and
(C) if paragraph (b)(ii)(3)(B) applies and the Agent Bank
determines that fewer than two Reference Banks are so
quoting Relevant Rates, the Rate of Interest shall be the
Rate
51
of Interest determined on the previous Interest
Determination Date.
(iii) On the last day of each Interest Period, the Issuer will pay interest
on each Floating Rate Note to which such Interest Period relates at the Rate of
Interest for such Interest Period.
(c) Rate of Interest - Variable Rate Notes
(i) Each Variable Rate Note bears interest at a variable rate determined
in accordance with the provisions of this paragraph (c). The interest payable in
respect of a Variable Rate Note on the first day of an Interest Period relating
to that Variable Rate Note is referred to in these Conditions as the "Agreed
Yield" and the rate of interest payable in respect of a Variable Rate Note on
the last day of an Interest Period relating to that Variable Rate Note is
referred to in these Conditions as the "Rate of Interest".
(ii) The Agreed Yield or, as the case may be, the Rate of Interest payable
from time to time in respect of each Variable Rate Note for each Interest Period
shall, subject as referred to in paragraph (c)(iv) below, be determined as
follows:-
(1) not earlier than 9 a.m. (Singapore time) on the ninth business
day nor later than 3 p.m. (Singapore time) on the third business
day prior to the commencement of each Interest Period, the Issuer
and the Relevant Dealer (as defined below) shall endeavour to
agree on the following:-
(A) whether interest in respect of such Variable Rate Note is to
be paid on the first day or the last day of such Interest
Period;
(B) if interest in respect of such Variable Rate Note is agreed
between the Issuer and the Relevant Dealer to be paid on the
first day of such Interest Period, an Agreed Yield in
respect of such Variable Rate Note for such Interest Period
(and, in the event of the Issuer and the Relevant Dealer so
agreeing on such Agreed Yield, the Interest Amount (as
defined below) for such Variable Rate Note for such Interest
Period shall be zero); and
(C) if interest in respect of such Variable Rate Note is agreed
between the Issuer and the Relevant Dealer to be paid on the
last day of such Interest Period, a Rate of Interest in
respect of such Variable Rate Note for such Interest Period
(an "Agreed Rate") and, in the event of the Issuer and the
Relevant Dealer so agreeing on an Agreed Rate, such Agreed
Rate shall be the Rate of Interest for such Variable Rate
Note for such Interest Period; and
(2) if the Issuer and the Relevant Dealer shall not have agreed
either an Agreed Yield or an Agreed Rate in respect of such
Variable Rate Note for such Interest Period by 3 p.m. (Singapore
time) on the third
52
business day prior to the commencement of such Interest Period,
or if there shall be no Relevant Dealer during the period for
agreement referred to in (1) above, the Rate of Interest for such
Variable Rate Note for such Interest Period shall automatically
be the rate per annum equal to the Fall Back Rate (as defined
below) for such Interest Period.
(iii) The Issuer has undertaken to the Issuing and Paying Agent and the
Agent Bank that it will as soon as possible after the Agreed Yield or, as the
case may be, the Agreed Rate in respect of any Variable Rate Note is determined
but not later than 10.30 a.m. (Singapore time) on the next following business
day:-
(1) notify the Issuing and Paying Agent and the Agent Bank of the
Agreed Yield or, as the case may be, the Agreed Rate for such
Variable Rate Note for such Interest Period; and
(2) cause such Agreed Yield or, as the case may be, Agreed Rate for
such Variable Rate Note to be notified by the Issuing and Paying
Agent to the relevant Noteholder at its request.
(iv) For the purposes of sub-paragraph (ii) above, the Rate of Interest for
each Interest Period for which there is neither an Agreed Yield nor Agreed Rate
in respect of any Variable Rate Note or no Relevant Dealer in respect of the
Variable Rate Note(s) shall be the rate (the "Fall Back Rate") determined by
reference to a benchmark as stated on the face of such Variable Rate Note(s),
being (in the case of Variable Rate Notes which are denominated in Singapore
dollars) SIBOR (in which case such Variable Rate Note(s) will be SIBOR Note(s))
or Swap Rate (in which case such Variable Rate Note(s) will be Swap Rate
Note(s)) or (in any other case or in the case of Variable Rate Notes which are
denominated in a currency other than Singapore dollars) such other benchmark as
is set out on the face of such Variable Rate Note(s).
Such rate may be adjusted by adding or subtracting the Spread (if any)
stated on the face of such Variable Rate Note. The "Spread" is the percentage
rate per annum specified on the face of such Variable Rate Note as being
applicable to the rate of interest for such Variable Rate Note. The rate of
interest so calculated shall be subject to paragraph (d) below.
The Fall Back Rate payable from time to time in respect of each
Variable Rate Note will be determined by the Agent Bank in accordance with the
provisions of Condition 4(II)(b)(ii) above (mutatis mutandis) and references
therein to "Rate of Interest" shall mean "Fall Back Rate".
(v) If interest is payable in respect of a Variable Rate Note on the first
day of an Interest Period relating to such Variable Rate Note, the Issuer will
pay the Agreed Yield applicable to such Variable Rate Note for such Interest
Period on the first day of such Interest Period. If interest is payable in
respect of a Variable Rate Note on the last day of an Interest Period relating
to such Variable Rate Note, the Issuer will pay the Interest Amount for such
Variable Rate Note for such Interest Period on the last day of such Interest
Period.
53
(d) Determination of Rate of Interest and Calculation of Interest Amounts
and Redemption Amounts
The Agent Bank will, as soon as practicable after the Relevant Time on
each Interest Determination Date or such other time on such date as the Agent
Bank may be required to calculate any Redemption Amount in respect of any Notes,
determine the Rate of Interest and calculate the amount of interest payable (the
"Interest Amounts") in respect of each Calculation Amount of the relevant
Floating Rate Notes or Variable Rate Notes for the relevant Interest Period or
calculate the Redemption Amount in respect of such Notes. The Interest Amounts
shall be calculated by applying the Rate of Interest to the Calculation Amount,
multiplying such product by the actual number of days in the Interest Period
concerned (including the first, but excluding the last, day of such Interest
Period), divided by the FRN Day Basis or, as the case may be, VRN Day Basis
shown on the face of such Note and rounding the resultant figure to the nearest
cent. The determination of the Rate of Interest, the Interest Amounts and the
Redemption Amount by the Agent Bank shall (in the absence of manifest error) be
final and binding upon all parties.
(e) Notification of Rate of Interest and Interest Amounts
The Agent Bank will cause the Rate of Interest and the Interest
Amounts for each Interest Period and the relevant Interest Payment Date and, if
required to be calculated, the Redemption Amount to be notified to the Issuing
and Paying Agent and the Issuer and (in the case of Floating Rate Notes) to be
notified to Noteholders in accordance with Condition 15 as soon as possible
after their determination but in no event later than the second business day
thereafter. The Interest Amounts and the Interest Payment Date so notified may
subsequently be amended (or appropriate alternative arrangements made by way of
adjustment) without notice in the event of an extension or shortening of the
Interest Period. If the Floating Rate Notes or, as the case may be, Variable
Rate Notes become due and payable under Condition 9, the Rate of Interest and
Interest Amounts payable in respect of the Floating Rate Notes or, as the case
may be, Variable Rate Notes shall nevertheless continue to be calculated as
previously in accordance with this Condition but no publication of the Rate of
Interest and Interest Amounts need to be made unless the Trustee requires
otherwise.
(f) Determination of Rate of Interest by the Trustee
The Trustee shall (if the Agent Bank does not at any material time
determine the Rate of Interest) determine or procure the determination of such
Rate of Interest in accordance with the provisions of this Condition 4. In doing
so, the Trustee shall apply the foregoing provisions of this Condition, with any
necessary consequential amendments, to the extent that, in its opinion, it can
do so, and, in all other respects, it shall do so in such manner as it shall
deem fair and reasonable in all the circumstances.
(g) Agent Bank and Reference Banks
The Issuer will procure that, so long as any Floating Rate Note or
Variable Rate Note remains outstanding, there shall at all times be three
Reference Banks and an Agent Bank. If any Reference Bank (acting through its
relevant office) is unable or unwilling to continue to act as a Reference Bank
or the Agent Bank is unable or unwilling to act as such or if the Agent Bank
fails duly to establish the Rate of Interest for any Interest Period or
54
to calculate the Interest Amounts or the Redemption Amount, the Issuer will
appoint the Singapore office of a leading bank or merchant bank engaged in the
Singapore interbank market to act as such in its place. The Agent Bank may not
resign its duties without a successor having been appointed as aforesaid.
(h) Definitions
As used in these Conditions:-
"Benchmark" means the rate specified as such in the applicable Pricing
Supplement;
"business day" means:-
(i) (in the case of Notes denominated in Singapore dollars) a day
(other than a Saturday or Sunday) on which commercial banks are
open for business in Singapore; and
(ii) (in the case of Notes denominated in a currency other than
Singapore dollars), a day (other than a Saturday or Sunday) on
which commercial banks and foreign exchange markets are open for
business in Singapore and the principal financial centre for that
currency;
"Calculation Amount" means the amount specified as such on the face of
any Note, or if no such amount is so specified, the Denomination
Amount of such Note as shown on the face thereof;
"Interest Commencement Date" means the Issue Date or such other date
as may be specified as the Interest Commencement Date on the face of
such Note;
"Interest Determination Date" means, in respect of any Interest
Period, that number of business days prior thereto as is set out in
the applicable Pricing Supplement or on the face of the relevant Note;
"Reference Banks" means the institutions specified as such hereon or,
if none, three major banks selected by the Agent Bank in the interbank
market that is most closely connected with the Benchmark;
"Relevant Currency" means the currency in which the Notes are
denominated;
"Relevant Dealer" means, in respect of any Variable Rate Note, the
Dealer party to the Programme Agreement referred to in the Agency
Agreement with whom the Issuer has concluded or is negotiating an
agreement for the issue of such Variable Rate Note pursuant to the
Programme Agreement;
"Relevant Financial Centre" means, in the case of interest to be
determined on an Interest Determination Date with respect to any
Floating Rate Note or
55
Variable Rate Note, the financial centre with which the relevant
Benchmark is most closely connected or, if none is so connected,
Singapore;
"Relevant Rate" means the Benchmark for a Calculation Amount of the
Relevant Currency for a period (if applicable or appropriate to the
Benchmark) equal to the relevant Interest Period;
"Relevant Time" means, with respect to any Interest Determination
Date, the local time in the Relevant Financial Centre at which it is
customary to determine bid and offered rates in respect of deposits in
the Relevant Currency in the interbank market in the Relevant
Financial Centre; and
"Screen Page" means such page, section, caption, column or other part
of a particular information service (including, but not limited to,
the Reuters Monitor Money Rates Service ("Reuters") and the Dow Xxxxx
Telerate Service ("Telerate")) as may be specified hereon for the
purpose of providing the Benchmark, or such other page, section,
caption, column or other part as may replace it on that information
service or on such other information service, in each case as may be
nominated by the person or organisation providing or sponsoring the
information appearing there for the purpose of displaying rates or
prices comparable to the Benchmark.
(III) INTEREST ON HYBRID NOTES
(a) Interest Rate and Accrual
Each Hybrid Note bears interest on its Calculation Amount from the
Interest Commencement Date in respect thereof and as shown on the face of such
Note.
(b) Fixed Rate Period
(i) In respect of the Fixed Rate Period shown on the face of such Note,
each Hybrid Note bears interest on its Calculation Amount from the first day of
the Fixed Rate Period at the rate per annum (expressed as a percentage) equal to
the Interest Rate shown on the face of such Note payable in arrear on each
Reference Date or Reference Dates shown on the face of the Note in each year and
on the last day of the Fixed Rate Period if that date does not fall on a
Reference Date.
(ii) The first payment of interest will be made on the Reference Date next
following the first day of the Fixed Rate Period (and if the first day of the
Fixed Rate Period is not a Reference Date, will amount to the Initial Broken
Amount shown on the face of such Note), unless the last day of the Fixed Rate
Period falls before the date on which the first payment of interest would
otherwise be due. If the last day of the Fixed Rate Period is not a Reference
Date, interest from the preceding Reference Date (or from the first day of the
Fixed Rate Period, as the case may be) to the last day of the Fixed Rate Period
will amount to the Final Broken Amount shown on the face of the Note.
(iii) Where the due date of redemption of any Hybrid Note falls within the
Fixed Rate Period, interest will cease to accrue on the Note from the due date
for redemption thereof unless, upon due presentation and subject to the
provisions of the Trust Deed,
56
payment of principal (or Redemption Amount, as the case may be) is improperly
withheld or refused, in which event interest at such rate will continue to
accrue (as well after as before judgment) at the rate and in the manner provided
in this Condition 4(III) to the Relevant Date.
(iv) In the case of a Hybrid Note, interest in respect of a period of less
than one year will be calculated on the Fixed Rate Day Basis shown on the face
of the Note during the Fixed Rate Period.
(c) Floating Rate Period
(i) In respect of the Floating Rate Period shown on the face of such Note,
each Hybrid Note bears interest on its Calculation Amount from the first day of
the Floating Rate Period, and such interest will be payable in arrear on each
date ("Interest Payment Date") which (save as mentioned in these Conditions)
falls the number of months specified as the Interest Period on the face of the
Note (the "Specified Number of Months") after the preceding Interest Payment
Date or, in the case of the first Interest Payment Date, after the first day of
the Floating Rate Period (and which corresponds numerically with such preceding
Interest Payment Date or the first day of the Floating Rate Period, as the case
may be). If any Interest Payment Date would otherwise fall on a day which is not
a business day, it shall be postponed to the next day which is a business day
unless it would thereby fall into the next calendar month. In any such case as
aforesaid or if there is no date in the relevant month which corresponds
numerically with the preceding Interest Payment Date or, as the case may be, the
first day of the Floating Rate Period (i) the Interest Payment Date shall be
brought forward to the immediately preceding business day and (ii) each
subsequent Interest Payment Date shall be the last business day of the month
which is the last of the Specified Number of Months after the month in which the
preceding Interest Payment Date or, as the case may be, the first day of the
Floating Rate Period shall have fallen.
(ii) The period beginning on the first day of the Floating Rate Period and
ending on the first Interest Payment Date and each successive period beginning
on an Interest Payment Date and ending on the next succeeding Interest Payment
Date is herein called an "Interest Period".
(iii) Where the due date of redemption of any Hybrid Note falls within the
Floating Rate Period, interest will cease to accrue on the Note from the due
date for redemption thereof unless, upon due presentation thereof, payment of
principal (or Redemption Amount, as the case may be) is improperly withheld or
refused, in which event interest will continue to accrue (as well after as
before judgment) at the rate and in the manner provided in this Condition 4(III)
and the Agency Agreement to the Relevant Date.
(iv) The provisions of Condition 4(II)(b) shall apply to each Hybrid Note
during the Floating Rate Period as though references therein to Floating Rate
Notes are references to Hybrid Notes.
5. REDEMPTION AND PURCHASE
(a) Final Redemption
57
Unless previously redeemed or purchased and cancelled as provided
below, this Note will be redeemed at its Redemption Amount on the Maturity Date
shown on its face (if this Note is shown on its face to be a Fixed Rate Note or
Hybrid Note) or on the Interest Payment Date falling in the Redemption Month
shown on its face (if this Note is shown on its face to be a Floating Rate Note,
Variable Rate Note or Hybrid Note).
(b) Purchase at the Option of Issuer
If so provided hereon, the Issuer shall have the option to purchase
all or any of the Fixed Rate Notes, Floating Rate Notes, Variable Rate Notes or
Hybrid Notes at their Redemption Amount on any date on which interest is due to
be paid on such Notes and the Noteholders shall be bound to sell such Notes to
the Issuer accordingly. To exercise such option, the Issuer shall give
irrevocable notice to the Noteholders within the Issuer's Purchase Option Period
shown on the face hereof. Such Notes may be held, resold or surrendered to the
Issuing and Paying Agent for cancellation. The Notes so purchased, while held by
or on behalf of the Issuer, shall not entitle the holder to vote at any meetings
of the Noteholders and shall not be deemed to be outstanding for the purposes of
calculating quorums at meetings of the Noteholders or for the purposes of
Conditions 9, 10 and 11.
In the case of a purchase of some only of the Notes, the notice to
Noteholders shall also contain the certificate numbers of the Notes to be
purchased, which shall have been drawn by or on behalf of the Issuer in such
place and in such manner as may be agreed between the Issuer and the Trustee,
subject to compliance with any applicable laws. So long as the Notes are listed
on the Singapore Exchange Securities Trading Limited, the Issuer shall comply
with the rules of such Stock Exchange in relation to the publication of any
purchase of Notes.
(c) Purchase at the Option of Noteholders
(i) Each Noteholder shall have the option to have all or any of his
Variable Rate Notes purchased by the Issuer at their Redemption Amount on any
Interest Payment Date and the Issuer will purchase such Variable Rate Notes
accordingly. To exercise such option, a Noteholder shall deposit any Variable
Rate Notes to be purchased with the Issuing and Paying Agent at its specified
office together with all Coupons relating to such Variable Rate Notes which
mature after the date fixed for purchase, together with a duly completed option
exercise notice in the form obtainable from the Issuing and Paying Agent within
the Noteholders' VRN Purchase Option Period shown on the face hereof. Any
Variable Rate Notes so deposited may not be withdrawn (except as provided in the
Agency Agreement) without the prior consent of the Issuer. Such Variable Rate
Notes may be held, resold or surrendered to the Issuing and Paying Agent for
cancellation. The Variable Rate Notes so purchased, while held by or on behalf
of the Issuer, shall not entitle the holder to vote at any meetings of the
Noteholders and shall not be deemed to be outstanding for the purposes of
calculating quorums at meetings of the Noteholders or for the purposes of
Conditions 9, 10 and 11.
(ii) If so provided hereon, each Noteholder shall have the option to have
all or any of his Fixed Rate Notes, Floating Rate Notes or Hybrid Notes
purchased by the Issuer at their Redemption Amount on any date on which interest
is due to be paid on such Notes and the Issuer will purchase such Notes
accordingly. To exercise such option, a Noteholder
58
shall deposit any Notes to be purchased with the Issuing and Paying Agent at its
specified office together with all Coupons relating to such Notes which mature
after the date fixed for purchase, together with a duly completed option
exercise notice in the form obtainable from the Issuing and Paying Agent within
the Noteholders' Purchase Option Period shown on the face hereof. Any Notes so
deposited may not be withdrawn (except as provided in the Agency Agreement)
without the prior consent of the Issuer. Such Notes may be held, resold or
surrendered to the Issuing and Paying Agent for cancellation. The Notes so
purchased, while held by or on behalf of the Issuer, shall not entitle the
holder to vote at any meetings of the Noteholders and shall not be deemed to be
outstanding for the purposes of calculating quorums at meetings of the
Noteholders or for the purposes of Conditions 9, 10 and 11.
(d) Redemption at the Option of the Issuer
If so provided hereon, the Issuer may, on giving irrevocable notice to
the Noteholders falling within the Issuer's Redemption Option Period shown on
the face hereof, redeem all or, if so provided, some of the Notes at their
Redemption Amount or integral multiples thereof and on the date or dates so
provided. Any such redemption of Notes shall be at their Redemption Amount,
together with interest accrued to the date fixed for redemption.
All Notes in respect of which any such notice is given shall be
redeemed on the date specified in such notice in accordance with this Condition.
In the case of a partial redemption, the notice to Noteholders shall
also contain the certificate numbers of the Notes to be redeemed, which shall
have been drawn in such place and in such manner as may be fair and reasonable
in the circumstances, taking account of prevailing market practices, subject to
compliance with any applicable laws. So long as the Notes are listed on the
Singapore Exchange Securities Trading Limited, the Issuer shall, comply with the
rules of such Stock Exchange in relation to the publication of any redemption of
Notes.
(e) Redemption at the Option of Noteholders
(i) If so provided hereon, the Issuer shall, at the option of the holder
of any Note, redeem such Note on the date or dates so provided at its Redemption
Amount, together with interest accrued to the date fixed for redemption. To
exercise such option, the holder must deposit such Note (together with all
unmatured Coupons) with the Issuing and Paying Agent at its specified office,
together with a duly completed option exercise notice in the form obtainable
from the Issuing and Paying Agent within the Noteholders' Redemption Option
Period shown on the face hereof. Any Note so deposited may not be withdrawn
(except as provided in the Agency Agreement) without the prior consent of the
Issuer.
(ii) In the event that Singapore Technologies Pte Ltd ceases to hold
(either directly or indirectly through any one or more of its wholly-owned
subsidiaries) at least 51 per cent. of the issued ordinary share capital of the
Issuer for the time being, the Issuer will, at the option of the holder of any
Note, redeem such Note at its Redemption Amount (together with interest accrued
to the date fixed for redemption) on the date falling 45 days from the date of
the exercise by the holder of such option. The Issuer will give prompt notice to
the Noteholders of the occurrence of the event referred to in this Condition
5(e)(ii) in accordance with Condition 15. To exercise such option, a Noteholder
shall deposit any Notes to be
59
redeemed with the Issuing and Paying Agent at its specified office together with
all Coupons relating to such Notes which mature after the date fixed for
redemption, together with a duly completed option exercise notice in the form
obtainable from the Issuing and Paying Agent, no later than 30 days from the
date of the Issuer's notice to the Noteholders of the occurrence of such event
(or such longer period, not exceeding 45 days, as the Issuer may notify to the
Noteholders in such notice). Any Notes so deposited may not be withdrawn (except
as provided in the Agency Agreement).
(f) Redemption for Taxation Reasons
If so provided hereon, the Notes may be redeemed at the option of the
Issuer in whole, but not in part, on any Reference Date or Interest Payment Date
(as the case may be) or, if so specified hereon, at any time on giving not less
than 30 nor more than 60 days' notice to the Noteholders (which notice shall be
irrevocable), at their Redemption Amount (together with interest accrued to (but
excluding) the date fixed for redemption), if (i) the Issuer has or will become
obliged to pay additional amounts as provided or referred to in Condition 7, or
increase the payment of such additional amounts, as a result of any change in,
or amendment to, the laws (or any regulations, rulings or other administrative
pronouncements promulgated thereunder) of Singapore or any political subdivision
or any authority thereof or therein having power to tax, or any change in the
application or official interpretation of such laws, regulations, rulings or
other administrative pronouncements, which change or amendment is made public on
or after the Issue Date or any other date specified in the Pricing Supplement,
and (ii) such obligations cannot be avoided by the Issuer taking reasonable
measures available to it, provided that no such notice of redemption shall be
given earlier than 90 days prior to the earliest date on which the Issuer would
be obliged to pay such additional amounts were a payment in respect of the Notes
then due. Prior to the publication of any notice of redemption pursuant to this
paragraph, the Issuer shall deliver to the Issuing and Paying Agent a
certificate signed by a duly authorised officer of the Issuer stating that the
Issuer is entitled to effect such redemption and setting forth a statement of
facts showing that the conditions precedent to the right of the Issuer so to
redeem have occurred, and an opinion of independent legal advisers of recognised
standing to the effect that the Issuer has or is likely to become obliged to pay
such additional amounts as a result of such change or amendment.
(g) Purchases
The Issuer and any of its subsidiaries may at any time purchase Notes
at any price (provided that they are purchased together with all unmatured
Coupons relating to them) in the open market or otherwise, provided that in any
such case such purchase or purchases is in compliance with all relevant laws,
regulations and directives.
Notes purchased by the Issuer or any of its subsidiaries may be
surrendered by the purchaser through the Issuer to the Issuing and Paying Agent
for cancellation or may at the option of the Issuer or relevant subsidiary be
held or resold.
For the purposes of these Conditions, "directive" includes any present
or future directive, regulation, request, requirement, rule or credit restraint
programme of any relevant agency, authority, central bank department,
government, legislative, minister, ministry, official, public or statutory
corporation, self-regulating organisation, or stock exchange.
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(h) Cancellation
All Notes purchased by or on behalf of the Issuer or any of its
subsidiaries may be surrendered for cancellation by surrendering each such Note
together with all unmatured Coupons to the Issuing and Paying Agent at its
specified office and, if so surrendered, shall, together with all Notes redeemed
by the Issuer, be cancelled forthwith (together with all unmatured Coupons
attached thereto or surrendered therewith). Any Notes so surrendered for
cancellation may not be reissued or resold.
6. PAYMENTS
(a) Principal and Interest
Payments of principal and interest in respect of the Notes will,
subject as mentioned below, be made against presentation and surrender of the
relevant Notes or Coupons, as the case may be, at the specified office of the
Issuing and Paying Agent by a cheque drawn in the currency in which payment is
due on, or, at the option of the holders, by transfer to an account maintained
by the payee in that currency with, a bank in the principal financial centre for
that currency.
(b) Payments subject to law etc.
All payments are subject in all cases to any applicable fiscal or
other laws, regulations and directives, but without prejudice to the provisions
of Condition 7. No commission or expenses shall be charged to the Noteholders or
Couponholders in respect of such payments.
(c) Appointment of Agents
The Issuing and Paying Agent and its specified office are listed
below. The Issuer reserves the right at any time to vary or terminate the
appointment of the Issuing and Paying Agent and to appoint additional or other
Issuing and Paying Agents, provided that it will at all times maintain an
Issuing and Paying Agent having a specified office in Singapore.
Notice of any such change or any change of any specified office will
promptly be given to the Noteholders in accordance with Condition 15.
The Agency Agreement may be amended by the Issuer, the Issuing and
Paying Agent and the Trustee, without the consent of any holder, for the purpose
of curing any ambiguity or of curing, correcting or supplementing any defective
provision contained therein or in any manner which the Issuer, the Issuing and
Paying Agent and the Trustee may mutually deem necessary or desirable and which
does not, in the reasonable opinion of the Issuer, the Issuing and Paying Agent
and the Trustee, adversely affect the interests of the holders.
(d) Unmatured Coupons
(i) Fixed Rate Notes and Hybrid Notes should be surrendered for
payment together with all unmatured Coupons (if any) relating to
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such Notes (and, in the case of Hybrid Notes, relating to
interest payable during the Fixed Rate Period), failing which
an amount equal to the face value of each missing unmatured
Coupon (or, in the case of payment not being made in full,
that proportion of the amount of such missing unmatured Coupon
which the sum of principal so paid bears to the total
principal due) will be deducted from the Redemption Amount due
for payment. Any amount so deducted will be paid in the manner
mentioned above against surrender of such missing Coupon
within a period of five years from the Relevant Date for the
payment of such principal (whether or not such Coupon has
become void pursuant to Condition 8).
(ii) Subject to the provisions of the relevant Pricing Supplement
upon the due date for redemption of any Floating Rate Note,
Variable Rate Note or Hybrid Note, unmatured Coupons relating
to such Note (and, in the case of Hybrid Notes, relating to
interest payable during the Floating Rate Period) (whether or
not attached) shall become void and no payment shall be made
in respect of them.
(iii) Where any Floating Rate Note, Variable Rate Note or Hybrid
Note is presented for redemption without all unmatured Coupons
relating to it (and, in the case of Hybrid Notes, relating to
interest payable during the Floating Rate Period), redemption
shall be made only against the provision of such indemnity as
the Issuer may require.
(iv) If the due date for redemption or repayment of any Note is not
a due date for payment of interest, interest accrued from the
preceding due date for payment of interest or the Interest
Commencement Date, as the case may be, shall only be payable
against presentation (and surrender if appropriate) of the
relevant Note.
(e) Non-business days
Subject as provided in the relevant Pricing Supplement, if any date
for the payment in respect of any Note or Coupon is not a business day, the
holder shall not be entitled to payment until the next following business day.
(f) Default Interest
(i) If on or after the due date for payment of any sum in respect of Notes
denominated in Singapore dollars, payment of all or any part of such sum shall
not be made against due presentation of such Notes or, as the case may be, the
Coupons, the Issuer shall pay interest on the amount so unpaid from such due
date up to the day of actual receipt by the relevant Noteholders or, as the case
may be, Couponholders (as well after as before judgment) at a rate per annum
determined by the Issuing and Paying Agent to be equal to one per cent. and the
arithmetic mean (rounded up, if necessary, to the nearest 1/16 per cent.) of the
respective prime lending rates for Singapore dollars quoted by The Development
Bank of Singapore Ltd. The Issuer shall pay any unpaid interest accrued on the
amount so unpaid on the last business day of the calendar month in which such
interest accrued and any interest payable under this paragraph (f)(i) which is
not paid on the last
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business day of the calendar month in which it accrued shall be added to the
overdue sum and itself bear interest accordingly.
(ii) If on or after the due date for payment of any sum in respect of Notes
denominated in a currency other than Singapore dollars, payment of all or any
part of such sum shall not be made against due presentation of such Notes or, as
the case may be, the Coupons, the Issuer shall pay interest on the amount so
unpaid from such due date up to the day of actual receipt by the relevant
Noteholders or, as the case may be, Couponholders (as well after as before
judgment) at a rate per annum determined by the Issuing and Paying Agent to be
equal to one per cent. per annum above the cost to the Issuing and Paying Agent
(including the cost occasioned by or attributable to complying with reserves,
liquidity, deposit or other requirements imposed on it by any relevant authority
or authorities) of funding by whatever means the Issuing and Paying Agent
determines to be appropriate an amount equal to the unpaid sum for such period
(not exceeding three months) as the Issuing and Paying Agent considers
appropriate. So long as the default continues then such rate shall be
re-calculated on the same basis at intervals of such duration as the Issuing and
Paying Agent may select, save that the amount of unpaid interest at the above
rate accruing during the preceding such period shall be added to the amount in
respect of which the Issuer is in default and itself bear interest accordingly.
(iii) Interest at the rate(s) determined in accordance with this
paragraph (f)(i) or (f)(ii) shall be calculated on the Fixed Rate Day Basis (in
the case of a Fixed Rate Note or a Hybrid Note during its Fixed Rate Period),
the FRN Day Basis (in the case of a Floating Rate Note or a Hybrid Note during
its Floating Rate Period) or the VRN Day Basis (in the case of a Variable Rate
Note) and the actual number of days elapsed, shall accrue on a daily basis and
shall be immediately due and payable by the Issuer.
7. TAXATION
All payments in respect of the Notes and the Coupons by the Issuer
shall be made free and clear of, and without deduction or withholding for or on
account of, any present or future taxes, duties, assessments or governmental
charges of whatever nature imposed, levied, collected, withheld or assessed by
or within Singapore or any authority thereof or therein having power to tax,
unless such withholding or deduction is required by law. In such event, in
relation to Notes denominated in Singapore Dollars, the Issuer will not pay any
additional amounts in respect of any such deduction or withholding from payments
in respect of such Notes and Coupons for, or on account of, any such taxes,
duties, assessments or governmental charges and, in relation to Notes which are
not denominated in Singapore Dollars, the Issuer shall pay such additional
amounts as will result in the receipt by the Noteholders and the Couponholders
of such amounts as would have been received by them had no such deduction or
withholding been required, except that no such additional amounts shall be
payable in respect of any Note or Coupon presented for payment:-
(a) by or on behalf of a holder who is subject to such taxes, duties,
assessments or governmental charges by reason of his being
connected with Singapore otherwise than by reason only of the
holding of such Note or Coupon or the receipt of any sums due in
respect of such Note or Coupon (including, without limitation,
the
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holder being a resident of, or a permanent establishment in,
Singapore); or
(b) more than 30 days after the Relevant Date except to the extent
that the holder thereof would have been entitled to such
additional amounts on presenting the same for payment on the last
day of such period of 30 days.
As used in these Conditions, "Relevant Date" in respect of any Note or
Coupon means the date on which payment in respect thereof first becomes due or
(if any amount of the money payable is improperly withheld or refused) the date
on which payment in full of the amount outstanding is made or (if earlier) the
date falling seven days after that on which notice is duly given to the
Noteholders in accordance with Condition 15 that, upon further presentation of
the Note or Coupon being made in accordance with the Conditions, such payment
will be made, provided that payment is in fact made upon presentation, and
references to "principal" shall be deemed to include any premium payable in
respect of the Notes, all Redemption Amounts and all other amounts in the nature
of principal payable pursuant to Condition 5, "interest" shall be deemed to
include all Interest Amounts and all other amounts payable pursuant to Condition
4 and any reference to "principal" and/or "premium" and/or "Redemption Amounts"
and/or "interest" shall be deemed to include any additional amounts which may be
payable under these Conditions.
8. PRESCRIPTION
The Notes and Coupons shall become void unless presented for payment
within five years from the appropriate Relevant Date for payment.
9. EVENTS OF DEFAULT
If any of the following events ("Events of Default") occurs and is
continuing the Trustee at its discretion may, and if so requested by holders of
at least 30 per cent. in principal amount of the Notes then outstanding or if so
directed by an Extraordinary Resolution shall, give notice to the Issuer that
the Notes are immediately repayable, whereupon the Redemption Amount of such
Notes together with accrued interest to the date of payment shall become
immediately due and payable:-
(a) the Issuer does not pay any sum payable by it under any of the
Notes or the Issue Documents within five business days of its due
date;
(b) the Issuer does not perform or comply with any one or more of its
obligations (other than the payment obligation of the Issuer
referred to in paragraph (a)) under the Trust Deed or any of the
Notes and (except where the Trustee certifies that such default
is, in its opinion, incapable of remedy, in which case no such
written notice shall be required) such failure continuing for a
period of 14 days after the Trustee has given notice to the
Issuer requiring the same to be remedied;
(c) any representation or warranty by the Issuer in the Trust Deed or
in any document delivered under the Trust Deed is not complied
with in
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any respect or is or proves to have been incorrect in any respect
when made or deemed repeated;
(d) (i) any indebtedness of the Issuer or any of its Principal
Subsidiaries for borrowed monies is declared due and
payable or accelerated (in each case) prior to its stated
maturity as a result of the occurrence of an event of
default, howsoever called;
(ii) the Issuer or any of its Principal Subsidiaries defaults in
the repayment or discharge of any such indebtedness when
due or at the expiration of any grace period originally
applicable thereto or permitted under the agreement or
other document evidencing or constituting either such
indebtedness; or
(iii) the Issuer or any of its Principal Subsidiaries fails to
pay when properly called upon to do so any guarantee of
indebtedness for borrowed monies;
(e) the Issuer or any of its Principal Subsidiaries being
adjudicated, or otherwise being declared by any legal process to
be, insolvent, or becoming insolvent, or admitting, in writing
its inability to pay its debts, or being deemed unable (within
the meaning of Section 254 of the Companies Act, Chapter 50 of
Singapore) to pay its debts as they mature or become due, or
stopping, suspending or threatening to stop or suspend payment of
all or a substantial part of its debts, or beginning negotiations
or taking any proceedings or other steps with a view to the
readjustment, rescheduling or deferral of all its indebtedness
(or of a substantial part of its indebtedness which it will or
might otherwise be unable to pay when due) or proposing or making
any assignment or arrangement or composition with or for the
benefit of its creditors or any class of creditors (within the
meaning of Section 210 of the Companies Act, Chapter 50 of
Singapore);
(f) a distress, execution or other legal process being levied or
enforced upon or sued out against all or a substantial part of
the business, undertaking or assets of the Issuer or any of its
Principal Subsidiaries and such distress, execution or other
process is not dismissed, removed or discharged within 14 days of
the date of such distress, execution or other process being
levied, enforced upon or sued out;
(g) any security on or over the assets of the Issuer or any of its
Principal Subsidiaries becomes enforceable;
(h) an order being made or a resolution being passed for the winding
up or dissolution of the Issuer or any of its Principal
Subsidiaries otherwise than a winding up or dissolution for the
purposes of or pursuant to an amalgamation, consolidation,
reorganisation or reconstruction not involving insolvency and the
terms thereof having been previously certified in writing by the
Trustee not to be, in its opinion, materially prejudicial to the
interests of the Noteholders;
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(i) a receiver, judicial manager, trustee, agent or similar officer
being appointed of or in relation to the Issuer or any of its
Principal Subsidiaries or of the whole or a substantial part of
the business, undertaking or assets of the Issuer or any of its
Principal Subsidiaries;
(j) the Issuer or any of its Principal Subsidiaries ceases or
threatens to cease to carry on all or a substantial part of its
business or (otherwise than as permitted by the provisions of the
Trust Deed) disposes or threatens to dispose of the whole or a
substantial part of its property or assets (in each case,
otherwise than for the purposes of such a consolidation,
amalgamation, merger or reconstruction as is referred to in
sub-paragraph (h) above);
(k) a moratorium is agreed or declared in respect of all or any part
of the indebtedness of the Issuer or any of its Principal
Subsidiaries or any step is taken by any person with a view to
the seizure, compulsory acquisition, expropriation or
nationalisation of all or a substantial part of the assets of the
Issuer or any of its Principal Subsidiaries;
(l) any action, condition or thing (including the obtaining of any
necessary consent) at any time required to be taken, fulfilled or
done for any of the purposes stated in Clause 14(c) of the Trust
Deed is not taken, fulfilled or done, or any such consent ceases
to be in full force and effect without modification or any
condition in or relating to any such consent is not complied with
(unless that consent or condition is no longer required or
applicable);
(m) it is or will become unlawful for the Issuer to perform or comply
with any one or more of its obligations under any of the Issue
Documents or any of the Notes;
(n) any of the Issue Documents or any of the Notes ceases for any
reason (or is claimed by the Issuer not) to be the legal and
valid obligations of the Issuer, binding upon it in accordance
with its terms;
(o) any litigation, arbitration or administrative proceeding (other
than those of a frivolous or vexatious nature) is current or
pending (i) to restrain the exercise of any of the rights and/or
the performance or enforcement of or compliance with any of the
obligations of the Issuer under the Trust Deed or any of the
Notes or (ii) which affects or is likely to affect the ability of
the Issuer to perform any of its payment or other material
obligations under the Trust Deed or any of the Notes;
(p) any event occurs which, under the law of any relevant
jurisdiction, has an analogous or equivalent effect to any of the
events mentioned in paragraph (e), (f), (g), (h), (i) or (k); and
66
(q) the Issuer or any of its Principal Subsidiaries being declared by
the Minister of Finance to be a declared company under the
provisions of Part IX of the Companies Act, Chapter 50 of
Singapore,
and in the case of any of the events in paragraphs (b), (c) and (l), the Trustee
shall have certified in writing to the Issuer that the event is, in its opinion,
materially prejudicial to the interests of the Noteholders.
In this Condition, "Principal Subsidiaries" means at any particular
time, any subsidiary of the Issuer:-
(1) whose profits before tax, as shown by the accounts (consolidated
in the case of a subsidiary which itself has subsidiaries) of
such subsidiary, based upon which the latest audited consolidated
accounts of the Issuer and its subsidiaries have been prepared,
are at least 20 per cent. of the profits before tax of the Issuer
and its subsidiaries as shown by such audited consolidated
accounts; or
(2) whose total assets, as shown by the accounts (consolidated in the
case of a subsidiary which itself has subsidiaries) of such
subsidiary, based upon which the latest audited consolidated
accounts of the Issuer and its subsidiaries have been prepared,
are at least 20 per cent. of the total assets of the Issuer and
its subsidiaries as shown by such audited consolidated accounts,
provided that if any such subsidiary (the "transferor") shall at any time
transfer the whole or a substantial part of its business, undertaking or assets
to another subsidiary or the Issuer (the "transferee") then:-
(aa) if the whole or substantially the whole of the business,
undertaking and assets of the transferor shall be so transferred,
the transferor shall thereupon cease to be a Principal Subsidiary
and the transferee (unless it is the Issuer) shall thereupon
become a Principal Subsidiary; and
(bb) if part only of the business, undertaking and assets of the
transferor shall be so transferred, the transferor shall remain a
Principal Subsidiary and the transferee (unless it is the Issuer)
shall thereupon become a Principal Subsidiary unless immediately
following such transfer, the profits before tax or the total
assets of the transferor or, as the case may be, the transferee
fall below 20 per cent. of the profits before tax or, as the case
may be, the total assets of the Issuer and its subsidiaries, as
determined in accordance with paragraph (1) or, as the case may
be, paragraph (2) above.
Any subsidiary which becomes a Principal Subsidiary by virtue of (aa)
above or which remains or becomes a Principal Subsidiary by virtue of (bb) above
shall continue to be a Principal Subsidiary until the date of issue of the first
audited consolidated accounts of the Issuer and its subsidiaries prepared as at
a date later than the date of the relevant transfer which show the profits
before tax or total assets, as the case may be, of
67
such subsidiary, as shown by the accounts (consolidated in the case of a company
which itself has subsidiaries) of such subsidiary, based upon which such audited
consolidated accounts have been prepared, to be less than 20 per cent. of the
profits before tax or total assets, as the case may be, of the Issuer and its
subsidiaries as shown by such audited consolidated accounts. A report by the
Auditors for the time being of the Issuer, who shall also be responsible for
producing any pro-forma accounts required for the above purposes, that in their
opinion a subsidiary is or is not a Principal Subsidiary shall, in the absence
of manifest error, be conclusive, Provided always that any reference in these
Conditions to the Principal Subsidiaries of the Issuer shall not include Winstek
Semiconductor Corporation.
10. ENFORCEMENT OF RIGHTS
At any time after the Notes shall have become due and payable, the
Trustee may, at its discretion and without further notice, institute such
proceedings against the Issuer as it may think fit to enforce repayment of the
Notes, together with accrued interest, but it shall not be bound to take any
such proceedings unless (a) it shall have been so directed by an Extraordinary
Resolution of the Noteholders or so requested in writing by Noteholders holding
not less than 30 per cent. in principal amount of the Notes outstanding and (b)
it shall have been indemnified by the Noteholders to its satisfaction. No
Noteholder or Couponholder shall be entitled to proceed directly against the
Issuer unless the Trustee, having become bound to do so, fails or neglects to do
so within a reasonable period and such failure or neglect shall be continuing.
11. MEETING OF NOTEHOLDERS AND MODIFICATIONS
The Trust Deed contains provisions for convening meetings of
Noteholders of a Series to consider any matter affecting their interests,
including modification by Extraordinary Resolution of the Notes of such Series
(including these Conditions insofar as the same may apply to such Notes) or any
of the provisions of the Trust Deed.
The Trustee or the Issuer at any time may, and the Trustee upon the
request in writing by Noteholders holding not less than one-tenth of the
principal amount of the Notes of any Series for the time being outstanding
shall, convene a meeting of the Noteholders of that Series. An Extraordinary
Resolution duly passed at any such meeting shall be binding on all the
Noteholders, whether present or not and on all relevant Couponholders, except
that any Extraordinary Resolution proposed, inter alia, (a) to amend the dates
of maturity or redemption of the Notes or any date for payment of interest or
Interest Amounts on the Notes, (b) to reduce or cancel the principal amount of,
or any premium payable on redemption of, the Notes, (c) to reduce the rate or
rates of interest in respect of the Notes or to vary the method or basis of
calculating the rate or rates of interest or the basis for calculating any
Interest Amount in respect of the Notes, (d) to vary any method of, or basis
for, calculating the Redemption Amount, (e) to vary the currency or currencies
of payment or denomination of the Notes, (f) to take any steps that as specified
hereon may only be taken following approval by an Extraordinary Resolution to
which the special quorum provisions apply or (g) to modify the provisions
concerning the quorum required at any meeting of Noteholders or the majority
required to pass the Extraordinary Resolution, will only be binding if passed at
a meeting of the Noteholders (or at any adjournment thereof) at which a special
quorum (provided for in the Trust Deed) is present.
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The Trustee may agree, without the consent of the Noteholders or
Couponholders, to (a) any modification of any of the provisions of the Trust
Deed which in the opinion of the Trustee is of a formal, minor or technical
nature or is made to correct a manifest error or to comply with mandatory
provisions of Singapore law and (b) any other modification (except as mentioned
in the Trust Deed), and any waiver or authorisation of any breach or proposed
breach, of any of the provisions of the Trust Deed which is in the opinion of
the Trustee not materially prejudicial to the interests of the Noteholders. Any
such modification, authorisation or waiver shall be binding on the Noteholders
and the Couponholders and, if the Trustee so requires, such modification shall
be notified to the Noteholders as soon as practicable.
In connection with the exercise of its functions (including but not
limited to those in relation to any proposed modification, waiver, authorisation
or substitution) the Trustee shall have regard to the interests of the
Noteholders as a class and shall not have regard to the consequences of such
exercise for individual Noteholders or Couponholders.
These Conditions may be amended, modified, or varied in relation to
any Series of Notes by the terms of the relevant Pricing Supplement in relation
to such Series.
12. REPLACEMENT OF NOTES AND COUPONS
If a Note or Coupon is lost, stolen, mutilated, defaced or destroyed
it may be replaced, subject to applicable laws, at the specified office of the
Issuing and Paying Agent, or at the specified office of such other Issuing and
Paying Agent as may from time to time be designated by the Issuer for the
purpose and notice of whose designation is given to Noteholders in accordance
with Condition 15, on payment by the claimant of the fees and costs incurred in
connection therewith and on such terms as to evidence, security and indemnity
(which may provide, inter alia, that if the allegedly lost, stolen or destroyed
Note or Coupon is subsequently presented for payment, there will be paid to the
Issuer on demand the amount payable by the Issuer in respect of such Note or
Coupon) and otherwise as the Issuer may require. Mutilated or defaced Notes or
Coupons must be surrendered before replacements will be issued.
13. FURTHER ISSUES
The Issuer may from time to time without the consent of the
Noteholders or Couponholders create and issue further notes having the same
terms and conditions as the Notes of any Series and so that the same shall be
consolidated and form a single Series with such Notes, and references in these
Conditions to "Notes" shall be construed accordingly.
14. INDEMNIFICATION OF THE TRUSTEE
The Trust Deed contains provisions for the indemnification of the
Trustee and for its relief from responsibility, including provisions relieving
it from taking proceedings to enforce repayment unless indemnified to its
satisfaction. The Trust Deed also contains a provision entitling the Trustee to
enter into business transactions with the Issuer or any of its subsidiaries
without accounting to the Noteholders or Couponholders for any profit resulting
from such transactions.
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15. NOTICES
Notices to the holders will be valid if published in a daily newspaper
of general circulation in Singapore (or, if the holders of any Series of Notes
can be identified, notices to such holders will also be valid if they are given
to each of such holders). It is expected that such publication will 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 as provided above.
Couponholders shall be deemed for all purposes to have notice of the
contents of any notice to the holders in accordance with this Condition 15.
Until such time as any Definitive Notes (as defined in the Trust Deed)
are issued, there may, so long as the Global Note(s) is or are held in its or
their entirety on behalf of the Depository, be substituted for such publication
in such newspapers the delivery of the relevant notice to the Depository for
communication by it to the Noteholders, except that if the Notes are listed on
the Singapore Exchange Securities Trading Limited and the rules of such exchange
so require, notice will in any event be published in accordance with the
previous paragraph. Any such notice shall be deemed to have been given to the
Noteholders on the seventh day after the day on which the said notice was given
to the Depository.
Notices to be given by any Noteholder pursuant hereto (including to
the Issuer) shall be in writing and given by lodging the same, together with the
relative Note or Notes, with the Issuing and Paying Agent. Whilst the Notes are
represented by a Global Note, such notice may be given by any Noteholder to the
Issuing and Paying Agent through the Depository in such manner as the Issuing
and Paying Agent and the Depository may approve for this purpose.
Notwithstanding the other provisions of this Condition, in any case
where the identity and addresses of all the Noteholders are known to the Issuer,
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.
16. GOVERNING LAW
The Notes and the Coupons are governed by, and shall be construed in
accordance with, the laws of Singapore.
17. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 2001
No person shall have any right to enforce any term or condition of the
Notes under the Contracts (Rights of Third Parties) Xxx 0000.
Issuing and Paying Agent
Citicorp Investment Bank (Singapore) Limited,
000, Xxxxxxxx Xxxxxx 0, #00-00,
00
Xxxxxxxx Xxxxxxxx,
Xxxxxxxxx 000000.
71
S C H E D U L E 1
PART III
FORM OF COUPON FOR FIXED RATE NOTES AND HYBRID NOTES
On the front:-
ST ASSEMBLY TEST SERVICES LTD
S$500,000,000 MULTICURRENCY MEDIUM TERM NOTE PROGRAMME
Series No. [ ]
[Title of Issue]
Coupon for [ ] due on [ ], [ ]*.
This Coupon is payable to bearer (subject to the Conditions endorsed
on the Note to which this Coupon appertains, which shall be binding upon the
holder of this Coupon whether or not it is for the time being attached to such
Note) at the specified office of the Issuing and Paying Agent set out on the
reverse hereof (or any further or other Issuing and Paying Agents or specified
offices duly appointed or nominated and notified to the Noteholders).
ST ASSEMBLY TEST SERVICES LTD
By:
--------------------------------
Duly Authorised Officer
* Applicable to Hybrid Notes during the Fixed Rate Period only.
--------------------------------------------------------------------------------
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
--------------------------------------------------------------------------------
On the reverse:-
Issuing and Paying Agent
Citicorp Investment Bank (Singapore) Limited,
000, Xxxxxxxx Xxxxxx 0, #00-00,
Xxxxxxxx Xxxxxxxx,
Xxxxxxxxx 000000.
72
S C H E D U L E 1
PART IV
FORM OF COUPON FOR FLOATING RATE NOTES,
VARIABLE RATE NOTES AND HYBRID NOTES
On the front:-
ST ASSEMBLY TEST SERVICES LTD
S$500,000,000 MULTICURRENCY MEDIUM TERM NOTE PROGRAMME
Series No. [ ]
[Title of Issue]
Coupon for the amount of interest due on the [Interest Payment Date
falling in](1)/[first day of the Interest Period ending in](2) [ ], [ ]
(and which is subject to adjustment in accordance with the Conditions referred
to below).
This Coupon is payable to bearer (subject to the Conditions endorsed
on the Note to which this Coupon appertains, which shall be binding upon the
holder of this Coupon whether or not it is for the time being attached to such
Note) at the specified office of the Issuing and Paying Agent set out on the
reverse hereof (or any further or other Issuing and Paying Agents or specified
offices duly appointed or nominated and notified to the Noteholders).
If the Note to which this Coupon appertains shall have become due and
payable before the maturity date of this Coupon, this Coupon shall become void
and no payment shall be made in respect of it.
ST ASSEMBLY TEST SERVICES LTD
By:
--------------------------------
Duly Authorised Officer
73
On the reverse:-
Issuing and Paying Agent
Citicorp Investment Bank (Singapore) Limited,
000, Xxxxxxxx Xxxxxx 0, #00-00,
Xxxxxxxx Xxxxxxxx,
Xxxxxxxxx 000000.
--------------------------------------------------------------------------------
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
--------------------------------------------------------------------------------
Notes:-
(1) in the case of Floating Rate Notes, Variable Rate Notes and (during the
Floating Rate Period only) Hybrid Notes.
(2) in the case of Variable Rate Notes
74
S C H E D U L E 2
FORM OF TEMPORARY GLOBAL NOTE
ST ASSEMBLY TEST SERVICES LTD
(Incorporated with limited liability in Singapore)
S$500,000,000 MULTICURRENCY MEDIUM TERM NOTE PROGRAMME
Series No. [ ]
Tranche No. [ ]
[Title of Issue]
TEMPORARY GLOBAL NOTE
This is a Temporary Global Note in respect of an issue of notes ("Notes"),
having an aggregate principal amount equal to the Denomination Amount stated
above constituted by a Trust Deed (the "Trust Deed") dated 10th January, 2002
made between ST Assembly Test Services Ltd (the "Issuer") and British and
Malayan Trustees Limited, as trustee for the holders of the Notes.
Authority to Issue
The issue of the Notes was authorised by resolutions of the Board of Directors
of the Issuer passed on 25th September, 2001.
Interpretation and Definitions
References in this Temporary Global Note to the "Conditions" are to the Terms
and Conditions applicable to the Notes (which are in the form set out in Part II
of Schedule 1 to the Trust Deed) as such form is supplemented and/or modified
and/or superseded by the provisions of this Temporary Global Note. Other
capitalised terms used in this Temporary Global Note shall have the meanings
given to them in the Conditions or the Trust Deed.
Promise to Pay
The Issuer for value received hereby unconditionally promises to pay to the
bearer of this Temporary Global Note on the Maturity Date stated below (if this
Temporary Global Note is stated to be a Fixed Rate Note or Hybrid Note) or on
the Interest Payment Date falling in the Redemption Month stated below (if this
Temporary Global Note is stated to be a Floating Rate Note, Variable Rate Note
or Hybrid Note) or on such earlier date as the Redemption Amount may become
repayable in accordance with the Conditions upon presentation and surrender of
this Temporary Global Note the Redemption Amount in respect of the
75
aggregate principal amount of Notes represented by this Temporary Global Note
and (unless this Temporary Global Note does not bear interest) to pay interest
in respect of such aggregate principal amount of Notes from the Interest
Commencement Date stated below at the Interest Rate stated below (if this
Temporary Global Note is stated below to be a Fixed Rate Note), at the rates
determined in accordance with Condition 4(II) (if this Temporary Global Note is
stated to be a Floating Rate Note or a Variable Rate Note) or at the Interest
Rate stated below and at the rates of interest determined in accordance with
Condition 4(III) (if it is stated to be a Hybrid Note) in arrear on the dates
for payment provided for in the Conditions together with such other amounts (if
any) as may be payable, all subject to and in accordance with the Conditions and
the provisions of the Trust Deed [; provided, however, that no payments shall be
made on this Temporary Global Note prior to the Exchange Date (as defined
herein) in respect of Notes represented by this Temporary Global Note unless the
Issuing and Paying Agent shall have received, prior to the date of each such
payment, certification of non-U.S. beneficial ownership by The Central
Depository (Pte) Limited (the "Depository") substantially in the form of the
certificate attached as Exhibit A to the effect that the Depository has received
a certificate substantially in the form of the certificate attached as Exhibit
B; and provided, further, such certification shall be deemed a request to
exchange this Temporary Global Note as provided herein if such certification is
received more than 40 days after the issue date of the Notes. On or after the
Exchange Date, no payments will be made on this Temporary Global Note unless
exchange of this Temporary Global Note for interests in the Permanent Global
Note (as defined herein) is improperly withheld or refused](1).
The aggregate principal amount from time to time of this Temporary Global Note
shall be an amount equal to the aggregate principal amount of the Notes as shall
be shown by the latest entry in the relevant column of the Principal Schedule
hereto, which shall be completed by or on behalf of the Issuing and Paying Agent
upon (i) the issue of Notes initially represented hereby, [(ii) the exchange of
the whole or a part of this Temporary Global Note for interests in the Permanent
Global Note (as defined herein),](1) [(ii) the exchange in whole (but not in
part) of this Temporary Global Note for Definitive Notes (as defined
herein),](2), (iii) the redemption, purchase or cancellation of Notes
represented hereby, (iv) payments of principal in respect of this Temporary
Global Note [and/or](4) [(v) exchanges for Direct Rights under the Deed of
Covenant](3), all as described below.
[The permanent global Note (the "Permanent Global Note") to be issued on
exchange for interests in this Temporary Global Note will be substantially in
the form set out in Schedule 3 to the Trust Deed](1).
[So long as Notes are represented by this Temporary Global Note and this
Temporary Global Note is held by the Depository, transfers of beneficial
interests in this Temporary Global Note will be effected only through records
maintained by the Depository.](3)
Exchange
[The Issuer hereby irrevocably undertakes that it will, not later than the date
falling [three calendar months] after the Issue Date (the "Exchange Date"),
exchange this Temporary Global Note (free of charge to the holder) for bearer
Notes in definitive form ("Definitive Notes") in an aggregate principal amount
equal to the principal amount of this Temporary Global Note submitted for
exchange.](2)
76
[On or after the Exchange Date (as defined herein), this Temporary Global Note
may be exchanged in whole or in part (free of charge to the holder) by its
presentation and, on exchange in full, surrender to or to the order of the
Issuing and Paying Agent for interests in the Permanent Global Note in an
aggregate principal amount equal to the principal amount of this Temporary
Global Note submitted for exchange and with respect to which there shall also be
presented to the Issuing and Paying Agent a certificate dated no earlier than
the Exchange Date from the Depository substantially in the form of the
certificate attached as Exhibit A.
"Exchange Date" means a day falling not less than 40 days from the issue date of
the Notes after the day on which the notice in writing has been given to the
Issuing and Paying Agent by the Depository acting on behalf of an Accountholder
(as defined below) requiring exchange and on which commercial banks are open for
business in Singapore.
Upon the whole or part of this Temporary Global Note being exchanged for the
Permanent Global Note, the Permanent Global Note shall be exchangeable in
accordance with its terms for Definitive Notes.](1)
[The Definitive Notes for which this Temporary Global Note may be exchangeable
shall be duly executed and authenticated, shall have attached to them all
Coupons in respect of interest that has not already been paid on this Temporary
Global Note and shall be substantially in the form set out in Part I of Schedule
1 to the Trust Deed.](2)
Upon any exchange of this Temporary Global Note for [an equivalent interest in
the Permanent Global Note]/[Definitive Notes](4), the portion of the principal
amount hereof so exchanged shall be endorsed by or on behalf of the Issuing and
Paying Agent in the Principal Schedule hereto, whereupon the principal amount
hereof shall be reduced for all purposes by the amount so exchanged and
endorsed. Upon exchange (or payment) in whole, this Temporary Global Note shall
be deemed fully paid and shall be cancelled by the Issuing and Paying Agent and,
unless otherwise instructed by the Issuer, the cancelled Temporary Global Note
shall be returned to the Issuer.
Benefit of Conditions
Except as otherwise specified herein, this Temporary Global Note is subject to
the Conditions and the provisions of the Trust Deed and, until the whole of this
Temporary Global Note is exchanged for [equivalent interests in the Permanent
Global Note]/[Definitive Notes](4), the holder of this Temporary Global Note
shall in all respects be entitled to the same benefits as if it were the holder
of [the Permanent Global Note in respect of interests in which it may be
exchanged]/[the Definitive Notes for which it may be exchanged](4) as if [the
Permanent Global Note]/[such Definitive Notes](4) had been issued on the Issue
Date, except that the holder of this Temporary Global Note shall not be entitled
to receive any payment hereon except as provided herein.
Payments
[No person shall be entitled to receive any payment in respect of the Notes
represented by this Temporary Global Note that falls due on or after the
Exchange Date unless, upon due presentation of this Temporary Global Note for
exchange, delivery of Definitive Notes is improperly withheld or refused by or
on behalf of the Issuer.](2)
77
If any payment in full of principal is made in respect of any Note represented
by this Temporary Global Note, the portion of this Temporary Global Note
representing such Note shall be cancelled and the amount so cancelled shall be
endorsed by or on behalf of the Issuing and Paying Agent in the Principal
Schedule hereto (such endorsement being prima facie evidence that the payment in
question has been made) whereupon the principal amount hereof shall be reduced
for all purposes by the amount so cancelled and endorsed. If any other payments
are made in respect of the Notes represented by this Temporary Global Note, a
record of each such payment shall be endorsed by or on behalf of the Issuing and
Paying Agent on such Payment Schedule hereto (such endorsement being prima facie
evidence that the payment in question has been made).
[Accountholders
In accordance with the requirements of the Depository, for so long as any of the
Notes is represented by this Temporary Global Note and this Temporary Global
Note is held by the Depository, each person who is for the time being shown in
the records of the Depository as the holder of a particular principal amount of
such Notes (each an "Accountholder") shall be deemed to be (and shall be treated
by the Issuer, the Issuing and Paying Agent, all other agents of the Issuer and
the Trustee as) the holder of such principal amount of Notes for all purposes
(including, without limitation, for the purpose of giving notices under the
Conditions) other than with respect to the payment of principal, interest and
other amounts in respect of the Notes, the right to which shall be vested, as
against the Issuer, solely in the bearer of this Temporary Global Note, in
accordance with and subject to its terms. Each Accountholder must look solely to
the Depository for its share of each payment made to the bearer of this
Temporary Global Note. Any certificate or other document issued by the
Depository as to the principal amount of Notes standing to the account of any
Accountholder shall be conclusive and binding for all purposes save in the case
of manifest error.
The Issuer covenants in favour of the Trustee and each Accountholder that it
will make all payments in respect of the principal amount of Notes for the time
being shown in the records of the Depository as being held by the Accountholder
and represented by this Temporary Global Note to the bearer of this Temporary
Global Note and acknowledges the rights of each Accountholder under the Deed of
Covenant (the "Deed of Covenant", which expression shall include any amendments
and/or supplements thereto and/or restatements thereof made from time to time)
dated 10th January, 2002 executed by the Issuer in relation to the Notes.](3)
Cancellation
Cancellation of any Note represented by this Temporary Global Note that is
required by the Conditions to be cancelled shall be effected by reduction in the
principal amount of this Temporary Global Note representing such Note on its
presentation to or to the order of the Issuing and Paying Agent for endorsement
in the Principal Schedule hereto, whereupon the principal amount hereof shall be
reduced for all purposes by the amount so cancelled and endorsed.
[Direct Rights
78
If there shall occur any event of default entitling the Trustee to declare all
of the Notes to be due and payable, as provided in the Conditions, the Trustee
may exercise the right to declare Notes represented by this Temporary Global
Note due and payable in the circumstances described in the Conditions by stating
in a notice given to the Issuer (the "default notice") the principal amount of
Notes (which may be less than the outstanding principal amount of this Temporary
Global Note) which is being declared due and payable.
Following the giving of the default notice, the holder of the Notes represented
by this Temporary Global Note may (subject as provided below) elect that direct
rights ("Direct Rights") under the provisions of the Deed of Covenant shall come
into effect in respect of a principal amount of Notes up to the aggregate
principal amount in respect to which such default notice has been given. Such
election shall be made by notice to the Issuing and Paying Agent and
presentation of this Temporary Global Note to or to the order of the Issuing and
Paying Agent for reduction of the principal amount of Notes represented by this
Temporary Global Note by such amount as may be stated in such notice and by
endorsement of the Principal Schedule hereto of the principal amount of Notes in
respect of which Direct Rights have arisen under the Deed of Covenant. Upon each
such notice being given, this Temporary Global Note shall become void to the
extent of the principal amount stated in such notice, save to the extent that
the appropriate Direct Rights shall fail to take effect. No such election may
however be made on or before the Exchange Date unless the holder elects in such
notice that the exchange for such Notes shall no longer take place.](3)
Notices
Notices required to be given in respect of the Notes represented by this
Temporary Global Note may be given by their being delivered (so long as this
Temporary Global Note is held on behalf of the Depository) to the Depository, or
otherwise to the holder of this Temporary Global Note rather than by publication
as required by the Conditions, except that so long as the Notes are listed on
Singapore Exchange Securities Trading Limited and the rules of that exchange so
require, notices in respect of such Notes shall also be published in a daily
newspaper in the English language having general circulation in Singapore.
Others
No provision of this Temporary Global Note shall alter or impair the obligation
of the Issuer to pay the principal and premium (if any) of and interest on the
Notes when due in accordance with the Conditions.
This Temporary Global Note shall not become valid or obligatory for any purpose
unless and until the Certificate of Authentication hereon has been signed by or
on behalf of Citicorp Investment Bank (Singapore) Limited as Issuing and Paying
Agent.
This Temporary Global Note shall be governed by, and construed in accordance
with, the laws of Singapore.
79
IN WITNESS whereof the Issuer has caused this Temporary Global Note to be
executed under its Common Seal and signed manually on its behalf by two
Directors or a Director and the Secretary of the Issuer.
ST ASSEMBLY TEST SERVICES LTD
-----------------------------------
Director
-----------------------------------
Director/Secretary
Dated as of the Issue Date specified above.
CERTIFICATE OF AUTHENTICATION
This Temporary Global Note is authenticated by or on behalf of the Issuing and
Paying Agent, Citicorp Investment Bank (Singapore) Limited.
By:
---------------------------------------
duly authorised signatory
(Without recourse, warranty or liability)
--------------------------------------------------------------------------------
ANY UNITED STATES PERSON WHO HOLDS THIS OB LIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
--------------------------------------------------------------------------------
Notes:-
(1) Insert where Temporary Global Note is to be exchanged for Permanent Global
Note.
(2) Insert where Temporary Global Note is to be exchanged for Definitive
Notes.
(3) Insert where Temporary Global Note is to be deposited with the Depository.
(4) Delete as appropriate.
80
PRINCIPAL SCHEDULE
Part I
Principal Amount of Notes Represented by this Temporary Global Note
The following (i) issue of Notes initially represented by this Temporary Global
Note, [(ii) exchanges of the whole or a part of this Temporary Global Note for
interests in the Permanent Global Note,](1) [(ii) exchange in whole (but not in
part) of this Temporary Global Note for Definitive Notes,](2) (iii) redemption,
purchase or cancellation of interests in this Temporary Global Note, (iv)
payments of principal in respect of this Temporary Global Note [and/or](4), [(v)
exchanges for Direct Rights under the Deed of Covenant](3) have been made,
resulting in the principal amount of this Temporary Global Note specified in the
latest entry in the fourth column below:-
REASON FOR
DECREASE IN
AMOUNT OF PRINCIPAL AMOUNT
DECREASE IN OF THIS TEMPORARY PRINCIPAL AMOUNT
PRINCIPAL AMOUNT GLOBAL NOTE OF THIS TEMPORARY NOTATION MADE BY
OF THIS (EXCHANGE, GLOBAL NOTE ON OR ON BEHALF OF
TEMPORARY GLOBAL CANCELLATION OR ISSUE OR THE ISSUING AND
DATE NOTE PAYMENT) FOLLOWING DECREASE PAYING AGENT
------------- ----------------- ----------------- ------------------ -----------------
------------- ----------------- ----------------- ------------------ -----------------
------------- ----------------- ----------------- ------------------ -----------------
------------- ----------------- ----------------- ------------------ -----------------
------------- ----------------- ----------------- ------------------ -----------------
------------- ----------------- ----------------- ------------------ -----------------
------------- ----------------- ----------------- ------------------ -----------------
------------- ----------------- ----------------- ------------------ -----------------
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------------- ----------------- ----------------- ------------------ -----------------
------------- ----------------- ----------------- ------------------ -----------------
------------- ----------------- ----------------- ------------------ -----------------
81
Part II
Direct Rights
The principal amount of Notes in respect of which Direct Rights have arisen
under the Deed of Covenant is shown by the latest entry in the third column
below:-
ADDITIONAL PRINCIPAL AGGREGATE PRINCIPAL
AMOUNT OF NOTES IN AMOUNT SUBJECT TO NOTATION BY OR ON
RESPECT OF WHICH DIRECT RIGHTS BEHALF OF THE
DIRECT RIGHTS HAVE FOLLOWING SUCH ISSUING AND
DATE BEEN ELECTED ELECTION PAYING AGENT
---------------- -------------------- -------------------- -----------------
---------------- -------------------- -------------------- -----------------
---------------- -------------------- -------------------- -----------------
---------------- -------------------- -------------------- -----------------
---------------- -------------------- -------------------- -----------------
---------------- -------------------- -------------------- -----------------
---------------- -------------------- -------------------- -----------------
---------------- -------------------- -------------------- -----------------
---------------- -------------------- -------------------- -----------------
---------------- -------------------- -------------------- -----------------
---------------- -------------------- -------------------- -----------------
---------------- -------------------- -------------------- -----------------
---------------- -------------------- -------------------- -----------------
---------------- -------------------- -------------------- -----------------
---------------- -------------------- -------------------- -----------------
---------------- -------------------- -------------------- -----------------
---------------- -------------------- -------------------- -----------------
---------------- -------------------- -------------------- -----------------
---------------- -------------------- -------------------- -----------------
---------------- -------------------- -------------------- -----------------
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---------------- -------------------- -------------------- -----------------
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---------------- -------------------- -------------------- -----------------
---------------- -------------------- -------------------- -----------------
---------------- -------------------- -------------------- -----------------
---------------- -------------------- -------------------- -----------------
---------------- -------------------- -------------------- -----------------
---------------- -------------------- -------------------- -----------------
82
PAYMENT SCHEDULE
The following payments in respect of this Temporary Global Note have been made:-
NOTATION MADE BY
AMOUNT OF AMOUNT OF OR ON BEHALF OF
DUE DATE OF DATE OF INTEREST DUE INTEREST THE ISSUING AND
PAYMENT PAYMENT AND PAYABLE PAID PAYING AGENT
----------------- --------------- --------------- --------------- ------------------
----------------- --------------- --------------- --------------- ------------------
----------------- --------------- --------------- --------------- ------------------
----------------- --------------- --------------- --------------- ------------------
----------------- --------------- --------------- --------------- ------------------
----------------- --------------- --------------- --------------- ------------------
----------------- --------------- --------------- --------------- ------------------
----------------- --------------- --------------- --------------- ------------------
----------------- --------------- --------------- --------------- ------------------
----------------- --------------- --------------- --------------- ------------------
----------------- --------------- --------------- --------------- ------------------
----------------- --------------- --------------- --------------- ------------------
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----------------- --------------- --------------- --------------- ------------------
----------------- --------------- --------------- --------------- ------------------
----------------- --------------- --------------- --------------- ------------------
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----------------- --------------- --------------- --------------- ------------------
----------------- --------------- --------------- --------------- ------------------
----------------- --------------- --------------- --------------- ------------------
----------------- --------------- --------------- --------------- ------------------
83
THE SCHEDULE
[Insert the provisions of the relevant Pricing Supplement
that relate to the Conditions or the Global Notes as the Schedule]
84
[EXHIBIT A
FORM OF CLEARING SYSTEM CERTIFICATE OF
NON-U.S. CITIZENSHIP AND RESIDENCY
ST ASSEMBLY TEST SERVICES LTD (the "Issuer")
[Title of Issue]
Security Code: [ ] ISIN No. [ ] (the "Notes")
This is to certify that, based solely on certificates we have received
in writing, by tested telex or by electronic transmission from member
organisations appearing in our records as persons being entitled to a portion of
the principal amount set out below (our "Member Organisations") substantially to
the effect required in the Temporary Global Note in respect of the Notes, as of
the date hereof [ ] principal amount of the Notes (1) is owned by
persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States persons"), (2) is owned by United States persons that (a) are
foreign branches of United States financial institutions (as defined in U.S.
Treasury Regulations Section 1.165-12(c)(1)(v) ("financial institutions"))
purchasing for their account or for resale, or (b) acquired the Notes through
foreign branches of United States financial institutions and who hold the Notes
through such United States financial institutions on the date hereof (and in
either case (a) or (b), each such United States financial institution has
agreed, on its own behalf or through its agent, that we may advise the Issuer or
the Issuer's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (3) is owned by United States or foreign
financial institutions for purposes of resale during the restricted period (as
defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the
further effect that United States or foreign financial institutions described in
clause (3) above (whether or not also described in clause (1) or (2)) have
certified that they have not acquired the Notes for purposes of resale directly
or indirectly to a United States person or to a person within the United States
or its possessions. Any such certification by electronic transmission satisfies
the requirements set forth in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(3) (ii). We will retain all certifications from our Member
Organisations for the period specified in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(3)(i).
We further certify (1) that we are not making available herewith for
exchange (or, if relevant, exercise of any rights or collection of any interest)
any portion of the Temporary Global Note excepted in such certificates and (2)
that as of the date hereof we have not received any notification from any of our
Member Organisations to the effect that the statements made by such Member
Organisation with respect to any portion of the part submitted herewith for
exchange (or, if relevant, exercise of any rights or collection of any interest)
are no longer true and cannot be relied upon as of the date hereof.
85
As used therein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, America Samoa, Wake Island
and the Northern Mariana Islands.
If the Notes are of a category contemplated in Section 230.903(b)(3)
of Regulation S under the United States Securities Act of 1933, as amended (the
"Act") then this is also to certify with respect to such nominal amount of Notes
set forth above that, except as set forth below, we have received in writing, by
tested telex or by electronic transmission, from our Member Organisations
entitled to a portion of such nominal amount, certifications with respect to
such portion, substantially to the effect set forth in the Temporary Global Note
in respect of the Notes.
We understand that this certificate is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certificate is or would be
relevant, we irrevocably authorise you to produce this certificate to any
interested party in such proceedings.
Yours faithfully,
The Central Depository (Pte) Limited
By: Dated:
--------------------------------- -----------------------------
Authorised Signatory [Not earlier than the Exchange Date
(as defined in the Temporary
Global Note)]
86
EXHIBIT B
FORM OF CERTIFICATE OF
NON-U.S. CITIZENSHIP AND RESIDENCY
ST ASSEMBLY TEST SERVICES LTD (the "Issuer")
[Title of Issue]
Security Code: [ ] ISIN No. [ ] (the "Notes")
To: The Central Depository (Pte) Limited
This is to certify that as of the date hereof, and except as set out below,
the Notes held by you for our account (1) are owned by person(s) that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States federal income taxation regardless of its source ("United States
person(s)"), (2) are owned by United States person(s) that (a) are foreign
branches of United States financial institutions (as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v) ("financial institutions")) purchasing for
their own account or for resale, or (b) acquired the Notes through foreign
branches of United States financial institutions and who hold the Notes through
such United States financial institutions on the date hereof (and in either case
(a) or (b), each such United States financial institution hereby agrees, on its
own behalf or through its agent, that you may advise the Issuer or the Issuer's
agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (3) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in addition if
the owner of the Notes is a United States or foreign financial institution
described in clause (3) above (whether or not also described in clause (1) or
(2)) this is to further certify that such financial institution has not acquired
the Notes for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
If the Notes are of the category contemplated in Section 230.903(b)(3) of
Regulation S under the United States Securities Act of 1933, as amended (the
"Act") then this is also to certify that, except as set forth below (i) in the
case of debt securities, the Notes are beneficially owned by (a) non-U.S.
person(s) or (b) U.S. person(s) who purchased the Notes in transactions which
did not require registration under the Act; or (ii) in the case of equity
securities, the Notes are owned by (aa) non-U.S. person(s) (and such person(s)
are not acquiring the Notes for the account or benefit of U.S. person(s)) or
(bb) U.S. person(s) who purchased the Notes in a transaction which did not
require registration under the Act.
If this certification is being delivered in connection with the exercise of
warrants pursuant to Section 230.903(b)(5) of Regulation S under the Act, then
this is further to certify that, except as set forth below, the Notes are being
exercised by and on behalf of non-U.S.
87
person(s). As used in this paragraph the term "U.S. person" has the meaning
given to it by Regulation S under the Act.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia) and its "possessions"
including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to that
date on which you intend to submit your certificate relating to the Notes held
by you for our account in accordance with your documented procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certificate applies as of such
date.
This certificate excepts and does not relate to [ ] principal
amount of such interest in the Notes in respect of which we are not able to
certify and as to which we understand exchange for an equivalent interest in the
Permanent Global Note (or, if relevant, exercise of any rights or collection of
any interest) cannot be made until we do so certify.
We understand that this certificate is required in connection with certain
tax laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certificate is or would be relevant, we
irrevocably authorise you to produce this certificate to any interested party in
such proceedings.
Dated:
----------------------------------
By:
--------------------------------------
[Name of person giving certificate]
As, or as agent for, the beneficial owner(s) of
the above Notes to which this certificate relates.](1)
88
S C H E D U L E 3
FORM OF PERMANENT GLOBAL NOTE
ST ASSEMBLY TEST SERVICES LTD
(Incorporated with limited liability in Singapore)
S$500,000,000 MULTICURRENCY MEDIUM TERM NOTE PROGRAMME
Series No. [ ]
Tranche No. [ ]
[Title of Issue]
PERMANENT GLOBAL NOTE
This is a Permanent Global Note in respect of an issue of notes ("Notes"),
having an aggregate principal amount equal to the Denomination Amount stated
below constituted by a Trust Deed (the "Trust Deed") dated 10th January, 2002
made between ST Assembly Test Services Ltd (the "Issuer") and British and
Malayan Trustees Limited, as trustee for the holders of the Notes.
Authority to Issue
The issue of the Notes was authorised by resolutions of the Board of Directors
of the Issuer passed on 25th September, 2001.
Interpretation and Definitions
References in this Permanent Global Note to the "Conditions" are to the Terms
and Conditions applicable to the Notes (which are in the form set out in Part II
of Schedule 1 to the Trust Deed) as such form is supplemented and/or modified
and/or superseded by the provisions of this Permanent Global Note. Other
capitalised terms used in this Permanent Global Note shall have the meanings
given to them in the Conditions or the Trust Deed.
Promise to Pay
The Issuer for value received hereby unconditionally promises to pay to the
bearer of this Permanent Global Note on the Maturity Date stated below (if this
Permanent Global Note is stated to be a Fixed Rate Note or Hybrid Note) or on
the Interest Payment Date falling in the Redemption Month stated below (if this
Permanent Global Note is stated to be a Floating Rate Note, Variable Rate Note
or Hybrid Note) or on such earlier date as the Redemption Amount may become
repayable in accordance with the Conditions upon presentation and surrender of
this Permanent Global Note the Redemption Amount in respect of the aggregate
principal amount of Notes represented by this Permanent Global Note and to
89
(unless this Permanent Global Note does not bear interest) pay interest in
respect of such aggregate principal amount of Notes from the Interest
Commencement Date stated below at the Interest Rate stated below (if this
Permanent Global Note is stated below to be a Fixed Rate Note) or at the rates
determined in accordance with Condition 4(II) (if this Permanent Global Note is
stated to be a Floating Rate Note or a Variable Rate Note) or at the Interest
Rate stated below and at the rates of interest determined in accordance with
Condition 4(III) (if it is stated to be a Hybrid Note) in arrear on the dates
for payment provided for in the Conditions together with such other amounts (if
any) as may be payable, all subject to and in accordance with the Conditions and
the provisions of the Trust Deed.
The aggregate principal amount from time to time of this Permanent Global Note
shall be an amount equal to the aggregate principal amount of the Notes as shall
be shown by the latest entry in the relevant column of the Principal Schedule
hereto, which shall be completed by or on behalf of the Issuing and Paying Agent
upon [(i) the issue of Notes initially represented hereby,](1) [(i) the exchange
of the whole or a part of the Temporary Global Note initially representing the
Notes for a corresponding interest herein,](2) (ii) the exchange in whole (but
not in part) of this Permanent Global Note for Definitive Notes (as defined
herein), (iii) the redemption, purchase or cancellation of Notes represented
hereby, (iv) payments of principal in respect of this Permanent Global Note
and/or [(v) exchange for Direct Rights under the Deed of Covenant](3), all as
described below.
[So long as Notes are represented by this Permanent Global Note and this
Permanent Global Note is held by The Central Depository (Pte) Limited (the
"Depository"), transfers of beneficial interests in this Permanent Global Note
will be effected only through records maintained by the Depository.](3)
Exchange
This Permanent Global Note is exchangeable, on or after the Exchange Date, in
whole (but not in part), free of charge to the holder, for bearer Notes in
definitive form ("Definitive Notes") if this Permanent Global Note is held by or
on behalf of the Depository and (i) an event of default (as defined in the
Conditions) has occurred and is continuing, (ii) the Depository has closed for
business for a continuous period of 14 days (other than by reason of holiday,
statutory or otherwise), (iii) the Depository has announced an intention
permanently to cease business and no alternative clearing system is available or
(iv) the Depository has notified the Issuer that it is unable or unwilling to
act as depository for the Notes and to continue performing its duties set out in
the Depository Agreement dated 10th January, 2002 made between the Issuer and
the Depository and no alternative clearing system is available. In any such
case, this Permanent Global Note will be exchanged, on or after the Exchange
Date (as defined herein) at the Issuing and Paying Agent's specified office for
Definitive Notes in the Denomination Amount stated below, having attached to
them all Coupons in respect of interest which has not already been paid on this
Permanent Global Note and substantially in the form set out in Part I of
Schedule 1 to the Trust Deed, and the Issuing and Paying Agent shall deliver in
exchange for this Permanent Global Note, Definitive Notes in an aggregate
principal amount equal to the principal amount of this Permanent Global Note.
"Exchange Date" means a day falling not less than 60 days after the day on which
the notice in writing has been given to the Issuing and Paying Agent by the
Depository acting on behalf of an Accountholder (as defined herein) requesting
exchange and on which commercial banks are open for business in Singapore.
90
Upon exchange (or payment) in whole this Permanent Global Note shall be deemed
fully paid and shall be cancelled by the Issuing and Paying Agent and, unless
otherwise instructed by the Issuer, the cancelled Permanent Global Note shall be
returned to the Issuer.
Benefit of Conditions
Except as otherwise specified herein, this Permanent Global Note is subject to
the Conditions and the provisions of the Trust Deed and, until the whole of this
Permanent Global Note is exchanged for Definitive Notes, the holder of this
Permanent Global Note shall in all respects be entitled to the same benefits as
if it were the holder of Definitive Notes for which it may be exchanged as if
such Definitive Notes had been issued on the Issue Date, except that the holder
of this Permanent Global Note shall not be entitled to receive any payment
hereon except as provided herein.
Payments
No person shall be entitled to receive any payment in respect of the Notes
represented by this Permanent Global Note that falls due on or after the
Exchange Date unless, upon due presentation of this Permanent Global Note for
exchange, delivery of Definitive Notes is improperly withheld or refused by or
on behalf of the Issuer or the Issuer does not perform or comply with any one or
more of what are expressed to be its obligations under any Definitive Notes.
Payments in respect of this Permanent Global Note shall be made to its holder
against presentation and (if no further payment falls to be made on it)
surrender of it and at the specified office of the Issuing and Paying Agent or
of any paying agent provided for in the Conditions. A record of each such
payment shall be endorsed on the Principal or Payment Schedule hereto, as
appropriate, by the Issuing and Paying Agent, which endorsement shall (until the
contrary is proved) be prima facie evidence that the payment in question has
been made.
[Accountholders
In accordance with the requirements of the Depository, for so long as any of the
Notes is represented by this Permanent Global Note and this Permanent Global
Note is held by the Depository, each person who is for the time being shown in
the records of the Depository as the holder of a particular principal amount of
such Notes (each an "Accountholder") shall be deemed to be (and shall be treated
by the Issuer, the Issuing and Paying Agent, all other agents of the Issuer and
the Trustee as) the holder of that principal amount of Notes for all purposes
(including, without limitation, for the purpose of giving notices under the
Conditions) other than with respect to the payment of principal, interest and
other amounts in respect of the Notes, the right to which shall be vested, as
against the Issuer, solely in the bearer of this Permanent Global Note, in
accordance with and subject to its terms. Each Accountholder must look solely to
the Depository for its share of each payment made to the bearer of this
Permanent Global Note. Any certificate or other document issued by the
Depository as to
91
the principal amount of Notes standing to the account of any Accountholder shall
be conclusive and binding for all purposes save in the case of manifest error.
The Issuer covenants in favour of the Trustee and each Accountholder that it
will make all payments in respect of the principal amount of Notes for the time
being shown in the records of the Depository as being held by the Accountholder
and represented by this Permanent Global Note to the bearer of this Permanent
Global Note and acknowledges the rights of each Accountholder under the Deed of
Covenant (the "Deed of Covenant", which expression shall include any amendments
and/or supplements thereto and/or restatements thereof made from time to time)
dated 10th January, 2002 executed by the Issuer in relation to the Notes.](3)
Prescription
Claims in respect of principal and interest (as each is defined in the
Conditions) in respect of this Permanent Global Note shall become void unless it
is presented for payment within a period of five years from the appropriate
Relevant Date.
Meetings
The holder of this Permanent Global Note shall (unless this Permanent Global
Note represents only one Note) be treated as two persons for the purposes of any
quorum requirements of a meeting of Noteholders and, at any such meeting, as
having one vote in respect of each principal amount of Notes equal to the
minimum Denomination Amount of the Notes for which this Permanent Global Note
may be exchanged.
Cancellation
Cancellation of any Note represented by this Permanent Global Note that is
required by the Conditions to be cancelled shall be effected by reduction in the
principal amount of this Permanent Global Note representing such Note on its
presentation to or to the order of the Issuing and Paying Agent for endorsement
in the Principal Schedule hereto, whereupon the principal amount hereof shall be
reduced for all purposes by the amount so cancelled and endorsed.
Direct Rights
If there shall occur any event of default entitling the Trustee to declare all
of the Notes to be due and payable, as provided in the Conditions, the Trustee
may exercise the right to declare Notes represented by this Permanent Global
Note due and payable in the circumstances described in the Conditions by stating
in the notice given to the Issuing and Paying Agent and the Issuer (the "default
notice") the principal amount of Notes (which may be less than the outstanding
principal amount of this Permanent Global Note) which is being declared due and
payable.
Following the giving of the default notice, the holder of the Notes represented
by this Permanent Global Note may (subject as provided below) elect that direct
rights ("Direct Rights") under the provisions of the Deed of Covenant shall come
into effect in respect of a principal amount of Notes up to the aggregate
principal amount in respect to which such default notice has been given. Such
election shall be made by notice to the Issuing and
92
Paying Agent and presentation of this Permanent Global Note to or to the order
of the Issuing and Paying Agent for reduction of the principal amount of Notes
represented by this Permanent Global Note by such amount as may be stated in
such notice and by endorsement of the Principal Schedule hereto of the principal
amount of Notes in respect of which Direct Rights have arisen under the Deed of
Covenant. Upon each such notice being given, this Permanent Global Note shall
become void to the extent of the principal amount stated in such notice, save to
the extent that the appropriate Direct Rights shall fail to take effect. No such
election may however be made on or before the Exchange Date unless the holder
elects in such notice that the exchange for such Notes shall no longer take
place.
Purchase
Notes may only be purchased by the Issuer or any of its subsidiaries if they are
purchased together with the right to receive all future payments of interest
thereon.
Issuer's Options
Any option of the Issuer provided for in the Conditions shall be exercised by
the Issuer giving notice to the Noteholders within the time limits set out in
and containing the information required by the Conditions, except that the
notice shall not be required to contain the serial numbers of Notes drawn in the
case of a partial exercise of an option and accordingly no drawing of Notes
shall be required.
Noteholders' Options
Any option of the Noteholders provided for in the Conditions may be exercised by
the holder of this Permanent Global Note giving notice to the Issuing and Paying
Agent within the time limits relating to the deposit of Notes with the Issuing
and Paying Agent set out in the Conditions substantially in the form of the
notice available from the Issuing and Paying Agent, except that the notice shall
not be required to contain the certificate numbers of the Notes in respect of
which the option has been exercised, and stating the principal amount of Notes
in respect of which the option is exercised and at the same time presenting this
Permanent Global Note to the Issuing and Paying Agent for notation accordingly
in the Option Schedule hereto.
Notices
Notices required to be given in respect of the Notes represented by this
Permanent Global Note may be given by their being delivered (so long as this
Permanent Global Note is held on behalf of the Depository) to the Depository, or
otherwise to the holder of this Permanent Global Note rather than by publication
as required by the Conditions, except that so long as the Notes are listed on
Singapore Exchange Securities Trading Limited and the rules of that exchange so
require, notices in respect of such Notes shall also be published in a daily
newspaper in the English language having general circulation in Singapore.
Others
No provision of this Permanent Global Note shall alter or impair the obligation
of the Issuer to pay the principal and premium of and interest on the Notes when
due in accordance with the Conditions.
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This Permanent Global Note shall not become valid or obligatory for any purpose
unless and until the Certificate of Authentication hereon has been signed by or
on behalf of Citicorp Investment Bank (Singapore) Limited as Issuing and Paying
Agent.
This Permanent Global Note shall be governed by, and construed in accordance
with, the laws of Singapore.
IN WITNESS whereof the Issuer has caused this Permanent Global Note to be
executed under its Common Seal and signed manually on its behalf by two
Directors or a Director and the Secretary of the Issuer.
ST ASSEMBLY TEST SERVICES LTD
-----------------------------------
Director
-----------------------------------
Director/Secretary
Dated as of the Issue Date specified above.
CERTIFICATE OF AUTHENTICATION
This Permanent Global Note is authenticated by or on behalf of the Issuing and
Paying Agent, Citicorp Investment Bank (Singapore) Limited.
By:
------------------------------------------
Duly authorised signatory
(Without recourse, warranty or liability.)
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ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
--------------------------------------------------------------------------------
Notes:-
(1) Insert where Notes are to be initially represented on issue by a Permanent
Global Note.
94
(2) Insert where Notes are to be initially represented on issue by a Temporary
Global Note.
(3) Insert where Permanent Global Note is to be deposited with the Depository.
95
PRINCIPAL SCHEDULE
Part I
Principal Amount of Notes Represented by this Permanent Global Note
The following [(i) issue of Notes initially represented by this Permanent Global
Note,](1) [(i) exchanges of interests in the Temporary Global Note for interests
in this Permanent Global Note,](2) (ii) exchange in whole (but not in part) of
this Permanent Global Note for Definitive Notes, (iii) redemption, purchase or
cancellation of interests in this Permanent Global Note, (iv) payments of
principal in respect of this Permanent Global Note and/or (v) exchange for
Direct Rights under the Deed of Covenant have been made, resulting in the
principal amount of this Permanent Global Note specified in the latest entry in
the fourth column:-
REASON FOR
INCREASE/DECREASE IN
PRINCIPAL AMOUNT OF
AMOUNT OF INCREASE/ THIS PERMANENT GLOBAL PRINCIPAL AMOUNT OF
DECREASE IN NOTE (ISSUE, THIS PERMANENT NOTATION MADE BY
PRINCIPAL AMOUNT EXCHANGE, GLOBAL NOTE OR ON BEHALF OF
OF THIS PERMANENT CANCELLATION OR FOLLOWING SUCH THE ISSUING AND
DATE GLOBAL NOTE DECREASE PAYMENT) INCREASE/DECREASE PAYING AGENT
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Part II
Direct Rights
The principal amount of Notes in respect of which Direct Rights have arisen
under the Deed of Covenant is shown by the latest entry in the third column
below:-
ADDITIONAL PRINCIPAL AGGREGATE PRINCIPAL
AMOUNT OF NOTES IN AMOUNT SUBJECT TO NOTATION BY OR ON
RESPECT OF WHICH DIRECT RIGHTS BEHALF OF THE
DIRECT RIGHTS HAVE FOLLOWING SUCH ISSUING AND
DATE BEEN ELECTED ELECTION PAYING AGENT
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INTEREST SCHEDULE
Payments of Interest
The following payments of interest in respect of this Permanent Global Note have
been made:-
NOTATION MADE
BY OR ON
BEHALF OF THE
DUE DATE OF AMOUNT OF INTEREST AMOUNT OF ISSUING AND
PAYMENT DATE OF PAYMENT DUE AND PAYABLE INTEREST PAID PAYING AGENT
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OPTION SCHEDULE
Exercise of Noteholders' Option
The following exercises of the option of the Noteholders provided for in the
Conditions have been made in respect of the stated principal amount of this
Permanent Global Note:-
PRINCIPAL AMOUNT OF
THIS PERMANENT GLOBAL
NOTE IN RESPECT OF DATE ON WHICH NOTATION MADE BY OR ON
DATE OF WHICH OPTION IS EXERCISE OF SUCH BEHALF OF THE ISSUING
EXERCISE EXERCISED OPTION IS EFFECTIVE AND PAYING AGENT
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99
THE SCHEDULE
[Insert the provisions of the relevant Pricing Supplement
that relate to the Conditions or the Global Notes as the Schedule]
100
S C H E D U L E 4
PROVISIONS FOR MEETINGS OF NOTEHOLDERS
Except as otherwise indicated, these provisions are applicable separately to
each Series of Notes.
INTERPRETATION
1. In this Schedule:-
(a) references to a meeting are to a meeting of Noteholders of a
single Series of Notes and include, unless the context otherwise
requires, any adjournment;
(b) references to "Notes" and "Noteholders" are only to the Notes of
the Series in respect of which a meeting has been, or is to be,
called and to the holders of those Notes, respectively;
(c) "agent" means a holder of a voting certificate or a proxy for a
Noteholder;
(d) "block voting instruction" means an instruction issued in
accordance with paragraphs 8 to 14;
(e) "Extraordinary Resolution" means a resolution passed at a meeting
duly convened and held in accordance with this Trust Deed by a
majority of at least 75 per cent. of the votes cast;
(f) "voting certificate" means a certificate issued in accordance
with paragraphs 5, 6, 7 and 14; and
(g) references to persons representing a proportion of the Notes are
to Noteholders or agents holding or representing in the aggregate
at least that proportion in principal amount of the Notes for the
time being outstanding.
POWERS OF MEETINGS
2. A meeting shall, subject to the Conditions and without prejudice to
any powers conferred on other persons by this Trust Deed, have power by
Extraordinary Resolution:-
(a) to sanction any proposal by the Issuer or the Trustee for any
modification, abrogation, variation or compromise of, or
arrangement in respect of, the rights of the Noteholders and/or
the Couponholders against the Issuer, whether or not those rights
arise under this Trust Deed, the Notes or the Coupons or
otherwise;
101
(b) to sanction the exchange or substitution for the Notes of, or the
conversion of the Notes into, shares, bonds or other obligations
or securities of the Issuer or any other entity;
(c) to assent to any modification of this Trust Deed, the other Issue
Documents, the Notes or the Coupons proposed by the Issuer or the
Trustee;
(d) to authorise the Trustee or any other person to concur in and do
anything necessary to carry out and give effect to an
Extraordinary Resolution;
(e) to give any authority, direction or sanction which under this
Trust Deed or the Notes is required to be given by Extraordinary
Resolution;
(f) to appoint any persons (whether Noteholders or not) as a
committee or committees to represent the Noteholders' interests
and to confer on them any powers or discretions which the
Noteholders could themselves exercise by Extraordinary
Resolution;
(g) to approve the substitution of any entity for the Issuer (or any
previous substitute) as principal debtor under this Trust Deed,
the Notes or the Coupons; and
(h) to approve a person proposed by the Issuer to be appointed as a
new Trustee under this Trust Deed and to remove any Trustee for
the time being thereof,
provided that the special quorum provisions in paragraph 18 shall apply to any
Extraordinary Resolution (a "special quorum resolution") for the purposes of
sub-paragraph (b) or (g), any of the proposals listed in Condition 11 or any
amendment to this proviso.
CONVENING A MEETING
3. Each of the Issuer and the Trustee may at any time convene a meeting.
If the Trustee receives a written request by Noteholders holding at least
one-tenth in principal amount of the Notes of any Series for the time being
outstanding and is indemnified to its satisfaction against all costs and
expenses, the Trustee shall convene a meeting of the Noteholders of that Series.
Every meeting shall be held at a time and place agreed between the Issuer and
the Trustee.
4. At least 21 days' notice (exclusive of the day on which the notice is
given and of the day of the meeting) shall be given to the Noteholders. A copy
of the notice shall be given by the party convening the meeting to the other
parties. The notice shall specify the day, time and place of meeting and the
nature of the resolutions to be proposed and shall explain how Noteholders may
appoint proxies, obtain voting certificates and use block voting instructions
and the details of the time limits applicable.
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ARRANGEMENTS FOR VOTING
5. If a holder of a Note wishes to obtain a voting certificate in respect
of it for a meeting, he must deposit it for that purpose at least 48 hours
before the time fixed for the meeting with the Issuing and Paying Agent or to
the order of the Issuing and Paying Agent with a bank or other depository
nominated by the Issuing and Paying Agent for the purpose. The Issuing and
Paying Agent shall then issue a voting certificate in respect of it.
6. A voting certificate shall:-
(a) be a document in the English language;
(b) be dated;
(c) specify the meeting concerned and the serial numbers of the Notes
deposited; and
(d) entitle, and state that it entitles, its bearer to attend and
vote at that meeting in respect of those Notes.
7. Once the Issuing and Paying Agent has issued a voting certificate for
a meeting in respect of a Note, it shall not release the Note until either:-
(a) the meeting has been concluded; or
(b) the voting certificate has been surrendered to the Issuing and
Paying Agent.
8. If a holder of a Note wishes the votes attributable to it to be
included in a block voting instruction for a meeting, then, at least 48 hours
before the time fixed for the meeting, (a) he must deposit the Note for that
purpose with the Issuing and Paying Agent or to the order of the Issuing and
Paying Agent with a bank or other depository nominated by the Issuing and Paying
Agent for the purpose and (b) he or a duly authorised person on his behalf must
direct the Issuing and Paying Agent how those votes are to be cast. The Issuing
and Paying Agent shall issue a block voting instruction in respect of the votes
attributable to all Notes so deposited.
9. A block voting instruction shall:-
(a) be a document in the English language;
(b) be dated;
(c) specify the meeting concerned;
(d) list the total number and serial numbers of the Notes deposited,
distinguishing with regard to each resolution between those
voting for and those voting against it;
(e) certify that such list is in accordance with Notes deposited and
directions received as provided in paragraphs 8, 11 and 14; and
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(f) appoint a named person (a "proxy") to vote at that meeting in
respect of those Notes and in accordance with that list.
A proxy need not be a Noteholder.
10. Once the Issuing and Paying Agent has issued a block voting
instruction for a meeting in respect of the votes attributable to any Notes:-
(a) it shall not release the Notes, except as provided in paragraph
11, until the meeting has been concluded; and
(b) the directions to which it gives effect may not be revoked or
altered during the 48 hours before the time fixed for the
meeting.
11. If the receipt for a Note deposited with the Issuing and Paying Agent
in accordance with paragraph 8 is surrendered to the Issuing and Paying Agent at
least 48 hours before the time fixed for the meeting, the Issuing and Paying
Agent shall release the Note and exclude the votes attributable to it from the
block voting instruction.
12. Each block voting instruction shall be deposited at least 24 hours
before the time fixed for the meeting at the registered office of the Issuer or
such other place as the Trustee shall designate or approve, and in default it
shall not be valid unless the chairman of the meeting decides otherwise before
the meeting proceeds to business. If the Trustee requires, a notarially
certified copy of each block voting instruction shall be produced by the proxy
at the meeting but the Trustee need not investigate or be concerned with the
validity of the proxy's appointment.
13. A vote cast in accordance with a block voting instruction shall be
valid even if it or any of the Noteholders' instructions pursuant to which it
was executed has previously been revoked or amended, unless written intimation
of such revocation or amendment is received from the Issuing and Paying Agent by
the Issuer at its specified office (or such other place as may have been
specified by the Issuer for the purpose) or by the chairman of the meeting in
each case at least 24 hours before the time fixed for the meeting.
14. No Note may be deposited with or to the order of the Issuing and
Paying Agent at the same time for the purposes of both paragraph 5 and paragraph
8 for the same meeting.
CHAIRMAN
15. The chairman of a meeting shall be such person as the Trustee may
nominate in writing, but if no such nomination is made or if the person
nominated is not present within 15 minutes after the time fixed for the meeting
the Noteholders or agents present shall choose one of their number to be
chairman, failing which the Issuer may appoint a chairman. The chairman need not
be a Noteholder or agent. The chairman of an adjourned meeting need not be the
same person as the chairman of the original meeting.
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ATTENDANCE
16. The following may attend and speak at a meeting:-
(a) Noteholders and agents;
(b) the chairman;
(c) the Issuer and the Trustee (through their respective
representatives) and their respective financial and legal
advisers; and
(d) the Dealers and their advisers.
No one else may attend or speak.
QUORUM AND ADJOURNMENT
17. No business (except choosing a chairman) shall be transacted at a
meeting unless a quorum is present at the commencement of business. If a quorum
is not present within 15 minutes from the time initially fixed for the meeting,
it shall, if convened on the requisition of Noteholders, be dissolved. In any
other case it shall be adjourned until such date, not less than 14 days nor more
than 42 days later, and time and place as the chairman may decide. If a quorum
is not present within 15 minutes from the time fixed for a meeting so adjourned,
the meeting shall be dissolved.
18. Two or more Noteholders or agents present in person shall be a
quorum:-
(a) in the cases marked "No minimum proportion" in the table below,
whatever the proportion of the Notes which they represent; and
(b) in any other case, only if they represent the proportion of the
Notes shown by the table below.
------------------------------------------------------------------------------------------------------
COLUMN 1 COLUMN 2 COLUMN 3
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Purpose of Meeting Any meeting except Meeting previously
one referred to adjourned through
in column 3 want of a quorum
-------------------------------------------------------------------
Required proportion Required proportion
------------------------------------------------------------------------------------------------------
To pass a 75 per cent. 25 per cent.
special quorum resolution
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To pass any other A clear majority No minimum proportion
Extraordinary Resolution
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Any other purpose 10 per cent. No minimum proportion
------------------------------------------------------------------------------------------------------
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19. The chairman may with the consent of (and shall if directed by) a
meeting adjourn the meeting from time to time and from place to place. Only
business which could have been transacted at the original meeting may be
transacted at a meeting adjourned in accordance with this paragraph or
paragraph 17.
20. At least 10 days' notice of a meeting adjourned through want of a
quorum shall be given in the same manner as for an original meeting and that
notice shall state the quorum required at the adjourned meeting. No notice need,
however, otherwise be given of an adjourned meeting.
VOTING
21. Each question submitted to a meeting shall be decided by a show of
hands unless a poll is (before, or on the declaration of the result of, the show
of hands) demanded by the chairman, the Issuer, the Trustee or one or more
persons representing two per cent. of the Notes.
22. Unless a poll is demanded a declaration by the chairman that a
resolution has or has not been passed shall be conclusive evidence of the fact
without proof of the number or proportion of the votes cast in favour of or
against it.
23. If a poll is demanded, it shall be taken in such manner and (subject
as provided below) either at once or after such adjournment as the chairman
directs. The result of the poll shall be deemed to be the resolution of the
meeting at which it was demanded as at the date it was taken. A demand for a
poll shall not prevent the meeting continuing for the transaction of business
other than the question on which it has been demanded.
24. A poll demanded on the election of a chairman or on a question of
adjournment shall be taken at once.
25. On a show of hands every person who is present in person and who
produces a Note or a voting certificate or is a proxy has one vote. On a poll
every such person has one vote in respect of each principal amount equal to the
minimum denomination of such Series of Notes so produced or represented by the
voting certificate so produced or for which he is a proxy. Without prejudice to
the obligations of proxies, a person entitled to more than one vote need not use
them all or cast them all in the same way.
26. In case of equality of votes the chairman shall both on a show of
hands and on a poll have a casting vote in addition to any other votes which he
may have.
EFFECT AND PUBLICATION OF AN EXTRAORDINARY RESOLUTION
27. An Extraordinary Resolution shall be binding on all the Noteholders,
whether or not present at the meeting, and on all the Couponholders and each of
them shall be bound to give effect to it accordingly. The passing of such a
resolution shall be conclusive evidence that the circumstances justify its being
passed. The Issuer shall give
106
notice of the passing of an Extraordinary Resolution to Noteholders within 14
days but failure to do so shall not invalidate the resolution.
MINUTES
28. Minutes shall be made of all resolutions and proceedings at every
meeting and duly entered in the books to be from time to time provided for that
purpose by the Issuer or the Trustee and, if purporting to be signed by the
chairman of that meeting or of the next succeeding meeting, shall be conclusive
evidence of the matters in them. Until the contrary is proved every meeting for
which minutes have been so made and signed shall be deemed to have been duly
convened and held and all resolutions passed or proceedings transacted at it to
have been duly passed and transacted.
29. The holder of a Global Note shall (unless such Global Note represents
only one Note) be treated as two persons for the purposes of any quorum
requirements of a meeting of Noteholders.
30. A resolution in writing of which notice has been given to all
Noteholders in accordance with the Conditions and signed by or on behalf of the
holders of not less than 90 per cent. in principal amount of the Notes who for
the time being are entitled to receive notice of a meeting in accordance with
the provisions herein contained shall for all purposes be as valid and effectual
as an Extraordinary Resolution passed at a meeting of such Noteholders duly
convened and held in accordance with the provisions herein contained. Such
resolution in writing may be contained in one document or in several documents
in like form each signed by or on behalf of one or more of the Noteholders.
SEPARATE SERIES
31. The foregoing provisions of this Schedule shall have effect subject to
the following provisions:-
(a) meetings of holders of the Notes of separate Series will normally
be held separately;
(b) a resolution that affects one Series alone shall be deemed to
have been duly passed if passed at a separate meeting of the
holders of the Notes of the Series concerned;
(c) a resolution that affects the holders of the Notes of more than
one Series but does not give rise to a conflict of interest
between the holders of the Notes of the different Series
concerned shall be deemed to have been duly passed if passed at a
single meeting of the holders of the Notes of the relevant
Series; and
(d) a resolution that affects the holders of the Notes of more than
one Series and gives or may give rise to a conflict of interest
between the holders of the Notes of the different Series
concerned shall be deemed to have been duly passed only if it
shall be duly passed at separate meetings of the holders of the
Notes of the relevant Series.
107
FURTHER REGULATIONS
32. Subject to all other provisions contained in this Trust Deed, the
Trustee may without the consent of the Noteholders prescribe such further
regulations regarding the holding of meetings of Noteholders and attendance and
voting thereat as the Trustee may in its sole discretion determine, including
particularly (but without prejudice to the generality of the foregoing) such
regulations and requirements as the Trustee thinks reasonable:-
(a) so as to satisfy itself that persons are in fact Noteholders who
purport to requisition a meeting in accordance with paragraph 3
above or who purport to make any requisition to the Trustee in
accordance with this Trust Deed; and
(b) in connection with the provisions of paragraph 16 above so as to
satisfy itself that persons who purport to attend or vote at any
meeting of the Noteholders are entitled to do so in accordance
with this Trust Deed.
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I N W I T N E S S W H E R E O F this Trust Deed has been executed as
of the date stated at the beginning.
The Issuer
The Common Seal of )
ST ASSEMBLY TEST SERVICES LTD ) COMMON SEAL AFFIXED
was hereunto affixed )
in the presence of:- )
sd. XXXXX X XXXXXXX Director
------------------------------------
sd. LOOI XXX XXX Secretary
------------------------------------
I, XXXXX XXXX YUN , an Advocate and Solicitor
of the Supreme Court in the Republic of Singapore practising in Singapore hereby
certify that on the 10th day of January , 2002 the Common
Seal of ST Assembly Test Services Ltd was duly affixed to this Trust Deed at
Singapore in our presence in accordance with the Memorandum and Articles of
Association of ST Assembly Test Services Ltd (which Memorandum and Articles of
Association have been produced and shown to me).
Witness my hand this 10th January, 2002. sd. XXXXX XXXX YUN
The Trustee
The Common Seal of )
BRITISH AND MALAYAN TRUSTEES LIMITED ) COMMON SEAL AFFIXED
was hereunto affixed )
in the presence of:- )
sd. XXXXX XXX XXXX-XXXX Director
-------------------------------------------
sd. XXXX XXXX General Manager
-------------------------------------------
109
