EXHIBIT 99.5
EXCHANGE AGENCY AGREEMENT
, 2000
The Chase Manhattan Bank
Capital Markets Fiduciary Services
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Corporate Trust Department
Ladies and Gentlemen:
ASAT (Finance) LLC ("ASAT Finance"), a Delaware limited liability company,
has made an offer (the "Exchange Offer") to exchange for ASAT Finance's
outstanding unregistered 12.5% Senior Notes due 2006 (the "Original Notes")
also guaranteed by the Guarantors its registered 12.5% Senior Notes due 2006
(the "Exchange Notes") guaranteed by ASAT Holdings Limited, ASAT Limited and
its subsidiaries (collectively, the "Guarantors"). The terms and conditions of
the Exchange Offer as currently contemplated are set forth in a prospectus
dated , 2000 (the "Prospectus") distributed to all record holders of the
Original Notes. The Original Notes and the Exchange Notes are collectively
referred to herein as the "Notes."
ASAT Finance and Guarantors hereby appoint The Chase Manhattan Bank to act
as exchange agent and information agent (in such capacities, the "Exchange
Agent") in connection with the Exchange Offer. References hereinafter to "you"
shall refer to The Chase Manhattan Bank.
The Exchange Offer is expected to be commenced on or about , 2000. The
Letter of Transmittal accompanying the Prospectus (or in the case of book-
entry securities, the Automated Tender Offer Program ("ATOP") of the
Depository Trust Company ("DTC")) is to be used by the holders of the Original
Notes to accept the Exchange Offer, and contains instructions with respect to
the delivery of certificates for Original Notes tendered.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on ,
2000 or on such later date or time to which ASAT Finance may extend the
Exchange Offer (the "Expiration Date"). Subject to the terms and conditions
set forth in the Prospectus, ASAT Finance expressly reserves the right to
extend the Exchange Offer at any time and from time to time by giving oral
(promptly confirmed in writing) or written notice to you on the business day
following the previously scheduled Expiration Date.
In carrying out your duties as Exchange Agent, you are to act in accordance
with the following instructions:
1. You will perform such duties and only such duties as are specifically
set forth in the section of the Prospectus captioned "The Exchange
Offer," in the "Letter of Transmittal" accompanying the Prospectus or
herein; provided, however, that in no way will your general duty to act
in good faith be discharged by the foregoing.
2. You will establish an account with respect to the Original Notes at DTC
for purposes of the Exchange Offer promptly after the date of the
Prospectus, and any financial institution that is a participant in DTC's
book entry transfer system may make book-entry delivery of Original
Notes by causing DTC to transfer such Original Notes into The Chase
Manhattan Bank's account in accordance with DTC's procedure for such
transfer.
1
3. Upon written instruction from ASAT Finance, you are to arrange for the
mailing of the Prospectus, the Letters of Transmittal and other
documents related to the Exchange Offer, copies of which will be
furnished to you by ASAT Finance, to registered holders of Original
Notes and such other addressees as ASAT Finance may specify in writing
in accordance to such instruction.
4. You are to examine each of the Letters of Transmittal and certificates
for Original Notes and any other documents delivered or mailed to you by
or for holders of the Original Notes, and any book-entry confirmations
received by you with respect to the Original Notes, to ascertain
whether: (i) the Letters of Transmittal and any such other documents are
duly executed and properly completed in accordance with instructions set
forth therein and that such book-entry confirmations are in due and
proper form and contain the information required to be set forth therein
and (ii) the Original Notes have otherwise been properly tendered. In
each case where the Letter of Transmittal or any other document has been
improperly completed or executed or where book-entry confirmations are
not in due and proper form or omit certain information, or any of the
certificates for Original Notes are not in proper form for transfer or
some other irregularity in connection with the acceptance of the
Original Notes exists, you will endeavor to inform the presenters of the
need for fulfillment of all requirements and to take any other action as
may be necessary or advisable to cause such irregularity to be
corrected.
5. With the approval of a Manager of ASAT Finance, or counsel to ASAT
Finance or any other party designated by any Manager (such approval, if
given orally, to be confirmed in writing), you are authorized to waive
any irregularities in connection with any tender of Original Notes
pursuant to the Exchange Offer.
6. Tenders of Original Notes may be made only as set forth in the Letter of
Transmittal and in the section of the Prospectus captioned "The Exchange
Offer-Procedures for Tendering," and Original Notes shall be considered
properly tendered to you only when tendered in accordance with the
procedures set forth therein. Notwithstanding the foregoing, Original
Notes that a Manager of ASAT Finance shall approve as having been
properly tendered shall be considered to be properly tendered (such
approval, if given orally, shall be promptly confirmed in writing).
7. You shall advise ASAT Finance with respect to any Original Notes
received subsequent to the Expiration Date and accept its instructions
with respect to disposition of such Original Notes.
8. You shall accept tenders:
(a) in cases where the Original Notes are registered in two or more
names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter of
Transmittal) is acting in a fiduciary or a representative capacity
only when proper evidence of his or her authority so to act is
submitted; and
(c) from persons other than the registered holder of Original Notes
provided that customary transfer requirements, including any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Original Notes where so indicated
and as permitted in the Letter of Transmittal and deliver certificates
for Original Notes to the transfer agent for split-up and return any
untendered Original Notes to the holder (or such other person as may be
designated in the Letter of Transmittal) as promptly as practicable
after expiration or termination of the Exchange Offer.
9. ASAT Finance will exchange Original Notes duly tendered for Exchange
Notes on the terms and subject to the conditions set forth in the
Prospectus and the Letter of Transmittal. Delivery of Exchange Notes
will be made on behalf of ASAT Finance by you at the rate of US$1,000
principal amount of Exchange Notes for each US$1,000 principal amount of
Original Notes tendered as soon as practicable
2
after notice (such notice if given orally, to be confirmed in writing)
of acceptance of said Original Notes by ASAT Finance; provided, however,
that in all cases Original Notes tendered pursuant to the Exchange Offer
will be exchanged only after timely receipt by you of certificates, if
any, for such Original Notes, (or confirmation of book-entry transfer
into your account at DTC) a properly completed and duly executed Letter
of Transmittal (or facsimile thereof) with any required signature
guarantees and any other required documents. Unless otherwise instructed
in writing by ASAT Finance, you shall issue Exchange Notes only in
denominations of US$1,000 or any integral multiple thereof.
10. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the
Prospectus and the Letter of Transmittal, Original Notes tendered
pursuant to the Exchange Offer may be withdrawn at any time prior to
the Expiration Date.
11. If, pursuant to the Exchange Offer, ASAT Finance does not accept for
exchange all or part of the Original Notes tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus under the caption "The Exchange Offer" or otherwise, you
shall as soon as practicable after the expiration or termination of the
Exchange Offer return those certificates for unaccepted Original Notes
(or effect appropriate book-entry transfer), together with any related
required documents and the Letters of Transmittal relating thereto that
are in your possession, to the person who deposited them.
12. All certificates for reissued Original Notes, unaccepted Original Notes
or for Exchange Notes shall be forwarded by first-class certified mail,
return receipt requested under a blanket surety bond protecting you,
ASAT Finance and Guarantors from loss or liability arising out of the
non-receipt or non-delivery of such certificates.
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other
persons or to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) unless the same constitutes your own gross negligence, willful
misconduct or bad faith, you (i) shall not be liable for any action
or omission to act; and (ii) you shall not be liable to a
securityholder, ASAT Finance or any third party for special,
indirect or consequential damages, or lost profits, arising in
connection with this Agreement;
(b) shall have no duties or obligations other than those specifically
set forth in the section of the Prospectus captioned "The Exchange
Offer," in the "Letter of Transmittal" accompanying the Prospectus
or herein or as may be subsequently agreed to in writing by you and
ASAT Finance;
(c) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or
genuineness of any of the certificates or the Original Notes or the
Exchange Notes represented thereby deposited with you pursuant to
the Exchange Offer, and will not be required to and will make no
representation as to the validity, value or genuineness of the
Exchange Offer or the Exchange Notes; provided however, that in no
way will your general duty to act in good faith be discharged by the
foregoing;
(d) shall not be obligated to take any legal action hereunder that might
in your reasonable judgment involve any expense or liability, unless
you shall have been furnished with reasonable indemnity;
(e) may conclusively rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter,
telegram or other document or security delivered to you, which you
reasonably believe to be genuine and to have been signed by the
proper party or parties;
(f) may act upon any tender, statement, request, comment, agreement or
other instrument whatsoever not only as to its due execution and
validity and effectiveness of its provisions, but also as to the
truth and accuracy of any information contained therein, which you
in good faith believe to be genuine or to have been signed or
represented by a proper person or persons;
3
(g) may conclusively rely on and shall be protected in acting upon
written instructions from any officer or Manager of ASAT Finance;
(h) may consult with counsel of your selection with respect to any
questions relating to your duties and responsibilities and the
advice or opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted to be taken by you hereunder in good faith and
in accordance with the written opinion of such counsel; and
(i) shall not advise any person tendering Original Notes pursuant to
the Exchange Offer as to the wisdom of making such tender or as to
the market value or decline or appreciation in market value of any
Original Notes.
15. You shall take such action as may from time to time be requested by
ASAT Finance (and such other action as you may deem appropriate) to
furnish copies of the Prospectus, Letter of Transmittal and the Notice
of Guaranteed Delivery (as described in paragraph (a) of the section of
the Prospectus entitled "The Exchange Offer--Guaranteed Delivery
Procedures") and such other forms as may be approved from time to time
by ASAT Finance or its counsel, to all persons requesting such
documents and to accept and comply with telephone requests for
information relating to the Exchange Offer, provided that such
information shall relate only to the procedures for accepting (or
withdrawing from) the Exchange Offer. ASAT Finance will furnish you
with copies of such documents at your request. You may direct all other
requests for information relating to the Exchange Offer to ASAT
Finance, Attention: Manager.
16. You shall advise by cable, telex, facsimile transmission or telephone,
and promptly thereafter confirm in writing to Manager of ASAT Finance
(at telephone: (▇▇▇) ▇▇▇▇-▇▇▇▇; facsimile: (▇▇▇) ▇▇▇▇-▇▇▇▇) and such
other person or persons as it may request, on each day upon which it
receives any Letter of Transmittal (and more frequently during the week
immediately preceding the Expiration Date and if otherwise requested)
up to and including the Expiration Date, as to the amount of Original
Notes that have been tendered pursuant to the Exchange Offer and the
items received by you pursuant to this Agreement, separately reporting
and giving cumulative totals as to items properly received and items
improperly received. In addition, you will also inform, and cooperate
in making available to, ASAT Finance or any such other person or
persons upon oral request made from time to time prior to the
Expiration Date such other information as it or he or she reasonably
requests. Such cooperation shall include, without limitation, the
granting by you to ASAT Finance and such person as ASAT Finance may
request of access to those persons on your staff who are responsible
for receiving tenders, in order to ensure that immediately prior to the
Expiration Date ASAT Finance shall have received information in
sufficient detail to enable it to decide whether to extend the Exchange
Offer. You shall prepare a final list of all persons whose tenders were
accepted, the aggregate principal amount of Original Notes tendered,
the aggregate principal amount of Original Notes accepted and deliver
said list to ASAT Finance.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and, after the expiration of the Exchange
Offer, the time and date of receipt thereof, and shall be preserved by
you for a period of time at least equal to the period of time you
preserve other records pertaining to the transfer of securities. You
shall dispose of unused Letters of Transmittal and other surplus
materials by returning them to ASAT Finance.
18. For services rendered as Exchange Agent hereunder, you shall be
entitled to fees and reimbursement of expenses incurred prior to the
termination of this Agreement pursuant to the letter agreement between
ASAT Finance and The Chase Manhattan Bank dated , 1999.
19. You hereby acknowledge receipt of the Prospectus, the Letter of
Transmittal and the Notice of Guaranteed Delivery and further
acknowledge that you have examined each of them. Any inconsistency
between this Agreement, on the one hand, and the Prospectus, the Letter
of Transmittal
4
and the Notice of Guaranteed Delivery (as they may be amended from time
to time), on the other hand, shall be resolved in favor of the latter
three documents, except with respect to the duties, liabilities and
indemnification of you as Exchange Agent which shall be controlled by
this Agreement.
20. ASAT Finance covenants and agrees to indemnify and hold you in your
capacity as Exchange Agent hereunder harmless against any loss,
liability, cost or expense, including attorneys' fees and reasonable
expenses arising out of or in connection with your performance of this
Agreement; provided, however, that ASAT Finance shall not be liable for
indemnification or otherwise for any loss, liability, cost or expense
to the extent arising out of your gross negligence, willful misconduct
or bad faith. In no case shall ASAT Finance be liable under this
indemnity with respect to any claim against you unless ASAT Finance
shall be notified by you, by letter or cable or by telex confirmed by
letter, of the written assertion of a claim against you or of any other
action commenced against you, promptly after you shall have received
any such written assertion or shall have been served with a summons in
connection therewith. ASAT Finance shall be entitled to participate at
its own expense in the defense of any such claim or other action, and,
if ASAT Finance so elects, ASAT Finance shall assume the defense of any
suit brought to enforce any such claim. In the event that ASAT Finance
shall assume the defense of any such suit with counsel reasonably
acceptable to you, ASAT Finance shall not be liable for the fees and
expenses of any additional counsel thereafter retained by you. If a
material conflict of interest exists between you and ASAT Finance, you
shall be entitled to appoint separate counsel. In such circumstances,
it is understood that ASAT Finance shall not be liable for the fees and
reasonable expenses of more than one separate firm for you and your
agents.
21. You shall deliver or cause to be delivered, in a timely manner to each
governmental authority to which any transfer taxes are payable in
respect of the exchange of Original Notes, your check in the amount of
all transfer taxes so payable, and ASAT Finance shall reimburse you for
the amount of any and all transfer taxes payable by ASAT Finance in
respect of the exchange of Original Notes in accordance with the
section of the Prospectus captioned "The Exchange Offer-Fees and
Expenses"; provided, however, that you shall reimburse ASAT Finance for
amounts refunded to you in respect of your payment of any such transfer
taxes, at such time as such refund is received by you.
22. You shall arrange to comply with all requirements under the tax laws of
the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the
Internal Revenue Service. You understand that it may be required, in
certain instances, to deduct 31% with respect to interest paid on the
Exchange Notes and proceeds from the sale, exchange, redemption or
retirement of the Exchange Notes from Holders who have not supplied
their correct Taxpayer Identification Number or required certification.
Such funds will be turned over to the United States Internal Revenue
Service.
23. This Agreement and your appointment as Exchange Agent hereunder shall
be construed and enforced in accordance with the laws of the State of
New York and shall inure to the benefit of, and the obligations created
hereby shall be binding upon, the successors and assigns of each of the
parties hereto.
24. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
25. In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
26. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by
a written instrument signed by a duly authorized representative of the
party to be charged. This Agreement may not be modified orally.
5
27. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including
telecopy or similar writing) and shall be given to such party,
addressed to it, at its address or telecopy number set forth below:
If to ASAT Finance or Guarantors:
▇/▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ Industrial Building
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Manager of ASAT Finance
with a copy to:
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
30th Floor, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇, Esq.
If to the Exchange Agent:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇/8
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
With copy to:
The Chase Manhattan Bank
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇/▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
28. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 18 and 20 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly
deliver to ASAT Finance any certificates, funds, lists of information
on security holders or other property then held by you as Exchange
Agent or otherwise under this Agreement.
29. This Agreement shall be binding and effective as of the date hereof.
6
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed
copy.
ASAT (FINANCE) LLC
By: _____________________________
Name:▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Manager
Accepted as of the date first above written:
THE CHASE MANHATTAN BANK
By: _____________________________
Name:▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:Vice President
7
