EXHIBIT 4.8
CONFORMED COPY
DATED 10TH JANUARY, 2002
ST ASSEMBLY TEST SERVICES LTD
AS ISSUER
CITICORP INVESTMENT BANK (SINGAPORE) LIMITED
AS ISSUING AND PAYING AGENT AND AGENT BANK
- AND -
BRITISH AND MALAYAN TRUSTEES LIMITED
AS TRUSTEE
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AGENCY AGREEMENT
RELATING TO
ST ASSEMBLY TEST SERVICES LTD
S$500,000,000
MULTICURRENCY MEDIUM TERM NOTE PROGRAMME
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C O N T E N T S
CLAUSE TITLE PAGE
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1 INTERPRETATION 1
2 APPOINTMENT OF AGENTS 3
3 ISSUE OF THE NOTES 4
4 PAYMENT 7
5 FORFEITURE OF UNCLAIMED REDEMPTION MONEYS 9
6 EARLY REDEMPTION AND EXERCISE OF OPTIONS 9
7 CANCELLATION, DESTRUCTION AND RECORDS 11
8 ISSUE OF REPLACEMENT NOTES 12
9 NOTICES 13
10 DOCUMENTS AND FORMS 13
11 INTEREST RATE FIXING FOR FLOATING RATE NOTES
AND HYBRID NOTES 14
12 INTEREST RATE FIXING FOR VARIABLE RATE NOTES 15
13 DETERMINATION OF REDEMPTION AMOUNTS 16
14 INDEMNITY 16
15 GENERAL 17
16 CHANGES IN AGENTS 18
17 COMMISSIONS, FEES AND EXPENSES 19
18 COMMUNICATIONS 19
19 GOVERNING LAW 21
FIRST SCHEDULE -- FORM OF EXERCISE NOTICE 22
SECOND SCHEDULE -- FORM OF PURCHASE NOTICE 24
T H I S A G R E E M E N T is made on 10th January, 0000
X X X X X X N:-
(1) ST ASSEMBLY TEST SERVICES LTD (the "Issuer");
(2) CITICORP INVESTMENT BANK (SINGAPORE) LIMITED as issuing and paying
agent (the "Issuing and Paying Agent");
(3) CITICORP INVESTMENT BANK (SINGAPORE) LIMITED as agent bank (the "Agent
Bank"); and
(4) BRITISH AND MALAYAN TRUSTEES LIMITED as trustee (the "Trustee", which
expression shall include any other trustee for the time being of the
Trust Deed referred to below).
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 one 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 exchangeable for Definitive Notes or for a
Permanent Global Note 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 Notes will be constituted by a Trust Deed (the "Trust Deed")
dated the date of this Agreement between the Issuer and the Trustee.
(D) The Issuer wishes to provide for the appointment of agents to act on
its behalf in relation to issues of Notes made pursuant to the Programme
Agreement.
(E) This Agreement is the Agency Agreement described in Clause 1(A) of
the Trust Deed. The Issuer has requested the Agents (as defined below) and the
Agents have agreed, to act in relation to the Notes in the manner set out in
this Agreement and the Trustee, in its capacity as such, approves its terms by
the execution of this Agreement.
I T I S A G R E E D as follows:-
1. INTERPRETATION
(A) Definitions:-
In this Agreement, except where the context requires otherwise:-
(1) "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 hereunder;
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"CDP System" means the computerised system operated by the
Depository whereby Securities Accounts are maintained by
Depositors with the Depository and, inter alia, transfers of the
Notes are effected electronically between Securities Accounts;
"Depositors" means, at any time, persons (including Depository
Agents) having any Notes standing to the credit of their
Securities Accounts at that time;
"Depository" means The Central Depository (Pte) Limited;
"Depository Agent" means a corporation authorised by the
Depository to maintain Sub-Accounts;
"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;
"Notes" means medium term notes of the Issuer issued or to be
issued pursuant to the Programme Agreement and constituted by the
Trust Deed (and shall, where the context so admits, include the
Global Notes and the Definitive Notes);
"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;
"Securities Accounts" means the securities accounts of the
Depositors maintained with the Depository (but does not include
Sub-Accounts);
"SGX-ST" means the Singapore Exchange Securities Trading Limited;
"Stock Exchange" means the SGX-ST or any other or further stock
exchange(s) on which any Notes may from time to time be listed,
and references in this Agreement to the "relevant Stock Exchange"
shall, in relation to any Notes, be references to the Stock
Exchange on which such Notes are from time to time, or are
intended to be, listed; and
"Sub-Accounts" means the securities sub-accounts maintained by
each Depository Agent for its own account and for the account of
its clients;
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(2) expressions defined in the Programme Agreement, the Trust Deed or
in the Conditions of the Notes (the "Conditions") shall have the
same meanings in this Agreement unless the context otherwise
requires;
(3) references to "Clauses" and "Schedules" are to be construed as
references to clauses of, and schedules to, this Agreement;
(4) the headings in this Agreement are inserted for convenience only
and shall be ignored in construing this Agreement; and
(5) references in this Agreement to 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.
(B) Contracts (Rights of Third Parties) Xxx 0000: A person who is not a
party to this Agreement has no right under the Contracts (Rights of Third
Parties) Xxx 0000 to enforce any term of this Agreement.
2. APPOINTMENT OF AGENTS
(A) Appointment: The Issuer appoints the Agents as its agents in respect
of the Notes in accordance with the provisions of this Agreement and of the
Conditions at their respective specified offices referred to in the Notes (or,
in the case of the Issuing and Paying Agent, at its office in Singapore
specified for the purposes of Clause 16) and the Agents accept such
appointments. Except in Clause 16, references to the Agents are to them acting
solely through such respective offices.
(B) Agents' Duties: The obligations of the Agents are several and not
joint. Each Agent shall be obliged to perform only such duties as are
specifically set out in this Agreement, the Conditions and the Procedures
Memorandum and any duties necessarily incidental to them. No implied duties or
obligations shall be read into any such documents. No Agent shall be obliged to
perform additional duties set out in any Pricing Supplement and thereby
incorporated into the Conditions unless it shall have previously agreed to
perform such duties. If the Conditions are amended on or after a date on which
any Agent accepts any appointment in a way that affects the duties expressed to
be performed by such Agent, it shall not be obliged to perform such duties as so
amended unless it has first approved the relevant amendment. No Agent shall be
under any obligation to take any action under this Agreement that it expects,
and has so notified the Issuer in writing, will result in any expense to or
liability of such Agent, the payment of which is not, in its reasonable opinion,
assured to it within a reasonable time.
(C) Issuing and Paying Agent to act for Trustee: The Issuing and Paying
Agent shall, on notice in writing by the Trustee made at any time after an Event
of Default has occurred in relation to a particular Series of Notes and until
notified in writing by the Trustee to the contrary, so far as permitted by any
applicable law:-
(1) act as the Issuing and Paying Agent of the Trustee under the
Trust Deed and the Notes of such Series on the terms of this
Agreement
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(with consequential amendments as necessary and except that the
Trustee's liability under this Agreement for the indemnification,
remuneration and all other expenses of the Issuing and Paying
Agent will be limited to the amounts for the time being held by
the Trustee in respect of such Series on the terms of the Trust
Deed) and thereafter to hold all Notes and Coupons of such Series
and all moneys, documents and records held by them in respect of
Notes and Coupons of such Series to the order of the Trustee; or
(2) deliver all Notes and Coupons of such Series and all moneys,
documents and records held by them in respect of the Notes and
Coupons of such Series to the Trustee or as the Trustee directs
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.
(D) Notices of Change of Trustee: The Issuer shall forthwith give notice
to each of the Agents of any change in the person or persons comprising the
Trustee.
3. ISSUE OF THE NOTES
(A) Preconditions to Issue: The Issuer shall not agree to any Issue Date
unless it is a business day. Before issuing any Notes that are intended to be
cleared through a clearing system other than the Depository the Issuer shall
inform the Issuing and Paying Agent of its wish to issue such Notes and shall
agree with the Issuing and Paying Agent the procedure for issuing such Notes,
which agreement shall cover the time, date and place for the delivery of the
relative Global Note by the Issuing and Paying Agent, whether such delivery is
to be free of payment or against payment, an appropriate method for determining
non-U.S. beneficial ownership of Notes in accordance with applicable U.S. law
and the method by which the Issuing and Paying Agent is to receive any payment,
and hold any moneys, on behalf of the Issuer.
(B) Notification of Issue: Not later than 2.00 p.m. (Singapore time) on
the second business day (or by such later time as may be agreed from time to
time by the Issuer and the Issuing and Paying Agent) preceding the Issue Date of
each Tranche to be issued, the Issuer shall notify to the Issuing and Paying
Agent all such information as the Issuing and Paying Agent may require for it to
carry out its functions as contemplated by this Clause, and in particular the
details required for it to complete the relevant Global Note, whether the
relevant Global Note is to be deposited with the Depository and the aggregate
principal amount of Notes of each Tranche to be subscribed by each relevant
Dealer and the account of the Dealer to which delivery should be made.
(C) Issue and Delivery of Global Notes: Upon receipt by the Issuing and
Paying Agent of the information from the Issuer referred to in sub-Clause (B)
above enabling it, and instructions, to do so, the Issuing and Paying Agent
shall complete a Temporary Global Note or, as the case may be, a Permanent
Global Note in an aggregate principal amount equal to that of the Tranche to be
issued. If the Issuing and Paying Agent is not in possession of any Temporary
Global Note or Permanent Global Note at the time of any issue for completion of
the relevant details as contemplated in the foregoing provisions of
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this sub-Clause (C), the Issuer shall complete the Temporary Global Note or, as
the case may be, Permanent Global Note and deliver the same to the Issuing and
Paying Agent for authentication not later than 3.45 p.m. (Singapore time) on the
business day (or by such later time as may be agreed from time to time by the
Issuer and the Issuing and Paying Agent) preceding the Issue Date of that
Tranche. Immediately before the issue of any Global Note, the Issuing and Paying
Agent shall authenticate it. Following authentication of any Global Note and
upon receipt of confirmation from the Issuer that it has received the
subscription moneys due to the Issuer, the Issuing and Paying Agent shall:-
(1) if any Global Note is to be deposited with the Depository and
cleared through the CDP System, deliver such Global Note to the
Depository not later than 2.00 p.m. (Singapore time) on the Issue
Date (or such other date and time as the Depository may require);
and
(2) in any other case, deliver such Global Note at such time, on such
date, to such person and in such place as may have been agreed
between the Issuer and the Issuing and Paying Agent.
(D) Exchange for Permanent Global Notes and Definitive Notes: On and
after the due date for exchange of any Temporary Global Note which is
exchangeable for a Permanent Global Note and upon certification as to non-U.S.
beneficial ownership in the form attached to the relevant Temporary Global Note,
if the relevant Temporary Global Note is issued pursuant to U.S. Treas. Reg.
1.163-5(c)2(i)(D) (the "D Rules"), the Issuing and Paying Agent shall, on
presentation to it or to its order of such Temporary Global Note, complete a
Permanent Global Note, authenticate it and procure the exchange of interests in
such Temporary Global Note for interests in an equal principal amount of a
Permanent Global Note in accordance with such Temporary Global Note. On or after
the due date for exchange of any Global Note which is exchangeable for
Definitive Notes, the Issuing and Paying Agent shall, on presentation to it or
to its order of such Global Note, procure the exchange of interests in such
Global Note for Definitive Notes with Coupons attached (other than any which
mature on or before the relevant date for exchange) in a principal amount equal
to that portion of such Global Note submitted for exchange in accordance with
such Global Note. On exchange in full of any Global Note, the Issuing and Paying
Agent shall cancel it and, unless otherwise instructed by the Issuer, return it
to the Issuer.
(E) Form and Availability of Notes and Coupons: The Global Notes 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. The Definitive Notes
and the Coupons shall be signed manually or in facsimile by a duly authorised
officer of the Issuer. The Issuer may adopt and use the signature of any
Director, the Secretary or, as the case may be, a duly authorised officer of the
Issuer at the date of signing a Note or Coupon even if, before the Note or
Coupon is issued, he ceases for whatever reason to hold such office or, as the
case may be, be so authorised, and Notes and Coupons issued in such
circumstances shall nevertheless be valid and binding obligations of the Issuer.
Definitive Notes and Coupons shall be security printed in accordance with all
applicable stock exchange requirements.
(F) Details of Notes Delivered: As soon as practicable after delivering
any Global Note or Definitive Note, the Issuing and Paying Agent shall supply,
in such format as it shall from time to time agree with the Issuer, all relevant
details of the Notes delivered to the Issuer, the other Agent and the Trustee.
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(G) Notes not to be issued: If any Note in respect of which information
has been supplied under sub-Clause (B) above is not to be issued on a given
Issue Date, the Issuer shall immediately (and, in any event, prior to the Issue
Date) notify the Issuing and Paying Agent. If the Issuing and Paying Agent has
received the notification in time for the relevant Note not to be issued, the
Issuing and Paying Agent shall not thereafter issue or release the relevant
Note(s) but shall cancel and, unless otherwise instructed by the Issuer, destroy
them.
(H) Outstanding Amount: The Issuing and Paying Agent shall, upon request
from the Issuer or the Trustee, inform such person of the aggregate principal
amount of Notes, or Notes of any particular Series, then outstanding at the time
of such request and upon receipt from any Dealer, inform such Dealer of the
aggregate principal amount of Notes then outstanding of any Series in relation
to which Dealer is a Relevant Dealer.
(I) Procedures Memorandum: The Issuer shall furnish a copy of the
Procedures Memorandum from time to time in effect to the Issuing and Paying
Agent and the Trustee. The parties agree that all issues of Notes shall be made
in accordance with the Procedures Memorandum unless the Issuer, the Trustee, the
Relevant Dealer(s) (or, in the case of a Syndicated Issue, the Lead Manager(s))
and the Issuing and Paying Agent agree otherwise in respect of any issue. The
Procedures Memorandum may only be amended with the consent of the Issuing and
Paying Agent, the Trustee and the Issuer.
(J) Depository Agreement: In relation to Notes which are represented by
Global Notes which have been deposited with the Depository and without prejudice
to Clause 17, the Issuing and Paying Agent agrees that, notwithstanding that the
Issuer may have entered into separate arrangements with the Depository, it
will:-
(1) perform its duties and obligations under this Agreement in
respect of such Notes insofar as they apply to such Notes;
(2) (where applicable and without prejudice to Clause 2(B)) carry out
the duties and obligations of the Issuer under Clauses 4.1, 4.6,
4.7, 5.1, 5.3, 5.4, 5.5, 8.1, 9.1(a), 9.1(b) and 9.1(c) of the
Depository Agreement in respect of such Notes on behalf of the
Issuer;
(3) render reasonable assistance to the Issuer upon its request to
enable the Issuer to perform its other duties and obligations
under the Depository Agreement in respect of such Notes; and
(4) insofar as applicable, abide by and be bound by the CDP Terms (as
defined in the Depository Agreement) as the same may be amended,
modified or supplemented by the Depository from time to time, and
insofar as applicable, abide by such procedures as may be
established by the Depository from time to time for the clearing
and settlement of trades or other transactions in the Notes in
the CDP System.
In the event that the Depository Agreement shall be amended or varied such that
any of the obligations and duties of the Issuing and Paying Agent under
paragraph (2) above is
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affected, the Issuing and Paying Agent shall continue to carry out such affected
duties and obligations unless such affected duties and obligations would not
ordinarily be reasonably required of an issuing and paying agent and provided
that the Issuing and Paying Agent deems it reasonably practicable for it to
continue carrying out such affected duties and obligations.
4. PAYMENT
(A) Payment to Issuing and Paying Agent: The Issuer will, not later than
11.00 a.m. (local time in the principal financial centre of the relevant
currency) on each date on which any payment in respect of any Series of the
Notes becomes due, transfer to the Issuing and Paying Agent such amount as may
be required for the purposes of such payment. The Issuer will confirm to the
Issuing and Paying Agent by 3.00 p.m. (Singapore time) on the business day prior
to the due date for any such payment that irrevocable instructions have been
issued by it for such payment to be made to the Issuing and Paying Agent.
(B) Condition to payment by Issuing and Paying Agent: The Issuing and
Paying Agent will forthwith notify the Issuer and the Trustee if it has not, by
the time specified for its receipt, received the confirmation referred to in
sub-Clause (A) above or by the due date for any payment due in respect of any
Series of the Notes received the full amount so payable on such date.
(C) Payment by Issuing and Paying Agent: (1) Subject to receipt by the
Issuing and Paying Agent of the required amount, the Issuing and Paying Agent
will, in accordance with the Conditions, pay or cause to be paid on behalf of
the Issuer on and after each due date therefor the amounts due in respect of the
relevant Series of the Notes. If any payment provided for in sub-Clause (A)
above is made late but otherwise in accordance with the provisions of this
Agreement the Issuing and Paying Agent will nevertheless make such payments in
respect of the Notes. However, unless and until the full amount of any such
payment has been made to or to the order of the Issuing and Paying Agent, it
shall not be bound to make payments in respect of the Notes and Coupons as
aforesaid.
(2) If any moneys paid to the Issuing and Paying Agent towards payment of
principal or interest in respect of the Notes are not so applied towards payment
of principal or, as the case may be, interest in accordance with the Conditions
due to the failure of the Noteholders to claim such payment, the Issuing and
Paying Agent shall, provided such deposit is practicable and upon the request of
the Issuer, deposit such moneys in an interest bearing account and subject to
such terms and conditions as the Issuer shall approve. Any interest as such
moneys may earn while on deposit, less any costs, charges or expenses properly
incurred by the Issuing and Paying Agent in relation to the placing of such
moneys in an interest-bearing account (including any penalties referred to
below), shall be for the account of the Issuer and all costs, charges or
expenses properly incurred by the Issuing and Paying Agent in relation to the
placing of such moneys in an interest-bearing account (including, without
limitation, any penalties imposed by the relevant bank or financial institution
for the withdrawal by the Issuing and Paying Agent of such moneys prior to the
maturity of such deposit) shall be borne by the Issuer.
(D) Late Payment: If the Issuing and Paying Agent has not received by the
due date for any payment in respect of any Series of the Notes the full amount
payable on such date but receives such full amount later, it will forthwith:-
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(1) so notify the Trustee; and
(2) give notice to the relevant Noteholders in accordance with the
Conditions that it has received such full amount.
(E) Method of payment to Issuing and Paying Agent: All sums payable to
the Issuing and Paying Agent under this Clause will be paid in the currency in
which such sums are denominated and in immediately available and freely
transferable funds or same day funds by transfer to such account of the Issuing
and Paying Agent with such bank in Singapore as the Issuing and Paying Agent may
from time to time notify the Issuer and the Trustee for this purpose.
(F) Moneys held by Issuing and Paying Agent: The Issuing and Paying
Agent may deal with moneys paid to it under this Agreement in the same manner as
other moneys paid to it as a banker by its customers except that (1) it may not
exercise any lien, right of set-off or similar claim in respect of them, (2) it
shall not combine or consolidate such moneys with any other moneys or accounts
and (3) it shall not, save as provided in paragraph (2) of sub-Clause (C) above,
be liable to any person for interest on any sums held by it under this
Agreement.
(G) Partial Payments: If on presentation of a Note or Coupon related
thereto only part of the amount payable in respect of it is paid (except as a
result of a deduction of tax permitted by the Conditions), the Issuing and
Paying Agent shall procure that it is enfaced with a memorandum of the amount
paid and the date of payment and shall return it to the person who presented it.
(H) Notification of Interest Payment: The Issuer shall notify (if it is
not practicable for the Agent Bank to do so in the case of the first Interest
Period), or procure that the Agent Bank notifies (in the case of each Interest
Period thereafter), the Issuing and Paying Agent and the Trustee of the Rate of
Interest for each Interest Period, the date of each Interest Payment Date and
the Interest Amount payable on each Interest Payment Date forthwith upon their
being determined (and of any adjustment thereto in accordance with the
Conditions forthwith upon its being made).
(I) Withholding/Deduction: The Issuing and Paying Agent shall make all
payments of principal or interest in respect of the Notes or the Coupons after
withholding or deduction for tax imposed or levied by or on behalf of Singapore
or any authority thereof or therein and which are required by law to be withheld
or deducted. Payment of the amounts withheld or deducted shall be made by the
Issuing and Paying Agent to the relevant authority within such period as may be
prescribed by law or such authority after payment of principal or interest to
the holder of the Note or Coupon related thereto (as the case may be). Where the
Issuer is not permitted under applicable law to make payments of principal or
interest in respect of any Notes or Coupons without any such withholding or
deduction for Singapore tax, no payment without deduction or withholding for
Singapore tax shall be made unless the Issuing and Paying Agent shall have
received a statutory declaration or other evidence satisfactory to the Issuing
and Paying Agent confirming that the beneficial owner of such principal or
interest is (1) a resident in Singapore for tax purposes or (2) a non-resident
of Singapore who did not purchase the Notes using funds from its Singapore
operations. If requested by the Issuer, the Issuing and Paying Agent will at the
expense of
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the Issuer furnish the holder of the Note or Coupon with a statement specifying
the gross amount of principal or interest, the amount of tax deducted and the
net amount of principal or interest paid or receivable. The Issuing and Paying
Agent shall be liable to the Issuer for any tax not withheld in proper reliance
in good faith upon any statutory declaration or other evidence.
(J) Payments by the Depository: The provisions of this Clause apply only
to Notes which are represented by Global Notes which are not deposited with the
Depository and are not cleared through the CDP System and accordingly, where the
Global Notes have been deposited with the Depository, the administrative
procedures and other relevant provisions relating to the making of payments
under the Notes by the Depository on behalf of the Issuer shall be separately
agreed between the Issuer and the Depository.
5. FORFEITURE OF UNCLAIMED REDEMPTION MONEYS
(A) Unclaimed Redemption Moneys: Any moneys paid to the Issuing and
Paying Agent for the payment of the principal of or interest on any Notes or
Coupons and remaining unclaimed for five years after the appropriate Relevant
Date for payment shall, on written notice being given to the Issuing and Paying
Agent by the Issuer, be repaid by the Issuing and Paying Agent to the Issuer,
and all liability of the Issuing and Paying Agent under the Notes and the
Coupons with respect to such moneys shall thereupon cease, provided that the
Issuing and Paying Agent 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.
(B) Moneys owing to Issuing and Paying Agent: Notwithstanding the
foregoing, the Issuing and Paying Agent shall not be obliged to make any
repayment to the Issuer so long as and to the extent that any amounts which
should have been paid to or to the order of the Issuing and Paying Agent by the
Issuer shall remain unpaid.
6. EARLY REDEMPTION AND EXERCISE OF OPTIONS
(A) Notice to Issuing and Paying Agent: If the Issuer intends (other
than consequent upon an Event of Default or any right of the holder to require
redemption) to redeem all or any of the Notes of any Series before their stated
maturity date or to exercise any Issuer's option in the Conditions it shall, at
least 14 days before the latest date for the publication of the notice of
redemption or of exercise of any Issuer's option required to be given to
Noteholders, give notice of such intention to the Issuing and Paying Agent and
to the Trustee stating the date on which such Notes are to be redeemed or such
option is to be exercised and the principal amount of Notes to be redeemed or
subject to the option.
(B) Drawing on Partial Redemption or Exercise of Option: If some only of
the Notes of a Series are to be redeemed, or subject to the exercise of an
Issuer's option, on such date the Issuing and Paying Agent shall make the
drawing that is required in accordance with the Conditions but shall give the
Issuer and the Trustee reasonable notice
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of the time and place proposed for such drawing and the Issuer and the Trustee
shall be entitled to send representatives to attend such drawing.
(C) Notice to Noteholders: The Issuing and Paying Agent shall publish
any notice to holders of Notes required in connection with any such redemption
or exercise of an Issuer's option and shall at the same time also publish a
separate list of the certificate numbers of any Notes previously drawn and not
presented either for payment or as may otherwise be required pursuant to any
Issuer's option. Such notice shall specify the date fixed for redemption or
exercise of any option, the redemption price, the manner in which redemption
will be effected or the terms of the exercise of such option and, in the case of
a partial redemption or exercise of any option and the certificate numbers of
the Notes drawn.
(D) Option Exercise Notices: The Issuing and Paying Agent will keep a
stock of notices ("Exercise Notices") in the form set out in the First Schedule
or in such other form as may be acceptable to the Issuing and Paying Agent, and
will make such notices available on demand to Noteholders. The Issuing and
Paying Agent with which a Note is deposited in a valid exercise of such
Noteholder's option shall hold such Note (together with any Coupons relating to
it deposited with it on behalf of the depositing Noteholder) on behalf of the
depositing Noteholder (but shall not, save as provided below, release it) until
the due date for redemption of, or exercise of the option relating to, the
relevant Note(s) consequent upon the exercise of such option, when, in the case
of an option to redeem, and subject as provided below, it shall present any such
Note and Coupons to itself for payment of the amount due in accordance with the
Conditions and shall pay such moneys in accordance with the directions of the
Noteholder contained in the Exercise Notice. In the event of the exercise of any
other option, the Issuing and Paying Agent shall take the steps required of it
in the Conditions. If any such Note becomes immediately due and payable before
the due date for its redemption or exercise of the option, or if upon due
presentation payment of the amount due is improperly withheld or refused or
exercise of the option is improperly denied, the Issuing and Paying Agent shall
mail such Note (and any related Coupons) by uninsured post to, and at the risk
of, the relevant Noteholder (unless the Noteholder otherwise requests and pays
the costs of such insurance in advance to the Issuing and Paying Agent at the
time of depositing the Note) to such address as may have been given by the
Noteholder in the Exercise Notice. At the end of each period for the exercise of
any such option, the Issuing and Paying Agent shall promptly notify the Issuer
and the Trustee of the principal amount of the Notes in respect of which such
option has been exercised with it together with their certificate numbers.
(E) Purchase Notices: The Issuing and Paying Agent will keep a stock of
notices ("Purchase Notices") in the form set out in the Second Schedule or in
such other form as may be acceptable to the Issuing and Paying Agent, and will
make such notices available on demand to Noteholders. Upon receipt of any Note
deposited in the exercise of the Noteholders' option under Condition 5(c), the
Issuing and Paying Agent shall hold such Note (together with any Coupons
relating to it deposited with it) on behalf of the depositing Noteholder (but
shall not, save as provided below, release it) until the due date for its
purchase consequent upon the exercise of such option, when, subject as provided
below, it shall present such Note and Coupons to itself for payment of the
purchase moneys therefor (including interest accrued to such date) and shall pay
such moneys in accordance with the directions of the Noteholder contained in the
Purchase Notice. If, prior to such due date for its purchase, such Note becomes
immediately due and payable or if upon due presentation payment of such purchase
moneys is improperly withheld or refused, the Issuing and
10
Paying Agent shall mail such Note (and any related Coupons) by uninsured post
to, and at the risk of, the relevant Noteholder (unless the Noteholder otherwise
requests and pays the costs of such insurance in advance to the Issuing and
Paying Agent at the time of depositing the Note) to such address as may have
been given by the Noteholder in the Purchase Notice. At the end of each period
for the exercise of any such option, the Issuing and Paying Agent shall promptly
notify the Issuer and the Trustee of the principal amount of the Notes deposited
with it together with their certificate numbers.
7. CANCELLATION, DESTRUCTION AND RECORDS
(A) Cancellation by Issuing and Paying Agent: All Notes which are
redeemed (together with such unmatured Coupons as are attached to or are
surrendered with them at the time of such redemption), all Temporary Global
Notes (which are fully exchanged for Permanent Global Notes or, as the case may
be, Definitive Notes) or Permanent Global Notes (which are fully exchanged for
Definitive Notes) and all Coupons which are paid in full shall be cancelled
forthwith by the Issuing and Paying Agent. If the Issuer or any of its
subsidiaries purchases any Notes that are to be cancelled in accordance with the
Conditions, the Issuer shall forthwith cancel them or procure their
cancellation, inform the Issuing and Paying Agent and send them to the Issuing
and Paying Agent.
(B) Certification of Payment Details: The Issuing and Paying Agent shall
as soon as possible and in any event within one month after the end of each
calendar quarter during which any such redemption, purchase, payment or
surrender of any Notes or Coupons takes place furnish to the Issuer and the
Trustee a certificate stating (to the extent that the relevant information has
not already been given in routine reports and statements furnished to the
Issuer) (1) 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), (2) the certificate numbers of such Notes, (3) the total number and
maturity dates of such Coupons, (4) the certificate numbers of those Notes which
have been purchased and cancelled as aforesaid and (5) the total number and
maturity date of unmatured Coupons not surrendered with Definitive Notes
redeemed or purchased and cancelled.
(C) Destruction: Upon receipt of instructions from the Issuer, the
Issuing and Paying Agent shall destroy the cancelled Notes and/or Coupons in its
possession and shall furnish the Issuer and the Trustee with a destruction
certificate which shall, in the case of Notes, give the certificate numbers of
the Notes in numerical sequence and (where applicable) particulars of the
Coupons attached thereto and, in the case of Coupons, show the total number and
maturity dates of the Coupons destroyed.
(D) Records and Reports: The Issuing and Paying Agent will:-
(1) keep 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) and of their redemption, purchase,
payment, exchange, cancellation and destruction and of all
replacement Notes
11
or Coupons issued in substitution for lost, stolen, mutilated,
defaced or destroyed Notes or Coupons pursuant hereto;
(2) in respect of Coupons of each maturity and Series, retain, until
the expiry of five years after their due date for payment, a
record of the total number of all paid Coupons of that maturity
and Series and a record of the total number of Coupons of that
maturity and Series still remaining unpaid;
(3) make such records and Coupons (if any) available at all
reasonable times to the Issuer and the Trustee; and
(4) furnish to the Issuer and the Trustee such routine reports and
statements as they may agree from time to time.
8. ISSUE OF REPLACEMENT NOTES
(A) Stocks of Notes: The Issuer shall cause a sufficient quantity of
additional forms of Definitive Notes and Coupons to be made available, upon
request, to the Issuing and Paying Agent (in such capacity the "Replacement
Agent") for the purpose of issuing replacement Notes or Coupons as provided
below.
(B) Replacement: The Replacement Agent shall, subject to and in
accordance with the Conditions, all applicable legal and regulatory requirements
and the following provisions of this Clause, issue replacement Notes or Coupons
in place of Notes or Coupons which have been lost, stolen, mutilated, defaced or
destroyed.
(C) Conditions of replacement: The Replacement Agent shall not issue any
replacement Note or Coupon unless and until the applicant therefor shall have:-
(1) paid such costs (including the fees and costs of the Issuing and
Paying Agent) as may be incurred in connection therewith;
(2) furnished the Replacement Agent with such evidence (including
evidence as to the certificate number of the Note or Coupon in
question), 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 Notes or Coupons) and otherwise as the Issuer may require;
(3) surrendered to the Replacement Agent any mutilated or defaced
Note or Coupon to be replaced; and
(4) (if requested by the Issuer) advertised such loss in the Straits
Times in accordance with Section 125 of the Companies Act,
Chapter 50 of Singapore.
(D) Cancellation of replaced Notes and Coupons: The Replacement Agent
shall cancel any mutilated or defaced Notes or Coupons replaced by it pursuant
to this Clause
12
and (to the extent that the relevant information has not already been given in
routine reports and statements furnished to the Issuer and the Trustee) shall
send the Issuer and the Trustee a certificate stating the certificate numbers of
Notes or Coupons so cancelled and upon receipt of instructions from the Issuer,
shall destroy such cancelled Notes or Coupons and send the Issuer and the
Trustee a destruction certificate containing the information specified in Clause
7(C). In the case of mutilated or defaced Definitive Notes, the Replacement
Agent shall ensure that (unless otherwise instructed by the Issuer as to
evidence and indemnity) any replacement Note will only have attached to it
Coupons corresponding to those attached to the mutilated or defaced Note
presented for replacement.
(E) Notice of presentation of replaced Notes: Whenever any Note or
Coupon alleged to have been lost, stolen or destroyed in replacement of which a
new Note or Coupon has been issued shall be presented to the Issuing and Paying
Agent for payment or exchange, the Issuing and Paying Agent shall not pay or
cause to be paid on behalf of the Issuer any principal or interest in respect of
such Note or Coupon and shall send notice thereof to the Issuer.
(F) Instructions of Issuer: The Replacement Agent shall issue
replacement Notes or Coupons solely upon and in accordance with written
instructions from the Issuer. The Issuer shall, as soon as practicable upon
receipt from the Replacement Agent of any application for replacement of Notes
or Coupons, instruct the Replacement Agent in writing as to the action to be
taken with respect to such application.
9. NOTICES
(A) Notices to Noteholders: At the request and expense of the Issuer,
the Issuing and Paying Agent or the Agent Bank, as the case may be, shall
arrange for the publication in accordance with the Conditions of all notices to
Noteholders. Notices to the holders of Notes shall be published in accordance
with the Conditions and, unless the Trustee otherwise directs, shall only be
published in a form which has been approved by the Trustee.
(B) Notices from Noteholders: The Issuing and Paying Agent shall
promptly notify the Issuer, the relevant Noteholders and the Trustee of any
notice received by it from a Noteholder whether electing to exchange a Global
Note for Definitive Notes or otherwise.
(C) Copies to Trustee: The Issuing and Paying Agent shall promptly send
to the Trustee two copies of the form of every notice given to Noteholders for
approval and of every such notice once published.
10. DOCUMENTS AND FORMS
(A) Documents and Forms: The Issuer shall provide to the Issuing and
Paying Agent:-
(1) in the event that Definitive Notes of any Series are to be
issued, (i) such Definitive Notes and any related Coupons duly
executed on behalf of the Issuer, (ii) specimens of such Notes
and Coupons and (iii) additional forms of such Notes and Coupons
for the purpose of issuing replacements, at least 14 days before
the Exchange Date for
13
the relative Global Note (and the Issuing and Paying Agent shall
authenticate such Definitive Notes immediately before their
issue);
(2) all documents (including Exercise Notices and Purchase Notices)
required under the Notes or by any Stock Exchange on which the
Notes are listed to be available for issue or inspection during
business hours (and the Issuing and Paying Agent shall make such
documents so available to Noteholders); and
(3) forms of voting certificates and block voting instructions,
together with instructions as to how to complete, deal with and
record the issue of such forms (and the Issuing and Paying Agent
shall make such forms available to Noteholders and carry out the
other functions required of it under Schedule 4 of the Trust
Deed).
(B) Notes etc. held by Issuing and Paying Agent: The Issuing and Paying
Agent (1) acknowledges that all forms of Notes and Coupons delivered to and held
by it pursuant to this Agreement shall be held by it as custodian only and it
shall not be entitled to and shall not claim any lien or other security interest
on such forms, (2) shall only use such forms in accordance with this Agreement,
(3) shall maintain all such forms in safe custody, (4) shall take such security
measures as may reasonably be necessary to prevent their theft, loss or
destruction and (5) shall keep an inventory of all such forms and make it
available to the Issuer and the Trustee at all reasonable times.
11. INTEREST RATE FIXING FOR FLOATING RATE NOTES AND HYBRID NOTES
(A) Floating Rate Notes: The Issuer hereby requests the Agent Bank to act
as its agent in relation to the Notes for the purpose of calculating and
publishing the Rate of Interest from time to time applicable to any Floating
Rate Notes and any Hybrid Notes and all matters incidental thereto (as set out
in the Conditions) and the Agent Bank agrees to act as such agent. The Agent
Bank shall in this regard perform the duties expressed to be performed by it in
this Clause and in the Conditions.
(B) Rate of Interest: For the purposes of sub-Clause (A) above, the Agent
Bank shall maintain a record of the quotations obtained by it and all rates
determined and all other action taken by it for the purposes of sub-Clause (A)
above and shall from time to time on request deliver to the Issuer a certified
copy of such record.
(C) Continuing Obligations: If any Floating Rate Note or any Hybrid Note
becomes due and payable under Condition 9, the Rate of Interest and Interest
Amounts payable in respect of such Note after the date of the notice given under
such Condition shall nevertheless continue to be calculated as previously by the
Agent Bank in accordance with the provisions (amended as necessary) of the
Conditions but no publication of such Rate of Interest and Interest Amounts need
be made 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 the Floating Rate Notes become so payable.
14
12. INTEREST RATE FIXING FOR VARIABLE RATE NOTES
(A) Variable Rate Notes: The Issuer hereby requests the Agent Bank to act
as its agent in relation to the Notes for the purpose of calculating the Rate of
Interest from time to time applicable to any Variable Rate Note and all matters
incidental thereto (as set out in the Conditions) and the Agent Bank agrees to
act as such agent. The Agent Bank shall in this regard perform the duties
expressed to be performed by it in this Clause and in the Conditions.
(B) Rate of Interest: For the purposes of sub-Clause (A) above, the Agent
Bank shall maintain a record of the quotations obtained by it and all rates
determined and all other action taken by it for the purposes of sub-Clause (A)
above and shall from time to time on request deliver to the Issuer a certified
copy of such record.
(C) Agreed Yield/Agreed Rate: (1) The Issuer undertakes as soon as
possible after the Agreed Yield or, as the case may be, the Agreed Rate in
respect of any Variable Rate Note for any Interest Period for such Variable Rate
Note is determined, but not later than 10.30 a.m. (Singapore time) on the next
following business day after the business day during which the Agreed Yield or,
as the case may be, the Agreed Rate for such Variable Rate Note is determined,
to 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. The Issuing and Paying Agent agrees to notify the relevant
Noteholder, at its request, of the Agreed Yield or, as the case may be, the
Agreed Rate for such Variable Rate Note for such Interest Period.
(2) Failure to comply with this sub-Clause (C) shall not affect the
validity of the Agreed Yield or, as the case may be, the Agreed Rate in respect
of any Variable Rate Note determined in accordance with the Conditions.
(D) Determination by Agent Bank: The Agent Bank shall determine, in
accordance with Condition 4(II)(c), the Rate of Interest applicable to those
Variable Rate Notes of each Series for each Interest Period (or part thereof, as
the case may be) for which there is neither an Agreed Yield nor an Agreed Rate
or no Relevant Dealer in respect of such Variable Rate Notes, calculate the
Interest Amounts payable on the presentation and surrender of the Coupons
appertaining to such Variable Rate Notes (rounding to the nearest cent, half a
cent being rounded upwards) for the relevant Interest Period (or part thereof)
and determine the relevant Interest Payment Date all subject to and in
accordance with the Conditions.
(E) Notification of Rate of Interest: In relation to each Interest Period,
as soon as practicable but in any event not later than 5.00 p.m. (Singapore
time) on each Interest Determination Date, the Agent Bank shall cause the Rate
of Interest for each Variable Rate Note, the Interest Amounts for each Variable
Rate Note and the Interest Payment Date to be notified to the Issuer and the
Issuing and Paying Agent.
(F) Continuing Obligations: If any Variable Rate Note becomes due and
payable under Condition 9, the Rate of Interest and Interest Amounts payable in
respect of such Variable Rate Note after the date of notice given under such
Condition shall nevertheless continue to be calculated as previously by the
Agent Bank in accordance with the provisions (amended as necessary) of the
Conditions but no publication of such Rate of Interest and
15
Interest Amounts need be made 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 the Variable Rate Notes become so
payable.
13. DETERMINATION OF REDEMPTION AMOUNTS
(A) Redemption Amount: The Issuer hereby requests the Agent Bank to act as
its agent in relation to those Notes the redemption amount of which is not their
principal amount for the purpose of calculating each Redemption Amount from time
to time payable in respect of such Notes and all matters incidental thereto (as
set out in the Conditions) and the Agent Bank agrees to act as such agent. The
Agent Bank shall in this regard perform the duties expressed to be performed by
it in the Conditions of the relevant Notes.
(B) Calculation: For the purposes of sub-Clause (A) above, the Agent Bank
shall:-
(1) as soon as practicable after determining any Redemption Amount
notify the Issuer, the Issuing and Paying Agent, the Trustee and,
if the relevant Notes are listed or are to be listed on a Stock
Exchange and the rules of such Stock Exchange require, such Stock
Exchange thereof;
(2) maintain a record of the source and method of its determination
of each Redemption Amount and shall from time to time on request
deliver to the Issuer a certified copy of such record; and
(3) if it does not for any reason at any material time determine any
Redemption Amount, forthwith notify the Issuer that such
determination has not been made.
(C) Other Calculations: The provisions of this Clause shall apply mutatis
mutandis to any other calculation which is expressed to be made by the Agent
Bank in the Conditions relating to any Notes.
14. INDEMNITY
(A) By Issuer: The Issuer will indemnify each of the Agents against any
loss, liability, cost, claim, action, demand or expense (including, but not
limited to, all costs, charges and expenses paid or incurred in disputing or
defending any of the foregoing) which it may incur or which may be made against
it arising out of, as a result of or in connection with its appointment or the
exercise of its powers and performance of its duties hereunder except such as
may result from the breach by it of the terms of this Agreement or from its own
wilful default, negligence or bad faith or that of its officers or employees.
(B) By Agents: Each of the Agents shall severally indemnify the Issuer
against any loss, liability, cost, claim, action, demand or expense (including,
but not limited to, all
16
costs, charges and expenses paid or incurred in disputing or defending any of
the foregoing) which the Issuer may incur or which may be made against it as a
result the breach by such Agent of the terms of this Agreement or its wilful
default, negligence or bad faith or that of its officers or employees.
15. GENERAL
(A) No Agency or Trust: In acting under this Agreement and in connection
with the Notes, the Agents shall not have any obligations towards or
relationship of agency or trust with any of the Noteholders or Couponholders and
shall only be obliged to perform the duties set out specifically in this
Agreement, the Conditions and the Procedures Memorandum and any duties
necessarily incidental to them.
(B) Holder to be treated as Owner: Except as otherwise required by law,
each Agent shall treat the holder of a Note or Coupon as its absolute owner as
provided in the Conditions and shall not be liable for doing so.
(C) No Lien: No Agent shall exercise any lien, right of set-off or similar
claim against any Noteholder in respect of moneys payable by it under this
Agreement.
(D) Taking of Advice: Each of the Agents may consult on any legal matter
relating to this Agreement or the Notes any legal adviser selected by it in
consultation with the Issuer, who may be an employee of or legal adviser to the
Issuer, and it shall be protected and shall incur no liability for action taken,
or suffered to be taken, with respect to such matter in good faith and in
accordance with the opinion of such legal adviser.
(E) Note and Document believed to be Genuine: Each of the Agents shall be
protected and shall incur no liability for or in respect of any action taken or
thing suffered by it in reliance upon any Note or Coupon or other document
reasonably believed by it to be genuine and to have been presented or signed by
the proper parties.
(F) List of Authorised Persons: The Issuer shall provide the Issuing and
Paying Agent for itself and for delivery to each other Agent with a copy of the
certified list of persons authorised to take action on behalf of the Issuer in
connection with this Agreement and to execute Notes or Coupons and shall notify
the Issuing and Paying Agent and each other Agent immediately in writing if any
of such persons ceases to be so authorised or if any additional person becomes
so authorised and, unless and until notified of any such change, each of the
Agents shall be entitled to rely upon the certificate(s) delivered to them most
recently and all instructions given in accordance with such certificate(s) shall
be binding upon the Issuer.
(G) Other Relationships: Neither any Agent nor any other person whether
acting for itself or in any other capacity will be precluded from becoming the
owner of, or acquiring any interest in, or holding or disposing of any Note or
Coupon or any securities of the Issuer with the same rights as it would have had
if such Agent were not acting as Agent or from entering into or being interested
in any contracts or transactions with the Issuer or from acting on, or as
depository, trustee or agent for, any committee or body of holders of any
securities of the Issuer and will not be liable to account for any profit.
17
(H) Validity of Agreement: None of the Agents shall be responsible for the
validity of this Agreement, the Notes or the Coupons or any security in respect
thereof or for any act done or omitted in connection herewith.
16. CHANGES IN AGENTS
(A) Appointment and Termination of Appointment: In relation to any Series
of Notes, the Issuer may at any time appoint additional Issuing and Paying
Agents and/or terminate the appointment of the Issuing and Paying Agent or the
Agent Bank by giving to the entity concerned not less than 60 days' notice to
that effect, which notice shall expire not less than 30 days before or after any
due date for payment of the Notes or Coupons comprising that Series. Upon any
letter of appointment being executed by or on behalf of the Issuer and any
person appointed as an Agent, such person shall become a party to this Agreement
as if originally named in it and shall act as such Agent in respect of that or
those Series of Notes in respect of which it is appointed.
(B) Resignation: In relation to any Series of Notes, either Agent may
resign its appointment hereunder at any time by giving to the Issuer (except in
the case of the Issuing and Paying Agent) and the Issuing and Paying Agent not
less than 60 days' notice to that effect, which notice shall expire not less
than 30 days before or after any due date for payment of the Notes or Coupons
comprising that Series.
(C) Condition to Resignation and Termination: No resignation by or
(subject to sub-Clause (F) below) termination of the appointment of the Issuing
and Paying Agent or the Agent Bank shall, however, take effect until a new
Issuing and Paying Agent or Agent Bank (as the case may be), which shall be a
bank, merchant bank or other financial institution in good standing with a
specified office in Singapore and approved by the Trustee (such approval not to
be unreasonably withheld), has been appointed. No resignation by or termination
of the appointment of the Issuing and Paying Agent shall take effect if as a
result of such resignation or termination there would cease to be an Issuing and
Paying Agent with a specified office in Singapore as required by the Conditions.
(D) Change of Office: Any Agent may change the address of its office, in
which event it shall give to the Issuer, the Issuing and Paying Agent and the
Trustee not less than 21 days' prior notice to that effect, giving the address
of the new office and the date upon which such change is to take effect.
(E) Notices: The Issuer shall give to Noteholders in accordance with the
Conditions and the Trustee not less than 30 days' notice of any such proposed
appointment, termination, resignation or change of which it is aware.
(F) Automatic Termination in Certain Events: The appointment of any Agent
shall forthwith terminate if at any time such Agent becomes incapable of acting
or if it is adjudged bankrupt or insolvent, or files a voluntary petition in
bankruptcy or makes an assignment for the benefit of its creditors or consents
to the appointment of a receiver, judicial manager, administrator or other
similar official of all or any substantial part of its property or admits in
writing its inability to pay or meet its debts as they mature or suspends
payment thereof, or if a resolution is passed or an order made for the winding
up or dissolution of such Agent, or if a receiver, judicial manager,
administrator or other similar official of such Agent or all or any substantial
part of its property is appointed, or if any order
18
of any court is entered approving any petition filed by or against it under the
provisions of any applicable bankruptcy or insolvency law, or if any public
officer takes charge or control of such Agent or its property or affairs for the
purpose of rehabilitation, conservation or liquidation.
(G) Delivery of Records on Termination: If the appointment of the Issuing
and Paying Agent is terminated it shall, on the date on which such termination
takes effect, pay to the successor Issuing and Paying Agent any amount held by
it for payment in respect of the Notes or Coupons and shall deliver to its
successor all records maintained by it pursuant to this Agreement and all Notes
and Coupons held by it.
(H) Successor Corporations: Any corporation into which any Agent may be
merged or converted or any corporation with which such Agent may be consolidated
or any corporation resulting from any merger, conversion or consolidation to
which such Agent shall be a party shall, to the extent permitted by applicable
law, be the successor Agent under this Agreement without any further formality.
Notice of any such merger, conversion or consolidation shall forthwith be given
to the Issuer, the Trustee and the other Agents.
(I) Liabilities of Parties: The termination of appointment or resignation
of any of the Agents shall not prejudice the rights of any party hereto against
the others for any liabilities incurred prior to such termination or
resignation.
17. COMMISSIONS, FEES AND EXPENSES
(A) Fees: The Issuer will, in respect of the services to be performed by
the Agents under this Agreement, pay to the Issuing and Paying Agent the
commissions and fees at the times and in the manner set out in a letter dated
10th January, 2002 from the Issuing and Paying Agent to the Issuer and
countersigned by the Issuer and the Issuer need not concern itself with the
apportionment of such moneys as between the Issuing and Paying Agent and the
other Agents.
(B) Costs: The Issuer shall pay to each of the Agents all out-of-pocket
expenses (including legal, printing, advertising, telex, postage and insurance
expenses, the fees and expenses of legal advisers and any applicable value added
tax, sales, stamp, issue, registration, documentary or other taxes and duties)
as may be properly incurred by it (as evidenced by the relevant receipts and
invoices) in connection with its services under this Agreement.
(C) Taxes and Duties: The Issuer will pay all goods and services, value
added, stamp or other documentary taxes or duties, if any, to which this
Agreement or the issue of the Notes or the Coupons (including the issue of the
Global Notes and the exchange thereof for definitive Notes) may be subject.
(D) No Deduction or Withholding: All payments of fees hereunder 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).
18. COMMUNICATIONS
19
(A) Notices: Except as otherwise provided hereunder any communication
shall be in writing and sent by hand, prepaid registered post, facsimile or
telephone (with confirmation in writing):-
in the case of the Issuer, to it at:-
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
in the case of either of the Agents, to it care of:-
Citicorp Investment Bank (Singapore) Limited,
000, Xxxxxxxx Xxxxxx 0, #00-00,
Xxxxxxxx Xxxxxxxx,
Xxxxxxxxx 000000.
Telephone Number: 0000000
Facsimile Number: 4268056
Attention: Ms Kumari Mohan
and, in the case of the Trustee, to it at:-
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
or any other address of which notice in writing has been given to the parties in
accordance with this Clause.
A communication will be deemed received (if by telephone) when made,
(if by facsimile transmission) when despatched and receipt in good order is
acknowledged by telephone, (if in writing delivered by hand) when left at the
address required by this sub-Clause (A) 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. Every communication shall be irrevocable unless not
acted upon.
(B) Notices through Issuing and Paying Agent: All communications relating
to this Agreement between the Issuer and any of the Agents or between the Agents
20
themselves shall be made (except where otherwise expressly provided) through the
Issuing and Paying Agent.
(C) Instructions to the Issuing and Paying Agent: Instructions to the
Issuing and Paying Agent hereunder shall be given in the manner contemplated by
sub-Clause (A) above or by such other electronic means of transmission as may be
agreed in writing between the Issuer and the Issuing and Paying Agent from time
to time and the Issuing and Paying Agent shall incur no liability to the Issuer
in acting under this Agreement upon any instructions contemplated hereby which
the recipient thereof believed in good faith to have been given by a person
mentioned in a certificate current for the purposes of Clause 15(F). In the
event that a discrepancy exists between the telephonic instructions and the
written confirmation given by, or on behalf of, the Issuer or, in the absence of
a written confirmation, the telephonic instructions will be deemed to be the
controlling and proper instructions.
19. GOVERNING LAW
This Agreement is governed by, and shall be construed in accordance
with, the laws of Singapore and each of the parties hereby irrevocably and
unconditionally submits to the non-exclusive jurisdiction of the Singapore
courts and waives any objection on the grounds of venue or forum non conveniens
or any similar grounds.
21
THE FIRST SCHEDULE
FORM OF EXERCISE NOTICE
ST ASSEMBLY TEST SERVICES LTD
S$500,000,000 Multicurrency Medium Term Note Programme
Series No: [ ]
By depositing this duly completed Notice with the Issuing and Paying Agent for
the Notes of the above Series (the "Notes") the undersigned holder of such of
the Notes as are surrendered with this Notice and referred to below irrevocably
exercises its option to have such Notes, or the principal amount of Notes
specified below redeemed under Condition 5(e) of the Notes.
This Notice relates to Notes in the aggregate principal amount of , in
--------
the case of Definitive Notes bearing the following certificate numbers:-
------------------------------------------
------------------------------------------
------------------------------------------
If the Notes to which this Notice relates are to be returned, they should be
returned by post to:-
------------------------------------------
------------------------------------------
------------------------------------------
PAYMENT INSTRUCTIONS
Please make payment in respect of the above Notes as follows:-
*(a) by [currency] cheque drawn on a bank in [the principal financial centre of
the currency] and mailed to the above address.
*(b) by transfer to the following [currency] account:-
Bank:
-------------------------------------------
Branch Address:
---------------------------------
-------------------------------------------------
22
Branch Code:
------------------------------------
Account Number:
---------------------------------
Account Name:
-----------------------------------
Signature of holder:
----------------------------
To be completed by the Issuing and Paying Agent
Received by:
------------------------------------
[Signature and stamp of the Issuing and Paying Agent]
At its office at:
-------------------------------
-------------------------------------------------
-------------------------------------------------
On:
---------------------------------------------
*Delete as appropriate
Notes:-
1. The Agency Agreement provides that Notes so returned will be by post,
uninsured and at the risk of the Noteholder, unless the Noteholder
otherwise requests and pays the costs of such insurance in advance to the
Issuing and Paying Agent at the time of depositing the Note.
2. This Exercise Notice is not valid unless all of the paragraphs requiring
completion are duly completed.
3. The Issuing and Paying Agent shall not in any circumstances be liable to
the depositing Noteholder or any other person for any loss or damage
arising from any act, default or omission of the Issuing and Paying Agent
in relation to the Notes or any of them unless such loss or damage was
caused by the fraud or negligence of the Issuing and Paying Agent or its
directors, officers or employees.
23
THE SECOND SCHEDULE
FORM OF PURCHASE NOTICE
ST ASSEMBLY TEST SERVICES LTD
S$500,000,000 Multicurrency Medium Term Note Programme
Series No: [ ]
By depositing this duly completed Notice with the Issuing and Paying Agent for
the Notes of the above Series (the "Notes") the undersigned holder of such of
the Notes as are surrendered with this Notice and referred to below irrevocably
exercises its option to require ST Assembly Test Services Ltd to purchase such
Notes on the Interest Payment Date falling on under Condition
-----------------
5(c)[(i)/(ii)] of the Notes.
This Notice relates to Notes in the aggregate principal amount of , in
--------
the case of Definitive Notes bearing the following certificate numbers:-
------------------------------------------
------------------------------------------
------------------------------------------
If the Notes to which this Notice relates are to be returned, they should be
returned by post to:-
------------------------------------------
------------------------------------------
------------------------------------------
PAYMENT INSTRUCTIONS
Please make payment in respect of the above Notes as follows:-
*(a) by [currency] cheque drawn on a bank in [the principal financial centre of
the currency] and mailed to the above address.
*(b) by transfer to the following [currency] account:-
Bank:
-------------------------------------------
Branch Address:
---------------------------------
-------------------------------------------------
24
Branch Code:
------------------------------------
Account Number:
---------------------------------
Account Name:
-----------------------------------
Signature of holder:
----------------------------
To be completed by the Issuing and Paying Agent
Received by:
------------------------------------
[Signature and stamp of the Issuing and Paying Agent]
At its office at:
-------------------------------
-------------------------------------------------
-------------------------------------------------
On:
---------------------------------------------
*Delete as appropriate
Notes:-
(1) The Agency Agreement provides that Notes so returned will be sent by post,
uninsured and at the risk of the Noteholder, unless the Noteholder
otherwise requests and pays the costs of such insurance in advance to the
Issuing and Paying Agent at the time of depositing the Note.
(2) This Purchase Notice is not valid unless all of the paragraphs requiring
completion are duly completed.
(3) The Issuing and Paying Agent shall not in any circumstances be liable to
the depositing Noteholder or any other person for any loss or damage
arising from any act, default or omission of the Issuing and Paying Agent
in relation to the Notes or any of them unless such loss or damage was
caused by the fraud or negligence of the Issuing and Paying Agent or its
directors, officers or employees.
25
I N W I T N E S S W H E R E O F this Agreement has been entered into
on the date stated at the beginning.
The Issuer
ST ASSEMBLY TEST SERVICES LTD
By: sd. XXXXX X XXXXXXX Witness: sd. XXXXX XXXX YUN
------------------- ------------------
Name: XXXXX X XXXXXXX Name: XXXXX XXXX YUN
------------------- ------------------
Title: DIRECTOR Address: SOLICITOR
------------------- ------------------
The Issuing and Paying Agent
CITICORP INVESTMENT BANK (SINGAPORE) LIMITED
By: sd. XXXXXX XXX
-------------------
Name: XXXXXX XXX
-------------------
Title: MANAGING DIRECTOR
-------------------
The Agent Bank
CITICORP INVESTMENT BANK (SINGAPORE) LIMITED
By: sd. XXXXXX XXX
-------------------
Name: XXXXXX XXX
-------------------
Title: MANAGING DIRECTOR
-------------------
The Trustee
BRITISH AND MALAYAN TRUSTEES LIMITED
26
By: sd. XXXXX XXX XXXX-XXXX
-----------------------
Name: XXXXX XXX YUNG-SHIH
-----------------------
Title: DIRECTOR
-----------------------
27
