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EXHIBIT 10.18
EXECUTION COPY
AMENDMENT NO. 1
Dated as of December 31, 1998
to
RECEIVABLES PURCHASE AGREEMENT
Dated as of June 20, 1997
THIS AMENDMENT NO. 1 TO RECEIVABLES PURCHASE AGREEMENT ("Amendment")
dated as of December 31, 1998 is entered into among Amkor Technology, Inc.,
successor by merger to Amkor Electronics, Inc. (the "Originator"), and Amkor
Receivables Corp., a Delaware corporation (the "Buyer").
PRELIMINARY STATEMENTS
(1) The Originator and the Buyer have entered into a Receivables
Purchase Agreement dated as of June 20, 1997 (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the "Purchase
Agreement"), that the Buyer, Falcon Asset Securitization Corporation ("Falcon"),
certain financial institutions party thereto (the "Investors"), and The First
National Bank of Chicago (the "Agent") have entered into an Investor Agreement
dated as of June 20, 1997, as amended (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Investor Agreement").
(2) In accordance with Section 8.1(b) of the Purchase Agreement, the
Originator and Buyer, and, as required under the Investor Agreement, Falcon, the
Investors and the Agent have agreed to amend the Purchase Agreement on the terms
and conditions hereinafter set forth.
NOW, THEREFORE, the parties agree as follows:
Section 1. Defined Terms. Capitalized terms used herein and not
otherwise defined herein shall have their meanings as attributed to such terms
in the Purchase Agreement.
Section 2. Amendment to the Purchase Agreement. Subject to the
Satisfaction of the conditions precedent set forth in Section 3 hereof, the
Purchase Agreement is hereby amended as follows:
2.1 Section 4.1 of the Purchase Agreement is hereby amended to add the
following paragraphs to the end of such Section:
"(l) Leverage Ratio. The ratio of the Total Liabilities to Tangible Net
Worth in respect of the Originator as of the end of any fiscal quarter to
not exceed 6.5 to 1 at any time."
"(m) Minimum Interest Coverage Ratio. The ratio of EBIT to Interest
Expense in respect of the Originator, as of the end of any fiscal quarter
and calculated in respect of the 12 month period then ended, to equal or
exceed 2.0 to 1 at all times."
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2.2 Section 4.2 of the Purchase Agreement is hereby amended to
add the following paragraph to the end of such Section:
"(f) Restrictions on the Indebtedness of Subsidiaries. The
Originator shall not permit its Subsidiaries, individually or in the
aggregate, to incur or, at any time, be obligated with respect to
Indebtedness to third parties in an aggregate principal amount greater
than $50,000,000 (if such amount is denominated in other than U.S.
dollars, such amount shall be converted to U.S. dollars on the date such
Indebtedness is incurred with respect to the exchange rate set forth in
the Wall Street Journal on such date)."
2.3 The Purchase Agreement is hereby amended to delete all
references to the words "Performance Undertaking" contained therein.
2.4 Exhibit I to the Purchase Agreement is hereby amended to add
the following defined terms thereto (in the appropriate alphabetical order):
"EBIT" means, with respect to any entity for any accounting
period, net income (or net loss)(excluding extraordinary items) plus any
amount which, in the determination of net income (or net loss) for such
period, has been deducted for (a) interest expense and (b) income tax
expense, in each case determined in accordance with generally accepted
accounting principles consistently applied.
"Interest Expense" means, with respect to any entity for any
accounting period, the gross interest expense of such entity during such
accounting period, determined in accordance with generally accepted
accounting principles consistently applied.
"Tangible Net Worth" means, with respect to any entity, the
excess of total assets over total liabilities, total assets and total
liabilities each to be determined in accordance with generally accepted
accounting principles, excluding, however, from the determination of
total assets goodwill, organizational expenses, research and development
expenses, trademarks, trade names, copyrights, patents, patent
applications, licenses and rights in any thereof, unrealized gains
(losses) on marketable securities, and equity adjustments from foreign
currency translation and other items which are treated as intangibles in
conformity with generally accepted accounting principles.
"Total Liabilities" means, with respect to any entity, all
obligations which in accordance with generally accepted accounting
principles would be included in determining total liabilities as shown
on the liabilities side of a balance sheet of such entity, including,
without limitation, all indebtedness for borrowed money.
2.5 Exhibit I to the Purchase Agreement is hereby amended to
delete clause (ii) of the defined term "Eligible Receivable" contained therein
in its entirety and to substitute the following therefor:
"(ii) the Obligor of which is not (a) both (1) an Obligor,
together with its Affiliates, on Receivables having an aggregate
Outstanding Balance of $1,000,000 or
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more and (2) an Obligor in respect of which 25% or more of the aggregate
Outstanding Balance of its Receivables remain unpaid for 116 days or
more after the original invoice date or is identified on the Seller's
books and records as being disputed, or (b) an Obligor, together with
its Affiliates, in respect of which $3,000,000 or more of the aggregate
Outstanding Balance of its Receivables remain unpaid for 116 days or
more after the original invoice date or is identified on the
Originator's books and records as being disputed,"
2.6 Exhibit I to the Purchase Agreement is hereby amended to
delete the defined term "Performance Undertaking" contained therein in its
entirety.
Section 3. Conditions Precedent. This Amendment shall become
effective and be deemed effective as of December 31, 1998 (the "Effective
Date") subject to the condition precedent that the Agent shall have received
four (4) counterparts of this Amendment duly executed by the Originator, the
Buyer, Falcon, the Investors and the Agent.
Section 4. Covenants, Representations and Warranties of the
Originator.
4.1 Upon the effectiveness of this Amendment, the Originator
hereby reaffirms all covenants, representations and warranties made in the
Purchase Agreement to the extent the same are not amended hereby and agrees
that all such covenants, representations and warranties shall be deemed to have
been remade as of the Effective Date.
4.2 The Originator represents and warrants that this Amendment
has been duly authorized, executed and delivered by it pursuant to its
corporate powers and constitutes a legal, valid and binding obligation of such
party, enforceable against it in accordance with its terms.
4.3 Neither the execution and delivery by the Originator of
this Amendment, nor the consummation of the transactions herein contemplated,
nor compliance with the provisions hereof will violate any law, rule,
regulation, order, writ, judgment, injunction, decree or award binding on the
Originator or the Originator's articles of incorporation or by-laws or the
provisions of any indenture, instrument or agreement to which the Originator
is a party or is subject, or by which its or its property, is bound, or
conflict with or constitute a default thereunder.
Section 5. Reference to and Effect on the Purchase Agreement.
5.1 As of the Effective Date, each reference in the Purchase
Agreement to "this Agreement", "hereunder", "hereof", "herein", or words of
like import shall mean and be a reference to the Purchase Agreement as amended
hereby, and each reference to the Purchase Agreement in any other document,
instrument or agreement executed and/or delivered in connection with the
Purchase Agreement shall mean and be a reference to the Purchase Agreement as
amended hereby.
5.2 Except as specifically amended above and in connection
herewith, the Purchase Agreement and all other documents, instruments and
agreements executed and/or
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delivered in connection therewith shall remain in full force and effect and are
hereby ratified and confirmed.
5.3 The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of the Buyer, or
the Agent (as its assignee) under the Purchase Agreement or any other document,
instrument or agreement executed in connection therewith, nor constitute a
waiver of any provision contained therein, except as specifically set forth
herein.
Section 6. Costs and Expenses. The Originator hereby agrees to
pay all costs, fees and out-of-pocket expenses (including, without limitation,
the attorneys' fees and time charges of attorneys for the Agent (as the Buyer's
assignee), which attorneys may be employees of the Agent) incurred by the Agent
in connection with the preparation, execution and enforcement of this Amendment.
Section 7. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
SECTION 8. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE
OF ILLINOIS.
Section 9. Headings. The headings in the Sections and clauses
of this Amendment are for convenience of reference only and shall not limit or
otherwise affect any of the terms hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
AMKOR TECHNOLOGY, INC., successor
by merger to Amkor Electronics, Inc.
By: /s/ XXXXXXX XXXXX
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Name: Xxxxxxx Xxxxx
Title: Vice President
AMKOR RECEIVABLES CORP.
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
Consented to this 31st day of
December, 1998 by:
FALCON ASSET SECURITIZATION
CORPORATION
By:
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Name:
Title:
THE FIRST NATIONAL BANK
OF CHICAGO, as an Investor and as Agent
By:
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Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
AMKOR TECHNOLOGY, INC., successor
by merger to Amkor Electronics, Inc.
By:
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Name:
Title:
AMKOR RECEIVABLES CORP.
By:
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Name:
Title:
Consented to this 31st day of
December, 1998 by:
FALCON ASSET SECURITIZATION
CORPORATION
By: /s/ YUTI HAMA
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Name: Yuti Hama
Title: Authorized Signer
THE FIRST NATIONAL BANK
OF CHICAGO, as an Investor and as Agent
By: /s/ YUTI HAMA
-----------------------------------
Name: Yuti Hama
Title: Authorized Signer
