FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
EXHIBIT 10.1
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (“Amendment”), dated as of May 5,
2006 (the “Amendment Date”), is among Amkor Technology, Inc. and its Subsidiaries party
hereto, the Lenders party to the Loan and Security Agreement referred to below, and Bank of
America, N.A., as administrative agent for the Lenders.
RECITALS:
A. The Borrowers, the Lenders, and the Agent have entered into that certain Loan and Security
Agreement, dated as of November 28, 2005 (as amended, the “Loan and Security Agreement”).
B. The Borrowers have requested that the Lenders amend the Credit Agreement in certain
respects as specifically provided hereinbelow.
C. Subject to satisfaction of the conditions set forth herein, the Requisite Lenders are
willing to amend the Credit Agreement as specifically provided hereinbelow.
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1
Definitions
Section 1.1 Definitions. Unless otherwise defined in this Amendment, capitalized
terms used in this Amendment shall have the same meanings in this Amendment as in the Loan and
Security Agreement, as amended hereby.
ARTICLE 2
Amendments to Loan and Security Agreement
Section 2.1 Amendment to Section 1.1 of the Loan and Security Agreement. Effective as
of the Amendment Date, the following definition in Section 1.1 of the Loan and Security
Agreement is hereby amended and restated in its entirety to read as follows.
Excluded Domestic Subsidiaries — Guardian Assets, Inc., a Delaware
corporation, Amkor International Holdings, a company organized under the laws of the
Cayman Islands (also existing as Amkor International Holdings, LLC, a Delaware
limited liability company), Amkor Technology Limited, a company organized under the
laws of the Cayman Islands, P-Four, Inc., a company organized under the laws of the
Philippines (also existing as P-Four, LLC, a
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Delaware limited liability company), Amkor Technology Philippines, Inc., a
corporation organized under the laws of the Philippines, and Amkor Worldwide
Services LLC, a Delaware limited liability company.
Section 2.2 Amendment to Section 10.1.2 of the Loan and Security Agreement. Effective
as of the Amendment Date, the last two sentences of Section 10.1.2 of the Loan and Security
Agreement are hereby deleted.
Section 2.3 Amendment to Schedule 9.1.4 of the Loan and Security Agreement. Effective
as of the Closing Date, Schedule 9.1.4 of the Loan and Security Agreement is hereby amended
by adding thereto at the end of the Section of such Schedule labeled “Subsidiaries” the following
information under each of the applicable headings:
| Restricted | ||||||||||
| or | Number of | Number of | ||||||||
| Unrestricted | Shares | Shares | ||||||||
| Name | Jurisdiction | Subsidiary | Authorized | Outstanding | Ownership | |||||
Amkor Worldwide
Services LLC
|
Delaware | Restricted | N/A | N/A | 100% Amkor Technology, Inc. |
ARTICLE 3
Conditions and Postclosing Agreements
Section 3.1 Conditions Precedent. The effectiveness of this Amendment is subject to
the satisfaction of the following conditions precedent:
(a) no Default or Event of Default shall be in existence as of the Amendment Date after
giving effect to this Amendment; and
(b) the Agent shall have received a fully executed copy of this Amendment and each
other agreement, document, or instrument reasonably requested by the Agent in connection
with this Amendment (including, without limitation, any agreement, certificate, or document
requested by the Agent with respect to Amkor Worldwide Services LLC), in form and substance
reasonably satisfactory to the Agent.
ARTICLE 4
Ratifications, Representations, and Warranties
Section 4.1 Ratifications. The terms and provisions set forth in this Amendment shall
modify and supersede all inconsistent terms and provisions set forth in the Loan and Security
Agreement and the other Loan Documents and, except as expressly modified and superseded by
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this
Amendment, the terms and provisions of the Loan and Security Agreement and the other Loan Documents
are ratified and confirmed and shall continue in full force and effect. The Borrowers, the Agent,
and the Lenders agree that the Loan and Security Agreement and the other Loan Documents, as amended
hereby, shall continue to be legal, valid, binding, and enforceable in accordance with their
respective terms.
Section 4.2 Borrowers’ Representations and Warranties. The Borrowers hereby represent
and warrant to the Agent and the Lenders that (a) the execution, delivery, and performance of this
Amendment and any and all other Loan Documents executed and/or delivered in connection herewith
have been authorized by all requisite action on the part of the Borrowers and will not violate the
certificate of incorporation or bylaws of any Borrower, (b) the representations and warranties of
the Borrowers contained in the Loan and Security Agreement, as amended hereby, and any other Loan
Document are true and correct on and as of the Amendment Date as though made on and as of the
Amendment Date (except to the extent that such representations and warranties were expressly made
only in reference to a specific date), and (c) after giving effect to this Amendment, no Default or
Event of Default has occurred and is continuing.
ARTICLE 5
Miscellaneous
Section 5.1 Survival of Representations and Warranties. All representations and
warranties made in this Amendment or any other Loan Document including any Loan Document furnished
in connection with this Amendment shall survive the execution and delivery of this Amendment and
the other Loan Documents, and no investigation by the Agent or any Lender shall affect the
representations and warranties or the right of the Agent or any Lender to rely upon them.
Section 5.2 Reference to Loan and Security Agreement and Other Loan Documents. Each
of the Loan Documents, including the Loan and Security Agreement and any and all other agreements,
documents, or instruments now or hereafter executed and delivered pursuant to the terms hereof or
pursuant to the terms of the Loan and Security Agreement and the other Loan Documents as amended
hereby, are hereby amended so that any reference in such Loan Documents to the Loan and Security
Agreement or any other Loan Document shall mean a reference to the Loan and Security Agreement and
the other Loan Documents as amended hereby.
Section 5.3 Severability. Any provision in this Amendment that is held to be
inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be
inoperative, unenforceable, or invalid without affecting the remaining provisions in that
jurisdiction or the operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of this Amendment are declared to be severable.
Section 5.4 Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE
OF NEW YORK, PROVIDED THAT IN THE EVENT ANY
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COURT DETERMINES THAT NEW YORK LAW DOES NOT
GOVERN THE LAWS OF THE STATE OF TEXAS SHALL GOVERN, IN ANY SUCH CASE WITHOUT GIVING EFFECT TO ANY
CONFLICT OF LAW PRINCIPLES (BUT GIVING EFFECT TO FEDERAL LAWS RELATING TO NATIONAL BANKS).
Section 5.5 Successors and Assigns. This Amendment is binding upon and shall inure to
the benefit of the Borrowers, the Agent, and the Lenders and their respective successors and
assigns, except the Borrowers may not assign or transfer any of their respective rights or
obligations hereunder without the prior written consent of the Lenders and any assignment by the
Lenders shall be made only in accordance with the terms of the Loan and Security Agreement.
Section 5.6 Counterparts. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and any of the parties
hereto may execute this Amendment by signing any such counterpart and a telecopy of any such
executed signature page shall be valid as an original. This Amendment shall be effective when it
has been executed by the Borrowers, the Agent, and the Requisite Lenders.
Section 5.7 Effect of Amendment. No consent or waiver, express or implied, by the
Agent or any Lender to or for any breach of or deviation from any covenant, condition, or duty by
the Borrowers shall be deemed a consent or waiver to or of any other breach of the same or any
other covenant, condition, or duty. The Borrowers hereby (a) agree that this Amendment shall not
limit or diminish the obligations of the Borrowers under the Loan Documents delivered in connection
with the Credit Agreement, executed or joined in by the Borrowers and delivered to the Agent, (b)
reaffirms the Borrowers’ obligations under each of such Loan Documents, and (c) agrees that each of
such Loan Documents to which the Borrowers are a party remains in full force and effect and is
hereby ratified and confirmed.
Section 5.8 Further Assurances. The Borrowers shall execute and deliver, or cause to
be executed and delivered, to the Agent such documents and agreements, and shall take or cause to
be taken such actions as the Agent may, from time to time, reasonably request to carry out the
terms of this Amendment and the other Loan Documents.
Section 5.9 Headings. The headings, captions, and arrangements used in this Amendment
are for convenience only and shall not affect the interpretation of this Amendment.
Section 5.10 Entire Agreement. THIS AMENDMENT AND ALL OTHER INSTRUMENTS, DOCUMENTS,
AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS AMENDMENT EMBODY THE FINAL, ENTIRE
AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THIS AMENDMENT, AND MAY
NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS
OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO.
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Section 5.11 Amendment as a Loan Document. This Amendment constitutes a Loan Document
and any failure of the Borrowers to comply with the terms and conditions of this Amendment shall
result in a Default under the Credit Agreement.
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IN WITNESS WHEREOF, the parties have entered into this Amendment on the date first above
written.
| BORROWERS: | ||||||
| AMKOR TECHNOLOGY, INC. | ||||||
| By: Name: |
/s/ Xxxxxxx X. Xxxxx
|
|||||
| Title: | Chief Financial Officer | |||||
| UNITIVE, INC. | ||||||
| By: Name: |
/s/ Xxxxxx Xxxxxxx
|
|||||
| Title: | Treasurer | |||||
| UNITIVE ELECTRONICS, INC. | ||||||
| By: Name: |
/s/ Xxxxxx Xxxxxxx
|
|||||
| Title: | Treasurer | |||||
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| AGENT: | ||||||
| BANK OF AMERICA, N.A. | ||||||
| By: | /s/
Xxx X. Xxxxxxxxxxx |
|||||
| Name: | Xxx X. Xxxxxxxxxxx
|
|||||
| Title: | Senior
Vice President
|
|||||
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| LENDERS: | ||||||
| BANK OF AMERICA, N.A. | ||||||
| By: | /s/ Xxx X. Xxxxxxxxxxx |
|||||
| Name: | Xxx X. Xxxxxxxxxxx
|
|||||
| Title: | Senior Vice President
|
|||||
| WACHOVIA CAPITAL FINANCE CORPORATION (WESTERN) | ||||||
| By: Name: |
/s/ Xxxx Xxxxxxxx
|
|||||
| Title: | Director | |||||
| TEXTRON FINANCIAL CORPORATION | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. |
|||||
| Name: | Xxxxxx X. Xxxxxx, Xx.
|
|||||
| Title: | Senior Account Executive
|
|||||
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