AMENDMENT NO. 1 TO
CREDIT AGREEMENT
This AMENDMENT NO. 1 TO THE CREDIT AGREEMENT, dated as of October
27, 2004, among Amkor Technology, Inc. a Delaware corporation (the "Borrower"),
the Lenders (as defined below) party hereto and the Administrative Agent (as
defined below), amends certain provisions of the Credit Agreement dated as of
June 29, 2004 (as amended, supplemented or otherwise modified from time to time,
the "Credit Agreement") among the Borrower, the lenders party thereto
(collectively the "Lenders"), the issuers party thereto (collectively the
"Issuers"), Citigroup Global Markets, Inc. ("CGMI"), as sole lead arranger and
sole bookrunner, Citicorp North America, Inc., as administrative agent for the
Lenders and Issuers (in such capacity, the "Administrative Agent"), JPMorgan
Chase Bank, as syndication agent, Xxxxxxx Xxxxx Capital Corporation ("Xxxxxxx
Xxxxx"), as documentation agent, and X.X. Xxxxxx Securities Inc. and Xxxxxxx
Xxxxx, as arrangers.
W I T N E S S E T H:
WHEREAS, the parties to this Amendment are party to the Credit
Agreement. Capitalized terms defined in the Credit Agreement and not otherwise
defined in this Amendment are used herein as therein defined;
WHEREAS, the Borrower intends to borrow $300,000,000 under a second
lien senior term loan facility (the "Second Lien Credit Agreement") among the
Borrower, the lenders party thereto (the "Second Lien Lenders"), CNAI, as
administrative agent (in such capacity, the "Second Lien Agent") and collateral
agent (in such capacity, the "Collateral Agent") for the Second Lien Lenders,
and to use the proceeds of such borrowing for general corporate purposes of the
Borrower, including operating expenses of the Borrower and its Subsidiaries,
working capital, acquisitions and other investments;
WHEREAS, the parties hereto have agreed to amend the Credit
Agreement as hereinafter set forth to, among other things, permit the
Indebtedness to be incurred under the second lien senior term loan facility; and
NOW, THEREFORE, in consideration of the premises and the covenants
and obligations contained herein the parties hereto agree as follows:
SECTION 1. AMENDMENTS. Subject to the satisfaction of the conditions
precedent set forth in Section 3 hereof, the Credit Agreement is hereby amended
as follows:
(a) AMENDMENTS TO ARTICLE I (DEFINITIONS, INTERPRETATION AND
ACCOUNTING TERMS).
(i) The following new definitions are inserted in Section 1.1
(Defined Terms) of the Credit Agreement in the appropriate place to preserve the
alphabetical order of the definitions in such section:
"AT Korea" means Amkor Technology Korea, Inc., an indirect
wholly-owned Subsidiary of the Borrower.
"AT Korea Bonds" means $385,000,000 of bonds issued by AT
Korea to the Borrower on May 11, 1999 and $625,000,000 of bonds issued by
AT Korea to the Borrower on May 2, 2000 of which $385,000,000 and
$425,000,000, respectively, is outstanding as of October 27, 2004.
"Collateral Agent" has the meaning specified in the
Intercreditor Agreement.
"Deposit Account" has the meaning given to such term in the
UCC.
"Deposit Account Control Agreement" has the meaning specified
in the Pledge and Security Agreement.
"Intercreditor Agreement" means the intercreditor agreement,
substantially in the form of Exhibit J (Form of Intercreditor Agreement)
executed by the Administrative Agent, the Collateral Agent, the Second
Lien Agent, the Borrower and each Subsidiary Guarantor.
"Korean Collateral Documents" means (a) the Korean law
securities Pledge Agreement dated as of October 27, 2004, among the
Borrower and the Administrative Agent, granting a Lien on the AT Korea
Bonds in favor of the Administrative Agent and (b) each guarantee of the
AT Korea Bonds executed by each Subsidiary of the Borrower from time to
time.
"Second Lien Agent" means the Administrative Agent as defined
in the Second Lien Credit Agreement.
"Second Lien Credit Agreement" means the Second Lien Credit
Agreement dated as of October 27, 2004, among the Borrower, the lenders
party thereto, CNAI, as administrative agent , the Collateral Agent, CGMI,
as sole lead arranger, and CGMI, X.X. Xxxxxx Securities Inc. and Xxxxxxx
Xxxxx Capital Corporation, as joint bookrunners.
(ii) The definition of "Collateral Documents" is hereby
amended and restated in its entirety to read as follows:
"Collateral Documents" means the Pledge and Security
Agreement, the Cayman Share Mortgage, the Mortgages, the Deposit Account
Control Agreements, the Securities Account Control Agreements, the Korean
Collateral Documents, the Intercreditor Agreement and any other document
executed and delivered by a Loan Party granting or perfecting a Lien on
any of its property to secure payment of the Secured Obligations.
(iii) The definition of "Related Documents" in Section 1.1
(Defined Terms) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"Related Documents" means the Second Lien Credit Agreement,
the Intercreditor Agreement, the Indentures and each other document and
instrument executed with respect thereto.
(b) AMENDMENTS TO ARTICLE IV (REPRESENTATIONS AND WARRANTIES).
(i) Section 4.6 (Litigation) of the Credit Agreement is hereby
amended by (x) deleting in its entirety the phrase "other than those" in the
fourth line thereof and (y) deleting in its entirety the word "not" immediately
before the phrase "reasonably be expected" in the fourth line thereof.
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(c) AMENDMENTS TO ARTICLE VII (NEGATIVE COVENANTS).
(i) Section 7.1 (Indebtedness) of the Credit Agreement is
hereby amended by deleting the word "and" at the end of clause (k), renaming
clause (l) as clause (m) and inserting a new clause (l) immediately after clause
(k) thereof to read in its entirety as follows:
"(l) Indebtedness incurred under the Second Lien Credit
Agreement and the other Loan Documents (as defined therein); and"
(ii) Section 7.2 (Liens, Etc.) of the Credit Agreement is
hereby amended by deleting the word "and" at the end of clause (e), renaming
clause (f) as clause (g) and inserting a new clause (f) immediately after clause
(e) thereof to read in its entirety as follows:
"(f) Liens on the Collateral securing obligations under the
Second Lien Credit Agreement and the other Loan Documents (as defined
therein); provided, however, that such Liens are subordinated to the Liens
created pursuant to the Loan Documents in accordance with the terms of the
Intercreditor Agreement."
(iii) Section 7. 9 (Limitations on Restrictions on Subsidiary
Distributions; No New Negative Pledge) of the Credit Agreement is hereby amended
by deleting the word "and" immediately before clause (j) and inserting a new
clause (k) immediately after the end of clause (j) to read in its entirety as
follows:
" and (k) the Second Lien Credit Agreement and the Loan
Documents (as defined therein),"
(d) AMENDMENT TO EXHIBITS.
(i) The list of Exhibits to the Credit Agreement is hereby
amended by adding a new Exhibit J (Form of Intercreditor Agreement) immediately
after Exhibit I which shall be in the form of Annex I attached hereto.
SECTION 2. SUPPLEMENTS TO CREDIT AGREEMENT SCHEDULES. The Borrower
has attached hereto Schedules 2.3, 4.2, 4.3, 4.6, 4.16(a), 4.16(b), 7.1 and 7.2
to the Credit Agreement, which Schedules have been amended and restated in their
entirety, and the undersigned hereby certifies, as of the date first above
written, that such Schedules are complete in all material respects.
SECTION 3. CONDITIONS TO EFFECTIVENESS. This Amendment (including
each provision hereof) shall become effective on the date (the "Amendment
Effective Date") on which all of the following conditions precedent have first
been satisfied:
(a) the Administrative Agent shall have received counterparts of
this Amendment executed by the Borrower and the Requisite Lenders or, as to any
of the Lenders, evidence satisfactory to the Administrative Agent that such
Lender has executed this Amendment;
(b) each Subsidiary Guarantor shall have executed a consent to this
Amendment in the form attached hereto;
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(c) the Administrative Agent, the Second Lien Agent, the Collateral
Agent, the Borrower and each Subsidiary Guarantor shall have executed the
intercreditor agreement, substantially in the form of Annex I attached hereto;
(d) the Closing Date shall have occurred under the Second Lien
Credit Agreement;
(e) the Administrative Agent shall have received a Guaranty
Supplement duly executed by Unitive, Inc and Unitive Electronics, Inc.;
(f) the Administrative Agent shall have received counterparts of
Amendment No. 1 to the Pledge and Security Agreement (the "Pledge and Security
Amendment") executed by each Grantor party thereto and consented to by the
Requisite Lenders, in form and substance reasonably satisfactory to the
Administrative Agent, together with such documents duly executed by each Loan
Party as the Administrative Agent may request with respect to the perfection of
its security interests in the Collateral (including financing statements under
the UCC, patent, trademark and copyright security agreements suitable for filing
with the Patent and Trademark Office or the Copyright Office, as the case may
be, and other applicable documents under the laws of any jurisdiction with
respect to the perfection of Liens created under the Pledge and Security
Amendment on the Collateral of Unitive, Inc. and Unitive Electronics, Inc.);
(g) the Borrower shall deliver or shall cause to be delivered to the
Administrative Agent all Pledged Stock, Pledged Debt Instruments and all other
Stock, Stock Equivalents and other debt Securities being pledged with respect to
Unitive, Inc., Unitive Electronics, Inc. and Unitive International, Ltd.,
together with (i) in the case of certificated Pledged Stock and other
certificated Stock and Stock Equivalents, undated stock powers endorsed in blank
and (ii) in the case of Pledged Debt Instruments and other certificated debt
Securities, endorsed in blank, in each case executed and delivered by a
Responsible Officer of such Loan Party or such Subsidiary thereof, as the case
may be;
(h) the Administrative Agent shall have received a Korean law
securities pledge agreement with respect to the AT Korea Bonds duly executed by
the Borrower together with (i) each guarantee thereof by certain Subsidiaries of
the Borrower and (ii) a favorable legal opinion of counsel to the Loan Parties
in Korea addressed to the Administrative Agent and addressing such other matters
as any Lender through the Administrative Agent may reasonably request;
(i) the Administrative Agent shall have received a supplement to the
Cayman Share Mortgage duly executed by the parties thereto in form and substance
reasonably satisfactory to the Administrative Agent; and
(j) the Administrative Agent shall have received a favorable opinion
of counsel to the Borrower and each Guarantor.
Furthermore this Amendment is subject to the provisions of Section 10.1 of the
Credit Agreement.
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SECTION 4. CONSTRUCTION WITH THE LOAN DOCUMENTS.
(a) On and after the Amendment Effective Date, each reference in the
Credit Agreement to "this Agreement," "hereunder," "hereof," "herein," or words
of like import, and each reference in the other Loan Documents to the Credit
Agreement, shall mean and be a reference to the Credit Agreement as amended
hereby, and this Amendment and the Credit Agreement shall be read together and
construed as a single instrument. The table of contents, signature pages and
list of Exhibits and Schedules of the Credit Agreement shall be modified as
necessary to reflect the changes made in this Amendment as of the Amendment
Effective Date.
(b) Except as expressly amended hereby or specifically waived above,
all of the terms and provisions of the Credit Agreement and all other Loan
Documents are and shall remain in full force and effect and are hereby ratified
and confirmed.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of the Lenders, the Issuers, the Arranger or the
Administrative Agent under any of the Loan Documents, nor constitute a waiver or
amendment of any other provision of any of the Loan Documents or for any purpose
except as expressly set forth herein.
(d) This Amendment is a Loan Document.
SECTION 5. GOVERNING LAW. This Amendment is governed by the law of
the State of New York.
SECTION 6. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents and warrants that each of the representations and warranties made by
the Borrower in the Credit Agreement, as amended hereby, and the other Loan
Documents to which the Borrower is a party or by which the Borrower is bound,
shall be true and correct in all material respects on and as of the date hereof
(other than representations and warranties in any such Loan Document which
expressly speak as of a specific date, which shall have been true and correct in
all material respects as of such specific date) and no Default or Event of
Default has occurred and is continuing as of the date hereof.
SECTION 7. EXECUTION IN COUNTERPARTS. This Amendment may be executed
in any number of counterparts and by different parties in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Signature
pages may be detached from multiple separate counterparts and attached to a
single counterpart so that all signature pages are attached to the same
document. Delivery of an executed counterpart by telecopy shall be effective as
delivery of a manually executed counterpart of this Amendment.
[SIGNATURE PAGES FOLLOW]
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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.,
By /s/ XXXXXXX X. XXXXX
____________________________________
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
CITICORP NORTH AMERICA, INC.,
as Administrative Agent and Lender
By /s/ XXXXXX XXX
____________________________________
Name: Xxxxxx Xxx
Title: Vice President
CITIBANK, N.A.,
as Issuer
By /s/ XXXXXX XXX
____________________________________
Name: Xxxxxx Xxx
Title: Vice President
JPMORGAN CHASE BANK,
as Lender
By /s/ XXXXXXX X. XXXXXXXX
____________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
XXXXXXX XXXXX CAPITAL CORPORATION,
as Lender
By /s/ XXXXXXX X. XXXXXXX
____________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Director
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO AMKOR TECHNOLOGY INC. CREDIT AGREEMENT]
CONSENT OF SUBSIDIARY GUARANTOR
Dated as of October 27, 2004
Each of the undersigned corporations, as a Guarantor under the
Guaranty dated June 29, 2004 (the "Guaranty") in favor of the Secured Parties
under the Credit Agreement referred to in the foregoing Amendment, hereby
consents to such Amendment and hereby confirms and agrees that notwithstanding
the effectiveness of such Amendment, the Guaranty is, and shall continue to be,
in full force and effect and is hereby ratified and confirmed in all respects,
except that, on and after the effectiveness of such Amendment, each reference in
the Guaranty to the "Credit Agreement", "thereunder", "thereof" or words of like
import shall mean and be a reference to the Credit Agreement, as amended by such
Amendment.
GUARDIAN ASSETS, INC.
By /s/ XXXXXXX X. XXXXX
__________________________________
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
UNITIVE, INC.
By /s/ XXXXXX XXXXXXX
__________________________________
Name: Xxxxxx Xxxxxxx
Title: Chief Financial Officer
UNITIVE ELECTRONICS, INC.
By /s/ XXXXXX XXXXXXX
__________________________________
Name: Xxxxxx Xxxxxxx
Title: Chief Financial Officer
