LIMITED WAIVER OF LOAN AND SECURITY AGREEMENT
Exhibit 10.1
THIS LIMITED WAIVER OF LOAN AND SECURITY AGREEMENT (this “Agreement”), dated as of
September 25, 2006 (the “Waiver 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 (the “Agent”).
RECITALS:
WHEREAS, 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”); and
WHEREAS, the Borrower has advised the Lenders that a default may have occurred and exist under
its Material Contracts as more fully set forth in the Consent Solicitation Statements, dated
September 14, 2006 (as may be amended, supplemented or replaced, the “Consent
Solicitations”), soliciting consents to certain “Proposed Waivers” from the holders of certain
of Amkor’s senior notes, senior subordinated notes, convertible senior subordinated notes and
convertible subordinated notes constituting Material Contracts as a result of Amkor’s failure to
file with the Securities and Exchange Commission (the “SEC”) prior to the applicable
deadline specified in the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and to
deliver to the applicable trustee and the holders of such notes a copy of, any report or other
information as it would be required to file with the SEC under Section 13(a) or 15(d) of the
Exchange Act (including, without limitation, its quarterly report on Form 10-Q for the quarterly
period ended June 30, 2006 (the “Form 10-Q”) and any related notices or reports
(collectively, the “SEC Reports”); and
WHEREAS, one of the representations of the Borrowers in Section 9 of the Loan and Security
Agreement (specifically Section 9.1.18 thereof) is that no default exists under any Material
Contract; and
WHEREAS, Section 6.2 of the Loan and Security Agreement provides that it is a condition
precedent (among others) to the funding of any Revolving Loans, the issuance of any Letters of
Credit or grant of any other accommodation to or for the benefit of the Borrowers that all of the
representations and warranties of each Obligor in the Loan Documents shall be true and correct on
the date of, and upon the giving effect to, such funding, issuance or grant (the “Condition
Precedent”); and
WHEREAS, the Borrowers have requested that the Lenders agree to waive the Condition Precedent
to permit current credit extensions under the Loan and Security Agreement to the limited extent
specifically provided hereinbelow; and
WHEREAS, subject to satisfaction of the conditions set forth herein, the Requisite Lenders are
willing to waive to the limited extent set forth herein the Condition Precedent;
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 Agreement, capitalized
terms used in this Agreement shall have the same meanings herein as set forth in the Loan and
Security Agreement.
ARTICLE 2
Section 2.1 Waiver. The Lenders waive the Condition Precedent to the extent, and only
to the extent, that such failure to meet all of the conditions precedent to current credit
extensions required by the Loan and Security Agreement results solely from (i) the failure of Amkor
to file with the SEC prior to the applicable deadline specified in the Exchange Act, and provide
copies thereof to the holders of its debt securities (or their representative trustees), the SEC
Reports on or before the “Waiver Expiration Date” (as such term is defined in the Consent
Solicitations) (the “SEC Reporting Waiver”), and (ii) the non-reliance on any financial statements
delivered to the Agent or the Lenders at any time prior to the Waiver Date by reason of the
restatement of Borrowers’ financial statements due to certain accounting errors related to Amkor’s
historical stock option grant practices (the “Restatement Waiver” and together with the SEC
Reporting Waiver, the “Limited Waiver”).
Section 2.2 Limitation of Waiver. The Limited Waiver granted in Section 2.1
of this Agreement shall be: (i) effective conditioned upon fulfillment of the conditions provided
in Article 3 below; and (ii) limited strictly as written and shall not be deemed to
constitute a waiver of, or any consent to noncompliance with, any term, condition or provision of
the Loan and Security Agreement or any other Loan Document except as expressly set forth herein.
Further, the SEC Reporting Waiver granted in Section 2.1 of this Agreement shall not
constitute a waiver of and shall immediately terminate and expire on the Waiver Expiration Date or
upon the occurrence of any Default or Event of Default. The Restatement Waiver shall remain in
effect from the Waiver Date to and including the Termination Date. The Limited Waiver shall not
constitute a waiver of any rights, remedies, powers or privileges of the Agent or any Lender
arising as a result of any such Default or Event of Default. The Lenders hereby acknowledge that
the failure of Amkor to file the Form 10-Q with the SEC prior to the applicable deadline specified
in the Exchange Act does not constitute a Default.
ARTICLE 3
Conditions
Section 3.1 Conditions Precedent. The effectiveness of this Agreement from the date
hereof through October 10, 2006 is subject to the satisfaction of the following conditions
precedent:
(a) no Default or Event of Default shall be in existence as of the Waiver Date;
(b) the Agent shall have received a fully executed copy of this Agreement from
Borrowers and the Requisite Lenders;
(c) Payment by the Borrowers to the Agent of all fees, costs, and expenses owed to
and/or incurred by the Agent in connection with the Loan and Security Agreement or this
Agreement; and
(d) Payment by the Borrower to the Agent, for the account of each Lender, a fee in
respect of the waiver granted and agreed to herein in the amount of 10 basis points of each
Lender’s Revolving Commitment.
Section 3.2 Conditions Subsequent. The continuing effectiveness of the SEC Reporting
Waiver for the period from October 10, 2006, through December 31, 2006, is subject, in addition to
each other provision hereof, to payment by the Borrower to the Agent on or before October 10, 2006,
for the account of each Lender, a fee in respect of the continuing waiver granted and agreed to
herein in the amount of 15 basis points of each Lender’s Revolving Commitment, and the continuing
effectiveness of the SEC Reporting Waiver for the period from December 31, 2006, through and
including March 31, 2007, is subject, in addition to each other provision hereof, to payment by the
Borrower to the Agent on or before December 31, 2006, for the account of each Lender, a fee in
respect of the continuing waiver granted and agreed to herein in the amount of 25 basis points of
each Lender’s Revolving Commitment.
ARTICLE 4
Ratifications, Representations, and Warranties
Section 4.1 Ratifications. The terms and provisions set forth in this Agreement 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 waived by this Agreement, 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 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
Agreement 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 or the
terms or provisions of any Material Contract, (b) the representations and warranties of the
Borrowers contained in the Loan and Security Agreement (other than in respect of the absence of any
defaults under Material Contracts to the extent described in the Consent Solicitations and the
non-reliance on any financial statements delivered to the Agent or the Lenders at anytime prior to
the Waiver date, and except to the extent such representations and warranties are not true as a
result of the failure of Amkor to file the SEC Reports with the SEC and provide copies thereof to
the holders of its debt securities (or their representative trustees)), and any other Loan Document
are true and correct on and as of the Waiver Date as though made on and as of the Waiver Date
(except to the extent that such representations and warranties were expressly made only in
reference to a specific date), and (c) 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 Agreement or any other Loan Document including any Loan Document furnished
in connection with this Agreement shall survive the execution and delivery of this Agreement 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 Severability. Any provision in this Agreement 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 Agreement are declared to be severable.
Section 5.3 Release. TO INDUCE THE AGENT AND THE LENDERS TO AGREE TO THE TERMS OF
THIS AGREEMENT, THE BORROWERS REPRESENT AND WARRANT THAT AS OF THE DATE OF THIS AGREEMENT THERE ARE
NO CLAIMS OR OFFSETS AGAINST OR DEFENSES OR COUNTERCLAIMS TO THEIR OBLIGATIONS UNDER THE LOAN AND
SECURITY AGREEMENT AND THE OTHER LOAN DOCUMENTS, AND WAIVE ANY AND ALL SUCH CLAIMS, OFFSETS,
DEFENSES, OR COUNTERCLAIMS, WHETHER KNOWN OR UNKNOWN, ARISING PRIOR TO THE DATE OF THIS AGREEMENT
AND RELEASE AND DISCHARGE THE AGENT AND EACH LENDER, AND ITS RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, SHAREHOLDERS, AFFILIATES, AND ATTORNEYS (COLLECTIVELY THE “RELEASED
PARTIES”) FROM ANY AND ALL OBLIGATIONS, INDEBTEDNESS, LIABILITIES, CLAIMS, RIGHTS, CAUSES OF
ACTION, OR DEMANDS WHATSOEVER, WHETHER KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, IN LAW OR
EQUITY, WHICH ANY BORROWER NOW HAS OR MAY HAVE AGAINST ANY RELEASED PARTY ARISING PRIOR TO THE DATE
HEREOF
AND FROM OR IN CONNECTION WITH THE LOAN AND SECURITY AGREEMENT, THE OTHER LOAN DOCUMENTS, OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 5.4 Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE
OF NEW YORK, PROVIDED THAT IN THE EVENT ANY 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 Agreement 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 Agreement 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 Agreement by signing any such counterpart and a telecopy of any such
executed signature page shall be valid as an original. This Agreement shall be effective when it
has been executed by the Borrowers, the Agent, and the Requisite Lenders.
Section 5.7 Effect of Limited Waiver. Except to the limited extent expressly set
forth herein, 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 Agreement shall not limit or diminish the obligations of
the Borrowers under the Loan Documents delivered in connection with the Loan and Security
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 Agreement and the other Loan Documents.
Section 5.9 Headings. The headings, captions, and arrangements used in this Agreement
are for convenience only and shall not affect the interpretation of this Agreement.
Section 5.10 Entire Agreement. THIS AGREEMENT AND ALL OTHER INSTRUMENTS, DOCUMENTS,
AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS AGREEMENT 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 AGREEMENT, 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.
Section 5.11 Limited Waiver as a Loan Document. This Agreement constitutes a Loan
Document and any failure of the Borrowers to comply with the terms and conditions of this Agreement
shall result in a Default (which may thereafter constitute an Event of Default as provided therein)
under the Loan and Security Agreement.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties have entered into this Agreement on the date first above
written.
| BORROWERS: | ||||||
| AMKOR TECHNOLOGY, INC. | ||||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||||
| Name: | Xxxxxxx X. Xxxxx | |||||
| Title: | Executive Vice President and CFO | |||||
| UNITIVE, INC. | ||||||
| By: | /s/ Xxxxxx Xxxxxxx | |||||
| Name: | Xxxxxx Xxxxxxx | |||||
| Title: | Treasurer | |||||
| UNITIVE ELECTRONICS, INC. | ||||||
| By: | /s/ Xxxxxx Xxxxxxx | |||||
| Name: | Xxxxxx Xxxxxxx | |||||
| Title: | Treasurer | |||||
| AGENT: | ||||||
| BANK OF AMERICA, N.A. | ||||||
| By: | /s/ Xxx X. Xxxxxxxxxxx | |||||
| Name: | Xxx X. Xxxxxxxxxxx | |||||
| Title: | Senior Vice President | |||||
LIMITED WAIVER OF LOAN AND SECURITY AGREEMENT — Page 8
| 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: | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Director | |||
| TEXTRON FINANCIAL CORPORATION | ||||
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |||
| Name: | Xxxxxx X. Xxxxxx, Xx. | |||
| Title: | Senior Account Executive | |||
LIMITED WAIVER OF LOAN AND SECURITY AGREEMENT — Page 9
