AMKOR TECHNOLOGY, INC., as Borrower AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT dated as of April 16, 2009 CERTAIN FINANCIAL INSTITUTIONS, as Lenders, BANK OF AMERICA, N.A., as Agent, and WACHOVIA CAPITAL FINANCE CORPORATION (WESTERN), as...
Exhibit 10.1
AMKOR TECHNOLOGY, INC.,
as Borrower
as Borrower
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
LOAN AND SECURITY AGREEMENT
dated as of April 16, 2009
$100,000,000
CERTAIN FINANCIAL INSTITUTIONS,
as Lenders,
as Lenders,
BANK OF AMERICA, N.A.,
as Agent,
as Agent,
and
WACHOVIA CAPITAL FINANCE CORPORATION (WESTERN),
as Documentation Agent
as Documentation Agent
BANK OF AMERICA, N.A.
Lead Arranger and Book Manager
Lead Arranger and Book Manager
TABLE OF CONTENTS
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SECTION 1. | DEFINITIONS; RULES OF CONSTRUCTION
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1 | ||||||
1.1. | Definitions
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1 | ||||||
1.2. | Accounting Terms
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33 | ||||||
1.3. | Certain Matters of Construction
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34 | ||||||
SECTION 2. | CREDIT FACILITIES
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34 | ||||||
2.1. | Revolving Commitment
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34 | ||||||
2.2. | Reserved
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37 | ||||||
2.3. | Letter of Credit Facility
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37 | ||||||
SECTION 3. | INTEREST, FEES, AND CHARGES
|
39 | ||||||
3.1. | Interest |
39 | ||||||
3.2. | Fees
|
41 | ||||||
3.3. | Computation of Interest, Fees, Yield Protection
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41 | ||||||
3.4. | Reimbursement Obligations
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42 | ||||||
3.5. | Illegality
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42 | ||||||
3.6. | Increased Costs
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42 | ||||||
3.7. | Capital Adequacy
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43 | ||||||
3.8. | Mitigation
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43 | ||||||
3.9. | Funding Losses
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43 | ||||||
3.10. | Maximum Interest
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44 | ||||||
SECTION 4. | LOAN ADMINISTRATION
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44 | ||||||
4.1. | Manner of Borrowing and Funding Revolving Loans
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44 | ||||||
4.2. | Defaulting Lender
|
46 | ||||||
4.3. | Number and Amount of LIBOR Revolving Loans; Determination of Rate
|
46 | ||||||
4.4. | Borrower Agent
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47 | ||||||
4.5. | One Obligation
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47 | ||||||
4.6. | Effect of Termination
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47 | ||||||
SECTION 5. | PAYMENTS
|
47 | ||||||
5.1. | General Payment Provisions
|
47 | ||||||
5.2. | Repayment of Revolving Loans
|
48 | ||||||
5.3. | Reserved.
|
48 | ||||||
5.4. | Payment of Other Obligations
|
48 | ||||||
5.5. | Marshaling; Payments Set Aside
|
48 | ||||||
5.6. | Post-Default Allocation of Payments
|
48 | ||||||
5.7. | Application of Payments
|
49 | ||||||
5.8. | Loan Account; Account Stated
|
49 | ||||||
5.9. | Taxes
|
50 | ||||||
5.10. | Lender Tax Information
|
50 | ||||||
5.11. | Nature and Extent of Each Borrower’s Liability
|
51 | ||||||
SECTION 6. | CONDITIONS PRECEDENT
|
53 | ||||||
6.1. | Conditions Precedent to Initial Revolving Loans
|
53 | ||||||
6.2. | Conditions Precedent to All Credit Extensions
|
55 | ||||||
6.3. | Limited Waiver of Conditions Precedent
|
55 | ||||||
SECTION 7. | COLLATERAL
|
56 | ||||||
7.1. | Grant of Security Interest
|
56 |
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Page | ||||||||
7.2. | Lien on Deposit Accounts; Cash Collateral |
57 | ||||||
7.3. | Real Estate Collateral |
57 | ||||||
7.4. | Other Collateral |
57 | ||||||
7.5. | No Assumption of Liability |
58 | ||||||
7.6. | Further Assurances |
58 | ||||||
7.7. | Continuation of Existing Liens |
58 | ||||||
SECTION 8. | COLLATERAL ADMINISTRATION |
58 | ||||||
8.1. | Borrowing Base Certificates |
58 | ||||||
8.2. | Administration of Accounts |
58 | ||||||
8.3. | Administration of Inventory |
59 | ||||||
8.4. | Administration of Equipment |
60 | ||||||
8.5. | Administration of Deposit Accounts |
60 | ||||||
8.6. | General Provisions |
60 | ||||||
8.7. | Power of Attorney |
61 | ||||||
SECTION 9. | REPRESENTATIONS AND WARRANTIES |
62 | ||||||
9.1. | General Representations and Warranties |
62 | ||||||
9.2. | Complete Disclosure |
66 | ||||||
SECTION 10. | COVENANTS AND CONTINUING AGREEMENTS |
66 | ||||||
10.1. | Affirmative Covenants |
66 | ||||||
10.2. | Negative Covenants |
69 | ||||||
10.3. | Fixed Charge Coverage Ratio |
79 | ||||||
SECTION 11. | EVENTS OF DEFAULT; REMEDIES ON DEFAULT |
80 | ||||||
11.1. | Events of Default |
80 | ||||||
11.2. | Remedies upon Default |
81 | ||||||
11.3. | License |
82 | ||||||
11.4. | Setoff |
82 | ||||||
11.5. | Remedies Cumulative; No Waiver |
82 | ||||||
SECTION 12. | THE AGENT |
83 | ||||||
12.1. | Appointment, Authority and Duties of the Agent |
83 | ||||||
12.2. | Agreements Regarding Collateral and Field Examination Reports |
84 | ||||||
12.3. | Reliance By the Agent |
85 | ||||||
12.4. | Action Upon Default |
85 | ||||||
12.5. | Ratable Sharing |
85 | ||||||
12.6. | Indemnification of the Agent Indemnitees |
86 | ||||||
12.7. | Limitation on Responsibilities of the Agent |
86 | ||||||
12.8. | Successor Agent and Co-Agents |
86 | ||||||
12.9. | Due Diligence and Non-Reliance |
87 | ||||||
12.10. | Replacement of Certain Lenders |
87 | ||||||
12.11. | Remittance of Payments and Collections |
88 | ||||||
12.12. | The Agent in its Individual Capacity |
88 | ||||||
12.13. | Documentation Agent |
89 | ||||||
12.14. | No Third Party Beneficiaries |
89 | ||||||
SECTION 13. | BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS |
89 | ||||||
13.1. | Successors and Assigns |
89 | ||||||
13.2. | Participations |
89 | ||||||
13.3. | Assignments |
90 | ||||||
13.4. | Tax Treatment |
90 | ||||||
13.5. | Representation of Lenders |
90 |
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SECTION 14. | MISCELLANEOUS |
90 | ||||||
14.1. | Consents, Amendments and Waivers |
90 | ||||||
14.2. | General Indemnity |
91 | ||||||
14.3. | Limitations of Indemnities |
92 | ||||||
14.4. | Notices and Communications |
92 | ||||||
14.5. | Performance of the Borrowers’ Obligations |
93 | ||||||
14.6. | Credit Inquiries |
93 | ||||||
14.7. | Severability |
93 | ||||||
14.8. | Cumulative Effect; Conflict of Terms |
93 | ||||||
14.9. | Counterparts; Facsimile Signatures |
93 | ||||||
14.10. | Entire Agreement |
93 | ||||||
14.11. | Relationship with Lenders; No Advisory or Fiduciary Responsibility |
93 | ||||||
14.12. | Confidentiality |
94 | ||||||
14.13. | Original Loan Documents |
94 | ||||||
14.14. | Continuation, Amendment and Restatement |
94 | ||||||
14.15. | Certifications Regarding Indebtedness Agreements |
95 | ||||||
14.16. | Governing Law |
95 | ||||||
14.17. | Consent to Forum |
95 | ||||||
14.18. | Waivers by the Borrowers |
95 | ||||||
14.19. | Additional Borrowers |
96 | ||||||
14.20. | Patriot Act Notice |
96 | ||||||
14.21. | No Oral Agreement |
96 |
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LIST OF EXHIBITS AND SCHEDULES
EXHIBITS:
Exhibit A |
Revolving Note | |
Exhibit B |
Notice of Borrowing | |
Exhibit C |
Notice of Conversion/Continuation | |
Exhibit D |
Compliance Certificate | |
Exhibit E |
Assignment and Acceptance | |
Exhibit F |
Assignment Notice | |
Exhibit G |
Original Letters of Credit |
SCHEDULES:
Schedule 1.1A
|
Revolving Commitments of Lenders | |
Schedule 1.1B
|
Eligible Foreign Account Debtors | |
Schedule 1.1C
|
Permitted Liens | |
Schedule 1.1D
|
Owned Real Estate | |
Schedule 8.5
|
Deposit Accounts | |
Schedule 8.6.1
|
Business Locations | |
Schedule 9.1.4
|
Names and Capital Structure | |
Schedule 9.1.5A
|
Former Names | |
Schedule 9.1.5B
|
Former Places of Business | |
Schedule 9.1.12
|
Patents, Trademarks, Copyrights, and Licenses | |
Schedule 9.1.15
|
Environmental Matters | |
Schedule 9.1.16
|
Restrictive Agreements | |
Schedule 9.1.17
|
Litigation | |
Schedule 9.1.21
|
Labor Contracts |
iv
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
LOAN AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT, dated as of April 16, 2009 (the
“Closing Date”), is among AMKOR TECHNOLOGY, INC., any of its Subsidiaries, if any, that
become a party hereto as a Borrower after the Closing Date, the lending institutions party to this
Agreement from time to time as lenders (collectively, the “Lenders”), and BANK OF AMERICA,
N.A., a national banking association, as administrative agent for the Lenders (the
“Agent”).
RECITALS:
The Borrowers have requested that the Lenders make available a credit facility, to be used by
the Borrowers to finance their mutual and collective business enterprise. The Lenders are willing
to provide such credit facility on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for valuable consideration hereby acknowledged, the parties agree as follows:
SECTION 1. DEFINITIONS; RULES OF CONSTRUCTION
1.1. Definitions. As used herein, the following terms have the meanings set forth below:
Account — as defined in the UCC, including all rights to payment for goods
sold or leased, or for services rendered.
Account Debtor — a Person who is obligated under an Account, Chattel Paper, or
General Intangible.
Acquired Indebtedness — with respect to any specified Person (a) Indebtedness
of any other Person existing at the time such other Person is merged with or into or became
a Subsidiary of such specified Person, whether or not such Indebtedness is incurred in
connection with, or in contemplation of, such other Person merging with or into, or becoming
a Subsidiary of, such specified Person and (b) Indebtedness secured by a Lien encumbering
any asset acquired by such specified Person.
Affiliate — with respect to any Person (the “subject Person”) any other Person
directly or indirectly controlling or controlled by or under direct or indirect common
control with the subject Person. For purposes of this definition, “control,” as used with
respect to any Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person, whether through
the ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10.0% or more, or an agreement, obligation, or option to purchase
10.0% or more, of the Equity Interests of a Person that are at such time entitled to vote in
the election of the board of directors (or other similar governing body) of such Person
shall be deemed to be control. For purposes of this definition, the terms “controlling,”
“controlled by,” and “under common control with” shall have correlative meanings.
Affiliate Transaction — as defined in Section 10.2.6.
Agent — as defined in the introductory paragraph of this Agreement.
Agent Advance — any Borrowing of Base Rate Revolving Loans funded with the
Agent’s funds, until such Borrowing is settled among the Lenders pursuant to Section
4.1.3.
Agent Indemnitees — the Agent and its officers, directors, employees,
Affiliates, agents, and attorneys.
Agent Professionals — attorneys, accountants, appraisers, auditors, business
valuation experts, environmental engineers or consultants, turnaround consultants, and other
professionals and experts retained by the Agent.
Agent’s Lien — the Liens in the Collateral granted to the Agent, for the
benefit of the Secured Parties, pursuant to the terms of this Agreement or any Security
Document.
Allocable Amount — as defined in Section 5.11.3.
Amkor — Amkor Technology, Inc., a Delaware corporation.
Anti-Terrorism Laws — any laws relating to terrorism or money laundering,
including the Patriot Act.
Applicable Law — all laws, rules, regulations, and governmental guidelines
applicable to the Person, conduct, transaction, agreement or matter in question, including
all applicable statutory law, common law, and equitable principles, and all provisions of
constitutions, treaties, statutes, rules, regulations, orders, and decrees of Governmental
Authorities.
Applicable Margin — with respect to any Type of Revolving Loan, (a) on any day
on or before September 30, 2009, 2.00% for Base Rate Revolving Loans and 3.50% for LIBOR
Revolving Loans, and (b) on any day after September 30, 2009, the per annum percentage set
forth below, as determined by Average Availability calculated for Borrower for the preceding
completed Fiscal Quarter of Borrower:
Base Rate | LIBOR | |||||||||
Revolving | Revolving | |||||||||
Level | Average Availability for preceding completed Fiscal Quarter | Loans | Loans | |||||||
I
|
Less than $40,000,000 | 2.50 | % | 4.00 | % | |||||
II
|
Greater than or equal to $40,000,000 and equal to or less than $80,000,000 | 2.25 | % | 3.75 | % | |||||
III
|
Greater than $80,000,000 | 2.0 | % | 3.50 | % |
Subject to the terms of this Agreement, the Applicable Margin shall be subject to increase
or decrease, effective as of the first day of the next succeeding Fiscal Quarter following a
completed Fiscal Quarter as provided above.
Approved Fund — any Person (other than a natural person) that is engaged in
making, holding or investing in extensions of credit in its ordinary course of business and
is administered or managed by a Lender, an entity that administers or manages a Lender, or
an Affiliate of either.
Asset Sale — as defined in Section 10.2.5.
2
Assignment and Acceptance — an assignment agreement between a Lender and an
Eligible Assignee, in the form of Exhibit E.
Attributable Debt — in respect of a sale and leaseback transaction involving
an operating lease, at the time of determination, the present value of the obligation of the
lessee for net rental payments during the remaining term of the lease included in such sale
and leaseback transaction including any period for which such lease has been extended or
may, at the option of the lessor, be extended. Such present value shall be calculated using
a discount rate equal to the rate of interest implicit in such transaction, determined in
accordance with GAAP.
Availability — determined as of any date, the amount that the Borrowers are
entitled to borrow as Revolving Loans, being the Borrowing Base, minus the principal
balance of all Revolving Loans.
Average Availability — for any period of a completed Fiscal Quarter, the
average of the daily amount of Availability for such period.
Average Total Usage — an amount, determined on the first day of a calendar
month with respect to the preceding calendar month, equal to the average of the daily
balance of Revolving Loans and stated amount of Letters of Credit during such month.
Bank of America — Bank of America, N.A., a national banking association, and
its successors and assigns.
Bank of America Indemnitees — Bank of America and its officers, directors,
employees, Affiliates, agents, and attorneys.
Bank Product — any of the following products, services, or facilities extended
to any Borrower or Subsidiary by a Lender or any of its Affiliates: (a) Cash Management
Services; (b) products under Hedging Agreements; (c) commercial credit card and merchant
card services; (d) foreign exchange agreements; and (e) leases or other banking products or
services as may be requested by any Borrower or Subsidiary, other than Letters of Credit;
provided, however, that for any of the foregoing to be included as an “Obligation”
for purposes of a distribution under Section 5.6.1, the applicable Secured Party and
Obligor must have previously provided written notice to Agent of (i) the existence of such
Bank Product, (ii) the maximum dollar amount of obligations arising thereunder (“Bank
Product Amount”), and (iii) the methodology to be used by such parties in determining
the Bank Product Debt owing from time to time. The Bank Product Amount may be changed from
time to time upon written notice to Agent by the Secured Party and Obligor. No Bank Product
Amount may be established or increased at any time that a Default or Event of Default
exists, or if a reserve in such amount would cause an Overadvance.
Bank Product Amount — as defined in the definition of Bank Product.
Bank Product Debt — Indebtedness and other obligations of an Obligor relating
to Bank Products.
Bankruptcy Code — Title 11 of the United States Code.
Base Rate — for any day, a per annum rate equal to the greater of (a) the
rate of interest announced by Bank of America from time to time as its prime rate for such
day or (b) LIBOR for a 30 day interest period as determined on such day. The prime rate
described in clause (a)
3
preceding is a reference rate only and Bank of America may
make loans or other extensions of credit at, above, or below such rate of interest. Any
change in the prime rate announced by Bank of America shall take effect at the opening of
business on the effective day specified in the public announcement of the change.
Base Rate Revolving Loan — a Revolving Loan that bears interest based on the
Base Rate.
Beneficial Owner — as assigned to such term in Rule 13d-3 and Rule 13d-5 under
the Exchange Act, except that in calculating the beneficial ownership of any particular
“person” (as such term is used in Section 13(d)(3) of the Exchange Act), such “person” shall
be deemed to have beneficial ownership of all securities that such “person” has the right to
acquire, whether such right is currently exercisable or is exercisable only upon the
occurrence of a subsequent condition.
Board of Governors — the Board of Governors of the Federal Reserve System.
Borrowed Money — with respect to any Obligor, without duplication, its (a)
Indebtedness that (i) arises from the lending of money by any Person to such Obligor, (ii)
is evidenced by notes, drafts, bonds, debentures, credit documents, or similar instruments,
or (iii) was issued or assumed as full or partial payment for Property, (b) Capital Leases,
(c) reimbursement obligations with respect to letters of credit, and (d) guaranties of any
Indebtedness of the foregoing types owing by another Person.
Borrower — Amkor, and any other Restricted Subsidiary of Amkor, if any, that
hereafter becomes a Borrower pursuant to a joinder agreement executed by such Restricted
Subsidiary, Amkor, the Agent and each Lender, in form and substance satisfactory to Agent
and such Lenders.
Borrower Agent — as defined in Section 4.4.
Borrowing — a group of Revolving Loans of one Type that are made on the same
day or are converted into Revolving Loans of one Type on the same day.
Borrowing Base — on any date of determination, subject to the restrictions in
Section 4.09 of each of the Senior Notes Indentures on the Closing Date, an amount equal to
the lesser of (a) the aggregate amount of Revolving Commitments, minus the LC
Reserve, minus Reserves or (b) the result of (i) up to 85.0% of the net amount of
Eligible Accounts and Eligible Foreign Accounts (as used in this definition, “net
amount” means the face amount of an Account, minus any returns, rebates,
discounts (calculated on the shortest terms), credits, allowances, or Taxes (including
sales, excise, and other taxes) that have been or could be claimed by the Account Debtor or
any other Person), minus (ii) the LC Reserve, minus (iii) Reserves.
Borrowing Base Certificate — a certificate, in form and substance reasonably
satisfactory to the Agent, by which the Borrowers certify calculation of the Borrowing Base.
Business Day — any day (a) excluding Saturday, Sunday, and any other day on
which banks are permitted to be closed under the laws of the State of Texas and (b) when
used with reference to a LIBOR Revolving Loan, also excluding any day on which banks do not
conduct dealings in Dollar deposits on the London interbank market.
4
Capital Adequacy Regulation — any law, rule, regulation, guideline, request,
or directive of any central bank or other Governmental Authority, whether or not having the
force of law, regarding capital adequacy of a bank or any Person controlling a bank.
Capital Expenditures — expenditures made by a Borrower or Subsidiary for the
acquisition of any fixed assets, or any improvements, replacements, substitutions, or
additions thereto with a useful life of more than one year, including the principal portion
of Capital Leases.
Capital Lease — any lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP.
Capital Lease Obligation — at time any determination thereof is to be made,
the amount of the liability in respect of a Capital Lease that would at that time be
required to be capitalized on a balance sheet in accordance with GAAP.
Cash Collateral — cash, and any interest or other income earned thereon, that
is delivered to the Agent to Cash Collateralize any Obligations.
Cash Collateral Account — a demand deposit, money market, or other account
established by the Agent at such financial institution as the Agent may select in its
discretion, which account shall be in the Agent’s name and subject to the Agent’s Liens for
the benefit of the Secured Parties.
Cash Collateralize — the delivery of cash to the Agent, as security for the
payment of the Obligations, in an amount equal to (a) with respect to LC Obligations, 110%
of the aggregate LC Obligations and (b) with respect to any inchoate or contingent
Obligations (including Obligations arising under Bank Products), the Agent’s good faith
estimate of the amount due or to become due, including all fees and other amounts relating
to such Obligations. “Cash Collateralization” has a correlative meaning.
Cash Equivalents — (a) Dollars or currency of any other sovereign nation in
which the Borrower or any Restricted Subsidiary conducts business, (b) securities issued or
directly and fully guaranteed or insured by the full faith and credit of the United States
government or any agency or instrumentality thereof having maturities of not more than
twelve months from the date of acquisition, (c) certificates of deposit and eurodollar time
deposits with maturities of twelve months or less from the date of acquisition, bankers’
acceptances with maturities not exceeding twelve months and overnight bank deposits, in each
case with (i) any domestic commercial bank having capital and surplus in excess of
$500,000,000 and a Fitch Individual Rating (formerly Xxxxxxxx Bank Watch Rating) of “B” or
better, or (ii) any commercial bank organized under the laws of any foreign country
recognized by the United States having capital and surplus in excess of $500,000,000 (or the
foreign currency equivalent thereof) and a Fitch Individual Rating (formerly Xxxxxxxx Bank
Watch Rating) of “B” or better, (d) repurchase obligations with a term
of not more than seven days for underlying securities of the types described in
clause (b) and clause (c) preceding entered into with any financial
institution meeting the qualifications specified in clause (c) preceding, (e)
commercial paper having the highest rating obtainable from either Xxxxx’x or S&P and, in
each case, maturing within six months after the date of acquisition, and (f) money market
funds at least 95.0% of the assets of which constitute Cash Equivalents of the kinds
described in clause (a) through clause (e) of this definition,
provided that (w) the currency of any sovereign nation other than the United States,
(x) certificates of deposit, eurodollar time deposits, and bankers’ acceptances with any
commercial bank organized under the laws of any country other than the United States, (y)
repurchase obligations entered into with
5
any financial institution organized under the laws
of any country other than the United States, and (z) overnight bank deposits with any
commercial bank organized under the laws of any country other than the United States shall
not be considered “Cash Equivalents” for purposes of determining whether an Asset Sale is
permitted pursuant to Section 10.2.5.
Cash Management Services — any services provided from time to time by Bank of
America, any other Lender or any of their respective Affiliates to any Borrower or
Subsidiary in connection with operating, collections, payroll, trust, or other depository or
disbursement accounts, including automated clearinghouse, e-payable, controlled
disbursement, depository, electronic funds transfer, information reporting, lockbox, stop
payment, overdraft, and/or wire transfer services.
CERCLA — the Comprehensive Environmental Response Compensation and Liability
Act (42 U.S.C. § 9601 et seq.).
Change of Control — the occurrence of any of the following: (a) the adoption
of a plan relating to the liquidation or dissolution of any Borrower, (b) the consummation
of any transaction (including, without limitation, any merger or consolidation) the result
of which is that any Person, other than a Permitted Holder, becomes the Beneficial Owner,
directly or indirectly, of more than 35.0% of the Voting Stock of Amkor, measured by voting
power rather than number of shares, and such percentage represents more than the aggregate
percentage of the Voting Stock of Amkor, measured by voting power rather than number of
shares, as to which any Permitted Holder is the Beneficial Owner, or (c) the first date
during any consecutive two year period on which a majority of the members of the board of
directors of Amkor are not Continuing Directors. For purposes of this definition, any
transfer of an Equity Interest of any Person that was formed for the purpose of acquiring
Voting Stock of Amkor will be deemed to be a transfer of such portion of Voting Stock as
corresponds to the portion of the equity of such Person that has been so transferred.
Change in Law: the occurrence, after the date hereof, of (a) the adoption or
taking effect of any law, rule, regulation or treaty; (b) any change in any law, rule,
regulation or treaty or in the administration, interpretation or application thereof by any
Governmental Authority; or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
Chattel Paper — as defined in the UCC.
Claims — all liabilities, obligations, losses, damages, penalties, judgments,
proceedings, costs, and expenses of any kind (including remedial response costs, reasonable
attorneys’ fees, and Extraordinary Expenses) at any time (including after Full Payment of
the Obligations, resignation or replacement of the Agent, or replacement of any Lender)
incurred by or asserted
against any Indemnitee in any way relating to (a) any Loan Documents or transactions
relating thereto, (b) any action taken or omitted to be taken by any Indemnitee in
connection with any Loan Documents, (c) the existence or perfection of any Liens, or
realization upon any Collateral, (d) exercise of any rights or remedies under any Loan
Documents or Applicable Law, or (e) failure by any Obligor to perform or observe any terms
of any Loan Document, in each case including all costs and expenses relating to any
investigation, litigation, arbitration, or other proceeding (including an Insolvency
Proceeding or appellate proceedings), whether or not the applicable Indemnitee is a party
thereto.
6
Closing Date — has the meaning prescribed for such term in the preamble of
this Agreement.
Collateral — all Property described in Section 7.1, all Property
described in any Security Documents as security for any Obligations, and all other Property
that now or hereafter secures (or is intended to secure) any Obligations.
Commercial Tort Claim — as defined in the UCC.
Compliance Certificate — a Compliance Certificate to be provided by the
Borrowers to the Agent pursuant to this Agreement, in the form of Exhibit D, and all
supporting schedules.
Consolidated Cash Flow — with respect to any Person for any period, the
Consolidated Net Income of such Person for such period, plus (a) an amount equal to
any extraordinary loss, plus any net loss realized in connection with an Asset Sale,
to the extent such losses were deducted in computing such Consolidated Net Income,
plus (b) provision for taxes based on income or profits of such Person and its
Restricted Subsidiaries for such period, to the extent that such provision for taxes was
deducted in computing such Consolidated Net Income, plus (c) consolidated interest
expense of such Person and its Restricted Subsidiaries for such period, whether paid or
accrued and whether or not capitalized (including, without limitation, amortization of debt
issuance costs and original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, imputed interest with respect to Attributable
Debt, commissions, discounts, and other fees and charges incurred in respect of letter of
credit or bankers’ acceptance financings, and net payments, if any, pursuant to Hedging
Obligations), to the extent that any such expense was deducted in computing such
Consolidated Net Income, plus (d) depreciation, amortization (including amortization
of goodwill and other intangibles but excluding amortization of prepaid cash expenses that
were paid in a prior period), and other non-cash expenses (excluding any such non-cash
expense to the extent that it represents an accrual of or reserve for cash expenses in any
future period or amortization of a prepaid cash expense that was paid in a prior period) of
such Person and its Restricted Subsidiaries for such period to the extent that such
depreciation, amortization, and other non-cash expenses were deducted in computing such
Consolidated Net Income, plus (e) non-cash items (other than any non-cash items that
will require cash payments in the future or that relate to foreign currency translation)
decreasing such Consolidated Net Income for such period, other than items that were accrued
in the ordinary course of business, in each case, on a consolidated basis and determined in
accordance with GAAP, minus (f) non-cash items (other than any non-cash items that
will require cash payments in the future or that relate to foreign currency translation)
increasing such Consolidated Net Income for such period, other than items that were accrued
in the ordinary course of business, in each case, on a consolidated basis and determined in
accordance with GAAP. Notwithstanding the foregoing, the provision for taxes based on the
income or profits of,
and the depreciation and amortization and other non-cash charges of, a Restricted
Subsidiary of Amkor shall be added to Consolidated Net Income to compute Consolidated Cash
Flow of Amkor only to the extent that a corresponding amount would be permitted at the date
of determination to be dividended to Amkor by such Restricted Subsidiary without prior
approval (that has not been obtained), pursuant to the terms of its charter and all
agreements, instruments, judgments, decrees, orders, statutes, rules, and governmental
regulations applicable to that Subsidiary or its stockholders.
Consolidated Interest Expense — with respect to any Person for any period, the
sum, without duplication, of (a) the consolidated interest expense of such Person and its
Restricted
7
Subsidiaries for such period, whether paid or accrued, including, without
limitation, amortization of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations, imputed interest with
respect to Attributable Debt, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers’ acceptance financings, and net payments, if any,
pursuant to Hedging Obligations, plus (b) the consolidated interest of such Person
and its Restricted Subsidiaries that was capitalized during such period, plus (c)
interest actually paid by Amkor or any Restricted Subsidiary under any Guarantee of
Indebtedness of another Person, plus (d) the product of all dividend payments,
whether or not in cash, on any series of preferred stock of such Person or any of its
Restricted Subsidiaries, other than dividend payments on Equity Interests payable solely in
Equity Interests of Amkor (other than Disqualified Stock) or to Amkor or a Restricted
Subsidiary of Amkor.
Consolidated Interest Expense Coverage Ratio — with respect to any specified
Person for any period, the ratio of the Consolidated Cash Flow of such Person and its
Restricted Subsidiaries for such period to the Consolidated Interest Expense of such Person
for such period. In the event that the specified Person or any of its Restricted
Subsidiaries incurs, assumes, Guarantees, or redeems any Indebtedness (other than the
Obligations) or issues or redeems preferred stock subsequent to the commencement of the
period for which the Consolidated Interest Expense Coverage Ratio is being calculated but
prior to the date on which the event for which the calculation of the Consolidated Interest
Expense Coverage Ratio is made (the “Calculation Date”), then the Consolidated Interest
Expense Coverage Ratio shall be calculated giving pro forma effect to such incurrence,
assumption, Guarantee, or redemption of Indebtedness, or such issuance or redemption of
preferred stock, as if the same had occurred at the beginning of the applicable four-quarter
reference period. In addition, for purposes of calculating the Consolidated Interest
Expense Coverage Ratio: (a) acquisitions that have been made by the specified Person or any
of its Restricted Subsidiaries, including through mergers or consolidations and including
any related financing transactions, during the four-quarter reference period or subsequent
to such reference period and on or prior to the Calculation Date shall be deemed to have
occurred on the first day of the four-quarter reference period and Consolidated Cash Flow
for such reference period shall be calculated without giving effect to clause (c) of
the proviso set forth in the definition of Consolidated Net Income, (b) the Consolidated
Cash Flow attributable to discontinued operations, as determined in accordance with GAAP,
and operations or businesses disposed of prior to the Calculation Date, shall be excluded,
and (c) the Consolidated Interest Expense attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, shall be excluded, but only to the extent that the obligations giving rise
to such Consolidated Interest Expense will not be obligations of the specified Person or any
of its Restricted Subsidiaries following the Calculation Date.
Consolidated Net Assets — with respect to any specified Person as of any date,
the total assets of such Person as of such date less (a) the total liabilities of
such Person as of such date, (b) the amount of any Disqualified Stock as of such date, and
(c) any minority interests reflected on the balance sheet of such Person as of such date.
Consolidated Net Income — with respect to any specified Person for any period,
the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such
period, on a consolidated basis, determined in accordance with GAAP; provided that:
(a) the Net Income (but not loss) of any Person that is not a Restricted Subsidiary or that
is accounted for by the equity method of accounting shall be included only to the extent of
the amount of dividends or distributions paid in cash to the specified Person or a
Restricted Subsidiary thereof, (b) the Net
8
Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or similar distributions
by that Restricted Subsidiary of that Net Income is not at the date of determination
permitted without any prior governmental approval (that has not been obtained) or, directly
or indirectly, by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to that
Restricted Subsidiary or its stockholders, (c) the Net Income (but not loss) of any
Unrestricted Subsidiary shall be excluded, whether or not distributed to the specified
Person or one of its Subsidiaries, and (d) the cumulative effect of a change in accounting
principles shall be excluded.
Contingent Obligation — any obligation of a Person arising from a guaranty,
indemnity, or other assurance of payment or performance of any Indebtedness, lease,
dividend, or other obligation (as used in this definition, “primary obligations”) of another
obligor (as used in this definition, “primary obligor”) in any manner including any
obligation of such Person under any (a) guaranty, endorsement, co-making, or sale with
recourse of an obligation of a primary obligor, (b) obligation to make take-or-pay or
similar payments regardless of nonperformance by any other party to an agreement, and (c)
arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply
funds for the purchase or payment of any primary obligation, (iii) to maintain or assure
working capital, equity capital, net worth, or solvency of the primary obligor, (iv) to
purchase Property or services for the purpose of assuring the ability of the primary obligor
to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of
any primary obligation against loss in respect thereof. The amount of any Contingent
Obligation shall be deemed to be the stated or determinable amount of the primary obligation
(or, if less, the maximum amount for which such Person may be liable under the instrument
evidencing the Contingent Obligation) or, if not stated or determinable, the maximum
reasonably anticipated liability with respect thereto.
Continuing Directors — as of any date of determination, any member of the
board of directors of Amkor who (a) was a member of such board of directors on the Closing
Date or (b) was nominated for election or elected to such board of directors with the
approval of a majority of the Continuing Directors who were members of such board at the
time of such nomination or election.
Convertible Senior Subordinated Notes — Amkor’s 2.50% Convertible Senior
Subordinated Notes due 2011, issued pursuant to the Convertible Senior Subordinated Notes
Indenture issued pursuant to the Convertible Senior Subordinated Notes (2011) Indenture, and
Amkor’s 6.00% Convertible Senior Subordinated Notes due 2014 issued pursuant to the
Convertible Senior Subordinated Notes (2014) Indenture.
Convertible Senior Subordinated Notes Indentures — the Convertible Senior
Subordinated
Notes (2011) Indenture and the Convertible Senior Subordinated Notes (2014) Indenture.
Convertible Senior Subordinated Notes (2011) Indenture — that certain Indenture
between Amkor and U.S. Bank National Association, as Trustee, dated as of May 26, 2006, as
such Indenture may be amended or supplemented from time to time, relating to Amkor’s 2.50%
Convertible Senior Subordinated Notes due May 15, 2011.
Convertible Senior Subordinated Notes (2014) Indenture — that certain Indenture
between Amkor and U.S. Bank National Association, as Trustee, dated as of April 1, 2009, as
such Indenture may be amended or supplemented from time to time, relating to Amkor’s 6.00%
Convertible Senior Subordinated Notes due April 15, 2014.
9
Convertible Subordinated Notes — Amkor’s 61/4% Convertible Subordinated Notes
due 2013, issued pursuant to the Convertible Subordinated Notes (2013) Indenture.
Convertible Subordinated Notes Indenture — the Convertible Subordinated Notes
(2013) Indenture.
Convertible Subordinated Notes (2013) Indenture — that certain Indenture
between Amkor and U.S. Bank National Association as Trustee, dated as of November 18, 2005,
as such Indenture may be amended or supplemented from time to time, relating to Amkor’s 61/4%
Convertible Subordinated Notes due December 1, 2013.
Copyright Security Agreement — each copyright security agreement pursuant to
which an Obligor grants to the Agent, for the benefit of the Secured Parties, a Lien on such
Obligor’s interests in copyrights, as security for the Obligations.
Credit Facilities — with respect to Amkor or any Subsidiary, one or more debt
facilities or commercial paper facilities with banks or other institutional lenders
providing for revolving credit loans, term loans, notes, receivables financing (including
through the sale of receivables to such lenders or to special purpose entities formed to
borrow from such lenders against such receivables) or letters of credit, in each case, as
amended, restated, modified, renewed, refunded, replaced or refinanced in whole or in part
from time to time.
CWA — the Clean Water Act (33 U.S.C. §§ 1251 et seq.).
Default — an event or condition that, with the lapse of time or giving of
notice, would constitute an Event of Default.
Defaulting Lender — any Lender that (a) fails to make any payment or provide
funds to the Agent or any Borrower as required hereunder or fails otherwise to perform its
obligations under any Loan Document, and such failure is not cured within one Business Day,
or (b) is the subject of any Insolvency Proceeding.
Default Rate — for any Obligation (including, to the extent permitted by law,
interest not paid when due), 2.00%, plus the interest rate otherwise applicable
thereto.
Deposit Account — as defined in the UCC.
Deposit Account Control Agreements — an agreement (a) in form and substance
satisfactory to the Agent, (b) between the Agent and a depository institution which
maintains a
Deposit Account for a Borrower, and (c) which establishes control of such Deposit
Account for purposes of perfection of the Agent’s Lien in such Deposit Account and the funds
held therein.
Designated Account — a deposit account of the Borrowers established with the
Agent or an Affiliate of the Agent, into which the Agent shall fund Revolving Loans
hereunder.
Disqualified Stock — any Equity Interest that, by its terms (or by the terms
of any security into which it is convertible, or for which it is exchangeable, in each case
at the option of the holder thereof), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to the date that is 91
days after the Termination Date. Notwithstanding the preceding sentence, any Equity
Interest that would constitute Disqualified
10
Stock solely because the holders thereof have
the right to require Amkor to repurchase such Equity Interest upon the occurrence of a
change of control or an asset sale shall not constitute Disqualified
Stock if the terms of
such Equity Interest provide that Amkor may not repurchase or redeem any such Equity
Interest pursuant to such provisions unless such repurchase or redemption complies with
Section 10.2.2.
Distribution — (a) any declaration or payment of a distribution, interest, or
dividend on any Equity Interest (other than payment-in-kind); (b) any distribution, advance,
or repayment of Indebtedness to a holder of Equity Interests; or (c) any purchase,
redemption, or other acquisition or retirement for value of any Equity Interest.
Document — as defined in the UCC.
Documentation Agent — Wachovia Capital Finance Corporation (Western), a
California corporation.
Dollars — lawful money of the United States.
Domestic Subsidiary — a Restricted Subsidiary that is (a) formed under the
laws of the United States or a state or territory thereof or (b) as of the date of
determination, treated as a domestic entity or a partnership or a division of a domestic
entity for United States federal income tax purposes, and, in either case, is not owned,
directly or indirectly, by an entity that is not described in clause (a) or
clause (b) preceding.
Dominion Account — a special account established by the Borrowers at Bank of
America or another bank acceptable to the Agent, over which, subject to the terms of
Section 8.2.4, the Agent has exclusive control for withdrawal purposes.
Eligible Account — an Account owing to a Borrower that arises in the Ordinary
Course of Business from the sale of goods or rendition of services, is payable in Dollars
and is deemed by the Agent, in its reasonable credit judgment, to be an Eligible Account.
Without limiting the foregoing, no Account shall be an Eligible Account if (a) it is unpaid
for more than 60 days after the original due date, or more than 90 days after the original
invoice date, (b) 50.0% or more of the Accounts owing by the Account Debtor are not Eligible
Accounts or Eligible Foreign Accounts under any other provision of this definition or the
definition of Eligible Foreign Accounts, (c) when aggregated with other Accounts owing by
the Account Debtor and its Affiliates, it exceeds (i) in the case of each of International
Business Machines Corp., Intel Corporation or Xxxxxxxx Xxxxxxxxxxxx (in each case, together
with their respective subsidiaries),
25.0% of the aggregate Eligible Accounts and Eligible Foreign Accounts and (ii) in the
case of any other Account Debtor, 15.0% of the aggregate Eligible Accounts and Eligible
Foreign Accounts (or, in either such case, (A) such higher percentage with the consent of
the Requisite Lenders or (B) lesser percent as the Agent may determine in its discretion, as
the Agent may establish for any such Account Debtor and its Affiliates from time to time),
(d) it does not conform with a covenant or representation herein, (e) it is owing by a
creditor or supplier, or is otherwise subject to a offset, counterclaim, dispute, deduction,
discount, recoupment, reserve, defense, chargeback, credit, or allowance (but ineligibility
shall be limited to the amount thereof), (f) an Insolvency Proceeding has been commenced by
or against the Account Debtor, or the Account Debtor has failed, has suspended, or ceased
doing business, is liquidating, dissolving, or winding up its affairs, or is not Solvent, or
the Borrower is not able to bring suit or enforce remedies against the Account Debtor
through judicial process, (g) the Account Debtor is organized or has its principal offices
or assets outside the United States, (h) it is owing by a
11
Government Authority, (i) it is
not subject to a duly perfected, first priority Lien in favor of the Agent, or is subject to
any other Lien (except a Permitted Accounts Lien), (j) (i) the goods giving rise to it have
not been delivered to and accepted by the Account Debtor, or (ii) the services giving rise
to it have not been accepted by the Account Debtor or it otherwise does not represent a
final sale, unless, (A) in the case of clause (j)(i) preceding, the Account Debtor
on such Account has instructed such Borrower in writing to deliver such goods to a
designated area at or near such Borrower’s facility or otherwise store such goods for the
account of such Account Debtor and has agreed, pursuant to the terms of the quotation or
purchase order for such Account or by separate agreement, that such delivery or storage
constitutes delivery of such goods by such Borrower, or (B) in the case of clause
(j)(ii) preceding, such Borrower has delivered to the Agent a written agreement signed
by the Account Debtor on such Account authorizing such Borrower to xxxx for such goods or
services, agreeing to pay the invoice for such billing and agreeing not to assert claims or
defenses to payment thereof that might arise with respect to any assembly, test or other
services performed or to be performed by a Borrower or any Affiliate of a Borrower with
respect to such goods after the time of such billing and prior to the time of final shipment
to the Account Debtor, in any such case in form and substance satisfactory to the Agent, (k)
it is evidenced by Chattel Paper or an Instrument of any kind, or has been reduced to
judgment, (l) its payment has been extended, the Account Debtor has made a partial payment,
or it arises from a sale on a cash-on-delivery basis, (m) it arises from a sale to an
Affiliate, or from a sale on a xxxx-and-hold, guaranteed sale, sale-or-return,
sale-on-approval, consignment, or other repurchase or return basis, unless, in the case of
any such xxxx-and-hold arrangement, the Account Debtor on such Account has instructed such
Borrower to deliver such goods to a designated area at or near such Borrower’s facility or
otherwise store such goods for the account of such Account Debtor and has agreed, in the
purchase order for such Account or by separate agreement, that such delivery or storage
constitutes delivery of such goods by such Borrower, in any such case in form and substance
satisfactory to the Agent, (n) it represents a progress billing or retainage, unless, in the
case of a progress billing arrangement, such Borrower has delivered to the Agent a written
agreement signed by the Account Debtor on such Account authorizing such Borrower to progress
xxxx for such goods or services, agreeing to pay the invoice for such billing and agreeing
not to assert claims or defenses to payment thereof, in any such case in form and substance
satisfactory to the Agent, (o) it includes a billing for interest, fees, or late charges,
but ineligibility shall be limited to the extent of such billing, or (p) it arises from a
retail sale to a Person who is purchasing for personal, family, or household purposes.
Eligible Assignee — a Person that is (a) a Lender, a United States-based
Affiliate of a Lender, or an Approved Fund, (b) any other financial institution approved by
the Agent and the Borrower Agent (which approval by the Borrower Agent shall not be
unreasonably withheld or
delayed, and shall be deemed given if no objection is made within two Business Days
after notice of the proposed assignment), that is organized under the laws of the United
States or any state or district thereof, has total assets in excess of $5,000,000,000,
extends asset-based lending facilities in its ordinary course of business, and whose
becoming an assignee would not constitute a prohibited transaction under Section 4975 of
ERISA or any other Applicable Law, and (c) during any Event of Default, any Person
acceptable to the Agent in its discretion.
Eligible Foreign Account — an Account owing to a Borrower from an Account
Debtor that is organized or has its principal offices or assets outside the United States,
that (a) arises in the Ordinary Course of Business from the sale of goods or rendition of
services, (b) is payable in Dollars, (c) is owing from an Account Debtor listed on
Schedule 1.1B or is owing from an Account Debtor acceptable to the Agent and the
Requisite Lenders, each in their discretion, (d) meets all of the requirements in clause
(a) through clause (p) of the definition of Eligible Accounts other than
clause (g) thereof, and (e) is deemed by the Agent in its reasonable credit
12
judgment
to be an Eligible Foreign Account; provided that, (a) the aggregate amount of
Accounts owing from the Account Debtors specified in Part II of Schedule
1.1B or any of their respective Affiliates, when aggregated with other Accounts owing by
such Account Debtors and their respective Affiliates, which exceed 35.0% of the sum of all
Eligible Accounts and Eligible Foreign Accounts shall not be Eligible Foreign Accounts, and
(b) in any event, without the consent of the Agent and the Requisite Lenders, each in their
discretion, any such Accounts owing from the Account Debtors specified in Schedule
1.1B, or any of their respective Affiliates, which when aggregated with other Accounts
owing by such Account Debtors and their respective Affiliates exceed 10.0% of the sum of
Eligible Accounts and Eligible Foreign Accounts, shall not be Eligible Foreign Accounts.
Enforcement Action — any action to enforce any Obligations or Loan Documents
or to realize upon any Collateral (whether by judicial action, self-help, notification of
Account Debtors, exercise of setoff or recoupment, or otherwise).
Environmental Laws — all Applicable Laws (including all programs, permits, and
guidance promulgated by regulatory agencies), relating to public health (but excluding
occupational safety and health, to the extent regulated by OSHA) or the protection or
pollution of the environment, including CERCLA, RCRA, and CWA.
Environmental Notice — any written notice from any Governmental Authority of
any possible noncompliance with, investigation of a possible violation of, litigation
relating to, or potential fine or liability under any Environmental Law, or with respect to
any Environmental Release, environmental pollution or hazardous materials, including any
complaint, summons, citation, order, claim, demand or request for correction, remediation,
or otherwise.
Environmental Release — a release as defined in CERCLA or under any other
Environmental Law.
Equipment — as defined in the UCC, including all machinery, apparatus,
equipment, fittings, furniture, fixtures, motor vehicles, and other tangible personal
Property (other than Inventory), and all parts, accessories, and special tools therefor, and
accessions thereto.
Equity Interest — the interest of any (a) shareholder in a corporation, (b)
partner in a partnership (whether general, limited, limited liability, or joint venture),
(c) member in a limited liability company, (d) any Person holding warrants, options, or
other rights to acquire any equity
security or ownership interest (but excluding any debt security that is convertible
into, or exchangeable for, any equity security or ownership interest), or (e) other Person
having any other form of equity security or ownership interest that confers on a Person the
right to receive a share of the profits and losses of, or distributions of assets of, the
issuing Person.
ERISA — the Employee Retirement Income Security Act of 1974.
Event of Default — as defined in Section 11.1.
Exchange Act — the Securities Exchange Act of 1934.
Excluded Domestic Subsidiaries — Guardian Assets, Inc., a Delaware
corporation, Amkor Technology Limited, a company organized under the laws of the Cayman
Islands, and Amkor Worldwide Services LLC, a Delaware limited liability company.
13
Excluded Taxes — with respect to Agent, any Lender, Issuing Bank or any other
recipient of a payment to be made by or on account of any Obligation, (a) taxes imposed on
or measured by its overall net income (however denominated), and franchise taxes imposed on
it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof)
under the laws of which such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable Lending Office is located;
(b) any branch profits taxes imposed by the United States or any similar tax imposed by any
other jurisdiction in which Borrower Agent is located; (c) any backup withholding tax
required by the Code to be withheld from amounts payable to a Lender that has failed to
comply with Section 5.10; and (d) in the case of a Foreign Lender, any United States
withholding tax that is (i) required pursuant to laws in force at the time such Lender
becomes a Lender (or designates a new Lending Office) hereunder, or (ii) attributable to
such Lender’s failure or inability (other than as a result of a Change in Law) to comply
with Section 5.10, except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new Lending Office (or assignment), to
receive additional amounts from Borrowers with respect to such withholding tax.
Existing Indebtedness — Indebtedness of Amkor and its Restricted Subsidiaries
in existence on the date of this Agreement, until such amounts are repaid.
Extraordinary Expenses — all costs, expenses, or advances that the Agent may
incur during a Default or Event of Default, or during the pendency of an Insolvency
Proceeding of an Obligor, including those relating to (a) any audit, inspection,
repossession, storage, repair, appraisal, insurance, manufacture, preparation or advertising
for sale, sale, collection, or other preservation of or realization upon any Collateral, (b)
any action, arbitration, or other proceeding (whether instituted by or against the Agent,
any Lender, any Obligor, any representative of creditors of an Obligor, or any other Person)
in any way relating to any Collateral (including the validity, perfection, priority, or
avoidability of the Agent’s Liens with respect to any Collateral), any Loan Documents, or
the validity, allowance, or amount of any Obligations, including any lender liability or
other Claims asserted against the Agent or any Lender, (c) the exercise, protection, or
enforcement of any rights or remedies of the Agent in, or the monitoring of, any Insolvency
Proceeding, (d) settlement or satisfaction of any taxes, charges, or Liens with respect to
any Collateral, (e) any Enforcement Action, (f) negotiation and documentation of any
modification, waiver, workout, restructuring, or forbearance with respect to any Loan
Documents or Obligations, or (g) Protective Advances. Such costs, expenses, and advances
include transfer fees, Other Taxes, storage fees, insurance costs, permit fees, utility
reservation and standby fees,
legal fees, appraisal fees, brokers’ fees and commissions, auctioneers’ fees and
commissions, accountants’ fees, environmental study fees, wages and salaries paid to
employees of any Obligor or independent contractors in liquidating any Collateral, and
travel expenses.
Federal Funds Rate — a fluctuating interest rate per annum equal to the
weighted average of the rates on overnight federal funds transactions among members of the
Federal Reserve System arranged by federal funds brokers, as published for the applicable
day (or, if not a Business Day, for the preceding Business Day) by the Federal Reserve Bank
of New York, or if such rate is not so published, the average of the quotations for such day
on such transactions as determined by the Agent.
Fee Letters — (a) the fee letter agreement, dated as of the Closing Date,
among the Agent, the Borrowers and Bank of America and (b) each of the fee letter
agreements, dated as of the Closing Date, among the Agent, the Borrowers and each of the
other Lenders, respectively.
14
Fiscal Quarter — each period of three months, the first of such periods
commencing on the first day of a Fiscal Year.
Fiscal Year — the fiscal year of the Borrowers and the Subsidiaries for
accounting and tax purposes, ending on December 31 of each year.
Fixed Charge Coverage Ratio — with respect to any specified Person for any
period, the ratio of (a) an amount equal to Consolidated Cash Flow minus an amount
equal to any extraordinary gain minus any net gain realized in connection with an
Asset Sale minus any net gain realized in connection with prepayment, retirement or
cancellation of Indebtedness, in each case to the extent any such gains were included in
computing Consolidated Net Income but not excluded in computing Consolidated Cash Flow, to
(b) Fixed Charges, in each case determined for such period for such Person.
Fixed Charges — the sum of (a) Capital Expenditures, (b) interest expense
(other than payment-in-kind), (c) cash taxes, (d) principal payments made on Borrowed Money,
other than payments made with proceeds of Revolving Loans or Permitted Refinancing
Indebtedness, or available cash, or with respect to which Borrower has established a cash
account pursuant to a Dominion Account at Bank of America or an additional reserve against
the Borrowing Base in an amount equal to the amount of such payment, and (e) Distributions
made to the extent permitted by this Agreement.
FLSA — the Fair Labor Standards Act of 1938.
Foreign Lender — any Lender that is organized under the laws of a jurisdiction
other than the laws of the United States, or any state or district thereof.
Foreign Plan — any employee benefit plan or arrangement maintained or
contributed to by any Obligor or Subsidiary that is not subject to the laws of the United
States, or any employee benefit plan or arrangement mandated by a government other than the
United States for employees of any Obligor or Subsidiary.
Foreign Subsidiary — a Subsidiary of Amkor that is not a Domestic Subsidiary.
Full Payment — with respect to any Obligations, (a) the full and indefeasible
cash payment thereof, including all interest, fees, and other charges under any Loan
Documents and including those accruing during an Insolvency Proceeding (whether or not
allowed in the proceeding), (b) if such Obligations are LC Obligations or inchoate or
contingent in nature, Cash Collateralization thereof, and (c) a release of any Claims of the
Obligors against the Agent, the Lenders, and the Issuing Bank arising on or before the
payment date. The Revolving Loans shall not be deemed to have been paid in full until the
Revolving Commitments have expired or been terminated.
GAAP — generally accepted accounting principles in the United States in effect
from time to time.
General Intangibles — as defined in the UCC, including choses in action,
causes of action, contract rights, company or other business records, inventions,
blueprints, designs, patents, patent applications, trademarks, trademark applications, trade
names, trade secrets, service marks, goodwill, brand names, copyrights, registrations,
licenses, franchises, customer lists, permits, tax refund claims, computer programs,
operational manuals, internet addresses and domain names,
15
insurance refunds and premium
rebates, all rights to indemnification, and all other intangible Property of any kind.
Goods — as defined in the UCC.
Governmental Approvals — all authorizations, consents, approvals, licenses and
exemptions of, registrations and filings with, and required reports to, all Governmental
Authorities.
Governmental Authority — any federal, state, municipal, foreign, or other
governmental department, agency, commission, board, bureau, court, tribunal,
instrumentality, political subdivision, or other entity or officer exercising executive,
legislative, judicial, regulatory, or administrative functions for or pertaining to any
government or court, in each case whether associated with the United States, a state,
district, or territory thereof, or a foreign entity or government.
Guarantee — a guarantee other than by endorsement of negotiable instruments
for collection in the ordinary course of business, direct or indirect, in any manner
including, through letters of credit or reimbursement agreements in respect thereof, of all
or any part of any Indebtedness.
Guarantor Payment — as defined in Section 5.11.3.
Guarantor — each Person who guarantees payment or performance of any
Obligations.
Guaranty — each guaranty agreement executed by a Guarantor in favor of the
Agent.
Hedging Agreement — any transaction that provides for an interest rate,
foreign exchange, currency, commodity, credit, or equity swap, cap, floor, collar, option,
forward, cross right or obligation, or combination thereof, or any transaction of a similar
nature.
Hedging Obligations — with respect to any Person, the indebtedness,
liabilities, and obligations of such Person under Hedging Agreement.
Indebtedness — with respect to any Person, any indebtedness of such Person,
including Contingent Obligations, in respect of (a) borrowed money, (b) bonds, notes,
debentures, or similar instruments or letters of credit (or reimbursement agreements in
respect thereof), (c) banker’s acceptances, (d) Capital Lease Obligations, (e) the balance
deferred and unpaid of the purchase price of any property, except any such balance that
constitutes an accrued expense or trade payable, and (f) Hedging Obligations, if and to the
extent any of such indebtedness (other than letters of credit and Hedging Obligations) would
appear as a liability on a balance sheet of the specified Person prepared in accordance with
GAAP. With respect to the Borrowers, all Obligations, other than Bank Product Debt not
covered by clause (a) through clause (f) preceding, shall be included in the
term “Indebtedness”. In addition, the term “Indebtedness” includes all Indebtedness of
others secured by a Lien on any asset of the specified Person (whether or not such
Indebtedness is assumed by the specified Person measured as the lesser of the fair market
value of the assets of such Person so secured or the amount of such Indebtedness) and, to
the extent not otherwise included, the Guarantee by such Person of any Indebtedness of any
other Person. The amount of any Indebtedness outstanding as of any date shall be the
accreted value thereof, in the case of any Indebtedness issued with original issue discount.
In addition, the amount of any Indebtedness shall also include the amount of all obligations
of such Person with
16
respect to the redemption, repayment or other repurchase of any
Disqualified Stock or, with respect to any Restricted Subsidiary of Amkor, any preferred
stock of such Restricted Subsidiary.
Increase Effective Date — as defined in Section 2.1.7.
Indemnified Taxes — Taxes other than Excluded Taxes.
Indemnitees — the Agent Indemnitees, the Lender Indemnitees, the Issuing Bank
Indemnitees, and the Bank of America Indemnitees.
Indentures — Senior Notes Indentures, the Convertible Senior Subordinated
Notes Indentures and the Convertible Subordinated Notes Indenture.
Insolvency Proceeding — any case or proceeding commenced by or against a
Person under any state, federal, or foreign law for, or any agreement of such Person to, (a)
the entry of an order for relief under the Bankruptcy Code, or any other insolvency, debtor
relief, or debt adjustment law, (b) the appointment of a receiver, trustee, liquidator,
administrator, conservator, or other custodian for such Person or any part of its Property,
or (c) an assignment or trust mortgage for the benefit of creditors.
Instrument — as defined in the UCC.
Insurance Assignment — each collateral assignment of insurance pursuant to
which an Obligor assigns to the Agent, for the benefit of the Secured Parties, such
Obligor’s rights under business interruption or other insurance policies as the Agent deems
appropriate, as security for the Obligations.
Intellectual Property — (a) all intellectual and similar Property of a Person,
including inventions, designs, patents, patent applications, copyrights, trademarks, service
marks, trade names, trade secrets, confidential or proprietary information, customer lists,
know-how, software, and databases; (b) all embodiments or fixations thereof and all related
documentation, registrations, and franchises; (c) all books and records describing or used
in connection with the foregoing; and (d) all licenses or other rights to use any of the
foregoing.
Intellectual Property Claim — any claim or assertion (whether in writing, by
suit, or otherwise) that a Borrower’s or a Subsidiary’s ownership, use, marketing, sale, or
distribution of any Inventory, Equipment, Intellectual Property, or other Property violates
another Person’s Intellectual Property.
Interest Period — as defined in Section 3.1.3.
Inventory — as defined in the UCC, including (a) all goods intended for sale,
lease, display, or demonstration, (b) all work in process, and (c) all raw materials, and
other materials and supplies of any kind that are or could be used in connection with the
manufacture, printing, packing, shipping, advertising, sale, lease, or furnishing of such
goods, or otherwise used or consumed in a Borrower’s business (but excluding Equipment).
Investments — with respect to any Person, all investments by such Person in
other Persons (including Affiliates) in the form of direct or indirect loans (including
Guarantees of Indebtedness or other obligations), advances or capital contributions
(excluding commission, travel, and similar advances to officers and employees made in the
ordinary course of business), purchases or other
17
acquisitions for consideration of
Indebtedness, Equity Interests or other securities, together with all items that are or
would be classified as investments on a balance sheet prepared in accordance with GAAP. If
Amkor or any Restricted Subsidiary of Amkor sells or otherwise disposes of any Equity
Interests of any direct or indirect Restricted Subsidiary of Amkor such that, after giving
effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of
Amkor, Amkor shall be deemed to have made an Investment on the date of any such sale or
disposition equal to the fair market value of the Equity Interests of such Restricted
Subsidiary not sold or disposed of in an amount determined as provided in Section
10.2.2.
Investment Property — as defined in the UCC, including all securities (whether
certificated or uncertificated), security entitlements, securities accounts, commodity
contracts, and commodity accounts.
Issuing Bank — Bank of America or an Affiliate of Bank of America.
Issuing Bank Indemnitees — the Issuing Bank and its officers, directors,
employees, Affiliates, agents, and attorneys.
LC Application — an application by the Borrower Agent to the Issuing Bank for
issuance of a Letter of Credit, in form and substance satisfactory to the Issuing Bank.
LC Conditions — the following conditions necessary for issuance of a Letter of
Credit: (a) each of the conditions set forth in Section 6; (b) after giving effect
to such issuance, total LC Obligations do not exceed $25,000,000, no Overadvance exists and,
if no Revolving Loans are outstanding, the LC Obligations do not exceed the Borrowing Base
(without giving effect to the LC Reserve for purposes of this calculation); (c) the
expiration date of such Letter of Credit is (i) no more than 365 days from the date of
issuance and (ii) at least 20 Business Days prior to the Termination Date; (d) the Letter of
Credit and payments thereunder are denominated in Dollars; and (e) the form of the proposed
Letter of Credit is satisfactory to the Agent and the Issuing Bank in their discretion.
LC Documents — all documents, instruments, and agreements (including LC
Requests and LC Applications) delivered by the Borrowers or any other Person to the Issuing
Bank or the
Agent in connection with issuance, amendment, or renewal of, or payment under, any
Letter of Credit.
LC Obligations — the sum (without duplication) of (a) all amounts owing by the
Borrowers for any drawings under Letters of Credit, (b) the aggregate undrawn amount of all
outstanding Letters of Credit, and (c) all fees and other amounts owing with respect to
Letters of Credit.
LC Request — a Letter of Credit Request from the Borrowers to the Issuing Bank
in form acceptable to the Issuing Bank in its discretion.
LC Reserve — the aggregate of all LC Obligations, other than (a) those that
have been Cash Collateralized and (b) if no Event of Default exists, those constituting
charges owing solely to the Issuing Bank.
Lender Indemnitees — the Lenders and their officers, directors, employees,
Affiliates, agents, and attorneys.
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Lenders — as defined in the introductory paragraph of this Agreement,
including the Agent in its capacity as a provider of Agent Advances and any other Person who
hereafter becomes a “Lender” pursuant to an Assignment and Acceptance.
Letter of Credit — any standby letter of credit issued by the Issuing Bank for
the account of a Borrower, or any indemnity, guarantee, exposure transmittal memorandum, or
similar form of credit support issued by the Agent or the Issuing Bank for the benefit of a
Borrower. “Letter of Credit” includes, without limitation, any Original Letter of Credit.
Letter-of-Credit Right — as defined in the UCC.
Lending Office — the office designated as such by the applicable Lender at the
time it becomes party to this Agreement or thereafter by notice to Agent and Borrower Agent.
LIBOR — for any Interest Period with respect to a LIBOR Revolving Loan, the per
annum rate of interest (rounded up, if necessary, to the nearest 1/8th of 1%), determined by
Agent at approximately 11:00 a.m. (London time) two Business Days prior to commencement of
such Interest Period, for a term comparable to such Interest Period, equal to (a) the
British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or
other commercially available source designated by Agent); or (b) if BBA LIBOR is not
available for any reason, the interest rate at which Dollar deposits in the approximate
amount of the LIBOR Revolving Loan would be offered by Bank of America’s London branch to
major banks in the London interbank Eurodollar market. If the Board of Governors imposes a
Reserve Percentage with respect to LIBOR deposits, then LIBOR shall be the foregoing rate,
divided by 1 minus the Eurodollar Reserve Percentage;
Where,
“Eurodollar Reserve Percentage” means the reserve percentage
applicable to member banks under regulations issued from time to time by the Board
of Governors for determining the maximum reserve requirement (including any
emergency, supplemental, or other marginal reserve requirement) with respect to
Eurocurrency
funding (currently referred to as “Eurocurrency liabilities”) and
LIBOR Revolving Loan — a Revolving Loan that bears interest based on LIBOR.
License — any license or agreement under which an Obligor is authorized to use
Intellectual Property in connection with any manufacture, marketing, distribution, or
disposition of Collateral, any use of Property or any other conduct of its business.
Licensor — any Person from whom an Obligor obtains the right to use any
Intellectual Property.
Lien — any Person’s interest in Property securing an obligation owed to, or a
claim by, such Person, whether such interest is based on common law, statute, or contract,
including liens, security interests, pledges, hypothecations, statutory trusts,
reservations, exceptions, encroachments, easements, rights-of-way, covenants, conditions,
restrictions, leases, and other title exceptions and encumbrances affecting Property.
Lien Waiver — an agreement, in form and substance satisfactory to the Agent,
by which (a) for any material Collateral located on leased premises, the lessor waives or
subordinates any
19
Lien it may have on the Collateral, and agrees to permit the Agent to enter
upon the premises and remove the Collateral or to use the premises to store or dispose of
the Collateral, (b) for any Inventory held by a warehouseman, processor, or freight
forwarder, such Person waives or subordinates any Lien it may have on the Inventory, agrees
to hold any Documents in its possession relating to the Inventory as agent for the Agent,
and agrees to deliver the Inventory to the Agent upon request, (c) for any Collateral held
by a bailee, such bailee acknowledges the Agent’s Lien, waives or subordinates any Lien such
bailee may have on the Collateral, and agrees to deliver the Collateral to the Agent upon
request, and (d) for any Collateral subject to a Licensor’s Intellectual Property rights,
the Licensor grants to the Agent the right, vis-à-vis such Licensor, to enforce the Agent’s
Liens with respect to the Collateral, including the right to dispose of the Collateral with
the benefit of the Intellectual Property, whether or not a default exists under any
applicable License.
Loan Account — the loan account established by each Lender on its books
pursuant to Section 5.8.
Loan Documents — this Agreement, the Other Agreements, and the Security
Documents.
Loan Year — each calendar year commencing on the Closing Date and each
anniversary of the Closing Date.
Margin Stock — as defined in Regulation U of the Board of Governors.
Material Adverse Effect — the effect of any event or circumstance that, taken
alone or in conjunction with other related events or circumstances, has a material adverse
effect on (a) the business, operations, Properties, or condition (financial or otherwise) of
any Obligor, on the value of any material Collateral, on the enforceability of any Loan
Documents, or on the validity or priority of the Agent’s Liens on any Collateral, (b) the
ability of any Obligor to perform any obligations under the Loan Documents, including
repayment of any Obligations, or (c) the ability of the Agent or any Lender to enforce or
collect any Obligations or to realize upon any Collateral.
Material Contract — any agreement or arrangement to which a Borrower is party
(other than the Loan Documents) (a) that is deemed to be a material contract under any
securities law applicable to such Obligor, including the Securities Act of 1933, (b) for
which breach, termination, nonperformance, or failure to renew could reasonably be expected
to have a Material Adverse Effect, or (c) that relates to the Senior Notes, the Convertible
Senior Subordinated Notes, the Convertible Subordinated Notes, or any other Indebtedness of
such Obligor in excess of $10,000,000.
Xxxxx’x — Xxxxx’x Investors Services, Inc., and any successor thereto.
Mortgage — a mortgage, deed of trust, or deed to secure debt, in form and
substance reasonably satisfactory to the Agent, pursuant to which Amkor grants to the Agent,
for the benefit of the Secured Parties, Liens upon all of Amkor’s right, title, and interest
in the Owned Real Estate, as security for the Obligations.
Multiemployer Plan — as defined in Section 4001(a)(3) of ERISA.
Net Income — with respect to any Person, the net income (or loss) of such
Person and its Restricted Subsidiaries, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however: (a) any gain (but not
loss), together
20
with any related provision for taxes on such gain (but not loss), realized
in connection with (i) any Asset Sale or (ii) the disposition of any securities by such
Person or any of its Restricted Subsidiaries or the extinguishment of any Indebtedness of
such Person or any of its Restricted Subsidiaries, (b) any extraordinary gain (but not
loss), together with any related provision for taxes on such extraordinary gain (but not
loss), (c) any gain or loss relating to foreign currency translation or exchange, and (iv)
any income or loss related to any discontinued operation.
Net Proceeds — the aggregate cash proceeds received by Amkor or any of its
Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any
cash received upon the sale or other disposition of any non-cash consideration received in
any Asset Sale), net of the direct costs relating to such Asset Sale, including, without
limitation, legal, accounting, and investment banking fees, and sales commissions, and any
relocation expenses incurred as a result thereof, taxes paid or payable as a result thereof,
in each case after taking into account any available tax credits or deductions and any tax
sharing arrangements and amounts required to be applied to the repayment of Indebtedness,
other than the Obligations, secured by a Lien on the asset or assets that were the subject
of such Asset Sale.
Non-Recourse Debt — Indebtedness (a) as to which neither Amkor nor any of its
Restricted Subsidiaries (i) provides credit support of any kind (including any obligation
that would constitute Indebtedness) or (ii) is directly or indirectly liable as a guarantor
or otherwise, other than in the form of a Lien on the Equity Interests of an Unrestricted
Subsidiary held by Amkor or any Restricted Subsidiary in favor of any holder of Non-Recourse
Debt of such Unrestricted Subsidiary, (b) no default with respect to which (including any
rights that the holders thereof may have to take enforcement action against an Unrestricted
Subsidiary) would permit, upon notice, lapse of time, or both, any holder of any other
Indebtedness (other than the Obligations) of Amkor or any of its Restricted Subsidiaries to
declare a default on such other Indebtedness or cause the payment thereof to be accelerated
or payable prior to its stated maturity, and (c) as to which the lenders have been notified
in writing that they will not have any recourse to the stock or assets of Amkor or any of
its Restricted Subsidiaries (other than against the Equity Interests of such Unrestricted
Subsidiary, if any).
Notes — each Revolving Note or other promissory note executed by the Borrowers
to evidence any Obligations.
Notice of Borrowing — a Notice of Borrowing to be submitted by the Borrower
Agent to request the funding of a Borrowing of Revolving Loans, either electronically
according to such procedures as may be established by the Agent or in the form of
Exhibit B.
Notice of Conversion/Continuation — a Notice of Conversion/Continuation to be
submitted by the Borrower Agent to request a conversion or continuation of any Revolving
Loans as LIBOR Revolving Loans, either electronically according to such procedures as may be
established by the Agent or in the form of Exhibit C.
Obligations — all (a) principal of and premium, if any, on the Revolving
Loans, (b) LC Obligations and other obligations of the Obligors with respect to Letters of
Credit, (c) interest, expenses, fees, and other sums payable by the Obligors under the Loan
Documents, (d) obligations of the Obligors under any indemnity for Claims, (e) Extraordinary
Expenses, (f) Bank Product Debt, and (g) other Indebtedness, obligations, and liabilities of
any kind owing by the Obligors pursuant to the Loan Documents, whether now existing or
hereafter arising, whether evidenced by a note or other writing, whether allowed in any
Insolvency Proceeding, whether arising from an extension of credit, issuance of a letter of
credit, acceptance, loan,
21
guaranty, indemnification, or otherwise, and whether direct or
indirect, absolute or contingent, due or to become due, primary or secondary, or joint or
several.
Obligor —Borrower, and each Guarantor or other Person that is liable for
payment of any Obligations or that has granted a Lien in favor of the Agent on such
Guarantor’s or other Person’s assets to secure any Obligations.
Officer — with respect to any Person, the chairman of the board, the chief
executive officer, the president, the chief operating officer, the chief financial officer,
the treasurer, any assistant treasurer, the controller, the secretary, or any vice president
of such Person.
Officers’ Certificate — a certificate signed on behalf of Amkor by two
Officers of Amkor, one of whom must be the principal executive officer, the principal
financial officer, the treasurer or the principal accounting officer of Amkor, in form and
substance satisfactory to the Agent.
Ordinary Course of Business — the ordinary course of business of any Borrower
or Subsidiary, consistent with past practices and undertaken in good faith (and not for the
purpose of evading any provision of a Loan Document).
Organic Documents — with respect to any Person, its charter, certificate, or
articles of incorporation, bylaws, articles of organization, limited liability agreement,
operating agreement, members agreement, shareholders agreement, partnership agreement,
certificate of partnership, certificate of formation, voting trust agreement, or similar
agreement or instrument governing the formation or operation of such Person.
“Original Letters of Credit” mean the “Letters of Credit” as defined by and
issued under the Original Loan and Security Agreement and that are outstanding on the
Closing Date and listed on Exhibit G.
“Original Loan Documents” means the “Loan Documents” as defined by the Original
Loan and Security Agreement.
“Original Loan and Security Agreement” means the certain Loan and Security
Agreement dated as of November 28, 2005, among Amkor and its Subsidiaries party thereto, and
the Agent and the “Lenders” (as defined therein) party thereto, as amended by the First
Amendment to Loan and Security Agreement dated as of May 5, 2006, and the Second Amendment
to Loan and Security Agreement dated as of March 27, 2007, among such parties.
“Original Obligations” means the “Obligations” as defined by the Original Loan
and Security Agreement and which are outstanding on the Closing Date.
“Original Security Documents” means the “Security Documents” as defined in and
executed in connection with the Original Loan and Security Agreement, and any other security
agreement, pledge, mortgage or other agreement pursuant to which a Lien is granted to secure
the Original Obligations in connection with the Original Loan and Security Agreement.
OSHA — the Occupational Safety and Hazard Act of 1970.
Other Agreement — each Note, LC Document, Fee Letters, Lien Waiver, Related
Real Estate Document, Borrowing Base Certificate, Compliance Certificate, financial
statement, or report delivered hereunder, or any other document, instrument, or agreement
(other than this Agreement, a Security Document, or any of the items listed in clause
(b) through clause (d) of the
22
definition of Related Real Estate Documents) now
or hereafter delivered by an Obligor or other Person to the Agent or a Lender in connection
with any transactions contemplated by the Loan Documents.
Other Taxes — all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made under any
Loan Document or from the execution, delivery or enforcement of, or otherwise with respect
to, any Loan Document.
Overadvance — as defined in Section 2.1.5.
Overadvance Loan — a Base Rate Revolving Loan made when an Overadvance exists
or is caused by the funding thereof.
Owned Real Estate — that certain real property owned by Amkor located at 0000
Xxxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxx and 0000 X. Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxx, such
property being more particularly described in Schedule 1.1D.
Participant — as defined in Section 13.2.
Patent Security Agreement — each patent security agreement pursuant to which
an Obligor grants to the Agent, for the benefit of the Secured Parties, a Lien on such
Obligor’s interests in patents, as security for the Obligations.
Patriot Act — the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115
Stat. 272 (2001).
Payment Intangible — as defined in the UCC.
Payment Item — each check, draft, or other item of payment payable to a
Borrower, including those constituting proceeds of any Collateral.
Permitted Accounts Liens — any of the following Liens: (a) Liens in favor of
the Agent; (b) Liens for Taxes not yet due or being Properly Contested; (c) statutory Liens
(other than Liens for Taxes or imposed under ERISA) arising in the Ordinary Course of
Business, but only if (i) payment of the obligations secured thereby is not yet due or is
being Properly Contested and (ii) such Liens do not materially impair the value or use of
the Property or materially impair operation of the business of any Borrower or Subsidiary;
and (d) Liens arising by virtue of a judgment or judicial order against any Borrower or
Subsidiary, or any Property of a Borrower or Subsidiary, as long as such Liens are (i) in
existence for less than 30 consecutive days or being Properly Contested, and (ii) at all
times junior to the Agent’s Liens.
Permitted Bank Debt — Indebtedness incurred by Amkor or any Restricted
Subsidiary other than a Foreign Subsidiary pursuant to the Credit Facilities, any
Receivables Program, any indenture, or one or more other term loan and/or revolving credit
or commercial paper facilities (including any letter of credit subfacilities) entered into
with commercial banks and/or institutional lenders, and any replacement, extension, renewal,
refinancing or refunding thereof, but excluding the Obligations.
23
Permitted Business — the business of Amkor and its Subsidiaries, taken as a
whole, operated in a manner consistent with past operations, and any business that is
reasonably related thereto or supplements such business or is a reasonable extension
thereof.
Permitted Debt — as defined in Section 10.2.4(b).
Permitted Holder — each of Xxxxx X. Xxx and his estate, spouse, siblings,
ancestors, heirs, and lineal descendants, and spouses of any such persons, the legal
representatives of any of the foregoing, and the trustee of any bona fide trust of which one
or more of the foregoing are the principal beneficiaries or the grantors, or any other
Person that is controlled by any of the foregoing.
Permitted Investments — (a) any Investment in Amkor or in a Restricted
Subsidiary, (b) any Investment in Cash Equivalents, (c) any Investment by Amkor or any
Restricted Subsidiary of Amkor in a Person, if as a result of such Investment or in
connection with the transaction pursuant to which such Investment is made (i) such Person
becomes a Restricted Subsidiary of Amkor, or (ii) such Person is merged, consolidated, or
amalgamated with or into, or transfers or conveys substantially all of its assets to, or is
liquidated into, Amkor or a Restricted Subsidiary of Amkor, (d) any Investment made as a
result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to
and in compliance with Section 10.2.5, (e) any acquisition of assets solely in
exchange for the issuance of Equity Interests (other than Disqualified Stock) of Amkor, (f)
any Investment in connection with Hedging Obligations, (g) any Investments received (i) in
satisfaction of judgments or (ii) as payment on a claim made in connection with any
bankruptcy, liquidation, receivership, or other insolvency proceeding, (h) Investments in
(i) prepaid expenses and negotiable instruments held for collection, (ii) accounts
receivable arising in the Ordinary Course of Business (and Investments obtained in exchange
or settlement of accounts receivable for which Amkor or any Restricted Subsidiary has
determined that collection is not likely), and (iii) lease, utility, and worker’s
compensation, performance, and other similar deposits arising in the Ordinary Course of
Business, (i) any Strategic Investment; provided that the aggregate amount of all
Investments by Amkor and any Restricted Subsidiaries in Strategic Investments shall not
exceed $100,000,000, and (j) Investments purchased or received in exchange for Permitted
Investments existing as of the Closing Date or made thereafter; provided that any
additional consideration provided by Amkor or any Restricted Subsidiary in such exchange
shall not be permitted pursuant to this clause (j); and provided,
further, that such purchased or exchanged Investments shall have a fair market value
(as determined by an Officer of Amkor unless such fair market value exceeds $25,000,000 in
which case, as determined by the board of directors) equal to or exceeding the Permitted
Investments exchanged therefor; provided, further, that, notwithstanding the
preceding, any extension of credit or advance by Amkor or any of its Subsidiaries to a
customer or supplier of Amkor or its Subsidiaries shall not be a Permitted Investment.
Permitted Liens — the following Liens on property of any Borrower (a) Liens on
the assets, excluding the Collateral, of any such Borrower securing Permitted Bank Debt that
was permitted by the terms of this Agreement to be incurred, (b) Liens on the assets of any
Foreign Subsidiary securing Indebtedness and other obligations under Indebtedness of such
Foreign Subsidiary that were permitted by the terms of this Agreement to be incurred, (c)
Liens in favor of Amkor or any Restricted Subsidiary; provided that any such Lien on
property of any Borrower shall not extend to any Collateral, (d) Liens on property of a
Person existing at the time such Person is merged with or into or consolidated with any
Borrower; provided that such Liens were not incurred in contemplation of such merger
or consolidation and do not extend to any assets
which constitute Collateral, (e) Liens on property existing at the time of acquisition thereof by
24
any Borrower; provided that such Liens were not incurred in contemplation
of such acquisition and do not extend to any assets which constitute Collateral, (f) Liens
to secure the performance of statutory obligations, surety or appeal bonds, performance
bonds, or other obligations of a like nature incurred in the Ordinary Course of Business,
(g) Liens to secure obligations in respect of Indebtedness (including Capital Lease
Obligations) permitted by Section 10.2.4(b)(iv) covering only the assets acquired
with such Indebtedness, including accessions, additions, parts, attachments, improvements,
fixtures, leasehold improvements, or proceeds, if any, related thereto, (h) Liens existing
on the effective date of any of the Senior Notes Indentures, excluding Liens on Collateral,
(i) Liens for taxes, assessments, or governmental charges or claims that are not yet
delinquent or that are being Properly Contested, (j) Liens imposed by law or arising by
operation of law, including, landlords’, mechanics’, carriers’, warehousemen’s,
materialmen’s, suppliers’, and vendors’ Liens, Liens for master’s and crew’s wages and other
similar Liens, in each case which are incurred in the Ordinary Course of Business for sums
not yet delinquent or being Properly Contested, (k) Liens incurred or pledges and deposits
made in the Ordinary Course of Business in connection with workers’ compensation and
unemployment insurance and other types of social security, (l) Liens to secure any
extension, renewal, refinancing, or refunding (or successive extensions, renewals,
refinancings, or refundings), in whole or in part, of any Indebtedness secured by Liens
referred to in clause (d), clause (e), clause (g), and clause
(h) of this definition; provided that such Liens do not extend to any other
property of any Borrower and the principal amount of the Indebtedness secured by such Lien
is not increased, (m) judgment Liens not giving rise to an Event of Default so long as such
Lien is adequately bonded and any appropriate legal proceedings that may have been initiated
for the review of such judgment, decree, or order shall not have been finally terminated or
the period within which such proceedings may be initiated shall not have expired, (n) Liens
on property of a Borrower other than Collateral securing obligations of a Borrower under
Hedging Obligations permitted by Section 10.2.4(b)(vii) or any collateral for the
Indebtedness to which such Hedging Obligations relate, (p) Liens upon specific items of
inventory or other goods and proceeds securing such Borrower’s obligations in respect of
banker’s acceptances issued or credited for the account of such Borrower to facilitate the
purchase, shipment, or storage of such inventory or goods, (q) Liens securing reimbursement
obligations with respect to commercial letters of credit which encumber documents and other
property relating to such letters of credit and products and proceeds thereof, (r) Liens
arising out of consignment or similar arrangements for the sale of goods in the Ordinary
Course of Business, (s) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the importation of
goods, (t) Liens on property of a Borrower other than the Collateral securing other
Indebtedness not exceeding $10,000,000 at any time outstanding, (u) Liens securing Permitted
Refinancing Indebtedness, provided that such Liens do not extend to any other
property of such Borrower and the principal amount of such Indebtedness secured by such Lien
is not increased, (v) Liens on the Equity Interests of Unrestricted Subsidiaries securing
obligations of Unrestricted Subsidiaries not otherwise prohibited by this Agreement, and (w)
the Liens specified in Schedule 1.1C.
Permitted Other Liens — the following Liens on property of any of Amkor’s
Subsidiaries which is not a Borrower (a) Liens on the assets of any such Restricted
Subsidiary securing Permitted Bank Debt that was permitted by the terms of this Agreement to
be incurred, (b) Liens on the assets of any Foreign Subsidiary securing Indebtedness and
other obligations under Indebtedness of such Foreign Subsidiary that were permitted by the
terms of this Agreement to be incurred, (c) Liens in favor of Amkor or any Restricted
Subsidiary, (d) Liens on property of a Person existing at the time such Person is merged
with or into or consolidated with any
Subsidiary of Amkor which is not a Borrower; provided that such Liens were not
incurred in contemplation of such merger or consolidation and do not extend to any assets
other than those of
25
the Person merged into or consolidated with such Subsidiary, (e) Liens
on property existing at the time of acquisition thereof by any Restricted Subsidiary of
Amkor which is not a Borrower; provided that such Liens were not incurred in
contemplation of such acquisition, (f) Liens to secure the performance of statutory
obligations, surety or appeal bonds, performance bonds, or other obligations of a like
nature incurred in the Ordinary Course of Business, (g) Liens to secure obligations in
respect of Indebtedness (including Capital Lease Obligations) permitted by Section
10.2.4(b)(iv) covering only the assets acquired with such Indebtedness, including
accessions, additions, parts, attachments, improvements, fixtures, leasehold improvements,
or proceeds, if any, related thereto, (h) Liens existing on the effective date of any of the
Senior Notes Indentures other than those securing Permitted Bank Debt, (i) Liens securing
obligations of a Restricted Subsidiary of Amkor that is not a Borrower in respect of any
Receivables Program, (j) Liens for taxes, assessments, or governmental charges or claims
that are not yet delinquent or that are being Properly Contested, (k) Liens imposed by law
or arising by operation of law, including, landlords’, mechanics’, carriers’,
warehousemen’s, materialmen’s, suppliers’, and vendors’ Liens, Liens for master’s and crew’s
wages and other similar Liens, in each case which are incurred in the Ordinary Course of
Business for sums not yet delinquent or being Properly Contested, (l) Liens incurred or
pledges and deposits made in the Ordinary Course of Business in connection with workers’
compensation and unemployment insurance and other types of social security, (m) Liens to
secure any extension, renewal, refinancing, or refunding (or successive extensions,
renewals, refinancings, or refundings), in whole or in part, of any Indebtedness secured by
Liens referred to in clause (d), clause (e), clause (g), and
clause (h) of this definition; provided that such Liens do not extend to any
other property of any Restricted Subsidiary of Amkor and the principal amount of the
Indebtedness secured by such Lien is not increased, (n) judgment Liens not giving rise to an
Event of Default so long as such Lien is adequately bonded and any appropriate legal
proceedings that may have been initiated for the review of such judgment, decree, or order
shall not have been finally terminated or the period within which such proceedings may be
initiated shall not have expired, (o) Liens securing obligations of a Restricted Subsidiary
of Amkor that is not a Borrower under Hedging Obligations permitted by Section
10.2.4(b)(vii) or any collateral for the Indebtedness to which such Hedging Obligations
relate, (p) Liens upon specific items of inventory or other goods and proceeds securing such
Restricted Subsidiary of Amkor’s which is not a Borrower obligations in respect of banker’s
acceptances issued or credited for the account of such Restricted Subsidiary of Amkor which
is not a Borrower to facilitate the purchase, shipment, or storage of such inventory or
goods, (q) Liens securing reimbursement obligations with respect to commercial letters of
credit which encumber documents and other property relating to such letters of credit and
products and proceeds thereof, (r) Liens arising out of consignment or similar arrangements
for the sale of goods in the Ordinary Course of Business, (s) Liens in favor of customs and
revenue authorities arising as a matter of law to secure payment of customs duties in
connection with the importation of goods, (t) Liens securing other Indebtedness not
exceeding $10,000,000 at any time outstanding, (u) Liens securing Permitted Refinancing
Indebtedness, provided that such Liens do not extend to any other property of such
Restricted Subsidiary which is not a Borrower and the principal amount of such Indebtedness
secured by such Lien is not increased, and (v) Liens on the Equity Interests of Unrestricted
Subsidiaries securing obligations of Unrestricted Subsidiaries not otherwise prohibited by
this Agreement.
Permitted Refinancing Indebtedness — any Indebtedness of Amkor or any of its
Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to
extend, refinance, renew, replace, defease, or refund other Indebtedness of Amkor or any of
its Restricted
Subsidiaries (other than intercompany Indebtedness); provided that: (a) the
principal amount (or accreted value, if applicable) of such Permitted Refinancing
Indebtedness does not exceed the principal amount of (or accreted value, if applicable),
plus accrued interest or premium (including
26
any make-whole premium), if any, on, the
Indebtedness so extended, refinanced, renewed, replaced, defeased, or refunded (plus
the amount of reasonable expenses incurred in connection therewith), (b) such Permitted
Refinancing Indebtedness has a final maturity date later than the final maturity date of,
and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Indebtedness being extended, refinanced, renewed, replaced,
defeased, or refunded; provided that if the original maturity date of such
Indebtedness is after the Termination Date, then such Permitted Refinancing Indebtedness
shall have a maturity at least 180 days after the Termination Date, (c) if the Indebtedness
being extended, refinanced, renewed, replaced, defeased, or refunded is subordinated in
right of payment to the Obligations, such Permitted Refinancing Indebtedness has a final
maturity date later than the Termination Date and is subordinated in right of payment to the
Obligations on terms at least as favorable to the Lenders as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed, replaced,
defeased, or refunded, and (d) such Indebtedness is incurred either by Amkor or by the
Restricted Subsidiary who is the obligor on the Indebtedness being extended, refinanced,
renewed, replaced, defeased, or refunded.
Person — any individual, corporation, limited liability company, partnership,
joint venture, joint stock company, land trust, business trust, unincorporated organization,
Governmental Authority, or other entity.
Plan — an employee pension benefit plan that is covered by Title IV of ERISA
or subject to the minimum funding standards under Section 412 of the Internal Revenue Code
and that is either (a) maintained by a Borrower or Subsidiary for employees or (b)
maintained pursuant to a collective bargaining agreement or other arrangement under which
more than one employer makes contributions and to which a Borrower or Subsidiary is making
or accruing an obligation to make contributions or has within the preceding five years made
or accrued such contributions.
Pro Rata — with respect to any Lender, a percentage (expressed as a decimal,
rounded to the ninth decimal place) determined (a) while Revolving Commitments are
outstanding, by dividing the amount of such Lender’s Revolving Commitment by the aggregate
amount of all Revolving Commitments and (b) at any other time, by dividing the amount of
such Lender’s Revolving Loans by the aggregate amount of all outstanding Revolving Loans.
Properly Contested — with respect to any obligation of an Obligor, (a) the
obligation is subject to a bona fide dispute regarding amount or the Obligor’s liability to
pay, (b) the obligation is being properly contested in good faith by appropriate proceedings
promptly instituted and diligently pursued, (c) appropriate reserves have been established
in accordance with GAAP, (d) non-payment could not reasonably be expected to have a Material
Adverse Effect, nor result in forfeiture or sale of any assets of the Obligor, (e) no Lien
is imposed on assets of the Obligor, and (f) if the obligation results from entry of a
judgment or other order, such judgment or order is stayed pending appeal or other judicial
review.
Property — any interest in any kind of property or asset, whether real,
personal, or mixed, or tangible or intangible.
Protective Advances — as defined in Section 2.1.6.
Purchase Money Debt — (a) Indebtedness (other than the Obligations) for
payment of any of the purchase price of fixed assets, (b) Indebtedness (other than the
Obligations) incurred for the purpose of financing the purchase price thereof, and (c) any
renewals, extensions, replacements, or refinancings (but not increases) thereof.
27
Qualified Proceeds — any of the following or any combination of the following:
(a) any Cash Equivalents other than (i) currency of any sovereign nation other than the
United States and (ii) certificates of deposit, eurodollar time deposits, bankers’
acceptances, and overnight bank deposits with any commercial bank organized under the laws
of a foreign country, (b) any liabilities (as would be shown on Amkor’s or such Restricted
Subsidiary’s balance sheet if prepared in accordance with GAAP on the date of the
corresponding Asset Sale) of Amkor or any Restricted Subsidiary (other than contingent
liabilities and liabilities that are by their terms subordinated to the Obligations) that
are assumed by the transferee of any such assets pursuant to a customary novation agreement
that releases or indemnifies Amkor or such Restricted Subsidiary from further liability, (c)
any securities, notes, or other obligations received by Amkor or any such Restricted
Subsidiary from such transferee that are converted by Amkor or such Restricted Subsidiary
into cash within 90 days after such Asset Sale (to the extent of the cash received in that
conversion), (d) long-term assets that are used or useful in a Permitted Business, and (e)
all or substantially all of the assets of, or a majority of the voting Equity Interests of,
any Permitted Business; provided that in the case of clause (d) and
clause (e) preceding, the Asset Sale transaction shall be with a non-Affiliate and
the amount of long-term assets or voting Equity Interests received in the Asset Sale
transaction shall not exceed 10.0% of the consideration received.
RCRA — the Resource Conservation and Recovery Act (42 U.S.C. §§ 6991-6991i).
Real Estate — all right, title, and interest (whether as owner, lessor, or
lessee) in any real Property or any buildings, structures, parking areas, or other
improvements thereon.
Receivables Program — with respect to any Person, an agreement or other
arrangement or program providing for the advance of funds to such Person against the pledge,
contribution, sale, or other transfer of encumbrances of Receivables Program Assets of such
Person or such Person and/or one or more of its Subsidiaries.
Receivables Program Assets — all of the following property and interests in
property, including any undivided interest in any pool of any such property or interests,
whether now existing or existing in the future or hereafter arising or acquired: (a)
accounts; (b) accounts receivable, general intangibles, instruments, contract rights,
documents, and chattel paper (including, without limitation, all rights to payment created
by or arising from sales of goods, leases of goods, or the rendition of services, no matter
how evidenced, whether or not earned by performance); (c) all unpaid seller’s or lessor’s
rights (including, without limitation, rescission, replevin, reclamation, and stoppage in
transit) relating to any of the foregoing or arising therefrom; (d) all rights to any goods
or merchandise represented by any of the foregoing (including, without limitation, returned
or repossessed goods); (e) all reserves and credit balances with respect to any such
accounts receivable or account debtors; (f) all letters of credit, security, or Guarantees
of any of the foregoing; (g) all insurance policies or reports relating to any of the
foregoing; (h) all collection or deposit accounts relating to any of the foregoing; (i) all
books and records relating to any of the foregoing; (j) all instruments, contract rights,
chattel paper, documents, and general intangibles relating to any of the foregoing; and (k)
all proceeds of any of the foregoing.
Regulation D — Regulation D of the Board of Governors.
Reimbursement Date — as defined in Section 2.3.2.
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Related Real Estate Documents — with respect to the Owned Real Estate, the
following, in form and substance satisfactory to the Agent, (a) such assignments of leases,
estoppel letters, attornment agreements, consents, waivers, and releases as the Agent may
require with respect to other Persons having an interest in the Owned Real Estate, (b) flood
insurance in an amount, with endorsements and by an insurer, acceptable to the Agent if the
Owned Real Estate is within a flood plain, (c) to the extent required by this Agreement and
requested by the Agent, any appraisal of the Owned Real Estate, prepared by an appraiser
acceptable to the Agent, in form satisfactory to the Agent, and (d) to the extent required
by the Mortgage or this Agreement and requested by the Agent, any environmental assessment
received by the Agent, prepared by an environmental engineer acceptable to the Agent, and
accompanied by such reports, certificates, studies, or data as the Agent may reasonably
require, in form reasonably satisfactory to the Agent.
Report — as defined in Section 12.2.3.
Reportable Event — any event set forth in Section 4043(b) of ERISA.
Requisite Lenders — Lenders (subject to Section 4.2) having (a)
Revolving Commitments in excess of 50.0% of the aggregate Revolving Commitments and (b) if
the Revolving Commitments have terminated, Revolving Loans in excess of 50.0% of all
outstanding Revolving Loans, provided, that at any time when there are three (3) or
fewer Lenders (subject to Section 4.2), Requisite Lenders means at least two (2) of
the Lenders (which shall not be Affiliates of one another) described in the portion of this
sentence that precedes this proviso, one of which is the Agent.
Reserves — means (a) any and all reserves that the Agent deems necessary in
its discretion to maintain with respect to the Collateral or any Borrower which limit the
availability of Borrowings hereunder or which represent amounts the Agent or any Lender may
be obligated to pay in the future on behalf of a Borrower (including (i) reserves for Bank
Products, (ii) reserves for accrued, unpaid interest on the Obligations, (iii) reserves for
dilution of Accounts, and (iv) reserves for taxes, fees, assessments, and other governmental
charges and (b) any reserve established by the Agent and Borrowers as described in
clause (d) of the definition of “Fixed Charges” or clause (ii) of
Section 11.1(m).
Restricted Investment — any Investment which is not a Permitted Investment.
Restricted Payment — as defined in Section 10.2.2.
Restricted Subsidiary — with respect to any Person, any Subsidiary of such
Person that is not an Unrestricted Subsidiary.
Restrictive Agreement — an agreement (other than a Loan Document) that
conditions or restricts the right of any Borrower or other Obligor to incur or repay
Borrowed Money, to grant Liens on any assets, to declare or make Distributions, to modify,
extend, or renew any agreement evidencing Borrowed Money, or to repay any Indebtedness owing
to each other.
Revolving Commitment — for any Lender, its obligation to make Revolving Loans
and to participate in LC Obligations up to the maximum principal amount shown on
Schedule 1.1A, or as specified hereafter in the most recent Assignment and
Acceptance to which such Lender is a party. “Revolving Commitments” means the
aggregate amount of such commitments of all Lenders.
29
Revolving Loan means a loan made pursuant to Section 2.1, any Agent
Advance, Overadvance Loan, or Protective Advance, also includes the “Revolving Loans”
outstanding under the Original Loan and Security Agreement as renewed and continued under
this Agreement on the Closing Date as provided by Section 14.14.
Revolving Note — a promissory note to be executed by the Borrowers in favor of
a Lender in the form of Exhibit A, which shall be in the amount of such Lender’s
Revolving Commitment and shall evidence the Revolving Loans made by such Lender.
Royalties — all royalties, fees, expense reimbursements, and other amounts
payable by a Borrower under a License.
S&P — Standard & Poor’s Ratings Group, a division of XxXxxx-Xxxx, Inc., and
any successor thereto.
Secured Parties — the Agent, the Issuing Bank, the Lenders, and providers of
Bank Products.
Security Documents — the Guaranties, Mortgages, Patent Security Agreements,
Trademark Security Agreements, Copyright Security Agreements, Deposit Account Control
Agreements, and all other documents, instruments, and agreements now or hereafter securing
(or given with the intent to secure) any Obligations.
Senior Notes — (a) Amkor’s
71/8% Senior Notes due March 15, 2011 issued pursuant
to the Senior Notes (2011) Indenture, (b) Amkor’s 7.75% Senior Notes due May 15, 2013 issued
pursuant to the Senior Notes (2013) Indenture and (c) Amkor’s 9.25% Senior Notes due June 1,
2016 issued pursuant to the Senior Notes (2016) Indenture
Senior Notes Indentures — (a) the Senior Notes (2011) Indenture, (b) the
Senior Notes (2013) Indenture and (c) the Senior Notes (2016) Indenture.
Senior Notes (2011) Indenture — that certain Indenture between Amkor and Xxxxx
Fargo Bank, N.A., as Trustee, dated as of March 12, 2004, as such Indenture may be amended
or supplemented from time to time, relating to Amkor’s 71/8% Senior Notes due March 15, 2011.
Senior Notes (2013) Indenture — that certain Indenture between Amkor and U.S.
Bank National Association, as Trustee, dated as of May 8, 2003, as such Indenture may be
amended or supplemented from time to time, relating to Amkor’s 7.75% Senior Notes due May
15, 2013.
Senior Notes (2016) Indenture — that certain Indenture between Amkor and U.S.
Bank National Association, as Trustee, dated as of May 26, 2006, as such Indenture may be
amended or supplemented from time to time, relating to Amkor’s 9.25% Senior Notes due June
1, 2016.
Senior Officer — the chairman of the board, chief executive officer,
president, chief financial officer, treasurer, or general counsel of a Borrower or, if the
context requires, an Obligor.
Settlement Report — a report delivered by the Agent to the Lenders summarizing
the Revolving Loans and participations in LC Obligations outstanding as of a given
settlement date, allocated to the Lenders on a Pro Rata basis in accordance with their
Revolving Commitments.
Software — as defined in the UCC.
30
Solvent — as to any Person, such Person (a) owns Property whose fair salable
value is greater than the amount required to pay all of its debts (including contingent,
subordinated, unmatured, and unliquidated liabilities), (b) owns Property whose present fair
salable value (as defined below) is greater than the probable total liabilities (including
contingent, subordinated, unmatured, and unliquidated liabilities) of such Person as they
become absolute and matured, (c) is able to pay all of its debts as they mature, (d) has
capital that is not unreasonably small for its business and is sufficient to carry on its
business and transactions and all business and transactions in which it is about to engage,
(e) is not “insolvent” within the meaning of Section 101(32) of the Bankruptcy Code, and (f)
has not incurred (by way of assumption or otherwise) any obligations or liabilities
(contingent or otherwise) under any Loan Documents, or made any conveyance in connection
therewith, with actual intent to hinder, delay, or defraud either present or future
creditors of such Person or any of its Affiliates. As used in this definition, “fair
salable value” means the amount that could be obtained for assets within a reasonable time,
either through collection or through sale under ordinary selling conditions by a capable and
diligent seller to an interested buyer who is willing (but under no compulsion) to purchase.
Stated Maturity — with respect to any installment of interest or principal on
any series of Indebtedness, the date on which such payment of interest or principal was
scheduled to be paid in the original documentation governing such Indebtedness, and shall
not include any contingent obligations to repay, redeem, or repurchase any such interest or
principal prior to the date originally scheduled for the payment thereof.
Statutory Reserves — the percentage (expressed as a decimal) established by
the Board of Governors as the then stated maximum rate for all reserves (including those
imposed by Regulation D, all basic, emergency, supplemental, or other marginal reserve
requirements, and any transitional adjustments or other scheduled changes in reserve
requirements) applicable to any member bank of the Federal Reserve System in respect of
Eurocurrency Liabilities (or any successor category of liabilities under Regulation D).
Strategic Investment — any Investment in any Person (other than an
Unrestricted Subsidiary) whose primary business is related, ancillary, or complementary to a
Permitted Business, and such Investment is determined in good faith by the board of
directors of Amkor (or senior officers of Amkor to whom the board of directors has duly
delegated the authority to make such a determination), whose determination shall be
conclusive and evidenced by a resolution, to promote or significantly benefit the businesses
of Amkor and its Restricted Subsidiaries on the date of such Investment; provided,
that, with respect to any Strategic Investment or series of related Strategic Investments
involving aggregate consideration in excess of $10,000,000, Amkor shall deliver to the Agent
a resolution of its board of directors set forth in an Officer’s Certificate certifying that
such Investment qualifies as a Strategic Investment pursuant to this definition.
Subordinated Debt — any Indebtedness of Amkor or its Subsidiaries which is
subordinated in right of payment to the Obligations, including the Convertible Senior
Subordinated Notes and the Convertible Subordinated Notes.
Subsidiary — any entity at least 50.0% of whose voting securities or Equity
Interests are owned by a Borrower or any combination of Borrowers (including indirect
ownership by a Borrower through other entities in which such Borrower directly or indirectly
owns 50.0% of the voting securities or Equity Interests).
Subsidiary Guarantor — a “Guarantor” as defined in the Senior Notes
Indentures.
31
Supporting Obligation — as defined in the UCC.
Taxes — all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed by
any Governmental Authority, including any interest, additions to tax or penalties applicable
thereto.
Termination Date — the earliest to occur of (a) Xxxxx 00, 0000, (x) the date
on which the Borrowers terminate the Revolving Commitments pursuant to Section
2.1.4, or (c) the date on which the Revolving Commitments are terminated pursuant to
Section 11.2.
Total Tangible Assets of the Foreign Subsidiaries — as of any date, the total
assets of all of the Foreign Subsidiaries of Amkor as of such date, less the amount
of the intangible assets of the Foreign Subsidiaries of Amkor as of such date.
Trademark Security Agreement — each trademark security agreement pursuant to
which an Obligor grants to the Agent, for the benefit of the Secured Parties, a Lien on such
Obligor’s interests in trademarks, as security for the Obligations.
Transferee — any actual or potential Eligible Assignee, Participant, or other
Person acquiring an interest in any Obligations.
Triggered Activation Period — any period beginning on any day on which
Availability is below an amount equal to the greater of (a) $30,000,000 or (b) 20.0% of the
aggregate Revolving Commitments on such day and continuing through and including the first
day, if any, when Availability has exceeded, for sixty (60) consecutive days, the greater of
(a) $30,000,000 or (b) 20.0% of the aggregate Revolving Commitments on each of such
consecutive days.
Type — any type of a Revolving Loan (i.e., Base Rate Revolving Loan or LIBOR
Revolving Loan) that has the same interest option and, in the case of LIBOR Revolving Loans,
the same Interest Period.
UCC — the Uniform Commercial Code as in effect in the State of Texas or, when
the laws of any other jurisdiction govern the perfection or enforcement of any Lien, the
Uniform Commercial Code of such jurisdiction.
United States — the United States of America.
Unrestricted Subsidiary — any Subsidiary of Amkor that is designated by its
board of directors as an Unrestricted Subsidiary pursuant to a board resolution, but only to
the extent that such Subsidiary (a) has no Indebtedness other than Non-Recourse Debt, (b) is
a Person with
respect to which neither Amkor nor any of its Restricted Subsidiaries has any direct or
indirect obligation (i) to subscribe for additional Equity Interests or (ii) to maintain or
preserve such Person’s financial condition or to cause such Person to achieve any specified
levels of operating results, (c) has not Guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of Amkor or any of its Restricted Subsidiaries,
and (d) has at least one director on its board of directors that is not a director or
executive officer of Amkor or any of its Restricted Subsidiaries and has at least one
executive officer that is not a director or executive officer of Amkor or any of its
Restricted Subsidiaries. Any designation of a Subsidiary of Amkor as an Unrestricted
Subsidiary shall be effective upon the Agent’s receipt from Amkor of a certified copy of the
resolution of Amkor’s board of directors giving effect to such designation and an Officers’
Certificate certifying that such designation complied with the preceding conditions and
32
was
permitted by Section 10.1.10. If, at any time, any Unrestricted Subsidiary would
fail to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter
cease to be an Unrestricted Subsidiary for purposes of this Agreement and any Indebtedness
of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of Amkor as of
such date and, if such Indebtedness is not permitted to be incurred as of such date under
Section 10.1.10, Amkor shall be in default of such covenant. Amkor’s board of
directors may at any time designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided that such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of Amkor of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation shall only be permitted if (y) such
Indebtedness is permitted under Section 10.1.10, calculated on a pro forma basis as
if such designation had occurred at the beginning of the four-quarter reference period and
(z) no Default or Event of Default would be in existence following such designation.
Unused Line Fee Percentage — with respect to the unused line fee to be paid
pursuant to Section 3.2.1, the per annum percentage specified below adjacent to the
applicable level of the Average Total Usage, determined as of the first day of a calendar
month with respect to Average Total Usage for the previous calendar month:
Average Total Usage | ||||
for preceding calendar month | Unused Line Fee Percentage | |||
Greater than 50.0% of the aggregate Revolving
Commitments |
0.50 | % | ||
Less than or equal to 50.0% of the aggregate
Revolving Commitments |
0.75 | % |
Value — the value of Inventory determined by the Agent in good faith on the
basis of the lower of cost or market, calculated on a first-in, first-out basis.
Voting Stock — with respect to any Person as of any date, the Equity Interests
of such Person that are at the time entitled to vote in the election of the board of
directors (or other equivalent governing body) of such Person.
Weighted Average Life to Maturity — when applied to any Indebtedness at any
date, the number of years obtained by dividing (a) the sum of the products obtained by
multiplying (i) the amount of each then remaining installment, sinking fund, serial
maturity, or other required payments of principal, including payment at final maturity, in
respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that
will elapse between such date and the making of such payment, by (b) the then outstanding
principal amount of such Indebtedness.
Wholly Owned Restricted Subsidiary — with respect to any Person, a Restricted
Subsidiary of such Person all of the outstanding Equity Interests of which (other than
directors’ qualifying shares or similar shares required by law to be held by third parties)
shall at the time be owned by such Person and/or by one or more Wholly Owned Restricted
Subsidiaries of such Person.
1.2. Accounting Terms. Except as otherwise specified herein, under the Loan Documents
all accounting terms shall be interpreted, all accounting determinations shall be made, and all
financial statements shall be prepared in accordance with GAAP applied on a basis consistent with
the most recent audited financial statements of the Borrowers delivered to the Agent before the
Closing Date and using the same inventory valuation method as used in such financial statements,
except for any change required
33
or permitted by GAAP if the Borrowers’ certified public accountants
concur in such change, the change is disclosed to the Agent, and Section 10.3 is amended in
a manner reasonably satisfactory to the Borrowers and the Requisite Lenders to preserve the
original intent thereof in light of the effects of the change.
1.3. Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder,” and
other words of similar import refer to this Agreement as a whole and not to any particular section,
paragraph, or subdivision. Any pronoun used shall be deemed to cover all genders. In the
computation of periods of time from a specified date to a later specified date, “from” means “from
and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and
“include” shall mean “including, without limitation” and, for purposes of each Loan Document, the
parties agree that the rule of ejusdem generis shall not be applicable to limit any provision.
Section titles appear as a matter of convenience only and shall not affect the interpretation of
any Loan Document. All references to (a) laws or statutes include all related rules, regulations,
interpretations, amendments, and successor provisions, (b) any document, instrument, or agreement
include any amendments, waivers, and other modifications, extensions or renewals (to the extent
permitted by the Loan Documents), (c) any Section mean, unless the context otherwise requires, a
Section of this Agreement, (d) any Exhibits or Schedules mean, unless the context otherwise
requires, Exhibits and Schedules attached hereto, which are hereby incorporated by reference, (e)
any Person include successors and assigns, (f) time of day means time of day at the Agent’s notice
address under Section 14.4.1, or (g) discretion of the Agent, the Issuing Bank, or any
Lender mean the sole and absolute discretion of such Person. All calculations of Value, fundings
of Revolving Loans, issuances of Letters of Credit, and payments of Obligations shall be in Dollars
and, unless the context otherwise requires, all determinations (including calculations of Borrowing
Base and financial covenants) made from time to time under the Loan Documents shall be made in
light of the circumstances existing at such time. Borrowing Base calculations shall be made in a
manner consistent with historical methods of valuation and calculation, and otherwise satisfactory
to the Agent (and not necessarily in accordance with GAAP). The Borrowers shall have the burden of
establishing any alleged negligence, misconduct, or lack of good faith by the Agent, the Issuing
Bank, or any Lender under any Loan Documents. No provision of any Loan Documents shall be
construed against any party by reason of such party having, or being deemed to have, drafted the
provision. Whenever the phrase “to the best of the Borrowers’ knowledge” or words of similar
import are used in any Loan Documents, such phrase means actual knowledge of a Senior Officer, or
knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and
diligent performance of his or her duties, including reasonably specific inquiries of employees or
agents and a good faith attempt to ascertain the matter to which such phrase relates.
SECTION 2. CREDIT FACILITIES
2.1. Revolving Commitment.
2.1.1. Revolving Loans. Each Lender agrees, severally on a Pro Rata basis up
to its Revolving Commitment, on the terms set forth herein, to make Revolving Loans to the
Borrowers from time to time through the Termination Date. The Revolving Loans may be repaid
and reborrowed as provided herein. In no event shall the Lenders have any obligation to
honor a request for a Revolving Loan if the unpaid balance of Revolving Loans outstanding at
such time (including the requested Revolving Loan) would exceed the Borrowing Base.
2.1.2. Revolving Notes. The Revolving Loans made by each Lender and interest
accruing thereon shall be evidenced by the records of the Agent and such Lender. At the
request of any Lender, the Borrowers shall deliver a Revolving Note to such Lender.
2.1.3. Use of Proceeds. The proceeds of the Revolving Loans shall be used by
the Borrowers solely (a) to satisfy Existing Indebtedness, (b) to pay fees and transaction
expenses
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associated with the closing of this credit facility, (c) to pay Obligations in
accordance with this Agreement, (d) for Capital Expenditures made in the Ordinary Course of
Business, and (e) for working capital and other lawful corporate purposes of the Borrowers.
2.1.4. Voluntary Reduction or Termination of Revolving Commitments.
(a) The Revolving Commitments shall terminate on the Termination Date, unless
sooner terminated in accordance with this Agreement. Upon at least ten days prior
written notice to the Agent, the Borrowers may, at their option, terminate the
Revolving Commitments and this credit facility. Any notice of termination given by
the Borrowers shall be irrevocable. On the termination date, the Borrowers shall
make Full Payment of all Obligations.
(b) Concurrently with termination of the Revolving Commitments, for whatever
reason (including an Event of Default), the Borrowers shall pay to the Agent, for
the Pro Rata benefit of the Lenders and as liquidated damages for loss of bargain
(and not as a penalty), an amount equal to (i) if the termination occurs during the
first Loan Year, 1.00% of the Revolving Commitments and (ii) if the termination
occurs during the second Loan Year, 0.25% of the Revolving Commitments. No
termination charge shall be payable if the termination occurs any time during or
after the third Loan Year or in connection with a refinancing of this credit
facility by Bank of America or any of its Affiliates.
2.1.5. Overadvances. If the aggregate Revolving Loans exceed the Borrowing
Base (“Overadvance”) or the aggregate Revolving Commitments at any time, the excess
amount shall be payable by the Borrowers on demand by the Agent, but all such Revolving
Loans shall nevertheless constitute Obligations secured by the Collateral and entitled to
all benefits of the Loan Documents. Unless its authority is revoked in writing by written
notice to the Agent signed by (A) at any time when there are more than three (3) Lenders
(subject to Section 4.2), Requisite Lenders as defined by the definition of
“Requisite Lenders” without giving effect to the proviso thereof or (B) at any time
when there are three (3) or fewer Lenders (subject to Section 4.2), all Lenders
other than the Agent, the Agent may require the Lenders to honor requests for Overadvance
Loans and to forbear from requiring the Borrowers to cure an Overadvance (a) when no other
Event of Default is known to the Agent (i) as long as the Overadvance was not created by a
funding of Revolving Loans pursuant to this Section and such Overadvance does not continue
for more than 30 consecutive days (and no Overadvance may exist for at least five
consecutive days thereafter before further Overadvance Loans are required) and (ii) if the
Overadvance was created by funding pursuant to this Section, the aggregate amount
thereof is not known by the Agent to exceed $10,000,000 and (b) if an Event of Default is
known to exist (other than an Event of Default arising from the existence of the
Overadvance), if the Agent discovers an Overadvance not previously known by it to exist, as
long as from the date of such discovery the Overadvance (i) is not increased by more than
$5,000,000 and (ii) does not continue for more than 30 consecutive days. In no event shall
Overadvance Loans be required that would cause the outstanding Revolving Loans and LC
Obligations to exceed the aggregate Revolving Commitments. Any funding of an Overadvance
Loan or sufferance of an Overadvance shall not constitute a waiver by the Agent or the
Lenders of the Event of Default caused thereby. In no event shall any Borrower or other
Obligor be deemed a beneficiary of this Section nor authorized to enforce any of its terms.
2.1.6. Protective Advances. The Agent shall be authorized, in its discretion,
at any time that a Default or Event of Default exists or any conditions in Section 6
are not satisfied, to make
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Base Rate Revolving Loans (“Protective Advances”) (a) up
to an aggregate amount of $10,000,000 outstanding at any time, if the Agent deems such
Revolving Loans necessary or desirable to preserve or protect any Collateral, or to enhance
the collectibility or repayment of Obligations or (b) to pay any other amounts chargeable to
the Obligors under any Loan Documents, including costs, fees, and expenses;
provided, that without the consent of the Lenders, Protective Advances pursuant to
clause (a) preceding shall not cause the outstanding Revolving Loans and LC
Obligations to exceed the aggregate Revolving Commitments. All Protective Advances shall be
Obligations, secured by the Collateral, and shall be treated for all purposes as
Extraordinary Expenses. Each Lender shall participate in each Protective Advance on a Pro
Rata basis. The Agent’s authorization to make further Protective Advances may be revoked by
written notice to the Agent signed by (a) at any time when there are more than three (3)
Lenders (subject to Section 4.2), Requisite Lenders as defined by the definition of
“Requisite Lenders” without giving effect to the proviso thereof or (b) at any time
when there are three (3) or fewer Lenders (subject to Section 4.2), all Lenders
other than the Agent. Absent such revocation, the Agent’s determination that funding of a
Protective Advance is appropriate shall be conclusive.
2.1.7. Increase of Revolving Commitments.
(a) Upon notice to the Agent (who shall promptly notify the Lenders), the
Borrowers may, from time to time, request an increase in the aggregate Revolving
Commitments of the Lenders up to an aggregate of $200,000,000; provided that
any such increase in the aggregate Revolving Commitments of the Lenders shall be in
increments of $25,000,000. Any increase in the Revolving Commitments pursuant to
this Section 2.1.7 is subject to approval by the Agent. At the time of
sending the notice referred to in the first sentence of this clause (a), the
Borrowers (in consultation with the Agent) shall specify the time period within
which each Lender is requested to respond to such request. Each Lender shall
respond within such time period to the Agent and shall indicate whether or not such
Lender agrees to increase its Revolving Commitment and, if so, whether by an amount
equal to or less than its Pro Rata amount of such requested increase. Any Lender
not responding within such time period shall be deemed to have declined to increase
its Revolving Commitment. The Agent shall notify the Borrowers and each Lender of
the Lenders’ responses to each request made hereunder. To achieve the full amount
of a requested increase, the Borrowers may also (i) request that one or more other
Lenders, in their sole and absolute discretion, nonratably increase their Revolving
Commitment(s), (ii) and/or invite additional Persons to become Lenders under the
terms of this Agreement.
(b) If any Revolving Commitments are increased in accordance with this Section,
the Agent and the Borrowers shall determine the effective date of such increase (the
“Increase Effective Date”). The Agent and the Borrowers shall promptly
confirm in writing to the Lenders the final allocation of such increase and the
Increase Effective Date. As a condition precedent to such increase, the Borrower
Agent shall deliver to the Agent an Officer’s Certificate, dated as of the Increase
Effective Date (in sufficient copies for each Lender) (i) certifying and attaching
the resolutions adopted by the Borrowers approving or consenting to such increase,
(ii) certifying that before and after giving effect to such increase, the
representations and warranties contained in Section 9 are true and correct
on and as of the Increase Effective Date and no Default or Event of Default exists,
and (iii) certifying that the aggregate amount of the Revolving Commitments, after
giving effect to such increase, as of the Increase Effective Date may be borrowed
hereunder and will not constitute a default or event of default under the Indentures
or give rise to or result in any Lien other than a Permitted Lien, if any. In
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connection with any such increase, on request of the Agent the Borrowers shall
deliver such agreements or other documents, including without limitation a
modification of any Mortgage, as the Agent deems appropriate to continue evidencing
and perfecting its Lien on any Collateral. The Borrowers shall pay any commitment
fees and other expenses incurred in connection with any such increase and shall
prepay any LIBOR Revolving Loans outstanding on the Increase Effective Date (and pay
any costs incurred in connection with such prepayment pursuant to Section
3.9) to the extent necessary to keep outstanding LIBOR Revolving Loans ratable
with any revised Pro Rata percentages arising from any nonratable increase in the
Revolving Commitments under this Section.
(c) This Section shall supersede any provisions in Section 14.1 to the
contrary.
2.2. Reserved.
2.3. Letter of Credit Facility.
2.3.1. Issuance of Letters of Credit. The Issuing Bank agrees to issue Letters
of Credit from time to time until 30 days prior to the Termination Date as determined
pursuant to clause (a) of the definition of Termination Date (or until the
Termination Date, if earlier), on the terms set forth herein, including the following:
(a) Each Borrower acknowledges that the Issuing Bank’s willingness to issue any
Letter of Credit is conditioned upon the Issuing Bank’s receipt of a LC Application
with respect to the requested Letter of Credit, as well as such other instruments
and agreements as the Issuing Bank may customarily require for issuance of a letter
of credit of similar type and amount. The Issuing Bank shall have no obligation to
issue any Letter of Credit unless (i) the Issuing Bank receives a LC Request and LC
Application at least three Business Days prior to the requested date of issuance,
(ii) each LC Condition is satisfied and (iii) if a Defaulting Lender exists, such
Lender or Borrowers have entered into arrangements satisfactory to the Agent and the
Issuing Bank to eliminate any funding risk associated with the Defaulting Lender.
If the Issuing Bank receives written notice from a Lender at least one Business Day
before issuance of a Letter of Credit that any LC Condition has not been satisfied,
the Issuing Bank shall have no obligation to issue the requested Letter of Credit
(or any other) until such notice is withdrawn in writing by that Lender or until the
Requisite Lenders have waived such
condition in accordance with this Agreement. Prior to receipt of any such
notice, the Issuing Bank shall not be deemed to have knowledge of any failure of LC
Conditions.
(b) Letters of Credit may be requested by a Borrower only (i) to support
obligations of such Borrower incurred in the Ordinary Course of Business, on a
standby basis or (ii) for other purposes as the Agent and the Lenders may approve
from time to time in writing. The renewal or extension of any Letter of Credit
shall be treated as the issuance of a new Letter of Credit, except that delivery of
a new LC Application shall be required at the discretion of the Issuing Bank.
(c) The Borrowers assume all risks of the acts, omissions, or misuses of any
Letter of Credit by the beneficiary. In connection with issuance of any Letter of
Credit, none of the Agent, the Issuing Bank, or any Lender shall be responsible for
(i) the existence, character, quality, quantity, condition, packing, value, or
delivery of any goods purported to be represented by any Documents, (ii) any
differences or variation in the
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character, quality, quantity, condition, packing,
value, or delivery of any goods from that expressed in any Documents, (iii) the
form, validity, sufficiency, accuracy, genuineness, or legal effect of any Documents
or of any endorsements thereon, (iv) the time, place, manner, or order in which
shipment of goods is made, (v) partial or incomplete shipment of, or failure to
ship, any goods referred to in a Letter of Credit or Documents, (vi) any deviation
from instructions, delay, default, or fraud by any shipper or other Person in
connection with any goods, shipment, or delivery, (vii) any breach of contract
between a shipper or vendor and a Borrower, (viii) errors, omissions, interruptions,
or delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex, telecopy, e-mail, telephone, or otherwise, (ix) errors in interpretation of
technical terms, (x) the misapplication by a beneficiary of any Letter of Credit or
the proceeds thereof, (xi) or any consequences arising from causes beyond the
control of the Issuing Bank, the Agent, or any Lender, including any act or omission
of a Governmental Authority. The rights and remedies of the Issuing Bank under the
Loan Documents shall be cumulative. The Issuing Bank shall be fully subrogated to
the rights and remedies of each beneficiary whose claims against the Borrowers are
discharged with proceeds of any Letter of Credit.
(d) In connection with its administration of and enforcement of rights or
remedies under any Letters of Credit or LC Documents, the Issuing Bank shall be
entitled to act, and shall be fully protected in acting, upon any certification,
notice, or other communication in whatever form believed by the Issuing Bank, in
good faith, to be genuine and correct and to have been signed, sent or made by a
proper Person. The Issuing Bank may consult with and employ legal counsel,
accountants, and other experts to advise it concerning its obligations, rights, and
remedies, and shall be entitled to act upon, and shall be fully protected in any
action taken in good faith reliance upon, any advice given by such experts. The
Issuing Bank may employ agents and attorneys-in-fact in connection with any matter
relating to Letters of Credit or LC Documents, and shall not be liable for the
negligence or misconduct of any such agents or attorneys-in-fact selected with
reasonable care.
2.3.2. Reimbursement; Participations.
(a) If the Issuing Bank honors any request for payment under a Letter of
Credit, the Borrowers shall pay to the Issuing Bank, in Dollars on the same day (the
“Reimbursement Date”), the amount paid by the Issuing Bank under such Letter
of
Credit, together with interest at the interest rate for Base Rate Revolving
Loans from the Reimbursement Date until payment by the Borrowers. The obligation of
the Borrowers to reimburse the Issuing Bank for any payment made under a Letter of
Credit shall be absolute, unconditional, irrevocable, and joint and several, and
shall be paid without regard to any lack of validity or enforceability of any Letter
of Credit or the existence of any claim, setoff, defense, or other right that the
Borrowers may have at any time against the beneficiary. Whether or not the Borrower
Agent submits a Notice of Borrowing, the Borrowers shall be deemed to have requested
a Borrowing of Base Rate Revolving Loans in an amount necessary to pay all amounts
due the Issuing Bank on any Reimbursement Date and each Lender agrees to fund its
Pro Rata share of such Borrowing whether or not the Revolving Commitments have
terminated, an Overadvance exists or is created thereby, or the conditions in
Section 6 are satisfied.
(b) Upon issuance of a Letter of Credit, each Lender shall be deemed to have
irrevocably and unconditionally purchased from the Issuing Bank, without recourse or
warranty, an undivided Pro Rata interest and participation in all LC Obligations
relating
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to such Letter of Credit. If the Issuing Bank makes any payment under a
Letter of Credit and the Borrowers do not reimburse such payment on the
Reimbursement Date, the Agent shall promptly notify the Lenders and each Lender
shall promptly (within one Business Day) and unconditionally pay to the Agent, for
the benefit of the Issuing Bank, such Lender’s Pro Rata share of such payment. Upon
request by a Lender, the Issuing Bank shall furnish copies of any Letters of Credit
and LC Documents in its possession at such time.
(c) The obligation of each Lender to make payments to the Agent for the account
of the Issuing Bank in connection with the Issuing Bank’s payment under a Letter of
Credit shall be absolute, unconditional, and irrevocable, not subject to (i) any
counterclaim, setoff, qualification, or exception whatsoever, and shall be made in
accordance with this Agreement under all circumstances, irrespective of any lack of
validity or unenforceability of any Loan Documents, (ii) any draft, certificate, or
other document presented under a Letter of Credit having been determined to be
forged, fraudulent, invalid, or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect, or (iii) the existence of any setoff or
defense that any Obligor may have with respect to any Obligations. The Issuing Bank
does not assume any responsibility for any failure or delay in performance or any
breach by any Borrower or other Person of any obligations under any LC Documents.
The Issuing Bank does not make to the Lenders any express or implied warranty,
representation, or guaranty with respect to the Collateral, the LC Documents, or any
Obligor. The Issuing Bank shall not be responsible to any Lender for (x) any
recitals, statements, information, representations, or warranties contained in, or
for the execution, validity, genuineness, effectiveness, or enforceability of any LC
Documents, (y) the validity, genuineness, enforceability, collectibility, value, or
sufficiency of any Collateral or the perfection of any Lien therein (z) or the
assets, liabilities, financial condition, results of operations, business,
creditworthiness, or legal status of any Obligor.
(d) No Issuing Bank Indemnitee shall be liable to any Lender or other Person
for any action taken or omitted to be taken in connection with any LC Documents
except as a result of such Issuing Bank Indemnitee’s actual gross negligence or
willful misconduct. The Issuing Bank shall not have any liability to any Lender if
the Issuing
Bank refrains from any action under any Letter of Credit or LC Documents until
it receives written instructions from the Requisite Lenders.
2.3.3. Cash Collateral. If any LC Obligations, whether or not then due or
payable, shall for any reason be outstanding at any time (a) that an Event of Default
exists, (b) that Availability is less than zero, (c) after the Termination Date, or (d)
within ten days prior to the Termination Date, then the Borrowers shall, at the Issuing
Bank’s or the Agent’s request, Cash Collateralize the stated amount of all outstanding
Letters of Credit and pay to the Issuing Bank the amount of all other outstanding LC
Obligations. The Borrowers shall, on demand by the Issuing Bank or the Agent from
time to time, Cash Collateralize the LC Obligations of any Defaulting Lender. If the
Borrowers fail to Cash Collateralize outstanding Letters of Credit as required herein, the
Lenders may (and shall upon direction of the Agent) advance, as Revolving Loans, the amount
of the Cash Collateral required (whether or not the Revolving Commitments have terminated,
an Overadvance exists, or the conditions in Section 6 are satisfied).
SECTION 3. INTEREST, FEES, AND CHARGES
3.1. Interest.
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3.1.1. Rates and Payment of Interest.
(a) The Obligations shall bear interest (i) if a Base Rate Revolving Loan, at
the Base Rate in effect from time to time, plus the Applicable Margin, (ii)
if a LIBOR Revolving Loan, at LIBOR for the applicable Interest Period, plus
the Applicable Margin; and (iii) if any other Obligation (including, to the extent
permitted by law, interest not paid when due), at the Base Rate in effect from time
to time, plus the Applicable Margin for Base Rate Revolving Loans. Interest
shall accrue from the date the Revolving Loan is advanced or the Obligation is
incurred or payable, until paid by the Borrowers. If a Revolving Loan is repaid on
the same day made, one day’s interest shall accrue.
(b) During an Insolvency Proceeding with respect to any Borrower, or during the
existence of any other Event of Default if the Agent or the Requisite Lenders in
their discretion so elect, the Obligations shall bear interest at the Default Rate.
Each Borrower acknowledges that the cost and expense to the Agent and each Lender
due to an Event of Default are difficult to ascertain and that the Default Rate is a
fair and reasonable estimate to compensate the Agent and the Lenders for such added
cost and expense.
(c) Interest accrued on the Revolving Loans shall be due and payable in
arrears, (i) on the first day of each month, (ii) on any date of prepayment, with
respect to the principal of the Revolving Loans being prepaid, and (iii) on the
Termination Date. Interest accrued on any other Obligations shall be due and
payable as provided in the Loan Documents and, if no payment date is specified,
shall be due and payable on demand. Notwithstanding the foregoing, interest accrued
at the Default Rate shall be due and payable on demand.
3.1.2. Application of LIBOR to Outstanding Revolving Loans.
(a) The Borrowers may on any Business Day, subject to submission of a Notice of
Conversion/Continuation, elect to convert any portion of the Base Rate Revolving
Loans to, or to continue any LIBOR Revolving Loan at the end of its Interest Period
as, a LIBOR Revolving Loan. During any Event of Default, the Agent may (and shall
at the direction of the Requisite Lenders) declare that no Revolving Loan may be
made, converted, or continued as a LIBOR Revolving Loan.
(b) Whenever the Borrowers desire to convert or continue Revolving Loans as
LIBOR Revolving Loans, the Borrower Agent shall submit a Notice of
Conversion/Continuation to the Agent no later than 11:00 a.m. at least three
Business Days before the requested conversion or continuation date. Promptly after
receiving any such notice, the Agent shall notify each Lender thereof. Each Notice
of Conversion/Continuation shall be irrevocable and shall specify the aggregate
principal amount of Revolving Loans to be converted or continued, the conversion or
continuation date (which shall be a Business Day), and the duration of the Interest
Period (which shall be deemed to be one month if not specified). If, upon the
expiration of any Interest Period in respect of any LIBOR Revolving Loans, the
Borrowers shall have failed to submit a Notice of Conversion/Continuation, they
shall be deemed to have elected to convert such Revolving Loans into Base Rate
Revolving Loans.
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3.1.3. Interest Periods. In connection with the making, conversion, or
continuation of any LIBOR Revolving Loans, the Borrowers shall select an interest period
(“Interest Period”) to apply, which interest period shall be one, two, or three
months; provided that:
(a) the Interest Period shall commence on the date the Revolving Loan is made
or continued as, or converted into, a LIBOR Revolving Loan, and shall expire on the
numerically corresponding day in the calendar month at its end;
(b) if any Interest Period commences on a day for which there is no
corresponding day in the calendar month at its end or if such corresponding day
falls after the last Business Day of such month, then the Interest Period shall
expire on the last Business Day of such month, and if any Interest Period would
expire on a day that is not a Business Day, the period shall expire on the next
Business Day; and
(c) no Interest Period shall extend beyond the Termination Date.
3.1.4. Interest Rate Not Ascertainable. If the Agent shall determine that on
any date for determining LIBOR, due to any circumstance affecting the London interbank
market, adequate and fair means do not exist for ascertaining such rate on the basis
provided herein, then the Agent shall immediately notify the Borrowers of such
determination. Until the Agent notifies the Borrowers that such circumstance no longer
exists, the obligation of the Lenders to make LIBOR Revolving Loans shall be suspended, and
no further Revolving Loans may be converted into or continued as LIBOR Revolving Loans.
3.2. Fees.
3.2.1. Unused Line Fee. The Borrowers shall pay to the Agent, for the Pro Rata
benefit of the Lenders, a fee equal to the per annum percentage specified in the definition
of Unused Line Fee Percentage multiplied by the amount by which the Revolving
Commitments exceed the average daily balance of Revolving Loans and stated amount of Letters
of Credit during each
month. Such fee shall be payable in arrears, on the first Business Day of each month
and on the Termination Date.
3.2.2. LC Facility Fees. The Borrowers shall pay (a) to the Agent, for the Pro
Rata benefit of the Lenders, a fee equal to the Applicable Margin in effect for LIBOR
Revolving Loans, multiplied by the average daily stated amount of Letters of Credit,
which fee shall be payable monthly in arrears, on the first Business Day of each month, (b)
to the Agent, for its own account, a fronting fee of 0.25% per annum, multiplied by
the average daily stated amount of Letters of Credit, which fee shall be payable monthly in
arrears, on the first Business Day of each month, and (c) to the Issuing Bank, for its own
account, all customary charges associated with the issuance, amending, negotiating, payment,
processing, transfer, and administration of Letters of Credit, which charges shall be paid
as and when incurred. During an Event of Default, the fee payable under clause (a)
preceding shall be equal to the Applicable Margin in effect for LIBOR Revolving Loans,
plus 2.00% per annum, multiplied by the average daily stated amount of
Letters of Credit.
3.2.3. Fee Letters. The Borrowers shall pay the fees as provided by the Fee
Letters.
3.3. Computation of Interest, Fees, Yield Protection. All interest, as well as fees
and other charges calculated on a per annum basis, shall be computed for the actual days elapsed,
based on a year of 360 days. Each determination by the Agent of any interest, fees, or interest
rate hereunder shall be final,
41
conclusive, and binding for all purposes, absent manifest error.
All fees shall be fully earned when due and shall not be subject to rebate or refund, nor subject
to proration except as specifically provided herein. All fees payable under Section 3.2
are compensation for services and are not, and shall not be deemed to be, interest or any other
charge for the use, forbearance, or detention of money. A certificate as to amounts payable by the
Borrowers under Section 3.4, Section 3.6, Section 3.7, Section 3.9,
or Section 5.9, submitted to the Borrowers by the Agent or the affected Lender, as
applicable, shall be final, conclusive, and binding for all purposes, absent manifest error.
3.4. Reimbursement Obligations. The Borrowers shall reimburse the Agent for all
Extraordinary Expenses incurred by it. The Borrowers shall also reimburse the Agent for all
accounting, appraisal, consulting, reasonable legal, and other fees, costs, and expenses incurred
by it in connection with (a) negotiation and preparation of any Loan Documents, including any
amendment or other modification thereof, (b) administration of and actions relating to any
Collateral, Loan Documents, and transactions contemplated thereby, including any actions taken to
perfect or maintain priority of the Agent’s Liens on any Collateral, to maintain any insurance
required hereunder, or to verify Collateral, and (c) subject to the limits of Section
10.1.1(b), each inspection, audit, or appraisal with respect to any Obligor or Collateral. All
amounts reimbursable by the Borrowers under this Section shall constitute Obligations secured by
the Collateral and shall be payable on demand.
3.5. Illegality. Notwithstanding anything to the contrary herein, if (a) any change
in any law or interpretation thereof by any Governmental Authority makes it unlawful for a Lender
to make or maintain a LIBOR Revolving Loan or to maintain any Revolving Commitment with respect to
LIBOR Revolving Loans or (b) a Lender determines that the making or continuance of a LIBOR
Revolving Loan has become impracticable as a result of a circumstance that adversely affects the
London interbank market or the position of such Lender in such market, then such Lender shall give
notice thereof (which notice shall include supporting documentation) to the Agent and the Borrowers
and may (y) declare that LIBOR Revolving Loans will not thereafter be made by such Lender,
whereupon any request for a LIBOR Revolving Loan from such Lender shall be deemed to be a request
for a Base Rate Revolving Loan unless such Lender’s declaration has been withdrawn (and it shall be
withdrawn promptly upon
cessation of the circumstances described in clause (a) or clause (b)
preceding) and/or (z) require that all outstanding LIBOR Revolving Loans made by such Lender be
converted to Base Rate Revolving Loans immediately, in which event all outstanding LIBOR Revolving
Loans of such Lender shall be immediately converted to Base Rate Revolving Loans.
3.6. Increased Costs. If, by reason of (y) the introduction of or any change
(including any change by way of imposition or increase of Statutory Reserves or other reserve
requirements) in any law or interpretation thereof or (z) the compliance with any guideline or
request from any Governmental Authority or other Person exercising control over banks or financial
institutions generally (whether or not having the force of law):
(a) a Lender shall be subject to any Tax with respect to any LIBOR Revolving Loan or
Letter of Credit or its obligation to make LIBOR Revolving Loans, issue Letters of Credit,
or participate in LC Obligations, or a change shall result in the rate or basis of taxation
of any payment to a Lender with respect to its LIBOR Revolving Loans or its obligation to
make LIBOR Revolving Loans, issue Letters of Credit, or participate in LC Obligations
(except for, in each case, for Indemnified Taxes or Other Taxes which are covered by
Section 5.9, and Excluded Taxes); or
(b) any reserve (including any imposed by the Board of Governors), special deposits, or
similar requirement against assets of, deposits with, or for the account of, or credit
extended by, a Lender shall be imposed or deemed applicable, or any other condition
affecting a Lender’s
42
LIBOR Revolving Loans or obligation to make LIBOR Revolving Loans,
issue Letters of Credit, or participate in LC Obligations shall be imposed on such Lender or
the London interbank market;
and as a result there shall be an increase in the cost to such Lender of agreeing to make or
making, funding, or maintaining LIBOR Revolving Loans, Letters of Credit, or participations in LC
Obligations (except to the extent already included in determination of LIBOR), or there shall be a
reduction in the amount receivable by such Lender, then the Lender shall promptly notify the
Borrowers and the Agent of such event (which notice shall include supporting documentation), and
the Borrowers shall, within ten days following demand therefor, pay such Lender the amount of such
increased costs or reduced amounts. If a Lender determines that, because of circumstances
described above or any other circumstances arising hereafter affecting such Lender, the London
interbank market or such Lender’s position in such market, LIBOR or its Applicable Margin, as
applicable, will not adequately and fairly reflect the cost to such Lender of funding LIBOR
Revolving Loans, issuing Letters of Credit, or participating in LC Obligations, then (A) such
Lender shall promptly notify the Borrowers and the Agent of such event (which notice shall include
supporting documentation), (B) such Lender’s obligation to make LIBOR Revolving Loans, issue
Letters of Credit, or participate in LC Obligations shall be immediately suspended, until each
condition giving rise to such suspension no longer exists, and (C) such Lender shall make a Base
Rate Revolving Loan as part of any requested Borrowing of LIBOR Revolving Loans, which Base Rate
Revolving Loan shall, for all purposes, be considered part of such Borrowing.
3.7. Capital Adequacy. If a Lender determines that any introduction of or any change
in a Capital Adequacy Regulation, any change in the interpretation or administration of a Capital
Adequacy Regulation by a Governmental Authority charged with interpretation or administration
thereof, or any compliance by such Lender or any Person controlling such Lender with a Capital
Adequacy Regulation, increases the amount of capital required or expected to be maintained by such
Lender or Person (taking into consideration its capital adequacy policies and desired return on
capital) as a consequence of such Lender’s Revolving Commitments, Revolving Loans, participations
in LC Obligations, or other
obligations under the Loan Documents, then the Borrowers shall, within ten days following
demand therefor, pay such Lender an amount sufficient to compensate for such increase. A Lender’s
demand for payment shall set forth the nature of the occurrence giving rise to such compensation
(which notice shall include supporting documentation) and a calculation of the amount to be paid.
In determining such amount, the Lender may use any reasonable averaging and attribution method.
3.8. Mitigation. Each Lender agrees that, upon becoming aware that it is subject to
Section 3.5, Section 3.6, Section 3.7, or Section 5.9, it will take
reasonable measures to reduce the Borrowers’ obligations under such Sections, including funding or
maintaining its Revolving Commitments or Revolving Loans through another office, as long as use of
such measures would not adversely affect such Lender’s Revolving Commitments, Revolving Loans,
business, or interests, and would not be inconsistent with any internal policy or applicable legal
or regulatory restriction.
3.9. Funding Losses. If for any reason (other than default by a Lender) (a) any
Borrowing of, or conversion to, or continuation of, a LIBOR Revolving Loan does not occur on the
date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether or
not withdrawn), (b) any repayment or conversion of a LIBOR Revolving Loan occurs on a day other
than the end of its Interest Period, or (c) the Borrowers fail to repay a LIBOR Revolving Loan when
required hereunder, then the Borrowers shall pay to the Agent its customary administrative charge
and to each Lender all losses and expenses that it sustains as a consequence thereof, including any
loss or expense arising from liquidation or redeployment of funds or from fees payable to terminate
deposits of matching funds. The Lenders shall not be required to purchase Dollar deposits in the
London interbank market or any other
43
offshore Dollar market to fund any LIBOR Revolving Loan, but
the provisions hereof shall be deemed to apply as if each Lender had purchased such deposits to
fund its LIBOR Revolving Loans.
3.10. Maximum Interest. In no event shall interest, charges, or other amounts that
are contracted for, charged, or received by the Agent and the Lenders pursuant to any Loan
Documents and that are deemed interest under Applicable Law (“interest”) exceed the highest rate
permissible under Applicable Law (“maximum rate”). If, in any month, any interest rate, absent the
foregoing limitation, would have exceeded the maximum rate, then the interest rate for that month
shall be the maximum rate and, if in a future month, that interest rate would otherwise be less
than the maximum rate, then the rate shall remain at the maximum rate until the amount of interest
actually paid equals the amount of interest which would have accrued if it had not been limited by
the maximum rate. If, upon Full Payment of the Obligations, the total amount of interest actually
paid under the Loan Documents is less than the total amount of interest that would, but for this
Section, have accrued under the Loan Documents, then the Borrowers shall, to the extent permitted
by Applicable Law, pay to the Agent, for the account of the Lenders, (a) the lesser of (i) the
amount of interest that would have been charged if the maximum rate had been in effect at all times
or (ii) the amount of interest that would have accrued had the interest rate otherwise set forth in
the Loan Documents been in effect, minus (b) the amount of interest actually paid under the
Loan Documents. If a court of competent jurisdiction determines that the Agent or any Lender has
received interest in excess of the maximum amount allowed under Applicable Law, such excess shall
be deemed received on account of, and shall automatically be applied to reduce, the Obligations
other than interest (regardless of any erroneous application thereof by the Agent or any Lender),
and upon Full Payment of the Obligations, any balance shall be refunded to the Borrowers. In
determining whether any excess interest has been charged or received by the Agent or any Lender,
all interest at any time charged or received from the Borrowers in connection with the Loan
Documents shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated, and
spread in equal parts throughout the full term of the Obligations.
SECTION 4. LOAN ADMINISTRATION
4.1. Manner of Borrowing and Funding Revolving Loans.
4.1.1. Notice of Borrowing.
(a) Whenever the Borrowers desire funding of a Borrowing of Revolving Loans,
the Borrower Agent shall submit a Notice of Borrowing to the Agent. Such notice
must be received by the Agent no later than 11:00 a.m. (i) on the Business Day of
the requested funding date, in the case of Base Rate Revolving Loans, and (ii) at
least three Business Days prior to the requested funding date, in the case of LIBOR
Revolving Loans. Notices received after 11:00 a.m. shall be deemed received on the
next Business Day. Each Notice of Borrowing shall be irrevocable and shall specify
(w) the principal amount of the Borrowing, (x) the requested funding date (which
must be a Business Day), (y) whether the Borrowing is to be made as Base Rate
Revolving Loans or LIBOR Revolving Loans, and (z) in the case of LIBOR Revolving
Loans, the duration of the applicable Interest Period (which shall be deemed to be
one month if not specified).
(b) Unless payment is otherwise timely made by the Borrowers, the becoming due
of any Obligations (whether principal, interest, fees, or other charges, including
Extraordinary Expenses, LC Obligations, Cash Collateral, and Bank Product Debt)
shall be deemed irrevocably to be a request (without any requirement for a Notice of
Borrowing) for Base Rate Revolving Loans on the due date, in the amount of such
44
Obligations. The proceeds of such Revolving Loans shall be disbursed as direct
payment of the relevant Obligation.
(c) If the Borrowers establish a controlled disbursement account with the Agent
or any Affiliate of the Agent, then the presentation for payment of any check or
other item of payment drawn on such account at a time when there are insufficient
funds to cover it shall be deemed to be a request (without any requirement for a
Notice of Borrowing) for Base Rate Revolving Loans on the date of such presentation,
in the amount of the check and items presented for payment. The proceeds of such
Revolving Loans may be disbursed directly to the controlled disbursement account.
(d) Neither the Agent nor any Lender shall have any obligation to the Borrowers
to honor any deemed request for a Revolving Loan on or after the Termination Date,
when an Overadvance exists or would result therefrom, or when any condition in
Section 6 is not satisfied, but may do so in their discretion, without being
deemed to have waived any Default or Event of Default.
4.1.2. Fundings by the Lenders. Each Lender shall timely honor its Revolving
Commitment by funding its Pro Rata share of each Borrowing of Revolving Loans that is
properly requested hereunder. The Agent shall endeavor to notify the Lenders of each Notice
of Borrowing (or deemed request for a Borrowing) by 12:00 noon on the proposed funding date
for Base Rate Revolving Loans or by 3:00 p.m. at least two Business Days before any proposed
funding of LIBOR Revolving Loans. Each Lender shall fund to the Agent such Lender’s Pro
Rata share of the Borrowing to the account specified by the Agent in immediately available
funds not later than 2:00 p.m. on the requested funding date, unless the Agent’s notice is
received after the times provided above, in which event each Lender shall fund its Pro Rata
share by 11:00 a.m. on the next Business Day. Subject to its receipt of such amounts from
the Lenders, the Agent
may make the proceeds of the Revolving Loans available to the Borrowers by disbursing
same to the Designated Account. Unless the Agent shall have received (in sufficient time to
act) written notice from a Lender that it does not intend to fund its Pro Rata share of a
Borrowing, the Agent may assume that such Lender has deposited or promptly will deposit its
share with the Agent, and the Agent may disburse a corresponding amount to the Borrowers.
If a Lender’s share of any Borrowing or of any settlement pursuant to Section
4.1.3(b) is not in fact received by the Agent, then the Borrowers agree to repay to the
Agent on demand the amount of such share, together with interest thereon from the
date disbursed until repaid, at the rate applicable to such Borrowing.
4.1.3. Agent Advances; Settlement.
(a) The Agent may, but shall not be obligated to, advance Agent Advances to the
Borrowers out of the Agent’s own funds unless the funding is specifically required
to be made by all Lenders hereunder. Each Agent Advance shall constitute a
Revolving Loan for all purposes, except that payments thereon shall be made to the
Agent for its own account. The obligation of the Borrowers to repay Agent Advances
shall be evidenced by the records of the Agent and need not be evidenced by any
promissory note. Agent Advances shall be immediately due and payable by the
Borrowers at any time on demand by the Agent in its discretion, whether due to the
failure of any Lender to make settlement on a settlement date as provided below or
for any other reason.
(b) To facilitate administration of the Revolving Loans, the Lenders and the
Agent agree (which agreement is solely among them, and not for the benefit of or
45
enforceable by any Borrower) that settlement among them with respect to Agent
Advances and other Revolving Loans may take place on a date determined from time to
time by the Agent, which shall occur at least once every five Business Days. On
each settlement date, settlement shall be made with each Lender in accordance with
the Settlement Report delivered by the Agent to the Lenders. Between settlement
dates, the Agent may in its discretion apply payments on Revolving Loans to Agent
Advances, regardless of any designation by any Borrower or any provision herein to
the contrary. Each Lender’s obligation to make settlements with the Agent is
absolute and unconditional (subject to the second sentence of Section 4.2),
without offset, counterclaim, or other defense, and whether or not the Revolving
Commitments have terminated, an Overadvance exists, or the conditions in Section
6 are satisfied. If, due to an Insolvency Proceeding with respect to a Borrower
or otherwise, any Agent Advances may not be settled among the Lenders hereunder,
then each Lender shall be deemed to have purchased from the Agent a Pro Rata
participation in each unpaid Agent Advance and shall transfer the amount of such
participation to the Agent, in immediately available funds, within one Business Day
after the Agent’s request therefor.
4.1.4. Telephonic Notices. Each Borrower authorizes the Agent and the Lenders
to extend Base Rate Revolving Loans and transfer funds to or on behalf of the Borrowers
based on telephonic instructions. If requested by the Agent, the Borrowers shall confirm
each such telephonic request by prompt submission to the Agent of a Notice of Borrowing or
other written request, as applicable. If any Notice of Borrowing or other written request
submitted to the Agent differs in any material respect from the action taken by the Agent or
the Lenders, the records of the Agent and the Lenders shall govern. Neither the Agent nor
any Lender shall have any liability for any loss suffered by a Borrower as a result of the
Agent or any Lender acting upon its understanding of telephonic instructions from a person
believed in good faith by the Agent or any
Lender to be a person authorized to give such instructions on a Borrower’s behalf. The
Agent may in its sole discretion refuse to act upon any telephonic instructions received
from the Borrower Agent or any Borrower.
4.1.5. Original Obligations. Settlement shall be made among the Lender’s on
the Closing Date in respect of Original Obligations outstanding on the Closing Date in
accordance with each such Lender’s respective Pro Rata percentage.
4.2. Defaulting Lender. The Agent may (but shall not be required to), in its
discretion, retain any payments or other funds received by the Agent that are to be provided to a
Defaulting Lender hereunder, and may apply such funds to such Lender’s defaulted obligations or
readvance the funds to Borrowers in accordance with this Agreement. The failure of any Lender to
fund a Loan, to make any payment in respect of LC Obligations or to otherwise perform its
obligations hereunder shall not relieve any other Lender of its obligations, and no Lender shall be
responsible for default by another Lender. The Lenders and the Agent agree (which agreement is
solely among them, and not for the benefit of or enforceable by any Borrower) that, solely for
purposes of determining a Defaulting Lender’s right to vote on matters relating to the Loan
Documents and to share in payments, fees and Collateral proceeds thereunder, a Defaulting Lender
shall not be deemed to be a “Lender” until all its defaulted obligations have been cured.
4.3. Number and Amount of LIBOR Revolving Loans; Determination of Rate. For ease of
administration, all LIBOR Revolving Loans having the same length and beginning date of their
Interest Periods shall be aggregated together, and such Revolving Loans shall be allocated among
the Lenders on a Pro Rata basis. No more than six (6) aggregated LIBOR Revolving Loans may be
outstanding at any time, and each aggregate LIBOR Revolving Loan when made, continued, or converted
shall be in a
46
minimum amount of $5,000,000, or a multiple of $1,000,000 in excess thereof. Upon
determining LIBOR for any Interest Period requested by the Borrowers, the Agent shall promptly
notify the Borrowers thereof by telephone or electronically and, if requested by the Borrowers,
shall confirm any telephonic notice in writing.
4.4. Borrower Agent. Each Borrower hereby designates Amkor (the “Borrower
Agent”) as its representative and agent for all purposes under the Loan Documents, including
(a) requests for Revolving Loans and Letters of Credit, (b) designation of interest rates, (c)
delivery or receipt of communications with the Agent, the Issuing Bank, or any Lender, (d)
preparation and delivery of Borrowing Base Certificates and financial reports, (e) receipt and
payment of Obligations, (f) requests for waivers, amendments, or other accommodations, (g) actions
under the Loan Documents (including in respect of compliance with covenants), and (h) all other
dealings with the Agent, the Issuing Bank, or any Lender. The Borrower Agent hereby accepts such
appointment. The Agent and the Lenders shall be entitled to rely upon, and shall be fully
protected in relying upon, any notice or communication (including any Notice of Borrowing or any
Notice of Conversion/Continuation) delivered by the Borrower Agent on behalf of any Borrower. The
Agent and the Lenders may give any notice or communication with a Borrower hereunder to the
Borrower Agent on behalf of such Borrower. The Agent shall have the right, in its discretion, to
deal exclusively with the Borrower Agent for any or all purposes under the Loan Documents. Each
Borrower agrees that any notice, election, communication, representation, agreement, or undertaking
made on its behalf by the Borrower Agent shall be binding upon and enforceable against it.
4.5. One Obligation. The Revolving Loans, LC Obligations, and other Obligations shall
constitute one general obligation of the Borrowers and (unless otherwise expressly provided in any
Loan Document) shall be secured by the Agent’s Lien upon all Collateral; provided that the Agent
and each
Lender shall be deemed to be a creditor of, and the holder of a separate claim against, each
Borrower to the extent of any Obligations jointly or severally owed by such Borrower.
4.6. Effect of Termination. On the effective date of any termination of the Revolving
Commitments, all Obligations shall be immediately due and payable, and Bank of America and its
Affiliates may terminate their respective Bank Products (including, with the consent of the Agent,
any Cash Management Services). All undertakings of the Borrowers contained in the Loan Documents
shall survive any termination, and the Agent shall retain its Liens in the Collateral and all of
its rights and remedies under the Loan Documents until Full Payment of the Obligations.
Notwithstanding Full Payment of the Obligations, the Agent shall not be required to terminate its
Liens in any Collateral unless, with respect to any damages the Agent may incur as a result of the
dishonor or return of Payment Items applied to Obligations, the Agent receives (a) a written
agreement, executed by the Borrowers and any Person whose advances are used in whole or in part to
satisfy the Obligations, indemnifying the Agent and the Lenders from any such damages or (b) such
Cash Collateral as the Agent, in its discretion, deems necessary to protect against any such
damages. The provisions of Sections 2.3, 3.4, 3.6, 3.7,
3.9, 5.5, 5.9, 12, 14.2, 14.3, and this Section
shall survive Full Payment of the Obligations and (unless expressly provided) any release relating
to this credit facility.
SECTION 5. PAYMENTS
5.1. General Payment Provisions. All payments of Obligations shall be made in
Dollars, without offset, counterclaim, or defense of any kind, free of (and without deduction for)
any Taxes, and in immediately available funds, not later than 12:00 noon on the due date. Any
payment after such time shall be deemed made on the next Business Day. The Borrowers may, at the
time of payment, specify to the Agent the Obligations to which such payment is to be applied, but
the Agent shall in all events retain the right to apply such payment in such manner as the Agent,
subject to the provisions hereof, may
47
determine to be appropriate. Any payment of a LIBOR
Revolving Loan prior to the end of its Interest Period shall be accompanied by all amounts due
under Section 3.9. Any prepayment of Revolving Loans shall be applied first to Base Rate
Revolving Loans and then to LIBOR Revolving Loans.
5.2. Repayment of Revolving Loans. Revolving Loans shall be due and payable in full
on the Termination Date, unless payment is sooner required hereunder. Revolving Loans may be
prepaid from time to time, without penalty or premium. At all times when an Event of Default
exists and upon notice by the Agent to the Borrower Agent during a Triggered Activation Period, to
the extent any Revolving Loans are outstanding, the Borrowers shall remit to the Agent for
application to the Obligations the Net Proceeds of any disposition of Collateral received by such
Borrower. Notwithstanding anything herein to the contrary, if an Overadvance exists, the Borrowers
shall, on the sooner of the Agent’s demand or the first Business Day after any Borrower has
knowledge thereof, repay the outstanding Revolving Loans in an amount sufficient to reduce the
principal balance of Revolving Loans to the Borrowing Base.
5.3. Reserved.
5.4. Payment of Other Obligations. Obligations other than Revolving Loans, including
LC Obligations and Extraordinary Expenses, shall be paid by the Borrowers as provided in the Loan
Documents or, if no payment date is specified, on demand.
5.5. Marshaling; Payments Set Aside. None of the Agent or the Lenders shall be under
any obligation to marshal any assets in favor of any Obligor or against any Obligations. If any
Obligor makes a payment to the Agent or the Lenders, or if the Agent or any Lender receives payment
from the proceeds of Collateral, exercise of setoff, or otherwise, and such payment is subsequently
invalidated or required to
be repaid to a trustee, receiver, or any other Person, then the Obligations originally
intended to be satisfied, and all Liens, rights, and remedies therefor, shall be revived and
continued in full force and effect as if such payment had not been received and any enforcement or
setoff had not occurred.
5.6. Post-Default Allocation of Payments.
5.6.1. Allocation. Notwithstanding anything herein to the contrary, during an
Event of Default, monies to be applied to the Obligations, whether arising from payments by
the Obligors, realization on Collateral, or otherwise, shall be allocated as follows:
(a) first, to all fees and expenses, including Extraordinary Expenses,
owing to the Agent;
(b) second, to all amounts owing to the Agent on Agent Advances or
Protective Advances, or to the Issuing Bank on LC Obligations;
(c) third, to all Obligations constituting fees (excluding amounts
relating to Bank Products);
(d) fourth, to all Obligations constituting interest (excluding amounts
relating to Bank Products);
(e) fifth, Pro Rata, to provide Cash Collateral for outstanding Letters
of Credit and to all other Obligations, other than Bank Product Debt; and
(f) last, to Bank Product Debt.
48
Amounts shall be applied to each category of Obligations set forth above until Full Payment
thereof and then to the next category. If amounts are insufficient to satisfy a category,
they shall be applied on a pro rata basis among the Obligations in the category. Amounts
distributed with respect to any Bank Product Debt shall be the lesser of the applicable Bank
Product Amount last reported to Agent or the actual Bank Product Debt as calculated by the
methodology reported to Agent for determining the amount due. Agent shall have no
obligation to calculate the amount to be distributed with respect to any Bank Product Debt,
but may rely upon written notice of the amount (setting forth a reasonably detailed
calculation) from the Secured Party. In the absence of such notice, Agent may assume the
amount to be distributed is the Bank Product Amount last reported to it. The allocations
set forth in this Section are solely to determine the rights and priorities of the Agent and
the Lenders as among themselves, and may be changed by agreement among them without the
consent of any Obligor. This Section is not for the benefit of or enforceable by any
Borrower.
5.6.2. Erroneous Application. The Agent shall not be liable for any
application of amounts made by it in good faith and, if any such application is subsequently
determined to have been made in error, the sole recourse of any Lender or other Person to
which such amount should have been made shall be to recover the amount from the Person that
actually received it (and, if such amount was received by any Lender, such Lender hereby
agrees to return it).
5.7. Application of Payments. At all times during the existence of a Triggered
Activation Period, the ledger balance in any Dominion Account as of the end of a Business Day shall
be applied to the Obligations at the beginning of the next Business Day. Each Borrower irrevocably
waives the right to direct the application of any payments or Collateral proceeds pursuant to this
Section 5.7, and agrees that the Agent shall have the continuing, exclusive right (subject
to Section 5.6) to apply and reapply same against the Obligations, in such manner as the
Agent deems advisable, notwithstanding any entry by the Agent in its records. If, as a result of
the Agent’s receipt of Payment Items or proceeds of Collateral, a credit balance exists, the
balance shall not accrue interest in favor of the Borrowers and shall be made available to the
Borrowers as long as no Event of Default exists.
5.8. Loan Account; Account Stated.
5.8.1. Loan Account. The Agent shall maintain in accordance with its usual and
customary practices an account or accounts (“Loan Account”) evidencing the
Indebtedness of the Borrowers resulting from each Revolving Loan or issuance of a Letter of
Credit from time to time, including the amount of principal and interest payable and
outstanding LC Obligations. Any failure of the Agent to record anything in the Loan
Account, or any error in doing so, shall not limit or otherwise affect the obligation of the
Borrowers to pay any amount owing hereunder. The Agent may maintain a single Loan Account
in the name of the Borrower Agent, and each Borrower confirms that such arrangement shall
have no effect on the joint and several character of its liability for the Obligations.
5.8.2. Entries Binding. Entries made in the Loan Account shall constitute
presumptive evidence of the information contained therein. If any information contained in
the Loan Account is provided to or inspected by any Person, then such information shall be
conclusive and binding on such Person for all purposes absent manifest error, except to the
extent such Person notifies the Agent in writing within 30 days after receipt or inspection
that specific information is subject to dispute.
49
5.9. Taxes.
5.9.1. Payments Free of Taxes. All payments by Obligors of Obligations shall
be free and clear of and without reduction for any Taxes. If Applicable Law requires any
Obligor or Agent to withhold or deduct any Taxes (including backup withholding or
withholding Taxes), the withholding or deduction shall be based on information provided
pursuant to Section 5.10, if any, and Agent shall pay the amount withheld or
deducted to the relevant Governmental Authority. If the withholding or deduction is made on
account of Indemnified Taxes or Other Taxes, the sum payable by the Borrowers shall be
increased so that Agent, Lender or Issuing Bank, as applicable, receives an amount equal to
the sum it would have received if no such withholding or deduction (including deductions
applicable to additional sums payable under this Section) had been made. Without limiting
the foregoing, the Borrowers shall timely pay all Other Taxes to the relevant Governmental
Authorities.
5.9.2. Payment. The Borrowers shall indemnify, hold harmless and reimburse
(within 10 days after demand therefor) Agent, Lenders and Issuing Bank for any Indemnified
Taxes or Other Taxes (including those attributable to amounts payable under this Section)
withheld or deducted by any Obligor or Agent, or paid by Agent, any Lender or Issuing Bank,
with respect to any Obligations, Letters of Credit or Loan Documents, whether or not such
Taxes were properly asserted by the relevant Governmental Authority, and including all
penalties, interest and reasonable expenses relating thereto, as well as any amount that a
Lender or Issuing Bank fails to pay indefeasibly to Agent under Section 5.10. A
certificate as to the amount of any such payment or liability delivered to the Borrower
Agent by Agent, or by a Lender or Issuing Bank (with a copy to Agent), shall be conclusive,
absent manifest error. As soon as practicable after any payment of Taxes by a Borrower, the
Borrower Agent shall deliver to Agent a receipt from the Governmental Authority or other
evidence of payment satisfactory to Agent. If the Agent or a Lender determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to which it has
been indemnified by the Borrower or with respect to which the Borrower has paid additional
amounts pursuant to this Section, it shall pay over such refund to the Borrower (but only to
the extent of indemnity payments made, or additional amounts paid, by the Borrower under
this Section with respect to the Indemnified Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Agent or such Lender and without interest
(other than any interest paid by the relevant Governmental Authority with respect to such
refund), provided that the Borrower, upon the request of the Agent or such Lender,
agrees to repay the amount paid over to the Borrower (plus any penalties, interest
or other charges imposed by the relevant Governmental Authority) to the Agent or such Lender
in the event the Agent or such Lender is required to repay such refund to such Governmental
Authority. This Section shall not be construed to require the Agent or any Lender to make
available its tax returns (or any other information relating to its Taxes that it deems
confidential) to the Borrower or any other Person.
5.10. Lender Tax Information.
5.10.1. Status of Lenders. Each Lender shall deliver documentation and
information to Agent and the Borrower Agent, at the times and in form required by Applicable
Law or reasonably requested by Agent or the Borrower Agent, sufficient to permit Agent or
the Borrowers to determine (a) whether or not payments made with respect to Obligations are
subject to Taxes, (b) if applicable, the required rate of withholding or deduction, and (c)
such Lender’s entitlement to any available exemption from, or reduction of, applicable Taxes
for such payments or otherwise to establish such Lender’s status for withholding tax
purposes in the applicable jurisdiction.
5.10.2. Documentation. If a Borrower is resident for tax purposes in the
United States, any Lender that is a “United States person” within the meaning of section
7701(a)(30) of the
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Code shall deliver to Agent and the Borrower Agent IRS Form W-9 or such
other documentation or information prescribed by Applicable Law or reasonably requested by
Agent or the Borrower Agent to determine whether such Lender is subject to backup
withholding or information reporting requirements. If any Foreign Lender is entitled to any
exemption from or reduction of withholding tax for payments with respect to the Obligations,
it shall deliver to Agent and the Borrower Agent, on or prior to the date on which it
becomes a Lender hereunder (and from time to time thereafter upon request by Agent or the
Borrower Agent, but only if such Foreign Lender is legally entitled to do so), (a) IRS Form
W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States
is a party; (b) IRS Form W-8ECI; (c) IRS Form W-8IMY and all required supporting
documentation; (d) in the case of a Foreign Lender claiming the benefits of the exemption
for portfolio interest under section 881(c) of the Code, IRS Form W-8BEN and a certificate
showing such Foreign Lender is not (i) a “bank” within the meaning of section 881(c)(3)(A)
of the Code, (ii) a “10 percent shareholder” of any Obligor within the meaning of section
881(c)(3)(B) of the Code, or (iii) a “controlled foreign corporation” described in section
881(c)(3)(C) of the Code; or (e) any other form prescribed by Applicable Law as a basis for
claiming exemption from or a reduction in withholding tax, together with such supplementary
documentation necessary to allow Agent and the Borrowers to determine the withholding or
deduction required to be made.
5.10.3. Lender Obligations. Each Lender and Issuing Bank shall promptly notify
the Borrowers and Agent of any change in circumstances that would change any claimed Tax
exemption or reduction. Each Lender and Issuing Bank shall indemnify, hold harmless and
reimburse (within 10 days after demand therefor) the Borrowers and Agent for any Taxes,
losses, claims, liabilities, penalties, interest and expenses (including reasonable
attorneys’ fees) incurred by or asserted against a Borrower or Agent by any Governmental
Authority due to such Lender’s or Issuing Bank’s failure to deliver, or inaccuracy or
deficiency in, any documentation required to be delivered by it pursuant to this Section.
Each Lender and Issuing Bank authorizes Agent to set off any amounts due to Agent under this
Section against any amounts payable to such Lender or Issuing Bank under any Loan Document.
5.11. Nature and Extent of Each Borrower’s Liability.
5.11.1. Joint and Several Liability. Each Borrower agrees that it is jointly
and severally liable for, and absolutely and unconditionally guarantees to the Agent and the
Lenders the prompt payment and performance of, all Obligations and all agreements under the
Loan Documents. Each Borrower agrees that its guaranty obligations hereunder constitute a
continuing guaranty of payment and performance and not of collection, that such obligations
shall not be discharged until Full Payment of the Obligations, and that such obligations are
absolute and unconditional, irrespective of (a) the genuineness, validity, regularity,
enforceability, subordination, or any future modification of, or change in, any Obligations
or Loan Document, or any other document, instrument, or agreement to which any Obligor is or
may become a party or liable, (b) the absence of any action to enforce this Agreement
(including this Section) or any other Loan Document, or any waiver, consent, or indulgence
of any kind by the Agent or any Lender with respect thereto, (c) the existence, value, or
condition of, or failure to perfect a Lien or to preserve rights against, any security or
guaranty for the Obligations or any action, or the absence of any action, by the Agent or
any Lender in respect thereof (including the release of any security or guaranty), (d) the
insolvency of any Obligor, (e) any election by the Agent or any Lender in an Insolvency
Proceeding for the application of Section 1111(b)(2) of the Bankruptcy Code, (f) any
borrowing
or grant of a Lien by any other Borrower as debtor-in-possession under Section 364 of
the Bankruptcy Code or otherwise, (g) the disallowance of any claims of the Agent or any
Lender against any Obligor for the repayment of any Obligations under Section 502 of the
Bankruptcy
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Code or otherwise, or (h) any other action or circumstances that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor, except Full
Payment of all Obligations.
5.11.2. Waivers.
(a) Each Borrower expressly waives all rights that it may have now or in the
future under any statute, at common law, in equity or otherwise, to compel the Agent
or the Lenders to marshal assets or to proceed against any Obligor, other Person or
security for the payment or performance of any Obligations before, or as a condition
to, proceeding against such Borrower. It is agreed among each Borrower, the Agent,
and the Lenders that the provisions of this Section are of the essence of the
transaction contemplated by the Loan Documents and that, but for such provisions,
the Agent and the Lenders would decline to make Revolving Loans and issue Letters of
Credit. Notwithstanding anything to the contrary in any Loan Document, and except
as set forth in Section 5.11.3, each Borrower expressly waives all rights at
law or in equity to subrogation, reimbursement, exoneration, contribution,
indemnification, or set off, as well as all defenses available to a surety,
guarantor, or accommodation co-obligor. Each Borrower acknowledges that its
guaranty pursuant to this Section is necessary to the conduct and promotion of its
business, and can be expected to benefit such business.
(b) The Agent and the Lenders may, in their discretion, pursue such rights and
remedies as they deem appropriate, including realization upon Collateral by judicial
foreclosure or non-judicial sale or enforcement, without affecting any rights and
remedies under this Section 5.11. If, in the exercise of any rights or
remedies, the Agent or any Lender shall forfeit any of its rights or remedies,
including its right to enter a deficiency judgment against any Borrower or any other
Person, whether because of any applicable laws pertaining to “election of remedies”
or otherwise, each Borrower consents to such action by the Agent or such Lender and
waives any claim based upon such action, even if the action may result in loss of
any rights of subrogation that any Borrower might otherwise have had but for such
action. Any election of remedies that results in denial or impairment of the right
of the Agent or any Lender to seek a deficiency judgment against any Borrower shall
not impair any other Borrower’s obligation to pay the full amount of the
Obligations. Each Borrower waives all rights and defenses arising out of an
election of remedies, such as nonjudicial foreclosure with respect to any security
for the Obligations, even though that election of remedies destroys such Borrower’s
rights of subrogation against any other Person. If the Agent bids at any
foreclosure or trustee’s sale or at any private sale, the Agent may bid all or a
portion of the Obligations and the amount of such bid need not be paid by the Agent
but shall be credited against the Obligations. The amount of the successful bid at
any such sale, whether the Agent or any other Person is the successful bidder, shall
be conclusively deemed to be the fair market value of the Collateral, and the
difference between such bid amount and the remaining balance of the Obligations
shall be conclusively deemed to be the amount of the Obligations guaranteed under
this Section 5.11, notwithstanding that any present or future law or court
decision may have the effect of reducing the amount of any deficiency claim to which
the Agent or any Lender might otherwise be entitled but for such bidding at any such
sale.
5.11.3. Extent of Liability; Contribution.
(a) Notwithstanding anything herein to the contrary, each Borrower’s liability
under this Section 5.11 shall be limited to the greater of (i) all amounts
for which
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such Borrower is primarily liable, as described below and (ii) such
Borrower’s Allocable Amount.
(b) If any Borrower makes a payment under this Section 5.11 of any
Obligations (other than amounts for which such Borrower is primarily liable) (a
“Guarantor Payment”) that, taking into account all other Guarantor Payments
previously or concurrently made by any other Borrower, exceeds the amount that such
Borrower would otherwise have paid if each Borrower had paid the aggregate
Obligations satisfied by such Guarantor Payments in the same proportion that such
Borrower’s Allocable Amount bore to the total Allocable Amounts of all Borrowers,
then such Borrower shall be entitled to receive contribution and indemnification
payments from, and to be reimbursed by, each other Borrower for the amount of such
excess, pro rata based upon their respective Allocable Amounts in effect immediately
prior to such Guarantor Payment. The “Allocable Amount” for any Borrower
shall be the maximum amount that could then be recovered from such Borrower under
this Section 5.11 without rendering such payment voidable or avoidable under
Section 548 of the Bankruptcy Code or under any applicable state fraudulent transfer
or conveyance act, or similar statute or common law.
(c) Nothing contained in this Section 5.11 shall limit the liability of
any Borrower to pay Revolving Loans made directly or indirectly to that Borrower
(including Revolving Loans advanced to any other Borrower and then re-loaned or
otherwise transferred to, or for the benefit of, such Borrower), LC Obligations
relating to Letters of Credit issued to support such Borrower’s business, and all
accrued interest, fees, expenses, and other related Obligations with respect
thereto, for which such Borrower shall be primarily liable for all purposes
hereunder. The Agent and the Lenders shall have the right, at any time in their
discretion, to condition Revolving Loans and Letters of Credit upon a separate
calculation of borrowing availability for each Borrower and to restrict the
disbursement and use of such Revolving Loans and Letters of Credit to such Borrower.
5.11.4. Joint Enterprise. Each Borrower has requested that the Agent and the
Lenders make the credit facility established hereunder available to the Borrowers on a
combined basis, in order to finance the Borrowers’ business most efficiently and
economically. The Borrowers’ business is a mutual and collective enterprise, and the
Borrowers believe that consolidation of their credit facility will enhance the borrowing
power of each Borrower and ease the administration of their relationship with the Lenders,
all to the mutual advantage of the Borrowers. The Borrowers acknowledge and agree that the
Agent’s and the Lenders’ willingness to extend credit to the Borrowers and to administer the
Collateral on a combined basis, as set forth herein, is done solely as an accommodation to
the Borrowers and at the Borrowers’ request.
5.11.5. Subordination. Each Borrower hereby subordinates any claims, including
any right of payment, subrogation, contribution, and indemnity, that it may have at any time
against any other Obligor, howsoever arising, to the Full Payment of all Obligations.
SECTION 6. CONDITIONS PRECEDENT
6.1. Conditions Precedent to Initial Revolving Loans. In addition to the conditions
set forth in Section 6.2, the Lenders shall not be required to fund any requested Revolving
Loan, issue any Letter of Credit, or otherwise extend credit to the Borrowers hereunder, unless
each of the following conditions has been satisfied:
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(a) Appropriate Notes shall have been executed by the Borrowers and delivered to each
Lender that requests issuance of a Note. Each other Loan Document, including modifications
of each Mortgage, shall have been duly executed and delivered to the Agent by each of the
signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) The Agent shall have received acknowledgments of all filings or recordations
necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other
evidence satisfactory to the Agent, including UCC financing statements which terminate or
amend existing financing statements covering the Collateral, all of such financing
statements, amendments, and terminations (taken as a whole) indicating that the Agent’s
Liens are the only Liens upon the Collateral, other than Permitted Liens.
(c) To the extent requested by the Agent, the Agent shall have received duly executed
Lien Waivers from each landlord where any material amount of Collateral is maintained or
held.
(d) To the extent requested by the Agent, the Agent shall have received duly executed
Deposit Account Control Agreements with respect to any of the Borrowers’ Deposit Accounts.
(e) The Agent shall have received certificates, in form and substance satisfactory to
it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving
effect to the initial Revolving Loans and transactions hereunder, (i) such Borrower is
Solvent, (ii) no Default or Event of Default exists, (iii) the representations and
warranties set forth in Section 9 are true and correct, and (iv) such Borrower has
complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(f) The Agent shall have received a certificate of a duly authorized officer of each
Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true
and complete, and in full force and effect, without amendment except as shown, (ii) that an
attached copy of resolutions authorizing execution and delivery of the Loan Documents is
true and complete, and that such resolutions are in full force and effect, were duly
adopted, have not been amended, modified, or revoked, and constitute all resolutions adopted
with respect to this credit facility, and (iii) to the title, name, and signature of each
Person authorized to sign the Loan Documents. The Agent may conclusively rely on this
certificate until it is otherwise notified by the applicable Obligor in writing.
(g) The Agent shall have received a written opinion of Xxxxxx Xxxxxxx Xxxxxxxx &
Xxxxxx, P.C., as well as any local counsel to the Borrowers, each in form and substance
satisfactory to the Agent.
(h) The Agent shall have received copies of the charter documents of each Obligor,
certified as appropriate by the Secretary of State or another official of such Obligor’s
jurisdiction
of organization. The Agent shall have received good standing certificates for each
Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s
jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business
or ownership of Property necessitates qualification.
(i) The Agent shall have received copies of policies and certificates of insurance for
the property, casualty, and liability insurance policies carried by the Borrowers, all in
compliance with the Loan Documents.
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(j) The Agent shall have completed its legal due diligence of the Obligors with results
satisfactory to the Agent.
(k) No material adverse change in the financial condition of any Obligor or in the
value of any Collateral shall have occurred since December 31, 2008.
(l) The Borrowers shall have paid all fees and expenses to be paid to the Agent and the
Lenders on the Closing Date.
(m) Upon giving effect to the initial funding of Revolving Loans and issuance of
Letters of Credit, and the payment by the Borrowers of all fees and expenses incurred in
connection herewith as well as any payables stretched beyond their customary payment
practices, Availability shall be at least $80,000,000 taking into account all contractual
limitations on the Borrowers’ ability to incur Indebtedness.
6.2. Conditions Precedent to All Credit Extensions. The Agent, the Issuing Bank, and
the Lenders shall not be required to fund any Revolving Loans, arrange for issuance of any Letters
of Credit, or grant any other accommodation to or for the benefit of the Borrowers, unless the
following conditions are satisfied:
(a) no Default or Event of Default shall exist at the time of, or result from, such
funding, issuance, or grant;
(b) the representations and warranties of each Obligor in the Loan Documents shall be
true and correct on the date of, and upon giving effect to, such funding, issuance, or grant
(except for representations and warranties that expressly relate to an earlier date, in
which case any such representations and warranties shall be true and correct as of such
date);
(c) the certifications set forth in Section 14.15 shall be true and correct;
(d) all conditions precedent set forth in Section 6.1 and any other Loan
Document shall have been satisfied;
(e) no event shall have occurred or circumstance exist that has resulted in a Material
Adverse Effect; and
(f) with respect to issuance of a Letter of Credit, the LC Conditions shall have been
satisfied.
Each request (or deemed request) by the Borrowers for funding of a Revolving Loan, issuance of a
Letter of Credit, or grant of an accommodation shall constitute a representation by the Borrowers
that the foregoing conditions are satisfied on the date of such request and on the date of such
funding, issuance, or
grant. As an additional condition to any funding, issuance, or grant, the Agent shall have
received such other information, documents, instruments, and agreements as it deems appropriate in
connection therewith.
6.3. Limited Waiver of Conditions Precedent. If the Agent, the Issuing Bank, or the
Lenders fund any Revolving Loans, arrange for issuance of any Letters of Credit, or grant any other
accommodation when any conditions precedent are not satisfied (regardless of whether the lack of
satisfaction was known or unknown at the time), it shall not operate as a waiver of (a) the right
of the Agent, the Issuing Bank, and the Lenders to insist upon satisfaction of all conditions
precedent with
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respect to any subsequent funding, issuance, or grant nor (b) any Default or Event
of Default due to such failure of conditions or otherwise.
SECTION 7. COLLATERAL
7.1. Grant of Security Interest. To secure the prompt payment and performance of all
Obligations, each Borrower hereby grants to the Agent, for the benefit of the Secured Parties, a
continuing security interest in and Lien upon all personal Property of such Borrower, including all
of the following Property, whether now owned or hereafter acquired, and, unless noted otherwise,
wherever located:
(a) all Accounts;
(b) all Chattel Paper, including electronic chattel paper;
(c) all Commercial Tort Claims;
(d) all Deposit Accounts;
(e) all Documents;
(f) all General Intangibles, including Payment Intangibles, Software, and Intellectual
Property;
(g) all Goods, including Inventory, Equipment, and fixtures;
(h) all Instruments, excluding any notes or other instruments payable to such Borrower
from any Foreign Subsidiary;
(i) all Investment Property, excluding Equity Interests of Foreign Subsidiaries and
Equity Interests of the Excluded Domestic Subsidiaries;
(j) all Letter-of-Credit Rights;
(k) all Supporting Obligations;
(l) all Owned Real Estate;
(m) all monies, whether or not in the possession or under the control of the Agent, a
Lender, or a bailee or Affiliate of the Agent or a Lender, including any Cash Collateral;
(n) all accessions to, substitutions for, and all replacements and products, of the
foregoing;
(o) all books and records (including customer lists, files, correspondence, tapes,
computer programs, print-outs, and computer records) pertaining to the foregoing; and
(p) all proceeds of any of the foregoing Collateral described in clause (a)
through clause (o) preceding in whatever form (excluding specifically in any such
case, any notes or other instruments payable to such Borrower from any Foreign Subsidiary
and Equity Interests of Foreign Subsidiaries and Equity Interests of the Excluded Domestic
Subsidiaries), including, but not limited to, cash, deposit accounts (whether or not
comprised solely of proceeds), certificates
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of deposit, insurance proceeds (including
hazard, flood, and credit insurance), negotiable instruments and other instruments for the
payment of money, chattel paper, security agreements, documents, eminent domain proceeds,
condemnation proceeds, and tort claim proceeds.
7.2. Lien on Deposit Accounts; Cash Collateral.
7.2.1. Deposit Accounts. To further secure the prompt payment and performance
of all Obligations, each Borrower hereby grants to the Agent, for the benefit of the Secured
Parties, a continuing security interest in and Lien upon all of such Borrower’s right,
title, and interest in and to each Deposit Account of such Borrower and any deposits or
other sums at any time credited to any such Deposit Account, including any sums in any
blocked or lockbox accounts or in any accounts into which such sums are swept. Each
Borrower authorizes and directs each bank or other depository to deliver to the Agent upon
its written demand therefor, made at any time during the existence of a Triggered Activation
Period or if an Event of Default exists and without notice to such Borrower (such notice
being hereby waived), all balances in each Deposit Account maintained by such Borrower with
such depository for application to the Obligations then outstanding. Each Borrower
irrevocably appoints the Agent as such Borrower’s attorney-in-fact to collect such balances
to the extent any such delivery is not so made.
7.2.2. Cash Collateral. Any Cash Collateral may be invested, in the Agent’s
discretion, in Cash Equivalents, but the Agent shall have no duty to do so, regardless of
any agreement, understanding, or course of dealing with any Borrower, and shall have no
responsibility for any investment or loss. Each Borrower hereby grants to the Agent, for
the benefit of the Secured Parties, a security interest in all Cash Collateral held from
time to time and all proceeds thereof, as security for the Obligations, whether such Cash
Collateral is held in the Cash Collateral Account or elsewhere. The Agent may apply Cash
Collateral to the payment of any Obligations, in such order as the Agent may elect, as they
become due and payable. The Cash Collateral Account and all Cash Collateral shall be under
the sole dominion and control of the Agent. No Borrower or other Person claiming through or
on behalf of any Borrower shall have any right to any Cash Collateral, until Full Payment of
all Obligations.
7.3. Real Estate Collateral. The Obligations shall also be secured by the Mortgage
upon the Owned Real Estate. The Mortgage shall be duly recorded, at the Borrowers’ expense, in the
office where such recording is required to constitute a fully perfected Lien on the Owned Real
Estate.
7.4. Other Collateral.
7.4.1. Commercial Tort Claims. The Borrowers shall promptly notify the Agent
in writing if any Borrower has a Commercial Tort Claim (other than, as long as no Event of
Default
exists, a Commercial Tort Claim for less than $500,000) and, upon the Agent’s request,
shall promptly execute such documents and take such actions as the Agent deems appropriate
to confer upon the Agent (for the benefit of the Secured Parties) a duly perfected, first
priority Lien upon such claim.
7.4.2. Certain After-Acquired Collateral. The Borrowers shall promptly notify
the Agent in writing if, after the Closing Date, any Borrower obtains any interest in any
Collateral consisting of Deposit Accounts, Chattel Paper, Documents, Instruments,
Intellectual Property, Investment Property, or Letter-of-Credit Rights and, upon the Agent’s
request, shall promptly execute such documents and take such actions as the Agent deems
appropriate to effect the Agent’s duly perfected, first priority Lien upon such Collateral,
including obtaining any appropriate possession, control agreement, or Lien Waiver. If any
Collateral is in the possession
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of a third party, at the Agent’s request, the Borrowers
shall obtain an acknowledgment that such third party holds the Collateral for the benefit of
the Agent.
7.5. No Assumption of Liability. The Lien on Collateral granted hereunder is given as
security only and shall not subject the Agent or any Lender to, or in any way modify, any
obligation or liability of the Borrowers relating to any Collateral.
7.6. Further Assurances. Promptly upon request, the Borrowers shall deliver such
instruments, assignments, title certificates, or other documents or agreements, and shall take such
actions, as the Agent deems appropriate under Applicable Law to evidence or perfect its Lien on any
Collateral. Each Borrower authorizes the Agent to file any financing statement that indicates the
Collateral as “all assets” or “all personal property” of such Borrower, or words to similar effect,
and ratifies any action taken by the Agent before the Closing Date to effect or perfect its Lien on
any Collateral.
7.7. Continuation of Existing Liens. Nothing herein impairs or limits the
continuation of the Liens granted to the Agent under the Original Loan and Security Agreement and
the Original Security Documents, which liens are continued in full force and effect pursuant to and
as provided by Section 14.14.
SECTION 8. COLLATERAL ADMINISTRATION
8.1. Borrowing Base Certificates. By the fifteenth day of each calendar month, or
more frequently as the Agent may request following any date, if any, when Availability is less than
the greater of (a) $40,000,000 or (b) an amount equal to (i) 20.0% of the aggregate Revolver
Commitments plus (ii) $10,000,000, the Borrowers shall deliver to the Agent (and the Agent
shall promptly deliver same to the Lenders) a Borrowing Base Certificate prepared as of the last
day of the preceding calendar month. All calculations of Availability in any Borrowing Base
Certificate shall originally be made by the Borrowers and certified by a Senior Officer of the
Borrower Agent or such other officer of the Borrower Agent as may be acceptable to the Agent,
provided that the Agent may from time to time review and adjust any such calculation (a) to
reflect collections of Accounts received and (b) to the extent the calculation is not made in
accordance with this Agreement or does not accurately reflect Reserves imposed by the Agent.
8.2. Administration of Accounts.
8.2.1. Records and Schedules of Accounts. Each Borrower shall keep accurate
and complete records of its Accounts, including all payments and collections thereon, and
shall submit to the Agent, on such periodic basis as the Agent may request, a sales and
collections report, in form satisfactory to the Agent. Each Borrower shall also provide to
the Agent, on or
before the 15th day of each month, a detailed aged trial balance of all Accounts as of
the end of the preceding month, in form satisfactory to the Agent. Upon request of the
Agent, the Borrowers will deliver to the Agent, for each of their respective Account
Debtors, contact information, including names, addresses, and telephone numbers, in form
satisfactory to the Agent. If Accounts in an aggregate face amount of $10,000,000 or more
cease to be Eligible Accounts or Eligible Foreign Accounts, as applicable, the Borrowers
shall notify the Agent of such occurrence promptly (and in any event within three Business
Days) after any Borrower has knowledge thereof.
8.2.2. Taxes. If an Account of any Borrower includes a charge for any Taxes,
the Agent is authorized, in its discretion, to pay the amount thereof to the proper taxing
authority for the account of such Borrower and to charge the Borrowers therefor;
provided that neither the
58
Agent nor the Lenders shall be liable for any Taxes that
may be due from the Borrowers or with respect to any Collateral.
8.2.3. Account Verification. Whether or not a Default or Event of Default
exists, the Agent shall have the right at any time, in the name of the Agent, any designee
of the Agent, or any Borrower, to verify the validity, amount, or any other matter relating
to any Accounts of the Borrowers by mail, telephone, or otherwise. The Borrowers shall
cooperate fully with the Agent in an effort to facilitate and promptly conclude any such
verification process, and the Agent will, if any such verification is being conducted when
no Event of Default exists, use reasonable efforts to inform the Borrower (by mail,
telephone, or otherwise) that the Agent plans to conduct such verifications.
8.2.4. Maintenance of Dominion Account. The Borrowers shall maintain Dominion
Accounts pursuant to arrangements acceptable to the Agent. The Borrowers shall obtain an
agreement (in form and substance satisfactory to the Agent) from any lockbox servicer
utilized by a Borrower or the depository institution maintaining a Dominion Account (to the
extent such depository institution is not the Agent), establishing the Agent’s control over
and Lien in such lockbox or Dominion Account, under which the Agent may give written notice
at any time during a Triggered Activation Period or after the occurrence of an Event of
Default, requiring immediate deposit of all remittances received in such lockbox to a
Dominion Account or immediate transfer of all funds in such Dominion Account to the Agent
for application to the Obligations, as applicable, and waiving offset rights of such
servicer or bank against any funds collected in such lockbox or deposited into such Dominion
Account, except offset rights for customary administrative charges. The Agent and the
Lenders agree that any such notice by the Agent pursuant to this Section shall only be given
at any time after the occurrence of a Triggered Activation Period or after the occurrence of
an Event of Default. Each agreement with any lockbox servicer or depository maintaining a
Dominion Account will provide that the Agent’s authority to direct the deposit or transfer
of funds received in such lockbox or deposited in such Dominion Account will not be
effective until written notice is given by the Agent to such lockbox servicer or Dominion
Account depository. Neither the Agent nor the Lenders assume any responsibility to the
Borrowers for any lockbox arrangement or Dominion Account, including any claim of accord and
satisfaction or release with respect to any Payment Items accepted by any bank.
8.2.5. Proceeds of Collateral. The Borrowers shall request in writing and
otherwise take all reasonable steps to ensure that all payments on Accounts and all proceeds
of the sale of any other Collateral are made directly to a Dominion Account (or a lockbox
relating to a Dominion Account), provided, that on and after the expiration of 60
days after the Closing Date
or such later date as may be agreed to by the Agent, all such Dominion Accounts
required by this Section 8.2.5 shall be with Bank of America. If any Borrower or
Subsidiary receives cash or Payment Items with respect to any Collateral, it shall hold same
in trust for the Agent and promptly (not later than the next Business Day) deposit same into
a Dominion Account.
8.3. Administration of Inventory.
8.3.1. Records and Reports of Inventory. Each Borrower shall keep accurate and
complete records of its Inventory and shall submit to the Agent inventory reports in form
reasonably satisfactory to the Agent (including a listing of the locations of the Borrowers’
Inventory), concurrently with submission of each of the financial statements delivered to
the Agent pursuant to Section 10.1.2(b) as of the last day of the preceding calendar
month.
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8.3.2. Maintenance. The Borrowers shall use, store, and maintain all Inventory
with reasonable care and caution, in accordance with applicable standards of any insurance
and in conformity with all Applicable Law, and shall make current rent payments (within
applicable grace periods provided for in leases) at all locations where any Collateral is
located.
8.4. Administration of Equipment.
8.4.1. Records and Schedules of Equipment. Each Borrower shall keep accurate
and complete records of its Equipment, including kind, quality, quantity, cost,
acquisitions, and dispositions thereof, and shall submit to the Agent, on such periodic
basis as the Agent may request, a current schedule thereof, in form satisfactory to the
Agent.
8.4.2. Condition of Equipment. Each Borrower shall keep its material Equipment
that is necessary for the operation of its business in good operating condition and repair,
and make all necessary replacements and repairs so that the value and operating efficiency
of the Equipment is preserved at all times, reasonable wear and tear excepted. No Borrower
shall permit any Equipment to become affixed to real Property unless any landlord or
mortgagee delivers a Lien Waiver or similar instrument.
8.5. Administration of Deposit Accounts. Schedule 8.5 sets forth all Deposit
Accounts maintained by the Borrowers. Each Borrower shall take all actions necessary to establish
the Agent’s control of each such Deposit Account (other than an account exclusively used for
payroll, payroll taxes, or employee benefits, or an account containing not more that $10,000 at any
time). Each Borrower shall be the sole account holder of each Deposit Account and shall not allow
any other Person (other than the Agent) to have control over a Deposit Account or any Property
deposited therein. Each Borrower shall promptly notify the Agent of any opening or closing of a
Deposit Account.
8.6. General Provisions.
8.6.1. Location of Equipment. All of the Borrowers’ Equipment, other than de
minimus amounts of Equipment as may be in the possession of employees and agents of the
Borrowers, shall at all times be kept by the Borrowers at the business locations set forth
in Schedule 8.6.1 or at any business location located in the United States and
identified in writing to the Agent pursuant to Section 10.1.2(d).
8.6.2. Insurance of Collateral; Condemnation Proceeds.
(a) Each Borrower shall maintain insurance with respect to the Collateral,
covering casualty, hazard, public liability, theft, malicious mischief, and such
other risks, in such amounts, with such endorsements, and with such insurers (rated
A+ or better by Best Rating Guide) as are reasonably satisfactory to the Agent. All
proceeds under each policy shall be payable to the Agent. From time to time upon
request, the Borrowers shall deliver the originals or certified copies of its
insurance policies to the Agent. Unless the Agent shall agree otherwise, each
policy shall include satisfactory endorsements (i) showing the Agent as loss payee
or additional insured, as appropriate, (ii) requiring 30 days prior written notice
to the Agent in the event of cancellation of the policy for any reason whatsoever,
and (iii) specifying that the interest of the Agent shall not be impaired or
invalidated by any act or neglect of any Borrower or the owner of the Property, nor
by the occupation of the premises for purposes more hazardous than are permitted by
the policy. If any Borrower fails to provide and pay for such insurance, the Agent
may, at its option, but shall not be required to, procure the insurance and charge
the Borrowers
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therefor. Each Borrower agrees to deliver to the Agent, promptly as
rendered, copies of all reports made to insurance companies. While no Event of
Default exists, the Borrowers may settle, adjust, or compromise any insurance claim,
as long as the proceeds are delivered to the Agent. If an Event of Default exists,
only the Agent shall be authorized to settle, adjust, and compromise such claims.
(b) During the existence of an Event of Default, any proceeds of insurance
(other than proceeds from workers’ compensation or D&O insurance) and any awards
arising from condemnation of any Collateral shall be paid to the Agent and applied
to payment of the Obligations in accordance with the provisions of Section
5.6.1. Proceeds from any business interruption insurance may be used by the
Borrowers in the Ordinary Course of Business.
8.6.3. Protection of Collateral. All expenses of protecting, storing,
warehousing, insuring, handling, maintaining, and shipping any Collateral, all Taxes payable
with respect to any Collateral (including any sale thereof), and all other payments required
to be made by the Agent to any Person to realize upon any Collateral, shall be borne and
paid by the Borrowers. The Agent shall not be liable or responsible in any way for the
safekeeping of any Collateral, for any loss or damage thereto (except for reasonable care in
its custody while Collateral is in the Agent’s actual possession), for any diminution in the
value thereof, or for any act or default of any warehouseman, carrier, forwarding agency, or
other Person whatsoever, but the same shall be at the Borrowers’ sole risk.
8.6.4. Defense of Title to Collateral. Each Borrower shall at all times defend
its title to Collateral and the Agent’s Liens therein against all Persons, claims, and
demands whatsoever, except Permitted Liens.
8.7. Power of Attorney. Each Borrower hereby irrevocably constitutes and appoints the
Agent (and all Persons designated by the Agent) as such Borrower’s true and lawful attorney (and
agent-in-fact) for the purposes provided in this Section. The Agent, or the Agent’s designee, may,
without notice and in either its or a Borrower’s name, but at the cost and expense of the
Borrowers:
(a) endorse a Borrower’s name on any Payment Item or other proceeds of Collateral
(including proceeds of insurance) that come into the Agent’s possession or control; and
(b) during an Event of Default, (i) notify any Account Debtors of the assignment of
their Accounts, demand, and enforce payment of Accounts, by legal proceedings or otherwise,
and generally exercise any rights and remedies with respect to Accounts, (ii) settle,
adjust, modify, compromise, discharge, or release any Accounts or other Collateral, or any
legal proceedings brought to collect Accounts or Collateral, (iii) sell or assign any
Accounts and other Collateral upon such terms, for such amounts and at such times as the
Agent deems advisable, (iv) collect, liquidate and receive balances in Deposit Accounts or
investment accounts, and take control, in any manner, of proceeds of Collateral, (v)
prepare, file, and sign a Borrower’s name to a proof of claim or other document in a
bankruptcy of an Account Debtor, or to any notice, assignment, or satisfaction of Lien or
similar document, (vi) receive, open, and dispose of mail addressed to a Borrower, and
notify postal authorities to change the address for delivery thereof to such address as the
Agent may designate, (vii) endorse any Chattel Paper, Document, Instrument, invoice, freight
xxxx, xxxx of lading, or similar document or agreement relating to any Accounts, Inventory,
or other Collateral, (viii) use a Borrower’s stationery and sign its name to verifications
of Accounts and notices to Account Debtors, (ix) use the information recorded on or
contained in any data processing equipment and computer hardware and software relating to
any
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Collateral, (x) make and adjust claims under policies of insurance, (xi) take any action
as may be necessary or appropriate to obtain payment under any letter of credit or banker’s
acceptance for which a Borrower is a beneficiary, and (xii) take all other actions as the
Agent deems appropriate to fulfill any Borrower’s obligations under the Loan Documents.
SECTION 9. REPRESENTATIONS AND WARRANTIES
9.1. General Representations and Warranties. To induce the Agent and the Lenders to
enter into this Agreement and to make available the Revolving Commitments, Revolving Loans, and
Letters of Credit, each Borrower represents and warrants that:
9.1.1. Organization and Qualification. Each Borrower is duly organized,
validly existing, and in good standing under the laws of the jurisdiction of its
organization. Each Borrower is duly qualified, authorized to do business, and in good
standing as a foreign corporation in each jurisdiction where failure to be so qualified
could reasonably be expected to have a Material Adverse Effect.
9.1.2. Power and Authority. Each Obligor is duly authorized to execute,
deliver, and perform its Loan Documents. The execution, delivery, and performance of the
Loan Documents have been duly authorized by all necessary action, and do not (a) require any
consent or approval of any holders of Equity Interests of any Obligor, other than those
already obtained, (b) contravene the Organic Documents of any Obligor, (c) violate or cause
a default under any Applicable Law or Material Contract, or (d) result in or require the
imposition of any Lien (other than Permitted Liens) on any Property of any Obligor.
9.1.3. Enforceability. Each Loan Document is a legal, valid, and binding
obligation of each Obligor party thereto, enforceable in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors’ rights generally and by equitable principles.
9.1.4. Capital Structure. Schedule 9.1.4 shows, for each Borrower and
Subsidiary (a) its name, (b) its jurisdiction of organization, (c) as of the Closing Date,
with respect to each Subsidiary, whether it is a Restricted Subsidiary or an Unrestricted
Subsidiary, its authorized and issued Equity Interests, and the holders of its Equity
Interests. Each Borrower has good title to its
Equity Interests in its Subsidiaries, free of any Lien other than the Agent’s Liens,
and all such Equity Interests are duly issued, fully paid, and non-assessable.
9.1.5. Corporate Names; Locations. During the five years preceding the Closing
Date, except as shown on Schedule 9.1.5A, no Borrower has been known as or used any
corporate, fictitious, or trade names, has been the surviving corporation of a merger or
combination, or has acquired any substantial part of the assets of any Person. The chief
executive offices and other places of business of the Borrowers as of the Closing Date are
shown on Schedule 8.6.1. Except as shown on Schedule 9.1.5B, during the
five years preceding the Closing Date, no Borrower has had any other office or place of
business.
9.1.6. Title to Properties; Priority of Liens. Amkor has indefeasible title to
the Owned Real Estate and each Borrower has good title (or valid interests in) all of its
Property, including all Property reflected in any financial statements delivered to the
Agent or the Lenders, in each case free of Liens except Permitted Liens. Each Borrower has
paid and discharged all lawful claims that, if unpaid, could become a Lien on its
Properties, other than Permitted Liens or as are being Properly Contested. The Agent’s
Liens in the Collateral, excluding any Lien on Collateral
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(a) for which a certificate of
title is issued and the Agent is not in possession of such certificate of title and listed
as first lienholder thereon or (b) which constitutes a Commercial Tort Claim described in
the parenthetical clause of Section 7.4.1, are duly perfected, first priority Liens,
subject only to Permitted Liens that are expressly allowed to have priority over the Agent’s
Liens.
9.1.7. Accounts. The Agent may rely, in determining which Accounts are
Eligible Accounts and Eligible Foreign Accounts, on all statements and representations made
by the Borrowers with respect thereto. The Borrowers warrant, with respect to each Account
at the time it is shown as an Eligible Account or an Eligible Foreign Account in a Borrowing
Base Certificate, that:
(a) it is genuine and in all respects what it purports to be, and is not
evidenced by a judgment;
(b) it arises out of a completed, bona fide sale and delivery of goods or
rendition of services in the Ordinary Course of Business, and substantially in
accordance with any purchase order, contract, or other document relating thereto;
(c) it is for a sum certain, maturing as stated in the invoice covering such
sale or rendition of services, a copy of which has been furnished or is available to
the Agent on request;
(d) it is not subject to any offset, Lien (other than the Agent’s Lien),
deduction, defense, dispute, counterclaim, or other adverse condition except as
arising in the Ordinary Course of Business and disclosed to the Agent, and it is
absolutely owing by the Account Debtor, without contingency in any respect;
(e) no purchase order, agreement, document, or Applicable Law restricts
assignment of the Account to the Agent (regardless of whether, under the UCC, the
restriction is ineffective);
(f) no extension, compromise, settlement, modification, credit, deduction, or
return has been authorized with respect to the Account, except discounts or
allowances
granted in the Ordinary Course of Business for prompt payment that are
reflected on the face of the invoice related thereto and in the reports submitted to
the Agent hereunder; and
(g) to the best of the Borrowers’ knowledge, (i) there are no facts or
circumstances that are reasonably likely to impair the enforceability or
collectibility of such Account and (ii) the Account Debtor had the capacity to
contract when the Account arose, continues to meet the applicable Borrower’s
customary credit standards, is Solvent, is not contemplating or subject to an
Insolvency Proceeding, and has not failed or suspended or ceased doing business.
9.1.8. Financial Statements. The consolidated and consolidating balance
sheets, and related statements of income, cash flow, and shareholder’s equity, as
applicable, of the Borrowers that have been and are from time to time hereafter delivered to
the Agent and the Lenders, are prepared in accordance with GAAP, and fairly present in all
material respects the financial positions and results of operations of the Borrowers at the
dates and for the periods indicated. Since December 31, 2008, there has been no change in
the condition, financial or otherwise, of any Borrower that could reasonably be expected to
have a Material Adverse Effect. No financial
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statement delivered to the Agent or the
Lenders at any time contains any untrue statement of a material fact, nor fails to disclose
any material fact necessary to make such financial statement not materially misleading.
Each Borrower is Solvent.
9.1.9. Surety Obligations. No Borrower is obligated as surety or indemnitor
under any bond or other contract that assures payment or performance of any obligation of
any Person, except as permitted hereunder.
9.1.10. Taxes. Each Borrower has filed all federal, state, and local tax
returns and other reports that it is required by law to file, and has paid, or made
provision for the payment of, all Taxes upon it, its income, and its Properties that are due
and payable, except to the extent being Properly Contested or where the failure to do so
could not reasonably be expected to result in any liability in excess of $10,000,000. The
provision for Taxes on the books of each Borrower is adequate for all years not closed by
applicable statutes, and for its current Fiscal Year.
9.1.11. Brokers. There are no brokerage commissions, finder’s fees, or
investment banking fees payable in connection with any transactions contemplated by the Loan
Documents.
9.1.12. Intellectual Property. Each Borrower owns or has the lawful right to
use all Intellectual Property reasonably necessary for the conduct of its business, without
conflict with any rights of others except for any such conflict that could not reasonably be
expected to have a Material Adverse Effect. As of the Closing Date, (a) except as set forth
in Schedule 9.1.17, there is no pending or threatened (in writing) Intellectual
Property Claim with respect to any Borrower or any of their Intellectual Property, (b)
except as disclosed on Schedule 9.1.12, no Borrower pays or owes any Royalty or
other compensation to any Person with respect to any Intellectual Property, and (c) all
Intellectual Property registered in the United States owned, used, or licensed by any
Borrower is shown on Schedule 9.1.12.
9.1.13. Governmental Approvals. Each Borrower has, and is in compliance with,
and is in good standing with respect to, all Governmental Approvals necessary to conduct its
business and to own, lease, and operate its Properties, in each case in all material
respects. All necessary import, export, or other licenses, permits, or certificates for the
import or handling of any goods
or other Collateral have been procured and are in effect, and the Borrowers have
complied with all foreign and domestic laws with respect to the shipment and importation of
any goods or Collateral, except, in each case, where such failure or noncompliance could not
reasonably be expected to have a Material Adverse Effect.
9.1.14. Compliance with Laws. Each Borrower has duly complied, and its
Properties and business operations are in compliance, in all material respects with all
Applicable Law, except where noncompliance could not reasonably be expected to have a
Material Adverse Effect. There have been no material citations, notices, or orders of
noncompliance issued to any Borrower under any Applicable Law. To each Borrower’s
knowledge, no Inventory has been produced in violation of the FLSA.
9.1.15. Compliance with Environmental Laws. Except as disclosed on
Schedule 9.1.15, no Borrower’s operations, Real Estate, or other Properties are
subject to any federal, state, or local investigation to determine whether any remedial
action is needed to address any environmental pollution, hazardous material, or
environmental clean-up. No Borrower has received any Environmental Notice. No Borrower has
any contingent liability with respect to any Environmental Release, environmental pollution,
or hazardous material on any Real Estate now or previously owned, leased, or operated by it.
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9.1.16. Burdensome Contracts. No Borrower is a party or subject to any
contract, agreement, or charter restriction that could reasonably be expected to have a
Material Adverse Effect. As of the Closing Date, no Borrower is party or subject to any
Restrictive Agreement, except as shown on Schedule 9.1.16, none of which prohibit
the execution or delivery of any Loan Documents by an Obligor nor the performance by an
Obligor of any obligations thereunder.
9.1.17. Litigation. Except as shown on Schedule 9.1.17, there are no
proceedings or investigations pending or, to any Borrower’s knowledge, threatened against
any Borrower, or any of their businesses, operations, Properties, prospects, or conditions,
that (a) relate to any Loan Documents or transactions contemplated thereby, or (b) as of the
Closing Date, could reasonably be expected to have a Material Adverse Effect if determined
adversely to any Borrower. No Borrower is in default with respect to any order, injunction,
or judgment of any Governmental Authority.
9.1.18. No Defaults. No event or circumstance has occurred or exists that
constitutes a Default or Event of Default. No Borrower is in default, and no event or
circumstance has occurred or exists that with the passage of time or giving of notice would
constitute a default, under any Material Contract or in the payment of principal or interest
with respect to any Borrowed Money. Except as could not reasonably be expected to result in
a Material Adverse Effect, there is no basis upon which any party (other than a Borrower)
could terminate a Material Contract prior to its scheduled termination date.
9.1.19. ERISA. Each Borrower is in full compliance with the requirements of
all Applicable Law, including ERISA, relating to each Multiemployer Plan. No fact or
situation exists that could reasonably be expected to result in a Material Adverse Effect in
connection with any Multiemployer Plan. No Borrower has any withdrawal liability in
connection with a Multiemployer Plan. As of the Closing Date, no Borrower has any liability
with respect to the Foreign Plans in excess of the amount specified in Amkor’s financial
statements dated December 31, 2008 delivered to the Lenders, plus any additional
amount accrued in the Ordinary Course of
Business since such date and additional amounts resulting from changes in currency
exchange rates.
9.1.20. Trade Relations. There exists no actual or threatened termination or
limitation of any business relationship between any Borrower and any customer or supplier,
or any group of customers or suppliers, which individually or in the aggregate could
reasonably be expected to result in a Material Adverse Effect. There exists no condition or
circumstance that could reasonably be expected to materially impair the ability of any
Borrower to conduct its business at any time hereafter in substantially the manner as
conducted on the Closing Date.
9.1.21. Labor Relations. Except as described on Schedule 9.1.21, as of
the Closing Date, no Borrower is party to or bound by any collective bargaining agreement.
There are no material grievances, disputes, or controversies with any union or other
organization of any Borrower’s employees, or, to any Borrower’s knowledge, any asserted or
threatened strikes, work stoppages, or demands for collective bargaining.
9.1.22. Reserved.
9.1.23. Not a Regulated Entity. No Obligor is (a) an “investment company” or a
“person directly or indirectly controlled by or acting on behalf of an investment company”
within the meaning of the Investment Company Act of 1940, (b) a “holding company,” a
“subsidiary company” of a “holding company,” or an “affiliate” of either, within the meaning
of the Public
65
Utility Holding Company Act of 1935, or (c) subject to regulation under the
Federal Power Act, the Interstate Commerce Act, any public utilities code or any other
Applicable Law regarding its authority to incur Indebtedness.
9.1.24. Margin Stock. No Borrower is engaged, principally or as one of its
important activities, in the business of extending credit for the purpose of purchasing or
carrying any Margin Stock. No Revolving Loan proceeds or Letters of Credit will be used by
the Borrowers to purchase or carry, or to reduce or refinance any Indebtedness incurred to
purchase or carry, any Margin Stock or for any related purpose governed by Regulations T, U,
or X of the Board of Governors.
9.1.25. Plan Assets. No Borrower is an entity deemed to hold “plan assets”
within the meaning of 29 C.F.R. §2510.3-101 of any “employee benefit plan” (as defined in
Section 3(3) of ERISA) that is subject to Title I of ERISA or any “plan” (within the meaning
of Section 4975 of the Internal Revenue Code), and neither the execution of this Agreement
nor the funding of any Revolving Loans gives rise to a prohibited transaction within the
meaning of Section 406 of ERISA or Section 4975 of the Internal Revenue Code.
9.2. Complete Disclosure. No Loan Document contains any untrue statement of a
material fact, nor when viewed together with Amkor’s periodic reports filed under the Exchange Act
and the rules and regulations promulgated thereunder fails to disclose any material fact necessary
to make the statements contained therein not materially misleading. There is no fact or
circumstance that any Obligor has failed to disclose to the Agent in writing or is included in its
periodic reports filed under the Exchange Act and the rules and regulations promulgated thereunder
that could reasonably be expected to have a Material Adverse Effect.
SECTION 10. COVENANTS AND CONTINUING AGREEMENTS
10.1. Affirmative Covenants. For so long as any Revolving Commitments or Obligations
are outstanding, each Borrower shall, and shall cause each other Obligor to keep the following
covenants.
10.1.1. Inspections.
(a) Each Borrower shall, and shall cause each other Obligor to, permit the
Agent, at least once per twelve month period if no Revolving Loans are outstanding
and at least two times per twelve month period if Revolving Loans are outstanding
and at such other times, from time to time, as the Agent may determine in its
discretion, subject to (except when a Default or Event of Default exists) reasonable
notice and normal business hours, to visit and inspect the Properties of any
Borrower or Obligor, inspect, audit, and make extracts from any Borrower’s or
Subsidiary’s books and records, and discuss with its officers, employees, agents,
advisors, and independent accountants such Borrower’s or Obligor’s business,
financial condition, assets, prospects, and results of operations. The Lenders may
participate in any such visit or inspection, at their own expense. Neither the
Agent nor any Lender shall have any duty to any Borrower to make any inspection, nor
to share any results of any inspection or report with any Borrower.
(b) Each Borrower shall, and shall cause each Obligor to, reimburse the Agent
for all charges, costs, and expenses of the Agent in connection with examinations of
any Obligor’s books and records or any other financial or Collateral matters as the
Agent deems appropriate. Subject to the foregoing, the Borrowers shall pay the
Agent’s
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standard charges ($850 per day as of the Closing Date) for each day that an
employee of the Agent or its Affiliates is engaged in any examination activities.
10.1.2. Financial and Other Information. Each Borrower shall, and shall cause
each Obligor to, keep adequate records and books of account with respect to its business
activities, in which proper entries are made in accordance with GAAP reflecting all
financial transactions, and furnish to the Agent and the Lenders:
(a) as soon as available, and in any event upon the earlier of 120 days after
the end of each Fiscal Year or the filing of Amkor’s annual report on Form 10-K,
balance sheets as of the end of such Fiscal Year and the related statements of
income, cash flow, and shareholders’ equity for such Fiscal Year, on both a
consolidated basis for Amkor and its Subsidiaries and on a consolidating basis for
the Borrowers with respect to balance sheets and statements of income, which
consolidated statements shall be certified by a firm of independent certified public
accountants of recognized national standing selected by the Borrowers and acceptable
to the Agent, and shall set forth in comparative form corresponding figures for the
preceding Fiscal Year;
(b) as soon as available, and in any event within the earlier to occur of 60
days after the last day of each Fiscal Quarter or the filing of Amkor’s quarterly
report on Form 10-Q, unaudited balance sheets as of the end of such Fiscal Quarter
and the related statements of income for such Fiscal Quarter and for the portion of
the Fiscal Year then elapsed, on a consolidated basis and consolidating basis with
respect to balance sheets and statements of income for the Borrowers and cash flow
as of the end of such Fiscal Quarter on a consolidated basis, setting forth in
comparative form corresponding figures for the preceding Fiscal Year and certified
by the principal financial officer of the
Borrower Agent as prepared in accordance with GAAP and fairly presenting the
financial position and results of operations for such Fiscal Quarter, subject only
to changes from audit and year-end adjustments and except that such statements need
not contain notes, provided, that, if requested by the Agent, the Borrowers
will provide such financial statements for at such other times and for such other
periods as the Agent may reasonably request;
(c) concurrently with delivery of financial statements under clause (a)
and clause (b) preceding, or more frequently if requested by the Agent while
a Default or Event of Default exists, a Compliance Certificate executed by the chief
financial officer of the Borrower Agent or such other officer of the Borrower Agent
as may be acceptable to the Agent;
(d) concurrently with delivery of financial statements under clause (a)
and clause (b) preceding, (i) a listing of each new business location of the
Borrowers and (ii) a listing of each registration by any Borrower of any patent,
trademark, or copyright with the United States Patent and Trademark Office or the
United States Copyright Office, as applicable, together with all information
required by the Agent to perfect the Agent’s Liens in such Intellectual Property;
(e) not later than 30 days prior to the end of each Fiscal Year, projections of
the Borrowers’ consolidated balance sheets, results of operations, cash flow, and
Availability for the next three Fiscal Years, year by year, and for the next Fiscal
Year, on a fiscal quarter basis;
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(f) at the Agent’s request, a listing of each Borrower’s trade payables,
specifying the trade creditor and balance due, and a detailed trade payable aging,
all in form satisfactory to the Agent;
(g) promptly after the sending or filing thereof, (i) copies of any proxy
statements, financial statements, or reports that any Borrower has made generally
available to its shareholders, (ii) copies of any regular, periodic, and special
reports or registration statements or prospectuses that any Borrower files with the
Securities and Exchange Commission or any other Governmental Authority, or any
securities exchange; and (iii) copies of any press releases or other statements made
available by a Borrower to the public concerning material changes to or developments
in the business of such Borrower; and
(h) promptly upon the request of the Agent, copies of any annual report filed
in connection with a Plan, and such other reports and information (financial or
otherwise) as may be requested by the Agent in connection with any Collateral or any
Obligor’s financial condition or business.
10.1.3. Notices. Each Borrower shall notify the Agent and the Lenders in
writing, promptly after a Borrower’s obtaining knowledge thereof, of any of the following
that affects any Obligor: (a) the threat or commencement of any proceeding or investigation,
whether or not covered by insurance, if an adverse determination could reasonably be
expected to have a Material Adverse Effect; (b) any pending or threatened labor dispute,
strike, or walkout, or the expiration of any material labor contract to the extent any such
dispute, strike, walkout, or expiration could reasonably be expected to cause a Material
Adverse Effect; (c) any material
breach of, event of default under, or termination prior to its scheduled termination
date of a Material Contract; (d) the existence of any Default or Event of Default; (e) any
judgment in an amount exceeding $1,000,000; (f) the assertion of any Intellectual Property
Claim, if an adverse resolution could reasonably be expected to have a Material Adverse
Effect; (g) any violation or asserted violation of any Applicable Law (including ERISA,
OSHA, FLSA, or any Environmental Laws), if an adverse resolution could reasonably be
expected to have a Material Adverse Effect; (h) any Environmental Release by an Obligor or
on any Property owned, leased, or occupied by an Obligor; or receipt of any Environmental
Notice; (i) the discharge of or any withdrawal or resignation by the Borrowers’ independent
accountants; or (j) any opening of a new office or place of business.
10.1.4. Reserved.
10.1.5. Compliance with Laws. Each Borrower shall, and shall cause each
Obligor to, comply with all material Applicable Laws, including ERISA, Environmental Laws,
FLSA, OSHA, Anti-Terrorism Laws, and laws regarding collection and payment of Taxes, and
maintain all Governmental Approvals necessary to the ownership of its Properties or conduct
of its business, unless, in each case, failure to comply (other than failure to comply with
Anti-Terrorism Laws) or maintain compliance could not reasonably be expected to have a
Material Adverse Effect. Without limiting the generality of the foregoing, if any
Environmental Release occurs at or on any Properties of any Borrower, it shall act promptly
and diligently to investigate and report to the Agent and all appropriate Governmental
Authorities the extent of, and to make appropriate remedial action to eliminate, such
Environmental Release, whether or not directed to do so by any Governmental Authority.
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10.1.6. Taxes. Each Borrower shall pay and discharge all material Taxes prior
to the date on which they become delinquent or penalties attach, unless such Taxes are being
Properly Contested.
10.1.7. Insurance. Each Borrower shall, in addition to the insurance required
hereunder with respect to Collateral, maintain insurance with insurers satisfactory to the
Agent with respect to the Properties and business of the Borrowers of such type, in such
amounts, and with such coverages and deductibles as are customary for companies similarly
situated.
10.1.8. Licenses. Each Borrower shall (a) keep each material License affecting
any Collateral (including the manufacture, distribution, or disposition of Inventory) or any
other material Property of the Borrowers in full force and effect, (b) pay all Royalties
when due, and (c) notify the Agent of any default or breach asserted by any Person to have
occurred under any material License affecting any Collateral.
10.1.9. Future Subsidiaries. Each Borrower shall promptly notify the Agent
upon any Person becoming a Subsidiary. Excluding the Excluded Domestic Subsidiaries, each
Domestic Subsidiary formed or acquired after the Closing Date which at any time has assets
in excess of $10,000, shall guarantee the Obligations in a manner satisfactory to the Agent,
and execute and deliver such documents, instruments, and agreements and take such other
actions as the Agent shall require to evidence and perfect a Lien in favor of the Agent (for
the benefit of the Secured Parties) on all assets of such Person, including delivery of such
legal opinions, in form and substance satisfactory to the Agent, as it shall deem
appropriate.
10.1.10. Designation of Restricted and Unrestricted Subsidiaries. The board of
directors of Amkor may designate any Restricted Subsidiary to be an Unrestricted Subsidiary
so long as such designation would not cause a Default or Event of Default hereunder;
provided that Amkor delivers notice of any such designation to the Agent at least
five days prior to the effective date of such designation. If a Restricted Subsidiary is
designated as an Unrestricted Subsidiary, all outstanding Investments owned by Amkor and its
Restricted Subsidiaries in the Subsidiary so designated will be deemed to be an Investment
made as of the time of such designation and will reduce the amount available for Restricted
Payments under Section 10.2.2 or Permitted Investments, as applicable. All such
outstanding Investments will be valued at their fair market value at the time of such
designation. That designation will only be permitted if such Restricted Payment would be
permitted at that time and if such Restricted Subsidiary otherwise meets the definition of
an Unrestricted Subsidiary. The board of directors of Amkor may redesignate any
Unrestricted Subsidiary to be a Restricted Subsidiary if the redesignation would not cause a
Default or Event of Default.
10.2. Negative Covenants. For so long as any Revolving Commitments or Obligations are
outstanding, each Borrower shall, and shall cause each Subsidiary keep the following covenants.
10.2.1. Stay, Extension and Usury Laws. Each Borrower covenants (to the extent
that it may lawfully do so) that it shall not, and that none of the other Obligors shall, at
any time insist upon, plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension, or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this Agreement or
any other Loan Document, and each Borrower hereby expressly waives all benefit or advantage
of any such law, and covenants that it shall not, by resort to any such law, hinder, delay,
or impede the execution of any power herein
granted to the Agent or the Lenders, but shall suffer and permit the execution of every
such power as though no such law has been enacted.
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10.2.2. Restricted Payments.
(a) Amkor will not, nor will it permit any of its Restricted Subsidiaries to,
directly or indirectly (w) declare or pay any dividend or make any other payment or
distribution on account of Amkor’s or any of its Restricted Subsidiaries’ Equity
Interests (including, without limitation, any payment in connection with any merger
or consolidation involving Amkor or any of its Restricted Subsidiaries) or to the
direct or indirect holders of Amkor’s or any of its Restricted Subsidiaries’ Equity
Interests in their capacity as such (other than dividends or distributions payable
in Equity Interests (other than Disqualified Stock) of Amkor or to Amkor or a
Restricted Subsidiary of Amkor), (x) purchase, redeem, or otherwise acquire or
retire for value (including, without limitation, in connection with any merger or
consolidation involving Amkor) any Equity Interests of Amkor or any direct or
indirect parent of Amkor or any Restricted Subsidiary of Amkor (other than any such
Equity Interests owned by Amkor or any Restricted Subsidiary of Amkor), (y) make any
payment on or with respect to, or purchase, redeem, defease, or otherwise acquire or
retire for value any Subordinated Debt, except a payment of interest or principal at
the Stated Maturity thereof, or (z) make any Restricted Investment (all such
payments and other actions set forth in clause (w) through clause
(z) preceding being collectively referred to as “Restricted Payments”),
unless, at the time of and after giving effect to such Restricted Payment:
(i) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(ii) Amkor would, at the time of such Restricted Payment and after
giving pro forma effect thereto as if such Restricted Payment had been made
at the beginning of the applicable four-quarter period, have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to Section
10.2.4;
(iii) such Restricted Payment, together with the aggregate amount of
all other Restricted Payments made by Amkor and its Restricted Subsidiaries
after May 8, 2003 (excluding Restricted Payments permitted by clause
(ii), clause (iii), clause (iv), clause (vii),
and clause (ix) of Section 10.2.2(b)), is less than the sum,
without duplication, of (A) 50.0% of the Consolidated Net Income of Amkor
for the period (taken as one period) from the beginning of the Fiscal
Quarter commencing on April 1, 2003 to the end of Amkor’s most recently
ended Fiscal Quarter for which internal financial statements are available
at the time of such Restricted Payment (or, if such Consolidated Net Income
for such period is a deficit, less 100% of such deficit),
plus (B) 100% of the aggregate net cash proceeds received by Amkor
since May 8, 2003 as a contribution to its common equity capital or from the
issue or sale of Equity Interests of Amkor (other than Disqualified Stock)
(other than Equity Interests (or Disqualified Stock or debt securities) sold
to a Subsidiary of Amkor), plus (C) to the extent that any
Restricted Investment that was made after May 8, 2003 is sold for cash or
otherwise liquidated or repaid for cash, the lesser of (y) the cash return
of capital with respect to such Restricted Investment (less the cost
of disposition, if any) and (z) the initial amount of such Restricted
Investment, plus (D) the amount by which (1) Indebtedness (other than Disqualified Stock) of Amkor or any
Restricted Subsidiary issued after May 8, 2003 is reduced on Amkor’s
consolidated balance sheet (if prepared in accordance with GAAP as of the
date of determination) and (2) Disqualified Stock of Amkor issued after May
8, 2003
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(held by any Person other than any Restricted Subsidiary) is reduced
(measured with reference to its redemption or repurchase price), in each
case, as a result of the conversion or exchange of any such Indebtedness or
Disqualified Stock into Equity Interests (other than Disqualified Stock) of
Amkor, less, in each case, any cash distributed by Amkor upon such
conversion or exchange, plus (E) to the extent that any Investment
in any Unrestricted Subsidiary that was made after May 8, 2003 is sold for
cash or otherwise liquidated, repaid for cash or such Unrestricted
Subsidiary is converted into a Restricted Subsidiary, the lesser of (y) an
amount equal to the sum of (1) the net reduction in Investments in
Unrestricted Subsidiaries resulting from dividends, repayments of loans or
advances, or other transfers of assets, in each case to Amkor or any
Restricted Subsidiary from Unrestricted Subsidiaries, and (2) the fair
market value of the net assets of an Unrestricted Subsidiary at the time
such Unrestricted Subsidiary is designated a Restricted Subsidiary and (z)
the remaining amount of the Investment in such Unrestricted Subsidiary which
has not been repaid or converted into cash or assets; and
(iv) Availability is not less than $40,000,000.
(b) Section 10.2.2(a) preceding will not prohibit (i) the payment of
any dividend within 60 days after the date of declaration thereof, if at the date of
declaration no Default or Event of Default has occurred and is continuing or would
be caused thereby and such payment would have complied with the provisions of this
Agreement, (ii) the making of any payment on or with respect to, or in connection
with, the redemption, repurchase, retirement, defeasance, or other acquisition of,
any Indebtedness of Amkor or any Restricted Subsidiary that is subordinated to the
Obligations or of any Equity Interests of Amkor or any Restricted Subsidiary in
exchange for, or out of the net cash proceeds of the substantially concurrent sale
(other than to a Subsidiary of Amkor) of, Equity Interests (other than Disqualified
Stock) of Amkor or any subordinated Indebtedness of Amkor; provided that the
amount of any such net cash proceeds that are utilized for any such redemption,
repurchase, retirement, defeasance, or other acquisition shall be excluded from
clause (a)(iii)(B) preceding, (iii) the making of any payment on or with
respect to, or in connection with, the defeasance, redemption, repurchase, or other
acquisition of Indebtedness of Amkor or any Restricted Subsidiary that is
subordinated to the Obligations with the net cash proceeds from the incurrence of
Permitted Refinancing Indebtedness, (iv) the payment of any dividend by a Restricted
Subsidiary of Amkor to the holders of its common capital stock on a pro rata basis,
(v) so long as no Default or Event of Default has occurred and is continuing or
would be caused thereby, the repurchase, redemption, or other acquisition or
retirement for value of any Equity Interests of Amkor or any Restricted Subsidiary
of Amkor held by any employee of Amkor or any Restricted Subsidiary pursuant to any
employee equity subscription agreement, stock ownership plan, or stock option
agreement in effect from time to time; provided that the aggregate price
paid for all such repurchased, redeemed, acquired, or retired Equity Interests shall
not exceed $2,000,000 in any twelve-month period and $10,000,000 in the aggregate
since May 8, 2003, (vi) the making of any payment on or with respect to, or
repurchase, redemption, defeasance, or other acquisition or retirement
for value of the Convertible Subordinated Notes in connection with (A) so long
as no Event of Default has occurred and is continuing or would be caused thereby, an
optional redemption of any Convertible Subordinated
Notes on or after the dates such
notes become redeemable or (B) the honoring by Amkor of any conversion request into
Equity Interests (other than Disqualified Stock) by a holder of any Convertible
Subordinated
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Notes or any future convertible notes of Amkor (including the payment
by Amkor of any cash in lieu of fractional shares) in accordance with their terms,
(vii) that portion of Investments the payment for which consists exclusively of
Equity Interests (other than Disqualified Stock) of Amkor, (viii) so long as no
Default or Event of Default has occurred and is continuing or would be caused
thereby, other Restricted Payments in an aggregate amount not to exceed $75,000,000
during the period beginning May 8, 2003 and continuing through and including the
Termination Date, (ix) the repurchase of Equity Interests of Amkor that may be
deemed to occur upon the exercise of stock options if such Equity Interests
represent a portion of the exercise price thereof, and (x) any payments to one or
more shareholders of Amkor in connection with settling shareholder obligations for
income taxes in respect of tax periods ending prior to the conversion of Amkor from
“S” corporation status to “C” corporation status.
(c) The amount of all Restricted Payments (other than cash) shall be the fair
market value on the date of the Restricted Payment of the asset(s) or securities
proposed to be transferred or issued by Amkor or such Restricted Subsidiary, as the
case may be, pursuant to the Restricted Payment. The fair market value of any
assets or securities that are required to be valued by this covenant with a fair
market value in excess of $1,000,000 but less than $5,000,000 shall be evidenced by
an Officers’ Certificate which shall be delivered to the Agent. The fair market
value of any assets or securities that are required to be valued by this covenant
with a fair market value in excess of $5,000,000 shall be determined by Amkor’s
board of directors whose resolution with respect thereto shall be delivered to the
Agent. Not later than the date of making any Restricted Payment, Amkor shall
deliver to the Agent an Officers’ Certificate stating that such Restricted Payment
is permitted and setting forth the basis upon which the calculations required by
this Section 10.2.2 were computed, together with a copy of any fairness
opinion or appraisal required by this Agreement.
10.2.3. Dividend and Other Payment Restrictions Affecting Subsidiaries. Amkor
shall not, and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly, create or permit to exist or become effective any encumbrance or restriction on
the ability of any Restricted Subsidiary to (a)(i) pay dividends or make any other
distributions to Amkor or any of its Restricted Subsidiaries (A) on such Restricted
Subsidiary’s Equity Interests or (B) with respect to any other interest or participation in,
or measured by, such Restricted Subsidiary’s profits or (ii) pay any indebtedness owed to
Amkor or any of its Restricted Subsidiaries, (b) make loans or advances to Amkor or any of
its Restricted Subsidiaries, or (c) transfer any of its properties or assets to Amkor or any
of its Restricted Subsidiaries, except for such encumbrances or restrictions existing under
or by reasons of (I) Existing Indebtedness as in effect on the date hereof and any
amendments, modifications, restatements, renewals, increases, supplements, refundings,
replacements, or refinancings thereof, provided that such amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements, or refinancings
are no more restrictive, taken as a whole, with respect to such dividend and other payment
restrictions than those contained in such Existing Indebtedness, as in effect on the date
hereof, (II) this Agreement, (III) applicable law, (IV) any instrument governing
Indebtedness or Equity Interests of a Person acquired by Amkor or any of its Restricted
Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection
with or in contemplation of such acquisition), which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than the Person,
or the property or assets of the Person, so acquired, provided that, in the case of
Indebtedness, such Indebtedness was permitted by the terms of this Agreement to be incurred,
(V) customary non-assignment provisions in leases, licenses, and other contracts entered
into in the ordinary course of business
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and consistent with past practices, (VI) purchase
money obligations or Capital Lease Obligations for property acquired in the ordinary course
of business that impose restrictions on the property so acquired of the nature described in
clause (c) preceding, (VII) any agreement for the sale or other disposition of a
Restricted Subsidiary that restricts dividends, distributions, loans, advances, or transfers
by such Restricted Subsidiary pending its sale or other disposition, (VIII) Permitted
Refinancing Indebtedness, provided that the restrictions contained in the agreements
governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole,
than those contained in the agreements governing the Indebtedness being refinanced, (IX)
agreements entered into with respect to Liens securing Indebtedness otherwise permitted to
be incurred pursuant to the provisions of Section 10.2.7 that limit the right of
Amkor or any of its Restricted Subsidiaries to dispose of the assets subject to such Lien,
(X) provisions with respect to the disposition or distribution of assets or property in
joint venture agreements and other similar agreements entered into in the ordinary course of
business, (XI) restrictions on cash or other deposits or net worth imposed by customers
under contracts entered into in the ordinary course of business, (XII) any Receivables
Program for any Subsidiary of Amkor which is not a Borrower, and (XIII) any restriction
imposed pursuant to contracts for the sale of assets with respect to the transfer of the
assets to be sold pursuant to such contract.
10.2.4. Incurrence of Indebtedness and Issuance of Preferred Stock.
(a) Amkor shall not, and shall not permit any of its Restricted Subsidiaries
to, directly or indirectly, create, incur, issue, assume, guarantee, or otherwise
become directly or indirectly liable, contingently or otherwise, with respect to
(collectively, “incur”) any Indebtedness (including Acquired Indebtedness), and
Amkor will not issue any Disqualified Stock and will not permit any of its
Restricted Subsidiaries to issue any shares of preferred stock; provided,
however, that Amkor and any Restricted Subsidiary that is a Subsidiary
Guarantor may incur Indebtedness (including Acquired Indebtedness), and Amkor may
issue Disqualified Stock, and any Restricted Subsidiary that is a Subsidiary
Guarantor may issue preferred stock, if the Consolidated Interest Expense Coverage
Ratio for Amkor’s most recently ended four full Fiscal Quarters for which internal
financial statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such Disqualified Stock or preferred stock is
issued would have been at least 2.0 to 1.0, determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom), as if the
additional Indebtedness had been incurred, or the Disqualified Stock or preferred
stock had been issued, as the case may be, at the beginning of such four-quarter
period.
(b) Section 10.2.4(a) preceding will not prohibit the incurrence of any
of the following items of Indebtedness (collectively, “Permitted Debt”):
(i) the incurrence by Amkor and its Restricted Subsidiaries of any
Permitted Bank Debt; provided that the aggregate principal amount of
all such Indebtedness at any one time outstanding shall not exceed
$100,000,000, plus 85.0% of the consolidated accounts receivable of
Amkor, plus 50.0% of the consolidated inventory of Amkor; provided, further,
that none of such Indebtedness (including specifically any Permitted Bank
Debt other than the Obligations) may be secured by any of the Collateral;
(ii) the incurrence by Amkor and its Subsidiaries of Existing
Indebtedness;
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(iii) the incurrence by the Obligors of the Obligations;
(iv) the incurrence by Amkor or any of its Restricted Subsidiaries of
(A) Indebtedness incurred for the purpose of financing all or any part of
the purchase price or cost of construction or improvement of property,
plant, or equipment used in the business of Amkor or any of its Restricted
Subsidiaries and (B) Capital Lease Obligations, in an aggregate amount at
any time outstanding, including all Permitted Refinancing Indebtedness
incurred to refund, refinance, or replace any Indebtedness incurred pursuant
to this clause (iv), not to exceed (1) 10.0% of Amkor’s Consolidated
Net Assets or (2) after termination of the Senior Notes (2013) Indenture,
the greater of $75,000,000 or 10.0% of Amkor’s Consolidated Net Assets;
(v) the incurrence by Amkor or any of its Restricted Subsidiaries of
Permitted Refinancing Indebtedness in exchange for, or the net proceeds of
which are used to refund, refinance, or replace, Indebtedness (other than
intercompany Indebtedness) that was permitted by this Agreement to be
incurred under Section 10.2.4(a) or clause (ii), clause
(v), clause (xiii), or clause (xiv) of this Section
10.2.4(b);
(vi) the incurrence by Amkor or any of its Restricted Subsidiaries of
intercompany Indebtedness between or among Amkor and any of its Restricted
Subsidiaries; provided, however, that (A) if Amkor or any
Subsidiary Guarantor is the obligor on such Indebtedness and such
Indebtedness is in favor of a Restricted Subsidiary other than a Wholly
Owned Restricted Subsidiary, such Indebtedness must be expressly
subordinated to the prior payment in full in cash of the Obligations and
(B)(I) any subsequent issuance or transfer of Equity Interests that results
in such Indebtedness being held by a Person other than Amkor or a Wholly
Owned Restricted Subsidiary thereof and (II) any sale or other transfer of
any such Indebtedness to a Person that is not either Amkor or a Wholly Owned
Restricted Subsidiary thereof, shall be deemed, in each case, to constitute
an incurrence of such Indebtedness by Amkor or such Restricted Subsidiary,
as the case may be, that was not permitted by this clause (vi);
(vii) the incurrence by Amkor or any of its Restricted Subsidiaries of
Hedging Obligations that are incurred for the purpose of fixing or hedging
interest rate, commodity, or currency risk in the ordinary course of
business for bona fide hedging purposes; provided that the notional
principal amount of any such Hedging Obligation with respect to interest
rates does not exceed the amount of Indebtedness or other liability to which
such Hedging Obligation relates;
(viii) the Guarantee by Amkor or any of the Subsidiary Guarantors or a
Restricted Subsidiary of Amkor that was permitted to be incurred by another
provision of this Section 10.2.4;
(ix) the incurrence by Amkor’s Unrestricted Subsidiaries of
Non-Recourse Debt; provided, however, that if any such
Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary,
such event shall be deemed to constitute an incurrence of Indebtedness by a
Restricted Subsidiary of Amkor that was not permitted by this clause
(ix);
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(x) the incurrence of Indebtedness solely in respect of performance,
surety, and similar bonds or completion or performance Guarantees, to the
extent that such incurrence does not result in the incurrence of any
obligation for the payment of borrowed money to others;
(xi) the incurrence of Indebtedness arising from the agreements of
Amkor or a Restricted Subsidiary of Amkor providing for indemnification,
adjustment of purchase price, or similar obligations, in each case, incurred
or assumed in connection with the disposition of any business, assets, or a
Subsidiary; provided, however, that (A) such Indebtedness is
not reflected as a liability on the balance sheet of Amkor or any Restricted
Subsidiary of Amkor and (B) the maximum assumable liability in respect of
all such Indebtedness shall at no time exceed the gross proceeds, including
non-cash proceeds (the fair market value of such non-cash proceeds being
measured at the time received and without giving effect to any subsequent
changes in value), actually received by Amkor and its Restricted
Subsidiaries in connection with such disposition;
(xii) the accrual of interest, accretion or amortization of original
issue discount, the payment of interest on any Indebtedness in the form of
additional Indebtedness with the same terms, and the payment of dividends on
Disqualified Stock in the form of additional shares of the same class of
Disqualified Stock; provided, in each such case, that the amount
thereof is included in Consolidated Interest Expense of Amkor as accrued;
(xiii) the incurrence of Indebtedness by Foreign Subsidiaries in an
amount not to exceed 10.0% of the Total Tangible Assets of the Foreign
Subsidiaries, taken as a whole; and
(xiv) the incurrence by Amkor or any of its Restricted Subsidiaries of
additional Indebtedness in an aggregate principal amount (or accreted value,
as applicable) at any time outstanding, including all Permitted Refinancing
Indebtedness incurred to refund, refinance, or replace any Indebtedness
incurred pursuant to this clause (xiv), not to exceed $50,000,000.
Notwithstanding any other provision of this Section 10.2.4(b), none of the
Permitted Debt, other than the Obligations, may at any time be secured by a Lien on
any or all of the Collateral.
(c) Indebtedness or preferred stock of any Person which is outstanding at the
time such Person becomes a Restricted Subsidiary of Amkor (including upon
designation of any Subsidiary or other Person as a Restricted Subsidiary) or is merged with
or into or consolidated with Amkor or a Restricted Subsidiary of Amkor shall be
deemed to have been incurred at the time such Person becomes such a Restricted
Subsidiary of Amkor or is merged with or into or consolidated with Amkor or a
Restricted Subsidiary of Amkor, as applicable.
(d) Amkor will not incur any Indebtedness (including Permitted Debt) that is
contractually subordinated in right of payment to any other Indebtedness of Amkor
unless such Indebtedness is also contractually subordinated in right of payment to
the Obligations on substantially identical terms; provided, however,
that no Indebtedness of Amkor shall be deemed to be contractually subordinated in
right of payment to any other
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Indebtedness of Amkor solely by virtue of any Liens,
Guarantees, maturity of payments, or structural seniority.
(e) For purposes of determining compliance with this Section 10.2.4, in
the event that an item of proposed Indebtedness meets the criteria of more than one
of the categories of Permitted Debt described in clause (b)(i) through
clause (b)(xiv) preceding, or is entitled to be incurred pursuant to
Section 10.2.4(a), Amkor shall, in its sole discretion, classify or
reclassify such item of Indebtedness (or any part thereof) in any manner that
complies with this Section 10.2.4 and such item of Indebtedness shall be
treated as having been incurred pursuant to only one of such clauses or pursuant to
Section 10.2.4(a). For purposes of determining any particular amount of
Indebtedness under this Section 10.2.4, Guarantees, Liens, or obligations in
support of letters of credit supporting Indebtedness shall not be included to the
extent such letters of credit are included in the amount of such Indebtedness. Any
increase in the amount of any Indebtedness solely by reason of currency fluctuations
shall not be considered an incurrence of Indebtedness for purposes of this covenant.
Accrual of interest and the payment of interest in the form of additional
Indebtedness shall not be deemed to be an incurrence of Indebtedness for purposes of
this Section 10.2.4.
10.2.5. Asset Sales.
(a) The Borrowers shall not, and shall not permit any of their Restricted
Subsidiaries to (i) sell, lease, convey, or otherwise dispose of any assets or
rights (including by way of a sale-and-leaseback) other than sales of inventory in
the Ordinary Course of Business, (ii) with respect to Amkor, sell Equity Interests
in any of its Subsidiaries, or (iii) with respect to Amkor’s Restricted
Subsidiaries, issue Equity Interests (each of the foregoing, an “Asset
Sale”), unless (y) Amkor (or the Restricted Subsidiary, as the case may be)
receives consideration at the time of such Asset Sale at least equal to the fair
market value (evidenced by a resolution of Amkor’s board of directors set forth in
an Officer’s Certificate delivered to the Agent) of the assets sold or otherwise
disposed of and (z) at least 75.0% of the consideration received therefor by Amkor
or such Restricted Subsidiary is in the form of cash or other Qualified Proceeds.
(b) Notwithstanding the foregoing, the following shall not be deemed to be
Asset Sales: (i) any single transaction or series of related transactions that (A)
involves assets having a fair market value of less than $2,000,000 or (B) results in
net proceeds to Amkor and its Restricted Subsidiaries of less than $2,000,000; (ii)
a transfer of assets between or among Amkor and any Restricted Subsidiary; (iii) an
issuance of Equity Interests by a Restricted Subsidiary to Amkor or to another
Wholly Owned Restricted Subsidiary; (iv) the sale, lease, conveyance, or other disposition of any
Receivable Program Assets by any Subsidiary of Amkor that is not a Borrower in
connection with a Receivables Program; (v) the sale, lease, conveyance, or other
disposition of any inventory or other current assets, excluding Accounts, by a
Borrower or any of its Restricted Subsidiaries in the Ordinary Course of Business;
(vi) the granting of a Permitted Lien or a Permitted Other Lien; (vii) the licensing
by a Borrower or any Restricted Subsidiary of intellectual property in the Ordinary
Course of Business or on commercially reasonable terms; (viii) the sale, lease,
conveyance, or other disposition of obsolete or worn out equipment or equipment no
longer useful in a Borrower’s business; and (ix) the making or liquidating of any
Restricted Payment or Permitted Investment that is permitted by Section
10.2.2.
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(c) Notwithstanding any other provision of this Agreement to the contrary, no
Borrower will enter into any Asset Sale or other sale, transfer, conveyance, or
disposition of any asset or other property, in each such case if such Asset Sale,
sale, transfer, conveyance, or disposition is of assets or other property which
constitutes Collateral; provided that the Borrowers may (i) sell Inventory
in the Ordinary Course of Business, (ii) sell, transfer, or convey property and
assets, including Collateral, among the Borrowers, (iii) if no Event of Default
exists, sell, transfer, convey, or dispose of Collateral consisting of Equipment and
Inventory to any Affiliate in an aggregate amount not in excess of $10,000,000
during the term of this Agreement, and (iv) as long as no Event of Default exists,
(A) make Permitted Investments and (B) grant non-exclusive licenses of Intellectual
Property to Amkor and its Restricted Subsidiaries, provided that the owner
of any such Intellectual Property which is the subject of any such license retains
ownership of such Intellectual Property and any such license granted is subject to
the Agent’s Liens.
10.2.6. Transactions with Affiliates.
(a) Subject to Section 10.2.5(c), Amkor will not, nor will it permit
any of its Restricted Subsidiaries to, make any payment to, or sell, lease,
transfer, or otherwise dispose of any of its properties or assets to, or purchase
any property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance, or Guarantee with, or for the
benefit of, any Affiliate (each, an “Affiliate Transaction”), unless (i)
such Affiliate Transaction (when viewed together with related Affiliate
Transactions, if any) is on terms that are no less favorable to Amkor or the
relevant Restricted Subsidiary than those that would have been obtained in a
comparable transaction by Amkor or such Restricted Subsidiary with an unrelated
Person and (ii) Amkor delivers to the Agent (A) with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving aggregate
consideration in excess of $10,000,000, a resolution of the board of directors of
Amkor set forth in an Officers’ Certificate certifying that such Affiliate
Transaction complies with this covenant and that such Affiliate Transaction has been
approved by a majority of the disinterested members of the board of directors (of
which there must be at least one) of Amkor and (B) with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving aggregate
consideration in excess of $25,000,000, an opinion as to the fairness to the Lenders
of such Affiliate Transaction from a financial point of view issued by an
accounting, appraisal, or investment banking firm of national standing.
(b) The following items shall not be deemed to be Affiliate Transactions and,
therefore, will not be subject to the provisions of Section 10.2.6:
(i) any employment agreement or arrangement entered into by Amkor or
any of its Restricted Subsidiaries or any employee benefit plan available to
employees of Amkor and its Subsidiaries generally, in each case in the
Ordinary Course of Business of Amkor or such Restricted Subsidiary;
(ii) subject to Section 10.2.5(c), Affiliate Transactions
between or among Amkor and/or its Restricted Subsidiaries;
(iii) payment of reasonable directors fees to Persons who are not
otherwise Affiliates of Amkor and indemnity provided on behalf of officers,
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directors, and employees of Amkor or any of its Restricted Subsidiaries as
determined in good faith by the board of directors of Amkor; and
(iv) any Restricted Payments that are permitted by Section
10.2.2.
(c) For purposes of this Section 10.2.6, any transaction or series of
related Affiliate Transactions between Amkor or any Restricted Subsidiary and an
Affiliate that is approved by a majority of the disinterested members of the board
of directors (of which there must be at least one to utilize this method of
approval) of Amkor and evidenced by a board resolution or for which a fairness
opinion has been issued shall be deemed to be on terms that are no less favorable to
Amkor or the relevant Restricted Subsidiary than those that would have been obtained
in a comparable transaction by Amkor or such Restricted Subsidiary with an unrelated
Person and thus shall be permitted under this Section 10.2.6, subject to the
limitations in Section 10.2.5(c).
10.2.7. Liens.
(a) Amkor will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, create, incur, assume, or suffer to exist any Lien of any
kind securing Indebtedness on any asset now owned or hereafter acquired, other than
Permitted Liens and Permitted Other Liens and Liens in favor of the Agent securing
the Obligations.
(b) The foregoing negative pledge shall not apply to any Margin Stock to the
extent such application would violate or require filings or other actions by any
Lender under Regulation U or any similar law.
10.2.8. Amendment of Subordination Provisions. Amkor will not amend, modify,
or alter the terms of the Convertible Senior Subordinated Notes Indentures, the Convertible
Subordinated Notes Indenture or any other Subordinated Debt in any way that will (a)
increase the rate of or change the time for payment of interest on any Subordinated Debt,
(b) increase the principal of, advance the final maturity date of or shorten the Weighted
Average Life to Maturity of any Subordinated Debt, (c) alter the redemption provisions or
the price or terms at which Amkor is required to offer to purchase any Subordinated Debt, or
(d) amend the subordination provisions of any Subordinated Debt.
10.2.9. Limitation on Issuances and Sales of Equity Interests in Wholly Owned
Subsidiaries. Amkor (a) shall not, and shall not permit any Wholly Owned Restricted
Subsidiaries of Amkor to, transfer, convey, sell, lease, or otherwise dispose of any Equity
Interests in any Wholly Owned Restricted Subsidiary of Amkor to any Person (other than Amkor
or a Wholly Owned Restricted Subsidiary of Amkor), unless (i) such transfer, conveyance,
sale, lease, or other disposition is of all the Equity Interests in such Wholly Owned
Restricted Subsidiary or immediately following such transfer, conveyance, sale, lease, or
other disposition, such Wholly Owned Restricted Subsidiary is a Restricted Subsidiary and
(ii) the cash Net Proceeds from such transfer, conveyance, sale, lease, or other disposition
are applied, at any time an Event of Default exists and upon notice by the Agent to the
Borrower Agent during a Triggered Activation Period, in accordance with Section 5.2,
and (b) shall not permit any Wholly Owned Restricted Subsidiary of Amkor to issue any of its
Equity Interests (other than, if necessary, shares of its capital stock constituting
directors’ qualifying shares) to any Person other than to Amkor or a Wholly Owned Restricted
Subsidiary of Amkor unless immediately following such issuance the Wholly Owned Restricted
Subsidiary is a Restricted Subsidiary.
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10.2.10. Limitation on Sale and Leaseback Transactions.
(a) Amkor shall not, and shall not permit any of its Subsidiaries to, enter
into any sale and leaseback transaction; provided that Amkor or any
Restricted Subsidiary may enter into a sale and leaseback transaction if (i) Amkor
or such Restricted Subsidiary, as applicable, could have incurred Indebtedness in an
amount equal to the Attributable Debt relating to such sale and leaseback
transaction (if the lease is in the nature of an operating lease, otherwise the
amount of Indebtedness) under the Consolidated Interest Expense Coverage Ratio test
in Section 10.2.4 (ii) the transfer of assets in that sale and leaseback
transaction is permitted by Section 10.2.5, and (iii) the property subject
to such sale and leaseback transaction is not Collateral.
(b) The restrictions in Section 10.2.10(a) shall not apply to any sale
and leaseback transaction if (i) the transaction is solely between Amkor and any
Restricted Subsidiary or between Restricted Subsidiaries and such transaction is
permitted under Section 10.2.6 or (ii) the sale and leaseback transaction is
consummated within 180 days after the purchase of the assets subject to such
transaction.
10.2.11. Merger and Consolidations.
(a) Amkor shall not, directly or indirectly, consolidate or merge with or into
another Person or sell, assign, transfer, convey, or otherwise dispose of all or
substantially all of its properties or assets, in one or more related transactions,
to another Person, unless in connection with any such merger (but excluding an sale,
assignment, transfer, conveyance, or other disposition) (i) Amkor is the surviving
corporation, (ii) immediately after such merger no Default or Event of Default
exists, and (iii) Amkor shall have delivered to the Agent an Officers’ Certificate
stating that such merger complies with the terms of this Agreement. In addition,
Amkor shall not, directly or indirectly, lease any of the Collateral, in one or more
related transactions, to any other Person.
(b) Amkor shall not permit, except in connection with the sale or other
disposition in accordance with this Agreement of all the assets or all the capital
stock of any Subsidiary Guarantor to a Person that is not (either before or after
giving effect to such transactions) a Subsidiary of Amkor, any Subsidiary Guarantor to
consolidate with or merge with or into (whether or not such Subsidiary Guarantor is
the surviving Person) another Person unless (i) the Person formed by or surviving
any such consolidation or merger (if other than a Subsidiary Guarantor or Amkor)
unconditionally assumes all the indebtedness, liabilities, and obligations of such
Subsidiary Guarantor, (ii) immediately after giving effect to such transaction no
Default or Event of Default shall have occurred which is continuing, and (iii) such
Subsidiary Guarantor is not a Borrower.
10.3. Fixed Charge Coverage Ratio. Maintain a Fixed Charge Coverage Ratio of at least
1.10 to 1.00, as of the last day of each calendar month occurring during the existence of a
Triggered Activation Period, determined on a consolidated basis for Borrower and Subsidiaries for
the preceding twelve completed calendar months.
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SECTION 11. EVENTS OF DEFAULT; REMEDIES ON DEFAULT
11.1. Events of Default. Each of the following shall be an “Event of Default”
hereunder, if the same shall occur for any reason whatsoever, whether voluntary or involuntary, by
operation of law or otherwise:
(a) any Borrower fails to pay any Obligations when due (whether at stated maturity, on
demand, upon acceleration, or otherwise);
(b) any representation, warranty, or other written statement of any Obligor made in
connection with any Loan Documents or transactions contemplated thereby is incorrect or
misleading in any material respect when given;
(c) any Borrower shall breach or fail to perform any covenant contained in Sections
7.4, 7.6, 8.1, 8.2.4, 8.2.5, 8.6.2,
10.1.1, 10.1.2, 10.2, or 10.3;
(d) any Obligor breaches or fails to perform any other covenant contained in any Loan
Documents, and such breach or failure is not cured within 30 days after a Senior Officer has
knowledge thereof or receives notice thereof from the Agent, whichever is sooner; provided
that such notice and opportunity to cure shall not apply if the breach or failure to perform
is not capable of being cured within such period or is a willful breach by an Obligor;
(e) any (i) Guarantor repudiates, revokes, or attempts to revoke its Guaranty, (ii)
Obligor denies or contests the validity or enforceability of any Loan Documents or
Obligations, or the perfection or priority of any Lien granted to the Agent, or (iii) Loan
Document ceases to be in full force or effect for any reason (other than a waiver or release
by the Agent and the Lenders);
(f) any event of default occurs under the Senior Notes Indentures, the Convertible
Senior Subordinated Notes Indentures, the Convertible Subordinated Notes Indenture, or any
document, instrument, or agreement to which any Borrower is a party evidencing, securing, or
relating to any other Indebtedness (other than the Obligations) in excess of $10,000,000, if
the maturity of or any payment with respect to such Indebtedness may be accelerated or
demanded due to such breach;
(g) any final judgment or order for the payment of money is entered against an Obligor
in an amount that exceeds, individually or cumulatively with all unsatisfied judgments or orders against all Obligors, $10,000,000 (net of any insurance coverage therefor
acknowledged in writing by the insurer), and such judgment or order remains undischarged for
a period of 30 days unless a stay of enforcement of such judgment or order is in effect, by
reason of a pending appeal or otherwise;
(h) Reserved;
(i) any Obligor is enjoined, restrained, or in any way prevented by any Governmental
Authority from conducting any material part of its business, any Obligor suffers the loss,
revocation, or termination of any material license, permit, lease, or agreement necessary to
its business, there is a cessation of any material part of an Obligor’s business for a
material period of time, any material Collateral or Property of an Obligor is taken or
impaired through condemnation, any Obligor agrees to or commences any liquidation,
dissolution, or winding up of its affairs, or any Obligor ceases to be Solvent;
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(j) any (i) Insolvency Proceeding is commenced by any Obligor, (ii) Insolvency
Proceeding is commenced against any Obligor and (A) such Obligor consents to the institution
of the proceeding against it, (B) the petition commencing the proceeding is not timely
controverted by such Obligor, (C) such petition is not dismissed within 30 days after its
filing, or (D) an order for relief is entered in the proceeding, (iii) a trustee (including
an interim trustee) is appointed to take possession of any substantial Property of or to
operate any of the business of any Obligor, or (iv) any Obligor makes an offer of
settlement, extension, or composition to its unsecured creditors generally;
(k) (i) a Reportable Event occurs that the Agent, in its reasonable discretion,
determines constitutes grounds for termination by the Pension Benefit Guaranty Corporation
of any Multiemployer Plan or appointment of a trustee for any Multiemployer Plan, (ii) any
Multiemployer Plan is terminated or any such trustee is requested or appointed, or (iii) any
Obligor is in “default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments
to a Multiemployer Plan resulting from any withdrawal therefrom;
(l) any Obligor or any of its Senior Officers (excluding specifically any person who
was a Senior Officer of an Obligor prior to the Closing Date but was not employed by any
Obligor at any time on or after the Closing Date) is convicted for (i) a felony committed in
the conduct of such Obligor’s business or (ii) any state or federal law (including the
Controlled Substances Act, the Money Laundering Control Act of 1986, and the Illegal
Exportation of War Materials Act) that could lead to forfeiture of any material Collateral
or could reasonably be expected to cause a Material Adverse Effect;
(m) any Senior Notes, Convertible Senior Subordinated Notes or Convertible Subordinated
Notes are not paid, repurchased, redeemed or otherwise retired on or before 90 days prior to
its respective final maturity date unless (i) the Borrowers have established a cash account
for such purpose pursuant to a Dominion Account at Bank of America or (ii) an additional
Reserve against the Borrowing Base has been established for such purpose, in any such case
in an amount equal to the amount required to pay such Indebtedness in full at such final
maturity date; or
(n) a Change of Control occurs.
11.2. Remedies upon Default. If an Event of Default described in Section
11.1(j) occurs with respect to any Borrower, then to the extent permitted by Applicable Law,
all Obligations shall become automatically due and payable and all Revolving Commitments shall
terminate, without any action by the Agent or notice of any kind. In addition, or if any other
Event of Default exists, the Agent may in its discretion (and shall upon written direction of the
Requisite Lenders) do any one or more of the following from time to time:
(a) declare any Obligations immediately due and payable, whereupon they shall be due
and payable without diligence, presentment, demand, protest, or notice of any kind, all of
which are hereby waived by the Borrowers to the fullest extent permitted by law;
(b) terminate, reduce, or condition any Revolving Commitment, or make any adjustment to
the Borrowing Base;
(c) require the Obligors to Cash Collateralize the LC Obligations, the Bank Product
Debt, and other the Obligations that are contingent or not yet due and payable, and, if the
Obligors fail promptly to deposit such Cash Collateral, the Lenders may (and shall upon the
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direction of the Requisite Lenders) advance the required Cash Collateral as Revolving Loans
(whether or not an Overadvance exists or is created thereby, or the conditions in
Section 6 are satisfied); and
(d) exercise any other rights or remedies afforded under any agreement, by law, at
equity, or otherwise, including the rights and remedies of a secured party under the UCC.
Such rights and remedies include the rights to (i) take possession of any Collateral, (ii)
require the Borrowers to assemble the Collateral, at the Borrowers’ expense, and make it
available to the Agent at a place designated by the Agent, (iii) enter any premises where
any Collateral is located and store Collateral on such premises until sold (and if the
premises are owned or leased by a Borrower, the Borrowers agree not to charge for such
storage), and (iv) sell or otherwise dispose of any Collateral in its then condition, or
after any further manufacturing or processing thereof, at public or private sale, with such
notice as may be required by Applicable Law, in lots or in bulk, at such locations, all as
the Agent, in its discretion, deems advisable. Each Borrower agrees that ten days notice of
any proposed sale or other disposition of Collateral by the Agent shall be reasonable. The
Agent shall have the right to conduct such sales on any Obligor’s premises, without charge,
and such sales may be adjourned from time to time in accordance with Applicable Law. The
Agent shall have the right to sell, lease, or otherwise dispose of any Collateral for cash,
credit, or any combination thereof, and the Agent may purchase any Collateral at public or,
if permitted by law, private sale and, in lieu of actual payment of the purchase price, may
set off the amount of such price against the Obligations.
11.3. License. The Agent is hereby granted an irrevocable, non-exclusive license or
other right to use, license, or sub-license (without payment of royalty or other compensation to
any Person) any or all Intellectual Property of the Borrowers, computer hardware and software,
trade secrets, brochures, customer lists, promotional and advertising materials, labels, packaging
materials, and other Property, in advertising for sale, marketing, selling, collecting, completing
manufacture of, or otherwise exercising any rights or remedies with respect to, any Collateral.
Each Borrower’s rights and interests under Intellectual Property shall inure to the Agent’s
benefit.
11.4. Setoff. The Agent, the Lenders, and their Affiliates are each authorized by the
Borrowers at any time during an Event of Default, without notice to the Borrowers or any other
Person, to set off and to appropriate and apply any deposits (general or special), funds, claims,
obligations, liabilities, or other Indebtedness at any time held or owing by the Agent, any Lender, or any such Affiliate to or
for the account of any Obligor against any Obligations, whether or not demand for payment of such
Obligation has been made, any Obligations have been declared due and payable, are then due, or are
contingent or unmatured, or the Collateral or any guaranty or other security for the Obligations is
adequate.
11.5. Remedies Cumulative; No Waiver.
11.5.1. Cumulative Rights. All covenants, conditions, provisions, warranties,
guaranties, indemnities, and other undertakings of the Borrowers contained in the Loan
Documents are cumulative and not in derogation or substitution of each other. In
particular, the rights and remedies of the Agent and the Lenders are cumulative, may be
exercised at any time and from time to time, concurrently or in any order, and shall not be
exclusive of any other rights or remedies that the Agent and the Lenders may have, whether
under any agreement, by law, at equity, or otherwise.
11.5.2. Waivers. The failure or delay of the Agent or any Lender to require
strict performance by the Borrowers with any terms of the Loan Documents, or to exercise any
rights or remedies with respect to Collateral or otherwise, shall not operate as a waiver
thereof nor as
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establishment of a course of dealing. All rights and remedies shall continue
in full force and effect until Full Payment of all Obligations. No modification of any
terms of any Loan Documents (including any waiver thereof) shall be effective, unless such
modification is specifically provided in a writing directed to the Borrowers and executed by
the Agent or the Requisite Lenders, and such modification shall be applicable only to the
matter specified. No waiver of any Default or Event of Default shall constitute a waiver of
any other Default or Event of Default that may exist at such time, unless expressly stated.
If the Agent or any Lender accepts performance by any Obligor under any Loan Documents in a
manner other than that specified therein, or during any Default or Event of Default, or if
the Agent or any Lender shall delay or exercise any right or remedy under any Loan
Documents, such acceptance, delay, or exercise shall not operate to waive any Default or
Event of Default nor to preclude exercise of any other right or remedy. It is expressly
acknowledged by the Borrowers that any failure to satisfy a financial covenant on a
measurement date shall not be cured or remedied by satisfaction of such covenant on a
subsequent date.
SECTION 12. THE AGENT
12.1. Appointment, Authority and Duties of the Agent.
12.1.1. Appointment and Authority. Each Lender appoints and designates Bank of
America as the Agent hereunder. The Agent may, and each Lender authorizes the Agent to,
enter into all Loan Documents to which the Agent is intended to be a party and accept all
Security Documents, for the Agent’s benefit and the Pro Rata benefit of the Lenders. Each
Lender agrees that any action taken by the Agent or the Requisite Lenders in accordance with
the provisions of the Loan Documents, and the exercise by the Agent or the Requisite Lenders
of any rights or remedies set forth therein, together with all other powers reasonably
incidental thereto, shall be authorized and binding upon all Lenders. Without limiting the
generality of the foregoing, the Agent shall have the sole and exclusive authority to (a)
act as the disbursing and collecting agent for the Lenders with respect to all payments and
collections arising in connection with the Loan Documents, (b) execute and deliver as the
Agent each Loan Document, including any intercreditor or subordination agreement, and accept
delivery of each Loan Document from any Obligor or other Person, (c) act as collateral agent
for the Secured Parties for purposes of perfecting and administering Liens under the Loan Documents, and for all other purposes
stated therein, (d) manage, supervise, or otherwise deal with the Collateral, and (e)
exercise all rights and remedies given to the Agent with respect to any Collateral under the
Loan Documents, Applicable Law, or otherwise. The duties of the Agent shall be ministerial
and administrative in nature, and the Agent shall not have a fiduciary relationship with any
Lender, Secured Party, Participant, or other Person, by reason of any Loan Document or any
transaction relating thereto. The Agent alone shall be authorized to determine whether any
Accounts constitute Eligible Accounts or Eligible Foreign Accounts (subject to clause
(iii) of Section 14.1.1(d)), or whether to impose or release any reserve, which
determinations and judgments, if exercised in good faith, shall exonerate the Agent from
liability to any Lender or other Person for any error in judgment.
12.1.2. Duties. The Agent shall not have any duties except those expressly set
forth in the Loan Documents, nor be required to initiate or conduct any Enforcement Action
except to the extent directed to do so by the Requisite Lenders while an Event of Default
exists. The conferral upon the Agent of any right shall not imply a duty on the Agent’s
part to exercise such right, unless instructed to do so by the Requisite Lenders in
accordance with this Agreement.
12.1.3. Agent Professionals. The Agent may perform its duties through agents
and employees. The Agent may consult with and employ Agent Professionals, and shall be
entitled to
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act upon, and shall be fully protected in any action taken in good faith
reliance upon, any advice given by an Agent Professional. The Agent shall not be
responsible for the negligence or misconduct of any agents, employees, or Agent
Professionals selected by it with reasonable care.
12.1.4. Instructions of the Requisite Lenders. The rights and remedies
conferred upon the Agent under the Loan Documents may be exercised without the necessity of
joinder of any other party, unless required by Applicable Law. The Agent may request
instructions from the Requisite Lenders with respect to any act (including the failure to
act) in connection with any Loan Documents, and may seek assurances to its satisfaction from
the Lenders of their indemnification obligations under Section 12.6 against all
Claims that could be incurred by the Agent in connection with any act. The Agent shall be
entitled to refrain from any act until it has received such instructions or assurances, and
the Agent shall not incur liability to any Person by reason of so refraining. Instructions
of the Requisite Lenders shall be binding upon all Lenders, and no Lender shall have any
right of action whatsoever against the Agent as a result of the Agent acting or refraining
from acting in accordance with the instructions of the Requisite Lenders. Notwithstanding
the foregoing, instructions by and consent of all Lenders shall be required in the
circumstances described in Section 14.1.1, and in no event shall the Requisite
Lenders, without the prior written consent of each Lender, direct the Agent to accelerate
and demand payment of Revolving Loans held by one Lender without accelerating and demanding
payment of all other Revolving Loans, nor to terminate the Revolving Commitments of one
Lender without terminating the Revolving Commitments of all Lenders. In no event shall the
Agent be required to take any action that, in its opinion, is contrary to Applicable Law or
any Loan Documents or could subject any Agent Indemnitee to personal liability.
12.2. Agreements Regarding Collateral and Field Examination Reports.
12.2.1. Lien Releases; Care of Collateral. The Lenders authorize the Agent to
release or subordinate any Lien with respect to any Collateral (a) upon Full Payment of the
Obligations, (b) that is the subject of an Asset Sale, transfer, sale, lease, or other
disposition permitted by this Agreement which the Borrowers certify in writing to the Agent
is permitted pursuant to the terms of this Agreement or is subject to a Lien which the
Borrowers certify is a Permitted Lien entitled to priority over the Agent’s Liens pursuant to the terms of this Agreement (and the
Agent may rely conclusively on any such certificate without further inquiry), (c) that does
not constitute Collateral with a book value greater than $10,000,000 during any calendar
year, or (d) with the written consent of all Lenders. The Agent shall have no obligation
whatsoever to any Lenders to assure that any Collateral exists or is owned by a Borrower, or
is cared for, protected, insured, or encumbered, nor to assure that the Agent’s Liens have
been properly created, perfected, or enforced, or are entitled to any particular priority,
nor to exercise any duty of care with respect to any Collateral. Each of the Lenders hereby
directs the Agent to execute and deliver or file such termination statements and partial
release statements and do such things as are necessary to release or subordinate any Liens
to be released or subordinated pursuant to this Section 12.2.1 upon the
effectiveness of such release.
12.2.2. Possession of Collateral. The Agent and the Lenders appoint each other
Lender as agent for the purpose of perfecting Liens (for the benefit of the Secured Parties)
in any Collateral that, under the UCC or other Applicable Law, can be perfected by
possession. If any Lender obtains possession of any such Collateral, it shall notify the
Agent thereof and, promptly upon the Agent’s request, deliver such Collateral to the Agent
or otherwise deal with such Collateral in accordance with the Agent’s instructions.
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12.2.3. Reports. The Agent shall promptly, upon receipt thereof, forward to
each Lender copies of the results of any field audit or other examination prepared by or on
behalf of the Agent with respect to any Obligor or Collateral (“Report”). Each
Lender agrees (a) that neither Bank of America nor the Agent makes any representation or
warranty as to the accuracy or completeness of any Report, and shall not be liable for any
information contained in or omitted from any Report, (b) that the Reports are not intended
to be comprehensive audits or examinations, and that the Agent or any other Person
performing any audit or examination will inspect only specific information regarding
Obligations or the Collateral and will rely significantly upon the Borrowers’ books and
records as well as upon representations of the Borrowers’ officers and employees, and (c) to
keep all Reports confidential and strictly for such Lender’s internal use, and not to
distribute any Report (or the contents thereof) to any Person (except to such Lender’s
Participants, attorneys, accountants, and other Persons with whom such Lender has a
confidential relationship) or use any Report in any manner other than administration of the
Revolving Loans and other Obligations. Each Lender agrees to indemnify and hold harmless
the Agent and any other Person preparing a Report from any action such Lender may take as a
result of or any conclusion it may draw from any Report, as well as any Claims arising in
connection with any third parties that obtain all or any part of a Report through such
Lender. The Agent will arrange for and cause to be conducted a field examination of
Borrowers if requested in writing signed by (a) at any time when there are more than three
(3) Lenders (subject to Section 4.2), Requisite Lenders as defined by the definition
of “Requisite Lenders” without giving effect to the proviso thereof or (b) at any
time when there are three (3) or fewer Lenders (subject to Section 4.2), all Lenders
other than the Agent.
12.3. Reliance By the Agent. The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any certification, notice, or other communication (including those by
telephone, telex, telegram, telecopy, or e-mail) believed by it to be genuine and correct and to
have been signed, sent, or made by the proper Person, and upon the advice and statements of Agent
Professionals.
12.4. Action Upon Default. The Agent shall not be deemed to have knowledge of any
Default or Event of Default unless it has received written notice from a Lender or a Borrower
specifying the occurrence and nature thereof. If the Agent receives such a notice or otherwise
acquires actual knowledge of any Default or Event of Default, the Agent shall promptly notify the Lenders in
writing. If any Lender acquires knowledge of a Default or Event of Default, it shall promptly
notify the Agent and the other Lenders thereof in writing. Each Lender agrees that, except as
otherwise provided in any Loan Documents or with the written consent of the Agent and the Requisite
Lenders, such Lender will not take any Enforcement Action, accelerate its Obligations, or exercise
any right that it might otherwise have under Applicable Law to credit bid at foreclosure sales, UCC
sales, or other similar dispositions of Collateral. Notwithstanding the foregoing, a Lender may
take action to preserve or enforce its rights against an Obligor where a deadline or limitation
period is applicable that would, absent such action, bar enforcement of Obligations held by such
Lender, including the filing of proofs of claim in an Insolvency Proceeding.
12.5. Ratable Sharing. If any Lender shall obtain any payment or reduction of any
Obligation (whether through set-off or otherwise) in excess of its Pro Rata share of payments or
reductions of Obligations obtained by all Lenders, such Lender shall forthwith purchase from the
other Lenders such participations in the affected Obligations as shall be necessary to cause the
purchasing Lender to share the excess payment or reduction, net of costs incurred in connection
therewith, on a Pro Rata basis, provided that if any of such payment or reduction is
thereafter recovered from the purchasing Lender or if any additional costs are incurred, the
purchase shall be rescinded and the purchase price restored to the extent of such recovery or
additional costs, but without interest.
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12.6. Indemnification of the Agent Indemnitees.
12.6.1. Indemnification. EACH LENDER SHALL INDEMNIFY AND HOLD HARMLESS THE
AGENT INDEMNITEES, TO THE EXTENT NOT REIMBURSED BY THE OBLIGORS (BUT WITHOUT LIMITING THE
INDEMNIFICATION OBLIGATIONS OF THE OBLIGORS UNDER ANY LOAN DOCUMENTS), ON A PRO RATA BASIS,
AGAINST ALL CLAIMS THAT MAY BE INCURRED BY OR ASSERTED AGAINST ANY AGENT INDEMNITEE. If the
Agent is sued by any receiver, trustee in bankruptcy, debtor-in-possession, or other Person
for any alleged preference from an Obligor or fraudulent transfer, then any monies paid by
the Agent in settlement or satisfaction of such proceeding, together with all interest,
costs and expenses (including reasonable attorneys’ fees) incurred in the defense of same,
shall be promptly reimbursed to the Agent by the Lenders to the extent of each Lender’s Pro
Rata share.
12.6.2. Proceedings. Without limiting the generality of the foregoing, if at
any time (whether prior to or after the Termination Date) any proceeding is brought against
any Agent Indemnitees by an Obligor, or any Person claiming through an Obligor, to recover
damages for any act taken or omitted by the Agent in connection with any Obligations,
Collateral, Loan Documents, or matters relating thereto, or otherwise to obtain any other
relief of any kind on account of any transaction relating to any Loan Documents, each Lender
agrees to indemnify and hold harmless the Agent Indemnitees with respect thereto and to pay
to the Agent Indemnitees such Lender’s Pro Rata share of any amount that any Agent
Indemnitee is required to pay under any judgment or other order entered in such proceeding
or by reason of any settlement, including all interest, costs, and expenses (including
reasonable attorneys’ fees) incurred in defending same. In the Agent’s discretion, the
Agent may reserve for any such proceeding, and may satisfy any judgment, order, or
settlement, from proceeds of Collateral prior to making any distributions of Collateral
proceeds to the Lenders.
12.7. Limitation on Responsibilities of the Agent. The Agent shall not be liable to
the Lenders for any action taken or omitted to be taken under the Loan Documents, except for losses
directly and solely caused by the Agent’s gross negligence or willful misconduct. The Agent does not
assume any responsibility for any failure or delay in performance or any breach by any Obligor or
Lender of any obligations under the Loan Documents. The Agent does not make to the Lenders any
express or implied warranty, representation, or guarantee with respect to any Obligations,
Collateral, Loan Documents, or Obligor. No Agent Indemnitee shall be responsible to the Lenders
for (a) any recitals, statements, information, representations, or warranties contained in any Loan
Documents, (b) the execution, validity, genuineness, effectiveness, or enforceability of any Loan
Documents, (c) the genuineness, enforceability, collectibility, value, sufficiency, location, or
existence of any Collateral, or the validity, extent, perfection, or priority of any Lien therein,
(d) the validity, enforceability, or collectibility of any Obligations, (e) or the assets,
liabilities, financial condition, results of operations, business, creditworthiness, or legal
status of any Obligor or Account Debtor. No Agent Indemnitee shall have any obligation to any
Lender to ascertain or inquire into the existence of any Default or Event of Default, the
observance or performance by any Obligor of any terms of the Loan Documents, or the satisfaction of
any conditions precedent contained in any Loan Documents.
12.8. Successor Agent and Co-Agents.
12.8.1. Resignation; Successor Agent. Subject to the appointment and
acceptance of a successor administrative agent as provided below, the Agent may resign at
any time by giving at least 30 days written notice thereof to the Lenders and the Borrowers.
Upon receipt of such notice, the Requisite Lenders shall have the right to appoint a
successor administrative agent
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which shall be (a) a Lender or an Affiliate of a Lender or
(b) a commercial bank that is organized under the laws of the United States or any state or
district thereof, has a combined capital surplus of at least $200,000,000, and, provided no
Default or Event of Default then exists, is reasonably acceptable to the Borrowers. If no
successor administrative agent is appointed prior to the effective date of the resignation
of the Agent, then the Agent may appoint a successor administrative agent from among
Lenders. Upon acceptance by a successor administrative agent of an appointment to serve as
the administrative agent hereunder, such successor administrative agent shall thereupon
succeed to and become vested with all the powers and duties of the retiring Agent without
further act, and the retiring Agent shall be discharged from its duties and obligations
hereunder but shall continue to enjoy the benefits of the indemnification set forth in
Section 12.6 and Section 14.2. Notwithstanding any Agent’s resignation, the
provisions of this Section 12 shall continue in effect for its benefit with respect
to any actions taken or omitted to be taken by it while Agent. Any successor by merger or
acquisition of the stock or assets of Bank of America shall continue to be the Agent
hereunder without further act on the part of the parties hereto, unless such successor
resigns as provided above.
12.8.2. Separate Collateral Agent. It is the intent of the parties that there
shall be no violation of any Applicable Law denying or restricting the right of financial
institutions to transact business in any jurisdiction. If the Agent believes that it may be
limited in the exercise of any rights or remedies under the Loan Documents due to any
Applicable Law, the Agent may appoint an additional Person who is not so limited, as a
separate collateral agent or co-collateral agent. If the Agent so appoints a collateral
agent or co-collateral agent, each right and remedy intended to be available to the Agent
under the Loan Documents shall also be vested in such separate agent. Every covenant and
obligation necessary to the exercise thereof by such separate agent shall run to and be
enforceable by it as well as the Agent. The Lenders shall execute and deliver such
documents as the Agent deems appropriate to vest any rights or remedies in such separate
agent. If any collateral agent or co-collateral agent shall die or dissolve, become
incapable of acting, resign, or be removed, then all the rights and remedies of such
separate agent, to the extent permitted by Applicable Law, shall vest in and be exercised by the Agent
until appointment of a new separate agent.
12.9. Due Diligence and Non-Reliance. Each Lender acknowledges and agrees that it
has, independently and without reliance upon the Agent or any other Lenders, and based upon such
documents, information, and analyses as it has deemed appropriate, made its own credit analysis of
each Obligor and its own decision to enter into this Agreement and to fund Revolving Loans and
participate in LC Obligations hereunder. Each Lender has made such inquiries concerning the Loan
Documents, the Collateral, and each Obligor as such Lender feels necessary. Each Lender further
acknowledges and agrees that the other Lenders and the Agent have made no representations or
warranties concerning any Obligor, any Collateral, or the legality, validity, sufficiency, or
enforceability of any Loan Documents or Obligations. Each Lender will, independently and without
reliance upon the other Lenders or the Agent, and based upon such financial statements, documents,
and information as such Lender deems appropriate at the time, continue to make and rely upon its
own credit decisions in making Revolving Loans and participating in LC Obligations, and in taking
or refraining from any action under any Loan Documents. Except for notices, reports, and other
information expressly requested by a Lender, the Agent shall have no duty or responsibility to
provide any Lender with any notices, reports, or certificates furnished to the Agent by any Obligor
or any credit or other information concerning the affairs, financial condition, business, or
Properties of any Obligor (or any of its Affiliates) which may come into possession of the Agent or
any of the Agent’s Affiliates.
12.10. Replacement of Certain Lenders. If a Lender (a) is a Defaulting Lender, or (b)
fails to give its consent to any amendment, waiver, or action for which consent of all Lenders was
required and
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the Requisite Lenders consented, then, in addition to any other rights and remedies
that any Person may have, the Agent may, by notice to such Lender within 120 days, require such
Lender to assign all of its rights and obligations under the Loan Documents to Eligible Assignee(s)
specified by the Agent, pursuant to appropriate Assignment and Acceptance(s) and within 20 days
after the Agent’s notice. The Agent is irrevocably appointed as attorney-in-fact to execute any
such Assignment and Acceptance if the Lender fails to execute same. Such Lender shall be entitled
to receive, in cash, concurrently with such assignment, all amounts owed to it under the Loan
Documents, including all principal, interest, and fees through the date of assignment (but
excluding any prepayment charge). Borrower shall pay the processing fee required by Section
13.3.2 with respect to any assignment by a Lender pursuant to clause (b) preceding.
12.11. Remittance of Payments and Collections.
12.11.1. Remittances Generally. All payments by any Lender to the Agent shall
be made by the time and on the day set forth in this Agreement, in immediately available
funds. If no time for payment is specified or if payment is due on demand by the Agent and
request for payment is made by the Agent by 11:00 a.m. on a Business Day, payment shall be
made by the Lender not later than 2:00 p.m. on such day, and if request is made after 11:00
a.m., then payment shall be made by 11:00 a.m. on the next Business Day. Payment by the
Agent to any Lender shall be made by wire transfer, in the type of funds received by the
Agent. Any such payment shall be subject to the Agent’s right of offset for any amounts due
from such Lender under the Loan Documents.
12.11.2. Failure to Pay. If any Lender fails to pay any amount when due by it
to the Agent pursuant to the terms hereof, such amount shall bear interest from the due date
until paid at the Federal Funds Rate for the first two Business Days and thereafter at the
rate applicable to Base Rate Revolving Loans. In no event shall the Borrowers be entitled
to receive credit for any interest paid by a Lender to the Agent, nor shall any Defaulting Lender be entitled to
interest on any amounts held by Agent pursuant to Section 4.2.
12.11.3. Recovery of Payments. If the Agent pays any amount to a Lender in the
expectation that a related payment will be received by the Agent from an Obligor and such
related payment is not received, then the Agent may recover such amount from each Lender
that received it. If the Agent determines at any time that an amount received under any
Loan Document must be returned to an Obligor or paid to any other Person pursuant to
Applicable Law or otherwise, then, notwithstanding any other term of any Loan Document, the
Agent shall not be required to distribute such amount to any Lender. If any amounts
received and applied by the Agent to any Obligations are later required to be returned by
the Agent pursuant to Applicable Law, each Lender shall pay to the Agent, on demand, such
Lender’s Pro Rata share of the amounts required to be returned.
12.12. The Agent in its Individual Capacity. As a Lender, Bank of America shall have
the same rights and remedies under the other Loan Documents as any other Lender, and the terms
“Lenders,” “Requisite Lenders” or any similar term shall include Bank of America in its capacity as
a Lender. Each of Bank of America and its Affiliates may accept deposits from, maintain deposits
or credit balances for, invest in, lend money to, provide Bank Products to, act as trustee under
indentures of, serve as financial or other advisor to, and generally engage in any kind of business
with, the Obligors and their Affiliates, as if Bank of America were any other bank, without any
duty to account therefor (including any fees or other consideration received in connection
therewith) to the other Lenders. In their individual capacity, Bank of America and its Affiliates
may receive information regarding the Obligors, their Affiliates, and their Account Debtors
(including information subject to confidentiality obligations), and each Lender agrees
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that Bank of America and its Affiliates shall be under no obligation to provide such information to the Lenders,
if acquired in such individual capacity and not as the Agent hereunder.
12.13. Documentation Agent. The Documentation Agent shall not have any right, power,
responsibility, or duty under any Loan Documents other than those applicable to all Lenders, and
shall in no event be deemed to have any fiduciary relationship with any other Lender.
12.14. No Third Party Beneficiaries. This Section 12 is an agreement solely
among the Lenders and the Agent, and does not confer any rights or benefits upon the Borrowers or
any other Person. As between the Borrowers and the Agent, any action that the Agent may take under
any Loan Documents shall be conclusively presumed to have been authorized and directed by the
Lenders as herein provided.
SECTION 13. BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS
13.1. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the Borrowers, the Agent, and the Lenders and their respective successors and assigns,
except that (a) no Borrower shall have the right to assign its rights or delegate its obligations
under any Loan Documents and (b) any assignment by a Lender must be made in compliance with
Section 13.3. The Agent may treat the Person which made any Revolving Loan as the owner
thereof for all purposes until such Person makes an assignment in accordance with Section
13.3. Any authorization or consent of a Lender shall be conclusive and binding on any
subsequent transferee or assignee of such Lender.
13.2. Participations.
13.2.1. Permitted Participants; Effect. Any Lender may, in the ordinary course
of its business and in accordance with Applicable Law, at any time sell to a financial
institution (“Participant”) a participating interest in the rights and obligations of such
Lender under any Loan Documents. Despite any sale by a Lender of participating interests to
a Participant, such Lender’s obligations under the Loan Documents shall remain unchanged,
such Lender shall remain solely responsible to the other parties hereto for performance of
such obligations, such Lender shall remain the holder of its Revolving Loans and Revolving
Commitments for all purposes, all amounts payable by the Borrowers shall be determined as if
such Lender had not sold such participating interests, and the Borrowers and the Agent shall
continue to deal solely and directly with such Lender in connection with the Loan Documents.
Each Lender shall be solely responsible for notifying its Participants of any matters under
the Loan Documents, and the Agent and the other Lenders shall not have any obligation or
liability to any such Participant. A Participant that would be a Foreign Lender if it were
a Lender shall not be entitled to the benefits of Section 5.9 unless the Borrowers
agree otherwise in writing.
13.2.2. Voting Rights. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, waiver, or other modification of any
Loan Documents other than that which forgives principal, interest, or fees, reduces the
stated interest rate or fees payable with respect to any Revolving Loan or Revolving
Commitment in which such Participant has an interest, postpones the Termination Date, or any
date fixed for any regularly scheduled payment of principal, interest, or fees on such
Revolving Loan or Revolving Commitment, or releases any Borrower, Guarantor, or substantial
portion of the Collateral.
13.2.3. Benefit of Set-Off. The Borrowers agree that each Participant shall
have a right of set-off in respect of its participating interest to the same extent as if
such interest were owing directly to a Lender, and each Lender shall also retain the right
of set-off with respect to any participating interests sold by it. By exercising any right
of set-off, a Participant agrees to share
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with the Lenders all amounts received through its
set-off, in accordance with Section 12.5 as if such Participant were a Lender.
13.3. Assignments.
13.3.1. Permitted Assignments. A Lender may assign to any Eligible Assignee
any of its rights and obligations under the Loan Documents, as long as (a) each assignment
is of a constant, and not a varying, percentage of the transferor Lender’s rights and
obligations under the Loan Documents and, in the case of a partial assignment, is in a
minimum principal amount of $15,000,000 (unless otherwise agreed by the Agent in its
discretion) and integral multiples of $5,000,000 in excess of that amount, (b) except in the
case of an assignment in whole of a Lender’s rights and obligations, the aggregate amount of
the Revolving Commitments retained by the transferor Lender be at least $12,500,000 (unless
otherwise agreed by the Agent in its discretion), and (c) the parties to each such
assignment shall execute and deliver to the Agent, for its acceptance and recording, an
Assignment and Acceptance. Nothing herein shall limit the right of a Lender to pledge or
assign any rights under the Loan Documents to (i) any Federal Reserve Bank or the United
States Treasury as collateral security pursuant to Regulation A of the Board of Governors
and any Operating Circular issued by such Federal Reserve Bank or (ii) counterparties to
swap agreements relating to any Revolving Loans; provided that any payment by the
Borrowers to the assigning Lender in respect of any Obligations assigned as described in
this sentence shall satisfy the Borrowers’ obligations hereunder to the extent of such
payment, and no such assignment shall release the assigning Lender from its obligations
hereunder.
13.3.2. Effect; Effective Date. Upon delivery to the Agent of a notice of
assignment in the form of Exhibit F and a processing fee of $5,000, such assignment
shall become effective as specified in the notice, if it complies with this Section 13.3. From the
effective date of such assignment, the Eligible Assignee shall for all purposes be a Lender
under the Loan Documents, and shall have all rights and obligations of a Lender thereunder.
Upon consummation of an assignment, the transferor Lender, the Agent, and the Borrowers
shall make appropriate arrangements for issuance of replacement and/or new Notes, as
appropriate.
13.4. Tax Treatment. If any interest in a Loan Document is transferred to a
Transferee that is organized under the laws of any jurisdiction other than the United States or any
state or district thereof, the transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the provisions of Section 5.10.
13.5. Representation of Lenders. Each Lender represents and warrants to each
Borrower, the Agent, and other Lenders that none of the consideration used by it to fund its
Revolving Loans or to participate in any other transactions under this Agreement constitutes for
any purpose of ERISA or Section 4975 of the Internal Revenue Code assets of any “plan” as defined
in Section 3(3) of ERISA or Section 4975 of the Internal Revenue Code and the interests of such
Lender in and under the Loan Documents shall not constitute plan assets under ERISA.
SECTION 14. MISCELLANEOUS
14.1. Consents, Amendments and Waivers.
14.1.1. Amendment. No modification of any Loan Document, including any
extension or amendment of a Loan Document or any waiver of a Default or Event of Default,
shall be effective without the prior written agreement of the Agent, with the consent of the
Requisite Lenders, and the Borrowers; provided that:
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(a) without the prior written consent of the Agent, no modification shall be
effective with respect to any provision in a Loan Document that relates to any
rights, duties, or discretion of the Agent;
(b) without the prior written consent of the Issuing Bank, no modification
shall be effective with respect to any LC Obligations or Section 2.3;
(c) without the prior written consent of each affected Lender, no modification
shall be effective that would (i) increase any Revolving Commitment of such Lender
or (ii) reduce the amount of, or waive or delay payment of, any principal, interest,
or fees payable to such Lender; and
(d) without the prior written consent of all Lenders (except a Defaulting
Lender as provided in Section 4.2), no modification shall be effective that
would (i) extend the Termination Date, (ii) alter Section 2.1.5, Section
2.1.6, Section 5.6, Section 5.7, Section 7.1 (except to
add Collateral), Section 10.3, or Section 14.1.1; (iii) amend the
definitions of Borrowing Base (and the defined terms used in such definition),
Triggered Activation Period, Pro Rata or Requisite Lenders, (iv) increase any
advance rate, (v) change the dollar amount or percentage specified in clauses
(a) or (b) of Section 8.1, (vi) increase the aggregate Revolving
Commitments except as provided by Section 2.1.7, (vii) release Collateral
with a book value greater than $10,000,000 during any calendar year, except as
currently contemplated by the Loan Documents, (viii) agree to subordinate any
Obligations or (ix) release any Obligor from liability for any Obligations, if such
Obligor is Solvent at the time of the release, or subordinate the Agent’s Lien in
any Collateral, in either such case except as allowed by Section 12.2.1;
provided, further, that notwithstanding the foregoing, a Fee Letter may be amended
by the parties to such Fee Letter.
14.1.2. Limitations. The agreement of the Borrowers shall not be necessary to
the effectiveness of any modification of a Loan Document that deals solely with the rights
and duties of the Lenders, the Agent, and/or the Issuing Bank as among themselves. Only the
consent of the parties to any agreement relating to a Bank Product shall be required for any
modification of such agreement, and no Affiliate of the provider of any Bank Products that
is party to a Bank Product agreement shall have any other right to consent to or participate
in any manner in modification of any other Loan Document. The making of any Revolving Loans
during the existence of a Default or Event of Default shall not be deemed to constitute a
waiver of such Default or Event of Default, nor to establish a course of dealing. Any
waiver or consent granted by the Lenders hereunder shall be effective only if in writing,
and then only in the specific instance and for the specific purpose for which it is given.
14.1.3. Payment for Consents. No Borrower will, directly or indirectly, pay
any remuneration or other thing of value, whether by way of additional interest, fee, or
otherwise, to any Lender (in its capacity as a Lender hereunder) as consideration for
agreement by such Lender with any modification of any Loan Documents, unless such
remuneration or value is concurrently paid, on the same terms, on a Pro Rata basis to all
Lenders providing their consent.
14.2. General Indemnity. EACH BORROWER SHALL INDEMNIFY AND HOLD HARMLESS THE
INDEMNITEES AGAINST ANY CLAIMS THAT MAY BE INCURRED BY OR ASSERTED AGAINST ANY INDEMNITEES,
INCLUDING CLAIMS ARISING FROM THE NEGLIGENCE OF AN INDEMNITEE. If any Taxes (other than Excluded Taxes) shall be
payable by
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any party due to the execution, delivery, issuance, or recording of any Loan Documents,
or the creation or repayment of any Obligations, the Borrowers shall pay (and shall promptly
reimburse the Agent and the Lenders for their payment of) all such Taxes, including any interest
and penalties thereon, and will indemnify and hold harmless the Indemnitees against all liability
in connection therewith.
14.3. Limitations of Indemnities. IN NO EVENT SHALL ANY PARTY TO A LOAN DOCUMENT
HAVE ANY OBLIGATION THEREUNDER TO INDEMNIFY AN INDEMNITEE WITH RESPECT TO A CLAIM THAT IS
DETERMINED IN A FINAL, NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO RESULT FROM
THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE. The obligation of each Obligor
and Lender with respect to each indemnity given by it in any Loan Documents shall survive Full
Payment of the Obligations.
14.4. Notices and Communications.
14.4.1. Notice Address. Subject to Section 4.1.4, all notices,
requests, and other communications by or to a party hereto shall be in writing and shall be
given to any Borrower, at the Borrower Agent’s address shown on the signature pages hereof,
and to any other Person at its address shown on the signature pages hereof (or, in the case
of a Person who becomes a Lender after the Closing Date, at the address shown on its
Assignment and Acceptance), or at such other address as a party may hereafter specify by
notice in accordance with this Section 14.4. Each such notice, request, or other
communication shall be effective only (a) if given by facsimile transmission, when
transmitted to the applicable facsimile number, if confirmation of receipt is received and
if such facsimile transmission is followed by a copy of such notice by mail or personal
delivery, (b) if given by mail, three Business Days after deposit in the United States mail,
with first-class postage pre-paid, addressed to the applicable address, or (c) if given by
personal delivery, when duly delivered to the notice address with receipt acknowledged.
Notwithstanding the foregoing, no notice to the Agent pursuant to Section 2.1.4,
Section 2.3, Section 3.1.2, Section 4.1.1, or Section 5.3.3
shall be effective until actually received by the individual to whose attention at the Agent
such notice is required to be sent. Any written notice, request, or other communication
that is not sent in conformity with the foregoing provisions shall nevertheless be effective
on the date actually received by the noticed party. Any notice received by the Borrower
Agent shall be deemed received by all Borrowers.
14.4.2. Electronic Communications; Voice Mail. Except for electronic
submission of Notices of Borrowing and Notices of Conversion/Continuation, electronic mail
and intranet websites may be used only for routine communications, such as transmission of
financial statements, Borrowing Base Certificates, and other information required by
Section 10.1.2, administrative matters, and distribution of Loan Documents for
execution. The Agent and the Lenders make no assurances as to the privacy and security of
electronic communications. Electronic and voice mail may not be used as effective notice
under the Loan Documents.
14.4.3. Non-Conforming Communications. The Agent and the Lenders may rely upon
any notices (including telephonic communications) purportedly given by or on behalf of any
Borrower even if such notices were not made in a manner specified herein, were incomplete or
were not confirmed, or if the terms thereof, as understood by the recipient, varied from a
later confirmation. Each Borrower shall indemnify and hold harmless each Indemnitee from
any liabilities, losses, costs, and expenses arising from any telephonic communication
purportedly given by or on behalf of a Borrower.
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14.5. Performance of the Borrowers’ Obligations. The Agent may, in its discretion at
any time and from time to time, at the Borrowers’ expense, pay any amount or do any act required of
a Borrower under any Loan Documents or otherwise lawfully requested by the Agent to (a) enforce any
Loan Documents or collect any Obligations, (b) protect, insure, maintain, or realize upon any
Collateral, or (c) defend or maintain the validity or priority of the Agent’s Liens in any
Collateral, including any payment of a judgment, insurance premium, warehouse charge, finishing or
processing charge, or landlord claim, or any discharge of a Lien. All payments, costs, and
expenses (including Extraordinary Expenses) of the Agent under this Section shall be reimbursed to
the Agent by the Borrowers, on demand, with interest from the date incurred to the date of payment
thereof at the Default Rate applicable to Base Rate Revolving Loans. Any payment made or action
taken by the Agent under this Section shall be without prejudice to any right to assert an Event of
Default or to exercise any other rights or remedies under the Loan Documents.
14.6. Credit Inquiries. Each Borrower hereby authorizes the Agent and the Lenders
(but they shall have no obligation) to respond to usual and customary credit inquiries from third
parties concerning any Borrower or Subsidiary.
14.7. Severability. Wherever possible, each provision of the Loan Documents shall be
interpreted in such manner as to be valid under Applicable Law. If any provision is found to be
invalid under Applicable Law, it shall be ineffective only to the extent of such invalidity and the
remaining provisions of the Loan Documents shall remain in full force and effect.
14.8. Cumulative Effect; Conflict of Terms. The provisions of the Loan Documents are
cumulative. The parties acknowledge that the Loan Documents may use several different limitations,
tests or measurements to regulate the same or similar matters, and they agree that these are
cumulative and that each must be performed as provided. Except as otherwise specifically provided
in another Loan Document (by specific reference to the applicable provision of this Agreement), if
any provision contained herein is in direct conflict with any provision in another Loan Document,
the provision herein shall govern and control.
14.9. Counterparts; Facsimile Signatures. Any Loan Document may be executed in
counterparts, each of which taken together shall constitute one instrument. Loan Documents may be
executed and delivered by facsimile, and they shall have the same force and effect as manually
signed originals. The Agent may require confirmation by a manually-signed original, but failure to
request or deliver same shall not limit the effectiveness of any facsimile signature.
14.10. Entire Agreement. Time is of the essence of the Loan Documents. The Loan
Documents embody the entire understanding of the parties with respect to the subject matter thereof
and supersede all prior understandings regarding the same subject matter.
14.11. Relationship with Lenders; No Advisory or Fiduciary Responsibility. The
obligations of each Lender hereunder are several, and no Lender shall be responsible for the
obligations or Commitments of any other Lender. Amounts payable hereunder to each Lender shall be
a separate and independent debt. It shall not be necessary for the Agent or any other Lender to be
joined as an additional party in any proceeding for such purposes. Nothing in this Agreement and
no action of the Agent or the Lenders pursuant to the Loan Documents shall be deemed to constitute
the Agent and the Lenders to be a partnership, association, joint venture or any other kind of
entity, nor to constitute control of any Borrower. In connection with all aspects of each
transaction contemplated by any Loan Document, the Borrowers acknowledge and agree that (a)(i) this
credit facility and any related arranging or other services by the Agent, any Lender, any of their
Affiliates or any arranger are arm’s-length commercial transactions
between the Borrowers and such Person; (ii) the Borrowers have consulted their own legal,
accounting,
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regulatory and tax advisors to the extent they have deemed appropriate; and (iii) the
Borrowers are capable of evaluating and understanding, and do understand and accept, the terms,
risks and conditions of the transactions contemplated by the Loan Documents; (b) each of the Agent,
the Lenders, their Affiliates and any arranger is and has been acting solely as a principal in
connection with this credit facility, is not the financial advisor, agent or fiduciary for the
Borrowers, any of their Affiliates or any other Person, and has no obligation with respect to the
transactions contemplated by the Loan Documents except as expressly set forth therein; and (c) the
Agent, the Lenders, their Affiliates and any arranger may be engaged in a broad range of
transactions that involve interests that differ from those of the Borrowers and their Affiliates,
and have no obligation to disclose any of such interests to the Borrowers or their Affiliates. To
the fullest extent permitted by Applicable Law, each Borrower hereby waives and releases any claims
that it may have against the Agent, the Lenders, their Affiliates and any arranger with respect to
any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any
transaction contemplated by a Loan Document.
14.12. Confidentiality. During the term of this Agreement and for 12 months
thereafter, the Agent and the Lenders agree to take reasonable precautions to maintain the
confidentiality of any information that the Borrowers deliver to the Agent and the Lenders and
identify as confidential at the time of delivery, except that the Agent and any Lender may disclose
such information (a) to their respective officers, directors, employees, Affiliates, and agents,
including legal counsel, auditors, and other professional advisors, (b) to any party to the Loan
Documents from time to time, (c) pursuant to the order of any court or administrative agency, (d)
upon the request of any Governmental Authority exercising regulatory authority over the Agent or
such Lender, (e) which ceases to be confidential, other than by an act or omission of the Agent or
any Lender, or which becomes available to the Agent or any Lender on a nonconfidential basis, (f)
to the extent reasonably required in connection with any litigation relating to any Loan Documents
or transactions contemplated thereby, or otherwise as required by Applicable Law, (g) to the extent
reasonably required for the exercise of any rights or remedies under the Loan Documents, (h) to any
actual or proposed party to a Bank Product or to any Transferee, as long as such Person agrees to
be bound by the provisions of this Section, (i) to the National Association of Insurance
Commissioners or any similar organization, or to any nationally recognized rating agency that
requires access to information about a Lender’s portfolio in connection with ratings issued with
respect to such Lender, (j) to any investor or potential investor in an Approved Fund that is a
Lender or Transferee, but solely for use by such investor to evaluate an investment in such
Approved Fund, or to any manager, servicer, or other Person in connection with its administration
of any such Approved Fund, or (k) with the consent of the Borrowers.
14.13. Original Loan Documents. On the Closing Date, Borrower hereby acknowledges,
ratifies and confirms the Original Loan Documents as being legal, valid and binding, and hereby
represents and warrants to, and covenants with, the Agent that there are no claims or offsets
against, or defenses or counterclaims to or against the rights of the Agent or the Lenders under or
in connection with the Original Loan Documents, the Original Loan and Security Agreement or this
Agreement. Without limiting the foregoing, in consideration of the Agent and the Lenders entering
into this Agreement, Borrower hereby waives any and all such claims, offsets, defenses, or
counterclaims, whether known or unknown, arising prior to the date hereof and relating to the
Original Loan Documents, the Original Loan and Security Agreement or this Agreement.
14.14. Continuation, Amendment and Restatement. This Agreement shall constitute an
amendment and restatement of the Original Loan and Security Agreement. On the Closing Date, the
Original Obligations shall be deemed to be renewed and continued, and not extinguished, and
thereupon and thereafter shall constitute and be included in the Obligations under this Agreement
(it being
understood and agreed that nothing herein or in any other Loan Document constitutes a novation
of the Original Obligations). On the Closing Date, the Liens granted to the Agent pursuant to the
Original
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Security Documents, to the extent such Original Security Documents are amended and
restated in connection with this Agreement, shall be renewed and continued as provided by the
Security Documents, and in any event, whether or not so amended and restated, shall continue in
full force and effect as security for all Obligations. On and after the Closing Date, all
references to the Original Loan and Security Agreement contained in any Original Loan Document, to
the extent any such Original Loan Document is not amended and restated in connection with this
Agreement, shall be deemed to mean the Original Loan and Security Agreement as amended and restated
by this Agreement.
14.15. Certifications Regarding Indebtedness Agreements. The Borrowers certify to the
Agent and the Lenders that neither the execution or performance of the Loan Documents nor the
incurrence of any Obligations by the Borrowers (including, in the case of any increase in the
aggregate Revolving Commitments pursuant to Section 2.1.7, the Loan Documents and the
Obligations after giving effect to any such increase as of the applicable Increase Effective Date)
violates the Senior Notes Indentures, the Convertible Senior Subordinated Notes Indentures, the
Convertible Subordinated Notes Indenture or any agreement, document, or instrument related thereto,
respectively. The Borrowers further certify that (a) the Revolving Commitments and the Obligations
constitute (including, in the case of any increase in the aggregate Revolving Commitments pursuant
to Section 2.1.7, the Obligations after giving effect to any such increase as of the
applicable Increase Effective Date) “Permitted Bank Debt” under the Indentures, (b) the Revolving
Commitments and the Obligations are hereby designated as and shall constitute “Designated Senior
Debt” under the Convertible Senior Subordinated Notes Indentures and the Convertible Subordinated
Notes Indenture, and (c) the Agent is a “Representative” as defined by each of the Convertible
Senior Subordinated Notes Indentures and the Convertible Subordinated Notes Indenture,
respectively. The Agent may condition Borrowings, Letters of Credit, and other credit
accommodations under the Loan Documents from time to time upon the Agent’s receipt of evidence that
the Revolving Commitments and Obligations continue to constitute “Permitted Bank Debt” under the
Indentures at such time and are permitted thereunder.
14.16. Governing Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, UNLESS
OTHERWISE SPECIFIED, 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). EACH PARTY TO THIS AGREEMENT AGREES THAT
IT WILL NOT OBJECT TO OR OTHERWISE OPPOSE THE APPLICATION OF THE LAWS OF THE STATE OF NEW YORK AS
PROVIDED BY THIS SECTION 14.16.
14.17. Consent to Forum. EACH BORROWER HEREBY CONSENTS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY FEDERAL OR STATE COURT SITTING IN OR WITH JURISDICTION OVER DALLAS, TEXAS, IN
ANY PROCEEDING OR DISPUTE RELATING IN ANY WAY TO ANY LOAN DOCUMENTS, AND AGREES THAT ANY SUCH
PROCEEDING SHALL BE BROUGHT BY SUCH BORROWER SOLELY IN ANY SUCH COURT. EACH BORROWER IRREVOCABLY
WAIVES ALL CLAIMS, OBJECTIONS, AND DEFENSES THAT IT MAY HAVE REGARDING SUCH COURT’S PERSONAL OR
SUBJECT MATTER JURISDICTION, VENUE, OR INCONVENIENT FORUM. Nothing herein shall limit the
right of the Agent or any Lender to bring proceedings against any Obligor in any other court.
Nothing in this Agreement shall be deemed to preclude enforcement by the Agent of any judgment or
order obtained in any forum or jurisdiction.
14.18. Waivers by the Borrowers.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, EACH BORROWER WAIVES (A) THE RIGHT TO TRIAL BY JURY
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(WHICH THE AGENT AND EACH LENDER HEREBY
ALSO WAIVES) IN ANY PROCEEDING, CLAIM OR COUNTERCLAIM OF ANY KIND RELATING IN ANY WAY TO ANY LOAN
DOCUMENTS, OBLIGATIONS, OR COLLATERAL, (B) PRESENTMENT, DEMAND, PROTEST, NOTICE OF PRESENTMENT,
DEFAULT, NON-PAYMENT, MATURITY, RELEASE, COMPROMISE, SETTLEMENT, EXTENSION, OR RENEWAL OF ANY
COMMERCIAL PAPER, ACCOUNTS, CONTRACT RIGHTS, DOCUMENTS, INSTRUMENTS, CHATTEL PAPER, AND GUARANTIES
AT ANY TIME HELD BY THE AGENT ON WHICH A BORROWER MAY IN ANY WAY BE LIABLE, AND HEREBY RATIFIES
ANYTHING THE AGENT MAY DO IN THIS REGARD, (C) NOTICE PRIOR TO TAKING POSSESSION OR CONTROL OF ANY
COLLATERAL, (D) ANY BOND OR SECURITY THAT MIGHT BE REQUIRED BY A COURT PRIOR TO ALLOWING THE AGENT
TO EXERCISE ANY RIGHTS OR REMEDIES, (E) THE BENEFIT OF ALL VALUATION, APPRAISEMENT AND EXEMPTION
LAWS, (F) ANY CLAIM AGAINST THE AGENT OR ANY LENDER, ON ANY THEORY OF LIABILITY, FOR SPECIAL,
INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES) IN
ANY WAY RELATING TO ANY ENFORCEMENT ACTION, OBLIGATIONS, LOAN DOCUMENTS, OR TRANSACTIONS RELATING
THERETO, AND (G) NOTICE OF ACCEPTANCE HEREOF. EACH BORROWER ACKNOWLEDGES THAT THE FOREGOING
WAIVERS ARE A MATERIAL INDUCEMENT TO THE AGENT AND THE LENDERS ENTERING INTO THIS AGREEMENT AND
THAT THE AGENT AND THE LENDERS ARE RELYING UPON THE FOREGOING IN THEIR DEALINGS WITH THE BORROWERS.
EACH BORROWER HAS REVIEWED THE FOREGOING WAIVERS WITH ITS LEGAL COUNSEL AND HAS KNOWINGLY AND
VOLUNTARILY WAIVED ITS JURY TRIAL AND OTHER RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN
THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
14.19. Additional Borrowers. Addition of any Person as a Borrower party to this
Agreement is subject to approval by the Agent and the Lenders, and may be conditioned upon such
requirements as they may determine in their discretion. The Agent and the Lenders have no
obligation to approve any Person for addition as a Borrower party to this Agreement.
14.20. Patriot Act Notice. The Agent and the Lenders hereby notify the Borrowers that
pursuant to the requirements of the Patriot Act, the Agent and the Lenders are required to obtain,
verify, and record information that identifies each Borrower, including its legal name, address,
tax ID number, and other information that will allow the Agent and the Lenders to identify each
Borrower in accordance with the Patriot Act. The Agent and the Lenders will also require
information regarding each personal guarantor, if any, and may require information regarding the
Borrowers’ management and owners, such as legal name, address, social security number, and date of
birth.
14.21. No Oral Agreement. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the date set forth
above.
BORROWER: AMKOR TECHNOLOGY, INC. |
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By: | /s/ Xxxxxx Xxxxxxx | |||
Name: | Xxxxxx Xxxxxxx | |||
Title: | Corporate Vice President and Chief Financial Officer |
|||
Address for notices to all Borrowers: c/o Amkor Technology, Inc. 0000 Xxxxx Xxxxx Xxxx Xxxxxxxx, Xxxxxxx 00000 Attention: Treasurer Telecopy: (000) 000-0000 |
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AGENT: BANK OF AMERICA, N.A. |
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By: | /s/ Xxx X. Xxxxxxxxxxx | |||
Xxx X. Xxxxxxxxxxx | ||||
Senior Vice President | ||||
Address for notices: Bank of America, N.A. 000 Xxxx Xxxxxx, 00xx Xxxxx TX1-492-11-23 Xxxxxx, Xxxxx 00000 Attention: Loan Administration Telecopy: (000) 000-0000 |
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LENDERS: BANK OF AMERICA, N.A. |
||||
By: | /s/ Xxx X. Xxxxxxxxxxx | |||
Xxx X. Xxxxxxxxxxx Senior Vice President |
||||
Address for notices: Bank of America, N.A. 000 Xxxx Xxxxxx, 00xx Xxxxx TX1-492-11-23 Xxxxxx, Xxxxx 00000 Attention: Loan Administration Telecopy: (000) 000-0000 |
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WACHOVIA CAPITAL FINANCE CORPORATION (WESTERN) |
||||
By: | /s/ Xxxxxx Xxxxxx | |||
Name: | Xxxxxx Xxxxxx | |||
Title: | Director | |||
Address for notices: Wachovia Capital Finance Corporation (Western) 000 Xxxxx Xxxx Xxxxxx Xxxxx 000 Xxxxxxxx, Xxxxxxxxxx 00000 Attention: Portfolio Manager — Amkor Telecopy: (000) 000-0000 |
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DEUTSCHE BANK TRUST COMPANY AMERICAS |
||||
By: | /s/ Xxxxxxxxxx Xxxxxx | |||
Name: | Xxxxxxxxxx Xxxxxx | |||
Title: | Director | |||
By: | /s/ Xxxxxx Xxxxxx | |||
Name: | Xxxxxx Xxxxxx | |||
Title: | Director | |||
Address for notices: Deutsche Bank Trust Company Americas 00 Xxxx Xxxxxx Xxx Xxxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxxx Xxxx Telecopy: (000) 000-0000 |
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With a copy to: Deutsche Bank Trust Company Americas 00 Xxxx Xxxxxx Xxx Xxxx Xxxx, Xxx Xxxx 00000 Attention: Loan Administration Telecopy: (000) 000-0000 |
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