EXHIBIT 99.5
LETTER OF GUARANTEE
(THE "GUARANTEE")
TO: CHINATRUST COMMERCIAL BANK, LTD.
as facility agent (the "Agent")
for the banks referred to in the
Loan Agreement (defined below) and
in its capacity as a joint and
several creditor
Date: November 30, 2005
Gentlemen:
The undersigned, AMKOR TECHNOLOGY, INC., is a company organized and existing
under the law of the State of Delaware, with its registered offices at 0000
Xxxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxx 00000, X.X.X. (the "Guarantor").
Reference is made to that certain NT$ 1,840,000,000 Syndicated Term Loan
Agreement, dated as of November 30, 2005 (the "Loan Agreement"), entered into by
and among AMKOR TECHNOLOGY TAIWAN, LTD., a company organized under the laws of
the Republic of China("R.O.C.") with its registered office at No.1 Kao-Ping Sec.
Xxxxx-Xxxx Rd., Lungtan County, Xxxxxxx Xxxxx 000, Xxxxxx, X.X.X. (the
"Borrower"), the Agent and the Banks as lenders and such other parties named
therein.
In consideration of the Banks' and the Agent's entering into the Loan Agreement
and agreeing to advance the loans to the Borrower, the Guarantor hereby, to the
greatest extent permitted by applicable law, agrees and undertakes as follows:
1. GUARANTEE. (a) Obligations. The Guarantor hereby irrevocably, absolutely and
unconditionally, jointly and severally with the Borrower, as a primary obligor
and not merely as a surety, guarantees the due, punctual and full payment of all
indebtedness and obligations of the Borrower under the Loan Agreement, whether
for principal, interest, fees or otherwise, including, without limitation, all
costs and expenses of enforcement or preservation of the rights of the Banks
under or pursuant to the Loan Agreement when an Event of Default (as defined in
the Loan Agreement) has
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occurred and is continuing (for purposes of this Guarantee, the "Obligations").
(b) Payment. In the event of non-payment by the Borrower of any of the
Obligations when due, whether by acceleration or otherwise, the Guarantor shall,
immediately on demand, pay the same to the Agent (for the account of the Banks)
in New Taiwan Dollars ("Payment Currency"), in immediately available funds, to
the account of the Bank (account No.107118509008) with Chinatrust Commercial
Bank, Ltd. in Taipei, Taiwan, R.O.C. or to such other account and/or in such
other place as the Bank may designate with notification to the
Guarantor("Payment Place"), together with interest thereon from the date of
demand to the date of actual payment thereof at the default interest rate as
specified in the Loan Agreement, free and clean of and without set-off or
deduction for taxes or otherwise. A certificate from the Agent as to the amount
of any of the Obligations due and unpaid and as to the applicable interest rate,
in the absence of manifest error, shall be conclusive as against the Guarantor
and the Banks.
(c) Taxes. Any and all payments to be made by the Guarantor to the Agent
with respect to the Obligations shall be made free and clear of, and without
deduction for, any present or future taxes or charges, whenever imposed by
withholding or otherwise, all of which taxes, deductions or charges (if any)
shall be borne and paid by the Guarantor. If the Guarantor shall be required by
law to make any such deduction from any payment hereunder, (i) the sum payable
shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this section) the Agent receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Guarantor shall make such
deductions and (iii) the Guarantor shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law.
(d) Payment Currency. The Guarantor acknowledges that the Obligations shall
be paid in the Payment Currency (New Taiwan Dollars) and may not be discharged
by an amount paid in currency other than the Payment Currency or in any place
other than the Payment Place, whether pursuant to a judgment or otherwise, to
the extent that the amount so paid on prompt conversion to the Payment Currency
and transfer to the Payment Place, under normal banking procedures, does not
yield the amount of the Payment Currency due in the Payment Place. In the event
that any payment, whether pursuant to a judgment or otherwise, upon such
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conversion and transfer, does not result in payment of such amount of the
Payment Currency to the Payment Place, the Agent shall be entitled to demand
immediate payment of, and shall have a separate cause of action for, the
deficiency in respect of the payments due. The Guarantor agrees that it shall
pay the sum due in the Payment Currency and, to the extent applicable, shall be
solely responsible to obtain all required foreign exchange or other approvals
required for the making of such payment. Failure by the Guarantor to obtain any
such approval shall not relieve the Guarantor from its obligations to make such
payment in New Taiwan Dollars. In the event the Guarantor places any other
currency with the Agent for purposes of payment hereunder, such placement shall
not constitute payment for purposes of calculation of interest or otherwise
unless and until the sum so deposited is converted to New Taiwan Dollars and the
Guarantor shall bear all risk of currency fluctuation between the time of
placement and time of actual conversion and remittance thereof.
(e) Application of Payments. Notwithstanding anything herein to the
contrary, payments by the Guarantor hereunder shall be applied to Obligations
and other sums payable hereunder in such order of priority as specified in the
Loan Agreement.
2. REPRESENTATIONS AND WARRANTIES. The Guarantor hereby represents and warrants
to the Agent and the Banks that:
(a) Corporation/Authorities. (i) The Guarantor has full powers and
authorities to own its properties, to carry on its business as now being
conducted, and to execute, deliver and perform all of its obligations under this
Guarantee; (ii) the Guarantor is duly authorized to issue this Guarantee and has
taken all appropriate and necessary corporate actions to authorize the
execution, delivery and performance of this Guarantee; (iii) this Guarantee
constitutes the legal, valid and binding obligations of the Guarantor
enforceable against the Guarantor in accordance with the terms hereof; or (iv)
the execution, delivery and performance by the Guarantor of this Guarantee will
not violate any of its incorporation documents or any provision of law,
regulation, order, judgment, decree or award applicable to the Guarantor and
will not result in a breach of, or constitute a default under, any material
agreement to which the Guarantor is a party or by which it or any of its
property may be bound and does not require any shareholders approval or any
approval or consent of any
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trustee or holder of any indebtedness or obligations of the Guarantor.
(b) Litigation. Except for those disclosed in the public filings made by
the Guarantor in accordance with applicable laws and regulations and
specifically delivered to the Agent prior to the date hereof (the "Public
Filings"), as of the date hereof, there are no actions, suits or proceedings
pending or threatened against the Guarantor or its properties before any court
or government agency which, if determined adversely to the Guarantor, would be
reasonably expected to have a material adverse effect on the Guarantor's
financial condition, properties or operations.
(c) Ranking of Credit. The Guarantor's obligations hereunder rank at least
pari passu in priority of payment and otherwise with all unsecured and
unsubordinated indebtedness of the Guarantor except for statutory liens arising
by operation of law in the ordinary course of business or those disclosed in the
Public Filings.
(d) Other Obligations. The Guarantor is not in default under any agreement
to which it is a party or by which it may be bound, a default in respect of
which would reasonably be expected to have a material adverse effect on the
Guarantor's financial condition or operations or its ability to perform its
obligations hereunder. As of the date hereof, no Event of Default (as defined
under the Loan Agreement) has occurred.
(e) No Material Adverse Change. The audited financial statements of the
Guarantor as at and for the period ended December 31, 2004, and the unaudited
financial statements of the Guarantor as at and for the period ended September
30, 2005, copies of which have been delivered to the Agent, are complete and
correct in all material respects, have been prepared in accordance with U.S.
generally accepted accounting principles, and fairly present the financial
condition and the results of operations of the Guarantor as of such date, and
since the date of such financial statements, there has been no material adverse
change in the financial condition or results of operations of the Guarantor,
except for those which have been disclosed in writing to the Agent (if any).
(f) Reliance. No representation or warranty made by the Guarantor in or in
connection with this Guarantee or any
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statement in any document delivered to the Agent in connection with this
Guarantee contains any untrue statement of material fact or omits any material
fact necessary to make such representation, warranty or document not misleading,
nor is any fact known to the Guarantor which may affect in a materially adverse
manner the Guarantor's ability to conduct its business substantially as
conducted on the date of this Guarantee. The foregoing representations and
warranties are deemed to be made by the Guarantor by reference to the facts and
circumstances then existing on the date on which the Borrower requests a drawing
of the Loan ; provided, that for the purposes of Clause 2(d) the references to
financial statements shall be read as references to its latest financial
statements delivered to the Agent pursuant to Clause 3(e) hereof. The Guarantor
acknowledges that the Agent and the Banks entered into the Loan Agreement in
reliance upon this Guarantee and the representations and warranties contained
herein.
3. COVENANTS. The Guarantor hereby unconditionally undertakes and covenants to
the Agent that so long as any Obligations remain outstanding, it shall act as
follows and carry out the following obligations:
(a) Existence. The Guarantor shall (i) maintain its corporate existence and
all licenses necessary for the conduct of its business and operations or the
ownership of its properties; (ii) comply with the requirements of all applicable
laws, regulations, requirements and orders of all governmental authorities
having jurisdiction over it, except where the failure to comply would not have
adverse effects on the business or financial condition of the Guarantor; (iii)
keep and maintain proper books and records; and (iv) pay and discharge all
taxes, assessments and governmental charges or levies imposed upon it or its
income, profits or properties, prior to the date on which penalties attach
thereto, and all lawful claims which, if unpaid, might become a lien, charge or
encumbrance upon any of its properties, except for those where contested in good
faith and adequate reserves therefore have been established in conformity with
U.S. generally accepted accounting principles.
(b) Negative Covenants. The Guarantor shall not, without the prior written
consent of the Agent(for and on behalf of the Banks):(i) change its business
nature or (ii)enter into any merger or consolidation or divide-up unless (A) the
Guarantor is the surviving entity of such a merger or consolidation and (B)such
a merger or
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consolidation does not adversely affect or impair the overall financial
condition of the Guarantor or the Guarantor's ability to perform its obligations
hereunder.
(c) Representations and Warranties. The Guarantor shall ensure that the
representations and warranties contained in this Guarantee shall remain true and
correct at all times and, except for those expressly otherwise provided for
herein, the representations and warranties made by the Guarantor under Article 2
hereof shall be deemed repeated on each Interest Payment Date (as defined in the
Loan Agreement).
(d) Shareholding. From time to time and at all times throughout the terms
of the Loan Agreement and this Guarantee, the Guarantor (i)shall beneficially
own, directly and/or indirectly through its subsidiaries and/or affiliates, no
less than 96.3% of the total issued and outstanding shares of the Borrower and
(ii) shall maintain an effective management control over the Borrower.
(e) Financial Statements. (i) Semi-Annual Statements. Throughout the term
hereof, within ninety (90) days after the end of each fiscal half-year of the
Guarantor, the Guarantor shall provide the Agent (for distribution to the Banks)
with copies of the Guarantor's year-to-date unaudited balance sheet (including
footnotes) for such half-year, including therein its balance sheet as of the end
of such fiscal half-year and statement of its income. Each of such unaudited
statements shall be prepared on a consolidated) basis, and the information
contained therein shall be presented in accordance with U.S. generally accepted
accounting principles consistently applied.
(ii) Annual Statements. Throughout the term hereof, within one hundred and
twenty (120) days after the end of each fiscal year of the Guarantor, the
Guarantor shall provide the Agent(for distribution to the Banks) with copies of
the Guarantor's annual audited report (including footnotes) for such year,
including therein its balance sheet as of the end of such fiscal year and
statement of its income and statement of changes in shareholders' equity. Each
of such audited reports shall be prepared on a consolidated basis and certified
by a creditable independent public accounting firm in accordance with U.S.
generally accepted audit standards and the information contained therein shall
be presented in accordance with U.S. generally accepted accounting principles
consistently applied.
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(iii) Other Information. The Guarantor shall provide the Agent(for
distribution to the Banks) with such other information concerning the financial
condition, operations and assets of the Guarantor (to the extent it shall be
available to the public in accordance with applicable laws or regulations or is
in public domain)as the Agent may, from time to time, reasonably request. The
Guarantor shall ensure that all such information provided by the Guarantor to
the Agent shall be true and correct in all material aspects.
(f) Other Documents. The Guarantor shall execute all such other documents
and instruments, including negotiable instruments, and do all such other acts
and things as the Agent reasonably deems necessary or appropriate to carry out
the intent hereof.
4. WAIVERS. The Guarantor hereby waives (i) diligence, presentment, demand,
protest and notice of any kind, (ii) any right of beneficium ordinis, and (iii)
any requirement that the Agent , any Bank, its assignees or its endorsees
exhaust any right to take any action against the Borrower, its properties or any
security, guarantee or support provided to the Agent or any Bank with respect to
the Obligations.
5. CONSENT. The Guarantor hereby consents (i) to any extension of time of
payment of any Obligations and any other indulgence which may be granted to the
Borrower by the Agent or any Bank; (ii) to any modification or amendment of the
terms or conditions of the Loan Agreement or any other agreement or document
related thereto agreed by the Borrower; and (iii) to any release, modification
or replacement of any security, guarantee or support provided for the
Obligations.
6. NON-DISCHARGE. Except for the Guarantor's payment of the Obligations in full
as provided for herein, to the greatest extent permitted by the applicable laws
and regulations, the Guarantor's obligations hereunder shall not be discharged
or affected by any circumstances which might constitute a discharge or defense
(including, without limitation, the bankruptcy, composition or reorganization of
the Borrower) or the illegality, invalidity, unenforceability, or any defect in
the Obligations. The
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intention of the Guarantor being that this Guarantee is absolute and
unconditional in all circumstance.
7. AVOIDANCE OF PAYMENTS. The Guarantor shall on demand indemnify the Agent or
any Bank against any funding or other cost, loss, expense or liability
(including loss of margin) sustained or incurred by the Agent or any Bank as a
result of it being required for any reason (including any bankruptcy,
insolvency, winding-up or similar law of any jurisdiction) to refund all or part
of any amount received or recovered by it in respect of any part of the
Obligations payable by the Borrower or the Guarantor and shall in any event pay
to the Agent or such Bank on demand the amount so refunded by it.
8. INDEMNITY. As separate, independent and alternative stipulations, the
Guarantor hereby unconditionally and irrevocably agrees that any Obligation is
for any reason (whether or not now existing and whether or not now known or
becoming known to any party to the Loan Agreement) not recoverable from the
Borrower, shall nevertheless be recoverable from the Guarantor as if it was the
sole principal debtor and shall be paid by it to the Agent( for account of the
Banks) on demand.
9. SUBROGATION. Until all of the Obligations shall have been paid in full, the
Guarantor shall not take any action which would prevent or interfere with the
performance by the Borrower of any of the Obligations and, regardless of any
payment by the Guarantor hereunder, any claims of the Guarantor against the
Borrower shall not be subrogated to the claims of the Agent and the Banks; nor
shall any lien or other security for or on account of the granting of this
Guarantee become enforceable by the Guarantor until the Obligations have been
paid in full.
10. SET-OFF. In addition to and not limited by such other rights as the Agent
and the Banks may have, each of the Agent and the Banks is hereby authorized at
any time and from time to time, to set-off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by the Agent or any Bank to or for the
credit or the account of the Guarantor ("Bank Obligations") against any and all
of the obligations of the Guarantor then due and payable under this Guarantee
irrespective of whether or not the currency thereof is the same and whether or
not the Agent or any Bank shall have made any demand under this Guarantee
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and although the Bank Obligations may be unmatured (the Bank Obligations shall
be deemed to have matured upon any such set-off). With respect to deposits with
a Bank, such Bank is authorized to terminate and withdraw such deposits, for and
on behalf of the Guarantor, after occurrence of an Event of Default (as defined
in the Loan Agreement), without regard to the original maturity thereof. Each
Bank agrees promptly to notify the Guarantor upon any such set-off and
application; provided, that the failure to give such notice shall not affect the
validity of such set-off and application.
11. ENFORCEMENT COSTS. The Guarantor shall pay to the Agent (for account of the
Banks), on demand, any and all costs and expenses (including without limitation
attorneys fees) incurred by the Agent (for account of the Banks) in the
implementation, preservation and enforcement of any and all of the Banks' rights
and interests under this Guarantee including, without limitation, the costs and
expenses arising from participation in any bankruptcy, reorganization or like
proceedings, together with interest on such sums calculated at the default
interest rate applicable to the Obligations.
12. ASSIGNMENT. This Guarantee shall be binding upon the Guarantor and its
assigns and/or successors and shall inure to the benefit of the Agent, the Banks
and their respective successors and assigns. Each of the Agent and the Banks
may, with the notice to but without the consent of the Guarantor, transfer or
assign this Guarantee, in whole or in part, to any person or entity holding or
acquiring any interest in the Obligations. The Guarantor may not assign or
otherwise transfer its rights or obligations hereunder without the prior written
consent of the Agent and all of the Banks.
13. AMENDMENT. This Guarantee shall not be amended or modified except by written
instrument duly signed by the Agent (on and on behalf of the Banks) and the
Guarantor.
14. CONTINUING GUARANTEE. This Guarantee is a continuing guarantee for any and
all Obligations and may not in any way be withdrawn, terminated, cancelled or
replaced without the prior written consent of the Agent (for and on behalf of
the Banks).
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15. NOTICES. Any communication, demand or notice to the Guarantor shall be
deemed duly and properly made or given if made or given in writing delivered by
hand or mailed by ordinary registered mail to the Guarantor at the address
indicated after the Guarantor's signature hereon below or at such other address
as the Guarantor may designate by notice to the Agent in writing. Any notice to
the Agent shall be made in writing and delivered to the address of the Agent as
set out below. Notices to the Bank shall be effective only upon the Agent's
actual receipt thereof.
16. CUMULATIVE RIGHTS. The rights and remedies of the Agent under this Guarantee
shall be in addition to, and not exclusive of, any rights or remedies which the
Agent has under the law or any other agreement or instrument.
17. NON-WAIVER. Any failure or delay on the part of any party hereto to insist
on performance of any provision, right, power or remedy hereof shall not
constitute a waiver thereof or of any other provision herein contained. Any
waiver of any provisions hereof by the Agent shall be valid only if made in
writing and shall be strictly limited to the extent expressly stated therein and
shall not constitute a waiver of any other provision hereof.
18. GOVERNING LAW; JURISDICTION. (a) Governing Law. This Guarantee shall be
governed by, and construed in accordance with, the laws of the State of New
York, U.S.A. (excluding the conflict of law provisions thereof).
(b) Jurisdiction. The Guarantor hereby irrevocably consents that any legal
action or proceeding against the Guarantor or any of its properties or assets
with respect to any of the obligations arising under or relating to this
Guarantee may be brought in the Supreme Court of State of New York, County of
New York, and/or in the United States District Court for the Southern District
of New York, and/or the Taipei District Court in Taipei, Taiwan, R.O.C., as the
Agent may elect, and the Guarantor hereby waives any objection, including
without limitation, any objection to the laying of venue or any objection based
upon the grounds of forum non conveniens, which it may now or hereafter have to
the bringing of any action
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or proceeding in any such court. The foregoing, however, shall not limit the
rights of the Agent and each Bank to bring any legal action or proceeding or to
obtain execution of judgment in any other jurisdiction or court.
(c) Process Agent. The Guarantor agrees that the process by which any suit,
action or proceeding is begun may be served on it by being delivered in
connection with any suit, action or proceeding in New York, U.S.A. to CT
Corporation System presently located at 0000 Xxxxxxxx, Xxx Xxxx Xxx Xxxx 00000,
X.X.X. as the Guarantor's agent for service of process ("Process Agent") for the
service of process in the State of New York and agrees and consents that process
in any suit, action or proceeding may be served on it by delivering the same to
the Process Agent, at such address or at such other address in the City, County
and State of New York at which the Process Agent is then located. Nothing in
this sub-Section shall affect the right of the Agent or the Banks to serve legal
process in any other manner or in any other jurisdiction permitted by law.
(d) Waiver. The parties hereto waive any rights they may have to jury
trial.
19. LANGUAGE AND HEADINGS. This Guarantee and all notices, demands, requests,
statements or other communication to be made or given by the Guarantor hereunder
shall be in the English language only. Any documents required to be delivered
pursuant to this Guarantee which are not in the English language shall, if
required by the Bank, be accompanied by a certified (by the Guarantor) English
language translation thereof and in the event of any conflict between the
original of any document and the English language translation thereof, the
English language translation shall, to the greatest extent permitted by
applicable laws and regulations, prevail. The headings in this Guarantee are for
convenience of reference only and shall not affect the construction hereof.
20. SEVERABILITY. If any one or more of the provisions contained in this
Guarantee is or shall become invalid, illegal or unenforceable in any respect
under any applicable law, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
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THE GUARANTOR:
AMKOR TECHNOLOGY, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
ADDRESS FOR NOTICES:
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx, 00000,
X.X.X.
TEL:(000)000-0000
Witness:
By: /s/ Xxxxxx Xxxxxxx
------------------
ACCEPTED
THE AGENT:
CHINATRUST COMMERCIAL BANK, LTD.
By: /s/ Authorized Signatory
-------------------------
Name:
Title:
ADDRESS FOR NOTICES:
7F No.3 Sung-Shou Rd.
Taipei Taiwan R.O.C.
TEL: 0000-0000
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