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Exhibit 4.3
CONFORMED COPY
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MARCH 30, 2001
AMONG
AMKOR TECHNOLOGY, INC.
AS BORROWER
AND
THE INITIAL LENDERS AND INITIAL ISSUING BANKS
NAMED HEREIN
AS INITIAL LENDERS AND INITIAL ISSUING BANKS
AND
XXXXXXX XXXXX XXXXXX INC.
AS SOLE BOOK MANAGER
AND
CITICORP USA, INC.
AS ADMINISTRATIVE AGENT AND AS COLLATERAL AGENT
AND
DEUTSCHE BANC ALEX. XXXXX INC.
AS SYNDICATION AGENT
AND
XXXXXXX XXXXX DEUTSCHE BANC
BARNEY INC. ALEX. XXXXX INC.
AS ARRANGERS
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AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT dated as of March 30,
2001 (as amended, supplemented or otherwise modified from time to time, this
"Agreement") among AMKOR TECHNOLOGY, INC., a Delaware corporation (the
"Borrower"), the banks, financial institutions and other institutional lenders
listed on the signature pages hereof as the Lenders as of the date hereof (the
"Initial Lenders"), the banks listed on the signature pages hereof as the
Issuing Banks as of the date hereof (the "Initial Issuing Banks"), XXXXXXX XXXXX
BARNEY INC. ("SSBI") as sole book manager (the "Book Manager"), CITICORP USA,
INC. ("CUSA"), as administrative agent (together with any successor
administrative agent appointed pursuant to Article VII, the "Administrative
Agent") for the Lender Parties (as hereinafter defined) and as collateral agent
(together with any successor collateral agent appointed pursuant to Article VII,
the "Collateral Agent"), DEUTSCHE BANC ALEX. XXXXX INC. ("DBAB"), as syndication
agent (the "Syndication Agent"; together with the Administrative Agent and the
Collateral Agent, the "Agents"), and SSBI and DBAB, as arrangers (the
"Arrangers"), amends and restates in its entirety the Existing Credit Agreement
(as defined below).
PRELIMINARY STATEMENTS:
WHEREAS, the Borrower is a party to a Credit Agreement dated as
of April 28, 2000 (as amended through the date hereof, the "Existing Credit
Agreement") among the Borrower, the Initial Lenders, the Initial Issuing Banks,
the SSBI, as book manager, Societe Generale ("SG"), as administrative agent (the
"Existing Administrative Agent") and collateral agent (the "Existing Collateral
Agent"), SSBI and SG, as syndication agents, SSBI, XX Xxxxx Securities
Corporation and DBAB, as arrangers, and DBAB, as documentation agent;
WHEREAS, on Xxxxxxxx 00, 0000 XX resigned as Existing
Administrative Agent and Existing Collateral Agent as to all of the Facilities
pursuant to Section 7.06 of the Existing Credit Agreement;
WHEREAS, the Existing Administrative Agent, the Existing
Collateral Agent, the Administrative Agent and the Collateral Agent have
concurrently herewith (but prior to the effectiveness of this Agreement) entered
into the Assignment and Release Agreement dated the date hereof (the "Assignment
and Release Agreement") pursuant to which (i) the resignation by SG of its
duties as Existing Administrative Agent and Existing Collateral Agent are
confirmed, (ii) the Existing Administrative Agent and the Existing Collateral
Agent have assigned all their respective rights, title and interest in, to and
under the Existing Credit Agreement and the Loan Documents (as defined in the
Existing Credit Agreement) and delegated all of their respective obligations
thereunder and with respect thereto to the Administrative Agent or the
Collateral Agent, as applicable, and (iii) CUSA, as the successor Administrative
Agent and Collateral Agent has accepted such assignment and delegation;
WHEREAS, on February 20, 2001 the Borrower issued $500,000,000 of
9.25% senior notes due 2008 (the "Senior Notes (2001)"), the Net Cash Proceeds
of which were applied by the Borrower in prepayment of certain of the Advances
under the Existing Credit Agreement (including the repayment in full of the Term
A Advances) and for its general corporate and working capital purposes;
WHEREAS, the Borrower has requested that the Lender Parties amend
and restate the Existing Credit Agreement on the terms set forth in this
Agreement, which Agreement shall become effective upon satisfaction of certain
conditions precedent set forth herein;
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WHEREAS, it is the intent of the parties hereto that this
Agreement not constitute a novation of the obligations and liabilities existing
under the Existing Credit Agreement or evidence payment of all or any of such
obligations and liabilities (other than the repayment in full of the Term A
Advances referred to above), that this Agreement amend and restate in its
entirety the Existing Credit Agreement, and that from and after the Effective
Date the Existing Credit Agreement be of no further force or effect except as to
evidence the incurrence of the "Obligations" thereunder and the representations
and warranties made thereunder;
NOW, THEREFORE, in consideration of the above premises, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Acquisition Agreement" means the asset purchase agreement dated
as of January 14, 2000 between AT Korea and Anam.
"Administrative Agent" has the meaning specified in the recital
of parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent with Citibank at its
office in New York, New York, ABA No. 000-0000-00, Account No. 00000000,
Attention: Xxxxx Xxxxx.
"Advance" means a Term B Advance, a Revolving Credit Advance or a
Letter of Credit Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 10% or more of the Voting
Interests of such Person or to direct or cause the direction of the management
and policies of such Person, whether through the ownership of Voting Interests,
by contract or otherwise.
"Affiliate Restricted Investment Amount" means, at any time
(without duplication) an amount equal to (a) the sum of (i) the amount of all
cash Investments of the Borrower and its Restricted Subsidiaries, or which any
of the Borrower and its Restricted Subsidiaries has assumed a legally binding
commitment to make, on or after the Effective Date, in, (ii) the aggregate
outstanding amount of all Contingent Obligations (including Contingent
Obligations and reimbursement obligations in respect of letters of credit) of
the Borrower and its Restricted Subsidiaries at such time in respect of
obligations of, and (iii) (to the extent contributed, sold or otherwise
transferred at less than its Fair Market Value, or, if leased) the Fair Market
Value of all assets (other than cash) of the Borrower and its Restricted
Subsidiaries contributed, sold or otherwise transferred or leased on or after
the Effective Date to, any Non Wholly-Owned Affiliate, minus (b) (subject to any
adjustment required pursuant to clause (i)(y)(B) of the definition of Maximum
Restricted Investment Amount) the sum of any cash
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dividends, cash distributions or other return of capital or cash repayments of
Debt owing to, or rental and other cash payments pursuant to any lease of assets
granted by, the Borrower or any Wholly-Owned Restricted Subsidiary (but not
intercompany loans to the Borrower or any Wholly-Owned Restricted Subsidiary)
received after the Effective Date by the Borrower or any Wholly-Owned Restricted
Subsidiary (in each case) in respect of any Investments made by them in any Non
Wholly-Owned Affiliate.
"Agents" has the meaning specified in the recital of parties to
this Agreement.
"Agreement Value" means, for each Hedge Agreement, on any date of
determination, an amount determined by the Administrative Agent equal to: (a) in
the case of a Hedge Agreement documented pursuant to the Master Agreement
(Multicurrency-Cross Border) published by the International Swap and Derivatives
Association, Inc. (the "Master Agreement"), the amount, if any, that would be
payable by any Loan Party or any of its Subsidiaries to its counterparty to such
Hedge Agreement, as if (i) such Hedge Agreement was being terminated early on
such date of determination, (ii) such Loan Party or Subsidiary was the sole
"Affected Party", and (iii) the Administrative Agent was the sole party
determining such payment amount (with the Administrative Agent making such
determination pursuant to the provisions of the form of Master Agreement); or
(b) in the case of a Hedge Agreement traded on an exchange, the xxxx-to-market
value of such Hedge Agreement, which will be the unrealized loss on such Hedge
Agreement to the Loan Party or Subsidiary of a Loan Party party to such Hedge
Agreement determined by the Administrative Agent based on the settlement price
of such Hedge Agreement on such date of determination, or (c) in all other
cases, the xxxx-to-market value of such Hedge Agreement, which will be the
unrealized loss on such Hedge Agreement to the Loan Party or Subsidiary of a
Loan Party party to such Hedge Agreement determined by the Administrative Agent
as the amount, if any, by which (i) the present value of the future cash flows
to be paid by such Loan Party or Subsidiary exceeds (ii) the present value of
the future cash flows to be received by such Loan Party or Subsidiary pursuant
to such Hedge Agreement; capitalized terms used and not otherwise defined in
this definition shall have the respective meanings set forth in the above
described Master Agreement.
"Anam" means Anam Semiconductor, Inc., a Korean coproation.
"Applicable Lending Office" means, with respect to each Lender
Party, such Lender Party's Domestic Lending Office in the case of a Base Rate
Advance and such Lender Party's Eurodollar Lending Office in the case of a
Eurodollar Rate Advance.
"Applicable Margin" means (a) with respect to the Term B
Facility, 3.00% per annum in the case of Eurodollar Rate Advances, and 2.00% per
annum in the case of Base Rate Advances and (b) with respect to the Revolving
Credit Facility, (i) for the period from the Initial Closing Date to the
six-month anniversary of the Initial Closing Date, 2.75% per annum in the case
of Eurodollar Rate Advances, and 1.75% per annum in the case of Base Rate
Advances, and (ii) thereafter, a percentage per annum determined by reference to
the Leverage Ratio as set forth below:
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BASE RATE EURODOLLAR
LEVERAGE RATIO ADVANCES RATE ADVANCES
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Level I
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less than or equal to 1.25:1.0 1.00% 2.00%
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Level II
--------
greater than 1.25:1.0 and less than or equal to
1.75:1.0 1.25% 2.25%
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Level III
---------
greater than 1.75:1.0 and less than or equal to
2.25:1.0 1.50% 2.50%
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Level IV
--------
greater than 2.25:1.0 1.75% 2.75%
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For the purposes of this clause (b)(ii), the Applicable Margin for each Base
Rate Advance shall be determined by reference to the Leverage Ratio in effect
from time to time and the Applicable Margin for each Eurodollar Rate Advance
shall be determined by reference to the Leverage Ratio in effect on the first
day of each Interest Period for such Advance; provided, however, that (A) no
change in the Applicable Margin shall be effective until three Business Days
after the date on which the Administrative Agent receives the financial
statements required to be delivered pursuant to Section 5.3(b) or (c), as the
case may be, and a certificate of the Chief Financial Officer of the Borrower
demonstrating such Leverage Ratio, (B) the Applicable Margin shall be at Level
IV for so long as the Borrower has not submitted to the Administrative Agent the
information described in clause (A) of this proviso as and when required under
Section 5.3(b) or (c), as the case may be and (C) the Applicable Margin shall be
at Level IV in the event a Default has occurred and is continuing.
"Application Date" has the meaning specified in Section
2.6(b)(vi).
"Appropriate Lender" means, at any time, with respect to (a) any
of the Facilities, a Lender that has a Commitment with respect to such Facility
at such time and (b) the Letter of Credit Facility, (i) any Issuing Bank and
(ii) if the other Revolving Credit Lenders have made Letter of Credit Advances
pursuant to Section 2.3(c) that are outstanding at such time, each such other
Revolving Credit Lender.
"Approved Fund" means, with respect to any Lender that is a fund
that invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Arrangers" has the meaning specified in the recital of parties
to this Agreement.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender Party and an Eligible Assignee, and accepted by the
Administrative Agent, in accordance with Section 8.7 and in substantially the
form of Exhibit C hereto.
"Assignment and Release Agreement" has the meaning specified in
the preliminary statements to this Agreement.
"Assuming Lender" has the meaning specified in Section 2.17(d).
"Assumption Agreement" has the meaning specified in Section
2.17(d)(ii).
"AT Korea" means Amkor Technology Korea, Inc., an indirect
Wholly-Owned Subsidiary of the Borrower.
"AT Korea Bonds" means $385,000,000 of bonds issued by AT Korea
to the Borrower on May 11, 1999 and $625,000,000 of bonds issued by AT Korea to
the Borrower on May 2, 2000.
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"Available Amount" of any Letter of Credit means, at any time,
the maximum amount available to be drawn under such Letter of Credit at such
time (assuming compliance at such time with all conditions to drawing).
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest announced publicly by Citibank in
New York, New York, from time to time, as Citibank's base rate; and
(b) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.7(a)(i).
"Board of Directors" means the Board of Directors of the Borrower
or any duly authorized committee of the Board of Directors.
"Book Manager" has the meaning specified in the recital of
parties to this Agreement.
"Borrower" has the meaning specified in the recital of parties to
this Agreement.
"Borrower's Account" means the account of the Borrower maintained
by the Borrower with Citibank in New York, New York, ABA No. 000000000, Account
No. 00000000.
"Borrowing" means a Term B Borrowing or a Revolving Credit
Borrowing.
"Borrowing Base Certificate" means a certificate in substantially
the form of Exhibit D hereto, duly certified by the chief financial officer of
the Borrower.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings are
carried on in the London interbank market.
"Capital Expenditures" means, for any Person for any period, the
sum of, without duplication, (a) all expenditures made, directly or indirectly,
by such Person or any of its Subsidiaries during such period for equipment,
fixed assets, real property or improvements, or for replacements or
substitutions therefor or additions thereto, that have been or should be, in
accordance with GAAP, reflected as additions to property, plant or equipment on
a Consolidated balance sheet of such Person or have a useful life of more than
one year plus (b) the aggregate principal amount of all Debt (including
Obligations under Capitalized Leases) assumed or incurred in connection with any
such expenditures.
"Capitalized Leases" means all leases that have been or should
be, in accordance with GAAP, recorded as capitalized leases.
"Cash Equivalents" means any of the following, to the extent
owned by the Borrower or any of its Subsidiaries free and clear of all Liens
other than Liens created under the Collateral Documents and Permitted Liens and
having a maturity of not greater than 180 days from the date of issuance
thereof: (a) readily marketable direct obligations of the Government of the
United States or any agency or instrumentality thereof or obligations
unconditionally
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guaranteed by the full faith and credit of the Government of the United States,
(b) insured certificates of deposit of or time deposits with any commercial bank
that is a Lender Party or a member of the Federal Reserve System, issues (or the
parent of which issues) commercial paper rated as described in clause (c) below,
is organized under the laws of the United States or any State thereof and has
combined capital and surplus of at least $1 billion, (c) commercial paper
maturing no more than 12 months from the date of creation thereof and having at
the time of acquisition thereof, a rating of at least "Prime-1" (or the then
equivalent grade) from Xxxxx'x Investors Service, Inc. ("Moody's") or "A-1" (or
the then equivalent grade) from Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc. ("Standard & Poor's") or (d) Investments, classified in
accordance with GAAP as Current Assets of the Borrower or any of its
Subsidiaries, in money market investment programs registered under the
Investment Company Act of 1940, which are administered by financial institutions
that have the highest rating obtainable from either Moody's or S&P, and the
portfolios of which are limited solely to Investments of the character, quality
and maturity described in clauses (a), (b) and (c) of this definition.
"Cayman Share Mortgage" means the Cayman law Share Mortgage in
respect of shares in Amkor International Holdings dated as of April 28, 2000, as
supplemented by a Guaranty and Security Confirmation dated as of the Effective
Date, between Guardian Assets, Inc. and the Collateral Agent.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the U.S.
Environmental Protection Agency.
"Change of Control" means the occurrence of any of the following:
(a) the first date during any consecutive two year period on which a majority of
the members of the board of directors of the Borrower are not Continuing
Directors; or (b) any Person or two or more Persons (other than the Existing
Stockholders) acting in concert shall have acquired by contract or otherwise, or
shall have entered into a contract or arrangement that, upon consummation, will
result in its or their acquisition of control over Voting Interests of the
Borrower (or other securities convertible into such Voting Interests)
representing 25% or more of the combined voting power of all Voting Interests of
the Borrower.
"Citibank" means Citibank, N.A., a national banking association.
"Collateral" means all "Collateral" referred to in the Collateral
Documents and all other property that is or is intended to be subject to any
Lien in favor of the Collateral Agent for the benefit of the Secured Parties.
"Collateral Agent" has the meaning specified in the recital of
parties to this Agreement.
"Collateral Documents" means the Security Agreement, the
Mortgages, the Cayman Share Mortgage, the Korean Collateral Documents, the
Guaranty and Security Confirmations and any other agreement that creates or
purports to create a Lien in favor of the Collateral Agent for the benefit of
the Secured Parties.
"Commitment" means a Term B Commitment, a Revolving Credit
Commitment or a Letter of Credit Commitment.
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"Commitment Date" has the meaning specified in Section 2.17(b).
"Commitment Increase" has the meaning specified in Section
2.17(a).
"Confidential Information" means information that any Loan Party
furnishes to any Agent or any Lender Party in a writing designated as
confidential, but does not include any such information that is or becomes
generally available to the public or that is or becomes available to such Agent
or such Lender Party from a source other than the Loan Parties.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Contingent Obligation" means, with respect to any Person, any
Obligation or arrangement of such Person to guarantee or intended to guarantee
any Debt, leases, dividends or other payment Obligations ("primary obligations")
of any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including (a) the direct or indirect guarantee, endorsement (other
than for collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of the Obligation
of a primary obligor, (b) the Obligation to make take-or-pay or similar
payments, if required, regardless of nonperformance by any other party or
parties to an agreement or (c) any Obligation of such Person, whether or not
contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or supply
funds (A) for the purchase or payment of any such primary obligation or (B) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) to purchase
property, assets, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the holder of such primary obligation against loss in respect thereof.
The amount of any Contingent Obligation shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of which
such Contingent Obligation is made (or, if less, the maximum amount of such
primary obligation for which such Person may be liable pursuant to the terms of
the instrument evidencing such Contingent Obligation) or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder), as determined by such
Person in good faith.
"Continuing Directors" means (i) members of the board of
directors on the Effective Date; and (ii) other Persons nominated or elected to
the board of directors with the approval of a majority of the Continuing
Directors who were members of the board of directors at the time of such
election or nomination.
"Conversion", "Convert" and "Converted" each refer to a
conversion of Advances of one Type into Advances of the other Type pursuant to
Section 2.9 or 2.10.
"Convertible Subordinated Notes (1998)" means the 53/4%
Convertible Subordinated Notes due 2003 issued pursuant to the Convertible
Subordinated Notes Indenture.
"Convertible Subordinated Notes (2000)" means the 5% Notes issued
pursuant to the 2000 Convertible Subordinated Notes Indenture.
"Convertible Subordinated Notes Indenture (1998)" means the
Indenture dated as of May 6, 1998 between the Borrower and State Street Bank and
Trust Company, as trustee, pursuant to which the Convertible Subordinated Notes
(1998) were issued.
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"Convertible Subordinated Notes Indenture (2000)" means the
Indenture dated as of March 22, 2000 between the Borrower and State Street Bank
and Trust Company, as trustee, pursuant to which the Convertible Subordinated
Notes (2000) were issued.
"Current Assets" of any Person means all assets of such Person
that would, in accordance with GAAP, be classified as current assets of a
company conducting a business the same as or similar to that of such Person,
after deducting adequate reserves in each case in which a reserve is proper in
accordance with GAAP.
"Current Liabilities" of any Person means (a) all Debt of such
Person that by its terms is payable on demand or matures within one year after
the date of determination (excluding any Debt renewable or extendible, at the
option of such Person, to a date more than one year from such date or arising
under a revolving credit or similar agreement that obligates the lender or
lenders to extend credit during a period of more than one year from such date),
(b) all amounts of Funded Debt of such Person required to be paid or prepaid
within one year after such date and (c) all other items (including taxes accrued
as estimated) that in accordance with GAAP would be classified as current
liabilities of such Person.
"CUSA" has the meaning specified in the recital of parties to
this Agreement.
"DBAB" has the meaning specified in the recital of parties to
this Agreement.
"Debt" of any Person means, without duplication for purposes of
calculating financial ratios, (a) all Obligations in respect of indebtedness of
such Person for borrowed money, (b) all Obligations of such Person for the
deferred purchase price of property or services, (c) all Obligations of such
Person evidenced by notes, bonds, debentures or other similar instruments, (d)
all Obligations of such Person created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such Person
(even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), (e) all Obligations of such Person as lessee under Capitalized
Leases, (f) all Obligations of such Person under acceptance, letter of credit or
similar facilities, (g) all Obligations of such Person to purchase, redeem,
retire, defease or otherwise make any payment in respect of any Equity Interests
in such Person or any other Person or any warrants, rights or options to acquire
such capital stock, valued, in the case of Redeemable Preferred Interests, at
the greater of its voluntary or involuntary liquidation preference plus accrued
and unpaid dividends, (h) all Obligations of such Person in respect of Hedge
Agreements, valued at the Agreement Value thereof, (i) all Contingent
Obligations of such Person and (j) all indebtedness and other payment
Obligations referred to in clauses (a) through (i) above of another Person
secured by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including
accounts and contract rights) owned by such Person to the extent of the value of
such property, even though such Person has not assumed or become liable for the
payment of such indebtedness or other payment Obligations. Notwithstanding the
foregoing, in no event shall the term "Debt" include (i) any lease properly
classified as an operating lease in accordance with GAAP (other than a
"synthetic lease" or a similar transaction in which the obligation is considered
Debt for Borrowed Money for tax purposes), (ii) any trade payable arising in the
ordinary course of business, provided that no material part of such account
payable is more than ninety (90) days past due (unless subject to a bona fide
dispute for which adequate reserves have been established), (iii) any
obligations under open purchase orders to acquire tangible personal property
entered into in the ordinary course of business and not yet due or payable, (iv)
any accrued expenses or (v) any income taxes not at the time delinquent.
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"Debt for Borrowed Money" of any Person means all items that, in
accordance with GAAP, would be classified as indebtedness on a Consolidated
balance sheet of such Person.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given or
time elapse or both.
"Defaulted Advance" means, with respect to any Lender Party at
any time, the portion of any Advance required to be made by such Lender Party to
the Borrower pursuant to Section 2.1 or 2.2 at or prior to such time which has
not been made by such Lender Party or by the Administrative Agent for the
account of such Lender Party pursuant to Section 2.2(d) as of such time. In the
event that a portion of a Defaulted Advance shall be deemed made pursuant to
Section 2.15(a), the remaining portion of such Defaulted Advance shall be
considered a Defaulted Advance originally required to be made pursuant to
Section 2.1 on the same date as the Defaulted Advance so deemed made in part.
"Defaulted AmounT" means, with respect to any Lender Party at any
time, any amount required to be paid by such Lender Party to any Agent or any
other Lender Party hereunder or under any other Loan Document at or prior to
such time which has not been so paid as of such time, including any amount
required to be paid by such Lender Party to (a) any Issuing Bank pursuant to
Section 2.3(c) to purchase a portion of a Letter of Credit Advance made by such
Issuing Bank, (b) the Administrative Agent pursuant to Section 2.2(d) to
reimburse the Administrative Agent for the amount of any Advance made by the
Administrative Agent for the account of such Lender Party, (c) any other Lender
Party pursuant to Section 2.13 to purchase any participation in Advances owing
to such other Lender Party and (d) any Agent or any Issuing Bank pursuant to
Section 7.5 to reimburse such Agent or such Issuing Bank for such Lender Party's
ratable share of any amount required to be paid by the Lender Parties to such
Agent or such Issuing Bank as provided therein. In the event that a portion of a
Defaulted Amount shall be deemed paid pursuant to Section 2.15(b), the remaining
portion of such Defaulted Amount shall be considered a Defaulted Amount
originally required to be paid hereunder or under any other Loan Document on the
same date as the Defaulted Amount so deemed paid in part.
"Defaulting Lender" means, at any time, any Lender Party that, at
such time, (a) owes a Defaulted Advance or a Defaulted Amount or (b) shall take
any action or be the subject of any action or proceeding of a type described in
Section 6.1(f).
"Domestic Lending Office" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Domestic Lending
Office" opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender Party, as the case may be, or
such other office of such Lender Party as such Lender Party may from time to
time specify to the Borrower and the Administrative Agent.
"Domestic Loan Parties" means the Borrower and the Subsidiary
Guarantors.
"Domestic Subsidiary" means any Subsidiary of the Borrower other
than a Foreign Subsidiary; provided that none of the Equity Interests of a
Domestic Subsidiary may be owned by a Foreign Subsidiary.
"EBITDA" means, for any period, the sum, determined on a
Consolidated basis, of (a) Net Income, (b) interest expense, (c) income tax
expense, (d) to the extent included in Consolidated Net Income, non-cash foreign
currency loss (or less any non-cash foreign currency gain), (e) to the extent
included in Net Income, non-cash equity in loss of Affiliates (or less any
non-cash equity in income of Affiliates), (f) depreciation expense and (g)
amortization expense,
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in each case of the Borrower and its Restricted Subsidiaries, determined in
accordance with GAAP for such period.
"Effective Date" has the meaning specified in Section 3.1.
"Eligible Assignee" means (a) with respect to any Facility (other
than the Letter of Credit Facility), (i) a Lender; (ii) an Affiliate of a
Lender; (iii) an Approved Fund and (iv) any other Person approved by the Agents
and, unless a Default has occurred and is continuing at the time any assignment
is effected pursuant to Section 8.7, the Borrower, such approval not to be
unreasonably withheld or delayed, and (b) with respect to the Letter of Credit
Facility, a commercial bank approved by each of the Agents and, unless a Default
has occurred and is continuing at the time any assignment is effected pursuant
to Section 8.7, the Borrower, such approval not to be unreasonably withheld or
delayed; provided, however, that neither any Loan Party nor any Affiliate of a
Loan Party shall qualify as an Eligible Assignee under this definition.
"Eligible Collateral" means, collectively, Eligible Inventory and
Eligible Receivables.
"Eligible Inventory" means the Inventory of the Domestic Loan
Parties (other than the classes of excluded Inventory set forth below). The
value of such Inventory shall be determined by the Administrative Agent in its
reasonable judgment taking into consideration, among other factors, the lowest
of its cost, its book value determined in accordance with GAAP and its
liquidation value. The Administrative Agent may consider any of the following
classes of Inventory not to be Eligible Inventory:
(a) Inventory located on leaseholds as to which the lessor
has not entered into a consent and agreement providing the Collateral
Agent with the right to receive notice of default, the right to
repossess such Inventory at any time and such other rights as may be
reasonably required by the Collateral Agent;
(b) Inventory that is obsolete, unusable or otherwise
unavailable for sale;
(c) Inventory with respect to which the representations and
warranties set forth in Section 9 of the Security Agreement applicable
to Inventory are not true and correct in all material respects;
(d) Inventory that fails to meet all standards imposed by any
governmental agency, or department or division thereof, having
regulatory authority over such Inventory or its use or sale;
(e) Inventory that is subject to any licensing, patent,
royalty, trademark, trade name or copyright agreement with any third
party from whom any Domestic Loan Party has received notice of a dispute
in respect of any such agreement to the extent of such dispute;
(f) Inventory that is not in the possession of or under the
sole control of the Domestic Loan Parties;
(g) Inventory consisting of work in progress; and
(h) Inventory in respect of which the Security Agreement,
after giving effect to the related filings of financing statements that
have then been made, if any, does not or
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has ceased to create a valid and perfected first priority lien or
security interest in favor of the Collateral Agent for the benefit of
the Secured Parties securing the Secured Obligations.
"Eligible Receivables" means the Receivables of the Domestic Loan
Parties other than the classes of excluded Receivables set forth below. The
value of such Receivables shall be determined by the Administrative Agent in its
reasonable judgment taking into consideration, among other factors, their book
value determined in accordance with GAAP. The Administrative Agent may consider
any of the following classes of Receivables not to be Eligible Receivables:
(a) Receivables that do not arise out of sales of goods or
rendering of services in the ordinary course of the business of the
Domestic Loan Parties;
(b) Receivables on terms other than those normal or customary
in the business of the Domestic Loan Parties;
(c) Receivables owing from any Person that is an Affiliate of
any Loan Party or any of its Subsidiaries;
(d) Receivables more than 120 days past original invoice date
or more than 90 days past the date due;
(e) Receivables owing from any Person from which an aggregate
amount of more than 20% of the Receivables owing is more than 90 days
past due;
(f) Receivables owing from any Person that (i) has disputed
liability for any Receivable owing from such Person or (ii) has
otherwise asserted any claim, demand or liability against any Loan Party
or any of its Subsidiaries, whether by action, suit, counterclaim or
otherwise;
(g) Receivables owing from any Person that shall take or be
the subject of any action or proceeding of a type described in Section
6.1(f);
(h) Receivables (i) owing from any Person that is also a
supplier to or creditor of any Domestic Loan Party unless such Person
has waived any right of set-off in a manner acceptable to the
Administrative Agent or (ii) representing any manufacturer's or
supplier's credits, discounts, incentive plans or similar arrangements
entitling the Borrower to discounts on future purchase therefrom;
(i) Receivables arising out of sales to account debtors
outside the United States unless such Receivables are (i) fully backed
by an irrevocable letter of credit on terms, and issued by a financial
institution, acceptable to the Administrative Agent and such irrevocable
letter of credit is in the possession of the Collateral Agent or the
Administrative Agent or (ii) owing from an account debtor that is a
foreign subsidiary or division of a Person organized and in good
standing under the laws of a jurisdiction within the United States;
(j) Receivables arising out of sales on a guaranteed sale,
sale-or-return, sale on approval or consignment basis or subject to any
right of return, set-off or charge-back;
(k) Receivables owing from an account debtor that is an
agency, department or instrumentality of the United States or any State
thereof unless the Borrower shall have
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satisfied the requirements of the Assignment of Claims Act of 1940, and
any similar State legislation and the Administrative Agent is satisfied
as to the absence of set-offs, counterclaims and other defenses on the
part of such account debtor;
(l) Receivables the full and timely payment of which the
Administrative Agent in its reasonable judgment believes to be doubtful;
and
(m) Receivables in respect of which the Security Agreement,
after giving effect to the related filings of financing statements that
have then been made, if any, does not or has ceased to create a valid
and perfected first priority lien or security interest in favor of the
Collateral Agent for the benefit of the Secured Parties securing the
Secured Obligations.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of liability or
potential liability, investigation, proceeding, consent order or consent
agreement relating in any way to any Environmental Law, any Environmental Permit
or Hazardous Material or arising from alleged injury or threat to health, safety
or the environment, including (a) by any governmental or regulatory authority
for enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any governmental or regulatory authority or third party for
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, writ, judgment,
injunction, decree or judicial or agency interpretation, policy or guidance
relating to pollution or protection of the environment, health, safety or
natural resources, including those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of Hazardous
Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental Law.
"Equity Interests" means, with respect to any Person, shares of
capital stock of (or other ownership or profit interests in) such Person,
warrants, options or other rights for the purchase or other acquisition from
such Person of shares of capital stock of (or other ownership or profit
interests in) such Person, securities convertible into or exchangeable for
shares of capital stock of (or other ownership or profit interests in) such
Person or warrants, rights or options for the purchase or other acquisition from
such Person of such shares (or such other interests), and other ownership or
profit interests in such Person (including partnership, member or trust
interests therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are authorized or otherwise
existing on any date of determination; provided, however, that the Convertible
Subordinated Notes (1998) or the Convertible Subordinated Notes (2000) shall not
be Equity Interests prior to conversion of such notes.
"ERISA" means the Employee Retirement Income Security Act of 1974
and the regulations promulgated and rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV
of ERISA is a member of the controlled group of any Loan Party, or under common
control with any Loan Party, within the meaning of Section 414 of the Internal
Revenue Code.
"ERISA Event" means (a)(i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan unless the
30-day notice
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requirement with respect to such event has been waived by the PBGC or (ii) the
requirements of Section 4043(b) of ERISA apply with respect to a contributing
sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event
described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA
is reasonably expected to occur with respect to such Plan within the following
30 days; (b) the application for a minimum funding waiver with respect to a
Plan; (c) the provision by the administrator of any Plan of a notice of intent
to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any
such notice with respect to a plan amendment referred to in Section 4041(e) of
ERISA); (d) the cessation of operations at a facility of any Loan Party or any
ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e)
the withdrawal by any Loan Party or any ERISA Affiliate from a Multiple Employer
Plan during a plan year for which it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA; (f) the conditions for imposition of a lien under
Section 302(f) of ERISA shall have been met with respect to any Plan; (g) the
adoption of an amendment to a Plan requiring the provision of security to such
Plan pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA that
constitutes grounds for the termination of, or the appointment of a trustee to
administer, such Plan.
"Eurocurrency Liabilities" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Eurodollar Lending
Office" opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender Party (or, if no such office is
specified, its Domestic Lending Office), or such other office of such Lender
Party as such Lender Party may from time to time specify to the Borrower and the
Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, an interest rate
per annum equal to the rate per annum obtained by dividing (a) the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Telerate Page 3750 (or any successor page) as the London interbank offered rate
for deposits in U.S. dollars at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period for a period equal to such Interest
Period (provided that, if for any reason such rate is not available, the term
"Eurodollar Rate" shall mean, for any Interest Period for all Eurodollar Rate
Advances comprising part of the same Borrowing, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen
LIBO Page as the London interbank offered rate for deposits in U.S. Dollars at
approximately 11:00 A.M. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period; provided,
however, if more than one rate is specified on Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such rates) by (b) a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for such
Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest as
provided in Section 2.7(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for
all Eurodollar Rate Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the first day of such
Interest Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including any emergency, supplemental or other
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marginal reserve requirement) for a member bank of the Federal Reserve System in
New York City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of liabilities
that includes deposits by reference to which the interest rate on Eurodollar
Rate Advances is determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.1.
"Excess Cash Flow" means, for any period,
(a) the sum of:
(i) Net Income of the Borrower and its Restricted
Subsidiaries for such period plus
(ii) the aggregate amount of all non-cash charges
deducted in arriving at such Net Income plus
(iii) if there was a net increase in Consolidated
Current Liabilities of the Borrower and its Restricted
Subsidiaries during such period, the amount of such net increase
plus
(iv) if there was a net decrease in Consolidated
Current Assets (excluding cash and Cash Equivalents) of the
Borrower and its Restricted Subsidiaries during such period, the
amount of such net decrease less
(b) the sum of:
(i) the aggregate amount of all non-cash credits
included in arriving at such Net Income plus
(ii) if there was a net decrease in Consolidated
Current Liabilities of the Borrower and its Restricted
Subsidiaries during such period, the amount of such net decrease
plus
(iii) if there was a net increase in Consolidated
Current Assets (excluding cash and Cash Equivalents) of the
Borrower and its Restricted Subsidiaries during such period, the
amount of such net increase plus
(iv) the aggregate amount of Capital Expenditures of
the Borrower and its Restricted Subsidiaries paid in cash during
such period to the extent permitted by this Agreement plus
(v) the aggregate amount of all regularly scheduled
principal payments of Funded Debt made during such period plus
(vi) the aggregate principal amount of all optional
prepayments of Term B Advances made during such period pursuant
to Section 2.6(a) plus
(vii) cash investments in Non Wholly-Owned Affiliates
(other than Restricted Subsidiaries) made during such period
pursuant to Section 5.2(f)(vii) plus
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(viii) income attributed during such period to minority
Investments made pursuant to Section 5.2(f)(vii) to the extent
such income is not received by the Borrower or any of its
Restricted Subsidiaries plus
(ix) $100,000,000.
"Existing Credit Agreement" has the meaning specified in the
preliminary statements to this Agreement.
"Existing Debt" has the meaning specified in Section 4.1(s)
hereof.
"Existing Stockholders" means Xxxxx X. Xxx, Xxxxx X. Xxx, Xxxxx
X. Xxx Trust of December 31, 1987, Xxxx X. Xxx Trust of December 31, 1987, Xxxxx
X. Xxx Trust of December 31, 1987 and Mr. X.X. Xxx.
"Extraordinary Receipt" means any cash received by or paid to or
for the account of any Person by way of proceeds of insurance (other than
proceeds of business interruption insurance to the extent such proceeds
constitute compensation for lost earnings) and condemnation awards (and payments
in lieu thereof); provided, however, that an Extraordinary Receipt shall not
include cash receipts received from proceeds of insurance or condemnation awards
(or payments in lieu thereof) to the extent that such proceeds, awards or
payments in respect of loss or damage to equipment, fixed assets or real
property are applied (or in respect of which expenditures were previously
incurred) to replace or repair the equipment, fixed assets or real property in
respect of which such proceeds, awards or payments were received in accordance
with the terms of the Loan Documents, so long as such application is made within
180 days after the occurrence of such damage or loss.
"Fab Transaction" means one or more transactions which are
designed to create an international subsidiary-contract wafer foundry business
to be owned by an entity formed for such purpose ("Newco"), which transactions
shall consist of any or all of the following: (a) the acquisition of all or
substantially all of Anam's semiconductor wafer fabrication assets by Newco or a
Subsidiary of Newco, (b) the exchange of Anam shares by the Borrower or any of
its Subsidiaries for Equity Interests of Newco and, if applicable, of such
Subsidiary of Newco; provided that, following such exchange the Borrower will
own, after giving effect to such exchange, directly or indirectly, at least 30%
of the issued and outstanding Equity Interests of Newco (on a fully diluted
basis), (c) the transfer of the Borrower's wafer fabrication services business
to Newco in exchange for Equity Interests of Newco or cash, or any combination
thereof, (provided that, to the extent such transfer shall be made in exchange
for cash, it shall be made for Fair Market Value) and (d) the exchange of Equity
Interests of Newco for Equity Interests of any entity engaged in the same
business ("Newco Successor") where the Equity Interests of such entity are
traded on any stock exchange located in the United States or quoted on the
NASDAQ National Market; provided, however, that (i) Newco (and Newco Successor)
shall be incorporated in the United States, the Netherlands, Bermuda, Ireland,
Luxembourg or another jurisdiction reasonably acceptable to the Agents, (ii) the
Borrower's stock of Newco (and Newco Successor) shall not be subject to any
restrictions on transfer that are more onerous to the Lender Parties as those
applicable to the Borrower's stock of Anam on the Effective Date (it being
understood that any restrictions on transfer resulting solely from such stock
being "restricted securities" under Rule 144 of the Securities Act of 1933, as
amended, shall not be deemed to be more onerous on the Lender parties), (iii)
any Equity Interests of Newco and Newco Successor held by the Borrower, directly
or indirectly, shall be pledged to the Lender Parties and (iv) as a result of
any transaction constituting a "Fab Transaction" the Borrower shall not incur
any dilution of the economic benefit in its aggregate Equity Interests in Anam
and, in the event of a
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transfer in exchange for Equity Interests referred to in clause (c) above, any
dilution of its economic benefit derived from the wafer fabrication services
business (after taking into account tax and other economic benefits reasonably
derived from the implementation of the Fab Transaction) in comparison to the
Borrower's Equity Interests in Newco or Newco Successor, as the case may be;
provided further, that Newco or Newco successor shall be formed as a
corporation, limited liability company or other form of entity with limited
liability to shareholders.
"Facility" means the Term B Facility, the Revolving Credit
Facility or the Letter of Credit Facility.
"Fair Market Value" means (a) with respect to any asset or group
of assets (other than a marketable debt or equity security) at any date, the
value of the consideration obtainable in a sale of such asset at such date
assuming a sale by a willing seller to a willing purchaser dealing at arm's
length and arranged in an orderly manner over a reasonable period of time having
regard to the nature and characteristics of such asset, as reasonably determined
by any of the chief financial officer, the chief executive officer, the
corporate controller or the president of the Borrower, or, if such asset shall
have been the subject of a relatively contemporaneous appraisal by an
independent third party appraiser, the basic assumptions underlying which have
not materially changed since its date, the value set forth in such appraisal,
and (b) with respect to any marketable debt or equity security at any date, the
closing sale price of such marketable debt or equity security on the Business
Day next preceding such date, as appearing in any published list of any national
securities exchange or the Nasdaq Stock Market or, if there is no such closing
sale price of such marketable debt or equity security, the final price for the
purchase of such marketable debt or equity security at face value quoted on such
business day by a financial institution of recognized standing which regularly
deals in securities of such type selected by the Administrative Agent.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day that is a Business Day, the average of the quotations for such day
for such transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Fee Letter" means the fee letter dated March 30, 2001 between
the Borrower and CUSA.
"Fiscal Year" means a fiscal year of the Borrower and its
Consolidated Subsidiaries ending on December 31 in any calendar year.
"Fixed Charge Coverage Ratio" means, at any date of
determination, the ratio of (a) Consolidated EBITDA of the Borrower and its
Restricted Subsidiaries minus Capital Expenditures plus (as of the last day of
the relevant Measurement Period) all cash (including Cash Equivalents) of the
Borrower and its Restricted Subsidiaries to (b) the sum of (i) income taxes that
have been paid in cash plus (ii) interest payable in cash on all Debt for
Borrowed Money plus (iii) scheduled principal amounts of all Debt for Borrowed
Money payable, in each case, of or by the Borrower and its Restricted
Subsidiaries for the most recent Measurement Period ending on or prior to such
date.
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"Foreign Subsidiary" means a Subsidiary of the Borrower organized
under the laws of a jurisdiction other than the United States or any State
thereof.
"Funded Debt" of any Person means Debt in respect of the
Advances, in the case of the Borrower, and all other Debt of such Person that by
its terms matures more than one year after the date of determination or matures
within one year from such date but is renewable or extendible, at the option of
such Person, to a date more than one year after such date or arises under a
revolving credit or similar agreement that obligates the lender or lenders to
extend credit during a period of more than one year after such date, including
all amounts of Funded Debt of such Person required to be paid or prepaid within
one year after the date of determination.
"GAAP" has the meaning specified in Section 1.3.
"Granting Lender" has the meaning specified in Section 8.7(i).
"Guaranties" means each Subsidiary Guaranty and each Intercompany
Guaranty.
"Guarantors" means each Subsidiary Guarantor and each
Intercompany Guarantor.
"Guaranty and Security Confirmation" means each agreement,
pursuant to which a Loan Party reaffirms its obligations under, and affecting
certain amendments to, the Guaranties and the Collateral Documents.
"Hazardous Materials" means (a) petroleum or petroleum products,
by-products or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls and radon gas and (b) any other chemicals,
materials or substances designated, classified or regulated as hazardous or
toxic or as a pollutant or contaminant under any Environmental Law.
"Hedge Agreements" means (i) interest rate swap, cap or collar
agreements and (ii) interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other hedging agreements.
"Hedge Bank" means any Lender Party or an Affiliate of a Lender
Party in its capacity as a party to a Secured Hedge Agreement.
"Increase Date" has the meaning specified in Section 2.17(a).
"Increasing Lender" has the meaning specified in Section 2.17(b).
"Indemnified Costs" has the meaning specified in Section 7.5(a).
"Indemnified Party" has the meaning specified in Section 8.4(b).
"Indentures" means the Senior Notes Indenture (1999), the Senior
Notes Indenture (2001), the Senior Subordinated Notes Indenture, the Convertible
Subordinated Notes Indenture (1998) and the Convertible Subordinated Notes
Indenture (2000) and any other indenture governing the terms of Subordinated
Debt incurred or issued pursuant to clauses (v) or (vi) of Section 5.2(b).
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"Information Memorandum" means the confidential information
memorandum dated March 2001 used by the Arrangers in connection with the
amendment hereby of the Existing Credit Agreement.
"Initial Closing Date" means April 28, 2000, the date of the
Initial Extension of Credit.
"Initial Extension of Credit" means the initial Borrowing under
the Existing Credit Agreement.
"Initial Issuing Banks" has the meaning specified in the recital
of parties to this Agreement.
"Initial Lenders" has the meaning specified in the recital of
parties to this Agreement.
"Insufficiency" means, with respect to any Plan, the amount, if
any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.
"Intercompany Guarantor" means each Subsidiary of the Borrower
listed on Schedule III hereto and each other Subsidiary of the Borrower that has
executed and delivered a guaranty pursuant to Section 5.1(j)(i)(B).
"Intercompany Guaranty" means the guaranty dated as of April 28,
2000 among the Intercompany Guarantors, the Borrower and the Restricted
Subsidiaries and any other guaranty which from time to time is executed and
delivered by an Intercompany Guarantor pursuant to Section 5.1(j)(i)(B).
"Intercompany Notes" means promissory notes, in form and
substance satisfactory to the Agents, evidencing Debt permitted pursuant to
Section 5.2(iv)(B), and shall include, without limitation, the AT Korea Bonds.
"Interest Coverage Ratio" means, at any date of determination,
the ratio of (a) Consolidated EBITDA of the Borrower and its Restricted
Subsidiaries to (b) interest payable in cash on all Debt for Borrowed Money of
or by the Borrower and its Restricted Subsidiaries for the most recent
Measurement Period ending on or prior to such date.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Base Rate Advance
into such Eurodollar Rate Advance, and ending on the last day of the period
selected by the Borrower pursuant to the provisions below and, thereafter, each
subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by the
Borrower pursuant to the provisions below. The duration of each such Interest
Period shall be one, two, three or six months, as the Borrower may, upon notice
received by the Administrative Agent not later than 11:00 A.M. (New York City
time) on the third Business Day prior to the first day of such Interest Period,
select; provided, however, that:
(a) the Borrower may not select any Interest Period with
respect to any Eurodollar Rate Advance under a Facility that ends after
any principal repayment installment date for such Facility unless, after
giving effect to such selection, the aggregate principal amount of Base
Rate Advances and of Eurodollar Rate Advances
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having Interest Periods that end on or prior to such principal repayment
installment date for such Facility shall be at least equal to the
aggregate principal amount of Advances under such Facility due and
payable on or prior to such date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing shall be
of the same duration;
(c) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding
Business Day; provided, however, that, if such extension would cause the
last day of such Interest Period to occur in the next following calendar
month, the last day of such Interest Period shall occur on the next
preceding Business Day; and
(d) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months in
such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986
and the regulations promulgated and rulings issued thereunder.
"Inventory" means all Inventory referred to in Section 1(b) of
the Security Agreement.
"Investment" in any Person means any loan or advance to such
Person, any deposit with such Person, any prepayment of the services of such
Person (other than in the ordinary course of business), any purchase or other
acquisition of any Equity Interests or Debt or the assets comprising a division
or business unit or a substantial part or all of the business of such Person,
any capital contribution to such Person or any other direct or indirect
investment in such Person, including any acquisition by way of a merger or
consolidation and any arrangement pursuant to which the investor incurs Debt of
the types referred to in clause (i) or (j) of the definition of "Debt" in
respect of such Person.
"Issuing Banks" means each Initial Issuing Bank and any other
Revolving Credit Lender approved as an Issuing Bank by each of the Agents and
any Eligible Assignee to which a Letter of Credit Commitment hereunder has been
assigned pursuant to Section 8.7 so long as each such Revolving Credit Lender or
each such Eligible Assignee expressly agrees to perform in accordance with their
terms all of the obligations that by the terms of this Agreement are required to
be performed by it as an Issuing Bank and notifies the Administrative Agent of
its Applicable Lending Office and the amount of its Letter of Credit Commitment
(which information shall be recorded by the Administrative Agent in the
Register).
"Korean Collateral Documents" means (a) the Korean law securities
Pledge Agreement dated as of June 8, 2000, as supplemented by a Guaranty and
Security Confirmation dated as of the Effective Date, between the Borrower and
the Collateral Agent and (b) the New York law Collateral Trust Agreement dated
as of April 28, 2000, as supplemented by a Guaranty and Security Confirmation
dated as of the Effective Date, between the Borrower and the Collateral Agent.
"L/C Collateral Account" has the meaning specified in the
Security Agreement.
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"L/C Related Documents" has the meaning specified in Section
2.4(c)(ii)(A).
"Lender Party" means any Lender or any Issuing Bank.
"Lenders" means the Initial Lenders and each Person that shall
become a Lender hereunder pursuant to Section 8.7 for so long as such Initial
Lender or Person, as the case may be, shall be a party to this Agreement.
"Letter of Credit Advance" means an advance made by any Issuing
Bank or any Revolving Credit Lender pursuant to Section 2.3(c).
"Letter of Credit Agreement" has the meaning specified in Section
2.3(a).
"Letter of Credit Commitment" means, with respect to any Issuing
Bank at any time, the amount set forth opposite such Issuing Bank's name on
Schedule I hereto under the caption "Letter of Credit Commitment" or, if such
Issuing Bank has entered into one or more Assignment and Acceptances, set forth
for such Issuing Bank in the Register maintained by the Administrative Agent
pursuant to Section 8.7(d) as such Issuing Bank's "Letter of Credit Commitment",
as such amount may be reduced at or prior to such time pursuant to Section 2.5.
"Letter of Credit Facility" means, at any time, an amount equal
to the lesser of (a) the aggregate amount of the Issuing Banks' Letter of Credit
Commitments at such time and (b) $50,000,000, as such amount may be reduced at
or prior to such time pursuant to Section 2.5.
"Letters of Credit" has the meaning specified in Section 2.1(d).
"Leverage Ratio" means, at any date of determination, the ratio
of Consolidated total Debt for Borrowed Money of the Borrower and its Restricted
Subsidiaries to Consolidated EBITDA of the Borrower and its Restricted
Subsidiaries for the most recent Measurement Period ending on or prior to such
date.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement which is
intended to serve as the functional equivalent of security, including the lien
or retained security title of a conditional vendor and any easement, right of
way or other encumbrance on title to real property.
"Loan Documents" means (a) for purposes of this Agreement and the
Notes and any amendment, supplement or modification hereof or thereof, (i) this
Agreement, (ii) the Notes, (iii) the Guaranties, (iv) the Collateral Documents,
(v) each Letter of Credit Agreement, (vi) each Intercompany Note, and (vii) the
Fee Letter and (b) for purposes of the Guaranties and the Collateral Documents
and for all other purposes other than for purposes of this Agreement and the
Notes, (i) this Agreement, (ii) the Notes, (iii) the Guaranties, (iv) the
Collateral Documents, (v) each Letter of Credit Agreement, (vi) each Secured
Hedge Agreement, (vii) each Intercompany Note, and (viii) the Fee Letter.
"Loan Parties" means the Borrower, the Guarantors and AT Korea.
"Loan Value" means (a) with respect to Eligible Receivables, up
to 85% of the value of Eligible Receivables; and (b) with respect to Eligible
Inventory, up to 50% of the value of Eligible Inventory.
"Margin Stock" has the meaning specified in Regulation U.
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"Material Adverse Change" means any material adverse change in
the business, assets, properties, liabilities (actual and contingent), condition
(financial or otherwise), operations or prospects of the Borrower and its
Subsidiaries, taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a)
the business, assets, properties, liabilities (actual and contingent),
operations, condition (financial or otherwise), or prospects of the Borrower and
its Subsidiaries, taken as a whole, (b) the rights and remedies of any Agent or
any Lender Party under any Transaction Document or (c) the ability of any Loan
Party to perform its Obligations under any Transaction Document to which it is
or is to be a party.
"Material Contract" means, at any date, the contracts and
agreements filed, or required to be filed as an exhibit to the Borrower's Form
10-K, as if such Form 10-K were being filed on such date and including (whether
or not required to be so filed) the Toshiba JV Agreement.
"Maximum Restricted Investment Amount" means an amount not to
exceed $175,000,000 during the period beginning on the Effective Date and ending
on the date (the "Delivery Date") that the Administrative Agent receives the
financial statements required to be delivered pursuant to Section 5.3(b) for the
Fiscal Year ending December 31, 2001, which amount shall increase (a) on the
Delivery Date, by 25% of Net Income of the Borrower and its Restricted
Subsidiaries for such Fiscal Year, (b) on the first anniversary of the Delivery
Date, by 35% of Net Income of the Borrower and its Restricted Subsidiaries for
the Fiscal Year ending December 31, 2002 and (c) on each subsequent anniversary
of the Delivery Date thereafter, by 50% of Net Income of the Borrower and its
Restricted Subsidiaries for the Fiscal Year most recently ended as of such
anniversary; provided, however, that (i) if on the Delivery Date, or on any
anniversary thereof, Net Income of the Borrower and its Restricted Subsidiaries
for the Fiscal Year most recently ended as of such date is a negative amount,
then (x) the "Maximum Restricted Investment Amount" shall on such date be
reduced by 100% of such negative amount of Net Income except that such reduced
"Maximum Restricted Investment Amount" shall not be less than the then
outstanding Affiliate Restricted Investment Amount and (y) in the event that
following such reduction there is any remaining unabsorbed portion of negative
amount of Net Income, such remaining unabsorbed portion shall (until fully
absorbed) be deducted from (A) any amounts received by the Borrower and its
Restricted Subsidiaries under clause (b) of the definition of Affiliate
Restricted Investment Amount in the calculation thereof and (B) thereafter, to
the extent remaining on any anniversary of the Delivery Date, the applicable
percentage of Net Income for the relevant Fiscal Year for the purpose of any
subsequent adjustment of the "Maximum Restricted Investment Amount" in
accordance with the provisions of this paragraph; and (ii) at no time shall the
"Maximum Restricted Investment Amount" exceed $350,000,000.
"Measurement Period" means, at any date of determination, the
most recent four consecutive fiscal quarters ending on or prior to such date;
provided that, (a) for determination on December 31, 2000, Measurement Period
shall mean (i) for purposes of determining the Fixed Charge Coverage Ratio, the
two fiscal quarters most recently ended multiplied by two and (ii) for all other
purposes, the three fiscal quarters most recently ended multiplied by 4/3; and
(b) for determination solely in respect of the Fixed Charge Coverage Ratio on
March 31, 2001, Measurement Period shall mean the three fiscal quarters most
recently ended multiplied by 4/3.
"Mortgages" means each mortgage, deed of trust, trust deed,
leasehold mortgage or leasehold deed of trust delivered pursuant to Section
5.1(j) or 5.1(p).
"Mortgage Policies" has the meaning specified in Section
5.1(p)(i)(B).
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"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined
in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Loan Party or any ERISA Affiliate and at least one Person other than the Loan
Parties and the ERISA Affiliates or (b) was so maintained and in respect of
which any Loan Party or any ERISA Affiliate could have liability under Section
4064 or 4069 of ERISA in the event such plan has been or were to be terminated.
"Net Cash Proceeds" means, with respect to any sale, lease,
transfer or other disposition of any asset or the incurrence or issuance of any
Debt or the sale or issuance of any Equity Interests (including any capital
contribution) by any Person, or any Extraordinary Receipt received by or paid to
or for the account of any Person, the aggregate amount of cash received from
time to time (whether as initial consideration or through payment or disposition
of deferred consideration) by or on behalf of such Person in connection with
such transaction after deducting therefrom only (without duplication) (a)
reasonable and customary brokerage commissions, underwriting fees and discounts,
legal fees, finder's fees and other similar fees and commissions, (b) the amount
of taxes payable in connection with or as a result of such transaction and (c)
the amount of any Debt secured by a Lien on such asset that, by the terms of the
agreement or instrument governing such Debt, is required to be repaid upon such
disposition, in each case to the extent, but only to the extent, that the
amounts so deducted are, at the time of receipt of such cash, actually paid to a
Person that is not an Affiliate of such Person or any Loan Party or any
Affiliate of any Loan Party and are properly attributable to such transaction or
to the asset that is the subject thereof.
"Net Income" means, for any Person for any period, the net income
(or net loss) of such Person for such period, determined on a Consolidated basis
in conformity with GAAP, excluding any extraordinary gains or losses and other
gains or losses arising from asset sales and dispositions other than in the
ordinary course of business and, to the extent included in net income, non-cash
charges recorded in connection with the early conversion of convertible debt and
the prepayment of Term A Advances with the Net Cash Proceeds of issuance of the
Senior Notes (2001); provided, however, that (a) the net income of any other
Person in which such Person or one of its Subsidiaries has a joint interest with
a third party (which interest does not cause the net income of such other Person
to be consolidated into the net income of such Person in accordance with GAAP)
shall be included only to the extent of the amount of dividends or distributions
paid to such Person or Subsidiary and (b) the net income of any Subsidiary of
such Person that is not a Wholly-Owned Subsidiary shall be reduced on a
proportionate basis by a percentage equal to the percentage of the Equity
Interests in such Subsidiary not owned directly or indirectly by the Borrower.
"Non Wholly-Owned Affiliate" means any Unrestricted Subsidiary,
Permitted Joint Venture or Restricted Subsidiary (other than a Wholly-Owned
Restricted Subsidiary).
"Note" means a Term B Note or a Revolving Credit Note.
"Notice of Borrowing" has the meaning specified in Section
2.2(a).
"Notice of Issuance" has the meaning specified in Section 2.3(a).
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"Notice of Renewal" has the meaning specified in Section 2.1(d).
"Notice of Termination" has the meaning specified in Section
2.1(d).
"NPL" means the National Priorities List under CERCLA.
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including any
liability of such Person on any claim, whether or not the right of any creditor
to payment in respect of such claim is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, disputed, undisputed, legal,
equitable, secured or unsecured, and whether or not such claim is discharged,
stayed or otherwise affected by any proceeding referred to in Section 6.1(f).
Without limiting the generality of the foregoing, the Obligations of any Loan
Party under the Loan Documents include (a) the obligation to pay principal,
interest, Letter of Credit commissions, charges, expenses, fees, attorneys' fees
and disbursements, indemnities and other amounts payable by such Loan Party
under any Loan Document and (b) the obligation of such Loan Party to reimburse
any amount in respect of any of the foregoing that any Lender Party, in its sole
discretion, may elect to pay or advance on behalf of such Loan Party.
"OECD" means the Organization for Economic Cooperation and
Development.
"Open Year" has the meaning specified in Section 4.1(r)(ii).
"Other Taxes" has the meaning specified in Section 2.12(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Acquisition" means the acquisition by the Borrower or
any Restricted Subsidiary of all of the outstanding Equity Interests of any
Person, or (if such Person is organized under the laws of a jurisdiction other
than the United States or any State thereof ) 90% or more of such outstanding
Equity Interests; provided, however, that (a) such acquisition shall be
consensual and shall have been approved by the board of directors (or the
equivalent governing body) of such Person, (b) such Person shall be engaged in
business which is the same as, or related to, the business engaged in by the
Borrower and (c) no Default shall have occurred and be continuing or would
result therefrom and the representations and warranties referred to in Section
3.2(i) would be true as though made on the date of consummation of such
acquisition.
"Permitted Joint Venture" means Anam, the Toshiba JV and each
other joint venture permitted to be established under the terms of this
Agreement; provided, however, that (a) each such joint venture shall at no time
own any Equity Interests in a Restricted Subsidiary nor at any time itself have
been a Restricted Subsidiary; (b) each such joint venture that is a Subsidiary
of the Borrower shall meet the requirements of an Unrestricted Subsidiary
(unless at the time it becomes a Subsidiary it is a Restricted Subsidiary); and
(c) any Contingent Obligation, including any contractually binding commitment to
make future capital contributions, assumed by the Borrower or its Restricted
Subsidiaries in respect thereof can be quantified in order to ensure compliance
with the restrictions in Section 5.2(b)(ix).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall have
been commenced: (a) Liens for taxes, assessments and governmental charges or
levies to the extent not required to be paid under Section 5.1(b); (b) Liens
imposed by law, such as materialmen's, mechanics', carriers', workmen's and
repairmen's Liens and other similar Liens arising in the ordinary course of
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business securing obligations that are not overdue for a period of more than 30
days or which are being contested in good faith and by appropriate proceedings,
provided, that any reserves required by GAAP shall have been made; (c) zoning
restrictions, easements, rights of way and other encumbrances on title to real
property that do not render title to the property encumbered thereby
unmarketable or materially adversely affect the use of such property for its
present purposes; (d) Liens arising from judgments or decrees in circumstances
not constituting an Event of Default so long as such Lien is adequately bonded;
(e) Liens on insurance proceeds in favor of insurance companies with respect to
the financing of insurance premiums on policies under which such proceeds are to
be paid; (f) Liens incurred or deposits made under worker's compensation,
unemployment insurance and other types of social security or to secure the
performance of bids, tenders, contracts (other than for the payment of money),
surety and appeal bonds or to secure indemnity, performance or other similar
bonds in the ordinary course of business; (g) Liens incurred in connection with
leases and subleases (other than Capitalized Leases) or licenses and sublicenses
which (in each case) do not interfere in any material respect with the business
of the Borrower or its Restricted Subsidiaries and any interest or title of a
lessee or licensee under any such leases, subleases, licenses or sublicenses;
(h) Liens arising out of consignment or similar arrangements for the sale of
goods in the ordinary course of business; and (i) 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.
"Person" means an individual, partnership, corporation (including
a business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pledged Debt" has the meaning specified in the Security
Agreement.
"Pledged Shares" has the meaning specified in the Security
Agreement.
"Preferred Interests" means, with respect to any Person, Equity
Interests issued by such Person that are entitled to a preference or priority
over any other Equity Interests issued by such Person upon any distribution of
such Person's property and assets, whether by dividend or upon liquidation,
provided that the Convertible Subordinated Notes (1998) or the Convertible
Subordinated Notes (2000) shall not be "Preferred Interests" for the purposes of
this Agreement prior to the conversion of such Convertible Subordinated Notes
(1998) or Convertible Subordinated Notes (2000).
"Pro Forma Basis" means, with respect to any determination for
any period, that such determination shall be made giving pro forma effect (i) in
the case of the use of "Pro Forma Basis" in Section 5.2(b)(v), to the incurrence
of Debt anticipated to occur during such period and (ii) in the case of the use
of "Pro Forma Basis" in Section 5.2(o), to each acquisition (by purchase or
otherwise) or disposition (by sale or otherwise) of a Person or all or
substantially all of the business or assets of a Person consummated by the
Borrower or any of its Restricted Subsidiaries during such period, together with
all transactions relating thereto consummated during such period (including any
incurrence, assumption, refinancing or repayment of Debt), as if such incurrence
of Debt or acquisition, disposition and related transactions had been
consummated on the first day of such period, in each case (i) based on
historical results accounted for in accordance with GAAP and, to the extent
applicable, reasonable assumptions that are specified in reasonable detail in
the relevant compliance certificate furnished to the Administrative Agent
pursuant to Section 5.3(b) or (c) and (ii) prepared in accordance with
Regulation S-X under the Securities Act of 1933 or, if not in accordance with
Regulation S-X, accompanied by a certificate
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of the Borrower's chief financial officer certifying that such determination
(including all related results and assumptions) has been made in a manner not
inconsistent with GAAP and has been approved in writing by the Borrower's Board
of Directors (or the audit committee thereof, if any).
"Pro Rata Share" of any amount means, with respect to any
Revolving Credit Lender at any time, the product of such amount times a fraction
the numerator of which is the amount of such Lender's Revolving Credit
Commitment at such time (or, if the Commitments shall have been terminated
pursuant to Section 2.5 or 6.1, such Lender's Revolving Credit Commitment as in
effect immediately prior to such termination) and the denominator of which is
the Revolving Credit Facility at such time (or, if the Commitments shall have
been terminated pursuant to Section 2.5 or 6.1, the Revolving Credit Facility as
in effect immediately prior to such termination).
"Receivables" means all Receivables referred to in Section 1(c)
of the Security Agreement.
"Redeemable" means, with respect to any Equity Interest, any Debt
or any other right or Obligation, any such right or Obligation that (a) the
issuer has undertaken to redeem at a fixed or determinable date or dates,
whether by operation of a sinking fund or otherwise, or upon the occurrence of a
condition not solely within the control of the issuer or (b) is redeemable at
the option of the holder.
"Register" has the meaning specified in Section 8.7(d).
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Related Documents" means the Acquisition Agreement, the Senior
Note Documents, the Subordinated Debt Documents, the AT Korea Bonds, and each
other document and instrument executed and delivered in connection with the
consummation of the Transactions (other than the Loan Documents) and the
Indentures and each other document and instrument which governs or evidences any
Debt incurred under Section 5.2(b)(vi) (to the extent that such Debt extends,
refunds or refinances, in whole or in part, any Debt which is governed or
evidenced by any of the foregoing documents and instruments or by the Loan
Documents).
"Replaced Lender Party" has the meaning specified in Section
2.12(h).
"Replacement Effective Date" has the meaning specified in Section
2.12(h).
"Replacement Lender Party" has the meaning specified in Section
2.12(h).
"Required Lenders" means, at any time, Lenders owed or holding at
least a majority in interest of the sum of (a) the aggregate principal amount of
the Advances outstanding at such time, (b) the aggregate Available Amount of all
Letters of Credit outstanding at such time and (c) the aggregate Unused
Revolving Credit Commitments at such time; provided, however, that if any Lender
shall be a Defaulting Lender at such time, there shall be excluded from the
determination of Required Lenders at such time (A) the aggregate principal
amount of the Advances owing to such Lender (in its capacity as a Lender) and
outstanding at such time, (B) such Lender's Pro Rata Share of the aggregate
Available Amount of all Letters of Credit outstanding at such time and (C) the
Unused Revolving Credit Commitment of such Lender at such time. For purposes of
this definition, the aggregate principal amount of Letter of Credit Advances
owing to any Issuing Bank and the Available Amount of each Letter of Credit
shall be
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considered to be owed to the Revolving Credit Lenders ratably in accordance with
their respective Revolving Credit Commitments.
"Responsible Officer" means any officer of any Loan Party or any
of its Subsidiaries.
"Restricted Subsidiary" means any Subsidiary of the Borrower that
is not an Unrestricted Subsidiary or a Permitted Joint Venture; provided,
however, no Unrestricted Subsidiary or Permitted Joint Venture may be designated
a Restricted Subsidiary unless (a)(i) in the case of a Domestic Subsidiary, such
Subsidiary is a Wholly-Owned Subsidiary and (ii) in the case of a Foreign
Subsidiary, the Borrower, or a Wholly-Owned Subsidiary of the Borrower, owns 90%
or more of the outstanding Equity Interests of such Foreign Subsidiary and (b)
at the time of such designation, no Default shall have occurred and be
continuing or would result therefrom.
"Revolving Credit Advance" has the meaning specified in Section
2.1(c).
"Revolving Credit Availability " means, at any date of
determination, an amount which is (a) the lesser of (i) the Revolving Credit
Facility on such date and (ii) the Loan Value of Eligible Collateral on such
date minus (b) the sum of the aggregate principal amount of (x) the Revolving
Credit Advances then outstanding, (y) the Letter of Credit Advances then
outstanding and (z) the aggregate Available Amount of all Letters of Credit then
outstanding.
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by the Revolving
Credit Lenders.
"Revolving Credit Commitment" means, with respect to any
Revolving Credit Lender at any time, the amount set forth opposite such Lender's
name on Schedule I hereto under the caption "Revolving Credit Commitment" or, if
such Lender has entered into one or more Assignment and Acceptances after the
Effective Date, set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 8.7(d) as such Lender's "Revolving
Credit Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.5.
"Revolving Credit Facility" means, at any time, the aggregate
amount of the Revolving Credit Lenders' Revolving Credit Commitments at such
time.
"Revolving Credit Lender" means any Lender that has a Revolving
Credit Commitment.
"Revolving Credit Note" means a promissory note of the Borrower
payable to the order of any Revolving Credit Lender, in substantially the form
of Exhibit A-2 hereto, evidencing the aggregate indebtedness of the Borrower to
such Lender resulting from the Revolving Credit Advances made by such Lender.
"Secured Hedge Agreement" means any Hedge Agreement required or
permitted under Article V that is entered into by and between any Loan Party and
any Hedge Bank.
"Secured Obligations" has the meaning specified in the Security
Agreement.
"Secured Parties" means the Agents, the Lender Parties and any
other holder of the Obligations of the Loan Parties under the Loan Documents.
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"Security Agreement" means the Security Agreement dated as of
April 28, 2000, as supplemented by a Guaranty and Security Confirmation dated as
of the Effective Date, among the Borrower, each Subsidiary Guarantor and the
Collateral Agent.
"Senior Debt Ratio" means, at any date of determination, the
ratio of (a) the sum of (i) outstanding Advances, (ii) the Available Amount of
outstanding Letters of Credit, and (iii) all other secured outstanding Debt
(other than Subordinated Debt), in each case, as at the end of the most recently
ended fiscal quarter of the Borrower for which financial statements are required
to be delivered to the Lender Parties pursuant to Section 5.3(b) or (c), as the
case may be, to (b) Consolidated EBITDA of the Borrower and its Restricted
Subsidiaries for such fiscal quarter and the immediately preceding three fiscal
quarters, as adjusted to give pro forma effect to any Investment made since the
last day of such fiscal quarter or to be made within 90 days after such date of
determination pursuant to an executed purchase agreement as though such
Investment had been made at the beginning of such four fiscal quarter period.
"Senior Notes (1999)" means the Series A and Series B 91/4%
Senior Notes due 2006 issued pursuant to the Senior Notes Indenture (1999).
"Senior Notes (2001)" has the meaning specified in the
preliminary statements of this Agreement.
"Senior Note Documents" means the Senior Notes (1999), the Senior
Notes Indenture (1999), the Senior Notes (2001) and the Senior Notes Indenture
(2001).
"Senior Notes Indenture (1999)" means the Indenture dated as of
May 13, 1999 between the Borrower and State Street Bank and Trust Company, as
trustee, pursuant to which the Senior Notes (1999) were issued.
"Senior Notes Indenture (2001)" means the Indenture dated as of
February 20, 2001 between the Borrower and State Street Bank and Trust Company,
as trustee, pursuant to which the Senior Notes (2001) were issued.
"Senior Subordinated Notes" means the Series A and Series B
101/2% Senior Subordinated Notes due 2009 issued pursuant to the Senior
Subordinated Notes Indenture.
"Senior Subordinated Notes Indenture" means the Indenture dated
as of May 13, 1999 between the Borrower and State Street Bank and Trust Company,
as trustee, pursuant to which the Senior Subordinated Notes were issued.
"SG" has the meaning specified in the preliminary statements to
this Agreement.
"Single Employer Plan" means a single employer plan, as defined
in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Loan Party or any ERISA Affiliate and no Person other than the Loan Parties and
the ERISA Affiliates or (b) was so maintained and in respect of which any Loan
Party or any ERISA Affiliate could have liability under Section 4069 of ERISA in
the event such plan has been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of such
Person is greater than the total amount of liabilities, including contingent
liabilities, of such Person, (b) the present fair salable value of the assets of
such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) such Person does
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not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person's ability to pay such debts and liabilities as they mature
and (d) such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person's property
would constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in the light of
all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.
"SPC" has the meaning specified in Section 8.7(i).
"SSBI" has the meaning specified in the recital of parties to
this Agreement.
"Standby Letter of Credit" means any Letter of Credit issued
under the Letter of Credit Facility, other than a Trade Letter of Credit.
"Subordinated Debt" means the Debt evidenced by the Senior
Subordinated Notes, the Convertible Subordinated Notes (1998), the Convertible
Subordinated Notes (2000) and any Debt of the Borrower incurred or issued
pursuant to clauses (v) or (vi) of Section 5.2(b) that is subordinated to the
Obligations of the Borrower under the Loan Documents.
"Subordinated Debt Documents" means the Senior Subordinated
Notes, the Senior Subordinated Notes Indenture, the Convertible Notes (1998),
the Convertible Notes Indenture (1998), the Convertible Subordinated Notes
(2000), the Convertible Subordinated Notes Indenture (2000) and any other
Indenture or instrument evidencing any Subordinated Debt.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having ordinary
voting power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time Equity Interests in any other class or
classes of such corporation shall or might have voting power upon the occurrence
of any contingency), (b) the interest in the capital or profits of such
partnership, joint venture or limited liability company or (c) the beneficial
interest in such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"Subsidiary Guarantor" means Guardian Assets, Inc. and each other
Subsidiary of the Borrower that shall be required to execute and deliver a
guaranty pursuant to Section 5.1(j)(i)(A).
"Subsidiary Guaranty" means the guaranty dated as of April 28,
2000, as supplemented by a Guaranty and Security Confirmation dated as of the
Effective Date, made by each Subsidiary Guarantor in favor of the Lender
Parties, and any other guaranty which from time to time is executed and
delivered by a Subsidiary Guarantor in favor of the Lender Parties pursuant to
Section 5.1(j)(i)(A).
"Syndication Agent" has the meaning specified in the recital of
parties to this Agreement.
"Tangible Net Worth" shall mean, at the end of any fiscal
quarter, the sum of the capital stock (including Debt converted into or
exchanged for capital stock or otherwise capitalized) and additional paid-in
capital, plus retained earnings (or minus accumulated deficit)
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as determined on a consolidated basis in accordance with GAAP, minus any
goodwill and intangibles, all as determined in accordance with GAAP.
"Taxes" has the meaning specified in Section 2.12(a).
"Term A Advances" means the term loans in an aggregate principal
amount of $350,000,000 made to the Borrower on the Initial Closing Date pursuant
to Section 2.1(a) of the Existing Credit Agreement.
"Term A Facility" has the meaning specified in the Existing
Credit Agreement.
"Term B Advance" has the meaning specified in Section 2.1(b).
"Term B Borrowing" means a borrowing consisting of simultaneous
Term B Advances of the same Type made by the Term B Lenders.
"Term B Commitment" means, with respect to any Term B Lender at
any time, the amount set forth opposite such Lender's name on Schedule I hereto
under the caption "Term B Commitment" or, if such Lender has entered into one or
more Assignment and Acceptances after the Effective Date, set forth for such
Lender in the Register maintained by the Administrative Agent pursuant to
Section 8.7(d) as such Lender's "Term B Commitment", as such amount may be
reduced at or prior to such time pursuant to Section 2.5.
"Term B Facility" means, at any time, the aggregate amount of the
Term B Lenders' Term B Commitments at such time.
"Term B Lender" means any Lender that has a Term B Commitment.
"Term B Note" means a promissory note of the Borrower payable to
the order of any Term B Lender, in substantially the form of Exhibit A-1 hereto,
evidencing the indebtedness of the Borrower to such Lender resulting from the
Term B Advance made by such Lender.
"Termination Date" means the earlier of (a) the date of
termination in whole of the Revolving Credit Commitments, the Letter of Credit
Commitments and the Term B Commitments pursuant to Section 2.5 or 6.1 and (b)(i)
for purposes of the Revolving Credit Facility and the Letter of Credit Facility,
March 31, 2005 and (ii) for purposes of the Term B Facility and for all other
purposes, the date that is the earlier of (A) September 30, 2005 and (B) six (6)
months prior to maturity of the Senior Notes (1999).
"Toshiba JV" means the joint venture established pursuant to the
Toshiba JV Agreement.
"Toshiba JV Agreement" means the Joint Venture Agreement dated
December 7, 2000, among the Borrower, Toshiba Corporation and Iwate Toshiba
Electronics Company Ltd., a copy of which has been delivered to the
Administrative Agent and the Required Lenders.
"Trade Letter of Credit" means any Letter of Credit that is
issued under the Letter of Credit Facility for the benefit of a supplier of
Inventory to the Borrower or any of its Subsidiaries to effect payment for such
Inventory, the conditions to drawing under which include the presentation to the
Issuing Bank that issued such Letter of Credit of negotiable bills of lading,
invoices and related documents sufficient, in the judgment of such Issuing Bank,
to create a valid
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and perfected lien on or security interest in such Inventory, bills of lading,
invoices and related documents in favor of such Issuing Bank.
"Transaction Documents" means, collectively, the Loan Documents
and the Related Documents.
"Transactions" means the transactions contemplated by the
Transaction Documents.
"Type" refers to the distinction between Advances bearing
interest at the Base Rate and Advances bearing interest at the Eurodollar Rate.
"Unrestricted Subsidiary" means any Subsidiary of the Borrower,
designated as an "unrestricted Subsidiary" by the board of directors of the
Borrower (and shall in any event include Anam if such entity becomes a
Subsidiary of the Borrower); provided that each such Subsidiary shall at all
times: (a) account for and manage all of its assets and liabilities, and
maintain its books, financial statements and accounting and other records,
separately from those of the Borrower and its Restricted Subsidiaries, (b) deal
with the Borrower and its Restricted Subsidiaries on arms' length terms and (c)
not own any capital stock of a Restricted Subsidiary nor at any times itself
have been a Restricted Subsidiary.
"Unused Revolving Credit Commitment" means, with respect to any
Revolving Credit Lender at any time, (a) such Lender's Revolving Credit
Commitment at such time minus (b) the sum of (i) the aggregate principal amount
of all Revolving Credit Advances and Letter of Credit Advances made by such
Lender (in its capacity as a Lender) and outstanding at such time plus (ii) such
Lender's Pro Rata Share of (A) the aggregate Available Amount of all Letters of
Credit outstanding at such time and (B) the aggregate principal amount of all
Letter of Credit Advances made by the Issuing Banks pursuant to Section 2.3(c)
and outstanding at such time.
"Voting Interests" means shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person, the holders of
which are ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such Person,
even if the right so to vote has been suspended by the happening of such a
contingency.
"Welfare Plan" means a welfare plan, as defined in Section 3(1)
of ERISA, that is maintained for employees of any Loan Party or in respect of
which any Loan Party could have liability.
"Wholly-Owned Restricted Subsidiary" means any Restricted
Subsidiary of the Borrower that is (a) a Wholly-Owned Subsidiary or (b) a
Foreign Subsidiary (which is not a Wholly-Owned Subsidiary) and (i) 90% or more
of the outstanding Equity Interests of such Foreign Subsidiary are owned by the
Borrower, or a Wholly-Owned Subsidiary of the Borrower, and (ii) applicable law
does not enable the Borrower, or a Wholly-Owned Subsidiary of the Borrower, to
compulsorily acquire the remaining outstanding minority Equity Interests of such
Foreign Subsidiary (which are not owned by the Borrower or Wholly-Owned
Subsidiary) from the holders thereof on terms which are commercially reasonable
in the circumstances (provided, that the Borrower shall deliver to the
Administrative Agent a certificate of its chief financial officer demonstrating
in detail that any such Foreign Subsidiary falls within this clause (ii) and
such Foreign Subsidiary shall be treated as a "Wholly-Owned Restricted
Subsidiary" unless the Administrative Agent or the Required Lenders notify the
Borrower within 21 days of receipt of
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such certificate that they are not satisfied (acting reasonably) as to the
matters detailed in such certificate.
"Wholly-Owned Subsidiary" of any Person, means any other Person,
all of the outstanding Equity Interests of which (other than director's
qualifying shares or other de minimis nominal shareholdings, to the extent that
they are, in each case, be required by law) is owned by such Person directly or
by other Wholly-Owned Subsidiaries of such Person.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.2. COMPUTATION OF TIME PERIODS; OTHER DEFINITIONAL
PROVISIONS.
(a) In this Agreement and the other Loan Documents in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
(b) The words "herein," "hereof" and "hereunder" and similar
words refer to this Agreement as a whole, and not to any particular Article,
Section, subsection or clause in, this Agreement.
(c) References in this Agreement to an Exhibit, Schedule,
Article, Section, subsection or clause refer to the appropriate Exhibit or
Schedule to, or Article, Section, subsection or clause in this Agreement.
(d) Each agreement defined in this Article I shall include
all appendices, exhibits and schedules thereto. If the prior written consent of
the Required Lenders is required hereunder for an amendment, restatement,
supplement or other modification to any such agreement and such consent is
obtained, references in this Agreement to such agreement shall be to such
agreement as so amended, restated, supplemented or modified.
(e) References in this Agreement to any statute shall be to
such statute as amended or modified and in effect at the time any such reference
is operative.
(f) The term "including" when used in any Loan Document means
"including, without limitation," except when used in the computation of time
periods.
(g) The terms "Lender," "Issuing Bank" and "Administrative
Agent" and "Collateral Agent" include their respective successors.
(h) Upon the appointment of any successor Administrative
Agent or Collateral Agent pursuant to Section 7.6, references to SSBI and CUSA
in Section 7.3 and to Citibank in the definition of Base Rate shall be deemed to
refer to the financial institution then acting as the Administrative Agent or
one of its Affiliates if it so designates.
SECTION 1.3. ACCOUNTING TERMS. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.1(g) ("GAAP").
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ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.1. THE ADVANCES AND THE LETTERS OF CREDIT.
(a) The Term A Advances. On the Initial Closing Date, the
Term A Lenders (as defined in the Existing Credit Agreement) made the Term A
Advances to the Borrower. Prior to the Effective Date, the Borrower repaid the
Term A Advances in full from the Net Cash Proceeds of the Senior Notes (2001) as
required by the terms of the Existing Credit Agreement. The Term A Facility is
hereby canceled.
(b) The Term B Advances. Pursuant to the Existing Credit
Agreement, the Term B Lenders, severally, made (ratably according to their Term
B Commitments) a single advance in the aggregate principal amount of
$350,000,000 (a "Term B Advance") to the Borrower on the Initial Closing Date,
of which $347,375,000 is outstanding as of the date of this Agreement. Amounts
of the Term B Advances which have been repaid or prepaid or which hereafter may
be repaid or prepaid may not be reborrowed.
(c) The Revolving Credit Advances. Each Revolving Credit
Lender severally agrees, on the terms and conditions hereinafter set forth, to
make advances (each a "Revolving Credit Advance") to the Borrower from time to
time on any Business Day during the period from the Effective Date until the
Termination Date in an amount for each such Advance not to exceed such Lender's
Pro Rata Share of the Revolving Credit Availability at such time. Each Revolving
Credit Borrowing shall be in an aggregate amount of $2,500,000 or an integral
multiple of $500,000 in excess thereof (other than a Borrowing the proceeds of
which shall be used solely to repay or prepay in full outstanding Letter of
Credit Advances) and shall consist of Revolving Credit Advances made
simultaneously by the Revolving Credit Lenders ratably according to their
Revolving Credit Commitments. Within the limits of each Revolving Credit
Lender's Revolving Credit Commitment in effect from time to time and subject to
the terms and conditions hereinafter set forth, the Borrower may borrow under
this Section 2.1(c), prepay pursuant to Section 2.6(a) and reborrow under this
Section 2.1(c).
(d) Letters of Credit. Each Issuing Bank severally agrees, on
the terms and conditions hereinafter set forth, to issue (or cause its Affiliate
that is a commercial bank to issue on its behalf) letters of credit (the
"Letters of Credit") for the account of the Borrower from time to time on any
Business Day during the period from the Effective Date until 60 days before the
Termination Date in an aggregate Available Amount (i) for all Letters of Credit
issued by such Issuing Bank not to exceed at any time the lesser of (x) the
Letter of Credit Facility at such time and (y) such Issuing Bank's Letter of
Credit Commitment at such time and (ii) for each such Letter of Credit not to
exceed the Revolving Credit Availability at such time. No Letter of Credit shall
have an expiration date (including all rights of the Borrower or the beneficiary
to require renewal) later than the earlier of 60 days before the Termination
Date and (A) in the case of a Standby Letter of Credit, one year after the date
of issuance thereof, but may by its terms be renewable annually upon notice (a
"Notice of Renewal") given to the Issuing Bank that issued such Standby Letter
of Credit and the Administrative Agent on or prior to any date for notice of
renewal set forth in such Letter of Credit but in any event at least three
Business Days prior to the date of the proposed renewal of such Standby Letter
of Credit and upon fulfillment of the applicable conditions set forth in Article
III unless such Issuing Bank has notified the Borrower (with a copy to the
Administrative Agent) on or prior to the date for notice of termination set
forth in such Letter of Credit but in any event at least 30 Business Days prior
to the date of
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automatic renewal of its election not to renew such Standby Letter of Credit (a
"Notice of Termination") and (B) in the case of a Trade Letter of Credit, 60
days after the date of issuance thereof; provided that the terms of each Standby
Letter of Credit that is automatically renewable annually shall (x) require the
Issuing Bank that issued such Standby Letter of Credit to give the beneficiary
named in such Standby Letter of Credit notice of any Notice of Termination, (y)
permit such beneficiary, upon receipt of such notice, to draw under such Standby
Letter of Credit prior to the date such Standby Letter of Credit otherwise would
have been automatically renewed and (z) not permit the expiration date (after
giving effect to any renewal) of such Standby Letter of Credit in any event to
be extended to a date later than 60 days before the Termination Date. If either
a Notice of Renewal is not given by the Borrower or a Notice of Termination is
given by the relevant Issuing Bank pursuant to the immediately preceding
sentence, such Standby Letter of Credit shall expire on the date on which it
otherwise would have been automatically renewed; provided, however, that even in
the absence of receipt of a Notice of Renewal the relevant Issuing Bank may in
its discretion, unless instructed to the contrary by the Administrative Agent or
the Borrower, deem that a Notice of Renewal had been timely delivered and in
such case, a Notice of Renewal shall be deemed to have been so delivered for all
purposes under this Agreement. Within the limits of the Letter of Credit
Facility, and subject to the limits referred to above, the Borrower may request
the issuance of Letters of Credit under this Section 2.1(d), repay any Letter of
Credit Advances resulting from drawings thereunder pursuant to Section 2.3(c)
and request the issuance of additional Letters of Credit under this Section
2.1(d).
SECTION 2.2. MAKING THE ADVANCES.
(a) Except as otherwise provided in Section 2.2(b) or 2.3,
each Borrowing shall be made on notice, given not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the date of the proposed
Borrowing in the case of a Borrowing consisting of Eurodollar Rate Advances, or
the first Business Day prior to the date of the proposed Borrowing in the case
of a Borrowing consisting of Base Rate Advances, by the Borrower to the
Administrative Agent, which shall give to each Appropriate Lender prompt notice
thereof by telex or telecopier. Each such notice of a Borrowing (a "Notice of
Borrowing") shall be by telephone, confirmed immediately in writing, or telex or
telecopier, in substantially the form of Exhibit B hereto, specifying therein
the requested (i) date of such Borrowing, (ii) Facility under which such
Borrowing is to be made, (iii) Type of Advances comprising such Borrowing, (iv)
aggregate amount of such Borrowing and (v) in the case of a Borrowing consisting
of Eurodollar Rate Advances, initial Interest Period for each such Advance. Each
Appropriate Lender shall, before 11:00 A.M. (New York City time) on the date of
such Borrowing, make available for the account of its Applicable Lending Office
to the Administrative Agent at the Administrative Agent's Account, in same day
funds, such Lender's ratable portion of such Borrowing in accordance with the
respective Commitments under the applicable Facility of such Lender and the
other Appropriate Lenders. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available to the Borrower by
crediting the Borrower's Account; provided, however, that, in the case of any
Revolving Credit Borrowing, the Administrative Agent shall first make a portion
of such funds equal to the aggregate principal amount of any Letter of Credit
Advances made by any Issuing Bank, as the case may be, and by any other
Revolving Credit Lender and outstanding on the date of such Revolving Credit
Borrowing, plus interest accrued and unpaid thereon to and as of such date,
available to such Issuing Bank, as the case may be, and such other Revolving
Credit Lenders for repayment of such Letter of Credit Advances.
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(b) Anything in subsection (a) above to the contrary
notwithstanding, the Borrower may not select Eurodollar Rate Advances (i) for
the Borrowing on the Initial Closing Date, (ii) for any Borrowing if the
aggregate amount of such Borrowing is less than $5,000,000 or (iii) if the
obligation of the Appropriate Lenders to make Eurodollar Rate Advances shall
then be suspended pursuant to Section 2.9 or 2.10. In addition, the Revolving
Credit Advances may not be outstanding as part of more than 12 separate
Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding
on the Borrower. In the case of any Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower
shall indemnify each Appropriate Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to fulfill on or before the
date specified in such Notice of Borrowing for such Borrowing the applicable
conditions set forth in Article III, including any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Advance to be made by such Lender as part of such Borrowing when such Advance,
as a result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received
notice from an Appropriate Lender prior to the date of any Borrowing that such
Lender will not make available to the Administrative Agent such Lender's ratable
portion of such Borrowing, the Administrative Agent may assume that such Lender
has made such portion available to the Administrative Agent on the date of such
Borrowing in accordance with subsection (a) of this Section 2.2 and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If and to the extent that such
Lender shall not have so made such ratable portion available to the
Administrative Agent, such Lender and the Borrower severally agree to repay or
pay to the Administrative Agent forthwith on demand such corresponding amount
and to pay interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid or paid to the
Administrative Agent, at (i) in the case of the Borrower, the interest rate
applicable at such time under Section 2.7 to Advances comprising such Borrowing
and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender
shall pay to the Administrative Agent such corresponding amount, such amount so
paid shall constitute such Lender's Advance as part of such Borrowing for all
purposes.
(e) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.3. ISSUANCE OF AND DRAWINGS AND REIMBURSEMENT UNDER
LETTERS OF CREDIT.
(a) Request for Issuance. Each Letter of Credit shall be
issued upon notice, given not later than 11:00 A.M. (New York City time) on the
fifth Business Day prior to the date of the proposed issuance of such Letter of
Credit, by the Borrower to any Issuing Bank, which shall give to the
Administrative Agent and each Revolving Credit Lender prompt notice thereof by
telex or telecopier. Each such notice of issuance of a Letter of Credit (a
"Notice of Issuance") shall be by telephone, confirmed immediately in writing,
or telex or telecopier, specifying therein the requested (A) date of such
issuance (which shall be a Business Day), (B) Available Amount of such Letter of
Credit, (C) expiration date of such Letter of Credit, (D) name and address of
the beneficiary of such Letter of Credit and (E) form of such Letter of Credit,
and shall be
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accompanied by such application and agreement for letter of credit as such
Issuing Bank may specify to the Borrower for use in connection with such
requested Letter of Credit (a "Letter of Credit Agreement"). If (x) the
requested form of such Letter of Credit is acceptable to such Issuing Bank in
its sole discretion and (y) it has not received notice of objection to such
issuance from Lenders holding at least 50% of the Revolving Credit Commitments,
such Issuing Bank will, upon fulfillment of the applicable conditions set forth
in Article III, make such Letter of Credit available to the Borrower at its
office referred to in Section 8.2 or as otherwise agreed with the Borrower in
connection with such issuance. In the event and to the extent that the
provisions of any Letter of Credit Agreement shall conflict with this Agreement,
the provisions of this Agreement shall govern.
(b) Letter of Credit Reports. Each Issuing Bank shall furnish
(A) to the Administrative Agent on the first Business Day of each week a written
report summarizing issuance and expiration dates of Letters of Credit issued by
such Issuing Bank during the previous week and drawings during such week under
all Letters of Credit issued by such Issuing Bank, (B) to each Revolving Credit
Lender on the first Business Day of each month a written report summarizing
issuance and expiration dates of Letters of Credit issued by such Issuing Bank
during the preceding month and drawings during such month under all Letters of
Credit issued by such Issuing Bank and (C) to the Administrative Agent and each
Revolving Credit Lender on the first Business Day of each calendar quarter a
written report setting forth the average daily aggregate Available Amount during
the preceding calendar quarter of all Letters of Credit issued by such Issuing
Bank.
(c) Drawing and Reimbursement. The payment by any Issuing
Bank of a draft drawn under any Letter of Credit shall constitute for all
purposes of this Agreement the making by such Issuing Bank of a Letter of Credit
Advance, which shall be a Base Rate Advance, in the amount of such draft. Upon
written demand by any Issuing Bank with an outstanding Letter of Credit Advance,
with a copy of such demand to the Administrative Agent, each Revolving Credit
Lender shall purchase from such Issuing Bank, and such Issuing Bank shall sell
and assign to each such Revolving Credit Lender, such Lender's Pro Rata Share of
such outstanding Letter of Credit Advance as of the date of such purchase, by
making available for the account of its Applicable Lending Office to the
Administrative Agent for the account of such Issuing Bank, by deposit to the
Administrative Agent's Account, in same day funds, an amount equal to the
portion of the outstanding principal amount of such Letter of Credit Advance to
be purchased by such Lender. Promptly after receipt thereof, the Administrative
Agent shall transfer such funds to such Issuing Bank. The Borrower hereby agrees
to each such sale and assignment. Each Revolving Credit Lender agrees to
purchase its Pro Rata Share of an outstanding Letter of Credit Advance on (i)
the Business Day on which demand therefor is made by the Issuing Bank which made
such Advance, provided that notice of such demand is given not later than 11:00
A.M. (New York City time) on such Business Day, or (ii) the first Business Day
next succeeding such demand if notice of such demand is given after such time.
Upon any such assignment by an Issuing Bank to any Revolving Credit Lender of a
portion of a Letter of Credit Advance, such Issuing Bank represents and warrants
to such other Lender that such Issuing Bank is the legal and beneficial owner of
such interest being assigned by it, free and clear of any liens, but makes no
other representation or warranty and assumes no responsibility with respect to
such Letter of Credit Advance, the Loan Documents or any Loan Party. If and to
the extent that any Revolving Credit Lender shall not have so made the amount of
such Letter of Credit Advance available to the Administrative Agent, such
Revolving Credit Lender agrees to pay to the Administrative Agent forthwith on
demand such amount together with interest thereon, for each day from the date of
demand by such Issuing Bank until the date such amount is paid to the
Administrative Agent, at the Federal Funds Rate for its account or the account
of such Issuing
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Bank, as applicable. If such Lender shall pay to the Administrative Agent such
amount for the account of such Issuing Bank on any Business Day, such amount so
paid in respect of principal shall constitute a Letter of Credit Advance made by
such Lender on such Business Day for purposes of this Agreement, and the
outstanding principal amount of the Letter of Credit Advance made by such
Issuing Bank shall be reduced by such amount on such Business Day.
(d) Failure to Make Letter of Credit Advances. The failure of
any Lender to make the Letter of Credit Advance to be made by it on the date
specified in Section 2.3(c) shall not relieve any other Lender of its obligation
hereunder to make its Letter of Credit Advance on such date, but no Lender shall
be responsible for the failure of any other Lender to make the Letter of Credit
Advance to be made by such other Lender on such date.
SECTION 2.4. REPAYMENT OF ADVANCES.
(a) Term B Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the Term B Lenders the aggregate
principal amount of the Term B Advances outstanding on the date of this
Agreement on the following dates in the amounts indicated (which amounts shall
be reduced as a result of the application of prepayments in accordance with the
order of priority set forth in Section 2.6):
Date Amount
---- ------
March 31, 2001 $875,000
June 30, 2001 $875,000
September 30, 2001 $875,000
December 31, 2001 $875,000
March 31, 2002 $875,000
June 30, 2002 $875,000
September 30, 2002 $875,000
December 31, 2002 $875,000
March 31, 2003 $875,000
June 30, 2003 $875,000
September 30, 2003 $875,000
December 31, 2003 $42,000,000
March 31, 2004 $42,000,000
June 30, 2004 $42,000,000
September 30, 2004 $42,000,000
December 31, 2004 $42,000,000
March 31, 2005 $42,000,000
June 30, 2005 $42,000,000
September 30, 2005 $43,750,000
provided, however, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the Term B Advances outstanding on such date.
(b) Revolving Credit Advances. The Borrower shall repay to
the Administrative Agent for the ratable account of the Revolving Credit Lenders
on the Termination Date the aggregate outstanding principal amount of the
Revolving Credit Advances then outstanding.
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(c) Letter of Credit Advances.
(i) The Borrower shall repay to the Administrative
Agent for the account of each Issuing Bank and each other Revolving
Credit Lender that has made a Letter of Credit Advance on the earlier of
demand and the Termination Date the outstanding principal amount of each
Letter of Credit Advance made by each of them.
(ii) The Obligations of the Borrower under this
Agreement, any Letter of Credit Agreement and any other agreement or
instrument relating to any Letter of Credit shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of
this Agreement, such Letter of Credit Agreement and such other agreement
or instrument under all circumstances, including the following
circumstances (it being understood that any such payment by the Borrower
is without prejudice to, and does not constitute a waiver of, any rights
the Borrower might have or might acquire as a result of the payment by
any Issuing Bank of any draft or the reimbursement by the Borrower
thereof):
(A) any lack of validity or enforceability of
any Loan Document, any Letter of Credit Agreement, any Letter of
Credit or any other agreement or instrument relating thereto (all
of the foregoing being, collectively, the "L/C Related
Documents");
(B) any change in the time, manner or place
of payment of, or in any other term of, all or any of the
Obligations of the Borrower in respect of any L/C Related
Document or any other amendment or waiver of or any consent to
departure from all or any of the L/C Related Documents;
(C) the existence of any claim, set-off,
defense or other right that the Borrower may have at any time
against any beneficiary or any transferee of a Letter of Credit
(or any Persons for whom any such beneficiary or any such
transferee may be acting), any Issuing Bank or any other Person,
whether in connection with the transactions contemplated by the
L/C Related Documents or any unrelated transaction;
(D) any statement or any other document
presented under a Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
(E) payment by any Issuing Bank under a
Letter of Credit against presentation of a draft or certificate
or other document that does not strictly comply with the terms of
such Letter of Credit;
(F) any exchange, release or non-perfection
of any Collateral or other collateral, or any release or
amendment or waiver of or consent to departure from the
Guaranties or any other guarantee, for all or any of the
Obligations of the Borrower in respect of the L/C Related
Documents; or
(G) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing,
including any other circumstance that might otherwise constitute
a defense available to, or a discharge of, the Borrower or a
guarantor.
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SECTION 2.5. TERMINATION OR REDUCTION OF THE COMMITMENTS.
(a) Optional. The Borrower may, upon at least three Business
Days' notice to the Administrative Agent, terminate in whole or reduce in part
the unused portion of the Letter of Credit Facility and the Unused Revolving
Credit Commitments; provided, however, that each partial reduction of a Facility
(i) shall be in an aggregate amount of $2,500,000 or an integral multiple of
$500,000 in excess thereof and (ii) shall be made ratably among the Appropriate
Lenders in accordance with their Commitments with respect to such Facility.
(b) Mandatory.
(i) Upon each repayment or prepayment of the Term B
Advances, the aggregate Term B Commitments of the Term B Lenders shall
be automatically and permanently reduced, on a pro rata basis, by an
amount equal to the amount by which the aggregate Term B Commitments
immediately prior to such reduction exceed the aggregate unpaid
principal amount of the Term B Advances then outstanding.
(ii) The Letter of Credit Facility shall be
permanently reduced from time to time on the date of each reduction in
the Revolving Credit Facility by the amount, if any, by which the amount
of the Letter of Credit Facility exceeds the Revolving Credit Facility
after giving effect to such reduction of the Revolving Credit Facility.
SECTION 2.6. PREPAYMENTS.
(a) Optional. The Borrower may, upon at least three Business
Days' notice to the Administrative Agent stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Borrower
shall, prepay the outstanding aggregate principal amount of the Advances
comprising part of the same Borrowing in whole or ratably in part, together with
accrued interest to the date of such prepayment on the aggregate principal
amount prepaid; provided, however, that (x) each partial prepayment shall be in
an aggregate principal amount of $2,500,000 or an integral multiple of $500,000
in excess thereof and (y) if any prepayment of a Eurodollar Rate Advance is made
on a date other than the last day of an Interest Period for such Advance, the
Borrower shall also pay any amounts owing pursuant to Section 8.4(c).
(b) Mandatory.
(i) The Borrower shall, on the 90th day following the
end of each Fiscal Year, prepay an aggregate principal amount of the
Term B Advances comprising part of the same Term B Borrowings equal to
25% of the amount of Excess Cash Flow for such Fiscal Year.
(ii) The Borrower shall, within 3 Business Days of the
date of receipt (or such later date as may be specified in Section
5.2(e)(ii)) of the Net Cash Proceeds by the Borrower or any of its
Restricted Subsidiaries from (A) the sale, lease, transfer or other
disposition of any assets (other than payments of cash or Cash
Equivalents) of the Borrower or any of its Restricted Subsidiaries
(other than any sale, lease, transfer or other disposition of assets
pursuant to clauses (i) and (iii) through (ix) of Section 5.2(e))
(provided that the Borrower shall only be required, on the 180th day
after the date of receipt of such Net Cash Proceeds, to prepay the
Advances in an amount equal to the amount of such Net Cash Proceeds not
reinvested in like-kind assets or fixed assets (which are used in or are
useful to the business of the Borrower at such time) during such
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180-day period), (B) the incurrence or issuance by the Borrower or any
of its Restricted Subsidiaries of any Debt (except Debt incurred or
issued pursuant to clauses (i) through (iv) and clauses (vi) through
(xii) of Section 5.2(b)), (C) any Extraordinary Receipt received by or
paid to or for the account of the Borrower or any of its Restricted
Subsidiaries and not otherwise included in clause (A) above, prepay an
aggregate principal amount of the Term B Advances comprising part of the
same Term B Borrowings equal to 100% of such Net Cash Proceeds;
provided, however, that if such Net Cash Proceeds arise from the
incurrence or issuance of Subordinated Debt pursuant to Section
5.2(b)(v), only 50% of such Net Cash Proceeds shall be required to be
applied to the Term B Advances in accordance with this clause (b)(ii).
(iii) The Borrower shall, on each Business Day, prepay
an aggregate principal amount of the Revolving Credit Advances
comprising part of the same Borrowings and the Letter of Credit Advances
equal to the amount by which (A) the sum of the aggregate principal
amount of (x) the Revolving Credit Advances and (y) the Letter of Credit
Advances then outstanding plus the aggregate Available Amount of all
Letters of Credit then outstanding exceeds (B) the lesser of the
Revolving Credit Facility and the Loan Value of Eligible Collateral on
such Business Day.
(iv) The Borrower shall, on each Business Day, pay to
the Administrative Agent for deposit in the L/C Collateral Account an
amount sufficient to cause the aggregate amount on deposit in such
Account to equal the amount by which the aggregate Available Amount of
all Letters of Credit then outstanding exceeds the Letter of Credit
Facility on such Business Day.
(v) Prepayments of the Revolving Credit Facility made
pursuant to clause (iii) or (iv) above shall be first applied to prepay
Letter of Credit Advances then outstanding until such Advances are paid
in full and second applied to prepay Revolving Credit Advances then
outstanding comprising part of the same Borrowings until such Advances
are paid in full and third deposited in the L/C Collateral Account to
cash collateralize 100% of the Available Amount of the Letters of Credit
then outstanding. Upon the drawing of any Letter of Credit for which
funds are on deposit in the L/C Collateral Account, such funds shall be
applied to reimburse the relevant Issuing Bank or Revolving Credit
Lenders, as applicable.
(vi) Anything contained in this Section 2.6(b) to the
contrary notwithstanding, (A) if, following the occurrence of any "Asset
Sale" (as such term is defined in any Indenture, if applicable) by any
Loan Party or any of its Subsidiaries, the Borrower is required to
commit by a particular date (a "Commitment Date") to apply or cause its
Subsidiaries to apply an amount equal to any of the "Net Proceeds" (as
such term is defined in such Indenture, if applicable) thereof in a
particular manner, or to apply by a particular date (an "Application
Date") an amount equal to any such "Net Proceeds" in a particular
manner, in either case in order to excuse the Borrower from being
required to make an "Asset Sale Offer" (as such term is defined in such
Indenture, if applicable) in connection with such "Asset Sale," and the
Borrower shall have failed to so commit or to so apply an amount equal
to such "Net Proceeds" at least 60 days before the applicable Commitment
Date or Application Date, as the case may be, or (B) if the Borrower at
any other time shall have failed to apply or commit or cause to be
applied an amount equal to any such "Net Proceeds," and, within 60 days
thereafter assuming no further application or commitment of an amount
equal to such "Net Proceeds" the Borrower would otherwise be required to
make an "Asset Sale Offer" in respect thereof, then in either such case
the Borrower shall immediately apply or cause to be applied an amount
equal to
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such "Net Proceeds" to the payment of the Advances in the manner set
forth in Section 2.6(b)(ii) in such amounts as shall excuse the Borrower
from making any such "Asset Sale Offer."
(vii) All prepayments under this subsection (b) shall
be made together with accrued interest to the date of such prepayment on
the principal amount prepaid.
(c) Application. Each prepayment under the Term B Facility
will be applied to remaining installments of the Term B Advances under Section
2.4(a) on a pro rata basis.
SECTION 2.7. INTEREST.
(a) Scheduled Interest. The Borrower shall pay interest on
the unpaid principal amount of each Advance owing to each Lender from the date
of such Advance until such principal amount shall be paid in full, at the
following rates per annum:
(i) Base Rate Advances. During such periods as such
Advance is a Base Rate Advance, a rate per annum equal at all times to
the sum of (A) the Base Rate in effect from time to time plus (B) the
Applicable Margin in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December
during such periods and on the date such Base Rate Advance shall be
Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as
such Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (A) the
Eurodollar Rate for such Interest Period for such Advance plus (B) the
Applicable Margin in effect on the first day of such Interest Period,
payable in arrears on the last day of such Interest Period and, if such
Interest Period has a duration of more than three months, on each day
that occurs during such Interest Period every three months from the
first day of such Interest Period and on the date such Eurodollar Rate
Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default, the Administrative Agent may, and upon the
request of the Required Lenders shall, require that the Borrower pay interest on
(i) the unpaid principal amount of each Advance owing to each Lender, payable in
arrears on the dates referred to in clause (a)(i) or (a)(ii) above and on
demand, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on such Advance pursuant to clause (a)(i) or
(a)(ii) above and (ii) to the fullest extent permitted by law, the amount of any
interest, fee or other amount payable under the Loan Documents that is not paid
when due, from the date such amount shall be due until such amount shall be paid
in full, payable in arrears on the date such amount shall be paid in full and on
demand, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid, in the case of interest, on the Type of Advance
on which such interest has accrued pursuant to clause (a)(i) or (a)(ii) above
and, in all other cases, on Base Rate Advances pursuant to clause (a)(i) above,
provided, however, that, following acceleration of the advances pursuant to
Section 6.1, interest shall accrue and be payable at the rate required by this
Section 2.7(b) whether or not requested by the Administrative Agent or the
Required Lenders.
(c) Notice of Interest Rate. Promptly after receipt of a
Notice of Borrowing pursuant to Section 2.2(a), a notice of Conversion pursuant
to Section 2.9 or a notice of selection of an Interest Period pursuant to the
terms of the definition of "Interest Period," the Administrative Agent shall
give notice to the Borrower and each Appropriate Lender of the
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applicable Interest Period and the applicable interest rate determined by the
Administrative Agent for purposes of clause (a)(i) or (a)(ii) above.
SECTION 2.8. FEES.
(a) Commitment Fee. The Borrower shall pay to the
Administrative Agent for the account of the Lenders a commitment fee, from the
Effective Date in the case of each Initial Lender and from the effective date
specified in the Assumption Agreement or in the Assignment and Acceptance
pursuant to which it became a Lender in the case of each other Lender until the
Termination Date, payable in arrears quarterly on the last day of each March,
June, September and December, commencing March 31, 2001, and on the Termination
Date, at the rate of 1/2 of 1% per annum on the actual daily Unused Revolving
Credit Commitment of such Lender; provided, however, that any commitment fee
accrued with respect to any of the Commitments of a Defaulting Lender during the
period prior to the time such Lender became a Defaulting Lender and unpaid at
such time shall not be payable by the Borrower so long as such Lender shall be a
Defaulting Lender except to the extent that such commitment fee shall otherwise
have been due and payable by the Borrower prior to such time; and provided
further that no commitment fee shall accrue on any of the Commitments of a
Defaulting Lender so long as such Lender shall be a Defaulting Lender.
(b) Letter of Credit Fees, Etc.
(i) The Borrower shall pay to the Administrative
Agent for the account of each Revolving Credit Lender a commission,
payable in arrears quarterly on the last day of each March, June,
September and December, commencing March 31, 2001, and on the earliest
to occur of the full drawing, expiration, termination or cancellation of
any Letter of Credit and on the Termination Date, on such Lender's Pro
Rata Share of the actual daily aggregate Available Amount during such
quarter of all Letters of Credit outstanding from time to time at the
rate per annum equal to the Applicable Margin then in effect for
Revolving Credit Advances that are Eurodollar Rate Advances (including
default interest, if any).
(ii) The Borrower shall pay to each Issuing Bank, for
its own account, (A) a fronting fee, payable in arrears quarterly on the
last day of each March, June, September and December, commencing March
31, 2001, and on the Termination Date, on the average daily amount of
its Letter of Credit Commitment during such quarter, from the Effective
Date until the Termination Date, at the rate of 0.25% per annum and an
issuance fee for each Letter of Credit issued by such Issuing Bank in an
amount equal to 0.25% of the Available Amount of such Letter of Credit
on the date of issuance of such Letter of Credit, payable on such date;
provided that, in no event shall such issuance fee be less than $500,
(B) such other commissions, transfer fees and other fees and charges in
connection with the issuance or administration of each Letter of Credit
as the Borrower and such Issuing Bank shall agree.
(iii) Agents' Fees. The Borrower shall pay to each
Agent for its own account such fees as may from time to time be agreed
between the Borrower and such Agent.
SECTION 2.9. CONVERSION OF ADVANCES.
(a) Optional. The Borrower may on any Business Day, upon
notice given to the Administrative Agent not later than 11:00 A.M. (New York
City time) on the third Business
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Day prior to the date of the proposed Conversion and subject to the provisions
of Section 2.10, Convert all or any portion of the Advances of one Type
comprising the same Borrowing into Advances of the other Type; provided,
however, that any Conversion of Eurodollar Rate Advances into Base Rate Advances
shall be made only on the last day of an Interest Period for such Eurodollar
Rate Advances, any Conversion of Base Rate Advances into Eurodollar Rate
Advances shall be in an amount not less than the minimum amount specified in
Section 2.2(b), no Conversion of any Advances shall result in more separate
Borrowings than permitted under Section 2.2(b) and each Conversion of Advances
comprising part of the same Borrowing under any Facility shall be made ratably
among the Appropriate Lenders in accordance with their Commitments under such
Facility. Each such notice of Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion, (ii) the Advances to
be Converted and (iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for such Advances. Each notice of
Conversion shall be irrevocable and binding on the Borrower.
(b) Mandatory.
(i) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any Borrowing
shall be reduced, by payment or prepayment or otherwise, to less than
$2,500,000, such Advances shall automatically Convert into Base Rate
Advances.
(ii) If the Borrower shall fail to select the duration
of any Interest Period for any Eurodollar Rate Advances in accordance
with the provisions contained in the definition of "Interest Period" in
Section 1.1, the Administrative Agent will forthwith so notify the
Borrower and the Appropriate Lenders, whereupon each such Eurodollar
Rate Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance.
(iii) Upon the occurrence and during the continuance of
a Default under Section 6.1(a) or 6.1(f) or any Event of Default, (x)
each Eurodollar Rate Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate Advance
and (y) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended.
SECTION 2.10. INCREASED COSTS, ETC.
(a) If, due to either (i) the introduction of or any change
in or in the interpretation of any law or regulation or (ii) the compliance with
any guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to any Lender Party of agreeing to make or of making, funding or
maintaining Eurodollar Rate Advances or of agreeing to issue or of issuing or
maintaining or participating in Letters of Credit or of agreeing to make or of
making or maintaining Letter of Credit Advances (excluding, for purposes of this
Section 2.10, any such increased costs resulting from (x) Taxes or Other Taxes
(as to which Section 2.12 shall govern) and (y) changes in the basis of taxation
of overall net income or overall gross income by the United States or by the
foreign jurisdiction or state under the laws of which such Lender Party is
organized or has its Applicable Lending Office or any political subdivision
thereof), then the Borrower shall from time to time, upon demand by such Lender
Party (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender Party additional amounts
sufficient to compensate such Lender Party for such increased cost. A
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certificate as to the amount of such increased cost, submitted to the Borrower
by such Lender Party, shall be conclusive and binding for all purposes, absent
manifest error.
(b) If any Lender Party determines that compliance with any
law or regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender Party or any corporation controlling such Lender Party and that the
amount of such capital is increased by or based upon the existence of such
Lender Party's commitment to lend or to issue or participate in Letters of
Credit hereunder and other commitments of such type or the issuance or
maintenance of or participation in the Letters of Credit (or similar contingent
obligations), then, upon demand by such Lender Party (with a copy of such demand
to the Administrative Agent), the Borrower shall pay to the Administrative Agent
for the account of such Lender Party, from time to time as specified by such
Lender Party, additional amounts sufficient to compensate such Lender Party in
the light of such circumstances, to the extent that such Lender Party reasonably
determines such increase in capital to be allocable to the existence of such
Lender Party's commitment to lend or to issue or participate in Letters of
Credit hereunder or to the issuance or maintenance of or participation in any
Letters of Credit. A certificate as to such amounts submitted to the Borrower by
such Lender Party shall be conclusive and binding for all purposes, absent
manifest error.
(c) If, with respect to any Eurodollar Rate Advances under
any Facility, Lenders owed at least 50% of the then aggregate unpaid principal
amount thereof notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Lenders of making, funding or maintaining their Eurodollar Rate Advances for
such Interest Period, the Administrative Agent shall forthwith so notify the
Borrower and the Appropriate Lenders, whereupon (i) each such Eurodollar Rate
Advance under such Facility will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance and (ii) the
obligation of the Appropriate Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent shall
notify the Borrower that such Lenders have determined that the circumstances
causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if
the introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
then, on notice thereof and demand therefor by such Lender to the Borrower
through the Administrative Agent, (i) each Eurodollar Rate Advance under each
Facility under which such Lender has a Commitment will automatically, upon such
demand, Convert into a Base Rate Advance and (ii) the obligation of the
Appropriate Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrower that such Lender has determined that the circumstances causing such
suspension no longer exist.
SECTION 2.11. PAYMENTS AND COMPUTATIONS.
(a) The Borrower shall make each payment hereunder and under
the Notes, irrespective of any right of counterclaim or set-off (except as
otherwise provided in Section 2.15), not later than 11:00 A.M. (New York City
time) on the day when due in U.S. dollars to the Administrative Agent at the
Administrative Agent's Account in same day funds, with payments being received
by the Administrative Agent after such time being deemed to have been received
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on the next succeeding Business Day. The Administrative Agent will promptly
thereafter cause like funds to be distributed (i) if such payment by the
Borrower is in respect of principal, interest, commitment fees or any other
Obligation then payable hereunder and under the Notes to more than one Lender
Party, to such Lender Parties for the account of their respective Applicable
Lending Offices ratably in accordance with the amounts of such respective
Obligations then payable to such Lender Parties and (ii) if such payment by the
Borrower is in respect of any Obligation then payable hereunder to one Lender
Party, to such Lender Party for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this Agreement. Upon its
acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 8.7(d), from and after the
effective date of such Assignment and Acceptance, the Administrative Agent shall
make all payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender Party assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender Party, if and
to the extent payment owed to such Lender Party is not made when due hereunder
or, in the case of a Lender, under the Note held by such Lender, to charge from
time to time against any or all of the Borrower's accounts with such Lender
Party any amount so due.
(c) All computations of interest based on the Base Rate shall
be made by the Administrative Agent on the basis of a year of 365 or 366 days,
as the case may be, and all computations of interest based on the Eurodollar
Rate or the Federal Funds Rate and of fees and Letter of Credit commissions
shall be made by the Administrative Agent on the basis of a year of 360 days, in
each case for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest, fees or
commissions are payable. Each determination by the Administrative Agent of an
interest rate, fee or commission hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall
be stated to be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or commitment
fee or Letter of Credit fee, as the case may be; provided, however, that, if
such extension would cause payment of interest on or principal of Eurodollar
Rate Advances to be made in the next following calendar month, such payment
shall be made on the next preceding Business Day.
(e) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due to any
Lender Party hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender Party
on such due date an amount equal to the amount then due such Lender Party. If
and to the extent the Borrower shall not have so made such payment in full to
the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at the Federal Funds Rate.
(f) If the Administrative Agent receives funds for
application to the Obligations under the Loan Documents under circumstances for
which the Loan Documents do
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not specify the Advances or the Facility to which, or the manner in which, such
funds are to be applied, the Administrative Agent may, but shall not be
obligated to, elect to distribute such funds to each Lender Party ratably in
accordance with such Lender Party's proportionate share of the principal amount
of all outstanding Advances and the Available Amount of all Letters of Credit
then outstanding, in repayment or prepayment of such of the outstanding Advances
or other Obligations owed to such Lender Party, and for application to such
principal installments, as the Administrative Agent shall direct.
SECTION 2.12. TAXES.
(a) Except as otherwise provided herein, any and all payments
by the Borrower hereunder or under the Notes shall be made, in accordance with
Section 2.11, free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender Party
and each Agent, taxes that are imposed on its overall net income by the United
States and taxes that are imposed on its overall net income (and franchise taxes
imposed in lieu thereof) by the state or foreign jurisdiction under the laws of
which such Lender Party or such Agent, as the case may be, is organized or any
political subdivision thereof and, in the case of each Lender Party, taxes that
are imposed on its overall net income (and franchise taxes imposed in lieu
thereof) by the state or foreign jurisdiction of such Lender Party's Applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities in
respect of payments hereunder or under the Notes being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder or under any Note to any Lender Party
or any Agent, (i) the sum payable by the Borrower shall be increased as may be
necessary so that after the Borrower and the Administrative Agent have made all
required deductions (including deductions applicable to additional sums payable
under this Section 2.12) such Lender Party or such Agent, as the case may be,
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make all such deductions and (iii)
the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future
stamp, documentary, excise, property or similar taxes, charges or levies that
arise from any payment made hereunder or under the Notes or from the execution,
delivery or registration of, performance under, or otherwise with respect to,
this Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) Except as otherwise provided herein, the Borrower shall
indemnify each Lender Party and each Agent for and hold them harmless against
the full amount of Taxes and Other Taxes, and for the full amount of taxes of
any kind imposed by any jurisdiction on amounts payable under this Section 2.12,
imposed on or paid by such Lender Party or such Agent (as the case may be) and
any liability (including penalties, additions to tax, interest and expenses,
except to the extent that such penalties, additions, interest and expenses
accrue as a result of the failure of the relevant Lender Party or Agent to
demand payment from the Borrower within 30 days of it becoming aware of the
circumstances which entitle it to make such demand) arising therefrom or with
respect thereto. This indemnification shall be made within 30 days from the date
such Lender Party or such Agent (as the case may be) makes written demand
therefor.
(d) Within 30 days after the date of any payment of Taxes,
the Borrower shall furnish to the Administrative Agent, at its address referred
to in Section 8.2, the original or a certified copy of a receipt evidencing such
payment. In the case of any payment hereunder or
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under the Notes by or on behalf of the Borrower through an account or branch
outside the United States or by or on behalf of the Borrower by a payor that is
not a United States person, if the Borrower determines that no Taxes are payable
in respect thereof, the Borrower shall furnish, or shall cause such payor to
furnish, to the Administrative Agent, at such address, an opinion of counsel
acceptable to the Administrative Agent stating that such payment is exempt from
Taxes. For purposes of subsections (d) and (e) of this Section 2.12, the terms
"United States" and "United States person" shall have the meanings specified in
Section 7701 of the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a
jurisdiction outside the United States shall, on or prior to the date of its
execution and delivery of this Agreement in the case of each Initial Lender or
Initial Issuing Bank, as the case may be, and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender Party in the case of each other
Lender Party, and from time to time thereafter as requested in writing by the
Borrower (but only so long thereafter as such Lender Party remains lawfully able
to do so), provide each of the Administrative Agent and the Borrower with two
original Internal Revenue Service forms W-8ECI or W-8BEN (and, if such Lender
Party delivers a form W-8BEN, a certificate representing that such Lender Party
is not a "bank" for purposes of Section 881(c) of the Internal Revenue Code, is
not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Internal Revenue Code) of the Borrower and is not a controlled foreign
corporation related to the Borrower (within the meaning of Section 864(d)(4) of
the Internal Revenue Code)), as appropriate, or any successor or other form
prescribed by the Internal Revenue Service, certifying that such Lender Party is
exempt from or entitled to a reduced rate of United States withholding tax on
payments pursuant to this Agreement or the Notes or, in the case of a Lender
Party providing a form W-8BEN, certifying that such Lender Party is a foreign
corporation, partnership, estate or trust. If the forms provided by a Lender
Party at the time such Lender Party first becomes a party to this Agreement
indicate a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from Taxes unless and
until such Lender Party provides the appropriate forms certifying that a lesser
rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such forms; provided,
however, that if, at the effective date of the Assignment and Acceptance
pursuant to which a Lender Party becomes a party to this Agreement, the Lender
Party assignor was entitled to payments under subsection (a) of this Section
2.12 in respect of United States withholding tax with respect to interest paid
at such date, then, to such extent, the term Taxes shall include (in addition to
withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any, applicable with
respect to the Lender Party assignee on such date. If any form or document
referred to in this subsection (e) requires the disclosure of information, other
than information necessary to compute the tax payable and information required
on the Effective Date by Internal Revenue Service form W-8BEN or W-8ECI (or the
related certificate described above), that the Lender Party reasonably considers
to be confidential, the Lender Party shall give notice thereof to the Borrower
and shall not be obligated to include in such form or document such confidential
information.
(f) For any period with respect to which a Lender Party has
failed to provide the Borrower with the appropriate form described in subsection
(e) above (other than if such failure is due to a change in law occurring after
the date on which a form originally was required to be provided or if such form
otherwise is not required under subsection (e) above), such Lender Party shall
not be entitled to indemnification under subsection (a) or (c) of this Section
2.12 with respect to Taxes imposed by the United States by reason of such
failure; provided, however, that should a Lender Party become subject to Taxes
because of its failure to deliver a form required
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hereunder, the Borrower shall take such steps as such Lender Party shall
reasonably request to assist such Lender Party to recover such Taxes.
(g) Any Lender Party claiming any additional amounts payable
pursuant to this Section 2.12 agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender Party, be otherwise disadvantageous to such Lender Party.
(h) The Borrower may replace any Lender Party that has
requested additional amounts from such Borrower under this Section 2.12, by
written notice to such Lender Party and the Administrative Agent and identifying
one or more persons each of which shall be reasonably acceptable to the
Administrative Agent (each, a "Replacement Lender Party," and collectively, the
"Replacement Lender Parties") to replace such Lender Party (the "Replaced Lender
Party"); provided that (i) the notice from such Borrower to the Replaced Lender
Party and the Administrative Agent provided for hereinabove shall specify an
effective date for such replacement (the "Replacement Effective Date"), which
shall be at least five (5) Business Days after such notice is given and (ii) as
of the relevant Replacement Effective Date, each Replacement Lender Party shall
enter into an Assignment and Acceptance with the Replaced Lender Party pursuant
to Section 8.7(a) (but shall not be required to pay the processing fee otherwise
payable to the Administrative Agent pursuant to Section 8.7(a)), pursuant to
which such Replacement Lender Parties collectively shall acquire, in such
proportion among them as they may agree with such Borrower and the
Administrative Agent, all (but not less than all) of the Commitments and
outstanding Advances of the Replaced Lender Party, and, in connection therewith,
shall pay to the Replaced Lender Party, as the purchase price in respect
thereof, an amount equal to the sum as of the Replacement Effective Date,
without duplication, of (x) the unpaid principal amount of, and all accrued but
unpaid interest on, all outstanding Advances of the Replaced Lender Party and
(y) the Replaced Lender Party's ratable share of all accrued but unpaid fees
owing to the Replaced Lender Party hereunder.
SECTION 2.13. SHARING OF PAYMENTS, ETC. If any Lender Party shall
obtain at any time any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise, other than as a result of an
assignment pursuant to Section 8.7) (a) on account of Obligations due and
payable to such Lender Party hereunder and under the Notes at such time in
excess of its ratable share (according to the proportion of (i) the amount of
such Obligations due and payable to such Lender Party at such time to (ii) the
aggregate amount of the Obligations due and payable to all Lender Parties
hereunder and under the Notes at such time) of payments on account of the
Obligations due and payable to all Lender Parties hereunder and under the Notes
at such time obtained by all the Lender Parties at such time or (b) on account
of Obligations owing (but not due and payable) to such Lender Party hereunder
and under the Notes at such time in excess of its ratable share (according to
the proportion of (i) the amount of such Obligations owing to such Lender Party
at such time to (ii) the aggregate amount of the Obligations owing (but not due
and payable) to all Lender Parties hereunder and under the Notes at such time)
of payments on account of the Obligations owing (but not due and payable) to all
Lender Parties hereunder and under the Notes at such time obtained by all of the
Lender Parties at such time, such Lender Party shall forthwith purchase from the
other Lender Parties such interests or participating interests in the
Obligations due and payable or owing to them, as the case may be, as shall be
necessary to cause such purchasing Lender Party to share the excess payment
ratably with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender Party, such
purchase from each other Lender
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Party shall be rescinded and such other Lender Party shall repay to the
purchasing Lender Party the purchase price to the extent of such Lender Party's
ratable share (according to the proportion of (i) the purchase price paid to
such Lender Party to (ii) the aggregate purchase price paid to all Lender
Parties) of such recovery together with an amount equal to such Lender Party's
ratable share (according to the proportion of (i) the amount of such other
Lender Party's required repayment to (ii) the total amount so recovered from the
purchasing Lender Party) of any interest or other amount paid or payable by the
purchasing Lender Party in respect of the total amount so recovered; provided
further that, so long as the Obligations under the Loan Documents shall not have
been accelerated, any excess payment received by any Appropriate Lender shall be
shared on a pro rata basis only with other Appropriate Lenders. The Borrower
agrees that any Lender Party so purchasing an interest or participating interest
from another Lender Party pursuant to this Section 2.13 may, to the fullest
extent permitted by law, exercise all its rights of payment (including the right
of set-off) with respect to such interest or participating interest as fully as
if such Lender Party were the direct creditor of the Borrower in the amount of
such interest or participating interest.
SECTION 2.14. USE OF PROCEEDS. The Revolving Credit Advances and
the issuances of the Letters of Credit from and after the Effective Date shall
be made available (and the Borrower agrees that it shall use the proceeds
thereof and such Letters of Credit) for general corporate purposes of the
Borrower and its Restricted Subsidiaries to the extent permitted under this
Agreement.
SECTION 2.15 DEFAULTING LENDERS.
(a) In the event that, at any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted
Advance to the Borrower and (iii) the Borrower shall be required to make any
payment hereunder or under any other Loan Document to or for the account of such
Defaulting Lender, then the Borrower may, so long as no Default shall occur or
be continuing at such time and to the fullest extent permitted by applicable
law, set off and otherwise apply the Obligation of the Borrower to make such
payment to or for the account of such Defaulting Lender against the obligation
of such Defaulting Lender to make such Defaulted Advance. In the event that, on
any date, the Borrower shall so set off and otherwise apply its obligation to
make any such payment against the obligation of such Defaulting Lender to make
any such Defaulted Advance on or prior to such date, the amount so set off and
otherwise applied by the Borrower shall constitute for all purposes of this
Agreement and the other Loan Documents an Advance by such Defaulting Lender made
on the date of such setoff under the Facility pursuant to which such Defaulted
Advance was originally required to have been made pursuant to Section 2.1. Such
Advance shall be considered, for all purposes of this Agreement, to comprise
part of the Borrowing in connection with which such Defaulted Advance was
originally required to have been made pursuant to Section 2.1, even if the other
Advances comprising such Borrowing shall be Eurodollar Rate Advances on the date
such Advance is deemed to be made pursuant to this subsection (a). The Borrower
shall notify the Administrative Agent at any time the Borrower exercises its
right of set-off pursuant to this subsection (a) and shall set forth in such
notice (A) the name of the Defaulting Lender and the Defaulted Advance required
to be made by such Defaulting Lender and (B) the amount set off and otherwise
applied in respect of such Defaulted Advance pursuant to this subsection (a).
Any portion of such payment otherwise required to be made by the Borrower to or
for the account of such Defaulting Lender which is paid by the Borrower, after
giving effect to the amount set off and otherwise applied by the Borrower
pursuant to this subsection (a), shall be applied by the Administrative Agent as
specified in subsection (b) or (c) of this Section 2.15.
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(b) In the event that, at any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted
Amount to any Agent or any of the other Lender Parties and (iii) the Borrower
shall make any payment hereunder or under any other Loan Document to the
Administrative Agent for the account of such Defaulting Lender, then the
Administrative Agent may, on its behalf or on behalf of such other Agents or
such other Lender Parties and to the fullest extent permitted by applicable law,
apply at such time the amount so paid by the Borrower to or for the account of
such Defaulting Lender to the payment of each such Defaulted Amount to the
extent required to pay such Defaulted Amount. In the event that the
Administrative Agent shall so apply any such amount to the payment of any such
Defaulted Amount on any date, the amount so applied by the Administrative Agent
shall constitute for all purposes of this Agreement and the other Loan Documents
payment, to such extent, of such Defaulted Amount on such date. Any such amount
so applied by the Administrative Agent shall be retained by the Administrative
Agent or distributed by the Administrative Agent to such other Agents or such
other Lender Parties, ratably in accordance with the respective portions of such
Defaulted Amounts payable at such time to the Administrative Agent, such other
Agents and such other Lender Parties and, if the amount of such payment made by
the Borrower shall at such time be insufficient to pay all Defaulted Amounts
owing at such time to the Administrative Agent, such other Agents and such other
Lender Parties, in the following order of priority:
(i) first, to the Administrative Agent for any
Defaulted Amounts then owing to the Administrative Agent, ratably in
accordance with such respective Defaulted Amounts then owing to
Administrative Agent;
(ii) second, to the Issuing Banks for any Defaulted
Amounts then owing to them, in their capacities as such, ratably in
accordance with such respective Defaulted Amounts then owing to such
Issuing Banks; and
(iii) third, to any other Lender Parties for any
Defaulted Amounts then owing to such other Lender Parties, ratably in
accordance with such respective Defaulted Amounts then owing to such
other Lender Parties.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall not owe a
Defaulted Advance or a Defaulted Amount and (iii) the Borrower, any Agent or any
other Lender Party shall be required to pay or distribute any amount hereunder
or under any other Loan Document to or for the account of such Defaulting
Lender, then the Borrower or such Agent or such other Lender Party shall pay
such amount to the Administrative Agent to be held by the Administrative Agent,
to the fullest extent permitted by applicable law, in escrow or the
Administrative Agent shall, to the fullest extent permitted by applicable law,
hold in escrow such amount otherwise held by it. Any funds held by the
Administrative Agent in escrow under this subsection (c) shall be deposited by
the Administrative Agent in an account with Citibank, in the name and under the
control of the Administrative Agent, but subject to the provisions of this
subsection (c). The terms applicable to such account, including the rate of
interest payable with respect to the credit balance of such account from time to
time, shall be Citibank's standard terms applicable to escrow accounts
maintained with it. Any interest credited to such account from time to time
shall be held by the Administrative Agent in escrow under, and applied by the
Administrative Agent from time to
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time in accordance with the provisions of, this subsection (c). The
Administrative Agent shall, to the fullest extent permitted by applicable law,
apply all funds so held in escrow from time to time to the extent necessary to
make any Advances required to be made by such Defaulting Lender and to pay any
amount payable by such Defaulting Lender hereunder and under the other Loan
Documents to the Administrative Agent or any other Lender Party, as and when
such Advances or amounts are required to be made or paid and, if the amount so
held in escrow shall at any time be insufficient to make and pay all such
Advances and amounts required to be made or paid at such time, in the following
order of priority:
(i) first, to the Administrative Agent for any
amounts then due and payable by such Defaulting Lender to the
Administrative Agent hereunder, ratably in accordance with such amounts
then due and payable to the Administrative Agent;
(ii) second, to the Issuing Banks for any amounts then
due and payable to them hereunder, in their capacities as such, by such
Defaulting Lender, ratably in accordance with such amounts then due and
payable to such Issuing Banks;
(iii) third, to any other Lender Parties for any amount
then due and payable by such Defaulting Lender to such other Lender
Parties hereunder, ratably in accordance with such respective amounts
then due and payable to such other Lender Parties; and
(iv) fourth, to the Borrower for any Advance then
required to be made by such Defaulting Lender pursuant to a Commitment
of such Defaulting Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under
this Section 2.15 are in addition to other rights and remedies that the Borrower
may have against such Defaulting Lender with respect to any Defaulted Advance
and that any Agent or any Lender Party may have against such Defaulting Lender
with respect to any Defaulted Amount.
SECTION 2.16. EVIDENCE OF DEBT.
(a) The Borrower agrees that upon notice by any Lender to the
Borrower (with a copy of such notice to the Administrative Agent) to the effect
that a Note is required or appropriate in order for such Lender to evidence
(whether for purposes of pledge, enforcement or otherwise) the Advances owing
to, or to be made by, such Lender, the Borrower shall promptly execute and
deliver to such Lender a Note payable to the order of such Lender in a principal
amount up to the Commitment of such Lender. Each Lender that does not receive a
Note pursuant to the preceding sentence shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness of the
Borrower to such Lender resulting from each Advance owing to such Lender from
time to time, including the amounts of principal and interest payable and paid
to such Lender from time to time hereunder in respect of such Advances.
(b) The Register maintained by the Administrative Agent
pursuant to Section 8.7(d) shall include a control account and a subsidiary
account for each Lender, in which
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accounts (taken together) shall be recorded (i) the date and amount of each
Borrowing made hereunder, the Type of Advances comprising such Borrowing and, if
appropriate, the Interest Period applicable thereto, (ii) the terms of each
Assignment and Acceptance delivered to and accepted by it, (iii) the amount of
any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iv) the amount of any sum received by the
Administrative Agent from the Borrower hereunder and each Lender's share
thereof.
(c) Entries made in good faith by the Administrative Agent in
the Register pursuant to subsection (b) above, and by each Lender in its account
or accounts pursuant to subsection (a) above, shall be prima facie evidence of
the amount of principal and interest due and payable or to become due and
payable from the Borrower to, in the case of the Register, each Lender and, in
the case of such account or accounts, such Lender, under this Agreement, absent
manifest error; provided, however, that the failure of the Administrative Agent
or such Lender to make an entry, or any finding that an entry is incorrect, in
the Register or such account or accounts shall not limit or otherwise affect the
obligations of the Borrower under this Agreement.
(d) Any reference to a Note or Notes made in this Agreement
shall be a reference to a Note or Notes only to the extent such Note or Notes
have been requested and issued pursuant to subsection (a) above.
SECTION 2.17. INCREASE IN THE AGGREGATE COMMITMENTS.
(a) The Borrower may, at any time prior to the Termination
Date, by notice to the Administrative Agent, request the addition of a new
facility pursuant to an increase in the Commitments (each, a "Commitment
Increase") equal to $50,000,000 (or an integral multiple of $10,000,000 in
excess thereof) to be effective as of a date that is at least 90 days prior to
the scheduled Termination Date then in effect (the "Increase Date") as specified
in the related notice to the Administrative Agent; provided, however, that (i)
in no event shall the aggregate amount of all of the Commitment Increases exceed
$100,000,000, (ii) on the date of any request by the Borrower for a Commitment
Increase and on the related Increase Date, the applicable conditions set forth
in Section 3.2 and in clause (d) of this Section 2.17 shall be satisfied, (iii)
the Borrower will only be able to make one request hereunder, (iv) the final
maturity of the Advances and Commitments under any such new facility shall be no
shorter than the final maturity of the Term B Facility and (v) such new facility
shall contain other terms as may be agreed by the Borrower and the Agents.
(b) The Administrative Agent shall promptly notify the
Lenders of a request by the Borrower for a Commitment Increase, which notice
shall include (i) the proposed amount of such requested Commitment Increase,
(ii) the proposed Increase Date and (iii) the date by which Lenders wishing to
participate in the Commitment Increase must commit to an increase in the amount
of their respective Commitments (the "Commitment Date"). Each Lender that is
willing to participate in the requested Commitment Increase (each an "Increasing
Lender") shall, in its sole discretion, give written notice to the
Administrative Agent on or prior to the Commitment Date of the amount by which
it is willing to increase its Commitment. If the Lenders notify the
Administrative Agent that they are willing to increase the amount of their
respective Commitments by an aggregate amount that exceeds the amount of the
requested Commitment Increase, the requested Commitment Increase shall be
allocated among the Lenders willing to participate therein in such amounts as
are agreed between the Borrower and the Administrative Agent.
(c) Promptly following the Commitment Date, the
Administrative Agent shall notify the Borrower as to the amount, if any, by
which the Lenders are willing to participate
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in the requested Commitment Increase. If the aggregate amount by which the
Lenders are willing to participate in the requested Commitment Increase on any
such Commitment Date is less than the requested Commitment Increase, then the
Borrower may extend offers to one or more Eligible Assignees to participate in
any portion of the requested Commitment Increase that has not been committed to
by the Lenders as of the Commitment Date; provided, however, that the Commitment
of each such Eligible Assignee shall be in an amount of $2,500,000 or an
integral multiple of $1,000,000 in excess thereof.
(d) On the Increase Date, each Eligible Assignee that accepts
an offer to participate in a requested Commitment Increase in accordance with
Section 2.17(c) (each such Eligible Assignee, an "Assuming Lender") shall become
a Lender party to this Agreement as of the Increase Date and the Commitment of
each Increasing Lender for such Commitment Increase shall be so increased by
such amount (or by the amount allocated to such Lender pursuant to the last
sentence of Section 2.17(b)) as of the Increase Date; provided, however, that
the Administrative Agent shall have received on or before the Increase Date the
following, each dated such date:
(i) (A) certified copies of resolutions of the Board
of Directors of the Borrower approving the Commitment Increase and the
corresponding modifications to this Agreement and (B) an opinion of
counsel for the Borrower (which may be in-house counsel), in a form
reasonably satisfactory to the Administrative Agent;
(ii) an assumption agreement from each Assuming
Lender, if any, in form and substance satisfactory to the Borrower and
the Administrative Agent (each an "Assumption Agreement"), duly executed
by such Eligible Assignee, the Administrative Agent and the Borrower;
and
(iii) confirmation from each Increasing Lender of the
increase in the amount of its Commitment in a writing satisfactory to
the Borrower and the Administrative Agent.
On the Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.17(d), the Administrative Agent
shall notify the Lenders (including each Assuming Lender) and the Borrower, on
or before 1:00 P.M. (New York City time), by telecopier or telex, of the
occurrence of the Commitment Increase to be effected on the Increase Date and
shall record in the Register the relevant information with respect to each
Increasing Lender and each Assuming Lender on such date.
ARTICLE III
CONDITIONS OF LENDING AND
ISSUANCES OF LETTERS OF CREDIT
SECTION 3.1 CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS
AGREEMENT. This Agreement shall become effective on the date (the "Effective
Date") on which all of the following conditions precedent have been first
satisfied:
(a) The Agents shall have received, in form and substance
satisfactory to the Agents (unless otherwise specified) and in sufficient copies
for each Lender Party:
(i) This Agreement, duly executed by the Borrower and
the Required Lenders.
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(ii) The Assignment and Release Agreement, duly
executed by the Existing Administrative Agent, the Existing Collateral
Agent, the Administrative Agent and the Collateral Agent and
acknowledged and agreed to by the Borrower, including executed UCC-3
financing statements, intellectual property assignments and all other
recordings, filings, documents and instruments as may be necessary or
desirable to give effect to assignments set forth therein, together
with:
(A) all certificates representing the Pledged
Shares, undated stock powers or share transfer forms and all
other instruments, certificates, agreements and documents which
are held by the Existing Collateral Agent in respect of the
Collateral; and
(B) evidence that all other action that the
Administrative Agent may deem necessary or desirable in order to
perfect (or continue to perfect) and protect the first priority
Liens created under the Security Agreement and the other
Collateral Documents has been taken.
(iii) The Guaranty and Security Confirmations, duly
executed by each Loan Party.
(iv) Certified copies of the resolutions of the Board
of Directors of each Loan Party approving the transactions contemplated
by this Agreement and of all documents evidencing other necessary
corporate action and governmental and other third party approvals and
consents, if any, with respect to the Transactions and each Transaction
Document to which it is or is to be a party.
(v) A copy of a certificate of the Secretary of State
or other appropriate governmental official of the jurisdiction of
incorporation of each Loan Party, dated reasonably near the Effective
Date, certifying, where applicable, that such Loan Party has paid all
franchise taxes to the date of such certificate and such Loan Party is
duly incorporated and in good standing or presently subsisting under the
laws of the jurisdiction of its incorporation.
(vi) A certificate of each Loan Party, signed on
behalf of such Loan Party by its President or a Vice President and its
Secretary or any Assistant Secretary, dated the Effective Date (the
statements made in which certificate shall be true on and as of the date
of the Effective Date), certifying as to (A) the absence of any
amendments to the charter and bylaws of such Loan Party since the
Initial Closing Date (unless true, complete and up to date copies of any
such amendments are delivered with such certificate), (B) the due
incorporation and good standing or valid existence of such Loan Party as
a corporation organized under the laws of the jurisdiction of its
incorporation, and the absence of any proceeding for the dissolution or
liquidation of such Loan Party, (C) the truth of the representations and
warranties contained in the Loan Documents as though made on and as of
the Effective Date and (D) the absence of any event occurring and
continuing, or resulting from the Transactions, that constitutes a
Default.
(vii) A certificate of the Secretary or an Assistant
Secretary of each Loan Party certifying the names and true signatures of
the officers of such Loan Party authorized to sign each Transaction
Document to which it is or is to be a party and the other documents to
be delivered hereunder and thereunder.
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(viii) Certified copies of each of the Related Documents
(other than those delivered in connection with the Existing Credit
Agreement), duly executed by the parties thereto and in form and
substance satisfactory to the Lender Parties, together with all
agreements, instruments and other documents delivered in connection
therewith as the Administrative Agent shall request.
(ix) Such financial, business and other information
regarding each Loan Party and its Subsidiaries as the Lender Parties
shall have requested.
(x) Evidence of insurance naming the CUSA, as
successor Collateral Agent, as additional insured and loss payee with
such responsible and reputable insurance companies or associations, and
in such amounts and covering such risks, as is satisfactory to the
Lender Parties, including business interruption insurance.
(xi) A favorable opinion of (A) Xxxxxx Xxxxxxx
Xxxxxxxx & Xxxxxx, counsel for the Loan Parties, in form and substance
satisfactory to the Lender Parties, (B) local counsel in the
jurisdictions and from the law firms listed in Schedule III in form and
substance satisfactory to the Lender Parties and (C) Weil, Gotshal &
Xxxxxx LLP, counsel to the Agents, in form and substance satisfactory to
the Agents.
(xii) The Transaction Documents shall not have been
altered, amended or otherwise changed or supplemented in any material
respect or any condition therein waived without the prior written
consent of the Lender Parties; and the Transactions shall have been
consummated in accordance with the terms of the Transaction Documents
and in compliance with applicable law and regulatory approvals.
(xiii) Before giving effect to the Transactions, there
shall have occurred no Material Adverse Change since December 31, 2000.
(xiv) The Borrower shall have paid all accrued fees of
the Agents and the Lender Parties and all accrued expenses of the Agents
(including the accrued fees and expenses of advisors and counsel to the
Agents and local counsel for the Lender Parties).
(xv) The representations and warranties contained in
each Loan Document are correct on and as of the Effective Date as though
made on and as of such date other than any such representations or
warranties that, by their terms, refer to a specific date other than the
Effective Date, in which case as of such specific date.
(xvi) On the Effective Date no event has occurred and
is continuing that constitutes a Default.
SECTION 3.2. CONDITIONS PRECEDENT TO EACH BORROWING AND ISSUANCE
AND RENEWAL. The obligation of each Appropriate Lender to make an Advance (other
than a Letter of Credit Advance made by an Issuing Bank or a Revolving Credit
Lender pursuant to Section 2.3(c)) on the occasion of each Borrowing, each
Commitment Increase, and the obligation of each Issuing Bank to issue a Letter
of Credit or renew a Letter of Credit, shall be subject to the further
conditions precedent that on the date of such Borrowing or the applicable
Increase Date or issuance or renewal (a) the following statements shall be true
(and each of the giving of the applicable Notice of Borrowing, request for
Commitment Increase, Notice of Issuance or Notice of Renewal and the acceptance
by the Borrower of the proceeds of such Borrowing or of such Letter of Credit or
the renewal of such Letter of Credit shall constitute a representation and
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warranty by the Borrower that both on the date of such notice and on the date of
such Borrowing, such Increase Date or issuance or renewal such statements are
true):
(i) the representations and warranties contained in
each Loan Document are correct on and as of such date, before and after
giving effect to such Borrowing, such Increase Date or issuance or
renewal and to the application of the proceeds therefrom, as though made
on and as of such date other than any such representations or warranties
that, by their terms, refer to a specific date other than such
Borrowing, issuance or renewal, in which case as of such specific date;
(ii) no event has occurred and is continuing, or would
result from such Borrowing, such Increase Date or issuance or renewal or
from the application of the proceeds therefrom, that constitutes a
Default; and
(iii) for each Revolving Credit Advance or issuance or
renewal of any Letter of Credit, the sum of the Loan Values of the
Eligible Collateral exceeds the aggregate principal amount of the
Revolving Credit Advances plus Letter of Credit Advances to be
outstanding plus the aggregate Available Amount of all Letters of Credit
to be outstanding after giving effect to such Advance or issuance or
renewal, respectively;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Appropriate Lender through the Administrative Agent
may reasonably request.
SECTION 3.3. DETERMINATIONS UNDER SECTION 3.1. For purposes of
determining compliance with the conditions specified in Section 3.1, each Lender
Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the Effective Date specifying its objection thereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The
Borrower represents and warrants as follows:
(a) Corporate Existence; Corporate Power. Each Loan Party and
each of its Subsidiaries (i) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation,
(ii) is duly qualified and in good standing as a foreign corporation in each
other jurisdiction in which it owns or leases property or in which the conduct
of its business requires it to so qualify or be licensed except where the
failure to so qualify or be licensed could not be reasonably likely to have a
Material Adverse Effect and (iii) has all requisite corporate power and
authority (including all governmental licenses, permits and other approvals) to
own or lease and operate its properties and to carry on its business as now
conducted and as proposed to be conducted. All of the outstanding Equity
Interests in the Borrower have been validly issued and are non-assessable.
(b) Ownership of Subsidiaries. Set forth on Schedule 4.1(b)
is a complete and accurate list of all Subsidiaries of each Loan Party, showing
as of the Effective Date (as to
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each such Subsidiary) the jurisdiction of its incorporation, the number of
shares of each class of its Equity Interests authorized, and the number
outstanding, on the Effective Date and the percentage of each such class of its
Equity Interests owned (directly or indirectly) by such Loan Party and the
number of shares covered by all outstanding options, warrants, rights of
conversion or purchase and similar rights at the Effective Date. All of the
outstanding Equity Interests in each Loan Party's Subsidiaries have been validly
issued, are fully paid and non-assessable and are owned by such Loan Party or
one or more of its Subsidiaries free and clear of all Liens, except those
created under the Collateral Documents. Each Subsidiary of the Borrower which is
a Restricted Subsidiary is a Subsdiary Guarantor, an Intercompany Guarantor or
both.
(c) Authorization; No Conflicts. The execution, delivery and
performance by each Loan Party of each Transaction Document to which it is or is
to be a party, and the consummation of the Transactions, are within such Loan
Party's corporate powers, have been duly authorized by all necessary corporate
action, and do not (i) contravene such Loan Party's charter or bylaws, (ii)
violate any law, rule, regulation (including Regulation U and Regulation X of
the Board of Governors of the Federal Reserve System), order, writ, judgment,
injunction, decree, determination or award, (iii) conflict with or result in the
breach of, or constitute a default under, any contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument binding on or
affecting any Loan Party, any of its Subsidiaries or any of their properties or
(iv) except for the Liens created under the Loan Documents and Permitted Liens,
result in or require the creation or imposition of any Lien upon or with respect
to any of the properties of any Loan Party or any of its Subsidiaries. No Loan
Party or any of its Subsidiaries is in violation of any such law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award or
in breach of any such contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument, the violation or breach of which could be
reasonably likely to have a Material Adverse Effect.
(d) Governmental and Third-Party Approvals. No authorization
or approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or any other third party is required
for (i) the due execution, delivery, recordation, filing or performance by any
Loan Party of any Transaction Document to which it is or is to be a party, or
for the consummation of the Transactions, (ii) the grant by any Loan Party of
the Liens granted by it pursuant to the Collateral Documents, (iii) the
perfection or maintenance of the Liens created under the Collateral Documents
(including the first priority nature thereof) or (iv) the exercise by any Agent
or any Lender Party of its rights under the Loan Documents or the remedies in
respect of the Collateral pursuant to the Collateral Documents, except for the
authorizations, approvals, actions, notices and filings listed on Schedule
4.1(d) hereto, all of which have been duly obtained, taken, given or made and
are in full force and effect. All applicable waiting periods in connection with
the Transactions have expired without any action having been taken by any
competent authority restraining, preventing or imposing materially adverse
conditions upon the Transactions or the rights of the Loan Parties or their
Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien
on, any properties now owned or hereafter acquired by any of them. The
Transactions have been consummated in accordance with the Transaction Documents
and applicable law.
(e) Enforceable Obligations. This Agreement has been, and
each other Transaction Document when delivered hereunder will have been, duly
executed and delivered by each Loan Party party thereto. This Agreement is, and
each other Transaction Document when delivered hereunder will be, the legal,
valid and binding obligation of each Loan Party party thereto, enforceable
against such Loan Party in accordance with its terms.
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(f) Litigation. There is no action, suit, investigation,
litigation or proceeding affecting any Loan Party or any of its Subsidiaries,
including any Environmental Action, pending or threatened before any court,
governmental agency or arbitrator that (i) would be reasonably likely to have a
Material Adverse Effect or (ii) purports to affect the legality, validity or
enforceability of any Transaction Document or the consummation of the
Transactions.
(g) Financial Statements. The Consolidated balance sheet of
the Borrower and its Subsidiaries as at December 31, 2000, and the related
Consolidated statement of income and Consolidated statement of cash flows of the
Borrower and its Subsidiaries for the fiscal year then ended, accompanied by an
unqualified opinion of Xxxxxx Xxxxxxxx, independent public accountants, and the
Consolidated balance sheet of the Borrower and its Subsidiaries as at December
31, 2000, and the related Consolidated statement of income and Consolidated
statement of cash flows of the Borrower and its Subsidiaries for the twelve
months then ended, duly certified by the chief financial officer of the
Borrower, copies of which have been furnished to each Lender Party, fairly
present the Consolidated financial condition of the Borrower and its
Subsidiaries as at such dates and the Consolidated results of operations of the
Borrower and its Subsidiaries for the periods ended on such dates, all in
accordance with generally accepted accounting principles applied on a consistent
basis, and since December 31, 2000, there has been no Material Adverse Change.
(h) Financial Projections. The Consolidated forecasted
balance sheet, statement of income and statement of cash flows of the Borrower
and its Subsidiaries delivered to the Lender Parties pursuant to Section 5.3
were prepared in good faith on the basis of the assumptions stated therein,
which assumptions were fair in the light of conditions existing at the time of
delivery of such forecasts, and represented, at the time of delivery, the
Borrower's best estimate of its future financial performance.
(i) Full Disclosure. Neither the Information Memorandum nor
any other information, exhibit or report (including the information memorandum
as defined in the Existing Credit Agreement) furnished by or on behalf of any
Loan Party to any Agent or any Lender Party in connection with the negotiation
of the Loan Documents or pursuant to the terms of the Loan Documents contained
any untrue statement of a material fact or omitted to state a material fact
necessary to make the statements made therein not misleading; provided, however,
that to the extent that any such statement constitutes a projection of future
financial performance, such statement is only represented and warranted hereby
to have been made in good faith on the basis of the assumptions stated therein,
which assumptions were fair in the light of conditions existing at the time of
delivery of the Information Memorandum or other information, exhibit or report,
and represented, at the time of delivery, the Borrower's best estimate of such
future financial performance.
(j) Margin Regulations. The Borrower is not engaged in the
business of extending credit for the purpose of purchasing or carrying Margin
Stock, and no proceeds of any Advance or drawings under any Letter of Credit
will be used to purchase or carry any Margin Stock or to extend credit to others
for the purpose of purchasing or carrying any Margin Stock.
(k) Investment Company Act; Public Utility Holding Company
Act. Neither any Loan Party nor any of its Subsidiaries is an "investment
company," or an "affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company," as such terms are defined in the Investment
Company Act of 1940. Neither any Loan Party nor any of its Subsidiaries is a
"holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", as such terms are defined in the Public Utility Holding Company Act of
1935. Neither the making of any
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Advances, nor the issuance of any Letters of Credit, nor the application of the
proceeds or repayment thereof by the Borrower, nor the consummation of the other
Transactions, will violate any provision of any such Act or any rule, regulation
or order of the Securities and Exchange Commission thereunder.
(l) No Burdensome Restrictions. Neither any Loan Party nor
any of its Subsidiaries is a party to any indenture, loan or credit agreement or
any lease or other agreement or instrument or subject to any charter or
corporate restriction that would reasonably be expected to have a Material
Adverse Effect.
(m) Collateral Documents. The Collateral Documents create a
valid and perfected first priority security interest in the Collateral subject
only to Permitted Liens, securing the payment of the Secured Obligations, and
all filings and other actions necessary or desirable to perfect and protect such
security interest have been duly taken. The Loan Parties are the legal and
beneficial owners of the Collateral free and clear of any Lien, except for the
liens and security interests created or permitted under the Loan Documents.
(n) Solvency. Each Loan Party is, individually and together
with its Subsidiaries, Solvent.
(o) ERISA.
(i) No ERISA Event has occurred or is reasonably
expected to occur with respect to any Plan.
(ii) Neither any Loan Party nor any ERISA Affiliate
has incurred or is reasonably expected to incur any Withdrawal Liability
to any Multiemployer Plan.
(iii) Neither any Loan Party nor any ERISA Affiliate
has been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or has been terminated, within
the meaning of Title IV of ERISA, and no such Multiemployer Plan is
reasonably expected to be in reorganization or to be terminated, within
the meaning of Title IV of ERISA.
(iv) Schedule B (Actuarial Information) to the most
recent annual report (Form 5500 Series) for each Plan, copies of which
have been filed with the Internal Revenue Service and furnished to the
Lender Parties, is complete and accurate and fairly presents the funding
status of such Plan, and since the date of such Schedule B there has
been no material adverse change in such funding status.
(v) Set forth on Schedule 4.1(o) is a complete and
accurate list of all Plans, Multiemployer Plans and Welfare Plans.
(p) Environmental Matters.
(i) The operations and properties of each Loan Party
and each of its Subsidiaries comply in all material respects with all
applicable Environmental Laws and Environmental Permits, all past
non-compliance with such Environmental Laws and Environmental Permits
has been resolved without ongoing obligations or costs, and no
circumstances exist that could be reasonably likely to (A) form the
basis of an Environmental Action against any Loan Party or any of its
Subsidiaries or any of their properties that could have a Material
Adverse Effect or (B) cause any such property to be
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subject to any restrictions on ownership, occupancy, use or
transferability under any Environmental Law.
(ii) None of the properties currently or formerly
owned or operated by any Loan Party or any of its Subsidiaries is listed
or proposed for listing on the NPL or on the CERCLIS or any analogous
foreign, state or local list or is adjacent to any such property; there
are no and never have been any underground or aboveground storage tanks
or any surface impoundments, septic tanks, pits, sumps or lagoons in
which Hazardous Materials are being or have been treated, stored or
disposed on any property currently owned or operated by any Loan Party
or any of its Subsidiaries or, to the best of its knowledge, on any
property formerly owned or operated by any Loan Party or any of its
Subsidiaries; there is no asbestos or asbestos-containing material on
any property currently owned or operated by any Loan Party or any of its
Subsidiaries; and Hazardous Materials have not been released, discharged
or disposed of on any property currently or formerly owned or operated
by any Loan Party or any of its Subsidiaries.
(iii) Neither any Loan Party nor any of its
Subsidiaries is undertaking, and has not completed, either individually
or together with other potentially responsible parties, any
investigation or assessment or remedial or response action relating to
any actual or threatened release, discharge or disposal of Hazardous
Materials at any site, location or operation, either voluntarily or
pursuant to the order of any governmental or regulatory authority or the
requirements of any Environmental Law; and all Hazardous Materials
generated, used, treated, handled or stored at, or transported to or
from, any property currently or formerly owned or operated by any Loan
Party or any of its Subsidiaries have been disposed of in a manner not
reasonably expected to result in material liability to any Loan Party or
any of its Subsidiaries.
(q) Taxes.
(i) Each Loan Party and each of its Subsidiaries has
filed, has caused to be filed or has been included in all tax returns
(U.S. Federal, state, local and foreign) required to be filed and has
paid all taxes shown thereon to be due, together with applicable
interest and penalties.
(ii) Set forth on Part I of Schedule 4.1(q) is a
complete and accurate list, as of the Effective Date, of each taxable
year of each Loan Party and each of its Subsidiaries for which U.S.
Federal income tax returns have been filed and for which the expiration
of the applicable statute of limitations for assessment or collection
has not occurred by reason of extension or otherwise (an "Open Year").
(iii) The aggregate unpaid amount, as of the Effective
Date, of adjustments to the Federal income tax liability of each Loan
Party and each of its Subsidiaries proposed by the Internal Revenue
Service with respect to Open Years equals $0. No issues have been raised
by the Internal Revenue Service in respect of Open Years that, in the
aggregate, could be reasonably likely to have a Material Adverse Effect.
(iv) The aggregate unpaid amount, as of the Effective
Date, of adjustments to the state, local and foreign tax liability of
each Loan Party and its Subsidiaries proposed by all state, local and
foreign taxing authorities (other than amounts arising from adjustments
to Federal income tax returns) equals $0. No issues have been raised by
such taxing authorities that, in the aggregate, could be reasonably
likely to have a Material Adverse Effect.
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(v) No "ownership change" as defined in Section
382(g) of the Internal Revenue Code, and no event that would result in
the application of the "separate return limitation year" or
"consolidated return change of ownership" limitations under the Federal
income tax consolidated return regulations, has occurred with respect to
the Borrower or the Acquired Business since May 1, 1998.
(r) Labor Matters. Neither the business nor the properties of
any Loan Party or any of its Subsidiaries are affected by any fire, explosion,
accident, strike, lockout or other labor dispute, drought, storm, hail,
earthquake, embargo, act of God or of the public enemy or other casualty
(whether or not covered by insurance) that could be reasonably likely to have a
Material Adverse Effect.
(s) Existing Debt. Set forth on Schedule 4.1(s) is a complete
and accurate list of all Debt (having a principal amount in excess of $500,000)
of the Borrower and its Subsidiaries outstanding on the Effective Date
("Existing Debt"), showing as of the Effective Date the principal amount
outstanding thereunder, the maturity date thereof and the amortization schedule
therefor.
(t) Owned Real Property. Set forth on Schedule 4.1(t) is a
complete and accurate list of all real property owned by any Loan Party or any
of its Subsidiaries, showing as of the Effective Date the street address, county
or other relevant jurisdiction, state, record owner and book and estimated fair
value thereof. Each Loan Party or such Subsidiary has good, marketable and
insurable fee simple title to such real property, free and clear of all Liens,
other than Liens created or permitted by the Loan Documents.
(u) Leased Real Property. Set forth on Schedule 4.1(u) is a
complete and accurate list of all leases of real property under which any Loan
Party or any of its Subsidiaries is the lessee, showing as of the Effective Date
the street address, county or other relevant jurisdiction, state, lessor,
lessee, expiration date and annual rental cost thereof. Each such lease is the
legal, valid and binding obligation of the lessor thereof, enforceable in
accordance with its terms.
(v) Existing Investments. Set forth on Schedule 4.1(v) is a
complete and accurate list of all Investments held by any Loan Party or any of
its Subsidiaries on the Effective Date, showing as of the Effective Date the
amount, obligor or issuer and maturity, if any, thereof.
(w) Intellectual Property. Set forth on Schedule 4.1(w) is a
complete and accurate list of all patents, trademarks, trade names, service
marks and copyrights, and all applications therefor and licenses thereof, of
each Loan Party or any of its Subsidiaries, showing as of the Effective Date the
jurisdiction in which registered, the registration number, the date of
registration and the expiration date.
(x) Material Contracts. Each Material Contract has been duly
authorized, executed and delivered by all parties thereto, has not been amended
or otherwise modified, is in full force and effect and is binding upon and
enforceable against all parties thereto in accordance with its terms, and there
exists no default under any Material Contract by any party thereto that (in each
case) has or would reasonably be expected to have a Material Adverse Effect.
(y) Existing Liens. Set forth on Schedule 4.1(y) is a
complete and accurate list of all Liens of the Borrower and its Restricted
Subsidiaries outstanding on the Effective Date, showing as of the Effective Date
the property subject to such Lien and the obligations of the Borrower or the
Restricted Subsidiaries secured by such Lien.
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(z) Use of Proceeds. The proceeds of the Term A Advances and
the Term B Advances were used solely for the purposes set forth in Section 2.14
of the Existing Credit Agreement. The proceeds of the Revolving Credit Advances
and the issuances of the Letters of Credit have been made available (and the
Borrower agrees that it has used and shall use such proceeds and Letters of
Credit) solely for the purposes set forth in Section 2.14 of the Existing Credit
Agreement (with respect to such Advances made and Letters of Credit issued prior
to the Effective Date) and in Section 2.14 (with respect to such Advances made
and Letters of Credit issued on or after the Effective Date).
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.1. AFFIRMATIVE COVENANTS. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain unpaid,
any Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders, such compliance to include, without limitation,
compliance with ERISA and the Racketeer Influenced and Corrupt Organizations
Chapter of the Organized Crime Control Act of 1970.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes and all material assessments and governmental charges
or levies imposed upon it or upon its property and (ii) all lawful claims that,
if unpaid, might by law become a Lien (other than a Permitted Lien which is
referred to in clauses (b), (d), (f) or (i) of the definition of such term in
Section 1.1) upon its property; provided, however, that neither the Borrower nor
any of its Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained, unless
and until any Lien resulting therefrom attaches to its property and becomes
enforceable against its other creditors.
(c) Compliance with Environmental Laws. Comply, and cause
each of its Subsidiaries and all lessees and other Persons operating or
occupying its properties to comply, in all material respects, with all
applicable Environmental Laws and Environmental Permits; obtain and renew and
cause each of its Subsidiaries to obtain and renew all Environmental Permits
necessary for its operations and properties; and conduct, and cause each of its
Subsidiaries to conduct, any investigation, study, sampling and testing, and
undertake any cleanup, removal, remedial or other action necessary to remove and
clean up all Hazardous Materials from any of its properties, in accordance with
the requirements of all Environmental Laws, except to the extent that the
failure to do so would not have, or could not reasonably be expected to have, a
Material Adverse Effect; provided, however, that neither the Borrower nor any of
its Subsidiaries shall be required to undertake any such cleanup, removal,
remedial or other action to the extent that its obligation to do so is being
contested in good faith and by proper proceedings and appropriate reserves are
being maintained with respect to such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance (including business interruption insurance)
with responsible and reputable insurance companies or associations in such
amounts and covering such risks as is usually carried
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by companies engaged in similar businesses and owning similar properties in the
same general areas in which the Borrower or such Subsidiary operates.
(e) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain, its
existence, legal structure, legal name, rights (charter and statutory), permits,
licenses, approvals, privileges and franchises; provided, however, that the
Borrower and its Subsidiaries may consummate mergers or consolidations permitted
under Section 5.2(d); and, provided further, that neither the Borrower nor any
of its Subsidiaries shall be required to preserve any right, permit, license,
approval, privilege or franchise if the Board of Directors of the Borrower or
such Subsidiary shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Borrower or such Subsidiary, as
the case may be, and that the loss thereof is not disadvantageous in any
material respect to the Borrower, such Subsidiary or the Lender Parties.
(f) Visitation Rights. At any reasonable time and from time
to time during regular business hours and with reasonable advance notice, permit
any of the Agents or any of the Lender Parties or any agents or representatives
thereof, to examine and make copies of and abstracts from the records and books
of account of, and visit the properties of, the Borrower and any of its
Subsidiaries, and to discuss the affairs, finances and accounts of the Borrower
and any of its Subsidiaries with any of their officers or directors and with
their independent certified public accountants; provided, however, that any
proprietary information shall only be disclosed with appropriate safeguard
measures as may be mutually agreed to by the Borrower and the Agents.
(g) Keeping of Books. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, in which full and
correct entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with generally
accepted accounting principles in effect from time to time.
(h) Maintenance of Properties, Etc. Maintain and preserve,
and cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in good
working order and condition, ordinary wear and tear excepted.
(i) Transactions with Affiliates. Conduct, and cause
each of its Subsidiaries to conduct, all transactions otherwise permitted under
the Loan Documents with any of their Affiliates on terms that are fair and
reasonable and no less favorable to the Borrower or such Subsidiary than it
would obtain in a comparable arm's-length transaction with a Person not an
Affiliate; provided, however, that the following items shall not be transactions
with Affiliates and, therefore, will not be subject to the provisions of the
prior paragraph:
(i) any employment agreement or arrangement entered
into by the Borrower or any of its Restricted Subsidiaries or any
employee benefit plan available to the employees of the Borrower and its
Subsidiaries generally, in each case in the ordinary course of business
and consistent with the past practice of the Borrower or such Restricted
Subsidiary;
(ii) transactions between or among the Borrower and/or
its Restricted Subsidiaries;
(iii) payment of reasonable directors fees to Persons
who are not otherwise Affiliates of the Borrower and indemnity provided
on behalf of officers,
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directors and employees of the Borrower or any of its Restricted
Subsidiaries as determined in good faith by the Board of Directors of
the Borrower;
(iv) any transaction specifically contemplated by the
Related Documents; and
(v) any restricted payments that are permitted by
Section 5.2(g) hereof.
(j) Covenant to Guarantee Obligations and Give Security. Upon
(x) the request of the Collateral Agent following the occurrence and during the
continuance of a Default, (y) the formation or acquisition of any new direct or
indirect Subsidiaries by any Loan Party or (z) the acquisition of any property
(having a Fair Market Value of at least $5,000,000) by any Loan Party (but
excluding any capital stock of Anam which is transferred by the Borrower to a
Wholly-Owned Restricted Subsidiary), and such property, in the reasonable
judgment of the Collateral Agent, shall not already be subject to a perfected
first priority security interest in favor of the Collateral Agent for the
benefit of the Secured Parties, then the Borrower shall, in each case at the
Borrower's expense:
(i) (A) in connection with the formation or
acquisition of a Domestic Subsidiary (other than an Unrestricted
Subsidiary or a Permitted Joint Venture), within 10 days after such
formation or acquisition, cause each such Subsidiary, and cause each
direct and indirect parent of such Subsidiary (if it has not already
done so), to duly execute and deliver to the Collateral Agent a guaranty
or guaranty supplement, in form and substance satisfactory to the
Collateral Agent, guaranteeing the other Loan Parties' obligations of
the Borrower and the other Subsidiary Guarantors under the Loan
Documents, (B) in connection with the formation or acquisition of a
Foreign Subsidiary (other than an Unrestricted Subsidiary or a Permitted
Joint Venture), within 10 days after such formation or acquisition,
cause each such Subsidiary, and cause each direct and indirect parent of
such Subsidiary (if it is a Foreign Subsidiary and if it has not already
done so), to duly execute and deliver to the Collateral Agent a guaranty
or guaranty supplement, in form and substance satisfactory to the
Collateral Agent, guaranteeing the obligations of AT Korea and the other
Intercompany Guarantors under the Loan Documents,
(ii) within 10 Business Days after such request,
formation or acquisition, furnish to the Collateral Agent a description
of the real and material personal properties of the Domestic
Subsidiaries and their respective Subsidiaries in detail satisfactory to
the Agent,
(iii) within 15 Business Days after such request,
formation or acquisition, duly execute and deliver, and cause each such
Domestic Subsidiary and each direct and indirect parent of such
Subsidiary (if it has not already done so) to duly execute and deliver,
to the Collateral Agent a Mortgage or Mortgages (covering real property
with a Fair Market Value in excess of $5,000,000 for any individual real
property or in excess of $10,000,000 in the aggregate for all real
property acquired after the Effective Date), pledges, assignments,
security agreement supplements and other security agreements, as
specified by and in form and substance satisfactory to the Collateral
Agent, securing payment of all the Obligations of the applicable Loan
Party, such Subsidiary or such parent, as the case may be, under the
Loan Documents and constituting Liens on all such properties, and, in
the case of such Mortgages, Mortgage
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Policies, surveys and the other items described in Section 5.1(p) to the
extent applicable to such Mortgages,
(iv) (A) in connection with the formation or
acquisition of a Restricted Subsidiary which is owned by the
Borrower or a Subsidiary Guarantor, within 10 days after such
formation or acquisition, pledge and deliver, or cause such
Subsidiary Guarantor to pledge and deliver, certificates
representing (x) all of the Equity Interests in any such
Restricted Subsidiary which is a Domestic Subsidiary or (y) 66%
(or up to 100% to the extent that a pledge of any percentage
equal to or greater than 66 2/3% would not result in adverse tax
consequences to the Borrower) of the Equity Interests in any
Restricted Subsidiary which is a Foreign Subsidiary and is owned
by the Borrower or any Subsidiary Guarantor;
(B) in connection with the formation or
acquisition of an Unrestricted Subsidiary that is a Domestic
Subsidiary, within 10 days after such formation or acquisition,
pledge and deliver, or cause such Subsidiary Guarantor to pledge
and deliver, certificates representing all of the Equity
Interests in any such Unrestricted Subsidiary; and
(C) in connection with the formation or
acquisition of any Permitted Joint Venture that is a Domestic
Subsidiary or that is organized under the laws of the United
States or any state thereof , within 10 days after such formation
or acquisition, pledge and deliver certificates representing all
of the Equity Interests of the Borrower or such Subsidiary
Guarantor in such Permitted Joint Venture,
Provided, that in connection with the execution and delivery of any Guaranty or
Collateral Document pursuant to this Section 5.1(j), the Borrower shall ensure
that (within 30 days thereof) a legal opinion in respect thereof is delivered to
the Administrative Agent, issued by counsel, and in form and substance, which
are in each case reasonably satisfactory to the Administrative Agent; and
provided, further, that until such time as the Borrower has performed all its
obligations pursuant to this Section 5.1(j) in respect of any of its
Subsidiaries, such Subsidiary shall not be treated as a "Wholly-Owned Restricted
Subsidiary" for the purposes of Sections 5.2(b), (d), (e) and (f).
(k) Further Assurances.
(i) Promptly upon request by any Agent, or any Lender
Party through the Administrative Agent, correct any material defect or
error that may be discovered in any Loan Document or in the execution,
acknowledgment, filing or recordation thereof, and
(ii) Promptly upon request by any Agent, or any Lender
Party through the Administrative Agent, do, execute, acknowledge,
deliver, record, re-record, file, re-file, register and re-register any
and all such further acts, pledge agreements, Mortgages, assignments,
financing statements and continuations thereof, termination statements,
notices of assignment, transfers, certificates, assurances and other
instruments as any Agent, or any Lender Party through the Administrative
Agent, may reasonably require from time to time in order to (A) carry
out more effectively the purposes of the Loan Documents, (B) to the
fullest extent permitted by applicable law, subject any Loan Party's or
any of its Domestic Subsidiaries' properties, assets, rights or
interests to the
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Liens now or hereafter intended to be covered by any of the Collateral
Documents and to the extent Foreign Subsidiaries shall not suffer
adverse tax consequences, subject any of such Foreign Subsidiaries'
properties, assets, rights or interests to the Liens now or hereafter
intended to be covered by any of the Collateral Documents, (C) maintain
the validity and effectiveness of any Guaranty and to perfect and
maintain the validity, effectiveness and priority of any of the
Collateral Documents and any of the Liens intended to be created
thereunder and (D) assure, convey, grant, assign, transfer, preserve,
protect and confirm more effectively unto the Secured Parties the rights
granted or now or hereafter intended to be granted to the Secured
Parties under any Loan Document or under any other instrument executed
in connection with any Loan Document to which any Loan Party or any of
its Subsidiaries is or is to be a party.
(l) Performance of Related Documents. Perform and observe all
of the terms and provisions of each Related Document to be performed or observed
by it, maintain each such Related Document in full force and effect, enforce
such Related Document in accordance with its terms and, upon request of the
Administrative Agent, make to each other party to each such Related Document
such demands and requests for information and reports or for action as the
Borrower or any of its Subsidiaries is entitled to make under such Related
Document.
(m) Preparation of Environmental Reports. At the reasonable
request of the Collateral Agent from time to time, provide to the Lender Parties
within 90 days after such request, at the expense of the Borrower, an
environmental site assessment report for any of its or its Subsidiaries'
properties described in such request, prepared by an environmental consulting
firm acceptable to the Collateral Agent, indicating the presence or absence of
Hazardous Materials and the estimated cost of any compliance, removal or
remedial action in connection with any Hazardous Materials on such properties;
without limiting the generality of the foregoing, if the Collateral Agent
determines at any time that a material risk exists that any such report will not
be provided within the time referred to above, the Collateral Agent may retain
an environmental consulting firm to prepare such report at the expense of the
Borrower, and the Borrower hereby grants and agrees to cause any Subsidiary that
owns any property described in such request to grant at the time of such
request, to the Agents, the Lender Parties, such firm and any agents or
representatives thereof an irrevocable non-exclusive license, subject to the
rights of tenants, to enter onto their respective properties to undertake such
an assessment.
(n) Compliance with Terms of Leaseholds. Make all payments
and otherwise perform all obligations in respect of all leases of real property
to which the Borrower or any of its Subsidiaries is a party except, in any case,
where the failure to do so, either individually or in the aggregate, would not
have, or could not reasonably be expected to have, a Material Adverse Effect.
(o) Performance of Material Contracts. Perform and observe
all the terms and provisions of each Material Contract to be performed or
observed by it, not voluntarily terminate any Material Contract, enforce each
Material Contract in accordance with its terms and cause each of its
Subsidiaries to do so except, in any case, where the failure to do so, either
individually or in the aggregate, would not have, or could not reasonably be
expected to have, a Material Adverse Effect.
(p) Conditions Subsequent.
(i) Deliver to the Administrative Agent as soon as
possible and in any event no later than May 31, 2001, in form and
substance satisfactory to the Lenders
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(to the extent not previously delivered): A Mortgage covering the
Borrower's Arizona facility duly executed by the Borrower, together
with:
(A) evidence that counterparts of such
Mortgage have been duly recorded in all filing or recording
offices that the Administrative Agent may deem necessary or
desirable in order to create a valid first and subsisting Lien on
the property described therein in favor of the Collateral Agent
for the benefit of the Secured Parties and that all filing and
recording taxes and fees have been paid,
(B) a fully paid American Land Title
Association Lender's Extended Coverage title insurance policy
(the "Mortgage Policy") in form and substance, with endorsements
and in amount acceptable to the Administrative Agent, issued,
coinsured and reinsured by title insurers acceptable to the
Administrative Agent, insuring such Mortgage to be a valid first
and subsisting Lien on the property described therein, free and
clear of all defects (including mechanics' and materialmen's
Liens) and encumbrances, excepting only Permitted Encumbrances,
and providing for such other affirmative insurance (including
endorsements for future advances under the Loan Documents and for
mechanics' and materialmen's Liens) and such coinsurance and
direct access reinsurance as the Administrative Agent may
reasonably deem necessary or desirable,
(C) an American Land Title Association form
survey certified to the Administrative Agent and the issuer of
the Mortgage Policy in a manner reasonably satisfactory to the
Administrative Agent by a land surveyor duly registered and
licensed in the States in which the property described in such
survey is located and reasonably acceptable to the Administrative
Agent, showing all buildings and other improvements, (to the
extent necessary for the use or enjoyment to the property) any
off-site improvements, the location of any easements, parking
spaces, rights of way, building set-back lines and other
dimensional regulations and the absence of encroachments, either
by such improvements or on to such property, and other defects,
other than encroachments and other defects reasonably acceptable
to the Administrative Agent,
(D) the Assignments of Leases and Rents
referred to in such Mortgage, duly executed by the appropriate
Loan Party,
(E) such consents and agreements of lessors
and other third parties, and such estoppel letters and other
confirmations, as the Administrative Agent may reasonably deem
necessary or desirable,
(F) evidence of the insurance required by the
terms of such Mortgage, and
(G) evidence that all other action that the
Administrative Agent may reasonably deem necessary or desirable
in order to create a valid first and subsisting Lien on the
property described in such Mortgage has been taken.
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(q) Ledger. The Borrower shall maintain or cause to be
maintained at its address specified in Section 8.2 hereof a ledger or ledgers as
evidence of Debt permitted pursuant to clauses (ii), (iii) and (iv) of Section
5.2(b).
(r) Permitted Joint Ventures, Permitted Acquisitions and
Mergers. Upon the establishment of any Permitted Joint Venture, or upon the
consummation of any Permitted Acquisition or Merger, notify the Administrative
Agent of such transaction, and thereafter provide the Administrative Agent with
such information as the Administrative Agent may reasonably request with respect
thereto, including any memorandum of understanding and joint venture agreement
and any acquisition or merger agreement prepared in connection therewith and any
documents or instruments relating to or evidencing the incurrence or assumption
of Debt by such Permitted Joint Venture or any Subsidiary (including any Person
which becomes a Subsidiary) of the Borrower in connection with such transaction
(to the extent that such Debt is subject to the provisions of Section 5.2(b)).
SECTION 5.2. NEGATIVE COVENANTS. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain unpaid,
any Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower will not, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or
permit any of its Restricted Subsidiaries to create, incur, assume or suffer to
exist, any Lien on or with respect to any of its properties (whether real,
personal, mixed or intangible (including accounts)) whether now owned or
hereafter acquired, or sign or file or suffer to exist, or permit any of its
Restricted Subsidiaries to sign or file or suffer to exist, under the Uniform
Commercial Code of any jurisdiction, a financing statement (which evidences the
existence of a Lien) that names the Borrower or any of its Subsidiaries as
debtor, or sign or suffer to exist, or permit any of its Restricted Subsidiaries
to sign or suffer to exist, any security agreement authorizing any secured party
thereunder to file such financing statement, or (to the extent that the
following would have a commercial effect which is substantially equivalent to a
Lien) assign, or permit any of its Restricted Subsidiaries to assign, any
accounts or other right to receive income, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the Effective Date and
described on Schedule 4.1(y) hereto;
(iv) Liens upon or in real property or equipment
acquired or held by the Borrower or any of its Restricted Subsidiaries
to secure the purchase price of such property or equipment or to secure
Debt incurred solely for the purpose of financing the acquisition,
construction or improvement of any such property or equipment to be
subject to such Liens, or Liens existing on any such property or
equipment at the time of acquisition (other than any such Liens created
in contemplation of such acquisition that do not secure the purchase
price), or extensions of maturity, renewals or replacements of any of
the foregoing; provided, however, that no such Lien shall extend to or
cover any property other than the property or equipment being acquired,
constructed or improved, and no such extension, renewal or replacement
shall extend to or cover any property not theretofore subject to the
Lien being extended, renewed or replaced; and provided further that the
aggregate principal amount of the Debt secured by Liens permitted by
this
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clause (iv) shall not exceed the amount permitted under Section
5.2(b)(x) at any time outstanding;
(v) Liens arising in connection with Capitalized
Leases permitted under Section 5.2(b)(x); provided that no such Lien
shall extend to or cover any Collateral or assets other than the assets
subject to such Capitalized Leases; and
(vi) the replacement, extension or renewal of any Lien
permitted by clause (iii) above upon or in the same property theretofore
subject thereto or the replacement, extension or renewal (without
increase in the amount or change in any direct or contingent obligor) of
the Debt secured thereby.
(b) Debt. Create, incur, assume or suffer to exist, or permit
any of its Restricted Subsidiaries to create, incur, assume or suffer to exist,
any Debt, except:
(i) Debt under the Loan Documents and Existing Debt;
(ii) intercompany Debt of the Borrower owed to a
Restricted Subsidiary; provided that, (x) in the case of such Debt owed
to a Foreign Subsidiary, such Debt shall be subordinated to the
Obligations of the Borrower under the Loan Documents on terms reasonably
satisfactory to the Administrative Agent and (y) in the case of all such
Debt, the outstanding amount of such Debt shall at all times be
documented by the Borrower in accordance with Section 5.1(q);
(iii) in the case of any Domestic Subsidiary that is a
Wholly-Owned Restricted Subsidiary, intercompany Debt owed to the
Borrower or to another Domestic Subsidiary that is a Wholly-Owned
Restricted Subsidiary; provided that, in each case, the outstanding
amount of such Debt shall at all times be documented by the Borrower in
accordance with Section 5.1(q);
(iv) in the case of any Foreign Subsidiary that is a
Wholly-Owned Restricted Subsidiary, intercompany Debt owed to the
Borrower or to another Foreign Subsidiary that is a Wholly-Owned
Restricted Subsidiary; provided that, in the case of such intercompany
Debt owed to the Borrower, such Debt (A) shall constitute Pledged Debt
and (B) shall be evidenced by promissory notes in form and substance
reasonably satisfactory to the Administrative Agent (the outstanding
amount of which shall at all times be documented by the Borrower in
accordance with Section 5.1(q));
(v) additional Subordinated Debt of the Borrower;
provided that (x) upon issuance of such Subordinated Debt the Borrower
shall be in compliance (on a Pro Forma Basis) with the financial
covenants set forth in Section 5.4, (y) 50% of the Net Cash Proceeds of
the issuance thereof shall be applied to the Term B Advances to the
extent required by Section 2.6(b)(ii) and (z) such Debt shall meet the
requirements of Section 5.2(b)(vi) as if such Debt were refinancing
existing Subordinated Debt;
(vi) any Debt extending the maturity of, or refunding
or refinancing, in whole or in part, any Debt (other than intercompany
Debt) permitted under clauses (i) or (v) of this Section 5.2(b) or this
clause (vi); provided that the terms of any such extending, refunding or
refinancing Debt, and of any agreement entered into and of any
instrument issued in connection therewith, are otherwise permitted by
the Loan Documents; provided further that the principal amount of such
Debt shall not be increased above the principal amount thereof
outstanding immediately prior to such
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extension, refunding or refinancing, and the direct and contingent
obligors therefor shall not be changed, as a result of or in connection
with such extension, refunding or refinancing, provided still further
that the terms relating to principal amount, amortization, maturity and
subordination (if any), and other material terms taken as a whole, of
any such extending, refunding or refinancing Debt, and of any agreement
entered into and of any instrument issued in connection therewith, are
no less favorable in any material respect to the Loan Parties or the
Lender Parties than the terms of any agreement or instrument governing
the Debt being extended, refunded or refinanced (or in the case of a
refinancing of the Obligations of the Loan Parties under the Loan
Documents, the terms governing the Senior Notes (2001)) and the interest
rate applicable to any such extending, refunding or refinancing Debt
does not exceed the then applicable market interest rate;
(vii) Debt of the Borrower in respect of Hedge
Agreements incurred in the ordinary course of business and consistent
with prudent business practice with an aggregate Agreement Value not to
exceed $400,000,000 at any time outstanding; provided that the aggregate
Agreement Value of Debt in respect of clause (ii) of the definition of
Hedge Agreements shall not exceed $100,000,000 at any time outstanding;
(viii) Debt arising from the endorsement of negotiable
instruments for deposit or collection or similar transactions in the
ordinary course of business;
(ix) Contingent Obligations (including letters of
credit) of the Borrower or any Restricted Subsidiary incurred (or
issued) after the Effective Date in respect of the obligations of any
Non Wholly-Owned Affiliate; provided that after giving effect to the
incurrence of such Contingent Obligation (or issuance of such letter of
credit), (A) the Affiliate Restricted Investment Amount shall not exceed
the Maximum Restricted Investment Amount and (B) at the time of such
incurrence or issuance, no Default shall have occurred and be continuing
or would result therefrom;
(x) Debt secured by Liens permitted by Section
5.2(a)(iv) and Capitalized Leases not to exceed an aggregate principal
amount of $150,000,000 at any time outstanding for all Debt permitted
under this clause (b)(x);
(xi) other Debt; provided that the aggregate principal
amount of such other Debt outstanding at any time does not exceed a
principal amount of $50,000,000;
(xii) Debt of Restricted Subsidiaries that are not
Wholly-Owned Restricted Subsidiaries constituting Investments permitted
under Section 5.2(f)(vii); and
(xiii) Debt of any Person existing at the time such
Person is merged with or into Borrower or such Restricted Subsidiary, to
the extent permitted as a merger under Section 5.2(d) and an Investment
under Section 5.2(f), provided that (x) such Debt is not incurred in
connection with or in contemplation of such merger and (y) in assuming
such Debt the Borrower shall be in compliance (on a Pro Forma Basis)
with the financial covenants set forth in Section 5.4.
(c) Change in Nature of Business. Enter or permit any of its
Subsidiaries or Permitted Joint Ventures to enter into any line of business
other than the line of business presently conducted by the Borrower and its
Restricted Subsidiaries and/or lines of business reasonably related or
supplementary thereto or reasonable extensions thereof, as determined by the
board of directors of the Borrower from time to time.
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(d) Mergers, Etc. Merge into or consolidate with any Person
or permit any Person to merge into it, or permit - any of its Restricted
Subsidiaries to do so, except that:
(i) any Restricted Subsidiary of the Borrower may
merge into or consolidate with any other Restricted Subsidiary of the
Borrower, provided that, in the case of any such merger or
consolidation, the Person formed by such merger or consolidation shall
be a Wholly-Owned Restricted Subsidiary; provided further that, in the
case of any such merger or consolidation to which a Subsidiary Guarantor
or an Intercompany Guarantor, as the case may be, is a party, the Person
formed by such merger or consolidation shall be a Subsidiary Guarantor
or an Intercompany Guarantor, as the case may be;
(ii) any Restricted Subsidiary of the Borrower may
merge into or consolidate with any other Person or permit any other
Person to merge into or consolidate with it; provided that either (A)
such Restricted Subsidiary shall be a special purpose holding company
(with no operating or other material assets, other than cash Investments
made pursuant to clause (vi), (vii) or (x) of Section 5.2(f))
established for the purpose of such merger or consolidation or (B) the
Person surviving such merger, (x) if a Domestic Subsidiary, shall be a
Wholly-Owned Restricted Subsidiary and (y), if a Foreign Subsidiary,
shall be a Restricted Subsidiary, at least 90% of the Equity Interest in
which are owned directly or indirectly by the Borrower; provided further
that, in the case of any such merger or consolidation to which a
Subsidiary Guarantor or an Intercompany Guarantor, as the case may be,
is a party, the Person formed by such merger or consolidation shall be a
Subsidiary Guarantor or an Intercompany Guarantor, as the case may be;
and
(iii) any Restricted Subsidiary may merge into another
Person in connection with the disposition of all its assets to the
extent permitted under Section 5.2(e);
provided, however, that in each case, immediately before and after giving effect
thereto, no event shall occur and be continuing that constitutes a Default and,
in the case of any such merger to which the Borrower is a party, the Borrower is
the surviving corporation.
(e) Sales, Etc., of Assets. Sell, lease, transfer or
otherwise dispose of, or permit any of its Restricted Subsidiaries to sell,
lease, transfer or otherwise dispose of, any assets (other than payments of cash
or Cash Equivalents), or grant any option or other right to purchase (to the
extent the exercise of such option or right to purchase would result in a
transaction not otherwise permitted under this Section 5.2(e)), lease or
otherwise acquire any assets (each of the foregoing being a "Disposition"),
except:
(i) Dispositions (other than by way of lease) of
Inventory in the ordinary course of its business;
(ii) Dispositions of (x) the Anam Shares at (unless
any such Disposition is made pursuant to clauses (viii) or (ix) of this
Section 5.2(e)) Fair Market Value and (y) other assets for cash and for
a Fair Market Value in an aggregate amount not to exceed (in respect of
this clause (y) only) $25,000,000 in any Fiscal Year (provided, that in
determining such amount in respect of any lease, such amount shall be
the Fair Market Value of the assets subject to such lease);
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(iii) Dispositions of surplus, damaged, worn or
obsolete fixed assets in the ordinary course of business;
(iv) the making of Investments and Dispositions to the
extent constituting Investments permitted by Section 5.2(f), provided
that this clause (iv) shall not be construed so as to permit
Dispositions of such Investments;
(v) sales or discounts without recourse of accounts
receivables arising in the ordinary course of business in connection
with the collection or compromise thereof;
(vi) sales of licenses or sublicenses by the Borrower
or such Restricted Subsidiary of its patents, copyrights, trademarks,
trade names and service marks in the ordinary course of business and
which do not materially interfere with the business of the Borrower or
any Restricted Subsidiary;
(vii) Dispositions of any interest in property through
the granting of a Lien permitted under Section 5.2(a);
(viii) Dispositions of assets (A) among the Borrower and
any of the Domestic Subsidiaries that are Wholly-Owned Restricted
Subsidiaries, (B) among any of the Foreign Subsidiaries that are
Wholly-Owned Restricted Subsidiaries and (C) from a Foreign Subsidiary
that is not a Wholly-Owned Restricted Subsidiary to a Foreign Subsidiary
that is a Wholly-Owned Restricted Subsidiary; provided that any such
sale or disposition, in the case of this clause (C) only, is made on
terms no less favorable to the applicable Wholly-Owned Restricted
Subsidiary than would be provided for in an arm's length transaction;
and
(ix) Dispositions of assets to Non Wholly-Owned
Affiliates made after the Effective Date; provided that, after giving
effect to such sale or disposition, (A) the Affiliate Restricted
Investment Amount does not exceed the Maximum Restricted Investment
Amount and (B) at the time of such sale or disposition, no Default shall
have occurred and be continuing or would result therefrom.
(f) Investments in Other Persons. Make or hold, or permit any
of its Restricted Subsidiaries to make or hold, any Investment in any Person,
except:
(i) Investments by the Borrower and its Restricted
Subsidiaries in their Subsidiaries outstanding on the Effective Date;
(ii) loans and advances to employees in the ordinary
course of the business of the Borrower and its Restricted Subsidiaries
as presently conducted (x) solely for the purpose of enabling such
employees to exercise stock options in respect of Equity Interests of
the Borrower which have been granted to them by the Borrower in the
ordinary course of business (as aforesaid) or (y) for any other purpose
in an aggregate principal amount (in the case of this clause (y) only)
not to exceed $15,000,000 at any time outstanding;
(iii) Investments by the Borrower and its Restricted
Subsidiaries in Cash Equivalents;
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(iv) Investments existing on the Effective Date and
described on Schedule 4.1(w);
(v) Investments by the Borrower in Hedge Agreements
permitted under Section 5.2(b)(vii);
(vi) Investments consisting (A) of intercompany Debt
permitted under clauses (ii), (iii) and (iv) of Section 5.2(b) (B)
Dispositions of assets permitted under clause (viii) of Section 5.2(e)
or (C) capital contributions or other Investments made by the Borrower
or any of its Restricted Subsidiaries in any Wholly-Owned Restricted
Subsidiary, the proceeds of which, in each case, are used for working
capital purposes and for Capital Expenditures;
(vii) Investments made after the Effective Date (x) in
any Permitted Acquisition made for consideration in cash or in
contribution of assets (to the extent permitted by Section 5.2(e));
provided, that the sum of (1) the outstanding Affiliate Restricted
Investment Amount plus (2) the aggregate cash consideration and the Fair
Market Value of all assets contributed for all such Permitted
Acquisitions made pursuant to this clause (x) on or after the Effective
Date shall not at any time exceed the sum of the Maximum Restricted
Investment Amount plus $75,000,000, or (y) in Non Wholly-Owned
Affiliates; provided, that (A) after giving effect to any such
Investment pursuant to this clause (y), the Affiliate Restricted
Investment Amount shall not exceed the Maximum Restricted Investment
Amount, (B) at the time such Investment is made, no Default shall have
occurred and be continuing or would result therefrom and (C) to the
extent that such Investment constitutes Debt of a Non Wholly-Owned
Affiliate owing to a Domestic Loan Party, such Debt shall constitute
Pledged Debt and be evidenced by promissory notes in form and substance
satisfactory to the Administrative Agent (the outstanding amount of
which shall at all times be documented by the Borrower in accordance
with Section 5.1(q));
(viii) Investments received (A) in satisfaction of
judgments and (B) as payment on a claim made in connection with any
bankruptcy, liquidation, receivership or other insolvent proceeding;
(ix) Investments in (A) negotiable instruments held
for collection within the ordinary course of business, (B) accounts
receivable arising in the ordinary course of business (and Investments
obtained in exchange or settlement of accounts receivable for which the
Borrower or such Subsidiary has determined collection is not likely) and
(C) operating leases, deposits, utility and workers' compensation,
performance and other similar deposits arising in the ordinary course of
business;
(x) Investments made (in addition to those permitted
under clause (b)(vii) above) from (A) the Net Cash Proceeds received
from the issuance of, or in exchange for, Equity Interests in the
Borrower or (B) up to 50% of Net Cash Proceeds of the incurrence or
issuance of Subordinated Debt pursuant to Section 5.2(b)(v) used (in
respect of this clause (B) only) in making Permitted Acquisitions;
provided that (if any such Investment is made pursuant to this clause
(x)) any such Net Cash Proceeds are in each case used within 120 days
after the receipt thereof to make such Investments;
(xi) Investments received by the Borrower or such
Restricted Subsidiary in connection with the bankruptcy or
reorganization of customers and
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suppliers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course of
business;
(xii) Investments consisting of the transfer of the
semi-conductor wafer fabrication assets and associated exchange of
shares made as part of a Fab Transaction; and
(xiii) other Investments; provided that the aggregate
amount thereof shall at no time exceed $5,000,000.
(g) Restricted Payments. Declare or pay any dividends,
purchase, redeem, retire, defease or otherwise acquire for value any of its
Equity Interests now or hereafter outstanding, return any capital to its
stockholders, partners or members (or the equivalent Persons thereof) as such,
make any distribution of assets, Equity Interests, obligations or securities to
its stockholders, partners or members (or the equivalent Persons thereof) as
such or permit (x) any of its Restricted Subsidiaries to do any of the
foregoing, (y) any of its Restricted Subsidiaries to issue or sell any of their
Equity Interests to any Person other than to the Borrower or a Restricted
Subsidiary, or (z) any of its Subsidiaries to purchase, redeem, retire, defease
or otherwise acquire for value any Equity Interests in the Borrower, except
that, so long as no Default shall have occurred and be continuing at the time of
any action described below or would result therefrom:
(i) the Borrower may (A) declare and pay dividends
and distributions payable only in capital stock of the Borrower and (B)
purchase, redeem, retire, defease or otherwise acquire shares of its
capital stock with the proceeds received contemporaneously from, or in
exchange for, the issue of new shares of its capital stock with equal or
inferior voting powers, designations, preferences and rights;
(ii) any Restricted Subsidiary of the Borrower may
(A) declare and pay cash dividends to the Borrower and (B) declare and
pay dividends to any Restricted Subsidiary of which it is a Subsidiary;
(iii) the Borrower may effect any repurchase,
redemption or other acquisition or retirement for value of any Equity
Interests of the Borrower or any Restricted Subsidiary held by any
employee of the Borrower or any Restricted Subsidiary pursuant to any
employee equity subscription agreement, stock ownership plan or stock
option agreement in effect from time to time in the event of the death
or termination of such Employee; provided that the aggregate price paid
for all such repurchased, redeemed, acquired or retired Equity Interests
shall not exceed $1,000,000 in any twelve-month period and $5,000,000 in
the aggregate;
(iv) the Borrower may make that portion of
Investments permitted under Section 5.02(f) the payment for which
consists of exclusively of Equity Interests of the Borrower;
(v) the Borrower may make other cash payments not
otherwise permitted under this Section 5.2(g) in an aggregate amount not
to exceed $10,000,000; and
(vi) the repurchase of Equity Interests of the
Borrower deemed to occur (excluding any payment in cash) upon the
exercise of stock options if such Equity Interests represent a portion
of the exercise price thereof.
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(h) Amendments of Constitutive Documents. Amend, or permit
any of its Restricted Subsidiaries to amend, its certificate of incorporation or
bylaws or other constitutive documents except for any amendment that could not
be reasonably expected to materially and adversely affect the rights or
interests of the Lender Parties; provided that any such amendment shall be
delivered to the Administrative Agent at least 3 Business Days before the date
such Amendment is to become effective.
(i) Accounting Changes. Make or permit, or permit any of its
Restricted Subsidiaries to make or permit, any change in (i) accounting policies
or reporting practices, except as permitted by generally accepted accounting
principles or (ii) its Fiscal Year.
(j) Prepayments, Etc., of Debt. Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in any
manner, or make any payment in violation of any subordination terms of (A) the
AT Korea Bonds, if as a result thereof the outstanding aggregate principal
amount of the AT Korea Bonds would be less than the aggregate Commitments, or
(B) any other Funded Debt (other than intercompany Debt), except (i) the
prepayment of the Advances in accordance with the terms of this Agreement and
(ii) regularly scheduled payments or required repayments or redemptions of
Existing Debt and other Debt permitted under Section 5.2(b); provided that the
Borrower may honor any holders request to convert any Convertible Subordinated
Notes (1998) or Convertible Subordinated Notes (2000) in accordance with their
respective terms (and make any payment in connection therewith representing the
value of any fractional share); and provided further, that the Borrower may make
any payment, on or with respect to, or in connection with, the legal defeasance,
redemption, repurchase or repayment of Debt of the Borrower or any Restricted
Subsidiary permitted under Section 5.2(b) with the Net Cash Proceeds from the
incurrence of Debt permitted under clauses (v), (vi) and (xi) of Section 5.2(b).
Notwithstanding anything herein to the contrary, the Borrower and its Restricted
Subsidiaries shall be permitted to repay intercompany Debt incurred pursuant to
clauses (ii), (iii) and (iv) of Section 5.2, or which constitutes Existing Debt,
from time to time at the discretion of the Borrower; provided that at no time
shall the outstanding aggregate principal amount of (x) all the AT Korea Bonds
be less than the aggregate Commitments or (y) any AT Korea Bond be reduced to
zero.
(k) Amendment, Etc., of Related Documents. Except to the
extent permitted by paragraph (j) above or by Section 5.2(b)(vi), or in
accordance with Section 8.1 in respect of the Loan Documents, cancel or
terminate any Related Document or consent to or accept any cancellation or
termination thereof, amend, modify or change in any manner any term or condition
of any Related Document or give any consent, waiver or approval thereunder,
waive any default under or any breach of any term or condition of any Related
Document, agree in any manner to any other amendment, modification or change of
any term or condition of any Related Document or take any other action in
connection with any Related Document that in each case would impair the value of
the interest or rights of any Loan Party thereunder or that would impair the
rights or interests of any Agent or any Lender Party, or permit any of its
Restricted Subsidiaries to do any of the foregoing.
(l) Negative Pledge. Enter into or suffer to exist, or
permit any of its Restricted Subsidiaries to enter into or suffer to exist, any
agreement (i) requiring the creation of Liens which are pari passu with, or in
priority to, the Liens created by the Collateral Documents or (ii) prohibiting
or conditioning the creation or assumption of any Lien upon any of its property
or assets in favor of any Secured Party, except (x) in favor of the Secured
Parties or (y) in connection with (A) any Existing Debt or Debt permitted under
clauses (v) and (vi) of Section 5.2(b), (B) any purchase money Debt permitted by
Section 5.2(b)(x) solely to the extent that the agreement or instrument
governing such Debt prohibits a Lien on the property acquired with the
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proceeds of such Debt, (C) any Capitalized Lease permitted by Section 5.2(b)(x)
solely to the extent that such Capitalized Lease prohibits a Lien on the
property subject thereto, or (D) (in respect of clause (ii) only) any other
agreement that expressly permits the creation or assumption of Liens as security
for the Obligations.
(m) Partnerships, Etc. Become a general partner in any
general or limited partnership or joint venture, or permit any of its Restricted
Subsidiaries to do so, except in connection with any Investment by a Restricted
Subsidiary permitted by clauses (vii), (x) or (xii) of Section 5.2(f); provided
that such Restricted Subsidiary's sole asset consists of such interest in such
partnership or joint venture.
(n) Speculative Transactions. Engage, or permit any of its
Restricted Subsidiaries to engage, in any transaction involving commodity
options or futures contracts or any similar speculative transactions for
speculative purposes.
(o) Capital Expenditures. Make, or permit any of its
Restricted Subsidiaries to make, any Capital Expenditures that would cause the
aggregate of all such Capital Expenditures made by the Borrower and its
Restricted Subsidiaries in any Fiscal Year to exceed the higher of (i) 60% of
EBITDA for such Fiscal Year (determined on a Pro Forma Basis) and (ii) the
amount set forth below for such period;
------------------------------------------------------
FISCAL YEAR ENDING AMOUNT
------------------------------------------------------
December 31, 2000 $ 550,000,000
------------------------------------------------------
December 31, 2001 $ 500,000,000
------------------------------------------------------
December 31, 2002 $ 625,000,000
------------------------------------------------------
December 31, 2003 $ 725,000,000
------------------------------------------------------
December 31, 2004 $ 950,000,000
------------------------------------------------------
December 31, 2005 $1,025,000,000
------------------------------------------------------
provided, however, that the unused portion of Capital Expenditures permitted in
any Fiscal Year and not used in such period may be carried over and added to the
amount otherwise permitted in the immediately succeeding Fiscal Year, provided
further, that the aggregate amount of Capital Expenditures in such immediately
succeeding Fiscal Year after such carry-over shall not exceed 125% of the amount
of Capital Expenditures permitted for such Fiscal Year (prior to any
carry-over).
(p) Formation of Subsidiaries. Organize, or permit any
Restricted Subsidiary to organize, any new Subsidiary after the Effective Date
or invest, or permit any Restricted Subsidiary to invest, in any such newly
organized Subsidiary, except as permitted (or except, in the case of organizing
a Subsidiary, pursuant to an Investment which is permitted) under Section
5.2(f)(vi), (vii) or (x) and except for the entities listed on Schedule 5.2(p);
provided, however, that (i) neither any Unrestricted Subsidiary nor any
Permitted Joint Venture shall be permitted to organize, or invest in, any
Restricted Subsidiary, (ii) no Subsidiary organized after the Effective Date
shall be permitted to be a Restricted Subsidiary unless, (x) in the case of a
Domestic Subsidiary, it is a Wholly-Owned Subsidiary and (y) in the case of a
Foreign Subsidiary, 90% or more of the Equity Interests in such Foreign
Subsidiary are owned directly or indirectly by the Borrower and (iii) after
giving effect to the organization, or the investment in, any such new
Subsidiary, no Default shall have occurred and be continuing.
(q) Payment Restrictions Affecting Subsidiaries. Except as
required by applicable law, directly or indirectly, enter into or suffer to
exist, or permit any of its Restricted
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Subsidiaries to enter into or suffer to exist, any agreement or arrangement
limiting the ability of any of its Restricted Subsidiaries to declare or pay
dividends or other distributions in respect of its Equity Interests or repay or
prepay any Debt owed to, make loans or advances to, or otherwise transfer assets
to or invest in, the Borrower or any Subsidiary of the Borrower (whether through
a covenant restricting dividends, loans, asset transfers or investments, a
financial covenant or otherwise), except (i) the Loan Documents, (ii) any
agreement or instrument evidencing Existing Debt or Debt permitted under clauses
(v) and (vi) of Section 5.2(b), (iii) any agreement or instrument evidencing
purchase money Debt permitted by Section 5.2(b)(x) solely to the extent that the
agreement or instrument governing such Debt prohibits the transfer of the
property acquired with the proceeds of such Debt, (iv) any Capitalized Lease
permitted by Section 5.2(b)(x) solely to the extent that such Capitalized Lease
prohibits the transfer of the property subject thereto, (v) any agreement for
the sale of assets on arm's length terms permitted by Section 5.2(e) solely to
the extent that such agreement prohibits the transfer of the assets subject
thereto and (vi) customary anti-assignment provisions contained in leases,
licenses and other contracts permitted under this Agreement which are entered
into on arm's length terms in the ordinary course of business, and consistent
with the past practice, of the Borrower and its Restricted Subsidiaries.
(r) Amendment, Etc., of Material Contracts. Cancel or
terminate any Material Contract or consent to or accept any cancellation or
termination thereof, amend or otherwise modify any Material Contract or give any
consent, waiver or approval thereunder, waive any default under or breach of any
Material Contract, agree in any manner to any other amendment, modification or
change of any term or condition of any Material Contract or take any other
action in connection with any Material Contract that would impair the value of
the interest or rights of any Loan Party thereunder or that would impair the
interest or rights of any Agent or any Lender Party, or permit any of its
Subsidiaries to do any of the foregoing except, in each of the foregoing cases
where to do so would not have a Material Adverse Effect.
SECTION 5.3. REPORTING REQUIREMENTS. So long as any Advance or
any other Obligation of any Loan Party under any Loan Document shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender Party shall have
any Commitment hereunder, the Borrower will furnish to the Agents and the Lender
Parties:
(a) Default Notices. As soon as possible and in any event
within five Business Days after an officer of the Borrower becomes aware of the
occurrence of a Default or any event, development or occurrence reasonably
likely to have a Material Adverse Effect continuing on the date of such
statement, a statement of the chief financial officer of the Borrower setting
forth details of such Default and the action that the Borrower has taken and
proposes to take with respect thereto.
(b) Annual Financials. As soon as available and in any event
within 90 days after the end of each Fiscal Year, a copy of the annual audit
report for such year for the Borrower and its Subsidiaries, including therein
Consolidated balance sheets of the Borrower and its Subsidiaries as of the end
of such Fiscal Year and Consolidated statements of income and a Consolidated
statement of cash flows of the Borrower and its Subsidiaries for such Fiscal
Year, in each case accompanied by an opinion acceptable to the Required Lenders
of PricewaterhouseCoopers or other independent public accountants of recognized
standing acceptable to the Required Lenders, together with (i) a certificate of
such accounting firm to the Lender Parties, stating that in the course of the
regular audit of the consolidated financial statements of the Borrower and its
Subsidiaries, which audit was conducted by such accounting firm in accordance
with generally accepted auditing standards, such accounting firm has obtained no
knowledge that a Default has occurred and is continuing, or if, in the opinion
of such
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accounting firm, a Default has occurred and is continuing, a statement as to the
nature thereof, (ii) unaudited consolidating balance sheets of the Borrower and
its Subsidiaries as of the end of such Fiscal Year and unaudited consolidating
statements of income of the Borrower and its Subsidiaries for such Fiscal Year,
together with a certificate duly signed by the Chief Financial Officer of the
Borrower stating that such balance sheets and statements (A) were prepared by
the Borrower in accordance with generally accepted accounting principals and (B)
to the best of the Chief Financial Officer's knowledge, accurate in all material
respects, (iii) a schedule in form satisfactory to the Administrative Agent of
the computations used by the Borrower in determining, as of the end of such
Fiscal Year, compliance with the covenants contained in Section 5.4, and a
letter from such accountants confirming their agreement with the procedures used
by the Borrower in such computations and verifying the mathematical accuracy of
such computations, provided that in the event of any change in GAAP used in the
preparation of such financial statements, the Borrower shall also provide, if
necessary for the determination of compliance with Section 5.4, a statement of
reconciliation conforming such financial statements to GAAP and provided further
that the Borrower shall also provide, to the extent necessary, a balance sheet,
statement of income and statement of cash flows that will exclude the
Unrestricted Subsidiaries and Permitted Joint Ventures that existed during such
reporting period and (iv) a certificate of the chief financial officer of the
Borrower stating that no Default has occurred and is continuing or, if a Default
has occurred and is continuing, a statement as to the nature thereof and the
action that the Borrower has taken and proposes to take with respect thereto.
(c) Quarterly Financials. As soon as available and in any
event within 45 days after the end of each of the first three quarters of each
Fiscal Year, an unaudited Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such quarter and an unaudited Consolidated
statement of income and an unaudited Consolidated statement of cash flows of the
Borrower and its Subsidiaries for the period commencing at the end of the
previous fiscal quarter and ending with the end of such fiscal quarter and an
unaudited Consolidated statement of income and an unaudited Consolidated
statement of cash flows of the Borrower and its Subsidiaries for the period
commencing at the end of the previous Fiscal Year and ending with the end of
such quarter, setting forth in each case in comparative form the corresponding
figures for the corresponding period of the preceding Fiscal Year, all in
reasonable detail and duly certified (subject to year-end audit adjustments) by
the chief financial officer of the Borrower as having been prepared in
accordance with GAAP, together with (i) a certificate of said officer stating
that no Default has occurred and is continuing or, if a Default has occurred and
is continuing, a statement as to the nature thereof and the action that the
Borrower has taken and proposes to take with respect thereto and (ii) a schedule
in form satisfactory to the Administrative Agent of the computations used by the
Borrower in determining compliance with the covenants contained in Section 5.4,
provided that in the event of any change in GAAP used in the preparation of such
financial statements, the Borrower shall also provide, if necessary for the
determination of compliance with Section 5.4, a statement of reconciliation
conforming such financial statements to GAAP and provided further that the
Borrower shall also provide, to the extent necessary, a balance sheet, statement
of income and statement of cash flows that will exclude the Unrestricted
Subsidiaries and Permitted Joint Ventures that existed during such reporting
period.
(d) Annual Business Plan and Forecasts. As soon as available
and in any event no later than 15 days before the end of each Fiscal Year, a
business plan and forecasts prepared by management of the Borrower of balance
sheets, income statements and cash flow statements on a monthly basis for the
Fiscal Year following such Fiscal Year and on an annual basis for each Fiscal
Year thereafter until the Termination Date.
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(e) Litigation. Promptly after the commencement thereof,
notice of all actions, suits, investigations, litigation and proceedings before
any court or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting any Loan Party or any of its
Subsidiaries of the type described in Section 4.1(f).
(f) Securities Reports. Promptly after the sending or filing
thereof, copies of the Borrower's Reports on Form 10-K and Form 10-Q.
(g) Creditor Reports. Promptly after the furnishing thereof,
copies of any material statement or report furnished to any holder of Debt
securities of any Loan Party or of any of its Subsidiaries pursuant to the terms
of any indenture, loan or credit or similar agreement and not otherwise required
to be furnished to the Lender Parties pursuant to any other clause of this
Section 5.3.
(h) Agreement Notices. Promptly upon receipt thereof, copies
of all notices, requests and other documents received by any Loan Party or any
of its Subsidiaries under or pursuant to any Related Document or Material
Contract or instrument, indenture, loan or credit or similar agreement and, from
time to time upon request by the Administrative Agent, such information and
reports regarding the Related Documents, the Material Contracts and such
instruments, indentures and loan and credit and similar agreements as the
Administrative Agent may reasonably request. Upon request of the Administrative
Agent, request of each other party to each Material Contract such information
and reports as the Borrower or any of its Subsidiaries is entitled to make under
such Material Contract and (subject to complying with applicable confidentiality
restrictions) provide copies thereof to the Administrative Agent.
(i) ERISA.
(i) ERISA Events and ERISA Reports. (A) Promptly and
in any event within 10 days after any Loan Party or any ERISA Affiliate
knows or has reason to know that any ERISA Event has occurred, a
statement of the chief financial officer of the Borrower describing such
ERISA Event and the action, if any, that such Loan Party or such ERISA
Affiliate has taken and proposes to take with respect thereto and (B) on
the date any records, documents or other information must be furnished
to the PBGC with respect to any Plan pursuant to Section 4010 of ERISA,
a copy of such records, documents and information.
(ii) Plan Terminations. Promptly and in any event
within two Business Days after receipt thereof by any Loan Party or any
ERISA Affiliate, copies of each notice from the PBGC stating its
intention to terminate any Plan or to have a trustee appointed to
administer any Plan.
(iii) Multiemployer Plan Notices. Promptly and in any
event within five Business Days after receipt thereof by any Loan Party
or any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies
of each notice concerning (A) the imposition of Withdrawal Liability by
any such Multiemployer Plan, (B) the reorganization or termination,
within the meaning of Title IV of ERISA, of any such Multiemployer Plan
or (C) the amount of liability incurred, or that may be incurred, by
such Loan Party or any ERISA Affiliate in connection with any event
described in clause (A) or (B).
(iv) Plan Annual Reports. Promptly and in any event
within 30 days after the filing thereof with the Internal Revenue
Service, copies of each Schedule B (Actuarial Information) to the annual
report (Form 5500 Series) with respect to each Plan.
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(j) Environmental Conditions. Promptly after the assertion
or occurrence thereof, notice of any Environmental Action against or of any
noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit that could (i) reasonably be expected
to have a Material Adverse Effect or (ii) cause any property described in the
Mortgages to be subject to any restrictions on ownership, occupancy, use or
transferability under any Environmental Law.
(k) Real Property. Promptly following its acquisition by the
Borrower or its Subsidiaries, details of any real property in respect of which a
Mortgage may be required pursuant to Section 5.1(j).
(l) Insurance. As soon as available and in any event within
30 days after the end of each Fiscal Year, a report summarizing the insurance
coverage (specifying type, amount and carrier) in effect for the Borrower and
its Subsidiaries and containing such additional information as any Agent, or any
Lender Party through the Administrative Agent, may reasonably specify.
(m) Borrowing Base Certificate. Within ten Business Days
after the end of each quarter, a Borrowing Base Certificate, as at the end of
the previous quarter, certified by the chief financial officer of the Borrower.
(n) Fab Certificate. At least 15 Business Days prior to the
occurrence of the Fab Transaction, the Borrower shall deliver reasonably
complete information in sufficient detail to permit the Lender Parties to
evaluate the Fab Transaction together with a certificate from the chief
financial officer (or equivalent officer) of the Borrower as to the satisfaction
of clause (iv) of the definition of the Fab Transaction.
(o) Other Information. Such other information respecting the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party or any of its Subsidiaries as any
Agent, or any Lender Party through the Administrative Agent, may from time to
time reasonably request, including information relating to the Borrower's
hedging policy; provided, however, that any proprietary information shall only
be disclosed with appropriate safeguard measures as may be mutually agreed to by
the Borrower and the Agents.
SECTION 5.4. FINANCIAL COVENANTS. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain unpaid,
any Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower will:
(a) Fixed Charge Coverage Ratio. Maintain (i) at all times,
a Fixed Charge Coverage Ratio of not less than 1.10:1 and (ii) as at the last
day of each Measurement Period, a Revolving Credit Availability of not less than
$50,000,000.
(b) Leverage Ratio. Maintain at all times a Leverage Ratio
of not more than the amount set forth below for each period set forth below:
-----------------------------------------------------
QUARTER ENDING RATIO
-----------------------------------------------------
March 31, 2001 3.25:1
-----------------------------------------------------
June 30, 2001 3.25:1
-----------------------------------------------------
September 30, 2001 3.25:1
-----------------------------------------------------
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-----------------------------------------------------
QUARTER ENDING RATIO
-----------------------------------------------------
December 31, 2001 3.25:1
-----------------------------------------------------
March 31, 2002 3.00:1
-----------------------------------------------------
June 30, 2002 3.00:1
-----------------------------------------------------
September 30, 2002 2.75:1
-----------------------------------------------------
December 31, 2002 2.50:1
-----------------------------------------------------
March 31, 2003 2.25:1
-----------------------------------------------------
June 30, 2003 2.25:1
-----------------------------------------------------
September 30, 2003 2.25:1
-----------------------------------------------------
December 31, 2003 2.25:1
-----------------------------------------------------
March 31, 2004 2.00:1
-----------------------------------------------------
June 30, 2004 2.00:1
-----------------------------------------------------
September 30, 2004 2.00:1
-----------------------------------------------------
December 31, 2004 2.00:1
-----------------------------------------------------
March 31, 2005 2.00:1
-----------------------------------------------------
June 30, 2005 2.00:1
-----------------------------------------------------
September 30, 2005 2.00:1
-----------------------------------------------------
(c) Interest Coverage Ratio. Maintain at all times an
Interest Coverage Ratio of not less than the amount set forth below for each
period set forth below:
-----------------------------------------------------
QUARTER ENDING RATIO
-----------------------------------------------------
March 31, 2001 3.50:1
-----------------------------------------------------
June 30, 2001 3.50:1
-----------------------------------------------------
September 30, 2001 3.50:1
-----------------------------------------------------
December 31, 2001 3.50:1
-----------------------------------------------------
March 31, 2002 3.50:1
-----------------------------------------------------
June 30, 2002 3.50:1
-----------------------------------------------------
September 30, 2002 3.75:1
-----------------------------------------------------
December 31, 2002 3.75:1
-----------------------------------------------------
March 31, 2003 4.00:1
-----------------------------------------------------
June 30, 2003 4.00:1
-----------------------------------------------------
September 30, 2003 4.00:1
-----------------------------------------------------
December 31, 2003 4.00:1
-----------------------------------------------------
March 31, 2004 4.00:1
-----------------------------------------------------
June 30, 2004 4.00:1
-----------------------------------------------------
September 30, 2004 4.00:1
-----------------------------------------------------
December 31, 2004 4.00:1
-----------------------------------------------------
March 31, 2005 4.00:1
-----------------------------------------------------
June 30, 2005 4.00:1
-----------------------------------------------------
September 30, 2005 4.00:1
-----------------------------------------------------
(d) Tangible Net Worth. The Borrower will not permit
Tangible Net Worth at any time to be less than (i) 90% of the Tangible Net Worth
on the Initial Closing Date after giving affect to the Transactions (as defined
in the Existing Credit Agreement) plus (ii) 50% of the sum of Net Income of the
Borrower and its Restricted Subsidiaries for each fiscal quarter beginning with
the first quarter after the Initial Closing Date (without reduction for losses)
plus (iii) the amount of Net Cash Proceeds from issuances of Equity Interests
received by the Borrower since the Effective Date.
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ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.1. EVENTS OF DEFAULT. If any of the following events
("Events of Default") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of any
Advance when the same shall become due and payable or (ii) the Borrower shall
fail to pay any interest on any Advance, or any Loan Party shall fail to make
any other payment under any Loan Document, in each case under this clause (ii)
within 3 Business Days after the same becomes due and payable; or
(b) any representation or warranty made by any Loan Party
(or any of its officers) under or in connection with any Loan Document shall
prove to have been incorrect in any material respect when made; or
(c) the Borrower shall fail to perform or observe any term,
covenant or agreement contained in Xxxxxxx 0.00, 0.0(x), (x), (x), (x) or (r),
5.2, 5.3 or 5.4; provided that, in the case of Section 5.3, any such failure
shall remain unremedied for three Business Days after the earlier date of which
(A) a Responsible Officer becomes aware of such failure or (B) written notice
shall have been given to the Borrower by any Agent or Lender Party; or
(d) any Loan Party shall fail to perform or observe any
other term, covenant or agreement contained in any Loan Document on its part to
be performed or observed if such failure shall remain unremedied for 15 Business
Days after the earlier of the date on which (A) a Responsible Officer becomes
aware of such failure or (B) written notice thereof shall have been given to the
Borrower by any Agent or any Lender Party; or
(e) any Loan Party or any of its Restricted Subsidiaries
shall fail to pay any principal of, premium or interest on or any other amount
payable in respect of any Debt that is outstanding in a principal amount (or, in
the case of any Hedge Agreement, an Agreement Value) of at least $10,000,000
either individually or in the aggregate (but excluding Debt outstanding
hereunder) of such Loan Party or such Subsidiary (as the case may be), when the
same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument relating to such Debt; or any other event (other than a permitted
redemption under Section 5.2(g)(iv) or (v)) shall occur or condition shall exist
under any agreement or instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or to
permit the acceleration of, the maturity of such Debt or otherwise to cause, or
to permit the holder thereof to cause, such Debt to mature; or any such Debt
shall be declared to be due and payable or required to be prepaid or redeemed
(other than by a regularly scheduled required prepayment or redemption),
purchased or defeased, or an offer to prepay, redeem, purchase or defease such
Debt shall be required to be made, in each case prior to the stated maturity
thereof; or
(f) any Loan Party or any of its Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general assignment for
the benefit of creditors; or any proceeding shall be instituted by or against
any Loan Party or any of its Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or
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composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, or other similar official for
it or for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it) that is being
diligently contested by it in good faith, either such proceeding shall remain
undismissed or unstayed for a period of 30 days or any of the actions sought in
such proceeding (including the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official for, it
or any substantial part of its property) shall occur; or any Loan Party or any
of its Subsidiaries shall take any corporate action to authorize any of the
actions set forth above in this subsection (f); or
(g) any judgment or order for the payment of money in excess
of $10,000,000 shall be rendered against any Loan Party or any of its Restricted
Subsidiaries and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be any period of 15
consecutive Business Days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect; or
(h) any non-monetary judgment or order shall be rendered
against any Loan Party or any of its Restricted Subsidiaries that could be
reasonably likely to have a Material Adverse Effect, and there shall be any
period of 15 consecutive Business Days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall not be
in effect; or
(i) any provision of any Loan Document after delivery
thereof pursuant to Section 3.1, 5.1(j) or 5.1(p) shall for any reason cease to
be valid and binding on or enforceable against any Loan Party party to it, or
any such Loan Party shall so state in writing; or
(j) any Collateral Document after delivery thereof pursuant
to Section 3.1, 5.1(j) or 5.1(p) shall for any reason (other than pursuant to
the terms thereof) cease to create a valid and perfected first priority lien on
and security interest in the Collateral purported to be covered thereby; or
(k) a Change of Control shall occur; or
(l) any ERISA Event shall have occurred with respect to a
Plan and the sum (determined as of the date of occurrence of such ERISA Event)
of the Insufficiency of such Plan and the Insufficiency of any and all other
Plans with respect to which an ERISA Event shall have occurred and then exist
(or the liability of the Loan Parties and the ERISA Affiliates related to such
ERISA Event) exceeds $10,000,000; or
(m) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when aggregated with all
other amounts required to be paid to Multiemployer Plans by the Loan Parties and
the ERISA Affiliates as Withdrawal Liability (determined as of the date of such
notification), exceeds $10,000,000 or requires payments exceeding $1,000,000 per
annum; or
(n) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
in reorganization or is being terminated, within the meaning of Title IV of
ERISA, and as a result of such reorganization or termination the aggregate
annual contributions of the Loan Parties and the ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated have
been or will be
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increased over the amounts contributed to such Multiemployer Plans for the plan
years of such Multiemployer Plans immediately preceding the plan year in which
such reorganization or termination occurs by an amount exceeding $10,000,000,
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitments of each Lender Party and the obligation of each Lender
Party to make Advances (other than Letter of Credit Advances by an Issuing Bank
or a Revolving Credit Lender pursuant to Section 2.3(c) and of each Issuing Bank
to issue Letters of Credit to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the
Required Lenders, (A) by notice to the Borrower, declare the Notes, all interest
thereon and all other amounts payable under this Agreement and the other Loan
Documents to be forthwith due and payable, whereupon the Notes, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower, (B) by notice to each party
required under the terms of any agreement in support of which a Standby Letter
of Credit is issued, request that all Obligations under such agreement be
declared to be due and payable and (C) by notice to each Issuing Bank, direct
such Issuing Bank to deliver a Default Termination Notice to the beneficiary of
each Standby Letter of Credit issued by it, and each Issuing Bank shall deliver
such Default Termination Notices; provided, however, that in the event of an
actual or deemed entry of an order for relief with respect to the Borrower under
the Federal Bankruptcy Code, (x) the Commitments of each Lender Party and the
obligation of each Lender Party to make Advances (other than Letter of Credit
Advances by an Issuing Bank or a Revolving Credit Lender pursuant to Section
2.3(c) and of each Issuing Bank to issue Letters of Credit shall automatically
be terminated and (y) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.
SECTION 6.2. ACTIONS IN RESPECT OF THE LETTERS OF CREDIT UPON
DEFAULT. If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, or shall at the request of the Required Lenders,
irrespective of whether it is taking any of the actions described in Section 6.1
or otherwise, make demand upon the Borrower to, and forthwith upon such demand
the Borrower will, pay to the Collateral Agent on behalf of the Lender Parties
in same day funds at the Collateral Agent's office designated in such demand,
for deposit in the L/C Collateral Account, an amount equal to the aggregate
Available Amount of all Letters of Credit then outstanding. If at any time the
Administrative Agent or the Collateral Agent determines that any funds held in
the L/C Collateral Account are subject to any right or claim of any Person other
than the Agents and the Lender Parties or that the total amount of such funds is
less than the aggregate Available Amount of all Letters of Credit, the Borrower
will, forthwith upon demand by the Administrative Agent or the Collateral Agent,
pay to the Collateral Agent, as additional funds to be deposited and held in the
L/C Collateral Account, an amount equal to the excess of (a) such aggregate
Available Amount over (b) the total amount of funds, if any, then held in the
L/C Collateral Account that the Administrative Agent or the Collateral Agent, as
the case may be, determines to be free and clear of any such right and claim.
Upon the drawing of any Letter of Credit for which funds are on deposit in the
L/C Collateral Account, such funds shall be applied to reimburse the relevant
Issuing Bank or Revolving Credit Lenders, as applicable, to the extent permitted
by applicable law.
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ARTICLE VII
THE AGENTS
SECTION 7.1. AUTHORIZATION AND ACTION. Each Lender Party (in its
capacities as a Lender, an Issuing Bank (if applicable) and on behalf of itself
and its Affiliates as potential Hedge Banks) hereby appoints and authorizes each
Agent to take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement and the other Loan Documents as are delegated to
such Agent by the terms hereof and thereof, together with such powers and
discretion as are reasonably incidental thereto. As to any matters not expressly
provided for by the Loan Documents (including enforcement or collection of the
Notes), no Agent shall be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lender
Parties and all holders of Notes; provided, however, that no Agent shall be
required to take any action that exposes such Agent to personal liability or
that is contrary to this Agreement or applicable law. Each Agent agrees to give
to each Lender Party prompt notice of each notice given to it by the Borrower
pursuant to the terms of this Agreement.
SECTION 7.2. AGENTS' RELIANCE, ETC. Neither any Agent nor any of
their respective directors, officers, agents or employees shall be liable for
any action taken or omitted to be taken by it or them under or in connection
with the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, each Agent:
(a) may treat the payee of any Note as the holder thereof until, in the case of
the Administrative Agent, the Administrative Agent receives and accepts an
Assignment and Acceptance entered into by the Lender that is the payee of such
Note, as assignor, and an Eligible Assignee, as assignee, or, in the case of any
other Agent, such Agent has received notice from the Administrative Agent that
it has received and accepted such Assignment and Acceptance, in each case as
provided in Section 8.7; (b) may consult with legal counsel (including counsel
for any Loan Party), independent public accountants and other experts selected
by it and shall not be liable for any action taken or omitted to be taken in
good faith by it in accordance with the advice of such counsel, accountants or
experts; (c) makes no warranty or representation to any Lender Party and shall
not be responsible to any Lender Party for any statements, warranties or
representations (whether written or oral) made in or in connection with the Loan
Documents; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of any
Loan Document on the part of any Loan Party or to inspect the property
(including the books and records) of any Loan Party; (e) shall not be
responsible to any Lender Party for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; and (f) shall incur no liability under or
in respect of any Loan Document by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telegram, telecopy or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.3. CUSA, SSBI, DBAB AND THEIR AFFILIATES. With respect
to its Commitments, the Advances made by it and the Notes issued to it, each of
CUSA, SSBI and DBAB shall have the same rights and powers under the Loan
Documents as any other Lender Party and may exercise the same as though it were
not an Agent; and the term "Lender Party" or "Lender Parties" shall, unless
otherwise expressly indicated, include CUSA, SSBI and DBAB in their respective
individual capacities. CUSA, SSBI and DBAB and their respective affiliates may
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accept deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of business
with, any Loan Party, any of its Subsidiaries and any Person who may do business
with or own securities of any Loan Party or any such Subsidiary, all as if CUSA,
SSBI and DBAB were not Agents and without any duty to account therefor to the
Lender Parties.
SECTION 7.4. LENDER PARTY CREDIT DECISION. Each Lender Party
acknowledges that it has, independently and without reliance upon any Agent or
any other Lender Party and based on the financial statements referred to in
Section 4.1 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender Party also acknowledges that it will, independently and
without reliance upon any Agent or any other Lender Party and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement.
SECTION 7.5. INDEMNIFICATION.
(a) Each Lender Party severally agrees to indemnify each
Agent (to the extent not promptly reimbursed by the Borrower) from and against
such Lender Party's ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against such Agent in any way relating to
or arising out of the Loan Documents or any action taken or omitted by such
Agent under the Loan Documents (collectively, the "Indemnified Costs");
provided, however, that no Lender Party shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from such Agent's gross negligence or
willful misconduct as found in a final, non-appealable judgment by a court of
competent jurisdiction. Without limitation of the foregoing, each Lender Party
agrees to reimburse each Agent promptly upon demand for its ratable share of any
costs and expenses (including fees and expenses of counsel) payable by the
Borrower under Section 8.4, to the extent that such Agent is not promptly
reimbursed for such costs and expenses by the Borrower. In the case of any
investigation, litigation or proceeding giving rise to any Indemnified Costs,
this Section 7.5 applies whether any such investigation, litigation or
proceeding is brought by any Lender Party or any other Person.
(b) Each Lender Party severally agrees to indemnify each
Issuing Bank (to the extent not promptly reimbursed by the Borrower) from and
against such Lender Party's ratable share (determined as provided below) of any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against such Issuing
Bank in any way relating to or arising out of the Loan Documents or any action
taken or omitted by such Issuing Bank under the Loan Documents; provided,
however, that no Lender Party shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from such Issuing Bank's gross
negligence or willful misconduct as found in a final, non-appealable judgment by
a court of competent jurisdiction. Without limitation of the foregoing, each
Lender Party agrees to reimburse such Issuing Bank promptly upon demand for its
ratable share of any costs and expenses (including fees and expenses of counsel)
payable by the Borrower under Section 8.4, to the extent that such Issuing Bank
is not promptly reimbursed for such costs and expenses by the Borrower.
(c) For purposes of this Section 7.5, the Lender Parties'
respective ratable shares of any amount shall be determined, at any time,
according to the sum of (i) the aggregate
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principal amount of the Advances outstanding at such time and owing to the
respective Lender Parties, (ii) their respective Pro Rata Shares of the
aggregate Available Amount of all Letters of Credit outstanding at such time and
(iii) their respective Unused Revolving Credit Commitments at such time;
provided, however, that the aggregate principal amount of Letter of Credit
Advances owing to any Issuing Bank shall be considered to be owed to the
Revolving Credit Lenders ratably in accordance with their respective Revolving
Credit Commitments. The failure of any Lender Party to reimburse any Agent or
any Issuing Bank, as the case may be, promptly upon demand for its ratable share
of any amount required to be paid by the Lender Parties to such Agent or such
Issuing Bank, as the case may be, as provided herein shall not relieve any other
Lender Party of its obligation hereunder to reimburse such Agent or such Issuing
Bank, as the case may be, for its ratable share of such amount, but no Lender
Party shall be responsible for the failure of any other Lender Party to
reimburse such Agent or such Issuing Bank, as the case may be, for such other
Lender Party's ratable share of such amount. Without prejudice to the survival
of any other agreement of any Lender Party hereunder, the agreement and
obligations of each Lender Party contained in this Section 7.5 shall survive the
payment in full of principal, interest and all other amounts payable hereunder
and under the other Loan Documents.
SECTION 7.6. SUCCESSOR ADMINISTRATIVE AGENT AND COLLATERAL
AGENT.
(a) The Administrative Agent and/or the Collateral Agent may
resign as to any or all of the Facilities at any time by giving written notice
thereof to the Lender Parties and the Borrower and may be removed as to all of
the Facilities and any of the Collateral at any time with or without cause by
the Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint a successor Administrative Agent and/or a
successor Collateral Agent to such of the Facilities and/or such of the
Collateral as to which such Administrative Agent and/or Collateral Agent has
resigned or been removed. If no successor Administrative Agent and/or Collateral
Agent shall have been so appointed by the Required Lenders, and shall have
accepted such appointment, within 30 days after the retiring Administrative
Agent's and/or Collateral Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Administrative Agent and/or Collateral
Agent, then the retiring Administrative Agent and/or the retiring Collateral
Agent may respectively, on behalf of the Lender Parties, appoint a successor
Administrative Agent and a successor Collateral Agent, which in each case shall
be a commercial bank organized under the laws of the United States or of any
State thereof and having a combined capital and surplus of at least
$250,000,000. Upon the acceptance of any appointment as Administrative Agent
and/or Collateral Agent hereunder by a successor Administrative Agent as to all
of the Facilities and/or Collateral Agent as to any of the Collateral, and upon
the execution and filing or recording of such financing statements, or
amendments thereto, and such amendments or supplements to the Mortgages, and
such other instruments or notices, as may be necessary or desirable, or as the
Required Lenders may request, in order to continue the perfection of the Liens
granted or purported to be granted by the Collateral Documents, such successor
Administrative Agent and/or Collateral Agent shall succeed to and become vested
with all the rights, powers, discretion, privileges and duties of the retiring
Administrative Agent or Collateral Agent (as the case may be), and the retiring
Administrative Agent and/or Collateral Agent shall be discharged from its duties
and obligations under the Loan Documents. Upon the acceptance of any appointment
as Administrative Agent and/or Collateral Agent hereunder by a successor
Administrative Agent or successor Collateral Agent as to less than all of the
Facilities or less than all of the Collateral and upon the execution and filing
or recording of such financing statements, or amendments thereto, and such
amendments or supplements to the Mortgages, and such other instruments or
notices, as may be necessary or desirable, or as the Required Lenders may
request, in order to continue the perfection of the Liens granted or purported
to be granted by the Collateral Documents, such
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successor Administrative Agent and/or successor Collateral Agent shall succeed
to and become vested with all the rights, powers, discretion, privileges and
duties of the retiring Administrative Agent and/or Collateral Agent as to such
Facilities and Collateral, other than with respect to funds transfers and other
similar aspects of the administration of Borrowings under such Facilities,
issuances of Letters of Credit (notwithstanding any resignation as
Administrative Agent with respect to the Letter of Credit Facility) and payments
by the Borrower in respect of such Facilities, and the retiring Administrative
Agent and/or the retiring Collateral Agent (as the case may be) shall be
discharged from its respective duties and obligations under this Agreement as to
such Facilities and/or Collateral, other than as aforesaid. If, within 45 days
after written notice is given of the retiring Administrative Agent's and/or
Collateral Agent's resignation or removal under this Section 7.6, no successor
Administrative Agent and/or Collateral Agent shall have been appointed and shall
have accepted such appointment, then on such 45th day (i) the retiring
Administrative Agent's and/or Collateral Agent's resignation or removal shall
become effective, (ii) the retiring Administrative Agent and/or Collateral Agent
shall thereupon be discharged from its respective duties and obligations under
the Loan Documents and (iii) the Required Lenders shall thereafter perform all
duties of the retiring Administrative Agent and/or Collateral Agent under the
Loan Documents until such time, if any, as the Required Lenders appoint a
successor Administrative Agent and/or Collateral Agent as provided above. After
any retiring Administrative Agent's and/or retiring Collateral Agent's
resignation or removal hereunder as Administrative Agent as to all of the
Facilities and/or Collateral Agent as to all the Collateral shall have become
effective, the provisions of this Article VII shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Administrative Agent
as to any Facilities under this Agreement and/or while it was Collateral Agent
as to any of the Collateral.
(b) The Lender Parties hereby acknowledge, ratify and
consent to the transactions contemplated in the Assignment and Release
Agreement, including (i) the retirement of the Existing Administrative Agent and
the Existing Collateral Agent, (ii) the appointments of CUSA, as successor
Administrative Agent and as successor Collateral Agent, (iii) the release
(except as provided in Section 7.2) of SG and XX Xxxxx Securities Inc. of all of
their respective obligations under the Existing Credit Agreement, in their
respective capacities as the Existing Administrative Agent, the Existing
Collateral Agent or an Arranger, as applicable, (iv) the assignment to CUSA of
SG's rights as agent under (x) the Pledge Agreement dated as of June 8, 2000
among the Borrower, SG and the pledgees named therein and (y) the Custody
Agreement dated as of June 8, 2000 (as amended by a supplemental agreement dated
June 8, 2000) between the Borrower and Seoul Bank and acknowledged by SG and (v)
the provisions of this Article VII inuring to the benefit of SG and XX Xxxxx
Securities Inc. (as provided in Section 7.6(a)).
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement or the Notes or any other Loan Document, nor consent
to any departure by any Loan Party therefrom, shall in any event be effective
unless the same shall be in writing and signed (or, in the case of the
Collateral Documents, consented to) by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that (a) no amendment,
waiver or consent shall, unless in writing and signed by all of the Lenders
(other than any Lender Party that is, at such time, a Defaulting Lender), do any
of the following at any time: (i) waive any of the conditions specified in
Section 3.1 or, in the case of the Initial Extension of Credit, Section 3.2,
(ii) change any provision that expressly requires a vote or determination by all
of the Lenders or the
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percentage of (x) the Commitments, (y) the aggregate unpaid principal amount of
the Advances or (z) the aggregate Available Amount of outstanding Letters of
Credit that, in each case, shall be required for the Lenders or any of them to
take any action hereunder, (iii) reduce or limit the obligations of any
Guarantor under Section 1 of the Guaranty issued by it or release such Guarantor
or otherwise limit such Guarantor's liability with respect to the Obligations
owing to the Agents and the Lender Parties (other than, in the case of any
Guarantor, to the extent permitted under the Guaranty to which it is a party),
(iv) release all or substantially all of the Collateral in any transaction or
series of related transactions or permit the creation, incurrence, assumption or
existence of any Lien on all or substantially all of the Collateral in any
transaction or series of related transactions to secure any Obligations other
than Obligations owing to the Secured Parties under the Loan Documents, (v)
amend Section 2.13 or this Section 8.1, (b) no amendment, waiver or consent
shall, unless in writing and signed by the Required Lenders and each Lender
(other than any Lender that is, at such time, a Defaulting Lender) that has a
Commitment under the Term A Facility, Term B Facility or Revolving Credit
Facility if such Lender is directly and adversely affected by such amendment,
waiver or consent, (i) increase the Commitments of such Lender, (ii) reduce the
principal of, or interest on, the Notes held by such Lender or any fees or other
amounts stated to be payable hereunder to such Lender or (iii) postpone any date
fixed for any payment of principal of, or interest on, the Notes held by such
Lender or any fees or other amounts payable hereunder to such Lender and (c) no
amendment, waiver or consent shall, unless in writing and signed by the Required
Lenders and Lenders (other than any Lender Party that is, at such time, a
Defaulting Lender) holding at least a majority in interest of the aggregate
Commitments (whether used or unused) under the Term A Facility, Term B Facility
or Revolving Credit Facility if such Lenders under any of the foregoing
Facilities are directly and adversely affected by such amendment, waiver or
consent, change the allocation or order of application of any prepayment set
forth in Section 2.6; provided further that no amendment, waiver or consent
shall, unless in writing and signed by each Issuing Bank, as the case may be, in
addition to the Lenders required above to take such action, affect the rights or
obligations of the Issuing Bank under this Agreement; and provided further that
no amendment, waiver or consent shall, unless in writing and signed by an Agent
in addition to the Lenders required above to take such action, affect the rights
or duties of such Agent under this Agreement or the other Loan Documents.
SECTION 8.2. NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and mailed, telegraphed, telecopied, telexed or delivered,
if to the Borrower, at its address at Amkor Technology, Inc., Goshen Corporate
Park, 0000 Xxxxxxxxxx Xxxxx, Xxxx Xxxxxxx, XX 00000, (Telecopier: 610-431-9967),
Attention: Xxxxxxx X. Xxxxx, Chief Financial Officer; if to any Initial Lender
or any Initial Issuing Bank, at its Domestic Lending Office specified opposite
its name on Schedule I hereto; if to any other Lender Party, at its Domestic
Lending Office specified in the Assignment and Acceptance pursuant to which it
became a Lender Party; if to the Collateral Agent or the Administrative Agent,
at its address at 0 Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx 00000
(Telecopier: 302-894 6120), Attention: Xxxxx Xxxxx; and if to Xxxxxxx Xxxxx
Xxxxxx Inc., at its address at 000 Xxxxxxxxx Xx., Xxx Xxxx, XX 00000
(Telecopier: 212-723-8544), Attention: Xxxxxx Xxxx, Director or, as to the
Borrower or the Administrative Agent, at such other address as shall be
designated by such party in a written notice to the other parties and, as to
each other party, at such other address as shall be designated by such party in
a written notice to the Borrower and the Administrative Agent. All such notices
and communications shall, when mailed, telegraphed, telecopied or telexed, be
effective when deposited in the mails, delivered to the telegraph company,
transmitted by telecopier or confirmed by telex answerback, respectively, except
that notices and communications to any Agent pursuant to Article II, III or VII
shall not be effective until received by such Agent. Delivery by telecopier
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of an executed counterpart of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be executed and delivered
hereunder shall be effective as delivery of an original executed counterpart
thereof.
SECTION 8.3. NO WAIVER; REMEDIES. No failure on the part of any
Lender Party or any Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.4. COSTS AND EXPENSES. (a) The Borrower agrees to pay
on demand (i) all costs and expenses of each Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of
the Loan Documents (including (A) all due diligence, collateral review,
syndication, transportation, computer, duplication, appraisal, audit, insurance,
consultant, search, filing and recording fees and expenses and (B) the
reasonable fees and expenses of counsel for each Agent with respect thereto,
with respect to advising such Agent as to its rights and responsibilities, or
the perfection, protection or preservation of rights or interests, under the
Loan Documents, with respect to negotiations with any Loan Party or with other
creditors of any Loan Party or any of its Subsidiaries arising out of any
Default or any events or circumstances that may give rise to a Default and with
respect to presenting claims in or otherwise participating in or monitoring any
bankruptcy, insolvency or other similar proceeding involving creditors' rights
generally and any proceeding ancillary thereto) and (ii) all costs and expenses
of each Agent and each Lender Party in connection with the enforcement of the
Loan Documents, whether in any action, suit or litigation, or any bankruptcy,
insolvency or other similar proceeding affecting creditors' rights generally
(including the reasonable fees and expenses of counsel for the Administrative
Agent and each Lender Party with respect thereto).
(b) The Borrower agrees to indemnify and hold harmless each
Agent, each Lender Party and each of their Affiliates and their respective
officers, directors, employees, agents and advisors (each, an "Indemnified
Party") from and against any and all claims, damages, losses, liabilities and
expenses (including reasonable fees and expenses of counsel) that may be
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of (including in connection
with any investigation, litigation or proceeding or preparation of a defense in
connection therewith) (i) the Facilities (including the Existing Credit
Agreement), the actual or proposed use of the proceeds of the Advances or the
Letters of Credit, the Transaction Documents or any of the transactions
contemplated thereby or (ii) the actual or alleged presence of Hazardous
Materials on any property of any Loan Party or any of its Subsidiaries or any
Environmental Action relating in any way to any Loan Party or any of its
Subsidiaries, except to the extent such claim, damage, loss, liability or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct. In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section 8.4(b) applies, such indemnity
shall be effective whether or not such investigation, litigation or proceeding
is brought by any Loan Party, its directors, shareholders or creditors or an
Indemnified Party or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated by the Transaction Documents are
consummated. The Borrower also agrees not to assert any claim against any Agent,
any Lender Party or any of their Affiliates, or any of their respective
officers, directors, employees, attorneys and agents, on any theory of
liability, for indirect, consequential or punitive damages arising out of or
otherwise relating to the Facilities, the actual or proposed use of the proceeds
of the Advances or the Letters of Credit, the Transaction Documents or any of
the transactions contemplated by the Transaction Documents.
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(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender Party other than on the last day of the Interest Period for such Advance,
as a result of a payment or Conversion pursuant to Section 2.6, 2.9(b)(i) or
2.10(d), acceleration of the maturity of the Notes pursuant to Section 6.1 or
for any other reason, or by an Eligible Assignee to a Lender Party other than on
the last day of the Interest Period for such Advance upon an assignment of
rights and obligations under this Agreement pursuant to Section 8.7 as a result
of a demand by the Borrower pursuant to Section 8.7(a), or if the Borrower fails
to make any payment or prepayment of an Advance for which a notice of prepayment
has been given or that is otherwise required to be made, whether pursuant to
Section 2.4, 2.6 or 6.1 or otherwise, the Borrower shall, upon demand by such
Lender Party (with a copy of such demand to the Administrative Agent), pay to
the Administrative Agent for the account of such Lender Party any amounts
required to compensate such Lender Party for any additional losses, costs or
expenses that it may reasonably incur as a result of such payment or Conversion
or such failure to pay or prepay, as the case may be, including any loss
(including loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by any
Lender Party to fund or maintain such Advance.
(d) If any Loan Party fails to pay when due any costs,
expenses or other amounts payable by it under any Loan Document, including fees
and expenses of counsel and indemnities, such amount may be paid on behalf of
such Loan Party by the Administrative Agent or any Lender Party, in its sole
discretion.
(e) Without prejudice to the survival of any other agreement
of any Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrower contained in Sections 2.10 and 2.12 and this Section
8.4 shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under any of the other Loan Documents.
SECTION 8.5. RIGHT OF SET-OFF. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the request
or the granting of the consent specified by Section 6.1 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.1, each Agent and each Lender Party and each of their
respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and otherwise 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 such Agent, such Lender Party
or such Affiliate to or for the credit or the account of the Borrower against
any and all of the Obligations of the Borrower now or hereafter existing under
the Loan Documents, irrespective of whether such Agent or such Lender Party
shall have made any demand under this Agreement or such Note or Notes and
although such obligations may be unmatured. Each Agent and each Lender Party
agrees promptly to notify the Borrower after any such set-off and application;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Agent and each
Lender Party and their respective Affiliates under this Section 8.5 are in
addition to other rights and remedies (including other rights of set-off) that
such Agent, such Lender Party and their respective Affiliates may have.
SECTION 8.6. BINDING EFFECT. This Agreement shall become
effective when it shall have been executed by the Borrower and each Agent and
the Administrative Agent shall have been notified by each Initial Lender and
each Initial Issuing Bank that such Initial Lender and such Initial Issuing Bank
has executed it and thereafter shall be binding upon and inure to the benefit of
the Borrower, each Agent and each Lender Party and their respective successors
and
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assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the Lender
Parties.
SECTION 8.7. ASSIGNMENTS AND PARTICIPATIONS. (a) Each Lender may
and, so long as no Default shall have occurred and be continuing, if demanded by
the Borrower (following a demand by such Lender pursuant to Section 2.10 or
2.12) upon at least five Business Days' notice to such Lender and the
Administrative Agent, will assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment or Commitments, the Advances owing to it and the Note
or Notes held by it to the extent requested pursuant to Section 2.16(a));
provided, however, that (i) each such assignment shall be of a uniform, and not
a varying, percentage of all rights and obligations under and in respect of any
or all Facilities, provided, however, that nothing in this clause (i) shall
prevent a Lender from assigning an interest in a single Facility if such Lender
has an interest in more than one Facility, (ii) except in the case of an
assignment to a Person that, immediately prior to such assignment, was a Lender,
an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of
all of a Lender's rights and obligations under this Agreement, the aggregate
amount of the Commitments being assigned to such Eligible Assignee pursuant to
such assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $2,500,000 and shall
be in an integral multiple of $1,000,000 in excess thereof under each Facility
for which a Commitment is being assigned, (iii) each such assignment shall be to
an Eligible Assignee, (iv) each such assignment made as a result of a demand by
the Borrower pursuant to this Section 8.7(a) shall be arranged by the Borrower
after consultation with the Administrative Agent and shall be either an
assignment of all of the rights and obligations of the assigning Lender under
this Agreement or an assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such assignments that
together cover all of the rights and obligations of the assigning Lender under
this Agreement, (v) no Lender shall be obligated to make any such assignment as
a result of a demand by the Borrower pursuant to this Section 8.7(a) unless and
until such Lender shall have received one or more payments from either the
Borrower or one or more Eligible Assignees in an aggregate amount at least equal
to the aggregate outstanding principal amount of the Advances owing to such
Lender, together with accrued interest thereon to the date of payment of such
principal amount and all other amounts payable to such Lender under this
Agreement, (vi) no such assignments shall be permitted without the consent of
the Administrative Agent and the Syndication Agent (such consents not to be
unreasonably withheld or delayed) and (vii) the parties to each such assignment
shall execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with any Note
or Notes subject to such assignment and a processing and recordation fee of
$3,500 (except in the case of an assignment to a Lender or any Affiliate of a
Lender or any Approved Fund and except for any assignment by either Syndication
Agent or any other of their respective Affiliates); provided, however, that for
each such assignment made as a result of a demand by the Borrower pursuant to
this Section 8.7(a), the Borrower shall pay to the Administrative Agent the
applicable processing and recordation fee.
(b) Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in such Assignment and Acceptance,
(i) the assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender or
Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank
assignor thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights (other than its rights under Sections 2.10, 2.12 and 8.4 to the
extent any claim thereunder relates to an event arising prior to
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such assignment) and be released from its obligations under this Agreement (and,
in the case of an Assignment and Acceptance covering all of the remaining
portion of an assigning Lender's or Issuing Bank's rights and obligations under
this Agreement, such Lender or Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and
Acceptance, each Lender Party assignor thereunder and each assignee thereunder
confirm to and agree with each other and the other parties thereto and hereto as
follows: (i) other than as provided in such Assignment and Acceptance, such
assigning Lender Party makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with any Loan Document or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, any Loan Document or any other
instrument or document furnished pursuant thereto; (ii) such assigning Lender
Party makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any Loan Party or the performance or
observance by any Loan Party of any of its obligations under any Loan Document
or any other instrument or document furnished pursuant thereto; (iii) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.1 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon any Agent, such assigning
Lender Party or any other Lender Party and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes each Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Loan Documents as are delegated to
such Agent by the terms hereof and thereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender or
Issuing Bank, as the case may be.
(d) The Administrative Agent, acting for this purpose (but
only for this purpose) as the agent of the Borrower, shall maintain at its
address referred to in Section 8.2 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the names
and addresses of the Lender Parties and the Commitment under each Facility of,
and principal amount of the Advances owing under each Facility to, each Lender
Party from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agents and the Lender Parties shall treat each Person whose name
is recorded in the Register as a Lender Party hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Agent or any Lender Party at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender Party and an assignee, together with any Note or
Notes subject to such assignment, the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is in substantially the form of
Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower and each other Agent. In the case of any assignment by a
Lender, within five Business Days after its receipt of such notice, the
Borrower, at its own expense, shall execute and deliver to the Administrative
Agent in exchange for the surrendered Note or Notes a
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new Note (to the extent requested pursuant to Section 2.16(a)) to the order of
such Eligible Assignee in an amount equal to the Commitment assumed by it under
each Facility pursuant to such Assignment and Acceptance and, if any assigning
Lender has retained a Commitment hereunder under such Facility, a new Note (to
the extent requested pursuant to Section 2.16(a)) to the order of such assigning
Lender in an amount equal to the Commitment retained by it hereunder. Such new
Note or Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Note or Notes, shall be dated the effective
date of such Assignment and Acceptance and shall otherwise be in substantially
the form of Exhibit A-1 or A-2 hereto, as the case may be.
(f) Each Issuing Bank may assign to one or more Eligible
Assignees all or a portion of its rights and obligations under the undrawn
portion of its Letter of Credit Commitment at any time; provided, however,
that(i) except in the case of an assignment to a Person that immediately prior
to such assignment was an Issuing Bank or an assignment of all of an Issuing
Bank's rights and obligations under this Agreement, the amount of the Letter of
Credit Commitment of the assigning Issuing Bank being assigned pursuant to each
such assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $2,500,000 and shall
be in an integral multiple of $1,000,000 in excess thereof, (ii) each such
assignment shall be to an Eligible Assignee and (iii) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with a processing and recordation fee of $3,500.
(g) Each Lender Party may sell participations to one or more
Persons (other than any Loan Party or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitments, the Advances owing to it and the Note or Notes (if
any) held by it); provided, however, that (i) such Lender Party's obligations
under this Agreement (including its Commitments) shall remain unchanged, (ii)
such Lender Party shall remain solely responsible to the other parties hereto
for the performance of such obligations, (iii) such Lender Party shall remain
the holder of any such Note for all purposes of this Agreement, (iv) the
Borrower, the Agents and the other Lender Parties shall continue to deal solely
and directly with such Lender Party in connection with such Lender Party's
rights and obligations under this Agreement and (v) no participant under any
such participation shall have any right to approve any amendment or waiver of
any provision of any Loan Document, or any consent to any departure by any Loan
Party therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Notes, or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, or release all or
substantially all of the Collateral.
(h) Any Lender Party may, in connection with any assignment
or participation or proposed assignment or participation pursuant to this
Section 8.7, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
Party by or on behalf of the Borrower; provided, however, that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender Party.
(i) In addition to the assignment mechanics set forth in
Sections 8.7(a) through (f), any Lender Party, (a "Granting Lender") may grant
to a special purpose funding vehicle identified as such in writing from time to
time by the Granting Lender to the
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Administrative Agent and the Borrower (an "SPC") the option to provide all or
any part of any Advance that such Granting Lender would otherwise be obligated
to make pursuant to this Agreement, provided that (i) nothing herein shall
constitute a commitment by any SPC to fund any Advance, and (ii) if an SPC
elects not to exercise such option or otherwise fails to make all or any part of
such Advance, the Granting Lender shall be obligated to make such Advance
pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if,
such Advance were made by such Granting Lender. Each party hereto hereby agrees
that (i) no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement for which a Lender Party would otherwise be liable and (ii)
no SPC shall be entitled to the benefits of Sections 2.10 and 2.12 (or any other
increased costs protection provision). Notwithstanding anything to the contrary
contained in this Agreement, any SPC may (i) with notice to, but without prior
consent of, the Borrower, the Syndication Agent and the Administrative Agent and
with the payment of a processing fee of $500, assign all or any portion of its
interest in any Advance to the Granting Lender and (ii) disclose on a
confidential basis any non-public information relating to its funding of
Advances to any rating agency, commercial paper dealer or provider of any surety
or guarantee or credit or liquidity enhancement to such SPC. This subsection
8.7(h) may not be amended without the prior written consent of each Granting
Lender, all or any part of whose Advances are being funded by the SPC at the
time of such amendment. For the avoidance of doubt, with respect to the Agents,
the other Lender Parties and the Borrower, the Granting Lender shall for all
purposes, including the approval of any amendment or waiver of any provision of
any Loan Document or the obligation to pay any amount otherwise payable by the
Granting Lender under the Loan Documents, be the Lender Party of record
hereunder.
(j) Notwithstanding any other provision set forth in this
Agreement, any Lender Party may at any time create a security interest in all or
any portion of its rights under this Agreement (including the Advances owing to
it and the Note or Notes held by it, if any) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
(k) Any Lender that is a fund that invests in bank loans may
pledge all or any portion of the Advances owing to it and the Note or Notes, if
any, held by it to the trustee for holders of obligations owed, or securities
issued, by such fund as security for such obligations or securities; provided,
that unless and until such trustee actually becomes a Lender in compliance with
the other provisions of this Section 8.7, (i) no such pledge shall release the
pledging Lender from any of its obligations under the Loan Documents and (ii)
such trustee shall not be entitled to exercise any of the rights of a Lender
under the Loan Documents even though such trustee may have acquired ownership
rights with respect to the pledged interest through foreclosure or otherwise.
SECTION 8.8. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of an original executed
counterpart of this Agreement.
SECTION 8.9. NO LIABILITY OF THE ISSUING BANKS. The Borrower
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. Neither
any Issuing Bank nor any of its officers or directors shall be liable or
responsible for: (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith; (b)
the validity, sufficiency
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or genuineness of documents, or of any endorsement thereon, even if such
documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (c) payment by such Issuing Bank against presentation of
documents that do not comply with the terms of a Letter of Credit, including
failure of any documents to bear any reference or adequate reference to the
Letter of Credit; or (d) any other circumstances whatsoever in making or failing
to make payment under any Letter of Credit, except that the Borrower shall have
a claim against such Issuing Bank, and such Issuing Bank shall be liable to the
Borrower, to the extent of any direct, but not consequential, damages suffered
by the Borrower that the Borrower proves were caused by (i) such Issuing Bank's
willful misconduct or gross negligence as determined in a final, non-appealable
judgment by a court of competent jurisdiction in determining whether documents
presented under any Letter of Credit comply with the terms of the Letter of
Credit or (ii) such Issuing Bank's willful failure to make lawful payment under
a Letter of Credit after the presentation to it of a draft and certificates or
other document strictly complying with the terms and conditions of the Letter of
Credit. In furtherance and not in limitation of the foregoing, such Issuing Bank
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary.
SECTION 8.10. CONFIDENTIALITY. Neither any Agent nor any Lender
Party shall disclose any Confidential Information to any Person without the
consent of the Borrower, other than (a) to such Agent's or such Lender Party's
Affiliates and their officers, directors, employees, agents and advisors, to
Approved Funds and to actual or prospective Eligible Assignees and participants,
and then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process, (c) as requested or required by any state,
federal or foreign authority or examiner, including the National Association of
Insurance Commissioners or any similar organization or quasi-regulatory
authority regulating such Lender Party, (d) to any rating agency when required
by it, provided that, prior to any such disclosure, such rating agency shall
undertake to preserve the confidentiality of any Confidential Information
relating to the Loan Parties received by it from such Lender Party and (e) to
any direct or indirect contractual counterparty in swap agreements or such
contractual counterparty's professional advisor (so long as such contractual
counterparty or professional advisor to such contractual counterparty agrees to
be bound by the provisions of this Section 8.10).
SECTION 8.11. RELEASE OF COLLATERAL. Upon the sale, lease,
transfer or other disposition of any item of Collateral of any Loan Party in
accordance with the terms of the Loan Documents, the Collateral Agent will, at
the Borrower's expense, execute and deliver to such Loan Party such documents as
such Loan Party may reasonably request to evidence the release of such item of
Collateral from the assignment and security interest granted under the
Collateral Documents in accordance with the terms of the Loan Documents.
SECTION 8.12. JURISDICTION, ETC.
(a) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement or any
of the other Loan Documents to which it is a party, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted by law, in such federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any
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action or proceeding relating to this Agreement or any of the other Loan
Documents in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any of the other Loan Documents to which it is a party in any New York State or
federal court. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
SECTION 8.13. GOVERNING LAW. This Agreement and the Notes shall
be governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.14. WAIVER OF JURY TRIAL. Each of the Borrower, the
Agents and the Lender Parties irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to any of the Loan Documents, the Advances
or the actions of any Agent or any Lender Party in the negotiation,
administration, performance or enforcement thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
AMKOR TECHNOLOGY, INC.
By: Xxxxxxx X. Xxxxx
Title: Vice President
CITICORP USA, INC.,
as Administrative Agent and Collateral Agent
By: Xxxxxxxxx Xxx
Title: Vice President
XXXXXXX XXXXX XXXXXX INC.,
as Sole Book Manager and Arranger
By: Xxxxxxxxx Xxx
Title: Vice President
DEUTSCHE BANC ALEX.XXXXX INC.,
as Syndication Agent and Arranger
By: Xxxx X. Xxxx
Title: Managing Director
By: Xxxxxx X. Xxxxxxxx, Xx.
Title: Managing Director
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LENDERS:
ABN AMRO BANK N.V.
By: Xxxxxxx X. XxXxxxx
Title: Group Vice President
By: Xxxxxxx X. Xxxxx
Title: Vice President
AERIES FINANCE-II LTD
By: INVESCO Senior Secured Management, Inc.
As Sub-Managing Agent
By: Xxxxxx Xxxxxxx
Title: Authorized Signatory
AIM FLOATING RATE FUND
By: INVESCO Senior Secured Management, Inc.
As Attorney in Fact
By: Xxxxxx Xxxxxxx
Title: Authorized Signatory
AMARA-1 FINANCE LTD.
By: INVESCO Senior Secured Management, Inc.
As Sub-advisor
By: Xxxxxx Xxxxxxx
Title: Authorized Signatory
AMARA-2 FINANCE LTD.
By: INVESCO Senior Secured Management, Inc.
As Sub-advisor
By: Xxxxxx Xxxxxxx
Title: Authorized Signatory
AMMC CDO I, LIMITED
By: American Money Management Corp.
as Collateral Manager
By: Xxxxx X. Xxxxx
Title: Vice President
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AMMC CDO II, LIMITED
as Collateral Manager
By: Xxxxx X. Xxxxx
Title: Vice President
APEX (IDM) CDO-1, LTD.
By: Xxxx Xxxxxxxxx
Title: Director
ARES LEVERAGED INVESTMENT FUND, L.P.
By: ARES Management, L.P.
Its: General Partner
By: Xxxxxxxxxxx X. Xxxxxx
Title: Authorized Signatory
ARES LEVERAGED INVESTMENT FUND II, L.P.
By: ARES Management II, L.P.
Its: General Partner
By: Xxxxxxxxxxx X. Xxxxxx
Title: Authorized Signatory
ARES III CLO Ltd..
By: ARES CLO Management, L.P.
Investment Manager
By: Xxxxxxxxxxx X. Xxxxxx
Title: Authorized Signatory
ARES IV CLO LTD.
By: Ares CLO Management IV, L.P.
Investment Manager
By: Ares CLO XX XX, LLC,
Its Managing Member
By: Xxxxxxxxxxx X. Xxxxxx
Title: Authorized Signatory
AVALON CAPITAL LTD.
By: INVESCO Senior Secured Management, Inc.
As Portfolio Advisor
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By: Xxxxxx Xxxxxxx
Title: Authorized Signatory
AVALON CAPITAL LTD. 2
By: INVESCO Senior Secured Management, Inc.
As Portfolio Advisor
By: Xxxxxx Xxxxxxx
Title: Authorized Signatory
BANK OF AMERICA
as Initial Lender
By: Xxxxxx Xxxxxxxxx
Title: Principal
BANK OF TOKYO MITSUBISHI TRUST
as Initial Lender
By: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
BANKERS TRUST COMPANY
By: Xxxx Jelly
Title: Authorized Signatory
BARCLAYS BANK PLC
as Initial Lender
By: Xxxx Xxxxxxxx
Title: Director
BAVARIA TRR CORPORATION
as Initial Lender
By: Xxxx Xxxxx
Title: Vice President
BLACK DIAMOND CLO 1998-1 LTD.
By: Xxxxx Egglishaw
Title: Authorized Signatory
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BLACK DIAMOND CLO 2000-1 LTD.
By: Xxxxx Xxxx
Title: Authorized Signatory
BLACK DIAMOND INTERNATIONAL FUNDING, LTD.
By: Xxxxx Xxxx
Title: Authorized Signatory
BNP PARIBAS
as Initial Lender
By: Xxxx Xxxxxxxx
Title: Managing Director
By: Xxxxxxxxx Xxxxx
Title: Associate
CAPTIVA FINANCE LTD.
as Initial Lender
By: Xxxxx Xxxx
Title: Director
CENTURION CDO II, LTD.
By: American Express Asset Management
Group Inc. as Collateral Manager
By: Xxxxxxx X. Xxxxxxx
Title: Managing Director
CERES II FINANCE LTD.
By: INVESCO Senior Secured Management, Inc
As Sub-Managing Agent (Financial)
By: Xxxxxx Xxxxxxx
Title: Authorized Signatory
CHARTER VIEW PORTFOLIO
By: INVESCO Senior Secured Management, Inc
As Investment Advisor
By: Xxxxxx Xxxxxxx
Title: Authorized Signatory
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CITIBANK, N.A.
as Initial Lender
By: Xxxxxxx Xxxxxx
Title: Vice President
CITIBANK N.A.
as Additional Investment Manager for and on Behalf
of FIVE FINANCE CORPORATION
as a Lender
By: Xxxx Xxxxx
Title: Authorized Signatory
By: Xxxxx X. Xxxxxx
Title: Vice President
CITADEL HILL 2000 LTD.
as Initial Lender
By: X. Xxxxxxxx
Title: Authorized Signatory
COLISEUM FUNDING LTD.
By: Travelers Asset Management
International Company LLC
By: Xxxxxxx X. XxXxxxxx
Title: Assistant Investment Officer
COLUMBUS LOAN FUNDING LTD.
By: Travelers Asset Management
International Company LLC
By: Xxxxxxx X. XxXxxxxx
Title: Assistant Investment Officer
COMERICA BANK
By: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
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CYPRESSTREE INVESTMENT PARTNERS I, LTD.,
By: CypressTree Investment Management
Company, Inc., as Portfolio Manager
By: P. Xxxxxxx Xxxx
Title: Principal
CYPRESSTREE INVESTMENT PARTNERS II, LTD.,
By: CypressTree Investment Management
Company, Inc., as Portfolio Manager
By: P. Xxxxxxx Xxxx
Title: Principal
CYPRESSTREE INVESTMENT MANAGEMENT
COMPANY, INC.
As: Attorney-in-Fact and on behalf of First Allmerica
Financial Life Insurance Company as Portfolio
Manager
By: P. Xxxxxxx Xxxx
Title: Principal
NORTH AMERICAN SENIOR FLOATING RATE FUND
By: CypressTree Investment Management Company,
Inc. as Portfolio Manager
By: P. Xxxxxxx Xxxx
Title: Principal
ELC (CAYMAN) Ltd.
CDO Series 1999-I
By: Xxxx Xxxxxxxxx
Title: Director
ELC (CAYMAN) Ltd.1999-III
By: Xxxx Xxxxxxxxx
Title: Director
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ERSTE Bank
as Initial Lender
By: Xxxx Xxx
Title: Vice President
By: Xxxx X. Xxxxxxx
Title: Managing Director
FIRST UNION NATIONAL BANK
By: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
FREMONT INVESTMENT & LOAN
By: Xxxx Xxxxxx
Title: Vice President
GALAXY CLO 1999-1, LTD.
as Initial Lender
By: SAI Investment Advisor,Inc.
its Collateral Manager
By: Xxxxxx X. Xxxxxx
Title: Authorized Agent
HARBOURVIEW CDO II, LTD.
By: Xxxxx Foxhouen
Title: D.V.P.
IBM CREDIT CORPORATION
By: Xxxxxx X. Xxxxxx
Title: Manager of Credit, Commercial
and Specialty Financing
IKB CAPITAL CORPORATION
as Lender
By: Xxxxx Xxxxxx
Title: President
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X.X. XXXXXXX MARKET VALUE FUND, L.P.
By: Whitney Market Value GP, LLC,
General Partner
By: Xxxxxxx X. XxXxxxxx
Title: Managing Director
KEYBANK NATIONAL ASSOCIATION
By: Xxxx Xxxxxxxxxx
Title: Vice President
KZH CYPRESSTREE-1 LLC
By: Xxxxxxxx Xxxx
Title: Authorized Agent
KZH SHOSHONE LLC
By: Xxxxxxxx Xxxx
Title: Authorized Agent
KZH SOLEIL LLC
By: Xxxxxxxx Xxxx
Title: Authorized Agent
KZH SOLEIL-2 LLC
By: Xxxxxxxx Xxxx
Title: Authorized Agent
KZH STEALING LLC
By: Xxxxxxxx Xxxx
Title: Authorized Agent
LIBERTY-XXXXX XXX ADVISOR FLOATING RATE
ADVANTAGE FUND
by Xxxxx Xxx & Farmham Incorporated
as Advisor
By: Xxxxx X. Good
Title: Sr. Vice President & Portfolio
Manager
105
107
LONG LANE MASTER TRUST IV
By: Fleet National Bank as Trust Administrator
By: Xxxxx Xxxxxx
Title: Authorized Signatory
MASTER SENIOR FLOATING RATE TRUST
By: Xxxxxx Xxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX GLOBAL INVESTMENT SERIES:
BANK LOAN INCOME PORTFOLIO
By: Xxxxxxx Xxxxx Investment Managers, L.P.
as Investment Advisor
By: Xxxxxx Xxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX SENIOR FLOATING RATE FUND, INC.
By: Xxxxxx Xxxxxx
Title: Authorized Signatory
METROPOLITAN PROPERTY AND CASUALTY
INSURANCE COMPANY
By: Xxxxx X. Xxxxxxx
Title: Director
ML CLO XII PILGRIM AMERICA (CAYMAN) LTD.
By: ING Pilgrim Investment
as its investment manager
By: Xxxxxxx X. XxXxxxx, CFA
Title: Vice President
106
108
ML CLO XX PILGRIM AMERICA (CAYMAN) LTD.
By: ING Pilgrim Investment
as its investment manager
By: Xxxxxxx X. XxXxxxx, CFA
Title: Vice President
MOUNTAIN CAPITAL CLO II LTD.,
as Initial Lender
By: Xxxxxx X. Xxxxx
Title: Authorized Signatory
NORTHWOODS CAPITAL II, LIMITED
By: Xxxxxx, Xxxxxx & Co., L.P., as Collateral
Manager
By: Xxxx X. Xxxxxx
Title: Managing Director
OASIS COLLATERALIZED HIGH INCOME PORTFOLIO-1 LTD.
By: INVESCO Senior Secured Management, Inc
as Subadvisor
By: Xxxxxx Xxxxxxx
Title: Authorized Signatory
OCTAGON INVESTMENT PARTNERS II, LLC
By: Octagon Investment Partners II, LLC
as sub-investment manager
By: Xxxxxxx X. Xxxxxxxxx
Title: Portfolio Manager
OCTAGON INVESTMENT PARTNERS III, LLC
By: Octagon Credit Investors, LLC
as portfolio manager
By: Xxxxxxx X. Xxxxxxxxx
Title: Portfolio Manager
107
109
XXXXXXXXXXX SENIOR FLOATING RATE FUND
as Initial Lender [and Initial Issuing Bank]
By: Xxxxx Foxhuren
Title: A.V.P.
OSPREY INVESTMENTS PORTFOLIO
By: Citibank, N.A., as Manager
By: Xxxx Xxxxx
Title: Authorized Signatory
PILGRIM AMERICA HIGH INCOME INVESTMENTS INC. LTD.
By: ING Pilgrim Investments
as its investment manager
By: Xxxxxxx X. XxXxxxx, CFA
Title: Vice President
PILGRIM CLO 1999-1 LTD.
By: ING Pilgrim Investments
as its investment manager
By: Xxxxxxx X. XxXxxxx CFA
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
as Initial Lender [and Initial Issuing Bank]
By: Xxxxxxx X. Xxxxxxxxx, Xx.
Title: Vice President
PROMETHEUS INVESTMENT FUNDING NO.1 LTD.
By: CPF Asset Advisory, L.P. as Investment Manager
as Initial Lender
By: Xxxxxxx X. Xxxxxx
Title: Director
By: Xxxxxx Xxxxxx
Title: Associate Director
108
110
Sankaty Advisors, LLC as Collateral Manager for
GREAT POINT CLO 1999-1
CLO 1999-1 LTD.,
as Term lender
By: Xxxxxxxx Xxxxxx
Title: Managing Director
SANKATY HIGH YIELD PARTNERS II, L.P.
By: Xxxxxxxx Xxxxxx
Title: Managing Director
SANKATY HIGH YIELD ASSET PARTNERS L.P.
By: Xxxxxxxx Xxxxxx
Title: Managing Director
SEABOARD CLO 2000 LTD.
as Initial Lender [and Initial Issuing Bank]
By: Xxxxxxxx Xxxxx
Title: Authorized Signatory
SEQUILS PILGRIM-1 LTD.
By: ING Pilgrim Investments
as its investment manager
By: Xxxxxxx X XxXxxxx, CFA
Title: Vice President
SIERRA CLO-I
as Initial Lender
By: Xxxx X. Xxxxxxxxx
Title: Chief Operating Officer
Centre Pacific LLC, Manager
SOCIETE GENERALE
By: Xxxxxxx Xxx
Title: Managing Director
109
111
XXXXXXXXX CLO LTD.
By: Xxxxxxxxx Capital Partners LLC
as its collateral manager
By: Xxxxxxxxxxx X. Xxxxx
Title: Partner
XXXXXXXXX/RMF TRANSATLANTIC CDO LTD.
By: Xxxxxxxxx Capital Partners LLC
as its collateral manager
By: Xxxxxxxxxxx X. Xxxxx
Title: Partner
STRATEGIC MANAGED LOAN PORTFOLIO
By: Citibank, N.A., as manager
By: Xxxx Xxxxx
Title: Authorized Signatory
THE BANK OF NOVA SCOTIA
By: Xxxx Xxxxx
Title: Managing Director
THE FUJI BANK, LIMITED,
as Initial Lender
By: Xxxxxxx Xxxxx
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN
By: Xxxxxxxx Xxxxxx
Title: Senior Vice President
THE SUMITOMO TRUST AND BANKING CO., LTD.
By: Xxxxxxx X. Xxxxxxxx
Title: Vice President
110
112
THE TRAVELERS INSURANCE COMPANY
By: Xxxxxxx X. XxXxxxxx
Title: Assistant Investment Officer
TORONTO DOMINION (NEW YORK), INC.
as Initial Lender
By: Xxxxxx X. Xxxxx
Title: Vice President
XXXXX CLO LTD. 2000-1
By: Xxxx Xxxxxxxxx
Title: Director
WINDSOR LOAN FUNDING, LIMITED
By: Xxxxxxxxx Capital Partners LLC
as its Investment Manager
By: Xxxxxxxxxxx X. Xxxxx
Title: Partner
111
113
TABLE OF CONTENTS
Page
----
Article I Definitions And Accounting Terms...........................................2
Section 1.1. Certain Defined Terms ......................................2
Section 1.2. Computation of Time Periods; Other Definitional Provisions 31
Section 1.3. Accounting Terms ..........................................31
Article II Amounts and Terms of the Advances and the Letters of Credit...............32
Section 2.1. The Advances and the Letters of Credit ....................32
Section 2.2. Making the Advances .......................................33
Section 2.3. Issuance of and Drawings and Reimbursement Under Letters
of Credit .................................................34
Section 2.4. Repayment of Advances .....................................36
Section 2.5. Termination or Reduction of the Commitments ...............38
Section 2.6. Prepayments ...............................................38
Section 2.7. Interest ..................................................40
Section 2.8. Fees ......................................................41
Section 2.9. Conversion of Advances ....................................41
Section 2.10. Increased Costs, Etc. .....................................42
Section 2.11. Payments and Computations .................................43
Section 2.12. Taxes .....................................................45
Section 2.13. Sharing of Payments, Etc. .................................47
Section 2.14. Use of Proceeds ...........................................48
Section 2.15. Defaulting Lenders ........................................48
Section 2.16. Evidence of Debt ..........................................50
Section 2.17. Increase in the Aggregate Commitments .....................51
Article III Conditions of Lending and Issuances of Letters of Credit..................52
Section 3.1. Conditions Precedent to the Effectiveness of this
Agreement .................................................52
Section 3.2. Conditions Precedent to Each Borrowing and Issuance
and Renewal ...............................................54
Section 3.3. Determinations Under Section 3.1 ..........................55
Article IV Representations and Warranties............................................55
Section 4.1. Representations and Warranties of the Borrower.............55
Article V Covenants of the Borrower.................................................61
Section 5.1. Affirmative Covenants .....................................61
Section 5.2. Negative Covenants ........................................67
i
114
TABLE OF CONTENTS
(CONTINUED)
Page
----
Section 5.3. Reporting Requirements ....................................76
Section 5.4. Financial Covenants .......................................79
Article VI Events of Default.........................................................81
Section 6.1. Events of Default .........................................81
Section 6.2. Actions in Respect of the Letters of Credit upon Default ..83
Article VII The Agents .............................................................84
Section 7.1. Authorization and Action ..................................84
Section 7.2. Agents' Reliance, Etc. ....................................84
Section 7.3. CUSA, SSBI, DBAB and Their Affiliates .....................84
Section 7.4. Lender Party Credit Decision ..............................85
Section 7.5. Indemnification ...........................................85
Section 7.6. Successor Administrative Agent and Collateral Agent .......86
Article VIII Miscellaneous............................................................87
Section 8.1. Amendments, Etc. ..........................................87
Section 8.2. Notices, Etc. .............................................88
Section 8.3. No Waiver; Remedies .......................................89
Section 8.4. Costs and Expenses ........................................89
Section 8.5. Right of Set-off ..........................................90
Section 8.6. Binding Effect ............................................90
Section 8.7. Assignments and Participations ............................91
Section 8.8. Execution in Counterparts .................................94
Section 8.9. No Liability of the Issuing Banks .........................94
Section 8.10. Confidentiality ...........................................95
Section 8.11. Release of Collateral .....................................95
Section 8.12. Jurisdiction, Etc. ........................................95
Section 8.13. Governing Law .............................................96
Section 8.14. Waiver of Jury Trial ......................................96
ii
115
TABLE OF CONTENTS
(CONTINUED)
Schedule I - Commitments and Applicable Lending Offices
Schedule II - Intercompany Guarantors
Schedule III - Local Counsel
Schedule 4.1(b) - Subsidiaries
Schedule 4.1(d) - Authorizations, Approvals, Actions, Notices and Filings
Schedule 4.1(o) - Plans, Multiemployer Plans and Welfare Plans
Schedule 4.1(q) - Open Years; Unpaid Tax Liabilities;
Schedule 4.1(s) - Existing Debt
Schedule 4.1(t) - Owned Real Property
Schedule 4.1(u) - Leased Real Property
Schedule 4.1(v) - Investments
Schedule 4.1(w) - Intellectual Property
Schedule 4.1(y) - Liens
Schedule 5.2(p) - New Subsidiaries
Exhibit A-1 - Form of Term B Note
Exhibit A-2 - Form of Revolving Credit Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Borrowing Base Certificate
iii
116
SCHEDULE II TO THE
CREDIT AGREEMENT
INTERCOMPANY GUARANTORS
------------------------------------------------------------
GUARDIAN ASSETS, INC.
------------------------------------------------------------
AMKOR/ANAM ADVANCED PACKAGING, LLC
------------------------------------------------------------
AMKOR/ANAM PILIPINAS, LLC
------------------------------------------------------------
FIRST AMKOR CAYMANS, INC.
------------------------------------------------------------
AMKOR TECHNOLOGY LIMITED
------------------------------------------------------------
P-FOUR, INC
------------------------------------------------------------
AMKOR INTERNATIONAL HOLDINGS, LTD.
------------------------------------------------------------
AMKOR ASSEMBLY & TEST SHANGHAI (CHINA)
------------------------------------------------------------
AMKOR TECHNOLOGY JAPAN, K.K.
------------------------------------------------------------
117
SCHEDULE III TO THE
CREDIT AGREEMENT
LOCAL COUNSEL
Xxx & Xxxxx - Korea
Xxxxxx and Calder - Cayman Islands
Xxxxxxx & Xxxxx Xxxxxxx Xxxx LLP- Arizona
118
SCHEDULE 4.1(b) TO THE
CREDIT AGREEMENT
SUBSIDIARIES
NAME JURISDICTION OWNERSHIP
---- ------------ ---------
Guardian Assets, Inc. Delaware Corporation 100% Amkor Technology,
Inc.
Amkor Wafer Fabrication Services, French Company 100% Amkor Technology,
S.A.R.L. Inc.
Amkor Technology Japan, K.K. Japanese Corporation 100% Guardian Assets,
Inc.
Amkor International Holdings, Ltd. Cayman Islands Company 100% Guardian Assets,
Inc.
Amkor Technology Euro Services, French Company 100% Guardian Assets,
S.A.R.L. Inc.
First Amkor Caymans, Inc. Cayman Islands Company 100% Amkor International
Holdings, Inc.
Amkor Technology Limited Cayman Island Company 100% First Amkor
Caymans, Inc.
P-Four, Inc. Philippines Corp. 100% First Amkor
Caymans, Inc.
Amkor Technology Korea, Inc. Korean Corp. 100% Amkor Technology
Limited
Amkor Assembly & Test Shanghai (China) China Company 100% Amkor Technology,
Inc.
Amkor Technology Hong Kong. Ltd. Hong Kong Company 100% Amkor Technology,
Inc.
Amkor/Anam Advanced Packaging, LLC Philippines Corp. Packaging 40% Amkor Technology
Limited/ 60% P-Four, Inc.
Amkor/Anam Philipinas, LLC Philippines Corp. 40% Amkor Technology
Limited/ 60% P-Four, Inc.
119
SCHEDULE 4.1(d) TO THE
CREDIT AGREEMENT
AUTHORIZATION, APPROVALS, ACTIONS, NOTICES AND FILINGS
None.
120
SCHEDULE 4.1(o) TO THE
CREDIT AGREEMENT
PLANS, MULTIEMPLOYER PLANS AND WELFARE PLANS
None.
121
SCHEDULE 4.1(q) TO THE
CREDIT AGREEMENT
PART I
OPEN YEAR
-----------------------------------------------------------------------------------------------
LOAN PARTY OR SUBSIDIARY NAME JURISDICTION TAXABLE YEAR
-----------------------------------------------------------------------------------------------
Amkor Technology, Inc. U.S. 1998, 1999, 2000
-----------------------------------------------------------------------------------------------
Guardian Assets, Inc. U.S. 1998, 1999, 2000
-----------------------------------------------------------------------------------------------
Amkor Receivables, Inc. U.S. 1998, 1999, 2000
-----------------------------------------------------------------------------------------------
Amkor Technology Inventory Company U.S. 1998, 1999, 2000*
-----------------------------------------------------------------------------------------------
AK Industries, Inc. U.S. 1998, 1999, 2000*
-----------------------------------------------------------------------------------------------
P1 - Amkor Anam Pilipinas, Inc. Philippines 1994, 1997, 1998,
1999, 2000
-----------------------------------------------------------------------------------------------
P2 - Amkor Anam Pilipinas, Inc. Philippines 1997, 1998
(Note: P2 merged with P1 in Dec. 1, 1998)
-----------------------------------------------------------------------------------------------
P3 - Amkor Anam Advanced Packaging, Inc. Philippines 1997, 1998, 1999, 2000
-----------------------------------------------------------------------------------------------
Amkor Precision Machine Co. Philippines 1997, 1998, 1999
-----------------------------------------------------------------------------------------------
Amkor Technology Korea, Inc. Korea 1999, 2000
-----------------------------------------------------------------------------------------------
Amkor Technology Euro Services, S.A.R.L. France 1996, 1997, 1998, 1999,
2000
-----------------------------------------------------------------------------------------------
Amkor Technology Euroservices, Inc. Branch UK 1997, 1998, 1999, 2000
-----------------------------------------------------------------------------------------------
Amkor Technology Japan, K.K. Japan 1999, 2000
-----------------------------------------------------------------------------------------------
Amkor Technology Hong Kong, Ltd. Hong Kong 2000
-----------------------------------------------------------------------------------------------
Amkor Technology Singapore Branch Singapore 1999, 2000
-----------------------------------------------------------------------------------------------
P-Four, Inc. Philippines 1997, 1998, 1999, 2000
-----------------------------------------------------------------------------------------------
Amkor Wafer Fabrication Services, S.A.R.L. France 1997, 1998, 1999, 2000
-----------------------------------------------------------------------------------------------
Amkor Iwate, K.K. Japan 2000
-----------------------------------------------------------------------------------------------
* No activity in 2000 - dissolved January 1, 2001.
PART II
ADJUSTMENTS TO FEDERAL TAX LIABILITY
-----------------------------------------------------------------------------------------------
Interest and Penalties
Loan Party or Subsidiary Name Jurisidiction Taxable Year due
-----------------------------------------------------------------------------------------------
None
-----------------------------------------------------------------------------------------------
122
SCHEDULE 4.1(s) TO THE
CREDIT AGREEMENT
EXISTING DEBT
-----------------------------------------------------------------------------------------------------
Type of Debt Amount of Debt
-----------------------------------------------------------------------------------------------------
Senior Notes Due February 2008 $500,000,000
-----------------------------------------------------------------------------------------------------
Senior Notes, 9.25%, Due May 2006 $425,000,000
-----------------------------------------------------------------------------------------------------
Senior Subordinated Notes, 10.5%, Due May 2009 $200,000,000
-----------------------------------------------------------------------------------------------------
Convertible, Subordinated Notes, 5.75%, Due May 2003 $50,463,000
-----------------------------------------------------------------------------------------------------
Convertible, Subordinated Notes, 5.00%, Due March 2007 $258,750,000
-----------------------------------------------------------------------------------------------------
Note Payable, interest as bank's prime, due in installments with
balance Due April 2004 $11,472,000
** Loan balance paid down during April 2000
-----------------------------------------------------------------------------------------------------
Other Long Term Debt $463,000
-----------------------------------------------------------------------------------------------------
TOTAL LONG-TERM DEBT $1,446,148,000
-----------------------------------------------------------------------------------------------------
123
SCHEDULE 4.1(t) TO THE
CREDIT AGREEMENT
OWNED REAL PROPERTY
1. 0000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx, XX 00000
---------------------------------------------------
Personal Property $1,900,747
Equipment Data Processing $7,960,079
Building $5,000,000
2. 0000 X. Xxxxxxx Xxxx, Xxxxxxxx, XX 00000
---------------------------------------------------
Personal Property $4,265,350
Electronic Data Processing $8,314,137
Equipment $4,500,000
Building $13,700,000
124
SCHEDULE 4.1(u) TO THE
CREDIT AGREEMENT
LEASED REAL PROPERTY
1. 0000 Xxxxxxxxxx Xxxxx, Xxxxxxxxxxx, XX 00000
---------------------------------------------------
Personal Property $1,147,773
Electronic Data Processing $9,276,484
Lessor--The Xxx Trusts
Lessee--Amkor Technology, Inc.
Term--10/1/96 thru 9/30/06
Monthly Rent--$68,537.09
2. 0000 Xxxxx Xxxxx Xxxxxxx 000, Xxxxxx, XX 00000
---------------------------------------------------
Personal Property $293,386
Electronic Data Processing $741,727
Lessor--Xxxxx & Xxxxx Management Services, Inc.
Lessee--Amkor Technology, Inc.
Term--12/1/99 thru 11/30/04
Monthly Rent--$36,444.83
3. 000 Xxxxxxxx Xxx., Xxxxxx, XX 00000
---------------------------------------------------
Personal Property $125,264
Electronic Data Processing $40,755
Lessor--Xxxxx Interest Ltd. Partnership
Lessee--Amkor Technology, Inc.
Term--8/1/98 thru 7/31/02
Monthly Rent--$2,103.75
4. 0000 Xxxxxxxx Xxx., Xxx Xxxx, XX 00000
----------------------------------------------------------
Personal Property $188,882
Electronic Data Processing $97,782
Lessor--The Realty Associates Fund III, L.P., c/o
Insignia/ESG
Lessee--Amkor Technology, Inc.
Term--12/1/99 thru 11/30/04
Monthly Rent--$37,515.30
125
5. Amkor Technology Wafer Fabrication Services
000 Xxxx Xxxx., Xxxxx 000, Xxxxx, XX 00000
----------------------------------------------------------
Personal Property $375,752
Electronic Data Processing $3,911,574
Lessor--MK Plaza Trust c/o American Resurgens Mgmt. Corp.
Lessee--Amkor Technology, Inc.
Term--9/1/97 thru 9/1/00
Monthly Rent--$6,186.67
6. Amkor Technology (Wafer Fabrication Office Included)
0000 Xxxxxxx Xxxxxx, Xxxxx 000, 830, 860, 000 & 000 Xxxxx Xxxxx, XX
-------------------------------------------------------------------
Personal Property $1,358,513
Electronic Data Processing $7,498,947
Lessor--XxXxxxxxxx Management Corporation
Lessee--Amkor Technology, Inc.
Term--4/29/97 thru 11/18/01
Monthly Rent--$79,320.80
126
SCHEDULE 4.1(v) TO THE
CREDIT AGREEMENT
EXISTING INVESTMENTS
-----------------------------------------------------------------------------------------------------
Issuer and Description Maturity Date Amount
-----------------------------------------------------------------------------------------------------
Anam Semiconductor, Inc. Not Available $36,327,000
-----------------------------------------------------------------------------------------------------
XX Xxxxxx Institutional Prime Money Market On Demand $38,074,000
-----------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxx Premier- Institutional Fund On Demand $75,460,000
-----------------------------------------------------------------------------------------------------
Taiwan Semiconductor Technology Not Available $18,045,000
-----------------------------------------------------------------------------------------------------
Tessera, Inc. Not Available $2,500,000
-----------------------------------------------------------------------------------------------------
Miscellaneous other investments Not Available $2,406,000
-----------------------------------------------------------------------------------------------------
TOTAL INVESTMENTS: $172,812,000
-----------------------------------------------------------------------------------------------------
127
SCHEDULE 4.1(w) TO THE
CREDIT AGREEMENT
INTELLECTUAL PROPERTY
Amkor Issued Patents (US)
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
# Patent Number Filed Issued Title
---------------------------------------------------------------------------------------------
1 5,173,338 Exp 04/04/1991 12/22/92 Lead Frame Workholder and
Transport Appartus and Method
---------------------------------------------------------------------------------------------
2 5,183,724 12/18/1990 02/02/93 Method of producing a strip of lead
frames for
Integrated circuit dies in a continuous
system
---------------------------------------------------------------------------------------------
3 5,194,695 11/02/1990 03/16/93 Thermoplastic Semiconductor Package
---------------------------------------------------------------------------------------------
4 5,239,806 11/17/1992 08/31/93 Theromplastic Semiconductor Package
and Method of Producing It
---------------------------------------------------------------------------------------------
5 5,269,210 09/23/1991 12/14/93 Slitter machine for use in manufacturing
Semiconductor devices
---------------------------------------------------------------------------------------------
6 5,305,043 08/27/1992 04/19/94 Method of and apparatus for producing a
strip
of lead frames for integrated circuit
dies in a
continuous system
---------------------------------------------------------------------------------------------
7 5,328,870 11/09/1992 07/12/94 Method for forming plastic molded package
with heat sink for integrated circuit
devices
---------------------------------------------------------------------------------------------
8 5,355,283 04/14/1993 10/11/94 Ball grid array with via interconnection
---------------------------------------------------------------------------------------------
9 5,378,869 03/26/1993 01/03/95 Method for forming an integrated circuit
package with via interconnection
---------------------------------------------------------------------------------------------
10 5,381,042 04/19/1994 01/10/95 Packaged integrated circuit including
heat slug having an exposed surface
---------------------------------------------------------------------------------------------
11 5,455,462 11/15/1993 10/03/95 Plastic molded package with heat sink
for integrated circuit devices
---------------------------------------------------------------------------------------------
12 5,471,011 05/25/1994 11/28/95 Homogeneous Thermoplastic SemiConductor
Chip Carrier Package
---------------------------------------------------------------------------------------------
13 5,478,007 05/11/1994 12/26/95 Method for interconnection of integrated
circuit chip and substrate
---------------------------------------------------------------------------------------------
14 5,482,736 08/04/1994 01/09/96 Method for applying flux to ball grid
array package
---------------------------------------------------------------------------------------------
128
---------------------------------------------------------------------------------------------
15 5,482,898 03/27/1995 01/09/96 Method for forming a semiconductor
device having a thermal dissipator and
electromagnetic shielding
---------------------------------------------------------------------------------------------
16 5,483,100 06/02/1992 01/09/96 Integrated circuit package with via
interconnections formed in a substrate
---------------------------------------------------------------------------------------------
18 5,485,037 03/27/1995 01/16/96 Semiconductor device having a thermal
dissipator and electromagnetic shielding
---------------------------------------------------------------------------------------------
17 5,483,740 Exp 11/28/1994 01/16/96 Method of Making Homogeneous
Thermoplastic Semiconductor Chip
Carrier Package
---------------------------------------------------------------------------------------------
19 5,582,772 06/07/1995 12/10/96 Copper oxide-filled polymer die attach
adhesive composition for semiconductor
package
---------------------------------------------------------------------------------------------
20 5,583,378 05/16/1994 12/10/96 Ball grid array integrated circuit
package with thermal conductor
---------------------------------------------------------------------------------------------
21 5,596,485 03/16/1995 01/21/97 Plastic packaged integrated circuit with
heat spreader
---------------------------------------------------------------------------------------------
22 5,629,561 12/12/1995 05/13/97 Semiconductor package with integral heat
dissipator
---------------------------------------------------------------------------------------------
23 5,635,671 03/16/1994 06/03/97 Mold runner removal from a
substrate-based packaged electronic
device
---------------------------------------------------------------------------------------------
24 5,637,273 10/11/1996 06/10/97 Method for molding of integrated circuit
package
---------------------------------------------------------------------------------------------
25 5,641,946 01/18/1996 06/24/97 Method and circuit board structure for
leveling solder balls in ball grid array
semiconductor packages
---------------------------------------------------------------------------------------------
26 5,641,987 06/07/1995 06/24/97 Heat spreader suitable for use in semi-
Conductor packages having different pad
sizes
---------------------------------------------------------------------------------------------
27 5,650,593 02/06/1995 07/22/97 Thermally enhanced chip carrier package
---------------------------------------------------------------------------------------------
28 5,661,338 12/12/1995 08/26/97 Chip mounting plate construction of lead
frame for semiconductor package
---------------------------------------------------------------------------------------------
29 5,672,909 07/29/1996 09/30/97 Interdigitated wirebond programmable
fixed voltage planes
---------------------------------------------------------------------------------------------
30 5,701,034 05/03/1994 12/23/97 Packaged semiconductor die including
heat sink with locking feature
---------------------------------------------------------------------------------------------
31 5,708,567 11/13/1996 01/13/98 Ball grid array semiconductor package
with ring-type heat sink
---------------------------------------------------------------------------------------------
32 5,712,570 09/19/1995 01/27/98 Method for checking a wire bond of a
semiconductor package
---------------------------------------------------------------------------------------------
33 5,722,161 05/01/1996 03/03/98 Method of making a packaged
semiconductor die including heat sink
with locking feature
---------------------------------------------------------------------------------------------
34 5,723,899 08/29/1995 03/03/98 Semiconductor lead frame having
connection
bar and guide rings
---------------------------------------------------------------------------------------------
16
129
---------------------------------------------------------------------------------------------
35 5,729,432 01/18/1996 03/17/98 Ball grid array semiconductor package
with improved dissipation and
dehumidification effect
---------------------------------------------------------------------------------------------
36 5,740,956 12/12/1995 04/21/98 Bonding method for semiconductor chips
---------------------------------------------------------------------------------------------
37 5,767,446 10/24/1996 06/16/98 Printed circuit board having epoxy
barrier around a throughout slot and
ball grid array semiconductor package
---------------------------------------------------------------------------------------------
38 5,795,818 12/06/1996 08/18/98 Integrated circuit chip to substrate
interconnection and method
---------------------------------------------------------------------------------------------
39 5,796,163 05/23/1997 08/18/98 Solder ball joint
---------------------------------------------------------------------------------------------
40 5,807,768 09/04/1996 09/15/98 Method For Fabricating a Heat
Sink-Integrated Semiconductor Package
---------------------------------------------------------------------------------------------
41 5,827,999 11/14/1994 10/27/98 Homogeneous Chip Carrier Package
---------------------------------------------------------------------------------------------
42 5,829,988 11/14/1996 11/03/98 Socket Assembly for Integrated Circuit
Chip Carrier Packager
---------------------------------------------------------------------------------------------
43 5,838,951 08/28/1996 11/17/98 Wafer Map Conversion Method
---------------------------------------------------------------------------------------------
44 5,852,870 04/24/1996 12/29/98 Method of Making a Grid Array Assembly
---------------------------------------------------------------------------------------------
45 5,854,511 11/14/1996 12/29/98 Semiconductor Package Including Heat
Sink With Layered Conductive Plate And
Non-Conductive Tape Bonding To Leads
---------------------------------------------------------------------------------------------
46 5,854,741 05/17/1996 12/29/98 Unit Printed Circuit Board Carrier Frame
For Ball Grid Array Semiconductor
Packages And Method For Fabricating Ball
Grid Array Semiconductor Packages Using
The Same
---------------------------------------------------------------------------------------------
47 5,858,149 11/14/1996 01/12/99 Process For Bonding Semiconductor Chip
---------------------------------------------------------------------------------------------
48 5,858,815 12/11/1996 01/12/99 Semiconductor Package and Method for
Fabricating the Same
---------------------------------------------------------------------------------------------
Carrier Strip and Molded Flex Circuit
49 5,859,475 04/24/1996 01/12/99 Ball Grid Array
---------------------------------------------------------------------------------------------
50 5,864,470 06/25/1997 01/26/99 Flexible Circuit Board For Ball Grid
Array Semiconductor Package
---------------------------------------------------------------------------------------------
51 5,866,939 12/31/1996 02/02/99 Grid Array Type Lead Frame And Lead End
Grid Array Semiconductor Package
Employing The Same
---------------------------------------------------------------------------------------------
52 5,867,368 09/09/1997 02/02/99 Mounting For A Semiconductor Integrated
Circuit Device
---------------------------------------------------------------------------------------------
53 5,872,399 04/01/1997 02/16/99 Solder Ball Land Metal Structure of Ball
Grid Semiconductor Package
---------------------------------------------------------------------------------------------
55 5,894,008 10/16/1997 04/13/99 A Method for Manufacturing an
Alumina-Silicon Carbide Nanocomposite
---------------------------------------------------------------------------------------------
17
130
---------------------------------------------------------------------------------------------
56 5,897,334 10/15/1997 04/27/99 Method for Reproducing Printed Circuit
Boards For Semiconductor Packages
Including Poor Quality Printed Circuit
Board Units and Methods for Fabricating
Semiconductor Packages Using the
Reproduced Printed Circuit Boards
---------------------------------------------------------------------------------------------
57 5,905,633 12/31/1996 05/18/99 Method of Producing BGA Semiconductor
Packages Using Metal Carrier Frame & BGA
Produced by Such Method
---------------------------------------------------------------------------------------------
58 5,908,317 03/07/1997 06/01/99 Method of Forming Chip Bump Chip Scale
Semiconductor Package, Such Package and
Chip Bump
---------------------------------------------------------------------------------------------
59 5,915,169 12/23/1996 06/22/99 Semiconductor Chip Scale Package and
Method of Producing Such
---------------------------------------------------------------------------------------------
60 5,939,784 09/09/1997 08/17/99 Standing Acoustical Wave Package
---------------------------------------------------------------------------------------------
61 5,949,655 07/17/1998 09/07/99 Mounting Having An Aperture Cover With
Adhesive Locking Features For Flip Chip
---------------------------------------------------------------------------------------------
62 5,950,074 05/26/1998 09/07/99 Method of Making An Integrated Circuit
Package
---------------------------------------------------------------------------------------------
63 5,953,589 08/20/1997 09/14/99 Ball Grid Array Semiconductor Package
With Solder Balls Fused On Printed
Circuit Board
---------------------------------------------------------------------------------------------
64 5,962,810 09/09/1997 10/05/99 Integrated circuit package employing a
transparent encapsulant and a method of
making the package
---------------------------------------------------------------------------------------------
65 5,971,734 09/19/1997 10/26/99 Mold for ball grid array semiconductor
---------------------------------------------------------------------------------------------
66 5,977,624 01/16/1998 11/02/99 Semiconductor Package and Assembly for
Fabricating the Same
---------------------------------------------------------------------------------------------
67 5,981,314 10/31/1996 11/09/99 Near Chip Size Integrated Circuit Package
---------------------------------------------------------------------------------------------
68 5,981,873 05/24/1999 11/09/99 Printed circuit board for ball grid
array semiconductor package and method
for molding ball grid array
semiconductor package using the same
---------------------------------------------------------------------------------------------
69 5,985,695 08/28/1998 11/16/99 Method of making a molded flex circuit
ball grid array
---------------------------------------------------------------------------------------------
70 5,986,334 10/02/1997 11/17/99 Semiconductor Package having light,
thin, simple, and compact structure
---------------------------------------------------------------------------------------------
71 6,013,554 12/30/1998 01/11/00 Method for fabricating an LDD MOS
transistor
---------------------------------------------------------------------------------------------
72 6,020,218 01/26/1998 02/01/00 Method of manufacturing ball grid array
semiconductor package
---------------------------------------------------------------------------------------------
73 6,021,563 06/25/1997 02/08/00 Method for marking poor quality printed
circuit board units of printed circuit
board strip for semiconductor package
---------------------------------------------------------------------------------------------
18
131
---------------------------------------------------------------------------------------------
74 6,028,354 10/14/1997 02/22/00 A microelectronic device package having
a heat sink structure for increasing the
thermal conductivity of the package
---------------------------------------------------------------------------------------------
75 6,034,429 04/18/1997 03/07/00 Method of Making an Integrated Circuit
Package
---------------------------------------------------------------------------------------------
76 6,090,715 12/30/1998 07/18/00 Masking Process for Froming Self-Aligned
Dual Xxxxx or Self-Aligned Field-Doping
Regions
---------------------------------------------------------------------------------------------
77 6,091,141 12/29/1998 07/18/00 Method of Forming Chip Bumps of Bump
Chip Scale Semiconductor Package
---------------------------------------------------------------------------------------------
78 6,092,281 08/28/1998 07/25/00 Electromagnetic Interference Shield
Device and Method
---------------------------------------------------------------------------------------------
79 6,114,217 11/24/1998 09/05/00 Method of Forming Isolation Trenches On A
Semiconductor Substrate
---------------------------------------------------------------------------------------------
80 6,117,193 10/20/1999 09/12/00 Optical Sensor Array Mounting and
Alignment
---------------------------------------------------------------------------------------------
81 6,117,705 03/30/1998 09/12/00 Method of Making Integrated Circuit
Package hHaving Adhesive Bead Supporting
Planar Lid Above Planar Substrates
---------------------------------------------------------------------------------------------
82 6,124,637 09/25/1998 09/26/00 Carrier Strip and Molded Flex Circuit
Ball Grid Array
---------------------------------------------------------------------------------------------
83 6,132,081 12/23/1998 10/17/00 Method of Forming Titanium Silicide by
Heating a Silicon Substrate Having a
Titanium Film and a Method of Making
---------------------------------------------------------------------------------------------
84 6,143,588 10/20/1998 11/07/00 A Method of Making Integrated Circuit
Package Employing a Transparent
Encapsulant
---------------------------------------------------------------------------------------------
85 6,143,981 06/24/1998 11/07/00 Plastic Integrated Circuit Package and
Method and Leadframe for Making the
Package
---------------------------------------------------------------------------------------------
86 6,150,193 05/22/2000 11/21/00 RD Shielded Device
---------------------------------------------------------------------------------------------
87 6,150,709 12/01/1998 11/21/00 Grid Array Type Leadframe Having Lead
Ends in Different Planes
---------------------------------------------------------------------------------------------
88 6,163,463 05/13/1998 12/19/2000 Integrated Circuit Chip to Substrate
Interconnection and Method
---------------------------------------------------------------------------------------------
89 6,198,163 10/18/1999 03/06/2001 Thin Package Integrated Circuit
Including Recessed Heatsink with Exposed
Surface
---------------------------------------------------------------------------------------------
90 6,200,841 12/30/1998 03/07/2001 MOS Transistor That Inhibits
Punchthrough and Method for Fabricating
the Same
---------------------------------------------------------------------------------------------
91 6,201,305 06/09/2000 03/13/2001 Making Solder Ball Mounting Pads on
Substrates
---------------------------------------------------------------------------------------------
19
132
---------------------------------------------------------------------------------------------
92 6,204,131 12/30/1998 03/20/2001 Trench Structure for Isolating
Semiconductor Elements and Method for
Forming the Same
---------------------------------------------------------------------------------------------
Amkor Filed Applications (Foreign)
---------------------------------------------------------------------------------------------
DATE FILED DOCKET # TITLE
---------------------------------------------------------------------------------------------
1 03/24/1993 JP Semiconductor Package with Heat Spreader and
Dissipater
---------------------------------------------------------------------------------------------
2 05/16/1995 XX Xxxx Grid Array Integrated Circuit Package With
Thermal Conductor
---------------------------------------------------------------------------------------------
3 04/23/1997 EP Method of Making Grid Array Assembly
---------------------------------------------------------------------------------------------
4 04/23/1997 JP Method of Making Grid Array Assembly
---------------------------------------------------------------------------------------------
5 04/23/1997 KR Grid Array Assembly and Method of Making
---------------------------------------------------------------------------------------------
6 04/23/1997 JP Molded Flex Circuit Ball Grid Array
---------------------------------------------------------------------------------------------
7 04/23/1997 KR Molded Flex Circuit Ball Grid Array
---------------------------------------------------------------------------------------------
8 04/23/1997 SG Molded Flex Circuit Ball Grid Array
---------------------------------------------------------------------------------------------
9 04/27/1997 CA Method of Making Grid Array Assembly
---------------------------------------------------------------------------------------------
10 05/13/1998 CA Improved Solder Ball Joint
---------------------------------------------------------------------------------------------
11 05/13/1998 EP Improved Solder Ball Joint
---------------------------------------------------------------------------------------------
12 05/13/1998 SG Solder Ball Joint
---------------------------------------------------------------------------------------------
13 09/03/1998 EP Shielded Surface Accoustical Wave Package
---------------------------------------------------------------------------------------------
14 09/03/1998 JP Shielded Surface Accoustical Wave Package
---------------------------------------------------------------------------------------------
15 09/03/1998 KR Shielded Surface Accoustical Wave Package
---------------------------------------------------------------------------------------------
16 09/04/1998 CA Integrated circuit Package employing a Transparent
Encapsulant
---------------------------------------------------------------------------------------------
17 09/04/1998 EP Integrated Circuit Package Employing a Transparent
Encapsulant
---------------------------------------------------------------------------------------------
18 09/04/1998 JP Integrated circuit Package employing a Transparent
Encapsulant
---------------------------------------------------------------------------------------------
19 09/04/1998 KR Integrated circuit Package employing a Transparent
Encapsulant
---------------------------------------------------------------------------------------------
20 09/04/1998 SG Integrated circuit Package employing a Transparent
Encapsulant
---------------------------------------------------------------------------------------------
21 09/08/1998 CA Mounting Having an Aperture Cover with Adhesive
Locking Feature for Flip chip Optical Integrated
Circuit Device
---------------------------------------------------------------------------------------------
22 09/08/1998 JP Mounting Having an Aperture Cover with Adhesive
Locking Feature for Flip chip Optical Integrated
Circuit Device
---------------------------------------------------------------------------------------------
23 09/08/1998 KR Mounting Having an Aperture Cover with Adhesive
Locking Feature for Flip chip Optical Integrated
Circuit Device
---------------------------------------------------------------------------------------------
24 09/08/1998 SG Mounting Having an Aperture Cover with Adhesive
Locking Feature for Flip chip Optical Integrated
Circuit Device
---------------------------------------------------------------------------------------------
25 10/02/1998 EP A Microelectronic Device Package having a Heat Sink
Structure for Increasing the Thermal conductivity of
the Package
---------------------------------------------------------------------------------------------
20
133
---------------------------------------------------------------------------------------------
26 10/02/1998 KR A Microelectronic Device Package having a Heat Sink
Structure for Increasing the Thermal conductivity of
the Package
---------------------------------------------------------------------------------------------
27 10/02/1998 SG A Microelectronic Device Package having a Heat Sink
Structure for Increasing the Thermal conductivity of
the Package
---------------------------------------------------------------------------------------------
28 03/11/1999 CA Method of Making Integrated Circuit Package having
Adhesive Bead Supporting Planar Lid Above Planar
Substrate
---------------------------------------------------------------------------------------------
29 03/11/1999 EP Method of Making Integrated Circuit Package having
Adhesive Bead Supporting Planar Lid Above Planar
Substrate
---------------------------------------------------------------------------------------------
30 03/11/1999 JP Method of Making Integrated Circuit Package having
Adhesive Bead Supporting Planar Lid Above Planar
Substrate
---------------------------------------------------------------------------------------------
31 03/11/1999 KR Method of Making Integrated Circuit Package having
Adhesive Bead Supporting Planar Lid Above Planar
Substrate
---------------------------------------------------------------------------------------------
32 03/11/1999 SG Method of Making Integrated Circuit Package having
Adhesive Bead Supporting Planar Lid Above Planar
Substrate
---------------------------------------------------------------------------------------------
33 06/14/1999 EP Plastic integrated circuit package and method and
leadframe for making the package
---------------------------------------------------------------------------------------------
34 06/14/1999 SG Plastic integrated circuit package and method and
leadframe for making the package
---------------------------------------------------------------------------------------------
35 07/21/1999 EP Plastic Integrated Circuit Device Package and
MicroLeadFrame and Method for Making the Package
---------------------------------------------------------------------------------------------
36 09/28/1999 TW Plastic Integrated Circuit Device Package and
MicroLeadFrame and Method for Making the Package
---------------------------------------------------------------------------------------------
37 10/12/1999 JP Plastice Integrated Circuit Device Package and
MicroLeadFrame and Method for Making the Package
---------------------------------------------------------------------------------------------
38 11/15/1999 TW Core Located Input/Output Design
---------------------------------------------------------------------------------------------
39 02/17/2000 JP Plastic integrated circuit package and method and
leadframe for making the package
---------------------------------------------------------------------------------------------
40 05/11/2000 PCT Low-Cost Printed Circuit Board with Integral Heat
Sink for Semiconductor Package
---------------------------------------------------------------------------------------------
41 05/23/2000 JP Sheet Resin composition and Process for
Manufacturing Semiconductor Device Therewith
---------------------------------------------------------------------------------------------
42 06/02/2000 PCT Plastic Package for an Optical Integrated Circuit
Device and Method of Making
---------------------------------------------------------------------------------------------
43 07/31/2000 PCT Mold Locking Ground Ring
---------------------------------------------------------------------------------------------
44 08/18/2000 PCT Chip-Sized Optical Sensor Package
---------------------------------------------------------------------------------------------
45 10/09/2000 TW Micromachine Package Fabrication Method
---------------------------------------------------------------------------------------------
46 10/09/2000 TW Molded Image Sensor Package Having Lens Holder
---------------------------------------------------------------------------------------------
47 10/16/2000 SG Improved Thin and Heat Radiant Semiconductor Package
and Method for Manufacturing
---------------------------------------------------------------------------------------------
48 10/16/2000 SG Leadframe for Semiconductor Package and Mold for
Molding the Same
---------------------------------------------------------------------------------------------
21
134
---------------------------------------------------------------------------------------------
49 10/16/2000 SG Semiconductor Package Having Increased Solder Joint
Strength
---------------------------------------------------------------------------------------------
50 10/16/2000 SG Clamp and Heat Block for Wire Bonding a
Semiconductor Package Assembly
---------------------------------------------------------------------------------------------
51 10/16/2000 SG Method of Making a Semiconductor Package Having
Improved Defect Testing and Increased Production
Yield
---------------------------------------------------------------------------------------------
52 10/16/2000 SG Semiconductor Package Having Reduced Thickness
---------------------------------------------------------------------------------------------
53 10/16/2000 SG Method and Apparatus for Manufacturing Semiconductor
Packages
---------------------------------------------------------------------------------------------
54 10/16/2000 SG Leadframe and Semiconductor package with Improved
solder Joint Strength
---------------------------------------------------------------------------------------------
55 10/16/2000 SG Semiconductor Package Having Improved Adhesiveness
and Ground Bonding
---------------------------------------------------------------------------------------------
56 10/16/2000 SG Semiconductor Package Leadframe Assembly and Method
of Manufacture
---------------------------------------------------------------------------------------------
57 10/16/2000 SG Improved Method for Making Semiconductor Packages
---------------------------------------------------------------------------------------------
58 11/14/2000 SG Core Located Input/Output Design
---------------------------------------------------------------------------------------------
59 12/09/2000 SG Near Chip Size Semiconductor Package
---------------------------------------------------------------------------------------------
60 12/09/2000 SG Semiconductor Package
---------------------------------------------------------------------------------------------
61 12/09/2000 SG Stackable Semiconductor Package and Method for
Manufacturing Same
---------------------------------------------------------------------------------------------
62 12/09/2000 SG Stackable Semiconductor Package and Method for
Manufacturing Same
---------------------------------------------------------------------------------------------
63 12/09/2000 SG End Grid Array Semiconductor Package
---------------------------------------------------------------------------------------------
64 01/15/2001 TW Protected Image Sensor Package and Fabrication Method
---------------------------------------------------------------------------------------------
Amkor Filed Applications (US)
---------------------------------------------------------------------------------------------
DATE FILED TITLE
---------------------------------------------------------------------------------------------
1 02/17/1998 Method of fabricating semiconductor package
---------------------------------------------------------------------------------------------
2 10/21/1998 Plastic integrated circuit device package and micro-leadframe
and method for making the package
---------------------------------------------------------------------------------------------
3 11/24/1998 LDD CMOS Transistor and a fabrication process thereof
---------------------------------------------------------------------------------------------
4 11/24/1998 Method of forming titanium silicide
---------------------------------------------------------------------------------------------
5 12/01/1998 Grid array assembly
---------------------------------------------------------------------------------------------
6 01/20/1999 Microcircuit die-sawing protector and method
---------------------------------------------------------------------------------------------
7 01/28/1999 Semiconductor package with multilevel lead frame
---------------------------------------------------------------------------------------------
8 01/29/1999 Method of molding a printed circuit board for a semiconductor
package
---------------------------------------------------------------------------------------------
9 01/29/1999 A printed circuit board for ball grid array semiconductor
packages
---------------------------------------------------------------------------------------------
10 02/08/1999 Electrostatic discharge dissipation package and method
---------------------------------------------------------------------------------------------
11 03/02/1999 Test pattern for measuring variations of critical dimensions of
wiring patterns formed in the fabrication of semiconductor
devices
---------------------------------------------------------------------------------------------
12 03/02/1999 narrow deep trench isolation method for semiconductor device
---------------------------------------------------------------------------------------------
13 03/04/1999 Method for forming a metal wiring pattern on a semiconductor
device
---------------------------------------------------------------------------------------------
22
135
---------------------------------------------------------------------------------------------
14 04/07/1999 Thin stackable semiconductor packages
---------------------------------------------------------------------------------------------
15 05/04/1999 Printed circuit board with oval solder ball lands for BGA
semiconductor packages
---------------------------------------------------------------------------------------------
16 05/11/1999 Ball grid array semiconductor package with solder balls fused
on printed circuit board and method for fabricating the same
---------------------------------------------------------------------------------------------
17 05/11/1999 Low Cost Printed Circuit Board with Integral Heat Sink for
Semiconductor Package
---------------------------------------------------------------------------------------------
18 06/03/1999 Plastic package for an optical integrated circuit device and
method of making
---------------------------------------------------------------------------------------------
19 07/07/1999 Near chip size integrated circuit package
---------------------------------------------------------------------------------------------
20 07/30/1999 TSSOP exposed pad options
---------------------------------------------------------------------------------------------
21 08/09/1999 Electronic device package and leadframe and method for making
the package
---------------------------------------------------------------------------------------------
22 08/20/1999 Chip-sized optical sensor package
---------------------------------------------------------------------------------------------
23 08/25/1999 Method of forming an integrated circuit device package tape as
a base
---------------------------------------------------------------------------------------------
24 08/25/1999 A partially cured expansion stabilizer layer on a package
containing an electronic device and method of making and
mounting
---------------------------------------------------------------------------------------------
25 08/30/1999 Wafer-scale production of chip-scale semiconductor packages
using wafer mapping techniques
---------------------------------------------------------------------------------------------
26 08/30/1999 Circuit pattern tape for wafer-scale production of chip size
semiconductor
---------------------------------------------------------------------------------------------
27 08/30/1999 Method of laminating circuit pattern tape on semiconductor wafer
---------------------------------------------------------------------------------------------
28 08/30/1999 Surface acoustical wave flip chip
---------------------------------------------------------------------------------------------
29 09/08/1999 Lead frame used for the fabrication using the same
---------------------------------------------------------------------------------------------
30 09/10/1999 Plastic integrated circuit package and method and leadframe for
making the package
---------------------------------------------------------------------------------------------
31 09/14/1999 Methods for making integrated circuit device packages and
micro-leadframes for the packages
---------------------------------------------------------------------------------------------
32 10/05/1999 Method of making integrated circuit package using a
batch step for curing a die attachment film and a
system for performing
the method
---------------------------------------------------------------------------------------------
33 10/19/1999 Methods and a device for heat treating a semiconductor wafer
having different kinds of impurities
---------------------------------------------------------------------------------------------
34 10/20/1999 Chip-scale semiconductor package of the fan-out type and method
of manufacturing such packages
---------------------------------------------------------------------------------------------
35 10/20/1999 Semiconductor device and method of manufacturing such device
---------------------------------------------------------------------------------------------
36 10/20/1999 Semiconductor device and method of manufacturing such device
---------------------------------------------------------------------------------------------
37 11/05/1999 Integrated circuit device packages and substrates for making
the packages
---------------------------------------------------------------------------------------------
38 11/05/1999 Exposed copper pad polyimide chip carrier
---------------------------------------------------------------------------------------------
39 11/09/1999 Method of making integrated circuit package having adhesive
bead supporting planar lid above planar substrate
---------------------------------------------------------------------------------------------
40 11/09/1999 Chip-Size semiconductor packages
---------------------------------------------------------------------------------------------
41 11/09/1999 MLP Deep Coining Option
---------------------------------------------------------------------------------------------
42 11/12/1999 Cavity MLP
---------------------------------------------------------------------------------------------
43 11/12/1999 A package for an integrated circuit device and passive devices
including electromagnetic interference protection method of
making the package
---------------------------------------------------------------------------------------------
23
136
---------------------------------------------------------------------------------------------
44 11/15/1999 Micro-machine package and method of fabricating
---------------------------------------------------------------------------------------------
45 11/15/1999 Micro-machine package fabrication method
---------------------------------------------------------------------------------------------
46 11/15/1999 Core located input/output design
---------------------------------------------------------------------------------------------
47 11/17/1999 Method of molding plastic semiconductor packages
---------------------------------------------------------------------------------------------
48 11/19/1999 Lead frame with lead separation preventing means, semiconductor
package using the lead frame. And method to fabricate the
semiconductor package
---------------------------------------------------------------------------------------------
49 11/22/1999 Thin image sensor package and method
---------------------------------------------------------------------------------------------
50 11/22/1999 Thin image sensor package and method
---------------------------------------------------------------------------------------------
51 11/23/1999 Method of attaching a sheet of an adhesive film to substrate in
the course of making integrated circuit package
---------------------------------------------------------------------------------------------
52 12/01/1999 Conductive strap attachment process that allows electrical
connection between an integrated circuit die and a lead
---------------------------------------------------------------------------------------------
53 12/08/1999 Molded image sensor package
---------------------------------------------------------------------------------------------
54 12/08/1999 A snap lid image sensor package and method
---------------------------------------------------------------------------------------------
55 12/08/1999 Molded image sensor package having lens holder
---------------------------------------------------------------------------------------------
56 12/08/1999 Method of assembling a snap lid image sensor package
---------------------------------------------------------------------------------------------
57 12/08/1999 Image sensor package having sealed cavity over active area
---------------------------------------------------------------------------------------------
58 12/08/1999 Method of fabricating image sensor packages in an array
---------------------------------------------------------------------------------------------
59 12/10/1999 A microelectronic device package having a heat sink structure
for increasing the thermal conductivity
---------------------------------------------------------------------------------------------
60 12/14/1999 Semiconductor package and method for fabricating the same
---------------------------------------------------------------------------------------------
61 12/14/1999 A wire for a semiconductor package
---------------------------------------------------------------------------------------------
62 01/14/2000 Package for multiple integrated circuits and method
---------------------------------------------------------------------------------------------
63 01/18/2000 Stackable package for integrated circuit
---------------------------------------------------------------------------------------------
64 01/18/2000 Method of making and mounting stackable package for integrated
circuit
---------------------------------------------------------------------------------------------
65 01/24/2000 Package for stacked integrated circuits and method of making
---------------------------------------------------------------------------------------------
66 01/25/2000 Method of forming gate oxynitride for a semiconductor device
---------------------------------------------------------------------------------------------
67 01/25/2000 Protected Image Sensor Package
---------------------------------------------------------------------------------------------
68 01/25/2000 Protected image sensor fabrication method
---------------------------------------------------------------------------------------------
69 02/02/2000 Method of making ultra-thin package for flip chip integrated
circuit device
---------------------------------------------------------------------------------------------
70 02/03/2000 Stackable package for integrated circuit with interposer
---------------------------------------------------------------------------------------------
71 02/04/2000 Making chip size semiconductor packages
---------------------------------------------------------------------------------------------
72 02/14/2000 Method of forming an integrated circuit package using a plastic
tape as a base
---------------------------------------------------------------------------------------------
73 02/16/2000 Low cost thermal BGA
---------------------------------------------------------------------------------------------
74 02/24/2000 Leadframe and heat sink attached semiconductor package using
the same
---------------------------------------------------------------------------------------------
75 02/24/2000 Leadframe and heat sink attached semiconductor package using
the same
---------------------------------------------------------------------------------------------
76 02/24/2000 Method of forming silicide for semiconductor device
---------------------------------------------------------------------------------------------
77 03/07/2000 Exposed pad cavity BGA
---------------------------------------------------------------------------------------------
78 03/20/2000 Ultra low cost method for increasing mold cap thickness
---------------------------------------------------------------------------------------------
79 03/27/2000 A flip chip array package for image array sensors; using
optically transparent epoxy
---------------------------------------------------------------------------------------------
24
137
---------------------------------------------------------------------------------------------
80 03/27/2000 flip chip image sensor package fabrication method'
---------------------------------------------------------------------------------------------
81 03/27/2000 Copper strap design for low resistance path in an integrated
circuit package
---------------------------------------------------------------------------------------------
82 03/28/2000 Method of making a package containing stacked integrated
circuits
---------------------------------------------------------------------------------------------
83 03/30/2000 Snapable multi-package substrate and array
---------------------------------------------------------------------------------------------
84 03/30/2000 method for fabricating a snapable multi package array
substrate, snapable multi-package array and snapable electronic
components
---------------------------------------------------------------------------------------------
85 04/13/2000 Matrix Type Printed Circuit Board for Semiconductor Packages
---------------------------------------------------------------------------------------------
86 04/13/2000 Electromagnetic interference shield device and method
---------------------------------------------------------------------------------------------
87 04/18/2000 Electromagnetic interference shield device and method
---------------------------------------------------------------------------------------------
88 04/25/2000 Precision aligned and marked structure
---------------------------------------------------------------------------------------------
89 04/25/2000 Precision marking and singulation method
---------------------------------------------------------------------------------------------
90 04/27/2000 Moisture resistant integrated circuit chip package and method
---------------------------------------------------------------------------------------------
91 05/04/2000 MRT level 2 - non bussed, full body gold tape carrier
---------------------------------------------------------------------------------------------
92 05/05/2000 Semiconductor Package and Method for Fabricating the Same
---------------------------------------------------------------------------------------------
93 05/05/2000 Long Wire IC Package
---------------------------------------------------------------------------------------------
94 05/05/2000 Long Wire IC Package fabrication method
---------------------------------------------------------------------------------------------
95 05/08/2000 Stackable package for integrated circuit having a cavity and lid
---------------------------------------------------------------------------------------------
96 05/08/2000 Ball grid array package w/stacked semiconductor dies "flip chip
stacked die in superBGA"
---------------------------------------------------------------------------------------------
97 05/08/2000 Stackable package with heat sink
---------------------------------------------------------------------------------------------
Apparatus for mounting an electronic device to a substrate
98 05/11/2000 without soldering
---------------------------------------------------------------------------------------------
99 05/11/2000 Flip chip mountable on substrate without underfill
---------------------------------------------------------------------------------------------
100 05/19/2000 Semiconductor Package and Method for Fabricating the Same
---------------------------------------------------------------------------------------------
101 05/19/2000 Semiconductor package and method for manufacturing the same
---------------------------------------------------------------------------------------------
102 05/22/2000 Image sensor package having sealed cavity over active area
---------------------------------------------------------------------------------------------
103 05/22/2000 Method of forming an image sensor package having sealed cavity
over active area
---------------------------------------------------------------------------------------------
104 05/30/2000 Multi-stacked memory package
---------------------------------------------------------------------------------------------
105 05/31/2000 Reverse contrast marking for plastic packages
---------------------------------------------------------------------------------------------
106 05/31/2000 Reverse contrast marking method
---------------------------------------------------------------------------------------------
107 06/01/2000 Reinforcing solder connections of electronic devices
---------------------------------------------------------------------------------------------
108 06/01/2000 Packaging high power integrated circuit devices
---------------------------------------------------------------------------------------------
109 06/02/2000 RF shielded device
---------------------------------------------------------------------------------------------
110 06/02/2000 Semiconductor package with spacer strips
---------------------------------------------------------------------------------------------
111 06/07/2000 A Circuit Board for Semiconductor Package
---------------------------------------------------------------------------------------------
112 06/13/2000 Electronic Device package and leadframe
---------------------------------------------------------------------------------------------
113 06/16/2000 A package for an integrated circuit device and passive devices
including electromagnetic interference protection
---------------------------------------------------------------------------------------------
114 06/22/2000 Overhead material transport system for IC assembly and test
manufacturing
---------------------------------------------------------------------------------------------
115 06/23/2000 Hoist assembly
---------------------------------------------------------------------------------------------
116 06/23/2000 Gripper assembly
---------------------------------------------------------------------------------------------
117 06/23/2000 Material transport method
---------------------------------------------------------------------------------------------
118 06/29/2000 Improved IC package with a flip chip integrated circuit and
passive chip components on a laminate substrate that is over
molded
---------------------------------------------------------------------------------------------
25
138
---------------------------------------------------------------------------------------------
119 06/29/2000 Flip chip integrated circuit and passive chip component package
fabrication method
---------------------------------------------------------------------------------------------
120 06/30/00 Leadframe Having a Mold Inflow Groove and Method
---------------------------------------------------------------------------------------------
121 06/30/2000 Flip chip micromachine package
---------------------------------------------------------------------------------------------
122 06/30/2000 Flip-chip micromachine package fabrication method
---------------------------------------------------------------------------------------------
123 06/30/2000 Making chip sized optical semiconductor packages
---------------------------------------------------------------------------------------------
124 06/30/2000 Stackable package for integrated circuit having chips for
fastening package and tool for opening clips
---------------------------------------------------------------------------------------------
125 06/30/2000 Low profile exposed die package for semiconductor chip
---------------------------------------------------------------------------------------------
126 07/05/2000 A wafer scale image sensors preparation using window on die
pre-packaging
---------------------------------------------------------------------------------------------
127 07/05/2000 Wafer scale image sensor package fabrication method
---------------------------------------------------------------------------------------------
128 07/13/2000 Plastic integrated circuit package and method and leadframe for
making the package
---------------------------------------------------------------------------------------------
129 07/14/2000 Microcircuit die-sawing protector and method
---------------------------------------------------------------------------------------------
130 07/17/2000 Semiconductor packaging method for multiple chip stacking
---------------------------------------------------------------------------------------------
131 07/20/2000 Thin semiconductor package with stacked die
---------------------------------------------------------------------------------------------
132 08/02/2000 Semiconductor chip having a radio frequency identification
transceiver
---------------------------------------------------------------------------------------------
133 08/11/2000 Making Semiconductor Packages with Stacked Dies and Interleaved
Heat Spreader
---------------------------------------------------------------------------------------------
134 08/23/2000 Circuit Board for Semiconductor Package
---------------------------------------------------------------------------------------------
135 08/24/2000 Semiconductor Package and Method for Fabricating
---------------------------------------------------------------------------------------------
136 08/24/2000 Semiconductor Package
---------------------------------------------------------------------------------------------
137 09/05/2000 Semiconductor Device Package Having Vias Extending Through the
Semiconductor Device
---------------------------------------------------------------------------------------------
138 09/05/2000 Making Chip Size Semiconductor Packages with Stacked Dies
---------------------------------------------------------------------------------------------
139 09/06/2000 A Novel Approach to Manufacturing Memory Cards
---------------------------------------------------------------------------------------------
140 09/08/2000 Multiple Lead Frame Package with Enhanced Die-to-Die
Interconnect Routing Using Internal Lead Trace
---------------------------------------------------------------------------------------------
141 09/26/2000 Micro-Machine Stacked Package
---------------------------------------------------------------------------------------------
142 09/26/2000 Micro-Machine Stacked Wirebonded Package Method
---------------------------------------------------------------------------------------------
143 09/26/2000 Micro-Machine Stacked Flip Chip Package
---------------------------------------------------------------------------------------------
144 09/26/2000 Micro-Machine Stacked Flip Chip Package Fabrication Method
---------------------------------------------------------------------------------------------
145 10/10/2000 Cond Tapered Optical Fiber
---------------------------------------------------------------------------------------------
146 10/13/2000 Semiconductor Package Having Improved Adhesiveness and Ground
Bonding
---------------------------------------------------------------------------------------------
147 10/13/2000 Improved Thin and Heat Radiant Semiconductor Package and Method
for Manufacturing
---------------------------------------------------------------------------------------------
148 10/13/2000 Leadframe for Semiconductor Package and Mold for Molding the
Same
---------------------------------------------------------------------------------------------
149 10/13/2000 Semiconductor Package Having Increased Solder Joint Strength
---------------------------------------------------------------------------------------------
150 10/13/2000 Clamp and Heat Block for Wire Bonding a Semiconductor Package
Assembly
---------------------------------------------------------------------------------------------
151 10/13/2000 Method for Making a Semiconductor Package Having Iproved Defect
Testing and Increased Production Yield
---------------------------------------------------------------------------------------------
152 10/13/2000 Near Chip Size Semiconductor Package
---------------------------------------------------------------------------------------------
26
139
---------------------------------------------------------------------------------------------
153 10/13/2000 Semiconductor Package
---------------------------------------------------------------------------------------------
154 10/13/2000 Stackable Semiconductor Package and Method for Manufacturing
the Same
---------------------------------------------------------------------------------------------
155 10/13/2000 Stackable Semiconductor Package and Method for Manufacturing
the Same
---------------------------------------------------------------------------------------------
156 10/13/2000 End Grid Array Semiconductor Package
---------------------------------------------------------------------------------------------
157 10/13/2000 Method of and Apparatus for Manufacturing Semiconductor Packages
---------------------------------------------------------------------------------------------
158 10/13/2000 Leadframe and Semiconductor package with Improved solder Joint
Strength
---------------------------------------------------------------------------------------------
159 10/13/2000 Semiconductor Package Having Reduced Thickness
---------------------------------------------------------------------------------------------
160 10/13/2000 Semiconductor Package Leadframe Assembly and Method of
Manufacture
---------------------------------------------------------------------------------------------
161 10/13/2000 Improved Method for Making Semiconductor Packages
---------------------------------------------------------------------------------------------
162 10/20/2000 Method of Fabricating Semiconductor Device
---------------------------------------------------------------------------------------------
163 10/24/2000 Micro-Machine Package
---------------------------------------------------------------------------------------------
164 10/24/2000 Molded Image Sensor Package Having Lens Holder
---------------------------------------------------------------------------------------------
165 10/31/2000 Plastic Integrated Circuit Device Package and Method for Making
the Package
---------------------------------------------------------------------------------------------
166 11/11/2000 Method of Forming Contact Portion of Semiconductor Element
---------------------------------------------------------------------------------------------
167 11/13/2000 A Wafer Scale Package for Image Sensors Using Glass on Die
Pre-Packaging Preparation
---------------------------------------------------------------------------------------------
168 11/13/2000 Chip Size Image Sensor Wirebond Package Fabrication Method
---------------------------------------------------------------------------------------------
169 11/13/2000 Chip Size Image Sensor Bumped Package
---------------------------------------------------------------------------------------------
170 11/13/2000 Chip Size Image Sensor Bumped Package Fabrication Method
---------------------------------------------------------------------------------------------
171 11/15/2000 Flip Chip on Glass Image Sensor Package
---------------------------------------------------------------------------------------------
172 11/15/2000 Flip Chip on Glass Image Sensor Package and Method
---------------------------------------------------------------------------------------------
173 11/16/2000 Angulated Semiconductor Packages
---------------------------------------------------------------------------------------------
174 12/06/2000 Semiconductor Package with Stacked Dies and Wire Bond
Reinforcement
---------------------------------------------------------------------------------------------
175 12/20/2000 Wire Bonding Method and Semiconductor Package Manufactured
Using the Same
---------------------------------------------------------------------------------------------
176 12/28/2000 Integrated Circuit Package and Method of Making
---------------------------------------------------------------------------------------------
177 12/28/2000 Method of Making and Stacking a Semiconductor Package
---------------------------------------------------------------------------------------------
178 12/29/2000 Tool and Method for Forming an Integrated Optical Circuit
---------------------------------------------------------------------------------------------
179 12/29/2000 Optical Fiber Having Tapered End and Optical Connector with
Reciprocal Opening
---------------------------------------------------------------------------------------------
180 01/03/2001 A Bond Wire Pressure Sensor Die Package
---------------------------------------------------------------------------------------------
181 01/03/2001 Method for Forming a bond Wire Pressure Sensor Package
---------------------------------------------------------------------------------------------
182 01/03/2001 Flip Chip Pressure Sensor Package
---------------------------------------------------------------------------------------------
183 01/03/2001 Method for Forming a Flip Chip Pressure Sensor Die Package
---------------------------------------------------------------------------------------------
184 01/10/2001 Pattern Recognition Method
---------------------------------------------------------------------------------------------
185 01/10/2001 Clamp for Pattern Recognition
---------------------------------------------------------------------------------------------
186 01/16/2001 Structure for Fabricating a Special-Purpose Die Using a
Polymerizable Tape
---------------------------------------------------------------------------------------------
187 01/16/2001 Method for Fabricating a Special-Purpose Die Using a
Polymerizable Tape
---------------------------------------------------------------------------------------------
188 01/16/2001 Optical Module with Lens Internal Holder
---------------------------------------------------------------------------------------------
27
140
---------------------------------------------------------------------------------------------
189 01/16/2001 Optical Module with Lens Internal Holder Fabrication Method
---------------------------------------------------------------------------------------------
190 01/26/2001 Semiconductor Module Package Substrate
---------------------------------------------------------------------------------------------
191 01/26/2001 Semiconductor Module Package Substrate Fabrication Method
---------------------------------------------------------------------------------------------
192 01/30/2001 Semiconductor Package Having Semiconductor Chip Within Central
Aperture of Substrate
---------------------------------------------------------------------------------------------
193 02/14/2001 Printed Circuit Board for Semiconductor Package and Method for
Manufacturing the Same
---------------------------------------------------------------------------------------------
194 03/01/2001 Structure Including Electronic Components Singulated Using
Laser Cutting
---------------------------------------------------------------------------------------------
195 03/01/2001 Method of Singulation Using Laser Cutting
---------------------------------------------------------------------------------------------
28
141
SCHEDULE 4.1(y) TO THE
CREDIT AGREEMENT
LIENS
STATE OF ARIZONA
--------------------------------------------------------------------------------------------------
SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
--------------------------------------------------------------------------------------------------
Korea Exchange 0964423-0 Original Filing: Fixtures and improvements to real
Bank as Amended April property; water rights appurtenant
18, 1997 to the
Premises; personal
property, income,
Amendment 1 equipment, etc.;
June 27, 1997 Computer Software and Data;
Intellectual Property; in
connection with the premises and
Amendment 2 blanket with respect to the
December 31, 1998 Project.
--------------------------------------------------------------------------------------------------
Societe Generale, 1115092 April 26, 2000 Blanket Lien
as Collateral
Agent
--------------------------------------------------------------------------------------------------
CIT Technologies 1159452 January 25, 2001 Signal Generator (Equipment)
Corporation
--------------------------------------------------------------------------------------------------
STATE OF CALIFORNIA
--------------------------------------------------------------------------------------------------
SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
--------------------------------------------------------------------------------------------------
LTX Corporation 9816760808 June 12, 1998 Equipment Lease.
--------------------------------------------------------------------------------------------------
Societe Generale, 200012560227 April 28, 2000 Blanket Lien
as Collateral
Agent
--------------------------------------------------------------------------------------------------
Newcourt 200023060142 August 11, 2000 Equipment
Financial USA, Inc
--------------------------------------------------------------------------------------------------
CIT Technologies 200105461010 February 20, 2001 Equipment
Corporation DBA
CIT Systems Note: UCC Statement not included
Leasing
--------------------------------------------------------------------------------------------------
142
STATE OF DELAWARE
--------------------------------------------------------------------------------------------------
SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
--------------------------------------------------------------------------------------------------
Societe Generale, as 20000025421 April 26, 2000 Blanket Lien
collateral agent
--------------------------------------------------------------------------------------------------
STATE OF IDAHO
--------------------------------------------------------------------------------------------------
SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
--------------------------------------------------------------------------------------------------
Societe Generale, as B868066 April 27, 2000 Blanket Lien
collateral agent
--------------------------------------------------------------------------------------------------
STATE OF PENNSYLVANIA
--------------------------------------------------------------------------------------------------
SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
--------------------------------------------------------------------------------------------------
Korea Exchange 09400194 December 7, 1978 Accounts
Bank as continued and Receivable and
Amended. Inventory contract
rights,
Instruments,
documents, chattel
paper, general
intangibles and
other forms of
obligations owing to the debtor
and insurance policies thereon,
etc.
--------------------------------------------------------------------------------------------------
AT&T Systems 29421557 September 28, 1998 Equipment Lease
Leasing
Corporation
--------------------------------------------------------------------------------------------------
Newcourt 30021609 March 17, 1999 Equipment Lease
Technologies
Corporation
--------------------------------------------------------------------------------------------------
Newcourt 30690683 September 2, 1999 Equipment Lease
Technologies
Corporation
--------------------------------------------------------------------------------------------------
Newcourt 31381387 March 14, 2000 Equipment Lease
Technologies
Corporation
--------------------------------------------------------------------------------------------------
Newcourt 31381391 March 14, 2000 Equipment Lease
Technologies
Corporation
--------------------------------------------------------------------------------------------------
Societe Generale, 31551067 April 26, 2000 Blanket Lien
as collateral
agent
--------------------------------------------------------------------------------------------------
30
143
--------------------------------------------------------------------------------------------------
Newcourt 31560479 April 27, 2000 Equipment
Technologies
Corporation
--------------------------------------------------------------------------------------------------
Newcourt 31570101 May 01, 2000 Equipment
Technologies
Corporation
--------------------------------------------------------------------------------------------------
CIT Technologies 31810529 July 3, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
CIT Technologies 31810531 July 3, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
CIT Technologies 31951006 August 11, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
CIT Technologies 33010060 August 29, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
CIT Technologies 33091443 September 25, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
CIT Technologies 33091447 September 25, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
CIT Technologies 33091454 September 25, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
Credence Capital 33281645 November 13, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Credence Capital 33281650 November 13, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Credence Capital 33281652 November 13, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
31
144
--------------------------------------------------------------------------------------------------
Credence Capital 33281654 November 13, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Credence Capital 33281656 November 13, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Credence Capital 33281658 November 13, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Credence Capital 33281660 November 13, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Credence Capital 33281662 November 13, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Credence Capital 33281664 November 13, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Credence Capital 33281666 November 13, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Credence Capital 33281668 November 13, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Credence Capital 33281670 November 13, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
32
145
--------------------------------------------------------------------------------------------------
Credence Capital 33320796 November 21, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Credence Capital 33320798 November 21, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Credence Capital 33330573 November 27, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
Credence Capital 33330577 November 27, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
Credence Capital 33330581 November 27, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
Credence Capital 33330587 November 27, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
Credence Capital 33330591 November 27, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
Credence Capital 33330595 November 27, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
Credence Capital 33330599 November 27, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
Credence Capital 33330603 November 27, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
Credence Capital 33330607 November 27, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
Credence Capital 33330611 November 27, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
Credence Capital 33330615 November 27, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
Credence Capital 333340494 November 29, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
33
146
--------------------------------------------------------------------------------------------------
Credence Capital 333340537 November 29, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
Credence Capital 33440792 December 28, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Credence Capital 33440794 December 28, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Credence Capital 33440796 December 28, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Credence Capital 33440798 December 28, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Credence Capital 33440802 December 28, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Associates Original file
Leasing Inc. number August 29, 2000 Equipment
33010060
* Assignment Assignment Date:
33511593 January 29, 2001
--------------------------------------------------------------------------------------------------
Orix USA Original file number November 13, 2000 All right, title and interest of
33281654 Amkor Technology, Inc. in the sub
*Assignment Assignment Date: leases between Amkor Technology
33560046 January 29, 2001 Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Orix USA Original file number November 13, 2000 All right, title and interest of
33281656 Amkor Technology, Inc. in the sub
*Assignment Assignment Date: leases between Amkor Technology
33560048 January 29, 2001 Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
34
147
--------------------------------------------------------------------------------------------------
Orix USA Original file number November 13, 2000 All right, title and interest of
33281658 Amkor Technology, Inc. in the sub
*Assignment Assignment Date: leases between Amkor Technology
33560055 January 29, 2001 Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Orix USA Original file number November 13, 2000 All right, title and interest of
33281660 Amkor Technology, Inc. in the sub
*Assignment Assignment Date: leases between Amkor Technology
33560051 January 29, 2001 Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Orix USA Original file number November 13, 2000 All right, title and interest of
33281662 Amkor Technology, Inc. in the sub
*Assignment Assignment Date: leases between Amkor Technology
33560049 January 29, 2001 Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Orix USA Original file number November 13, 2000 All right, title and interest of
33281664 Amkor Technology, Inc. in the sub
*Assignment Assignment Date: leases between Amkor Technology
33560053 January 29, 2001 Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Orix USA Original file number November 13, 2000 All right, title and interest of
33281666 Amkor Technology, Inc. in the sub
*Assignment Assignment Date: leases between Amkor Technology
33560057 January 29, 2001 Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Orix USA Original file number November 13, 2000 All right, title and interest of
33281668 Amkor Technology, Inc. in the sub
*Assignment Assignment Date: leases between Amkor Technology
335560061 January 29, 2001 Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Orix USA Original file number November 13, 2000 All right, title and interest of
33281670 Amkor Technology, Inc. in the sub
*Assignment Assignment Date: leases between Amkor Technology
33560059 January 29, 2001 Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
35
148
--------------------------------------------------------------------------------------------------
Orix USA Original file number November 27, 2000 Equipment
33330577
Assignment Date:
January 29, 2001
*Assignment
33560047
--------------------------------------------------------------------------------------------------
Orix USA Original file number November 27, 2000 Equipment
33330599
*Assignment Assignment Date:
33560062 January 29, 2001
--------------------------------------------------------------------------------------------------
Orix USA Original file number November 27, 2000 Equipment
33330603
*Assignment Assignment Date:
33560060 January 29, 2001
--------------------------------------------------------------------------------------------------
Orix USA Original file number November 27, 2000 Equipment
33330607
Assignment Date:
January 29, 2001
*Assignment
33560056
--------------------------------------------------------------------------------------------------
Orix USA Original file number November 27, 2000 Equipment
33330611
*Assignment Assignment Date:
33560058 January 29, 2001
--------------------------------------------------------------------------------------------------
Orix USA Original file number November 29, 2000 Equipment
33340494
*Assignment Assignment Date:
33560054 January 29, 2001
--------------------------------------------------------------------------------------------------
Orix USA Original file number November 29, 2000 Equipment
33330615
*Assignment Assignment Date:
33560052 January 29, 2001
--------------------------------------------------------------------------------------------------
36
149
--------------------------------------------------------------------------------------------------
Orix USA Original file number November 29, 2000 Equipment
33340537
*Assignment Assignment Date:
33560050 January 29, 2001
--------------------------------------------------------------------------------------------------
CIT Technologies 33500151 January 12, 2001 Equipment
Corporation
--------------------------------------------------------------------------------------------------
XXXXXXX COUNTY, PENNSYLVANIA PROTHONOTARY
--------------------------------------------------------------------------------------------------
SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
--------------------------------------------------------------------------------------------------
AT&T Systems ST98-2900 September 28, 1998 Equipment Lease
Leasing
Corporation
--------------------------------------------------------------------------------------------------
Newcourt ST99-0880 March 17, 1999 Equipment Lease
Technologies
Corporation
--------------------------------------------------------------------------------------------------
Newcourt ST99-2958 September 2, 1999 Equipment Lease
Technologies
Corporation
--------------------------------------------------------------------------------------------------
Newcourt ST00-0753 March 14, 2000 Equipment Lease
Technologies
Corporation
--------------------------------------------------------------------------------------------------
Newcourt ST00-0754 March 14, 2000 Equipment Lease
Technologies
Corporation
--------------------------------------------------------------------------------------------------
Societe Generale, ST00-1289 April 26, 2000 Blanket Lien
as collateral
agent
--------------------------------------------------------------------------------------------------
Newcourt ST00-1299 April 28, 2000 Equipment
Technologies
Corporation
--------------------------------------------------------------------------------------------------
Newcourt ST00-1300 April 28, 2000 Equipment
Technologies
Corporation
--------------------------------------------------------------------------------------------------
CIT Technologies ST00-2002 July 5, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
37
150
--------------------------------------------------------------------------------------------------
CIT Technologies ST00-2003 July 5, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
CIT Technologies ST00-2373 August 11, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
CIT Technologies ST00-2620 September 6, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
XXX Xxxxxxxxxxxx XX00-0000 September 25, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
XXX Xxxxxxxxxxxx XX00-0000 September 25, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
XXX Xxxxxxxxxxxx XX00-0000 September 25, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx XX00-0000 November 14, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx XX00-0000 November 14, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx XX00-0000 November 14, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx XX00-0000 November 14, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx XX00-0000 November 14, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx XX00-0000 November 14, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
38
151
--------------------------------------------------------------------------------------------------
Credence Capital ST00-3373 November 14, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx XX00-0000 November 14, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx XX00-0000 November 14, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx XX00-0000 November 14, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx XX00-0000 November 14, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx XX00-0000 November 14, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx XX00-0000 November 21, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx XX00-0000 November 21, 2000 All right, title and interest of
Corporation Amkor Technology, Inc. in the sub
leases between Amkor Technology
Inc. and Amkor Technology Korea
--------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx XX00-0000 November 30, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx XX00-0000 November 30, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
39
152
--------------------------------------------------------------------------------------------------
Credence Capital ST00-3504 November 30, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx XX00-0000 November 30, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx XX00-0000 November 30, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx XX00-0000 November 30, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx XX00-0000 November 30, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx XX00-0000 November 30, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx XX00-0000 November 30, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx XX00-0000 November 30, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx XX00-0000 November 30, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx XX00-0000 November 30, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx XX00-0000 November 30, 2000 Equipment
Corporation
--------------------------------------------------------------------------------------------------
STATE OF TEXAS
--------------------------------------------------------------------------------------------------
SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
--------------------------------------------------------------------------------------------------
Societe Generale,
as Collateral
Agent 0000482256 April 26, 2000 Blanket Lien
--------------------------------------------------------------------------------------------------
40
153
SCHEDULE 5.2(p) TO THE
CREDIT AGREEMENT
NEW SUBSIDIARIES
Amkor Technology Hong Kong, Ltd.
Amkor Assembly & Test Shanghai (China)
154
EXHIBIT A-1
FORM OF
TERM B NOTE
U.S. $ Dated:
---------------- ----------------
FOR VALUE RECEIVED, the undersigned, AMKOR TECHNOLOGY, INC., a
Delaware corporation (the "BORROWER"), HEREBY PROMISES TO PAY to the order of
[NAME OF LENDER] or its registered assigns (the "LENDER") for the account of its
Applicable Lending Office (as defined in the Credit Agreement referred to below)
the principal amount of the Term B Advance (as defined below) owing to the
Lender by the Borrower pursuant to the Amended and Restated Credit Agreement
dated as of March 30, 2001 (as amended, amended and restated, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT"; terms defined
therein, unless otherwise defined herein, being used herein as therein defined)
among the Borrower, the Initial Lenders and Initial Issuing Banks party thereto,
Xxxxxxx Xxxxx Barney Inc. ("SSBI") as Book Manager, Citicorp USA, Inc. ("CUSA"),
as Administrative Agent and as Collateral Agent, SSBI and Deutsche Banc Alex.
Xxxxx Inc. ("DBAB"), as Arrangers and DBAB, as Syndication Agent.
The Borrower promises to pay to [NAME OF LENDER] or its
registered assigns interest on the unpaid principal amount of the Term B Advance
from the date of such Term B Advance until such principal amount is paid in
full, at such interest rates, and payable at such times, as are specified in the
Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to CUSA, as Administrative Agent, at 0 Xxxxx Xxx, Xxxxx
000, Xxx Xxxxxx, Xxxxxxxx 00000, Attention: _______________ in same day funds.
The Term B Advance owing to the Lender by the Borrower and the maturity thereof,
and all payments made on account of principal thereof, shall be recorded by the
Lender and, prior to any transfer hereof, endorsed on the grid attached hereto,
which is part of this Promissory Note; provided, however, that the failure of
the Lender to make any such recordation or endorsement shall not affect the
Obligations of the Borrower under this Promissory Note.
This Promissory Note is one of the Notes referred to in, and is
entitled to the benefits of, the Credit Agreement. The Credit Agreement, among
other things, (i) provides for the making of a single advance (the "TERM B
ADVANCE") by the Lender to the Borrower in an amount not to exceed the U.S.
dollar amount first above mentioned, the indebtedness of the Borrower resulting
from such Term B Advance being evidenced by this Promissory Note, and (ii)
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions therein specified.
The obligations of the Borrower under this
155
Promissory Note and the other Loan Documents, and the obligations of the other
Loan Parties under the Loan Documents, are secured by the Collateral as provided
in the Loan Documents.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
AMKOR TECHNOLOGY, INC.
By
-------------------------------------
Title:
156
ADVANCES AND PAYMENTS OF PRINCIPAL
------------------------------------------------------------------------------------------
AMOUNT OF UNPAID
AMOUNT OF PRINCIPAL PAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
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==========================================================================================
157
EXHIBIT A-2
FORM OF
REVOLVING CREDIT NOTE
U.S. $ Dated:
---------------- ----------------
FOR VALUE RECEIVED, the undersigned, AMKOR TECHNOLOGY, INC., a
Delaware corporation (the "BORROWER"), HEREBY PROMISES TO PAY to the order of
[NAME OF LENDER] or its registered assigns (the "LENDER") for the account of its
Applicable Lending Office (as defined in the Credit Agreement referred to below)
the aggregate principal amount of the Revolving Credit Advances and the Letter
of Credit Advances (each as defined below) owing to the Lender by the Borrower
pursuant to the Amended and Restated Credit Agreement dated as of March 30, 2001
(as amended, amended and restated, supplemented or otherwise modified from time
to time, the "CREDIT AGREEMENT"; terms defined therein, unless otherwise defined
herein, being used herein as therein defined) among the Borrower, the Initial
Lenders and Initial Issuing Banks party thereto, Xxxxxxx Xxxxx Xxxxxx Inc.
("SSBI") as Book Manager, Citicorp USA, Inc. ("CUSA"), as Administrative Agent
and as Collateral Agent, SSBI and Deutsche Banc Alex. Xxxxx Inc. ("DBAB"), as
Arrangers and DBAB, as Syndication Agent.
The Borrower promises to pay to [NAME OF LENDER] or its
registered assigns interest on the unpaid principal amount of each Revolving
Credit Advance and Letter of Credit Advance from the date of such Revolving
Credit Advance or Letter of Credit Advance, as the case may be, until such
principal amount is paid in full, at such interest rates, and payable at such
times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to CUSA, as Administrative Agent, at 0 Xxxxx Xxx, Xxxxx
000, Xxx Xxxxxx, Xxxxxxxx 00000, Attention: _______________, in same day funds.
Each Revolving Credit Advance and Letter of Credit Advance owing to the Lender
by the Borrower and the maturity thereof, and all payments made on account of
principal thereof, shall be recorded by the Lender and, prior to any transfer
hereof, endorsed on the grid attached hereto, which is part of this Promissory
Note; provided, however, that the failure of the Lender to make any such
recordation or endorsement shall not affect the Obligations of the Borrower
under this Promissory Note.
This Promissory Note is one of the Notes referred to in, and is
entitled to the benefits of, the Credit Agreement. The Credit Agreement, among
other things, (i) provides for the making of advances (variously, the "REVOLVING
CREDIT ADVANCES" or the "LETTER OF CREDIT ADVANCES") by the Lender to or for the
benefit of the Borrower from time to time in an aggregate amount not to exceed
at any time outstanding the U.S. dollar amount first above mentioned, the
indebtedness of the Borrower resulting from each such Revolving Credit Advance
and Letter of Credit Advance being evidenced by this Promissory Note, and (ii)
contains provisions for
158
acceleration of the maturity hereof upon the happening of certain stated events
and also for prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified. The obligations of the
Borrower under this Promissory Note and the other Loan Documents, and the
obligations of the other Loan Parties under the Loan Documents, are secured by
the Collateral as provided in the Loan Documents.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
AMKOR TECHNOLOGY, INC.
By
----------------------------------------
Title:
159
ADVANCES AND PAYMENTS OF PRINCIPAL
------------------------------------------------------------------------------------------
AMOUNT OF UNPAID
AMOUNT OF PRINCIPAL PAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
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==========================================================================================
160
EXHIBIT B
FORM OF
NOTICE OF BORROWING
Citicorp USA, Inc.
as Administrative Agent
under the Credit Agreement
referred to below
0 Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxx 00000
[Date]
Attention: [ ]
Ladies and Gentlemen:
The undersigned, Amkor Technology, Inc. (the "BORROWER"), refers
to the Amended and Restated Credit Agreement dated as of March 30, 2001 (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the "CREDIT AGREEMENT"; terms defined therein, unless otherwise defined
herein, being used herein as therein defined) among the Borrower, the Initial
Lenders and Initial Issuing Banks party thereto, Xxxxxxx Xxxxx Barney Inc.
("SSBI") as Book Manager, Citicorp USA, Inc. ("CUSA"), as Administrative Agent
and as Collateral Agent, SSBI and Deutsche Banc Alex. Xxxxx Inc. ("DBAB"), as
Arrangers and DBAB, as Syndication Agent, and hereby gives you notice,
irrevocably, pursuant to Section 2.2 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing (the
"PROPOSED BORROWING") as required by Section 2.2(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is __________,
____.
(ii) The Facility under which the Proposed Borrowing is
requested is the _______________ Facility.
(iii) The Type of Advances comprising the Proposed Borrowing
is [Base Rate Advances] [Eurodollar Rate Advances].
(iv) The aggregate amount of the Proposed Borrowing is $______.
[(v) The initial Interest Period for each Eurodollar Rate Advance
made as part of the Proposed Borrowing is __________ month[s].]
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Borrowing:
161
(A) The representations and warranties contained in each Loan
Document are correct on and as of the date of the Proposed Borrowing, before and
after giving effect to the Proposed Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date, other than any such
representations or warranties that, by their terms, refer to a specific date
other than the date of the Proposed Borrowing, in which case, as of such
specific date.
(B) No Default has occurred and is continuing, or would result
from such Proposed Borrowing or from the application of the proceeds therefrom.
[(C) If the Proposed Borrowing consists of a Revolving Credit
Borrowing, the sum of the Loan Values of the Eligible Collateral exceeds the
aggregate principal amount of the Revolving Credit Advances plus Letter of
Credit Advances to be outstanding plus the Available Amount of all Letters of
Credit then outstanding after giving effect to the Proposed Borrowing.]
Delivery of an executed counterpart of this Notice of Borrowing
by telecopier shall be effective as delivery of an original executed counterpart
of this Notice of Borrowing.
Very truly yours,
AMKOR TECHNOLOGY, INC.
By
-------------------------------------
Title:
162
EXHIBIT C
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Credit Agreement
dated as of March 30, 2001 (as amended, amended and restated, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT"; terms defined
therein, unless otherwise defined herein, being used herein as therein defined)
among Amkor Technology, Inc. (the "BORROWER"), the Initial Lenders and Initial
Issuing Banks party thereto, Xxxxxxx Xxxxx Barney Inc. ("SSBI") as Book Manager,
Citicorp USA, Inc. ("CUSA"), as Administrative Agent and as Collateral Agent,
SSBI and Deutsche Banc Alex. Xxxxx Inc. ("DBAB"), as Arrangers and DBAB, as
Syndication Agent.
Each "Assignor" referred to on Schedule 1 hereto (each, an
"ASSIGNOR") and each "Assignee" referred to on Schedule 1 hereto (each, an
"ASSIGNEE") agrees severally with respect to all information relating to it and
its assignment hereunder and on Schedule 1 hereto as follows:
1. Such Assignor hereby sells and assigns, without recourse
except as to the representations and warranties made by it herein, to such
Assignee, and such Assignee hereby purchases and assumes from such Assignor, an
interest in and to such Assignor's rights and obligations under the Credit
Agreement as of the date hereof equal to the percentage interest specified on
Schedule 1 hereto of all outstanding rights and obligations under the Facilities
specified on Schedule 1 hereto. After giving effect to such sale and assignment,
such Assignee's Commitments and the amount of the Advances owing to such
Assignee will be as set forth on Schedule 1 hereto.
2. Such Assignor (i) represents and warrants that its name
set forth on Schedule 1 hereto is its legal name, that it is the legal and
beneficial owner of the interest or interests being assigned by it hereunder and
that such interest or interests are free and clear of any adverse claim; (ii)
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
any Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of, or the perfection or priority of any lien
or security interest created or purported to be created under or in connection
with, any Loan Document or any other instrument or document furnished pursuant
thereto; (iii) makes no representation or warranty and assumes no responsibility
with respect to the financial condition of any Loan Party or the performance or
observance by any Loan Party of any of its obligations under any Loan Document
or any other instrument or document furnished pursuant thereto; and (iv)
attaches the Note or Notes, if any, held by such Assignor and requests, to the
extent requested of it by such Assignee, that the Administrative Agent exchange
such Note or Notes for a new Note or Notes payable to the order of such Assignee
in an amount equal to the Commitments assumed by such Assignee pursuant hereto
or new Notes payable to the order of such Assignee in an amount equal to the
Commitments assumed by such Assignee pursuant hereto and such Assignor in an
amount equal to the Commitments retained by such Assignor under the Credit
Agreement, respectively, as specified on Schedule 1 hereto.
3. Such Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.1 thereof and
163
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment and Acceptance;
(ii) agrees that it will, independently and without reliance upon any Agent, any
Assignor or any other Lender Party and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit Agreement; (iii)
represents and warrants that its name set forth on Schedule 1 hereto is its
legal name; (iv) confirms that it is an Eligible Assignee; (v) appoints and
authorizes each Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Loan Documents as are delegated to such
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; (vi) agrees that it will perform in accordance
with their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Lender Party; and (vii)
attaches any U.S. Internal Revenue Service forms required under Section 2.12 of
the Credit Agreement.
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Administrative Agent for acceptance and recording by
the Administrative Agent. The effective date for this Assignment and Acceptance
(the "EFFECTIVE DATE") shall be the date of acceptance hereof by the
Administrative Agent, unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Administrative
Agent, as of the Effective Date, (i) such Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Lender Party thereunder and (ii) such
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement (other than its rights and obligations under the Loan Documents that
are specified under the terms of such Loan Documents to survive the payment in
full of the Obligations of the Loan Parties under the Loan Documents to the
extent any claim thereunder relates to an event arising prior to the Effective
Date of this Assignment and Acceptance) and, if this Assignment and Acceptance
covers all of the remaining portion of the rights and obligations of such
Assignor under the Credit Agreement, such Assignor shall cease to be a party
thereto.
6. Upon such acceptance and recording by the Administrative
Agent, from and after the Effective Date, the Administrative Agent shall make
all payments under the Credit Agreement and the Notes, if any, in respect of the
interest assigned hereby (including, without limitation, all payments of
principal, interest and commitment fees with respect thereto) to such Assignee.
Such Assignor and such Assignee shall make all appropriate adjustments in
payments under the Credit Agreement and the Notes for periods prior to the
Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of an original executed counterpart of
this Assignment and Acceptance.
164
IN WITNESS WHEREOF, each Assignor and each Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
165
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
==========================================================================================
ASSIGNORS:
------------------------------------------------------------------------------------------
Term B Facility
------------------------------------------------------------------------------------------
Percentage interest assigned % % % % %
------------------------------------------------------------------------------------------
Term B Commitment assigned $ $ $ $ $
------------------------------------------------------------------------------------------
Outstanding principal amount of $ $ $ $ $
Term B Advance assigned
------------------------------------------------------------------------------------------
Principal amount of Term B Note $ $ $ $ $
payable to ASSIGNOR
------------------------------------------------------------------------------------------
Revolving Credit Facility
------------------------------------------------------------------------------------------
Percentage interest assigned % % % %/\ %
------------------------------------------------------------------------------------------
Revolving Credit Commitment assigned $ $ $ $ $
------------------------------------------------------------------------------------------
Aggregate outstanding principal amount of $ $ $ $ $
Revolving Credit Advances assigned
------------------------------------------------------------------------------------------
Principal amount of Revolving Credit Note $ $ $ $ $
payable to ASSIGNOR
------------------------------------------------------------------------------------------
Letter of Credit Facility
------------------------------------------------------------------------------------------
Letter of Credit Commitment assigned $ $ $ $ $
------------------------------------------------------------------------------------------
Letter of Credit Commitment retained $ $ $ $ $
------------------------------------------------------------------------------------------
ASSIGNEES:
------------------------------------------------------------------------------------------
Term B Facility
------------------------------------------------------------------------------------------
Percentage interest assumed % % % % %
------------------------------------------------------------------------------------------
Term B Commitment assumed $ $ $ $ $
------------------------------------------------------------------------------------------
Outstanding principal amount of $ $ $ $ $
Term B Advance assumed
------------------------------------------------------------------------------------------
166
------------------------------------------------------------------------------------------
Principal amount of Term B Note $ $ $ $ $
payable to ASSIGNEE
------------------------------------------------------------------------------------------
Revolving Credit Facility
------------------------------------------------------------------------------------------
Percentage interest assumed % % % % %
------------------------------------------------------------------------------------------
Revolving Credit Commitment assumed $ $ $ $ $
------------------------------------------------------------------------------------------
Aggregate outstanding principal amount of $ $ $ $ $
Revolving Credit Advances assumed
------------------------------------------------------------------------------------------
Principal amount of Revolving Credit Note $ $ $ $ $
payable to ASSIGNEE
------------------------------------------------------------------------------------------
Letter of Credit Facility
------------------------------------------------------------------------------------------
Letter of Credit Commitment assumed $ $ $ $ $
==========================================================================================
167
Effective Date (if other than date of acceptance by Administrative Agent):
--------------- ----, ------.
ASSIGNORS
, as Assignor
----------------------
[Type or print legal name of Assignor]
By
------------------------------------------
Title:
Dated:
------------ ----, -----
, as Assignor
----------------------
[Type or print legal name of Assignor]
By
------------------------------------------
Title:
Dated:
------------ ----, -----
, as Assignor
----------------------
[Type or print legal name of Assignor]
By
------------------------------------------
Title:
Dated:
------------ ----, -----
, as Assignor
----------------------
[Type or print legal name of Assignor]
By
------------------------------------------
Title:
Dated:
------------ ----, -----
168
, as Assignor
----------------------
[Type or print legal name of Assignor]
By
------------------------------------------
Title:
Dated:
------------ ----, -----
ASSIGNEES
, as Assignee
----------------------
[Type or print legal name of Assignor]
By
------------------------------------------
Title:
Dated:
------------ ----, -----
Domestic Lending Office:
Eurodollar Lending Office:
, as Assignee
----------------------
[Type or print legal name of Assignor]
By
------------------------------------------
Title:
Dated:
------------ ----, -----
Domestic Lending Office:
Eurodollar Lending Office:
, as Assignee
----------------------
[Type or print legal name of Assignor]
169
By
------------------------------------------
Title:
Dated:
------------ ----, -----
Domestic Lending Office:
Eurodollar Lending Office:
, as Assignee
----------------------
[Type or print legal name of Assignee]
By
------------------------------------------
Title:
Dated:
------------ ----, -----
Domestic Lending Office:
Eurodollar Lending Office:
, as Assignee
----------------------
[Type or print legal name of Assignor]
By
------------------------------------------
Title:
Dated:
----------- ----, -----
Domestic Lending Office:
Eurodollar Lending Office:
Accepted (1)[and Approved] this
-------------------------
(1) Required if the Assignee is an Eligible Assignee solely by reason of
clause (a)(iii) or (b) of the definition of "Eligible Assignee".
170
day of ,
--------------- -----
CITICORP USA, INC.,
as Administrative Agent
By
-----------------------------------------
Title:
(2)[Approved this day
-------------
of ,
------------ -----
AMKOR TECHNOLOGY, INC.,
By:
----------------------------------------
Title:]
-------------------------
(2) Required if the Assignee is an Eligible Assignee solely by reason of
clause (a)(iii) or (b) of the definition of "Eligible Assignee" unless a
Default has occurred and is continuing.
171
EXHIBIT D TO THE
CREDIT AGREEMENT
FORM OF
BORROWING BASE CERTIFICATE
To: Citicorp USA, Inc.
0 Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, XX 00000
Attn:
Fax:
Amkor Technology, Inc.
-----------------------
Date:
------------------
(1) Inventory Net Availability
[Total from Schedule I] $
-------
(2) Accounts Receivable Net Availability
[Total from Schedule II] $
-------
(3) Total Borrowing Base Availability
[1 plus 2] $
---- -------
(4) Revolving Credit Commitment $
-------
(5) The lesser of (3) and (4) $
-------
(6) Revolving Credit Advances Outstanding $
-------
(7) Aggregate Principal Amount of
Letter of Credit Advances Outstanding $
-------
(8) Total Available Amount of all
Letters of Credit Outstanding
a. Standby Letters of Credit $
-------
b. Trade Letters of Credit $
-------
c. Total Letters of Credit [(a) + (b)] $
-------
(9) Total Revolving Credit Availability
[(5) less (6) less (7) less (8)] $
---- ---- ---- -------
172
This report is submitted pursuant to the Amended and Restated
Credit Agreement dated as of March 30, 2001 (as amended, amended and restated,
supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT";
terms defined therein, unless otherwise defined herein, being used herein as
therein defined) among the Borrower, the Initial Lenders and Initial Issuing
Banks party thereto, Xxxxxxx Xxxxx Xxxxxx Inc. ("SSBI") as Book Manager,
Citicorp USA, Inc. ("CUSA"), as Administrative Agent and as Collateral Agent,
SSBI and Deutsche Banc Alex. Xxxxx Inc. ("DBAB"), as Arrangers and DBAB, as
Syndication Agent. All of the current accounts referred to in this report (the
"ACCOUNTS") have been assigned to the Collateral Agent and the Collateral Agent
has been granted a security interest in the Accounts pursuant to the Loan
Documents.
The undersigned hereby certifies that (i) the amounts and the
representations set forth above are true and correct in all material respects,
(ii) the calculations determined herein are determined in accordance with the
Credit Agreement and (iii) except as noted, none of the Accounts referred to in
this report falls within the ineligible or prohibited categories as noted in the
Credit Agreement. We further confirm the above mentioned assignment and grant of
security interest in the Accounts to the Collateral Agent.
AMKOR TECHNOLOGY, INC.
Date: By:
----------------------------- ---------------------------
Name:
Title:
173
SCHEDULE I
Eligible Inventory
(a) Gross Inventory $
--------
Less: Ineligible Inventory
----------------------------------------------------------------------------------------------------
(b) Inventory located on leaseholds as to which the lessor has not entered $
into a consent and agreement required by the Collateral Agent pursuant --------
to the Credit
Agreement
----------------------------------------------------------------------------------------------------
(c) Inventory that is obsolete, unusable or otherwise $
unavailable for sale --------
----------------------------------------------------------------------------------------------------
(d) Inventory with respect to which the representations and warranties set $
forth in Section 9 of the Security Agreement applicable to Inventory are --------
not true and correct in all material respects
----------------------------------------------------------------------------------------------------
(e) Inventory that fails to meet all standards imposed by any governmental $
agency, or department or division thereof, having regulatory authority --------
over such Inventory or its use or sale
----------------------------------------------------------------------------------------------------
(f) Inventory that is subject to any licensing, patent, royalty, trademark, $
trade name or copyright agreement with any third party from whom any --------
Domestic Loan Party has received notice of a dispute in respect of any
such agreement to the extent of such dispute
----------------------------------------------------------------------------------------------------
(g) Inventory that is not in the possession of or under $
the sole control of the Domestic Loan Parties --------
----------------------------------------------------------------------------------------------------
(h) Inventory consisting of work in progress $
--------
----------------------------------------------------------------------------------------------------
(i) Inventory in respect of which the Security Agreement, after giving $
effect to the related filings of financing statements that have then --------
been made, if any, does not or has ceased to create a valid and
perfected first priority lien or security interest in favor of the
Collateral Agent for the benefit of the Secured
Parties securing the Secured Obligations
----------------------------------------------------------------------------------------------------
(j) Other Ineligible Inventory $
--------
----------------------------------------------------------------------------------------------------
(k) Total Ineligible Inventory [(sum of (b) through (j)] $
--------
----------------------------------------------------------------------------------------------------
(l) Eligible Inventory [(a) less (k)] $
--------
====================================================================================================
Loan Value of Eligible Inventory
(Product of (1) and 50%) $
========
174
----------------------------------------------------------------------------------------------------
(j) Receivables arising out of sales to account debtors outside the United $
States unless such Receivables are (i) fully backed by an irrevocable --------
letter of credit on terms, and issued by a financial institution,
acceptable to the Administrative Agent and such irrevocable letter of
credit is in the possession of the Collateral Agent or the
Administrative Agent or (ii) owing from an account debtor that is a
foreign subsidiary or division of a Person organized and in good
standing under the laws of a jurisdiction within the United States
--------------------------------------------------------------------------------------------------
(k) Receivables arising out of sales on a guaranteed sale, $
sale-or-return, sale on approval or consignment basis --------
or subject to any right of return, set-off or
charge-back
--------------------------------------------------------------------------------------------------
(l) Receivables owing from an account debtor that is an agency, department $
or instrumentality of the United States or any State thereof unless the --------
Borrower shall have satisfied the requirements of the Assignment of
Claims Act of 1940, as amended, and any similar State legislation and
the Administrative Agent is satisfied as to the absence of set-offs,
counterclaims and other defenses on the part of such account debtor
--------------------------------------------------------------------------------------------------
(m) Receivables the full and timely payment of which the Administrative Agent $
in its reasonable judgment believes to be doubtful --------
--------------------------------------------------------------------------------------------------
(n) Receivables in respect of which the Security Agreement, after giving $
effect to the related filings of financing statements that have then --------
been made, if any, does not or has ceased to create a valid and
perfected first priority lien or security interest in favor of the
Collateral Agent for the benefit of the Secured Parties securing the
Secured Obligations
--------------------------------------------------------------------------------------------------
(o) Other Ineligible Receivables $
--------
--------------------------------------------------------------------------------------------------
(p) Total Ineligible Receivables [sum of (b) through (o)] $
--------
--------------------------------------------------------------------------------------------------
(q) Eligible Receivables [(a) less (p)] $
---- --------
--------------------------------------------------------------------------------------------------
Loan Value of Eligible Inventory
(product of (q) and 85%) $
========
