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LIMITED WAIVER OF LOAN AND SECURITY AGREEMENT

Waiver Agreement

LIMITED WAIVER OF LOAN AND SECURITY AGREEMENT | Document Parties: AMKOR TECHNOLOGY INC | Bank of America, N.A You are currently viewing:
This Waiver Agreement involves

AMKOR TECHNOLOGY INC | Bank of America, N.A

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Title: LIMITED WAIVER OF LOAN AND SECURITY AGREEMENT
Governing Law: Texas     Date: 9/29/2006
Industry: Semiconductors    

LIMITED WAIVER OF LOAN AND SECURITY AGREEMENT, Parties: amkor technology inc , bank of america  n.a
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Exhibit 10.1

LIMITED WAIVER OF LOAN AND SECURITY AGREEMENT

     THIS LIMITED WAIVER OF LOAN AND SECURITY AGREEMENT (this “ Agreement ”), dated as of September 25, 2006 (the “ Waiver Date ”), is among Amkor Technology, Inc. and its Subsidiaries party hereto, the Lenders party to the Loan and Security Agreement referred to below, and Bank of America, N.A., as administrative agent for the Lenders (the “ Agent ”).

RECITALS:

     WHEREAS, The Borrowers, the Lenders, and the Agent have entered into that certain Loan and Security Agreement, dated as of November 28, 2005 (as amended, the “ Loan and Security Agreement ”); and

     WHEREAS, the Borrower has advised the Lenders that a default may have occurred and exist under its Material Contracts as more fully set forth in the Consent Solicitation Statements, dated September 14, 2006 (as may be amended, supplemented or replaced, the “ Consent Solicitations ”), soliciting consents to certain “Proposed Waivers” from the holders of certain of Amkor’s senior notes, senior subordinated notes, convertible senior subordinated notes and convertible subordinated notes constituting Material Contracts as a result of Amkor’s failure to file with the Securities and Exchange Commission (the “ SEC ”) prior to the applicable deadline specified in the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and to deliver to the applicable trustee and the holders of such notes a copy of, any report or other information as it would be required to file with the SEC under Section 13(a) or 15(d) of the Exchange Act (including, without limitation, its quarterly report on Form 10-Q for the quarterly period ended June 30, 2006 (the “ Form 10-Q ”) and any related notices or reports (collectively, the “SEC Reports”); and

     WHEREAS, one of the representations of the Borrowers in Section 9 of the Loan and Security Agreement (specifically Section 9.1.18 thereof) is that no default exists under any Material Contract; and

     WHEREAS, Section 6.2 of the Loan and Security Agreement provides that it is a condition precedent (among others) to the funding of any Revolving Loans, the issuance of any Letters of Credit or grant of any other accommodation to or for the benefit of the Borrowers that all of the representations and warranties of each Obligor in the Loan Documents shall be true and correct on the date of, and upon the giving effect to, such funding, issuance or grant (the “ Condition Precedent ”); and

     WHEREAS, the Borrowers have requested that the Lenders agree to waive the Condition Precedent to permit current credit extensions under the Loan and Security Agreement to the limited extent specifically provided hereinbelow; and

     WHEREAS, subject to satisfaction of the conditions set forth herein, the Requisite Lenders are willing to waive to the limited extent set forth herein the Condition Precedent;

LIMITED WAIVER OF LOAN AND SECURITY AGREEMENT – Page 1

 


 

     NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

ARTICLE 1

Definitions

     Section 1.1 Definitions . Unless otherwise defined in this Agreement, capitalized terms used in this Agreement shall have the same meanings herein as set forth in the Loan and Security Agreement.

ARTICLE 2

Limited Waiver of Loan and Security Agreement

     Section 2.1 Waiver . The Lenders waive the Condition Precedent to the extent, and only to the extent, that such failure to meet all of the conditions precedent to current credit extensions required by the Loan and Security Agreement results solely from (i) the failure of Amkor to file with the SEC prior to the applicable deadline specified in the Exchange Act, and provide copies thereof to the holders of its debt securities (or their representative trustees), the SEC Reports on or before the “ Waiver Expiration Date ” (as such term is defined in the Consent Solicitations) (the “SEC Reporting Waiver”), and (ii) the non-reliance on any financial statements delivered to the Agent or the Lenders at any time prior to the Waiver Date by reason of the restatement of Borrowers’ financial statements due to certain accounting errors related to Amkor’s historical stock option grant practices (the “Restatement Waiver” and together with the SEC Reporting Waiver, the “ Limited Waiver ”).

     Section 2.2 Limitation of Waiver . The Limited Waiver granted in Section 2.1 of this Agreement shall be: (i) effective conditioned upon fulfillment of the conditions provided in Article 3 below; and (ii) limited strictly as written and shall not be deemed to constitute a waiver of, or any consent to noncompliance with, any term, condition or provision of the Loan and Security Agreement or any other Loan Document except as expressly set forth herein. Further, the SEC Reporting Waiver granted in Section 2.1 of this Agreement shall not constitute a waiver of and shall immediately terminate and expire on the Waiver Expiration Date or upon the occurrence of any Default or Event of Default. The Restatement Waiver shall remain in effect from the Waiver Date to and including the Termination Date. The Limited Waiver shall not constitute a waiver of any rights, remedies, powers or privileges of the Agent or any Lender arising as a result of any such Default or Event of Default. The Lenders hereby acknowledge that the failure of Amkor to file the Form 10-Q with the SEC prior to the applicable deadline specified in the Exchange Act does not constitute a Default.

LIMITED WAIVER OF LOAN AND SECURITY AGREEMENT — Page 2

 


 

ARTICLE 3

Conditions

     Section 3.1 Conditions Precedent . The effectiveness of this Agreement from the date hereof through October 10, 2006 is subject to the satisfaction of the following conditions precedent:

     (a) no Default or Event of Default shall be in existence as of the Waiver Date;

     (b) the Agent shall have received a fully executed copy of this Agreement from Borrowers and the Requisite Lenders;

     (c) Payment by the Borrowers to the Agent of all fees, costs, and expenses owed to and/or incurred by the Agent in connection with the Loan and Security Agreement or this Agreement; and

     (d) Payment by the Borrower to the Agent, for the account of each Lender, a fee in respect of the waiver granted and agreed to herein in the amount of 10 basis points of each Lender’s Revolving Commitment.

     Section 3.2 Conditions Subsequent . The co


 
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