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 ”).
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:
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.
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
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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