þ
|
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
|
|
For the Quarterly Period Ended March 31, 2007 | ||
or
|
||
o
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
|
|
For the transition period from to |
Delaware
|
23-1722724 | |
(State of incorporation) |
(I.R.S. Employer
Identification Number) |
1
Item 1.
Financial
Statements
For the Three Months Ended March 31,
2007
2006
(In thousands, except per share data)
$
650,988
$
645,089
503,650
490,352
147,338
154,737
62,667
60,204
9,625
9,430
1,000
72,292
70,634
75,046
84,103
35,160
41,157
1,563
1,788
(15
)
3,928
(471
)
(686
)
(465
)
36,022
45,937
39,024
38,166
4,107
3,612
34,917
34,554
(327
)
(115
)
$
34,590
$
34,439
$
0.19
$
0.19
$
0.18
$
0.19
178,513
176,801
206,540
190,764
2
Table of Contents
3
Table of Contents
For the Three Months Ended March 31,
2007
2006
(In thousands)
$
34,590
$
34,439
71,364
66,061
4,055
15,007
13,440
3,462
123,449
118,969
(51,386
)
(79,098
)
3,945
923
(1,177
)
(48,618
)
(78,175
)
35,221
63,092
(45,272
)
(52,628
)
(351
)
(485
)
(145,149
)
(32,742
)
12,524
832
(143,027
)
(21,931
)
640
805
(67,556
)
19,668
244,694
206,575
$
177,138
$
226,243
$
25,240
$
40,400
$
5,098
$
1,508
$
$
17,822
4
Table of Contents
1.
Interim
Financial Statements
5
Table of Contents
2.
Stock
Compensation Plans
6
Table of Contents
Three Months Ended
March 31,
March 31,
2007
2006
(In thousands)
$
329
$
281
472
814
$
801
$
1,095
1998 Director
1998 Stock
2003 Inducement
Option Plan
Plan
Plan
10
10
10
January 2008
January 2008
Board of Directors Discretion
141,666
7,320,367
368,600
For the Three
Months Ended
March 31,
2006
5.8
4.6
%
77
%
$
4.83
7
Table of Contents
Weighted Average
Weighted Average
Remaining
Aggregate
Number of
Exercise Price
Contractual Term
Intrinsic
Shares
per Share
(Years)
Value
15,334,089
$
10.47
(1,318,017
)
9.50
(600,277
)
12.70
13,415,795
10.47
5.56
$
32,641,306
11,549,651
11.22
5.12
$
20,212,957
13,298,228
10.51
5.54
$
31,858,320
For the Three
Months Ended
March 31,
2006
0.5
4.4
%
64
%
8
Table of Contents
3.
Comprehensive
Income
For the Three
Months Ended March 31,
2007
2006
(In thousands)
$
34,590
$
34,439
(712
)
(2,570
)
123
(841
)
2,301
$
33,160
$
34,170
March 31,
December 31,
2007
2006
(In thousands)
$
248
$
960
(11,712
)
(11,835
)
3,972
4,813
$
(7,492
)
$
(6,062
)
4.
Income
Taxes
9
Table of Contents
5.
Earnings
Per Share
For the Three
Months Ended
March 31,
2007
2006
(In thousands, except
per share data)
$
34,590
$
34,439
1,187
1,563
1,788
$
37,340
$
36,227
178,513
176,801
1,653
612
13,023
13,351
13,351
206,540
190,764
$
0.19
$
0.19
$
0.18
$
0.19
10
Table of Contents
For the Three Months Ended March 31,
2007
2006
(In thousands)
4,777
15,065
2,042
2,554
3,781
6,819
21,400
4,777
15,065
6.
Accounts
Receivable
March 31,
December 31,
2007
2006
(In thousands)
$
392,669
$
392,370
(9,842
)
(9,247
)
(1,433
)
(2,235
)
$
381,394
$
380,888
7.
Inventories
March 31,
December 31,
2007
2006
(In thousands)
$
109,327
$
126,492
35,599
34,676
2,909
3,010
$
147,835
$
164,178
11
Table of Contents
8.
Property,
Plant and Equipment
March 31,
December 31,
2007
2006
(In thousands)
$
110,309
$
110,730
19,945
19,945
790,857
790,847
2,082,132
2,057,939
143,078
141,621
18,002
8,617
3,164,323
3,129,699
(1,736,241
)
(1,686,096
)
$
1,428,082
$
1,443,603
For the Three Months
Ended
March 31,
2007
2006
(In thousands)
$
51,386
$
79,098
3,935
23,854
$
55,321
$
102,952
9.
Goodwill
and Other Intangibles Assets
(In thousands)
$
671,900
782
(337
)
$
672,345
12
Table of Contents
Accumulated
Gross
Amortization
Net
(In thousands)
$
74,860
$
(52,782
)
$
22,078
8,858
(4,025
)
4,833
$
83,718
$
(56,807
)
$
26,911
Accumulated
Gross
Amortization
Net
(In thousands)
$
74,468
$
(50,167
)
$
24,301
8,858
(3,465
)
5,393
$
83,326
$
(53,632
)
$
29,694
(In thousands)
$
7,058
9,252
4,494
2,540
860
10.
Investments
March 31,
December 31,
2007
2006
(In thousands)
$
5,975
$
6,643
31
31
6,006
6,674
1
$
6,006
$
6,675
13
Table of Contents
11.
Accrued
Expenses
March 31,
December 31,
2007
2006
(In thousands)
$
34,232
$
22,721
23,393
39,998
15,447
17,533
4,565
5,382
66,137
59,867
$
143,774
$
145,501
12.
Debt
March 31,
December 31,
2007
2006
(In thousands)
$
$
300,000
300,000
88,206
88,206
248,934
248,877
425,000
425,000
400,000
400,000
21,882
21,882
190,000
190,000
142,422
100,000
100,000
7,568
8,411
44,559
45,024
10,953
12,626
12,837
22,571
20
296
1,849,959
2,005,315
(120,681
)
(185,414
)
$
1,729,278
$
1,819,901
14
Table of Contents
15
Table of Contents
16
Table of Contents
17
Table of Contents
13.
Pension
and Severance Plans
For the Three Months Ended
March 31,
2007
2006
(In thousands)
$
1,505
$
1,157
861
684
(444
)
(390
)
18
17
18
18
107
$
2,065
$
1,486
18
Table of Contents
14.
Other
Non-Current Liabilities
March 31,
December 31,
2007
2006
(In thousands)
$
22,201
$
24,397
11,954
5,611
$
34,155
$
30,008
15.
Commitments
and Contingencies
19
Table of Contents
20
Table of Contents
21
Table of Contents
22
Table of Contents
16.
Related
Party Transactions
23
Table of Contents
17.
Business
Segments
24
Table of Contents
Packaging
Test
Other
Total
(In thousands)
$
578,725
$
72,503
$
(240
)
$
650,988
122,715
22,964
1,659
147,338
$
583,678
$
61,587
$
(176
)
$
645,089
137,213
17,690
(166
)
154,737
$
2,438,900
$
607,741
$
117,682
$
3,164,323
2,421,171
596,079
112,449
3,129,699
18.
Subsequent
Events
25
Table of Contents
Item 2.
Managements
Discussion and Analysis of Financial Condition and Results of
Operations
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
26
Table of Contents
For the Three Months Ended March 31,
2007
2006
100.0
%
100.0
%
22.6
%
24.0
%
11.5
%
13.0
%
6.0
%
5.9
%
5.3
%
5.3
%
27
Table of Contents
28
Table of Contents
29
Table of Contents
For the Three Months Ended March 31,
2007
2006
(In thousands)
$
123,449
$
118,969
(48,618
)
(78,175
)
(143,027
)
(21,931
)
30
Table of Contents
For the Three Months Ended March 31,
2007
2006
(In thousands)
$
123,449
$
118,969
(51,386
)
(79,098
)
$
72,063
$
39,871
For the Three Months Ended March 31,
2007
2006
(In thousands)
$
51,386
$
79,098
3,935
23,854
$
55,321
$
102,952
Total
2007 Remaining
2008
2009
2010
2011
Thereafter
(In thousands)
$
1,849,959
$
31,503
$
108,247
$
33,628
$
311,784
$
439,619
$
925,178
791,757
105,848
132,444
129,644
123,550
80,954
219,317
46,052
46,052
49,356
5,871
5,466
3,895
3,668
3,815
26,641
$
2,737,124
$
143,222
$
292,209
$
167,167
$
439,002
$
524,388
$
1,171,136
(1)
The decrease in our total debt from the Annual Report on
Form 10-K/A
as of December 31, 2006, is primarily driven by the
repayment of $142.4 million of our 5% convertible
notes at maturity. In addition, ATK entered
31
Table of Contents
into a $300 million,
7-year
secured credit facility with Woori Bank effective April 5,
2007. The loan is guaranteed on an unsecured basis by Amkor
Technology, Inc. The loan is secured by substantially all the
land, factories, and equipment located at our ATK facility. The
loan bears interest at Wooris base rate plus 50 basis
points (6.6% at inception of the loan, or approximately LIBOR
plus 125 basis points) and amortizes in 28 equal quarterly
payments through April 2014. The proceeds of the Woori loan ,
were used to refinance Amkors existing $300 million
second lien term loan due, October 2010, which bears interest at
a rate of LIBOR plus 450 basis points (9.86% at
March 31, 2007). This financing transaction, together with
payment of prepayment fees and accrued and unpaid interest,
fully discharged all of Amkors obligations under the
second lien term loan and fully discharged all subsidiary
guarantees and releases all the collateral securing the second
lien term loan. After taking into consideration the
$300 million in proceeds from the new ATK term loan and the
repayment of the second lien term loan, total future scheduled
principal payments on our debt as of March 31, 2007 would
be $63.6 million for the remainder of 2007,
$151.1 million in 2008, $76.5 million in 2009,
$54.6 million in 2010, $482.5 million in 2011, and
$1,021.7 million thereafter.
(2)
Scheduled interest payment obligations were calculated using
stated coupon rates for fixed rate debt and interest rates
applicable at March 31, 2007 for variable rate debt.
(3)
Includes $40.3 million of capital-related purchase
obligations.
Item 3.
Quantitative
and Qualitative Disclosures about Market Risk
32
Table of Contents
Chart of Foreign Currency Risk
Chinese
Japanese
Korean
Philippine
Singapore
Taiwanese
Renminbi
Yen
Won
Peso
Dollar
Dollar
(In thousands)
$
(1,340
)
$
1,374
$
(2,003
)
$
(3,059
)
$
(698
)
$
(11,751
)
(2,178
)
2,048
(4,750
)
(3,734
)
(992
)
(10,861
)
33
Table of Contents
2007
2008
2009
2010
2011
Thereafter
Total
Fair Value
(In thousands)
$
2,521
$
91,539
$
21,882
$
$
438,934
$
925,000
$
1,479,876
$
1,593,824
4.9
%
9.1
%
10.5
%
0
%
5.1
%
8.2
%
7.5
%
$
28,982
$
16,708
$
11,746
$
311,784
$
685
$
178
$
370,083
$
380,584
2.6
%
3.7
%
3.4
%
9.6
%
5.6
%
5.6
%
8.6
%
Item 4.
Controls
and Procedures
34
Table of Contents
We created and implemented formal, documented stock award grant
procedures and practices to ensure systematic approval and
execution of stock award grants and modifications and the proper
recording of such grants and modifications in our stock
administration records and financial statements;
We conducted additional training for personnel and directors in
areas associated with the stock award granting processes and
other compensation practices. We also conducted training related
to accounting for stock-based compensation; and
We improved the manner of documenting the actions of the
Compensation Committee and we are ensuring the timely reporting
of Compensation Committee actions to the Board of Directors.
35
Table of Contents
Item 1.
Legal
Proceedings
Item 1A.
Risk
Factors
36
Table of Contents
37
Table of Contents
Fluctuation in demand for semiconductors and conditions in the
semiconductor industry;
changes in our capacity utilization;
changes in average selling prices;
changes in the mix of semiconductor packages;
evolving package and test technology;
absence of backlog and the short-term nature of our
customers commitments and the impact of these factors on
the timing and volume of orders relative to our production
capacity;
changes in costs, availability and delivery times of raw
materials and components;
changes in labor costs to perform our services;
the timing of expenditures in anticipation of future orders;
changes in effective tax rates;
the availability and cost of financing;
intellectual property transactions and disputes;
high leverage and restrictive covenants;
warranty and product liability claims;
costs associated with litigation judgments and settlements;
international events or environmental or natural events, such as
earthquakes, that impact our operations;
difficulties integrating acquisitions; and
our ability to attract qualified employees to support our
geographic expansion.
loss of key personnel or the shortage of available skilled
workers;
rescheduling and cancellation of large orders; and
fluctuations in our manufacturing yields.
38
Table of Contents
39
Table of Contents
their desire to realize higher utilization of their existing
test and packaging capacity, especially during downturns in the
semiconductor industry;
their unwillingness to disclose proprietary technology;
their possession of more advanced packaging and test
technologies; and
the guaranteed availability of their own packaging and test
capacity.
40
Table of Contents
make it more difficult for us to satisfy our obligations with
respect to our indebtedness;
increase our vulnerability to general adverse economic and
industry conditions;
limit our ability to fund future working capital, capital
expenditures, research and development and other general
corporate requirements;
require us to dedicate a substantial portion of our cash flow
from operations to service payments on our debt;
limit our flexibility to react to changes in our business and
the industry in which we operate;
place us at a competitive disadvantage to any of our competitors
that have less debt; and
limit, along with the financial and other restrictive covenants
in our indebtedness, among other things, our ability to borrow
additional funds.
41
Table of Contents
regulatory limitations imposed by foreign governments;
42
Table of Contents
fluctuations in currency exchange rates;
political, military and terrorist risks;
disruptions or delays in shipments caused by customs brokers or
government agencies;
unexpected changes in regulatory requirements, tariffs, customs,
duties and other trade barriers;
difficulties in staffing and managing foreign operations; and
potentially adverse tax consequences resulting from changes in
tax laws.
we may face delays in the design and implementation of that
system;
the cost of the system may exceed our plans and expectations; and
such system may damage our ability to process transactions or
harm our control environment.
43
Table of Contents
44
Table of Contents
our future financial condition, results of operations and cash
flows;
general market conditions for financing activities by
semiconductor companies; and
economic, political and other global conditions.
45
Table of Contents
contaminants in the manufacturing environment;
human error;
equipment malfunction;
changing processes to address environmental requirements;
defective raw materials; or
defective plating services.
46
Table of Contents
47
Table of Contents
discontinue the use of certain processes;
cease to provide the services at issue;
pay substantial damages;
develop non-infringing technologies; or
acquire licenses to the technology we had allegedly infringed.
48
Table of Contents
49
Table of Contents
Item 6.
Exhibits
Exhibit
Description of
10
.1
Credit Facility Agreement, dated
March 30, 2007, between Woori Bank and Amkor Technology
Korea, Inc.
10
.2
Additional Agreement, dated
March 30, 2007, between Woori Bank and Amkor Technology
Korea, Inc.
10
.3
General Terms and Conditions for
Bank Credit Transactions, dated March 30, 2007, between
Woori Bank and Amkor Technology Korea, Inc.
10
.4
Kun-Mortgage Agreement, dated
March 30, 2007, between Woori Bank and Amkor Technology
Korea, Inc.
10
.5
Kun-Guarantee, dated
March 30, 2007, delivered by Amkor Technology, Inc. to
Woori Bank.
10
.6
Second Amendment to Loan and
Security Agreement, dated as of March 28, 2007, among Amkor
Technology, Inc. and its subsidiaries party thereto, the Lenders
party to the Loan and Security Agreement dated November 28,
2005 (as amended), and Bank of America, N.A. as administrative
agent for the Lenders.
12
.1
Computation of Ratio of Earnings
to Fixed Charges.
31
.1
Certification of James J. Kim,
Chief Executive Officer of Amkor Technology, Inc., pursuant to
Rule 13a 14(a) under the Securities Exchange
Act of 1934.
31
.2
Certification of Kenneth T. Joyce,
Chief Financial Officer of Amkor Technology, Inc., pursuant to
Rule 13a 14(a) under the Securities Exchange
Act of 1934.
32
Certification of Chief Executive
Officer and Chief Financial Officer pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002.
50
Table of Contents
By:
51
Table of Contents
Exhibit
Description of
10
.1
Credit Facility Agreement, dated
March 30, 2007, between Woori Bank and Amkor Technology
Korea, Inc.
10
.2
Additional Agreement, dated
March 30, 2007, between Woori Bank and Amkor Technology
Korea, Inc.
10
.3
General Terms and Conditions for
Bank Credit Transactions, dated March 30, 2007, between
Woori Bank and Amkor Technology Korea, Inc.
10
.4
Kun-Mortgage Agreement, dated
March 30, 2007, between Woori Bank and Amkor Technology
Korea, Inc.
10
.5
Kun-Guarantee, dated
March 30, 2007, delivered by Amkor Technology, Inc. to
Woori Bank.
10
.6
Second Amendment to Loan and
Security Agreement, dated as of March 28, 2007, among Amkor
Technology, Inc. and its subsidiaries party thereto, the Lenders
party to the Loan and Security Agreement dated November 28,
2005 (as amended), and Bank of America, N.A. as administrative
agent for the Lenders.
12
.1
Computation of Ratio of Earnings
to Fixed Charges.
31
.1
Certification of James J. Kim,
Chief Executive Officer of Amkor Technology, Inc., pursuant to
Rule 13a 14(a) under the Securities Exchange
Act of 1934.
31
.2
Certification of Kenneth T. Joyce,
Chief Financial Officer of Amkor Technology, Inc., pursuant to
Rule 13a 14(a) under the Securities Exchange
Act of 1934.
32
Certification of Chief Executive
Officer and Chief Financial Officer pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002.
Borrower: | Amkor Technology Korea, Inc. | |||||||
|
By: | /s/ Kyu-Hyun Kim | ((seal)) | |||||
|
||||||||
Title: | Representative Director |
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT Page 1
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT Page 2
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT Page 3
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT Page 4
BORROWER : | ||||||
|
||||||
AMKOR TECHNOLOGY, INC. | ||||||
|
||||||
|
By: | /s/ KENNETH T. JOYCE | ||||
|
||||||
Name: Kenneth T. Joyce | ||||||
Title: Chief Financial Officer |
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT Page 5
AGENT : | ||||||
|
||||||
BANK OF AMERICA, N.A. | ||||||
|
||||||
|
By: | /s/ JOY L. BARTHOLOMEW | ||||
|
||||||
Name: Joy L. Bartholomew | ||||||
Title: Senior Vice President |
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT Page 6
LENDERS : | ||||||
|
||||||
BANK OF AMERICA, N.A. | ||||||
|
||||||
|
By: | /s/ JOY L. BARTHOLOMEW | ||||
|
||||||
Name: Joy L. Bartholomew | ||||||
Title: Senior Vice President | ||||||
|
||||||
WACHOVIA CAPITAL FINANCE CORPORATION (WESTERN) | ||||||
|
||||||
|
By: | /s/ ROBIN L. VANMETER | ||||
|
||||||
Name: Robin L. VanMeter | ||||||
Title: Vice President | ||||||
|
||||||
TEXTRON FINANCIAL CORPORATION | ||||||
|
||||||
|
By: | /s/ ROBERT L. DYSART | ||||
|
||||||
Name: Robert L. Dysart | ||||||
Title: Senior Account Executive |
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT Page 7
To: Woori Bank
|
Date: March 30, 2007 |
Borrower: | Amkor Technology Korea, Inc. ((seal)) | |||||
Representative Director Kyu-Hyun Kim | ||||||
|
/s/ KYU-HYUN KIM | |||||
|
||||||
Address: | 280-8, Sungsoo-dong 2-ga, Sungdong-gu | |||||
Seoul |
Classification of Credit Facility (Credit Type) | Foreign Currency Loan | Transaction Category |
o
credit line
§
separate
credit |
||||||
|
|||||||||
Amount of Credit
Facility (Limit)
|
USD 300,000,000 | ||||||||
|
|||||||||
Drawdown Date
|
April 5, 2007 | Maturity Date | April 5, 2014 | ||||||
|
|||||||||
Interest Rate | [Intentionally deleted] | (base rate applicable to USD credit facility + 0.5%) | |||||||
|
|||||||||
Default Interest Rate (Article 3, Section 5 of the Bank Credit Transaction Basic Terms and Conditions is applicable) |
Less than 3 months: 17% p.a.
3 months or more: 19% p.a. |
||||||||
|
|||||||||
Calculation of | Calculated on a daily basis based on 365 days a year (provided |
(1) | As to any due but unpaid interest, installment payment of principal, and installment payment of principal and interest, a default interest thereof shall be paid immediately. | ||
(2) | If there is a failure to satisfy the debt on the maturity date or the loan becomes accelerated pursuant to Article 7 of General Terms and Conditions for Bank Credit Transactions, a default interest shall be paid immediately as to the outstanding credit facility amount. | ||
(3) | [intentionally deleted] |
(1) | [intentionally deleted] | ||
(2) | In case of any credit facility to be repaid in installments except for either loans based on regular installment savings ( jeokkeum in Korean) or grants, the Bank shall prepare and notify the obligors of a schedule for the repayment in installments of the fixed total debt amount. |
(1) | If the Borrower prepays the loan provided by the Bank prior to the agreed maturity date (including, if the maturity is extended, the maturity date as extended; hereinbelow the same), the Borrower shall pay the Bank the prepayment fees as set forth in Section 9(2) below. | ||
(2) | The prepayment fees shall be an amount equal to the Prepaid Amount multiplied by the applicable prepayment fee rate as set forth in Article 1, and the Prepaid Amount, etc. shall be calculated as follows: |
. | Prepaid Amount shall mean an amount of the loan prepaid prior to the agreed due date or, in case of a loan to be repaid in installments, an amount of the loan prepaid prior to the due date of any installment repayment. | ||
. | Remaining Period shall mean a period from the date of prepayment to the agreed due date or, in case of a loan to be repaid in installments, the Remaining Period shall be calculated with respect to each scheduled installment repayment, and, in case of prepayment of a loan in part, the prepayment shall be applied in the order of the installment payments of which the due date comes first. | ||
. | [intentionally deleted] | ||
. | [intentionally deleted] |
(3) | In any of the following cases, the prepayment fees shall be exempted: |
. | If the Remaining Period is less than 1 month; | ||
. | If the Bank collects the loan prior to the maturity date for the reason of acceleration or otherwise as set forth in the General Terms and Conditions for Bank Credit Transactions; | ||
. | If the Borrower is a company subject to workout or restructuring proceedings and the prepayment is made upon agreement with the Bank; |
. | If an outside source loan, however, excluding a credit line loan (including a passbook loan), consumer financing, and a loan subject to the limit of a maximum amount; | ||
. | If a floating P-Rate loan is prepaid within 1 month from the interest rate change date due to the increase of P-Rate; and | ||
. | If the amount of the credit facility does not exceed the amount of deposits in a savings account or a regular installment savings account with the Bank, a beneficiary certificate of the Bank or financial receivables that could be utilized as security. |
(1) | The Borrower shall be responsible for all stamp taxes relating to this Agreement. | ||
(2) | If the Bank pays on behalf of the Borrower any stamp tax payable by the Borrower under Section 10(1) above, the Borrower shall promptly repay the Bank such stamp tax amount pursuant to Article 4 of the Bank Credit Transaction Basic Terms and Conditions. |
(1) | The Borrower shall submit to the Bank the following materials which are requested to be periodically submitted pursuant to Sections 17 and 19 of General Terms and Conditions for Bank Credit Transactions, and, at the request of the Bank, submit any other materials necessary for the post-drawdown supervision of the credit facility: |
1. | Every quarter: a value added tax report, a total balance schedule, a table of status of liabilities, a list of buyers, and a table of estimated sales per goods, etc.; | ||
2. | Every half year: a semi-annual financial statement, a value added tax report, a total balance schedule, a table of status of liabilities, a list of buyers, and a table of estimated sales per goods, etc.; | ||
3. | Every year: an audit report prepared by a CPA (final financial statements), consolidated financial statements, corporate registry extracts, business registration certificate, a shareholder registry, articles of incorporation, a summary sheet of earned income taxes withheld, business plan, a projected financial statements (for 3 years), information on major business partners, copies of various permits, approvals and documents relating to certified technology (KS, ISO, patent, etc.), a confirmation letter on labor disputes, other operating manuals for goods, reference materials regarding the Borrowers industry, etc.; and | ||
4. | At any time: a total balance schedule, a table of status of liabilities, document confirming use of proceeds, etc. |
(2) | The Borrower shall, at the request of the Bank, submit to the Bank the following materials which the Bank, at the time of evaluating the credit standing of the Borrower, requests for the purpose of understanding the Borrowers status of foreign exchange risks and its management thereof: |
1. | Status of management system on FX risks and rules on management of FX risks; | ||
2. |
Status of procurement, and use/operation, of foreign currency funds; and
|
||
3. | Status of transactions of foreign-currency denominated derivatives. |
If there is any conflict
or discrepancy between the
Korean version of this
Agreement and the English
version of this Agreement,
the Korean version of this
Agreement shall prevail.
|
Borrower |
Amkor Technology Korea, Inc.,
Representative Director Kyu-Hyun Kim /s/ KYU-HYUN KIM ((seal)) 280-8, Sungsoo-dong 2-ga, Sungdong-gu, Seoul |
The Borrower has
received the Bank Credit
Transaction Basic Terms
and Conditions and a copy
of this Agreement, and
have been sufficient
explained of, and
understands, the material
contents thereof.
|
Borrower |
Amkor Technology Korea, Inc.,
Representative Director /s/ KYU-HYUN KIM ((seal)) 280-8, Sungsoo-dong 2-ga, Sungdong-gu, Seoul |
(1) | The General Terms and Conditions shall apply to all credit transactions arising between the Bank and the Obligor (the person owing obligations to the Bank including a borrower, a discount applicant and a payment guarantee applicant, hereinafter the same) including loans evidenced by promissory notes, discounting of bills of exchange or promissory notes, loans evidenced by deeds, overdrafts, payment guarantees and foreign exchange transactions. | |
(2) | In the event that the Bank has, through credit transactions with any third party, acquired bills (including checks, collectively, the Bills) drawn, endorsed, accepted or guaranteed by the Obligor, the Obligor shall be also bound by the General Terms and Conditions in the performance of the obligations evidenced by such Bills; provided, that Articles 2, 3, 5, 7, 9 and Article 12, Paragraph (1) and Article 15, Paragraph (1) shall not be applicable. | |
(3) | The General Terms and Conditions shall apply to all transactions and performance of obligations between the principal office and branches of the Bank and the principal office and branches of the Obligor to the extent that the transaction or the obligation falls within the scope of the above Paragraph (1) or (2). |
(1) | The rates, computation method or the time and manner of payment, respectively, of the |
1
interest, discount charge, guarantee fee or commission (hereinafter referred to as Interest, etc.) shall be determined by the Bank, to the extent permitted under applicable laws and regulations. | ||
(2) | The Obligor may select one of following in respect of rate of Interest, etc. in executing the transaction agreement. |
(3) | If the Obligor selects Paragraph (2) Item 1 and there is any significant change in circumstance due to sudden change in national economy and financial condition which could not be expected at the time of execution of the agreement, before the obligations are fully performed, the Bank may increase or decrease the rate by giving a notice to the Obligor separately. In this case, if the cause for change ceases to exist, the Bank shall immediately change such rate in order to conform to such circumstance. | |
(4) | If the Obligor selects Paragraph (2) Item 2, the increase or decrease of rate of Interest, etc. by the Bank shall be made within reasonable extent in accordance with the sound banking customary practice. | |
(5) | Any amount not paid by the Obligor when due and payable shall bear interest at the default rate determined by the Bank, to the extent permitted under the applicable laws and regulations, on the basis of the actual number of days elapsed and a year of 365 days; provided, that the Bank may change such rate to the extent permitted under the applicable laws and regulations due to change in financial condition and any other reasonable cause; and provided, further, that in the case of foreign exchange transactions, international practices and commercial customs shall apply. | |
(6) | The Obligor shall be bound by any changes in the computation manner or time and manner of payment, respectively, of the Interest, etc. or default interest from the first date on which the Obligor should pay the interest after such change, if such change is made by the Bank as a result of any change in the financial circumstances or any other condition affecting the credit transaction or any other reasonable causes to the extent permitted under applicable laws and regulations. | |
(7) | If the change is made in accordance with Paragraphs (4), (5) and (6), the Bank shall post such change at each of the Banks offices and the electronic media determined by the Bank for one (1) month from the effective date of such change; provided, that if the change applies to certain Obligor, the change shall be notified to such Obligor separately. |
2
(8) | If the Obligor incurs unexpected disadvantages pursuant to Paragraphs (3) and (6) above, the Obligor may terminate the relevant contract within one (1) month from the first date on which the Obligor should pay the interest after change. In this case, the interest for the period from the effective date of such change to the date of termination shall be calculated at the interest rate that was effective prior to the change. Any amount not paid by the Obligor to the Bank when due and payable as a result of such termination shall bear interest at the default interest rate that was effective prior to the change. |
(1) | The Obligor shall bear the expenses set forth in the following items: |
1. | the expenses incurred by the Bank in enforcing or protecting (including terminating) the Banks rights including claims and security rights against the Obligor, the guarantor or the owner of collateral; | ||
2. | the expenses incurred by the Bank for inspection, foreclosure or disposition of any collateral; and | ||
3. | the expenses incurred by the Bank for sending demand or notice as a result of delay of payment or performance of the Obligors obligation. |
(2) | In the event that the Bank pays on the Obligors behalf any incidental cost or expenses not paid by the Obligor, the Obligor shall immediately reimburse the Bank for such payment. Any of such payment not paid immediately on the Banks demand shall bear default interest at the default interest rate as determined pursuant to Article 3, Paragraph (5) for the period from the date of the payment by the Bank to the date of full reimbursement by the Obligor. | |
(3) | In executing any loan agreement, the Bank shall inform the type and amount of incidental costs and expenses required for extending secured loans, in addition to the agreed interest, to make the Obligor know in advance. |
3
(1) | [Intentionally deleted] | |
(2) | The Bank shall in principle make collections on or dispose of any security in accordance with statutorily prescribed procedures; however, if the price of security is prevailing price in the exchange market, or a collection or disposition otherwise than in accordance with the statutory procedures is expected to be more likely to result in a profitable sale, the Bank may make collections on or dispose of the security in such a manner, at such a time, for such a price, etc. as are generally deemed appropriate. The Bank may deduct expenses from the proceeds and apply the remainder to the payment of the Obligors obligations to the Bank pursuant to Article 13. The Obligor shall promptly pay any deficiency to the Bank. In this case, the Bank shall notify the Obligor ten (10) days prior to the disposition of such security; provided, that the Bank expects that the recovery of claims would be seriously difficult before the court gives a decision to commence rehabilitation or bankruptcy proceeding pursuant to the Act on Debtor Rehabilitation and Bankruptcy, the Bank shall make collections on or dispose of any security and then, immediately notify the Obligor thereof. | |
(3) | In case of any delay in the Obligors performance of any obligations owing to the Bank, the Bank may continue to possess or make collections on or dispose of, pursuant to the Paragraph (2), the Obligors personal properties, Bills, and other negotiable instruments and securities in the Banks possession, even if they were not furnished to the Bank for security purposes. |
(1) | Upon occurrence and during the continuance of any of the events set forth below, Bank may, in its sole discretion upon notice to Obligor, declare all obligations that the Obligor owes to the Bank immediately due and payable, and cause the Obligor to immediately pay and perform such obligations, including, without limitation, the obligation to make advance reimbursements for a payment guarantee: |
1. | an order or notice of attachment, provisional attachment or attachment for delinquent taxes or public imposts is issued, or a compulsory execution or disposition due to delinquent taxes or public imposts is commenced with respect to any of the Obligors deposits or other claims against the Bank in an amount in excess of KRW 900 million; provided, that in case of obligation secured by any collateral, the foregoing shall only apply if the recovery of claims is seriously difficult; | ||
2. | an order or notice of attachment or attachment for delinquent taxes or public imposts is issued, or a compulsory execution or disposition due to delinquent taxes or public |
4
imposts is commenced with respect to any of the collaterals provided by the Obligor (excluding the Obligors deposit or other claims against the Bank set forth in the preceding Item); | |||
3. | an application is filed by the Obligor for bankruptcy, compulsory composition or corporate reorganization of the Obligor; a bankruptcy proceeding is commenced against the obligor or the Obligor is listed on the registry of delinquent debtors and such proceeding is not dismissed or listing continues for a period of thirty (30) consecutive days; | ||
4. | the Clearing House suspends the Obligors transactions; | ||
5. | the Obligor is deemed to stop payment due to suspension of its business for a period of thirty (30) consecutive days; | ||
6. | [Intentionally deleted] |
(2) | [Intentionally deleted] | |
(3) | Upon the occurrence and during the continuance of any of the events set forth below, Bank may, in its sole discretion upon notice to Obligor, declare all obligations which the Obligor owes to the Bank and are related to each such event immediately due and payable, and cause the Obligor to immediately pay and perform such obligations; provided, that on or before three (3) business days prior to the date on which such obligations of the Obligor shall become due and payable, the Bank shall give a notice to the Obligor that the Obligor has failed to pay or perform the relevant obligations as set forth in any of the following Items and the relevant obligations of the Obligor will become due and payable, and if the Bank fails to give such notice to the Obligor before three (3) business days prior to the date on which such obligations of the Obligor shall become due and payable, the relevant obligations of the Obligor will become due and payable on the third business day after the date of actual arrival of notice and the Obligor shall pay and perform the relevant obligations: |
1. | the Obligor has failed to pay Interest, etc. for fourteen (14) days continuously after the due date thereof; or | ||
2. | the Obligor has failed to pay an installment payment on the due date and it remains unpaid for thirty (30) days. | ||
3. | Provided, that, the Bank, upon the drawdown of the loan, will provide the Obligor with the payment schedule for the principal of and interest on the loan. |
(4) | Upon the occurrence and during the continuance of any of the events set forth below, and as |
5
a result the Banks rights are put in jeopardy, the Bank may, in its sole discretion upon notice to Obligor, demand the Obligor to repay obligations and to cancel attachment, etc. and to restore creditworthiness, and declare all obligations that the Obligor owes to the Bank immediately due and payable on the due date designated in written notice or demand tendered by the Bank more than ten (10) days prior to the due date, and the Obligor shall immediately pay and perform such obligations: |
1. | the Obligor fails to pay the obligations which are immediately due and payable pursuant to Paragraph (3) or (5); | ||
2. | an order or notice of attachment or an attachment for delinquent taxes or public imposts is issued with respect to properties of the Obligor other than those described in Item 1 or 2 of Paragraph (1) above and such attachment continues for a period of thirty (30) consecutive days, and for this reason the creditworthiness of the Obligor is substantially deteriorated and the recovery of claims is seriously difficult; | ||
3. | a public sale on collateral commences in order to enforce the security right or a notice of provisional attachment is issued pursuant to the Civil Enforcement Act with respect to any property of the Obligor other than those specified in Paragraph (1) Item 1 above, for this reason, the creditworthiness of the Obligor is substantially deteriorated and the recovery of claims is seriously difficult; | ||
4. | it shall become difficult for the Bank to maintain a normal banking business with the Obligor due to the breach by the Obligor of any provisions in Article 5 or Article 19 of the General Terms and Conditions and such breach continues for a period of thirty (30) consecutive days following notice to the Obligor by Bank; | ||
5. | the Obligor is found to have intentionally submitted to Bank in connection with a credit transaction, documents that are forged or altered or found to be false in a material respect, or intentionally submitted to Bank in connection with a credit transaction, materials deemed to be, when taken together with all materials submitted to Bank, incomplete in a material respect; | ||
6. | the creditworthiness of the Obligor deteriorates substantially as a result of the commencement of liquidation procedures against Obligor or shutdown or suspension of Obligors business due to labor disputes, and such liquidation procedures or shutdown or suspension of the Obligors business shall continue for a period of ten (10) days from the day Obligor first has notice of such occurrence; | ||
7. | [Intentionally deleted] |
(5) | Upon the occurrence and during the continuance of any of the events set forth below, the Bank may, in its sole discretion upon notice to Obligor, declare all obligations that the |
6
Obligor owed to the Bank with respect to which such event occurs immediately due and payable on the due date designated in written notice or demand tendered by the Bank more than ten (10) days prior to the due date, and the Obligor shall immediately pay and perform such obligations: |
1. | [Intentionally deleted] | ||
2. | any breach by the Obligor of a material provision of the agreements with the Bank, including, without limitation, the agreement to obtain fire insurance with respect to the collateral, or the agreement to provide to the Bank as collateral the machinery or building which has been constructed, installed or manufactured with proceeds of the loans extended by the Bank to the Obligor, and such breach continues for a period of thirty (30) consecutive days following notice from Bank to the Obligor. | ||
3. | [Intentionally deleted] |
(6) | Even when any of the Obligors obligations to the Bank are accelerated under Paragraphs (1) through (5), if the Bank expressly waives the effect of such Paragraphs or if normal transactions are resumed between the Bank and the Obligor notwithstanding the acceleration (e.g., the Bank receives an installment payment, principal of and interest on installment indebtedness, interest or default interest), the acceleration shall be deemed to have been rescinded with respect to such obligation or the obligation designated by the Bank as of the time of the Banks waiver or of the resumption of the normal banking transactions. | |
(7) | In the event that there is an interested party of the Obligor competing over the Obligors claim against the Bank, the Bank may exercise its right of set-off. |
(1) | If the payment obligation is accelerated pursuant to each Item of Article 7 Paragraph (1) above, the Bank shall notify such fact in writing to the joint and several guarantor within fifteen (15) business days from the date on which such obligations of the Obligor shall become due and payable if any event under Item 1 or 6 occurs or if the Clearing House suspends the Obligors transactions under Item 4, or otherwise, from the date on which the Bank recognizes such event of acceleration. | |
(2) | The obligation is immediately due and payable in accordance with Article 7, Paragraphs (4) and (5), the Bank shall notify the joint and several guarantor in writing within fifteen (15) business days from the date on which such obligations of the Obligor shall become due and payable. | |
(3) | Even if the joint and several guarantor receives a notice of acceleration in accordance with |
7
Paragraphs (1) and (2), the consent of the joint and several guarantor for continuous transaction is not required in respect of such obligation of which acceleration has been rescinded pursuant to Article 7, Paragraph (6). In this case, the Bank shall give a notice of rescission of acceleration in writing to the joint and several guarantor of such obligation within fifteen (15) business days . |
(1) | The Obligor shall automatically repurchase and immediately pay at face value, without demand or notice from the Bank, all the discounted Bills set forth below. If the Obligor performs its repurchase obligation before the due date of each Bill, the Bank shall refund the discount charge for the period from the date of performance of repurchase obligation to the due date; |
1. | all of Bills requested for discount, if any of the events described in Article 7, Paragraph (1) occurs with respect to the Obligor; | ||
2. | if any of the events described in Article 7, Paragraph (1) occurs with respect to the person who issued or accepted the Bills or such person fails to pay the Bill when due, which are issued or accepted by him/her, all Bills which he/she issued or accepted. |
(2) | The Obligor shall repurchase and immediately pay at face value all the discounted Bills as set forth below on the due date designated in notice or demand tendered by the Bank in writing more than ten (10) days prior to the due date. In this case, if the Obligor performs its repurchase obligation before due, the Bank shall refund the amount equivalent to the discount charge from the date of performance of repurchase obligation to the due date; |
1. | all Bills requested to be discounted, if any of the events described in Article 7, Paragraphs (4) and (5) occurs with respect to the Obligor; | ||
2. | if any of the events described in Article 7, Paragraphs (4) and (5) occurs with respect to the person who issued or accepted the Bills, all Bills which he/she issued or accepted. |
(3) | Until the Obligor performs its repurchase obligations under Paragraphs (1) and (2) above, the Bank may exercise all rights as holder of the Bills. | |
(4) | The provision of Article 7, Paragraph (6) shall apply to the cases of the preceding Paragraphs (1) and (2) mutatis mutandis . |
8
(1) | In the event that the Obligors obligation is due and payable whether by maturity in accordance with its term, or by acceleration upon occurrence of any of the events described in Article 7, or by occurrence of the Obligors obligation to repurchase the discounted Bills under Article 9, or for any other causes, the Bank may set off by written notice to the Obligor any such obligation at any time against any of the Obligors deposits with the Bank and any other of the Obligors claims against the Bank irrespective of the due dates thereof. | |
(2) | In the event that the Bank exercises the right to set-off against any advance reimbursement obligation of the Obligor pursuant to the preceding Paragraph, the Obligor hereby waives any defense permitted under Article 443 of the Civil Code against such set-off by the Bank, whether or not any security is furnished to the Bank with respect to the guaranteed obligation or the reimbursement obligation; provided, that the Bank shall immediately perform its guarantee obligation after such set-off. | |
(3) | In the event that the Obligor becomes obligated to the Bank as referred to in Paragraph (1), the Bank may, on behalf of the Obligor, also make withdrawals from the Obligors deposits in the Obligors name provided by the Obligor as security, and may apply such withdrawals to the payment of the Obligors obligations regardless of the arrival of the maturity of such deposits, without any advance notice and without complying with any particular procedures; provided, however, that immediately after such withdrawal and application, the Bank shall give a notice to the Obligor. | |
(4) | If the Bank sets off any obligation of the Obligor against any of the Obligors or the guarantors deposits and any other of the Obligors or the guarantors claims (deposits, etc.) against the Bank pursuant to Paragraphs (1) and (2), the Bank may take payment suspension measures in respect of deposits, etc. for the time being prior to set-off; provided, that if the guarantor takes payment suspension measure in respect of deposits, etc. of the guarantor, the Bank shall immediately notify the guarantor thereof. | |
(5) | In the event that the Bank effects a set-off in accordance with the provisions of Paragraphs (1) and (2) or makes any withdrawals and application in accordance with the provisions of Paragraph (3), such set-off or withdrawal and application shall be promptly effected taking into account the fair benefits of the Obligor guarantor security provider and the period for purposes of computation of Interest, etc. on the Obligors credits and obligations and default interest, shall extend up to and including the date on which the notice of set-off is delivered to the Obligor and the date on which such set-off, withdrawal and application is made, and the rate shall be determined by the Bank, and the foreign exchange rate shall be determined as the market rate prevailing at the time of the computation by the Bank. |
9
(1) | The Obligor may at any time set off any of the Obligors deposits or any other of the Obligors claims against the Bank, the due date of which has arrived, against any obligations owed to the Bank irrespective of the due dates of such obligations. | |
(2) | In the event that the Obligor effects a set-off against a Bill which was discounted by the Bank prior to its due date pursuant to Paragraph (1) above, the Obligor shall repurchase such Bill at its face value deducting the discount charge for the period from the date of repurchase until its due date; provided, that the Obligor shall not effect a set-off against any discounted Bills which the Bank has negotiated to any third party. | |
(3) | Notwithstanding the provisions of the preceding two Paragraphs, the set-off of any claims and obligations denominated in a foreign currency may not be effected by the Obligor unless and until their respective due dates arrive and all procedures are completed in accordance with the laws and regulations with respect to foreign exchange. | |
(4) | In the event that the Obligor effects a set-off in accordance with Paragraphs (1) through (3), the Obligor shall send the Bank a written notice and shall promptly submit to the Bank any passbook or other certificate evidencing deposits or claims against which such set-off is effected after having the previously reported signature and/or seal affixed thereon. | |
(5) | In the event that the Obligor effects a set-off in accordance with Paragraphs (1) through (3), the period for purposes of computing interest on the Obligors credits and obligations, discount charge, etc. and default interest, shall be up to and including the date on which the Bank receives the Obligors notice of set-off, and the rate shall be prescribed by the Bank, and the foreign exchange rate shall be determined as the market rate prevailing at the time of computation by the Bank. The Obligor shall pay to the Bank such fees with respect to the set-off, as are agreed to be payable with respect to prepayment between the Bank and the Obligor. |
(1) | With respect to Bill transaction, if the Bank effects set-offs or makes withdrawals and appropriations as set forth in Article 10 without exercising the Banks rights under the Bills, the Bank will not be required to simultaneously return any such Bills to the Obligor. In the event that the Bills are returned to the Obligor, the Bills shall be returned at the Banks office, which conducts banking transactions with the Obligor, and the Bank shall request prompt acceptance by the Obligor of the Bill. Same procedures shall apply to the handling of the Bills in the event of set-offs by the Obligor under Article 11. | |
(2) | If the Bank effects set-offs or makes withdrawals and appropriations as set forth in Article 10 by exercising the Banks rights under the Bills, the Bank will not be required to present or deliver any such Bills to the Obligor if any of the following conditions is satisfied and the |
10
provision of Paragraph (1) shall apply with respect to the handling of the Bills: |
1. | If the Bank does not know the Obligors current whereabouts; | ||
2. | If the Bank is the place designated as the place at which such Bills are payable; or | ||
3. | If the Bank deems it unavoidable to omit presentment or delivery of the Bills to the Obligor for such reasons as interruption of transport or communication, or use for collection, etc. |
(3) | If any of the Obligors obligations to the Bank that are due and payable are not paid in full after a set-off, etc. has been effected as set forth in Articles 10 and 11, and other parties are liable under the Bills in addition to the Obligor, the Bank may retain such Bills, and may apply the proceeds of collection or disposition of them to the payment of the Obligors obligations in accordance with Article 13. | |
(4) | The Bank may make a demand for payments without presenting the Bills for the purpose of tolling the statute of limitations for recovery on the Bills. |
(1) | In the event that payments made by the Obligor or set-offs or withdrawals and applications made by the Bank as provided for in Article 10 are insufficient to satisfy all of the Obligors obligations, the Bank shall apply such payments and/or such set-offs or withdrawals to the satisfaction of first, the expenses, second, the interest and third, the principal of the Obligors obligation, in such order as applicable; provided, however, the Bank may change the order of application unless such change is adverse to the Obligors interest. | |
(2) | In the event that there are two or more of the Obligors obligations against which payment or set-off is made and such obligations are not discharged in full by such payment or set-off, the Civil Code and other laws shall apply to the amount recovered in the compulsory execution or public sale by exercise of security rights. | |
(3) | In the event that there are two or more of the Obligors obligations against which payment or set-off is made and any voluntary repayments or deposits which does not fall under Paragraph (2) above are insufficient to satisfy all of the Obligors obligations, such repayments or deposits, etc. may be applied to the satisfaction of the Obligors obligations in such order and in such manner as the Obligor may determine. In this case, if the determination of the order of application is likely to adversely affect the Banks rights, the Bank may without delay raise an objection thereto, and change and designate the obligation to be paid or set off, as determined considering the availability of securities or guarantees, the value and marketability of such securities or guarantees, the due date and the possibility |
11
of settlement of the discounted Bills, etc. | ||
(4) | In the event that the Bank applies the payments and/or set-offs or withdrawals to the satisfaction of the Obligors obligations in such order different from statutory order specified in the Civil Code or any other laws in accordance with Paragraph (3), the Bank shall take into consideration the reasonable interests of the Obligor, the security provider and the guarantor not to contrary for the protection of the Banks rights. |
(1) | In the event of the set-offs effected by the Obligor, as set forth in Article 11, if the deposits, etc. are insufficient to satisfy all of the Obligors obligations, such deposits, etc. may be applied to the satisfaction of the Obligors obligations in such order as the Obligor may determine. | |
(2) | When the Obligor fails to make the determination as set forth in the preceding Paragraph, or if the determination of the order of application provided in Paragraph (1) is likely to adversely affect the Banks rights, the Bank shall designate the obligation to be satisfied by set-off pursuant to Article 13 mutatis mutandis . |
(1) | In the event that the Bills which the Obligor has drawn, endorsed, accepted or guaranteed, or the instruments which the Obligor has furnished to the Bank are lost, destroyed, damaged or delayed in arrival, due to causes not attributable to the Bank, such as force majeure, disasters, calamities or accidents during transit, the Obligor shall pay the Obligors obligations as recorded on the Banks books, vouchers, etc.; provided, that if the Obligor presents the materials different from those recorded in books and vouchers of the Bank, the Bank shall compare them and fix the Obligors obligation and then, the Obligor shall pay and perform such obligations. | |
(2) | The Obligor shall forthwith furnish any substitute Bills or other instruments, upon the Banks demand, in the event of loss, destruction or damage stated in Paragraph (1) above; provided, that this provision shall not apply to the Bills or other instruments which the Bank acquired in the course of transactions with a third party. | |
(3) | The Bank shall be liable for any damage incurred by the Obligor without any negligence of the Obligor from bearing double payment obligations as a result of payments or provision of Bills or other instruments pursuant to Paragraph (1) or (2). | |
(4) | If the Bank has entered into transactions or has handled matters after making an adequate |
12
inspection with due care to check the seal impression or signature on the Bills or instruments against the Obligors specimen seal impression or specimen signature previously filed with the Bank and finding such to be genuine, the Obligor shall be liable for any losses and damages arising from forgery, alteration, wrongful use, etc., of the Bills, instruments and seals or signatures, and shall be liable in accordance with the terms of any such Bills or instruments. |
(1) | The Obligor shall file with the Bank in the form prescribed by the Bank in advance the following: the Obligors name, trade name, representative, address and seal or signature, etc., and the name and seal or signature of the Obligors agent, if any transaction is performed with the Bank through such agent. | |
(2) | The Obligor shall forthwith notify the Bank in writing of any change in the matters filed with the Bank as set forth in Paragraph (1). Before the Obligor notifies such change, the Bank may treat as if there is no such change in the matters filed with the Bank and the Obligor shall not raise any objection thereto. The foregoing shall apply to any changes which have been registered in the Company Registry. The Obligors losses or damages arising from such treatment of the Bank shall be borne by the Obligor and the Bank shall have no responsibility therefor. |
(1) | Any notice given by the Bank or any document dispatched by the Bank to the Obligors latest address filed with the Bank shall be assumed to have been delivered at the time it normally should have been delivered. | |
(2) | If any notice given or any documents dispatched by the Bank in accordance with Paragraph (1) above has not been delivered or delayed to be delivered to the Obligor due to the Obligors negligence to notify any change pursuant to Article 16, Paragraph (2), such notice or documents shall be deemed to have been delivered at the time it normally should have been delivered; provided, that notice of set-off or acceleration of payment and any other important expression of intention shall be deemed to have been delivered only if such notice was sent by the delivery-certified and content-certified mail. |
13
(3) | Copies kept by the Bank of the notices or documents forwarded by the Bank to the Obligor and the Banks record indicating such forwarding and the date thereof shall constitute prima facie evidence that the Bank has given the notices or documents on such date recorded on the Banks book, etc. |
(1) | Upon the Banks demand, the Obligor shall promptly submit to the Bank, reports with respect to the Obligors assets, liabilities, management, the status of business or performance of credit conditions and any other important matters; and the Obligor shall also provide assistance necessary for the Banks investigation of the Obligors accounts, factories, place of business or any other matters, upon the Banks request. | |
(2) | The Obligor shall promptly submit to the Bank, without the Banks request, a report of any material change that has occurred or is likely to occur with respect to the Obligors assets, management or the status of business or other matters which may affect the Obligors transactions with the Bank. | |
(3) | If it is likely that it would be impossible for the Bank to collect its credit extended to the Obligor due to the suspension of trade by the Clearing House, non-performing credit or deterioration of management conditions of the Obligor based on the reports and investigations submitted in accordance with Paragraphs (1) and (2), the Bank may at any time send members of its own staff, to the extent necessary for the purpose of protecting the Banks rights, to manage or supervise the Obligors assets and business management. |
(1) | [Intentionally deleted] | |
(2) | [Intentionally deleted] | |
(3) | [Intentionally deleted] |
(1) | Any obligations in connection with the Obligors transactions with the Bank shall be performed at the Banks office that conducts transactions with the Obligor, unless otherwise agreed; provided, however, if deemed necessary for the management of non-performing credit or for any other reasonable causes, the Bank may transfer the management of credit to |
14
the principal office, local main office or other business offices of the Bank. Such transferred obligations of the Obligor shall be performed at the principal office, local main office or other business offices of the Bank to which the management of credit has been transferred. | ||
(2) | The credit transactions under the General Terms and Conditions shall be governed by and be construed in accordance with the laws of the Republic of Korea, even if the Obligor is not a Korean person or company. |
15
AMKOR TECHNOLOGY KOREA, INC.
|
||
|
||
/s/ KYU-HYUN KIM
|
||
|
||
Name: Kyu-Hyun Kim
|
||
|
||
WOORI BANK
|
||
|
||
/s/ HAN SIK KIM
|
||
|
||
Name: Han Sik Kim
|
16
Joint and several guarantor: |
Amkor Technology, Inc. (signature)
Name: Kenneth T. Joyce Title: Executive Vice President And Chief Financial Officer |
|
/s/ KENNETH T. JOYCE | |||
|
|
(1)
|
Obligors name: | Amkor Technology Korea, Inc. | ||
|
Representative Director Kyu-Hyun Kim | |||
Obligors address:280-8, Sungsoo-dong 2-ga, Sungdong-gu, Seoul |
|
1 | Woori Bank |
(2) | Scope of obligations guaranteed | |
The Bank has explained to the Guarantor that the Guarantor may elect any one of the following 3 types of guarantee, under which the scope of respective obligations guaranteed varies from one another, and among them, the Guarantor hereby agrees to guarantee those obligations (including interest, default interest, and any other ancillary obligations) as set forth in |
(i) | Specific kun-guarantee: all of the following obligations owed by the Obligor to the Bank (head office and branch offices), which are now existing or will exist hereinafter as a result of the transactions under the following agreements (if the maturity date or transaction period of any of the following agreements is extended with the Guarantors consent, including such obligations): | ||
Foreign currency credit facility agreement dated as of
; and
|
|||
agreement dated as of |
(ii) | Limited kun-guarantee: all of the following obligations owed by the Obligor to the Bank (head office and branch offices), which are now existing or will exist hereinafter as a result of the following types of transaction: | ||
transaction; and | |||
transaction |
(iii) | Comprehensive kun-guarantee: all of the following obligations owed by the Obligor to the Bank (head office and branch offices), which are now existing or will exist hereinafter: |
(a) | all obligations resulting from borrowings based on promissory notes, borrowings based on certificates, borrowings based on overdraft accounts, promissory note discounts, payment guarantees, factoring, transactions relating to installment deposits for mutual aid ( sanghobukeum ), acquisition of corporate bonds, lending of securities, foreign exchange transactions, and other credit transactions; | ||
(b) | all guarantee obligations with respect to any transaction set forth in paragraph (a) above entered into with the creditor and a third party; and | ||
(c) | all obligations under promissory notes or checks acquired by the creditor as a result of any transaction set forth in paragraph (a) above entered into with a third party. |
(3) | Maximum Kun-guarantee Amount |
(4) | Settlement Date of Kun-guarantee |
|
2 | Woori Bank |
The Bank has explained to the Guarantor that the Guarantor may elect any one of the following 3 types in determining the kun-guarantee settlement date, and the Guarantor hereby elects the date determined in accordance with: |
as the settlement date. |
(i) | Future Designation: The settlement date is not currently set. Three (3) years after the date hereof, however, the Guarantor can designate the kun-guarantee settlement date by giving written notice; provided that such designated settlement date must be at least fourteen (14) days after the date on which the notice is received, and if fewer days are left after the notice is received, then the settlement date shall be the date falling on the 14th day after the date on which the notice is received. | ||
(ii) | Automatic Determination: The settlement date is not currently set. Three (3) years after the date hereof, however, the Guarantor can designate the kun-guarantee settlement date by giving written notice; provided that such designated settlement date must be at least fourteen (14) days after the date on which the notice is received, and if fewer days are left after the notice is received, then the settlement date shall be the date falling on the 14th day after the date on which the notice is received; provided further that if the Guarantor does not express any intention until five (5) years have passed from the date hereof, then the settlement date shall be the date falling on the fifth (5 th ) year after the date hereof. | ||
(iii) | Designation: Year Month ___ Day |
1. |
Financial institutions under the Banking Act and banks under special laws;
2. Credit guarantee funds under the Credit Guarantee Fund Act; |
||
3. | Technology credit guarantee funds under the Act on Financial Support of New Technology Business; | ||
4. | Housing financing credit guarantee funds under the Act on Stability of Workers Housing and Support for Accumulation of Large Sum Holdings; | ||
5. | Incorporated guarantee insurance companies under the Insurance Business Act; and | ||
6. | Other institutions that issue guarantees under agreements with the Bank. |
Article 2.
|
Special Agreement | Guarantor: | ||||
|
/s/ KENNETH T. JOYCE | (seal) | ||||
|
|
3 | Woori Bank |
Consultant
|
Title: Sr. Manager | Name: | /s/ YONG SU KIM | (seal) | ||||
|
1. Have you received the General Terms and Conditions for Bank
Credit Transactions, other transaction agreements and a copy of
this Agreement?
|
Received | |
|
||
2. Have you been explained the material contents of the above
terms and conditions and in the front and reverse pages of this
Agreement?
|
Heard | |
|
||
3. Have you been explained the Obligors liability status, any
late payment, and the like?
|
Heard |
|
4 | Woori Bank |
|
5 | Woori Bank |
Creditor and Kun-mortgagee: Woori Bank | ||||||
/s/ Han Sik Kim | ((signature)) | |||||
Title: | Relationship Manager | |||||
Woori Bank Chongro Corporate Banking Center | ||||||
(seal of registered general manager affixed) |
Obligor: | Amkor Technology Korea, Inc. | ((seal)) | ||||
|
Representative Director | /s/ Kyu-Hyun Kim | ||||
|
||||||
Address: 280-8, Sungsoo-dong 2-ga, Sungdong-gu, Seoul |
Kun-mortgagor: | Amkor Technology Korea, Inc. | ((seal)) | ||||
|
Representative Director | /s/ Kyu-Hyun Kim | ||||
|
||||||
Address: 280-8, Sungsoo-dong 2-ga, Sungdong-gu, Seoul |
1.1 | Scope of Secured Obligations |
(a) |
all obligations arising from or in connection with borrowings based on promissory
notes, certificates or overdraft accounts, promissory note discounts, payment
guarantee, factoring, transactions relating to installment deposits for mutual aid
(
sanghobukeum
), transfer of corporate bonds, lending of securities, foreign exchange
transactions, and other credit transactions;
|
|
(b) | all obligations arising from or in connection with credit card transactions (except where a third party other than the Obligor provides property as security); | |
(c) | all obligations under a guarantee relating to any transaction set forth in paragraph (a) and entered into between the Creditor and a third party; and |
(d) | all obligations under promissory notes or cheques acquired by the Creditor in connection with any transaction set forth in paragraph (a) and entered into between the Creditor and a third party. |
1.2 | Maximum Claim Amount |
(i) |
USD Three Hundred Ninety (390) Million
|
||
(ii) | Notwithstanding the fact that the maximum claim amount is determined based on the initial claim amount for purposes of saving registration fees, etc., this Agreement shall in no event be construed as a kun-mortgage agreement securing certain specified obligations for such reason. |
1.3 | Settlement Date of Security Interest under Kun-mortgage |
(i) | Future Designation: The settlement date is not currently set. Three (3) years after the date hereof, however, the Mortgagor can designate the kun-mortgage settlement date by giving written notice; provided that such designated settlement date must be at least fourteen (14) days after the date on which the notice is received, and if fewer days are left after the notice is received, then the settlement date shall be the date falling on the 14th day after the date on which the notice is received. | ||
(ii) | Automatic Determination: The settlement date is not currently set. Three (3) years after the date hereof, however, the Mortgagor can designate the kun-mortgage settlement date by giving written notice; provided that such designated settlement date must be at least fourteen (14) days after the date on which the notice is received, and if fewer days are left after the notice is received, then the settlement date shall be the date falling on the 14th day after the date on which the notice is received; provided further that if the Guarantor does not express any intention until five (5) years have passed from the date hereof, then the settlement date shall be the date falling on the fifth (5 th ) year after the date hereof. | ||
(iii) | Designation: Year Month ___ Day |
Category | Responsible Party | |||||||||||
Obligor | Mortgagor | Creditor | ||||||||||
Registration Tax
|
þ | o | o | |||||||||
|
||||||||||||
Education Tax
|
þ | o | o | |||||||||
|
||||||||||||
Purchase of Peoples Residence Bonds
|
þ | o | o | |||||||||
|
||||||||||||
Judicial Scriveners Fees
|
þ | o | o | |||||||||
|
||||||||||||
Deregistration (Termination of
Kun-mortgage)
|
þ | o | o | |||||||||
|
||||||||||||
Assessment/evaluation Fees
|
þ | o | o | |||||||||
|
||||||||||||
|
o | o | o |
Do you revoke the provision of house as collateral?
(If you revoke, this Agreement shall be cancelled
and the Mortgagor shall not bear any responsibility
as a mortgagor. In such case, all costs for
granting and terminating the mortgage shall be
borne by the Mortgagor)
|
___,
(month/day/year) |
|
|
||
Do you waive your right to revoke the provision of
house as collateral?
(If you waive, this Agreement shall become fixed
immediately.)
|
___,
(month/day/year) |
Consultant
|
Title: Manager | Name: | ||
|
/s/ Hongbin Lim ((signature)) |
Have you certainly received the General Terms and Conditions for
Bank Credit Transactions and a copy of this Agreement?
|
Received | |
|
||
Have you been explained of the material contents of the above
terms and conditions and in the front and reverse pages of this
Agreement?
|
Heard |
Property | Priority | |
|
||
<See Attachment>
|
||
|
||
The completion of the registration pursuant
to this Agreement is hereby confirmed, and
the original certificate of registration has
been received.
|
1 | This is a summary, not a full translation, of the list of mortgaged properties submitted to the court, which list contains the descriptions of each building and every item of machinery/equipment. |
Three Months
|
||||||||||||||||||||||||
Year Ended December 31, | Ended March 31, | |||||||||||||||||||||||
2002 | 2003 | 2004 | 2005 | 2006 | 2007 | |||||||||||||||||||
Earnings
|
||||||||||||||||||||||||
Income (loss) before income taxes,
minority interests and discontinued operations
|
$ | (825,403 | ) | $ | (55,833 | ) | $ | (28,868 | ) | $ | (145,288 | ) | $ | 182,494 | $ | 39,024 | ||||||||
Equity Investment losses
|
(208,165 | ) | (3,290 | ) | (2 | ) | (55 | ) | | | ||||||||||||||
Income (loss) before income taxes,
equity investment losses, minority interests and discontinued
operations
|
(617,238 | ) | (52,543 | ) | (28,866 | ) | (145,233 | ) | 182,494 | 39,024 | ||||||||||||||
Interest expense
|
143,441 | 138,775 | 145,897 | 163,125 | 160,909 | 37,071 | ||||||||||||||||||
Amortization of debt issuance costs
|
8,251 | 7,428 | 6,182 | 7,948 | 7,250 | 1,724 | ||||||||||||||||||
Interest portion of rent
|
4,995 | 5,463 | 5,928 | 6,215 | 5,583 | 1,544 | ||||||||||||||||||
Less (earnings) loss of affiliates
|
| | | | | | ||||||||||||||||||
$ | (460,551 | ) | $ | 99,123 | $ | 129,141 | $ | 32,055 | $ | 356,236 | $ | 79,363 | ||||||||||||
Fixed Charges
|
||||||||||||||||||||||||
Interest expense
|
$ | 143,441 | $ | 138,775 | $ | 145,897 | $ | 163,125 | $ | 160,909 | $ | 37,071 | ||||||||||||
Amortization of debt issuance costs
|
8,251 | 7,428 | 6,182 | 7,948 | 7,250 | 1,724 | ||||||||||||||||||
Interest portion of rent
|
4,995 | 5,463 | 5,928 | 6,215 | 5,583 | 1,544 | ||||||||||||||||||
$ | 156,687 | $ | 151,666 | $ | 158,007 | $ | 177,288 | $ | 173,742 | $ | 40,339 | |||||||||||||
Ratio of earnings to fixed charges
|
x | (1) | x | (1) | x | (1) | x | (1) | 2.05 | 1.97 | ||||||||||||||
(1) | The ratio of earnings to fixed charges was less than 1:1 for 2005. In order to achieve a ratio of earnings to fixed charges of 1:1, we would have had to generate an additional $145.2 million of earnings in 2005. The ratio of earnings to fixed charges was less than 1:1 for the year ended December 31, 2004. In order to achieve a ratio of earnings to fixed charges of 1:1, we would have had to generate an additional $28.9 million of earnings for the year ended December 31, 2004. The ratio of earnings to fixed charges was less than 1:1 for the year ended December 31, 2003. In order to achieve a ratio of earnings to fixed charges of 1:1, we would have had to generate an additional $52.5 million of earnings in the year ended December 31, 2003. The ratio of earnings to fixed charges was less than 1:1 for the year ended December 31, 2002. In order to achieve a ratio of earnings to fixed charges of (1) 1:1, we would have had to generate an additional $617.2 million of earnings in the year ended December 31, 2002. |