July 1997
AMKOR/ANAM PILIPINAS, INC.
as Borrower
ANAM INDUSTRIAL CO. LTD.
as Guarantor
THE KOREA DEVELOPMENT BANK
as Lender
---------------------------
US$55,000,000 BRIDGE LOAN
---------------------------
12th Floor
Two Exchange Square
Hong Kong
================================================================================ TABLE OF CONTENTS
PAGE
----
1. INTERPRETATION...................................................................1
2. THE FACILITY.....................................................................5
3. CONDITIONS PRECEDENT.............................................................5
4. DRAWDOWN ........................................................................5
5. REPAYMENT ON MATURITY OR DEMAND..................................................6
6. PREPAYMENT.......................................................................6
7. INTEREST ........................................................................6
8. FEES ........................................................................7
9. TAXES ........................................................................7
10. CHANGE IN CIRCUMSTANCES..........................................................8
11. PAYMENTS .......................................................................10
12. REPRESENTATIONS AND WARRANTIES..................................................10
13. UNDERTAKINGS....................................................................12
14. GUARANTEE.......................................................................15
15. DEFAULT .......................................................................17
16. SET-OFF .......................................................................21
17. EXPENSES AND STAMP DUTY.........................................................21
18. CALCULATIONS AND EVIDENCE.......................................................22
19. ASSIGNMENT......................................................................22
20. REMEDIES, WAIVERS, AMENDMENTS AND CONSENTS......................................23
21. COMMUNICATIONS..................................................................23
22. PARTIAL INVALIDITY..............................................................24
23. COUNTERPARTS....................................................................24
TABLE OF CONTENTS
(CONTINUED)
PAGE
----
24. GOVERNING LAW AND JURISDICTION..................................................24
SCHEDULE 1...........................................................................27
Notice of Drawdown..........................................................27
SCHEDULE 2...........................................................................28
Conditions Precedents.......................................................28
SCHEDULE 3...........................................................................29
Form of Certificate of Borrower.............................................29
SCHEDULE 4...........................................................................30
Form of Certificate of the Guarantor........................................30
SCHEDULE 5...........................................................................31
Freshfields' Legal Opinion..................................................31
SCHEDULE 6...........................................................................35
List of encumbrances/security interests outstanding of
Borrower and the Borrower's Affiliates......................................35
SCHEDULE 7...........................................................................36
List of indebtedness of the Borrower, the Guarantor
and the Borrower's Affiliates...............................................36
THIS BRIDGE LOAN AGREEMENT is made as of __ July, 1997.
BETWEEN
AMKOR/ANAM PILIPINAS, INC. of KM 22 East Service Road, South Superhighway, Muntinlupa, Metro Manila, Republic of the Philippines (the BORROWER);
ANAM INDUSTRIAL CO., LTD of 280-8, 2-ka Sungsu-dong, Sungdong-ku, Seoul, Republic of Korea (the GUARANTOR); and
THE KOREA DEVELOPMENT BANK, of 10-2, Kwanchol-dong, Chongno-ku (C.P.0. Box 28), Seoul, Republic of Korea (together with its permitted successors and assigns, the LENDER).
WHEREAS the Borrower desires to borrow funds in an amount not exceeding US$55,000,000 as a short-term bridge facility to refinance certain of its existing short and medium-term loans, and the Lender agrees to lend such amount, all upon and subject to the terms and conditions hereinafter set forth.
Accordingly, the Borrower, Guarantor and the Lender agree as follows:
INTERPRETATION
1.1 DEFINITIONS: In this Agreement, except to the extent that the context otherwise requires:
ADVANCES means the advances of an amount in the aggregate not exceeding US$55,000,000 made or to be made by the Lender under this Agreement or, as the case may be, the outstanding principal amount of such advances from time to time and ADVANCE means any of such Advances;
AFFILIATE means, with respect to any person, any other person that directly or indirectly controls, is under common control with or is controlled by, such person and, for purposes hereof, CONTROL means possession, direct or indirect, of the power to direct or cause the direction of management or policies through any legal, contractual or other modus provided that, in any event, any person that owns directly or indirectly securities having 5% or more of the voting power for the election of directors or other governing body of a corporation or 5% or more of the partnership or other ownership interests of any other person (other than as a limited partner of such other person) will be deemed to control such corporation or other person;
APPLICABLE RATE means, in respect of any Interest Period in respect of any Advance, LIBOR plus the Margin;
BUSINESS DAY means a day (other than a Saturday, Sunday or public holiday) on which (1) deposits in Dollars may be offered in the London inter-bank market
and (2) commercial banks are open in (a) Seoul, (b) Makati, Manila and (c) New York City;
COMMITMENT TERMINATION DATE means the date falling one month after the date of this Agreement;
DOLLAR(S), US$ AND $ mean the lawful currency of the United States of America;
EVENT OF DEFAULT means any of the events mentioned in Clause 15. 1 or any event or circumstance which, with the giving of any notice and/or the lapse of any period of time and/or the fulfilment of any other requirement, would become one of the events mentioned in that Clause;
FACILITY means an amount not exceeding US$55,000,000;
FINAL REPAYMENT DATE means, subject to Clause 15.2(b), the date falling 3 months after the date hereof;
INTEREST PAYMENT DATE means the last day of each Interest Period;
INTEREST PERIOD means a period by reference to which interest is calculated and payable on each Advance pursuant to Clause 7.1 or any overdue sum pursuant to Clause 15.3;
KOREA means the Republic of Korea;
LIBOR means, in respect of any Interest Period in respect of each Advance or any overdue sum hereunder, the arithmetic mean (rounded up, if necessary, to the next 1/16 per cent) of the offered quotations in effect at or about 11:00 a.m. (local time in London) on the second Business Day before the first day of each Interest Period for Dollar deposits for such Interest Period as displayed on the "LIBO" page of the Reuters Monitor Money Rate Service (hereafter the REUTERS SCREEN) (or any such successor page as determined by the Lender if the Reuters Screen is unavailable) for delivery on the first day of such Interest Period and, if no such successor page is available, the rate (rounded up, if necessary, to the next 1/16 per cent) at which the London office of Bank of America National Trust and Savings Association is offering Dollar deposits for that Interest Period is an amount comparable to such Advance or overdue sum, as the case may be, to prime banks in the London inter-bank marker at or about 11:00 a.m. (local time in London) on the second Business Day before the first day of that Interest Period for delivery on the first day of such Interest Period;
MARGIN means 1.35 per cent, per annum;
NOTICE OF DRAWDOWN means a notice substantially in the form of Schedule 1;
OBLIGORS means each of the Borrowers and the Guarantor;
PAYMENT ACCOUNT means account number 544-7-71671 (CHIPSUID 069628) maintained by the Lender with head office of Chemical Bank, New York, New York and;
PHILIPPINES means the Republic of Philippines.
1.2 CONSTRUCTION OF CERTAIN REFERENCES: Except to the extent that the context requires otherwise, any reference in this Agreement to:
an AGENCY of a state includes at any particular time, any agency, authority, central bank, department, government, legislature, minister, ministry, official, or public or statutory person (whether autonomous or not) of, or of the government of, that state or any political sub-division in or of that state;
this AGREEMENT includes this Agreement as from time to time amended, supplemented or novated, and any document which amends, supplements or novates this Agreement;
the ASSETS of a person shall be construed as a reference to the whole or any part of its business, undertaking, property, assets and revenues (including any right to receive revenues);
BORROWED MONEY includes any indebtedness for or in respect of money borrowed or raised (whether or not for a cash consideration), by whatever means, or for the deferred purchase price of assets or services;
a CONSENT includes an approval, authorization, exemption, filing, license, order, permission, recording or registration (and references to obtaining consents shall be construed accordingly);
a DIRECTIVE includes any present or future directive, regulation, requirement or credit restraint programme to be acted upon under direction from an agency of a state (in each case, whether or not having the force of law but, if not having the force of law, compliance with which is customary);
DISPOSAL includes any sale, assignment, exchange, transfer, concession, lease, surrender of lease, license, reservation, waiver, compromise, release, creation of security, dealing with or the granting of any option or right or interest whatsoever or any agreement for any of the same and dispose shall be construed accordingly;
an ENCUMBRANCE shall be construed as a reference to a mortgage, charge, pledge, lien, hypothecation, security interest, encumbrance or other security arrangement or interest or third party rights of any kind;
a GUARANTEE also includes any obligations (whatever called) of any person to pay, purchase, provide funds (whether by the advance of money, the purchase of or subscription for shares or other securities, the purchase of assets or services, or
otherwise) for the payment of, indemnity against the consequences of default in the payment of, or otherwise be responsible for, any indebtedness of any other person;
a HOLDING COMPANY of a person means, at any particular time, any person of which the first-mentioned person is a subsidiary;
any INDEBTEDNESS includes any obligation (whether present or future, actual or contingent, as principal or surety or otherwise) for the payment or repayment of money;
a LAW includes common or customary law and any constitution, decree, judgment, legislation, order, ordinance, directive, regulation, statute, treaty or other legislative measure, in each case of any jurisdiction whatever (and LAWFUL and UNLAWFUL shall be construed accordingly);
something having a MATERIAL ADVERSE EFFECT on a person is a reference to it having a material adverse effect (1) on the person's financial condition, business or operations or (2) on the ability of the person to perform and comply with its material obligations under any material agreements to which it is a party;
any OBLIGATION of any party under this Agreement or any other agreement shall be construed as a reference to an obligation expressed to be assumed by or imposed on it under this Agreement or that agreement, as the case may be (and due, owing, payable and receivable shall be similarly construed);
a PERSON includes any individual, company, corporation, firm, partnership, joint venture, association, organization, trust, state or agency of a state (in each case, whether or not having separate legal personality);
SECURITY means any mortgage, pledge, lien, hypothecation, security charge (whether fixed or floating, legal or equitable) or encumbrance other than those arising by operation of law;
SOURCE OF FUNDS means any bank, financial institution, market, participant or other person providing funds to the Lender for purposes of allowing the Lender to make the Advances available hereunder;
SUBSIDIARY in relation to any company means any other company or other entity directly or indirectly controlled by the first-mentioned company; for this purpose CONTROL means direct or indirect ownership of more than fifty percent (50%) of the voting share capital or equivalent right of ownership of such company or entity, or power to direct its policies and management whether by contract or otherwise;
TAX(ES) includes any present or future tax, levy, impost, duty, charge, fee, deduction or withholding of any nature and whatever called, by any
governmental or other fiscal authority, on whomsoever and wherever imposed, levied, collected, withheld or assessed;
TAX ON OVERALL NET INCOME of a party to this Agreement shall be construed as a reference to tax imposed by the jurisdiction in which its principal office is located on all or part of the net income, profits or gains before taxes of that party (whether worldwide, or only insofar as such income, profits or gains are considered to arise in or to relate to a particular jurisdiction);
the WINDING-UP of a person also includes the dissolution and liquidation of that person, and any equivalent or analogous procedure under the law of any jurisdiction in which that person is incorporated, domiciled or resident or carries on business or has assets; and
a DAY, MONTH OR YEAR shall be construed by reference to the Gregorian calendar.
1.3 PRINCIPLES OF CONSTRUCTION. The headings in this Agreement are inserted for convenience only and shall be ignored in construing this Agreement. References to Clauses or Schedules shall, unless the contrary is indicated, be deemed to be references to Clauses in or Schedules to this Agreement. Any reference to a sub-clause or a paragraph is to a sub-clause or paragraph of the Clause or, as the case may be, sub-clause in which such reference appears. Save where the context otherwise requires, words importing the singular number include the plural and vice versa.
THE FACILITY
2.1 LENDER TO MAKE ADVANCES: The Lender agrees to make Advances from time to time to the Borrower upon the terms and conditions of this Agreement.
2.2 BORROWER TO BORROW ADVANCES: The Borrower agrees to borrow up to the full amount of the Facility upon the terms and conditions of this Agreement. Accordingly the Borrower will cause the conditions referred to in Clause 3 to be satisfied and deliver to the Lender a notice requesting each Advance in the form required by Clause 4 on a date not later than the fifth Business Day before the Commitment Termination Date.
2.3 CANCELLATION: The Borrower may not cancel all or any part of the Facility. Any undrawn portion of the Facility shall be automatically canceled after the Commitment Termination Date.
2.4 PURPOSE: The Borrower will apply the proceeds of the Advances to refinance certain of its existing short and medium-term loans, but the Lender shall not be responsible for checking or confirming that the Borrower has done so.
CONDITIONS PRECEDENT
3.1 ADVANCES: The Lender shall not be obligated to make any Advance until the Lender has received each of the items listed in Schedule 2 and has found each of them satisfactory in form and substance.
3.2 NOTIFICATION: The Lender shall notify the Borrower after it has received all such items required under Clause 3.1.
DRAWDOWN
4. Each Advance shall be drawndown by the Borrower in a minimum amount of US$5,000,000 and thereabove in increments of US$5,000,000. Each Advance will be made by the Lender to the Borrower at its request if the following additional conditions are fulfilled:-
(a) DRAWDOWN REQUEST: not later than 11:00 a.m. (Seoul time) on the fifth
Business Day before the proposed date of the Advance, the Lender has
received from the Borrower a Notice of Drawdown signed by the Borrower
specifying (i) the proposed date (which must be a Business Day on or before
the Commitment Termination Date) of the Advance and (ii) details of the
bank(s) and the account(s) (which must be in New York City) to which the
Borrower wishes the proceeds of the Advance to be made available by the
Lender;
(b) REPRESENTATIONS ETC. CORRECT: all the representations and warranties in
Clause 12.1 have been complied with and would be correct in all respects if
repeated on the proposed date of the Advance by reference to the
circumstances then existing;
(c) NO EVENT OF DEFAULT ETC.: no Event of Default has occurred on or before the
proposed date of the Advance or will occur as a result of making the
Advance; and
(d) ADDITIONAL REQUIREMENTS: not later than 11:00 a.m. (Seoul time) on the
third Business Day before the proposed date of the Advance, the Lender has
received and found satisfactory such additional information, legal opinions
and/or other documents as it or counsel to the Lender may reasonably
request as a result of circumstances that have arisen since the signing of
this Agreement.
REPAYMENT ON MATURITY OR DEMAND
5. Each Advance shall be repaid by the Borrower in one lump sum on the Final Repayment Date or on such earlier date as the Lender may demand upon seven days written notice to the Borrower. Any repayment by the Borrower made upon demand of the Lender shall be accompanied by all interest accrued
thereon to the date of repayment and all other amounts payable by the Borrower to the Lender hereunder.
PREPAYMENT
6.1 OF LENDER: The Borrower may prepay the Advance in whole or in part on any Interest Payment Date in minimum amounts of US$5,000,000 and thereabove in integral multiples of US$5,000,000 upon one month's prior written notice to the Lender without premium or penalty.
6.2 MISCELLANEOUS. Any notice of prepayment given by the Borrower under this Agreement shall be irrevocable and shall oblige the Borrower to prepay in accordance with that notice. The Borrower may not prepay all or any part of the Advance except as expressly provided in this Agreement and may not reborrow any amount repaid or prepaid.
INTEREST
7.1 INTEREST PERIODS: Interest shall be calculated and payable on each Advance by reference to successive Interest Periods. If the Borrower avails itself of the Facility by way of a single lump-sum Advance on the date of this Agreement there shall be a single Interest Period commencing on the date of this Agreement and ending on the Final Repayment Date; otherwise, the first Interest Period relating to each Advance shall begin on the date of such Advance and end on the Commitment Termination Date and each subsequent Interest Period shall begin on the last day of the preceding Interest Period and shall be of one month's duration, provided that the final Interest Period shall end on the Final Repayment Date.
7.2 NORMAL INTEREST RATE: Subject to Clause 10, the rate of interest applicable to each Advance for a particular Interest Period shall be the Applicable Rate.
7.3 PAYMENT OF INTEREST: On the last day of each Interest Period, the Borrower shall pay to the Lender the interest accrued during that Interest Period on each Advance, calculated in accordance with Clause 18.1.
FEES
8.1 COMMITMENT FEE: The Borrower shall pay on the Commitment Termination Date a commitment fee of 0.375% per annum upon the daily undrawn portion of the Facility calculated on the basis of actual days elapsed from the date of this Agreement and a 360 day year.
8.2 OTHER FEES: The Borrower shall pay to the Lender such other fees as may be agreed between the Borrower and the Lender.
8.3 VAT/SALE GOODS AND SERVICES TAX: Any referred to in this Clause 8 is exclusive of any value added tax, sale of goods and services tax or any other tax which might be chargeable in connection with that fee. If any value added tax, sale of goods and services tax or other tax is so chargeable it shall be paid by the Borrower at the same time as it pays the relevant fee.
TAXES
9.1 PAYMENTS TO BE FREE AND CLEAR
(a) GROSS-UP: All payments to be made by the Obligors under this Agreement
shall be made free and clear of and without deduction for or on account of
tax unless such Obligor is required to make such a payment subject to the
deduction or withholding of tax, in which case the sum payable by such
Obligor in respect of which such deduction or withholding is required to be
made shall be increased to the extent necessary to ensure that, after the
making of such deduction or withholding, the person entitled to payment
receives and retains (free from any liability in respect of such deduction
or withholding) a net sum equal to the sum which it would have received and
so retained had no such deduction or withholding been made or required to
be made.
(b) FURTHER GROSS-UP: Without prejudice to the provisions of Sub-clause 9.1(a),
if the Lender or any Affiliate of the Lender is required to make any
payment on account of tax with respect to any amount payable under this
Agreement (not being a tax imposed on the net income of such person by the
jurisdiction in which it is incorporated, unless and except to the extent
that such tax is imposed on an amount deemed to be, but not actually,
received by such person (including without limitation, any sum received or
receivable under this Clause 9)) or any liability in respect of any such
payment is asserted, imposed, levied or assessed against such person, the
Borrower shall, upon demand of the Lender, promptly indemnify such person
against such payment or liability, together with any taxes, interest,
penalties and expense payable or incurred in connection therewith.
(c) CLAIMS: If the Lender intends to make a claim pursuant to Sub-Clause 9.1(b)
it shall notify the relevant Obligor of the event by reason of which it is
entitled to do so, provided that nothing herein shall require the Lender or
any Affiliate of the Lender to disclose any confidential information
relating to the organization of its tax affairs.
9.2 TAX RECEIPTS:
(a) NOTIFICATIONS: If at any time, the Borrower is required by law to make any
deduction or withholding from any sum payable by it under this Agreement
(or if thereafter there is any change in the rates at which or
the manner in which such deductions or withholdings are calculated), the
Borrower shall promptly notify the Lender;
(b) RECEIPT: If the Borrower makes any payment under this Agreement in respect
of which it is required to make any deduction or withholding, it shall pay
the full amount to be deducted or withheld to the relevant taxation or
other authority within the time allowed for such payment under applicable
law and shall deliver to the Lender, within thirty days after receipt
thereof from the applicable authority, an original receipt (or a certified
copy thereof) issued by such authority evidencing the payment to such
authority of all amounts so required to be deducted or withheld.
9.3 CONTINUING OBLIGATIONS: The obligations of the Borrower in Clause 9 shall survive the payments in full of the Advances.
CHANGE IN CIRCUMSTANCES
10.1 INCREASED COSTS: If, by reason of (i) any change in law or in its interpretation or administration and/or (ii) compliance with any request from or requirement of any central bank or other fiscal, monetary or other authority (including, without limitation, a request or requirement which affects the manner in which the Lender, any Affiliate of the Lender or its source of funds allocates capital resources to or for the Lender's obligations hereunder):
(a) the Lender or any Affiliate of the Lender incurs a cost as a result of the
Lender having entered into and/or performing its obligations under this
Agreement and/or assuming or maintaining the Advances under this Agreement;
(b) the Lender, any Affiliate of the Lender and/or its source of funds is
unable to obtain the rate of return on its overall capital which it would
have been able to obtain but for the Lender having entered into this
Agreement and/or performing its obligations hereunder and/or assuming or
maintaining the Advances;
(c) there is any incre ...
*End of Preview*
Click the 'Add to Cart' button to download the complete and formatted agreement.