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                                                                  EXECUTION VERSION                                    FIRST AMENDMENT                                            to                           LOAN AND SECURITY AGREEMENT         THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (“Amendment”),  dated as of July 8, 2019 (the “Amendment Date”), is among AMKOR TECHNOLOGY SINGAPORE  HOLDING PTE. LTD., a company incorporated under the laws of Singapore (together with other parties  executing  this  Amendment  as  a  borrower,  each  a  “Borrower”  and  collectively,  the  “Borrowers”),  the  undersigned Lenders (as defined by the Loan Agreement referenced below), and BANK OF AMERICA,  N.A., as administrative agent for the Lenders (in such capacity, the “Agent”).                                         RECITALS:         The  Borrowers,  the  Lenders  and  the  Agent  have  entered  into  the certain  Loan  and  Security  Agreement, dated as of July 13, 2018 (the “Loan Agreement”). The undersigned parties have agreed to  amend the Loan Agreement as provided hereinbelow.          NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and  other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the  undersigned parties hereby agree as follows:                                         ARTICLE I                                        Definitions         Section 1.1   Definitions.  Unless otherwise defined in this Amendment, terms defined by the  Loan Agreement, where used in this Amendment, shall have the same meanings in this Amendment as are  prescribed by the Loan Agreement.                                        ARTICLE II                                       Amendments         Section 2.1   Amendments to the Loan Agreement.  Effective as of the Amendment Date, the  Loan Agreement (including all Schedules and Exhibits thereto) is hereby amended as follows:                (a)    Section 1.1 of the Loan Agreement is hereby amended by adding the following        definitions thereto in alphabetical order:                       Acceptable  Factoring  Agreement:   a  written  agreement  (in  form  and                      substance satisfactory to Agent) between a Borrower and a third party,                      pursuant to which a Borrower has agreed to sell certain Accounts to such                      third party.                        Approved  Foreign  Debtors:  (i)  subsidiaries  or  Affiliates  of  ON                      Semiconductor  Corporation  and  Microchip  Technology  Incorporated                      which are formed under the laws of a jurisdiction other than (x) an Account                      Debtor Approved Country or (y) the U.S. or a state or territory thereof and                      (ii) NXP.                        Factored  Accounts:   Accounts  of  a  Borrower  which  have  been  sold or                      assigned to a third party pursuant to an Acceptable Factoring Agreement                      so long as:  (i)  at the time of the sale, no Default or Event of Default exists,                                               1  115607394  





 






                    (ii) Agent has issued a Factored Account Acknowledgement with respect                      to the Account and the purchaser of such Account, (iii) the sale price of                      each Account sold is greater than 85% of the Value of such Account, (iv)                      promptly upon the consummation of the sale, 100% of the Net Proceeds                      of such sale are directed by the applicable purchaser to a Deposit Account                      of Borrower, (v) such sale is made on a non-recourse basis except with                      respect to certain customary representations made by such Borrower with                      respect  to  the  applicable  Account  and  such  Borrower  shall  have no                      obligation to repurchase the Account subject to such sale (except for any                      customary repurchase obligations for the failure to satisfy the customary                      representations by Borrower with respect to such Account), repay to the                      applicable  purchaser  any  amounts  not  paid  by  the  applicable  Account                      Debtor or otherwise guaranty payment of such Account, (vi) the Accounts                      sold pursuant to the terms of an Acceptable Factoring Agreement shall be                      identified  as  Accounts  which  are  not  Eligible  Accounts  on  Borrowing                      Base  Reports  delivered  to  Agent  until  such  Accounts  are  no  longer                      outstanding,  and  (vii)  all  collections  from  Account  Debtors  on such                      Accounts are paid to segregated Deposit Accounts (into which no other                      sums are deposited other than such collections) which is subject to the Lien                      of the Person purchasing the Account.                        Factored Account Acknowledgement:  a written acknowledgement issued                      by Agent with respect to each Acceptable Factoring Agreement and each                      Factored Account pursuant to which Agent acknowledges and agrees that                      upon confirmation by Agent that 100% of the Net Proceeds of the sale of                      Factored Accounts have been received in a Deposit Account of Borrower,                      Agent’s  Lien  on  the  applicable  Factored  Account  is  automatically                      released.                       NXP: NXP Semiconductor, BV. and its subsidiaries or Affiliates which                      are  formed  under  the  laws  of  a  jurisdiction  other  than  (x)  an  Account                      Debtor Approved Country or (y) the U.S. or a state or territory thereof                       TSMC:  Taiwan  Semiconductor  Manufacturing  Company  and  its                      subsidiaries or Affiliates which are formed under the laws of a jurisdiction                      other than (x) an Account Debtor Approved Country or (y) the U.S. or a                      state or territory thereof.                (b)    The  definition  of  “Eligible  Accounts”  as  set  forth  in  Section  1.1  of  the  Loan        Agreement is hereby amended by replacing clause (a) thereof with the following:                       (a) (x) with respect to the Approved Foreign Debtors, it is unpaid for more                      than 30 days after the original due date, or more than 60 days after the                      original invoice date and (y) with respect to all other Account Debtors, it                      is unpaid for more than 60 days after the original due date, or more than                      90 days after the original invoice date,                (c)    The  definition  of  “Eligible  Accounts”  as  set  forth  in  Section  1.1  of  the  Loan        Agreement is hereby amended by (i) replacing the “or” at the end of clause (p) thereof with “;”; (ii)        replacing the “.” at the end of clause (q) thereof with “; or”; and (iii) adding the following as a new        clause (r) immediately after clause (p):                                              2  115607394  





 






                    (r) it has been purchased by a factor or other Person (including pursuant to                      an Acceptable Factoring Agreement) or it is subject to purchase (even if it                      has not yet been purchased) pursuant to a factoring arrangement or supply                      chain finance arrangement; provided, that effectively immediately upon                      the  sale  of  an  Account  pursuant  to  any  factoring  arrangement,  supply                      change  finance  arrangement  or  Acceptable  Factoring  Agreement,  the                      definition of Eligible Accounts shall exclude any such Account and the                      Accounts  Formula  Amount  shall  be  adjusted  accordingly  by  excluding                      such Accounts under the most recently delivered Borrowing Base Report.                  (d)    The following definitions as set forth in Section 1.1 of the Loan Agreement are        hereby amended and restated in their entirety to read as follows:                       Borrowing Base: on any date of determination, an amount equal to the                      lesser of (a) the aggregate amount of Revolver Commitments, or (b) the                      result of (i) up to 85.0% of the Value of Eligible Accounts and Eligible                      Foreign  Accounts  (other  than  Eligible  Foreign  Accounts  owed  by the                      Approved Foreign Debtors), plus (ii) up to 75.0% of the Value of Eligible                      Foreign  Accounts  owed  by  Approved  Foreign  Debtors,  minus  (iii)                      Availability Reserves.                       Eligible  Foreign  Account: an  Account  owing  to  a  Borrower  from  an                      Account  Debtor  that  is  organized  or  has  its  principal  offices  or  assets                      outside the United States or Canada, that (a) arises in the Ordinary Course                      of Business from the sale of goods or rendition of services, (b) is payable                      in Dollars, (c) is owing from an Account Debtor that is organized or has                      its principal offices  in an Account Debtor Approved Country, (d) is owing                      from  an  Account  Debtor  (other  than  TSMC  or  the  Approved  Foreign                      Debtors) that is organized or has its principal offices outside of an Account                      Debtor  Approved  Country;  provided that  such  Account  Debtor  is  a                      subsidiary  of  a  parent  company  that  is  organized  and  has  its  principal                      offices  within  the  United  States and  such  parent  company  has  an                      investment grade debt rating of BBB- or better by S&P or Baa3 or better                      by  Moody’s;  provided,  further  that  the  Accounts  owing  from  Account                      Debtors and their Affiliates under this clause (d) when aggregated with                      other  Accounts  owing  by  other  Account  Debtors  and  their  respective                      Affiliated under this clause (d) shall not exceed 20% of the sum  of  all                      Eligible Accounts and all Eligible Foreign Accounts, (e) is owing from an                      Account  Debtor  (including  TSMC  and  the  Approved  Foreign  Debtors)                      that is organized or has its principal offices outside of an Account Debtor                      Approved Country which is not deemed to be an Eligible Foreign Account                      under clause (d) above but is deemed to be an Eligible Foreign Account                      by  Agent  in  its  Permitted  Discretion;  provided  that  (x)  such  Account                      Debtor (other than NXP and TSMC) is a subsidiary of a parent company                      that is organized and has its principal offices within the United States and                      (y) in the case of the Approved Foreign Debtors, its parent company (and                      in the case of NXP and TSMC, each such company) has an investment                      grade debt rating of BB- or better by S&P or Ba3 or better by Moody’s;                      provided, further that the Accounts owing from Account Debtors and their                      Affiliates  under  this  clause  (e)  when  aggregated  with  other  Accounts                      owing by other Account Debtors and their respective Affiliated under this                                              3  115607394  





 






                    clause (e) shall not exceed 20% (or such lesser percentage as determined                      by Agent) of the sum of all Eligible Accounts and all Eligible Foreign                      Accounts and (f) meets all of the requirements in clause (a) through clause                      (p) of the definition of Eligible Accounts other than clause (g) thereof;                      provided, that the Accounts owed by the Approved Foreign Debtors and                      TSMC  shall  not  be  deemed  Eligible  Foreign  Accounts  at  any  time                      Availability is less than 50% of the Borrowing Base calculated after giving                      effect to the inclusion of such Accounts in the Borrowing Base.                       Excluded  Account:  any  Deposit  Account  (a)  that  is  used  for  the sole                      purpose of making payroll and withholding tax payments related thereto                      and other employee wage and benefits payments and accrued and unpaid                      employee compensation payments (including salaries, wages, benefits and                      expense reimbursements, 401(k) and other retirement plans and employee                      benefits, including rabbi trusts for deferred compensation and health care                      benefits); (b) that is used for the sole purpose of paying taxes, including                      sales taxes; (c) that is used solely as an escrow account, a fiduciary or a                      trust  account  or  otherwise  held  exclusively  for  the  benefit  of an                      unaffiliated third party; (d) that is used solely to receive collections from                      Account Debtors on Factored Accounts and which is subject to the Lien                      of the Person purchasing the Account, or (e) that is not otherwise subject                      to the provisions of this definition and, individually or together with any                      other Deposit Account, has an average daily balance for any fiscal month                      of less than $500,000 in the aggregate for all such Deposit Accounts under                      this clause (d).                       Permitted Liens:  the following Liens on property of any Obligor (a) Liens                      on  the  assets,  excluding  the  Collateral,  of  any  such  Obligor  securing                      Permitted Bank Debt that was permitted by the terms of this Agreement to                      be  incurred;  (b)  Liens  in  favor  of  any  Person  purchasing  a  Factored                      Account on Deposit Accounts which are established to receive collections                      on the applicable Factored Accounts and hold no other assets; (c) Liens in                      favor  of  an  Obligor;  provided  that  any  such  Lien  on  property  of any                      Borrower shall not extend to any Collateral; (d) Liens on property of a                      Person or any of its Subsidiaries existing at the time such Person is merged                      with or into or consolidated with any Obligor; provided, that such Liens                      were not incurred in contemplation of such merger or consolidation and                      do  not  extend  to  any  assets  which  constitute  Collateral;  (e)  Liens  on                      property  existing  at  the  time  of  acquisition  thereof  by  any  Obligor;                      provided  that  such  Liens  were  not  incurred  in  contemplation  of such                      acquisition and do not extend to any assets which constitute Collateral; (f)                      Liens to secure the performance of statutory obligations, letters of credit,                      surety or appeal bonds, performance bonds, or other obligations of a like                      nature incurred in the Ordinary Course of Business; (g) Liens to secure                      obligations in respect of Debt (including obligations under Capital Lease)                      permitted by Section 10.2.4(b)(iv) covering only the assets acquired with                      such  Debt,  including  accessions,  additions,  parts,  attachments,                      improvements,  fixtures,  leasehold  improvements,  or  proceeds,  if any,                      related thereto; (h) Liens existing on the effective date of any of the Senior                      Notes  Indentures,  excluding  Liens  on  Collateral;  (i)  Liens  for taxes,                      assessments, or governmental charges or claims that are not yet delinquent                                              4  115607394  





 






                    or that are being Properly Contested; (j) Liens imposed by law or arising                      by  operation  of  law,  including,  landlords’,  mechanics’,  carriers’,                      warehousemen’s, materialmen’s, suppliers’, and vendors’ Liens, Liens for                      master’s and crew’s wages and other similar Liens, in each case which are                      incurred in the Ordinary Course of Business for sums not yet delinquent                      or being Properly Contested; (k) Liens incurred or pledges and deposits                      made  in  the  Ordinary  Course  of  Business  in  connection  with  workers’                      compensation  and  unemployment  insurance,  health,  disability  or other                      employee  benefits  or  property,  casualty  or  liability  insurance or  self-                     insurance  and  other  types  of  social  security;  (l)  Liens  to  secure  any                      extension, renewal, refinancing, or refunding (or successive extensions,                      renewals, refinancings, or refundings), in whole or in part, of any Debt                      secured by Liens referred to in clause (d), clause (e), clause (g), and clause                      (h) of this definition; provided that such Liens do not extend to any other                      property of any Obligor and the principal amount of the Debt secured by                      such Lien is not increased; (m) judgment Liens not giving rise to an Event                      of Default so long as such Lien is adequately bonded and any appropriate                      legal  proceedings  that  may  have  been  initiated  for  the  review  of  such                      judgment, decree, or order shall not have been finally terminated or the                      period  within  which  such  proceedings  may  be  initiated  shall  not  have                      expired; (n) Liens on property of a Obligor other than Collateral securing                      obligations  of  an  Obligor  under  Hedging  Agreements  permitted  by                      Section 10.2.4(b)(vii) or any collateral for the Debt to which such Hedging                      Agreements  relate;  (o)  Liens  upon  specific  items  of  Inventory  or  other                      goods  and  proceeds  securing  such  Obligor’s  obligations  in  respect  of                      banker’s acceptances issued or credited for the account of such Obligor to                      facilitate the purchase, shipment, or storage of such inventory or goods;                      (p) Liens securing reimbursement obligations with respect to commercial                      letters of credit, banker’s acceptances or other sureties which encumber                      documents and other property relating to such letters of credit, banker’s                      acceptances or other sureties and products and proceeds thereof; (q) Liens                      arising out of consignment or similar arrangements for the sale of goods                      in  the  Ordinary  Course  of  Business;  (r)  Liens  in  favor  of  customs  or                      revenue authorities arising as a matter of law to secure payment of duties                      in connection with the importation of goods; (s) Liens on property of a                      Obligor, other than the Collateral, securing other Debt not exceeding the                      greater of (A) $200,000,000 and (B) an amount equal to 7.5% of Parent’s                      Total Tangible Assets determined as of Parent’s most recent fiscal quarter,                      at  any  time  outstanding;  (t)  Liens  securing  Permitted  Refinancing                      Indebtedness, provided that such Liens do not extend to any other property                      of such Obligor and the principal amount of such Debt secured by such                      Lien  is  not  increased;  (u)  Liens  on  the  Equity  Interests  of  Subsidiaries                      securing  obligations  of  Obligor  not  otherwise  prohibited  by  this                      Agreement; (v) survey exceptions, easements or reservations of, or rights                      of others for, licenses, rights-of-way, sewers, electric lines, telegraph and                      telephone lines and other similar purposes, or zoning or other restrictions                      as to the use of real property that were not incurred in connection with                      Debt and that do not, individually or in the aggregate, materially adversely                      affect  the  value  of  said  properties  or  materially  impair  their use  in  the                      operation  of  the  business  of  such Person;  (w)  any  provision  for the                      retention  of  title  to  an  asset  by  the  vendor  or  transferor  of  such  asset                                              5  115607394  





 






                    (including any lessor) which transaction is otherwise permitted under this                      Agreement; (x) leases, licenses, subleases or sublicenses granted to others                      in the Ordinary Course of Business that do not (A) interfere in any material                      respect with the business of any Obligor or (B) secure any Debt; (y) Liens                      (A)  of  a  collection  bank  arising  under  Section  4-210  of  the  Uniform                      Commercial Code on items in the course of collection or (B) in favor of a                      banking  institution  arising  as  a  matter  of  law  encumbering  deposits                      (including the right of set-off) and which are within the general parameters                      customary  in  the  banking  industry;  (z)  Liens  encumbering  reasonable                      customary initial deposits and margin deposits and similar Liens attaching                      to brokerage accounts incurred in the ordinary course of business and not                      for  speculative  purposes;  (aa)  Liens  solely  on  any  cash  earnest  money                      deposits made by any Obligor in connection with any letter of intent or                      purchase agreement permitted under this Agreement; (bb) Liens arising                      from  Uniform  Commercial  Code  (or  equivalent  statute)  financing                      statement filings regarding operating leases entered into in the ordinary                      course of business; and (cc) the Liens specified in Schedule 10.2.2.                (e)    Section 10.2.4(b)(xiii) of the Loan Agreement is hereby amended and restated in        its entirety to read as follows:                       (xiii)  to the extent characterized as Indebtedness, Indebtedness of the                      Borrowers  and/or  any  Subsidiary  relating  to  any  Acceptable  Factoring                      Agreement entered into in the Ordinary Course of Business;                (f)    Section 10.2.5(c) of the Loan Agreement is hereby amended and restated in its        entirety to read as follows:                       (c)    Notwithstanding  any  other  provision  of  this  Agreement  to  the                      contrary, no Obligor will enter into any Asset Sale or other sale, transfer,                      conveyance, or disposition of any asset or other property, in each such case                      if such Asset Sale, sale, transfer, conveyance, or disposition is of assets or                      other property which constitutes Collateral; provided that Obligors may (i)                      sell  Inventory  in  the  Ordinary  Course  of  Business,  (ii)  sell,  transfer,                      convey  or  dispose  of  property  and  assets,  including  Collateral,  among                      Borrowers,  (iii)  if  no  Event  of  Default  exists,  sell,  transfer,  convey,  or                      dispose  of  Collateral  consisting of  Equipment  and  Inventory  in an                      aggregate amount not in excess of $25,000,000 during the term  of this                      Agreement,  (iv)  make  Permitted  Investments,  (v)  grant  licenses of                      Intellectual  Property  in  the  Ordinary  Course  of  Business  or  on                      commercially  reasonable  terms,  provided  that  the  owner  of  any  such                      Intellectual  Property  which  is  the  subject  of  any  such  license retains                      ownership of such Intellectual Property and any such license granted is                      subject  to  Agent’s  Liens,  (vi)  (A)  sell,  transfer,  convey  or  dispose  of                      obsolete, surplus, discontinued, damaged, excess or worn out Equipment                      or other property that is no longer useful in an Obligor’s business or (B)                      allow  the  lapse  of  registered  patents,  trademarks  and  other  intellectual                      property  approved  by  Agent  or  the  termination  of  license  agreements                      related thereto, to the extent not economically desirable in the conduct of                      the  business  with  approval  by  Agent,  (vii)  dispose  of  cash  or  Cash                      Equivalents in the ordinary course of business, (viii) surrender or waive                                              6  115607394  





 






                    litigation rights or settle, release or surrender tort or other litigation claims                      of any kind if it is for the benefit of an Obligor (as determined in good                      faith by the board of directors of Parent), (ix) sell or otherwise dispose of                      any patents approved by Agent, and (x) sell Factored Accounts pursuant                      to an Acceptable Factoring Agreement.                (g)    Section 12.2.1(a) of the Loan Agreement is hereby amended and restated in its        entirety to read as follows:                       (a)    Secured  Parties  authorize  Agent  to  release  any  Lien  on  any                      Collateral (i) upon Full Payment of the Obligations; (ii) that is the subject                      of a disposition or Lien that Borrowers certify in writing is an Asset Sale                      permitted hereunder or a Permitted Lien entitled to priority over Agent’s                      Liens (and Agent may rely conclusively on such certificate without further                      inquiry); (iii) that does not constitute a material part of the Collateral; and                      (iv)  subject  to Section  14.1,  with  the  consent  of  Required  Lenders.                       Secured Parties authorize the automatic release of any Lien on Collateral                      which  constitutes  a  Factored  Account  sold  pursuant  to  an  Acceptable                      Factoring Agreement, upon the applicable sale thereof and confirmation                      by Agent that the proceeds of such sale are received by Borrower.  Secured                      Parties authorize Agent to subordinate its Liens to any Lien entitled to                      priority hereunder.  Agent has no obligation to assure that any Collateral                      exists or is owned by an Obligor, or is cared for, protected or insured, nor                      to  assure  that  Agent’s  Liens  have  been  properly  created,  perfected  or                      enforced, or are entitled to any particular priority, nor to exercise any duty                      of care with respect to any Collateral.  Agent shall execute and deliver to                      Borrowers releases and other instruments as may be necessary to terminate                      Agent’s Lien in the Collateral pursuant to clauses (i), (ii), (iii) or (iv) of                      this Section  12.2.1  and  deliver  to  Borrowers,  or  such  other  Person  as                      Borrowers may reasonably request of Agent, any Collateral, if any, that is                      held in Agent’s possession.                                        ARTICLE III                                        Conditions         Section 3.1   Conditions  Precedent.   The  effectiveness  of  this  Amendment  is  subject  to  the  receipt by Agent of (i) a fully executed copy of this Amendment, (ii) a fully executed amendment to the  Singapore  Debenture  and  (iii)  each  other  agreement,  document,  certificate  or  instrument  reasonably  requested by the Agent in connection with this Amendment, in each case in form and substance satisfactory  to the Agent;                                        ARTICLE IV                         Ratifications, Representations, and Warranties         Section 4.1   Ratifications.  The terms and provisions set forth in this Amendment (including  without limitation as incorporated pursuant to Section 2.1) shall modify and supersede all inconsistent terms  and provisions set forth in the Loan Agreement and the other Loan Documents and, except as expressly  modified and superseded by this Amendment, the terms and provisions of the Loan Agreement and the  other Loan Documents are ratified and confirmed and shall continue in full force and effect. The Borrowers,  the Agent, and the Lenders agree that the Loan Agreement and the other Loan Documents, as amended  hereby, shall continue to be legal, valid, binding, and enforceable in accordance with their respective terms.                                              7  115607394  





 






      Section 4.2   Representations and Warranties.  The Borrowers hereby represent and warrant to  the Agent and the Lenders that (a) the execution, delivery, and performance of this Amendment and any  and all other Loan Documents executed and/or delivered in connection herewith have been authorized by  all requisite action on the part of the Borrowers and will not violate the certificate of incorporation or bylaws  of any Borrower, (b) the representations and warranties of the Borrowers contained in the Loan Agreement,  as amended hereby, and any other Loan Document are true and correct in all material respects on and as of  the Amendment Date as though made on and as of the Amendment Date (except (i) to the extent that such  representations and warranties were expressly made only in reference to a specific date and (ii) to the extent  that such representations and warranties contain a materiality or Material Adverse Effect qualifier, in which  case such representations and warranties shall be true and correct in all respects), and (c) after giving effect  to this Amendment, no Default or Event of Default has occurred and is continuing.                                         ARTICLE V                                     Other Agreements         Section 5.1   Survival of Representations and Warranties.  All representations and warranties  made  in  this  Amendment  or  any  other  Loan  Document  including  any  Loan  Document  furnished  in  connection with this Amendment shall survive the execution and delivery of this Amendment and the other  Loan Documents, and no investigation by the Agent or any Lender shall affect the representations and  warranties or the right of the Agent or any Lender to rely upon them.          Section 5.2  Reference  to  Loan  Agreement  and Other  Loan  Documents.   Each  of the  Loan  Documents, including the Loan Agreement and any and all other agreements, documents, or instruments  now or hereafter executed and delivered pursuant to the terms hereof or pursuant to the terms of the Loan  Agreement and the other Loan Documents as amended hereby, are hereby amended so that any reference  in such Loan Documents to the Loan Agreement or any other Loan Document shall mean a reference to the  Loan Agreement and the other Loan Documents as amended hereby.          Section 5.3  Severability.   Any  provision  in  this  Amendment  that  is  held  to be  inoperative,  unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or  invalid without affecting the remaining provisions in that jurisdiction or the operation, enforceability, or  validity of that provision in any other jurisdiction, and to this end the provisions of this Amendment are  declared to be severable.          Section 5.4  Reserved.           Section 5.5   Applicable  Law.   THIS  AMENDMENT  SHALL  BE  GOVERNED  BY  THE  LAWS  OF  THE  STATE  OF  NEW  YORK,  PROVIDED  THAT  IN  THE  EVENT  ANY  COURT  DETERMINES  THAT  NEW  YORK  LAW  DOES  NOT  GOVERN  THE  LAWS  OF  THE  STATE  OF  TEXAS SHALL GOVERN, IN ANY SUCH CASE WITHOUT GIVING EFFECT TO ANY CONFLICT  OF LAW PRINCIPLES (BUT GIVING EFFECT TO FEDERAL LAWS RELATING TO NATIONAL  BANKS).          Section 5.6  Successors and Assigns.  This Amendment is binding upon and shall inure to the  benefit of the Borrowers, the Agent, and the Lenders and their respective successors and assigns, except  the Borrowers may not assign or transfer any of their respective rights or obligations hereunder without the  prior written consent of the Lenders and any assignment by the Lenders shall be made only in accordance  with the terms of the Loan Agreement.          Section 5.7  Effect of Amendment.  No consent or waiver, express or implied, by the Agent or  any Lender to or for any breach of or deviation from any covenant, condition, or duty by the Borrowers                                              8  115607394  





 






shall be deemed a consent or waiver to or of any other breach of the same or any other covenant, condition,  or duty. The Loan Agreement, as amended by this Amendment, and each of the other Loan Documents to  which the Borrowers are a party remain in full force and effect and are hereby ratified and confirmed.          Section 5.8  Further  Assurances.   The  Borrowers  shall  execute  and  deliver,  or  cause  to  be  executed and delivered, to the Agent such documents and agreements, and shall take or cause to be taken  such  actions  as  the  Agent  may,  from  time  to  time,  reasonably  request  to  carry  out  the  terms  of  this  Amendment and the other Loan Documents.          Section 5.9  Headings.  The headings, captions, and arrangements used in this Amendment are  for convenience only and shall not affect the interpretation of this Amendment.          Section 5.10 Counterparts.  This Amendment may be executed in any number of counterparts,  all of which taken together shall constitute one agreement, and any of the parties hereto may execute this  Amendment by signing any such counterpart and a telecopy of any such executed signature page shall be  valid as an original. This Amendment shall be effective when it has been executed by the Borrowers, the  Agent, and the Lenders.          Section 5.11 Entire Agreement.  THIS AMENDMENT AND ALL OTHER INSTRUMENTS,  DOCUMENTS, AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS  AMENDMENT EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO  AND    SUPERSEDE      ANY     AND    ALL    PRIOR    COMMITMENTS,       AGREEMENTS,  REPRESENTATIONS,  AND  UNDERSTANDINGS,  WHETHER  WRITTEN  OR  ORAL,  RELATING  TO THIS AMENDMENT, AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF  PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF  THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO.          Section 5.12 Amendment as a Loan Document.  This Amendment constitutes a Loan Document.                                                                             The remainder of this page is blank.                                               9  115607394