Exhibit 4.44
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CHIPPAC INTERNATIONAL COMPANY LIMITED,
Issuer
CHIPPAC, INC.,
Guarantor
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SECOND SUPPLEMENTAL INDENTURE
Dated as of October 7, 2004
Supplementing that certain
Indenture Dated as of July 29, 1999
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U.S. BANK NATIONAL ASSOCIATION
as Trustee
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This SECOND SUPPLEMENTAL INDENTURE, dated as of October 7, 2004 (the
"Second Supplemental Indenture"), between ChipPAC International Company Limited,
a British Virgin Islands corporation (the "Issuer"), ChipPAC, Inc., a Delaware
corporation (the "Company") and U.S. Bank National Association (as successor to
Firstar Bank of Minnesota, N.A., as trustee (the "Trustee"), amends and
supplements the Indenture (as defined below).
RECITALS:
WHEREAS, ChipPAC International Limited (the "Predecessor Issuer"), ChipPAC
Merger Corp. ("MergerCo") and the Trustee entered into an indenture dated as of
July 29, 1999 (the "Original Indenture") relating to the Predecessor Issuer's
12.75% Senior Subordinated Notes due 2009 (the "Notes"); and
WHEREAS, the Issuer is the successor by merger to the Predecessor Issuer and the
Company is the successor by merger to MergerCo;
WHEREAS, the Issuer, the Company and the Trustee entered into the First
Supplemental Indenture, dated as of August 5, 1999 (the "First Supplemental
Indenture" and, together with the Original Indenture and this Second
Supplemental Indenture, the "Indenture") pursuant to which (i) the Issuer became
party to the Indenture and assumed all of the liabilities and obligations of the
Predecessor Issuer thereunder and (ii) the Company became party to the Indenture
and assumed all of the liabilities and obligations of MergerCo thereunder;
WHEREAS, Section 902 of the Indenture provides that the Issuer, the Company and
the Trustee, with the consent of Holders of at least a majority in principal
amount of the Notes, may amend the Indenture;
WHEREAS, the Issuer has offered to purchase for cash all of the outstanding
Notes upon the terms and subject to the conditions set forth in the Offer to
Purchase and Consent Solicitation Statement dated September 3, 2004 (the
"Statement"), as the same may be amended, supplemented or modified, and in the
accompanying Letter of Transmittal (the "Letter of Transmittal", and, together
with the Statement, the "Offer");
WHEREAS, the Offer is conditioned upon, among other things, the proposed
amendments (the "Proposed Amendments") to the Indenture set forth herein having
been approved by at least a majority in aggregate principal amount of the
outstanding Notes (and a supplemental indenture in respect thereof having been
executed and delivered) with the effectiveness of such Proposed Amendments with
respect to the Notes being subject to the acceptance for payment by the Issuer
of the Notes representing a majority in aggregate principal amount of the
outstanding Notes pursuant to the Offer;
WHEREAS, the Issuer has received and accepted the requisite consents to effect
the Proposed Amendments under the Indenture and, concurrently herewith, has
delivered such consents and the payments for such consents, to the Trustee;
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WHEREAS, each of the Issuer and the Company has duly authorized the execution
and delivery of this Second Supplemental Indenture, and all things necessary
have been done to make this Second Supplemental Indenture a valid agreement of
the Issuer and the Company in accordance with its terms;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is mutually covenanted and
agreed as follows:
ARTICLE ONE. DEFINITIONS
SECTION 101. Definitions. Each capitalized term that is used herein but not
defined in this Second Supplemental Indenture shall the respective meanings
assigned to such terms in the Indenture.
ARTICLE TWO. AMENDMENTS
SECTION 201. Amendment of Section 1.01. Effective upon, and subject only to, the
Acceptance, the provisions of Section 1.01 of the Indenture are amended by
deleting the following definitions: "Additional Assets", "Advisory Agreement",
"Attributable Debt", "Average Life", "Bain", "Banks", "Capital Expenditure
Facility", "Capital Lease Obligations", "Change of Control", "Consolidated
Coverage Ratio", "Consolidated Interest Expense", "Consolidated Net Income",
"Currency Agreement", "Disqualified Stock", "EBITDA", "Equity Offering",
"Hedging Obligations", "Hyundai Earn-Out", "Hyundai Electronics", "Hyundai
Preferred Stock", "Incur" , "Indebtedness", "Intel", "Intel Preferred Stock",
"Interest Rate Agreement", "Investments", "Lien", "Net Available Cash", "Net
Cash Proceeds", "Permitted Holder", "Permitted Investment", "Principal", "Pro
Forma Cost Savings", "Recapitalization", "Recapitalization Closing Date",
"Refinancing Indebtedness", "Registration Rights Agreement", "Related Business",
"Restricted Payment", "Restricted Subsidiary", "Revolving Credit Facility",
"Sale/Leaseback Transaction", "Secured Indebtedness", "Shareholders Agreement",
"Significant Subsidiary", "Subordinated Obligations", "SXI Group LLC", "SXI
Holders", "Temporary Cash Investments" , "Term Loan Facilities", "Total Assets",
"Unrestricted Subsidiary" and "U.S. Dollar Equivalent".
SECTION 202. Amendment of Section 1.02. The provisions of Section 1.02 of the
Indenture are amended by deleting the following definitions: "Affiliate
Transaction", "Offer Amount" and "Offer Period".
SECTION 203. Amendment of Section 4.02. The the provisions of Section 4.02 of
the Indenture are amended by deleting the text of such section in its entirety
and inserting in lieu thereof the phrase "[Intentionally omitted.]".
SECTION 204. Amendment of Section 4.03. The the provisions of Section 4.03 of
the Indenture are amended by deleting the text of such section in its entirety
and inserting in lieu thereof the phrase "[Intentionally omitted.]".
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SECTION 205. Amendment of Section 4.04. The the provisions of Section 4.04 of
the Indenture are amended by deleting the text of such section in its entirety
and inserting in lieu thereof the phrase "[Intentionally omitted.]".
SECTION 206. Amendment of Section 4.05. The provisions of Section 4.05 of the
Indenture are amended by deleting the text of such section in its entirety and
inserting in lieu thereof the phrase "[Intentionally omitted.]".
SECTION 207. Amendment of Section 4.06. The provisions of Section 4.06 of the
Indenture are amended by deleting the text of such section in its entirety and
inserting in lieu thereof the phrase "[Intentionally omitted.]".
SECTION 208. Amendment of Section 4.07. The provisions of Section 4.07 of the
Indenture are amended by deleting the text of such section in its entirety and
inserting in lieu thereof the phrase "[Intentionally omitted.]".
SECTION 209. Amendment of Section 4.08. The provisions of Section 4.08 of the
Indenture are amended by deleting the text of such section in its entirety and
inserting in lieu thereof the phrase "[Intentionally omitted.]".
SECTION 210. Amendment of Section 4.09. The provisions of Section 4.09 of the
Indenture are amended by deleting the text of such section in its entirety and
inserting in lieu thereof the phrase "[Intentionally omitted.]".
SECTION 211. Amendment of Section 4.10. The provisions of Section 4.10 of the
Indenture are amended by deleting the text of such section in its entirety and
inserting in lieu thereof the phrase "[Intentionally omitted.]".
SECTION 212. Amendment of Section 4.11. The provisions of Section 4.11 of the
Indenture are amended by deleting the text of such section in its entirety and
inserting in lieu thereof the phrase "[Intentionally omitted.]".
SECTION 213. Amendment of Section 6.01. The provisions of Section 6.01 of the
Indenture are amended by deleting (a) the text of each of subsections 6.01(3),
(4), (5), (6), (7), (8), (9) and (10) thereof in its entirety and inserting in
lieu thereof the phrase "[Intentionally omitted]" and (b) the text of each of
the third and fourth paragraphs following such subsections shall be deleted in
its entirety.
ARTICLE THREE. MISCELLANEOUS
SECTION 301. Reference to and Effect on the Indenture. This Second Supplemental
Indenture shall be construed as supplemental to the Indenture and all the terms
and conditions of this Second Supplemental Indenture shall be deemed to be part
of the terms and conditions of the Indenture. Except as set forth herein, the
Indenture (including the First Supplemental Indenture)
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heretofore executed and delivered is hereby ratified, approved and confirmed.
This Second Supplemental Indenture is subject to the provisions of the Trust
Indenture Act, and shall, to the extent applicable, be governed by such
provisions.
SECTION 302. Supplemental Indenture May be Executed in Counterparts. This
instrument may be executed in any number of counterparts, each of which shall be
an original; but such counterparts shall together constitute but one and the
same instrument.
SECTION 303. Effect of Headings. The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
SECTION 304. Separability. In case any one or more of the provisions contained
in this Second Supplemental Indenture shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not effect any other provisions of this Supplemental
Indenture or of the Indenture, but this Second Supplemental Indenture and the
Indenture shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
SECTION 305. Governing Law. This First Supplemental Indenture shall be governed
by, and construed in accordance with, the laws of the State of New York
excluding (to the greatest extent permissible by law) any rule of law that would
cause the application of the laws of any jurisdiction other than the State of
New York.
[Rest of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed as of the day and year first above
written.
CHIPPAC INTERNATIONAL COMPANY
LIMITED, as Issuer
By: /s/ Pearlyne Wang
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Name: Pearlyne Wang
Title: President, CEO & CFO
CHIPPAC, INC., as Guarantor
By: /s/ Michael G. Potter
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Name: Michael G. Potter
Title: Vice President & Treasurer
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ Richard Prokosch
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Name: Richard Prokosch
Title: Vice President
[Signature Page to Second Supplemental
Indenture for 12.75% Notes]