EXHIBIT 10.7
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT, dated as of October 27, 2004, is
entered into among CITICORP NORTH AMERICA, INC. ("CNAI"), as administrative
agent and collateral agent for the Senior Parties (in such capacity, the "Senior
Agent"), CNAI, as administrative agent for the Junior Parties (in such capacity,
the "Junior Administrative Agent"), CNAI, as collateral agent for the Junior
Parties (in such capacity, the "Junior Collateral Agent"), AMKOR TECHNOLOGY,
INC. (the "Borrower") and each other Loan Party party hereto.
W I T N E S S E T H :
WHEREAS, the Borrower has entered into a revolving credit agreement,
dated as of June 29, 2004, as amended by Amendment No. 1 thereto dated as of the
date hereof, among the Borrower, the Lenders and Issuers as defined therein, the
Senior Agent, Citigroup Global Markets Inc. ("CGMI"), as sole lead arranger,
JPMorgan Chase Bank ("JPMC"), as syndication agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital
Corporation ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), as documentation agent, ▇.▇. ▇▇▇▇▇▇ Securities
Inc. ("JPM Securities") and ▇▇▇▇▇▇▇ ▇▇▇▇▇, as arrangers (as such agreement may
be amended, restated, supplemented, renewed or otherwise modified from time to
time, together with any other agreements pursuant to which any of the
indebtedness, commitments, obligations, costs, expenses, fees, reimbursements,
indemnities or other obligations payable or owing thereunder may be refinanced,
restructured, renewed, extended, increased, refunded or replaced, the "Senior
Credit Agreement"); and
WHEREAS, the Borrower has entered into a term loan credit agreement,
dated as of the date hereof, among the Borrower, the Lenders as defined therein,
the Junior Administrative Agent, the Junior Collateral Agent, CGMI, as sole lead
arranger, ▇▇▇▇▇▇▇ ▇▇▇▇▇, as syndication agent, JPMC, as documentation agent, and
CGMI, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and JPM Securities, as joint bookrunners (as such agreement
may be amended, restated, supplemented, renewed or otherwise modified from time
to time, together with any other agreements pursuant to which any of the
indebtedness, commitments, obligations, costs, expenses, fees, reimbursements,
indemnities or other obligations payable or owing thereunder may be refinanced,
restructured, renewed, extended, increased, refunded or replaced, the "Junior
Credit Agreement"); and
WHEREAS, it is a condition precedent to the effectiveness of
Amendment No. 1 to the Senior Credit Agreement, and to the Closing Date
occurring pursuant to (and as defined in) the Junior Credit Agreement, that the
parties hereto shall have entered into this Agreement;
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and obligations herein set forth and for other good and valuable
consideration, the adequacy and receipt of which are hereby acknowledged, and in
reliance upon the representations, warranties and covenants herein contained,
the parties hereto, intending to be legally bound, hereby agree as follows:
SECTION 1. Definitions
1.1 Definitions
(a) As used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
"Adequate Protection" means "adequate protection" under sections
361, 362, 363 or 364 of the Bankruptcy Code.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling or that is controlled by or is under common
control with such Person, each officer, director, general partner or
joint-venturer of such Person, and each Person that is the beneficial owner of
10% or more of any class of Voting Stock of such Person. For the purposes of
this definition, "control" means the possession of the power to direct or cause
the direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agents" means the Senior Agent and the Junior Agents.
"Agreement" means this Intercreditor Agreement.
"Bankruptcy Code" means title 11, United States Code.
"Bankruptcy Law" means the Bankruptcy Code, or any similar federal,
state or foreign Requirement of Law for the relief of debtors or any
arrangement, reorganization, insolvency, moratorium assignment for the benefit
of creditors, any other marshalling of the assets and liabilities of the
Borrower or any other Loan Party or any similar law relating to or affecting the
enforcement of creditors' rights generally.
"Capital Lease" means, with respect to any Person, any lease of, or
other arrangement conveying the right to use, property by such Person as lessee
that would be accounted for as a capital lease on a balance sheet of such Person
prepared in conformity with GAAP.
"Cash Management Document" means any certificate, agreement or other
document executed by any Loan Party in respect of the Cash Management
Obligations of any Loan Party.
"Cash Management Obligation" means, as applied to any Person, any
direct or indirect liability, contingent or otherwise, of such Person in respect
of cash management services (including treasury, depository, overdraft, credit
or debit card, electronic funds transfer and other cash management arrangements)
provided by any Senior Party or any Affiliate of any of them, including
obligations for the payment of fees, interest, charges, expenses, attorneys'
fees and disbursements in connection therewith.
"Collateral" means, all property and interests in property and
proceeds thereof now owned or hereafter acquired by the Borrower or any other
Loan Party in or upon which a Lien is granted under any Collateral Document.
"Collateral Documents" means this Agreement, the Senior Collateral
Documents and the Junior Collateral Documents.
"Collateral Agents" means each of the Senior Agent and the Junior
Collateral Agent.
"Contractual Obligation" of any Person means any obligation,
agreement, undertaking or similar provision of any security issued by such
Person or of any agreement
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undertaking, contract, lease, indenture, mortgage, deed of trust or other
instrument (excluding a Loan Document) to which such Person is a party or by
which it or any of its property is bound or to which any of its property is
subject.
"Governmental Authority" means any nation, sovereign or government,
any state or other political subdivision thereof and any entity or authority
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, including any central bank or stock
exchange.
"Hedging Contracts" means all interest rate swap agreements,
interest rate cap agreements, interest rate collar agreements, interest rate
insurance, foreign exchange contracts, currency swap or option agreements,
forward contracts, commodity swap, purchase or option agreements, other
commodity price hedging arrangements and all other similar non-speculative
agreements or arrangements designed to alter the risks of any Person arising
from fluctuations in interest rates, currency values or commodity prices.
"Insolvency or Liquidation Proceeding" means, collectively, (a) any
voluntary or involuntary case or proceeding under the Bankruptcy Law with
respect to the Borrower or any other Loan Party, (b) any other voluntary or
involuntary insolvency, reorganization or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding
with respect to the Borrower or any other Loan Party or with respect to any of
their respective assets, (c) any liquidation, dissolution, reorganization or
winding up of the Borrower or any Loan Party, whether voluntary or involuntary
and whether or not involving insolvency or bankruptcy and (d) any assignment for
the benefit of creditors or any other marshaling of assets and liabilities of
the Borrower or any other Loan Party.
"Junior Administrative Agent" shall include, in addition to the
Junior Administrative Agent referred to in the recitals hereto, any successors
of and assigns to the Junior Administrative Agent permitted pursuant to Section
7.6 of the Junior Credit Agreement.
"Junior Agent" means each of the Junior Administrative Agent and the
Junior Collateral Agent.
"Junior Collateral Agent" shall include, in addition to the Junior
Collateral Agent referred to in the recitals hereto, any successors of and
assigns to the Junior Collateral Agent permitted pursuant to Section 7.6 of the
Junior Credit Agreement.
"Junior Collateral Documents" means the "Collateral Documents" as
defined in the Junior Credit Agreement and any other document or instrument
pursuant to which a Lien is granted securing the Junior Secured Obligations, as
the same may be amended, renewed, extended, supplemented or modified from time
to time.
"Junior Loan Document" means, with respect to any Junior Secured
Obligation, any provision pertaining to such Junior Secured Obligation in any
"Loan Document" as defined in the Junior Credit Agreement, or any other
document, instrument or certificate evidencing or delivered in connection with
such Junior Secured Obligation, including the Junior Collateral Documents.
"Junior Party" means each of the Junior Agents, each "Lender" as
defined in the Junior Credit Agreement and each other holder of a Junior Secured
Obligation.
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"Junior Secured Obligations" means (a) the "Obligations" (under and
as defined in the Junior Credit Agreement) and (b) all other Secured Obligations
of a Junior Party (in its capacity as such) under any Junior Loan Document
(including any advance or extension of credit to any Loan Party and any payment
to any other Person other than a Loan Party to acquire, satisfy or otherwise
discharge any claim for the purpose of maintaining, preserving or protecting any
Collateral).
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, charge, deposit arrangement, encumbrance, lien (statutory or other),
security interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever intended to secure
payment of any indebtedness or the performance of any other obligation,
including any conditional sale or other title retention agreement, the interest
of a lessor under a Capital Lease and any financing lease having substantially
the same economic effect as any of the foregoing (but excluding the interest of
a lessor under an operating lease).
"Loan Document" means each Junior Loan Document and Senior Loan
Document.
"Loan Party" means each of the Borrower each Subsidiary of the
Borrower that is a party hereto or to any Loan Document.
"paid in full" and "payment in full" means, with respect to any
Secured Obligation, the occurrence of all of the foregoing, (a) with respect to
such Secured Obligations other than (i) contingent indemnification obligations,
obligations under Hedging Contracts and Cash Management Obligations not then due
and payable and (ii) to the extent covered by clause (b) below, obligations with
respect to undrawn Letters of Credit, payment in full thereof in cash (or
otherwise to the written satisfaction of the Secured Parties owed such Secured
Obligations), (b) with respect to any undrawn letter of credit issued pursuant
to the Senior Credit Agreement, the obligations under which are included in such
Secured Obligations, (i) the cancellation thereof and payment in full of all
resulting Secured Obligations pursuant to clause (a) above or (ii) the receipt
of cash collateral (or a backstop letter of credit in respect thereof on terms
acceptable to the applicable Issuer (as defined in the Senior Credit Agreement)
of any letters of credit pursuant to the Senior Credit Agreement, and the Senior
Agent ) in an amount at least equal to 105% of the Secured Obligations for such
Letter of Credit and (c) termination of all credit facility commitments and all
other obligations of the Secured Parties in respect of all credit facilities
under the Loan Documents.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, estate, trust, limited liability company,
unincorporated association, joint venture or other entity or a Governmental
Authority.
"Recovery" has the meaning set forth in Section 6.4 (Preference
Issues).
"Requirement of Law" means, with respect to any Person, the common
law and all federal, state, local and foreign laws, treaties, rules and
regulations, orders, judgments, decrees and other determinations of,
concessions, grants, franchises, licenses and other Contractual Obligations
with, any Governmental Authority or arbitrator, applicable to or binding upon
such Person or any of its property or to which such Person or any of its
property is subject.
"Secured Obligations" means the obligations of any Loan Party
pursuant to the Senior Loan Documents or the Junior Loan Documents as
applicable.
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"Senior Agent" shall include, in addition to the Senior Agent
referred to in the recitals hereto, any successors of and assigns to the Senior
Agent permitted pursuant to Section 9.7 of the Senior Credit Agreement.
"Senior Pledge and Security Agreement" means the "Pledge and
Security Agreement" as defined in the Senior Credit Agreement.
"Senior Secured Obligations" means (a) the "Obligations" (under and
as defined in the Senior Credit Agreement), and all extensions of credit under
any financing under section 364 of the Bankruptcy Code or any arrangement for
use of cash collateral under section 363 of the Bankruptcy Code the terms of
which are consented to by the Senior Agent in its capacity as such, (b) all
other Secured Obligations of a Senior Party (in its capacity as such) under any
Senior Loan Document (including any advance or extension of credit to any Loan
Party and any payment to any other Person other than a Loan Party to acquire,
satisfy or otherwise discharge any claim for the purpose of maintaining,
preserving or protecting any Collateral), (c) any Cash Management Obligation,
any obligation under any Hedging Contract and (d) all interest on any of the
obligations in clauses (a), (b) and (c) above accrued or accruing (or which
would, absent the commencement of an Insolvency or Liquidation Proceeding,
accrue) after the commencement of an Insolvency or Liquidation Proceeding in
accordance with and at the rate specified in the Senior Credit Agreement whether
or not the claim for such interest is allowed as a claim in such Insolvency or
Liquidation Proceeding; provided, however that the aggregate principal amount of
"Senior Secured Obligations" incurred pursuant to clauses (a) or (b) above shall
not, as of the date of any incurrence thereof, exceed the maximum aggregate
principal amount which may be incurred and secured on the Collateral on such
date as "Permitted Bank Debt" pursuant to, and as defined in, the Junior Credit
Agreement (as such agreement is in effect on the date hereof without giving
effect to any amendment or other modification thereof following the date of this
Agreement). To the extent any payment with respect to the Senior Secured
Obligations (whether by or on behalf of any Loan Party, as proceeds of security,
enforcement of any right of setoff or otherwise) is declared to be fraudulent or
preferential in any respect, set aside or required to be paid to a debtor in
possession, trustee, receiver or similar Person, then the obligation or part
thereof originally intended to be satisfied shall be deemed to be reinstated and
outstanding as if such payment had not occurred.
"Senior Collateral Documents" means the "Collateral Documents" as
defined in the Senior Credit Agreement, including the Senior Pledge and Security
Agreement, and any other document or instrument pursuant to which a Lien is
granted securing the Senior Secured Obligations, as the same may be amended,
renewed, extended, supplemented or modified from time to time.
"Senior Loan Document" means, with respect to any Senior Secured
Obligation, any provision pertaining to such Senior Secured Obligation in any
"Loan Document" as defined in the Senior Credit Agreement, or any other
document, instrument or certificate evidencing or delivered in connection with
such Senior Secured Obligation, including the Senior Collateral Documents.
"Senior Party" means each of the Senior Agent, each "Lender" and
each "Issuer" as defined in the Senior Credit Agreement and each other holder of
a Senior Secured Obligation.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company or other business entity of which an
aggregate of 50% or more of the
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outstanding Voting Stock is, at the time, directly or indirectly, owned or
controlled by such Person or one or more Subsidiaries of such Person.
Voting Stock" means capital stock (whether denominated as common
stock or preferred stock), beneficial, partnership or membership interests,
participations or other equivalents (regardless of how designated) of any Person
having ordinary power to vote in the election of members of the board of
directors, managers, trustees or other controlling Persons, of such Person
(irrespective of whether, at the time, Stock of any other class or classes of
such entity shall have or might have voting power by reason of the happening of
any contingency).
"Uniform Commercial Code" or "UCC" means the Uniform Commercial Code
of the State of New York, as amended.
1.2 Certain Other Terms
(a) The terms "herein," "hereof," "hereto" and "hereunder" and
similar terms refer to this Agreement as a whole and not to any particular
Article, Section, subsection or clause in this Agreement.
(b) References herein to an Annex, Schedule, Article, Section,
subsection or clause refer to the appropriate Annex or Schedule to, or Article,
Section, subsection or clause in this Agreement.
(c) Where the context requires, provisions relating to any
Collateral, when used in relation to any Loan Party, shall refer to such Loan
Party's Collateral or any relevant part thereof.
(d) Any reference in this Agreement to a Loan Document shall include
all exhibits and schedules thereto, and, unless specifically stated otherwise
all amendments, restatements, supplements or other modifications thereto, and as
the same may be in effect at any time such reference becomes operative.
(e) The term "including" means "including without limitation" except
when used in the computation of time periods.
(f) References in this Agreement to any statute shall be to such
statute as amended or modified and in effect from time to time.
SECTION 2. LIEN PRIORITIES
2.1 Subordination
Notwithstanding the date, manner or order of grant, attachment or
perfection of any Lien securing any Junior Secured Obligation or of any Lien
securing any Senior Secured Obligation and notwithstanding any provision of the
UCC or any applicable Requirement of Law or the Loan Documents or any other
circumstance whatsoever, each Loan Party and each Agent, for itself and on
behalf of the Secured Parties it represents, agrees as follows: (a) any Lien on
the Collateral securing any Senior Secured Obligation, whether now or hereafter
existing and regardless of how acquired or created, shall be senior and prior to
any Lien on the Collateral securing any Junior Secured Obligation and (b) any
Lien on the Collateral securing any Junior Secured Obligation, whether now or
hereafter existing and regardless of how acquired or created, whether by grant,
statute, operation of law, subrogation or otherwise, shall be junior and
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subordinate in all respects to all Liens on the Collateral securing any Senior
Secured Obligation. All Liens on the Collateral securing any Senior Secured
Obligation shall be and remain senior to all Liens on the Collateral securing
any Junior Secured Obligation for all purposes, whether or not such Liens
securing any Senior Secured Obligation are subordinated to any obligation or any
Lien securing any other obligation.
2.2 Prohibition on Contesting Liens
Each Agent, for itself and on behalf of the respective Secured
Parties it represents, agrees that it shall not, and hereby waives any right to,
contest, or support any other Person in contesting, in any proceeding (including
any Insolvency or Liquidation Proceeding), the priority, validity or
enforceability of any Lien held by or for the benefit of any Senior Party or
Junior Party in the Collateral.
2.3 New Liens
(a) The parties hereto agree that, prior to the payment in full of
the Secured Obligations, any Lien on any asset of any Loan Party securing any
Secured Obligation (and which asset is not also subject to a Lien securing all
of the Secured Obligations in accordance with the priorities set forth herein)
shall immediately be released upon demand by the Senior Agent or assigned to the
Senior Agent on behalf of the Senior Parties, subject to the priorities set
forth in Section 2.1, and, at all times prior to such release or assignment, the
Senior Agent shall be acting as a sub-agent of the Junior Collateral Agent for
the sole purpose of perfecting the Lien on such asset.
(b) Each Loan Party hereby agrees not to grant, or to permit any of
its Subsidiaries to grant, except as expressly permitted by the Senior Credit
Agreement and the Junior Credit Agreement, any Lien on any of its respective
assets securing the Senior Claims or the Junior Claims, as the case may be, to
any Person other than the Senior Agent on behalf of the Senior Secured Parties
and the Junior Collateral Agent on behalf of the Junior Secured Parties, subject
to the priorities set forth in Section 2.1.
SECTION 3. ENFORCEMENT; APPLICATION OF PROCEEDS OF COLLATERAL AND
OTHER PAYMENTS
3.1 Exercise of Remedies
(a) Each Agent, for itself and on behalf of the Secured Parties it
represents, agrees that, as long as the Senior Secured Obligations have not been
paid in full, whether or not any Insolvency or Liquidation Proceeding has been
commenced by or against the Borrower or any other Loan Party:
(i) no Junior Party will (A) exercise or seek to exercise any
right or remedy with respect to any Collateral or (B) institute any action
or proceeding with respect to any such right or remedy, including any
action of foreclosure;
(ii) no Junior Party will contest, protest or object to (A)
any foreclosure proceeding or action brought by any Senior Party, (B) the
exercise of any right or remedy by any Senior Party under any Loan
Document or any other exercise by any Senior Party of any rights and
remedies relating to the Collateral, under the Loan Documents or
otherwise, (C) any disposition or release of Collateral permitted under
Section 5.1 (Releases; Enforcement by Senior Agent ) or (D) the
forbearance by any
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Senior Party from bringing or pursuing any foreclosure proceeding or any
action or any other exercise of any rights or remedies relating to the
Collateral; and
(iii) the Senior Parties shall have the exclusive right to
enforce rights, exercise remedies and make determinations regarding
release, disposition, or restrictions with respect to the Collateral
(except as otherwise expressly provided hereunder) without any
consultation with, or the need to obtain a consent from, any Junior Party.
In exercising rights and remedies with respect to the Collateral, the Senior
Parties may enforce the provisions of the Senior Loan Documents and exercise
remedies thereunder, all in such order and in such manner as they may determine
in the exercise of their sole discretion, subject to acting in a commercially
reasonable manner in accordance with the UCC. Such exercise and enforcement
shall include, without limitation, the rights of an agent appointed by them to
sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in
connection with such sale or disposition, and to exercise all the rights and
remedies of a secured lender under the uniform commercial code of any applicable
jurisdiction and of a secured creditor under the Bankruptcy Code and bankruptcy
or similar laws of any applicable jurisdiction.
(b) Each Junior Agent, for itself and on behalf of the Junior
Parties, agrees that, following the occurrence of (i) an "Event of Default" (as
defined in the Senior Credit Agreement), if the Senior Agent or the "Requisite
Lenders" (as defined in the Senior Credit Agreement) require proceeds of
Collateral to be applied in accordance with Section 2.12(f) (Payments and
Computations) of the Senior Credit Agreement, or (ii) an acceleration of any
Senior Secured Obligations pursuant to Section 8.2 (Remedies) of the Senior
Credit Agreement, such Junior Agent shall not with respect to the Junior Secured
Obligations take or receive from or on behalf of any Loan Party, directly or
indirectly, in cash or other property or by setoff, counterclaim or in any other
manner (whether pursuant to any enforcement, collection, execution, levy,
foreclosure action or other proceeding or otherwise) any Collateral or any
proceeds of Collateral, unless and until all Senior Secured Obligations have
been paid in full in accordance with Section 2.12(f) (Payments and Computations)
of the Senior Credit Agreement. Without limiting the generality of the
foregoing, unless and until the Senior Secured Obligations have been paid in
full, except as expressly provided herein, the sole right of the Junior Parties
with respect to the Collateral is to hold a Lien on the Collateral pursuant to
the Loan Documents for the period and to the extent granted therein and to
receive a share of the proceeds thereof, if any, after payment in full of the
Senior Secured Obligations; provided however, that nothing in this sentence
shall be construed to impair the right of the Junior Parties (x) to receive
payments of principal and interest as provided for in the Junior Credit
Agreement, and (y) after 90 days following the occurrence of an Event of Default
(as defined in the Junior Credit Agreement), while it is continuing, to enforce
such right to such payments by bringing suit at law (but not to exercise any
rights in respect of the Liens of the Junior Parties on the Collateral) with
respect to any unpaid amounts of such payments.
3.2 Application of Proceeds of Collateral and Other Payments
(a) Following the occurrence of (i) an "Event of Default" (as
defined in the Senior Credit Agreement), if the Senior Agent or the "Requisite
Lenders" (as defined in the Senior Credit Agreement) require proceeds of
Collateral to be applied in accordance with Section 2.12(f) (Payments and
Computations) of the Senior Credit Agreement, or (ii) an acceleration of any
Senior Secured Obligations pursuant to Section 8.2 (Remedies) of the Senior
Credit Agreement, all proceeds of Collateral received by the Agents shall be
applied by the Senior Agent in the payment of the Senior Secured Obligations in
accordance with the order of application set forth in Section 2.12(f) of the
Senior Credit Agreement. Following the payment in full of the Senior Secured
Obligations, at such time and to the extent required by Section 2.9 (Payments
and
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Computations) of the Junior Credit Agreement, all proceeds of Collateral
received by the Agents shall be applied by the Junior Administrative Agent in
payment of the Junior Secured Obligations in accordance with the order of
application set forth in Section 2.9(f) of the Junior Credit Agreement.
SECTION 4. PAYMENTS OVER
Unless and until all Senior Secured Obligations shall have been paid
in full, any Collateral or proceeds thereof or any payment received by any
Junior Party from proceeds of the Collateral shall be segregated and held in
trust and forthwith paid over to the Senior Agent for application to the Senior
Secured Obligations in the priority set forth in Section 3.2 (Application of
Proceeds of Collateral and Other Payments) in the same form as received, with
any necessary endorsements or as a court of competent jurisdiction may otherwise
direct. The Senior Agent is hereby authorized to make any such endorsements as
agent for any such Junior Party. This authorization is coupled with an interest
and is irrevocable.
SECTION 5. OTHER AGREEMENTS
5.1 Releases; Enforcement by Senior Agent
(a) In accordance with the terms hereof, each Collateral Agent shall
release (or, in the case of clause (ii) below, release or subordinate or, as
applicable, confirm that such Collateral Agent holds no such Lien) any Lien held
by either of them for the benefit of any Secured Party:
(i) against all of the Collateral, upon payment in full of all
Secured Obligations that the Senior Agent has been notified in writing are
then due and payable (provided, that such notification shall not be
required with respect to Secured Obligations in respect to loans, letters
of credit and commitments);
(ii) against any assets that are subject to a Lien permitted
by clauses (d) or (e) of Section 7.2 (Liens, Etc.) of the Senior Credit
Agreement or that constitute "Excluded Property" under and as defined in
the Senior Pledge and Security Agreement;
(iii) against any Collateral (including, if applicable, all or
substantially all of the Collateral) sold or disposed of by a Loan Party
if such sale or disposition is permitted by the Senior Credit Agreement
(or permitted pursuant to a valid waiver or consent if a transaction is
otherwise prohibited by the Senior Credit Agreement); and
(iv) against any Pledged Collateral that has been cancelled,
replaced or repaid in accordance with the terms of the Senior Credit
Agreement.
(b) To the extent the Junior Collateral Agent is required to release
any Lien pursuant to clause (a) above, the Senior Agent is authorized to release
such Liens for, and in the name of, the Junior Collateral Agent until the Senior
Secured Obligations are paid in full.
5.2 Exclusive Rights with Respect to Certain Collateral
(a) As between the Senior Parties and the Junior Parties, to the
extent any of the following rights are granted under the Loan Documents:
(i) Unless and until the Senior Secured Obligations are paid
in full, the Senior Parties shall have the sole and exclusive right,
subject to the rights of the Borrower and the other Loan Parties under the
Loan Documents, to adjust
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settlement for any insurance policy covering the Collateral in the event
of any loss thereunder and approve any award granted in any condemnation
or similar proceeding affecting the Collateral. Unless and until the
Senior Secured Obligations are paid in full, all proceeds of any such
policy and any such award required to be paid to any Secured Party under
any Loan Document shall be paid to the Senior Agent for application to the
Secured Obligations in accordance with Section 3.2 (Application of
Proceeds of Collateral and Other Payments). Without limiting the
foregoing, (x) unless and until the Senior Secured Obligations are paid in
full, if any Junior Party shall, at any time, receive any proceeds of any
such insurance policy or any such reward or any other proceeds of
Collateral in contravention of this Agreement, it shall pay such proceeds
over to the Senior Agent in accordance with the terms of Section 4
(Payments Over) and (y) in the event the Senior Parties allow pursuant to
the terms of the Loan Documents, or the terms of the Loan Documents allow,
without regard to the consent of the Senior Parties, any portion of any
insurance proceeds or condemnation proceeds or similar award to be used by
the Borrower to repair or replace the Collateral affected or for any other
purpose, each Junior Party hereby consents thereto.
(ii) Unless and until the Senior Secured Obligations are paid
in full, the Senior Parties shall have the sole and exclusive right,
subject to the rights of the Borrower and the other Loan Parties under the
Loan Documents, to do any of the following: (A) notify account debtors of
any Loan Party to make payments to any Collateral Agent, send "Blockage
Notices"(as defined in the Senior Pledge and Security Agreement) and other
similar rights with respect to general intangibles, including as set forth
in Section 5.2 (Accounts and Payments in Respect of General Intangibles)
of the Senior Pledge and Security Agreement, (B) receive dividends and
distributions, send notices or otherwise exercise any rights with respect
to any Collateral consisting of instruments or stock pledged as
Collateral, including all rights set forth in Section 5.3 (Pledged
Collateral) of the Senior Pledge and Security Agreement and as defined
therein and (C) exercise any registration and similar rights with respect
to any stock pledged as Collateral, including all rights set forth in
Section 5.5 (Registration Rights) of the Senior Pledge and Security
Agreement.
(b) Except as contemplated in the previous sentence or as otherwise
provided under the Senior Loan Documents, any payment received by the Senior
Agent under this Section 5.2 after the occurrence and during the continuance of
any Event of Default (as defined in the Senior Credit Agreement) shall be
applied to the Secured Obligations in accordance with Section 3.2 (Application
of Proceeds of Collateral and Other Payments).
5.3 Senior Agent as Bailee; Representative; Relationship
(a) The Senior Agent agrees to hold the Collateral that is in its
possession or control (or in the possession or control of its agents or bailees)
as bailee or as agent, as the case may be, for the Junior Collateral Agent (and
any assignee thereof) solely for the purpose of perfecting the security interest
granted in such Collateral to the Junior Collateral Agent pursuant to the
applicable Junior Collateral Documents, subject to the terms and conditions of
this Section 5.3. For the avoidance of doubt, solely for purposes of perfecting
the Lien in favor of the Junior Collateral Agent, the Senior Agent agrees that
it shall be the agent of the Junior Collateral Agent with respect to any Deposit
Accounts or Securities Accounts (each as respectively defined
10
in the Senior Pledge and Security Agreement) included in the Collateral that are
controlled or held by the Senior Agent.
(b) Except as otherwise expressly provided for herein, until the
Senior Secured Obligations are paid in full, the Senior Agent shall be entitled
to deal with the Collateral in accordance with the terms of the Loan Documents
as if the Liens of or for the benefit of any Junior Party under any applicable
Loan Documents did not exist. The rights of each Junior Party with respect to
the Collateral shall at all times be subject to the terms of this Agreement.
(c) The Senior Agent shall have no obligation whatsoever to any
Junior Party to assure that the Collateral is genuine or owned by the Borrower
or any other Loan Party or to preserve the rights or benefits of any Person.
(d) The Senior Agent shall not have by reason of the Loan Documents,
this Agreement or any other document a fiduciary relationship in respect of any
Junior Party. No Junior Party shall have by reason of the Loan Documents, this
Agreement or any other document a fiduciary relationship in respect of the
Senior Agent or any Senior Party.
(e) Each Loan Party hereby authorizes the Senior Agent, upon the
payment in full of the Senior Secured Obligations, to deliver to the Junior
Collateral Agent the Collateral held or received by it (together with any other
proceeds of Collateral held by it), and to make, including in the name of the
Borrower or any other Loan Party, any necessary endorsement.
(f) Each Collateral Agent shall be entitled to rely upon any
certificate, notice, consent or other instrument in writing (including any
facsimile transmission) believed by such Collateral Agent to be genuine and
correct and to have been signed or sent or made by or on behalf of a proper
Person.
SECTION 6. INSOLVENCY OR LIQUIDATION PROCEEDINGS
6.1 Financing Issues; Adequate Protection
Each Junior Agent, for itself and on behalf of the Junior Parties,
agrees that, if any Loan Party shall be subject to any Insolvency or Liquidation
Proceeding:
(a) the Junior Agents will not raise any objection to, and will not
contest (or support any Person in objecting to or contesting):
(i) any request, consent or objection by the Senior Agent or
any Senior Party to any Person receiving Adequate Protection;
(ii) any consent or objection by the Senior Agent or any
Senior Party to the use of cash collateral by any Loan Party; or
(iii) any consent or objection by the Senior Agent or any
Senior Party to any Loan Party obtaining financing under section 363 or
section 364 of the Bankruptcy Code ("DIP Financing");
provided, however, that the Senior Agent, for itself and on behalf of the Senior
Parties, agrees that in any Insolvency or Liquidation Proceeding, if any Senior
Party is granted Adequate Protection in the form of the benefit of additional or
replacement Liens or collateral in connection with any of the foregoing, then
such Senior Party will not object to the grant to the Junior Parties of Adequate
Protection in the form of additional or replacement Liens on the Collateral
(including proceeds thereof arising after the commencement of any Insolvency or
Liquidation Proceeding) or additional or replacement collateral to secure the
Junior Secured Obligations, as long as such Lien is subordinated to the Liens
securing the Senior Secured Obligations to the same extent as
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the other Liens of the Junior Parties on the Collateral are subordinated
hereunder to the Liens securing the Senior Secured Obligations;
(b) to the extent the Liens securing the Senior Secured Obligations
are subordinated to, or pari passu with, any DIP Financing, the Junior
Collateral Agent shall subordinate its Liens on the Collateral to such DIP
Financing and all Junior Secured Obligations relating thereto on the same basis
as the Liens securing the Junior Secured Obligations are subordinated to the
other Senior Secured Obligations under this Agreement; and
(c) no Junior Party will request the payment of interest on any
Junior Secured Obligation accrued or accruing after the commencement of an
Insolvency or Liquidation Proceeding or any other Adequate Protection or any
other relief except as permitted under clause (a) above or otherwise permitted
by the Senior Agent.
6.2 Relief From the Automatic Stay
Each Junior Agent, for itself and on behalf of each Junior Party,
agrees that no Junior Party shall seek relief from the automatic stay or any
other stay in any Insolvency or Liquidation Proceeding in respect of the
Collateral without the prior written consent of the Senior Agent and the
"Requisite Lenders" as defined in the Senior Credit Agreement.
6.3 No Waiver
Except as provided in Section 6.1 (Financing Issues; Adequate
Protection), nothing contained herein shall prohibit or in any way limit the
Senior Agent or any Senior Party from objecting in any Insolvency or Liquidation
Proceeding or otherwise to any action taken by the Junior Party, including the
seeking by any Junior Party of Adequate Protection or the asserting by any
Junior Party of any of its rights and remedies under the Loan Documents or
otherwise.
6.4 Preference Issues
If any Senior Party is required in any Insolvency or Liquidation
Proceeding or otherwise to turn over or otherwise pay to the estate of the
Borrower or the estate of any other Loan Party, any amount (a "Recovery"), then
the Senior Secured Obligations of such Senior Parties shall be reinstated to the
extent of such Recovery and such Senior Parties shall be entitled to receive
payment in full of all such recovered amounts. If this Agreement shall have been
terminated prior to such Recovery, this Agreement shall be reinstated in full
force and effect, and such prior termination shall not diminish, release,
discharge, impair or otherwise affect the obligations of the parties hereto.
SECTION 7. WAIVERS; ETC.
7.1 No Waiver of Provisions
(a) No right of any of the Senior Agent or any Senior Party to
enforce any provision of this Agreement shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Borrower
or any other Loan Party or by any act or failure to act by any Senior Party or
the Senior Agent, or by any noncompliance by any Person with the terms,
provisions and covenants of this Agreement or any of the Loan Documents,
regardless of any knowledge thereof which the Senior Agent or the Senior
Parties, or any of them, may have or be otherwise charged with.
12
(b) Each Junior Party, also agrees that the Senior Parties and the
Senior Agent shall have no liability to any Junior Party, and each Junior Party
hereby waives any claim against any Senior Party or the Senior Agent arising out
of any and all actions which any of the Senior Parties or the Senior Agent may
take or permit or omit to take with respect to (i) the Loan Documents, (ii) the
collection of the Senior Secured Obligations or (iii) the foreclosure upon, or
sale, liquidation or other disposition of, the Collateral (except only, in the
case of Collateral, to the extent such foreclosure, sale, liquidation or other
disposition is not made in a commercially reasonable manner in accordance with
the UCC). Each Junior Party agrees that the Senior Parties have no duty to them
in respect of the maintenance or preservation of the Collateral.
(c) Each Junior Agent, for itself and on behalf of the Junior
Parties, agrees that, unless and until the Senior Secured Obligations are paid
in full, no Junior Party shall assert and each hereby waives, to the fullest
extent permitted by law, any right to demand, request, plead or otherwise assert
or otherwise claim the benefit of, any marshaling, appraisal, valuation or other
similar right that may otherwise be available under applicable Requirement of
Law or any other similar rights a secured creditor may have under applicable
Requirement of Law.
7.2 Obligations Unconditional
All rights, interests, agreements and obligations of the Senior
Agent, the Senior Parties and the Junior Parties, respectively, hereunder shall
remain in full force and effect irrespective of:
(a) any lack of validity or enforceability of any Loan Documents;
(b) any change in the time, manner or place of payment of, or in any
other terms of, all or any of the Senior Secured Obligations or Junior
Secured Obligations, or any amendment or waiver or other modification,
including any increase in the amount thereof, whether by course of conduct
or otherwise, of the terms of the Senior Credit Agreement, the Junior
Credit Agreement or of the terms of the Loan Documents;
(c) any exchange, release or lack of perfection of any security
interest or other Lien in any Collateral or any other collateral, or any
release, amendment, waiver or other modification, whether in writing or by
course of conduct or otherwise, of any Secured Obligation or any guarantee
thereof;
(d) the commencement of any Insolvency or Liquidation Proceeding;
or
(e) any other circumstances which otherwise might constitute a
defense available to, or a discharge of, the Borrower or any Loan Party in
respect of any Secured Obligation, or of any Junior Party in respect of
this Agreement;
provided, however, that nothing in this Section 7.2 shall be construed to modify
or amend the provisions of Section 10.1 (Amendments, Waivers, Etc.) of the
Senior Credit Agreement.
SECTION 8. MISCELLANEOUS
8.1 Conflicts
Except as expressly provided herein, in the event of any conflict
between the provisions of this Agreement and the provisions of any Loan
Document, the provisions of this Agreement shall govern. It is further expressly
understood that the Lien subordination and other terms referred to herein shall
not, as between the Loan Parties and the Secured Parties, waive, cancel, relieve
the Borrower or any other Loan Party from any liability or obligation, or
otherwise modify any liability or obligation, that the Borrower or such Loan
Party may have to the Senior
13
Agent, any Senior Party or any Junior Party under the Senior Credit Agreement
any other Loan Document.
8.2 Effectiveness
This Agreement shall become effective when executed and delivered by
the Senior Agent, each Junior Agent, the Borrower and each other Loan Party
party hereto and shall be effective both before and after the commencement of
any Insolvency or Liquidation Proceeding. All references to the Borrower or any
other Loan Party shall include the Borrower or such Loan Party (as the case may
be) as debtor and debtor-in-possession and any receiver or trustee for the
Borrower or such Loan Party (as the case may be) in any Insolvency or
Liquidation Proceeding.
8.3 Continuing Nature of this Agreement
This Agreement (other than the provisions Section 3.2 (Application
of Proceeds of Collateral and Other Payments) and Section 5.1 (Releases;
Enforcement by Senior Agent)) shall continue to be effective until all Senior
Secured Obligations shall have been paid in full, and the provisions of Sections
3.2 and 5.1 shall continue to be effective until all Senior Secured Obligations
and Junior Secured Obligations have been paid in full. This is a continuing
agreement of Lien subordination and the Senior Parties may continue, at any time
and without notice to any Junior Party, to extend credit and other financial
accommodations and lend monies to or for the benefit of the Borrower on the
faith hereof. Except as expressly provided herein or in the Senior Credit
Agreement, each Junior Party hereby waives any right it may have under
applicable law to revoke this Agreement or any of the provisions of this
Agreement. The terms of this Agreement shall survive, and shall continue in full
force and effect, in any Insolvency or Liquidation Proceeding.
8.4 Amendments; Waivers
(a) No amendment, modification or waiver of any of the provisions of
this Agreement by the Senior Agent or any Junior Agent shall be deemed to have
been made unless executed by the Senior Agent and each Junior Agent; provided,
that no such amendment, modification or waiver shall require the consent of the
Borrower or any other Loan Party except to the extent provided in Section
8.4(b).
(b) Anything herein to the contrary notwithstanding, the consent of
the Borrower shall not be required for amendments, modifications or waivers of
the provisions of this Agreement other than those that (i) affect any obligation
or right of the Borrower or any Loan Party hereunder or that would impose any
additional obligations on the Borrower or any Loan Party, (ii) change the
ability of any Collateral Agent to release Collateral (or to subordinate the
Liens on the Collateral of the Collateral Agents to Liens permitted under the
Senior Credit Agreement), (iii) change the rights of the Borrower to make
payments of interest and principal in respect of the Junior Secured Obligations
or (iv) have the effect of making the Liens securing the Junior Parties pari
passu with the Liens securing the Senior Parties. Anything herein to the
contrary notwithstanding, the consent of no Loan Party (other than the Borrower
in the circumstances set forth in the preceding sentence) shall be required for
amendments, modifications or waivers of the provisions of this Agreement.
8.5 Notices
Any notice or other communication herein required or permitted to be
given to (a) any party hereto that is also a party to the Senior Credit
Agreement shall be made in accordance with Section 10.8 of the Senior Credit
Agreement, (b) any party hereto that is also a
14
party to the Junior Credit Agreement shall be made in accordance with Section
8.8 of the Junior Credit Agreement.
8.6 Further Assurances
Each of the Borrower and the other Loan Parties party hereto and
each Junior Agent, for itself and on behalf of each Junior Party, agrees that
each Loan Party and each Junior Party shall, at the Borrower's expense, take
such further action and execute and deliver to the Senior Agent and the Senior
Parties such additional documents and instruments (in recordable form, if
requested), in each case as the Senior Agent or the other Senior Parties may
reasonably request to effectuate the terms of and the subordination contemplated
by this Agreement.
8.7 Governing Law
This Agreement and the rights and liabilities of the parties hereto
shall be governed by, and construed and interpreted in accordance with, the law
of the State of New York.
8.8 Specific Performance
Each of the Agents and the Secured Parties may demand specific
performance of this Agreement. Each of the Senior Agent, on behalf of itself and
the Senior Parties, and each Junior Agent, on behalf of itself and the Junior
Parties, hereby irrevocably waives any defense based on the adequacy of a remedy
at law and any other defense which might be asserted to bar the remedy of
specific performance in any action which may be brought by the other Person.
8.9 Section Titles
The section titles contained in this Agreement are and shall be
without substantive meaning or content of any kind whatsoever and are not a part
of this Agreement, except when used to reference such sections.
8.10 Counterparts
This Agreement may be executed in one or more counterparts, each of
which shall be an original and all of which shall together constitute one and
the same document. Signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are attached to the same document. Delivery of an executed signature page of
this Agreement by facsimile transmission or by posting on the Approved
Electronic Platform (as defined in each of the Senior Credit Agreement and the
Junior Credit Agreement) shall be as effective as delivery of a manually
executed counterpart thereof.
[SIGNATURE PAGES FOLLOW]
15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first written above.
CITICORP NORTH AMERICA, INC., as Senior Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇
_____________________________________
Name: ▇▇▇▇▇▇ ▇▇▇
Title: Vice President
Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Telecopy no.:
email address:
CITICORP NORTH AMERICA, INC., as Junior
Administrative Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇
_____________________________________
Name: ▇▇▇▇▇▇ ▇▇▇
Title: Vice President
Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Telecopy no.:
email address:
CITICORP NORTH AMERICA, INC., as Junior Collateral Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇
_____________________________________
Name: ▇▇▇▇▇▇ ▇▇▇
Title: Vice President
Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Telecopy no.:
email address:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
AMKOR TECHNOLOGY, INC., as Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
_________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
GUARDIAN ASSETS, INC., as a Loan Party
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
_________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
UNITIVE, INC., as a Loan Party
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer
UNITIVE ELECTRONICS, INC., as a Loan Party
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]