SUBSIDIARY GUARANTY
SUBSIDIARY GUARANTY, dated as of October 27, 2004 (this "Guaranty"),
by GUARDIAN ASSETS, INC. ("Guardian"), UNITIVE, INC. ("Unitive"), UNITIVE
ELECTRONICS, INC. ("ELECTRONICS") and each other entity that becomes a party
hereto pursuant to Section 23 (Additional Guarantors) hereof (Guardian, Unitive,
Electronics and such other entities each a "Guarantor" and, collectively, the
"Guarantors"), in favor of the Administrative Agent, each Lender and each other
holder of an Obligation (as each such term is defined in the Second Lien Credit
Agreement referred to below) (each a "Guarantied Party" and, collectively, the
"Guarantied Parties").
W I T N E S S E T H:
WHEREAS, pursuant to the Second Lien Credit Agreement dated as of
October 27, 2004 (together with all appendices, exhibits and schedules thereto
and as the same may be amended, restated, supplemented or otherwise modified
from time to time, the "Second Lien Credit Agreement"; unless otherwise defined
herein, capitalized terms defined therein and used herein having the meanings
given to them in the Second Lien Credit Agreement) among AMKOR TECHNOLOGY, INC.
(the "Borrower"), the lenders party thereto (the "Lenders") and CITICORP NORTH
AMERICA, INC., as administrative agent (in such capacity, the "Administrative
Agent") and collateral agent for the Lenders, the Lenders have severally agreed
to make extensions of credit to the Borrower upon the terms and subject to the
conditions set forth therein;
WHEREAS, each Guarantor is a direct or indirect Subsidiary of the
Borrower;
WHEREAS, each Guarantor will receive substantial direct and indirect
benefits from the making of the Term Loan to the Borrower under the Second Lien
Credit Agreement; and
WHEREAS, a condition precedent to the obligation of the Lenders to
make their respective extensions of credit to the Borrower under the Second Lien
Credit Agreement is that each Guarantor shall have executed and delivered this
Guaranty for the benefit of the Guarantied Parties;
NOW, THEREFORE, in consideration of the premises set forth above,
the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1 GUARANTY
(a) To induce the Lenders to make the Term Loan, each Guarantor
hereby absolutely, unconditionally and irrevocably guarantees, as primary
obligor and not merely as surety, the full and punctual payment when due,
whether at stated maturity or earlier, by reason of acceleration, mandatory
prepayment or otherwise in accordance herewith or any other Loan Document, of
all the Obligations, whether or not from time to time reduced or extinguished or
hereafter increased or incurred, whether or not recovery may be or hereafter may
become barred by any statute of limitations, whether or not enforceable as
against the Borrower, whether now or hereafter existing, and whether due or to
become due, including principal, interest (including interest at the contract
rate applicable upon default accrued or accruing after the commencement of any
proceeding under the Bankruptcy Code, whether or not such interest is an allowed
claim in such proceeding), fees and costs of collection. This Guaranty
constitutes a guaranty of payment and not of collection.
GUARANTY
AMKOR TECHNOLOGY, INC.
(b) Each Guarantor further agrees that, if (i) any payment made by
Borrower or any other person and applied to the Obligations is at any time
annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent
or preferential or otherwise required to be refunded or repaid, or (ii) the
proceeds of Collateral are required to be returned by any Guarantied Party to
the Borrower, its estate, trustee, receiver or any other party, including any
Guarantor, under any bankruptcy law, equitable cause or any other Requirement of
Law, then, to the extent of such payment or repayment, any such Guarantor's
liability hereunder (and any Lien or other Collateral securing such liability)
shall be and remain in full force and effect, as fully as if such payment had
never been made. If, prior to any of the foregoing, this Guaranty shall have
been cancelled or surrendered (and if any Lien or other Collateral securing such
Guarantor's liability hereunder shall have been released or terminated by virtue
of such cancellation or surrender), this Guaranty (and such Lien or other
Collateral) shall be reinstated in full force and effect, and such prior
cancellation or surrender shall not diminish, release, discharge, impair or
otherwise affect the obligations of any such Guarantor in respect of the amount
of such payment (or any Lien or other Collateral securing such obligation).
SECTION 2 LIMITATION OF GUARANTY
Any term or provision of this Guaranty or any other Loan Document to
the contrary notwithstanding, the maximum aggregate amount of the Obligations
for which any Guarantor shall be liable shall not exceed the maximum amount for
which such Guarantor can be liable without rendering this Guaranty or any other
Loan Document, as it relates to such Guarantor, subject to avoidance under
applicable law relating to fraudulent conveyance or fraudulent transfer
(including Section 548 of the Bankruptcy Code or any applicable provisions of
comparable state law) (collectively, "Fraudulent Transfer Laws"), in each case
after giving effect (a) to all other liabilities of such Guarantor, contingent
or otherwise, that are relevant under such Fraudulent Transfer Laws
(specifically excluding, however, any liabilities of such Guarantor in respect
of intercompany Indebtedness to the Borrower to the extent that such
Indebtedness would be discharged in an amount equal to the amount paid by such
Guarantor hereunder) and (b) to the value as assets of such Guarantor (as
determined under the applicable provisions of such Fraudulent Transfer Laws) of
any rights to subrogation, contribution, reimbursement, indemnity or similar
rights held by such Guarantor pursuant to (i) applicable Requirements of Law,
(ii) Section 3 (Contribution) of this Guaranty or (iii) any other Contractual
Obligations providing for an equitable allocation among such Guarantor and other
Subsidiaries or Affiliates of the Borrower of obligations arising under this
Guaranty or other guaranties of the Obligations by such parties.
SECTION 3 CONTRIBUTION
To the extent that any Guarantor shall be required hereunder to pay
a portion of the Obligations exceeding the greater of (a) the amount of the
economic benefit actually received by such Guarantor from the Term Loan and (b)
the amount such Guarantor would otherwise have paid if such Guarantor had paid
the aggregate amount of the Obligations (excluding the amount thereof repaid by
the Borrower) in the same proportion as such Guarantor's net worth at the date
enforcement is sought hereunder bears to the aggregate net worth of all the
Guarantors at the date enforcement is sought hereunder, then such Guarantor
shall be reimbursed by such other Guarantors for the amount of such excess, pro
rata, based on the respective net worths of such other Guarantors at the date
enforcement hereunder is sought.
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GUARANTY
AMKOR TECHNOLOGY, INC.
SECTION 4 AUTHORIZATION; OTHER AGREEMENTS
Subject to the terms of the Intercreditor Agreement, the Guarantied
Parties are hereby authorized, without notice to, or demand upon, any Guarantor,
which notice and demand requirements each are expressly waived hereby, and
without discharging or otherwise affecting the obligations of any Guarantor
hereunder (which obligations shall remain absolute and unconditional
notwithstanding any such action or omission to act), from time to time, to do
each of the following:
(a) supplement, renew, extend, accelerate or otherwise change the
time for payment of, or other terms relating to, the Obligations, or any part of
them, or otherwise modify, amend or change the terms of any promissory note or
other agreement, document or instrument (including the other Loan Documents) now
or hereafter executed by the Borrower and delivered to the Guarantied Parties or
any of them, including any increase or decrease of principal or the rate of
interest thereon;
(b) waive or otherwise consent to noncompliance with any provision
of any instrument evidencing the Obligations, or any part thereof, or any other
instrument or agreement in respect of the Obligations (including the other Loan
Documents) now or hereafter executed by the Borrower and delivered to the
Guarantied Parties or any of them;
(c) accept partial payments on the Obligations;
(d) receive, take and hold additional security or collateral for the
payment of the Obligations or any part of them and exchange, enforce, waive,
substitute, liquidate, terminate, abandon, fail to perfect, subordinate,
transfer, otherwise alter and release any such additional security or
collateral;
(e) settle, release, compromise, collect or otherwise liquidate the
Obligations or accept, substitute, release, exchange or otherwise alter, affect
or impair any security or collateral for the Obligations or any part of them or
any other guaranty therefor, in any manner;
(f) add, release or substitute any one or more other guarantors,
makers or endorsers of the Obligations or any part of them and otherwise deal
with the Borrower or any other guarantor, maker or endorser;
(g) apply to the Obligations any payment or recovery (x) from the
Borrower, from any other guarantor, maker or endorser of the Obligations or any
part of them or (y) from any Guarantor in such order as provided herein, in each
case whether such Obligations are secured or unsecured or guaranteed or not
guaranteed by others;
(h) apply to the Obligations any payment or recovery from any
Guarantor of the Obligations or any sum realized from security furnished by such
Guarantor upon its indebtedness or obligations to the Guarantied Parties or any
of them, in each case whether or not such indebtedness or obligations relate to
the Obligations; and
(i) refund at any time any payment received by any Guarantied Party
in respect of any Obligation, and payment to such Guarantied Party of the amount
so refunded shall be fully guaranteed hereby even though prior thereto this
Guaranty shall have been cancelled or surrendered (or any release or termination
of any Collateral by virtue thereof), and such prior cancellation or surrender
shall not diminish, release, discharge, impair or otherwise affect the
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GUARANTY
AMKOR TECHNOLOGY, INC.
obligations of any Guarantor hereunder in respect of the amount so refunded (and
any Collateral so released or terminated shall be reinstated with respect to
such obligations);
even if any right of reimbursement or subrogation or other right or remedy of
any Guarantor is extinguished, affected or impaired by any of the foregoing
(including any election of remedies by reason of any judicial, non-judicial or
other proceeding in respect of the Obligations that impairs any subrogation,
reimbursement or other right of such Guarantor).
SECTION 5 GUARANTY ABSOLUTE AND UNCONDITIONAL
Each Guarantor hereby waives any defense of a surety or guarantor or
any other obligor on any obligations arising in connection with or in respect of
any of the following and hereby agrees that its obligations under this Guaranty
are absolute and unconditional and shall not be discharged or otherwise affected
as a result of any of the following:
(a) the invalidity or unenforceability of any of the Borrower's
obligations under the Second Lien Credit Agreement or any other Loan Document or
any other agreement or instrument relating thereto, or any security for, or
other guaranty of the Obligations or any part of them, or the lack of perfection
or continuing perfection or failure of priority of any security for the
Obligations or any part of them;
(b) the absence of any attempt to collect the Obligations or any
part of them from the Borrower or other action to enforce the same;
(c) failure by any Guarantied Party to take any steps to perfect and
maintain any Lien on, or to preserve any rights to, any Collateral;
(d) any Guarantied Party's election, in any proceeding instituted
under chapter 11 of the Bankruptcy Code, of the application of Section
1111(b)(2) of the Bankruptcy Code;
(e) any borrowing or grant of a Lien by the Borrower, as
debtor-in-possession, or extension of credit, under Section 364 of the
Bankruptcy Code;
(f) the disallowance, under Section 502 of the Bankruptcy Code, of
all or any portion of any Guarantied Party's claim (or claims) for repayment of
the Obligations ;
(g) any use of cash collateral under Section 363 of the Bankruptcy
Code;
(h) any agreement or stipulation as to the provision of adequate
protection in any bankruptcy proceeding;
(i) the avoidance of any Lien in favor of the Guarantied Parties or
any of them for any reason;
(j) any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, liquidation or dissolution proceeding commenced by or
against the Borrower, any Guarantor or any of the Borrower's other Subsidiaries,
including any discharge of, or bar or stay against collecting, any Obligation
(or any part of them or interest thereon) in or as a result of any such
proceeding;
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GUARANTY
AMKOR TECHNOLOGY, INC.
(k) failure by any Guarantied Party to file or enforce a claim
against the Borrower or its estate in any bankruptcy or insolvency case or
proceeding;
(l) any action taken by any Guarantied Party if such action is
authorized hereby;
(m) any election following the occurrence of an Event of Default by
any Guarantied Party to proceed separately against the personal property
Collateral in accordance with such Guarantied Party's rights under the UCC or,
if the Collateral consists of both personal and real property, to proceed
against such personal and real property in accordance with such Guarantied
Party's rights with respect to such real property; or
(n) any other circumstance that might otherwise constitute a legal
or equitable discharge or defense of a surety or guarantor or any other obligor
on any obligations, other than the payment in full of the Obligations.
SECTION 6 WAIVERS
Each Guarantor hereby waives diligence, promptness, presentment,
demand for payment or performance and protest and notice of protest, notice of
acceptance and any other notice in respect of the Obligations or any part of
them, and any defense arising by reason of any disability or other defense of
the Borrower. Each Guarantor shall not, until the Obligations are irrevocably
paid in full and the Commitments have been terminated, assert any claim or
counterclaim it may have against the Borrower or set off any of its obligations
to the Borrower against any obligations of the Borrower to it. In connection
with the foregoing, each Guarantor covenants that its obligations hereunder
shall not be discharged, except by complete performance.
SECTION 7 RELIANCE
Each Guarantor hereby assumes responsibility for keeping itself
informed of the financial condition of the Borrower and any endorser and other
guarantor of all or any part of the Obligations, and of all other circumstances
bearing upon the risk of nonpayment of the Obligations, or any part thereof,
that diligent inquiry would reveal, and each Guarantor hereby agrees that no
Guarantied Party shall have any duty to advise any Guarantor of information
known to it regarding such condition or any such circumstances. In the event any
Guarantied Party, in its sole discretion, undertakes at any time or from time to
time to provide any such information to any Guarantor, such Guarantied Party
shall be under no obligation (a) to undertake any investigation not a part of
its regular business routine, (b) to disclose any information that such
Guarantied Party, pursuant to accepted or reasonable commercial finance or
banking practices, wishes to maintain confidential or (c) to make any other or
future disclosures of such information or any other information to any
Guarantor.
SECTION 8 WAIVER OF SUBROGATION AND CONTRIBUTION RIGHTS
Until the Obligations have been irrevocably paid in full and the
Commitments have been terminated, the Guarantors shall not enforce or otherwise
exercise any right of subrogation to any of the rights of the Guarantied Parties
or any part of them against the Borrower or any right of reimbursement or
contribution or similar right against the Borrower by reason of this Agreement
or by any payment made by any Guarantor in respect of the Obligations.
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GUARANTY
AMKOR TECHNOLOGY, INC.
SECTION 9 SUBORDINATION
Each Guarantor hereby agrees that any Indebtedness of the Borrower
now or hereafter owing to any Guarantor, whether heretofore, now or hereafter
created (the "Guarantor Subordinated Debt"), is hereby subordinated to all of
the Obligations and that, except as otherwise permitted under the Intercreditor
Agreement, the Guarantor Subordinated Debt shall not be paid in whole or in part
until the Obligations have been paid in full and this Guaranty is terminated and
of no further force or effect. No Guarantor shall accept any payment of or on
account of any Guarantor Subordinated Debt at any time in contravention of the
foregoing. Subject to the terms of the Intercreditor Agreement, upon the
occurrence and during the continuance of an Event of Default, the Borrower shall
pay to the Administrative Agent any payment of all or any part of the Guarantor
Subordinated Debt and any amount so paid to the Administrative Agent shall be
applied to payment of the Obligations as provided in Section 2.9(f) (Payments
and Computations) of the Second Lien Credit Agreement. Each payment on the
Guarantor Subordinated Debt received in violation of any of the provisions
hereof shall be deemed to have been received by such Guarantor as trustee for
the Guarantied Parties and, subject to the terms of the Intercreditor Agreement,
shall be paid over to the Administrative Agent immediately on account of the
Obligations, but without otherwise affecting in any manner such Guarantor's
liability hereof. Each Guarantor agrees to file all claims against the Borrower
in any bankruptcy or other proceeding in which the filing of claims is required
by law in respect of any Guarantor Subordinated Debt, and, subject to the
Intercreditor Agreement, the Administrative Agent shall be entitled to all of
such Guarantor's rights thereunder. Subject to the terms of the Intercreditor
Agreement, if for any reason a Guarantor fails to file such claim at least ten
Business Days prior to the last date on which such claim should be filed, such
Guarantor hereby irrevocably appoints the Administrative Agent as its true and
lawful attorney-in-fact and is hereby authorized to act as attorney-in-fact in
such Guarantor's name to file such claim or, in the Administrative Agent's
discretion, to assign such claim to and cause proof of claim to be filed in the
name of the Administrative Agent or its nominee. In all such cases, whether in
administration, bankruptcy or otherwise, the person or persons authorized to pay
such claim shall, subject to the terms of the Intercreditor Agreement, pay to
the Administrative Agent the full amount payable on the claim in the proceeding,
and, to the full extent necessary for that purpose, each Guarantor hereby
assigns to the Administrative Agent all of such Guarantor's rights to any
payments or distributions to which such Guarantor otherwise would be entitled.
If the amount so paid is greater than such Guarantor's liability hereunder, the
Administrative Agent shall pay the excess amount to the party entitled thereto.
In addition, subject to the terms of the Intercreditor Agreement, each Guarantor
hereby irrevocably appoints the Administrative Agent as its attorney-in-fact to
exercise all of such Guarantor's voting rights in connection with any bankruptcy
proceeding or any plan for the reorganization of the Borrower.
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GUARANTY
AMKOR TECHNOLOGY, INC.
SECTION 10 DEFAULT; REMEDIES
The obligations of each Guarantor hereunder are independent of and
separate from the Obligations. Subject to the terms of Intercreditor Agreement,
if any Obligation is not paid when due, or during the continuance of any Event
of Default hereunder or during the continuance of any default by the Borrower as
provided in any other instrument or document evidencing all or any part of the
Obligations, the Administrative Agent may, at its sole election, proceed
directly and at once, without notice, against any Guarantor to collect and
recover the full amount or any portion of the Obligations then due, without
first proceeding against the Borrower or any other guarantor of the Obligations,
or against any Collateral under the Loan Documents or joining the Borrower or
any other guarantor in any proceeding against any Guarantor. Subject to the
terms of Intercreditor Agreement, at any time after maturity of the Obligations,
the Administrative Agent may (unless the Obligations have been irrevocably paid
in full), without notice to any Guarantor and regardless of the acceptance of
any Collateral for the payment hereof, appropriate and apply toward the payment
of the Obligations (a) any indebtedness due or to become due from any Guarantied
Party to such Guarantor and (b) any moneys, credits or other property belonging
to such Guarantor at any time held by or coming into the possession of any
Guarantied Party or any of its respective Affiliates.
SECTION 11 IRREVOCABILITY
This Guaranty shall be irrevocable as to the Obligations (or any
part thereof) until the Commitment has been terminated and all monetary
Obligations then outstanding have been irrevocably repaid in cash, at which time
this Guaranty shall automatically be cancelled. Upon such cancellation and at
the written request of any Guarantor or its successors or assigns, and at the
cost and expense of such Guarantor or its successors or assigns, the
Administrative Agent shall execute in a timely manner a satisfaction of this
Guaranty and such instruments, documents or agreements as are necessary or
desirable to evidence the termination of this Guaranty.
SECTION 12 SETOFF
Subject to the terms of the Intercreditor Agreement, upon the
occurrence and during the continuance of an Event of Default, each Guarantied
Party and each Affiliate of a Guarantied Party may, without notice to any
Guarantor and regardless of the acceptance of any security or collateral for the
payment hereof, appropriate and apply toward the payment of all or any part of
the Obligations (a) any indebtedness due or to become due from such Guarantied
Party or Affiliate to such Guarantor and (b) any moneys, credits or other
property belonging to such Guarantor, at any time held by, or coming into, the
possession of such Guarantied Party or Affiliate.
SECTION 13 NO MARSHALLING
Each Guarantor consents and agrees that no Guarantied Party or
Person acting for or on behalf of any Guarantied Party shall be under any
obligation to marshal any assets in favor of any Guarantor or against or in
payment of any or all of the Obligations.
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GUARANTY
AMKOR TECHNOLOGY, INC.
SECTION 14 ENFORCEMENT; AMENDMENTS; WAIVERS
No delay on the part of any Guarantied Party in the exercise of any
right or remedy arising under this Guaranty, the Second Lien Credit Agreement,
any other Loan Document or otherwise with respect to all or any part of the
Obligations, the Collateral or any other guaranty of or security for all or any
part of the Obligations shall operate as a waiver thereof, and no single or
partial exercise by any such Person of any such right or remedy shall preclude
any further exercise thereof. No modification or waiver of any provision of this
Guaranty shall be binding upon any Guarantied Party, except as expressly set
forth in a writing duly signed and delivered by the party making such
modification or waiver. Failure by any Guarantied Party at any time or times
hereafter to require strict performance by the Borrower, any Guarantor, any
other guarantor of all or any part of the Obligations or any other Person of any
provision, warranty, term or condition contained in any Loan Document now or at
any time hereafter executed by any such Persons and delivered to any Guarantied
Party shall not waive, affect or diminish any right of any Guarantied Party at
any time or times hereafter to demand strict performance thereof and such right
shall not be deemed to have been waived by any act or knowledge of any
Guarantied Party, or its respective agents, officers or employees, unless such
waiver is contained in an instrument in writing, directed and delivered to the
Borrower or such Guarantor, as applicable, specifying such waiver, and is signed
by the party or parties necessary to give such waiver under the Second Lien
Credit Agreement. No waiver of any Event of Default by any Guarantied Party
shall operate as a waiver of any other Event of Default or the same Event of
Default on a future occasion, and no action by any Guarantied Party permitted
hereunder shall in any way affect or impair any Guarantied Party's rights and
remedies or the obligations of any Guarantor under this Guaranty. Any
determination by a court of competent jurisdiction of the amount of any
principal or interest owing by the Borrower to a Guarantied Party shall be
conclusive and binding on each Guarantor irrespective of whether such Guarantor
was a party to the suit or action in which such determination was made.
SECTION 15 SUCCESSORS AND ASSIGNS
This Guaranty shall be binding upon each Guarantor and upon the
successors and assigns of such Guarantors and shall inure to the benefit of the
Guarantied Parties and their respective successors and assigns; all references
herein to the Borrower and to the Guarantors shall be deemed to include their
respective successors and assigns. The successors and assigns of the Guarantors
and the Borrower shall include, without limitation, their respective receivers,
trustees and debtors-in-possession. All references to the singular shall be
deemed to include the plural where the context so requires.
SECTION 16 REPRESENTATIONS AND WARRANTIES; COVENANTS
Each Guarantor hereby (a) represents and warrants that the
representations and warranties as to it made by the Borrower in Article IV
(Representations and Warranties) of the Second Lien Credit Agreement are true
and correct on the date hereof and (b) agrees to take, or refrain from taking,
as the case may be, each action necessary to be taken or not taken, as the case
may be, so that no Default or Event of Default is caused by the failure to take
such action or to refrain from taking such action by such Guarantor.
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GUARANTY
AMKOR TECHNOLOGY, INC.
SECTION 17 GOVERNING LAW
This Guaranty and the rights and obligations of the parties hereto
shall be governed by, and construed and interpreted in accordance with, the law
of the State of New York.
SECTION 18 SUBMISSION TO JURISDICTION; SERVICE OF PROCESS
(a) Any legal action or proceeding with respect to this Guaranty,
and any other Loan Document, may be brought in the courts of the State of New
York or of the United States of America for the Southern District of New York,
and, by execution and delivery of this Agreement, each Guarantor hereby accepts
for itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. The parties hereto hereby irrevocably
waive any objection, including any objection to the laying of venue or based on
the grounds of forum non conveniens, that any of them may now or hereafter have
to the bringing of any such action or proceeding in such respective
jurisdictions.
(b) Each Guarantor hereby irrevocably consents to the service of any
and all legal process, summons, notices and documents in any suit, action or
proceeding brought in the United States of America arising out of or in
connection with this Guaranty or any other Loan Document by the mailing (by
registered or certified mail, postage prepaid) or delivering of a copy of such
process to such Guarantor care of the Borrower at the Borrower's address
specified in Section 8.8 (Notices, Etc.) of the Second Lien Credit Agreement.
Each Guarantor agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
(c) Nothing contained in this Section 18 (Submission to
Jurisdiction; Service of Process) shall affect the right of the Administrative
Agent or any other Guarantied Party to serve process in any other manner
permitted by law or commence legal proceedings or otherwise proceed against a
Guarantor in any other jurisdiction.
(d) If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder in Dollars into another currency, the
parties hereto agree, to the fullest extent they may effectively do so, that the
rate of exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase Dollars with such other
currency at the spot rate of exchange quoted by the Administrative Agent at
11:00 a.m. (New York time) on the Business Day preceding that on which final
judgment is given, for the purchase of Dollars, for delivery two Business Days
thereafter.
SECTION 19 CERTAIN TERMS
The following rules of interpretation shall apply to this Guaranty:
(a) the terms "herein," "hereof," "hereto" and "hereunder" and similar terms
refer to this Guaranty as a whole and not to any particular Article, Section,
subsection or clause in this Guaranty, (b) unless otherwise indicated,
references herein to an Exhibit, Article, Section, subsection or clause refer to
the appropriate Exhibit to, or Article, Section, subsection or clause in this
Guaranty and (c) the term "including" means "including without limitation"
except when used in the computation of time periods.
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GUARANTY
AMKOR TECHNOLOGY, INC.
SECTION 20 WAIVER OF JURY TRIAL
EACH OF THE ADMINISTRATIVE AGENT, THE OTHER GUARANTIED PARTIES AND
EACH GUARANTOR IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH
RESPECT TO THIS GUARANTY AND ANY OTHER LOAN DOCUMENT.
SECTION 21 NOTICES
Any notice or other communication herein required or permitted shall
be given as provided in Section 8.8 (Notices, Etc.) of the Second Lien Credit
Agreement and, in the case of any Guarantor, to such Guarantor in care of the
Borrower.
SECTION 22 SEVERABILITY
Wherever possible, each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Guaranty shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity without invalidating the remainder of such provision or the
remaining provisions of this Guaranty.
SECTION 23 ADDITIONAL GUARANTORS
Each of the Guarantors agrees that, if, pursuant to Section 5.20
(Additional Collateral and Guarantees) of the Second Lien Credit Agreement, the
Borrower shall be required to cause any Subsidiary that is not a Guarantor to
become a Guarantor hereunder, or if for any reason the Borrower desires any such
Subsidiary to become a Guarantor hereunder, such Subsidiary shall execute and
deliver to the Administrative Agent a Guaranty Supplement in substantially the
form of Exhibit A (Guaranty Supplement) attached hereto and shall thereafter for
all purposes be a party hereto and have the same rights, benefits and
obligations as a Guarantor party hereto on the Closing Date.
SECTION 24 COLLATERAL
Each Guarantor hereby acknowledges and agrees that its obligations
under this Guaranty are secured pursuant to the terms and provisions of the
Collateral Documents executed by it in favor of the Collateral Agent, for the
benefit of the Secured Parties, and covenants that it shall not, except as
otherwise permitted under the Second Lien Credit Agreement, grant any Lien with
respect to its Property in favor, or for the benefit, of any Person other than
the Administrative Agent, for the benefit of the Secured Parties.
SECTION 25 COSTS AND EXPENSES
Each Guarantor agrees to pay or reimburse the Administrative Agent
and each of the other Guarantied Parties upon demand for all out-of-pocket costs
and expenses, including reasonable attorneys' fees (including allocated costs of
internal counsel and costs of settlement), incurred by the Administrative Agent
and such other Guarantied Parties in enforcing this Guaranty or any security
therefor or exercising or enforcing any other right or remedy available in
connection herewith or therewith.
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GUARANTY
AMKOR TECHNOLOGY, INC.
SECTION 26 WAIVER OF CONSEQUENTIAL DAMAGES
EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER
ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGE IN ANY LEGAL ACTION OR
PROCEEDING IN RESPECT OF THIS GUARANTY OR ANY OTHER LOAN DOCUMENT.
SECTION 27 RELEASE
The Administrative Agent, at the request and sole expense of the
Borrower, shall execute and deliver all releases or other documents reasonably
necessary or desirable to release any Guarantor from its obligations hereunder
in connection with any sale, disposition, reorganization, reclassification or
similar transaction of such Guarantor which is permitted by the Second Lien
Credit Agreement (or permitted pursuant to a waiver or consent of a transaction
otherwise prohibited by the Second Lien Credit Agreement), pursuant to which
such Guarantor is no longer required to be a Guarantor hereunder.
SECTION 28 ENTIRE AGREEMENT
This Guaranty, taken together with all of the other Loan Documents
executed and delivered by the Guarantors, represents the entire agreement and
understanding of the parties hereto and supersedes all prior understandings,
written and oral, relating to the subject matter hereof.
[SIGNATURE PAGES FOLLOW]
11
IN WITNESS WHEREOF, this Guaranty has been duly executed by the
Guarantors as of the day and year first set forth above.
GUARANTORS:
GUARDIAN ASSETS, INC.
By: /s/ XXXXXXX XXXXX
________________________________________________
Name: Xxxxxxx Xxxxx
Title: Chief Financial Officer
UNITIVE, INC.
By: /s/ XXXXXX XXXXXXX
________________________________________________
Name: Xxxxxx Xxxxxxx
Title: Chief Financial Officer
UNITIVE ELECTRONICS, INC.
By: /s/ XXXXXX XXXXXXX
________________________________________________
Name: Xxxxxx Xxxxxxx
Title: Chief Financial Officer
[SIGNATURE PAGE TO GUARANTY OF AMKOR TECHNOLOGY INC.'S SECOND LIEN CREDIT
AGREEMENT]
ACKNOWLEDGED AND AGREED
as of the date first above written:
CITICORP NORTH AMERICA, INC.
as Administrative Agent under the Second Lien Credit Agreement
By: /s/ XXXXXX XXX
________________________________
Name: Xxxxxx Xxx
Title: Vice President
[SIGNATURE PAGE TO GUARANTY OF AMKOR TECHNOLOGY INC.'S SECOND
LIEN CREDIT AGREEMENT]
EXHIBIT A
TO
GUARANTY
FORM OF GUARANTY SUPPLEMENT
The undersigned hereby agrees to be bound as a Guarantor for
purposes of the Subsidiary Guaranty, dated as of October 27, 2004 (the
"Guaranty"), among GUARDIAN ASSETS, INC., UNITIVE, INC., UNITIVE ELECTRONICS,
INC. and certain other Subsidiaries of AMKOR TECHNOLOGY, INC. from time to time
party thereto as Guarantors and acknowledged by CITICORP NORTH AMERICA, Inc., as
Administrative Agent, and the undersigned hereby acknowledges receipt of a copy
of the Guaranty and the Second Lien Credit Agreement. The undersigned hereby
represents and warrants that each of the representations and warranties
contained in Section 16 (Representations and Warranties; Covenants) of the
Guaranty applicable to it is true and correct on and as the date hereof as if
made on and as of such date. Capitalized terms used herein but not defined
herein are used with the meanings given them in the Guaranty.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty
Supplement to be duly executed and delivered as of ___________, ____.
[NAME OF GUARANTOR]
By: _______________________________
Name:
Title:
ACKNOWLEDGED AND AGREED
as of the date first above written:
CITICORP NORTH AMERICA, INC.
as Administrative Agent under the Second Lien Credit Agreement
By: _______________________________
Name:
Title:
