INTERCREDITOR AGREEMENT

 

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                                                                    Exhibit 99.3

                             INTERCREDITOR AGREEMENT

 

         This INTERCREDITOR AGREEMENT, dated as of November 28, 2005, is entered

into among BANK OF AMERICA, N.A., as administrative agent for the Senior Parties

under the Bank of America Senior Lien Credit Agreement (in such capacity, the

"Senior Agent"), CITICORP NORTH AMERICA, INC. ("CNAI"), as administrative agent

for the Junior Parties under the CNAI Junior Lien Credit Agreement (in such

capacity, the "Junior Administrative Agent"), CNAI, as collateral agent for the

Junior Parties under the CNAI Junior Lien Credit Agreement (in such capacity,

the "Junior Collateral Agent"), AMKOR TECHNOLOGY, INC., UNITIVE, INC. and

UNITIVE ELECTRONICS, INC. (collectively, and each individually, the "Borrower")

and each other Loan Party from time to time party hereto .

 

                                  WITNESSETH:

 

         WHEREAS, the Borrower has entered into the certain Loan and Security

Agreement, dated as of November 28, 2005 among the Borrower, the "Lenders" as

defined therein and the Senior Agent (as such agreement may have been or may

hereafter be amended, restated, supplemented, renewed or otherwise modified from

time to time, the "Bank of America Senior Lien Credit Agreement"); and

 

         WHEREAS, the Borrower has entered into the certain Second Lien Credit

Agreement, dated as of October 27, 2004, among the Borrower, the Lenders as

defined therein, the Junior Administrative Agent, the Junior Collateral Agent,

Citigroup Global Markets, Inc. ("CGMI"), as sole lead arranger, Merrill Lynch,

as syndication agent, JPMC, as documentation agent, and CGMI, Merrill Lynch and

JPM Securities, as joint bookrunners (as such agreement may have been or may

hereafter be amended, restated, supplemented, renewed or otherwise modified from

time to time, the "CNAI Junior Lien Credit Agreement"); and

 

         WHEREAS, it is a requirement of the Bank of America Senior Lien 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.

 

INTERCREDITOR AGREEMENT - Page 1

 

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         "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.

 

         "Bank of America Senior Lien Credit Agreement" has the meaning

prescribed in the recitals to this 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.

 

         "Borrower" has the meaning prescribed in the preamble to this

Agreement.

 

         "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.

 

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         "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 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.

 

         "CNAI Junior Lien Credit Agreement" has the meaning prescribed in the

recitals to this Agreement.

 

         "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" means the Junior Administrative Agent

referred to in the preamble to this Agreement and also includes, for all

purposes, any successors thereof or assigns thereto as permitted by the CNAI

Junior Lien Credit Agreement and any other Person who hereafter is the

administrative agent, or who holds an analogous position in respect of any

Junior Secured Obligations, however titled or held, under any Junior Credit

Agreement and who is designated as the "Junior Administrative Agent" for

purposes of this Agreement in any such future Junior Credit Agreement.

 

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         "Junior Agent" means each of the Junior Administrative Agent and the

Junior Collateral Agent.

 

         "Junior Collateral Agent" means the Junior Collateral Agent referred to

in the preamble to this Agreement and also includes, for all purposes, any

successors thereof or assigns thereto as permitted by the CNAI Junior Lien

Credit Agreement and any other Person who hereafter is the collateral agent, or

who holds an analogous position in respect of any Junior Secured Obligations,

however titled or held, under any Junior Credit Agreement and who is designated

as the "Junior Collateral Agent" for purposes of this Agreement in any such

future Junior Credit Agreement.

 

         "Junior Collateral Document" means any of the "Collateral Documents" as

defined in the Junior Credit Agreement and any other agreement, instrument or

other document now or hereafter existing pursuant to which a Lien is granted

securing the Junior Secured Obligations, or any portion thereof, as the same may

be amended. renewed, extended, supplemented or modified from time to time.

 

         "Junior Credit Agreement" means the CNAI Junior Lien Credit Agreement,

and also means and includes, for all purposes, any successor or replacement

credit agreement effected by the Borrower and the other Loan Parties, or any of

them, with any other Person in any refinancing of the Junior Secured

Obligations, or any part thereof, including, without limitation, any successor,

replacement or other agreement pursuant to which any of the indebtedness,

commitments, obligations, costs, expenses, fees, reimbursements, indemnities or

other obligations now or hereafter payable or owing thereunder may be

refinanced, restructured, renewed, extended, increased, refunded or replaced, as

any of the forgoing may be modified, amended, renewed, extended, restated,

supplemented or otherwise modified from time to time.

 

         "Junior Event of Default" means an "Event of Default" as defined by the

Junior Credit Agreement or any analogous or other event or condition, howsoever

defined, under the Junior Credit Agreement that allows the Junior Agent to

accelerate the Junior Secured Obligations or to exercise remedies under any

Junior Collateral Document.

 

         "Junior Loan Document" means any "Loan Document" as defined in the

Junior Credit Agreement, or any other instrument, certificate or other document

now or hereafter existing or executed and delivered in connection with the

Junior Secured Obligations, or any portion thereof, including the Junior

Collateral Documents.

 

         "Junior Party" means each of the Junior Agents, each "Lender" as

defined in the CNAI Junior Lien Credit Agreement and each other lender or other

holder of a Junior Secured Obligation.

 

         "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 all indebtedness and obligations owing to any Junior Party arising in

connection with any refinancings, replacements or increases of any of the

foregoing, whether in the same, lesser or greater amount, and any advance or

 

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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), and any and

all renewals, extensions, increases or rearrangements of any of the foregoing.

 

         "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 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.

 

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         "Requisite Lenders" means, with respect to the Senior Credit Agreement

or the Junior Credit Agreement, as the context requires, as of any date of

determination, the minimum combination of Persons as required by the Senior

Credit Agreement or the Junior Credit Agreement, as the case may be, who

collectively are sufficient to consent to an amendment thereof or to direct an

Agent to act thereunder.

 

         "Secured Obligations" means the obligations of any Loan Party pursuant

to the Senior Loan Documents or the Junior Loan Documents, as applicable.

 

         "Senior Agent" means the Senior Agent referred to in the preamble to

this Agreement and also includes, for all purposes, any successors thereof or

assigns thereto as permitted by the Bank of America Senior Lien Credit Agreement

and any other Person who hereafter is the agent, or who holds an analogous

position in respect of any Senior Secured Obligations, however titled or held,

under any Senior Credit Agreement and who is designated as the "Senior Agent"

for purposes of this Agreement in any such future Senior Credit Agreement.

 

         "Senior Collateral Documents" means the "Collateral Documents,"

security documents or any analogous group of documents as defined in the Senior

Credit Agreement, including the Senior Pledge and Security Agreement, and any

other agreement, instrument or other document now or hereafter existing pursuant

to which a Lien is granted securing the Senior Secured Obligations, or any

portion thereof, as the same may be amended. renewed, extended, supplemented or

modified from time to time.

 

         "Senior Credit Agreement" means the Bank of America Senior Lien Credit

Agreement and also means and includes, for all purposes, any successor or

replacement credit agreement effected by the Borrower and the other Loan

Parties, or any of them, with any other Person in any refinancing of the Senior

Secured Obligations, or any part thereof, including, without limitation, any

successor, replacement or other agreement pursuant to which any of the

indebtedness, commitments, obligations, costs, expenses, fees, reimbursements,

indemnities or other obligations now or hereafter payable or owing thereunder

may be refinanced, restructured, renewed, extended, increased, refunded or

replaced, as any of the forgoing may be modified, amended, renewed, extended,

restated, supplemented or otherwise modified from time to time.

 

         "Senior Event of Default" means any "Event of Default" as defined by

the Senior Credit Agreement or any analogous or other event or condition,

howsoever defined, under the Senior Credit Agreement that allows the Senior

Agent to accelerate the Senior Secured Obligations or to exercise remedies under

any Senior Collateral Document.

 

         "Senior Loan Document" means any "Loan Document" or analogous group of

documents as defined in the Senior Credit Agreement, or any other instrument,

certificate or other document now or hereafter existing or executed and

delivered in connection with the Senior Secured Obligations, or any portion

thereof, including the Senior Collateral Documents.

 

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         "Senior Party" means each of the Senior Agent, each "Lender" and each

"Issuing Bank" as defined in the Bank of America Senior Credit Agreement and

each other lender, letter of credit issuer or other holder of a Senior Secured

Obligation.

 

         "Senior Pledge and Security Agreement" means any pledge or analogous

agreement included in the Senior Collateral Documents including, without

limitation, the Bank of America Senior Lien 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 owed to a Senior Party (in its capacity as such) under any Senior

Loan Document (including all indebtedness and obligations owing to any Senior

Party arising in connection with any refinancings, replacements or increases of

any of the foregoing, whether in the same, lesser or greater amount, and 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 from time to

time 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 or hereof following such date). 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.

 

         "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 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 Owner to vote in the election of members of the board of

directors, managers, trustees or other controlling Persons, of

 

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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