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, Xxxxxxx Xxxxx,
as syndication agent, JPMC, as documentation agent, and CGMI, Xxxxxxx Xxxxx 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
"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.
INTERCREDITOR AGREEMENT - Page 3
"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
INTERCREDITOR AGREEMENT - Page 4
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.
INTERCREDITOR AGREEMENT - Page 5
"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.
INTERCREDITOR AGREEMENT - Page 6
"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
INTERCREDITOR AGREEMENT - Page 7
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
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
INTERCREDITOR AGREEMENT - Page 8
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
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(Releases; Enforcement by Senior Agent) or (D) the forbearance by any 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) a Senior Event of Default, if the
Senior Agent or the Requisite Lenders under the Senior Credit Agreement require
proceeds of Collateral to be applied in accordance with the Senior Credit
Agreement, or (ii) an acceleration of any Senior Secured Obligations pursuant to
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 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 a
Junior Event of Default, 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) a Senior Event of Default, if the
Senior Agent or the Requisite Lenders under the Senior Credit Agreement require
proceeds of Collateral to be applied in accordance with the Senior Credit
Agreement, or (ii) an acceleration of any Senior Secured Obligations pursuant to
the Senior Credit Agreement, all proceeds of collateral received
INTERCREDITOR AGREEMENT - Page 10
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 the
Senior Credit Agreement. Following the payment in full of the Senior Secured
Obligations, at such time and to the extent required by 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 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 the Senior Credit Agreement 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 the Senior Credit Agreement where such assets are permitted to be
sold free of the Lien of the Collateral Agent without violating the
Senior Credit Agreement or that constitute assets that are not subject
to a Lien in favor of any Collateral Agent;
(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 Collateral that has been pledged to any
Collateral Agent and that has been cancelled, replaced or repaid in
accordance with the terms of the Senior Credit Agreement.
INTERCREDITOR AGREEMENT - Page 11
(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 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 the Senior Agent and
exercise other similar rights with respect to general intangibles, (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 and (C) exercise any registration and
similar rights with respect to any stock pledged as Collateral.
(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 Senior Event of Default 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
INTERCREDITOR AGREEMENT - Page 12
(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 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;
INTERCREDITOR AGREEMENT - Page 13
(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 (including proceeds thereof arising after the
commencement of any Insolvency or Liquidation Proceeding) 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 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 under 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.
INTERCREDITOR AGREEMENT - Page 14
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.
(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;
INTERCREDITOR AGREEMENT - Page 15
(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 the Senior Credit Agreement governing amendments to
or waivers of or under the Senior Credit Agreement or any other Senior Loan
Document.
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 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 from
time to time 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
INTERCREDITOR AGREEMENT - Page 16
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 such
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 the Senior Credit Agreement, (b) any
party hereto that is also a party to the Junior Credit Agreement shall be made
in accordance with 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
INTERCREDITOR AGREEMENT - Page 17
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; Form and Substance Satisfactory to Junior
Administrative Agent
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. By its execution hereof, the Junior Administrative
Agent confirms that this Agreement is in form and substance satisfactory to the
Junior Administrative Agent and is executed by such agent in accordance with
Section 5.10 of the CNAI Junior Lien Credit Agreement.
[SIGNATURE PAGES FOLLOW]
INTERCREDITOR AGREEMENT - Page 18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
SENIOR AGENT:
BANK OF AMERICA, N.A., as Senior Agent
By: /s/ Xxx X. Xxxxxxxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxxxxxxx
---------------------------------------
Title: Senior Vice President
--------------------------------------
Address for notices:
Bank of America, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
TX1-492-22-13
Xxxxxx, Xxxxx 00000
Attention: Loan Administration
Telecopy: (000) 000-0000
INTERCREDITOR AGREEMENT - Page 19
JUNIOR AGENT:
CITICORP NORTH AMERICA, INC.,
as Junior Administrative Agent
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
CITICORP NORTH AMERICA, INC.,
as Junior Collateral Agent
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
Address:
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Telecopy No.:
Email address:
INTERCREDITOR AGREEMENT - Page 20
AMKOR TECHNOLOGY, INC., as a Borrower
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------------------
Title: Chief Financial Officer
--------------------------------------
UNITIVE, INC., as a Borrower
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
---------------------------------------
Title: Treasurer
--------------------------------------
UNITIVE, ELECTRONICS INC., as a Borrower
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
---------------------------------------
Title: Treasurer
--------------------------------------
Address for notices to all Borrowers:
c/o Amkor Technology, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Treasurer
Telecopy: 000-000-0000
INTERCREDITOR AGREEMENT - Page 21
