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Exhibit 4.5
E XHIBIT K
TO C REDIT A
GREEMENT
ACCESS, USE AND
INTERCREDITOR AGREEMENT
A CCESS , U
SE AND I NTERCREDITOR
A GREEMENT (the “ Agreement
”), dated as of February 11, 2005, by and among Citicorp USA,
Inc., as administrative agent (in such capacity and together with
its successors and assigns in such capacity, the “
Administrative Agent ”) for the Revolving Secured
Parties (as defined below) under the Credit Agreement (as defined
below), Citibank N.A., London Branch, as security trustee for the
Revolving Secured Parties (the “ RSP Security Trustee
” and together with the Administrative Agent the “
RSP Security Representatives ” and each a “
RSP Security Representative ”) The Bank of New York,
as trustee (in such capacity and together with its successors and
assigns in such capacity, the “ Trustee ”),
pursuant to the First Mortgage Notes Indenture (as defined below)
for First Mortgage Secured Parties (as defined below), The Bank of
New York, London Branch, as security trustee for the First Mortgage
Secured Parties (the “ FMN Security Trustee ”
and together with the Trustee the “ FMN Security
Representatives ” and each a “ FMN Security
Representative ”). Each of Constar International Inc.
(“ Constar” ) and each of the subsidiaries of
Constar named on the signature pages hereto (collectively, with
Constar, the “ Obligors ”) acknowledge this
Agreement and agree to be bound by the terms hereof.
W I T N E S S E T H
:
W HEREAS ,
Constar has entered into the Credit Agreement, dated as of February
11, 2005 (as amended, amended and restated, supplemented, otherwise
modified, extended, refinanced, refunded, renewed or replaced from
time to time, the “ Credit Agreement ”), with
the lenders and issuers named therein and the Administrative Agent,
pursuant to which the Revolving Credit Lenders (as defined below)
have agreed to make loans and to provide other financial
accommodations to Constar for the purposes and upon the terms and
subject to the conditions set forth therein;
W HEREAS ,
each of Constar and the other Obligors has granted a security
interest (or comparable interest) to the Administrative Agent and
the RSP Security Trustee for the benefit of the Revolving Secured
Parties (as defined below) in the Revolving Collateral (as defined
below) to secure the repayment of the Revolving Secured Obligations
(as defined below);
W HEREAS ,
each of Constar and the other Obligors has entered into an
Indenture dated as of February 11, 2005 (as amended, supplemented
or otherwise modified from time to time, the “ First
Mortgage Notes Indenture ”) pursuant to which Constar has
issued LIBOR plus 3.375% notes due 2012 in the original principal
amount of $220,000,000 (the “ First Mortgage
Notes” );
W HEREAS ,
each of Constar and the other Obligors have granted a security
interest (or comparable interest) to the Trustee and the FMN
Security Trustee for the benefit of the First Mortgage Secured
Parties (as defined below), in the First Mortgage Collateral (as
defined below) to secure the repayment of the First Mortgage
Secured Obligations (as defined below);
W HEREAS ,
each RSP Security Representative, for itself and on behalf and for
the benefit of the Revolving Secured Parties, and each FMN Security
Representative, for itself and on and on behalf and for the benefit
of the First Mortgage Secured Parties (each of the RSP Security
Representatives and each of the FMN Security Representatives, in
such capacity, a “ Secured Party, ” and,
collectively, the “ Secured Parties ”) are
entering into this Agreement in order to acknowledge the respective
security interests of the Secured Parties with respect to certain
property of Constar and the other Obligors and to clarify the RSP
Security Representatives’ rights of access to and use of the
First Mortgage Collateral;
N OW , T
HEREFORE , in consideration of the premises and the
mutual agreements contained herein, the parties hereto agree as
follows:
1. D EFINED
T ERMS .
“ Account”
has the meaning specified in the UCC.
“ Adequate
Protection” means “adequate protection
” under Sections 361, 362, 363 or 364 of the Bankruptcy
Code.
“ Administrative
Agent” has the meaning specified in the preamble
hereto.
“
Agreement” has the meaning specified in the preamble
hereto.
“ Bankruptcy
Code ” means the provisions of Title 11 of the United
States Code, 11 U.S.C. §§101 et seq .
“Bankruptcy
Law” means the Bankruptcy Code, the Insolvency Acts, or
any federal, state or foreign 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 any Obligor or any similar law relating to or
affecting the enforcement of creditors’ rights
generally.
“Chattel
Paper” has the meaning specified in the UCC.
“ Collateral
” means, collectively, the Revolving Collateral and the First
Mortgage Collateral.
“Commercial Tort
Claim” has the meaning specified in the UCC.
“ Companies Act
” means the Companies Act 1985 of England and
Wales.
“ Constar”
has the meaning specified in the preamble hereto.
“ Constar
UK” means Constar International U.K. Limited, a
corporation organized under the laws of England and
Wales.
“ Copyright
Licenses ” means any written agreement naming any Obligor
as licensor or licensee granting any right under any Copyright,
including the grant of any right to copy, publicly perform, create
derivative works, manufacture, distribute, exploit or sell
materials derived from any Copyright.
“ Copyrights
” means (a) all copyrights arising under the laws of the
United States, any other country or any political subdivision
thereof, whether registered or unregistered and whether published
or unpublished, all registrations and recordings thereof and all
applications in connection therewith, including all registrations,
recordings and applications in the United States Copyright Office
or in any foreign counterparts thereof, and (b) the right to obtain
all renewals thereof.
“Deposit
Account” has the meaning specified in the UCC.
“Documents” has the meaning specified in the
UCC.
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“Equipment” has the meaning specified in the
UCC.
“ First Mortgage
Collateral ” means all of the real property, equipment,
fixed assets and other property described on Schedule 1
hereto in or upon which the Trustee or the FMN Security Trustee,
for the benefit of the First Mortgage Secured Parties, has a Lien.
Notwithstanding the foregoing, “ First Mortgage
Collateral ” does not include any Revolving
Collateral.
“ First Mortgage
Documents ” means the First Mortgage Notes Indenture and
the First Mortgage Notes, each other agreement listed on
Schedule 2 and each certificate, instrument, agreement or
document executed by an Obligor and delivered to the First Mortgage
Secured Parties in connection with or pursuant thereto and any and
all future agreements, documents and/or instruments evidencing,
documenting, securing or otherwise relating to all or any portion
of the First Mortgage Secured Obligations, including any documents,
instruments or agreements evidencing or securing the amendment,
supplement, or other modification thereof.
“ First Mortgage
Notes” has the meaning specified in the recitals
hereto.
“ First Mortgage
Notes Indenture” has the meaning specified in the
recitals hereto.
“ First Mortgage
Noteholders ” means the holders of the First Mortgage
Notes.
“ First Mortgage
Secured Obligations” means all obligations of the
Obligors from time to time arising under or in respect of the First
Mortgage Documents (including, without limitation, the obligations
to pay principal, interest and all other charges, fees, expenses,
commissions, reimbursements, premiums, indemnities and other
payments related to or in respect of the obligations contained in
the First Mortgage Documents). “ First Mortgage Secured
Obligations ” includes all interest accrued or accruing
(or which would, absent the commencement of an Insolvency or
Liquidation Proceeding, accrue) after the commencement of an
Insolvency or Liquidation Proceeding in accordance with and at the
rate specified in the First Mortgage Notes Indenture whether or not
the claim for such interest is allowed as a claim against any
Obligor in such Insolvency or Liquidation Proceeding.
“First Mortgage
Secured Parties ” means the Trustee, the FMN Security
Trustee and the First Mortgage Noteholders.
“ Fixtures
” has the meaning specified in the UCC.
“General
Intangible” has the meaning specified in the
UCC.
“ Incremental Access
Costs” means those reasonable costs that are directly
attributable to the Revolving Secured Parties use of the First
Mortgage Collateral in excess of any such costs that the First
Mortgage Secured Parties would have incurred in the prudent or
customary preservation of the First Mortgage Collateral whether or
not the Revolving Secured Parties had so used the First Mortgage
Collateral.
“Insolvency or
Liquidation Proceeding ” means (a) any voluntary or
involuntary case or proceeding under any Bankruptcy Law with
respect to any Obligor, (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 any Obligor or with respect to any of
their respective assets, (c) any voluntary or involuntary
liquidation, dissolution, reorganization or winding up of any
Obligor, whether voluntary or involuntary and whether or not
involving insolvency or
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bankruptcy, or (d) any voluntary or
involuntary assignment to or for the benefit of creditors or any
other marshaling of assets and liabilities of any
Obligor.
“Insolvency Acts
” means the Insolvency Acts 1986 and 2000, as amended and in
effect from time to time, of the United Kingdom.
“ Intellectual
Property” means Copyrights, Copyright Licenses, Patents,
Patent Licenses, Trademarks and Trademark Licenses, and all other
rights under any of the foregoing.
“
Instrument” has the meaning specified in the
UCC.
“ Investment
Property ” has the meaning specified in the
UCC.
“ IP
License” has the meaning specified in Section 5(a)
hereto.
“ Lien ”
means any mortgage, deed of trust, pledge, hypothecation,
assignment, charge (whether fixed or floating), 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 assure 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, and the filing of any financing
statement under the UCC, the Companies Act or comparable law of any
jurisdiction naming the owner of the relevant asset as
debtor.
“ Letter of Credit
Rights” has the meaning specified in the UCC.
“Obligors”
has the meaning specified in the preamble hereto.
“paid in
full” and “payment in full” means (a)
with respect to any and all Revolving Secured Obligations, (i) in
the case of obligations other than obligations in respect of
letters of credit, payment in full thereof in cash (or otherwise to
the written satisfaction of the Revolving Secured Parties), (ii) in
the case of any outstanding letter of credit under the Credit
Agreement, receipt of cash collateral (or a backstop letter of
credit in respect thereof on terms acceptable to the applicable
issuer and on terms and from an issuer acceptable to the
Administrative Agent) in an amount equal to 105% of the amount
available to be drawn under such letters of credit, and (iii)
termination of the Revolving Credit Commitments (as defined in the
Credit Agreement) and all other obligations of the Revolving
Secured Parties under the Revolving Loan Documents, and (b) with
respect to any and all First Mortgage Secured Obligations, payment
in full thereof in cash (or otherwise to the written satisfaction
of the First Mortgage Secured Parties).
“ Patents
” means (a) all letters patent of the United States, any
other country or any political subdivision thereof and all reissues
and extensions thereof, (b) all applications for letters patent of
the United States or any other country and all divisionals,
continuations and continuations-in-part thereof and (c) all rights
to obtain any reissues, continuations or continuations-in-part of
the foregoing.
“ Patent License
” means all agreements, whether written or oral, providing
for the grant by or to any Obligor of any right to manufacture,
have manufactured, use, import, sell or offer for sale any
invention covered in whole or in part by a Patent.
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“ 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 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.
“Proceeds”
has the meaning specified in the UCC.
“Representative” means any of the FMN
Security Representatives or any of the RSP Security
Representatives, and “Representatives” means all
of the FMN Security Representatives and all of the RSP Security
Representatives, collectively.
“ Revolving
Collateral ” means all of the property described on
Schedule 3 hereto in or upon which the Administrative Agent
or the RSP Security Trustee for the benefit of the Revolving
Secured Parties has a Lien.
“Revolving Credit
Lenders” means the Lenders under and as defined in the
Credit Agreement.
“ Revolving
Intellectual Property” means Intellectual Property that
is Revolving Collateral.
“ Revolving Loan
Documents ” means the “ Loan Documents
” as such term is used in and defined under the Revolving
Agreement.
“ Revolving Secured
Obligations ” (a) the “Obligations” as
defined in and used under the Credit Agreement, all extensions of
credit under any financing under section 364 of the Bankruptcy Code
and any arrangement for use of cash collateral under section 363 of
the Bankruptcy Code (the terms of which are consented to in writing
by the Revolving Agent in its capacity as such) in each case under
this clause (a) , and (b) all other obligations owing to a
Revolving Secured Party under the Credit Agreement and the other
Revolving Loan Documents, including, without limitation,
obligations under Hedging Contracts (as used in and defined under
the Credit Agreement) and Cash Management Obligations (occurred as
used in or defined under or Credit Agreement). “ Revolving
Secured Obligations ” shall include all interest accrued
or accruing (or which would, absent the commencement of an
Insolvency or Liquidation Proceeding, accrue) after the
commencement of an Insolvency or Liquidation Proceeding in
accordance with and at the rate specified in the Credit Agreement
whether or not the claim for such interest is allowed as a claim
against any Obligor in such Insolvency or Liquidation
Proceeding.
“ Revolving Secured
Parties” means the Secured Parties as such term is used
in and defined under the Credit Agreement.
“ Secured
Party” and “ Secured Parties” has the
meaning specified in the recitals hereto.
“ Trademark
License ” means any agreement, whether written or oral,
providing for the grant by or to any Obligor of any right to use
any Trademark.
“ Trademarks
” means (a) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade
styles, service marks, logos and other source or business
identifiers, and, in each case, all goodwill associated therewith,
whether now existing or hereafter adopted or acquired, all
registrations and recordings thereof and all applications in
connection therewith, in each
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case whether in the United States Patent
and Trademark Office or in any similar office or agency of the
United States, any State thereof or any other country or any
political subdivision thereof, or otherwise, and all common-law
rights related thereto, and (b) the right to obtain all renewals
thereof.
“ Trustee”
has the meaning specified in the preamble hereto.
“ UCC ”
means the Uniform Commercial Code as in effect from time to time in
the State of New York.
2. S
ECURITY I NTERESTS . Irrespective
of (a) the time, order, manner or method of creation, attachment or
perfection of the respective Liens granted to a RSP Security
Representative or a FMN Security Representative in or on any or all
of the property or assets of the Obligors, (b) the time or manner
of the filing of their respective financing statements (whether
filed under the UCC or the Companies Act), (c) whether a RSP
Security Representative or a FMN Security Representative or any
bailee or agent thereof holds possession of any or all of the
property or assets of the Obligors, (d) the dating, execution or
delivery of any agreement, document or instrument granting a FMN
Security Representative or a RSP Security Representative a Lien in
or on any or all of the property or assets of the Obligors, (e) the
giving or failure to give notice of the acquisition or expected
acquisition of any purchase money or other Liens and (f) any
provision of the UCC, the Companies Act or any other applicable law
to the contrary, the RSP Security Representative and the FMN
Security Representative hereby acknowledge and agree
that:
(i) the FMN Security
Representatives have a Lien in the First Mortgage Collateral and
neither the RSP Security Representatives nor any Revolving Secured
Party has a Lien (whether direct or by assignment of an
intercompany promissory note) in any of the First Mortgage
Collateral; and
(ii) the RSP Security
Representatives have a Lien in the Revolving Collateral and neither
the FMN Security Representatives nor any First Mortgage Secured
Party has a Lien (whether direct or by assignment of an
intercompany promissory note) in any of the Revolving
Collateral.
For purposes of the foregoing, any claim
of a right of set-off shall be treated in all respects as a Lien
and no claimed right of setoff shall be asserted to defeat or
diminish the rights or interests provided for herein.
3. N OTICES
OF D EFAULT , F
ORECLOSURE , ETC .
(a) Each Secured Party agrees
to furnish to the other Secured Parties (at the same time it is
sent to Constar or any other Obligor) a copy of each notice of an
event of default, acceleration, demand or foreclosure as such
Secured Party giving the notice shall send to Constar or any other
Obligor, and further agrees that in each case such notice shall be
given in accordance with Section 19 hereof; provided,
however, that the failure to give any such notice to the other
Secured Parties shall not affect the effectiveness of any notice
given to Constar or any other Obligor or the validity of this
Agreement. The receipt of such notice shall not give the recipient
any obligation to cure any default.
(b) Each FMN Security
Representative agrees that, not less than 10 days prior to the
exercise of any of its foreclosure and collection rights or
remedies with respect to any of the First Mortgage Collateral, it
shall give the RSP Security Representatives written notice thereof;
provided, however, that the failure to give such notice
shall not affect the validity of this Ag
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