Exhibit 10.22 INTERCREDITOR AGREEMENT

 

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                                                                   Exhibit 10.22

 

                             INTERCREDITOR AGREEMENT

 

      THIS INTERCREDITOR AGREEMENT ("Agreement"), dated as of February 14, 2005,

is by and between (a) Congress Financial Corporation (Central), an Illinois

corporation, in its capacity as collateral agent and administrative agent (in

such capacity, "Senior Lien Agent" as hereinafter further defined), pursuant to

the Senior Lien Loan Agreement (as hereinafter defined), acting for and on

behalf of the financial institutions which are parties thereto as lenders

(collectively, the "Senior Lien Lenders" as hereinafter further defined) and (b)

Madeleine L.L.C., in its capacity as collateral agent and administrative agent

(in such capacity, "Revolving B Loan Agent" as hereinafter further defined)

pursuant to the Revolving B Loan Agreement (as hereinafter defined) acting for

and on behalf of the financial institutions which are parties thereto as lenders

(collectively, the "Revolving B Loan Lenders" as hereinafter defined).

 

                              W I T N E S S E T H:

 

      WHEREAS, Senior Lien Creditors (as hereinafter defined) and Anchor Glass

Container Corporation ("Borrower" as hereinafter further defined) have entered

into financing arrangements pursuant to which Senior Lien Lenders (or Senior

Lien Agent on behalf of Senior Lien Lenders) may make loans and advances and

provide other financial accommodations to Borrower as set forth in the Loan and

Security Agreement, dated as of August 30, 2002, by and among Borrower, Senior

Lien Agent, Bank of America, N.A., as documentation agent, General Electric

Capital Corporation, as lead bookrunner and syndication agent, and Senior Lien

Lenders, as amended by Amendment No. 1 to Loan and Security Agreement, dated as

of December 31, 2002, Amendment No 2 Loan and Security Agreement, dated as of

February 7, 2003, Amendment No. 3 to Loan and Security Agreement, dated as of

July 25, 2003, Amendment No. 4 to Loan and Security Agreement, dated as of

November 4, 2004 and Amendment No. 5 to Loan and Security Agreement, dated as of

the date hereof (as the same now exists or may hereafter be amended, modified,

supplemented, extended, renewed, restated or replaced, the "Senior Lien Loan

Agreement") and other agreements, documents and instruments referred to therein

or at any time executed or delivered in connection therewith or related thereto,

including, but not limited to, this Agreement (all of the foregoing, together

with the Senior Lien Loan Agreement, as the same now exist or may hereafter be

amended, modified, supplemented, extended, renewed, restated or replaced, being

collectively referred to herein as the "Senior Lien Loan Documents"); and

 

      WHEREAS, Borrower and Revolving B Loan Creditors (as hereinafter defined)

have entered or are about to enter into financing arrangements pursuant to which

Revolving B Loan Lenders (or Revolving B Loan Agent on behalf of Revolving B

Loan Lenders) may make revolving loans to Borrower as set forth in the Loan and

Security Agreement, dated of even date herewith, by and among Borrower and

Revolving B Loan Creditors (as the same now exists or may hereafter be amended,

modified, supplemented, extended, renewed, restated or replaced, the "Revolving

B Loan Agreement") and other agreements, documents and instruments referred to

therein or at any time executed or delivered in connection therewith or related

thereto, including, but not limited to, this Agreement (all of the foregoing,

together with the Revolving B Loan Agreement, as the same now exist or may

hereafter be amended, modified, supplemented,

 

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extended, renewed, restated or replaced, being collectively referred to herein

as the "Revolving B Loan Documents"); and

 

      WHEREAS, Creditors desire to enter into this Agreement to (i) confirm the

relative priority of the interests of each Creditor in the assets and properties

of Borrower, and (ii) provide for the orderly sharing among Creditors, in

accordance with such priorities, of proceeds of such assets and properties upon

any foreclosure thereon or other disposition thereof, and related matters;

 

      NOW THEREFORE, in consideration of the mutual benefits accruing to

Creditors hereunder and other good and valuable consideration, the receipt and

sufficiency of which is hereby acknowledged, the parties hereto do hereby agree

as follows:

 

      1.    DEFINITIONS

 

      As used above and in this Agreement, the following terms shall have the

meanings ascribed to them below:

 

            1.1 "Agreements" shall mean, collectively, the Senior Lien Loan

Documents, the Revolving B Loan Documents and the Security Agreements.

 

            1.2 "Availability" shall mean, at any time, the aggregate amount of

the Revolving Loans and Letter of Credit Accommodations available to Borrower

from Senior Lien Creditors based on the applicable percentages (as in effect on

the date hereof) of the Net Amount of Eligible Accounts and the Value of the

various types and categories of Eligible Inventory (as such terms are defined in

the Senior Lien Loan Agreement as in effect on the date hereof) as set forth in

Section 2.1 of the Senior Lien Loan Agreement (determined without regard to any

Revolving Loans or Letter of Credit Accommodations then outstanding), and,

accordingly, the term "Availability" is used herein to mean the aggregate amount

of Revolving Loans and Letter of Credit Accommodations available without any

reduction for the amount of Revolving Loans and Letter of Credit Accommodations

outstanding.

 

            1.3 "Borrower" shall mean Anchor Glass Container Corporation, a

Delaware corporation, with its chief executive office at One Anchor Plaza, 4343

Anchor Plaza Parkway, Tampa, Florida 33634, together with its successors and

assigns and including, without limitation, a receiver, trustee, or

debtor-in-possession on behalf of such person or on behalf of any such successor

or assign.

 

            1.4 "Collateral" shall mean all of the property and interests in

property, real or personal, tangible or intangible, now owned or hereafter

acquired by Borrower in or upon which any Creditor at any time has a Lien, and

including, without limitation, all proceeds and products of such properly and

interests in property.)

 

            1.5 "Creditors" shall mean, collectively, Senior Lien Creditors and

Revolving B Loan Creditors and their respective successors and assigns; each

sometimes being referred to herein individually as a "Creditor".

 

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            1.6 "Insolvency Proceeding" shall mean, as to any Person, any of the

following: (a) any case or proceeding with respect to such Person under the U.S.

Bankruptcy Code or any other Federal or State bankruptcy, insolvency,

reorganization or other law affecting creditors' rights or any other or similar

proceedings seeking any stay, reorganization, arrangement, composition or

readjustment of the obligations and indebtedness of such Person or (b) any

proceeding seeking the appointment of any trustee, receiver, liquidator,

custodian or other insolvency official with similar powers with respect to such

Person or any of its assets or (c) any proceeding for liquidation, dissolution

or other winding up of the business of such Person or (d) any assignment for the

benefit of creditors or any marshalling of assets of such Person.

 

            1.7 "Lenders" shall mean, collectively, Senior Lien Lenders and

Revolving B Loan Lenders, and their respective successors and assigns.

 

            1.8 "Lien" shall mean any mortgage, deed of trust, pledge,

hypothecation, assignment, deposit arrangement, security interest, encumbrance

(including, but not limited to, easements, rights of way and the like), lien

(statutory or other), security agreement or transfer intended as security,

including without limitation, any conditional sale or other title retention

agreement, the interest of a lessor under a capital lease or any financing lease

having substantially the same economic effect as any of the foregoing.

 

            1.9 "Lien Enforcement Action" means (a) any action by any Creditor

to foreclose on the Lien of such Person in all or a material portion of the

Collateral, (b) any action by any Creditor to take possession of, sell or

otherwise realize (judicially or non judicially) upon all or any material

portion of the Collateral (including, without limitation, by setoff or

notification of account debtors), and/or (c) the commencement by any Lender of

any legal proceedings against or with respect to all or any material portion of

the Collateral to facilitate the actions described in (a) and (b) above.

 

            1.10 "Maximum Senior Lien Debt" shall mean, without duplication, (a)

the portion of the aggregate outstanding principal amount of Loans and Letter of

Credit Accommodations made or issued pursuant to the Senior Lien Loan Agreement

that does not exceed the lesser of (i) $126,500,000 and (ii) 110% of

Availability; provided, that the portion of the aggregate outstanding principal

amount of Loans and Letter of Credit Accommodations that are made or issued

pursuant to the Senior Lien Loan Agreement (as in effect on the date hereof) but

that are not made or issued intentionally or with actual knowledge that such

Loans and Letter of Credit Accommodations cause the aggregate outstanding

principal amount of Loans and Letter of Credit Accommodations to exceed 110% of

Availability shall be included (but only to the extent that the aggregate

outstanding principal amount of the Loans and Letter of Credit Accommodations

does not to exceed $126,500,000) for the purposes of calculating the amount of

the Maximum Senior Lien Debt and the amount of such portion shall be calculated

as of the date upon which such Loans and Letters of Credit Accommodations are

made or issued, plus (b)Senior Lien Debt consisting of interest, fees,

indemnities, costs or expenses in respect of amounts referred to in the

immediately preceding clauses (a)(i) and (a)(ii).

 

            1.11 "Obligors" shall mean, individually and collectively, any

person (other than Borrower) liable on or in respect of the Revolving B Loan

Debt or the Senior Lien Debt, and each of their successors and assigns,

including, without limitation, a receiver, trustee or debtor-in-possession on

behalf of such person or on behalf of any such successor or assign.

 

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            1.12 "payment in full" shall mean, as applied to the Senior Lien

Debt, that (a) Senior Lien Creditors have received payment and satisfaction in

full of all of the Senior Lien Debt in cash or other immediately available funds

and (b) the Senior Lien Loan Documents have been terminated or are otherwise not

in effect; provided, that, if after receipt of any payment of, or proceeds of

collateral applied to the payment of, any of the Senior Lien Debt, any Senior

Lien Creditor is required to surrender or return such payment or proceeds to any

Person for any reason, then the Senior Lien Debt intended to be satisfied by

such payment or proceeds shall be reinstated and continue as if such payment or

proceeds had not been received by Senior Lien Creditors and Senior Lien

Creditors shall not be deemed to have received "payment in full" of the Senior

Lien Debt.

 

            1.13 "Person" or " person" shall mean any individual, sole

proprietorship, partnership, corporation (including, without imitation, any

corporation which elects subchapter S status under the Internal Revenue Code of

1986, as amended), limited liability company, limited liability partnership,

business trust, unincorporated association, joint stock company, trust, joint

venture, or other entity or any government or any agency or instrumentality or

political subdivision thereof.

 

            1.14 "Release Event" means (a) prior to the occurrence of an

Insolvency Proceeding by or against Borrower, upon the occurrence and during the

continuance of an Event of Default under the Senior Lien Loan Documents or the

taking of any Lien Enforcement Action with respect to the Collateral by any

Senior Lien Creditor; provided, that any Release Event occurring prior to an

Insolvency Proceeding by or against Borrower shall cease to constitute a Release

Event as of the occurrence of such Insolvency Proceeding if the Senior Lien

Creditors continue making loans or providing letter of credit accommodations or

other financial accommodations (whether pursuant to the Senior Lien Loan

Documents or otherwise) or consents to the use of cash collateral after the

occurrence of such Insolvency Proceeding or (b) after the occurrence of an

Insolvency Proceeding by or against Borrower, the occurrence of any of the

following: (i) the entry of an order of the Bankruptcy Court pursuant to Section

363 of the U.S. Bankruptcy Code authorizing the sale of all or substantially all

of Borrower's assets or (ii) the taking of any Lien Enforcement Action with

respect to the Collateral by any Creditor or the entry of an order of the

Bankruptcy Court pursuant to Section 362 of the U.S. Bankruptcy Code vacating

the automatic stay and authorizing any Creditor to take any Lien Enforcement

Action with respect to the Collateral.

 

            1.15 "Revolving B Loan Agent" shall mean Madeleine L.L.C., a New

York limited liability company, in its capacity as agent pursuant to the

Revolving B Loan Agreement for the benefit and on behalf of Revolving B Loan

Lenders, and its successors and assigns (and including, without limitation, any

successor, assignee or additional person at any time acting as agent for the

benefit of or on behalf of it or Revolving B Loan Lenders).

 

            1.16 "Revolving B Loan Agreement" shall have the meaning set forth

in the Preamble.

 

            1.17 "Revolving B Loan Creditors" shall mean, collectively, the

Revolving B Loan Agent and the Revolving B Loan Lenders and their respective

successors and assigns (and including any other lender or group of lenders that

at any time (a) refinances or succeeds to all or any portion of the Revolving B

Loan Debt or (b) is otherwise party to the Revolving B Loan

 

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Documents); each sometimes being referred to herein individually as "Revolving B

Loan Creditor".

 

            1.18 "Revolving B Loan Debt" shall mean all obligations, liabilities

and indebtedness of every kind, nature and description owing by Borrower or any

Obligor to Revolving B Loan Creditors arising under the Revolving B Loan

Documents, whether direct or indirect, absolute or contingent, joint or several,

due or not due, primary or secondary, liquidated or unliquidated, including

principal, interest, charges, fees, costs, indemnities and expenses, however

evidenced, whether as principal, surety, endorser, guarantor or otherwise,

whether now existing or hereafter arising, whether arising before, during or

after the initial or any renewal term of the Revolving B Loan Documents or after

the commencement of any Insolvency Proceeding with respect to Borrower or any

Obligor (and including, without limitation, the payment of interest which would

accrue and become due but for the commencement of such Insolvency Proceeding,

whether or not such interest is allowed or allowable in whole or in part in any

such Insolvency Proceeding).

 

            1.19 "Revolving B Loan Documents" shall mean, collectively, the

Revolving B Loan Agreement, and all Security Agreements and other agreements,

documents and instruments at any time executed or delivered by Borrower or any

Obligor or any other person with, to or in favor of Revolving B Loan Creditors

in connection therewith or related thereto, as each of the foregoing now exist

or may hereafter be amended, modified, supplemented, extended, renewed or

restated.

 

            1.20 "Revolving B Loan Lenders" shall mean the Persons which are

parties from time to time as lenders under the Revolving B Loan Agreement, and

their successors and assigns (including any other lender or group of lenders

that at any time succeeds to or refinances, replaces or substitutes for all or

any portion of the Revolving B Loan Debt at any time and from time to time).

 

            1.21 "Security Agreements" shall mean, collectively, the security

agreements and any other agreement, document or instrument including, in the

case of Senior Lien Creditors, the Senior Lien Loan Agreement, and in the case

of the Revolving B Loan Creditor, the Revolving B Loan Agreement and the

Security Agreement (as defined therein), at any time executed or delivered by

Borrower to or in favor of any Creditor granting a Lien upon any Collateral of

Borrower to such Creditor, in each case as the same now or may hereafter exist

and may be amended, modified, supplemented, extended, renewed, restated or

replaced; each sometimes being referred to herein individually as a "Security

Agreement".

 

            1.22 "Senior Lien Agent" shall mean Congress Financial Corporation

(Central), an Illinois corporation, in its capacity as agent acting for and on

behalf of the Senior Lien Lenders pursuant to the Senior Lien Loan Documents and

its successors and assigns (including any replacement or successor agent or

additional agent acting for and on behalf of the Senior Lien Creditors in such

capacity).

 

            1.23 "Senior Lien Loan Agreement" shall have the meaning set forth

in the Preamble.

 

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            1.24 "Senior Lien Loan Documents " shall mean, collectively, the

Senior Lien Loan Agreement and all Security Agreements and other agreements,

documents and instruments at any time executed or delivered by Borrower or any

other person to, with or in favor of any Senior Lien Creditor in connection

therewith or related thereto, as all of the foregoing now exist or may hereafter

be amended, modified, supplemented, extended, renewed or restated.

 

            1.25 "Senior Lien Creditors" shall mean, collectively, Senior Lien

Agent and Senior Lien Lenders and their respective successors and assigns (and

including any other lender or group of lenders that at any time (a) refinances

or succeeds to all or any portion of the Senior Lien Debt or (b) is otherwise

party to the Senior Lien Loan Documents); each sometimes being referred to

herein individually as "Senior Lien Creditor".

 

            1.26 "Senior Lien Debt" shall mean any and all obligations,

liabilities and indebtedness of every kind, nature and description owing by

Borrower or any Obligor to Senior Lien Creditors arising under the Senior Lien

Loan Documents, whether direct or indirect, absolute or contingent, joint or

several, due or not due, primary or secondary, liquidated or unliquidated,

including principal, interest, charges, fees, costs, indemnities and expenses,

however evidenced, whether as principal, surety, endorser, guarantor or

otherwise, whether now existing or hereafter arising, whether arising before,

during or after the initial or any renewal term of the Senior Lien Loan

Agreement or after the commencement of any Insolvency Proceeding with respect to

Borrower or any Obligor (and including, without limitation, the payment of

interest which would accrue and become due but for the commencement of such

Insolvency Proceeding whether or not such interest is allowed or allowable in

whole or in part in any such Insolvency Proceeding); provided, however, for

purposes of this Agreement, the term "Senior Lien Debt" shall not include (a)

the aggregate outstanding principal amount of loans and outstanding letter of

credit accommodations made intentionally or with actual knowledge by a Senior

Lien Creditor pursuant to the Senior Lien Loan Documents (as in effect on the

date hereof) in excess of the Maximum Senior Lien Debt or (b) any early

termination fee payable pursuant to any Senior Lien Loan Documents. The term

"Senior Lien Debt" shall include, obligations consisting of interest, fees,

indemnities, costs or expenses, in each case whether or not charged by Senior

Lien Creditors to the loan account of Borrower maintained by Senior Lien

Creditors pursuant to the Senior Lien Loan Agreement.

 

            1.27 "Senior Lien Lenders" shall mean the Persons which are parties

from time to time as lenders under the Senior Lien Loan Agreement, and their

successors and assigns (including any other lender or group of lenders that at

any time succeeds to or refinances, replaces or substitutes for all or any

portion of the Senior Lien Debt at any time and from time to time).

 

            1.28 Unless otherwise defined herein, all capitalized terms used

herein shall have the meanings given to them on the Senior Lien Loan Agreement.

All terms defined in the Uniform Commercial Code as from time to time in effect

in the State of New York, unless otherwise defined herein, shall have the

meanings set forth therein. All references to any term in the plural shall

include the singular and all references to any term in the singular shall

include the plural.

 

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      2.    SECURITY INTERESTS: PRIORITIES: REMEDIES

 

            2.1 Acknowledgment of Liens; Priorities. Senior Lien Creditors

hereby acknowledge that Revolving B Loan Agent has been granted a Lien for the

benefit of the Revolving B Loan Lenders upon the Collateral pursuant to the

Revolving B Loan Documents to secure the Revolving B Loan Debt. Revolving B Loan

Creditors hereby acknowledge that Senior Lien Agent has been granted a Lien for

the benefit of itself and the Senior Lien Lenders upon the Collateral pursuant

to the Senior Lien Loan Documents to secure the Senior Lien Debt.

Notwithstanding any conflicting terms or conditions which may be contained in

any of the Agreements, the Liens upon the Collateral of Senior Lien Agent for

the benefit of Senior Lien Creditors have and shall have priority over the Liens

upon the Collateral of Revolving B Loan Agent for the benefit of Revolving B

Loan Creditors and such Liens of Revolving B Loan Agent for the benefit of

Revolving B Loan Creditors are and shall be, in all respects, subject and

subordinate to the Liens of Senior Lien Agent for the benefit of Senior Lien

Creditors therein to the full extent of the Maximum Senior Lien Debt and to the

extent the Liens in favor of Senior Lien Agent are valid, perfected and

enforceable. Except for the payments in accordance with the terms and conditions

of Section 2.2 hereof and subject to Section 2.7 hereof, the proceeds of any

sale, disposition or other realization upon all or any part of the Collateral

shall be applied in the following order of priorities:

 

                  (a) first, to the payment in full in immediately available

funds of the expenses of the collection and enforcement of the Senior Lien Debt

and such sale, disposition or other realization, including all expenses,

liabilities and advances incurred or made by Senior Lien Agent or any Senior

Lien Creditor, or any amounts paid to or on behalf of Senior Lien Agent by any

Senior Lien Creditor in connection therewith;

 

                  (b) second, to the payment in full in immediately available

funds of all of the Senior Lien Debt to the extent of the Maximum Senior Lien

Debt in whatever manner and order Senior Lien Agent chooses in accordance with

the provisions of the Senior Lien Loan Documents and applicable law (and

including to hold as cash collateral for any Senior Lien Debt which is

contingent);

 

                  (c) third, to the payment and satisfaction in full in

immediately available funds of all of the Revolving B Loan Debt in whatever

manner and order Revolving B Loan Agent chooses in accordance with the

provisions of the Revolving B Loan Documents and applicable law; and

 

                  (d) fourth, to the payment in full in immediately available

funds of any other obligations, liabilities or indebtedness of Borrower to any

Senior Lien Creditor, if any.

 

            2.2 Permitted Payments. Senior Lien Creditors hereby agree that,

 

                  (a) Borrower may pay the reasonable attorneys' fees and

expenses of counsel for Revolving B Loan Agent incurred in connection with the

Revolving B Loan Documents in accordance with the terms and conditions of this

Agreement;

 

                  (b) Borrower may repay or pay principal, interest in cash,

fees, costs and expenses in respect of the Revolving B Loan Debt from time to

time in accordance with the

 

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terms of the Revolving B Loan Documents as in effect on the date hereof, so long

as each of the following conditions shall have been satisfied (except that the

following conditions shall not apply if such fees and expenses are otherwise

payable as provided in the immediately preceding clause (a)):

 

                        (i) Senior Lien Agent and Senior Lien Lenders shall have

received at least two (2) Business Days' prior written notice of the intention

of Borrower to repay such Revolving B Loans;

 

                        (ii) as of the date of any such payment and after giving

effect thereto, the aggregate Excess Availability of Borrower for each of the

immediately preceding thirty (30) consecutive days shall have been not less than

$12,500,000;

 

                        (iii) as of the date of any such payment and after

giving effect thereto, the aggregate Excess Availability of Borrower shall be

not less than $12,500,000; and

 

                        (iv) Senior Lien Agent and Senior Lien Lenders shall

have received the good faith projections of Borrower, that, as of the date of

any such payment and after giving effect thereto, the aggregate Excess

Availability of Borrower for the immediately succeeding thirty (30) consecutive

days after the date of any such payment will not be less than $12,500,000; and

 

                  (c) Borrower may pay interest in kind in respect of the

Revolving B Loan Debt from time to time in accordance with the terms of the

Revolving B Loan Documents and this Agreement.

 

            2.3 Priorities Unaffected by Actions or Inactions. The lien

priorities provided for in Section 2.1 hereof shall not be altered or otherwise

affected by any amendment, modification, supplement, extension, renewal,

restatement or refinancing of either the Senior Lien Debt or the Revolving B

Loan Debt, nor by any action or inaction which Senior Lien Agent or any Creditor

may take or fail to take in respect of the Collateral. The foregoing provisions

of this Agreement are intended solely to govern the respective lien priorities

as between t