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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 the Creditors and shall not
impose on Senior Lien Agent or Senior
Lien Creditors any obligations in respect
of the disposition of proceeds of
foreclosure on any Collateral which would
conflict with prior perfected claims
therein in favor of any other person or any
order or decree of any court or
other governmental authority or any
applicable law. Each Senior Lien Creditor
agrees not to subordinate, or otherwise
voluntarily relinquish the benefits of,
any Lien it may have on any Collateral to
the Lien, indebtedness or claim of any
other creditor of Borrower or any Obligor
without the prior written consent of
Revolving B Loan Agent. Each Creditor shall
be solely r
