Exhibit 10.2
INTERCREDITOR
AGREEMENT
THIS INTERCREDITOR
AGREEMENT (this “
Agreement ”) is entered into as of August 16,
2005, by and among (i) Deutsche Bank AG New York Branch
(“ DBAG ”), acting in its capacity as
Administrative Agent under the Credit Agreement (as hereinafter
defined) (together with its successors and assigns in such
capacity, the “ Administrative Agent ”),
(ii) Deutsche Bank AG New York Branch, acting in its capacity
as collateral agent under the Security Agreement (as hereinafter
defined), and in its capacity as collateral agent under the UK
Debenture (as hereinafter defined) (together with its successors
and assigns in such capacity, the “ Bank and Note
Collateral Agent ”), (iii) Deutsche Bank AG New York
Branch, as beneficiary for the benefit of the Secured Creditors
under the Mortgages (as hereinafter defined) (together with its
successors and assigns in such capacity, the “
Mortgagee ”) and (iv) HSBC Bank USA, National
Association (as successor to HSBC Bank USA), as trustee for the
holders of Senior Secured Notes (as defined below) issued under the
Senior Secured Notes Indenture (as hereinafter defined) (in such
capacity, together with its successors and assigns in such
capacity, the “ Senior Secured Notes Trustee ”),
and is acknowledged and consented to by Huntsman International LLC,
a Delaware limited liability company (“ Borrower
”).
R E C I T A L S
WHEREAS, Deutsche Bank Trust Company
Americas (“ DB ”), as First Priority Bank Agent,
DB, as First Priority Collateral Agent, DB, as Second Priority Bank
Agent, DB, as Second Priority Collateral Agent, DB, as Mortgagee,
the Senior Secured Notes Trustee and Borrower are parties to a
Second Amended and Restated Intercreditor Agreement dated as of
October 14, 2004 (the “ Prior Intercreditor
Agreement ”);
WHEREAS, Huntsman LLC, a Utah
limited liability company (“ HLLC ”), has issued
$455.4 million in aggregate principal amount of 11-5/8% Senior
Secured Notes due 2010 (such notes, together with any exchange
notes and additional notes (the “ Senior Secured Notes
”)) issued under the Indenture dated as of September 30,
2003 among HLLC, the guarantors named therein and the Senior
Secured Notes Trustee (as amended, supplemented or otherwise
modified from time to time, in accordance with the terms hereof,
the “ Senior Secured Notes Indenture
”);
WHEREAS, on the Closing Date (as
defined in the Credit Agreement), HLLC will merge with and into the
Borrower, with the Borrower as the surviving entity (the “
Merger ”);
WHEREAS, contemporaneously herewith,
Borrower, the Administrative Agent and the lenders parties thereto
are entering into the Credit Agreement to repay in full, extinguish
and replace (i) that certain Revolving Credit Agreement dated
as of October 14, 2004 by and among HLLC, DB, as
administrative agent and the lenders party thereto, (ii) that
certain Credit Agreement dated as of October 14, 2004 by and
among HLLC, DB, as administrative agent and collateral agent and
the lenders party thereto and (iii) that certain Credit
Agreement dated as of July 13, 2004 by and among Borrower,
Huntsman International Holdings LLC, the financial
institutions party thereto, DB, as
administrative agent, and the co-lead arrangers, co-syndication
agents and co-documentation agents identified therein;
WHEREAS, contemporaneously herewith,
in order to secure the Obligations (as defined herein), Borrower,
certain subsidiaries of Borrower parties thereto and the Bank and
Note Collateral Agent are entering into a Collateral Security
Agreement (as amended, replaced, modified, extended, renewed,
supplemented, restated or replaced (in connection with a
Refinancing or otherwise) or otherwise modified from time to time,
the “ Security Agreement ”);
WHEREAS, contemporaneously herewith,
Borrower and certain subsidiaries of Borrower are granting certain
mortgages to secure the Obligations; and
WHEREAS, the Bank and Note
Collateral Agent, the Administrative Agent, the Mortgagee, the
Senior Secured Notes Trustee and Borrower desire to enter into this
Agreement for the purpose of setting forth the rights and
obligations of the Collateral Agents (as defined herein) and the
respective secured parties with respect to the
Collateral.
NOW, THEREFORE, in consideration of
the premises and the mutual agreements set forth herein, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1.
Defined Terms
. As used in this
Agreement, the following terms shall have the following meanings
(all such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
“ Administrative Agent
” shall have the meaning set forth in the first paragraph of
this Agreement.
“ Assignor ”
shall mean any Assignor (as defined in the Security
Agreement).
“ Bank and Note Collateral
Agent ” shall have the meaning set forth in the first
paragraph of this Agreement.
“ Bank Obligations
” shall mean Bank Obligations (as defined in the Security
Agreement), together with any obligations incurred to evidence any
refunding, Refinancing, replacement or successive refunding,
Refinancing or replacement thereof.
“ Bank Secured
Creditors ” shall mean all holders of the Bank
Obligations.
“ Bankruptcy Code
” shall mean the provisions of Title 11 of the United States
Code, 11 U.S.C. 101 et seq. or any other applicable bankruptcy,
insolvency or similar laws.
“ Bankruptcy Event
” shall mean the occurrence of any of the events described in
Sections 10.1(e) or (f) of the Credit
Agreement.
“ Bankruptcy Proceeding
” shall mean, with respect to any Person, any proceeding
commenced, without the application or consent of such Person, in
any court, seeking the liquidation, reorganization, debt
arrangement, dissolution, winding up, or composition or
readjustment of debts of such Person, the appointment of a trustee,
receiver, custodian,
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liquidator, assignee, sequestrator or the like
for such Person or any substantial part of its assets, or any
similar action with respect to such person under any law (foreign
or domestic) relating to bankruptcy, insolvency, reorganization,
winding up or composition or adjustment of debts or any voluntary
case or other proceeding under any applicable bankruptcy,
insolvency, reorganization, debt arrangement, dissolution or other
similar law now or hereafter in effect.
“ Borrower ”
shall have the meaning provided in the first paragraph of this
Agreement.
“ Collateral ”
shall mean the property from time to time consisting of Collateral
(as defined in the Security Agreement), the Mortgaged Property (as
defined in the Mortgages) and any other property from time to time
pledged pursuant to any Security Document other than the Excluded
Collateral.
“ Collateral Agents
” shall mean the Bank and Note Collateral Agent and the
Mortgagee.
“ Credit Agreement
” shall mean that certain Credit Agreement by and among
Borrower, DBAG, as administrative agent, Deutsche Bank Securities
Inc., as joint lead arranger and joint book runner, Citigroup
Global Markets Inc., as co-syndication agent, joint lead arranger
and joint book runner, and Credit Suisse, as co-syndication agent
and joint book runner and the lenders parties thereto, together
with any agreement or agreements from time to time executed by
Borrower to evidence any refunding, Refinancing, replacement or
successive refunding, Refinancing or replacement of all or any part
of the Bank Obligations, together with any amendments,
replacements, modifications, extensions, renewals or supplements
to, or restatements of, any of the foregoing.
“ Credit Documents
” shall mean the Loan Documents, the Senior Secured Note
Indenture and the notes issued thereunder.
“ Credit Party ”
shall mean any Credit Party (as defined in the Credit
Agreement). The term “ Credit Parties ”
shall have a correlative meaning.
“ DB ” shall have
the meaning set forth in the Recitals hereto.
“ DBAG ” shall
have the meaning set forth in the first paragraph of this
Agreement.
“ Excluded Collateral
” shall mean the Collateral (as defined in the Pledge
Agreement).
“ Fully Paid ”
shall mean, with respect to any Obligation, that the obligee of
such Obligation shall have certified to the Bank and Note
Collateral Agent that such Obligation has terminated and that there
remain no obligations of any kind whatsoever of the Borrower or any
Credit Party with respect thereto (other than contingent
indemnification obligations as to which no claims shall have
accrued or shall be pending).
“ Instructing Group
” shall mean the Instructing Group (as defined in the
Security Agreement).
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“ Lender ” shall
mean any Lender as defined in the Credit Agreement, together with
its respective successors and assigns in such capacity.
“ Liens ” shall
mean Liens as defined in the Credit Agreement.
“ Loan Documents
” shall mean the Loan Documents (as defined in the Credit
Agreement) and all other documents, instruments and agreements now
or hereafter evidencing or securing the whole or any part of the
Bank Obligations (including, without limitation, each of the loan
documents as defined in any principal agreement evidencing the Bank
Obligations, including any documents evidencing or securing any
complete, partial or successive refunding, Refinancing or
replacement of the Bank Obligations, together with any amendments,
replacements, modifications, extensions, renewals or supplements
to, or restatements of, any of the foregoing).
“ Mortgagee ”
shall have the meaning set forth in the first paragraph of this
Agreement.
“ Mortgages ”
shall mean Mortgages (as defined in the Credit
Agreement).
“ Obligations ”
shall mean the Bank Obligations and the Senior Secured Notes
Obligations.
“ Other Collateral
Agent ” shall mean (i) with respect to the Bank and
Note Collateral Agent, the Mortgagee and (ii) with respect to
the Mortgagee, the Bank and Note Collateral Agent.
“ Person ” shall
mean Person as defined in the Credit Agreement.
“ Pledge Agreement
” shall mean Pledge Agreement as defined in the Credit
Agreement.
“ Prior Intercreditor
Agreement ” shall have the meaning set forth in the
Recitals hereto.
“ Refinance ”
shall mean, with respect to any Obligation, to refinance, extend,
renew, repay, prepay, redeem, defease or retire, or to issue
indebtedness in exchange or replacement for, such Obligation.
“ Refinancing ” has a correlative
meaning.
“ Secured Creditors
” shall mean all holders of the Obligations.
“ Security Agreement
” shall have the meaning set forth in the Recitals
hereto.
“ Security Documents
” shall mean the Security Agreement and all other Security
Documents as defined in the Credit Agreement, other than the Pledge
Agreement and the UK Pledge Agreements.
“ Senior Secured
Noteholders ” shall mean the holders of the Senior
Secured Notes Obligations.
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“ Senior Secured Notes
” shall have the meaning set forth in the Recitals
hereto.
“ Senior Secured Notes
Indenture ” shall have the meaning set forth in the
Recitals hereto.
“ Senior Secured Notes
Obligations ” shall mean Senior Secured Notes Obligations
as defined in the Security Agreement.
“ Senior Secured Notes
Trustee ” shall have the meaning set forth in the first
paragraph of this Agreement.
“ UK Debenture ”
shall mean UK Debenture as defined in the Credit
Agreement.
“ UK Pledge Agreements
” shall mean UK Pledge Agreements as defined in the Credit
Agreement.
“ Uniform Commercial
Code ” shall mean the Uniform Commercial Code as in
effect from time tom time in the relevant jurisdiction.
Section 2.
Lien Priorities
.
(a)
(i)
The parties
hereto hereby agree that, notwithstanding the time, order or method
of creation, attachment or perfection of the respective security
interests and/or Liens granted in favor of the Collateral Agents to
secure the Obligations or the filing or recording of financing
statements or other Security Documents; the validity or
enforceability of the security interests and Liens granted in favor
of the Collateral Agents or the Secured Creditors; the dating,
execution or delivery of any agreement, document or instrument
granting any Collateral Agent or Secured Creditor security
interests and/or Liens in or on any or all of the property or
assets of any pledgor; the date on which any indebtedness is
extended; the giving or failure to give notice of the acquisition
or expected acquisition of any purchase money or other security
interest; any provision of the Uniform Commercial Code, including
any rule for determining priority thereunder or under any
other law or rule governing the relative priorities of secured
creditors, including with respect to real property or fixtures; any
provision set forth in any Loan Document or the Senior Secured
Notes Indenture or the Senior Secured Notes; or the possession or
control by any Collateral Agent or Secured Creditor or any bailee
of all or any part of any Collateral as of the date hereof or
otherwise, the Liens granted on the Collateral under the Security
Documents to secure the Obligations shall at all times secure the
Bank Obligations and the Senior Secured Note Obligations on a pari
passu basis.
(ii)
Notwithstanding the terms of any
Loan Document or the Senior Secured Notes Indenture, in the event
of any enforcement of any Liens or in connection with a Bankruptcy
Proceeding, all proceeds of Collateral, including the proceeds of
any collection, sale or disposition of the Collateral or any
portion thereof in connection with the exercise of remedies under
the Security Documents or otherwise and any proceeds or recoveries
under any title insurance policy(ies) insuring any Mortgage, shall
be distributed in accordance with Section 8.5 of the Security
Agreement.
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(iii)
In the event that the Administrative
Agent or the Senior Secured Note Trustee receives the proceeds of
any Collateral in contravention of the preceding paragraph (ii), it
shall hold such proceeds in trust for, and promptly turn over such
proceeds (in the same form as received, with any necessary
non-recourse endorsement) to the proper Person in accordance with
the provisions of clause (ii) above; provided ,
however , that in the event such Person fails to provide any
such endorsement, the Administrative Agent, or the Senior Secured
Notes Trustee, as the case may be, or any of its respective
officers or employees, is hereby irrevocably authorized to make the
same (which authorization, being coupled with an interest, is
irrevocable).
(iv)
Each of the parties hereto
acknowledges that the Lien priorities provided in this Agreement
shall not be affected or impaired in any manner whatsoever,
including, without limitation, on account of (A) the
invalidity, irregularity or unenforceability of all or any part of
the Loan Documents, the Senior Secured Notes Indenture or the
Senior Secured Notes; (B) any amendment, change or
modification of any Loan Document, the Senior Secured Notes
Indenture or the Senior Secured Notes; or (C) any impairment,
modification, change, exchange, release or subordination of or
limitation on, any liability of, or stay of actions or lien
enforcement proceedings against, any Credit Party, its property, or
its estate in bankruptcy resulting from any bankruptcy,
arrangement, readjustment, composition, liquidation,
rehabilitation, similar proceeding or otherwise involving or
affecting any Credit Party.
(b)
Each Collateral
Agent hereby appoints each other as agent for purposes of
perfecting its respective security interests, Liens and claims in
the Collateral (in each case, whether such Collateral was delivered
to the Bank and Note Collateral Agent or the Mortgagee, as the case
may be, prior to, on or after the date hereof), in each case to the
extent that such perfection may be obtained by possession or
control and hereby acknowledges that it holds possession of such
Collateral, including, without limitation, any instruments, for the
benefit of the other Collateral Agent.
(c)
The parties
hereto shall not challenge or question in any proceeding the
validity, perfection, priority or enforceability of this Agreement,
as a whole, or any term or provision contained herein or the
validity or enforceability of any Lien, Mortgage or financing
statement in favor of any Collateral Agent or the relative priority
of any such Lien or Mortgage.
(d)
In the event of
any Refinancing of the Bank Obligations, the Senior Secured Notes
Trustee, for itself and the Senior Secured Noteholders, does hereby
confirm (and, upon request, agrees to reconfirm at any time) the
continued applicability of the provisions hereof, including the
pari passu nature of the Liens securing the Senior Secured Notes
Obligations and the Liens securing any Bank Obligations incurred or
refinanced as a result of such Refinancing. In connection
with any Refinancing of all or any portion of the Secured
Obligations prior to the occurrence of a Bankruptcy Event, the
Senior Secured Notes Trustee, on behalf of itself and each Senior
Secured Noteholder, shall, if requested by Borrower or the existing
or new holders of the Bank Obligations, execute an intercreditor
agreement or amend and restate this Agreement in a manner that is
substantially similar to this Agreement with the lenders under such
Refinancing.
(e)
[Reserved].
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(f)
The Senior
Secured Notes Trustee, on behalf of itself and the Senior Secured
Noteholders, hereby waives any requirement on the part of the Bank
and Note Collateral Agent or the Lenders in respect of marshalling
of assets constituting Collateral upon any exercise of remedies by
the Bank and Note Collateral Agent or the Bank Secured Creditors
and, except as expressly set forth herein, any requirement that the
Bank and Note Collateral Agent or any Bank Secured Creditor
exercise remedies with respect to collateral security for the
Obligations in any particular order or any particular
manner.
(g)
Nothing in this
Agreement shall relieve any Assignor from the performance of any
term, covenant, condition or agreement on such Assignor’s
part to be performed or observed under or in respect of any of the
Collateral pledged by it or from any liability to any Person under
or in respect of any of such Collateral or impose any obligation on
any Collateral Agent to perform or observe any such term, covenant,
condition or agreement on such Assignor’s part to be so
performed or observed or impose any liability on any Collateral
Agent for any act or omission on the part of such Assignor relative
thereto or for any breach of any representation or warranty on the
part of such Assignor contained in this Agreement or any other Loan
Document or the Senior Secured Notes Indenture, or in respect of
the Collateral pledged by it. The obligations of each
Assignor described in this paragraph shall survive the termination
of this Agreement and the discharge of such Assignor’s other
obligations hereunder.
Section 3.
Certain Intercreditor Agreements
Regarding Refinancing of Bank Obligations, Amendments to Loan
Documents and Related Matters .
(a)
The Senior
Secured Notes Trustee agrees, acknowledges and consents that, until
the Bank Obligations are Fully Paid, at any time and from time to
time without the consent of or notice to the Senior Secured Notes
Trustee or any Senior Secured Noteholder and, without incurring
responsibility to the Senior Secured Notes Trustee or any Senior
Secured Noteholder, and without impairing or releasing the
obligations hereunder, any or all of the Loan Documents and/or any
or all of the Bank Obligations thereunder may be Refinanced,
refunded, replaced, amended, extended, renewed, restated,
supplemented or otherwise modified in any way whatsoever,
including, without limitation, to:
(i) shorten or extend the final maturity of
all or any part of the Bank Obligations, (ii) modify the
amortization of the principal amount of all or any part of the Bank
Obligations, (iii) to the extent permitted by the Senior
Secured Notes Indenture, increase the principal amount of the Bank
Obligations, or otherwise provide for additional advances and grant
any lien, mortgage, pledge, hypothecation, collateral assignment,
security interest, encumbrance, charge, deposit arrangement or
other similar encumbrance to secure any such increased indebtedness
and, irrespective of the time, order or method of creation,
attachment or perfection thereof or the filing or recording
thereof, make any such lien, mortgage, pledge, hypothecation,
collateral assignment, security interest, encumbrance, charge,
deposit arrangement or other similar encumbrance, in each case
subject to Section 2 , including the lien priorities
set forth set forth therein, (iv) raise the standard or
default interest rates applicable to all or any part of the Bank
Obligations, (v) impose any additional fees or penalties upon
Borrower or any of its subsidiaries or increase the amount of or
rate for any fees or penalties provided for in the Loan Documents,
(vi) retain or obtain a lien, mortgage, pledge, hypothecation,
collateral assignment, security
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interest, encumbrance, charge, deposit
arrangement or other si
