INTERCREDITOR AGREEMENT

Exhibit 10.A

 

INTERCREDITOR AGREEMENT

 

Dated as of November 18, 2005

 

Among

 

CITIBANK, N.A., as Program Agent

 

CROWN HOLDINGS, INC.

 

CROWN INTERNATIONAL HOLDINGS, INC.

 

CROWN CORK & SEAL COMPANY, INC.

 

CROWN CORK & SEAL RECEIVABLES (DE) CORPORATION

 

CROWN CORK & SEAL USA, INC.

 

CROWN RISDON USA, INC.

 

CROWN METAL PACKAGING CANADA LP

 

DEUTSCHE BANK AG NEW YORK BRANCH

and THE BANK OF NOVA SCOTIA, as Bank Agent

TABLE OF CONTENTS

 

 

i

 

ii

E XECUTION C OPY

 

INTERCREDITOR AGREEMENT

 

INTERCREDITOR AGREEMENT dated as of November 18, 2005, by and among CITIBANK, N.A., a national banking association, as agent (together with its successors and assigns, the “ Program Agent ”) for the banks and other financial institutions (the “ Purchasers ”) from time to time party to the Receivables Purchase Agreement (as hereinafter defined), CROWN HOLDINGS, INC., a Pennsylvania corporation, (“ Crown Holdings ”), CROWN CORK & SEAL COMPANY, INC., a Pennsylvania corporation (“ CCSC ”) and CROWN INTERNATIONAL HOLDINGS, INC., a Delaware corporation (“ CIH ”, and together with Crown Holdings and CCSC, the “ Parent Undertaking Parties ”, and each, individually, a “ Parent Undertaking Party ”), CROWN CORK & SEAL RECEIVABLES (DE) CORPORATION, a Delaware corporation (the “ Seller ”), CROWN CORK & SEAL USA, INC., a Delaware corporation formerly known as Crown Cork & Seal Company (USA), Inc. (“ Crown USA ”), CROWN RISDON USA, INC., a Delaware corporation formerly known as Risdon-AMS (USA), Inc. (“ Risdon ”), CROWN METAL PACKAGING CANADA LP, a limited partnership organized and existing under the laws of the province of Ontario, Canada (“ Crown (Canada) ”) and DEUTSCHE BANK AG NEW YORK BRANCH, as administrative agent and U.K. administrative agent and THE BANK OF NOVA SCOTIA as Canadian administrative agent (together with their successors and assigns, the “ Bank Agent ”) for the banks and other financial institutions (the “ Lender Parties ”) from time to time party to the Bank Loan Documents (as hereinafter defined).

 

PRELIMINARY STATEMENTS

 

1. Crown USA and Risdon (collectively, the “ U.S. Originators ”) and Crown (Canada) (together with the U.S. Originators, the “ Originators ”) have agreed to sell, transfer and assign to the Seller from time to time, and the Seller has agreed to purchase from the Originators from time to time, all of the right, title and interest of the Originators in and to the Receivables (as hereinafter defined) pursuant to a Second Amended and Restated Receivables Contribution and Sale Agreement dated as of December 5, 2003, as amended by the First Amendment to Second Amended and Restated Receivables Contribution and Sale Agreement dated as of September 1, 2004, and the Second Amendment dated as of August 9, 2005, (such agreement, as so amended and as the same may from time to time be further amended, amended and restated, supplemented or otherwise modified, the “ Receivables Contribution and Sale Agreement ”), among, inter alia , the Originators, the Seller and Crown USA as the buyer’s initial servicer.

 

2. The Purchasers have agreed to purchase from the Seller under a Second Amended and Restated Receivables Purchase Agreement dated as of December 5, 2003, as amended by the First Amendment to Second Amended and Restated Receivables Purchase Agreement dated as of the date hereof (the “ RPA First Amendment ”; such agreement, as so amended by the RPA First Amendment and as the same may from time to time be further amended, amended and restated, supplemented or otherwise modified the “ Receivables Purchase Agreement ”) among the Seller, the Program Agent, the Purchasers and Crown USA, as Servicer, an undivided percentage ownership interest in the Receivables (as hereinafter defined) together with the Related Security and Collections (each as hereinafter defined).

3. In connection with the Credit Agreement dated as of the date hereof among Crown Americas, LLC, Crown European Holdings S.A., Crown Holdings and each other Parent Undertaking Party, certain other subsidiaries of Crown Holdings party thereto, the Bank Agent, and the banks and other financial institutions from time to time party thereto (such agreement, as the same may from time to time be amended, amended and restated, supplemented or otherwise modified, the “ Bank Credit Agreement ”), and pursuant to the Security Agreement (as hereinafter defined), the Originators and the other U.S. Loan Parties (as hereinafter defined) have each granted to the Bank Agent, for the benefit of the Secured Parties (as hereinafter defined), a security interest in certain collateral, including but not limited to certain inventory of the Originators.

 

4. It is a condition precedent to the effectiveness of the Bank Credit Agreement that the parties hereto enter into this Agreement.

 

5. The parties hereto have agreed to enter into this Agreement to set forth provisions regarding the allocation of priorities in, and the enforcement of remedies with respect to, the Purchased Property (as hereinafter defined) and with respect to the Senior Loan Collateral (as hereinafter defined).

 

NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants contained herein, and for other good and valuable consideration, receipt of which is hereby acknowledged, it is hereby agreed as follows:

 

ARTICLE 1

DEFINITIONS

 

SECTION 1.01. Defined Terms. As used in this Agreement, the following capitalized terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined). The term “ Agreement ” shall mean this Intercreditor Agreement, as the same may be amended, supplemented or otherwise modified from time to time.

 

“ Bank Claim ” means all of the indebtedness, obligations and other liabilities of the Loan Parties arising under, or in connection with, the Bank Loan Documents including, but not limited to, all sums now or hereafter lent or advanced to or for the benefit of the Loan Parties thereunder, any interest thereon, any reimbursement obligations, fees or expenses due thereunder, and any costs of collection or enforcement.

 

“ Bank Collateral ” means all property and interests in property now owned or hereafter acquired by any Originator or other Loan Party in or upon which a security interest, lien or mortgage is granted by any Originator or other Loan Party to the Bank Agent under any of the Bank Loan Documents.

 

-2-

“ Bank Loan Documents ” has the meaning ascribed to the term “Loan Documents” in the Bank Credit Agreement.

 

“ Business Day ” has the meaning ascribed to such term in the Receivables Purchase Agreement.

 

“ Certificate ” has the meaning ascribed to such term in the Receivables Purchase Agreement.

 

“ Claim ” means the Bank Claim or the Purchaser Claim, as applicable.

 

“ Collections ” means, with respect to any Receivable, all cash collections and other cash proceeds of such Receivable, including, without limitation, (i) all cash proceeds of the Related Security with respect to such Receivable, and (ii) any Collections of such Receivable deemed to have been received, and actually paid, pursuant to the Receivables Purchase Agreement.

 

“ Company Claim ” means all of the indebtedness, obligations and other liabilities of the Seller to any Originator arising under, or in connection with, the Receivables Contribution and Sale Agreement, including, but not limited to, obligations evidenced by any Subordinated Note, and any costs of collection or enforcement.

 

“ Consent and Agreement ” has the meaning ascribed to such term in the Receivables Purchase Agreement.

 

“ Enforcement ” means, collectively or individually, for (i) the Program Agent on behalf of the Purchasers to declare, following the occurrence of an Event of Termination, the “Commitment Termination Date” to have occurred, and to cease the reinvestment of Collections in the purchase of Receivables, under the Receivables Purchase Agreement, or (ii) the Required Lenders or the Bank Agent to demand payment in full of or accelerate the indebtedness of any Loan Party under the Bank Loan Documents.

 

“ Enforcement Notice ” means a written notice delivered in accordance with Section 2.05 hereof, which notice shall (i) if delivered by the Program Agent, state that the “Commitment Termination Date” has occurred under the Receivables Purchase Agreement following the occurrence of an Event of Termination, specify the nature of such Event of Termination and announce that an Enforcement Period has commenced and (ii) if delivered by the Bank Agent, state that an Event of Default or Event of Termination (as defined in the Bank Credit Agreement) has occurred, specify the nature of such event and announce that an Enforcement Period has commenced.

 

-3-

“ Enforcement Period ” means the period of time following the receipt by the Bank Agent or the Program Agent of an Enforcement Notice delivered by the other of them until the earliest of the following: (1) the Purchaser Claim has been paid and satisfied in full in cash, in the case of an Enforcement Notice delivered by the Program Agent; (2) the Bank Claim has been paid and satisfied in full in cash, in the case of an Enforcement Notice delivered by the Bank Agent; and (3) the parties hereto agree in writing to terminate the Enforcement Period.

 

“ Event of Default ” has the meaning ascribed to such term in the Bank Credit Agreement.

 

“ Event of Termination ” has the meaning ascribed to such term in the Receivables Purchase Agreement.

 

“ Fee Letter ” has the meaning ascribed to such term in the Receivables Purchase Agreement.

 

“ Loan Parties ” has the meaning ascribed to such term in the Bank Credit Agreement.

 

“ Lock-Box Agreement ” has the meaning ascribed to such term in the Receivables Purchase Agreement.

 

“ Lock-Box Account ” has the meaning ascribed to such term in the Receivables Purchase Agreement.

 

“ Lock-Box Bank ” has the meaning ascribed to such term in the Receivables Purchase Agreement.

 

“ Master Assignment Agreement ” has the meaning ascribed to such term in the Receivables Purchase Agreement.

 

“ Obligor ” has the meaning ascribed to such term in the Receivables Purchase Agreement.

 

“ Parent Undertaking ” means an undertaking, substantially in the form of Exhibit I to the Receivables Purchase Agreement, by the Parent Undertaking Parties in favor of the Program Agent and the other Indemnified Parties (as defined in the Receivables Purchase Agreement), as such undertaking may from time to time be amended, amended and restated, supplemented or otherwise modified.

 

“ Person ” means an individual, partnership, corporation (including a business trust), joint stock company, limited liability company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision of agency thereof.

 

-4-

“ Pledged Seller Stock ” means any shares of capital stock or other ownership interests in the Seller that are pledged for the benefit of the Loan Parties under the U.S. Shared Pledge Agreement, U.S. Bank Pledge Agreement or any other Bank Loan Document.

 

“ Program Documents ” means the Receivables Purchase Agreement, the Master Assignment Agreement, the Certificate, the Receivables Contribution and Sale Agreement, the Parent Undertaking, the Subordinated Notes, the Lock-Box Agreements, the Consent and Agreement and the Fee Letter.

 

“Purchased Property ” means (i) the Purchased Receivables and (ii) each Lock-Box Account.

 

“ Purchased Receivables ” means now or hereafter existing Receivables, Related Security and Collections in respect thereof and any other proceeds in respect of Related Security, sold or purported to be sold by the Originators, or any of them, to the Seller under the Receivables Contribution and Sale Agreement.

 

“ Purchaser Claim ” means all obligations of the Originators to the Seller and of the Originators and the Seller and, so long as Crown USA or any of its Affiliates is the Servicer, the Servicer to the Program Agent and the Purchasers arising under, or in connection with, the Program Documents and of the Obligors arising under the Purchased Receivables, including, but not limited to obligations for Collections received, deemed Collections, yield, interest, indemnifications and fees, costs and expenses thereunder, and any costs of collection or enforcement.

 

“ Receivable ” has the meaning ascribed to such term in the Receivables Purchase Agreement.

 

“ Records ” means all Contracts (as defined in the Receivables Purchase Agreement) and other documents, books, records and other information (including, without limitation, computer programs, tapes, disks, punch cards, data processing software and related property and rights) maintained with respect to the Receivables and the related Obligors.

 

“ Related Security ” has the meaning ascribed to such term in the Receivables Purchase Agreement.

 

“ Required Lenders ” has the meaning ascribed to such term in the Bank Credit Agreement.

 

“ Responsible Officer ” of any corporation, partnership or other entity means any officer of such corporation, partnership or other entity responsible for the administration of the obligations of such corporation, partnership or other entity in respect of this Agreement.

 

-5-

“ Returned Goods ” means all right, title and interest of any Originator or the Seller, as applicable, in and to returned, repossessed or foreclosed goods.

 

“ Returned Goods Lien ” has the meaning ascribed to such term in Section 2.01(a).

 

“ Secured Parties ” has the meaning ascribed to such term in the Security Agreement.

 

“ Security Agreement ” means the U.S. Security Agreement dated as of the date hereof among the U.S. Loan Parties and the Bank Agent, as amended, supplemented or otherwise modified from time to time.

 

“ Senior Loan Collateral ” means the portion of Bank Collateral that does not constitute Purchased Property.

 

“ Servicer ” means Crown USA and such successor servicer as is designated by the Program Agent as a replacement servicer under Section 6.01 of the Receivables Purchase Agreement.

 

“ Subordinated Note ” has the meaning ascribed to such term in the Receivables Contribution and Sale Agreement.

 

“ UCC ” means the Uniform Commercial Code as from time to time in effect in the applicable jurisdiction.

 

“ Unsold Receivables ” means accounts receivable of the Loan Parties other than the Purchased Receivables.

 

“ U.S. Loan Parties ” has the meaning ascribed to such term in the Bank Credit Agreement.

 

“ U.S. Pledge Agreement ” has the meaning ascribed to such term in the Bank Credit Agreement.

 

SECTION 1.02. References to Terms Defined in the Program Documents and the Bank Loan Documents . Whenever in Section 1.01 a term is defined by reference to the meaning ascribed to such term in any of the Program Documents or the Bank Loan Documents, then, unless otherwise specified herein, such term shall have the meaning ascribed to such term in the Program Documents or Bank Loan Document, as the case may be, as in existence on the date hereof, without giving effect to any amendments of such term as may hereafter be agreed to by the parties to such documents, unless such amendments comply with Section 2.16.

 

-6-

ARTICLE 2

INTERCREDITOR PROVISIONS

 

SECTION 2.01. Priorities with Respect to Purchased Property .

 

(a) Notwithstanding any provision of the UCC or any other applicable law or any of the Bank Loan Documents or the Program Documents, the Bank Agent hereby agrees that, upon the sale or other transfer of an interest in any Receivable by any of the Originators to the Seller, any lien, claim, encumbrance, security interest or other interest or right acquired by the Bank Agent or any Secured Party in such Receivable and proceeds thereof (other than the proceeds of such sale or other transfer by the Originators to the Seller) shall automatically and without further action cease and be released and the Bank Agent and the Secured Parties shall have no lien, claim, encumbrance, security interest or other interest or right therein; provided, however, that nothing in this Section 2.01 shall be deemed to constitute a release by the Bank Agent of: (i) its lien on and security interest in the proceeds received by the Originators from the Seller or to which the Originators are entitled from the Seller for the sale of the Receivables (including, without limitation, cash payments made by the Seller and any Subordinated Note issued by the Seller in favor of an Originator, each in connection with such sales); (ii) any lien, claim, encumbrance, security interest or other interest or right the Bank Agent has in any Unsold Receivables and the proceeds thereof, including, without limitation, Collections of Unsold Receivables and Related Security therefor; (iii) any lien, claim, encumbrance, security interest or other interest or right the Bank Agent may have in any Subordinated Note; and (iv) any lien, claim, encumbrance, security interest or other interest or right (collectively, a “ Returned Goods Lien ”) the Bank Agent may have in any Returned Goods.

 

(b) All interests of the Purchasers in Returned Goods under the Program Documents shall in all respects be junior and subordinate to any Returned Goods Lien in such Returned Goods, except that during any period in which an Event of Termination under the Receivables Purchase Agreement shall have occurred and be continuing, such Returned Goods Lien shall be junior and subordinate to all interests of the Purchasers under the Program Documents in any Returned Goods which have not been commingled with Senior Loan Collateral. As among the Purchasers on the one hand and the Bank Agent on the other hand, all proceeds of any Returned Goods shall be distributed first to the party whose position is designated as senior in the preceding sentence and second to the party whose position is designated as junior in the preceding sentence.

 

(c) The Bank Agent hereby acknowledges that each Subordinated Note is subordinated to the Purchaser Claim pursuant to the terms of the Program Documents.

 

-7-

SECTION 2.02. Respective Interests in Purchased Property and Senior Loan Collateral . Except for all rights of access to and use of Records granted to the Program Agent and the Purchasers pursuant to the Program Documents, the Program Agent agrees that it does not hav