Exhibit 10.d
SECOND AMENDED AND RESTATED
INTERCREDITOR AGREEMENT
SECOND AMENDED AND RESTATED
INTERCREDITOR AGREEMENT dated as of September 1, 2004, 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 ZELLER USA, INC., a Delaware corporation formerly
known as Zeller Plastik, Inc. (“ Zeller
”) and CITICORP NORTH AMERICA, INC., a New York banking
corporation, as administrative and U.S. collateral agent (together
with its 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. The Program Agent, each Parent
Undertaking Party, the Seller, Crown USA, Risdon, Zeller and
Citicorp North America, Inc., as administrative agent and
collateral agent under the Credit Agreement dated as of February
26, 2003 among Crown Americas, Inc. (f/k/a Crown Cork & Seal
Americas, Inc.), Crown European Holdings S.A., the Parent
Undertaking Parties, certain subsidiaries of the Crown Holdings
party thereto, Citicorp North America, Inc., as administrative
agent, Citibank International plc., as U.K. administrative agent
and the banks and other financial institutions from time to time
party thereto as amended, supplemented or otherwise modified
through the date hereof (the “ Existing Bank Credit
Agreement ”), are parties to that certain Amended and
Restated Intercreditor Agreement dated as of December 5, 2003 (the
“ Existing Intercreditor Agreement
”).
2. Crown USA, Risdon and Zeller
(collectively, the “ U.S. Originators ”)
have agreed to sell, transfer and assign to the Seller from time to
time, and the Seller has agreed to purchase from the U.S.
Originators from time to time, all of the right, title and interest
of the U.S. 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 the date
hereof (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
U.S. Originators, CROWN Metal Packaging Canada LP, the Seller and
Crown USA as the buyer’s initial servicer.
3. 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).
4. As of the date hereof, all loans
outstanding under, and all other amounts due in respect of, the
Existing Bank Credit Agreement have been repaid in full (or
satisfactory arrangements made for such repayment) and the
commitments thereunder have been permanently terminated in
connection with the consummation of the transactions evidenced or
contemplated by the Credit Agreement dated as of the date hereof
among Crown Americas, Inc. (f/k/a Crown Cork & Seal Americas,
Inc.), Crown European Holdings S.A., Crown Holdings and each other
Parent Undertaking Party, certain other subsidiaries of Crown
Holdings party thereto, the Bank Agent, Citibank International plc,
as U.K. administrative 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, including, without limitation,
by any “Joinder Agreement” (as defined therein), the
“ Bank Credit Agreement ”).
5. To secure certain obligations
under the Bank Loan Documents (as hereinafter defined), the U.S.
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) and pursuant to the
Security Agreement (as hereinafter defined), a security interest in
certain collateral, including but not limited to certain inventory
of the U.S. Originators.
6. It is a condition precedent to
the effectiveness of the RPA First Amendment and the Bank Credit
Agreement that the parties hereto enter into this
Agreement.
7. The parties hereto have agreed to
amend and restate the Existing Intercreditor Agreement in its
entirety and 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).
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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 U.S. Originator or
other Loan Party in or upon which a security interest, lien or
mortgage is granted by any U.S. Originator or other Loan Party to
the Bank Agent under any of the Bank Loan Documents.
“ 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 U.S. 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.
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“ 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 Requisite Lenders
or the Bank Agent to demand payment in full of or accelerate the
indebtedness of any Loan Party under the Bank Loan Documents.
A
“ 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.
“ 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.
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“ 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.
“ 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. 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 U.S. Originators, or any of them, to
the Seller under the Receivables Contribution and Sale
Agreement.
“ Purchaser
Claim ” means all obligations of the U.S. Originators
to the Seller and of the U.S. 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.
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“ 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.
“ Requisite
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.
“ Returned Goods
” means all right, title and interest of any U.S. 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.
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“ 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.
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 U.S. 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 U.S. 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 U.S. Originators
from the Seller or to which the U.S. 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 U.S. 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.
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(c) The Bank Agent hereby
acknowledges that each Subordinated Note is subordinated to the
Purchaser Claim pursuant to the terms of the Program
Documents.
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 have and shall
not have any security interest in, lien upon or interest in the
Senior Loan Collateral. Except as otherwise specified in Section
2.01 above, the Bank Agent agrees that it does not have and shall
not have any security interest in, lien upon or interest in the
Purchased Property.
SECTION 2.03. Distribution of
Proceeds . At all times, all proceeds of Senior Loan Collateral
and Purchased Property shall be distributed in accordance with the
following procedure:
(a) Except as otherwise provided in
Section 2.04 or Section 2.01(b), (i) all proceeds of the Senior
Loan Collateral shall be paid to the Bank Agent for application on
the Bank Claim until such Bank Claim has been paid and satisfied in
full in cash, and (ii) any remaining proceeds shall be paid to the
appropriate Loan Party or as otherwise required by applicable
law.
(b) Except as otherwise provided in
Section 2.04 or Section 2.01(b), (i) all proceeds of the Purchased
Property shall be paid to the Program Agent for application in
accordance with the terms of the Receivables Purchase Agreement
against the Purchaser Claim until such Purchaser Claim has been
paid and satisfied in full in cash, and (ii) any remaining proceeds
shall be paid to the Seller or
