Exhibit 4.4
AMENDED AND RESTATED INTERCREDITOR AND COLLATERAL AGENCY
AGREEMENT
This AMENDED AND RESTATED
INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT, dated as of December
20, 2006, is entered into among CITICORP USA, INC. (“
Citicorp ”), as administrative agent for the
Multi-Currency Lenders (as defined below) and Issuing Lenders (as
defined below) (in such capacity, the “ Multi-Currency
Administrative Agent ”), CITICORP, as administrative
agent for the Term Loan Lenders (as defined below) (in such
capacity, the “ Term Loan Administrative Agent
”; together with the Multi-Currency Administrative Agent, the
“ Administrative Agents ”), CITICORP, as
collateral agent for the Secured Parties (in such capacity, the
“ Collateral Agent ”), REVLON, INC. (“
Revlon ”), REVLON CONSUMER PRODUCTS CORPORATION (the
“ Company ”) and each other Loan
Party.
W I T N E S S E T H :
WHEREAS, the Company, certain of its
subsidiaries, the lenders (“ Multicurrency Lenders
”) and issuing lenders (the “ Issuing Lenders
”) party thereto, the Multi-Currency Administrative Agent and
the Collateral Agent, are parties to the Credit Agreement, dated as
of July 9, 2004 (as such agreement has been or may be amended,
restated, supplemented, renewed or otherwise modified from time to
time, together with any other agreements pursuant to which any of
the Indebtedness, commitments, obligations, costs, expenses, fees,
reimbursements, indemnities or other obligations payable or owing
thereunder may be refinanced, restructured, renewed, extended,
increased, refunded or replaced, the “ Existing Credit
Agreement ”);
WHEREAS, the Company has requested
that the Term Loan Facility under, and as defined in, the Existing
Credit Agreement be refinanced pursuant to the Term Loan Agreement,
dated as of December 20, 2006 (as such agreement may be amended,
restated, supplemented, renewed or otherwise modified from time to
time, together with any other agreements pursuant to which any of
the Indebtedness, commitments, obligations, costs, expenses, fees,
reimbursements, indemnities or other obligations payable or owing
thereunder may be refinanced, restructured, renewed, extended,
increased, refunded or replaced, the “ Term Loan
Agreement ”, and together with the Existing Credit
Agreement, the “ Credit Agreements ”), among the
Company, as borrower, the lenders (the “ Term Loan
Lenders ”; together with the Multi-Currency Lenders and
the Issuing Lenders, the “ Lenders ”) party
thereto, the Term Loan Administrative Agent and the Collateral
Agent, and JPMorgan Chase Bank, N.A., as syndication agent, to
provide for $840,000,000 in term loans;
WHEREAS, the Existing Credit
Agreement is being amended pursuant to Amendment No. 4 to Credit
Agreement, dated as of December 20, 2006 (the “
Amendment ”), to permit the Company to borrow term
loans under the Term Loan Agreement and to make such other changes
to the terms of the Existing Credit Agreement as are provided in
such amendment;
WHEREAS, it is a condition precedent
to (i) the effectiveness of the Amendment and (ii) the obligation
of the Term Loan Lenders to make their respective extensions of
credit to the Company under the Term Loan Agreement that the Loan
Parties shall have executed and delivered this Agreement to the
Collateral Agent;
WHEREAS, this Agreement, on the
terms and subject to the conditions set forth herein, shall amend
and restate, in its entirety, the intercreditor and collateral
agency agreement dated as of July 9, 2004 (as amended, supplemented
or otherwise modified from time to time prior to the date hereof,
the “ Existing Intercreditor Agreement ”)
entered into by the parties hereto;
NOW, THEREFORE, in consideration of
the premises and the covenants and agreements contained herein, the
parties hereto hereby agree as follows:
Section 1.
Definitions
1.1
Definitions
(a)
Unless otherwise defined herein,
terms are used herein as defined in the Existing Credit Agreement
or the Term Loan Agreement, as the context may require. In
addition, as used in this Agreement, the following terms shall have
the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms
defined):
“ Agent ” shall
mean each of the Senior Agent, the Junior Agent and the Collateral
Agent.
“ Agreement ”
shall mean this Amended and Restated Intercreditor and Collateral
Agency Agreement, as amended, restated, supplemented or otherwise
modified from time to time in accordance with the terms
hereof.
“ Bankruptcy Code
” shall mean title 11, United States Code.
“ Bankruptcy Law
” shall mean the Bankruptcy Code, or any similar federal,
state or foreign Requirement of Law for the relief of debtors or
any arrangement, reorganization, insolvency, moratorium, assignment
for the benefit of creditors, any other marshalling of the assets
and liabilities of the Company or any other Loan Party or any
similar law relating to or affecting the enforcement of
creditors’ rights generally.
“ Collateral ”
shall mean, collectively, the Multi-Currency Collateral and the
Term Loan Collateral.
“ Collateral Agent
” shall include, in addition to the Collateral Agent referred
to in the recitals hereto, any successors and assigns to the
Collateral Agent permitted hereunder.
“ Collateral Documents
” shall mean this Agreement, the Security Documents, the
Senior Documents, the Junior Documents and all other security
agreements, pledge agreements, mortgages, guaranties and other
documents executed and/or delivered by the Loan Parties and
accepted by the Collateral Agent.
“ Existing Credit
Agreement ” shall have the meaning set forth in the
recitals to this Agreement.
“ Insolvency Proceeding
” shall mean, collectively, (a) any voluntary or
involuntary case or proceeding under the Bankruptcy Law with
respect to the Company or any other Loan Party, (b) any other
voluntary or involuntary insolvency, reorganization or bankruptcy
case or proceeding, or any receivership, liquidation,
reorganization or other similar case or proceeding with respect to
the Company or any other Loan Party or with respect to any of their
respective assets, (c) any liquidation, dissolution,
reorganization or winding up of the Company or any Loan Party,
whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy (except as permitted by Section
11.5 (or other applicable successor provision) of
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either Credit Agreement), and
(d) any assignment for the benefit of creditors or any other
marshaling of assets and liabilities of the Company or any other
Loan Party.
“ Junior Agent ”
shall mean (a) with respect to any Multi-Currency Claim or any
Multi-Currency Collateral, the Term Loan Administrative Agent and
(b) with respect to any Term Loan Claim or any Term Loan
Collateral, the Multi-Currency Administrative Agent.
“ Junior Claims ”
shall mean (a) with respect to any Multi-Currency Collateral, all
Term Loan Claims and (b) with respect to any Term Loan Collateral,
all Multi-Currency Claims.
“ Junior Documents
” shall mean, collectively, with respect to any Junior Claim,
any provision pertaining to such Junior Claim in any Loan Document
or any other document, instrument or certificate evidencing or
delivered in connection with such Junior Claim.
“ Junior Liens ”
shall mean (a) with respect to the Multi-Currency Collateral, all
Liens securing the Term Loan Claims and (b) with respect to the
Term Loan Collateral, all Liens securing the Multi-Currency
Claims.
“ Junior Secured
Parties ” shall mean (a) with respect to the
Multi-Currency Collateral, all Term Loan Secured Parties and (b)
with respect to the Term Loan Collateral, all Multi-Currency
Secured Parties.
“ Loan Documents
” means, collectively, the Multi-Currency Loan Documents and
the Term Loan Documents.
“ Multi-Currency
Administrative Agent ” shall include, in addition to the
Multi-Currency Administrative Agent referred to in the recitals
hereto, (a) any successors and assigns thereto or any acting
administrative agent, in each case, as permitted under the Existing
Credit Agreement, and (b) if there is no acting Multi-Currency
Administrative Agent, the Required Lenders (as defined in the
Existing Credit Agreement).
“ Multi-Currency Claims
” shall mean all Multi-Currency Secured Obligations and all
extensions of credit under any financing, or any arrangement for
use of cash collateral, under any Bankruptcy Law extended or
provided to any Loan Party by the Multi-Currency
Lenders.
“ Multi-Currency
Collateral ” shall mean, collectively, the “
Multi-Currency Collateral, ” as defined in the Pledge
and Security Agreement, the Charged Assets (as defined in the
Multi-Currency Debenture), any Real Property of the Loan Parties
constituting Collateral (as defined in the Existing Credit
Agreement) and any other Collateral (as defined in the Existing
Credit Agreement) of the same type.
“ Multi-Currency
Debenture ” means that certain Multi-Currency Debenture,
dated as of July 9, 2004, between the Company, Charles Revson Inc.,
Charles of the Ritz Group Ltd. and Revlon International Corporation
(UK Branch), as Chargors, and the Collateral Agent.
“ Multi-Currency Eligible
Obligation Holder ” shall mean each holder of any
Multi-Currency Eligible Obligation.
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“ Multi-Currency Eligible
Obligation ” shall mean each Designated Eligible
Obligation designated as a “ Multi-Currency Eligible
Obligation ” by the Company to the Agents from time to
time pursuant to Section 10.1 .
“ Multi-Currency Loan
Documents ” means the Loan Documents (as defined in the
Existing Credit Agreement).
“ Multi-Currency Secured
Obligations ” shall have the meaning set forth in the
Pledge and Security Agreement.
“ Multi-Currency Secured
Party ” shall have the meaning set forth in the Pledge
and Security Agreement.
“ Notice of Actionable
Default ” shall mean a written certification identified
as a “ Notice of Actionable Default, ”
substantially in the form attached hereto as Exhibit B or
such other form reasonably satisfactory to the Collateral Agent,
from any Administrative Agent addressed to the Collateral Agent
certifying that an Event of Default has occurred and is continuing
under the Existing Credit Agreement or the Term Loan Agreement, as
the case may be, and that any required notice thereof has been
given and any grace periods provided for therein have
expired.
“ pay in full, ”
“ paid in full ” or “ payment in
full ” shall mean with respect to any Secured Claims, the
payment in full in cash of the principal of, accrued (but unpaid)
interest and premium, if any, on all such Secured Claims and, with
respect to letters of credit outstanding thereunder, delivery of
cash collateral or backstop letters of credit in respect thereof in
compliance with the relevant Collateral Documents, in each case,
after or concurrently with termination of all Commitments (as
defined in the Existing Credit Agreement) or Term Loan Commitments,
as the case may be, thereunder and payment in full in cash of any
other such Secured Claims that are due and payable at or prior to
the time such principal and interest are paid.
“ Required Secured
Parties ” means, collectively, the Required Lenders (as
defined in the Existing Credit Agreement) and the Required Lenders
(as defined in the Term Loan Agreement).
“ Secured Claims
” shall mean, collectively, the Multi-Currency Claims and the
Term Loan Claims.
“ Secured Parties
” shall mean, collectively, the Senior Secured Parties and
the Junior Secured Parties.
“ Senior Agent ”
shall mean (a) with respect to any Multi-Currency Claim or any
Multi-Currency Collateral, the Multi-Currency Administrative Agent
and, after the payment in full of the Multi-Currency Claims, the
Term Loan Administrative Agent and (b) with respect to any Term
Loan Claim or any Term Loan Collateral, the Term Loan
Administrative Agent and, after the payment in full of the Term
Loan Claims, the Multi-Currency Administrative Agent.
“ Senior Claims ”
shall mean (a) with respect to any Multi-Currency Collateral, all
Multi-Currency Claims and (b) with respect to any Term Loan
Collateral, all Term Loan Claims. “ Senior
Claims ” shall include all interest accrued or accruing
(or which would, absent the
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commencement of an Insolvency
Proceeding, accrue) after the commencement of an Insolvency
Proceeding in accordance with and at the rate specified in the
Senior Documents whether or not the claim for such interest is
allowed as a claim in such Insolvency Proceeding. To the
extent any payment with respect to the Senior Claims (whether by or
on behalf of any Loan Party, as proceeds of security, enforcement
of any right of setoff or otherwise) is declared to be fraudulent
or preferential in any respect, set aside or required to be paid to
a debtor in possession, trustee, receiver or similar Person, then
the obligation or part thereof originally intended to be satisfied
shall be deemed to be reinstated and outstanding as if such payment
had not occurred.
“ Senior Collateral
” shall mean (a) with respect to any Junior Secured Party,
any Collateral on which it has a Junior Lien and (b) with respect
to any Senior Secured Party, any Collateral on which it has a
Senior Lien.
“ Senior Documents
” shall mean, collectively, with respect to any Senior Claim,
any provision pertaining to such Senior Claim in any Loan Document
or any other document, instrument or certificate evidencing or
delivered in connection with such Senior Claim.
“ Senior Liens ”
shall mean (a) with respect to the Multi-Currency Collateral, all
Liens securing the Multi-Currency Claims and (b) with respect to
the Term Loan Collateral, all Liens securing the Term Loan
Claims.
“ Senior Secured
Parties ” shall mean (a) with respect to the
Multi-Currency Collateral, all Multi-Currency Secured Parties and
(b) with respect to the Term Loan Collateral, all Term Loan Secured
Parties.
“ Term Loan Administrative
Agent ” shall include, in addition to the Term Loan
Administrative Agent referred to in the recitals hereto, (a) any
successors and assigns thereto or any acting Term Loan
Administrative Agent, in each case, as permitted under the Term
Loan Agreement, and (b) if there is no acting Term Loan
Administrative Agent, the Required Lenders (as defined in the Term
Loan Agreement).
“ Term Loan Claims
” shall mean all Term Loan Secured Obligations and all
extensions of credit under any financing, or any arrangement for
use of cash collateral, under any Bankruptcy Law extended or
provided to any Loan Party by the Term Loan Lenders.
“ Term Loan Collateral
” shall have the meaning set forth in the Pledge and Security
Agreement, the Charged Assets (as defined in the Term Loan
Debenture) and any other Collateral (as defined in the Term Loan
Agreement) of the same type.
“ Term Loan Commitments
” shall have the meaning set forth in the Term Loan
Agreement, and shall also mean the commitments to provide
extensions of credit under any agreement that refinances,
restructures, renews, extends, increases, refunds or replaces the
Term Loan Agreement.
“ Term Loan Agreement
” shall have the meaning set forth in the recitals to this
Agreement.
“ Term Loan Debenture
” means that certain Term Loan Debenture, dated as of
December 20, 2006, among the Company, Charles Revson Inc., Charles
of the Ritz Group Ltd. and Revlon International Corporation (UK
Branch), as Chargors, and the Collateral Agent.
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“ Term Loan Documents
” means the Loan Documents (as defined in the Term Loan
Agreement).
“ Term Loan Eligible
Obligation Holder ” shall mean each holder of any Term
Loan Eligible Obligation.
“ Term Loan Eligible
Obligation ” shall mean each Designated Eligible
Obligation (other than a Multi-Currency Eligible
Obligation).
“ Term Loan Secured
Obligations ” shall have the meaning set forth in the
Pledge and Security Agreement.
“ Term Loan Secured
Party ” shall have the meaning set forth in the Pledge
and Security Agreement.
“ Undesignated ”
shall mean, at any time, with respect to any obligation designated
by the Company as a Designated Eligible Obligation hereunder, that
such designation has been revoked at or before such time in
accordance with Section 10.1 .
“ Uniform Commercial
Code ” or “ UCC ” shall mean the
Uniform Commercial Code of the State of New York, as
amended.
1.2
Certain Other
Terms
(a)
The terms “ herein,
” “ hereof, ” “ hereto
” and “ hereunder ” and similar terms
refer to this Agreement as a whole and not to any particular
Article, Section, subsection or clause in this
Agreement.
(b)
References herein to an Annex,
Schedule, Article, Section, subsection or clause, unless
specifically stated otherwise, refer to the appropriate Annex or
Schedule to, or Article, Section, subsection or clause in this
Agreement.
(c)
Where the context requires,
provisions relating to any Collateral, when used in relation to any
Loan Party, shall refer to such Loan Party’s Collateral or
any relevant part thereof.
(d)
Any reference in this Agreement to a
Loan Document shall include all appendices, exhibits and schedules
thereto, and, unless specifically stated otherwise, all amendments,
restatements, supplements or other modifications thereto or
replacements thereof, and as the same may be in effect at any time
such reference becomes operative.
(e)
The term “ including
” means “ including, without limitation ”
except when used in the computation of time periods.
(f)
References in this Agreement to any
statute shall be to such statute as amended or modified and in
effect from time to time.
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Section 2.
Collateral
Agent
2.1
Appointment
. Each Secured Party hereby
appoints Citicorp as the Collateral Agent hereunder and authorizes
the Collateral Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement and the other
Collateral Documents as are delegated to the Collateral Agent under
such documents and to exercise such powers as are reasonably
incidental thereto. Without limiting the foregoing, each
Secured Party hereby authorizes the Collateral Agent to execute and
deliver, and to perform its obligations under, each of the
Collateral Documents to which the Collateral Agent is a party, to
exercise all rights, powers and remedies that the Collateral Agent
may have under such documents and to act as agent for the Secured
Parties under such Collateral Documents.
2.2
Actions; Direction of
Administrative Agents .
(a)
Except as set forth in Section
2.2(b) , the Collateral Agent shall take, or refrain from
taking, any action as directed in writing (i) by the applicable
Administrative Agent as designated in the Existing Credit Agreement
or the Term Loan Agreement, as applicable, or any other Loan
Document with respect to such action, (ii) collectively by the
Administrative Agents or (iii) in the absence of such events, with
respect to any Collateral (and any provision of the Collateral
Documents related thereto), (A) until the payment in full of the
Senior Claims in respect of such Collateral, by the Senior Agent
and (B) thereafter, the Junior Agent.
(b)
From and after the receipt of any
Notice of Actionable Default and prior to the withdrawal of all
pending Notices of Actionable Default, the Collateral Agent shall
take, or refrain from, taking any action, with respect to any
Collateral (and any provision of the Collateral Documents related
thereto), as directed in writing (i) until the payment in full of
the Senior Claims in respect of such Collateral, by the Senior
Agent and (ii) thereafter, the Junior Agent. Each
Administrative Agent, in the event all of the Events of Default
giving rise to any Notice of Actionable Default issued by such
Administrative Agent has been cured or waived or otherwise has
ceased to exist pursuant to the Existing Credit Agreement or the
Term Loan Agreement, as applicable, shall withdraw such Notice of
Actionable Default by written notice to the Collateral
Agent.
(c)
Each Administrative Agent shall
promptly send to the other Administrative Agent a copy of any
written directions given by such Administrative Agent pursuant to
this Section 2.2 ; provided , however , that
the failure to comply with this Section 2.2(c) shall not
impair any of the rights, powers and remedies of such
Administrative Agent or the Collateral Agent under any Collateral
Document.
(d)
Notwithstanding anything to the
contrary provided herein or in the Collateral Documents, the
Collateral Agent shall not be obligated to take, or refrain from
taking, any action (i) to the extent the Collateral Agent has
received a written advice from its counsel that such action is in
conflict with any applicable law, Collateral Document or order of
any Governmental Authority or (ii) with respect to which the
Collateral Agent, in its reasonable judgment, has not received
adequate security or indemnity hereunder or under the Collateral
Documents.
(e)
Nothing in this Section 2.2
shall impair the right of the Collateral Agent in its discretion to
take or omit to take any action which is deemed proper by the
Collateral Agent under the Collateral Documents and which it
believes in good faith is not inconsistent with any
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direction of the applicable
Administrative Agent delivered pursuant to this Section 2.2
; provided , however , the Collateral Agent shall not
be under any obligation to take any discretionary action under the
provisions of this Agreement or any other Collateral Document
unless so directed by the applicable Administrative
Agent.
2.3
Limitation on Duties
.
(a)
The Collateral Agent shall be
obliged to perform only such duties as are specifically set forth
in this Agreement or any other Collateral Document, and no implied
covenants or obligations shall be read into any Collateral Document
against the Collateral Agent. The Collateral Agent shall,
upon receipt of any written direction pursuant to Section
2.2 , exercise the rights and powers vested in it by any
Collateral Document with respect to such direction, and the
Collateral Agent shall not be liable with respect to any action
taken or omitted in accordance with such direction. If the
Collateral Agent shall seek directions from any Administrative
Agent or the Lenders with respect to any action under any
Collateral Document, the Collateral Agent shall not be required to
take, or refrain from taking, such action until it shall have
received such direction.
(b)
The Collateral Agent’s sole
duty with respect to the custody, safekeeping and physical
preservation of the Collateral in its possession shall be to deal
with it in the same manner as with similar property for its own
account. The powers conferred on the Collateral Agent
hereunder and under the Collateral Documents are solely to protect
the Collateral Agent’s interest in the Collateral (for itself
and for the benefit of the Secured Parties) and, except as
expressly set forth herein, shall not impose any duty upon the
Collateral Agent to exercise any such powers. The Collateral
Agent shall be accountable only for amounts that it actually
receives as a result of the exercise of such powers at the
direction of the applicable Administrative Agent, and neither the
Collateral Agent nor any of its officers, directors, employees or
agents shall be responsible to any Secured Party or any Loan Party
for any act or failure to act hereunder, except for its own gross
negligence or willful misconduct.
2.4
Resignation and
Removal .
(a)
The Collateral Agent may resign at
any time by giving written notice thereof to the Lenders and the
Company. The Collateral Agent may be removed at any time by
the Administrative Agents, acting jointly, or the Required Secured
Parties, by giving written notice thereof to the Collateral Agent
and the Company. Upon any such resignation or removal, the
Administrative Agents, acting jointly, or the Required Secured
Parties shall have the right to appoint a successor Collateral
Agent. If no successor Collateral Agent shall have been so
appointed, and shall have accepted such appointment, within 30 days
following the notice of resignation or removal, then the retiring
Collateral Agent may, on behalf of the Secured Parties, appoint a
successor Collateral Agent. In either case, such appointment
shall be subject to the prior written approval of the Company
(which approval may not be unreasonably withheld or delayed and
shall not be required upon the occurrence and during the
continuance of an Event of Default).
(b)
Upon the acceptance of any
appointment as the Collateral Agent by a successor Collateral
Agent, such successor Collateral Agent shall succeed to, and become
vested with, all the rights, powers, privileges and duties of the
retiring Collateral Agent, and the retiring Collateral Agent shall
be discharged from its duties and obligations under this Agreement,
the Credit Agreements and the Collateral Documents. Promptly
after any retiring Collateral
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Agent’s resignation or removal
hereunder as Collateral Agent, the retiring Collateral Agent shall
take such action as may be reasonably necessary to assign to the
successor Collateral Agent its rights as Collateral Agent under the
Collateral Documents and to protect and maintain the Liens held by
the Collateral Agent for the benefit of the Secured Parties
(including delivery of any Collateral in its possession to the
successor Collateral Agent). After such resignation, the
retiring Collateral Agent shall continue to have the benefit of
Section 8 as to any actions taken or omitted to be taken by
it while it was Collateral Agent under this Agreement, the Credit
Agreements and the Collateral Documents.
(c)
If no Person has accepted
appointment as a successor Collateral Agent within 30 days
following the notice of resignation or removal, the retiring
Collateral Agent’s resignation or removal shall nevertheless
thereupon become effective, and the Administrative Agents, jointly,
shall assume and perform all of the duties of the retiring
Collateral Agent hereunder until such time, if any, as the
Administrative Agents or the Required Secured Parties shall appoint
a successor Collateral Agent as provided for above.
Section 3.
Priority of
Liens
3.1
Lien Subordination
. Notwithstanding the date,
manner or order of grant, attachment or perfection of any Junior
Lien in respect of any Collateral or of any Senior Lien in respect
of any Collateral and notwithstanding any provision of the UCC, any
applicable law, any Collateral Document, any alleged or actual
defect or deficiency in any of the foregoing or any other
circumstance whatsoever, the Junior Agent, on behalf of each Junior
Secured Party, in respect of such Collateral hereby agrees
that:
(a)
any Senior Lien in respect of such
Collateral, regardless of how acquired, whether by grant, statute,
operation of law, subrogation or otherwise, shall be and shall
remain senior and prior to any Junior Lien in respect of such
Collateral (whether or not such Senior Lien is subordinated to any
Lien securing any other obligation); and
(b)
any Junior Lien in respect of such
Collateral, regardless of how acquired, whether by grant, statute,
operation of law, subrogation or otherwise, shall be junior and
subordinate in all respects to any Senior Lien in respect of such
Collateral.
3.2
Prohibition on Contesting
Liens . In respect
of any Collateral, the Junior Agent, on behalf of each Junior
Secured Party, in respect of such Collateral agrees that it shall
not, and hereby waives any right to:
(a)
contest, or support any other Person
in contesting, in any proceeding (including any Insolvency
Proceeding), the priority, validity or enforceability of any Senior
Lien on such Collateral; or
(b)
demand, request, plead or otherwise
assert or claim the benefit of any marshalling, appraisal,
valuation or similar right which it may have in respect of such
Collateral or the Senior Liens on such Collateral, except to the
extent that such rights are expressly granted in this
Agreement.
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3.3
New Liens .
(a)
The parties hereto agree that, prior
to the payment in full of the Secured Claims, any Lien on any asset
of any Loan Party securing any Secured Claim (and which asset is
not also subject to a Lien securing all of the Secured Claims in
accordance with the priorities set forth herein) shall immediately
be released upon demand by any Agent or assigned to the Collateral
Agent on behalf of the Secured Parties, subject to the priorities
set forth in Section 2.1 , and, at all times prior to such
release or assignment, the Secured Party to whom such Lien was
granted shall be acting as a sub-agent of the Collateral Agent for
the sole purpose of perfecting the Lien on such asset.
(b)
Each Loan Party hereby agrees not to
grant, or to permit any of its Subsidiaries to grant, except as
expressly permitted by either Credit Agreement, as the case may be,
any Lien on any of its respective assets securing the Senior Claims
or the Junior Claims, as the case may be, to any Person other than
the Collateral Agent on behalf of the Secured Parties, subject to
the priorities set forth in Section 2.1 .
3.4
Separate Liens
. Each of the parties hereto
acknowledges and agrees that (i) the grants of Liens pursuant to
the Collateral Documents constitute separate and distinct grants of
Liens and (ii) because of, among other things, their differing
rights in the Collateral, the Junior Claims in respect of any
Collateral are fundamentally different from the Senior Claims in
respect of such Collateral, and the Junior Claims and Senior Claims
in respect of any Collateral must be separately classified in any
Insolvency Proceeding. To further effectuate the intent of
the parties as provided in the immediately preceding sentence, if
it is held that, in respect of any Collateral, the Junior Claims
and the Senior Claims in respect of such Collateral constitute only
one secured claim (rather than separate classes of senior and
junior secured claims), then the Junior Secured Parties hereby
acknowledge and agree that all distributions shall be made as if
there were separate classes of senior and junior secured claims
against the Loan Parties in respect of any Collateral (with the
effect that, to the extent that the aggregate value of the Senior
Collateral is sufficient (for this purpose ignoring all claims held
by the Junior Secured Parties), the Senior Secured Parties shall be
entitled to receive, in addition to amounts distributed to them in
respect of principal, pre-petition interest and other claims, all
amounts owing in respect of post-petition interest before any
distribution is made in respect of the claims held by the Junior
Secured Parties with respect to the Senior Collateral, with the
Junior Secured Parties hereby acknowledging and agreeing to turn
over to the Senior Secured Parties amounts otherwise received or
receivable by them to the extent necessary to effectuate the intent
of this sentence, even if such turnover has the effect of reducing
the claim or recovery of the Junior Secured Parties).
Section 4.
Exercise of
Remedies
4.1
Remedies .
(a)
Prior to the payment in full of the
Senior Claims in respect of any Collateral, whether or not any
Insolvency Proceeding has been commenced by or against any Loan
Party, with respect to such Collateral:
(i)
no Junior Secured Party shall (or
direct the Collateral Agent to) (A) exercise or seek to exercise
any rights or remedies, (B) institute any action or proceeding with
respect to such rights or remedies, including any action
of
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foreclosure, contest, protest, (C)
object to any foreclosure proceeding or action brought by
Collateral Agent or any Senior Secured Party or any other exercise
of any rights and remedies relating to such Collateral under the
Collateral Documents or otherwise, or (D) object to the forbearance
by the Senior Secured Parties from bringing or pursuing any
foreclosure proceeding or action or any other exercise of any
rights or remedies relating to such Collateral; and
(ii)
the Senior Agent, on behalf of the
Senior Secured Parties, shall have the exclusive right to (and the
exclusive right to direct the Collateral Agent to) enforce rights,
exercise remedies and make determinations regarding release,
disposition (including under §363(f) of the Bankruptcy Code)
or restrictions with respect to such Collateral without any
consultation with, or the consent of, any Junior Secured
Party.
(b)
In exercising rights and remedies
with respect to any Collateral, the Senior Agent, on behalf of the
Senior Secured Parties, in respect of such Collateral may enforce
(and direct the Collateral Agent to enforce) the provisions of the
Senior Documents and exercise remedies thereunder, all in such
order and in such manner as they may determine in the exercise of
their sole discretion. Such exercise and enforcement shall
include, without limitation, the rights of an agent appointed by
them to sell or otherwise dispose of such Collateral upon
foreclosure, to incur expenses in connection with such sale or
disposition, and to exercise all the rights and remedies of a
secured lender under the UCC of any applicable jurisdiction and of
a secured creditor under any Bankruptcy Law.
(c)
The Junior Agent, on behalf of each
Junior Secured Party, in respect of any Collateral agrees that,
prior to the payment in full of the Senior Claims in respect of
such Collateral, it will not take or receive any such Collateral or
any proceeds of such Collateral in connection with the exercise of
any right or remedy (including setoff) with respect to such
Collateral. Without limiting the generality of the foregoing,
prior to the payment in full of the Senior Claims in respect of any
Collateral, the sole right of the Junior Agent and the Junior
Secured Parties with respect to such Collateral shall be the right
to receive a share of the proceeds thereof pursuant to Section
5.1 .
(d)
The Junior Agent, on behalf of each
Junior Secured Party, in respect of any Collateral (i) agrees that
neither it nor any Junior Secured Party will take any action that
would hinder any exercise of remedies undertaken by any Senior
Secured Party in respect of such Collateral under the Collateral
Documents, including any sale, lease, exchange, transfer or other
disposition of such Collateral, whether by foreclosure or
otherwise, and (ii) hereby waives any and all rights it or any
Junior Secured Party may have as a junior creditor or otherwise to
object to the manner in which any Senior Secured Party may seek to
enforce or collect the Senior Claims or the Liens granted in any of
such Collateral.
4.2
Exercise of
Remedies
