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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 as Unsecured Creditors .
Notwithstanding anything to the contrary in this Agreement,
each Junior Secured Party may exercise its rights and remedies as
an unsecured creditor against the Loan Parties in accordance with
the terms of the Junior Documents and applicable law. In the
event any Junior Secured Party in respect of any Collateral becomes
a judgment lien creditor in respect of such Collateral as a result
of its enforce
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