Exhibit 4.36
INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT
This INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT, dated as of
July 9, 2004, is entered into among
CITICORP USA, INC. ("Citicorp"), as
administrative agent for the Multi-Currency
Lenders and Issuing Lenders (in
such capacity, the "Multi-Currency
Administrative Agent"), CITICORP, as
administrative agent for the Term Loan
Lenders (in such capacity, the "Term
Loan Administrative Agent"), 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
and
Issuing Lenders party thereto from time to
time, the Multi-Currency
Administrative Agent, the Term Loan
Administrative Agent and the Collateral
Agent have entered into the Credit
Agreement, dated as of the date hereof (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 "Credit
Agreement"); and
WHEREAS, it is a condition to the initial extensions of credit
under the Credit Agreement that the parties
hereto execute and deliver this
Agreement;
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 Credit Agreement. 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 Intercreditor 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.
"Credit Agreement" shall have the meaning set forth in the
recitals to this Agreement.
"Insolvency or Liquidation 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 of the
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.
"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 Multi-Currency
Administrative Agent, in each case, as
permitted under the Credit Agreement,
and (b) if there is no acting
Multi-Currency Administrative Agent, the
Required Multi-Currency Lenders.
"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 Grantors constituting
Collateral (as defined in the Credit
Agreement) and any other Collateral (as
defined in the 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.
"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 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 Credit Agreement 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 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.
"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 commencement of an Insolvency
or Liquidation Proceeding, accrue) after
the commencement of an Insolvency or
Liquidation 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 or Liquidation
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 Credit
Agreement, and (b) if there is no
acting Term Loan Administrative Agent, the
Required Term Loan Lenders.
"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 Credit Agreement) of the
same type.
"Term Loan Debenture" means that certain Term Loan Debenture,
dated
as of July 9, 2004, among the Company,
Charles Revson Inc., Charles of the Ritz
Group Ltd. and Revlon International
Corporation (UK Branch), as Chargors, and
the Collateral Agent.
"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, 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.
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 Credit Agreement 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 Credit Agreement, 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 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 Lenders 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 Lenders
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
Agreement and the Collateral Documents.
Promptly after any retiring Collateral
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 Agreement 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 Lenders 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 or
Liquidation 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.
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 the Credit
Agreement, 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 or Liquidation 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 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 ss.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 Creditor
