INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT, dated as of __________ __, 2000,
among (a) FIRST UNION NATIONAL BANK, as administrative agent (in such
capacity, together with its successors and assigns in such capacity, the
"ADMINISTRATIVE AGENT") under the Credit Agreement dated as of March 30,
1998 (as amended, supplemented or otherwise modified from time to time, the
"SENIOR CREDIT AGREEMENT"), among Sunbeam Corporation (the "COMPANY"), the
subsidiary borrower referred to therein, the lenders party thereto (the
"SENIOR LENDERS"), Morgan Stanley Senior Funding, Inc., as syndication
agent, Bank of America, N.A., as documentation agent, and the
Administrative Agent; (b) The Bank of New York, not in its individual
capacity, but only as trustee (in such capacity, together with its
successors and assigns in such capacity, the "TRUSTEE") under the
Indenture, dated as of _________ __, 2000 (as amended, supplemented or
otherwise modified from time to time, the "INDENTURE"), between the
Company, as the issuer of the Senior Subordinated Notes referred to below,
and the Trustee; and (c) the Company.
W I T N E S S E T H :
WHEREAS, pursuant to the Senior Credit Agreement, (a) the
Senior Lenders have made loans and other extensions of credit to the
Company and the subsidiary borrower referred to therein and (b) the Company
has executed certain pledge agreements and security agreements pursuant to
which the Company granted to the Administrative Agent, for the benefit of
the Senior Lenders, a first priority security interest in substantially all
of the assets of the Company to secure its obligations under the Senior
Credit Agreement, including without limitation, a Parent Pledge and
Security Agreement, dated as of March 30, 1998 (as amended, supplemented or
otherwise modified from time to time, the "SENIOR PLEDGE AGREEMENT"),
pursuant to which the Company granted to the Administrative Agent, for the
benefit of the Senior Lenders, a first priority security interest in all of
the Company's right, title and interest in and to, among other things, the
Collateral referred to below;
WHEREAS, at the request of the Company, the Administrative
Agent and the Senior Lenders have executed an Amendment No. 11 and Twelfth
Waiver, dated as of July 6, 2000 (the "WAIVER"), to and under the Senior
Credit Agreement to, among other things, permit the Company to incur the
senior subordinated indebtedness under the Indenture and to grant junior
liens on the Collateral to secure the Company's obligations under the
Indenture, provided that such liens would be "silent" and subject and
subordinate, pursuant to an intercreditor agreement in form and substance
satisfactory to the Senior Creditors referred to below, to the liens on the
Collateral granted by the Company pursuant to the Senior Pledge Agreement;
WHEREAS, simultaneously with the execution and delivery of
this Agreement, (a) the Company has issued pursuant to the Indenture its
11% Senior Secured Subordinated Notes due 2011 (the "SENIOR SUBORDINATED
NOTES") to the Holders referred to below and (b) the Company has executed a
Junior Pledge and Security Agreement, dated as of _____________, 2000 (as
amended, supplemented or otherwise modified from time to time, the "JUNIOR
PLEDGE AGREEMENT"), pursuant to which the Company has granted to the
Trustee, for the benefit of the Holders, a second priority security
interest in all of the Company's right, title and interest in and to the
Collateral to secure the obligations of the Company under the Indenture;
and
WHEREAS, in accordance with the terms of the Waiver, and as
a condition to the waiver contained therein, the Administrative Agent and
the Trustee are executing and delivering this Agreement to set forth (a)
their relative rights in respect of the Collateral in which security
interests have been granted pursuant to the Senior Pledge Agreement and the
Junior Pledge Agreement and (b) the terms of the subordination in favor of
the Administrative Agent and the Senior Lenders of the junior security
interest in the Collateral granted by the Company pursuant to the Junior
Pledge Agreement;
NOW, THEREFORE, in consideration of the premises, the
parties hereto hereby agree as follows:
1. Definitions. (a) The following terms shall have the
following meanings:
"ADMINISTRATIVE AGENT" has the meaning set forth in the
preamble to this Agreement, and shall include each successor First
Lien Representative (as defined in the Indenture).
"AGREEMENT" means this Intercreditor Agreement, as the same
may be amended, supplemented or otherwise modified from time to
time.
"BANKRUPTCY CODE" means The Bankruptcy Reform Act of 1978,
as heretofore and hereafter amended, and codified as 11 U.S.C.
ss.ss. 101 et seq.
"COLLATERAL" means (a) all of the shares of capital stock
(together with any certificates evidencing such shares) of each of
Sunbeam Americas Holdings, Ltd. and Laser Acquisition Corp., each a
direct wholly-owned subsidiary of the Company, (b) any other shares
of capital stock (together with any certificates evidencing such
shares) required to be pledged to the Trustee pursuant to the
Junior Pledge Agreement), (c) all of the Company's rights and
privileges with respect to any such shares of capital stock and (d)
all proceeds consisting of cash or Equity Interests (as defined in
the Indenture) of any such shares of capital stock, including
without limitation, all dividends or other income or collections
thereon, and all payments or distributions with respect thereto.
"HOLDERS" means the "Holders" as defined in the Indenture,
including their respective successors and assigns.
"INDENTURE" has the meaning set forth in the preamble to
this Agreement.
"JUNIOR CREDITORS" means the collective reference to the
Trustee and the Holders.
"JUNIOR LIEN" means the junior security interest in and lien
on the Collateral granted by the Company to the Trustee, for the
benefit of the Trustee and the Holders, pursuant to the Junior
Pledge Agreement to secure the Junior Obligations.
"JUNIOR LOAN DOCUMENTS" means the collective reference to
the Indenture, the Senior Subordinated Notes and the Junior Pledge
Agreement.
"JUNIOR OBLIGATIONS" means the "Secured Obligations" as
defined in the Junior Pledge Agreement.
"JUNIOR PLEDGE AGREEMENT" has the meaning set forth in the
recitals to this Agreement.
"SENIOR CREDIT AGREEMENT" has the meaning set forth in the
preamble to this Agreement; for the purposes hereof, "SENIOR CREDIT
AGREEMENT" shall also be deemed to refer to any deferral, increase,
renewal, extension, replacement, refinancing or refunding thereof
(whether or not with the original Administrative Agent and Senior
Lenders or another administrative agent or other lenders and
whether pursuant to the original Senior Credit Agreement or any
other credit agreement or other agreement or indenture).
"SENIOR CREDITORS" means the collective reference to the
Administrative Agent and the Senior Lenders.
"SENIOR LENDERS" has the meaning set forth in the preamble
to this Agreement, including their respective successors and
assigns and other holders from time to time of Senior Obligations.
"SENIOR LIEN" means the senior security interest in and lien
on the Collateral granted by the Company to the Administrative
Agent, for the benefit of the Senior Lenders, pursuant to the
Senior Pledge Agreement to secure the Senior Obligations.
"SENIOR LOAN DOCUMENTS" means the collective reference to
the Senior Credit Agreement and the Senior Pledge Agreement.
"SENIOR OBLIGATIONS" means the "Secured Obligations" as
defined in the Senior Pledge Agreement.
"SENIOR PLEDGE AGREEMENT" has the meaning set forth in the
recitals to this Agreement; for purposes hereof, "SENIOR PLEDGE
AGREEMENT" shall also be deemed to refer to any successor or
substitute pledge agreement executed in connection with a Senior
Credit Agreement.
"SENIOR SUBORDINATED NOTES" has the meaning set forth in the
recitals to this Agreement.
"TRUSTEE" has the meaning set forth in the preamble to this
Agreement.
"WAIVER" has the meaning set forth in the recitals to this
Agreement.
(b) The words "hereof," "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement, and
paragraph references are to this Agreement unless otherwise specified. The
phrases "prior payment in full," "payment in full," "paid in full" and any
other similar terms or phrases when used herein with respect to any Senior
Obligations shall mean the collective reference to (i) the indefeasible
payment in full, in immediately available funds, of all such Senior
Obligations, (ii) the termination of the commitments under the Senior
Credit Agreement and (iii) the cash collateralization of any Senior
Obligations in respect of letters of credit in accordance with the terms of
the Senior Credit Agreement.
(c) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. Acknowledgments; Agreements. (a) The Trustee, on its own
behalf and on behalf of the Holders, (i) acknowledges that the Senior Lien
is senior to and prior in all respects to the Junior Lien, (ii)
acknowledges and agrees that the Junior Lien on the Collateral shall under
all circumstances be junior in priority and subordinated to the Senior Lien
on the Collateral and that the Junior Creditors shall not have any claim to
or in respect of the Collateral, or any proceeds of or realization on the
Collateral, on a parity with or prior to the claim of the Senior Creditors,
(iii) acknowledges and agrees that until the Senior Obligations have been
paid in full, the exercise of rights and remedies in respect of the Junior
Lien by the Junior Creditors under the Junior Pledge Agreement and
applicable law shall be limited to the extent set forth in, and shall be
governed by, this Agreement, (iv) acknowledges and affirms the
subordination of the Junior Obligations to the Senior Obligations to the
extent and in the manner set forth in Article 10 of the Indenture, (v)
acknowledges and affirms that the Senior Obligations constitute "Senior
Debt" and "Designated Senior Debt" under and as defined in the Indenture,
and that the Senior Credit Agreement constitutes the "Senior Credit
Agreement" under and as defined in the Indenture and (vi) acknowledges that
the Senior Lenders would not have permitted pursuant to the Waiver the
incurrence of the Junior Obligations and the grant of the Junior Lien in
the absence of the execution and delivery of this Agreement by the parties
hereto.
(b) The Administrative Agent agrees that, to the extent that
the Collateral includes items (such as stock certificates and instruments)
which are held in the possession of the Administrative Agent pursuant to
the Senior Pledge Agreement, the Administrative Agent will also hold (and
hereby confirms that it does hold) such items in its possession as agent of
the Trustee for purposes of perfecting the Junior Lien on such items, and
the Trustee, on its own behalf and on behalf of the Holders, hereby
authorizes and appoints the Administrative Agent to hold on the Trustee's
behalf and as its agent all Collateral for purposes of possession and
control under the Uniform Commercial Code or other applicable law. The
Administrative Agent hereby accepts such authorization and appointment and
the Trustee, on its own behalf and on behalf of the Holders, (i) releases
the Administrative Agent from any liability whatsoever (other than
liability resulting from the Administrative Agent's willful misconduct or
gross negligence) in connection with such authorization and appointment and
(ii) acknowledges that the Administrative Agent shall have no duty to the
Trustee or the Holders as to any Collateral, regardless of whether such
Collateral is in its possession or control or in the possession or control
of any agent or bailee of the Administrative Agent. This authorization and
appointment are a power coupled with an interest and are irrevocable.
3. Rights in Collateral. (a) Notwithstanding (i) anything to
the contrary contained in the Senior Loan Documents, the Junior Loan
Documents or any other document, filing or agreement (other than this
Agreement) related to the creation, attachment, perfection or existence of
the Senior Lien or the Junior Lien; (ii) the time, place, order or method
of attachment or perfection of the Senior Lien or the Junior Lien; (iii)
the time or order of filing or recording of financing statements or other
documents filed or recorded to perfect security interests in any Collateral
or any failure of the Administrative Agent to file or record any financing
statement or any continuations thereof under the Uniform Commercial Code or
other law of any applicable jurisdiction with respect to the Senior Lien or
the Junior Lien and (iv) the rules for determining priority under any law
governing the relative priorities of secured creditors, the Senior Lien
shall have priority over and be senior and superior to the Junior Lien.
(b) Without limiting the rights of the Senior Creditors
under the Senior Loan Documents and as holders of "Senior Debt" and
"Designated Senior Debt" under and as defined in the Indenture, so long as
this Agreement has not been terminated pursuant to Section 9 below upon the
payment in full of the Senior Obligations, and regardless of whether or not
the Senior Obligations or the Junior Obligations have been accelerated or
any bankruptcy proceeding or similar event or proceeding has been commenced
by or against the Company:
(i) The Junior Creditors (individually or collectively)
shall not exercise any rights or remedies in respect of the
Collateral or the Junior Lien, whether under the Junior Loan
Documents, applicable law or otherwise, including without
limitation, any action to institute any judicial or nonjudicial or
similar action or proceeding with respect to any such rights or
remedies.
(ii) The Senior Lenders shall have the exclusive right to
exercise rights and remedies in respect of the Collateral and the
Senior Lien under the Senior Loan Documents, applicable law or
otherwise and, in exercising such rights and remedies with respect
to the Collateral, the Senior Creditors may enforce the provisions
of the Senior Loan Documents and exercise remedies thereunder and
under applicable law (or refrain from enforcing any such rights and
exercising any such remedies), 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 the Senior Creditors or any agent appointed by the
Senior Creditors to sell or otherwise dispose of the Collateral, to
incur expenses in connection with such exercise and enforcement,
and to exercise all the rights and remedies of a secured lender
under the Uniform Commercial Code of any applicable jurisdiction
and of a secured creditor under bankruptcy or similar laws of any
applicable jurisdiction.
(iii) No Junior Creditor shall (A) contest, protest or
object to any exercise of rights or remedies by the Senior
Creditors under any Senior Loan Document or applicable law in
respect of the Collateral or the Senior Lien, including without
limitation, any action of foreclosure or to seek relief from the
automatic stay pursuant to Section 362 of the Bankruptcy Code, or
any decision by the Senior Creditors to refrain from enforcing any
such rights or exercising any such remedies and (B) contest the
validity or enforceability of the Senior Obligations or the
validity, perfection, priority or enforceability of the Senior Lien
(it being understood and agreed that the terms of this Agreement
shall govern even if part or all of the Senior Obligations or the
Senior Lien are avoided, disallowed, set aside or otherwise
invalidated in any judicial proceeding or otherwise).
(iv) The Senior Creditors shall have the sole and exclusive
right (without the consent of any Junior Creditor and without any
duty, obligation or liability arising from any such action) at any
time to (A) consent to any proposed sale or other disposition of
any Collateral, whether at private sale or pursuant to foreclosure,
bankruptcy or other judicial or nonjudicial proceedings, and (B)
release the Senior Lien on any Collateral in connection with any
such sale or other disposition, whether at private sale or pursuant
to foreclosure, bankruptcy or other judicial or nonjudicial
proceedings, and the Junior Creditors shall be deemed to have
consented to such release, sale or other disposition and any Junior
Lien on the portion of any Collateral released, sold or disposed of
shall be automatically extinguished and discharged upon any such
release, sale or other disposition so long as the Senior Creditors
have consented to such release, sale or other disposition. Upon any
such release, sale or other disposition of any Collateral, the
Junior Lien on such Collateral shall be automatically released, and
the Trustee shall, at the expense of the Company, execute or cause
to be executed such release documents and instruments and take such
further actions to evidence such release as the Administrative
Agent or the Company shall reasonably request.
(v) Any money, property, securities or other direct or
indirect distributions of any nature whatsoever received by any
Senior Creditor or Junior Creditor from the sale, disposition or
other realization upon a foreclosure or other exercise of remedies
of all or any part of the Collateral, regardless of whether such
money, property, securities or other distributions are received
directly or indirectly during the pendency of or in connection with
any bankruptcy, insolvency or other like proceeding or otherwise,
shall be delivered to the Administrative Agent in the form
received, duly indorsed to such party, if required, and applied by
the Administrative Agent in the following order:
First, to the payment in full of all Senior
Obligations in accordance with Section 14 of the Senior
Pledge Agreement;
Second, to the Trustee for application to the payment
in full of all amounts due to the Trustee hereunder and
pursuant to the Indenture (including without limitation,
Section 7.07 of the Indenture) and then to the Junior
Obligations in accordance with the terms of the Indenture
until all such Junior Obligations have been paid in full;
and
Third, to pay the Company or any designee thereof or
as a court of competent jurisdiction may direct, any surplus
then remaining.
4. Obligations Unconditional; Waivers, Covenants and
Agreements of the Junior Creditors. (a) All rights and interests of the
Senior Creditors hereunder and all agreements and obligations of the Junior
Creditors hereunder shall remain in full force and effect irrespective of:
(i) any lack of validity or enforceability of the Senior
Obligations, the Senior Lien, any Senior Loan Document or any other
document or agreement in respect of the Senior Obligations or the
Senior Lien, including without limitation, any exchange, release or
nonperfection of the Senior Lien;
(ii) any change in the time, manner or place of payment, or
in any other term, of all or any of the Senior Obligations
(including without limitation, any recission, in whole or in part,
by the Senior Creditors of any demand for payment of any Senior
Obligations), or any amendment, waiver, deferral, extension,
renewal, refinancing, replacement, refunding, acceleration,
compromise, release, alteration, supplementation, termination or
other modification, in whole or in part, including any increase in
the amount thereof, whether by course of conduct or otherwise, of
the Senior Obligations or of the terms of the Senior Credit
Agreement, any other Senior Loan Document or any other document or
agreement relating to the Senior Obligations or the Senior Lien; or
(iii) any other circumstances which otherwise might
constitute a defense available to, or a discharge of, the Company
in respect of the Senior Obligations or the Senior Lien, or of any
Junior Creditor in respect of this Agreement.
(b) The Trustee, on its own behalf and on behalf of each
Holder, hereby waives (i) reliance by the Senior Creditors upon the
subordination and other intercreditor arrangements set forth in the
Indenture and this Agreement and (ii) any notice of the creation, renewal,
extension or accrual of any of the Senior Obligations and notice of or
proof of reliance by the Senior Creditors holding such Senior Obligations
upon the Indenture and this Agreement. The Senior Obligations shall be
deemed conclusively to have been created, contracted or incurred in
reliance on the Indenture and this Agreement, and all dealings between the
Company and the Senior Creditors shall be deemed to have been consummated
in reliance upon the Indenture and this Agreement.
(c) Without limiting the restrictions on amendments
contained in the Indenture, prior to the payment in full of the Senior
Obligations, the Junior Creditors shall not, without the prior written
consent of the Administrative Agent, acting at the direction of the Senior
Lenders in accordance with the terms of the Senior Credit Agreement, permit
the Junior Loan Documents to be amended, supplemented or otherwise modified
in any manner that could adversely affect the rights of the Senior
Creditors under the Indenture and this Agreement.
(d) Except for any claim based solely upon willful
misconduct or gross negligence, the Trustee, on behalf of each Holder,
hereby waives any claim against any Senior Creditor with respect to, or
arising out of, any action or inaction or any error of judgment,
negligence, or mistake or oversight whatsoever on the part of such Senior
Creditor or their respective directors, officers, employees or agents (i)
with respect to any exercise of (or any decision to refrain from
exercising) any rights or remedies in respect of the Senior Obligations
under the Senior Loan Documents or applicable law or (ii) in connection
with any transaction relating to any Collateral. Neither any Senior
Creditor nor any of their respective directors, officers, employees or
agents shall be liable for failure to demand, collect or realize upon any
of the Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any Collateral upon the request
of the Company, the Trustee or any other person or entity or to take any
other action whatsoever with regard to the Collateral or any part thereof.
(e) Notwithstanding any claim for subrogation that any
Junior Creditor may otherwise have under applicable law, no Junior Creditor
shall be subrogated to the rights of the Senior Creditors to receive
distributions of Collateral in respect of the Senior Lien until the Senior
Obligations shall have been paid in full.
(f) Except as set forth in paragraph 6, no Senior Creditor
has made, and none of them hereby or otherwise makes to any Junior
Creditor, any representations or warranties, express or implied, nor does
any Senior Creditor assume any liability to any Junior Creditor with
respect to, the financial or other condition of the Company, the Company's
title to, the value of, or any other matter in respect of any Collateral or
the enforceability, validity, priority, value or collectability of the
Senior Obligations, any Senior Loan Document, the Senior Lien, the Junior
Obligations, any Junior Loan Document or the Junior Lien.
5. Provisions Applicable After Bankruptcy. The intercreditor
and subordination arrangements set forth in this Agreement, including
without limitation, the subordination of the Junior Lien to the Senior
Lien, shall continue in full force and effect notwithstanding the
occurrence of any proceeding under the Bankruptcy Code, and in furtherance
thereof:
(a) the Senior Lien shall be reinstated to the extent any
Senior Creditor is required to turn over or otherwise pay to the bankruptcy
estate of the Company any amount of the Senior Obligations (and as a result
thereof any portion of the Senior Lien is released), and the Senior Lien so
reinstated shall have the same benefits hereunder as if the Senior
Obligations had never been paid; and
(b) to the extent that the Junior Creditors have or acquire
any rights under Section 363 or Section 364 of the Bankruptcy Code with
respect to the Junior Lien, (i) the Junior Creditors will only assert such
rights as reasonably requested by the Administrative Agent and then only in
a manner consistent with paragraph 3 hereof, including without limitation,
in a manner consistent with the subordination, pursuant to this Agreement
and the Indenture, of the Junior Lien to the Senior Lien, (ii) the benefit
of the existence, acquisition or assertion of any such rights shall be
subject to the subordination and other terms of this Agreement and Article
10 of the Indenture and (iii) in connection with any financing of the
Company, the Junior Creditors shall be deemed to have consented to the
grant of a lien on the Collateral in connection with any such financing
which would be senior to, or pari passu with, the Senior Lien so long as
the Senior Lenders have consented to the grant of such lien in connection
with any such financing.
6. Representations.
(a) The Trustee represents and warrants to the
Administrative Agent that the execution, delivery and performance of this
Agreement by the Trustee is within its powers in its capacity as Trustee
for the Holders, and has been duly directed pursuant to the Indenture.
(b) The Administrative Agent hereby represents and warrants
to the Trustee that the execution, delivery and performance of this
Agreement by the Administrative Agent is within its powers in its capacity
as Administrative Agent for the Senior Lenders, and has been duly directed
pursuant to the Senior Credit Agreement.
7. Further Assurances. The Company and the Trustee, for its
own behalf and on behalf of each Holder, at the Company's expense and at
any time from time to time, upon the reasonable request of the
Administrative Agent, will promptly and duly execute and deliver such
further instruments and documents (including amendments to their financing
statements filed against the Company stating that the rights of the Trustee
and the Holders are subject to the terms hereof and together with such
assignments or endorsements as the Administrative Agent may reasonably deem
necessary) and take such further actions as the Administrative Agent may
reasonably request for the purposes of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted.
8. Provisions Define Relative Rights. This Agreement is
intended solely for the purpose of defining the relative rights of the
Senior Creditors, on the one hand, and the Junior Creditors, on the other
hand, in respect of the Collateral and no other person or entity shall have
any right, benefit or other interest under this Agreement. Nothing
contained in this Agreement is intended to affect or limit, in any way
whatsoever, the security interests, liens and other rights that the Senior
Creditors and the Junior Creditors have under the Senior Loan Documents and
the Junior Documents, as the case may be, insofar as the rights of the
Company or any other person or entity are involved.
9. Termination of Agreement; Acknowledgments. Upon payment
in full of the Senior Obligations, this Agreement shall terminate, and the
exercise of rights and remedies by the Junior Creditors in respect of the
Collateral shall thereafter be governed by the Junior Loan Documents. The
Administrative Agent agrees that, within 30 days after the Senior
Obligations have been paid in full, it will, upon the request of the
Trustee, deliver to the Trustee, any items of the Collateral held in the
possession of the Administrative Agent, or in the absence of any such
request, the Administrative Agent will deliver any such items of Collateral
to the Company.
10. Powers Coupled With An Interest. All powers,
authorizations and agencies contained in this Agreement are coupled with an
interest and are irrevocable until the Senior Obligations are paid in full
and the commitments under the Senior Credit Agreement are terminated.
11. Notices. All notices, requests and demands to or upon
the parties to be effective shall be in writing (or by fax or similar
electronic transfer confirmed in writing) and shall be deemed to have been
duly given or made (a) when delivered by hand or (b) if given by mail, when
deposited in the mails by certified mail, return receipt requested, or (c)
if by fax or similar electronic transfer, when sent and receipt has been
confirmed, addressed as follows:
If to the Administrative First Union National Bank
Agent: 301 South College Street, DC-5
Charlotte, North Carolina 28288-0737
Attention: Mr. Thomas Molitor
Telecopy: (704) 374-3300
Telephone: (704) 383-0018
If to the Trustee: The Bank of New York
101 Barclay Street
21st Floor West
New York, New York 10286
Attention: Corporate Trust
Trustee Administration
(Attention: Sunbeam Corporation,
11% Senior Secured Subordinated Notes
Due 2011)
Telecopy: (212) 815-5758
Telephone: (212) 815-5915/5917
The parties hereto may change their addresses and transmission numbers for
notices by notice in the manner provided in this paragraph.
12. Counterparts. This Agreement may be executed by one or
more of the parties on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the counterparts of this Agreement signed by all the
parties shall be lodged with the Administrative Agent and the Trustee.
13. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
14. Integration. This Agreement constitutes the entire
agreement of the parties hereto concerning the subject matter hereof and
may not be contradicted by evidence of prior, contemporaneous, or
subsequent oral agreements of the parties hereto; provided that the rights
of Senior Creditors hereunder shall be supplementary to, and not in any
manner limit or impair, or be limited or impaired by, the rights of the
Senior Creditors under the Indenture as the holders of "Senior Debt" and
"Designated Senior Debt" under and as defined in the Indenture. The parties
hereto agree that the terms of this Agreement shall govern and control in
the event, and to the extent, of any inconsistency between the terms of
this Agreement and any Junior Loan Document or Senior Loan Document.
15. Amendments in Writing; Cumulative Remedies. (a) None of
the terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise modified except by a written instrument executed
by the Administrative Agent, acting at the direction of the Senior Lenders
in accordance with the terms of the Senior Credit Agreement, and by the
Trustee, acting at the direction of the Holders in accordance with the
terms of the Indenture.
(b) The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of any other
rights or remedies provided by law. No failure to exercise, nor any delay
in exercising, on the part of any Senior Creditor, any right, power or
privilege hereunder or under any Senior Loan Document shall operate as a
waiver thereof. No single or partial exercise of any right, power or
privilege hereunder shall preclude any other or further exercise thereof or
the exercise of any other right, power or privilege.
17. Successors and Assigns. (a) This Agreement shall be
binding upon and inure to the benefit of each Senior Creditor and Junior
Creditor and their respective successors and assigns to the same extent as
if any such successor or assign was an original party hereto.
(b) In the event the Senior Obligations are paid in full as
a result of a replacement, refinancing or refunding of the Senior
Obligations, the lenders under any such new credit facility or facilities
shall be entitled (without any action by any party hereto) to succeed to
the first priority lien on the Collateral to the extent afforded to the
Senior Creditors in respect of the Senior Lien as set forth herein, and the
Junior Creditors shall continue to have no more rights or remedies in
respect of the Collateral than those provided to the Junior Creditors in
respect of the Junior Lien hereunder. In furtherance thereof, the Trustee,
on its own behalf and on behalf of the Holders, agrees to execute and
deliver an agreement containing terms substantially identical to those
contained herein in favor of any third person who causes the Senior
Obligations to be paid in full, whether such successor financing,
refinancing or replacement occurs by transfer, assignment, "takeout" or any
other means or vehicle.
18. Expenses. (a) The Company shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and the
Trustee, on demand, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent and the Trustee, in
connection with the preparation and administration of this Agreement and
(ii) all out- of-pocket expenses incurred by the Administrative Agent, any
Senior Lender or the Trustee, including the fees, charges and disbursements
of any counsel for the Administrative Agent, any Senior Lender or the
Trustee, in connection with the enforcement or protection of its rights in
connection with this Agreement.
(b) The Company shall pay, indemnify, and hold each Senior
Lender, the Administrative Agent and the Trustee (each such Person, an
"INDEMNITEE") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions (whether sounding in
contract, tort or on any other ground), judgments, suits, costs, expenses
or disbursements of any kind or nature whatsoever (including without
limitation fees, charges and disbursements of any counsel for any
Indemnitee) arising out of, in connection with, or as a result of the
execution, delivery, enforcement, performance and administration of, or in
any other way arising out of or relating to this Agreement or any action
taken or omitted to be taken by any Indemnitee with respect to any of the
foregoing, provided that such indemnity shall not be available to the
extent such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or wilful misconduct of such Indemnitee.
19. Authority of Trustee and Administrative Agent . (a)
Pursuant to the Junior Loan Documents, each of the Holders has appointed
the Trustee to act as agent on behalf of the Holders for all purposes in
connection with this Agreement, and the Trustee hereby confirms and agrees
that it has agreed to so act on behalf of the Holders as provided therein
and herein. Notwithstanding any provisions of the Junior Loan Documents to
the contrary, as between the Senior Creditors, on the one hand, and the
Junior Creditors, on the other hand, the Senior Creditors shall not be
required or entitled to inquire as to or verify the authority or power of
the Trustee to act on behalf of the Holders, and the Senior Creditors
shall, without inquiry and without notice to any of the Holders, rely upon
any act taken or notice given or any document executed by the Trustee with
respect to the matters covered hereby as the act, notice or document of the
Holders who shall be bound thereby (without prejudice, however, to any
rights or obligations of the Holders and the Trustee inter se). The Trustee
shall not owe any fiduciary duty to any Senior Creditor.
(b) Pursuant to the Senior Loan Documents, each of the
Senior Lenders has appointed the Administrative Agent to act as
administrative agent on behalf of the Senior Lenders for all purposes in
connection with this Agreement, and the Administrative Agent hereby
confirms and agrees that it has agreed to so act on behalf of the Senior
Lenders as provided therein and herein. Notwithstanding any provisions of
the Senior Loan Documents to the contrary, as between the Senior Creditors,
on the one hand, and the Junior Creditors, on the other hand, the Junior
Creditors shall not be required or entitled to inquire as to or verify the
authority or power of the Administrative Agent to act on behalf of the
Senior Lenders, and the Junior Creditors shall, without inquiry and without
notice to any of the Senior Lenders, rely upon any act taken or notice
given or any document executed by the Administrative Agent with respect to
the matters covered hereby as the act, notice or document of the Senior
Lenders who shall be bound thereby (without prejudice, however, to any
rights or obligations of the Senior Lenders and the Administrative Agent
inter se). The Administrative Agent shall not owe any fiduciary duty to any
Junior Creditor.
20. Governing Law; Jurisdiction. This Agreement shall be
governed by, and construed and interpreted in accordance with, the law of
the State of New York. Each party hereto agrees that all judicial
proceedings brought against it arising out of or relating to this Agreement
or its obligations hereunder may be brought in any state or federal court
of competent jurisdiction in the State, County and City of New York, and
accepts generally and unconditionally the nonexclusive jurisdiction and
venue of such courts.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first
above written.
FIRST UNION NATIONAL BANK,
as Administrative Agent
By: ___________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By: ___________________________________
Acknowledged and Agreed:
SUNBEAM CORPORATION
By: _________________________________
Name:
Title: