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 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
enforcement of its rights as an unsecured creditor, such judgment lien shall be
subordinated to any Lien on such Collateral securing any Senior Claim in
respect of such Collateral on the same basis and to the same extent as the
other Liens on such Collateral securing the Junior Claims are subordinated to
those securing the Senior Claims under this Agreement. Nothing in this
Agreement modifies any rights or remedies which any Senior Secured Party in
respect of any Collateral may have with respect to such Collateral.
Section 5. Application of Payments; Subrogation
5.1 Proceeds of Collateral. From and after the receipt by the
Collateral Agent of any Notice of Actionable Default and prior to the
withdrawal of all pending Notices of Actionable Default, proceeds of any
Collateral received by any party hereto shall be applied to the Secured Claims
as follows:
(a) first, to pay interest on and then principal of any portion of
the Senior Claims in respect of such Collateral that the Senior Agent may have
advanced on behalf of any Senior Secured Party for which the Senior Agent has
not then been reimbursed by such Senior Secured Party or the Loan Parties;
(b) second, to pay Secured Claims in respect of any expense
reimbursements or indemnities then due to the Senior Agent and the Collateral
Agent;
(c) third, to pay Secured Claims in respect of any expense
reimbursements or indemnities then due to the other Senior Secured Parties;
(d) fourth, to pay Secured Claims in respect of any fees then due
to the Senior Agent and the Collateral Agent;
(e) fifth, to pay Secured Claims in respect of any fees then due to
the other Senior Secured Parties;
(f) sixth, to pay interest then due and payable in respect of all
Senior Claims in respect of such Collateral;
(g) seventh, to pay or prepay principal payments for all Senior
Claims (and, when applicable, to provide cash collateral for letters of credit
or Interest Rate Agreements constituting Senior Claims) in respect of such
Collateral;
(h) eighth, to pay all other Senior Claims in respect of such
Collateral;
(i) ninth, to pay interest on and then principal of any portion of
the Junior Claims that the Junior Agent may have advanced on behalf of any
Junior Secured Party for which the Junior Agent has not then been reimbursed by
such Junior Secured Party or the Loan Parties;
(j) tenth, to pay Secured Claims in respect of any expense
reimbursements or indemnities then due to the Junior Agent;
(k) eleventh, to pay Secured Claims in respect of any expense
reimbursements or indemnities then due to the other Junior Secured Parties;
(l) twelfth, to pay Secured Claims in respect of any fees then due
to the Junior Agent;
(m) thirteenth, to pay Secured Claims in respect of any fees then
due to the other Junior Secured Parties;
(n) fourteenth, to pay interest then due and payable in respect of
all Junior Claims in respect of such Collateral;
(o) fifteenth, to pay or prepay principal payments for all Junior
Claims (and, when applicable, to provide cash collateral for letters of credit
or Interest Rate Agreements constituting Junior Claims) in respect of such
Collateral;
(p) sixteenth, to pay all other Junior Claims in respect of such
Collateral; and
(q) seventeenth, as directed by the Company (subject to applicable
laws);
provided, however, that, if sufficient funds are not available to fund all
payments required to be made in any of clauses first through sixteenth above,
the available funds being applied to the Secured Claims specified in any such
clause (unless otherwise specified in such clause) shall be allocated to the
payment of such Secured Claims ratably, based on the proportion of each Agent's
and each Secured Party's interest in the aggregate outstanding Secured Claims
described in such clause; provided, further, that payments that would otherwise
be allocated to the Multi-Currency Lenders shall be allocated first to repay
Swing Loans until such Loans are paid in full, second to repay Local Loans
until such Loans are paid in full and then to repay the Revolving Credit Loans.
The order of payment application set forth in clauses (a) through (p) above may
be amended at any time and from time to time by the Required Lenders without
any notice to or consent of or approval by any Loan Party (unless such
amendment is of the type described in Section 12.3(iv)) or any other Person
that is not a party to the Credit Agreement; provided, however, that (i) any
such amendment adversely affecting any Agent shall also require the prior
written consent of such Agent, (ii) any such amendment not adversely affecting
the Multi-Currency Lenders shall only require the consent of the Required Term
Loan Lenders and (iii) any such amendment not adversely affecting the Term Loan
Lenders shall only require the consent of the Required Multi-Currency Lenders.
5.2 Proceeds of Non-Collateral. From and after the receipt by the
Collateral Agent of any Notice of Actionable Default and prior to the
withdrawal of all pending Notices of Actionable Default, any payment received
by any party to the Credit Agreement from a Loan Party that does not constitute
proceeds of any Collateral shall be applied pursuant to Section 7.15(h) of the
Credit Agreement.
5.3 Payments Over. Unless and until all Secured Claims shall have
been paid in full, (a) any payment received by any party hereto at any time in
contravention of the Credit Agreement or this Agreement and (b) from and after
the receipt of any Notice of Actionable Default and prior to the withdrawal of
all pending Notices of Actionable Default, any Collateral or proceeds thereof
or any payment received by any Secured Party from proceeds of any Collateral
shall be segregated and held in trust and forthwith paid over to the Collateral
Agent for application in accordance with the Credit Agreement (in the case of
clause (a) above) or Section 5.1 (in the case of clause (b) above) in the same
form as received, with any necessary endorsements or as a court of competent
jurisdiction may otherwise direct. The Collateral Agent is hereby authorized to
make any such endorsements as agent for any such Person. This authorization is
coupled with an interest and is irrevocable.
5.4 Subrogation. The Junior Agent in respect of any Collateral, on
behalf of each Junior Secured Party, hereby waives any rights of subrogation it
may acquire as a result of any payment hereunder until the Senior Claims in
respect of such Collateral shall have been paid in full. Upon payment in full
of such Senior Claims, the Junior Secured Parties shall be subrogated to the
rights of the Senior Secured Parties to receive payments or distributions
applicable to such Senior Claims.
Section 6. Insolvency or Liquidation Proceedings
6.1 Voting of Claims. Until the payment in full of all Senior
Claims in respect of any Collateral, the Senior Agent shall have the right, but
not the obligation, to vote the claim of any Junior Secured Party in respect of
such Collateral in any Insolvency or Liquidation Proceeding if such Junior
Secured Party has not voted its claim on or prior to 10 days before the
expiration of the time to vote any such claim. In the event that Senior Agent
exercises such right to vote, no Junior Secured Party shall be entitled to
change or withdraw such vote.
6.2 Waivers. In the event an Insolvency or Liquidation Proceeding
shall be commenced by or against any Loan Party, in respect of any part of the
Senior Collateral or proceeds thereof or any Senior Lien which may exist
thereon, each of the Junior Secured Parties in respect of such Collateral
hereby agrees that such Person shall not, until the payment in full of the
Senior Claims in respect of such Collateral:
(a) seek any relief from, or modification of, the automatic stay as
provided in ss.362 of the Bankruptcy Code or seek or accept any form of
adequate protection under either or both of ss.362 and ss.363 of the Bankruptcy
Code with respect to the Senior Collateral, except (i) replacement Liens, which
Liens at all times shall (A) also secure the Senior Claims and (B) be
subordinated to the Senior Liens in accordance with, and subject to, the terms
of this Agreement, and (ii) the accrual or the current payment of interest and
out-of-pocket expenses, including fees and disbursements of counsel and other
professional advisors, incurred by the Junior Agent (which the Junior Secured
Parties agree will constitute adequate protection of their claims and
interests);
(b) oppose or object to any adequate protection sought by or
granted to any Senior Secured Parties with respect to the Senior Collateral;
(c) oppose or object to the use of any Senior Collateral
constituting cash collateral by any Loan Party, unless the Senior Secured
Parties shall have opposed or objected to such use of such cash collateral;
(d) oppose or object to any financing with respect to any Loan
Party provided under any Bankruptcy Law (regardless of whether any Indebtedness
thereunder is senior to the Junior Claims or secured by Liens on the Senior
Collateral that are senior in priority to the Junior Liens on such Collateral),
unless (i) the Senior Agent or the Senior Secured Parties shall have opposed or
objected to such financing or (ii) any Indebtedness thereunder is secured by
any Collateral on which the Junior Secured Parties have a first-priority Lien
under this Agreement and the Liens on such Collateral securing such
Indebtedness would be senior in priority to such first-priority Liens of the
Junior Secured Parties;
(e) object to (i) the amount of the Senior Claims allowed or
permitted to be asserted under any Bankruptcy Law or (ii) the extent to which
the Senior Claims are deemed secured claims, including under ss.506(a) of the
Bankruptcy Code;
(f) oppose or object to any protection provided to the Senior
Secured Parties, including any form of adequate protection under ss.362 or
ss.363 of the Bankruptcy Code and the payment of amounts equal to interest and
expenses allowed under ss.506(b) and (c) of the Bankruptcy Code to any Senior
Secured Parties; or
(g) object to the treatment of the Senior Claims under a chapter 11
plan of reorganization under the Bankruptcy Code or similar plan or
reorganization or arrangement under any other applicable Insolvency or
Liquidation Proceeding, except on the grounds that the present value of all
property received by the Senior Secured Parties exceeds the amount of the
claims of the Senior Secured Parties in such Insolvency or Liquidation
Proceeding.
6.3 No Waiver by Senior Secured Parties. Nothing contained herein
shall prohibit or in any way limit any Senior Secured Party from, with respect
to the Senior Collateral, objecting in any Insolvency or Liquidation Proceeding
(or otherwise) to any action taken by any Junior Secured Party, including the
seeking by such Junior Secured Party of adequate protection with respect to
such Collateral or the asserting by such Junior Secured Party of any of its
rights and remedies under the Junior Documents (or otherwise) with respect to
such Collateral.
Section 7. Representations and Warranties
Each party hereto represents and warrants as follows:
(a) Such party is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization and has all
requisite power and authority to enter into and perform its obligations under
this Agreement.
(b) This Agreement has been duly executed and delivered by such
party and constitutes a legal, valid and binding obligation of such party,
enforceable in accordance with its terms.
(c) The execution, delivery and performance by such party of this
Agreement (i) do not require any consent or approval of, registration or filing
with or any other action by any governmental authority and (ii) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of such party or any order of any governmental
authority or any indenture, agreement or other instrument binding upon such
party.
Section 8. Indemnification; Expenses
8.1 Indemnification. Each Secured Party agrees to indemnify each
Agent and each of its Affiliates, and each of their respective directors,
officers, employees, agents and advisors (to the extent not reimbursed by the
Company), from and against such Secured Party's ratable share of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses and disbursements (including fees, expenses and
disbursements of financial and legal advisors) of any kind or nature whatsoever
that may be imposed on, incurred by, or asserted against, such Agent or any of
its Affiliates, directors, officers, employees, agents and advisors in any way
relating to or arising out of this Agreement or the other Collateral Documents
or any action taken or omitted by such Agent under this Agreement or the other
Collateral Documents; provided, however, that no Secured Party shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from such
Agent's or such Affiliate's gross negligence or willful misconduct.
8.2 Expenses. Without limiting the foregoing, each Secured Party
agrees to reimburse each Agent promptly upon demand for its ratable share of
any out-of-pocket expenses (including fees, expenses and disbursements of
financial and legal advisors) incurred by such Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of its rights or responsibilities under, this
Agreement or the other Collateral Documents, to the extent that such Agent is
not reimbursed for such expenses by the Company or another Loan Party.
Section 9. Release of Collateral
9.1 At the request of the Company, the Collateral Agent shall, and
each of the Administrative Agents and the Secured Parties hereby authorizes and
directs the Collateral Agent (without any further notice or consent to or of
any Secured Party) to, promptly release (or, in the case of clause (b) below,
release or subordinate as required by the holders of any Lien specified
thereunder) any Lien held by the Collateral Agent for the benefit of the
Secured Parties against any of the following:
(a) all of the Collateral, and all Loan Parties, upon receipt of
(i) a written notice from each of the Administrative Agents that the Payment
Obligations have been Fully Satisfied and (ii) a certificate of a Responsible
Officer of the Company that (A) all Designated Eligible Obligations have been
paid in full or have been Undesignated prior to or concurrently with the
delivery of such certificate and (B) all other Secured Claims, if any, then due
and payable have been paid in full; provided, however, that, if the Collateral
Agent has received a notice to the contrary from any Secured Party with respect
to its Secured Claims, such notice shall also have been withdrawn;
(b) any part of the Collateral that is subject to a Lien permitted
by Sections 11.3(a), (b), (c), (d), (e), (o) or (p) of the Credit Agreement;
(c) any part of the Collateral sold or disposed of by a Loan Party
if such sale or disposition is permitted by the Credit Agreement (or pursuant
to a valid waiver or consent to a transaction otherwise prohibited by the
Credit Agreement); and
(d) any Pledged Collateral that has been cancelled, replaced or
repaid in accordance with the terms of the Credit Agreement.
9.2 Each of the Administrative Agents and the Secured Parties
hereby authorizes and directs the Collateral Agent to execute and deliver or
file such termination and partial release statements and take such other
actions as are reasonably necessary to release (or subordinate) Liens pursuant
to this Section 9 promptly upon the effectiveness of any such release (or
subordination). Each of the Agents and the Secured Parties hereby acknowledges
and agrees that the Loan Parties may use the Collateral to the extent permitted
under the Credit Agreement. Each Administrative Agent hereby agrees to give the
notice referred to in Section 9(a)(i) when the Payment Obligations have been
Fully Satisfied.
Section 10. Designated Eligible Obligations
10.1 Designation/Revocation. From time to time, as long as (a) no
Default or Event of Default has occurred and is continuing and (b) in the case
of any Multi-Currency Designated Obligation, after giving effect to the
designation thereof and any Designated Eligible Obligations Reserve to be
established with respect thereto, the Available Multi-Currency Commitment is
equal to or greater than zero, the Company may designate any obligation of the
type defined as "Designated Eligible Obligations" in the Credit Agreement, and
solely to the extent permitted therein, to be secured by the Collateral as
either Multi-Currency Eligible Obligations or Term Loan Eligible Obligations
(or change such designation without notice to or consent of any holder of such
Designated Eligible Obligation) by delivery to the Collateral Agent (with a
copy to each Administrative Agent) of a certificate of a Responsible Officer,
substantially in the form attached hereto as Exhibit A or such other form
reasonably satisfactory to the Administrative Agents (the "Certificate of
Designation/Revocation"). The Company may revoke such designation at any time
by delivering to the Collateral Agent a subsequent Certificate of
Designation/Revocation (with a copy to each Administrative Agent) and,
immediately upon receipt by the Collateral Agent of such certificate, without
notice to or consent of any holder of such Designated Eligible Obligation or
any other Secured Claim, the applicable Designated Eligible Obligation shall
become Undesignated and shall no longer constitute a "Designated Eligible
Obligation," a "Secured Obligation" or a "Secured Claim" for any purpose under
any Collateral Document, whether or not any amounts or commitments are then
outstanding in respect thereof and whether or not any other Secured Claims are
being paid in full at such time. The Collateral Agent shall maintain a copy of
each Certificate of Designation/Revocation received by it and a record of
designations, revocations and the names and addresses of the representatives of
the holders of the Designated Eligible Obligations stated therein, which record
shall be conclusive and binding for all purposes, absent manifest error, and
the Secured Parties may treat each Person whose name is recorded in such record
as a holder of Designated Eligible Obligations for all purposes of this
Agreement until such Designated Eligible Obligations are Undesignated. Upon
request and at the expense of the Company or any Secured Party, the Collateral
Agent shall provide a copy of such record to the Company or such Secured Party.
10.2 Rights of Eligible Obligations Holders. The benefit of the
Loan Documents and of the provisions of this Agreement relating to the
Collateral shall extend to and be available in respect of any Secured Claim
arising under any Designated Eligible Obligation solely on the condition and
understanding, as among the Agents and all Secured Parties, that (a) the
Designated Eligible Obligations shall be entitled to the benefit of the Loan
Documents and the Collateral to the extent expressly set forth in this
Agreement and the other Loan Documents and to such extent the Agents shall
hold, and have the right and power to act with respect to, the Guaranty and the
Collateral on behalf of and as agent for the holders of the Designated Eligible
Obligations, but the Agents are otherwise acting solely as agents for the
applicable Lenders and Issuing Lenders and shall have no fiduciary duty, duty
of loyalty, duty of care, duty of disclosure or other obligation whatsoever to
any holder of Designated Eligible Obligations, (b) all matters, acts and
omissions relating in any manner to the Guaranty, the Collateral, or the
omission, creation, perfection, priority, abandonment or release of any Lien on
any asset of any Loan Party, shall be governed solely by the provisions of this
Agreement and the other Loan Documents and no separate Lien, right, power or
remedy with respect to the Loan Parties or any of their assets shall arise or
exist in favor of any Secured Party under any separate instrument or agreement
or in respect of any Designated Eligible Obligation, (c) each Secured Party
shall be bound by all actions taken or omitted, in accordance with the
provisions of this Agreement (including release of any or all of the Collateral
pursuant to Section 9 and any amendments or waivers of any Loan Documents in
accordance with Section 14.1 of the Credit Agreement) and the other Loan
Documents, by the applicable Agent and, to the extent required by the Credit
Agreement, the Required Lenders (or such lesser percentage of Lenders required
to direct ,or consent to, such action as set forth herein or therein), each of
whom shall be entitled to act at its sole discretion and exclusively in its own
interest given its own Commitments and its own interest in the Loans and other
Payment Obligations owing to it arising under this Agreement or the other Loan
Documents, without any duty or liability to any other Secured Party or as to
any Designated Eligible Obligation and without regard to whether any Designated
Eligible Obligation remains outstanding or is deprived of the benefit of the
Collateral or becomes unsecured or is otherwise affected or put in jeopardy
thereby, (d) no holder of Designated Eligible Obligations and no other Secured
Party (except the Agents, the Lenders and the Issuing Lenders, to the extent
set forth in this Agreement) shall have any right to be notified of, or to
direct, require or be heard with respect to, any action taken or omitted in
respect of the Collateral or under this Agreement or the Loan Documents
(including any release or amendment referred to above) and (e) no holder of any
Designated Eligible Obligation shall exercise any right of setoff, banker's
lien or similar right with respect to the Collateral without the consent of the
Administrative Agents.
Section 11. Acknowledgements and Consents
11.1 Reliance by Senior Secured Parties. The consent by the Senior
Secured Parties to the execution and delivery of the Junior Documents and the
grant of a Junior Lien on the Senior Collateral and all loans and other
extensions of credit made or deemed made on and after the date hereof by the
Senior Secured Parties to the Borrowers shall be deemed to have been given and
made in reliance upon this Agreement.
11.2 Independent Analysis. The Junior Agent, on behalf of each
Junior Secured Party, acknowledges that it and each Junior Secured Party has,
independently and without reliance on the Senior Agent or any Senior Secured
Party, and based on documents and information deemed by it appropriate, made
its own credit analysis and decision to enter into this Agreement, the Junior
Documents, and the transactions contemplated hereby and thereby and agrees that
it will continue to make its own credit decision in taking or not taking any
action under the Junior Documents or this Agreement.
11.3 No Warranties or Liability. The Junior Agent, on behalf of
each Junior Secured Party, acknowledges and agrees that:
(a) no Senior Secured Party has made any express or implied
representation or warranty, including with respect to the execution, validity,
legality, completeness, collectibility or enforceability of any Senior
Document;
(b) the Senior Secured Parties will be entitled to manage and
supervise their respective loans and extensions of credit to the Borrowers as
they may, in their sole discretion, deem appropriate and without regard to any
rights or interests that any Junior Secured Party may have in the Senior
Collateral or otherwise, except as otherwise provided in this Agreement or
under applicable law; and
(c) no Senior Secured Party shall have any duty to any Junior
Secured Party to act or refrain from acting in a manner which allows, or
results in, the occurrence or continuance of an event of default or default
under any agreements with any Loan Party (including the Junior Documents),
regardless of any knowledge thereof which they may have or be charged with.
11.4 No Waiver of Lien Priorities.
(a) No right of any Senior Secured Party to enforce any provision
of this Agreement shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of any Loan Party or by any act or failure to
act by any Senior Secured Party, or by any noncompliance by any Person with the
terms, provisions and covenants of this Agreement, any of the Senior Documents
or any of the Junior Documents, regardless of any knowledge thereof which any
Senior Secured Party may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing
clause (a) (except as set forth in any Loan Document), each Senior Secured
Party, may, at any time and from time to time, without the consent of, or
notice to, any Junior Secured Party, without incurring any liability to any
Junior Secured Party and without impairing or releasing the lien priorities and
other benefits provided in this Agreement (even if any right of subrogation or
other right or remedy of any Junior Secured Party is affected, impaired or
extinguished thereby) do any one or more of the following:
(i) change the manner, place or terms of payment or change or
extend the time of payment of, or renew, exchange, amend, increase or
alter, the terms of any Senior Claim, any Lien in respect of any Senior
Collateral, any guaranty of any Senior Claim, or any liability of any
Loan Party incurred directly or indirectly in respect of any of the
foregoing (including any increase in or extension of the Senior Claims,
without any restriction as to the amount, tenor or terms of any such
increase or extension) or otherwise amend, renew, exchange, extend,
modify or supplement in any manner the Senior Claims, any Liens held by
the Senior Agent, the Senior Secured Parties, or any of the Senior
Documents;
(ii) sell, exchange, release, surrender, realize upon, enforce or
otherwise deal with in any manner and in any order any part of the Senior
Collateral or any liability of any Loan Party to the Senior Agent or any
Senior Secured Party, or any liability incurred directly or indirectly in
respect thereof;
(iii) settle or compromise any Senior Claim or any other liability
of any Loan Party or any security therefor or any liability incurred
directly or indirectly in respect thereof and apply any sums by
whomsoever paid and however realized to any liability (including the
Senior Claims) in any manner or order; and
(iv) exercise or delay in or refrain from exercising any right or
remedy against any security or any Loan Party or any other Person, elect
any remedy and otherwise deal freely with the Loan Parties, the Senior
Collateral and any security, any guarantor or any liability of any Loan
Party to any Senior Secured Party, or any liability incurred directly or
indirectly, in respect of the foregoing;
(c) The Junior Agent, on behalf of each Junior Secured Party, also
agrees that no Senior Secured Party shall have any duty or liability to any
Junior Secured Party, and the Junior Agent, on behalf of each Junior Secured
Party, hereby waives all claims against each Senior Secured Party arising out
of any and all actions which any Senior Secured Party may take or permit or
omit to take with respect to: (i) the Senior Documents, (ii) the collection of
the Senior Claims, (iii) the foreclosure upon, or sale, liquidation or other
disposition of, the Senior Collateral, (iv) the release of any Lien in respect
of any Senior Collateral, or (v) the maintenance or preservation of the Senior
Collateral, the Senior Claims or otherwise; and
(d) The Junior Agent, on behalf of each Junior Secured Party, in
respect of any Collateral agrees not to assert and hereby waives, to the
fullest extent permitted by law, any right to demand, request, plead or
otherwise assert or otherwise claim the benefit of, any marshalling, appraisal,
valuation or other similar right that may otherwise be available under
applicable law or any other similar rights a junior secured creditor may have
under applicable law in respect of such Collateral.
11.5 Obligations Unconditional. All rights, interests, agreements
and obligations hereunder of the Senior Agent and the Senior Secured Parties in
respect of any Collateral and the Junior Agent and the Junior Secured Parties
in respect of such Collateral shall remain in full force and effect regardless
of:
(a) any lack of validity or enforceability of any Senior Document
or any Junior Document and regardless of whether the Liens of the Senior Agent
and Senior Secured Parties are not perfected or are voidable for any reason;
(b) any change in the time, manner or place of payment of, or in
any other terms of, all or any of the Senior Claims or Junior Claims, or any
amendment or waiver or other modification, including any increase in the amount
thereof, whether by course of conduct or otherwise, of the terms of any Senior
Document or any Junior Document;
(c) any exchange, release or lack of perfection of any Lien on any
Collateral or any other asset, or any amendment, waiver or other modification,
whether in writing or by course of conduct or otherwise, of all or any of the
Senior Claims or Junior Claims or any guarantee thereof;
(d) the commencement of any Insolvency or Liquidation Proceeding in
respect of any Loan Party; or
(e) any other circumstances which otherwise might constitute a
defense available to, or a discharge of, any Loan Party in respect of any
Secured Claim or of any Junior Secured Party in respect of this Agreement.
11.6 Attorney-in-Fact. The Junior Agent, on behalf of each Junior
Secured Party, in respect of any Collateral hereby irrevocably constitutes and
appoints the Senior Agent in respect of such Collateral and any officer or
agent (including the Collateral Agent) of such Senior Agent, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of the Junior Agent or such holder
or in such Senior Agent's own name, from time to time in such Senior Agent's
discretion, for the purpose of carrying out the terms of this Agreement, to
take any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the purposes of
this Agreement, including any financing statements, endorsements or other
instruments or transfer or release. Notwithstanding the grant of the foregoing
power of attorney, nothing in this Section 11.6 is intended to in any way
relieve any Loan Party of its obligations to comply with requirements of law or
applicable obligations with respect to the release of Collateral under any
Collateral Document.
11.7 Consent of Loan Parties. Each Loan Party hereby consents to
the provisions of this Agreement and the intercreditor arrangements provided
for herein and agrees that the obligations of the Loan Parties under any Senior
Document, Junior Document, Loan Document or other Collateral Document shall not
in any way be diminished or otherwise affected by such provisions or
arrangements. All references to any Loan Party shall include reference to such
Loan Party as a debtor and debtor in possession and any receiver or trustee for
such Loan Party in any Insolvency or Liquidation Proceeding. Each Loan Party
hereby agrees that, if, pursuant to Section 10.10 (Additional Guaranties) of
the Credit Agreement, the Company shall be required to cause any Subsidiary
that is not a Loan Party to become a Loan Party, or if for any reason the
Company desires any such Subsidiary to become a Loan Party, such Subsidiary
shall execute and deliver to the Collateral Agent an Intercreditor Supplement
in substantially the form of Exhibit C (Intercreditor Supplement) attached
hereto and shall thereafter for all purposes be a party hereto and have the
same rights, benefits and obligations as a Loan Party party hereto on the
Closing Date.
Section 12. Miscellaneous
12.1 Conflicts. Except as expressly provided herein, in the event
of any conflict between the provisions of this Agreement and the provisions of
the Collateral Documents, the provisions of this Agreement shall govern.
12.2 Continuing Nature. This Agreement shall continue to be
effective until the payment in full of all Secured Claims. This is a continuing
agreement of lien subordination and the Senior Secured Parties may continue, at
any time and without notice to any Junior Secured Party, to extend credit and
other financial accommodations and lend monies constituting Senior Claims on
the faith hereof. The terms of this Agreement shall survive, and shall continue
in full force and effect, in any Insolvency or Liquidation Proceeding.
12.3 Amendments; Waivers. Except as set forth in Section 5.1, no
amendment, modification or waiver of any provision of this Agreement shall be
deemed to be made unless the same (i) shall be in writing signed by each Agent
and (ii) shall have been approved by the Required Lenders (other than any
amendments or modifications requested by any successor Collateral Agent not
adversely affecting the Secured Parties) pursuant to Section 14.1 of the Credit
Agreement. Notwithstanding anything to the contrary, the consent of any Loan
Party shall not be required for amendments, modifications or waivers of the
provisions of this Agreement, except that the Company's consent shall be
required for those that (i) affect any obligation or right of any Loan Party
hereunder or that would impose any additional obligations on any Loan Party
(including such changes under Section 10 or this Section 12.3), (ii) change the
ability of any Collateral Agent to release Collateral pursuant to Section 9,
(iii) change the rights of the Loan Parties to make payments in respect of any
Secured Claims (except with respect to proceeds of Collateral while a Notice of
Actionable Default is pending) or (iv) adversely affect the rights of the
holders of Multi-Currency Eligible Obligations in relation to those of the
Multi-Currency Lenders or the rights of the holders of Term Loan Eligible
Obligations in relation to those of the Term Loan Lenders. In the case of a
waiver of any provision of this Agreement, such waiver shall be effective only
with respect to the specific instance involved and shall in no way impair the
rights of the parties making such waiver or the obligations of the other
parties in any other respect or at any other time. The Administrative Agents
shall notify the Company of any amendment, modification or waiver effected
hereunder; provided, however, that the failure of any Administrative Agent to
deliver such notice shall not render any such amendment, modification or waiver
ineffective. Notwithstanding anything to the contrary herein, the consent of
any holder of any Designated Eligible Obligation shall not be required for
amendments, modifications or waivers of the provisions of this Agreement to
which the Company has consented, whether or not such amendments, modifications
or waivers adversely affect the rights of such holder.
12.4 Consent to Jurisdiction; Waiver of Trial by Jury.
(a) Any legal action or proceeding with respect to this Agreement
or any other Collateral Document may be brought in the courts of the State of
New York located in the City of New York or of the United States of America for
the Southern District of New York, and, by execution and delivery of this
Agreement, each party hereto hereby accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. The parties hereto hereby irrevocably waive any objection, including
any objection to the laying of venue or based on the grounds of forum non
conveniens, that any of them may now or hereafter have to the bringing of any
such action or proceeding in such respective jurisdictions.
(b) Each party hereto hereby irrevocably consents to the service of
any and all legal process, summons, notices and documents in any suit, action
or proceeding brought in the United States of America arising out of or in
connection with this Agreement or any other Loan Document by the mailing (by
registered or certified mail, postage prepaid) or delivering of a copy of such
process to such party at its address specified in Section 12.5 (Notices). Each
party hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
(c) Nothing contained in this Section 12.4 shall affect the right
of any Agent or any Secured Party to serve process in any other manner
permitted by law or commence legal proceedings or otherwise proceed against the
Company or any other Loan Party in any other jurisdiction.
(d) EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES TRIAL BY JURY IN
ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT.
(e) The obligations of each Grantor in respect of any Obligation
due to any party hereto in Dollars (including, without limitation, by virtue of
any conversion of a Local Loan or Acceptance from a Denomination Currency into
Dollars pursuant to the provisions of Section 6.4) or any holder of any bond
which is denominated in Dollars, shall, notwithstanding any judgment in a
currency (the "judgment currency") other than Dollars, be discharged only to
the extent that on the Business Day following receipt by such party or such
holder (as the case may be) of any sum adjudged to be so due in the judgment
currency such party or such holder (as the case may be) may in accordance with
normal banking procedures purchase Dollars with the judgment currency; if the
amount of Dollars so purchased is less than the sum originally due to such
party or such holder (as the case may be) in Dollars, such Grantor agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify such
party or such holder (as the case may be) against such loss, and if the amount
of Dollars so purchased exceeds the sum originally due to any party to this
Agreement or any holder of Notes (as the case may be), such party or such
holder (as the case may be), agrees to remit to such Grantor, such excess.
12.5 Notices. Any notice or other communication herein required or
permitted to be given to (a) any party hereto that is also a party to the
Credit Agreement shall be made in accordance with Section 14.2 of the Credit
Agreement and (b) any holder of Designated Eligible Obligation at the address
specified in the Certificate of Designation/Revocation or such other address as
shall be notified in writing to the Administrative Agents and the Collateral
Agent.
12.6 Governing Law. This Agreement has been delivered and accepted
at and shall be deemed to have been made at New York, New York and shall be
interpreted, and the rights and liabilities of the parties bound hereby
determined, in accordance with the laws of the State of New York.
12.7 Specific Performance. Each of the Agents and the Secured
Parties may demand specific performance of this Agreement. The Senior Agent, on
behalf of each Senior Secured Party, and the Junior Agent, on behalf of each
Junior Secured Party, hereby irrevocably waive any defense based on the
adequacy of a remedy at law and any other defense which might be asserted to
bar the remedy of specific performance in any action which may be brought by
any Agent or Secured Party.
12.8 Section Titles. The section titles contained in this Agreement
are and shall be without substantive meaning or content of any kind whatsoever
and are not a part of this Agreement.
12.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original and all of which shall
together constitute one and the same document. Signature pages may be detached
from multiple separate counterparts and attached to a single counterpart so
that all signature pages are attached to the same document.
12.10 No Third Party Beneficiaries. This Agreement shall be binding
upon, and the rights and benefits hereof shall inure to the benefit of, the
Secured Parties and each of their respective permitted successors and assigns
and, to the extent applicable, the Loan Parties and their respective permitted
successors and assigns. No other Person shall have or be entitled to assert
rights or benefits hereunder. Each Loan Party shall cause each of its
Subsidiaries, to the extent applicable, to comply with the terms of this
Agreement.
12.11 Further Assurances. Each of the Loan Parties and the Junior
Agent, on behalf of each Junior Secured Party, agrees that each such Person
shall, at the Loan Parties' expense, take such further action and execute and
deliver to the Agents and the Senior Agent, on behalf of each Senior Secured
Party, such additional documents and instruments (in recordable form, if
requested), in each case, as the Senior Agent or the Collateral Agent may
reasonably request to effectuate the terms of this Agreement.
SIGNATURE PAGES FOLLOW
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first written above.
REVLON CONSUMER PRODUCTS CORPORATION
By: /s/ Michael T. Sheehan
-----------------------------------------
Name: Michael T. Sheehan
Title: Vice President, Assistant
General Counsel and
Assistant Secretary
REVLON, INC.
By: /s/ Michael T. Sheehan
-----------------------------------------
Name: Michael T. Sheehan
Title: Vice President, Assistant
General Counsel and
Assistant Secretary
ALMAY, INC.
By: /s/ Michael T. Sheehan
-----------------------------------------
Name: Michael T. Sheehan
Title: Vice President, and
Assistant Secretary
CHARLES OF THE RITZ GROUP LTD.
By: /s/ Michael T. Sheehan
-----------------------------------------
Name: Michael T. Sheehan
Title: Vice President, and
Assistant Secretary
CHARLES REVSON INC.
By: /s/ Michael T. Sheehan
-----------------------------------------
Name: Michael T. Sheehan
Title: Vice President, and
Assistant Secretary
COSMETICS & MORE INC.
By: /s/ Michael T. Sheehan
-----------------------------------------
Name: Michael T. Sheehan
Title: Vice President, and
Assistant Secretary
SIGNATURE PAGE TO INTERCREDITOR AGREEMENT
NORTH AMERICA REVSALE INC.
By: /s/ Michael T. Sheehan
-----------------------------------------
Name: Michael T. Sheehan
Title: Vice President and Secretary
PPI TWO CORPORATION
By: /s/ Michael T. Sheehan
-----------------------------------------
Name: Michael T. Sheehan
Title: Vice President and
Assistant Secretary
REVLON CONSUMER CORP.
By: /s/ Michael T. Sheehan
-----------------------------------------
Name: Michael T. Sheehan
Title: Vice President and
Assistant Secretary
REVLON DEVELOPMENT CORP.
By: /s/ Michael T. Sheehan
-----------------------------------------
Name: Michael T. Sheehan
Title: Vice President and
Assistant Secretary
REVLON GOVERNMENT SALES, INC.
By: /s/ Michael T. Sheehan
-----------------------------------------
Name: Michael T. Sheehan
Title: Vice President and
Assistant Secretary
REVLON INTERNATIONAL CORPORATION
By: /s/ Michael T. Sheehan
-----------------------------------------
Name: Michael T. Sheehan
Title: Vice President and
Assistant Secretary
REVLON PRODUCTS CORP.
By: /s/ Michael T. Sheehan
-----------------------------------------
Name: Michael T. Sheehan
Title: Vice President and
Assistant Secretary
SIGNATURE PAGE TO INTERCREDITOR AGREEMENT
REVLON REAL ESTATE CORPORATION
By: /s/ Michael T. Sheehan
-----------------------------------------
Name: Michael T. Sheehan
Title: Vice President and
Assistant Secretary
RIROS CORPORATION,
By: /s/ Michael T. Sheehan
-----------------------------------------
Name: Michael T. Sheehan
Title: Vice President and
Assistant Secretary
RIROS GROUP INC.
By: /s/ Michael T. Sheehan
-----------------------------------------
Name: Michael T. Sheehan
Title: Vice President and
Assistant Secretary
RIT INC.
By: /s/ Michael T. Sheehan
-----------------------------------------
Name: Michael T. Sheehan
Title: Vice President and
Assistant Secretary
REVLON INTERNATIONAL CORPORATION (UK BRANCH)
By: /s/ Michael T. Sheehan
-----------------------------------------
Name: Michael T. Sheehan
Title: Vice President and
Assistant Secretary
REVLON AUSTRALIA PTY LIMITED
By: /s/ Michael T. Sheehan
-----------------------------------------
Name: Michael T. Sheehan
Title: Attorney-in-Fact
EUROPEENNE DE PRODUITS DE BEAUTE, S.A.S.
By: /s/ Michael T. Sheehan
-----------------------------------------
Name: Michael T. Sheehan
Title: Attorney-in-Fact
SIGNATURE PAGE TO INTERCREDITOR AGREEMENT
REVLON S.P.A.
By: /s/ Michael T. Sheehan
-----------------------------------------
Name: Michael T. Sheehan
Title: Director
SIGNATURE PAGE TO INTERCREDITOR AGREEMENT
SIGNED, SEALED and DELIVERED )
by , )
the lawful attorney of ) L. S./s/ Michael Sheehan
REVLON (HONG KONG) LIMITED, )
a Local Borrowing Subsidiary )
in the presence of : )
Witness's signature /s/ Joseph E. Teichman
----------------------------------
Witness's name Joseph E. Teichman
--------------------------------------
Occupation Attorney
--------------------------------------
SIGNATURE PAGE TO INTERCREDITOR AGREEMENT
CITICORP USA, INC., as Term Loan
Administrative Agent
By: /s/ John G. McAuley
-----------------------------------
Name: John G. McAuley
Title: Vice President
CITICORP USA, INC., as Multi-Currency
Administrative Agent
By: /s/ James J. McCarthy
----------------------------------
Name: James J. McCarthy
Title: Vice President/Director
CITICORP USA, INC., as Collateral Agent
By: /s/ James J. McCarthy
----------------------------------
Name: James J. McCarthy
Title: Vice President/Director
SIGNATURE PAGE TO INTERCREDITOR AGREEMENT