EXHIBIT 10.59
CONFORMED AS EXECUTED
INTERCREDITOR AGREEMENT
-----------------------
INTERCREDITOR AGREEMENT (as amended, modified or supplemented from
time to time, this "Agreement"), dated as of December 22, 2003, among Xxxxxx
Xxxxxxx & Co., Incorporated, as Collateral Agent (as defined in below) for the
benefit of the First Lien Creditors (as defined below), Xxxxxx Xxxxxxx Senior
Funding, Inc., as Administrative Agent (as defined in below) for the benefit of
the Bank Lender Creditors (as defined below), Citibank, N.A., as the Overdraft
Creditor (as defined below), and The Bank of New York, as trustee (together with
any successor trustee, the "Additional Senior Secured Notes Trustee") for its
benefit and the benefit of the holders from time to time of the Additional
Senior Secured Notes (as defined below), and acknowledged and agreed to by the
US Credit Parties (as defined in, or incorporated by reference into, the US
Security Agreement referred to below) from time to time party hereto.
Capitalized terms used herein shall have the meaning specified in Section 9
hereof or, if not defined therein, as specified in (or incorporated by reference
into) the US Security Agreement (as defined in the Bank Credit Agreement
referred to below).
WITNESSETH:
----------
WHEREAS, Resolution Performance Products Inc. ("Holdings"), Resolution
Performance Products LLC ("RPP USA"), RPP Capital Corporation ("US Finance
Corp." and, together with RPP USA, the "US Borrowers" and each, a "US
Borrower"), Resolution Europe B.V. (formerly known as Resolution Nederland B.V.)
(the "Dutch Borrower" and, together with the US Borrowers, the "Borrowers" and
each, a "Borrower"), the lenders from time to time party thereto (the
"Lenders"), Xxxxxxx Xxxxx Barney Inc., as Syndication Agent, JPMorgan Chase Bank
(formerly known as Xxxxxx Guaranty Trust Company of New York), as Documentation
Agent, and Xxxxxx Xxxxxxx Senior Funding, Inc., as Lead Arranger, sole Book
Manager and Administrative Agent (in such capacity, together with any successor
administrative agent, the "Administrative Agent"), have entered into a Credit
Agreement, dated as of November 14, 2000 (as amended, modified, extended,
renewed, replaced, restated, supplemented or refinanced from time to time, and
including any agreement extending the maturity of, or refinancing or
restructuring (including, but not limited to, the inclusion of additional
borrowers or guarantors thereunder or any increase in the amount borrowed
thereunder) all or any portion of the indebtedness under such agreement or any
successor agreement, whether or not with the same agent, trustee,
representative, lenders, holders or group of lenders or holders, the "Bank
Credit Agreement"), providing for the making of Loans to the Borrowers and the
issuance of, and participation in, Letters of Credit for the account of the US
Borrowers as contemplated therein (the Lenders, the Administrative Agent, each
Letter of Credit Issuer and the Collateral Agent are herein called the "Bank
Lender Creditors");
WHEREAS, each Borrower or another Assignor has entered into, or may at
any time and from time to time after the date hereof enter into or guaranty the
obligations of one or more other Assignors or Subsidiaries thereof under, one or
more Interest Rate Protection Agreements or Other Hedging Agreements with one or
more Bank Lender Creditors or any affiliate thereof (each such Bank Lender
Creditor or affiliate, even if the respective Bank Lender Creditor subsequently
ceases to be a Lender under the Bank Credit Agreement for any reason, together
with such Bank Lender Creditor's or affiliate's successors and assigns, if any,
collectively, the "Other Creditors");
WHEREAS, RPP USA, one or more Wholly-Owned Subsidiaries of RPP USA and
Citibank, N.A. (or any successor by merger thereto) and/or one or more of its
banking affiliates or another bank reasonably satisfactory to the Administrative
Agent (collectively, the "Overdraft Creditors" and, together with the Bank
Lender Creditors and the Other Creditors, the "Senior First Lien Creditors")
have entered into, or in the future may enter into, a credit arrangement (as
amended, modified, supplemented, replaced or refinanced from time to time, the
"Overdraft Agreement"), providing for (i) the extension of a line of credit or
an overdraft facility (the "Overdraft Line") to RPP USA and such Wholly-Owned
Subsidiaries in the aggregate principal amount not to exceed $20,000,000 at any
time outstanding and (ii) the guaranty by the respective Assignors of the
obligations of one another thereunder (although no Foreign Subsidiary of RPP USA
shall guaranty the obligations of RPP USA or a Domestic Subsidiary thereunder)
(each, an "Overdraft Guaranty" and, collectively, the "Overdraft Guarantees");
WHEREAS, the US Borrowers and the Additional Senior Secured Notes
Trustee have entered into an Indenture, dated as of December 22, 2003 (as
amended, modified, extended, renewed, replaced, restated, supplemented or
refinanced from time to time, and including any agreement extending the maturity
of, or refinancing or restructuring (including, but not limited to, the
inclusion of additional borrowers, issuers or guarantors thereunder or any
increase in the amount borrowed thereunder) all or any portion of the
indebtedness under such Indenture or any successor agreement whether or not with
the same trustee, representative, agent, lenders, holders or group of lenders or
holders, the "Note Credit Agreement" and, together with the Bank Credit
Agreement, collectively, the "Credit Agreement"), providing for (i) the issuance
by the US Borrowers of their 8% Senior Secured Notes due December 15, 2009 (the
"Additional Senior Secured Notes") to the holders thereof from time to time
(such holders, the "Additional Senior Secured Noteholders" and, together with
the Additional Senior Secured Notes Trustee, the "Junior First Lien Creditors";
and the Junior First Lien Creditors, together with the Senior First Lien
Creditors, the "First Lien Creditors") and (ii) the guaranty by any future US
Credit Party that is a Subsidiary Guarantor of the US Borrowers' obligations
under the Note Credit Agreement and the Additional Senior Secured Notes (each
such guaranty, together with the Note Credit Agreement and the Additional Senior
Secured Notes, are herein called the "Note Credit Documents");
WHEREAS, pursuant to each Guaranty entered into pursuant to the Bank
Credit Agreement, each US Credit Party that is a party thereto has guaranteed to
the Bank Lender Creditors and the Other Creditors the payment and performance
when due of all Guaranteed Obligations, all US Guaranteed Obligations or all
Dutch Guaranteed Obligations, as the case may be, as described in each such
Guaranty;
WHEREAS, pursuant to the US Security Agreement and the US Pledge
Agreements, each US Credit Party thereto has granted to the Collateral Agent a
security interest in the Collateral for the benefit of the First Lien Creditors
and the Second Lien Creditors (although the Note Lender Creditors do not have a
security interest in the Additional Senior Secured Notes Excluded Collateral and
the Second Lien Creditors do not have a security interest in the Second Lien
Excluded Collateral);
WHEREAS, pursuant to the Fifth Amendment to the Bank Credit Agreement,
dated as of December 15, 2003, the Required Secured Creditors (determined before
giving effect
-2-
to the amendment to the US Security Agreement dated as of December 22, 2003)
have authorized the Administrative Agent and the Collateral Agent to enter into
this Agreement;
WHEREAS, pursuant to the Note Credit Agreement, the Additional Senior
Secured Notes Trustee has agreed to enter into (and to be bound by), and the
Additional Senior Secured Noteholders have authorized the Additional Senior
Secured Notes Trustee to enter into (on their behalf) (and to be bound by), this
Agreement, in each case on the terms and conditions provided for herein; and
WHEREAS, the First Lien Creditors wish to enter into this Agreement
to, inter alia, set forth the rights, benefits and privileges, as among the
First Lien Creditors, in respect of the Collateral, this Agreement, the US
Security Agreement and the US Pledge Agreements;
NOW, THEREFORE, it is agreed:
1. Appointment; etc. (a) The Junior First Lien Creditors, by their
acceptance of the benefits of the US Security Agreement and each US Pledge
Agreement hereby (x) irrevocably designate Xxxxxx Xxxxxxx & Co., Incorporated as
Collateral Agent (and any successor Collateral Agent) to act as specified herein
and in the applicable US Security Documents, (y) agree to all of the provisions
of this Agreement and (z) agree to all of the provisions of the applicable US
Security Documents (including, without limitation, to all of the provisions of
Annex N to the US Security Agreement). Each Junior First Lien Creditor hereby
irrevocably authorizes, and each holder of any Junior First Lien Obligation by
the acceptance of such Junior First Lien Obligation and by the acceptance of the
benefits of the applicable US Security Documents shall be deemed irrevocably to
authorize, the Collateral Agent to take such action on its behalf under the
provisions of this Agreement and the applicable US Security Documents and any
instruments and agreements referred to herein and therein and to exercise such
powers and to perform such duties thereunder as are specifically delegated to or
required of the Collateral Agent by the terms hereof or thereof and such other
powers as are reasonably incidental thereto. The Collateral Agent may perform
any of its duties hereunder or thereunder by or through its affiliates, agents,
sub-agents or employees.
(b) Each Senior First Lien Creditor (by their acceptance of the
benefits of the applicable Security Documents) also agrees to the provisions of
this Agreement.
2. Priorities with Respect to the Collateral. The Junior First Lien
Creditors hereby acknowledge and agree that all Obligations shall be secured
pursuant to the Security Documents in accordance with the terms thereof,
provided that, notwithstanding anything to the contrary contained in any Secured
Debt Agreement (including any Security Document)), as between the Senior First
Lien Creditors and the Junior First Lien Creditors, the following priorities and
other rights, benefits and privileges with respect to the Collateral and the
applicable Security Documents shall apply:
(i) the security interests granted pursuant to the applicable
Security Documents (x) for the benefit of the Senior First Lien Creditors
shall be senior in priority in all respects to the security interests
granted pursuant thereto for the benefit of the Junior First Lien Creditors
and (y) for the benefit of the Junior First Lien Creditors shall be junior,
-3-
subordinate and subject in all respects to the security interests granted
under the applicable Security Documents for the benefit of the Senior First
Lien Creditors;
(ii) the Junior First Lien Creditors agree that (x) all of their
rights, benefits and privileges afforded to them hereunder and under the
applicable Security Documents are expressly subject to the terms and
conditions of this Agreement and (y) they shall not be entitled to receive
any of the proceeds or other distributions in respect of (or from) any
Collateral until all Senior First Lien Obligations have been paid in full
in cash in accordance with the terms thereof (including, without
limitation, all interest that accrues after the commencement of any case,
proceeding or other action relating to the bankruptcy, insolvency,
reorganization or similar proceeding of any US Credit Party at the rate
provided for in the respective documentation for the Senior First Lien
Obligations, whether or not a claim for post-petition interest is allowed
in any such case, proceeding or other action or under applicable law);
(iii) until all Senior First Lien Obligations have been paid in full
in cash in accordance with the terms thereof, all Letters of Credit under
the Bank Credit Agreement have been terminated, the Total Commitment under
the Bank Credit Agreement has been terminated, all Interest Rate Protection
Agreements and Other Hedging Agreements entered into with Other Creditors
have been terminated and each Overdraft Agreement has been terminated, each
Junior First Lien Creditor hereby agrees (A) to the extent that any
amendment, modification, change, waiver, consent, release or variance to
any of the Security Documents, or any action (or inaction) to be taken (or
not taken) by the Collateral Agent under (or pursuant to, including
pursuant to any of the remedial provisions of) any of the Security
Documents, in either case would require the vote or consent of any of the
Junior First Lien Creditors, whether acting as part of the Required Secured
Creditors, as part of the Required Lender Creditors, as part of the class
of Lender Creditors or otherwise, each such Junior First Lien Creditor
hereby agrees that any such amendment, modification, change, waiver,
consent, release, variance, action or inaction may be taken (or not taken,
as the case may be) at the direction of the Required First Lien Creditors,
provided that, except as permitted by Section 14(b) hereof, in the case of
any amendment, modification, change, waiver, consent, release or variance
to any Security Document materially adversely affecting the rights and
benefits of the Junior First Lien Creditors (and not all First Lien
Creditors in a like or similar manner), such amendment, modification,
change, waiver, release or variance shall be made at the direction of the
Required First Lien Creditors and the Additional Senior Secured Notes
Trustee (acting at the direction of the Additional Senior Secured
Noteholders holding at least a majority of the then outstanding principal
amount of all Additional Senior Secured Notes), and (B) to effectuate the
foregoing, except in cases described in the proviso to preceding clause
(A), each Junior First Lien Creditor hereby (x) authorizes and instructs
the Additional Senior Secured Notes Trustee to (and the Additional Senior
Secured Notes Trustee agrees to) vote (on behalf of the Junior First Lien
Creditors) in a manner consistent with, and to sign any such amendment,
modification, change, waiver, consent, release or variance, or any
direction for any such action or inaction, in either case which has
otherwise been approved by, the Required First Lien Creditors and (y)
constitutes and appoints the Collateral Agent its true and lawful attorney,
irrevocably (which power is coupled with an interest), to sign on behalf of
the Additional Senior Secured Notes Trustee any such
-4-
amendment, modification, change, waiver, consent, release or variance, or
any such action or inaction, to the extent that the Additional Senior
Secured Notes Trustee refuses to sign same as provided above; and
(iv) the Junior First Lien Creditors do not have a security interest
in, and the grant of security interests pursuant to the applicable US
Security Documents for the benefit of the Junior First Lien Creditors shall
not extend to, any Additional Senior Secured Notes Excluded Collateral, and
with respect to the Junior First Lien Creditors, the term "Collateral"
shall not include the Additional Senior Secured Notes Collateral.
3. Application of Proceeds. (a) Except to the extent otherwise
provided in Section 9.4(e) of the US Security Agreement, all moneys collected or
otherwise received by the Collateral Agent pursuant to the applicable US
Security Documents for application to the First Lien Obligations (including, for
the avoidance of doubt, upon any (i) distribution of any Collateral in the event
of any bankruptcy, arrangement, receivership, assignment for the benefit of
creditors or any other action or proceeding involving the readjustment of the
obligations and indebtedness of any US Credit Party or the application of any
Collateral to the payment thereof, (ii) distribution of the Collateral upon the
liquidation or dissolution of any US Credit Party, or the winding up of the
assets or business of any US Credit Party, (iii) realization by the Collateral
Agent or any of the other Secured Creditors with respect to the Liens pursuant
to any Secured Debt Agreement, whether pursuant to a Remedial Action or
otherwise or (iv) Disposition of any Collateral (to the extent that any part of
the proceeds of such Disposition are required to be applied to any of the
Obligations or held by the Collateral Agent in accordance with the provisions of
any of the Security Documents)), shall, as between the Senior First Lien
Creditors and the Junior First Lien Creditors, be distributed or paid to (or
retained by) the Collateral Agent for application in the following manner:
(i) first, an amount equal to the outstanding Senior First Lien
Primary Obligations shall be paid to the Senior First Lien Creditors as
provided in Section 3(e) hereof, with each Senior First Lien Creditor
receiving an amount equal to its outstanding Senior First Lien Primary
Obligations or, if the proceeds are insufficient to pay in full all such
Senior First Lien Primary Obligations, its Senior First Lien Creditor Pro
Rata Share of the amount remaining to be distributed;
(ii) second, to the extent proceeds remain after the application
pursuant to the preceding clause (i), an amount equal to the outstanding
Senior First Lien Secondary Obligations shall be paid to the Senior First
Lien Creditors as provided in Section 3(e) hereof, with each Senior First
Lien Creditor receiving an amount equal to its outstanding Senior First
Lien Secondary Obligations or, if the proceeds are insufficient to pay in
full all such Senior First Lien Secondary Obligations, its Senior First
Lien Creditor Pro Rata Share of the amount remaining to be distributed;
(iii) third, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) and (ii), to the payment of all
amounts owing the Additional Senior Secured Notes Trustee in its capacity
as such pursuant to the Note Credit Agreement; and
-5-
(iv) fourth, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) through (iii), inclusive, an amount
equal to the outstanding Junior First Lien Obligations shall be paid to the
Junior First Lien Creditors as provided in Section 3(e) hereof, with each
Junior First Lien Creditor receiving an amount equal to its outstanding
Junior First Lien Obligations or, if the proceeds are insufficient to pay
in full all such Junior First Lien Obligations, its Junior First Lien
Creditor Pro Rata Share of the amount remaining to be distributed.
(b) (i) For purposes of this Agreement, "Senior First Lien Creditor
Pro Rata Share" shall mean, when calculating a Senior First Lien Creditor's
portion of any distribution or amount, that amount (expressed as a percentage)
equal to a fraction the numerator of which is the then unpaid amount of such
Senior First Lien Creditor's Senior First Lien Primary Obligations or Senior
First Lien Secondary Obligations, as the case may be, and the denominator of
which is the then outstanding amount of all Senior First Lien Primary
Obligations or Senior First Lien Secondary Obligations, as the case may be.
(ii) For the purposes of this Agreement, "Junior First Lien Creditor
Pro Rata Share" shall mean, when calculating a Junior First Lien Creditor's
portion of any distribution or amount, that amount (expressed as a percentage)
equal to a fraction the numerator of which is the then unpaid amount of such
Junior First Lien Creditor's Junior First Lien Obligations and the denominator
of which is the then outstanding amount of all Junior First Lien Obligations.
(c) When payments to the Senior First Lien Creditors are based upon
their respective Senior First Lien Creditor Pro Rata Shares, the amounts
received by such Senior First Lien Creditors hereunder shall be applied (for
purposes of making determinations under this Section 3 only) (i) first, to their
Senior First Lien Primary Obligations and (ii) second, to their Senior First
Lien Secondary Obligations. If any payment to any Senior First Lien Creditor of
its Senior First Lien Creditor Pro Rata Share of any distribution would result
in overpayment to such Senior First Lien Creditor, such excess amount shall
instead be distributed in respect of the unpaid Senior First Lien Primary
Obligations or Senior First Lien Secondary Obligations, as the case may be, of
the other Senior First Lien Creditors, with each Senior First Lien Creditor
whose Senior First Lien Primary Obligations or Senior First Lien Secondary
Obligations, as the case may be, have not been paid in full to receive an amount
equal to such excess amount multiplied by a fraction the numerator of which is
the unpaid Senior First Lien Primary Obligations or Senior First Lien Secondary
Obligations, as the case may be, of such Senior First Lien Creditor and the
denominator of which is the unpaid Senior First Lien Primary Obligations or
Senior First Lien Secondary Obligations, as the case may be, of all Senior First
Lien Creditors entitled to such distribution.
(d) Each of the First Lien Creditors, by their acceptance of the
benefits hereof and of the applicable US Security Documents, agrees and
acknowledges that if the Bank Lender Creditors receive a distribution on account
of undrawn amounts with respect to Letters of Credit issued (or deemed issued)
under the Bank Credit Agreement (which shall only occur after all outstanding
Revolving Loans under the Bank Credit Agreement and all Unpaid Drawings with
respect to such Letters of Credit have been paid in full), such amounts shall be
paid to the Administrative Agent under the Bank Credit Agreement and held by it,
for the equal and ratable benefit of the Bank Lender Creditors, as cash security
for the repayment of the Bank Credit
-6-
Document Obligations owing to the Bank Lender Creditors as such. If any amounts
are held as cash security pursuant to the immediately preceding sentence, then
upon the termination of all outstanding Letters of Credit under the Bank Credit
Agreement, and after the application of all such cash security to the repayment
of all the Bank Credit Document Obligations owing to the Bank Lender Creditors
after giving effect to the termination of all such Letters of Credit, if there
remains any excess cash, such excess cash shall be returned by the
Administrative Agent to the Collateral Agent for distribution in accordance with
Section 3(a) hereof.
(e) All payments required to be made hereunder shall be made (w) if
to the Bank Lender Creditors, to the Administrative Agent for the account of the
Bank Lender Creditors, (x) if to the Other Creditors, to the Representative for
the Other Creditors, or, in the absence of such a Representative, directly to
the Other Creditors, (y) if to the Overdraft Creditors, directly to the
Overdraft Creditors, and (z) if to the Junior First Lien Creditors, to the
Additional Senior Secured Notes Trustee.
(f) For purposes of applying payments received in accordance with
this Section 3, the Collateral Agent shall be entitled to rely upon (i) the
Administrative Agent under the Bank Credit Agreement, (ii) the Representative
for the Other Creditors or, in the absence of such a Representative, upon the
Other Creditors, (iii) the Overdraft Creditors and (iv) the Additional Senior
Secured Notes Trustee, in each case, for a determination (which the
Administrative Agent, each Representative for the Other Creditors, the Overdraft
Creditors, the Additional Senior Secured Notes Trustee and the First Lien
Creditors agree (or shall agree) to provide upon request of the Collateral
Agent) of the outstanding Obligations (and type of Obligations) owed to the Bank
Lender Creditors, the Other Creditors, the Overdraft Creditors or the Junior
First Lien Creditors, as the case may be. Unless it has actual knowledge
(including by way of written notice from a Bank Lender Creditor, an Other
Creditor or an Overdraft Creditor) to the contrary, the Administrative Agent and
each Representative, in furnishing information pursuant to the preceding
sentence, and the Collateral Agent, in acting hereunder, shall be entitled to
assume that no Senior First Lien Secondary Obligations are outstanding. Unless
it has actual knowledge (including by way of written notice from an Other
Creditor) to the contrary, the Collateral Agent, in acting hereunder, shall be
entitled to assume that no Interest Rate Protection Agreements or Other Hedging
Agreements are in existence.
4. Relative Acknowledgment/Priorities of Security Interests and
Liens. (a) Each of the First Lien Creditors acknowledges and agrees (x) to the
relative priorities as to the Collateral (and the application of the proceeds
therefrom) as provided in this Agreement and acknowledges and agrees that such
priorities (and the application of the proceeds from the Collateral) shall not
be affected or impaired in any manner whatsoever including, without limitation,
on account of (i) the invalidity, irregularity, diminution in value or
unenforceability of all or any part of any Secured Debt Agreement or any of the
Obligations thereunder, (ii) the actual date and time of execution, delivery,
recording, filing or perfection of any security interests in the Collateral,
(iii) any nonperfection of any Lien purportedly securing any of the Obligations,
(iv) any amendment, change or modification of any Secured Debt Agreement or (v)
any impairment, modification, change, exchange, release or subordination of or
limitation on, any liability of, or stay of actions or lien enforcement
proceedings against, any US Credit Party, its property, or its estate in
bankruptcy resulting from any bankruptcy, arrangement, readjustment,
composition, liquidation, rehabilitation, similar proceeding or otherwise
involving
-7-
or affecting any US Credit Party, and (y) that the provisions of the US Security
Agreement do not require the US Credit Parties to take certain actions to
perfect a security interest in certain Collateral that may not be perfected by
filing a UCC financing statement.
(b) Each of the First Lien Creditors hereby agrees not to challenge
or question in any proceeding the validity or enforceability of this Agreement
or any Security Document (or any Obligations secured thereunder) (in each case
as a whole or in part or any term or provision contained therein) or the
validity of any Lien, mortgage or financing statement in favor of the Collateral
Agent for the benefit of the respective First Lien Creditors as provided in the
respective Security Document, or the relative priority of any such Lien.
(c) If any First Lien Creditor shall acquire by indemnification,
subrogation, contract or otherwise (including pursuant to the Security
Documents), any lien, estate, right or other interest in, or possession or
control of, any of the assets of any US Credit Party that would otherwise
constitute Collateral to secure (or providing security for) the respective
Obligations owed to such First Lien Creditor, that lien, estate, right or other
interest shall, and any such possession or control shall, be held for the
benefit of the Secured Creditors under the applicable Security Documents and
shall be subject to the relative priorities set forth in such Security Documents
and in this Agreement.
5. Sharing Arrangements. (a) The First Lien Creditors hereby agree
that the provisions of this Agreement with respect to allocations and
distributions of proceeds of the Collateral shall prevail notwithstanding any
event or circumstance, including, without limitation, in the event that, through
the operation of any bankruptcy, reorganization, insolvency or other laws or
otherwise, any of the Senior First Lien Creditors' security interest in the
Collateral is avoided in whole or in part for any reason or is enforced with
respect to some, but not all, of the Senior First Lien Obligations then
outstanding.
(b) The First Lien Creditors agree that none of them shall be
entitled to benefit from any avoidance action affecting or otherwise relating to
any distribution or allocation made in accordance with this Agreement, whether
by preference or otherwise, it being understood and agreed that the benefit of
any such avoidance action otherwise allocable to them shall instead be allocated
and turned over for application in accordance with the priorities set forth in
this Agreement.
(c) In the event that any payment or distribution shall be received
by any First Lien Creditor in a manner that is inconsistent with the provisions
of Section 3 hereof, such payment or distribution shall be held by the
respective First Lien Creditor for the benefit of, and shall be paid over or
delivered to, the respective First Lien Creditors entitled thereto for
application to such entitled First Lien Creditors' Obligations (including,
without limitation, all interest that accrues after the commencement of any
case, proceeding or other action relating to the bankruptcy, insolvency,
reorganization or similar proceeding of any US Credit Party at the rate provided
for in the respective documentation for such Obligations, whether or not a claim
for post-petition interest is allowed in any such case, proceeding or other
action or under applicable law) in accordance with Section 3 hereof.
-8-
6. Provisions in the Event of Insolvency Proceedings. Without
limiting the other provisions of this Agreement, upon the commencement of a case
under the Bankruptcy Code by or against any US Credit Party:
(a) This Agreement and the Security Documents shall remain in full
force and effect and enforceable pursuant to their respective terms in
accordance with Section 510(a) of the Bankruptcy Code, and all references
herein to such US Credit Party shall be deemed to apply to such entity as
debtor-in-possession and to any trustee in bankruptcy for the estate of
such entity.
(b) In any such case under the Bankruptcy Code, each Junior First
Lien Creditor agrees not to take any action or vote in any way so as to
contest (1) the validity or enforceability of this Agreement or any of the
Security Documents or any of the Obligations thereunder, (2) the validity,
priority or enforceability of the Liens, mortgages, assignments and
security interests granted and/or established pursuant to this Agreement or
the Security Documents with respect to the Senior First Lien Obligations,
or (3) the relative rights, benefits, privileges and duties of the holders
of the Senior First Lien Obligations and the Junior First Lien Obligations
granted and/or established in this Agreement or any Security Document with
respect to such Liens, mortgages, assignments and security interests.
(c) So long as any Senior First Lien Obligations are outstanding,
without the express written consent of the Required First Lien Creditors,
none of the Junior First Lien Creditors (or their representative) shall (i)
with respect to any rights under any Secured Debt Agreement, seek in
respect of any part of the Collateral or proceeds thereof or any Lien which
may exist thereon, any relief from or modification of the automatic stay as
provided in Section 362 of the Bankruptcy Code or seek or accept any form
of adequate protection under either or both Sections 362 and 363 of the
Bankruptcy Code with respect thereto to the extent that their receipt of
any such adequate protection would reduce (or would have the effect of
reducing) or adversely affect the adequate protection that the Senior First
Lien Creditors otherwise would be entitled to receive (it being understood
that, in any event, any such adequate protection shall only be afforded to
the Junior First Lien Creditors if the Senior First Lien Creditors are
satisfied with the adequate protection afforded to the Senior First Lien
Creditors), (ii) oppose or object to any Senior First Lien Creditor
obtaining a Lien or grant of administrative claim in connection with a
grant of adequate protection, use of cash collateral or post-petition
financing under Section 362, 363 or 364 of the Bankruptcy Code on the basis
that the Junior First Lien Creditors are not receiving any adequate
protection or are not receiving satisfactory adequate protection, (iii)
oppose or object to the use of cash collateral by a US Credit Party on the
basis that the Junior First Lien Creditors are not receiving any adequate
protection or are not receiving satisfactory adequate protection, (iv)
oppose or object to any post-petition financing (including any
debtor-in-possession financing) provided by any of the Senior First Lien
Creditors or provided by a third party pursuant to Section 364 of the
Bankruptcy Code on terms acceptable to the Required First Lien Creditors on
the basis that the Junior First Lien Creditors are not receiving any
adequate protection or are not receiving satisfactory adequate protection,
(v) oppose or object to or withhold consent from the disposition of assets
by any US Credit Party under Section 363(b) or (f) of the
-9-
Bankruptcy Code, provided that the interest, if any, which the Junior First
Lien Creditors have in the assets shall attach to the proceeds of such
disposition, on the basis that the Junior First Lien Creditors are not
receiving any adequate protection or are not receiving satisfactory
adequate protection, (vi) oppose, object to, or vote against any plan of
reorganization or disclosure statement the terms of which are consistent
with the rights of the Senior First Lien Creditors under this Agreement and
the Security Documents under which the Liens, mortgages, assignments and
security interests and the priority thereof are granted and established on
the basis that the Junior First Lien Creditors are not receiving any
adequate protection or are not receiving satisfactory adequate protection,
(vii) make an election pursuant to Section 1111(b) of the Bankruptcy Code,
(viii) oppose or object to the determination of the extent of any Liens
held by any of the Senior First Lien Creditors or the value of any claims
of Senior First Lien Creditors under Section 506(a) of the Bankruptcy Code,
or (ix) oppose or object to the payment of interest and expenses as
provided under Sections 506(b) and (c) of the Bankruptcy Code.
(d) The Senior First Lien Obligations owed to each Senior First Lien
Creditor under the Security Documents shall continue to be effective, or to
be reinstated, as the case may be, as to any payment in respect of any
Senior First Lien Obligation that is rescinded or must otherwise be
returned by the holder of such Senior First Lien Obligation upon the
occurrence or as a result of applicable provisions of the Bankruptcy Code,
all as though such payment had not been made.
7. Waivers. (a) Each Junior First Lien Creditor agrees that neither
the Collateral Agent nor the Senior First Lien Creditors (in directing the
Collateral Agent to take any action with respect to the Collateral) shall have
any duty or obligation to realize first upon any type of Collateral (including
Additional Senior Secured Notes Excluded Collateral) or to sell, dispose of or
otherwise liquidate all or any portion of the Collateral in any manner that
would maximize the return to any Class (or portion of a Class) of First Lien
Creditors holding Obligations of any type (whether Bank Credit Document
Obligations, Other Obligations, Overdraft Obligations or Junior First Lien
Obligations), notwithstanding that the order and timing of any such realization,
sale, disposition or liquidation may affect the amount of proceeds actually
received by such Class (or portion of a Class) of First Lien Creditors from such
realization, sale, disposition or liquidation.
(b) Each of the Junior First Lien Creditors waives any claim which
each such Junior First Lien Creditor may now or hereafter have against the
Senior First Lien Creditors (or their representatives) arising out of (i) any
and all actions which the Collateral Agent or the other Senior First Lien
Creditors take or omit to take (including, without limitation, actions with
respect to the creation, perfection or continuation of Liens on the Collateral,
actions with respect to the occurrence of an Event of Default, actions with
respect to the foreclosure upon, sale, release, or depreciation of, or failure
to realize upon, any of the security for the Obligations and actions with
respect to the collection of any claim for all or any part of the Obligations
from any account debtor, guarantor or any other party) with respect to the
respective Secured Debt Agreements or any other agreement related thereto or to
the collection of the Obligations or the valuation, use, protection or release
of the security for the Obligations, (ii) the Collateral Agent's or the other
Senior First Lien Creditors' election, in any proceeding instituted under the
Bankruptcy Code, of the application of Section 1111(b) of the Bankruptcy Code
and/or (iii) any
-10-
borrowing of, or grant of a security interest or administrative expense priority
under Section 364 of the Bankruptcy Code to, any US Credit Party as
debtor-in-possession.
8. Nature of Obligations; Post-Petition Interest. Each Junior First
Lien Creditor hereby acknowledges and agrees that (i) the Junior First Lien
Creditors' claims against the US Credit Parties in respect of the Collateral
constitute junior and subordinated claims separate and apart (and of a different
class) from the claims of the Senior First Lien Creditors against the US Credit
Parties in respect of the Collateral and (ii) the Senior First Lien Obligations
include all interest that accrues after the commencement of any case, proceeding
or other action relating to the bankruptcy, insolvency, reorganization or
similar proceeding of any US Credit Party at the rate provided for in the
respective Secured Debt Agreements governing the same, whether or not a claim
for post-petition interest is allowed in any such case, proceeding or other
action or under applicable law. To further effectuate the intent of the parties
as provided in the immediately preceding sentence, the Senior First Lien
Creditors 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 at the relevant contract rate
(even though such claims may or may not be allowed in whole or in part in the
respective bankruptcy, insolvency, reorganization or similar proceeding or under
applicable law) before any distribution is made in respect of the claims held by
the Junior First Lien Creditors, with each Junior First Lien Creditor hereby
acknowledging and agreeing to turn over to the Senior First Lien Creditors all
amounts otherwise received or receivable by it to the extent needed to
effectuate the intent of this sentence even if such turn-over of amounts has the
effect of reducing the amount of the claim of the Junior First Lien Creditors.
9. Definitions. The following terms shall have the meanings herein
specified. Such definitions shall be equally applicable to the singular and
plural forms of the terms defined.
"Additional Senior Secured Noteholders" shall have the meaning
provided in the recitals to this Agreement.
"Additional Senior Secured Notes" shall have the meaning provided in
the recitals to this Agreement.
"Additional Senior Secured Notes Trustee" shall have the meaning
provided in the preamble to this Agreement.
"Administrative Agent" shall have the meaning provided in the recitals
to this Agreement.
"Agreement" shall have the meaning provided in the preamble to this
Agreement.
"Bank Credit Agreement" shall have the meaning provided in the
recitals to this Agreement.
"Bank Credit Document Obligations" shall have the meaning provided in
clause (i) of the definition of "Obligations" appearing in this Section 9.
-11-
"Bank Lender Creditors" shall have the meaning provided in the
recitals to this Agreement.
"Bankruptcy Code" shall mean Title 11 of the United States Code
entitled "Bankruptcy", as now or hereafter in effect, or any successor thereto.
"Borrowers" shall have the meaning provided in the recitals to this
Agreement.
"Class" shall have the meaning provided in Section 14(a) of this
Agreement.
"Collateral" shall mean all "Collateral" (or similar defined term)
under, and as defined in, the US Security Agreement and each US Pledge Agreement
but, in any event, for the purposes of this Agreement, the term "Collateral"
shall specifically exclude Additional Senior Secured Notes Excluded Collateral.
"Collateral Agent" shall mean Xxxxxx Xxxxxxx & Co., Incorporated (and
any successor Collateral Agent) acting as Collateral Agent pursuant to this
Agreement and any Security Document.
"Credit Agreement" shall have the meaning provided in the recitals to
this Agreement.
"Disposition" means the sale, assignment, transfer, lease, conveyance
or other disposition by any US Credit Party of any Collateral, including,
without limitation, an involuntary disposition as a result of a casualty or
condemnation.
"Dutch Borrower" shall have the meaning provided in the recitals to
this Agreement.
"First Lien Creditors" shall have the meaning provided in the recitals
of this Agreement.
"Holdings" shall have the meaning provided in the recitals to this
Agreement.
"Junior First Lien Creditor Pro Rata Share" shall have the meaning
provided in Section 3(b)(ii) of this Agreement.
"Junior First Lien Creditors" shall have the meaning provided in the
recitals to this Agreement.
"Junior First Lien Obligations" shall have the meaning provided in
clause (iv) of the definition of "Obligations" appearing in this Section 9.
"Lenders" shall have the meaning provided in the recitals to this
Agreement.
"Obligations" shall mean and include all of the following:
(i) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, indebtedness
and liabilities (including, with-
-12-
out limitation, indemnities, fees and interest thereon (including, without
limitation, all interest that accrues after the commencement of any case,
proceeding or other action relating to the bankruptcy, insolvency,
reorganization or similar proceeding of any US Credit Party at the rate
provided for in the respective documentation, whether or not a claim for
post-petition interest is allowed in any such case, proceeding or other
action or under applicable law)) owing by each US Credit Party to the Bank
Lender Creditors, whether now existing or hereafter incurred under, arising
out of, or in connection with the Bank Credit Agreement and the other Bank
Credit Documents (including all such obligations, liabilities and
indebtedness of any US Credit Party under any guaranty constituting a Bank
Credit Document) and the due performance and compliance by each US Credit
Party with all of the terms, conditions and agreements contained in the
Bank Credit Agreement and in such other Bank Credit Documents (all such
obligations, indebtedness and liabilities under this clause (i), except to
the extent consisting of obligations or indebtedness with respect to
Interest Rate Protection Agreements or Other Hedging Agreements, being
herein collectively called the "Bank Credit Document Obligations");
(ii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, indebtedness
and liabilities (including, without limitation, indemnities, fees and
interest thereon (including, without limitation, all interest that accrues
after the commencement of any case, proceeding or other action relating to
the bankruptcy, insolvency, reorganization or similar proceeding of any US
Credit Party at the rate provided for in the respective documentation,
whether or not a claim for post-petition interest is allowed in any such
case, proceeding or other action or under applicable law)) owing by each US
Credit Party to the Other Creditors under, or with respect to (including
all such obligations, indebtedness and liabilities of any US Credit Party
under any guaranty of), any Interest Rate Protection Agreement or Other
Hedging Agreement, whether such Interest Rate Protection Agreement or Other
Hedging Agreement is now in existence or hereafter arising, and the due
performance and compliance by each US Credit Party with all of the terms,
conditions and agreements contained therein (all such obligations,
liabilities and indebtedness under this clause (ii) being herein
collectively called the "Other Obligations");
(iii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities and
indebtedness (including, without limitation, indemnities, fees and interest
thereon (including, without limitation, all interest that accrues after the
commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency, reorganization or similar proceeding of any
Assignor at the rate provided for in the respective documentation, whether
or not a claim for post-petition interest is allowed in any such case,
proceeding or other action or under applicable law)) owing by each US
Credit Party to the Overdraft Creditors under, or with respect to, the
Overdraft Agreement (including all such obligations, liabilities and
indebtedness under the Overdraft Line and under each Overdraft Guaranty to
which any US Credit Party is a party) (all such obligations, liabilities
and indebtedness under this clause (iii) being herein collectively called
the "Overdraft Obligations"); and
-13-
(iv) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities and
indebtedness (including, without limitation, indemnities, fees and interest
thereon (including, without limitation, all interest that accrues after the
commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency, reorganization or similar proceeding of any US
Credit Party at the rate provided for in the respective documentation,
whether or not a claim for post-petition interest is allowed in any such
case, proceeding or other action or under applicable law)) of each US
Credit Party owing to the Junior First Lien Creditors, whether now existing
or hereafter incurred under, arising out of, or in connection with the
Additional Senior Secured Notes and the other Note Credit Documents
(including all such obligations, indebtedness and liabilities of any US
Credit Party under any guaranty constituting a Note Credit Document) and
the due performance and compliance by each US Credit Party with all of the
terms, conditions and agreements contained in the Additional Senior Secured
Notes and in such other Note Credit Documents (all such obligations,
liabilities and indebtedness under this clause (iv) being herein
collectively called the "Junior First Lien Obligations");
it being acknowledged and agreed that the "Obligations" shall include extensions
of credit of the types described above, whether outstanding on the date of this
Agreement or extended from time to time after the date of this Agreement.
"Other Creditors" shall have the meaning provided in the recitals to
this Agreement.
"Other Obligations" shall have the meaning provided in clause (ii) of
the definition of "Obligations" appearing in this Section 9.
"Overdraft Agreement" shall have the meaning provided in the recitals
to this Agreement.
"Overdraft Creditors" shall have the meaning provided in the recitals
to this Agreement.
"Overdraft Guaranty" shall have the meaning provided in the recitals
to this Agreement.
"Overdraft Line" shall have the meaning provided in the recitals to
this Agreement.
"Overdraft Obligations" shall have the meaning provided in clause
(iii) of the definition of "Obligations" appearing in this Section 9.
"Remedial Actions" shall mean any claim, proceeding or action to
foreclose upon, take possession or control of, sell, lease or otherwise dispose
of, or in any other manner realize, take steps to realize or seek to realize
upon, the whole or any part of any Collateral, whether pursuant to the UCC, by
foreclosure, by setoff, by self-help repossession, by notification to account
debtors, by deed in lieu of foreclosure, by exercise of power of sale, by
judicial action or
-14-
otherwise, or the exercise of any other remedies with respect to any Collateral
available under any of the Security Documents, or under applicable law.
"Required Bank Lender Creditors" shall mean the "Required Lenders"
under, and as defined in, the Bank Credit Agreement.
"Required First Lien Creditors" shall mean (i) at any time when any
Bank Credit Document Obligations are outstanding or any Commitments or Letters
of Credit under the Bank Credit Agreement exist, the Required Bank Lender
Creditors (or, to the extent provided in Section 15.12 of the Bank Credit
Agreement, each of the Lenders), (ii) at any time after all of the Bank Credit
Document Obligations have been paid in full in cash in accordance with the terms
thereof and all Commitments and Letters of Credit under the Bank Credit
Agreement have been terminated, the holders of a majority of the Other
Obligations, and (iii) at any time after all Bank Credit Document Obligations
and Other Obligations have been paid in full in cash in accordance with the
terms thereof, all Interest Rate Protection Agreements and Other Hedging
Agreements entered into with an Other Creditor have been terminated and all
Commitments and Letters of Credit under the Bank Credit Agreement have been
terminated, the holders of a majority of the outstanding Overdraft Obligations.
"Requisite Creditors" shall have the meaning provided in Section 14(a)
of this Agreement.
"RPP USA" shall have the meaning provided in the recitals of this
Agreement.
"Senior First Lien Creditor Pro Rata Share" shall have the meaning
provided in Section 3(b)(i) of this Agreement.
"Senior First Lien Creditors" shall have the meaning provided in the
recitals to this Agreement.
"Senior First Lien Obligations" shall mean all Bank Credit Document
Obligations, all Other Obligations and all Overdraft Obligations.
"Senior First Lien Primary Obligations" shall mean (i) in the case of
the Bank Credit Document Obligations, all principal of, premium (if any), and
interest on, all Loans under the Bank Credit Agreement, all Unpaid Drawings that
may occur with respect to outstanding Letters of Credit under the Bank Credit
Agreement and all fees owing pursuant to the Credit Agreement, (ii) in the case
of Other Obligations, all amounts due under any Interest Rate Protection
Agreements or Other Hedging Agreements (other than indemnities, fees (including,
without limitation, attorneys' fees) and similar obligations and liabilities),
and (iii) in the case of the Overdraft Obligations, all principal of, premium
(if any), interest on, and regularly accruing fees with respect to, the
Overdraft Agreement.
"Senior First Lien Secondary Obligations" shall mean all Senior First
Lien Obligations other than Senior First Lien Primary Obligations.
"US Borrowers" shall have the meaning provided in the recitals to this
Agreement.
-15-
"US Finance Corp." shall have the meaning provided in the recitals to
this Agreement.
10. Each party hereto hereby represents and warrants that (i) such
party has the power and authority to execute, deliver and perform the terms and
provisions of this Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Agreement and (ii) such party
has duly executed and delivered this Agreement, and that this Agreement
constitutes its legal, valid and binding obligation enforceable in accordance
with its terms, except to the extent that the enforceability hereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law).
11. Notices. Except as otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be in writing and shall be deemed to have been duly given or made
when delivered to the party to which such notice, request, demand or other
communication is required or permitted to be given or made under this Agreement,
addressed in the manner provided in the US Security Agreement.
12. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY
TRIAL. (a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF
THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS). ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS
OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
NEW YORK, IN EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HEREBY IRREVOCABLY ACCEPTS
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFOREMENTIONED COURTS. EACH PARTY HEREBY FURTHER IRREVOCABLY
WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER SUCH
PARTY, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT BROUGHT IN ANY OF THE AFOREMENTIONED COURTS, THAT SUCH
COURTS LACK PERSONAL JURISDICTION OVER SUCH PARTY. EACH PARTY FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS SET
FORTH IN THE US SECURITY AGREEMENT UNTIL ANOTHER ADDRESS IS PROVIDED IN
ACCORDANCE WITH THE US SECURITY AGREEMENT, SUCH SERVICE TO BECOME EFFECTIVE 30
DAYS AFTER SUCH MAILING. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO
SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD
OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED
-16-
HEREUNDER THAT SUCH SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE IF
IN CONFORMITY WITH THE FOREGOING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF PARTY
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY OTHER PARTY IN ANY OTHER
JURISDICTION.
(b) EACH PARTY HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR
PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT BROUGHT IN THE
COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND
AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT.
13. Miscellaneous. This Agreement shall be binding upon the US
Credit Parties and the First Lien Creditors and shall inure to the benefit of
and be enforceable by the successors and assigns of such Persons. Each of the
agreements and acknowledgments made by each First Lien Creditor is made on
behalf of itself and its successors and assigns and is deemed effective by
virtue of such First Lien Creditors acceptance of the benefits of the applicable
US Security Documents. The headings in this Agreement are for purposes of
reference only and shall not limit or define the meaning hereof. This Agreement
may be executed in any number of counterparts, each of which shall be an
original, but all of which shall constitute one instrument. In the event that
any provision of this Agreement shall prove to be invalid or unenforceable, such
provision shall be deemed to be severable from the other provisions of this
Agreement which shall remain binding on all parties hereto.
14. Amendment; Waiver. (a) None of the terms and conditions of this
Agreement or any of the defined terms contained in the US Security Agreement
that are incorporated herein pursuant to the terms of this Agreement (but only
insofar as such terms are used in this Agreement) may be amended, changed,
waived, modified or varied in any manner whatsoever unless in writing duly
signed by the Collateral Agent (with the consent of the Required First Lien
Creditors only); provided, (i) that any such amendment, change, waiver,
modification or variance (x) affecting the rights and benefits of a single Class
of Senior First Lien Creditors (and not all such Senior First Lien Creditors in
a like or similar manner) shall require the written consent of the Requisite
Creditors of such Class of Senior First Lien Creditors and (y) materially
adversely affecting the rights and benefits of the Junior First Lien Creditors
(and not all First Lien Creditors in a like or similar manner) shall require the
written consent of the Requisite Creditors of the Junior First Lien Creditors
unless such amendment is of the type described in Section 14(b) hereof, and (ii)
that any amendment, change, waiver, modification or variance to the extent
relating to any Additional Senior Secured Notes Lien Excluded Collateral
-17-
may be made without the consent of the Junior First Lien Creditors. For the
purpose of this Agreement, the term "Class" shall mean each class of First Lien
Creditors, i.e., whether (w) the Bank Lender Creditors as holders of the Bank
Credit Document Obligations, (x) the Other Creditors as the holders of the Other
Obligations, (y) the Overdraft Creditors as holders of the Overdraft Obligations
or (z) the Junior First Lien Creditors as holders of the Junior First Lien
Obligations. For the purpose of this Agreement, the term "Requisite Creditors"
of any Class shall mean (w) with respect to the Bank Credit Document
Obligations, the Required Bank Lender Creditors (or all of the Lenders if
required by Section 15.12 of the Credit Agreement), (x) with respect to the
Other Obligations, the holders of at least a majority of all obligations
outstanding from time to time under the Interest Rate Protection Agreements and
Other Hedging Agreements entered into with Other Creditors, (y) with respect to
the Overdraft Obligations, the holders of at least a majority of the outstanding
Overdraft Obligations and (z) with respect to the Junior First Lien Obligations,
the Additional Senior Secured Notes Trustee (acting at the direction of
Additional Senior Secured Noteholders holding at least a majority of the then
outstanding aggregate principal amount of Additional Senior Secured Notes).
(b) Notwithstanding anything to the contrary contained in this
Agreement and as permitted by the Note Credit Agreement, the Junior First Lien
Creditors hereby agree that the Required First Lien Creditors may at any time
and from time to time agree to amend, modify or supplement this Agreement and
each of the Security Documents to secure additional extensions of credit and add
new creditors as "Secured Creditors" under this Agreement and such Security
Documents (either as part of an existing class or as a newly created class), so
long as such amendments, modifications or supplements do not expressly violate
the provisions of the Bank Credit Agreement or the Note Credit Agreement, and to
the extent that any such amendment, modification or supplement to any of the
Security Documents would otherwise require the consent of all or any portion of
the Junior First Lien Creditors, such Junior First Lien Creditors shall give
such consent as provided in Section 2(iii) hereof.
15. Right to Amend, etc. As between the Junior First Lien Creditors
on the one hand and the Senior First Lien Creditors (including, without
limitation, the Lenders) on the other hand, it is agreed that the Senior First
Lien Creditors may at any time and from time to time, in their sole discretion,
and without any obligation to give any notice or receive any consent from the
Junior First Lien Creditors, (i) change the manner, place or terms of payment,
or change or extend the time of payment of, or renew, alter, refinance, increase
or add to the Senior First Lien Obligations, or (ii) obtain, release, or dispose
of any Collateral for the Senior First Lien Obligations, and the provisions of
this Agreement shall continue in full force and effect with respect to all such
Senior First Lien Obligations.
16. Further Assurances. Each First Lien Creditor agrees to take such
further action and shall execute and deliver to the Administrative Agent, the
Collateral Agent and the other First Lien Creditors such additional documents
and instruments (in recordable form, if requested) as the Collateral Agent or
the Required First Lien Creditors may reasonably request to effectuate the terms
of and agreements contemplated by this Agreement.
17. Additional US Credit Parties. It is understood and agreed that
any Subsidiary of Holdings that is a US Credit Party and is required to execute
a counterpart of the US Security Agreement after the date hereof pursuant to the
respective Secured Debt Agreements shall
-18-
execute a counterpart hereof and deliver the same to the Collateral Agent and
shall automatically become a party hereunder.
18. Termination. This Agreement shall terminate on the first date
upon which the (i) Total Commitment under the Bank Credit Agreement has been
terminated and all Interest Rate Protection Agreements and Other Hedging
Agreements entered into with any Other Creditors have been terminated and all
Other Obligations have been repaid in full in cash in accordance with the terms
thereof, no Note under the Bank Credit Agreement is outstanding and all Loans
and other Bank Credit Document Obligations thereunder have been repaid in full
in cash in accordance with the terms thereof and all Letters of Credit issued
under the Bank Credit Agreement have been terminated, and (ii) the Overdraft
Line has been terminated and all outstanding Overdraft Obligations thereunder
and under the Overdraft Agreement have been repaid in full in cash in accordance
with the terms thereof.
19. Inconsistent Provisions. If any provision of this Agreement or
any provision in any Security Document shall be inconsistent with, or contrary
to, any provision of the Note Credit Documents, then to the maximum extent
permitted under applicable law the provision in this Agreement and the
respective Security Documents shall be controlling, and shall supersede such
inconsistent provision to the extent necessary to give full effect to all
provisions contained in this Agreement and the Security Documents.
* * *
-19-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered by their duly authorized officers as of the date first
above written.
XXXXXX XXXXXXX & CO., INCORPORATED,
as Collateral Agent
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Title: Managing Director
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Administrative Agent on behalf of
the Bank Lender Creditors
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Title: Vice President
CITIBANK, N.A., as the Overdraft
Creditor
By: /s/ Xxxxx Xxxx
----------------------------------
Title: Vice President
THE BANK OF NEW YORK, as Additional
Senior Secured Notes Trustee on its
own behalf and for the benefit of the
Junior First Lien Creditors
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Title: Assistant Treasurer
Acknowledged and Agreed to:
RESOLUTION PERFORMANCE PRODUCTS INC.
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------------
Title: Vice President and General
Counsel
RESOLUTION PERFORMANCE PRODUCTS LLC
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------------
Title: Vice President and General
Counsel
RPP CAPITAL CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------------
Title: Vice President and General
Counsel
