Exhibit 10.5


 


Execution Copy


 


AMENDED AND RESTATED INTERCREDITOR AGREEMENT


 


AMENDED AND
RESTATED INTERCREDITOR AGREEMENT (as amended, modified or supplemented from
time to time, this “Agreement”), dated as of December 22, 2003, as
amended and restated on the Restatement Effective Date (as defined below),
among General Electric Capital Corporation, as Collateral Agent (as defined
below) for the benefit of the First Lien Creditors (as defined below), in such
capacity as successor to Morgan Stanley & Co., Incorporated (the “Original
Collateral Agent”) and as Agent (as defined in below) for the benefit of
the Bank Lender Creditors (as defined below), in such capacity as successor
agent to Morgan Stanley Senior Funding, Inc. (the “Original Agent”), 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).


 


W I T N E S S E T H :


 


WHEREAS,
Resolution Performance Products Inc. (“Holdings”), Resolution Performance
Products LLC (“RPP USA”), RPP Capital Corporation (“US Finance Corp.”
and, together with RPP USA, the “Original US Borrowers” and each, an “Original
US Borrower”), Resolution Europe B.V. (formerly known as Resolution
Nederland B.V.) (the “Original Dutch Borrower”), the lenders from time
to time party thereto (the “Original Lenders”), Salomon Smith Barney
Inc., as Syndication Agent, JPMorgan Chase Bank (formerly known as Morgan
Guaranty Trust Company of New York), as Documentation Agent, and Morgan Stanley
Senior Funding, Inc., as Lead Arranger, sole Book Manager and Original Agent,
have entered into a Credit Agreement, dated as of November 14, 2000 (as
amended, modified or supplemented through, but not including, the date hereof,
the “Original Bank Credit Agreement”) providing for the making of Loans
(as defined in the Original Bank Credit Agreement) to the Original US Borrowers
and the Dutch Borrower and the issuance of, and participation in, Letters of
Credit (as defined in the Original Bank Credit Agreement) for the account of
the Original US Borrowers as contemplated therein (the Original Lenders, the
Original Agent, each Letter of Credit Issuer (as defined in the Original Bank
Credit Agreement) thereunder, and the Original Collateral Agent are herein
called the “Original Bank Lender Creditors”).


 


WHEREAS, RPP
USA and certain other entities from time to time designated as US borrowers
thereunder (the “US Borrowers”), the Original Dutch Borrower and certain
other entities from time to time designated as Netherlands Borrowers
thereunder, Holdings, US Finance Corp., 
the other Credit Parties from time to time party thereto,  the financial institutions


 





















 


from time to time party thereto (the “Lenders”), General Electric
Capital Corporation, as US L/C Issuer, as Collateral Agent, as a US Lender, and
as US Agent (in such capacity, together with any successor agent, the “US Agent”),
and GE Leveraged Loans Limited, as Netherlands L/C Issuer, as Netherlands
Security Trustee, as a Netherlands Lender, and as Netherlands Agent (in such
capacity, together with any successor agent, the “Netherlands Agent”)
have entered into a Credit Agreement, dated as of January 24, 2005 (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 refinancing in full of the Original
Bank Credit Agreement and the making of Loans to the US Borrowers and the
issuance of, and participation in, Letters of Credit for the account of the US
Borrowers as contemplated therein (the Lenders, the US Agent, the Netherlands
Agent, the US L/C Issuer, the Netherlands L/C Issuer, the Netherlands Security
Trustee and the Collateral Agent are herein called the “Bank Lender
Creditors”);


 


WHEREAS, the
Original Collateral Agent and the Additional Senior Notes Trustee are parties
to an Intercreditor Agreement, dated December 22, 2003, as heretofore amended,
as acknowledged and agreed to by the Original US Borrowers and certain of their
affiliates (the “Original
Intercreditor Agreement”);


 


WHEREAS,
pursuant to a notice of resignation, dated January 24, 2005 (the “Resignation”),
the Original Collateral Agent has given notice of its resignation as Collateral
Agent pursuant to Section 8(b) of Annex N to the US Security Agreement, such
resignation to be effective as of the Restatement Effective Date;


 


WHEREAS,
pursuant to Annex N of the US Security Agreement, the Required Secured
Creditors have appointed General Electric Capital Corporation as Collateral
Agent, effective as of the Restatement Effective Date;


 


WHEREAS, each
US 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 Hedge
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” and together with the Bank Lender Creditors, the “Senior
First Lien Creditors”);


 


WHEREAS, the Original
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


 


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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 Original 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 Original 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 the US 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
as described in each such Guaranty;


 


WHEREAS,
pursuant to the US Security Agreement, the US Pledge Agreement (as such term is
defined in the Bank Credit Agreement) and the Netherlands Pledge Agreement (as
such term is defined in the Bank Credit Agreement), 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 Bank Credit Agreement, the Required Secured Creditors have
authorized the US 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), the Original
Intercreditor Agreement, in each case on the terms and conditions provided for
herein;


 


WHEREAS, the Required
First Lien Creditors wish to amend and restate the Original Intercreditor
Agreement effective on the Restatement Effective Date as set forth below, 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, the US Pledge Agreement and the Netherlands Pledge Agreement; and


 


WHEREAS, as of
the Restatement Effective Date, General Electric Capital Corporation shall
constitute the Required First Lien Creditors.


 


NOW,
THEREFORE, it is agreed that the Original Intercreditor Agreement is hereby
amended and restated as follows:


 


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1.             Appointment;
etc.


 


(a)           The Junior First Lien Creditors, by their acceptance of the
benefits of the US Security Agreement, the US Pledge Agreement [and the
Netherlands Pledge Agreement] hereby (x) irrevocably designate General Electric
Capital Corporation 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 and such affiliates, agents, sub-agents and employees shall be
afforded all of the Collateral Agent’s rights hereunder and under any US
Security Document.


 


(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, 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


 


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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 Commitments under the Bank
Credit Agreement have been terminated and all Hedge Agreements entered into
with Other Creditors have 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 Requisite 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 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 Excluded Collateral.


 


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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


 


(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


 


6





















 


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 unreimbursed Letter of
Credit Obligations with respect to such Letters of Credit have been paid in
full), such amounts shall be paid to the US 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 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 US 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 US 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


 


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Representative, directly to the Other
Creditors and (y) 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 US 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, and (iii) the Additional Senior
Secured Notes Trustee, in each case, for a determination (which the US Agent, each
Representative for the Other 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 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 or an Other Creditor) to the
contrary, the US 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 Hedge 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 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


 


8





















 


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.


 


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


 


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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
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


 


10





















 


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 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 borrowing of, or grant of a security interest or
administrative expense priority under Section 364 of the Bankruptcy Code to,
any 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


 


11





















 


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.


 


“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.


 


“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.


 


“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, the US Pledge Agreement and the Netherlands Pledge
Agreement but, in any event, for the purposes of this Agreement, the term “Collateral”
shall specifically exclude Additional Senior Secured Notes Excluded Collateral.


 


12





















 


“Collateral
Agent” shall mean General Electric Capital Corporation, as successor agent
to Morgan Stanley & Co., Incorporated, 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.


 


“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 (iii) of
the definition of “Obligations” appearing in this Section 9.


 


“Lenders”
shall have the meaning provided in the recitals to this Agreement.


 


“Netherlands
Agent” shall have the meaning provided in the recitals to this Agreement.


 


“Netherlands
Security Trustee” 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, 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 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


 


13





















 


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 Hedge 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
Hedge Agreement, whether such Hedge 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”); and


 


(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 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.


 


“Original
Agent” shall have the meaning provided in the preamble to this Agreement.


 


“Original
Bank Credit Agreement” shall have the meaning provided in the recitals to
this Agreement.


 


14





















 


“Original
Bank Lender Creditors” shall have the meaning provided in the recitals to
this Agreement.


 


“Original
Collateral Agent” shall have the meaning provided in the preamble to this
Agreement.


 


“Original
Lenders” shall have the meaning provided in the recitals to 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.


 


“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 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 “Requisite 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) and (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.


 


“Requisite
Creditors” shall have the meaning provided in Section 14(a) of this
Agreement.


 


“Restatement
Effective Date” shall mean the date and time on or prior to
January 24, 2005 (a) on which (i) this Agreement shall have been executed and
delivered by the Collateral Agent and each US Credit Party for whom a signature
line has been provided below and bearing the consent of the Required First Lien
Lenders, and (ii) the Second Restatement Effective Date (as defined in the US
Security Agreement) shall have occurred and (b) of which written notice of the
events described in clause (a) of this definition shall have been provided by
the Collateral Agent to RPP USA, the Senior Secured Notes Trustee and the
Additional Senior Secured Notes Trustee.


 


“RPP USA”
shall have the meaning provided in the recitals of this Agreement.


 


15





















 


“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 and
all Other 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 US Loans under the Bank Credit Agreement, all unreimbursed Letter of
Credit Obligations that may occur with respect to outstanding Letters of Credit
under the Bank Credit Agreement and all fees owing pursuant to the Credit
Agreement and (ii) in the case of Other Obligations, all amounts due under any Hedge
Agreements (other than indemnities, fees (including, without limitation,
attorneys’ fees) and similar obligations and liabilities).


 


“Senior
First Lien Secondary Obligations” shall mean all Senior First Lien
Obligations other than Senior First Lien Primary Obligations.


 


“US Agent”
shall have the meaning provided in the recitals to this Agreement.


 


“US
Borrowers” shall have the meaning provided in the recitals to this
Agreement.


 


“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.


 


16





















 


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 SECURITY AGREEMENT UNTIL ANOTHER
ADDRESS IS PROVIDED IN ACCORDANCE WITH THE 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 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.


 


17





















 


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.  The
Collateral Agent may execute any of its duties hereunder by or through agents
or employees and shall be entitled to advice of counsel concerning all matters
pertaining to its duties hereunder. Neither the Collateral Agent, nor any of
its respective officers, directors, employees, agents or counsel shall be liable
for any action lawfully taken or omitted to be taken by it or them hereunder or
in connection herewith, except for its or their own gross negligence or willful
misconduct as finally determined by a court of competent jurisdiction.


 


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 (as
defined below) 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 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 or (y) 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 9.2 of the Bank 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 Hedge Agreements entered into with
Other Creditors and (y) 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).


 


18





















 


(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 US 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 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 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 Commitments under the Bank Credit Agreement have been
terminated and all Hedge 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.


 


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


 


19





















 


shall supersede such inconsistent
provision to the extent necessary to give full effect to all provisions
contained in this Agreement and the Security Documents.


 


*     *
   *


 


20





















 


Acknowledged and Agreed to:


 


	
  RESOLUTION PERFORMANCE PRODUCTS INC.

  	
   

  
	
   

  	
   

  
	
   

  
	
  By:

  	
  /s/ Thomas Bausch

  	
   

  
	
  Title:     Treasurer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  RESOLUTION PERFORMANCE PRODUCTS LLC

  	
   

  
	
   

  	
   

  
	
   

  
	
  By:

  	
  /s/ Thomas Bausch

  	
   

  
	
  Title:     Treasurer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  RPP CAPITAL CORPORATION

  	
   

  
	
   

  	
   

  
	
   

  
	
  By:

  	
  /s/ Thomas Bausch

  	
   

  
	
  Title:     Treasurer

  	
   

  
				



 


[Signature Page to Intercreditor Agreement]


 





















 


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


 


	
   

  	
  GENERAL ELECTRIC CAPITAL

  CORPORATION, as Collateral Agent, and

  as US Agent on behalf of the Bank Lender

  Creditors and as Requisite Lender Creditors

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Kimberly A. Massa

  	
   

  
	
   

  	
  Title:   Duly Authorized Signatory

  



 


[Signature Page to Intercreditor Agreement]