EXHIBIT G
INTERCREDITOR AGREEMENT
dated as of September 30, 1998
Between
APPALOOSA MANAGEMENT L.P.,
as Collateral Agent
and
SANTA ▇▇▇▇▇▇▇ BANK & TRUST
TABLE OF CONTENTS
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Page
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1. Definitions.............................................................2
2. Priorities..............................................................6
3. Enforcement of Security.................................................7
4. Representations and Warranties..........................................8
5. Waiver of Marshalling and Similar Rights................................8
6. Security Notices, etc...................................................9
7. Reliance................................................................9
8. Termination.............................................................9
9. No Trust Relationship, etc..............................................9
10. Benefit of Agreement...................................................9
11. Amendment, Modification, Waiver of Documents..........................10
12. Notices, etc..........................................................10
13. GOVERNING LAW.........................................................10
14. Submission to Jurisdiction............................................11
15. Service of Process....................................................11
16. WAIVER OF JURY TRIAL..................................................11
17. Miscellaneous.........................................................11
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226848.09
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT (this "Agreement"), dated as of
September 30, 1998, between APPALOOSA MANAGEMENT L.P., as Collateral Agent
("Appaloosa") and SANTA ▇▇▇▇▇▇▇ BANK & TRUST (the "Trustee").
WHEREAS:
A. Pursuant to the Note Purchase Agreement, dated as of the date
hereof (the "Note Purchase Agreement"), between the purchasers listed
on Exhibit A thereto (the "Purchasers"), Appaloosa and Inamed
Corporation, a Florida corporation (the "Company"), the Purchasers are
purchasing 10.00% Senior Secured Notes (the "Notes") from the Company
in the aggregate principal amount of $8,000,000 and Warrants to
acquire up to 590,000 shares of Common Stock with an exercise price of
$6.50 per share;
B. In connection with the purchase and sale of the Notes,
simultaneously herewith the Company is commencing an exchange offer
for all of its issued and outstanding 11.00% secured convertible notes
due January, 1999 (the "Old Notes") pursuant to which the Company will
issue 11.00% Senior Subordinated Secured Notes due March 31, 1999 or,
at the option of the Company as provided therein, September 1, 2000
(the "Exchange Notes"), (ii) Warrants to acquire up to 3,671,616
shares of Common Stock with an exercise price of $5.50 per share and
(iii) Warrants to acquire up to 500,000 shares of Common Stock with an
exercise price of $7.50 per share; and
C. The Company and the Trustee have previously entered into an
Indenture, dated as of January 2, 1996 (as amended, the "Indenture")
with respect to the Old Notes; and
D. Pursuant to the Note Purchase Agreement, Appaloosa has been
appointed Collateral Agent to act on behalf of the Holders in
connection with administering the Collateral (as hereinafter defined);
and
E. Pursuant to the Indenture, the Trustee obtained liens and
security interests in the Collateral;
F. The Collateral Agent and the Trustee have agreed that the Old
Notes are subordinate in right of payment to the Notes and the liens
and security interests of the Trustee are subject to the liens and
security interests of Appaloosa; and
G. The parties hereto have agreed to allocate priorities and
share the proceeds of the Collateral on the terms and conditions
contained herein;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereby agree as follows:
1. Definitions. (a) As used herein, the following terms have the
following meanings:
"Accounts" shall have the meaning ascribed thereto in the
definition of Collateral.
"Affiliate" shall have the meanings ascribed to such term in Rule
12b-2 of the General Rules and Regulations under the Securities Exchange
Act of 1934, as amended. "Affiliate" shall also include partners of a
Person. Notwithstanding the foregoing, "Affiliate" shall not include the
limited partners of Appaloosa or any limited partners of a limited partner
of Appaloosa.
"Casualty Event" shall mean, with respect to any property of any
Person, any loss of or damage to, or any condemnation or other taking of,
such property for which such Person or any of its Subsidiaries receives
insurance proceeds, or proceeds of a condemnation award or other
compensation.
"Code" shall mean the Internal Revenue Code of 1986, as amended
and any regulations promulgated or proposed thereunder.
"Collateral" shall mean all of each Obligor's real and personal
property and interests in real and personal property including, without
limitation, (i) all of the shares of capital stock of the Issuers now owned
as set forth in Schedule 2(a) or hereafter acquired by such Obligor
together with in each case the certificates representing the same
(collectively, the "Pledged Stock"); (ii) all shares, securities, moneys or
property representing a dividend on, or a distribution or return of capital
in respect of, any of the Pledged Stock, resulting from a split-up,
revision, reclassification or other like change of any of the Pledged Stock
or otherwise received in exchange for any of the Pledged Stock and all
Equity Rights issued to the holders of, or otherwise in respect of, any of
the Pledged Stock; (iii) without affecting the obligations of any Obligor
under any provision prohibiting such action under the Note Purchase
Agreement, in the event of any consolidation or merger in which any Issuer
is not the surviving corporation, all shares of each class of the capital
stock of the successor corporation (unless such successor corporation is
the Company itself) formed by or resulting from such consolidation or
merger (collectively, and together with the property described in clauses
(i) and (ii) above, the "Stock Collateral"); (iv) the Indebtedness
described in Annex I with respect to such Obligor and issued by the
obligors named therein (the "Pledged Debt"); (v) all additional
Indebtedness for money borrowed or for the deferred purchase price of
property from time to time owed to such Obligor by any obligor of the
Pledged Debt, and all additional Indebtedness in excess of $25,000 for
money borrowed or for the deferred purchase price of property from time to
time owed to such Obligor by any other Person who, after the date hereof,
becomes, as a result of any occurrence, a Subsidiary of such Obligor or an
Affiliate of such Obligor (any such Indebtedness being "Additional Debt");
(vi) all notes or other instruments evidencing the Indebtedness referred to
in clauses (iv) and (v) above; (vii) all accounts and general intangibles
(each as defined in the Uniform Commercial Code) of such Obligor
constituting a right to the payment of money, whether or not earned by
performance, including all moneys due and to become due to such Obligor in
repayment of any loans or advances, in payment for goods (including
Inventory and Equipment) sold or leased or for services rendered, in
payment of tax refunds and in payment of any guarantee of any of the
foregoing (collectively, the "Accounts"); (viii) all instruments, chattel
paper or letters of credit (each as defined in the Uniform Commercial Code)
of such Obligor evidencing, representing, arising from or existing in
respect of, relating to, securing or otherwise supporting the payment of,
any of the Accounts; (ix) all inventory (as defined in the Uniform
Commercial Code) and all other goods (including Motor Vehicles) of such
Obligor that are held by such Obligor for sale, lease or furnishing under a
contract of service (including to its Subsidiaries or Affiliates), that are
so leased or furnished or that constitute raw materials, work in process or
material used or consumed in its business, including all spare parts and
related supplies, all goods obtained by such Obligor in exchange for any
such goods, all products made or processed from any such goods and all
substances, if any, commingled with or added to any such goods
(collectively, the "Inventory"); (x) all equipment (as defined in the
Uniform Commercial Code) and all other goods (including Motor Vehicles) of
such Obligor that are used or bought for use primarily in its business,
including all spare parts and related supplies, all goods obtained by such
Obligor in exchange for any such goods, all substances, if any, commingled
with or added to such goods and all upgrades and other improvements to such
goods, in each case to the extent not constituting Inventory (collectively,
the "Equipment"); (xi) all documents of title (as defined in the Uniform
Commercial Code) or other receipts of such Obligor covering, evidencing or
representing Inventory or Equipment (collectively, the "Documents"); (xii)
all contracts and other agreements of such Obligor relating to the sale or
other disposition of all or any part of the Inventory, Equipment or
Documents and all rights, warranties, claims and benefits of such Obligor
against any Person arising out of, relating to or in connection with all or
any part of the Inventory, Equipment or Documents of such Obligor,
including any such rights, warranties, claims or benefits against any
Person storing or transporting any such Inventory or Equipment or issuing
any such Documents; (xiii) all other accounts or general intangibles of
such Obligor not constituting Accounts, including, to the extent related to
all or any part of the other Collateral, all books, correspondence, credit
files, records, invoices, tapes, cards, computer runs and other papers and
documents in the possession or under the control of such Obligor or any
computer bureau or service company from time to time acting for such
Obligor; (xiv) the balances from time to time in the Collateral Accounts;
(xv) all other tangible and intangible property of such Obligor, including
all Intellectual Property; and (xvi) all proceeds and products in whatever
form of all or any part of the other Collateral, including all proceeds of
insurance and all condemnation awards and all other compensation for any
Casualty Event with respect to all or any part of the other Collateral
(together with all rights to recover and proceed with respect to the same),
and all accessories to, substitutions for and replacements of all or any
part of the other Collateral.
"Collateral Accounts" shall refer to the collateral accounts
maintained by Appaloosa pursuant to the Security Documents.
"Copyrights" shall mean, collectively, (a) all copyrights,
copyright registrations and applications for copyright registrations, (b)
all renewals and extensions of all copyrights, copyright registrations and
applications for copyright registration and (c) all rights, now existing or
hereafter coming into existence, (i) to all income, royalties, damages and
other payments (including in respect of all past, present or future
infringements) now or hereafter due or payable under or with respect to any
of the foregoing, (ii) to ▇▇▇ for all past, present and future
infringements with respect to any of the foregoing and (iii) otherwise
accruing under or pertaining to any of the foregoing throughout the world.
"Documents" shall have the meaning ascribed thereto in the
definition of Collateral.
"Equipment" shall have the meaning ascribed thereto in the
definition of Collateral.
"Equity Rights" shall mean, with respect to any Person, any
outstanding subscriptions, options, warrants, commitments, preemptive
rights or agreements of any kind (including any stockholders' or voting
trust agreements) for the issuance, sale, registration or voting of, or
outstanding securities convertible into, any additional shares of capital
stock of any class, or partnership or other ownership interests of any type
in, such Person.
"Exchange Notes" shall have the meaning ascribed thereto in the
Recitals.
"Intellectual Property" means (a) all inventions (whether
patentable or unpatentable and whether or not reduced to practice), all
improvements thereon, and all Patents, patent applications and patent
disclosures, together with all reissuances, continuations,
continuations-in-part, revisions, extensions and reexaminations thereof,
(b) all Trademarks, service marks, trade dress, logos, trade names and
corporate names, together with all translations, adaptations, derivations
and combinations thereof and including all goodwill associated therewith,
and all applications, registrations and renewals in connection therewith,
(c) all copyrightable works, all Copyrights and all applications,
registrations and renewals in connection therewith, (d) all mask works and
all applications, registrations and renewals in connection therewith, (e)
all trade secrets and confidential business information (including ideas,
research and development, know-how, formulas, compositions, manufacturing
and production processes and techniques, technical data, designs, drawings,
specifications, customer and supplier lists, pricing and cost information
and business and marketing plans and proposals), (f) all computer software
(including data and related documentation), (g) all other proprietary
rights, (h) all copies and tangible embodiments of the foregoing (in
whatever form or medium) and (i) all licenses or agreements in connection
with the foregoing.
"Inventory" shall have the meaning ascribed thereto the
definition of Collateral.
"Issuers" shall mean, collectively, each Subsidiary, directly or
indirectly, of the Company that is the issuer (as defined in the Uniform
Commercial Code) of any shares of capital stock now owned or hereafter
acquired by any Obligor.
"Notes" shall have the meaning ascribed thereto in the Recitals.
"Obligor" or "Obligors" shall mean each of the Company and each
the Company's Subsidiaries that, at any time, execute the Guaranty and
Security Agreement.
"Patents" shall mean, collectively, (a) all patents and patent
applications, (b) all reissues, divisions, continuations, renewals,
extensions and continuations-in-part of all patents or patent applications
and (c) all rights, now existing or hereafter coming into existence, (i) to
all income, royalties, damages, and other payments (including in respect of
all past, present and future infringements) now or hereafter due or payable
under or with respect to any of the foregoing, (ii) to ▇▇▇ for all past,
present and future infringements with respect to any of the foregoing and
(iii) otherwise accruing under or pertaining to any of the foregoing
throughout the world, including all inventions and improvements described
or discussed in all such patents and patent applications.
"Person" shall mean any individual, firm, corporation, limited
liability company, partnership, company or other entity, and shall include
any successor (by merger or otherwise) of such entity.
"Pledged Debt" shall have the meaning ascribed thereto in the
definition of Collateral.
"Pledged Stock" shall have the meaning ascribed thereto in the
definition of Collateral.
"Security Documents" shall mean (i) the Guarantee and Security
Agreement, dated as of the date hereof, among Appaloosa and certain of the
Company's domestic Subsidiaries, providing for a first priority security
interest in such Subsidiaries' Collateral and guarantees from such
Subsidiaries, (ii) the Guarantee Agreement, dated as of the date hereof,
made by certain of the Company's foreign Subsidiaries in favor of Appaloosa
and (iii) the Security Agreement, dated as of the date hereof, between
Appaloosa and the Company, providing for a first priority security interest
in the Collateral.
"Indenture" has the meaning ascribed thereto in the Recitals.
"Subsidiary" of any Person shall mean any corporation or other
entity of which a majority of the voting power or the voting equity
securities or equity interest is owned, directly or indirectly, by such
Person.
"Trademarks" shall mean, collectively, (a) all trade names,
trademarks and service marks, logos, trademark and service ▇▇▇▇
registrations and applications for trademark and service ▇▇▇▇
registrations, (b) all renewals and extensions of any of the foregoing and
(c) all rights, now existing or hereafter coming into existence, (i) to all
income, royalties, damages and other payments (including in respect of all
past, present and future infringements) now or hereafter due or payable
under or with respect to any of the foregoing, (ii) to ▇▇▇ for all past,
present and future infringements with respect to any of the foregoing and
(iii) otherwise accruing under or pertaining to any of the foregoing
throughout the world, together, in each case, with the product lines and
goodwill of the business connected with the use of, or otherwise symbolized
by, each such trade name, trademark and service ▇▇▇▇.
(b) Terms defined in Article 9 of the Uniform Commercial Code
currently in effect in the State of New York and not otherwise defined
herein are used herein as therein defined.
2. Priorities. (a) Appaloosa and the Trustee hereby acknowledge
and agree that the liens and security interests of Appaloosa (for the
benefit of the holders of the Notes) in each Obligor's right, title and
interest in and to the Collateral, whether now owned or hereafter acquired
by such Obligor and whether now existing or hereafter coming into existence
shall constitute first priority liens and security interests in such
Collateral, prior in right to the liens and security interests of the
Trustee (for the benefit of the holders of the Old Notes) in the
Collateral. Appaloosa and the Trustee further acknowledge and agree that
the payment of the principal of (and premium, if any) and interest on the
Old Notes are subordinated and subject in right of payment to the prior
payment in full of the principal of (and premium, if any) and interest on
the Notes. The Trustee is hereby delivering to Appaloosa all Collateral in
its possession.
(b) The priorities set forth in this Agreement are applicable
irrespective of the order of creation, attachment or perfection of any of
such liens or security interests or any priority that might otherwise be
available to any Person under applicable law and notwithstanding any
representation or warranty of the Company to the contrary in the Note
Purchase Agreement or the Indenture.
(c) The Trustee agrees not to contest, or to bring (or
voluntarily join in) any action or proceeding for the purpose of
contesting, the validity, perfection or priority (as herein provided) of,
or seeking to avoid, Appaloosa's liens and security interests in the
Collateral, provided that nothing herein shall be deemed or construed to
prevent the Trustee from commencing an action or proceeding against each
other to assert any right or claim it may have arising under or in
connection with this Agreement.
(d) The Trustee and Appaloosa agree that they shall, at their own
expense and upon the reasonable request of the other party, duly execute
and deliver, or cause to be duly executed and delivered, to each other such
further instruments, agreements and documents (including, without
limitation, financing statements under the Code, security agreements in
respect of Intellectual Property, stock powers executed in blank and other
items necessary or desirable in connection with the perfection of liens in
the Collateral) and do and cause to be done such further acts as may be
necessary or proper in the reasonable opinion of either party to carry out
more effectually the provisions and purposes of this Agreement. The Trustee
hereby agrees to amend all financing statements presently filed by it in
any location (including, without limitation, the U.S. Patent and Trademark
Office and the U.S. Copyright Office) with respect to the Collateral to
reflect Appaloosa's first priority security interest (for the benefit of
the holders of the Notes) on the Collateral.
3. Enforcement of Security. (a) Appaloosa and the Trustee may
from time to time in their sole discretion and in accordance with the terms
of their respective loan documents take or authorize the taking of such
action with regard to the protection, exercise and enforcement of their
rights in and to the Collateral as they may determine to be necessary or
appropriate; provided, however, that the Trustee will not (i) take any
action to enforce, collect on or exercise any of its rights in respect of
its liens and security interests in the Collateral or (ii) interfere with
any exercise by or on behalf of Appaloosa of its rights in respect of its
liens and security interests in the Collateral, in each case unless and
until Appaloosa has given written notice to the Trustee that the Company
has satisfied, in full, all amounts (whether representing principal,
interest, fees, expenses or otherwise) owing to the holders of the Notes in
respect of the Notes and otherwise pursuant to the Note Purchase Agreement
(and Appaloosa hereby agrees to promptly give such notification following
satisfaction of all such amounts).
(b) Except as otherwise provided in Section 3(a) of this
Agreement, Appaloosa may from time to time, at its discretion and in
accordance with its applicable loan documentation, enforce, collect on or
exercise any of its respective rights in respect of such liens and security
interests. Each right, power and remedy of any of Appaloosa or the Trustee
provided for in this Agreement, the Note Purchase Agreement, the Indenture
or any other loan document relating to any of the foregoing, whether now
existing or hereafter available at law or in equity or by statute or
otherwise, shall be cumulative and concurrent (except to the extent
otherwise provided in any such document) and shall be in addition to every
other such right, power or remedy. Except to the extent otherwise provided
in this Agreement, the Note Purchase Agreement, the Indenture or any other
loan document relating to any thereof, the exercise or beginning of the
exercise by Appaloosa or the Trustee of any one or more of such rights,
powers or remedies shall not preclude the simultaneous or later exercise of
all other such rights, powers or remedies, and no course of dealing or
failure or delay on the part of any party hereto in exercising any such
right, power or remedy shall operate as a waiver thereof or otherwise
prejudice its rights, powers or remedies.
(c) Each of Appaloosa and the Trustee agrees to hold any
Collateral received by it, in or against which a security interest or lien
may be perfected by possession, on behalf of the other as well as itself,
and upon satisfaction, in full, of its respective obligations, to turn over
to the other all such Collateral, provided that this subparagraph (c) is
intended solely to assure continuous perfection of the liens and security
interests granted under the Note Purchase Agreement and the Indenture,
respectively, and nothing in this paragraph (c) shall be deemed or
construed as altering the priorities or obligations set forth elsewhere in
this Agreement.
(d) Upon the written request of Appaloosa, the Trustee agrees to
release any Collateral specified in such request provided that Appaloosa
has previously released such Collateral.
4. Representations and Warranties. Each of Appaloosa and the
Trustee represents and warrants to each other as follows:
(a) This Agreement has been duly executed and delivered by its
duly authorized officer and constitutes its legal, valid and binding
obligation enforceable against it in accordance with the terms hereof.
(b) The execution, delivery and performance by it of this
Agreement have been duly authorized by all necessary corporate action
and do not and will not (i) violate any provision of any law, rule or
regulation having applicability to it or of its charter or articles of
association or by-laws, (ii) result in a breach of or constitute a
default under any indenture or loan or credit agreement or any other
material agreement, lease or instrument to which it is a party, or
(iii) require the consent or approval of any governmental authority or
arbitrator.
5. Waiver of Marshalling and Similar Rights. Each of the parties
hereto, to the fullest extent permitted by applicable law, waives any
requirement regarding, and agrees not to demand, request, plead or
otherwise claim the benefit of, any marshalling, appraisement, valuation or
other similar right that may otherwise be available under applicable law.
6. Security Notices, etc. Appaloosa and the Trustee each agree to
give the other written notice of their intention to exercise any remedies
in respect of any Event of Default (as defined in the Note Purchase
Agreement or the Indenture, as applicable) and copies of any written notice
of default sent to the Company and of the time and place of any public sale
or the time after which any private sale or other intended disposition is
to be made by either of them of the Collateral, and agree to use reasonable
efforts to make available to the other (but shall have no liability to the
other for failure to do so) information received by them from the Company
which the recipient considers to be of common interest with respect to the
payment of the Notes or the Collateral, provided that the Trustee's rights
to exercise any remedy is subject to Section 3(a) hereof. This Agreement is
intended, in part, to constitute a request for notice and a written notice
of a claim by each party hereto to the other of an interest in the
Collateral in accordance with the provisions of Sections 9-504 and 9-505 of
the Uniform Commercial Code.
7. Reliance. In acting in respect of this Agreement, each of
Appaloosa and the Trustee will be entitled (a) to rely on any communication
believed by it to be genuine and to have been made, sent or signed by the
person by whom it purports to have been made, sent or signed, or (b) to
rely on the advice or services or opinions and statements of any
professional advisor whose advice or services to it seem necessary,
expedient or desirable and are given or made in connection with this
Agreement, including, without limitation, the opinion of counsel (including
counsel for the Company).
8. Termination. Upon receipt by the Trustee of the notices
referred to in Section 3, this Agreement shall terminate; provided,
however, that if after termination any payment received by any party hereto
is rescinded or must otherwise be returned or paid over to or for the
account of any Obligor by such party for any reason, this Agreement shall
forthwith be reinstated until the giving of a further notice by such party
of the type referred to in Section 3.
9. No Trust Relationship, etc. This Agreement is intended to
create a relationship among independent contractors, and nothing in this
Agreement shall be deemed to create a fiduciary, agency or trust
relationship between or among any of the parties hereto.
10. Benefit of Agreement. This Agreement is solely for the
benefit of Appaloosa and the Trustee, and no other person or entity shall
be entitled to rely on, or is, intended to receive any benefit under, this
Agreement.
11. Amendment, Modification, Waiver of Documents. No provision of
the Agreement may be amended, modified or waived except by a writing signed
each of Appaloosa and the Trustee, provided that nothing in this Agreement
shall affect the right of either Appaloosa or the Trustee to amend, modify
or waive any provision of any other loan document related to this
transaction in accordance with the terms thereof. Each of Appaloosa and the
Trustee agrees to give the other written notice of any material amendment,
modification or waiver to the other loan documents related to this
transaction.
12. Notices, etc. All notices, consents, requests, instructions,
approvals, financial statements, proxy statements, reports and other
communications provided for herein shall be deemed given, if in writing and
delivered personally, by telecopy or sent by registered mail, postage
prepaid, if to:
Appaloosa, to:
Appaloosa Investment Partnership I, L.P.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
The Trustee, to:
Santa ▇▇▇▇▇▇▇ Bank & Trust
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE
GOVERNED BY, THE LAW OF THE STATE OF NEW YORK EXCLUDING CHOICE-OF-LAW
PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF
THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
14. Submission to Jurisdiction. If any action, proceeding or
litigation shall be brought by either party hereto in order to enforce any
right or remedy under this Agreement or any of the Notes, both parties
hereby consent and will submit to the jurisdiction of any state or federal
court of competent jurisdiction sitting within the area comprising the
Southern District of New York on the date of this Agreement. Both parties
hereby irrevocably waive any objection, including, but not limited to, any
objection to the laying of venue or based on the grounds of forum non
conveniens, which it may now or hereafter have to the bringing of any such
action, proceeding or litigation in such jurisdiction.
15. Service of Process. Nothing herein shall affect the right of
any either party to serve process in any other manner permitted by law or
to commence legal proceedings or otherwise proceed against each other in
any other jurisdiction.
16. WAIVER OF JURY TRIAL. BOTH PARTIES HEREBY WAIVE ANY RIGHT
EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING OR
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION
WITH, THIS AGREEMENT.
17. Miscellaneous. This Agreement, until its termination, shall
be binding upon and inure to the benefit of and be enforceable by the
respective successors and assigns of the parties hereto. The headings in
this Agreement are for the purpose of reference only and shall not limit or
define the meaning hereof. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which shall
constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
APPALOOSA MANAGEMENT L.P.
as Collateral Agent
By: Appaloosa Partners Inc.
its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
SANTA ▇▇▇▇▇▇▇ BANK & TRUST,
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Ass't V.P. & Associate
General Counsel
Acknowledged as of the
date first above written:
INAMED CORPORATION
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive V.P.