Exhibit 4.9A
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT, dated as of April 16, 2004 (as amended,
restated, supplemented or otherwise modified from time to time, this
"AGREEMENT"), is made by and among U.S. BANK NATIONAL ASSOCIATION, solely in its
capacity as trustee under the Indenture (as defined below) (in such capacity,
the "TRUSTEE"), and WELLS FARGO FOOTHILL, INC., a California corporation
("WFF"), solely in its capacities as FF&E Agent, DJL Lender, OED Lender, and New
Revolver Agent (as such terms are defined below).
RECITALS
A. Diamond Jo, LLC, a Delaware limited liability company ("DJL"), The
Old Evangeline Downs Capital Corp., a Delaware corporation ("OED CORP"; OED Corp
and DJL, together with any other Person that now or hereafter becomes an
"issuer" or "co-issuer" under the Indenture referred to below, whether by
joinder agreement or otherwise, collectively, the "ISSUERS"), the guarantors
from time to time party thereto (the "GUARANTORS"), and the Trustee have entered
into an Indenture, dated as of the date hereof (as amended, restated,
supplemented or otherwise modified from time to time, the "INDENTURE"), pursuant
to which indebtedness was incurred by the Issuers, the repayment of which is
guaranteed by the Guarantors and secured by security interests in and liens on
certain now owned and hereafter acquired assets and properties described in the
Indenture Security Documents (as defined below) (the "COLLATERAL").
B. DJL, as borrower, and WFF, as lender (in such capacity, the "DJL
LENDER"), have entered into a Loan and Security Agreement, dated as of February
23, 2001 (as amended, restated, supplemented or otherwise modified from time to
time, the "DJL CREDIT AGREEMENT"), pursuant to which the DJL Lender agreed, upon
the terms and conditions stated therein, to make loans and advances to, or to
issue letters of credit (or guaranties in respect thereof) for the account of,
DJL, the repayment of which is secured by security interests in and liens on
certain Collateral pursuant to the DJL Credit Agreement and the collateral
security documents, instruments and guaranties executed and delivered in
connection therewith by one or more of the Issuers and the Guarantors, together
with such other agreements, instruments and certificates entered into in
connection with the DJL Credit Agreement (as such may be amended, restated,
supplemented or otherwise modified from time to time, together with the DJL
Credit Agreement, the "DJL LOAN DOCUMENTS").
C. The Old Evangeline Downs, L.L.C., a Louisiana limited liability
company ("OED"), and OED Corp, as borrowers (the "OED BORROWERS"), and WFF, as
lender (in such capacity, the "OED LENDER"), have entered into a Loan and
Security Agreement, dated as of June 24, 2003 (as amended, restated,
supplemented or otherwise modified from time to time, the "OED CREDIT
AGREEMENT," and together with the DJL Credit Agreement, the "EXISTING
Revolvers"), pursuant to which the OED Lender agreed, upon the terms and
conditions stated therein, to make loans and advances to, or to issue letters of
credit (or guaranties in respect thereof) for the account of, the OED Borrowers,
the repayment of which is secured by security interests in and liens on certain
Collateral pursuant to the OED Credit Agreement and the collateral security
documents, instruments and guaranties executed and delivered in connection
therewith by one or more of the Issuers and the Guarantors, together with such
other agreements, instruments and certificates entered into in connection with
the OED Credit Agreement (as such may be amended, restated, supplemented or
otherwise modified from time to time, together with the OED Credit Agreement,
the "OED LOAN DOCUMENTS"; the OED Loan Documents, together with the DJL Loan
Documents, the "EXISTING REVOLVER DOCUMENTS").
D. OED and OED Corp, as borrowers (together with each of OED's
subsidiaries from time to time party thereto, the "FF&E BORROWERS"), the lenders
from time to time party thereto (the "FF&E LENDERS"), and WFF, as administrative
agent for the FF&E Lenders (in such capacity, the "FF&E AGENT"), have entered
into a Loan and Security Agreement, dated as of September 22, 2003 (as amended,
restated, supplemented or otherwise modified from time to time, the "FF&E CREDIT
AGREEMENT"), pursuant to which the FF&E Lenders agreed, upon the terms and
conditions stated therein, to make term loans to the FF&E Borrowers, the
repayment of which is or may be secured by security interests in and liens on
certain Collateral pursuant to the FF&E Credit Agreement and the collateral
security documents and instruments executed and delivered in connection
therewith by one or more of the Issuers and the Guarantors, together with such
other agreements, instruments and certificates entered into in connection with
the FF&E Credit Agreement (as such may be amended, restated, supplemented or
otherwise modified from time to time, together with the FF&E Credit Agreement,
the "FF&E LOAN DOCUMENTS").
E. In connection with the offering of the notes under the Indenture,
each of DJL and the OED Borrowers have agreed to use their good faith
commercially reasonable efforts to obtain required approvals from the relevant
gaming authorities and to repay in full and refinance (the "REFINANCING") the
Existing Revolvers, pursuant to a proposed new revolving loan and security
agreement (as amended, restated, supplemented, refinanced or otherwise modified
from time to time, the "NEW REVOLVER AGREEMENT") among DJL, the OED Borrowers,
certain lenders from time to time party thereto (the "NEW REVOLVER LENDERS"),
and WFF, as administrative agent for the New Revolver Lenders (in such capacity,
the "NEW REVOLVER AGENT"). As with the Existing Revolvers, it is contemplated
that the New Revolver Agreement will be secured by security interests in and
liens on certain Collateral pursuant to the agreements, collateral security
documents, instruments and guaranties executed and delivered in connection
therewith by one or more of the Issuers and the Guarantors, together with the
other agreements, instruments and certificates entered into in connection with
the New Revolver Agreement (as such may be amended, restated, supplemented or
otherwise modified from time to time, together with the New Revolver Agreement,
the "NEW REVOLVER DOCUMENTS").
F. One of the conditions of the Senior Lien Documents is that the
priority of the security interests and liens on the Collateral securing the
obligations under such documents be senior to the security interests in and
liens on the Collateral in favor of the Trustee in the manner and to the extent
provided for in this Agreement.
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G. The Trustee and the Senior Lien Creditor Representatives (on behalf
of the Senior Lien Creditors) desire to enter into this Agreement concerning
their respective rights with respect to the priority of their respective
security interests in and liens on the Collateral.
H. The terms of the Indenture permit the Issuers and the Guarantors to
(1) remain obligated under the FF&E Loan Documents and the Existing Revolver
Documents to which they are parties, and (2) enter into the New Revolver
Documents and, in connection therewith, authorize and direct the Trustee to
enter into an intercreditor agreement substantially in the form of this
Agreement.
NOW, THEREFORE, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. In addition to the capitalized terms defined
above in the preamble and the recitals hereto, as used in this Agreement, the
following terms shall have the meanings set forth below:
"CREDIT FACILITY INDEBTEDNESS" shall mean all present and future
obligations (including principal, interest, fees and reimbursement obligations
under letters of credit), contingent or otherwise, of the Issuers and the
Guarantors to the Senior Lien Creditors arising under or pursuant to the Senior
Lien Documents, including, in each case, interest, fees, and expenses accruing
after the initiation of any Insolvency Proceeding (irrespective of whether
allowed as a claim in such proceeding), and including the secured claims of any
Senior Lien Creditor in respect of the Collateral in any Insolvency Proceeding.
"ENFORCEMENT ACTION" shall mean the exercise of any right or remedy
with respect to any Collateral (including any right of set-off) or the taking of
any Foreclosure Action or other action to enforce, collect or realize upon any
Collateral, or the commencement of any action, whether judicial or otherwise,
for the enforcement of such Party's rights and remedies as a secured creditor
with respect to the Collateral, or the commencement of any receivership
proceedings or any other sale of, collection on, or disposition of, any
Collateral, including the exercise of any right, remedy or action to: (a)
exercise any collection rights in respect of any Collateral or notify any
account debtors to make payment directly to such Party or its agents or other
Persons acting on its behalf or retain any proceeds of accounts and other
obligations receivable paid by any account debtor; (b) take or accept any
transfer of title in lieu of foreclosure upon any Collateral; (c) enforce any
claim to the proceeds of insurance upon any Collateral; (d) deliver any notice,
claim or demand relating to the Collateral to any Person (including any
securities intermediary, depositary bank or landlord) in the possession or
control of any Collateral or acting as bailee, custodian or agent for any Party
in respect of any Collateral; or (e) otherwise enforce any remedy available to
such Party upon default for the enforcement of any Lien upon the Collateral.
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"ENFORCEMENT EVENT" shall mean the occurrence and continuance of an
"Event of Default" as defined under Section 6 of the Indenture.
"ENFORCEMENT EVENT NOTICE" shall have the meaning ascribed thereto in
Section 3.2.
"ENTITLED PARTY" shall have the meaning ascribed thereto in Section
4.1(a).
"EVENT OF DEFAULT" shall mean, with respect to any Senior Lien
Document, the occurrence of an "Event of Default" under, and as defined in, such
Senior Lien Document.
"FF&E SECURED LIABILITIES" shall mean Secured Liabilities evidenced by
the FF&E Loan Documents.
"FINANCING DOCUMENTS" shall mean the Indenture Documents and the Senior
Lien Documents.
"FORECLOSURE ACTION" shall mean any action to foreclose upon or enforce
a Lien against any of the Collateral, including (a) commencing judicial or
non-judicial foreclosure proceedings, (b) exercising any rights afforded to
secured creditors in a case under the Bankruptcy Law with respect to the
Collateral, or (c) taking any action under the Bankruptcy Law that directly
relates to or directly affects any such Collateral, other than any such action
that relates to or affects all or substantially all of the property of the
bankruptcy estate.
"FULLY PAID" shall mean (a) with respect to the Indenture Documents,
the payment in cash or cash equivalents in full of all obligations (other than
contingent, unliquidated indemnity obligations that survive payment in full)
under the Indenture Documents, and (b) with respect to any Senior Lien Document,
(i) the payment in cash or cash equivalents in full of all obligations (other
than contingent, unliquidated indemnity obligations that survive payment in
full) under such Senior Lien Document (it being agreed and understood that with
respect to any Senior Lien Document, the principal amount of such obligations
shall at no time exceed the applicable Maximum Credit Facility Amount), plus
related interest, fees, costs, expenses and reimbursement and indemnification
obligations), and (ii) the termination of all commitments or other obligations
of the Senior Lien Creditors under such Senior Lien Document to extend credit
thereunder to any Issuer, any Guarantor, or any other subsidiary of an Issuer.
"INDENTURE DOCUMENTS" shall mean the Indenture, the Notes, the
Indenture Security Documents and the Registration Rights Agreement, and such
other agreements, instruments and certificates executed and delivered (or
issued) by the Issuers or the Guarantors pursuant to the Indenture, as any or
all of the same may be amended, restated, supplemented or otherwise modified
from time to time.
"INDENTURE SECURITY DOCUMENTS" has the meaning assigned to the term
"Security Documents" in the Indenture.
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"INSOLVENCY PROCEEDING" shall mean any proceeding for the purposes of
dissolution, winding up, liquidation, arrangement or reorganization of the
Issuers, any Guarantor, or any other subsidiary of the Issuers, or their
respective successors or assigns, whether in bankruptcy, insolvency,
arrangement, reorganization or receivership proceedings, or upon an assignment
for the benefit of creditors or any other marshaling of the assets and
liabilities of the Issuers, any Guarantor, or any other subsidiary of the
Issuers, or their respective successors or assigns.
"LIEN PRIORITY" shall mean, with respect to any Lien in and to the
Collateral, the order of priority of such Lien as specified in Sections 2.1 and
2.2.
"MAXIMUM CREDIT FACILITY AMOUNT" shall mean, with respect to Credit
Facility Indebtedness owed pursuant to (a) the FF&E Loan Documents,
$[16,000,000] (less any permanent principal reductions thereto), and (b) the
Senior Lien Documents (other than the FF&E Loan Documents), $35,000,000, which
amount may be increased or decreased as provided in Section 4.7(b)(i) of the
Indenture (as in effect on the date hereof), in each case in aggregate principal
amount of such Credit Facility Indebtedness, plus all related interest, fees
expenses and indemnification obligations or such greater amount or amounts as
the Trustee may consent to in its discretion.
"NEW REVOLVER SECURED LIABILITIES" shall mean Secured Liabilities
evidenced by the New Revolver Loan Documents.
"PARTY" shall mean each of (a) the Trustee, (b) the FF&E Agent, (c)
prior to the Refinancing, the DJL Lender, (d) prior to the Refinancing, the OED
Lender, and (e) upon and after the Refinancing, the New Revolver Agent.
"SECURED LIABILITIES" shall mean the Subordinated Lien Indebtedness and
the Credit Facility Indebtedness (up to the Maximum Credit Facility Amount).
"SECURITY DOCUMENTS" shall mean any and all Indenture Security
Documents and any and all Senior Lien Documents, in each case executed,
delivered or authorized by an Issuer or any Guarantor or any subsidiary of an
Issuer pursuant to which such Person grants to the Trustee (as security for the
Subordinated Lien Indebtedness) or any Senior Lien Creditor (as security for the
applicable Credit Facility Indebtedness) a security interest in any Collateral.
"SENIOR LIEN DOCUMENTS" shall mean, collectively and individually, (a)
the FF&E Loan Documents, and (b) (i) prior to the Refinancing, the Existing
Revolver Documents, and (ii) upon and after the Refinancing, the New Revolver
Documents.
"SENIOR LIEN CREDITORS" shall mean, collectively and individually, (a)
the FF&E Agent and the FF&E Lenders, and (b) (i) prior to the Refinancing, the
DJL Lender and the OED Lender, and (ii) upon and after the Refinancing, the New
Revolver Agent and the New Revolver Lenders.
"SENIOR LIEN CREDITOR REPRESENTATIVES" shall mean, collectively and
individually, (a) the FF&E Agent, on behalf of the FF&E Lenders, and (b) (i)
prior to the
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Refinancing, the DJL Lender and the OED Lender, and (ii) upon and after the
Refinancing, the New Revolver Agent on behalf of the New Revolver Lenders.
"SUBORDINATED LIEN INDEBTEDNESS" shall mean all present and future
obligations, contingent or otherwise, of the Issuers and the Guarantors to the
Trustee or Holders arising under or pursuant to the Indenture Documents,
including, in each case, interest, fees and expenses accruing after the
initiation of any Insolvency Proceeding (irrespective of whether allowed as a
claim in such proceeding), and including the secured claims of the Trustee or
the Holders in respect of the Collateral in any Insolvency Proceeding.
Section 1.2 Indenture Definitions. All other capitalized terms that are
used but not defined herein shall have the respective meaning indicated in the
Indenture, as in effect on the date hereof.
Section 1.3 Miscellaneous. All definitions herein (whether set forth
herein directly or by reference to definitions in other documents) shall be
equally applicable to both the singular and the plural forms of the terms
defined. The words "hereof," "herein" or "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement. Article and section references are
to articles and sections of this Agreement unless otherwise specified. The term
"including" shall mean "including without limitation."
ARTICLE II
LIEN PRIORITY
Section 2.1 Agreement to Subordinate Liens. The Trustee hereby agrees
that all Liens of the Trustee for the benefit of itself and the Holders in and
to the Collateral are and shall be junior to and subordinate in priority to the
Liens of any or all of the Senior Lien Creditors in and to the Collateral
securing Credit Facility Indebtedness (up to the Maximum Credit Facility
Amount); provided that, the rights of a Party under this Agreement shall be void
and of no further force and effect if, and only to the extent, that the Liens of
such Party in and to the Collateral are avoided, disallowed, set aside or
otherwise invalidated in any action or proceeding by a court, tribunal or
administrative agency of competent jurisdiction and such avoidance,
disallowance, set aside or other invalidation is permanent and is not later
reversed. The subordination of the Liens of the Trustee for the benefit of
itself and the Holders in and to the Collateral in favor of the Senior Lien
Creditors provided for herein shall not be deemed to (a) subordinate the Liens
of the Trustee for the benefit of itself and the Holders to the Liens of any
other Person, or (b) subordinate the Subordinated Lien Indebtedness to any other
Indebtedness of the Issuers or any of the Guarantors, including the Credit
Facility Indebtedness.
Section 2.2 Non-Contest; Excluded Assets. Each Party agrees that it
will not attack or contest the validity, perfection, priority or enforceability
of the Liens of the other Party or finance or urge any other Person to do so;
provided that, any Party may enforce its rights and privileges hereunder without
being deemed to have violated this
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provision. Any provision contained in this Agreement to the contrary
notwithstanding, the terms and conditions of this Agreement shall not apply, as
between any Senior Lien Creditor Representative on the one hand, and the Trustee
on the other hand, to any property or assets (including property or assets that
do not constitute Collateral) as to which such Senior Lien Creditor
Representative has a Lien and as to which the Trustee does not have a Lien, or
as to which the Trustee has a Lien and such Senior Lien Creditor Representative
does not have a Lien.
Section 2.3 Exercise of Rights.
(a) The Trustee may exercise, and nothing herein shall constitute
a waiver of, any right it may have at law or equity to receive notice of, or to
commence or join with any creditor in commencing any Insolvency Proceeding;
provided that, the exercise of any such right by the Trustee shall be (i)
subject to the Lien Priority and application of proceeds of Collateral as
provided in Section 3.4 and (ii) subject to the provisions of Sections 3.1 and
3.2.
(b) Notwithstanding any other provision hereof, the Trustee may
make such demands or file such claims as may be necessary to prevent the waiver
or bar of such claims under applicable statutes of limitations or other
statutes, court orders or rules of procedure.
Section 2.4 Priority of Liens. (a) Irrespective of any priority
otherwise available to the Trustee by law or agreement or irrespective of the
order of recording of mortgages, financing statements, security agreements or
other instruments, and irrespective of the descriptions of Collateral contained
in the Financing Documents, including any financing statements, each of the
Trustee and the Senior Lien Creditor Representatives hereby agree among
themselves that their respective Liens in the Collateral shall be governed by
the Lien Priority, which shall be controlling in the event of any conflict
between this Agreement and any of the Financing Documents.
(b) Each Party agrees that this Agreement and the Lien Priority
shall remain in full force and effect without regard to, and shall not be
released, suspended, discharged, terminated, modified or otherwise affected by
any circumstance or occurrence whatsoever (other than in accordance with the
terms hereof), including any of the following (whether or not such Party
consents thereto or has notice thereof): (i) any change in or waiver of the
time, place or manner of payment, or any other term, of any of the Secured
Liabilities or Financing Documents, any waiver of or any renewal, extension,
increase, refinancing, amendment or modification of or addition, consent or
supplement to or deletion from, or any other action or inaction under or in
respect of, any of the Secured Liabilities or Financing Documents or any other
document, instrument or agreement referred to therein or any assignment or
transfer of any of the Secured Liabilities or Financing Documents; (ii) any
furnishing of any additional collateral for any of the Secured Liabilities or
any sale, exchange, release or surrender of, or realization on, any collateral
for any of the Secured Liabilities; (iii) any settlement, release or compromise
of any of the Secured Liabilities or Financing Documents, any collateral
therefor, or any liability of any other party (including any other Party) with
respect to any
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of the Secured Liabilities or Financing Documents, or any subordination of
payment of any Secured Liabilities to the payment of any other indebtedness,
liability or obligation of any of the Issuers, Guarantors or any subsidiary of
any Issuer; (iv) any bankruptcy, insolvency, reorganization, composition,
adjustment, merger, consolidation, dissolution, liquidation or other like
proceeding or occurrence relating to any of the Issuers, Guarantors, or any
subsidiary of any Issuer, or any other change in the ownership, control,
composition or nature of any of the Issuers, Guarantors, or any subsidiary of
any Issuer; (v) any application of sums paid by any of the Issuers, Guarantors
or any subsidiary of any Issuer with respect to any of the Secured Liabilities,
except to the extent actually applied against such Secured Liabilities,
regardless of what other liabilities of the Issuers, Guarantors, or any
subsidiary of any Issuer remain unpaid; or (vi) the failure of any Party to
assert any claim or demand or to enforce any right or remedy against the
Issuers, Guarantors, any subsidiary of any Issuer or any other Person (including
any other Party with respect to any of the Secured Liabilities) under the
provisions of any of the Financing Documents or otherwise.
Section 2.5 Insolvency. (a) The provisions of this Agreement will be
applicable both before and after the filing or commencement of any Insolvency
Proceeding and all converted or succeeding cases in respect thereof, and all
references herein to any Issuer or Guarantor shall be deemed to apply to the
trustee for such Issuer and/or Guarantor and such Issuer and/or Guarantor as a
debtor-in-possession. The relative rights of the Senior Lien Creditors in or to
any distributions from or in respect of any Collateral or proceeds of Collateral
shall continue after the filing of such Insolvency Proceeding on the same basis
as prior to the date of such filing, subject to any court order approving the
financing of, or use of cash collateral by, any Issuer or Guarantor as
debtor-in-possession. If, in any Insolvency Proceeding and at any time any
Credit Facility Indebtedness exists that has not been Fully Paid, all of the
Senior Lien Creditors (or such number of the Senior Lien Creditors as may have
the power to bind all of them):
(i) consent to any order for use of cash collateral or agree
to the extension of any Credit Facility Indebtedness (including any
debtor-in-possession financing) to any Issuer or Guarantor;
(ii) consent to any order granting any priming lien,
replacement lien, cash payment or other relief on account of Credit
Facility Indebtedness as adequate protection (or its equivalent) for the
interests of the Senior Lien Creditors in the property subject to such Lien
of a Senior Lien Creditor Representative;
(iii) consent to any order approving post-petition financing
pursuant to Section 364 of the United States Bankruptcy Code (including any
"roll-up" of Credit Facility Indebtedness); or
(iv) consent to any order relating to a sale of assets of
any Issuer or Guarantor that provides, to the extent the sale is to be free
and clear of Liens, that all Liens of the Senior Lien Creditor
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Representatives and the Lien of the Trustee shall attach to the proceeds of
the sale,
then the Trustee and the Holders will not oppose or otherwise contest the entry
of such order.
(b) So long as there is any Credit Facility Indebtedness existing
that has not been Fully Paid, none of the Holders or the Trustee will:
(i) request judicial relief, in an Insolvency Proceeding or
in any other court, that would hinder, delay, limit or prohibit the lawful
exercise or enforcement of any right or remedy otherwise available to the
Senior Lien Creditor Representatives in respect of the Collateral or that
would limit, invalidate, avoid or set aside any Lien of a Senior Lien
Creditor Representative or Senior Lien Document or subordinate the Lien of
a Senior Lien Creditor Representatives to the Lien of the Trustee or grant
the Lien of a Senior Lien Creditor Representatives equal ranking to the
Lien of the Trustee;
(ii) oppose or otherwise contest any motion for relief from
the automatic stay or from any injunction against foreclosure or
enforcement of Lien of a Senior Lien Creditor Representatives made by any
Senior Lien Creditor Representatives in any Insolvency Proceeding;
(iii) oppose or otherwise contest any lawful exercise by any
Senior Lien Creditor Representatives of the right to credit bid at any sale
in foreclosure of a Lien of a Senior Lien Creditor Representative;
(iv) oppose or otherwise contest any other request for
judicial relief made in any court by any Senior Lien Creditor
Representative relating to the lawful enforcement of any Lien of a Senior
Lien Creditor Representative;
(v) request relief from the automatic stay in any Insolvency
Proceeding unless any Senior Lien Creditor requests such relief; or
(vi) challenge the enforceability, perfection or the
validity of the Credit Facility Indebtedness or the Lien of a Senior Lien
Creditor Representative.
(c) The Trustee will not file or prosecute in any Insolvency
Proceeding any motion for adequate protection or for relief from the automatic
stay (in each case, or any comparable request for relief) based upon its
interests in the Collateral, except that:
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(i) it may freely seek and obtain relief granting a
replacement lien, additional lien, superpriority, administrative claim or
other adequate protection co-extensive in all respects with, but
subordinated in accordance with the Lien Priority in all respects to, all
Liens granted in such Insolvency Proceeding to the Senior Lien Creditors in
connection with Credit Facility Indebtedness;
(ii) it may assert rights consistent with this Agreement in
connection with the confirmation of any plan of reorganization or similar
dispositive restructuring plan; and
(iii) it may freely seek and obtain any relief upon a motion
for adequate protection or for relief from the automatic stay (in each
case, or any comparable relief), without any condition or restriction
whatsoever, at any time when all Credit Facility Indebtedness has been
Fully Paid.
(d) If, in any Insolvency Proceeding, debt obligations of the
reorganized debtor secured by Liens upon any property of the reorganized debtor
are distributed, both on account of Credit Facility Indebtedness and on account
of the Subordinated Lien Indebtedness, then, to the extent the debt obligations
distributed on account of the Credit Facility Indebtedness and on account of the
Subordinated Lien Indebtedness are secured by Liens upon the same property, the
provisions of this Agreement will survive the distribution of such debt
obligations pursuant to such plan and will apply with like effect to the Liens
securing such debt obligations.
(e) Subject to Section 3.4(a)(ii), the Trustee will not assert or
enforce, at any time when any Credit Facility Indebtedness exists that has not
been Fully Paid, any claim under ss.506(c) of the Bankruptcy Code senior to or
on a parity with the Lien of a Senior Lien Creditor Representative for costs or
expenses of preserving or disposing of any Collateral.
Section 2.6 Insurance and Condemnation Proceeds. At any time any Credit
Facility Indebtedness exists that has not been Fully Paid, the Senior Lien
Creditor Representatives will have the sole right to adjust settlement of all
insurance claims and condemnation awards in the event of any covered loss,
theft, destruction or condemnation of any Collateral and all claims under
insurance constituting Collateral, subject to the terms of the Senior Lien
Documents.
ARTICLE III
ACTIONS OF THE PARTIES
Section 3.1 Limitation on Certain Actions. Subject to Section 3.2,
until the first date on which the Maximum Credit Facility Amount is Fully Paid,
the Trustee will not, without the prior written consent of each Senior Lien
Creditor Representative, take any Enforcement Action.
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Section 3.2 Standstill Period. If an Enforcement Event has occurred and
is continuing, the Trustee, on behalf of the holders of the Notes, may give the
Senior Lien Creditor Representative written notice thereof (an "ENFORCEMENT
EVENT NOTICE"), which notice shall constitute notice to each Senior Lien
Creditor. If (a) such Enforcement Event is continuing for more than 180
consecutive days after the delivery of such Enforcement Event Notice (the
"EXPIRY DATE"), (b) no Senior Lien Creditor Representative has, on or before the
Expiry Date, commenced (and notified the Trustee that such Senior Lien Creditor
Representative has commenced) one or more Enforcement Actions, and (c) the
Issuer or the Guarantor against which the Trustee's proposed Enforcement Action
is to be taken is not the subject of an Insolvency Proceeding, then the Trustee
may, subject to the Lien Priority and the application of all proceeds of the
Collateral in accordance with Section 3.4, take one or more Enforcement Actions.
If (i) any Senior Lien Creditor Representative has commenced any Enforcement
Action on or prior to the Expiry Date and, at any time after the Expiry Date, is
no longer pursuing one or more Enforcement Actions, (ii) no Insolvency
Proceeding is pending against the Issuers or the Guarantor against which the
Trustee's proposed Enforcement Action is to be taken, and (iii) the Enforcement
Event that was the subject of, or existing on the date of, the Enforcement Event
Notice is then continuing, then the Trustee may, subject to the Lien Priority
and the prior application of all proceeds of the Collateral in accordance with
Section 3.4, take one or more Enforcement Actions. Except as expressly provided
for in this Agreement, nothing in this Agreement shall prevent the Parties from
exercising any other remedy, or taking any other action, under any of the
Financing Documents.
Section 3.3 Foreclosure. Any Party taking a permitted Enforcement
Action may enforce its Financing Documents independently as to the Issuers and
each Guarantor and independently of any other remedy or security such Party at
any time may have or hold in connection with its Secured Liabilities, and,
except as provided herein, it shall not be necessary for such Party to marshal
assets in favor of any other Party or any other Person or to proceed upon or
against or exhaust any other security or remedy before proceeding to enforce the
Financing Documents. Each of the Trustee (for so long as the Maximum Credit
Facility Amount is not Fully Paid) and each Senior Lien Creditor Representative
(for so long as the Trustee and the Holders are owed any Subordinated Lien
Indebtedness) expressly waives any right to require the other Party to marshal
assets in favor of any Party or to proceed against any Collateral provided by
the Issuers or any Guarantor, or any other property, assets, or collateral
provided by the Issuers, any Guarantor, or any other Person, and agrees that the
Party taking such permitted Enforcement Action may proceed against the Issuers,
any Guarantor, any Collateral or other property, assets, or other collateral
provided by any of them or by any other Person, in such order as it shall
determine in its sole and absolute discretion. The foregoing notwithstanding:
(a) with respect to the sale or other disposition of any Collateral governed by
Article 9 of the Uniform Commercial Code, the Party conducting such sale or
other disposition agrees in favor of the other Parties that every aspect of such
sale or other disposition, including the method, manner, time, place, and terms,
must be commercially reasonable, (b) with respect to the sale or other
disposition of any other Collateral consisting of real property, the Party
conducting such sale or other disposition agrees in favor of the other Parties
that such sale or other disposition shall be conducted according to the normal
practices of commercial real property secured lenders generally,
11
(c) with respect to the sale or other disposition of any Collateral by any
Party, such Party agrees to provide the other Parties with such written notice
as it is required by applicable law (including, if applicable, the Uniform
Commercial Code) to provide to the Issuers or the Guarantors (without regard to
whether the Issuers or the Guarantors have waived their entitlement to receive
such notice), and (d) each Senior Lien Creditor Representative agrees that, at
such time as the Maximum Credit Facility Amount applicable to its Senior Lien
Documents is Fully Paid, such Senior Lien Creditor Representative thereupon
promptly shall cease all further Enforcement Actions in connection with its
Senior Lien Documents.
Section 3.4 Distribution. Each Party agrees that, upon any distribution
as a result of any Enforcement Action, or the receipt of any other payment or
distribution with respect to the Collateral, the proceeds thereof shall be
distributed in the order of, and in accordance with, the following priorities:
(a) FIRST:
(i) if the Enforcement Action is taken by a Senior Lien
Creditor, to the payment of all reasonable costs and expenses, commissions
and taxes of such Senior Lien Creditor incurred in connection with taking
such Enforcement Action or other realization, including all reasonable
expenses (including attorneys fees and expenses), liabilities and advances
made or incurred by or on behalf of such Senior Lien Creditor in connection
therewith;
(ii) if the Enforcement Action is taken and entitled to be
taken hereunder by the Trustee, to the payment of all reasonable costs and
expenses, commissions and taxes of the Trustee incurred in connection with
taking such Enforcement Action or other realization, including all
reasonable expenses (including attorneys fees and expenses), liabilities
and advances made or incurred by or on behalf of the Trustee in connection
therewith;
(b) SECOND, to the Senior Lien Creditor Representatives, for the
benefit of the Senior Lien Creditors, until the first date on which the Maximum
Credit Facility Amount is Fully Paid;
(c) THIRD, to the Trustee, until all Subordinated Lien
Indebtedness is Fully Paid; and
(d) FOURTH, to or at the direction of the applicable Issuer or
Guarantor, or as a court of competent jurisdiction shall direct.
Section 3.5 Notice of Certain Events; Information. (a) Each Party
agrees that it will notify the other Parties (it being understood that, to the
extent this Section 3.5 applies to an obligation of the Trustee to give notice,
it may satisfy such obligation by giving notice to any Senior Lien Creditor
Representative), in writing, (x) if it receives actual notice of the occurrence
of an Event of Default or an Enforcement
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Event, not later than 30 days after the date of any such occurrence, and (y) at
least 15 days prior to exercising any remedies with respect to any portion of
the Collateral. Notwithstanding the foregoing, no Senior Lien Creditor
Representative shall be obligated to provide such prior written notice if
exigent circumstances require that such Senior Lien Creditor Representative act
immediately in order to preserve, protect, or obtain possession or control over
the Collateral or any portion thereof; provided that, if such exigent
circumstances require such Senior Lien Creditor Representative to so act
immediately, such Senior Lien Creditor Representative agrees to provide the
Trustee with written notice as soon as practicable following such Senior Lien
Creditor Representative first exercising any of its secured creditor remedies
with respect to the Collateral, and no Party shall incur any liability to the
other under this Section 3.5 as a result of the failure of such Party to provide
any such notice so long as the failure to so provide such notice was not the
result of willful misconduct, bad faith or gross negligence.
(b) The Senior Lien Creditor Representatives, on the one hand,
and the Trustee, on the other hand, shall each be responsible for keeping
themselves informed of the financial condition of the Issuers, Guarantors and
their subsidiaries and all other circumstances bearing upon the risk of
nonpayment of the Secured Liabilities. Neither any Senior Lien Creditor
Representative, nor the Trustee, on the other hand, shall have any duty to
advise the other party of information regarding such condition or circumstances
or, except as otherwise expressly provided herein, as to any other matter. If
any Senior Lien Creditor Representative on the one hand, or the Trustee, on the
other hand, in their respective discretion, undertakes at any time or from time
to time to provide any such information to any Party, such first Party shall be
under no obligation to provide any similar information on any subsequent
occasion, to provide any additional information, to undertake any investigation,
or to disclose any information which, pursuant to accepted or reasonable
commercial finance practice, it wishes to maintain confidential.
ARTICLE IV
ENFORCEMENT OF PRIORITIES
Section 4.1 In Furtherance of Lien Priorities. Each Party agrees as
follows:
(a) All payments or distributions of or with respect to the
Collateral that are received by any Party contrary to the provisions of this
Agreement (including payments or distributions in connection with any Insolvency
Proceeding) shall be segregated from other funds and property held by such Party
and shall be held in trust for the Party entitled thereto in accordance with the
provisions of Section 3.4 (the "ENTITLED PARTY") and such Party shall forthwith
pay over such remaining proceeds to the Entitled Party in the same form as so
received (with any necessary endorsement) to be applied (in the case of cash) or
held as Collateral (in the case of non-cash property or securities) in
accordance with the provisions hereof and the provisions of the applicable
Financing Documents.
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(b) After the first date on which the Maximum Credit Facility
Amount relating to any Senior Lien Documents is Fully Paid, each applicable
Senior Lien Creditor Representative will promptly execute and deliver all
further instruments and documents, and take all further acts that may be
necessary, or that the Trustee may reasonably request, to permit the Trustee to
evidence the termination of the Lien Priority applicable to such Senior Lien
Creditor Representative hereunder, or in furtherance thereof; provided that, no
Senior Lien Creditor Representative shall be required to pay over any payment or
distribution, execute any instruments or documents, or take any other action
referred to in this clause (b) to the extent that such action would contravene
any law, order or other legal requirement, and in the event of a controversy or
dispute, such Senior Lien Creditor Representative may interplead any payment or
distribution in any court of competent jurisdiction.
(c) Each Party is hereby authorized to demand specific
performance of this Agreement, whether or not the Issuers or any Guarantor shall
have complied with any of the provisions hereof applicable to it, at any time
when any other Party shall have failed to comply with the provisions of this
Agreement applicable to it, provided that, the remedy of specific performance
shall not be available, and the asserting Party shall be free to assert any and
all legal defenses it may possess, if such remedy would result in, or otherwise
constitute, a violation of the Employee Retirement Income Security Act of 1974,
as amended. Each Party hereby irrevocably waives any defense based on the
adequacy of a remedy at law, which might be asserted as a bar to such remedy of
specific performance.
(d) Upon the earlier to occur of (x) the Refinancing and (y) ten
Business Days after the date hereof, (i) the Trustee and the applicable Senior
Lien Creditor Representative shall enter into a control agreement or control
agreements with respect to the deposit accounts of any Issuer or Guarantor at
any financial institution, constituting part of the Collateral, in form and
substance reasonably acceptable to the Trustee and such Senior Lien Creditor
Representative, which shall supersede any existing control agreements between
the Trustee and such financial institution, and (ii) the Trustee and such Senior
Lien Creditor Representative agrees to terminate or amend and restate such
existing control agreements.
(e) This Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the Secured
Liabilities is, other than as a result of any intentional fraud or gross
negligence of the applicable Party, rescinded or must otherwise be returned by
the applicable Party upon the insolvency, bankruptcy or reorganization of the
Issuers or any Guarantor or otherwise, all as though such payment had not been
made.
Section 4.2 Perfection of Possessory or Control Security Interests. (a)
For the limited purpose of perfecting the security interests of the Parties in
those types or items of Collateral in which a security interest only may be
perfected by possession or control (including perfection of a security interest
in deposit accounts under Article 9 of the Uniform Commercial Code), each Party
hereby appoints the other as its representative for the limited purpose of
possessing or controlling on its behalf any such
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Collateral that may come into the possession or control of such other Party from
time to time, and each Party agrees to act as the other's representative for
such limited purpose of perfecting the other's security interest by possession
or control through a representative, provided that, neither Party shall incur
any liability to the other by virtue of acting as the other's representative
hereunder for such purpose. In this regard, any Party that is in possession or
control of any such item of Collateral agrees that if it elects to relinquish
possession or control of such item of Collateral it shall deliver possession or
control thereof to another Party; provided that, no Party shall be required to
deliver any such item of Collateral or take any other action referred to in this
Section 4.2 to the extent that such action would contravene any law, order or
other legal requirements, and in the event of a controversy or dispute, such
Party may interplead any item of Collateral in any court of competent
jurisdiction.
(b) The Senior Lien Creditor Representatives and the Trustee
agree that if a Senior Lien Creditor Representative shall enter into a control
agreement with respect to any security account or deposit account of an Issuer
or a Guarantor, the Trustee will be given notice by such Issuer or Guarantor and
sufficient opportunity to also become a party thereto in order to perfect its
security interest in such accounts. If and to the extent such control agreements
provide for the right of either the applicable Senior Lien Creditor
Representative or the Trustee to give notice or direction to the depository or
intermediary, as applicable, with respect to such accounts, the Trustee hereby
agrees that, subject to Section 3.2, it will not give any such notice or
direction to any such depository or intermediary unless and until all Credit
Facility Indebtedness has been Fully Paid. The duties or responsibilities of the
Senior Lien Creditor Representatives under this Section 4.2 shall be limited
solely to holding the pledged Collateral as bailee for the Trustee for purposes
of perfecting the Lien therein held by the Trustee to secure the Subordinated
Lien Obligations. The Senior Lien Creditor Representatives shall not have any
obligation to the Trustee or any Holder to care for, protect or insure any
pledged Collateral or to ensure that the Lien on such pledged Collateral has
been properly or sufficiently created or entitled to any particular priority.
The Senior Lien Creditor Representative shall be entitled to deal with the
pledged Collateral in accordance with the terms of the Senior Lien Documents and
this Agreement. The Senior Lien Creditor Representative shall not have any
obligation whatsoever to the Trustee or the Holders to assure that the pledged
Collateral is genuine or owned by any Issuer or Guarantor or otherwise or to
preserve rights or benefits of any Person except as expressly set forth in this
Section. The Senior Lien Creditor Representative shall not have, by reason of
this Agreement or any other document or instrument, a fiduciary relationship in
respect of the Trustee or the Holders.
Section 4.3 Control of Dispositions of Collateral and Effect thereof
on Junior Liens.
(a) Each Party hereby agrees that any Uniform Commercial Code
collection, sale, or other disposition of Collateral by any Senior Lien Creditor
Representative shall be free and clear of any Lien of the Trustee in such
Collateral; provided that, the Trustee shall retain a Lien (having the same
priority as the Lien it previously had on the item of Collateral that was
collected, sold or otherwise disposed of)
15
on the proceeds of such collection, sale, or other disposition (except to the
extent such proceeds are applied to the Credit Facility Indebtedness (up to the
Maximum Credit Facility Amount) in accordance with Section 3.4).
(b) To the extent reasonably requested by any Party, the other
Parties will cooperate in providing any necessary or appropriate releases to
permit a collection, sale, or other disposition of Collateral, as provided in
Section 4.3(a).
Section 4.4 Certain Other Collateral. Subject to Section 4.1(c), any
provision of any Indenture Security Document that requires any Debtor (as
defined in the Security Agreement referred to in the Indenture) to (a) deliver
any Collateral to the Trustee or any Senior Lien Creditor Representative, (b)
provide that the Trustee or any Senior Lien Creditor Representative have control
(as defined in the Uniform Commercial Code) over any Collateral, or (c) list the
Trustee or any Senior Lien Creditor Representative as (x) loss payee or
additional insured on any insurance policy or (y) sole lienholder on any
certificate of title relating to any Collateral, may be satisfied by (A) the
delivery of such Collateral by such Debtor to any Senior Lien Creditor
Representative (or its designee), (B) providing that any Senior Lien Creditor
Representative (or its designee) be provided with control (as defined in the
Uniform Commercial Code) with respect to such Collateral, or (C) listing any
Senior Lien Creditor Representative (or its designee) as (x) loss payee or
additional insured on any insurance policy or (y) sole lienholder on any
certificate of title relating to Collateral, in each of the foregoing cases in
clauses (A), (B) and (C), for the benefit of all of the Senior Lien Creditors
and the Trustee.
ARTICLE V
MISCELLANEOUS
Section 5.1 Rights of Subrogation. The Trustee agrees that no payment
or distribution to any Senior Lien Creditor pursuant to the provisions of this
Agreement shall entitle the Trustee to exercise any rights of subrogation in
respect thereof until the first date on which the Maximum Credit Facility Amount
of all the Senior Lien Documents shall have been Fully Paid.
Section 5.2 Further Assurances. The Parties will, at their own expense
and at any time and from time to time, promptly execute and deliver all further
instruments and documents, and take all further action, that may be necessary or
desirable, or that any Party may reasonably request, in order to protect any
right or interest granted or purported to be granted hereby or to enable any
Party to exercise and enforce its rights and remedies hereunder; provided that,
no Party shall be required to pay over any payment or distribution, execute any
instruments or documents, or take any other action referred to in this Section
5.2 to the extent that such action would contravene any law, order or other
legal requirement binding upon such Party, and in the event of a controversy or
dispute, any Party may interplead any payment or distribution in any court of
competent jurisdiction, without further responsibility in respect of such
payment or distribution under this Section 5.2. Without limiting the foregoing,
but in furtherance thereof, the Trustee agrees, upon the request of the New
Revolver Agent, to execute and deliver to the New Revolver Agent (or its
designees) a subordination of mortgage,
16
subordination of preferred ship mortgage and subordination of trademark security
interests, in each case in form to be recordable with the applicable
governmental authorities and otherwise in form and substance reasonable
acceptable to the New Revolver Agent and the Trustee.
Section 5.3 Defenses Similar to Suretyship Defenses. All rights,
interests, agreements and obligations of each of the Parties under this
Agreement, shall remain in full force and effect irrespective of:
(a) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Secured Liabilities, or any other amendment
or waiver of or any consent to departure from the Financing Documents; provided
that, this clause (a) shall not apply to, and the Trustee's Liens in the
Collateral shall not be subordinated in priority by virtue of this Agreement to,
any Senior Lien Creditor Representative's Liens therein if and to the extent
that the Credit Facility Indebtedness applicable to such Senior Lien Creditor
Representative's Senior Lien Documents is increased, without the express written
consent of the Trustee, to an amount in excess of the applicable Maximum Credit
Facility Amount for such Senior Lien Document;
(b) any exchange, release, non-enforcement or non-perfection of
any Party's Liens with respect to any Collateral, or any release, amendment or
waiver of or consent to departure from any guaranty, for all or any of the
Secured Liabilities; or
(c) any failure by any Party to marshal assets in favor of any
other Party or any other Person or to proceed upon or against or exhaust any
security or remedy before proceeding to enforce the Financing Documents.
Section 5.4 Waiver. Except as otherwise provided in Section 2.1 and the
other provisions hereof, to the maximum extent permitted by applicable law, the
Trustee hereby waives, solely with respect to the Collateral to which the Lien
Priority relates, any failure, omission, delay or lack on the part of any Senior
Lien Creditor to enforce, assert or exercise any right, power or remedy
conferred on such Senior Lien Creditor in any of the Senior Lien Documents or
the inability of such Senior Lien Creditor to enforce any provision of the
Senior Lien Documents or this Agreement.
Section 5.5 Amendments, Etc. No amendment or waiver of any provision of
this Agreement nor consent to any departure by any Party shall in any event be
effective unless the same shall be in writing and signed by each Party, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided that, neither Section 4.4 nor
this Section 5.5 may be amended or otherwise modified without the prior written
consent of the Issuers.
Section 5.6 Addresses for Notices. All demands, notices and other
communications provided for hereunder shall be in writing and, if to the
Trustee, mailed or sent by telecopy or delivered to it, addressed to it as
follows:
17
U.S. Bank National Association
60 Livingston Avenue
St. Paul, MN 55107
Attention: Corporate Trust Department
Facsimile: (651) 495-8097
and if to any Senior Lien Creditor Representative, mailed or sent by telecopy or
delivered to such Senior Lien Creditor Representative, addressed to it as
follows:
Wells Fargo Foothill, Inc.
2450 Colorado Avenue, Suite 3000W
Santa Monica, CA 90404
Attention: Business Finance Division Manager
Facsimile: (310) 453-7313
With a copy to:
Paul Hastings Janofsky & Walker, LLP
600 Peachtree Street, NE, Suite 2400
Atlanta, GA 30308
Attention: Cindy J. K. Davis, Esq.
Facsimile: (404) 815-2424
or as to any Party at such other address as shall be designated by such Party in
a written notice to the other parties complying as to delivery with the terms of
this Section 5.6. All such demands, notices and other communications shall be
effective: when mailed, two business days after deposit in the mails, postage
prepaid; when sent by telecopy, when receipt is acknowledged by the receiving
telecopy equipment (or at the opening of the next business day if receipt is
acknowledged after normal business hours); or when delivered, as the case may
be, addressed as aforesaid.
Section 5.7 No Waiver of Remedies. No failure on the part of any Party
to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Section 5.8 Continuing Agreement. This Agreement is a continuing
agreement and shall (a) be binding upon the Parties and their successors and
assigns (including all Holders and all Persons that become lenders or
participants under the Senior Lien Documents), and (b) inure to the benefit of
and be enforceable by the Parties, the Holders, the Senior Lien Creditors and
their respective successors, transferees and assigns.
Section 5.9 Governing Law; Entire Agreement. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New York
including Sections 5-1401 and 5-1402 of the New York General Obligations Law,
except as otherwise preempted by applicable federal law. This Agreement
18
constitutes the entire agreement and understanding among the Parties with
respect to the subject matter hereof and supersedes any prior agreements,
written or oral, with respect thereto.
Section 5.10 Counterparts. This Agreement may be executed in any number
of counterparts, and it is not necessary that the signatures of all Parties be
contained on any one counterpart hereof, each counterpart will be deemed to be
an original, and all together shall constitute one and the same document.
Section 5.11 No Third Party Beneficiary. This Agreement is solely for
the benefit of the Parties (and their successors and assigns) and the holders of
the Secured Liabilities (including the Senior Lien Creditors and the Holders).
No other Person (including the Issuers, any Guarantor or any subsidiary or
affiliate of the Issuers, except the Issuers and Guarantors solely with respect
to Section 4.4 and the proviso to Section 5.5) shall be deemed to be a
third-party beneficiary of this Agreement or shall have any rights to enforce
any provisions hereof.
Section 5.12 Headings. The headings of the articles and sections of
this Agreement are inserted for purposes of convenience only and shall not be
construed to affect the meaning or construction of any of the provisions hereof.
Section 5.13 Severability. If any of the provisions in this Agreement
shall, for any reason, be held invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement and shall not invalidate the Lien Priority or any
other priority set forth in this Agreement.
Section 5.14 Trustee Status. Notwithstanding any term herein to the
contrary, it is hereby expressly agreed and acknowledged that the
lien-subordination and related agreements set forth herein by the Trustee are
made solely in its capacity as trustee and collateral agent under the Indenture
Documents and with respect to the Notes issued under the Indenture (and not in
its individual commercial capacity, except to the extent that it is or becomes a
Holder of any such Note). The Trustee shall not have any duties, obligations, or
responsibilities to any Senior Lien Creditor or any Senior Lien Creditor
Representative under this Agreement except as expressly set forth herein.
Nothing in this Agreement shall be construed to operate as a waiver by the
Trustee, with respect to the Issuers or any holder of any Subordinated Lien
Indebtedness, of the benefit of any exculpatory provisions, presumptions,
indemnities, protections, benefits, immunities or reliance rights contained in
the Indenture, and, by its acknowledgment hereof, each Issuer expressly agrees
that as between itself and the Trustee, the Trustee shall have such benefit with
respect to all actions or omissions by the Trustee pursuant to this Agreement.
For all purposes of this Agreement, the Trustee may (a) rely in good faith, as
to matters of fact, on any representation of fact believed by the Trustee to be
true (without any duty of investigation) and that is contained in a written
certificate of any authorized representative of the Issuers or of any Senior
Lien Creditor or any Senior Lien Creditor Representative, (b) rely in good
faith, as to matters of law, on any advice received from its legal counsel or an
opinion of its counsel, counsel to the Issuers or
19
counsel to any Senior Lien Creditor or any Senior Lien Creditor Representative,
and shall have no liability for any action or omission taken in reliance
thereon, and (c) assume in good faith (without any duty of investigation), and
rely upon, the genuineness, due authority, validity, and accuracy of any
certificate, instrument, notice, or other document believed by it in good faith
to be genuine and presented by the proper person.
Section 5.15 New Revolver. (a) Each of the Parties hereby acknowledges
and agrees that, upon consummation of the Refinancing, (a) the New Revolver
Agent shall be, and each of the DJL Lender and the OED Lender shall cease to be,
a Senior Lien Creditor and/or a Senior Lien Creditor Representative hereunder;
and (b) the New Revolver Documents shall constitute, and each of the Existing
Revolver Documents shall cease to constitute, Senior Lien Documents hereunder,
in each case, automatically and without further consent of any Party.
(b) The Parties agree that, notwithstanding anything herein to
the contrary, in connection with the Refinancing, the FF&E Secured Liabilities
and the New Revolver Secured Liabilities may be evidenced by a common set of
agreements, instruments and other documents, and if so evidenced, all references
herein to the FF&E Loan Documents shall be deemed to be references to such
agreements, instruments and other documents as they relate to the FF&E Secured
Liabilities, and all references herein to the New Revolver Loan Documents shall
be deemed to be references to such agreements, instruments and other documents
as they relate to the New Revolver Secured Liabilities. In furtherance thereof,
all references to the FF&E Agent, the FF&E Lenders, the FF&E Borrowers, the FF&E
Credit Agreement, the New Revolver Agreement, the New Revolver Lenders and the
New Revolver Agent shall be construed in like manner, mutatis mutandis.
[signature pages follow]
20
IN WITNESS WHEREOF, each Party has caused this Agreement to be duly
executed and delivered as of the date first above written.
WELLS FARGO FOOTHILL, INC.,
as FF&E Agent, OED Lender, DJL Lender
and New Revolver Agent
By: /s/ Todd R. Nakamoto
------------------------------------
Name: Todd R. Nakamoto
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ Frank P. Leslie, II
------------------------------------
Name: Frank P. Leslie, II
Title: Vice President
ACKNOWLEDGMENT
Each of the undersigned hereby acknowledges that (a) it has received a
copy of the foregoing Intercreditor Agreement, dated as of April 16, 2004 (the
"INTERCREDITOR AGREEMENT"; undefined capitalized terms used in this
Acknowledgment have the meanings assigned to them in the Intercreditor
Agreement), by and among U.S. Bank National Association, as Trustee, and Wells
Fargo Foothill, Inc., as FF&E Agent, OED Lender, DJL Lender and New Revolver
Agent, and consents thereto, and agrees to recognize all rights granted thereby
to the Parties, and will not do any act or perform any obligation that is not in
accordance with the agreements set forth in such Intercreditor Agreement; and
(b) it is not an intended beneficiary or third party beneficiary under the
Intercreditor Agreement (other than with respect to Section 4.4 and the proviso
to Section 5.5 thereof).
Dated as of the date first above written.
DIAMOND JO, LLC, as an Issuer
By: /s/ M. Brent Stevens
------------------------------------
Name: M. Brent Stevens
Title: Chief Executive Officer
THE OLD EVANGELINE DOWNS CAPITAL CORP.,
as an Issuer
By: /s/ M. Brent Stevens
------------------------------------
Name: M. Brent Stevens
Title: Chief Executive Officer
OED ACQUISITION, LLC,
as a Guarantor
By: /s/ M. Brent Stevens
------------------------------------
Name: M. Brent Stevens
Title: Chief Executive Officer
THE OLD EVANGELINE DOWNS, L.L.C.,
as a Guarantor
By: /s/ M. Brent Stevens
------------------------------------
Name: M. Brent Stevens
Title: Chief Executive Officer
PENINSULA GAMING CORP.,
as a Guarantor
By: /s/ M. Brent Stevens
------------------------------------
Name: M. Brent Stevens
Title: Chief Executive Officer