EX 10.18
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AMENDED AND RESTATED
INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT
Dated as of January 22, 2001
By and Among
CITIBANK, N.A.,
as Collateral Agent,
THE NOTEHOLDERS,
CITIBANK, N.A.
as Agent for the Lenders,
THE LENDERS,
AND
ADDITIONAL CREDITORS
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TABLE OF CONTENTS
Page
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Recitals ..........................................................1
Section 1. DEFINITIONS...............................................3
Section 1.1. Definitions...............................................3
Section 1.2. Effectiveness of this Agreement...........................9
Section 2. RELATIONSHIPS AMONG SECURED PARTIES.......................9
Section 2.1. Restrictions on Actions...................................9
Section 2.2. Representations and Warranties...........................10
Section 2.3. Cooperation; Accountings.................................11
Section 2.4. Termination of Credit Agreement, Note Purchase and
Guarantee Agreement or Additional Facilities ............11
Section 2.5. Additional Creditors.....................................11
Section 3. APPOINTMENT AND AUTHORIZATION OF COLLATERAL AGENT........12
Section 4. AGENCY PROVISIONS........................................12
Section 4.1. Delegation of Duties.....................................12
Section 4.2. Exculpatory Provisions...................................12
Section 4.3. Reliance by Collateral Agent.............................13
Section 4.4. Knowledge or Notice of Default, Event of Default or
Special Event of Default.................................14
Section 4.5. Non-Reliance on Collateral Agent and Other
Secured Parties..........................................14
Section 4.6. Indemnification..........................................15
Section 4.7. Collateral Agent in Its Individual Capacity..............15
Section 4.8. Successor Collateral Agent...............................15
Section 4.9. Resignation of Existing Collateral Agent.................16
Section 5. ACTIONS BY THE COLLATERAL AGENT..........................16
Section 5.1. Duties and Obligations...................................16
Section 5.2. Notification of Default..................................17
Section 5.3. Exercise of Remedies.....................................17
Section 5.4. Instructions from Secured Parties........................17
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TABLE OF CONTENTS
Page
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Section 5.5. Emergency Actions........................................18
Section 5.6. Changes to Security Documents............................18
Section 5.7. Release of Collateral....................................18
Section 5.8. Other Actions............................................19
Section 5.9. Cooperation..............................................19
Section 5.10. Distribution of Proceeds.................................19
Section 5.11. Senior Preferential Payments and Special
Trust Account............................................20
Section 5.12. Authorized Investments...................................21
Section 5.13. Restoration of Obligations...............................21
Section 5.14. Bankruptcy, Preferences, etc.............................22
Section 6. BANKRUPTCY PROCEEDINGS...................................22
Section 7. MISCELLANEOUS............................................23
Section 7.1. Secured Parties; Other Collateral........................23
Section 7.2. Marshalling..............................................23
Section 7.3. Consents, Amendments, Waivers............................23
Section 7.4. Parties in Interest......................................23
Section 7.5. Counterparts.............................................24
Section 7.6. Termination..............................................24
Section 7.7. Notices..................................................24
Section 7.8. Establishing Outstanding Amount of
Senior Secured Obligations...............................25
Section 7.9. Governing Law............................................25
SCHEDULE I INFORMATION RELATING TO NOTEHOLDERS
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AMENDED AND RESTATED
INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT
THIS AMENDED AND RESTATED INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT,
dated as of January 22, 2001 (this "Agreement"), is entered into by and among
Citibank, N.A. ("Citibank"), in its capacity as Collateral Agent (together with
its permitted successors, transferees and assigns, the "Collateral Agent"),
Citibank, N.A., as the agent under the Credit Agreement described below
(together with its permitted successors, transferees and assigns, the "Agent"),
each of the Noteholders set forth on the signature pages hereof (together with
their permitted successors, transferees and assigns, the "Noteholders"), each of
the Lenders described below set forth on the signature pages hereof (together
with their permitted successors, transferees and assigns, the "Lenders") and the
Additional Creditors (as described below).
RECITALS:
A. Pursuant to the Note Purchase and Guarantee Agreement, dated as of June
1, 1999 (as amended by a certain Modification Agreement dated as of July 24,
2000, the "Note Purchase and Guarantee Agreement"), entered into by ResortQuest
International, Inc. (the "Company") and certain subsidiaries of the Company as
guarantors (the "Note Guarantors"), with each of the Noteholders identified
therein (the "Initial Noteholders"), the Initial Noteholders purchased
$50,000,000 9.06% Guaranteed Senior Secured Notes, Due June 16, 2004
(collectively, the "Senior Secured Notes") from the Company. The Noteholders are
the Initial Noteholders or the permitted successors, transferees and/or assigns
of the Initial Noteholders.
B. The Company entered into that certain Credit Agreement, dated May 28,
1998, as amended by a letter agreement dated as of September 30, 1998, the
Second Amendment dated as of December 7, 1998, the Third Amendment dated as of
April 16, 1999, the Fourth Amendment dated as of June 1, 1999 and the Fifth
Amendment dated as of December 31, 1999 (collectively, the "Existing Credit
Agreement"), with certain subsidiaries of the Company as guarantors (the
"Existing Credit Agreement Guarantors"), the lenders described therein (the
"Existing Lenders"), Societe Generale, as Co-Agent, and Bank of America, N.A.,
formerly NationsBank, N.A., as agent (together with its permitted successors,
transferees and assigns, the "Existing Credit Agreement Agent") for the Existing
Lenders, pursuant to which the Existing Lenders extended certain commitments to
make certain credit facilities available to the Company.
C. The Initial Noteholders, the Existing Credit Agreement Agent as agent
for the Existing Lenders, the Existing Lenders, and Bank of America, N.A.,
formerly NationsBank, N.A., as collateral agent, entered into the Intercreditor
and Collateral Agency Agreement dated as of June 1, 1999 (the "Initial
Intercreditor Agreement"), and pursuant to the Initial Intercreditor Agreement,
the Secured Parties (as defined therein) agreed, among other things, that the
obligations of the Company to the Noteholders under the Note Purchase and
Guarantee Agreement and under the Senior Note Documents (as defined therein),
including, without limitation, the obligations evidenced by the Senior Secured
Notes, and the obligations of the Company to the Existing Lenders under the
Existing Credit Agreement and under the Loan Documents (as defined in the
Existing Credit Agreement) including, without limitation, the obligations
evidenced by the promissory notes issued under the Existing Credit Agreement,
and the obligations of the Company to any Additional Creditors (described
therein) that became party to the Initial Intercreditor Agreement under
agreements evidencing any Additional Funded Debt (as defined below) were to be
secured pari passu pursuant to the Security Documents (as defined therein). The
Initial Noteholders, the Existing Lenders and the Existing Credit Agreement
Agent appointed Bank of America, N.A., formerly NationsBank, N.A., as collateral
agent (in such capacity, the "Existing Collateral Agent") to act on behalf of
the Secured Parties regarding the Collateral (as therein defined), all as more
fully provided therein.
D. The Company, the Lenders (as defined in the Credit Agreement
(hereinafter defined)) listed therein and the Agent have amended and restated
the Existing Credit Agreement as of the date hereof to modify the credit
facilities provided thereunder and to make certain other amendments to the
Existing Credit Agreement (the Existing Credit Agreement, as amended and
restated by the Amended and Restated Credit Agreement dated as of even date
herewith among the Company, the Guarantors as defined therein (the "Credit
Agreement Guarantors"), the Lenders, the Agent, Bank of America, N.A., as
Documentation Agent, Credit Lyonnais New York Branch, as Syndication Agent, and
Salomon Smith Barney Inc., as Arranger, and as further amended, modified,
restated, supplemented, extended, renewed or replaced from time to time, is
hereinafter collectively referred to as the "Credit Agreement").
E. The Company contemplates that from time to time after the date hereof,
the Company may, subject to compliance with the terms, conditions, covenants and
restrictions of the Note Purchase and Guarantee Agreement and of the Credit
Agreement, incur additional Funded Indebtedness (as defined in the Credit
Agreement) (the "Additional Funded Debt") which the Company desires to secure by
the Collateral. Subject to the restrictions of Section 8.1 of the Credit
Agreement and the terms of the Note Purchase and Guarantee Agreement, such
Additional Funded Debt shall be permitted to be secured by the Collateral if the
obligees of such Additional Funded Debt execute and deliver and become a party
to this Agreement pursuant to the requirements of ss.2.5 hereof (such obligees
of Additional Funded Debt permitted to be secured by the Collateral that become
parties hereto, collectively, the "Additional Creditors").
F. The parties now intend that the Initial Intercreditor Agreement shall
be amended and restated so that the obligations of the Company to the
Noteholders under the Note Purchase and Guarantee Agreement and under the Senior
Note Documents including, without limitation, the obligations evidenced by the
Senior Secured Notes, and the obligations of the Company to the Lenders under
the Credit Agreement and under the Loan Documents (as hereinafter defined)
including, without limitation, the obligations evidenced by the promissory notes
issued under the Credit Agreement (together with amendments, modifications, and
replacements thereof, the "Credit Agreement Notes"), and the obligations of the
Company to the Additional Creditors under the agreements evidencing Additional
Funded Debt (the "Additional Facilities") will be secured pari passu pursuant to
the Security Documents described below. The Noteholders, the
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Lenders and the Agent desire to appoint Citibank, N.A. as Collateral Agent to
act on behalf of the Secured Parties regarding the Collateral (as hereinafter
defined), all as more fully provided herein. The parties hereto have entered
into this Agreement to, among other things, further define the rights, duties,
authority and responsibilities of the Collateral Agent and the relationship
among the Secured Parties regarding their pari passu interests in the
Collateral.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto hereby agree that the Initial Intercreditor
Agreement is hereby amended and restated in its entirety to provide as follows:
SECTION 1. DEFINITIONS.
Section 1.1. Definitions. The following terms shall have the meanings
assigned to them below in this ss.1 or in the provisions of this Agreement
referred to below:
"Additional Creditors" shall have the meaning assigned thereto in the
Recitals hereof.
"Additional Facilities" shall have the meaning assigned thereto in the
Recitals hereof.
"Additional Facility Documents" shall mean all outstanding Additional
Facilities, the Security Documents and all other mortgages, security agreements,
documents, certificates and instruments relating to, arising out of, or in any
way connected therewith or any of the transactions contemplated thereby.
"Additional Facility Notes" shall mean the obligations of the Company
which are evidenced by the promissory notes issued under the Additional
Facilities.
"Additional Funded Debt" shall have the meaning assigned thereto in the
Recitals hereof.
"Affected Secured Party" shall have the meaning assigned thereto in
ss.5.14 hereof.
"Affiliate" shall mean, with respect to any Person, any other Person that,
directly or indirectly through one or more intermediaries controls, is
controlled by, or is under common control with, such first Person.
"Agent" shall have the meaning assigned thereto in the Introductory
Paragraph hereof.
"Agreement" shall mean this Intercreditor and Collateral Agency Agreement
as amended, modified or restated in accordance with the terms hereof.
"Bankruptcy Code" shall mean the Bankruptcy Code in Title 11 of the United
States Code, as amended, modified, succeeded or replaced from time to time.
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"Bankruptcy Proceeding" shall mean, with respect to any Person, a general
assignment by such Person for the benefit of its creditors, or the institution
by or against such Person of any proceeding seeking its relief as debtor, or
seeking to adjudicate such Person as bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment or composition of such Person or its
debts, under any law relating to bankruptcy, insolvency, reorganization or
relief of debtors, or seeking appointment of a receiver, trustee, custodian or
other similar official for such Person or for any substantial part of its
property.
"Business Day" shall mean any day other than a Saturday, a Sunday or a day
on which commercial banks in New York, New York are required or authorized to be
closed.
"Cash Equivalent Investments" shall mean, (a) direct obligations of the
United States Government or any agencies thereof and obligations guaranteed by
the United States Government, in each case having remaining terms to maturity of
not more than thirty days; and (b) certificates of deposit, time deposits and
acceptances, including Eurodollar deposits, having remaining terms to maturity
of not more than sixty days issued by a United States bank which has a combined
capital and surplus of at least $750,000,000 and whose long-term certificates of
deposit are rated "A" or better by Standard & Poor's Corporation or "A2" or
better by Moody's Investors Service, Inc.
"Citibank" shall mean Citibank, N.A., a national banking association, and
any Person who succeeds to all, or substantially all, of the assets and business
of such entity.
"Collateral" shall mean all collateral under the Security Documents.
"Collateral Agent" shall have the meaning assigned thereto in the
Introductory Paragraph hereof.
"Commitment" shall mean the commitment of the Lenders to make advances or
extend credit to the Company in accordance with the Credit Agreement.
"Company" shall mean ResortQuest International, Inc., a Delaware
corporation, and any Person who succeeds to all, or substantially all, of the
assets and business of such entity.
"Corporation" shall mean a corporation, joint stock association or
business trust.
"Credit Agreement" shall have the meaning assigned thereto in the Recitals
hereof, and shall include such agreement as amended, modified, restated or
renewed in accordance with its terms.
"Credit Agreement Guarantor" shall have the meaning assigned thereto in
the Recitals hereof.
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"Credit Agreement Loans" shall mean the revolving credit loans and
swingline loans made by the Lenders to the Company from time to time pursuant to
the Credit Agreement.
"Credit Agreement Notes" shall have the meaning assigned thereto in the
Recitals hereof.
"Default" shall mean any event or condition, the occurrence of which
would, with the lapse of time or the giving of notice, or both, constitute an
Event of Default.
"Event of Default" shall mean any event or occurrence which would
constitute an "Event of Default" under the terms of the Credit Agreement, the
Note Purchase and Guarantee Agreement or any Additional Facility.
"Existing Collateral Agent" shall have the meaning assigned thereto in the
Recitals hereof.
"Existing Credit Agreement" shall have the meaning assigned thereto in the
Recitals hereof.
"Existing Credit Agreement Agent" shall have the meaning assigned thereto
in the Recitals hereof.
"Existing Credit Agreement Guarantor" shall have the meaning assigned
thereto in the Recitals hereof.
"Existing Lenders" shall have the meaning assigned thereto in the Recitals
hereof.
"Guarantors" shall mean the Note Guarantors, the Existing Credit Agreement
Guarantors, the Credit Agreement Guarantors, the Pledge Guarantors, the Security
Agreement Guarantors and any other Person who becomes a guarantor under any
Senior Note Document or any Loan Document.
"Initial Intercreditor Agreement" shall have the meaning assigned thereto
in the Recitals thereof.
"Initial Noteholders" shall have the meaning assigned thereto in the
Recitals hereof.
"Lender Paydown Date" shall have the meaning assigned thereto in ss.5.13
hereof.
"Lenders" shall have the meaning assigned thereto in the Introductory
Paragraph hereof.
"Letter of Credit" shall have the meaning set forth in the Credit
Agreement.
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"Lien" upon the property or assets (or the income or profits therefrom) of
any Person shall mean (in each case, whether the same is consensual or
non-consensual or arises by contract, operation of law, legal process or
otherwise) any mortgage, lien, pledge, attachment, charge or other security
interest or encumbrance or other type of preferential arrangement of any kind on
or in respect of any property of such Person, or upon the income or profits
therefrom, including, without limitation, the lien or retained security title of
a conditional vendor and any covenant, right of way or other encumbrance on
title to real property.
"Loan Documents" shall mean the Credit Agreement, the Credit Agreement
Notes, the Security Documents and all other mortgages, security agreements,
documents, certificates and instruments relating to, arising out of, or in any
way connected therewith or any of the transactions contemplated thereby.
"LOC Obligations" shall have the meaning assigned thereto in the Credit
Agreement.
"Make-Whole Amount" shall have the meaning assigned thereto in Section 8.7
of the Note Purchase and Guarantee Agreement.
"Note Guarantors" shall have the meaning assigned thereto in the Recitals
hereof.
"Note Purchase and Guarantee Agreement" shall have the meaning assigned
thereto in the Recitals hereof, and shall include such agreements as amended or
modified in accordance with their respective terms.
"Noteholders" shall have the meaning assigned thereto in the Introductory
Paragraph hereof.
"Notice of Default" shall mean a notice pursuant to ss.5.2 hereof from the
Collateral Agent or the Required Secured Parties to the Secured Parties of the
occurrence of a Default, an Event of Default or a Special Event of Default.
"Participation Interests" shall have the meaning assigned thereto in the
Credit Agreement.
"Person" shall mean an individual, corporation, partnership, limited
liability company, trust or unincorporated organization, and a government or
agency or political subdivision thereof.
"Pledge Agreement" shall mean the Amended and Restated Pledge Agreement
dated as of even date herewith among the Company, Whistler Chalets Holding
Corp., Whistler Chalets Ltd., the guarantors identified on the signature pages
thereto and any guarantor that may become a party thereunder (individually, a
"Pledge Guarantor" and collectively the "Pledge Guarantors") and Citibank, as
collateral agent for the Lenders and the Noteholders.
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"Pledge Guarantor" shall have the meaning assigned thereto in the
definition of "Pledge Agreement."
"Required Secured Parties" shall mean, as of any date of determination,
(a) Noteholders holding more than 50% of the outstanding principal amount of the
Senior Secured Notes, (b) Lenders holding directly, or indirectly through
Participation Interests, more than 50% of the sum of the outstanding principal
amount of the Credit Agreement Notes and the LOC Obligations, and (c) those
Additional Creditors holding more than 50% of the outstanding principal amount
of the Additional Funded Debt which are not affiliated with the Company.
"Returned Deposit" shall have the meaning assigned thereto in ss.5.14
hereof.
"Risk Period" shall have the meaning assigned thereto in ss.5.13 hereof.
"Secured Party" shall mean any Lender, any Noteholder, any Additional
Creditor and any permitted successor and assign to the interests in the Senior
Secured Obligations owing to any such Lender, Noteholder or Additional Creditor,
and "Secured Parties" shall mean all Secured Parties, collectively.
"Security" shall have the same meaning as in Section 2(1) of the
Securities Act of 1933, as amended.
"Security Agreement" shall mean the Amended and Restated Security
Agreement, dated as of even date herewith among the Company, the guarantors
identified on the signature pages thereto and any guarantor that may become a
party thereunder (individually, a "Security Agreement Guarantor" and
collectively the "Security Agreement Guarantors") and Citibank, as collateral
agent for the Lenders and the Noteholders.
"Security Agreement Guarantor" shall have the meaning assigned thereto in
the definition of "Security Agreement."
"Security Documents" shall mean the Security Agreement, the Pledge
Agreement, any Hedging Agreements (as defined in the Credit Agreement), the
guarantees executed, delivered and granted by the Note Guarantors by Section 22
of the Note Purchase and Guarantee Agreement, the guarantees executed, delivered
and granted by the Credit Agreement Guarantors as evidenced under Section 4 of
the Credit Agreement, any and all other agreements, documents and instruments
granting to the Collateral Agent Liens to secure the Senior Secured Obligations,
whether now or hereafter executed, each as amended or amended and restated in
conjunction herewith, or as may be amended from time to time hereafter in
accordance with the terms hereof, and any and all ancillary documents and
instruments relating thereto such as stock powers and financing statements and
all extensions, renewals, amendments, substitutions and replacements to and of
any of the foregoing; provided, however, that Security Documents shall not
include the Credit Agreement, the Credit Agreement Notes, the Note Purchase and
Guarantee Agreement, the Senior Secured Notes or the Additional Facilities.
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"Senior Note Documents" shall mean the Note Purchase and Guarantee
Agreement, the Senior Secured Notes, the Security Documents and all other
mortgages, security agreements, documents, certificates and instruments relating
to, arising out of, or in any way connected therewith or any of the transactions
contemplated thereby.
"Senior Preferential Payment" shall mean any payments, or proceeds of the
Collateral, from the Company or any other source with respect to the Senior
Secured Obligations (including from the exercise of any set-off) which are:
(a) received by a Secured Party within 90 days prior to (1) the
commencement of a Bankruptcy Proceeding with respect to the Company or (2) the
acceleration of the Senior Secured Notes or the obligations under the Credit
Agreement and the Credit Agreement Notes, and which payment reduces the amount
of the Senior Secured Obligations owed to such Secured Party below the amount
owed to such Secured Party as of the 90th day prior to such commencement or
acceleration,
(b) received by a Secured Party (1) within 90 days prior to the occurrence
of any Event of Default which has not been waived or cured within 30 days after
the occurrence thereof and which payment reduces the amount of the Senior
Secured Obligations owed to such Secured Party below the amount owed to such
Secured Party as of the 90th day prior to the occurrence of such Event of
Default or (2) within 30 days after the occurrence of such Event of Default, or
(c) received by a Secured Party after the occurrence of a Special Event of
Default except as provided in ss.5.11(b).
"Senior Preferential Payment Period" shall mean, with respect to any
payment received by a Lender, the period during which there is a possibility
that such payment could be characterized as a Senior Preferential Payment
pursuant to clause (a) or (b) of the definition of the term Senior Preferential
Payment upon the occurrence of any of the events described therein.
"Senior Secured Notes" shall have the meaning assigned thereto in the
Recitals hereof.
"Senior Secured Obligations" shall mean collectively the indebtedness,
obligations and liabilities of the Company and the Guarantors to the Lenders
under the Loan Documents (whether in respect of principal, interest, Letter of
Credit reimbursement obligations, fees, expenses, indemnification obligations or
otherwise), the indebtedness, obligations and liabilities of the Company and the
Guarantors to the Noteholders under the Senior Note Documents (including, but
not limited to, all unpaid principal of, premium, if any, accrued and unpaid
interest on the Senior Secured Notes and any amounts payable in respect of
indemnification obligations under the Senior Note Documents) and the
indebtedness, obligations and liabilities of the Company and, if applicable, the
Guarantors to the Additional Creditors under the Additional Facilities, in each
case whether now existing or hereafter arising, joint or several, direct or
indirect, absolute or contingent, due or to become due, matured or unmatured,
liquidated or
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unliquidated, arising by contract, operation of law or otherwise, and all
obligations of the Company and the Guarantors to the Secured Parties or the
Collateral Agent arising out of any extension, refinancing or refunding of any
of the foregoing obligations.
"Special Event of Default" shall mean (a) the commencement of a Bankruptcy
Proceeding with respect to the Company, (b) any other Event of Default which has
not been waived or cured within 30 days after the occurrence thereof, or (c) the
acceleration of the Senior Secured Notes or the obligations under the Credit
Agreement and the Credit Agreement Notes or under the Additional Facilities.
"Special Trust Account" shall mean that certain restricted account
maintained by the Collateral Agent for the purpose of receiving and holding
Senior Preferential Payments.
The term "subsidiary" shall mean, as to any particular parent corporation
or partnership or limited liability company, any corporation of which more than
50% (by number of votes) of the Voting Stock shall be beneficially owned,
directly or indirectly, by such parent corporation or partnership or limited
liability company. The term "Subsidiary" shall mean a subsidiary of the Company.
"Voting Stock" shall mean Securities of any class or classes, the holders
of which are ordinarily, in the absence of contingencies, entitled to elect a
majority of the corporate directors (or Persons performing similar functions).
Section 1.2. Effectiveness of this Agreement. The effectiveness of this
Agreement is conditioned upon (a) the execution and delivery of this Agreement
by the Collateral Agent, the Agent, the Lenders and the Noteholders, (b) the
execution, delivery and effectiveness of the Credit Agreement and the Security
Documents by the parties thereto and (c) the execution and delivery of the
Acknowledgment of this Agreement by the Company.
SECTION 2. RELATIONSHIPS AMONG SECURED PARTIES.
Section 2.1. Restrictions on Actions. Each Secured Party agrees that, so
long as any Senior Secured Obligations are outstanding or available, the
provisions of this Agreement shall provide the exclusive method by which any
Secured Party may exercise rights and remedies under the Security Documents.
Therefore, each Secured Party shall, for the mutual benefit of all Secured
Parties, except as permitted under this Agreement:
(a) refrain from taking or filing any action, judicial or otherwise, to
enforce any rights or pursue any remedy under the Security Documents, except for
delivering notices hereunder;
(b) refrain from (1) selling any Senior Secured Obligations to the Company
or any Affiliate of the Company (except as set forth in Section 8.3 of the Note
Purchase and Guarantee Agreement) and (2) accepting any guaranty (other than the
guarantees contemplated by the Note Purchase and Guarantee Agreement and the
Credit Agreement) of, or any other security for, the Senior Secured Obligations
from the Company or any
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Affiliate of the Company, except any guaranty or security granted to the
Collateral Agent for the benefit of all Secured Parties; and
(c) refrain from exercising any rights or remedies under the Security
Documents which have or may have arisen or which may arise as a result of a
Default or Event of Default or otherwise;
provided, however, that nothing contained in subsections (a) through (c) above,
shall prevent any Secured Party from imposing a default rate of interest in
accordance with the Credit Agreement or the Note Purchase and Guarantee
Agreement, as applicable, or prevent a Secured Party from raising any defenses
in any action in which it has been made a party defendant or has been joined as
a third party, except that the Collateral Agent may, but shall not be obligated
to, direct and control any defense directly relating to the Collateral or any
one or more of the Security Documents, which shall be governed by the provisions
of this Agreement.
Section 2.2. Representations and Warranties. (a) Each of the Secured
Parties represents and warrants to the other parties hereto that:
(1) It (i) is either (x) a corporation duly organized, existing and
in good standing under the laws of the jurisdiction of its incorporation
or (y) a national banking association duly incorporated and existing under
the laws of the United States of America, and (ii) has all requisite power
(corporate or otherwise) to own its property and conduct its business as
now conducted and as presently contemplated.
(2) The execution, delivery and performance by such Secured Party of
this Agreement has been authorized by all necessary proceedings (corporate
or otherwise) and does not and will not contravene any provision of law,
its charter or by-laws or any amendment thereof, or of any indenture,
agreement, instrument or undertaking binding upon such Secured Party.
(3) The execution, delivery and performance by such Secured Party of
this Agreement will result in a valid and legally binding obligation of
such Secured Party enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent conveyance and similar laws affecting
creditors' rights generally, and general principles of equity (regardless
of whether the application of such principles is considered in a
proceeding in equity or at law).
(b) The Collateral Agent hereby represents and warrants that:
(1) The Collateral Agent is a national association duly organized,
validly existing, and in good standing under the laws of the United
States.
(2) The Collateral Agent has full power, authority and legal right
under the laws of the United States to execute, deliver, and perform this
Agreement and has taken all necessary action to authorize the execution,
delivery, and performance by it of this Agreement.
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(3) The execution, delivery and performance by the Collateral Agent
of this Agreement and the Security Documents to which it is a party will
not contravene any law, rule or regulation of the United States or any
United States government authority or agency regulating the Collateral
Agent's banking or trust powers or any judgment or order applicable to or
binding on the Collateral Agent and will not contravene or result in any
breach of, or constitute a default under, the Collateral Agent's articles
of association or by-laws or the provision of any indenture, mortgage,
contract or other agreement to which it is a party or by which it or any
of its properties is bound.
(4) The execution, delivery and performance by the Collateral Agent
of this Agreement and the Security Documents to which it is a party will
not require the authorization, consent, or approval of, the giving of
notice to, the filing or registration with, or the taking of any other
action in respect of, any governmental authority or agency.
(5) This Agreement and the Security Documents to which it is a party
have been duly executed and delivered by the Collateral Agent and
constitute the legal, valid, and binding agreements of the Collateral
Agent, enforceable in accordance with their respective terms, subject to
bankruptcy, insolvency, fraudulent conveyance and similar laws affecting
creditors' rights generally, and general principles of equity (regardless
of whether the application of such principles is considered in a
proceeding in equity or at law).
Section 2.3. Cooperation; Accountings. Each of the Secured Parties will,
upon the reasonable request of another Secured Party, from time to time execute
and deliver or cause to be executed and delivered such further instruments, and
do and cause to be done such further acts as may be necessary or proper to carry
out more effectively the provisions of this Agreement. The Secured Parties agree
to provide to each other upon reasonable request a statement of all payments
received in respect of Senior Secured Obligations.
Section 2.4. Termination of Credit Agreement, Note Purchase and Guarantee
Agreement or Additional Facilities. Upon final payment in full of all Senior
Secured Obligations owing to any Secured Party, and, in the case of any Lender,
after the date on which such Lender's ratable share of the Commitment has been
terminated and no Letters of Credit remain outstanding, such Secured Party shall
cease to be a party to this Agreement; provided, however, if all or any part of
any payments to such Secured Party are invalidated or set aside or required to
be repaid to any Person in any Bankruptcy Proceeding or otherwise, then this
Agreement shall be renewed as of such date and shall thereafter continue in full
force and effect to the extent of the Senior Secured Obligations so invalidated,
set aside or repaid.
Section 2.5. Additional Creditors. Subject to the restrictions of Section
8.1 of the Credit Agreement, Additional Creditors may, upon compliance with the
relevant provisions of the Note Purchase and Guarantee Agreement, the Credit
Agreement and any outstanding Additional Facility, become "Secured Parties"
hereunder by executing
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and delivering to each of the then existing Secured Parties (a) a copy of this
Agreement so executed and (b) a copy of the Additional Facility or Additional
Facilities to which such Person is a party. Accordingly, upon the execution and
delivery of any such copy of this Agreement by any such Person, such Person,
shall, upon delivery thereof to the then existing Secured Parties, thereafter
become a Secured Party for all purposes of this Agreement.
SECTION 3. APPOINTMENT AND AUTHORIZATION OF COLLATERAL AGENT.
(a) Each Secured Party hereby irrevocably designates and appoints Citibank
as the Collateral Agent of such Secured Party under this Agreement and the
Security Documents, and each Secured Party hereby irrevocably authorizes
Citibank as the Collateral Agent for such Secured Party to execute and enter
into each of the Security Documents and all other instruments relating to said
Security Documents and (i) to take action on its behalf and exercise such powers
as are expressly permitted hereunder and under the Security Documents and all
instruments relating hereto and thereto and (ii) to exercise such powers and
perform such duties as are, in each case, expressly delegated to the Collateral
Agent by the terms hereof and thereof together with such other powers as are
reasonably incidental hereto and thereto.
(b) Notwithstanding any provision to the contrary elsewhere in this
Agreement or the Security Documents, the Collateral Agent shall not have any
duties or responsibilities except those expressly set forth herein or therein or
any fiduciary relationship with any Secured Party, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any Security Document or otherwise exist against the
Collateral Agent.
SECTION 4. AGENCY PROVISIONS.
Section 4.1. Delegation of Duties. The Collateral Agent may exercise its
powers and execute any of its duties under this Agreement and the Security
Documents by or through employees, agents or attorneys-in-fact and shall be
entitled to take and to rely on advice of counsel concerning all matters
pertaining to such powers and duties. The Collateral Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care. The Collateral Agent may utilize the
services of such Persons as the Collateral Agent in its sole discretion may
determine, and all reasonable fees and expenses of such Persons shall be borne
by the Company.
Section 4.2. Exculpatory Provisions. Neither the Collateral Agent nor any
of the Collateral Agent's officers, directors, employees, agents,
attorneys-in-fact or Affiliates (or officers, directors, employees, agents or
attorneys-in-fact of such Affiliates) shall be (a) liable for any action taken
or omitted to be taken by it or such Person under or in connection with this
Agreement or any Security Document or any Collateral (except for its or such
Person's own gross negligence or willful misconduct), or (b) responsible in any
manner to any of the Secured Parties for any recitals, statements,
representations or warranties made by the Company or any officer thereof
contained in, or made or deemed
12
made in connection with, any Loan Document, Senior Note Document, Additional
Facility Document or Security Document or in any certificate, report, statement
or other document referred to or provided for in, or received by the Collateral
Agent under or in connection with, this Agreement or any Loan Document, Senior
Note Document, Additional Facility Document or Security Document, or for the due
execution, legality, value, validity, effectiveness, genuineness, enforceability
or sufficiency of the Loan Documents, the Senior Note Documents, the Additional
Facility Documents or the Security Documents or any other document or instrument
furnished pursuant thereto or for any failure of the Company to perform its
obligations thereunder. The Collateral Agent shall be under no obligation to the
Secured Parties to ascertain or to inquire as to the observance or performance
of any of the agreements contained in, statements made in, or conditions of, the
Loan Documents, the Senior Note Documents, the Additional Facility Documents or
the Security Documents or to inspect the property (including the books and
records) of the Company.
Section 4.3. Reliance by Collateral Agent The Collateral Agent shall be
entitled to rely, and shall be fully protected and shall incur no liability in
acting and relying, upon any writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation reasonably believed by it to
be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Company), independent accountants and other
experts selected by the Collateral Agent. Without limiting the generality of the
foregoing, the Collateral Agent may treat the payee of any Credit Agreement
Note, any Senior Secured Note or any Additional Facility Note as the registered
holder thereof until it receives notice or otherwise has actual knowledge that
such payee is no longer the registered holder of such Credit Agreement Note,
such Senior Secured Note or such Additional Facility Note. Notwithstanding
anything to the contrary contained herein or in any Security Document, the
Collateral Agent shall be fully justified in failing or refusing to take action
that is contrary to this Agreement, the Security Documents or applicable law or
to take any other action under this Agreement or the Security Documents
(including, without limitation, the exercise of any rights or remedies under, or
the entering into of any agreement amending, modifying, supplementing, waiving
any provision of, or the giving of consent pursuant to, any of the Security
Documents) unless it shall first receive instructions of the Required Secured
Parties as is contemplated by ss.5 hereof and it shall first be indemnified to
its reasonable satisfaction by the Secured Parties against any and all liability
and expense which may be incurred by it by reason of taking, continuing to take
or refraining from taking any such action. The Collateral Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this
Agreement and the Security Documents in accordance with the provisions of ss.5.5
hereof and in accordance with written instructions of the Required Secured
Parties pursuant to ss.5.3 hereof, and such instructions and any action taken or
failure to act pursuant thereto shall be binding upon all the Secured Parties
and all other holders from time to time of the Credit Agreement Notes, the
Senior Secured Notes and the Additional Facility Notes.
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Section 4.4. Knowledge or Notice of Default, Event of Default or Special
Event of Default. The Collateral Agent shall not be deemed to have actual,
constructive, direct or indirect knowledge or notice of the occurrence of any
Default, Event of Default or Special Event of Default unless and until the
Collateral Agent has received written notice from a Secured Party or the Company
referring to the Credit Agreement, the Note Purchase and Guarantee Agreement or
the Additional Facilities, describing such Default, Event of Default or Special
Event of Default, setting forth in reasonable detail the facts and circumstances
thereof and stating that the Collateral Agent may rely on such notice without
further inquiry; provided that if Citibank is the Collateral Agent hereunder,
the Collateral Agent shall be deemed to have actual knowledge and notice of the
occurrence of any Default or Event of Default (as defined in the Credit
Agreement) under the Credit Agreement if the Agent or the Collateral Agent has
actual knowledge of such Default or Event of Default or has declared an Event of
Default under the Credit Agreement. The Collateral Agent shall have no
obligation or duty prior to or after receiving any such notice to inquire
whether a Default, Event of Default or Special Event of Default has in fact
occurred and shall be entitled to rely, and shall be fully protected in so
relying, on any such notice furnished to it.
Section 4.5. Non-Reliance on Collateral Agent and Other Secured Parties.
Each Secured Party expressly acknowledges that, except as expressly set forth in
this Agreement, neither the Collateral Agent nor any of the Collateral Agent's
officers, directors, employees, agents, attorneys-in-fact or Affiliates (or
officers, directors, employees, agents or attorneys-in-fact of such Affiliates)
has made any representations or warranties to it and that no act by the
Collateral Agent hereinafter taken, including any review of the affairs of the
Company, shall be deemed to constitute any representation or warranty by the
Collateral Agent to any Secured Party. Each Secured Party represents that it
has, independently and without reliance upon the Collateral Agent or any other
Secured Party, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Company and made its own decision to enter into this Agreement, the Loan
Documents, the Senior Note Documents and the Additional Facilities. Each Secured
Party also represents that it will, independently and without reliance upon the
Collateral Agent or any other Secured Party, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
the Loan Documents, the Senior Note Documents, the Additional Facilities and the
Security Documents and this Agreement, and to make such investigation as it
deems necessary to inform itself as to the business, operations, property,
financial and other condition and credit-worthiness of the Company. Except for
notices, reports and other documents expressly required to be furnished to the
Secured Parties by the Collateral Agent hereunder, the Collateral Agent shall
not have any duty or responsibility to provide the Secured Parties with any
credit or other information concerning the business, operations, property,
financial and other condition or credit-worthiness of the Company which may come
into the possession of the Collateral Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
14
Section 4.6. Indemnification. The Secured Parties severally agree to
indemnify the Collateral Agent in its capacity as such (to the extent not
reimbursed by the Company and without limiting any obligation of the Company to
do so), ratably according to the Secured Parties' respective share of (a) the
aggregate outstanding principal amount of the Credit Agreement Notes plus the
unborrowed portion of the Commitment that would be permitted to be borrowed by
the Company under the provisions of the Credit Agreement at such time, and (b)
the aggregate outstanding principal amount of the Senior Secured Notes and (c)
the aggregate outstanding principal amount of the Additional Facility Notes,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Senior Secured Obligations) be imposed on,
incurred by or asserted against the Collateral Agent in any way relating or
arising out of any of the Loan Documents, the Senior Note Documents, the
Additional Facilities or the Security Documents or actions or omissions of the
Collateral Agent specifically required by this Agreement or permitted pursuant
to ss.5.3, ss.5.5 or ss.5.7 or specifically directed by written instructions of
the Required Secured Parties pursuant to ss.5.3 hereof (including, without
limitation, costs incurred in accordance with the provisions of ss.4.1);
provided that no Secured Party shall be liable for the payment of any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting solely from the Collateral
Agent's gross negligence or willful misconduct. The agreements in this ss.4.6
shall survive the payment of the Senior Secured Obligations.
Section 4.7. Collateral Agent in Its Individual Capacity. Citibank and its
Affiliates may make loans to and generally engage in any kind of business with
the Company as though such Person was not the Collateral Agent hereunder and
without any duty to account therefor to the Secured Parties. With respect to any
Credit Agreement Note issued to it and advances made by it under the Credit
Agreement, Citibank shall have the same rights and powers under this Agreement
as any Secured Party and may exercise the same as though it were not the
Collateral Agent, and the terms "Secured Party" and "Secured Parties" shall
include Citibank in its individual capacity.
Section 4.8. Successor Collateral Agent. (a) The Collateral Agent may
resign at any time upon sixty days' notice to the Secured Parties and the
Company and may be removed at any time, with or without cause, by the Required
Secured Parties by written notice delivered to the Company, the Collateral Agent
and the Secured Parties. If the Collateral Agent is also a Lender, then the
Noteholders may remove the Collateral Agent at any time upon a vote of the
holders of 66-2/3% or more of the aggregate principal amount of outstanding
Senior Secured Notes. If the Collateral Agent is also a Noteholder, then the
Lenders may remove the Collateral Agent at any time upon a vote of the holders
of 66-2/3% or more of the sum of (1) the outstanding principal amount of the
Credit Agreement Notes, and (2) the unborrowed portion of the Commitment that
would be permitted to be borrowed by the Company under the provisions of the
Credit Agreement on the date of determination. After any resignation or removal
hereunder of the Collateral Agent, the provisions of this ss.4 shall continue to
inure to its benefit as to any actions taken or omitted to be taken by it in
connection with its agency hereunder
15
while it was the Collateral Agent under this Agreement and it shall be entitled
to be paid promptly when due any amounts owing to it pursuant to ss.4.6.
(b) Upon receiving notice of any such resignation or removal, a successor
Collateral Agent shall be appointed by the Required Secured Parties; provided,
however, that such successor Collateral Agent shall be (i) a bank or trust
company having a combined capital and surplus of at least $500,000,000, subject
to supervision or examination by a federal or state banking authority; and (ii)
authorized under the laws of the jurisdiction of its incorporation or
organization to assume the functions of the Collateral Agent. If the appointment
of such successor shall not have become effective (as hereafter provided) within
such sixty day period after the Collateral Agent's resignation or upon removal
of the Collateral Agent, then the Collateral Agent may assign the Liens and its
duties hereunder and under the Security Documents to the Secured Parties, as
their interests may appear, and in such case all references herein to
"Collateral Agent" shall be deemed to refer to "Required Secured Parties." Any
Secured Party may petition a court of competent jurisdiction for the appointment
of a successor Collateral Agent. Such court shall, after such notice as it may
deem proper, appoint a successor Collateral Agent meeting the qualifications
specified in this ss.4.8(b). The Secured Parties hereby consent to such petition
and appointment so long as such criteria are met.
(c) The resignation or removal of a Collateral Agent shall become
effective upon the execution and delivery of such documents or instruments as
are necessary to transfer the rights and obligations of the Collateral Agent
under the Security Documents, including, without limitation, the delivery and
recordation of all amendments, instruments, mortgages, financing statements,
continuation statements and other documents necessary to maintain the perfection
of the security interests held by the Collateral Agent hereunder. Copies of each
such document or instrument shall be delivered to all Secured Parties. The
appointment of a successor Collateral Agent pursuant to this ss.4.8 shall become
effective upon the acceptance of the appointment as Collateral Agent hereunder
by a successor Collateral Agent. Upon such effective appointment, the successor
Collateral Agent shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Collateral Agent and the retiring
Collateral Agent shall be discharged from its rights, powers, privileges and
duties under this Agreement and the other Security Documents, but shall remain
liable for (subject to the terms of this ss. 4) its actions prior to and
including such date of discharge.
Section 4.9. Resignation of Existing Collateral Agent. The Existing
Collateral Agent hereby resigns as the Collateral Agent under the Initial
Intercreditor Agreement and is hereby released and discharged from its duties
and obligations as Collateral Agent thereunder as of the date hereof.
SECTION 5. ACTIONS BY THE COLLATERAL AGENT.
Section 5.1. Duties and Obligations. The duties and obligations of the
Collateral Agent are only those set forth in this Agreement and in the Security
Documents.
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Section 5.2. Notification of Default. If the Collateral Agent has been
notified in a writing conforming to the requirements of ss.4.4 by any Secured
Party that a Default, an Event of Default or a Special Event of Default has
occurred, the Collateral Agent shall furnish to the Secured Parties a copy of
such written notice and may, but is under no obligation to, furnish to the
Company a copy of the notice received by the Collateral Agent and a copy of the
Collateral Agent's notice to the Secured Parties. The failure of any Secured
Party having knowledge of the occurrence of a Default, an Event of Default or a
Special Event of Default to notify the Collateral Agent or any Secured Party of
such occurrence, however, does not constitute a waiver of such Default, Event of
Default or a Special Event of Default by the Secured Parties. Upon receipt of a
notice conforming to the requirements of ss.4.4 from a Secured Party of the
occurrence of a Default, an Event of Default or a Special Event of Default, the
Collateral Agent shall (in addition to the action required by the first sentence
of this ss.5.2) promptly (and in any event no later than three Business Days
after receipt of such notice) issue its Notice of Default to all Secured
Parties. Such Notice of Default shall indicate whether such Default or Event of
Default is a Special Event of Default. The Notice of Default may contain a
recommendation of actions to be taken by the Secured Parties and/or request
instructions from the Secured Parties and shall specify the date on which
responses are due in order to be timely within ss.5.4 hereof. If time is not of
the essence, the Collateral Agent shall deliver a duplicate Notice of Default to
those Secured Parties which have not responded in such timely manner.
Section 5.3. Exercise of Remedies. Except as otherwise provided in ss.5.5,
the Collateral Agent shall take only such actions and exercise only such
remedies under the Security Documents as are specifically directed in written
instructions delivered to the Collateral Agent and signed by the Required
Secured Parties. In the event that the Collateral Agent shall determine in good
faith that taking the actions specified in such instructions is contrary to law,
it may refrain (and shall be fully protected in so refraining) from taking such
action and shall immediately give notice of such fact to each of the Secured
Parties. In the event that instructions received by the Collateral Agent are in
its good faith judgment ambiguous or conflict with other instructions received
by the Collateral Agent, the Collateral Agent (a) shall promptly notify the
Secured Parties of such ambiguity or conflict and request clarifying
instructions, and (b) may either (1) delay taking any such action or exercising
any such remedy pending the receipt of such clarifying instructions (and shall
be fully protected in so delaying) or (2) take such actions as it is entitled
under ss.5.5. In the event the Collateral Agent does not comply with such
written instructions, the Collateral Agent may be removed pursuant to ss. 4.8
hereof or the Required Secured Parties shall be authorized to act on the
Collateral Agent's behalf.
Section 5.4. Instructions from Secured Parties. If any Secured Party does
not respond in a timely manner to any notice (including, without limitation, a
Notice of Default) from the Collateral Agent or request for instructions within
the time period specified by the Collateral Agent in such notice or request for
instructions (which shall be a minimum of five Business Days for each notice
delivered), such Secured Party shall be deemed to have given a negative response
to such notice or request. Any action properly
17
taken or not taken without the affirmative vote of a Secured Party or Secured
Parties hereunder shall nevertheless be binding on such Secured Party or Secured
Parties.
Section 5.5. Emergency Actions. If the Collateral Agent has asked the
Secured Parties for instruction and if the Required Secured Parties have not yet
responded to such request, the Collateral Agent shall be authorized to take, but
shall not be required to take and shall in no event have any liability for the
taking or the failure to take, such actions (other than any action described or
permitted under ss. 5.7 hereof) with regard to a Default, Event of Default or a
Special Event of Default which the Collateral Agent, in good faith, believes to
be reasonably required prior to the receipt of such instructions on an emergency
basis to promote and protect the interests of the Secured Parties and to
maximize both the value of the Collateral and the present value of the recovery
by the Secured Parties on the Senior Secured Obligations and shall give the
Secured Parties appropriate notice of such action; provided that once
instructions with respect to such request have been received by the Collateral
Agent from the Required Secured Parties, the actions of the Collateral Agent
shall be governed thereby and the Collateral Agent shall not take any further
action which would be contrary thereto .
Section 5.6. Changes to Security Documents. Any term of the Security
Documents may be amended, and the performance or observance by the parties to a
Security Document of any term of such Security Document may be waived (either
generally or in a particular instance and either retroactively or prospectively)
by the Collateral Agent only upon the written consent of the Required Secured
Parties; provided that no amendment to the Security Documents which directly or
indirectly narrows the description of the Collateral or the obligations being
secured thereby, changes the priority of payments to the Secured Parties or the
Collateral Agent under the Security Documents, releases any Person obligated
under the Security Documents or amends the definition of "Required Secured
Parties" may be made without the written consent of all of the Secured Parties.
Section 5.7. Release of Collateral.
(a) Unless a Default has occurred and is continuing, the Collateral Agent
may, without the approval of the Secured Parties as otherwise required by ss.5.3
hereof, release any Collateral under the Security Documents which is permitted
to be sold or disposed of by the Company pursuant to both the Credit Agreement
and the Note Purchase and Guarantee Agreement and execute and deliver such
releases as may be necessary to terminate of record the Secured Parties'
security interest in such Collateral. In determining whether any such release is
permitted, the Collateral Agent may rely upon instructions from the Required
Lenders (as defined in the Credit Agreement) as to the Credit Agreement or
Noteholders holding more than 50% of the outstanding principal amount of the
Senior Secured Notes as to the Note Purchase and Guarantee Agreement.
(b) The release of any Collateral (other than a release permitted by (a)
above) by the Collateral Agent shall be prohibited unless the Required Secured
Parties expressly consent in writing thereto and unless all of the terms
relating to and conditions precedent
18
to such release set forth in the Note Purchase and Guarantee Agreement and the
Credit Agreement have been satisfied in full.
Section 5.8. Other Actions. Except as set forth in ss.5.5 hereof, the
Collateral Agent shall only have the right to take such actions, or omit to take
such actions, hereunder and under the Security Documents which are (i)
specifically directed by the written instructions of the Required Secured
Parties delivered pursuant to ss.5.3 hereof or the terms of this Agreement or
(ii) actions the Collateral Agent deems necessary or appropriate to perfect or
continue the perfection of the Liens on the Collateral for the benefit of the
Secured Parties. Except as otherwise provided by applicable law, the Collateral
Agent shall have no duty as to any Collateral, the collection or protection of
the Collateral or any income thereon (including any duty to ascertain or take
action with respect to calls, conversions, exchanges, maturities, tenders or
other matters relative to any Collateral, whether or not the Collateral Agent
has or is deemed to have knowledge of such matters), nor as to the preservation
of rights against prior parties, nor as to the preservation of rights pertaining
to the Collateral beyond the safe custody of any Collateral in the Collateral
Agent's actual possession.
Section 5.9. Cooperation. To the extent that the exercise of the rights,
powers and remedies of the Collateral Agent in accordance with this Agreement
requires that any action be taken by any Secured Party, such Secured Party shall
take such action and cooperate with the Collateral Agent to ensure that the
rights, powers and remedies of all Secured Parties are exercised in full;
provided, however, that a Secured Party shall not be required to act to the
extent that it believes in good faith that such action would violate any
applicable law, rule, regulation or decree or would expose such Secured Party or
any other Secured Party to material liability.
Section 5.10. Distribution of Proceeds. All amounts owing with respect to
the Senior Secured Obligations shall be secured pro rata by the Collateral
without distinction as to whether some Senior Secured Obligations are then due
and payable and other Senior Secured Obligations are not then due and payable.
Upon any realization upon the Collateral, the Secured Parties agree that the
proceeds thereof shall be applied (a) first, to the amounts owing to the
Collateral Agent by the Company or the Secured Parties solely in its capacity as
Collateral Agent hereunder pursuant to this Agreement or the Security Documents;
(b) second, ratably to the payment of all amounts of interest (other than any
Make-Whole Amount) outstanding which constitute the Senior Secured Obligations
according to the aggregate amounts of such interest then owing to each Secured
Party; (c) third, ratably to all amounts of principal outstanding under the
Senior Secured Obligations according to the aggregate amounts of such principal
then owing to each Secured Party including the cash collateralization or payment
of obligations of the Company under the Credit Agreement relating to Letters of
Credit issued thereunder; (d) fourth, ratably to all other amounts then due to
the Secured Parties under the Credit Agreement, the Note Purchase and Guarantee
Agreement and the Additional Facilities (including fees, expenses, amounts
payable in respect of indemnification obligations and premiums, including
Make-Whole Amounts, if any and amounts owed to the Collateral Agent as Agent
under the Credit Agreement); and (e) fifth, the balance, if any, shall be
returned to the Company or such other Persons as are entitled thereto. Upon the
request
19
of the Collateral Agent prior to any distribution under this ss.5.10, each
Secured Party shall provide to the Collateral Agent certificates, in form and
substance reasonably satisfactory to the Collateral Agent, setting forth the
respective amounts referred to in clauses (b) through (d) above which each such
Secured Party believes it is entitled to receive.
Section 5.11. Senior Preferential Payments and Special Trust Account.
(a) After the receipt by each Secured Party of a Notice of Default
pursuant to ss.5.2 stating that a Special Event of Default has occurred, all
Senior Preferential Payments other than those payments received pursuant to
subsection (b) of this ss.5.11 shall be delivered to the Collateral Agent for
deposit into the Special Trust Account.
(b) If (i) such Special Event of Default is waived by the Lenders and the
Noteholders (other than the Special Event of Default described in clause (a) of
the definition thereof, as to which no such waiver is permitted) and if no other
Event of Default has occurred and is continuing, (ii) such Special Event of
Default is cured by the Company or by any amendment of the Credit Agreement or
the Note Purchase and Guarantee Agreement, as the case may be (in each case
subject to the consent of the requisite percentage of Lenders or Noteholders
required under such agreement to effect such amendment), and if no other Event
of Default has occurred and is continuing or (iii) any or all of the Senior
Secured Obligations have not been accelerated and the Required Secured Parties
have not instructed the Collateral Agent to foreclose on a substantial portion
of the Collateral, seek the appointment of a receiver, commence litigation
against the Company, liquidate the Collateral, commence a Bankruptcy Proceeding
against the Company, seize Collateral, or exercise other remedies of similar
character prior to the 180th day following such Special Event of Default, the
Collateral Agent thereupon shall return all amounts, together with their pro
rata share of any interest earned thereon, held in the Special Trust Account
representing payment of any Senior Secured Obligations to the Secured Party
initially entitled thereto, and no payments thereafter received by a Secured
Party shall constitute a Senior Preferential Payment by reason of such cured or
waived Special Event of Default. No payment returned to a Secured Party for
which such Secured Party has been obligated to make a deposit into the Special
Trust Account shall thereafter ever be characterized as a Senior Preferential
Payment.
(c) Each Secured Party agrees that upon the occurrence of a Special Event
of Default it shall (i) promptly notify the Collateral Agent of the receipt of
any Senior Preferential Payments, (ii) hold such amounts in trust for the
Secured Parties and act as agent of the Secured Parties during the time any such
amounts are held by it, and (iii) deliver promptly to the Collateral Agent such
amounts for deposit into the Special Trust Account as soon as practicable.
(d) If the Senior Secured Obligations have been accelerated or the
Required Secured Parties have instructed the Collateral Agent to foreclose on a
substantial portion of the Collateral, seek the appointment of a receiver,
commence litigation against the Company, liquidate the Collateral, commence a
Bankruptcy Proceeding against the Company, seize Collateral, or exercise other
remedies of similar character, then all funds,
20
together with interest earned thereon, held in the Special Trust Account and all
subsequent Senior Preferential Payments shall be applied in accordance with the
provisions of ss.5.10 above.
Section 5.12. Authorized Investments. Any and all funds held by the
Collateral Agent in its capacity as Collateral Agent, whether pursuant to any
provision of this Agreement or any of the Security Documents, shall to the
extent feasible within a reasonable time be invested by the Collateral Agent in
Cash Equivalent Investments. Prior to making such investment or to the extent it
is not feasible to invest such funds in Cash Equivalent Investments, the
Collateral Agent shall hold any such funds in an interest bearing account. Any
interest earned on such funds shall be disbursed to the Secured Parties in
accordance with ss.5.10 or ss.5.11, as applicable. The Collateral Agent shall
have no duty to place funds held and invested pursuant to this ss.5.12 in
investments which provide a maximum return. The Collateral Agent shall not be
responsible for any loss of any funds invested in accordance with this ss.5.12.
Section 5.13. Restoration of Obligations. For the purposes of determining
the amount of outstanding Senior Secured Obligations, if any Secured Party is
required to deposit any Senior Preferential Payment in the Special Trust
Account, then the obligations intended to be satisfied by such Senior
Preferential Payment shall be revived (as against the Borrower and the
Guarantors), as of the date of the deposit of such amount with the Collateral
Agent, in the amount of such Senior Preferential Payment and such obligation
shall continue in full force and effect (and bear interest from such deposit
date at the non-default rate as provided in the Senior Secured Notes, in the
Credit Agreement, or in the Additional Facility as the case may be) as if such
Secured Party had not received such payment. All such revived obligations shall
be included as Senior Secured Obligations for purposes of allocating any
payments under ss.5.10 and for purposes of determining the requisite amount of
the "Required Secured Parties". If any such revived obligation shall not be
allowed as a claim under the Bankruptcy Code due to the fact that the Senior
Preferential Payment has in fact been made by the Company, the Secured Parties
shall make such other equitable arrangements for the purchase and sale of
participations in the Senior Secured Obligations to effectuate the intent of
this ss.5.13.
Furthermore, any action taken by the Required Secured Parties during the
period from the date on which no Credit Agreement Notes, LOC Obligations or
Participation Interests are outstanding and on which no loans or drawings would
be permitted to be made to the Company under the provisions of the Credit
Agreement (a "Lender Paydown Date") to the date on which the Lenders make a
deposit of a Senior Preferential Payment into the Special Trust Account shall
have no force and effect as of the date of such deposit. A Lender Paydown Date
shall not be deemed to have occurred for purposes of this Agreement unless the
Agent shall have provided written notice of the occurrence of such Lender
Paydown Date to the Collateral Agent and the Secured Parties pursuant to the
terms of ss.7.7 hereof within 5 Business Days of such occurrence.
The Collateral Agent shall not, during the 120-day period following any
Lender Paydown Date and receipt of notice as provided above (a "Risk Period"),
authorize or permit a release of any Collateral under the Security Documents
other than (i) releases of
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Collateral permitted to be sold or disposed of by the Company pursuant to the
Credit Agreement and the Note Purchase and Guarantee Agreement (each as in
effect on the date hereof or as amended prior to the Lender Paydown Date) and
(ii) releases of Collateral required to be delivered under the Security
Documents in connection with a payment in full of the Senior Secured
Obligations. If the Collateral or any portion thereof shall be foreclosed upon
or liquidated during a Risk Period, all proceeds of the Collateral shall be held
by the Collateral Agent in trust for the benefit of the Secured Parties until
the end of such Risk Period, at which time such proceeds shall be applied in
accordance with the provisions of ss.5.10 above.
Section 5.14. Bankruptcy, Preferences, etc. If any payment to a Secured
Party is subsequently invalidated, declared to be fraudulent or preferential or
set aside and is required to be repaid to a trustee, receiver or any other party
under any bankruptcy law, state or Federal law, common law or equitable cause,
and such Secured Party (the "Affected Secured Party") has previously made a
deposit in respect of such payment into the Special Trust Account pursuant to
ss.5.11 (the "Returned Deposit"), then the Collateral Agent shall distribute to
the Affected Secured Party proceeds from the Special Trust Account in an amount
equal to the Returned Deposit or so much thereof as is affected by such events
and if, due to previous disbursements to the Secured Parties pursuant to
ss.5.11(d), the proceeds in the Special Trust Account are insufficient for such
purpose, then each other Secured Party shall pay to the Affected Secured Party
upon demand an amount equal to a ratable portion (determined with reference to
the amount of the Returned Deposit received by each Secured Party) of such
Returned Deposit, to the end that all Secured Parties (including the Affected
Secured Party) share ratably in the Returned Deposit.
SECTION 6. BANKRUPTCY PROCEEDINGS.
The following provisions shall apply during any Bankruptcy Proceeding of
the Company:
(a) The Collateral Agent shall represent all Secured Parties in connection
with all matters directly relating to the Collateral, including without
limitation, use, sale or lease of Collateral, use of cash collateral, relief
from the automatic stay and adequate protection. The Collateral Agent shall act
on the instructions of the Required Secured Parties; provided that such
instructions by the Required Secured Parties shall not treat any Secured Party
differently with respect to rights in the Collateral from any other Secured
Party; and provided further that if action is required prior to the time such
instructions are received or if the Required Secured Parties fail to give
instructions with respect to any matter, the Collateral Agent shall be
authorized to act, or refrain from acting, in accordance with and pursuant to
the terms and provisions of ss.5.5 hereof.
(b) Each Secured Party shall be free to act independently on any issue not
directly relating to the Collateral, including without limitation, matters
relating to appointment of a trustee, conversion of a case, filing of claims,
and plans of reorganization. Each Secured Party shall give prior notice to the
Collateral Agent of any action hereunder to
22
the extent that such notice is possible. If such prior notice is not given, such
Secured Party shall give prompt notice following any action taken hereunder.
SECTION 7. MISCELLANEOUS
Section 7.1. Secured Parties; Other Collateral. The Secured Parties agree
that all of the provisions of this Agreement shall apply to any and all
properties, assets and rights of the Company in which the Collateral Agent at
any time acquires a security interest or Lien pursuant to the Security
Documents, the Credit Agreement, the Additional Facilities or the Note Purchase
and Guarantee Agreement, including, without limitation, real property or rights
in, on or over real property, notwithstanding any provision to the contrary in
any mortgage, leasehold mortgage or other document purporting to grant or
perfect any lien in favor of the Secured Parties or any of them or the
Collateral Agent for the benefit of the Secured Parties.
Section 7.2. Marshalling. The Collateral Agent shall not be required to
marshal any present or future security for (including, without limitation, the
Collateral), or guaranties of, the Senior Secured Obligations or any of them, or
to resort to such security or guaranties in any particular order; and all of
each of such Person's rights in respect of such securities and guaranties shall
be cumulative and in addition to all other rights, however existing or arising.
To the extent that they lawfully may, the Secured Parties hereby agree that they
will not invoke any law relating to the marshalling of collateral which might
cause delay in or impede the enforcement of the Secured Parties' rights under
the Security Documents or under any other instrument evidencing any of the
Senior Secured Obligations or under which any of the Senior Secured Obligations
is outstanding or by which any of the Senior Secured Obligations is secured or
guaranteed.
Section 7.3. Consents, Amendments, Waivers. Except as provided in
ss.5.7(b), all amendments, waivers or consents with respect to any provision of
this Agreement, the Security Agreement or the Pledge Agreement shall be
effective only if the same shall be in writing and signed by the Required
Secured Parties (or, with respect to any amendment, waiver or consent pertaining
to a release of Collateral (other than as set forth in ss.5.7(a)) or a release
of any obligor under a Security Document, such higher percentage of the Lenders,
the Noteholders and/or the Additional Creditors as may be required under the
applicable provisions of the Loan Documents, the Note Purchase and Guarantee
Agreement or Additional Credit Documents, as the case may be) and the Company.
Section 7.4. Parties in Interest. All terms of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto, including, without limitation, any
future holder of the Credit Agreement Notes, of the Senior Secured Notes or of
the Additional Facility Notes; provided that no Secured Party may assign or
transfer its rights hereunder or under the Security Documents without such
assignees or transferees agreeing, by executing an instrument in form and
substance reasonably acceptable to the Collateral Agent, to be bound by the
terms of this Agreement as though named herein.
23
Section 7.5. Counterparts. This Agreement and any amendment hereof may be
executed in several counterparts and by each party on a separate counterpart,
each of which when so executed and delivered shall be an original, but all of
which together shall constitute one instrument. In proving this Agreement, it
shall not be necessary to produce or account for more than one such counterpart
signed by the party against whom enforcement is sought.
Section 7.6. Termination. Upon the later of the payment in full of the
Senior Secured Obligations in accordance with their terms, the termination of
the Commitment and the date on which no Letters of Credit remain outstanding,
this Agreement shall terminate.
Section 7.7. Notices. Except as otherwise expressly provided herein, all
notices, consents and waivers and other communications made or required to be
given pursuant to this Agreement shall be in writing and shall be delivered by
hand, mailed by United States registered or certified first-class mail, postage
prepaid, or sent by overnight courier or by telecopy, telegraph or telex and
confirmed by letter, addressed as follows:
If to the Collateral Agent at: Citibank, N.A.
390 Greenwich Street
New York, New York 10013
Attn: Larry Farley
Telephone: 212-723-6614
Telecopy: 212-723-8547
or at such other address for notice as the Collateral Agent shall last have
furnished in writing to the Person giving the notice; and
If to any Noteholder, at: Such address as set forth on Schedule I hereto
If to any Lender at: Such address as set forth in the Credit
Agreement
24
If to the Agent, at: Citibank, N.A.
390 Greenwich Street
New York, New York 10013
Attn: Larry Farley
Telephone: 212-723-6614
Telecopy: 212-723-8547
If to the Company or any
Guarantor, at: ResortQuest International, Inc.
530 Oak Court Drive, Suite 360
Memphis, Tennessee 38117
Attn: J. Mitchell Collins,
Chief Financial Officer
Telephone: 901-818-5445
Telecopy: 901-683-1102
or at such other address for notice as such Secured Party or the Collateral
Agent shall last have furnished in writing to the Person giving such notice.
Any such notice, consent, waiver or demand shall be deemed to have been
duly given or made and to have become effective (a) if delivered by hand to a
responsible officer of the party to which it is directed, at time of the receipt
thereof by such officer, (b) if sent by registered or certified first class
mail, postage prepaid, on the earlier of (i) the time of receipt thereof if a
Business Day or, if not a Business Day, the next succeeding Business Day, or
(ii) five Business Days after the posting thereof, and (c) if sent by telecopy,
telex or cable, at the time of receipt thereof if a Business Day or, if not a
Business Day, the next succeeding Business Day. Notices given by telecopy shall
be promptly confirmed in writing sent by courier.
Section 7.8. Establishing Outstanding Amount of Senior Secured
Obligations. In order to establish what constitutes the Required Secured
Parties, the Collateral Agent may request from time to time, and the Secured
Parties agree to provide, certificates setting forth the amount of Senior
Secured Obligations held or represented by each Secured Party, which
certificates the Collateral Agent shall be entitled to rely upon.
Section 7.9. Governing Law. This Agreement shall be deemed to be a
contract under seal and shall for all purposes be governed by and construed in
accordance with the laws of the State of New York.
[Balance of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused these presents to be
duly executed as an instrument by their authorized representatives as of the
date first written above.
LENDERS: CITIBANK, N.A.,
as Collateral Agent and as Agent
By:_____________________________________
Name:
Title:
S-1
BANK OF AMERICA, N.A.,
as a Lender and as Existing
Collateral Agent
By:_____________________________________
Name:
Title:
S-2
CREDIT LYONNAIS NEW YORK
BRANCH, as a Lender
By:_____________________________________
Name:
Title:
S-3
CITICORP NORTH AMERICA, INC.,
as a Lender
By:_____________________________________
Name:
Title:
S-4
UNION PLANTERS BANK,
as a Lender
By:_____________________________________
Name:
Title:
S-5
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION, as Noteholder
By:_____________________________________
Name:
Title:
S-6
PPM AMERICA, INC., as attorney in fact,
on behalf of Jackson National Life
Insurance Company, as Noteholder
By:_____________________________________
Name:
Title:
S-7
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY, as Noteholder
By: CIGNA INVESTMENTS, INC.
(authorized agent)
By:__________________________________
Name:
Title:
S-8
LIFE INSURANCE COMPANY OF NORTH
AMERICA, as Noteholder
By: CIGNA INVESTMENTS, INC.
(authorized agent)
By:__________________________________
Name:
Title:
S-9
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY, as Noteholder
By:_____________________________________
Name:
Title:
S-10
CM LIFE INSURANCE COMPANY, as
Noteholder
By:_____________________________________
Name:
Title:
S-11
UNITED OF OMAHA LIFE INSURANCE
COMPANY, as Noteholder
By:_____________________________________
Name:
Title:
S-12
EXECUTION BY ADDITIONAL CREDITORS
The undersigned hereby acknowledges and agrees to the foregoing Agreement
and executes and delivers this Agreement and agrees to become a party thereto
with all the rights, benefits and obligations of a Secured Party (as defined in
the Agreement) all as of the date hereof.
The undersigned have entered into the following facility with the Company:
[insert description of Funded Debt facility of the Company].
Dated: _______________
[ADDITIONAL CREDITORS]
By: _________________________________
Name:
Title:
AC-1
Acknowledgment
The undersigned hereby acknowledges and agrees to the terms of the
foregoing Agreement.
RESORTQUEST INTERNATIONAL, INC.
By: ____________________________________
Name:
Title:
Ack-i