INTERCREDITOR AGREEMENT

 

                                                                    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

 

 

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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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<PAGE>

 

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  

 

 

 

                                       6

<PAGE>

 

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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<PAGE>

 

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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<PAGE>

 

     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