Exhibit 2.19
Execution
Version
INTERCREDITOR AND LIEN SUBORDINATION
AGREEMENT
among
WELLS FARGO FOOTHILL,
INC. ,
as Agent,
THE BANK OF NEW YORK TRUST
COMPANY, N.A. ,
as Collateral
Agent,
155 EAST TROPICANA, LLC
and
155 EAST TROPICANA FINANCE
CORP.,
as Borrowers
Dated as of March 29, 2005
INTERCREDITOR AND LIEN SUBORDINATION
AGREEMENT
THIS INTERCREDITOR AND LIEN SUBORDINATION
AGREEMENT dated as of March 29, 2005 (this “
Agreement ”) is made by and among WELLS FARGO
FOOTHILL, INC., in its capacity as the arranger and administrative
agent (in such capacity, together with it successors and assigns
(if any) in such capacity, the “ Original Agent
”) under and pursuant to the Loan Agreement
(as hereinafter defined), THE BANK OF NEW YORK TRUST COMPANY,
N.A. (“ BNY ”), solely in its capacity as
collateral agent under the Indenture Loan Documents (as hereinafter
defined) (in such capacity, the “ Collateral Agent
”), 155 EAST TROPICANA, LLC, a Nevada limited liability
company (“ Tropicana ”), and 155 EAST TROPICANA
FINANCE CORP., a Nevada corporation (“ Tropicana
Finance ”; Tropicana and Tropicana and Finance, are
referred to hereinafter each individually as a “
Borrower ,” and individually and collectively, jointly
and severally, as the “ Borrowers ”).
R E
C I T A L S:
A.
Borrowers, Collateral Agent, and BNY, in its capacity as Trustee
(in such capacity, the “ Trustee ”), have
entered into an Indenture, dated as of March 29, 2005
(the “ Indenture ”), pursuant to which the
Borrowers incurred indebtedness for certain notes (such notes,
together with all other notes issued after the date hereof and
exchange notes issued in exchange therefore, the “
Notes ”) in an aggregate principal amount at maturity
of $130,000,000. The repayment of the Indenture Secured
Obligations (as hereinafter defined) is secured by security
interests in and liens on the assets and properties described in
(i) the Senior Secured Note Security Agreement, dated as of
the date hereof (the “ Indenture Security Agreement
”), made by the Borrowers in favor of the Collateral Agent
for the benefit of the Collateral Agent, the Trustee, and the
Noteholders, (ii) the Pledge Agreement, dated as of the date
hereof (the “ Indenture Pledge Agreement ”),
made by Florida Hooters LLC, a Nevada limited liability company
(“ Florida Hooters ”), and EW Common LLC, a
Nevada limited liability company (“ EW Common
”), in favor of the Collateral Agent for the benefit of the
Collateral Agent, the Trustee, and the Noteholders, (iii) the
Guarantee and Pledge Agreement, dated as of the date hereof (the
“ E&W Note Guarantee and Pledge ”), made by
Eastern & Western Hotel Corporation, a Nevada corporation
(“ E&W ”), in favor of the Collateral Agent
for the benefit of the Collateral Agent, the Trustee, and the
Noteholders, and (iv) certain real property mortgages,
including the (y) Deed of Trust, Security Agreement and Fixture
Filing with Assignment of Rents dated as of the date hereof, made
by Tropicana to Lawyers Title of Nevada, Inc., as trustee for
the benefit of Collateral Agent, as collateral agent for the
“Holders” (as defined in the Indenture), and (z)
Leasehold Deed of Trust, Security Agreement and Fixture Filing with
Assignment of Rents dated as of the date hereof, made by E&W to
Lawyers Title of Nevada, Inc., as trustee for the benefit of
Collateral Agent, as collateral agent for the Holders, together
with such other mortgages, deeds of trust, assignments and other
real property Liens as may be made as of the date hereof and from
time to time
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hereafter (each, an “ Indenture
Mortgage ” and, together with the Indenture, the
Indenture Security Agreement, the Indenture Pledge Agreement, the
E&W Guarantee and Pledge, all Control Agreements (as defined in
the Indenture Security Agreement for the benefit of the Collateral
Agent, the Trustee, the Noteholders and, as set forth in
Section 3.02 hereof, the Agent and the Lenders), and
all other collateral or security documents in favor of Collateral
Agent or the Trustee now or hereafter executed and delivered in
connection with the Indenture or the Indenture Security Agreement,
the “ Indenture Agreements ”), in each case, by
a Borrower, Florida Hooters, EW Common or E&W in favor of the
Collateral Agent for the benefit of the Collateral Agent, the
Trustee, and the Noteholders.
B.
Borrowers and the Original Agent have entered into a Credit
Agreement dated as of March 29, 2005 (the “
Original Loan Agreement ”), pursuant to which the
Original Agent and the lenders from time to time party thereto (the
“ Original Lenders ”) agreed, upon the terms and
conditions stated therein, to make loans and advances to and to
issue letters of credit on account of the Borrower and the
Guarantors up to the principal amount of $15,000,000, together
with the fees, interest, expenses and other obligations due under
the Original Loan Agreement. The repayment of the Loan
Agreement Secured Obligations (as hereinafter defined) is secured
by security interests in and liens on the assets and properties
described in (i) the Security Agreement, dated as of the date
hereof (the “ Loan Agreement Security Agreement
”), made by the Borrowers in favor of the Agent for the
benefit of the Lenders, (ii) the Parent Pledge Agreement,
dated as of the date hereof (the “ Loan Agreement Pledge
Agreement ”), made by Florida Hooters and EW Common, in
favor of the Agent for the Lenders, (iii) the Guarantee and
Pledge Agreement, dated as of the date hereof (the “
E&W Loan Guarantee and Pledge ”), made by E&W
in favor of the Agent for the benefit of the Agent and the Lenders,
and (iv) certain real property mortgages, including the (y)
Deed of Trust, Fixture Filing with Assignment of Rents and Leases,
and Security Agreement dated as of the date hereof, made by
Tropicana to Lawyers Title of Nevada, Inc., as trustee for the
benefit of Agent (as defined herein), as agent and arranger under
the Original Loan Agreement, and (z) Leasehold Deed of Trust,
Fixture Filing with Assignment of Rents and Leases, and Security
Agreement dated as of the date hereof, made by E&W to Lawyers
Title of Nevada, Inc., as trustee for the benefit of Agent, as
agent and arranger under the Credit Agreement, together with such
other mortgages, deeds of trust, assignments and other real
property Liens as may be made as of the date hereof and from time
to time hereafter (each, a “ Loan Agreement Mortgage
” and, together with the Loan Agreement, Loan Agreement
Security Agreement, the Loan Agreement Parent Pledge Agreement, all
Control Agreements (as defined in the Loan Agreement), and all
other collateral or security documents in favor of Agent now or
hereafter executed and delivered in connection with the Original
Loan Agreement or the Loan Agreement Security Agreement, the
“ Loan Agreements ”), in each case, by a
Borrower Florida Hooters, EW Common or E&W in favor of the
Agent for the benefit of the Lenders.
C.
One of the conditions of the Original Loan Agreement is that the
priority of the security interests in and liens on the Lender
Priority Collateral to secure the Loan
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Agreement Secured Obligations be senior to the
security interests in and liens on the Lender Priority Collateral
to secure the Indenture Secured Obligations (as hereinafter
defined), in the manner and to the extent provided in this
Agreement. One of the conditions of the Indenture is
that the priority of the security interests and liens on the
Indenture Priority Collateral to secure the Indenture Secured
Obligations be senior to the security interests in and liens on the
Indenture Priority Collateral to secure the Loan Agreement Secured
Obligations and that the Interest Reserve Account (as hereinafter
defined) be security for the Indenture Secured Obligations but not
for the Loan Agreement Secured Obligations.
D.
The Agent and the Collateral Agent desire to enter into this
Agreement concerning the respective rights of the Agent and the
Collateral Agent with respect to the priority of their respective
security interests in and liens on the Collateral.
E.
The terms of the Indenture permit the Borrowers to enter into the
Original Loan Documents, subject to compliance with certain
conditions, and in connection therewith authorize and direct the
Collateral Agent to enter into an intercreditor agreement
substantially in the form of this Agreement.
F.
In order to induce the Agent and Lenders to extend credit to the
Borrowers and for purposes of certain conditions precedent and
covenants of the Original Loan Agreement, the Agent and the
Collateral Agent hereby agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01
Terms Defined Above and in the Recitals . As used in
this Agreement, the following terms shall have the respective
meanings indicated in the opening paragraph hereof and in the above
Recitals:
“Agreement”
“Borrowers”
“Collateral Agent”
“E&W”
“E&W
Loan Guarantee and Pledge”
“E&W
Note Guarantee and Pledge”
“EW
Common”
“Florida
Hooters”
“Indenture”
“Indenture Agreements”
“Indenture
Mortgage”
“Indenture
Pledge Agreement”
“Indenture
Security Agreement”
“Loan
Agreement Mortgage”
“Loan
Agreement Pledge Agreement”
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“Loan
Agreement Security Agreement”
“Loan
Agreements”
“Notes”
“Original
Agent”
“Original Lenders”
“Original Loan
Agreement”
“Original Loan
Documents”
“Tropicana”
“Tropicana
Finance”
“Trustee”
Section 1.02
Loan Agreement Definitions . All capitalized terms
which are used but not defined herein shall have the same meaning
as in the Original Loan Agreement, as in effect on the date
hereof.
Section 1.03
Other Definitions . As used in this Agreement, the
following terms shall have the meanings set forth below:
“ Agent ” means the Original
Agent, together with its successors, assigns, transferees, and any
Person that has a similar title (such as “Agent” or
“Administrative Agent”) under any Loan
Agreement.
“ Bankruptcy Code ” means
title 11 of the United States Code, as in effect from time to
time.
“ Capital Stock ” means
(a) in the case of a corporation, corporate stock, (b) in
the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however
designated) of corporate stock, (c) in the case of a
partnership or limited liability company, partnership or membership
interests (whether general or limited) and (d) any other
interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of
property of, the issuing Person.
“ Cash Collateral ” means
any Collateral consisting of cash or cash equivalents, any security
entitlement (as defined in the New York Commercial Code) and any
financial assets (as defined in the New York Commercial
Code).
“ Casino
Lease ” means that certain “Amended and Restated
Casino Lease” by and between the Borrower and E&W dated
as of March 9, 2005, as the same may be amended from time to
time in accordance to the extent permitted under the Loan Agreement
and the Indenture.
“ Closing
Date ” means March 29, 2005.
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“ Collateral ” means all
assets and properties and all interests in assets or properties now
owned or hereafter acquired by any Borrower, any Guarantor or any
other Person (including the Cash Collateral deposited in Account
No. 11553005 maintained at Wells Fargo Brokerage
Services, LLC by E&W pursuant to the Casino Lease) in or upon
which a Lien is granted or purported to be granted under any of the
Loan Documents or the Indenture Loan Documents or to secure the
Loan Agreement Secured Obligations or the Indenture Secured
Obligations and all products and proceeds of any of the foregoing,
provided that the term “Collateral” shall not include
the Indenture Exclusive Collateral.
“ Control Collateral ” means
any Collateral consisting of a certificated security (as defined in
the New York Commercial Code), investment property (as defined in
the New York Commercial Code), a deposit account (as defined in the
New York Commercial Code and any other Collateral as to which a
Lien may be perfected through possession or control by the secured
party, or any agent therefor.
“ Default Notice ” has the
meaning set forth in Section 2.03 .
“ DIP Financing ” has the
meaning set forth in Section 6.01 .
“ Discharge of Loan Agreement Secured
Obligations ” means payment in full in cash of the Loan
Agreement Secured Obligations (other than Loan Agreement Secured
Obligations consisting of contingent indemnification obligations
under the Lender Loan Documents) up to (but not in excess of) the
Maximum Priority Debt Amount including, with respect to amounts
available to be drawn under outstanding letters of credit issued
thereunder (or indemnities issued pursuant thereto in respect of
outstanding letters of credit), delivery of cash collateral or
backstop letters of credit in respect thereof in compliance with
the terms of the Loan Agreement, in each case, after or
concurrently with termination of all commitments to extend credit
thereunder.
“ Equity Interests ” means
Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible
into, or exchangeable for, Capital Stock).
“
Guarantor ” means any Person that guarantees or
pledges Collateral to secure the Loan Agreement Secured Obligations
or the Indenture Secured Obligations, including E&W.
“
Indenture Exclusive Collateral ” means the Cash
Collateral maintained in the Interest Reserve Account as of the
Closing Date, together with interest and earnings
thereon.
“ Indenture Loan Documents ”
means the Indenture, the Notes, the Indenture Mortgages, the
Indenture Agreements, the Notes, the Guarantees (as defined in the
Indenture) of the Notes, the Registration Rights Agreement (as
defined in the
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Indenture) and such other agreements,
instruments and certificates as defined or referred to in the
Indenture.
“
Indenture Priority Collateral ” means the Cash
Collateral maintained in the Renovation Reserve Account as of the
Closing Date, together with interest and earnings thereon; provided
that it is understood and agreed that such Cash Collateral is
intended to be utilized in the renovation of the real and personal
property constituting Lender Priority Collateral and once so
utilized and withdrawn from the Renovation Reserve Account, whether
before or after the commencement of an Insolvency Proceeding, shall
constitute Lender Priority Collateral.
“ Indenture Secured Obligations
” means all indebtedness represented by the Notes, together
with interest, premiums, fees, costs and expenses in respect
thereof (including, without limitation, attorneys fees and
disbursements and including interest accrued after the initiation
of any Insolvency Proceeding, whether or not allowed or allowable
in any Insolvency Proceeding), and all other Obligations (as such
term is defined in the Indenture) under any of the Indenture Loan
Documents.
“ Insolvency Proceeding ”
means any proceeding commenced by or against any Person under any
provision of the Bankruptcy Code or under any other state or
federal bankruptcy or insolvency law, assignments for the benefit
of creditors, formal or informal moratoria, compositions,
extensions generally with creditors, or proceedings seeking
reorganization, arrangement, or other similar relief.
“
Interest Reserve Account ” means that certain Account
No. 171097 maintained at The Bank of New York Trust Company,
N.A.
“
Lease ” and “ Leases ” means,
individually and collectively, that certain Amended and Restated
Hotel Lease and that certain Amended and Restated Casino Lease,
each by and between the Borrower and E&W and each dated as of
March 9, 2005, as either may be amended from time to time with
the written consent of the Agent and the Collateral
Agent.
“ Lender Loan Documents ”
means any Loan Agreement, the “Loan Documents” as
defined in the Original Loan Agreement, the collateral documents
and instruments executed and delivered in connection therewith or
in connection with any other Loan Agreement hereunder, and such
other agreements, instruments and certificates as defined in a Loan
Agreement.
“ Lender
Priority Collateral ” means all Collateral other than the
Indenture Exclusive Collateral and the Indenture Priority
Collateral.
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“ Lenders ” means the
Original Lenders, together with all successors, assigns,
transferees, participants, replacement or refinancing lenders, of
the Original Lenders, including any Person designated as a Lender
under any Loan Agreement.
“ Lien ” means any interest
in an asset securing an obligation owed to, or a claim by, any
Person other than the owner of the asset, irrespective of whether
(a) such interest is based on the common law, statute, or
contract, (b) such interest is recorded or perfected, and
(c) such interest is contingent upon the occurrence of some
future event or events or the existence of some future circumstance
or circumstances. Without limiting the generality of the
foregoing, the term “Lien” includes the lien or
security interest arising from a mortgage, deed of trust,
encumbrance, pledge, hypothecation, assignment, deposit
arrangement, security agreement, conditional sale or trust receipt,
or from a lease, consignment, or bailment for security purposes and
also includes reservations, exceptions, encroachments, easements,
rights-of-way, covenants, conditions, restrictions, leases, and
other title exceptions and encumbrances affecting Real
Property.
“ Lien Priority ” means with
respect to any Lien of the Agent or the Collateral Agent in the
Collateral, the order of priority of such Lien as specified in
Section 2.01 .
“ Loan Agreement ” means the
Original Loan Agreement as amended, restated, modified, renewed,
refunded, replaced, or refinanced in whole or in part from time to
time, including any agreement extending the maturity of,
consolidating, otherwise restructuring (including adding
Subsidiaries or affiliates of any Borrower or any other Persons as
parties thereto) or refinancing all or any portion of the
Obligations or Commitments as those terms are defined in the
Original Loan Agreement (or in any other agreement that itself is a
Loan Agreement hereunder) and whether by the same or any other
agent, lender, or group of lenders and whether or not increasing
the amount of indebtedness that may be incurred
thereunder.
“ Loan Agreement Secured
Obligations ” means all Obligations and all other amounts
owing or due under the terms of the Loan Agreement and the other
Lender Loan Documents, including any and all amounts payable under
or in respect of the Lender Loan Documents, as amended, restated,
modified, renewed, refunded, replaced, or refinanced in whole or in
part from time to time, including principal, premium, interest,
fees, attorneys’ fees, costs, charges, expenses,
reimbursement obligations, any obligation to post cash collateral
in respect of letters of credit or indemnities in respect thereof,
indemnities, guarantees, and all other amounts payable thereunder
or in respect thereof (including, in each case, all amounts
accruing on or after the commencement of any Insolvency Proceeding
relating to any Borrower, any other Person irrespective of whether
a claim for all or any portion of such amounts is allowable or
allowed in any Insolvency Proceeding).
“ Loan Documents ” means the
Lender Loan Documents and the Indenture Loan Documents.
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“ Maximum Priority Debt Amount
” means, as of any date of determination, (a) the
principal amount (including the undrawn amount of Letters of
Credit) of Loan Agreement Secured Obligations as of such date up
to, but not in excess of, $15,000,000, plus
(b) any premium, interest, fees, attorneys’ fees, costs,
charges, expenses and indemnities, owed under the Loan Agreement or
the other Lender Loan Documents or in respect of the Loan Agreement
Secured Obligations and including, for each amount specified
in clauses (a) and (b), all amounts accruing on or
after the commencement of any Insolvency Proceeding relating to any
Borrower or any other Person irrespective of whether a claim for
all or any portion of such amount is allowable or allowed in any
Insolvency Proceeding.
“ Noteholders ” means each
of the holders of the Notes.
“ Original Loan Agreement ”
shall have the meaning assigned to such term in the recitals to
this Agreement.
“ Party ” means Agent and
Collateral Agent.
“ Person ” means any natural
person, corporation, limited liability company, limited
partnership, general partnership, limited liability partnership,
joint venture, trust, land trust, business trust, or other
organization, irrespective of whether such organization is a legal
entity, and shall include a government and any agency or political
subdivision thereof.
“ Proceeds ” means
(i) all “proceeds” as defined in Article 9 of
the New York Commercial Code with respect to the Collateral, and
(ii) whatever is recoverable or recovered when Collateral is
sold, exchanged, collected, or disposed of, whether voluntarily or
involuntarily.
“ Recovery ” has the meaning
set forth in Section 5.03 .
“
Renovation Reserve Account ” means that certain
Account No. 171098 maintained at The Bank of New York Trust
Company, N.A., subject to a control agreement in favor of the
Collateral Agent for the benefit of the Noteholders, the Agent and
the Lenders as their respective interests may appear.
“ Standstill Notice ” means
a written notice from or on behalf of (a) the Agent to the
Collateral Agent regarding the Lender Priority Collateral stating
that an Event of Default has occurred under the Loan Agreement and
stating that such written notice is a “Standstill
Notice,” or (b) the Collateral Agent to the Agent
regarding the Indenture Priority Collateral stating that an Event
of Default has occurred under the Indenture and stating that such
written notice is a “Standstill Notice.”
“ Standstill Period ” has
the meaning set forth in Section 2.03 .
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Rules of Construction .
Unless the context of this Agreement clearly requires otherwise,
references to the plural include the singular, references to the
singular include the plural, the term “including” is
not limiting, and the term “or” has, except where
otherwise indicated, the inclusive meaning represented by the
phrase “and/or.” The words “hereof,”
“herein,” “hereby,”
“hereunder,” and similar terms in this Agreement refer
to this Agreement as a whole and not to any particular provision of
this Agreement. Article, section, subsection, clause,
schedule, and exhibit references herein are to this Agreement
unless otherwise specified. Any reference in this Agreement
to any agreement, instrument, or document shall include all
alterations, amendments, changes, extensions, modifications,
renewals, replacements, substitutions, joinders, and supplements
thereto and thereof, as applicable (subject to any restrictions on
such alterations, amendments, changes, extensions, modifications,
renewals, replacements, substitutions, joinders, and supplements
set forth herein). Any reference herein to any Person shall
be construed to include such Person’s successors and
assigns.
ARTICLE II.
LIEN PRIORITY
Section 2.01
Agreement to Subordinate . Notwithstanding the date,
time, method, manner or order of grant, attachment, or perfection
of any Liens granted to the Collateral Agent, the Trustee, or the
Noteholders in respect of all or any portion of the Collateral or
of any Liens granted to the Agent or any Lender in respect of all
or any portion of the Collateral, or the order or time of filing or
recordation of any document or instrument for perfecting the Liens
in favor of Agent or any Lender or the Collateral Agent (or the
Trustee or any Noteholder) in any Collateral or any provision of
the Uniform Commercial Code, any other applicable law, the
Indenture, the Loan Documents or any other circumstance
whatsoever:
(a)
the Collateral Agent, on behalf of itself, the Trustee, and the
Noteholders, hereby agrees that (i) any Lien in respect of all
or any portion of the Lender Priority Collateral now or hereafter
held by or on behalf of the Collateral Agent, the Trustee, or any
Noteholder that secures all or any portion of the Indenture Secured
Obligations, shall in all respects be junior and subordinate to all
Liens granted to the Agent or any Lender in the Lender Priority
Collateral to secure all or any portion of the Loan Agreement
Secured Obligations up to (but not in excess of) the Maximum
Priority Debt Amount, and (ii) any Lien in respect of all or
any portion of the Lender Priority Collateral now or hereafter held
by or on behalf of the Agent that secures all or any portion of the
Loan Agreement Secured Obligations in excess of the Maximum
Priority Debt Amount, shall in all respects be junior and
subordinate to all Liens granted to the Collateral Agent, the
Trustee or any Noteholder in the Lender Priority Collateral to
secure all or any portion of the Indenture Secured Obligations,
and
(b)
the Collateral Agent, on behalf of itself, the Trustee, and the
Noteholders, hereby agrees that (i) any Lien in respect of all
or any portion of the Lender
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Priority Collateral now or hereafter held by or
on behalf of the Agent or any Lender that secures all or any
portion of the Loan Agreement Secured Obligations up to (but not in
excess of) the Maximum Priority Debt Amount, shall in all respects
be senior and prior to all Liens granted to the Collateral Agent
(or the Trustee or any Noteholder) in the Lender Priority
Collateral to secure all or any portion of the Indenture Secured
Obligations, and (ii) any Lien in respect of all or any
portion of the Lender Priority Collateral now or hereafter held by
or on behalf of the Collateral Agent, the Trustee, or any
Noteholder that secures all or any portion of the Indenture Secured
Obligations, shall in all respects be senior and prior to all Liens
granted to the Agent in the Lender Priority Collateral to secure
all or any portion of the Loan Agreement Secured Obligations in
excess of the Maximum Priority Debt Amount,
(c)
the Agent, on behalf of itself and the Lenders, hereby agrees that
(i) any Lien in respect of all or any portion of the Indenture
Priority Collateral now or hereafter held by or on behalf of the
Agent or any Lender that secures all or any portion of the Loan
Agreement Secured Obligations, shall in all respects be junior and
subordinate to all Liens granted to the Collateral Agent in the
Indenture Priority Collateral to secure all or any portion of the
Indenture Secured Obligations, and (ii) any Lien in respect of
all or any portion of the Indenture Priority Collateral now or
hereafter held by or on behalf of the Collateral Agent that secures
all or any portion of the Indenture Secured Obligations, shall in
all respects be senior and prior to all Liens granted to the Agent
in the Indenture Priority Collateral to secure all or any portion
of the Loan Agreement Secured Obligations, and
(d)
the Agent, on behalf of itself and the Lenders, hereby agrees that
the Indenture Exclusive Collateral does not and shall not secure
any Loan Agreement Secured Obligations.
The
Collateral Agent, for and on behalf of itself, the Trustee and the
Noteholders, acknowledges and agrees that, concurrently herewith,
the Agent and the Lenders have been granted Liens upon all of the
Collateral in which the Collateral Agent has been granted Liens
(other than the Indenture Exclusive Collateral) and the Collateral
Agent hereby consents thereto. The Agent, for and on behalf
of itself and the Lenders, acknowledges and agrees that the
Collateral Agent, for the benefit of itself, the Trustee, and the
Noteholders, has been granted Liens upon all of the Collateral in
which the Agent has been granted Liens and, in addition, the
Indenture Exclusive Collateral and the Agent hereby consents
thereto. The subordination of Liens in the Lender Priority
Collateral (up to (but not in excess of) the Maximum Priority Debt
Amount) by the Collateral Agent, on behalf of itself, the Trustee,
and the Noteholders in favor of the Agent herein shall not be
deemed to subordinate the Collateral Agent’s Liens to the
Liens of any other Person. The subordination of Liens (in
excess of the Maximum Priority Debt Amount) and otherwise in the
Indenture Priority Collateral in favor of the Collateral Agent, for
the benefit of itself, the Trustee and the Noteholders herein shall
not be deemed to subordinate such Agent’s Liens to the Liens
of any other Person.
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Section 2.02
Waiver of Right to Contest Liens . The Collateral
Agent agrees, on behalf of itself, the Trustee, and the
Noteholders, that it and they shall not (and hereby waives, on
behalf of itself, the Trustee and the Noteholders any right to)
take any action to contest or challenge (or assist or support any
other Person in contesting or challenging), directly or indirectly,
whether or not in any proceeding (including in any Insolvency
Proceeding), the validity, priority, enforceability, or perfection
of the Liens of the Agent or Lenders in respect of the
Collateral. Prior to Discharge of the Loan Agreement Secured
Obligations, the Collateral Agent, on behalf of itself, the
Trustee, and the Noteholders, agrees that none of the Collateral
Agent, the Trustee, or the Noteholders will take any action that
would hinder any exercise of remedies undertaken by the Agent or
Lenders under the Lender Loan Documents with respect to the Lender
Priority Collateral, including any public or private sale, lease,
exchange, transfer, or other disposition of the Lender Priority
Collateral, whether by foreclosure or otherwise. Prior to
Discharge of the Loan Agreement Secured Obligations, the Collateral
Agent, for itself, the Trustee, and on behalf of the Noteholders,
hereby waives any and all rights it, the Trustee, or the
Noteholders may have as a junior lien creditor or otherwise to
contest, protest, object to, interfere with the manner in which the
Agent or Lenders seek to enforce the Liens in any portion of the
Lender Priority Collateral (it being understood and agreed that the
terms of this Agreement shall govern with respect to such
Collateral even if any portion of the Liens securing the Loan
Agreement Secured Obligations are avoided, disallowed, set aside,
or otherwise invalidated in any judicial proceeding or
otherwise). The Agent, for and on behalf of itself and the
Lenders, agrees that it shall not (and hereby waives any right to)
take any action to contest or challenge (or assist or support any
other Person in contesting or challenging), directly or indirectly,
whether or not in any proceeding (including in any Insolvency
Proceeding), the validity, priority, enforceability, or perfection
of the Liens of the Collateral Agent in respect of the
Collateral. Following the Discharge of Loan Agreement Secured
Obligations or solely with respect to the Indenture Priority
Collateral at any time prior thereto, the Agent, for and on behalf
of itself and the Lenders, agrees that it will not take any action
that would hinder any exercise of remedies undertaken by the
Collateral Agent, the Trustee, or any Noteholder under the
Indenture Loan Documents, including any public or private sale,
lease, exchange, transfer, or other disposition of the Collateral,
whether by foreclosure or otherwise. Following the Discharge
of Loan Agreement Secured Obligations or solely with respect to the
Indenture Priority Collateral at any time prior thereto, the Agent
hereby waives any and all rights it may have as a junior lien
creditor or otherwise to contest, protest, object to, interfere
with the manner in which the Collateral Agent, the Trustee or any
Noteholder seeks to enforce the Liens in any portion of the
Collateral (it being understood and agreed that the terms of this
Agreement shall govern with respect to such Collateral even if any
portion of the Liens securing the Indenture Secured Obligations are
avoided, disallowed, set aside, or otherwise invalidated in any
judicial proceeding or otherwise).
Section 2.03
Remedies Standstill . At any time after the occurrence
and during the continuation of an Event of Default under any of the
Loan Documents, the Agent may
11
send a Standstill Notice to the Collateral
Agent with respect to the Lender Priority Collateral or the
Collateral Agent may send a Standstill Notice to the Agent with
respect to the Indenture Priority Collateral.
(a)
The Collateral Agent, on behalf of itself, the Trustee, and the
Noteholders, agrees that from and after the date of its receipt of
any Standstill Notice, none of the Collateral Agent, the Trustee,
or any Noteholder will exercise any of its rights or remedies in
respect of the collection on, set off against, marshalling of, or
foreclosure on the Lender Priority Collateral or any other right
relating to any Lender Priority Collateral (including the exercise
of any voting rights relating to any Capital Stock constituting
Collateral) under the Loan Documents, applicable law or otherwise
as a secured creditor and will not take or receive any Lender
Priority Collateral in connection with the exercise of any such
right or remedy (including recoupment or set-off), whether under
the Indenture Loan Documents, applicable law, in an Insolvency
Proceeding or otherwise unless and until (a) the Agent has
expressly waived or acknowledged the cure of the applicable Event
of Default in writing or the Discharge of the Loan Agreement
Secured Obligations shall have occurred, or (b) 90 days
shall have elapsed from the date of the Collateral Agent’s
receipt of such Standstill Notice, except with respect to any
Lender Priority Collateral which the Agent is pursuing its rights
or remedies as a secured creditor to effect the collection,
foreclosure, sale, or other realization upon or disposition of such
Lender Priority Collateral. From and after the earlier to
occur of (i) the Collateral Agent’s receipt of such
waiver or cure notice, or (ii) the elapsing of
such 90 day period, any of the Collateral Agent, the
Trustee, or any Noteholder may commence to exercise any of its
rights and remedies as a secured creditor under the Loan Documents,
applicable law or otherwise (subject to the provisions of this
Agreement, including Section 4.02 hereof and except
with respect to any Lender Priority
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