EX-10.60 73 dex1060.htm INTERCREDITOR AGREEMENT EXECUTION VERSION INTERCREDITOR AGREEMENT
Exhibit 10.60
EXECUTION VERSION
Intercreditor Agreement (this “Agreement”) dated as of November 6, 2009, among JPMORGAN CHASE BANK, N.A., as Collateral Agent (in such capacity, with its successors and assigns, the “First Priority Representative”) for the First Priority Secured Parties (as defined below), DIAMOND LANE PRODUCTIONS, INC., as agent (in such capacity, with its successors and assigns, the “Second Priority Representative”) for the Second Priority Secured Parties (as defined below), and UNIVERSAL CITY DEVELOPMENT PARTNERS, LTD., a Florida limited partnership (the “Borrower”).
WHEREAS, the First Priority Lenders under the Existing First Priority Agreement have agreed to permit the grant of such junior security interests on the terms and conditions of this Intercreditor Agreement;
The following terms, as used herein, have the following meanings:
“Bankruptcy Code” means the United States Bankruptcy Code (11 U.S.C. §101 et seq.), as amended from time to time.
“Cash Management Obligations” means any obligations of the Borrower in respect of treasury management arrangements, depositary or other cash management services.
“Common Collateral” means all assets that are both First Priority Collateral and Second Priority Collateral.
“Comparable Second Lien Security Document” means, in relation to any Common Collateral subject to any First Priority Security Document, that Second Priority Security Document that creates a security interest in the same Common Collateral.
“Enforcement Action” means, with respect to the First Priority Obligations or the Second Priority Obligations, any demand for payment or acceleration thereof, the exercise of any rights and remedies with respect to any Common Collateral securing such obligations or the commencement or prosecution of enforcement of any of the rights and remedies under, as applicable, the First Priority Documents or the Second Priority Documents, or applicable law, including without limitation the exercise of any rights of set-off or recoupment, and the exercise of any rights or remedies of a secured creditor under the Uniform Commercial Code of any applicable jurisdiction or under the Bankruptcy Code.
“Existing First Priority Agreement” has the meaning set forth in the first WHEREAS clause of this Agreement.
“First Priority Agreement” means (i) the Existing First Priority Agreement and (ii) any other credit agreement, loan agreement, note agreement, promissory note, indenture or other agreement or instrument evidencing or governing the terms of any indebtedness or other financial accommodation that has been incurred to extend, replace, refinance or refund in whole or in part the indebtedness and other obligations outstanding under the Existing First Priority Agreement or any other agreement or instrument referred to in this clause (ii) unless such agreement or instrument expressly provides that it is not intended to be and is not a First Priority Agreement hereunder. Any reference to the First Priority Agreement hereunder shall be deemed a reference to any First Priority Agreement then extant.
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“First Priority Collateral” means all assets, whether now owned or hereafter acquired by the Borrower or any other Loan Party, in which a Lien is granted or purported to be granted to any First Priority Secured Party as security for any First Priority Obligation.
“First Priority Documents” means the First Priority Agreement, each First Priority Security Document and all other documents related to the First Priority Obligations.
“First Priority Lenders” means the “Lenders” as defined in the First Priority Agreement, or any Persons that are designated under the First Priority Agreement as the “First Priority Lenders” for purposes of this Agreement.
“First Priority Obligations” means (i) all principal of and interest (including without limitation any Post-Petition Interest) and premium (if any) on all loans made pursuant to the First Priority Agreement, (ii) all reimbursement obligations (if any) and interest thereon (including without limitation any Post-Petition Interest) with respect to any letter of credit or similar instruments issued pursuant to the First Priority Agreement, (iii) all Hedging Obligations secured (or purported to be secured) pursuant to the First Priority Security Documents, (iv) all Cash Management Obligations secured (or purported to be secured) pursuant to the First Priority Security Documents, and (v) all fees, expenses and other amounts payable from time to time pursuant to the First Priority Documents, in each of the foregoing cases whether or not allowed or allowable against any Loan Party or its estate in an Insolvency Proceeding. To the extent any payment with respect to any First Priority Obligation (whether by or on behalf of any Loan Party, as proceeds of security, enforcement of any right of setoff or otherwise) is declared to be a fraudulent conveyance or a preference in any respect, set aside or required to be paid to a debtor in possession, any Second Priority Secured Party, receiver or similar Person, then the obligation or part thereof originally intended to be satisfied shall, for the purposes of this Agreement and the rights and obligations of the First Priority Secured Parties and the Second Priority Secured Parties, be deemed to be reinstated and outstanding as if such payment had not occurred.
“First Priority Obligations Payment Date” means the first date on which (i) the First Priority Obligations (other than contingent reimbursement and indemnification obligations for which no claim for payment has been asserted by the Person entitled thereto) have been indefeasibly paid in cash in full (or cash collateralized or defeased in accordance with the terms of the First Priority Documents), (ii) all commitments to extend credit under the First Priority Documents have been terminated, (iii) there are no outstanding letters of credit or similar instruments issued under the First Priority Documents (other than such as have been cash collateralized or defeased in accordance with the terms of the First
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Priority Security Documents), and (iv) the First Priority Representative has delivered a written notice to the Second Priority Representative stating that the events described in clauses (i), (ii) and (iii) have occurred to the satisfaction of the First Priority Secured Parties.
“First Priority Representative” has the meaning set forth in the introductory paragraph hereof.
“First Priority Secured Parties” means the holders of the First Priority Obligations.
“First Priority Security Documents” means the “Collateral Documents” as defined in the First Priority Agreement.
“Florida Project” has the meaning set forth in the Second Priority Agreement as in effect on the date hereof.
“Hedging Obligations” means all obligations of the Borrower in respect of any rate swap transaction, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other similar transaction (including any option with respect to any of the foregoing transactions) or any combination of the foregoing transactions.
“Incremental Obligations” has the meaning set forth in Section 9.3(c).
“Insolvency Proceeding” means any proceeding in respect of bankruptcy, insolvency, winding up, receivership, dissolution or assignment for the benefit of creditors, in each of the foregoing events whether under the Bankruptcy Code or any similar federal, state or foreign bankruptcy, insolvency, reorganization, receivership or similar law.
“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, deed to secure debt, lien, pledge, hypothecation, assignment, encumbrance, charge or security interest in, on or of such asset, and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.
“Loan Party” means the Borrower and each direct or indirect affiliate or shareholder (or equivalent) of the Borrower or any of its affiliates that is now or hereafter becomes a party to any First Priority Document.
“Person” means any person, individual, sole proprietorship, partnership, joint venture, corporation, limited liability company, unincorporated organization, association, institution, entity, party, including any government and any political subdivision, agency or instrumentality thereof.
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“Post-Petition Interest” means any interest, fees, expenses or other amount that accrues or would have accrued after the commencement of any Insolvency Proceeding, whether or not allowed or allowable in any such Insolvency Proceeding.
“Second Priority Agreement” has the meaning set forth in the second WHEREAS clause of this Agreement.
“Second Priority Collateral” means all assets, whether now owned or hereafter acquired by the Borrower, in which a Lien is granted or purported to be granted to any Second Priority Secured Party as security for any Second Priority Obligation.
“Second Priority Documents” means the Second Priority Agreement and each Second Priority Security Document.
“Second Priority Obligations” means (i) all amounts payable by the Borrower under the Second Priority Agreement solely in respect of the Florida Project, (ii) all fees, expenses and other amounts payable from time to time pursuant to the Second Priority Security Documents and (iii) all amounts owed under any modifications, renewals or extensions of any of the foregoing obligations, and in each case whether or not allowed or allowable in an Insolvency Proceeding. To the extent any payment with respect to any Second Priority Obligation (whether by or on behalf of the Borrower, as proceeds of security, enforcement of any right of setoff or otherwise) is declared to be a fraudulent conveyance or a preference in any respect, set aside or required to be paid to a debtor in possession, any First Priority Secured Party, receiver or similar Person, then the obligation or part thereof originally intended to be satisfied shall, for the purposes of this Agreement and the rights and obligations of the First Priority Secured Parties and the Second Priority Secured Parties, be deemed to be reinstated and outstanding as if such payment had not occurred.
“Second Priority Representative” has the meaning set forth in the introductory paragraph hereof.
“Second Priority Secured Parties” means the Second Priority Representative and any holders of the Second Priority Obligations.
“Second Priority Security Documents” means, collectively, all documents pursuant to which the Borrower grants any Lien to secure any of the Second Priority Obligations.
“Secured Parties” means the First Priority Secured Parties and the Second Priority Secured Parties.
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“Senior Debt Limit” means an amount equal to the greater of (i) $975,000,000 and (ii) the product of 3.75 times the EBITDA of the Borrower for the most recent four-quarter period for which financial statements are available (such amount to be determined at the time of incurrence of any term indebtedness or at the time of establishing or increasing any commitments to extend revolving credit or at the time of incurring any Incremental Obligations, as the case may be, and in each case that would constitute First Priority Obligations or Incremental Obligations, with “EBITDA” being as defined in and calculated pursuant to the relevant provisions of the First Priority Agreement).
“Senior Maturity Date” means the Maturity Date (as defined in the First Priority Agreement).
“Standstill Period” has the meaning set forth in Section 3.2(vi).
“Subject Property” has the meaning set forth in Section 2.4(a).
(b) No First Priority Secured Party or Second Priority Secured Party shall object to or contest, or support any other Person in contesting or objecting to, in any proceeding (including without limitation, any Insolvency Proceeding), the validity, extent, perfection, priority or enforceability of any Lien granted to or for the benefit of the other in conformity with this Agreement. Notwithstanding any failure by any First Priority Secured Party or Second Priority Secured Party to perfect its security interests in the Common Collateral or any avoidance, invalidation or subordination by any third party or court of competent jurisdiction
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of the security interests in the Common Collateral granted to the First Priority Secured Parties or the Second Priority Secured Parties, the priority and rights as between the First Priority Secured Parties and the Second Priority Secured Parties with respect to the Common Collateral shall be as set forth herein.
(b) The Second Priority Representative agrees on behalf of itself and the other Second Priority Secured Parties that all mortgages, deeds of trust, deeds and similar instruments and any amendments or modifications thereof (collectively, “mortgages”) now or thereafter filed against real property in favor of or for the benefit of the Second Priority Representative shall be in form satisfactory to the First Priority Representative and shall contain the following notation: “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, N.A., as Collateral Agent, and its successors and assigns, in such property, in accordance with the provisions of the Intercreditor Agreement dated as of November 6, 2009 among JPMorgan Chase Bank, N.A., as Collateral Agent for the First Priority Secured Parties (as defined therein), Diamond Lane Productions, Inc., as agent for the Second Priority Secured Parties (as defined therein) and Universal City Development Partners, Ltd., as amended from time to time.”
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and real property of the Borrower included in the Florida Project (“Subject Property”) which is also subject to the first-priority Lien of the First Priority Representative under the First Priority Documents. If any Second Priority Secured Party shall (nonetheless and in breach hereof) acquire or hold any Lien on any assets of any Loan Party securing any Second Priority Obligation which assets are not also subject to the first-priority Lien of the First Priority Representative under the First Priority Documents, then the Second Priority Representative (or the relevant Second Priority Secured Party) shall, without the need for any further consent of any other Second Priority Secured Party and notwithstanding anything to the contrary in any other Second Priority Document (i) be deemed to hold and have held such lien for the benefit of the First Priority Representative as security for the First Priority Obligations and shall assign such lien to the First Priority Representative (in which case the Second Priority Representative may retain a junior and subordinated lien on such assets subject to the terms hereof) or (ii) if so requested by the First Priority Representative, release such lien.
(b) The parties hereto agree that, so long as the First Priority Obligations Payment Date has not occurred, the Borrower shall not grant or permit any additional Liens on any Subject Property to secure any First Priority Obligations unless it concurrently therewith grants a Lien on such Subject Property to secure the Second Priority Obligations, with each such Lien to be subject to the provisions of this Agreement; provided that the foregoing shall not apply with respect to any Subject Property as to which the Borrower is prohibited by law or contract from granting a junior or subordinated Lien thereon to the Second Priority Representative.
2.5 Limitation on Priority Liens. The Borrower covenants and agrees that:
(a) the Liens securing the Second Priority Obligations shall be junior in priority only to Liens that (i) secure First Priority Obligations, (ii) secure Incremental Obligations, (iii) that are permitted by the First Priority Documents and senior to the Liens securing the First Priority Obligations or (iv) that have priority by operation of law; and
(b) it will not incur any Incremental Obligations or increase the amount available to be borrowed under the First Priority Agreement if as a consequence the sum of the aggregate principal amount of First Priority Obligations plus the aggregate principal amount of Incremental Obligations (assuming for this purpose the full utilization of any revolving commitment included therein) would exceed the Senior Debt Limit.
Section 3. Enforcement Rights.
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commenced by or against any Loan Party, the First Priority Secured Parties shall have the exclusive right to take and continue any Enforcement Action with respect to the Common Collateral, without any consultation with or consent of any Second Priority Secured Party, provided that, notwithstanding the foregoing, (i) in any Insolvency Proceeding, any Second Priority Secured Party may file a proof of claim or statement of interest with respect to Second Priority Obligations; (ii) the Second Priority Representative may take any action to preserve or protect the validity and enforceability of the liens on the Second Priority Collateral, provided that no such action is, or could reasonably be expected to be, (A) adverse to the Liens or the rights of the First Priority Representative or any other First Priority Secured Party to exercise remedies in respect thereof or (B) otherwise inconsistent with the terms of this Agreement, including the automatic release of Liens provided in Section 4.2; (iii) the Second Priority Secured Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Second Priority Secured Parties, including any claims secured by the Second Priority Collateral or otherwise make any arguments or file any motions pertaining to the Second Priority Obligations, in each case, to the extent not inconsistent with the terms of this Agreement; and (iv) subject to Section 3.2, the Second Priority Representative and the other Second Priority Secured Parties may enforce any of their rights and exercise any of their remedies with respect to the Second Priority Collateral after the termination of the Standstill Period (the actions described in this proviso being referred to herein as the “Second Priority Permitted Actions”). Except for the Second Priority Permitted Actions, unless and until the First Lien Obligation Payment Date has occurred, the sole right of the Second Priority Representative and the other Second Priority Secured Parties with respect to the Collateral shall be to receive a share of the proceeds of the Second Priority Collateral, if any, after the First Priority Obligations Payment Date has occurred and in accordance with the Second Priority Documents and applicable law.
(b) Upon the occurrence and during the continuance of a default or an event of default under the First Priority Documents, the First Priority Representative and the other First Priority Secured Parties may take and continue any Enforcement Action with respect to the First Priority Obligations and the Common Collateral in such order and manner as they may determine in their sole discretion.
(i) they will not take or cause to be taken any action, the purpose or effect of which is to make any Lien in respect of any Second Priority Obligation pari passu with or senior to, or to give any Second Priority Secured Party any preference or priority relative to, the Liens with respect to the First Priority Obligations or the First Priority Secured Parties with respect to any of the Common Collateral;
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(ii) they will not oppose, object to, interfere with, hinder or delay, in any manner, whether by judicial proceedings (including without limitation the filing of an Insolvency Proceeding) or otherwise, any foreclosure, sale, lease, exchange, transfer or other disposition of the Common Collateral by the First Priority Representative or any other First Priority Secured Party or any other Enforcement Action taken by or on behalf of the First Priority Representative or any other First Priority Secured Party;
(iii) they have no right to (x) direct either the First Priority Representative or any other First Priority Secured Party to exercise any right, remedy or power with respect to the Common Collateral or pursuant to the First Priority Security Documents or (y) consent or object to the exercise by the First Priority Representative or any other First Priority Secured Party of any right, remedy or power with respect to the Common Collateral or pursuant to the First Priority Collateral Documents or to the timing or manner in which any such right is exercised or not exercised (or, to the extent they may have any such right described in this clause (iii), whether as a junior lien creditor or otherwise, they hereby irrevocably waive such right);
(iv) they will not institute any suit or other proceeding or assert in any suit, Insolvency Proceeding or other proceeding any claim against either First Priority Representative or any other First Priority Secured Party seeking damages from or other relief by way of specific performance, instructions or otherwise, with respect to, and none of the First Priority Representatives nor any other First Priority Secured Party shall be liable for, any action taken or omitted to be taken by the First Priority Representative or any other First Priority Secured Party with respect to the Common Collateral or pursuant to the First Priority Documents;
(v) they will not make any judicial or nonjudicial claim or demand or commence any judicial or non-judicial proceedings against any Loan Party or any of its subsidiaries or affiliates under or with respect to any Second Priority Security Document seeking payment or damages from or other relief by way of specific performance, instructions or otherwise under or with respect to any Second Priority Security Document (other than filing a proof of claim) or exercise any right, remedy or power under or with respect to, or otherwise take any action to enforce, other than filing a proof of claim, any Second Priority Security Document;
(vi) they will not commence judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or
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similar official appointed for or over, attempt any action to take possession of any Common Collateral, exercise any right, remedy or power with respect to, or otherwise take any action to enforce their interest in or realize upon, the Common Collateral or pursuant to the Second Priority Security Documents; provided that the Second Priority Secured Parties may exercise the rights, remedies and powers described in this paragraph (vi) after a period of 180 days shall have elapsed since the later of (x) the date on which the Second Priority Representative has delivered to the First Priority Representative written notice of default by the Borrower in payment of Second Priority Obligations beyond any applicable grace or cure period and (y) the date on which an “Event of Default” under and as defined in the First Priority Agreement shall have occurred which is then continuing (the “Standstill Period”); provided further, however, that notwithstanding the expiration of the Standstill Period or anything herein to the contrary, in no event shall the Second Priority Representative or any other Second Priority Secured Party enforce or exercise any rights or remedies with respect to any Common Collateral, or commence, join with any person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the First Priority Representative or any other First Priority Secured Party shall in good faith have commenced, and shall in good faith be diligently pursuing (or shall be subject to the automatic stay or any other stay in any Insolvency Proceeding which bars the commencement and pursuit thereof), the enforcement or exercise of any rights or remedies with respect to the Common Collateral or any such action or proceeding; and
(vii) they will not seek, and hereby waive any right, to have the Common Collateral or any part thereof marshaled upon any foreclosure or other disposition of the Common Collateral.
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Secured Party shall enforce its rights or remedies in violation of the terms of this Agreement, the Borrower shall not be entitled to use such violation as a defense to any action by any First Priority Secured Party or Second Priority Secured Party, nor to assert such violation as a counterclaim or basis for set off or recoupment against any First Priority Secured Party or Second Priority Secured Party.
(b) Should any Second Priority Secured Party, contrary to this Agreement, in any way take, attempt to or threaten to take any action with respect to the Common Collateral (including, without limitation, any attempt to realize upon or enforce any remedy with respect to this Agreement), or fail to take any action required by this Agreement, any First Priority Secured Party (in its or their own name or in the name of the Borrower) or the Borrower may obtain relief against such Second Priority Secured Party by injunction, specific performance and/or other appropriate equitable relief, it being understood and agreed by the Second Priority Representative on behalf of each Second Priority Secured Party that (i) the First Priority Secured Parties’ damages from its actions may at that time be difficult to ascertain and may be irreparable, and (ii) each Second Priority Secured Party waives any defense that the Borrower and/or the First Priority Secured Parties cannot demonstrate damage and/or be made whole by the awarding of damages.
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Second Priority Documents. Until the occurrence of the First Priority Obligations Payment Date, any Common Collateral, including without limitation any such Common Collateral constituting proceeds, that may be received by any Second Priority Secured Party in violation of this Agreement shall be segregated and held in trust and promptly paid over to the First Priority Representative, for the benefit of the First Priority Secured Parties, in the same form as received, with any necessary endorsements, and each Second Priority Secured Party hereby authorizes the First Priority Representative to make any such endorsements as agent for the Second Priority Representative (which authorization, being coupled with an interest, is irrevocable). In the event of incurrence of any Incremental Obligations, the foregoing priorities are subject to modification in connection therewith as contemplated by Section 9.3(c).
(b) The Second Priority Representative shall promptly execute and deliver such documents and instruments and shall take such further actions as the First Priority Representative shall reasonably request to evidence any release or subordination of, or consent related to, the Second Priority Lien described in paragraph (a). The Second Priority Representative hereby appoints the First Priority Representative and any officer or duly authorized person of the First Priority Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Second Priority Representative and in the name of the Second Priority Representative or in the First Priority Representative’s own name, from time to time, in the First Priority Representative’s sole discretion, for the purposes of carrying out the terms of this paragraph, to take any and all appropriate action and
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to file, record, execute and deliver any and all documents and instruments as may be necessary or desirable to accomplish the purposes of this paragraph, including, without limitation, any financing statements, recordings, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable).
(b) Until the First Priority Obligations Payment Date has occurred, the First Priority Representative will have the sole and exclusive right (i) to be named as additional insured and loss payee under any insurance policies maintained from time to time by any Loan Party; (ii) to adjust or settle any insurance policy or claim covering the Common Collateral in the event of any loss thereunder and (iii) to approve any award granted in any condemnation or similar proceeding affecting the Common Collateral.
Section 5. Insolvency Proceedings.
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deemed to have consented to, will raise no objection to, nor support any other Person objecting to, the sale, use or lease of such cash or other collateral or to such DIP Financing, (ii) will not request or accept any form of adequate protection or any other relief in connection with the sale, use or lease of such cash or other collateral or such DIP Financing except as set forth in paragraph 5.4 below, (iii) will subordinate (and will be deemed hereunder to have subordinated) the Second Priority Liens (x) to such DIP Financing (and all obligations related thereto) to the extent the First Priority Liens are subordinated thereto or pari passu therewith (and such subordination will not alter in any manner the terms of this Agreement), (y) to any adequate protection provided to the First Priority Secured Parties and (z) to any “carve-out” for professional and United States Trustee fees agreed to by the First Priority Representative or the First Priority Secured Parties, and (iv) agrees that notice received five (5) business days prior to the entry of an order approving such usage of cash collateral or approving such financing shall be adequate notice.
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Priority Secured Parties, receives adequate protection, including in the form of additional collateral, then the Second Priority Representative, on behalf of itself or any of the Second Priority Secured Parties, agrees that the First Priority Representative shall have a senior Lien and claim on such adequate protection as security for the First Priority Obligations and that any Lien on any additional collateral securing the Second Priority Obligations shall be subordinated to the Liens on such collateral securing the First Priority Obligations and any DIP Financing (and all obligations relating thereto) and any other Liens granted to the First Priority Secured Parties as adequate protection, with such subordination to be on the same terms that the other Liens securing the Second Priority Obligations are subordinated to such First Priority Obligations under this Agreement.
5.6 Asset Dispositions in an Insolvency Proceeding. Neither the Second Priority Representative nor any other Second Priority Secured Party shall, in an Insolvency Proceeding or otherwise, oppose any sale or disposition of any assets of any Loan Party that is supported by the First Priority Secured Parties, and the Second Priority Representative and each other Second Priority Secured Party will be deemed to have consented under Section 363 of the Bankruptcy Code (and otherwise) to any sale supported by the First Priority Secured Parties and to have released their Liens in such assets.
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Obligations and must be separately classified in any plan of reorganization proposed or adopted in an Insolvency Proceeding. To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held that the claims of the First Priority Secured Parties and Second Priority Secured Parties in respect of the Common Collateral constitute only one secured claim (rather than separate classes of senior and junior secured claims), then the Second Priority Secured Parties hereby acknowledge and agree that all distributions shall be made as if there were separate classes of senior and junior secured claims against the Loan Parties in respect of the Common Collateral (with the effect being that, to the extent that the aggregate value of the Common Collateral is sufficient (for this purpose ignoring all claims held by the Second Priority Secured Parties), the First Priority Secured Parties shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest and other claims, all amounts owing in respect of Post-Petition Interest before any distribution is made in respect of the claims held by the Second Priority Secured Parties, with the Second Priority Secured Parties hereby acknowledging and agreeing to turn over to the First Priority Secured Parties amounts otherwise received or receivable by them to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the claim or recovery of the Second Priority Secured Parties.
5.9 [Intentionally Omitted]
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any Loan Party shall include such Loan Party as a debtor-in-possession and any receiver or trustee for such Loan Party in any Insolvency Proceeding.
Section 6. Second Priority Documents and First Priority Documents.
(a) Each Loan Party and the Second Priority Representative, on behalf of itself and the Second Priority Secured Parties, agrees that it shall not at any time execute or deliver any amendment or other modification to any of the Second Priority Documents which would increase amounts payable thereunder, accelerate the time for payment of amounts due thereunder or otherwise materially increase the obligations of any Loan Party thereunder or disadvantage the First Priority Secured Parties, except amendments that affect only payments due or potentially due more than six months after the Senior Maturity Date then in effect.
(b) Each Loan Party and the First Priority Representative, on behalf of itself and the First Priority Secured Parties, agrees that it shall not at any time execute or deliver any amendment or other modification to any of the First Priority Documents which would increase the principal amount of First Priority Obligations incurred or to be incurred thereunder to an amount exceeding the Senior Debt Limit.
(c) In the event the First Priority Representative enters into any amendment, waiver or consent in respect of any of the First Priority Security Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First Priority Security Document or changing in any manner the rights of any parties thereunder, then such amendment, waiver or consent shall apply automatically to any comparable provision of the Comparable Second Lien Security Document without the consent of or action by any Second Priority Secured Party (with all such amendments, waivers and modifications subject to the terms hereof); provided that (other than with respect to amendments, modifications or waivers that secure additional extensions of credit and add additional secured creditors and do not violate the express provisions of the Second Priority Agreements), (A) no such amendment, waiver or consent shall have the effect of removing assets subject to the Lien of any Second Priority Security Document, except to the extent that a release of such Lien is permitted by Section 4.2 hereof, (B) any such amendment, waiver or consent that materially and adversely affects the rights of the Second Priority Secured Parties and does not affect the First Priority Secured Parties in a like or similar manner shall not apply to the Second Priority Security Documents without the consent of the Second Priority Representative and (C) notice of such amendment, waiver or consent shall be given to the Second Priority Representative no later than 30 days after its effectiveness, provided that the failure to give such notice shall not affect the effectiveness and validity thereof.
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Section 7. Reliance; Waivers; etc.
Section 8. Nature of Obligations.
(i) any lack of validity or enforceability of any First Priority Document;
(ii) any change in the time, place or manner of payment of, or in any other term of, all or any portion of the First Priority Obligations, or any amendment, waiver or other modification, whether by course of conduct or otherwise, or any refinancing, replacement, refunding or restatement of any First Priority Document;
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(iii) prior to the First Priority Obligations Payment Date, any exchange, release, voiding, avoidance or non-perfection of any security interest in any Common Collateral or any other collateral, or any release, amendment, waiver or other modification, whether by course of conduct or otherwise, or any refinancing, replacement, refunding or restatement of all or any portion of the First Priority Obligations or any guarantee or guaranty thereof; or
(iv) any other circumstances that otherwise might constitute a defense available to, or a discharge of, any Loan Party in respect of the First Priority Obligations, or of any of the Second Priority Representative, or any Loan Party, to the extent applicable, in respect of this Agreement.
(i) any lack of validity or enforceability of any Second Priority Document;
(ii) any change in the time, place or manner of payment of, or in any other term of, all or any portion of the Second Priority Obligations, or any amendment, waiver or other modification, whether by course of conduct or otherwise, or any refinancing, replacement, refunding or restatement of any Second Priority Document;
(iii) any exchange, release, voiding, avoidance or non-perfection of any security interest in any Common Collateral, or any release, amendment, waiver or other modification, whether by course of conduct or otherwise, or any refinancing, replacement, refunding or restatement of all or any portion of the Second Priority Obligations or any guarantee or guaranty thereof; or
(iv) any other circumstances that otherwise might constitute a defense available to, or a discharge of, any Loan Party in respect of the Second Priority Obligations, or of any of the First Priority Representative or other Loan Party, to the extent applicable, in respect of this Agreement.
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(b) In the event that any First Priority Obligations shall be refinanced, replaced or refunded, the Second Priority Representative hereby agrees, on behalf of the Second Priority Secured Parties, that at the request of the agent or lenders under the loan facility that so refinances, replaces or refunds such First Priority Obligations, it will execute and deliver a new intercreditor agreement with such agent and/or lenders on substantially the same terms as herein provided, it being understood that this provision is included for the benefit of such future agent and/or lenders and that the provisions of this Agreement with respect to the status of such refinancing, replacement or refunding loan facility as First Priority Obligations entitled to the benefits hereof shall not be affected by the absence of any such new intercreditor agreement.
(c) Pursuant to the Second Priority Agreement, and as permitted by the First Priority Agreement, the Borrower may within the limits of the Senior Debt Limit incur additional indebtedness (“Incremental Obligations”) which may be secured by a lien on the Common Collateral either on a parity with the First Lien Obligations or on a basis junior to the First Lien Obligations but senior to the Second Priority Obligations (including, without limitation, any “First Lien Notes” or “Second Lien Facility” as defined in the Existing First Priority Agreement). In connection therewith, the Second Priority Representative hereby agrees to enter into such amendments to this Agreement as may be reasonably requested by the agent and/or lenders under such additional indebtedness or by the First Priority Representative to clarify the inter-relationship of the Lien securing such indebtedness with the First Priority Liens and Second Priority Liens hereunder.
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Obligations or the Second Priority Obligations. The Second Priority Representative and the First Priority Representative hereby agree that no party shall have any duty to advise any other party of information known to it regarding such condition or any such circumstances. In the event the Second Priority Representative or the First Priority Representative, in its sole discretion, undertakes at any time or from time to time to provide any information to any other party to this Agreement, it shall be under no obligation (A) to provide any such information to such other party or any other party on any subsequent occasion, (B) to undertake any investigation not a part of its regular business routine, or (C) to disclose any other information.
9.5 Governing Law. This Agreement shall be construed in accordance with and governed by the law of the State of New York , except as otherwise required by mandatory provisions of law and except to the extent that remedies provided by the laws of any jurisdiction other than the State of New York are governed by the laws of such jurisdiction.
9.6 Submission to Jurisdiction. (a) Each party hereto hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that any First Priority Secured Party may otherwise have to bring any action or proceeding relating to this Agreement or any First Priority Documents against the Borrower or any other Loan Party or its properties in the courts of any jurisdiction.
(b) The Borrower, each other Loan Party and the Second Priority Secured Parties hereby irrevocably and unconditionally waive, to the fullest extent they may legally and effectively do so (x) any objection they may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in paragraph (a) of this Section and (y) the defense of an inconvenient forum to the maintenance of such action or proceeding.
(c) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.7. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
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JPMORGAN CHASE BANK, N.A., as First Priority Representative for and on behalf of the First Priority Secured Parties | ||
By: |
| |
Name: | Xxxxxxxxxx Xxxxxxx | |
Title: | Executive Director | |
Address for Notices: | ||
Attention: Xxxxxx Xxxxx and Xxxxxx Xxxxxx JPMorgan Chase Bank, N.A. Loan and Agency Services Group 0000 Xxxxxx, Xxxxx 00 Xxxxxxx, XX 00000 Facsimile: (000) 000-0000 | ||
With a copy to: | ||
Attention: Xxxxxxxxxx Xxxxxxxx 000 Xxxx Xxxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 Facsimile: (000) 000-0000 |
[SIGNATURE PAGE to INTERCREDITOR AGREEMENT]
DIAMOND LANE PRODUCTIONS, INC., as | ||
Second Priority Representative | ||
By: |
| |
Name: | Xxxxxx Xxxxxxxxx | |
Title: | President | |
Address for Notices: | ||
Gang Tyre Xxxxx and Xxxxx, Inc | ||
000 X. Xxxxx Xxxxx | ||
Xxxxxxx Xxxxx | ||
Attention: | Xxxxx Xxxxx and Xxxxxx Xxxxx | |
Telecopy No.: | (000) 000-0000 and (000) 000-0000 | |
With a copy to: | ||
Xxxxxxxxx, Xxxxxx and Xxxxxxxx | ||
00000 Xxxx Xxxxxxx Xxxx. | ||
Xxx Xxxxxxx, Xxxxxxxxxx 00000 | ||
Attention: | Xxxxxx Xxxxxxxxx and Xxxxxx Xxxxxx | |
Telecopy No.: | (000) 000-0000 and (000) 000-0000 |
[SIGNATURE PAGE to INTERCREDITOR AGREEMENT]
DIAMOND LANE PRODUCTIONS, INC., as | ||
Second Priority Secured Party | ||
By: |
| |
Name: | Xxxxxx Xxxxxxxxx | |
Title: | President |
[SIGNATURE PAGE to INTERCREDITOR AGREEMENT]
XXXXXX XXXXXXXXX, as | ||
Second Priority Secured Party | ||
|
[SIGNATURE PAGE to INTERCREDITOR AGREEMENT]
UNIVERSAL CITY DEVELOPMENT PARTNERS, LTD. | ||
By: |
| |
Name: | Xxxxx Xxxxxxxxx | |
Title: | Senior Vice President, Chief Financial Officer | |
Address for Notices: | ||
0000 Xxxxxxxxx Xxxxxxx Xxxxx, Xxxxxxx, XX 00000 | ||
Attention: | Xxxxx Xxxxxxxxx | |
Telecopy No.: | (000) 000-0000 | |
With a copy to: | ||
0000 Xxxxxxxxx Xxxxxxx Xxxxx, Xxxxxxx, XX 00000 | ||
Attention: | Xxxxxxxxx Xxxx, Esq. | |
Telecopy No.: | (000) 000-0000 |
[SIGNATURE PAGE to INTERCREDITOR AGREEMENT]