Exhibit 4.5
INTERCREDITOR AGREEMENT
THE BANK OF NOVA SCOTIA
as Bank Agent
U.S. BANK NATIONAL ASSOCIATION
as Mortgage Notes Indenture Trustee
and
THE BANK OF NOVA SCOTIA
as Intercreditor Agent
JUNE 4, 2002
TABLE OF CONTENTS
1. Definitions and General Provisions...........................................2
1.1 Definitions............................................................2
1.2 Other Defined Terms...................................................12
1.3 Interpretation........................................................13
2. Collateral, Priority of Liens and Subordination.............................13
2.1 Liens and Security Interests..........................................13
2.1.1 Collateral for Senior Lender Secured Obligations...............13
2.1.2 Collateral for Mortgage Notes Secured Obligations..............13
2.2 No Other Collateral...................................................13
2.3 Confirmation of Liens.................................................14
2.4 Effect................................................................14
3. Permitted Facility Amendments; Releases; Protective Advances................14
3.1 Bank Credit Facility Amendments.......................................15
3.2 Future First Lien Credit Facility Amendments..........................15
3.3 Amendments to Security Agreements.....................................16
3.4 Releases..............................................................16
3.5 Waivers...............................................................16
3.6 Protective Advances...................................................16
3.7 No Other Facility Amendments..........................................16
4. Events of Default; Remedies; Certain Actions by the Intercreditor Agent.....16
4.1 Declaration of Event of Default.......................................16
4.2 Shared Collateral.....................................................16
4.3 Requirements Regarding Exercise of Remedies...........................17
4.4 Exercise of Rights Under Security Agreements..........................18
4.4.1 Related Collateral Agreements by the Intercreditor Agent.......18
4.4.2 Separate Realization...........................................18
4.4.3 Foreclosure of Deeds of Trust..................................20
4.5 Other Duties of and Actions by the Intercreditor Agent................20
5. Representations and Warranties..............................................20
5.1 Organization..........................................................21
5.2 Authorization.........................................................21
5.3 Binding Agreement.....................................................21
5.4 No Consent Required...................................................21
5.5 No Conflict...........................................................21
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6. Appointment of the Intercreditor Agent......................................21
6.1 Appointment...........................................................21
6.2 Authority.............................................................22
6.3 Amendment of Agreements...............................................22
6.4 Responsibility........................................................22
6.5 Liability.............................................................22
6.6 Capacity..............................................................23
6.7 Resignation; Appointment of Additional Intercreditor Agents...........23
7. Miscellaneous Provisions....................................................24
7.1 Notices; Addresses....................................................24
7.2 Further Assurances....................................................26
7.3 Delay and Waiver......................................................26
7.4 Entire Agreement......................................................26
7.5 Governing Law.........................................................26
7.6 Severability..........................................................26
7.7 Headings..............................................................27
7.8 Limitations On Liability..............................................27
7.9 Consent to Jurisdiction...............................................27
7.10 Successors and Assigns................................................27
7.11 Counterparts..........................................................27
7.12 No Third Party Beneficiaries..........................................27
7.13 Additional Secured Credit Parties.....................................28
7.14 Trust Indenture Act...................................................28
EXHIBIT
Exhibit A Schedule of Consents
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INTERCREDITOR AGREEMENT
THIS
INTERCREDITOR AGREEMENT (as amended, supplemented amended and
restated or otherwise modified, the "AGREEMENT"), dated as of June 4, 2002 (the
"EFFECTIVE DATE"), is entered into by and among THE BANK OF NOVA SCOTIA, a
Canadian chartered bank ("SCOTIABANK"), as the Administrative Agent acting on
behalf of itself and the Bank Lenders pursuant to the Bank Credit Agreement (in
such capacity, the "BANK AGENT"), U.S. BANK NATIONAL ASSOCIATION, a national
banking association in its capacity as Trustee under the Mortgage Notes
Indenture (in such capacity, the "MORTGAGE NOTES INDENTURE TRUSTEE"), and
SCOTIABANK, as Intercreditor Agent hereunder and under the Related Collateral
Agreements (in such capacity, the "INTERCREDITOR AGENT").
RECITALS
A. THE CASINO RESORT. Las Vegas Sands, Inc., a Nevada corporation
("LVSI"), and Venetian Casino Resort, LLC, a Nevada limited liability company
("VENETIAN," and together with LVSI, the "COMPANY") own and operate the Venetian
Casino Resort (the "CASINO RESORT"), a Venetian-themed hotel, casino, retail,
meeting and entertainment complex, with related heating, ventilation and air
conditioning and power station facilities located at 0000 Xxx Xxxxx Xxxxxxxxx
Xxxxx, Xxxxx Xxxxxx, Xxxxxx.
B. THE BANK CREDIT FACILITY. Concurrently herewith, LVSI, Venetian,
the Bank Agent, as administrative agent, joint lead arranger and joint
bookrunner, Xxxxxxx Sachs Credit Partners L.P., as syndication agent, joint lead
arranger and joint bookrunner, and the Bank Lenders have entered into the Bank
Credit Agreement pursuant to which the Bank Lenders have agreed, subject to the
terms thereof and hereof, to provide the Bank Credit Facility to LVSI and
Venetian.
C. THE MORTGAGE NOTES INDENTURE. Concurrently herewith LVSI,
Venetian, certain guarantors named therein and the Mortgage Notes Indenture
Trustee have entered into the Mortgage Notes Indenture pursuant to which LVSI
and Venetian will issue the Mortgage Notes.
D. RE-FINANCING OF CERTAIN DEBT; CONSTRUCTION OF PHASE 1A ADDITION.
The Company intends to use a portion of the proceeds of the Bank Credit
Facility, the Mortgage Notes Proceeds and a new loan facility secured by the
Mall and certain related assets to (i) repay all amounts outstanding under the
Company's existing bank credit facility and all amounts outstanding under
certain debt instruments of the Company and certain Subsidiaries of the Company,
(ii) repurchase, defease and/or redeem all of the Company's outstanding 12 1/4%
mortgage notes due 2004 and 14 1/4% senior subordinated notes due 2005, (iii)
finance the construction of an expansion of the Casino Resort consisting of an
approximately 1,000 room hotel tower on top of the Casino Resort's existing
parking garage, an approximately 1,000 parking space expansion to the existing
parking garage and approximately 150,000 square feet of additional meeting and
conference space (collectively, the "PHASE 1A ADDITION") and (iv) pay all fees
and expenses associated with the foregoing transactions. As more particularly
described in Section 2 hereof, the Bank Credit Facility is secured by a first
priority Lien on the Collateral and the Mortgage Notes are secured by a second
priority Lien on the Collateral.
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E. SECURITY AGREEMENT. In connection with the matters provided for
herein, LVSI, Venetian and certain of their subsidiaries, as debtors thereunder,
and Scotiabank, as the Intercreditor Agent thereunder, have entered into that
certain Security Agreement as of even date herewith (as amended, supplemented,
amended and restated or otherwise modified, the "SECURITY AGREEMENT"), to
provide for, among other things, the creation of security interests in the
Collateral described therein granted to the Intercreditor Agent to secure the
Bank Secured Obligations, with first Lien priority, and to secure the Mortgage
Notes Secured Obligations, with second Lien priority.
F.
INTERCREDITOR AGREEMENT. The Secured Credit Parties desire to
enter into this Agreement in order to appoint Scotiabank as the Intercreditor
Agent hereunder and under the Related Collateral Agreements, and to set forth
certain provisions relating to their respective rights in the Collateral, the
exercise of remedies in the event of default, the application of proceeds of
enforcement and certain other matters.
NOW, THEREFORE, with reference to the foregoing recitals and in
reliance thereon, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Secured Credit Parties agree as
follows:
1. DEFINITIONS AND GENERAL PROVISIONS.
1.1 DEFINITIONS. Except as otherwise expressed and provided herein,
all capitalized terms used in this Agreement and its Exhibits shall have the
meanings provided for in this SECTION 1.1.
"ACCELERATION EVENT" means the acceleration of the maturity of all
Obligations under a Facility Agreement in accordance with the terms and
conditions of such Facility Agreement.
"ADDITIONAL BANK PROCEEDS" means the proceeds advanced by the Bank
Lenders pursuant to any Facility Amendment which increases the maximum amount of
the existing commitments under the Bank Credit Facility, subject to the
limitations on the amount thereof provided for in SECTION 3.1.1 hereof;
PROVIDED, HOWEVER, that Additional Bank Proceeds shall NOT include any amounts
advanced or re-advanced by the Bank Lenders under the Revolving Bank Loan
Commitment under the Bank Credit Facility (but any Facility Amendment of the
Bank Credit Facility to increase the $75,000,000 maximum amount of the Revolving
Bank Loan Commitment shall be subject to the provisions of SECTION 3.1.1 below).
"XXXXXXX" means Xxxxxxx X. Xxxxxxx, an individual.
"XXXXXXX RELATIVE" means (i) any spouse, child, grandchild or sibling
of Xxxxxxx, (ii) any other natural Person having a relationship by blood,
marriage or adoption not more remote than second cousin with Xxxxxxx or any
Person referenced in clause (i) of this definition or (iii) any other Person
directly or indirectly controlled by Xxxxxxx or any other Person referenced in
clause (i) or clause (ii) of this definition. For purposes of this definition,
"control" shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of
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the management or policies of any other Person, whether through the ownership of
voting securities, by agreement or otherwise.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; PROVIDED, HOWEVER,
that beneficial ownership of 10% or more of the voting securities of a Person
shall be deemed to be control.
"BANK AGENT" means Scotiabank or its successor or assignee in its
capacity as Administrative Agent under the Bank Credit Agreement.
"BANK CREDIT AGREEMENT" means that certain Credit Agreement dated as
of the Effective Date by and among LVSI, Venetian, the Bank Agent, as
administrative agent, joint lead arranger and joint bookrunner, Xxxxxxx Xxxxx
Credit Partners L.P., as syndication agent, joint lead arranger and joint
bookrunner, and the Bank Lenders, as such agreement may be amended (including,
without limitation, any amendment and restatement thereof), supplemented or
otherwise modified from time to time pursuant to a Permitted Facility Amendment,
including, without limitation, any agreement extending the maturity of,
refinancing, replacing or otherwise restructuring (including, without
limitation, increasing the aggregate principal amount that may be borrowed
thereunder but only to the extent permitted hereunder and by the terms of the
Mortgage Notes Indenture) all or any portion of the Indebtedness and other
obligations under such agreement or any successor or replacement agreement, and
whether by the same or any other agent, lender or group of lenders.
"BANK CREDIT FACILITY" means, collectively, the term loans, revolving
facility and letter of credit facility described and made available to LVSI and
Venetian by the Bank Lenders pursuant to the Bank Credit Agreement.
"BANK DEED OF TRUST" means, collectively, (1) that certain Deed of
Trust, Leasehold Deed of Trust, Assignment of Rents and Leases, Security
Agreement and Fixture Filing dated as of even date herewith, made by Venetian
and LVSI, as trustor, to First American Title Insurance Company, as trustee, for
the benefit of the Bank Agent, as beneficiary, and (2) if and when entered into,
that certain Deed of Trust, Assignment of Rents and Leases, Security Agreement
and Fixture Filing to be entered into by Venetian, as trustor, to First American
Title Insurance Company, as trustee, for the benefit of the Bank Agent, as
beneficiary, which deed of trust may be entered into at the request of the Bank
Agent after such time as (A) a separate legal parcel has been created for the
property leased by Lido Casino Resort, LLC, a Nevada limited liability company
("LIDO CASINO RESORT"), to Venetian pursuant to that certain Phase 1A Lease,
dated as of even date herewith (the "PHASE 1A LEASE"), by and between Lido
Casino Resort, as lessor, and Venetian, as lessee, and (B) such property has
been conveyed by Lido Casino Resort to Venetian, all in accordance with the
terms of the Phase 1A Lease, as each may be amended (including, without
limitation, any amendment and restatement thereof), supplemented or otherwise
modified from time to time.
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"BANK ENVIRONMENTAL INDEMNITY" means that certain Environmental
Indemnity Agreement dated as of the Effective Date by and among LVSI, Venetian
and the Bank Agent, as amended (including any amendment and restatement)
supplemented or modified from time to time.
"BANK LENDERS" means the lenders party to the Bank Credit Agreement
and the counterparties to Rate Protection Agreements (as defined in the Bank
Credit Agreement) or their successors or assignees in such capacity as lenders
or counterparties, as the case may be, under the Bank Credit Agreement.
"BANK SECURED OBLIGATIONS" means all Obligations under the Bank Credit
Facility, the Bank Security Documents and the other Loan Documents (as defined
in the Bank Credit Agreement) including, to the extent permitted under the
Mortgage Notes Indenture, Obligations in respect of Rate Protection Agreements
(as defined in the Bank Credit Agreement).
"BANK SECURITY DOCUMENTS" means the Bank Deed of Trust, the Bank
Environmental Indemnity, the Security Agreement and any other guaranties, deeds
of trust, security agreements or collateral account agreements executed from
time to time by LVSI or Venetian or direct or indirect Subsidiaries of LVSI or
Venetian in favor of the Intercreditor Agent, the Bank Agent or the Bank Lenders
to secure or guaranty the Obligations under the Bank Credit Facility.
"BANKRUPTCY CODE" means Title 11 of the United States Code entitled
"Bankruptcy," as now and hereafter in effect, or any successor statute.
"BASE RATE LOAN" shall have the meaning ascribed thereto in the Bank
Credit Agreement.
"CAPITAL STOCK" means with respect to any Person, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock of such Person, including, without limitation, if such Person is a
partnership or limited liability company, partnership or membership interests
(whether general or limited) and 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 assets of, such partnership or limited liability company.
"COLLATERAL" means all real and personal property encumbered to secure
the Senior Lender Hedging Obligations, the Bank Secured Obligations under the
Bank Security Documents, the Mortgage Notes Secured Obligations under the
Mortgage Notes Indenture Security Documents, or obligations under any Future
First Lien Credit Facility, including, without limitation, the Shared
Collateral.
"COMMITMENT" means, with respect to the Bank Credit Facility or any
Future First Lien Credit Facility, the aggregate principal amount of all loans
or credit extensions to the Company which may be made under such Facility.
"COMPANY GROUP" means the Company and any Subsidiary of the Company,
and references herein to "any of the Company Group" or words to that effect mean
any of the entities comprising the Company or any Subsidiary of any of them.
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"CONSENTS" means the consents described on EXHIBIT A attached hereto
and incorporated herein by reference.
"CONTROLLING PARTY" means one or more Secured Credit Parties with the
right to direct the Intercreditor Agent with respect to any decisions or actions
made or taken or to be made or taken with respect to Collateral pursuant to any
of the Related Collateral Agreements (including, without limitation, the matters
provided for in SECTION 4.4.1 and SECTION 4.5), determined in accordance with
the following:
(1) except with respect to Specified Actions, the Controlling
Party with respect to any Collateral shall be the Secured Credit Party
or Parties which, at the time any direction or consent is required or
may be given, has the most senior Liens on or security interests in
such Collateral as established pursuant to SECTION 2.1; PROVIDED that,
in the event two or more Secured Credit Parties have PARI PASSU senior
Liens on or security interest in Collateral, then, as between such
Secured Parties, Controlling Party shall refer to the Secured Party
that holds the largest amount of Obligations that are secured by such
PARI PASSU Lien.
(2) with respect to Specified Actions, the Controlling Party
shall mean all of the Secured Credit Parties;
PROVIDED, HOWEVER, that in the event Xxxxxxx or any Xxxxxxx Relative directly or
indirectly owns an interest (other than a participation) in excess of fifteen
percent (15%) of the aggregate Indebtedness under any Facility (the percentage
of the total Indebtedness attributable to Xxxxxxx or any Xxxxxxx Relative shall
be determined in accordance with the procedure demonstrated by the following
example: a direct or indirect 50% interest in a $70 million portion of a $140
million Indebtedness would equal a 25% interest in such Indebtedness), then the
Secured Credit Party with respect to such Indebtedness (an "INELIGIBLE CREDIT
PARTY") shall not have the right to act as a Controlling Party in accordance
with the foregoing, and the Controlling Party shall be the Secured Credit Party
or Parties determined in accordance with such provisions among the Secured
Credit Parties other than the Ineligible Credit Party (the foregoing provisions
shall not, however, limit or restrict the other rights of a Secured Credit Party
under this Agreement, including, without limitation, exercise of the rights
provided for in SECTION 4.3 and in SECTION 4.4.2, whether or not such Secured
Credit Party is an Ineligible Credit Party in accordance with the foregoing).
"DEEDS OF TRUST" means, collectively, the Bank Deed of Trust and the
Mortgage Notes Indenture Deed of Trust.
"DISBURSEMENT ACCOUNT COLLATERAL" has the meaning given to the term
"Collateral" under the Disbursement Account Agreement (as such term is defined
in the Credit Agreement).
"EVENT OF DEFAULT" means, as the context requires, the occurrence and
continuance of an "Event of Default" by or with respect to the Company or any
Guarantor under the applicable Financing Agreement; PROVIDED, HOWEVER, that,
notwithstanding the provisions of
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SECTION 1.3 of this Agreement, any matter which would have constituted an "Event
of Default" under a Facility Agreement but for the waiver thereof by the Secured
Credit Party to such Facility Agreement, or but for the termination of such
Facility Agreement, shall NOT constitute an Event of Default for purposes of
this Agreement.
"EXERCISE REMEDIES" or the "EXERCISE OF REMEDIES" means the recording
of a Notice of Default under any of the Deeds of Trust, the commencement of an
action for judicial foreclosure, the appointment of a receiver, the enforcement
of personal property foreclosure proceedings (whether judicial or non-judicial),
the filing of a complaint or other action to enforce any Obligations,
realization on Collateral or the enforcement of other remedies under any Related
Collateral Agreement or any Facility Agreement, or the exercise of set off, or
any combination of the foregoing, by or for the benefit of any Secured Credit
Party hereto; PROVIDED, HOWEVER, that "Exercise Remedies" or the "Exercise of
Remedies" shall EXCLUDE, without limitation, the following: (i) the giving of
notices of default (as distinguished from RECORDING a Notice of Default); (ii)
any declaration of an Acceleration Event; and (iii) actions taken by any Secured
Credit Party or the Intercreditor Agent to perfect, or to extend or confirm the
perfection or effectiveness of, any Lien provided for herein or in the
applicable Facility Agreements.
"FACILITY" or "FACILITIES" means, as the context requires, the Bank
Credit Facility, the Mortgage Notes Indenture or any Future First Lien Credit
Facility or any of them.
"FACILITY AGREEMENTS" means, collectively, the Bank Credit Agreement,
the Mortgage Notes Indenture and the principal agreement governing any Future
First Lien Credit Facility.
"FACILITY AMENDMENT" means any amendment, modification, extension or
renewal of any Facility or Facility Agreement.
"FINANCING AGREEMENTS" means, collectively, the Bank Credit Agreement,
the Mortgage Notes Indenture, the Security Documents, the notes or instruments
delivered to the Bank Lenders, the Mortgage Notes, and the principal document
governing any other First Lien Credit Facility (as defined in the Mortgage Notes
Indenture) entered into on, prior to or after the date hereof and the security
documents notes or instruments delivered to the providers of such other First
Lien Credit Facility, as the same may be amended, supplemented, amended and
restated or otherwise modified from time to time in accordance with the terms
and conditions thereof.
"FUTURE FIRST LIEN CREDIT FACILITY" shall mean any First Lien Credit
Facility (as defined in the Mortgage Notes Indenture) that is designated by the
Borrower as a "First Lien Credit Facility" for purposes of the Mortgage Notes
Indenture (other than the Bank Credit Agreement) but only to the extent that the
providers of such Future First Lien Credit Facility become a party to this
Agreement and agree to be bound by and comply with all of the terms and
provisions of this Agreement, PROVIDED that, either such First Lien Credit
Facility is expressly permitted as such under the Bank Credit Agreement or the
required lenders under such Bank Credit Agreement have consented to the
designation.
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"GOVERNMENTAL INSTRUMENTALITY" means any national, state or local
government (whether domestic or foreign), any political subdivision thereof or
any other governmental, quasi-governmental, judicial, public or statutory
instrumentality, authority, body, agency, bureau or entity (including, without
limitation, the Nevada Gaming Authorities, any zoning authority, the FDIC, the
Comptroller of the Currency or the Federal Reserve Board, any central bank or
any comparable authority) or any arbitrator with authority to bind a party at
law.
"GUARANTOR" shall mean any "Subsidiary Guarantor" under the Bank
Credit Agreement and any "Note Guarantor" under the Mortgage Notes Indenture.
"HEDGING OBLIGATIONS" means, with respect to any Person, the
obligations of such Person under (a) interest rate or currency swap agreements,
interest rate or currency cap agreements, interest rate or currency collar
agreements and (b) other agreements or arrangements designed to protect such
Person against fluctuations in interest rates and/or currency exchange rates, in
each case, to the extent permitted to be entered into and secured with a first
priority Lien pursuant to the Mortgage Notes Indenture and the Bank Credit
Agreement; provided, however that Hedging Obligations shall not include
obligations of the Company or its Subsidiaries in respect of Rate Protection
Agreements.
"HVAC PROVIDER" means Sempra Energy Solutions, a California
corporation (as successor to Atlantic-Pacific Las Vegas, LLC, a Delaware limited
liability company).
"HVAC SERVICES AGREEMENT" means, collectively, (1) that certain Energy
Services Agreement dated as of November 14, 1997 between Venetian and the HVAC
Provider and (2) that certain Ground Lease between Venetian and the HVAC
Provider, in each case as the same has been or may be amended.
"INDEBTEDNESS," means, with respect to any Person, (1) any
indebtedness of such Person, whether or not contingent (a) in respect of
borrowed money, (b) evidenced by bonds, notes, debentures or similar instruments
or letters of credit (or reimbursement agreements in respect thereof), (c)
representing the balance deferred and unpaid of the purchase price of any
property (including Capital Lease Obligations (as defined in the Mortgage Notes
Indenture)), except any such balance that constitutes an accrued expense or
trade payable, or (d) representing any Hedging Obligations, if and to the extent
any of the foregoing indebtedness (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP (as defined in the Mortgage Notes Indenture),
(2) to the extent not otherwise included, any obligation by such Person to be
liable for, or to pay, as obligor, guarantor or otherwise, on the Indebtedness
of another Person (other than by endorsement of negotiable instruments for
collection in the ordinary course of business) and (3) to the extent not
otherwise included, Indebtedness of another Person secured by a Lien on any
asset owned by such Person (whether or not such Indebtedness is assumed by such
Person). For purposes of this definition, the term "Indebtedness" shall not
include (a) any amount of the liability in respect of an operating lease that at
such time would not be required to be capitalized and reflected as a liability
on the balance sheet in accordance with GAAP (as defined in the Mortgage Notes
Indenture), (b) any obligation under the HVAC Services Agreement as in effect on
the Issuance Date (as defined in the Mortgage Notes Indenture) or (c) any surety
bonds for claims underlying mechanics liens and any reimbursement obligations
with respect thereto so
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long as such reimbursement obligations are not then due, or are promptly paid
when due. The amount of any Indebtedness outstanding as of any date shall be (a)
the accreted value thereof, in the case of any Indebtedness with original issue
discount, and (b) the principal amount thereof, together with any interest
thereon that is more than 30 days past due, in the case of any other
Indebtedness. Notwithstanding anything herein to the contrary, Indebtedness of
the Company and its Restricted Subsidiaries (as defined in the Mortgage Notes
Indenture) shall not include any Indebtedness that has been either satisfied and
discharged or defeased through covenant defeasance or legal defeasance.
"INTERCREDITOR AGENT" means Scotiabank as the Intercreditor Agent
pursuant to SECTION 6 of this Agreement, its permitted successor or assignee in
such capacity, and any Additional Intercreditor Agent appointed pursuant to said
SECTION 6.
"LENDER" means any of the Bank Lenders, any lender under a Future
First Lien Credit Facility, any Permitted Counterparty or any of the Mortgage
Note Holders.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including, without limitation, any conditional sale or other title retention
agreement or any lease in the nature thereof.
"MALL" means that certain enclosed retail, dining and entertainment
complex of approximately 446,000 net leaseable square feet otherwise known as
the Grand Canal Shoppes Mall.
"MORTGAGE NOTE(S)" means the 11.00% Mortgage Note(s) due 2010 and any
Additional Notes (as defined in the Mortgage Notes Indenture), in each case
issued by LVSI and Venetian pursuant to the Mortgage Notes Indenture.
"MORTGAGE NOTE HOLDER(S)" means the holder(s) of the Mortgage Note(s).
"MORTGAGE NOTES INDENTURE" means that certain Mortgage Notes Indenture
dated as of the Effective Date by and among LVSI, Venetian, the guarantors
signatory thereto and the Mortgage Notes Indenture Trustee, as amended
(including any amendment and restatement thereof), supplemented or otherwise
modified from time to time.
"MORTGAGE NOTES INDENTURE DEED OF TRUST" means, collectively, (1) that
certain Deed of Trust, Leasehold Deed of Trust, Assignment of Rents and Leases,
Security Agreement and Fixture Filing dated as of even date herewith, made by
Venetian and LVSI, as trustor, to First American Title Insurance Company, as
trustee, for the benefit of the Mortgage Notes Indenture Trustee, as
beneficiary, and (2) if and when entered into, that certain Deed of Trust,
Assignment of Rents and Leases, Security Agreement and Fixture Filing to be
entered into by Venetian, as trustor, to First American Title Insurance Company,
as trustee, for the benefit of the Mortgage Notes Indenture Trustee, as
beneficiary, which deed of trust may be entered into at the request of the
Mortgage Notes Trustee after such time as (A) a separate legal parcel has been
created for the property leased by Lido Casino Resort to Venetian pursuant to
that certain Phase 1A Lease and (B) such property has been conveyed by Lido
Casino Resort to Venetian, all in accordance with the terms of the Phase 1A
Lease, as each may be amended (including,
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without limitation, any amendment and restatement thereof), supplemented or
otherwise modified from time to time.
"MORTGAGE NOTES INDENTURE ENVIRONMENTAL INDEMNITY" means that certain
Environmental Indemnity Agreement dated as of the Effective Date by and among
LVSI, Venetian and the Mortgage Notes Indenture Trustee, as amended (including,
without limitation, any amendment and restatement thereof), supplemented or
otherwise modified from time to time.
"MORTGAGE NOTES INDENTURE SECURITY DOCUMENTS" means, collectively, the
Mortgage Notes Indenture Deed of Trust, the Mortgage Notes Indenture
Environmental Indemnity, the Security Agreement and any guaranties, deeds of
trust, security agreements or collateral account agreements executed from time
to time by LVSI or Venetian or direct or indirect Subsidiaries of LVSI or
Venetian in favor of the Intercreditor Agent, the Mortgage Notes Indenture
Trustee or the Mortgage Note Holders to secure or guaranty the Obligations under
the Mortgage Notes and the Mortgage Notes Indenture.
"MORTGAGE NOTES INDENTURE TRUSTEE" means U.S. Bank National
Association or its successor or assignee in its capacity as Trustee under the
Mortgage Notes Indenture.
"MORTGAGE NOTES PROCEEDS" means the proceeds from the issuance of the
Mortgage Notes (net of any underwriter's discount and expenses).
"MORTGAGE NOTES SECURED OBLIGATIONS" means all Obligations under the
Mortgage Notes, the Mortgage Notes Indenture Security Documents and the other
Collateral Documents (as defined in the Mortgage Notes Indenture).
"NEVADA GAMING AUTHORITIES" means, collectively, the Nevada Gaming
Commission, the Nevada State Gaming Control Board and the Xxxxx County Liquor
and Gaming Licensing Board.
"NOTICE OF DEFAULT" means a notice of default which must be recorded
in the official real property records of Xxxxx County, Nevada, in order to
commence non-judicial foreclosure of a Deed of Trust in accordance with
applicable Nevada law.
"OBLIGATIONS" means (a) all loans, advances, debts, liabilities and
obligations (including reimbursement obligations in respect of letters of
credit), howsoever arising, owed by the Company and its direct and indirect
Subsidiaries under the Bank Credit Agreement, the Mortgage Notes Indenture or
otherwise to any Lender of every kind and description (whether or not evidenced
by any note or instrument and whether or not for the payment of money), direct
or indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, pursuant to the terms of the Financing Agreements, including,
without limitation, all interest (including post-petition interest even if the
claim for such amounts is not permitted by applicable law), fees, charges,
expenses, attorneys' fees and accountants fees chargeable to the Company or any
Guarantor in connection with its dealings with the Lenders and payable by the
Company or any Guarantor hereunder or thereunder, (b) Hedging Obligations of the
Company Group to any Secured Party, (c) any and all sums advanced by the
Intercreditor Agent or any other Secured Party in order to preserve the
Collateral or preserve any Secured Party's security interest in the Collateral,
including, without limitation, all Protective Advances and (d) in the event of
any
9
proceeding for the collection or enforcement of the Obligations after an Event
of Default shall have occurred and be continuing, the reasonable expenses of
retaking, holding, preparing for sale or lease, selling or otherwise disposing
of or realizing on the Collateral, or of any exercise by any Secured Party of
its rights under the Security Documents, together with reasonable attorneys'
fees and court costs.
"PERMITTED COUNTERPARTY" means the counterparties to any Hedging
Obligations entered into by the Company or its Subsidiaries which are permitted
by the Bank Credit Agreement; PROVIDED, HOWEVER, such counterparties become
parties to this Agreement and agree to be bound by and comply with all of the
terms and provisions of this Agreement.
"PERMITTED FACILITY AMENDMENT" means a Facility Amendment of the Bank
Credit Facility or a Future First Lien Credit Facility which is expressly
permitted pursuant to SECTION 3 of this Agreement.
"PERSON" means any natural person, corporation, partnership, firm,
limited liability company, association, Governmental Instrumentality or any
other entity whether acting in an individual, fiduciary or other capacity.
"PHASE 1A COMPLETION" means the receipt by LVSI, Venetian or any
Restricted Subsidiary (as such term is defined in the Mortgage Notes Indenture)
of a temporary or permanent certificate of occupancy from Xxxxx County, Nevada
for at least 950 hotel rooms in the hotel tower to be constructed as part of the
Phase 1A Addition.
"POTENTIAL EVENT OF DEFAULT" means any event, which with the passage
of time and/or the giving of notice would become an Event of Default.
"PROTECTIVE ADVANCES" means any advances with respect to (i) the
payment of any delinquent taxes or insurance premiums owed by any of the Company
Group with respect to the Casino Resort or the Phase 1A Addition, (ii) the
removal of any Lien or encumbrance on the Casino Resort or the Phase 1A Addition
(other than Liens that are junior to the Deeds of Trust) or the defense of the
Company's title thereto or of the validity, enforceability, perfection or
priority of the Liens and security interests granted pursuant to the Security
Documents or (iii) the repair, maintenance, protection or preservation of the
value of the Casino Resort or the Phase 1A Addition or (in each case) any
portion thereof, including, without limitation, for payment of (A) heating, gas,
electric and other utility bills (including, without limitation, any payments
due under the HVAC Services Agreement) or (B) amounts reasonably necessary to
prevent the provider of any financing provided pursuant to clauses (g), (j) or
(p) of the second paragraph of Section 4.09 of the Mortgage Notes Indenture from
(x) terminating its agreement to advance funds thereunder or (y) exercising
rights under the documentation applicable to its financing commitment so as to
deprive the Phase 1A Addition of the property or equipment procured with
advances made pursuant to such financing commitment.
"REA" means that certain Amended and Restated Reciprocal Easement, Use
and Operating Agreement dated as of November 14, 1997 by and among Venetian,
LVSI, Grand Canal Shops Mall Subsidiary, LLC, and Interface Group-Nevada, Inc.,
as amended by that certain First Amendment to Amended and Restated Reciprocal
Easement, Use and Operating
10
Agreement dated as of December 20, 1999 and that certain Second Amendment to
Amended and Restated Reciprocal Easement, Use and Operating Agreement dated as
of even date herewith, and as further amended, restated or supplemented in
accordance with the terms thereof from time to time.
"RELATED COLLATERAL AGREEMENTS" means the Security Agreement and the
Consents.
"REVOLVING BANK LOAN COMMITMENT" shall have the meaning ascribed to
the term "Revolving Loan Commitment" in the Bank Credit Agreement.
"SECURED CREDIT PARTIES" means the Bank Agent, the Mortgage Notes
Indenture Trustee, each Permitted Counterparty and the agent, trustee or other
representative of the Senior Lenders under a Future First Lien Credit Facility.
"SECURED LENDERS" means the Bank Agent and the Bank Lenders, each
Permitted Counterparty, the Mortgage Notes Indenture Trustee and the Mortgage
Note Holders, and the Senior Lenders under a Future First Lien Credit Facility
and their agent, trustee or other representative.
"SECURED OBLIGATIONS" means the Senior Lender Secured Obligations, the
Senior Lender Hedging Obligations, or the Mortgage Notes Secured Obligations, as
the context requires.
"SECURED PARTIES" means the Intercreditor Agent, the Bank Agent, the
Mortgage Notes Indenture Trustee, the Lenders and the Permitted Counterparties.
"SECURITY AGREEMENT" means the Security Agreement together with any
supplement thereto hereafter entered into by any Subsidiary of the Company for
the benefit of one or more of the Secured Lenders.
"SECURITY DOCUMENTS" means, collectively and without duplication, the
Bank Security Documents, the Mortgage Notes Indenture Security Documents, the
Consents, and any other deeds of trust, security agreements or collateral
account agreements entered into by LVSI or Venetian or direct or indirect
Subsidiaries of LVSI or Venetian for the benefit of any Secured Credit Party in
accordance with the terms of the Financing Agreements or this Agreement.
"SENIOR LENDER DOCUMENTS" shall mean the Bank Credit Agreement, each
of the Bank Security Documents, each document or instrument evidencing a Senior
Lender Hedging Obligation, all documents and instruments evidencing any
obligation under any Future First Lien Credit Facility and any other related
document executed or delivered pursuant to any Senior Lender Document at any
time or otherwise evidencing any Senior Lender Secured Obligation, as any such
document or instrument may from time to time be amended, renewed, restated,
supplemented or otherwise modified from time to time pursuant to a Permitted
Facility Amendment.
11
"SENIOR LENDER HEDGING OBLIGATIONS" means Obligations constituting
Hedging Obligations of the Company or any of its Subsidiaries to the extent owed
to a Permitted Counterparty.
"SENIOR LENDERS" shall mean the Persons holding Senior Lender Secured
Obligations, including, without limitation, the Bank Agent and the Bank Lenders.
"SENIOR LENDER SECURED OBLIGATIONS" shall mean Senior Lender Hedging
Obligations, the Bank Secured Obligations and all Obligations outstanding under
any Future First Lien Credit Facility.
"SHARED COLLATERAL" means the agreements, insurance proceeds and other
intangible property of Venetian or LVSI or, if applicable, any Guarantor,
described as "Shared Intangible Collateral" in the Security Agreement.
"SHARED COLLATERAL PROCEEDS" means the portion of the Shared
Collateral constituting income, rent, products or proceeds received or held by
the Intercreditor Agent, any Secured Credit Party or any Secured Lender.
"SPECIFIED ACTIONS" means any of the following except to the extent
contemplated by SECTION 3.4 below or as otherwise required or permitted under
this Agreement or the Related Collateral Agreements or as otherwise required by
law: (i) the release of any Collateral; (ii) the release of any Lien under the
Related Collateral Agreements; or (iii) any change in the priority of such
Liens.
"STANDSTILL PERIOD" means a period of forty-five (45) days commencing
upon the occurrence of a specified default, which period may be extended for an
additional fifteen (15) days upon written notice given to the other Secured
Credit Parties within such 45-day period by the Bank Agent.
"SUBSIDIARY" means, with respect to any Person, (i) any corporation,
association, limited liability company or other business entity (other than a
partnership) of which more than 50% of the total voting power of shares of
Capital Stock entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
of determination owned or controlled, directly or indirectly, by such Person or
one or more of the other Subsidiaries of that Person or a combination thereof
and (ii) any partnership of which more than 50% of the partnership's capital
accounts, distribution rights or general or limited partnership interests are
owned or controlled, directly or indirectly, by such Person or one or more of
the other Subsidiaries of that Person or a combination thereof.
1.2 OTHER DEFINED TERMS. The following terms shall have the meanings
given such terms in the Sections set forth below:
Term Section
---- -------
Additional Intercreditor Agent Section 6.7.2
Agreement Preamble
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Casino Resort Recital A
Company Recital A
Effective Date Preamble
First Lien Agent Section 2.2.2
LVSI Recital A
Phase 1A Addition Recital D
Realization Section 4.4.2
Scotiabank Preamble
Security Agreement Recital E
Separate Unified Realization Section 4.4.2
Venetian Recital A
1.3 INTERPRETATION. To the extent that reference is made in this
Agreement to any term defined in, or to any other provision of, any other
agreement, such term or provision shall continue to have the original meaning
thereof notwithstanding any termination, expiration or amendment of such other
agreement; PROVIDED, HOWEVER, that upon any formal written amendment of any
agreement to which all of the Secured Credit Parties are parties, to the extent
such amendment modifies terms defined therein or other provisions thereof which
are referred to in this Agreement, then such references herein shall be to such
terms or provisions as so amended.
2. COLLATERAL, PRIORITY OF LIENS AND SUBORDINATION.
2.1 LIENS AND SECURITY INTERESTS. The Secured Credit Parties agree
that each Secured Lender shall have the benefit of the following Liens on and
security interests in the Collateral:
2.1.1 COLLATERAL FOR SENIOR LENDER SECURED OBLIGATIONS. The
Senior Lender Secured Obligations shall be secured by first priority Liens on
and security interests in the Collateral.
2.1.2 COLLATERAL FOR MORTGAGE NOTES SECURED OBLIGATIONS. The
Mortgage Notes Secured Obligations shall be secured by second priority Liens on
and security interests in the Collateral (other than the Disbursement Account
Collateral), which second priority Liens and security interests shall be subject
and subordinate to the Liens and security interests in the Collateral securing
the Senior Lender Secured Obligations.
Under the Related Collateral Agreements, the Liens and security
interests in the Collateral described therein have been granted to the
Intercreditor Agent on behalf of the Secured Credit Parties, with the Lien
priorities provided for in this SECTION 2.1.
2.2 NO OTHER COLLATERAL. Except as provided in SECTION 2.1 and in
this SECTION 2.2, no Secured Credit Party in its capacity as such shall be
entitled to receive and hold, directly or indirectly, any Liens on or security
interests in (i) any property or assets owned directly or indirectly by any of
the Company Group or (ii) any Capital Stock in the Company or in any Affiliate
of the Company. Except for the Disbursement Account Collateral, no Senior
Secured Lender in its capacity as such may hold a Lien in any Collateral that is
not also pledged
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to the Mortgage Notes Indenture Trustee. In connection with any Permitted
Facility Amendment, the Bank Agent or any other agent or representative of the
Senior Lenders under a Future First Lien Credit Facility (the "FIRST LIEN
AGENT") may receive and hold Liens on and security interests for the benefit of
the Bank Lenders, or such other Senior Lenders, as the case may be, in any other
assets or property owned directly or indirectly by any of the Company Group
OTHER than any Capital Stock in the Company or any Affiliate of the Company, in
each case, so long as such additional collateral is also pledged for the benefit
of the Mortgage Notes Indenture Trustee.
2.3 CONFIRMATION OF LIENS. Each Secured Credit Party hereto hereby
confirms and agrees that the Liens and security interests held by or for the
benefit of each Secured Lender in the Collateral, as provided for in the
preceding provisions of this SECTION 2 shall secure all Obligations of the
Company Group or any of them now or hereafter owing to each Secured Lender in
connection with the applicable Facility or Senior Lender Hedging Obligation
throughout the term of this Agreement, in each case with the priority specified
in SECTION 2.1, notwithstanding (i) the availability of any other collateral to
any Secured Lender, (ii) the actual date and time of execution, delivery,
recording, filing and perfection of any of the Security Documents or (iii) the
fact that any Lien or security interest created by any of the Security
Documents, or any claim with respect thereto, is or may be subordinated, avoided
or disallowed in whole or in part under the Bankruptcy Code or other applicable
federal or state law. Notwithstanding any other provision in this Agreement to
the contrary, any Indebtedness owed to a Secured Credit Party which are secured
by property that does not also secure the Mortgage Notes Secured Obligations
(other than the Disbursement Account Collateral) shall NOT be secured by the
Collateral. In the event of a proceeding, whether voluntary or involuntary, for
insolvency, liquidation, reorganization, dissolution, bankruptcy or other
similar proceedings pursuant to the Bankruptcy Code or other applicable federal
or state law, each Secured Credit Party further confirms and agrees that the
Obligations due and outstanding under and with respect to each Facility shall
include all principal, additional advances permitted hereunder, Protective
Advances made by such Secured Credit Party to the extent provided in Section
3.6, interest, default interest, LIBOR breakage and swap breakage, post petition
interest and all other amounts due thereunder, for periods before and for
periods after the commencement of any such proceedings, even if the claim for
such amounts is disallowed pursuant to applicable law, and all proceeds from the
sale or other disposition of the Collateral shall be paid to the Secured Lenders
in the order and priority provided for in this SECTION 2 notwithstanding the
disallowance of any such claim or the invalidity or subordination of any Lien on
or security interest in the Collateral under applicable law.
2.4 EFFECT. All provisions of this Agreement, including but not
limited to, all matters relating to the creation, validity, perfection,
priority, subordination and release of the Liens and security interests intended
to be created by the Security Documents and all provisions regarding the
allocation and priority of payments with respect to any Facility, shall survive
the filing of a proceeding under the Bankruptcy Code and be fully enforceable by
and against each Secured Credit Party hereto during any such proceeding.
3. PERMITTED FACILITY AMENDMENTS; RELEASES; PROTECTIVE ADVANCES.
14
3.1 BANK CREDIT FACILITY AMENDMENTS. The Bank Agent and the Bank
Lenders shall have the right, at any time and without the consent of the other
Secured Credit Parties, and without affecting the validity and priority of the
Liens on and security interests in the Collateral created by the Bank Security
Documents, to enter into a Facility Amendment with respect to the Bank Credit
Facility or the Obligations evidenced thereby, PROVIDED that, after giving
effect to such Facility Amendment, the following conditions are satisfied:
3.1.1 in the event that the maximum amount of the Commitment
under the Bank Credit Facility is increased pursuant to such Facility Amendment,
then the amount of Additional Bank Proceeds advanced and outstanding pursuant to
such Facility Amendment shall not exceed, together with all other Indebtedness
of the Company, the amount permitted to be incurred by the Company and secured
by a first priority Lien pursuant to the Mortgage Notes Indenture; and
3.1.2 such Facility Amendment shall not result in the creation of
a Lien or security interest on additional collateral except in accordance with
the provisions of SECTION 2.2.2 above.
Any Facility Amendment of the Bank Credit Facility in conformity with
the foregoing shall constitute a Permitted Facility Amendment under this
Agreement. The provisions of SECTION 2 hereof with respect to the validity,
priority, perfection and subordination of all Liens on and security interests in
the Collateral to secure the Bank Secured Obligations shall continue to apply to
the Bank Credit Facility as so amended, modified or refinanced.
3.2 FUTURE FIRST LIEN CREDIT FACILITY AMENDMENTS. A First Lien Agent
and the Senior Lenders under a Future First Lien Credit Facility shall have the
right, at any time and without the consent of the other Secured Credit Parties,
and without affecting the validity and priority of the Liens on and security
interests in the Collateral created by the collateral documents relating to such
Future First Lien Credit Facility, to enter into a Facility Amendment with
respect to such Future First Lien Credit Facility or the Obligations evidenced
thereby, PROVIDED that, after giving effect to such Facility Amendment, the
following conditions are satisfied:
3.2.1 in the event that the maximum amount of the Commitment
under the Future First Lien Credit Facility is increased pursuant to such
Facility Amendment, then the amount of additional proceeds advanced and
outstanding pursuant to such Facility Amendment shall not exceed, together with
all other Indebtedness of the Company, the amount permitted to be incurred by
the Company and secured by a first priority Lien pursuant to the Bank Credit
Agreement or Mortgage Notes Indenture; and
3.2.2 such Facility Amendment shall not result in the creation of
a Lien or security interest on additional collateral except in accordance with
the provisions of SECTION 2.2.2 above.
Any Facility Amendment of a Future First Lien Credit Facility in
conformity with the foregoing shall constitute a Permitted Facility Amendment
under this Agreement. The
15
provisions of SECTION 2 hereof with respect to the validity, priority,
perfection and subordination of all Liens on and security interests in the
Collateral to secure the Obligations under such Future First Lien Credit
Facility shall continue to apply to the Future First Lien Credit Facility as so
amended, modified or refinanced.
3.3 AMENDMENTS TO SECURITY AGREEMENTS. The Mortgage Notes Trustee
agrees to any amendments, waivers or consents in respect of any Security
Documents to the extent required under the second paragraph of Section 9.1 of
the Mortgage Notes Indenture.
3.4 RELEASES. The Mortgage Notes Indenture Trustee agrees to release
its Lien on portions of the Collateral as and when required pursuant to Section
10.03 of the Mortgage Notes Indenture.
3.5 WAIVERS. Any Secured Credit Party may, without the consent of the
other Secured Credit Parties, defer any payments due under its Facility or
agreement relating to Senior Lender Hedging Obligations to which it is a party
or waive any provisions thereof.
3.6 PROTECTIVE ADVANCES. Prior to Phase 1A Completion, in the event
that an Event of Default or a Potential Event of Default occurs, thereafter any
Secured Credit Party may, without the consent of the other Secured Credit
Parties and without affecting the validity or priority of any Liens on or
security interests in the Collateral created by the Security Documents, make
Protective Advances, PROVIDED that the Secured Credit Party making any such
Protective Advance shall have the right to specify the costs to be paid from the
proceeds of such Protective Advance.
3.7 NO OTHER FACILITY AMENDMENTS. Any Facility Amendment of the Bank
Credit Facility or Future First Lien Credit Facility that does not comply with
the provisions set forth in this SECTION 3 shall not be effective unless the
prior written consent of the other Secured Credit Parties shall have been
obtained, in which event such Facility Amendment shall constitute a Permitted
Facility Amendment.
4. EVENTS OF DEFAULT; REMEDIES; CERTAIN ACTIONS BY THE INTERCREDITOR
AGENT.
4.1 DECLARATION OF EVENT OF DEFAULT. Each Secured Credit Party may
declare an Event of Default under its Facility Agreement and accelerate all
Obligations due thereunder, to the extent and on the terms and conditions
provided for in such Facility Agreement; PROVIDED, HOWEVER, that (a) no Secured
Credit Party shall be entitled to Exercise Remedies against any of the Company
Group or with respect to the Collateral except as set forth in SECTION 4.3 and
(b) prior to Phase 1A Completion, each Secured Credit Party agrees to reinstate
its Facility and to recommence funding thereunder if the conditions provided for
in SECTION 4.3.4 are satisfied.
4.2 SHARED COLLATERAL. Any Shared Collateral Proceeds received by the
Intercreditor Agent shall, except to the extent otherwise required pursuant to
the REA, be retained by the Intercreditor Agent in an account maintained by the
Intercreditor Agent for the benefit of the Secured Parties and (i) shall be used
to complete the Phase 1A Addition pursuant to funding mechanics reasonably
acceptable to the Bank Agent or (ii), if received after Phase 1A Completion,
shall be applied to repayment of the Obligations of the Secured Lenders in the
order of priority of their respective Liens on the Collateral in accordance with
SECTION 2.1
16
hereof, subject to their respective Facilities. Notwithstanding the foregoing,
all rents and other proceeds received by the Intercreditor Agent prior to Phase
1A Completion in respect of Space Leases (as defined in the Bank Deed of Trust)
shall be applied (i) first to make Protective Advances, (ii) second, to pay
interest due and payable under the Bank Credit Agreement and (iii) third, to
complete the Phase 1A Addition pursuant to funding mechanics reasonably
acceptable the Bank Agent.
4.3 REQUIREMENTS REGARDING EXERCISE OF REMEDIES. Each Secured Credit
Party shall be entitled to declare an Acceleration Event and Exercise Remedies
against any of the Company Group or with respect to the Collateral in accordance
with the terms of its Facility Agreement subject to compliance with each of the
following conditions:
4.3.1 such Secured Credit Party shall give written notice to the
other Secured Credit Parties of the matter which constitutes a default by or
with respect to any of the Company Group which would, but for the provisions of
this Agreement, permit such Secured Credit Party to declare an Acceleration
Event or Exercise Remedies.
4.3.2 each Secured Credit Party shall be subject to the
Standstill Period commencing upon the date such notice is given, and until such
Standstill Period shall have expired, no Secured Credit Party shall Exercise
Remedies against any of the Company Group or with respect to the Collateral,
except that if such Acceleration Event is declared prior to Phase 1A Completion,
the Controlling Party may direct the Intercreditor Agent with respect to the
enforcement of rights against the Shared Collateral, and the taking of
protective action with respect to the Company Group or the Collateral;
4.3.3 no Secured Credit Party shall be entitled to initiate or
join as a petitioning creditor in an involuntary proceeding against the Company
or any Affiliate of the Company until ten (10) days after the expiration of the
Standstill Period;
4.3.4 notwithstanding the expiration of the applicable Standstill
Period and the entitlement of each Secured Credit Party to Exercise Remedies
against any of the Company Group or with respect to the Collateral securing the
Facility of such Secured Credit Party, each Secured Credit Party agrees to
reinstate its Facility and to recommence funding thereunder if, prior to the
completion of the first foreclosure permitted hereunder, (a) all Events of
Default either (i) are cured in accordance with the terms of the applicable
governing document within 30 days after the declaration thereof or (ii) are
waived pursuant to SECTION 3.3 hereof (b) do not involve an Event of Default
pursuant to SECTION 8.6 OR 8.7 of the Bank Credit Agreement in respect of the
Company and (c) the Indebtedness under the relevant Facility has not been
accelerated. With respect to the Bank Credit Facility, the foregoing obligation
to reinstate its lending commitment shall apply to the Term A Loan Commitment
(as defined in the Bank Credit Agreement) and not to the Revolving Loan
Commitment (as defined in the Bank Credit Agreement).
4.3.5 upon expiration of the Standstill Period, each Secured
Credit Party shall be entitled to Exercise Remedies against any of the Company
Group or with respect to the Collateral, PROVIDED that: (a) if any Senior
Lender(s) shall accelerate the Indebtedness under the corresponding Facility of
such Senior Lender(s), then concurrently therewith or thereafter the
17
agent under the corresponding Facility of such Senior Lender(s) shall provide
the Mortgage Notes Indenture Trustee with (i) notice of such acceleration and
(ii) at least ten (10) days notice of the intent of such Senior Lenders to file
any Notice of Default; and (b) concurrently with any foreclosure by the Mortgage
Notes Indenture Trustee under the Mortgage Notes Indenture Deed of Trust, all
Obligations under the Facilities of the Senior Lenders must be paid in full.
4.3.6 if a Secured Credit Party has the right to Exercise
Remedies in accordance with the foregoing provisions of this SECTION 4.3, such
exercise of remedies under the Related Collateral Agreements shall only be made
in accordance with SECTION 4.4.1 below.
4.4 EXERCISE OF RIGHTS UNDER SECURITY AGREEMENTS.
4.4.1 RELATED COLLATERAL AGREEMENTS BY THE INTERCREDITOR AGENT.
Notwithstanding any other provision of this Agreement to the contrary, except as
provided for in SECTION 4.4.2 below, only the Intercreditor Agent shall cause
the Exercise of Remedies or otherwise act with respect to the Collateral
encumbered under the Related Collateral Agreements. The Intercreditor Agent
shall be entitled to exercise, and it shall exercise, rights and remedies and
take such action as permitted to be taken by the Intercreditor Agent under each
Related Collateral Agreement as it may be directed from time to time by the
applicable Controlling Party pursuant to the terms of this Agreement; PROVIDED
that, such Controlling Party shall have the right to Exercise Remedies only in
accordance with the applicable provisions of SECTION 4.3 above. Without limiting
the generality of the foregoing, the Intercreditor Agent shall act in accordance
with any written instructions delivered to the Intercreditor Agent from the
applicable Controlling Party hereunder, and shall refrain from exercising any
right, remedy or powers available to it or conferred on it hereunder or in the
applicable Related Collateral Agreement as set forth in such written
instructions; PROVIDED, HOWEVER, that nothing shall impair the right of the
Intercreditor Agent, in its reasonable discretion, to take or omit to take any
action deemed proper by the Intercreditor Agent and permitted hereunder and
under the applicable Related Collateral Agreement which action or omission is
not inconsistent with any written direction of the Controlling Party.
4.4.2 SEPARATE REALIZATION. With respect to foreclosure against
or other realization upon the Collateral ("REALIZATION"), unless the Secured
Credit Parties agree upon a single or coordinated Realization on all of the
Collateral for the benefit of all of the Secured Lenders (and no Secured Credit
Party shall be required to so agree), then notwithstanding the foregoing
provisions of SECTION 4.4.1 limiting enforcement of the Related Collateral
Agreements to the Intercreditor Agent (acting on the direction of the
Controlling Party), any Secured Credit Party holding subordinate Liens on any
personal property Collateral encumbered under the Security Agreements, so that
such Secured Credit Party is not a Controlling Party with respect to such
personal property Collateral, shall have the right to effect a unified sale of
such personal property Collateral together with its real property Collateral,
I.E., simultaneous Realization under the applicable Deeds of Trust and the
applicable Security Agreements (a "SEPARATE UNIFIED REALIZATION") in accordance
with the following terms and conditions of this SECTION 4.4.2:
4.4.2.1 Realization by such Secured Credit Party must be
permitted in accordance with the terms and conditions of SECTION 4.3 above.
18
4.4.2.2 The date of such Separate Unified Realization shall
be not earlier than thirty (30) days following the date such Secured Credit
Party has given the other Secured Parties notice of its election to pursue
Separate Unified Realization.
4.4.2.3 With respect to the personal property Collateral to
be sold at such Separate Unified Realization, the electing Secured Credit Party
or an agent on its behalf (other than the Intercreditor Agent) shall have the
right to schedule such sale, the right to give any required notices of such
sale, the right to conduct such sale in conjunction with the foreclosure or
other realization under such Secured Credit Party's Deed of Trust, and the right
to take any other actions necessary for a secured party to so foreclose such
security interests in accordance with applicable law, but such Secured Credit
Party shall take no other action with respect to such personal property
Collateral, including, without limitation, giving any other notices or
directions to the debtor, the Intercreditor Agent, the account party on any
assigned account or the contract obligor on any assigned contract; freezing or
otherwise taking action against any account of the Company; seeking the
appointment of a receiver; bringing any action against the Company; or taking
any action to Realize on such Collateral other than at the Separate Unified
Realization in accordance with this SECTION 4.4.2.
4.4.2.4 The rights of an electing Secured Credit Party
under SECTION 4.4.2.3 may be exercised by such Secured Credit Party or by an
agent or attorney on behalf of such Secured Credit Party; such rights shall not
be exercised by the Intercreditor Agent.
4.4.2.5 The Intercreditor Agent and the other Secured
Credit Parties shall permit an electing Secured Credit Party to conduct such
Separate Unified Realization; PROVIDED, HOWEVER, that the Intercreditor Agent
shall not be required to conduct or participate in such Separate Unified
Realization. Subject to the obligation to permit the electing Secured Credit
Party to conduct such Separate Unified Realization, the Controlling Party with
respect to such Collateral shall continue to have the sole right to direct the
Intercreditor Agent in accordance with this Agreement, and in connection
therewith, may, without limitation, cause the Intercreditor Agent to schedule
and conduct Realization on such Collateral at any time and cause the
Intercreditor Agent to take such other actions as may be permitted under the
terms of any of the Related Collateral Agreements.
4.4.2.6 Except for the extinguishment of junior Liens and
security interests by operation of law upon any Separate Unified Realization, no
Separate Unified Realization shall operate to terminate any Security Agreement
creating the security interest then realized upon, or to terminate any other
Related Collateral Agreement, and all security interests, Liens and other
interests of the Intercreditor Agent and the other Secured Lenders under each
Security Agreement shall (except to the extent extinguished by operation of law,
as aforesaid) survive such Separate Unified Realization and shall remain
enforceable by the Intercreditor Agent and the other Secured Lenders. The
purchaser at such Separate Unified Realization, whether the Secured Credit Party
conducting same or any other Person, shall acquire title to any Collateral sold
at such sale subject to the continuing encumbrances, Liens and security
interests in favor of the other Secured Lenders (except to the extent
extinguished by operation of law, as aforesaid).
19
4.4.2.7 The Secured Credit Party conducting any Separate
Unified Realization shall, subject to SECTION 4.3.5(b) above, be entitled to
receive the proceeds, if any, from the sale of the Collateral thereunder in
accordance with applicable law (including, without limitation, payment of excess
proceeds to secured parties with junior Liens).
4.4.3 FORECLOSURE OF DEEDS OF TRUST. The provisions of the
preceding SECTION 4.4.1 and SECTION 4.4.2 shall not restrict the right of a
Secured Credit Party to Exercise Remedies against, and to complete a foreclosure
against or other realization upon any Collateral which constitutes an interest
in real property encumbered by a Deed of Trust granted for the benefit of such
Secured Credit Party, PROVIDED that such Exercise of Remedies, foreclosure or
other realization is permitted in accordance with the applicable provisions of
SECTION 4.3.
4.5 OTHER DUTIES OF AND ACTIONS BY THE INTERCREDITOR AGENT. To the
extent not otherwise provided for by this Agreement, with respect to the Related
Collateral Agreements, the Intercreditor Agent may take and shall take, or
refrain from taking, action in its capacity as the Intercreditor Agent
thereunder, in accordance with the following provisions.
4.5.1 the Intercreditor Agent shall take such actions as it may
be specifically required to take under the express terms of the Related
Collateral Agreements and as otherwise may be required by law;
4.5.2 the Intercreditor Agent may take such action or refrain
from taking such action as it may reasonably deem necessary for the normal
conduct of its business as Intercreditor Agent hereunder and under the Related
Collateral Agreements, or to the extent deemed necessary by the Intercreditor
Agent, for purposes of preservation of the Collateral or the rights or interests
of the Secured Credit Parties thereunder; PROVIDED that, unless instructed in
writing by the Controlling Party to the contrary, the Intercreditor Agent shall
have no obligation or liability as a result of its taking or failing to take
actions pursuant to this SUBSECTION 4.5.2;
4.5.3 with respect to any other action or omission relating to
all or any portion of the Collateral, the Intercreditor Agent shall take such
actions or refrain from taking such action as the Controlling Party with respect
to such Collateral may direct in writing;
4.5.4 with respect to any other matter relating to the Related
Collateral Agreements, the Intercreditor Agent shall act or refrain from acting
in accordance with the written instructions of the Controlling Party, until the
Senior Lender Secured Obligations are repaid in full, and thereafter the
Mortgage Notes Indenture Trustee; and
4.5.5 beyond its duties set forth herein and in the Related
Collateral Agreements and as may be required by law, the Intercreditor Agent
shall not have any duty to any of the Company Group, to the Secured Credit
Parties or to the Secured Lenders as to the Collateral in its possession or
control under the Related Collateral Agreements or in the possession or control
of any agent or nominee of it or as to the preservation of rights against prior
parties or any other rights pertaining thereto except as required by applicable
law.
5. REPRESENTATIONS AND WARRANTIES. Each Secured Credit Party represents
and warrants to each other Secured Credit Party as follows:
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5.1 ORGANIZATION. It is duly organized and is validly existing under
the laws of the jurisdiction under which it was organized with full power to
execute, deliver and perform this Agreement and consummate the transactions
contemplated hereby.
5.2 AUTHORIZATION. All actions necessary to authorize the execution,
delivery and performance of this Agreement on behalf of such party have been
duly taken, and all such actions continue in full force and effect as of the
date hereof.
5.3 BINDING AGREEMENT. It has duly executed and delivered this
Agreement and this Agreement constitutes the legal, valid and binding agreement
of such party enforceable in accordance with its terms subject to (i) applicable
bankruptcy, reorganization, insolvency and moratorium laws, and (ii) principles
of equity, which may apply regardless of whether a proceeding is brought in law
or in equity.
5.4 NO CONSENT REQUIRED. To the best of its knowledge, no consent of
any other party and no consent, license, approval or authorization of, or
exemption by, or registration or declaration or filing with, any governmental
authority, bureau or agency is required in connection with the execution,
delivery or performance by such party of this Agreement or consummation by such
party of the transactions contemplated by this Agreement.
5.5 NO CONFLICT. None of the execution, delivery and performance of
this Agreement nor the consummation of the transactions contemplated by this
Agreement will (i) violate or conflict with any provision of the organizational
or governing documents, if any, of such party, (ii) to the best of its
knowledge, violate, conflict with, or result in the breach or termination of, or
otherwise give any other contracting party the right to terminate, or constitute
(or with notice or lapse of time, or both, would constitute) a default under the
terms of any contract, mortgage, lease, bond, indenture, agreement or other
instrument to which such party is a party or to which any of its properties are
subject, (iii) to the best of its knowledge, result in the creation of any Lien,
charge, encumbrance, mortgage, lease, claim, security interest or other right or
interest upon the properties or assets of such party pursuant to the terms of
any such contract, mortgage, lease, bond, indenture, agreement, franchise or
other instrument, (iv) violate any judgment, order, injunction, decree or award
of any court, arbitrator, administrative agency or governmental or regulatory
body of which it has knowledge against, or binding upon such party or upon any
of the securities, properties, assets or business of such party or (v) to the
best of its knowledge, constitute a violation by such party of any statute, law
or regulation that is applicable to such party.
6. APPOINTMENT OF THE INTERCREDITOR AGENT.
6.1 APPOINTMENT. Scotiabank is hereby appointed the Intercreditor
Agent hereunder and under the Related Collateral Agreements and each Secured
Credit Party hereby authorizes the Intercreditor Agent to enter into the
applicable Related Collateral Agreements which secure Obligations to such
Secured Credit Party and to act as its agent in accordance with the terms of
this Agreement and such Related Collateral Agreement. The Intercreditor Agent
agrees to act upon the express conditions contained in this Agreement and the
Related Collateral Agreements, as applicable. The provisions of this SECTION 6
are solely for the benefit of the Intercreditor Agent and the Secured Credit
Parties, and none of the Company, any Affiliate of
21
the Company, Xxxxxxx or any Xxxxxxx Relative shall have any rights as a third
party beneficiary of any of the provisions thereof. In performing its functions
and duties under this Agreement, the Intercreditor Agent shall act solely as an
agent of the Secured Credit Parties and does not assume and shall not be deemed
to have assumed any obligation towards or relationship of agency or trust with
or for the Company, any Affiliate of the Company, Xxxxxxx or any Xxxxxxx
Relative.
6.2 AUTHORITY. Each Secured Credit Party irrevocably authorizes the
Intercreditor Agent to take such actions on such Secured Credit Party's behalf
and to exercise such powers, rights and remedies under the Related Collateral
Agreements as are specifically delegated or granted to the Intercreditor Agent
by the terms hereof and thereof, together with such powers, rights and remedies
as are reasonably incidental thereto. The Intercreditor Agent shall have only
those duties and responsibilities that are expressly specified in this Agreement
and the applicable Related Collateral Agreement. The Intercreditor Agent agrees
to act in accordance with instructions of the Controlling Party pursuant to
SECTION 4.4.1. The Intercreditor Agent may exercise such powers, rights and
remedies and perform such duties by or through its agents or employees. The
Intercreditor Agent shall not have, by reason of this Agreement or the Related
Collateral Agreements, a fiduciary relationship in respect of any Secured Credit
Party or any other Person, and nothing in this Agreement or the Related
Collateral Agreements, expressed or implied, is intended to or shall be so
construed as to impose upon the Intercreditor Agent any obligations in respect
of this Agreement or the Related Collateral Agreements except as expressly set
forth herein or therein.
6.3 AMENDMENT OF AGREEMENTS. Subject to SECTION 3.3 hereof, without
the prior written consent of the Secured Credit Parties, the Intercreditor Agent
shall not amend any of the Related Collateral Agreements to which it is a party.
Subject to Section 3.3 hereof, upon approval by the Secured Credit Parties of
any proposed amendment to the Related Collateral Agreements, the Intercreditor
Agent shall execute and deliver such amendment, in each case in its capacity as
Intercreditor Agent hereunder.
6.4 RESPONSIBILITY. The Intercreditor Agent shall not be responsible
to any Secured Credit Party for the execution, effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Agreement, any
Related Collateral Agreement or any Collateral or for any representations,
warranties, recitals or statements made herein or therein or made in any written
or oral statements or in any financial or other statements, instruments, reports
or certificates or any other documents furnished to the Secured Credit Parties
in connection with the Collateral and the transactions contemplated hereby or
thereby or any default under any agreement included in the Collateral or for the
financial condition or business affairs of the Company or any other Person
liable for the payment of any Obligations, nor shall the Intercreditor Agent be
required to ascertain or inquire as to the performance or observance of any of
the terms, conditions, provisions, covenants or agreements contained in this
Agreement or any other Financing Agreement or any Collateral or as to the
existence or possible existence of any Event of Default, Potential Event of
Default or any default under any agreement included in the Collateral.
6.5 LIABILITY. Neither the Intercreditor Agent nor any of its
officers, directors, employees or agents shall be liable to any Secured Credit
Party or any other Person for any
22
action taken or omitted by the Intercreditor Agent under or in connection with
this Agreement, the Related Collateral Agreements or the Collateral except to
the extent caused by the Intercreditor Agent's gross negligence, bad faith or
willful misconduct. The Intercreditor Agent shall be entitled to refrain from
any act or the taking of any action (including the failure to take an action) in
connection with this Agreement, the Related Collateral Agreements or the
Collateral or from the exercise of any power, discretion or authority vested in
it hereunder or thereunder unless and until the Intercreditor Agent shall have
received instructions in respect thereof in accordance with this Agreement, and
upon such instruction, the Intercreditor Agent shall be entitled to act or
(where so instructed) refrain from acting, or to exercise such power, discretion
or authority, in accordance with such instructions. Without prejudice to the
generality of the foregoing, (i) the Intercreditor Agent shall be entitled to
rely, and shall be fully protected in relying, upon any communication,
instrument or document believed by it to be genuine and correct and to have been
signed or sent by the proper person or persons, and shall be entitled to rely,
and shall be protected in relying, on opinions and judgments of attorneys (who
may be attorneys for the Company and the Affiliates of the Company),
accountants, experts and other professional advisors selected by it and (ii) no
Secured Credit Party shall have any right of action whatsoever against the
Intercreditor Agent as a result of the Intercreditor Agent acting or (where so
instructed) refraining from acting under this Agreement or any Related
Collateral Agreement in its capacity as Intercreditor Agent to the extent
authorized, permitted, required or instructed in accordance with the terms of
this Agreement. Each Secured Lender shall, from time to time on demand by the
Intercreditor Agent, indemnify the Intercreditor Agent, in proportion to its pro
rata share of the aggregate amount of the Secured Obligations outstanding at
such time, against any and all claims, costs, losses, expenses (including legal
fees) and liabilities (collectively, "LOSSES"), which the Intercreditor Agent
may incur, other than by reason of its own gross negligence or willful
misconduct, in acting in its capacity as Intercreditor Agent hereunder.
Notwithstanding the foregoing, if any Losses are incurred by the Intercreditor
Agent in taking actions pursuant to instructions issued by a Controlling Party,
and the issuance of such instructions constitutes gross negligence or willful
misconduct, such Controlling Party shall bear the full amount of the indemnity
provided herein.
6.6 CAPACITY. The agency hereby created shall in no way impair or
affect any of the rights and powers of, or impose any duties or obligations
upon, the Intercreditor Agent in its individual capacity as the Bank Agent, a
Bank Lender or a Secured Credit Party hereunder. The Intercreditor Agent and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of banking, trust, financial advisory or other business with the Company or
any Affiliate of the Company as if it were not performing the duties specified
herein, and may accept fees and other consideration from any of the Company
Group for services in connection with this Agreement and otherwise without
having to account for the same to other Secured Credit Parties.
6.7 RESIGNATION; APPOINTMENT OF ADDITIONAL INTERCREDITOR AGENTS.
6.7.1 The Intercreditor Agent may resign at any time by giving
thirty (30) days' prior written notice thereof to the Secured Credit Parties,
and the Intercreditor Agent may be removed at any time, with or without cause,
by an instrument in writing signed by the Bank Agent, delivered to the Mortgage
Notes Indenture Trustee and to the Intercreditor Agent. Upon any such notice of
resignation or any such removal, the Senior Lenders shall have the
23
right, upon seven days' notice to the Mortgage Notes Indenture Trustee to
appoint a successor Intercreditor Agent. Any resignation shall take effect upon
the earlier of acceptance of such appointment by a successor Intercreditor Agent
and expiration of the 30-day period described above. Upon the acceptance of any
appointment as Intercreditor Agent hereunder by a successor Intercreditor Agent,
that successor Intercreditor Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring or removed
Intercreditor Agent. The retiring or removed Intercreditor Agent shall
reasonably cooperate with the successor Intercreditor Agent upon such
appointment, to assist with such transition. Upon the date of such removal or
the effective date of such resignation (but not later than the date of such
succession) the retiring or removed Intercreditor Agent shall be discharged from
its duties and obligations under this Agreement; PROVIDED, HOWEVER, that
commencing upon the date the Intercreditor Agent sends its notice of
resignation, the Intercreditor Agent shall not be required to take any action
hereunder until and unless the Secured Credit Party or Parties requesting that
such action be taken agree to reimburse all costs of the Intercreditor Agent in
connection therewith, and agree to indemnify, defend and hold the Intercreditor
Agent harmless from all claims, liabilities, costs or expenses (including,
without limitation, attorneys' fees) in connection with or arising out of such
actions taken by the Intercreditor Agent.
6.7.2 Any Controlling Party may elect to appoint one or more
additional Intercreditor Agents with respect to its interests in the Collateral
(each an "ADDITIONAL INTERCREDITOR AGENT") and the Intercreditor Agent shall,
upon receipt of written instructions of such Controlling Party, execute and
deliver all instruments and agreements necessary or proper to appoint the other
person or persons selected by the Controlling Party to act as an Additional
Intercreditor Agent with respect to such Collateral. Upon the written acceptance
of the terms of such appointment and written notice thereof to the Secured
Credit Parties and each member of the Company Group party to the Related
Collateral Agreements, each such additional or successor Additional
Intercreditor Agent shall (i) thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the Intercreditor Agent with
respect to such Collateral and replace the prior Intercreditor Agent with
respect to matters pertaining to such Collateral, (ii) be subject to the terms
and provisions of this Agreement and the other Related Collateral Agreements as
they apply to the Intercreditor Agent and such Collateral and (iii) not have any
other rights or duties hereunder or under the Related Collateral Agreements with
respect to any other Collateral or any other matter.
6.7.3 After any retiring, removed or replaced Intercreditor
Agent's resignation, removal or replacement hereunder as Intercreditor Agent,
the provisions of this SECTION 6.7 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Intercreditor Agent under this
Agreement.
7. MISCELLANEOUS PROVISIONS.
7.1 NOTICES; ADDRESSES. Any communications between the Secured Credit
Parties hereto or notices herein to be given may be given to the following
addressees:
If to the Bank Agent: The Bank of Nova Scotia
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
24
Attn.: Xxxx Xxxxxxxxxx
Phone:(000) 000-0000
Fax: (000) 000-0000
with a copy to: The Bank of Nova Scotia
Loan Administration
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn.: Xxxxxx Xxx
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Mortgage Notes U.S. Bank National Association
Indenture Trustee: 000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attn.: Corporate Trust Department
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Intercreditor Agent: The Bank of Nova Scotia
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxx Xxxxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to: The Bank of Nova Scotia
Loan Administration
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn.: Xxxxxx Xxx
Phone: (000) 000-0000
Fax: (000) 000-0000
All notices or other communications required or permitted to be given
hereunder shall be in writing and shall be considered as properly given (a) if
delivered in person, (b) if sent by reputable overnight delivery service, (c) in
the event overnight delivery services are not readily available, if mailed by
first class mail, postage prepaid, registered or certified with return receipt
requested or (d) if sent by prepaid telex, or by telecopy with correct answer
back received. Notice so given shall be effective upon receipt by the addressee,
except that any communication or notice so transmitted by telecopy or other
direct written electronic means shall be deemed to have been validly and
effectively given on the day (if a Banking Day and, if not, on the next
following Banking Day) on which it is validly transmitted if transmitted before
4 p.m., recipient's time, and if transmitted after that time, on the next
following Banking Day; PROVIDED, HOWEVER, that if any notice is tendered to an
addressee and the delivery thereof is refused by such addressee, such notice
shall be effective upon such tender. Any party shall have
25
the right to change its address for notice hereunder to any other location by
giving no less than twenty (20) days' notice to the other parties in the manner
set forth hereinabove.
7.2 FURTHER ASSURANCES. Each Secured Credit Party (i) shall deliver
to each other Secured Credit Party and to the Intercreditor Agent such
instruments, agreements, certificates and documents as any such Person may
reasonably request to confirm the validity and priority of the Liens on and
security interests in the Collateral granted pursuant to the Security Documents
as affected hereby, (ii) shall fully cooperate with each other and with the
Intercreditor Agent and (iii) shall perform all additional acts reasonably
requested by any such Person to effect the purposes of this Agreement.
7.3 DELAY AND WAIVER. No delay or omission to exercise any right,
power or remedy accruing upon the occurrence of any Event of Default or
Potential Event of Default or any other breach or default of the Company Group
or any of them under any Facility Agreement or any Related Collateral Agreement
shall impair any such right, power or remedy of the Secured Credit Parties or
the Intercreditor Agent, nor shall it be construed to be a waiver of any such
breach or default, or an acquiescence therein, or in any similar breach or
default thereafter occurring, nor shall any waiver of any single Event of
Default or Potential Event of Default or other breach or default be deemed a
waiver of any other Event of Default or Potential Event of Default or other
breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any of the Secured
Credit Parties or the Intercreditor Agent of any Event of Default or Potential
Event of Default or other breach or default under this Agreement, any Related
Collateral Agreement or any other Financing Agreement, or any waiver on the part
of any of the Secured Credit Parties or the Intercreditor Agent, of any
provision or condition of this Agreement or any other operative document, must
be in writing and shall be effective only to the extent specifically set forth
in such writing. All remedies, either under this Agreement, under any Related
Collateral Agreement or any other Financing Agreement or by law or otherwise
afforded to any of the Secured Credit Parties or the Intercreditor Agent shall
be cumulative and not alternative (subject to any limitations on the exercise of
such remedies imposed under this Agreement).
7.4 ENTIRE AGREEMENT. This Agreement and any agreement, document or
instrument attached hereto or referred to herein integrate all the terms and
conditions mentioned herein or incidental hereto and supersede all oral
negotiations and prior writings in respect to the subject matter hereof, all of
which negotiations and writings are deemed void and of no force and effect. As
among the Secured Credit Parties, in the event of any conflict between the terms
of this Agreement and the terms of the Related Collateral Agreements, the terms
of this Agreement shall control.
7.5 GOVERNING LAW. This Agreement shall be governed by the laws of
State of
New York of the United States of America and shall for all purposes be
governed by and construed in accordance with the laws of such state without
regard to the conflict of law rules thereof other than Section 5-1401 of the
New
York General Obligations Law.
7.6 SEVERABILITY. In case any one or more of the provisions contained
in this Agreement should be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby,
26
and the parties hereto shall enter into good faith negotiations to replace the
invalid, illegal or unenforceable provision.
7.7 HEADINGS. Section headings have been inserted in this Agreement
as a matter of convenience for reference only and it is agreed that such
headings are not a part of this Agreement and shall not be used in the
interpretation of any provision of this Agreement.
7.8 LIMITATIONS ON LIABILITY. No claim shall be made by any Secured
Credit Party or any of its Affiliates against any other Secured Credit Party,
the Intercreditor Agent or any of their respective Affiliates, directors,
employees, attorneys or agents for any special, indirect, consequential or
punitive damages (whether or not the claim therefor is based on contract, tort
or duty imposed by law), in connection with, arising out of or in any way
related to the transactions contemplated by this Agreement or any act or
omission or event occurring in connection therewith; and each Secured Credit
Party hereby waives, releases and agrees not to xxx upon any such claim for any
such special, indirect, consequential or punitive damages, whether or not
accrued and whether or not known or suspected to exist in its favor.
7.9 CONSENT TO JURISDICTION. Any legal action or proceeding arising
out of this Agreement may be brought in or removed to the courts of the State of
New York, in and for the County of
New York, or of the United States of America
for the Southern District of
New York. By execution and delivery of this
Agreement, each Secured Credit Party, accepts, for its and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts for legal proceedings arising out of or in connection with this Agreement
and irrevocably consents to the appointment of the Xxxxxxxx-Xxxx Corporation
System Inc. as its agent to receive service of process in
New York,
New York.
Nothing herein shall affect the right to serve process in any other manner
including, without limitation, judicial or non-judicial foreclosure of real
property interests which are part of the Collateral. Each Secured Credit Party
hereby waives any right to stay or dismiss any action or proceeding under or in
connection with any or all of the Casino Resort, the Phase 1A Addition, this
Agreement or any other operative document brought before the foregoing courts on
the basis of forum non-conveniens.
7.10 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns; PROVIDED, HOWEVER, this Agreement shall terminate upon
the date of payment in cash in full of all Obligations then due and payable
under all Facilities of the Senior Lenders and agreements evidencing Senior
Lender Hedging Obligations.
7.11 COUNTERPARTS. This Agreement may be executed in one or more
duplicate counterparts and when signed by all of the Secured Credit Parties
listed below shall constitute a single binding agreement.
7.12 NO THIRD PARTY BENEFICIARIES. Except for the Bank Lenders, the
Mortgage Note Holders, the Permitted Counterparties and any lenders with respect
to any Future First Lien Credit Facility, the Secured Credit Parties do not
intend the benefits of this Agreement to inure to the benefit of nor shall it be
enforceable by any third party (including, without limitation, the Company, any
of its Affiliates, Xxxxxxx or any Xxxxxxx Relative) nor shall this Agreement be
construed to make or render any Secured Credit Party liable to any third party
27
(including, without limitation, the Company, any of its Affiliates, Xxxxxxx or
any Xxxxxxx Relative) for the performance or failure to perform any obligations
hereunder.
7.13 ADDITIONAL SECURED CREDIT PARTIES. Upon any refinancing,
replacement or restructuring, in whole or in part, of any Facility, or entering
into a Future First Lien Credit Facility or agreements relating to Hedging
Obligations with Permitted Counterparties (subject to the rights of the existing
Secured Credit Parties under their respective Financing Agreements with respect
to any such refinancing, replacement or restructuring of a Facility or the
entering into of such Future First Lien Credit Facility or Hedging Obligations),
the applicable lender or Permitted Counterparty shall execute a joinder or
supplement to this Agreement in form and substance reasonably satisfactory to
the then existing Secured Credit Parties. Upon the execution and delivery by
such lender(s) of such joinder or supplement, such lender(s) shall become a
"Secured Credit Party" hereunder with the same force and effect as if it were
originally a party to this Agreement and named as a "Secured Credit Party"
herein. The execution and delivery of such joinder or supplement shall not
require the consent of any other Secured Credit Party hereunder, and the rights
and obligations of each Secured Credit Party hereunder shall remain in full
force and effect notwithstanding the addition of any new Secured Credit Party as
a party to this Agreement.
7.14 TRUST INDENTURE ACT. The parties do not intend that the
provisions of this Agreement violate the requirements of the Trust Indenture Act
of 1939, as amended.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Secured Credit Parties hereto have caused this
Agreement to be executed by their respective officers or agents thereunto duly
authorized as of the day and year first above written.
Bank Agent:
THE BANK OF NOVA SCOTIA,
a Canadian chartered bank
By: /s/ Xxxx Xxxxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Managing Director
Mortgage Notes Indenture Trustee:
U.S. BANK NATIONAL ASSOCIATION,
a national banking association
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
Intercreditor Agent:
THE BANK OF NOVA SCOTIA,
a Canadian chartered bank
By: /s/ Xxxx Xxxxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Managing Director
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